[Federal Register Volume 70, Number 198 (Friday, October 14, 2005)]
[Proposed Rules]
[Pages 60199-60202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20000]



  Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / 
Proposed Rules  

[[Page 60199]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 403

[OW-2005-0024; 7980-3]
RIN 2040-AC58


Availability of and Procedures for Removal Credits

AGENCY: Environmental Protection Agency (EPA).

ACTION: Advance notice of proposed rulemaking.

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SUMMARY: Today's Advance Notice of Proposed Rulemaking (ANPRM) seeks 
comment on two issues concerning the removal credits provisions in the 
General Pretreatment Regulations. EPA requests comments on whether to 
amend the list of pollutants for which removal credits are available to 
add certain pollutants. The pollutants that the Agency would add are 
those that EPA previously has determined, after an exposure and hazard 
screening, would not require sewage sludge regulations. EPA is also 
soliciting comment on options to amend the ``consistent removal'' 
provision in the removal credits regulations that would be consistent 
with a decision of the U.S. Court of Appeals for the Third Circuit.

DATES: Comments must be received on or before December 13, 2005.

ADDRESSES: Submit your comments, identified by Docket ID No. OW-2005-
0024 by one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
on-line instructions for submitting comments.
    Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's 
electronic public docket and comment system, is EPA's preferred method 
for receiving comments. Follow the on-line instructions for submitting 
comments.
    E-mail: [email protected]. Please specify Docket ID No. OW-2005-
0024 in the body of the message.
    Mail or Hand Delivery/Courier: Water Docket, Environmental 
Protection Agency, Mailcode 4101T, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460, Attention Docket ID No. OW-2005-0024. Please 
include a total of two copies. Hand deliveries/couriers are only 
accepted during the Docket's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. OW-2005-0024. 
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.epa.gov/edocket, 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 EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov websites are 
``anonymous access'' systems, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through EDOCKET or regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit EDOCKET on-line or see the Federal Register of May 31, 
2002 (67 FR 38102). For additional instructions on submitting comments, 
go to Section I.B1 of the preamble.
    Docket: All documents in the docket are listed in the EDOCKET index 
at http://www.epa.gov/edocket. 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 in EDOCKET or in hard 
copy at the Water Docket, EPA/DC, EPA West, Room B102, 1301 
Constitution Ave., NW., Washington, DC 20004. 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.

FOR FURTHER INFORMATION CONTACT: Jennifer Chan, Water Permits Division, 
Office of Wastewater Management (4203M), Environmental Protection 
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; phone 
number: (202) 564-0995; fax number: (202) 564-6431; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

    Entities potentially affected by this action are governmental 
entities responsible for implementation of the National Pretreatment 
Program and industrial facilities subject to Pretreatment Standards and 
requirements. These entities include:

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           Category                  Examples of regulated entities
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Local government.............  Publicly Owned Treatment Works (POTWs).
State government.............  States and Tribes acting as Pretreatment
                                Program Control Authorities or as
                                Approval Authorities.
Industry.....................  Industrial Users of POTWs.
Federal Government...........  EPA Regional Offices Acting as
                                Pretreatment Program Control Authorities
                                or as Approval Authorities.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your organization or facility is regulated by this action, you should 
carefully examine the applicability criteria in 40 CFR 403.1 and 40 CFR 
403.7. If you have questions about the applicability of this action to 
a particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

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B. What Should I Consider as I Prepare My Comments for EPA?

    When submitting comments, remember to:
    1. Identify the rulemaking by docket number and other identifying 
information (subject heading, Federal Register date and page number).
    2. 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.
    3. Explain why you agree or disagree; suggest alternatives and 
substitute language for your requested changes.
    4. Describe any assumptions and provide any technical information 
and/or data that you used.
    5. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    6. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    7. Explain your views as clearly as possible.
    8. Make sure to submit your comments by the comment period deadline 
identified.

II. Overview of Removal Credits

A. What are the Existing Rules Relating to Removal Credits?

    Section 307(b)(1) of the Clean Water Act (CWA) directs EPA to 
establish categorical Pretreatment Standards in order to prevent 
interference with POTW operation and pass through of inadequately 
treated pollutants. Because, in certain instances, POTWs could provide 
some or all of the treatment of an Industrial User's wastewater that 
would otherwise be required pursuant to the Pretreatment Standard, the 
Act also authorizes a discretionary program for POTWs to grant 
``removal credits'' to their Industrial Users. Removal credits are a 
regulatory mechanism by which Industrial Users may discharge a 
pollutant in quantities that exceed what would otherwise be allowed 
under an applicable categorical Pretreatment Standard because it has 
been determined that the POTW to which the Industrial User discharges 
consistently removes the pollutant.
    Section 307(b)(1) establishes a three-part test that a POTW must 
meet in order to obtain removal credit authority for a given pollutant. 
Removal credits may be authorized only if (1) the POTW ``removes all or 
any part of such toxic pollutant,'' (2) the POTW's ultimate Discharge 
would ``not violate that effluent limitation or standard which would be 
applicable to that toxic pollutant if it were discharged'' directly 
rather than through a POTW, and (3) the POTW's Discharge would ``not 
prevent sludge use and disposal by such [POTW] in accordance with 
section [405] * * *'' (Sec. 307(b)). EPA promulgated removal credit 
regulation that are codified at 40 CFR 403.7 (See 43 FR 27736, 46 FR 
9404, 49 FR 31212, and 52 FR 42434).
    Under 40 CFR 403.7, POTWs are authorized to grant removal credits 
if they meet the conditions outlined in 40 CFR 403.7(a)(3). One 
condition is POTWs must demonstrate and continue to achieve 
``consistent removal'' of the pollutant. ``Consistent removal'' is 
defined at 40 CFR 403.7(b). Another condition is removal credits may 
only be made available for pollutants that are listed in Appendix G, 
Table I of Part 403 for the sludge use or disposal practice employed by 
the POTW, when the requirements in 40 CFR Part 503 are met, or for 
pollutants listed in Appendix G, Table II of this part when the 
concentration for a pollutant in the sewage sludge does not exceed the 
concentration for the pollutant in Appendix G, Table II. In addition, 
removal credits may be made available for any pollutant in sewage 
sludge when the POTW disposes all of its sewage sludge in a municipal 
solid waste landfill unit that meets the criteria in 40 CFR Part 258.

B. Third Circuit Court Decision

    The U.S. Court of Appeals for the Third Circuit in NRDC v. EPA, 790 
F.2d 289 (3rd. Cir. 1986), struck down the 1984 provisions of EPA's 
General Pretreatment regulations (49 FR 31212) concerning removal 
credits on the grounds that EPA had not promulgated the comprehensive 
sewage sludge regulations required by CWA section 405 sludge 
regulations. In the course of the decision, the court also determined 
that the definition of ``consistent removal'' in the regulations failed 
to implement the requirements of the CWA. The court held that the 
definition violated a statutory requirement that direct and indirect 
dischargers be held to the same standards and that EPA's definition of 
consistent POTW removal, i.e. removal that is achieved only 50% of the 
time, violated section 307(b)(1) of the CWA.
    In 1987, the Agency replaced the 1984 ``consistent removal'' 
provision with the 1981 provision (46 FR 9404). See 52 FR 42434. On 
February 19, 1993, EPA promulgated the first round of sewage sludge 
regulations, 40 CFR Part 503, (58 FR 9248) and included those 
pollutants regulated in 40 CFR Part 503 in Appendix G of 40 CFR Part 
403, Table I, Regulated Pollutants in Part 503 Eligible for a Removal 
Credit. Those pollutants not regulated in 40 CFR Part 503 and that the 
Agency was no longer considering for the sewage sludge regulations were 
included in Appendix G of 40 CFR Part 403, Table II, Additional 
Pollutants Eligible for a Removal Credit.

C. What is the Status of EPA's Review of the Existing Part 503 Sewage 
Sludge Regulations?

    The CWA requires EPA to review the sewage sludge regulations every 
two years to identify additional toxic pollutants in sewage sludge that 
may warrant regulation under section 405(d). Under a recent biennial 
review cycle, EPA evaluated publicly available information on the 
toxicity, persistence, concentration, mobility, and potential for 
exposure of additional toxic pollutants in sewage sludge. In a late 
2003 Federal Register notice, EPA outlined a final action plan (68 FR 
75531) for reviewing its sewage sludge regulations in response to a 
2002 National Research Council (NRC) report that identified a need to 
update the scientific basis of Part 503. In that notice, EPA also 
presented the results of its studies to identify additional toxic 
pollutants that might be candidates for future sewage sludge 
regulations. EPA identified fifteen pollutants from a list of 803 
pollutants for further evaluation and possible regulation. These 15 
pollutants, listed below, had a Hazard Quotient (HQ) equal to or 
greater than one and thus failed the screening. The HQ is the ratio of 
the magnitude of exposure of the receptor organism (humans, aquatic 
organism) to the human health or ecological benchmark. EPA will obtain 
updated concentration data and conduct a refined risk assessment using 
the data to determine whether to propose amendments to Part 503.

 Acetone
 Anthracene
 Barium
 Beryllium
 Carbon disulfide
 Chloroaniline, 4-; p-Chloroaniline
 Diazinon
 Fluoranthene
 Manganese (from drinking water)
 Methyl ethyl ketone; 2-Butanone
 Nitrate (as Nitrate-nitrogen)
 Nitrite (as Nitrate-nitrogen)
 Phenol
 Pyrene
 Silver

The Federal Register notice (68 FR 75531, December 31, 2003) includes

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timeframes for taking action on these pollutants. Once this action is 
taken, Appendix G of the Pretreatment regulation would be modified to 
add the additional pollutants if warranted. Additional biennial review 
cycles will occur per section 405(d)(2)(C) of the CWA.
    EPA also determined that there was sufficient toxicological and 
exposure data for 25 pollutants to conclude that these pollutants would 
not require regulation under Part 503. (With respect to five of these 
25 pollutants, EPA has reevaluated its determination because they are 
undergoing current IRIS (Integrated Risk Information System) or Office 
of Pesticide Program reassessment.) These 5 pollutants are listed 
below:
     Benzoic acid
     Butyl benzyl phthalate
     Dichloroethene, 1, 2-trans-
     Dichloromethane; Methylene chloride
     Dioxane, 1,4-

The remaining 20 pollutants, listed in Section III.A., have undergone 
EPA's rigorous exposure and hazard screening which includes a 
probabilistic model of 14 potential pathways to humans and ecological 
endpoints.

III. Solicitation of Comments

    This section of the ANPRM describes the two issues EPA is 
soliciting comments on.
    1. Whether EPA should propose to amend the list of pollutants 
eligible for removal credits to add the 20 pollutants for which the 
Agency has completed an exposure and hazard screening.
    2. Whether there are any options to amend the ``consistent 
removal'' provision in the removal credits regulations that would be 
consistent with the earlier Third Circuit decision.

A. What Action Could EPA Take To Amend the List of Eligible Pollutants

    EPA did not propose any changes to the list of pollutants eligible 
for removal credits or any modifications to the procedures for 
obtaining removal credits in the 1999 proposed Pretreatment 
Streamlining Rule (64 FR 39564). (EPA notes that the Agency did propose 
to change the methodology used for adjusting removal credits to account 
for system overflows in 40 CFR 403.7(h). See Section III.H. of today's 
final Pretreatment Streamlining Rule.) A number of commenters asked EPA 
to consider changes to the regulations to allow greater availability of 
removal credits for a broader range of pollutants. More specifically, 
these commenters suggested that EPA further streamline the regulations 
to make removal credits available for pollutants EPA is no longer 
considering for the sewage sludge regulations (40 CFR Part 503). EPA 
notes that certain pollutants that it evaluated and is no longer 
considering for the sewage sludge regulations are listed in Appendix G 
of the 40 CFR Part 403, Table II and are eligible for removal credits. 
Moreover, as explained above, EPA is at this time evaluating whether to 
amend the sewage sludge regulations. During any resulting rulemaking, 
interested parties may submit information and background data to EPA 
that would support amendments to Appendix G to add additional 
pollutants for which removal credits will be available.
    In addition, a POTW or Industrial User may petition the Agency to 
establish a Part 503 standard or an amendment to Part 403, Appendix G 
for a pollutant. The petition must contain documentation consistent 
with the records of decision underlying current Appendix G listings. 
Data must be included on the toxicity, fate effects, and environmental 
transport properties of individual pollutants adequate to allow EPA to 
construct a Part 503 numerical standard, or to allow EPA to make a 
finding that the concentration of the pollutant in sewage sludge is not 
sufficient to create a reasonable probability of negative human health 
or environmental impact from that pollutant contained in the sewage 
sludge considering the specific sewage sludge use or disposal practice 
being employed by the POTW. See the Federal Register notice dated 
December 31, 2003 (68 FR 75531) for the exposure and hazard assessment 
needed for pollutant to be considered for removal credits.
    As discussed in section II.C. of the preamble, there are 20 
pollutants that did not fail EPA's exposure and hazard screening. These 
pollutants, listed below, could potentially qualify for removal 
credits.

     Acetophenone
     Azinphos methyl
     Biphenyl, 1,1-
     Chlorobenzene; Phenyl chloride
     Chlorobenzilate
     Chlorpyrifos
     Cresol, o-; 2-Methylphenol
     Endrin
     Ethyl p-nitrophenyl phenylphosphororthioate; EPN; Sanox
     Hexachlorocyclohexane, alpha-
     Hexachlorocyclohexane, beta-
     Isobutyl alcohol
     Methyl isobutyl ketone (MIBK); Methyl-2-pentanone, 4-
     Naled
     N-Nitrosdiphenylamine
     Trichlorofluoromethane
     Trichlorophenoxy propionic acid, 2-2,4,5-; Silvex
     Trichlororphenoxyacetic acid, 2,4,5-; 2,4,5-T
     Trifluralin
     Xylenes (mixture)

    EPA could develop upper concentrations for these pollutants and add 
them to Appendix G of 40 CFR Part 403, Table II through an amendment to 
the Pretreatment rule. EPA requests comment on whether the addition of 
any of these 20 pollutants to Appendix G would be helpful to POTWs and 
IUs in applying for removal credits. Depending on the response, EPA 
would then consider whether to develop a schedule for proposing an 
amendment to Appendix G of 40 CFR Part 403, Table II.

B. Consistent Removal Demonstration

    EPA did not propose any changes to how a POTW demonstrates 
``consistent removal'' in the 1999 Proposed Pretreatment Streamlining 
Rule and did not receive comment on this issue. However, in a draft 
2004 Report to Congress on the Costs and Benefits of Federal Regulation 
prepared by the Office of Management and Budget (OMB), OMB requested 
public nominations of specific regulations, guidance documents and 
paperwork requirements that, if reformed, could result in lower costs, 
greater effectiveness, enhanced competitiveness, more regulatory 
certainty and increased flexibility. These nominations, along with 
agency responses, were compiled in OMB's March, 2005 report on 
Regulatory Reform of the U.S. Manufacturing Sector. One of the reform 
nominations that OMB received suggested that the procedures POTWs must 
follow to get authority for removal credits are unduly burdensome and 
thus make removal credits unduly difficult to obtain. The commenter 
asserted that the required testing procedures do not accurately reflect 
the actual pollutant removal capability of the POTW and cited as 
example the requirement under 40 CFR 403.7(b) which requires that the 
POTW calculate the removal rate based on the average of the lowest half 
of the removal measurements taken according to listed procedures. The 
commenter recommended revisions to more accurately reflect the total 
removal by the POTW, and modifications to facilitate the granting of 
authority when justified.
    With respect to the commenter's concern about ``consistent 
removal'', EPA notes that its options are constrained by the Third 
Circuit's

[[Page 60202]]

decision. However, EPA is requesting comment on whether there are any 
options to amend the consistent removal provision that would simplify 
or improve the process for obtaining removal credits that would be 
consistent with the restrictions previously established by the court.

    Dated: September 27, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-20000 Filed 10-13-05; 8:45 am]
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