Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 13183 

* * * * * 

[FR Doc. 2022–04938 Filed 3–8–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 63 

[EPA–HQ–OAR–2017–0688; FRL–5909.1– 

02–OAR] 

RIN 2060–AV03 

National Emission Standards for 

Hazardous Air Pollutants: Stationary 

Combustion Turbines; Amendments 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: The U.S. Environmental 

Protection Agency (EPA) is finalizing 

amendments to the National Emission 

Standards for Hazardous Air Pollutants 

(NESHAP) for Stationary Combustion 

Turbines. This final action removes the 

stay of the effectiveness of the standards 

for new lean premix and diffusion flame 

gas-fired turbines that was promulgated 

in 2004. 

DATES: The final rule is effective on 

March 9, 2022. 

ADDRESSES: The EPA has established a 

docket for this rulemaking under Docket 

ID No. EPA–HQ–OAR–2017–0688. All 

documents in the docket are listed in on 

the https://www.regulations.gov/ 

website. Although listed, some 

information is not publicly available, 

e.g., Confidential Business Information 

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 

form. Publicly available docket 

materials are available electronically at 

https://www.regulations.gov. Out of an 

abundance of caution for members of 

the public and our staff, the EPA Docket 

Center and Reading Room are closed to 

the public, with limited exceptions, to 

reduce the risk of transmitting COVID– 

19. Our Docket Center staff will 

continue to provide remote customer 

service via email, phone, and webform. 

We encourage the public to submit 

comments via https://

www.regulations.gov/ or email, as there 

may be a delay in processing mail and 

faxes. Hand deliveries and couriers may 

be received by scheduled appointment 

only. For further information on EPA 

Docket Center services and the current 

status, please visit us online at https:// 

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: For 

questions about this action, contact 

Melanie King, Sector Policies and 

Programs Division (D243–01), Office of 

Air Quality Planning and Standards, 

U.S. Environmental Protection Agency, 

Research Triangle Park, North Carolina 

27711; telephone number: (919) 541– 

2469; and email address: king.melanie@

epa.gov. 

SUPPLEMENTARY INFORMATION: 

Organization of this document. The 

information in this preamble is 

organized as follows: 

I. General Information 

A. Does this action apply to me? 

B. Where can I get a copy of this document 

and other related information? 

C. Judicial Review and Administrative 

Reconsideration 

II. Background and Final Amendments 

III. Public Comments and Responses 

IV. Impacts of the Final Rule 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act (PRA) 

C. Regulatory Flexibility Act (RFA) 

D. Unfunded Mandates Reform Act 

(UMRA) 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act (CRA) 

I. General Information 

A. Does this action apply to me? 

Regulated entities. Categories and 

entities potentially regulated by this 

action include industries using 

stationary combustion turbines, such as: 

Electric power generation, transmission, 

or distribution; Pipeline transportation 

of natural gas; and Crude petroleum and 

natural gas extraction (North American 

Industry Classification System Codes 

2211, 486210, 211120, 211130). This list 

is not intended to be exhaustive, but 

rather to provide a guide for readers 

regarding entities likely to be affected by 

the final action for the source category 

listed. To determine whether your 

facility is affected, you should examine 

the applicability criteria in the rule. If 

you have any questions regarding the 

applicability of any aspect of this action, 

please contact the person listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section of this preamble. 

B. Where can I get a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of this final 

action will also be available on the 

internet. Following signature by the 

EPA Administrator, the EPA will post a 

copy of this final action at: https://

www.epa.gov/stationary-sources-airpollution/stationary-combustionturbines-national-emission-standards. 

Following publication in the Federal 

Register, the EPA will post the Federal 

Register version and key technical 

documents at this same website. 

C. Judicial Review and Administrative 

Reconsideration 

Under Clean Air Act (CAA) section 

307(b)(1), judicial review of this final 

action is available only by filing a 

petition for review in the United States 

Court of Appeals for the District of 

Columbia Circuit by May 9, 2022. Under 

CAA section 307(b)(2), the requirements 

established by this final rule may not be 

challenged separately in any civil or 

criminal proceedings brought by the 

EPA to enforce the requirements. 

Section 307(d)(7)(B) of the CAA 

further provides that only an objection 

to a rule or procedure which was raised 

with reasonable specificity during the 

period for public comment (including 

any public hearing) may be raised 

during judicial review. That section of 

the CAA also provides a mechanism for 

the EPA to reconsider the rule if the 

person raising an objection can 

demonstrate to the Administrator that it 

was impracticable to raise such 

objection within the period for public 

comment 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. Any person seeking 

to make such a demonstration should 

submit a Petition for Reconsideration to 

the Office of the Administrator, U.S. 

EPA, Room 3000, WJC South Building, 

1200 Pennsylvania Ave. NW, 

Washington, DC 20460, with a copy to 

both the person(s) listed in the 

preceding FOR FURTHER INFORMATION

CONTACT section, and the Associate 

General Counsel for the Air and 

Radiation Law Office, Office of General 

Counsel (Mail Code 2344A), U.S. EPA, 

1200 Pennsylvania Ave. NW, 

Washington, DC 20460. 


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13184 Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 

1The court held in NRDC v. EPA that the EPA 

had no authority to create and delist a ‘‘low-risk 

subcategory’’ under CAA section 112(c)(9)(B)(i). 489 

F.3d at 1372. According to the court, only 

subcategories with no carcinogenic HAP emissions 

and satisfying CAA section 112(c)(9)(B)(ii) could be 

removed from the CAA section 112(c)(1) list of 

categories and subcategories (e.g., deletion of the 

non-mercury cell chlorine production subcategory, 

68 FR 70947, December 19, 2003). Otherwise, 

subcategories with any carcinogenic HAP emissions 

could only be removed as part of a complete 

removal of the entire source category under CAA 

section 112(c)(9)(B)(i), noting that the criteria in 

CAA section 112(c)(9)(B)(ii) would also need to be 

satisfied if applicable. 

II. Background and Final Amendments 

The Stationary Combustion Turbine 

NESHAP, found at 40 CFR part 63, 

subpart YYYY, was originally 

promulgated in 2004 (69 FR 10512; 

March 5, 2004). The following eight 

subcategories of stationary combustion 

turbines were defined in the 

rulemaking: (1) Emergency stationary 

combustion turbines, (2) stationary 

combustion turbines which burn 

landfill or digester gas equivalent to 10 

percent or more of the gross heat input 

on an annual basis or where gasified 

municipal solid waste is used to 

generate 10 percent or more of the gross 

heat input to the stationary combustion 

turbine on an annual basis, (3) 

stationary combustion turbines of less 

than 1 megawatt rated peak power 

output, (4) stationary lean premix 

combustion turbines when firing gas 

and when firing oil at sites where all 

turbines fire oil no more than an 

aggregate total of 1,000 hours annually 

(also referred to herein as ‘‘lean premix 

gas-fired turbines’’), (5) stationary lean 

premix combustion turbines when firing 

oil at sites where all turbines fire oil 

more than an aggregate total of 1,000 

hours annually (also referred to herein 

as ‘‘lean premix oil-fired turbines’’), (6) 

stationary diffusion flame combustion 

turbines when firing gas and when 

firing oil at sites where all turbines fire 

oil no more than an aggregate total of 

1,000 hours annually (also referred to 

herein as ‘‘diffusion flame gas-fired 

turbines’’), (7) stationary diffusion flame 

combustion turbines when firing oil at 

sites where all turbines fire oil more 

than an aggregate total of 1,000 hours 

annually (also referred to herein as 

‘‘diffusion flame oil-fired turbines’’), 

and (8) stationary combustion turbines 

operated on the North Slope of Alaska 

(defined as the area north of the Arctic 

Circle (latitude 66.5° North)). The 

NESHAP requires new or reconstructed 

stationary combustion turbines in the 

lean premix gas-fired, lean premix oilfired, diffusion flame gas-fired, and 

diffusion flame oil-fired subcategories to 

meet a formaldehyde limit of 91 parts 

per billion by volume, dry basis (ppbvd) 

at 15 percent oxygen (O2). Compliance 

is demonstrated through initial and 

annual performance testing and 

continuous monitoring of operating 

parameters. 

During the original Stationary 

Combustion Turbine NESHAP 

rulemaking, the EPA received a petition 

from the Gas Turbine Association in 

August 2002 to create and delist two 

subcategories of stationary combustion 

turbines under CAA section 112(c)(9). 

The subcategories that were called for in 

the petition were lean premix 

combustion turbines firing natural gas 

with limited oil backup and a low-risk 

combustion turbine subcategory where 

facilities would make site-specific 

demonstrations regarding risk levels. 

Additional information supporting the 

petition was provided in February 2003. 

On April 7, 2004, the EPA proposed to 

delist lean premix gas-fired turbines as 

well as three additional subcategories of 

turbines that were determined to meet 

the criteria for delisting in CAA section 

112(c)(9)(B): Diffusion flame gas-fired, 

emergency, and turbines located on the 

North Slope of Alaska (69 FR 18327; 

April 7, 2004). At the same time, the 

EPA proposed to stay the effectiveness 

of the NESHAP for new lean premix gasfired and diffusion flame gas-fired 

turbines to ‘‘avoid wasteful and 

unwarranted expenditures on 

installation of emission controls which 

will not be required if the subcategories 

are delisted.’’ (69 FR 18338; April 7, 

2004) The standards for new oil-fired 

turbines were not stayed and have been 

in effect. On August 18, 2004, the EPA 

finalized the stay of the effectiveness of 

the NESHAP for new lean premix gasfired and diffusion flame gas-fired 

turbines, pending the outcome of the 

proposed delisting (69 FR 51184; 

August 18, 2004). The EPA stated that 

it would lift the stay if the subcategories 

were not ultimately delisted, and that 

turbines constructed or reconstructed 

after January 14, 2003, would then be 

subject to the final standards. The EPA 

also explained that those turbines 

would be given the same time to 

demonstrate compliance as they would 

have if there had been no stay. 

The proposal to delist the four 

subcategories was never finalized in 

light of the 2007 decision in NRDC v. 

EPA, 489 F.3d 1364 (D.C. Cir. 2007), 

which addressed limits on the EPA’s 

ability to delist subcategories.1 In the 

2019 proposed residual risk and 

technology review (RTR) for the 

Stationary Combustion Turbine 

NESHAP, the residual risk analysis did 

not support a conclusion that the entire 

Stationary Combustion Turbines source 

category met the criteria for delisting in 

CAA section 112(c)(9)(B). The results of 

the inhalation risk assessment for the 

proposed RTR suggested that the 

maximum individual cancer risk for the 

source category was above 1-in-1 

million. Consequently, the EPA 

proposed to remove the stay of the 

standards for new lean premix and 

diffusion flame gas-fired turbines (84 FR 

15046; April 12, 2019). 

When the RTR was finalized on 

March 9, 2020, (85 FR 13525), the EPA 

did not finalize the removal of the stay 

to allow for additional time to review 

the public comments on the proposed 

removal of the stay, as well as to 

provide time to review information in a 

new petition that was submitted in 

August 2019 to delist the entire 

Stationary Combustion Turbines source 

category. In 2004, the EPA had 

determined that a stay was appropriate 

while the Agency solicited comment on 

a proposed subcategory delisting to 

avoid unwarranted expenditures on 

installation of emission controls which 

would not have been required if the 

subcategories were delisted. In the 2020 

final RTR, the Agency determined that 

it would be reasonable to delay taking 

final action on the proposal to lift the 

stay for the same reasons in light of the 

new petition. However, the EPA has 

concluded that the new petition to 

delist the source category does not 

warrant any further delay in lifting the 

stay in light of the current status of the 

EPA’s evaluation of the delisting 

petition. The EPA has not yet completed 

its evaluation of the petition or 

determined whether the petition is 

complete. If the EPA determines that the 

petition is complete, the Agency will 

then, on the basis of the Agency’s 

analysis and the Administrator’s 

discretion, either propose to grant the 

petition and request further public input 

or take final action to deny the petition. 

If a proposal to grant the petition is 

issued, a subsequent rulemaking would 

be required to finalize the delisting. 

Consequently, final action on the source 

category delisting is not likely to be 

made in the near term. Therefore, the 

EPA does not believe it is appropriate to 

continue to retain the stay. In addition, 

the Agency has evaluated its authority 

for the stay in light of recent caselaw 

concerning stays issued under the 

authority of the CAA and the 

Administrative Procedure Act (APA), 

and has been unable to identify any 

authority for the stay in either statute. 

In light of the issues concerning the 

legality of the 2004 stay and the 

uncertainty concerning the timing and 

outcome of the EPA’s final decision on 


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Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 13185 

the delisting petition, the EPA is taking 

final action now to remove the stay of 

the standards for new lean premix and 

diffusion flame gas-fired turbines. 

III. Public Comments and Responses 

This section presents a summary of 

the public comments received on the 

proposal to lift the stay of the standards 

for new lean premix and diffusion flame 

gas-fired turbines. The EPA received 21 

public comments on the proposal to the 

lift the stay. All comments are contained 

in the docket for this action. The 

summary of comments on other 

elements of the 2019 proposal and the 

EPA’s responses can be found in the 

docket at Document ID No. EPA–HQ– 

OAR–2017–0688–0139. 

Comment: Some commenters 

supported the EPA’s proposal to lift the 

stay for lean premix and diffusion flame 

gas-fired turbines, agreeing with the 

EPA’s rationale for proposing to lift the 

stay and questioning the EPA’s 

authority to continue the stay. 

Response: The EPA acknowledges the 

comments supporting the removal of the 

stay. The EPA is removing the stay in 

this final action and thus no response is 

required for these comments. 

Comment: Several commenters stated 

that the EPA is under no obligation to 

lift the stay as part of the RTR 

rulemaking. One commenter stated that, 

based on the EPA’s original rationale for 

the stay as well as practical and 

technological considerations, the EPA 

should not take any action that would 

make emission limitations effective 

upon the date of a final rule addressing 

other affected units and the RTR 

provisions of the proposal. Commenters 

further cited the findings of the EPA’s 

and the delisting petitioners’ risk 

analyses to support addressing the stay 

in a separate rulemaking. Commenters 

noted that there is no court-ordered 

deadline to lift the stay, and they further 

noted there is no statutory provision 

mandating that every issue related to a 

source category be resolved at the same 

time as an RTR rulemaking. 

Commenters stated that it is within the 

EPA’s discretion to address 

environmental agendas piece by piece 

in separate rulemakings, particularly if 

the pieces can be implemented 

independently from one another. The 

commenters stated that lifting the stay is 

not necessary for the EPA to finalize the 

proposed revisions resulting from the 

RTR and the SSM exemption removal. 

The commenters noted that the EPA has 

previously severed portions of proposed 

rulemakings that require further 

deliberation and analysis into separate 

final actions; one commenter cited the 

state implementation plans (SIP) for 

Delaware and New Mexico as examples. 

Response: The EPA did not finalize 

the proposal to lift the stay or take 

action to make the stayed standards 

effective when the final RTR was 

promulgated on March 9, 2020 (85 FR 

13524). The EPA indicated in the 

Federal Register document for the final 

RTR that the Agency was not finalizing 

the proposed removal of the stay to 

allow for additional time to review the 

public comments on the proposed 

removal of the stay, and to review a new 

petition to delist the Stationary 

Combustion Turbines source category. 

Thus, comments urging the EPA not to 

remove the stay in conjunction with the 

RTR are moot. 

Comment: One commenter stated that, 

based on a review of the documents in 

the public record associated with this 

proposal, it appears that the EPA may 

have intended to solely address the 

results of the RTR and not to propose to 

alter the status of the existing stay, but 

it is not clear. Commenters noted that 

the EPA proposed to amend 40 CFR 

63.6095(d) by deleting the language 

about the stay for natural gas-fired 

turbines, and the preamble stated that 

the EPA was proposing to remove the 

stay of the effectiveness of the standards 

for new lean premix and diffusion flame 

gas-fired turbines. However, the 

commenter asserted that the supporting 

statement indicated that the EPA 

assumed that the proposed lifting of the 

stay will be finalized by Year 2 and did 

not include Year 1 notification, testing, 

monitoring, recordkeeping, and 

reporting costs for units that would be 

impacted by the lifting of the stay. In 

addition, the commenter noted that 

proposed 40 CFR 63.6110 referenced 

‘‘the date the stay . . . is removed from 

this subpart’’ rather than the date that 

the proposed rule is finalized. The 

commenter suggested that the EPA 

should clarify its intent regarding the 

status of the stay and stated that the stay 

should remain in effect and be 

addressed, if necessary, through 

separate rulemaking action. 

Response: The preamble to the 

proposed rule clearly indicated that the 

EPA was proposing to remove the stay. 

The proposed amendments to the 

regulatory text also clearly removed the 

stay provision from the rule. The 

proposed amendments to 40 CFR 

60.4110 were written in the manner 

noted by commenter in the event that 

the removal of the stay was finalized on 

a different timeline than the other 

proposed amendments. The supporting 

statement for the original 2004 rule 

accounted for the notification, testing, 

monitoring, recordkeeping, and 

reporting costs and thus such costs were 

not counted again in the 2019 proposed 

rule. 

Comment: Other commenters raised 

cost and risk issues in arguing that the 

EPA should not finalize the proposal to 

lift the stay for lean premix and 

diffusion flame gas-fired turbines. One 

commenter asserted that the EPA has 

discretion to continue the stay to 

address broader statutory purposes. One 

commenter suggested that, in light of 

the fact that the EPA has proposed not 

to increase the stringency of the rule for 

the entire source category, the EPA may 

consider acting to avoid the imposition 

of standards with which it may be 

technically or practically impossible to 

comply either immediately or within 

180 days. 

Two commenters stated that lifting 

the stay would cause significant control 

installation, testing, and compliance 

costs for hundreds of estimated affected 

turbines. One commenter asserted that 

these costs are unwarranted based on 

the conclusions the EPA reached as part 

of its residual risk review, and another 

commenter agreed that the low risk 

results suggest that lifting the stay is not 

necessary. Similarly, a commenter 

stated that the annual performance 

testing requirement would impose large 

testing costs on a subcategory that was 

initially considered by the EPA to 

warrant potential delisting and that the 

costs would be passed on to their 

customers. A commenter also suggested 

that the EPA should assess whether 

these standards are necessary, given the 

fact that the RTR determined that 

stationary combustion turbines are not 

adversely impacting public health or the 

environment. 

Similarly, one commenter stated that 

the stay was granted on the basis of the 

EPA’s worst-case exposure scenario, so 

owners/operators of these turbines 

could reasonably assume that new or 

reconstructed lean premix gas-fired 

turbines were highly unlikely to present 

a health risk even if their formaldehyde 

emissions were above 91 ppbvd. The 

commenter noted that no new 

information has been introduced in the 

15 years since the stay was issued to 

undercut this health-risk assessment. 

The commenter acknowledged that 

lifting the stay is necessary because the 

EPA cannot delist subcategories, but 

that does not invalidate the health-risk 

assessment on which the decision to 

grant the stay was based. The stay has 

been in place for 15 years, 12 of those 

since the court decision invalidating 

delisting of subcategories. The 

commenter suggested that in light of the 

low risk and the fact that the EPA is not 

proposing more stringent emission 


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13186 Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 

limits as a result of the technology 

review, the EPA should consider setting 

different standards that do not require 

immediate compliance. 

One commenter also expressed 

concern about the cost associated with 

lifting the stay. According to the 

commenter, the EPA underestimated the 

cost to comply with the rule for the first 

year after the final rule. The commenter 

cited a vendor quote of greater than $2 

million to design and install oxidation 

catalyst control technology for a single 

simple cycle turbine and depending on 

the number of turbines that would need 

to install controls, the cost could be 

several hundreds of millions, if not 

billions, of dollars. According to the 

commenter, the cost could have a real 

effect on rates paid by electric 

consumers, given that simple cycle 

turbines are generally dispatched only 

at peak hours or to relieve a constraint 

and thus are often called on during out 

of order dispatch conditions. The 

commenter stated that adding the 

oxidation catalyst costs to the turbine’s 

overall costs mix will likely increase the 

price at which these units bid into the 

market, and under economic dispatch, 

these higher prices could set the market 

price in peak or constraint conditions 

and potentially impact grid reliability. 

Response: With respect to comments 

regarding the costs that would be 

incurred to comply with the stayed 

standards and the commenters’ 

assertion that such costs are not justified 

because emissions from the sources are 

low risk, the EPA did not propose to 

change or solicit comment on the 

emission standards or testing 

requirements, or the costs of the original 

2004 rule; therefore, comments on those 

aspects of the rule are outside the scope 

of the proposal. Further, the EPA notes 

that the standards that were stayed were 

established pursuant to CAA section 

112(d)(2) and (3). Standards set under 

these provisions of CAA section 112 

must reflect the maximum degree of 

reduction in emissions of HAP that is 

achievable. This level of control is 

commonly referred to as the maximum 

achievable control technology (MACT). 

CAA section 112(d)(3) also establishes a 

minimum control level for MACT 

standards, known as the MACT ‘‘floor.’’ 

The MACT floor is the minimum 

control level allowed for NESHAP and 

is defined under section 112(d)(3) of the 

CAA. For new sources, the MACT 

standards cannot be less stringent than 

the emission control that is achieved in 

practice by the best controlled similar 

source. The standards that are stayed are 

MACT floor standards and the EPA 

cannot establish a standard that is less 

stringent than the MACT floor based on 

cost or risk. Further, as is explained in 

more detail below, even assuming for 

the sake of argument that commenters 

are correct that the EPA has discretion 

to continue the stay or has no legal 

obligation to remove the stay, the EPA’s 

view is that it is appropriate to lift the 

stay at this time despite a pending 

petition to delist the entire source 

category and in light of issues 

concerning EPA authority for issuance 

of the stay in 2004. 

Comment: Numerous commenters 

stated that the EPA should postpone 

lifting the stay for new lean premix and 

diffusion flame gas-fired turbines until a 

decision is made on the forthcoming 

petition to delist the entire source 

category under CAA section 112(c)(9). 

Commenters stated that the petitioners 

are submitting new information that 

suggests the maximum lifetime 

individual cancer risk for this source 

category is less than 1-in-1 million and 

that the HQ is less than 1. Commenters 

contend that these results show that the 

risk from this source category meets the 

thresholds for delisting. A commenter 

noted that it appears that the EPA 

intended to propose a separate rule to 

remove the stay at a later date and stated 

that leaving the existing stay in place 

pending an evaluation of the new study 

and a response to any associated 

delisting petition is reasonable and 

appropriate. 

One commenter noted that the EPA’s 

rationale for the stay was that it would 

be ‘‘inappropriate and contrary to 

statutory intent’’ to require sources to 

incur costs for installation and testing of 

controls until a decision was made on 

whether the sources should be delisted 

(69 FR 51185; August 18, 2004). At the 

time the EPA adopted the stay, the 

commenter noted that the EPA likely 

believed it would take final action on 

the initial delisting petition within a 

short time, suggesting that the EPA’s 

concern was based on wasteful costs 

being imposed on a relatively small 

number of turbines. The commenter 

asserted that the rationale for the 

original stay applies now as well, given 

the new petition, and because the stay 

has been in place for 15 years, the costs 

associated with lifting it would be 

significantly higher than the costs that 

were avoided by the issuance of the 

stay. Similarly, two commenters stated 

that it would be inappropriate to lift the 

stay now and require sources to take 

steps and incur significant costs to 

comply with standards that may only 

apply for a short period of time and may 

be eliminated once the petition is 

evaluated. 

Response: As explained in the 

proposed and final RTR rule, in 2004, 

the EPA put into place a stay of the 

effectiveness of the NESHAP for new 

lean premix gas-fired and diffusion 

flame gas-fired turbines, pending the 

outcome of a 2004 proposed delisting. 

The EPA stated that it would lift the 

stay if the subcategories were not 

ultimately delisted, and turbines 

constructed or reconstructed after 

January 14, 2003, would then be subject 

to the final standards. As explained 

above, the proposal to delist the four 

subcategories was never finalized in 

light of the 2007 decision in NRDC v. 

EPA which addressed limits on the 

EPA’s ability to delist subcategories. 

Commenters contend that the EPA 

should postpone lifting the stay for new 

lean premix and diffusion flame gasfired turbines until a decision is made 

on the petition to delist the entire 

source category. The petition to delist 

that commenters refer to was submitted 

to the Agency on August 28, 2019, with 

supplemental information provided as 

recently as March 2021. As discussed 

previously in section II of this preamble, 

final action on the source category 

delisting is not likely to be made in the 

near term. Although the EPA 

determined that a stay was appropriate 

in 2004 to avoid unwarranted 

expenditures on installation of emission 

controls which would not be required if 

the subcategories were delisted, and in 

the 2020 final RTR, the Agency 

determined that it would be reasonable 

to delay taking final action on the 

proposal to lift the stay for the same 

reasons in light of the new petition to 

delist the turbine category, the EPA has 

since re-evaluated its authority for the 

stay in light of recent caselaw 

concerning CAA and APA stays and has 

been unable to identify any authority for 

the stay in either the CAA or APA. 

Further, the commenters did not 

identify any such authority. In light of 

the issues concerning the legality of the 

2004 stay and the uncertainty 

concerning the timing and outcome of 

the EPA’s final decision on the delisting 

petition explained above, the EPA is 

taking final action now to lift the stay. 

In making this determination, the EPA 

recognizes the potential costs to 

industry that may be associated with the 

installation of controls but has 

determined that the concerns associated 

with allowing that stay to remain in 

place outweigh these considerations. 

The EPA does not believe that it would 

be appropriate to continue to allow the 

estimated approximately 250 new gasfired stationary combustion turbines 

that have been installed at major sources 

of HAP since 2003 to operate without 

emission standards that are required 


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2CARB Method 430 is a test method used to 

measure emissions of formaldehyde and 

acetaldehyde from stationary sources. https://

www.arb.ca.gov/testmeth/vol3/m_430.pdf. 

under the CAA. Moreover, risk and cost 

considerations are not relevant to the 

issue of the EPA’s authority for the stay. 

Further, the EPA notes that owners and 

operators of the turbines have been on 

notice that the stay might be removed 

from the rule since at least April 2019 

when the Agency proposed to remove 

the stay. In addition, as explained 

above, the 2004 final stay document 

explained that the EPA would lift the 

stay if the subcategories were not 

ultimately delisted, and that turbines 

constructed or reconstructed after 

January 14, 2003, would then be subject 

to the final standards. The 2007 court 

decision in NRDC made clear that the 

EPA could not move forward with the 

2004 delisting proposal and that 

decision put turbine owners and 

operators on notice that the stay was at 

risk. 

Comment: Several commenters stated 

that when the EPA established the 91 

parts per billion by volume, dry basis 

(ppbvd) formaldehyde emission limit in 

2004, it acknowledged that the standard 

was based on limited data and might 

require revision. The commenters stated 

that the stay of the standards should 

remain in place until the EPA completes 

that review and determines whether the 

standard should be revised. 

Two commenters noted that at the 

time the emission limit was established, 

the EPA stated in the preamble to the 

final rule that ‘‘[i]f actual emission data 

demonstrate that we are incorrect, and 

that sources which properly install and 

operate an oxidation catalyst cannot 

consistently achieve compliance, we 

will revise the standard accordingly’’ 

(69 FR 10512; March 5, 2004). One 

commenter stated that at that time, 

California Air Resources Board (CARB) 

Method 430 2 could only detect 

formaldehyde down to 200–300 ppbvd; 

but, even today, only the most recent 

technologies can measure formaldehyde 

below 100 ppbvd (and the commenter 

cited an EPRI document describing the 

accuracy of those technologies as 

‘‘uncertain’’). The commenter stated that 

sources will need to perform baseline 

testing to determine whether they can 

comply with a 91 ppbvd emission limit, 

and without that test data, the 

commenter asserted that the EPA does 

not have the data to determine whether 

the standard is achievable. The 

commenter stated that the EPA should 

delay lifting the stay to allow sufficient 

time for companies that already have 

installed oxidation catalysts to complete 

their testing with the more accurate 

methodologies now available. If 

compliance with the limit is an issue, 

the commenter suggested that the EPA 

should revisit the standard, as 

anticipated in the 2004 rule. Similarly, 

a commenter requested that the EPA 

revisit its determination of the standard 

to ensure 91 ppbvd is achievable in light 

of the operating records that may now 

be available. 

Two commenters provided more 

specific suggestions for changing the 

format of the standard. One commenter 

suggested that the EPA include the 

subcategory of new lean premix and 

diffusion flame gas fired turbines in the 

list of ‘‘subcategories with limited 

requirements’’ under 40 CFR 63.6090(b). 

The commenter stated that because risks 

from this subcategory were low enough 

to consider delisting, imposing any 

limits on this subcategory is 

unnecessary and would result in 

wasteful and unwarranted expenditure, 

and these units should only be subject 

to initial notification. If the EPA 

determines that a standard is necessary, 

the other commenter suggested that the 

EPA consider either an equipment 

standard or a work practice standard, 

pursuant to CAA section 112(h). The 

commenters stated that limitations in 

the formaldehyde measurement 

methods may mean that measurement is 

not practicable due to technological 

limitations, so the EPA should consider 

setting a standard under CAA section 

112(h)(2)(B). The commenter’s 

suggested equipment standard would 

require compliance to be demonstrated 

by documenting equipment 

performance, similar to the 

requirements to verify catalyst 

performance with periodic portable 

analyzer tests of CO in the Reciprocating 

Internal Combustion Engines (RICE) 

NESHAP (40 CFR part 63, subpart 

ZZZZ). The commenters suggested that 

an appropriate work practice standard 

might include demonstrating 

compliance for low emitting natural gasfired units by completing periodic 

burner tune-ups, analogous to the 

approach specified for natural gas-fired 

units in 40 CFR part 63, subpart DDDDD 

(Boiler NESHAP). 

Response: The EPA did not propose to 

change or solicit comment on the 

emission standards and therefore 

comments on those aspects of the rule 

are outside the scope of the proposal. 

The EPA notes, however, that it did not 

finalize the April 12, 2019 proposal to 

lift the stay when it promulgated the 

final RTR on March 9, 2020, and so the 

delay that commenters requested has 

occurred and sources have had nearly 3 

years to conduct and provide to the EPA 

any baseline testing to determine if 

there are compliance issues. Further, the 

formaldehyde emissions data obtained 

during the original Stationary 

Combustion Turbine NESHAP 

rulemaking—as well as during the 

recent RTR rulemaking—demonstrate 

that stationary combustion turbines are 

able to meet the 91 ppbvd formaldehyde 

emission standard. Moreover, these data 

demonstrate that the available test 

methods are able to accurately measure 

formaldehyde at levels below 91 ppbvd. 

See for example the data summarized in 

the memo ‘‘Review of the Acute 

Multiplier Used to Derive Hourly 

Emission Rates for the Stationary 

Combustion Turbines Risk Analysis’’ 

(Document ID No. EPA–HQ–OAR– 

2017–0688–0070). The commenters did 

not provide any information to show 

that the limit of 91 ppbvd was 

unachievable. 

With respect to the suggestion that the 

EPA impose only initial notification 

requirements on new lean premix and 

diffusion flame gas fired turbines 

because risks from these subcategories 

are low, as noted above, it would not be 

appropriate to eliminate MACT floor 

emision limits based on risk. 

Regarding the comments that the EPA 

should consider a work practice or 

equipment standard under CAA section 

112(h), commenters did not provide any 

information to suggest that the criteria 

for establishment of a work practice 

standard apply (e.g., that the pollutant 

cannot be emitted through a conveyance 

designed and constructed to emit or 

capture such pollutant or the 

application of measurement 

methodology to a particular class of 

sources is not practicable due to 

technological and economic 

limitations). In fact, as noted above, 

emissions data show that emissions at 

or below the standard can be measured. 

Therefore, there does not appear to be 

a justification for a work practice or 

equipment standard. 

Comment: Many commenters stated 

that if the EPA does finalize lifting the 

stay, 180 days is not long enough for 

owners and operators to conduct all the 

activities that will be needed for their 

turbines to come into compliance with 

the standards. For various reasons, most 

of the commenters suggested that 3 

years, consistent with the period of time 

allowed in the CAA for existing sources 

to comply with NESHAP, would be 

appropriate. One commenter noted that 

this compliance date should apply for 

turbines that commenced construction 

or reconstruction after January 14, 2003, 

but before April 12, 2019 (the proposal 

date of the amendment to lift the stay). 

Commenters also stated that the EPA 


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should make clear that facilities would 

have the option to petition for another 

year to meet the standards if installation 

of controls is required, per the CAA. 

Other compliance deadlines that were 

suggested included from 18 months up 

to 25 months after the effective date of 

the removal of the stay. 

Commenters stated that the EPA has 

provided for extensions of compliance 

deadlines in prior rulemakings. 

Commenters stated that, as an example, 

the EPA promulgated an interim final 

rule in 2014 to extend all Cross-State 

Air Pollution Rule (CSAPR) compliance 

deadlines by 3 years to ‘‘provide parties 

with sufficient time to prepare for 

implementation, and avoid unnecessary 

regulatory burden’’ (79 FR 71666; 

December 3, 2014) after the judicial stay 

of the CSAPR was lifted by the D.C. 

Circuit. A commenter provided the 

additional example of the EPA’s final 

rule requiring multiple states and the 

District of Columbia to submit SIPs to 

address the regional transport of 

ground-level ozone (commonly known 

as the ‘‘NOX SIP Call’’) in 1998, for 

which it extended the proposed 

compliance deadline by 8 months, 

recognizing the utility sector’s concern 

that there were not enough trained 

workers, engineering services, or 

materials and equipment to install the 

NOX control technology by the initially 

proposed deadline (63 FR 57356; 

October 27, 1998). 

One commenter stated that when the 

stay was originally issued, the EPA 

recognized that many facilities would 

need to install controls (e.g., oxidation 

catalyst) to meet the emission limit. In 

issuing the final stay, commenters noted 

that the EPA indicated that if the 

subcategories were not delisted, the stay 

would be lifted, and all sources in the 

stayed subcategories would then be 

subject to the final standards. 

Commenters further referenced the 

EPA’s statement that ‘‘[t]he sources will 

then be given the same time to make the 

requisite demonstration of compliance 

they would have had if there had been 

no stay’’ (69 FR 51185; August 18, 

2004). A commenter stated that some 

companies expressed concern about the 

timing at that time, but due to the 

expectation that turbines would be 

delisted, facilities were not then harmed 

by the statement and therefore would 

have likely been unable to litigate the 

issue. 

One commenter further noted that it 

is unlikely that any party could file a 

petition for review of the existing stay 

now, given that the EPA promulgated 

the stay in 2004 and is not under any 

court order to lift the stay at this time. 

Commenters asserted that the 2004 

language regarding the timing of 

compliance after the potential lifting of 

the stay is reasonably interpreted to 

provide for adequate time to install the 

controls, especially given that the EPA 

indicated that one of the main reasons 

for staying the rule was to avoid capital 

expenditures that ultimately would not 

be required if the delisting was 

completed. Thus, the commenters 

asserted that sources legitimately relied 

on these statements and reasonably 

expected that the EPA would not lift the 

stay in a manner that would deprive 

them of the needed time to install 

controls that the EPA intended to be 

deferred by issuing the stay. As a result, 

commenters stated that during the time 

the stay has been in place, many 

turbines have been constructed without 

oxidation catalysts. A commenter noted 

that by the EPA’s own estimates, the 

number of such turbines is almost 200. 

The commenters asserted that these 

units have been effectively operating as 

‘‘existing’’ units under the CAA. 

According to the commenters, now 

that the EPA has proposed to lift the 

stay, owners and operators are 

beginning to develop performance test 

plans to determine the existing 

formaldehyde concentration from the 

turbine exhaust stack during different 

operating conditions. Commenters 

stated that sufficient time would be 

needed for owners and operators to find 

available testing contractors to perform 

baseline performance testing for all the 

affected units. One commenter 

estimated that this step would take 6 

months, and another commenter 

estimated 1 to 3 months. Several 

commenters stated that there is limited 

availability of testing contractors that 

can perform the necessary Fouriertransform infrared (FTIR) spectroscopy 

testing; one commenter stated that it 

appears fewer than five vendors in the 

country can provide testing with 

detection levels below 91 ppbvd. 

Therefore, some commenters stated that 

performance testing could take up to 1 

year, and other commenters stated it 

would likely take longer than the 180 

days provided in the proposal. In 

addition, one commenter noted that the 

General Provisions of 40 CFR part 63 

require a 60-day notice to the EPA 

before a performance test that must be 

taken into account when scheduling the 

testing. One commenter noted that 

performance testing could be conducted 

using an alternative method, but owners 

and operators could not use the results 

as the test to demonstrate initial 

compliance without the EPA’s approval 

prior to the test. 

Several commenters also stated that 

even if compliance can be achieved 

without an oxidation catalyst, the owner 

or operator must either determine the 

appropriate operating parameter(s) for 

compliance monitoring and petition the 

Administrator for approval of sitespecific operating limitations or petition 

the Administrator for approval of no 

additional operation limitations. The 

commenters asserted that developing 

the information to support a petition, 

submitting the petition, receiving 

approval for the petition, and 

scheduling and conducting the initial 

performance test cannot be 

accomplished within 180 days. Two 

commenters stated that this petition 

process has been used rarely, if ever, so 

the EPA’s ability and resources to 

respond to these petitions is largely 

untested. A commenter further stated 

that, even if petitions are submitted for 

a relatively small portion of the affected 

sources, the number of applications that 

the EPA is likely to receive could 

overwhelm the Agency’s ability to 

provide timely responses (i.e., within 60 

days). A commenter stated that the EPA 

has not committed to a definitive 

review/comment/approval process 

timeframe from which an affected 

source could estimate the necessary 

amount of time to complete compliance 

demonstration requirements. Another 

commenter agreed and specifically 

requested that the EPA support 

delegated agencies in undertaking 

timely review of test plans and report 

reviews. A commenter also stated that 

some sources that do not need an 

oxidation catalyst still may need to 

make process adjustments and even 

conduct extensive maintenance 

activities, such as replacing combustor 

components, which can only be 

performed during scheduled outages. 

Many commenters noted that for 

turbines that cannot meet the 

formaldehyde standard without 

oxidation catalysts, capital projects will 

be needed. According to the 

commenters, significant capital projects 

at complex plants, especially retrofit 

projects, usually entail a multi-year 

effort and often face spatial limitation 

challenges. Commenters stated that 3 

years to design and install controls is 

typical. Commenters estimated 

installing oxidation catalyst would take 

a minimum of 2 years, but one 

commenter clarified that estimate 

assumes no delays. A commenter stated 

that preliminary engineering 

assessments suggest that even where 

adequate load capacity is available at a 

co-generation unit, 3 to 4 years is still 

aggressive for engineering, procurement, 

and installation. Another commenter 

agreed, noting that the company has a 


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significant number of affected units that 

will likely need substantial 

infrastructure improvements and 

specific concerns related to turbines that 

are used to drive compressors integral to 

the refrigeration process to liquefy 

natural gas, so it is difficult to determine 

whether 3 years for compliance would 

be enough. Commenters stated that in 

addition to a facility’s individual 

concerns, the more turbines that need 

oxidation catalysts, the more time 

providers of emissions controls, 

parameter monitoring, and related 

support services will need to meet the 

demands. Commenters also noted that 

additional design and installation time 

could be needed for simple cycle units; 

construction of a new structure would 

be required to hold the catalyst and a 

long outage would be needed for 

installation due to high exhaust 

temperatures. 

Commenters noted that necessary 

capital projects would include the 

following activities (in addition to 

initial performance testing) and 

estimated the amount of time to 

complete selected activities: 

• Engineer and design a system to 

add an oxidation catalyst to reduce CO 

emissions to meet the formaldehyde 

standard. One commenter estimated that 

this step would take 1 year. Another 

commenter estimated that design would 

take 6 months and engineering would be 

12 months. A commenter estimated that 

2 to 5 months would be needed just to 

evaluate whether structural changes are 

needed to the turbine ductwork to 

install the catalyst. Two commenters 

stated that at least 1 year is needed to 

plan and install oxidation catalysts. 

• Develop a procurement 

specification for vendors to add an 

oxidation catalyst, review bids, and 

select the vendor. One commenter 

estimated that these activities would 

take 3 to 7 months and other 

commenters estimated 6 months. 

• Procure the CO oxidation catalyst 

and any additional associated 

equipment. A commenter estimated that 

this step would take 6 months, provided 

there is enough CO oxidation catalyst 

available based on demand. Another 

commenter estimated that 2 to 7 months 

would be necessary but noted that more 

than 2 months will likely be needed if 

there are competing orders. One 

commenter stated that engineering, 

procurement, flow modeling, 

installation, and any necessary 

modifications to existing equipment 

(e.g., ductwork modifications) and 

software would require at least 9 

months and more likely 1 year to 

complete. 

• Shut down the combustion turbine, 

install the oxidation catalyst controls, 

and then start up the system with new 

oxidation catalyst. Some commenters 

estimated that this step would take 6 

months and another commenter 

estimated 1 to 5 months. 

• Implement all procedures and 

systems for parameter monitoring, 

recordkeeping, and reporting; conduct 

performance testing for initial 

compliance; and account for any 

additional time for contingencies for the 

previous steps. One commenter 

estimated that this step would take 6 

months. Another commenter estimated 

that performance testing would take 1 

month. One commenter estimated 3 

months to start up and test the new 

equipment. A commenter stated that the 

amount of time needed to schedule and 

conduct performance testing would be 

similar to the time needed for initial 

testing. 

• Ensure that necessary changes are 

made to the air permit. One commenter 

stated that for new construction or 

retrofits, permit amendments would be 

required prior to construction activities 

and the permit approval time would be 

longer than 180 days. One commenter 

stated that it may take 6 months or more 

to modify a major source permit. 

Another commenter noted that for 

simpler permit amendments, such as 

changing catalyst specifications, if the 

application is submitted at the time the 

catalyst design is determined and 

approval is granted within 45 days, this 

step could be concurrent with other 

activities and would not necessarily add 

time to the schedule. A commenter also 

noted that it is possible that addition of 

a catalyst for formaldehyde control 

could increase criteria pollutants and 

require permit action under New Source 

Review. 

Commenters also noted that public 

power utilities are entities of state and 

local government and often must work 

through their governing boards and or 

city councils to gain funding and 

approval for capital projects. One 

commenter stated that this approval 

process may require obtaining financing 

or issuing debt/bonds to pay for the 

projects and coordinating with 

contractors, labor unions, and crane 

operators, along with any permits 

required. The timeframe to secure 

financing would be in addition to 

contracting, engineering, equipment 

installation and testing schedules. The 

commenter noted that this process 

would likely take about 6 to 8 months 

for an oxidation catalyst project. 

Similarly, a commenter stated that 

military installations with affected 

turbines would need to secure 

appropriations and enter into the 

contracting process to meet the 

requirements. A commenter noted that 

facility budgets are set annually and are 

integrated into a company’s long-range 

planning. The commenter noted that 

retrofit projects of this magnitude and 

affecting multiple facilities would 

require adjustments and approvals at 

many levels that may take many 

months. Another commenter agreed that 

the significant capital expense for a 

catalyst would require time to plan and 

receive approvals. 

Two commenters cited particular 

concerns regarding combustion turbines 

that are designed for both power and 

steam generation (combined heat and 

power (CHP) or co- generation units), 

noting that they are often highly 

integrated with other operations. 

Control device design, construction, and 

operation must carefully consider site 

power needs, coordination with the 

power grid external to the site, and site 

steam balances. Two other commenters 

agreed and stated that industrial 

facilities that have installed stationary 

combustion turbines cannot meet the 

site’s full steam and electrical load 

using boilers and purchased electricity. 

A facility’s main transformers and 

switch gear may not have the capability 

of running the entire facility at peak 

load with the site’s turbines offline, 

even if temporary steam boilers could be 

rented, so facilities typically schedule 

their turbine outages to coincide with 

facility outages, when steam and 

electrical load drop. A commenter noted 

that the other alternative is to begin load 

shaving, which carries with it the 

potential for process unit upsets and 

unplanned shutdowns. Commenters 

stated that for facilities that rely on 

stationary gas turbines to provide steam 

and electricity for multiple pieces of 

equipment, extensive utility load 

studies would be needed to determine 

the probability of running near the edge 

of compliance and to plan any turbine 

shutdown that does not coincide with a 

major facility turnaround (e.g., whether 

some equipment can be run without a 

turbine online). A commenter also 

stated that for the Electrical Reliability 

Council of Texas region there is 

sensitivity regarding even minor 

generator maintenance during higher 

electrical demand months. 

To address these concerns, one 

commenter noted that turbine downtime 

to install controls would need to be 

performed during the next scheduled 

facility outage, which typically occurs at 

a 2-year (or longer) frequency. A 

commenter suggested that the EPA 

provide a compliance deadline of the 

first scheduled turnaround following 3 


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years after promulgation for CHP 

sources. Since facility turnarounds can 

involve a wide range of extensive site 

maintenance activities (e.g., planned 

equipment replacement, cleaning, and 

inspection, among others), the 

commenter stated that it would be 

reasonable to coordinate this 

turnaround time with the downtime 

necessary to install and implement the 

design and modification changes, which 

would minimize the amount of facility 

time spent offline, ensure steadier 

production rates across the site, and 

maximize overall efficiency. Another 

commenter agreed that additional 

compliance time may be required to 

integrate unit down times into facility 

steam and electrical grid demand timing 

constraints. A commenter stated that 

maintenance planning schedules are 

developed multiple years in advance in 

order to efficiently coordinate downtime 

for maintenance and new project 

construction, and changes to these 

schedules cannot be implemented until 

engineering is complete and control 

equipment availability is known. 

Commenters also cited particular 

concerns with retrofitting turbines that 

have existing SCRs with oxidation 

catalysts to meet the standard. One 

commenter noted that some turbine 

manufacturers have indicated that 

further testing will be required before 

they know whether a retrofitted SCR 

would be sufficient to attain compliance 

with the formaldehyde standard. A 

commenter expressed concern that 

installation of an oxidation catalyst 

could negatively impact SCR 

performance. The commenter noted that 

the installation would cause changes in 

temperature and pressure flow and 

could necessitate increased ammonia 

usage, all of which could stress the SCR 

and degrade performance over time. A 

commenter stated that one member 

company expects to need to remove and 

re-engineer their SCR to accommodate 

oxidation catalysts. The commenter 

stated that this will require design and 

engineering time, permitting time, 

procurement time, construction of the 

controls, removal of the current SCRs, 

fabrication of combined system, and 

reinstallation, and the installation 

timing will need to be integrated with 

facility turnaround plans. Commenters 

stated that turbines with existing SCRs 

may need to use dual-function or dualpurpose catalysts, which are not ‘‘offthe-shelf’’ catalysts. A commenter stated 

that there is no significant increase in 

manufacturing time for dual-purpose 

catalysts, but there are currently only 

two suppliers of dual- purpose catalysts, 

so owners and operators may need to 

account for additional time due to high 

demand. 

Without sufficient time to comply, 

one commenter stated that many 

facilities could be out of compliance 

before controls can be installed. In 

addition, the commenter noted that if 

the units are shut down to avoid noncompliance, alternative sources of 

power would be tapped to fill in any 

void. The commenter stated that the 

impact would likely be less efficient 

facility operation (i.e., increased 

greenhouse gas and other emissions), 

reduced reliability of area power grids, 

and a net increase in emissions 

compared to running efficient turbine 

systems. Alternatively, the commenter 

stated that companies will likely need to 

either seek compliance schedules or 

consent agreements or use other legal 

mechanisms in order to keep operating. 

Response: In the original 2004 

rulemaking establishing the stay, the 

EPA clearly indicated that the stay was 

only being established due to the 

proposed delisting of certain 

subcategories of stationary combustion 

turbines, and that the stay would be 

lifted if the subcategories were not 

ultimately delisted. (69 FR 51185; 

August 18, 2004). As discussed 

previously, the proposal to delist the 

four subcategories was never finalized 

in light of the 2007 decision in NRDC 

v. EPA, 489 F.3d 1364 (D.C. Cir. 2007), 

which addressed limits on the EPA’s 

ability to delist subcategories. Therefore, 

the EPA is taking action to remove the 

stay that was put in place while the 

proposed delisting of subcategories was 

evaluated. Turbine owners and 

operators have known since the 2007 

decision that the basis for the stay was 

in question. 

Moreover, the EPA indicated in the 

2004 rulemaking establishing the stay 

that ‘‘if the subcategories are not 

ultimately delisted, the stay will be 

lifted, and all sources in the 

subcategories constructed or 

reconstructed after January 14, 2003 will 

then be subject to the final standards.’’ 

The EPA also said that sources would be 

given the same time to demonstrate 

initial compliance with the emission 

standards if the stay was lifted as they 

would have had if there had been no 

stay. (69 FR 18341; April 7, 2004). As 

stated in 40 CFR 63.6110(a), owners and 

operators have 180 calendar days for the 

initial compliance demonstration. The 

EPA also indicated in the 2019 proposal 

to remove the stay that owners and 

operators of turbines that were subject 

to the stay of the standards for new gasfired turbines would be required to 

comply with all applicable regulatory 

requirements immediately upon a final 

action to remove the stay and would 

have 180 days from the date the stay is 

removed for the initial compliance 

demonstration (84 FR 15068; April 12, 

2019). Therefore, owners and operators 

have had notice of the requirements that 

would apply immediately if and when 

the stay was lifted and there was no 

basis for commenter to interpret the 

EPA’s statements concerning initial 

compliance demonstration as suggesting 

otherwise. 

Regarding the comments that the EPA 

has provided for extensions of 

compliance deadlines in CSAPR and the 

NOX SIP Call, the EPA notes that in the 

EPA rules cited by the commenter, the 

EPA merely codified legally enforceable 

modifications to deadlines that were 

imposed by a court. There is no such 

court action that modifies the 

compliance deadlines that will be 

triggered when the stay is lifted. The 

commenters did not identify any 

authorities which would allow the EPA 

to extend or suspend the compliance 

deadlines for new sources (any source 

that was constructed or reconstructed 

after the 2003 NESHAP proposal) 

established under the CAA and the Part 

63 regulations once the stay is lifted. 

Comment: One commenter stated that 

if the EPA finalizes lifting the stay 

without providing additional time to 

comply with the rule, the EPA should 

provide for an administrative 

noncompliance procedure for owners/ 

operators of turbines affected by the 

2004 stay of the rule. The commenter 

noted that the EPA provided an 

administrative noncompliance process 

for certain electric steam generating 

utility units that were unable to comply 

timely with the Mercury and Air Toxics 

Standards (MATS) and asserted that the 

EPA should provide a similar procedure 

for stationary combustion turbines that 

are newly subject to subpart YYYY’s 

numeric emission limitations. The 

commenter stated that although many 

more turbines might be affected than 

boilers that required additional time to 

meet the MATS, far lower emissions 

would be likely. 

The commenter’s suggested procedure 

would allow owners and operators of 

turbines that cannot comply 

immediately with subpart YYYY to 

provide notice to the Agency of their 

noncompliance without penalty. The 

commenter then suggested that 

thereafter, those affected operators 

would be given the opportunity to enter 

into a compliance schedule with 

enforceable milestones to meet the 

standard. The commenter stated that 

affected units should be required to 

notify their respective state and EPA 

regional authorities within a short 


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Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 13191 

3The Environmental Protection Agency’s 

Enforcement Response Policy for Use of Clean Air 

Act Section 113(a) Administrative Orders In 

Relation To Electric Reliability And The Mercury 

and Air Toxics Standard. https://www.epa.gov/ 

sites/production/files/documents/mats-erp.pdf. 

4Economic Impact Analysis of the Final 

Stationary Combustion Turbines NESHAP: Final 

Report. EPA–452/R–03–014. August 2003. 

Document ID No. EPA–HQ–OAR–2002–0060–0636. 

period of time (e.g., 14 days after 

promulgation by providing the affected 

plant’s name and address, the name of 

the responsible officer, and the date of 

installation of the affected turbine(s). 

The commenter also suggested that 

upon receipt of a complete notification, 

the unit should be eligible for a 

noncompliance period for a period of no 

longer than 3 years, provided that the 

owner/operator subsequently submits a 

compliance plan with specific 

milestones for achieving compliance 

including the emission testing of units 

newly subject to the numeric emission 

limits, and, for those units that cannot 

meet those emission limits, the design, 

purchase, and installation of pollution 

controls and parametric monitoring 

devices. 

The commenter also stated that it is 

likely that the EPA would need a 

separate rulemaking to add an 

administrative noncompliance 

procedure to subpart YYYY. However, 

the commenter noted that the EPA’s 

Office of Enforcement and Compliance 

Assurance could administer an 

administrative order on consent outside 

of the rulemaking process, similar to the 

procedure used by the Agency in the 

MATS. The commenter recommended 

that the procedure be implemented 

separately from this rulemaking, in part 

because each administrative order on 

consent would be based on a case-bycase review of facts and the EPA’s 

exercise of the Agency’s enforcement 

discretion. 

Response: The EPA stated in the 

memo setting forth the MATS 

Enforcement Response Policy 3 that the 

EPA generally does not speak publicly 

to the intended scope of its enforcement 

efforts but was doing so in the case of 

the MATS rule to provide confidence 

with respect to electric reliability. The 

commenters did not provide any 

information to show that such reliability 

considerations are also a factor for 

stationary combustion turbine facilities 

that will be impacted by the removal of 

the stay. The EPA also notes that only 

five Administrative Orders were issued 

in connection with the MATS Policy. 

The EPA does not agree that it is 

necessary to establish a special 

administrative noncompliance 

procedure for this action. For a source 

that fails to comply with the applicable 

requirements of subpart YYYY once the 

stay is lifted, the EPA will determine an 

appropriate response, if any, based on, 

among other things, the good faith 

efforts of the source to comply. 

IV. Impacts of the Final Rule 

The environmental, energy, 

environmental justice, and economic 

impacts of the Stationary Combustion 

Turbine NESHAP were addressed in the 

original 2004 final rule. See 69 FR 

10533–10534 (March 5, 2004). No 

additional impacts are expected as a 

result of this final rule. 

V. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at https://www.epa.gov/lawsregulations/laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

This action is not a significant 

regulatory action and was, therefore, not 

submitted to the Office of Management 

and Budget (OMB) for review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

PRA. OMB has previously approved the 

information collection activities 

contained in the existing regulations 

and has assigned OMB control number 

2060–0541. This action does not impose 

an information collection burden 

because the EPA is not making any 

changes to the information collection 

requirements. 

C. Regulatory Flexibility Act (RFA) 

I certify that this action will not have 

a significant economic impact on a 

substantial number of small entities 

under the RFA. In making this 

determination, the impact of concern is 

any significant adverse economic 

impact on small entities. An agency may 

certify that a rule will not have a 

significant economic impact on a 

substantial number of small entities if 

the rule relieves regulatory burden, has 

no net burden, or otherwise has a 

positive economic effect on the small 

entities subject to the rule. The March 

5, 2004, Stationary Combustion Turbine 

NESHAP final rule was certified as not 

having a significant economic impact on 

a substantial number of small entities. 

This final rule does not impose any 

additional burden on affected sources 

beyond the burden already addressed in 

the original 2004 rule.4 The EPA has, 

therefore, concluded that this action 

will have no net regulatory burden for 

all directly regulated small entities. 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain an 

unfunded mandate of $100 million or 

more 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. 

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. None of the stationary 

combustion turbines that have been 

identified as being affected by this 

action are owned or operated by tribal 

governments or located within tribal 

lands. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action is not 

subject to Executive Order 13045 

because it does not concern an 

environmental health risk or safety risk. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211, because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 


jspears on DSK121TN23PROD with RULES1
13192 Federal Register / Vol. 87, No. 46 / Wednesday, March 9, 2022 / Rules and Regulations 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

The EPA believes that this action does 

not have disproportionately high and 

adverse human health or environmental 

effects on minority populations, lowincome populations and/or indigenous 

peoples, as specified in Executive Order 

12898 (59 FR 7629; February 16, 1994). 

The EPA performed a demographic 

analysis of the Stationary Combustion 

Turbine source category for the RTR, 

which is an assessment of risks to 

individual demographic groups of the 

populations living within 5 kilometers 

(km) and within 50 km of the facilities. 

The documentation for the analysis can 

be found in the technical report, Risk 

and Technology Review—Analysis of 

Demographic Factors for Populations 

Living Near Stationary Combustion 

Turbines Source Category Operations 

(Document ID No. EPA–HQ–OAR– 

2017–0688–0071). In the analysis, the 

EPA evaluated the distribution of HAPrelated cancer and noncancer risks from 

Stationary Combustion Turbine source 

category emissions across different 

demographic groups within the 

populations living near facilities. The 

results of that analysis indicated that 

there is not a disproportionately high 

and adverse human health or 

environmental effects on minority 

populations, low-income populations, 

and/or indigenous peoples. This action 

will further reduce the risks from the 

source category emissions. 

K. Congressional Review Act (CRA) 

This action is subject to the CRA, and 

the EPA will submit a rule report to 

each House of the Congress and to the 

Comptroller General of the United 

States. This action is not a ‘‘major rule’’ 

as defined by 5 U.S.C. 804(2). 

List of Subjects in 40 CFR Part 63 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Reporting and 

recordkeeping requirements. 

Michael S. Regan, 

Administrator. 

For the reasons set forth in the 

preamble, 40 CFR part 63 is amended as 

follows: 

PART 63—NATIONAL EMISSION 

STANDARDS FOR HAZARDOUS AIR 

POLLUTANTS FOR SOURCE 

CATEGORIES 

■ 1. The authority citation for part 63 

continues to read as follows: 

Authority: 42 U.S.C. 7401 et seq. 

Subpart YYYY—National Emission 

Standards for Hazardous Air Pollutants 

for Stationary Combustion Turbines 

■ 2. Section 63.6095 is amended by 

adding paragraphs (a)(3) and (a)(4) and 

removing paragraph (d) to read as 

follows: 

§ 63.6095 When do I have to comply with 

this subpart? 

(a) * * * 

(3) If you start up a new or 

reconstructed stationary combustion 

turbine which is a lean premix gas-fired 

stationary combustion turbine or a 

diffusion flame gas-fired stationary 

combustion turbine as defined by this 

subpart on or before March 9, 2022, you 

must comply with the emissions 

limitations and operating limitations in 

this subpart no later than March 9, 2022. 

(4) If you start up a new or 

reconstructed stationary combustion 

turbine which is a lean premix gas-fired 

stationary combustion turbine or a 

diffusion flame gas-fired stationary 

combustion turbine as defined by this 

subpart after March 9, 2022, you must 

comply with the emissions limitations 

and operating limitations in this subpart 

upon startup of your affected source. 

* * * * * 

[FR Doc. 2022–04848 Filed 3–8–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

49 CFR Parts 385, 390, and 391 

[Docket No. FMCSA–2018–0224] 

RIN 2126–AC15 

Record of Violations 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), Department 

of Transportation (DOT). 

ACTION: Final rule. 

SUMMARY: FMCSA amends its 

regulations to eliminate the requirement 

that drivers operating commercial motor 

vehicles (CMVs) in interstate commerce 

prepare and submit a list of their 

convictions for traffic violations to their 

employers annually. This requirement is 

largely duplicative of a separate rule 

that requires each motor carrier to make 

an annual inquiry to obtain the motor 

vehicle record (MVR) for each driver it 

employs from every State in which the 

driver holds or has held a CMV 

operator’s license or permit in the past 

year. To ensure motor carriers are aware 

of traffic convictions for a driver who is 

licensed by a foreign authority rather 

than by a State, the Agency amends the 

rule to provide that motor carriers must 

make an annual inquiry to each driver’s 

licensing authority where a driver holds 

or has held a CMV operator’s license or 

permit. 

DATES: This final rule is effective May 9, 

2022. 

Comments on the information 

collections in this final rule must be 

submitted to the Office of Information 

and Regulatory Affairs (OIRA) at the 

Office of Management and Budget 

(OMB) by April 8, 2022. 

Petitions for Reconsideration of this 

final rule must be submitted to the 

FMCSA Administrator no later than 

April 8, 2022. 

ADDRESSES: Comments and 

recommendations for the proposed 

information collections should be sent 

within 30 days of publication of this 

final rule to https://www.reginfo.gov/ 

public/do/PRAMain. Find the particular 

information collection by selecting 

‘‘Currently under Review—Open for 

Public Comments’’ or by using the 

search function. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Richard Clemente, Office of Driver and 

Carrier Operations, MCPSD, Federal 

Motor Carrier Safety Administration, 

1200 New Jersey Avenue SE, 

Washington, DC 20590–0001; (202) 366– 

4325; MCPSD@dot.gov. 

SUPPLEMENTARY INFORMATION: This final 

rule is organized as follows: 

I. Availability of Rulemaking Documents 

II. Executive Summary 

A. Purpose and Summary of the Final Rule 

B. Costs and Benefits 

III. Abbreviations 

IV. Legal Basis for the Rulemaking 

V. Discussion of Proposed Rule 

VI. Discussion of Comments and Responses 

A. Comment Overview 

B. Safety Concerns Relating to the 

Elimination of § 391.27 

C. Availability, Timeliness, and Accuracy 

of Driving Histories 

D. Reporting of All Traffic Citations and 

Violations 

E. Traffic Conviction Notification 

Requirement for Non-CDL Drivers 

F. Obtaining MVRs From Foreign Driver’s 

Licensing Authorities 

G. Impact on Driver Qualification Files 

H. Changes to § 391.23(b) 

I. Employer Notification Services (ENS) 

J. Reporting of Traffic Violations Generally 

K. Outside the Scope of the Rulemaking 

VII. Guidance 

A. Section 391.23 Investigation and 

Inquiries 

B. Section 391.25 Annual Inquiry and 

Review of Driving Record 

C. Section 391.27 Record of Violations 

VIII. Changes From the NPRM 

IX. International Impacts 


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