Federal Court Vacates Parts of Obama EPA’s ELG Rule

In a legal victory for environmental groups, a federal court has vacated key portions of the Environmental Protection Agency's (EPA's) November 2015-promulgated effluent limitations guidelines (ELGs) for steam electric power plants, deeming them "unlawful."

The decision adds a dramatic new element of uncertainty in timing of the rule, which the Trump administration has said it expects to finalize by December 2019. The power sector has been preparing to comply with the 2015 ELG rule, which sought to amend an ELG rule last updated in 1982 by setting the first federal limits on levels of toxic metals in wastewater that can be discharged from existing coal, gas, oil, and nuclear plants.

The U.S. Court of Appeals for the Fifth Circuit on April 12 threw out rules pertaining to legacy wastewater and combustion residual leachate streams, and remanded them to the agency for reconsideration. Circuit Judge Stuart Kyle Duncan agreed with various environmental petitioners that the agency "arbitrarily" set best available technology economically available (BAT) for legacy wastewater, which includes wastewater from five of six streams generated before December 2023, and leachate, which is liquid that percolates through landfills and impoundments. The rule's BAT for those streams uses "the same archaic technology in place since 1982-namely, impoundments," he ruled.

"It was as if Apple unveiled the new iMac, and it was a Commodore 64."

BAT for Some Streams Is Outdated

Duncan noted BAT for the other five streams addressed by the rule-flue gas desulfurization (FGD) wastewater, fly ash transport wastewater, bottom ash transport wastewater, flue gas mercury control (FGMC) wastewater, and gasification wastewater-adopt modern technologies. Yet, the legacy wastewater and combustion residual leachate streams "account for massive amounts of water pollution," he wrote. "For instance, leachate alone would qualify as the 18th-largest source of water pollution in the nation, producing more toxic-weighted pound equivalents than the entire coal mining industry."

While legacy wastewater is not a distinct type of waste stream, according to the EPA, the term describes wastewater from five of the streams (FGD, fly ash, bottom ash, FGMC, and gasification wastewater) that is generated before the EPA's proposed dates of November 2020 and December 2023. Under the 2015 rule, legacy wastewater generated before those dates would be regulated by the less-stringent best practicable control technology (BPT) standards, limitations on direct discharges of pollutants that were originally slated to end in 1984 but later extended to 1989, which set surface impoundments as the BAT for the streams.

However, as the judge noted, the EPA hasn't updated ELGs for steam plants since 1982. "The last time these guidelines were updated was during the second year of President Reagan's first term, the same year that saw the release of the first CD player, the Sony Watchman pocket television, and the Commodore 64 home computer," he noted. "This means that legacy wastewater is allowed by the final rule to contain the same quantity of toxic pollutants allowed since 1982."

Guidelines That Don't Address New Technology

Since its last revision, "Happily, though, EPA reports that, '[I]n the several decades since the steam electric ELGs were last revised,' technologies that are more effective, 'affordable,' and 'widely available' have 'increasingly been used at plants,'" Duncan wrote.

The EPA, he noted, found that a combination of chemical precipitation and biological treatment was the BAT for treating pollution from non-legacy FGD wastewater, and that dry handling was the BAT for non-legacy ash wastestreams. In its rule, the EPA attempted to account for the discrepancy between legacy and non-legacy wastewater rules by explaining that legacy wastewater "already exists in wet form." The EPA also said it had insufficient data to determine whether chemical or biological treatment would be effective on legacy wastewater. However, the court found that the EPA's decision to set surface impoundments for BAT for for legacy wastewater was arbitrary and capricious.

"Far from demonstrating that impoundments are the 'best available technology economically achievable' for treating legacy wastewater, the evidence recounted in the final rule shows that impoundments are demonstrably ineffective at doing so and demonstrably inferior to other available technologies," Duncan wrote.

The final rule, meanwhile, also sets impoundments as BAT for combustion residual leachate. The EPA justified its decision citing a lack of information from commenters for stricter BAT limitations, but as environmental petitioners noted, the EPA's had also said leachate forms a "very small portion" of collective industry discharges. "We agree with petitioners, however, that the leachate rule conflates the BAT and BPT standards in a way not permitted by the statutory scheme. The rule pegs BAT for leachate to the decades-old BPT standard, without offering any explanation for why that prior standard is now BAT," Duncan wrote.

A Victory for Environmentalists

The petitioning environmental groups, including Earthjustice, Sierra Club, and Waterkeeper Alliance, last week lauded the court's decision. "This is a major victory for clean water," said Thom Cmar, deputy managing attorney of the Earthjustice Coal Program. "The court made clear that EPA needs to strengthen the rule to protect communities living downstream of power plants, calling into question the legality of the Trump administration's plans to weaken these public health protections."

Plants had been expected to comply with the 2015 rule between 2018 and 2023, depending on when they need a new Clean Water Act permit. In April 2017, however, the Trump administration announced its intent to reconsider the 2015 rule, and in August, it announced rulemaking to potentially revise the BAT and pretreatment standards for existing sources (PSES) for bottom ash transport water and FGD wastewater. In September 2017, the EPA issued a final rule postponing compliance deadlines for the BAT effluent limitations and PSES for bottom ash transport water and FGD wastewater in the 2015 rule from November 1, 2018, to November 1, 2020. But in May 2018, the EPA issued an official timeline for rulemaking that suggests the rule could come by December 2019.

On Friday, the same environmental groups, joined by Clean Water Action, noted they have intervened before the Fifth Circuit to defend the rule's more stringent requirements against challenges brought by industry.

"Today's ruling could also impact a separate, ongoing lawsuit by the same environmental groups and several others against the EPA. Groups filed the lawsuit in 2017 when the Trump administration, in response to industry pressure, improperly postponed compliance with the federal regulation while it considered whether to weaken the rule," Earthjustice saidon April 12.

-Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine).

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