In keeping with the priorities of the Trump administration, EPA issued long-awaited proposed changes to the 2015 Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category (2015 ELG). 80 Fed. Reg. 67838 (Nov. 5, 2015). The embattled 2015 ELG rule has been mired in litigation since it was issued. 

Proposed Changes: Treatment Options for Flue-Gas Desulfurization Wastewater and Bottom-Ash Transport Water

The 2019 proposed changes offer financial relief and operational flexibility to fossil-fuel-powered electric generating plants. But EPA is only changing requirements for two of eight types of wastewater streams regulated by the 2015 ELG rule: flue-gas desulfurization (FGD) wastewater and bottom-ash (BA) transport water. 

Deadline Extension

The compliance deadline for FGD technology-based wastewater limits is extended from the original deadline of no later than December 31, 2023, to no later than December 31, 2025. For BA transport water, the compliance date remains December 31, 2023, at the latest.

FGD Effluent Limits and Technology Options

EPA has proposed additional technological treatment options for FGD wastewater and created new subcategories of facilities with different effluent standards and/or more flexible technological options. There are three sets of effluent standards. 

• The most stringent Best-Available Technology Economically Achievable (BAT) effluent standards for FGD wastewater are on par with the 2015 ELG standards, except for selenium, which is less stringent.
• Certain types of facilities – such as facilities with high FGD flow or low utilization boilers – are subject to less stringent effluent limits.
• Finally, EPA retained the voluntary incentive program (VIP) for FGD direct discharges but offered facilities more time to comply. The deadline is now December 31, 2028. The stringency of the standards under the proposed 2019 VIP varies compared to the 2015 ELG standards, depending on the constituent. The 2019 VIP sets requirements for more constituents, including bromide and nitrate/nitrite as nitrogen.

BA Transport Water Discharges

For BA transport water, EPA removed the strict no-discharge requirement of the 2015 ELG and proposed a not-to-exceed ten-percent volumetric purge, allowing discharge of a portion of a facility’s BA transport water. EPA also carved out low utilization boilers, allowing such facilities to discharge to surface impoundments but requiring the implementation of a Clean Water Act § 304(e) best management plan to reduce pollutant discharges. EPA also proposed to change the definition of BA transport water to exclude water remaining in a tank-based high recycle rate system at the end of the useful life of the facility.

Exempt Facilities and New Sources

Facilities that are retiring by 2028 are allowed to continue discharges of FGD wastewater and BA transport water to surface impoundments.

There were no changes from the 2015 ELG for new sources. 

Effects of the Proposed Changes

The creation of subcategories and more flexible treatment options is intended to provide cost-savings for utilities and their customers. The proposed changes may also limit investment in facilities already slated for closure. For facilities anticipated to continue operating beyond 2030, the voluntary program for direct dischargers could ease rate pressure while improving environmental protections. 

As facilities subject to the Coal Combustion Residuals Rule, 44 C.F.R. Part 257, (CCR) close units and modify or eliminate wastewater streams, the extended compliance deadline and increased flexibility may help facilities coordinate compliance implementation in a manner that increases efficiency and reduces costs. The CCR rule regulates the operation and closure of coal ash landfills and surface impoundments. The ELG rules impact the coal-laden water that is sent to CCR surface impoundments. 

However, the proposed amendments to the 2015 ELG, once finalized, are likely to be challenged by environmental groups that are alert to regulatory rollbacks. 

Opportunities for Public Comment

EPA is seeking comment on a number of issues presented by the proposed changes, such as the relationship to CCR rule compliance, information, data, and assumptions EPA relied on, and the proposed technologies, effluent limits, and alternate approaches set forth in the proposal. Facilities subject to the rule will be well-served by understanding the full scope of the proposed changes in order to coordinate compliance efforts with regulatory changes to the electric power sector and their portfolio resource planning. 

EPA will set dates for the public comment period once the proposed amendments have been published in the Federal Register. EPA is planning to hold a hearing on the proposed rule on December 19, 2019. 

Beveridge & Diamond's Electric Power practice group advises and represents electric utilities and power producers on facility operations and compliance, air, water and waste permitting, enforcement matters, and litigation. The firm’s lawyers develop creative, strategically-tailored solutions to challenges that arise in the electric power industry. For more information, please contact the authors.