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Dec. 6 — Revised effluent limits for power plants should mandate controls on bromide discharges, not make them optional, because they can cause harmful byproducts in downstream drinking water facilities, national water utility groups argued in a legal brief ( Sw. Elec. Power Co. v. EPA , 5th Cir., No. 15-60821, 12/5/16 ).
Bromide discharges from power plants cause carcinogenic disinfection byproducts to form in downstream water utilities, posing a public health risk and putting treatment facilities in violation of the Safe Drinking Water Act, the American Water Works Association and the National Association of Water Companies said in the brief.
They asked the U.S. Court of Appeals for the Fifth Circuit to remand the portion of the 2015 effluent limitations guidelines rule (RIN:2040-AF14) that allows power plants to participate in a voluntary incentives program with drinking water utilities to address bromide discharges.
Calling the provisions arbitrary and capricious, the groups said the Environmental Protection Agency should either require the “steam electric industry to meet discharge limits consistent with technologies that exist and are effective at removing bromide from the wastewater discharges at steamelectric power plants” or consider other binding alternatives.
The groups said the EPA was aware that a demonstrated technology exists for controlling bromide in the wastewater from such plants but chose not to select it or require its use.
The final effluent limits under the Clean Water Act required about 1,080 power plants to manage discharges of arsenic, selenium, nitrates, mercury, zinc and other pollutants from their use of air pollution controls at power plants to control emissions of oxides of sulfur and nitrogen as well as particulate matter.
In that rule, the EPA identified a suite of chemical and biological technologies that power plants were required to use to treat wastewater associated with flue gas desulfurization, fly ash, bottom ash, flue gas mercury control, combustion residual leachate from landfills and surface impoundments, nonchemical metal cleaning wastes and gasification of fuels such as coal and petroleum coke.
Unlike the drinking water groups, the environmental groups—Sierra Club, Environmental Integrity Project, and Waterkeeper Alliance—not only seek a remand, but also want vacated parts of the rule that they argued in their brief aren’t protective enough of public health.
Specifically, the environmental groups want the Fifth Circuit to vacate those provisions that require power plants to rely on effluent limits set in 1982 for legacy wastewater—wastewater generated prior to the rule’s compliance date—and coal combustion leachate found in a surface impoundment.
The groups termed the actions arbitrary and capricious, saying the prior best practicable limits for leachate restricted total suspended solids and grease but didn’t limit toxic pollutants such as arsenic, lead and mercury as well as nutrients. Likewise, they noted that prior effluent limits for legacy wastewater did not regulate nutrients and toxic metals.
They said EPA arbitrarily set best available technology limits for so-called legacy wastewater that are far more lenient than the limits that the EPA set for categories of wastewater that are generated at a power plant after the rule’s compliance date.
“EPA’s creation of separate, less stringent limits for wastewater based on the date that it was generated finds no support either in the Clean Water Act or the agency’s own rulemaking record,” the environmental groups said, noting that the Clean Water Act requires technology-based limits on discharges of pollutants regardless of when those pollutants were generated.
They said the EPA itself has acknowledged that surface impoundments are ineffective at removing metals and that more effective technologies are available. And yet, the rule allows for continued use of surface impoundments for leachate, despite EPA’s finding that leachate can be treated using the same technologies that the rule requires for scrubber wastewater, Earthjustice attorney Thomas Cmar told Bloomberg BNA in a Dec. 6 e-mail.
In contrast, the electric power industry sector—represented by the Utility Water Act Group, Southwestern Electric Power Co., Union Electric Co. represented by Ameren Missouri, Duke Energy Indiana and the Board of Public Utilities for the city of Springfield, Mo.—sought in their brief to have the entire rule remanded and vacated.
The industry representatives objected to the EPA’s decision to impose wastewater limits based on data that doesn’t represent the differences in coal burned at power plants. They also objected to the EPA’s compliance cost estimates for using chemical and biological treatment that they say is based on vendor data that the agency is unwilling to share, citing confidential business information. Most importantly, the industry groups said the EPA didn’t factor in the cost of implementing the Clean Power Plan, which would require limits on carbon dioxide emissions.
For instance, the power industry said the EPA used data from power plants that burn only bituminous, or high-sulfur containing coal, or a blend of bituminous and sub-bituminous coal to set scrubber wastewater discharge limits for selenium and nitrates for all plants irrespective of the type of coal they burn. They said the EPA ignored the 25 percent of the coal-fired power plants that use sub-bituminous and lignite coal.
“The Final Rule is not inconsequential,” the industry groups said. “It will force plant closures and have massive impacts on an industry that is vital to our nation’s infrastructure. Yet, to an unprecedented extent, the Agency has withheld fundamental information purporting to justify the rule.”
The two drinking water groups that are challenging the final power plant effluent limits are represented by John Sheehan, partner with Washington D.C.-based Clark Hill PLC.
The environmental groups are represented by Thomas Cmar and Mathew Gerhart, attorneys with the nonprofit legal firm Earthjustice, as well as Casey Roberts and Joshua Smith with Sierra Club.
Kristy Bulleit and Harry Johnson III, of Hunton & Williams LLP are representing the Utility Water Act Group, Southwestern Electric Power Co., and Union Electric, while Sean M. Sullivan of Troutman Sanders LLP is representing Duke Energy Indiana, and Thomas Grever, of Shook, Hardy & Bacon LLP representing the Board of Public Utilities.
To contact the reporter on this story: Amena H. Saiyid in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Larry Pearl at email@example.com
The drinking water utility petitioners brief filed in the U.S. Court of Appeals for the Fifth Circuit is available at http://src.bna.com/kxAThe industry petitioners brief filed in the U.S. Court of Appeals for the Fifth Circuit is available at https://src.bna.com/kxzThe environmental groups’ brief is available at https://src.bna.com/kyC
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
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