Discharge (NPDES) Permits Who must get them ? Industrial dischargers CAFOs POTWs

1. Discharge (NPDES) Permits • Who must get them? • Industrial dischargers • CAFOs • POTWs • Permit limits (general or individual permits): • Technology based effluent limits • WQ based limits

2. Selected Industrial Categories: Initial list pulp and paper mills meat processing dairy product processing grain mills sugar processing textile mills cement manufacturing feedlots electroplating timber products processing plastic and synthetic materials soap and detergent mfgfertilizer manufacturing petroleum refining iron and steel manufacturing nonferrous metals mfg phosphate manufacturing steam electric powerplants ferroalloy manufacturing leather tanning and finishing glass and asbestos manufacturing rubber processing canned and preserved fruits and vegetables processing canned and preserved seafood processing organic chemicals inorganic chemicals mfg

3. Technology-based Standards: History 1972-74: 65,000+ applications for NPDES permits received 1973: EPA misses deadline for promulgation of 27 “categorical standards”; plans to promulgate standards by 1976; NRDC sues; Court orders promulgation by end of 1974 (NRDC v. Train). Mid-1970s: EPA issues uniform categorical standards establishing limits (BAT, BCT, BPT) for industrial categories. 1977: Court upholds rules, denies argument that CWA requires individually-determined limits (DuPont v. Train). Rules take effect.

4. Technology-based Standards: History, continued 1978: Standards upheld against challenge that EPA erred by failing to establish rules under which the quality of the receiving waters are to be considered in setting permit limits (Weyerhauser v. Costle). 1980: Supreme Court affirmed that firms must comply with standards even if doing so puts them out of business (EPA v. National Crushed Stone). Are uniform categorical standards established through federal regulations (rulemakings) better or worse than individual limits determined by permit writers?

5. Technology-based Standards Industrial Dischargers CONVEN. NON-CONV. TOXIC SOURCE POLL. POLL. POLL. EXISTING BCT/BPT BAT BAT NEW BAT BAT BAT

6. Technology-based Toxics Standards Section 307: establish a list of toxics and standards for controlling them within 90 days of passage of 1972 Act. Flannery Decision:NRDC had sued the agency seeking an order compelling the agency to establish the list of toxic pollutants regulated by CWA Section 307. The District Court (D.C., Judge Flannery) decree committed the agency to promulgate new regulations addressing sixty-five specific pollutants in twenty-one industries. What, if anything, is wrong with that?

7. Wilkey dissent, CBE v. Gorsuch (D.C. Cir.) [C]ourts cannot invade the jurisdiction of the other departments of government in matters of policy, and for a court to substitute its judgment or discretion for that of a member of the executive branch would amount to such an invasion. The consent decree at issue here cannot be reconciled with this principle. … The consent decree constrains the agency in two basic ways. It requires the agency to apply criteria and standards not found in the Clean Water Act, and it requires the agency to undertake programs that are not required by the statute.

8. Wilkey dissent, continued … • [A]ny legitimate purpose served by the decree could have been accomplished by other means. The agency did not need a consent decree in order to take the actions mandated by the decree. … Nor did the agency need a consent decree to lend some stability to its position. The agency could have, by undertaking proper notice and comment rulemaking, issued the substance of the consent decree as regulations. Such • a course of action would give all parties affected by the proposed programs a chance to be heard, as well as bind the agency not to change course "arbitrarily • and capriciously."

9. Waivers/Exemptions:CMA v. NRDC (1985) Early 1970s: EPA has established its FDF variance program. What are FDF variances? 1977 amendments: Sec. 301(l) prohibited modification of requirements applicable to toxic pollutants. 3d Circuit held that FDF variances could not be granted for discharges of toxics into POTWs, citing 301(l).

10. Waivers/Exemptions:CMA v. NRDC (1985) USSC reaches opposite conclusion, that 301(l) is not intended to bar granting FDF variances from toxics requirements. Why? • Infers no Congressional intent to do so. • FDF remedies a problem with the categorical standard system – cases of “bad fit.” • Does Congress’ delegation of authority to make rules under the CWA imply the authority to grant waivers to those rules, in your view?

11. NPDES: POTW Standards • Secondary Treatment obligation • Domestic Sewage Exclusion • Prohibition against Pass-Through and Interference • Pretreatment standards • Obligation to establish pretreatment program

12. Other Aspects of NPDES Permitting • Discharge Monitoring Reports (DMRs) • General Permits – Variety • BPJ limits – nonpoint sources, CSOs • States can impose more stringent requirements • Eliminate POTW defenses • Stringent WQ standards • Permit Trading • Progress?