Effluent Guidelines Plan

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of effluent guidelines plan.

SUMMARY:

Today's notice describes the Agency's ongoing effluent guidelines development efforts and announces EPA's plan for developing new and revised effluent guidelines, which regulate industrial discharges to surface Water Act requires EPA to publish an Effluent Guidelines Plan every two years. The Agency published a proposed plan on June 16, 2000, and public comments on the proposed plan are discussed in today's notice.

EFFECTIVE DATE:

October 2, 2000.

ADDRESSES:

The public record for this notice is available for review in the EPA Water Docket, Room EB 57 East Tower, 401 M St., S.W., Washington, D.C. from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. Please call (202) 260-3027 to schedule an appointment to see Docket materials. The EPA public information regulation (40 CFR part 2) provides that a reasonable fee may be charged for copying.

FOR FURTHER INFORMATION CONTACT:

James Lund, Engineering and Analysis Division (4303); telephone (202) 260-7811.

SUPPLEMENTARY INFORMATION:

Outline of This Notice

I. Regulated Entities

II. Legal Authority

III. Introduction

IV. Effluent Guidelines Program Background

V. Effluent Guideline Regulations Promulgated Since the Proposed Plan

VI. Today's Effluent Guidelines Plan

A. Rulemaking Activities Started in 1999

B. Effluent Guidelines Currently Under Development

C. Summary of Changes from the Proposed Plan

VII. Future Direction of the Effluent Guidelines Program

A. Ways to Identify Industries for Future Effluent Guidelines Development

1. Targeting the Most Significant Environmental Problems

2. Targeting Industry Sectors That May Be Candidates for Pollution Prevention and Multi-Media Rule Making

3. Targeting Sources That Are Difficult to Permit

B. Involving Stakeholders in the Year 2002 Section 304(m) Plan

VIII. Public Comments Received on the June 16, 2000 Notice

IX. Economic Impact Assessment; Executive Order 12866

I. Regulated Entities

Today's plan does not contain regulatory requirements. Rather, it identifies industrial categories that EPA has already chosen for new or revised effluent guidelines regulation and sets forth the schedules for those rulemaking efforts. Entities that could be affected by the forthcoming effluent limitations guidelines and standards identified in this plan are:

II. Legal Authority

Today's notice is published under the authority of section 304(m) of the Clean Water Act, 33 U.S.C. 1314(m).

III. Introduction

On June 16, 2000, EPA published a notice containing the Agency's proposed section 304(m) plan for 2000 (65 FR 37783). In that notice, EPA also outlined a preliminary framework by which EPA, working with its State partners, the regulated community, and concerned citizens, can build upon the successes of its effluent guidelines program for the next decade and beyond.

Today's notice announces the Agency's final section 304(m) plan for 2000 and discusses comments received both on the proposed section 304(m) plan for 2000 and on the framework for developing future 304(m) plans.

IV. Effluent Guidelines Program Background

With the 1972 passage of the landmark Clean Water Act (CWA), EPA was charged with developing effluent limitations guidelines and standards that would provide a minimum, technology-based threshold for ongoing improvements in effluent quality. The legislative history of CWA section 304(b), which is the heart of the effluent guidelines program, describes the need to press toward higher levels of control through research and development of new processes, modifications, replacement of obsolete plans and processes, and other improvements in technology, taking into account the cost of controls.

The Clean Water Act directs EPA to promulgate effluent limitations guidelines and standards that, for most pollutants, reflect the level of pollutant control achievable by the best available technologies economically achievable for categories or subcategories of industrial point sources. 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 and standards promulgated by EPA are implemented in National Pollutant Discharge Elimination System (NPDES) permits. See CWA sections 301(a), 301(b), and 402. For sources that discharge to POTWs (i.e., indirect dischargers), EPA promulgates pretreatment standards that apply directly to those sources and are enforced by POTWs backed by State and Federal authorities. See CWA sections 307(b) and (c).

To date, EPA has promulgated effluent limitations guidelines for more than 50 industrial categories affecting approximately 30,000 facilities that discharge directly to the Nation's waters. If EPA includes pretreatment controls for sources that discharge into publicly owned treatment works (POTWs), EPA's effluent limitations guidelines and standards regulate the effluent from approximately 45,000 facilities. These regulations accomplish water quality improvements through affordable, cost-effective controls. By requiring cleaner industrial operations, these regulations help to ensure that the economic advances that result from industrial expansion are compatible with a clean environment and an improved quality of life.

Section 304(m) 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) applies to effluent limitations guidelines for direct dischargers and requires 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 304(b)(2) or new source performance standards (NSPS) under section 306. Finally, under 304(m)(1)(C), EPA must establish a schedule for the promulgation of effluent limitations guidelines under 304(b)(2) and NSPS for the categories identified under subparagraph (B) not later than three years after being identified in the 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 Clean Water Act.

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). Plaintiffs and EPA agreed to a settlement of that action in a consent decree entered on January 31, 1992. The consent decree, which has been modified several times, established a schedule by which EPA is to propose and take final action for eleven point source categories identified by name in the decree, see Consent Decree, pars. 2(a) and 4(a), and for eight other point source categories identified only as new or revised rules, numbered 5 through 12, see Consent Decree par. 5(a).

The last date for EPA action under the decree, as modified, is June 2004. The decree also established deadlines for EPA to complete studies of eight identified and three unidentified point source categories. See Consent Decree, par. 3(a). The decree further 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). Under the decree, EPA is directed to use the studies as well as other available information to select the eight point source categories for which EPA has agreed to issue new or revised rules under paragraph 5(a). Finally, the consent decree provides that section 304(m) plans issued subsequent to 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 decree also required EPA to establish an Effluent Guidelines Task Force to make recommendations for improvements to the effluent guidelines program. See Consent Decree, par. 8. EPA did so in 1992. The Task Force, which was created to offer advice to the EPA Administrator on a process for expediting the promulgation of effluent guidelines, among other topics, consists of members appointed by the Agency from industry, citizen groups, state and local governments, the academic and scientific communities, and EPA's Office of Research and Development. It is a subcommittee of the National Advisory Committee for Environmental Policy and Technology, which is chartered under the Federal Advisory Committee Act, 5 U.S.C. App. 2. The Task Force has held several public meetings each year since 1992 and has submitted recommendations to the EPA Administrator.

V. Effluent Guideline Regulations Promulgated Since the Proposed Plan

Since the June 16, 2000 publication of the proposed plan, EPA published on August 14, 2000 a final rule for the Transportation Equipment Cleaning Industry (65 FR 49666).

VI. Today's Effluent Guidelines Plan

A. Rulemaking Activities Started in 1999

EPA estimates that effluent guidelines are responsible for preventing the discharge of more than a billion pounds of toxic pollutants each year. While EPA is very proud of this accomplishment, we recognize that water quality problems have not been eliminated. Despite successes in reducing water pollution, approximately 40 percent of the waters assessed by States, Tribes, and other jurisdictions do not meet State or Tribal water quality standards. As reported by States, Tribes, and other jurisdictions in their 1998 section 305(b) water quality assessments, approximately 291,000 miles of rivers and streams and 7.9 million acres of lakes are impaired. In addition, States identified more than 20,000 impaired waterbodies in their 1998 section 303(d) lists of impaired waters. The overwhelming majority of Americans live within ten miles of a polluted waterbody. The pollutants most frequently identified as causing water impairment are siltation, excess nutrients, and harmful pathogens. Several effluent guidelines are currently underway to help address siltation and nutrient problems, and, to a lesser extent, pathogens. In the proposed plan, EPA announced efforts that were initiated in late 1999 to develop new or revised regulations for the meat products and aquatic animal production industries, both sources of nutrients to this Nation's waters.

EPA received no comments on the Agency's selection of the meat products industry. However, EPA received many comments on its decision to examine and develop effluent guidelines for the aquatic animal production industry. (EPA had originally used the term Aquaculture to describe this industry. However, EPA has since recognized that the term Aquatic Animal Production better reflects the operations that EPA expects will be subject to the forthcoming effluent guidelines.) Some of the comments argued against EPA's decision to regulate aquatic animal production; others supported EPA's decision. Commenters on both sides of the aquatic animal production regulation issue offered to work with EPA in the development of any aquatic animal production effluent guidelines. EPA is discussing the tasks and information necessary to develop an aquatic animal production rule with the Joint Subcommittee on Aquaculture's (JSA's) Aquaculture Effluents Task Force, which consists of representatives from trade associations, academia, federal and state agencies, professional socities, and non-governmental organizations. EPA welcomes the assistance of all interested parties in the development of the guidelines and will provide a number of opportunities for further involvement as we proceed with the studies necessary to develop the regulation.

The aquatic animal production industry was first studied by EPA in 1974 and has operated under guidance issued in 1977. EPA chose to issue guidance in the late 1970s rather than promulgate a regulation at that time in order to focus resources on other industries that EPA regarded as higher priorities for the regulation of toxic pollutants.

As in the 1998 304(m) plan, EPA is beginning new efforts to address classes of pollutants that continue to cause water quality impairments, specifically nutrients and organic pollutants. In their 1998 305(b) reports, 13 States identified aquaculture operations as sources contributing to water quality impairments, due largely to nutrients and organic enrichment (low dissolved oxygen impacts). EPA's guidance was insufficient for many State permitting efforts; it reflected neither the growth in the industry, nor the significant technological advances that have been made. Several States expressed interest in more current technical assistance and support, including a detailed analysis of the industry, its processes, controls, and financial ability to improve its environmental performance. EPA's decision to begin developing effluent guidelines for this industry reflects the Agency's commitment to launch the scientific study, data collection, and public involvement necessary to make that happen.

All of the comments which EPA received concerning aquatic animal production, along with EPA's responses to the comments, are in the public record for today's notice. EPA will also forward the comments to the record for the aquatic animal production rule and consider them during that rule making.

We look forward to working with the U.S. Department of Agriculture and all other interested parties in obtaining the most accurate, up-to-date information on which to base EPA's rulemaking decisions.

B. Effluent Guidelines Currently Under Development

The status of the regulations for new or revised effluent guidelines are set forth in Table 1.

C. Summary of Changes from the Proposed Plan

Today's Effluent Guidelines Plan is substantively the same as the proposed plan. However, the Transportation Equipment Cleaning Effluent Guideline, shown in the proposed plan as “currently under development” is now presented in today's plan as a regulation that was promulgated since the proposed plan. In addition, some clarifications were made in today's plan in response to comments received on the proposed plan. In particular, clarifications were made in the discussion of the selection of aquatic animal production as one of the industries selected for regulation. More information about the public comments submitted on the June 16, 2000 notice is provided below in Section VIII.

VII. Future Direction of the Effluent Guidelines Program

The effluent guidelines program is one of EPA's most successful environmental protection programs. EPA develops performance standards based on demonstrated technologies that are affordable for the regulated industry as a whole. Supported by sound data and analysis, the effluent guidelines program strives for the greatest pollutant reductions that can be economically achieved within the regulated community. In setting performance standards, EPA considers pollution prevention approaches in addition to more traditional treatment technologies, with the result that the air and soil also benefit from wastewater regulations.

Moreover, this program gives the regulated community considerable flexibility in achieving the performance standards. Thus, dischargers are encouraged to develop less expensive alternatives to comply with the performance standards than the model technologies or processes identified by the Agency. Invariably, the more cost-effective technologies and processes often become the industry norm—in this way yielding even greater environmental results at lower cost than contemplated by the regulation itself.

In the future, the effluent guidelines program will evolve to face new challenges. New or revised effluent guidelines can help solve the serious water quality problems still remaining in the Nation's waterways, which are most frequently caused by excess nutrients, sedimentation, pathogens, metals, and toxic pollutants. Also, more stringent levels of pollution reduction are now economically achievable in some industrial categories or subcategories due to the emergence of new or innovative pollution control technologies. To help plan for the future, EPA plans to use the section 304(m) planning process established by the Clean Water Act to expand its dialogue with the interested public regarding how to use the effluent guidelines program to achieve the greatest environmental benefits.

As discussed above, section 304(m)(1) requires EPA every two years to identify industry categories for new or revised regulations and to establish a schedule for final action on those rules. Consistent with the consent decree pertaining to section 304(m), EPA discharged this duty in December 1999 when it identified Aquatic Animal Production and Meat Products as categories for new effluent guidelines and established schedules for those rules. The 2000 section 304(m) plan reports that action. Now, EPA is beginning the process for developing its section 304(m) plan for the year 2002.

In the June 16, 2000 notice, EPA proposed a framework for developing future 304(m) plans. That proposed framework included (1) ways to identify industries for future effluent guidelines development and (2) a strategy for involving stakeholders in the development of the next 304(m) plan.

A. Ways To Identify Industries for Future Effluent Guidelines Development

In the June 16, 2000 notice, EPA stated that criteria for selecting industrial categories for new or revised effluent guidelines will be critical to our 2002 section 304(m) plan development. In that notice, EPA proposed selecting industries for effluent guideline development by targeting the most significant environmental problems, by targeting industry sectors that may be candidates for pollution prevention and multi-media rule making, and by targeting industries that are difficult to permit.

1. Targeting the Most Significant Environmental Problems

In the June 16, 2000 notice, EPA identified three currently available sources of information that EPA might consider using in the future to help determine the most significant environmental problems and, thus, possible industrial categories for further examination. (These data sources would not be used as the basis for any proposed regulations.)

First, EPA's Office of Pollution Prevention and Toxics has developed a risk-related model called the “Risk-Screening Environmental Indicators” (RSEI). This model can be used to perform screening-level analyses of the potential risk-related, chronic human health impacts associated with releases reported in the Toxic Release Inventory.

Second, pursuant to section 303(d) of the Clean Water Act and EPA's implementing regulations, States must identify waters where technology-based effluent limitations and other pollution control requirements are not stringent enough to implement applicable water quality standards for such waters. These section 303(d) lists of waters identify the pollutants and, where possible, the source categories that may be responsible for the water quality impairments.

Third, pursuant to section 305(b) of the Clean Water Act, States, Tribes, and other jurisdictions report on the quality of their waters every two years, including information on pollutants and sources of pollution.

As stated in the June 16, 2000 notice, EPA notes that there is no overlap between the categories ranking highest using the RSEI risk-related model and the categories listed by the States as contributing to siltation, nutrients, and pathogens. This finding is not particularly surprising because the assessment factors differ, e.g., chronic human health impacts in the case of the RSEI model, in contrast to emphases on aquatic ecosystem health as well as other designated use impairments, in the case of the section 303(d) lists and 305(b) reports.

EPA received comments on the use of these data sources identified in the June 16, 2000 notice. The comments pointed out the limitations of these potential sources of information. EPA is aware of the limitations of each of these sources of data, including—in the case of 303(d) lists and 305(b) reports—the uncertainty in some instances whether the impairments cited are due to nonpoint sources or point sources, as well as the broad range of information used by the States in making these assessments (each with varying degrees of data quality). EPA is also aware that, despite significant improvements to the Risk-Screening Environmental Indicators model in the past three years, we must exercise caution in using it for industry selection purposes. EPA plans to continue the current practice of evaluating and using other readily-available information to corroborate the findings of these data sources in determining which industrial categories warrant further examination.

EPA also received the comment that only States, EPA, or the regulated entities should be authorized to submit effluent samples in the effluent guidelines process. As a general principle, EPA notes that it is open to considering any data that are relevant and reliable and that meet the Agency's rigorous quality assurance and quality control standards. EPA also understands that single-source data should sometimes not be used absent other corroborating information.

EPA will consider all of these comments, in consultation with interested stakeholders, as it proceeds with its section 304(m) planning process described in Section VII.B. below. In addition, although EPA did not receive any comments identifying any other data sources that might assist in targeting the most significant environmental problems, we remain open to suggestions of data sources that may be of better quality for our purposes.

2. Targeting Industry Sectors That May Be Candidates for Pollution Prevention and Multi-Media Rule Making

As stated in the June 16, 2000 notice, through its sector-based activities, such as the Common Sense Initiative, EPA recognizes that addressing all environmental concerns from an industry sector concurrently can improve pollution prevention, resulting in better environmental results at lower cost than addressing the environmental releases one media at a time. EPA's Task Force on Coordinated Rulemaking, which was created to identify and initiate sector-based rule makings that would benefit from a cross-Agency, multi-program coordinated effort, is one attempt to capitalize on this concept. The Task Force on Coordinated Rulemaking is one source of information on possible sectors for future effluent guidelines development.

Another source is EPA's Integrated Urban Strategy of the National Air Toxics Program. Although this strategy presents a framework for reducing air toxics (i.e., hazardous air pollutants) in urban areas, many of the sources that have been identified contribute pollutants to the water environment as well. The link between wastewater treatment and air emissions, like the link between air emission treatment and wastewater, may point to a coordinated approach for addressing the highest risk sources. Further coordination in this area is pending the results of the National Air Quality Assessment that is currently underway.

One commenter, in support of determining whether efforts being undertaken in other EPA offices might influence effluent guidelines, suggested that EPA consider the findings of the Surface Impoundment Study being conducted by the Office of Solid Waste. This study, when completed, may indicate a need to amend both solid waste and water regulations. Given the inter-related nature of pollutant control by the various media offices under various enabling statutes, resolving environmental problems often requires adjustments of several regulations concurrently. EPA recognizes that changes are sometimes needed, not only to assure effectiveness, but also to avoid conflicting restrictions between programs.

In a similar vein, EPA is currently examining potential risks from Class V injection wells used by a wide variety of commercial and industrial sources. Although not regulated by effluent guidelines, EPA is beginning to consider how new effluent guidelines may impact the use of Class V injection wells by the regulated industry. EPA hopes that by sharing information between these programs and coordinating these efforts, environmental problems can be solved, not shifted.

3. Targeting Sources That Are Difficult To Permit

As noted in the June 16, 2000 notice, effluent limitations guidelines establish nationally applicable standards that are implemented through NPDES discharge permits issued by authorized States and Tribes or EPA. In the absence of these regulations, permit writers must determine technology-based limitations using their best professional judgment. Our State and Tribal regulatory partners are some of the best sources of information about the adequacy and coverage of existing effluent limitations guidelines. States and Tribes helped to identify many of the sectors for which effluent guidelines are currently being developed or revised.

For example, one comment received on the June 16 notice suggested that EPA revisit the Metal Molding and Casting Effluent Guideline in the near future because of certain current problems in regulating this industrial category. The Agency is considering this comment and will use this industry as a specific example for discussion in the upcoming stakeholder process.

B. Involving Stakeholders in the Year 2002 Section 304(m) Plan

As presented in the June 16, 2000 notice, EPA also proposed an approach for involving stakeholders in the development of the 2002 section 304(m) plan.

As EPA looks forward to the 2002 section 304(m) plan, industry selection criteria will be critical. To help prepare the plan, EPA plans to engage all interested parties in a dialogue. EPA is interested in discussing not only the factors that would indicate which industrial categories would provide the greatest environmental benefit if subject to new or revised effluent guidelines but also the sources of data by which to evaluate those factors.

EPA plans to seek the views of as many interested persons as possible, with particular emphasis on individuals and organizations associated with industry, environmental interest groups, and State, Tribal, and local governments. EPA will reach out to interested stakeholders primarily by attending and, where possible, participating in meetings and conferences sponsored by members of those communities, as well as through its Web site (http://www.epa.gov/ost) and less formal meetings.

The Agency has already launched this dialogue through discussions with the Effluent Guidelines Task Force, whose membership reflects a variety of stakeholder viewpoints. Members of the Effluent Guidelines Task Force have also agreed to assist EPA in this stakeholder outreach effort.

At this point, EPA envisions that this stakeholder outreach will culminate in a one or two day highly focused national meeting of interested stakeholders this winter. In addition to a discussion of factors for industry selection criteria and information sources by which to evaluate those factors, EPA also seeks a discussion on whether EPA's procedures for implementing the requirements of section 304(m), including the process for selecting industrial categories for new or revised effluent guidelines, should be codified in federal regulations. Relevant to that discussion will be comments EPA received on the June 16, 2000 notice that suggested that not only are such regulations not warranted but also they could be counter-productive to efficient Agency management of its resources and could restrict the Agency's ability to consider other relevant information in the selection process. EPA plans to discuss this further with as many stakeholders as possible. The Effluent Guidelines Task Force has indicated its willingness to work with EPA in conducting stakeholder outreach and refining our 304(m) planning process.

Finally, as noted in the June 16, 2000 notice, EPA plans to issue a final section 304(m) plan in February 2002. EPA will use the outcome of the stakeholder outreach effort in developing this plan.

VIII. Public Comments Received on the June 16, 2000 Notice

EPA accepted public comments on the Proposed Plan through July 17, 2000. The Agency received comments from a variety of commenters including industry and agriculture, environmental groups, States, academia, and engineering consulting firms. Many of the comments received have been discussed in the text of today's notice. The administrative record for today's notice includes a complete set of all of the comments submitted as well as the Agency's responses.

IX. Economic Impact Assessment; Executive Order 12866

Today's notice announces a plan for the review and revision of existing effluent guidelines and for the selection of priority industries for new regulations. This notice is not a “rule” subject to 5 U.S.C. 553 and does not establish any requirements; therefore, EPA has not prepared an economic impact assessment. EPA will provide economic impact analyses, regulatory flexibility analyses, or regulatory impact assessments, as appropriate, for all of the future effluent guideline rule makings developed by the Agency.

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant” and, therefore, subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities;

(2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this plan is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.