Effluent Guidelines Program Plan for 2002/2003

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of Effluent Guidelines Program Plan.

SUMMARY:

Today's document announces EPA's Effluent Guidelines Program Plan for 2002/2003, which describes the Agency's ongoing effluent guidelines development efforts. Under the Clean Water Act (CWA), EPA establishes national regulations, termed “effluent guidelines,” to reduce pollutant discharges from industrial facilities to surface waters and publicly owned treatment works (POTWs). The Agency published a proposed plan on June 18, 2002 (67 FR 41417), and public comments on the proposed plan are discussed in today's notice. In addition, to prepare for the Effluent Guidelines Program Plan to be published in 2004 (for years 2004/2005), the Agency invites the public to identify existing effluent guidelines that EPA should consider revising and to identify any industrial categories for which effluent guidelines should be promulgated.

EFFECTIVE DATE:

September 26, 2002.

ADDRESSES:

The public record for this notice has been established under docket number W-01-12. It is available for review in the EPA Water Docket, which is located in room B135 EPA West, 1301 Constitution Avenue, N.W. The docket is open from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. 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. Recommendations on possible effluent guideline revisions or new categories can be made to Patricia Harrigan by e-mail at harrigan.patricia@epa.gov, or Jan Matuszko by e-mail at matuszko.jan@epa.gov.

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:

Outline of this Notice

I. Regulated Entities

II. Legal Authority

III. Effluent Guidelines Program Background

IV. Effluent Guidelines Program Plan for 2002/2003

V. Future of the Effluent Guidelines Program

A. A Strategy for National Clean Water Industrial Regulations

B. Solicitation of Stakeholder Recommendations

VI. Public Comments

I. Regulated Entities

Today's Effluent Guidelines Program Plan for 2002/2003 does not contain regulatory requirements. It identifies industrial categories for which EPA expects to develop or revise effluent limitations guidelines and standards (“effluent guidelines”), and sets forth the schedules for those rulemakings. Entities that could be affected by regulations developed under the schedules set forth in this Plan are shown in Table 1 below. One commenter stated that the Aquatic Animal Production effluent guideline may also affect federal- and state-run fish hatchery facilities. EPA agrees with the comment and the table has been updated to reflect this potential impact.

II. Legal Authority

Today's document is published under the authority of section 304(m) of the CWA, 33 U.S.C. 1314(m).

III. Effluent Guidelines Program Background

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 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).

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 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 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 will propose and take final action for eleven point source categories identified by name in the Decree, see Consent 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 eight identified and three unidentified point source categories. See Consent Decree, par. 3(a).

The last date for EPA action under the Decree, as modified, is June 2004. The 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 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).

IV. Effluent Guidelines Program Plan for 2002/2003

Today's Plan describes EPA's current effluent guidelines rulemaking activities. Table 2 identifies the new or revised effluent guidelines currently under development, and the schedules for proposal and final action.

In previous Effluent Guideline Program Plans, EPA indicated its intention to take final action on its 1993 proposal to revise effluent guidelines for eight subcategories of the pulp, paper, and paperboard industry (Subparts C and F through L), referred to as Phase II. At this time, however, EPA is not planning to revise effluent guidelines for these subcategories for a variety of reasons. It appears that more stringent conventional pollutant limitations for these subcategories would not pass the Best Conventional Pollutant Control Technology “cost-reasonableness” test, which is explained at 51 FR 24974 (July 1986) for at least five and possibly up to seven of the eight subcategories, depending on which option is selected. In addition, EPA does not see the need at this time to promulgate national categorical best management practices for these subcategories. EPA expects that permitting authorities will continue to impose best management practices on a case-by-case basis, as appropriate, under 40 CFR 122.44(k).

As with all currently regulated industries, EPA will make the decision to move forward with data collection and analysis for all of these subparts (including possible guidelines revisions) following a broader priority-setting process the Agency is developing for its future effluent guidelines planning evaluations. EPA received only one comment on this issue, and the commenter supported the Agency's proposed decision not to revise effluent guidelines for these subcategories at this time.

V. Future of the Effluent Guidelines Program

The 1992 Consent Decree will terminate in June, 2004 when EPA takes final action on the last effluent guideline covered in the Decree.

A. A Strategy for National Clean Water Industrial Regulations

The termination of the Consent Decree offers EPA, interested stakeholders, and the public the chance to evaluate the existing program and to consider how national industrial regulations can best meet the needs of the broader National Clean Water Program in the years ahead. EPA is drafting a strategy setting forth a planning process by which EPA will conduct the review of national effluent guidelines and establish priorities to address the water quality challenges of the 21st century.

Integral to any planning process is the need to efficiently allocate scarce resources among competing priorities. This is particularly the case for EPA, which has the responsibility to assure that both public and private funds for regulatory compliance are spent to address the highest risks to human health and the environment. EPA also believes that its process for setting priorities must be transparent. In keeping with these goals, the draft strategy will describe how EPA will work with other interested parties to assess the risks posed by industrial discharges and to identify the best approach to address these risks (i.e., through effluent guidelines or other mechanisms). All of the commenters on the proposed Effluent Guidelines Program Plan that addressed this matter supported EPA's goal to develop a strategy for planning for the future of the effluent guidelines program, and encouraged EPA to engage a broad range of stakeholders in the planning process.

EPA expects that development and implementation of this strategy will require a significant Agency investment in research, planning, and outreach. EPA's goal is to publish this draft strategy later this year, and the Agency will seek to engage a broad range of interested parties in a discussion on the draft strategy. EPA intends to use the process described in the strategy to identify additional effluent guidelines to address in the future.

B. Solicitation of Stakeholder Recommendations

Several commenters on the proposed plan suggested specific existing guidelines that the Agency consider as candidates for revision, and suggested that the Agency consider specific industrial categories which may not have effluent guidelines as candidates for guideline development. Several commenters proposed criteria that EPA could use in deciding whether to revise an existing effluent guideline or to develop a new guideline, including consideration of specific pollutants of concern. A few commenters also suggested that the Agency consider alternate approaches to guideline development, such as assisting in the development of local limits to control pollutant discharges, and shifting its approach to address violations of water quality standards. EPA will consider these suggestions as input to the first step in the planning process for the Effluent Guidelines Program Plan for 2003/2004.

As recommended by the Effluent Guidelines Task Force, the Agency believes that an important first step in the planning process is to consult with NPDES-authorized states, pretreatment control authorities, and professional associations to obtain their recommendations pertaining to revising existing effluent guidelines and targeting industries for new guidelines. These stakeholders can help to 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 may have concerns or data indicating the need for new or revised regulations. Therefore, to prepare for the Effluent Guidelines Program Plan to be published in 2004 (for years 2004/2005), the Agency invites the public 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.

VI. Public Comments

EPA accepted public comments on the Proposed Effluent Guidelines Program Plan for 2002/2003 through July 18, 2002. The Agency received nine comments from a variety of commenters including industry, metropolitan sewerage agencies, a trade association, environmental groups, and a federal agency. 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.