EPA must incorporate advances in pollution-control technology during NPDES permit reviews
November, 2007
In a case of first impression, the Ninth Circuit Court of Appeals held in Our Children's Earth v. EPA[i] that EPA has a mandatory duty to consider advancements in water pollution control technology in determining whether to require more stringent effluent limitations[ii] during its review of national Clean Water Act ("CWA") effluent limitation guidelines and effluent limitations contained in national pollutant discharge elimination system ("NPDES") permits.
The decision rejected EPA's "hazard-based" approach to effluent limitation guideline review and may impose increased burdens on NPDES permit holders. The time and expense of providing the information EPA needs to perform the type of technology-based review required (according to the court) under the CWA will likely fall to the dischargers – which include owners and operators of industrial operations, wastewater treatment plants, and publicly owned treatment works (POTWs) – subject to NPDES permitting. In assessing existing pollutant discharges and potential reductions through improved technology, EPA requires NPDES permit holders to respond to EPA surveys seeking the technical and economic data necessary to support EPA's review.[iii] For example, EPA's own estimate of the time required to respond to its survey of Iron and Steel Manufacturing dischargers during the initial stages of rulemaking for revising effluent limitation guidelines in 1997 was 100,000 hours.[iv]
If EPA determines as a result of the Ninth Circuit's decision that advances in water pollution control technology can achieve additional pollutant reductions, then wastewater dischargers, including municipal POTWs, could face stricter effluent limitations in subsequent NPDES permits.[v] They may also be required to make new capital expenditures to upgrade existing, or to install new, water pollution control technology.
The Clean Water Act's Technology-Based Effluent Limitations and Guidelines
The CWA was enacted to "restore and maintain the chemical, physical and biological integrity of the Nation's waters"[vi] and prohibits the discharge of a pollutant from any point source into navigable waters of the United States without a NPDES permit issued by the EPA or by a state with a federally-approved permitting system.[vii] The CWA requires that NPDES permits set forth, at the very least, effluent limitations based upon general effluent limitation guidelines that are separately promulgated by the EPA.[viii]
Section 301(d) of the CWA requires EPA to review effluent limitations every five years, and revise those limitations "if appropriate."[ix] Sections 304(b) and 304(m) require EPA to conduct an annual review of effluent limitation guidelines and revise those guidelines "if appropriate."[x] Effluent limitations, and effluent limitation guidelines, are a national, technology-based approach to water quality regulation,[xi] and "have long been understood to be determined according to the best available or practicable technology."[xii]
The guidelines reflect pollutant reductions that can be achieved by categories or subcategories of industrial point sources, using specific technologies. EPA has promulgated guidelines for 56 industrial categories and more than 450 subcategories of point sources.[xiii] The guidelines specify the maximum allowable levels of pollutants that facilities within an industrial category or subcategory may discharge.[xiv]
Once established, the guidelines are used to adopt or revise effluent limitations, which are, of course, mandatory restrictions established by EPA or a state on the amount of each pollutant a particular point source may discharge to waters of the United States.[xv] Effluent limitations are included among the key terms and conditions in NPDES permits issued to point source dischargers. Although effluent limitations are based on the performance of specific wastewater treatment technologies, the EPA does not generally require dischargers to use these technologies. Rather, a discharger may use any effective alternative technology to meet the numerical pollutant limits contained in NPDES permits.[xvi]
Both CWA § 301 and CWA § 304 contain mandatory criteria stating what the effluent limitation regulations "shall" contain, including mandatory technology-based requirements.[xvii] The CWA clearly requires that the EPA promulgate effluent limitation guidelines and effluent limitations based on technology. What is not clear from the statute is whether the EPA must take improvements in pollution-control technology into account when it is reviewing effluent limitation guidelines annually and the corresponding effluent limitations every five years. That is the issue the Ninth Circuit addressed in Our Children's Earth v. EPA.[xviii]
The Lawsuit
Our Children's Earth Foundation[xix] and the Ecological Rights Foundation[xx] (collectively, "OCE") filed suit against the EPA in late 2004, alleging that EPA violated a non-discretionary duty to assess, as part of its annual review of effluent limitation guidelines, whether more effective technology is currently available that could reduce or eliminate pollutant discharges. The Association of Metropolitan Sewerage Agencies and the Effluent Guidelines Industry Coalition (a group of industrial entities and trade associations which are owners and operators of regulated industrial facilities) (hereinafter, collectively, the "Intervenors") intervened to assist the EPA in defending the agency's "hazard-based" approach to effluent limitation guidelines review.
Under the "hazard-based" approach, EPA focuses its efforts on identifying industrial categories subject to existing guidelines whose pollutant discharges pose the greatest hazard to human health and the environment.[xxi] EPA then ranks existing categories according to the potential hazard of their discharges in order to prioritize the categories for effluent limitation guidelines review and revision.[xxii] Only those categories that EPA ranks among the top two or three most hazardous are reviewed each year using technology-based factors set out in the CWA and its implementing regulations.[xxiii]
EPA argued that the CWA conferred broad discretion on the agency in determining what factors EPA must take into account when performing annual reviews of effluent limitation guidelines. EPA contended that, while the obligation to perform an annual review is mandatory, the CWA's requirement that EPA revise its guidelines when "appropriate" leaves the implementation of the mandate to review within EPA's discretion.[xxiv] It was acting within that discretion, EPA contended, when it developed its hazard-based approach and considered factors other than the effectiveness of pollution-control technologies when determining whether to revise a particular effluent limitation guideline.[xxv]
In addition to appropriately focusing its resources on the most hazardous categories, the Intervenors pointed out that EPA's approach was a reasonable means of managing the enormous task of assessing existing pollutant discharges and potential reductions through improved technology. The Intervenors asserted that requiring EPA to apply the statutory technology criteria every year while reviewing the effluent limitation guidelines for all of the 56 industrial categories and more than 450 subcategories for which the guidelines exist would impose on EPA - and on industry, which must provide a vast amount of information to assist EPA in its review, a burden that is impossible to meet.[xxvi]
The Decision
The Ninth Circuit began its analysis by accepting EPA's assertion that its review of effluent limitations and guidelines is mandatory, while its determination whether to revise the limitations and guidelines is discretionary, as EPA deems it appropriate. Any revisions of the limitations and guidelines, however, "must be in accord with detailed statutory criteria that incorporate variants of the best-technology standard."[xxvii] The "clear purpose" of review and revision, the Ninth Circuit stated, is "to provide for continuing regulatory compliance with the statutorily-mandated and temporally changing criteria reflecting what the regulations and limitations ‘shall' accomplish."[xxviii]
Based on that "clear purpose," the Ninth Circuit rejected EPA's argument that it was acting within its discretion when it elected not to consider the technology-based factors during its annual review of effluent limitation guidelines, holding that "[t]o be sure, the ultimate decisions in the review process are discretionary "as appropriate," but the foundational standard for review— the technology approach—is not optional."[xxix] The court held that "to the extent the EPA has completely abandoned a technology-based review in favor of a hazard-based review, the Agency has breached its mandatory duties under §§ 301(d) and 304(b), (m)."[xxx] In conducting its effluent limitation guideline and effluent limitations reviews, the EPA must apply the technology-based factors specifically prescribed by the CWA.[xxxi]
Implications of the Decision
The Ninth Circuit remanded the matter to the district court for further proceedings to determine if EPA has, in fact, breached its non-discretionary duty by abandoning a technology-based review as OCE contends, or if it has adopted a technology-based approach in addition to its hazard-based approach. If the district court determines that the EPA's approach breached its duty under the CWA by failing to conduct a technology-based review and orders major changes to EPA's effluent limitation guideline review policy, the time and expense of providing the information EPA needs to perform the type of technology-based review defined by the CWA will likely fall to the owners and operators of regulated industrial and municipal operations that have that information. Regulated operations may also find themselves facing stricter effluent limitations in subsequent NPDES permits. EPA or the Intervenors could seek further relief from the Ninth Circuit by requesting that the Court reconsider the decision, seek en banc review by the full appeals court, or seek review by the Supreme Court.
For more information about this decision, please contact Connie Sue Martin.
[iii] Effluent Guidelines Industry Coalition's Reply in Support of Cross-Motion for Partial Summary Judgment (District Court Cause No. 3:04-cv-02132-PJH, Document No. 123, filed 4/25/05) at 6.
[iv] Id, citing 67 Fed. Reg. 645,453 at 54,454 (10/20/97).
[v] In its Motion to Intervene, the Effluent Guidelines Industry Coalition asserted that the relief OCE sought "would obligate Coalition members to spend significant resources to protect their current and future interests" and "may increase the regulatory compliance burden already placed on Coalition member facilities." Notice and Motion to Intervene (District Court Cause No. 3:04-cv-02132-PJH, Document No. 41, filed 12/23/04) at 6.
[vi] CWA § 101(a), 42 U.S.C. § 1251(a).
[viii] Opinion at 14226 – 14227.
[xi] Opinion at 14227, citing Senate Committee on the Environment and Public Works, 99th Cong., Report to Accompany S. 1128 (1985 CWA Amendments) 3 – 4 (Comm. Print 1985).
[xii] Opinion at 14227, citing E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 121 (1977) (explaining the technology-based character of effluent limitations and guidelines) and Waterkeeper Alliance v. EPA, 399 F.3d 486, 491.
[xv] An "effluent limitation" is "any restriction established by a State or the Administrator on quantities, rates, and concentrations of chemical, physical, biological, and other constituents which are discharged from point sources . . .including schedules of compliance." See Environmental Protection Agency v. California ex rel. State Water Resources Control Bd., 426 U.S. 200, 204, 96 S.Ct. 2022 (1976). An NPDES permit serves to transform generally applicable effluent limitations and other standards including those based on water quality into the obligations (including a timetable for compliance) of the individual discharger. CWA §§ 309 and 505, 33 U.S.C. §§ 1319 and 1365
[xxi] EPA's Memorandum in Opposition to Plaintiffs' Summary Judgment Motion and in Support of EPA's Cross-Motion for Summary Judgment (District Court Cause No. 3:04-cv-02132-PJH, Document No. 113, filed 4/1/05) ("EPA's SJ Brief") at 5.
[xxii] EPA's SJ Brief at 5.
[xxiii] Plaintiffs' Reply in Support of Motion for Summary Judgment and in Opposition to EPA's Cross-Motion for Summary Judgment (District Court Cause No. 3:04-cv-02132-PJH, Document No. 117, filed 4/15/05) ("Plaintiffs' Reply") at 1-2.
[xxiv] EPA's SJ Brief at 10.
[xxvi] Effluent Guidelines Industry Coalition's Reply in Support of EPA's Cross-Motion for Summary Judgment (District Court Cause No. 3:04-cv-02132-PJH, Document No. 123, filed 4/25/05) at 5-7.