EPA Proposes New Effluent Guidelines and Standards for Existing and New Steam-Electric Power Plants

April 29, 2013


On April 19, 2013, EPA proposed new technology-based effluent guidelines and standards for the Steam-Electric Power Generating Point Source Category under Section 304(b) of the Clean Water Act. EPA last updated the effluent guidelines and standards for steam-electric power plants in 1982. Since that time, the development of new technologies for generating electric power have altered the nature of wastewater streams and corresponding control technologies.

The proposed rule would, for the first time, set federal limits on the toxic metals discharges from existing and new power plants, as well as new or additional requirements for discharges from wastewater streams related to flue-gas desulfurization, fly ash, bottom ash, combustion residual leachate, flue-gas mercury control, nonchemical metal cleaning wastes, and gasification of fuels such as coal and petroleum coke. The new requirements for existing power plants would be phased in between 2017 and 2022.

The proposed rule would apply to nuclear, coal, oil and natural-gas-fired power plants with a capacity greater than or equal to 50 MW. The proposed regulations are anticipated to have the largest impact on coal-fired plants. There are approximately 1,200 steam-electric power plants in the U.S. that generate electricity using nuclear fuel or fossil fuels such as coal, oil, and natural gas, of which, according to EPA, approximately 500 are coal fired.

In addition, EPA announced its intention to align the effluent guidelines and standards for coal-fired power plants with a related rule for coal-combustion residuals, which was proposed in 2010 under the Resource Conservation and Recovery Act. In particular, EPA is considering establishing best management practice (“BMP”) requirements that would apply to surface impoundments containing coal-combustion residuals. EPA is also considering establishing a voluntary program that would provide incentives for existing power plants to dewater and close surface impoundments containing combustion residuals, and for power plants to eliminate the discharge of all process wastewater, except cooling-water discharges.

EPA is considering several options, and has identified four preferred alternatives for the regulation of wastewater discharges from existing sources and one preferred alternative for the regulation of wastewater streams from new sources. For discharges directly to surface water, EPA has proposed establishing Best Available Technology Economically Achievable (“BAT”) guidelines for existing sources, and New Source Performance Standards (“NSPS”) for new sources, for discharges to publicly owned treatment works, EPA has proposed Pretreatment Standards for Existing Sources (“PSES”) for existing sources and Pretreatment Standards for New Sources (“PSNS”) for new sources.

The four preferred alternatives for BAT and PSES for existing sources differ in the number of wastewater streams covered, the size of the units controlled, and the stringency of the treatment controls to be imposed. For example, two alternatives (known as Options 3b and 3c) would establish numeric effluent limitations for flue gas desulfurization wastewater, but one of these alternatives (Option 3b) would exempt facilities with a total plant-level wet scrubbed capacity of less 2,000 MW, while the other alternative (Option 3c) would not provide an exemption. The other two alternatives (Option 3a and Option 4a) did not include effluent limitations for flue-gas desulfurization wastewater.

EPA estimates that, depending on the alternatives for BAT and PSES selected for the final rulemaking, annual pollutant discharges would be reduced by 470 million to 2.62 billion pounds, and water use would be reduced by 50 billion to 103 billion gallons per year. According to EPA, compliance with the proposed rule would have an associated annual cost of between $185 million and $954 million. EPA indicates that no coal-fired plants would need to cease operation as a result of the proposed rule. In addition, according to EPA, fewer than half of coal-fired power plants will incur any costs, because most power plants already have the technology and procedures in place to meet the proposed standards, such as dry-handling systems for fly ash that avoid wastewater discharge.

The public comment period on the proposed rule will be open for 60 days after publication in the Federal Register. EPA is under a consent decree obligation to take final action by May 22, 2014.

This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. Junaid Chida, an O'Melveny partner licensed to practice law in California and New York, Eric Rothenberg, an O'Melveny partner licensed to practice law in Missouri and New York, Gregory Thorpe, an O'Melveny partner licensed to practice law in California, Hugh Hilliard, an O'Melveny counsel licensed to practice law in the District of Columbia and Maryland, and John Renneisen, an O'Melveny counsel licensed to practice law in the District of Columbia, contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.

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