97-16511. Acid Rain Program: Phase II Early Reduction Credits  

  • [Federal Register Volume 62, Number 121 (Tuesday, June 24, 1997)]
    [Rules and Regulations]
    [Pages 34148-34151]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 97-16511]
    
    
    
    [[Page 34147]]
    
    _______________________________________________________________________
    
    Part IV
    
    
    
    
    
    Environmental Protection Agency
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    40 CFR Part 73
    
    
    
    Acid Rain Program: Phase II Early Reduction Credits; Final Rule
    
    Federal Register / Vol. 62, No. 121 / Tuesday, June 24, 1997 / Rules 
    and Regulations
    
    [[Page 34148]]
    
    
    
    ENVIRONMENTAL PROTECTION AGENCY
    
    40 CFR Part 73
    
    [FRL-5845-3]
    
    
    Acid Rain Program: Phase II Early Reduction Credits
    
    AGENCY: Environmental Protection Agency (EPA).
    
    ACTION: Direct final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: Title IV of the Clean Air Act, as amended by Clean Air Act 
    Amendments of 1990, (the Act) authorizes the Environmental Protection 
    Agency (EPA or Agency) to establish the Acid Rain Program in order to 
    reduce the adverse health and ecological impacts of acidic deposition. 
    On March 23, 1993, the Agency promulgated final rules allocating 
    allowances to utility units, including the criteria and method of 
    allocating early reduction credits under section 404(e) of the Act. 
    This action implements a settlement of litigation between EPA and a 
    utility regarding Phase II early reduction credits. The settlement 
    provides a method by which additional allowances may be loaned to units 
    receiving early reduction credits as an incentive to further reduce 
    emissions prior to the units becoming subject to the applicable Acid 
    Rain Program emission limitations.
        In the proposed rules section of this Federal Register, EPA is 
    proposing a rule that is identical to this direct final rule. If 
    significant, adverse comments are timely received on the proposed rule 
    (see DATES section), this direct final rule will be withdrawn and all 
    such comments will be addressed in a subsequent final rule based on the 
    proposed rule. If no significant, adverse comments are timely received 
    on the proposed rule, then the direct final rule becomes effective as 
    published and no further action is contemplated on the parallel 
    proposal published today.
    
    DATES: This rule is effective August 8, 1997, unless significant, 
    adverse comments are received by July 24, 1997. If significant, adverse 
    comments are received, EPA will publish notice in the Federal Register 
    withdrawing the direct final rule.
        Judicial Review. Under section 307(b)(1) of the Clean Air Act 
    (Act), judicial review of this rule is available only by filing a 
    petition for review in the U.S. Court of Appeals for the District of 
    Columbia Circuit within 60 days of today's publication of these direct 
    final revisions. Under section 307(b)(2) of the Act, the requirements 
    that are the subject of today's document may not be challenged later in 
    civil or criminal proceedings brought by EPA to enforce these 
    requirements.
    
    ADDRESSES: Docket and Comments. Docket No. A-97-31, containing 
    supporting information used to develop these amendments, is available 
    for public inspection and copying from 8:00 a.m. to 5:30 p.m., Monday 
    through Friday, excluding legal holidays, at EPA's Air Docket Section 
    (6102), Waterside Mall, Room M1500, 1st Floor, 401 M Street, SW, 
    Washington DC 20460, telephone 202-260-7548. Written comments should be 
    submitted to the same address. Information concerning the original 
    rules is found in Docket No. A-92-06, the proposed allowance allocation 
    rule. A reasonable fee may be charged for copying.
    
    FOR FURTHER INFORMATION CONTACT: Kathy Barylski at (202) 233-9074 Acid 
    Rain Division (6204J), U.S. Environmental Protection Agency, 401 M St., 
    S.W., Washington, DC 20460; or the Acid Rain Hotline at (202) 233-9620. 
    Electronic copies of this rulemaking can be accessed through the Acid 
    Rain Division website at http://www.epa.gov/acidrain.
    
    SUPPLEMENTARY INFORMATION: In the Proposed Rules Section of this 
    Federal Register, EPA is proposing rule revisions that provide a method 
    by which additional allowances may be loaned to units receiving early 
    reduction credits. This will provide an incentive to further reduce 
    emissions prior to the units becoming subject to the applicable Acid 
    Rain Program emission limitations. EPA considers these revisions to be 
    noncontroversial and anticipates no adverse comments. However, if EPA 
    timely receives significant, adverse comments, EPA will publish a 
    document in the Federal Register withdrawing the direct final rule. In 
    that event, all public comments received will be treated as comments on 
    the proposed rule as published in the Proposed Rules Section of this 
    Federal Register and will be addressed in a subsequent final rulemaking 
    document. EPA will not institute a second comment period on the 
    document in the Proposed Rules Section of this Federal Register or on 
    any subsequent final rule addressing withdrawn portions of this final 
    rule. Any parties interested in commenting on these revisions to part 
    73 should do so at this time.
    
    I. Affected Entities
    II. Background
    III. Phase II Early Reduction Credits
        A. Review of 1993 Rule
        B. Issues Resolved in Settlement
        1. General Approach
        2. Eligibility Criteria
        3. Loan of Allowances
        4. Reference Point
        C. Environmental Benefit
    IV. Administrative Requirements
        A. Executive Order 12866
        B. Unfunded Mandates Act
        C. Paperwork Reduction Act
        D. Regulatory Flexibility
        E. Miscellaneous
        F. Submission to Congress and the General Accounting Office
    
    I. Affected Entities
    
        Entities potentially regulated by this action are fossil-fuel fired 
    boilers or turbines that serve generators producing electricity for 
    sale. Regulated categories and entities include:
    
    
    ------------------------------------------------------------------------
                                                    Examples of regulated   
                     Category                             entities          
    ------------------------------------------------------------------------
    Industry..................................  Electric service providers. 
    ------------------------------------------------------------------------
    
        This table is not intended to be exhaustive, but rather provides a 
    guide for readers regarding entities that may be affected by this 
    action. To determine whether your facility may be affected by this 
    action, you should carefully examine the applicability criteria in 
    Sec. 72.6 and the exemptions in Secs. 72.7 and 72.8 of title 40 of the 
    Code of Federal Regulations and the revised Secs. 72.6, 72.7, 72.8, and 
    72.14 proposed on December 27, 1996 (61 FR 68340). If you have 
    questions regarding the applicability of this action to a particular 
    entity, consult the persons listed in the preceding FOR FURTHER 
    INFORMATION CONTACT section.
    
    II. Background
    
        The overall goal of the Acid Rain Program is to achieve significant 
    environmental benefits through reductions in emissions of sulfur 
    dioxide (SO2) and nitrogen oxides (NOx), the 
    primary causes of acid rain. To achieve this goal at the lowest cost to 
    society, the program employs both traditional and innovative, market-
    based approaches for controlling air pollution. In addition, the 
    program encourages energy efficiency and promotes pollution prevention.
        Title IV of the Clean Air Act sets as a primary goal the reduction 
    of annual SO2 emissions by 10 million tons below 1980 
    levels. To achieve these SO2 emissions reductions, the law 
    requires a two-phase tightening of restrictions placed on fossil fuel-
    fired power plants. Phase I began in 1995 and affected 110 mostly coal-
    burning electric utility plants located in 21 eastern and midwestern 
    states. Phase II, beginning in 2000, tightens the annual emissions 
    limits imposed on these large, higher
    
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    emitting plants and also sets restrictions on smaller or cleaner plants 
    fired by coal, oil, or gas. Title IV also requires certain coal-fired 
    units to reduce their emissions of NOX to a level achievable 
    through installation of applicable NOX control technology. 
    See 40 CFR part 76.
        The centerpiece of the Acid Rain Program is a unique trading system 
    in which allowances (each authorizing the emission of up to one ton of 
    SO2) may be bought and sold at prices determined by the free 
    market. Most existing utility units are allocated allowances based on 
    their historic fuel use and emission rates specified in the Act. 
    Affected utility units are required to limit SO2 emissions 
    to the number of allowances they hold, but because allowances are 
    transferrable, utilities may meet their emissions control requirements 
    in the most cost-effective manner.
        This rule relates to a small number of utilities eligible for 
    allowances under section 404(e) of the Act. Section 404(e) allows a 
    carefully delineated group of utilities to receive allowances for 
    SO2 emissions reductions achieved before their units are 
    subject to the Acid Rain Program SO2 emissions limitations. 
    For Phase I of early reduction credits, from 1991 through 1994, a 
    utility received 314,248 allowances. This rule modifies the Phase II 
    early reduction credits program, from 1995 through 1999.
    
    III. Phase II Early Reduction Credits
    
    A. Review of 1993 Rule
    
        Section 404(e) of the Act provided a lengthy delineation of 
    eligibility criteria for utility units to be allocated the additional 
    allowances for early reduction. However, the Act was less specific 
    regarding how the reduction of emissions would be calculated. The March 
    23, 1993 rule (58 FR 15634) provided a methodology that EPA believed 
    fairly represented the intent of the statute and accurately measured 
    the reduction in emissions.
        The first issue was to determine the calculation approach. EPA 
    considered a pure emissions approach, an emissions rate approach, and a 
    hybrid. EPA developed the hybrid approach to encourage the utilities to 
    increase utilization at cleaner plants and to discourage operational 
    shifts that would result in additional emissions. This approach is not 
    addressed in today's rule.
        The second issue was what comparison year to measure the reduction 
    against. The 1993 rule finalized use of calendar year 1990 as the 
    comparison year.
    
    B. Issues Resolved in Settlement
    
    1. General Approach
        One utility with Phase II affected units that are eligible for 
    early reduction credits for emission reductions from 1995 through 1999 
    initiated litigation regarding both the method of calculating early 
    reduction credits and the comparison year for measuring the reduction. 
    EPA and the utility worked together for over two years to craft a 
    settlement. Under the settlement, the utility may be loaned allowances 
    for fifteen years, while EPA is reasonably assured that the utility 
    will make additional emissions reductions, thus benefitting the 
    environment. These loaned allowances will be in addition to the early 
    reduction credits calculated under the existing rule.
    2. Eligibility Criteria
        In order to ensure that the settlement results in an environmental 
    benefit, EPA and the utility agreed that the additional loaned 
    allowances will only be available if the weighted average emission rate 
    (based on heat input) for the Phase I year in question for all of the 
    affected units in the unit's dispatch system is below the system-wide 
    weighted average emission rate for 1990. The utility's dispatch system 
    will be the dispatch system as it existed in 1990. In addition, the 
    1990 SO2 emission rate for any unit that did not operate at 
    all during 1990 will be deemed to be equal to the weighted average 
    emission rate of all the other units at the same plant that did operate 
    during 1990.
    3. Loan of Allowances
        The additional allowances will be awarded to the year 2000 
    subaccount. For each additional allowance, one allowance will be 
    deducted from the year 2015 subaccount. If there are not enough 
    allowances allocated under subpart B of part 73 to a unit's ATS 
    subaccount for the year 2015 to permit the deduction of the entire 
    number of allowances required to be deducted, additional allowances 
    shall be deducted from the unit's ATS subaccount for subsequent years, 
    as necessary to ensure that the required deduction is made. The unit's 
    designated representative may designate by serial number any allowances 
    to be deducted from the subaccount.
    4. Reference Point
        The utility interested in Phase II early reduction credits had 
    commented that it believed the credits should be based on the 
    difference between a projected emission rate in Phase I and the actual 
    rate. EPA is not reconsidering or modifying here the rule provisions 
    that base the early reduction credits upon the difference between the 
    actual Phase I emission rate and the 1990 emission rate. However, EPA 
    and the utility agreed that a projected emission rate will be used for 
    awarding the additional loaned allowances.
        The utility had provided a report prepared in 1991 estimating that 
    the utility's average fuel sulfur content would rise through Phase I, 
    resulting in an average emission rate of 1.75 lb/mmBtu, in the absence 
    of any early reduction credit program. During the course of settlement, 
    the utility provided additional materials from 1995 that confirmed that 
    its average fuel sulfur content would otherwise rise to at least 1.75 
    lb/mmBtu. Thus, the Agency and the utility agreed that a ``projected 
    baseline emission rate'' of 1.75 lb/mmBtu would be used to calculate 
    the loaned allowances.
        The Agency and the utility agreed that the additional loaned 
    allowances would be calculated in an amount equal to the product, 
    rounded to the nearest whole number, of (a) the unit's Phase I year 
    utilization (in mmBtu) and (b) the amount (in lbs/mmBtu) by which the 
    unit's ``projected baseline emission rate'' exceeds the greater of its 
    actual Phase I year emission rate or its 1990 emission rate.
    
    C. Environmental Benefit
    
        Under the existing early reduction credit program (without the 
    allowance loan provisions), the utility would only significantly reduce 
    the emission rate at one large coal plant (to 1.2 lb/mmBtu) and would 
    sign new coal contracts for an average of 1.75 lb/mmBtu. This would 
    result in total early reduction credits of about 106,000 and total 
    system-wide SO2 emissions of approximately 1.34 million 
    tons, over the five year period from 1995 through 1999.
        The utility has estimated that, with the new allowance loan 
    provisions, it would likely sign new coal contracts or buy spot market 
    coal with lower sulfur content and would reduce the emission rate at 
    most of its units. Using an estimate that new coal contracts could 
    average 1.4 lb/mmBtu, the early reduction credit program, as revised by 
    today's rule, could result in 173,000 early reduction credits, 158,000 
    loaned allowances, and total SO2 emissions of 1.19 million 
    tons.
        The environment could experience a reduction of 150,000 tons of 
    SO2 over five years (1.34 million tons minus 1.19 million 
    tons), and 67,000 tons of the reduction (173,000 early reduction 
    credits minus 106,000 early reduction
    
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    credits) would be offset by early reduction credits. Therefore, the 
    utility would receive 158,000 loaned allowances to compensate for an 
    additional 83,000 tons of emission reductions (150,000 tons of emission 
    reductions minus 67,000 tons of emission reductions offset by early 
    reduction credits). EPA believes that, because the allowances are 
    merely loaned, the environment may benefit by up to 83,000 tons less of 
    SO2 emitted to the atmosphere.
    
    IV. Administrative Requirements
    
    A. Executive Order 12866
    
        Under Executive Order 12866, 58 FR 51735 (October 4, 1993), the 
    Administrator must determine whether the regulatory action is 
    ``significant'' and therefore subject to Office of Management and 
    Budget (OMB) review and the requirements of the Executive Order. The 
    Order defines ``significant regulatory action'' as one that is likely 
    to result in a rule that may:
        (1) Have an annual effect on the economy of $100 million or more or 
    adversely affect in a material way the economy, a sector of the 
    economy, productivity, competition, jobs, the environment, public 
    health or safety, or State, local, or tribal governments or 
    communities;
        (2) Create a serious inconsistency or otherwise interfere with an 
    action taken or planned by another agency;
        (3) Materially alter the budgetary impact of entitlements, grants, 
    user fees, or loan programs or the rights and obligations of recipients 
    thereof; or
        (4) Raise novel legal or policy issues arising out of legal 
    mandates, the President's priorities, or the principles set forth in 
    the Executive Order.
        Pursuant to the terms of Executive Order 12866, it has been 
    determined that this rule is not a ``significant regulatory action'' 
    because the rule does not meet any of the criteria listed above. As 
    such, this action was not submitted to OMB for review.
    
    B. Unfunded Mandates Act
    
        Section 202 of the Unfunded Mandates Reform Act of 1995 (``Unfunded 
    Mandates Act'') requires that the Agency prepare a budgetary impact 
    statement before promulgating a rule that includes a federal mandate 
    that may result in expenditure by State, local, and tribal governments, 
    in aggregate, or by the private sector, of $100 million or more in any 
    one year. Section 203 requires the Agency to establish a plan for 
    obtaining input from and informing, educating, and advising any small 
    governments that may be significantly or uniquely affected by the rule.
        Under section 205 of the Unfunded Mandates Act, the Agency must 
    identify and consider a reasonable number of regulatory alternatives 
    before promulgating a rule for which a budgetary impact statement must 
    be prepared. The Agency must select from those alternatives the least 
    costly, most cost-effective, or least burdensome alternative that 
    achieves the objectives of the rule, unless the Agency explains why 
    this alternative is not selected or the selection of this alternative 
    is inconsistent with law.
        Because this rule is estimated to result in the expenditure by 
    State, local, and tribal governments or the private sector of less than 
    $100 million in any one year, the Agency has not prepared a budgetary 
    impact statement or specifically addressed the selection of the least 
    costly, most cost-effective, or least burdensome alternative. Because 
    small governments will not be significantly or uniquely affected by 
    this rule, the Agency is not required to develop a plan with regard to 
    small governments.
        The revisions to part 73 will not have a significant effect on 
    regulated entities or State permitting authorities. The revisions 
    represent an economic benefit to the affected utility and a benefit to 
    the environment. The early reduction credit program is operated 
    entirely by the EPA and, therefore, the changes will not burden the 
    State or local permitting authorities.
    
    C. Paperwork Reduction Act
    
        This rule will increase the information collection requirements of 
    the existing regulations, but only for utilities that are eligible and 
    wish to participate in the early reduction credit program. As only two 
    utilities are eligible for early reduction credits, an information 
    collection report is not required in connection with today's rule. 
    Therefore, no information collection report has been prepared or 
    submitted to the OMB under the Paperwork Reduction Act, 44 U.S.C. 3501, 
    et seq.
    
    D. Regulatory Flexibility
    
        EPA has determined that it is not necessary to prepare a regulatory 
    flexibility analysis in connection with this rule. EPA has also 
    determined that this rule will not have a significant economic impact 
    on a substantial number of small entities. Only two utilities are 
    potentially affected by this rule, and neither of those utilities is a 
    small entity.
    
    E. Miscellaneous
    
        In accordance with section 117 of the Act, issuance of this rule 
    was preceded by consultation with any appropriate advisory committees, 
    independent experts, and federal departments and agencies.
    
    F. Submission to Congress and the General Accounting Office
    
        Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
    Regulatory Enforcement Fairness Act of 1996, EPA submitted a report 
    containing this rule and other required information to the U.S. Senate, 
    the U.S. House of Representatives, and the Comptroller General of the 
    General Accounting Office prior to publication of the rule in today's 
    Federal Register. This rule is not a ``major rule'' as defined by 5 
    U.S.C. 804(2).
    
    List of Subjects in 40 CFR Part 73
    
        Air pollution control, Electric utilities, Reporting and 
    recordkeeping requirements, Sulfur dioxide.
    
        Dated: June 16, 1997.
    Carol M. Browner,
    Administrator.
    
        For the reasons set forth in the preamble, 40 CFR part 73 is 
    amended as set forth below.
    
    PART 73--[AMENDED]
    
        1. The authority citation for part 73 continues to read as follows:
    
        Authority: 42 U.S.C. 7601 and 7651 et seq.
    
        2. Section 73.20 is amended by revising paragraph (e)(4) and by 
    adding paragraph (f) to read as follows:
    
    
    Sec. 73.20  Phase II early reduction credits.
    
    * * * * *
        (e) * * *
        (4) For any unit that did not operate during 1990, the unit's 1990 
    SO2 emission rate will be equal to the weighted average 
    emission rate of all of the other units at the same source that did 
    operate during 1990.
    * * * * *
        (f) Allowance loan program. (1) Eligibility. Units eligible for 
    Phase II early reduction credits under paragraph (a) of this section 
    are eligible for allowances under this paragraph (f) if the weighted 
    average emission rate (based on heat input) for the prior year for all 
    of the affected units in the unit's dispatch system was less than the 
    system-wide weighted average emission rate for 1990. The weighted 
    average emission rate shall be calculated as follows:
    
    [[Page 34151]]
    
    [GRAPHIC] [TIFF OMITTED] TR24JN97.000
    
    
        For the purposes of this calculation, the unit's dispatch system 
    will be the dispatch system as it existed as of November 15, 1990.
        (2) Allowance Calculation. Allowances under this paragraph (f) 
    shall be calculated as follows:
    [GRAPHIC] [TIFF OMITTED] TR24JN97.001
    
        (3) Allowance Loan. (i) The number of allowances calculated under 
    paragraph (f)(2) of this section shall be allocated to the unit's year 
    2000 subaccount.
        (ii) The number of allowances calculated under paragraph (f)(2) of 
    this section shall be deducted, contemporaneously with the allocation 
    under paragraph (f)(3)(i) of this section, from the unit's year 2015 
    subaccount.
        (iii) Notwithstanding paragraph (f)(3)(ii) of this section, if the 
    number of allowances to be deducted exceeds the amount of allowances 
    allocated to the unit for the year 2015, allowances in the year 2015 
    subaccount equal to the amount of allowances allocated to the unit for 
    the year 2015 shall be deducted. In addition to the deduction from the 
    year 2015 subaccount, a sufficient amount of allowances in the year 
    2016 subaccount (up to the amount of allowances allocated to the unit 
    for the year 2016) shall be deducted contemporaneously, such that the 
    sum of the allowances deducted from the subaccounts equals the number 
    of allowances required to be deducted under paragraph (f)(3)(ii) of 
    this section.
        (iv) Notwithstanding paragraph (f)(3)(ii) of this section, the 
    procedure in paragraph (f)(3)(iii) shall be applied as follows to each 
    year after 2015 (year-by-year in numerical order) for which the number 
    of allowances to be deducted from that year's subaccount exceeds the 
    number allocated to the unit for that year: allowances equal to the 
    number allocated for that year shall be deducted from that year's 
    subaccount and the remainder (up to the amount allocated) necessary to 
    equal the number of allowances required to be deducted under paragraph 
    (f)(3)(ii) of this section shall be deducted from the next year's 
    subaccount.
        (v) The owners and operators of the unit shall ensure that 
    sufficient allowances are available to make the full deductions 
    required under paragraphs (f)(3)(ii), (iii), and (iv) of this section. 
    The designated representative may specify the serial number of each 
    allowance to be deducted.
        (4) ERC Units. Any unit to which allowances are allocated under 
    paragraph (f)(3)(i) of this section shall be considered an ERC unit for 
    purposes of applying the restrictions in paragraph (e)(6) of this 
    section.
    
    [FR Doc. 97-16511 Filed 6-23-97; 8:45 am]
    BILLING CODE 6560-50-P
    
    
    

Document Information

Effective Date:
8/8/1997
Published:
06/24/1997
Department:
Environmental Protection Agency
Entry Type:
Rule
Action:
Direct final rule.
Document Number:
97-16511
Dates:
This rule is effective August 8, 1997, unless significant, adverse comments are received by July 24, 1997. If significant, adverse comments are received, EPA will publish notice in the Federal Register withdrawing the direct final rule.
Pages:
34148-34151 (4 pages)
Docket Numbers:
FRL-5845-3
PDF File:
97-16511.pdf
CFR: (2)
40 CFR 72.6
40 CFR 73.20