41798 Federal Register / Vol. 86, No. 146 / Tuesday, August 3, 2021 / Proposed Rules 

TCCA, Transport Canada National Aircraft 

Certification, 159 Cleopatra Drive, Nepean, 

Ontario K1A 0N5, Canada; telephone 888– 

663–3639; email AD-CN@tc.gc.ca; internet 

https://tc.canada.ca/en/aviation. You may 

view this service information at the FAA, 

Airworthiness Products Section, Operational 

Safety Branch, 2200 South 216th St., Des 

Moines, WA. For information on the 

availability of this material at the FAA, call 

206–231–3195. 

Issued on July 28, 2021. 

Lance T. Gant, 

Director, Compliance & Airworthiness 

Division, Aircraft Certification Service. 

[FR Doc. 2021–16431 Filed 8–2–21; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket Number USCG–2021–0540] 

RIN 1625–AA08 

Special Local Regulations, Choptank 

River, Cambridge, MD 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard is proposing 

to establish special local regulations for 

certain waters of the Choptank River. 

This action is necessary to provide for 

the safety of life on navigable waters 

located at Cambridge, MD, during a 

high-speed power boat racing event on 

October 9, 2021, and October 10, 2021. 

This proposed rulemaking would 

prohibit persons and vessels from being 

in the regulated area unless authorized 

by the Captain of the Port MarylandNational Capital Region or Coast Guard 

Event Patrol Commander. We invite 

your comments on this proposed 

rulemaking. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before September 2, 2021. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2021–0540 using the Federal 

eRulemaking Portal at https://

www.regulations.gov. See the ‘‘Public 

Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section for 

further instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this proposed 

rulemaking, call or email Mr. Ron 

Houck, Waterways Management 

Division, U.S. Coast Guard; telephone 

410–576–2674, email D05-DGSectorMD-NCR-MarineEvents@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

COTP Captain of the Port 

DHS Department of Homeland Security 

Event PATCOM Event Patrol Commander 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background, Purpose, and Legal 

Basis 

The Cambridge Power Boat Regatta 

Association of Cambridge, MD, notified 

the Coast Guard that it will be 

conducting the Cambridge Classic 

Power Boat Regatta from 10 a.m. to 5 

p.m. on October 9, 2021, and from 10 

a.m. to 5 p.m. on October 10, 2021. The 

high-speed power boat racing event 

consists of approximately 60 

participating inboard and outboard 

hydroplane and runabout race boats of 

various classes, 16 to 24 feet in length. 

The vessels will be competing on a 

designated, marked 1-mile oval course 

located in the Choptank River in a cove 

located between Hambrooks Bar and the 

shoreline at Cambridge, MD. Hazards 

from the power boat racing event 

include risks of injury or death resulting 

from near or actual contact among 

participant vessels and spectator vessels 

or waterway users if normal vessel 

traffic were to interfere with the event. 

Additionally, such hazards include 

participants operating near designated 

navigation channels, as well as 

operating near approaches to local 

public boat ramps, private marinas and 

yacht clubs, and waterfront businesses. 

The COTP Maryland-National Capital 

Region has determined that potential 

hazards associated with the power boat 

races would be a safety concern for 

anyone intending to operate within 

certain waters of the Choptank River at 

Cambridge, MD. 

The purpose of this rulemaking is to 

protect event participants, spectators, 

and transiting vessels on certain waters 

of Choptank River before, during, and 

after the scheduled event. The Coast 

Guard proposes this rulemaking under 

authority in 46 U.S.C. 70041. 

III. Discussion of Proposed Rule 

The COTP Maryland-National Capital 

Region is proposing to establish special 

local regulations from 9 a.m. on October 

9, 2021, until 6 p.m. on October 10, 

2021. The special local regulations 

would be enforced from 9 a.m. to 6 p.m. 

on October 9th and those same hours on 

October 10th. The regulated area would 

cover all navigable waters within 

Choptank River and Hambrooks Bay 

bounded by a line connecting the 

following coordinates: Commencing at 

the shoreline at Long Wharf Park, 

Cambridge, MD, at position latitude 

38°34′30′′ N, longitude 076°04′16′′ W; 

thence east to latitude 38°34′20′′ N, 

longitude 076°03′46′′ W; thence 

northeast across the Choptank River 

along the Senator Frederick C. Malkus, 

Jr. (US–50) Memorial Bridge, at mile 

15.5, to latitude 38°35′30′′ N, longitude 

076°02′52′′ W; thence west along the 

shoreline to latitude 38°35′38′′ N, 

longitude 076°03′09′′ W; thence north 

and west along the shoreline to latitude 

38°36′42′′ N, longitude 076°04′15′′ W; 

thence southwest across the Choptank 

River to latitude 38°35′31′′ N, longitude 

076°04′57′′ W; thence west along the 

Hambrooks Bay breakwall to latitude 

38°35′33′′ N, longitude 076°05′17′′ W; 

thence south and east along the 

shoreline to and terminating at the point 

of origin in Dorchester County, MD. 

This proposed rule provides 

additional information about areas 

within the regulated area, and the 

restrictions that apply to mariners. 

These areas include a ‘‘Race Area,’’ 

‘‘Buffer Area’’ and ‘‘Spectator Area’’. 

The proposed duration of the rule and 

size of the regulated area are intended 

to ensure the safety of life on these 

navigable waters before, during, and 

after the high-speed power boat races, 

scheduled from 10 a.m. until 5 p.m. on 

October 9, 2021 and October 10, 2021. 

The COTP and Coast Guard Event Patrol 

Commander (Event PATCOM) would 

have authority to forbid and control the 

movement of all vessels and persons, 

including event participants, in the 

regulated area. When hailed or signaled 

by an official patrol, a vessel or person 

in the regulated area would be required 

to immediately comply with the 

directions given by the COTP or Event 

PATCOM. If a person or vessel fails to 

follow such directions, the Coast Guard 

may expel them from the area, issue 

them a citation for failure to comply, or 

both. 

Except for Cambridge Classic Power 

Boat Regatta participants and vessels 

already at berth, a vessel or person 

would be required to get permission 

from the COTP or Event PATCOM 

before entering the regulated area while 

the rule is being enforced. Vessel 

operators could request permission to 

enter and transit through the regulated 

area by contacting the Event PATCOM 

on VHF–FM channel 16. Vessel traffic 

would be able to safely transit the 

regulated area once the Event PATCOM 

deems it safe to do so. A person or 

vessel not registered with the event 


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sponsor as a participant or assigned as 

official patrols would be considered a 

spectator. Official Patrols are any vessel 

assigned or approved by the 

Commander, Coast Guard Sector 

Maryland-National Capital Region with 

a commissioned, warrant, or petty 

officer on board and displaying a Coast 

Guard ensign. 

If permission is granted by the COTP 

or Event PATCOM, a person or vessel 

would be allowed to enter the regulated 

area or pass directly through the 

regulated area as instructed. Vessels 

would be required to operate at a safe 

speed that minimizes wake while 

within the regulated area. Official patrol 

vessels will direct spectator vessels 

while within the regulated area. Vessels 

would be prohibited from loitering 

within the navigable channel. Only 

participant vessels and official patrol 

vessels would be allowed to enter the 

race area. 

The regulatory text we are proposing 

appears at the end of this document. 

IV. Regulatory Analyses 

We developed this proposed rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protestors. 

A. Regulatory Planning and Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits. 

This NPRM has not been designated a 

‘‘significant regulatory action,’’ under 

Executive Order 12866. Accordingly, 

the NPRM has not been reviewed by the 

Office of Management and Budget 

(OMB). 

This regulatory action determination 

is based on the location, size and 

duration of the regulated area, which 

impacts a portion of the Choptank River 

for a total of 18 hours. The regulated 

area extends across the entire width of 

the Choptank River between Cambridge, 

MD, and Trappe, MD. The majority of 

the vessel traffic through this area 

consists of passenger, recreational and 

fishing vessels transiting along the 

Choptank River or into Cambridge 

Creek. The Coast Guard would issue a 

Broadcast Notice to Mariners via VHF– 

FM marine channel 16 about the status 

of the regulated area. Moreover, the rule 

would allow vessels to seek permission 

to enter the regulated area. 

B. Impact on Small Entities 

The Regulatory Flexibility Act of 

1980, 5 U.S.C. 601–612, as amended, 

requires Federal agencies to consider 

the potential impact of regulations on 

small entities during rulemaking. The 

term ‘‘small entities’’ comprises small 

businesses, not-for-profit organizations 

that are independently owned and 

operated and are not dominant in their 

fields, and governmental jurisdictions 

with populations of less than 50,000. 

The Coast Guard certifies under 5 U.S.C. 

605(b) that this proposed rule would not 

have a significant economic impact on 

a substantial number of small entities. 

While some owners or operators of 

vessels intending to transit the regulated 

area may be small entities, for the 

reasons stated in section IV.A above, 

this proposed rule would not have a 

significant economic impact on any 

vessel owner or operator. 

If you think that your business, 

organization, or governmental 

jurisdiction qualifies as a small entity 

and that this rule would have a 

significant economic impact on it, 

please submit a comment (see 

ADDRESSES) explaining why you think it 

qualifies and how and to what degree 

this rule would economically affect it. 

Under section 213(a) of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (Public Law 104– 

121), we want to assist small entities in 

understanding this proposed rule. If the 

rule would affect your small business, 

organization, or governmental 

jurisdiction and you have questions 

concerning its provisions or options for 

compliance, please call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section. The Coast 

Guard will not retaliate against small 

entities that question or complain about 

this proposed rule or any policy or 

action of the Coast Guard. 

C. Collection of Information 

This proposed rule would not call for 

a new collection of information under 

the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501–3520). 

D. Federalism and Indian Tribal 

Governments 

A rule has implications for federalism 

under Executive Order 13132 

(Federalism), if it has a substantial 

direct effect 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. We have analyzed 

this proposed rule under that Order and 

have determined that it is consistent 

with the fundamental federalism 

principles and preemption requirements 

described in Executive Order 13132. 

Also, this proposed rule does not have 

tribal implications under Executive 

Order 13175 (Consultation and 

Coordination with Indian Tribal 

Governments) because it would 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. 

If you believe this proposed rule has 

implications for federalism or Indian 

tribes, please call or email the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

E. Unfunded Mandates Reform Act 

The Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1531–1538) requires 

Federal agencies to assess the effects of 

their discretionary regulatory actions. In 

particular, the Act addresses actions 

that may result in the expenditure by a 

State, local, or tribal government, in the 

aggregate, or by the private sector of 

$100,000,000 (adjusted for inflation) or 

more in any one year. Though this 

proposed rule would not result in such 

an expenditure, we do discuss the 

effects of this rule elsewhere in this 

preamble. 

F. Environment 

We have analyzed this proposed rule 

under Department of Homeland 

Security Directive 023–01, Rev. 1, 

associated implementing instructions, 

and Environmental Planning 

COMDTINST 5090.1 (series), which 

guide the Coast Guard in complying 

with the National Environmental Policy 

Act of 1969 (42 U.S.C. 4321–4370f), and 

have made a preliminary determination 

that this action is one of a category of 

actions that do not individually or 

cumulatively have a significant effect on 

the human environment. This proposed 

rule involves implementation of 

regulations within 33 CFR part 100 for 

total 18 enforcement hours. Normally 

such actions are categorically excluded 

from further review under paragraph 

L61of Appendix A, Table 1 of DHS 

Instruction Manual 023–01–001–01, 

Rev. 1. We seek any comments or 

information that may lead to the 

discovery of a significant environmental 

impact from this proposed rule. 

G. Protest Activities 

The Coast Guard respects the First 

Amendment rights of protesters. 

Protesters are asked to call or email the 

person listed in the FOR FURTHER

INFORMATION CONTACT section to 


jbell on DSKJLSW7X2PROD with PROPOSALS
41800 Federal Register / Vol. 86, No. 146 / Tuesday, August 3, 2021 / Proposed Rules 

coordinate protest activities so that your 

message can be received without 

jeopardizing the safety or security of 

people, places, or vessels. 

V. Public Participation and Request for 

Comments 

We view public participation as 

essential to effective rulemaking, and 

will consider all comments and material 

received during the comment period. 

Your comment can help shape the 

outcome of this rulemaking. If you 

submit a comment, please include the 

docket number for this rulemaking, 

indicate the specific section of this 

document to which each comment 

applies, and provide a reason for each 

suggestion or recommendation. 

Submitting comments. We encourage 

you to submit comments through the 

Federal Decision Making Portal at 

https://www.regulations.gov. To do so, 

go to https://www.regulations.gov, type 

USCG–2021–0540 in the ‘‘SEARCH’’ 

box and click ‘‘SEARCH.’’ Next, look for 

this document in the Search Results 

column, and click on it. Then click on 

the Comment option. If you cannot 

submit your material by using https://

www.regulations.gov, call or email the 

person in the FOR FURTHER INFORMATION

CONTACT section of this document for 

alternate instructions. 

Viewing material in docket. To view 

documents mentioned in this proposed 

rule as being available in the docket, 

find the docket as described in the 

previous paragraph, and then select 

‘‘Supporting & Related Material’’ in the 

Document Type column. Public 

comments will also be placed in our 

online docket and can be viewed by 

following instructions on the https://

www.regulations.gov Frequently Asked 

Questions web page. We review all 

comments received, but we will only 

post comments that address the topic of 

the proposed rule. We may choose not 

to post off-topic, inappropriate, or 

duplicate comments that we receive. 

Personal information. We accept 

anonymous comments. Comments we 

post to https://www.regulations.gov will 

include any personal information you 

have provided. For more about privacy 

and submissions in response to this 

document, see DHS’s eRulemaking 

System of Records notice (85 FR 14226, 

March 11, 2020). 

List of Subjects in 33 CFR Part 100 

Marine safety, Navigation (water), 

Reporting and recordkeeping 

requirements, Waterways. 

For the reasons discussed in the 

preamble, the Coast Guard proposes to 

amend 33 CFR part 100 as follows: 

PART 100—SAFETY OF LIFE ON 

NAVIGABLE WATERS 

■ 1. The authority citation for part 100 

continues to read as follows: 

Authority: 46 U.S.C. 70041; 33 CFR 1.05– 

1. 

■ 2. Add § 100.501T05–0540 to read as 

follows: 

§ 100.501T05–0540 Cambridge Classic 

Power Boat Regatta, Choptank River, 

Cambridge, MD. 

(a) Locations. All coordinates 

reference Datum NAD 1983. (1) 

Regulated area. All navigable waters 

within Choptank River and Hambrooks 

Bay bounded by a line connecting the 

following coordinates: Commencing at 

the shoreline at Long Wharf Park, 

Cambridge, MD, at position latitude 

38°34′30′′ N, longitude 076°04′16′′ W; 

thence east to latitude 38°34′20′′ N, 

longitude 076°03′46′′ W; thence 

northeast across the Choptank River 

along the Senator Frederick C. Malkus, 

Jr. (US–50) Memorial Bridge, at mile 

15.5, to latitude 38°35′30′′ N, longitude 

076°02′52′′ W; thence west along the 

shoreline to latitude 38°35′38′′ N, 

longitude 076°03′09′′ W; thence north 

and west along the shoreline to latitude 

38°36′42′′ N, longitude 076°04′15′′ W; 

thence southwest across the Choptank 

River to latitude 38°35′31′′ N, longitude 

076°04′57′′ W; thence west along the 

Hambrooks Bay breakwall to latitude 

38°35′33′′ N, longitude 076°05′17′′ W; 

thence south and east along the 

shoreline to and terminating at the point 

of origin. The following locations are 

within the regulated area: 

(2) Race area. Located within the 

waters of Hambrooks Bay and Choptank 

River, between Hambrooks Bar and 

Great Marsh Point, MD. The race area is 

within the buffer area. 

(3) Buffer area. All navigable waters 

within Hambrooks Bay and Choptank 

River (with the exception of the race 

area designated by the marine event 

sponsor) bound to the north by the 

breakwall and continuing along a line 

drawn from the east end of breakwall 

located at latitude 38°35′27.6′′ N, 

longitude 076°04′50.1′′ W; thence 

southeast to latitude 38°35′17.7′′ N, 

longitude 076°04′29′′ W; thence south to 

latitude 38°35′01′′ N, longitude 

076°04′29′′ W; thence west to the 

shoreline at latitude 38°35′01′′ N, 

longitude 076°04′41.3′′ W. 

(4) Spectator area. All navigable 

waters of the Choptank River, eastward 

and outside of Hambrooks Bay 

breakwall, thence bound by line that 

commences at latitude 38°35′28′′ N, 

longitude 076°04′50′′ W; thence 

northeast to latitude 38°35′30′′ N, 

longitude 076°04′47′′ W; thence 

southeast to latitude 38°35′23′′ N, 

longitude 076°04′29′′ W; thence 

southwest to latitude 38°35′19′′ N, 

longitude 076°04′31′′ W; thence 

northwest to and terminating at the 

point of origin. 

(b) Definitions. As used in this 

section— 

Buffer area is a neutral area that 

surrounds the perimeter of the Course 

Area within the regulated area described 

by this section. The purpose of a buffer 

area is to minimize potential collision 

conflicts with marine event participants 

or high-speed power boats and spectator 

vessels or nearby transiting vessels. This 

area provides separation between a 

Course Area and a specified Spectator 

Area or other vessels that are operating 

in the vicinity of the regulated area 

established by the special local 

regulations. 

Captain of the Port (COTP) MarylandNational Capital Region means the 

Commander, U.S. Coast Guard Sector 

Maryland-National Capital Region or 

any Coast Guard commissioned, warrant 

or petty officer who has been authorized 

by the COTP to act on his behalf. 

Course area is an area described by a 

line bound by coordinates provided in 

latitude and longitude that outlines the 

boundary of a course area within the 

regulated area defined by this section. 

Event patrol commander or Event 

PATCOM means a commissioned, 

warrant, or petty officer of the U.S. 

Coast Guard who has been designated 

by the Commander, Coast Guard Sector 

Maryland-National Capital Region. 

Official patrol means any vessel 

assigned or approved by Commander, 

Coast Guard Sector Maryland-National 

Capital Region with a commissioned, 

warrant, or petty officer on board and 

displaying a Coast Guard ensign. 

Participant means all persons and 

vessels registered with the event 

sponsor as participating in the 

‘‘Cambridge Classic Power Boat Regatta’’ 

powerboat races, or otherwise 

designated by the event sponsor as 

having a function tied to the event. 

Spectator means a person or vessel 

not registered with the event sponsor as 

participants or assigned as official 

patrols. 

Spectator area is an area described by 

a line bound by coordinates provided in 

latitude and longitude that outlines the 

boundary of a spectator area within the 

regulated area defined by this part. 

(c) Special Local Regulations. (1) The 

COTP Maryland-National Capital 

Region or Event PATCOM may forbid 

and control the movement of all vessels 

and persons, including event 

participants, in the regulated area. 


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When hailed or signaled by an official 

patrol, a vessel or person in the 

regulated area shall immediately 

comply with the directions given by the 

patrol. Failure to do so may result in the 

Coast Guard expelling the person or 

vessel from the area, issuing a citation 

for failure to comply, or both. The COTP 

Maryland-National Capital Region or 

Event PATCOM may terminate the 

event, or a participant’s operations at 

any time the COTP Maryland-National 

Capital Region or Event PATCOM 

believes it necessary to do so for the 

protection of life or property. 

(2) Except for participants and vessels 

already at berth, a person or vessel 

within the regulated area at the start of 

enforcement of this section must 

immediately depart the regulated area. 

(3) A spectator must contact the Event 

PATCOM to request permission to 

either enter or pass through the 

regulated area. The Event PATCOM, and 

official patrol vessels enforcing this 

regulated area, can be contacted on 

marine band radio VHF–FM channel 16 

(156.8 MHz) and channel 22A (157.1 

MHz). If permission is granted, the 

spectator must enter the designated 

Spectator Area or pass directly through 

the regulated area as instructed by Event 

PATCOM. A vessel within the regulated 

area must operate at safe speed that 

minimizes wake. A spectator vessel 

must not loiter within the navigable 

channel while within the regulated area. 

(4) Only participant vessels and 

official patrol vessels are allowed to 

enter the buffer area or race area. 

(5) A person or vessel that desires to 

transit, moor, or anchor within the 

regulated area must obtain authorization 

from the COTP Maryland-National 

Capital Region or Event PATCOM. A 

person or vessel seeking such 

permission can contact the COTP 

Maryland-National Capital Region at 

telephone number 410–576–2693 or on 

Marine Band Radio, VHF–FM channel 

16 (156.8 MHz) or the Event PATCOM 

on Marine Band Radio, VHF–FM 

channel 16 (156.8 MHz). 

(6) The Coast Guard will publish a 

notice in the Fifth Coast Guard District 

Local Notice to Mariners and issue a 

marine information broadcast on VHF– 

FM marine band radio announcing 

specific event dates and times. 

(d) Enforcement officials. The Coast 

Guard may be assisted with marine 

event patrol and enforcement of the 

regulated area by other federal, state, 

and local agencies. 

(e) Enforcement period. This section 

will be enforced from 9 a.m. to 6 p.m. 

on October 9, 2021, and, from 9 a.m. to 

6 p.m. on October 10, 2021. 

Dated: July 28, 2021. 

David E. O’Connell, 

Captain, U.S. Coast Guard, Captain of the 

Port Maryland-National Capital Region. 

[FR Doc. 2021–16478 Filed 8–2–21; 8:45 am] 

BILLING CODE 9110–04–P 

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. 

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: benware.richard@epa.gov. 

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 nonconventional 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 


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