Respondents Brief — Utility Water Water Act Group Group v. Riverkeeper, Inc. (Nos. 07-597, 07-588, 07-589)

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In the Supreme Court of the Gnited States

ENTERGY CORPORATION, PETITIONER

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

PSEG FossIL LLC, ET AL., PETITIONERS

vz.

RIVERKEEPER, INC., ET AL.

UTILITY WATER ACT GROUP, PETITIONER

Vv.

RIVERKEEPER, INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL PARTIES

AS RESPONDENTS SUPPORTING PETITIONERS

GREGORY G. GARRE

Acting Solicitor General

Counsel of Record

RONALD J. TENPAS

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

DARYL JOSEFFER

Assistant to the Solicitor

General

PATRICIA K. HIRSCH DAVID S. GUALTIERI

Acting General Counsel CYNTHIA J. MORRIS

RICHARD T. WITT JESSICA O’DONNELL

Attorney Attorneys

Environmental Protection Department of Justice

Agency Washington, D.C. 20530-0001

Washington, D.C. 20460 (202) 514-2217

~ y é /

QUESTION PRESENTED

Whether Section 316(b) of the Clean Water Act, 33

U.S.C. 1326(b), authorizes the Environmental Protection

Agency to compare costs with benefits in determining

the “best technology available for minimizing adverse

environmental impact” at cooling water intake struc-

tures.

(1)

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Pcrthe AN

TABLE OF CONTENTS

Page

ECCT AT a ET Ie, See ne 1

EEE er ey ie a ne ree een ee ee eae 2

Statutory and regulatory provisions involved .............. 2

ee ee eee eee OE Or ere eee 2

I 65) els nce eweikedeekeb bb b0 5006s bene 10

Sidecar de iehectucauee bean ekekwerbee cee cs 0s 13

The Environmental Protection Agency may consider

costs in relation to benefits in determining the best

technology available for minimizing adverse

environmental impact under Section 316(b)............ 13

A. The statutory text does not unambiguously

prohibit consideration of the relationship

between costs and benefits ..................004. 15

B. The statutory structure, context, and history

confirm that EPA may consider the relationship

between costs and benefits ..............:02-0--. 18

1. Section 316(b) cross-references provisions that

require consideration of costs, including

comparison of costs and benefits ............... 19

2. Congress conferred broad authority on EPA to

determine how best to consider costs, benefits,

and other relevant factors ..................... 22

C. The court of appeals usurped EPA’s discretion

by imposing extra-textual constraints on EPA’s

consideration of various factors ................... 26

D. There is no basis for applying an artificial

presumption against consideration of the

relationship between costs and benefits ........... 30

E. EPA’s consideration of costs and benefits in the

rulemaking at issue here fell well within its

SIE Sirhan ts ei iti Gh’ Bets inaeg Wok orn ta 35

Table of Contents—Continued: Page

1. EPA based the national performance

standards on its weighing of multiple relevant

se eee e as. eee eC ar Uhe ae eon eass soos 35

2. EPA permissibly authorized site-specific

determinations in circumstances where costs

significantly exceed benefits ................... 39

SE cdc Guu euun Gh hes Rhee ahs voneckct cea wceers 42

RR RRS Se Tao ta A SARE in, “einer Age ey ca aE SPP a la

TABLE OF AUTHORITIES

Cases:

American lron & Steel Inst. v. EPA, 526 F.2d 1027

(3d Cir. 1975), amended, 560 F.2d 589 (3d Cir.

SEERA CES Ae AT Rant MEISE eee M See eee aN 26

American Paper Inst. v. United States EPA, 660 F.2d

I So ee a aa eae baw wowed ects 20

American Textile Mfrs. Inst. v. Donovan, 452 U.S.

I So N ee aes cad acu The teus nae nA BAS On 31, 32

Appalachian Power Co. v. Train, 566 F.2d 451 (4th

CE tettb pale teehee cane ede ures ik Eee w SEK EWA 4

Barnhart v. Walton, 535 U.S. 212 (2002) ........... 27, 30

BP Exploration & Oil, Inc. v. United States EPA, 66

ee IY ID hiseec keke ceeweesccsnses 16, 39

Chemical Mfrs. Ass'n v. United States EPA, 870 F.2d

177 (5th Cir. 1989), cert. denied, 495 U.S. 910 (1990) .. 25

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837

ee eae. Ghee as eek cael 10, 15, 26, 28, 31, 34

Citizens Coal Council v. United States EPA, 447 F 3d

I ree ee ge irre ge eee 16

Cases—Continued: Paye

CPC Int'l, Inc. v. Train, 540 F.2d 1329 (8th Cir. 1976),

cert. denied, 430 U.S. 966 (1977) .............020 0%: 26

EPA v. National Crushed Stone Ass'n, 449 U.S. 64

CORD ve vidoe ncdaetecissanee eee 20, 21, 24

Gregory v. Ashcroft, 501 U.S. 452 (1991) .............. 31

Michigan v. United States EPA, 213 F.3d 663 (D.C.

Cir. 2000), cert. denied, 532 U.S. 903, and 532 U.S.

| PP Tn rr a 32, 33

Morton v. Ruiz, 415 U.S. 199 (1974) ...............26.. 27

NWF v. EPA, 286 F.3d 554 (D.C. Cir. 2002) ........... 39

Public Serv. Co. of N.H. (Seabrook Station, Units 1 &

2), In re:

No. 76-7, 1977 WL 22370 (June 10, 1977)

remanded on other grounds, 572 F.2d 872

(hat GA. BGP 6 ks vnc cuvtuncesueeeeeeesene 5, 27

No. 76-7, 1978 WL 21140 (E.P.A. Aug. 4, 1978) .... 27

Riverkeeper, Inc. v. United States EPA, 358 F.3d 174

te S RPwrerreyr reer er ee passim

Seacoast Anti-Pollution League v. Costle, 597 F.2d

SOR Chae GC: TED voi ce vccéucscacdisveuseese ee 27

Sierra Club v. United States EPA, 314 F.3d 735 (5th

CO. SD Scco'vedicnecdhse es peeae cus eae 32

Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119

| PETC T Ee ee ee 31

Texas Oil & Gas Ass'n v. United States EPA, 161

Fb GS Gat Cr. SD oo oon vc kis easuncueeeeeeees 39

Weyerhaeuser Co. v. Costle, 590 F.2d 1011 (D.C. Cir.

2 errr Se ee 39

Case—Continued: Page

Whitman v. American Trucking Ass’ns, Inc., 531

EE a 31, 32, 33

Statutes and regulations:

Clean Air Act, 42 U.S.C. 7401 et seg. ..............6065 32

ere Dass ssa aid be keneeeeeseess 33

Clean Water Act, 33 U.S.C. 1251 et seq. ...........-55.. 2

33 U.S.C. 1311(b)(1)(A) (8 301(b)C (A)... 3, 19, 25

33 U.S.C. 1311 (bMS MA) . ... eee ee ee eee 3, 20, 21, 25

ES cnc deecueuseccceeeesecses 20

hdc dapedeceseccseceueces 20

Cs re 3, 20, 24

re kien asda vecescecesences 20

33 U.S.C. 1311(g) .......... a ae a ee 21

EE ee ee 20

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Pee eee 4, 20, 24

33 U.S.C. 1316(a)(1) (§ 306(a)(1)) ..........-----. 4,21

33 U.S.C. 1816(b)(1)(B) (§ 306(b)0)(B)) .. ... 4, 21, 24, 26

33 U.S.C. 13826(b) (§ 316(b)) ... 2... .. 3, 10, 15, 16, 18, 22

eae sce wdesedecdebeesecrense 4

ee es cae pesensceeecseusne 26

td Coenen ak neces as secees 20

40 C.F.R.:

Ne tag aesbbeccesdeaceuve 18

RG 4

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Vil

Regulations—Continued: Page

SE MEE oo c.cccecacecceccectsaseeweed 40

Section 1IZb.90(aNMGNMH) .... ccc ccc ccccccees 35, 39, 41

Se I cs Gis wa Ge en ae ae eae oa 6, 36

IES ewcscincedsndsd cepeneeckanukeucene 5

Miscellaneous:

American Heritage Dictionary (4th ed. 2006) ...... 16, 17

Black's Law Dictionary (8th ed. 2004) .............5.. 17

Central Hudson Gas & Elec. Corp., In re, Op. EPA

Gen. Counsel, NPDES No. 63, 1977 WL 28250

SN NED Sh.euddbbnsndbddendcacsacsenes canes 27

Hon. Stephen Breyer, Breaking the Vicious Circle:

Toward Effective Risk Regulations (1994) ....... 14, 18

Matthew D. Adler & Eric A. Posner, Rethinking

Cost-Benefit Analysis, 109 Yale L.J. 165 (1999) ...... 31

Oxford English Dictionary (2d ed. 1989) .............. 16

Random House Dictionary of the English Language

ED ook a onc soba we Ui wenckescesucereapeunt 17

Foe Se Ber eee eee 23

41 Fed. Reg. (1976):

Ee ae ae er ed en eee To 4

Dy EE hos Oa dkvedaetiecaseweescdeceseaeenanen 41

ob BO ff a rer er a 25

G6 Fed. Rem. G5.206 G0O1) .. nn ccc cece eee eees ore

ee ee I 6. as95s ceartateeccch sceeer ieee 42

ey ey , BD 5060 6 ve Si ns cco eicewes 41, 42

ee ee. He. Se GED 6a vdewrsevesdiossincias 41, 42

VIII

Miscellaneous—Continued: Page

69 Fed. Reg. (2004):

PC ditdcuiviksxenesavoneneedesckde uke cacel 6

In the Supreme Court of the Gnited States

No. 07-588

ENTERGY CORPORATION, PETITIONER

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

No. 07-589

PSEG FossIL LLC, ET AL., PETITIONERS

Vv.

RIVERKEEPER, INC., ET AL.

No. 07-597

UTILITY WATER ACT GROUP, PETITIONER

RIVERKEEPER, INC., ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR THE FEDERAL PARTIES

AS RESPONDENTS SUPPORTING PETITIONERS

OPINION BELOW

The opinion of the court of appeals (Pet. App. la-94a)

is reported at 475 F.3d 83.'

' Citations to the Pet. App. refer to the appendix filed in No. 07-5&8a.

(1)

JURISDICTION

The judgment of the court of appeals was entered on

January 25, 2007. A petition for rehearing was denied

on July 5, 2007 (Pet. App. 95a-96a). On September 25,

2007, Justice Ginsburg extended the time within which

to file the petitions for a writ of certiorari to and inclua-

ing November 2, 2007, and the petitions were filed on

that date. The jurisdiction of this Court rests on 28

U.S.C. 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

The pertinent statutory and regulatory provisions

are set forth ‘n an appendix to this brief. App., infra,

la-24a.

STATEMENT

1. Steam eiectric power plants and other industrial

and manufacturing facilities depend upon intake struc-

tures to withdraw water from the Nation’s lakes, rivers,

and other water bodies. The withdrawn water then ab-

sorbs heat from the steam used to generate electricity.

Among the adverse environmental impacts associated

with the use of intake structures are “impingement,”

which occurs when aquatic organisms are trapped ag-

ainst the structures by the force of inflowing water, and

“entrainment,” which occurs when smaller organisms

are pulled into a facility’s cooling system. Billions of

aquatic organisms are impinged or entrained by intake

structures annually. See Pet. App. 3a.

Section 316(b) of the Clean Water Act (CWA or Act),

33 U.S.C. 1251 et seq., requires that “the location, de-

sign, construction, and capacity of cooling water intake

structures reflect the best technology available for mini-

mizing adverse environmental impact.” 33 U.S.C.

1326(b). That provision is unique among CWA provi-

sions because it addresses the intake of water, in con-

trast to other provisions that regulate the discharge of

pollutants into waters of the United States.

The CWA does not define the substantive standard

specified in Section 316(b)—“best technology available

for minimizing adverse environmental impact” (BTA).

33 U.S.C. 1326(b). Section 316(b) does, however, cross-

reference Sections 301 and 306 of the CWA by specify-

ing that standards established pursuant to those sec-

tions must require that intake structures reflect BTA,

ibid., and Sections 301 and 306, in turn, call for consid-

eration of costs.

Section 301 requires the Environmental Protection

Agency (EPA) to establish standards known as “effluent

limitations” for existing point source discharges in two

phases. In the first phase, applicable to all pollutants,

EPA must establish effluent limitations based on the

“best practicable control technology currently available”

(BPT). 33 U.S.C. 1311(b)(1)(A). In establishing BPT,

EPA must consider a number of specified factors, in-

cluding “the total cost of application of technology in

relation to the effluent reduction benefits to be achieved

from such application,” as well as “such other factors as

the Administrator deems appropriate.” 33 U.S.C.

1314(b)(1)(B).

In the second phase, EPA must establish effluent

limitations for conventional pollutants based on the

“best conventional pollution control technology” (BCT),

and for toxic pollutants based on the “best available

technology economically achievable” (BAT). 33 U.S.C.

1311(b)(2)(A), (E). In determining BCT, EPA must con-

sider, »ter alia, “the relationship between the costs of

attaining a reduction in effluents and the effluent reduc-

tion benefits derived” and “such other factors as the

Administrator deems appropriate.” 33 U.S.C.

1314(b)(4)(B). In determining BAT, EPA must consider,

inter alia, “the cost of achieving such effluent reduc-

tion” and “such other factors as the Administrator

deems appropriate.” 33 U.S.C. 1314(b)(2)(B).

Section 306 directs EPA to establish performance

standards for new sources based on the “best available

demonstrated control technology” (BADT). 33 U.S.C.

1316(a)(1). In establishing BADT, EPA “shall take into

consideration the cost of achieving such effluent reduc-

tion, and any non-water quality, environmental! impact

and energy requirements.” 33 U.S.C. 1316(b)(1)(B).

The limitations and standards promulgated under

Sections 301, 306, and 316(b) are implemented through

National Pollutant Discharge Elimination System

(NPDES) permits. Such permits are issued for terms of

up to five years, either by States with approved NPDES

programs or by EPA in States without such programs.

See 33 U.S.C. 1342; 40 C.F.R. 125.90(a).

2. a. EPA first promulgated regulations implement-

ing Section 316(b) in 1976. J.A. 38-49 (41 Fed. Reg.

17,387). In the preamble to those regulations, EPA

stated that, while Section 316(b) does not “require” the

agency to conduct a cost-benefit assessment, the agency

would consider a technology’s “economic practicality”

for individual facilities on a case-by-case basis. J.A. 42.

The Fourth Circuit remanded those regulations to

EPA for procedural reasons. Appalachian Power Co. v.

Train, 566 F.2d 451 (1977). When EPA subsequently

withdrew the remanded regulations, it directed permit-

ting authorities to use their best professional judgment

to determine BTA for each facility on a case-by-case

basis. See 40 C.F.R. 401.14. In 1977, EPA distributed

a draft guidance document that proposed a process for

determining BTA on a facility-specific basis. See Pet.

App. 160a-161a.

In 1977, EPA also issued a permitting decision and a

General Counsel opinion explaining that it would not be

“reasonable to interpret Section 316(b) as requiring use

of technology whose cost is wholly disproportionate to

the environmental benefit to be gained.” Jn re Pub.

Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), No.

76-7, 1977 WL 22370 (June 10, 1977), remanded on other

grounds, 572 F.2d 872 (1st Cir. 1978); accord Jn re Cen-

tral Hudson Gas & Elec. Corp., Op. EPA Gen. Counsel,

NPDES No. 63, 1977 WL 28250, at *8 (July 29, 1977).

Thus, the framework in existence for more than 30 years

has provided for permitting authorities to consider the

relationship between costs and benefits to at least that

extent in determining each facility’s BTA on a case-by-

case basis.

b. In 1995, EPA entered into a consent decree estab-

lishing deadlines for proposing and taking final action on

regulations implementing Section 316(b). That consent

decree was later amended to provide for three “phases”

of rulemaking addressing different categories of facili-

ties. See Pet. App. 6a.

EPA published a Phase I rule in 2001 66 Fed. Reg.

65,256. That rule governs new facilities that meet cer-

tain threshold specifications, and it provides that closed-

cycle recirculating cooling systems (which reuse with-

drawn water) reflect 5TA for such facilities. /d. at

65,270-65,271. The Second Circuit largely upheld the

Phase I rule. Riverkeeper, Inc. v. United States EPA,

258 F.3d 174, 181 (2004) (Riverkeeper /). The Phase I]

rule, which is at issue here, establishes requirements for

intake structures at existing large power plants that

meet certain criteria. Pet. App. 122a-593a (69 Fed. Reg.

41,576 (2004)). The Phase III Rule establishes require-

ments for new offshore and coastal oil and gas facilities,

existing manufacturing and industrial facilities, and

smaller power plants. 71 Fed. Reg. 35,006 (2006). That

rule is under review in the Fifth Circuit, which stayed

its proceedings pending this Court’s disposition of this

case. ConocoPhillips Co. v. EPA, No. 06-60662 (filed

July 14, 2006).

c. Inthe Phase II rule at issue here, EPA selected

a combination of technologies to reflect BTA for existing

large power plants. Pet. App. 224a-225a. Those technol-

ogies include, am«ng others, relocation of intakes, fine

mesh passive screens, double-entry single-exit traveling

screens, velocity caps, larger intakes to decrease intake

velocity, and barrier nets. See id. at 228a. EPA se-

lected those technologies based on the various options’

“overall efficacy, availability, economic practicability,

including economic impact and the relationship of costs

with benefits, 2nd non-water quality environmental im-

pacts, including energy impacts.” /d. at 253a.

Based on the chosen technologies, EPA established

national performance standards for reducing impinge-

ment mortality (by 80%-95%) and entrainment (by 60%-

90%). 40 C.F.R. 125.94(b). EPA did not, however, re-

quire the use of any specific technology, because it

wanted to “provide[] a high degree of flexibility for ex-

isting facilities to select the most effective and efficient

approach and technologies for minimizing adverse envi-

ronmental impact associated with their cooling water

intake structures.” Pet. App. 226a.

EPA considered treating closed cycle recirculating

cooling systems, which it had determined to be BTA for

(new) Phase I facilities, as BTA for (existing) Phase II

facilities. See Pet. App. 254a-26la. EPA rejected that

alternative, however, because of its “generally high costs

(due to conversions), the fact that other technologies

approach the performance of this option, concerns for

energy impacts due to retrofitting existing facilities, and

other considerations.” /d. at 255a. EPA explained that:

the cost of closed-cycle recirculating cooling towers for

existing Phase II facilities was many times higher than

for new Phase I facilities because of the need to retrofit

facilities that had not been designed to use closed-cycle

towers; such cooling towers were less energy efficient

than EPA’s chosen alternatives; and, “{aJlthough not

identical, the ranges of impingement and entrainment

reduction are similar” under EPA’s chosen option and

the closed-cycle alternative. /d. at 255a-261a; see id. at

368a-369a.

The rule also allows a facility to request a variance

resulting in a site-specific BTA determination if the fa-

cility demonstrates that its cost of complying with the

national performance standards is significantly greater

than the environmental benefits. 40 C.F.R. 125.94(a)(5).

EPA provided that flexibility because its “comparison of

national costs to nationai benefits” underlying the na-

_tionwide performance standards “may not be applicable

to a specific site due to variations in (1) the performance

of intake technologies and (2) characteristics of the

waterbody in which the intake(s) are sited.” Pet. App.

250a.

3. After several parties petitioned for review, the

petitions were consolidated in the Second Circuit. See

Pet. App. la-94a. The court of appeals recognized that

“Section 316(b) does not itself set forth * * * the spe-

cific factors that the EPA must consider in determining

BTA.” /d. at 20a. Because Section 316(b) cross-refer-

ences Sections 301 and 306, however, the court looked to

the factors that EPA must consider in implementing

various standards under those sections. /d. at 20a-23a.

While those standards treat costs in different ways, and

two of them specifically require a comparison of costs

and benefits, the court concluded that Congress had

manifested a clear intent in those other provisions “to

move cost considerations under the CWA from a cost-

benefit analysis to a cost-effectiveness one.” /d. at 22a.

The court further asserted that, if Congress had in-

tended to permit a comparison of costs and benefits un-

der Section 316(b), it would have said so expressly in the

statute. Jd. at 25a.

The court of appeals then held that EPA may not

engage in cost-benefit analysis, but instead “may per-

missibly consider cost in two ways: (1) to determine

what technology can be ‘reasonably borne’ by the indus-

try and (2) to engage in cost-effectiveness analysis.”

Pet. App. 26a. After consulting the definition of “cost-

effectiveness” found in an Office of Management and

Budget (OMB) circular that does not purport to imple-

ment the CWA, the court explained that, in its view, per-

missible cost-effectiveness review is limited to choosing

“a less expensive technology that achieves essentially

the same results” as the best technology that industry

can reasonably bear. /d. at 23a n.10, 26a-28a. “For ex-

ample, assuming the EPA has determined that power

plants governed by the Phase II Rule can reasonably

bear the price of technology that saves between 100-105

fish, the EPA, given a choice between a technology that

costs $100 to save 99-101 fish and one that costs $150 to

save 100-103 fish * * *, could appropriately choose the

cheaper technology on cost-effectiveness grounds.” /d.

at 26a-27a. Thus, the court concluded, “the specified

level of benefit is * * * a narrowly bounded range,

within which the EPA may permissibly choose between

two (or more) technologies that produce essentially the

same benefits but have markedly different costs.” Jd. at

28a. ,

The court of appeals then remanded to EPA because,

in the court’s view, “it is unclear whether the Agency

improperly weighed the benefits and the costs of requir-

ing closed-cycle cooling.” Pet. App. 32a-33a. Based on

its cost-benefit holding, the court also invalidated a pro-

vision of the Phase II rule that authorizes site-specific

variances for facilities where costs of compliance with

the nationwide performance standards would signifi-

cantly exceed the environmental benefits. /d. at 56a-

60a. On the same basis, the court rejected an industry

petitioner’s contention that the rule’s costs impermis-

sibly exceed its benefits. Jd. at 27a n.13. While the

court upheld EPA’s authority to express BTA as a

range, it also concluded that the agency must “require

facilities to choose the technology that permits them to

achieve as much reduction of adverse environmental

impacts as is technologically possible,” and the court

directed EPA to reconsider its chosen ranges under that

standard on remand. /d. at 43a-44a.

The court of appeals addressed a number of other

challenges to the rule as well. For example, the court

held that EPA had not provided sufficient public notice

concerning a provision that authorizes the operator of a

facility to apply for a site-specific BTA determination in

circumstances where the facility’s costs of complying

with the nationwide performance standards would be

significancly greater than the costs considered by EPA

in establishing those standards. Pet. App. 5la-456a. The

court also upheld EPA’s determinations that Section

316(b) applies to existing as well as new facilities, id. at

72a-77a, and that the loss of aquatic organisms is an ad-

verse environmental impact within the meaning of Sec-

tion 316(b), id. at 7T8a-80a.

SUMMARY OF ARGUMENT

The agency’s gap-filling interpretation of Section

316(b) of the CWA is entitled to deference under Chev-

ron U.S.A. Inc. v. NRDC, 467 U.S. 837 (1984). The

CWA is full of requirements governing the discharge of

poilutants, and in many instances Congress specified, in

detail, the factors that EPA must consider in implement-

ing those requirements. In Section 316(b), in contrast,

Congress included a single terse sentence concerning

_ the intake of water, and assigned broad authority to the

agency to determine how best to address that distinct

issue. The court of appeals erred by attempting to

micro-manage the agency’s exercise of its broad statu-

tory discretion.

A. The CWA requires that “the location, design, con-

struction, and capacity of cooling water intake struc-

tures reflect the dest technology available for minimiz-

ing adverse environmental impact.” 33 U.S.C. 1326(b)

(emphases added). Nothing in that statuterv standard

speaks directly to the question whether, or co what ex-

tent, EPA should consider the relationship between

costs and benefits. The “best” way for pursuing a goal

is not always the one that most single-mindedly pursues

that goal at all costs. Instead, the best way often de-

pends on other considerations.

Moreover, whether a technology is “available” under

Section 316(b) depends on its cost, as even the court of

appeals acknowledged. And the term “minimizing” is

commonly used to refer to reductions that fall short of

the greatest amount possible. Thus, the statutory stan-

dard does not unambiguously require EPA to set BTA

without regard to the relationship between costs and

benefits. Nor does it specify the extent to which EPA

may consider that relationship. Instead, the Act leaves

that determination to EPA—the agency with expertise

in making such determinations.

B. Section 316(b) cross-references Sections 301 and

306 of the Act by specifying that standards established

pursuant to those sections must require that intake

structures reflect BTA. Those sections contain several

“best” standards that govern the discharge of pollut-

ants. Significantly, the Act expressly requires EPA to

consider costs in promulgating all of those standards,

and specifically requires EPA to consider the relation-

ship between costs and benefits in promulgating two of

them. Thus, while Section 316(b) sets forth a different

standard than the “best” standards of Sections 301 and

306, and does not require EPA to follow those provisions

as a model for determining BTA, the cross-reference to

those provisions nonetheless suggests that EPA’s con-

sideration of the relationship between costs and benefits

is at least reasonable.

Congress had good reason to confer greater discre-

tion on the agency under Section 316(b) than under Sec-

tions 301 and 306. Section 316(b) is unique among the

CWA’s provisions in that it governs the intake of water,

as opposed to the discharge of pollutants. Moreover,

“Section 316(b) is something of an afterthought, having

been added by the conference committee without sub-

stantive comment.” Riverkeeper /, 358 F.3d at 186 n.12.

Especially compared to the far more detailed provisions

yoverning discharge limitations under Sections 301 and

306, Section 316(b)’s single sentence vests broad gap-

filling authority in EPA to address the unique issue of

intake restrictions. ,

C. The court of appeals’ error is confirmed not only

by the text, structure, and history of the statute, but

also by the extent to which the court attempted to micro-

manage EPA’s consideration of various factors. The

court held that EPA could undertake what the court

called “cost-effectiveness” but not “cost-benefit” analy-

sis—terms that appear nowhere in Section 316(b).

While the court ultimately acknowledged that the

agency could consider the relationship between costs

and benefits, it held that the agency could do so only

within an unspecified but “narrowly bounced” range.

Pet. App. 28a. And the court held that, while cost-bene-

fit analysis is impermissible, consideration of energy

efficiency is permissible. Nothing in Section 316(b)’s

single, terse sentence unambiguously draws those dis-

tinctions; instead, the court effectively imposed its own

preferences on the agency, in contravention of Chevron.

D. The court of appeals also turned normal rules of

statutory construction and agency deference on their

head by asserting that agencies may consider the rela-

tionship between costs and benefits only when Congress

has clearly authorized them to do so. Under Chevron, if

Congress has not directly spoken to the precise question

at issue, the agency has leeway to adopt its own con-

struction of the statute as long as it is reasonable. Thus,

Congress’s silence or ambiguity on an issue confers dis-

cretion, not limitation. In any event, the traditional in-

terpretive principles discussed above make clear that, in

this instance, Congress intended to confer especially

broad discretionary authority on EPA.

E. The agency’s measured consideration of costs and

benefits in. this rulemaking fell well within its discretion.

Indeed, EPA’s selection of a nationwide performance

standard based on multiple relevant factors may be per-

missible even under the cramped standard created by

the court of appeals. The agency found that the environ-

mental respondents’ preferred technology had similar

benefits, but far higher costs, than the performance

standards selected by EPA, and that other factors such

as energy efficiency and air quality also weighed in favor

of EPA’s chosen performance standards. The agency

further authorized a site-specific determination of BTA

if a facility’s costs of compliance with the nationwide

performance standards would be significantly greater

than the benefits. Especially considering that BTA was

historically determined on a facility-specific, best-pro-

fessional-judgment basis, and the site-specific provision

looks only to whether costs significantly exceed bene-

fits, that provision falls comfortably within EPA’s dis-

cretion.

ARGUMENT

THE ENVIRONMENTAL PROTECTION AGENCY MAY CON-

SIDER COSTS IN RELATION TO BENEFITS IN DETERMIN-

ING THE BEST TECHNOLOGY AVAILABLE FOR MINIMIZ-

ING ADVERSE ENVIRONMENTAL IMPACT UNDER SEC-

TION 316(b)

Consideration of the costs of a certain action in rela-

tion to its benefits is common in government regulation,

as it is in human experience generally. In everyday life,

‘people routinely weigh costs against benefits in deciding

whether to do something. If a bigger car would be safer

than a smaller and less expensive one, a person must

decide whether the extra expense (of both the larger car

and the subsequent gasoline purchases) is justified by

the safety and other benefits. Similarly, if a better home

fire alarm would cost more than a traditional one, or if

expensive new insulation would be more fire-resistant

than the insulation already installed in a house, the

homeowner must decide whether the added safety bene-

fit justifies the added cost. See Hon. Stephen G. Breyer,

Breaking the Vicious Circle: Toward Effective Risk

Regulation 16 (1994) (Vicious Circle).

In numerous contexts, federal agencies engage in

conceptually similar analyses by deciding whether a reg-

ulatory alternative’s costs are justified by its benefits.

To be sure, agencies do not always make cost-benefit

analyses. And when they do such analyses, agencies

consider costs and benefits in different ways, and give

differing weight to costs and benefits. Sometimes costs

and benefits are measured in monetary terms; other

times they are compared qualitatively, as people do in

everyday life. Sometimes an agency looks only at whe-

ther the benefits exceed the costs; other times (as here)

the agency considers the cost-benefit relationship in

conjunction with other factors. In the latter circum-

stance, after considering all relevant factors, an agency

might decide te issue a regulation even though its costs

are very high in proportion to its benefits. Or the

agency might decide that the costs are too dispropor-

tiomate to benefits to justify the proposal. But however

an agency approaches the issue, consideration of costs

and benefits is a common feature of agency decision-

making, including in the environmental area.

The question presented here is not whether or to

what extent cost-benefit analysis is a good thing. In-

stead, the question is whether Section 316(b) permits

EPA to consider the relationship between costs and ben-

efits in determining the best technology available for

minimizing the adverse environmental impact of cooling

water intake structures. That question must be an-

swered by applying the familiar two-step framework

established by Chevron: first, “whether Congress has

directly spoken to the precise question at issue”; and, if

not, “whether the agency’s answer is based on a permis-

sible construction of the statute.” 467 U.S. at 842-843.

As explained below, Section 316(b) does not directly an-

swer the question presented (or preclude EPA from con-

sidering the relationship between costs and benefits),

and EPA’s determination that it is appropriate to con-

sider both costs and benefits in this context is an en-

tirely permissible construction of the statute.

A. The Statutery Text Does Not Unambiguously Prohibit

Consideration Of The Relationship Between Costs And

Benefits

Section 316(b) requires that “the location, design,

construction, and capacity of cooling water intake struc-

tures reflect the best technology available for mintmiz-

ing adverse environmental impact.” 33 U.S.C. 1326(b)

(emphases added). That statutory standard does not

directly speak to the question presented. Nor, to be

clear, does it unambiguously preclude EPA from consid-

ering the relationship between costs and benefits—espe-

cially considering that Congress did not define any of

the key statutory terms or otherwise specify the factors

the agency may or must consider. See Pet. App. 20a

(“Section 316(b) does not itself set forth * * * the spe-

cific factors that the EPA must consider in determining

BTA.”).

The first key statutory term is “best.” Best is a rela-

tive term capable of different meanings, and the “best”

way of pursuing a goal is not always the one that most

single-mindedly achieves that goal at all costs. For ex-

ample, the best way to drive home might not be the

quickest and most direct route on a map. That route

might be more dangerous than others, more prone to

traffic jams, or more expensive (e.g., if it required pay-

ment of a toll). Similarly, the best way to win a game

does not typically entail violating the rules, even if

cheating would improve one’s odds of winning, because

other values matter as well. And the best way to catch

fish is not necessarily the one that nets the most fish in

the shortest period of time; to many, fly fishing has off-

setting advantages.

Moreover, Section 316(b) refers to the “best technol-

ogy available for minimizing adverse environmental im-

pact,” not the technology that is best at minimizing such

impact. 33 U.S.C. 1326(b) (emphasis added). The word

“for” is sometimes “[u]sed to indicate appropriateness or

suitability.” American Heritage Dictionary 686 (4th ed.

2006) (American Heritage); accord VI Oxford English

Dictionary 26 (2d ed. 1989). Thus, while an individual

may be regarded as the best person at his trade, he

might not be the best person for a particular job, de-

pending on a range of considerations. As the Sixth Cir-

cuit explained in construing another “best” standard in

the CWA, the “requirement that EPA choose the ‘best’

technology does not mean that the chosen technology

must be the best pollutant removal.” BP Exploration &

Oil, Inc. v. United States EPA, 66 F.3d 784, 796 (1995);

accord Citizens Coal Council v. United States EPA, 447

F.3d 879, 903 (6th Cir. 2006) (en bance).

The statute also refers to the “best technology avail-

able for minimizing adverse environmental impact.”

33 U.S.C. 1326(b) (emphases added). As the court of

appeals recognized, a technology’s availability under

Section 316(b) depends on its cost. Pet. App. 24a; see

also id. at 349a-350a. The court erred, however, in hold-

ing that the statute unambiguously constrains EPA’s

consideration of costs to whether a technology’s cost

could be “reasonably borne by the industry.” /d. at 24a.

Even considering the term “available” in isolation, many

people would not think of a luxury item as being “avail-

able” simply because its purchase would not bankrupt

them. See Random House Dictionary of the English

Language 142 (2d ed. 1987) (defining “available” to

mean, among other things, “readily obtainable; accessi-

ble”); American Heritage 125 (“| present and ready for

use; at hand; accessible”). Indeed, assuming that the

court of appeals did not intend tw require a jmat-shy-of-

bankruptcy standard, but instead intended the “reason-

ably borne” standard to be a more flexible one, that only

underscores that Section 316(b)’s use of the term “avail-

able” does not unambiguously preclude consideration of

whether an option’s costs are warranted in light of other

considerations.

The statutory term “minimizing” is also significant.

To be sure, that term most formally refers to “reduc-

[ing] to the smallest possible amount, extent, size, or

degree.” American Heritage 1119. But in common us-

age, the terms “minimal” and “minimize” often refer to

a lesser degree of reduction. See, e.g., ibid.; Black's

Law Dictionary 1016 (8th ed. 2004) (“smallest accept-

able or possible quantity”) (emphasis added). For exam-

ple, if a person said that he was trying to minimize the

risk of being hit by a car while crossing a street, he pre-

sumably would not mean that he was staying inside his

house at all times. Instead, the person would presum-

ably mean that he was trying to reduce that risk consis-

tent with other practical considerations, including eco-

nomic ones such as the need to travel to work, and thus,

for example, was looking both ways before crossing a

street. Accordingly, EPA determined that the appropr-

ate “degree” of minimization may depend in part on “the

relationship between costs and benefits.” Pet. App.

355a; see 40 C.F.R. 125.83 (“Minimize means to reduce

to the smallest amount, extent, or degree reasonably

possible.”) (emphasis added).

The upshot is that the “best technology available for

minimizing adverse environmental impact,” 33 U.S.C.

1326(b), is not unambiguously the one that achieves the

greatest degree of environmental protection without

regard to other considerations, including the relation-

ship between costs and benefits. If it did, EPA might

have to require a facility to devote billions of dollars to

saving a relatively small number of organisms, even if

those billions might be far better spent in other ways,

including on more beneficial environmental objectives.

Cf. Vicious Circle 18-19. Nothing in the statutory text

compels that result.

B. The Statutory Structure, Context, And History Confirm

That EPA May Consider The Relationship Between

Costs And Benefits

Section 316(b) does not define its key terms or set

forth the factors that EPA must or may consider in de-

termining BTA. It does, however, cross-reterence Sec-

tions 301 and 306 of the CWA by specifying that stan-

dards established pursuant to those sections, which gov-

ern the discharge of pollutants, must require that intake

structures reflect BTA. 33 U.S.C. 1326(b). The only

direct consequence of the cross-reference is a proce-

dural] one: when anv standard under Section 301 or 306

public health” with “an adequate margin of safety,” 42

U.S.C. 7409(b)(1)—“unambiguously bars cost consider-

ations from the NAAQS-setting process” when that pro-

vision is “interpreted in its statutory and historical con-

text and with appreciation for its importance to the CAA

as a whole.” 531 U.S. at 471.

Whitman is inapposite for a number of reasons.

While that case applied a presumption against any con-

sideration of costs in setting NAAQS, the court of ap-

peals here held that EPA may consider costs in deter-

mining BTA. See Pet. App. 26a. The question here is

not (as it was in Whitman) whether EPA may consider

costs at all in setting the relevant standaras, but whe-

ther the agency’s consideration of costs may take the

form of cost-benefit analysis. A presumption against

any consideration of costs provides little if any support

for the court of appeals’ decision permitting the agency

to consider costs but greatly circumscribing its manner

of doing so, which is presumably why the court of ap-

peals itself did not rely on Whitman.

In addition, the Whitman Court repeatedly empha-

sized that its holding turned on the NAAQS’ centrality

to the CAA. See 531 U.S. at 468, 469 n.1, 471. Thus, the

Court did not disapprove the District of Columbia Cir-

cuit’s cases holding that EPA may generally consider

costs in the absence of an express directive to the con-

trary. Instead, the Whitman Court emphasized that

“Injone of the sections of the CAA in which the District

of Columbia Circuit has found authority for the EPA to

consider costs shares [Section] 109(b)(1)’s prominence in

the overall statutory scheme.” /d. at 469 n.1 (citing, e.g.,

Michigan, 213 F.3d at 678-679). As explained above,

Section 316(b)’s single sentence concerning the intake of

water is by no means the centerpiece of the CWA.

Rather, it is “something of an afterthought, having been

added by the conference committee without substantive

comment,” Riverkeeper I, 358 F.3d at 186 n.12, that ad-

dresses a unique issue separate and apart from the

CWA’s normal focus on the discharge of pollutants into

waters of the United States. See p. 23, supra. Thus,

there is no basis for applying a presumption against

weighing of costs and benefits in this case.

b. Even if some presumption applied here, it would

be overcome by the statutory text, context, and legisla-

tive history discussed above. The text of Section

316(b)’s BTA standard, combined with its cross-refer-

ence to Sections 301 and 306, provides a strong textual

basis for concluding that cost-benefit analysis is permis-

sible. Moreover, the terseness of the relevant statutory

text, coupled with the circumstances of its enactment,

make clear that Congress intended to confer especially

broad authority on EPA to address the unique problems

associated with intake of water by cooling towers. See

pp. 22-23, supra. Thus, as the Second Circuit observed

in Riverkeeper I, “[tlo the extent [Section 316(b)] is si-

lent on issues to which other sections speak, [a court

should} hesitate to draw the negative inference that the

brevity of section 316(b) reflects an intention to limit the

EPA’s authority rather than a desire te delegate signifi-

cant rulemaking authority to the Agency.” 358 F.3d at

186 n.12. That understates the matter because such

“hesitatlion]” is, of course, compelled by Chevron. See

467 U.S. at 842-843.

E. EPA’s Consideration Of Costs And Benefits In The

Rulemaking At Issue Here Fell Well Within Its Discre-

tion

In the rulemaking here, EPA explained that “the

relationship of costs to environmental benefits is an im-

portant” consideration, because “EPA has long recog-

nized that there should be some reasonable relationship

between the cost of cooling water intake structure con-

trol technology and the environmental benefits associ-

ated with its use.” Pet. App. 253a. EPA also made

clear, however, that the relationship between costs and

benefits was not, by itself, determinative. Instead, se-

lecting BTA “encompasses consideration of effective-

ness, costs, non-water quality environmental impacts,

feasibility issues and a host of other considerations.” /d.

at 219a.

EPA then considered costs along with other factors

in selecting national BTA performance standards. See

Pet. App. 255a-261a, 368a-369a. In addition, EPA autho-

rized individual facilities to seek site-specific BTA deter-

minations if, on a facility-specific basis, the costs of com-

pliance with the national standard would be significantly

greater than the benefits. 40 C.F.R. 125.94(a)(5)@i). In

each instance, EPA’s consideration of costs and benefits

was reasonable and fell comfortably within its statutory

authority.

1. EPA based the national performance standards on its

weighing of multiple relevant factors

a. EPA determined BTA after analyzing the various

options’ “overall efficacy, availability, economic practica-

bility, including economic impact and the relationship of

costs with benefits, and non-water quality environmental

impacts, including energy impacts.” Pet. App. 253a.

EPA ultimately selected a combination of technologies

to reflect BTA for existing large power plants. /d. at

224a-229a. Based on those technologies, EPA then es-

tablished national performance standards for reducing

impingement mortality (by 80%-95%) and entrainment

(by 60%-90%), but did not require the use of any specific

technology to achieve those standards. See 40 C.F.R.

125.94(b); Pet. App. 226a-227a.

EPA rejected closed-cycle cooling technology as BTA

“based on its generally high costs (due to conversions),

the fact that other technologies approach the perfor-

mance of this option, concerns for energy impacts due to

retrofitting existing facilities, and other considerations.”

Pet App. 255a. EPA had selected closed-cycle cooling

technology as BTA for new facilities in the Phase I rule-

making, but the agency determined that “retrofit{ting]

existing systems is not the most cost-effective approach

and at many existing facilities, retrofits may be impossi-

ble or not economically practicable.” /bid. The agency

explained that the cost of closed-cycle recirculating cool-

ing towers for Phase IT facilities was many times higher

than for Phase I facilities—at least $130-$200 million per

tower, and probably more than that, with additional an-

nuai operating costs of up to $20 million per facility,

compared to annual costs as low as $170,000 for new

facilities. Jd. at 255a-256a.

In addition to considering costs, EPA stressed that

mandatory closed-cycle cooling technology would impose

an “energy penalty” because existing fossil-fuel power

plants that installed that technology would produce be-

tween 2.4% and 4% less electricity while consuming the

same amount of coal. Construction of 20 additional

plants could be required to make up for the lost produc-

tion, thereby increasing both financial costs and air pol-

lution. Pet. App. 257a-258a.

Finally, EPA compared the effectiveness of closed-

cycle cooling technology with the option that it ulti-

mately selected, and determined that, “[aJlthough not

identical, the ranges of impingement and entrainment

reduction are similar under both options.” Pet. App.

260a. After “consider[ing] this similarity in efficacy,”

along with the other factors noted above, EPA deter-

mined that “the total capital cost investment and associ-

ated economic impact is simply too high * * * for EFA

to be able to justify selecting cooling towers” as BTA.

Id. at 261a; see id. at 260a, 368a-369a.

b. EPA’s decisionmaking is fully consistent with its

authority to consider costs and benefits under Section

316(b). As explained above, Section 316(b) permits EPA

to consider the relationship between costs and benefits.

Moreover, the agency’s analysis ultimately turned on

the fact that its chosen option produces similar results

to closed-cycle cooling technology at much lower cost

and with less harm to the Nation’s energy supply and air

quality. See Pet. App. 260a-261a, 368a-369a.

Thus, the agency’s analysis may be permissible even

under the cramped standard fashioned by the court of

appeals. The court of appeals held that EPA may under-

take what the court referred to as “cost-effectiveness”

analysis by “choos[ing] [a] cheaper technology” even if

that technology is somewhat less effective than a signifi-

cantly more costly technology. Pet. App. 27a. The court

also acknowledged that EPA may consider “energy effi-

ciency or environmental impact.” /d. at 26a n.12. As

discussed above, EPA undertook that type of analysis.

While it is not clear whether the court of appeals would

conclude that EPA had considered cost-effectiveness

only within a sufficiently “narrowly bounded range,” id.

at 28a, or whether the court of appeals would ultimately

agree with EPA’s balancing of the various other rele-

vant factors, those matters fall well within EPA’s discre-

tion, not the court of appeals’. Cf. id. at 32a-37a (re-

manding for EPA to provide a further explanation of the

basis for its decision).”

Indeed, Riverkeeper I strongly suggested as much.

In the Phase I Rule, EPA rejected a technology, known

as dry cooling, that “dramatically reduc[ed) impinge-

ment and entrainment” by “virtually eliminat[{ing] the

need for cooling water.” Riverkeeper I, 358 F.3« at 194.

EPA determined that, among other things, “dry .ooling

costs more than ten times as much per year as closed-

cycle wet cooling, but it is estimated to reduce water

intake by only an additional 5 percent relative to once-

through cooling.” Jd. at 194 (footnotes omitted). EPA

also considered a variety of other factors, including en-

ergy consumption and air emiss:ons. /d. at 195. Recog-

nizing that EPA’s weighing of relevant factors falls

within the agency’s “considerable discretion,” the court

noted that it was “not well equipped * * * to meaning-

fully weigh a 95 percent reduction in entrainment

against .027 percent of new generating capacity, 300

pounds of mercury, and $443 million dollars.” Jd. at 196.

* The court of appeals’ definition of the term “cost-effective” sows

confusion because it differs from EPA’s use of that term. The court

defined cost-effectiveness to refer to the least expensive method of

achieving a narrowly bounded level of benefit. See Pet. App. 23a, 28a.

In the rulemaking below, however, EPA’s cost-effectiveness analysis

compared the incremental cost of a technology to its incremental

benefits. Thus, while EPA explained that its decision was based in part

on cost-effectiveness considerations, the agency also made clear that its

cost-effectiveness analysis looked to the relationship between costs and

benefits. See, e.g., id. at 260a-261a.

In reviewing EPA’s determination of BAT and BADT

limitations under Sections 301 and 306, other courts of

appeals have likewise observed that, because “Congress

did not mandate any particular structure or weight for

the many [relevant] factors,” Weyerhaeuser Co. v.

Costle, 590 F.2d 1011, 1045 (D.C. Cir. 1978), EPA has

“considerable discretion in evaluating the relevant fac-

tors and determining the weight to be accorded to each.”

Texas Oil & Gas Ass’n v. United States EPA, 161 F.3d

923, 928 (5th Cir. 1998); see NWF v. EPA, 286 F.3d 554,

570 (D.C. Cir. 2002); BP Exploration, 66 F.3d at 796.°

2. EPA permissibly authorized site-specific determina-

tions in circumstances where costs significantly ex-

ceed benefits

In addition to establishing. nationwide performance

standards, EPA authorized the operator of an individual

facility to apply for a site-specific determination of BTA

if the facility’s costs of complying with the national per-

formance standards “would be significantly greater than

the benefits.” 40 C.F.R. 125.94(a)(5)(ii). If the operator

makes that showing with “reliable, scientifically valid”

data, “[t]he [agency] must establish site-specific alterna-

tive requirements * * * that achieve an efficacy that,

in the judgment of the [agency], is as close as practica-

' ble to the applicable performance standards * * *

without resulting in costs that are significantly greater

* The court of appeals upheld EPA’s authority to express BTA as a

range, but remanded EPA’s chosen ranges based on its view that Sec-

tion 316(b) requires “as much reduction of adverse environmental! im-

pacts as is technologically possible.” Pet. App. 43a. Because that hold-

ing is based on the court’s erroneous construction of the Act, it should

be reversed as well.

than the benefits at {the] facility.” /bid.; see Pet. App.

222a-224a."

That provision, which is consistent with the historic

practice of determining BTA on a facility-specific, best-

professional-judgment basis, recognizes that site-spe-

cific differences among facilities might warrant different

results. The agency explained that its “comparison of

national costs to national benefits may not be applicable

to a specific site due to variations in (1) the performance.

of intake technologies and (2) characteristics of the

waterbody in which the intake(s) are sited.” Pet. App.

250a. “For example, there may be some facilities where

the absolute numbers of fish and shellfish impinged and

entrained is so minimal that the cost to achieve the re-

quired percentage reductions would be significantly

greater than the benefits of achieving the required re-

ductions at that particular site.” /bid.; see id. at 355a-

356a.

The court of appeals invalidated that provision based

on its view that cost-benefit analysis is impermissible.

Pet. App. 56a-60a. As explained above, that was error.

The court underscored its error by taking particular

exception to EPA’s determination that a cost-benefit

variance might be appropriate if very few aquatic organ-

isms were subject to impingement or entrainment in a

particular waterbody, such that there would be little

benefit in that waterbody from the use of more costly

* EPA also authorized an application for a site-specific determination

of BTA if a particular facility’s compliance costs “would be significantly

greater than the costs considered by the Administrator * * * in

establishing the applicable performance standards.” 40 C.F-.R.

125.94(a)(5)(i). The court of appeals remanded that provision for proce-

dural reasons that are distinct from the question presented here. Pet.

App. 49a-56a.

technology. See id. at 58a-€0a. The court determined

that EPA may not consider water quality, and thus may

not consider whether or to what extent a technology

would have greater environmental benefits than a less

expensive alternative. See ibid. As discussed above,

however, Section 316(b) requires BTA for “minimizing

adverse environmental impact,” and thus makes the en-

vironmental benefit to be achieved an important consid-

eration. See pp. 29-30, supra. Especially considering

that EPA authorized a site-specific BTA only when the

costs of complying with the nationwide performance

standards would be “significantly greater” than the ben-

efits, and that the agency nonetheless required a site-

specific BTA to “achieve an efficacy that * * * is as

close as practicable to the applicable performance stan-

dards” consistent with the significantly-greater test, 40

C.F.R. 125.94(a)(5)(ii), EPA did not exceed its broad

discretion under Section 316(b).°

° In the context of facility-specific BTA determinations, EPA’s long-

standing view has been that it would be unreasonable to select as BTA

a technology whose costs are wholly disproportionate to its benefits.

See pp. 27-28, supra. For purposes of the site-specific variance provi-

sion, EPA used a less stringent “significantly greater than” test in this

rulemaking. 40 C.F.R. 125.94(a)(5)(ii). EPA’s legal interpretations

have been consistent because the agency has not taken the position that

the “wholly disproportionate” standard is the only permissible way to

consider the relationship between costs and benefits; instead, EPA has

opined that it would be unreasonable to ignore a disproportionality of

that degree. See p. 27, supra. In addition, permit writers considered

the “wholly disproportionate” test in conjunction with other factors as

part of an overall best-professional-judgment determination. Whether

to permit a variance from the new nationwide performance standards

presents a different question, and EPA has long stressed the need for

flexibility in determining BTA for any particular facility. E.g., Pet. App.

250a-251a; J.A. 42-45. The need for flexibility is particularly great for

existing (Phase I1) facilities, because owners of newer facilities have far

CONCLUSION

The judgment of the court of appeals should be re-

versed with respect to the performance standards and

the site-specific cost-benefit provision and the case re-

manded.

Respectfully submitted.

GREGORY G. GARRE

Acting Solicitor General

RONALD J. TENPAS

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

PATRICIA K. HIRSCH

Acting General Counsel

RICHARD T. WITT

Attorney

Environmental Protection

Agency

Washington, D.C. 20460

DARYL JOSEFFER

Assistant to the Solicitor

General

DAVID S. GUALTIERI

CYNTHIA J. MORRIS

JESSICA O'DONNELL

Attorneys

JULY 2008

more flexibility in building new technology into the initial design. J.A.

309; 68 Fed. Reg. 13,541 (2003); 67 Fed. Reg. 17,145 (2002). In addition,

EPA determined that the more flexible “significantly greater than”

standard was needed in this context to avoid unwarranted energy im-

pacts, because the Phase II rule affects approximately 55% of the Na-

tion's electric-generating capacity. 68 Fed. Reg. at 13,541; 67 Fed. Reg.

at 17,145-17,146; J.A. 309. In any event, the court of appeals’ decision

does not rest on the difference between the “wholly disproportionate”

and “significantly greater than” standards; instead, the court errone-

ously insisted on its own, distinct “cost effectiveness” test. See Pet.

App. 26a; ef. id. at 55a-56a n.25 (noting the court’s “discomfort” with the

“significantly greater than” test).

APPENDIX

1. 33 U.S.C. 1311 provides in pertinent part:

Effluent limitations

(a) Illegality of pollutant discharges except in com-

pliance with law

Except as in compliance with this section and sec-

tions 1312, 1316, 1317, 1328, 1342, and 1344 of this title,

the discharge of any pollutant by any person shall be

unlawful.

(b) Timetable. for achievement of objectives

In order to carry out the objective of this chapter

there shall be achieved—

(1)(A) not later than July 1, 1977, effluent limi-

tations for point sources, other than publicly owned

treatment works, (i) which shall require the applica-

tion of the best practicable control technology cur-

rently available as defined by the Administrator pur-

suant to section 1314(b) of this title, or (ii) in the case

of a discharge into a publicly owned treatment works

which meets the requirements of subparagraph (B)

of this paragraph, which shall require compliance

with any applicable pretreatment requirements and

any requirements under section 1317 of this title; and

(B) for publicly owned treatment works in exis-

tence on July 1, 1977, or approved pursuant to sec-

tion 1283 of this title prior to June 30, 1974 (for

which construction must be completed within four

years of approval), effluent limitations based upon

secondary treatment as defined by the Administrator

pursuant to section 1314(d)(1) of this title; or,

(la)

gent limitation, including those necessary to meet

water quality standards, treatment standards, or

schedules of compliance, established pursuant to any

State law or regulations (under authority preserved

by section 1370 of this title) or any other Federal law

or regulation, or required to implement any applica-

ble water quality standard established pursuant to

this chapter.

(2)(A) for pollutants identified in subparagraphs

(C), (D), and (F) of this paragraph, effluent limita-

tions for categories and classes of point sources,

other than publicly owned treatment works, which

(i) shall require application of the best available tech-

nology economically achievable for such category or

class, which will result in reasonable further prog-

ress toward the national goal of eliminating the dis-

charge of all pollutants, as determined in accordance

with regulations issued by the Administrator pursu-

ant to section 1314(b)(2) of this title, which such ef-

fluent limitations shall require the elimination of dis-

charges of all pollutants if the Administrator finds,

on the basis of information available to him (includ-

ing information developed pursuant to section 1325

of this ‘itle), that such elimination is technologically

and economically achievable for a category or class

of point sources as determined in accordance with

regulations issued by the Administrator pursuant to

section 1314(b)(2) of this title, or (ii) in the case of

the introduction of a pollutant into a publicly owned

treatment works which meets the requirements of

subparagraph (B) of this paragraph, shall require

compliance with any applicable pretreatment re-

quirements and any other requirement under section

1317 of this title;

(B) Repealed. Pub. L. 97-117, § 21(b), Dec. 29,

1981, 95 Stat. 1632.

to in table 1 of Committee Print Numbered 95-30 of

the Committee on Public Works and Transportation

of the House of Representatives compliance with ef-

fluent limitations in accordance with subparagraph

(A) of this paragraph as expeditiously as practicable

but in no case later than three years after the date

such limitations are promulgated under section

1314(b) of this title, and in no case later than March

31, 1989;

(D) for all toxic pollutants listed under para-

graph (1) of subsection (a) of section 1317 of this title

which are not referred to in subparagraph (C) of this

paragraph compliance with effluent limitations in

accordance with subparagraph (A) of this paragraph

as expeditiously as practicable, but in no case later

than three years after the date such limitations are

promulgated under section 1314(b) of this title, and

in no case later than March 31, 1989;

(E) as expeditiously as practicable but in no case

later than three years after the date such limitations

are promulgated under section 1314(b) of this title,

and in no case later than March 31, 1989, compliance

with effluent limitations for categories and classes of

point sources, other than publicly owned treatment

works, which in the case of pollutants identified pur-

suant to section 1314(a)(4) of this title shall require

application of the best conventional pollutant contro]

technology as determined in accordance with regula-

tions issued by the Administrator pursuant to section

1314(b)(4) of this title; and

(F) for all pollutants (other than those subject to

subparagraphs (C), (D), or (E) of this paragraph)

compliance with effluent limitations in accordance

with subparagraph (A) of this paragraph as expedi-

tiously as practicable but in no case later than 3

years after the date such limitations are established,

and in no case later than March 31, 1989.

(3)(A) for effluent limitations under paragraph

(1)(A)(i) of this subsection promulgated after Janu-

ary 1, 1982, and requiring a level of control substan-

tially greater or based on fundamentally different

control technology than under permits for an indus-

trial category issued before such date, compliance as

expeditiously as practicable but in no case later than

three years after the date such limitations are pro-

mulgated under section 1314(b) of this title, and in no

case later than March 31, 1989; and

(B) for any effluent limitation in accordance

with paragraph (1)(A)(i), (2)(A)(i), or (2)(E) of this

subsection established only on the basis of section

1342(a)(1) of this title in a permit issued after Febru-

ary 4, 1987, compliance as expeditiously as practica-

ble but in no case later than three years after the

date such limitations are established, and in no case

later than March 31, 1989.

The Administrator may modify the requirements of

subsection (b)(2)(A) of this section with respect to any

point source for which a permit application is filed after

July 1, 1977, upon a showing by the owner or operator of

such point source satisfactory to the Administrator that

such modified requirements (1) will represent the maxi-

mum use of technology within the economic capability of

the owner or operator; and (2) will result in reasonable

further progress toward the elimination of the discharge

of pollutants.

(d) Review and revision of effluent limitations

Any effluent limitation required by paragraph (2) of

subsection (b) of this section shall be reviewed at least

every five years and, if appropriate, revised pursuant to

the procedure established under such paragraph.

(e) All point discharge source application of effluent

limitations

Effluent limitations established pursuant to this sec-

tion or section 1312 of this title shall be applied to all

point sources of discharge of pollutants in accordance

with the provisions of this chapter.

(f) Illegality of discharge of radiological, chemical, or

biological warfare agents, high-level radioactive

waste, or medical waste

Notwithstanding any other provisions of this chapter

it shall be unlawful to discharge any radiological, chemi-

cal, or biological warfare agent, any high-level radioac-

tive waste, or any medical waste, into the navigable wa-

ters.

(g) Modifications for certain nonconventional pollutants

(1) General authority

The Administrator, with the concurrence of the

State, may modify the requirements of subsection

(b)(2)(A) of this section with respect to the discharge

from any point source of ammonia, chlorine, color,

iron, and total phenols (4AAP) (when determined by

the Administrator to be a pollutant covered by sub-

section (b)(2)(F) of this section) and any other pollut-

ant which the Administrator lists under paragraph

(4) of this subsection.

(2) Requirements for granting modifications

A modification under this subsection shall be

granted only upon a showing by the owner or opera-

tor of a point source satisfactory to the Administra-

tor that—

(A) such modified requirements will result

at a minimum in compliance with the require-

ments of subsection (b)(1)(A) or (C) of this sec-

tion, whichever is applicable;

(B) such modified requirements will not re-

sult in any additional requirements on any other

point or nonpoint source; and

the attainment or maintenance of that water

quality which shall assure protection of public

water supplies, and the protection and propaga-

tion of a balanced population of shellfish, fish,

and wildlife, and allow recreational activities, in

and on the water and such modification will not

result in the discharge of pollutants in quantities

which may reasonably be anticipated to pose an

unacceptable risk to human health or the envi-

ronment because of bioaccumulation, persistency

in the environment, acute toxicity, chronic toxic-

ity (including carcinogenicity, mutagenicity or

teratogenicity), or synergistic propensities.

(3) Limitation on authority to apply for subsection

If an owner or operator of a point source applies

for a modification under this subsection with re-

spect to the discharge of any pollutant, such owner

or operator shall be eligible to apply for modifica-

tion under subsection (c) of this section with respect

to such pollutant only during the same time period

as he is eligible to apply for a modification under

this subsection.

(4) Procedures for listing additional pollutants

(A) General authority

Upon petition of any person, the Administrator

may add any pollutant to the list of pollutants for

which modification under this section is authorized

(except for pollutants identified pursuant to section

1314(a)(4) of this title, toxic pollutants subject to

section 1317(a) of this title, and the thermal compo-

nent of discharges) in accordance with the provi-

sions of this paragraph.

(B) Requirements for listing

(i) Sufficient information

The person petitioning for listing of an addi-

tional pollutant under this subsection shall sub-

mit to the Administrator sufficient information

to make the determinations required by this

subparagraph...

(ii) Toxic criteria determination

The Administrator shall determine whether

or not the pollutant meets the criteria for listing

as a toxic pollutant under section 1317(a) of this

title.

(iii) Listing as toxic pollutant

If the Administrator determines that the

pollutant meets the criteria for listing as a toxic

pollutant under section 1317(a) of this title, the

Administrator shall list the pollutant as a toxic

pollutant under section 1317(a) of this title.

(iv) Nonconventional criteria determination

If the Administrator determines that the

pollutant does not meet the criteria for listing as

a toxic pollutant under such section and deter-

mines that adequate test methods and sufficient

data are available to make the determinations

required by paragraph (2) of this subsection with

respect to the pollutant, the Administrator shall

add the pollutant to the list of pollutants speci-

fied in paragraph (1) of this subsection for which

modifications are authorized under this subsec-

tion.

A petition for listing of a pollutant under this

paragraph—

(i) must be filed not later than 270 days af-

ter the date of promulgation of an applicable

effluent guideline under Section 1314 of this ti-

tle;

(ii) may be filed before promulgation of such

guideline; and

(iii) may be filed with an application for a

modification under paragraph (1) with respect to

the discharge of such pollutant.

(D) Deadline for approval of petition

A decision to add a pollutant to the list of pollut-

ants for which modifications under this subsection

are authorized must be made within 270 days after

the date of promulgation of an applicable effluent

guideline under section 1314 of this title.

(E) Burden of proof

The burden of proof for making the determina-

tions under subparagraph (B) shall be on the peti-

tioner.

(5) Removal of pollutants

The Administrator may remove any pollutant

from the list of pollutants for which modifications are

authorized under this subsection if the Administrator

determines that adequate test methods and sufficient

data are no longer available for determining whether

10a

or not modifications may be granted with respect to

such pollutant under paragraph (2) of this subsection.

* *£* * K

2. 33 U.S.C. 1314 provides in pertinent part:

Information and guidelines

(a) Criteria development and publication

* * *£ *

(4) The Administrator shall, within 90 days after

December 27, 1977, and from time to time thereafter,

publish and revise as appropriate information identify-

ing conventional pollutants, including but not limited to,

pollutants classified as biological oxygen demanding,

_ suspended solids, fecal coliform, and pH. The thermal

component of any discharge shall not be identified as a

conventional pollutant under this paragraph.

* *£+ *£ K&

(b) Effluent limitation guidelines

For the purpose of adopting or revising effluent

limitations under this chapter the Administrator shall,

after consultation with appropriate Federal and State

agencies and other interested persons, publish within

one year of October 18, 1972, regulations, providing

guidelines for effluent limitations, and, at least annually

thereafter, revise, if appropriate, such regulations. Such

regulations shall—

(1)(A) identify, in terms of amounts of constitu-

ents and chemical, physical, and biological charac-

teristics of pollutants, the degree of effluent reduc-

tion attainable through the application of the best

practicable control technology currently available

lla

for classes and categories of point sources (other

than publicly owned treatment works); and

(B) specify factors to be taken into account in

determining the control measures and practices to

be applicable to point sources (other than publicly

owned treatment works) within such categories

or classes. Factors relating to the assessment of

best practicable control technology currently avail-

able to comply with subsection (b)(1) of section 1311

of this title shall include consideration of the total

cost of application of technology in relation to the

effluent reduction benefits to be achieved from

such application, and shall also take into account

the age of equipment and facilities involved, the pro-

cess employed, the engineering aspects of the appli-

cation of various types of control techniques, pro-

cess changes, non-water quality environmental im-

pact (including energy requirements), and such

other factors as the Administrator deems appropri-

ate;

(2)(A) identify, in terms of amounts of constitu-

ents and chemical, physical, and biological charac-

teristics of pollutants, the degree of effluent reduc-

tion attainable through the application of the best

control measures and practices achievable including

treatment techniques, process and procedure inno-

vations, operating methods, and other alternatives

for classes and categories of point sources (other

than publicly owned treatment works); and

(B) specify factors to be taken into account in

determining the best measures and practices avail-

able to comply with subsection (b)(2) of section 1311

of this title to be applicable to any point source

12a

(other than publicly owned treatment works) within

such categories or classes. Factors relating to the

assessment of best available technology shall take

into account the age of equipment and facilities in-

volved, the process employed, the engineering as-

pects of the application of various types of control

techniques, process changes, the cost of achieving

such effluent reduction, non-water quality environ-

mental impact (including energy requirements), and

such other factors as the Administrator deems ap-

propriate;

(3) identify control measures and practices avail-

able to eliminate the discharge of pollutants from

categories and classes of point sources, taking into

account the cost of achieving such elimination of the

discharge of pollutants; and

(4)(A) identify, in terms of amounts of constitu-

ents and chemical, physical, and biological charac-

teristics of pollutants, the degree of effluent reduc-

tion attainable through the application of the best

conventional pollutant control technology (including

measures and practices) for classes and categories

of point sources (other than publicly owned treat-

ment works); and

(B) specify factors to be taken into account in

determining the best conventional pollutant control

technology measures and practices to comply with

section 1311(b)(2)(E) of this title to be applicable to

any point source (other than publicly owned treat-

ment works) within such categories or classes. Fac-

tors relating to the assessment of best conventional

pollutant control technology (including measures

13a

and practices) shall include consideration of the rea-

sonableness of the relationship between the costs

of attaining a reduction in effluents and the effluent

reduction benefits derived, and the comparison

of the cost and level of reduction of such pollu-

tants from the discharge from publicly owned treat-

ment works to the cost and level of reduction of

such pollutants from a class or category of indus-

trial sources, and shall take into account the age

of equipment and facilities involved, the process

employed, the engineering aspects of the applica-

tion of various types of control techniques, process

changes, non-water quality environmental impact

(including energy requirements), and such other

factors as the Administrator deems appropriate.

3. 33 U.S.C. 1316 provides:

National standards of performance

(a) Definitions

For purposes of this section:

(1) The term “standard of performance” means a

standard for the control of the discharge of pollutants

which reflect the greatest degree of effluent reduction

which the Administrator determines to be achievable

through application of the best available demonstrated

control technology, processes, operating methods, or

other alternatives, including, where practicable, a stan-

dard permitting no discharge of pollutants.

(2) The term “new source” means any source, the con-

struction of which is commenced after the publication of

proposed regulations prescribing a standard of perfor-

mance under this section which will be applicable to such

14a

source, if such standard is thereafter promulgated in

accordance with this section.

* *+ * * *

(b) Categories of sources; Federal standards of perfor-

mance for new sources

(1)(A) The Administrator shall, within ninety days af-

ter October 18, 1972, publish (and from time to time

thereafter shall revise) a list of categories of sources,

which shall, at the minimum, include:

pulp and paper mills;

paperboard, builders paper and board mills;

meat product and rendering processing;

dairy product processing;

grain mills;

canned and preserved fruits and vegetables process-

Ing;

canned and preserved seafood processing;

sugar processing;

textile mills;

cement manufacturing;

feedlots;

electroplating;

organic chemicals manufacturing;

inorganic chemicals manufacturing;

plastic and synthetic materials manufacturing;

soap and detergent manufacturing;

15a

fertilizer manufacturing;

petroleum refining;

iron and steel manufacturing;

nonferrous metals manufacturing;

phosphate manufacturing;

steam electric powerplants;

ferroalloy manufacturing;

leather tanning and finishing;

glass and asbestos manufacturing;

rubber processing; and

timber products processing.

(B) As soon as practicable, but in no case more than

one year, after a category of sources is included in a list

under subparagraph (A) of this paragraph, the Adminis-

trator shall propose and publish regulations establishing

Federal standards of performance for new sources

within such category. The Administrator shall afford

interested persons an opportunity for written comment

on such proposed regulations. After considering such

comments, he shall promulgate, within one hundred and

twenty days after publication of such proposed regula-

tions, such standards with such adjustments as he

deems appropriate. The Administrator shall, from time

to time, as technology and alternatives change, revise

such standards following the procedure required by this

subsection for promulgation of such standards. Stan-

dards of performance, or revisions thereof, shall become

effective upon promulgation. In establishing or revising

Federal standards of performance for new sources un-

der this section, the Administrator shall take into con-

16a

sideration the cost of achieving such effluent reduction,

and any non-water quality, environmental impact and

energy requirements.

(2) The Administrator may distinguish among class-

es, types, and sizes within categories of new sources for

the purpose of establishing such standards and shall

consider the type of process employed (including wheth-

er batch or continuous).

(3) The provisions of this section shall apply to any

new source owned or operated by the United States.

x K- KK KK

4. 33 U.S.C. 1326 provides:

Thermal discharges

(a) Effluent limitations that will assure protection and

propagation of balanced, indigenous population of

shellfish, fish, and wildlife

With respect to any point source otherwise subject to

the provisions of section 1311 of this title or section 1316

of this title, whenever the owner or operator of any such

source, after opportunity for public hearing, can demon-

strate to the satisfaction of the Administrator (or, if ap-

propriate, the State) that any effluent limitation pro-

pesed for the control of the thermal component of any

discharge from such source will require effluent limita-

tions more stringent than necessary to assure the pro-

jection and propagation of a balanced, indigenous popu-

lation of shellfish, fish, and wildlife in and on the body of

water into which the discharge is to be made, the Ad-

ministrator (or, if appropriate, the State) may impose an

effluent limitation under such sections for such plant,

with respect to the thermal component of such discharge

l7a

(taking into account the interaction of such thermal com-

ponent with other pollutants), that will assure the pro-

tection and propagation of a balanced, indigenous popu-

lation of shellfish, fish, and wildlife in and on that body

of water.

(b) Cooling water intake structures

Any standard established pursuant to section 1311 of

this title or section 1316 of this title and applicable to a

point source shall require that the location, design, con-

struction, and capacity of cooling water intake struc-

tures reflect the best technology available for minimiz-

ing adverse environmental impact.

limitations following discharge point source modifi-

cation commenced after October 18, 1972

Notwithstanding any other provision of this chapter,

any point source of a discharge having a thermal compo-

nent, the modification of which point source is com-

menced after October 18, 1972, and which, as modified,

meets effluent limitations established under section 1311

of this title or, if more stringent, effluent limitations

established under section 1313 of this title and which

effluent limitations will assure protection and propaga-

tion of a balanced, indigenous population of shellfish,

fish, and wildlife in or on the water into which the dis-

charge is made, shall not be subject to any more strin-

gent effluent limitation with respect to the thermal com-

ponent of its discharge during a ten year period begin-

ning on the date of completion of such modification or

during the period of depreciation or amortization of such

facility for the purpose of section 167 or 169 (or both) of

title 26, whichever period ends first.

18a

5. 33 U.S.C. 1362 provides in pertinent part:

Definitions

Except as otherwise specifically provided, when used

in this chapter:

* *+ * * *

(13) The term “toxic pollutant” means those pollut-

ants, or combinations of pollutants, including disease-

causing agents, which after discharge and upon expo-

sure, ingestion, inhalation or assimilation into any or-

ganism, either directly from the environment or indi-

rectly by ingestion through food chains, will, on the ba-

sis of information available to the Administrator, cause

death, disease, behavioral abnormalities, cancer, genetic

mutations physiological malfunctions (including mal-

functions in reproduction) or physical deformations, in

such organisms or their offspring.

6. 40 C.F.R. 125.83 provides in pertinent part:

W*... special definitions apply to this subpart?

* * &* & *

Minimize means to reduce to the smallest amount,

extent, or degree reasonably possible.

is made applicable to a point source with an intake struc-

ture, such as in an NPDES permit, the standard must

also reflect BTA limits. Cf. Pet. App. 5a. Nonetheless,

the cross-reference to Sections 301 and 306 is informa-

tive, especially because those sections include numerous

other “best” standards. See id. at 6a, 20a; Riverkeeper

1, 358 F.3d at 186; Pet. App. 154a, 349a-350a.

As discussed below, Congress specified the factors

that EPA must consider in promulgating each of the

various “best” standards found in Sections 301 and 306.

In doing so, it expressly required consideration of costs

for all of those standards, and specifically required con-

sideration of the relationship between costs and benefits

for two of them. The express statutory mandate to con-

sider costs under the cross-referenced sections strongly

supports EPA’s interpretation that consideration of the

relationship between costs and benefits is permissible

under Section 316(b). Moreover, Congress's decision to

specify the factors that EPA must consider under the

“best” standards for the discharge of pollutants under

Sections 301 and 306, but not under the different “best”

standard for the intake of water under Section 316(b),

confirms that Congress intended to grant broad discre-

tion to the agency to interpret and implement Section

316(b)’s terse and unique provision.

I. Section 316(b) cross-references provisions that re-

quire consideration of costs, including comparison of

costs and benefits

The cross-referenced Section 301 directs EPA to

promulgate “effluent limitations for point sources * * *

which shall require the application of the best practica-

ble control technology currently available” (BPT).

33 U.S.C. 1311(b)(1)(A). Congress specified that, in es-

tablishing BPT, EPA must consider, among other fac-

tors, “the total cost of application of technology in rela-

tion to the effluent reduction benefits to be achieved

from such application.” 33 U.S.C. 1314(b)(1)(B). Deter-

mination of BPT, therefore, requires “weighing benefits

and costs.” EPA v. National Crushed Stone Ass’n, 449

U.S. 64, 76 (1980).

While the BPT standards were to provide the first

effluent limitations for «il pollutants, Congress directed

EPA to promulgate more stringent effluent limitations

thereafter. National Crushed Stone, 449 U.S. at 69-70

& n.9. For conventional pollutants, Congress required

EPA to promulgate effluent limitations based on the

“best conventional pollution control technology” (BCT).

33 U.S.C. 1311(b)(2)(E); see 33 U.S.C. 1314(a)(4) (grant-

- ing EPA authority to identify conventional pollutants);

see also National Crushed Stone, 449 U.S. at 70 n.9. In

determining BCT, EPA must consider, among other

factors, “the relationship between the costs of attaining

a reduction in effluents and the effluent reduction bene-

fits derived.” 33 U.S.C. 1314(b)(4)(B). Thus, Congress

again expressly required consideration of the relation-

ship between costs and benefits. See, e.g., American

Paper Inst. v. United States EPA, 660 F.2d 954, 961 (4th

Cir. 1981).

For toxic and some other non-conventional pollut-

ants, Congress required limitations that “require appli-

cation of the best available technology economically

achievable * * * which will result in reasonable fur-

ther progress toward the national goal of eliminating the

discharge of all pollutants” (BAT), unless EPA deter-

mines that the complete elimination of pollutant dis-

charges is “technologically and economically achievable”

for a category or class of point sources. 33 U.S.C.

1311(b)(2)(A), (C), (D), (F); see 33 U.S.C. 1362(13) (de-

fining the term “toxic pollutant”); see also National

Crushed Stone, 449 U.S. at 70-71. In the latter situation,

EPA is to require the elimination of such discharges. 33

U.S.C. 1311(b)(2)(A). Congress specified that, in pro-

mulgating BAT standards, EPA “shall take into ac-

count” a number of factors, including “the cost of achiev-

ing such effluent reduction * * * and such other fac-

tors as the Administrator deems appropriate.” 33

U.S.C. 1314(b)(2)(B). Congress further authorized EPA

to promulgate standards less stringent than BAT, but at

least as stringent as BPT, for certain non-conventional

pollutants. See 33 U.S.C. 1311(g).

While the various Section 301 standards govern ex-

isting sources, Section 306 requires EPA to promulgate

standards of performance for new sources. 33 U.S.C.

1316(b)(1)(B). Those standards must “reflect the great-

est degree of effluent reduction which the Administrator

determines to be achievable through application of the

best available demonstrated control technology, pro-

cesses, operating methods, or other alternatives, includ-

ing, where practicable, a standard permitting no dis-

charge of pollutants” (BADT). 33 U.S.C. 1316(a)(1). In

establishing BADT, EPA “shall take into consideration

the cost of achieving such effluent reduction, and any

non-water quality, environmental impact and energy

requirements.” 33 ''.S.C. 1316(b)(1)(B) (emphasis ad-

ded).

The bottom line is that each of the cross-referenced

provisions requires consideration of costs, and two of

them (BPT and BCT) specifically require comparison of

costs and benefits. Section 316(b)’s cross-reference to

those provisions therefore reinforces the conclusion that

it does not unambiguously preclude EPA from consider-

ing the relationship between costs and benefits. Pet.

App. 345a-350a. Indeed, considering that standards

established pursuant to Sections 301 and 306 must re-

quire that intake structures reflect BTA, and that all of

the relevant standards and limitations are set forth in

the same NPDES permit for a facility, see 33 U.S.C.

1326(b), it would make little sense for EPA to have less

flexibility in determining BTA than in determining the

other standards.

2. Congress conferred broad authority on EPA to deter-

mine how best to consider costs, benefits, and other

relevant factors

a. Especially measured against the detailed provi-

sions governing the factors that EPA must consider in

promulgating effluent limitations under Sections 301

and 306, the single sentence set forth in Section 316(b)

confers broad authority on the agency to determine both

which factors to consider and how to consider them.

Section 316(b) sets forth a different standard (BTA)

than the other sections. And nothing in the Act evinces

an intent to require EPA to treat BTA like—or differ-

ently than—any one of the Section 301 or 306 effluent

limitations. Nor does Section 316(b) evince any intent to

require EPA to consider only the factors listed in one or

another of those sections, or to consider any given factor

in precisely the same manner that it considers that fac-

tor in determining another of the “best” standards. In-

stead, as the Second Circuit itself observed in River-

keeper I, the fact that Congress set forth lists of factors

that EPA must consider in implementing the various

“best” standards of Sections 301 and 306, but conspicu-

ously did not do so in Section 316(b), confirms the

breadth of the discretion left to EPA. 358 F.3d at 187;

see Pet. App. 156a-157a.

b. Congress had good reason to confer greater dis-

cretion on EPA under Section 316(b) than under Sec-

tions 301 and 306. Section 316(b) is unique among the

CWA’s provisions in that it governs the intake of water,

as opposed to the discharge of pollutants. Because “in-

take structures are in a class by themselves,” River-

keeper I, 358 F.3d at 193, there is no reason to presume

that the same standards that govern the discharge of

pollutants should also govern the intake of water. In-

deed, as the court of appeals observed, “Section 316(b)

is something of an afterthought, having been added by

the conference committee without substantive com-

ment.” Jd. at 186n.12. Thus, as the Second Circuit ex-

plained in Riverkeeper I, the “brevity” of Section 316(b),

combined with the “paucity of legislative history, when

measured against the volumes of drafts and speeches

devoted to other aspects of the 1972 amendments,” sug-

gests that Congress “desire[d] to delegate significant

rulemaking authority to the Agency.” /bid.

Moreover, what little legislative history there is sup-

ports EPA’s interpretation. A legislator explained that

“(t]he reference here to ‘best technology available’ is

intended to be interpreted to mean the best technology

available commercially at an economically practicable

cost.” 118 Cong. Rec. 33,762 (1972) (statement of Rep.

Clausen) (emphasis added). Even the court of appeals

acknowledged that “practicable” connotes cost-benefit

considerations. Pet. App. 30a-31a.

c. The court of appeals relied on what it believed to

be a clear intent on the part of Congress to abolish cost-

benefit analysis after 1989 because, in the court’s view,

EPA may not undertake such analysis in determining

either BAT or BADT, and BAT replaced BPT in 1989.

Pet. App. 20a-23a. As discussed above, Congress set

forth lists of factors that EPA “shall” consider in deter-

mining BAT and BADT. 33 U.S.C. 1314(b)(1)(B); 33

U.S.C. 1316(b)(1)(B); see pp. 19-21, supra. Without ex-

planation, the court of appeals treated those lists as set-

ting forth the only factors that EPA “could consider.”

Pet. App. 2la. That interpretation is contradicted by the

statute itself with respect to BAT, because Section

304(b)(2)(B), after identifying certain specific factors

that EPA “shall” take into account, also authorizes con-

sideration of “such other factors as the Administrator

deems appropriate.” 33 U.S.C. 1314(b)(2)(B).

Assuming for the sake of argument that cost-benefit

analysis is not one of the other factors that EPA may

consider in determining BAT, however, the court of ap-

peals’ conclusion does not follow. Cf. National Crushed

Stone, 449 U.S. at 71. Even if no Section 301 or 306 ef-

fluent limitations could be based in part on cost-benefit

analysis after 1989, that would manifest only an intent

to preclude cost-benefit analysis for discharge limita-

tions under Sections 301 and 306; it would not unambig-

uously reflect an intent to preclude cost-benefit analysis

for intake limitations under the different Section 316(b)

standard.

Moreover, the court of appeals erred in assuming

that all Section 301 effluent limitations after 1989 are

BAT limitations. As discussed above, the BAT standard

is inapplicable to conventional pollutants, which are gen-

erally governed instead by the BCT standard. 33 U.S.C.

1311(b)(2)(E). In determining BCT, SPA must consider

“the reasonableness of the relationship between the

costs of attaining a reduction in effluents and the efflu-

ent reduction benefits derived.” 33 U.S.C. 1314(b)(4)(B).

If the incremental costs of more stringent technologies

are not reasonable in light of their incremental benefits,

EPA will set BCT effluent limitations at the BPT level.

51 Fed. Reg. 24,976 (1986). Thus, since 1989, EPA has

continued to adopt BPT standards for some conventional

pollutants. See Chemical Mfrs. Ass’n v. United States

EPA, 870 F.2d 177, 206-207 (5th Cir.), decision clarified

on reh’g by 885 F.2d 253 (1989), cert. denied, 495 U.S.

910 (1990). And Congress authorized EPA to set efflu-

ent limitations for certain non-conventional pollutants at

a level less stringent than BAT but at least as stringent

as BPT. 33 U.S.C. 1311(g). The court of appeals there-

fore erred in assuming that the BAT standard governs

all Section 301 effluent limitations after 1989.

Nor is there any basis for the court of appeals’ con-

clusion that the Act unambiguously requires EPA to

treat BTA as being more equivalent to BAT and BADT

than to BPT. The court of appeals stated that BTA is

“linguistically similar” to BAT but not BPT. Pet. App.

23a. But BTA, BPT, and BAT all include the terms

“best,” “technology,” and “available,” and neither BPT

nor BAT goes on to consider minimizing adverse envi-

ronmental impacts, as BTA does. See 33 U.S.C.

1311(b)(1)(A) and (2)(A). The court of appeals suggested

that the BPT standard is inapposite because the word

“practicable” appears in BPT but not BTA. Pet. App.

3la. One could argue with equal force, however, that

BAT is inapposite because the phrase “economically

achievable” appears in BAT but not BTA. Accordingly,

the court of appeals erred in concluding that the Act

unambiguously treats BTA like BAT (but not BPT) for

this purpose. The only sensible conclusion one can draw

from the differences in jargon used by Congress is that

all of the different “best” standards are indeed different

and susceptible to differing interpretations in their own

right, such that none of the others controls the meaning

of BTA.

The BADT standards promulgated under Section 306

provide a poor analogy for an additional reason: they

govern only new sources, while Section 316(b) governs

both new and existing sources. See 33 U.S.C.

1316(b)(1)(B). Congress generally imposes stricter re-

quirements on new sources because it is generally more

feasible and less expensive for technology to be installed

in new sources when they are first being built than for

existing facilities to be reconfigured to incorporate that

technology. See, e.g., CPC Int'l, Inc. v. Train, 540 F.2d

1329, 1341 (8th Cir. 1976), cert. denied, 480 U.S. 966

(1977); American Iron & Steel Inst. v. EPA, 526 F.2d

1027, 1058 (3d Cir. 1975), amended, 560 F.2d 589 (1977).

The applicability of Section 316(b)’s BTA standard to

both new and existing sources demonstrates not only

that the BADT analogy is inapposite, but also that flexi-

bility is needed in the application of the BTA standard.

Section 316(b)’s broader coverage also provides another

basis for Congress’s decision to confer greater discre-

tion on EPA to implement Section 316(b) than to imple-

ment the Section 301 and 306 standards.

C. The Court Of Appeals Usurped EPA’s Discretion By Im-

posing Extra-Textual Constraints On EPA’s Consider-

ation Of Various Factors

Because Section 316(b) does not “directly [speak] to

the precise question at issue,” Chevron, 467 U.S. at 842,

and Congress granted EPA broad rulemaking authority

to administer the Act, see 33 U.S.C. 1361(a), EPA’s rea-

sonable interpretation of the ambiguous statutory text

is entitled to deference, Chevron, 467 U.S. at &43.

EP4A’s authority includes “the formulation of policy and

the making of rules to fill any gap left, implicitly or ex-

plicitly, by Congress.” Jbid. (quoting Morton v. Ruiz,

415 U.S. 199, 231 (1974)).

EPA has long construed Section 316(b) to permit

consideration of the relationship between costs and ben-

efits. Cf. Barnhart v. Walton, 535 U.S. 212, 219-220

(2002). As early as 1977, EPA issued a permitting deci-

sion and a General Counsel opinion that explained that,

while Section 316(b) does not require a formal cost-ben-

efit analysis, it would not be “reasonable to interpret

Section 316(b) as requiring use of technology whose cost

is wholly disproportionate to the environmental benefit

to be gained.” In re Pub. Serv. Co. of N.H. (Seabrook

Station, Units 1 and 2), No. 76-7, 1977 WL 22370

(E.P.A. June 10, 1977), remanded on other grounds, 572

F.2d 872 (1st Cir. 1978); accord Jn re Cent. Hudson Gas

& Elec. Corp., Op. EPA Gen. Counsel, NPDES No. 63,

1977 WL 28250, at *8 (E.P.A. July 29, 1977). Thus, the

legal framework followed for more than 30 years has

provided for EPA and state permitting authorities to

consider the relationship between costs and benefits to

at least that extent in making individual permitting deci-

sions. See, e.g., /n re Pub. Serv. Co. of N.H. (Seabrook

Station, Units 1 and 2), No. 76-7, 1978 WL 21140

(E.P.A. Aug. 4, 1978) (finding that an alternative’s costs

would be wholly disproportionate to its benefits), aff’d,

Seacoast Anti-Pollution League v. Costle, 597 F.2d 306,

311 (1st Cir. 1979) (upholding the agency’s consideration

of costs); C.A. App. 492 (EPA determination, as part of

1988 permitting decision, that closed-cycle cooling tow-

ers were not BTA for a facility because the costs would

he “wholly disproportionate to the environmental bene-

fit”); id. at 351 (EPA determination, as part of 1986 per-

mitting decision, that an alternative was not BTA be-

cause its costs were “wholly disproportionate to antici-

pated benefits”); J.A. 140 (describing “measures that

have been required” by EPA when other technologies

would have “wholly disproportionate” costs).

While the court of appeals recited deference princi-

ples, Pet. App. 16a-17a, the court sharply departed from

those principles. The degree of that departure is under-

scored not only by the implausibility of the court’s con-

tention that Section 316(b) unambiguously precludes

consideration of the relationship between costs and ben-

efits, but also by the extent to which the court attempted

to micro-manage EPA’s decisionmaking by establishing

rules that cannot be found anywhere in the Act. The

court concluded, for example, that EPA may consider

costs as part of “cost-effectiveness” but not “cost-bene-

fit” analysis—terms that appear nowhere in Section

316(b). See zd. at 24a, 26a. After consulting the defini-

tion of “cost-effectiveness” found in an OMB circular

that does not purport to interpret Section 316(b), the

court proclaimed that EPA could adopt a significantly

cheaper technology that would save 99-101 fish instead

of 100-103 fish. Jd. at 22a-23a & n.10, 27a. While it is

not clear what result the court of appeals would reach if

five or ten additional fish were potentially affected in-

stead of one or two, the point for present purposes is

that the court of appeals’ approach contravenes the prin-

ciples of Chevron by usurping the agency’s role of con-

struing and filling in gaps in an ambiguous statute. As

this Court has made clear, “a court may not substitute

its own construction of a statutory provision for a rea-

sonable interpretation made by the administrator of an

agency.” Chevron, 467 U.S. at 844.

Indeed, by permitting the agency to weigh costs

against at least one or two fish, the court of appeals es-

sentially permitted EPA to consider the relationship

between costs and benefits, but only in the most extreme

cases. Even on its own terms, therefore, the court of

appeals’ decision lacks a principled grounding in the

statutory text, because nothing in the Act unambigu-

ously permits such consideration but limits it in the

manner the court of appeals imposed.

Moreover, the court of appeals agreed to let EPA

consider other practical factors, such as energy effi-

ciency and countervailing environmental effects. Pet.

App. 26a-27a n.12. While those factors are important,

the lines drawn by the court of appeals are by no means

required by the Act. The statutory standard makes no

more reference to a technology’s energy efficiency than

to the relationship between costs and benefits. Indeed,

energy efficiency could be viewed as a cost issue, be-

cause a power plant’s less efficient operation due to the

use of new technology increases the cost of producing

the same amount of energy. Yet the court of appeals

permitted EPA to weigh energy efficiency but not costs

against benefits.

The court of appeals also was of the view that BTA

_must be “technology-driven,” and that a standard se-

lected based in part on cost-effectiveness analysis (or

energy efficiency) is technology-driven, while a standard

based in part on cost-benefit analysis is not. Pet. App.

24a. There is no statutory basis for those distinctions.

Once one recognizes (as the court of appeals did) that

EPA has discretion to consider factors other than tech-

nology, the Act provides no basis for the court of ap-

peals’ picking and choosing among such factors, espe-

cially among factors that FPA is expressly required to

consider under one or more of the cross-referenced

standards in Sections 301 and 306. That is especially

true with respect to cost-benefit analysis. Section 316(b)

does not require the use of technology for technology’s

sake. Instead, it expressly looks to benefits by requiring

the best technology available for minimizing adverse

environmental impact. Id. at 157a, 249a-250a. And, as

discussed above, the BTA standard and all of the cross-

referenced provisions in Sections 301 and 306 authorize

consideration of costs. See pp. 15-21, supra. As long as

EPA is considering both costs and benefits, nothing in

the Act prohibits the agency from considering the rela-

tionship between the two.

D. There Is No Basis For Applying An Artificial Presump-

tion Against Consideration Of The Relationship Be-

tween Costs And Benefits

The court of appeals turned normal rules of statutory

construction and Chevron deference on their head by

reasoning that, ii Congress had intended to permit cost-

benefit analysis, it would have clearly said so. See Pet.

App. 25a. There is no logical or precedential basis for

such a presumption against cost-benefit analysis. But

even if there were, it would not apply in the context of

this case, where Congress intended to confer broad au-

thority on the agency and expressly cross-referenced

sections that require cost-benefit analysis.

a. Congress’s silence on whether an agency may

consider the relationship between costs and benefits

provides no basis for inferring an unambiguous legisla-

tive prohibition against such consideration. “({SJilence,

after all, normally creates ambiguity. It does not re-

solve it.” Barnhart, 535 U.S. at 218. And in Chevron,

this Court admonished that, “if a statute is silent * * *

with respect to the specific issue, the question for the

Court is whether the agency’s answer is based on a per-

missible construction of the statute.” 467 U.S. at 843.

On unusual occasions, this Court has erected a plain

statement rule“in order to avoid constitutional difficul-

ties, e.g., Gregory v. Ashcroft, 501 U.S. 452, 460-461, 464 |

(1991), or because of the unlikelihood that Congress

would have intended a result, e.g., Spector v. Norwegian

Cruise Line Lid., 545 U.S. 119, 131-132 (2005). But

there is nothing inherently suspect about weighing costs

and benefits. Numerous environmental and other stat-

utes require or permit such analysis. See, e.g., Matthew

D. Adler & Erie A. Posner, Rethinking Cost-Benefit

Analysis, 109 Yale L.J. 165, 167 (1999). And in every-

day life, people routinely determine whether an item is

worth its cost. See pp. 13-14, supra. Thus, “other things

being equal, [the Court] should read silences or ambigu-

ities in the language of regulatory statutes as permit-

ting, not forbidding, this type of rational regulation.”

Whitman v. American Trucking Ass’ns, Inc., 531 U.S.

457, 490 (2001) (Breyer, J., concurring in part and in the

judgment).

The court of appeals erred in reading American Tex-

tile Manufacturers Institute v. Donovan, 452 U.S. 490,

510 (1981), as erecting a presumption against consider-

ation of the relationship between costs and benefits. See

Pet. App. 24a-25a. Donovan upheld the Occupational

Safety and Health Administration’s determination that

it was not required to undertake cost-benefit analysis

under a different statute. Donovan, 452 U.S. at 506,

541. Moreover, Donovan predated Chevron. Thus,

while Donovan stated that, “[w]hen Congress has in-

tended that an agency engage in cost-benefit analysis, it

has clearly indicated such intent on the face of the stat-

ute,” id. at 510-511, the Donovan Court did not have

occasion to address the question whether silence unam-

biguously precludes consideration of costs and benefits.

Indeed, the dissenting opinion in Donovan construed the

Court’s opinion as “suggest[ing] * * * that the Act

permits the Secretary to undertake [a cost-benefit] anal-

ysis if he so chooses.” /d. at 544 (Rehnquist, J., dissent-

ing).

More recent court of appeals decisions applying

Chevron principles of statutory construction have con-

strued congressional silence as permitting cost-benefit

analysis. See, e.g., Sierra Club v. United States EPA,

314 F.3d 735, 744 (5th Cir. 2002); Michigan v. United

States EPA, 213 F.3d 663, 678-679 (D.C. Cir. 2000) (cit-

ing cases), cert. denied, 532 U.S. 903, and 532 U.S. 904

(2001). The District of Columbia Circuit, for example,

has explained that “(i]t is only where there is clear con-

gressional intent to preclude consideration of cost that

we find agencies barred from considering costs.” Michi-

gan, 213 F.3d at 678 (internal quotation marks and cita-

tion omitted). The court of appeals erred by relying on

a contrary presumption.

Riverkeeper’s reliance (Br. in Opp. 25-26) on Whit-

man is also misplaced. In that case, the Court agreed

with EPA that the Clean Air Act (CAA), 42 U.S.C. 7401

et seg., unambiguously precludes consideration of costs

in setting National Ambient Air Quality Standards

(NAAQS). 531 U.S. at 464-465. The Court stated that,

because NAAQS are “the engine that drives” much of

the CAA, EPA could consider costs only if Congress had

provided a clear textual commitment of such authority

to the agency. /d. at 467-468. The Court then agreed

with EPA that the text of the CAA—which requires

EPA to set NAAQS at levels “requisite to protect the

19a

7. 40C.F.R. 125.94 provides in pertinent part:

How will requirements reflecting best technology avail-

able for minimizing adverse environmental impact be

established for my Phase II existing facility?

(a) Compliance alternatives. You must select and

implement one of the following five alternatives for es-

tablishing best technology available for minimizing ad-

verse environmental impact at your facility:

(1)(Gi) You may demonstrate to the Director that you

have reduced, or will reduce, your flow commensurate

with a closed-cycle recirculating system. In this case,

you are deemed to have met the applicable performance

standards and will not be required to demonstrate fur-

ther that your facility meets the impingement mortality

and entrainment performance standards specified in

paragraph (b) of this section. In addition, you are not

subject to the requirements in §§ 125.95, 125.96, 125.97,

or 125.98. However, you may still be subject to any

more stringent requirements established under para-

graph (e) of this section; or

(ii) You may demonstrate to the Director that you

have reduced, or will reduce, your maximum through-

screen design intake velocity to 0.5 ft/s or less. In this

case, you are deemed to have met the impingement mor-

tality performance standards and will not be required to

demonstrate further that your facility meets the perfor-

mance standards for impingement mortality specified in

paragraph (b) of this section and you are not subject to

the requirements in §§ 125.95, 125.96, 125.97, or 125.98

as they apply to impingement mortality. However, you

are still subject to any applicable requirements for en-

trainment reduction and may still be subject to any

20a

more stringent requirements established under para-

graph (e) of this section.

(2) You may demonstrate to the Director that your

existing design and construction technologies, opera-

tional measures, and/or restoration measures meet the

performance standards specified in paragraph (b) of this

section and/or the restoration requirements in para-

graph (c) of this section.

(3) You may demonstrate to the Director that you

have selected, and will install and properly operate and

maintain, design and construction technologies, opera-

tional measures, and/or restoration measures that will,

in combination with any existing design and construction

technologies, operational measures, and/or restoration

- Measures, meet the performance standards specified in

paragraph (b) of this section and/or the restoration re-

quirements in paragraph (c) of this section;

(4) You may demonstrate to the Director that you

have installed, or will install, and properly operate and

maintain an approved design and construction technol-

ogy in accordance with § 125.99(a) or (b); or

(5) You may demonstrate to the Director that you

have selected, installed, and are properly operating and

maintaining, or will install and properly operate and

maintain design and construction technologies, opera-

tional measures, and/or restoration measures that the

Director has determined to be the best technology avail-

able to minimize adverse environmental impact for your

facility in accordance with paragraphs (a)(5)(i) or (ii) of

this section.

(i) Ifthe Director determines that data specific to

your facility demonstrate that the costs of compliance

2la

under alternatives in paragraphs (a)(2) through (4) of

this section would be significantly greater than the costs

considered by the Administrator for a facility like yours

in establishing the applicable performance standards in

paragraph (b) of this section, the Director must make a

site-specific determination of the best technology avail-

able for minimizing adverse environmental impact. This

determination must be based on reliable, scientifically

valid cost and performance data submitted by you and

any other information that the Director deems appropri-

ate. The Director must establish site-specific alterna-

tive requirements based on new and/or existing design

and construction technologies, operational measures,

and/or restoration measures that achieve an efficacy

that is, in the judgment of the Director, as close as prac-

ticable to the applicable performance standards in para-

graph (b) of this section, without resulting in costs that

are significantly greater than the costs considered by

the Administrator for a facility like yours in establishing

the applicable performance standards. The Director’s

site-specific determination may conclude that design and

construction tei .:nologies, operational measures, and/or

restoration measures in addition to those already in

place are not justified because of the significantly

greater costs. To calculate the costs considered by the

Administrator for a facility like yours in establishing the

applicable performance standards you must:

(A) Determine which technology the Administrator

modeled as the most appropriate compliance technology

for your facility;

(B) Using the Administrator’s costing equations,

calculate the annualized capital and net operation and

22a

maintenance (O & M) costs for a facility with your de-

sign intake flow using this technology;

ciated with net construction downtime that the Adminis-

trator modeled for your facility to install this technol-

ogy;

(D) Determine the annualized pilot study costs that

the Administrator modeled for your facility to test and

optimize this technology;

(E) Sum the cost items in paragraphs (a)(5)(i)(B),

(C), and (D) of this section; and

(F) Determine if the performance standards that

form the basis of these estimates (7.¢e., impingement

mortality reduction only or impingement mortality and

entrainment reduction) are applicable to your facility,

and if necessary, adjust the estimates to correspond to

the applicable performance standards.

(ii) If the Director determines that data specific to

your facility demonstrate that the costs of compliance

under alternatives in paragraphs (a)(2) through (4) of

this section would be significantly greater than the ben-

efits of complying with the applicable performance stan-

dards at your facility, the Director must make a

site-specific determination of best technology available

for minimizing adverse environmental impact. This de-

termination must be based on reliable, scientifically

valid cost and performance data submitted by you and

any other information the Director deems appropriate.

The Director must establish site-specific alternative

requirements based on new and/or existing design and

construction technologies, operational measures, and/or

restoration measures that achieve an efficacy that, in the

23a

judgment of the Director, is as close as practicable to

the applicable performance standards in paragraph (b)

of this section without resulting in costs that are signifi-

cantly greater than the benefits at your facility. The Di-

rector’s site-specific determination may conclude that

design and construction technologies, operational mea-

sures, and/or restoration measures in addition to those

already in place are not justified because the costs would

be significantly greater than the benefits at your facility.

» (b) National performance standards.—

(1) Impingement mortality performance .andards.

If you choose compliance alternatives in paragraphs

(a)(2), (a)(3), or (a)(4) of this section, you must reduce

impingement mortality for all life stages of fish and

shellfish by 80 to 95 percent from the calculation base-

line.

(2) Entrainment performance standards. If you

choose compliance alternatives in paragraphs (a)(1)(ii),

(a)(2), (a)(3), or (a)(4) of this section, you must also re-

duce entrainment of all life stages of fish and shellfish

by 60 to 90 percent from the calculation baseline if:

(i) Your facility has a capacity utilization rate of 15

percent or greater, and

(ii)(A) Your facility uses cooling water withdrawn

from a tidal river, estuary, ocean, or one of the Great

Lakes; or

(B) Your facility uses cooling water withdrawn from

a freshwater river or stream and the design intake flow

of your cooling water intake structures is greater than

five percent of the mean annual flow.

24a

(3) Additional performance standards for facilities

withdrawing from a lake (other than one of the Great

Lakes) or a reservoir. If your facility withdraws cooling

water from a lake (other than one of the Great Lakes) or

a reservoir and you propose to increase the design in-

take flow of cooling water intake structures it uses, your

increased design intake flow must not disrupt the natu-

ra) thermal stratification or turnover pattern (where

present) of the source water, except in cases where the

disruption does not adversely affect the management of

fisheries. In determining whether any such disruption

does not adversely affect the management of fisheries,

you must consult with Federal, State, or Tribal fish and

wildlife management agencies).

(4) Use of performance standards for site-specific

determinations of best technology available. The per-

formance standards in paragraphs (b)(1) through (3) of

this section must also be used for determining eligibility

for site-specific determinations of best technology avail-

able for minimizing adverse environmental impact and

establishing site specific requirements that achieve an

efficacy as close as practicable to the applicable perfor-

mance standards without resulting in costs that are sig-

nificantly greater than those considered by the Adminis-

trator for a facility like yours in establishing the perfor-

mance standards or costs that are significantly greater

than the benefits at your facility, pursuant to

§ 125.94(a)(5).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.