The Role of Cost-Benefit Analysis in 316(b) BTA Determinations: The Road Ahead

The U.S. Supreme Court ruled in April 2009 that EPA may use (but was not required to use) cost-benefit analysis in setting standards and issuing permits under Section 316(b) of the Clean Water Act. EPA currently is under a court obligation to issue a proposed 316(b) rule by March 14, 2011 and a final rule by July 27, 2012. This paper/presentation will consider the future role of cost-benefit analysis in making individual Best Technology Available (BTA) determinations, taking into account the forthcoming EPA proposal, experience under the prior “wholly disproportionate” and “significantly greater” tests as well as relevant developments in California and New York. The presentation will consider the following issues:

• Importance of site-specific considerations for costs and benefits as revealed in detailed site-specific assessments;
• Implications of experience under prior EPA and state implementation of 316(b) cost-benefit analysis;
• Implications of the California and New York policies;
• Implications of the willingness-to-pay survey that EPA is intending to develop to assess potential use and non-use benefits; and
• Key issues that arise in implementing cost-benefit analysis in 316(b) BTA determinations.