[Federal Register Volume 71, Number 245 (Thursday, December 21, 2006)]
[Notices]
[Pages 76644-76667]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21825]
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ENVIRONMENTAL PROTECTION AGENCY
[EPA-HQ-OW-2004-0032; FRL-8259-1]
RIN 2040-AE76
Notice of Availability of Final 2006 Effluent Guidelines Program
Plan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Final 2006 Effluent Guidelines Program Plan.
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SUMMARY: EPA establishes national technology-based regulations known as
effluent guidelines and pretreatment standards to reduce pollutant
discharges from categories of industry discharging directly to waters
of the United States or discharging indirectly through Publicly Owned
Treatment Works (POTWs). The Clean Water Act (CWA) sections 301(d),
304(b), 304(g), and 307(b) require EPA to annually review these
effluent guidelines and pretreatment standards.
[[Page 76645]]
This notice presents EPA's 2006 review of existing effluent guidelines
and pretreatment standards. It also presents EPA's evaluation of
indirect dischargers without categorical pretreatment standards to
identify potential new categories for pretreatment standards under CWA
sections 304(g) and 307(b). This notice also presents the final 2006
Effluent Guidelines Program Plan (``final 2006 Plan''), which, as
required under CWA section 304(m), identifies any new or existing
industrial categories selected for effluent guidelines rulemaking and
provides a schedule for such rulemaking. CWA section 304(m) requires
EPA to biennially publish such a plan after public notice and comment.
The Agency published the preliminary 2006 Plan on August 29, 2005 (70
FR 51042). This notice also provides EPA's preliminary thoughts
concerning its 2007 annual reviews under CWA sections 301(d), 304(b),
304(g) and 307(b) and solicits comments, data and information to assist
EPA in performing these reviews. EPA intends to continue a detailed
study of the steam electric power generating industry and start
detailed studies for the following industrial sectors: the coal mining
industry, the health services industry, and the coalbed methane
industry, which is part of the oil and gas extraction industry.
Finally, after two public comment periods, this notice discusses how
EPA incorporates elements from the draft Strategy for National Clean
Water Industrial Regulations (Strategy) into its effluent guidelines
reviews and planning.
ADDRESSES: Submit your comments, data and information for the 2007
annual review, identified by Docket ID No. EPA-HQ-OW-2006-0771, by one
of the following methods:
(1) www.regulations.gov. Follow the on-line instructions for
submitting comments.
(2) E-mail: [email protected], Attention Docket ID No. EPA-HQ-OW-
2006-0771.
(3) Mail: Water Docket, Environmental Protection Agency, Mailcode:
4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention
Docket ID No. EPA-HQ-OW-2006-0771. Please include a total of 3 copies.
(4) Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room
B102, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID
No. EPA-HQ-OW-2006-0771. Such deliveries are only accepted during the
Docket's normal hours of operation and special arrangements should be
made.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2006-
0771. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment 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 regulations.gov or e-mail. The
federal regulations.gov Web site is an ``anonymous access'' system,
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 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.
Docket: All documents in the docket are listed in the index at
www.regulations.gov. Although listed in the index, some information is
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 at www.regulations.gov or in hard copy
at the Water Docket in the EPA Docket Center, EPA/DC, EPA West, Room
3334, 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.
Key documents providing additional information about EPA's annual
reviews and the final 2006 Effluent Guidelines Program Plan include the
following:
Interim Detailed Study Report for the Steam Electric Power
Generating Point Source Category, EPA-821-R-06-015, DCN 3401;
Final Report: Pulp, Paper, and Paperboard Detailed Study,
EPA-821-R-06-016, DCN 3400;
Final Engineering Report: Tobacco Products Processing
Detailed Study, EPA-821-R-06-017, DCN 3395; and
Technical Support Document for the 2006 Effluent
Guidelines Program Plan, EPA-821-R-06-018, DCN 3402.
FOR FURTHER INFORMATION CONTACT: Mr. Carey A. Johnston at (202) 566-
1014 or [email protected], or Ms. Jan Matuszko at (202) 566-1035
or [email protected].
SUPPLEMENTARY INFORMATION:
How Is This Document Organized?
The outline of this notice follows.
I. General Information
II. Legal Authority
III. What Is the Purpose of This Federal Register Notice?
IV. Background
V. EPA's 2006 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
and 307(b)
VI. EPA's 2007 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
and 307(b)
VII. EPA's Evaluation of Categories of Indirect Dischargers Without
Categorical Pretreatment Standards To Identify Potential New
Categories for Pretreatment Standards
VIII. The Final 2006 Effluent Guidelines Program Plan Under Section
304(m)
IX. Status of ``Strategy for National Clean Water Industrial
Regulations'' and EPA's Effluent Guidelines Reviews and Planning
I. General Information
A. Does This Action Apply to Me?
This notice simply provides a statement of the Agency's effluent
guidelines review and planning processes and priorities at this time,
and does not contain any regulatory requirements.
B. What Should I Consider as I Prepare My Comments for EPA for the 2007
Review?
1. Submitting Confidential Business Information
Do not submit this information to EPA through www.regulations.gov
or e-mail. Clearly mark the part or all of the information that you
claim to be CBI. For CBI information in a disk or CD-ROM that you mail
to EPA, mark the outside of the disk or CD-ROM as CBI and then identify
electronically within the disk or CD-ROM the specific information that
is claimed as CBI. In
[[Page 76646]]
addition to one complete version of the comment that includes
information claimed as CBI, a copy of the comment that does not contain
the information claimed as CBI must be submitted for inclusion in the
public docket. Information so marked will not be disclosed except in
accordance with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments
When submitting comments, remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
II. Legal Authority
This 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), 306, and 307(b), 33 U.S.C. 1311(d), 1314(b), 1314(g), 1314(m),
1316, and 1317.
III. What Is the Purpose of This Federal Register Notice?
This notice presents EPA's 2006 review of existing effluent
guidelines and pretreatment standards under CWA sections 301(d),
304(b), 304(g) and 307(b). It also presents EPA's evaluation of
indirect dischargers without categorical pretreatment standards to
identify potential new categories for pretreatment standards under CWA
sections 304(g) and 307(b). This notice also presents the final 2006
Effluent Guidelines Program Plan (``final 2006 Plan''), which, as
required under CWA section 304(m), identifies any new or existing
industrial categories selected for effluent guidelines rulemaking and
provides a schedule for such rulemaking. CWA section 304(m) requires
EPA to biennially publish such a plan after public notice and comment.
The Agency published the preliminary 2006 Plan on August 29, 2005 (70
FR 51042). This notice also provides EPA's preliminary thoughts
concerning its 2007 annual reviews under CWA sections 301(d), 304(b),
304(g) and 307(b) and solicits comments, data and information to assist
EPA in performing these reviews. Finally, after two public comment
periods, this notice discusses how EPA incorporates elements from the
draft Strategy for National Clean Water Industrial Regulations
(Strategy) into its effluent guidelines reviews and planning.
IV. Background
A. What Are Effluent Guidelines and Pretreatment Standards?
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 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 (44 FR 44501). 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 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)
and (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
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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 facilities
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
301(d), 304(b), 304(g), 304(m), and 307(b)?
1. EPA's Review and Planning Obligations Under Sections 301(d), 304(b),
and 304(m)--Direct Dischargers
Section 304(b) requires EPA to review its existing effluent
guidelines for direct dischargers each year and to revise such
regulations ``if appropriate.'' 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 for
possible revision as a result of that annual review. 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
(indicating that section 304(m)(1)(B) applies to ``non-trivial
discharges.''). 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, providing for
final action on such rulemaking not later than three years after the
industrial category is identified in a final Plan.\1\ See CWA section
304(m)(1)(C). EPA is required to publish its preliminary Plan for
public comment prior to taking final action on the plan. See CWA
section 304(m)(2).
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\1\ EPA recognizes that one court--the U.S District Court for
the Central District of California--has found that EPA has a duty to
promulgate effluent guidelines within three years for new categories
identified in the Plan. See NRDC et al. v. EPA, No. 04-8307, 2006 WL
1834260 (C.D. Ca, June 27, 2006). However, EPA continues to believe
that the mandatory duty under section 304(m)(1)(c) is limited to
providing a schedule for concluding the effluent guidelines
rulemaking--not necessarily promulgating effluent guidelines--within
three years, and is considering whether to appeal this decision.
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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, resulting in
regulations for 56 industrial categories. 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 sections 301(d) and 304(b)
simultaneously.
2. EPA's Review and Planning Obligations Under Sections 304(g) and
307(b)--Indirect Dischargers
Section 307(b) requires EPA to revise its pretreatment standards
for indirect dischargers (``from time to time, as control technology,
processes, operating methods, or other alternatives change.'' See CWA
section 307(b)(2). Section 304(g) requires EPA to annually review these
pretreatment standards and revise them ``if appropriate.'' Although
section 307(b) only requires EPA to review existing pretreatment
standards ``from time to time,'' section 304(g) requires an annual
review. Therefore, EPA meets its 304(g) and 307(b) review requirements
by reviewing all industrial categories subject to existing categorical
pretreatment standards on an annual basis to identify potential
candidates for revision.
Section 307(b)(1) also requires EPA to promulgate pretreatment
standards for pollutants not susceptible to treatment by POTWs or that
would interfere with the operation of POTWs, although it does not
provide a timing requirement for the promulgation of such new
pretreatment standards. EPA, in its discretion, periodically evaluates
indirect dischargers not subject to categorical pretreatment standards
to identify potential candidates for new pretreatment standards. The
CWA does not require EPA to publish its review of pretreatment
standards or identification of potential new categories, although EPA
is exercising its discretion to do so in this notice.
EPA intends to repeat this publication schedule for future
pretreatment standards reviews (e.g., EPA will publish the 2007 annual
pretreatment standards review in the notice
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containing the Agency's 2007 annual review of existing effluent
guidelines and the preliminary 2008 Plan). EPA intends that these
contemporaneous reviews will provide meaningful insight into EPA's
effluent guidelines and pretreatment standards program decision-making.
Additionally, by providing a single notice for these and future
reviews, EPA hopes to provide a consolidated source of information for
the Agency's current and future effluent guidelines and pretreatment
standards program reviews.
V. EPA's 2006 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), and
307(b)
A. What Process Did EPA Use To Review Existing Effluent Guidelines and
Pretreatment Standards Under CWA Section 301(d), 304(b), 304(g), and
307(b)?
1. Overview
In its 2006 annual review, EPA reviewed all industrial categories
subject to existing effluent limitations guidelines and pretreatment
standards, representing a total of 56 point source categories and over
450 subcategories. This review consisted of a screening level review of
all existing industrial categories based on the hazard associated with
discharges from each category and other factors identified by EPA as
appropriate for prioritizing effluent guidelines and pretreatment
standards for possible revision. For categories prioritized based on
the screening-level review, EPA conducted further review--a ``detailed
study'' of two categories (i.e., Steam Electric Power Generation and
Pulp, Paper, and Paperboard categories--and a less intensive
``prioritized category review'' of eleven categories--in order to
determine whether it would be appropriate to identify these categories
for effluent guidelines rulemaking. EPA also took a closer look at
several stakeholder identified categories to determine whether they
warranted additional review. Together, these reviews discharged EPA's
obligations to annually review both existing effluent limitations
guidelines for direct dischargers under CWA sections 301(d) and 304(b)
and existing pretreatment standards for indirect dischargers under CWA
sections 304(g) and 307(b).
Based on this review, and in light of the effluent guidelines
rulemakings and detailed studies currently in progress based on prior
annual reviews and other events, EPA is not identifying any existing
categories for effluent guidelines rulemaking at this time. EPA does,
however, intend to conduct more focused detailed reviews in the 2007
and 2008 annual reviews of the effluent guidelines for the following
categories: Steam Electric Power Generating (Part 423), Coal Mining
(Part 434), Oil and Gas Extraction category (Part 435) (only to assess
whether to revise the limits to include Coal Bed Methane extraction as
a new subcategory), and Hospitals (Part 460).\2\ As part of its
detailed study of the Coal Bed Methane extraction industry, EPA plans
to seek approval for an Information Collection Request (ICR) to gather
data from the industry. See Sections V.B.2 and VII.D.
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\2\ Based on available information, hospitals consist mostly of
indirect dischargers for which EPA has not established pretreatment
standards. As discussed in Section VII.D, EPA is including hospitals
in its review of the Health Services Industry, a potential new
category for pretreatment standards. As part of that process, EPA
will review the existing effluent guidelines for the few direct
dischargers in the category.
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2. How did EPA's 2005 annual review influence its 2006 annual review of
point source categories with existing effluent guidelines and
pretreatment standards?
In view of the annual nature of its reviews of existing effluent
guidelines and pretreatment standards, EPA believes that each annual
review can and should influence succeeding annual reviews, e.g., by
indicating data gaps, identifying new pollutants or pollution reduction
technologies, or otherwise highlighting industrial categories for
additional scrutiny in subsequent years. During its 2005 annual review,
which concluded in September 2005, EPA started detailed studies of the
existing effluent guidelines and pretreatment standards for two
industrial categories: Pulp, Paper, and Paperboard (Part 430) and Steam
Electric Power Generating (Part 423). In addition, EPA identified
eleven other priority industrial categories as candidates for further
study in the 2006 reviews based on the toxic discharges reported to the
Toxics Release Inventory (TRI) and Permit Compliance System (PCS). EPA
published the findings from its 2005 annual review with its preliminary
2006 Plan (August 29, 2005; 70 FR 51042), making the data collected
available for public comment. Docket No. EPA-HQ-OW-2004-0032. EPA used
the findings, data and comments on the 2005 annual review to inform its
2006 annual review. The 2006 review also built on the previous reviews
by continuing to use the screening methodology, incorporating some
refinements to assigning discharges to categories and updating toxic
weighting factors used to estimate potential hazards of toxic pollutant
discharges. In its 2006 reviews, EPA completed its detailed study of
the Pulp and Paper industry. EPA intends to continue its detailed study
of the Steam Electric industry in its 2007 annual review.
3. What actions did EPA take in performing its 2006 annual reviews of
existing effluent guidelines and pretreatment standards?
a. Screening-Level Review
The first component of EPA's 2006 annual review consisted of a
screening-level review of all industrial categories subject to existing
effluent guidelines or pretreatment standards. As a starting point for
this review, EPA examined screening-level data from its 2005 annual
reviews. In its 2005 annual reviews, EPA focused its efforts on
collecting and analyzing data to identify industrial categories whose
pollutant discharges potentially pose the greatest hazard to human
health or the environment because of their 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 TRI and PCS.
EPA calculated the TWPE using pollutant-specific toxic weighting
factors (TWFs). Where data are available, these TWFs reflect both
aquatic life and human health effects. For each facility that reports
to TRI or PCS, EPA multiplies the pounds of discharged pollutants by
pollutant-specific TWFs. This calculation results in an estimate of the
discharged toxic-weighted pound equivalents, which EPA then uses to
assess the hazard posed by these toxic and non-conventional pollutant
discharges to human health or the environment. EPA repeated this
process for the 2006 annual reviews using the most recent TRI data
(2003). EPA also examined the potential usability of PCS data (2002)
for evaluating nutrient discharges and discovered several complications
in calculating the pollutant load attributed to nutrients. EPA intends
to pursue means for improving the data review for nutrients discharges
in future effluent guidelines reviews. The full description of EPA's
methodology for the 2006 screening-level review is presented in the
final Technical Support Document (TSD) for the 2006 Plan (see DCN 3402)
and in the Docket (see EPA-HQ-OW-2004-0032) accompanying this notice.
[[Page 76649]]
EPA is continuously investigating and solicits comment on how to
improve its analyses. EPA made a few such improvements to the
screening-level review methodology from the 2005 to the 2006 annual
review. As part of the 2006 screening level review, EPA corrected the
PCSLoads2002 and TRIReleases2002 databases, by addressing issues raised
in comments (e.g., updating TWFs and average POTW pollutant removal
efficiencies for a number of pollutants) and collecting additional
information from individual facilities that report to TRI or PCS. EPA
also started a process for conducting a peer review of its development
and use of TWFs (see DCN 03333).
EPA also continued to use the quality assurance project plan (QAPP)
developed for the 2005 annual review 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 EPA-
HQ-OW-2004-0032-0050). 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 2003
discharge data reported to TRI and the 2002 discharges of nutrients
reported to PCS) 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,
corrected TRI and PCS data for facilities that EPA had identified in
its screening-level review as the significant dischargers of nutrients
and of toxic and non-conventional pollution.
Based on this methodology, EPA prioritized for potential revision
industrial categories that offered the greatest potential for reducing
hazard to human health and the environment. EPA assigned those
categories with the lowest estimates of toxic-weighted pollutant
discharges a lower priority for revision (i.e., industrial categories
marked ``3'' in the ``Findings'' column in Table V-1).
In order to further focus its inquiry during the 2006 annual
review, EPA did not prioritize for potential revision categories for
which effluent guidelines had been recently promulgated or revised, or
for which effluent guidelines rulemaking was currently underway (i.e.,
industrial categories marked ``1'' in the ``Findings'' column in Table
V-1). For example, EPA excluded facilities that are associated with the
Chlorine and Chlorinated Hydrocarbon (CCH) Manufacturing effluent
guidelines rulemaking (formerly known as the ``Vinyl Chloride and
Chlor-Alkali Manufacturing'' effluent guidelines rulemaking) currently
underway, subtracting the pollutant discharges from these facilities in
its 2006 hazard assessment of the Organic Chemicals, Plastics, and
Synthetic Fibers (OCPSF) and Inorganic Chemicals point source
categories to which CCH facilities belong.
Additionally, EPA applied less scrutiny to industrial categories
for which EPA had promulgated effluent guidelines or pretreatment
standards within the past seven years. EPA chose seven years because
this is the time it customarily takes for the effects of effluent
guidelines or pretreatment standards to be fully reflected in pollutant
loading data and TRI reports (in large part because effluent
limitations guidelines are often incorporated into NPDES permits only
upon re-issuance, which could be up to five years after the effluent
guidelines or pretreatment standards are promulgated). Because there
are 56 point source categories (including over 450 subcategories) with
existing effluent guidelines and pretreatment standards that must be
reviewed annually, EPA believes it is important to prioritize its
review so as to focus on industries where changes to the existing
effluent guidelines or pretreatment standards are most likely to be
needed. In general, industries for which new or revised effluent
guidelines or pretreatment standards have recently been promulgated are
less likely to warrant such changes. However, in cases where EPA
becomes aware of the growth of a new industrial activity within a
category for which EPA has recently revised effluent guidelines or
pretreatment standards, or where new concerns are identified for
previously unevaluated pollutants discharged by facilities within the
industrial category, EPA would apply more scrutiny to the category in a
subsequent review. EPA identified no such instance during the 2006
annual review.
EPA also did not prioritize for potential revision at this time
categories for which EPA lacked sufficient data to determine whether
revision would be appropriate. For industrial categories marked ``5''
in Table V-1, EPA lacks sufficient information on the magnitude of the
toxic-weighted pollutant discharges associated with these categories.
EPA will seek additional information on the discharges from these
categories in the next annual review in order to determine whether a
detailed study is warranted. EPA typically performs a further
assessment of the pollutant discharges before starting a detailed study
of an industrial category. This assessment provides an additional level
of quality assurance on the reported pollutant discharges and number of
facilities that represent the majority of toxic-weighted pollutant
discharges. EPA may also develop a preliminary list of potential
wastewater pollutant control technologies before conducting a detailed
study. See the appropriate section in the TSD for the 2006 Plan (DCN
3402) for EPA's data needs for these industrial categories. For
industrial categories marked ``4'' in Table V-1, EPA has sufficient
information on the toxic-weighted pollutant discharges associated with
these categories to start a detailed study of these industrial
categories in the 2007 annual review. EPA intends to use the detailed
study to obtain information on hazard, availability and cost of
technology options, and other factors in order to determine if it would
be appropriate to identify the category for possible effluent
guidelines revision. In the 2007 annual review, EPA will conduct
detailed studies of four such categories.
As part of its 2006 annual 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 in a category accounted for the vast
majority of toxic-weighted pollutant discharges (i.e., categories
marked ``(2)'' in the ``Findings'' column in Table V-1), EPA did not
prioritize the category for potential revision. EPA believes that
revision of individual permits for such facilities may be more
effective than a revised national effluent guideline at addressing the
hazard from the category because individual permit requirements can be
better tailored to these few facilities and may take considerably less
time to establish than a national effluent guideline. 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 3402). For these facilities, 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
[[Page 76650]]
order to evaluate the effectiveness of the BPJ permit-based support.
EPA received comments urging the Agency to encourage and recognize
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 to
human health or the environment associated with their effluent
discharges would be a comparatively lower priority for effluent
guidelines or pretreatment standards 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 indirectly account for the effects of
successful voluntary programs because any significant reductions in
pollutant discharges should 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.
EPA also received comment urging the Agency to consider the
availability and affordability of pollution-control technology in
prioritizing effluent guidelines for revision. As was the case in the
2004 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 toxic pollutant wastewater
discharges beyond the performance of technologies already in place for
all of the 56 existing industrial categories. However, EPA believes
that its analysis of hazard is useful for assessing the effectiveness
of existing technologies because it focuses on the amount and
significance of pollutants that are still discharged following existing
treatment. Therefore, by assessing the hazard associated with
discharges from all existing categories in its screening-level review,
EPA was indirectly able to assess the possibility that further
significant reductions could be achieved through new pollution control
technologies for these categories. In addition, EPA directly assessed
the availability of technologies for certain industries that were
prioritized for a more in-depth review as a result of the screening
level analysis. See DCN 3400, DCN 3401, and Sections 6-18 of the TSD
for the final 2006 Plan.
Similarly, EPA could not identify a suitable screening-level tool
for comprehensively evaluating the affordability of treatment or
process technologies because the universe of facilities is too broad
and complex. EPA could not find a reasonable way to prioritize the
industrial categories based on readily available economic data. In the
past, EPA has gathered information regarding technologies and economic
achievability through detailed questionnaires distributed to hundreds
of facilities within a category or subcategory for which EPA has
commenced rulemaking. Such information-gathering is subject to the
requirements of the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, et
seq. The information acquired in this way is valuable to EPA in its
rulemaking efforts, but the process of gathering, validating and
analyzing the data can consume considerable time and resources. EPA
does not think it appropriate to conduct this level of analysis for all
point source categories in conducting an annual review. Rather, EPA
believes it is appropriate to set priorities based on hazard and other
screening-level factors identified above, and to directly consider the
availability and affordability of technology only in conducting the
more in-depth reviews of prioritized categories. For these prioritized
categories, EPA may conduct surveys or other PRA data collection
activities in order to better inform the decision on whether effluent
guidelines are warranted. Additionally, EPA is working to develop tools
for directly assessing technological and economic achievability as part
of the screening-level review in future annual reviews under section
301(d), 304(b), and 307(b) (see DCN 2490). EPA solicits comment on how
to best identify and use screening-level tools for assessing
technological and economic achievability on an industry-specific basis
as part of future annual reviews.
In summary, through its screening level review, EPA focused on
those point source categories that appeared to offer the greatest
potential for reducing hazard to human health or the environment, while
assigning a lower priority to categories that the Agency believes are
not good candidates for effluent guidelines or pretreatment standards
revision at this time. This enabled EPA to concentrate its resources on
conducting more in-depth reviews of certain industries prioritized as a
result of the screening level analysis, as discussed below (see section
V.A.3.b and c). EPA also took a closer look at industries identified by
stakeholders as high-priority, as discussed below (see section
V.A.3.d).
b. Detailed Study of Two Categories
In addition to conducting a screening-level review of all existing
categories, EPA did a detailed study of two categories prioritized for
further review: The Pulp, Paper and Paperboard point source category
and the Steam Electric Generating point source category. For these
industries, EPA gathered and analyzed additional data on pollutant
discharges, economic factors, and technology issues during its 2006
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) The
2002 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) monitoring data
included in facility applications for NPDES permit renewals (Form 2C
data); (7) EPA effluent guidelines technical development documents; (8)
relevant EPA preliminary data summaries or study reports; (9) technical
literature on pollutant sources and control technologies; (10)
information provided by industry including industry conducted survey
and sampling data; and (11) stakeholder comments (see DCN 3403).
During its 2005 annual review, EPA started detailed studies for the
Pulp, Paper, and Paperboard point source category (Part 430) and the
Steam Electric Power Generating point source category (Part 423)
because they represent the two industrial point source categories with
the largest combined TWPE based on EPA's ranking approach. EPA
continued these detailed studies during its 2006 annual review. EPA had
planned to complete both of these detailed studies in its 2006 annual
review, prior to publication of the final 2006 Plan. However, EPA was
only able to complete the detailed study for the Pulp, Paper, and
Paperboard category. See section V.B.2.a. EPA is continuing its
detailed study of the Steam Electric Power Generating category during
the 2007 and 2008 annual reviews. See section V.B.2.b.
[[Page 76651]]
c. Further Review of Prioritized Categories
In addition to identifying two categories for detailed studies
during the 2005 review, EPA identified 11 additional categories with
potentially high TWPE discharge estimates. For a listing of these
categories and EPA's 2005 review of them, see Preliminary 2005 Review
of Prioritized Categories of Industrial Dischargers, EPA 821-B-05-004.
EPA continued its review of these categories during 2006, using the
same types of data sources used for the detailed studies but in less
depth. EPA did not conduct a detailed study for these categories at
this time because EPA needed additional information regarding these
industries to determine whether a detailed study would be warranted.
See the appropriate section in the TSD for the 2006 Plan (DCN 3402) for
EPA's data needs for these industrial categories. EPA typically
performs a further assessment of the pollutant discharges before
starting a detailed study of an industrial category. This assessment
provides an additional level of quality assurance on the reported
pollutant discharges and number of facilities that represent the
majority of toxic-weighted pollutant discharges. EPA may also develop a
preliminary list of potential wastewater pollutant control technologies
before conducting a detailed study.
d. Public Comments
EPA's annual review process considers information provided by
stakeholders regarding the need for new or revised effluent limitations
guidelines and pretreatment standards. To that end, EPA established a
docket for its 2005 annual review with the publication of the final
2004 Plan to provide the public with an opportunity to provide
additional information to assist the Agency in its 2005 annual review.
EPA's Regional Offices and stakeholders identified other industrial
point source categories as potential candidates for revision of
effluent limitations guidelines and pretreatment standards based on
potential opportunities to improve implementation of these regulations
or because of their pollutant discharges (see EPA-HQ-OW-2004-0032-
0020). Additionally, EPA solicited public comment on its preliminary
2006 Plan, as well as data and information to assist the Agency in its
2006 annual review. See August 29, 2005 (70 FR 51042). EPA received a
total of 61 public comments on its 2005 annual review and the
preliminary 2006 Plan. These public comments prompted EPA to review, in
particular, the following categories: Organic Chemicals, Pesticides and
Synthetic Fibers (Part 414), Coal Mining (Part 434); and Oil and Gas
Extraction (Part 435) (only to assess whether to include the Coal Bed
Methane extraction industry as a potential new category). See Section
V.B.4.
B. What Were EPA's Findings From Its 2006 Annual Review for Categories
Subject to Existing Effluent Guidelines and Pretreatment Standards?
1. Screening-Level Review
In its 2006 screening level review, EPA considered hazard--and the
other factors described in section A.3.a. above--in prioritizing
effluent guidelines for potential revision. See Table V-1 for a summary
of EPA's findings with respect to each existing category; see also the
Final 2006 TSD. Out of categories subject only to the screening level
review in 2006, EPA is not identifying any for effluent guidelines
rulemaking at this time, based on the factors described in section
A.3.a above and in light of the effluent guidelines rulemakings and
detailed studies in progress based on prior annual reviews and other
events.
2. Detailed Studies
As a result of its 2005 screening-level review, EPA started
detailed studies of two industrial point source categories with
existing effluent guidelines and pretreatment standards: Pulp, Paper,
and Paperboard (Part 430) and Steam Electric Power Generating (Part
423). During detailed study of these categories, EPA first investigated
whether the pollutant discharges reported to TRI and PCS for 2002
accurately reflect the current discharges of the industry. EPA also
performed an in-depth analysis of the reported pollutant discharges,
and technology innovation and process changes in these industrial
categories. Additionally, EPA considered whether there are industrial
activities not currently subject to effluent guidelines or pretreatment
standards that should be included with these existing categories,
either as part of existing subcategories or as potential new
subcategories. EPA used these detailed studies to determine whether EPA
should identify in the final 2006 Plan one or both of these industrial
categories for possible revision of their existing effluent guidelines
and pretreatment standards.
Based on the information available to EPA at this time, EPA was
able to complete its detailed study for the Pulp, Paper, and Paperboard
category, finding that revision of the effluent guidelines for this
category is not appropriate at this time for the reasons discussed
below. However, EPA was unable to complete its detailed study for the
Steam Electric Power Generating category. Consequently, EPA is
continuing its study of the Steam Electric Power Generating category in
its 2007 and 2008 annual reviews to determine whether to identify this
category for effluent guidelines revision. EPA's reviews of these two
categories are described below.
a. Pulp, Paper, and Paperboard (Part 430)
As a result of its 2005 screening-level review, EPA initiated a
detailed study of the Pulp, Paper, and Paperboard point source category
because it ranked highest in terms of toxic and non-conventional
pollutant discharges among the industrial point source categories
investigated in the screening-level analysis. Dioxins and dioxin-like
compounds accounted for 91% of the combined TRI and PCS TWPE for this
category in the 2005 screening-level analysis while polycyclic aromatic
compounds (PACs), metals, and nitrates, not currently regulated by
these effluent guidelines, accounted for an additional 7% of the
category's total TWPE.\3\ EPA issued a Preliminary Report: Pulp, Paper,
and Paperboard Detailed Study (August 2005, EPA-821-B-05-007) along
with the Preliminary 2006 Plan, describing its initial review of TRI
and PCS data, information provided by industry and by States, and NPDES
permits.
---------------------------------------------------------------------------
\3\ After additional analysis, including information provided in
comments on EPA's preliminary Detailed Study (see DCN 02177), EPA
determined that dioxins and dioxin-like compounds accounted for 81%
of the combined TRI and PCS TWPE for this category.
---------------------------------------------------------------------------
In the 2006 annual review, EPA obtained additional information and
permits from States and industry including corrections for the TRI and
PCS databases. All-in-all, EPA reviewed effluent discharge data for all
76 bleached papergrade kraft and sulfite mills, known collectively as
the ``Phase I'' mills. EPA also reviewed effluent discharges for non-
bleaching pulp mills, secondary (recycled) fiber mills, and paper and
paperboard mills in eight subcategories (Subparts C and F through L),
known collectively as the ``Phase II'' mills. EPA did not review in
detail the three remaining dissolved kraft and dissolved sulfite mills
(Subparts A and D), known as the ``Phase III'' mills. Because of the
limited and declining number of facilities in Phase III, EPA believes
that support to permit writers in establishing facility-specific
effluent
[[Page 76652]]
limits based on their Best Professional Judgment (BPJ) is more
appropriate than effluent guidelines rulemaking at this time. NPDES
permits for Phase III mills will continue to include effluent
limitations that reflect a determination of BAT based on BPJ or, if
necessary, more stringent limitations to ensure compliance with
applicable water quality standards.
The most recent changes to EPA's effluent limitations guidelines
and pretreatment standards for this point source category, known as
part of the ``Cluster Rules,'' were new limits for Phase I facilities
in the Bleached Papergrade Kraft and Soda (Subpart B) and Papergrade
Sulfite (Subpart E) subcategories (April 15, 1998; 63 FR 18504). EPA
promulgated limits for dioxin, furan, chloroform, chlorinated phenolic
compounds, and adsorbable organic halides (AOX). EPA provided reduced
monitoring requirements for bleached papergrade kraft mills that employ
totally chlorine free (TCF) bleaching and for certain segments of the
Papergrade Sulfite subcategory. As part of the detailed study, EPA
reviewed the implementation status of the Cluster Rules. Seven permits
do not yet include Cluster Rule limits because the revised permits are
either being contested or have not been reissued. Two permits allow for
demonstration of compliance with the AOX limit at alternate monitoring
locations (see DCN 3400).
EPA studied in detail how releases of dioxin and dioxin-like
compounds are reported to PCS and TRI. Mills file Discharge Monitoring
Reports (DMRs) with their permitting authority, usually the state, once
a month or at other specified frequencies, as required by their
permits. Each mill's NPDES permit specifies the pollutants to monitor
and at what frequency. States enter mill-provided DMR data, both for
bleach plant effluent monitoring and final effluent monitoring, into
EPA's national PCS database. TRI requires that facilities report
releases if they manufacture, process, or otherwise use more than 0.1
grams/year of dioxin and dioxin-like compounds. Mills report the mass
discharged to surface waters (for facilities discharging directly to a
receiving stream) or transferred to a POTW (for indirect dischargers).
They are not, however, required to report releases less than 0.0001
gram/year (100 micrograms/year). Unlike NPDES permit compliance
monitoring, TRI does not require facilities to measure waste stream
pollutant concentrations. Instead, facilities may use emission factors,
mass balances, or other engineering calculations to estimate releases.
Facilities may estimate their releases using monitoring data collected
prior to the year for which they are reporting discharges if they
believe the data are representative of reporting year operations.
Additionally, mills are only required to report to TRI the total mass
of the 17 dioxin and dioxin-like compounds released to surface waters
or POTWs but not the distribution of the 17 compounds, although they
have different toxicities.
Only 15 mills report releases based on measured concentrations in
their wastewater. EPA obtained mill-specific measured concentrations of
the 17 dioxin and dioxin-like compounds from six out of the 15 mills
that based their estimated 2002 discharges on measurements. For these
six mills, all but 636 of the 226,444 TWPE for dioxin and dioxin-like
compounds that they reported to TRI are based on measurements below the
Method 1613B minimum level (ML). A method minimum level is the level or
concentration at which the analytical system gives recognizable signals
and an acceptable calibration point. The accuracy of concentrations
measured below the Method 1613B ML is less certain than concentrations
measured at or above the method ML. Traditionally in effluent
guidelines rulemakings EPA establishes numerical effluent limits at or
above the ML of the analytical method because individual measurements
below the ML are not considered reliable enough for regulatory
purposes.
NPDES permits require mills to monitor pollutants discharged and
report the results to their state on a monthly basis or at other
specified frequencies. The States, in turn, submit these data to PCS.
Reporting of monitoring results measured at or below the method ML
varies widely. These results may be reported as ``0,'' ``non-detect,''
``less than ML,'' or a numeric value. The Cluster Rules require Phase I
mills to monitor for the most toxic dioxin forms: 2,3,7,8-
tetrachlorodibenzo-p-dioxin (TCDD) and 2,3,7,8-tetrachlorodibenzofuran
(TCDF) in their bleach plant effluent. Some permit writers also require
monitoring of TCDD in mill final effluent. In 2002, only one mill
reported detecting TCDD in its final effluent. Since 2002, this mill
has changed its operations and has not reported dioxin releases (see
EPA-HQ-OW-2004-0032-0021). TCDD was not detected in bleach plant
effluent above the Method 1613B ML at any of the 51 mills for which EPA
has data for the period 2002 to 2004. TCDF was detected above the
Method 1613B ML in bleach plant effluent at four bleached papergrade
kraft mills and one papergrade sulfite mill. For the bleached
papergrade kraft and soda (Subpart B) mills, all reported effluent
discharge concentrations of TCDF were below the Daily Maximum BAT
effluent guideline of 31.9 picograms/liter. For the papergrade sulfite
(Subpart E) mills, the Daily Maximum BAT effluent guideline is
expressed as ``5) load. For this reason, mills typically add
nitrogen and phosphorus to their treatment systems. Minimizing the
discharge of total nitrogen and total phosphorus from pulp and paper
mill wastewater treatment systems requires optimized nutrient
supplementation and effective removal of suspended solids. EPA has not
determined if these strategies are feasible for all mills. EPA found
that end-of-pipe treatment technologies for nutrients removal have not
been well demonstrated on mill wastewaters. For these reasons, EPA does
not believe it is appropriate to identify this point source category
for effluent guidelines rulemaking to address nutrients at this time.
For the reasons discussed above, EPA is not identifying the Pulp,
Paper, and Paperboard point source category (Part 430) as a candidate
for effluent guidelines revisions at this time. As with all categories
subject to existing effluent guidelines, EPA will continue to examine
this industrial category in future annual reviews to determine if
revision of existing effluent guidelines may be appropriate.
b. Steam Electric Power Generating (Part 423)
EPA began a detailed study of the Steam Electric Power Generating
point source category in the 2005 review because it ranked second-
highest in terms of toxic and non-conventional toxic weighted pollutant
discharges among the industrial point source categories investigated in
the screening level analyses. EPA's screening-level analysis during the
2005 annual review was based primarily on information reported to TRI,
PCS, and the U.S. Department of Energy's Energy Information
Administration (EIA) for the year 2002. For the screening-level review,
EPA also obtained and reviewed additional information to supplement
that data, including industry-compiled data on the likely source and
magnitude of the reported toxic dischargers.
The effluent limitations guidelines and standards for the Steam
Electric Power Generating point source category apply to a subset of
all entities comprising the electric power industry. Specifically,
facilities regulated by the effluent guidelines are ``primarily engaged
in the generation of electricity for distribution and sale which
results primarily from a process utilizing fossil-type fuel (coal, oil,
or gas) or nuclear fuel in conjunction with a thermal cycle employing
the steam water system as the thermodynamic medium.'' See 40 CFR
423.10. Steam electric power generating facilities are primarily
classified within SIC codes 4911, 4931 and 4939.
Effluent guidelines for direct dischargers were first promulgated
for
[[Page 76654]]
this category in 1974 (39 FR 36186). In 1977, EPA promulgated
pretreatment standards for facilities that discharge indirectly to
POTWs (42 FR 15690). EPA's most recent revisions to the effluent
guidelines and standards for this category were promulgated in 1982 (47
FR 52290).
EPA's detailed study of the Steam Electric Power Generating point
source category has generally focused on investigating the sources of
the large toxic weighted pollutant discharges and the potential for
pollution control technologies and practices to reduce these
discharges. EPA intends to use this information to determine whether
effluent limitations for parameters currently regulated by the effluent
guidelines need to be revised, or whether effluent limitations for
other parameters should be added to the effluent guidelines.
One key objective of the detailed study is to better quantify the
pollutant concentrations and mass released in wastewater discharges
from steam electric facilities, and to identify the sources of the
pollutants contributing significantly to the toxic weighted loadings.
Wastestreams of interest include cooling water, ash-handling wastes,
coal pile runoff, wet air pollution control device wastes, water
treatment wastes, boiler blowdown, maintenance cleaning wastes, and
other miscellaneous wastes. In particular, EPA seeks to determine
typical wastewater volumes and pollutant concentrations for the
individual process streams using readily available data. EPA also seeks
to collect information on any new technologies or process changes for
flow or pollutant reductions. EPA's efforts to obtain these data in the
2005 annual review included soliciting information in the Federal
Register notice for the preliminary 2006 Plan (see 70 FR 51058),
discussions with the key industry trade association (e.g., Utility
Water Act Group), reviewing selected NPDES permits and fact sheets, and
conducting in-depth analyses of PCS data.
Boron, aluminum and arsenic (three of the top five pollutants
driving pollutant loadings) were not identified in previous effluent
guidelines rulemakings as pollutants of concern. Further, previous
effluent guidelines rulemakings specifically noted there was no
correlation between total suspended solids, a pollutant parameter
regulated by the effluent guidelines, and the effluent concentrations
of these three pollutants. EPA notes that these three pollutants are
mobile and there is some concern that they may be released from
impoundment sludges/sediments to the liquid fraction and discharged
directly to surface waters. EPA's Office of Research and Development
(ORD) and the Office of Solid Waste (OSWER/OSW) are currently
investigating the mobility of selenium, arsenic and mercury with
respect to potential releases from landfills and liquid impoundments
(see DCN 3401). Additionally, due to air emissions requirements under
the Clean Air Interstate Rule and Clean Air Mercury Rule, increasing
amounts of metals and nutrients are expected to be added to the process
wastewaters. Based on the potential for cross-media transfer and
uncertainties and data gaps regarding the pollutant discharges from
this category, EPA is continuing its detailed study of this category to
better understand the ultimate fate of these pollutant transfers to
determine whether they are adequately controlled by existing water
pollution control practices.
The current evaluation allowed EPA to identify targeted areas of
concern for which EPA needs to collect additional data. The focus of
further study will be narrower than the evaluation conducted for the
2006 annual review, and is expected to concentrate primarily on better
characterizing pollutant sources and available pollution control
technologies/practices for the pollutants responsible for the majority
of the toxic weighted pollutant loadings from steam electric
facilities. One aspect of this study will assess the significance of
air-to-water cross media pollutant transfers (e.g., mercury and other
metals, and nutrients) associated with air pollution controls. In
conducting this additional study, EPA's Office of Water will coordinate
its efforts with ongoing research and other activities being undertaken
by other EPA offices, including ORD, OSWER/OSW, and the Office of Air
Quality Planning and Standards (OAQPS) and Office of Atmospheric
Programs (OAP) in the Office of Air and Radiation. The detailed study
continuing in the 2007 and 2008 annual reviews will likely require new
data generation such as wastewater sampling and/or an industry survey.
EPA also investigated certain activities not currently regulated by
the steam electric effluent guidelines. Since 1982, there has been an
increase in the amount of electricity supplied to the grid from
facilities that use alternative fuel sources or which do not utilize
the steam-water thermodynamic cycle to produce electricity. To address
this, EPA evaluated processes and wastewater discharge characteristics
for electric power generating facilities that use prime movers
(engines) other than steam turbines (e.g., gas turbines); and steam
electric power generating facilities using alternative fuel sources
(i.e., non-fossil and non-nuclear fuels such as municipal waste, wood
and agricultural wastes, landfill gas, etc.). EPA also reviewed
available information for steam supply (i.e., non-electric generating)
and certain other utility activities; and steam electric units co-
located at manufacturing plants or other commercial facilities (also
referred to as ``industrial non-utilities''). Based on the information
in the record, EPA found that revising the applicability of Part 423 to
include these facilities is not warranted at this time (see DCN 3401).
In general, EPA could not accurately quantify the pollutant discharges
from industrial operations that are not regulated by Part 423. For
example, EPA had limited DMR data and process flow diagrams from these
facilities to accurately quantify the pollutant discharges from
industrial operations that are not regulated by Part 423. EPA intends
to continue reviewing these operations in the 2007 and 2008 annual
reviews to better characterize their wastewater pollutant discharges.
3. Results of Further Review of Prioritized Categories
During the 2005 annual review, EPA identified 11 categories with
potentially high TWPE discharge estimates (i.e., industrial point
source categories with existing effluent guidelines identified with
``(5)'' in the column entitled ``Findings'' in Table V-1, Page 51050 of
the preliminary 2006 Plan). During the 2006 annual review EPA continued
to collect and analyze hazard and technology-based information on these
eleven industrial categories. EPA is not identifying any of these
categories for an effluent guidelines rulemaking in this final 2006
Plan. The docket accompanying this notice presents a summary of EPA's
findings on these eleven industrial categories (see DCN 3402), which
are also summarized below.
EPA found that the following seven of these eleven industrial
categories did not constitute a priority for effluent guidelines
revision based on the hazard associated with their discharges (based on
data available at this time): Fertilizer Manufacturing, Inorganic
Chemicals, Nonferrous Metals Manufacturing, Organic Chemicals,
Plastics, and Synthetic Fibers (OCPSF), Petroleum Refining, Porcelain
Enameling, and Rubber Manufacturing. EPA will continue to annually
review these categories to assess whether revision of effluent
guidelines for these categories
[[Page 76655]]
may be appropriate in light of any new data and Agency priorities at
the time. Additionally, as requested, EPA will provide assistance to
permitting authorities in better tailoring permit requirements for
these categories. For an additional two of the eleven categories
(Pesticide Chemicals, Plastic Molding and Forming) and Phase III
facilities in the Pulp, Paper, and Paperboard category, EPA determined
that national effluent guidelines (including categorical pretreatment
standards) are not the best tools for establishing technology-based
effluent limitations because most of the toxic and non-conventional
pollutant discharges are from one or a few facilities in their
respective industrial category. For facilities in these two categories
and Phase III of the Pulp, Paper, and Paperboard category, EPA will
provide assistance to permitting authorities, as requested, 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. EPA lacks
sufficient information on the magnitude of the toxic-weighted pollutant
discharges associated with the remaining two categories. EPA will seek
additional information on the discharges from the Ore Mining and
Dressing and Textile Mills categories in the next annual review in
order to determine whether a detailed study is warranted. EPA typically
performs a further assessment of the pollutant discharges before
starting a detailed study of an industrial category. This assessment
provides an additional level of quality assurance on the reported
pollutant discharges and number of facilities that represent the
majority of toxic-weighted pollutant discharges. EPA may also develop a
preliminary list of potential wastewater pollutant control technologies
before conducting a detailed study. See the appropriate section in the
TSD for the 2006 Plan (DCN 3402) for EPA's data needs for these
industrial categories.
4. Other Category Reviews Prompted by Stakeholder Outreach
Following the publication of the findings of the 2004 and 2005
annual reviews in the final 2004 Plan and the preliminary 2006 Plan,
EPA's Regional Offices and stakeholders identified the following three
industrial point source categories as potential candidates for effluent
guideline revision based on potential opportunities to improve
efficient implementation of the national water quality program or
because of the categories' pollutant discharges (see DCN 3403).
a. Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF) Effluent
Guidelines (Part 414)
As described in the notice containing the preliminary 2006 Plan,
EPA began an evaluation of options for promoting water conservation
through the use of mass-based limits as part of its 2006 annual review
of existing effluent guidelines. EPA strongly supports water
conservation and encourages all sectors, including municipal,
industrial, and agricultural, to achieve efficient water use. EPA does
not intend for its regulations to present a barrier to efficient water
use in any industrial sector.
In the preliminary 2006 Plan, EPA requested comment on whether it
should consider a rulemaking or other ways to allow permitting
authorities to retain mass-based limits for direct dischargers based on
current wastewater flows when such flows are lowered due to water
conservation, in order to facilitate the prospective adoption of water
conservation technologies. EPA received comments from industry, POTWs,
and a public interest group. Industry and POTWs support revising the
regulations to allow the retention of current mass-based limits and
expressed concern that lowering the mass-based permit limits to reflect
the lower flows associated with water conservation will result in
permit violations and thus discourage water conservation. The public
interest group objected to retaining current mass-based limits when
flows are lowered because of the potential for acute toxicity effects
on aquatic life in receiving streams that could result from increased
pollutant concentrations.
Only one facility provided the data requested by EPA in the
preliminary 2006 Plan to evaluate the potential need for such a
rulemaking. EPA was not able to draw any conclusion from this data as
this facility concurrently upgraded its wastewater treatment with
advanced treatment technology (ultrafiltration technology) and
implemented water conservation practices to reduce wastewater flow
rates to the ultrafiltration technology equipment (see DCNs 3667, 3701,
4103). Consequently, EPA was not able to separate out the effect of
water conservation practices alone on the facility's pollutant
discharges. However, the facility's discharge data after the upgrade in
wastewater treatment and implementation of water conservation practices
do show lower pollutant mass discharges, more efficient and consistent
pollutant removals, and compliance with its NPDES permit limits (see
DCN 3701). No other such data were provided to the Agency for its
review.
EPA's record supports the finding that for a variety of industrial
sectors, well-operated and designed treatment systems treat wastewater
with varying influent pollutant concentrations to the same effluent
concentrations across a wide range of flows (see DCN 3702). This is due
to the fact that wastewater treatment technologies operating within
their design specifications are often limited solely by physical/
chemical properties of the pollutants in the wastewater, and not
necessarily by influent concentrations. Increasing influent pollutant
concentrations to a properly designed and operated wastewater treatment
system generally leads to increased wastewater treatment efficiency.
Additionally, EPA's record supports the fact that water conservation
resulting from pollution prevention practices such as changing from wet
to dry manufacturing operations can prevent the generation of
wastewater pollution and its introduction to wastewater treatment
equipment. Moreover, EPA's record documents that the main drivers of
water conservation are the economic considerations that result from
high operating costs (e.g., water bills, pumping costs, wastewater
sludge generation and disposal costs); and water source restrictions
(e.g., widespread regional droughts, increasing water demands of urban
populations). See DCN 3702. These findings are similar to the
discussion in the preamble to the 1987 OCPSF final rule where EPA
stated that concentration-based effluent guidelines do not discourage
water conservation. In the OCPSF final rule EPA noted that ``water
conservation is often practiced for a variety of sound reasons of
efficiency and economy, and that wastewater treatment costs themselves
may be substantially reduced by reducing the flow which must be
treated. The resulting cost savings may outweigh any increased cost
that arguably results from being required to treat the more
concentrated stream to meet an effluent concentration limitation.'' See
November 5, 1987 (52 FR 42555).
After a careful review of public comments and available data, EPA
does not agree with public commenters that the OCPSF effluent
guidelines inhibit water conservation. Consequently, EPA does not
believe that revisions to the mass-based limits guidance for the
[[Page 76656]]
OCPSF effluent guidelines are warranted at this time.
b. Other Stakeholder Identified Industries
With the publication of the final 2004 Plan and the preliminary
2006 Plan, EPA solicited public comment to inform its 2006 annual
review of existing effluent guidelines and pretreatment standards.
Stakeholders commented that EPA should revise the existing effluent
limitations guidelines for the Coal Mining (Part 434) and Oil and Gas
Extraction (Part 435) point source categories. Based on these comments,
EPA conducted an initial screening level review of these two
categories, and found that more information is needed in order to
determine whether to identify these categories for effluent guidelines
rulemaking, for the reasons discussed below.
i. Coal Mining Point Source Category (Part 434)
EPA received public comment from States, industry, and a public
interest group that urged EPA to consider revisiting the manganese
limitations in the Coal Mining effluent guidelines (40 CFR Part 434).
The State and industry commenters requested that EPA study whether
additional flexibility is warranted for these manganese limitations.
The public interest group commented that EPA should start a rulemaking
and promulgate more stringent limitations for manganese, other metals,
and other dissolved inorganic pollutants (e.g., chlorides, sulfates,
TDS).
State and industry commentors cited the following factors in
support of their comments: (1) New, more stringent coal mining
reclamation bonding requirements on post-closure discharges; (2) low
relative toxicity of manganese to aquatic communities as compared to
other toxic metals in the coal mining discharges; and (3) treatment
with chemical addition may complicate permit compliance, especially
after a mine is closed. The public interest group referenced a study by
EPA Region 5 on potential adverse impacts of the discharge of sulfates
on aquatic life (see DCN 2487).
At this time, EPA does not have sufficient information to evaluate
the merits of the factors cited by commenters. However, because of the
potential for encouraging proper wastewater treatment, EPA will conduct
a detailed study of the coal mining effluent guidelines in the 2007 and
2008 annual reviews. EPA will focus on issues related to manganese
limits and pollutants not currently regulated by these regulations. EPA
will re-evaluate these effluent guidelines taking into account, among
other things, treatment technologies, toxicity of discharges, cost
impacts to the industry, and bonding requirements. EPA has placed in
the docket and solicits comment on a draft scope of work for this
detailed study (see DCN 2488).
ii. Oil and Gas Extraction Point Source Category (Part 435)
EPA received comments from public interest groups urging EPA to
promulgate effluent guidelines for the coalbed methane (CBM) extraction
industry. Because the product extracted by the CBM industry--coal bed
natural gas--is virtually identical to the conventional natural gas
extracted by facilities subject to the effluent guidelines for Oil and
Gas Extraction (40 CFR 435),\4\ EPA found that the CBM extraction
industry was reasonably considered a potential new subcategory of the
Oil and Gas Extraction category. EPA therefore reviewed the Oil and Gas
Extraction category to determine whether it may be appropriate to
revise its applicability to include limits for CBM extraction.
---------------------------------------------------------------------------
\4\ Reflecting this similarity of product, both CBM extraction
operations and conventional Oil and Gas extraction operations share
the same SIC code. CBM operations simply constitute another process
for extracting natural gas, and are therefore reasonably considered
part of the Oil and Gas Extraction category. See DCN 3402, section
6.
---------------------------------------------------------------------------
In conducting this review, EPA found that it will need to gather
more specific information as part of a detailed review of the coalbed
methane industry in order to determine whether it would be appropriate
to conduct a rulemaking to potentially revise the effluent guidelines
for the Oil and Gas Extraction category to include limits for CBM. In
particular, EPA needs more detailed information on the characteristics
of produced water, as well as the technology options available to
address such discharges. To aid in a better industrial profile of the
CBM sector, EPA intends to submit an Information Collection Request
(ICR) to the Office of Management and Budget (OMB) for their review and
approval under the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, et
seq., in the 2007 annual review. EPA will use this ICR to collect
technical and economic information from a wide range of CBM operations
(e.g., geographical differences in the characteristics of CBM produced
waters, current regulatory controls, availability and affordability of
treatment technology options). In designing this industry survey EPA
expects to work closely with CBM industry representatives and other
affected stakeholders. EPA solicits comment on the potential scope of
this ICR. EPA may also supplement the survey data collection with CBM
site visits and produced water sampling.
5. Summary of 2006 Annual Review Findings
In its 2006 annual review, EPA reviewed all categories subject to
existing effluent guidelines and pretreatment standards in order to
identify appropriate candidates for revision. Based on this review, and
in light of effluent guidelines rulemakings and detailed studies
currently in progress based on previous annual reviews, EPA is not
identifying any existing categories for effluent guidelines rulemaking.
EPA is, however, identifying four existing categories (Steam Electric
Power Generating, Coal Mining, Oil and Gas Extraction, and Hospitals)
for detailed studies in its 2007 and 2008 annual reviews.
A summary of the findings of the 2006 annual review are presented
in Table V-1. This table uses the following codes to describe the
Agency's findings with respect to each existing industrial category.
(1) Effluent guidelines or pretreatment standards for this
industrial category were recently revised or reviewed through an
effluent guidelines rulemaking or a rulemaking is currently underway.
(2) National effluent guidelines or pretreatment standards are not
the best tools 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 priority based on data available at
this time.
(4) EPA intends to start or continue a detailed study of this
industry in its 2007 and 2008 annual reviews to determine whether to
identify the category for effluent guidelines rulemaking.
(5) Incomplete data available to determine whether to conduct a
detailed study or identify for possible revision. EPA typically
performs a further assessment of the pollutant discharges before
starting a detailed study of the industrial category. This assessment
provides an additional level of quality assurance on the reported
pollutant
[[Page 76657]]
discharges and number of facilities that represent the majority of
toxic-weighted pollutant discharges. EPA may also develop a preliminary
list of potential wastewater pollutant control technologies before
conducting a detailed study. See the appropriate section in the TSD for
the 2006 Plan (DCN 3402) for EPA's data needs for this industrial
category. EPA will conduct a prioritized category review in the next
annual review in order to fill these data gaps.
Table V-1.--Findings From the 2006 Annual Review of Effluent Guidelines
and Pretreatment Standards Promulgated Under Section 301(d), 304(b),
304(g), and 307(b)
------------------------------------------------------------------------
Industry category (listed 40 CFR
No. alphabetically) part Findings \*\
------------------------------------------------------------------------
1 Aluminum Forming................... 467 (3)
2 Asbestos Manufacturing............. 427 (3)
3 Battery Manufacturing.............. 461 (3)
4 Canned and Preserved Fruits and 407 (3)
Vegetable Processing..............
5 Canned and Preserved Seafood 408 (3)
Processing........................
6 Carbon Black Manufacturing......... 458 (3)
7 Cement Manufacturing............... 411 (3)
8 Centralized Waste Treatment........ 437 (1)
9 Coal Mining........................ 434 (1) and (4)
10 Coil Coating....................... 465 (3)
11 Concentrated Animal Feeding 412 (1)
Operations (CAFO).................
12 Concentrated Aquatic Animal 451 (1)
Production........................
13 Copper Forming..................... 468 (3)
14 Dairy Products Processing.......... 405 (3)
15 Electrical and Electronic 469 (3)
Components........................
16 Electroplating..................... 413 (1)
17 Explosives Manufacturing........... 457 (3)
18 Ferroalloy Manufacturing........... 424 (3)
19 Fertilizer Manufacturing........... 418 (3)
20 Glass Manufacturing................ 426 (3)
21 Grain Mills........................ 406 (3)
22 Gum and Wood Chemicals............. 454 (3)
23 Hospitals \5\...................... 460 (4)
24 Ink Formulating.................... 447 (3)
25 Inorganic Chemicals................ 415 (1) and (3)
26 Iron and Steel Manufacturing....... 420 (1)
27 Landfills.......................... 445 (1)
28 Leather Tanning and Finishing...... 425 (3)
29 Meat and Poultry Products.......... 432 (1)
30 Metal Finishing.................... 433 (1)
31 Metal Molding and Casting.......... 464 (3)
32 Metal Products and Machinery....... 438 (1)
33 Mineral Mining and Processing...... 436 (3)
34 Nonferrous Metals Forming and Metal 471 (3)
Powders...........................
35 Nonferrous Metals Manufacturing.... 421 (3)
36 Oil and Gas Extraction............. 435 (1) and (4)
37 Ore Mining and Dressing............ 440 (5)
38 Organic Chemicals, Plastics, and 414 (1) and (3)
Synthetic Fibers..................
39 Paint Formulating.................. 446 (3)
40 Paving and Roofing Materials (Tars 443 (3)
and Asphalt)......................
41 Pesticide Chemicals................ 455 (2)
42 Petroleum Refining................. 419 (3)
43 Pharmaceutical Manufacturing....... 439 (1)
44 Phosphate Manufacturing............ 422 (3)
45 Photographic....................... 459 (3)
46 Plastic Molding and Forming........ 463 (2)
47 Porcelain Enameling................ 466 (3)
48 Pulp, Paper, and Paperboard........ 430 (2) and (3)
49 Rubber Manufacturing............... 428 (3)
50 Soaps and Detergents Manufacturing. 417 (3)
51 Steam Electric Power Generating.... 423 (4)
52 Sugar Processing................... 409 (3)
53 Textile Mills...................... 410 (5)
54 Timber Products Processing......... 429 (3)
55 Transportation Equipment Cleaning.. 442 (1)
56 Waste Combustors................... 444 (1)
------------------------------------------------------------------------
\*\ (Note: The descriptions of the ``Findings'' codes are presented
immediately prior to this table.
\5\ Based on available information, hospitals consist mostly of indirect
dischargers for which EPA has not established pretreatment standards.
As discussed in Section VII.D, EPA is including hospitals in its
review of the Health Services Industry, a potential new category for
pretreatment standards. As part of that process, EPA will review the
existing effluent guidelines for the few direct dischargers in the
category.
[[Page 76658]]
VI. EPA's 2007 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), and
307(b)
As discussed in section V and further in section VIII, EPA is
coordinating its annual reviews of existing effluent guidelines and
pretreatment standards under CWA sections 301(d), 304(b), 307(b) and
304(g) with the publication of preliminary Plans and biennial Plans
under section 304(m). Public comments received on EPA's prior reviews
and Plans helped the Agency prioritize its analysis of existing
effluent guidelines and pretreatment standards during the 2006 review.
The information gathered during the 2006 annual review, including the
identification of data gaps in the analysis of certain categories with
existing regulations, in turn, provides a starting point for EPA's 2007
annual review. See Table V-1 above. In 2007, EPA intends to again
conduct a screening-level analysis of all 56 categories and compare the
results against those from previous years. EPA will also conduct more
detailed analyses of those industries that rank high in terms of toxic
and non-conventional discharges among all point source categories.
Additionally, EPA intends to continue the detailed study of the Steam
Electric Power Generating (Part 423) category and start detailed
studies for the following categories: Coal Mining (Part 434), Oil and
Gas Extraction (Part 435) (only to assess whether to include Coal Bed
Methane extraction as a new subcategory), and Hospitals (Part 460). EPA
specifically invites comment and data on all 56 point source
categories.
VII. EPA's Evaluation of Categories of Indirect Dischargers Without
Categorical Pretreatment Standards To Identify Potential New Categories
for Pretreatment Standards
All indirect dischargers are subject to general pretreatment
standards (40 CFR 403), including a prohibition on discharges causing
``pass through'' or ``interference.'' See 40 CFR 403.5. All POTWs with
approved pretreatment programs must develop local limits to implement
the general pretreatment standards. All other POTWs must develop such
local limits where they have experienced ``pass through'' or
``interference'' and such a violation is likely to recur. There are
approximately 1,500 POTWs with approved pretreatment programs and
13,500 small POTWs that are not required to develop and implement
pretreatment programs.
In addition, EPA establishes technology-based national regulations,
termed ``categorical pretreatment standards,'' for categories of
industry discharging pollutants to POTWs that may pass through,
interfere with or otherwise be incompatible with POTW operations. CWA
section 307(b). Generally, categorical pretreatment standards are
designed such that wastewaters from direct and indirect industrial
dischargers are subject to similar levels of treatment.
EPA has promulgated such pretreatment standards for 35 industrial
categories. EPA evaluated various indirect discharging industries
without categorical pretreatment standards to determine whether their
discharges were causing pass through or interference, in order to
determine whether categorical pretreatment standards may be necessary
for these industrial categories.
Stakeholder comments and pollutant discharge information have
helped EPA identify industrial sectors for this review. In particular,
EPA has looked more closely at sectors that are comprised entirely or
nearly entirely of indirect dischargers, and is grouping them into the
following eight industrial categories: Food Service Establishments;
Industrial Laundries; Photoprocessing; Printing and Publishing;
Independent and Stand Alone Laboratories; Industrial Container and Drum
Cleaning (ICDC); Tobacco Products; and Health Services Industry. EPA is
including within the Health Services Industry the following activities:
Independent and Stand Alone Medical and Dental Laboratories, Offices
and Clinics of Doctors of Medicine, Offices and Clinics of Dentists,
Nursing and Personal Care Facilities, Veterinary Care Services, and
Hospitals and Clinics. EPA solicited comment on that grouping (see EPA-
HQ-OW-2004-0032-0038). For all eight of these industrial sectors, EPA
evaluated (1) the ``Pass Through Potential'' of toxic pollutants and
non-conventional pollutants through POTW operations; and (2) the
``Interference Potential'' of industrial indirect discharges with POTW
operations. EPA also received, reviewed, and summarized suggestions
from commenters on options for improving various categorical
pretreatment standards (see EPA-HQ-OW-2004-0032-0020).
Documents discussing EPA's review of categories of indirect
dischargers without categorical pretreatment standards are located in
the docket (see DCN 2173, 3402, and Section 19 of the Final 2006 TSD).
EPA solicits comment and data on categories not subject to categorical
pretreatment standards for its 2007 review.
A. EPA's Evaluation of ``Pass Through Potential'' of Toxic and Non-
Conventional Pollutants Through POTW Operations
For these eight industrial sectors, EPA evaluated the ``pass
through potential'' of toxic pollutants and non-conventional pollutants
through POTW operations. Historically, for most effluent guidelines
rulemakings, EPA determines the ``pass through potential'' by comparing
the percentage of the pollutant removed by well-operated POTWs
achieving secondary treatment with the percentage of the pollutant
removed by wastewater treatment options that EPA is evaluating as the
bases for categorical pretreatment standards (January 28, 1981; 46 FR
9408).
For six industry sectors, however, EPA was unable to gather the
data needed for a comprehensive analysis of the availability and
performance (e.g., percentage of the pollutants removed) of treatment
or process technologies that might reduce toxic pollutant discharges
beyond that of technologies already in place at these facilities.
Instead, EPA evaluated the ``pass through potential'' as measured by:
(1) The total annual TWPE discharged by the industrial sector; and (2)
the average TWPE discharge among facilities that discharge to POTWs.
EPA relied on a similar evaluation of ``pass through potential'' in
its prior decision not to promulgate national categorical pretreatment
standards for the Industrial Laundries industry. See 64 FR 45071
(August 18, 1999). EPA noted in this 1999 final action that, ``While
EPA has broad discretion to promulgate such [national categorical
pretreatment] standards, EPA retains discretion not to do so where the
total pounds removed do not warrant national regulation and there is
not a significant concern with pass through and interference at the
POTW.'' See 64 FR 45077 (August 18, 1999). EPA solicited comment on
this evaluation for determining the ``pass through potential'' for
industrial categories comprised entirely or nearly entirely of indirect
dischargers (see 70 FR 51054; August 29, 2005). In response to this
solicitation, EPA only received two comments on this methodology and
both comments were supportive of EPA's approach (see EPA-HQ-OW-2004-
0032-1042, 1051).
EPA's 2005 and 2006 reviews of these eight industrial sectors used
pollutant discharge information from TRI, PCS, and other publicly
available data to
[[Page 76659]]
estimate the total annual TWPE discharged per facility. EPA also relied
on wastewater sampling and site visits to better characterize the
pollutant discharges from the ICDC and Tobacco Products categories.
EPA's use of PCS data was limited as nearly all of the PCS discharge
monitoring data is from direct dischargers. Consequently, EPA
transferred pollutant discharges from direct dischargers to indirect
dischargers in some of the seven industrial sectors when other data
were not available. Based on these estimated toxic pollutant
discharges, EPA's review suggests that there is a low pass through
potential for seven of the eight industrial sectors and that
categorical pretreatment standards for these seven industrial sectors
are therefore not warranted at this time. These seven industrial
sectors are: Food Service Establishments; Industrial Container and Drum
Cleaning industry; Independent and Stand Alone Laboratories; Industrial
Laundries; Photoprocessing; Printing and Publishing; and Tobacco
Products. More information on EPA's detailed study of the Tobacco
Products category is provided in section VIII.C below.
EPA did not have enough information to determine whether there was
pass through potential for the remaining industrial sector: Health
Services Industries. EPA will continue to evaluate the pass through
potential for this industrial sector. In particular, EPA plans to
conduct a detailed study of the Health Services Industry in the 2007
and 2008 annual reviews. More information on this industry is provided
in section VIII.D below.
B. EPA's Evaluation of ``Interference Potential'' of Industrial
Indirect Discharges
For each of these eight industrial sectors EPA evaluated the
``interference potential'' of indirect industrial discharges. The term
``interference'' means a discharge which, alone or in conjunction with
a discharge or discharges from other sources, both: (1) Inhibits or
disrupts the POTW, its treatment processes or operations, or its sludge
processes, use or disposal; and (2) therefore is a cause of a violation
of any requirement of the POTW's NPDES permit (including an increase in
the magnitude or duration of a violation) or of the prevention of
sewage sludge use or disposal in compliance with applicable regulations
or permits. See 40 CFR 403.3(i). To determine the ``interference
potential,'' EPA generally evaluates the industrial indirect discharges
in terms of: (1) The compatibility of industrial wastewaters and
domestic wastewaters (e.g., type of pollutants discharged in industrial
wastewaters compared to pollutants typically found in domestic
wastewaters); (2) concentrations of pollutants discharged in industrial
wastewaters that might cause interference with the POTW collection
system (e.g., fats, oil, and grease discharges causing blockages in the
POTW collection system, hydrogen sulfide corrosion in the POTW
collection system), the POTW treatment system (e.g., high ammonia mass
discharges inhibiting the POTW treatment system; high oil and grease
mass discharges can also promote the growth of filamentous bacteria
that inhibit the performance of POTWs using trickling filters), or
biosolids disposal options; and (3) the potential for variable
pollutant loadings to cause interference with POTW operations (e.g.,
batch discharges or slug loadings from industrial facilities
interfering with normal POTW operations).
EPA relied on readily available information from the literature and
stakeholders to evaluate the severity, duration, and frequency of
interference incidents caused by industrial indirect discharges. As
part of its evaluation, EPA reviewed data from its report to Congress
on one type of interference incidents, blockages in the POTW collection
system leading to combined sewer overflows (CSOs) and sanitary sewer
overflows (SSOs). See Impacts and Controls of CSOs and SSOs, EPA 833-R-
04-001, August 2004. With respect to Food Service Establishments, EPA
noted that ``grease from restaurants, homes, and industrial sources is
the most common cause (47%) of reported blockages. Grease is
problematic because it solidifies, reduces conveyance capacity, and
blocks flow.'' Other major sources of blockages are grit, rock, and
other debris (27%), roots (22%), and roots and grease (4%).
Fats, oil, and grease (FOG) wastes are generated at food service
establishments as byproducts from food preparation activities. FOG
captured on-site is generally classified into two broad categories:
Yellow grease and grease trap waste (see DCN 2606). Yellow grease is
derived from used cooking oil and waste greases that are separated and
collected at the point of use by the food service establishment. Food
service establishments can adopt a variety of best management practices
or install interceptor/collector devices to control and capture the FOG
material before discharge to the POTW collection system (see DCN 3040,
3046). For example, instead of discharging yellow grease to POTWs, food
service establishments usually accumulate this material for pick-up by
consolidation service companies for re-sale or re-use in the
manufacture of tallow, animal feed supplements, fuels, or other
products (see Technical Development Document for the Final Effluent
Limitations Guidelines and Standards for the Meat and Poultry Products
Point Source Category (40 CFR 432), EPA-821-R-04-011, July 2004).
Additionally, food service establishments can install interceptor/
collector devices (e.g., grease traps in sinks and dish washer drain
lines) in order to accumulate grease on-site and prevent it from
entering the POTW collection system. Proper design, installation, and
maintenance procedures are critical for these devices to control and
capture the FOG (see DCN 3043, 3265). For example, interceptor/
collector devices must be designed and sized appropriately to allow for
emulsified FOG to cool and separate in a non-turbulent environment (see
DCN 3265). Additionally, it is particularly important for food service
establishments to be diligent in having their interceptor/collector
devices serviced at regular intervals (see DCN 2606, 2610, 2616, 3039).
The required maintenance frequency for interceptor/collector devices
depends greatly on the amount of FOG a facility generates as well as
any best management practices (BMPs) that the establishment implements
to reduce the FOG discharged into its sanitary sewer system. In many
cases, an establishment that implements BMPs will realize financial
benefit through a reduction in their required grease interceptor and
trap maintenance frequency (see DCN 3045). The annual production of
collected grease trap waste and uncollected grease entering sewage
treatment plants can be significant and ranges from 800 to 17,000
pounds/year per restaurant (see DCN 2606).
Information collected from control authorities and stakeholders
indicate that a growing number of control authorities are using their
existing authority (e.g., general pretreatment standards in Part 403 or
local authority) to establish and enforce more FOG regulatory controls
(e.g., numeric pretreatment limits, best management practices including
the use of interceptor/collector devices) for food service
establishments to reduce interferences with POTW operations (e.g.,
blockages from fats, oils, and greases discharges, POTW treatment
interference from Nocardia filamentous foaming, damage to collection
system from hydrogen sulfide generation) (see DCN 3044, 3039). For
example, since
[[Page 76660]]
identifying a 73% non-compliance rate with its grease trap ordinance
among restaurants, New York City has instituted a $1,000-per-day fine
for FOG violations (see DCN 2616). Likewise, more and more municipal
wastewater authorities are addressing FOG discharges by imposing
mandatory measures of assorted kinds, including inspections, periodic
grease pumping, stiff penalties, and even criminal citations for
violators, along with `strong waste' monthly surcharges added to
restaurant sewer bills. Surcharges are reportedly ranging from $100 to
as high as $700 and more; the fees being deemed necessary to cover the
cost of inspections and upgraded infrastructure (see DCN 2616).
Pretreatment programs are developing and using inspection checklists
for both food service establishments and municipal pretreatment
inspectors to control FOG discharges (see DCN 3040). Additionally, EPA
identified typical numeric local limits controlling oil and grease in
the range of 50 mg/L to 450 mg/L with 100 mg/L as the most common
reported numeric pretreatment limit (see DCN 3131). Finally, EPA
expects that blockages from FOG discharges will decrease as POTWs
incorporate Capacity, Management, Operations, and Maintenance (CMOM)
program activities into their daily practices. Collection system owners
or operators who adopt CMOM program activities are likely to reduce the
occurrence of sewer overflows and improve their operations and maintain
compliance with their NPDES permit (see DCN 2847, 3416). In summary,
EPA finds that controlling FOG discharges from this industrial category
is an essential element in controlling CSOs and SSOs and ensuring the
proper operations for many POTWs. However, national categorical
standards are not needed for this industrial category at this time
based on EPA's finding that control authorities can use their existing
regulatory tools and authority for controlling the interference
problems caused by this industrial category. EPA believes the
interference incidents identified in CSO/SSO report to Congress may
indicate the need for additional oversight and enforcement of existing
regulations and controls, but do not indicate a need for new
categorical pretreatment standards for this industry at this time.
EPA received comments from stakeholders indicating that even with
current authority provided in the general pretreatment regulations;
some POTWs have difficulty controlling interference from specific
categories of indirect industrial dischargers (see EPA-HQ-OW-2004-0032-
0020, 1090). EPA notes, however, that the interference potential varies
from POTW to POTW because interference problems depend not only on the
nature of the discharge but also on local conditions (e.g., the type of
treatment process used by the POTW, local water quality, the POTW's
chosen method for handling sludge) (see DCN 3252). Consequently,
pollutants that interfere with the operation of one POTW may not
adversely affect the operation of another. These differences are
attributable to several factors including the varying sensitivities of
different POTWs and the constituent composition of wastewater collected
and treated by the POTW (46 FR 9406; January 28, 1981).
EPA believes that the national pretreatment program already
provides the necessary regulatory tools and authority to local
pretreatment programs for controlling interference problems. Under the
provisions of part 403.5(c)(1) and (2), in defined circumstances, a
POTW must establish specific local limits for industrial users to guard
against interference with the operation of the municipal treatment
works. See 46 FR 9406 (January 28, 1981). Consequently, pretreatment
oversight programs should include activities designed to identify and
control sources of potential interference and, in the event of actual
interference, enforcement against the violator. EPA solicits comment on
whether there are industrial sectors discharging pollutants that cause
interference issues that cannot be adequately controlled through the
existing pretreatment program.
Based on its review of current information, EPA has not identified
interference potential from the eight industrial sectors that would
warrant the development of national, categorical pretreatment
standards.
C. Tobacco Products
One commenter on the preliminary 2004 Plan suggested that EPA
consider developing effluent guidelines for the Tobacco Products
industry due to the potential for facilities in this industrial sector
to discharge nontrivial amounts of nonconventional and toxic
pollutants. In particular, this commenter expressed concern over the
quantity of toxics and carcinogens that may be discharged in wastewater
associated with the manufacture of cigarettes. At the time of
publication of the final 2004 Plan, EPA was unable to determine, based
on readily available information, whether to identify the Tobacco
Products industry as a potential new category in the Plan. In
particular, EPA lacked information about whether Tobacco Products
facilities discharge toxic and nonconventional pollutants in nontrivial
amounts, whether the industry is composed entirely or almost entirely
of indirect dischargers, and whether indirect dischargers in the
industry caused pass-through or interference with POTWs. In order to
better respond to these comments and determine whether to identify the
tobacco products industrial sector as a potential new point source
category, EPA conducted a detailed study of the pollutant discharges
for this industrial sector. Based on this study, EPA is not identifying
the Tobacco Products industry as a potential new category in this Plan,
for the reasons discussed below.
1. Industry Profile
This industrial sector is divided into the following four industry
groups: (1) SIC code 2111 (Cigarettes)--establishments primarily
engaged in manufacturing cigarettes from tobacco or other materials;
(2) SIC code 2121 (Cigars)--establishments primarily engaged in
manufacturing cigars; (3) SIC code 2131 (Smokeless and Loose Chewing
Tobacco)--establishments primarily engaged in manufacturing chewing and
smoking tobacco and snuff; and (4) SIC code 2141 (Reconstituted Tobacco
and Tobacco Stemming and Re-drying)--establishments primarily engaged
in the stemming and re-drying of tobacco or in manufacturing
reconstituted tobacco. Based on information in the 2002 Economic Census
and reported in 2004 to the U.S. Alcohol and Tobacco Tax and Trade
Bureau (TTB), EPA estimates there are 149 tobacco products facilities
in the United States. The number of tobacco products processing
facilities has been in decline as facilities consolidate. Of these
facilities, EPA has identified 3 with active NPDES permits that
discharge process wastewater directly to waters of the U.S. and at
least 15 that discharge indirectly to POTWs. The remaining dischargers
are either indirect dischargers or zero dischargers. As few tobacco
products processing facilities discharge directly to waters of the U.S.
(3 of the 149 facilities in this category), EPA determined that this
category is almost entirely composed of indirect dischargers and
therefore not subject to identification under section 304(m)(1)(B). EPA
therefore proceeded to review this category in its review of indirect
dischargers without categorical pretreatment standards to determine
whether such standards were warranted under CWA sections 304(g) and
307(b).
[[Page 76661]]
2. Data Collection
In conducting its detailed study, EPA conducted outreach to the
most significant dischargers in this category. These companies have
provided extensive information on processes, pollutant discharges and
existing permits. Based on information collected to date, EPA believes
that primary processing at cigarette manufacturers and their related
reconstituted tobacco operations is the main source of discharged
wastewater pollution in this industrial sector. EPA conducted site
visits at six cigarette manufacturing facilities with two of these
facilities having dedicated reconstituted tobacco production lines.
In addition to collecting information on processes and wastewater
generation, EPA also collected grab samples of wastewater during these
site visits. EPA collected these wastewater samples to: (1) Further
characterize wastewater generated and/or discharged at these
facilities; and (2) evaluate treatment effectiveness, as applicable.
For the sites visited, EPA also contacted states and POTWs to obtain
existing permits and identify concerns. Finally, EPA reviewed and
evaluated comments from the preliminary 2006 Plan regarding the tobacco
products processing industry.
3. Review of Indirect Discharges From Tobacco Products Industry
EPA identified at least 15 tobacco products processing facilities
that discharge to POTWs. None of the indirect dischargers treat their
wastewater prior to discharge to the local POTW. EPA's review of
effluent data from indirect discharging tobacco products processing
facilities demonstrates that such discharges are generally
characterized by low concentrations of toxic and non-conventional
pollutants--primarily metals. One exception is nicotine, with discharge
concentrations ranging from 7,500 ug/L to 31,000 ug/L. Nicotine and
metal discharges account for approximately 93% of the total annual TWPE
associated with indirect tobacco products processing discharges. Source
water appears to be the biggest contributor to metal discharges at
indirect facilities.
4. EPA's Evaluation of ``Pass Through Potential'' of Toxic and Non-
conventional Pollutants Through POTW Operations From the Tobacco
Products Industry
EPA used the two part evaluation described above to identify
whether there is a significant ``pass-through potential'' of toxic
pollutants and non-conventional pollutants through POTW operations.
Specifically, EPA compared toxic pollutant loadings currently
discharged by Tobacco Products facilities to POTWs and surface waters
(baseline loadings) to toxic pollutant loadings that would be
discharged to POTWs and surface waters upon compliance with
pretreatment standards based on biological treatment with nutrient
removal (potential post-regulatory loadings). Based on information
obtained in this study, POTWs achieve nicotine removals in excess of
96%. EPA found the annual incremental toxic pollutant removals per
facility would be small, approximately 28.6 TWPE/facility. This is
comparable to the incremental removals for Industrial Laundries (32
TWPE/facility), which EPA determined in a proposed rulemaking did not
warrant the development of pretreatment standards for that industry.
See August 18, 1999 (64 FR 45071). Accordingly, EPA has determined that
there is not evidence of significant ``pass-through potential'' for
indirect dischargers in this industry.
5. EPA's Evaluation of ``Interference Potential'' of Industrial
Indirect Discharges From the Tobacco Products Industry
EPA evaluated possible negative effects of discharges from tobacco
products processing facilities to POTWs. As explained above, nicotine
and metals account for approximately 93% of the total annual TWPE
associated with indirect discharges from this category. EPA compared
the concentrations of metals found in indirect tobacco products
processing discharges to those typically found in POTW influent. This
comparison demonstrated that metals concentrations discharged by
tobacco products processing facilities are lower than those found in
typical POTW influent. These findings indicate that discharges from
tobacco products processing should not inhibit or disrupt operations of
the receiving POTWs. To verify this finding, EPA contacted POTWs
receiving significant tobacco products processing discharges. All POTWs
contacted indicated they had experienced no problem handling and
treating such discharges (see DCN 3395).
6. EPA's Evaluation of Direct Discharges From the Tobacco Products
Industry
As discussed above, EPA found that this industry was composed
almost entirely of industry dischargers and therefore reviewed it in
assessing whether to establish categorical pretreatment standards under
CWA sections 304(g) and 307(b). In the context of this review, EPA also
examined discharges from the three directly discharging facilities in
this industry.
Biological treatment with or without nutrient removal is the most
commonly employed wastewater treatment technology by the direct
discharging facilities. Treatability data collected from tobacco
products processing facilities demonstrate on-site wastewater treatment
systems are highly efficient with BOD5 and nicotine removals
in excess of 99%. Resulting discharges are characterized by low
concentrations of toxic and non-conventional pollutants--primarily
metals. These metal discharges largely result from source water
contributions. Additionally, permitting authorities report few problems
with these tobacco products processing discharges. Because EPA has
identified only three tobacco products processing facilities
discharging process wastewater directly to waters of the U.S. and
because existing treatment systems are highly effective, EPA believes
that national effluent guidelines for direct dischargers are
unwarranted at this time. Such discharges can be appropriately
addressed by site-specific effluent limitations established by NPDES
permit writers on a BPJ basis.
7. Summary of EPA's Review of the Tobacco Products Industry
Because EPA found that this industry is composed almost entirely of
indirect dischargers, EPA did not identify it as a new category under
section 304(m)(1)(B) and instead considered whether to adopt
pretreatment standards for this industry under CWA sections 304(g) and
307(b). EPA has concluded that national pretreatment standards are not
warranted for this industry at this time because the incremental toxic
pollutant removal would be small and discharges from this industry do
not cause significant pass through or interference at POTWs.
D. Health Services Industry
The Health Services industry includes establishments engaged in
various aspects of human health (e.g. hospitals, dentists, medical/
dental laboratories) and animal health (e.g. veterinarians). These
establishments fall under SIC Major Group 80 Health Services and
Industry Group 074 Veterinary Services. According to the 2002 Census,
there are over 500,000 facilities in the health services industries. In
1976, EPA promulgated effluent guidelines for direct discharging
hospitals with greater than 1,000 occupied beds. 40 CFR part 460. The
remaining facilities in the
[[Page 76662]]
Health Services industry are not subject to categorical limitations and
standards.
In evaluating the health services industries to date, EPA has found
little readily available information. Both PCS and TRI contain sparse
information on health care service establishments. In 1989, EPA
published a Preliminary Data Summary (PDS) for the Hospitals Point
Source Category (see DCN 2231). Also, EPA's Office of Enforcement and
Compliance Assistance (OECA) published a Healthcare Sector Notebook in
2005 (see DCN 2183). In addition, industry and POTWs have conducted
studies to estimate discharges from some portions of this industry--
such as dentists (see DCN 2237).
Based on preliminary information, EPA has found that nearly all
health services establishments discharge indirectly to POTWs. The major
source of concern for discharges from health care service
establishments include mercury, silver, endocrine disrupting chemicals
(EDCs), pharmaceuticals, and biohazards. While EPA has some information
on mercury and silver discharges, EPA has little to no information on
wastewater discharges of emerging pollutant concerns such as EDCs and
pharmaceuticals.
EPA will conduct a more focused detailed review in the 2007 and
2008 annual reviews for the Health Services Industry. In this detailed
study, EPA plans to better quantify pollutants--including EDCs--in
wastewater discharged by health service facilities. EPA will also
investigate whether there are technologies, process changes or
pollution prevention alternatives that would significantly reduce
discharges to POTWs. Finally, EPA will attempt to evaluate the pass-
through and interference potential of such discharges.
VIII. The Final 2006 Effluent Guidelines Program Plan Under Section
304(m)
In accordance with CWA section 304(m)(2), EPA published the
preliminary 2006 Plan for public comment prior to this publication of
the final 2006 Plan. See August 29, 2005 (70 FR 51042). The Agency
received 61 comments from a variety of commenters including industry
and industry trade associations, municipalities and sewerage agencies,
environmental groups, other advocacy groups, two tribal governments,
two private citizens, two Federal agencies, and seven State government
agencies. Many of these public comments are discussed in this notice.
The Docket accompanying this notice includes a complete set of all of
the comments submitted, as well as the Agency's responses (see DCN
3403). EPA carefully considered all public comments and information
submitted to EPA in developing the final 2006 Plan.
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. This
final 2006 Plan announces EPA's schedule for performing its section
304(b) reviews. The schedule is as follows: EPA will coordinate its
annual review of existing effluent guidelines under section 304(b) with
its publication of the preliminary and final Plans under CWA section
304(m). In other words, in odd-numbered years, EPA intends to complete
its annual review upon publication of the preliminary 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 2006 annual review is the
review cycle ending upon the publication of this final 2006 Plan.
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 Plans, e.g., by identifying candidates for ELG
revision for which EPA can schedule rulemaking in the Plan, or 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 2006 annual review along with the final
2006 Plan, EPA hopes to gather and receive data and information that
will inform its reviews for 2007 and 2008 and the 2008 Plan.
2. Schedule for Possible Revision of Effluent Guidelines Promulgated
Under Section 304(b)
EPA is currently conducting rulemakings to potentially revise
existing effluent guidelines and pretreatment standards for the
following categories: Organic Chemicals, Pesticides and Synthetic
Fibers (OCPSF) and Inorganic Chemicals (to address discharges from
Vinyl Chloride and Chlor-Alkali facilities identified for effluent
guidelines rulemaking in the final 2004 Plan, now termed the ``Chlorine
and Chlorinated Hydrocarbon (CCH) manufacturing'' rulemaking) and
Concentrated Animal Feeding Operations (rulemaking on BCT technology
options for controlling fecal coliform). For a summary of the status of
the current effluent guidelines rulemakings, their schedules, and a
list of completed effluent guidelines rulemakings conducted by EPA
since 1992, see the Docket accompanying this notice (see DCN 3765). EPA
emphasizes that identification of the rulemaking schedules for these
effluent guidelines does not constitute a final decision to revise the
guidelines. EPA may conclude at the end of the formal rulemaking
process--supported by an administrative record following an opportunity
for public comment--that effluent guidelines revisions are not
appropriate for these categories. EPA is not scheduling any other
existing effluent guidelines for rulemaking at this time.
B. Identification of Potential New Point Source Categories Under CWA
Section 304(m)(1)(B)
The final Plan must also 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); S. Rep. No. 99-50, Water Quality Act of
1987, Leg. Hist. 31 (indicating that section 304(m)(1)(B) applies to
``non-trivial discharges''). The final Plan must also establish a
schedule for the promulgation of effluent guidelines for the categories
identified under section 304(m)(1)(B), providing for final action on
such rulemaking not later than three years after the identification of
the category in a final
[[Page 76663]]
Plan.\6\ See CWA section 304(m)(1)(C). For the reasons discussed below,
EPA is not at this time identifying any potential new categories for
effluent guidelines rulemaking and therefore is not scheduling effluent
guidelines rulemaking for any such categories in this Plan. EPA is,
however, currently conducting rulemakings to determine whether to
establish effluent guidelines for two potential new categories
identified in the final 2004 Plan: Airport Deicing Operations and
Drinking Water Treatment.
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\6\ EPA recognizes that one court--the U.S. District Court for
the Central District of California--has found that EPA has a duty to
promulgate effluent guidelines within three years for new categories
identified in the Plan. See NRDC et al. v. EPA, No. 04-8307, 2006 WL
1834260 (C.D. Ca, June 27, 2006). However, EPA continues to believe
that the mandatory duty under section 304(m)(1)(c) is limited to
providing a schedule for concluding the effluent guidelines
rulemaking--not necessarily promulgating effluent guidelines--within
three years, and is considering whether to appeal this decision.
---------------------------------------------------------------------------
In order to identify industries not currently subject to effluent
guidelines, EPA primarily used data from TRI and PCS. As discussed in
the docket, facilities with data in TRI and PCS are identified by a
four-digit SIC code (see DCN 3402). EPA performs a crosswalk between
the TRI and PCS data, identified with a four digit SIC code, and the 56
point source categories with effluent guidelines or pretreatment
standards to determine if a four-digit SIC code is currently regulated
by existing effluent guidelines (see DCN 3402). EPA also relied on
comments received on its previous 304(m) plans to identify potential
new categories. EPA then assessed whether these industrial sectors not
currently regulated by effluent guidelines meet the criteria specified
in section 304(m)(1)(B), as discussed below.
First, section 304(m)(1)(B) specifically applies only to
``categories of sources'' for which EPA has not promulgated effluent
guidelines. Because this section does not define the term
``categories,'' EPA interprets this term based on the use of the term
in other sections of the Clean Water Act, legislative history, and
Supreme Court case law, and in light of longstanding Agency practice.
As discussed below, these sources indicate that the term ``categories''
refers to an industry as a whole based on similarity of product
produced or service provided, and is not meant to refer to specific
industrial activities or processes involved in generating the product
or service. EPA therefore identifies in its biennial Plan only those
new industries that it determines are properly considered stand-alone
``categories'' within the meaning of the Act--not those that are
properly considered potential new subcategories of existing categories
based on similarity of product or service.
The use of the term ``categories'' in other provisions of the CWA
indicates that a ``category'' encompasses a broad array of industrial
operations related by similarity of product or service provided. For
example, CWA section 306(b)(1)(A) provides a list of ``categories of
sources'' (for purposes of new source performance standards) that
includes ``pulp and paper mills,'' ``petroleum refining,'' ``iron and
steel manufacturing,'' and ``leather tanning and finishing.'' These
examples suggest that a ``category'' is intended to encompass a
diversity of facilities engaged in production of a similar product or
provision of a similar service. See also CWA section 402(e) and (f)
(indicating that ``categories'' are composed of smaller subsets such as
``class, type, and size''). In the effluent guidelines program, EPA
uses these factors, among others, to define ``subcategories'' of a
larger industrial category.
The legislative history of later amendments to CWA section 304
indicates that Congress was aware that there was a distinction between
``categories'' and ``subcategories'' in effluent guidelines. See Leg.
Hist: Senate Committee on Environment and Public Works, A Legislative
History of the Clean Water Act of 1977, prepared by the Environmental
Policy Division of the Congressional Research Service of the Library of
Congress (Comm. Print 1978) at 455 (indicating that BAT calls for the
examination of ``each industry category or subcategory''). See also
Chemical Manufacturers' Association v. EPA, 470 U.S. 116, 130 (1985)
(interpreting this legislative history as ``admonish[ing] [EPA] to take
into account the diversity within each industry by establishing
appropriate subcategories.''). Therefore, in light of Congress's
awareness of the distinction between categories and subcategories, EPA
reasonably assumes that Congress's use in 1987 of the term
``categories'' in section 304(m)(1)(B) was intentional. If Congress had
intended for EPA to identify potential new subcategories in the Plan,
it would have said so. Congress's direction for EPA to identify new
``categories of sources'' cannot be read to constrain EPA's discretion
over its internal planning processes by requiring identification of
potential new ``subcategories'' in the Plan. See Norton v. Southern
Utah Wilderness Alliance et al., 124 S Ct. 2373, 2383 (2004) (finding
that a statutory mandate must be sufficiently specific in order to
constrain agency discretion over its internal planning processes).
Moreover, the distinction between a category and a subcategory has
long been recognized by the Supreme Court. In Chemical Manufacturers'
Association v. EPA, the Court recognized that categories are
``necessarily rough-hewn'' (id. at 120) and that EPA establishes
subcategories to reflect ``differences among segments of the industry''
based on the factors that EPA must consider in establishing effluent
limitations. Id. at 133, n. 24. See also Texas Oil and Gas Assn. v.
EPA, 161 F.3d 923, 939 (5th Cir. 1998) (``The EPA is authorized--
indeed, is required--to account for substantial variation within an
existing category * * * of point sources.''). Indeed, the effluent
guideline considered by the Supreme Court in the Du Pont case was
divided into 22 subcategories, each with its own set of technology-
based limitations, reflecting variations in processes and pollutants.
Id. at 22 and nn. 9 and 10. See also id. at 132 (noting that
legislative history ``can be fairly read to allow the use of
subcategories based on factors such as size, age, and unit
processes.'').
EPA's interpretation of the term ``categories'' is consistent with
longstanding Agency practice. Pursuant to CWA section 304(b), which
requires EPA to establish effluent guidelines for ``classes and
categories of point sources,'' EPA has promulgated effluent guidelines
for 56 industrial ``categories.'' Each of these ``categories'' consists
of a broad array of facilities that produce a similar product or
perform a similar service--and is broken down into smaller subsets,
termed ``subcategories,'' that reflect variations in the processes,
treatment technologies, costs and other factors associated with the
production of that product that EPA is required to consider in
establishing effluent guidelines under section 304(b). For example, the
``Pulp, Paper and Paperboard point source category'' (40 CFR part 430)
encompasses a diverse range of industrial facilities involved in the
manufacture of a like product (paper); the facilities range from mills
that produce the raw material (pulp) to facilities that manufacture
end-products such as newsprint or tissue paper. EPA's classification of
this ``industry by major production processes addresses many of the
statutory factors set forth in CWA Section 304(b), including
manufacturing processes and equipment (e.g., chemical, mechanical, and
secondary fiber pulping; pulp bleaching; paper making); raw materials
(e.g., wood, secondary fiber, non-wood fiber, purchased pulp); products
[[Page 76664]]
manufactured (e.g., unbleached pulp, bleached pulp, finished paper
products); and, to a large extent, untreated and treated wastewater
characteristics (e.g., BOD loadings, presence of toxic chlorinated
compounds from pulp bleaching) and process water usage and discharge
rates.'' \7\ Each subcategory reflects differences in the pollutant
discharges and treatment technologies associated with each process.
Similarly, the ``Iron and Steel Manufacturing point source category''
(40 CFR part 420) consists of various subcategories that reflect the
diverse range of processes involved in the manufacture of iron and
steel, ranging from facilities that make the basic fuel used in the
smelting of iron ore (subpart A--Cokemaking) to those that cast the
molten steel into molds to form steel products (subpart F--Continuous
Casting). An example of an industry category based on similarity of
service provided is the Transportation Equipment Cleaning Point Source
Category (40 CFR Part 442), which is subcategorized based on the type
of tank (e.g., rail cars, trucks, barges) or cargo transported by the
tanks cleaned by these facilities, reflecting variations in wastewaters
and treatment technologies associated with each.
---------------------------------------------------------------------------
\7\ U.S. EPA, 1997. Supplemental Technical Development Document
for Effluent Limitations Guidelines and Standards for the Pulp,
Paper, and Paperboard Category, Page 5-3, EPA-821-R-97-011, October
1997.
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Thus, EPA's first decision criterion asks whether a new industrial
operation or activity in question is properly characterized as an
industry ``category'' based on similarity of product produced or
service provided, or whether it simply represents a variation (e.g. new
process) among facilities generating the same product and is therefore
properly characterized as a potential new subcategory. If it is
properly considered a stand-alone category in its own right, EPA
addresses it pursuant to sections 304(m)(1)(B) and (C). If EPA
determines that it is a potential new ``subcategory,'' EPA reviews the
activity in its section 304(b) annual review of the existing categories
in which it would belong, in order to determine whether it would be
appropriate to revise the effluent guidelines for that category to
include limits for the new subcategory.
As a practical matter, this approach makes sense. There are
constantly new processes being developed within an industry category--
new ways of making paper or steel, new ways of cleaning transportation
equipment, new ways of extracting oil and gas, for example. These new
processes are closely interwoven with the processes already covered by
the existing effluent guideline for the category--they often generate
similar pollutants, are often performed by the same facilities, and
their discharges can often be controlled by the same treatment
technology. Therefore, it is more efficient for EPA to consider
industry categories holistically by looking at these new processes when
reviewing and revising the effluent guideline for the existing
category. The opposite approach could lead to a situation when EPA
would do a separate effluent guideline every time a new individual
process emerges without considering how these new technologies could
affect BAT for related activities. In revising effluent guidelines, EPA
often creates new subcategories to reflect new processes. For example,
the effluent guidelines for the pesticides chemicals category (40 CFR
part 455) did not originally cover refilling establishments because
this process was developed after the limitations were first
promulgated. When EPA revised the effluent guidelines for the
Pesticides Chemicals category, EPA included refilling establishments as
a new subcategory subject to the effluent limits for this category. The
issue is not whether a guideline should be developed for a particular
activity, but whether the analysis should occur in isolation or as part
of a broader review.
To ensure appropriate regulation of such new subcategories prior to
EPA's promulgation of new effluent guidelines for the industrial
category to which they belong, under EPA's regulations at 40 CFR part
125.3(c), a permit writer is required to establish technology-based
effluent limitations for these processes on a case by case, ``Best
Professional Judgment'' (BPJ) basis, considering the same factors that
EPA considers in promulgating categorical effluent limitations
guidelines. These new processes are covered by these BPJ-based effluent
guidelines until the effluent guidelines for the industrial category is
revised to include limits for these new subcategories.
EPA's approach to addressing new industries is analogous to EPA's
approach to addressing newly identified pollutants. When EPA identifies
new pollutants associated with the discharge from existing categories,
EPA considers limits for those new pollutants in the context of
reviewing and revising the existing effluent guidelines for that
category. For example, EPA revised effluent limitations for the
bleached papergrade kraft and soda and papergrade sulfite subcategories
within the Pulp, Paper, and Paperboard point source category (40 CFR
430) to add BAT limitations for dioxin, which was not measurable when
EPA first promulgated these effluent guidelines and pretreatment
standards and was not addressed by the pollutant control technologies
considered at that time. See 63 FR 18504 (April 15, 1998).
In short, for the reasons discussed above, EPA believes that the
appropriateness of addressing a new process or pollutant discharge is
best considered in the context of revising an existing set of effluent
guidelines. Accordingly, EPA analyzed similar industrial activities not
regulated by existing regulations as part of its annual review of
existing effluent guidelines and pretreatment standards.
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 in the biennial Plan any
industrial categories composed exclusively or almost exclusively of
indirect discharging facilities regulated under section 307. For
example, based on its finding that the Tobacco Products industry
consists almost exclusively of indirect dischargers, EPA did not
identify this industry in the Plan but instead considered whether to
adopt pretreatment standards for this industry in the context of its
section 304(g) / 307(b) review of indirect dischargers. Similarly, EPA
would not identify in the Plan categories for which effluent guidelines
do not apply, 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, CWA section 304(m)(1)(B) applies only to industrial
categories of sources that discharge toxic or non-conventional
pollutants to waters of the United States. EPA therefore did not
identify in the Plan industrial activities for which conventional
pollutants, rather than toxic or non-conventional pollutants, are the
pollutants of concern. For example, EPA did not identify in this Plan
the construction industry because its discharges consist almost
entirely of conventional pollutants. See DCN 04112. Therefore, section
304(m)(1)(B) does not apply to this point source category. EPA
mistakenly identified this industry under section 304(m)(1)(B) in the
2002 Plan, not realizing at that time that its discharge consisted
almost entirely of conventional pollutants. EPA corrected this mistake
by removing this industry
[[Page 76665]]
from its 2004 Plan.\8\ In addition, even when toxic and non-
conventional pollutants might be present in an industrial category's
discharge, section 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 intent, to develop national effluent
guidelines for categories of sources that discharge trivial amounts of
toxic or non-conventional pollutants and therefore pose an
insignificant hazard to human health or the environment. See Senate
Report Number 50, 99th Congress, 1st Session (1985); WQA87 Legislative
History 31 (see DCN 03911). 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 to human health or the environment
associated with toxic or non-conventional pollutants.
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\8\ EPA recognizes that a district court recently held that EPA
lacked the discretion to remove the construction industry from the
Plan (see NRDC et al. v. EPA, No. CV-04-8307 (GHK) (C.D. Ca., June
27, 2006))--but notes that the court did not order EPA to put this
industry back on the Plan. Moreover, EPA continues to believe that
section 304(m)(1)(B) does not apply to this point source category--
and that it must have the authority to correct this mistaken
identification.
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Finally, EPA interprets section 304(m)(1)(B) to give EPA the
discretion to identify in the Plan only those potential new categories
for which an effluent guideline may be an appropriate tool. Therefore,
EPA does not identify in the Plan all potential new categories
discharging toxic and non-conventional pollutants. Rather, EPA
identifies only those potential new categories for which it believes
that effluent guidelines may be appropriate, taking into account Agency
priorities, resources and the full range of other CWA tools available
for addressing industrial discharges.
This interpretation is supported by the Supreme Court's decision in
Norton v. Southern Utah Wilderness Alliance et al. (124 S. Ct. 2373,
2383 (2004)), which recognized the importance of agency discretion over
its internal planning processes. Specifically, the Court in Norton held
that a statute requiring an agency to ``manage wilderness study areas *
* * in a manner so as not to impair the suitability of such areas'' was
too broad to constrain the agency's discretion over its internal land
use planning processes. See also Fund for Animals et al. v. U.S. Bureau
of Land Management, No. 04-5359, 2006 U.S. App. LEXIS 21206 (D.C. Cir.,
August 18, 2006); Center for Biological Diversity v. Veneman, 394 F.3d
1108 (9th Cir. 2005) (both cases following Norton line of reasoning to
find that statutory mandate was not sufficiently specific to constrain
agency discretion over its internal planning processes). In this case,
the statutory mandate at issue--establish technology-based effluent
limits that take into account a range of factors including ``such other
factors as the Administrator deems appropriate''--also lacks the
specificity to constrain the Agency's discretion over its effluent
guidelines planning process. See CWA section 304(b)(2)(B). This broad
statutory mandate gives EPA the discretion to identify in its section
304(m) Plan only those industrial categories for which it determines
that effluent guidelines would be ``appropriate'' and to rely on other
CWA tools--such as site-specific technology based limitations developed
by permit writers on a BPJ basis--when it determines that such tools
would be a more effective and efficient way of increasing the
stringency of pollution control through NPDES permits.
Congress specifically accorded EPA with the discretion to choose
the appropriate tool for pressing the development of new technologies,
authorizing EPA to develop technology-based effluent limitations using
a site-specific BPJ approach under CWA section 402(a)(1), rather than
pursuant to an effluent guideline. See CWA section 301(b)(3)(B).
Significantly, section 301(b)(3)(B) was enacted contemporaneously with
section 304(m) and its planning process, suggesting that Congress
contemplated the use of both tools, with the choice of tools in any
given 304(m) plan left to the Administrator's discretion. The Clean
Water Act requirement that EPA develop an effluent guideline plan--when
coupled with the broad statutory mandate to consider ``appropriate''
factors in establishing technology-based effluent limitations and the
direction to establish such limitations either through effluent
guidelines or site-specific BAT decision-making--cannot be read to
constrain the Agency's discretion over what it includes in its plan.
Moreover, because section 304(m)(1)(C) requires EPA to complete an
effluent guidelines rulemaking within three years of identifying an
industrial category in a 304(m) Plan,\9\ EPA believes that Congress
intended to give EPA the discretion under section 304(m)(1)(B) to
prioritize its identification of potential new industrial categories so
that it can use available resources effectively. Otherwise, EPA might
find itself conducting rushed, resource-intensive effluent guidelines
rulemakings where none is actually needed for the protection of human
health and the environment, or where such protection could be more
effectively achieved through other CWA mechanisms. 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,
consistent with Agency priorities and the funds appropriated by
Congress to execute them. By crafting section 304(m) as a planning
mechanism, Congress has given EPA that discretion.
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\9\ EPA recognizes that a recent district court held that
section 304(m)(1)(c) requires EPA to promulgate effluent guidelines
within three years for new categories identified in the Plan--not
simply to conclude rulemaking in three years. See NRDC et al. v.
EPA, No. 04-8307, 2006 WL 1834260 (C.D. Ca, June 27, 2006). EPA
disagrees with this interpretation and is considering whether to
appeal this decision. If upheld on appeal, this decision would limit
EPA's discretion regarding whether or not to promulgate effluent
guidelines for new categories identified in the Plan. However, it
would not affect EPA's discretion under section 304(m)(1)(B) to
identify new industries in the Plan in the first place.
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Like the land use plan at issue in Norton, EPA's plan is ultimately
``a statement of choices and priorities.'' See Norton v. Southern Utah
Wilderness Alliance, et al., 124 S. Ct. 2373, 2383 (2004). 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. EPA has given careful consideration and summarized its
findings with respect to all industries suggested by commenters as
candidates for inclusion in the Plan. 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.
[[Page 76666]]
IX. Status of ``Strategy for National Clean Water Industrial
Regulations'' and EPA's Effluent Guidelines Reviews
A. Review of the Draft Strategy
EPA first solicited public comment on the draft Strategy for
National Clean Water Industrial Regulations (``Strategy'') on November
29, 2002 (67 FR 71165) and again on August 29, 2005 (70 FR 51042). EPA
has used the draft Strategy and comments on the draft Strategy to shape
the methodology for its annual reviews of existing effluent guidelines
and pretreatment standards and effluent guidelines planning. In doing
so, EPA has found that its effluent guidelines reviews and planning are
an on-going and iterative process, and that its methodology for
conducting these reviews and planning must continually be updated to
reflect available data and tools and respond to public comments.
Consequently, rather than publishing a ``final'' Strategy as a separate
static document, EPA has chosen instead to use the Federal Register
notices accompanying the preliminary and final 304(m) plans to describe
and solicit comment on its evolving process and criteria for conducting
annual reviews and planning, building upon the major elements of the
draft Strategy. EPA encourages the public to continue to provide
comments on how EPA can improve its effluent guidelines reviews and
planning processes.
B. Changes to Annual Review Methodology Since First Publication of the
Draft Strategy
EPA first solicited public comments in the November 29, 2002,
Federal Register notice (67 FR 71165) announcing the availability of
the draft Strategy. In response, EPA received 22 public comments on the
draft Strategy. EPA requested comment a second time in the same notice
as the preliminary 2006 Plan (August 29, 2005; 70 FR 51042). In
particular, EPA used this second comment period to request comments on
its proposed use of the four factors for identifying existing effluent
guidelines for revision described in the draft Strategy and invited the
public to identify additional factors for EPA's consideration. The
Agency was also interested in receiving comments on whether each of
these four factors should be ranked, and if so, whether different
weights should be applied to each. EPA received two additional public
comments. These 24 public comments are included in Docket ID No. EPA-
HQ-OW-2002-0020.
After reviewing public comments on the draft Strategy and on the
annual reviews described in the Federal Register notices accompanying
the section 304(m) plans, EPA has essentially retained the four factor
approach for its annual reviews of existing effluent guidelines and
pretreatment standards. However, EPA has modified some of the four
factors and how they are applied in the annual reviews, as described
below.
In the initial screening analysis of existing effluent guidelines
and pretreatment standards, EPA gives the most weight to the first
factor--amount and toxicity of the pollutants in an industrial
category's discharge--in deciding which effluent guidelines to review
in more detail. This enables the Agency to set priorities for
rulemaking in order to achieve the greatest environmental and health
benefits. EPA's assessment of hazard also enables the Agency to
indirectly assess the effectiveness of pollution control technologies
and processes currently in use by an industrial category, based on the
amount and toxicity of its discharges. This also helps the Agency to
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 value of using a comparative risk approach to prioritize
environmental actions has been noted by others including EPA's Science
Advisory Board. See U.S. EPA (1993), A Guidebook to Comparing Risks and
Setting Environmental Priorities, EPA 230-B-93-003. EPA's use of the
first factor is similar to the use of a comparative risk analysis,
which is ``intended principally as a policy-development and broad
resource-allocation tool.'' See DCN 3576. To the extent possible with
the available data, EPA has tried to incorporate risk as a factor in
its reviews by using the approach to ranking point source categories
outlined in the draft Strategy. However, there are limitations in the
data and tools. In particular, EPA presently lacks on a national scale
the detailed exposure assessment data and tools necessary to complete a
risk assessment (e.g., analyze for each industrial facility the fate
and transport of discharged pollutants in an actual waterbody, exposure
pathways of pollutants to populations in a watershed, and uptake of the
discharged pollutants) (see DCN 3037). Consequently, EPA ranks point
source categories according to their discharges of toxic and non-
conventional pollutants to evaluate the relative hazard of these
discharges as one measure of potential for impacts to human health and
the environment.
EPA has also given added weight to the fourth factor,
implementation and efficiency considerations, in deciding which
effluent guidelines to review in more detail. 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 Oil and Gas Extraction (40 CFR
part 435) 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 or pretreatment
standards for revision where the pollutant source is already
efficiently and effectively controlled by other regulatory or non-
regulatory programs.
As previously noted, current data limitations make it difficult to
directly evaluate in the initial screening analysis the second factor--
the availability of technology to reduce the pollutants remaining in
the industrial category's wastewater. Similarly, EPA has not been able
to find a tool to enable it to consider the third factor--economic
achievability of candidate treatment technologies--in its initial
screening analysis. EPA anticipates that over time more information
related to the second and third factors will become available and may
permit the Agency to incorporate these two factors into the initial
screening analysis. For now, EPA assesses the second and third factors
in conducting its detailed reviews of those industries that rank
highest with respect to hazard. In its detailed reviews, EPA typically
examines: (1) Wastewater characteristics and pollutant sources; (2)
pollutants driving the total amount of toxic and non-conventional
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.
[[Page 76667]]
After consideration of public comment and further analyses based on
all four factors, EPA prioritizes the categories for effluent
guidelines rulemakings and publishes the rulemaking schedules in the
final biennial plan issued in August of every even-numbered year. By
using this multi-layered screening approach, the Agency concentrates
its resources on those point source categories with the highest
estimated hazard associated with toxic and non-conventional pollution
(based on best available data), while assigning a lower priority to
categories that the Agency believes are not good candidates for
effluent guidelines or pretreatment standards revisions at that time.
Dated: December 15, 2006.
Benjamin H. Grumbles,
Assistant Administrator for Water.
[FR Doc. E6-21825 Filed 12-20-06; 8:45 am]
BILLING CODE 6560-50-P