In a Nov. 8 consent decree, the Environmental Protection Agency (EPA) agreed to a July 23, 2012 deadline to propose the coal-fired power plant effluent limit guidelines (ELGs) with final ELGs to be promulgated by Jan. 31, 2014. Environmental groups had threatened to sue EPA alleging it has a non-discretionary duty under the Clean Water Act for EPA to review the ELGs every five years. The existing ELGs were finalized in 1982. The consent decree requires EPA to consider coal ash storage pond discharges and specific limits on mercury, arsenic, and cadmium discharges.
EPA Administrator, Lisa Jackson, has previously stated that she hoped to propose the new ELGs before 2012; however that goal is not legally enforceable. In addition to working on the revised ELGs, the Agency reported to environmental groups last summer that 35 NPDES permits for power plants would be reviewed by EPA before 2013. Environmental groups have stated that they will be scrutinizing and challenging NPDES permits issued to power plants as an effort to pressure state environmental agencies to include more stringent site-specific limits.
Barnes & Thornburg helped the electric utility industry respond to EPA's information collection request for this rulemaking and will continue to closely monitor EPA's effluent limitations guidelines development. We will keep you informed of opportunities to be involved and influence the guideline development process. Additionally, we will monitor environmental group challenges to NPDES permits in order to better advise our clients on how to avoid or defeat such challenges to their own NPDES permits.
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