

[Federal Register: December 21, 2006 (Volume 71, Number 245)]
[Notices]               
[Page 76644-76667]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21de06-39]                         

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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) http://www.regulations.gov. Follow the on-line instructions for 

submitting comments.
    (2) E-mail: OW-Docket@epa.gov, 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 
http://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 
http://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 http://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 johnston.carey@epa.gov, or Ms. Jan Matuszko at (202) 566-1035 
or matuszko.jan@epa.gov.

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 http://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

[[Page 76647]]

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 ``< ML'', which means ``less than the minimum level 
specified in part 430.01(i)'' (i.e., 10 picograms/liter for TCDF). The 
owner of the papergrade sulfite mill, which reported concentrations of 
TCDF above the Method 1613B ML in its bleach plant effluent during 2002 
and 2003, made changes to the mill, as required by the State of 
Washington, and subsequently reported no TCDF concentrations above the 
Method 1613B ML in its bleach plant effluent in 2004. Considering only 
reported discharges of TCDF with concentrations above the Method 1613B 
ML, EPA found a total of 4,395 TWPE measured in bleach plant effluents 
in 2002.
    NPDES permit monitoring data show that as of 2004, bleach plant 
effluent concentrations meet the guidelines established in EPA's 1998 
rulemaking. These guidelines are very close to or at the analytical 
method ML. Furthermore, nearly all of data underlying the estimated 
releases of dioxin and dioxin-like compounds reported to TRI is based 
on pollutant concentrations below the Method 1623B MLs, so that TRI-
reported discharges of dioxin and dioxin-like compounds for this 
category are highly uncertain. Therefore, EPA found that additional or 
revised national categorical limitations for dioxin and dioxin-like 
compounds are not warranted at this time.
    Metals discharges reported to TRI and PCS ranked second after 
dioxin and dioxin-like compounds in contributing to this category's 
TWPE. EPA analyzed the concentrations of metals in mill final effluent 
reported to either TRI or PCS. EPA reviewed the metals that were most 
significant in terms of their contribution to the total category TWPE 
(i.e., manganese, aluminum, lead, zinc, mercury, copper, arsenic, 
cadmium, chromium). For the two national databases, the largest 
reported metals discharges, in terms of TWPE, are aluminum (92,205 TWPE 
reported in PCS) and manganese (303,729 TWPE reported in TRI). 
Facilities report only annual mass discharges (pounds/year) to TRI. PCS 
includes monitoring data for only those metals with permit 
requirements. EPA identified 32 mills with NPDES effluent limits or 
monitoring requirements for metals, which included one or more of the 
following metals: aluminum, arsenic,

[[Page 76653]]

cadmium, chromium, copper, lead, manganese, mercury, and zinc. Because 
of these data limitations, EPA also obtained effluent monitoring data 
submitted with NPDES permit renewal applications (e.g., NPDES Permit 
Renewal Application (Form 2C) data). These data included concentrations 
for many metals from a variety of types of mills that may not 
specifically be subject to effluent limits or DMR monitoring.
    In reviewing metals data for this industry EPA noted that the 
sources of metals in mill wastewaters vary by mill and by location. For 
example, some metals sources include source water, raw materials such 
as wood chips or pulp, and chemicals added for production processes or 
wastewater treatment. Metals concentrations in the final effluent were 
low, with most being near or below their method minimum level. Aluminum 
and manganese concentrations in the final effluent, while above their 
method minimum level, were at concentrations generally not considered 
treatable with end-of-pipe treatment technologies suitable for large 
mill effluent flows. EPA reviewed the facilities subject to metals 
permit limits; none of these mills operate an end-of-pipe treatment 
system designed to remove metals from wastewater. These facilities 
typically employ pollution prevention practices to maintain compliance 
with their metals permit limits.
    EPA also reviewed metals pollution prevention technologies for mill 
wastewater through a review of NPDES permits and a literature search. 
Mills are adopting a number of pollution prevention technologies for 
preventing metals from entering their wastewaters, such as changing 
chemical purchasing practices and usage rates (see DCN 3400). These 
pollution prevention technologies are site-specific and reflect the 
unique combinations of factors at each mill (e.g., source of metals, 
processing operations including chemical purchasing practices and usage 
rates) and are not readily adaptable industry-wide.
    EPA found that it would not be appropriate to identify the Pulp, 
Paper, and Paperboard point source category (Part 430) for possible 
effluent guidelines revision to address metals for the following 
reasons: (1) Metals concentrations in the final effluent were low, with 
most being near or below their method minimum level; (2) end-of-pipe 
treatment technologies for metals removal have not been well 
demonstrated on mill wastewaters; and (3) pollution prevention 
technologies are site-specific and reflect the unique combinations of 
factors at each mill and are not readily adaptable industry-wide.
    EPA also reviewed the pollutant loads associated with polycyclic 
aromatic compounds (PACs) for this industrial point source category. 
For the 2005 screening-level analysis, EPA calculated the percentage of 
each PAC present in mill wastewater based on information provided by 
the National Council for Air and Stream Improvement (NCASI). NCASI's 
TRI-reporting guidance includes a table listing the concentrations of 
PAC compounds found in wastewaters for several types of pulping (kraft, 
bisulfite, chemi-thermo-mechanical, thermo-mechanical) based on a 1990 
study. EPA used this distribution to calculate an adjusted TWF for the 
Pulp, Paper, and Paperboard point source category PACs by summing the 
product of each chemical's TWF and its percentage relative to the total 
PACs in mill wastewaters. In the Federal Register notice presenting the 
findings of the 2005 annual review, EPA requested more recent 
information on PACs discharged from these mills. NCASI provided 
comments elaborating on a study of 23 direct discharging mills in 
Quebec between 1998 and 2003. According to NCASI, all data results were 
below the minimum method detection limit for individual PACs. EPA also 
reviewed data submitted with NPDES permit renewal applications and did 
not find reported concentrations of PACs above method detection limits. 
This updated information supports the conclusion that releases of PACs 
reported to TRI are uncertain and that reported releases are based on 
estimates calculated using NCASI's guidance. As with dioxin and dioxin-
like compounds, wastewater analyses for PACs reviewed by EPA indicate 
that discharges are at or below the minimum method detection limit. EPA 
therefore found that revisions to the effluent limitation guidelines 
and standards to address PACs are not warranted at this time.
    EPA also investigated nitrogen (nitrate, nitrite, ammonia, total 
nitrogen) and phosphorus (phosphates) discharges from the Pulp, Paper, 
and Paperboard category. See DCN 3400. EPA requested additional 
information from the industry to confirm the reported discharges of 
nutrients. Wastewater discharged from pulp and paper processes 
typically does not contain sufficient nitrogen and phosphorus to 
operate a stable biological treatment system capable of reducing the 
organic (BOD5) 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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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
