By John Watson, Spencer Fane LLP
The U.S. Environmental Protection Agency (EPA) is proposing to strengthen the wastewater discharge standards that apply to coal-fired power plants. The agency’s proposal addresses discharges of toxic metals and other pollutants into water bodies. The EPA will conduct public hearings on the proposed rule on April 20 and 25, 2023.
Three wastewaters and related toxics targeted
The proposed rule amends the rules adopted in 2020 and establishes more stringent discharge standards for three wastewaters:
- Flue gas desulfurization wastewater;
- Bottom ash transport water; and
- Combustion residual leachate.
The proposal would also establish a new set of definitions for various legacy wastewaters, which may be present in surface impoundments prior to more stringent limitations in a discharge permit going into effect.
The toxics and bioaccumulative pollutants that are the target of the rule include selenium, mercury, arsenic, and nickel, halogen compounds such as bromide, chloride, and iodide, nutrients, and total dissolved solids.
The EPA’s Fact Sheet outlines the history of the “technology-based” effluent guidelines for the Steam Electric Power Generating category that apply to power plants that generate electricity through the creation of steam. The proposed rule focuses on a subset of steam electric plants that burn coal to create steam and amends the EPA’s earlier updates to the effluent limit guidelines for this category that were promulgated in 2015 and in 2020.
Less stringent BAT requirements eliminated
For existing sources that discharge directly to surface water, with the exception of certain identified subcategories, the proposed rule establishes effluent limitations based on Best Available Technology Economically Achievable (BAT). However, the proposed rule would eliminate the separate, less stringent BAT requirements for two subcategories: high flow facilities and low utilization electric generating units (LUEGUs).
Implementation flexibilities
The proposed rule includes implementation flexibilities that acknowledge, for example, that some plants have installed, or are in the process of installing, additional treatment technologies to meet the 2015 and 2020 regulations. The rule would allow additional time for these plants to come into compliance with the revised rule. In addition, recognizing that some coal-fired power plants are in the process of closing or switching to less polluting fuels such as natural gas, the rule includes flexibilities to allow these plants to continue to meet the 2015 and 2020 regulation requirements rather than the new rule.
Direct final rule
The EPA is simultaneously publishing a direct final regulation to extend the deadline for plants to opt-in to the 2028 early retirement subcategory promulgated in the 2020 regulation. The opt-in period had expired in 2022, but the EPA acknowledges that additional plants would choose to opt-in to this subcategory if additional time to do so were granted. The direct final regulation would extend the period to opt-in to this subcategory.
The coal combustion residuals (CCR) rule: Coal ash
Coal ash is generated from burning coal and the operation of gas desulfurization equipment at coal-fired electric generating plants. The U.S Geological Survey estimates that about 100 million metric tons of coal ash are generated annually by U.S. coal-burning electric utilities.
The proposed wastewater effluent rules identified above complement the EPA’s Coal Combustion Residuals (CCR) rule promulgated in 2015, according to the July 2, 2015, federal register.
Both the effluent limitation regulations and the CCR rule focus on wastewater from the discharge of coal ash into impoundments designed to isolate coal ash and its constituents from the environment. Engineering requirements for the design, construction, and operation of the coal ash impoundments are established in the CCR rule. For example, among other things, the CCR rule required owners of coal-fired generating plants with unlined impoundments to stop receiving waste, altogether, and to either retrofit or close the impoundments by April 11, 2021. The CCR rule also authorized extensions of the deadline until October 15, 2023, if the intent was to retrofit the unlined impoundments.
Numeric limitations for any effluent that is discharged from the impoundments, then, are set by the new wastewater rule. Acknowledging the need for flexibility, if the operators notified the EPA of a permanent retirement of the coal-fired plant, the operators could continue to use impoundments sized 40 acres or smaller until October 17, 2023. Operators with impoundments larger than 40 acres could continue using the impoundments until October 17, 2028; again, however, only if there was to be a permanent retirement of the plant.
In combination, the rules establish a comprehensive set of “cradle to grave” requirements for the isolation of coal ash and its contaminants from the environment.
Civil fines, criminal penalties and lawsuits
Violating either the Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category, or the CCR rule can result in civil and criminal penalties.
Civil penalties for violating either set of rules can include fines of up to $56,460 per day per violation. The EPA may also issue an administrative order requiring the facility to take corrective action to address the violation. In addition, the EPA may seek injunctive relief to prevent ongoing violations.
Criminal penalties can be severe. Knowing or willful violations of the Clean Water Act, which includes the EPA’s effluent limitations regulations, can result in fines of up to $50,000 per day per violation and up to three years in prison, or both. In cases where the violation results in serious harm to human health or the environment, the fines can be even higher.
The CCR Rule establishes technical requirements for CCR landfills and surface impoundments pursuant to the authority in subtitle D of the Resource Conservation and Recovery Act (RCRA), the federal regulatory program governing the recycling and disposal of solid waste. Thus, the CCR rule includes criminal penalties for intentional or knowing violations of the rule. Criminal penalties may include fines of up to $50,000 per day per violation, imprisonment for up to two years, or both. As with all of the federal environmental regulatory programs, the severity of the penalty depends on the extent and severity of the violation, as well as the intent of the violator.
It’s worth noting that state regulatory agencies may also have the authority to enforce the effluent limitations rule and CCR rule within their jurisdictions, and they may impose additional penalties or fines for non-compliance. In addition, companies that violate the rules may also face civil lawsuits from affected individuals or communities seeking damages for harm caused by any violation.
And beyond
Violations of either the wastewater effluent limitations rule or the CCR rule can result in several risks beyond government agency fines and penalties, including:
- The most obvious: Environmental Contamination: Improper disposal or management of coal ash can result in environmental contamination of soil, water, and air. Coal ash contains several toxic heavy metals, including lead, arsenic, and mercury, which can leach into groundwater and surface water if not properly contained;
- Health Risks: Exposure to coal ash can cause several health risks, including respiratory problems, neurological damage, and cancer. Workers who handle coal ash directly are particularly vulnerable to these health risks;
- Reputational Damage: Companies that violate the rules may face significant reputational damage, especially if the violations result in environmental contamination or health risks for local communities. This can lead to public backlash and a loss of trust from stakeholders and investors.
About the Author: John Leonard Watson leverages his in-depth commercial trial and litigation knowledge to understand clients’ needs and goals and serves as a formidable advocate on their behalf. He is also a regular thought leader on natural resources law, occupational health and safety regulation, as well as every level of air, water, hazardous waste, and Superfund regulatory programs. He can be reached at jwatson@spencerfane.com and 303.592.8339.
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