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Regulatory Alert - RA 07-01

Member Pipeline - Regulatory - Alert (RA 07-02)

To:

Members & Affiliates
From: National Office
Date:

March 6, 2007
Subject: EPA EFFLUENT GUIDELINES PROGRAM
Reference: RA 07-02

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This Regulatory Alert provides an update on the U.S. Environmental Protection Agency’s (EPA’s) Effluent Guidelines Program, including a summary of the Final 2006 Effluent Guidelines Program Plan (2006 Plan) and ongoing rulemaking efforts for effluent limitation guidelines (ELGs).  EPA is required by the Clean Water Act to publish its Effluent Guidelines Program plan every two years, outlining the schedule for performing annual reviews of effluent guidelines and identifying potential new categories for national pretreatment standards. 

EPA’s Final 2006 Effluent Guidelines Program Plan (2006 Plan) was published in the Federal Register (http://a257.g.akamaitech.net/7/257/2422/01jan20061800/ edocket.access.gpo.gov/2006/pdf/E6-21890.pdf) on December 21, 2006.  The 2006 Plan includes the results of EPA’s 2006 annual review of effluent guidelines and its intentions for the 2007 annual review.  EPA will not revise any existing effluent guidelines in the coming year, which follows NACWA’s recommendations in its comments (http://www.nacwa.org/getfile.cfm?fn=2005-11-28ELGcmts.pdf) to EPA on the preliminary version of the 2006 Plan.  EPA did, however, identify four industries for further study and potential regulation in the future:  Steam Electric Power Generation, Coal Mining, Coal Bed Methane Extraction, and Health Services. 

EPA is still studying the Drinking Water Treatment and Airport Deicing Categories, which were both identified in the 2004 Effluent Guidelines Program Plan (2004 Plan) as candidates for ELG rulemaking.  EPA is currently surveying both industries to collect data about pollutant discharges and treatment techniques, and decisions regarding the need for ELGs are expected later this year. 

Legal Action Likely to Impact ELG Program

Current legal action may affect EPA’s ELG procedures in the future.  In January 2007, EPA filed an appeal of a district court decision in Natural Resources Defense Council (NRDC), et al. v. EPA, et al.  The 2006 decision said that EPA has a “mandatory duty” to issue ELGs for industries named as candidates in prior ELG plans, which would force EPA to issue ELGs for Drinking Water Treatment and Airport Deicing, as well as for the construction industry, which was identified as a candidate in the 2000 and 2002 plans.  In another case, Our Children’s Earth Foundation (OCEF) v. EPA, OCEF is appealing a 2005 district court decision that EPA has significant discretion in implementing the ELG program, and that the Agency is implementing the ELG program properly and consistently with Congress’ intent.  NACWA appeared before the U.S. Court of Appeals for the Ninth Circuit on February 13, 2007, as an intervenor in the case, supporting the district court’s decision in favor of EPA.

2006 Annual Review of Existing ELG Categories

For the 2006 annual review, EPA reviewed all 56 point source industrial categories, including over 450 subcategories, with existing ELGs and pretreatment standards.  A screening level review of each category was conducted, focusing on the amount and toxicity of the pollutants discharged.  The categories were then prioritized based on their hazard to human health and the environment.  Categories that were prioritized in the 2005 annual review received further study, consisting of either a “detailed study” or a less intense “prioritized category review,” to help EPA determine if ELG rulemaking is appropriate for these categories.  EPA also examined several categories identified by public comments regarding the 2004 Plan to determine whether they warranted additional review. 

Detailed Studies

The Pulp, Paper, and Paperboard category and the Steam Electric Power Generation category were ranked as the highest hazard categories in screening level review for toxic and non-conventional pollutant discharges during the 2005 annual review.  Detailed studies were therefore conducted during the 2006 annual review for these two categories.  Dioxins and dioxin-like compounds were the pollutants of most concern for the Pulp, Paper, and Paperboard category.  EPA reviewed the effluent discharges from 84 mills and evaluated the concentrations for dioxins, polycyclic aromatic compounds (PACs), metals, and nutrients.  EPA found that additional or revised limits are not necessary because of the low concentrations, usually at or near the analytical method minimum level (below which the concentrations are uncertain and not considered reliable enough for regulatory purposes), and the lack of end-of pipe treatment technologies. 

The detailed study of the Steam Electric Power Generating category focused on characterizing the pollutant sources and evaluating pollution control technologies.  Although boron, aluminum, and arsenic are three of the top five pollutants released, they were not identified as pollutants of concern in previous ELG rulemakings.  EPA is concerned that these three pollutants may be released directly to surface waters from impoundment sludges and sediments.  Because of air emissions requirements, EPA is also concerned that larger amounts of metals and nutrients will be added to the wastewater.  EPA will be continuing the detailed study in 2007 and 2008 to better characterize the pollution sources and determine if the air-to-water pollutant transfers are adequately controlled by existing water pollution control practices. 

Two categories were identified by public comments on the 2004 Plan as needing revision of existing ELGs:  Coal Mining and Coalbed Methane Extraction, which is potential subcategory of the Oil and Gas Extraction category.  EPA determined from the screening level reviews that it needs more information to determine if revising the ELGs for these categories is appropriate, and it will conduct detailed studies for these categories in 2007 and 2008. 

Prioritized Category Reviews

Prioritized category reviews were conducted for eleven categories that ranked as high hazard priorities in 2005.  EPA found that the discharged pollutants did not present a sufficient hazard to justify revising the ELGs for seven of these categories: Fertilizer Manufacturing; Inorganic Chemicals; Nonferrous Metals Manufacturing; Organic Chemicals, Plastics, and Synthetic Fibers (OCPSF); Petroleum Refining; Porcelain Enameling; and Rubber Manufacturing.  For the Pesticide Chemicals category and the Plastic Molding and Forming category, EPA determined that revisions to the national effluent guidelines are not required because most of the toxic and non-conventional pollutant discharges are from one or a few facilities.  EPA will provide assistance to permitting authorities as requested for these categories.  EPA will collect additional information about discharges from the Ore Mining and Dressing category and Textile Mills category in the 2007 annual review to determine if detailed studies are warranted for these categories.

In the preliminary 2006 Plan, EPA requested comments about whether revising the effluent guidelines for the OCPSF category to use mass-based instead of concentration-based limits would promote water conservation.  Although most of the public comments, including NACWA’s, argued that mass-based limits should be allowed, EPA decided that the current OCPSF effluent guidelines do not inhibit water conservation.

Review of Categories Without Existing Pretreatment Standards

EPA examined industries that are primarily indirect dischargers but are not part of the 35 industrial categories with existing national pretreatment standards.  These industries were grouped into eight categories:

EPA evaluated the pass-through potential and interference potential of pollutants from each of these categories.  For all eight categories, EPA determined that the overall interference potential from the category does not warrant national pretreatment standards, and that for pollutants discharged by a category that could cause interference problems, such as fats, oils, and greases (FOG) from the Food Services Industry, local pretreatment programs are adequate.  EPA also determined that there is a low pass-through potential for all these categories, except for Health Services Industries.

The Tobacco Products category was identified for a detailed study based on public comments in response to the 2004 Plan, with concern expressed over the quantities of toxics and carcinogens discharged due to the manufacture of cigarettes.  The study found that most tobacco processing facilities are indirect dischargers, with low concentrations of toxic and non-conventional pollutants except for nicotine.  The study results indicate that publicly owned treatment works (POTWs) achieve over 96 percent removal of nicotine and that there is no significant interference or pass-through potential; therefore, national pretreatment standards are not necessary. 

Health Services Industries Detailed Study

The following types of facilities are included in the Health Services categories, with over 500,000 of these types of facilities in the U.S.:

In 1976, EPA established ELGs for hospitals that directly discharge and have more than 1000 occupied beds.  The other types of Health Services facilities do not have categorical limitations and almost all of them discharge indirectly to POTWs.  EPA has some information about mercury and silver, which are pollutants of concern from these facilities, but little or no information about emerging pollutant concerns such as endocrine disrupting chemicals (EDCs), pharmaceuticals, and biohazards.  A detailed study will be conducted in 2007 and 2008 to better quantify the pollutants, including the emerging pollutant concerns, in wastewater discharges from Health Services facilities.  The detailed study will also examine the pass-through and interference potential of the discharges and determine if there are existing methods to reduce pollutant discharges to POTWs.

Ongoing Rulemakings for Drinking Water and Airport Deicing Categories

EPA identified the Drinking Water Treatment and Airport Deicing industries as categories for potential ELGs in the 2004 Plan and is currently conducting investigations of these categories by collecting data from the industries.  The data collection effort seeks information about the pollutants discharged, the environmental impact of the pollutants, existing pollution prevention and treatment technologies, and the costs associated with a potential ELG.  For Drinking Water Treatment, EPA is concerned about pollutants in treatment residuals that are discharged directly to surface waters or discharged indirectly through POTWs.  EPA distributed a survey to approximately 620 public water systems in February 2007 as part of the data collection effort for this category, and a final decision about whether an ELG is required is expected by September 2007.  For Airport Deicing,  EPA gathered information about operations and the resulting wastewater during visits to 20 airports in 2004 and 2005.  Wastewater samples were subsequently collected at six of these airports.  In addition, EPA sent a survey to airports in April 2006 to gather technical and financial information about deicing operations, with plans to send a similar survey to airlines.  A proposed rule is expected for the Airport Deicing category by December 2007. 

Ongoing ELG-Related NACWA Activities

NACWA is continuing work on an update to the “50 POTW Study” (Fate of Priority Pollutants in Publicly Owned Treatment Works) from 1982 that is still being used as the basis for evaluating the pass-through potential of pollutants.  The Study characterized the occurrence and fate of 129 toxic pollutants at 50 POTWs representing various treatment technologies, processing quantities, and geographic locations.  Since 1982, however, removal efficiencies and local pretreatment programs have changed, significantly in many cases, thereby limiting the utility of the Study.  EPA is currently conducting a new study to help update the data contained in the original 50 POTW Study, with data collection planned at a handful of POTWs.  NACWA is currently conducting a feasibility study to determine if existing data collected by POTWs can be used for a more comprehensive update of the 50 POTW Study and EPA has expressed an interest in collaborating with NACWA.

NACWA’s Mercury Workgroup is also continuing its work to assist POTWs in controlling discharges of mercury to the treatment plant from a variety of sources, including dental offices.  EPA’s evaluation of the need for effluent guidelines for the Health Services category, which includes dental offices, is being closely tracked by the Workgroup.

Please contact NACWA’s Cynthia Finley at 202/296-9836 or cfinley@nacwa.org if you have questions about NACWA’s activities involving pretreatment or about any other information contained in this Regulatory Alert.