New BAT Standards: Lowering the Ceiling or Raising the Floor?

Phillip D. Reed

With this issue we inaugurate a new feature: ELR Dialogue. In this section each month, ELR editors and readers will present short, substantive discussions of current issues in environmental law. Dialogue is intended to be a vehicle for the easy sharing of ideas with our subscribers. ELR invites submission of materials analyzing or commenting on developments in the law, and in particular solicits responses to Articles, Comments, and Dialogue pieces we have published. Submissions should be 500-750 words in length, typed double-spaced. We hope you will communicate with us and the diverse, nationwide readership of the Reporter through ELR Dialogue.

— The Editors

[13 ELR 10002]

Over the last several months, under pressureof court-ordered deadlines, the Environmental Protection Agency (EPA) has been promulgating long overdue Clean Water Act best available technology (BAT) standards for toxic pollutants. In the final BAT effluent limitations guide-lines BAT often is the same as the best practicable technology (BPT). Where the new BAT is more stringent than BPT, the difference is relatively small and potentially more effective technologies were rejected. On the other hand, some BPT standards in the new rules are based on control technologies too advanced to have been considered "practicable" in 1972. It can be argued that EPA has coupled relatively tough BPT with relatively lenient BAT.

The new BAT rules raise several questions. Answering those questions requires detailed familiarity with the technological and economic data and analysis in the development documents used by EPA in setting the standards; as well as careful weighing of ambiguous statutory language, lengthy legislative history, and a variety of relevant, but not dispositive precedent. Final answers (mercifully) may be left to others, but a review of the Federal Register notices suggests that two questions should be addressed:

By setting BAT at or near BPT, has EPA departed from the basic technology-forcing mandate spelled out by Congress in 1972 and applied unchanged to toxic pollutants in 1977; and

If the new rules seem to depart from established authority on BAT, does that authority address the issues as EPA faces them today?

The New BAT Rules

The new BAT standards appear to be technology-nudging rather than technology-forcing. In five-and-one-half of ten recently promulgated BAT rules — the petroleum refining, ore mining, coal mining, leather tanning, and textile mills categories, and fourteen subcategories of the metal molding category — BAT equals BPT. For the metal molding group BPT had been zero discharge; for the others EPA rejected controls that would have further reduced wastewater discharges. Where controls beyond BPT were required (e.g., coil coating and porcelain enameling), they tend to be inexpensive measures such as flow reduction. Six of the final rules are less stringent than BAT proposed (in some instances in haste in January of 1981) by the Carter Administration.

The recent Federal Register notices indicate that in identifying BAT, EPA emphasized three factors. First, added controls should produce significant reductions in toxics beyond those produced by BPT. The alternative technologies EPA rejected reportedly would have removed only small additional quantities of toxic pollutants. Second, the costs must not be too high. EPA rejected a number of technologies as too costly. Third, the technologies chosen should have been demonstrated in the industry itself so their effectiveness in practice would be relatively certain. In most of the rules EPA defined BAT as "in general, the best existing performance of technology in the industrial subcategory or category."

[13 ELR 10003]

Legal Problems?

Sections 301 and 304 of the Clean Water Act provide lengthy, but rather imprecise criteria to be applied by EPA in setting effluent limitations guidelines. The 1972 Act set three levels of discharge controls: BPT, to be achieved by 1977; BAT, to be achieved by 1983; and a goal of zero discharge by 1985. Setting the standards requires a complex analysis of the feasibility and effectiveness of alternative pollution controls and an assessment of their economic impact on the industry. EPA has substantial discretion in setting the standards, but a decade of court interpretation has given the BPT and BAT standards fairly clear legal borders.

EPA may have crossed those boundaries in three places. First, BAT is to be set on the basis of demonstrated technologies, but EPA may have defined "demonstrated" too narrowly. Most of the new standards state that in general, BAT is the best control technology in the industry. Yet the legislative history indicates that Congress intended the best performance of the industry to be the low end of the range of technologies examined and that controls from other industries or pilot projects had to be considered (see, e.g., the statement of Senator Muskie in the Congressional Research Service legislative history at 169-70).Thus, EPA appears to have translated what Congress intended as the minimum into the norm. If the full record of the rulemakings indicates that EPA had a strong presumption in favor of controls already in use in the industry, that would seem contrary to the statutory directive.

Second, a number of preambles indicate that EPA rejected certain candidate technologies because they were too costly, or too costly in relation to the effluent reduction benefits to be achieved. Rarely is there any discussion of the economic impact of the rejected controls on industry, yet it is "economic achievability" that limits the forcing of technology under BAT. Moreover, it is clear that costs are not to be balanced against effluent reduction benefits in setting BAT (see, e.g., EPA v. National Crushed Stone Association, 10 ELR 20924, 20926 (U.S. 1980)). Perhaps the statement in § 301 that BAT must produce "reasonable further progress" toward zero discharge injects a reasonableness factor into BAT which would support some cost/effluent-reduction-benefit balancing, but that is not clear. The problem may simply be that the necessarily abbreviated description of the cost analysis in the Federal Register is somewhat misleading, which translates this problem from a legal one into a practical one for reviewers of EPA's decisionmaking.

Finally, the new standards may be legally deficient simply because they set BAT equal to BPT. The Act has repeatedly been interpreted to set BPT as the general minimum level of control, the floor below which no industrial plant's pollution abatement efforts may fall, and BAT as a further step toward (if not all the way to) zero discharge. As the Supreme Court stated in National Crushed Stone Association, § 301 of the Act "provides for the implementation of increasingly stringent effluent limitations in two steps" (10 ELR at 20926). And the statute itselt mandates that BAT accomplish reasonable further progress toward zero discharge. Arguably, to set BAT equal to BPT, EPA would have had to find that no further effluent reduction was reasonable or economically achievable. Where it can demonstrate that BPT is now significantly tougher than it was or would have been in the mid-1970s, EPA will be in a stronger position to make these arguments, but this would not seem to justify rejection of an achievable additional control.

Within EPA's Discretion?

Even if EPA deviated from the law on BAT as it had been applied, it may have acted within its discretion in response to changed circumstances. The best performance in an industry in 1982 is likely to be substantially superior to that in 1972. Many BPT standards were promulgatedrelatively recently and appear to be superior to what would have been considered practicable in 1972. Thus, the context of EPA's recent rulemaking is very different from that in which Congress originally addressed the issue and statements of legislative intent made over a decade ago before industry invested billions in pollution control are less persuasive. Add these considerations to the fact that toxics control is subject to far greater scientific uncertainty than EPA faced in regulating conventional pollutants, and an argument can be made that EPA is acting reasonably in applying somewhat outdated law. Given the willingness of the courts and Congress to follow EPA's lead (which in turn resulted from environmental group litigation) in adapting the toxics provisions of the Clean Water Act to the practical limitations of the Agency's regulatory capabilities, it is by no means certain that a court would overturn the BAT rules.

However, an appeal to deference to its expertise may not automatically win the day. EPA seems to have changed the established BAT equation and the courts seem inclined to keep EPA on a tighter rein when it reverses past policy.

What Next?

If the legal arguments in support of the new BAT are not convincing, it still may avoid court challenges for practical reasons. Environmental groups might accept weak BAT because the amount of pollution at issue appears to be small and the BPT standards are relatively stringent. Industry, on the other hand, might accept tough BPT rules to avoid the high costs and operating headaches of advanced BAT technologies.

Because the incentives to litigate the new rules seem limited and Congress is in the middle of the Clean Water Act reauthorization process, the fate of the new BAT rules seems most likely to be decided in Congress. What will be the effect of the new BAT rules on the reauthorization debate? Segments of industry lobbied intensely for a BAT waiver provision in the last Congress. If upheld, the new standards would obviate the need for waivers, but uncertainty over their legal viability may keep this debate open. And whether Congress will endorse EPA's rules may turn on whether it can be convinced that EPA has raised the floor far enough that what happens to the ceiling does not matter.