§ 423.18 — Permit Conditions

All permits subject to this part shall include the following permit conditions:

(a) An electric generating unit shall qualify as a low utilization electric generating unit, permanently ceasing the combustion of coal by December 31, 2028, or permanently ceasing the combustion of coal by December 31, 2034, if such qualification would have been demonstrated absent the following qualifying event:

(1) An emergency order issued by the Department of Energy under section 202(c) of the Federal Power Act;

(2) A reliability must run agreement issued by a Public Utility Commission; or

(3) Any other reliability-related order, energy emergency alert, or agreement issued by a competent electricity regulator (e.g., an independent system operator) which results in that electric generating unit operating in a way not contemplated when the certification was made; or

(4) The operation of the electric generating unit was necessary for load balancing in an area subject to a declaration under 42 U.S.C. 5121 et seq., that there exists:

(i) An “Emergency”; or

(ii) A “Major Disaster”; and

(iii) That load balancing was due to the event that caused the “Emergency” or “Major Disaster” in paragraphs (a)(4)(i) and (ii) of this section to be declared.

(b) Any facility providing the required documentation pursuant to § 423.19(i) may avail itself of the protections of the permit condition in paragraph (a) of this section.

(c) A facility discharging permeate or distillate from an FGD wastewater or combustion residual leachate treatment system and satisfying § 423.19(n) shall be deemed to meet the following requirements:

(1) The FGD wastewater requirements of § 423.13(g)(4) for up to one year after the date determined pursuant to § 423.11(t); and

(2) The combustion residual leachate requirements of § 423.13(l)(1) for up to one year after the date determined pursuant to § 423.11(t).

(d) (1) Notwithstanding the dates associated with any limitations in § 423.13(g), (k), or (l), a permitting authority shall establish, in a facility's permit, an alternative applicability date and, where appropriate, an associated schedule of milestones, for achieving the required limitations when the facility meets one of the circumstances in paragraph (d)(3) of this section, provided that the facility submits an initial request letter pursuant to § 423.19(q) and the permitting authority finds that request factually supported in the letter and attachments provided.

(2) Notwithstanding the dates associated with any notice of planned participation required to be submitted under § 423.19(g), (j), or (l), a permitting authority may accept a late notice of planned participation provided that the facility meets one of the circumstances in paragraph (d)(3) of this section, submits an initial request letter pursuant to § 423.19(q), and the permitting authority finds that request factually supported in the letter and attachments provided. Transfers pursuant to § 423.13(o)(1)(ii) but receiving alternative § 423.19(l) submission dates in this paragraph (d)(2) shall be deemed timely. In no case may a late notice of planned participation be accepted pursuant to this paragraph (d)(2) after December 31, 2028.

(3) Circumstances which a permitting authority shall find warrant an alternative applicability date or later notice of planned participation submission date based on factual support under paragraph (d)(1) or (2) of this section include:

(i) Where a facility needs an alternative applicability date upon making a permissible transfer between limitations prior to the deadlines in § 423.13(o) due to:

(A) An unexpected change in regional capacity market prices; or

(B) An unexpected change in local demand which materially exceeds projections made in the most recent iterations of integrated resource plans or other planning documents;

(ii) Where a facility has one or more electric generating units using a wastewater treatment system treating combined wastewater (e.g., wastewater from a single flue gas desulfurization system servicing different units) and needs an alternative applicability date after making a decision to back out of a commitment to permanently cease coal combustion at one or more different electric generating units at the same plant due to:

(A) An unexpected change in regional capacity market prices; or

(B) An unexpected change in local demand which materially exceeds projections made in the most recent iterations of integrated resource plans or other planning documents;

(iii) Where a facility needs an alternative applicability date because it faces an unexpected supply chain issue that delays a necessary component (not merely a preferred component where there are reasonable substitutes) at a key stage of fabrication or installation such that the timeline for reaching steady-state treatment is delayed; or

(iv) Where a facility faces any other circumstance that requires additional time and is wholly outside both the facility's control and the facility's ability to plan for.

(4) A facility availing itself of this paragraph (d) may consider the alternative applicability dates or alternative notice of planned participation submission dates when evaluating compliance for purposes of § 423.13(o)(2).