07/18/2018 - Regulatory Rollback

Power Plant Effluent Limits

by Hana Vizcarra, Robin Just

The Environmental & Energy Law Program is tracking the environmental regulatory rollbacks of the Trump administration. Click here for the list of rules we are following. If you’re a reporter and would like to speak with an expert on this rule, please email us.

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.

Current Status

Industry groups sued the Environmental Protection Agency (EPA) over the original rule, but the Trump EPA delayed compliance deadlines of major portions of the rule by two years, to November 2020. The initial challenge by industry groups to the Obama EPA rule has been stayed. Meanwhile, environmental and public health groups have filed lawsuits over EPA’s delays. A federal court in Arizona has dismissed one such suit for lack of subject matter jurisdiction.

History

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 Era

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.

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.

For More Information

For litigation updates, see Earthjustice’s website.