The U.S. Environmental Protection Agency’s decision last year to reconsider a rule directing power plants to reduce toxic pollutants in their wastewater is affecting what Maryland plans to require of three coal-burning facilities in that state. Activists say it’s an example of how the changing federal attitudes toward environmental regulation trickle down to the Chesapeake Bay region.Morgantown Generating Station on the Maryland shore of the Potomac River is one of three Maryland power plants with discharge permits up for renewal. Environmentalists want the plants to be required to meet new toxic discharge limits by 2020, but the EPA is reconsidering its rule. (Chesapeake Bay Program)

Five-year pollution discharge permits are up for renewal for these plants: Morgantown on the lower Potomac River in Charles County; Chalk Point on the Patuxent River and Dickerson on the Potomac, north of Washington, DC. All are owned by NRG Energy, Inc., based in Princeton, NJ, though the company is in the process of transferring ownership.

With the future of the EPA rule uncertain, regulators with the Maryland Department of the Environment have tentatively decided to give the facilities at least two years and potentially up to five years before they’d have to curtail discharges of toxic metals like arsenic, mercury and selenium, as well as other pollutants, into the state’s rivers.

“We’re working on a final determination of the permits based on the rule in place,” MDE spokesman Jay Apperson said.

In 2015, the EPA finalized a rule that was years in the making and set the first federal limits on the amount of toxic metals and other harmful pollutants that steam electric power plants are allowed to discharge in several of their largest sources of wastewater. Citing technology improvements in the industry over the last three decades, the agency required affected plants to install or upgrade wastewater treatment systems, or otherwise adjust the plant’s operations to curtail discharges.

The rule applies in part to discharges of water that is used in the plants’ air pollution scrubbers and to flush bottom ash out of their boilers.

The rule that’s in place now, though, may or may not be later. The EPA originally ordered the new limits to be phased in starting this year, as each facility’s five-year discharge permit came up for renewal. All were supposed to be in compliance by 2023.

But in April 2017, EPA Administrator Scott Pruitt put the rule on hold while the agency weighed petitions complaining about its cost. That drew lawsuits from environmental groups, which argued the delay was illegal. In August 2017, the EPA reinstated the rule, but delayed its effective date to 2020 while the agency continues to consider revising it.

In Maryland, environmentalists — who for years had pressed the EPA to crack down on power plant wastewater — are now urging the MDE to require the three plants to upgrade their treatment by 2020 at the latest. The facilities have been on notice about the upgrades since 2015, they argue, and the original deadline for action was 2018. If nothing is required now, they warn, discharges of metals and other pollutants could continue unabated for another five years under the terms of the discharge permits — and maybe longer, if the EPA proposes weakening or withdrawing the rule.

“They get another three years during which they can discharge a bunch of toxic heavy metals into the water. They’ve already got two, ‘’ said Abel Russ, a lawyer with the Environmental Integrity Project, a Washington, DC, advocacy group.

But NRG spokesman David Gaier says that the MDE’s caution is appropriate. In addition to the industry’s cost complaints, Gaier said the EPA is reviewing whether the treatment upgrades required under the rule are feasible and would achieve the desired pollution reductions.

“Installing different or additional control equipment before the EPA finalizes the requirements would be technically and economically irresponsible,” Gaier wrote in an emailed response to questions.

The Effluent Limitations Guidelines, or ELGs, as the rule is officially known, have been the subject of a legal and regulatory tug of war between environmentalists and the power industry for years.

Nationwide, the EPA estimated that steam electric generating plants discharge 2.2 billion pounds of pollutants annually in their wastewater.

In the Chesapeake watershed, the agency estimated that power plants were putting out 186 million pounds, including 1.4 million pounds of boron; 6,560 pounds of selenium; and 2,510 pounds of arsenic per year.

They also discharge nearly 1 million pounds of nitrogen, one of the nutrients that feeds the Bay’s algae blooms and dead zones. The Chesapeake restoration effort missed its 2017 interim target for nitrogen reduction by about 10 million pounds, according to the Bay Program, and needs to reduce another 27 million pounds a year by 2025.

Many of the pollutants targeted by the rule can cause “severe health and environmental problems in the form of cancer and non-cancer risks in humans, lowered IQ among children, and deformities and reproductive harm in fish and wildlife,” the agency said.

At an MDE informational meeting last fall, Jim Long, a Charles County watershed activist, pointed out that the lower Potomac River near the Morgantown plant is “one of the Chesapeake Bay’s most intense areas for spawning striped bass” and that a research study had found evidence that fish “bioaccumulate,” or take in increasing levels, of selenium, one of the pollutants discharged by Morgantown.

Environmental groups threatened in 2009 to sue the EPA, arguing that pollution limits on power plant discharges hadn’t been updated in decades. A year later, the agency signed a consent decree with the groups that spelled out a timeline for adopting tighter discharge limits.

When the ELG rule was finalized in November 2015, the EPA projected that the application of “best available technology” treatment would reduce the most toxic pollutants in the wastewater by more than 90 percent nationwide. Nitrogen discharges also were projected to be cut by 99 percent overall.

Industry groups promptly filed suit challenging the rule. Before the case could be heard, two groups petitioned the new EPA administrator in spring of 2017 to reconsider the rule and put its rapidly approaching deadlines on hold while doing so. In a letter to Pruitt, the Utility Water Act Group argued that the rule would “cause negative impacts on jobs due to the excessive costs of compliance — which were grossly underestimated by EPA — and regulatory burdens forcing plant closures.”

The EPA had estimated that only about 12 percent of the nation’s coal plants would need to take steps to comply with the new limits. Of those needing to alter their operations or upgrade treatment processes, the agency projected they could meet the new limits at a cost of less than 1 percent of each facility’s revenue, and Maryland environmental groups say that NRG reported getting its plants in compliance would cost only about 0.3 percent of revenues. Dozens of plants nationwide were already in the process of complying with the rule, and states were beginning to draft discharge permits that imposed the new limits when the EPA pulled the rule back for review.

On its website, the EPA now says it is appropriate to postpone the rule’s impending deadlines “to prevent the unnecessary expenditure of resources” until its review is finished. The agency said that it expects to propose a new rule by December of this year, but that it may not be finalized until the fall of 2020.

At the time the EPA was putting the rule on hold and then delaying its effective date, the MDE was renewing discharge permits for the three NRG coal plants.This photo taken in August 2017 by the Potomac Riverkeeper Network shows a reddish plume in the discharge at Morgantown Generating Station. Maryland environmental regulators said they got no explanation for the apparent discharge, and an NRG Energy spokesman declined to comment, saying the photo’s authenticity is “not certain or verifiable.” (Potomac Riverkeeper Network)

“This is a really good example,” said Potomac Riverkeeper Dean Naujoks, “of where the EPA, when it fails to do its job, is making it really hard on MDE.”

Naujoks said he’s particularly concerned about the Morgantown plant. Aerial photos his group took last summer above the plant show a dark red plume coming out of an outfall into a canal that connects to the river. He said he’s been unable to get an explanation of what caused the discoloration.

MDE’s Apperson said state inspectors visited the plant twice to question personnel and review records but “no explanation for the apparent discharge, in terms of either the cause or the substance, was found.” NRG’s spokesman declined to comment, saying the authenticity, location and dates of the photos is “not certain or verifiable.”

The Potomac Riverkeeper and other environmental groups argued in comments submitted to the MDE that the plant’s discharge of arsenic frequently exceeds the new rule’s limits, and that levels have been as much as 13 times higher than the maximum the regulation would allow.

There are oyster beds about a half-mile downriver from the Morgantown plant open to commercial harvest, according to Naujoks.

“I think the state and the public deserve to know about the conflicts of trying to resurrect an oyster program and caving in on rules that would eliminate toxic discharges right up stream,” the riverkeeper wrote in an email. Last winter, he added, he saw anglers fishing right by the plant because the water being discharged is warmer than the river and tends to attract fish.

The groups also submitted a consultant’s report suggesting that the Morgantown plant is already close to meeting some of the pollutant limits in the EPA rule, and could, with the installation of a biological treatment system, reduce arsenic and selenium enough to comply as well. They urged the MDE not to be dissuaded by the EPA’s reconsideration of the rule, arguing that the plants ought to be able to install new treatment or adjust their process to meet the rule in two years’ time, at the latest.

Many of the pollutants of concern in the plants’ discharge are byproducts of the installation of air pollution scrubbers installed in 2009 to meet Clean Air Act requirements. NRG spokesman Gaier said the company installed systems at that time to treat the wastewater, and that they “significantly” reduce pollutants being discharged. He pointed out that by the MDE’s own analysis, the discharges of arsenic, selenium and a couple of other pollutants from the plants do not have a “reasonable potential” to exceed levels in the receiving rivers that would be deemed harmful to fish or people.

The EPA rule, though, requires plants to install the “best available” treatment technology to reduce toxic pollutants, regardless of how their concentrations are dissipated when mixed in the water downstream.

Ed Stone, manager of MDE wastewater permits, said his staff is reviewing comments from all sides.  He said that the MDE could legally impose requirements on the power plants more stringent than the EPA’s regulations. But, he added, “The time frame and resources [needed] to get a legally defensible requirement in place is significant. We have to weigh the benefits versus the costs of that.”

Under the draft permit floated last year by the MDE, the plants’ owners would have to comply with the existing rule’s limits if the EPA opts not to change them, but they could get extra time to do so if the federal agency alters the deadlines again. If the EPA does alter the limits, the MDE said it would reopen the plants’ permits and revisit requirements and deadlines at that time.

Russ, of the Environmental Integrity Project, said Maryland’s response to date is not unexpected, given the uncertain outcome of the EPA’s review.

“Once you put on the brakes, the states don’t know what to do,” he said. While some states will forge ahead with regulations as strong or stronger than the federal rules, he added, “a lot of states will say they’re short-staffed and don’t have resources, [and] don’t know what to do, so don’t do anything.”

Stone said he hopes to have made a final determination by summer on the three plants’ permits. By that time, the plants may be under new ownership. NRG is in the process of divesting itself of GenOn, the company that ran the plants before NRG acquired them in 2012. GenOn filed for bankruptcy last year, and Gaier said NRG intends to turn the subsidiary over to its creditors as early as June.