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Clean Water Action v. United States Environmental Protection Agency

ELR Citation: 49 ELR 20142
Nos. No. 18-60079, (5th Cir. , 08/28/2019)

The Fifth Circuit upheld a 2017 EPA rule that postponed compliance dates mandated by the Agency's 2015 rule setting new effluent limitation guidelines for flue gas desulfurization wastewater and bottom ash transport water from steam electric power plants. Environmental groups argued the 2017 rule effected an unauthorized stay of the 2015 rule. The court found the 2017 rule was not a stay, but rather a revision, and that the Agency possessed inherent authority under the CWA to revise the previously promulgated rule because it issued the 2017 rule following proper notice-and-comment requirements after evaluating legitimate concerns about compliance costs and achievability. The groups next argued that EPA failed to consider all the factors the CWA required when promulgating effluent limits, and asserted that the 2017 rule was invalid because the Agency failed to reconsider these factors when promulgating the rule. The court disagreed, finding that EPA provided a reasoned basis for its decision to postpone two compliance dates for two specific waste streams, and promulgated the 2017 rule using the same procedures it used to issue the 2015 rule. Lastly, the groups argued the CWA forbids EPA from extending compliance dates for any best available technology effluent limitations beyond three years from the date the 2015 rule was promulgated. The court found the plain text of the Act indicated that the three-year compliance deadline referred only to promulgation of the initial limitations, and that the Agency retained discretion to set compliance dates for any subsequent limitations. It therefore denied the groups' petition.