On April 5, 2017, the EPA responded to a request from industry stakeholders saying it will reconsider the Obama-era Effluent Limitations Guidelines and Standards for the Steam Electric Power Generating Point Source Category rule (“ELG Rule”) that set the first federal limits on how much toxic metal can be discharged with power plants’ wastewater.  80 Fed. Reg. 67838 (Nov. 3, 2015).

When the EPA updated the rule in 2015, it said the older version did not adequately address toxic metal discharges—particularly discharges of mercury, lead, and selenium—because it focused on setting out particulates rather than treating dissolved pollutants.  Of the approximately 1,080 steam electric power plants in the U.S., around 134 of those plants will have to make significant capital investments to meet the requirements of the new rule.  While the requirements affect some steam electric power plants, they do not apply to plants that are oil-fired or smaller than 50 megawatts.

In his letter to the Utility Water Action Group (“UWAG”) and the U.S. Small Business Administration Office of Advocacy—both of whom had recently petitioned the EPA to review and reconsider the effluent limitations rule—Scott Pruitt stated it would be “in the public interest” to reconsider the rule.  He cited the recent Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs, stating regulatory relief in the ELG rulemaking would play a key role in the implementation of the Executive Order’s policies encouraging agencies to eliminate unnecessary regulations and reduce costs on regulated entities.

Administrator Pruitt also announced that the EPA intends to publish in the Federal Register an immediately effective administrative stay of the November 2018 compliance deadlines contained in the Final Rule so the agency can determine whether portions of the rule should be remanded for further rulemaking.

Finally, the letter indicated that EPA plans to ask the U.S. Court of Appeals for the Fifth Circuit to hold in abeyance litigation over the rule’s validity during the review process, and on April 14 EPA filed the abeyance motion.  The UWAG, Southwestern Electric Power Co., Union Electric Co., Duke Energy Indiana, Inc. and the city of Springfield, Missouri, had previously challenged the rule, arguing the EPA violated the Administrative Procedure Act by withholding “essential data, methodologies and analyses” from the public record as confidential business information.  Currently, the EPA’s response in the case is due to the Firth Circuit by May 4.  However, the proposed stay would last for 120 days until September 12, 2017.

The authors of this post will continue to provide updates as they occur.  Please feel free to contact any of the authors for more information.