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Federal Register / Vol. 86, No. 50 / Wednesday, March 17, 2021 / Proposed Rules
chromium; toxic organic pollutants such as benzene, benzo-a-pyrene, phenol, and naphthalene, as outlined in CWA
Section 307a, 33 U.S.C. 1317a; 40
CFR 401.15 and 40 CFR part 423, appendix A; and 3 nonconventional pollutants, which are those pollutants that are not categorized as conventional or toxic e.g., ammonia-N, phosphorus, and total dissolved solids TDS. PFAS
compounds fall into the category of nonconventional pollutant, as they are not defined as a toxic or conventional pollutant in the CWA or the Code of Federal Regulations CFR.
B. Effluent Guidelines Program EPA establishes ELGs based on the performance of well-designed and welloperated control and treatment technologies. EPA is not to base technology-based requirements on their effects on the receiving water. See Weyerhaeuser Co. v. Costle, 599 F.2d 1011, 1028, 1042 D.C. Cir. 1978.
There are four levels of technologybased controls applicable to direct dischargers and two levels of controls applicable to indirect dischargers. These are described in detail below as general background information:

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1. Best Practicable Control Technology Currently Available BPT
Consistent with the CWA, EPA
establishes effluent limitations based on BPT by reference to the average of the best performances of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics. EPA promulgates BPT
effluent limitations for conventional, toxic, and nonconventional pollutants.
In specifying BPT, EPA looks at a number of factors. EPA first considers the cost of achieving effluent reductions in relation to the effluent reduction benefits. The Agency also considers the age of equipment and facilities, the processes employed, engineering aspects of the control technologies, any required process changes, non-water quality environmental impacts including energy requirements, and such other factors as the Administrator deems appropriate. See CWA Section 304b1B, 33 U.S.C. 1314b1B.
2. Best Conventional Pollutant Control Technology BCT
The 1977 amendments to the CWA
require EPA to identify additional levels of effluent reduction for conventional pollutants associated with Best Conventional Pollutant Control Technology BCT for discharges from existing industrial point sources. In addition to other factors specified in Section 304b4B, 33 U.S.C.

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1314b4B, the CWA requires that EPA establish BCT limitations after consideration of a two-part cost reasonableness test. EPA explained its methodology for the development of BCT limitations on July 9, 1986 51 FR
24974. Section 304a4 designates the following as conventional pollutants:
BOD5, TSS, fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional. The Administrator designated oil and grease as a conventional pollutant on July 30, 1979 44 FR 44501; 40 CFR 401.16.
3. Best Available Technology Economically Achievable BAT
BAT represents the second level of control for direct discharges of toxic and nonconventional pollutants. As the statutory phrase intends, EPA considers technological availability and the economic achievability in determining what level of control represents BAT.
CWA Section 301b2A, 33 U.S.C.
1311b2A. Other statutory factors that EPA must consider in assessing BAT are the cost of achieving BAT
effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, non-water quality environmental impacts including energy requirements, and such other factors as the Administrator deems appropriate. CWA Section 304b2B, 33 U.S.C. 1314b2B; Texas Oil & Gas Assn v. EPA, 161 F.3d 923, 928 5th Cir.
1998. The Agency retains considerable discretion in assigning the weight to be accorded each of these factors.
Weyerhaeuser Co., 590 F.2d at 1045.
Generally, EPA determines economic achievability based on the effect of the cost of compliance with BAT limitations on overall industry and subcategory if applicable financial conditions. BAT is intended to reflect the highest performance in the industry, and it may reflect a higher level of performance than is currently being achieved based on technology transferred from a different subcategory or category, bench scale or pilot studies, or foreign facilities. Am. Paper Inst. v. Train, 543
F.2d 328, 353 D.C. Cir. 1976; Am.
Frozen Food Inst. v. Train, 539 F.2d 107, 132 D.C. Cir. 1976. BAT may be based upon process changes or internal controls, even when these technologies are not common industry practice. See Am. Frozen Food Inst., 539 F.2d at 132, 140; Reynolds Metals Co. v. EPA, 760
F.2d 549, 562 4th Cir. 1985; Cal. &
Hawaiian Sugar Co. v. EPA, 553 F.2d 280, 28588 2nd Cir. 1977.
One way that EPA may consider differences within an industry when establishing BAT limitations is through
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subcategorization. The Supreme Court has recognized that the substantive test for subcategorizing an industry is the same as that which applies to establishing fundamentally different factor variancesi.e., whether the plants are different with respect to relevant statutory factors. See Chem.
Mfrs. Assn v. EPA, 870 F.2d 177, 214
n.134 5th Cir. 1989 citing Chem. Mfrs.
Assn v. NRDC, 470 U.S. 116, 11922, 12934 1985. Courts have stated that there need only be a rough basis for subcategorization. See Chem. Mfrs.
Assn, 870 F.2d at 215 n.137
summarizing cases.
4. Best Available Demonstrated Control Technology/New Source Performance Standards NSPS
NSPS reflect the greatest degree of effluent reduction that is achievable based on the best available demonstrated control technology BADCT, including, where practicable, a standard permitting no discharge of pollutants. CWA Section 306a1, 33 U.S.C. 1316a1. Owners of new facilities have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS generally represent the most stringent controls attainable through the application of BADCT for all pollutants that is, conventional, nonconventional, and toxic pollutants. In establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements. CWA Section 306b1B, 33 U.S.C. 1316b1B.
5. Pretreatment Standards for Existing Sources PSES
Section 307b of the CWA, 33 U.S.C.
1317b, authorizes EPA to promulgate pretreatment standards for discharges of pollutants to POTWs. PSES are designed to prevent the discharge of pollutants that pass through, interfere with, or otherwise are incompatible with the operation of POTWs. Categorical pretreatment standards are technologybased and are analogous to BPT and BAT effluent limitations guidelines, and thus the Agency typically considers the same factors in promulgating PSES as it considers in promulgating BPT and BAT. The General Pretreatment Regulations, which set forth the framework for the implementation of categorical pretreatment standards, are found at 40 CFR part 403. These regulations establish pretreatment standards that apply to all non-domestic dischargers. See 52 FR 1586 January 14, 1987.

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