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Today, the Sierra Club, Earthjustice, Environmental Integrity Project, Clean Water Action, Waterkeeper Alliance, and several other public health and environmental groups filed a lawsuit challenging Scott Pruitt’s illegal and indefinite postponement of critical and long-overdue protections on toxic water pollutants discharged by coal-burning power plants.
Coal plants are the number-one source of toxic water pollutants in the country—mercury, arsenic, cadmium, selenium, and dozens of other metals that are extremely harmful to human health and ecosystems even in very small quantities. Coal plants are responsible for almost one-third of all toxic water pollution in our waters. Ironically, as critical air-pollution safeguards have helped remove these dangerous pollutants from the air, water pollution from coal plants has worsened because many of the technologies to reduce air pollution simply transfer those pollutants from the air to the water. Now, more than ever, it is critical to capture and treat that wastewater before it contaminates waters used for drinking water, recreation, and wildlife.
The Clean Water Act requires the EPA to set standards to remove pollutants from coal plant wastewater based on the current state-of-the art technology, and to review those standards every five years. Unfortunately, after the EPA set standards for coal plants in 1982—standards that did nothing to limit toxic water pollution from the major waste streams—the agency kicked back and did nothing for three decades. Meanwhile, states were supposed to be filling the gap by setting limits on a case-by-case basis, but this very rarely happened, as documented in this 2013 report by the Sierra Club and other groups.
After years of frustration at the EPA’s inaction, the Sierra Club several allies sued the EPA and obtained a court order forcing the agency to revise those outdated water pollution standards. Finally, after a nearly six-year rule-making process, which involved hundreds of thousands of public comments, technical and scientific studies, and public hearings, the EPA issued a final rule in 2015 that represented an enormous leap forward.
Among the more significant protections in the rule were a requirement that plants eliminate discharges of water used to transport fly ash and bottom ash wastewater (80 percent of coal-burning units have already eliminated these discharges, so we clearly aren’t talking about an impossible task). The EPA also set limits on mercury, arsenic, selenium, and nitrogen in discharges of scrubber wastewater (scrubbers are a technology used to remove sulfur dioxide and particulates from air emissions). Before this rule, there were no federal limits of any kind on these pollutants, and states were taking their cue from the EPA by imposing almost no restrictions as well. The EPA’s water toxics rule gave coal plants plenty of time to comply—the limits didn’t have to be met until November 2018 at the earliest, and plants could even have until the end of 2023 if they needed more time to get their ducks in a row.
Unfortunately, EPA Administrator Scott Pruitt apparently has little concern for the devastating public health and environmental effects of coal plant pollution, and perhaps even less for the congressional mandate for EPA to require coal plants to reduce this pollution. Despite Pruitt’s public comments committing to transparency and to following the law, on April 12, and without providing the public any opportunity to comment as required by federal law, the EPA issued an indefinite stay of the compliance deadlines in the water toxics rule in a notice that barely spans a page of the Federal Register (82 Fed. Reg. 19,005). The stay not only threatens to indefinitely delay critical water quality protections but also throws the utility industry into confusion and uncertainty, as many utilities and utility commissions across the country had already begun planning and investing in compliance with the water toxics rule. Thus, in one quick signature behind closed doors and without any public input, EPA Administrator Pruitt has created widespread uncertainty and threatened to undo the product of years of study, robust analysis, and public and industry engagement.
The EPA issued the stay under 5 U.S.C. § 705, (Section 10(d) of the Administrative Procedures Act), a rarely used provision that allows the EPA to stay the effective date of regulations pending judicial review “when justice so requires.” The stay notice is devoid of any case, compelling or otherwise, for staying the rule, merely noting that plants were incurring some compliance costs, and demonstrating zero awareness of the public health and environmental impacts of a stay. Moreover, the stay casts aside the Administrative Procedure Act’s required public-participation provisions.
This administrative stay is a blatantly illegal attempt to invalidate a rule that was developed after years of gathering data from the industry, and extensive notice and comment and stakeholder engagement. The law is clear that an agency cannot wipe a rule from the books without going through the full procedure and providing a reasoned explanation for a reversal in its position. The EPA has announced that it will formally “reconsider” the water toxics rule, which is a legitimate action to take following a change in administration. But summarily postponing the compliance requirements in a rule, before any decision has been made to revise the rule, and before any record has been developed or subjected to public input, is not legitimate. This illegal action is typical of the Trump administration’s careless and heartless abuse of administrative process to serve the wishes of big money polluters. We are optimistic that the court will declare EPA’s action invalid and reinstate the long overdue and critically important protections in the water toxics rule.
The Sierra Club is represented by Casey Roberts and Joshua Smith, Sierra Club staff attorneys, and by Earthjustice.