Federal Appeals Court Orders EPA to Strengthen Rule on Toxic Power Plant Wastewater

Siding with environmentalists, the U.S. Court of Appeals for the Fifth Circuit on Friday issued a decision directing the Environmental Protection Agency (EPA) to strengthen limits on toxic wastewater from power plants. The Court’s ruling requires EPA to reevaluate modern wastewater treatment technology to greatly reduce the amount of toxic pollution that power plants are permitted to dump into our rivers, lakes, and streams.

“This is a major victory for clean water,” said Thom Cmar, Deputy Managing Attorney of the Earthjustice Coal Program. “The court made clear that EPA needs to strengthen the rule to protect communities living downstream of power plants, calling into question the legality of the Trump administration’s plans to weaken these public health protections.”

Earthjustice had sued the EPA on behalf of Environmental Integrity Project, Sierra Club, and Waterkeeper Alliance to challenge provisions of a 2015 EPA rule that allowed power plants to use outdated, unlined wastewater pits to continue treating some wastewater streams. Although EPA required modern technologies for several major waste streams, the Agency arbitrarily allowed the industry to deal with leachate and legacy wastewater using an archaic technology last approved for use in 1982. As the Court recognized, “It was as if Apple unveiled the new iMac, and it was a Commodore 64” — one of the first home computers introduced in 1982.

The same environmental groups, joined by Clean Water Action, have also intervened before the Fifth Circuit to defend the rule’s more stringent requirements against challenges brought by industry.

“This is a major victory for anyone who doesn’t want the industrial sludge from coal-fired power plants contaminating the water they use for their morning coffee,” said Dalal Aboulhosn, Sierra Club’s Deputy Legislative Director for Land and Water. “The court’s decision is one step in a longer journey to steer the Trump administration into compliance with our environmental laws and empower the hardworking employees at the EPA to do their jobs of protecting our water resources from polluters.”

“Once again, the courts are sending EPA a loud and clear message,” said Larissa Liebmann, Staff Attorney at Waterkeeper Alliance. “It is time for the agency to do its job and fully protect human health and the environment from toxic coal ash pollutants.”

Power plants are by far the largest contributors of toxic pollution to U.S. waters. Legacy wastewater and leachate are full of harmful pollutants such as mercury, arsenic, lead, and selenium. The contaminants cause cancer, harm children as they develop in the womb, and cause neurological and organ damage.

“One of the great things about this country is that we try to provide all Americans with a clean and healthy environment,” said Abel Russ, Senior Attorney with the Environmental Integrity Project. “This is especially important for our children, who are more sensitive to the effects of toxic chemicals yet have no say in the matter. We are grateful to the court for upholding the clear terms of the Clean Water Act, which requires power plants to treat their wastewater with the best available technology.”

Today’s ruling could also impact a separate, ongoing lawsuit by the same environmental groups and several others against the EPA. Groups filed the lawsuit in 2017 when the Trump administration, in response to industry pressure, improperly postponed compliance with the federal regulation while it considered whether to weaken the rule.

“In light of this decision, the Trump administration should immediately abandon efforts to weaken these vital safeguards at the behest of industry,” said Jennifer Peters, Water Programs Director at Clean Water Action. “Coal plants are the top polluters of toxic waste into our nation’s waters — including drinking water sources — and it’s long past time they stopped putting our health and environment in jeopardy in order to maximize their own profits.”

In Friday’s opinion, Appeals Court Judge Stuart Kyle Duncan was clear about EPA’s failure to regulate effluent effectively, with respect to two wastewater streams discharged by power plants: pre-existing or “legacy” wastewater and leachate that percolates out of coal ash impoundments and landfills. The Court found that EPA had acted arbitrarily in requiring that power plants use modern technologies to treat other wastewater streams, but allowing power plants to continue to use “the same archaic technology in place since 1982 — namely, impoundments” for their legacy wastewater and leachate, despite finding that impoundments are ineffective at removing toxic pollutants from power plant wastewater.

Read the Opinion.