EPA announced yesterday its intent to revise some portions of the 2020 Steam Electric Effluent Limitation Guideline Reconsideration Rule (2020 ELG Rule). EPA’s press release and the pre-publication version of its Federal Register notice sent a clear message that the agency is aiming at membrane technology to control flue gas desulfurization (FGD) wastewater discharges from coal-fired power plants. The notice also states that the agency will reconsider the technology selected for bottom ash transport, and it may revise or eliminate the subcategories created by the 2020 ELG Rule for high-flow facilities, low-utilization facilities, and for facilities that commit to retire or repower coal-fired units by 2028.
EPA’s announcement strongly implies that membranes are currently being used by this sector to control discharges of FGD wastewater, but that is not accurate and raises questions about EPA’s commitment to compliance with the Information Quality Act. During the 2020 ELG rulemaking process, EPA specifically rejected membranes as the “best available technology economically achievable” for FGD wastewater because not a single facility in the United States had adopted the technology for anything beyond small-scale pilots. As of October 2020, there was some information in the rulemaking record to suggest that coal-fired facilities in China may have installed membranes to treat FGD wastewater, but there was no actual data on the short- or long-term performance of these particular systems.
For FGD wastewater, the 2020 ELG Rule ultimately established generally applicable discharge limits that are based on biological treatment. However, to promote further innovation in the sector, the 2020 ELG Rule offered a “voluntary incentives program” (VIP) that would allow a facility more time to meet more stringent FGD discharge limits based on membrane technology.
With the 2020 ELG Rule remaining in place, facilities have until October 13, 2021 to notify EPA and their regulator whether they will comply with the generally applicable limits, the VIP limits, or whether they will enroll in one of the subcategories. The strong membrane messaging in EPA’s announcement suggests the agency has predetermined the outcome of its future rulemaking, potentially already raising Administrative Procedure Act concerns, at least with respect to FGD wastewater. It may also, perhaps quite intentionally, create a self-fulfilling prophecy: Facility owners and operators reading between the lines may conclude that selecting VIP now is the only way to avoid paying for two major technology upgrades and complex permitting revisions over the next five to 10 years; and every facility that opts into the VIP under the 2020 ELG Rule will be used by EPA to support its decision to select membranes as the “best available technology economically achievable” in the next rewrite. This will be true regardless of whether a single facility in the U.S. has actually installed the technology to treat FGD wastewater at the time EPA concludes its rulemaking.
EPA’s announcement is notably silent on whether the upcoming rulemaking will include new effluent limits to replace limits for leachate and legacy waste streams that were vacated more than two years ago by the Fifth Circuit Court of Appeals. As time continues to pass with no action on those waste streams, the agency is sure to come under greater pressure to act in response to the Fifth Circuit decision, potentially resulting in an overburdened rule writing staff already working on PFAS ELGs, ongoing studies for other regulated sectors, and the nearly continuous ELG plan revision process. These conflicting priorities will create staffing and resource management challenges for the Office of Water, resulting in somewhat uncertain future predictions regarding scheduling and deadline management.
Troutman Pepper is extremely well positioned to assist the regulated community with all aspects of this ongoing rulemaking saga, whether it is engagement in the rulemaking process; developing, analyzing, or implementing permitting strategies in response to the changing regulatory landscape; or litigating to protect sector or individual facility interests. Our attorneys have worked all aspects of the steam electric ELGs, from advising on individual permitting strategies to directly managing EPA’s rulemaking process for 2020 ELG Rule. Please contact Anna Wildeman, Dave Ross, Fitzgerald Veira, Brooks Smith, and Houston Shaner for more information.