[Federal Register Volume 86, Number 146 (Tuesday, August 3, 2021)]
[Proposed Rules]
[Pages 41801-41802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16354]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 423

[FRL 8794-04-OW]


Effluent Limitations Guidelines and Standards for the Steam 
Electric Power Generating Point Source Category.

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of rulemaking initiative.

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SUMMARY: In accordance with President Biden's Executive Order 13990, 
Protecting Public Health and the Environment and Restoring Science to 
Tackle the Climate Crisis (January 25, 2021), the U.S. Environmental 
Protection Agency (EPA) announces its decision to undertake a 
rulemaking that will propose to revise the Steam Electric Power 
Generating Effluent Limitations Guidelines and Standards. As part of 
the rulemaking process, EPA will determine whether more stringent 
limitations and standards are appropriate and consistent with the 
technology-forcing statutory scheme and the goals of the Clean Water 
Act. EPA intends to sign the notice of proposed rulemaking for public 
comment in the Fall of 2022.

DATES: August 3, 2021.

ADDRESSES: U.S. Environmental Protection Agency, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460;

FOR FURTHER INFORMATION CONTACT: Richard Benware, Engineering and 
Analysis Division, Office of Water, (4303T), U.S. Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: (202) 566-1369, 1200; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Among its core provisions, the Clean Water 
Act (CWA) prohibits the discharge of pollutants from a point source to 
waters of the U.S., except as authorized under the CWA. Under section 
402 of the CWA, 33 U.S.C. 1342, discharges may be authorized through a 
National Pollutant Discharge Elimination System (NPDES) permit. The CWA 
establishes a dual approach for these permits: (1) Technology-based 
controls that establish a floor of performance for all dischargers, and 
(2) water quality-based effluent limitations, where the technology-
based effluent limitations are insufficient to meet applicable water 
quality standards (WQS). As the basis for the technology-based 
controls, the CWA authorizes EPA to establish national technology-based 
effluent limitations guidelines (ELGs) and new source performance 
standards (NSPS) for discharges into waters of the United States from 
categories of point sources (such as industrial, commercial, and public 
sources). For discharges to publicly owned treatment works (POTWs), 
sections 301, 306 and 307 of the CWA call for establishment of 
pretreatment standards, which are analogous to effluent limitations, 
which directly apply to new and existing sources.
    Clean Water Act section 301(b)(2)(A) requires that, by March 31, 
1989, existing discharges of toxic and non-conventional pollutants must 
be limited based on ``best available technology economically achievable 
. . . which will result in reasonable further progress toward the 
national goal of eliminating the discharge of all pollutants, as 
determined in accordance with regulations issued . . . pursuant to 
section 304(b)(2) of the Act.'' Furthermore, such limitations ``shall 
require the elimination of discharges of all pollutants if the 
Administrator finds . . . that such elimination is technologically and 
economically achievable'' for the industry, ``as determined in 
accordance with regulations issued . . . pursuant to section 
304(b)(2).'' Section 304(b)(2) provides that ``[f]actors relating to 
the assessment of best available technology shall take into account the 
age of equipment and facilities involved, the process employed, the 
engineering aspect of the application of various types of control 
techniques, process changes, the cost of achieving such effluent 
reduction, non-water quality environmental impact (including energy 
requirements), and such other factors as the Administrator deems 
appropriate.'' The Agency is afforded considerable discretion in how to 
weigh these factors in making the ultimate decision as to what 
constitutes ``best available technology economically Achievable.'' See, 
e.g., Weyerhaeuser Co. v. Costle, 590 F.2d 1011, 1045 (DC Cir. 1978).
    In September 2015, EPA finalized a rule revising the regulations 
for the Steam Electric Power Generating point source category 80 FR 
67838 (Nov. 3, 2015). This 2015 rule set limits on the levels of toxic 
metals in wastewater that can be discharged from power plants. 
Subsequent to the promulgation of the 2015 rule, the Agency received 
two

[[Page 41802]]

petitions for administrative reconsideration. In response, EPA agreed 
to reconsider the Effluent Guidelines for two wastestreams (flue gas 
desulfurization and bottom ash transport water) and the Steam Electric 
Reconsideration Rule was published in October 2020.
    On January 20, 2021, President Biden signed Executive Order 13990 
directing federal agencies to review rules issued in the prior four 
years that are, or may be, inconsistent with the policy stated in the 
Order. 86 FR 7037. The Order provides that ``[i]t is, therefore, the 
policy of my Administration to listen to the science; to improve public 
health and protect our environment; to ensure access to clean air and 
water; to limit exposure to dangerous chemicals and pesticides; to hold 
polluters accountable, including those who disproportionately harm 
communities of color and low-income communities; to reduce greenhouse 
gas emissions; to bolster resilience to the impacts of climate change; 
to restore and expand our national treasures and monuments; and to 
prioritize both environmental justice and the creation of the well-
paying union jobs necessary to deliver on these goals.'' Id. at 7037, 
Section 1. The Order ``directs all executive departments and agencies 
(agencies) to immediately review and, as appropriate and consistent 
with applicable law, take action to address the promulgation of Federal 
regulations and other actions during the last 4 years that conflict 
with these important national objectives, and to immediately commence 
work to confront the climate crisis.'' Id. ``For any such actions 
identified by the agencies, the heads of agencies shall, as appropriate 
and consistent with applicable law, consider suspending, revising, or 
rescinding the agency actions.'' Id. at 7037, Section 2(a). The 2020 
Steam Electric Reconsideration Rule was identified for review under the 
Executive Order. See Fact Sheet: List of Agency Actions for Review, 
available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/ (last 
visited on April 26, 2021).
    EPA has completed its review of the 2020 Steam Electric 
Reconsideration Rule under Executive Order 13990 and has decided to 
initiate a notice-and-comment rulemaking in which the Agency will 
determine whether more stringent limitations and standards are 
appropriate consistent with the technology-forcing statutory scheme and 
the goals of the Clean Water Act.
    EPA's review found that much of the 2015 steam electric rule 
remains in place--leading to better control of water pollution from 
power plants than required by the previously applicable rules. The 2015 
rule also had the effect of reducing the cost of controls (e.g., 
biological treatment systems and membrane treatment systems), which are 
now being utilized by the power sector. While the Agency undertakes 
this new rulemaking, facilities will continue to be subject to the 
requirements of the 2015 Rule, as amended by the 2020 Rule, which are 
currently effective. As a result, the pollutant reductions accomplished 
by the existing Rules will occur while the Agency engages in rulemaking 
to consider more stringent requirements.
    EPA's review under Executive Order 13990 also found that membrane 
treatment systems continue to rapidly advance as an effective option 
for treating a wide variety of industrial wastewater. EPA expects this 
technology to continue to advance, and EPA will evaluate whether this 
technology should serve as the basis for the ``best available 
technology economically achievable'' under the Clean Water Act to 
control discharges of pollutants found in flue gas desulfurization 
wastewater discharges as part of the new rulemaking, in addition to 
considering whether revisions to the 2020 Rule's requirements 
applicable to bottom ash transport water and the three subcategories, 
which are afforded less stringent limits than those otherwise 
applicable under the Rule, may be warranted.
    EPA expects permitting authorities to continue to implement the 
current regulations while the Agency undertakes a new rulemaking. EPA 
will determine whether more stringent limitations than those in the 
2020 Rule appropriately reflect ``best available technology 
economically achievable.'' EPA will undertake this rulemaking in 
accordance with the requirements specified in the Administrative 
Procedures Act and the Clean Water Act, as required by law.

Radhika Fox,
Assistant Administrator.
[FR Doc. 2021-16354 Filed 7-30-21; 4:15 pm]
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