Fifth Circuit Finds No Easy Answer to Power Plant Pollution

(AP file photo/Martin Meissner)

NEW ORLEANS (CN) — A Fifth Circuit panel appeared flummoxed Wednesday over the EPA’s failure to regulate and strip pollutants from power plant wastewater in its latest guidelines.

Seven environmental groups filed motions for review of the EPA’s September 2015 effluent limitations standards. The motions were consolidated into one.

EPA set best-available technology limits for both legacy and leachate wastewater. Leachate is water that has trickled through a solid and leached out some of the solids. The environmental groups challenged the limits and the technology EPA said it planned to use to limit pollution.

“Leachate comprises 3 percent of the total volume of steam electric power plant discharges — just 3 percent — so from EPA’s perspective, that’s a small question,” Martin F. McDermott, senior trial attorney with the Environmental Defense Section of the Department of Justice told the three-judge panel.

Fifth Circuit Judge Catharina Haynes appeared skeptical.

“The overall concept here is reducing pollution, Haynes said, “eliminating it, ultimately, but at least reducing it for the time being. So why shouldn’t we be looking at the overall … everything that is going into a river … why isn’t that part of the analysis?

“When you say that something is only 3 percent — well, 3 percent of what?” Haynes continued. “Three percent of a dollar? That’s not very much. Three percent of a million dollars would sound like a lot to anybody. Right? So they [environmental groups] are saying the what is the problem — the 3 percent of what? — the what is so big that the 3 percent is big, and therefore you can’t just say, ‘Ahh,’ and forget about it,” Haynes said. “I’m not really understanding what’s wrong with their argument on that.”

McDermott replied: “EPA didn’t say forget about it. It said we’re going to treat this waste stream with surface impoundments. That’s the best available technology that they arrived on. So they did arrive at a treatment technology. It’s not good enough for the environmental petitioners, but they did arrive at that.”

The environmental petitioners would like to see chemical precipitation used instead.

Haynes asked if chemical precipitation was available, and economically possible.

McDermott said it is available.

“It is costly,” he continued, “but EPA didn’t do a cost benefit analysis here. Cost is one of the factors EPA took into account. I think probably the fairest way to look at it is, the EPA was looking at this rule holistically, and they were saying, ‘OK, let’s focus on the biggest bang for the buck, and we’ll go after that.’”

Haynes countered: “But you just said they didn’t look at the buck. So if we have technology that’s available, and we don’t really know the cost benefit, then how can we say we shouldn’t do it? ‘It’s possible to do, and I don’t really know what it costs, so I’m just not going to do it.’ I’m having trouble with that.”

McDermott said EPA standards are “not carved in stone,” that the EPA does reexamine its limits from time to time and that the rule will probably be revised, though he couldn’t say when.

“Forty years from now,” Haynes said.

McDermott called the process “exceedingly complicated.” The EPA did a thorough job, he said.

“They went to Italy. They went to hundreds of plants. They sent out questionnaires and received responses from 733 different factories. And they went to all these places and tried to examine … it’s an exceedingly difficult thing to do.”

“What is difficult?” Haynes asked. “We’ve already established that the technology is there. If the technology wasn’t there, I don’t know if we would be here. The technology is there. I’m just still a little bit struggling with why it wouldn’t be used because you haven’t established that it is just so cost-prohibitive that it would put the whole industry out of business or something like that.

McDermott said it’s a matter of discretion.

Fifth Circuit Judge James C. Ho asked McDermott for more explanation.

“As I read the text,” Ho said, “the statute says EPA has to do its best. EPA has to choose the gold standard. You can’t choose the bronze. The discretion you have is in determining what is gold and what is bronze.

“The problem I have is what I’m hearing from you is bronze is good enough,” Ho continued. “So is your point, Yes, you acknowledge that something else would be better, but you’re going to stay with this bronze?”

McDermott conceded that chemical precipitation would be better for chemical removal but that “EPA’s position is … that the [best available technology] analysis does not have to focus exclusively on what is the best pollutant removal technology.”

He added: “Best is an amorphous concept that is inherently laden with discretion.”

Ho replied: “I heard you conceding that this is bronze; you just have the discretion to choose bronze.”

Harry M. Johnson, on behalf of the Utility Water Act Group, an intervenor, said: “Theoretically, the record shows, there is a process called chemical precipitation that can work, that could work. However — this is where we might disagree — there is no plant anywhere that uses chemical precipitation to treat leachate.”

The Utility Water Act Group challenges air and water regulations, and represents most of the industry concerned with the regulations.

“But if the EPA never makes them do it, they never will,” Haynes said, laughing slightly. “So that’s kind of circular, isn’t it? ‘We don’t know if it works because we ain’t gonna use it.’”

Johnson replied: “Well, and there’s no requirement that when an agency attacks a problem, that it attacks all aspects of the problem at once. The case law is very clear that it can act incrementally. … Eventually, we will eliminate all discharges. But we can’t do that all at once.”

Haynes observed: “There’s a difference between 30 years and all at once.”

Johnson said the five waste streams not at issue in this case are very significant. “There are zero discharge limitations that will come into effect. … Over time, leachate is not going to be as much of a problem, because there’s less going to landfills.”

Johnson said the EPA notes that it did make “certain decisions on the final steam electric [effluent limitations guidelines] that have the effect of avoiding the imposition of significant incremental costs in exchange for de minimis incremental loadings reductions. For example, EPA ultimately chose not to establish more stringent [best available technology] limitations than exist under previously established [best available technology] regulations governing the discharge of pollutants in combustible leachate.”

That would have increased the cost by about $56 million annually while only “yielding an estimated 3 percent reduction” in pollution. “Frankly, we believe that’s wildly underestimated,” Johnson said, “but this is what EPA found.”

“It’s not de minimis,” Matthew Gerhart, counsel for Sierra Club, said during rebuttal. “It’s the largest industry in the county, so to call it de minimis is contrary to everything EPA’s done.

“To call impoundments a technology is really being charitable here. We’re really talking about a hole in the ground where waste water sits. This is not an advanced technology that the industry is capable of.”

Haynes asked: “What about this notion of incremental treatment?” That, you know, life is busy, and we’re just doing the best we can with what we’ve got, and they’ll get to it when they get to it. How does that play?”

Gerhart said the Clean Water Act limits at issue were set in 1972 and the goal was to eliminate water pollution by 1985.

“We’re in 2018. This is the first time EPA has set best available technology limits on toxic wastewater pollution from the largest industrial source in the country. It took them 33 years to get there, and they only got there because we sued them. So this notion that they’re going to get to this sometime soon …” Gerhart said.

“Like 3 percent of soon,” Haynes said. “Three percent of the history of the world.”

The panel did not indicate how or when they will rule on the matter.

Haynes is an appointee of President George W. Bush. Ho and Fifth Circuit Judge Kyle Duncan were appointed by President Trump.

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