Washington, DC and Pittsburgh, PA
Environmental Alert
(by Ben Clapp, Gary Steinbauer and Mackenzie Moyer)
On October 2, 2025, the Environmental Protection Agency (EPA) published a Proposed Rule and a companion Direct Final Rule to extend certain compliance deadlines for effluent limitations guidelines (ELGs) for the Steam-Electric Power Generating point source category in the Federal Register. 90 Fed. Reg. 47617; 90 Fed. Reg. 47693. EPA is “taking action to provide near-term compliance flexibility to coal-fired power plants by extending seven deadlines in the 2024 ELG rule and additional flexibilities for power generators to enhance the service life of critical energy infrastructure.” EPA states that the proposal seeks to advance the goals of the Trump administration’s Unleashing American Energy Executive Orders and provide reliable energy as demand increases due to the rise of AI and data centers.
Under the Clean Water Act (CWA), EPA is authorized to establish nationally applicable, technology-based ELGs for discharges from different categories of point sources. ELGs are based on technological feasibility, not water quality, and are based on the performance of specific treatment technologies, but do not require use of those specific control technologies.
In November 2015, EPA promulgated revisions to the steam-electric power generating point source category for the first time since 1982. The 2015 Rule set the first federal limitations on certain pollutants, such as toxic metals, discharged from a steam-electric power plant’s largest wastewater streams. As a result of legal challenges, EPA was required to reconsider certain limitations in the 2015 Rule. EPA reconsidered the ELGs for flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water and published a reconsideration rule in 2020 (the 2020 Rule). Environmental groups challenged the 2020 Rule, and that challenge has been held in abeyance since 2022. In 2024, EPA finalized the Steam Electric Supplemental Rule (the 2024 Rule), which established, among other things, zero-discharge limitations for three wastewater streams: (1) FGD wastewater; (2) BA transport water; and (3) managed combustion residual leachate (CRL). The 2024 Rule was also challenged, and the litigation is currently being held in abeyance while EPA reviews and reconsiders the Rule. See Southwestern Electric Power Co. v. EPA, No. 24-2123.
The current rulemaking package is intended to provide more flexibility for subject power plants by extending seven compliance deadlines in the 2024 Rule. First, EPA proposes providing six more years, until December 31, 2031, for existing power plants to submit a Notice of Planned Participation (NOPP) for electric generating units permanently ceasing coal combustion by December 31, 2034, a compliance option that power plants can select to avoid the zero-discharge limitations established for certain waste streams in the 2024 Rule. This deadline is also the subject of the Direct Final Rule, which becomes effective on December 1, 2025, 60 days after publication in the Federal Register, without further notice, unless EPA receives adverse comments during the comment period. If EPA receives adverse comments to the extension of the NOPP deadline for the 2034 subcategory, EPA will withdraw the Direct Final Rule. Second, EPA proposes to extend the compliance deadlines for the zero-discharge limitations for FGD wastewater, BA transport water, and CRL by five years to December 31, 2034. Third, EPA’s proposal makes changes to compliance deadlines related to certain zero-discharge limitations for indirect dischargers—dischargers that send wastewater to wastewater treatment plants instead of directly to a water of the United States. EPA’s proposal aligns the deadlines applicable to indirect dischargers with those of direct dischargers. The latter two proposed extensions were not included in the Direct Final Rule.
EPA is also proposing to expand the transfer flexibilities found in 40 C.F.R. § 423.13(o) by including new options for facilities wishing to transfer between requirements for zero-discharge and requirements applicable to facilities ceasing coal combustion by 2034. Lastly, EPA is proposing to provide permitting authorities with the authority to allow site-specific extensions for paperwork submission deadlines in both the 2020 and 2024 Rules when it is necessary to address unexpected circumstances, including those related to changes to regional capacity market prices or local electricity demands materially exceeding projections made in the most recent iterations of integrated resource plans or other planning documents.
While EPA is not proposing to change the technological bases for the ELGs at this time, EPA is soliciting feedback on whether it should consider a future rulemaking related to the technology-based limits themselves and is requesting information on the availability, economic achievability, resource adequacy, and reliability impacts of the current zero-discharge technologies.
The comment periods on Proposed Rule and Direct Final Rule close on November 3, 2025. Additionally, EPA is hosting a webinar on the rule package on October 14, 2025.
Babst Calland attorneys continue to track these developments and are available to assist with CWA-related matters. For more information on this development and other water issues, please contact Ben Clapp at (202) 853-3488 or bclapp@babstcalland.com, Gary E. Steinbauer at (412) 394-6590 or gsteinbauer@babstcalland.com, Mackenzie Moyer at (412) 394-6578 or mmoyer@babstcalland.com, or any of our other environmental attorneys.
