Coal plant operators are moving to take advantage of a Trump administration rule that critics say allows continued dumping of toxic wastewater into local lakes and rivers.
Owners of 23 coal plants throughout the Midwest and Southeast are asking state regulators to align their water permits with "effluent limitation guidelines" finalized last year. Scores of additional applications are expected, particularly from operators whose plants are struggling and who are eager to avoid installing equipment to cleanse waste streams from the aging facilities, environmentalists say.
"This is really just the leading edge of what will become a much broader wave of power plants seeking to extract as much of an advantage as they can out of the handouts that the Trump EPA gave them," said Thomas Cmar, deputy managing attorney for Earthjustice’s coal program. Once changes are made to the state-approved permits, which are good for five years, Cmar said it will be difficult for EPA to undo that work.
Adding urgency to those requests is legal pushback from environmental groups the Biden administration is facing. And EPA may nix the regulation in the coming weeks in an attempt to close loopholes.
The coal industry is warning that a new rule or restrictions could set off a cascade of plant closures.
Michelle Bloodworth, who leads America’s Power, a trade group that advocates for coal facilities, said, "We remain concerned that additional pressures put on the coal fleet, including those that arise from overly stringent updates to existing environmental regulations, will likely lead to additional retirements, further risking the reliability and resilience of the grid."
Industry argues that water quality protections are still in place and that Trump’s rule makes financial sense for struggling coal plants.
One industry source who asked to remain anonymous emphasized the rule won’t extend the life of any coal plant and said utilities are reluctant to invest in facilities slated to close.
Biden’s next move
Some coal plants use water to clean scrubbers and flush ash out of the bottom of the boilers. The water, which can be laced with toxic chemicals like arsenic, mercury and selenium, is discharged into settling ponds. When the ponds overflow, the wastewater is dumped into nearby waterways.
The practice has made coal plants the largest source of toxic industrial wastewater pollution in America.
When the Trump administration finalized its rule last summer, it was hailed as a step toward "American energy independence." It rolled back standards set in 2015 under the Obama administration — the first update in more than 30 years to federal rules governing toxic wastewater pollution from power plants.
The 2020 rule also pushed back the compliance dates for limiting wastewater generated at coal-fired power plants from two specific waste streams: waste generated when sulfur dioxide is removed from the facilities’ emissions, and water used to flush the bottom ash out of plants and into coal ash pits. Coal plants that close, repower or switch to natural gas by 2028 are exempt. A similar exemption is extended to "low utilization" plants that operate less than 10% of the time, though those facilities would be subject to some new minimal treatment standards.
Last fall, a slew of environmental groups sued EPA and asked a federal appeals court to review the rule, which they said was in response to industry requests with no justification beyond saving the utility sector money (Greenwire, Nov. 2, 2020).
That case could shed light on the Biden administration’s next move. EPA said in court documents that it will decide whether to initiate a new replacement by late July.
Betsy Southerland, a former career official in EPA’s Office of Water who worked on the Obama-era rule, said the fastest option would be to remove the Trump-era exemptions and move up the rule’s effective date.
The 2015 Obama standards required coal plant operators to move to dry ash handling systems or install closed loop wastewater treatment systems for bottom ash disposal, and remove most pollutants from scrubber wastewater.
The vast majority of U.S. coal plants have already moved to dry ash handling or closed loop systems. When EPA finished its update last year, it estimated that the rules would apply to roughly 75 of the country’s 914 coal plants.
Environmentalists say utilities have sought to use Trump’s rule as a hedge between retiring a plant or making the needed upgrades. DTE Energy and Consumers Energy, a pair of Michigan utilities, have sought permit modifications from state regulators to push back compliance with the rule from 2023 to 2025.
That would effectively give the power companies another two years to decide whether to install pollution controls or shut down. Belle River, a DTE facility, is currently slated to retire in 2029 or 2030. Consumers has signaled it is considering early retirement dates for the J.H. Campbell facility.
"I think they are trying to preserve maximum flexibility and delaying any investments they need to make until the last possible minute," said Elena Saxonhouse, an attorney at the Sierra Club’s environmental law program. "It would be better for them to hurry up and stop this egregious water pollution or close the plants as soon as feasibly possible."
A DTE spokesman said the company has not made any changes to its retirement schedule and planned to remain in compliance with standards. "We owe it to our communities, employees and other key stakeholders to thoroughly evaluate all options provided in the ELG rule to ensure that we are compliant with the rule," spokesman Eric Younan wrote in an email.
Gas, blackouts and ‘reliable’ power
Some utilities are moving to take advantage of specific subcategories to ease pollution restrictions.
That includes the Tennessee Valley Authority, a federally owned corporation, which earlier this year told state regulators that its Cumberland coal plant in Tennessee should qualify for the "high flow" subcategory under the Trump rule.
If finalized, the permit change would allow the plant to discharge nearly 10 times more mercury than allowed at other power stations, which could affect downstream fishing and the Cross Creeks National Wildlife Refuge.
TVA has long argued the plant, a sprawling 1970s facility on the shores of the Cumberland River in Tennessee, merits a Clean Water Act exemption given the massive amount of water needed — more than 4 million gallons per day — to clean its air filters. The utility has also argued pollution reductions would necessitate costly equipment treatment upgrades (Greenwire, Nov. 22, 2019).
TVA is weighing constructing a multimillion-dollar system to cleanse bottom ash transport water or shuttering the units and replacing the lost generation with natural gas or a combination of gas, solar and storage, according to a letter that Paul Pearman, a senior manager at TVA overseeing water permits, sent state regulators in May.
The utility is also considering closing the plant by 2028, he wrote, but replacing the units with gas may be complicated by Biden’s executive order calling on the federal government — including TVA — to tackle climate change and become carbon-free by 2035, Pearman wrote.
The timing surrounding the closure of the Cumberland plant is also sensitive in light of the major power outage that blackened Texas in February, he added. "The TVA system performed well during these winter storms, but that crisis highlights the challenges that electric utilities face during extreme weather and the fundamental importance of reliable power generation," he wrote.
Scott Banbury, of the Sierra Club’s Tennessee chapter, said he’s grateful TVA is weighing shutting the plant by 2028 and he’s hopeful the Biden EPA will reverse the Trump effluent rule, which he called "bad policy."
TVA is also applying for changes to permits for other coal plants — Bull Run, Gallatin and Kingston — and keeping "all options" open, said Scott Brooks, a spokesman for the utility.
In North Carolina, Duke Energy Corp. installed new dry ash handling systems and upgraded its wastewater treatment systems to comply with the 2015 regulations, yet the utility has sought to take advantage of the Trump-era standards with requests for a series of permit modifications at five coal plants.
The request comes as Duke is locked in a fight before North Carolina utility regulators over the future of its coal fleet in the state. Federal figures show the company’s coal fleet is running less and less. In 2020, three of the plants — Belews Creek, Marshall and Roxboro — ran less than a third of the year.
Environmentalists say the falling output shows the company should accelerate the closure of its coal facilities. They framed the permit requests as part of an attempt by Duke to save on costs and keep the plants open longer by requiring less rigorous treatment of wastewater.
In written comments to the North Carolina Department of Environmental Quality, the Southern Environmental Law Center wrote that the company’s request would result in an "absurd situation," in which Duke’s plants would be allowed to increase pollution after already installing pollution controls.
A Duke spokesman said the changes would not result in a cost savings or affect water quality. The moves were simply meant to bring the company’s permits in line with the new federal standards.
Either way, Duke is ultimately moving to close its coal plants in an attempt to achieve net-zero carbon emissions by 2050, said Bill Norton, a spokesman for the utility.
"We recognize that change is on the way and coal units will continue to incur environmental compliance costs, making their ongoing operation more expensive for our customers," Norton wrote in an email. "That is one reason why Duke Energy continually explores ways to accelerate our energy transition in North Carolina and across our system, moving us away from coal while protecting the reliability and affordability our customers depend on."