[Federal Register Volume 82, Number 179 (Monday, September 18, 2017)]
[Rules and Regulations]
[Pages 43494-43500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19821]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 423

[EPA-HQ-OW-2009-0819; FRL-9967-90-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: Final rule.

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SUMMARY: Under the Clean Water Act (``CWA''), The Environmental 
Protection Agency (EPA) intends to conduct a rulemaking to potentially 
revise certain best available technology economically achievable 
(``BAT'') effluent limitations and pretreatment standards for existing 
sources (``PSES'') for the steam electric power generating point source 
category, which were published in the Federal Register on November 3, 
2015. EPA is, accordingly, postponing the associated compliance dates 
in the 2015 Rule. In particular, EPA is postponing the earliest 
compliance dates for the new, more stringent, BAT effluent limitations 
and PSES for flue gas desulfurization (``FGD'') wastewater and bottom 
ash transport water in the 2015 Rule for a period of two years. At this 
time, EPA does not intend to conduct a rulemaking that would 
potentially revise the new, more stringent BAT effluent limitations and 
pretreatment standards in the 2015 Rule for fly ash transport water, 
flue gas mercury control wastewater, and gasification wastewater, or 
any of the other requirements in the 2015 Rule. As such, EPA is not 
changing the compliance dates for the BAT limitations and PSES 
established by the 2015 Rule for these wastestreams. EPA's action to 
postpone certain compliance dates in the 2015 Rule is intended to 
preserve the status quo for FGD wastewater and bottom ash transport

[[Page 43495]]

water until EPA completes its next rulemaking concerning those 
wastestreams, and it thus does not otherwise amend the effluent 
limitations guidelines and standards for the steam electric power 
generating point source category.

DATES: The final rule is effective September 18, 2017. In accordance 
with 40 CFR part 23, this regulation shall be considered issued for 
purposes of judicial review at 1 p.m. Eastern Standard Time on October 
2, 2017. Under section 509(b)(1) of the CWA, judicial review of this 
regulation can be had only by filing a petition for review in the U.S. 
Court of Appeals within 120 days after the regulation is considered 
issued for purposes of judicial review. Under section 509(b)(2), the 
requirements in this regulation may not be challenged later in civil or 
criminal proceedings brought by EPA to enforce these requirements.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-OW-2009-0819. All documents in the docket are listed 
on the https://www.regulations.gov Web site. Although listed in the 
index, some information is not publicly available, e.g., 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 electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Ronald Jordan, United States 
Environmental Protection Agency, Engineering and Analysis Division; 
telephone number: (202) 566-1003; email address: <a href="/cdn-cgi/l/email-protection#2e44415c4a4f40005c41404f424a6e4b5e4f00494158"><span class="__cf_email__" data-cfemail="9af0f5e8fefbf4b4e8f5f4fbf6fedaffeafbb4fdf5ec">[email protected]</span></a>. 
Electronic copies of this document and related materials are available 
on EPA's Web site at https://www.epa.gov/eg/steam-electric-power-generatingeffluent-guidelines-2015-final-rule. Copies of this final 
rule are also available at http://www.regulations.gov.

SUPPLEMENTARY INFORMATION: 

I. Background

    On November 3, 2015, the EPA published 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 limitations 
and standards on various wastestreams at steam electric power plants: 
FGD wastewater, bottom ash transport water, fly ash transport water, 
flue gas mercury control 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,'' or ``2015 Rule.'' 
For further information on the 2015 Rule, see 80 FR 67838 (November 3, 
2015).
    EPA received seven petitions for review of the 2015 Rule. The U.S. 
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 2015 
Rule which 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 2015 Rule, which expressly supports 
UWAG's petition and raises issues that SBA considers to be pertinent to 
small businesses. The petitions raise wide-ranging objections to the 
Rule.\2\ Among other things, the UWAG petition points to new data which 
they believe show that plants burning subbituminous and bituminous coal 
cannot comply with the 2015 Rule's limitations and standards for FGD 
wastewater and questions EPA's characterization of bottom ash transport 
water. UWAG also requested that EPA 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 2015 Rule. See DCN SE06612. 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, EPA 
requested that the Fifth Circuit hold the case in abeyance while the 
Agency undertook reconsideration. On April 24, 2017, the Fifth Circuit 
granted the motion and placed the case in abeyance.
    On June 6, 2017 (82 FR 26017), EPA proposed to postpone the 
compliance dates for the new, more stringent, BAT effluent limitations 
and PSES in the 2015 Rule for each of the following wastestreams: FGD 
wastewater, bottom ash transport water, fly ash transport water, flue 
gas mercury control wastewater, and gasification wastewater, while 
reconsideration of the 2015 Rule was underway. EPA explained that this 
postponement would preserve the regulatory status quo with respect to 
wastestreams subject to the 2015 Rule's new, and more stringent, 
limitations and standards during reconsideration and that postponement 
of compliance dates is intended to prevent the unnecessary expenditure 
of resources until EPA finalizes any rulemaking as a result of its 
reconsideration of the 2015 Rule. EPA also solicited comments on 
whether this postponement should be for a specified period of time, for 
example, two years.
    On August 11, 2017, EPA sent a second letter to those who had 
requested reconsideration of the 2015 Rule, announcing the 
Administrator's decision to conduct a new rulemaking to potentially 
revise the new, more stringent BAT limitations and PSES in the 2015 
Rule that apply to two wastestreams: FGD wastewater and bottom ash 
transport water. See DCN SE06670. On August 14, 2017, EPA filed a 
motion to govern further proceedings in the U.S. Court of Appeals for 
the Fifth Circuit, which explained that EPA intends to conduct further 
rulemaking to potentially revise the new, more stringent BAT/PSES 
requirements in the 2015 Rule applicable to FGD wastewater and bottom 
ash transport water, and requested, in part, that the Court sever and 
hold in abeyance all judicial proceedings concerning portions of the 
2015 Rule related to those particular requirements. On August 22, 2017, 
the Court granted EPA's motion.
    In an earlier action, EPA administratively postponed certain 
compliance dates that had not yet passed in part of the 2015 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.'' 82 FR 19005 (April 25, 2017). EPA had 
postponed the compliance dates as a

[[Page 43496]]

temporary measure pursuant to Section 705 to preserve the status quo 
while the litigation in the Fifth Circuit was pending and EPA's 
reconsideration was underway. Because EPA has decided to conduct 
further rulemaking to potentially revise the new, more stringent BAT 
limitations and PSES in the 2015 Rule applicable to two specific 
wastestreams (FGD wastewater and bottom ash transport water), and it is 
today finalizing a rule which postpones the associated compliance dates 
in the 2015 Rule pending its next rulemaking, there is no longer any 
need for the Agency to maintain its prior action pursuant to Section 
705 of the APA. EPA, hereby, withdraws that action.

II. Summary of Comments Received

    EPA received thousands of written comments on the proposed rule to 
postpone certain compliance dates in the 2015 Rule. EPA also held a 
public hearing on July 31, 2017. The comments on the proposed rule 
generally fall into one of four categories: (1) Support for 
postponement of compliance dates; (2) opposition to the postponement of 
compliance dates; (3) comments on the substantive requirements of the 
2015 Rule (which are outside the scope of this action, which concerns 
postponing certain compliance dates only); and (4) comments on the 
length of time that EPA should postpone the compliance dates.
    Commenters that support the postponement rule generally assert that 
the postponement is appropriate to prevent industry from spending 
``unnecessary resources'' until EPA completes its reconsideration of 
the 2015 Rule. Many commenters who support a postponement in compliance 
dates state that, given the substantial costs required to implement 
technology required to comply with the 2015 Rule, as well as the time 
needed for designing and optimizing treatment systems, certainty in the 
discharge requirements is needed and postponement of compliance dates 
allows for that. In addition, commenters argue that the Agency has both 
the authority and the responsibility to postpone the 2015 Rule until it 
completes any rulemaking following its reconsideration process.
    Comments on the length of the postponement generally assert that 
EPA should postpone the compliance dates for a minimum of two years, 
until EPA has taken final action on any rule revisions, or some time 
period beyond when EPA has taken final action on any rule revisions.
    Commenters that oppose the postponement rule generally assert that 
(1) the technology bases underlying the 2015 Rule are widely available 
and affordable now, many steam electric plants have already installed 
or are in the process of implementing these technologies, and 
postponing the compliance dates would hinder technology development; 
(2) any postponement allows power plants to continue to discharge 
pollutants that are harmful to public health and the environment, and 
the forgone public health and environmental benefits during any 
postponement outweigh the costs to industry; and (3) EPA lacks 
authority to postpone the compliance dates.

III. Rationale for Finalizing a Postponement of Compliance Dates

    In light of new information not contained in the record for the 
2015 Rule and the inherent discretion the Agency has to reconsider past 
policy decisions consistent with the CWA and other applicable law, EPA 
intends to conduct a new rulemaking regarding the appropriate 
technology bases and associated limits for the BAT/PSES requirements 
applicable to FGD wastewater and bottom ash transport water discharged 
from steam electric power plants. Given this, and after carefully 
considering comments received on the proposed rule, EPA finds it 
appropriate to postpone the earliest compliance dates for the new, more 
stringent, BAT effluent limitations and PSES applicable to FGD 
wastewater and bottom ash transport water in the 2015 Rule until it 
completes the new rulemaking. This maintains the 2015 Rule as a whole 
at this time, with the only change being to postpone specific 
compliance deadlines for two wastestreams. Thus, the earliest 
compliance dates for plants to meet the new, more stringent FGD 
wastewater and bottom ash wastewater limitations and standards in the 
2015 Rule, which were to be determined by the permitting authority as a 
date ``as soon as possible beginning November 1, 2018 . . .'', are now 
to be determined by the permitting authority as a date ``as soon as 
possible beginning November 1, 2020 . . . .'' EPA is not changing the 
``no later than'' date of December 31, 2023, because EPA is not aware 
that the 2023 date is an immediate driver for expenditures by plants 
(petitioners had requested relief from the ``fast-approaching 
compliance deadlines'' in the 2015 Rule), and EPA plans to take up the 
appropriate compliance period in its next rulemaking. In order to be 
absolutely clear about what is being postponed, the final rule includes 
more precise regulatory text to implement the rule than was included in 
the proposed rule.
    Agencies have inherent authority to reconsider past decisions and 
to revise, replace or repeal a decision to the extent permitted by law 
and supported by a reasoned explanation. FCC v. Fox Television 
Stations, Inc., 556 U.S. 502, 515 (2009); Motor Vehicle Mfrs. Ass'n v. 
State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 42 (1983). See also 
Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038 & 1043 (D.C. 
Cir. 2012). Particularly relevant here, the CWA expressly authorizes 
EPA to revise effluent limitations and standards. 33 U.S.C. 1311(d), 
1314(b), (g)(1), (m)(1)(A), 1317(b)(2). Moreover, in doing so, Section 
304(b)(2)(B) of the CWA directs EPA to consider several factors, 
including ``other factors as the Administrator deems appropriate,'' and 
the Agency is afforded considerable discretion in deciding how much 
weight to give each factor. See, e.g., Weyerhaeuser Co. v. Costle, 590 
F.2d 1011, 1045 (D.C. Cir. 1978). In this case, where EPA has decided 
to undertake a new rulemaking, which may result in substantive changes 
to the 2015 Rule, that is an appropriate factor to consider and one 
that warrants the postponement of compliance dates for the new, more 
stringent BAT and PSES requirements for two wastestreams in the 2015 
Rule, until such a rulemaking is complete (i.e., EPA issues any final 
rule that substantively revises the 2015 Rule or EPA decides not to 
issue such a final rule). This will prevent the potentially needless 
expenditure of resources during a rulemaking that may ultimately change 
the 2015 Rule in these respects.
    As mentioned, some commenters stated that the record for the 2015 
Rule demonstrates that the technologies underlying the new, more 
stringent requirements for FGD wastewater and bottom ash transport 
water are widely available and affordable. Notwithstanding statements 
in the 2015 Rule record, certain parties have raised serious concerns 
about the availability and affordability of the technology basis for 
the FGD wastewater and bottom ash transport water requirements in the 
2015 Rule, and the Administrator wishes to take some time to carefully 
review these requirements in light of those concerns and ensure any 
such requirements are technologically available and economically 
achievable within the meaning of the statute. EPA has discretion in 
determining technological availability and economic achievability and 
is not constrained by the CWA to make the same policy decision as the 
former Administration, so long as its decision is reasonable. As 
explained above, the Agency may

[[Page 43497]]

reconsider past policy decisions consistent with the Clean Water Act 
and other applicable law. The Agency may also reconsider technical 
determinations in light of new information submitted to the Agency that 
was not in the record for the 2015 Rule. EPA intends to fully evaluate 
all of the issues raised in the petitions, including concerns about: 
Cost and impacts to steam electric facilities, public availability of 
information on which the rule is based, lack of data for plants that 
burn certain types of coal, and validity of certain pollutant data used 
in EPA's 2015 Rule analysis. For example, petitioners raised concerns 
about the numerical BAT limitations and PSES applicable to FGD 
wastewater in the 2015 Rule. They assert that there are differences 
among coal types that affect the performance and costs of biological 
treatment and that EPA did not have data to demonstrate the performance 
of biological treatment on all coal types. To resolve this concern, 
following the rulemaking, industry collected (and continues to collect) 
additional data on the performance of biological treatment for 
different coal types. As another example, petitioners raised questions 
about the inclusion and validity of certain data due, in part, to what 
they assert are flaws in data acceptance criteria, obsolete analytical 
methods, and the treatment of non-detect analytical results, which 
petitioners believed resulted in an overestimation of pollutant 
loadings for bottom ash transport water. EPA agrees that these are 
important issues that warrant further consideration in conjunction with 
the statutory factors for determining BAT for these wastestreams. EPA 
thus intends to re-evaluate these and other concerns raised in the 
petitions in the next rulemaking. EPA acknowledges that postponement of 
certain of the 2015 Rule's compliance dates may be disruptive to 
vendors and treatment technology suppliers. EPA, however, must also 
consider the substantial investments required by the steam electric 
power industry to comply with the BAT limitations and PSES,\3\ and that 
certainty regarding the limitations and standards deserves prominent 
consideration by the Agency when these limitations and standards may 
change. 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.
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    \3\ In the 2015 Rule, EPA estimated the total annualized pre-tax 
compliance costs for the FGD and bottom ash requirements to be 
$486.8 million. See DCN SE05978.
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    As part of the 2015 Rule, EPA estimated the costs associated with 
compliance with the 2015 Rule's new requirements. For all applicable 
wastestreams, EPA assessed the operations and treatment system 
components, identified equipment and process changes that the plant 
would likely make to meet the 2015 Rule, and estimated the cost to 
implement those changes. This includes, among other things, the capital 
costs of installing the technology (based on estimates of the 
technology selected as representing the level of control) and the 
operation and maintenance costs of operating the technology. See 
Technical Development Document (``TDD''), pp. 9-1 through 9-52. EPA 
estimated that the total post-tax annualized compliance costs would be 
$339.6 million/year. See Regulatory Impact Analysis (``RIA''), Table 3-
2 (Option D).\4\
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    \4\ EPA analyzed both pre-tax and post-tax costs. Pre-tax costs 
provide insight on the total expenditures as initially incurred by 
the plants. Post-tax costs are a more meaningful measure of 
compliance impact on privately owned for-profit plants, and 
incorporate approximate capital depreciation and other relevant tax 
treatments in the analysis. RIA, p. 3-6.
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    The 2015 rulemaking record also describes evaluation of the initial 
capital costs that regulated parties would incur in the near term (if a 
stay were not in place) to meet the 2015 Rule's effluent limitations 
and standards. For the purpose of analysis, in the RIA, EPA assumed 
that all capital costs are incurred concurrently with technology 
installation according to discharge permit renewal schedules, but EPA 
realizes that feasibility studies and planning may need to be completed 
in advance of that date. Specifically, plants would incur engineering 
design costs, costs to acquire equipment, freight shipping costs to 
transport equipment from manufacturers to the installation site, costs 
for actions to prepare the site (such as installing concrete 
foundations and buildings for the new equipment), and construction 
expenses associated with connecting electrical and piping systems to 
new equipment. See TDD, p. 9-3. EPA estimated post-tax annualized 
capital costs of $204.4 million/year. See RIA, Table 3-2 (Option D). 
Although there is a wide degree of variability among the costs 
particular plants would expend, EPA estimates that the average post-tax 
annualized capital compliance costs for a plant would be approximately 
$1.5 million/year. See TDD, Table 9-19 (plants with compliance costs); 
RIA, Table 3-2 (Option D). To the extent that these costs are 
associated with the 2015 Rule requirements for FGD wastewater and 
bottom ash transport water, and in the event that EPA revises these 
requirements in a future rulemaking, these are costs that would be 
incurred for activities that ultimately might not be necessary. In that 
case, this would reflect costs incurred by facilities and potentially 
passed on to utility rate payers that ultimately did not need to be 
spent.
    In light of these imminent planning and capital expenditures that 
facilities incurring costs under the 2015 Rule would need to undertake 
in order to meet the earliest compliance deadlines for the new, more 
stringent limitations and standards in the 2015 Rule, and the fact that 
the Agency is conducting a new rulemaking regarding the appropriate 
technology bases and associated limits for BAT limitations and PSES 
applicable to FGD wastewater and bottom ash transport water, the Agency 
views it as appropriate to postpone the earliest compliance dates that 
have not yet passed for these wastestreams in 2015 Rule. This will 
preserve the regulatory status quo with respect to requirements for FGD 
wastewater and bottom ash transport water until the new rulemaking is 
complete.
    Some commenters also express concerns that postponement of 
compliance dates would hinder technology advancements. EPA's experience 
does not support this concern. The record for the 2015 Rule 
demonstrates that technology advancements were not hindered during that 
rulemaking. Rather, as explained in the preamble to the final 2015 
Rule, vendors continued to improve existing technologies and to develop 
new technologies during the rulemaking leading up to the 2015 Rule.
    EPA acknowledges that postponement of the compliance dates could 
lead to a delay in the accrual of some of the benefits attributable to 
the 2015 Rule. The 2015 Rule required that steam electric power plants 
would comply with the new, more stringent requirements no later than 
2023, with plants expected to implement new control technologies over a 
five-year compliance period of 2019-2023 according to their permit 
renewal schedule. In the record for the 2015 Rule, EPA estimated the 
value of certain benefits linked to reduced pollutant

[[Page 43498]]

discharges that could be monetized for the period 2019 through 2042. 
Based on the 2015 Rule data and methodology, and depending on the 
inclusion of the Clean Power Plan, EPA estimates that foregone 
annualized benefits for a two-year delay would be between $26.6 million 
and $33.6 million.\5\ EPA similarly estimates that plants would 
experience annualized cost savings of between $27.5 million and $36.8 
million as a result of a two-year delay. See DCN SE06668 for additional 
details, including calculations of the foregone benefits and cost 
savings. EPA understands that these estimates have uncertainty due to, 
for example, the possibility of unexpected implementation approaches, 
and thus that the actual cost savings could have been somewhat higher 
or lower than estimated. Similarly, due to data and analysis 
limitations, the forgone monetized benefits are likely underestimated. 
These estimates, however, are consistent with and reflect the best data 
and analysis available at the time of the 2015 Rule.
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    \5\ The calculations are based on the benefits and costs 
estimated for the 2015 Rule, which were detailed in the ``Benefit 
and Cost Analysis for the Effluent Limitations Guidelines and 
Standards for the Steam Electric Power Generating Point Source 
Category'' (BCA) and ``Regulatory Impact Analysis for the Effluent 
Limitations Guidelines and Standards for the Steam Electric Power 
Generating Point Source Category'' (RIA) reports.
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    EPA notes that, as explained earlier, there is uncertainty as to 
the FGD wastewater and bottom ash transport water BAT/PSES requirements 
while EPA conducts a new rulemaking. If EPA did not postpone the 
compliance dates, industry would likely incur costs as it prepares to 
comply with the 2015 Rule, irrespective of what EPA ultimately 
determines to be BAT/PSES for FGD wastewater and bottom ash transport 
water. By contrast, under the 2015 Rule, even if permits were written 
today, the earliest those permits would have required compliance with 
the limitations and standards at issue are ``as soon as possible 
beginning November 1, 2018.'' So, while some companies would have to 
plan to comply and spend money right away, the benefits would not begin 
to accrue until 2018, at the earliest. Also, these benefits may not be 
lost if a permitting authority requires similar effluent limitations 
where necessary to meet applicable water quality standards, under CWA 
section 301(b)(1)(C). EPA has carefully weighed the concerns about 
potentially foregone benefits with the consideration of the costs that 
could needlessly be incurred should the requirements be changed, as 
well as the overall uncertainty and potential confusion that would be 
caused by imposing the 2015 Rule requirements while simultaneously 
undertaking rulemaking that may change those requirements. On balance, 
EPA has concluded the more reasonable approach is to postpone the 
compliance dates in the 2015 Rule.
    Thus, EPA agrees with commenters who argue that it should postpone 
the new, more stringent BAT/PSES requirements for FGD wastewater and 
bottom ash transport water in the 2015 Rule until it completes a new 
rulemaking on these wastestreams. After reflecting on the time it 
typically takes the Agency to propose and finalize revised effluent 
limitations guidelines and standards, and in light the characteristics 
of this industry and the anticipated scope of the next rulemaking, EPA 
projects it will take approximately three years to propose and finalize 
a new rule (Fall 2020). See DCN SE06667. Consequently, EPA is 
postponing the earliest compliance dates for the new, more stringent, 
BAT effluent limitations and PSES for FGD wastewater and bottom ash 
transport water for a period of two years (November 1, 2020).\6\ To the 
extent that commenters believe a postponement under this rule should 
last beyond the time it takes EPA to complete its new rulemaking, such 
comments are appropriately considered as part of, and in light of, that 
new rulemaking and not this action. As explained, this rule is intended 
only as a relatively short-term measure until EPA completes the next 
rulemaking, and EPA anticipates that the next rulemaking will 
necessarily address compliance dates in some fashion. Although EPA 
proposed to postpone the compliance dates for the new, more stringent 
requirements applicable to fly ash transport water, gasification 
wastewater, and flue gas mercury control (FGMC) wastewater, in addition 
to the requirements for FGD wastewater and bottom ash transport water, 
this final rule does not postpone those former compliance dates. 
Commenters stated that EPA has no basis to postpone compliance dates 
for requirements that parties have not expressly argued should be 
reconsidered, such as those for fly ash transport water and FGMC 
wastewater. EPA agrees that the final rule should postpone only those 
requirements that the Agency plans to potentially revise in the next 
rulemaking. Because EPA is not conducting a new rulemaking concerning 
any of the other issues addressed by the 2015 Rule, including 
requirements for fly ash transport water, gasification wastewater, and 
FGMC wastewater, EPA is not changing the compliance dates for these 
wastestreams or any of the other compliance dates for the requirements 
in that Rule. The record for the 2015 Rule demonstrates that changes 
associated with converting a fly ash system are unrelated from an 
engineering perspective to conversions/upgrades for bottom ash 
transport water and FGD treatment systems. Converting a fly ash system 
requires installing a silo to capture the dry fly ash, which is 
subsequently transported offsite to beneficial reuse markets (e.g., 
cement plants) or landfilled. Bottom ash is handled separately, 
regardless of whether it is wet or dry. The same is true for FGD 
wastes. EPA recognizes however, that from a financing and long-term 
planning perspective, there are advantages to a facility in knowing the 
full suite of requirements it will need to comply with over a longer 
term planning horizon.
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    \6\ If EPA does not complete a new rulemaking by November, 2020, 
it plans to further postpone the compliance dates such that the 
earliest compliance date is not prior to completion of a new 
rulemaking.
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    Some facilities commented that they may need to know what the 
ultimate requirements will be for bottom ash transport water and FGD 
wastewater to assist them in considering alternatives for meeting the 
requirements for the other waste streams (fly ash transport water and 
FGMC wastewater) for which EPA is not postponing the earliest 
compliance dates. EPA notes that there continues to be discretion under 
the 2015 Rule for permitting authorities to consider: Time needed to 
``expeditiously plan (including time to raise capital), design, 
procure, and install equipment'' to comply with the rule; changes being 
made at the plant to comply with several other rules; and ``other 
factors as appropriate'' in determining exactly when, within a 
specified compliance period, the 2015 Rule's new, more stringent 
limitations apply to any given plant. See 40 CFR 423.11(t).
    In light of the compliance date postponements being finalized 
today, in determining the ``as soon as possible date,'' EPA believes it 
would be reasonable for permitting authorities to consider the need for 
a facility to make integrated planning decisions regarding compliance 
with the requirements for all of the wastestreams currently subject to 
new, more stringent requirements in the 2015 Rule, as well as the other 
rules identified in Sec.  423.11(t) to the extent that a facility 
demonstrates such a need. This could include harmonizing schedules to 
the extent provided for

[[Page 43499]]

under the 2015 Rule \7\ for meeting the 2015 Rule requirements for fly 
ash transport water and FGMC wastewater to allow time for a facility to 
have certainty regarding what their ultimate requirements will be under 
the steam electric ELGs, as well as the requirements under the other 
rules listed in Sec.  423.11(t).
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    \7\ For any final effluent limitation that is specified to 
become applicable after November 1, 2018, the specified date must be 
as soon as possible, but in no case later than December 31, 2023.
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    This rule is effective immediately upon publication. Section 553(d) 
of the Administrative Procedure Act, 5 U.S.C. 553(d), provides that 
publication of a substantive rule must be made no less than 30 days 
before its effective date, subject to several exceptions. Section 
553(d)(1) establishes an exception for ``a substantive rule which 
grants or recognizes an exemption or relieves a restriction.'' The 
exception in Section 553(d)(1) reflects the purpose of the 30-day 
notice requirement, which is to give affected entities time to prepare 
for the effective date of a rule or to take any other action which the 
issuance of a rule may prompt. This rule fits within Section 553(d)(1) 
because it postpones certain requirements on steam electric power 
plants to control their pollutant discharges by two years, and as a 
result, it relieves a restriction on regulated entities for that 
period.

IV. 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 a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is considered an Executive Order 13771 deregulatory 
action. Details on the estimated cost savings of this final rule can be 
found in EPA's analysis of the potential costs and benefits associated 
with this action.

C. Paperwork Reduction Act

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

D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic 
impact on a substantial number of small entities under the RFA. In 
making this determination, the impact of concern is any significant 
adverse economic impact on small entities. An agency may certify that a 
rule will not have a significant economic impact on a substantial 
number of small entities if the rule relieves regulatory burden, has no 
net burden or otherwise has a positive economic effect on the small 
entities subject to the rule. This action maintains the 2015 Rule as a 
whole at this time, with the only change being to postpone specific 
compliance deadlines for two wastestreams. As described above, EPA 
estimates that steam electric plants, including some small entities, 
would experience annualized cost savings of $27.5 million as a result 
of this two-year delay. We have therefore concluded that this action 
will relieve regulatory burden for some directly regulated small 
entities.

E. 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.

F. 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.

G. 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).

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

    This final 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 finalizing do not present a disproportionate risk 
to children.

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

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution or use of energy.

J. 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.

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

    This is a final rule to delay action, and it does not change the 
requirements of the effluent limitations guidelines and standards 
published in 2015. While the 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 would not change any impacts 
of the 2015 Rule upon implementation. The EPA therefore believes it is 
more appropriate to consider the impact on minority and low-income 
populations in the context of possible substantive changes as part of 
any future rulemaking.

L. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is a not a ``major rule'' as defined by 
5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 423

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

    Dated: September 12, 2017.
E. Scott Pruitt,
Administrator.
    For reasons stated in the preamble, EPA amends 40 CFR part 423 as 
set forth below:

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

[[Page 43500]]

Amendments of 1972, as amended; 33 U.S.C. 1251; 1311; 1314(b), (c), 
(e), and (g); 1316; 1317; 1318 and 1361).


0
2. Amend Sec.  423.11 by revising paragraph (t) introductory text to 
read as follows:


Sec.  423.11   Specialized definitions.

* * * * *
    (t) The phrase ``as soon as possible'' means November 1, 2018 
(except for purposes of Sec.  423.13(g)(1)(i) and (k)(1)(i), and Sec.  
423.16(e) and (g), in which case it means November 1, 2020), unless the 
permitting authority establishes a later date, after receiving 
information from the discharger, which reflects a consideration of the 
following factors:
* * * * *


Sec.  423.13   [Amended]

0
3. Amend Sec.  423.13 paragraphs (g)(1)(i) and (k)(1)(i) by removing 
the text ``November 1, 2018'' and adding the text ``November 1, 2020'' 
in its place.


Sec.  423.16   [Amended]

0
4. Amend Sec.  423.16 paragraphs (e) two times, and (g) by removing the 
text ``November 1, 2018'' and adding the text ``November 1, 2020'' in 
its place.

[FR Doc. 2017-19821 Filed 9-15-17; 8:45 am]
 BILLING CODE 6560-50-P


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