[Federal Register: October 30, 2007 (Volume 72, Number 209)][Notices][Page 61335-61355]From the Federal Register Online via GPO Access [wais.access.gpo.gov][DOCID:fr30oc07-35]-----------------------------------------------------------------------ENVIRONMENTAL PROTECTION AGENCY[EPA-HQ-OW-2006-0771; FRL-8486-3]RIN 2040-AE89Notice of Availability of Preliminary 2008 Effluent Guidelines Program PlanAGENCY: Environmental Protection Agency (EPA).ACTION: Notice of Availability of Preliminary 2008 Effluent GuidelinesProgram Plan.-----------------------------------------------------------------------SUMMARY: EPA establishes national, technology-based regulations knownas effluent guidelines and pretreatment standards to reduce pollutantdischarges from categories of industry discharging directly to watersof the United States or discharging indirectly through Publicly OwnedTreatment Works (POTWs). The Clean Water Act (CWA) sections 301(d),304(b), 304(g), and 307(b) require EPA to annually review theseeffluent guidelines and pretreatment standards. This notice presentsEPA's 2007 review of existing effluent guidelines and pretreatmentstandards. It also presents EPA's evaluation of indirect dischargerswithout categorical pretreatment standards to identify potential newcategories for pretreatment standards under CWA sections 304(g) and307(b). This notice also presents the Preliminary 2008 EffluentGuidelines Program Plan (``preliminary 2008 Plan''), which, as requiredunder CWA section 304(m), identifies any new or existing industrialcategories selected for effluent guidelines rulemaking and provides aschedule for such rulemaking. CWA section 304(m) requires EPA tobiennially publish such a plan after public notice and comment. EPA issoliciting comment on its preliminary 2008 Plan and on its 2007 annualreview of existing effluent guidelines and pretreatment standards andindustrial categories not currently regulated by effluent guidelinesand pretreatment standards.DATES: If you wish to comment on any portion of this notice, EPA mustreceive your comments by December 31, 2007.ADDRESSES: Submit your comments, data and information for the 2007annual review of existing effluent guidelines and pretreatmentstandards and the preliminary 2008 Plan, identified by Docket ID No.EPA-HQ-OW-2006-0771, by one of the following methods:    (1) http://www.regulations.gov. Follow the on-line instructions forsubmitting comments.    (2) E-mail: OW-Docket@epa.gov, 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, AttentionDocket ID No. EPA-HQ-OW-2006-0771. Please include a total of 3 copies.    (4) Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room3334, 1301 Constitution Ave., NW., Washington, DC, Attention Docket IDNo. EPA-HQ-OW-2006-0771. Such deliveries are only accepted during theDocket'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 inthe public docket without change and may be made available online athttp://www.regulations.gov, including any personal information provided,unless the comment includes information claimed to be ConfidentialBusiness Information (CBI) or other information whose disclosure isrestricted 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 contactinformation unless you provide it in the body of your comment. If yousubmit an electronic comment, EPA recommends that you include your nameand other contact information in the body of your comment and with anydisk or CD-ROM you submit. If you send an e-mail comment directly toEPA without going through regulations.gov, your e-mail address will beautomatically captured and included as part of the comment that isplaced in the public docket and made available on the Internet. If EPAcannot read your comment due to technical difficulties and cannotcontact you for clarification, EPA may not be able to consider yourcomment. 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 athttp://www.regulations.gov. Although listed in the index, some informationis not publicly available, i.e., CBI or other information whose disclosureis restricted by statute. Certain other material, such as copyrightedmaterial, is not placed on the Internet and will be publicly availableonly in hard copy form. Publicly available docket materials are availableeither electronically at http://www.regulations.gov or in hard copyat the Water Docket in the EPA Docket Center, EPA/DC, EPA West, Room3334, 1301 Constitution Ave., NW, Washington, DC. The Public ReadingRoom is open from 8:30 a.m. to 4:30 p.m., Monday through Friday,excluding legal holidays. The telephone number for the Public ReadingRoom is (202) 566-1744, and the telephone number for the Water Docketis (202) 566-2426.    The following key document provides additional information aboutEPA's annual reviews and the Preliminary 2008 Effluent GuidelinesProgram Plan: ``Technical Support Document for the Preliminary 2008Effluent Guidelines Program Plan,'' EPA-821R-07-007, DCN 04247, October2007.FOR FURTHER INFORMATION CONTACT: Mr. Carey A. Johnston at (202) 566-1014 or johnston.carey@epa.gov.SUPPLEMENTARY INFORMATION:How is this document organized?    The outline of this notice follows.I. General InformationII. Legal AuthorityIII. What is the Purpose of This Federal Register Notice?IV. BackgroundV. EPA's 2007 Annual Review of Existing Effluent Guidelines andPretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),and 307(b)VI. EPA's 2008 Annual Review of Existing Effluent Guidelines andPretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),and 307(b)VII. EPA's Evaluation of Categories of Indirect Dischargers WithoutCategorical Pretreatment Standards To Identify Potential NewCategories for Pretreatment StandardsVIII. The Preliminary 2008 Effluent Guidelines Program Plan UnderSection 304(m)IX. Request for Comment and InformationI. General InformationA. Does This Action Apply to Me?    This notice provides a statement of the Agency's effluentguidelines 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 thisinformation to EPA through http://www.regulations.gov or e-mail. Clearlymark the part or all of the information that you claim to be CBI. For CBIinformation in a disk or CD-ROM that you mail to EPA, mark the outsideof the disk or CD-ROM as CBI and then identify electronically withinthe disk or CD-ROM the specific information that is claimed as CBI. Inaddition to one complete version of the comment that includesinformation claimed as CBI, a copy of the comment that does not containthe information claimed as CBI must be submitted for inclusion in thepublic docket. Information marked as CBI will not be disclosed exceptin 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 otheridentifying information (subject heading, Federal Register date andpage number).    • Follow directions--The agency may ask you to respond tospecific questions or organize comments by referencing a Code ofFederal Regulations (CFR) part or section number.    • Explain why you agree or disagree; suggest alternativesand substitute language for your requested changes.    • Describe any assumptions and provide any technicalinformation and/or data that you used.    • If you estimate potential costs or burdens, explain howyou arrived at your estimate in sufficient detail to allow for it to bereproduced.    • Provide specific examples to illustrate your concerns, andsuggest alternatives.    • Explain your views as clearly as possible.    • Make sure to submit your comments by the comment perioddeadline 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 effluentguidelines and pretreatment standards under CWA sections 301(d),304(b), 304(g) and 307(b). This notice also provides EPA's preliminarythoughts concerning its 2008 annual reviews under CWA sections 301(d),304(b), 304(g) and 307(b) and solicits comments, data and informationto assist EPA in performing these reviews. It also presents EPA'sevaluation of indirect dischargers without categorical pretreatmentstandards to identify potential new categories for pretreatmentstandards under CWA sections 304(g) and 307(b). This notice alsopresents the preliminary 2008 Effluent Guidelines Program Plan(``preliminary 2008 Plan''), which, as required under CWA section304(m), identifies any new or existing industrial categories selectedfor effluent guidelines rulemaking and provides a schedule for suchrulemaking. CWA section 304(m) requires EPA to biennially publish sucha plan after public notice and comment.IV. BackgroundA. What Are Effluent Guidelines and Pretreatment Standards?    The CWA directs EPA to promulgate effluent limitations guidelinesand standards (``effluent guidelines'') that reflect pollutantreductions that can be achieved by categories or subcategories ofindustrial point sources using technologies that represent theappropriate level of control. See CWA sections 301(b)(2), 304(b), 306,307(b), and 307(c). For point sources that introduce pollutantsdirectly into the waters of the United States (direct dischargers), theeffluent limitations guidelines and standards promulgated[[Page 61337]]by EPA are implemented through National Pollutant Discharge EliminationSystem (NPDES) permits. See CWA sections 301(a), 301(b), and 402. Forsources that discharge to POTWs (indirect dischargers), EPA promulgatespretreatment standards that apply directly to those sources and areenforced by POTWs and State and Federal authorities. See CWA sections307(b) and (c).1. Best Practicable Control Technology Currently Available (BPT)--CWASections 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 asconventional pollutants: Biochemical oxygen demand (BOD5),total suspended solids, fecal coliform, pH, and any additionalpollutants defined by the Administrator as conventional. TheAdministrator designated oil and grease as an additional conventionalpollutant on July 30, 1979 (44 FR 44501). EPA has identified 65pollutants and classes of pollutants as toxic pollutants, of which 126specific substances have been designated priority toxic pollutants. SeeAppendix A to part 423. All other pollutants are considered to be non-conventional.    In specifying BPT, EPA looks at a number of factors. EPA firstconsiders the total cost of applying the control technology in relationto the effluent reduction benefits. The Agency also considers the ageof the equipment and facilities, the processes employed, and anyrequired process changes, engineering aspects of the controltechnologies, non-water quality environmental impacts (including energyrequirements), and such other factors as the EPA Administrator deemsappropriate. See CWA section 304(b)(1)(B). Traditionally, EPAestablishes BPT effluent limitations based on the average of the bestperformance of facilities within the industry of various ages, sizes,processes, or other common characteristics. Where existing performanceis uniformly inadequate, BPT may reflect higher levels of control thanare currently in place in an industrial category if the Agencydetermines that the technology can be practically applied.2. Best Conventional Pollutant Control Technology (BCT)--CWA Sections301(b)(2)(E) & 304(b)(4)    The 1977 amendments to the CWA required EPA to identify effluentreduction levels for conventional pollutants associated with BestConventional Pollutant Control Technology (BCT) for discharges fromexisting industrial point sources. In addition to considering the otherfactors specified in section 304(b)(4)(B) to establish BCT limitations,EPA also considers a two part ``cost-reasonableness'' test. EPAexplained its methodology for the development of BCT limitations in1986. See 51 FR 24974 (July 9, 1986).3. Best Available Technology Economically Achievable (BAT)--CWASections 301(b)(2)(A) & 304(b)(2)    For toxic pollutants and non-conventional pollutants, EPApromulgates effluent guidelines based on the Best Available TechnologyEconomically Achievable (BAT). See CWA section 301(b)(2)(A), (C), (D)and (F). The factors considered in assessing BAT include the cost ofachieving BAT effluent reductions, the age of equipment and facilitiesinvolved, the process employed, potential process changes, non-waterquality environmental impacts, including energy requirements, and othersuch factors as the EPA Administrator deems appropriate. See CWAsection 304(b)(2)(B). The technology must also be economicallyachievable. See CWA section 301(b)(2)(A). The Agency retainsconsiderable discretion in assigning the weight accorded to thesefactors. BAT limitations may be based on effluent reductions attainablethrough changes in a facility's processes and operations. Whereexisting performance is uniformly inadequate, BAT may reflect a higherlevel of performance than is currently being achieved within aparticular subcategory based on technology transferred from a differentsubcategory or category. BAT may be based upon process changes orinternal controls, even when these technologies are not common industrypractice.4. New Source Performance Standards (NSPS)--CWA Section 306    New Source Performance Standards (NSPS) reflect effluent reductionsthat are achievable based on the best available demonstrated controltechnology. New sources have the opportunity to install the best andmost efficient production processes and wastewater treatmenttechnologies. As a result, NSPS should represent the most stringentcontrols attainable through the application of the best availabledemonstrated control technology for all pollutants (i.e., conventional,non-conventional, and priority pollutants). In establishing NSPS, EPAis directed to take into consideration the cost of achieving theeffluent reduction and any non-water quality environmental impacts andenergy requirements.5. Pretreatment Standards for Existing Sources (PSES)--CWA Section 307(b)    Pretreatment Standards for Existing Sources (PSES) are designed toprevent the discharge of pollutants that pass through, interfere with,or are otherwise incompatible with the operation of publicly-ownedtreatment works (POTWs), including sludge disposal methods at POTWs.Pretreatment standards for existing sources are technology-based andare analogous to BAT effluent limitations guidelines.    The General Pretreatment Regulations, which set forth the frameworkfor the implementation of national pretreatment standards, are found at40 CFR part 403.6. Pretreatment Standards for New Sources (PSNS)--CWA Section 307(c)    Like PSES, Pretreatment Standards for New Sources (PSNS) aredesigned to prevent the discharges of pollutants that pass through,interfere with, or are otherwise incompatible with the operation ofPOTWs. PSNS are to be issued at the same time as NSPS. New indirectdischargers have the opportunity to incorporate into their facilitiesthe best available demonstrated technologies. The Agency considers thesame factors in promulgating PSNS as it considers in promulgating NSPS.B. What Are EPA's Review and Planning Obligations Under Sections301(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 effluentguidelines for direct dischargers each year and to revise suchregulations ``if appropriate.'' Section 304(m) supplements the corerequirement of section 304(b) by requiring EPA to publish a plan everytwo years announcing its schedule for performing this annual review andits schedule for rulemaking for any effluent guidelines selected forpossible revision as a result of that annual review. Section 304(m)also requires the plan to identify categories of sources dischargingnon-trivial amounts of toxic or non-conventional pollutants for whichEPA has not published effluent limitations guidelines under section304(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 mustpresent a schedule for promulgating effluent guidelines for industrialcategories for which it has not already established such guidelines,providing for final action on such rulemaking not later than threeyears after the industrial category is identified in a final Plan.\1\See CWA section 304(m)(1)(C). EPA is required to publish itspreliminary Plan for public comment prior to taking final action on theplan. See CWA section 304(m)(2).---------------------------------------------------------------------------    \1\ EPA recognizes that one court--the U.S. District Court forthe Central District of California--has found that EPA has a duty topromulgate effluent guidelines within three years for new categoriesidentified in the Plan. See NRDC et al. v. EPA, 437 F.Supp.2d 1137(C.D. Ca, 2006). However, EPA continues to believe that themandatory duty under section 304(m)(1)(C) is limited to providing aschedule for taking final action in effluent guidelines rulemaking--not necessarily promulgating effluent guidelines--within threeyears, and has appealed this decision.---------------------------------------------------------------------------    In addition, CWA section 301(d) requires EPA to review every fiveyears the effluent limitations required by CWA section 301(b)(2) and torevise them if appropriate pursuant to the procedures specified in thatsection. Section 301(b)(2), in turn, requires point sources to achieveeffluent limitations reflecting the application of the best availabletechnology economically achievable (for toxic pollutants and non-conventional pollutants) and the best conventional pollutant controltechnology (for conventional pollutants), as determined by EPA undersections 304(b)(2) and 304(b)(4), respectively. For nearly threedecades, EPA has implemented sections 301 and 304 through thepromulgation of effluent limitations guidelines, resulting inregulations for 56 industrial categories. See E.I. du Pont de Nemours &Co. v. Train, 430 U.S. 113 (1977). Consequently, as part of its annualreview of effluent limitations guidelines under section 304(b), EPA isalso reviewing the effluent limitations they contain, thereby fulfillingits obligations under sections 301(d) and 304(b) simultaneously.2. EPA's Review and Planning Obligations Under Sections 304(g) and307(b)--Indirect Dischargers    Section 307(b) requires EPA to revise its pretreatment standardsfor indirect dischargers ``from time to time, as control technology,processes, operating methods, or other alternatives change.'' See CWAsection 307(b)(2). Section 304(g) requires EPA to annually review thesepretreatment standards and revise them ``if appropriate.'' (Althoughsection 307(b) only requires EPA to revise existing pretreatmentstandards ``from time to time,'' section 304(g) requires an annualreview. Therefore, EPA meets its 304(g) and 307(b) requirements byreviewing all industrial categories subject to existing categoricalpretreatment standards on an annual basis to identify potentialcandidates for revision.    Section 307(b)(1) also requires EPA to promulgate pretreatmentstandards for pollutants not susceptible to treatment by POTWs or thatwould interfere with the operation of POTWs, although it does notprovide a timing requirement for the promulgation of such newpretreatment standards. EPA, in its discretion, periodically evaluatesindirect dischargers not subject to categorical pretreatment standardsto identify potential candidates for new pretreatment standards. TheCWA does not require EPA to publish its review of pretreatmentstandards or identification of potential new categories, although EPAis exercising its discretion to do so in this notice.    EPA intends to repeat this publication schedule for futurepretreatment standards reviews (e.g., EPA will publish the 2008 annualpretreatment standards review in the notice containing the Agency's2008 annual review of existing effluent guidelines and the final 2008Plan). EPA intends that these contemporaneous reviews will providemeaningful insight into EPA's effluent guidelines and pretreatmentstandards program decision-making. Additionally, by providing a singlenotice for these and future reviews, EPA hopes to provide aconsolidated source of information for the Agency's current and futureeffluent guidelines and pretreatment standards program reviews.V. EPA's 2007 Annual Review of Existing Effluent Guidelines andPretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), and307(b)A. What Process Did EPA Use To Review Existing Effluent Guidelines andPretreatment Standards Under CWA Section 301(d), 304(b), 304(g), and307(b)?1. Overview    In its 2007 annual review, EPA reviewed all industrial categoriessubject to existing effluent limitations guidelines and pretreatmentstandards, representing a total of 56 point source categories and over450 subcategories. This review consisted of a screening level review ofall existing industrial categories based on the hazard associated withdischarges from each category and other factors identified by EPA asappropriate for prioritizing effluent guidelines and pretreatmentstandards for possible revision. EPA used this review to confirm theidentification of the four industrial categories prioritized forfurther review in the final 2006 Effluent Guidelines Program Plan(December 21, 2006; 71 FR 76644) and to list the industrial categoriescurrently regulated by existing effluent guidelines that cumulativelycomprise 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 onfour detailed studies as part of the 2007 annual review: Steam ElectricPower Generating (Part 423), Coal Mining (Part 434), Oil and GasExtraction (Part 435) (only to assess whether to include coalbedmethane extraction as a new subcategory), and Hospitals (Part 460).\2\---------------------------------------------------------------------------    \2\ Based on available information, hospitals consist mostly ofindirect dischargers for which EPA has not established pretreatmentstandards. As discussed in Section VII.B, EPA is including hospitalsin its review of the Health Services Industry, a potential newcategory for pretreatment standards. As part of that process, EPAwill review the existing effluent guidelines for the few directdischargers in the category.---------------------------------------------------------------------------    Together, these reviews discharged EPA's obligations to annuallyreview both existing effluent limitations guidelines for directdischargers under CWA sections 301(d) and 304(b) and existingpretreatment standards for indirect dischargers under CWA sections304(g) and 307(b).    Based on this review and prior annual reviews, and in light of theongoing effluent guidelines rulemakings and detailed studies currentlyin progress, EPA is not identifying any existing categories foreffluent guidelines rulemaking at this time.2. How did EPA's 2006 annual review influence its 2007 annual review ofpoint source categories with existing effluent guidelines andpretreatment standards?    In view of the annual nature of its reviews of existing effluentguidelines and pretreatment standards, EPA believes that each annualreview can and should influence succeeding annual reviews, e.g., byindicating data gaps, identifying new pollutants or pollution reductiontechnologies, or otherwise highlighting industrial categories foradditional scrutiny in subsequent years. For example, during its 2005and 2006[[Page 61339]]annual reviews EPA started a detailed study of the Steam Electric PowerGenerating (Part 423) category. At the conclusion of the 2006 annualreview EPA indicated that it would continue the detailed study of theSteam Electric Power Generating (Part 423) category and begin detailedstudies for the following three industrial categories: Coal Mining(Part 434), Oil and Gas Extraction (Part 435) (only to assess whetherto include coalbed methane extraction as a new subcategory); andHospitals (Part 460) (which is part of the Health Services Industrydetailed study). In addition, EPA identified two other industrialcategories, Ore Mining and Dressing (Part 440) and Textile Mills (Part410), at the conclusion of the 2006 annual review as candidates for``preliminary category reviews'' in the 2007 review based on the toxicdischarges reported to the Toxics Release Inventory (TRI) and PermitCompliance System (PCS). These are categories for which EPA lackssufficient data to determine whether revision would be appropriate andfor which EPA is performing a further assessment of pollutantdischarges before starting a detailed study. This assessment providesan additional level of quality assurance on the reported pollutantdischarges and number of facilities that represent the majority oftoxic-weighted pollutant discharges. EPA published the findings fromits 2006 annual review with its final 2006 Plan (December 21, 2006; 71FR 76644), making the data collected available for public comment.Docket No. EPA-HQ-OW-2004-0032. EPA used the findings, data andcomments on the 2006 annual review to inform its 2007 annual review.The 2007 review also built on the previous reviews by continuing to usethe screening methodology, incorporating some refinements to assigningdischarges to categories and updating toxic weighting factors used toestimate potential hazards of toxic pollutant discharges.3. What actions did EPA take in performing its 2007 annual reviews ofexisting effluent guidelines and pretreatment standards?a. Screening-Level Review    The first component of EPA's 2007 annual review consisted of ascreening-level review of all industrial categories subject to existingeffluent guidelines or pretreatment standards. As a starting point forthis review, EPA examined screening-level data from its 2007 annualreviews. In its 2007 annual reviews, EPA focused its efforts oncollecting and analyzing data to identify industrial categories whosepollutant discharges potentially pose the greatest hazard to humanhealth or the environment because of their toxicity (i.e., highestestimates of toxic-weighted pollutant discharges). In particular, EPAranked point source categories according to their discharges of toxicand non-conventional pollutants (reported in units of toxic-weightedpound equivalent or TWPE), based primarily on data from TRI and PCS.EPA calculated the TWPE using pollutant-specific toxic weightingfactors (TWFs). Where data are available, these TWFs reflect bothaquatic life and human health effects. For each facility that reportsto TRI or PCS, EPA multiplies the pounds of discharged pollutants bypollutant-specific TWFs. This calculation results in an estimate of thedischarged toxic-weighted pound equivalents, which EPA then uses as itsestimate of the hazard posed by these toxic and non-conventionalpollutant discharges to human health or the environment. For the 2007annual reviews, EPA used the most recent PCS and TRI data (2004). Thefull description of EPA's methodology for the 2007 screening-levelreview is presented in the Technical Support Document (TSD) for thepreliminary 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 toimprove its analyses. In particular, EPA recently conducted a peerreview of the TWF methodology and the Agency's use of TWFs in effluentguidelines program planning. An independent panel of scientific expertswas asked to provide comment on the appropriateness of the TWFcalculations and the quality and hierarchy of the data used indeveloping individual TWFs. EPA is currently in the process ofreviewing and responding to the peer reviewer's comments. EPA is alsoin the process of updating the following document, Draft ToxicWeighting Factor Development in Support of CWA 304(m) Planning Process,EPA-HQ-OW-2004-0032-1634, to address some of the peer reviewersconcerns. EPA plans to release the peer review report with the Agency'sresponse as soon as it's completed, but no later than when the final2008 304(m) Plan is released. EPA also is exploring how best tocommunicate the uncertainty inherent with incomplete data regardingindividual TWFs. EPA will continue to update individual TWFs as newinformation becomes available.    EPA also developed a quality assurance project plan (QAPP) for itsuse of TRI and PCS data in the 2007 annual review to document the typeand quality of data needed to make the decisions in this annual reviewand to describe the methods for collecting and assessing those data(see DCN 04422). EPA used the following document to develop the QAPPfor this annual review: ``EPA Requirements for QA Project Plans (QA/R-5), EPA-240-B01-003.'' Using the QAPP as a guide, EPA performedextensive quality assurance checks on the data used to developestimates of toxic-weighted pollutant discharges (i.e., verifying 2004discharge data reported to TRI and PCS) to determine if any of thepollutant discharge estimates relied on incorrect or suspect data. Forexample, EPA contacted facilities and permit writers to confirm and, asnecessary, correct TRI and PCS data for facilities that EPA hadidentified in its screening-level review as the significant dischargersof nutrients and of toxic and non-conventional pollution.    Based on this methodology, EPA prioritized for potential revisionindustrial categories that offered the greatest potential for reducinghazard to human health and the environment. EPA assigned thosecategories with the lowest estimates of toxic-weighted pollutantdischarges a lower priority for revision (i.e., industrial categoriesmarked ``(3)'' in the ``Findings'' column in Table V-1 in section V.B.4of today's notice).    In order to further focus its inquiry during the 2007 annualreview, EPA assigned a lower priority for potential revision tocategories for which effluent guidelines had been recently promulgatedor revised, or for which effluent guidelines rulemaking was currentlyunderway (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 theChlorine and Chlorinated Hydrocarbon (CCH) Manufacturing effluentguidelines rulemaking (formerly known as the ``Vinyl Chloride andChlor-Alkali Manufacturing'' effluent guidelines rulemaking) currentlyunderway from its 2006 hazard assessment of the Organic Chemicals,Plastics, and Synthetic Fibers (OCPSF) and Inorganic Chemicals pointsource categories to which CCH facilities belong.    Additionally, EPA applied less scrutiny to industrial categoriesfor which EPA had promulgated effluent guidelines or pretreatmentstandards within the past seven years. EPA chose[[Page 61340]]seven years because this is the time it customarily takes for theeffects of effluent guidelines or pretreatment standards to be fullyreflected in pollutant loading data and TRI reports (in large partbecause effluent limitations guidelines are often incorporated intoNPDES permits only upon re-issuance, which could be up to five yearsafter the effluent guidelines or pretreatment standards arepromulgated). Because there are 56 point source categories (includingover 450 subcategories) with existing effluent guidelines andpretreatment standards that must be reviewed annually, EPA believes itis important to prioritize its review so as to focus on industrieswhere changes to the existing effluent guidelines or pretreatmentstandards are most likely to be needed. In general, industries forwhich effluent guidelines or pretreatment standards have recently beenpromulgated are less likely to warrant such changes. However, in caseswhere EPA becomes aware of the growth of a new industrial activitywithin a category for which EPA has recently revised effluentguidelines or pretreatment standards, or where new concerns areidentified for previously unevaluated pollutants discharged byfacilities within the industrial category, EPA would apply morescrutiny to the category in a subsequent review. EPA identified no suchinstance during the 2007 annual review.    EPA also applied a lower priority for potential revision at thistime to categories for which EPA lacked sufficient data to determinewhether revision would be appropriate. For industrial categories marked``(5)'' in the ``Findings'' column in Table V-1 in section V.B.4 oftoday's notice, EPA lacks sufficient information at this time on themagnitude of the toxic-weighted pollutant discharges associated withthese categories. EPA will seek additional information on thedischarges from these categories in the next annual review in order todetermine whether a detailed study is warranted. EPA typically performsa further assessment of the pollutant discharges before starting adetailed study of an industrial category. This assessment(``preliminary category review'') provides an additional level ofquality assurance on the reported pollutant discharges and number offacilities that represent the majority of toxic-weighted pollutantdischarges. See the appropriate section in the TSD for the preliminary2008 Plan (DCN 04247) for EPA's data needs for these industrial categories.    For industrial categories marked ``(4)'' in the ``Findings'' columnin Table V-1 in section V.B.4 of today's notice, EPA had sufficientinformation on the toxic-weighted pollutant discharges associated withthese categories to start or continue a detailed study of theseindustrial categories in the 2007 annual review. EPA intends to use thedetailed study to obtain information on hazard, availability and costof technology options, and other factors in order to determine if itwould be appropriate to identify the category for possible effluentguidelines revision. In the 2007 annual review, EPA began or continueddetailed studies of four such categories.    As part of its 2007 annual review, EPA also considered the numberof 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 vastmajority of toxic-weighted pollutant discharges (i.e., categoriesmarked ``(2)'' in the ``Findings'' column in Table V-1 in section V.B.4of today's notice), EPA applied a lower priority for potentialrevision. EPA believes that revision of individual permits for suchfacilities may be more effective than a revised national effluentguidelines rulemaking. Individual permit requirements can be bettertailored to these few facilities and may take considerably less timeand resources to establish than a national effluent guidelinesrulemaking. The Docket accompanying this notice lists facilities thataccount for the vast majority of the estimated toxic-weighted pollutantdischarges for particular categories (see DCN 04247). For thesefacilities, EPA will consider identifying pollutant control andpollution prevention technologies that will assist permit writers indeveloping facility-specific, technology-based effluent limitations ona best professional judgment (BPJ) basis. For example, EPA developedand distributed a 2007 technical document to NPDES permit writers inorder to support the development of effluent limitations for facilitiesin the dissolving kraft (Subpart A) and dissolving sulfite (Subpart D)subcategories of the pulp and paper point source category (40 CFR Part430) (see DCN 04167). As of the beginning of 2006, there were fouraffected facilities in these two subcategories, two in Florida and oneeach in Georgia and Washington. EPA indicated in the final 2006 Plan(see December 21, 2006; 71 FR 76651-76652) that it would providesupport to permit writers in establishing facility-specific effluentlimits for these subcategories based on their Best ProfessionalJudgment (BPJ) in lieu of finalizing its 1993 effluent guidelinesrulemaking (see December 17, 1993; 58 FR 44078). In future annualreviews, EPA also intends to re-evaluate each category based on theinformation available at the time in order to evaluate theeffectiveness of the BPJ permit-based support.    EPA received comments in previous biennial planning cycles urgingthe Agency to encourage and recognize voluntary efforts by industry toreduce pollutant discharges, especially when the voluntary efforts havebeen widely adopted within an industry and the associated pollutantreductions have been significant. EPA agrees that industrial categoriesdemonstrating significant progress through voluntary efforts to reducehazard to human health or the environment associated with theireffluent discharges would be a comparatively lower priority foreffluent guidelines or pretreatment standards revision, particularlywhere such reductions are achieved by a significant majority ofindividual facilities in the industry. Although during this annualreview EPA could not complete a systematic review of voluntarypollutant loading reductions, EPA's review did indirectly account forthe effects of successful voluntary programs because any significantreductions in pollutant discharges should be reflected in dischargemonitoring and TRI data, as well as any data provided directly bycommenters, that EPA used to assess the toxic-weighted pollutantdischarges.    As was the case in previous annual reviews, EPA was unable togather the data needed to perform a comprehensive screening-levelanalysis of the availability of treatment or process technologies toreduce toxic pollutant wastewater discharges beyond the performance oftechnologies already in place for all of the 56 existing industrialcategories. However, EPA believes that its analysis of hazard is usefulfor assessing the effectiveness of existing technologies because itfocuses on the amount and significance of pollutants that are stilldischarged following existing treatment. Therefore, by assessing thehazard associated with discharges from all existing categories in itsscreening-level review, EPA was indirectly able to assess thepossibility that further significant reductions could be achievedthrough new pollution control technologies for these categories. Inaddition, EPA directly assessed the availability of technologies forcertain industries that were prioritized for a more in-depth review asa result of the screening level analysis. See DCN 04247.[[Page 61341]]    Similarly, EPA could not identify a suitable screening-level toolfor comprehensively evaluating the affordability of treatment orprocess technologies because the universe of facilities is too broadand complex. EPA could not find a reasonable way to prioritize theindustrial categories based on readily available economic data. In thepast, EPA has gathered information regarding technologies and economicachievability through detailed questionnaires distributed to hundredsof facilities within a category or subcategory for which EPA hascommenced rulemaking. Such information-gathering is subject to therequirements of the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, etseq. The information acquired in this way is valuable to EPA in itsrulemaking efforts, but the process of gathering, validating andanalyzing the data can consume considerable time and resources. EPAdoes not think it appropriate to conduct this level of analysis for allpoint source categories in conducting an annual review. Rather, EPAbelieves it is appropriate to set priorities based on hazard and otherscreening-level factors identified above, and to directly consider theavailability and affordability of technology only in conducting themore in-depth reviews of prioritized categories. For these prioritizedcategories, EPA may conduct surveys or other PRA-governed datacollection activities in order to better inform the decision on whethereffluent guidelines are warranted. Additionally, EPA is working todevelop tools for directly assessing technological and economicachievability as part of the screening-level review in future annualreviews 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 usescreening-level tools for assessing technological and economicachievability on an industry-specific basis as part of future annualreviews.    In summary, through its screening level review, EPA focused onthose point source categories that appeared to offer the greatestpotential for reducing hazard to human health or the environment, whileassigning a lower priority to categories that the Agency believes arenot good candidates for effluent guidelines or pretreatment standardsrevision at this time. This enabled EPA to concentrate its resources onconducting more in-depth reviews of certain industries prioritized as aresult of the screening level analysis, as discussed below (see sectionV.A.3.b and c).b. Further Review of Prioritized Categories    In the publication of the final 2006 Plan EPA identified twoadditional categories with potentially high TWPE discharge estimatesfor further investigation (``preliminary category review'') in the 2007annual review: Ore Mining and Dressing (Part 440) and Textile Mills(Part 410) (i.e., EPA identified these categories with ``(5)'' in thecolumn entitled ``Findings'' in Table V-1, Page 76657 of the final 2006Plan). From its 2007 annual review, EPA is identifying the CentralizedWaste Treatment (Part 437) and Waste Combustors (Part 444) categoriesfor preliminary category reviews in the 2008 annual review.    In conducting these preliminary category reviews EPA uses the sametypes of data sources used for the detailed studies but in less depth.EPA typically performs a further assessment of the pollutant dischargesbefore starting a detailed study of an industrial category. Thisassessment provides an additional level of quality assurance on thereported pollutant discharges and number of facilities that representthe majority of toxic-weighted pollutant discharges. EPA may alsodevelop a preliminary list of potential wastewater pollutant controltechnologies before conducting a detailed study. EPA is not conductinga detailed study for these categories at this time because EPA needsadditional information regarding these industries to determine whethera detailed study is warranted.c. Detailed Study of Four Categories    In addition to conducting a screening-level review of all existingcategories, EPA started or continued detailed studies of fourcategories: Steam Electric Power Generating (Part 423), Coal Mining(Part 434), Oil and Gas Extraction (Part 435) (only to assess whetherto include coalbed methane extraction as a new subcategory), andHospitals (Part 460) (which is part of the Health Services Industrydetailed study). For these industries, EPA gathered and analyzedadditional data on pollutant discharges, economic factors, andtechnology issues during its 2007 annual review. EPA examined: (1)Wastewater characteristics and pollutant sources; (2) the pollutantsdischarged from these sources and the toxic weights associated withthese discharges; (3) treatment technology and pollution preventioninformation; (4) the geographic distribution of facilities in theindustry; (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) The2002 U.S. Economic Census; (2) TRI and PCS data; (3) contacts withreporting facilities to verify reported releases and facilitycategorization; (4) contacts with regulatory authorities (states andEPA regions) to understand how category facilities are permitted; (5)NPDES permits and their supporting fact sheets; (6) monitoring dataincluded in facility applications for NPDES permit renewals (Form 2Cdata); (7) EPA effluent guidelines technical development documents; (8)relevant EPA preliminary data summaries or study reports; (9) technicalliterature on pollutant sources and control technologies; (10)information provided by industry including industry conducted surveyand sampling data; and (11) stakeholder comments (see DCN 04247).Additionally, in order to evaluate available and affordable treatmenttechnology options for the coalbed methane extraction industry sector,EPA intends to submit an Information Collection Request (ICR) to theOffice of Management and Budget (OMB) for its review and approval priorto publication of the final 2008 Plan.d. Public Comments    EPA's annual review process considers information provided bystakeholders regarding the need for new or revised effluent limitationsguidelines and pretreatment standards. To that end, EPA established adocket for its 2007 annual review at the time of publication of thefinal 2006 Plan to provide the public with an opportunity to submitadditional information to assist the Agency in its 2007 annual review.These public comments are in the supporting docket (EPA-HQ-OW-2006-0771, http://www.regulations.gov) and summarized in the TSD for thepreliminary 2008 Plan (see DCN 04247).B. What Were EPA's Findings From its 2007 Annual Review for CategoriesSubject to Existing Effluent Guidelines and Pretreatment Standards?1. Screening-Level Review    In its 2007 screening level review, EPA considered hazard--and theother factors described in section A.3.a. above--in prioritizingeffluent guidelines for potential revision. See Table V-1 in sectionV.B.4 of today's notice for a summary of EPA's findings with respect toeach existing category; see also the TSD for the preliminary 2008 Plan(``TSD''). Out of the categories subject only to the screening levelreview in 2007, EPA is not identifying any for effluent guidelinesrulemaking[[Page 61342]]at this time, based on the factors described in section A.3.a above andin light of the effluent guidelines rulemakings and detailed studies inprogress.    In the 2007 annual review EPA listed the industrial categoriescurrently regulated by existing effluent guidelines that cumulativelycomprise 95% of the reported hazard (reported in units of toxic-weighted pound equivalent or TWPE). The TSD presents a summary of EPA'sreview of these eleven industrial categories (see DCN 04247).2. Detailed Studies    In its 2007 annual review, EPA started or continued detailedstudies of four industrial point source categories with existingeffluent guidelines and pretreatment standards: Steam Electric PowerGenerating (Part 423), Coal Mining (Part 434), and Oil and GasExtraction (Part 435) (only to assess whether to include coalbedmethane extraction as a new subcategory), and Hospitals (Part 460)(which is part of the Health Services Industry detailed study). EPA isinvestigating whether the pollutant discharges reported to TRI and PCSfor 2004 accurately reflect the current discharges of the industry. EPAis also analyzing the reported pollutant discharges, and technologyinnovation and process changes in these industrial categories.Additionally, EPA is considering whether there are industrialactivities not currently subject to effluent guidelines or pretreatmentstandards that should be included with these existing categories,either as part of existing subcategories or as potential newsubcategories. EPA will use these detailed studies to determine whetherEPA should identify in the final 2008 Plan (or a future Plan) any ofthese industrial categories for possible revision of their existingeffluent guidelines and pretreatment standards. EPA's reviews of threeof these four categories are described below and its review of hospitalsis 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 CFR423) apply to a subset of the electric power industry, namely thosefacilities ``primarily engaged in the generation of electricity fordistribution and sale which results primarily from a process utilizingfossil-type fuel (coal, oil, or gas) or nuclear fuel in conjunctionwith a thermal cycle employing the steam water system as thethermodynamic medium.'' See 40 CFR 423.10. EPA's most recent revisionsto the effluent guidelines and standards for this category werepromulgated in 1982 (see November 19, 1982; 47 FR 52290).    EPA previously found that facilities in the Steam Electric PowerGenerating point source category collectively discharge relatively highamounts of toxic pollutants (as measured in toxic-weighted poundequivalents (TWPE)). See Tables 5-3 and 5-4 of the TSD for the final2006 Plan, EPA-HQ-OW-2004-0032-2782, and Section 5.4.4.7 of the TSD forthe final 2004 Plan, EPA-HQ-OW-2003-0074-1346 through 1351. The 2007annual review again identified this category as the second-largestdischarger of toxic pollutants (see DCN 04247). EPA also determinedthat PCS and TRI data provide an incomplete picture of the wastewatersgenerated by the regulated steam electric industry. For example, EPAanticipates greater amounts of nitrogen compounds, selenium, and othermetals, most of which are not regulated by the effluent guidelines, andtherefore, may not be reported to TRI or PCS, in steam electricwastewaters as a result of the increasing use of air pollution controls(see Interim Detailed Study Report for the Steam Electric PowerGenerating Point Source Category, November 2006, EPA-HQ-OW-2004-0032-2781). Consequently, EPA focused on supplementing its review of PCS andTRI data for this category with additional data collection as describedbelow and in the supporting docket (see DCN 04247).    The detailed study for the Steam Electric Power Generating pointsource category is mainly focused on: (1) Characterizing the mass andconcentrations of pollutants in wastewater discharges from coal-firedsteam electric facilities; and (2) identifying the pollutants thatcomprise a significant portion of the category's TWPE dischargeestimate and the corresponding industrial operation. Waste streams ofparticular interest include cooling water, fly ash and bottom ashwastes, coal pile runoff, and discharges from wet air pollution controldevices [e.g., wet flue gas desulfurization (FGD)]. EPA's previousannual reviews have identified that: (1) The TWPE discharge estimatefor this category is predominantly driven by the metals present inwastewater discharges; and (2) the waste streams contributing themajority of these metals are associated with ash handling and wet FGDsystems (see EPA-HQ-OW-2004-0032-2781). Other potential sources ofmetals include coal pile runoff, metal/chemical cleaning wastes, coalwashing, and certain low volume wastes. EPA is collecting data for thedetailed study through facility inspections, wastewater sampling, adata request that was sent to a limited number of companies, andvarious secondary data sources (see DCN 04711).    EPA is conducting wastewater sampling of ash ponds and FGDwastewater treatment systems at several steam electric facilities.Samples collected are being analyzed for metals and classicalpollutants, such as total suspended solids and nitrogen. EPA selectedthe plants for sampling based on characteristics and processconfigurations of interest. Factors taken into consideration includethe type of fuel, type of wet FGD systems in operation, fly ashhandling practices, nitrogen oxides (NOX) controls (e.g.,selective catalytic reduction systems), and wastewater treatmenttechnologies. See the following document for information about thesample collection methodologies, analytes of interest, and laboratoryanalytical methods: ``Generic Sampling and Analysis Plan for Coal-FiredSteam Electric Power Plants,'' DCN 04296.    EPA also collected facility specific information using a datarequest conducted under authority of CWA section 308 (see DCN 04711).EPA sent this data request to nine companies that operate a number ofcoal-fired power plants with wet FGD systems. The data requestcomplements the wastewater sampling effort as it collects facility-specific information about wastewaters EPA is not sampling.Additionally, the data request collects detailed information aboutwastewater generation rates and management practices for wastewatersincluded in EPA's sampling program. The data request seeks informationon selected wastewater sources, air pollution controls, wastewatermanagement and treatment practices, water reuse/recycle, and treatmentsystem capital and operating costs.b. Coal Mining (Part 434)    As discussed in the ``Notice of Availability of Final 2006 EffluentGuidelines Program Plan'' EPA is conducting a detailed study during the2007 and 2008 annual reviews to evaluate the merits of comments bystates, industry, and a public interest group that urged revisions topollutant limitations in the Coal Mining effluent guidelines (40 CFRPart 434) (see December 21, 2006; 71 FR 76644-76667). The InterstateMining Compact Commission, which represents mining agencies in 35states, together with a few individual state agencies, and a few[[Page 61343]]mining companies, asked EPA to remove the current manganese limitationsand allow permittees to employ best management practices as necessaryto reduce manganese discharges based on the quality of receivingwaterbodies.    The public interest group, the Environmental Law and Policy Center,asked EPA to place greater controls on coal mining discharges ofsulfates, chlorides, mercury, cadmium, manganese, selenium, and otherunspecified pollutants.    State and industry commentors cited the following factors insupport of their comments: (1) New, more stringent coal miningreclamation bonding requirements on post-closure discharges; (2)evidence that current manganese limitations are more stringent thannecessary to protect aquatic life; (3) perception that high cost ofmanganese treatment is causing permittees to default on their post-closure bonds; and (4) perception that treatment with chemical additionmay complicate permit compliance, especially after a mine is closed.The public interest group referenced a study by EPA Region 5 onpotential adverse impacts of the discharge of sulfates on aquatic life(see DCN 2487).    EPA initiated the Coal Mining Detailed Study in January 2007. Thestudy follows the framework presented in the Detailed Study Plan, adraft of which the Agency placed into the docket (see DCN 2488) duringthe Fall of 2006. EPA revised and finalized the Detailed Study Plan inApril 2007 to reflect public comments. The study will evaluatetreatment technologies, costs, and pollutant discharge loads, as wellas the effects of manganese and other pollutants on aquatic life. Thestudy will also address the question of whether bonds are beingforfeited because of the cost of manganese treatment by examiningbonding and trust fund requirements, past bond forfeiture rates, futurepotential bond forfeiture rates, and the issues related to stateassumption of long-term water treatment responsibilities for mineswhere the bonds have been forfeited. As outlined in the Detailed StudyPlan, EPA has framed study questions based on public comment,identified data sources to help answer the study questions, developed amethodology for estimating treatment costs and discharge loads, andinitiated data collection activities with the Interstate Mining CompactCommission, 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 productswhich will be summarized in the 2008 final report: An industryfinancial profile which will include information about the types andlocations of mines, ownership, and revenues; a summary of state andfederal permitting requirements; a summary of bonding and trust fundrequirements for control of water discharges from post-mining sites; ananalysis of bond forfeiture and the consequences for the states; ananalysis of treatment technologies, costs, and pollutant dischargeloads; and an environmental summary of the aquatic life effects ofmanganese and other pollutants.    During 2007, EPA plans to complete data collection, complete theindustry financial profile, begin analysis of bonding and trust fundissues, and begin analysis of treatment costs and discharge loads.During 2008, EPA will complete analysis of bonding and trust fundissues, complete estimates of treatment costs and discharge loads,complete its analysis of bond defaults, complete the summary ofenvironmental impacts, and complete the final report.    EPA will use the results of the Coal Mining Detailed Study, whichwill be summarized in the 2008 annual review, to help decideappropriate regulatory steps.c. Oil and Gas Extraction (Part 435) (Only To Assess Whether To IncludeCoalbed Methane Extraction as a New Subcategory)    As discussed in the 2006 annual review, EPA is conducting adetailed study of the coalbed methane industry to determine whether torevise the effluent guidelines for the Oil and Gas Extraction categoryto include limits for this potential new subcategory (see December 21,2006; 71 FR 76656). The coalbed methane (CBM) industrial sector is animportant 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 productionand is expanding in multiple basins across the Nation. Currently, theDepartment of Energy's Energy Information Administration (EIA) expectsCBM production to remain an important source of domestic natural gasover the next few decades. Based on Bureau of Land Management (BLM) andStates' projections this will likely involve over 100,000 CBM wells.The growth in the CBM industrial sector can be explained by thedecrease in drilling and transmission costs in getting the CBM tomarket, clarity of gas ownership, and the increase of long-term naturalgas prices. See Section 6 of the TSD for the final 2006 Plan, EPA-HQ-OW-2004-0032-2782, December 2006. EPA identified the CBM extractionindustry as a potential new subcategory of the Oil and Gas Extractioncategory (40 CFR 435) in the 2006 annual review (see December 21, 2006;71 FR 76656).    Coalbed methane (CBM) extraction requires removal of large amountsof water from underground coal seams before CBM can be released. CBMwells have a distinctive production history characterized by an earlystage when large amounts of water are produced to reduce reservoirpressure which in turn encourages release of gas; a stable stage whenquantities of produced gas increase as the quantities of produced waterdecrease; and a late stage when the amount of gas produced declines andwater production remains low (see EPA-HQ-OW-2004-0032-1904). Thequantity and quality of water that is produced in association with CBMdevelopment 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 electricalconductivity (EC) are bulk parameters used for quantifying the totalamount of dissolved solids in a wastewater and that may also be used toquantify and control the amount of pollutants in CBM produced waters.Equally important in preventing environmental damage is controlling thesodicity of the CBM produced waters. Sodicity is often quantified asthe sodium adsorption ratio (SAR), which is expressed as the ratio ofsodium ions to calcium and magnesium ions, and is an important factorin controlling the produced water's suitability for irrigation and itspotential for degrading soils. All of these parameters can potentiallyaffect environmental impacts as well as potential beneficial uses ofCBM produced water.    Impacts to surface water from discharges of CBM produced waters canbe severe depending upon the quality of the CBM produced waters. Salinedischarges have variable effects depending on the biology of thereceiving stream. Some waterbodies and watersheds may be able to absorbthe discharged water while others are sensitive to large amounts oflow-quality CBM water. For example, large surface waters withsufficient dilution capacity or marine waters are less sensitive tosaline discharges than smaller freshwater surface waters. Discharge of[[Page 61344]]these CBM produced waters may also cause erosion and in some casesirreversible soil damage from elevated TDS concentrations and SARvalues. This may limit future agricultural and livestock uses of thewater and watershed.    Currently, regulatory controls for CBM produced waters vary fromState 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 permitprograms and industry on the current regulatory controls across thedifferent CBM basins.    EPA indicated in the 2006 annual review that it will need to gathermore specific information as part of a detailed review of the coalbedmethane industry in order to determine whether it would be appropriateto conduct a rulemaking to potentially revise the effluent guidelinesfor the Oil and Gas Extraction category to include limits for CBM. Inparticular, EPA will need to collect technical, economic, andenvironmental 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 andapproval under the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, etseq. EPA is working with stakeholders in the design of this industrysurvey (see DCN 04247). EPA solicits comment on the potential scope andmethodology of this ICR. See section IX.C for a list of questions thatEPA will use to develop the ICR. EPA expects to distribute the ICR inlate summer of 2008.    EPA is also collecting discharge related information from five sitevisit trips to support this detailed study (see DCN 04247), andcollecting data from other secondary sources to supplement its currentunderstanding of the CBM industrial sector. EPA is specificallygathering data on available and affordable beneficial use and treatmenttechnology options, and potential impacts of CBM produced waterdischarges. A summary of the data collected for this detailed study isprovided in the TSD for the 2007 annual review.3. Results of Preliminary Category Reviews    During the 2006 annual review, EPA identified two categories withpotentially high TWPE discharge estimates for preliminary categoryreview: Ore Mining and Dressing (Part 440) and Textile Mills (Part 410)(i.e., EPA identified these categories with ``(5)'' in the columnentitled ``Findings'' in Table V-1, Page 76657 of the final 2006 Plan).EPA concluded its preliminary category review of the Textile Millscategory in the 2007 annual review and has determined that the TextileMills category is not among those industrial categories currentlyregulated by existing effluent guidelines that cumulatively comprise95% of the reported hazard (reported in units of toxic-weighted poundequivalent or TWPE) (see DCN 04247). As such, it has a low priority foreffluent guideline revision at this time. EPA has yet to complete itspreliminary category review of the Ore Mining and Dressing category.Section IX of this notice and the TSD lists the data and informationthat EPA would like to collect on the pollutant discharges andpotential treatment technology options for the Ore Mining and Dressingcategory in order to complete this preliminary category review.    Additionally and as noted above, EPA identified two additionalcategories for preliminary category review as a result of the 2007annual review: Centralized Waste Treatment (Part 437) and WasteCombustors (Part 444). EPA applied less scrutiny to these categories inthe 2002, 2004, and 2006 biennial planning cycles as EPA effluentguidelines and pretreatment standards for these categories werepromulgated in 2000. As discussed in section V.A.3.a, EPA generallyapplies less scrutiny to industrial categories for which EPA haspromulgated effluent guidelines or pretreatment standards within thepast seven years of the current biennial review. However, because thisseven year period has elapsed and because of the relative high hazardranking of these categories, EPA plans to conduct a preliminarycategory review of both categories in its 2008 annual review. SectionIX and the TSD list data and information that EPA would like to collecton the pollutant discharges and potential treatment technology optionsfor these two categories in order to complete these preliminarycategory reviews.    EPA is not identifying any of these three categories (Ore Miningand Dressing, Centralized Waste Treatment, and Waste Combustors) for aneffluent guidelines rulemaking in this preliminary 2008 Plan. However,EPA is identifying these categories for new or on-going preliminarycategory reviews in the 2008 annual review (i.e., these categories aremarked with ``(5)'' in the ``Findings'' column in Table V-1 in sectionV.B.4 of today's notice). The docket accompanying this notice presentsa summary of EPA's findings on these three industrial categories (seeDCN 04247).4. Summary of 2007 Annual Review Findings    In its 2007 annual review, EPA reviewed all categories subject toexisting effluent guidelines and pretreatment standards in order toidentify appropriate candidates for revision. Based on this review, andin light of effluent guidelines rulemakings and detailed studiescurrently in progress, EPA is not identifying any existing categoriesfor effluent guidelines rulemaking. EPA is, however, conductingdetailed studies for four existing categories: Steam Electric PowerGenerating, Coal Mining, Oil and Gas Extraction (only with respect tocoalbed methane), and Hospitals (part of the Health Services Industrydetailed study).    A summary of the findings of the 2007 annual review is presentedbelow in Table V-1. This table uses the following codes to describe theAgency(s findings with respect to each existing industrial category.    (1) Effluent guidelines or pretreatment standards for thisindustrial category were recently revised or reviewed through aneffluent guidelines rulemaking, or a rulemaking is currently underway.    (2) Revising the national effluent guidelines or pretreatmentstandards is not the best tool for this industrial category becausemost of the toxic and non-conventional pollutant discharges are fromone or a few facilities in this industrial category. EPA will considerassisting permitting authorities in identifying pollutant control andpollution prevention technologies for the development of technology-based effluent limitations by best professional judgment (BPJ) on afacility-specific basis.    (3) Not identified as a hazard priority based on data available atthis time (e.g., not among industries that cumulatively comprise 95% ofreported hazard in TWPE units).    (4) EPA intends to continue a detailed study of this industry inits 2008 annual review to determine whether to identify the categoryfor effluent guidelines rulemaking.[[Page 61345]]    (5) EPA is continuing or initiating a preliminary category reviewbecause incomplete data are available to determine whether to conduct adetailed study or identify for possible revision. EPA typicallyperforms a further assessment of the pollutant discharges beforestarting a detailed study of the industrial category. This assessmentprovides an additional level of quality assurance on the reportedpollutant discharges and number of facilities that represent themajority of toxic-weighted pollutant discharges. EPA may also develop apreliminary list of potential wastewater pollutant control technologiesbefore conducting a detailed study. See the appropriate section in theTSD (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 andPretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), and307(b)    As discussed in section V and further in section VIII, EPA iscoordinating its annual reviews of existing effluent guidelines andpretreatment standards under CWA sections 301(d), 304(b), 307(b), and304(g) with the publication of preliminary Plans and biennial Plansunder section 304(m). Public comments received on EPA's prior reviewsand Plans helped the Agency prioritize its analysis of existingeffluent guidelines and pretreatment standards during the 2007 review.The information gathered during the 2007 annual review, including theidentification of data gaps in the analysis of certain categories withexisting regulations, in turn, provides a starting point for EPA's 2008annual review. See Table V-1 in section V.B.4 of today's notice. In2008, EPA intends to again conduct a screening-level analysis of all 56categories and compare the results against those from previous years.EPA will also conduct further review of the industrial categoriescurrently regulated by existing effluent guidelines that cumulativelycomprise 95% of the reported hazard (reported in units of toxic-weighted pound equivalent or TWPE). Additionally, EPA intends tocontinue detailed studies of the following categories with existingeffluent guidelines and pretreatment standards: Steam Electric PowerGenerating (Part 423), Coal Mining (Part 434), Oil and Gas Extraction(Part 435) (only to assess whether to include coalbed methaneextraction as a new subcategory) and Hospitals (Part 460) (which ispart of the Health Services Industry detailed study). EPA isidentifying three categories (Ore Mining and Dressing, CentralizedWaste Treatment, and Waste Combustors) for a preliminary categoryreview in the 2008 annual review. EPA invites comment and data on thefour detailed studies, the three preliminary category reviews, and allremaining point source categories.VII. EPA's Evaluation of Categories of Indirect Dischargers WithoutCategorical Pretreatment Standards To Identify Potential New Categoriesfor Pretreatment StandardsA. EPA's Evaluation of Pass Through and Interference of Toxic and Non-conventional Pollutants Discharged to POTWs    All indirect dischargers are subject to general pretreatmentstandards (40 CFR 403), including a prohibition on discharges causing``pass through'' or ``interference.'' See 40 CFR 403.5. All POTWs withapproved pretreatment programs must develop local limits to implementthe general pretreatment standards. All other POTWs must develop suchlocal limits where they have experienced ``pass through'' or``interference'' and such a violation is likely to recur. There areapproximately 1,500 POTWs with approved pretreatment programs and13,500 small POTWs that are not required to develop and implementpretreatment programs.    In addition, EPA establishes technology-based national regulations,termed ``categorical pretreatment standards,'' for categories ofindustry discharging pollutants to POTWs that may pass through,interfere with or otherwise be incompatible with POTW operations. CWAsection 307(b). Generally, categorical pretreatment standards aredesigned such that wastewaters from direct and indirect industrialdischargers are subject to similar levels of treatment. EPA haspromulgated such pretreatment standards for 35 industrial categories.    Historically, for most effluent guidelines rulemakings, EPAdetermines the potential for ``pass through'' by comparing thepercentage of the pollutant removed by well-operated POTWs achievingsecondary treatment with the percentage of the pollutant removed bywastewater treatment options that EPA is evaluating as the bases forcategorical pretreatment standards (January 28, 1981; 46 FR 9408).    The term ``interference'' means a discharge which, alone or inconjunction with a discharge or discharges from other sources, both:(1) Inhibits or disrupts the POTW, its treatment processes oroperations, or its sludge processes, use or disposal; and (2) thereforeis 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) orof the prevention of sewage sludge use or disposal in compliance withapplicable regulations or permits. See 40 CFR 403.3(i). To determinethe potential for ``interference,'' EPA generally evaluates theindustrial indirect discharges in terms of: (1) The compatibility ofindustrial wastewaters and domestic wastewaters (e.g., type ofpollutants discharged in industrial wastewaters compared to pollutantstypically found in domestic wastewaters); (2) concentrations ofpollutants discharged in industrial wastewaters that might causeinterference with the POTW collection system, the POTW treatmentsystem, or biosolids disposal options; and (3) the potential forvariable pollutant loadings to cause interference with POTW operations(e.g., batch discharges or slug loadings from industrial facilitiesinterfering with normal POTW operations).    If EPA determines a category of indirect dischargers causes passthrough or interference, EPA would then consider the BAT and BPTfactors (including ``such other factors as the Administrator deemsappropriate'') specified in section 304(b) to determine whether toestablish pretreatment standards for these activities. Examples of``such other factors'' include a consideration of the magnitude of thehazard posed by the pollutants discharged as measured by: (1) The totalannual TWPE discharged by the industrial sector; and (2) the averageTWPE discharge among facilities that discharge to POTWs. Additionally,EPA would consider whether other regulatory tools (e.g., use of locallimits under Part 403) or voluntary measures would better control thepollutant discharges from this category of indirect dischargers. Forexample, EPA relied on a similar evaluation of ``pass throughpotential'' in its prior decision not to[[Page 61347]]promulgate national categorical pretreatment standards for theIndustrial Laundries industry. See 64 FR 45071 (August 18, 1999). EPAnoted in this 1999 final action that, ``While EPA has broad discretionto promulgate such [national categorical pretreatment] standards, EPAretains discretion not to do so where the total pounds removed do notwarrant national regulation and there is not a significant concern withpass through and interference at the POTW.'' See 64 FR 45077 (August18, 1999).    EPA reviewed TRI data in order to identify industry categorieswithout categorical pretreatment standards that are dischargingpollutants to POTWs that may pass through, interfere with or otherwisebe incompatible with POTW operations (see DCN 04247). This review didnot identify any such industrial categories. EPA also evaluatedstakeholder comments and pollutant discharge information in theprevious annual reviews to inform this review. In particular,commenters on the 2004 and 2006 annual reviews raised concerns aboutdischarges of emerging pollutants of concern such as endocrinedisruptors and mercury discharges from dentists and health servicefacilities and urged EPA to consider establishing effluent guidelinesand pretreatment standards for such discharges. In response to thesecomments, EPA investigated the Health Services Industry in its 2006annual review and found that it did not have readily availableinformation to make an informed decision on the potential for ``passthrough'' or ``interference.'' Consequently, EPA identified thisindustrial category for detailed study in its 2007 and 2008 annualreviews. EPA also solicits comment and data on all industrial sectorsnot currently subject to categorical pretreatment standards for its2008 review. Finally, EPA solicits comment on methods for aggregatingpollutant discharge data collected by pretreatment programs to furtherinform its future review of industry categories without categoricalpretreatment standards.B. Health Services Industry Detailed Study    The Health Services Industry includes establishments engaged invarious aspects of human health (e.g. hospitals, dentists, long-termcare facilities) and animal health (e.g., veterinarians). Healthservices establishments fall under SIC major group 80 ``HealthServices'' and industry group 074 ``Veterinary Services.'' According tothe 2002 Census, there are over 475,000 facilities in the HealthServices Industry (see EPA-HQ-OW-2004-0032-1615). EPA is including thefollowing sectors within the Health Services Industry in its detailedstudy: Offices and Clinics of Dentists; Doctors and Mental HealthPractitioners; Nursing and Personal Care Facilities (long-term carefacilities); Hospitals and Clinics; Medical Laboratories and DiagnosticCenters; and Veterinary Care Services (see August 29, 2005; 70 FR 51054).    All these sectors require services to be delivered by trainedprofessionals for the purpose of providing health care and socialassistance for individuals or animals. These entities may be freestanding or part of a hospital or health system and may be privately orpublicly owned. The services can include diagnostic, preventative,cosmetic, and curative health services.    The vast majority of establishments in the health servicesindustries are not subject to categorical limitations and standards. In1976, EPA promulgated 40 CFR 460 which only applies to directdischarging hospitals with greater than 1,000 occupied beds. Part 460did not establish pretreatment standards for indirect dischargingfacilities.    In evaluating the health services industries to date, EPA has foundlittle readily available information. Both PCS and TRI contain sparseinformation on health care service establishments. For 2002, PCS onlyhas data for two facilities which are considered ``major'' sources ofpollutants and only Federal facilities in the healthcare industry arerequired to report to TRI. In 1989, EPA published a Preliminary DataSummary (PDS) for the Hospitals Point Source Category (see EPA-HQ-OW-2004-0032-0782). Also, EPA's Office of Enforcement and ComplianceAssistance (OECA) published a Healthcare Sector Notebook in 2005 (seeEPA-HQ-OW-2004-0032-0729). In addition, industry and POTWs haveconducted studies to estimate pollutant discharges for some portions ofthis industry (e.g., dentists) (see EPA-HQ-OW-2004-0032-0772).    Based on preliminary information, major pollutants of concern indischarges from health care service establishments include solvents,mercury, pharmaceuticals, endocrine-disrupting compounds (EDCs), andbiohazards (e.g., items contaminated with blood) (see EPA-HQ-OW-2004-0032-0729). The majority of the mercury originates from the followingsources: amalgam used in dental facilities and medical equipment,laboratory reagents, and cleaning supplies used in healthcarefacilities (see EPA-HQ-OW-2004-0032-0038 and 2391). EPA found little tono quantitative information on wastewater discharges of emergingpollutants of concern such as pharmaceuticals and EDCs but was able toidentify some information on biohazards (see DCN 04274).    As described above, the Health Services Industry is expansive andcontains approximately half a million facilities. Because of the sizeand diversity of this category and other resource constraints, EPAdecided to focus its detailed study on certain subcategories ofdischargers. EPA selected its focus areas, for the most part, torespond to stakeholder concerns. The focus areas are:    • Dental mercury: EPA is focusing its evaluation on mercurydischarges from the offices and clinics of dentists due to thepotential hazard and bioaccumulative properties associated with mercury.    • Unused pharmaceuticals: EPA is focusing its evaluation onunused or leftover pharmaceuticals from health service facilities dueto the growing concern over the discharge of pharmaceuticals into waterand the potential environmental effects.    Unused pharmaceuticals include dispensed prescriptions thatpatients do not use as well as materials that are beyond theirexpiration 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'' doesnot include excreted pharmaceuticals. In particular, EPA is evaluatingdisposed unused pharmaceutical practices from the following sectors:    • Physicians offices    • Nursing and personal care facilities (including long-termcare facilities);    • Veterinary care services; and    • Hospitals and clinics.    The Agency notes that it has an overall interest in mercuryreduction and on July 5, 2006, issued a report titled, ``EPA's Roadmapfor Mercury,'' (see DCN 03035). Among other things, EPA's reporthighlights mercury sources and describes progress to date in addressingmercury sources. Similarly, assessing pharmaceuticals in wastewater ispart of the Agency's Strategic Plan (2006-2011) to meet its goals ofclean and safe water, (see http://www.epa.gov/ocfo/plan/plan.htm). EPAis concerned about pharmaceuticals in the environment and is working onthis issue in many different areas. Currently, the Agency is: (1)Developing analytical methods to measure pharmaceuticals in wastewaterand 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 drugsto wastewater. Additionally, the Agency is considering amending itshazardous waste regulations to add hazardous pharmaceuticals to theuniversal waste system to facilitate its oversight of the disposal ofpharmaceutical waste (40 CFR 273) (see RIN 2050-AG39, April 30, 2007;72 FR 23170).    While stakeholders and EPA are concerned about EDC discharges, EPAhas found only limited data on EDCs. In order to fill in some of thesedata gaps, in conjunction with its Health Services Industry detailedstudy, EPA is conducting a POTW study that, among other things, has thegoal of developing wastewater analytical methods for certainpollutants, characterizing the presence of chemicals such assurfactants and pharmaceuticals in POTW wastewaters and evaluating POTWtreatment technology effectiveness in reducing such pollutantdischarges. To the extent that the results of the POTW studies becomeavailable during the term of this Health Services Industry detailedstudy, EPA will include relevant information in this study.    The Health Services Study is described in more detail in EPA'sDraft Detailed Study Plan for the Health Services Industry (see DCN05067) and Overview of EPA's Detailed Study of the Health Services (seeDCN 05080). As explained there, EPA is researching the followingquestions/topics as they relate to disposal of mercury and unusedpharmaceuticals into municipal sewer systems:    • What are the current industry practices in regards todisposal of unused pharmaceuticals and mercury? To what extent are eachof these practices applied? What factors drive current practices?    • Are there federal, state, or local requirements orguidance for disposal of unused pharmaceuticals and/or mercury? Whatare 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 interferenceproblems related to unused pharmaceuticals or mercury discharges?    • What technologies are available: (1) As alternatives towastewater disposal; and (2) to control pollutant discharges. Is thereany qualitative or quantitative information on their efficiency?    • What Best Management Practices (BMPs) are used asalternatives to wastewater disposal and/or to control discharges and isthere any qualitative or quantitative information on their efficiency?    • Is there any quantitative or qualitative information onthe costs associated with identified technologies and/or BMPs?1. Dental Mercury    Across the United States, states and municipal wastewater treatmentplants (publicly owned treatment works (POTWs)) are working toward thegoal of reducing discharges of mercury into collection systems. Manystudies have been conducted in an attempt to identify the sources ofmercury entering these collection systems. According to the 2002Mercury Source Control and Pollution Prevention Program Final Reportprepared for the National Association of Clean Water Agencies (NACWA),dental clinics are the main source of mercury discharges to POTWs. TheAmerican Dental Association (ADA) estimated in 2003 that 50% of mercuryentering POTWs was contributed by dental offices.    EPA estimates there are approximately 130,000 dental offices in theUnited States--almost all of which discharge their wastewaterexclusively to POTWs. Mercury in dental wastewater originates fromwaste particles associated with the placement and removal of amalgamfillings. Most dental offices currently use some type of basicfiltration system to reduce the amount of mercury solids passing intothe sewer system. However, best management practices and theinstallation of amalgam separators may reduce discharges even further.    Some states, regions, and POTWs have already implemented or areconsidering alternatives to reduce mercury discharges from dentaloffices. For example, a number of states have enacted legislationrequiring the installation and operation of amalgam separators or useof best management practices (see DCN 04668). EPA Region 5 publishedguidance for permitting dental mercury discharges (see DCN 05024). TheADA has also adopted and published best management practices for itsmembers. On October 2, 2007, the ADA updated its best managementpractices to include the use of amalgam separators (see DCN 05087). SeeDCN 04668 for a compilation of the information EPA has collected todate on existing guidance and requirements for dental mercury.    In 2007, EPA has focused its efforts on collecting and compilinginformation on current mercury discharges from dental offices, bestmanagement practices (BMPs), and control technologies such as amalgamseparators. For control technologies and BMPs, EPA has looked at thefrequency with which each is currently used; their effectiveness inreducing discharges to POTWs; and the capital and annual costsassociated with their installation and operation (see DCN 04851 and04852). EPA encourages all stakeholders to review the informationcollected to date and provide additional information, if available. EPAis particularly interested in quantitative information on theeffectiveness and costs of implementing best management practices.    At this time, EPA does not know if its investigation will lead tothe development of national, categorical pretreatment standards fordental mercury discharges. While this is a possibility, EPA is aware ofa number of successful local programs and has identified that there aremany opportunities for pollution prevention and adoption of BMPswithout federal regulation. It appears that the dental industry is alreadyactively working towards voluntarily reducing its mercury discharges.2. Unused Pharmaceuticals    Stakeholders have expressed concern over the discharge ofpharmaceuticals into water and its environmental effects. Recentstudies have indicated the presence of pharmaceuticals in waters of theU.S. See Pharmaceuticals, Hormones, and Other Organic WastewaterContaminants in U.S. Streams, USGS Fact Sheet FS-027-02, June 2002 (seeDCN 04854). Recent studies have also shown the presence ofpharmaceuticals directly downstream of POTWs (see DCN 05071). To date,EPA has found little quantitative information on the origin ofpharmaceuticals in municipal wastewaters. There is even less data onthe quantity of pharmaceuticals entering and leaving wastewatertreatment plants. The discharge of pharmaceuticals to these treatmentplants, 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 ofunused, expired, and unwanted medications (``unused pharmaceuticals'')down the drain or toilet, which then may pass through the POTW and onto surface waters. Given this concern, EPA plans to collect informationfrom the Health Services Industry to better understand pharmaceuticaldischarges to POTWs and to make informed decisions. POTWs are notspecifically designed to remove the wide range of[[Page 61349]]pharmaceuticals, and often the treatment plant removal efficiencies areunknown. The full spectrum of pharmaceuticals occurring in POTWeffluent is not yet known, and for those that are present, the POTWremoval efficiency is a function of the treatment technology employedand will vary from drug to drug. As a result, unused pharmaceuticalsmay have the potential to cause interference or to pass throughmunicipal wastewater treatment plants.    In order to obtain further quantitative information on unusedpharmaceuticals in Health Service Industry wastewaters, EPA plans tosend a data request to targeted long-term care facilities, hospitals,and veterinarians. EPA is interested in obtaining the recordsfacilities keep to track disposal of unused pharmaceuticals and theirquantities. EPA especially wants to know how much and how often unusedpharmaceuticals are disposed of via the sink or toilet, and what drivessuch practices.    There are best management practices (BMPs) and alternatives todisposing 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 mailand physical drop off locations (e.g., reverse distribution brokers orcenters). These take back programs are typically only available forpharmaceuticals that have not been sold and are not available toconsumers. EPA is exploring the utility of take back programs and hasgiven a grant to the University of Maine Center on Aging to devise,implement and evaluate a mail back plan for consumers to return unusedover the counter and prescription medications. A network of 75distribution points located at pharmacies will provide for mailer pickup and drop offs. Informational materials for pharmacists, staff andconsumers regarding the mailers will be developed and distributed. Inaddition, the pilot will test the effectiveness of an educationalcampaign about the hazards to life, health, and the environment posedby improper storage and disposal of unused mediations.    Many of the current disposal practices are driven by Federalrequirements or guidance. In addition to Federal rules, there are stateand local policies that influence disposal of unused pharmaceuticals.EPA will continue to evaluate disposal alternatives in context of theexisting requirements which affect disposal decisions.    At this time, EPA does not have enough information to know if thisstudy will lead to the development of a national, categoricalpretreatment standard for unused pharmaceuticals. While this is apossibility, EPA is gathering information on pollution preventionopportunities and BMPs that may provide a reasonable alternative tofederal regulation. To aid EPA in its assessment of unusedpharmaceuticals from the Health Services Industry, EPA requests commenton current practices. See section IX.VIII. The Preliminary 2008 Effluent Guidelines Program Plan UnderSection 304(m)    In accordance with CWA section 304(m)(2), EPA is publishing thispreliminary 2008 Plan for public comment prior to this publication ofthe final 2008 Plan.A. EPA's Schedule for Annual Review and Revision of Existing EffluentGuidelines 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 topublish a Plan every two years that establishes a schedule for theannual review and revision, in accordance with section 304(b), of theeffluent guidelines that EPA has promulgated under that section. Thispreliminary 2008 Plan announces EPA's schedule for performing itssection 304(b) reviews. The schedule is as follows: EPA will coordinateits annual review of existing effluent guidelines under section 304(b)with its publication of the preliminary and final Plans under CWAsection 304(m). In other words, in odd-numbered years, EPA intends tocomplete its annual review upon publication of the preliminary Planthat EPA must publish for public review and comment under CWA section304(m)(2). In even-numbered years, EPA intends to complete its annualreview upon the publication of the final Plan. EPA's 2007 annual reviewis the review cycle ending upon the publication of this preliminary2008 Plan.    EPA is coordinating its annual reviews under section 304(b) withpublication 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 thepreliminary and final Plans, e.g., by identifying candidates for ELGrevision for which EPA can schedule rulemaking in the Plan, or bycalling to EPA's attention point source categories for which EPA hasnot promulgated effluent guidelines. Second, even though not requiredto do so under either section 304(b) or section 304(m), EPA believesthat the public interest is served by periodically presenting to thepublic a description of each annual review (including the reviewprocess employed) and the results of the review. Doing so at the sametime EPA publishes preliminary and final plans makes both processesmore transparent. Third, by requiring EPA to review all existingeffluent guidelines each year, Congress appears to have intended thateach successive review would build upon the results of earlier reviews.Therefore, by describing the 2007 annual review along with thepreliminary 2008 Plan, EPA hopes to gather and receive data andinformation that will inform its reviews for 2008 and the final 2008 Plan.2. Schedule for Possible Revision of Effluent Guidelines PromulgatedUnder Section 304(b)    EPA is currently conducting rulemakings to potentially reviseexisting effluent guidelines and pretreatment standards for thefollowing categories: Organic Chemicals, Plastics and Synthetic Fibers(OCPSF) and Inorganic Chemicals (to address discharges from VinylChloride and Chlor-Alkali facilities identified for effluent guidelinesrulemaking in the final 2004 Plan, now termed the ``Chlorine andChlorinated Hydrocarbon (CCH) manufacturing'' rulemaking) andConcentrated Animal Feeding Operations (rulemaking on BCT technologyoptions for controlling fecal coliform and new source performancestandards). EPA emphasizes that identification of the rulemakingschedules for these effluent guidelines does not constitute a finaldecision to revise the guidelines. EPA may conclude at the end of theformal rulemaking process--supported by an administrative record andfollowing an opportunity for public comment--that effluent guidelinesrevisions are not appropriate for these categories. EPA is notscheduling any other existing effluent guidelines for rulemaking atthis time.B. Identification of Potential New Point Source Categories Under CWASection 304(m)(1)(B)    The final Plan must also identify categories of sources dischargingnon-trivial amounts of toxic or non-conventional pollutants for whichEPA has not published effluent limitations guidelines under section304(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 section304(m)(1)(B) applies to ``non-trivial discharges''). The final Planmust also establish a schedule for the promulgation of effluentguidelines for the categories identified under section 304(m)(1)(B),providing for final action on such rulemaking not later than threeyears after the identification of the category in a final Plan.\4\ SeeCWA section 304(m)(1)(C).---------------------------------------------------------------------------    \4\ EPA recognizes that one court--the U.S. District Court forthe Central District of California--has found that EPA has a duty topromulgate effluent guidelines within three years for new categoriesidentified in the Plan. See NRDC et al. v. EPA, 437 F.Supp.2d 1137(C.D. Ca, 2006). However, EPA continues to beileve that themandatory duty under section 304(m)(l)(c) is limited to providing aschedule for concluding the effluent guidelines rulemaking--notnecessarily promulgating effluent guidelines--within three years,and has appealed this decision.---------------------------------------------------------------------------    EPA is currently conducting rulemakings to determine whether toestablish effluent guidelines for three potential new categories (seeSeptember 2, 2004; 69 FR 53705). Two of these categories--AirportDeicing Operations and Drinking Water Treatment--were identified aspotential new categories in the final 2004 Plan. EPA initiatedrulemaking 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 EPArespectfully disagrees with this decision, and does not believe that itis required to promulgate effluent guidelines for this potential newcategory, EPA is conducting the rulemaking ordered by the court pendingappeal of the Court's decision. For the reasons discussed below, EPA isnot at this time proposing to identify any other potential newcategories for effluent guidelines rulemaking and therefore is notscheduling effluent guidelines rulemaking for any such categories inthis preliminary Plan.    In order to identify industries not currently subject to effluentguidelines, EPA primarily used data from TRI and PCS. Facilities withdata in TRI and PCS are identified by a four-digit SIC code (see DCN04247). EPA performs a crosswalk between the TRI and PCS data,identified with the four digit SIC code, and the 56 point sourcecategories with effluent guidelines or pretreatment standards todetermine if a four-digit SIC code is currently regulated by existingeffluent guidelines (see DCN 04247). EPA also relied on commentsreceived on its previous 304(m) plans to identify potential newcategories. EPA then assessed whether these industrial sectors notcurrently regulated by effluent guidelines meet the criteria specifiedin 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 effluentguidelines. Because this section does not define the term``categories,'' EPA interprets this term based on the use of the termin other sections of the Clean Water Act, legislative history, andSupreme 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 productproduced or service provided, and is not meant to refer to specificindustrial activities or processes involved in generating the productor service. EPA therefore identifies in its biennial Plan only thosenew industries that it determines are properly considered stand-alone``categories'' within the meaning of the Act--not those that areproperly considered potential new subcategories of existing categoriesbased on similarity of product or service.    The use of the term ``categories'' in other provisions of the CWAindicates that a ``category'' encompasses a broad array of industrialoperations related by similarity of product or service provided. Forexample, CWA section 306(b)(1)(A) provides a list of ``categories ofsources'' (for purposes of new source performance standards) thatincludes ``pulp and paper mills,'' ``petroleum refining,'' ``iron andsteel manufacturing,'' and ``leather tanning and finishing.'' Theseexamples suggest that a ``category'' is intended to encompass adiversity of facilities engaged in production of a similar product orprovision of a similar service. See also CWA section 402(e) and (f)(indicating that ``categories'' are comprised of smaller subsets suchas ``class, type, and size''). In the effluent guidelines program, EPAuses these factors, among others, to define ``subcategories'' of alarger industrial category.    The legislative history of later amendments to CWA section 304indicates 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 LegislativeHistory of the Clean Water Act of 1977, prepared by the EnvironmentalPolicy Division of the Congressional Research Service of the Library ofCongress (Comm. Print 1978) at 455 (indicating that BAT calls for theexamination of ``each industry category or subcategory''). See alsoChemical Manufacturers' Association v. EPA, 470 U.S. 116, 130 (1985)(interpreting this legislative history as ``admonish[ing] [EPA] to takeinto account the diversity within each industry by establishingappropriate subcategories.''). Therefore, in light of Congress'awareness of the distinction between categories and subcategories, EPAreasonably assumes that Congress' use in 1987 of the term``categories'' in section 304(m)(1)(B) was intentional. If Congress hadintended 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 discretionover its internal planning processes by requiring identification ofpotential new ``subcategories'' in the Plan. See Norton v. SouthernUtah Wilderness Alliance et al, 124 S Ct. 2373, 2383 (2004) (findingthat a statutory mandate must be sufficiently specific in order toconstrain agency discretion over its internal planning processes).    Moreover, the distinction between a category and a subcategory haslong 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 establishessubcategories to reflect ``differences among segments of the industry''based on the factors that EPA must consider in establishing effluentlimitations. 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 anexisting category * * * of point sources.''). Indeed, the effluentguidelines considered by the Supreme Court in Du Pont case was dividedinto 22 subcategories, each with its own set of technology-basedlimitations, reflecting variations in processes and pollutants. Id. at22 and nn. 9 and 10. See also id. at 132 (noting that legislativehistory ``can be fairly read to allow the use of subcategories based onfactors such as size, age, and unit processes.'').    EPA's interpretation of the term ``categories'' is consistent withlongstanding Agency practice. Pursuant to CWA section 304(b), whichrequires EPA to establish effluent guidelines for ``classes andcategories of point sources,'' EPA has promulgated effluent guidelinesfor 56 industrial ``categories.'' Each of these ``categories'' consistsof a broad array of facilities that produce a similar product orperform 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 factorsassociated with the production of that product that EPA is required toconsider in establishing effluent guidelines under section 304(b). Forexample, the ``Pulp, Paper and Paperboard point source category'' (40CFR part 430) encompasses a diverse range of industrial facilitiesinvolved in the manufacture of a like product (paper); the facilitiesrange from mills that produce the raw material (pulp) to facilitiesthat manufacture end-products such as newsprint or tissue paper. EPA'sclassification of this ``industry by major production processes usedmany 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, purchasedpulp); products manufactured (e.g., unbleached pulp, bleached pulp,finished paper products); and, to a large extent, untreated and treatedwastewater characteristics (e.g., BOD loadings, presence of toxicchlorinated compounds from pulp bleaching) and process water usage anddischarge rates.'' \5\ Each subcategory reflects differences in thepollutant discharges and treatment technologies associated with eachprocess. Similarly, the ``Iron and Steel Manufacturing point sourcecategory'' (40 CFR part 420) consists of various subcategories thatreflect the diverse range of processes involved in the manufacture ofiron and steel, ranging from facilities that make the basic fuel usedin the smelting of iron ore (subpart A--Cokemaking) to those that castthe molten steel into molds to form steel products (subpart F--Continuous Casting). An example of an industry category based onsimilarity of service provided is the Transportation Equipment CleaningPoint Source Category (40 CFR Part 442), which is subcategorized basedon the type of tank (e.g., rail cars, trucks, barges) or cargotransported by the tanks cleaned by these facilities, reflectingvariations in wastewaters and treatment technologies associated with each.---------------------------------------------------------------------------    \5\ U.S. EPA, 1997. Supplemental Technical Development Documentfor 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 industrialoperation or activity in question is properly characterized as anindustry ``category'' based on similarity of product produced orservice provided, or whether it simply represents a variation (e.g. newprocess) among facilities generating the same product and is thereforeproperly characterized as a potential new subcategory. If it isproperly considered a stand-alone category in its own right, EPAaddresses it pursuant to sections 304(m)(1)(B) and (C). If EPAdetermines that it is a potential new ``subcategory,'' EPA reviews theactivity in its section 304(b) annual review of the existing categoriesin which it would belong, in order to determine whether it would beappropriate to revise the effluent guidelines for that category toinclude limits for the new subcategory.    As a practical matter, this approach makes sense. There areconstantly new processes being developed within an industry category--new ways of making paper or steel, new ways of cleaning transportationequipment, new ways of extracting oil and gas, for example. These newprocesses are closely interwoven with the processes already covered bythe existing effluent guidelines for the category--they often generatesimilar pollutants, are often performed by the same facilities, andtheir discharges can often be controlled by the same treatmenttechnology. Therefore, it is more efficient for EPA to considerindustry categories holistically by looking at these new processes whenreviewing and revising the effluent guidelines for the existingcategory. The opposite approach could lead to a situation when EPAwould do a separate effluent guidelines rulemaking every time a newindividual process emerges without considering how these newtechnologies could affect BAT for related activities. In revisingeffluent guidelines, EPA often creates new subcategories to reflect newprocesses. For example, the effluent guidelines for the pesticideschemicals category (40 CFR part 455) did not originally cover refillingestablishments because this process was developed after the limitationswere first promulgated. When EPA revised the effluent guidelines forthe Pesticides Chemicals category, EPA included refillingestablishments as a new subcategory subject to the effluent limits forthis category. The issue is not whether a guideline should be developedfor a particular activity, but whether the analysis should occur inisolation or as part of a broader review.    To ensure appropriate regulation of such new subcategories prior toEPA's promulgation of new effluent guidelines for the industrialcategory to which they belong, under EPA's regulations at 40 CFR part125.3(c), a permit writer is required to establish technology-basedeffluent limitations for these processes on a case by case, ``BestProfessional Judgment'' (BPJ) basis, considering the same factors thatEPA considers in promulgating categorical effluent limitationsguidelines. These new processes are covered by these BPJ-based effluentguidelines until the effluent guidelines for the industrial categoryare revised to include limits for these new subcategories.    EPA's approach to addressing new industries is analogous to EPA'sapproach to addressing newly identified pollutants. When EPA identifiesnew pollutants associated with the discharge from existing categories,EPA considers limits for those new pollutants in the context ofreviewing and revising the existing effluent guidelines for thatcategory. For example, EPA revised effluent limitations for thebleached papergrade kraft and soda and papergrade sulfite subcategorieswithin the Pulp, Paper, and Paperboard point source category (40 CFR430) to add BAT limitations for dioxin, which was not measurable whenEPA first promulgated these effluent guidelines and pretreatmentstandards and was not addressed by the pollutant control technologiesconsidered at that time. See 63 FR 18504 (April 15, 1998).    In short, for the reasons discussed above, EPA believes that theappropriateness of addressing a new process or pollutant discharge isbest considered in the context of revising an existing set of effluentguidelines. Accordingly, EPA analyzed similar industrial activities notregulated by existing regulations as part of its annual review ofexisting effluent guidelines and pretreatment standards.    The second criterion EPA considers when implementing section304(m)(1)(B) also derives from the plain text of that section. By itsterms, CWA section 304(m)(1)(B) applies only to industrial categoriesto which effluent guidelines under section 304(b)(2) or section 306would apply, if promulgated. Therefore, for purposes of section304(m)(1)(B), EPA would not identify in the biennial Plan anyindustrial categories comprised exclusively or almost exclusively ofindirect discharging facilities regulated under section 307. Forexample, based on its finding that the Health Services Industryconsists almost exclusively of indirect dischargers, EPA did notidentify this industry in the 2008 Plan but instead will considerwhether to adopt pretreatment standards for this industry in thecontext of its section 304(g)/307(b) review of indirect dischargers.Similarly, EPA would not identify in the Plan categories for whicheffluent guidelines do not apply, e.g.,[[Page 61352]]POTWs regulated under CWA section 301(b)(1)(B) or municipal storm waterrunoff regulated under CWA section 402(p)(3)(B).    Third, CWA section 304(m)(1)(B) applies only to industrialcategories of sources that discharge toxic or non-conventionalpollutants to waters of the United States. EPA therefore did notidentify in the Plan industrial activities for which conventionalpollutants, rather than toxic or non-conventional pollutants, are thepollutants of concern. In addition, even when toxic and non-conventional pollutants might be present in an industrial category'sdischarge, section 304(m)(1)(B) does not apply when those dischargesoccur in trivial amounts. EPA does not believe that it is necessary,nor was it Congressional intent, to develop national effluentguidelines for categories of sources that discharge trivial amounts oftoxic or non-conventional pollutants and therefore pose aninsignificant hazard to human health or the environment. See SenateReport Number 50, 99th Congress, 1st Session (1985); WQA87 LegislativeHistory 31 (see DCN 03911). This decision criterion leads EPA to focuson those remaining industrial categories where, based on currentlyavailable information, new effluent guidelines have the potential toaddress a non-trivial hazard to human health or the environmentassociated with toxic or non-conventional pollutants.    Finally, EPA interprets section 304(m)(1)(B) to give EPA thediscretion to identify in the Plan only those potential new categoriesfor which an effluent guidelines rulemaking may be an appropriate tool.Therefore, EPA does not identify in the Plan all potential newcategories discharging toxic and non-conventional pollutants. Rather,EPA identifies only those potential new categories for which itbelieves that effluent guidelines may be appropriate, taking intoaccount Agency priorities, resources and the full range of other CWAtools available for addressing industrial discharges.    This interpretation is supported by the Supreme Court's decision inNorton v. Southern Utah Wilderness Alliance et al. (124 S. Ct. 2373,2383 (2004)), which recognized the importance of agency discretion overits internal planning processes. Specifically, the Court in Norton heldthat a statute requiring an agency to ``manage wilderness study areas .. . in a manner so as not to impair the suitability of such areas'' wastoo broad to constrain the agency's discretion over its internal landuse planning processes. See also Fund for Animals et al. v. U.S. Bureauof 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.3d1108 (9th Cir. 2005) (both cases following Norton line of reasoning tofind that statutory mandate was not sufficiently specific to constrainagency discretion over its internal planning processes). In this case,the statutory mandate at issue--establish technology-based effluentlimits that take into account a range of factors including ``such otherfactors as the Administrator deems appropriate''--also lacks thespecificity to constrain the Agency's discretion over its effluentguidelines planning process. See CWA section 304(b)(2)(B). This broadstatutory mandate gives EPA the discretion to identify in its section304(m) Plan only those industrial categories for which it determinesthat effluent guidelines would be ``appropriate'' and to rely on otherCWA tools--such as site-specific technology based limitations developedby permit writers on a BPJ basis--when it determines that such toolswould be a more effective and efficient way of increasing thestringency of pollution control through NPDES permits.    Congress specifically accorded EPA with the discretion to choosethe appropriate tool for pressing the development of new technologies,authorizing EPA to develop technology-based effluent limitations usinga site-specific BPJ approach under CWA section 402(a)(1), rather thanpursuant to an effluent guidelines rulemaking. See CWA section301(b)(3)(B). Significantly, section 301(b)(3)(B) was enactedcontemporaneously with section 304(m) and its planning process,suggesting that Congress contemplated the use of both tools, with thechoice of tools in any given 304(m) plan left to the Administrator'sdiscretion. The Clean Water Act requirement that EPA develop aneffluent guidelines plan--when coupled with the broad statutory mandateto consider ``appropriate'' factors in establishing technology-basedeffluent limitations and the direction to establish such limitationseither through effluent guidelines or site-specific BAT decision-making--cannot be read to constrain the Agency's discretion over whatit includes in its plan.    Moreover, because section 304(m)(1)(C) requires EPA to complete aneffluent guidelines rulemaking within three years of identifying anindustrial category in a 304(m) Plan, \6\ EPA believes that Congressintended to give EPA the discretion under section 304(m)(1)(B) toprioritize its identification of potential new industrial categories sothat it can use available resources effectively. Otherwise, EPA mightfind itself conducting rushed, resource-intensive effluent guidelinesrulemakings where none is actually needed for the protection of humanhealth and the environment, or where such protection could be moreeffectively achieved through other CWA mechanisms. Considering the fullscope of the mandates and authorities established by the CWA, of whicheffluent guidelines are only a part, EPA needs the discretion topromulgate new effluent guidelines in a phased, orderly manner,consistent with Agency priorities and the funds appropriated byCongress to execute them. By crafting section 304(m) as a planningmechanism, Congress has given EPA that discretion.---------------------------------------------------------------------------    \6\ EPA recognizes that a recent district court held thatsection 304(m)(1)(c) requires EPA to promulgate effluent guidelineswithin three years for new categories identified in the Plan--notsimply to conclude rulemaking in three years. See NRDC et al. v.EPA, 437 F.Supp.2d 1137 (C.D. Ca., 2006). EPA disagrees with thisinterpretation and has appealed this decision. If upheld on appeal,this decision would limit EPA's discretion regarding whether or notto promulgate effluent guidelines for new categories identified inthe Plan. However, it would not affect EPA's discretion under section304(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 UtahWilderness Alliance, et al., 124 S. Ct. 2373, 2383 (2004). By requiringEPA to publish its plan, Congress assured that EPA's priority-settingprocesses would be available for public viewing. By requiring EPA tosolicit comments on preliminary plans, Congress assured that interestedmembers of the public could contribute ideas and express policypreferences. EPA has given careful consideration and summarized itsfindings with respect to all industries suggested by commenters ascandidates for inclusion in the Plan. Finally, by requiring publicationof plans every two years, Congress assured that EPA would regularly re-evaluate its past policy choices and priorities (including whether toidentify an industrial activity for effluent guidelines rulemaking) toaccount for changed circumstances. Ultimately, however, Congress leftthe content of the plan to EPA's discretion--befitting the role thateffluent guidelines play in the overall structure of the CWA and theirrelationship to other tools for addressing water pollution.[[Page 61353]]IX. Request for Comment and InformationA. EPA Requests Information on the Steam Electric Power GeneratingCategory (Part 423)    EPA solicits public comments on the following areas of interest tosupport the Steam Electric Power Generating Detailed Study.    • Integrated gasification combined cycle (IGCC) facilities.EPA solicits comment on the wastewaters that may be generated orotherwise affected by the coal gasification process. What are thesources and characteristics of wastewaters generated by coal gasificationand related processes at IGCC plants? How do these wastewaters compare tothose of traditional coal-fired steam electric processes?    • Treatment technologies for wastewaters from wet FGDsystems. EPA solicits information and data regarding the costs andeffectiveness 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 evaluateefficacy of the treatment technologies, EPA seeks both influent andeffluent data from full scale or pilot applications. Data submittedshould include details on the date samples were collected and analyzed,laboratory analytical methods used, and a description of the wastewatertreatment system and sample collection points.    • Ash pond management. EPA solicits information that wouldhelp identify best management practices for ash ponds. For example, EPAis aware of information suggesting that managing pyritic wastes in ashponds should be avoided because it can contribute to lowering pH of theash pond impoundment, potentially liberating metals in ash sedimentsand elevating the level of metals released to surface waters. Inaddition, introducing certain other wastes such as coal pile runoff cansubstantially affect ash pond pH, similarly producing conditions thatfavor releasing metals present in ash pond sediments and suspendedparticulates. EPA solicits information on best management practices forminimizing the potential for such wastes to adversely impact ash pondoperation and discharges.    • Environmental assessments/impacts. EPA solicitsinformation on environmental assessments that have been conducted fordischarges from steam electric power plants. In particular, EPA seeksinformation linking the environmental assessments to discharges ofmetals (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 chemicalbiocides). EPA also seeks more general information regarding thepotential environmental hazard associated with discharges of thesepollutants 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 followingquestions.    • To what degree are manganese discharges from coal minescausing environmental impairment? How would impacts change if themanganese limits were removed or made less stringent?    • How many companies have defaulted on their bonds becauseof post-mining manganese treatment costs?    • What is the potential for companies to default on theirbonds in the future if the current manganese limit remains unchanged?    • To what extent have states had to assume long-term watertreatment responsibilities for mines where the bonds have beenforfeited? How are states managing these responsibilities?    • What is the prevalence of metals other than manganese, andother contaminants such as sulfates and chloride, in untreated miningwastewater? To what extent are other metals and contaminants removed bycurrent manganese treatment practices? How significant are the impactsfrom other metals and contaminants?    • How successful are trust funds as alternatives to bondsfor long-term manganese control from post-mining sites?    • To what extent are water discharge permits for post-miningoperations based on state water quality standards rather than on EPAeffluent limitations and guidelines?C. EPA Requests Information on the Coalbed Methane Sector of the Oiland Gas Extraction Category (Part 435)    EPA is researching the following questions and topics as theyrelate to the quantity and toxicity of pollutants discharged and theenvironmental impacts of these discharges to support the Oil and GasExtraction/Coal Bed Methane detailed study.    • What pollutants are typically discharged in CBM produced water?    • What is the toxicity of these pollutants to human healthand the environment?    • What is the range of pollutant concentrations and CBMproduced water flow rate?    • What CBM produced water pollutants are typically controlledthrough permit limits and what is the range of these permit limits?    • What are the observed and potential impacts of CBMproduced water discharges on aquatic environments and communities,riparian zones, and other wetlands?    • How does the composition of CBM produced water change whendischarged to normally dry draws or ephemeral streams?    • What is the potential for CBM produced water discharges tomobilize metals, soil nutrients, pesticides and other organiccontaminants to surface waters?    • What CBM produced water pollutants are typically controlledthrough permit limits and what is the range of effluent limits?    • What are measures that can mitigate potential impacts touses of surface waters for irrigation?    EPA is researching the following questions and topics as theyrelate to the potential technology options and beneficial use practicesfor this industrial sector.    • What are the current industry treatment technologies andbeneficial use practices for CBM produced water?    • What are the potential beneficial use applications of CBMproduced water and what are the corresponding criteria for such uses?    • What are the performances of these treatment technologiesand beneficial use practices for reducing the potential impacts of CBMproduced water discharges?    • What is the range of incremental annualized compliancecosts associated with these technologies and practices? How do thesecosts differ between existing and new sources?    • What is the demonstrated use and economic affordability(e.g., production losses, firm failures, employment impacts resultingfrom 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 environmentalimpacts (including energy impacts) associated with the current industrytreatment technologies and beneficial use practices for CBM produced water?    EPA is researching the following questions and topics as theyrelate to the expansion of CBM exploration and development and theaffordability of potential technology options for this industrial sector.[[Page 61354]]    • What is the near-term and long-term growth rate for thisindustry sector? Which CBM basins are likely to experience the mostgrowth within the next ten years?    • What are the current industry drilling and infrastructureexpansion plans for CBM exploration and development?    • What is the predicted range of CBM reserves across thedifferent basins for different natural gas prices?    • What are the potential impacts on developing CBM reservesand operator profitability and rates of return on investment inresponse to any increased costs associated with potential industrytreatment technologies and beneficial use practices for CBM producedwater discharges?    • What is the difference between potential impacts onexisting sources versus new sources?    • What percentage of CBM operators are considered small entities?    EPA is researching the following questions and topics as theyrelate to current regulatory controls.    • How do NPDES permit programs regulate CBM produced waterdischarges (e.g., individual permits, general permits)?    • What is the BPJ basis for existing technology-basedeffluent limits for CBM produced water discharges?    • To what extent and how do current regulatory controlsensure 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 Relatesto Its Health Services Study1. Dental Mercury    • In state and localities that have not established dentalmercury guidance or requirements, what, if anything, do dental officescurrently do to reduce mercury discharges associated with dentalamalgam? Also, what annual costs are associated with these activities?    • EPA assumes that, at a minimum, all dental facilities havechairside traps and/or vacuum pump filters, and that they dispose ofamalgam collected in these traps/filters as solid waste (i.e., notsubsequently rinsed down the drain). EPA solicits comment on thisassumption.    • To what extent are the ADA recommended BMPs currentlyutilized in the dental industry? What is the effectiveness in reducingdental mercury associated with these BMPs and what are the annual costs?    • EPA solicits data on the effectiveness of BMP or amalgamseparators in reducing mercury in POTW influent, effluent, and/orsludge. EPA is particularly interested in obtaining data from studiesthat measured mercury concentrations in POTW influent, effluent, and/orsludge before and after BMP or amalgam separation implementation.    • EPA solicits information on the cost and burden to POTWsof implementing state or local BMP or amalgam separator requirements.EPA is also interested in obtaining information on how POTWs haveimplemented such standards.    • EPA solicits comment on any known interference or passthrough problems associated with dental mercury discharges.    • EPA solicits additional information on the effectivenessof voluntary local programs for reducing mercury discharges from dentalfacilities.2. Unused Pharmaceuticals    • EPA solicits identification of any policies, procedures orguidelines that govern the disposal of unused pharmaceuticals fromhospitals; offices of doctors and mental health practitioners; nursing,long-term care, re-habilitation, and personal care facilities; medicallaboratories and diagnostic service facilities; and veterinary carefacilities.    • EPA solicits information on the most likely sub-sectorswithin the Health Service sector that would accumulate unusedpharmaceuticals for management and disposal.    • When applicable, to what extent are unused pharmaceuticalsdisposed according to the Resource Conservation and Recovery Act (RCRA)?    • EPA solicits comment and data on: (1) The main factorsthat drive current disposal practices; and (2) any barriers preventingthe reduction or elimination of unused pharmaceuticals to POTWs and/orsurface waters. In particular, EPA solicits comment on the extent thatthe Controlled Substances Act (21 U.S.C. 801 et. seq.) complicates thedesign of an efficacious solution to drug disposal?    • EPA solicits quantitative information or tracking sheetsfor the past year on the disposal of unused pharmaceuticals via thetoilet, drain, or sewer.    • EPA solicits data on how control authorities are currentlycontrolling disposal of unused pharmaceuticals via wastewater.    • EPA solicits information on any technologies or BMPs thatare available to control or eliminate the disposal of unusedpharmaceuticals to POTWs.    • EPA solicits qualitative and quantitative data on theeffectiveness and annualized costs of the technologies or BMPs thathealth service facilities use to control or eliminate the discharge ofunused pharmaceuticals from their wastewater. EPA is also interested inobtaining information on the current costs (including labor) associatedwith disposal of unused pharmaceuticals via the drain or toilet.    • EPA solicits any studies or information on the potentialfor unused pharmaceuticals disposed in non-hazardous landfills tocontaminate underground resources of drinking water.E. Preliminary Category Reviews for the 2008 Annual Review    EPA requests information on the industries for which it iscontinuing or initiating preliminary category reviews: Ore Mining andDressing, Centralized Waste Treatment, and Waste Combustors (i.e.,industrial point source categories with existing effluent guidelinesidentified 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 moreinformation for the 2008 annual review. Specifically, EPA hopes togather the following information:    • What toxic pollutants are discharged from these industriesin non-trivial amounts on an industry and per-facility basis?    • What raw material(s) or process(es) are the sources ofthese pollutants?    • What technologies or management practices are available(technically and economically) to control or prevent the generationand/or release of these pollutants.F. Data Sources and Methodologies    EPA solicits comments on whether EPA used the correct evaluationfactors, criteria, and data sources in conducting its annual review anddeveloping this preliminary Plan. EPA also solicits comment on otherdata sources EPA can use in its annual reviews and biennial planningprocess. Please see the docket for a more detailed discussion of EPA'sanalysis 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 shouldprovide EPA Regions and States with permit-based support instead ofrevising effluent guidelines (e.g., when the vast majority of thehazard is associated with one or a few facilities). EPA solicitscomment 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 industrialsectors currently not subject to effluent guidelines or pretreatmentstandards for review and prioritization, and the factors and measuresEPA should consider for determining whether to identify such industriesfor a rulemaking. EPA solicits comment on other data sources andapproaches EPA can use to identify industrial sectors currently notsubject to effluent guidelines or pretreatment standards for review andprioritization.I. Implementation Issues Related to Existing Effluent Guidelines andPretreatment Standards    As a factor in its decision-making, EPA considers opportunities toeliminate inefficiencies or impediments to pollution prevention ortechnological innovation, or opportunities to promote innovativeapproaches such as water quality trading, including within-planttrading. Consequently, EPA solicits comment on implementation issuesrelated to existing effluent guidelines and pretreatment standards.Notice of Availability of Preliminary 2008 Effluent Guidelines ProgramPlanJ. EPA's Evaluation of Categories of Indirect Dischargers WithoutCategorical Pretreatment Standards To Identify Potential New Categoriesfor Pretreatment Standards    EPA solicits comments on its evaluation of categories of indirectdischargers without categorical pretreatment standards. Specifically,EPA solicits wastewater characterization data (e.g., wastewatervolumes, concentrations of discharged pollutants), current examples ofpollution prevention, treatment technologies, and local limits for allindustries without pretreatment standards. EPA also solicits comment onwhether there are industrial sectors discharging pollutants that causeinterference issues that cannot be adequately controlled through thegeneral 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