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5th Circuit backs US EPA's move to extend waste stream deadlines for coal plants

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5th Circuit backs US EPA's move to extend waste stream deadlines for coal plants

A federal appeals court Aug. 28 upheld the U.S. Environmental Protection Agency's move to postpone certain deadlines associated with Obama-era effluent limitations guidelines aimed at coal-fired power plants.

In doing so, a three-judge panel for the U.S. Court of Appeals for the 5th Circuit concluded that the EPA acted within its statutory authority in responding to industry objections to a 2015 rule that established disposal and treatment guidelines for six different waste streams produced by coal-fired power generators.

In the spring of 2017, the Utility Water Act Group and U.S. Small Business Administration separately petitioned the Trump administration to reconsider the regulation, asserting that new information showed actual compliance costs would be much higher than the EPA had predicted. While urging the EPA to reconsider the entire Obama-era rule, the Utility Water Act Group specifically took issue with the regulation's requirements for two waste streams: flue gas desulfurization wastewater and bottom ash transport water.

The EPA in September 2017 undertook a notice-and-comment rulemaking that extended the earliest compliance dates for those waste streams from November 2018 to November 2020, adding that it planned to initiate a separate rulemaking to further revise them. A coalition of environmental groups challenged that action, arguing that the delay was illegal because the EPA lacks authority under the Clean Water Act to postpone effluent limitation guidelines while it simultaneously revises the same regulations through a separate rulemaking.

The 5th Circuit disagreed, finding that the EPA's actions complied with the Administrative Procedure Act and the agency provided a reasoned basis for its decision. "In response to new information provided to it about the availability and achievability of a subset of regulations contained in a previously promulgated rule, EPA revised its prior rule by changing only the earliest compliance dates applicable only to that subset of the regulations which had the potential to impose needless compliance costs," Judge Edith Jones wrote for the court.

The decision follows a ruling in April by a different three-judge panel for the 5th Circuit that vacated two provisions of the 2015 rule covering leachate and legacy wastewater. In that case, the court called the EPA's acknowledgment that the technology at issue is out of date a "charitable understatement at best."

Meanwhile, as part of the interagency review process, the EPA on Aug. 16 sent the White House a draft proposal that "may result in revisions" to its guidelines for flue gas desulfurization wastewater and bottom ash transport water, according to a federal regulatory website.

Joining in the Aug. 28 decision were Judges Patrick Higginbotham and Gregg Costa. Clean Water Action v. EPA (No. 18-60079)