07/18/2018 - Clean Water Act - Regulatory Tracker

Power Plant Effluent Limits

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Quick Take

EPA is enforcing the 2015 and 2020 rules while it works on a supplemental proposal, which the agency expects to release in Nov. 2022.

Why it Matters

Steam power plant wastewater discharges include arsenic, lead, mercury, selenium, chromium, and cadmium. Prior to the Obama administration, EPA had not updated regulations for power plant discharges to surface waters since 1982 and that rule did not focus on these toxic metals. Over the past 30 years, steam power plants—particularly coal-fired power plant—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 issued EO 13990, an order that directed all agencies to review and consider revising rules issued and other agency actions taken during the Trump administration. Following this order, President Biden released a list of actions that agencies were ordered to review in accordance with the EO, and this list included the Steam Reconsideration Rule. EPA announced on July 26, 2021 that it is initiating a supplemental rulemaking to strengthen the ELGs for coal-fired steam electric generating units. The agency also said it would implement and enforce the 2015 and 2020 rules in the meantime.

Timeline of Events

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

Nov. 3, 2015 EPA finalizes these effluent limitations guidelines. They go into effect on 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. The Fifth Circuit consolidates similar cases with this one. Southwestern Electric Power Company v. EPA, 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. Southwestern Electric Power Company v. EPA, No. 15-60821 (5th Cir.).

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, No. 17-cv-00817 (D.D.C.),

June 6, 2017  EPA proposes delaying compliance deadlines in the rule and takes comment on whether the agency should specify a time period for delay. 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 The environmental organizations suing EPA in the District Court for D.C. move for summary judgment against EPA for unlawfully delaying compliance deadlines under Section 705 of the APA. Clean Water Action et al. v. Pruitt, No. 17-cv-00817 (D.D.C.).

Aug. 11, 2017 EPA Administrator Pruitt writes a letter telling the administrative petitioners that EPA will 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. Southwestern Electric Power Company v. EPA, No. 15-60821 (5th Cir.).

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.”

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 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.).

April 18, 2018 The District Court for D.C. granted EPA’s motion to dismiss the case by environmental organizations challenging the delay of compliance deadlines. Clean Water Action et al. v. Pruitt, No. 17-cv-00817 (D.D.C.).

April 12, 2019 The Fifth Circuit vacates in part the 2015 Steam Electric Power Generating Point Source Category Rule, finding that the legacy wastewater and residual combustion leachate provisions were not based on Best Available Technology Economically Available (BAT). Southwestern Electric Power Co. v. EPA, No. 15-60821 (5th Cir.).

Oct. 29, 2018 The District Court for the District of Arizona grants 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. Southwestern Electric Power Company v. EPA, No. 15-60821 (5th Cir.).

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 proposal includes certain exemptions for “high flow” facilities, low utilization boilers, and boilers retiring by 2028. 

Aug. 31, 2020 EPA releases 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.). Other environmental groups file a lawsuit asking the Fourth Circuit to review the final Steam Electric Reconsideration Rule. Appalachian Voices v. EPA, No. 20-2187 (4th Cir.).

Nov. 19, 2020 The D.C. Circuit transfers Clean Water Action v. Andrew Wheeler to the Fourth Circuit, where it is consolidated with 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.).

June 1, 2021 The Fourth Circuit Court of Appeals agrees to continue holding the case challenging the Steam Electric Reconsideration Rule in abeyance until July 24, 2021. 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 2015 and 2020 rules. As the agency is working on a rulemaking, EPA asks the Fourth Circuit to continue holding the case challenging the Steam Electric Reconsideration Rule in abeyance. Appalachian Voices v. EPA, No. 20-2187 (4th Cir.).

Aug. 3, 2021 EPA publishes a notice of supplemental rulemaking on the Steam Electric Power Generating Effluent Limitations Guidelines and Standards in the Federal Register. The notice announces EPA’s intent to publish the proposed rulemaking for comment by Fall 2022.

Sep. 1, 2021 EPA asks the Fourth Circuit to continue holding the case challenging the Steam Electric Reconsideration Rule in abeyance pending its supplemental rulemaking. Appalachian Voices v. EPA, No. 20-2187 (4th Cir.).

Sept. 14, 2021 EPA publishes the Preliminary Effluent Guidelines Plan 15 in the Federal Register and announces a 30-day public comment period on the plan. In the guidelines, EPA addresses new technology that it is considering for its Fall 2022 rulemaking and confirms that the 2020 rule will remain in effect at this time.