Thursday 24 January 2019

EPA’s Action to Delay Protections Means Dire Local Impacts & Is Illegal

Waterkeepers Chesapeake strongly oppose EPA’s proposal to delay compliance deadlines for the Steam Electric Effluent Limitations and Guidelines (ELG), which became final in November 2015 and went into effect at the beginning of 2016. EPA should immediately reinstate all compliance deadlines for the 2015 ELG rule. EPA should also notify state permitting authorities and power plant utilities that the ELG rule is in effect and must be implemented according to the compliance deadlines outlined in the 2015 rule, which already allow utilities plenty of time to come into compliance.

“By allowing toxic pollutants from power plants, such as toxic metals, arsenic, selenium, and lead, into our waterways there will be a tremendous impact on our entire region. Our waterways, communities and children will be irreversibly harmed if EPA delays the compliance deadlines of the ELG rule,” said Betsy Nicholas, Executive Director, Waterkeepers Chesapeake.

Prior to being finalized in 2015 these standards had not been updated since 1982, despite the fact that coal-burning power plants and other steam electric power plants are THE largest toxic water polluters in the country, responsible for approximately 30% of all toxic pollution dumped into surface waters by industries regulated under the Clean Water Act. The 1982 rules didn’t place limits on toxic pollutants in power plant discharges. Delaying the new toxic water pollution protections sets us back three and a half decades.

The Delay Has Dire Local Impacts

In June, the Trump administration proposed delaying the compliance dates, explaining they would be postponed until the EPA “completes reconsideration of the 2015 rule,” a rule that took years to draft, with several opportunities for public review and input. After the short 30-day comment period ended, the EPA held one public hearing on July 31st in Washington, DC, only after environmental groups demanded it. Phillip Musegaas from Potomac Riverkeeper Network, Baltimore Harbor Waterkeeper Angela Haren, Gunpowder Riverkeeper Theaux LeGardeur and Betsy Nicholas gave testimony highlighting how since the EPA proposed the delay in complying with the guidelines, some states and utilities have pulled back on preparing to limit the amount of toxins in their wastewater. Utilities that were planning to clean up polluting facilities are now putting those plans on hold while they wait to see the fate of the rule.

  • Dominion Energy Virginia’s Chesterfield Power Station, located on the James River near Richmond, adjoins the Dutch Gap Conservation Area, a popular site for fishing, swimming, hiking, and other recreational activities. Wastewater from the coal ash ponds and other waste streams at Chesterfield discharge into Farrar Gut, part of the conservation area. The state permitting agency relied on the ELG Rule in its decision to reissue the Chesterfield VPDES permit, and significant resources have already been expended at Chesterfield to ensure compliance with the ELG Rule within the prescribed deadline. The feasibility of compliance is already well established at Chesterfield and any further delay in enforcing the ELG Rule’s provisions, including any weakening of the standards themselves, would be harmful to the public and to the environment surrounding the plant.

  • In Maryland, NRG’s Dickerson and Morgantown coal power plants on the Potomac River and Chalk Point on the Patuxent River are under a federal court settlement which requires these plants to comply with the new ELG limits on mercury, arsenic and selenium. Once EPA stayed the deadlines for these limits, Maryland regulators quickly walked back their commitment and will not require new limits on these toxic metals until a new rule or deadlines are set. Despite the state’s clear authority to set protective limits on these metals regardless of EPA’s stance, Maryland is cowing to industry pressure and blaming EPA for its failure to protect the Potomac and Patuxent and millions of people who depend on these rivers for clean drinking water. This is what happens when EPA removes the “floor” of environmental protection - states are unwilling to take up the fight in the absence of EPA leadership.

  • Along the Patuxent River, communities are faced with severe environmental justice issues due to coal waste and coal by-products. In Waugh Chapel near Crofton, MD, residents have been drinking bottled water for years because Constellation Energy and its contractors poisoned their well water and then the coal pit was “capped” with a commercial shopping center, which of course gave a fresh profit windfall to the folks responsible for that toxic mess. Further south, is Chalk Point power plant operated by NRG where in 2000 the plant flooded thousands of gallons of bunker fuel oil into the river, which was blown by hurricane force winds downriver, essentially killing what remained of one of the most productive shellfish areas in the state. Today Chalk Point’s coal ash goes into nearby rural Brandywine where the company’s discharge reports indicate they have managed to contaminate the groundwater at fifty times the Federal drinking water standard for cadmium, arsenic and selenium with its coal byproducts also leaching into nearby Mattaponi Creek---a significant sub-tributary of the Patuxent River. Moreover, the Brandywine coal waste site has rarely been in legal compliance over the past two decades with the waste haphazardly piled up in mounds. The dust from those mounds of coal dust blowing on windy days in great black/gray clouds into the surrounding neighborhood where researchers claim that you can likely find coal dust in the vacuum cleaner bags located in people’s homes. The legacy of coal waste in the Patuxent watershed is so egregious it will take several lifetimes to clean up the mess with an unknown toll of human health. 

  • In the Baltimore area, the C.P. Crane power plant (now owned by Middle River Power) continues to request leniency regarding wastewater and stormwater discharge limits, while parts of the Middle River continue to experience large fish kills from contaminated sediment.

  • ELG 23000 stream imageThe upper Gunpowder River has a nationally recognized population of wild trout, and provides drinking water for 1.8 million people in the Baltimore metro area. The lower River has fish consumption advisories and various impairments including PCB’s and heavy metals as it empties into the imperiled Chesapeake Bay. The current ELG rule provides certainty that meaningful reductions in toxic and bioaccumulative pollutants will be implemented and would greatly benefit Maryland residents that work, live and recreate by crabbing, fishing and swimming in these waters.

These are just a few examples of the egregious harm toxic pollution from coal-fired power plants have caused in our region. A delay in complying with the 2015 ELG Rule will mean lasting harm to people’s health and a loss of jobs.

The Delay is Illegal

Waterkeeper Alliance President Robert F. Kennedy Jr. countered the utilities’ claims that making these investments would cause harm, comparing the harm to industry profits to the lasting developmental harm that mercury has on children. He also questioned the basis for EPA’s hearing, stating: “This hearing is illegal. I know the Clean Water Act and Administrative Procedure Act backwards and forwards. Nothing in there gives you authority to suspend a rule. There has already been a rulemaking that gave us the limits that EPA is now trying to destroy.”

EPA lacks authority under both the Clean Water Act and the Administrative Procedures Act to postpone these compliance deadlines. As a federal administrative agency EPA only has the authority granted by Congress through statutes.

The Clean Water Act also prohibits compliance dates beyond three years following the issuance of new ELG standards. The intent of the Clean Water Act is to require more stringent discharge limits on pollutants over time to reflect advances in pollution control technologies. Indefinitely delaying compliance standards that have already been issued clearly contradicts this intent. 

EPA’s proposal to delay compliance deadlines is based solely on costs the power plant industry will allegedly incur in order to comply with these new standards, and completely ignores the public health, environmental, and economic benefits of reducing water pollution from power plants.

EPA is expected to finalize their decision on delaying the requirements of the ELG rule in August. Waterkeeper Alliance joined several other national and regional groups who filed a lawsuit to challenge EPA in court if it continues this process of rolling back crucial water protections. 

The Trump administration launched its assault on our clean water and drinking water protections with a proposed repeal of the Clean Water Rule. A lengthy, deliberate, and inclusive process led to the 2015 Clean Water Rule, a rule protective of vital waterways and based in sound law and sound science. By comparison, the Administration’s scheme to repeal and eviscerate the 2015 Clean Water Rule has been hasty and haphazard, ignoring the strong legal and scientific basis for the Rule, disrespecting its broad public support, and providing little opportunity for the many clean water stakeholders to voice their interest in inclusive Clean Water Act coverage to protect the nation’s waters.

This proposed rulemaking contradicts the law and science that is the foundation for the Clean Water Act successes of the past 40 years, will remove Clean Water Act protections for millions of wetland acres and stream miles, and will cripple federal and state clean water initiatives for the foreseeable future. This rulemaking ignores the robust record in support of the Clean Water Rule, and intentionally limits the opportunity for affected communities to express their views about this proposal.

We oppose this heartless scheme to repeal the 2015 Clean Water Rule and to gut the protections that have prevented reckless pollution of the nation's waterways for decades. The repeal will mean more pollution to the lakes and streams we rely on for drinking water supply or for fishing and swimming, and a green light for the rampant destruction of wetlands that prevent dangerous flooding. We urge the Administration to withdraw its proposal immediately. If the agencies decide to consider any potential revisions to the 2015 Clean Water Rule, they must engage in a thoughtful, inclusive, science-based, and legally sound process for doing so.

Make your voice heard! The Clean Water Rule was published in the Federal Register. Comments must be submitted to the docket by September 27, 2017.

You can submit comments with our Action Alert here.


You can use these Talking Points, sample comments, and the resources listed below to submit comments directly online here: 


Repeal of Clean Water Rule: What’s At Stake, SELC, June 2017

Putting Drinking Water First: Restoring Clean Water Act Protections to Streams and Wetlands, Clean Water Action, Spring 2017

We All Live Downstream, National Wildlife Federation, March 2017

New Attempt to Muddy Clean Water Protections, National Wildlife Federation, June 2017

Clean Water for All Campaign,

Fact Sheet: What You Need to Know about the Rollback of Clean Water Safeguards

Social media:

Hashtags: #DefendWater #ProtectCleanWater #DirtyWaterRule

CWR DownTheDrain resized

Support our work to protect your clean water!

EPA is trying to roll back a 2015 rule that establishes the first-ever uniform limits for toxic water pollution from coal-fired power plants, America’s #1 source of toxic water pollution. Before the agency tries to dismantle the rule, it must first find a legal way to suspend the fast-approaching compliance deadlines—a step that has proven more difficult than Scott Pruitt might have expected. 
EPA has initiated a formal notice & comment rulemaking process just to suspend the deadlines under the 2015 rule. The comment period ended, however EPA granted Waterkeeper Alliance's request to hold a public hearing on July 31 in Washington. 
This hearing will be a great opportunity to turn people out and express our opposition to the current regime’s anti-clean-water agenda. I want to encourage to join us in DC to let EPA know how you feel about having vital protections for your water stripped away as a favor to our country’s biggest polluters.
Here’s the info for the hearing:
Monday, July 31 at 1:00 pm
EPA Headquarters
William J. Clinton - East Building, Room 1153
1201 Constitution Avenue, NW
Washington, DC
If you are planning to speak (or even just attend), please send an email to This email address is being protected from spambots. You need JavaScript enabled to view it. and copy This email address is being protected from spambots. You need JavaScript enabled to view it. ASAP.
Go to our Facebook event page and let us know you are coming! Follow #NoToxicWater!
You can use these talking points to draft your testimony.
Read Waterkeeper Alliance's blog for more info.
Support our work to protect your clean water!