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EO12866EGUGHGNSPSRIA2060‐AQ9120111104Ch6.doc

SECTION 6

Statutory and Executive Order Analyses

6.1 Synopsis

This chapter presents discussion and analyses relating to Executive Orders and statutory

requirements relevant for the proposed EGU GHG NSPS.1

  We discuss analyses conducted to

meet the requirements of Executive Orders 12866 and 13563, as well as, potential impacts to

affected small entities required by the Regulatory Flexibility Act (RFA), as amended by the Small

Business Regulatory Enforcement Fairness Act (SBREFA).  We also discuss the requirements of

the Unfunded Mandates Reform Act of 1995 (UMRA) and assessing the impact of the proposed

rule on state, local and Tribal governments and the private sector, along with the analysis

conducted to comply with the Paperwork Reduction Act (PRA). In addition, we address the

requirements of Executive Order (EO) 13045:  Protection of Children from Environmental

Health and Safety Risks; EO 13132: Federalism; EO 13175:  Consultation and Coordination with

Indian Tribal Governments; EO 12898:  Federal Actions to Address Environmental Justice in

Minority Populations and Low‐Income Populations; and EO 13211: Actions that Significantly

Affect Energy Supply, Distribution, or Use.   

6.2 Executive Order 12866, Regulatory Planning and Review, and Executive Order 13563,

Improving Regulation and Regulatory Review

Under EO 12866 (58 FR 51,735, October 4, 1993), this action is a “ significant regulatory

action” because it “raises novel legal or policy issues arising out of legal mandates”.  

Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for

review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011) and any

changes made in response to OMB recommendations have been documented in the docket for

this action.

In addition, EPA prepared an analysis of the potential costs and benefits associated with

this action.  This analysis is contained in this RIA.  EPA believes this rule will have no compliance

costs associated with it, because electric power companies will choose to build new EGUs that

comply with the regulatory requirements of this proposal because of existing and expected

market conditions.  

6.3 Paperwork Reduction Act

As required by the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., an

                                                      

1 Electricity Generating Unit Greenhouse Gas New Source Performance Standard ‐ The NSPS would be established

under section 111(b) of the Clean Air Act (CAA).  
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information collection request (ICR) will be prepared by EPA (ICR No. XXXX.XX ) and submitted

for approval to the Office of Management and Budget (OMB). The information collection

requirements are based on notification, recordkeeping, and reporting requirements in the NSPS

General Provisions (40 CFR part 60, subpart A), which are mandatory for all operators subject to

national emission standards. These recordkeeping and reporting requirements are specifically

authorized by CAA section 114 (42 U.S.C. 7414). All information submitted to EPA pursuant to

the recordkeeping and reporting requirements for which a claim of confidentiality is made is

safeguarded according to Agency policies set forth in 40 CFR part 2, subpart B.  

The information collection requirements are not enforceable until OMB approves them.

Apart from the recordkeeping and reporting costs, we do not expect other compliance costs for

most units, as the information required by this proposed rule is already collected and reported

by other regulatory programs.  

EPA is accepting comment on the need for this information, the accuracy of the

provided burden estimates, and any suggested methods for minimizing respondent burden,

including the use of automated collection techniques. EPA has established a public docket for

this proposed rule, which includes this ICR, under Docket ID number EPA‐HQ‐OAR‐2011‐0660.

The final rule will respond to any OMB or public comments on the information collection

requirements contained in this proposal.  

6.4. Regulatory Flexibility Act as Amended by the Small Business Regulatory Enforcement

Fairness Act of 1996, 5 U.S.C. et seq.

The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory

flexibility analysis of any rule subject to notice and comment rulemaking requirements under

the Administrative Procedure Act or any other statute unless the agency certifies that the rule

will not have a significant economic impact on a substantial number of small entities. Small

entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities, small entity is

defined as:  

(1) A small business that is defined by the SBA’s regulations at 13 CFR 121.201 (for the

electric power generation industry, the small business size standard is an ultimate parent entity

defined as having a total electric output of 4 million MWh or less in the previous fiscal year. The

NAICS codes for the affected industry are in Table 6‐1 below);

(2) A small governmental jurisdiction that is a government of a city, county, town, school

district or special district with a population of less than 50,000; and  

(3) A small organization that is any not‐for‐profit enterprise which is independently

owned and operated and is not dominant in its field.
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Table 6‐1. Potentially Regulated Categories and Entitiesa

  

Category NAICS

Code

Examples of Potentially Regulated 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.

a Include NAICS categories for source categories that own and operate electric power generating units (includes

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.

After considering the economic impacts of this proposed rule on small entities, the

Administrator of EPA certifies that this action will not have a significant economic impact on a

substantial number of small entities. See, e.g.,; Michigan v. EPA, 213 F.3d 663, 689 (D.C. Cir.

2000) ("The court has consistently held that the RFA imposes 'no obligation to conduct a small

entity impact analysis of effects on entities which it does not regulate.'" (citing Motor & Equip.

Mfrs. Ass'n. v. Nichols, 142 F.3d 449, 467 (D.C.Cir.1998) (quoting United Distribution Cos. v.

FERC, 88 F.3d 1105, 1170 (D.C.Cir.1996))); Cement Kiln Recycling Coalition v. EPA, 255 F.3d 855

(D.C. Cir. 2001); Am. Trucking Ass’n v. EPA, 175 F.3d 1027 (D.C. Cir. 1999); Mid‐Tex Elec. Co‐op,

Inc. v. FERC, 773 F.2d 327 (D.C. Cir. 1985).

We do not include an analysis of the illustrative impacts on small entities that may result

from implementation of this proposed rule by states because we do not anticipate any

compliance costs as a result of this proposal.  Thus the cost‐to‐sales ratios for any affected
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small entity would be zero costs as compared to annual sales revenue for the entity.  The EPA

does not project any new coal‐fired EGUs to be built, so, accordingly, there are no anticipated

economic impacts as a result of this proposal.  

Nevertheless, the EPA is aware that there is substantial interest among small entities

(municipal and rural electric cooperatives) that will be affected by this rule. In light of this

interest, the EPA determined to seek early input from representatives of small entities while

formulating the provisions of this proposed regulation. Such outreach is also consistent with

the President’s January 18, 2011 Memorandum on Regulatory Flexibility, Small Business, and

Job Creation, which emphasizes the important role small businesses play in the American

economy. This process has enabled the EPA to hear directly from these representatives, at a

very preliminary stage, about how it should approach the complex question of how to apply

Section 111 of the CAA to the regulation of GHGs from these source categories.

The EPA conducted an initial outreach meeting with small entity representatives on

April 6, 2011. The purpose of the meeting was to provide an overview of recent EPA proposals

impacting the power sector. Specifically, overviews of the Transport Rule, the Mercury and Air

Toxics Standards, and the Clean Water Act 316(b) Rule proposals were presented.

The EPA conducted outreach with representatives from 20 various small entities that

potentially would be affected by this rule. The representatives included small entity

municipalities, cooperatives, and private investors. We distributed outreach materials to the

small entity representatives; these materials included background, an overview of affected

sources and GHG emissions from the power sector, an overview of CAA section 111, an

assessment of CO2 emissions control technologies, potential impacts on small entities, and a

summary of the listening sessions. We met with eight of the small entity representatives, as

well as three participants from organizations representing power producers, on June 17, 2011,

to discuss the outreach materials, potential requirements of the rule, and regulatory areas

where the EPA has discretion and could potentially provide flexibility.

A second outreach meeting was conducted on July 13, 2011. We met with nine of the

small entity representatives, as well as three participants from organizations representing

power producers. During the second outreach meeting, various small entity representatives

and participants from organizations representing power producers presented information

regarding issues of concern with respect to development of standards for GHG emissions.

Specifically, topics discussed included: boilers with limited opportunities for efficiency

improvements due to NSR complications for conventional pollutants; variances per kilowatt‐

hour and in heat rates over monthly and annual operations; significance of plant age; legal

issues; importance of future determination of carbon neutrality of biomass; and differences

between municipal government electric utilities and other utilities.
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Written comments that the EPA received from, or on behalf of, small entities in

response to discussions at the outreach meetings and questions posed to the small entity

representatives have been placed in the docket for this rulemaking.

We invite comments on all aspects of the proposal and its impacts, including potential

adverse impacts, on small entities.

6.5 Unfunded Mandates Reform Act of 1995

This action contains no Federal mandates under the provisions of Title II of the

Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531‐1538 for State, local, or tribal

governments or the private sector.  

The action imposes no enforceable duty on any State, local or tribal governments or the private

sector. Therefore, this action is not subject to the requirements of sections 202 or 205 of the

UMRA.

This action is also not subject to the requirements of section 203 of UMRA because it

contains no regulatory requirements that might significantly or uniquely affect small

governments.  

Consistent with the intergovernmental consultation provisions of UMRA section 204,

the EPA has initiated consultations with governmental entities affected by this proposed rule.

The EPA invited the following 10 national organizations representing state and local elected

officials to a meeting held on April 12, 2011, in Washington DC: 1) National Governors

Association; 2) National Conference of State Legislatures, 3) Council of State Governments, 4)

National League of Cities, 5) U.S. Conference of Mayors, 6) National Association of Counties, 7)

International City/County Management Association, 8) National Association of Towns and

Townships, 9) County Executives of America, and 10) Environmental Council of States. These 10

organizations of elected state and local officials have been identified by the EPA as the “Big 10”

organizations appropriate to contact for purpose of consultation with elected officials. The

purposes of the consultation were to provide general background on the proposal, answer

questions, and solicit input from state/local governments. During the meeting, officials asked

clarifying questions regarding CAA section 111 requirements and efficiency improvements that

would reduce CO2 emissions. In addition, they expressed concern with regard to the potential

burden associated with impacts on state and local entities that own/operate affected utility

boilers, as well as on state and local entities with regard to implementing the rule. Officials

requested, and the EPA provided, addresses associated with the 123 state and local

governments estimated to be potentially impacted by the proposed rule. Subsequent to the

April 12, 2011 meeting, the EPA received a letter from the National Conference of State

Legislatures. In that letter, the National Conference of State Legislatures urged the EPA to

ensure that the choice of regulatory options maximizes benefit and minimizes implementation

and compliance costs on state and local governments; to pay particular attention to options
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that would provide states with as much flexibility as possible; and to take into consideration the

constraints of the state legislative calendars and ensure that sufficient time is allowed for state

actions necessary to come into compliance.

The EPA offered consultation to 584 tribal officials early in the process of developing this

proposed regulation. Consultation/outreach was conducted with several tribes. The

Consultation and Coordination with Indian Tribal Governments discussion in this chapter

includes a description of the consultation/outreach.

The EPA also conducted outreach to small entities that potentially would be subject to

the requirements of the rule to obtain their advice and recommendations. The RFA discussion

in this chapter describes the outreach.

6.6 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, as

specified in Executive Order 13132.  This action does not impose direct compliance costs on

state or local governments. Thus, Executive Order 13132 does not apply to this action. The EPA

consulted with state and local officials in the process of developing the proposed rule to permit

them to have meaningful and timely input into its development. The EPA met with 10 national

organizations representing state and local elected officials to provide general background on

the proposal, answer questions, and solicit input from state/local governments. The UMRA

discussion in this chapter includes a description of the consultation. In the spirit of EO 13132,

and consistent with EPA policy to promote communications between the EPA and state and

local governments, the EPA specifically solicits comment on this proposed action from state and

local officials.

6.7 Executive Order 13175, Consultation and Coordination with Indian Tribal Governments

Subject to the Executive Order 13175 (65 FR 67249, November 9, 2000) EPA may not

issue a regulation that has tribal implications, that imposes substantial direct compliance costs,

and that is not required by statute, unless the Federal government provides the funds

necessary to pay the direct compliance costs incurred by tribal governments, or EPA consults

with tribal officials early in the process of developing the proposed regulation and develops a

tribal summary impact statement.   

EPA has concluded that this action may have tribal implications.  However, it will neither

impose substantial direct compliance costs on tribal governments, nor preempt Tribal law.

This proposed rule would impose requirements on owners and operators of EGUs. The

EPA is aware of three coal‐fired EGUs located in Indian Country but is not aware of any EGUs

owned or operated by tribal entities.  The EPA notes that this proposal does not affect existing
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sources such as the three coal‐fired EGUs located in Indian Country, but addresses CO2

emissions for new EGU sources only.

In addition, the EPA is aware of other Tribal interests that could be impacted by this

rule. As a result, the EPA offered consultation with tribal officials early in the process of

developing this proposed regulation to permit them to have meaningful and timely input into

its development. Consultation letters were sent to 584 tribal leaders. The letters provided

information regarding EPA’s development of NSPS and emission guidelines for EGUs and

offered consultation. A consultation/outreach meeting was held on May 23, 2011, with the

Forest County Potawatomi Community, the Fond du Lac Band of Lake Superior Chippewa

Reservation, and the Leech Lake Band of Ojibwe. Other tribes participated in the call for

information gathering purposes. In this meeting, the EPA provided background information on

the GHG emission standards to be developed and a summary of issues being explored by the

Agency. Tribes suggested that the EPA consider expanding coverage of the GHG standards to

include combustion turbines, lowering the 250 MMBtu per hour heat input threshold so as to

capture more EGUs, and including credit for use of renewables. The tribes were also interested

in the scope of the emissions averaging being considered by the Agency (e.g., over what time

period, across what units). In addition, the EPA held a series of listening sessions on this

proposed action. A few tribes were invited to participate in a session on February 17, 2011 with

the state agencies, and a separate session was held with the tribes on April 20, 2011.

The EPA will also hold additional meetings with tribal environmental staff to inform

them of the content of this proposal as well as provide additional consultation with tribal

elected officials where it is appropriate. We specifically solicit additional comment on this

proposed rule from tribal officials.

6.8 Executive Order 13045, Protection of Children from Environmental Health Risks and

Safety Risks

  This action is not subject to EO 13045 (62 FR 19885, April 23, 1997) because it is not

economically significant as defined in EO 12866. This proposed rule is not subject to EO 13045

because the proposal likely does not produce changes in emissions of greenhouse gases or

other pollutants (but it does encourage the current trend towards cleaner generation, helping

to protect air quality and children's health).  The Agency recognizes that children are among the

groups most vulnerable to climate change impacts and the public is invited to submit comments

or identify peer reviewed studies relevant to this proposal.

6.9 Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy

Supply, Distribution, or Use
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This action is not a “significant energy action” as defined in Executive Order 13211 (66

FR 28355 (May 22, 2001)), because it is not likely to have a significant adverse effect on the

supply, distribution, or use of energy.  This action is not anticipated to have notable impacts on

emissions, costs or energy supply decisions for the affected electric utility industry.  

6.10 Executive Order 12898:  Federal Actions to Address Environmental Justice in Minority

Populations and Low‐Income Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive

policy on environmental justice.  Its main provision directs Federal agencies, to the greatest

extent practicable and permitted by law, to make environmental justice part of their mission by

identifying and addressing, as appropriate, disproportionately high and adverse human health

or environmental effects of their programs, policies, and activities on minority populations and

low‐income populations in the U.S.

EPA has determined that this proposed rule will not have disproportionately high and

adverse human health or environmental effects on minority or low‐income populations,

because it increases the level of environmental protection for all affected populations without

having any disproportionately high and adverse human health or environmental effects on any

population, including any minority or low‐income population.   

These proposed standards will improve public health and welfare in the future by

providing legal assurance that primary CO2 emissions from newly constructed electric

generating units potentially contributing to climate change and ocean acidification are limited

to the levels proposed in this rulemaking. Reduced CO2 emissions from the power sector would

benefit all populations. However, within communities experiencing climate change, certain

parts of the population may be especially vulnerable to its adverse effects; these include the

poor, the elderly, those already in poor health, the disabled, those living alone, and indigenous

populations dependent on one or a few resources. In addition, the U.S. Climate Change Science

Program stated as one of its conclusions:”The United States is certainly capable of adapting to

the collective impacts of climate change. However, there will still be certain individuals and

locations where the adaptive capacity is less and these individuals and their communities will

be disproportionately impacted by climate change.” These specific sub‐populations may receive

particularly important benefits from reductions in GHGs.   

   

6.11 National Technology Transfer and Advancement Act (section may need revision)

Section 12(d) of the NTTAA of 1995 (Public Law No. 104‐113; 15 U.S.C. 272 note) directs

the EPA to use Voluntary Consensus Standards in their regulatory and procurement activities

unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary

consensus standards are technical standards (e.g., materials specifications, test methods,

sampling procedures, business practices) developed or adopted by one or more voluntary

consensus bodies. The NTTAA directs the EPA to provide Congress, through annual reports to
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the OMB, with explanations when an agency does not use available and applicable VCS.

This rulemaking involves technical standards. The EPA cites the following standards in

this proposed rule: EPA Methods 1 (Sample and velocity traverses for stationary sources), 2F

(Determination of Stack Gas Velocity and Volumetric Flow Rate With Three‐Dimensional

Probes), 2H (Determination of Stack Gas Velocity Taking Into Account Velocity Decay Near the

Stack Wall), 3A (Determination of O2 and CO2 Concentrations in Emissions From Stationary

Sources (Instrumental Analyzer Procedure)), 3B (Gas analysis for the determination of emission

rate correction factor or excess air), 4 (Determination of Moisture Content in Stack Gases), and

19 (Determination of SO2 Removal Efficiency and PM, SO2, and NOX Emission Rates) of 40 CFR

part 60. In addition, the EPA cites ASTM Methods D240‐09 (Standard Test Method for Heat of

Combustion of Liquid Hydrocarbon Fuels by Bomb Calorimeter, for number 2 fuel oil heat

content), D1826‐94 (2010) (Standard Test Method for Calorific (Heating) Value of Gases in

Natural Gas Range by Continuous Recording Calorimeter, for natural gas heat content), D4809‐

09a (Standard Test Method for Heat of Combustion of Liquid Hydrocarbon Fuels by Bomb

Calorimeter (Precision Method), for number 2 fuel oil heat content), D5287‐08 (Standard

Practice for Automatic Sampling of Gaseous Fuels), D4057‐06 (Standard Practice for Manual

Sampling of Petroleum and Petroleum Products), and D4177‐95(2010) (Standard Practice for

Automatic Sampling of Petroleum and Petroleum Products). The EPA is proposing use of

ANSI/ASME Method PTC 19.19‐1981 as an acceptable alternative to EPA Method 3B.

Consistent with the NTTAA, the EPA conducted searches to identify VCS in addition to

the identified EPA methods. No applicable VCS were identified for EPA Methods 2F, 2H, and 19.

The search and review results have been documented and are placed in the docket for this

proposed rule.  

The search identified eight VCS that were potentially applicable for this rule in lieu of

EPA reference methods. After reviewing the available standards, the EPA determined that the

eight candidate VCS identified would not be practical due to lack of equivalency,

documentation, validation data, and other important technical and policy considerations.  

The EPA welcomes comments on this aspect of the proposed rulemaking and,

specifically, invites the public to identify potentially‐applicable VCS and to explain why such

standards should be used in this action.