[Federal Register Volume 82, Number 107 (Tuesday, June 6, 2017)]
[Proposed Rules]
[Pages 26017-26019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11221]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 423

[EPA-HQ-OW-2009-0819; FRL-9962-51-OW]
RIN 2040-AF76


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: In response to administrative petitions for reconsideration, 
the Environmental Protection Agency (EPA) proposes to postpone certain 
compliance dates in 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. 
Specifically, EPA proposes to postpone the compliance dates for the 
new, and more stringent, best available technology economically 
achievable (``BAT'') effluent limitations and pretreatment standards 
for each of the following wastestreams: Fly ash transport water, bottom 
ash transport water, flue gas desulfurization (``FGD'') wastewater, 
flue gas mercury control wastewater, and gasification wastewater. These 
compliance dates would be postponed until EPA completes reconsideration 
of the 2015 Rule.

DATES: Comments on this proposed rule must be received on or before 
July 6, 2017.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0819, at http://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. The EPA may publish any 
comment received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e. on the web, cloud, or other 
file sharing system). For additional submission methods, the full EPA 
public comment policy, information about CBI or multimedia submissions, 
and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Contact Ronald Jordan, United States 
Environmental Protection Agency, Engineering and Analysis Division; 
telephone number: (202) 564-1003; 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 
proposed rule are also available at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION:

I. Background and Discussion of Postponement

    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, Southwestern Electric Power Co., et 
al. v. EPA, No. 15-60821.
    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. UWAG 
supplemented its petition with additional information in a letter dated 
April 13, 2017. In a letter dated April 5, 2017, the Small Business 
Administration (SBA) Office of Advocacy sent EPA a second petition for 
reconsideration of the Rule, which expressly supports the UWAG's 
petition and raises issues that SBA considers are pertinent to small 
businesses. The petitions raise wide-ranging and sweeping objections to 
the Rule.\2\ Among other things, the UWAG petition 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. EPA wishes to review these data. 
UWAG also requested that EPA

[[Page 26018]]

suspend or delay the ``rule's fast-approaching compliance deadlines 
while EPA works to reconsider and revise, as appropriate, the 
substantive requirements of the current rule.''
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    \1\ According to the petition, 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 and the supplemental information 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. On April 14, 2017, the EPA requested that the 
Fifth Circuit hold the case in abeyance while the Agency undertakes 
reconsideration. On April 24, 2017, the Fifth Circuit granted the 
motion and placed the case in abeyance.
    The earliest compliance date for the new, and more stringent, BAT 
effluent limitations and pretreatment standards is November 1, 2018, 
for each of the following wastestreams: Fly ash transport water, bottom 
ash transport water, FGD wastewater, flue gas mercury control 
wastewater, and gasification wastewater. As UWAG pointed out in its 
April 13, 2017 letter ``a rule of this magnitude and complexity 
requires substantial time to come into compliance for multiple 
wastestreams. Detailed studies and planning, followed by large capital 
expenditures and subsequent installation and testing, are time-
consuming.'' Companies have been evaluating their compliance options 
and are reaching the point at which they will be committing funds, 
incurring costs, or commencing construction to install technologies. In 
light of these imminent planning and 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 no later than November 1, 2018, for 
indirect dischargers--the Agency views that it is appropriate to 
postpone the compliance dates of the Rule that have not yet passed. 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 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, as well as relief from the 
certain deadlines under the Rule while EPA considers the issues raised 
by petitioners. The postponement of compliance dates through this 
action is intended as a temporary, stopgap measure to prevent the 
unnecessary expenditure of resources until EPA completes 
reconsideration of the 2015 rule. EPA solicits comments on whether this 
postponement should be for a specified period of time, for example, two 
years.
    In a separate action, EPA administratively postponed certain 
compliance dates in the rule pursuant to Section 705 of the 
Administrative Procedure Act (``APA''), 5 U.S.C. 705, which states that 
``[w]hen an agency finds that justice so requires, it may postpone the 
effective date of action taken by it pending judicial review.'' Because 
Section 705 of the APA authorizes an Agency to postpone the effective 
date of an action pending judicial review, EPA is undertaking this 
notice-and-comment rulemaking to postpone certain compliance dates in 
the rule in the event that the litigation ends, and while the Agency is 
undertaking reconsideration. These compliance dates would be postponed 
until EPA promulgates a final rule specifying compliance dates.

II. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review; and, 
Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action as that term is 
defined in Executive Order 12866 (58 FR 51735, October 4, 1993). 
Accordingly, this proposed rule is not subject to requirements of E.O. 
12866 that apply to significant regulatory actions.

B. Paperwork Reduction Act

    This proposed rule does not involve any information collection 
activities subject to the PRA, 44 U.S.C. 3501 et seq.

C. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under RFA, 5 U.S.C. 
601 et seq.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments.

E. Executive Order 13132: Federalism

    This action does not have federalism implications, as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action does not have Tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000).

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This proposed rule is not subject to Executive Order 13045 (62 FR 
19885, April 23, 1997) because EPA previously determined that the 
environmental health risks or safety risks addressed by the 
requirements EPA is proposing to postpone do not present a 
disproportionate risk to children.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355, 
May 22, 2001), because it is not a significant regulatory action under 
Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards that would 
require Agency consideration under NTTAA section 12(d), 15 U.S.C. 272 
note.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    This is a proposal to delay action, and it does not change the 
requirements of the effluent limitations guidelines and standards 
published in 2015. While the proposed postponement in compliance dates 
could delay the protection the 2015 rule would afford to all 
communities, including those impacted disproportionately by the 
pollutants in certain wastewater discharges, this action will not 
change any impacts of the 2015 rule when it is fully implemented. The 
EPA therefore believes it is more appropriate to consider the impact on 
minority and low-income populations in the context

[[Page 26019]]

of possible substantive changes as part of any reconsideration of the 
2015 rule.

List of Subjects in 40 CFR Part 423

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

    Dated: May 25, 2017.
E. Scott Pruitt,
Administrator.


0
Therefore, 40 CFR Chapter I is proposed to be amended as follows:

PART 423--STEAM ELECTRIC POWER GENERATING POINT SOURCE CATEGORY

0
1. The authority citation for part 423 continues to read as follows:

    Authority: Secs. 101; 301; 304(b), (c), (e), and (g); 306; 307; 
308 and 501, Clean Water Act (Federal Water Pollution Control Act 
Amendments of 1972, as amended; 33 U.S.C. 1251; 1311; 1314(b), (c), 
(e), and (g); 1316; 1317; 1318 and 1361).

0
2. Section 423.10 is amended by designating the undesignated paragraph 
as paragraph (a) and adding paragraph (b) to read as follows:


Sec.  423.10  Applicability.

* * * * *
    (b) The compliance dates specified in Sec. Sec.  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) are postponed.

0
3. Section 423.13 is amended by revising the introductory text to read 
as follows:


Sec.  423.13   Effluent limitations guidelines representing the degree 
of effluent reduction attainable by the application of the best 
available technology economically achievable (BAT).

    Except as provided in 40 CFR 125.30 through 125.32, any existing 
point source subject to this part must achieve the following effluent 
limitations representing the degree of effluent reduction attainable by 
the application of the best available technology economically 
achievable (BAT). For applicability of the requirements in Sec. Sec.  
423.13(g)(1)(i), (h)(1)(i), (i)(1)(i), (j)(1)(i), and (k)(1)(i), see 
Sec.  423.10(b).
* * * * *
0
4. Section 423.16 is amended by revising the introductory text to read 
as follows:


Sec.  423.16  Pretreatment standards for existing sources (PSES).

    Except as provided in 40 CFR 403.7 and 403.13, any existing source 
subject to this subpart which introduces pollutants into a publicly 
owned treatment works must comply with 40 CFR part 403 and achieve the 
following pretreatment standards for existing sources (PSES) by July 1, 
1984. For applicability of the requirements in Sec. Sec.  423.16(e), 
(f), (g), (h), and (i), see Sec.  423.10(b).
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[FR Doc. 2017-11221 Filed 6-5-17; 8:45 am]
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