[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]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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
----------------------------------------------------------------------------------------------------------------
   Point source category (EPA web      CFR     Federal Register citation: proposal
               sites)                  part                   (Date)                      Final action date
----------------------------------------------------------------------------------------------------------------
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).....................
----------------------------------------------------------------------------------------------------------------
[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