Dive Brief:
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The U.S. Court of Appeals for the Fifth Circuit in New Orleans on April 12 directed the Environmental Protection Agency (EPA) to revise its guidelines limiting the discharge of toxic wastewater from power plants.
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The court found that the EPA acted arbitrarily in requiring that power plants continue to use "the same archaic technology" that has been in place since 1982.
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Discharges from steam-electric power plants account for "about 30 percent of all toxic pollutants discharged into surface waters by all industrial categories regulated" under the Clean Water Act, the court said citing EPA information.
Dive Insight:
Earthjustice, which brought the lawsuit against the EPA on behalf of several environmental groups, was challenging the provision of a 2015 rule that allowed power plants to use outdated technologies, including wastewater pits, to treat some wastewater streams.
The suit alleged that the EPA set unlawful technology standards for pre-existing wastewater and combustion residual leachate. While the 2015 EPA rule revamped several other water pollution guidelines based on modern technology standards, it used technology standards dating back 1982 for those two categories.
"It was as if Apple unveiled the new iMac, and it was a Commodore 64," court documents described the complaint.
The EPA defended its action of requiring antiquated technology for legacy wastewater by asserting that "it does not have the data" to justify choosing more advanced pollution control technologies, court documents showed.
The court, however, rejected the EPA's argument and required the agency to revamp its regulations.
"This is a major victory for clean water," Thom Cmar, Deputy Managing Attorney of the Earthjustice Coal Program, said in a statement. "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 pointed out that power plants are among the largest contributors of toxic pollution to U.S. waters. Pre-existing wastewater and leachate contain harmful pollutants such as mercury, arsenic, lead and selenium, the organization said.
Leachate alone would qualify as the 18th-largest source of water pollution in the nation, according to court documents.
"Once again, the courts are sending EPA a loud and clear message," Larissa Liebmann, Staff Attorney at Waterkeeper Alliance, said. "It is time for the agency to do its job and fully protect human health and the environment from toxic coal ash pollutants."