Environmental Groups Allow EPA to Postpone Power Plant Guidelines Proposal Until April

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Four environmental groups announced Dec. 11 that they have agreed to give the Environmental Protection Agency four months beyond its upcoming Dec. 14 deadline to propose effluent guidelines for coal-fired power plants (Defenders of Wildlife v. Jackson, D.D.C., No. 1:10-cv-01915, stipulated extension 12/10/12).

EPA, Defenders of Wildlife, Earthjustice, the Environmental Integrity Project, and the Sierra Club jointly filed Dec. 10 a notice of stipulated extension in the U.S. District Court for the District of Columbia in which they agreed to amend an existing consent decree to allow a final deadline of April 19, 2013, to propose effluent limits for the power plant industry. The consent decree requires written agreements from all parties but no court approval.

EPA also agreed to file with the court status reports on its rulemaking every 30 days and 90 days from the date of the filing of the stipulated extension. In that notice, EPA emphasized this will be the last extension it seeks before proposing these effluent guidelines but did not say why it needed more time.

But the environmental groups in their statement noted that “EPA was to have released the rules this week, but fell behind.” The groups added that they have allowed EPA to take a limited amount of time to complete the rulemaking process “but will allow no additional delay.”

Rule Would Affect More Than 650 Plants

The proposed rule would affect more than 650 power plants that the environmental groups say are responsible for “discharging nearly three million pounds of toxics into our waterways annually.”

The agency is under a March consent decree with the four environmental groups to revise 30-year-old power plant effluent guidelines. Under that agreement, EPA said it would propose a rule by July 23, 2012, and finalize it by Jan. 31, 2014.

Since April, however, EPA has sought and obtained two extensions with written agreements from the environmental groups on the rulemaking schedules. The most recent extension had given EPA until Dec. 14 to propose the effluent guidelines and to finalize them by May 22, 2014.

EPA has not revised the effluent guidelines for the power sector since 1982 even though Section 301 of the Clean Water Act requires the agency to set effluent guidelines for point sources, including power plants. Section 304 (m) of the law requires the agency to publish a final Effluent Guidelines Program Plan every even year. The program plan establishes a schedule for the annual review and revision of promulgated effluent guidelines.

“Coal-fired power plants are the biggest sources of toxic water pollution in the country, but EPA's stale, thirty-year old control rules do not set any limits controlling dangerous metals like mercury and lead being dumped into waterways from the plants,” the groups said.

Original Suit Filed in November 2010

The environmental groups had originally sued EPA the same day in November 2010 as they proposed the consent decree. The lawsuit charged EPA with failure to conduct and complete an annual review of effluent limitation guidelines and of failure to review effluent limitations at least once every five years for the steam electric power generating point source category (Defenders of Wildlife v. Jackson,D.D.C., No. 1:10-cv-1915, 11/08/10; 216 DER A-38, 11/10/10).

The Utility Water Act Group, which represents energy companies and three national energy trade associations, sought a motion to intervene soon after the proposed consent decree was filed, but the U.S. District Court for the District of Columbia ruled in March of this year that the group did not have standing to intervene.

At that time, the court also finalized the consent decree between EPA and the environmental groups, laying out a schedule for proposing and finalizing effluent guidelines for the power plants.

After that decision, the group appealed to the U.S. Court of Appeals for the D.C. Circuit in April. In its appeal, UWAG claimed EPA gave up its discretionary power to review and revise the effluent guidelines, as required under Sections 301 and 304 of the Clean Water Act, by agreeing to a consent decree that compels the agency to follow a timeline.

On Dec. 5, the Justice Department argued before the D.C. Circuit that the consent decree did not force EPA to review and revise effluent guidelines, saying it merely laid out a timeline for the agency to review and determine whether to make potential revisions to effluent guidelines under the Clean Water Act (234 DER A-32, 12/6/12).

By Amena H. Saiyid  

The joint notice of stipulated extension filed by environmental groups in Defenders of Wildlife v. Jackson is available at http://op.bna.com/env.nsf/r?Open=phey-92vt82.

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