[Federal Register Volume 88, Number 60 (Wednesday, March 29, 2023)]
[Rules and Regulations]
[Pages 18440-18442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04985]



[[Page 18440]]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 423

[EPA-HQ-OW-2009-0819; FRL-8794.1-02-OW]
RIN 2040-AG28


Effluent Limitations Guidelines and Standards for the Steam 
Electric Power Generating Point Source Category--Initial Notification 
Date Extension

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Environmental Protection Agency (EPA or agency) is taking 
direct final action to extend the date for existing coal-fired power 
plants to submit a notice of planned participation (NOPP) for the 
permanent cessation of coal combustion subcategory in the 2020 Steam 
Electric Reconsideration Rule.

DATES: This rule is effective on May 30, 2023 without further notice, 
unless EPA receives adverse comment by April 28, 2023. If EPA receives 
adverse comment, the Agency will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2009-0819 at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. 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. 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 and multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. All documents in the docket 
are listed on the https://www.regulations.gov website. 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: Richard Benware, Engineering and 
Analysis Division Office of Water (Mail Code 4303T), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: 202-566-1369; email address: [email protected]. 
Additional information is also available online at https://www.epa.gov/eg/2021-supplemental-steam-electric-rulemaking.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Why is EPA using a direct final rule?
II. Does this action apply to me?
III. What is the agency's authority for taking this action?
IV. Background
V. What action is EPA taking?
VI. Statutory and Executive Order Reviews

I. Why is EPA using a direct final rule?

    EPA is taking direct final action because the agency views this as 
a noncontroversial action and anticipates no adverse comment because 
the rule extends the date for existing coal-fired power plants to 
submit a NOPP in the 2020 rule's (85 FR 64650, October 13, 2020) 
subcategory for electric generating units (EGUs) permanently ceasing 
coal combustion by December 31, 2028, from October 13, 2021, to June 
27, 2023. This direct final rule does not otherwise amend 40 CFR part 
423 in any way. In the ``Proposed Rules'' section of this issue of the 
Federal Register, however, EPA is publishing a separate document that 
will serve as the proposed rulemaking to extend the initial 
notification date if adverse comments are received on this direct final 
rule. EPA will not institute a second comment period on this action. 
Any parties interested in commenting must do so at this time. For 
further information about commenting on this rule, see the ADDRESSES 
section of this document.
    If EPA receives adverse comment on this direct final rule, it will 
publish a timely withdrawal in the Federal Register informing the 
public that this direct final rule will not take effect. EPA would 
address all public comments in any subsequent final rule based on the 
proposed rule.

II. Does this action apply to me?

    Entities potentially regulated by this action include:

----------------------------------------------------------------------------------------------------------------
                                                                                                 North American
                                                                                                    Industry
                   Category                              Example of regulated entity             Classification
                                                                                                 System (NAICS)
                                                                                                      code
----------------------------------------------------------------------------------------------------------------
Industry.....................................  Electric Power Generation Facilities--Electric              22111
                                                Power Generation.
                                               Electric Power Generation Facilities--Fossil               221112
                                                Fuel Electric Power Generation.
----------------------------------------------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table includes the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not included could also be regulated. To determine whether your entity 
is regulated by this action, you should carefully examine the 
applicability criteria found in 40 CFR 423.10 (Applicability). If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the FOR FURTHER 
INFORMATION CONTACT section of this preamble.

III. What is the agency's authority for taking this action?

    The authority for this rule is the Federal Water Pollution Control 
Act, 33 U.S.C. 1251 et seq., including sections 101; 301; 304(b), (c), 
(e), and (g); 306; 307; 308 and 501.

IV. Background

    EPA promulgated the Steam Electric Reconsideration Rule in 2020. In 
the

[[Page 18441]]

2020 rule, EPA established a subcategory for EGUs permanently ceasing 
coal combustion by December 31, 2028. For these EGUs, less stringent 
total suspended solids limitations and standards were established for 
discharges of pollutants found in flue gas desulfurization (FGD) 
wastewater and bottom ash (BA) transport water. These limitations and 
standards were based on the use of surface impoundments. In order to 
participate in this subcategory, facilities had to submit a NOPP to 
their permitting authority or control authority by October 13, 2021, 
and subsequently submit annual progress reports on the steps taken to 
achieve permanent cessation of coal combustion.\1\ After the October 
13, 2021 NOPP date had passed, EPA learned in meetings with trade 
associations and utilities that additional facilities wish to avail 
themselves of the compliance pathway for EGUs seeking to retire or 
convert to a non-coal fuel source by December 31, 2028, but were unable 
to make that commitment by October 13, 2021.
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    \1\ While it is also possible for facilities to use the transfer 
provisions of 40 CFR 423.13(o) to transfer into this subcategory 
from the voluntary incentives program or low utilization EGU 
subcategory, EPA is only aware of six facilities which have elected 
to participate in these programs.
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V. What action is EPA taking?

    Based on the recent information submitted to EPA suggesting that 
there are likely additional EGUs seeking to permanently cease coal 
combustion by December 31, 2028, EPA is extending the NOPP date in 40 
CFR 423.19(f) to June 27, 2023. This direct final rule does not change 
any other dates for the reporting and recordkeeping requirements of 
section 423.19, nor does it make any other changes to 40 CFR part 423.
    Elsewhere in this Federal Register issue, EPA is proposing certain 
revisions to strengthen the steam electric effluent guidelines. That 
document proposes that EPA would retain the subcategory for EGUs 
permanently ceasing coal combustion by December 31, 2028. EPA is using 
the same docket for this action as for the proposed rulemaking, and 
thus the agency requests that any comments on this direct final action 
be submitted separately from comments on the broader proposed 
rulemaking and contain language that explicitly denotes they are 
intended to be for this direct final action relating solely to the NOPP 
date. Where it is not clear that the comment relates to the extension 
of the NOPP date, EPA may consider it to be a comment on the broader 
proposed rulemaking rather than this action. To the extent that a 
comment explicitly indicates that it is being submitted on this direct 
final rule, EPA will not consider items on any topic other than the 
extension of the NOPP date for the permanent cessation of coal 
combustion by 2028 subcategory. Any other comments will be considered 
outside the scope of this action; if the comments are intended for the 
companion proposal, they should be provided separately.

VI. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

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

    Under Executive Order 12866 (58 FR 51735; October 4, 1993) and 
Executive Order 13563 (76 FR 3821; January 21, 2011), this action is 
not a ``significant regulatory action'' and is, therefore, not subject 
to review by the Office of Management and Budget (OMB). Nevertheless, 
since this is a companion action to a proposed rulemaking which is a 
significant regulatory action, EPA has provided this action to OMB to 
assist with review of the companion proposal.

B. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under 
the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB has previously 
approved the information collection activities contained in the 
existing regulations and has assigned OMB control number 2040-0004. 
This rule contains no new requirements for reporting and recordkeeping.

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 the RFA. In 
making this determination, EPA concludes that the impact of concern for 
this rule is any significant adverse economic impact on small entities 
and that the agency is certifying that this rule will not have a 
significant economic impact on a substantial number of small entities 
because the rule has no net burden on the small entities subject to the 
rule. EPA is limiting its changes to the date that a facility may 
submit an initial notification to the permitting or control authority. 
The agency has therefore concluded that this action will have no net 
regulatory burden for all directly regulated small entities.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. The action imposes 
no enforceable duty on any state, local or tribal governments, or the 
private sector.

E. Executive Order 13132: Federalism

    This action does not have significant federalism implications under 
Executive Order 13132, entitled ``Federalism'' (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 create new binding legal requirements that 
substantially and directly affect Tribes under Executive Order 13175, 
entitled ``Consultation and Coordination with Indian Tribal 
Governments'' (65 FR 67249; November 9, 2000). This action does not 
have significant federalism implications under Executive Order 13132, 
entitled ``Federalism'' (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 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    EPA interprets Executive Order 13045, entitled ``Protection of 
Children from Environmental Health Risks and Safety Risks'' (62 FR 
19885, April 23, 1997), as applying only to those regulatory actions 
that concern environmental health or safety risks that EPA has reason 
to believe may disproportionately affect children, per the definition 
of ``covered regulatory action'' in section 2-202 of the Executive 
Order. This action is not subject to Executive Order 13045 because it 
does not concern an environmental health risk or safety risk.

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

    This action is not subject to Executive Order 13211, entitled 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (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 action does not involve technical standards; thus, the 
requirements of Section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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

    EPA believes that this action is not subject to Executive Order 
12898, entitled ``Federal Actions to Address Environmental Justice in 
Minority Populations and Low-Income Populations'' (59 FR 7629; February 
16, 1994), because it does not establish an environmental health or 
safety standard. This regulatory action is a minor date change for 
filing a notice contained in a previously promulgated regulatory action 
and does not have any impact on human health or the environment.

K. Congressional Review Act (CRA)

    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is 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 
facilities, Waste treatment and disposal, Water pollution control.

Michael S. Regan,
Administrator.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 423 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. Amend Sec.  423.19 by revising paragraph (f)(1) to read as follows:


Sec.  423.19  Reporting and recordkeeping requirements.

* * * * *
    (f) * * *
    (1) Notice of Planned Participation. For sources seeking to qualify 
as an electric generating unit that will achieve permanent cessation of 
coal combustion by December 31, 2028, under this part, a Notice of 
Planned Participation shall be made to the permitting authority, or to 
the control authority in the case of an indirect discharger, no later 
than June 27, 2023.
* * * * *
[FR Doc. 2023-04985 Filed 3-28-23; 8:45 am]
BILLING CODE 6560-50-P


