Photo: Mike Killion
The Surfrider Foundation and our partners are celebrating a win in court that will force the U.S. Environmental Protection Agency to make better decisions when it comes to setting water pollution standards for industrial facilities.
In 2023, Surfrider and roughly a dozen partners filed a lawsuit against the EPA, challenging the agency’s failure to comply with their duty to ensure that technology-based standards for industrial polluters like petroleum refineries, plastics facilities, and pesticides plants reflect the reality of today’s available technology.
The federal Clean Water Act requires that the EPA set and regularly revise national industry-specific wastewater regulations based on demonstrated wastewater treatment technologies. These technology-based standards essentially require that industrial dischargers like petroleum refineries, pesticide manufacturers, and plastics facilities utilize the best available technology to minimize their pollution discharges. So far, the EPA has created these standards for 59 industrial categories, including petroleum refineries, plastics facilities, and pesticides plants. However, many of these are seriously out of date - EPA last revised 39 of these categories more than 30 years ago, and 17 of them have not been revised since the 1970s. Additionally, EPA failed to consider important pollution information when it declined to revise standards for “indirect dischargers” which discharge polluted wastewater into publicly owned treatment works. This all means more pollution getting into our waterways and impacting public health and recreation, despite technological improvements.
Represented by Environmental Integrity Project, Surfrider and our co-plaintiffs which include the Center for Biological Diversity, Clean Water Action, the Waterkeeper Alliance, Food & Water Watch, Environment America, Bayou City Waterkeeper, Black Warrior Riverkeeper, Healthy Gulf, San Antonio Bay Estuarine Waterkeeper, and San Francisco Baykeeper, presented arguments at the U.S. District Court of Appeals for the Ninth Circuit. Arguments included that EPA’s decision about which categories’ rules to revise relied on an analysis and factors unrelated to Clean Water Act mandates, ignored data regarding known pollutants, and ignored significant evidence demonstrating that pollution reduction technologies have significantly advanced since several of the rules categories were last revised.
While recognizing that EPA has some discretion to prioritize the revision of certain industrial categories over others by using a hazard-based approach, the Court’s June 18th decision recognizes that this discretion is not unlimited, and agreed with Surfrider that EPA’s approach fell short of the law. This is, in part, because: (1) EPA did not consider advances in pollution treatment technology, and (2) EPA impermissibly ignored evidence of pollutants when determining the purported pollution reduction benefits from revising certain categories, including pretreatment standards for indirect dischargers. Therefore, the Court sent the decision back to the EPA to reconsider whether updating the standards is appropriate, or to provide a fuller explanation showing that its decision is not arbitrary and capricious. The EPA will have to follow the court’s opinion which recognizes several problems with how EPA made its initial decision, and supports the need to update the standards.
Namely, EPA must consider developments in pollution control technology. “On a […] fundamental level, in adopting [the Clean Water Act’s] technology-based approach, Congress contemplated a system of gradually tightening technology-based limitations that would become more stringent as pollution control technologies improved.”
Second, EPA must also consider available data regarding pollutants discharged by indirect dischargers.
Finally, EPA must increase the scope of the standards to include known pollutants and waste streams, such as nutrients and stormwater runoff, that are not already covered (for example, because they’re unregulated), or justify its decision not to. “Fundamentally, the existence of unregulated pollutants would seemingly be central to any attempt to determine where a rulemaking would “produce the most significant benefits.” […] Just as some consideration of the extent to which a [rule] is out of date is necessary to determine the benefits of revision, so too some consideration of the extent to which [a rule] is underinclusive is also necessary.” EPA must give at least some consideration to this aspect of the problem to comply with the law – and specifically, for example, must consider the role that stormwater runoff plays in pollution from the plastics industry.
To learn more about this important case and win, please see Environmental Integrity Project’s website, here.
Staley Prom is an in-house attorney for the Surfrider Foundation, providing legal guidance to the organization and its 80 grassroots chapters across the U.S., on clean water, public beach access, coastal preservation, ocean protection, and plastic pollution related matters. Staley also performs general counsel duties related to 501(c)(3) nonprofit organization and advocacy related compliance, and manages Surfrider’s legal internship program. Prior to joining Surfrider full time in 2015, Staley practiced municipal law at Green, De Bortnowsky & Quintanilla, where she served as a Deputy City Attorney for the cities of Rancho Mirage, Cathedral City, and Victorville, California. She has held internships at the Natural Resources Defense Council, the California Attorney General’s Land Law Section, and Surfrider. Staley is an advisor to the Executive Committee of the Environmental Law Section of the California Lawyers Association, having served on the Executive Committee between 2018 and 2022. In this role, Staley provided leadership on the Section’s sustainability efforts, and contributed to the Student Environmental Law Negotiations Competition and Environmental Law Writing Competition. Staley holds a J.D. from UCLA School of Law, and graduated summa cum laude from the University of Florida with degrees in business administration and communications. She is originally from Jacksonville, Florida, and now resides in the foothills of the Santa Monica Mountains where she enjoys spending time with her family in nature and at the beach.