By Diane Martini, Senior Associate Environmental Specialist, Burns & McDonnell
IN APRIL, the Environmental Protection Agency (EPA) promised to repeal and replace the Steam Electric Power Effluent Limitation Guidelines (ELG). What began with an indefinite stay of the rule in April, ended in September with changes to only the early compliance deadlines for two categories of wastewater: flue gas desulfurization (FGD) wastewater and bottom ash wastewater, which were postponed two years to November 1, 2020. No other aspects of the rule were changed.
The September 18, 2017 final rule announced EPA’s intent to review and “potentially revise” only the “more stringent” FGD wastewater and bottom ash requirements. EPA also stated that it will not review or revise any other portions of the rule. Permitting authorities are directed to consider the potential revision and “harmonize schedules to the extent allowed by the 2015 rule.”
What has changed:
The final rule postpones the “as soon as possible” compliance dates from Nov. 1, 2018, to Nov. 1, 2020, for both direct dischargers (40 CFR 423.13) and indirect dischargers (40 CFR 423.16) that send wastewater to municipal treatment plants. EPA expects that the revised portions of the rule will be published by Nov. 1, 2020. This provides relief for indirect dischargers by potentially moving the publication date to November 1, 2020 – with three years to comply before Dec. 31, 2023. Under the 2015 rule, indirect dischargers were required to comply not later than Nov. 1, 2018.
What has not changed:
Everything else. The Sept. 18, 2017 revision to the ELG does not change the Dec. 31, 2023 final compliance date for any part of the rule, nor does it change any numerical standards or other requirements. The “as soon as possible” beginning Nov. 1, 2018 early compliance date remains in effect for fly ash transport water, flue gas mercury control wastewater, and gasification wastewater.
Things to consider:
The Sept. 18, 2017 rulemaking is a final rule. It retains the ELG requirements that were in effect as of Jan. 2016, and the final compliance date remains unchanged. The preamble promises that both regulatory and schedule relief are being considered, but the actual rule change provides neither. EPA is only “potentially revising” the rule, leaving the door open to retaining the rule “as is.” EPA explains that this retention of the 2015 rule is expected to provide more regulatory certainty. However, the preamble discussion of the potential for future revisions and changes to compliance dates adds, rather than removes, regulatory uncertainty.
By retaining the rule, EPA may also be signaling that only minor relief is available. There are several standards that already drive stringent effluent requirements. These include 1980s-era stream standards for selenium (5 parts per billion [ppb]) and mercury (12 parts per trillion), and the 2001 drinking water standard for arsenic (10 ppb). In addition, the National Nutrient Reduction Strategy is addressing nitrogen discharges nationwide, to mitigate “dead zones” in coastal waters that are affecting fisheries. These standards may drive permits issued between now and 2020, and may even supersede the ELG limits in some areas. Under section 510 of the Clean Water Act, States remain free to impose more stringent requirements, but cannot provide less stringent standards than Federal standards.
“Rather than a complete remand and revision of the rule, EPA has elected to do only a narrow review, keeping the rule’s technical requirements and final deadlines unchanged.”
EPA states that it is considering new information that has been developed and submitted since the 2015 publication date, including data from pilot studies and other information. EPA can consider pilot test data when setting limits (2015 Technical Development Document, pages 1-3 to 1-4). Therefore, industry may have an opportunity to provide pilot test data and other information to support alternative limits while the rule is being reconsidered. This could prove to be a double-edged sword, if pilot test data is used to tighten limits.
Continuing to pilot test could benefit the industry by helping to develop promising technology innovations from startup companies that may not otherwise survive a two-year delay. That could mean more competition and possibly better pricing when 2020 rolls around and speculation is (potentially) laid to rest.
In summary, rather than a complete remand and revision of the rule, EPA has elected to do only a narrow review, keeping the rule’s technical requirements and final deadlines unchanged; with no guarantees that there will be any changes at all. If there are no major revisions, then EPA will have taken two years of schedule “float” away from the industry while providing no real relief.