Regulatory Developments

Power Plant Discharge Rule Provisions Postponed by Two Years

In a positive response to an industry petition, the EPA has issued a final rule that will postpone by 2 years certain effluent limitations (ELs) and pretreatment standards for existing sources (PSESs) that the Agency promulgated in 2015 for the Steam Electric Power Generating Point Source Category.
power plant

The 2015 rule directed Clean Water Act permitting authorities to comply with the new ELs and PSESs “as soon as possible beginning November 1, 2018” for six wastestreams—flue gas desulfurization (FGD) wastewater, bottom ash transport water, fly ash transport water, flue gas mercury control wastewater, gasification wastewater, and combustion residual leachate. Under the new rule, that date will be extended to November 1, 2020, for two of the wastestreams—FGD wastewater and bottom ash transport water. However, the Agency also announced that it intends to undertake new rulemaking to potentially revise the ELs and PSESs in the 2015 rule that apply to these two wastestreams.

When proposing the postponement in June 2017, the EPA said it would consider postponing and amending the pollutant limits for all six wastestreams covered in the 2015 rule. However, in its current action, the Agency notes that commenters on the proposal argued that the Agency has no basis to change the compliance date for requirements that petitioners did not ask to be changed. The EPA agreed and left those deadlines and the provisions they apply to unchanged along with all other provisions in the rule.

Industry Disagreed with BAT

In the 2015 action, the EPA established the ELs and PSESs based on the best available technology economically achievable (BAT). According to the Agency, BAT was consistent with existing technologies as well as advanced wastewater treatment systems, all available in the marketplace and all found to be effective. For example, the EPA decided to base its limit for FGD wastewater on a biological treatment technology the Agency said, “has been tested at power plants for more than 10 years and demonstrated in full-scale systems for more than seven years.”

However, in March 2017, the Utility Water Act Group (UWAG) submitted a petition to EPA Administrator Scott Pruitt, stating that power plants are not able to meet the effluent limits with the technologies the EPA identified as BAT in the 2015 rule.

“Actual costs are, therefore, much higher than EPA predicted,” wrote the UWAG. “Either plants cannot comply at all or they are being forced to design, test, and try unproven technologies in addition to, or in lieu of, the model technologies in the hope of developing a compliance strategy. The Rule should be reconsidered so that its true costs can be accounted for, as required by the Clean Water Act.”

In an April 5, 2017, letter, the Small Business Administration Office of Advocacy also petitioned the EPA for reconsideration of the effluent limitations guidelines (ELGs).

One week later, Pruitt wrote to the petitioners that the EPA would reconsider the rule. Also, Pruitt announced that the Agency was requesting that the 5th Circuit stay pending litigation against the 2015 rule for 120 days “by which time the Agency intends to inform the Court of the portions of the rule, if any, that it seeks to have remanded to the Agency for further rulemaking.” The 5th Circuit did grant this request and placed the case in abeyance.

Postponement Hinders Technology

The Agency notes that it received “thousands” of comments on its proposal to postpone the compliance dates. Those opposing the postponement generally asserted that the technology bases underlying the 2015 rule are widely available and affordable now; that many steam electric plants have already installed or are in the process of implementing these technologies; that postponing the compliance dates would hinder technology development; that any postponement allows power plants to continue to discharge pollutants that are harmful to public health and the environment, and the forgone public health and environmental benefits during any postponement outweigh the costs to industry; and that the EPA lacks authority to postpone the compliance dates.

The Agency responded that the postponement was warranted based on the new data it had received, which it did not possess when writing the 2015 rule. And since the new data will lead to a revision of the ELs and PSESs, the Agency said it could not require the regulated sector to spend hundreds of millions of dollars to purchase and maintain technologies to meet the 2015 requirements when those technologies may not be needed once the requirements are revised. In the 2015 rule, the EPA estimated the total annualized pretax compliance costs for the FGD and bottom ash requirements to be $486.8 million.

A prepublication version of the final rule is here.