
[Federal Register: December 28, 2009 (Volume 74, Number 247)]
[Notices]               
[Page 68599-68615]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28de09-68]                         

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2008-0517; FRL-9095-5]
RIN 2040-AF06

 
Notice of Availability of Preliminary 2010 Effluent Guidelines 
Program Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Clean Water Act (CWA) sections 301(d), 304(b), 304(g), 
304(m), and 307(b) require EPA to annually review its effluent 
guidelines and

[[Page 68600]]

pretreatment standards. This notice presents EPA's 2009 review of 
existing effluent guidelines and pretreatment standards. This notice 
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). 
Finally, this notice presents the Preliminary 2010 Effluent Guidelines 
Program Plan (``preliminary 2010 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. EPA is soliciting comment on its preliminary 2010 Plan 
and on its 2009 annual review of existing effluent guidelines and 
pretreatment standards and industrial categories not currently 
regulated by effluent guidelines and pretreatment standards.

DATES: If you wish to comment on any portion of this notice, EPA must 
receive your comments by February 26, 2010.

ADDRESSES: Submit your comments, data and information for the 2009 
annual review of existing effluent guidelines and pretreatment 
standards and the preliminary 2010 Plan, identified by Docket ID No. 
EPA-HQ-OW-2008-0517, by one of the following methods:
    (1) http://www.regulations.gov. Follow the online instructions for 
submitting comments.
    (2) E-mail: OW-Docket@epa.gov, Attention Docket ID No. EPA-HQ-OW-
2008-0517.
    (3) Mail: Water Docket, Environmental Protection Agency, Mailcode: 
2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention 
Docket ID No. EPA-HQ-OW-2008-0517. Please include a total of 3 copies.
    (4) Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room 
3334, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID 
No. EPA-HQ-OW-2008-0517. 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-2008-
0517. 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 
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 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 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.
    The following key document provides additional information about 
EPA's annual reviews and the Preliminary 2010 Effluent Guidelines 
Program Plan:
     Technical Support Document for the Preliminary 2010 
Effluent Guidelines Program Plan, EPA-821-R-09-006, DCN 06703, October 
2009.
     Technical Support Document for the Annual Review of 
Existing Effluent Guidelines and Identification of Potential New Point 
Source Categories, EPA-821-R-09-007, DCN 06557, October 2009.
     Steam Electric Power Generating Point Source Category: 
Final Detailed Study Report, EPA-821-R-09-008, DCN 06390, October 2009.

FOR FURTHER INFORMATION CONTACT: Mr. Carey A. Johnston at (202) 566-
1014 or johnston.carey@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 2009 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 
304(m), and 307(b)
VI. EPA's 2010 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 
304(m), 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 Preliminary 2010 Effluent Guidelines Program Plan Under 
Section 304(m)
IX. Request for Comment and Information

I. General Information

A. Does This Action Apply to Me?

    This notice 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?

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 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 marked as CBI 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).

[[Page 68601]]

     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.
     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 2009 review of existing effluent 
guidelines and pretreatment standards under CWA sections 301(d), 
304(b), 304(g), 304(m), and 307(b). This notice also provides EPA's 
preliminary thoughts concerning its 2010 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. 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 preliminary 2010 Effluent Guidelines Program 
Plan (``preliminary 2010 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.

IV. Background

A. What Are Effluent Guidelines and Pretreatment Standards?

    The CWA directs EPA to promulgate effluent limitations guidelines 
and standards (``effluent guidelines'') that reflect pollutant 
reductions that can be achieved by categories or subcategories of 
industrial point sources using technologies that represent the 
appropriate level of control. 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)(B)
    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 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

[[Page 68602]]

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 Is 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) and 304(m) require EPA to review 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 guidelines selected for 
possible revision as a result of that annual review. Section 304(m) 
also requires the plan to identify categories of sources discharging 
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. See CWA section 304(m)(1)(C). EPA also has 
a duty to promulgate effluent guidelines within three years for new 
categories identified in the Plan. See NRDC et al. v. EPA, 437 
F.Supp.2d 1137 (C.D. Ca, 2006). 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).
    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 practicable 
control technology (all pollutants), 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)(1), 304(b)(2) and 304(b)(4), respectively. For over three 
decades, EPA has implemented sections 301 and 304 through the 
promulgation of effluent limitations guidelines, resulting in 
regulations for 57 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 sections 304(b) and 
304(m), 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 revise existing pretreatment 
standards ``from time to time,'' section 304(g) requires an annual 
review. Therefore, EPA meets its 304(g) and 307(b) 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 2010 annual 
pretreatment standards review in the notice containing the Agency's 
2010 annual review of existing effluent guidelines and the final 2010 
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 2009 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 
304(m), 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), 
304(m), and 307(b)?

1. Overview
    In its 2009 annual review, EPA reviewed all industrial categories

[[Page 68603]]

subject to existing effluent limitations guidelines and pretreatment 
standards, representing a total of 57 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. EPA used this review to confirm the 
identification of the three industrial categories prioritized for 
further review in the final 2008 Effluent Guidelines Program Plan 
(September 15, 2008; 73 FR 53218) and to list the industrial categories 
currently regulated by existing effluent guidelines that cumulatively 
comprise 95% of the reported hazard (reported in units of toxic-
weighted pound equivalent or TWPE). Specifically, EPA continued work on 
three detailed studies as part of the 2009 annual review: Steam 
Electric Power Generating (Part 423), Oil and Gas Extraction (Part 435) 
(only to assess whether to include coalbed methane extraction as a new 
subcategory), and Hospitals (Part 460).\1\
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    \1\ Based on available information, hospitals consist mostly of 
indirect dischargers for which EPA has not established pretreatment 
standards. As discussed in Section VII.B, EPA is including hospitals 
in its review of the Health Care 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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    Together, these reviews discharged EPA's obligations to annually 
review both existing effluent limitations guidelines for direct 
dischargers under CWA sections 301(d), 304(b), 304(m) and existing 
pretreatment standards for indirect dischargers under CWA sections 
304(g) and 307(b).
    Based on this review and prior annual reviews, and in light of the 
ongoing effluent guidelines rulemakings and detailed studies currently 
in progress, EPA has decided to pursue an effluent guidelines 
rulemaking for the Steam Electric Power Generating (Part 423) category.
2. How Did EPA's 2008 Annual Review Influence its 2009 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. For example, in the current 
annual review EPA continued its detailed studies of the following three 
categories: Steam Electric Power Generating (Part 423); Oil and Gas 
Extraction (Part 435) (only to assess whether to include coalbed 
methane extraction as a new subcategory); and Hospitals (Part 460) 
(which is part of the Health Care Industry detailed study). In 
addition, EPA is expending additional resources to conduct its 
preliminary category review of the Ore Mining and Dressing (Part 440) 
category in its 2009 annual review based on the toxic discharges 
reported to the Toxics Release Inventory (TRI), Permit Compliance 
System (PCS), and the Integrated Compliance Information System National 
Pollutant Discharge Elimination System (ICIS-NPDES).
    EPA conducts a preliminary category review when it lacks sufficient 
data to determine whether revision would be appropriate and for which 
EPA is performing a further assessment of pollutant discharges before 
starting a detailed study. 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 published the findings from its 2008 annual review with 
its final 2008 Plan, making the data collected available for public 
comment. Docket No. EPA-HQ-OW-2006-0771. EPA used the findings, data 
and comments on the 2008 annual review to inform its 2009 annual 
review. The 2009 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.
3. What Actions Did EPA Take in Performing Its 2009 Annual Reviews of 
Existing Effluent Guidelines and Pretreatment Standards?
a. Screening-level Review
    The first component of EPA's 2009 annual review consisted of a 
screening-level review of all industrial categories subject to existing 
effluent guidelines or pretreatment standards. As a starting point EPA 
collected and analyzed 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). 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, PCS, and ICIS-
NPDES. 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 as its 
estimate of the hazard posed by these pollutant discharges. EPA used 
the most recent 2007 data from the TRI, PCS, and ICIS-NPDES databases. 
The full description of EPA's methodology for the 2009 screening-level 
review is presented in the Technical Support Document (TSD) for the 
preliminary 2010 Plan (see DCN 06703) and the Technical Support 
Document for the Annual Review of Existing Effluent Guidelines and 
Identification of Potential New Point Source Categories (see DCN 
06557).
    EPA also developed a quality assurance project plan (QAPP) for its 
use of TRI, PCS, and ICIS-NPDES data in the 2009 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 DCN 06558). 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 2007 discharge data reported to TRI, PCS, and ICIS-NPDES) 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, correct TRI, PCS, and 
ICIS-NPDES 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

[[Page 68604]]

marked ``(3)'' in the ``Findings'' column in Table V-1 in section V.B.4 
of this notice).
    In order to further focus its inquiry during the 2009 annual 
review, EPA assigned a lower priority for potential revision to 
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 in section V.B.4 of this notice). For 
example, EPA excluded facilities that are associated with the Chlorine 
and Chlorinated Hydrocarbon (CCH) Manufacturing effluent guidelines 
rulemaking from its 2009 hazard assessment of the Organic Chemicals, 
Plastics, and Synthetic Fibers (OCPSF) and Inorganic Chemicals point 
source categories because the CCH rulemaking is underway.
    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 57 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 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. EPA identified no such instance during the 2009 
annual review.
    EPA also applied a lower priority to categories without sufficient 
data to determine whether revision would be appropriate. For any 
industrial categories marked ``(5)'' in the ``Findings'' column in 
Table V-1 in section V.B.4 of this notice, EPA lacks sufficient 
information at this time on the magnitude of the toxic-weighted 
pollutant discharges. 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 
(``preliminary category review'') 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. See the appropriate section in the TSD for the preliminary 
2010 Plan (see DCN 06703) for EPA's data needs for these industrial 
categories.
    For industrial categories marked ``(4)'' in the ``Findings'' column 
in Table V-1 in section V.B.4 of this notice, EPA had sufficient 
information on the toxic-weighted pollutant discharges to continue or 
complete a detailed study of these industrial categories. 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 2009 annual review, EPA continued 
or completed detailed studies of three such categories.
    As part of its 2009 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 in section V.B.4 
of this notice), EPA applied a lower priority for potential revision. 
EPA believes that revision of individual permits for such facilities 
may be more effective than a revised national rulemaking. Individual 
permit requirements can be better tailored to these few facilities and 
may take considerably less time and resources to establish than 
revising the national effluent guidelines. 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 06703). 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 order to evaluate the 
effectiveness of the BPJ permit-based support.
    EPA received comments in previous biennial planning cycles 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.
    As was the case in previous annual reviews, 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 57 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.

[[Page 68605]]

    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-governed data 
collection activities in order to better inform the decision on whether 
effluent guidelines are warranted. Additionally, EPA is evaluating 
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), 304(m), and 307(b) (see DCN 07073). 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).
b. Further Review of Prioritized Categories
    In the publication of the final 2008 Plan EPA identified one 
category, Ore Mining and Dressing (Part 440), for further investigation 
(``preliminary category review''), and a status report is included in 
this notice. EPA identified this category with ``(5)'' in the column 
entitled ``Findings'' in Table V-1, Page 53231 of the final 2008 Plan. 
EPA is not identifying any other categories for preliminary category 
reviews at this time.
    In conducting a preliminary category review, EPA uses the same 
types of data sources used for the detailed studies but in less depth. 
For example, an assessment of the pollutant discharges 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. EPA is not conducting a detailed study for 
the Ore Mining and Dressing category at this time because EPA needs 
additional information regarding this industry to determine whether a 
detailed study is warranted. EPA plans to complete its analysis of this 
additional information for the final 2010 Plan.
c. Detailed Study of Three Categories
    In this review cycle, EPA continued detailed studies of three 
categories: Steam Electric Power Generating (Part 423), Oil and Gas 
Extraction (Part 435) (only to assess whether to include coalbed 
methane extraction as a new subcategory), and Hospitals (Part 460) 
(which is part of the Health Care Industry detailed study). For these 
industries, EPA gathered and analyzed additional data on pollutant 
discharges, economic factors, and technology issues. In general, EPA 
examines one or more of the following elements as part of a detailed 
study: (1) Wastewater characteristics and pollutant sources; (2) the 
pollutants discharged from these sources and the toxic weights 
associated with these 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 is relying on many different sources of data including: (1) The 
2002 U.S. Economic Census; (2) TRI, PCS, and ICIS-NPDES 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/or (11) stakeholder 
comments (see DCN 06703). Additionally, in order to evaluate available 
and affordable treatment technology options for the coalbed methane 
extraction industry sector, EPA is conducting an industry survey.
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 2009 annual review at the time of publication of the 
final 2008 Plan to provide the public with an opportunity to submit 
additional information to assist the Agency in its 2009 annual review. 
EPA received four public comments and placed these comments in the 
supporting docket (see EPA-HQ-OW-2008-0517-0045 through 0048, http://
www.regulations.gov). One commenter requested that EPA expand its 
detailed study of coalbed methane extraction to include all oil and gas 
exploration, stimulation, and extraction techniques that result in 
contamination of surface and groundwater, including hydraulic 
fracturing in all formations. The other three commenters requested that 
EPA initiate an effluent guidelines rulemaking for the Steam Electric 
Power Generating category. In particular, they requested that EPA limit 
the discharges of metals from this category and eliminate the use of 
wet handling for coal combustion wastes.

B. What Were EPA's Findings From Its 2009 Annual Review for Categories 
Subject to Existing Effluent Guidelines and Pretreatment Standards?

1. Screening-level Review
    In its 2009 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 in section 
V.B.4 of this notice

[[Page 68606]]

for a summary of EPA's findings with respect to each existing category; 
see also the TSD for the preliminary 2010 Plan. Out of the categories 
subject only to the screening level review in 2009, 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.
    EPA carefully examined the industrial categories currently 
regulated by existing effluent guidelines that cumulatively comprise 
95% of the reported hazard (reported in units of toxic-weighted pound 
equivalent or TWPE). The TSD for the preliminary 2010 Plan presents a 
summary of EPA's review of these seven industrial categories (see DCN 
06703).
2. Detailed Studies
a. Overview
    In its 2009 annual review, EPA continued detailed studies of three 
industrial point source categories: Steam Electric Power Generating 
(Part 423), and Oil and Gas Extraction (Part 435) (only to assess 
whether to include coalbed methane extraction as a new subcategory), 
and Hospitals (Part 460) (which is part of the Health Care Industry 
detailed study). EPA is investigating whether the pollutant discharges 
reported to TRI, PCS, and ICIS-NPDES for 2007 accurately reflect the 
current discharges. EPA is also analyzing the reported pollutant 
discharges, technology innovation, and process changes in these 
industrial categories. Additionally, EPA is considering 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. For Coalbed Methane Extraction and Health Care 
Industry EPA plans to use the detailed studies to determine whether EPA 
should identify in the final 2010 Plan (or a future Plan) either of 
these two industrial categories for possible revision of their existing 
effluent guidelines and pretreatment standards. EPA's reviews of two of 
three categories are described below and its review of hospitals is 
described in section VII.B (Health Care Industry detailed study).
b. Steam Electric Power Generating (Part 423)
    EPA has completed a multi-year study of the Steam Electric Power 
Generating industry and, based on the results, has determined that 
revising the current effluent guidelines is warranted. EPA's decision 
to revise the current effluent guidelines is largely driven by the high 
level of toxic-weighted pollutant discharges from power plants and the 
expectation that these discharges will increase significantly in the 
next few years as new air pollution controls are installed. Over the 
course of the study EPA has identified technologies that are available 
to significantly reduce these pollutant discharges.
    The Steam Electric Power Generating effluent guidelines (40 CFR 
423) apply to a subset of the electric power industry, namely those 
facilities ``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 water system as the thermodynamic medium.'' See 40 CFR 423.10. 
EPA's most recent revisions to the effluent guidelines and standards 
for this category were promulgated in 1982 (see 47 FR 52290; November 
19, 1982).
    Since 2005, EPA has been carrying out an intensive review of 
wastewater discharges from power plants. As part of this effort, EPA 
has sampled wastewater from surface impoundments and advanced 
wastewater treatment systems, conducted on-site reviews of the 
operations at more than two dozen power plants, and issued a detailed 
questionnaire that obtained information on thirty power plants using 
authority granted under section 308 of the Clean Water Act. EPA's data 
collection primarily focused on four target areas: (1) Determining the 
pollutant characteristics of power plant wastewater; (2) identifying 
treatment technologies for the wastewater generated by air pollution 
control equipment; (3) characterizing the practices used by the 
industry to manage or eliminate discharges of fly ash and bottom ash 
wastewater; and (4) identifying methods for managing power plant 
wastewater that allow recycling and reuse, rather than discharge to 
surface waters. Much of the information collected thus far, including 
laboratory data from sampling, were made available to the public in an 
interim study report, ``Steam Electric Power Generating Point Source 
Category: 2007/2008 Detailed Study Report,'' (see EPA-HQ-OW-2006-0771-
1699) and the final study report, ``Steam Electric Power Generating 
Point Source Category: Final Detailed Study Report,'' (see DCN 03690).
    EPA's review of the wastewater characteristics indicates that most 
of the toxic pollutant loadings for this category are associated with 
metals and certain other elements present in wastewater discharges, and 
that the waste streams contributing the majority of these pollutants 
are associated with ash handling and wet flue gas desulfurization (FGD) 
systems. Other potential sources of these pollutants include coal pile 
runoff, metal cleaning wastes, coal washing, leachate from landfills 
and wastewater impoundments, and certain low-volume wastes.
    Between July 2007 and October 2008, EPA conducted six sampling 
episodes to characterize untreated wastewaters generated by coal-fired 
power plants, including FGD wastewater, and fly ash and bottom ash 
transport water. EPA also collected samples to assess the effluent 
quality from different types of treatment systems currently in place at 
these operations. Samples were analyzed for metals and other 
pollutants, such as total suspended solids and nitrogen. Sampling 
reports for the first five episodes are included in the docket for the 
2008 Plan, and the report for the final sampling episode is included in 
the docket for the 2010 Plan (see DCN 06197). These reports discuss the 
specific sample points and analytes, the sample collection methods 
used, the field quality control samples collected, and the analytical 
results for the wastewater samples.
    EPA expects that the use of wet FGD systems will increase 
substantially over the next decade as State and Federal regulations are 
implemented to reduce air emissions. Metals and other pollutants are 
transferred from the flue gas to the wastewater produced by wet FGD 
systems. Based on results from the sampling and other data, EPA 
determined that there are unregulated toxic and conventional pollutants 
present in ash pond and FGD wastewater which can be reduced 
significantly with treatment technologies.
    An increasing amount of evidence indicates that the characteristics 
of coal combustion wastewater have the potential to impact human health 
and the environment. Discharges of coal combustion wastewater have been 
associated with fish kills, reductions in the growth and survival of 
aquatic organisms, behavioral and physiological effects in wildlife and 
aquatic organisms, potential impacts to human health (e.g., drinking 
water contamination), and changes to the local habitat. Many of the 
pollutants commonly found in coal combustion wastewater (e.g., 
selenium, mercury, and arsenic) are known to cause environmental harm 
and potentially represent a human health risk. Although

[[Page 68607]]

coal-fired power plants often dilute coal combustion wastewater with 
other large volume wastewater (e.g., cooling water) to reduce the 
pollutant concentrations prior to discharge, the effluent can contain 
large mass loads (i.e., total pounds) of pollutants. Some of the 
pollutants in these discharges, although present at low concentrations, 
can bioaccumulate and present an increased ecological threat due to 
their tendency to persist in the environment, resulting in slow 
ecological recovery times following exposure. In addition, leachate 
from impoundments and landfills containing coal combustion wastes can 
contain high concentrations of pollutants and has been identified as a 
source of ground water and surface water impacts.
    Additional information about data collected and findings of the 
detailed study of the Steam Electric Power Generating industry is 
presented in the final study report, ``Steam Electric Power Generating 
Point Source Category: Final Detailed Study Report,'' (see DCN 06390). 
The report includes data on the characteristics of wastewater from coal 
fired power plants, identifies the wastewater treatment technologies 
reviewed, presents an overview of the industry profile and predicted 
future trends in the use of air pollution controls, and describes 
environmental impacts that have been linked to coal combustion 
wastewater.
    The Agency expects that data collection efforts for the effluent 
guidelines rulemaking will include wastewater sampling and issuing a 
survey that will obtain detailed technical and financial information. 
In particular, EPA recently published a Federal Register notice 
announcing its intent 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. See 74 FR 55837 (October 29, 2009).
c. Oil and Gas Extraction (Part 435) (Only To Assess Whether To Include 
Coalbed Methane Extraction as a New Subcategory).
    Coalbed methane (CBM) extraction activities accounted for about 7% 
of the total U.S. natural gas production (gross withdrawals) in 2007 
and are expanding in multiple basins across the U.S. Currently, the 
Department of Energy's Energy Information Administration (EIA) expects 
CBM production to remain an important source of domestic natural gas 
over the next few decades.
    CBM extraction requires removal of large amounts of water from 
underground coal seams before CBM can be released. CBM wells have a 
distinctive production history characterized by an early stage when 
large amounts of water are produced to reduce reservoir pressure which 
in turn encourages release of gas. This is followed by a stable stage 
when quantities of produced gas increase as the quantities of produced 
water decrease; and a late stage when the amount of gas produced 
declines and water production remains low (see EPA-HQ-OW-2004-0032-
1904).
    The quantity and quality of water that is produced in association 
with CBM development varies from basin to basin, within a particular 
basin, from coal seam to coal seam, and over the lifetime of a CBM 
well. Pollutants often found in these wastewaters include chloride, 
sodium, sulfate, bicarbonate, fluoride, iron, barium, magnesium, 
ammonia, and arsenic. Total dissolved solids (TDS) and electrical 
conductivity (EC) are bulk parameters that States typically use for 
quantifying and controlling the amount of pollutants in CBM produced 
waters.
    EPA identified the coalbed methane (CBM) sector as a candidate for 
a detailed study in the final 2006 Effluent Guidelines Program Plan (71 
FR 76656; December 21, 2006). As part of that announcement EPA made it 
clear that it would conduct data collection through an information 
collection request (ICR) to support this detailed study. In accordance 
with the Paperwork Reduction Act (PRA), EPA obtained approval from the 
Office of Management and Budget (OMB) for its ``Coalbed Methane 
Extraction Sector Survey'' on February 18, 2009. This approval followed 
two public comment periods on the survey (January 25, 2008; 73 FR 4556 
and July 15, 2008; 73 FR 40757) and more than two years of outreach by 
EPA with interested stakeholders.
    The approved mandatory survey, conducted under the authority of 
Section 308 of the Clean Water Act (33 U.S.C. Section 1318), includes a 
screener and a detailed questionnaire. EPA sent the screener 
questionnaire in February 2009 to all CBM methane operators that have 
three or more CBM wells. EPA used data from 291 screener questionnaires 
and state data on operators with one or two CBM wells to identify that 
in 2008 there were 56,049 CBM wells that operators managed in 692 
different CBM projects. This CBM production, 2.0 trillion cubic feet, 
represents approximately 7.7 percent of the total U.S. natural gas 
production in 2008. The 692 CBM projects are located in 16 different 
CBM basins across the Nation but are mainly concentrated in the States 
of Wyoming, New Mexico, Oklahoma, and Alabama. EPA used these data to 
draw a representative sample of CBM projects. EPA began distribution of 
the detailed questionnaire to the representative sample of CBM projects 
in late October 2009. The detailed questionnaire will collect financial 
and technical data on approximately 250 CBM methane projects across the 
country.
    EPA will use the screener and detailed questionnaires to collect 
technical and economic information from a wide range of CBM operations. 
EPA plans to collect information on geographical and geologic 
differences in the characteristics of CBM produced waters, 
environmental data, current regulatory controls, and availability and 
affordability of treatment technology options.
    EPA also visited eight different CBM produced water treatment 
technologies in Wyoming. Included in these technologies are ion 
exchange, reverse osmosis, thermal distillation, and lined pit disposal 
and evaporation. These site visits supplemented EPA site visits to 
Pennsylvania, West Virginia, Virginia, Alabama, New Mexico, Colorado, 
Wyoming, and Montana in 2007 (see EPA-HQ-OW-2006-0771-0977).
    EPA is also conducting a literature review of environmental impacts 
and beneficial uses of produced water. The literature review is being 
conducted in three phases focusing on: (1) Scientific journal articles, 
(2) documents retrieved from Web sites of State and Federal agencies, 
universities, and non-governmental organizations, and (3) 
environmentally sustainable beneficial uses of produced water. Results 
of the first phase are included in the docket (see DCN 06934). 
Additionally, EPA will be reviewing current requirements for surface 
water discharge of produced water. Currently, regulatory controls for 
CBM produced waters vary from State to State and permit to permit (see 
EPA-HQ-OW-2004-0032-2782, 2540). The assessment of State permitting 
requirements for surface water discharge of produced water will examine 
factors such as the number of current permits, the proportion of 
discharges covered under individual versus general permits, the types 
of pollutants controlled, and the numeric concentration limits 
required. This assessment will give EPA a better understanding of 
variations and consistencies among States in controlling CBM produced 
water discharges.
    Finally, EPA is soliciting public comment on whether it should 
expand its detailed study of coalbed methane extraction to include all 
oil and gas

[[Page 68608]]

exploration, stimulation, and extraction techniques that result in 
contamination of surface and groundwater, including hydraulic 
fracturing in all formations.
3. Results of Preliminary Category Reviews
    During the 2008 annual review, EPA identified the Ore Mining and 
Dressing (Part 440) category for a preliminary category review for two 
reasons: (1) The industry has a high TWPE discharge estimate of process 
wastewater (i.e., EPA identified this category with ``(5)'' in the 
column entitled ``Findings'' in Table V-1, Page 53231 of the final 2008 
Plan); and (2) comments received on previous Plans assert that better 
controls are needed for stormwater discharges to surface water at ore 
mining sites. Stormwater discharges from Ore Mining and Dressing 
facilities that are not commingled with process wastewater are not 
regulated by effluent guidelines but are regulated under individual or 
general stormwater NPDES permits. This preliminary category review is 
on-going.
    EPA performed several analyses during the 2009 annual review. These 
analyses included: (1) Coordinating with the primary western ore mining 
States to collect information for mines classified as NPDES minor 
facilities (i.e., collecting information States do not typically submit 
to EPA's ICIS or PCS databases); (2) reviewing journals and technical 
literature to identify the latest advances in wastewater treatment 
technologies; and (3) reviewing Total Maximum Daily Load (TMDL) plans 
to determine whether active ore mine discharges are discharging into 
impaired waterbodies. Section IX of this notice and the TSD for the 
preliminary 2010 Plan (see DCN 06703) lists the data and information 
that EPA would like to collect on the pollutant discharges and 
potential treatment technology options for the Ore Mining and Dressing 
category in order to complete this preliminary category review.
4. Summary of 2009 Annual Review Findings
    In its 2009 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 
prior annual reviews, and in light of the ongoing effluent guidelines 
rulemakings and detailed studies currently in progress, EPA has decided 
to pursue an effluent guidelines rulemaking for the Steam Electric 
Power Generating (Part 423) category. Additionally, EPA is continuing 
to conduct detailed studies for two existing categories: Oil and Gas 
Extraction (only with respect to coalbed methane) and Hospitals (part 
of the Health Care Industry detailed study).
    A summary of the findings of the 2009 annual review is presented 
below 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) Revising the national effluent guidelines or pretreatment 
standards is not the best tool 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 (e.g., not among industries that cumulatively comprise 95% of 
reported hazard in TWPE units).
    (4) EPA intends to continue a detailed study of this industry in 
its 2010 annual review to determine whether to identify the category 
for effluent guidelines rulemaking.
    (5) EPA is continuing or initiating a preliminary category review 
because incomplete data are 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 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 preliminary 2010 Plan (see DCN 06703) for EPA's data needs 
for industries in this category.

   Table V-1--Findings From the 2009 Annual Review of Effluent Guidelines and Pretreatment Standards Conducted
                            Under Section 301(d), 304(b), 304(g), 304(m), and 307(b)
----------------------------------------------------------------------------------------------------------------
                                                  Industry Category (Listed                          Findings
                    No.                                Alphabetically)              40 CFR part      [dagger]
----------------------------------------------------------------------------------------------------------------
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             (3)
9..........................................  Coal Mining........................             434             (3)
10.........................................  Coil Coating.......................             465             (3)
11.........................................  Concentrated Animal Feeding                     412             (1)
                                              Operations (CAFO).
12.........................................  Concentrated Aquatic Animal                     451             (1)
                                              Production.
13.........................................  Construction and Development.......             450             (1)
14.........................................  Copper Forming.....................             468             (3)
15.........................................  Dairy Products Processing..........             405             (3)
16.........................................  Electrical and Electronic                       469             (3)
                                              Components.
17.........................................  Electroplating.....................             413             (1)
18.........................................  Explosives Manufacturing...........             457             (3)
19.........................................  Ferroalloy Manufacturing...........             424             (3)
20.........................................  Fertilizer Manufacturing...........             418             (3)

[[Page 68609]]


21.........................................  Glass Manufacturing................             426             (3)
22.........................................  Grain Mills........................             406             (3)
23.........................................  Gum and Wood Chemicals.............             454             (3)
24.........................................  Hospitals \2\......................             460             (4)
25.........................................  Ink Formulating....................             447             (3)
26.........................................  Inorganic Chemicals [Dagger].......             415     (1) and (3)
27.........................................  Iron and Steel Manufacturing.......             420             (1)
28.........................................  Landfills..........................             445             (3)
29.........................................  Leather Tanning and Finishing......             425             (3)
30.........................................  Meat and Poultry Products..........             432             (1)
31.........................................  Metal Finishing....................             433             (1)
32.........................................  Metal Molding and Casting..........             464             (3)
33.........................................  Metal Products and Machinery.......             438             (1)
34.........................................  Mineral Mining and Processing......             436             (3)
35.........................................  Nonferrous Metals Forming and Metal             471             (3)
                                              Powders.
36.........................................  Nonferrous Metals Manufacturing....             421             (3)
37.........................................  Oil and Gas Extraction.............             435             (4)
38.........................................  Ore Mining and Dressing............             440             (5)
39.........................................  Organic Chemicals, Plastics, and                414     (1) and (3)
                                              Synthetic Fibers [Dagger].
40.........................................  Paint Formulating..................             446             (3)
41.........................................  Paving and Roofing Materials (Tars              443             (3)
                                              and Asphalt).
42.........................................  Pesticide Chemicals................             455             (3)
43.........................................  Petroleum Refining.................             419             (3)
44.........................................  Pharmaceutical Manufacturing.......             439             (3)
45.........................................  Phosphate Manufacturing............             422             (3)
46.........................................  Photographic.......................             459             (3)
47.........................................  Plastic Molding and Forming........             463             (3)
48.........................................  Porcelain Enameling................             466             (3)
49.........................................  Pulp, Paper, and Paperboard........             430             (3)
50.........................................  Rubber Manufacturing...............             428             (3)
51.........................................  Soaps and Detergents Manufacturing.             417             (3)
52.........................................  Steam Electric Power Generating                 423             (1)
                                              [dagger][dagger].
53.........................................  Sugar Processing...................             409             (3)
54.........................................  Textile Mills......................             410             (3)
55.........................................  Timber Products Processing.........             429             (3)
56.........................................  Transportation Equipment Cleaning..             442             (3)
57.........................................  Waste Combustors...................             444             (3)
----------------------------------------------------------------------------------------------------------------
[dagger] Note: The descriptions of the ``Findings'' codes are presented immediately prior to this table.
[dagger] Note: Two codes (``(1)'' and ``(3)'') are used for this category as both codes are applicable to this
  category and do not overlap. The first code (``(1)'') refers to the ongoing effluent guidelines rulemaking for
  the Chlorinated Hydrocarbon (CCH) manufacturing sector, which includes facilities currently regulated by the
  OCSPF and Inorganics effluent guidelines. The second code (``(3)'') indicates that the remainder of the
  facilities in these two categories do not represent a hazard priority at this time.
[dagger][dagger] Note: EPA is using the preliminary 2010 Plan to conclude its detailed study of this category
  and to announce its decision to identify the category for an effluent guidelines rulemaking.

VI. EPA's 2010 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 
304(m), 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 2009 review. 
The information gathered during the 2009 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 2010 
annual review. See Table V-1 in section V.B.4 of this notice. In 2010, 
EPA intends to again conduct a screening-level analysis of all 57 
categories and compare the results against those from previous years.
---------------------------------------------------------------------------

    \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 Care 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.
---------------------------------------------------------------------------

    EPA will also conduct further review of the industrial categories 
currently regulated by existing effluent guidelines that cumulatively 
comprise 95% of the reported hazard (reported in units of toxic-
weighted pound equivalent or TWPE). Additionally, EPA intends to 
continue detailed studies of the following two categories with existing 
effluent guidelines and pretreatment standards: Oil and Gas Extraction 
(Part 435) (only to assess whether to include coalbed methane 
extraction as a new subcategory) and Hospitals (Part 460) (which is 
part of the Health Care Industry detailed study). EPA is continuing its 
preliminary category review for the Ore Mining and Dressing category in 
the 2010 annual review. EPA invites comment and data on the two 
detailed studies, the one preliminary category review, and all 
remaining point source categories.

[[Page 68610]]

VII. EPA's Evaluation of Categories of Indirect Dischargers Without 
Categorical Pretreatment Standards to Identify Potential New Categories 
for Pretreatment Standards

A. EPA's Evaluation of Pass Through and Interference of Toxic and Non-
Conventional Pollutants Discharged to POTWs

    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.
    One of the tools traditionally used by EPA in evaluating whether 
pollutants ``pass through'' a POTW is a comparison of the percentage of 
a pollutant removed by POTWs with the percentage of the pollutant 
removed by discharging facilities applying BAT. Pretreatment standards 
for existing sources are technology based and are analogous to BAT 
effluent limitations guidelines. In most cases, EPA has concluded that 
a pollutant passes through the POTW when the median percentage removed 
nationwide by representative POTWs (those meeting secondary treatment 
requirements) is less than the median percentage removed by facilities 
complying with BAT effluent limitations guidelines for that pollutant. 
This approach to the definition of ``pass through'' satisfies two 
objectives set by Congress: (1) That standards for indirect dischargers 
be equivalent to standards for direct dischargers; and (2) that the 
treatment capability and performance of POTWs be recognized and taken 
into account in regulating the discharge of pollutants from indirect 
dischargers.
    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 potential for ``interference,'' 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, the POTW treatment 
system, 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).
    If EPA determines a category of indirect dischargers causes pass 
through or interference, EPA would then consider the BAT and BPT 
factors (including ``such other factors as the Administrator deems 
appropriate'') specified in section 304(b) to determine whether to 
establish pretreatment standards for these activities. Examples of 
``such other factors'' include a consideration of the magnitude of the 
hazard posed by the pollutants discharged 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. Additionally, 
EPA would consider whether other regulatory tools (e.g., use of local 
limits under Part 403) or voluntary measures would better control the 
pollutant discharges from this category of indirect dischargers. For 
example, 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 reviewed TRI 2007 discharge data in order to identify industry 
categories without categorical pretreatment standards that are 
discharging pollutants to POTWs that may pass through, interfere with 
or otherwise be incompatible with POTW operations (see DCN 06703). This 
review did not identify any such industrial categories. EPA also 
evaluated stakeholder comments and pollutant discharge information in 
the previous annual reviews to inform this review. In particular, EPA 
received stakeholder comments on the issues of dental amalgam and 
unused pharmaceuticals management for the Health Care Industry in 
response to the 2007 annual review. As discussed in the final 2008 Plan 
EPA is again not identifying dental facilities for an effluent 
guidelines rulemaking in this notice at this time (September 15, 2008; 
73 FR 53233). However, EPA is continuing its study of unused 
pharmaceutical management for the Health Care Industry.
    EPA also solicits comment and data on all industrial sectors not 
currently subject to categorical pretreatment standards for its 2010 
review. Finally, EPA solicits comment on data sources and on methods 
for collecting and aggregating pollutant discharge data collected by 
pretreatment programs to further inform its future review of industry 
categories without categorical pretreatment standards.

B. Unused Pharmaceuticals

    To date, scientists have identified numerous pharmaceutical 
compounds at discernable concentrations in our nation's rivers, lakes, 
and streams (see EPA-HQ-OW-2006-0771-1694). To address this issue at 
the source, EPA is studying how the drugs are entering our waterways 
and what factors contribute to the current situation. Towards this end, 
EPA initiated a study on pharmaceutical disposal practices at health 
care facilities including hospitals, hospices, long-term care 
facilities, health care clinics, doctor's offices, and veterinary 
facilities. Unused pharmaceuticals include dispensed prescriptions that 
patients do not use as well as materials that are beyond their 
expiration dates. Another potential source of unused pharmaceuticals is 
the residuals remaining in used and partially used dispensers, 
containers,

[[Page 68611]]

and devices. In particular, the medications contained in the 
dispensers, containers and devices may be sewered (e.g., intravenous 
(IV) bags emptied into sink).\3\ For many years, a standard practice at 
many health care facilities was to dispose of unused pharmaceuticals by 
flushing them down the toilet or drain.
---------------------------------------------------------------------------

    \3\ As a point of clarification, the term ``unused 
pharmaceuticals'' does not include excreted pharmaceuticals.
---------------------------------------------------------------------------

    For the 2008 final Plan, EPA completed an interim technical report 
for the Health Care Industry (see EPA-HQ-OW-2006-0771-1694). The 
interim technical report focused on hospitals and long-term care 
facilities (LTCFs) because these facilities are likely responsible for 
the largest amounts of unused pharmaceuticals being disposed into 
sewage collection systems within this industry sector. In 2005, there 
were about 7,000 hospitals and 35,000 LTCFs in the United States (see 
EPA-HQ-OW-2006-0771-1694). EPA is continuing its detailed study to 
investigate the following questions:
     What are the current industry practices for disposing of 
unused pharmaceuticals?
     What types of pharmaceuticals are being disposed?
     What are the options for disposing of unused 
pharmaceuticals other than down the drain or toilet?
     What factors influence disposal decisions?
     Do disposal practices differ within industry sectors?
     What Best Management Practices (BMPs) could facilities 
implement to reduce the generation of unused pharmaceuticals?
     What are the costs of current disposal practices compared 
to the costs of implementing BMPs or alternative disposal methods?
    Since the publication of the final 2008 plan, EPA also reviewed 
comments received on the first Federal Register notice for the health 
care industry ICR published on August 12, 2008 (73 FRN 46903). The ICR 
was originally developed to collect technical and economic information 
on unused pharmaceutical management and to identify technologies and 
BMPs that reduce or eliminate the discharge of unused pharmaceuticals 
to POTWs. EPA received 31 comments and conducted outreach meetings with 
industry to obtain further comments on the survey design and 
instrument.
    Commenters included hospitals and clinics, health care trade 
associations, pharmacists associations, reverse distributors, 
pharmaceutical manufacturers, individuals, and municipal wastewater 
treatment plants and their associations. Following publication of the 
first Federal Register notice for the ICR, EPA conducted three 
teleconferences in September 2008 with 259 stakeholders to provide an 
overview of the project, scope of the survey instrument, potential 
recipients, and schedule. These meetings solicited early feedback from 
participants to facilitate the development of a subsequent draft of the 
survey instrument and population and sample frames. These 
teleconferences also identified interested stakeholders for the site 
visits/additional outreach meetings. Overall, the comments received 
were supportive of the survey. Most commenters had a number of 
suggestions on how to improve the survey. Improvements suggested were 
to expand the scope of sectors receiving the survey, to shorten the 
survey, and to tailor the survey to each health care sector. There were 
a few health care organizations who felt a survey was not necessary for 
a variety of reasons including burden to the facilities, that they are 
already practicing BMPs, or that they would favor the more immediate 
issuance of EPA guidance.
    In addition to exploring the use of an industry survey, EPA has 
continued to study the issue of how health care facilities are managing 
and disposing of unused pharmaceuticals and POTW treatment 
effectiveness in an effort to identify the root cause and potential 
solutions to address the issue of pharmaceuticals in our waterways. 
Since the publication of the final 2008 Plan, EPA conducted site visits 
to 3 additional hospitals in 3 States, four LTCFs in three States, a 
veterinary hospital, a long-term care pharmacy, a hospice, an oncology 
clinic, and a waste management vendor facility to obtain more detailed 
information on how pharmaceuticals are managed, tracked, and disposed 
as well as influences on behavior (see DCN 06496). During each site 
visit, EPA collected general site information and specific unused 
pharmaceutical management and disposal information. The objectives of 
these site visits included:
     Collect information on the amount of unused 
pharmaceuticals disposed when available;
     Observe pharmaceutical waste management practices;
     Identify common industry disposal practices, guidance, and 
regulatory requirements;
     Identify challenges with the generation and disposal of 
unused, unwanted, and expired pharmaceuticals;
     Identify BMPs and their costs; and
     Gather information about how hospitals, LTCFs, or other 
facilities operate.
    Additionally, EPA contacted other types of health care facilities 
(e.g., medical and dental offices, university and prison health 
clinics, and veterinary clinics) to learn about their unused 
pharmaceutical disposal practices. EPA also reviewed studies on POTW 
pharmaceutical treatment effectiveness and the potential pathways for 
unused pharmaceuticals to be released into the environment (see DCN 
06571).
    In summary, since the study began in 2007 EPA has worked with a 
wide range of stakeholders (e.g., industry representatives; Federal, 
State, local and Tribal government representatives; waste management 
and disposal companies; and other interested parties) to obtain the 
best available information on the industry and its unused 
pharmaceutical management practices. In total, EPA met or spoke with 
over 700 different people during the outreach and data collection 
activities from 2007 through 2009 (see DCN 06496). Based on its 
outreach and data gathering, the Agency estimates that hospitals and 
long-term care facilities have the greatest amounts of unused 
pharmaceuticals as compared with other health care sectors (e.g., 
dentist, retail pharmacies).
    EPA's outreach has also identified that there is near universal 
interest from stakeholders to better manage unused pharmaceuticals at 
health care facilities. There is also general interest in more quickly 
advancing the use of best practices for managing unused pharmaceuticals 
at health care facilities. This considerable outreach and data 
collection has led EPA to re-consider the use of an industry survey for 
this sector. The survey would be an effective but potentially time-
consuming tool for gathering facility-specific data on the management 
of unused pharmaceuticals. EPA estimates that it has gathered 
sufficient data from its site visits and outreach to begin the 
development of best practices for unused pharmaceutical management at 
health care facilities. During the next year EPA will continue to work 
with a variety of stakeholders in the development of these best 
practices and the means for their dissemination and adoption. EPA 
expects to complete the development of these best practices for the 
final 2010 Plan.

[[Page 68612]]

VIII. The Preliminary 2010 Effluent Guidelines Program Plan Under 
Section 304(m)

    In accordance with CWA section 304(m)(2), EPA is publishing this 
preliminary 2010 Plan for public comment prior to this publication of 
the final 2010 Plan.

A. EPA's Schedule for Annual Review and Revision of Existing Effluent 
Guidelines Under Section 304(b) and 304(m)

1. Schedule for 2009 and 2010 Annual Reviews Under Section 304(b) and 
304(m)
    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 
preliminary 2010 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 2009 annual review 
ends with the publication of this preliminary 2010 Plan in this notice.
    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 2009 annual review along with the 
preliminary 2010 Plan, EPA hopes to gather and receive data and 
information that will inform its reviews for 2010 and the final 2010 
Plan.
2. Schedule for Possible Revision of Effluent Guidelines Promulgated 
Under Section 304(b)
    EPA is currently conducting a rulemaking to potentially revise 
existing effluent guidelines and pretreatment standards for the 
following categories: Organic Chemicals, Plastics 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). EPA 
previously indicated it would conduct an industry survey for this 
effluent guidelines rulemaking (April 18, 2006; 71 FR 19887). EPA is 
considering its next steps for this survey and the rulemaking as it 
reviews data from a voluntary industry monitoring program. EPA worked 
with industry to develop the extensive monitoring program to better 
understand the category's pollutant discharges. EPA has decided to 
pursue an effluent guidelines rulemaking for the Steam Electric Power 
Generating (Part 423) category. 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 Plan. See CWA section 304(m)(1)(C). EPA also 
has a duty to promulgate effluent guidelines within three years for new 
categories identified in the Plan. See NRDC et al. v. EPA, 437 
F.Supp.2d 1137 (C.D. Ca, 2006).
    EPA is currently conducting an effluent guidelines rulemaking for 
one new industrial category--Airport Deicing Operations--which was 
identified as a potential new category in the final 2004 Plan 
(September 2, 2004; 69 FR 53705). EPA published a notice of proposed 
rulemaking for this category on August 28, 2009 (74 FR 44676). 
Additionally, EPA recently completed an effluent guidelines rulemaking 
for the Construction and Development category (40 CFR 450) because it 
was directed to do so by a district court order. NRDC et al. v. EPA, 
No. 04-8307, order (C.D. Ca., December 6, 2006). EPA proposed effluent 
guidelines for this category on November 28, 2008 (73 FR 72561) and 
published final effluent guidelines on December 1, 2009 (74 FR 62995). 
EPA is not at this time proposing to identify any other potential new 
categories for effluent guidelines rulemaking and therefore is not 
scheduling effluent guidelines rulemaking for any such categories in 
this preliminary Plan.
    In order to identify industries not currently subject to effluent 
guidelines, EPA primarily used data from TRI, PCS, and ICIS-NPDES. 
Facilities with data in TRI, PCS, and ICIS-NPDES are identified by a 
four-digit SIC code or six-digit North American Industry Classification 
System (NAICS) code (see DCN 06557). NAICS codes are a new economic 
classification system that replaces the SIC system, which has 
traditionally been used by the Federal Government for collecting and 
organizing industry-related statistics. The PCS and ICIS-NPDES data 
systems use SIC codes while the TRI system recently switched to NAICS 
codes.
    EPA performs a crosswalk between the TRI, PCS, and ICIS-NPDES 
discharge data, identified with SIC or NAICS codes, and the 57 point 
source categories with effluent guidelines or pretreatment standards to 
determine if each SIC or NAICS code is currently regulated by existing 
effluent guidelines (see DCN 06703). 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. EPA notes that the Ninth 
Circuit has recently held that the precise number and kind of 
categories identified by EPA in its 304(m) planning process is 
discretionary with the Administrator.

[[Page 68613]]

Our Children's Earth v. EPA, 527 F.3d 842, 852 (9th Cir. 2008).
    The first criterion for identifying industries under section 
304(m)(1)(B) is whether they are ``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. 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 interprets section 304(m)(1)(B) in 
its biennial Plan as only applying to 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.
    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 57 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 used 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 
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.'' \4\ 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.
---------------------------------------------------------------------------

    \4\ 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.
---------------------------------------------------------------------------

    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 comprised exclusively or almost exclusively of 
indirect discharging facilities regulated under section 307.
    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. 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. 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 discharge of toxic or non-conventional 
pollutants.
    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 guidelines rulemaking may be an appropriate tool 
for controlling discharges. 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.

IX. Request for Comment and Information

A. EPA Requests Information on the Coalbed Methane Sector of the Oil 
and Gas Extraction Category (Part 435)

    EPA is researching the following questions and topics as they 
relate to the quantity and toxicity of pollutants discharged and the 
environmental impacts of these discharges to support the Oil and Gas 
Extraction/Coalbed Methane detailed study.
    [dec221] What is the range of pollutant concentrations in CBM 
produced water?
    [dec221] What is the toxicity of these pollutants to human health 
and the environment?
    [dec221] What is the range of pollutant concentrations and what are 
the CBM produced water flow rates for the major CBM basins?
    [dec221] What CBM produced water pollutants are typically 
controlled through permit limits and what is the range of these permit 
limits?
    [dec221] What are the observed and potential impacts of CBM 
produced water discharges on aquatic environments and communities, 
riparian zones, and other wetlands?
    [dec221] How does the composition of CBM produced water change when 
discharged to normally dry draws or ephemeral streams? In particular, 
to what extent do CBM produced water discharges mobilize metals, soil 
nutrients, pesticides and other organic contaminants present in soil 
and carry these constituents to surface waters?
    [dec221] What are measures that can mitigate potential impacts to 
use of surface waters for irrigation? EPA is researching the following 
questions and topics as they relate to the potential technology options 
and beneficial use practices for this industrial sector.

[[Page 68614]]

    [dec221] What are the current industry treatment technologies for 
CBM produced water?
    [dec221] What are the potential beneficial use applications of CBM 
produced water and what are the corresponding criteria for such uses?
    [dec221] How effectively do these treatment technologies and 
beneficial use practices reduce the potential adverse impacts of CBM 
produced water discharges?
    [dec221] What is the range of incremental annualized compliance 
costs associated with these technologies and practices? How do these 
costs differ between existing and new sources?
    [dec221] What is the demonstrated use and economic affordability 
(e.g., production losses, firm failures, employment impacts resulting 
from production losses and firm failures, impacts on small businesses) 
of these technologies across the different CBM basins?
    [dec221] What are the types of non-water quality environmental 
impacts (including energy impacts) associated with the current industry 
treatment technologies and beneficial use practices for CBM produced 
water?
    EPA is researching the following questions and topics as they 
relate to the expansion of CBM exploration and development and the 
affordability of potential technology options for this industrial 
sector.
    [dec221] What is the near-term and long-term growth rate for this 
industry sector? Which CBM basins are likely to experience the most 
growth within the next ten years?
    [dec221] What are the current industry drilling and infrastructure 
expansion plans for CBM exploration and development?
    [dec221] What is the predicted range of CBM reserves across the 
different basins that would be economically recoverable at different 
natural gas prices?
    [dec221] What are the potential impacts on developing CBM reserves 
and operator profitability and rates of return on investment of any 
increased costs associated with potential industry treatment 
technologies and beneficial use practices for CBM produced water 
discharges?
    [dec221] What is the difference between potential impacts on 
existing sources versus new sources?
    [dec221] What percentage of CBM operators are considered small 
entities?
    EPA is researching the following questions and topics as they 
relate to current regulatory controls.
    [dec221] How do NPDES permit programs regulate CBM produced water 
discharges (e.g., individual permits, general permits)?
    [dec221] What is the BPJ basis for existing technology-based 
effluent limits for CBM produced water discharges?
    [dec221] To what extent and how do current regulatory controls 
ensure the beneficial use of CBM produced water?
    [dec221] What other statutes might affect the ability to discharge, 
treat, or beneficially use CBM produced water (e.g., SDWA, RCRA)?

B. EPA Requests Comments and Information on the Following as It Relates 
to Unused Pharmaceutical Management for the Health Care Industry

    [dec221] EPA solicits identification of any policies, procedures or 
guidelines that govern the disposal of unused pharmaceuticals from 
hospitals and hospices; offices of doctors and mental health 
practitioners; nursing, long-term care, rehabilitation, and personal 
care facilities; medical laboratories and diagnostic service 
facilities; and veterinary care facilities.
    [dec221] EPA solicits comment and data on: (1) The main factors 
that drive current disposal practices; and (2) any barriers preventing 
the reduction or elimination of unused pharmaceuticals to POTWs and/or 
surface waters. In particular, EPA solicits comment on the extent to 
which that the Controlled Substances Act (21 U.S.C. 801 et. seq.) 
complicates the design of an efficacious solution to drug disposal.
    [dec221] EPA solicits quantitative information or tracking sheets 
for the past year on the disposal of unused pharmaceuticals via the 
toilet, drain, or sewer.
    [dec221] EPA solicits data on how control authorities are currently 
controlling disposal of unused pharmaceuticals via wastewater.
    [dec221] EPA solicits information on any technologies or BMPs that 
are available to control, reduce, or eliminate the disposal of unused 
pharmaceuticals to POTWs.
    [dec221] EPA solicits qualitative and quantitative data on the 
effectiveness and annualized costs of the technologies or BMPs that 
health service facilities use to control or eliminate the discharge of 
unused pharmaceuticals from their wastewater. EPA is also interested in 
obtaining information on the current costs (including labor) associated 
with disposal of unused pharmaceuticals via the drain or toilet.
    [dec221] EPA solicits any studies or information on the potential 
for unused pharmaceuticals that are disposed of in non-hazardous-waste 
landfills to contaminate underground resources of drinking water.

C. Preliminary Category Review for the 2010 Annual Review

    EPA requests information on the Ore Mining and Dressing category 
(i.e., the industrial point source category with existing effluent 
guidelines identified with ``(5)'' in the column entitled ``Findings'' 
in Table V-1 in section V.B.4 of this notice). EPA will need to collect 
more information for the 2010 annual review. Specifically, EPA hopes to 
gather the following information:
    [dec221] What toxic pollutants are discharged from this industry 
category in non-trivial amounts on an industry and per-facility basis?
    [dec221] What raw material(s) or process(es) are the sources of 
these pollutants?
    [dec221] What technologies or management practices are available 
(technically and economically) to control or prevent the generation 
and/or release of these pollutants?

D. Data Sources and Methodologies

    EPA solicits comments on whether EPA used the correct evaluation 
factors, criteria, and data sources in conducting its annual review and 
developing this preliminary Plan. EPA also solicits comment on other 
data sources EPA can use in its annual reviews and biennial planning 
process. Please see the docket for a more detailed discussion of EPA's 
analysis supporting the reviews in this notice (see DCN 06703).

E. BPJ Permit-Based Support

    EPA solicits comments on whether and if so how, the Agency should 
provide EPA Regions and States with permit-based support instead of 
revising effluent guidelines (e.g., when the vast majority of the 
hazard is associated with one or a few facilities). EPA solicits 
comment on categories for which the Agency should provide permit-based 
support.

F. Identification of New Industrial Categories and Sectors

    EPA solicits comment on the methodology for grouping industrial 
sectors currently not subject to effluent guidelines or pretreatment 
standards for review and prioritization, and the factors and measures 
EPA should consider for determining whether to identify such industries 
for a rulemaking. EPA solicits comment on other data sources and 
approaches EPA can use to identify industrial sectors currently not 
subject to effluent guidelines or pretreatment standards for review and 
prioritization.

[[Page 68615]]

G. Implementation Issues Related to Existing Effluent Guidelines and 
Pretreatment Standards

    As a factor in its decision-making, 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. Consequently, EPA solicits comment on implementation issues 
related to existing effluent guidelines and pretreatment standards.

Notice of Availability of Preliminary 2010 Effluent Guidelines Program 
Plan

H. EPA's Evaluation of Categories of Indirect Dischargers Without 
Categorical Pretreatment Standards To Identify Potential New Categories 
for Pretreatment Standards

    EPA solicits comments on its evaluation of categories of indirect 
dischargers without categorical pretreatment standards. Specifically, 
EPA solicits wastewater characterization data (e.g., wastewater 
volumes, concentrations of discharged pollutants), current examples of 
pollution prevention, treatment technologies, and local limits for all 
industries without pretreatment standards. EPA also solicits comment on 
whether there are industrial sectors discharging pollutants that cause 
interference issues that cannot be adequately controlled through the 
general pretreatment standards.

    Dated: December 17, 2009.
Peter S. Silva,
Assistant Administrator for Water.
[FR Doc. E9-30625 Filed 12-24-09; 8:45 am]

BILLING CODE 6560-50-P
