Power Plant Effluent Limits

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

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 has delayed compliance deadlines of major portions of the rule by 2 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.

History

On June 7, 2013, EPA proposed limits on toxic pollutants from power plant wastewater discharged into rivers.

On November 3, 2015, EPA finalized these water quality standards. They went into effect January 4, 2016.

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

Trump Era

On March 24, 2017, the Utility Water Act Group petitioned EPA to reconsider the rule.

On April 5, 2017, the Small Business Administration petitioned EPA to reconsider the rule.

On April 24, 2017, in response to a request from EPA, the Fifth Circuit stayed litigation against the rule until August 12, 2017 to give EPA time to consider rewriting the rule.

On April 25, 2017, EPA announced it would delay future compliance deadlines in the rule for as long as litigation is pending. EPA invoked 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.

On May 3, 2017, a coalition of environmental and public health groups, represented by Earthjustice sued 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.C. Cir.).

On June 6, 2017, EPA proposed 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.

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

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

On August 22, 2017, in response to a request from EPA, the Fifth Circuit agreed to sever the claims related to the delayed deadlines and to put those claims on hold  while EPA revisits the underlying standards. EPA has noted elsewhere that it could take three years to issue new standards.

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

On September 21, 2017 EPA filed a motion to dismiss the May 3, 2017 lawsuit which accused the agency of unlawfully delaying compliance deadlines.

On October 6, 2017 the environmental groups asked the court to deny EPA’s motion to dismiss.

On January 30, 2018 the Center for Biological Diversity sued EPA over its two year delay of the rule.

For litigation updates see Earthjustice’s website.

 

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