The Nickel Report

On October 2, EPA published the proposed effluent limitations guidelines (ELG) Deadline Extension Rule for the steam electric power generating industry to revise a series of provisions in the 2024 ELG rule. These revisions include extending the notice of planned participation (NOPP) and zero-discharge compliance deadlines, adding a new transfer provision to allow facilities to switch between compliance alternatives, and creating new authority for state permitting agencies to include alternative applicability dates based on site-specific factors. EPA also seeks comment on several key issues, including some that may inform a separate, future rulemaking. Comments on EPA’s proposal are due November 3.

The proposed rule, if issued as a final rule, would likely provide greater flexibility for electric generating units (EGUs) to meet ELG compliance deadlines, respond to unexpected market changes and supply chain uncertainty, and switch between compliance alternatives.

Background

The Clean Water Act (CWA) prohibits the unauthorized discharge of any pollutant to waters of the United States (WOTUS). Dischargers can obtain authorization to discharge limited pollutants through a National Pollutant Discharge Elimination System (NPDES) permit. An NPDES permit limits the amount of pollutants that can be discharged based on water quality standards and technology-based limits. Technology-based limits are set in accordance with effluent limitation guidelines (ELGs) promulgated by the Environmental Protection Agency (EPA). Included in the 59 industries for which EPA has promulgated ELGs is the steam electric power generating industry (e.g., coal-fired power plants). EPA previously promulgated final regulations revising these ELGs in 2015, 2020, and 2024.

Key Elements of EPA’s Proposed ELG Extension Rule

EPA’s proposed rule includes provisions to extend NOPP and zero-discharge compliance deadlines, allow transfers between zero-discharge and 2034 subcategory compliance regimes, require alternative applicability dates, allow late NOPP submissions, and clarify the must-run provision.^[1]

Extension of NOPP Submission Deadline

EPA proposes to extend the deadline to submit a NOPP for the 2034 cessation subcategory by six years to December 31, 2031.  According to EPA, this deadline will give the owner or operator of an EGU more time to decide whether to participate in the 2034 cessation subcategory, which requires them to comply with certain requirements set forth in the 2024 rule. EPA is soliciting comments on alternative deadlines for submitting a NOPP and whether there are significant reliance interests related to the 2025 deadline.

Contemporaneously with EPA’s notice of proposed rulemaking, it published a direct final rule to extend the NOPP submission deadline to December 31, 2031, because, according to EPA, this change is noncontroversial, and notice-and-comment proceedings are unnecessary. This direct final rule will take effect on December 1 without further notice, unless EPA receives adverse comments by November 3. In that case, EPA will withdraw the direct final rule and address comments in any subsequent final rule.

Extension of Zero-Discharge Compliance Deadline

EPA proposes to extend the zero-discharge compliance deadlines for flue gas desulfurization wastewater (FGDW), bottom ash transport water (BATW), and combustion residual leachate (CRL) effluents standards by five years. In the 2024 rule, zero-discharge requirements must be met as soon as possible but “no later than” December 31, 2029. EPA proposes to extend the “no later than” deadline to December 31, 2034. EPA cites three primary reasons for this revision. First, the 2029 deadline may not be feasible due to possible unavailability of control technologies or their component parts. Second, extending the deadline will allow facilities that recently invested to comply with the 2020 rule more time to amortize technology costs, which could make it more feasible to comply with the 2024 rule. Third, the proposed deadline will allow facilities to transfer out of the 2034 subcategory and continue to generate electricity to satisfy national energy needs.

New Transfer Provision

EPA proposes to establish new transfer provisions to increase flexibility in the face of unexpected operational changes. Specifically, EPA proposes to allow transfers between zero-discharge requirements and the 2034 cessation subcategory compliance tracks. Under this proposed provision, facilities would be able to transfer, in either direction, up until the December 31, 2034, deadline.

Alternative Applicability Date and Late NOPP

EPA proposes a requirement for permitting authorities to extend applicability dates under the 2020 or 2024 ELG rules when an unexpected and uncontrollable circumstance occurs.^[2] In particular, EPA proposes to require permitting authorities to establish an alternative applicability date where a facility 1) transfers between limitations or backs out of a commitment to permanently cease coal combustion due to an unexpected change in regional capacity markets or local demand, 2) faces unexpected supply chain issues, or 3) faces any other circumstance that requires additional time and is wholly outside both the facility’s control and the facility’s ability to plan.^[3] As proposed, this requirement would allow an alternative applicability date and associated milestones to be included in the permit, despite existing regulatory requirements. Additionally, EPA proposes to add a provision that would allow a permitting authority to accept a late NOPP submission if the facility experiences one of these circumstances. According to the proposal, a facility wishing to submit a late NOPP must submit an initial request letter and regular progress reports to its permitting authority.

Clarifications to Must-Run Provision

EPA proposes to clarify four aspects of the 2024 Rule’s “must-run” provision. First, the “must-run” provision is intended to cover any reliability must-run agreement or similar order, including FERC’s acceptance of a reliability must-run agreement. Second, an EGU’s certification to cease coal combustion followed by a Balancing Authority’s projection that it will cause a resource adequacy shortfall constitutes a qualifying event under the must-run provision. Third, any event listed in the must-run provision would trigger the reporting and recordkeeping requirements. Lastly, the term “increased production” in 40 C.F.R. § 423.19(i)(3) includes extended production.

EPA Solicits Comment on Key Issues

In response to industry feedback, EPA also seeks comment on the “availability” and “economic achievability” of zero-discharge technologies, cessation subcategories, and unmanaged CRL.

• Zero-Discharge Technologies. EPA solicits information on: pilot study and bench test information (technological availability); cost projection information (economic achievability); newly installed systems (technological availability and economic achievability); and resource adequacy and reliability.
• Cessation Subcategories. EPA solicits comment on repealing the 2028 and 2034 cessation subcategories.
• Unmanaged CRL. EPA solicits comment on any pilot or full-scale treatment data for unmanaged CRL. EPA also solicits comment on any engineering cost estimates, bids, vendor quotes, or other cost information regarding treatment of unmanaged CRL.

[1] EPA’s proposed rule would clarify the must-run provision and associated reporting requirements in 40 C.F.R. § 423.18.

[2] According to EPA, issues are “unexpected” to the extent that “documentation shows previously established projections for demand, market prices, or equipment/component procurement timing are no longer reflective of actual circumstances.” Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category—Deadline Extensions, 90 Fed. Reg. 47,693, 47,706 n.20 (proposed Oct. 2, 2025).

[3] 90 Fed. Reg. 47,693, 47,792 (proposed Oct. 2, 2025).