Summary
In this challenge to EPA’s effluent limitation guidelines for steam-electric power plants, the Fifth Circuit held that the agency acted arbitrarily and capriciously under the APA by setting “best available technology” (BAT) for “legacy wastewater” as surface impoundments—the same ineffective technology from 1982—when the agency’s own record showed impoundments are ineffective and that superior technologies are available and affordable. The court also held that EPA’s decision to set BAT for “combustion residual leachate” as surface impoundments, based on leachate’s small share of overall pollution, violated the Clean Water Act’s text and structure requiring technology-forcing progress toward eliminating all pollutant discharges, thus failing Chevron step one. The court vacated those portions of the rule and remanded for reconsideration.
Topics
Practice areas
Questions Presented
- Whether the EPA's decision to set surface impoundments as the Best Available Technology (BAT) for legacy wastewater was arbitrary and capricious under the Administrative Procedure Act.
- Whether the EPA's decision to set surface impoundments as BAT for combustion residual leachate violates the Clean Water Act under Chevron step one or step two.
Holdings
- The EPA's decision to set surface impoundments as BAT for legacy wastewater was arbitrary and capricious because the agency's own rule repeatedly recognizes that impoundments are 'largely ineffective' at removing toxic pollutants, the rule rejected impoundments as BAT for five other wastestreams for the same reason, and the rule's justifications (including lack of data and commingling) are inconsistent with the record and the statutory mandate for BAT to achieve 'reasonable further progress' toward eliminating pollution.
- The leachate regulation fails Chevron step one because the EPA's justifications—the relative small size of leachate pollution and the benefits of stricter regulation of other streams—are not supported by the statutory factors in 33 U.S.C. § 1314(b)(2)(B), and the agency's conflation of BAT with BPT contravenes the statutory structure. Alternatively, the regulation fails Chevron step two because it is unreasonable to set impoundments as BAT when the EPA acknowledges they are ineffective and that available technologies like chemical precipitation are superior.
Key quotations
“The last time these guidelines were updated was during the second year of President Reagan's first term, the same year that saw the release of the first CD player, the Sony Watchman pocket television, and the Commodore 64 home computer. In other words, 1982.” (at 1001)
“The environmental petitioners’ basic complaint is that EPA set an unlawful BAT for these two categories. Whereas the BAT for the other streams adopts modern technologies, they claim the agency arbitrarily set BAT for legacy wastewater and leachate using the same archaic technology in place since 1982—namely, impoundments.” (at 1002)
“The final rule repeatedly recognizes that impoundments are 'largely ineffective' at removing toxins from wastewater.” (at 1008)
“The agency’s decision to rest on its laurels (questionable as they are) respecting leachate thus 'frustrates the policy Congress sought to implement' in the CWA, see Garcia-Carias, 697 F.3d at 271, and cannot stand.” (at 1012)
Factual background
The Clean Water Act requires the EPA to set effluent limitation guidelines based on the 'Best Available Technology Economically Available' (BAT). In 2015, the EPA updated the guidelines for steam-electric power plants, setting more stringent BAT for five of six wastestreams but for 'legacy wastewater' (wastewater generated before a compliance date) and 'combustion residual leachate' (liquid percolating through landfills or impoundments), the EPA set the same BAT as the previous BPT (Best Practicable Technology) standard from 1982—surface impoundments. The EPA acknowledged that impoundments are 'largely ineffective' at controlling toxic pollutants and that more effective technologies like chemical precipitation are available and affordable.
Procedural history
Four separate lawsuits challenging the final rule were originally brought in the Second, Fifth, Eighth, and Ninth Circuits. The cases were consolidated by the Judicial Panel on Multidistrict Litigation and randomly assigned to the Fifth Circuit. In August 2017, the court granted EPA's motion to sever and hold in abeyance the Industry Petitioners' and Water Company Petitioners' challenges. The court addresses only the Environmental Petitioners' challenges to the legacy wastewater and leachate regulations.
Remand instructions
The portions of the final rule regulating legacy wastewater and combustion residual leachate are vacated and remanded to the agency for reconsideration consistent with the opinion.