The Environmental Protection Agency (EPA) is set to establish more stringent standards on water pollution from coal-fired power plants. The EPA on July 26 announced it would reinstate Obama-era regulations that were rolled back by the Trump administration.

An EPA official on Monday said the new rule would impact about 100 coal-fired plants. The agency said it would begin the rule-making process to reduce pollution, including toxic metals such as mercury, arsenic and selenium, though changes could take a few years to go into effect—meaning the current standards, which include dozens of environmental regulations that were weakened by the Trump EPA—will remain in place.  

Monday’s action in particular addresses a rule finalized on Aug. 31 of last year, when the EPA moved to limit the number of power generation facilities that could incur costs for failing to comply with limits on pollution. Last year’s action revised a 2015 rule, when for the first time the EPA issued an order that set federal limits on the levels of toxic metals in wastewater that could be discharged from power plants.

The EPA on Monday said it intends to issue a proposed rule for public comment in the fall of 2022, with an eye toward finalizing the rule by late 2023 or early 2024.

Mercury, Arsenic, Selenium

EPA Administrator Michael Regan in a statement Monday said the agency would “quickly move to strengthen water quality protections and further reduce power plant pollution that can contain toxic metals such as mercury, arsenic, and selenium. EPA is committed to science-based policy decisions to protect our natural resources and public health.”

President Biden during his first week in office in January directed all federal agencies to review rules issued in the past four years under the Trump administration. He specifically asked agencies to assess whether those rules are consistent with the new administration’s policy to “listen to science, improve public health and protect the environment, [ensure] access to clean air and water, [limit] exposure to dangerous chemicals and pesticides, [hold] polluters accountable” and reduce greenhouse gases while bolstering climate change resilience.

Joel Johnston, an attorney at national law firm Hall Estill who specializes in environmental and regulatory issues and large infrastructure projects, in an email to POWER said, “The announcement these rules will be revised isn’t surprising. The Biden administration was clear upfront that it had a focus on climate change and environmental justice. It is hard to predict whether the revised wastewater rules will go farther than the prior Obama-era rules did to curb the discharge of coal plant wastes, or not, but with the current Trump-era rules left in place for now, it is business as usual on the discharge side.”

Johnston said “it is certain” that any new rules will lower the “allowable limits of contaminants in discharged wastewater … with an almost certain focus on those compounds most closely associated with coal power generation. I would also anticipate substantially strengthened compliance reporting obligations. In terms of the extent and types of plant infrastructure upgrades and capital projects that will be required to meet the future new rules, it’s largely unknown until there is some certainty as to what the rules will ultimately be changed to, so that does create a great deal of business and regulatory uncertainty. There will be a lot more to say when the draft rules come out in fall 2022, though industry and environmental stakeholders will certainly be working tirelessly in the interim to get their respective positions heard.”

Review of 2020 Rule

The EPA in a news release Monday said the agency “undertook a science-based review of the 2020 Steam Electric Reconsideration Rule under Executive Order (E.O.) 13990, finding that there are opportunities to strengthen certain wastewater pollution discharge limits. For example, treatment systems using membranes continue to rapidly advance as an effective option for treating a wide variety of industrial pollution, including from steam electric power plants. EPA expects this technology to continue advancing and the agency will evaluate its availability as part of the new rule-making.”

Radhika Fox, the lead water official at the EPA, told the Washington Post, “What we found is that the Trump administration’s 2020 rule really is lacking. We think that we can do better when it comes to reducing water pollution from coal power plants.”

Several utilities that operate coal-fired power plants earlier this year called for regulators to lock in permits under last year’s less-stringent pollution standards, in part to provide more certainty to wastewater rules and limit the need to make expensive environmental upgrades to power plants. Environmentalists, meanwhile, have been asking for swifter changes from the Biden administration to revise rules enacted by Trump’s EPA.

Wary of Court Action

The EPA on Monday, in addressing the timeline for toughening the pollution rules, said it did not want a court to order a revision back to even-earlier rules, perhaps as far back as 1982.

“The current requirements provide significant environmental protections relative to a 1982 rule that would otherwise be in effect,” the EPA wrote in its news release. “The 2015 and 2020 rules are leading to better control of water pollution from power plants while reducing the cost of controls such as biological treatment systems and membrane treatment systems. The agency’s approach will secure progress made by the 2015 and 2020 rules while the agency undertakes a new rule-making to consider more stringent requirements.”

Environmentalists, though, decried the fact that toxic wastewater can continue to flow into waterways near coal-fired plants for even a few more years.

“If their timeline is 2024, that’s four years of damage,” Brett Hartl, government affairs director at the Center for Biological Diversity, told the Washington Post. “he industry is getting the better end of the deal out of this.”   

Hartl told CNN: “Oftentimes in these rules, the agencies often have a compliance phase in period. It may not be implemented by 2025 or 2026. We’re stuck in a world where really important protections for people are being slow-walked and that’s just not sufficient.”

Katie Sweeney, executive vice president at the National Mining Association, which represents coal-mining companies, in a statement that while her group is “disappointed that the new administration has decided to reconsider the 2020 rule … we look forward to engaging with EPA” in helping shape new regulations. Power companies would like a role in determining new rules as well.

Quin Shea, vice president for environment, natural resources, and occupational safety at the Edison Electric Institute (EEI), which represents investor-owned electric utilities, in a statement said EEI “looks forward to working with the U.S. Environmental Protection Agency on ways to continue the industry’s clean-energy transformation as the agency works to implement the existing technical requirements.”

Darrell Proctor is a senior associate editor for POWER (@POWERmagazine).