1) The Board incorporates by reference 40 CFR 423.13(g)(3)(i) and 423.16 (2020), as amended at 85 Fed. Reg. 64650 (Oct. 13,
2020); 40 CFR 423.13(k)(3) and (o), 423.18, and 423.19, as added at 85 Fed.
Reg. 64650 (Oct. 13, 2020); 40 CFR 423.19(f)(1) as amended at 88 Fed. Reg.
18440 (March 29, 2023); and appendix A to 40 CFR 423 (2020). These
incorporations include no later amendments or editions.
A) Flue Gas Desulfurization (FGD) Wastewater
Discharges by Electric Generating Units (EGUs) Seeking Voluntary Incentives
Participation (VIP). The owner or operator of an EGU opting into VIP may seek
to operate under alternative standards for discharges of FGD wastewater, as
defined in 40 CFR 423.11(n), incorporated by reference in subsection (b), as
provided in 40 CFR 423.13(g)(3)(i) after fulfilling the certification
requirements in 40 CFR 423.19(a), (b), and (h).
BOARD NOTE: This subsection (c)(1)(A) derives from 40 CFR 423.13(g)(3)(i) and 423.19(h). USEPA calls VIP "Voluntary Incentives Program,"
and the Board evokes enough of that name as is evocative but stops short of
using the same name. USEPA stated that its Voluntary Incentives Program applies
only to direct discharges and is not finalized as to indirect discharges. 85
Fed. Reg. 64650, 64660, 64675 (Oct. 13, 2020). USEPA's rules, however,
expressly contemplate applying its elements to indirect discharges. See 40 CFR 423.19(h)(3).
B) Flue Gas
Desulfurization (FGD) Wastewater Discharges by EGUs Initiating Cessation of
Coal Burning. The owner or operator of an EGU that will undergo permanent
cessation of coal combustion, as defined in 40 CFR 423.11(w), incorporated by
reference in subsection (b), may seek to operate under alternative standards
for discharges of FGD wastewater, as defined in 40 CFR 423.11(n), incorporated
by reference in subsection (b), as provided in 40 CFR 423.16(e)(1) after
fulfilling the certification requirements in 40 CFR 423.19(a), (b), and (f).
BOARD NOTE: This subsection (c)(1)(B) derives from 40 CFR 423.16(e)(1) and 423.19(f).
C) Notice of Material Delay. An EGU that will
undergo permanent cessation of coal combustion or one that opted into VIP under
alternative standards under subsection (c)(1)(A) operating under alternative
standards under subsection (c)(1)(B) must submit a notice of significant delay
as required by 40 CFR 423.19(j).
BOARD NOTE: This subsection (c)(1)(C) derives from 40 CFR 423.19(j).
D) FGD
Wastewater Discharges by Low Utilization EGUs (LUEGUs). The owner or operator
of an EGU that qualifies as a LUEGU, as defined in 40 CFR 423.11(z),
incorporated by reference in subsection (b), may seek to operate under the
alternative standards for discharges of FGD wastewater, as defined in 40 CFR 423.11(n), incorporated by reference in subsection (b), provided in 40 CFR 423.16(e)(2) after fulfilling the certification requirements in 40 CFR 423.19(a), (b), and (e).
BOARD NOTE: This subsection (c)(1)(D) derives from 40 CFR 423.16(e)(2) and 423.19(e).
E) Bottom Ash (BA) Transport Water
Discharges. Discharge of BA transport water, as defined in 40 CFR 423.11(p),
incorporated by reference in subsection (b), is prohibited and only allowed as
provided in 40 CFR 423.16(g) after complying with the best management practices
requirements of 40 CFR 423.13(k)(3) and fulfilling the certification
requirements in 40 CFR 423.19(a) through (d).
BOARD NOTE: This subsection (c)(1)(E) derives from 40 CFR 423.13(k)(3), 423.16(g), and 423.19(c) and (d).
F) EGUs Seeking to Transfer Between
Applicable Discharge Limitations. Subject to the limitations in subsection
(c)(1)(G), the owner or operator of an EGU may seek to transfer applicable
discharge standards, as provided in 40 CFR 423.13(o), after fulfilling the
certification requirements in 40 CFR 423.19(a), (b), and (i). The permissible
transfers are the following:
i) Before
December 31, 2023, from limitations applicable to an EGU initiating cessation
of coal combustion under subsection (c)(1)(B) to those applicable to a LUEGU
under subsection (c)(1)(D);
ii)
Before December 31, 2023, from VIP limitations under subsection (c)(1)(A) to
those applicable to a LUEGU under subsection (c)(1)(D);
iii) Before December 31, 2025, from VIP
limitations under subsection (c)(1)(A) to those applicable to an EGU initiating
cessation of coal combustion under subsection (c)(1)(D);
iv) Before December 31, 2025, from
limitations applicable to an EGU initiating cessation of coal combustion under
subsection (c)(1)(B) to VIP limitations under subsection (c)(1)(A);
v) Before December 31, 2025, from limitations
applicable to a LUEGU under subsection (c)(1)(D) to generally applicable
limitations for discharges of FGD wastewater and BA transport water under 40 CFR 423.16;
vi) Before December 31,
2025, from limitations applicable to a LUEGU under subsection (c)(1)(D) to VIP
limitations under subsection (c)(1)(A); and
vii) Before December 31, 2025, from
limitations applicable to a LUEGU under subsection (c)(1)(D) to those
applicable to an EGU initiating cessation of coal combustion under subsection
(c)(1)(B).
BOARD NOTE: This subsection (c)(1)(F) derives from 40 CFR 423.13(o) and 423.19(i). USEPA calls VIP "Voluntary Incentives Program," and
the Board evokes enough of that name as is evocative but stops short of using
the same name. USEPA stated that its Voluntary Incentives Program applies only
to direct discharges and is not finalized as to indirect discharges. 85 Fed.
Reg. 64650, 64708 n. 166 (Oct. 13, 2020). USEPA's rules, however, expressly
contemplate applying its elements to indirect discharges. See 40 CFR 423.19(i)(1).
G)
Conditions for Transfer Between Applicable Discharge Limitations. Conditions
apply to transfer between applicable discharge limitations:
i) An EGU must comply with all currently
applicable requirements before filing a notice under 40 CFR 423.19(i) seeking
transfer to other applicable discharge limitations, as provided in 40 CFR 423.13(o)(2); and
ii) An EGU
seeking a transfer described in subsections (c)(1)(F)(iii) through
(c)(1)(F)(vii) must comply with more stringent limitations that already apply,
instead of the less stringent limitations sought.
BOARD NOTE: This subsection (c)(1)(G) derives from 40 CFR 423.13(o)(2) and (o)(3).
H) An EGU that would otherwise qualify as a
LUEGU or as ceasing combustion of coal before December 31, 2028 will continue
to qualify if the conditions in 40 CFR 423.18 are true and after the owner or
operator fulfills the certification requirements in 40 CFR 423.19(a), (b), and (g).
BOARD NOTE: This subsection (c)(1)(H) derives from 40 CFR 423.16(e)(1) and (e)(2), 423.18, and 423.19(g). The requirements of 40 CFR 423.18 directly apply to conditions in NPDES permits. The certification
requirement of 40 CFR 423.19(g) allows the discharge standards for the LUEGU or
EGU ceasing coal combustion subcategory continue to continue to apply to
indirect dischargers under the same circumstances and conditions.
2) No person subject to
the pretreatment standards incorporated by reference in subsection (c)(1) may
cause, threaten, or allow the discharge of any contaminant to a POTW in
violation of those standards.
