Technology-based standards

• Author: Jeffrey G. Miller/Ann Powers/Nancy Long Elder/Karl S. Coplan
• Pages: 321-405

321

CHAPTER VI:

TECHNOLOGY-BASED STANDARDS

A. THE TECHNOLOGYBASED APPROACH

Prior to 1972, water pollution control limitations were e stablished for

individual polluters based on the reductions required in t heir pollution to

achieve water qua lity standards. As described in Chapter V, this approach

was u nsuccessful for a variety of reasons, including the diculty of estab-

lishing individual limitations on that basis. Most participants in the congres-

sional debates on how to reform water pollution control regulation agreed

that fundamental changes were required in the regulatory approach. Nev-

ertheless, for the most part, the U.S. House of Representatives preferred to

proceed with a state-driven water quality-based system, while the U.S. Senate

preferred to switch to a federa lly driven technology-based system. e com-

promise solution was to use both systems.

Proponents of the technology-based system viewed that system as superior

for several reasons. It established a uniform national base for all members of

the same industry, providing industry a “level playing eld” and eliminating

most of the “pollution haven” problems that had plagued earlier pollution

control eorts based on water quality standards alone. It promised easier

implementation, with the U.S. Environmental Protection Agency (EPA)

establishing treatment requirements at one time for each industrial category,

rather than requiring 50 states to establish standards one at a time for every

industrial facility. Easier implementation promised less costly and quicker

implementation. e gradation in pollution removal achieved by dierent

control systems also suggested a phased process. Industry would be required

rst to install basic controls, then subsequently install advanced controls,

providing progressively better pollution control and spreading the cost of

controls over two phases.

Opponents of the technology-based system saw it as “treatment for t reat-

ment’s sake,” and an economic wa ste to require expenditures for pollution

control that were not needed to achieve desired water quality. In their opin-

ion, it reected a view that any pollution was immoral and should be stopped

regardless of the cost. In all probability, there are instances in which the

technology-based sta ndards have resulted in treatment not really needed to

322 Water Pollution Control, 2d Edition

achieve clean water and some of the proponents of the system view pollution

as immoral.  is la rgely misses t he point of most advocates of the system.

As a system it is a profoundly pragmatic one. Rat her than endlessly debat-

ing interesting questions of how clean water should be and how much of the

burden of clea n water each source could justly be asked to bear, it requires

everyone to ta ke practical measures to achieve clean water. It ask s no one

to do the impossible, but only what is demonstrated as technically and eco-

nomically possible.

Even though both the water quality-based and the technology-based

systems were adopted in the 1972 legislation, the technology-based system

dominated water pollution control for the rst two decades. It proved to

be a practical system t hat was relatively easily administered and provided

demonstrable and sometimes dra matic improvements in water quality.

Almost by denition, however, it is a system of limited possibilities. Once

the progressively more stringent levels of pollution control technology have

been accomplished, there a re no more technology-based controls to apply.

is leaves water qua lity standards as the only means of attaining f urther

progress toward clean water. Water quality standards can be used to ext ract

the last ounce of pollution control from industrial sources, demand more

of relatively unregulated municipal sources, and perhaps address the almost

entirely unregulated nonpoint sources.

us, technology-based standards are not on today’s cutting edge of water

pollution control. ey are still, however, the basis on which most point

sources are regulated, including new sources. Technology-based sta ndards

could again become a driving force for pollution control under the Clean

Water Act (CWA), if the present renaissance of water quality standards forces

the development of better technologies for impaired waters. New technologies

could become the basis for upgrading the best available technology (BAT).

Technology-based standards could also serve as a model for setting standards

for nonpoint sources. e success of the technology-based standards has pro-

vided a model that is used in other areas. Notable exa mples include many of

the Resource Conservation and Recovery Act (RCRA) sta ndards for hazard-

ous waste treatment, storage, and disposal facilities, as well as the Clean A ir

Act (CA A) toxic pollutant standards. us, the issues posed in developing

technology-based standards are common issues found in pollution control.

To implement the technology-based strategy, EPA develops and promul-

gates technology-based standa rds, commonly called euent guidelines,

pursuant to §§301 and 304 of the CWA. EPA promulgates a separate eu-

Technology-Based Standards 323

ent guideline for each industrial category, e.g., the pulp and paper industry.

Within each industr y, it may promulgate dierent guidelines for subcatego -

ries, e.g., corrugated cardboard mills a nd tissue mills. To develop an euent

guideline, EPA studies the eectiveness of dierent treatment technologies

used by the industry or available to it, as well as the costs of the technologies.

When EPA selects a particular technology on which to base a guideline,

it does not mandate the use of that technology by everyone in the indus-

try. Instead, it establishes a standard of the pollution control performance

achieved by that technology. en the a ected industrial facilities are free

to achieve that performance standard in whatever way they choose, either by

applying the model technology or by developing a dierent way of achieving

the same results. Such performance-based standards encourage technologi-

cal development by allowing industry to develop cheaper and more ecient

approaches to attain the required standards.

e process for developing a guideline begins with a comprehensive study

of the subject industry: the raw materials it uses; the industrial processes it

uses to turn t he raw materials into the products it sells; the composition of

the euent it produces; the technologies it uses to treat the euents, their

eciencies and costs; and the economic and competitive proles of the indus-

try. To accomplish these studies, EPA usually hires a contractor and sends

a series of survey s to industrial facilities mak ing information requests u nder

the authority of §308 of the CWA. EPA will publish the resulting informa-

tion in a “development document” or series of development documents. EPA

then proposes a standard in the Federal Register, together with a preamble

explaining the technical and legal justication for the standard. Interested

parties will then comment during the comment period. en EPA will pro-

mulgate the nal standard in the Federal Register, again with a preamble, but

this time responding to the comments on the proposed standard, explaining

any changes between the proposed a nd nal standard, and explaining the

justication for t hem. e resulting euent guidelines are published in the

Code of Federal Regulations, beginning at 40 C.F.R. pt. 400.

Euent guidelines are not static. CWA §301(d) requires EPA to review

each guideline at least once ever y ve years to determ ine whether it still

meets the statutor y criteria or must be made more stringent to reect

newly available tec hnologie s or lowered t reatment cost s. In August 2005,

EPA proposed a new plan for the re view of g uidelines. Instead of e val-

uating all industries’ euent limitat ions, EPA would select ively review

industr ial sectors ba sed on their environmental risk. Notice of Avai labil-