On April 25, the EPA postponed the remaining compliance dates for steam powered electric generation plants to implement more stringent effluent limits under the Clean Water Act.  EPA postponed the dates (some of which could have taken effect as early as November 2018) to reconsider the rule after receiving petitions from interested groups.

The rule requires more stringent technology-based effluent limitations guidelines and standards for particular waste streams at power plants, including: fly ash transport water, bottom ash transport water, flue gas mercury control (“FGMC”) wastewater, flue gas desulfurization (“FGD”) wastewater, gasification wastewater, and combustion residual leachate.  The rule set numeric limitations for the discharge of several pollutants (e.g., mercury, arsenic, selenium, and nitrate/nitrite) for FGD and gasification wastewater, and it imposed a zero discharge limitation for fly and bottom ash transport water, and FGMC wastewater.  The rule contained similar limitations for plants discharging to publicly owned treatment works.  Existing dischargers were expected to comply with the new limits as early as November 2018, but no later than December 2023.  The Federal Register notice for the rule may be found here.

The rule was subsequently challenged by the industry, and EPA was set to file its response with the Fifth Circuit Court of Appeals on May 4.  However, after the change in administrations, the industry petitioned the EPA to reconsider and stay the rule.  The industry argued that:

  • EPA’s use of confidential business information to withhold its analyses violated principles of transparency;
  • EPA did not demonstrate that some of the new effluent guidelines were technologically available or feasible for integrated gasification combined cycle and subbituminous coal plants;
  • EPA relied on out-of-date data in assessing bottom ash transport water; and,
  • EPA did not consider the cumulative impact of the new effluent guidelines and other new regulations affecting the steam powered electric industry.

In a letter to the industry groups, new EPA Administrator Scott Pruitt agreed to reconsider the rule and conduct new rulemaking to stay the compliance dates that have not yet passed.  Pursuant to the Administrator’s letter, the EPA postponed the rule’s compliance dates for existing dischargers to meet the new effluent limits.  Additionally, the Fifth Circuit granted EPA’s motion to stay the case until August so that EPA can reconsider the rule.