The Environmental Protection Agency (EPA) is behind on its proposed revisions to the Obama administration’s effluent limitations guidelines (ELGs) for steam electric power plants.
In an e-mail to POWER on July 9, the EPA confirmed that the agency was still “working expeditiously” to complete the proposed rule, and it has yet to submit it to the Office of Management and Budget (OMB) for interagency review. In its May-released 2019 spring agenda of regulatory and deregulatory actions, the agency projected the proposed rule would be published by June 2019, and a final rule, by August 2020.
The existing ELG rule, which the Obama administration finalized in November 2015, 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. Specifically, the 2015 rule set limitations and standards on various waste streams at steam electric plants, including on fly ash transport water, bottom ash transport water, flue gas mercury control wastewater, flue gas desulfurization (FGD) wastewater, gasification wastewater, and combustion residual leachate. Power plants had been expected to comply with 2015 ELG rule between 2018 and 2023, depending on when they needed a new Clean Water Act permit.
In April 2017, however, the Trump administration announced its intent to reconsider the 2015 rule, and in August 2017 it announced rulemaking to potentially revise the best available technology (BAT) economically achievable effluent limitations and pretreatment standards for existing sources (PSES) for bottom ash transport water and FGD wastewater. Then, 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 Nov. 1, 2018, to Nov. 1, 2020.
The EPA had then estimated it would take about three years to propose and finalize revised ELGs and standards, suggesting it could issue a new final rule in the fall of 2020. But in May 2018, the EPA issued an official timeline for rulemaking, suggesting it would propose revisions to the 2015 rule by December 2019.
This April, meanwhile, the U.S. Court of Appeals for the Fifth Circuit threw out rules pertaining to legacy wastewater and combustion residual leachate streams, and remanded them to the agency for reconsideration, adding new uncertainty to the timing of the revised ELG rule.
In its most recent status update to the federal court on June 19, the EPA said it continues to work toward publication of the proposed rule regarding ELGs applicable to discharges of bottom ash transport water and FGD wastewater. The agency said it would file its next status report by Sept. 17, 2019. It also urged the court to continue a stay on judicial proceedings related to the consolidated petitions in that case concerning the “new, more stringent BAT limitations and PSES” that apply to bottom ash transport water, FGD wastewater, and gasification wastewater.
How the EPA moves to revise the ELG rule is of significant interest to industry, which notes the rule is intertwined with a planned overhaul of the Obama administration’s 2015 federal coal ash rule. The EPA last year promulgated a two-part rule revising the national minimum criteria contained in the 2015 rule governing coal combustion residual disposal to better align it to potential revisions to the ELG rule.
According to the OMB’s May-released regulatory agenda, the EPA is scheduled to issue several proposals by the end of July 2019 that could affect state and power plant decisions about the future of their coal ash management.
Observers note that the agency’s reconsideration of both rules, as well as pending legal challenges to both rules, pose substantial uncertainty to industry. That uncertainty affects projected capital expenditures for ELG compliance, as well as the timing of those expenditures. Both would have material impacts on operations, liquidity, and financial condition, they note.
—Sonal Patel is a POWER associate editor (@sonalcpatel, @POWERmagazine)