Limits and General Permits

Question 1

NRDC v. Costle

Answer 1

• DC Circuit 1977
• EPA tried to categorically exempt a bunch of discharges from stuff that did qualify point sources from 402 (argued too many sources, not manageable)
• court rules no wholesale exemption but there’s some administrative flexibility (can do general permits)

Question 2

United States v. Plaza Health Laboratories

Answer 2

• 2nd Cir 1993
• contaminated blood vials being thrown into Hudson River by hand
• underlying legal issue: can person be a point source?
• court says wouldn’t make sense with language and structure of act (some circularity) plus rule of lenity

Question 3

Technology Based Effluent Limitations

Answer 3

• covers both new and existing sources
• distinguishes between categories of pollutants
• differing degree of technology forcing
• differing role of cost consideration and cost/benefit analysis
• category and pollutant-specific availability of individual variances

Question 4

Categories of Pollutants for Tech-Based Effluent Limitations

Answer 4

• conventional
• toxic
• non-conventional, non-toxic
• dredged/fill material (Section 404)

Question 5

Why Tech-Based?

Answer 5

• was afraid water quality based would hamper EPA -> tech first, then if you’re still violating water q standards you need to do more (water quality kickers)
• CWA doesn’t require proof of negative impact, just violation of permit

Question 6

Section 304

Answer 6

• sets out the statutory factors upon which tech-based effluent limitations are determined

Question 7

BPT

Answer 7

• initial standard for existing sources - need to meet within 5 years (becomes a backstop over time)
• best practicable control technology currently available
• existing point sources required to achieve these under 301, Administrator defines them under 304

Question 8

BPT - Factors Under 304

Answer 8

• COST-BENEFIT
  304(b)
• explicitly says shall include consideration of the total cost of application of tech in relation to the effluent reduction benefits to be achieved
• also includes other factors (age of equipment + facilities involved, process employed, etc. as Admin deems appropriate
• most forgiving because it’s the initial standard

Question 9

POTW Secondary Treatment

Answer 9

• publicly owned treatment works
• 304(d)(1) - administrator sets degree of effluent reduction attainable through application of “secondary treatment”
• “secondary treatment” = tech-based reqs based on combo of physical + biological processes typical for the treatment of pollutants in municipal sewage

Question 10

BATEA

Answer 10

• final standard for existing sources
• best available technology economically achievable
• Section 304 (b)(2)(B)
• need to meet by 1989

Question 11

BATEA - Factors

Answer 11

• NO cost-benefit allowed
• degree of effluent reduction attainable through application of best control measures and practices achievable
• you DO take cost into account, but you can’t compare it to the benefits
• also other factors listed - age of equipment and facilities, process employed, etc.

Question 12

BCT

Answer 12

• best conventional pollutant control technology
• standard for existing sources that emit conventional pollutants
• Section 304(b)(4) - you DO consider cost-benefit here -> comes back in because Congress not as concerned about conventional pollutants
  -> also adds in cost comparison - industry sources on conventional pollutants get compared to publicly owned treatment works (Congress isn’t as concerned about conventional pollutants and doesn’t want industry to have to pay much more in this instance, more equitable)

Question 13

BDT

Answer 13

• standard for new sources
• “achievable through application of the best available demonstrated control technology”

Question 14

Toxic Pollutants

Answer 14

• 307
• BATEA, plus Administrator “in his discretion may publish in the Federal Register a proposed effluent standard” -> tech-based first, then Admin has discretion to add health-based
• original standard was health-based (“ample margin of safety”) but changed b/c health-based tends to be immobilizing

Question 15

Pretreatment Program

Answer 15

• Section 307 too
• when your discharge goes into a POTW before discharge into nav waters
• if it’s gonna interfere with the operation of the POTW, you need to pretreat
• if it’s gonna pass through the POTW without being treated you need to pretreat

Question 16

Comparison of Standards in Terms of Stringency

Answer 16

BPT<BCT<BAT<BDT

(in order of increasing stringency)

• note that these wind up being equal if there’s really only one tech

Question 17

Role of Costs Summary

Answer 17

• BPT - compare total cost to effluent reduction benefits
• BCT - compare control costs to POTW control costs, AND compare cost with anticipated benefits
• BAT - cost consideration (affordable by most industry)
• BDT - cost consideration (reasoned consideration)

Question 18

Variances and FDF

Answer 18

• once the broad categories are set, people try to argue for exceptions
• FDF variance - means you request a variant for factors “fundamentally different” from those considered by EPA

Question 19

Chemical Manufacturers Association v. NRDC - Question Presented

Answer 19

• Section 301(l) from the 1977 amendments says “Administrator may not modify any requirement” wrt toxic pollutants -> can you get an FDF variance if you’re emitting toxic pollutants? does that count as a modification?

Question 20

Chemical Manufacturers - Decision

Answer 20

• 1985
• SCOTUS held FDF variance not modification barred by 301(l)
• Said legislative history didn’t indicate that Congress intended to bar FDF variances – only intended to bar waivers based on economic capabilities of dischargers (301(c)) and water quality considerations (301(g))
• Distinguishes FDF variances from the cost and water quality waivers – notion is that FDF variance is designed for situation where not all relevant factors were taken into account in establishing the category (not for cost or water quality exemptions – can’t get FDF variance based on this)
• functional equivalent of further subcategorization, which is permissible
• allows EPA to categorize more quickly first then look at unique factors

Question 21

Chemical Manufacturers - Marshall Dissent

Answer 21

• Counterintuitive to allow for variances on any ground except the two – receiving water quality and economic cost – that Congress had otherwise singled out as worthy of variances (except for toxics)
• Defeats technology-forcing purpose of law to allow plant by plant subcategorization through FDF variance, rather than based on broad categories

Question 22

EPA Process for Coming Up with Tech-based Standard

Answer 22

• massive undertaking -> takes a very long time-> risk of ossification of standards