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American Petroleum Inst. v. EPA

Citation: 19 ELR 20317
No. No. 87-4835, 858 F.2d 261/28 ERC 1529/(5th Cir., 10/26/1988, 01/26/1989) Regulations upheld after remand

The court holds that the Environmental Protection Agency (EPA) has adequately supported its Federal Water Pollution Control Act (FWPCA) regulations that effectively require oil companies that drill offshore in Alaskan waters to use mineral oil instead of diesel oil as a drilling additive to lubricant mud. In a footnote, the court holds that EPA properly designated diesel oil as an indicator pollutant, which is defined as a carrier of toxic pollutants. EPA therefore was authorized to impose the more stringent best available technology economically achievable (BAT) on diesel oil emissions rather than the best conventional pollutant technology (BCT). Whether diesel oil is characterized as a conventional or nonconventional pollutant is irrelevant to EPA's decision to designate it as an indicator pollutant. The court holds that EPA sufficiently supported its decision that product substitution is the appropriate method of BAT-level control for diesel oil. A technology need not be widely used in the industry or operationally equivalent before EPA may require substitution. Substitution need only be "technologically and economically achievable" pursuant to FWPCA § 301(b)(2)(A). A process can be considered available under the FWPCA even if is not in use at all, since Congress intended to encourage new pollution control technology. The court holds that EPA may impose BAT limitations even where the discharge causes no discernible harm. Neither Congress nor EPA has recognized a de minimis exception for BAT limitations. EPA has adequately considered the economic impact of the regulation; a direct cost/benefit correlation is not required.

[A related decision is published at 16 ELR 20610.]

Counsel for Petitioners
James K. Jackson, G. William Frick
American Petroleum Institute
1220 L St. NW, Washington DC 20005
(202) 682-8000

Counsel for Respondent
Ashley Doherty
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4438

David M. Gravallese
U.S. Environmental Protection Agency
401 M St. SW, Washington DC 20460
(202) 382-7700

Before GEE, DAVIS, and SMITH, Circuit Judges.