Emergency Application — Midwest Ozone Group, Applicant v. Environmental Protection Agency, et al.

Supreme Court briefJul 26, 2024

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No. _____

In the Supreme Court of the United States

M IDWEST O ZONE G ROUP ,

Applicant,

E NVIRONMENTAL P ROTECTION A GENCY AND M ICHAEL S. R EGAN ,

A DMINISTRATOR , ET. AL,

Respondents.

EMERGENCY APPLICATION

FOR IMMEDIATE STAY OF FINAL AGENCY ACTION

PENDING DISPOSITION OF PETITION FOR REVIEW

To the Honorable John G. Roberts, Jr.,

Chief Justice of the Supreme Court of the United States and Circuit Justice

for the District of Columbia Circuit

Ancil G. Ramey (Lead Counsel)

David M. Flannery

Kathy G. Beckett

Keeleigh S. Huffman

STEPTOE & JOHNSON PLLC

Post Office Box 1588

Charleston, WV 25326

(304) 353-8000

Ancil.Ramey@steptoe-johnson.com

Edward L. Kropp

STEPTOE & JOHNSON PLLC

PO Box 36425

Indianapolis, Indiana 46236

Counsel for Midwest Ozone Group

PART IES TO THIS APPLICATION

The parties to this proceeding are as follows:

Applicant is Midwest Ozone Group

ii.

Respondents are United States Environmental Protection Agency and

Michael S. Regan, Administrator, United States Environmental Protection

Agency

P A R T I E S T O T H E P R O C E E D IN G S

Petitioners Before the D.C. Circuit:

i. D.C. Cir. No. 24-1120 (lead case), State of West Virginia, et al. v. EPA, et al.

Petitioners: State of West Virginia; State of Indiana; State of Alabama; State

of Alaska; State of Arkansas; State of Florida; State of Georgia; State of Idaho;

State of Iowa; Commonwealth of Kentucky; State of Louisiana; State of

Mississippi; State of Missouri; State of Montana; State of Nebraska; State of

New Hampshire; State of North Dakota; State of Oklahoma; State of South

Carolina; State of South Dakota; State of Tennessee; State of Texas; State of

Utah; Commonwealth of Virginia; State of Wyoming

Respondents: The United Sates Environmental Protection Agency; Michael

S. Regan, EPA Administrator.

Intervenors for Petitioners: Louisiana Public Service Commission, Tennessee

Valley Public Power Association, Inc.,

Intervenors for Respondent: American Lung Association, American Public

Health Association, California Air Resources Board, City and County of

Denver, City of Boulder, City of Chicago, City of New York, Clean Air Council,

Clean Wisconsin, Commonwealth of Massachusetts, Commonwealth of

Pennsylvania, District of Columbia, Edison Electric Institute, Natural

Resource Defense Council, State of Arizona, State of Colorado, State of

Connecticut, State of Delaware, State of Hawaii, State of Illinois, State of

Maryland, State of Michigan, State of New Mexico, State of New York, State

of North Carolina, State of Oregon, State of Rhode Island, State of Vermont,

State of Washington, State of Wisconsin, State of New Jersey, Consolidated

Edison, Inc., New York Port Authority, Pacific Gas and Electric Company,

Power Companies Climate Coalition, Sacramento Municipal Utility District.

Amicus Curiae for Petitioners: The Chamber of Commerce for the United

States of America;

Amicus Curiae for Respondent: Sierra Club, Environmental Defense Fund;

Professor Rachel Rothschild,

ii. No. 24-1121: State of Ohio, et. al v. EPA, et al

Petitioners: State of Ohio; State of Kansas

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Movant - Amicus Curiae for Petitioners: The Chamber of Commerce of the

United Sates of America.

iii. No. 24-1122: National Rural Electric Cooperative Association v. EPA, et. al

Petitioner: National Rural Electric Cooperative Association

Respondents: Michael S. Regan, Administrator, United Sates Environmental

Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

iv. No. 24-1124: National Mining Association, et. al v. EPA, et al

Petitioners: National Mining Association; America's Power

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

v. No. 24-1126: Oklahoma Gas and Electric Company v. EPA, et. al

Petitioner: Oklahoma Gas and Electric Company

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

vi. No. 24-1128: Electric Generators for a Sensible Transition v. EPA

Petitioners: Electric Generators for a Sensible Transition

Respondent: United States Environmental Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

vii. No. 24-1142: United Mine Workers of America, et al v. EPA

Petitioners: United Mine Workers, AFL-CIO

iii

Respondent: United States Environmental Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

viii. No. 24-1143: International Brotherhood of Electrical Workers v. EPA

Petitioner: International Brotherhood of Electrical Workers, AFL-CIO

Respondent: United States Environmental Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

ix. No. 24-1144: International Brotherhood of Boilermakers v. EPA

Petitioner: International Brotherhood of Boilermakers, Iron Ship Builders,

Blacksmiths, Forgers, and Helpers, AFL-CIO.

Respondent: United States Environmental Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

x. No. 24-1146: Midwest Ozone Group v. EPA, et. al

Petitioner: Midwest Ozone Group

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Movant - Amicus Curiae for Petitioner: The Chamber of Commerce of the

United States of America.

xi. No. 24-1152: Edison Electric Institute v. EPA

Petitioner: Edison Electric Institute

Respondent: United States Environmental Protection Agency

Amicus Curiae for Petitioner: The Chamber of Commerce of the United

States of America

xii. No. 24-1153: NACCO Natural Resources Corporation v. EPA, et. al

Petitioner: NAACO Natural Resources Corporation

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Amicus Curiae for Petitioner: The Chamber of Commerce of the United

States of America

xiii. No. 24-1155: Idaho Power Company v. EPA, et. al

Petitioner: Idaho Power Company

Respondents: Michael S. Regan, Administrator, United States

Environmental Protection Agency

Amicus Curiae for Petitioner: The Chamber of Commerce of the United

States of America

xiv. No. 24-1222: Appalachian Region Independent Power Producers Association

v. EPA

Petitioner: Appalachian Region Independent Power Producers Association

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Amicus Curiae for Petitioner: The Chamber of Commerce of the United

States of America

xv. No. 24-1226: Rainbow Energy Center, LLC v. EPA

Petitioner: Rainbow Energy Center, LLC

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Amicus Curiae for Petitioner: The Chamber of Commerce of the United

States of America

xvi. No. 24-1227: Montana-Dakota Utilities Co. v. EPA

Petitioner: Montana-Dakota Utilities Co.

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Amicus Curiae for Petitioner: The Chamber of Commerce of the United

States of America

xvii. No. 24-1233: Westmoreland Mining Holdings LLC v. EPA

Petitioner: Westmoreland Mining Holdings LLC

Respondents:

Michael

Regan,

Administrator,

United

States

Environmental Protection Agency

Amicus Curiae for Petitioner: The Chamber of Commerce of the United

States of America

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6, Applicant the Midwest Ozone Group states as follows:

The Midwest Ozone Group is a continuing association of organizations and

individual entities operated to promote the general interests of its membership on

matters related to air emissions and air quality. Midwest Ozone Group has no parent

companies, subsidiaries, or affiliates that have issued shares or debt securities to the

public, although specific individuals in the membership of Midwest Ozone Group

have done so. Midwest Ozone Group has no outstanding shares or debt securities in

the hands of the public. It has no parent company, and no publicly held company has

a 10% or greater ownership interest in Midwest Ozone Group.

vii

TABLE OF CONTENTS

PARTIES TO THIS APPLICATION .............................................................................. i

PARTIES TO THE PROCEEDINGS ............................................................................. i

CORPORATE DISCLOSURE STATEMENT ............................................................. vii

TABLE OF CONTENTS ............................................................................................. viii

TABLE OF AUTHORITIES ......................................................................................... ix

GLOSSARY .................................................................................................................... x

INTRODUCTION .......................................................................................................... 2

OPINION BELOW......................................................................................................... 3

JURISDICTION............................................................................................................. 3

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS ............... 3

REASONS FOR GRANTING THE APPLICATION .................................................... 3

I. Applicant Is Likely To Succeed On The Merits ................................................. 4

II. Applicant’s Membership Will Suffer Irreparable Harm Absent A Stay .......... 5

Power Companies’ Concerns About Grid Reliability Have Not

Been Addressed By The Rule............................................................ 5

The Nation’s Regional Transport Organizations Are Alarmed

About Reliability As Impacted By This Rule in the Face of

Significant Electricity Demand Growth ........................................... 8

III. The Balance Of Harms And The Public Interest Strongly Favor A Stay .... 11

CONCLUSION............................................................................................................. 12

viii

TABLE OF AUTHORITIES

Page(s)

Cases:

Wash. Metro. Area Transit Comm’n v. Holiday Tours, 559 F.2d 841 (D.C.

Cir. 1977) ................................................................................................................ 3

West Virginia v. EPA, 597 U.S. 697 (2022) ................................................................. 4

Thunder Basin Coal Co. v. Reich, 510 U.S. 200 (1994) ............................................... 5

Armor & Co. v. Freeman, 304 F.2d 404 (D.C. Cir. 1962) ............................................ 5

Sottera, Inc. v. FDA, 627 R.3d 981 (D.C. Cir. 2010) .................................................... 5

Constitutional Provisions, Statutes, and Rules:

5 U.S.C. §705 .................................................................................................................. 3

28 U.S.C. §1254 .............................................................................................................. 3

28 U.S.C. §1651 .............................................................................................................. 3

42 U.S.C. §7607 .......................................................................................................... 3, 4

Other Authorities:

89 Fed. Reg. 39,798 (May 9, 2024) ............................................................................ 1, 3

GLOSSARY

BSER

Best System of Emissions Reduction

CCS

Carbon Capture and Sequestration/Storage

CO2

Carbon Dioxide

EGU

Electric Generating Unit

EPA

United States Environmental Protection Agency

MISO

Midcontinent Independent System Operator, Inc.

PJM

PJM Interconnection, L.L.C.

Rule

New Source Performance Standards for Greenhouse

Gas Emissions From New, Modified, and

Reconstructed Fossil Fuel-Fired Electric Generating

Units; Emissions Guidelines for Greenhouse Gas

Emissions From Existing Fossil Fuel-Fired Electric

Generating Units; and Repeal of the Affordable Clean

Energy Rule, 89 Fed. Reg. 39,798 (May 9, 2024)

SPP

Southwest Power Pool, Inc.

TO THE HONORABLE JOHN G. ROBERTS, JR.,

CHIEF JUSTICE OF THE SUPREME COURT OF THE UNITED

STATES AND CIRCUIT JUSTICE FOR THE DISTRICT OF

COLUMBIA CIRCUIT:

The Applicant Midwest Ozone Group respectfully requests an immediate stay

of the final rule of the United States Environmental Protection Agency published on

May 9, 2024, in the Federal Register (89 Fed. Reg. 39,798), entitled “New Source

Performance Standards for Greenhouse Gas Emissions From New, Modified, and

Reconstructed Fossil Fuel-Fired Electric Generating Units; Emissions Guidelines for

Greenhouse Gas Emissions From Existing Fossil Fuel-Fired Electric Generating

Units; and Repeal of the Affordable Clean Energy Rule” (the “Rule”).

The Applicant has a petition for review of the Rule pending in the United

States Court of Appeals for the District of Columbia Circuit and, due to the immediate

harm from the Rule, moved for a stay pending that court’s review. A panel of that

court denied that motion, forcing the Applicant to seek emergency relief from this

Court.

The Applicant agrees with and incorporates the Application by the State of

West Virginia; State of Indiana; State of Alabama; State of Alaska; State of Arkansas;

State of Florida; State of Georgia; State of Idaho; State of Iowa; Commonwealth of

Kentucky; State of Louisiana; State of Mississippi; State of Missouri; State of

Montana; State of Nebraska; State of New Hampshire; State of North Dakota; State

of Oklahoma; State of South Carolina; State of South Dakota; State of Tennessee;

State of Texas; State of Utah; Commonwealth of Virginia; State of Wyoming (the

“States”) filed with this Court on July 23, 2024. The Applicant also agrees with and

incorporates the applications of other applicants that have filed with this Court

seeking an immediate stay of the Rule in its entirety. The Applicant will not repeat

these arguments but will amplify the reasons why the Rule merits this Court’s

review, is unlawful, and poses immediate and irreparable harm to our Nation’s

electric generation as demonstrated in more detail in the declarations accompanying

this Application.

INTRODUCTION

EPA has a long history of attempting to regulate greenhouse gas emissions

from fossil fuel fired power plants; however, this is the first instance that EPA is

attempting to use carbon capture technology (CCS) as a basis for doing so with respect

to existing fossil fuel fired steam power plants. See 89 Fed. Reg. 39,840. Although

EPA is aware of the “significant capital expenditures involved in deploying CCS

technology,” it set a mandate to 90% capture as the best system of emissions reduction

by 2039. Id. at 39,801.

In addition, reliability of the electric power grid is an overarching concern raised

by all stakeholders about EPA’s efforts to re-define electric power generation under

this Rule. This concern has largely been ignored by EPA, as evidenced by the Rule’s

stringent regulatory requirements and abbreviated compliance timelines that impose

real threats to energy access for all users of domestic energy.

It is necessary for an immediate stay to be granted to stop the Rule from taking

effect, resulting economic harm and irreparable injury to Applicant’s membership,

and untold injury to the electric power industry that will cause a ripple effect

impacting on consumers of electricity and the public.

OPINION BELOW

The D.C. Circuit’s July 19, 2024, order denying the Applicant’s motion for a

stay is unpublished and may be found at App.002a. EPA’s Rule is published at 89

Fed. Reg. 39,798 (May 9, 2024) and reprinted beginning at App.006a.

JURISDICTION

This Court has jurisdiction over this Application pursuant to 28 U.S.C.

§ 1254(1) and authority to grant the Applicant relief under the Administrative

Procedure Act, 5 U.S.C. § 705, the Clean Air Act, 42 U.S.C. § 7607, and the All Writs

Act, 28 U.S.C. § 1651(a).

CONSTITUTIONAL, STATUTORY, AND REGULATORY

PROVISIONS

Pertinent constitutional, statutory, and regulatory provisions are reprinted in

beginning at App.274a.

REASONS FOR GRANTING THE APPLICATION

Courts traditionally consider four factors to determine whether a stay would be

appropriate. The factors are as follows: (1) likelihood of success on the merits; (2) risk

of irreparable harm to movant; (3) risk of injury to non-movants; and (4) whether a

stay would be in the public interest. Wash. Metro. Area Transit Comm’n v. Holiday

Tours, 559 F.2d 841, 842-43 (D.C. Cir. 1977). Each of these factors heavily fall in favor

of the Applicant. The Rule exceeds EPA’s statutory authority, conflicts with the Clean

Air Act, and threatens the Nation’s electric generation in the same manner addressed

by this Court in West Virginia v. EPA, 597 U.S. 697 (2022). Upon reviewing the facts

in light of the stay factors, the Court should grant a stay.

Applicant Is Likely To Succeed On The Merits.

A court may invalidate actions taken by EPA that are arbitrary, capricious, an

abuse of discretion, not in accordance with the law, contrary to a constitutional right,

in excess of statutory jurisdiction, or without proper observance of administrative

procedure as required by law. 42 U.S.C. § 7607(d)(9).

The Rule here is arbitrary and capricious and in excess of the authority given

to EPA by and through the Clean Air Act. In fact, the Rule offers inflexible statutory

design, unfair technology projections, and funding assumptions that are speculative

at best. As our fellow Petitioner-Movants have demonstrated, the Rule at issue here

is a blatantly obvious attempt by EPA to use its authority (albeit impermissibly) to

establish impossibly high standards for fossil fuel fired power plants to drive them

towards closure. This backdoor and indirect scheme to eliminate fossil fuel power

plants entirely is outside the scope of the authority granted by the Clean Air Act or

any other delegation of authority by Congress.

Applicant agrees with the other Applicants that the Rule is outside of the scope

of the Clean Air Act and confirmed to be unlawful by West Virginia v. EPA, 597 U.S.

697 (2022). Accordingly, it is highly likely that the Applicant will succeed on the

merits.

II.

Applicant’s Membership Will Suffer Irreparable Harm Absent A Stay.

Power Companies’ Concerns About Grid Reliability Have

Not Been Addressed By The Rule.

The risk of irreparable harm for the Applicant’s members is incredibly high.

Without a stay, the membership of the Applicant will find it difficult to maintain the

same productivity and operation while budgeting for the enormous cost of compliance.

The unrecoverable economic losses combined with the costly substantial operational

changes amounts to irreparable harm which necessitates a stay. Thunder Basin Coal

Co. v. Reich, 510 U.S. 200, 220-21 (1994) (Scalia, J., concurring) (“[C]omplying with a

regulation later held invalid almost always produces the irreparable harm of

nonrecoverable compliance costs.”); Armour & Co. v. Freeman, 304 F.2d 404, 406

(D.C. Cir. 1962) (Any “loss of profits which could never be recaptured” is an

irreparable harm.); Sottera, Inc. v. FDA, 627 F.3d 891, 899 (D.C. Cir. 2010) (injunctive

relief appropriate to avoid unrecoverable economic injury). In the absence of a stay,

these economic losses cannot be recovered, and the operational changes, which could

jeopardize meeting residential and industrial electricity demands, cannot be easily

reversed should the challenged Rule later be invalidated as the Applicant’s members

will have no recourse against EPA.

Further explanation of the adverse impacts this Rule are included in the

attached declaration of Jaret Gibbons, Executive Director of the Appalachian Region

Independent Power Producers Association (“ARIPPA”), which details the irreparable

harm that will be experienced by the members of ARIPPA. App.287a. This Rule

ignores the fact that ARIPPA’s coal refuse fired reclamation-to-energy facilities are

not operationally nor functionally like other fossil fuel-fired power plants. App.298a,

Gibbons ¶¶17-18. Seventy-five percent of the heat input for these units comes from

coal refuse as an outgrowth of the Public Utility Regulatory Policy Act. App.292a,

Gibbons ¶2. These coal refuse fired facilities promote the environmental reclamation

of coal refuse. Id. EPA elected to ignore the unique operations of these facilities and

therefore failed to identify a best system of emission reduction in this Rule that is

adequately demonstrated unique to these facilities.

Any compliance requirement that includes switching from utilizing coal

refuse to another fuel source (such as co-firing natural gas) creates

substantial technical and economic difficulties and more importantly

would result in significant reduction or elimination of the environmental

remediation of coal refuse performed by these facilities. Requiring

carbon capture and storage (CCS) at these facilities is not adequately

demonstrated, creates unreasonable costs, and is an unnecessary

duplication of existing controls when the reduction in net GHG

emissions from the operation of coal refuse-fired EGUs in appropriately

considered.

App.297a, Gibbons ¶16.

By choosing to include coal refuse-fired EGUs into this Rule, EPA is defeating

the environmental purpose of these plants which is “to remove and remediate

abandoned coal refuse piles throughout the Appalachian region.” App.300a, Gibbons

¶24. This Rule with require ARIPPA’s members to “immediately begin taking steps

to prepare and commit to the premature retirement of the facilities and the cessation

of the benefits they provide to the communities and states where they are located.”

Id. EPA ignored these facts and failed to respond to timely comments filed by

ARIPPA.

EPA has dismissed concerns related to the threat the Rule presents to the

electric power grid by noting that it has met with representatives of power companies

and grid operators to discuss grid reliability and found no threat. 89 Fed. Reg. 39,803.

Meeting with representatives is not the same as resolving the numerous substantial

reservations of stakeholders who have clearly stated their objective and factual grid

reliability observations.

EPA’s attempt to shore up its argument that the Rule does not impact grid

reliability relies on the assertion that it “considered the impacts on the power sector,

on a nationwide and long-term basis, of determining CCS to be the BSER for longterm coal-fired steam generating units.” 89 Fed. Reg. at 39,886. EPA concludes it

observes only “limited non-adverse impacts on the long-term structure of the power

sector or on the reliability of the power sector.” Id. CCS is not commonly available in

a manner that suggests obtaining such technology is a given either by planning to

purchase or to develop it to meet a compliance deadline. In addition, the option offered

by EPA to switch to natural gas by 2030 is not an option for ARIPPA coal refuse

facilities “where access to natural gas is limited and expanding natural gas pipelines

to service them would be untenable.” App.298a, Gibbons ¶19. Electricity demand is

increasing at a rate that requires immediate action to manage the Rule’s impact.

App.301a, Gibbons ¶ 27.

The Nation’s Regional Transport Organizations Are

Alarmed About Reliability As Impacted By This Rule in the

Face of Significant Electricity Demand Growth.

EPA blithely states in the Rule that it is “finalizing multiple adjustments to

the proposed rules that ensure the requirements in these final actions can be

implemented without compromising the ability of power companies, grid operators,

and state and Federal energy regulators to maintain resource adequacy and grid

reliability.” 89 Fed. Reg. at 39,803. In response to comments, EPA states it had

“engaged with the balancing authorities that submitted comments to the docket, the

staff and Commissioners of the Federal Energy Regulatory Commission, the

Department of Energy, the North American Electric Reliability Corporation, and

other expert entities during the course of this rulemaking.” Id. EPA’s engagement

with these stakeholders has not led to any significant changes in approach to address

the reliability concerns recognized by all of these agencies. Instead, EPA’s final Rule

remains consistent with its initial proposed plan of forcing electric power to largely

eliminate coal-fired generation by 2032. Longer compliance timelines for CCS, use of

Remaining Useful Life and Other Factors to address reliability, short-term

emergency procedures are all mere acknowledgements of others’ concerns with no

real relief. Acknowledgment is not engagement.

On May 8, 2024, following EPA’s issuance of the Rule, an electric power grid

operator, PJM, warned EPA had not sufficiently considered reliability of electricity:

We are seeing vastly increased demand as a result of new data center

load, electrification of vehicles and increased electric hearing load. The

future demand for electricity cannot be met simply through renewables

given their intermittent nature. Yet in the very years when we are

projecting significant increases in the demand for electricity, the Rinal

Rule may work to drive premature retirement of coal units that provide

essential reliability services and dissuade new gas resources from

coming online. The EPA has not sufficiently reconciled its compliance

dates with the need for generation to meet dramatically increasing load

demand on the system.

App.389a.

Another electric grid operator, Southwest Power Pool (SPP) provided a May

20, 2024, statement titled, “EPA Rule Could Severely Impact Nation’s Efforts Toward

Energy Production, Reliability.” App.391a. SPP commented that although EPA’s

final rule considers its comments, “concerns about future production capacity remain

among those in the power providing sector” noting, “the need to ensure the reliable

delivery of power is becoming more critical and complex given the frequency of

extreme weather events and increasing demand for electricity, among other factors.”

Id.

Similar grid reliability concern has been expressed by the SPP in a “Statement

on the Recent EPA Greenhouse Gas Emissions Rule” issued on April 25, 2024,

SPP remains concerned, however, about the impact the Final Rule may

have on the region’s ability to maintain resource adequacy and ensure

reliability in the SPP region. SPP is concerned that limited technological

and infrastructure availability and the compliance time frame will have

deleterious impacts including the retirement of, or the decision not to

build, thousands of MWs of baseload thermal generation. . .. SPP

continues to be concerned that CCS has not yet been adequately

demonstrated at the required capture rate, has not been commercially

produced at scale, and will not be widely available and practicable at the

level needed for the Final Rule’s 2032 compliance time frame.

App.396a.

The immediate impacts of this Rule are evident to SPP,

SPP is not expressing these concerns about a hypothetical resource

adequacy scenario in the future. SPP and other grid operators are

currently working to develop planning and operations policies and

practices to deal with resource adequacy issues that have already

manifested. SPP’s recent Loss of Load Expectation (LOLE) study

indicated that, by 2029, as much as a 50% winter season Planning

Reserve Margin (PRM) could be necessary to maintain a one-day-in-tenyears LOLE. A PRM of that magnitude would require a significant

amount of new capacity to be added in a short time frame. It is important

to note that this study considered SPP’s existing and projected future

resource mix without considering the potential impacts of the Final

Rule’s 2032 deadline for certain emissions limits. In other words, the

study and its projected increase in PRM did not consider the additional

at-risk generation that may retire and not be adequately replaced in a

relatively short time frame resulting from the compliance time frames

contained in the Final Rule. This outcome would further intensify the

need for generating capacity and associated transmission upgrades in

the SPP region, likely at a pace and cost unprecedented for the industry.

Id.

Another electric grid operator, Midcontinent Independent System Operator

(MISO) has also weighted-in on this concern. MISO’s Response to the Reliability

Imperative, Report (February 2024) notes, “it is time ‘to face some hard realities,’

including ‘immediate and serious challenges to the reliability of our region’s electric

grid.’” App.400a. MISO has stated further that while “several emerging technologies

may someday change that calculus, they are not yet proven at grid scale.” Id.

According to MISO, “a key risk is that many ‘dispatchable’ resources that can be

turned on and off and adjusted as needed to meet customer demand minute-byminute are being replaced with weather-dependent resources such as wind and

solar,” which lack “certain key reliability attributes that are needed to keep the grid

reliable every hour of the year.” Id.

In conclusion, the electric power grid operators remain unconvinced that EPA

has adequately addressed the reliability problems created by the Rule.

III.

The Balance Of Harms And The Public Interest Strongly Favor A Stay.

Contemplation of the consequences that would flow from this Court’s decision

to grant or deny the request indicates that the balance falls in favor of a stay. There

is no indication that a stay will injure other parties. States and regulated powerplants

are governed by a myriad of existing regulations that limit air emissions. Should the

Court grant the requested stay these other regulations will not become invalidated

or somehow cease to exist. Those important environmental laws will remain in effect

in the event of a stay and will continue to remain in force long after this Rule is tested.

No environmental harm will come to pass by staying this Rule to ensure that it is

legally sound. As such, EPA cannot assert that any harm will come from a careful

review of the validity of this agency action.

In an August 1, 2023, letter to EPA Administrator Regan, Senator Capito and

thirty-eight other members of Congress highlighted the concerns repeatedly raised

by PJM, SPP, and MISO, noting:

This proposed rule will drastically increase costs and reduce electricity

supplies. These effects will not only be borne by the regulated

community, but by every American, manufacturer, and small business

that relies on the electricity grid. Federal Energy Regulatory

Commissioners, as well as the Chief Executive Officers of the North

American Electric Reliability Corporation, the Regional Transmission

Organization PJM, and one of America’s largest electric cooperatives all

warned about increasing risks to the stability of the electric grids in the

United States and agree that we are heading towards a reliability crisis

that will be exacerbated by policy-driven plant retirements.

App.434a.

EPA has ignored the concerns of power companies and electric grid

operators to such a degree that members of Congress felt it was necessary to

intervene to ensure their positions were heard.

The assertion that EPA “engaged with and resolved” the balancing authorities’

concerns regarding grid reliability and the Rule “can be implemented without

compromising the ability of power companies, grid operators, and state and Federal

energy regulators to maintain resource adequacy and grid reliability” disregards the

substantive reliability concerns. 89 Fed. Reg. 39,801. In short, EPA’s Rule merely tips

its hat at comments received concerning grid reliability and is arbitrary and

capricious and will result in immediate and irreparable harm to the domestic electric

grid.

Absent a stay of the entire Rule, the harm to the public will be immediate and

will be prevalent in all aspects of the United States’ economy.

CONCLUSION

For the foregoing reasons, Applicant respectfully requests an immediate stay

of EPA’s Rule in its entirety pending judicial review.

Respectfully submitted,

/s/ Ancil G. Ramey

Ancil G. Ramey (Counsel of Record)

David M. Flannery

Kathy G. Beckett

Keeleigh S. Huffman

STEPTOE & JOHNSON PLLC

707 Virginia Street, East

Post Office Box 1588

Charleston, WV 25326

(304) 353-8000

Ancil.Ramey@steptoe-johnson.com

Edward L. Kropp

STEPTOE & JOHNSON PLLC

PO Box 36425

Indianapolis, Indiana 46236

Counsel for Midwest Ozone Group

APPENDIX

INDEX OF APPENDICES

Appendix 1 Order of the United States Court of Appeals for the District of

Columbia Circuit Denying Motions to Stay (July 19, 2024) ............. 001a

Appendix 2 New Source Performance Standards for Greenhouse Gas Emissions

From New, Modified, and Reconstructed Fossil Fuel-Fired Electric

Generating Units; Emission Guidelines From Existing Fossil FuelFired Electric Generating Units; and Repeal of the Affordable Clean

Energy Rule, 89 Fed. Reg. 39,798 (May 9, 2024)............................... 005a

Appendix 3 5 U.S.C. §705; 28 U.S.C. §1651(a); 28 U.S.C. §1254(l); 42 U.S.C. §7607;

42 U.S.C. §7607(d)(9) ......................................................................... 273a

Appendix 4 Declaration of Jaret Gibbons, Executive Director of the Appalachian

Region Independent Power Producers Association ........................... 286a

Appendix 5 PJM “Statement of the Newly Issued EPA Greenhouse Gas and

Related Regulations,” May 8, 2024 .................................................... 386a

Appendix 6 Southwest Power Pool (SPP), “ EPA Rule Could Severely Impact

Nation’s Efforts Toward Energy Production,” May 20, 2024 ........... 390a

Appendix 7 Southwest Power Pool (SPP) “Statement on the Recent EPA

Greenhouse Gas Emissions Rule,” April 25, 2024 ............................ 394a

Appendix 8 “MISO’s Response to the Reliability Imperative,” Updated February

2024 ..................................................................................................... 397a

Appendix 9 Letter to the Honorable Michael S. Regan, Administrator, U.S.

Environmental Protection Agency from U.S. Senators Capito,

McConnell, Tillis, Marshall, Cassidy, Hagerty, Cramer, Daines,

Ricketts, Barrasso, Wicker, Tuberville, Cotton, Lummis, Ernst, Risch,

Britt, Vance, Romney, Budd, Crapo, Hyde-Smith, Blackburn, R. Scott,

Lee, Fischer, Graham, T. Scott, Moran, Sullivan, Hoeven, Lankford,

Boozman, Braun, Thune, Criz, Rubio, Young, and Mullin, August 1,

2023 ..................................................................................................... 429a

Appendix 1

001a

USGA Case #24-1 1

Document #2065493

Filed: 07/19/2024

Pagel of 3

States (Unurt nf

For The District of Columbia Circuit

No. 24-1120

September Term, 2023

EPA-89FR39798

Filed On: July 19,2024

State of West Virginia, et al.,

Petitioners

Environmental Protection Agency and

Michael S. Regan, Administrator, United

States Environmental Protection Agency,

Respondents

Louisiana Public Service Commission, et aL,

Intervenors

Consolidated with 24-1 121, 24-1 1

22,

24-1124, 24-1126, 24-1128, 24-1142,

24-1143, 24-1144, 24-1146, 24-1152,

24-1153, 24-1155, 24-1222, 24-1226,

24-1227, 24-1233

BEFORE:

Millett, Pillard, and Rao, Circuit Judges

ORDER

Upon consideration of the motions for stay, the oppositions thereto, the replies,

the Rule 28(j) letter, and the responses thereto; and the motions to participate as amici

curiae and the lodged amicus briefs, it is

ORDERED that the motions of the Chamber of Commerce, the Sierra Club, the

Environmental Defense Fund, and Professor Rachel Rothschild to participate as amici

curiae be granted. The Clerk is directed to file the lodged amicus briefs. It is

002a

USCA Case #24-1 120

Document #2065493

Filed: 07/19/2024

Page 2 of 3

States QInurt nf appeals

For The District of Columbia Circuit

No. 24-1120

September Term, 2023

FURTHER ORDERED that the motions for stay be denied. Petitioners have not

satisfied the stringent requirements for a stay pending this court’s review. See Nken v.

Holder, 556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Prac. and Internal

Procs. 33 (2021).

On the merits, petitioners dispute whether the Environmental Protection Agency

(“EPA”) acted arbitrarily or capriciously in determining that carbon capture and other

emission control technologies are adequately demonstrated, or that specific degrees of

emission mitigation are achievable with those technologies. But petitioners have not

shown they are likely to succeed on those claims given the record in this case. Nor

does this case implicate a major question under West Virginia v. EPA, 142 S. Ct. 2587

(2022), because EPA has claimed only the power to “set emissions limits under Section

111 based on the application of measures that would reduce pollution by causing the

regulated source to operate more cleanly[,]” a type of conduct that falls well within

EPA’s bailiwick, id. at 2610.

On irreparable harm, actual compliance deadlines do not commence until 2030

or 2032—years after this case will be resolved. Though the first deadline for States to

submit state implementation plans is May 2026, the only consequence of failing to

submit a state plan is the promulgation of a federal plan—which the States can replace

with their own plans later. EPA Opp., Ex. 1, Goffman Deci, fl 100. To the extent

petitioners claim harm due to the need for long-term planning, a stay will not help

because the risk remains that the distant deadlines in EPA’s rule will come back into

force at the end of the case.

EPA has suggested that this case be expedited as an alternative means of

protecting all parties’ interests. Accordingly, to ensure this case can be argued and

considered as early as possible in the court's 2024 term, it is

FURTHER ORDERED that the parties submit, within 14 days from the date of

this order, proposed formats and schedules for the briefing of these cases. The parties

are strongly urged to submit a joint proposal and are reminded that the court looks with

extreme disfavor on repetitious submissions and will, where appropriate, require a joint

brief of aligned parties with total words not to exceed the standard allotment for a single

brief. Whether the parties are aligned or have disparate interests, they must provide

detailed justifications for any request to file separate briefs or to exceed in the

Page 2

003a

USCA Case #24-1 120

Document #2065493

Filed: 07/19/2024

plmteb States

Page 3 of 3

nf appeals

For The District of Columbia Circuit

No. 24-1120

September Term, 2023

aggregate the standard word allotment. Requests to exceed the standard word

allotment must specify the word allotment necessary for each issue.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

Page 3

004a

/s/

Selena R. Gancasz

Deputy Clerk

Appendix 2

005a

39798

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 60

[EPA-HQ-OAR-2023-0072; FRL-8536-01OAR]

RIN 2060-AV09

New Source Performance Standards

for Greenhouse Gas Emissions From

New, Modified, and Reconstructed

Fossil Fuel-Fired Electric Generating

Units; Emission Guidelines for

Greenhouse Gas Emissions From

Existing Fossil Fuel-Fired Electric

Generating Units; and Repeal of the

Affordable Clean Energy Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) is finalizing multiple

actions under section 111 of the Clean

Air Act (CAA) addressing greenhouse

gas (GHG) emissions from fossil fuelfired electric generating units (EGUs).

First, the EPA is finalizing the repeal of

the Affordable Clean Energy (ACE) Rule.

Second, the EPA is finalizing emission

guidelines for GHG emissions from

existing fossil fuel-fired steam

generating EGUs, which include both

coal-fired and oil/gas-fired steam

generating EGUs. Third, the EPA is

finalizing revisions to the New Source

Performance Standards (NSPS) for GHG

emissions from new and reconstructed

fossil fuel-fired stationary combustion

turbine EGUs. Fourth, the EPA is

finalizing revisions to the NSPS for GHG

emissions from fossil fuel-fired steam

generating units that undertake a large

modification, based upon the 8-year

review required by the CAA. The EPA

is not finalizing emission guidelines for

GHG emissions from existing fossil fuelfired stationary combustion turbines at

this time; instead, the EPA intends to

take further action on the proposed

emission guidelines at a later date.

DATES: This final rule is effective on July

8, 2024. The incorporation by reference

of certain publications listed in the rules

is approved by the Director of the

Federal Register as of July 8, 2024. The

incorporation by reference of certain

other materials listed in the rule was

approved by the Director of the Federal

ADDRESSES: The EPA has established a

docket for these actions under Docket ID

No. EPA-HQ-OAR-2023-0072. All

documents in the docket are listed on

the https://www.regulations.gov

website. Although listed, some

information is not publicly available,

e.g., Confidential Business Information

(CBI) 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 through https://

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Lisa

Thompson (she/her), Sector Policies and

Programs Division (D243-02), Office of

Air Quality Planning and Standards,

U.S. Environmental Protection Agency,

109 T.W. Alexander Drive, P.O. Box

12055, Research Triangle Park, North

Carolina 27711; telephone number:

(919) 541-5158; and email address:

th ompson .lisa@epa.gov.

SUPPLEMENTARY INFORMATION:

Preamble acronyms and

abbreviations. Throughout this

document the use of “we,” “us,” or

“our” is intended to refer to the EPA.

The EPA uses multiple acronyms and

terms in this preamble. While this list

may not be exhaustive, to ease the

reading of this preamble and for

reference purposes, the EPA defines the

following terms and acronyms here:

ACE Affordable Clean Energy rule

BSER best system of emissions reduction

Btu British thermal unit

CAA Clean Air Act

CBI Confidential Business Information

CCS carbon capture and sequestration/

storage

CCUS carbon capture, utilization, and

sequestration/ storage

COz carbon dioxide

DER distributed energy resources

DOE Department of Energy

EEA energy emergency alert

EGU electric generating unit

EIA Energy Information Administration

EJ environmental justice

E.O. Executive Order

EPA Environmental Protection Agency

FEED front-end engineering and design

FGD flue gas desulfurization

FR Federal Register

GHG greenhouse gas

GW gigawatt

GWh gigawatt-hour

HAP hazardous air pollutant

HRSG heat recovery steam generator

IIJA Infrastructure investment and Jobs Act

006a

IRC Internal Revenue Code

kg kilogram

kWh kilowatt-hour

LCOE levelized cost of electricity

LNG liquefied natural gas

MATS Mercury and Air Toxics Standards

MMBtu/h million British thermal units per

hour

MMT COze million metric tons of carbon

dioxide equivalent

MW megawatt

MWh megawatt-hour

NAAQS National Ambient Air Quality

Standards

NESHAP National Emission Standards for

Hazardous Air Pollutants

NGCC natural gas combined cycle

NOx nitrogen oxides

NSPS new source performance standards

NSR New Source Review

PM particulate matter

PM2.5 fine particulate matter

RIA regulatory impact analysis

TSD technical support document

U.S. United States

Organization of this document. The

information in this preamble is

organized as follows:

I. Executive Summary

A. Climate Change and Fossil Fuel-Fired

EGUs

B. Recent Developments in Emissions

Controls and the Electric Power Sector

C. Summary of the Principal Provisions of

These Regulatory Actions

D. Grid Reliability Considerations

E. Environmental Justice Considerations

F. Energy Workers and Communities

G. Key Changes From Proposal

II. General Information

A. Action Applicability

B. Where To Get a Copy of This Document

and Other Related Information

III. Climate Change Impacts

IV. Recent Developments in Emissions

Controls and the Electric Power Sector

A. Background

B. GHG Emissions From Fossil Fuel-Fired

EGUs

C. Recent Developments in Emissions

Control

D. The Electric Power Sector: Trends and

Current Structure

E. The Legislative, Market, and State Law

Context

F. Future Projections of Power Sector

Trends

V. Statutory Background and Regulatory

History for CAA Section 111

A. Statutory Authority To Regulate GHGs

From EGUs Under CAA Section 111

B. History of EPA Regulation of

Greenhouse Gases From Electricity

Generating Units Under CAA Section

111 and Caselaw

C. Detailed Discussion of CAA Section 111

Requirements

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

VI. ACE Rule Repeal

A. Summary of Selected Features of the

ACE Rule

B. Developments Undermining ACE Rule’s

Projected Emission Reductions

C. Developments Showing That Other

Technologies Are the BSER for This

Source Category

D. Insufficiently Precise Degree of

Emission Limitation Achievable From

Application of the BSER

E. Withdrawal of Proposed NSR Revisions

VII. Regulatory Approach for Existing Fossil

Fuel-Fired Steam Generating Units

A. Overview

B. Applicability Requirements and Fossil

Fuel-Type Definitions for Subcategories

of Steam Generating Units

C. Rationale for the BSER for Coal-Fired

Steam Generating Units

D. Rationale for the BSER for Natural GasFired and Oil-Fired Steam Generating

Units

E. Additional Comments Received on the

Emission Guidelines for Existing Steam

Generating Units and Responses

F. Regulatory Requirement To Review

Emission Guidelines for Coal-Fired Units

VIII. Requirements for New and

Reconstructed Stationary Combustion

Turbine EGUs and Rationale for

Requirements

A. Overview

B. Combustion Turbine Technology

C. Overview of Regulation of Stationary

Combustion Turbines for GHGs

D. Eight-Year Review of NSPS

E. Applicability Requirements and

Subcategorization

F. Determination of the Best System of

Emission Reduction (BSER) for New and

Reconstructed Stationary Combustion

Turbines

G. Standards of Performance

H. Reconstructed Stationary Combustion

Turbines

I. Modified Stationary Combustion

Turbines

J. Startup, Shutdown, and Malfunction

K. Testing and Monitoring Requirements

L. Recordkeeping and Reporting

Requirements

M. Compliance Dates

N. Compliance Date Extension

IX. Requirements for New, Modified, and

Reconstructed Fossil Fuel-Fired Steam

Generating Units

A. 2018 NSPS Proposal Withdrawal

B. Additional Amendments

C. Eight-Year Review of NSPS for Fossil

Fuel-Fired Steam Generating Units

D. Projects Under Development

X. State Plans for Emission Guidelines for

Existing Fossil Fuel-Fired EGUs

A. Overview

B. Requirement for State Plans To Maintain

Stringency of the EPA’s BSER

Determination

C. Establishing Standards of Performance

D. Compliance Flexibilities

E. State Plan Components and Submission

XI. Implications for Other CAA Programs

A. New Source Review Program

B. Title V Program

XII. Summary of Cost, Environmental, and

Economic Impacts

A. Air Quality Impacts

B. Compliance Cost Impacts

C. Economic and Energy Impacts

D. Benefits

E. Net Benefits

F. Environmental Justice Analytical

Considerations and Stakeholder

Outreach and Engagement

G. Grid Reliability Considerations and

Reliability-Related Mechanisms

XIII. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 14094: Modernizing Regulatory

Review

B. Paperwork Reduction Act (PRA)

C. Regulatory Flexibility Act (RFA)

D. Unfunded Mandates Reform Act of 1995

(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 Populations and

Low-Income Populations

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act (NTTAA) and 1 CFR

Part 51

J. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations and Executive Order 14096:

Revitalizing Our Nation’s Commitment

to Environmental Justice for All

K. Congressional Review Act (CRA)

XIV. Statutory Authority

I. Executive Summary

In 2009, the EPA concluded that GHG

emissions endanger our nation’s public

health and welfare. 1 Since that time, the

evidence of the harms posed by GHG

emissions has only grown, and

Americans experience the destructive

and worsening effects of climate change

every day. 2 Fossil fuel-fired EGUs are

the nation’s largest stationary source of

GHG emissions, representing 25 percent

of the United States’ total GHG

emissions in 2021. 3 At the same time, a

range of cost-effective technologies and

approaches to reduce GHG emissions

from these sources is available to the

power sector— including carbon capture

and sequestration/storage (CCS), co¬

firing with less GHG-intensive fuels,

174 FR 66496 (December 15, 2009).

2The 5th National Climate Assessment (NCA5)

states that the effects of human-caused climate

change are already far-reaching and worsening

across every region of the United States and that

climate change affects all aspects of the energy

system-supply, delivery, and demand-through the

increased frequency, intensity, and duration of

extreme events and through changing climate

trends.

3https ://www. epa.gov/ghgemissions/sourcesgreenhouse-gas-emissions.

007a

39799

and more efficient generation. Congress

has also acted to provide funding and

other incentives to encourage the

deployment of various technologies,

including CCS, to achieve reductions in

GHG emissions from the power sector.

In this notice, the EPA is finalizing

several actions under section 111 of the

Clean Air Act (CAA) to reduce the

significant quantity of GHG emissions

from fossil fuel-fired EGUs by

establishing emission guidelines and

new source performance standards

(NSPS) that are based on available and

cost-effective technologies that directly

reduce GHG emissions from these

sources. Consistent with the statutory

command of CAA section 111, the final

NSPS and emission guidelines reflect

the application of the best system of

emission reduction (BSER) that, taking

into account costs, energy requirements,

and other statutory factors, is adequately

demonstrated.

Specifically, the EPA is first finalizing

the repeal of the Affordable Clean

Energy (ACE) Rule. Second, the EPA is

finalizing emission guidelines for GHG

emissions from existing fossil fuel-fired

steam generating EGUs, which include

both coal-fired and oil/gas-fired steam

generating EGUs. Third, the EPA is

finalizing revisions to the NSPS for GHG

emissions from new and reconstructed

fossil fuel-fired stationary combustion

turbine EGUs. Fourth, the EPA is

finalizing revisions to the NSPS for GHG

emissions from fossil fuel-fired steam

generating units that undertake a large

modification, based upon the 8-year

review required by the CAA. The EPA

is not finalizing emission guidelines for

GHG emissions from existing fossil fuelfired combustion turbines at this time

and plans to expeditiously issue an

additional proposal that more

comprehensively addresses GHG

emissions from this portion of the fleet.

The EPA acknowledges that the share of

GHG emissions from existing fossil fuelfired combustion turbines has been

growing and is projected to continue to

do so, particularly as emissions from

other portions of the fleet decline, and

that it is vital to regulate the GHG

emissions from these sources consistent

with CAA section 111.

These final actions ensure that the

new and existing fossil fuel-fired EGUs

that are subject to these rules reduce

their GHG emissions in a manner that is

cost-effective and improves the

emissions performance of the sources,

consistent with the applicable CAA

requirements and caselaw. These

standards and emission guidelines will

significantly decrease GHG emissions

from fossil fuel-fired EGUs and the

associated harms to human health and

39800

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

welfare. Further, the EPA has designed

these standards and emission guidelines

in a way that is compatible with the

nation’s overall need for a reliable

supply of affordable electricity.

reducing GHG emissions from these

affected sources can also help reduce

power sector pollution that might

otherwise result from the electrification

of other sectors of the economy.

A. Climate Change and Fossil Fuel-Fired

EGUs

R. Recent Developments in Emissions

Controls and the Electric Power Sector

These final actions reduce the

emissions of GHGs from new and

existing fossil fuel-fired EGUs. The

increasing concentrations of GHGs in

the atmosphere are, and have been,

warming the planet, resulting in serious

and life-threatening environmental and

human health impacts. The increased

concentrations of GHGs in the

atmosphere and the resulting warming

have led to more frequent and more

intense heat waves and extreme weather

events, rising sea levels, and retreating

snow and ice, all of which are occurring

at a pace and scale that threaten human

health and welfare.

Fossil fuel-fired EGUs that are

uncontrolled for GHGs are one of the

biggest domestic sources of GHG

emissions. At the same time, there are

technologies available (including

technologies that can be applied to

fossil fuel-fired power plants) to

significantly reduce emissions of GHGs

from the power sector. Low- and zeroGHG electricity are also key enabling

technologies to significantly reduce

GHG emissions in almost every other

sector of the economy.

In 2021, the power sector was the

largest stationary source of GHGs in the

United States, emitting 25 percent of

overall domestic emissions. 4 In 2021,

existing fossil fuel-fired steam

generating units accounted for 65

percent of the GHG emissions from the

sector, but only accounted for 23

percent of the total electricity

generation.

Because of its outsized contributions

to overall emissions, reducing emissions

from the power sector is essential to

addressing the challenge of climate

change— and sources in the power

sector also have many available options

for reducing their climate-destabilizing

emissions. Particularly relevant to these

actions are several key technologies

(CCS and co-firing of lower-GHG fuels)

that allow fossil fuel-fired steam

generating EGUs and stationary

combustion turbines to provide power

while emitting significantly lower GHG

emissions. Moreover, with the increased

electrification of other GHG-emitting

sectors of the economy, such as personal

vehicles, heavy-duty trucks, and the

heating and cooling of buildings,

Several recent developments

concerning emissions controls are

relevant for the EPA’s determination of

the BSER for existing coal-fired steam

generating EGUs and new natural gasfired stationary combustion turbines.

These include lower costs and

continued improvements in CCS

technology, alongside Federal tax

incentives that allow companies to

largely offset the cost of CCS. Wellestablished trends in the sector further

inform where using such technologies is

cost effective and feasible, and form part

of the basis for the EPA’s determination

of the BSER.

In recent years, the cost of CCS has

declined in part because of process

improvements learned from earlier

deployments and other advances in the

technology. In addition, the Inflation

Reduction Act (IRA), enacted in 2022,

extended and significantly increased the

tax credit for carbon dioxide (CO 2)

sequestration under Internal Revenue

Code (IRC) section 45Q. The provision

of tax credits in the IRA, combined with

the funding included in the

Infrastructure Investment and Jobs Act

(IIJA), enacted in 2021, incentivize and

facilitate the deployment of CCS and

other GHG emission control

technologies. As explained later in this

preamble, these developments support

the EPA’s conclusion that CCS is the

BSER for certain subcategories of new

and existing EGUs because it is an

adequately demonstrated and available

control technology that significantly

reduces emissions of dangerous

pollution and because the costs of its

installation and operation are

reasonable. Some companies have

already made plans to install CCS on

their units independent of the EPA’s

regulations.

Well documented trends in the power

sector also influence the EPA’s

determination of the BSER. In

particular, CCS entails significant

capital expenditures and is only costreasonable for units that will operate

enough to defray those capital costs. At

the same time, many utilities and power

generating companies have recently

announced plans to accelerate changing

the mix of their generating assets. The

IIJA and IRA, state legislation,

technology advancements, market

forces, consumer demand, and the

advanced age of much of the existing

4https://www. epa.gov/ghgemissions/sourcesgreenhouse-gas-emissions.

008a

fossil fuel-fired generating fleet are

collectively leading to, in most cases,

decreased use of the fossil fuel-fired

units that are the subjects of these final

actions. From 2010 through 2022, fossil

fuel-fired generation declined from

approximately 72 percent of total net

generation to approximately 60 percent,

with generation from coal-fired sources

dropping from 49 percent to 20 percent

of net generation during this period. 5

These trends are expected to continue

and are relevant to determining where

capital-intensive technologies, like CCS,

may be feasibly and cost-reasonably

deployed to reduce emissions.

Congress has taken other recent

actions to drive the reduction of GHG

emissions from the power sector. As

noted earlier, Congress enacted IRC

section 45Q in section 115 of the Energy

Improvement and Extension Act of 2008

to provide a tax credit for the

sequestration of CO 2. Congress

significantly amended IRC section 45Q

in the Bipartisan Budget Act of 2018,

and more recently in the IRA, to make

this tax incentive more generous and

effective in spurring long-term

deployment of CCS. In addition, the IIJA

provided more than $65 billion for

infrastructure investments and upgrades

for transmission capacity, pipelines, and

low-carbon fuels. 6 Further, the Creating

Helpful Incentives to Produce

Semiconductors and Science Act

(CHIPS Act) authorized billions more in

funding for development of low- and

non-GHG emitting energy technologies

that could provide additional low-cost

options for power companies to reduce

overall GHG emissions. 7 As discussed

in greater detail in section IV.E.l of this

preamble, the IRA, the IIJA, and CHIPS

contain numerous other provisions

encouraging companies to reduce their

GHGs.

C. Summary of the Principal Provisions

cf These Regulatory Actions

These final actions include the repeal

of the ACE Rule, BSER determinations

and emission guidelines for existing

fossil fuel-fired steam generating units,

and BSER determinations and

accompanying standards of performance

for GHG emissions from new and

reconstructed fossil fuel-fired stationary

combustion turbines and modified fossil

fuel-fired steam generating units.

5U.S. Energy Information Administration (EIA).

Electric Power Annual. 2010 and 2022. https://

www.eia.gov/electricity/annual/html/epa_03_01_

a.html.

6https://www.congress.gov/bill/ll 7th-congress/

house-bill/3684.

7https://www.congress.gov/bill/ll 7th-congress/

house-bill/4346.

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

The EPA is taking these actions

consistent with its authority under CAA

section 111. Under CAA section 111,

once the EPA has identified a source

category that contributes significantly to

dangerous air pollution, it proceeds to

regulate new sources and, for GHGs and

certain other air pollutants, existing

sources. The central requirement is that

the EPA must determine the “best

system of emission reduction . . .

adequately demonstrated,” taking into

account the cost of the reductions, nonair quality health and environmental

impacts, and energy requirements. 8 The

EPA may determine that different sets of

sources have different characteristics

relevant for determining the BSER and

may subcategorize sources accordingly.

Once it identifies the BSER, the EPA

must determine the “degree of emission

limitation” achievable by application of

the BSER. For new sources, the EPA

establishes the standard of performance

with which the sources must comply,

which is a standard for emissions that

reflects the degree of emission

limitation. For existing sources, the EPA

includes the information it has

developed concerning the BSER and

associated degree of emission limitation

in emission guidelines and directs the

states to adopt state plans that contain

standards of performance that are

consistent with the emission guidelines.

Since the early 1970s, the EPA has

promulgated regulations under CAA

section 111 for more than 60 source

categories, which has established a

robust set of regulatory precedents that

has informed the development of these

final actions. During this period, the

courts, primarily the U.S. Court of

Appeals for the D.C. Circuit and the

Supreme Court, have developed a body

of caselaw interpreting CAA section

111. As the Supreme Court has

recognized, the EPA has typically (and

does so in these actions) determined the

BSER to be “measures that improve the

pollution performance of individual

sources,” such as add-on controls and

clean fuels. West Virginia v. EPA, 597

U.S. 697, 734 (2022). For present

purposes, several of a BSER’s key

features include that it must reduce

emissions, be based on “adequately

demonstrated” technology, and have a

reasonable cost of control. The case law

interpreting section 111 has also

recognized that the BSER can be

forward-looking in nature and take into

account anticipated improvements in

control technologies. For example, the

EPA may determine a control to be

“adequately demonstrated” even if it is

new and not yet in widespread

8CAA section 111(a)(1).

commercial use, and, further, that the

EPA may reasonably project the

development of a control system at a

future time and establish requirements

that take effect at that time. Further, the

most relevant costs under CAA section

111 are the costs to the regulated

facility. The actions that the EPA is

finalizing are consistent with the

requirements of CAA section 111 and its

regulatory history and caselaw, which is

discussed in further detail in section V

of this preamble.

1. Repeal of ACE Rule

The EPA is finalizing its proposed

repeal of the existing ACE Rule

emission guidelines. First, as a policy

matter, the EPA concludes that the suite

of heat rate improvements (HRI) that

was identified in the ACE Rule as the

BSER is not an appropriate BSER for

existing coal-fired EGUs. Second, the

ACE Rule rejected CCS and natural gas

co-firing as the BSER for reasons that no

longer apply. Third, the EPA concludes

that the ACE Rule conflicted with CAA

section 111 and the EPA’s implementing

regulations because it did not provide

sufficient specificity as to the BSER the

EPA had identified or the “degree of

emission limitation achievable though

application of the [BSER].”

Also, the EPA is withdrawing the

proposed revisions to the New Source

Review (NSR) regulations that were

included the ACE Rule proposal (83 FR

44773-83; August 31, 2018).

2. Emission Guidelines for Existing

Fossil Fuel-Fired Steam Generating

Units

The EPA is finalizing CCS with 90

percent capture as BSER for existing

coal-fired steam generating units. These

units have a presumptive standard 9 of

an 88.4 percent reduction in annual

emission rate, with a compliance

deadline of January 1, 2032. As

explained in detail below, CCS is an

adequately demonstrated technology

that achieves significant emissions

reduction and is cost-reasonable, taking

into account the declining costs of the

technology and a substantial tax credit

available to sources. In recognition of

the significant capital expenditures

involved in deploying CCS technology

and the fact that 45 percent of regulated

units already have announced

retirement dates, the EPA is finalizing a

separate subcategory for existing coal9Presumptive standards of performance are

discussed in detail in section X of the preamble.

While states establish standards of performance for

sources, the EPA provides presumptively

approvable standards of performance based on the

degree of emission limitation achievable through

application of the BSER for each subcategory.

009a

39801

fired steam generating units that

demonstrate that they plan to

permanently cease operation before

January 1, 2039. The BSER for this

subcategory is co-firing with natural gas,

at a level of 40 percent of the unit’s

annual heat input. These units have a

presumptive standard of 16 percent

reduction in annual emission rate

corresponding to this BSER, with a

compliance deadline of January 1, 2030.

The EPA is finalizing an applicability

exemption for existing coal-fired steam

EGUs demonstrating that they plan to

permanently cease operation prior to

January 1, 2032, based on the Agency’s

determination that units retiring before

this date generally do not have costreasonable options for improving their

GHG emissions performance. Sources

that demonstrate they will permanently

cease operation before this applicability

deadline will not be subject to these

emission guidelines. Further, the EPA is

not finalizing the proposed imminentterm or near-term subcategories.

The EPA is finalizing the proposed

structure of the subcategory definitions

for natural gas- and oil-fired steam

generating units. The EPA is also

finalizing routine methods of operation

and maintenance as the BSER for

intermediate load and base load natural

gas- and oil-fired steam generating units.

Furthermore, the EPA is finalizing

presumptive standards for natural gasand oil-fired steam generating units that

are slightly higher than at proposal: base

load sources (those with annual

capacity factors greater than 45 percent)

have a presumptive standard of 1,400 lb

CO 2/MWh-gross, and intermediate load

sources (those with annual capacity

factors greater than 8 percent and less

than or equal to 45 percent) have a

presumptive standard of 1,600 lb CO 2/

MWh-gross. For low load (those with

annual capacity factors less than 8

percent), the EPA is finalizing a uniform

fuels BSER and a presumptive input¬

based standard of 170 lb CO 2/MMBtu

for oil-fired sources and a presumptive

standard of 130 lb CO 2/MMBtu for

natural gas-fired sources.

3. Standards of Performance for New

and Reconstructed Fossil Fuel-Fired

Combustion Turbines

The EPA is finalizing emission

standards for three subcategories of

combustion turbines— base load,

intermediate load, and low load. The

BSER for base load combustion turbines

includes two components to be

implemented initially in two phases.

The first component of the BSER for

base load combustion turbines is highly

efficient generation (based on the

emission rates that the best performing

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units are achieving) and the second

component for base load combustion

turbines is utilization of CCS with 90

percent capture. Recognizing the lead

time that is necessary for new base load

combustion turbines to plan for and

install the second component of the

BSER (i.e., 90 percent CCS), including

the time that is needed to deploy the

associated infrastructure (CO 2 pipelines,

storage sites, etc.), the EPA is finalizing

a second phase compliance deadline of

January 1, 2032, for this second

component of the standard.

The EPA has identified highly

efficient simple cycle generation as the

BSER for intermediate load combustion

turbines. For low load combustion

turbines, the EPA is finalizing its

proposed determination that the BSER

is the use of lower-emitting fuels.

4. New, Modified, and Reconstructed

Fossil Fuel-Fired Steam Generating

Units

The EPA is finalizing revisions of the

standards of performance for coal-fired

steam generating units that undertake a

large modification [i.e., a modification

that increases its hourly emission rate

by more than 10 percent) to mirror the

emission guidelines for existing coalfired steam generators. This reflects the

EPA’s determination that such modified

sources are capable of meeting the same

presumptive standards that the EPA is

finalizing for existing steam EGUs.

Further, this revised standard for

modified coal-fired steam EGUs will

avoid creating an unjustified disparity

between emission control obligations for

modified and existing coal-fired steam

EGUs.

The EPA did not propose, and we are

not finalizing, any review or revision of

the 2015 standard for large

modifications of oil- or gas-fired steam

generating units because we are not

aware of any existing oil- or gas-fired

steam generating EGUs that have

undertaken such modifications or have

plans to do so, and, unlike an existing

coal-fired steam generating EGUs,

existing oil- or gas-fired steam units

have no incentive to undertake such a

modification to avoid the requirements

we are including in this final rule for

existing oil- or gas-fired steam

generating units.

As discussed in the proposal

preamble, the EPA is not revising the

NSPS for newly constructed or

reconstructed fossil fuel-fired steam

electric generating units (EGU) at this

time because the EPA anticipates that

few, if any, such units will be

constructed or reconstructed in the

foreseeable future. However, the EPA

has recently become aware that a new

coal-fired power plant is under

consideration in Alaska. Accordingly,

the EPA is not, at this time, finalizing

its proposal not to review the 2015

NSPS, and, instead, will continue to

consider whether to review the 2015

NSPS. As developments warrant, the

EPA will determine either to conduct a

review, and propose revised standards

of performance, or not conduct a review.

Also, in this final action, the EPA is

withdrawing the 2018 proposed

amendments 10 to the NSPS for GHG

emissions from coal-fired EGUs.

5. Severability

This final action is composed of four

independent rules: the repeal of the

ACE rule; GHG emission guidelines for

existing fossil fuel-fired steam

generating units; NSPS for GHG

emissions from new and reconstructed

fossil fuel-fired combustion turbines;

and revisions to the standards of

performance for new, modified, and

reconstructed fossil fuel-fired steam

generating units. The EPA could have

finalized each of these rules in separate

Federal Register notices as separate

final actions. The Agency decided to

include these four independent rules in

a single Federal Register notice for

administrative ease because they all

relate to climate pollution from the

fossil fuel-fired electric generating units

source category. Accordingly, despite

grouping these rules into one single

Federal Register notice, the EPA

intends that each of these rules

described in sections I.C.l through LG. 4

is severable from the other.

In addition, each rule is severable as

a practical matter. For example, the EPA

would repeal the ACE Rule separate and

apart from finalizing new standards for

these sources as explained herein.

Moreover, the BSER and associated

emission guidelines for existing fossil

fuel-fired steam generating units are

independent of and would have been

the same regardless of whether the EPA

finalized the other parts of this rule. In

determining the BSER for existing fossil

fuel-fired steam generating units, the

EPA considered only the technologies

available to reduce GHG emissions at

those sources and did not take into

consideration the technologies or

standards of performance for new fossil

fuel-fired combustion turbines. The

same is true for the Agency’s evaluation

and determination of the BSER and

associated standards of performance for

new fossil fuel-fired combustion

turbines. The EPA identified the BSER

and established the standards of

performance by examining the controls

10 See 83 FR 65424, December 20, 2018.

010a

that were available for these units. That

analysis can stand alone and apart from

the EPA’s separate analysis for existing

fossil fuel-fired steam generating units.

Though the record evidence (including,

for example, modeling results) often

addresses the availability, performance,

and expected implementation of the

technologies at both existing fossil fuelfired steam generating units and new

fossil fuel-fired combustion turbines in

the same record documents, the

evidence for each evaluation stands on

its own, and is independently sufficient

to support each of the final BSERs.

In addition, within section I.C.l, the

final action to repeal the ACE Rule is

severable from the withdrawal of the

NSR revisions that were proposed in

parallel with the ACE Rule proposal.

Within the group of actions for existing

fossil fuel-fired steam generating units

in section I.C.2, the requirements for

each subcategory of existing sources are

severable from the requirements for

each other subcategory of existing

sources. For example, if a court were to

invalidate the BSER and associated

emission standard for units in the

medium-term subcategory, the BSER

and associated emission standard for

units in the long-term subcategory could

function sensibly because the

effectiveness of the BSER for each

subcategory is not dependent on the

effectiveness of the BSER for other

subcategories. Within the group of

actions for new and reconstructed fossil

fuel-fired combustion turbines in

section LG. 3, the following actions are

severable: the requirements for each

subcategory of new and reconstructed

turbines are severable from the

requirements for each other subcategory;

and within the subcategory for base load

turbines, the requirements for each of

the two components are severable from

the requirements for the other

component. Each of these standards can

function sensibly without the others.

For example, the BSER for low load,

intermediate load, and base load

subcategories is based on the

technologies the EPA determined met

the statutory standards for those

subcategories and are independent from

each other. And in the base load

subcategory units may practically be

constructed using the most efficient

technology without then installing CCS

and likewise may install CCS on a

turbine system that was not constructed

with the most efficient technology.

Within the group of actions for new,

modified, and reconstructed fossil fuelfired steam generating units in section

I.C.4, the revisions of the standards of

performance for coal-fired steam

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

generators that undertake a large

modification are severable from the

withdrawal of the 2018 proposal to

revise the NSPS for emissions of GHG

from EGUs. Each of the actions in these

final rules that the EPA has identified as

severable is functionally independent—

i.e., may operate in practice

independently of the other actions.

In addition, while the EPA is

finalizing this rule at the same time as

other final rules regulating different

types of pollution from EGUs—

specifically the Supplemental Effluent

Limitations Guidelines and Standards

for the Steam Electric Power Generating

Point Source Category (FR 2024-09815,

EPA—HQ—OW—2009—0819; FRL-879402-OW); National Emission Standards

for Hazardous Air Pollutants: Coal and

Oil-Fired Electric Utility Steam

Generating Units Review of the Residual

Risk and Technology Review (FR 202409148, EPA—HQ—OAR—2018—0794;

FRL-6716.3-02-OAR); Hazardous and

Solid Waste Management System:

Disposal of Coal Combustion Residuals

From Electric Utilities; Legacy CCR

Surface Impoundments (FR 202409157, EPA-HQ-OLEM-2020-0107;

FRL—7814—04—OLEM)—and has

considered the interactions between and

cumulative effects of these rules, each

rule is based on different statutory

authority, a different record, and is

completely independent of the other

rules.

D. Grid Reliability Considerations

The EPA is finalizing multiple

adjustments to the proposed rules that

ensure the requirements in these final

actions can be implemented without

compromising the ability of power

companies, grid operators, and state and

Federal energy regulators to maintain

resource adequacy and grid reliability.

In response to the May 2023 proposed

rule, the EPA received extensive

comments from balancing authorities,

independent system operators and

regional transmission organizations,

state regulators, power companies, and

other stakeholders on the need for the

final rule to accommodate resource

adequacy and grid reliability needs. The

EPA also engaged with the balancing

authorities that submitted comments to

the docket, the staff and Commissioners

of the Federal Energy Regulatory

Commission (FERC), the Department of

Energy (DOE), the North American

Electric Reliability Corporation (NERC),

and other expert entities during the

course of this rulemaking. Finally, at the

invitation of FERC, the EPA participated

in FERC’s Annual Reliability Technical

Conference on November 9, 2023.

These final actions respond to this

input and feedback in multiple ways,

including through changes to the

universe of affected sources, longer

compliance timeframes for CCS

implementation, and other compliance

flexibilities, as well as articulation of

the appropriate use of RULOF to

address reliability issues during state

plan development and in subsequent

state plan revisions. In addition to these

adjustments, the EPA is finalizing

several programmatic mechanisms

specifically designed to address

reliability concerns raised by

commenters. For existing fossil fuelfired EGUs, a short-term reliability

emergency mechanism is available for

states to provide more flexibility by

using an alternative emission limitation

during acute operational emergencies

when the grid might be temporarily

under heavy strain. A similar short-term

reliability emergency mechanism is also

available to new sources. In addition,

the EPA is creating an option for states

to provide for a compliance date

extension for existing sources of up to

1 year under certain circumstances for

sources that are installing control

technologies to comply with their

standards of performance. Lastly, states

may also provide, by inclusion in their

state plans, a reliability assurance

mechanism of up to 1 year that under

limited circumstances would allow

existing units that had planned to cease

operating by a certain date to

temporarily remain available to support

reliability. Any extensions exceeding 1

year must be addressed through a state

plan revision. In order to utilize this

reliability pathway, there must be an

adequate demonstration of need and

certification by a reliability authority,

and approval by the appropriate EPA

Regional Administrator. The EPA plans

to seek the advice of FERC for extension

requests exceeding 6 months. Similarly,

for new fossil fuel-fired combustion

turbines, the EPA is creating a

mechanism whereby baseload units may

request a 1-year extension of their CCS

compliance deadline under certain

circumstances.

The EPA has evaluated the resource

adequacy implications of these actions

in the final technical support document

(TSD), Resource Adequacy Analysis,

and conducted capacity expansion

modeling of the final rules in a manner

that takes into account resource

adequacy needs. The EPA finds that

resource adequacy can be maintained

with the final rules. The EPA modeled

a scenario that complies with the final

rules and that meets resource adequacy

needs. The EPA also performed a variety

011a

39803

of other sensitivity analyses looking at

higher electricity demand (load growth)

and impact of the EPA’s additional

regulatory actions affecting the power

sector. These sensitivity analyses

indicate that, in the context of higher

demand and other pending power sector

rules, the industry has available

pathways to comply with this rule that

respect NERC reliability considerations

and constraints.

In addition, the EPA notes that

significant planning and regulatory

mechanisms exist to ensure that

sufficient generation resources are

available to maintain reliability. The

EPA’s consideration of reliability in this

rulemaking has also been informed by

consultation with the DOE under the

auspices of the March 9, 2023,

memorandum of understanding

(MOU) 11 signed by the EPA

Administrator and the Secretary of

Energy, as well as by consultation with

FERC expert staff. In these final actions,

the EPA has included various

flexibilities that allow power companies

and grid operators to plan for achieving

feasible and necessary reductions of

GHGs from affected sources consistent

with the EPA’s statutory charge while

ensuring that the rule will not interfere

with systems operators’ ability to ensure

grid reliability.

A thorough description of how

adjustments in the final rules address

reliability issues, the EPA’s outreach to

balancing authorities, EPA’s

supplemental notice, as well as the

introduction of mechanisms to address

short- and long-term reliability needs is

presented in section XII.F of this

preamble.

E. Environmental Justice Considerations

Consistent with Executive Order

(E.O.) 14096, and the EPA’s

commitment to upholding

environmental justice (EJ) across its

policies and programs, the EPA

carefully considered the impacts of

these actions on communities with

environmental justice concerns. As part

of the regulatory development process

for these rulemakings, and consistent

with directives set forth in multiple

Executive Orders, the EPA conducted

extensive outreach with interested

parties including Tribal nations and

communities with environmental justice

concerns. These opportunities gave the

EPA a chance to hear directly from the

public, including from communities

potentially impacted by these final

11 Joint Memorandum cf Understanding on

Interagency Communication and Consultation on

Electric Reliability (March 9, 2023), https://

www.epa.gov/power-sector/electric-reliability-mou.

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Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

actions. The EPA took this feedback into

account in its development of these

final actions. 12 The EPA’s analysis of

environmental justice in these final

actions is briefly summarized here and

discussed in further detail in sections

XII. E and XIII.J of the preamble and

section 6 of the regulatory impact

analysis (RIA).

Several environmental justice

organizations and community

representatives raised significant

concerns about the potential health,

environmental, and safety impacts of

CCS. The EPA takes these concerns

seriously, agrees that any impacts to

historically disadvantaged and

overburdened communities are

important to consider, and has carefully

considered these concerns as it finalized

its determinations of the BSERs for

these rules. The Agency acknowledges

that while these final actions will result

in large reductions of both GHGs and

other emissions that will have

significant positive benefits, there is the

potential for localized increases in

emissions, particularly if units installing

CCS operate for more hours during the

year and/or for more years than they

would have otherwise. However, as

discussed in section VII.C.l.a.iii(B), a

robust regulatory framework exists to

reduce the risks of localized emissions

increases in a manner that is protective

of public health, safety, and the

environment. The Council on

Environmental Quality’s (CEQ) February

2022 Carbon Capture, Utilization, and

Sequestration Guidance and the EPA’s

evaluation of BSER recognize that

multiple Federal agencies have

responsibility for regulating and

permitting CCS projects, along with

state and tribal governments. As the

CEQ has noted, Federal agencies have

“taken actions in the past decade to

develop a robust carbon capture,

utilization, and sequestration/storage

(CCUS) regulatory framework to protect

the environment and public health

across multiple statutes.” 13 14

12 Specifically, the EPA has relied on, and is

incorporating as a basis for this rulemaking,

analyses regarding possible adverse environmental

effects from CCS, including those highlighted by

commenters. Consideration of these effects is

permissible under CAA section 111(a)(1). Although

the EPA also conducted analyses of

disproportionate impacts pursuant to E.O. 14096,

see section XII.E, the EPA did not consider or rely

on these analyses as a basis for these rules.

13 87 FR 8808, 8809 (February 16, 2022).

14 This framework includes, among other things,

the EPA regulation of geologic sequestration wells

under the Underground Injection Control (UIC)

program of the Safe Drinking Water Act; required

reporting and public disclosure of geologic

sequestration activity, as well as implementation of

rigorous monitoring, reporting, and verification of

geologic sequestration under the EPA’s Greenhouse

Furthermore, the EPA plans to review

and update as needed its guidance on

NSR permitting, specifically with

respect to BACT determinations for

GHG emissions and consideration of co¬

pollutant increases from sources

installing CCS. For the reasons

explained in section VII. C, the EPA is

finalizing the determination that CCS is

the BSER for certain subcategories of

new and existing EGUs based on its

consideration of all of the statutory

criteria for BSER, including emission

reductions, cost, energy requirements,

and non-air health and environmental

considerations. At the same time, the

EPA recognizes the critical importance

of ensuring that the regulatory

framework performs as intended to

protect communities.

These actions are focused on

establishing NSPS and emission

guidelines for GHGs that states will

implement to significantly reduce GHGs

and move us a step closer to avoiding

the worst impacts of climate change,

which is already having a

disproportionate impact on

communities with environmental justice

concerns. The EPA analyzed several

illustrative scenarios representing

potential compliance outcomes and

evaluated the potential impacts that

these actions may have on emissions of

GHG and other health-harming air

pollutants from fossil fuel-fired EGUs,

as well as how these changes in

emissions might affect air quality and

public health, particularly for

communities with EJ concerns.

The EPA’s national-level analysis of

emission reduction and public health

impacts, which is documented in

section 6 of the RIA and summarized in

greater detail in section XII. A and XII. D

of this preamble, finds that these actions

achieve nationwide reductions in EGU

emissions of multiple health-harming

air pollutants including nitrogen oxides

(NO X ), sulfur dioxide (SO 2), and fine

particulate matter (PM2.5), resulting in

public health benefits. The EPA also

evaluated how the air quality impacts

associated with these final actions are

distributed, with particular focus on

communities with EJ concerns. As

discussed in the RIA, our analysis

indicates that baseline ozone and PM2.5

concentration will decline substantially

relative to today’s levels. Relative to

these low baseline levels, ozone and

PM2.5 concentrations will decrease

further in virtually all areas of the

country, although some areas of the

Gas Reporting Program (GHGRP); and safety

regulations for CO2 pipelines administered by the

Pipeline and Hazardous Materials and Safety

Administration (PHMSA).

012a

country may experience slower or faster

rates of decline in ozone and PM2.5

pollution over time due to the changes

in generation and utilization resulting

from these rules. Additionally, our

comparison of future air quality

conditions with and without these rules

suggests that while these actions are

anticipated to lead to modest but

widespread reductions in ambient levels

of PM2.5 and ozone for a large majority

of the nation’s population, there is

potential for some geographic areas and

demographic groups to experience small

increases in ozone concentrations

relative to the baseline levels which are

projected to be substantially lower than

today’s levels.

It is important to recognize that while

these projections of emissions changes

and resulting air quality changes under

various illustrative compliance

scenarios are based upon the best

information available to the EPA at this

time, with regard to existing sources,

each state will ultimately be responsible

for determining the future operation of

fossil fuel-fired steam generating units

located within its jurisdiction. The EPA

expects that, in making these

determinations, states will consider a

number of factors and weigh input from

the wide range of potentially affected

stakeholders. The meaningful

engagement requirements discussed in

section X.E.l.b.i of this preamble will

ensure that all interested stakeholders—

including community members

adversely impacted by pollution, energy

workers affected by construction and/or

other changes in operation at fossil-fuelfired power plants, consumers and other

interested parties— will have an

opportunity to have their concerns

heard as states make decisions

balancing a multitude of factors

including appropriate standards of

performance, compliance strategies, and

compliance flexibilities for existing

EGUs, as well as public health and

environmental considerations. The EPA

believes that these provisions, together

with the protections referenced above,

can reduce the risks of localized

emissions increases in a manner that is

protective of public health, safety, and

the environment.

F. Energy Workers and Communities

These final actions include

requirements for meaningful

engagement in development of state

plans, including with energy workers

and communities. These communities,

including energy workers employed at

affected EGUs, workers who may

construct and install pollution control

technology, workers employed by fuel

extraction and delivery, organizations

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

representing these workers, and

communities living near affected EGUs,

are impacted by power sector trends on

an ongoing basis and by these final

actions, and the EPA expects that states

will include these stakeholders as part

of their constructive engagement under

the requirements in this rule.

The EPA consulted with the Federal

Interagency Working Group on Coal and

Power Plant Communities and

Economic Revitalization (Energy

Communities IWG) in development of

these rules and the meaningful

engagement requirements. The EPA

notes that the Energy Communities IWG

has provided resources to help energy

communities access the expanded

federal resources made available by the

Bipartisan Infrastructure Law, CHIPS

and Science Act, and Inflation

Reduction Act, many of which are

relevant to the development of state

plans.

G. Key Changes From Proposal

The key changes from proposal in

these final actions are: (1) the reduction

in number of subcategories for existing

coal-fired steam generating units, (2) the

extension of the compliance date for

existing coal-fired steam generating

units to meet a standard of performance

based on implementation of CCS, (3) the

removal of low-GHG hydrogen co-firing

as a BSER pathway, and (4) the addition

of two reliability-related instruments. In

addition, (5), the EPA is not finalizing

proposed requirements for existing

fossil fuel-fired stationary combustion

turbines at this time.

The reduction in number of

subcategories for existing coal-fired

steam generating units: The EPA

proposed four subcategories for existing

coal-fired steam generating units, which

would have distinguished these units by

operating horizon and by load level.

These included subcategories for

existing coal-fired EGUs planning to

cease operations in the imminent-term

(i.e., prior to January 1, 2032) and those

planning to cease operations in the nearterm (i.e., prior to January 1, 2035).

While commenters were generally

supportive of the proposed

subcategorization approach, some

requested that the cease-operation-by

date for the imminent-term subcategory

be extended and the utilization limit for

the near-term subcategory be relaxed.

The EPA is not finalizing the imminentterm and near-term subcategories of

coal-fired steam generating units.

Rather, the EPA is finalizing an

applicability exemption for coal-fired

steam generating units demonstrating

that they plan to permanently cease

operation before January 1, 2032. See

section VII.B of this preamble for further

discussion.

The extension of the compliance date

for existing coal-fired steam generating

units to meet a standard of peiformance

based on implementation of CCS. The

EPA proposed a compliance date for

implementation of CCS for long-term

coal-fired steam generating units of

January 1, 2030. The EPA received

comments asserting that this deadline

did not provide adequate lead time. In

consideration of those comments, and

the record as a whole, the EPA is

finalizing a CCS compliance date of

January 1, 2032 for these sources.

The removal of low-GHG hydrogen co¬

firing as a BSER pathway and only use

of low-GHG hydrogen as a compliance

option: The EPA is not finalizing its

proposed BSER pathway of low-GHG

hydrogen co-firing for new and

reconstructed base load and

intermediate load combustion turbines

in accordance with CAA section

111(a)(1). The EPA is also not finalizing

its proposed requirement that only lowGHG hydrogen may be co-fired in a

combustion turbine for the purpose of

compliance with the standards of

performance. These decisions are based

on uncertainties identified for specific

criteria used to evaluate low-GHG

hydrogen co-firing as a potential BSER,

and after further analysis in response to

public comments, the EPA has

determined that these uncertainties

prevent the EPA from concluding that

low-GHG hydrogen co-firing is a

component of the “best” system of

emission reduction at this time. Under

CAA section 111, the EPA establishes

standards of performance but does not

mandate use of any particular

technology to meet those standards.

Therefore, certain sources may elect to

co-fire hydrogen for compliance with

the final standards of performance, even

absent the technology being a BSER

pathway. 15 See section VIII.F.5 of this

preamble for further discussion.

15 The EPA is not placing qualifications on the

type of hydrogen a source may elect to co-fire at this

time (see section VIII.F. 6.a of this preamble for

further discussion). The Agency continues to

recognize that even though the combustion of

hydrogen is zero-GHG emitting, its production can

entail a range of GHG emissions, from low to high,

depending on the production method. Thus, even

though the EPA is not finalizing the low-GHG

hydrogen co-firing as a BSER, as proposed, it

maintains that the overall GHG profile of a

particular method of hydrogen production should

be a primary consideration for any source that

decides to co-fire hydrogen to ensure that overall

GHG reductions and important climate benefits are

achieved. The EPA also notes the anticipated final

rule from the U.S. Department of the Treasury

pertaining to clean hydrogen production tax and

energy credits, which in its proposed form contains

certain eligibility parameters, as well as programs

013a

39805

The addition of two reliability-related

instruments: Commenters expressed

concerns that these rules, in

combination with other factors, may

affect the reliability of the bulk power

system. In response to these comments

the EPA engaged extensively with

balancing authorities, power companies,

reliability experts, and regulatory

authorities responsible for reliability to

inform its decisions in these final rules.

As described later in this preamble, the

EPA has made adjustments in these

final rules that will support power

companies, grid operators, and states in

maintaining the reliability of the electric

grid during the implementation of these

final rules. In addition, the EPA has

undertaken an analysis of the reliability

and resource adequacy implications of

these final rules that supports the

Agency’s conclusion that these final

rules can be implemented without

adverse consequences for grid

reliability. Further, the EPA is finalizing

two reliability-related instruments as an

additional layer of safeguards for

reliability. These instruments include a

reliability mechanism for short-term

emergency issues, and a reliability

assurance mechanism, or compliance

flexibility, for units that have chosen

compliance pathways with enforceable

retirement dates, provided there is a

documented and verified reliability

concern. In addition, the EPA is

finalizing compliance extensions for

unanticipated delays with control

technology implementation.

Specifically, as described in greater

detail in section XII. F of this preamble,

the EPA is finalizing the following

features and changes from the proposal

that will provide even greater certainty

that these final rules are sensitive to

reliability-related issues and

constructed in a manner that does not

interfere with grid operators’

responsibility to deliver reliable power:

(1) longer compliance timelines for

existing coal-fired steam generating

units;

(2) a mechanism to extend

compliance timelines by up to 1 year in

the case of unforeseen circumstances,

outside of an owner/operator’s control,

that delay the ability to apply controls

(e.g., supply chain challenges or

permitting delays);

(3) transparent unit-specific

compliance information for EGUs that

will allow grid operators to plan for

system changes with greater certainty

and precision;

(4) a short-term reliability mechanism

to allow affected EGUs to operate at

administered by the U.S. Department of Energy,

such as the recent H2Hubs selections.

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Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

baseline emission rates during

documented reliability emergencies;

and

(5) a reliability assurance mechanism

to allow states to delay cease operation

dates by up to 1 year in cases where the

planned cease operation date is forecast

to disrupt system reliability.

Not finalizing proposed requirements

for existing fossil fuel-fired stationary

combustion turbines at this time: The

EPA proposed emission guidelines for

large (i.e., greater than 300 MW),

frequently operated (i.e., with an annual

capacity factor of greater than 50

percent), existing fossil fuel-fired

stationary combustion turbines. The

EPA received a wide range of comments

on the proposed guidelines. Multiple

commenters suggested that the proposed

provisions would largely result in

shifting of generation away from the

most efficient natural gas-fired turbines

to less efficient natural gas-fired

turbines. Commenters stated that, as

emissions from coal-fired steam

generating units decreased, existing

natural gas-fired EGUs were poised to

become the largest source of GHG

emissions in the power sector.

Commenters noted that these units play

an important role in grid reliability,

particularly as aging coal-fired EGUs

retire. Commenters further noted that

the existing fossil fuel-fired stationary

combustion turbines that were not

covered by the proposal (i.e., the smaller

and less frequently operating units) are

often less efficient, less well controlled

for other pollutants such as NO X , and

are more likely to be located near

population centers and communities

with environmental justice concerns.

The EPA agrees with commenters

who observed that GHG emissions from

existing natural gas-fired stationary

combustion turbines are a growing

portion of the emissions from the power

sector. This is consistent with EPA

modeling that shows that by 2030 these

units will represent the largest portion

of GHG emissions from the power

sector. The EPA agrees that it is vital to

promulgate emission guidelines to

address GHG emissions from these

sources, and that the EPA has a

responsibility to do so under section

111(d) of the Clean Air Act. The EPA

also agrees with commenters who noted

that focusing only on the largest and

most frequently operating units, without

also addressing emissions from other

units, as the May 2023 proposed rule

provided, may not be the most effective

way to address emissions from this

sector. The EPA’s modeling shows that

over time as the power sector comes

closer to reaching the phase-out

threshold of the clean electricity

incentives in the Inflation Reduction

Act (IRA) (i.e., a 75 percent reduction in

emissions from the power sector from

2022 levels), the average capacity factor

for existing natural gas-fired stationary

combustion turbines decreases.

Therefore, the EPA’s proposal to focus

only on the largest units with the

highest capacity factors may not be the

most effective policy design for

reducing GHG emissions from these

sources.

Recognizing the importance of

reducing emissions from all fossil fuelfired EGUs, the EPA is not finalizing the

proposed emission guidelines for

certain existing fossil fuel-fired

stationary combustion turbines at this

time. Instead, the EPA intends to issue

a new, more comprehensive proposal to

regulate GHGs from existing sources.

The new proposal will focus on

achieving greater emission reductions

from existing stationary combustion

turbines— which will soon be the largest

stationary sources of GHG emissions—

while taking into account other factors

including the local non-GHG impacts of

gas turbine generation and the need for

reliable, affordable electricity.

II. General Information

A. Action Applicability

The source category that is the subject

of these actions is composed of fossil

fuel-fired electric utility generating

units. The North American Industry

Classification System (NAICS) codes for

the source category are 221112 and

921150. The list of categories and

NAICS codes is not intended to be

exhaustive, but rather provides a guide

for readers regarding the entities that

these final actions are likely to affect.

Final amendments to 40 CFR part 60,

subpart TTTT, are directly applicable to

affected facilities that began

construction after January 8, 2014, but

before May 23, 2023, and affected

facilities that began reconstruction or

modification after June 18, 2014, but

before May 23, 2023. The NSPS codified

in 40 CFR part 60, subpart TTTTa, is

directly applicable to affected facilities

that begin construction, reconstruction,

or modification on or after May 23,

2023. Federal, state, local, and tribal

government entities that own and/or

operate EGUs subject to 40 CFR part 60,

subpart TTTT or TTTTa, are affected by

these amendments and standards.

The emission guidelines codified in

40 CFR part 60, subpart UUUUb, are for

states to follow in developing,

submitting, and implementing state

plans to establish performance

standards to reduce emissions of GHGs

from designated facilities that are

014a

existing sources. Section 111(a)(6) of the

CAA defines an “existing source” as

“any stationary source other than a new

source.” Therefore, the emission

guidelines would not apply to any EGUs

that are new after January 8, 2014, or

reconstructed after June 18, 2014, the

applicability dates of 40 CFR part 60,

subpart TTTT. Under the Tribal

Authority Rule (TAR), eligible tribes

may seek approval to implement a plan

under CAA section 111(d) in a manner

similar to a state. See 40 CFR part 49,

subpart A. Tribes may, but are not

required to, seek approval for treatment

in a manner similar to a state for

purposes of developing a tribal

implementation plan (TIP)

implementing the emission guidelines

codified in 40 CFR part 60, subpart

UUUUb. The TAR authorizes tribes to

develop and implement their own air

quality programs, or portions thereof,

under the CAA. However, it does not

require tribes to develop a CAA

program. Tribes may implement

programs that are most relevant to their

air quality needs. If a tribe does not seek

and obtain the authority from the EPA

to establish a TIP, the EPA has the

authority to establish a Federal CAA

section 111(d) plan for designated

facilities that are located in areas of

Indian country. 16 A Federal plan would

apply to all designated facilities located

in the areas of Indian country covered

by the Federal plan unless and until the

EPA approves a TIP applicable to those

facilities.

R. Where To Get a Copy of This

Document and Other Related

Information

In addition to being available in the

docket, an electronic copy of these final

rulemakings is available on the internet

at https .7/

ww. epa.gov/station arysources-air-pollution/greenhouse-gasstandards-and-guidelines-fossil-fuelfired-power. Following signature by the

EPA Administrator, the EPA will post a

copy of these final rulemakings at this

same website. Following publication in

the Federal Register, the EPA will post

the Federal Register version of the final

rules and key technical documents at

this same website.

C. Judicial Review and Administrative

Review

Under CAA section 307(b)(1), judicial

review of these final actions is available

only by filing a petition for review in

16 See the EPA’s website, https://www.epa.gov/

tribal/tribes-approved-treatment-state-tas, for

information on those tribes that have treatment as

a state for specific environmental regulatory

programs, administrative functions, and grant

programs.

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

the United States Court of Appeals for

the District of Columbia Circuit by July

8, 2024. These final actions are

“standard[s] of performance or

requirement[s] under section 111,” and,

in addition, are “nationally applicable

regulations promulgated, or final action

taken, by the Administrator under [the

CAA],” CAA section 307(b)(1). 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 “[o]nly 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.” This

section also provides a mechanism for

the EPA to convene a proceeding for

reconsideration, “ [i]f the person raising

an objection can demonstrate to the EPA

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 to

us should submit a Petition for

Reconsideration to the Office of the

Administrator, U.S. Environmental

Protection Agency, Room 3000, WJC

West 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.

Environmental Protection Agency, 1200

Pennsylvania Ave. NW, Washington, DC

20460.

III. Climate Change Impacts

Elevated concentrations of GHGs have

been warming the planet, leading to

changes in the Earth’s climate that are

occurring at a pace and in a way that

threatens human health, society, and the

natural environment. While the EPA is

not making any new scientific or factual

findings with regard to the welldocumented impact of GHG emissions

on public health and welfare in support

of these rules, the EPA is providing in

this section a brief scientific background

on climate change to offer additional

context for these rulemakings and to

help the public understand the

environmental impacts of GHGs.

Extensive information on climate

change is available in the scientific

assessments and the EPA documents

that are briefly described in this section,

as well as in the technical and scientific

information supporting them. One of

those documents is the EPA’s 2009

“Endangerment and Cause or Contribute

Findings for Greenhouse Gases Under

Section 202(a) of the CAA” (74 FR

66496, December 15, 2009) (“2009

Endangerment Finding”). In the 2009

Endangerment Finding, the

Administrator found under section

202(a) of the CAA that elevated

atmospheric concentrations of six key

well -mixed GHGs— CO 2, methane (CH4),

nitrous oxide (N 2O), HFCs,

perfluorocarbons (PFCs), and sulfur

hexafluoride (SF 6)

— “may reasonably be

anticipated to endanger the public

health and welfare of current and future

generations” (74 FR 66523, December

15, 2009). The 2009 Endangerment

Finding, together with the extensive

scientific and technical evidence in the

supporting record, documented that

climate change caused by human

emissions of GHGs threatens the public

health of the U.S. population. It

explained that by raising average

temperatures, climate change increases

the likelihood of heat waves, which are

associated with increased deaths and

illnesses (74 FR 66497, December 15,

2009). While climate change also

increases the likelihood of reductions in

cold-related mortality, evidence

indicates that the increases in heat

mortality will be larger than the

decreases in cold mortality in the U.S.

(74 FR 66525, December 15, 2009). The

2009 Endangerment Finding further

explained that compared with a future

without climate change, climate change

is expected to increase tropospheric

ozone pollution over broad areas of the

U.S., including in the largest

metropolitan areas with the worst

tropospheric ozone problems, and

thereby increase the risk of adverse

effects on public health (74 FR 66525,

December 15, 2009). Climate change is

also expected to cause more intense

hurricanes and more frequent and

intense storms of other types and heavy

precipitation, with impacts on other

areas of public health, such as the

potential for increased deaths, injuries,

infectious and waterborne diseases, and

stress-related disorders (74 FR 66525

December 15, 2009). Children, the

elderly, and the poor are among the

most vulnerable to these climate-related

health effects (74 FR 66498, December

15, 2009).

The 2009 Endangerment Finding also

documented, together with the

extensive scientific and technical

evidence in the supporting record, that

015a

39807

climate change touches nearly every

aspect of public welfare 17 in the U.S.,

including the following: changes in

water supply and quality due to changes

in drought and extreme rainfall events;

increased risk of storm surge and

flooding in coastal areas and land loss

due to inundation; increases in peak

electricity demand and risks to

electricity infrastructure; and the

potential for significant agricultural

disruptions and crop failures (though

offset to some extent by carbon

fertilization). These impacts are also

global and may exacerbate problems

outside the U.S. that raise humanitarian,

trade, and national security issues for

the U.S. (74 FR 66530, December 15,

2009).

In 2016, the Administrator issued a

similar finding for GHG emissions from

aircraft under section 231(a)(2)(A) of the

CAA. 18 In the 2016 Endangerment

Finding, the Administrator found that

the body of scientific evidence amassed

in the record for the 2009 Endangerment

Finding compellingly supported a

similar endangerment finding under

CAA section 231(a)(2)(A) and also found

that the science assessments released

between the 2009 and 2016 Findings

“strengthen and further support the

judgment that GHGs in the atmosphere

may reasonably be anticipated to

endanger the public health and welfare

of current and future generations” (81

FR 54424, August 15, 2016).

Since the 2016 Endangerment

Finding, the climate has continued to

change, with new observational records

being set for several climate indicators

such as global average surface

temperatures, GHG concentrations, and

sea level rise. Additionally, major

scientific assessments continue to be

released that further advance our

understanding of the climate system and

the impacts that GHGs have on public

health and welfare for both current and

future generations. These updated

observations and projections document

the rapid rate of current and future

17 The CAA states in section 302(h) that “

[a]ll

language referring to effects on welfare includes,

but is not limited to, effects on soils, water, crops,

vegetation, manmade materials, animals, wildlife,

weather, visibility, and climate, damage to and

deterioration of property, and hazards to

transportation, as well as effects on economic

values and on personal comfort and well-being,

whether caused by transformation, conversion, or

combination with other air pollutants.” 42 U.S.C.

7602(h).

18 Finding That Greenhouse Gas Emissions From

Aircraft Cause or Contribute to Air Pollution That

May Reasonably Be Anticipated To Endanger Public

Health and Welfare. 81 FR 54422, August 15, 2016

(“2016 Endangerment Finding”).

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climate change both globally and in the

U.S. 19 20 21 22 23 24 25 26 27 28 29 30 31

19 USGCRP, 2017: Climate Science Special

Report: Fourth National Climate Assessment,

Volume I [Wuebbles, D.J., D.W. Fahey, K.A.

Hibbard, D.J. Dokken, B.C. Stewart, and T.K.

Maycock (eds.)]. U.S. Global Change Research

Program, Washington, DC, USA, 470 pp, doi:

10.7930/J0J964J6.

20 USGCRP, 2016: The Impacts cf Climate Change

on Human Health in the United States: A Scientific

Assessment. Crimmins, A., J. Balbus, J.L. Gamble,

C.B. Beard, J.E. Bell, D. Dodgen, R.J. Eisen, N. Fann,

M.D. Hawkins, S.C. Herring, L. Jantarasami, D.M.

Mills, S. Saha, M.C.

21 USGCRP, 2018: Impacts, Risks, and Adaptation

in the United States: Fourth National Climate

Assessment, Volume II [Reidmiller, D.R., C.W.

Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis,

T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global

Change Research Program, Washington, DC, USA,

1515 pp. doi:10.7930/NCA4.2018.

22 IPCC, 2018: Global Warming cf 1.5 °C. An IPCC

Special Report on the impacts of global warming of

1.5 °C above pre-industrial levels and related global

greenhouse gas emission pathways, in the context

of strengthening the global response to the threat of

climate change, sustainable development, and

efforts to eradicate poverty [Masson-Delmotte, V., P.

Zhai, H.-O. Portner, D. Roberts, J. Skea, P.R. Shukla,

A. Pirani, W. Moufouma-Okia, C. Pean, R. Pidcock,

S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I.

Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T.

Waterfield (eds.)].

23 IPCC, 2019: Climate Change and Land: an IPCC

special report on climate change, desertification,

land degradation, sustainable land management,

food security, and greenhouse gas fluxes in

terrestrial ecosystems [P.R. Shukla, J. Skea, E. Calvo

Buendia, V. Masson-Delmotte, H.-O. Portner, D.C.

Roberts, P. Zhai, R. Slade, S. Connors, R. van

Diemen, M. Ferrat, E. Haughey, S. Luz, S. Neogi, M.

Pathak, J. Petzold, J. Portugal Pereira, P. Vyas, E.

Huntley, K. Kissick, M. Belkacemi, J. Malley, (eds.)].

24 IPCC, 2019: IPCC Special Report on the Ocean

and Cryosphere in a Changing Climate [H.-O.

Portner, D.C. Roberts, V. Masson-Delmotte, P. Zhai,

M. Tignor, E. Poloczanska, K. Mintenbeck, A.

Alegriia, M. Nicolai, A. Okem, J. Petzold, B. Rama,

N.M. Weyer (eds.)].

25 National Academies of Sciences, Engineering,

and Medicine. 2016. Attribution cf Extreme

Weather Events in the Context cf Climate Change.

Washington, DC: The National Academies Press.

https://dio.org/10.17226/21 852.

26 National Academies of Sciences, Engineering,

and Medicine. 2017. Valuing Climate Damages:

Updating Estimation cfthe Social Cost cf Carbon

Dioxide. Washington, DC: The National Academies

Press, https://doi.org/10.17226/24651.

27 National Academies of Sciences, Engineering,

and Medicine. 2019. Climate Change and

Ecosystems. Washington, DC: The National

Academies Press, https://doi.org/10.17226/25504.

28 Blunden, J. and T. Boyer, Eds., 2022: “State of

the Climate in 2021.” Bull. Amer. Meteor. Soc., 103

(8), Si—S465, https://doi.org/10.1175/

2022BAMS S ta tec f

th e Clim ate.l.

29 U.S. Environmental Protection Agency. 2021.

Climate Change and Social Vulnerability in the

United States: A Focus on Six Impacts. EPA 430R—21—003.

30 Jay, A.K., A.R. Crimmins, C.W. Avery, T.A.

Dahl, R.S. Dodder, B.D. Hamlington, A. Lustig, K.

Marvel, P.A. Mendez-Lazaro, M.S. Osler, A.

Terando, E.S. Weeks, and A. Zycherman, 2023: Ch.

1. Overview: Understanding risks, impacts, and

responses. In: Fifth National Climate Assessment.

Crimmins, A.R., C.W. Avery, D.R. Easterling, K.E.

Kunkel, B.C. Stewart, and T.K. Maycock, Eds. U.S.

Global Change Research Program, Washington, DC,

USA. https://doi.org/10.7930/NCA5.2023.CHl.

The most recent information

demonstrates that the climate is

continuing to change in response to the

human-induced buildup of GHGs in the

atmosphere. These recent assessments

show that atmospheric concentrations of

GHGs have risen to a level that has no

precedent in human history and that

they continue to climb, primarily

because of both historical and current

anthropogenic emissions, and that these

elevated concentrations endanger our

health by affecting our food and water

sources, the air we breathe, the weather

we experience, and our interactions

with the natural and built

environments. For example,

atmospheric concentrations of one of

these GHGs, CO 2, measured at Mauna

Loa in Hawaii and at other sites around

the world reached 419 parts per million

(ppm) in 2022 (nearly 50 percent higher

than preindustrial levels) 32 and have

continued to rise at a rapid rate. Global

average temperature has increased by

about 1.1 °C (2.0 °F) in the 2011-2020

decade relative to 185 0-1900. 33 The

years 2015-2021 were the warmest 7

years in the 1880-2021 record,

contributing to the warmest decade on

record with a decadal temperature of

0.82 °C (1.48 °F) above the 20th

century. 3435 The Intergovernmental

Panel on Climate Change (IPCC)

determined (with medium confidence)

that this past decade was warmer than

any multi-century period in at least the

past 100,000 years. 36 Global average sea

level has risen by about 8 inches (about

21 centimeters (cm)) from 1901 to 2018,

with the rate from 2006 to 2018 (0.15

inches/year or 3.7 millimeters (mm)/

year) almost twice the rate over the 1971

to 2006 period, and three times the rate

31 IPCC, 2023: Summary for Policymakers. In:

Climate Change 2023: Synthesis Report.

Contribution of Working Groups I, II and III to the

Sixth Assessment Report of the Intergovernmental

Panel on Climate Change [Core Writing Team, H.

Lee and J. Romero (eds.)].

32 https://gml.noaa.gov/webdata/ccgg/trends/co2/

co2_annmean_mlo.txt.

33 IPCC, 2021: Summary for Policymakers. In:

Climate Change 2021: The Physical Science Basis.

Contribution of Working Group I to the Sixth

Assessment Report of the Intergovernmental Panel

on Climate Change [Masson-Delmotte, V., P. Zhai,

A. Pirani, S.L. Connors, C. Pean, S. Berger, N. Gaud,

Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K.

Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock,

T. Waterfield, O. Yelek^i, R. Yu, and B. Zhou

(eds.)]. Cambridge University Press, Cambridge,

United Kingdom and New York, NY, USA, pp. 332, doi:10. 1017/9781009157896. 001.

34 NOAA National Centers for Environmental

Information, State of the Climate 2021 retrieved on

August 3, 2023, from https://www.ncei.noaa.gov/

bams-state-cf-climate.

35 Blunden, J. and T. Boyer, Eds., 2022: “State of

the Climate in 2021.” Bull. Amer. Meteor. Soc., 103

(8), Si—S465, https://doi.org/10.1175/

2022BAMS S ta te cfth e Cli mat el.

36 IPCC, 2021.

016a

of the 1901 to 2018 period. 37 The rate

of sea level rise over the 20th century

was higher than in any other century in

at least the last 2,800 years. 38 Higher

CO 2 concentrations have led to

acidification of the surface ocean in

recent decades to an extent unusual in

the past 65 million years, with negative

impacts on marine organisms that use

calcium carbonate to build shells or

skeletons. 39 Arctic sea ice extent

continues to decline in all months of the

year; the most rapid reductions occur in

September (very likely almost a 13

percent decrease per decade between

1979 and 2018) and are unprecedented

in at least 1,000 years. 40 Humaninduced climate change has led to

heatwaves and heavy precipitation

becoming more frequent and more

intense, along with increases in

agricultural and ecological droughts 41

in many regions. 42

The assessment literature

demonstrates that modest additional

amounts of warming may lead to a

climate different from anything humans

have ever experienced. The 2022 CO 2

concentration of 419 ppm is already

higher than at any time in the last 2

million years. 43 If concentrations exceed

450 ppm, they would likely be higher

than any time in the past 23 million

years: 44 at the current rate of increase of

more than 2 ppm per year, this would

occur in about 15 years. While GHGs are

not the only factor that controls climate,

it is illustrative that 3 million years ago

(the last time CO 2 concentrations were

above 400 ppm) Greenland was not yet

completely covered by ice and still

supported forests, while 23 million

years ago (the last time concentrations

were above 450 ppm) the West Antarctic

ice sheet was not yet developed,

indicating the possibility that high GHG

concentrations could lead to a world

that looks very different from today and

from the conditions in which human

civilization has developed. If the

Greenland and Antarctic ice sheets were

37 IPCC, 2021.

38 USGCRP, 2018: Impacts, Bisks, and Adaptation

in the United States: Fourth National Climate

Assessment, Volume II [Reidmiller, D.R., C.W.

Avery, D.R. Easterling, K.E. Kunkel, K.L.M. Lewis,

T.K. Maycock, and B.C. Stewart (eds.)]. U.S. Global

Change Research Program, Washington, DC, USA,

1515 pp. doi:10.7930/NCA4.2018.

39 IPCC, 2018.

40 IPCC, 2021.

41 These are drought measures based on soil

moisture.

42 IPCC, 2021.

43 Annual Mauna Loa CO2 concentration data

from https://gml.noaa.gov/webdata/ccgg/trends/

co2Zco2_annmean_mlo.txt, accessed September 9,

2023.

44 IPCC, 2013.

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

to melt substantially, sea levels would

rise dramatically.

The NCA4 found that it is very likely

(greater than 90 percent likelihood) that

by mid-century, the Arctic Ocean will

be almost entirely free of sea ice by late

summer for the first time in about 2

million years. 45 Coral reefs will be at

risk for almost complete (99 percent)

losses with 1 °C (1.8 °F) of additional

warming from today (2 °C or 3.6 °F since

preindustrial). At this temperature,

between 8 and 18 percent of animal,

plant, and insect species could lose over

half of the geographic area with suitable

climate for their survival, and 7 to 10

percent of rangeland livestock would be

projected to be lost. 46 The IPCC

similarly found that climate change has

caused substantial damages and

increasingly irreversible losses in

terrestrial, freshwater, and coastal and

open ocean marine ecosystems.

Every additional increment of

temperature comes with consequences.

For example, the half degree of warming

from 1.5 to 2 °C (0.9 °F of warming from

2.7 °F to 3.6 °F) above preindustrial

temperatures is projected on a global

scale to expose 420 million more people

to frequent extreme heatwaves at least

every five years, and 62 million more

people to frequent exceptional

heatwaves at least every five years

(where heatwaves are defined based on

a heat wave magnitude index which

takes into account duration and

intensity— using this index, the 2003

French heat wave that led to almost

15,000 deaths would be classified as an

“extreme heatwave” and the 2010

Russian heatwave which led to

thousands of deaths and extensive

wildfires would be classified as

“exceptional”). It would increase the

frequency of sea-ice-free Arctic

summers from once in 100 years to once

in a decade. It could lead to 4 inches of

additional sea level rise by the end of

the century, exposing an additional 10

million people to risks of inundation as

well as increasing the probability of

triggering instabilities in either the

Greenland or Antarctic ice sheets.

Between half a million and a million

additional square miles of permafrost

would thaw over several centuries.

Risks to food security would increase

from medium to high for several lowerincome regions in the Sahel, southern

Africa, the Mediterranean, central

Europe, and the Amazon. In addition to

food security issues, this temperature

increase would have implications for

human health in terms of increasing

ozone concentrations, heatwaves, and

45 USGCRP, 2018.

46 IPCC, 2018.

vector-borne diseases (for example,

expanding the range of the mosquitoes

which carry dengue fever, chikungunya,

yellow fever, and the Zika virus or the

ticks which carry Lyme, babesiosis, or

Rocky Mountain Spotted Fever). 47

Moreover, every additional increment in

warming leads to larger changes in

extremes, including the potential for

events unprecedented in the

observational record. Every additional

degree will intensify extreme

precipitation events by about 7 percent.

The peak winds of the most intense

tropical cyclones (hurricanes) are

projected to increase with warming. In

addition to a higher intensity, the IPCC

found that precipitation and frequency

of rapid intensification of these storms

has already increased, the movement

speed has decreased, and elevated sea

levels have increased coastal flooding,

all of which make these tropical

cyclones more damaging. 48

The NCA4 also evaluated a number of

impacts specific to the U.S. Severe

drought and outbreaks of insects like the

mountain pine beetle have killed

hundreds of millions of trees in the

western U.S. Wildfires have burned

more than 3.7 million acres in 14 of the

17 years between 2000 and 2016, and

Federal wildfire suppression costs were

about a billion dollars annually. 49 The

National Interagency Fire Center has

documented U.S. wildfires since 1983,

and the 10 years with the largest acreage

burned have all occurred since 2004. 50

Wildfire smoke degrades air quality,

increasing health risks, and more

frequent and severe wildfires due to

climate change would further diminish

air quality, increase incidences of

respiratory illness, impair visibility, and

disrupt outdoor activities, sometimes

thousands of miles from the location of

the fire. Meanwhile, sea level rise has

amplified coastal flooding and erosion

impacts, requiring the installation of

costly pump stations, flooding streets,

and increasing storm surge damages.

Tens of billions of dollars of U.S. real

estate could be below sea level by 2050

under some scenarios. Increased

frequency and duration of drought will

reduce agricultural productivity in some

regions, accelerate depletion of water

supplies for irrigation, and expand the

distribution and incidence of pests and

diseases for crops and livestock. The

NCA4 also recognized that climate

change can increase risks to national

47 IPCC, 2018.

48 IPCC, 2021.

49 USGCRP, 2018.

50 NIFC (National Interagency Fire Center). 2021.

Total wildland fires and acres (1983-2020).

Accessed August 2021. https://www.nifc.gov/

fireinfo/fireInfo_stats_totalFires.html.

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39809

security, both through direct impacts on

military infrastructure and by affecting

factors such as food and water

availability that can exacerbate conflict

outside U.S. borders. Droughts, floods,

storm surges, wildfires, and other

extreme events stress nations and

people through loss of life,

displacement of populations, and

impacts on livelihoods. 51 The NCA5

further reinforces the science showing

that climate change will have many

impacts on the U.S., as described above

in the preamble. Particularly relevant

for these rules, the NCA5 states that

climate change affects all aspects of the

energy system-supply, delivery, and

demand-through the increased

frequency, intensity, and duration of

extreme events and through changing

climate trends.” 52

EPA modeling efforts can further

illustrate how these impacts from

climate change may be experienced

across the U.S. EPA’s Framework for

Evaluating Damages and Impacts

(FrEDI) 53 uses information from over 30

peer-reviewed climate change impact

studies to project the physical and

economic impacts of climate change to

the U.S. resulting from future

temperature changes. These impacts are

projected for specific regions within the

U.S. and for more than 20 impact

categories, which span a large number

of sectors of the U.S. economy. 54 Using

51 USGCRP, 2018.

52 Jay, A.K., A.R. Crimmins, C.W. Avery, T.A.

Dahl, R.S. Dodder, B.D. Hamlington, A. Lustig, K.

Marvel, P.A. Mendez-Lazaro, M.S, Osler, A,

Terando, E.S. Weeks, and A, Zycherman, 2023: Ch,

1. Overview: Understanding risks, impacts, and

responses. In: Fifth National Climate Assessment.

Crimmins, A.R., C.W. Avery, D.R. Easterling, K.E.

Kunkel, B.C. Stewart, and T.K. Maycock, Eds. U.S.

Global Change Research Program, Washington, DC,

USA. https://doi.org/10.7930/NCA5.2023.CHl.

53 (1) Hartin, C., ef al. (2023). Advancing the

estimation of future climate impacts within the

United States. Earth Syst. Dynam., 14, 1015-1037,

https://doi.org/10.5194/esd-14-1015-2023. (2)

Supplementary Material for the Regulatory Impact

Analysis for the Final Rulemaking, Standards cf

Performance for New, Reconstructed, and Modified

Sources and Emissions Guidelines for Existing

Sources: Oil and Natural Gas Sector Climate

Review, “Report on the Social Cost of Greenhouse

Gases: Estimates Incorporating Recent Scientific

Advances,” Docket ID No. EPA-HQ-OAR-20210317, November 2023, (3) The Long-Term Strategy

cfthe United States: Pathways to Net-Zero

Greenhouse Gas Emissions by 2050. Published by

the U.S. Department of State and the U.S. Executive

Office of the President, Washington DC. November

2021, (4) Climate Risk Exposure: An Assessment cf

the Federal Government's Financial Risks to

Climate Change, White Paper, Office of

Management and Budget, April 2022.

54 EPA (2021). Technical Documentation on the

Framework for Evaluating Damages and Impacts

(FrEDI). U.S. Environmental Protection Agency,

EPA 430-R-21-004, https://www.epa.gov/cira/

fredi. Documentation has been subject to both a

public review comment period and an independent

Continued

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Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

this framework, the EPA estimates that

global emission projections, with no

additional mitigation, will result in

significant climate-related damages to

the U.S. 55 These damages to the U.S.

would mainly be from increases in lives

lost due to increases in temperatures, as

well as impacts to human health from

increases in climate-driven changes in

air quality, dust and wildfire smoke

exposure, and incidence of suicide.

Additional major climate-related

damages would occur to U.S.

infrastructure such as roads and rail, as

well as transportation impacts and

coastal flooding from sea level rise,

increases in property damage from

tropical cyclones, and reductions in

labor hours worked in outdoor settings

and buildings without air conditioning.

These impacts are also projected to vary

from region to region with the

Southeast, for example, projected to see

some of the largest damages from sea

level rise, the West Coast projected to

experience damages from wildfire

smoke more than other parts of the

country, and the Northern Plains states

projected to see a higher proportion of

damages to rail and road infrastructure.

While information on the distribution of

climate impacts helps to better

understand the ways in which climate

change may impact the U.S., recent

analyses are still only a partial

assessment of climate impacts relevant

to U.S. interests and in addition do not

reflect increased damages that occur due

to interactions between different sectors

impacted by climate change or all the

ways in which physical impacts of

climate change occurring abroad have

spillover effects in different regions of

the U.S.

Some GHGs also have impacts beyond

those mediated through climate change.

For example, elevated concentrations of

CO 2 stimulate plant growth (which can

be positive in the case of beneficial

species, but negative in terms of weeds

and invasive species, and can also lead

to a reduction in plant

micronutrients 5B ) and cause ocean

acidification. Nitrous oxide depletes the

levels of protective stratospheric

expert peer review, following EPA peer-review

guidelines.

55 Compared to a world with no additional

warming after the model baseline (1986-2005).

56 Ziska, L., A. Crimmins, A. Auclair, S. DeGrasse,

J.F. Garofalo, A.S. Khan, I. Loladze, A.A. Perez de

Leon, A. Showier, J. Thurston, and I. Walls, 2016:

Ch. 7: Food Safety, Nutrition, and Distribution. The

Impacts cf Climate Change on Human Health in the

United States: A Scientific Assessment. U.S. Global

Change Research Program, Washington, DC, 189216. https://health2016.globalchange.gov/low/

ClimateHealth2016_07_Food_small.paf.

ozone. 57 Methane reacts to form

tropospheric ozone.

feasibly and cost-effectively deploy

these technologies.

Section XII. E of this preamble

discusses the impacts of GHG emissions

on individuals living in socially and

economically vulnerable communities.

While the EPA did not conduct

modeling to specifically quantify

changes in climate impacts resulting

from these rules in terms of avoided

temperature change or sea-level rise, the

Agency did quantify climate benefits by

monetizing the emission reductions

through the application of the social

cost of greenhouse gases (SC-GHGs), as

described in section XII. D of this

preamble.

A. Background

These scientific assessments, the EPA

analyses, and documented observed

changes in the climate of the planet and

of the U.S. present clear support

regarding the current and future dangers

of climate change and the importance of

GHG emissions mitigation.

IV. Recent Developments in Emissions

Controls and the Electric Power Sector

In this section, we discuss

background information about the

electric power sector and controls

available to limit GHG pollution from

the fossil fuel-fired power plants

regulated by these final rules, and then

discuss several recent developments

that are relevant for determining the

BSER for these sources. After giving

some general background, we first

discuss CCS and explain that its costs

have fallen significantly. Lower costs

are central for the EPA’s determination

that CCS is the BSER for certain existing

coal-fired steam generating units and

certain new natural gas-fired

combustion turbines. Second, we

discuss natural gas co-firing for coalfired steam generating units and explain

recent reductions in cost for this

approach as well as its widespread

availability and current and potential

deployment within this subcategory.

Third, we discuss highly efficient

generation as a BSER technology for

new and reconstructed simple cycle and

combined cycle combustion turbine

EGUs. The emission reductions

achieved by highly efficient turbines are

well demonstrated in the power sector,

and along with operational and

maintenance best practices, represent a

cost-effective technology that reduces

fuel consumption. Finally, we discuss

key developments in the electric power

sector that influence which units can

57 WMO (World Meteorological Organization),

Scientific Assessment cf Ozone Depletion: 2018,

Global Ozone Research and Monitoring Project—

Report No. 58, 588 pp., Geneva, Switzerland, 2018.

018a

1. Electric Power Sector

Electricity in the U.S. is generated by

a range of technologies, and different

EGUs play different roles in providing

reliable and affordable electricity. For

example, certain EGUs generate base

load power, which is the portion of

electricity loads that are continually

present and typically operate

throughout all hours of the year.

Intermediate EGUs often provide

complementary generation to balance

variable supply and demand resources.

Low load “peaking units” provide

capacity during hours of the highest

daily, weekly, or seasonal net demand,

and while these resources have low

levels of utilization on an annual basis,

they play important roles in providing

generation to meet short-term demand

and often must be available to quickly

increase or decrease their output.

Furthermore, many of these EGUs also

play important roles ensuring the

reliability of the electric grid, including

facilitating the regulation of frequency

and voltage, providing “black start”

capability in the event the grid must be

repowered after a widespread outage,

and providing reserve generating

capacity 58 in the event of unexpected

changes in the availability of other

generators.

In general, the EGUs with the lowest

operating costs are dispatched first, and,

as a result, an inefficient EGU with high

fuel costs will typically only operate if

other lower-cost plants are unavailable

or are insufficient to meet demand.

Units are also unavailable during both

routine and unanticipated outages,

which typically become more frequent

as power plants age. These factors result

in the mix of available generating

capacity types (e.g., the share of

capacity of each type of generating

source) being substantially different

than the mix of the share of total

electricity produced by each type of

generating source in a given season or

year.

58 Generation and capacity are commonly

reported statistics with key distinctions. Generation

is the production of electricity and is a measure of

an EGU’s actual output while capacity is a measure

of the maximum potential production of an EGU

under certain conditions. There are several methods

to calculate an EGU’s capacity, which are suited for

different applications of the statistic. Capacity is

typically measured in megawatts (MW) for

individual units or gigawatts (1 GW = 1,000 MW)

for multiple EGUs. Generation is often measured in

kilowatt-hours (1 kWh = 1,000 watt-hours),

megawatt-hours (1 MWh = 1,000 kWh), gigawatt¬

hours (1 GWh = 1 million kWh), or terawatt-hours

(1 TWh = 1 billion kWh).

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

Generated electricity must be

transmitted over networks 59 of high

voltage lines to substations where power

is stepped down to a lower voltage for

local distribution. Within each of these

transmission networks, there are

multiple areas where the operation of

power plants is monitored and

controlled by regional organizations to

ensure that electricity generation and

load are kept in balance. In some areas,

the operation of the transmission system

is under the control of a single regional

operator; 60 in others, individual

utilities 61 coordinate the operations of

their generation and transmission to

balance the system across their

respective service territories.

2. Types of EGUs

There are many types of EGUs

including fossil fuel-fired power plants

(i.e., those using coal, oil, and natural

gas), nuclear power plants, renewable

generating sources (such as wind and

solar) and others. This rule focuses on

the fossil fuel-fired portion of the

generating fleet that is responsible for

the vast majority of GHG emissions from

the power sector. The definition of fossil

fuel-fired electric utility steam

generating units includes utility boilers

as well as those that use gasification

technology (i.e., integrated gasification

combined cycle (IGCC) units). While

coal is the most common fuel for fossil

fuel-fired utility boilers, natural gas can

also be used as a fuel in these EGUs and

many existing coal- and oil-fired utility

boilers have refueled as natural gas-fired

utility boilers. An IGCC unit gasifies

fuel— typically coal or petroleum coke—

to form a synthetic gas (or syngas)

composed of carbon monoxide (CO) and

hydrogen (H 2), which can be combusted

in a combined cycle system to generate

power. The heat created by these

technologies produces high-pressure

steam that is released to rotate turbines,

which, in turn, spin an electric

generator.

59 The three network interconnections are the

Western Interconnection, comprising the western

parts of the U.S. and Canada, the Eastern

Interconnection, comprising the eastern parts of the

U.S. and Canada except parts of Eastern Canada in

the Quebec Interconnection, and the Texas

Interconnection, encompassing the portion of the

Texas electricity system commonly known as the

Electric Reliability Council of Texas (ERGOT). See

map of all NERC interconnections at https://

www.nerc.com/AboutNERC/keyplayers/Publishing

Images/NERC%20Interconnections.paf.

60 For example, PJM Interconnection, LLC, New

York Independent System Operator (NYISO),

Midwest Independent System Operator (MISO),

California Independent System Operator (CAISO),

etc.

61 For example, Los Angeles Department of Power

and Water, Florida Power and Light, etc.

Stationary combustion turbine EGUs

(most commonly natural gas-fired) use

one of two configurations: combined

cycle or simple cycle turbines.

Combined cycle units have two

generating components (i.e., two cycles)

operating from a single source of heat.

Combined cycle units first generate

power from a combustion turbine (i.e.,

the combustion cycle) directly from the

heat of burning natural gas or other fuel.

The second cycle reuses the waste heat

from the combustion turbine engine,

which is routed to a heat recovery steam

generator (HRSG) that generates steam,

which is then used to produce

additional power using a steam turbine

(i.e., the steam cycle). Combining these

generation cycles increases the overall

efficiency of the system. Combined

cycle units that fire mostly natural gas

are commonly referred to as natural gas

combined cycle (NGCC) units, and, with

greater efficiency, are utilized at higher

capacity factors to provide base load or

intermediate load power. An EGU’s

capacity factor indicates a power plant’s

electricity output as a percentage of its

total generation capacity. Simple cycle

turbines only use a combustion turbine

to produce electricity (i.e., there is no

heat recovery or steam cycle). These

less-efficient combustion turbines are

generally utilized at non-base load

capacity factors and contribute to

reliable operations of the grid during

periods of peak demand or provide

flexibility to support increased

generation from variable energy

sources. 62

Other generating sources produce

electricity by harnessing kinetic energy

from flowing water, wind, or tides,

thermal energy from geothermal wells,

or solar energy primarily through

photovoltaic solar arrays. Spurred by a

combination of declining costs,

consumer preferences, and government

policies, the capacity of these renewable

technologies is growing, and when

considered with existing nuclear energy,

accounted for 40 percent of the overall

62 Non-dispatchable renewable energy (electrical

output cannot be used at any given time to meet

fluctuating demand) is both variable and

intermittent and is often referred to as intermittent

renewable energy. The variability aspect results

from predictable changes in electric generation (e.g.,

solar not generating electricity at night) that often

occur on longer time periods. The intermittent

aspect of renewable energy results from

inconsistent generation due to unpredictable

external factors outside the control of the owner/

operator (e.g., imperfect local weather forecasts)

that often occur on shorter time periods. Since

renewable energy fluctuates over multiple time

periods, grid operators are required to adjust

forecast and real time operating procedures. As

more renewable energy is added to the electric grid

and generation forecasts improve, the intermittency

of renewable energy is reduced.

019a

39811

net electricity supply in 2022. Many

projections show this share growing

over time. For example, the EPA’s

Power Sector Platform 2023 using IPM

(i.e., the EPA’s baseline projections of

the power sector) projects zero-emitting

sources reaching 76 percent of

electricity generation by 2040. This shift

is driven by multiple factors. These

factors include changes in the relative

economics of generating technologies,

the efforts by states to reduce GHG

emissions, utility and other corporate

commitments, and customer preference.

The shift is further promoted by

provisions of Federal legislation, most

notably the Clean Electricity Investment

and Production tax credits included in

IRC sections 48E and 45Y of the IRA,

which do not begin to phase out until

the later of 2032 or when power sector

GHG emissions are 75 percent less than

2022 levels. (See section IV. F of this

preamble and the accompanying RIA for

additional discussion of projections for

the power sector.) These projections are

consistent with power company

announcements. For example, as the

Edison Electric Institute (EEI) stated in

pre-proposal public comments

submitted to the regulatory docket:

“Fifty EEI members have announced

forward-looking carbon reduction goals,

two-thirds of which include a net-zero

by 2050 or earlier equivalent goal, and

members are routinely increasing the

ambition or speed of their goals or

altogether transforming them into netzero goals .... EEI’s member

companies see a clear path to continued

emissions reductions over the next

decade using current technologies,

including nuclear power, natural gas¬

based generation, energy demand

efficiency, energy storage, and

deployment of new renewable energy—

especially wind and solar— as older

coal-based and less-efficient natural gas¬

based generating units retire.” 63 The

Energy Strategy Coalition similarly said

in public comments that “ [a]s major

electrical utilities and power producers,

our top priority is providing clean,

affordable, and reliable energy to our

customers” and are “seeking to

advance” technologies “such as a

carbon capture and storage, which can

significantly reduce carbon dioxide

63 Edison Electric Institute (EEI). (November 18,

2022). Clean Air Act Section 111 Standards and the

Power Sector: Considerations and Options for

Setting Standards and Providing Compliance

Flexibility to Units and States. Public comments

submitted to the EPA’s pre-proposal rulemaking,

Document ID No. EPA-HQ-OAR-2022-0723-0024.

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Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

emissions from fossil fuel-fired

EGUs.” 64

B. GHG Emissions From Fossil FuelFired EGUs

The principal GHGs that accumulate

in the Earth’s atmosphere above pre¬

industrial levels because of human

activity are CO 2, CH 4, N2O, HFCs, PFCs,

and SF 6. Of these, CO 2 is the most

abundant, accounting for 80 percent of

all GHGs present in the atmosphere.

This abundance of CO 2 is largely due to

the combustion of fossil fuels by the

transportation, electricity, and

industrial sectors. 65

The amount of CO 2 produced when a

fossil fuel is burned in an EGU is a

function of the carbon content of the

fuel relative to the size and efficiency of

the EGU. Different fuels emit different

amounts of CO 2 in relation to the energy

they produce when combusted. The

heat content, or the amount of energy

produced when a fuel is burned, is

mainly determined by the carbon and

hydrogen content of the fuel. For

example, in terms of pounds of CO 2

emitted per million British thermal

units of energy produced when

combusted, natural gas is the lowest

compared to other fossil fuels at 117 lb

CO 2/MMBtu. 6667 The average for coal is

216 lb CO 2/MMBtu, but varies between

206 to 229 lb CO 2/MMBtu by type (e.g.,

anthracite, lignite, subbituminous, and

bituminous). 68 The value for petroleum

products such as diesel fuel and heating

oil is 161 lb CO 2/MMBtu.

The EPA prepares the official U.S.

Inventory of Greenhouse Gas Emissions

64 Energy Strategy Coalition Comments on EPA’s

proposed New Source Performance Standards for

Greenhouse Gas Emissions From New, Modified,

and Reconstructed Fossil Fuel-Fired Electric

Generating Units; Emission Guidelines for

Greenhouse Gas Emissions From Existing Fossil

Fuel-Fired Electric Generating Units; and Repeal of

the Affordable Clean Energy Rule, Document ID No.

EPA—HQ—OAR—2023—0072—0672, August 14, 2023.

65 U.S. Environmental Protection Agency (EPA).

Overview of greenhouse gas emissions. July 2021.

https://www.epa.gov/ghgemissions/overviewgreenhouse-gases#carbon-dioxide.

66 Natural gas is primarily CH4, which has a

higher hydrogen to carbon atomic ratio, relative to

other fuels, and thus, produces the least CO2 per

unit of heat released. In addition to a lower CO2

emission rate on a Ib/MMBtu basis, natural gas is

generally converted to electricity more efficiently

than coal. According to EIA, the 2020 emissions

rate for coal and natural gas were 2.23 lb CO2/kWh

and 0.91 lb CCVkWh, respectively, www.eia.gov/

tools/faqs/faq.php?id= 74&t= 11

67 Values reflect the carbon content on a per unit

of energy produced on a higher heating value (HHV)

combustion basis and are not reflective of recovered

useful energy from any particular technology.

68 Energy Information Administration (EIA).

Carbon Dioxide Emissions Coefficients. https://

www.eia.gov/environment/emissions/co2_vol_

mass.php.

and Sinks 69 (the U.S. GHG Inventory) to

comply with commitments under the

United Nations Framework Convention

on Climate Change (UNFCCC). This

inventory, which includes recent trends,

is organized by industrial sectors. It

presents total U.S. anthropogenic

emissions and sinks 70 of GHGs,

including CO 2 emissions since 1990.

According to the latest inventory of all

sectors, in 2021, total U.S. GHG

emissions were 6,340 million metric

tons of CO 2 equivalent (MMT CO 2e). 71

The transportation sector (28.5 percent),

which includes approximately 300

million vehicles, was the largest

contributor to total U.S. GHG emissions

with 1,804 MMT CO 2e followed by the

power sector (25.0 percent) with 1,584

MMT CO 2e. In fact, GHG emissions from

the power sector were higher than the

GHG emissions from all other industrial

sectors combined (1,487 MMT CO 2e).

Specifically, the power sector’s

emissions were far more than petroleum

and natural gas systems 72 at 301 MMT

CO 2e; chemicals (71 MMT CO 2e);

minerals (64 MMT CO 2e); coal mining

(53 MMT CO 2e); and metals (48 MMT

CO 2e). The agriculture (636 MMT CO 2e),

commercial (439 MMT CO 2e), and

residential (366 MMT CO 2e) sectors

combined to emit 1,441 MMT CO 2e.

Fossil fuel-fired EGUs are by far the

largest stationary source emitters of

GHGs in the nation. For example,

according to the EPA’s Greenhouse Gas

Reporting Program (GHGRP), of the top

100 large facilities that reported facility¬

level GHGs in 2022, 85 were fossil fuelfired power plants while 10 were

refineries and/or chemical plants, four

were metals facilities, and one was a

petroleum and natural gas systems

facility. 73 Of the 85 fossil fuel-fired

power plants, 81 were primarily coal69 U.S. Environmental Protection Agency (EPA).

Inventory cf U.S. Greenhouse Gas Emissions and

Sinks: 1990-2021. https://www.epa.gov/

ghgemissions/inventory-us-greenhouse-gasemissions-and-sinks-1990-2021 .

70 Sinks are a physical unit or process that stores

GHGs, such as forests or underground or deep-sea

reservoirs of carbon dioxide.

71 U.S. Environmental Protection Agency (EPA).

Inventory cf U.S. Greenhouse Gas Emissions and

Sinks: 1990-2021. https://www.epa.gov/

ghgemissions/inventory-us-greenhouse-gasemissions-and-sinks.

72 Petroleum and natural gas systems include:

offshore and onshore petroleum and natural gas

production; onshore petroleum and natural gas

gathering and boosting; natural gas processing;

natural gas transmission/compression; onshore

natural gas transmission pipelines; natural gas local

distribution companies; underground natural gas

storage; liquified natural gas storage; liquified

natural gas import/export equipment; and other

petroleum and natural gas systems.

73 U.S. Environmental Protection Agency (EPA).

Greenhouse Gas Reporting Program. Facility Level

Information on Greenhouse Gases Tool (FLIGHT).

https://ghgdata.epa.gOv/ghgp/main.do#.

020a

fired, including the top 41 emitters of

CO 2. In addition, of the 81 coal-fired

plants, 43 have no retirement planned

prior to 2039. The top 10 of these plants

combined to emit more than 135 MMT

of CO 2e, with the top emitter (James H.

Miller power plant in Alabama)

reporting approximately 22 MMT of

CO 2e with each of its four EGUs

emitting between 5 MMT and 6 MMT

CO 2e that year. The combined capacity

of these 10 plants is more than 23

gigawatts (GW), and all except for the

Monroe (Michigan) plant operated at

annual capacity factors of 50 percent or

higher. 74 For comparison, the largest

GHG emitter in the U.S. that is not a

fossil fuel-fired power plant is the

ExxonMobil refinery and chemical plant

in Baytown, Texas, which reported 12.6

MMT CO 2e (No. 6 overall in the nation)

to the GHGRP in 2022. The largest

metals facility in terms of GHG

emissions was the U.S. Steel facility in

Gary, Indiana, with 10.4 MMT CO 2e

(No. 16 overall in the nation).

Overall, CO 2 emissions from the

power sector have declined by 36

percent since 2005 (when the power

sector reached annual emissions of

2,400 MMT CO 2, its historical peak to

date). 75 The reduction in CO 2 emissions

can be attributed to the power sector’s

ongoing trend away from carbon¬

intensive coal-fired generation and

toward more natural gas-fired and

renewable sources. In 2005, CO 2

emissions from coal-fired EGUs alone

measured 1,983 MMT. 76 This total

dropped to 1,351 MMT in 2015 and

reached 974 MMT in 2019, the first time

since 1978 that CO 2 emissions from

coal-fired EGUs were below 1,000 MMT.

In 2020, emissions of CO 2 from coalfired EGUs measured 788 MMT as the

result of pandemic-related closures and

reduced utilization before rebounding in

2021 to 909 MMT. By contrast, CO 2

emissions from natural gas-fired

generation have almost doubled since

2005, increasing from 319 MMT to 613

MMT in 2021, and CO 2 emissions from

petroleum products (i.e., distillate fuel

oil, petroleum coke, and residual fuel

oil) declined from 98 MMT in 2005 to

18 MMT in 2021.

74 U.S. Energy Information Administration (EIA).

Preliminary Monthly Electric Generator Inventory,

Form EIA-860M, November 2023. https://

www.eia.gov/electricity/data/eia860m/.

75 U.S. Environmental Protection Agency (EPA).

Inventory cf U.S. Greenhouse Gas Emissions and

Sinks: 1990-2020. https://cfpub.epa.gov/ghgdata/

inventoiyexplorer/#electricitygeneration/

entiresector/allgas/category/all.

76 U.S. Energy Information Administration (EIA).

Monthly Energy Review, table 11.6. September

2022. https://www.eia.gov/totalenergy/data/

monthly/paf/secl 1 .pof.

Federal Register/ Vol. 89, No. 91 /Thursday, May 9, 2024 /Rules and Regulations

When the EPA finalized the Clean

Power Plan (CPP) in October 2015, the

Agency projected that, as a result of the

CPP, the power sector would reduce its

annual CO 2 emissions to 1,632 MMT by

2030, or 32 percent below 2005 levels

(2,400 MMT). 77 Instead, even in the

absence of Federal regulations for

existing EGUs, annual CO 2 emissions

from sources covered by the CPP had

fallen to 1,540 MMT by the end of 2021,

a nearly 36 percent reduction below

2005 levels. The power sector achieved

a deeper level of reductions than

forecast under the CPP and

approximately a decade ahead of time.

By the end of 2015, several months after

the CPP was finalized, those sources

already had achieved CO 2 emission

levels of 1,900 MMT, or approximately

21 percent below 2005 levels. However,

progress in emission reductions is not

uniform across all states and is not

guaranteed to continue, therefore

Federal policies play an essential role.

As discussed earlier in this section, the

power sector remains a leading emitter

of CO 2 in the U.S., and, despite the

emission reductions since 2005, current

CO 2 levels continue to endanger human

health and welfare. Further, as sources

in other sectors of the economy turn to

electrification to decarbonize, future

CO 2 reductions from fossil fuel-fired

EGUs have the potential to take on

added significance and increased

benefits.

C. Recent Developments in Emissions

Control

This section of the preamble describes

recent developments in GHG emissions

control in general. Details of those

controls in the context of BSER

determination are provided in section

VB.C.l.a for CCS on coal-fired steam

generating units, section VII.C.2.a for

natural gas co-firing on coal-fired steam

generating units, section VIII. F. 2. b for

efficient generation on natural gas-fired

combustion turbines, and section

VIII.F.4.c.iv for CCS on natural gas-fired

combustion turbines. Further details of

the control technologies are available in

the final TSDs, GHG Mitigation

Measures for Steam Generating Units

and GHG Mitigation Measures— CCS for

Combustion Turbines, available in the

docket for these actions.

1. CCS

One of the key GHG reduction

technologies upon which the BSER

determinations are founded in these

final rules is CCS— a technology that

can capture and permanently store CO 2

from fossil fuel-fired EGUs. CCS has

77 80 FR 63662 (October 23, 2015).

three major components: CO 2 capture,

transportation, and sequestration/

storage. Solvent-based CO 2 capture was

patented nearly 100 years ago in the

1930s 78 and has been used in a variety

of industrial applications for decades.

Thousands of miles of CO 2 pipelines

have been constructed and securely

operated in the U.S. for decades. 79 And

tens of millions of tons of CO 2 have

been permanently stored deep

underground either for geologic

sequestration or in association with

enhanced oil recovery (EOR). 80 The

American Petroleum Institute (API)

explains that “CCS is a proven

technology” and that “ [t]he methods

that apply to [the] carbon sequestration

process are not novel. The U.S. has

more than 40 years of CO 2 gas injection

and storage experience. During the last

40 years the U.S. gas and oil industry’s

(EOR) enhanced oil recovery operations)

have injected more than 1 billion tonnes

ofCO 2.” 8182

In 2009, Mike Morris, then-CEO of

American Electric Power (AEP), was

interviewed by Reuters and the article

noted that Morris’s “companies’ work in

West Virginia on [CCS] gave [Morris]

more insight than skeptics who doubt

the technology.” In that interview,

Morris explained, “I’m convinced it will

be primetime ready by 2015 and

deployable.” 83 In 2011, Alstom Power,

the company that developed the 30 MW

pilot project upon which Morris had

78 Bottoms, R.R. Process for Separating Acidic

Gases (1930) United States patent application.

United States Patent US1783901A; Allen, A.S. and

Arthur, M. Method of Separating Carbon Dioxide

from a Gas Mixture (1933) United States Patent

Application. United States Patent US1934472A.

79 U.S. Department of Transportation, Pipeline

and Hazardous Material Safety Administration,

“Hazardous Annual Liquid Data.” 2022. https://

www.phmsa.dot.gov/data-and-statistics/pipeline/

gas-distribution-gas-gathering-gas-transmissionhazardous-liquids.

80 GHGRP US EPA. https://www.epa.gov/

ghgreporting/supply-underground-injection-andgeologic-sequestration-carbon-dioxide.

81 American Petroleum Institute (API). (2024).

Carbon Capture and Storage: A Low-Carbon

Solution to Economy-Wide Greenhouse Gas

Emissions Reductions, https://www.api.org/newspolicy-and-issues/carbon-capture-storage.

82 Major energy company presidents have made

similar statements. For example, in 2021, Shell Oil

Company president Gretchen H. Watkins testified to

Congress that “Carbon capture and storage is a

proven technology,” and in 2022, Joe Blo

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