07/18/2018 - Regulatory Tracker

Power Plant Effluent Limits

by EELP Staff

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Why it Matters

Steam power plant wastewater discharges include arsenic, lead, mercury, selenium, chromium, and cadmium. Regulations for power plant discharges to surface waters were last updated in 1982 and did not focus on these toxic metals. Over the past 30 years, steam power plants – particularly coal-fired power plants – have begun generating new wastewater streams containing these pollutants, from installation and operation of air pollution control equipment and from gasification of coal.

In 2015, EPA finalized new effluent limitations guidelines and standards (ELGs) for steam electric power generators under the Clean Water Act. The new ELGs set limits on the amount of toxics metals and other pollutants that steam electric power plants can release in their wastewater. Industry groups challenged the rule in court and, once the Trump administration began, petitioned the EPA to reconsider the rule. EPA delayed the ELGs and ultimately revised them in its 2020 Steam Electric Reconsideration Rule, incorporating significant exemptions and extending compliance deadlines. Environmental groups filed challenges and President Biden directed EPA to review the rule and consider changes in EO 13990.

Current Status

When President Biden took office on Jan. 20, 2021 he signed EO 13990 that directed all agencies to review and consider revising rules issued and other agency actions taken during the Trump administration. EPA announced on July 26, 2021 that it is initiating a supplemental rulemaking to strengthen the ELGs for coal-fired steam electric generating units. It also said it would implement and enforce the 2020 rule in the meantime.

Timeline of Events

Obama Administration
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June 7, 2013 EPA proposes limits on toxic pollutants from power plant wastewater discharged into rivers.

Nov. 3, 2015 EPA finalizes these effluent limitations guidelines. They go into effect Jan 4, 2016.

Nov. 20, 2015 Southwestern Electric Power Company and an industry group, the Utility Water Act Group, challenge the rule in the Fifth Circuit. On Dec. 8, 2015, other similar cases are consolidated with this one. Southwestern Electric Power Company v. EPA, case no. 15-60821 (5th Cir.)

Trump Administration
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March 24, 2017 The Utility Water Act Group petitions EPA to reconsider the rule.

April 5, 2017 The Small Business Administration petitions EPA to reconsider the rule.

April 24, 2017 In response to a request from EPA, the Fifth Circuit stays litigation against the rule until Aug. 12, 2017, to give EPA time to consider rewriting the rule.

April 25, 2017 EPA announces it will delay future compliance deadlines in the rule for as long as litigation is pending. EPA invokes Section 705 of the Administrative Procedure Act (APA), arguing that even if the rule was effective in 2016, so long as certain compliance deadlines in the rule have not yet passed, the agency can postpone those deadlines.

May 3, 2017 A coalition of environmental and public health groups, represented by Earthjustice sues EPA for unlawfully delaying compliance deadlines under Section 705 of the APA. Clean Water Action et al. v. Pruitt, civil action no. 17-cv-00817 (D.D.C.)

June 6, 2017  EPA proposes delaying compliance deadlines in the rule, perhaps for a period of two years. EPA notes that it has already delayed the deadlines pending litigation but proposes this delay to cover the same provisions should litigation end.

June 14, 2017 Clean Water Action et al. moves for summary judgment (a ruling without a full trial) in the District Court for D.C. against EPA for unlawfully delaying compliance deadlines under Section 705 of the APA.

Aug. 11, 2017 EPA Administrator Pruitt writes a letter to rule petitioners suggesting EPA would issue new power plant effluent standards.

Aug. 22, 2017 In response to a request from EPA, the Fifth Circuit agrees to sever the claims related to the delayed deadlines and to put these claims on hold while EPA revisits the underlying standards. EPA notes elsewhere that it could take three years to issue new standards.

Sep. 18, 2017 EPA finalizes the rule to delay compliance deadlines of major portions of the rule by two years, to Nov. 1, 2020 “unless the permitting authority establishes a later date.”

Sep. 21, 2017 EPA files a motion to dismiss the May 3, 2017 lawsuit which accused the agency of unlawfully delaying compliance deadlines. The District Court for D.C. granted EPA’s motion in April 2018 and threw out the case.

Jan. 30, 2018 The Center for Biological Diversity sues EPA over its two-year delay of the rule. Center for Biological Diversity v. Pruitt, 4:18-cv-00050 (D. Az.)

April 3, 2018 The EPA filed a motion to dismiss the Jan. 30 lawsuit brought by the Center for Biological Diversity based on a lack of subject matter jurisdiction. This was followed by a motion to dismiss from industry group the Utility Water Act Group. Center for Biological Diversity v. Pruitt, 4:18-cv-00050 (D. Az.)

Oct. 29, 2018 The District Court for the District of Arizona granted EPA’s motion to dismiss because the Clean Water Act exclusively grants jurisdiction to the federal courts of appeals to review an EPA action approving or promulgating an effluent limitation. Center for Biological Diversity v. Pruitt, 4:18-cv-00050 (D. Az.)

Aug. 28, 2019 The Fifth Circuit Court of Appeals upholds EPA’s Sept. 2017 delay of compliance deadlines for effluent limits. The court said the postponement rule was a “narrow reconsideration” of the 2015 deadlines.

Nov. 22, 2019 EPA publishes a proposed rule revising the 2015 technology-based effluent limitations guidelines and standards (ELGs) for the steam electric power generating point source category applicable to flue gas desulfurization (FGD) wastewater and bottom ash transport water. The public comment period runs through Jan. 21, 2020. The proposal includes certain exemptions for “high flow” facilities, low utilization boilers, and boilers retiring by 2028. Such exemptions were reportedly sought by the Tennessee Valley Authority.

Aug. 31, 2020 EPA released its final revisions to the 2015 steam electric power effluent limitations guidelines and standards for wastewater coming from coal-fired power plants. The rule revises the 2015 standards to extend timelines for compliance and exempt coal facilities that are closing, repowering, or switching to natural gas by 2028. The rule will go into effect 60 days after it is published in the federal register.

Oct. 13, 2020 EPA publishes its final Steam Electric Reconsideration Rule in the Federal Register. The rule goes into effect on Dec. 14, 2020.

Nov. 2, 2020 Environmental groups file a lawsuit asking the D.C. Circuit to review the final Steam Electric Reconsideration Rule. Clean Water Action v. Andrew Wheeler, No. 20-1436 (D.C. Cir.).

Nov. 2, 2020 Environmental groups file a lawsuit asking the 4th Circuit to review the final Steam Electric Reconsideration Rule. Appalachian Voices v. EPA, No. 20-2187 (4th Cir.).

Biden Administration
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Jan. 20, 2021 President Biden signs EO 13990 that directs all agencies to review and consider revising rules issued and agency actions taken during the Trump administration.

Jan. 20, 2021 The Fourth Circuit holds its case in abeyance pending the expiration of the 120 day window to petition for review of the rule. Appalachian Voices v. EPA, No. 20-2187 (4th Cir.).

July 26, 2021 EPA announces it is initiating a new rulemaking process to strengthen pollution discharge limits for coal-fired steam electric generating units. While it develops this supplemental rulemaking, EPA says it will implement and enforce the 2020 rule.

Aug. 3, 2021 EPA publishes notice of its supplemental rulemaking initiative in the Federal Register.

For More Information

For litigation updates, see Earthjustice’s website.