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Draft Effluent Limits Plan Falls Short, Deviates From Risk Approach, Groups Say
A draft plan by the Environmental Protection Agency to review and possibly revise effluent limitation guidelines for industrial dischargers falls short of Clean Water Act requirements, an environmental advocacy group said March 18.
Representatives of several industry groups, however, said that the EPA plan
deviates from an earlier draft strategy to identify industrial categories for
review based on the risk their discharges pose to human health and the
environment.
EPA published its draft effluent limitations guidelines (ELG) program plan for
2004-2005 Dec. 31, 2003 (250 DEN A-7, 12/31/03 ; 68 Fed. Reg. 75,515). The
organic chemicals, plastics, and synthetic fibers point source category and
petroleum refining point source category were identified by EPA for detailed
investigation in its 2004 annual review, according to the draft. The agency
lists 55 industrial categories covered by existing effluent guidelines
promulgated under the Clean Water Act.
Most of the effluent limitation guidelines have been set by EPA based on a
court-ordered schedule that resulted from lawsuits by environmental groups. In
June, EPA will issue its effluent limitation guidelines on aquaculture, the last
required by consent agreement.
The draft plan is designed as a framework for how the agency will approach
reviewing and revising existing effluent limitation guidelines or deciding which
industrial sources not currently covered should be regulated.
The comment period on the draft closed March 18.
Schedules Not Set
Comments from Melanie Shepherdson, an attorney with the Natural Resources
Defense Council, said EPA's draft plan is inadequate because it does not meet
the Clean Water Act's mandate under Section 304(m)(1)(A), to set a "schedule for
the annual review and revision of promulgated effluent guidelines."
Rather, the group said, "EPA's proposal to limit ELG review to two industries,
its failure to commit to revising any ELGs, and its failure to develop a
schedule for revising existing ELGs is inadequate and does not serve the
purposes of or comply with the requirements of the CWA."
The American Chemistry Council disagreed, saying the agency did not have a
"compelling reason to pursue detailed study of these industries." Moreover, the
draft deviates from a draft strategy for national clean water industrial
regulations published in November 2002 from which the 2003 draft plan evolved.
EPA said it plans to publish both together in final form later this year.
ACC said the 2002 draft strategy incorporated a "sound, risk-based focus" for
looking at industrial dischargers. The 2002 draft essentially said the agency
should look at the extent to which an industrial category discharges pollutants
that pose a risk to human health and the environment in determining whether it
should be considered for review and revision.
Current Controls Adequate
The synthetic chemical manufacturers have applied the required best available
technology economically achievable (BAT) to achieve limits that are adequately
protective, Robert Elam, director of the environmental management group at the
ACC, said in comments.
After identifying the risk, the agency should then select a technology for
reducing that risk which is economically achievable and incorporates
recommendations from interest groups.
"EPA's Preliminary Plan departs from each of these sound concepts," the
chemistry council said. "In essence, the Plan asserts that EPA's own Draft
Strategy is too difficult to implement, at least in a short time frame. Instead,
EPA appears to revert to previously used, less robust screening methods to
identify potential regulatory targets in an unwise deviation from its
well-conceived strategy."
Rather than considering risks, EPA instead focused on the toxicity of the types
of pollutants discharged from the various industries, ACC said.
NRDC also criticized the draft for failing to identify categories of industrial
dischargers not currently regulated under the effluent limitation guidelines
program for which the agency for the development of an ELG and for not setting a
schedule for promulgating new ELGs.
Update Study of POTWs
The Association of Metropolitan Sewerage Agencies, which represents large
publicly owned treatment works, said EPA should update its 1982 study of 50
POTWs used as the basis for developing pretreatment standards. Pretreatment
standards are promulgated along with ELGs and regulate industrial discharges to
sewage treatment plants.
"The current study is more than 20 years old and the removal efficiencies,
physical parameters, and process data that EPA must rely upon for evaluating
pretreatment standards are no longer valid," the comments from Ken Kirk,
executive director of AMSA, said. "Before EPA considers updating or revising any
specific existing ELGs, it must update the 50 POTW Study."
Roger Claff, senior environmental scientist for the American Petroleum
Institute, questioned in comments why EPA identified petroleum refineries for
review. The agency presented no evidence that discharges from these facilities
are harming surface waters, the API comments said. In looking at the various
source categories, EPA did not assess actual risk, but only the potential risks
posed by various pollutants. The agency also relied on data from the Toxics
Release Inventory, which are not based on actual measured concentrations, API
said, but on assumptions and estimates of possible discharges.
"The petroleum refining industry would not rank as a high-risk industrial
category if the Agency's analysis subscribed to the intent of the draft Effluent
Guidelines Strategy, relied exclusively on properly validated monitoring results
and risk analyses, and thus truly assessed 'the extent to which the [petroleum]
industry is discharging pollutants that pose a risk to human health and the
environment,' " API said, quoting the draft strategy.
Use of TRI Data
The Pharmaceutical Research and Manufacturers of America agreed that EPA should
not rely on TRI data to assess risk.
"The mass of pollutants discharged by an industrial category does not equate to
risk--a large mass of pollutants that is released by an industry with many
manufacturing plants that discharge large quantities of wastewater may represent
no risk at all to water quality and human health," Alice Till, vice president
for science policy and technical affairs at PhRMa, said.
Till also questioned the use of comments in identifying point source categories
for review because they are often "personal opinions" that "do not represent a
reasoned assessment of the strengths and weaknesses of the existing guidelines."
AMSA officials, on the other hand, said involving interested parties early in
the process and often will benefit the ELG program.
A comment from someone identified only as A. Gilliam, a pretreatment coordinator
from an unidentified state, said EPA did not reach out to small and medium-sized
sewage treatment plants, some of whom were unaware of the draft plan.
"What's the typical percent of comments received by POTWs with populations
greater than 100,000 [versus] those with populations less than 20,000?" the
comments said. "Small to medium sized POTWs, without a representative lobby
group remain in the dark regarding the potential benefits of now past and future
guidelines."
Risk Overestimated
Dow Chemical also criticized the use of TRI data combined with toxic weighting
factors to rank risk.
"Only site-specific, risk-based characterization of TRI data, considering unique
exposure and ecological and human receptors, should be used in the
characterization for a specific site," the comments from Carolyn Johnson, of
Dow's regulatory affairs division, said.
The result of the methodology used by EPA is an overestimation of the potential
risks from synthetic chemical manufacturers, she said. In addition, the draft
plan contains no incentives for water conservation.
"EPA's effluent guidelines plan and screening activities should be based on
identified water quality impacts," Johnson said.
The Independent Liquid Terminals Association addressed petroleum bulk stations
and terminals (PBST), which were identified in the draft plan as a potential
subcategory of the petroleum refining point source category. The association
said EPA relied on TRI data and information from the Permit Compliance System,
used by EPA to track data from National Pollutant Discharge Elimination System
permits. That information shows the volume of toxic pollutants from bulk
terminals to be "miniscule."
"There is no reason to think that the petroleum bulk terminal industry as a
whole is a significant contributor of toxic discharges into the nation's surface
waters," the comments from David Doane, president of ILTA, said in the comments.
"A decision by EPA to create a subcategory for PBSTs would have to be premised
on a supportable factual finding that there is a need for a new, federal
regulatory program imposing nationwide limits on PBST discharges to surface
waters."
Donald Schregardus, deputy assistant secretary of the Navy for environment, said
that if EPA decides to create the bulk terminals subcategory, it should limit
the regulation to PBSTs located on petroleum refilling facilities. Moreover, he
said, existing requirements are adequately protective for oil storage facilities
not associated with petroleum production.
"DoD does not own or operate any petroleum refineries, but it does store and use
oil in bulk, including as fuel supply for vessels, aircraft, combat, and
tactical vehicles," Schregardus said in comments. Most DoD installations are
subject to the oil spill prevention, control, and countermeasure (SPCC)
regulations."
By Susan Bruninga