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Southwestern Electric Power Co. v. United States Environmental Protection Agency

ELR Citation: 49 ELR 20067
Nos. 15-60821, (5th Cir., 04/12/2019)

The Fifth Circuit vacated portions of a 2015 EPA rule that set new effluent limitation guidelines (ELGs) for legacy wastewater and combustion residual leachate that are discharged from steam electric power plants. Environmental groups argued that the Agency arbitrarily set the ELGs using an older, less stringent standard—best practicable control technology currently available (BPT)—rather than the stricter standard—best available technology economically achievable (BAT)—that has been applied to direct discharges of toxic and nonconventional pollutants since 1989. The court concluded that EPA acted arbitrarily and capriciously by requiring power plants to use the BAT standard to treat other wastewater streams while allowing them to continue to use BPT for legacy wastewater and leachate, despite recognizing in the rule itself that the BPT standard was ineffective at removing toxic pollutants from wastewater. It therefore vacated those portions of the rule and remanded to EPA for reconsideration.