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 TECHNOLOGYBASED APPROACH
Prior to 1972, water pollution control limitations were established for
individual polluters based on the reductions required in their pollution to
achieve water quality standards. As described in Chapter V, this approach
was unsuccessful for a variety of reasons, including the diculty 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 eorts 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 dierent
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 treat-
ment’s sake,” and an economic waste to require expenditures for pollution
control that were not needed to achieve desired water quality. In their opin-
ion, it reected 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 standards 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 largely misses the point of most advocates of the system.
As a system it is a profoundly pragmatic one. Rather than endlessly debat-
ing interesting questions of how clean water should be and how much of the
burden of clean 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 that was relatively easily administered and provided
demonstrable and sometimes dra matic improvements in water quality.
Almost by denition, however, it is a system of limited possibilities. Once
the progressively more stringent levels of pollution control technology have
been accomplished, there are no more technology-based controls to apply.
is leaves water quality standards as the only means of attaining further
progress toward clean water. Water quality standards can be used to extract
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 standards
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 examples include many of
the Resource Conservation and Recovery Act (RCRA) standards 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 standards, commonly called euent guidelines,
pursuant to §§301 and 304 of the CWA. EPA promulgates a separate eu-
Technology-Based Standards 323
ent guideline for each industrial category, e.g., the pulp and paper industry.
Within each industry, it may promulgate dierent guidelines for subcatego-
ries, e.g., corrugated cardboard mills and tissue mills. To develop an euent
guideline, EPA studies the eectiveness of dierent 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 aected industrial facilities are free
to achieve that performance standard in whatever way they choose, either by
applying the model technology or by developing a dierent way of achieving
the same results. Such performance-based standards encourage technologi-
cal development by allowing industry to develop cheaper and more ecient
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 the raw materials into the products it sells; the composition of
the euent it produces; the technologies it uses to treat the euents, their
eciencies and costs; and the economic and competitive proles of the indus-
try. To accomplish these studies, EPA usually hires a contractor and sends
a series of surveys to industrial facilities making information requests under
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 justication 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 and nal standard, and explaining the
justication for them. e resulting euent guidelines are published in the
Code of Federal Regulations, beginning at 40 C.F.R. pt. 400.
Euent guidelines are not static. CWA §301(d) requires EPA to review
each guideline at least once ever y ve years to determine whether it still
meets the statutor y criteria or must be made more stringent to reect
newly available technologies or lowered treatment costs. In August 2005,
EPA proposed a new plan for the review of g uidelines. Instead of eval-
uating all industries’ euent limitations, EPA would selectively review
industrial sectors based on their environmental risk. Notice of Availabil-
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