[Federal Register Volume 72, Number 209 (Tuesday, October 30, 2007)]
[Notices]
[Pages 61335-61355]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-21310]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2006-0771; FRL-8486-3]
RIN 2040-AE89


Notice of Availability of Preliminary 2008 Effluent Guidelines 
Program Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of Availability of Preliminary 2008 Effluent Guidelines 
Program Plan.

-----------------------------------------------------------------------

SUMMARY: EPA establishes national, technology-based regulations known 
as effluent guidelines and pretreatment standards to reduce pollutant 
discharges from categories of industry discharging directly to waters 
of the United States or discharging indirectly through Publicly Owned 
Treatment Works (POTWs). The Clean Water Act (CWA) sections 301(d), 
304(b), 304(g), and 307(b) require EPA to annually review these 
effluent guidelines and pretreatment standards. This notice presents 
EPA's 2007 review of existing effluent guidelines and pretreatment 
standards. 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 2008 Effluent 
Guidelines Program Plan (``preliminary 2008 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. EPA is 
soliciting comment on its preliminary 2008 Plan and on its 2007 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 December 31, 2007.

ADDRESSES: Submit your comments, data and information for the 2007 
annual review of existing effluent guidelines and pretreatment 
standards and the preliminary 2008 Plan, identified by Docket ID No. 
EPA-HQ-OW-2006-0771, by one of the following methods:
    (1) www.regulations.gov. Follow the on-line instructions for 
submitting comments.
    (2) E-mail: [email protected], Attention Docket ID No. EPA-HQ-OW-
2006-0771.
    (3) Mail: Water Docket, Environmental Protection Agency, Mailcode: 
4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention 
Docket ID No. EPA-HQ-OW-2006-0771. 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-2006-0771. 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-2006-
0771. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
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

[[Page 61336]]

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 
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 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 2008 Effluent Guidelines 
Program Plan: ``Technical Support Document for the Preliminary 2008 
Effluent Guidelines Program Plan,'' EPA-821R-07-007, DCN 04247, October 
2007.

FOR FURTHER INFORMATION CONTACT: Mr. Carey A. Johnston at (202) 566-
1014 or [email protected].

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 2007 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 
and 307(b)
VI. EPA's 2008 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 
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 2008 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 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).
     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 2007 review of existing effluent 
guidelines and pretreatment standards under CWA sections 301(d), 
304(b), 304(g) and 307(b). This notice also provides EPA's preliminary 
thoughts concerning its 2008 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 2008 Effluent Guidelines Program Plan 
(``preliminary 2008 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

[[Page 61337]]

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 
performance 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 
are 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)
    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 
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 Are 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) requires EPA to review its 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 
non-trivial amounts of 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

[[Page 61338]]

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.\1\ 
See CWA section 304(m)(1)(C). 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).
---------------------------------------------------------------------------

    \1\ EPA recognizes that one court--the U.S. District Court for 
the Central District of California--has found that EPA 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). However, EPA continues to believe that the 
mandatory duty under section 304(m)(1)(C) is limited to providing a 
schedule for taking final action in effluent guidelines rulemaking--
not necessarily promulgating effluent guidelines--within three 
years, and has appealed this decision.
---------------------------------------------------------------------------

    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 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)(2) and 304(b)(4), respectively. For nearly three 
decades, EPA has implemented sections 301 and 304 through the 
promulgation of effluent limitations guidelines, resulting in 
regulations for 56 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 section 304(b), 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 2008 annual 
pretreatment standards review in the notice containing the Agency's 
2008 annual review of existing effluent guidelines and the final 2008 
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 2007 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 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), and 
307(b)?

1. Overview
    In its 2007 annual review, EPA reviewed all industrial categories 
subject to existing effluent limitations guidelines and pretreatment 
standards, representing a total of 56 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 four industrial categories prioritized for 
further review in the final 2006 Effluent Guidelines Program Plan 
(December 21, 2006; 71 FR 76644) 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).
    As reported in the final 2006 Effluent Guidelines Program Plan 
(December 21, 2006; 71 FR 76644), EPA also continued or began work on 
four detailed studies as part of the 2007 annual review: Steam Electric 
Power Generating (Part 423), Coal Mining (Part 434), Oil and Gas 
Extraction (Part 435) (only to assess whether to include coalbed 
methane extraction as a new subcategory), and Hospitals (Part 460).\2\
---------------------------------------------------------------------------

    \2\ 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 Services 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.
---------------------------------------------------------------------------

    Together, these reviews discharged EPA's obligations to annually 
review both existing effluent limitations guidelines for direct 
dischargers under CWA sections 301(d) and 304(b) 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 is not identifying any existing categories for 
effluent guidelines rulemaking at this time.
2. How did EPA's 2006 annual review influence its 2007 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, during its 2005 
and 2006

[[Page 61339]]

annual reviews EPA started a detailed study of the Steam Electric Power 
Generating (Part 423) category. At the conclusion of the 2006 annual 
review EPA indicated that it would continue the detailed study of the 
Steam Electric Power Generating (Part 423) category and begin detailed 
studies for the following three industrial categories: Coal Mining 
(Part 434), 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 Services Industry 
detailed study). In addition, EPA identified two other industrial 
categories, Ore Mining and Dressing (Part 440) and Textile Mills (Part 
410), at the conclusion of the 2006 annual review as candidates for 
``preliminary category reviews'' in the 2007 review based on the toxic 
discharges reported to the Toxics Release Inventory (TRI) and Permit 
Compliance System (PCS). These are categories for which EPA 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 2006 annual review with its final 2006 Plan (December 21, 2006; 71 
FR 76644), making the data collected available for public comment. 
Docket No. EPA-HQ-OW-2004-0032. EPA used the findings, data and 
comments on the 2006 annual review to inform its 2007 annual review. 
The 2007 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 2007 annual reviews of 
existing effluent guidelines and pretreatment standards?
a. Screening-Level Review
    The first component of EPA's 2007 annual review consisted of a 
screening-level review of all industrial categories subject to existing 
effluent guidelines or pretreatment standards. As a starting point for 
this review, EPA examined screening-level data from its 2007 annual 
reviews. In its 2007 annual reviews, EPA focused its efforts on 
collecting and analyzing 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). In particular, 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 and PCS. 
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 toxic and non-conventional 
pollutant discharges to human health or the environment. For the 2007 
annual reviews, EPA used the most recent PCS and TRI data (2004). The 
full description of EPA's methodology for the 2007 screening-level 
review is presented in the Technical Support Document (TSD) for the 
preliminary 2008 Plan (see DCN 04247) and in the Docket (see EPA-HQ-OW-
2006-0771) accompanying this notice.
    EPA is continuously investigating and solicits comment on how to 
improve its analyses. In particular, EPA recently conducted a peer 
review of the TWF methodology and the Agency's use of TWFs in effluent 
guidelines program planning. An independent panel of scientific experts 
was asked to provide comment on the appropriateness of the TWF 
calculations and the quality and hierarchy of the data used in 
developing individual TWFs. EPA is currently in the process of 
reviewing and responding to the peer reviewer's comments. EPA is also 
in the process of updating the following document, Draft Toxic 
Weighting Factor Development in Support of CWA 304(m) Planning Process, 
EPA-HQ-OW-2004-0032-1634, to address some of the peer reviewers 
concerns. EPA plans to release the peer review report with the Agency's 
response as soon as it's completed, but no later than when the final 
2008 304(m) Plan is released. EPA also is exploring how best to 
communicate the uncertainty inherent with incomplete data regarding 
individual TWFs. EPA will continue to update individual TWFs as new 
information becomes available.
    EPA also developed a quality assurance project plan (QAPP) for its 
use of TRI and PCS data in the 2007 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 04422). 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 2004 
discharge data reported to TRI and PCS) 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 and PCS 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 
marked ``(3)'' in the ``Findings'' column in Table V-1 in section V.B.4 
of today's notice).
    In order to further focus its inquiry during the 2007 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 today's notice). 
For example, EPA excluded facilities that are associated with the 
Chlorine and Chlorinated Hydrocarbon (CCH) Manufacturing effluent 
guidelines rulemaking (formerly known as the ``Vinyl Chloride and 
Chlor-Alkali Manufacturing'' effluent guidelines rulemaking) currently 
underway from its 2006 hazard assessment of the Organic Chemicals, 
Plastics, and Synthetic Fibers (OCPSF) and Inorganic Chemicals point 
source categories to which CCH facilities belong.
    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

[[Page 61340]]

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 56 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 to the category in a subsequent review. EPA identified no such 
instance during the 2007 annual review.
    EPA also applied a lower priority for potential revision at this 
time to categories for which EPA lacked sufficient data to determine 
whether revision would be appropriate. For industrial categories marked 
``(5)'' in the ``Findings'' column in Table V-1 in section V.B.4 of 
today's notice, EPA lacks sufficient information at this time on the 
magnitude of the toxic-weighted pollutant discharges associated with 
these categories. 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 
2008 Plan (DCN 04247) 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 today's notice, EPA had sufficient 
information on the toxic-weighted pollutant discharges associated with 
these categories to start or continue a detailed study of these 
industrial categories in the 2007 annual review. 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 2007 annual review, EPA began or continued 
detailed studies of four such categories.
    As part of its 2007 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 today's 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 effluent 
guidelines rulemaking. Individual permit requirements can be better 
tailored to these few facilities and may take considerably less time 
and resources to establish than a national effluent guidelines 
rulemaking. 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 04247). 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. For example, EPA developed 
and distributed a 2007 technical document to NPDES permit writers in 
order to support the development of effluent limitations for facilities 
in the dissolving kraft (Subpart A) and dissolving sulfite (Subpart D) 
subcategories of the pulp and paper point source category (40 CFR Part 
430) (see DCN 04167). As of the beginning of 2006, there were four 
affected facilities in these two subcategories, two in Florida and one 
each in Georgia and Washington. EPA indicated in the final 2006 Plan 
(see December 21, 2006; 71 FR 76651-76652) that it would provide 
support to permit writers in establishing facility-specific effluent 
limits for these subcategories based on their Best Professional 
Judgment (BPJ) in lieu of finalizing its 1993 effluent guidelines 
rulemaking (see December 17, 1993; 58 FR 44078). 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 56 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. See DCN 04247.

[[Page 61341]]

    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 working to 
develop 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), and 307(b) (see EPA-HQ-OW-2004-
0032-2344). 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 2006 Plan EPA identified two 
additional categories with potentially high TWPE discharge estimates 
for further investigation (``preliminary category review'') in the 2007 
annual review: Ore Mining and Dressing (Part 440) and Textile Mills 
(Part 410) (i.e., EPA identified these categories with ``(5)'' in the 
column entitled ``Findings'' in Table V-1, Page 76657 of the final 2006 
Plan). From its 2007 annual review, EPA is identifying the Centralized 
Waste Treatment (Part 437) and Waste Combustors (Part 444) categories 
for preliminary category reviews in the 2008 annual review.
    In conducting these preliminary category reviews EPA uses the same 
types of data sources used for the detailed studies but in less depth. 
EPA typically performs a further assessment of the pollutant discharges 
before starting a detailed study of an 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. EPA is not conducting 
a detailed study for these categories at this time because EPA needs 
additional information regarding these industries to determine whether 
a detailed study is warranted.
c. Detailed Study of Four Categories
    In addition to conducting a screening-level review of all existing 
categories, EPA started or continued detailed studies of four 
categories: Steam Electric Power Generating (Part 423), Coal Mining 
(Part 434), 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 Services Industry 
detailed study). For these industries, EPA gathered and analyzed 
additional data on pollutant discharges, economic factors, and 
technology issues during its 2007 annual review. EPA examined: (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 and PCS 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 (11) stakeholder comments (see DCN 04247). 
Additionally, in order to evaluate available and affordable treatment 
technology options for the coalbed methane extraction industry sector, 
EPA intends to submit an Information Collection Request (ICR) to the 
Office of Management and Budget (OMB) for its review and approval prior 
to publication of the final 2008 Plan.
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 2007 annual review at the time of publication of the 
final 2006 Plan to provide the public with an opportunity to submit 
additional information to assist the Agency in its 2007 annual review. 
These public comments are in the supporting docket (EPA-HQ-OW-2006-
0771, www.regulations.gov) and summarized in the TSD for the 
preliminary 2008 Plan (see DCN 04247).

B. What Were EPA's Findings From its 2007 Annual Review for Categories 
Subject to Existing Effluent Guidelines and Pretreatment Standards?

1. Screening-Level Review
    In its 2007 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 today's notice for a summary of EPA's findings with respect to 
each existing category; see also the TSD for the preliminary 2008 Plan 
(``TSD''). Out of the categories subject only to the screening level 
review in 2007, EPA is not identifying any for effluent guidelines 
rulemaking

[[Page 61342]]

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.
    In the 2007 annual review EPA listed 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 presents a summary of EPA's 
review of these eleven industrial categories (see DCN 04247).
2. Detailed Studies
    In its 2007 annual review, EPA started or continued detailed 
studies of four industrial point source categories with existing 
effluent guidelines and pretreatment standards: Steam Electric Power 
Generating (Part 423), Coal Mining (Part 434), 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 Services Industry detailed study). EPA is 
investigating whether the pollutant discharges reported to TRI and PCS 
for 2004 accurately reflect the current discharges of the industry. EPA 
is also analyzing the reported pollutant discharges, and 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. EPA will use these detailed studies to determine whether 
EPA should identify in the final 2008 Plan (or a future Plan) any of 
these industrial categories for possible revision of their existing 
effluent guidelines and pretreatment standards. EPA's reviews of three 
of these four categories are described below and its review of 
hospitals is described in section VII.B (Health Services Industry 
detailed study).
a. Steam Electric Power Generating (Part 423)
    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 a thermal cycle employing the steam 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 November 19, 1982; 47 FR 52290).
    EPA previously found that facilities in the Steam Electric Power 
Generating point source category collectively discharge relatively high 
amounts of toxic pollutants (as measured in toxic-weighted pound 
equivalents (TWPE)). See Tables 5-3 and 5-4 of the TSD for the final 
2006 Plan, EPA-HQ-OW-2004-0032-2782, and Section 5.4.4.7 of the TSD for 
the final 2004 Plan, EPA-HQ-OW-2003-0074-1346 through 1351. The 2007 
annual review again identified this category as the second-largest 
discharger of toxic pollutants (see DCN 04247). EPA also determined 
that PCS and TRI data provide an incomplete picture of the wastewaters 
generated by the regulated steam electric industry. For example, EPA 
anticipates greater amounts of nitrogen compounds, selenium, and other 
metals, most of which are not regulated by the effluent guidelines, and 
therefore, may not be reported to TRI or PCS, in steam electric 
wastewaters as a result of the increasing use of air pollution controls 
(see Interim Detailed Study Report for the Steam Electric Power 
Generating Point Source Category, November 2006, EPA-HQ-OW-2004-0032-
2781). Consequently, EPA focused on supplementing its review of PCS and 
TRI data for this category with additional data collection as described 
below and in the supporting docket (see DCN 04247).
    The detailed study for the Steam Electric Power Generating point 
source category is mainly focused on: (1) Characterizing the mass and 
concentrations of pollutants in wastewater discharges from coal-fired 
steam electric facilities; and (2) identifying the pollutants that 
comprise a significant portion of the category's TWPE discharge 
estimate and the corresponding industrial operation. Waste streams of 
particular interest include cooling water, fly ash and bottom ash 
wastes, coal pile runoff, and discharges from wet air pollution control 
devices [e.g., wet flue gas desulfurization (FGD)]. EPA's previous 
annual reviews have identified that: (1) The TWPE discharge estimate 
for this category is predominantly driven by the metals present in 
wastewater discharges; and (2) the waste streams contributing the 
majority of these metals are associated with ash handling and wet FGD 
systems (see EPA-HQ-OW-2004-0032-2781). Other potential sources of 
metals include coal pile runoff, metal/chemical cleaning wastes, coal 
washing, and certain low volume wastes. EPA is collecting data for the 
detailed study through facility inspections, wastewater sampling, a 
data request that was sent to a limited number of companies, and 
various secondary data sources (see DCN 04711).
    EPA is conducting wastewater sampling of ash ponds and FGD 
wastewater treatment systems at several steam electric facilities. 
Samples collected are being analyzed for metals and classical 
pollutants, such as total suspended solids and nitrogen. EPA selected 
the plants for sampling based on characteristics and process 
configurations of interest. Factors taken into consideration include 
the type of fuel, type of wet FGD systems in operation, fly ash 
handling practices, nitrogen oxides (NOX) controls (e.g., 
selective catalytic reduction systems), and wastewater treatment 
technologies. See the following document for information about the 
sample collection methodologies, analytes of interest, and laboratory 
analytical methods: ``Generic Sampling and Analysis Plan for Coal-Fired 
Steam Electric Power Plants,'' DCN 04296.
    EPA also collected facility specific information using a data 
request conducted under authority of CWA section 308 (see DCN 04711). 
EPA sent this data request to nine companies that operate a number of 
coal-fired power plants with wet FGD systems. The data request 
complements the wastewater sampling effort as it collects facility-
specific information about wastewaters EPA is not sampling. 
Additionally, the data request collects detailed information about 
wastewater generation rates and management practices for wastewaters 
included in EPA's sampling program. The data request seeks information 
on selected wastewater sources, air pollution controls, wastewater 
management and treatment practices, water reuse/recycle, and treatment 
system capital and operating costs.
b. Coal Mining (Part 434)
    As discussed in the ``Notice of Availability of Final 2006 Effluent 
Guidelines Program Plan'' EPA is conducting a detailed study during the 
2007 and 2008 annual reviews to evaluate the merits of comments by 
states, industry, and a public interest group that urged revisions to 
pollutant limitations in the Coal Mining effluent guidelines (40 CFR 
Part 434) (see December 21, 2006; 71 FR 76644-76667). The Interstate 
Mining Compact Commission, which represents mining agencies in 35 
states, together with a few individual state agencies, and a few

[[Page 61343]]

mining companies, asked EPA to remove the current manganese limitations 
and allow permittees to employ best management practices as necessary 
to reduce manganese discharges based on the quality of receiving 
waterbodies.
    The public interest group, the Environmental Law and Policy Center, 
asked EPA to place greater controls on coal mining discharges of 
sulfates, chlorides, mercury, cadmium, manganese, selenium, and other 
unspecified pollutants.
    State and industry commentors cited the following factors in 
support of their comments: (1) New, more stringent coal mining 
reclamation bonding requirements on post-closure discharges; (2) 
evidence that current manganese limitations are more stringent than 
necessary to protect aquatic life; (3) perception that high cost of 
manganese treatment is causing permittees to default on their post-
closure bonds; and (4) perception that treatment with chemical addition 
may complicate permit compliance, especially after a mine is closed. 
The public interest group referenced a study by EPA Region 5 on 
potential adverse impacts of the discharge of sulfates on aquatic life 
(see DCN 2487).
    EPA initiated the Coal Mining Detailed Study in January 2007. The 
study follows the framework presented in the Detailed Study Plan, a 
draft of which the Agency placed into the docket (see DCN 2488) during 
the Fall of 2006. EPA revised and finalized the Detailed Study Plan in 
April 2007 to reflect public comments. The study will evaluate 
treatment technologies, costs, and pollutant discharge loads, as well 
as the effects of manganese and other pollutants on aquatic life. The 
study will also address the question of whether bonds are being 
forfeited because of the cost of manganese treatment by examining 
bonding and trust fund requirements, past bond forfeiture rates, future 
potential bond forfeiture rates, and the issues related to state 
assumption of long-term water treatment responsibilities for mines 
where the bonds have been forfeited. As outlined in the Detailed Study 
Plan, EPA has framed study questions based on public comment, 
identified data sources to help answer the study questions, developed a 
methodology for estimating treatment costs and discharge loads, and 
initiated data collection activities with the Interstate Mining Compact 
Commission, state agencies, and the Office of Surface Mining, 
Reclamation, and Enforcement within the U.S. Department of the 
Interior.
    The Coal Mining Detailed Study consists of several interim products 
which will be summarized in the 2008 final report: An industry 
financial profile which will include information about the types and 
locations of mines, ownership, and revenues; a summary of state and 
federal permitting requirements; a summary of bonding and trust fund 
requirements for control of water discharges from post-mining sites; an 
analysis of bond forfeiture and the consequences for the states; an 
analysis of treatment technologies, costs, and pollutant discharge 
loads; and an environmental summary of the aquatic life effects of 
manganese and other pollutants.
    During 2007, EPA plans to complete data collection, complete the 
industry financial profile, begin analysis of bonding and trust fund 
issues, and begin analysis of treatment costs and discharge loads. 
During 2008, EPA will complete analysis of bonding and trust fund 
issues, complete estimates of treatment costs and discharge loads, 
complete its analysis of bond defaults, complete the summary of 
environmental impacts, and complete the final report.
    EPA will use the results of the Coal Mining Detailed Study, which 
will be summarized in the 2008 annual review, to help decide 
appropriate regulatory steps.
c. Oil and Gas Extraction (Part 435) (Only To Assess Whether To Include 
Coalbed Methane Extraction as a New Subcategory)
    As discussed in the 2006 annual review, EPA is conducting a 
detailed study of the coalbed methane industry to determine whether to 
revise the effluent guidelines for the Oil and Gas Extraction category 
to include limits for this potential new subcategory (see December 21, 
2006; 71 FR 76656). The coalbed methane (CBM) industrial sector is an 
important part of the Nation's domestic source of natural gas. In 2004, 
CBM accounted for about 10.4% of the total U.S. natural gas production 
and is expanding in multiple basins across the Nation. 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. Based on Bureau of Land Management (BLM) and 
States' projections this will likely involve over 100,000 CBM wells. 
The growth in the CBM industrial sector can be explained by the 
decrease in drilling and transmission costs in getting the CBM to 
market, clarity of gas ownership, and the increase of long-term natural 
gas prices. See Section 6 of the TSD for the final 2006 Plan, EPA-HQ-
OW-2004-0032-2782, December 2006. EPA identified the CBM extraction 
industry as a potential new subcategory of the Oil and Gas Extraction 
category (40 CFR 435) in the 2006 annual review (see December 21, 2006; 
71 FR 76656).
    Coalbed methane (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; 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 will vary 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 used for quantifying the total 
amount of dissolved solids in a wastewater and that may also be used to 
quantify and control the amount of pollutants in CBM produced waters. 
Equally important in preventing environmental damage is controlling the 
sodicity of the CBM produced waters. Sodicity is often quantified as 
the sodium adsorption ratio (SAR), which is expressed as the ratio of 
sodium ions to calcium and magnesium ions, and is an important factor 
in controlling the produced water's suitability for irrigation and its 
potential for degrading soils. All of these parameters can potentially 
affect environmental impacts as well as potential beneficial uses of 
CBM produced water.
    Impacts to surface water from discharges of CBM produced waters can 
be severe depending upon the quality of the CBM produced waters. Saline 
discharges have variable effects depending on the biology of the 
receiving stream. Some waterbodies and watersheds may be able to absorb 
the discharged water while others are sensitive to large amounts of 
low-quality CBM water. For example, large surface waters with 
sufficient dilution capacity or marine waters are less sensitive to 
saline discharges than smaller freshwater surface waters. Discharge of

[[Page 61344]]

these CBM produced waters may also cause erosion and in some cases 
irreversible soil damage from elevated TDS concentrations and SAR 
values. This may limit future agricultural and livestock uses of the 
water and watershed.
    Currently, regulatory controls for CBM produced waters vary from 
State to State and permit to permit (see EPA-HQ-OW-2004-0032-2782, 
2540). There is very limited permit information (e.g., effluent limits, 
restrictions) in PCS and TRI for this industrial sector. Consequently, 
EPA is gathering additional information from State NPDES permit 
programs and industry on the current regulatory controls across the 
different CBM basins.
    EPA indicated in the 2006 annual review that it will need to gather 
more specific information as part of a detailed review of the coalbed 
methane industry in order to determine whether it would be appropriate 
to conduct a rulemaking to potentially revise the effluent guidelines 
for the Oil and Gas Extraction category to include limits for CBM. In 
particular, EPA will need to collect technical, economic, and 
environmental data from a wide range of CBM operations (e.g., 
geographical differences in the characteristics of CBM-produced waters, 
current regulatory controls, potential environmental impacts, 
availability and affordability of treatment technology options). 
Accordingly, EPA intends to submit an Information Collection Request 
(ICR) to the Office of Management and Budget (OMB) for its review and 
approval under the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, et 
seq. EPA is working with stakeholders in the design of this industry 
survey (see DCN 04247). EPA solicits comment on the potential scope and 
methodology of this ICR. See section IX.C for a list of questions that 
EPA will use to develop the ICR. EPA expects to distribute the ICR in 
late summer of 2008.
    EPA is also collecting discharge related information from five site 
visit trips to support this detailed study (see DCN 04247), and 
collecting data from other secondary sources to supplement its current 
understanding of the CBM industrial sector. EPA is specifically 
gathering data on available and affordable beneficial use and treatment 
technology options, and potential impacts of CBM produced water 
discharges. A summary of the data collected for this detailed study is 
provided in the TSD for the 2007 annual review.
3. Results of Preliminary Category Reviews
    During the 2006 annual review, EPA identified two categories with 
potentially high TWPE discharge estimates for preliminary category 
review: Ore Mining and Dressing (Part 440) and Textile Mills (Part 410) 
(i.e., EPA identified these categories with ``(5)'' in the column 
entitled ``Findings'' in Table V-1, Page 76657 of the final 2006 Plan). 
EPA concluded its preliminary category review of the Textile Mills 
category in the 2007 annual review and has determined that the Textile 
Mills category is not among those 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) (see DCN 04247). As such, it has a low priority for 
effluent guideline revision at this time. EPA has yet to complete its 
preliminary category review of the Ore Mining and Dressing category. 
Section IX of this notice and the TSD 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.
    Additionally and as noted above, EPA identified two additional 
categories for preliminary category review as a result of the 2007 
annual review: Centralized Waste Treatment (Part 437) and Waste 
Combustors (Part 444). EPA applied less scrutiny to these categories in 
the 2002, 2004, and 2006 biennial planning cycles as EPA effluent 
guidelines and pretreatment standards for these categories were 
promulgated in 2000. As discussed in section V.A.3.a, EPA generally 
applies less scrutiny to industrial categories for which EPA has 
promulgated effluent guidelines or pretreatment standards within the 
past seven years of the current biennial review. However, because this 
seven year period has elapsed and because of the relative high hazard 
ranking of these categories, EPA plans to conduct a preliminary 
category review of both categories in its 2008 annual review. Section 
IX and the TSD list data and information that EPA would like to collect 
on the pollutant discharges and potential treatment technology options 
for these two categories in order to complete these preliminary 
category reviews.
    EPA is not identifying any of these three categories (Ore Mining 
and Dressing, Centralized Waste Treatment, and Waste Combustors) for an 
effluent guidelines rulemaking in this preliminary 2008 Plan. However, 
EPA is identifying these categories for new or on-going preliminary 
category reviews in the 2008 annual review (i.e., these categories are 
marked with ``(5)'' in the ``Findings'' column in Table V-1 in section 
V.B.4 of today's notice). The docket accompanying this notice presents 
a summary of EPA's findings on these three industrial categories (see 
DCN 04247).
4. Summary of 2007 Annual Review Findings
    In its 2007 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 
in light of effluent guidelines rulemakings and detailed studies 
currently in progress, EPA is not identifying any existing categories 
for effluent guidelines rulemaking. EPA is, however, conducting 
detailed studies for four existing categories: Steam Electric Power 
Generating, Coal Mining, Oil and Gas Extraction (only with respect to 
coalbed methane), and Hospitals (part of the Health Services Industry 
detailed study).
    A summary of the findings of the 2007 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 2008 annual review to determine whether to identify the category 
for effluent guidelines rulemaking.

[[Page 61345]]

    (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 (DCN 04247) for EPA's data needs for industries in this category.

  Table V-1.--Findings From the 2007 Annual Review of Effluent Guidelines and Pretreatment Standards Conducted
                                Under Section 301(d), 304(b), 304(g), and 307(b)
----------------------------------------------------------------------------------------------------------------
                                                 Industry category (listed
                    No.                               alphabetically)             40 CFR Part   Findings[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              (5)
9.........................................  Coal Mining[Dagger]...............             434      (1) and (4)
10........................................  Coil Coating......................             465              (3)
11........................................  Concentrated Animal Feeding                    412              (1)
                                             Operations (CAFO).
12........................................  Concentrated Aquatic Animal                    451              (1)
                                             Production.
13........................................  Copper Forming....................             468              (3)
14........................................  Dairy Products Processing.........             405              (3)
15........................................  Electrical and Electronic                      469              (3)
                                             Components.
16........................................  Electroplating....................             413              (1)
17........................................  Explosives Manufacturing..........             457              (3)
18........................................  Ferroalloy Manufacturing..........             424              (3)
19........................................  Fertilizer Manufacturing..........             418              (3)
20........................................  Glass Manufacturing...............             426              (3)
21........................................  Grain Mills.......................             406              (3)
22........................................  Gum and Wood Chemicals............             454              (3)
23........................................  Hospitals \3\.....................             460              (4)
24........................................  Ink Formulating...................             447              (3)
25........................................  Inorganic                                      415      (1) and (3)
                                             Chemicals[Dagger][Dagger].
26........................................  Iron and Steel Manufacturing......             420              (1)
27........................................  Landfills.........................             445              (3)
28........................................  Leather Tanning and Finishing.....             425              (3)
29........................................  Meat and Poultry Products.........             432              (1)
30........................................  Metal Finishing...................             433              (1)
31........................................  Metal Molding and Casting.........             464              (3)
32........................................  Metal Products and Machinery......             438              (1)
33........................................  Mineral Mining and Processing.....             436              (3)
34........................................  Nonferrous Metals Forming and                  471              (3)
                                             Metal Powders.
35........................................  Nonferrous Metals Manufacturing...             421              (3)
36........................................  Oil and Gas                                    435      (1) and (4)
                                             Extraction[dagger][dagger].
37........................................  Ore Mining and Dressing...........             440              (5)
38........................................  Organic Chemicals, Plastics, and               414      (1) and (3)
                                             Synthetic Fibers[Dagger][Dagger].
39........................................  Paint Formulating.................             446              (3)
40........................................  Paving and Roofing Materials (Tars             443              (3)
                                             and Asphalt).
41........................................  Pesticide Chemicals...............             455              (2)
42........................................  Petroleum Refining................             419              (3)
43........................................  Pharmaceutical Manufacturing......             439              (1)
44........................................  Phosphate Manufacturing...........             422              (3)
45........................................  Photographic......................             459              (3)
46........................................  Plastic Molding and Forming.......             463              (3)
47........................................  Porcelain Enameling...............             466              (3)
48........................................  Pulp, Paper, and Paperboard.......             430              (2)
49........................................  Rubber Manufacturing..............             428              (3)
50........................................  Soaps and Detergents Manufacturing             417              (3)
51........................................  Steam Electric Power Generating...             423              (4)
52........................................  Sugar Processing..................             409              (3)
53........................................  Textile Mills.....................             410              (3)
54........................................  Timber Products Processing........             429              (3)
55........................................  Transportation Equipment Cleaning.             442              (3)
56........................................  Waste Combustors..................             444              (5)
----------------------------------------------------------------------------------------------------------------
\3\ 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 Services 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.
[dagger] Note: The descriptions of the ``Findings'' codes are presented immediately prior to this table.

[[Page 61346]]

 
[Dagger] Note: Two codes (``(1)'' and ``(4)'') are used for this category as both codes are applicable to this
  category and do not overlap. The first code (``(1)'') refers to the recent effluent guidelines rulemaking
  (January 23, 2002; 67 FR 3370), which created two new subcategories [Coal Remining (Subpart G) and Western
  Alkaline Coal (Subpart H)]. The second code (``(4)'') refers to the on-going detailed study described above
  that is examining the issues identified by commenters to the preliminary 2006 Plan, which are different from
  those addressed in the previous rulemaking.
[dagger] [dagger] Note: Two codes (``(1)'' and ``(4)'') are used for this category as both codes are applicable
  to this category and do not overlap. The first code (``(1)'') refers to the recent effluent guidelines
  rulemaking (January 22, 2001; 66 FR 6850), which established BAT limitations and NSPS for non-aqueous drilling
  fluids. The second code (``(4)'') refers to the on-going detailed study described above that is examining the
  issues identified by commenters to the preliminary 2006 Plan, which are different from those addressed in the
  previous rulemaking.
[Dagger] [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 on-going 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.

VI. EPA's 2008 Annual Review of Existing Effluent Guidelines and 
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), 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 2007 review. 
The information gathered during the 2007 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 2008 
annual review. See Table V-1 in section V.B.4 of today's notice. In 
2008, EPA intends to again conduct a screening-level analysis of all 56 
categories and compare the results against those from previous years. 
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 categories with existing 
effluent guidelines and pretreatment standards: Steam Electric Power 
Generating (Part 423), Coal Mining (Part 434), 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 Services Industry detailed study). EPA is 
identifying three categories (Ore Mining and Dressing, Centralized 
Waste Treatment, and Waste Combustors) for a preliminary category 
review in the 2008 annual review. EPA invites comment and data on the 
four detailed studies, the three preliminary category reviews, and all 
remaining point source categories.

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.
    Historically, for most effluent guidelines rulemakings, EPA 
determines the potential for ``pass through'' by comparing the 
percentage of the pollutant removed by well-operated POTWs achieving 
secondary treatment with the percentage of the pollutant removed by 
wastewater treatment options that EPA is evaluating as the bases for 
categorical pretreatment standards (January 28, 1981; 46 FR 9408).
    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

[[Page 61347]]

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 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 04247). 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, 
commenters on the 2004 and 2006 annual reviews raised concerns about 
discharges of emerging pollutants of concern such as endocrine 
disruptors and mercury discharges from dentists and health service 
facilities and urged EPA to consider establishing effluent guidelines 
and pretreatment standards for such discharges. In response to these 
comments, EPA investigated the Health Services Industry in its 2006 
annual review and found that it did not have readily available 
information to make an informed decision on the potential for ``pass 
through'' or ``interference.'' Consequently, EPA identified this 
industrial category for detailed study in its 2007 and 2008 annual 
reviews. EPA also solicits comment and data on all industrial sectors 
not currently subject to categorical pretreatment standards for its 
2008 review. Finally, EPA solicits comment on methods for aggregating 
pollutant discharge data collected by pretreatment programs to further 
inform its future review of industry categories without categorical 
pretreatment standards.

B. Health Services Industry Detailed Study

    The Health Services Industry includes establishments engaged in 
various aspects of human health (e.g. hospitals, dentists, long-term 
care facilities) and animal health (e.g., veterinarians). Health 
services establishments fall under SIC major group 80 ``Health 
Services'' and industry group 074 ``Veterinary Services.'' According to 
the 2002 Census, there are over 475,000 facilities in the Health 
Services Industry (see EPA-HQ-OW-2004-0032-1615). EPA is including the 
following sectors within the Health Services Industry in its detailed 
study: Offices and Clinics of Dentists; Doctors and Mental Health 
Practitioners; Nursing and Personal Care Facilities (long-term care 
facilities); Hospitals and Clinics; Medical Laboratories and Diagnostic 
Centers; and Veterinary Care Services (see August 29, 2005; 70 FR 
51054).
    All these sectors require services to be delivered by trained 
professionals for the purpose of providing health care and social 
assistance for individuals or animals. These entities may be free 
standing or part of a hospital or health system and may be privately or 
publicly owned. The services can include diagnostic, preventative, 
cosmetic, and curative health services.
    The vast majority of establishments in the health services 
industries are not subject to categorical limitations and standards. In 
1976, EPA promulgated 40 CFR 460 which only applies to direct 
discharging hospitals with greater than 1,000 occupied beds. Part 460 
did not establish pretreatment standards for indirect discharging 
facilities.
    In evaluating the health services industries to date, EPA has found 
little readily available information. Both PCS and TRI contain sparse 
information on health care service establishments. For 2002, PCS only 
has data for two facilities which are considered ``major'' sources of 
pollutants and only Federal facilities in the healthcare industry are 
required to report to TRI. In 1989, EPA published a Preliminary Data 
Summary (PDS) for the Hospitals Point Source Category (see EPA-HQ-OW-
2004-0032-0782). Also, EPA's Office of Enforcement and Compliance 
Assistance (OECA) published a Healthcare Sector Notebook in 2005 (see 
EPA-HQ-OW-2004-0032-0729). In addition, industry and POTWs have 
conducted studies to estimate pollutant discharges for some portions of 
this industry (e.g., dentists) (see EPA-HQ-OW-2004-0032-0772).
    Based on preliminary information, major pollutants of concern in 
discharges from health care service establishments include solvents, 
mercury, pharmaceuticals, endocrine-disrupting compounds (EDCs), and 
biohazards (e.g., items contaminated with blood) (see EPA-HQ-OW-2004-
0032-0729). The majority of the mercury originates from the following 
sources: amalgam used in dental facilities and medical equipment, 
laboratory reagents, and cleaning supplies used in healthcare 
facilities (see EPA-HQ-OW-2004-0032-0038 and 2391). EPA found little to 
no quantitative information on wastewater discharges of emerging 
pollutants of concern such as pharmaceuticals and EDCs but was able to 
identify some information on biohazards (see DCN 04274).
    As described above, the Health Services Industry is expansive and 
contains approximately half a million facilities. Because of the size 
and diversity of this category and other resource constraints, EPA 
decided to focus its detailed study on certain subcategories of 
dischargers. EPA selected its focus areas, for the most part, to 
respond to stakeholder concerns. The focus areas are:
     Dental mercury: EPA is focusing its evaluation on mercury 
discharges from the offices and clinics of dentists due to the 
potential hazard and bioaccumulative properties associated with 
mercury.
     Unused pharmaceuticals: EPA is focusing its evaluation on 
unused or leftover pharmaceuticals from health service facilities due 
to the growing concern over the discharge of pharmaceuticals into water 
and the potential environmental effects.
    Unused pharmaceuticals include dispensed prescriptions that 
patients do not use as well as materials that are beyond their 
expiration dates. It includes both human and veterinary drugs 
(including certain pesticides such as flea, tick, and lice controls). 
As a point of clarification, the term ``unused pharmaceuticals'' does 
not include excreted pharmaceuticals. In particular, EPA is evaluating 
disposed unused pharmaceutical practices from the following sectors:
     Physicians offices
     Nursing and personal care facilities (including long-term 
care facilities);
     Veterinary care services; and
     Hospitals and clinics.
    The Agency notes that it has an overall interest in mercury 
reduction and on July 5, 2006, issued a report titled, ``EPA's Roadmap 
for Mercury,'' (see DCN 03035). Among other things, EPA's report 
highlights mercury sources and describes progress to date in addressing 
mercury sources. Similarly, assessing pharmaceuticals in wastewater is 
part of the Agency's Strategic Plan (2006-2011) to meet its goals of 
clean and safe water, (see http://www.epa.gov/ocfo/plan/plan.htm). EPA 
is concerned about pharmaceuticals in the environment and is working on 
this issue in many different areas. Currently, the Agency is: (1) 
Developing analytical methods to measure pharmaceuticals in wastewater 
and biosolids; (2) studying the health and ecological effects of

[[Page 61348]]

pharmaceuticals on aquatic life and their occurrence in fish; and (3) 
engaged in determining the significance of consumer disposal of drugs 
to wastewater. Additionally, the Agency is considering amending its 
hazardous waste regulations to add hazardous pharmaceuticals to the 
universal waste system to facilitate its oversight of the disposal of 
pharmaceutical waste (40 CFR 273) (see RIN 2050-AG39, April 30, 2007; 
72 FR 23170).
    While stakeholders and EPA are concerned about EDC discharges, EPA 
has found only limited data on EDCs. In order to fill in some of these 
data gaps, in conjunction with its Health Services Industry detailed 
study, EPA is conducting a POTW study that, among other things, has the 
goal of developing wastewater analytical methods for certain 
pollutants, characterizing the presence of chemicals such as 
surfactants and pharmaceuticals in POTW wastewaters and evaluating POTW 
treatment technology effectiveness in reducing such pollutant 
discharges. To the extent that the results of the POTW studies become 
available during the term of this Health Services Industry detailed 
study, EPA will include relevant information in this study.
    The Health Services Study is described in more detail in EPA's 
Draft Detailed Study Plan for the Health Services Industry (see DCN 
05067) and Overview of EPA's Detailed Study of the Health Services (see 
DCN 05080). As explained there, EPA is researching the following 
questions/topics as they relate to disposal of mercury and unused 
pharmaceuticals into municipal sewer systems:
     What are the current industry practices in regards to 
disposal of unused pharmaceuticals and mercury? To what extent are each 
of these practices applied? What factors drive current practices?
     Are there federal, state, or local requirements or 
guidance for disposal of unused pharmaceuticals and/or mercury? What 
are these requirements?
     How are control authorities currently controlling (or not) 
disposal of unused pharmaceuticals and mercury via wastewater?
     To what extent do POTWs report pass through or 
interference problems related to unused pharmaceuticals or mercury 
discharges?
     What technologies are available: (1) As alternatives to 
wastewater disposal; and (2) to control pollutant discharges. Is there 
any qualitative or quantitative information on their efficiency?
     What Best Management Practices (BMPs) are used as 
alternatives to wastewater disposal and/or to control discharges and is 
there any qualitative or quantitative information on their efficiency?
     Is there any quantitative or qualitative information on 
the costs associated with identified technologies and/or BMPs?
1. Dental Mercury
    Across the United States, states and municipal wastewater treatment 
plants (publicly owned treatment works (POTWs)) are working toward the 
goal of reducing discharges of mercury into collection systems. Many 
studies have been conducted in an attempt to identify the sources of 
mercury entering these collection systems. According to the 2002 
Mercury Source Control and Pollution Prevention Program Final Report 
prepared for the National Association of Clean Water Agencies (NACWA), 
dental clinics are the main source of mercury discharges to POTWs. The 
American Dental Association (ADA) estimated in 2003 that 50% of mercury 
entering POTWs was contributed by dental offices.
    EPA estimates there are approximately 130,000 dental offices in the 
United States--almost all of which discharge their wastewater 
exclusively to POTWs. Mercury in dental wastewater originates from 
waste particles associated with the placement and removal of amalgam 
fillings. Most dental offices currently use some type of basic 
filtration system to reduce the amount of mercury solids passing into 
the sewer system. However, best management practices and the 
installation of amalgam separators may reduce discharges even further.
    Some states, regions, and POTWs have already implemented or are 
considering alternatives to reduce mercury discharges from dental 
offices. For example, a number of states have enacted legislation 
requiring the installation and operation of amalgam separators or use 
of best management practices (see DCN 04668). EPA Region 5 published 
guidance for permitting dental mercury discharges (see DCN 05024). The 
ADA has also adopted and published best management practices for its 
members. On October 2, 2007, the ADA updated its best management 
practices to include the use of amalgam separators (see DCN 05087). See 
DCN 04668 for a compilation of the information EPA has collected to 
date on existing guidance and requirements for dental mercury.
    In 2007, EPA has focused its efforts on collecting and compiling 
information on current mercury discharges from dental offices, best 
management practices (BMPs), and control technologies such as amalgam 
separators. For control technologies and BMPs, EPA has looked at the 
frequency with which each is currently used; their effectiveness in 
reducing discharges to POTWs; and the capital and annual costs 
associated with their installation and operation (see DCN 04851 and 
04852). EPA encourages all stakeholders to review the information 
collected to date and provide additional information, if available. EPA 
is particularly interested in quantitative information on the 
effectiveness and costs of implementing best management practices.
    At this time, EPA does not know if its investigation will lead to 
the development of national, categorical pretreatment standards for 
dental mercury discharges. While this is a possibility, EPA is aware of 
a number of successful local programs and has identified that there are 
many opportunities for pollution prevention and adoption of BMPs 
without federal regulation. It appears that the dental industry is 
already actively working towards voluntarily reducing its mercury 
discharges.
2. Unused Pharmaceuticals
    Stakeholders have expressed concern over the discharge of 
pharmaceuticals into water and its environmental effects. Recent 
studies have indicated the presence of pharmaceuticals in waters of the 
U.S. See Pharmaceuticals, Hormones, and Other Organic Wastewater 
Contaminants in U.S. Streams, USGS Fact Sheet FS-027-02, June 2002 (see 
DCN 04854). Recent studies have also shown the presence of 
pharmaceuticals directly downstream of POTWs (see DCN 05071). To date, 
EPA has found little quantitative information on the origin of 
pharmaceuticals in municipal wastewaters. There is even less data on 
the quantity of pharmaceuticals entering and leaving wastewater 
treatment plants. The discharge of pharmaceuticals to these treatment 
plants, with few exceptions, is not currently regulated or monitored.
    Health Services Industry facilities (e.g., hospitals, 
veterinarians, doctors, and long-term care facilities) may dispose of 
unused, expired, and unwanted medications (``unused pharmaceuticals'') 
down the drain or toilet, which then may pass through the POTW and on 
to surface waters. Given this concern, EPA plans to collect information 
from the Health Services Industry to better understand pharmaceutical 
discharges to POTWs and to make informed decisions. POTWs are not 
specifically designed to remove the wide range of

[[Page 61349]]

pharmaceuticals, and often the treatment plant removal efficiencies are 
unknown. The full spectrum of pharmaceuticals occurring in POTW 
effluent is not yet known, and for those that are present, the POTW 
removal efficiency is a function of the treatment technology employed 
and will vary from drug to drug. As a result, unused pharmaceuticals 
may have the potential to cause interference or to pass through 
municipal wastewater treatment plants.
    In order to obtain further quantitative information on unused 
pharmaceuticals in Health Service Industry wastewaters, EPA plans to 
send a data request to targeted long-term care facilities, hospitals, 
and veterinarians. EPA is interested in obtaining the records 
facilities keep to track disposal of unused pharmaceuticals and their 
quantities. EPA especially wants to know how much and how often unused 
pharmaceuticals are disposed of via the sink or toilet, and what drives 
such practices.
    There are best management practices (BMPs) and alternatives to 
disposing of pharmaceuticals into POTWs via sinks and toilets. 
Alternative disposal options include hazardous waste incinerators, 
regulated medical waste incinerators, and non-hazardous landfills 
(i.e., trash). Also, there are pharmacy take back programs via the mail 
and physical drop off locations (e.g., reverse distribution brokers or 
centers). These take back programs are typically only available for 
pharmaceuticals that have not been sold and are not available to 
consumers. EPA is exploring the utility of take back programs and has 
given a grant to the University of Maine Center on Aging to devise, 
implement and evaluate a mail back plan for consumers to return unused 
over the counter and prescription medications. A network of 75 
distribution points located at pharmacies will provide for mailer pick 
up and drop offs. Informational materials for pharmacists, staff and 
consumers regarding the mailers will be developed and distributed. In 
addition, the pilot will test the effectiveness of an educational 
campaign about the hazards to life, health, and the environment posed 
by improper storage and disposal of unused mediations.
    Many of the current disposal practices are driven by Federal 
requirements or guidance. In addition to Federal rules, there are state 
and local policies that influence disposal of unused pharmaceuticals. 
EPA will continue to evaluate disposal alternatives in context of the 
existing requirements which affect disposal decisions.
    At this time, EPA does not have enough information to know if this 
study will lead to the development of a national, categorical 
pretreatment standard for unused pharmaceuticals. While this is a 
possibility, EPA is gathering information on pollution prevention 
opportunities and BMPs that may provide a reasonable alternative to 
federal regulation. To aid EPA in its assessment of unused 
pharmaceuticals from the Health Services Industry, EPA requests comment 
on current practices. See section IX.

VIII. The Preliminary 2008 Effluent Guidelines Program Plan Under 
Section 304(m)

    In accordance with CWA section 304(m)(2), EPA is publishing this 
preliminary 2008 Plan for public comment prior to this publication of 
the final 2008 Plan.

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

1. Schedule for 2007 and 2008 Annual Reviews Under Section 304(b)
    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 2008 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 2007 annual review 
is the review cycle ending upon the publication of this preliminary 
2008 Plan.
    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 2007 annual review along with the 
preliminary 2008 Plan, EPA hopes to gather and receive data and 
information that will inform its reviews for 2008 and the final 2008 
Plan.
2. Schedule for Possible Revision of Effluent Guidelines Promulgated 
Under Section 304(b)
    EPA is currently conducting rulemakings 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) and 
Concentrated Animal Feeding Operations (rulemaking on BCT technology 
options for controlling fecal coliform and new source performance 
standards). EPA emphasizes that identification of the rulemaking 
schedules for these effluent guidelines does not constitute a final 
decision to revise the guidelines. EPA may conclude at the end of the 
formal rulemaking process--supported by an administrative record and 
following an opportunity for public comment--that effluent guidelines 
revisions are not appropriate for these categories. 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,

[[Page 61350]]

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.\4\ See 
CWA section 304(m)(1)(C).
---------------------------------------------------------------------------

    \4\ EPA recognizes that one court--the U.S. District Court for 
the Central District of California--has found that EPA 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). However, EPA continues to beileve that the 
mandatory duty under section 304(m)(l)(c) is limited to providing a 
schedule for concluding the effluent guidelines rulemaking--not 
necessarily promulgating effluent guidelines--within three years, 
and has appealed this decision.
---------------------------------------------------------------------------

    EPA is currently conducting rulemakings to determine whether to 
establish effluent guidelines for three potential new categories (see 
September 2, 2004; 69 FR 53705). Two of these categories--Airport 
Deicing Operations and Drinking Water Treatment--were identified as 
potential new categories in the final 2004 Plan. EPA initiated 
rulemaking for the third category--Construction and Development--
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). Although EPA 
respectfully disagrees with this decision, and does not believe that it 
is required to promulgate effluent guidelines for this potential new 
category, EPA is conducting the rulemaking ordered by the court pending 
appeal of the Court's decision. For the reasons discussed below, 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 and PCS. Facilities with 
data in TRI and PCS are identified by a four-digit SIC code (see DCN 
04247). EPA performs a crosswalk between the TRI and PCS data, 
identified with the four digit SIC code, and the 56 point source 
categories with effluent guidelines or pretreatment standards to 
determine if a four-digit SIC code is currently regulated by existing 
effluent guidelines (see DCN 04247). 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.
    First, section 304(m)(1)(B) specifically applies only to 
``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. 
As discussed below, 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 identifies in its biennial Plan only 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.
    The use of the term ``categories'' in other provisions of the CWA 
indicates that a ``category'' encompasses a broad array of industrial 
operations related by similarity of product or service provided. For 
example, CWA section 306(b)(1)(A) provides a list of ``categories of 
sources'' (for purposes of new source performance standards) that 
includes ``pulp and paper mills,'' ``petroleum refining,'' ``iron and 
steel manufacturing,'' and ``leather tanning and finishing.'' These 
examples suggest that a ``category'' is intended to encompass a 
diversity of facilities engaged in production of a similar product or 
provision of a similar service. See also CWA section 402(e) and (f) 
(indicating that ``categories'' are comprised of smaller subsets such 
as ``class, type, and size''). In the effluent guidelines program, EPA 
uses these factors, among others, to define ``subcategories'' of a 
larger industrial category.
    The legislative history of later amendments to CWA section 304 
indicates that Congress was aware that there was a distinction between 
``categories'' and ``subcategories'' in effluent guidelines. See Leg. 
Hist: Senate Committee on Environment and Public Works, A Legislative 
History of the Clean Water Act of 1977, prepared by the Environmental 
Policy Division of the Congressional Research Service of the Library of 
Congress (Comm. Print 1978) at 455 (indicating that BAT calls for the 
examination of ``each industry category or subcategory''). See also 
Chemical Manufacturers' Association v. EPA, 470 U.S. 116, 130 (1985) 
(interpreting this legislative history as ``admonish[ing] [EPA] to take 
into account the diversity within each industry by establishing 
appropriate subcategories.''). Therefore, in light of Congress' 
awareness of the distinction between categories and subcategories, EPA 
reasonably assumes that Congress' use in 1987 of the term 
``categories'' in section 304(m)(1)(B) was intentional. If Congress had 
intended for EPA to identify potential new subcategories in the Plan, 
it would have said so. Congress' direction for EPA to identify new 
``categories of sources'' cannot be read to constrain EPA's discretion 
over its internal planning processes by requiring identification of 
potential new ``subcategories'' in the Plan. See Norton v. Southern 
Utah Wilderness Alliance et al, 124 S Ct. 2373, 2383 (2004) (finding 
that a statutory mandate must be sufficiently specific in order to 
constrain agency discretion over its internal planning processes).
    Moreover, the distinction between a category and a subcategory has 
long been recognized by the Supreme Court. In Chemical Manufacturers' 
Association v. EPA, the Court recognized that categories are 
``necessarily rough-hewn'' (id. at 120) and that EPA establishes 
subcategories to reflect ``differences among segments of the industry'' 
based on the factors that EPA must consider in establishing effluent 
limitations. Id. at 133, n. 24. See also Texas Oil and Gas Assn. v. 
EPA, 161 F.3d 923, 939 (5th Cir. 1998) (``The EPA is authorized--
indeed, is required--to account for substantial variation within an 
existing category * * * of point sources.''). Indeed, the effluent 
guidelines considered by the Supreme Court in Du Pont case was divided 
into 22 subcategories, each with its own set of technology-based 
limitations, reflecting variations in processes and pollutants. Id. at 
22 and nn. 9 and 10. See also id. at 132 (noting that legislative 
history ``can be fairly read to allow the use of subcategories based on 
factors such as size, age, and unit processes.'').
    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 56 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

[[Page 61351]]

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.'' \5\ 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.
---------------------------------------------------------------------------

    \5\ 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.
---------------------------------------------------------------------------

    Thus, EPA's first decision criterion asks whether a new industrial 
operation or activity in question is properly characterized as an 
industry ``category'' based on similarity of product produced or 
service provided, or whether it simply represents a variation (e.g. new 
process) among facilities generating the same product and is therefore 
properly characterized as a potential new subcategory. If it is 
properly considered a stand-alone category in its own right, EPA 
addresses it pursuant to sections 304(m)(1)(B) and (C). If EPA 
determines that it is a potential new ``subcategory,'' EPA reviews the 
activity in its section 304(b) annual review of the existing categories 
in which it would belong, in order to determine whether it would be 
appropriate to revise the effluent guidelines for that category to 
include limits for the new subcategory.
    As a practical matter, this approach makes sense. There are 
constantly new processes being developed within an industry category--
new ways of making paper or steel, new ways of cleaning transportation 
equipment, new ways of extracting oil and gas, for example. These new 
processes are closely interwoven with the processes already covered by 
the existing effluent guidelines for the category--they often generate 
similar pollutants, are often performed by the same facilities, and 
their discharges can often be controlled by the same treatment 
technology. Therefore, it is more efficient for EPA to consider 
industry categories holistically by looking at these new processes when 
reviewing and revising the effluent guidelines for the existing 
category. The opposite approach could lead to a situation when EPA 
would do a separate effluent guidelines rulemaking every time a new 
individual process emerges without considering how these new 
technologies could affect BAT for related activities. In revising 
effluent guidelines, EPA often creates new subcategories to reflect new 
processes. For example, the effluent guidelines for the pesticides 
chemicals category (40 CFR part 455) did not originally cover refilling 
establishments because this process was developed after the limitations 
were first promulgated. When EPA revised the effluent guidelines for 
the Pesticides Chemicals category, EPA included refilling 
establishments as a new subcategory subject to the effluent limits for 
this category. The issue is not whether a guideline should be developed 
for a particular activity, but whether the analysis should occur in 
isolation or as part of a broader review.
    To ensure appropriate regulation of such new subcategories prior to 
EPA's promulgation of new effluent guidelines for the industrial 
category to which they belong, under EPA's regulations at 40 CFR part 
125.3(c), a permit writer is required to establish technology-based 
effluent limitations for these processes on a case by case, ``Best 
Professional Judgment'' (BPJ) basis, considering the same factors that 
EPA considers in promulgating categorical effluent limitations 
guidelines. These new processes are covered by these BPJ-based effluent 
guidelines until the effluent guidelines for the industrial category 
are revised to include limits for these new subcategories.
    EPA's approach to addressing new industries is analogous to EPA's 
approach to addressing newly identified pollutants. When EPA identifies 
new pollutants associated with the discharge from existing categories, 
EPA considers limits for those new pollutants in the context of 
reviewing and revising the existing effluent guidelines for that 
category. For example, EPA revised effluent limitations for the 
bleached papergrade kraft and soda and papergrade sulfite subcategories 
within the Pulp, Paper, and Paperboard point source category (40 CFR 
430) to add BAT limitations for dioxin, which was not measurable when 
EPA first promulgated these effluent guidelines and pretreatment 
standards and was not addressed by the pollutant control technologies 
considered at that time. See 63 FR 18504 (April 15, 1998).
    In short, for the reasons discussed above, EPA believes that the 
appropriateness of addressing a new process or pollutant discharge is 
best considered in the context of revising an existing set of effluent 
guidelines. Accordingly, EPA analyzed similar industrial activities not 
regulated by existing regulations as part of its annual review of 
existing effluent guidelines and pretreatment standards.
    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. For 
example, based on its finding that the Health Services Industry 
consists almost exclusively of indirect dischargers, EPA did not 
identify this industry in the 2008 Plan but instead will consider 
whether to adopt pretreatment standards for this industry in the 
context of its section 304(g)/307(b) review of indirect dischargers. 
Similarly, EPA would not identify in the Plan categories for which 
effluent guidelines do not apply, e.g.,

[[Page 61352]]

POTWs regulated under CWA section 301(b)(1)(B) or municipal storm water 
runoff regulated under CWA section 402(p)(3)(B).
    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. EPA does not believe that it is necessary, 
nor was it Congressional intent, to develop national effluent 
guidelines for categories of sources that discharge trivial amounts of 
toxic or non-conventional pollutants and therefore pose an 
insignificant hazard to human health or the environment. See Senate 
Report Number 50, 99th Congress, 1st Session (1985); WQA87 Legislative 
History 31 (see DCN 03911). 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 hazard to human health or the environment 
associated with 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. 
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.
    This interpretation is supported by the Supreme Court's decision in 
Norton v. Southern Utah Wilderness Alliance et al. (124 S. Ct. 2373, 
2383 (2004)), which recognized the importance of agency discretion over 
its internal planning processes. Specifically, the Court in Norton held 
that a statute requiring an agency to ``manage wilderness study areas . 
. . in a manner so as not to impair the suitability of such areas'' was 
too broad to constrain the agency's discretion over its internal land 
use planning processes. See also Fund for Animals et al. v. U.S. Bureau 
of Land Management, No. 04-5359, 2006 U.S. App. LEXIS 21206 (D.C. Cir., 
August 18, 2006); Center for Biological Diversity v. Veneman, 394 F.3d 
1108 (9th Cir. 2005) (both cases following Norton line of reasoning to 
find that statutory mandate was not sufficiently specific to constrain 
agency discretion over its internal planning processes). In this case, 
the statutory mandate at issue--establish technology-based effluent 
limits that take into account a range of factors including ``such other 
factors as the Administrator deems appropriate''--also lacks the 
specificity to constrain the Agency's discretion over its effluent 
guidelines planning process. See CWA section 304(b)(2)(B). This broad 
statutory mandate gives EPA the discretion to identify in its section 
304(m) Plan only those industrial categories for which it determines 
that effluent guidelines would be ``appropriate'' and to rely on other 
CWA tools--such as site-specific technology based limitations developed 
by permit writers on a BPJ basis--when it determines that such tools 
would be a more effective and efficient way of increasing the 
stringency of pollution control through NPDES permits.
    Congress specifically accorded EPA with the discretion to choose 
the appropriate tool for pressing the development of new technologies, 
authorizing EPA to develop technology-based effluent limitations using 
a site-specific BPJ approach under CWA section 402(a)(1), rather than 
pursuant to an effluent guidelines rulemaking. See CWA section 
301(b)(3)(B). Significantly, section 301(b)(3)(B) was enacted 
contemporaneously with section 304(m) and its planning process, 
suggesting that Congress contemplated the use of both tools, with the 
choice of tools in any given 304(m) plan left to the Administrator's 
discretion. The Clean Water Act requirement that EPA develop an 
effluent guidelines plan--when coupled with the broad statutory mandate 
to consider ``appropriate'' factors in establishing technology-based 
effluent limitations and the direction to establish such limitations 
either through effluent guidelines or site-specific BAT decision-
making--cannot be read to constrain the Agency's discretion over what 
it includes in its plan.
    Moreover, because section 304(m)(1)(C) requires EPA to complete an 
effluent guidelines rulemaking within three years of identifying an 
industrial category in a 304(m) Plan, \6\ EPA believes that Congress 
intended to give EPA the discretion under section 304(m)(1)(B) to 
prioritize its identification of potential new industrial categories so 
that it can use available resources effectively. Otherwise, EPA might 
find itself conducting rushed, resource-intensive effluent guidelines 
rulemakings where none is actually needed for the protection of human 
health and the environment, or where such protection could be more 
effectively achieved through other CWA mechanisms. Considering the full 
scope of the mandates and authorities established by the CWA, of which 
effluent guidelines are only a part, EPA needs the discretion to 
promulgate new effluent guidelines in a phased, orderly manner, 
consistent with Agency priorities and the funds appropriated by 
Congress to execute them. By crafting section 304(m) as a planning 
mechanism, Congress has given EPA that discretion.
---------------------------------------------------------------------------

    \6\ EPA recognizes that a recent district court held that 
section 304(m)(1)(c) requires EPA to promulgate effluent guidelines 
within three years for new categories identified in the Plan--not 
simply to conclude rulemaking in three years. See NRDC et al. v. 
EPA, 437 F.Supp.2d 1137 (C.D. Ca., 2006). EPA disagrees with this 
interpretation and has appealed this decision. If upheld on appeal, 
this decision would limit EPA's discretion regarding whether or not 
to promulgate effluent guidelines for new categories identified in 
the Plan. However, it would not affect EPA's discretion under 
section 304(m)(1)(B) to identify new industries in the Plan in the 
first place.
---------------------------------------------------------------------------

    Like the land use plan at issue in Norton, EPA's plan is ultimately 
``a statement of choices and priorities.'' See Norton v. Southern Utah 
Wilderness Alliance, et al., 124 S. Ct. 2373, 2383 (2004). By requiring 
EPA to publish its plan, Congress assured that EPA's priority-setting 
processes would be available for public viewing. By requiring EPA to 
solicit comments on preliminary plans, Congress assured that interested 
members of the public could contribute ideas and express policy 
preferences. EPA has given careful consideration and summarized its 
findings with respect to all industries suggested by commenters as 
candidates for inclusion in the Plan. Finally, by requiring publication 
of plans every two years, Congress assured that EPA would regularly re-
evaluate its past policy choices and priorities (including whether to 
identify an industrial activity for effluent guidelines rulemaking) to 
account for changed circumstances. Ultimately, however, Congress left 
the content of the plan to EPA's discretion--befitting the role that 
effluent guidelines play in the overall structure of the CWA and their 
relationship to other tools for addressing water pollution.

[[Page 61353]]

IX. Request for Comment and Information

A. EPA Requests Information on the Steam Electric Power Generating 
Category (Part 423)

    EPA solicits public comments on the following areas of interest to 
support the Steam Electric Power Generating Detailed Study.
     Integrated gasification combined cycle (IGCC) facilities. 
EPA solicits comment on the wastewaters that may be generated or 
otherwise affected by the coal gasification process. What are the 
sources and characteristics of wastewaters generated by coal 
gasification and related processes at IGCC plants? How do these 
wastewaters compare to those of traditional coal-fired steam electric 
processes?
     Treatment technologies for wastewaters from wet FGD 
systems. EPA solicits information and data regarding the costs and 
effectiveness of available wastewater treatment technologies (e.g., 
chemical precipitation) for wastewater from wet FGD systems (e.g., 
capital and annual costs, pollutant removals). To help evaluate 
efficacy of the treatment technologies, EPA seeks both influent and 
effluent data from full scale or pilot applications. Data submitted 
should include details on the date samples were collected and analyzed, 
laboratory analytical methods used, and a description of the wastewater 
treatment system and sample collection points.
     Ash pond management. EPA solicits information that would 
help identify best management practices for ash ponds. For example, EPA 
is aware of information suggesting that managing pyritic wastes in ash 
ponds should be avoided because it can contribute to lowering pH of the 
ash pond impoundment, potentially liberating metals in ash sediments 
and elevating the level of metals released to surface waters. In 
addition, introducing certain other wastes such as coal pile runoff can 
substantially affect ash pond pH, similarly producing conditions that 
favor releasing metals present in ash pond sediments and suspended 
particulates. EPA solicits information on best management practices for 
minimizing the potential for such wastes to adversely impact ash pond 
operation and discharges.
     Environmental assessments/impacts. EPA solicits 
information on environmental assessments that have been conducted for 
discharges from steam electric power plants. In particular, EPA seeks 
information linking the environmental assessments to discharges of 
metals (e.g., mercury, arsenic, selenium, boron, and magnesium), 
ammonia and other nitrogen compounds, phosphorus, or biocide residuals 
(e.g., chlorinated or brominated compounds, or non-oxidizing chemical 
biocides). EPA also seeks more general information regarding the 
potential environmental hazard associated with discharges of these 
pollutants from steam electric power plants.

B. EPA Requests Information on the Coal Mining Category (Part 434)

    EPA would appreciate any information to help address the following 
questions.
     To what degree are manganese discharges from coal mines 
causing environmental impairment? How would impacts change if the 
manganese limits were removed or made less stringent?
     How many companies have defaulted on their bonds because 
of post-mining manganese treatment costs?
     What is the potential for companies to default on their 
bonds in the future if the current manganese limit remains unchanged?
     To what extent have states had to assume long-term water 
treatment responsibilities for mines where the bonds have been 
forfeited? How are states managing these responsibilities?
     What is the prevalence of metals other than manganese, and 
other contaminants such as sulfates and chloride, in untreated mining 
wastewater? To what extent are other metals and contaminants removed by 
current manganese treatment practices? How significant are the impacts 
from other metals and contaminants?
     How successful are trust funds as alternatives to bonds 
for long-term manganese control from post-mining sites?
     To what extent are water discharge permits for post-mining 
operations based on state water quality standards rather than on EPA 
effluent limitations and guidelines?

C. 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/Coal Bed Methane detailed study.
     What pollutants are typically discharged in CBM produced 
water?
     What is the toxicity of these pollutants to human health 
and the environment?
     What is the range of pollutant concentrations and CBM 
produced water flow rate?
     What CBM produced water pollutants are typically 
controlled through permit limits and what is the range of these permit 
limits?
     What are the observed and potential impacts of CBM 
produced water discharges on aquatic environments and communities, 
riparian zones, and other wetlands?
     How does the composition of CBM produced water change when 
discharged to normally dry draws or ephemeral streams?
     What is the potential for CBM produced water discharges to 
mobilize metals, soil nutrients, pesticides and other organic 
contaminants to surface waters?
     What CBM produced water pollutants are typically 
controlled through permit limits and what is the range of effluent 
limits?
     What are measures that can mitigate potential impacts to 
uses 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.
     What are the current industry treatment technologies and 
beneficial use practices for CBM produced water?
     What are the potential beneficial use applications of CBM 
produced water and what are the corresponding criteria for such uses?
     What are the performances of these treatment technologies 
and beneficial use practices for reducing the potential impacts of CBM 
produced water discharges?
     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?
     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?
     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.

[[Page 61354]]

     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?
     What are the current industry drilling and infrastructure 
expansion plans for CBM exploration and development?
     What is the predicted range of CBM reserves across the 
different basins for different natural gas prices?
     What are the potential impacts on developing CBM reserves 
and operator profitability and rates of return on investment in 
response to any increased costs associated with potential industry 
treatment technologies and beneficial use practices for CBM produced 
water discharges?
     What is the difference between potential impacts on 
existing sources versus new sources?
     What percentage of CBM operators are considered small 
entities?
    EPA is researching the following questions and topics as they 
relate to current regulatory controls.
     How do NPDES permit programs regulate CBM produced water 
discharges (e.g., individual permits, general permits)?
     What is the BPJ basis for existing technology-based 
effluent limits for CBM produced water discharges?
     To what extent and how do current regulatory controls 
ensure the beneficial use of CBM produced water?
    What other statutes might affect the ability to discharge, treat, 
or beneficially use CBM produced water (e.g., SDWA, RCRA)?

D. EPA Requests Comments and Information on the Following as It Relates 
to Its Health Services Study

1. Dental Mercury
     In state and localities that have not established dental 
mercury guidance or requirements, what, if anything, do dental offices 
currently do to reduce mercury discharges associated with dental 
amalgam? Also, what annual costs are associated with these activities?
     EPA assumes that, at a minimum, all dental facilities have 
chairside traps and/or vacuum pump filters, and that they dispose of 
amalgam collected in these traps/filters as solid waste (i.e., not 
subsequently rinsed down the drain). EPA solicits comment on this 
assumption.
     To what extent are the ADA recommended BMPs currently 
utilized in the dental industry? What is the effectiveness in reducing 
dental mercury associated with these BMPs and what are the annual 
costs?
     EPA solicits data on the effectiveness of BMP or amalgam 
separators in reducing mercury in POTW influent, effluent, and/or 
sludge. EPA is particularly interested in obtaining data from studies 
that measured mercury concentrations in POTW influent, effluent, and/or 
sludge before and after BMP or amalgam separation implementation.
     EPA solicits information on the cost and burden to POTWs 
of implementing state or local BMP or amalgam separator requirements. 
EPA is also interested in obtaining information on how POTWs have 
implemented such standards.
     EPA solicits comment on any known interference or pass 
through problems associated with dental mercury discharges.
     EPA solicits additional information on the effectiveness 
of voluntary local programs for reducing mercury discharges from dental 
facilities.
2. Unused Pharmaceuticals
     EPA solicits identification of any policies, procedures or 
guidelines that govern the disposal of unused pharmaceuticals from 
hospitals; offices of doctors and mental health practitioners; nursing, 
long-term care, re-habilitation, and personal care facilities; medical 
laboratories and diagnostic service facilities; and veterinary care 
facilities.
     EPA solicits information on the most likely sub-sectors 
within the Health Service sector that would accumulate unused 
pharmaceuticals for management and disposal.
     When applicable, to what extent are unused pharmaceuticals 
disposed according to the Resource Conservation and Recovery Act 
(RCRA)?
     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 that 
the Controlled Substances Act (21 U.S.C. 801 et. seq.) complicates the 
design of an efficacious solution to drug disposal?
     EPA solicits quantitative information or tracking sheets 
for the past year on the disposal of unused pharmaceuticals via the 
toilet, drain, or sewer.
     EPA solicits data on how control authorities are currently 
controlling disposal of unused pharmaceuticals via wastewater.
     EPA solicits information on any technologies or BMPs that 
are available to control or eliminate the disposal of unused 
pharmaceuticals to POTWs.
     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.
     EPA solicits any studies or information on the potential 
for unused pharmaceuticals disposed in non-hazardous landfills to 
contaminate underground resources of drinking water.

E. Preliminary Category Reviews for the 2008 Annual Review

    EPA requests information on the industries for which it is 
continuing or initiating preliminary category reviews: Ore Mining and 
Dressing, Centralized Waste Treatment, and Waste Combustors (i.e., 
industrial point source categories with existing effluent guidelines 
identified with ``(5)'' in the column entitled ``Findings'' in Table V-
1 in section V.B.4 of today's notice). EPA will need to collect more 
information for the 2008 annual review. Specifically, EPA hopes to 
gather the following information:
     What toxic pollutants are discharged from these industries 
in non-trivial amounts on an industry and per-facility basis?
     What raw material(s) or process(es) are the sources of 
these pollutants?
     What technologies or management practices are available 
(technically and economically) to control or prevent the generation 
and/or release of these pollutants.

F. 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 04247).

G. 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

[[Page 61355]]

Agency should provide permit-based support.

H. 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.

I. 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 2008 Effluent Guidelines Program 
Plan

J. 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: October 18, 2007.
Benjamin H. Grumbles,
Assistant Administrator for Water.
 [FR Doc. E7-21310 Filed 10-29-07; 8:45 am]
BILLING CODE 6560-50-P