Court issues stay on litigation over power plant discharge rule

A U.S. appeals court this week agreed to put a hold on litigation over a federal regulation on wastewater discharges from coal-fired plants. In an April 24 order, the U.S. Court of Appeals for the Fifth Circuit said it would delay the litigation for 120 days, until Aug. 12, 2017.

Earlier this month, the Environmental Protection Agency agreed to reconsider its final rule, issued under the Clean Water Act, on wastewater discharges from steam electric power plants. The rule, "Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category," was finalized in late 2015.

The EPA agreed to reconsider the rule after it received two petitions seeking reconsideration and an administrative stay of the final rule's provisions. One petition was filed by the Small Business Administration's Office of Advocacy, while the other was filed by the Utility Water Act Group. The American Public Power Association is a member of the Utility Water Act Group.

Both petitions raised concerns that the 2015 rule on effluent limitation guidelines, or ELG, imposed unreasonable costs and lacked scientific support.

The litigation that was put on hold on April 24 is Southwestern Electric Power Co., et al., v. EPA. The court case number is No. 15-60821.

The court also approved the EPA's motion to submit, after the stay, an additional motion governing further proceedings. Through such a motion, the EPA will inform the court as to whether it wishes to seek a remand of any provisions of the ELG rule.

In a Federal Register notice that was published on April 25, the EPA said it would stay the rule's deadlines and would delay the rule's compliance dates, pending judicial review. The stay is effective immediately, upon publication in the Federal Register.

"In light of the capital expenditures that facilities incurring costs under the rule will need to undertake in order to meet the compliance deadlines for the new, more stringent limitations and standards in the rule" — which are as early as Nov. 1, 2018, for indirect dischargers and by Dec. 31, 2023 for direct dischargers — the EPA found that "justice requires it to postpone the compliance dates of the rule that have not yet passed, pending judicial review," the agency said in the April 25 notice. "This will preserve the regulatory status quo with respect to waste streams subject to the rule's new, and more stringent, limitations and standards, while the litigation is pending and the reconsideration is underway."

The EPA added that while it "is not making any concession of error with respect to the rulemaking, the far-ranging issues contained in the reconsideration petitions warrant careful and considerate review" of the ELG rule.