Healy Enviro Law Fall 2012.docx

I standards based on performance of the best of the

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i. Standards based on performance of the best of the best within each category. ii. Everything is a consideration factor (and cost is even less important here than with BPT). 2. BPT – best practicable technology [§304(b)(1)(B)] a. Baseline level of pollution control. b. After 1977 amendments, BPT applies to conventional pollutants [which includes Biological Oxygen Demand (BOD), total suspended solids (TSS), fecal coliform, pH, oil and grease]. c. How is BPT promulgated ? i. Comparison Factors : B/C analysis of control 1. Costs are not to be “wholly out of proportion” with benefits. ii. Consideration Factors : to be considered by EPA w/o any particular weight attached to any factor. d. ***Note: EPA standard is generally defined based on performance of the average of the best performance within the category. i. Analogous to NESHAP, MACT standard for existing sources. ii. Also, EPA can’t dictate the control tech, this is not a design standard. 3. BCT – best conventional technology [§304(b)(4)(B)] a. BCT was added as a control level more stringent than BPT for conventional pollutants. b. BCT goes beyond BPT in some circumstances. Technology is only BCT if it passes 2 different cost comparisons : i. Industry cost effectiveness test, AND ii. POTW (publicly owned treatment works) cost effectiveness test. c. Note: The BCT tests are very hard to pass and thus, BCT is rarely applied. Not much of a role in the CWA. Still existing sources… 4. BAT – best available technology [§304(b)(2)(B)] a. Originally just the ’83 standard. But after ’77 amendments, BAT ONLY applies to toxic and nonconventional pollutants . 30
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b. Compliance date was extended to ’89 in ’87 amendments. c. Toxics were regulated in 1972 with health based standards, but they failed utterly. d. Then came the Flannery Decree : said that EPA was to set BAT standards for toxics, pre-treatment standards for POTW. i. This was codified by Congress in ’77. Congress lists pollutants and says that they are regulated by BAT. ii. Impose tech based limits . e. When making BAT, EPA only has consideration factors. Thus, cost is not a constraint at all under BAT . i. All costs are consideration factors (very deferential) f. Standards are generally based on control limits attained by best performing source within each category for each toxic or nonconventional pollutant. i. Go Pollutant by pollutant to find best standard. ii. Analogous to NESHAP MACT for new sources. iv. New Source Standards [§306] 1. Quick summary: a. BAT Standard for ALL pollutants (including conventional) b. Variances are NOT permitted ( DuPont ) c. 10 year protection against more stringent standards d. Same level of stringencies to all pollutants. e. Same factors considered by EPA as for BAT – cost is NOT important. i. CPC Int’l v. Train : when making new source standards, a B/C analysis is not required. The consideration factors are the same as BAT, so they can consider cost, but don’t have to.
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  • Spring '18
  • Tragedy of the Commons, United States Environmental Protection Agency, CAIR

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