Court orders EPA to reevaluate Obama-era power plant wastewater rule

A federal appeals court is sending the Environmental Protection Agency (EPA) back to the drawing board over its wastewater regulations in a ruling that compares them to a Commodore 64 home computer. 

The U.S. Court of Appeals for the 5th Circuit ruled on Friday that the EPA’s 2015 power plant wastewater pollution rule was not stringent enough, siding with environmentalists.

Circuit Judge Stuart Kyle Duncan ruled in favor of various environmental groups that portions of the wastewater rule regulating legacy wastewater and liquid from impoundments were “unlawful.”

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“The Clean Water Act ... empowers the Environmental Protection Agency to promulgate and enforce rules known as 'effluent limitation guidelines' or 'ELGs.' ... For quite some time, ELGs for steam-electric power plants have been, in EPA’s words, 'out of date.' ... That is a charitable understatement,” Duncan wrote in his ruling.

“The last time these guidelines were updated was during the second year of President Reagan’s first term, the same year that saw the release of the first CD player, the Sony Watchman pocket television, and the Commodore 64 home computer. In other words, 1982."

The judge ruled that in setting the standards for the two types of wastewater, EPA failed to use the best available technology economically available (BAT), an integral part of the Clean Water Act. He said instead, the same method was used from 1982 to determine the standard, equating the decision to “as if Apple unveiled the new iMac, and it was a Commodore 64.”

The decision vacates the two standards and will send EPA back to draft new regulations for the specific types of wastewater.

Environmental groups cheered the ruling.

“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.”

While the rule was first drafted under the Obama administration, the Trump administration itself has also made large strides to rollback and replace key environmental protections, including a methane emissions rule for power plants and Obama’s landmark Clean Power Plan (CPP).

“This is especially important for our children, who are more sensitive to the effects of toxic chemicals yet have no say in the matter,” said Abel Russ, senior attorney with the Environmental Integrity Project. “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.”

An EPA spokesperson said the agency is reviewing the decision.