By: Hina Gupta, Managing Editor

Congress passed the Clean Water Act (“CWA”)[1] with a goal of eliminating the discharge of pollutants into navigable waters by 1985.[2] The Environmental Protection Agency (“EPA”) strives to accomplish this goal by establishing a level of technology available for distinct industrial point source category as “effluent limitation guidelines” (ELG) that will restrict the effluent discharge from the point sources at a certain level.[3] The CWA also establishes review and revision requirements for effluent limitations and ELGs—”[a]ny effluent limitation . . . shall be reviewed at least every five years and, if appropriate, revised.”[4] The EPA has issued ELGs for several major industrial categories and subcategories identified in the CWA.[5]

Steam electric power plants contribute fifty to sixty percent of the toxic pollutants discharged to waters of the United States by all industrial categories currently regulated under the CWA.[6] These power plant discharges include coal ash and sludge from a control technology called “scrubbers” that include metals (e.g., mercury, arsenic, selenium), nitrogen, and total dissolved solids.[7] The heavy metals are dangerous to humans and “wreak havoc in our watersheds even in very small amounts.”[8] These power plant discharges are expected to increase as the pollutants are increasingly captured by air pollution controls and transferred to wastewater discharges.[9] The current ELGs for the steam electric power plants were last updated in 1982, and even the EPA recognizes that they “do not adequately address the toxic pollutants discharged from the electric power industry, nor have they kept pace with process changes that have occurred over the last three decades.”[10]In June 2013, the EPA issued a proposed rule that would strengthen the control of certain steam electric power plant discharges by revising technology-based ELGs for this industrial category.[11]

Proposed Rule and its Development

The Proposed Rule establishes new or additional requirements for wastewater streams from the following processes and byproducts associated with steam electric power generation: flue gas desulfurization, fly ash, bottom ash, flue gas mercury control, and gasification of fuels such as coal and petroleum coke.[12] The EPA has identified four preferred alternatives under the “best available technology” for regulation of the existing discharges by the steam electric power plants.[13]

Originally, the EPA had two “preferred” options: Options 3 and 4.[14] Option 3 combined biological and chemical treatments to treat scrubber sludge and dry-handling eliminate fly ash.[15] Meanwhile, bottom ash and leachate from ash landfills could still be handled in ponds.[16] Option 4, the “more environmentally protective” option, had all the treatment options of Option 3 and would also require dry handling for bottom ash and chemical treatment for leachate.[17] Then the proposed rule went through the Office of Management and Budget’s (OBM) review process, and the OMB review produced a very different Rule.[18]

Due to the the lobbying of the influential power sector, the proposal was dramatically weakened.[19] The OMB would not let the EPA select Option 4, the more environmentally protective option out of the two options proposed, and instead the rule had new, weaker, options as “preferred.”[20] The OMB added Options 3a and 3b.[21] Option 3a had no limits for the scrubber sludge discharges that the EPA had, [22] while Option 3b had sludge controls only for plants using scrubbers on more than 2,000 Megawatts (MW) of capacity (few plants are in this category).[23] While the original Option 3 of the EPA would eliminate 1.623 billion pounds of pollution annually, the OMB’s Option 3a would control just about 460 million pounds of pollution annually, and Option 3b would control 914 million pounds.[24] In response to this interference, the EPA proposed a modified Option 4 by creating a new Option “4a.” As the original Option 4, Option 4a required bottom ash and leachate treatment, but exempted plants smaller than 400 MW from the bottom ash treatment requirement.[25] Due to this exemption, Option 4a would control only 2.6 billion pounds of pollution annually compared to 3.3 billion pounds through Option 4.[26] Thus, all of these “preferred alternatives” in the June 2013 Proposed Rule are weaker than the original Option 4 and shift away from the stringent controls that the EPA has recognized to be available and protective.[27]

As discussed above, the EPA has not updated the ELGs for the steam generation electricity facilities since 1982, the existing ELGs do not adequately address the toxic pollutants in the wastestream, nor are the ELGs in accordance with the current technological advancements.[28] Thus, by finalizing a lesser option, the EPA will miss an opportunity to clean American waters and fail to control billions of pounds of pollution for decades to come.[29]