AMSA Regulatory Alert 04-01

To: Members & Affiliates, Pretreatment & Hazardous Waste Committee
From: National Office
Date: January 9, 2004
Subject: PRELIMINARY EFFLUENT GUIDELINES PROGRAM PLAN FOR 2004/2005
Reference: RA 04-01

Action Please By:
February 10, 2004

On December 31, 2003, the U.S. Environmental Protection Agency (EPA or the Agency) published its Preliminary Effluent Guidelines Program Plan for 2004/2005 (ELG Plan) (68 Fed. Reg. 75515). At the same time, the Agency presented the results of its annual review of all effluent limitations guidelines (ELGs) that have been promulgated under section 304(b) of the Clean Water Act and solicited comments on the analytical framework used to conduct the annual review. EPA is accepting comments on the notice through February 17, 2004. The Agency will also host a public meeting in Washington, D.C. on January 28, 2004 from 9am to 12pm to discuss the ELG Plan with stakeholders. AMSA will participate in this meeting. To facilitate the Association’s comment effort, AMSA asks members to provide input by February 10, 2004.

Preliminary ELG Plan Findings
The Agency is required in its ELG Plan to identify categories of sources discharging toxic or non-conventional pollutants for which EPA has not promulgated ELGs. From that list, the Agency identified no new candidates for ELG rulemaking in the ELG Plan, based upon the following factors:

• An ELG rulemaking for the industry is underway or was recently concluded.
• The vast majority of the estimated hazards are limited to only one or a few facilities.
• Inadequate data to determine if there are non-trivial discharges; additional data collection ongoing.
• All or nearly all sources engaged in the industrial activity are indirect dischargers and are not subject to Clean Water Act sections 304(b) or 306.
• Other Clean Water Act controls apply.
• The industrial activity considered is not subject to Clean Water Act permitting requirements.

Outcome of ELG Annual Review
The Clean Water Act requires that EPA review each year all ELGs that have been promulgated under section 304(b). The outcome of the 2003 annual review was the identification of two industrial categories that the Agency plans to investigate more fully. EPA plans to perform detailed analyses of technology innovations and process changes, and potential revisions to existing ELGs, in the Organic Chemicals, Plastics, and Synthetic Fibers, and Petroleum Refining industrial categories during its 2004 annual review. The purpose of the detailed investigation of these categories is to determine if new subcategories are needed, and if one or both of these industrial categories need to be revised. The outcome of the 2004 review will be detailed in the final 2004/2005 ELG Plan. AMSA is requesting any comments the membership might have on the need for revisions to the ELGs of these two industrial categories.

The Agency is also seeking comment on the approach it took to conduct its annual review. EPA first outlined this approach in its November 2002 draft Strategy for National Clean Water Industrial Regulations. This document set the framework for the annual review of the ELG program. AMSA members can download Association comments on the draft strategy at http://www.amsa-cleanwater.org/private/legreg/outreach/02-27-03ELG.pdf.  The Agency hopes to finalize the strategy concurrently with the ELG Plan.

Additional Requests for Comment
In addition to those areas outlined above, the Agency has numerous detailed comment requests found on page 75530 of the December 31, 2003 Federal Register notice. While AMSA encourages members to refer to the Agency’s specific requests, a few of the areas that may be of particular interest are listed below:

• Whether EPA used the correct evaluation factors, criteria and data sources to develop the ELG Plan;
• Whether, and if so how, should the Agency provide EPA Regions and States with permit-based support instead of revising ELGs (e.g., when the vast majority of the hazard or risk is associated with one or a few facilities);
• The sources of data EPA might use to document industry efforts to voluntarily reduce pollutant discharges;
• Implementation issues related to existing ELGs.

Again, EPA is accepting comments on the ELG Plan and other noted issues until February 17, 2004. AMSA asks that members provide the Association with comments by February 10, 2004. Please direct any comments or questions to Will Pettit, AMSA’s Regulatory Analyst, at 202/833-3280 or wpettit@amsa-cleanwater.org.