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

EPA must update guidelines for reducing pollution from steam-electric power plants.

NEW ORLEANS — Siding with environmentalists, the U.S. Court of Appeals for the Fifth Circuit on Friday issued a decision directing the 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.

“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.”

“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Sierra Club and Waterkeeper Alliance to challenge provisions of a 2015 EPA rule that allowed power plants to use outdated, unlined wastewater pits to continue treating some wastewater streams.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.

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.

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The Environmental Integrity Project is a nonprofit, nonpartisan watchdog organization that protects public health and the environment by investigating polluters, holding them accountable under the law, and strengthening public policy.

Earthjustice is the premier nonprofit environmental law organization. We wield the power of law and the strength of partnership to protect people’s health; to preserve magnificent places and wildlife; to advance clean energy; and to combat climate change. We are here because the earth needs a good lawyer.

Since our founding during the campaign to pass the landmark Clean Water Act in 1972, Clean Water Action has worked to win strong health and environmental protections by bringing issue expertise, solution-oriented thinking and people power to the table. We will protect clean water in the face of attacks from a polluter friendly Administration

Waterkeeper Alliance is a global movement uniting more than 300 Waterkeeper Organizations and Affiliates around the world, focusing citizen action on issues that affect our waterways, from pollution to climate change. The Waterkeeper movement patrols and protects over 2.5 million square miles of rivers, lakes, and coastlines in the Americas, Europe, Australia, Asia, and Africa. For more information please visit waterkeeper.org.

The Sierra Club is America’s largest and most influential grassroots environmental organization, with more than 3.5 million members and supporters. In addition to protecting every person’s right to get outdoors and access the healing power of nature, the Sierra Club works to promote clean energy, safeguard the health of our communities, protect wildlife, and preserve our remaining wild places through grassroots activism, public education, lobbying, and legal action. For more information, visit www.sierraclub.org.



Abel Russ, Environmental Integrity Project, (802) 482-5379, aruss@environmentalintegrity.org

Thom Cmar, Earthjustice, (212) 845.7387, tcmar@earthjustice.org

Michael Kelly, Clean Water Action, 202-895-0420×103, mkelly@cleanwater.org

Maia Raposo, Waterkeeper Alliance, (212) 747-0622 x116, mraposo@waterkeeper.org

Brain Willis, Sierra Club, (202) 675-2836, brian.willis@sierraclub.org