Draft Strategy for National Clean Water Industrial Regulations

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of availability of draft Strategy for National Clean Water Industrial Regulations.

SUMMARY:

Under the Clean Water Act, EPA establishes national technology-based regulations, termed “effluent guidelines,” to reduce pollutant discharges from industrial facilities to surface waters and publicly owned treatment works. Today, EPA is announcing the availability of its draft Strategy for National Clean Water Industrial Regulations. The draft Strategy describes a process to identify existing effluent guidelines that EPA should consider revising, and to identify any industrial categories for which the Agency should consider developing new effluent guidelines. EPA proposes to use this process to develop future Effluent Guidelines Program Plans, which EPA is required to publish under section 304(m) of the Clean Water Act every two years. The Agency welcomes comments on the draft Strategy and recommendations on industrial categories to be considered. In addition, EPA is announcing an Industrial Wastewater and Best Available Treatment Technologies Conference that it is co-sponsoring with Vanderbilt University.

DATES:

Submit comments on the draft Strategy by February 27, 2003. A public meeting will be held on Wednesday, January 15, 2003. In addition, the Industrial Wastewater and Best Available Treatment Technology Conference will be held February 26-28, 2003.

ADDRESSES:

Send comments to Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. OW-2002-0020. Comments may also be submitted electronically or through hand delivery/courier. Follow the detailed instruction as provided in B.

An informational meeting for interested stakeholders will be held in the EPA East Building, Room 1153, 1201 Constitution Avenue, NW., Washington, DC.

The Industrial Wastewater and Best Available Treatment Technologies Conference will be held at the Nashville Marriott at Vanderbilt University, at 2555 West End Avenue, Nashville, TN, 37203.

FOR FURTHER INFORMATION CONTACT:

Patricia Harrigan at (202) 566-1666 or harrigan.patricia@epa.gov, or Jan Matuszko at (202) 566-1035 or matuszko.jan@epa.gov.

SUPPLEMENTARY INFORMATION:

A. How Can I Get Copies of This Document and Other Related Information?

1. Docket. EPA has established an official public docket for this action under Docket ID No. OW-2002-0020. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center, EPA West, Room B102, 1301 Constitution Avenue, N.W., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the Water Docket is (202) 566-2426. To schedule an appointment to see docket materials, please call (202) 566-2426. The EPA public information regulation (40 CFR part 2) provides that a reasonable fee may be charged for copying.

2. Electronic Access. An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in docket identification number, OW-2002-0020.

Certain types of information will not be placed in the EPA Dockets. Information claimed as confidential business information (CBI) and other information whose disclosure is restricted by statute, which is not included in the official public docket, will not be available for public viewing in EPA's electronic public docket. EPA's policy is that copyrighted material will not be placed in EPA's electronic public docket, but will be available only in printed, paper form in the official public docket. Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facility identified in A.1.

For public commenters, it is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing in EPA's electronic public docket as EPA receives them and without change, unless the comment contains copyrighted material, CBI, or other information whose disclosure is restricted by statute. When EPA identifies a comment containing copyrighted material, EPA will provide a reference to that material in the version of the comment that is placed in EPA's electronic public docket. The entire printed comment, including the copyrighted material, will be available in the public docket.

Public comments submitted on computer disks that are mailed or delivered to the docket will be transferred to EPA's electronic public docket. Public comments that are mailed or delivered to the Docket will be scanned and placed in EPA's electronic public docket. Where practical, physical objects will be photographed, and the photograph will be placed in EPA's electronic public docket along with a brief description written by the docket staff.

B. How and To Whom Do I Submit Comments?

You may submit comments electronically, by mail, or through hand delivery/courier. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your comment. Please ensure that your comments are submitted within the specified comment period. Comments received after the close of the comment period will be marked “late.” EPA is not required to consider these late comments.

1. Electronically. If you submit an electronic comment as prescribed below, EPA recommends that you include your name, mailing address, and an e-mail address or other contact information in the body of your comment. Also include this contact information on the outside of any disk or CD ROM you submit, and in any cover letter accompanying the disk or CD ROM. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. EPA's policy is that EPA will not edit your comment, and any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. 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.

i. EPA Dockets. Your use of EPA's electronic public docket to submit comments to EPA electronically is EPA's preferred method for receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket,, and follow the online instructions for submitting comments. Once in the system, select “search,” and then key in Docket ID No. OW-2002-0020. The system is an “anonymous access” system, which means EPA will not know your identity, e-mail address, or other contact information unless you provide it in the body of your comment.

ii. E-mail. Comments may be sent by electronic mail (e-mail) to OW-docket@epa.gov, Attention Docket ID No. OW-2002-0020. In contrast to EPA's electronic public docket, EPA's e-mail system is not an “anonymous access” system. If you send an e-mail comment directly to the Docket without going through EPA's electronic public docket, EPA's e-mail system automatically captures your e-mail address. E-mail addresses that are automatically captured by EPA's e-mail system are included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket.

iii. Disk or CD ROM. You may submit comments on a disk or CD ROM that you mail to the mailing address identified in B.2. These electronic submissions will be accepted in WordPerfect or ASCII file format. Avoid the use of special characters and any form of encryption.

2. By Mail. Send an original and three copes of your comments and enclosures (including references) to: Water Docket, Environmental Protection Agency, Mailcode: 4101T, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, Attention Docket ID No. OW-2002-0020.

3. By Hand Delivery or Courier. Deliver your comments to: EPA Docket Center, EPA West, Room B102, 1301 Constitution Avenue, NW., Washington, DC, Attention Docket ID No. OW-2002-0020. Such deliveries are only accepted during the Docket's normal hours of operation as identified in A.1.

C. What Should I Consider as I Prepare My Comments for EPA?

You may find the following suggestions helpful for preparing your comments:

1. Explain your views as clearly as possible.

2. Describe any assumptions that you used.

3. Provide any technical information and/or data you used that support your views.

4. If you estimate potential burden or costs, explain how you arrived at your estimate.

5. Provide specific examples to illustrate your concerns.

6. Offer alternatives.

7. Make sure to submit your comments by the comment period deadline identified.

8. To ensure proper receipt by EPA, identify the appropriate docket identification number in the subject line on the first page of your response. It would also be helpful if you provided the name, date, and Federal Register citation related to your comments.

Outline of This Notice

I. Regulated Entities

II. Legal Authority

III. Background of the Effluent Guidelines Program

IV. A Strategy for National Clean Water Industrial Regulations

V. Solicitation of Stakeholder Recommendations

VI. Public Meeting

VII. Industrial Wastewater and Best Available Treatment Technologies Conference

I. Regulated Entities

Today's draft Strategy for National Clean Water Industrial Regulations does not contain regulatory requirements. It presents a proposed process that identifies industrial categories for possible development or revision of effluent limitations guidelines and standards (“effluent guidelines”). A list of the 55 currently regulated industries is provided in the draft Strategy at appendix 1, which can be found on EPA's Web site at http://www.epa.gov/guide/strategy.

II. Legal Authority

Today's document is published under the authority of section 301(d), 304(b), 304(g), 304(m), 306(b), 307(b) and 307(c) of the Clean Water Act (CWA), 33 U.S.C. 1311(d), 1314(b), 1314(g), 1314(m), 1316(b), 1317(b) & 1317(c).

III. Background of the Effluent Guidelines Program

The CWA directs EPA to promulgate effluent limitations guidelines and standards for categories or subcategories of industrial point sources that, for most pollutants, reflect the level of pollutant control attained by the best available technologies economically achievable. See CWA sections 301(b)(2), 304(b), 306, 307(b), and 307(c). For point sources that introduce pollutants directly into the Nation's waters (i.e., direct dischargers), the limitations promulgated by EPA are implemented through National Pollutant Discharge Elimination System (NPDES) permits. See CWA sections 301(a), 301(b), and 402. For sources that discharge to publicly owned treatment works (POTWs) (i.e., indirect dischargers), EPA promulgates pretreatment standards that apply directly to those sources and are enforced by POTWs, which are backed by State and Federal authorities. See CWA sections 307(b) and (c). EPA has issued effluent guidelines for more than 50 industrial categories.

Section 304(m) of the CWA requires EPA to publish a plan every two years that consists of three elements. First, under section 304(m)(1)(A), EPA is required to establish a schedule for the annual review and revision of existing effluent guidelines in accordance with section 304(b). Section 304(b) specifies factors EPA must consider when promulgating effluent limitations guidelines for direct dischargers and directs EPA to revise such regulations as appropriate. Second, under section 304(m)(1)(B), EPA must identify categories of sources discharging toxic or nonconventional pollutants for which EPA has not published effluent limitations guidelines under section 304(b)(2) or new source performance standards (NSPS) under section 306. Finally, under section 304(m)(1)(C), EPA must establish a schedule for the promulgation of effluent limitations guidelines under section 304(b)(2) and NSPS for the categories identified under the second element (i.e. subparagraph (B)) not later than three years after being identified in the section 304(m) plan. Section 304(m) does not apply to pretreatment standards for indirect dischargers, which EPA promulgates pursuant to sections 307(b) and 307(c) of the CWA.

On October 30, 1989, Natural Resources Defense Council, Inc., and Public Citizen, Inc., filed an action against EPA in which they alleged, among other things, that EPA had failed to comply with CWA section 304(m). The Plaintiffs and EPA agreed to a settlement of that action in a Consent Decree entered on January 31, 1992. The Consent Decree, as modified, established a schedule by which EPA would propose and take final action for eleven point source categories identified by name in the Decree, and for eight other point source categories identified only as new or revised rules, numbered 5 through 12. See Consent Decree pars. 2(a), 4(a), and 5(a). The Decree also established deadlines for EPA to complete studies of eleven point source categories. See Consent Decree, par. 3(a). The Consent Decree provides that the foregoing requirements shall be set forth in EPA's section 304(m) plans. See Consent Decree, pars. 3(a), 4(a), 5(a). The Consent Decree also provides that section 304(m) plans issued under the Decree that are consistent with its terms shall satisfy EPA's obligations under section 304(m) with respect to the publication of such plans. See Consent Decree, par. 7(b). The last date for EPA action under the Decree, as modified, is June 2004. EPA is currently on track to meet this last obligation, which will lead to the termination of the Consent Decree.

IV. A Strategy for National Clean Water Industrial Regulations

The prospective end of the Consent Decree in 2004 offers EPA and interested stakeholders an excellent opportunity to evaluate the effluent guidelines program and to consider how national industrial regulations can best achieve the Nation's clean water goals and the requirements of the Clean Water Act in the years ahead. The draft Strategy outlines a process for developing a biennial plan that is designed to meet both the statutory requirements in section 304(m) of the Clean Water Act and the water quality challenges of the 21st century. The draft Strategy aims to reduce risk to human health and the environment, using the most effective tools available. It is intended to ensure that EPA's process for setting priorities in its effluent guidelines program is transparent. EPA is looking for ways that its Strategy can help spur the development of innovative technologies, promote multi-media pollution prevention, and expand the use of market-based incentives to improve the quality of our nation's waters. The draft Strategy is posted for review on EPA's web site at http://www.epa.gov/guide/plan.html. Section V of this notice solicits stakeholder comment on several key features of the strategy as well as the role of effluent guidelines in the national clean water program.

The draft Strategy was initially discussed in the notice for the Effluent Guidelines Program Plan for 2002/2003. See 67 FR 55012, 55013-14 (Aug. 27, 2002) (final plan); and 67 FR 41418-9, (June 18, 2002) (proposed plan). Several commenters supported EPA's goal to develop a strategy for future planning of the effluent guidelines program, and encouraged EPA to engage a broad range of stakeholders in the planning process.

V. Solicitation of Stakeholder Recommendations

EPA requests comments about several specific issues discussed in the Strategy.

Key Factors for Evaluating Existing Effluent Guidelines: EPA identified four major factors, derived from sections 301(b)(2) and 304(b) of the CWA, that could lead EPA to conclude that a revision of an existing effluent guideline would be appropriate: (1) The extent to which the industry category is discharging pollutants that pose a risk to human health or the environment; (2) the identification of an applicable and demonstrated technology, process change, or pollution prevention approach that would substantially reduce the remaining risk; (3) the cost, performance, and affordability of the technology, process change, or pollution prevention approach that would substantially reduce that risk; and (4) implementation and efficiency considerations, such as whether revising a guideline is the most effective approach for reducing the risk. In addition, section 304(b) authorizes EPA to consider other factors as the Administrator deems appropriate. EPA requests comments on its proposed use of these factors, and invites the public to suggest additional or different factors.

The Agency is also interested to receive comments on whether each of the four factors identified above should be ranked, and if so, whether different weights should be applied to each. EPA also requests suggestions as to the information the Agency should use to prioritize industrial categories that pass both the primary and secondary screening reviews described in the draft Strategy.

Key Factors for Developing New Effluent Guidelines: EPA identified four major factors that could lead EPA to conclude that new national effluent guidelines regulations would be necessary and appropriate for industrial categories. These factors are identical to the factors discussed above with respect to the revision of existing effluent guidelines, and are derived from the same statutory bases. (The main difference is than an industry category with no existing guideline in place may have greater variation in current discharges and pollutant reduction technologies in place. This depends on what technology-based limits permit writers have established using best professional judgment and what limits they have established to protect water quality.) These factors reflect Congress' expectation that EPA will address “significant amounts” of toxic pollutant discharges through national technology-based regulations. S. Rep. No. 50, 99th Cong., 1st Sess. 24-25 (1985). EPA requests comments on its proposed use of these factors and invites the public to identify other or different factors for EPA's consideration.

The Agency is also interested to receive comments on whether each of these factors should be ranked, and if so, whether different weights should be applied to each. EPA also requests suggestions as to the information the Agency should use to prioritize industrial categories that pass both the primary and secondary screening reviews described in the draft Strategy.

Sources of Water Quality Impairments: An impaired water is one that does not achieve the water quality standards adopted by a State, Tribe, or EPA under CWA section 303(c). Building on ongoing work by EPA, States, Tribes, and others, the Agency is working to identify links between industrial sources of pollutants with pollutants identified as the causes of impairments in impaired waters. This effort links the categories of facilities discharging pollutants as identified in Agency's Permit Compliance System (PCS) database with types of impairments of water bodies identified using the U.S. Geological Survey's National Hydrography Dataset (NHD) and State and Tribal reported data from the reports generated under CWA sections 303(d) and 305(b). (Section 303(d) requires States to develop lists of waterbodies for which technology-based limitations and other requirements are not sufficient to ensure attainment of water quality standards. Section 305(b) requires States to report to EPA every other year on the quality of their waters.) EPA requests suggestions on other sources of relevant information, particularly data relating to facilities that discharge to publicly owned treatment works (POTWs).

Voluntary Loading Reductions: EPA is considering incentives for industrial categories to reduce pollutant loadings through voluntary programs. For example, EPA might determine to not develop new or revised effluent guidelines for source categories that demonstrate continual or substantial reduction of pollutants through voluntary effluent reductions. Voluntary efforts should be encouraged and rewarded, so EPA is considering whether source categories that have accomplished voluntary pollutant discharge reductions should be given a lower priority for new or revised effluent guidelines.

EPA is also considering whether to indicate a quantitative voluntary reduction goal that source categories seeking a deferral of consideration for new or revised guidelines should try to achieve. EPA is considering a goal, suggested by a stakeholder, of a 10 percent reduction in total load, or in toxic-equivalent load over a five-year period (the standard permit term). EPA emphasizes that the goal would not be binding on either the Agency or the industry; EPA would retain the discretion to decide whether to develop an effluent guideline. EPA would consider voluntary load reductions on an industry-by-industry basis in making its planning decisions (and may make decisions irrespective of the general, non-binding goal). The Agency requests comment on this entire issue. EPA also invites comment on whether a different general goal, such as a 25 percent reduction in total or toxic-equivalent load, would be more appropriate.

EPA proposes to use information in the PCS system to identify categories for which loadings have decreased over the past 5 years, but requests suggestions on alternative sources of this information. EPA also invites comment on how it might assess voluntary pollutant reductions in industrial categories with increased production over five years. Finally, EPA invites comment on ways to evaluate claims of decreases in water loadings of toxicity relative to possible increases in release of these emissions to other environmental media, for example volatilization to air or land disposal of sludge.

Technology Innovation, Market-based Incentives, and Multi-media Pollutant Reduction: In addition to the above discussion of voluntary loading reductions, EPA seeks comment on others ways the Agency might structure the effluent guidelines program to encourage and reward technology innovation. EPA invites stakeholders to suggest industry categories for which development or revision of an effluent guideline may provide an opportunity for multi-media pollutant reduction. EPA also seeks comment on the role of market-based incentives, including pollutant trading, in the effluent guidelines program.

In addition, EPA encourages comments on the extent to which the Agency should consider multi-media pollutant reduction opportunities in deciding which guidelines to develop or revise. For example, should the Agency assign greater weight to revising a guideline that has the opportunity to reduce the loading of 100 million pounds of nutrients into surface waters impaired by nutrient pollution, or one that might reduce nutrient loading by 80 million pounds but also reduce noxious odors and emissions of greenhouse gases?

Level of Effort Devoted to Effluent Guidelines: Since Congress passed the 1972 Clean Water Act, EPA has promulgated effluent guidelines that address over 50 industry categories. These regulations apply to between 35,000 and 45,000 facilities that discharge directly to the nation's waters, as well as another 12,000 facilities that discharge into publicly owned treatment works. These regulations are responsible for preventing the discharge of almost 700 billion pounds of pollutants each year.

In addition to the technology-based effluent guidelines program, EPA and the States implement a wide range of water-quality based programs also designed to protect and restore the Nation's waters. For example, the water quality standards adopted by all States, Territories and 20 authorized Tribes are the regulatory and scientific foundation for the Nation's water quality-based programs. Water quality standards are used to assess impairments in U.S. waters, to establish targets and load reductions needed in impaired waters through total maximum daily loads (TMDLs), and to set limits on pollutants through enforceable NPDES permits where technology-based limits are insufficient to protect water quality.

Under EPA and State permit programs, industrial discharge restrictions—in the form of technology-based and water-quality based effluent limitations—have controlled over 48,000 individual industrial facilities through the issuance of individual NPDES permits, and controlled thousands more through general permits. Fish are coming back, habitats are recovering, and many miles of formerly contaminated beaches are now safe for swimmers. However, we have not achieved water quality objectives in many water bodies. Many of the remaining pollutants come from sources that are not related to industrial discharges, such as non-point source runoff from agricultural lands, stormwater flows from cities, seepage into ground water from nonpoint sources, and loss of critical habitats such as wetlands.

One facet of EPA's overall approach to resolving the remaining water quality problems is the continued implementation of the national effluent guidelines program to address water quality problems associated with industrial dischargers. As EPA moves forward to address the remaining water quality problems, EPA invites comment on whether it should devote the same, less, or greater resources to the effluent guidelines program as it has in the past.

VI. Public Meeting

An important first step in the planning process is to consult with authorized States and Tribes, pretreatment control authorities, and professional associations to obtain their recommendations on revising existing effluent guidelines and identifying industries for new guidelines. These stakeholders can help identify water quality concerns related to industrial categories as well as changes in industries which affect the administration and effectiveness of existing regulations. EPA recognizes that there are other stakeholders who also may have concerns or data indicating the need for new or revised regulations, or revisions to EPA's draft Strategy.

Therefore, the Agency will hold a public meeting on Wednesday, January 15 from 9 a.m. to noon, to discuss the goals and the elements of the draft Strategy. This informational meeting will be held in the EPA East Building, Room 1153, 1201 Constitution Avenue, NW., Washington, DC. No registration is required for this meeting. If you need special accommodations at this meeting, please contact Pat Harrigan at (202) 566-1666 or harrigan.patricia@epa.gov at least five business days before the meeting so that appropriate arrangements can be made.

For security reasons, we request that you bring photo identification with you to the meeting. Also, if you let us know in advance of your plans to attend, it will expedite the process of signing in. Seating will be provided on a first-come, first-served basis. Please note that parking is very limited in downtown Washington, and use of public transit is recommended. The EPA Headquarters complex is located near the Federal Triangle Metro station. Upon exiting the Metro station, walk east to 12th Street. On 12th Street, walk south to Constitution Avenue. At the corner, turn right onto Constitution Avenue and proceed to the EPA East Building entrance.

During the meeting, EPA will present an overview of the draft Strategy, including the factors the Agency expects to consider and the cycle of steps involved in its application. EPA will also allow time for questions and answers during these sessions. The Agency also encourages participants to identify and provide supporting data and/or rationales on existing effluent guidelines that EPA should consider revising, or on any industrial categories for which the Agency should consider developing new effluent guidelines. This meeting is not a public hearing for the purpose of obtaining comment on the draft Strategy. EPA will not generate a transcript of the meeting. The public may submit written comments as described in the “How to Submit Comments” section above.

VII. Industrial Wastewater and Best Available Treatment Technologies Conference

EPA has established effluent limitation guidelines and pretreatment standards for more than 50 industries. (A list of the currently regulated industries is provided in the draft Strategy at appendix 1, which can be found on EPA's Web site at http://www.epa.gov/guide/strategy .) Over the last 30 years, these industries have accumulated much expertise and experience in wastewater treatment process design and operation to comply with these regulations. Vanderbilt University and the U.S. EPA are co-sponsoring a technical conference to provide a forum to share experiences with process design and regulatory compliance.

Representatives of academia, government, and industry are invited to convene to examine and discuss industry trends and technology advances as they affect regulatory compliance and sustainable growth. Participants will have the opportunity to both provide and obtain information on state of the art techniques for addressing their water pollution control activities. These may include improvements to traditional wastewater treatment processes as well as process changes and best management practices that lead to reductions in pollutant generation.

The BAT conference will be held from February 26 through February 28, 2003 at the Nashville Marriott at Vanderbilt University, located at 2555 West End Avenue, Nashville, Tennessee, 37203. Registration is required. More information, including registration and specific topics, is available at http://frontweb.vuse.vanderbilt.edu/bat/ , or contact Jan Matuszko at (202) 566-1035 or e-mail her at matuszko.jan@epa.gov.