Southwestern Elec. Power Co. v. U.S. E.P.A.
920 F.3d 999
5th Cir.2019Background
- EPA revised Steam Electric ELGs in 2015 to update 1982-era standards; rule addressed six wastestreams (FGD, fly ash, bottom ash, FGMC, leachate, gasification wastewater) and a composite “legacy wastewater” category.
- The Clean Water Act requires ELGs for existing sources to be based on BAT (best available technology economically achievable), a stricter, “technology-forcing” standard than BPT.
- For five wastestreams the rule set modern BATs (chemical precipitation + biological treatment; dry handling; evaporation), but for two challenged categories—legacy wastewater (waste generated before a compliance date) and combustion residual leachate—EPA retained surface impoundments (the 1982 BPT technology) as BAT.
- Environmental groups challenged those two parts of the rule as arbitrary and contrary to the CWA; EPA and intervenors defended the choices based on alleged lack of data and the relative size of leachate discharges.
- The Fifth Circuit reviewed legacy-wastewater claims under the APA (arbitrary & capricious) and the leachate claim under Chevron; it vacated and remanded the portions of the rule setting impoundments as BAT for legacy wastewater and for leachate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPA lawfully set BAT for legacy wastewater equal to the 1982 BPT impoundment standard | EPA: BAT cannot be defaulted to BPT; record shows impoundments are ineffective and better technologies are available | EPA: lacked sufficient data on treating commingled legacy waste, so could not impose newer BATs industry-wide | Court: Vacated legacy-wastewater BAT as arbitrary and capricious; EPA’s own findings that impoundments are ineffective and availability of better tech make the selection unlawful; remanded for reconsideration |
| Whether EPA permissibly set BAT for combustion residual leachate equal to impoundments under the CWA | EPA: BAT must treat point source (leachate) and statute obliges rigorous analysis; agency failed to do so | EPA: commenters provided no usable data; leachate is a small share of total discharges so regulating other streams achieves reasonable further progress | Court: Vacated leachate BAT (failed Chevron step one and alternatively step two); rule conflated BPT and BAT, relied on factors outside statutory BAT factors, and adopted an interpretation inconsistent with statutory scheme |
| Whether EPA may rely on the relative industry-wide size of a wastestream (leachate) to justify weaker BAT for that stream | Petitioners: BAT factors apply to each point source; EPA may not offset weaker regulation of one stream by stricter regulation of others | EPA: "other factors" clause and practicalities permit considering relative contribution to overall pollution | Court: Rejected EPA’s reliance on relative-size rationale; it falls outside the statutory BAT factors and would eviscerate BAT's meaning |
| Whether EPA’s asserted lack of data justified maintaining impoundments as BAT | Petitioners: EPA had data (including admission that chemical precipitation is used elsewhere) and cannot excuse rulemaking-by-inertia | EPA: lacked data on performance of alternatives treating commingled legacy/leachate | Court: Rejected EPA’s data-excuse; agency’s own record shows impoundments’ poor performance and some plants use better tech—EPA cannot default to ineffective BPT for BAT |
Key Cases Cited
- Chevron USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (U.S. 1984) (two-step framework for review of agency statutory interpretation)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (standard for arbitrary and capricious review under the APA)
- Nat’l Crushed Stone Ass’n v. EPA, 449 U.S. 64 (U.S. 1980) (explains BAT as requiring "reasonable further progress" and relation to BPT)
- NRDC v. EPA, 822 F.2d 104 (D.C. Cir. 1987) (describing the CWA ELG scheme as "technology-forcing")
- Chemical Mfrs. Ass’n v. EPA, 870 F.2d 177 (5th Cir. 1989) (discusses BAT/BPT standards and judicial review of EPA’s technology choices)
- Am. Petroleum Inst. v. EPA, 661 F.2d 340 (5th Cir. 1981) (addressing EPA’s obligations where agency claims lack of sufficient data)