Deseret Bonanza Title V Public Hearing
Opening Statement - Gail

Good afternoon. My name is Gail Fallon. I am the Branch Chief for the Air Permitting and Monitoring Branch in the Air and Radiation Division in EPA's Region 8 Office in Denver. This hearing concerns EPA's proposed action to issue a renewed Title V operating permit under the Clean Air Act for the Deseret Bonanza Power Plant located on Indian country lands within the Uintah & Ouray Indian Reservation.

Our proposed action was noticed for a 30-day public comment period beginning on February 9, 2021. In addition to verbal testimony received during this hearing, we are accepting written comments through 5 pm Mountain Time today.

The permit documents are available through our Region 8 permitting website which is linked to Regulations.gov. See the procedures for the hearing that are currently being presented on your screen for this website information.
Region 8 is proposing to issue a renewed air quality permit to operate under Federal Clean Air Act (CAA) title V (TV) and title 40 Code of Federal Regulations, part 71 for the Deseret Generation and Transmission Co-operative's Bonanza Power Plant (Bonanza) located on Indian country lands within the Uintah and Ouray Indian Reservation. The original permit was issued on December 5, 2014 and followed by two administrative amendments on October 19, 2015 and September 23, 2016, respectively. EPA is the permitting authority since the Ute tribe does not currently have an approved TV operating permit program.

The renewal draft TV permit includes requirements for controlling air pollutant emissions which come from the main boiler of the power plant and associated electric generating equipment. The draft permit discusses the main boiler emission limitations for particulate matter, sulfur dioxide and nitrogen oxides. Bonanza is a major source, emitting greater than 100 tons per year, for each of these pollutants in addition to carbon monoxide. Bonanza is also a major source of hazardous air pollutant (HAP) emissions, emitting greater than 25 tons per year of total HAP emissions. The draft permit also includes a coal consumption cap of 20,000,000 short tons for the period from January 1, 2020 through the end of service for the main boiler as well as other monitoring, recordkeeping and reporting requirements ensuring proper regulation of the facility.

For more information on Bonanza's TV permitting history, please visit: https://www.epa.gov/caa-permitting/title-v-operating-permit-deseret-generation-and-transmission-cooperative-bonanza

Your comments are encouraged. We will consider all comments in finalizing our permitting decision for the Deseret Bonanza Power Plant.

Thank you. We appreciate your attendance. And now I'll turn it over to Ms. Hall to explain some ground rules for the hearing.


[Federal Register Volume 86, Number 82 (Friday, April 30, 2021)]
[Rules and Regulations]
[Pages 22875-22876]
[FR Doc No: 2021-08915]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 62

[EPA-R06-OAR-2021-0059; FRL-10022-53-Region 6]

Approval and Promulgation of State Air Quality Plans for
Designated Facilities and Pollutants; Louisiana; Control of Emissions
From Existing Other Solid Waste Incineration Units

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the
Environmental Protection Agency (EPA) is notifying the public that we
have received a CAA section 111(d)/129 negative declaration from
Louisiana for existing incinerators subject to the Other Solid Waste
Incineration units (OSWI) emission guidelines (EG). This negative
declaration from Louisiana certifies that incinerators subject to the
OSWI EG and the requirements of sections 111(d) and 129 of the CAA do
not exist within the jurisdiction of Louisiana. The EPA is accepting
the negative declaration and amending the agency regulations in
accordance with the requirements of the CAA.

DATES: This rule is effective on June 1, 2021.

ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-R06-OAR-2021-0059. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
Confidential Business Information or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Karolina Ruan Lei, EPA Region 6
Office, Air and Radiation Division--State Planning and Implementation
Branch, 1201 Elm Street, Suite 500, Dallas, TX 75270,<PHONE_NUMBER>,
<EMAIL_ADDRESS>Out of an abundance of caution for members
of the public and our staff, the EPA Region 6 office will be closed to
the public to reduce the risk of transmitting COVID-19. Please call or
email the contact listed above if you need alternative access to
material indexed but not provided in the docket.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our
February 24, 2021, proposal (86 FR 11212). In that document we proposed
to accept the OSWI negative declaration from the Louisiana Department
of Environmental Quality (LDEQ) and to amend the Code of Federal
Regulations (CFR) in accordance with the requirements of the CAA. No
comments were received on the February 24, 2021, proposal.

II. Final Action

    In this final action, the EPA is amending 40 CFR part 62, subpart
T, to reflect receipt of the negative declaration letter from LDEQ,
received on November 24, 2020, certifying that there are no existing
incinerators subject to 40 CFR part 60, subpart FFFF, in its
jurisdiction in accordance with 40 CFR 60.23(b), 40 CFR 62.06, 40 CFR
60.2982, and sections 111(d) and 129 of the CAA.

III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a CAA
section 111(d)/129 submission that complies

with the provisions of the Act and applicable Federal regulations. 42
U.S.C. 7411(d); 42 U.S.C. 7429; 40 CFR part 60, subparts B and FFFF;
and 40 CFR part 62, subpart A. With regard to negative declarations for
designated facilities received by the EPA from states, the EPA's role
is to notify the public of the receipt of such negative declarations
and revise 40 CFR part 62 accordingly. For that reason, this action:
     Is not a ``significant regulatory action'' subject to
review by the Office of Management and Budget under Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011);
     Does not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based
on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
     Is not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
     Does not provide the EPA with the discretionary authority
to address, as appropriate, disproportionate human health or
environmental effects, using practicable and legally permissible
methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
    This rule also does not have Tribal implications because it will
not have a substantial direct effect on one or more Indian Tribes, on
the relationship between the Federal Government and Indian Tribes, or
on the distribution of power and responsibilities between the Federal
Government and Indian Tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. The EPA will submit 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 United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2).
    Under section 307(b)(1) of the CAA, petitions for judicial review
of this action must be filed in the United States Court of Appeals for
the appropriate circuit by June 29, 2021. Filing a petition for
reconsideration by the Administrator of this final rule does not affect
the finality of this action for the purposes of judicial review nor
does it extend the time within which a petition for judicial review may
be filed, and shall not postpone the effectiveness of such rule or
action. This action may not be challenged later in proceedings to
enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Reporting and
recordkeeping requirements, Waste treatment and disposal.

    Dated: April 23, 2021.
David Gray,
Acting Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental
Protection Agency amends 40 CFR part 62 as follows:

PART 62--APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED
FACILITIES AND POLLUTANTS

0
1. The authority citation for part 62 continues to read as follows:

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

Subpart T--Louisiana

0
2. Add an undesignated center heading and Sec.  62.4675 to read as
follows:

Emissions From Existing Other Solid Waste Incineration Units

Sec.  62.4675   Identification of plan--negative declaration.

    Letter from the Louisiana Department of Environmental Quality dated
November 24, 2020, certifying that there are no incinerators subject to
the Other Solid Waste Incineration units (OSWI) Emission Guidelines, at
40 CFR part 60, subpart FFFF, within its jurisdiction in the State of
Louisiana.

[FR Doc. 2021-08915 Filed 4-29-21; 8:45 am]
BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 176 (Tuesday, September 13, 2022)]
[Notices]
[Page 56047]
[FR Doc No: 2022-19726]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

Combined Notice of Filings

    Take notice that the Commission has received the following Natural
Gas Pipeline Rate and Refund Report filings:

Filings in Existing Proceedings

    Docket Numbers: RP18-75-007.
    Applicants: Algonquin Gas Transmission, LLC.
    Description: Compliance filing: AGT FRQ Settlement Extension 2022
to be effective N/A.
    Filed Date: 9/2/22.
    Accession Number: 20220902-5129.
    Comment Date: 5 p.m. ET 9/14/22.

    Any person desiring to protest in any the above proceedings must
file in accordance with Rule 211 of the Commission's Regulations (18
CFR 385.211) on or before 5:00 p.m. Eastern time on the specified
comment date.

Filings Instituting Proceedings

    Docket Numbers: RP22-1204-000.
    Applicants: Carolina Gas Transmission, LLC.
    Description: Sec.  4(d) Rate Filing: CGT--September 7, 2022
Negotiated Rate Agreement to be effective 10/1/2022.
    Filed Date: 9/7/22.
    Accession Number: 20220907-5019.
    Comment Date: 5 p.m. ET 9/19/22.

    Docket Numbers: RP22-1205-000.
    Applicants: Trunkline Gas Company, LLC.
    Description: Sec.  4(d) Rate Filing: Updates to Negotiated Rate
Authority and Website Links to be effective 10/7/2022.
    Filed Date: 9/7/22.
    Accession Number: 20220907-5033.
    Comment Date: 5 p.m. ET 9/19/22.

    Any person desiring to intervene or protest in any of the above
proceedings must file in accordance with Rules 211 and 214 of the
Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00
p.m. Eastern time on the specified comment date. Protests may be
considered, but intervention is necessary to become a party to the
proceeding.
    The filings are accessible in the Commission's eLibrary system
(https://elibrary.ferc.gov/idmws/search/fercgensearch.asp) by querying
the docket number.
    eFiling is encouraged. More detailed information relating to filing
requirements, interventions, protests, service, and qualifying
facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call<PHONE_NUMBER>
(toll free). For TTY, call<PHONE_NUMBER>.

    Dated: September 7, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.
[FR Doc. 2022-19726 Filed 9-12-22; 8:45 am]
BILLING CODE 6717-01-P


  SEQ CHAPTER \h \r 1  	ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R03-OAR-2006-0485; FRL-       ]

Approval and Promulgation of Air Quality Implementation Plans; West
Virginia; Redesignation of the Huntington, West Virginia Portion of the
Huntington-Ashland 8-Hour Ozone Nonattainment Area to Attainment and
Approval of the Area’s Maintenance Plan

AGENCY:	Environmental Protection Agency (EPA).

ACTION:	Final rule.

SUMMARY:  EPA is approving a redesignation request and a State
Implementation Plan (SIP) revision submitted by the State of West
Virginia.  The West Virginia Department of Environmental Protection
(WVDEP) is requesting that the Huntington, West Virginia (Huntington)
portion of the Huntington-Ashland, WV-KY area be redesignated as
attainment for the 8-hour ozone national ambient air quality standard
(NAAQS).  In conjunction with its redesignation request, the State
submitted a SIP revision consisting of a maintenance plan for Huntington
that provides for continued attainment of the 8-hour ozone NAAQS for the
next 12 years, until 2018.  Concurrently, EPA is approving the
maintenance plan as meeting the requirements of Clean Air Act (CAA)
175A(b) with respect to the 1-hour ozone maintenance plan update.  EPA
is also approving the adequacy determination for the motor vehicle
emission budgets (MVEBs) that are identified in the 8-hour maintenance
plan for Huntington for purposes of transportation conformity, and is
approving those MVEBs.  EPA is approving the redesignation request and
the maintenance plan revision to the West Virginia SIP in accordance
with the requirements of the CAA.

EFFECTIVE DATE:  This final rule is effective on [insert date 30 days
from date of publication].

ADDRESSES:  EPA has established a docket for this action under Docket ID
Number EPA- R03-OAR-2006-0485.  All documents in the docket are listed
in the     HYPERLINK "http://www.regulations.gov"  www.regulations.gov
website.  Although listed in the electronic docket, some information is
not publicly available, i.e., 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 either electronically
through     HYPERLINK "http://www.regulations.gov"  www.regulations.gov
or in hard copy for public inspection during normal business hours at
the Air Protection Division, U.S. Environmental Protection Agency,
Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.  Copies
of the State submittal are available at the West Virginia Department of
Environmental Protection, Division of Air Quality, 601 57th Street SE,
Charleston, WV 25304.

FOR FURTHER INFORMATION CONTACT:  Amy Caprio,<PHONE_NUMBER>, or by
e-mail at   HYPERLINK<EMAIL_ADDRESS><EMAIL_ADDRESS>.

SUPPLEMENTARY INFORMATION:

I.  Background

On July 13, 2006 (71 FR 39618), EPA published a notice of proposed
rulemaking (NPR) for the State of West Virginia.  The NPR proposed
approval of West Virginia’s redesignation request and a SIP revision
that establishes a maintenance plan for Huntington that sets forth how
Huntington will maintain attainment of the 8-hour ozone NAAQS for the
next 12 years.  The formal SIP revision was submitted by the WVDEP on
May 17, 2006.  Other specific requirements of West Virginia’s
redesignation request SIP revision for the maintenance plan and the
rationale for EPA’s proposed action are explained in the NPR and will
not be restated here.  No public comments were received on the NPR.

II.  Final Action

EPA is approving the State of West Virginia’s May 17, 2006
redesignation request and maintenance plan because the requirements for
approval have been satisfied.  EPA has evaluated West Virginia’s
redesignation request, submitted on May 17, 2006, and determined that it
meets the redesignation criteria set forth in section 107(d)(3)(E) of
the CAA.  EPA believes that the redesignation request and monitoring
data demonstrate that Huntington has attained the 8-hour ozone standard.
 The final approval of this redesignation request will change the
designation of the Huntington, West Virginia portion of the
Huntington-Ashland area from nonattainment to attainment for the 8-hour
ozone standard.  EPA is approving the associated maintenance plan for
this area, submitted on May 17, 2006, as a revision to the West Virginia
SIP.  EPA is approving the maintenance plan for Huntington because it
meets the requirements of section 175A and 175A(b) with respect to the
1-hour ozone maintenance plan update.  EPA is also approving the MVEBs
submitted by West Virginia for this area in conjunction with its
redesignation request.  Huntington is subject to the CAA’s
requirements for basic ozone nonattainment areas until and unless it is
redesignated to attainment.

 III.  Statutory and Executive Order Reviews

A.  General Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this final
action is not a "significant regulatory action" and therefore is not
subject to review by the Office of Management and Budget.  For this
reason, this action is also not subject to Executive Order 13211,
"Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use"  (66 Fed. Reg. 28355 (May 22, 2001)).  This action
approves state law as meeting Federal requirements and imposes no
additional requirements beyond those imposed by state law.
Redesignation of an area to attainment under section 107(d)(3)(e) of the
Clean Air Act does not impose any new requirements on small entities.
Redesignation is an action that affects the status of a geographical
area and does not impose any new regulatory requirements on sources.
Accordingly, the Administrator certifies that this final rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
Because this rule approves pre-existing requirements under state law and
does not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded Mandates
Reform Act of 1995 (Public Law 104-4).  This final rule also does not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct effects
on the States, on the relationship between the national government and
the States, or on the distribution of power and responsibilities among
the various levels of government, as specified in Executive Order 13132
(64 FR 43255, August 10, 1999), because it affects the status of a
geographical area, does not impose any new requirements on sources, or
allow the state to avoid adopting or implementing other requirements,
and does not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act.  This final rule also
is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.

In reviewing SIP submissions, EPA’s role is to approve state choices,
provided that they meet the criteria of the Clean Air Act.  In this
context, in the absence of a prior existing requirement for the State to
use voluntary consensus standards (VCS), EPA has no authority to
disapprove a SIP submission for failure to use VCS.  It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission; to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act.  Redesignation is an
action that affects the status of a geographical area and does not
impose any new requirements on sources.  Thus, the requirements of
section 12(d) of the National Technology Transfer and Advancement Act of
1995 (15 U.S.C. 272 note) do not apply.  As required by section 3 of
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this
final rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a clear
legal standard for affected conduct.  EPA has complied with Executive
Order 12630 (53 FR 8859, March 15, 1988) by examining the takings
implications of the rule in accordance with the “Attorney General’s
Supplemental Guidelines for the Evaluation of Risk and Avoidance of
Unanticipated Takings” issued under the executive order.

B.  Submission to Congress and the Comptroller General

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating the
rule must submit a rule report, which includes a copy of the rule, to
each House of the Congress and to the Comptroller General of the United
States.  EPA will submit 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 United States prior
to publication of the rule in the Federal Register.  This rule is not a
“major rule” as defined by 5 U.S.C. 804(2).

C.  Petitions for Judicial Review

Under section 307(b)(1) of the Clean Air Act, petitions for judicial
review of this action must be filed in the United States Court of
Appeals for the appropriate circuit by [insert date 60 days from date of
publication of this document in the Federal Register].  Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action.

This action, to approve the redesignation request, maintenance plan and
adequacy determination for MVEBs for Huntington, may not be challenged
later in proceedings to enforce its requirements.  (See section
307(b)(2)).

List of Subjects

40 CFR part 52

Environmental protection, Air pollution control, Intergovernmental
relations, Ozone, Nitrogen Dioxides, Reporting and recordkeeping
requirements, Volatile organic compounds.

40 CFR Part 81

Environmental protection, Air pollution control, National parks,
Wilderness areas

_________				                        ___________________________

Dated: 	September 6, 2006			   	W.T. Wisniewski,

							Acting Regional Administrator,

							Region III.

40 CFR parts 52 and 81 are amended as follows:

PART 52 - [AMENDED]

1.  The authority citation for part 52 continues to read as follows:

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

Subpart XX– West Virginia

2. In § 52.2520, the table in paragraph (e) is amended by adding an
entry for the 8-Hour Ozone Maintenance Plan, Huntington-Ashland, WV-KY
Area at the end of the table to read as follows:

§ 52.2520  		Identification of plan.

*		*		*		*		*

(e)***

Name of non-regulatory SIP revision	Applicable geographic area	State
submittal date	EPA approval date	Additional

explanation

*                    *                      *                   *
           *                 *                    *

8-Hour Ozone Maintenance Plan for the Huntington-Ashland, WV-KY Area
Cabell and Wayne Counties 	05/17/06	[Insert Federal Register publication
date] [Insert page number where the document begins]

PART 81 - [AMENDED]

	1.  The authority citation for Part 81 continues to read as follows:

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

	2.  Section 81.349 is amended by revising the ozone table entry for the
Huntington-Ashland, WV-KY Area to read as follows:

§ 81.349              West Virginia

*          *          *          *          *

		West Virginia - Ozone (8-Hour Standard)

Designated Area	Designationa	Category/Classification

	Date1	Type	Date1	Type

*          *          *         *         *          *          *

Huntington-Ashland, WV-KY Area

Cabell County	[Insert date of publication]	Attainment

Wayne County	[Insert date of publication]	Attainment

*          *          *         *         *          *

aIncludes Indian country located in each county or area except otherwise
noted.

1 This date is June 15, 2004, unless otherwise noted.

*          *          *         *         *

  PAGE   3

  PAGE   7


[Federal Register Volume 86, Number 22 (Thursday, February 4, 2021)]
[Rules and Regulations]
[Pages 8133-8140]
[FR Doc No: 2021-01988]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 292

[Docket Nos. RM21-2-000 and RM20-20-000; Order No. 874]

Fuel Cell Thermal Energy Output; Bloom Energy Corporation

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final rule.

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SUMMARY: In this final rule, the Federal Energy Regulatory Commission
amends the definition of useful thermal energy output in its
regulations implementing the Public Utility Regulatory Policies Act of
1978 to recognize the technical evolution of cogeneration.

DATES: This rule is effective April 5, 2021.

FOR FURTHER INFORMATION CONTACT:
Lawrence R. Greenfield (Legal Information), Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>Helen Shepherd (Technical Information), Office of Energy Market
Regulation, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>Thomas Dautel (Technical Information), Office of Energy Policy and
Innovation, Federal Energy Regulatory

Commission, 888 First Street NE, Washington, DC 20426,<PHONE_NUMBER>,
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

I. Introduction

    1. In this final rule, the Federal Energy Regulatory Commission
(Commission) revises its regulations (PURPA Regulations) \1\
implementing sections 201 and 210 of the Public Utility Regulatory
Policies Act of 1978 (PURPA) \2\ in light of the development of fuel
cell systems with integrated hydrocarbon reformation equipment as a
technical evolution of cogeneration.
---------------------------------------------------------------------------

    \1\ 18 CFR part 292.
    \2\ 16 U.S.C. 796, 824a-3.
---------------------------------------------------------------------------

    2. On October 15, 2020, the Commission issued a notice of proposed
rulemaking (NOPR) proposing to modify the PURPA Regulations.\3\ Bloom
Energy, Edison Electric Institute (EEI), and FuelCell Energy, Inc.
(FuelCell Energy) responded with comments and the California Public
Utilities Commission filed a notice of intervention. Bloom Energy also
filed a motion to submit reply comments, and reply comments, to the
comments of FuelCell Energy and EEI.
---------------------------------------------------------------------------

    \3\ Fuel Cell Thermal Energy Output, Notice of Proposed
Rulemaking, 85 FR 67,699 (Oct. 26, 2020), 175 FERC ] 61,050 (2020)
(NOPR).
---------------------------------------------------------------------------

    3. This final rule addresses the comments received in response to
the NOPR. With one modification, we adopt the proposed revisions in the
NOPR.

II. Background

    4. PURPA was part of a legislative package Congress enacted in 1978
to address the energy crisis then facing the country.\4\ As the Supreme
Court explained in FERC v. Mississippi,\5\ Congress was aware that
domestic oil production had lagged behind demand, and the country had
become increasingly dependent on foreign oil--which could jeopardize
the country's economy and undermine its independence.\6\ Roughly a
third of the nation's electricity was generated using oil and natural
gas,\7\ and Congress concluded that increased reliance on cogeneration
and small power production could significantly contribute to conserving
this energy.\8\ As recognized by the Supreme Court, Congress passed
PURPA to address the impacts of oil and natural gas shortages (and
electric utilities' decreasing efficiency in their generating
capacities) on customer rates and the economy as a whole.\9\
---------------------------------------------------------------------------

    \4\ See Public Law 95-617, 92 Stat. 3117 (1978). In addition to
PURPA, that legislative package included: The Energy Tax Act of
1978, Public Law 95-618, 92 Stat. 3174; the National Energy
Conservation Policy Act, Public Law 95-619, 92 Stat. 3206; the
Powerplant and Industrial Fuel Use Act of 1978, Public Law 95-620,
92 Stat. 3289; and the Natural Gas Policy Act of 1978, Public Law
95-621, 92 Stat. 3351.
    \5\ 456 U.S. 742 (1982).
    \6\ Id. at 756.
    \7\ Id. at 745.
    \8\ Id. at 757.
    \9\ Id. at 745-46.
---------------------------------------------------------------------------

    5. PURPA section 210 was intended to address the energy crisis by
encouraging the development of QFs and thereby reducing the country's
demand for traditional fossil fuels.\10\ PURPA section 210(a) thus
directed that the Commission ``prescribe, and from time to time
thereafter revise, such rules as [the Commission] determines necessary
to encourage cogeneration and small power production.'' \11\
---------------------------------------------------------------------------

    \10\ Id. at 750.
    \11\ 16 U.S.C. 824a-3(a).
---------------------------------------------------------------------------

    6. In 1980, the Commission issued Order No. 70, which promulgated
rules that, as relevant here, largely remain in effect today.\12\ Order
No. 70 established the ``criteria and procedures by which small power
producers and cogeneration facilities can obtain qualifying status to
receive the rate benefits and exemptions'' contained in PURPA section
210.\13\ As relevant here, the Commission established criteria for a
cogeneration QF, a facility that, as required by the statute,
``produces (i) electric energy, and (ii) steam or forms of useful
energy (such as heat) which are used for industrial, commercial,
heating or cooling purposes.'' \14\
---------------------------------------------------------------------------

    \12\ Small Power Production and Cogeneration Facilities--
Qualifying Status, Order No. 70, 45 FR 17959 (Mar. 20, 1980), FERC
Stats. & Regs. ] 30,134 (cross-referenced at 10 FERC ] 61,230),
order on reh'g, Order No. 70-A, 45 FR 33603 (May 20, 1980), FERC
Stats. & Regs. ] 30,159 (cross-referenced at 11 FERC ] 61,119),
order on reh'g, Order No. 70-B, 45 FR 52779 (Aug. 4, 1980), FERC
Stats. & Regs. ] 30,176 (cross-referenced at 12 FERC ] 61,128),
order on reh'g, 45 FR 66784 (Oct. 8, 1980) FERC Stats. & Regs. ]
30,192 (1980) (cross-referenced at 12 FERC ] 61,306), amending
regulations, Order No. 70-D, 46 FR 11251 (Feb. 6, 1981), FERC Stats.
& Regs. ] 30,234 (cross-referenced at 14 FERC ] 61,076), amending
regulations, Order No. 70-E, 46 FR 33025 (Jun. 26, 1981) FERC Stats.
& Regs. ] 30,274 (1981) (cross-referenced at 15 FERC ] 61,281).
    \13\ Order No. 70, FERC Stats. & Regs. ] 30,134 at 30,933.
    \14\ 16 U.S.C. 796(18); accord 18 CFR 292.202(c).
---------------------------------------------------------------------------

    7. In enacting PURPA, Congress could not, and did not, predict
specific technological developments that would occur in future years
but instead recognized the Commission's discretion by directing the
Commission to ``from time to time thereafter revise such rules as it
determines necessary to encourage cogeneration.'' \15\ Although in 1978
the predominant form of cogeneration was a more traditional combined
heat and power, Congress did not limit the definition of qualifying
cogeneration facilities to the particular technologies then in
existence. Instead, as described above, Congress defined a cogeneration
facility as a facility that produces: (1) Electric energy; and (2)
steam or forms of useful energy, such as heat, which are used for
industrial, commercial, heating or cooling purpose.\16\ Congress
otherwise left it for the Commission, from time to time, to determine
the types of facilities that would qualify as cogeneration facilities
under the statute.
---------------------------------------------------------------------------

    \15\ 16 U.S.C. 824a-3(a).
    \16\ See supra note 14.
---------------------------------------------------------------------------

    8. Unlike more traditional electric generation that relies on
combustion of fossil fuels to produce electric energy, fuel cells
convert the chemical energy in hydrogen to electric energy without
combustion. This conversion has been characterized as a significant
improvement in the efficiency of electric generation.\17\ More
specifically, hydrogen fuel--which can be produced from the application
of heat and steam to hydrocarbons such as natural gas--enters the anode
side of the fuel cell. Simultaneously, ambient air enters the cathode
side of the fuel cell. The hydrogen fuel on the anode attracts oxygen
ions from the cathode. The resulting electrochemical reaction produces
electricity plus heat and steam that can be used up front to reform
natural gas on-site to produce the hydrogen that fuels the fuel
cell.\18\
---------------------------------------------------------------------------

    \17\ Bloom Energy Petition at 8.
    \18\ Id.
---------------------------------------------------------------------------

    9. If the natural gas reformation equipment were instead located
offsite, then waste heat (in the form of steam) from the electricity
production by the fuel cell would not be available to aid the
reformation process to fuel the cell. In this offsite reformation
scenario, we would expect the external reformation process to require
additional natural gas to be burned to create steam so that the
remainder of the input natural gas could be reformed into hydrogen.\19\
This would be inefficient and inconsistent with Congress's goal in
enacting PURPA, as discussed above.
---------------------------------------------------------------------------

    \19\ Furthermore, because hydrogen is frequently compressed or
liquified for shipment to the point of consumption, more energy
would be needed for these activities. Id. at 8 & App. B.
---------------------------------------------------------------------------

    10. Stated another way, integrating the natural gas reformation
process into a fuel cell generating facility results in significant
``progress in the development of efficient electric energy generating
technology.'' \20\
---------------------------------------------------------------------------

    \20\ Id. at 1, 3, 7, 16 (citing 16 U.S.C. 824a-3(n)(1)(A)(iii)).
---------------------------------------------------------------------------

III. NOPR Proposal

    11. In the NOPR, the Commission stated that the statutory
definition of

cogeneration facilities requires that a cogeneration facility produce
``(i) electric energy, and (ii) steam or forms of useful energy (such
as heat) which are used for industrial, commercial, heating or cooling
purposes.'' \21\ This definition provides for steam or other forms of
useful energy to be used for, e.g., an industrial purpose. The creation
by a fuel cell system with an integrated natural gas reformation
process of a commercially valuable fuel, as described in the NOPR,
would fit within the scope of this statutory definition. Consistent
with the PURPA Regulations, fuel cell systems with integrated natural
gas reformation equipment produce two forms of energy: Electricity, and
the heat/steam (thermal energy) used to create the hydrogen that fuels
the fuel cell system (a chemical energy).
---------------------------------------------------------------------------

    \21\ 16 U.S.C. 796(18)(A).
---------------------------------------------------------------------------

    12. The Commission's PURPA Regulations define a topping-cycle
cogeneration facility as a cogeneration facility in which the energy
input to the facility is first used to produce useful power output and
at least some of the reject heat from the power production process is
then used to provide useful thermal energy.\22\
---------------------------------------------------------------------------

    \22\ 18 CFR 292.202(d).
---------------------------------------------------------------------------

    13. Fuel cell systems with integrated natural gas reformation
equipment convert the chemical energy within natural gas into
electricity using a steam-methane reformation process,\23\ which
essentially converts the methane in the natural gas input to hydrogen,
which then reacts with oxygen in the fuel cell to produce electricity.
The by-product of the fuel cell's production of electricity is heat and
steam, some of which can be used in the steam-methane reformation
process to convert more methane into hydrogen, which the fuel cells
use, in combination with oxygen from the air, to produce electricity.
---------------------------------------------------------------------------

    \23\ Industrial gas manufacturers also produce hydrogen from
natural gas using a steam-methane reformation process, but must
produce their own steam, usually through combustion of some of the
input natural gas. Because the buyers of the resulting hydrogen are
usually remote from the industrial gas manufacturer, this hydrogen
is either compressed or liquified in order to transport the hydrogen
to the end user. Integrating the natural gas steam reformation
process into a fuel cell system increases efficiency and avoids the
energy loss of external reformation, and compression or liquefaction
for surface transportation. Bloom Energy Petition at 8 & App. B.
---------------------------------------------------------------------------

    14. As a cogeneration QF is one that ``produces electric energy as
well as steam or forms of useful energy (such as heat) which are used
for industrial, commercial, heating or cooling purposes,'' \24\
consistent with the PURPA Regulations, fuel cell systems with
integrated natural gas reformation equipment generate two forms of
useful energy--electricity, and heat/steam (thermal energy) that is
used to produce hydrogen (a chemical energy).
---------------------------------------------------------------------------

    \24\ 16 U.S.C. 796(18).
---------------------------------------------------------------------------

    15. The PURPA Regulations identify three categories of useful
thermal output from a topping-cycle cogenerator. They are thermal
energy (1) that is ``made available to an industrial or commercial
process . . .; (2) that is used in a heating application . . .; or (3)
that is used in a space cooling application.'' \25\ In the NOPR, the
Commission proposed to amend its regulations to provide that the
production of heat/steam by a solid oxide fuel cell system for use in
an integrated natural gas reformation process to produce hydrogen
yields a useful thermal energy output made available to an industrial
process that, as described in the NOPR, entitles such a system to be
considered a topping cycle cogeneration facility that qualifies,
subject to meeting the other relevant requirements,\26\ to be a QF. The
Commission stated that the recent technological advances in utilizing
the thermal energy from a solid oxide fuel cell in an integrated steam
hydrocarbon reformation process were not known or anticipated when the
Commission adopted its original definitions for useful thermal energy,
but that fact should not stand in the way of the Commission now
recognizing such advances and responding accordingly.\27\
---------------------------------------------------------------------------

    \25\ 18 CFR 292.202(h).
    \26\ See 18 CFR 292.203(b), 292.205. If the cogeneration
facility is a ``new'' qualifying cogeneration facility ``seeking to
sell electric energy pursuant to [PURPA section 210],'' such
facility must meet certain additional requirements. 16 U.S.C. 824a-
3(n); accord 18 CFR 292.205(d) (implementing PURPA section 210(n),
by requiring an additional showing for certain cogeneration
facilities that are ``seeking to sell electric energy pursuant to
[PURPA] section 210'').
    \27\ See infra note 53.
---------------------------------------------------------------------------

    16. In recognition of technological advancements over the past 40
years and Congress's commitment to ``continuing progress in the
development of efficient electric energy generating technology,'' \28\
and in light of the development and commercialization of fuel cell
systems with integrated natural gas reformation equipment since the
original adoption of the PURPA Regulations, the Commission proposed in
the NOPR to amend section 292.202(h) of the PURPA Regulations by adding
a new paragraph providing that useful thermal energy output include the
thermal energy that is used by a solid oxide fuel cell system with an
integrated steam hydrocarbon reformation process for production of fuel
for electricity generation.\29\
---------------------------------------------------------------------------

    \28\ 16 U.S.C. 824a-3(n)(1)(A)(iii).
    \29\ NOPR, 175 FERC ] 61,050 at PP 1, 3, 7, 10-11.
---------------------------------------------------------------------------

    17. In proposing this change to its regulations, the Commission did
not propose to revise section 292.205(d) of the PURPA Regulations,
which establishes additional criteria for, in particular, new
cogeneration facilities seeking to sell electric energy pursuant to
PURPA section 210.\30\ The Commission proposed that any new
cogeneration facility that is a solid oxide fuel cell system with an
integrated steam hydrocarbon reformation process would be required to
satisfy the existing criteria of section 292.205(d) of the PURPA
Regulations if it seeks to make sales of electric energy pursuant to
PURPA section 210.
---------------------------------------------------------------------------

    \30\ 18 CFR 292.205(d); see also 18 CFR 292.205(d)(4) (``For
purposes of paragraphs (d)(1) and (2) of this section, a new
cogeneration facility of 5 MW or smaller will be presumed to satisfy
the requirements of those paragraphs.''). That presumption for 5 MW
or smaller facilities is a rebuttable presumption, though.
    Revised Regulations Governing Small Power Production and
Cogeneration Facilities, Order No. 671, 114 FERC  61,102,
at PP 26, 60, order on reh'g, Order No. 671-A, 115 FERC ] 61,225
(2006).
---------------------------------------------------------------------------

IV. Comments

    18. FuelCell Energy, which explains that it operates fuel cell
systems on three continents that have generated over 10 billion kWh of
power, asks the Commission to revise its regulations to encompass more
than just solid oxide fuel cell systems. FuelCell Energy asserts that
Bloom Energy requested that the Commission expand its current
definition of a cogeneration facility so that Bloom Energy's solid
oxide fuel cells qualify as a QF. FuelCell Energy argues that the
Commission should revise the definition, so it can apply more broadly
to any fuel cell systems that use waste heat for the reforming of fuel
to produce hydrogen, and not just Bloom Energy's solid oxide fuel cell
system.\31\
---------------------------------------------------------------------------

    \31\ FuelCell Energy Comments at 5, 7.
---------------------------------------------------------------------------

    19. FuelCell Energy asserts that its carbonate fuel cells use waste
heat in an integrated fuel reforming process to produce hydrogen,\32\
just as Bloom Energy's solid oxide fuel cells do. FuelCell Energy
contends that, as long as fuel cell systems use waste heat for the
reforming of hydrocarbon fuel to produce hydrogen, the particular fuel
cell technology should not be exclusive or exclusionary; so long as
there is no efficiency tradeoffs or additional negative environmental
impacts, the type of fuel cell technology (whether

carbonate or solid oxide) should be irrelevant.\33\
---------------------------------------------------------------------------

    \32\ Id. at 6.
    \33\ Id. at 5.
---------------------------------------------------------------------------

    20. EEI requests that the Commission not move forward with this
final rule, arguing that the Commission cannot expand the statutory
definition of a cogeneration facility.\34\ EEI asserts that fuel cell
technology does not meet the statutory requirements to be certified as
a cogeneration facility. EEI agrees that the Commission is charged with
implementing PURPA through adoption of regulations but argues that, in
doing so, the Commission is limited by the statutory requirements. EEI
states that, to qualify as a QF, a cogeneration facility must meet the
statutory definition of a cogeneration facility, i.e., it must be a
facility which produces: (1) Electric energy and (2) steam or forms of
useful energy (such as heat) which are used for industrial, commercial,
heating or cooling purposes.\35\
---------------------------------------------------------------------------

    \34\ EEI Comments at 2.
    \35\ Id. at 4 (quoting 16 U.S.C. 796(18)).
---------------------------------------------------------------------------

    21. EEI also points out that the statute requires that the
Commission establish regulations that ensure that:

    (i) The thermal energy output of a new qualifying cogeneration
facility is used in a productive and beneficial manner;
    (ii) the electrical, thermal, and chemical output of the
cogeneration facility is used fundamentally for industrial,
commercial, or institutional purposes and is not intended
fundamentally for sale to an electric utility, taking into account
technological, efficiency, economic, and variable thermal energy
requirements, as well as State laws applicable to sales of electric
energy from a qualifying facility to its host facility; and
    (iii) continuing progress in the development of efficient
electric energy generating technology.\36\
---------------------------------------------------------------------------

    \36\ Id. (quoting16 U.S.C. 824a-3(n)).

    22. EEI argues that this statutory language indicates that,
contrary to the Commission's statement in the NOPR, the definition of
cogeneration is not ``open-ended.'' \37\ EEI recognizes that other
technologies may qualify as cogeneration facilities under the statute
but argues that the fuel cell technology described in the NOPR does not
meet the statutory requirement.\38\
---------------------------------------------------------------------------

    \37\ Id. (referencing NOPR, 175 FERC ] 61,050 at P 3).
    \38\ Id.
---------------------------------------------------------------------------

    23. EEI explains that the solid oxide fuel cell system described in
the NOPR appears to be a self-contained reaction that is designed to
produce electricity and thus is inconsistent with the statutory
requirement.\39\ EEI explains that, in Order No. 70, the Commission
defined a cogeneration facility as one that
---------------------------------------------------------------------------

    \39\ Id. at 6.

produces electric energy and steam or forms of useful energy (such
as heat) which are used for industrial, commercial, heating, or
cooling purposes. Thus, cogeneration facilities simultaneously
produce two forms of useful energy, namely electric power and heat.
Cogeneration facilities can use significantly less fuel to produce
electricity and steam (or other forms of energy) than would be
needed to produce the two separately. By using the fuels more
efficiently cogeneration facilities can make a significant
contribution to the Nation's effort to conserve its energy
resources.\40\
---------------------------------------------------------------------------

    \40\ Id. (quoting Order No. 70, FERC Stats. & Regs. ] 30,134 at
30,931-32).

---------------------------------------------------------------------------
    24. Further, EEI explains that there is

an explicit requirement for the sequential use of energy in
cogeneration facilities. This means that rejected heat from a power
production or heating process is used in another power production or
heating process. It is precisely this ``cascading'' use of energy in
sequential processes that gives rise to the energy conserving
characteristics of cogeneration.\41\
---------------------------------------------------------------------------

    \41\ Id. (quoting Order No. 70, FERC Stats. & Regs. ] 30,134 at
30,934).

    25. EEI explains that, in adopting this provision in Order No. 70,
the Commission clarified the facilities eligible for QF status did not
include natural gas-fired combined-cycle combustion plants even though
the sequential use of heat is used to produce more electricity.\42\ EEI
argues that the main difference between a solid oxide fuel cell and a
natural gas-fired combined-cycle facility is that the solid oxide fuel
cell produces electricity from natural gas through a chemical reaction
instead of combustion, which is not a meaningful distinction because
``[i]f the thermal energy uses were not required to be completely
independent of the power production processes many conventional
generating facilities could be considered cogeneration facilities and
may be eligible for the benefits of section 210 of PURPA.'' \43\
---------------------------------------------------------------------------

    \42\ Id. at 6-7.
    \43\ Id. at 7 (quoting EG&G, Inc., 16 FERC ] 61,060, at 61,104
(1981)).
---------------------------------------------------------------------------

    26. EEI argues that allowing solid oxide fuel cells to now qualify
as cogeneration is inconsistent with the rationale behind encouraging
cogeneration under PURPA. EEI explains that, in Order No. 70, the
Commission recognized that the goal was to promote conservation by
recognizing that the production of electricity often creates a
byproduct, thermal energy, and with minimal additional fuel the
cogenerators could produce large amounts of thermal energy that could
be used in other processes.\44\ EEI asserts that solid oxide fuel
cells' primary purpose is to produce more electricity instead of using
the thermal energy for another, independent purpose.
---------------------------------------------------------------------------

    \44\ Id.
---------------------------------------------------------------------------

    27. Finally, EEI argues that, in the past, the Commission has
remained technology neutral; yet, here, the Commission is proposing to
change its PURPA Regulations to endorse a specific technology. EEI
requests that, instead of changing the regulations to accommodate
specific technologies, the Commission evaluate new technologies under
statutory criteria and the goals of PURPA to ensure a level playing
field for all technologies.
    28. Bloom Energy filed comments reiterating its support for the
revision of the Commission's PURPA Regulations, contending that the
revised definition ``represents a narrow, targeted form of regulatory
relief necessary to ensure `continuing progress in the development of
efficient electric energy generating technology' and . . . would not
impact the application of the `fundamental use test' or the existing
operating standards applicable to cogeneration facilities.'' \45\ Bloom
Energy asserts that fuel cells provide several public policy benefits
such as grid reliability and resiliency of electric supply. Bloom
Energy includes a Joint Declaration from former Commissioners Vicky A.
Bailey, Norman C. Bay, Nora Mead Brownell, Suedeen G. Kelly, and
William L. Massey, who note their support of the NOPR and state that
the ``proposed change is consistent with the statutory text of PURPA
and the definition of `cogeneration facility' in the [FPA]. . . .''
\46\ Subsequently, Bloom Energy filed reply comments in response to the
comments of FuelCell Energy and EEI.
---------------------------------------------------------------------------

    \45\ Bloom Energy Comments at 7 (referencing Bloom Energy
Petition at 1-2) (internal quotations omitted).
    \46\ Bloom Energy Comments, Joint Declaration at 3.
---------------------------------------------------------------------------

V. Discussion

    29. In this final rule, we adopt a revision to the definition of a
topping-cycle cogeneration facility in section 292.202(h) of the PURPA
Regulations, as proposed in the NOPR, with one modification, to include
all fuel cells that use waste heat in an integrated fuel reforming
process, instead of limiting the type of eligible fuel cells to only
solid oxide fuel cells.\47\
---------------------------------------------------------------------------

    \47\ We recognize that the integrated fuel reforming process can
use hydrocarbons other than just natural gas but also, e.g., bio-
gas. The regulatory text's reference to ``an integrated steam
hydrocarbon reformation process'' thus encompasses not only use of
natural gas in the reformation process but also use of other
hydrocarbons such as bio-gas.

---------------------------------------------------------------------------

    30. The statutory definition of cogeneration facilities requires
only that a cogeneration facility produce ``(i) electric energy, and
(ii) steam or forms of useful energy (such as heat) which are used for
industrial, commercial, heating or cooling purposes . . . .'' \48\ This
definition explicitly provides for steam or other forms of useful
energy to be used for an industrial purpose. Because, as described
above, a fuel cell system with an integrated hydrocarbon reformation
process creates useful thermal energy in that it is used for an
industrial purpose--here, producing a commercially valuable fuel,
hydrogen--it fits within this statutory definition. Phrased
differently, fuel cell systems with integrated hydrocarbon reformation
equipment produce two forms of useful energy: Electric energy and heat/
steam (thermal energy) which can be used to produce hydrogen (from
which chemical energy can be used to produce electric energy).
---------------------------------------------------------------------------

    \48\ 16 U.S.C. 796(18)(A).
---------------------------------------------------------------------------

    31. Currently, the Commission's PURPA Regulations as adopted in
1980 provide that a topping-cycle cogeneration facility is a
cogeneration facility in which the energy input to the facility is
first used to produce useful power output and at least some of the
reject heat from the power production process is then used to provide
useful thermal energy.\49\ Fuel cell systems with integrated
hydrocarbon reformation equipment convert the chemical energy of the
methane within natural gas into hydrogen and, ultimately, electricity
using a steam-methane reformation process,\50\ which converts the
natural gas input to hydrogen, which reacts with oxygen in the fuel
cell to produce electricity. The by-product of the fuel cell's
production of electricity is heat and steam, some of which is used in
the integrated hydrocarbon reformation process to convert more natural
gas into hydrogen, which the fuel cells use, in combination with oxygen
from the air, to produce electricity.
---------------------------------------------------------------------------

    \49\ 18 CFR 292.202(d).
    \50\ As explained in the NOPR, and described again above,
industrial gas manufacturers also produce hydrogen from natural gas
using a steam-methane reformation process but must produce their own
steam, usually through combustion of some of the input natural gas.
Because the buyers of the resulting hydrogen are usually remote from
the industrial gas manufacturer, this hydrogen is either compressed
or liquified in order to transport the hydrogen to the end user.
Integrating the hydrocarbon reformation process into a fuel cell
system increases efficiency and avoids the energy loss of external
reformation and compression or liquefaction for surface
transportation.
---------------------------------------------------------------------------

    32. A cogeneration facility is, per the statute, one that
``produces electric energy as well as steam or forms of useful energy
(such as heat) which are used for industrial, commercial, heating or
cooling purposes.'' \51\ Consistent with this language, fuel cell
systems with integrated hydrocarbon reformation equipment do exactly
that and thus can be cogeneration facilities. Fuel cells, as noted
above, generate two forms of useful energy--electricity and the heat/
steam (thermal energy) that is used to produce hydrogen. The Commission
thus amends its PURPA Regulations to provide that the production of
heat/steam by a fuel cell system with an integrated hydrocarbon
reformation process to produce hydrogen yields a ``useful thermal
energy output'' made available to an industrial process that entitles
such a system, consistent with the statute's requirements for a
cogeneration facility, to be considered a topping cycle cogeneration
facility that can qualify, subject to meeting the other relevant
requirements,\52\ to be a QF. The technological advances in fuel cells
that have occurred since 1980 were neither known nor anticipated when
the Commission adopted its original definitions for useful thermal
energy, but that fact should not stand in the way of the Commission now
recognizing such advances and responding accordingly.\53\
---------------------------------------------------------------------------

    \51\ 16 U.S.C. 796(18).
    \52\ See 18 CFR 292.203(b), 292.205. If the facility is a
``new'' cogeneration facility that seeks to sell electric energy
pursuant to PURPA section 210, it will also need to meet the
additional requirements applicable to such facilities. 16 U.S.C.
824a-3(n); 18 CFR 292.205(d).
    \53\ We recognize that, in EG&G, Inc., the Commission stated
that, for cogeneration, ``the use of thermal energy must be
completely independent of the power production process.'' EG&G,
Inc., 16 FERC at 61,104. Even aside from the fact that that order
did not involve fuel cells, it was issued under the regulations then
effective, which we revise here. See id. at 61,103-04. In short, it
was based on the regulations as adopted in 1980, and it has now been
overtaken by the change in the PURPA Regulations adopted today.
---------------------------------------------------------------------------

    33. In sum, recognizing technological advancements over the past 40
years and Congress's commitment to ``continuing progress in the
development of efficient electric energy generating technology,'' \54\
and in light of the development and commercialization of fuel cell
systems with integrated hydrocarbon reformation equipment since the
original adoption of the PURPA Regulations, we amend section 292.202(h)
of the PURPA Regulations by adding a new paragraph to provide that
``useful thermal energy output'' includes the thermal energy that is
used by a fuel cell system with an integrated steam hydrocarbon
reformation process for production of hydrogen to be used, ultimately,
as fuel for electricity generation.
---------------------------------------------------------------------------

    \54\ 16 U.S.C. 824a-3(n)(1)(A)(iii).
---------------------------------------------------------------------------

    34. We also note that the thermal energy output, i.e., the waste
heat, from the fuel cell that is used to reform natural gas into
hydrogen fuel is used in a sequential process to create additional
electricity and is more efficient and uses less fuel than fuel cells
without integrated fuel reforming systems. This technology did not
exist when the Commission established the regulations in Order No. 70.
In this final rule, we now update our cogeneration regulations to
include fuel cells with an integrated steam hydrocarbon reformation
process. Combined-cycle electric generation, while admittedly a more
efficient form of electric generation than, for example, a combustion
turbine, is still not the same thing as a fuel cell system with an
integrated steam hydrocarbon reformation process and does not warrant
being identified as a qualifying facility.
    35. FuelCell Energy argues that the NOPR proposal endorsed a
specific technology, solid oxide fuel cells, instead of establishing
standards that would apply to all similar fuel cells. We agree. The
Commission has not endorsed specific types of solar panels, for
example, in defining small power production facilities. Here, as
FuelCell Energy recognizes, the focus should be on the integrated use
of waste heat for reforming hydrocarbons to produce hydrogen to fuel a
fuel cell, instead of the specific fuel cell technology utilized to
accomplish that goal (i.e., solid oxide or carbonate). As such, we
modify the proposed definition in the NOPR to state that useful thermal
energy output includes the thermal energy that is used by a fuel cell
system with an integrated steam hydrocarbon reformation process for
production of fuel for electricity generation.
    36. Finally, as we have noted above, we reiterate that ``new''
cogeneration facilities seeking to sell electric energy pursuant to
PURPA section 210 must meet the additional requirements imposed by
PURPA section 210 and the implementing regulations, that the ``thermal
energy output . . . is used in a productive and beneficial manner''
\55\ and that ``[t]he electrical, thermal, chemical and mechanical
output of the cogeneration facility is used fundamentally for
industrial, commercial, residential or institutional purposes and is
not intended fundamentally for sale to an electric

utility.'' \56\ These requirements apply to fuel cell systems subject
to the revised regulations adopted in this final rule.
---------------------------------------------------------------------------

    \55\ 18 CFR 292.205(d)(1).
    \56\ 18 CFR 292.205(d)(2). See also Energy Policy Act of 2005,
Public Law 109-58, 1253, 119 Stat. 594, 967-70 (2005); Order No.
671, 114 FERC ] 61,102, order on reh'g, Order No. 671-A, 115 FERC ]
61,225.
---------------------------------------------------------------------------

VI. Information Collection Statement

    37. The Paperwork Reduction Act \57\ requires each federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information (including reporting,
record keeping, and public disclosure requirements) directed to ten or
more persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements contemplated by proposed rules (including deletion,
revision, or implementation of new requirements).\58\ Upon approval of
a collection of information, OMB will assign an OMB control number and
an expiration date. Respondents subject to the filing requirements of a
rule will not be penalized for failing to respond to the collection of
information unless the collection of information displays a valid OMB
control number.
---------------------------------------------------------------------------

    \57\ 44 U.S.C. 3501-21.
    \58\ See 5 CFR 1320.11.
---------------------------------------------------------------------------

    Public Reporting Burden: The Commission is revising its regulations
implementing PURPA. The revision provides that useful thermal energy
outputs will now include the thermal energy ``that is used by a fuel
cell system with an integrated steam hydrocarbon reformation process
for production of fuel for electricity generation.'' Below, the table
includes estimated changes to the burden and cost of the FERC Form No.
556A \59\ due to this final rule. As demonstrated by the table, we
believe that some respondents may file multiple Form No. 556As in order
to avail themselves of the revision in the regulations adopted
above.\60\
---------------------------------------------------------------------------

    \59\ The change to the FERC-556 to reflect the change in the
regulations adopted by this final rule is being submitted under a
temporary interim information collection number, FERC-556A (OMB
Control No. 1902-0316) because another change to FERC-556 (OMB
Control No. 1902-0075) is pending OMB review and only one change per
OMB Control No. can be pending for OMB review at a time.
    \60\ The changes to the FERC Form No. 556 adopted in Order No.
872 are pending OMB review (under ICR #202006-1902-004). Those
changes are separate and are not affected by or addressed in this
final rule.

      FERC-556A, Certification of Qualifying Facility Status for a Small Power Production or Cogeneration Facility,Changes Due to Final Rule in Docket Nos. RM21-2-000 and RM20-20-000 \61\
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Annual cost
                                                                  Number of     Annual number   Total number    Average burden hours & cost per   Total annual burden hours & total      per
            Facility type                   Filing type          respondents    of responses    of responses                response                         annual cost              respondent
                                                                               per respondent                                                                                ($)
                                                                          (1)             (2)     (1) * (2) =  (4)..............................  (3) * (4) = (5)..................    (5) / (1)
                                                                                (3)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Cogeneration Facility <= 1 MW \62\..  Self-certification.....               5        \63\ 600           3,000  1.5 hrs.; $124.50................  4,500 hrs.; $373,500.............      $74,700
Cogeneration Facility > 1 MW........  Self-certification.....               5              20             100  1.5 hrs.; $124.50................  1,500 hrs.; $12,450..............        2,490
Cogeneration Facility > 1 MW........  Application for FERC                  5               1               5  50 hrs.; $4,150..................  250 hrs.; $20,750................        4,150
                                       certification.
                                     -----------------------------------------------------------------------------------------------------------------------------------------------------------
    FERC-556A, TOTAL ADDITIONAL       .......................              15  ..............           3,105  .................................  6,250 hrs.; $406,700.............  ...........
     BURDEN AND COST DUE TO final
     rule in RM21-2 and RM20-20.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------

    Title: FERC-556A (Certification of Qualifying Facility (QF) Status
for a Small Power Production or Cogeneration Facility)
---------------------------------------------------------------------------

    \61\ The figures in this table reflect estimated changes to the
current OMB-approved inventory for the FERC Form No. 556. Commission
Information Collection Activities (FERC-556); Comment Request;
Extension, Docket No. IC19-16-000 (issued May 15, 2019 and approved
by OMB on November 18, 2019). The above table only reflects
cogeneration facilities because small power production facilities
will not be affected by the changes in this final rule. The
Commission staff believes that the industry is similarly situated to
the Commission in terms of wages and benefits. Therefore, cost
estimates are based on FERC's 2020 average hourly wage (and
benefits) of $83.00/hour.
    \62\ Such facilities are not required to file but have the
choice whether to do so.
    \63\ Bloom Energy has stated they have 600 facilities, each with
an average size of 0.6 MW, see Bloom Energy Petition at 14, which,
if they all were in fact to file, would result in as many as 600
self-certifications of below-1 MW facilities. The Commission
accordingly will adopt a conservative approach and estimate 600 such
responses over the course of a year, which is especially
conservative given that the Commission's regulations do not require
below-1 MW facilities to submit self-certifications.
---------------------------------------------------------------------------

    While FuelCell Energy also states that, to date, it has over 250 MW
of fuel cells

(but of unknown size) installed, in backlog, or under award on three
continents, our burden estimate of as many as five respondents self-
certifying up to 600 units annually each is sufficiently large to
encompass any such self-certifications.
    Action: Revisions to existing information collection FERC-556-
A.\64\
---------------------------------------------------------------------------

    \64\ The FERC Form No. 556 is not being revised, but respondents
with fuel cell systems with integrated natural gas reformation
equipment who are self-certifying or requesting Commission
certification as a cogenerator will use the FERC Form No. 556. On
page 8, item 6a of the FERC Form No. 556, those respondents should
indicate ``Fossil fuel, natural gas (not waste).''
---------------------------------------------------------------------------

    OMB Control No.: 1902-0316.
    Respondents: Facilities that are self-certifying their status as a
cogenerator or that are submitting an application for Commission
certification of their status as a cogenerator.
    Frequency of Information: Ongoing.
    Necessity of Information: The Commission directs the changes in
this final rule in order to revise its implementation of PURPA in light
of technological advancements in electric generation since the
enactment of PURPA in 1978.
    Internal Review: The Commission has reviewed the proposed changes
and has determined that such changes are necessary. These requirements
conform to the Commission's ongoing need for efficient information
collection, communication, and management within the energy industry,
in light of technological advancements in electric generation.
    Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission,
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown,
Office of the Executive Director], by email to<EMAIL_ADDRESS>
or by phone<PHONE_NUMBER>.
    Please send comments concerning the collection of information and
the associated burden estimates to: Office of Information and
Regulatory Affairs, Office of Management and Budget [Attention: Federal
Energy Regulatory Commission Desk Officer]. Due to security concerns,
comments should be sent directly to www.reginfo.gov/public/do/PRAMain.
Comments submitted to OMB should be sent within 30 days of publication
of this notice in the Federal Register and should refer to FERC-556
(OMB Control No. 1902-0075).

VII. Environmental Analysis

    38. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\65\ Whether
and how the changes adopted here, however, would affect QF development
and the environment is speculative.
---------------------------------------------------------------------------

    \65\ Regulations Implementing the National Environmental Policy
Act, Order No. 486, 52 FR 47,897 (Dec. 17, 1987), FERC Stats. &
Regs. ] 30,783 (1987)) (cross-referenced at 41 FERC ] 61,284).
---------------------------------------------------------------------------

    39. The changes to the PURPA Regulations do not authorize or fund
particular generation that may happen to qualify as QFs, nor do they
license or issue permits for operation of generation that may happen to
qualify as QFs; such generation can be built and operated independent
of, i.e., without, QF certification. They do not authorize or prohibit
a generator's use of any particular technologies or fuels, nor do they
mandate or limit where QFs should or should not be built. They do not
exempt QFs from any Federal, state or local environmental, siting, or
other similar laws or regulatory requirements. Given these facts any
environmental impact analysis of the revisions proposed here would be
speculative and not meaningfully inform the Commission or the public of
the revisions' impact on QF development or, correspondingly, of any
associated potential impacts on the environment; there are, in short,
no reasonably foreseeable environmental impacts for the Commission to
consider.\66\ Moreover, the revisions proposed here would apply only to
a limited number of QFs: Fuel cell systems with integrated hydrocarbon
reformation equipment. Therefore, the Commission will not prepare an
environmental document.
---------------------------------------------------------------------------

    \66\ While courts have held that NEPA requires ``reasonable
forecasting,'' an agency is not required ``to engage in speculative
analysis'' or ``to do the impractical, if not enough information is
available to permit meaningful consideration.'' N. Plains Res.
Council v. Surface Transp. Board, 668 F.3d 1067, 1078 (9th Cir.
2011).
---------------------------------------------------------------------------

VIII. Regulatory Flexibility Act

    40. The Regulatory Flexibility Act of 1980 (RFA) \67\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
In lieu of preparing a regulatory flexibility analysis, an agency may
certify that a proposed rule will not have a significant economic
impact on a substantial number of small entities.\68\
---------------------------------------------------------------------------

    \67\ 5 U.S.C. 601-12.
    \68\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

    41. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\69\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\70\ Under SBA's current size
standards, the threshold for a small entity (including its affiliates)
is 250 employees for cogeneration in the NAICS \71\ category: NAICS
code 221118 for Other Electric Power Generation.
---------------------------------------------------------------------------

    \69\ 13 CFR 121.101.
    \70\ SBA final rule on ``Small Business Size Standards:
Utilities,'' 78 FR 77,343 (Dec. 23, 2013).
    \71\ The North American Industry Classification System (NAICS)
is an industry classification system that Federal statistical
agencies use to categorize businesses for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry
Classification System, https://www.census.gov/eos/www/naics/
(accessed October 4, 2020).
---------------------------------------------------------------------------

    42. This rule directly affects cogeneration facilities, the
majority of which the Commission estimates are small businesses.
However, the Commission does not expect the revision to affect a
substantial number of small entities. This final rule directly affects
only certain QFs, i.e., those that are fuel cell systems with
integrated steam hydrocarbon reformation equipment; this rule is
voluntary. That is, this final rule expands the types of cogenerators
that would be eligible to qualify as QFs to include fuel cell systems
with integrated steam hydrocarbon reformation equipment, but this final
rule does not require fuel cell systems with integrated steam
hydrocarbon reformation equipment to file for QF certification. The
Commission does not anticipate that the number of affected small
entities would be substantial, nor does the Commission expect that any
additional reporting burden or cost imposed on QFs, regardless of their
status as a small or large business, would be significant.\72\ The
Commission estimates that annual additional compliance costs on
industry (detailed above) will be approximately $406,700 to comply with
these requirements.
---------------------------------------------------------------------------

    \72\ The average cost per response is estimated to vary from
$124.50 for self-certifications to $4,150 for applications for FERC
certification. The cost per respondent will vary based on the
respondent's number of facilities and related requests for self-
certification and applications for Commission certification (with an
estimated cost ranging from $2,490 to $74,700 per respondent).
---------------------------------------------------------------------------

    43. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this rule will not have a significant
economic impact on a substantial number of small entities.

IX. Document Availability

    44. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this

document via the internet through the Commission's Home Page (http://www.ferc.gov). At this time, the Commission has suspended access to the
Commission's Public Reference Room due to the President's March 13,
2020 proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
    45. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
    46. User assistance is available for eLibrary and the Commission's
website during normal business hours from FERC Online Support at 202-
502-6652 (toll free at 1-866-208-3676) or email at
<EMAIL_ADDRESS>or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
<EMAIL_ADDRESS>
X. Effective Date and Congressional Notification

    47. These regulations are effective April 5, 2021. The Commission
has determined, with the concurrence of the Administrator of the Office
of Information and Regulatory Affairs of OMB, that this rule is not a
``major rule'' as defined in section 351 of the Small Business
Regulatory Enforcement Fairness Act of 1996. This final rule is being
submitted to the Senate, House, Government Accountability Office, and
Small Business Administration.

List of Subjects in 18 CFR Part 292

    Electric power plants, Electric utilities, Reporting and
recordkeeping requirements.

    By the Commission. Commissioner Clements is not participating.
    Issued: December 17, 2020.
Kimberly D. Bose,
Secretary.

    In consideration of the foregoing, the Commission amends part 292,
chapter I, title 18, Code of Federal Regulations, as follows:

PART 292--REGULATIONS UNDER SECTIONS 201 AND 210 OF THE PUBLIC
UTILITY REGULATORY POLICIES ACT OF 1978 WITH REGARD TO SMALL POWER
PRODUCTION AND COGENERATION

0
1. The authority citation for part 292 continues to read as follows:

    Authority:  16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42
U.S.C. 7101-7352.

0
2. Amend Sec.  292.202 by revising paragraphs (h)(2) and (3) and adding
paragraph (h)(4) to read as follows:

Sec.  292.202  Definitions.

* * * * *
    (h) * * * :
    (2) That is used in a heating application (e.g., space heating,
domestic hot water heating);
    (3) That is used in a space cooling application (i.e., thermal
energy used by an absorption chiller); or
    (4) That is used by a fuel cell system with an integrated steam
hydrocarbon reformation process for production of fuel for electricity
generation.
* * * * *
[FR Doc. 2021-01988 Filed 2-3-21; 8:45 am]
BILLING CODE 6717-01-P