Discharge (NPDES) Permits

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

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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
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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.
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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?
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Technology-based Standards Industrial Dischargers
CONVEN. NON-CONV. TOXIC SOURCE POLL. POLL. POL
L. EXISTING BCT/BPT BAT BAT NEW BAT BAT BAT
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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?
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Wilkey dissent, CBE v. Gorsuch (D.C.
Cir.) Courts 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.
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Wilkey dissent, continued Any 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."
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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).
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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?

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

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• 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?