Photo by Rosa E. P. Hance
In 2015, thanks in significant part to work by the Sierra Club and its allies, the U.S. EPA finalized long-overdue technology-based standards known as Effluent Limitation Guidelines (or ELGs) that limit discharges of harmful contamination from coal-fired power plants into our waters. The ELGs, last updated more than 30 years earlier, had never before imposed limits on any of the toxic metals that coal plants dump into rivers and streams despite the fact that the toxicity of these coal plant discharges has been increasing in recent years as more stringent limits on the plants’ air emissions have resulted in additional pollution being scrubbed out of the air and ending up in the water. The new ELG limits, however, only apply to a facility once they are incorporated into the facility’s water discharge permit. And the permit renewal process occurs only once every five years.
The Sierra Club has been deeply concerned about discharges from GenOn’s three coal-fired power plants in Maryland for some time. Publicly reported data collected by the facilities and reviewed by the Sierra Club demonstrated that all three facilities routinely exceed the discharge limits for arsenic and selenium in the 2015 ELGs, often by wide margins, and these discharges are going directly into the Potomac and Patuxent Rivers, which many people rely on for drinking water, fishing, and swimming.
When the Maryland Department of the Environment (MDE) released draft permits for the GenOn coal plants in 2017, the Sierra Club and its allies quickly mobilized on all fronts. Sierra Club members turned out in force to the public hearings on the permit renewals and voiced their concerns about toxic contamination of the rivers in which they swim and fish. Sierra Club’s attorneys retained an expert and, together with allies including the Environmental Integrity Project, Chesapeake Climate Action Network, and Patuxent and Potomac Riverkeepers, submitted technical comments demonstrating the achievability of the ELG limits at each of the three GenOn facilities and supporting compliance by the ELGs’ presumptive November 1, 2020 compliance deadline. The advocacy around the permits garnered support from Maryland legislators, who sent a letter to the Governor on behalf of more than 60 General Assembly members urging timely compliance with the ELG limits.
The collective efforts paid off, and in 2018 MDE finalized permits that require substantial reductions in arsenic and selenium discharges from the GenOn plants in accordance with the ELGs by November 1, 2020.
Down but not out, GenOn sued, challenging MDE’s issuance of the permits in three separate Maryland state court lawsuits. Represented by the Environmental Integrity Project, and in partnership with the Chesapeake Climate Action Network and the Riverkeepers, Sierra Club joined Maryland in defending its permits. The Club’s legal efforts were supported by its local members directly impacted by the coal plant pollution, who served as standing declarants in the litigation. The defensive efforts were vindicated. In May and June 2019, Maryland courts handed GenOn three losses, affirming MDE’s permits across the board and denying GenOn all of the relief it was seeking. These court decisions establish an important precedent for other state permitting agencies grappling with the application of the ELGs to new water discharge permits.
We are very pleased to have been able to work with allies and affected communities to help protect the quality of Maryland waters. However, our work is not over. After its losses in court, GenOn has already petitioned MDE to modify the permits to give it an additional three years to comply with the limits on toxic metals. And the Sierra Club has identified that discharge monitoring data from a fourth Maryland coal plant near Baltimore, whose permit has yet to be renewed, show similar exceedances of the selenium limits in the ELGs. Ensuring timely compliance with the ELGs at the GenOn plants and making sure these limits are incorporated into its next water permit for the Baltimore coal plant will be a top priority for the Club in the coming months. Even as we work to hasten the transition from coal to clean energy, it is critical that we protect our health and water from toxic pollution.