Key Features of the Clean Water Act (CWA)

1. Key Features of the Clean Water Act (CWA) Goal: The elimination of all discharges of pollutants into the navigable waters of the United States: § 101(a)(1). NPDES System: Permits under the National Permit Discharge Elimination System (NPDES) are issued pursuant to § 402 of the Act. The discharge of pollutants from point sources of water pollution is prohibited, except in compliance with such permits: § 301. New Sources: New point sources of pollution must meet technology-based standards that reflect “the greatest degree of effluent reduction … achievable through application of the best available demonstrated control technology.” § 306(a)(1). Existing Sources: Existing point sources of pollution were partially grandfathered under the Act. By 1977, existing point sources were required to meet technology based standards that reflected the “best available technology economically achievable.” (BPT) § 301(b)(1)(A). By 1983 (a deadline that was subsequently extended to 1987) existing sources were to meet a standard reflecting the “best available technology economically achievable for such category or class.” (BAT) § 301(b)(2)(B). Guidelines: The Administrator of EPA must develop and publish various kinds of technical data to provide guidance in creating the §§ 306 and 301(b)(1)(A) and (b)(2)(B) effluent standards.

2. Key Questions Facing the Du Pont Court • 1. Who is to set the § 301 effluent limitations? • 2. How do the § 301 effluent limitations relate to the § 304 guidelines? • 3. How do the § 301 effluent limitations relate to the § 402 NPDES permits? • 4. Which of the effluent standards are to be set on a category-wide basis? • 5. From which effluent standards, and in what circumstances, are variances from the standards permitted?

3. Effluent Limitations & Variances Under the CWA Yes Yes No No Yes [Du Pont v. Train] [Du Pont v. Train] [§ 301(c)] [§ 301(g)] [Du Pont v. Train] Yes Yes Yes Yes Yes [Du Pont v. Train] [§ 301(b)(2)(A)] [§ 301(c)] [§ 301(g)] [§ 301(n)] Yes Yes No No No [§ 306(b)(1)(B)] [Du Pont v. Train] [§ 301(g)] [§ 306(b)(1)]

4. CAA v. CWA Clean Air Act (1970) Clean Water Act (1972) Comments Key Driver: National Ambient Air Quality Standards Effluent Standards Whereas ambient standards constitute the principal means of controlling air quality under the CAA, effluent limitations constitute the principal means of controlling water quality under the CWA. Secondary Driver: Conversely, the establishment of emission standards (the equivalent of effluent standards under the CWA) is less important under the CAA, whereas the establishment of water quality standards (the equivalent of ambient standards under the CAA) is less important under the CWA. Emission Standards Water Quality Standards Existing Sources: The CWA does not grandfather existing sources of pollution to the same extent as the CAA. By requiring the sequential implementation of the progressively more stringent BPT standard in 1977 and BAT standard in 1983 (and subsequently 1987) the CWA is significantly more stringent on pollution from existing sources than the CAA. Broad Grandfathering Limited Grandfathering

5. CAA v. CWA: cont. Clean Air Act (1970) Clean Water Act (1972) Comments Role of Federal Gov’t: Under the CAA, the federal government sets ambient standards and emission standards for new sources, whereas the states set emission standards for existing sources. In contrast, under the CWA, the federal government sets effluent limitations, whereas water quality standards are set by the states. Effluent Standards Ambient Standards Role of States: Emission Standards Water Quality Standards Seeabove.

6. Setting Effluent Standards To what extent does EPA need to take costs into account? - Weyerhaeuser Co. v. Costle: Comparison Factors (BPT) v. Consideration Factors (BAT). - Comparison factors and cost-benefit analysis. What does it mean for technology to be adequately demonstrated? - Kennecott v. EPA; CPC International v. Train: Quality of testing undertaken by EPA v. Quality of EPA’s explanation.

7. Emissions Limitations v. Effluent Limitations • Best system of emission reduction • Maximum degree of reduction of each pollutant The more stringent of the following: • Adequately demonstrated • Case-by-case basis achievability analysis • Most stringent emission limitation which is contained in SIP of any State for such class or category of source (unless owner demonstrates not achievable) • Cost, nonair quality health and environmental impact and energy requirements taken into account • Cost, nonair quality and environmental impact and energy requirements taken into account • Or most stringent emissions limitation which is achieved in practice by such class or category of source • Best practicable control technology • Best available technology • Best available control technology • Currently available • Economically achievable • Presently demonstrated • Comparison between cost and effluent reduction benefits • Cost, age, process, engineering aspects, process changes and environmental impacts taken into account • Cost taken into account - Age, process, engineering aspects, process changes and environmental impacts taken into account

8. Variances Variances applicable to existing sources: Variances applicable to nonpoint sources: 1. § 301(c): modification of BAT standards on the basis of economic capability; 2. § 301(g): modification of BAT standards on water quality grounds; 3. FDF variances: modification to individual point sources that demonstrate characteristics that are fundamentally different form those that define the category in which the source is placed. None.

9. EPA v. National Crushed Stone • Grandfathering under the CAA and the CWA. • Should the economic capability of an individual firm be relevant to the application of FDF variances? • Economic capability v. different costs: Differences between § 301(c) variances (applicable only to BAT) and FDF variances; Meaning of “reasonable further progress” in the context of § 301(c); Differences in role played by BAT standards and BPT standards; BPT standards as a “floor.” While an FDF variance cannot be granted from BPT standards on the basis of a firm’s economic capability alone, it can be granted on the basis of a firm facing fundamentally different costs of implementation than other firms in the same category.

10. Chemical Manufacturers Assn v. NRDC • On what do the majority and dissent agree? • On what do the majority and dissent disagree? • Why is the distinction between FDF variances and categories of one point source important to the dissenting opinion? • How can the application of Chevron by the majority and the dissent be reconciled? • Both the majority and dissent agree that “modify” cannot be attributed its broadest meaning. To do so would forbid EPA amending its own standards. • Majority characterizes FDF variance as a revision of a standard pursuant to § 307 (as opposed to a modification prohibited by § 301(l)); • Dissent characterizes FDF variance as a modification for the purposes of § 301(l). • Procedural differences; • Substantive differences.