[Federal Register Volume 69, Number 170 (Thursday, September 2, 2004)]
[Notices]
[Pages 53705-53721]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-20040]
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ENVIRONMENTAL PROTECTION AGENCY
[OW-2003-0074; FRL-7809-1]
RIN 2040-AD92
Notice of Availability of 2004 Effluent Guidelines Program Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of availability of final 2004 effluent guidelines
program plan.
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SUMMARY: Today's notice describes EPA's 2004 annual review of existing
effluent guidelines under CWA section 304(b) and presents EPA's final
2004 Effluent Guidelines Program Plan under CWA section 304(m). Under
the Clean Water Act (CWA), EPA establishes technology-based national
regulations, termed ``effluent guidelines,'' to reduce pollutant
discharges from categories of industrial facilities to waters of the
United States. Section 304(m) of the Clean Water Act requires EPA to
publish an Effluent Guidelines Program Plan every two years after
allowing for public review and comment on the plan prior to final
publication. The Agency published the preliminary Effluent Guidelines
Program Plan on December 31, 2003 (68 FR 75515), and public comments on
the preliminary plan are discussed in today's notice and in the docket
accompanying the plan. After reviewing additional data and considering
public comments, EPA is publishing its final 2004 Effluent Guidelines
Program Plan. In this Plan, EPA identifies four industries for effluent
guidelines rulemaking. Two of these industries--Airport Deicing
Operations and Drinking Water Supply and Treatment--are not subject to
existing effluent guidelines. The other two industries--Vinyl Chloride
Manufacturing, which is part of the Organic Chemicals, Plastics, and
Synthetic Fibers point source category, and Chlor-Alkali manufacturing,
which is part of the Inorganic Chemicals point source category--are
subject to existing effluent guidelines, which EPA is identifying for
possible revision. EPA expects to combine its analysis of the OCPSF and
Inorganic Chemicals effluent guidelines into one rulemaking. Today's
notice describes the schedule for these effluent guidelines
rulemakings. This notice also describes EPA's preliminary thoughts
concerning its 2005 annual review under CWA section 304(b) and solicits
comments, data and information to assist EPA in performing that review.
ADDRESSES: Submit your comments, data and information for the 2005
annual review, identified by Docket ID No. OW-2004-0032, by one of the
following methods:
A. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
B. Agency Web Site: http://www.epa.gov/edocket. EDOCKET, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments, data and information. Follow the on-line
instructions for submitting comments.
C. E-mail: [email protected].
D. Mail: Water Docket, Environmental Protection Agency, Mailcode:
4101T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention
Docket ID No. OW-2004-0032. Please include a total of 3 copies.
E. Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID
No. OW-2004-0032. Such deliveries are only accepted during the Docket's
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments, data and information to Docket
ID No. OW-2004-0032. EPA's policy is that all comments, data and
information received will be included in the public docket without
change and may be made available online at http://www.epa.gov/edocket,
including any personal information provided, unless the material
includes information claimed to be Confidential Business Information
(CBI) or other information whose disclosure is restricted by statute.
Do not submit information that you consider to be CBI or otherwise
protected through EDOCKET, http://www.regulations.gov, or e-mail. The
EPA EDOCKET and the federal regulations.gov websites are ``anonymous
access'' systems, which means EPA will not know your identity or
contact information unless you provide it in the body of your comment.
If you send an e-mail comment directly to EPA without going through
EDOCKET or regulations.gov, your e-mail address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the Internet. If you submit an
electronic comment, EPA recommends that you include your name and other
contact information in the body of your comment and with any disk or
CD-ROM you submit. If EPA cannot read your comment due to technical
difficulties and cannot contact you for clarification, EPA may not be
able to consider your comment. Electronic files should avoid the use of
special characters, any form of encryption, and be free of any defects
or viruses. For additional information about EPA's public docket visit
EDOCKET on-line or see the Federal Register of May 31, 2002 (67 FR
38102). For additional instructions on obtaining access to comments, go
to Section I.B of the SUPPLEMENTARY INFORMATION section of this
document.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is
[[Page 53706]]
not publicly available, i.e., CBI or other information whose disclosure
is restricted by statute. Certain other material, such as copyrighted
material, is not placed on the Internet and will be publicly available
only in hard copy form. Publicly available docket materials are
available either electronically in EDOCKET or in hard copy at the Water
Docket, EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744, and the telephone
number for the Water Docket is (202) 566-2426.
FOR FURTHER INFORMATION CONTACT: Mr. Carey A. Johnston at (202) 566-
1014 or [email protected], or Mr. Tom Wall at (202) 566-1060 or
[email protected].
SUPPLEMENTARY INFORMATION: The outline of today's notice follows.
I. General Information
II. Legal Authority
III. What is the Purpose of Today's Federal Register Notice?
IV. Background
V. EPA's 2004 Annual Review of Effluent Guidelines Promulgated Under
CWA Section 304(b)
VI. EPA's 2005 Review of Effluent Guidelines Promulgated Under CWA
Section 304(b)
VII. The 2004 Effluent Guidelines Program Plan Under Section 304(m):
Identification of Point Source Categories and Schedule for Future
Effluent Guidelines Rulemakings
I. General Information
A. Regulated Entities
Today's notice does not contain regulatory requirements. Rather,
today's notice describes the Agency's 2004 annual review of existing
effluent guidelines under CWA section 304(b) and the 2004 Effluent
Guidelines Plan under CWA section 304(m) (``Plan''). As required by CWA
section 304(m), the Plan presents a schedule for EPA's annual review of
existing effluent guidelines under CWA section 304(b) and a schedule
for the possible revision of two of those guidelines; it identifies
industries for which EPA has not promulgated effluent guidelines but
may decide to do so through rulemaking; and it establishes schedules
for these rulemakings.
B. How Can I Get Copies of Related Information?
1. Docket
EPA has established an official public docket for the Agency's 2004
annual review of existing effluent guidelines under CWA section 304(b)
and the 2004 Effluent Guidelines Plan under CWA section 304(m) under
Docket ID No. OW-2003-0074. The official public docket consists of the
documents specifically referenced in this action, any public comments
received, and other information related to this action. Although a part
of the official docket, Confidential Business Information (CBI) or
other information whose disclosure is restricted by statute is not
included in the materials available to the public. The official public
docket is the collection of materials that is available for public
viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The EPA
Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
for the Public Reading Room is (202) 566-1744, and the telephone number
for the Water Docket is (202) 566-2426.
2. Electronic Access
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/. An electronic version of the public
docket is available through EPA's electronic public docket and comment
system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to view public comments, access the index listing of the
contents of the official public docket, and to access those documents
in the public docket that are available electronically. Although not
all docket materials may be available electronically, you may still
access any of the publicly available docket materials through the
docket facility identified in section I.B.1. Once in the system, select
``search,'' then key in the appropriate docket identification number.
II. Legal Authority
Today's notice is published under the authority of the CWA, 33
U.S.C. 1251, et seq., and in particular sections 301(d), 304(b),
304(g), 304(m), and 306, 33 U.S.C. 1311(d), 1314(b), 1314(g), 1314(m),
and 1316.
III. What Is the Purpose of Today's Federal Register Notice?
Today's Federal Register notice consists of three parts. First, it
describes EPA's 2004 annual review of the effluent guidelines that EPA
has promulgated under CWA section 304(b). Second, it describes EPA's
plans for its 2005 annual review of existing effluent guidelines.
Third, as required by CWA section 304(m), this notice presents EPA's
final 2004 Effluent Guidelines Program Plan.
IV. Background
A. What Are Effluent Guidelines?
The CWA directs EPA to promulgate effluent limitations guidelines
and standards that reflect pollutant reductions that can be achieved by
categories or subcategories of industrial point sources using specific
technologies. See CWA sections 301(b)(2), 304(b), 306, 307(b), and
307(c). For point sources that introduce pollutants directly into the
waters of the United States (direct dischargers), the effluent
limitations guidelines and standards promulgated by EPA are implemented
through National Pollutant Discharge Elimination System (NPDES)
permits. See CWA sections 301(a), 301(b), and 402. For sources that
discharge to publicly owned treatment works (POTWs) (indirect
dischargers), EPA promulgates pretreatment standards that apply
directly to those sources and are enforced by POTWs and State and
Federal authorities. See CWA sections 307(b) and (c).
1. Best Practicable Control Technology Currently Available (BPT)--CWA
Sections 301(b)(1)(A) & 304(b)(1)
EPA defines Best Practicable Control Technology Currently Available
(BPT) effluent limitations for conventional, toxic, and non-
conventional pollutants. Section 304(a)(4) designates the following as
conventional pollutants: biochemical oxygen demand (BOD5),
total suspended solids, fecal coliform, pH, and any additional
pollutants defined by the Administrator as conventional. The
Administrator designated oil and grease as an additional conventional
pollutant on July 30, 1979. See 44 FR 44501 (July 30, 1979). EPA has
identified 65 pollutants and classes of pollutants as toxic pollutants,
of which 126 specific substances have been designated priority toxic
pollutants. See Appendix A to part 423. All other pollutants are
considered to be non-conventional.
In specifying BPT, EPA looks at a number of factors. EPA first
considers the total cost of applying the control technology in relation
to the effluent reduction benefits. The Agency also considers the age
of the equipment and facilities, the processes employed and any
required process changes, engineering aspects of the control
technologies, non-water quality
[[Page 53707]]
environmental impacts (including energy requirements), and such other
factors as the EPA Administrator deems appropriate. See CWA Section
304(b)(1)(B). Traditionally, EPA establishes BPT effluent limitations
based on the average of the best performances of facilities within the
industry of various ages, sizes, processes or other common
characteristics. Where existing performance is uniformly inadequate,
BPT may reflect higher levels of control than currently in place in an
industrial category if the Agency determines that the technology can be
practically applied.
2. Best Conventional Pollutant Control Technology (BCT)--CWA Sections
301(b)(2)(E) & 304(b)(4)
The 1977 amendments to the CWA required EPA to identify effluent
reduction levels for conventional pollutants associated with Best
Conventional Pollutant Control Technology (BCT) for discharges from
existing industrial point sources. In addition to considering the other
factors specified in Section 304(b)(4)(B) to establish BCT limitations,
EPA also considers a two part ``cost-reasonableness'' test. EPA
explained its methodology for the development of BCT limitations in
1986. See 51 FR 24974 (July 9, 1986).
3. Best Available Technology Economically Achievable (BAT)--CWA
Sections 301(b)(2)(A) & 304(b)(2)
For toxic pollutants and non-conventional pollutants, EPA
promulgates effluent guidelines based on the Best Available Technology
Economically Achievable (BAT). See CWA Section 301(b)(2)(A), (C), (D) &
(F). The factors considered in assessing BAT include the cost of
achieving BAT effluent reductions, the age of equipment and facilities
involved, the process employed, potential process changes, non-water
quality environmental impacts, including energy requirements, and other
such factors as the EPA Administrator deems appropriate. See CWA
Section 304(b)(2)(B). The technology must also be economically
achievable. See CWA Section 301(b)(2)(A). The Agency retains
considerable discretion in assigning the weight accorded to these
factors. BAT limitations may be based on effluent reductions attainable
through changes in a facility's processes and operations. Where
existing performance is uniformly inadequate, BAT may reflect a higher
level of performance than is currently being achieved within a
particular subcategory based on technology transferred from a different
subcategory or category. BAT may be based upon process changes or
internal controls, even when these technologies are not common industry
practice.
4. New Source Performance Standards (NSPS)--CWA Section 306
New Source Performance Standards (NSPS) reflect effluent reductions
that are achievable based on the best available demonstrated control
technology. New sources have the opportunity to install the best and
most efficient production processes and wastewater treatment
technologies. As a result, NSPS should represent the most stringent
controls attainable through the application of the best available
demonstrated control technology for all pollutants (i.e., conventional,
non-conventional, and priority pollutants). In establishing NSPS, EPA
is directed to take into consideration the cost of achieving the
effluent reduction and any non-water quality environmental impacts and
energy requirements.
5. Pretreatment Standards for Existing Sources (PSES)--CWA Section
307(b)
Pretreatment Standards for Existing Sources (PSES) are designed to
prevent the discharge of pollutants that pass through, interfere with,
or are otherwise incompatible with the operation of publicly-owned
treatment works (POTWs), including sludge disposal methods at POTWs.
Pretreatment standards for existing sources are technology-based and
are analogous to BAT effluent limitations guidelines.
The General Pretreatment Regulations, which set forth the framework
for the implementation of national pretreatment standards, are found at
40 CFR part 403.
6. Pretreatment Standards for New Sources (PSNS)--CWA Section 307(c)
Like PSES, Pretreatment Standards for New Sources (PSNS) are
designed to prevent the discharges of pollutants that pass through,
interfere with, or are otherwise incompatible with the operation of
POTWs. PSNS are to be issued at the same time as NSPS. New indirect
dischargers have the opportunity to incorporate into their plants the
best available demonstrated technologies. The Agency considers the same
factors in promulgating PSNS as it considers in promulgating NSPS.
B. What Are EPA's Review and Planning Obligations Under Sections 304(b)
and 304(m)?
Section 304(b) requires EPA to review effluent guidelines for
existing direct dischargers each year and to revise such regulations as
appropriate. Section 304(b) also specifies factors that EPA must
consider when deciding whether revising an effluent guideline is
appropriate. See Section IV.A. Section 304(m) supplements the core
requirement of section 304(b) by requiring EPA to publish a plan every
two years announcing its schedule for performing this annual review and
its schedule for rulemaking for any effluent guideline selected as a
result of that annual review for possible revision. Section 304(m) also
requires the plan to identify categories of sources discharging non-
trivial amounts of toxic or non-conventional pollutants for which EPA
has not published effluent limitations guidelines under section
304(b)(2) or NSPS under section 306. See CWA section 304(m)(1)(B); S.
Rep. No. 50, 99th Cong., 1st Sess. (1985); WQA87 Leg. Hist. 31.
Finally, under section 304(m), the plan must present a schedule for
promulgating effluent guidelines for industrial categories for which it
has not already established such guidelines, with final action on such
rulemaking required not later than three years after the industrial
category is identified in a final Effluent Guidelines Program Plan. See
CWA section 304(m)(1)(C). EPA is required to publish its Effluent
Guidelines Program Plan for public comment prior to taking final action
on the plan. See CWA section 304(m)(2).
In addition, CWA section 301(d) requires EPA to review every five
years the effluent limitations required by CWA section 301(b)(2) and to
revise them if appropriate pursuant to the procedures specified in that
section. Section 301(b)(2), in turn, requires point sources to achieve
effluent limitations reflecting the application of the best available
technology economically achievable (for toxic pollutants and non-
conventional pollutants) and the best conventional pollutant control
technology (for conventional pollutants), as determined by EPA under
sections 304(b)(2) and 304(b)(4), respectively. For nearly three
decades, EPA has implemented sections 301 and 304 through the
promulgation of effluent limitations guidelines. See E.I. du Pont de
Nemours & Co. v. Train, 430 U.S. 113 (1977). Consequently, as part of
its annual review of effluent limitations guidelines under section
304(b), EPA is also reviewing the effluent limitations they contain,
thereby fulfilling its obligations under section 301(d) and 304(b)
simultaneously.
[[Page 53708]]
C. How Has EPA Met the Requirements of Sections 304(b) and 304(m)?
Since 1992, EPA has performed detailed studies of eleven industrial
activities. See 63 FR 47285, 47288 (Sept. 4, 1998); 61 FR 52582, 52585
(Oct. 7, 1996). EPA also published ten preliminary data summaries in
1989. See 59 FR 44234, 44236-37 (Aug. 26, 1994). Since 1992, EPA has
identified 20 point source categories or classes for new or revised
effluent guidelines. EPA completed a rulemaking process for each
identified point source category or class, and has promulgated new or
revised effluent guidelines for 18 of those point source categories or
classes. EPA has also published a final effluent guidelines program
plan under CWA section 304(m) every even-numbered year since 1990 that
describes these activities. For a list of effluent guidelines
rulemakings conducted by EPA since 1992, see the Docket accompanying
this notice (see DCN 2003-0074).
Since 1992, the content and timing of EPA's 304(m) Plans have been
governed by a consent decree between EPA and the Natural Resources
Defense Council and Public Citizen, Inc. See Natural Resources Defense
Council, et al. v. Leavitt, No. 89-2980 (RCL) (D.D.C. Jan. 31, 1992).
However, since publication of the preliminary Effluent Guidelines Plan
in December 2003, EPA has met all of its obligations under the consent
decree by taking final action in the three remaining effluent
guidelines rulemakings. See Table IV-1. The Court terminated this
consent decree on August 9, 2004. See Natural Resources Defense
Council, et al. v. Leavitt, No. 89-2980 (RCL), slip op. at 1 (D.D.C.
Aug. 9, 2004).
Table IV.--1: Final Three Point Source Categories Governed by 1992 Consent Decree
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Point source category (EPA web CFR Federal Register citation: proposal
sites) part (Date) Final action date
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Meat and Poultry Products [dagger] 432 67 FR 8581........................... Signed February 26, 2004.
(http://www.epa.gov/guide/mpp/). (Feb. 25, 2002)......................
Construction and Development (http:/ [Dagger 67 FR 42644.......................... Signed March 31, 2004.
/www.epa.gov/guide/construction/). ] 450 (June 24, 2002)......................
Aquatic Animal Production (http:// 451 67 FR 57872.......................... Signed June 30, 2004.
www.epa.gov/guide/aquaculture/). (Sept. 12, 2002).....................
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[dagger] Note: EPA changed the title of 40 CFR part 432 from ``Meat Products'' to ``Meat and Poultry Products.''
[Dagger] Note: EPA proposed to add part 450 to Title 40 of the Code of Federal Regulations but withdrew this
proposal in the final action.
V. EPA's 2004 Review of Effluent Guidelines Promulgated Under Section
304(b)
A. What Process Did EPA Use To Review Effluent Guidelines Promulgated
Under CWA Section 304(b)?
1. Background
The annual review obligation created under section 304(b) and
described in section 304(m)(1)(A) applies to effluent guidelines
promulgated under section 304(b). This refers to BPT, BCT and BAT
effluent limitations guidelines codified for different point source
categories at 40 CFR parts 405-471 (representing a total of 56 point
source categories and over 450 subcategories). Consistent with section
304(b) and section 301(d), in 2004, EPA reviewed existing effluent
limitations guidelines and standards for direct dischargers. EPA also
reviewed under CWA section 306 the NSPS promulgated by EPA under that
section. Finally, when EPA reviewed effluent guidelines under section
304(b) for a point source category composed of both direct and indirect
dischargers, EPA also reviewed under CWA section 304(g) the
pretreatment standards EPA had promulgated for that category under CWA
section 307(b) & (c). EPA intends to review the pretreatment standards
for industrial point source categories composed entirely or almost
entirely of indirect dischargers under a separate process under section
304(g).
EPA's annual review of existing effluent guidelines under section
304(b) represents a considerable effort by the Agency to consider the
hazards or risks to human health and the environment from industrial
point source categories. The 2003 and 2004 annual reviews reflect a
lengthy outreach effort to involve stakeholders in the planning
process. In performing its 2004 annual review, EPA carefully considered
all information and data submitted during the public comment period for
the preliminary Effluent Guidelines Program Plan published in December
2003, which discussed EPA's 2003 annual review. EPA reviewed all
industrial sectors and conducted more focused detailed reviews for a
select number of industrial sectors (see DCN 01088, section 1.5). As
noted in the 2004 Effluent Guidelines Program Plan discussed elsewhere
in today's notice, EPA has selected some of these industrial sectors
for an effluent guidelines rulemaking.
As discussed in more detail below, EPA used pollutant loadings
information and technological, economic, and other information in
evaluating whether revising its promulgated effluent guidelines would
be appropriate. EPA also examined the processes and operations of each
category for which EPA had already promulgated effluent guidelines in
order to decide whether it might be appropriate to address (through
additional subcategories) other industrial activities that are similar
in terms of type of operations performed, wastewaters generated, and
available pollution prevention and treatment options. Because issues
associated with such additional subcategories very often are interwoven
with the structure and requirements of the existing regulation, EPA
believes that incorporating its review of these potential subcategories
into its annual review of the larger categories with which they likely
belong is the most efficient way to fulfill its statutory obligations
under section 304(b) and 304(m). This is especially important given the
large number of existing categories and potential additional
subcategories that EPA must review annually.
One example where EPA established effluent guidelines for an
additional subcategory under an existing category is the agricultural
refilling establishments subcategory (Subpart E) that EPA added to the
Pesticide Chemicals point source category (40 CFR part 455). See 61 FR
57518 (Nov. 6, 1996). The BPT limitations in Part 455 did not cover
refilling establishments and their industrial operations (e.g.,
refilling of minibulks) because these industrial operations did not
begin until well after the limitations were first promulgated. EPA
considered refilling establishments a subcategory of
[[Page 53709]]
the Pesticide Chemicals point source category because of similar types
of industrial operations performed, wastewaters generated, and
available pollution prevention and treatment options.
EPA's annual review under section 304(b) also focused on
identifying pollutants that are not regulated by an existing effluent
guideline for a point source category but that comprise a significant
portion of the estimated toxic-weighted pollutant discharges for that
category. EPA believes that it is reasonable to consider new pollutants
for regulation in the course of reviewing existing effluent guidelines
under CWA section 304(b). EPA has several reasons for this. First, a
newly identified pollutant might be adequately addressed through
existing regulations or through the additional control of already
regulated pollutants in an existing set of effluent guidelines. In some
cases, revising existing limitations for one set of pollutants will
address hazards or risks associated with a newly identified pollutant,
thus obviating the need for EPA to promulgate specific limitations for
that pollutant. Second, EPA believes it is necessary to understand the
effectiveness (or ineffectiveness) of existing effluent guidelines in
controlling newly identified pollutants before EPA can identify
potential technology-based control options for these pollutants. For
example, EPA revised effluent guidelines for the Oil and Gas Extraction
point source category (40 CFR part 435) to add limitations for new
pollutants that resulted from a new pollution prevention technology
(synthetic-based drilling fluids). See 66 FR 6850 (January 22, 2001).
Similarly, EPA revised effluent limitations for the bleached papergrade
kraft and soda and papergrade sulfite subcategories within the Pulp and
Paper point source category to add BAT limitations for dioxin, which
was not measurable when EPA first promulgated the effluent guidelines.
See 63 FR 18504 (Apr. 15, 1998).
In general, treatment technologies address multiple pollutants and
it is important to consider their effects holistically in order to
develop limitations that are both environmentally protective and
economically achievable. In short, EPA believes that the
appropriateness of creating an additional subcategory or addressing a
newly identified pollutant is best considered in the context of
revising an existing set of effluent guidelines. Accordingly, EPA
performed these analyses as part of its annual review of existing
effluent guidelines under CWA section 304(b).
2. What Factors Does EPA Consider in Its Annual Review of Effluent
Guidelines Under Section 304(b)?
The starting point of EPA's analysis is CWA section 301(b)(2)(A),
which requires dischargers to achieve effluent limitations that reflect
the best available technology economically achievable (BAT), as
identified by the Administrator under the authority of CWA section
304(b)(2). Section 304(b), in turn, requires EPA to consider many
factors in identifying BAT. These are discussed in section IV.A.3.
Section 304(b) also directs EPA to revise the existing effluent
guidelines when it deems appropriate. By using the statutory factors in
section 304(b) and section 301(b)(2)(A) as the framework for its annual
review of existing guidelines, EPA can investigate a variety of
technological, economic, and environmental issues that ultimately will
help determine whether it should revise the effluent guidelines for a
particular industrial category. In the draft Strategy for National
Clean Water Industrial Regulations (``draft Strategy''), see 67 FR
71165 (Nov. 29, 2002), EPA identified four major factors--based on
section 304(b)--that the Agency would examine, in the course of its
annual review, to determine whether it would be appropriate to revise
an existing set of effluent guidelines.
The first factor considers the amount and toxicity of the
pollutants remaining in an industrial category's discharge and the
extent to which these pollutants pose a hazard or risk to human health
or the environment. This helps the Agency assess the extent to which
additional regulation may contribute reasonable further progress toward
the national goal of eliminating the discharge of all pollutants, as
specified in Section 301(b)(2)(A). The second factor identifies and
evaluates the cost and performance of an applicable and demonstrated
technology, process change, or pollution prevention alternative that
can effectively reduce the pollutants remaining in the industrial
category's wastewater and, consequently, substantially reduce the
hazard or risk to human health or the environment associated with these
pollutant discharges. Cost is a factor specifically identified in
Section 304(b) for consideration in establishing BPT, BAT and BCT. The
third factor evaluates the affordability or economic achievability of
the technology, process change, or pollution prevention measures
identified using the second factor pursuant to section 304(b)(2)(A). If
the financial condition of the industry indicates that it would
experience significant difficulties in implementing the new technology,
process change, or pollution prevention measures, EPA might conclude
that Agency resources would be more effectively spent developing more
efficient, less costly approaches to reducing pollutant loadings that
would better satisfy applicable statutory requirements.
The fourth factor addresses implementation and efficiency
considerations and recommendations from stakeholders. Here, EPA
considers opportunities to eliminate inefficiencies or impediments to
pollution prevention or technological innovation, or opportunities to
promote innovative approaches such as water quality trading, including
within-plant trading. For example, in the 1990s, industry requested in
comments on the Offshore and Coastal effluent guidelines rulemakings
that EPA revise these effluent guidelines because they inhibited the
use of a new pollution prevention technology (synthetic-based drilling
fluids). EPA agreed that revisions to these effluent guidelines were
appropriate for promoting synthetic-based drilling fluids as a
pollution prevention technology and promulgated revisions to the Oil
and Gas Extraction point source category. See 66 FR 6850 (Jan. 22,
2001). This factor might also prompt EPA, during an annual review, to
decide against identifying an existing set of effluent guidelines for
revision where the pollutant source is already efficiently and
effectively controlled by other regulatory or non-regulatory programs.
While this factor is not specifically mentioned in the CWA, EPA
believes it is appropriate to consider as an ``other factor'' that the
Administrator deems appropriate, as specified in Section 304(b) for
BPT, BAT and BCT.
EPA intends to finalize the draft Strategy in connection with the
final 2006 Effluent Guidelines Program Plan. This will allow time for
EPA to better refine the Strategy as it performs future reviews under
section 304(b).
3. How Did EPA's 2003 Annual Review Influence Its 2004 Annual Review of
Point Source Categories With Existing Effluent Guidelines?
In view of its annual nature, EPA believes that each annual review
can and should influence succeeding annual reviews, e.g., by indicating
data gaps, identifying new hazards or technologies, or otherwise
highlighting industrial categories for more detailed scrutiny in
subsequent years. During its 2003
[[Page 53710]]
annual review, which concluded in December 2003, EPA identified two
industrial categories for detailed investigation in its 2004 annual
review: Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) (Part
414); and Petroleum Refining (Part 419). As part of its 2003 review of
the OCPSF effluent guidelines, EPA identified a potential additional
subcategory for more detailed review: Chemical formulating, packaging,
and repackaging (including adhesives and sealants) operations. EPA also
identified for more detailed review a potential additional subcategory
of the Petroleum Refining effluent guidelines: Petroleum bulk stations
and terminals. In addition, EPA identified potentially high risks or
hazards associated with discharges from two other industrial
categories: Inorganic Chemicals (Part 415) and Nonferrous Metals
Manufacturing (Part 421). Finally, EPA identified seven other
industrial point source categories with relatively high estimates of
toxic-weighted pollutant discharges. EPA's 2003 annual review,
including stakeholder comments received as of that date, is discussed
in the preliminary Effluent Guidelines Program Plan published in
December 2003. See 68 FR 75515, 75526 (Table VI-2), 75530 (Table VII-1)
(Dec. 31, 2003). EPA used the results of the 2003 annual review to
inform its 2004 annual review.
4. What Actions Did EPA Take in Performing Its 2004 Annual Review of
Existing Effluent Guidelines?
a. Screening-level review.
The first component of EPA's 2004 annual review consisted of a
screening-level review of all promulgated effluent guidelines. As a
starting point for this review, EPA examined screening-level data from
its 2003 annual review. In its 2003 annual review, EPA focused its
efforts on collecting and analyzing screening-level data to identify
industrial categories whose pollutant discharges potentially pose the
greatest hazard or risk to human health because of their magnitude and
toxicity (i.e., highest estimates of toxic-weighted pollutant
discharges). In particular, EPA ranked point source categories
according to their discharges of toxic and non-conventional pollutants
(reported in units of toxic-weighted pound equivalent or TWPE), based
primarily on data from the Toxics Release Inventory (TRI) and the
Permit Compliance System (PCS). EPA estimated the hazard of the
discharged pounds of pollutants by calculating hazard scores using
pollutant-specific toxic weighting factors (TWFs). Where data is
available these TWFs reflect both aquatic life and human health
effects. Multiplying the pounds of pollutants discharged by their TWFs
results in an estimate of toxic-weighted pound equivalents (TWPE). EPA
also analyzed available data linking water quality impairments with
point source discharges, and considered implementation and efficiency
issues and water quality issues raised by EPA Regions and stakeholders.
The full description of EPA's methodology to synthesize screening-level
results for the 2004 annual review is presented in the Docket
accompanying this notice (see DCN 01088, section 1.5).
In its 2004 annual review, EPA re-examined the categories listed in
the 2003 screening review, with particular emphasis on those for which
EPA had reason to believe the Factor 1 risk or hazard assessment had
changed. For example, when stakeholders identified existing effluent
guidelines for revision in their comments on the 2003 review and the
preliminary Plan, EPA re-considered the extent to which the pollutants
in the industrial category's wastewater discharge posed a hazard or
risk to human health or the environment. EPA also used data and
information in these comments to revise pollutant estimates. For
example, EPA refined its assessment of dioxin discharges in petroleum
refining wastewaters based on industry comments on the preliminary Plan
(see section V.B.2). Additionally, in response to comments, EPA
reviewed pollutant discharges from oil and gas extraction facilities in
Cook Inlet, Alaska, to estimate toxic-weighted pollutant discharges.
Accordingly, EPA revised the industrial category toxic-weighted
discharges, and assigned those categories with the lowest estimates of
toxic-weighted pollutant discharges a lower priority for revision.
EPA also developed and used a quality assurance project plan (QAPP)
as a tool to document the type and quality of data needed to make the
decisions in this annual review and to describe the methods for
collecting and assessing those data (see DCN 00694, section 2.1). EPA
used the following document to develop the QAPP for this annual review,
``EPA Requirements for QA Project Plans (QA/R-5), EPA-240-B01-003.''
Using the QAPP as a guide, EPA performed extensive quality assurance
checks on the data used to develop estimates of toxic-weighted
pollutant discharges (i.e., verifying data reported to TRI and the
Permit Compliance System) to determine if any of the pollutant
discharge estimates relied on incorrect or suspect data. For example,
EPA contacted facilities and permit writers to confirm and, as
necessary, correct PCS and TRI data for industries EPA identified in
the preliminary Plan as the significant dischargers of toxic and non-
conventional pollution.
EPA did not, however, conduct a comprehensive screening-level
review of the availability of treatment or process technologies that
might reduce hazard or risk. As was the case in the 2003 annual review,
EPA was unable to gather the data needed to perform a comprehensive
screening-level analysis of the availability of treatment or process
technologies to reduce hazard or risk beyond the performance of
technologies already in place for the 56 industrial categories. EPA did
consider information on the availability of treatment or process
changes for some industries, where such information was provided by
commenters on the preliminary Plan or otherwise identified by EPA.
Similarly, EPA could not identify a suitable screening-level tool for
comprehensively evaluating the economic affordability of treatment or
process technologies because the universe of facilities is too broad
and complex. However, EPA did consider economic information for the two
industries identified in the Preliminary Plan (i.e., Organic Chemicals,
Plastics, and Synthetic Fibers (OCPSF) and Petroleum Refining. For
example, as a result of its 2004 annual review, EPA is not scheduling
the coal tar refining industrial sector (a subcategory of OCPSF) for an
effluent guidelines revision due, in part, to the declining health of
this subcategory (see section V.B.1.). However, EPA could not find a
reasonable way to prioritize many of the remaining industries based on
a broad economic profile. In the past, EPA has gathered information
regarding technologies and economic considerations through detailed
questionnaires distributed to hundreds of facilities within a category
or subcategory for which EPA has commenced rulemaking. (See DCN 01196
for an example of the Questionnaire used by EPA for the Meat and
Poultry Products rulemaking, and DCN 01195 for an example of the
Questionnaire used for the Iron and Steel Rulemaking.) Such
information-gathering efforts are subject to the requirements of the
Paperwork Reduction Act, 33 U.S.C. 3501, et seq. The information
acquired in this way is invaluable to EPA in its rulemaking efforts,
but the process of gathering, validating and analyzing the data--even
for only a few subcategories--can
[[Page 53711]]
consume considerable time and resources. Consequently, EPA is working
to develop more streamlined screening-level tools for technological and
economic achievability as part of future annual reviews under section
304(b).
In order to further focus its inquiry during the 2004 annual
review, EPA applied less scrutiny to categories for which effluent
guidelines rulemakings were then underway or for which EPA had
promulgated effluent guidelines within the past seven years. EPA chose
seven years because this is the time it customarily takes for the
effects of effluent guidelines to be fully reflected in pollutant
loading data and Toxic Release Inventory reports (in large part because
effluent limitations guidelines are often incorporated into NPDES
permits only upon reissuance, which could be up to five years after the
effluent guidelines are promulgated). Because there are 56 point source
categories (including over 450 subcategories) with existing effluent
guidelines that must be reviewed annually, EPA believes it is important
to prioritize its review so as to focus especially on industries where
changes to the existing effluent guidelines are most likely to be
needed. In general, industries for which new or revised effluent
guidelines have recently been promulgated are less likely to warrant
such changes. However, in cases where EPA becomes aware of the growth
of a new segment within a category for which EPA has recently revised
effluent guidelines, or where new concerns are identified for
previously unevaluated pollutants discharged by facilities within the
industrial category, EPA would apply a heightened level of scrutiny to
the category in a subsequent review, but EPA identified no such
instance during the 2004 review.
EPA also identified some industries where the estimated toxic-
weighted pollutant discharges were unclear and more data were needed to
determine their magnitude. For these industries, EPA intends to collect
additional information for the next annual review.
As part of its 2004 review, EPA also considered the number of
facilities responsible for the majority of the estimated toxic-weighted
pollutant discharges associated with an industrial activity. Where only
a few facilities accounted for the vast majority of toxic-weighted
pollutant discharges, EPA believes that revision of individual permits
may be more effective at addressing the toxic-weighted pollutant
discharges than a national effluent guidelines rulemaking because
requirements can be better tailored to these few facilities, and
because individual permitting actions may take considerably less time
than a national rulemaking. The Docket accompanying this notice lists
facilities that account for the vast majority of the estimated toxic-
weighted pollutant discharges for particular categories (see DCN 01089,
section 3.0). EPA will consider identifying pollutant control and
pollution prevention technologies that will assist permit writers in
developing facility-specific, technology-based effluent limitations on
a best professional judgment (BPJ) basis. In future annual reviews, EPA
also intends to re-evaluate each category based on the information
available at the time in order to evaluate the effectiveness of the BPJ
permit based support.
EPA received comments urging EPA, as part of its annual review, to
encourage and reward voluntary efforts by industry to reduce pollutant
discharges, especially when the voluntary efforts have been widely
adopted within an industry and the associated pollutant reductions have
been significant. EPA agrees that industrial categories demonstrating
significant progress through voluntary efforts to reduce hazard or risk
to human health and the environment associated with their effluent
discharges would be a comparatively lower priority for effluent
guidelines revision, particularly where such reductions are achieved by
a significant majority of individual facilities in the industry.
Although during this annual review EPA could not complete a systematic
review of voluntary pollutant loading reductions, EPA's review did
account for the effects of successful voluntary programs: such programs
could be expected to produce significant reductions in pollutant
discharges, which in turn would be reflected in discharge monitoring
and TRI data, as well as any data provided directly by commenters, that
EPA used to assess the toxic-weighted pollutant discharges.
In summary, EPA focused its 2004 screening-level review on
analyzing any new data provided by stakeholders to identify industrial
categories whose pollutant discharges potentially pose the greatest
hazards or risks to human health and the environment because of their
toxicity. EPA also considered efficiency and implementation issues
raised by stakeholders and commenters on the preliminary Plan. By using
this multi-layered screening approach, the Agency concentrated its
resources on those point source categories with the highest estimates
of toxic-weighted pollutant discharges (based on best available data),
while assigning a lower priority to categories that the Agency believes
are not good candidates for effluent guidelines revision at this time.
b. Detailed review of effluent guidelines for certain industries.
For a number of the industries that appeared to offer the greatest
potential for reducing hazard or risk to human health or the
environment, EPA gathered and analyzed additional data on hazard and
risk, economic factors, and technology issues during its 2004 annual
review. EPA examined: (1) Wastewater characteristics and pollutant
sources; (2) the pollutants driving the toxic-weighted pollutant
discharges; (3) treatment technology and pollution prevention
information; (4) the geographic distribution of facilities in the
industry; (5) any pollutant discharge trends within the industry; and
(6) any relevant economic factors.
EPA relied on many different sources of data including: (1) 1997
U.S. Economic Census; (2) TRI and PCS data; (3) contacts with reporting
facilities to verify reported releases and facility categorization; (4)
contacts with regulatory authorities (states and EPA regions), to
understand how category facilities are permitted; (5) NPDES permits and
their supporting fact sheets; (6) EPA effluent guidelines technical
development documents; (7) relevant EPA preliminary data summaries or
study reports; (8) technical literature on pollutant sources and
control technologies; (9) information provided by industry in response
to EPA requests made under CWA section 308 authority; (10) stormwater
data submitted to EPA as required by the storm water Multi-Sector
General Permit for industrial activities. See 65 FR 64746 (Oct. 30,
2000); and (11) public comments on the 2003 annual review and the
preliminary Plan.
The 2004 detailed review focused first on Organic Chemicals,
Plastics and Synthetic Fibers (OCPSF) (Part 414) and Petroleum Refining
(Part 419), which were identified in the preliminary Plan as offering
the greatest potential for reducing hazard or risk to human health and
the environment. EPA performed a review of technology innovation and
process changes in these industrial categories. EPA considered cost and
affordability of potential technologies options where data and
information were available. EPA also considered whether new
subcategories are needed for either of these categories. The purpose of
the detailed investigation was to determine whether it would be
appropriate to revise the existing effluent guidelines for these
industrial categories. The results of the detailed review of the
effluent guidelines for
[[Page 53712]]
these two categories are presented in Section V.B., below.
EPA also conducted additional reviews of industrial categories
suggested by stakeholders as offering potential for reducing hazard or
risk based on available technologies. As part of these reviews, EPA
considered not only the estimates of toxic-weighted pollutant
discharges from the category, but also technological availability and
affordability when the information was available. For example,
commenters suggested that EPA scrutinize the provision in the coastal
subcategory of the Oil and Gas Extraction effluent guidelines (40 CFR
part 435, Subpart D) that allows for the discharge of produced water,
drilling fluid, and cuttings in Cook Inlet, Alaska. The commenters
suggested that this provision should be revised to conform to the
effluent guidelines for coastal oil and gas extraction conducted
elsewhere, which must meet a zero discharge requirement for these
pollutants. EPA evaluated technology and economic factors for Cook
Inlet facilities as part of its 2004 review of the effluent guidelines
for part 435 and determined based on these factors that it is not
appropriate to schedule those guidelines for revision at this time (see
DCN 01088, section 1.5).
c. Review of public comments on the 2003 Annual Review.
EPA's annual review process has historically considered information
provided by stakeholders regarding the need for new or revised effluent
guidelines or regarding issues associated with effluent guidelines
implementation and efficiency. For the 2004 annual review, EPA obtained
information from public comments on the December 2003 Federal Register
notice, discussions with stakeholder groups with an interest in the
Effluent Guidelines Program, and with staff from States and EPA Regions
charged with implementing effluent guidelines in NPDES permits, as well
as from public comments submitted to EPA on the draft Strategy.
The Agency received 59 comments from a variety of commenters
including industry and industry trade associations, municipalities and
sewerage agencies, environmental groups, other advocacy groups, two
tribal governments, a private citizen, a Federal agency, and a State
government agency. Stakeholder's suggestions played a significant role
in the 2004 annual review of existing categories, as well as in EPA's
assessment of potential new industrial categories under section
304(m)(1)(B). EPA's responses to comments are presented in this notice
and in the Docket accompanying this notice. EPA contacted stakeholders,
as necessary, for more information on their recommendations. EPA hopes
that public review of the 2004 annual review and this final Plan and
future annual reviews and final Plans will elicit additional
information and suggestions for improving the Effluent Guidelines
Program. To that end, EPA has established a docket for its 2005 annual
review to provide the public with an opportunity to provide additional
information to assist the Agency in its annual review. See section VI.
B. What Were EPA's Findings From Its Annual Review for 2004?
As a result of its 2004 annual review of all existing effluent
guidelines, EPA is identifying vinyl chloride manufacturing, which is
subject to the Organic Chemicals, Plastics, and Synthetic Fibers (Part
414) point source category, and chlor-alkali manufacturing, which is
subject to the Inorganic Chemicals (Part 415) point source category,
for possible effluent guidelines revisions. In section VII.A.2., below,
EPA establishes a schedule for this rulemaking as required by section
304(m)(1)(A).
1. Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF)
EPA identified OCPSF in the preliminary Plan because during the
2003 annual review it ranked high in terms of toxic and non-
conventional pollutant discharges among the industrial point source
categories investigated in the screening-level analyses. Three
pollutants influenced OCPSF's hazard ranking: dioxin compounds,
polycyclic aromatic compounds (PACs), and aniline. EPA's screening-
level analysis during the 2003 annual review was based primarily on
information reported to TRI for the year 2000. For the 2004 annual
review, EPA obtained and reviewed additional information to supplement
that data. One source was comments to the preliminary Plan. Data
sources on dioxin generation and discharges included facility-provided
information (see DCNs 00897, 00898, 00899, 01027, and 01034-01037,
section 4.4), the Chlorine Chemistry Council (see DCN 01039, section
4.4), the Vinyl Institute (see DCN 01038, section 4.4), and EPA studies
(see DCN 01088, section 1.5).
In general, industry comments stated that: (1) EPA's preliminary
Plan prematurely identified target industries without demonstrating a
compelling reason to pursue detailed study of these industries; (2)
EPA's preliminary Plan deviates from the sound, risk-based focus of the
Agency's draft Strategy; (3) EPA did not establish a credible link
between estimated pollutant discharges from OCPSF facilities and actual
water quality impairments; (4) EPA fell far short of its stated goal of
involving the regulated community in the initial screening steps of the
effluent guidelines planning process; and (5) EPA must ensure that
treatment technologies for the OCPSF industry are both cost-effective
and applicable to the wide variety of sites in the industry. One
industry commenter provided specific data to correct reporting errors
in the PCS database. Another industry commenter stated that using half
of the detection limit for concentrations below detection limits
overstates the actual pollutant discharges. The Vinyl Institute
provided data on dioxin releases from ethylene dichloride (EDC), vinyl
chloride monomer (VCM), and polyvinyl chloride (PVC) operations,
including emission factors relating dioxin releases to production.
Industry commenters also stated that it was not appropriate to
include chemical formulation, packaging, and repackaging (including
adhesives and sealants) operations (CFPR) as an additional subcategory
in the OCPSF point source category. Industry commenters assert that
there is a clear distinction between CFPR and OCPSF industries because
CFPR industries formulate products by mixing or blending without a
chemical reaction while OCPSF industries perform chemical synthesis or
reaction operations. Industry commenters further assert that
formulation processes are much different than synthesis/reaction
processes, with the result that the wastewaters are different and
pollution prevention and treatment options are not the same.
Environmental commenters encouraged revision of the OCPSF effluent
guidelines. Their comments were based on the magnitude of the OCPSF
industry's pollutant loadings to surface waters, the apparent
connection between the industry's discharges and impairment of
receiving waters, and the availability of technologies that can
mitigate pollution from the industry.
EPA identified over 1,500 facilities as OCPSF manufacturing
facilities. During review of this industry, EPA found that the
wastewater discharge hazard estimate for the entire OCPSF category was
largely driven by only three sectors: aniline dischargers, coal tar
refiners, and vinyl chloride manufacturing. Each of these is discussed
below.
As part of its review of the OCPSF industry, EPA considered whether
any subcategories should be added. For example, EPA identified in its
[[Page 53713]]
preliminary Plan chemical formulating, packaging, and repackaging
(including adhesives and sealants) operations (CFPR) as a possible
additional subcategory because most CFPR discharges are from facilities
that also engage in other OCPSF operations. Although EPA is scheduling
the OCPSF category for possible revision, EPA does not expect to
promulgate national categorical effluent limitations guidelines for
this industrial subcategory at that time because the vast majority of
the estimated toxic-weighted pollutant discharges were attributable to
only a few facilities. Additionally, most facilities performing CFPR
operations do not discharge wastewater. These few facilities with the
vast majority of the estimated toxic-weighted pollutant discharges also
engage in other chemical manufacturing operations already regulated by
existing effluent guidelines and it is not clear how much of these
discharges come from CFPR operations. Rather, EPA will consider
assisting permitting authorities in identifying pollutant control and
pollution prevention technologies for these facilities based on best
professional judgment (BPJ). However, as EPA proceeds with its OCPSF
rulemaking, EPA may reconsider this approach.
EPA also conducted a screening analysis of the potential impact
from the discharge of nutrients (i.e., nitrogen and phosphorus) from
OCPSF facilities on receiving waters. Employing available data and
using conservative assumptions (i.e., the absence of all other sources
of nitrogen and low flow conditions), EPA estimated that nutrient loads
from 19 OCPSF facilities could potentially cause in-stream nitrogen
concentrations to exceed the levels generally expected to be found in
25% of freshwater streams and rivers with the lowest concentrations
nationally. (EPA recommends that States and Tribes begin development of
nutrient standards by considering the nutrient levels found in the
least impacted 25% of their waters.) EPA estimated that nutrient loads
from four facilities could potentially cause in-stream nitrogen
concentrations to exceed the levels generally expected to be found in
the least impacted 50% of freshwater streams and rivers nationally.
Using a similar analysis, EPA estimated that the discharge of
phosphorus from OCPSF facilities would not cause in-stream phosphorus
concentrations to exceed the levels generally expected to be found in
the least impacted 25% of freshwater rivers and streams nationally.
While EPA will continue to examine nutrient issues as it moves forward
with an effluent guidelines rulemaking for vinyl chloride and chlor-
alkali manufacturing, based on this screening analysis, the discharge
of nutrients from OCPSF facilities does not appear to support the
development of national categorical effluent limitations for these
pollutants at this time. The complete analysis is available in the
Docket accompanying this notice.
EPA evaluated aniline wastewater discharge information from 3
direct dischargers and 12 indirect dischargers. The pollutants in these
discharges result from the manufacture of aniline or dyes. Census
information shows 38 dye manufacturers in the United States; however,
this information is not specific enough to identify which dye
manufacturers discharge aniline in their wastewater. According to EPA's
National Risk Management Research Laboratory treatability database (see
http://www.epa.gov/ORD/NRMRL/treat.htm), biological treatment is
expected to achieve greater than 90% removal of aniline (see DCN 01040,
section 4.4). Additional information collected from POTWs that receive
these aniline discharges supports the conclusion that aniline is well
treated by the biological treatment at POTWs (see DCNs 01041-01045,
section 4.4). Furthermore, EPA did not find documentation that these
aniline discharges contributed to POTW interferences or upsets.
Moreover, one large aniline discharger discontinued operations after
2000 (see DCN 01044, section 4.4). Therefore, based on the information
in its docket at this time, EPA has concluded it is not appropriate to
schedule for possible revision the limitations and standards for the
aniline and dye production sectors at this time.
EPA has information on three companies that perform coal tar
refining operations. These three companies own ten facilities, with six
currently in operation. EPA has 2000 TRI discharge data for four coal
tar refining facilities. The primary pollutant contributing to the
potential hazard estimated for discharges from these facilities is
polycyclic aromatic compounds (PACs). This sector is declining, and the
economic health of this sector is poor. Coal tar is formed as a
byproduct during the process of producing metallurgical coke from coal,
called coking. Coal tar refiners in North America have been faced with
the challenge of dealing with a coal tar deficit due to the closing of
several U.S. coke ovens. One of the three companies closed all three of
its coal tar facilities since 2000. Another company shut down its only
coal tar refining facility. The third company documented the declining
production of coal tar and the potential substitution of bitumen as
feedstock. Due to the small and declining number of facilities in this
sector, the poor economic health of these facilities, and available
discharge monitoring data indicating that these facilities are
discharging PACs at or near treatable levels, EPA concluded that it is
not appropriate to schedule for possible revision the effluent
guidelines for the coal tar refining industrial sector at this time
(see DCN 01088, section 1.5).
Dioxin is, by far, the pollutant primarily responsible for the
OCPSF industry's very large toxic-weighted pollutant discharge. Dioxin
is one of the most toxic and environmentally stable tricyclic aromatic
compounds of its structural class. Due to its very low water
solubility, most of the dioxin discharged to surface waters will adhere
to sediments and suspended silts. Dioxin has a very great tendency to
accumulate in aquatic life, from algae to fish. Due to its toxicity and
ability to bioaccumulate, the various forms (congeners) of dioxin have
high toxic weighting factors (TWFs). Consequently, even small mass
amounts of dioxin discharges translate into high toxic weighted pounds
equivalents (TWPEs). As previously stated, EPA estimated the hazard of
the discharged pounds of pollutants by calculating hazard scores using
pollutant-specific TWFs. Where data are available, these TWFs reflect
both aquatic life and human health effects. Multiplying the pounds of
pollutants discharged by their TWFs results in an estimate of toxic-
weighted pound equivalents (TWPE).
EPA reviewed dioxin discharge information available from several
sources, including the TRI database, information collected by the
Chlorine Chemistry Council (an industry group), and information
provided by industry in response to EPA requests made under the
authority of CWA section 308. Based on information in the docket, EPA
believes the manufacture of ethylene dichloride (EDC) and vinyl
chloride monomer (VCM) are sources of dioxin discharges. The
manufacture of polyvinyl chloride (PVC) may also be a source of dioxin
discharges. EPA refers to these collectively as vinyl chloride
manufacturing. EPA found that the largest dioxin discharges (98% of the
2000 TRI toxicity-weighted dioxin discharges) occurred at large
integrated facilities that also operated chlor-alkali plants (whose
wastewaters are subject to the Inorganic Chemicals effluent guidelines
(part 415)). However, based on information in the docket from one
facility with stand-alone vinyl chloride operations, and from
integrated facilities that have separately monitored their
[[Page 53714]]
vinyl chloride operations, EPA believes that vinyl chloride
manufacturing, with or without co-located chlor-alkali operations, has
the potential to discharge significant amounts of dioxin. See section 6
of DCN 01088. While investigating the role of chlor-alkali plants in
generating dioxins at large integrated organic chemical plants, EPA
learned that dioxin discharges from stand-alone chlor-alkali plants are
also significant (98,600 toxic-weighted pounds). EPA estimates that
there are 20 facilities that perform vinyl chloride manufacturing
operations (with no chlor-alkali operations), 24 facilities that
perform chlor-alkali operations (with no organic chemicals operations
identified), and 12 facilities that perform both vinyl chloride and
chlor-alkali manufacturing operations.
Based on information from the Chlorine Chemistry Council, EPA
estimated that the 2000 dioxin discharges from 21 vinyl chloride and
chlor-alkali manufacturing facilities (i.e., 26 grams-TEQ) represented
24 million toxic weighted pounds equivalents (TWPE). The industry
voluntarily verified the 2000 TRI dioxin data using outside consultants
(see DCNs 00831-00834 and 01039, section 4.4). The industry is in the
process of implementing corporate voluntary reduction strategies to
reduce dioxin discharges to all media. These strategies have been
extremely successful at some facilities. As a result, Chlorine
Chemistry Council discharge information for 2002 indicates that 11
vinyl chloride and chlor-alkali manufacturing facilities reduced their
wastewater discharges of dioxin from 22 million toxic-weighted pound-
equivalents (23.8 grams-TEQ) in 2000 to 7 million toxic weighted pound-
equivalents (7.6 grams-TEQ) in 2002. However, not all facilities have
been successful in reducing their dioxin discharges. The data
demonstrate that the overall estimated industry dioxin discharges are
declining because some individual facilities have achieved significant
reductions; however, other individual facilities are showing increases
in dioxin discharges.
Therefore, because the vinyl chloride manufacturing sector of OCPSF
discharges significant quantities of toxic weighted pound-equivalents,
EPA is selecting the vinyl chloride manufacturing segment of the
organic chemicals industry for possible revision. In addition, because
many chlor-alkali operations are co-located with vinyl chloride
manufacturing and because these operations discharge significant
quantities of TWPEs, EPA also selected the chlor-alkali industrial
segment of the inorganic chemicals industry for possible revision.
2. Petroleum Refining (Part 419)
In the preliminary Plan, EPA identified Petroleum Refining as a
candidate for detailed analysis, because EPA's screening-level analysis
indicated some petroleum refining facilities were discharging
significant amounts of dioxin compounds, polycyclic aromatic compounds
(PACs), and metal pollutants to surface waters. EPA's screening
analysis during the 2003 review was based primarily on information
reported to TRI for the year 2000. For the 2004 annual review, EPA
obtained and reviewed additional information to supplement that data,
including wastewater sampling data provided by the industry and the
Washington State Department of Ecology, EPA's 1996 Petroleum Refining
Preliminary Data Summary, and effluent data. Commenters on the
preliminary Plan explained that 2000 was the first year industry was
required to report releases of dioxin compounds and PACs to TRI. In
addition, many industry commenters explained that their corporate
policies require that the estimates of these pollutants be based on one
half the detection level multiplied by total facility flow, regardless
of whether these pollutants are detected in the final effluent by
actual wastewater sampling data. Commenters also provided updates to
the TRI information, as well as documentation supporting their
statements that some of the information included errors.
With regard to PACs, TRI requires facilities to report the total
releases of 21 specific pollutants as a single value for a PAC bulk
parameter. EPA determined that most of the reported releases were not
based on measured concentrations in refinery effluents. Even where
effluent concentrations were measured and individual PACs were not
detected, refineries estimated releases using one half the analytical
detection limit and refinery effluent flow rate. Ten refineries have
NPDES permit limits for either PAHs, as a class, or individual PACs.
(PAHs are polynuclear aromatic hydrocarbons, 16 compounds measured by
Method 610. Eight individual compounds included in the PAH group are
also included in the PAC compounds category reportable to TRI.) In
2000, none of the refineries reporting to PCS measured individual PACs
above detection limits. Two of six refineries required to monitor for
PAHs, as a class, reported PAH concentrations above detection limits.
One of these two refineries also monitors for eight individual PACs--
none of which were detected in 2000. In comments on the preliminary
plan, the American Petroleum Institute provided effluent data collected
at ten refineries in 1993/4. These data show individual PACs were never
measured above analytical detection limits. Therefore, based on the
information in the docket, EPA has concluded that there is little
evidence that PACs are present in concentrations above the detection
limit in refinery wastewater discharges.
EPA found that most petroleum refineries do not monitor for
dioxins. For TRI reporting year 2000, 17 refineries reported wastewater
dioxin releases. For 15 of the 17 dioxin-reporting refineries, reported
releases either were not based on measured concentrations or, when
dioxin congeners were not detected, releases were estimated using one
half the analytical detection limit and refinery effluent flow. For two
of the 17 dioxin-reporting refineries, the reported releases were based
on measured concentrations in refinery effluents. EPA also reviewed PCS
data and identified only three petroleum refineries that are required
to monitor their effluent for the most toxic form of dioxin (i.e.,
2,3,7,8-TCDD or its equivalent). Only one of them detected dioxin in
its effluent in 2000 (NPDES Permit No. CA0004961). Discharge monitoring
data shows its discharge as 0.664 mg/yr TCDD-equivalents. In 1997, this
facility completed an extensive study characterizing the source and
characterization of dioxin in their wastewaters (see DCN 00710, section
4.06). The study determined that storm water is the largest contributor
to dioxin in the final effluent (50%), with its coke pond and clean
canal forebay as the second largest (45%). The facility also reported
that the wastewater treatment plant (i.e., treated process wastewater)
contributed 2% of the dioxins in the final effluent. In 1993, this
refinery installed a granular activated carbon (GAC) treatment system
that successfully removed 95 to 99 percent of the dioxins found in the
washwater from its reformer catalyst regeneration operation. Two
samples of GAC effluent were analyzed and the results reported as 0.012
pg/L TEQ for one sample and 0.00 pg/L TEQ for the other sample.
EPA also looked at wastewater sampling data from studies that four
Washington state refineries were required, by their permits, to
undertake, as well as data collected for the 1996 Preliminary Data
Summary. High concentrations of dioxins, including 2,3,7,8-TCDD and
2,3,7,8-TCDF, were detected in catalytic reformer
[[Page 53715]]
regeneration wastewaters. The Washington state refineries also detected
high concentrations of dioxins in separator sludge collected at the
time reformer catalyst regeneration wastewater was treated. In the
treated wastewater effluent, two of the Washington refineries detected
no dioxins, one detected octochlorodibenzo dioxin in one of two
wastewater samples, and the fourth detected several dioxin congeners in
several effluent samples. EPA concludes that most dioxins discharged to
treatment in reformer catalyst regeneration wastewater settle with the
solids and become part of the separator sludge. These sludges are being
disposed of as hazardous wastes. Consequently, EPA concludes that while
dioxins may be produced in high concentrations at petroleum refining
facilities during catalytic reforming and catalyst regeneration
operations, dioxins are only occasionally discharged and only in low
concentrations in treated refinery effluent. In addition, sludges are
properly handled as RCRA hazardous wastes. As a result, based on the
information in its docket, EPA concludes that consideration of national
categorical limitations on dioxin in refinery discharges is not
warranted at this time.
In 2004, EPA also reviewed its database for information on metal
and other non-conventional pollutants. Based on information from Year
2000 reports in PCS, the top hazard loads of pollutants being
discharged by refineries include metal pollutants, sulfide, and
ammonia-nitrogen. Based on data as reported to PCS and TRI, metals
contribute 17 to 22 percent of the toxicity-weighted pollutant
discharges reported released by petroleum refineries in 2000. From its
detailed review, EPA concludes that the concentration of metal
pollutants in refinery wastewaters is at or near treatable levels,
leaving little to no opportunity to reduce metals discharges through
conventional end-of-pipe treatment. Further, EPA did not identify an
in-process wastestream with high concentrations of metals, so could not
identify appropriate in-process treatment technology or pollution
prevention opportunities. The existing effluent guidelines for
petroleum refining facilities include limitations for sulfide and
ammonia-nitrogen. EPA's 2004 analysis of this information demonstrates
that these pollutants are being discharged in concentrations at or near
the detection level.
EPA also conducted a screening analysis to investigate the
potential impact from the discharge of nutrients (i.e., nitrogen and
phosphorus) from petroleum refining facilities on the facilities'
receiving waters. Employing available data and using conservative
assumptions (i.e., the absence of all other sources of nitrogen and low
flow conditions), EPA estimated that nutrient loads from 12 petroleum
refining facilities could potentially cause in-stream nitrogen
concentrations to exceed the levels generally expected to be found in
25% of freshwater streams and rivers with the lowest concentrations
nationally. (EPA recommends that States and Tribes begin development of
nutrient standards by considering the nutrient levels found in the
least impacted 25% of their waters.) EPA estimated that nutrient loads
from one facility could potentially cause in-stream nitrogen
concentrations to exceed the levels generally expected to be found in
the least impacted 50% of freshwater streams and rivers nationally.
Using a similar analysis, EPA estimated that the discharge of
phosphorus from petroleum refining facilities would not cause in-stream
phosphorus concentrations to exceed the levels generally expected to be
found in the least impacted 25% of freshwater rivers and streams
nationally. Based on this screening analysis, the discharge of
nutrients from petroleum refining facilities does not appear to support
the development of national categorical effluent limitations for these
pollutants at this time. The complete analysis is available in the
Docket accompanying this notice.
In light of the foregoing information, EPA has concluded that
scheduling the existing effluent guidelines for Petroleum Refining
(Part 419) for possible revision to address dioxin or PACs or to revise
the limitations on sulfide and ammonia-nitrogen would not be an
appropriate use of the Agency's resources at this time.
Even though EPA has no present plans to revise the effluent
guidelines for the petroleum refineries category to include limitations
on dioxin or PACs, EPA notes that permit writers can include
limitations for these pollutants on a case-by-case, best professional
judgment basis under 40 CFR 125.3. Moreover, EPA encourages all permit
writers and refineries to consider pollution prevention opportunities
to the extent possible in developing and complying with permit
limitations in the future. Indeed, EPA has received information on
pollution prevention opportunities currently employed at refineries. In
particular, the Washington Sate Department of Ecology published a
document entitled ``Water Pollution Prevention Opportunities in
Petroleum Refineries,'' which describes opportunities in the area of
general operating and maintenance practices and procedures, and design
revisions and modifications to various refining processes.
As part of its review of the Petroleum Refining effluent
limitations guidelines, EPA considered whether any additional
subcategories should be added. EPA identified petroleum bulk stations
and terminals (PBSTs) as a potential additional subcategory. In
considering whether the Petroleum Refining effluent guidelines should
be revised to address discharges from PBSTs, EPA gathered all readily
available information during the 2004 annual review. EPA decided to
consider PBSTs in its review of the Petroleum Refining point source
category (Part 419) because of potential similarities in operations
performed, wastewaters generated, and available pollution prevention
and treatment options. EPA learned that large numbers of PBSTs
discharge no toxic wastewater. Year 2000 TRI data indicate that two-
thirds of the industry are zero-discharge facilities (335 of 502 TRI
reporting facilities). Two of the facilities with high TWPE discharges
of polynuclear aromatic compounds (PACs) in the PCS data base were
associated with groundwater remediation, not discharges from PBST
operations, according to comments received. These data are generally in
agreement with what the Agency has been able to learn from control
authorities across the country. By and large, control authorities
believe that small dischargers prefer to collect their contaminated
wastewaters (e.g., contaminated storm water, tank bottoms water, and
equipment wash water) and send them to a refinery or commercial
recycler for oil recovery or ship them offsite for treatment. The use
of Best Management Practices (BMPs) and pollution prevention techniques
is becoming more widespread in this industrial sector, although EPA has
no data as yet quantifying the effects of these measures.
Available data indicate that toxic discharges from this industry
segment are contributed by a small number of facilities. Only four
facilities account for more than 95 percent of the total TWPE reported
in Year 2000 TRI data. The top reporting facility represents more than
40 percent of the total TRI TWPE discharges and is no longer in
operation. The number two facility, accounting for 33% of the total
loading, is associated with a former refinery, and these discharges
represented groundwater remediation discharges, not discharges
associated with operation of the
[[Page 53716]]
terminal. An assessment of the PCS data provides similar results. Only
two facilities account for more than 99 percent of the total TWPE
reported in Year 2000 PCS data. Given these toxic discharge
distributions, EPA concluded that individual facility permit support,
rather than a national effluent guidelines rulemaking, may be the most
appropriate course of action.
While EPA is deferring the development of effluent guidelines for
PBSTs as an additional subcategory under Part 419, EPA will continue to
examine this industrial activity in future review cycles.
3. Review of Other Effluent Guidelines Promulgated Under Section 304(b)
Table V-1 presents additional findings from EPA's 2004 annual
review. The Table uses the following codes to describe the reasons EPA
has decided at this time not to schedule for possible revision the
effluent guidelines promulgated for particular industrial categories.
More discussion on each point source category is presented in the
Docket accompanying this notice.
(1) Effluent guidelines for this industrial category were recently
revised or reviewed through an effluent guidelines rulemaking.
(2) A national effluent guidelines rulemaking is not the best tool
for establishing technology-based effluent limitations for this
industrial category because most of the toxic and non-conventional
pollutant discharges are from one or a few facilities in this
industrial category. EPA will consider assisting permitting authorities
in identifying pollutant control and pollution prevention technologies
for the development of technology-based effluent limitations by best
professional judgment (BPJ) on a facility-specific basis.
(3) Not identified as a hazard or risk priority based on data
available at this time.
(4) Incomplete data available for full analysis. EPA intends to
collect more information for the next annual review.
(5) All or nearly all sources engaged in this industrial activity
are indirect dischargers, subject to review under 304(g) not 304(b).
Table V-1.--Findings From the 2004 Annual Review of Other Effluent
Guidelines Promulgated Under Section 304(b)
------------------------------------------------------------------------
Industry category
No. (listed 40 CFR part Findings[dagger]
alphabetically)
------------------------------------------------------------------------
1....... Aluminum Forming.... 467 (3)
2....... Aquatic Animal 451 (1)
Production Industry.
3....... Asbestos 427 (3)
Manufacturing.
4....... Battery 461 (3)
Manufacturing.
5....... Canned and Preserved 407 (3)
Fruits and
Vegetable
Processing.
6....... Canned and Preserved 408 (3)
Seafood Processing.
7....... Carbon Black 458 (3)
Manufacturing.
8....... Cement Manufacturing 411 (3)
9....... Centralized Waste 437 (1)
Treatment.
10...... Coal Mining......... 434 (1) and (3)
11...... Coil Coating........ 465 (5)
12...... Concentrated Animal 412 (1)
Feeding Operations
(CAFO).
13...... Copper Forming...... 468 (3)
14...... Dairy Products 405 (3)
Processing.
15...... Electrical and 469 (3)
Electronic
Components.
16...... Electroplating...... 413 (1)
17...... Explosives 457 (3)
Manufacturing.
18...... Ferroalloy 424 (3)
Manufacturing.
19...... Fertilizer 418 (4)
Manufacturing.
20...... Glass Manufacturing. 426 (3)
21...... Grain Mills......... 406 (3)
22...... Gum and Wood 454 (3)
Chemicals.
23...... Hospitals........... 460 (5)
24...... Ink Formulating..... 447 (3)
25...... Iron and Steel 420 (1)
Manufacturing.
26...... Landfills........... 445 (1)
27...... Leather Tanning and 425 (3)
Finishing.
28...... Meat and Poultry 432 (1)
Products.
29...... Metal Finishing..... 433 (1)
30...... Metal Molding and 464 (4)
Casting.
31...... Metal Products and 438 (1)
Machinery.
32...... Mineral Mining and 436 (3)
Processing.
33...... Nonferrous Metals 471 (3)
Forming and Metal
Powders.
34...... Nonferrous Metals 421 (4)
Manufacturing.
35...... Oil and Gas 435 (1) and (4)
Extraction.
36...... Ore Mining and 440 (4)
Dressing.
37...... Paint Formulating... 446 (3)
38...... Paving and Roofing 443 (3)
Materials (Tars and
Asphalt).
39...... Pesticide Chemicals. 455 (3)
40...... Petroleum Refining.. 419 See section V.B.2
41...... Pharmaceutical 439 (1)
Manufacturing.
42...... Phosphate 422 (3)
Manufacturing.
43...... Photographic........ 459 (3)
44...... Plastic Molding and 463 (3)
Forming.
45...... Porcelain Enameling. 466 (3)
46...... Pulp, Paper, and 430 (1), (2), (4)
Paperboard.
47...... Rubber Manufacturing 428 (3)
[[Page 53717]]
48...... Soaps and Detergents 417 (3)
Manufacturing.
49...... Steam Electric Power 423 (4)
Generation.
50...... Sugar Processing.... 409 (3)
51...... Textile Mills....... 410 (4)
52...... Timber Products 429 (4)
Processing.
53...... Transportation 442 (1) and (5)
Equipment Cleaning.
54...... Waste Combustors.... 444 (1)
------------------------------------------------------------------------
[dagger]Note: The descriptions of the ``Findings'' codes are presented
immediately prior to this table.
VI. EPA's 2005 Review of Effluent Guidelines Promulgated Under Section
304(b)
As discussed in section V and further in section VII, EPA is
coordinating its annual review obligation under CWA section 304(b) with
the requirements to provide for public comment on a preliminary Plan
and then publish a biennial Effluent Guidelines Program Plan under
section 304(m). EPA's 2003 review and public comments received on the
preliminary Plan helped the Agency prioritize its analysis of existing
categories during the 2004 review. The information gathered during the
2004 annual review, including the identification of data gaps in the
analysis of certain existing industry categories, in turn provides a
starting point for EPA's 2005 annual review. See Table V-1 above and
Section 5 of the Technical Support Document. In 2005, EPA intends to
conduct a screening-level analysis of all 56 industry categories and
compare the results against those from previous years. Based on these
results and other information gathered during previous years, EPA will
conduct more detailed analyses of those industries that rank high in
terms of toxic and non-conventional discharges among all point source
categories. EPA specifically invites comment and data on the various 56
sets of effluent guidelines.
VII. The Final 2004 Effluent Guidelines Program Plan Under Section
304(m): Identification of Point Source Categories and Schedule for
Future Effluent Guidelines Rulemakings
On December 31, 2003, EPA published and sought public comments on
the preliminary Effluent Guidelines Program Plan for 2004/2005. See 68
FR 75515 (Dec. 31, 2003). The comment period closed on March 18, 2004.
See 69 FR 6984 (Feb. 12, 2004). The Agency received 59 comments from a
variety of commenters including industry and industry trade
associations, municipalities and sewerage agencies, environmental
groups, other advocacy groups, two tribal governments, a private
citizen, a Federal agency, and a State government agency. Many of these
public comments are discussed in today's notice. The Docket
accompanying today's notice includes a complete set of all of the
comments submitted, as well as the Agency's responses (see DCN 01026,
section 4.0).
A. EPA's Schedule for Annual Review and Revision of Existing Effluent
Guidelines Under Section 304(b)
1. Schedule for 2005 and 2006 Annual Reviews under Section 304(b)
As noted in section IV.B, CWA section 304(m)(1)(A) requires EPA to
publish a plan every two years that establishes a schedule for the
annual review and revision, in accordance with section 304(b), of the
effluent guidelines that EPA has promulgated under that section.
Today's plan announces EPA's schedule for performing its section 304(b)
reviews for 2005 and 2006. The schedule is as follows: to coordinate
its annual review of existing effluent guidelines under section 304(b)
with its publication of preliminary and final Effluent Guidelines
Program Plan under CWA section 304(m). In other words, in odd-numbered
years, EPA intends to complete its annual review upon publication of
the preliminary Effluent Guidelines Program Plan that EPA must publish
for public review and comment under CWA section 304(m)(2). In even-
numbered years, EPA intends to complete its annual review upon the
publication of the final Plan. EPA's 2005 annual review is the review
cycle ending upon the publication of the preliminary Plan in 2005 and
its 2006 annual review is the review cycle ending upon publication of
the 2006 final Plan.
As previously mentioned, the CWA requires the final Plan to be
published biennially with an opportunity for public comment. During the
current planning cycle, EPA published the results of its 2003 review
along with the preliminary Plan on December 31, 2003 (68 FR 75515).
This gave EPA approximately five months to consider public comments and
to gather and analyze additional data for the 2004 review and final
2004 Plan. EPA would expect to follow a similar schedule for the 2005
review and the preliminary and final 2006 Plan. Specifically, EPA
intends to publish and take comment on the next preliminary Effluent
Guidelines Plan in 2005. EPA will consider these public comments and
take final action on the final 2006 Plan by August 26, 2006.
EPA is coordinating its annual reviews under section 304(b) with
publication of plans under section 304(m) for several reasons. First,
the annual review is inextricably linked to the planning effort,
because the results of each annual review can inform the content of the
preliminary and final Effluent Guidelines Program Plans, e.g., by
calling to EPA's attention point source categories for which EPA has
not promulgated effluent guidelines. Second, even though not required
to do so under either section 304(b) or section 304(m), EPA believes
that the public interest is served by periodically presenting to the
public a description of each annual review (including the review
process employed) and the results of the review. Doing so at the same
time EPA publishes preliminary and final plans makes both processes
more transparent. Third, by requiring EPA to review all existing
effluent guidelines each year, Congress appears to have intended that
each successive review would build upon the results of earlier reviews.
Therefore, by describing the 2004 annual review along with the 2004
effluent limitations guidelines Plan, EPA hopes to gather and receive
data and information that will inform its review for 2005 and beyond.
2. Schedule for Possible Revision of Effluent Guidelines Promulgated
Under Section 304(b).
EPA intends to start the rulemaking for the vinyl chloride and
chlor-alkali industrial sectors in March 2005. Using its authorities
under CWA section 308
[[Page 53718]]
and consistent with the requirements of the Paperwork Reduction Act,
EPA, as its first rulemaking step, expects to develop and distribute a
questionnaire to facilities within these sectors. These data becomes
the foundation for any proposed rule because they provide the record
basis for EPA's assessment of candidate technologies and their economic
achievability. Therefore, only after gathering, validating and
analyzing the data would EPA be ready to propose revised effluent
guidelines for these sectors. Based on past experience, this stage of
the process can take several years. EPA's schedule for this rulemaking
also will need to take into account the need for the Agency to first
focus on guidelines rulemakings for the Airport Deicing Operations and
the Drinking Water Supply and Treatment industrial sectors, which EPA
is required under CWA section 304(m)(1)(C) to complete within three
years. See Section VI.B, below. EPA is not scheduling any other
existing effluent guidelines for rulemaking at this time. See Section
V.B.1.
EPA emphasizes that announcing a rulemaking schedule for these
point source categories does not constitute a final decision to revise
the applicable effluent guidelines. Identifying an existing effluent
guideline for possible revision is not the end of a regulatory process,
but rather the beginning of one. EPA would make any such effluent
guidelines revisions--supported by an administrative record following
an opportunity for public comment--only in connection with a formal
rulemaking process, subject to the authorities and constraints of CWA
sections 301(b), 304(b) and 306 and the Administrative Procedure Act.
At any point in this process, EPA may find that regulatory revisions
are not appropriate and may discontinue regulatory revision efforts at
that time. EPA would use the 304(m) planning process to announce and
solicit public comment on any such decision. EPA would continue to
review the existing effluent guidelines, however, as part of each
annual review under section 304(b).
B. Identification of Point Source Categories Under CWA Section
304(m)(1)(B)
The Effluent Guidelines Program Plan must identify categories of
sources discharging non-trivial amounts of toxic or non-conventional
pollutants for which EPA has not published effluent limitations
guidelines under section 304(b)(2) or new source performance standards
(NSPS) under section 306. See CWA section 304(m)(1)(B). The Plan must
also establish a schedule for the promulgation of effluent guidelines
for the categories identified under section 304(m)(1)(B) not later than
three years after such identification. See CWA section 304(m)(1)(C).
Today's 2004 Effluent Guidelines Program Plan identifies two industrial
categories pursuant to section 304(m)(1)(B).
1. Process for Identifying Industrial Categories for Which EPA Has Not
Promulgated Effluent Guidelines
The universe of industrial categories potentially subject to
section 304(m)(1)(B) is limited. First, this analysis applies only to
industrial categories for which EPA has not promulgated effluent
guidelines, not to unregulated subcategories or pollutants within a
currently regulated industrial category. The distinction between a
category (reflecting an industry as a whole) and a subcategory
(reflecting differences among segments of the industry) has long been
recognized by the U.S. Supreme Court. See, e.g., Chemical Mfrs. Ass'n
v. NRDC, 470 U.S. 116, 130, 132 n.24 (1985). Thus, EPA's first decision
criterion asks whether an industrial operation or activity in question
is properly characterized--in a broad sense--as an industry
``category'' or more narrowly as a segment of that industry (i.e., a
subcategory). The list of ``categories of sources'' set forth at
section 306(b)(1)(A) (e.g., pulp and paper mills, organic chemicals
manufacturing, steam electric powerplants) suggests that this term
encompasses a broad array of related industrial operations and is not
meant to refer to specific activities within the industrial sector
itself. The concept that ``category'' is a broad term is reinforced by
section 304(b)(2) itself: When promulgating effluent limitations
guidelines and standards for a ``category,'' EPA must take into account
specific factors that, as the U.S. Supreme Court recognized, often lead
to the use of ``subcategories.'' See E.I.du Pont de Nemours & Co. v.
Train, 430 U.S. 112, 131 n.21 (1977). Indeed, the effluent guideline
considered by the U.S. Supreme Court in du Pont was divided into 22
subcategories, each with its own set of technology-based limitations
reflecting variations in processes, products, and pollutants. Id. at
122 & nn 9 & 10.
EPA interprets section 304(m)(1)(B) in view of this long history
and consequently construes that section to apply to categories, not
subcategories, for which EPA has not promulgated effluent limitations
guidelines and standards. This does not mean, however, that EPA ignores
these subcategories. To the contrary, EPA considers the need to address
additional subcategories and pollutants as part of its annual review of
existing effluent guidelines. For example, as part of its annual review
under CWA section 304(b), EPA reviewed the following industrial
operations as potential additional subcategories of existing effluent
guidelines: (1) Petroleum Bulk Stations and Terminals (SIC 5171), which
EPA reviewed as a potential additional subcategory under Petroleum
Refining (Part 419); and (2) Chemical Formulating, Packaging, and
Repackaging (including Adhesives and Sealants) operations, which EPA
reviewed as a potential additional subcategory under Organic Chemicals,
Plastics, and Synthetic Fibers (Part 414).
The second criterion EPA considers when implementing section
304(m)(1)(B) also derives from the plain text of that section. By its
terms, CWA section 304(m)(1)(B) applies only to industrial categories
to which effluent guidelines under section 304(b)(2) or section 306
would apply, if promulgated. Therefore, for purposes of section
304(m)(1)(B), EPA would not identify industrial categories composed
exclusively or almost exclusively of indirect discharging facilities
regulated under section 307 (see section 304(g)) or categories for
which other CWA controls take precedence over effluent guidelines,
e.g., POTWs regulated under CWA section 301(b)(1)(B) or municipal storm
water runoff regulated under CWA section 402(p)(3)(B).
Third, the analysis under CWA section 304(m)(1)(B) applies only to
industrial categories of sources that are discharging non-trivial
amounts of toxic or non-conventional pollutants to waters of the United
States. EPA did not consider, under this analysis, industrial
activities where conventional pollutants, rather than toxic or non-
conventional pollutants, are the pollutants of concern. For example,
although EPA had identified stormwater discharges from construction and
development as a new category in its 2000 and 2002 effluent guidelines
program plans, EPA is not identifying construction and development in
this 2004 plan based on new information that discharges from this
activity consist predominately of conventional pollutants under CWA
Sec. 304(a)(4), in this case total suspended solids. In addition, even
when toxic and non-conventional pollutants might be present in an
industrial category's discharge, the analysis under 304(m)(1)(B) does
not apply when those discharges occur in trivial amounts. EPA does not
believe that it is necessary, nor was it Congressional
[[Page 53719]]
intent, to develop national effluent guidelines for categories of
sources that are likely to pose an insignificant risk to human health
or the environment due to their trivial discharges. See Senate Report
Number 50, 99th Congress, 1st Session (1985); WQA87 Legislative History
31. This decision criterion leads EPA to focus on those remaining
industrial categories where, based on currently available information,
new effluent guidelines have the potential to address a non-trivial
hazard or risk to human health or the environment associated with toxic
or non-conventional pollutants. Thus, EPA might judge in 2004, based on
information available at that time, that the toxic and non-conventional
pollutant discharges from sources within an industrial category are
trivial, and then, based on changes in the industry or new information,
reach a different conclusion in 2006 or later.
Moreover, priority-setting is intrinsic to any planning exercise,
and EPA regards this criterion as a priority-setting tool. Because
section 304(m)(1)(C) requires that EPA complete an effluent guidelines
rulemaking within three years of identifying an industrial category in
a 304(m) plan, it is important that EPA have the discretion to
prioritize its identification of new industrial categories so that it
can use available resources effectively, and identify only those
industrial categories where an effluent guideline is an appropriate
tool to achieve environmental results. The Clean Water Act specifically
contemplated that effluent guidelines would not be the only solution to
all water quality problems.
EPA interprets section 304(m), including its requirement that EPA
identify in a plan any industrial categories for which it might
promulgate effluent guidelines, as a mechanism designed to promote
regular and transparent priority-setting on the part of the Agency. A
plan, ultimately, is a statement of choices and priorities. See Norton
v. Southern Utah Wilderness Alliance, et al., 124 S. Ct. 2373, 2383
(2004). Identifying an industrial activity for possible effluent
guideline rulemaking reflects EPA's view, at the time the plan is
issued, that a national categorical regulation may be an appropriate
tool to accomplish the desired environmental results. Similarly,
announcing a schedule reflects EPA's assignment of priorities, taking
into account all of the other statutory mandates and policy initiatives
designed to implement the CWA's goals and the funds appropriated by
Congress to execute them. By requiring EPA to publish its plan,
Congress assured that EPA's priority-setting processes would be
available for public viewing. By requiring EPA to solicit comments on
preliminary plans, Congress assured that interested members of the
public could contribute ideas and express policy preferences. Finally,
by requiring publication of plans every two years, Congress assured
that EPA would regularly re-evaluate its past policy choices and
priorities (including whether to identify an industrial activity for
effluent guidelines rulemaking) to account for changed circumstances.
Ultimately, however, Congress left the content of the plan to EPA's
discretion--befitting the role that effluent guidelines play in the
overall structure of the CWA and their relationship to other tools for
addressing water pollution. Considering the full scope of the mandates
and authorities established by the CWA, of which effluent guidelines
are only a part, EPA needs the discretion to promulgate new effluent
guidelines in a phased, orderly manner. Otherwise, EPA might find
itself commencing an effluent guidelines rulemaking when none is
actually needed for the protection of human health or the environment.
By crafting section 304(m) as a planning mechanism, Congress has given
EPA that discretion.
In its exercise of this discretion, EPA has identified two new
candidates for effluent guidelines rulemaking for this final Plan: (1)
Airport Deicing Operations; and (2) Drinking Water Supply and
Treatment. Pursuant to section 304(m)(1)(C), EPA is scheduling two
effluent guidelines rulemakings for these industrial point source
categories and intends to take final action for each of these effluent
guidelines rulemakings by September 3, 2007. No other industrial
category met the criteria of section 304(m)(1)(B).
As noted above, announcing a rulemaking schedule for these point
source categories does not constitute a final decision that effluent
guidelines in fact are appropriate for the identified point source
categories. EPA would make any such effluent guidelines revisions--
supported by an administrative record following an opportunity for
public comment--only in connection with a formal rulemaking process,
subject to the authorities and constraints of CWA sections 301(b),
304(b) and 306 and the Administrative Procedure Act. At any point in
this process, EPA may find that promulgating effluent guidelines are
not appropriate and may discontinue the rulemaking process at that
time. EPA would use the 304(m) planning process to announce and solicit
public comment on any such decision.
2. Discharges From Airport Deicing Operations
In the preliminary Plan, EPA noted that it had inadequate data to
determine if discharges from this industry were non-trivial, and stated
that it would obtain more data in future planning cycles. Public
comments on the preliminary Plan suggested that EPA consider developing
effluent guidelines for this industrial sector because of the potential
for facilities in this industrial sector to discharge non-trivial
amounts of non-conventional and toxic pollutants. In particular,
commenters stated that airport deicing fluid (ADF) is not properly
recaptured and re-used or properly treated before discharge. Commenters
also stated that these discharges can cause significant harm to natural
resources such as fish kills, algae blooms, and contamination to
surface or ground waters.
In the docket for the preliminary Plan, EPA's primary source of
wastewater discharge information for this industry is its ``Preliminary
Data Summary: Airport Deicing Operations'' which was published in
August 2000 (EPA-821-R-00-016). This study focused on approximately 200
airports in the United States with potentially significant deicing/
anti-icing operations. The major source of pollutant discharges from
deicing operations is storm water contaminated by deicing agents, which
typically contain water, glycols and additives. However, the study
showed that there was great disparity among airports in terms of permit
requirements. Some airports, generally those with stringent storm water
discharge permits, had made great strides in terms of wastewater
collection, containment, pollution prevention and/or recycling/
treatment programs. Other airports, however, were much less advanced.
At the time of the study, EPA estimated that the industry annually
discharged to surface waters approximately 21 million gallons of ADF.
EPA also estimated that full implementation of storm water permits
would reduce these discharges to 17 million gallons annually. Finally,
the study also estimated possible reductions in ADF discharges if
effluent limitations guidelines and standards were implemented for
discharges resulting from aircraft deicing operations. Using results
from technologies and pollution prevention practices employed at some
of the better performing airports, EPA estimated annual surface water
discharges could be reduced to 4
[[Page 53720]]
million gallons. Due to the variety of ADFs in use and the limited
information on the chemical composition of these ADFs, EPA was unable
to estimate the toxic-weighted pollutant discharges associated with
these potential effluent reductions. Following the publication of the
preliminary Plan, EPA collected additional information and revisited
the information in its docket.
Since the preliminary Plan, EPA conducted a review of current and
proposed discharge permits for over twenty airports. This review
indicates that while some airports have more stringent permits and have
reduced their ADF discharges since EPA's earlier study was conducted,
significant disparity continues among discharge requirements. For
example, some airports are required to comply with numeric effluent
limitations, e.g., 2 mg/L ADF, while others are required to meet non-
numeric effluent limitations, in the form of BMPs. Monitoring
requirements vary as well. Based on the information in its study and a
review of this permit information, EPA has concluded that it is
appropriate to identify the discharges from airport deicing operations
in this final Plan and to take final action on effluent guidelines
within three years of the publication of today's notice. See CWA
section 304(m)(1)(C).
Consistent with CWA section 301(a), effluent guidelines for this
point source category would only apply to wastewaters from airport
deicing operations that are considered point source discharges. In
particular, wastewaters from airport deicing operations that discharge
through a ``conveyance used for collecting and conveying storm water''
are considered point source discharges and are required to obtain NPDES
permits (see 40 CFR 122.26). Like any NPDES permit, these permits must
contain technology-based limits, and any more stringent limitations
necessary to achieve applicable water quality standards. See CWA
section 301(b)(2)(A) and 301(b)(1)(C). If EPA promulgates effluent
limitation guidelines for this industrial category, technology-based
limitations in such permits would need to be based on the applicable
effluent guideline. See CWA section 301(b)(2)(A). As is currently the
case, discharges from airport deicing operations that are non-point
sources (e.g., ADF shedding from the airplane after it leaves the
airport) would not require an NPDES permit to discharge to navigable
waters of the U.S. and would not be subject to any potential effluent
guidelines. In other words, any new effluent guidelines for this point
source category would affect the content of technology-based permit
limitations, but would not change the universe of airports that are or
are not required to obtain NPDES permits.
3. Drinking Water Supply and Treatment
EPA did not identify the Drinking Water Supply and Treatment
industrial sector (SIC Code 4941) as a potential candidate for effluent
guidelines development in the preliminary Plan. At that time, EPA
concluded that almost all of the hazard posed by this industrial sector
was due to a few facilities. In particular, EPA's analysis showed that
a single facility was contributing over 96% of the toxic-weighted
pollutant discharges included in PCS for the entire industrial sector.
Public comments on the preliminary Plan suggested that EPA consider
developing effluent guidelines for this industrial sector because of
the potential of drinking water supply and treatment plants to
discharge non-trivial amounts of non-conventional and toxic pollutants
(e.g., metals and salts). In particular, commenters stated that many
drinking water facilities have the potential to discharge significant
quantities of conventional and toxic pollutants, and noted that the
source of these pollutants can include drinking water treatment sludges
and reverse osmosis reject wastewaters. Consequently, EPA attempted to
collect additional information and re-evaluated the information in the
docket supporting today's final Plan.
Based on information in the 1997 Economic Census, EPA estimates
there are 3,700 drinking water treatment and supply facilities in the
United States. EPA's primary source of wastewater data for this
industry is EPA's Permit Compliance System (PCS). This database
contains information required by the NPDES Permit Program for major
dischargers across the country. A major discharger is any NPDES
facility or activity classified as such by the Regional Administrator,
or, in the case of approved State Programs, the Regional Administrator
in conjunction with the State Director. Major industrial facilities are
determined based on specific ratings criteria developed by EPA and
approved State Programs. EPA does not require States to include data
for other dischargers (e.g., minor and indirect dischargers) in PCS, so
little information is available about industries like this one that are
dominated by minor and indirect dischargers. PCS lists approximately
900 drinking water supply and treatment facilities as having minor
permits for the year 2000, but includes only limited data on discharge
flow or pollutant concentrations for these dischargers. Consequently,
EPA was unable to quantify discharges from these facilities. PCS also
contained information on sixteen drinking water supply and treatment
facilities with major permits for the year 2000 which EPA was able to
analyze.
EPA found that the toxic-weighted pollutant discharges for these
sixteen facilities ranged from significant to very low, with the
majority attributable to the discharges from three facilities. Total
residual chlorine and metals (e.g., iron, manganese, and aluminum)
represent most of the TWPE discharges from these three facilities. For
the remaining 13 facilities, PCS data indicate that pollutants are
being discharged at or near the detection levels, raising questions
about further treatability of these pollutants using end-of-pipe
treatment. More recent PCS information suggests the TWPE discharges at
some of these sixteen facilities have decreased. In particular, two of
the three facilities with top hazard scores for the year 2000 had
significant reductions in their pollutant discharges within the last
four years. One facility discontinued its wastewater discharges and the
other facility recently added technology to properly dewater its
wastewater treatment sludges which resulted in pollutant reductions of
85% or more.
While this PCS data suggest that many drinking water supply and
treatment facilities with direct discharging permits are not
discharging pollutants in significant concentrations, it also supports
commenters' statements that some drinking water treatment and supply
facilities may be discharging non-trivial amounts of toxic and non-
conventional pollutants. Because EPA only has discharge data on a
limited number of facilities in this category, and this data shows at
least one facility with potentially non-trivial discharges, EPA cannot
rule out the possibility that a significant number of the facilities in
this category have non-trivial discharges. Therefore, EPA has decided
to identify the drinking water supply and treatment industry sector in
this final Plan and to complete an effluent guidelines rulemaking for
this industry within three years. See CWA section 304(m)(1)(C). As the
first step in this process, EPA will attempt to gather additional
discharge data on this point source category.
Under Executive Order 12866, [58 Federal Register 51735 (October 4,
1993)] the Agency must determine whether a ``regulatory action'' is
``significant'' and therefore subject to
[[Page 53721]]
OMB review and the requirements of the Executive Order. The Order
defines the term ``regulatory action'' to include any substantive
action by an agency (normally published in the Federal Register) that
is expected to lead to the promulgation of a final rule or regulation.
While EPA does not normally publish plans and priority-setting
documents such as this 2004 Plan in the Federal Register, EPA is
required by statute to do so here. The Order also defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.''
Pursuant to the terms of Executive Order 12866, it has been
determined that this notice constitutes a ``significant regulatory
action'' within the meaning of the Executive Order. EPA has thus
submitted this notice to OMB for review. Changes made in response to
OMB suggestions or recommendations will be documented in the public
record.
Dated: August 26, 2004.
Benjamin H. Grumbles,
Acting Assistant Administrator for Water.
[FR Doc. 04-20040 Filed 9-1-04; 8:45 am]
BILLING CODE 6560-50-P