[Federal Register Volume 87, Number 46 (Wednesday, March 9, 2022)]
[Rules and Regulations]
[Pages 13183-13192]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04848]


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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.

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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: 
<a href="/cdn-cgi/l/email-protection#aec5c7c0c980c3cbc2cfc0c7cbeecbdecf80c9c1d8"><span class="__cf_email__" data-cfemail="167d7f7871387b737a77787f735673667738717960">[email protected]</span></a>.

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-air-pollution/stationary-combustion-turbines-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.

[[Page 13184]]

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[deg] North)). The NESHAP 
requires new or reconstructed stationary combustion turbines in the 
lean premix gas-fired, lean premix oil-fired, 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 (O<INF>2</INF>). 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 gas-fired 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 gas-fired 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).
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    \1\ The 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.
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    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

[[Page 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

[[Page 13186]]

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 gas-fired 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 
gas-fired stationary combustion turbines that have been installed at 
major sources of HAP since 2003 to operate without emission standards 
that are required

[[Page 13187]]

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.
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    \2\ CARB 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.
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    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 gas-fired 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

[[Page 13188]]

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 ``NO<INF>X</INF> 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 NO<INF>X</INF> 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 
Fourier-transform 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 site-specific 
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

[[Page 13189]]

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:
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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

[[Page 13190]]

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 dual-
purpose catalysts, which are not ``off-the-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 non-compliance, 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 gas-fired 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 NO<INF>X</INF> 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

[[Page 13191]]

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-by-case 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.
---------------------------------------------------------------------------

    \3\ The 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.
---------------------------------------------------------------------------

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/laws-regulations/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.
---------------------------------------------------------------------------

    \4\ Economic 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.
---------------------------------------------------------------------------

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.

[[Page 13192]]

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, low-income 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 HAP-related 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

0
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

0
2. Section 63.6095 is amended by adding paragraphs (a)(3) and (a)(4) 
and removing paragraph (d) to read as follows:


Sec.  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


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