Fifth Circuit Hears Debate Over Coal Plant Wastewater Rules

NEW ORLEANS (CN) – The Fifth Circuit heard environmentalists’ claims Wednesday that the U.S. Environmental Protection Agency’s postponement of standards in wastewater treatment from coal-fired power plants is beyond the agency’s discretion.

The hearing came two weeks after the court issued an opinion in a separate case finding that the agency's guidelines for the treatment of the coal-fired plant wastewater using outdated technology is “arbitrary” and in violation of the Clean Water Act. 

Petitioners are Clean Water Action, Environmental Integrity Project, Sierra Club, Waterkeeper Alliance Inc., PennEnvironment Inc., Chesapeake Climate Action Network, Physicians for Social Responsibility and Prairie Rivers Network.

Federal attorneys Wednesday defended EPA’s postponement of regulations for effluent and pretreatment standards governing the discharge of pollutants in water. The action will help power plants continue to deliver electricity as their facilities are updated to meet the newer standards, they said.

Harry Johnson, an attorney for intervenor Utility Water Act Group, a lobbying group that represents 163 energy companies and three national trade associations of energy companies, told the court that postponing the rule is essential to the vitality of the energy industry.

The newer standards that are now being postponed, known as the effluent limitation guidelines, or ELG, were put in place in 2015 under the Obama administration and set stringent wastewater standards for two types of toxic wastewater from coal-fired power plants.

The rule established new, tougher regulations on wastewater which were to go into effect between Nov. 1, 2018, and no later than Dec. 31, 2023. Other wastewaters were subject to separate “legacy wastewater” limitations in phases.

The EPA’s postponement of the rule followed a March 2017 petition from the U.S. Small Business Administration and the Utility Water Act Group in which the groups argued the new standards are “inconsistent with the President’s regulatory reform agenda” and would have a negative impact on jobs due to excessive costs of compliance.

But Matthew Gerhart, an attorney for the environmentalists, argued before the court that the EPA's postponement of standards was “unprecedented” and the agency did not have the authority to halt the regulation.

Gerhart said toxic wastewater discharges from power plants are the largest industrial source of toxic water pollution in the country.

The EPA, he said, postponed compliance with 2015 limits on two waste streams, bottom ash, and scrubber wastewater, solely because of the agency's intent to reconsider the limits in the future.

“But no statute authorizes EPA to postpone compliance with the final effluent limit solely because EPA might change those limits in the future,” Gerhart said.

He asked the court to reject the agency's invitation to expand its power beyond what Congress had written into statute.

U.S. Circuit Judge Edith Jones, a Ronald Reagan appointee, seemed to disagree with Gerhart’s claim that the EPA doesn’t have the authority to revoke a rule and repeatedly called its action to pause the regulation “rational.”

Gerhart argued there is a “distinction between pausing compliance with the rule and revising it” and said the agency “absolutely has the power to revise a rule,” but did not revise this rule and said simply that in the future it might revise it. EPA “expressly declined” to make use of any of the new evidence in the record, Gerhart said.

Jones said that from 1982 through today, effluent limits remained the same and questioned how the petitioners could prove there is an injury if the public has been exposed to toxic pollution for that long.

Only some of the population has been subjected to toxic pollution, Gerhart replied, and the petitioners’ members would have benefited in a reduction in water pollution.

Jones said the EPA’s action was rational because companies in the industry have been put in a position by this rule where they have to pay tens of millions of dollars which ratepayers then have to pay, “and EPA is put in a position where it could not possibly revise the rule.”

Tsuki Hoshijima, an attorney for the EPA, said regulated industries are having to take costly measures to comply with regulations they think might change in the face of this regulation. To address that problem, he said, the agency issued a partial revision – “a permissible” enterprise of its authority under the Clean Water Act.

Hoshijima said petitioners are relying on the Clean Air Act to find the limit to the EPA’s authority, but that act is different. He said the agency plans to reconsider compliance dates by the fall of 2020.

The agency is required to reconsider effluent limitations every five years, Hoshijima said.

Jones asked why it took until 2005 to review the limitations.

Hoshijima said a lot of fact-finding had to take place.

He said it would take a long time to revise limits going forward and that the EPA plans in the interim to revise effluent limits.

The rationale of the 2015 rule was to help power plants upgrade without having to shut down to disrupt power, Hoshijimia said.

Johnson, on behalf of the Utility Water Act Group, said the technology available when the rule was made in 2015 did not work.

He said companies would have had to pay hundreds of millions of dollars to install technology that did not work.

What was done was a two-step regulation, Johnson said.

“We would submit it would have been irrational for EPA to have done anything else,” he explained.

He said the rule has not been stayed.

“It remains in effect," Johnson said.

U.S. Circuit Judge Gregg Costa, a Barack Obama appointee, replied: “But the real uncertainty is what’s going to happen in 2020.” He questioned how important this particular rule will be.

Judge Jones asked why the EPA wouldn’t be entitled to tell the industry they don’t have to comply with limits while limits are reviewed.

During rebuttal, Gerhart again called the EPA’s postponement rule “unprecedented” in its sweeping disregard of the terms of the Clean Water Act.

“The statute is crystal clear,” Gerhart said.

Senior U.S. Circuit Judge Patrick E. Higginbotham, a Ronald Reagan appointee, also appeared on the panel.

The judges did not indicate how or when they will rule.

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