[Federal Register Volume 82, Number 78 (Tuesday, April 25, 2017)]
[Rules and Regulations]
[Pages 19005-19006]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-07811]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 423

[EPA-HQ-OW-2009-0819; FRL-9961-67-OW]
RIN 2040-AF14


Postponement of Certain Compliance Dates for Effluent Limitations 
Guidelines and Standards for the Steam Electric Power Generating Point 
Source Category

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notification; postponement of compliance dates.

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SUMMARY: By a letter dated April 12, 2017, the Administrator announced 
the EPA decision to reconsider the final rule that amends the effluent 
limitations guidelines and standards for the steam electric point 
source category under the Clean Water Act (``CWA''), published in the 
Federal Register on November 3, 2015. These regulations have been 
challenged in the U.S. Court of Appeals for the Fifth Circuit, 
Southwestern Electric Power Co., et al. v. EPA, No. 15-60821. The EPA 
is postponing these compliance dates pending judicial review.

DATES: April 25, 2017.

ADDRESSES: EPA has established a docket for the Rule amending 40 CFR 
part 423 under Docket ID No. EPA-HQ-OW-2009-0819. All documents in the 
docket are listed on the http://www.regulations.gov Web site.

FOR FURTHER INFORMATION CONTACT: For technical information, contact 
Ronald Jordan, United States Environmental Protection Agency, 
Engineering and Analysis Division; telephone number: (202) 564-1003; 
email address: [email protected]. For information related to NPDES 
permitting of these facilities, contact Sean Ramach at (202) 564-2865, 
email address: [email protected].
    Electronic copies of this document and related materials are 
available on EPA's Web site at https://www.epa.gov/eg/steam-electric-power-generating-effluent-guidelines-2015-final-rule. Copies of this 
notification are also available at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 3, 2015, the EPA issued a final rule amending 40 CFR 
part 423, the effluent limitations guidelines and standards for the 
steam electric power generating point source category, under Sections 
301, 304, 306, 307, 308, 402, and 501 of the CWA (33 U.S.C. 1311, 1314, 
1316, 1317, 1318, 1342, and 1361). The amendments addressed and 
contained limitations and standards on various wastestreams at steam 
electric power plants: Fly ash transport water, bottom ash transport 
water, flue gas mercury control wastewater, flue gas desulfurization 
(``FGD'') wastewater, gasification wastewater, and combustion residual 
leachate. Collectively, this rulemaking is known as the ``Effluent 
Limitations Guidelines and Standards for the Steam Electric Power 
Generating Point Source Category'' (``Rule''). For further information 
on the Rule, see 80 FR 67838 (Nov. 3, 2015).
    EPA received seven petitions for review of the Rule. The United 
States Judicial Panel on Multi-District Litigation issued an order on 
December 8, 2015, consolidating all of the petitions in the U.S. Court 
of Appeals for the Fifth Circuit. Petitioners have filed their briefs, 
and EPA's brief is currently due by May 4, 2017.
    In a letter dated March 24, 2017, the Utility Water Act Group 
(``UWAG'') \1\ submitted a petition for reconsideration of the Rule and 
requested that EPA suspend the Rule's approaching deadlines. In a 
letter dated April 5, 2017, the Small Business Administration Office of 
Advocacy also petitioned the EPA for reconsideration of the Rule. The 
petitions raise wide-ranging and sweeping objections to the Rule, some 
of which overlap with the claims in the ongoing litigation challenging 
the Rule in the U.S. Court of Appeals for the Fifth Circuit.\2\ The 
UWAG petition also points to new data, claiming that plants burning 
subbituminous and bituminous coal cannot comply with the Rule's 
limitations and standards for FGD wastewater through use of EPA's model 
technology. The UWAG petition says that a pilot study has been 
conducted at the Pleasant Prairie plant that supports petitioner's 
request, and that a final report on the pilot study ``is likely to [be] 
publish[ed] . . . within the next few weeks.'' Moreover, the petitions 
say that new data have been collected by American Electric Power that 
``illustrate[ ] that variability in wastewater management can also 
impact performance at bituminous plants such that additional 
technologies beyond EPA's model technology will be needed to achieve 
the limits.'' EPA wishes to review these data.
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    \1\ UWAG is a voluntary, ad hoc, unincorporated group of 163 
individual energy companies and three national trade associations of 
energy companies: Edison Electric Institute, the National Rural 
Electric Cooperative Association, and the American Public Power 
Association.
    \2\ A copy of each petition is included in the docket for this 
rule, Docket ID No. EPA-HQ-OW-2009-0819.
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    In an April 12, 2017 letter to those who submitted the 
reconsideration petitions, the Administrator announced his decision to 
reconsider the Rule (a copy of this letter is included in the docket 
for the Rule). As explained in that letter, after considering the 
objections raised in the reconsideration petitions, the Administrator 
determined that it is appropriate and in the public interest to 
reconsider the Rule. Under Section 705 of the APA (``Administrative 
Procedure Act''), 5 U.S.C. 705, and when justice so requires, an Agency 
may postpone the effective date of action taken by it pending judicial 
review. The earliest compliance dates for the new, and more stringent, 
best available technology economically achievable effluent limitations 
and pretreatment standards is November 1, 2018, for each of the 
following wastestreams: Fly ash transport water, bottom ash transport 
water, flue gas desulfurization wastewater, flue gas mercury control 
wastewater, and gasification wastewater. These dates have not yet 
passed, and they are within the meaning of the term ``effective date'' 
as that term is used in Section 705 of the APA. In light of the capital 
expenditures that facilities incurring costs under the Rule will need 
to undertake in order to meet the compliance deadlines for the new, 
more stringent limitations and standards in the Rule--which are as 
early as November 1, 2018, for direct dischargers and by November 1, 
2018, for indirect dischargers--the Agency finds that justice requires 
it to postpone the compliance dates of the Rule that have not yet 
passed, pending judicial review. See 80 FR 67838, 67863-67868 (Nov. 3, 
2015) (discussion of costs of the Rule). This will preserve the 
regulatory status quo with respect to wastestreams subject to the 
Rule's new, and more stringent, limitations and standards, while the 
litigation is pending and the reconsideration is underway. While EPA is 
not making any concession of error with respect to the rulemaking, the 
far-ranging issues contained in the reconsideration petitions warrant 
careful and considerate review of the Rule. EPA will also file a motion 
requesting the Fifth Circuit to hold the litigation challenging the 
Rule in abeyance while the Agency reconsiders the Rule, after which it 
will inform the

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Court of any portions of the Rule for which it seeks a remand so that 
it can conduct further rulemaking. Separately, EPA intends to conduct 
notice and comment rulemaking to stay the compliance deadlines for the 
new, more stringent limitations and standards in the Rule.

II. Postponement of Compliance Dates

    The EPA hereby issues a postponement of the compliance dates that 
have not yet passed contained in the following sections of the Effluent 
Guidelines and Standards for the Steam Electric Power Generating Point 
Source Category under Section 705 of the APA pending judicial review: 
40 CFR 423.11(t), 423.13(g)(1)(i), (h)(1)(i), (i)(1)(i), (j)(1)(i), and 
(k)(1)(i), and 423.16(e), (f), (g), (h), and (i).

List of Subjects in 40 CFR Part 423

    Environmental protection, Electric power generation, Power plants, 
Waste treatment and disposal, Water pollution control.

    Dated: April 12, 2017.
E. Scott Pruitt,
Administrator.
[FR Doc. 2017-07811 Filed 4-24-17; 8:45 am]
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