[Federal Register: December 28, 2009 (Volume 74, Number 247)]
[Notices]
[Page 68599-68615]
[DOCID:fr28de09-68]

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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2008-0517; FRL-9095-5]
RIN 2040-AF06

Notice of Availability of Preliminary 2010 Effluent Guidelines
Program Plan

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: The Clean Water Act (CWA) sections 301(d), 304(b), 304(g),
304(m), and 307(b) require EPA to annually review its effluent
guidelines and

pretreatment standards. This notice presents EPA's 2009 review of
existing effluent guidelines and pretreatment standards. This notice
also presents EPA's evaluation of indirect dischargers without
categorical pretreatment standards to identify potential new categories
for pretreatment standards under CWA sections 304(g) and 307(b).
Finally, this notice presents the Preliminary 2010 Effluent Guidelines
Program Plan (``preliminary 2010 Plan''), which, as required under CWA
section 304(m), identifies any new or existing industrial categories
selected for effluent guidelines rulemaking and provides a schedule for
such rulemaking. EPA is soliciting comment on its preliminary 2010 Plan
and on its 2009 annual review of existing effluent guidelines and
pretreatment standards and industrial categories not currently
regulated by effluent guidelines and pretreatment standards.

DATES: If you wish to comment on any portion of this notice, EPA must
receive your comments by February 26, 2010.

ADDRESSES: Submit your comments, data and information for the 2009
annual review of existing effluent guidelines and pretreatment
standards and the preliminary 2010 Plan, identified by Docket ID No.
EPA-HQ-OW-2008-0517, by one of the following methods:
    (1) http://www.regulations.gov. Follow the online instructions for
submitting comments.
    (2) E-mail<EMAIL_ADDRESS>Attention Docket ID No. EPA-HQ-OW-
2008-0517.
    (3) Mail: Water Docket, Environmental Protection Agency, Mailcode:
2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention
Docket ID No. EPA-HQ-OW-2008-0517. Please include a total of 3 copies.
    (4) Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID
No. EPA-HQ-OW-2008-0517. Such deliveries are only accepted during the
Docket's normal hours of operation and special arrangements should be
made.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2008-
0517. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through regulations.gov or e-
mail. The Federal regulations.gov Web site is an ``anonymous access''
system, which means EPA will not know your identity or contact
information unless you provide it in the body of your comment. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If you send an e-mail comment directly to
EPA without going through regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If EPA
cannot read your comment due to technical difficulties and cannot
contact you for clarification, EPA may not be able to consider your
comment. Electronic files should avoid the use of special characters,
any form of encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the index at
http://www.regulations.gov. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically at http://
www.regulations.gov or in hard copy at the Water Docket in the EPA
Docket Center, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is<PHONE_NUMBER>, and the
telephone number for the Water Docket is<PHONE_NUMBER>.
    The following key document provides additional information about
EPA's annual reviews and the Preliminary 2010 Effluent Guidelines
Program Plan:
     Technical Support Document for the Preliminary 2010
Effluent Guidelines Program Plan, EPA-821-R-09-006, DCN 06703, October
2009.
     Technical Support Document for the Annual Review of
Existing Effluent Guidelines and Identification of Potential New Point
Source Categories, EPA-821-R-09-007, DCN 06557, October 2009.
     Steam Electric Power Generating Point Source Category:
Final Detailed Study Report, EPA-821-R-09-008, DCN 06390, October 2009.

FOR FURTHER INFORMATION CONTACT: Mr. Carey A. Johnston at (202) 566-
1014 or<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

How is This Document Organized?

    The outline of this notice follows.

I. General Information
II. Legal Authority
III. What Is the Purpose of This Federal Register Notice?
IV. Background
V. EPA's 2009 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
304(m), and 307(b)
VI. EPA's 2010 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
304(m), and 307(b)
VII. EPA's Evaluation of Categories of Indirect Dischargers without
Categorical Pretreatment Standards To Identify Potential New
Categories for Pretreatment Standards
VIII. The Preliminary 2010 Effluent Guidelines Program Plan Under
Section 304(m)
IX. Request for Comment and Information

I. General Information

A. Does This Action Apply to Me?

    This notice provides a statement of the Agency's effluent
guidelines review and planning processes and priorities at this time,
and does not contain any regulatory requirements.

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

1. Submitting Confidential Business Information
    Do not submit this information to EPA through http://
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information marked as CBI will not be disclosed except in accordance
with procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments
    When submitting comments, remember to:
     Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).

     Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
     Describe any assumptions and provide any technical
information and/or data that you used.
     If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
     Provide specific examples to illustrate your concerns, and
suggest alternatives.
     Explain your views as clearly as possible.
     Make sure to submit your comments by the comment period
deadline identified.

II. Legal Authority

    This notice is published under the authority of the CWA, 33 U.S.C.
1251, et seq., and in particular sections 301(d), 304(b), 304(g),
304(m), 306, and 307(b), 33 U.S.C. 1311(d), 1314(b), 1314(g), 1314(m),
1316, and 1317.

III. What Is the Purpose of This Federal Register Notice?

    This notice presents EPA's 2009 review of existing effluent
guidelines and pretreatment standards under CWA sections 301(d),
304(b), 304(g), 304(m), and 307(b). This notice also provides EPA's
preliminary thoughts concerning its 2010 annual reviews under CWA
sections 301(d), 304(b), 304(g) and 307(b) and solicits comments, data
and information to assist EPA in performing these reviews. It also
presents EPA's evaluation of indirect dischargers without categorical
pretreatment standards to identify potential new categories for
pretreatment standards under CWA sections 304(g) and 307(b). This
notice also presents the preliminary 2010 Effluent Guidelines Program
Plan (``preliminary 2010 Plan''), which, as required under CWA section
304(m), identifies any new or existing industrial categories selected
for effluent guidelines rulemaking and provides a schedule for such
rulemaking. CWA section 304(m) requires EPA to biennially publish such
a plan after public notice and comment.

IV. Background

A. What Are Effluent Guidelines and Pretreatment Standards?

    The CWA directs EPA to promulgate effluent limitations guidelines
and standards (``effluent guidelines'') that reflect pollutant
reductions that can be achieved by categories or subcategories of
industrial point sources using technologies that represent the
appropriate level of control. See CWA sections 301(b)(2), 304(b), 306,
307(b), and 307(c). For point sources that introduce pollutants
directly into the waters of the United States (direct dischargers), the
effluent limitations guidelines and standards promulgated by EPA are
implemented through National Pollutant Discharge Elimination System
(NPDES) permits. See CWA sections 301(a), 301(b), and 402. For sources
that discharge to POTWs (indirect dischargers), EPA promulgates
pretreatment standards that apply directly to those sources and are
enforced by POTWs and State and Federal authorities. See CWA sections
307(b) and (c).
1. Best Practicable Control Technology Currently Available (BPT)--CWA
Sections 301(b)(1)(A) & 304(b)(1)
    EPA defines Best Practicable Control Technology Currently Available
(BPT) effluent limitations for conventional, toxic, and non-
conventional pollutants. Section 304(a)(4) designates the following as
conventional pollutants: biochemical oxygen demand (BOD5),
total suspended solids, fecal coliform, pH, and any additional
pollutants defined by the Administrator as conventional. The
Administrator designated oil and grease as an additional conventional
pollutant on July 30, 1979 (44 FR 44501). EPA has identified 65
pollutants and classes of pollutants as toxic pollutants, of which 126
specific substances have been designated priority toxic pollutants. See
Appendix A to part 423. All other pollutants are considered to be non-
conventional.
    In specifying BPT, EPA looks at a number of factors. EPA first
considers the total cost of applying the control technology in relation
to the effluent reduction benefits. The Agency also considers the age
of the equipment and facilities, the processes employed, and any
required process changes, engineering aspects of the control
technologies, non-water quality environmental impacts (including energy
requirements), and such other factors as the EPA Administrator deems
appropriate. See CWA section 304(b)(1)(B). Traditionally, EPA
establishes BPT effluent limitations based on the average of the best
performances of facilities within the industry of various ages, sizes,
processes, or other common characteristics. Where existing performance
is uniformly inadequate, BPT may reflect higher levels of control than
currently in place in an industrial category if the Agency determines
that the technology can be practically applied.
2. Best Conventional Pollutant Control Technology (BCT)--CWA Sections
301(b)(2)(E) & 304(b)(4)
    The 1977 amendments to the CWA required EPA to identify effluent
reduction levels for conventional pollutants associated with Best
Conventional Pollutant Control Technology (BCT) for discharges from
existing industrial point sources. In addition to considering the other
factors specified in section 304(b)(4)(B) to establish BCT limitations,
EPA also considers a two part ``cost-reasonableness'' test. EPA
explained its methodology for the development of BCT limitations in
1986. See 51 FR 24974 (July 9, 1986).
3. Best Available Technology Economically Achievable (BAT)--CWA
Sections 301(b)(2)(A) & 304(b)(2)(B)
    For toxic pollutants and non-conventional pollutants, EPA
promulgates effluent guidelines based on the Best Available Technology
Economically Achievable (BAT). See CWA section 301(b)(2)(A), (C), (D)
and (F). The factors considered in assessing BAT include the cost of
achieving BAT effluent reductions, the age of equipment and facilities
involved, the process employed, potential process changes, non-water
quality environmental impacts, including energy requirements, and other
such factors as the EPA Administrator deems appropriate. See CWA
section 304(b)(2)(B). The technology must also be economically
achievable. See CWA section 301(b)(2)(A). The Agency retains
considerable discretion in assigning the weight accorded to these
factors. BAT limitations may be based on effluent reductions attainable
through changes in a facility's processes and operations. Where
existing performance is uniformly inadequate, BAT may reflect a higher
level of performance than is currently being achieved within a
particular subcategory based on technology transferred from a different
subcategory or category. BAT may be based upon process changes or
internal controls, even when these technologies are not common industry
practice.
4. New Source Performance Standards (NSPS)--CWA Section 306
    New Source Performance Standards (NSPS) reflect effluent reductions
that are achievable based on the best available demonstrated control

technology. New sources have the opportunity to install the best and
most efficient production processes and wastewater treatment
technologies. As a result, NSPS should represent the most stringent
controls attainable through the application of the best available
demonstrated control technology for all pollutants (i.e., conventional,
non-conventional, and priority pollutants). In establishing NSPS, EPA
is directed to take into consideration the cost of achieving the
effluent reduction and any non-water quality environmental impacts and
energy requirements.
5. Pretreatment Standards for Existing Sources (PSES)--CWA Section
307(b)
    Pretreatment Standards for Existing Sources (PSES) are designed to
prevent the discharge of pollutants that pass through, interfere with,
or are otherwise incompatible with the operation of publicly-owned
treatment works (POTWs), including sludge disposal methods at POTWs.
Pretreatment standards for existing sources are technology-based and
are analogous to BAT effluent limitations guidelines.
    The General Pretreatment Regulations, which set forth the framework
for the implementation of national pretreatment standards, are found at
40 CFR part 403.
6. Pretreatment Standards for New Sources (PSNS)--CWA Section 307(c)
    Like PSES, Pretreatment Standards for New Sources (PSNS) are
designed to prevent the discharges of pollutants that pass through,
interfere with, or are otherwise incompatible with the operation of
POTWs. PSNS are to be issued at the same time as NSPS. New indirect
dischargers have the opportunity to incorporate into their facilities
the best available demonstrated technologies. The Agency considers the
same factors in promulgating PSNS as it considers in promulgating NSPS.

B. What Is EPA's Review and Planning Obligations Under Sections 301(d),
304(b), 304(g), 304(m), and 307(b)?

1. EPA's Review and Planning Obligations Under Sections 301(d), 304(b),
and 304(m)--Direct Dischargers
    Section 304(b) and 304(m) require EPA to review existing effluent
guidelines for direct dischargers each year and to revise such
regulations ``if appropriate.'' Section 304(m) supplements the core
requirement of section 304(b) by requiring EPA to publish a plan every
two years announcing its schedule for performing this annual review and
its schedule for rulemaking for any effluent guidelines selected for
possible revision as a result of that annual review. Section 304(m)
also requires the plan to identify categories of sources discharging
toxic or non-conventional pollutants for which EPA has not published
effluent limitations guidelines under section 304(b)(2) or NSPS under
section 306. See CWA section 304(m)(1)(B); S. Rep. No. 50, 99th Cong.,
1st Sess. (1985); WQA87 Leg. Hist. 31 (indicating that section
304(m)(1)(B) applies to ``non-trivial discharges.''). Finally, under
section 304(m), the plan must present a schedule for promulgating
effluent guidelines for industrial categories for which it has not
already established such guidelines, providing for final action on such
rulemaking not later than three years after the industrial category is
identified in a final Plan. See CWA section 304(m)(1)(C). EPA also has
a duty to promulgate effluent guidelines within three years for new
categories identified in the Plan. See NRDC et al. v. EPA, 437
F.Supp.2d 1137 (C.D. Ca, 2006). EPA is required to publish its
preliminary Plan for public comment prior to taking final action on the
plan. See CWA section 304(m)(2).
    In addition, CWA section 301(d) requires EPA to review every five
years the effluent limitations required by CWA section 301(b)(2) and to
revise them if appropriate pursuant to the procedures specified in that
section. Section 301(b)(2), in turn, requires point sources to achieve
effluent limitations reflecting the application of the best practicable
control technology (all pollutants), best available technology
economically achievable (for toxic pollutants and non-conventional
pollutants) and the best conventional pollutant control technology (for
conventional pollutants), as determined by EPA under sections
304(b)(1), 304(b)(2) and 304(b)(4), respectively. For over three
decades, EPA has implemented sections 301 and 304 through the
promulgation of effluent limitations guidelines, resulting in
regulations for 57 industrial categories. See E.I. du Pont de Nemours &
Co. v. Train, 430 U.S. 113 (1977). Consequently, as part of its annual
review of effluent limitations guidelines under sections 304(b) and
304(m), EPA is also reviewing the effluent limitations they contain,
thereby fulfilling its obligations under sections 301(d) and 304(b)
simultaneously.
2. EPA's Review and Planning Obligations Under Sections 304(g) and
307(b)--Indirect Dischargers
    Section 307(b) requires EPA to revise its pretreatment standards
for indirect dischargers ``from time to time, as control technology,
processes, operating methods, or other alternatives change.'' See CWA
section 307(b)(2). Section 304(g) requires EPA to annually review these
pretreatment standards and revise them ``if appropriate.'' Although
section 307(b) only requires EPA to revise existing pretreatment
standards ``from time to time,'' section 304(g) requires an annual
review. Therefore, EPA meets its 304(g) and 307(b) requirements by
reviewing all industrial categories subject to existing categorical
pretreatment standards on an annual basis to identify potential
candidates for revision.
    Section 307(b)(1) also requires EPA to promulgate pretreatment
standards for pollutants not susceptible to treatment by POTWs or that
would interfere with the operation of POTWs, although it does not
provide a timing requirement for the promulgation of such new
pretreatment standards. EPA, in its discretion, periodically evaluates
indirect dischargers not subject to categorical pretreatment standards
to identify potential candidates for new pretreatment standards. The
CWA does not require EPA to publish its review of pretreatment
standards or identification of potential new categories, although EPA
is exercising its discretion to do so in this notice.
    EPA intends to repeat this publication schedule for future
pretreatment standards reviews (e.g., EPA will publish the 2010 annual
pretreatment standards review in the notice containing the Agency's
2010 annual review of existing effluent guidelines and the final 2010
Plan). EPA intends that these contemporaneous reviews will provide
meaningful insight into EPA's effluent guidelines and pretreatment
standards program decision-making. Additionally, by providing a single
notice for these and future reviews, EPA hopes to provide a
consolidated source of information for the Agency's current and future
effluent guidelines and pretreatment standards program reviews.

V. EPA's 2009 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
304(m), and 307(b)

A. What Process Did EPA Use To Review Existing Effluent Guidelines and
Pretreatment Standards under CWA Section 301(d), 304(b), 304(g),
304(m), and 307(b)?

1. Overview
    In its 2009 annual review, EPA reviewed all industrial categories

subject to existing effluent limitations guidelines and pretreatment
standards, representing a total of 57 point source categories and over
450 subcategories. This review consisted of a screening level review of
all existing industrial categories based on the hazard associated with
discharges from each category and other factors identified by EPA as
appropriate for prioritizing effluent guidelines and pretreatment
standards for possible revision. EPA used this review to confirm the
identification of the three industrial categories prioritized for
further review in the final 2008 Effluent Guidelines Program Plan
(September 15, 2008; 73 FR 53218) and to list the industrial categories
currently regulated by existing effluent guidelines that cumulatively
comprise 95% of the reported hazard (reported in units of toxic-
weighted pound equivalent or TWPE). Specifically, EPA continued work on
three detailed studies as part of the 2009 annual review: Steam
Electric Power Generating (Part 423), Oil and Gas Extraction (Part 435)
(only to assess whether to include coalbed methane extraction as a new
subcategory), and Hospitals (Part 460).\1\
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    \1\ Based on available information, hospitals consist mostly of
indirect dischargers for which EPA has not established pretreatment
standards. As discussed in Section VII.B, EPA is including hospitals
in its review of the Health Care 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.
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    Together, these reviews discharged EPA's obligations to annually
review both existing effluent limitations guidelines for direct
dischargers under CWA sections 301(d), 304(b), 304(m) and existing
pretreatment standards for indirect dischargers under CWA sections
304(g) and 307(b).
    Based on this review and prior annual reviews, and in light of the
ongoing effluent guidelines rulemakings and detailed studies currently
in progress, EPA has decided to pursue an effluent guidelines
rulemaking for the Steam Electric Power Generating (Part 423) category.
2. How Did EPA's 2008 Annual Review Influence its 2009 Annual Review of
Point Source Categories With Existing Effluent Guidelines and
Pretreatment Standards?
    In view of the annual nature of its reviews of existing effluent
guidelines and pretreatment standards, EPA believes that each annual
review can and should influence succeeding annual reviews, e.g., by
indicating data gaps, identifying new pollutants or pollution reduction
technologies, or otherwise highlighting industrial categories for
additional scrutiny in subsequent years. For example, in the current
annual review EPA continued its detailed studies of the following three
categories: Steam Electric Power Generating (Part 423); Oil and Gas
Extraction (Part 435) (only to assess whether to include coalbed
methane extraction as a new subcategory); and Hospitals (Part 460)
(which is part of the Health Care Industry detailed study). In
addition, EPA is expending additional resources to conduct its
preliminary category review of the Ore Mining and Dressing (Part 440)
category in its 2009 annual review based on the toxic discharges
reported to the Toxics Release Inventory (TRI), Permit Compliance
System (PCS), and the Integrated Compliance Information System National
Pollutant Discharge Elimination System (ICIS-NPDES).
    EPA conducts a preliminary category review when it lacks sufficient
data to determine whether revision would be appropriate and for which
EPA is performing a further assessment of pollutant discharges before
starting a detailed study. This assessment provides an additional level
of quality assurance on the reported pollutant discharges and number of
facilities that represent the majority of toxic-weighted pollutant
discharges. EPA published the findings from its 2008 annual review with
its final 2008 Plan, making the data collected available for public
comment. Docket No. EPA-HQ-OW-2006-0771. EPA used the findings, data
and comments on the 2008 annual review to inform its 2009 annual
review. The 2009 review also built on the previous reviews by
continuing to use the screening methodology, incorporating some
refinements to assigning discharges to categories and updating toxic
weighting factors used to estimate potential hazards of toxic pollutant
discharges.
3. What Actions Did EPA Take in Performing Its 2009 Annual Reviews of
Existing Effluent Guidelines and Pretreatment Standards?
a. Screening-level Review
    The first component of EPA's 2009 annual review consisted of a
screening-level review of all industrial categories subject to existing
effluent guidelines or pretreatment standards. As a starting point EPA
collected and analyzed data to identify industrial categories whose
pollutant discharges potentially pose the greatest hazard to human
health or the environment because of their toxicity (i.e., highest
estimates of toxic-weighted pollutant discharges). EPA ranked point
source categories according to their discharges of toxic and non-
conventional pollutants (reported in units of toxic-weighted pound
equivalent or TWPE), based primarily on data from TRI, PCS, and ICIS-
NPDES. EPA calculated the TWPE using pollutant-specific toxic weighting
factors (TWFs). Where data are available, these TWFs reflect both
aquatic life and human health effects. For each facility that reports
to TRI or PCS, EPA multiplies the pounds of discharged pollutants by
pollutant-specific TWFs. This calculation results in an estimate of the
discharged toxic-weighted pound equivalents, which EPA then uses as its
estimate of the hazard posed by these pollutant discharges. EPA used
the most recent 2007 data from the TRI, PCS, and ICIS-NPDES databases.
The full description of EPA's methodology for the 2009 screening-level
review is presented in the Technical Support Document (TSD) for the
preliminary 2010 Plan (see DCN 06703) and the Technical Support
Document for the Annual Review of Existing Effluent Guidelines and
Identification of Potential New Point Source Categories (see DCN
06557).
    EPA also developed a quality assurance project plan (QAPP) for its
use of TRI, PCS, and ICIS-NPDES data in the 2009 annual review to
document the type and quality of data needed to make the decisions in
this annual review and to describe the methods for collecting and
assessing those data (see DCN 06558). EPA used the following document
to develop the QAPP for this annual review: ``EPA Requirements for QA
Project Plans (QA/R-5), EPA-240-B01-003.'' Using the QAPP as a guide,
EPA performed extensive quality assurance checks on the data used to
develop estimates of toxic-weighted pollutant discharges (i.e.,
verifying 2007 discharge data reported to TRI, PCS, and ICIS-NPDES) to
determine if any of the pollutant discharge estimates relied on
incorrect or suspect data. For example, EPA contacted facilities and
permit writers to confirm and, as necessary, correct TRI, PCS, and
ICIS-NPDES data for facilities that EPA had identified in its
screening-level review as the significant dischargers of nutrients and
of toxic and non-conventional pollution.
    Based on this methodology, EPA prioritized for potential revision
industrial categories that offered the greatest potential for reducing
hazard to human health and the environment. EPA assigned those
categories with the lowest estimates of toxic-weighted pollutant
discharges a lower priority for revision (i.e., industrial categories

marked ``(3)'' in the ``Findings'' column in Table V-1 in section V.B.4
of this notice).
    In order to further focus its inquiry during the 2009 annual
review, EPA assigned a lower priority for potential revision to
categories for which effluent guidelines had been recently promulgated
or revised, or for which effluent guidelines rulemaking was currently
underway (i.e., industrial categories marked ``(1)'' in the
``Findings'' column in Table V-1 in section V.B.4 of this notice). For
example, EPA excluded facilities that are associated with the Chlorine
and Chlorinated Hydrocarbon (CCH) Manufacturing effluent guidelines
rulemaking from its 2009 hazard assessment of the Organic Chemicals,
Plastics, and Synthetic Fibers (OCPSF) and Inorganic Chemicals point
source categories because the CCH rulemaking is underway.
    Additionally, EPA applied less scrutiny to industrial categories
for which EPA had promulgated effluent guidelines or pretreatment
standards within the past seven years. EPA chose seven years because
this is the time it customarily takes for the effects of effluent
guidelines or pretreatment standards to be fully reflected in pollutant
loading data and TRI reports (in large part because effluent
limitations guidelines are often incorporated into NPDES permits only
upon re-issuance, which could be up to five years after the effluent
guidelines or pretreatment standards are promulgated). Because there
are 57 point source categories (including over 450 subcategories) with
existing effluent guidelines and pretreatment standards that must be
reviewed annually, EPA believes it is important to prioritize its
review so as to focus on industries where changes to the existing
effluent guidelines or pretreatment standards are most likely to be
needed. In general, industries for which effluent guidelines or
pretreatment standards have recently been promulgated are less likely
to warrant such changes. However, in cases where EPA becomes aware of
the growth of a new industrial activity within a category for which EPA
has recently revised effluent guidelines or pretreatment standards, or
where new concerns are identified for previously unevaluated pollutants
discharged by facilities within the industrial category, EPA would
apply more scrutiny. EPA identified no such instance during the 2009
annual review.
    EPA also applied a lower priority to categories without sufficient
data to determine whether revision would be appropriate. For any
industrial categories marked ``(5)'' in the ``Findings'' column in
Table V-1 in section V.B.4 of this notice, EPA lacks sufficient
information at this time on the magnitude of the toxic-weighted
pollutant discharges. EPA will seek additional information on the
discharges from these categories in the next annual review in order to
determine whether a detailed study is warranted. EPA typically performs
a further assessment of the pollutant discharges before starting a
detailed study of an industrial category. This assessment
(``preliminary category review'') provides an additional level of
quality assurance on the reported pollutant discharges and number of
facilities that represent the majority of toxic-weighted pollutant
discharges. See the appropriate section in the TSD for the preliminary
2010 Plan (see DCN 06703) for EPA's data needs for these industrial
categories.
    For industrial categories marked ``(4)'' in the ``Findings'' column
in Table V-1 in section V.B.4 of this notice, EPA had sufficient
information on the toxic-weighted pollutant discharges to continue or
complete a detailed study of these industrial categories. EPA intends
to use the detailed study to obtain information on hazard, availability
and cost of technology options, and other factors in order to determine
if it would be appropriate to identify the category for possible
effluent guidelines revision. In the 2009 annual review, EPA continued
or completed detailed studies of three such categories.
    As part of its 2009 annual review, EPA also considered the number
of facilities responsible for the majority of the estimated toxic-
weighted pollutant discharges associated with an industrial activity.
Where only a few facilities in a category accounted for the vast
majority of toxic-weighted pollutant discharges (i.e., categories
marked ``(2)'' in the ``Findings'' column in Table V-1 in section V.B.4
of this notice), EPA applied a lower priority for potential revision.
EPA believes that revision of individual permits for such facilities
may be more effective than a revised national rulemaking. Individual
permit requirements can be better tailored to these few facilities and
may take considerably less time and resources to establish than
revising the national effluent guidelines. The Docket accompanying this
notice lists facilities that account for the vast majority of the
estimated toxic-weighted pollutant discharges for particular categories
(see DCN 06703). For these facilities, EPA will consider identifying
pollutant control and pollution prevention technologies that will
assist permit writers in developing facility-specific, technology-based
effluent limitations on a best professional judgment (BPJ) basis. In
future annual reviews, EPA also intends to re-evaluate each category
based on the information available at the time in order to evaluate the
effectiveness of the BPJ permit-based support.
    EPA received comments in previous biennial planning cycles urging
the Agency to encourage and recognize voluntary efforts by industry to
reduce pollutant discharges, especially when the voluntary efforts have
been widely adopted within an industry and the associated pollutant
reductions have been significant. EPA agrees that industrial categories
demonstrating significant progress through voluntary efforts to reduce
hazard to human health or the environment associated with their
effluent discharges would be a comparatively lower priority for
effluent guidelines or pretreatment standards revision, particularly
where such reductions are achieved by a significant majority of
individual facilities in the industry. Although during this annual
review EPA could not complete a systematic review of voluntary
pollutant loading reductions, EPA's review did indirectly account for
the effects of successful voluntary programs because any significant
reductions in pollutant discharges should be reflected in discharge
monitoring and TRI data, as well as any data provided directly by
commenters, that EPA used to assess the toxic-weighted pollutant
discharges.
    As was the case in previous annual reviews, EPA was unable to
gather the data needed to perform a comprehensive screening-level
analysis of the availability of treatment or process technologies to
reduce toxic pollutant wastewater discharges beyond the performance of
technologies already in place for all of the 57 existing industrial
categories. However, EPA believes that its analysis of hazard is useful
for assessing the effectiveness of existing technologies because it
focuses on the amount and significance of pollutants that are still
discharged following existing treatment. Therefore, by assessing the
hazard associated with discharges from all existing categories in its
screening-level review, EPA was indirectly able to assess the
possibility that further significant reductions could be achieved
through new pollution control technologies for these categories. In
addition, EPA directly assessed the availability of technologies for
certain industries that were prioritized for a more in-depth review as
a result of the screening level analysis.

    Similarly, EPA could not identify a suitable screening-level tool
for comprehensively evaluating the affordability of treatment or
process technologies because the universe of facilities is too broad
and complex. EPA could not find a reasonable way to prioritize the
industrial categories based on readily available economic data. In the
past, EPA has gathered information regarding technologies and economic
achievability through detailed questionnaires distributed to hundreds
of facilities within a category or subcategory for which EPA has
commenced rulemaking. Such information-gathering is subject to the
requirements of the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, et
seq. The information acquired in this way is valuable to EPA in its
rulemaking efforts, but the process of gathering, validating and
analyzing the data can consume considerable time and resources. EPA
does not think it appropriate to conduct this level of analysis for all
point source categories in conducting an annual review. Rather, EPA
believes it is appropriate to set priorities based on hazard and other
screening-level factors identified above, and to directly consider the
availability and affordability of technology only in conducting the
more in-depth reviews of prioritized categories. For these prioritized
categories, EPA may conduct surveys or other PRA-governed data
collection activities in order to better inform the decision on whether
effluent guidelines are warranted. Additionally, EPA is evaluating
tools for directly assessing technological and economic achievability
as part of the screening-level review in future annual reviews under
section 301(d), 304(b), 304(m), and 307(b) (see DCN 07073). EPA
solicits comment on how to best identify and use screening-level tools
for assessing technological and economic achievability on an industry-
specific basis as part of future annual reviews.
    In summary, through its screening level review, EPA focused on
those point source categories that appeared to offer the greatest
potential for reducing hazard to human health or the environment, while
assigning a lower priority to categories that the Agency believes are
not good candidates for effluent guidelines or pretreatment standards
revision at this time. This enabled EPA to concentrate its resources on
conducting more in-depth reviews of certain industries prioritized as a
result of the screening level analysis, as discussed below (see section
V.A.3.b and c).
b. Further Review of Prioritized Categories
    In the publication of the final 2008 Plan EPA identified one
category, Ore Mining and Dressing (Part 440), for further investigation
(``preliminary category review''), and a status report is included in
this notice. EPA identified this category with ``(5)'' in the column
entitled ``Findings'' in Table V-1, Page 53231 of the final 2008 Plan.
EPA is not identifying any other categories for preliminary category
reviews at this time.
    In conducting a preliminary category review, EPA uses the same
types of data sources used for the detailed studies but in less depth.
For example, an assessment of the pollutant discharges provides an
additional level of quality assurance on the reported pollutant
discharges and number of facilities that represent the majority of
toxic-weighted pollutant discharges. EPA may also develop a preliminary
list of potential wastewater pollutant control technologies before
conducting a detailed study. EPA is not conducting a detailed study for
the Ore Mining and Dressing category at this time because EPA needs
additional information regarding this industry to determine whether a
detailed study is warranted. EPA plans to complete its analysis of this
additional information for the final 2010 Plan.
c. Detailed Study of Three Categories
    In this review cycle, EPA continued detailed studies of three
categories: Steam Electric Power Generating (Part 423), Oil and Gas
Extraction (Part 435) (only to assess whether to include coalbed
methane extraction as a new subcategory), and Hospitals (Part 460)
(which is part of the Health Care Industry detailed study). For these
industries, EPA gathered and analyzed additional data on pollutant
discharges, economic factors, and technology issues. In general, EPA
examines one or more of the following elements as part of a detailed
study: (1) Wastewater characteristics and pollutant sources; (2) the
pollutants discharged from these sources and the toxic weights
associated with these discharges; (3) treatment technology and
pollution prevention information; (4) the geographic distribution of
facilities in the industry; (5) any pollutant discharge trends within
the industry; and (6) any relevant economic factors.
    EPA is relying on many different sources of data including: (1) The
2002 U.S. Economic Census; (2) TRI, PCS, and ICIS-NPDES data; (3)
contacts with reporting facilities to verify reported releases and
facility categorization; (4) contacts with regulatory authorities
(States and EPA regions) to understand how category facilities are
permitted; (5) NPDES permits and their supporting fact sheets; (6)
monitoring data included in facility applications for NPDES permit
renewals (Form 2C data); (7) EPA effluent guidelines technical
development documents; (8) relevant EPA preliminary data summaries or
study reports; (9) technical literature on pollutant sources and
control technologies; (10) information provided by industry including
industry conducted survey and sampling data; and/or (11) stakeholder
comments (see DCN 06703). Additionally, in order to evaluate available
and affordable treatment technology options for the coalbed methane
extraction industry sector, EPA is conducting an industry survey.
d. Public Comments
    EPA's annual review process considers information provided by
stakeholders regarding the need for new or revised effluent limitations
guidelines and pretreatment standards. To that end, EPA established a
docket for its 2009 annual review at the time of publication of the
final 2008 Plan to provide the public with an opportunity to submit
additional information to assist the Agency in its 2009 annual review.
EPA received four public comments and placed these comments in the
supporting docket (see EPA-HQ-OW-2008-0517-0045 through 0048, http://
www.regulations.gov). One commenter requested that EPA expand its
detailed study of coalbed methane extraction to include all oil and gas
exploration, stimulation, and extraction techniques that result in
contamination of surface and groundwater, including hydraulic
fracturing in all formations. The other three commenters requested that
EPA initiate an effluent guidelines rulemaking for the Steam Electric
Power Generating category. In particular, they requested that EPA limit
the discharges of metals from this category and eliminate the use of
wet handling for coal combustion wastes.

B. What Were EPA's Findings From Its 2009 Annual Review for Categories
Subject to Existing Effluent Guidelines and Pretreatment Standards?

1. Screening-level Review
    In its 2009 screening level review, EPA considered hazard--and the
other factors described in section A.3.a. above--in prioritizing
effluent guidelines for potential revision. See Table V-1 in section
V.B.4 of this notice

for a summary of EPA's findings with respect to each existing category;
see also the TSD for the preliminary 2010 Plan. Out of the categories
subject only to the screening level review in 2009, EPA is not
identifying any for effluent guidelines rulemaking at this time, based
on the factors described in section A.3.a above and in light of the
effluent guidelines rulemakings and detailed studies in progress.
    EPA carefully examined the industrial categories currently
regulated by existing effluent guidelines that cumulatively comprise
95% of the reported hazard (reported in units of toxic-weighted pound
equivalent or TWPE). The TSD for the preliminary 2010 Plan presents a
summary of EPA's review of these seven industrial categories (see DCN
06703).
2. Detailed Studies
a. Overview
    In its 2009 annual review, EPA continued detailed studies of three
industrial point source categories: Steam Electric Power Generating
(Part 423), and Oil and Gas Extraction (Part 435) (only to assess
whether to include coalbed methane extraction as a new subcategory),
and Hospitals (Part 460) (which is part of the Health Care Industry
detailed study). EPA is investigating whether the pollutant discharges
reported to TRI, PCS, and ICIS-NPDES for 2007 accurately reflect the
current discharges. EPA is also analyzing the reported pollutant
discharges, technology innovation, and process changes in these
industrial categories. Additionally, EPA is considering whether there
are industrial activities not currently subject to effluent guidelines
or pretreatment standards that should be included with these existing
categories, either as part of existing subcategories or as potential
new subcategories. For Coalbed Methane Extraction and Health Care
Industry EPA plans to use the detailed studies to determine whether EPA
should identify in the final 2010 Plan (or a future Plan) either of
these two industrial categories for possible revision of their existing
effluent guidelines and pretreatment standards. EPA's reviews of two of
three categories are described below and its review of hospitals is
described in section VII.B (Health Care Industry detailed study).
b. Steam Electric Power Generating (Part 423)
    EPA has completed a multi-year study of the Steam Electric Power
Generating industry and, based on the results, has determined that
revising the current effluent guidelines is warranted. EPA's decision
to revise the current effluent guidelines is largely driven by the high
level of toxic-weighted pollutant discharges from power plants and the
expectation that these discharges will increase significantly in the
next few years as new air pollution controls are installed. Over the
course of the study EPA has identified technologies that are available
to significantly reduce these pollutant discharges.
    The Steam Electric Power Generating effluent guidelines (40 CFR
423) apply to a subset of the electric power industry, namely those
facilities ``primarily engaged in the generation of electricity for
distribution and sale which results primarily from a process utilizing
fossil-type fuel (coal, oil, or gas) or nuclear fuel in conjunction
with water system as the thermodynamic medium.'' See 40 CFR 423.10.
EPA's most recent revisions to the effluent guidelines and standards
for this category were promulgated in 1982 (see 47 FR 52290; November
19, 1982).
    Since 2005, EPA has been carrying out an intensive review of
wastewater discharges from power plants. As part of this effort, EPA
has sampled wastewater from surface impoundments and advanced
wastewater treatment systems, conducted on-site reviews of the
operations at more than two dozen power plants, and issued a detailed
questionnaire that obtained information on thirty power plants using
authority granted under section 308 of the Clean Water Act. EPA's data
collection primarily focused on four target areas: (1) Determining the
pollutant characteristics of power plant wastewater; (2) identifying
treatment technologies for the wastewater generated by air pollution
control equipment; (3) characterizing the practices used by the
industry to manage or eliminate discharges of fly ash and bottom ash
wastewater; and (4) identifying methods for managing power plant
wastewater that allow recycling and reuse, rather than discharge to
surface waters. Much of the information collected thus far, including
laboratory data from sampling, were made available to the public in an
interim study report, ``Steam Electric Power Generating Point Source
Category: 2007/2008 Detailed Study Report,'' (see EPA-HQ-OW-2006-0771-
1699) and the final study report, ``Steam Electric Power Generating
Point Source Category: Final Detailed Study Report,'' (see DCN 03690).
    EPA's review of the wastewater characteristics indicates that most
of the toxic pollutant loadings for this category are associated with
metals and certain other elements present in wastewater discharges, and
that the waste streams contributing the majority of these pollutants
are associated with ash handling and wet flue gas desulfurization (FGD)
systems. Other potential sources of these pollutants include coal pile
runoff, metal cleaning wastes, coal washing, leachate from landfills
and wastewater impoundments, and certain low-volume wastes.
    Between July 2007 and October 2008, EPA conducted six sampling
episodes to characterize untreated wastewaters generated by coal-fired
power plants, including FGD wastewater, and fly ash and bottom ash
transport water. EPA also collected samples to assess the effluent
quality from different types of treatment systems currently in place at
these operations. Samples were analyzed for metals and other
pollutants, such as total suspended solids and nitrogen. Sampling
reports for the first five episodes are included in the docket for the
2008 Plan, and the report for the final sampling episode is included in
the docket for the 2010 Plan (see DCN 06197). These reports discuss the
specific sample points and analytes, the sample collection methods
used, the field quality control samples collected, and the analytical
results for the wastewater samples.
    EPA expects that the use of wet FGD systems will increase
substantially over the next decade as State and Federal regulations are
implemented to reduce air emissions. Metals and other pollutants are
transferred from the flue gas to the wastewater produced by wet FGD
systems. Based on results from the sampling and other data, EPA
determined that there are unregulated toxic and conventional pollutants
present in ash pond and FGD wastewater which can be reduced
significantly with treatment technologies.
    An increasing amount of evidence indicates that the characteristics
of coal combustion wastewater have the potential to impact human health
and the environment. Discharges of coal combustion wastewater have been
associated with fish kills, reductions in the growth and survival of
aquatic organisms, behavioral and physiological effects in wildlife and
aquatic organisms, potential impacts to human health (e.g., drinking
water contamination), and changes to the local habitat. Many of the
pollutants commonly found in coal combustion wastewater (e.g.,
selenium, mercury, and arsenic) are known to cause environmental harm
and potentially represent a human health risk. Although

coal-fired power plants often dilute coal combustion wastewater with
other large volume wastewater (e.g., cooling water) to reduce the
pollutant concentrations prior to discharge, the effluent can contain
large mass loads (i.e., total pounds) of pollutants. Some of the
pollutants in these discharges, although present at low concentrations,
can bioaccumulate and present an increased ecological threat due to
their tendency to persist in the environment, resulting in slow
ecological recovery times following exposure. In addition, leachate
from impoundments and landfills containing coal combustion wastes can
contain high concentrations of pollutants and has been identified as a
source of ground water and surface water impacts.
    Additional information about data collected and findings of the
detailed study of the Steam Electric Power Generating industry is
presented in the final study report, ``Steam Electric Power Generating
Point Source Category: Final Detailed Study Report,'' (see DCN 06390).
The report includes data on the characteristics of wastewater from coal
fired power plants, identifies the wastewater treatment technologies
reviewed, presents an overview of the industry profile and predicted
future trends in the use of air pollution controls, and describes
environmental impacts that have been linked to coal combustion
wastewater.
    The Agency expects that data collection efforts for the effluent
guidelines rulemaking will include wastewater sampling and issuing a
survey that will obtain detailed technical and financial information.
In particular, EPA recently published a Federal Register notice
announcing its intent to submit an Information Collection Request (ICR)
to the Office of Management and Budget (OMB) for their review and
approval under the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, et
seq. See 74 FR 55837 (October 29, 2009).
c. Oil and Gas Extraction (Part 435) (Only To Assess Whether To Include
Coalbed Methane Extraction as a New Subcategory).
    Coalbed methane (CBM) extraction activities accounted for about 7%
of the total U.S. natural gas production (gross withdrawals) in 2007
and are expanding in multiple basins across the U.S. Currently, the
Department of Energy's Energy Information Administration (EIA) expects
CBM production to remain an important source of domestic natural gas
over the next few decades.
    CBM extraction requires removal of large amounts of water from
underground coal seams before CBM can be released. CBM wells have a
distinctive production history characterized by an early stage when
large amounts of water are produced to reduce reservoir pressure which
in turn encourages release of gas. This is followed by a stable stage
when quantities of produced gas increase as the quantities of produced
water decrease; and a late stage when the amount of gas produced
declines and water production remains low (see EPA-HQ-OW-2004-0032-
1904).
    The quantity and quality of water that is produced in association
with CBM development varies from basin to basin, within a particular
basin, from coal seam to coal seam, and over the lifetime of a CBM
well. Pollutants often found in these wastewaters include chloride,
sodium, sulfate, bicarbonate, fluoride, iron, barium, magnesium,
ammonia, and arsenic. Total dissolved solids (TDS) and electrical
conductivity (EC) are bulk parameters that States typically use for
quantifying and controlling the amount of pollutants in CBM produced
waters.
    EPA identified the coalbed methane (CBM) sector as a candidate for
a detailed study in the final 2006 Effluent Guidelines Program Plan (71
FR 76656; December 21, 2006). As part of that announcement EPA made it
clear that it would conduct data collection through an information
collection request (ICR) to support this detailed study. In accordance
with the Paperwork Reduction Act (PRA), EPA obtained approval from the
Office of Management and Budget (OMB) for its ``Coalbed Methane
Extraction Sector Survey'' on February 18, 2009. This approval followed
two public comment periods on the survey (January 25, 2008; 73 FR 4556
and July 15, 2008; 73 FR 40757) and more than two years of outreach by
EPA with interested stakeholders.
    The approved mandatory survey, conducted under the authority of
Section 308 of the Clean Water Act (33 U.S.C. Section 1318), includes a
screener and a detailed questionnaire. EPA sent the screener
questionnaire in February 2009 to all CBM methane operators that have
three or more CBM wells. EPA used data from 291 screener questionnaires
and state data on operators with one or two CBM wells to identify that
in 2008 there were 56,049 CBM wells that operators managed in 692
different CBM projects. This CBM production, 2.0 trillion cubic feet,
represents approximately 7.7 percent of the total U.S. natural gas
production in 2008. The 692 CBM projects are located in 16 different
CBM basins across the Nation but are mainly concentrated in the States
of Wyoming, New Mexico, Oklahoma, and Alabama. EPA used these data to
draw a representative sample of CBM projects. EPA began distribution of
the detailed questionnaire to the representative sample of CBM projects
in late October 2009. The detailed questionnaire will collect financial
and technical data on approximately 250 CBM methane projects across the
country.
    EPA will use the screener and detailed questionnaires to collect
technical and economic information from a wide range of CBM operations.
EPA plans to collect information on geographical and geologic
differences in the characteristics of CBM produced waters,
environmental data, current regulatory controls, and availability and
affordability of treatment technology options.
    EPA also visited eight different CBM produced water treatment
technologies in Wyoming. Included in these technologies are ion
exchange, reverse osmosis, thermal distillation, and lined pit disposal
and evaporation. These site visits supplemented EPA site visits to
Pennsylvania, West Virginia, Virginia, Alabama, New Mexico, Colorado,
Wyoming, and Montana in 2007 (see EPA-HQ-OW-2006-0771-0977).
    EPA is also conducting a literature review of environmental impacts
and beneficial uses of produced water. The literature review is being
conducted in three phases focusing on: (1) Scientific journal articles,
(2) documents retrieved from Web sites of State and Federal agencies,
universities, and non-governmental organizations, and (3)
environmentally sustainable beneficial uses of produced water. Results
of the first phase are included in the docket (see DCN 06934).
Additionally, EPA will be reviewing current requirements for surface
water discharge of produced water. Currently, regulatory controls for
CBM produced waters vary from State to State and permit to permit (see
EPA-HQ-OW-2004-0032-2782, 2540). The assessment of State permitting
requirements for surface water discharge of produced water will examine
factors such as the number of current permits, the proportion of
discharges covered under individual versus general permits, the types
of pollutants controlled, and the numeric concentration limits
required. This assessment will give EPA a better understanding of
variations and consistencies among States in controlling CBM produced
water discharges.
    Finally, EPA is soliciting public comment on whether it should
expand its detailed study of coalbed methane extraction to include all
oil and gas

exploration, stimulation, and extraction techniques that result in
contamination of surface and groundwater, including hydraulic
fracturing in all formations.
3. Results of Preliminary Category Reviews
    During the 2008 annual review, EPA identified the Ore Mining and
Dressing (Part 440) category for a preliminary category review for two
reasons: (1) The industry has a high TWPE discharge estimate of process
wastewater (i.e., EPA identified this category with ``(5)'' in the
column entitled ``Findings'' in Table V-1, Page 53231 of the final 2008
Plan); and (2) comments received on previous Plans assert that better
controls are needed for stormwater discharges to surface water at ore
mining sites. Stormwater discharges from Ore Mining and Dressing
facilities that are not commingled with process wastewater are not
regulated by effluent guidelines but are regulated under individual or
general stormwater NPDES permits. This preliminary category review is
on-going.
    EPA performed several analyses during the 2009 annual review. These
analyses included: (1) Coordinating with the primary western ore mining
States to collect information for mines classified as NPDES minor
facilities (i.e., collecting information States do not typically submit
to EPA's ICIS or PCS databases); (2) reviewing journals and technical
literature to identify the latest advances in wastewater treatment
technologies; and (3) reviewing Total Maximum Daily Load (TMDL) plans
to determine whether active ore mine discharges are discharging into
impaired waterbodies. Section IX of this notice and the TSD for the
preliminary 2010 Plan (see DCN 06703) lists the data and information
that EPA would like to collect on the pollutant discharges and
potential treatment technology options for the Ore Mining and Dressing
category in order to complete this preliminary category review.
4. Summary of 2009 Annual Review Findings
    In its 2009 annual review, EPA reviewed all categories subject to
existing effluent guidelines and pretreatment standards in order to
identify appropriate candidates for revision. Based on this review and
prior annual reviews, and in light of the ongoing effluent guidelines
rulemakings and detailed studies currently in progress, EPA has decided
to pursue an effluent guidelines rulemaking for the Steam Electric
Power Generating (Part 423) category. Additionally, EPA is continuing
to conduct detailed studies for two existing categories: Oil and Gas
Extraction (only with respect to coalbed methane) and Hospitals (part
of the Health Care Industry detailed study).
    A summary of the findings of the 2009 annual review is presented
below in Table V-1. This table uses the following codes to describe the
Agency's findings with respect to each existing industrial category.
    (1) Effluent guidelines or pretreatment standards for this
industrial category were recently revised or reviewed through an
effluent guidelines rulemaking, or a rulemaking is currently underway.
    (2) Revising the national effluent guidelines or pretreatment
standards is not the best tool for this industrial category because
most of the toxic and non-conventional pollutant discharges are from
one or a few facilities in this industrial category. EPA will consider
assisting permitting authorities in identifying pollutant control and
pollution prevention technologies for the development of technology-
based effluent limitations by best professional judgment (BPJ) on a
facility-specific basis.
    (3) Not identified as a hazard priority based on data available at
this time (e.g., not among industries that cumulatively comprise 95% of
reported hazard in TWPE units).
    (4) EPA intends to continue a detailed study of this industry in
its 2010 annual review to determine whether to identify the category
for effluent guidelines rulemaking.
    (5) EPA is continuing or initiating a preliminary category review
because incomplete data are available to determine whether to conduct a
detailed study or identify for possible revision. EPA typically
performs a further assessment of the pollutant discharges before
starting a detailed study of the industrial category. This assessment
provides an additional level of quality assurance on the reported
pollutant discharges and number of facilities that represent the
majority of toxic-weighted pollutant discharges. EPA may also develop a
preliminary list of potential wastewater pollutant control technologies
before conducting a detailed study. See the appropriate section in the
TSD for the preliminary 2010 Plan (see DCN 06703) for EPA's data needs
for industries in this category.

   Table V-1--Findings From the 2009 Annual Review of Effluent Guidelines and Pretreatment Standards Conducted
                            Under Section 301(d), 304(b), 304(g), 304(m), and 307(b)
----------------------------------------------------------------------------------------------------------------
                                                  Industry Category (Listed                          Findings
                    No.                                Alphabetically)              40 CFR part      [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             (3)
9..........................................  Coal Mining........................             434             (3)
10.........................................  Coil Coating.......................             465             (3)
11.........................................  Concentrated Animal Feeding                     412             (1)
                                              Operations (CAFO).
12.........................................  Concentrated Aquatic Animal                     451             (1)
                                              Production.
13.........................................  Construction and Development.......             450             (1)
14.........................................  Copper Forming.....................             468             (3)
15.........................................  Dairy Products Processing..........             405             (3)
16.........................................  Electrical and Electronic                       469             (3)
                                              Components.
17.........................................  Electroplating.....................             413             (1)
18.........................................  Explosives Manufacturing...........             457             (3)
19.........................................  Ferroalloy Manufacturing...........             424             (3)
20.........................................  Fertilizer Manufacturing...........             418             (3)

21.........................................  Glass Manufacturing................             426             (3)
22.........................................  Grain Mills........................             406             (3)
23.........................................  Gum and Wood Chemicals.............             454             (3)
24.........................................  Hospitals \2\......................             460             (4)
25.........................................  Ink Formulating....................             447             (3)
26.........................................  Inorganic Chemicals [Dagger].......             415     (1) and (3)
27.........................................  Iron and Steel Manufacturing.......             420             (1)
28.........................................  Landfills..........................             445             (3)
29.........................................  Leather Tanning and Finishing......             425             (3)
30.........................................  Meat and Poultry Products..........             432             (1)
31.........................................  Metal Finishing....................             433             (1)
32.........................................  Metal Molding and Casting..........             464             (3)
33.........................................  Metal Products and Machinery.......             438             (1)
34.........................................  Mineral Mining and Processing......             436             (3)
35.........................................  Nonferrous Metals Forming and Metal             471             (3)
                                              Powders.
36.........................................  Nonferrous Metals Manufacturing....             421             (3)
37.........................................  Oil and Gas Extraction.............             435             (4)
38.........................................  Ore Mining and Dressing............             440             (5)
39.........................................  Organic Chemicals, Plastics, and                414     (1) and (3)
                                              Synthetic Fibers [Dagger].
40.........................................  Paint Formulating..................             446             (3)
41.........................................  Paving and Roofing Materials (Tars              443             (3)
                                              and Asphalt).
42.........................................  Pesticide Chemicals................             455             (3)
43.........................................  Petroleum Refining.................             419             (3)
44.........................................  Pharmaceutical Manufacturing.......             439             (3)
45.........................................  Phosphate Manufacturing............             422             (3)
46.........................................  Photographic.......................             459             (3)
47.........................................  Plastic Molding and Forming........             463             (3)
48.........................................  Porcelain Enameling................             466             (3)
49.........................................  Pulp, Paper, and Paperboard........             430             (3)
50.........................................  Rubber Manufacturing...............             428             (3)
51.........................................  Soaps and Detergents Manufacturing.             417             (3)
52.........................................  Steam Electric Power Generating                 423             (1)
                                              [dagger][dagger].
53.........................................  Sugar Processing...................             409             (3)
54.........................................  Textile Mills......................             410             (3)
55.........................................  Timber Products Processing.........             429             (3)
56.........................................  Transportation Equipment Cleaning..             442             (3)
57.........................................  Waste Combustors...................             444             (3)
----------------------------------------------------------------------------------------------------------------
[dagger] Note: The descriptions of the ``Findings'' codes are presented immediately prior to this table.
[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 ongoing 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.
[dagger][dagger] Note: EPA is using the preliminary 2010 Plan to conclude its detailed study of this category
  and to announce its decision to identify the category for an effluent guidelines rulemaking.

VI. EPA's 2010 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
304(m), and 307(b)

    As discussed in section V and further in section VIII, EPA is
coordinating its annual reviews of existing effluent guidelines and
pretreatment standards under CWA sections 301(d), 304(b), 307(b) and
304(g) with the publication of preliminary Plans and biennial Plans
under section 304(m). Public comments received on EPA's prior reviews
and Plans helped the Agency prioritize its analysis of existing
effluent guidelines and pretreatment standards during the 2009 review.
The information gathered during the 2009 annual review, including the
identification of data gaps in the analysis of certain categories with
existing regulations, in turn, provides a starting point for EPA's 2010
annual review. See Table V-1 in section V.B.4 of this notice. In 2010,
EPA intends to again conduct a screening-level analysis of all 57
categories and compare the results against those from previous years.
---------------------------------------------------------------------------

    \2\ 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 Care 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.
---------------------------------------------------------------------------

    EPA will also conduct further review of the industrial categories
currently regulated by existing effluent guidelines that cumulatively
comprise 95% of the reported hazard (reported in units of toxic-
weighted pound equivalent or TWPE). Additionally, EPA intends to
continue detailed studies of the following two categories with existing
effluent guidelines and pretreatment standards: Oil and Gas Extraction
(Part 435) (only to assess whether to include coalbed methane
extraction as a new subcategory) and Hospitals (Part 460) (which is
part of the Health Care Industry detailed study). EPA is continuing its
preliminary category review for the Ore Mining and Dressing category in
the 2010 annual review. EPA invites comment and data on the two
detailed studies, the one preliminary category review, and all
remaining point source categories.

VII. EPA's Evaluation of Categories of Indirect Dischargers Without
Categorical Pretreatment Standards to Identify Potential New Categories
for Pretreatment Standards

A. EPA's Evaluation of Pass Through and Interference of Toxic and Non-
Conventional Pollutants Discharged to POTWs

    All indirect dischargers are subject to general pretreatment
standards (40 CFR 403), including a prohibition on discharges causing
``pass through'' or ``interference.'' See 40 CFR 403.5. All POTWs with
approved pretreatment programs must develop local limits to implement
the general pretreatment standards. All other POTWs must develop such
local limits where they have experienced ``pass through'' or
``interference'' and such a violation is likely to recur. There are
approximately 1,500 POTWs with approved pretreatment programs and
13,500 small POTWs that are not required to develop and implement
pretreatment programs.
    In addition, EPA establishes technology-based national regulations,
termed ``categorical pretreatment standards,'' for categories of
industry discharging pollutants to POTWs that may pass through,
interfere with or otherwise be incompatible with POTW operations. CWA
section 307(b). Generally, categorical pretreatment standards are
designed such that wastewaters from direct and indirect industrial
dischargers are subject to similar levels of treatment. EPA has
promulgated such pretreatment standards for 35 industrial categories.
    One of the tools traditionally used by EPA in evaluating whether
pollutants ``pass through'' a POTW is a comparison of the percentage of
a pollutant removed by POTWs with the percentage of the pollutant
removed by discharging facilities applying BAT. Pretreatment standards
for existing sources are technology based and are analogous to BAT
effluent limitations guidelines. In most cases, EPA has concluded that
a pollutant passes through the POTW when the median percentage removed
nationwide by representative POTWs (those meeting secondary treatment
requirements) is less than the median percentage removed by facilities
complying with BAT effluent limitations guidelines for that pollutant.
This approach to the definition of ``pass through'' satisfies two
objectives set by Congress: (1) That standards for indirect dischargers
be equivalent to standards for direct dischargers; and (2) that the
treatment capability and performance of POTWs be recognized and taken
into account in regulating the discharge of pollutants from indirect
dischargers.
    The term ``interference'' means a discharge which, alone or in
conjunction with a discharge or discharges from other sources, both:
(1) Inhibits or disrupts the POTW, its treatment processes or
operations, or its sludge processes, use or disposal; and (2) therefore
is a cause of a violation of any requirement of the POTW's NPDES permit
(including an increase in the magnitude or duration of a violation) or
of the prevention of sewage sludge use or disposal in compliance with
applicable regulations or permits. See 40 CFR 403.3(i). To determine
the potential for ``interference,'' EPA generally evaluates the
industrial indirect discharges in terms of: (1) The compatibility of
industrial wastewaters and domestic wastewaters (e.g., type of
pollutants discharged in industrial wastewaters compared to pollutants
typically found in domestic wastewaters); (2) concentrations of
pollutants discharged in industrial wastewaters that might cause
interference with the POTW collection system, the POTW treatment
system, or biosolids disposal options; and (3) the potential for
variable pollutant loadings to cause interference with POTW operations
(e.g., batch discharges or slug loadings from industrial facilities
interfering with normal POTW operations).
    If EPA determines a category of indirect dischargers causes pass
through or interference, EPA would then consider the BAT and BPT
factors (including ``such other factors as the Administrator deems
appropriate'') specified in section 304(b) to determine whether to
establish pretreatment standards for these activities. Examples of
``such other factors'' include a consideration of the magnitude of the
hazard posed by the pollutants discharged as measured by: (1) The total
annual TWPE discharged by the industrial sector; and (2) the average
TWPE discharge among facilities that discharge to POTWs. Additionally,
EPA would consider whether other regulatory tools (e.g., use of local
limits under Part 403) or voluntary measures would better control the
pollutant discharges from this category of indirect dischargers. For
example, EPA relied on a similar evaluation of ``pass through
potential'' in its prior decision not to promulgate national
categorical pretreatment standards for the Industrial Laundries
industry. See 64 FR 45071 (August 18, 1999). EPA noted in this 1999
final action that, ``While EPA has broad discretion to promulgate such
[national categorical pretreatment] standards, EPA retains discretion
not to do so where the total pounds removed do not warrant national
regulation and there is not a significant concern with pass through and
interference at the POTW.'' See 64 FR 45077 (August 18, 1999).
    EPA reviewed TRI 2007 discharge data in order to identify industry
categories without categorical pretreatment standards that are
discharging pollutants to POTWs that may pass through, interfere with
or otherwise be incompatible with POTW operations (see DCN 06703). This
review did not identify any such industrial categories. EPA also
evaluated stakeholder comments and pollutant discharge information in
the previous annual reviews to inform this review. In particular, EPA
received stakeholder comments on the issues of dental amalgam and
unused pharmaceuticals management for the Health Care Industry in
response to the 2007 annual review. As discussed in the final 2008 Plan
EPA is again not identifying dental facilities for an effluent
guidelines rulemaking in this notice at this time (September 15, 2008;
73 FR 53233). However, EPA is continuing its study of unused
pharmaceutical management for the Health Care Industry.
    EPA also solicits comment and data on all industrial sectors not
currently subject to categorical pretreatment standards for its 2010
review. Finally, EPA solicits comment on data sources and on methods
for collecting and aggregating pollutant discharge data collected by
pretreatment programs to further inform its future review of industry
categories without categorical pretreatment standards.

B. Unused Pharmaceuticals

    To date, scientists have identified numerous pharmaceutical
compounds at discernable concentrations in our nation's rivers, lakes,
and streams (see EPA-HQ-OW-2006-0771-1694). To address this issue at
the source, EPA is studying how the drugs are entering our waterways
and what factors contribute to the current situation. Towards this end,
EPA initiated a study on pharmaceutical disposal practices at health
care facilities including hospitals, hospices, long-term care
facilities, health care clinics, doctor's offices, and veterinary
facilities. Unused pharmaceuticals include dispensed prescriptions that
patients do not use as well as materials that are beyond their
expiration dates. Another potential source of unused pharmaceuticals is
the residuals remaining in used and partially used dispensers,
containers,

and devices. In particular, the medications contained in the
dispensers, containers and devices may be sewered (e.g., intravenous
(IV) bags emptied into sink).\3\ For many years, a standard practice at
many health care facilities was to dispose of unused pharmaceuticals by
flushing them down the toilet or drain.
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    \3\ As a point of clarification, the term ``unused
pharmaceuticals'' does not include excreted pharmaceuticals.
---------------------------------------------------------------------------

    For the 2008 final Plan, EPA completed an interim technical report
for the Health Care Industry (see EPA-HQ-OW-2006-0771-1694). The
interim technical report focused on hospitals and long-term care
facilities (LTCFs) because these facilities are likely responsible for
the largest amounts of unused pharmaceuticals being disposed into
sewage collection systems within this industry sector. In 2005, there
were about 7,000 hospitals and 35,000 LTCFs in the United States (see
EPA-HQ-OW-2006-0771-1694). EPA is continuing its detailed study to
investigate the following questions:
     What are the current industry practices for disposing of
unused pharmaceuticals?
     What types of pharmaceuticals are being disposed?
     What are the options for disposing of unused
pharmaceuticals other than down the drain or toilet?
     What factors influence disposal decisions?
     Do disposal practices differ within industry sectors?
     What Best Management Practices (BMPs) could facilities
implement to reduce the generation of unused pharmaceuticals?
     What are the costs of current disposal practices compared
to the costs of implementing BMPs or alternative disposal methods?
    Since the publication of the final 2008 plan, EPA also reviewed
comments received on the first Federal Register notice for the health
care industry ICR published on August 12, 2008 (73 FRN 46903). The ICR
was originally developed to collect technical and economic information
on unused pharmaceutical management and to identify technologies and
BMPs that reduce or eliminate the discharge of unused pharmaceuticals
to POTWs. EPA received 31 comments and conducted outreach meetings with
industry to obtain further comments on the survey design and
instrument.
    Commenters included hospitals and clinics, health care trade
associations, pharmacists associations, reverse distributors,
pharmaceutical manufacturers, individuals, and municipal wastewater
treatment plants and their associations. Following publication of the
first Federal Register notice for the ICR, EPA conducted three
teleconferences in September 2008 with 259 stakeholders to provide an
overview of the project, scope of the survey instrument, potential
recipients, and schedule. These meetings solicited early feedback from
participants to facilitate the development of a subsequent draft of the
survey instrument and population and sample frames. These
teleconferences also identified interested stakeholders for the site
visits/additional outreach meetings. Overall, the comments received
were supportive of the survey. Most commenters had a number of
suggestions on how to improve the survey. Improvements suggested were
to expand the scope of sectors receiving the survey, to shorten the
survey, and to tailor the survey to each health care sector. There were
a few health care organizations who felt a survey was not necessary for
a variety of reasons including burden to the facilities, that they are
already practicing BMPs, or that they would favor the more immediate
issuance of EPA guidance.
    In addition to exploring the use of an industry survey, EPA has
continued to study the issue of how health care facilities are managing
and disposing of unused pharmaceuticals and POTW treatment
effectiveness in an effort to identify the root cause and potential
solutions to address the issue of pharmaceuticals in our waterways.
Since the publication of the final 2008 Plan, EPA conducted site visits
to 3 additional hospitals in 3 States, four LTCFs in three States, a
veterinary hospital, a long-term care pharmacy, a hospice, an oncology
clinic, and a waste management vendor facility to obtain more detailed
information on how pharmaceuticals are managed, tracked, and disposed
as well as influences on behavior (see DCN 06496). During each site
visit, EPA collected general site information and specific unused
pharmaceutical management and disposal information. The objectives of
these site visits included:
     Collect information on the amount of unused
pharmaceuticals disposed when available;
     Observe pharmaceutical waste management practices;
     Identify common industry disposal practices, guidance, and
regulatory requirements;
     Identify challenges with the generation and disposal of
unused, unwanted, and expired pharmaceuticals;
     Identify BMPs and their costs; and
     Gather information about how hospitals, LTCFs, or other
facilities operate.
    Additionally, EPA contacted other types of health care facilities
(e.g., medical and dental offices, university and prison health
clinics, and veterinary clinics) to learn about their unused
pharmaceutical disposal practices. EPA also reviewed studies on POTW
pharmaceutical treatment effectiveness and the potential pathways for
unused pharmaceuticals to be released into the environment (see DCN
06571).
    In summary, since the study began in 2007 EPA has worked with a
wide range of stakeholders (e.g., industry representatives; Federal,
State, local and Tribal government representatives; waste management
and disposal companies; and other interested parties) to obtain the
best available information on the industry and its unused
pharmaceutical management practices. In total, EPA met or spoke with
over 700 different people during the outreach and data collection
activities from 2007 through 2009 (see DCN 06496). Based on its
outreach and data gathering, the Agency estimates that hospitals and
long-term care facilities have the greatest amounts of unused
pharmaceuticals as compared with other health care sectors (e.g.,
dentist, retail pharmacies).
    EPA's outreach has also identified that there is near universal
interest from stakeholders to better manage unused pharmaceuticals at
health care facilities. There is also general interest in more quickly
advancing the use of best practices for managing unused pharmaceuticals
at health care facilities. This considerable outreach and data
collection has led EPA to re-consider the use of an industry survey for
this sector. The survey would be an effective but potentially time-
consuming tool for gathering facility-specific data on the management
of unused pharmaceuticals. EPA estimates that it has gathered
sufficient data from its site visits and outreach to begin the
development of best practices for unused pharmaceutical management at
health care facilities. During the next year EPA will continue to work
with a variety of stakeholders in the development of these best
practices and the means for their dissemination and adoption. EPA
expects to complete the development of these best practices for the
final 2010 Plan.

VIII. The Preliminary 2010 Effluent Guidelines Program Plan Under
Section 304(m)

    In accordance with CWA section 304(m)(2), EPA is publishing this
preliminary 2010 Plan for public comment prior to this publication of
the final 2010 Plan.

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

1. Schedule for 2009 and 2010 Annual Reviews Under Section 304(b) and
304(m)
    As noted in section IV.B, CWA section 304(m)(1)(A) requires EPA to
publish a Plan every two years that establishes a schedule for the
annual review and revision, in accordance with section 304(b), of the
effluent guidelines that EPA has promulgated under that section. This
preliminary 2010 Plan announces EPA's schedule for performing its
section 304(b) reviews. The schedule is as follows: EPA will coordinate
its annual review of existing effluent guidelines under section 304(b)
with its publication of the preliminary and final Plans under CWA
section 304(m). In other words, in odd-numbered years, EPA intends to
complete its annual review upon publication of the preliminary Plan
that EPA must publish for public review and comment under CWA section
304(m)(2). In even-numbered years, EPA intends to complete its annual
review upon the publication of the final Plan. EPA's 2009 annual review
ends with the publication of this preliminary 2010 Plan in this notice.
    EPA is coordinating its annual reviews under section 304(b) with
publication of Plans under section 304(m) for several reasons. First,
the annual review is inextricably linked to the planning effort,
because the results of each annual review can inform the content of the
preliminary and final Plans, e.g., by identifying candidates for ELG
revision for which EPA can schedule rulemaking in the Plan, or by
calling to EPA's attention point source categories for which EPA has
not promulgated effluent guidelines. Second, even though not required
to do so under either section 304(b) or section 304(m), EPA believes
that the public interest is served by periodically presenting to the
public a description of each annual review (including the review
process employed) and the results of the review. Doing so at the same
time EPA publishes preliminary and final plans makes both processes
more transparent. Third, by requiring EPA to review all existing
effluent guidelines each year, Congress appears to have intended that
each successive review would build upon the results of earlier reviews.
Therefore, by describing the 2009 annual review along with the
preliminary 2010 Plan, EPA hopes to gather and receive data and
information that will inform its reviews for 2010 and the final 2010
Plan.
2. Schedule for Possible Revision of Effluent Guidelines Promulgated
Under Section 304(b)
    EPA is currently conducting a rulemaking to potentially revise
existing effluent guidelines and pretreatment standards for the
following categories: Organic Chemicals, Plastics and Synthetic Fibers
(OCPSF) and Inorganic Chemicals (to address discharges from Vinyl
Chloride and Chlor-Alkali facilities identified for effluent guidelines
rulemaking in the final 2004 Plan, now termed the ``Chlorine and
Chlorinated Hydrocarbon (CCH) manufacturing'' rulemaking). EPA
previously indicated it would conduct an industry survey for this
effluent guidelines rulemaking (April 18, 2006; 71 FR 19887). EPA is
considering its next steps for this survey and the rulemaking as it
reviews data from a voluntary industry monitoring program. EPA worked
with industry to develop the extensive monitoring program to better
understand the category's pollutant discharges. EPA has decided to
pursue an effluent guidelines rulemaking for the Steam Electric Power
Generating (Part 423) category. EPA is not scheduling any other
existing effluent guidelines for rulemaking at this time.

B. Identification of Potential New Point Source Categories Under CWA
Section 304(m)(1)(B)

    The final Plan must also identify categories of sources discharging
non-trivial amounts of toxic or non-conventional pollutants for which
EPA has not published effluent limitations guidelines under section
304(b)(2) or new source performance standards (NSPS) under section 306.
See CWA section 304(m)(1)(B); S. Rep. No. 99-50, Water Quality Act of
1987, Leg. Hist. 31 (indicating that section 304(m)(1)(B) applies to
``non-trivial discharges''). The final Plan must also establish a
schedule for the promulgation of effluent guidelines for the categories
identified under section 304(m)(1)(B), providing for final action on
such rulemaking not later than three years after the identification of
the category in a final Plan. See CWA section 304(m)(1)(C). EPA also
has a duty to promulgate effluent guidelines within three years for new
categories identified in the Plan. See NRDC et al. v. EPA, 437
F.Supp.2d 1137 (C.D. Ca, 2006).
    EPA is currently conducting an effluent guidelines rulemaking for
one new industrial category--Airport Deicing Operations--which was
identified as a potential new category in the final 2004 Plan
(September 2, 2004; 69 FR 53705). EPA published a notice of proposed
rulemaking for this category on August 28, 2009 (74 FR 44676).
Additionally, EPA recently completed an effluent guidelines rulemaking
for the Construction and Development category (40 CFR 450) 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). EPA proposed effluent
guidelines for this category on November 28, 2008 (73 FR 72561) and
published final effluent guidelines on December 1, 2009 (74 FR 62995).
EPA is not at this time proposing to identify any other potential new
categories for effluent guidelines rulemaking and therefore is not
scheduling effluent guidelines rulemaking for any such categories in
this preliminary Plan.
    In order to identify industries not currently subject to effluent
guidelines, EPA primarily used data from TRI, PCS, and ICIS-NPDES.
Facilities with data in TRI, PCS, and ICIS-NPDES are identified by a
four-digit SIC code or six-digit North American Industry Classification
System (NAICS) code (see DCN 06557). NAICS codes are a new economic
classification system that replaces the SIC system, which has
traditionally been used by the Federal Government for collecting and
organizing industry-related statistics. The PCS and ICIS-NPDES data
systems use SIC codes while the TRI system recently switched to NAICS
codes.
    EPA performs a crosswalk between the TRI, PCS, and ICIS-NPDES
discharge data, identified with SIC or NAICS codes, and the 57 point
source categories with effluent guidelines or pretreatment standards to
determine if each SIC or NAICS code is currently regulated by existing
effluent guidelines (see DCN 06703). EPA also relied on comments
received on its previous 304(m) plans to identify potential new
categories. EPA then assessed whether these industrial sectors not
currently regulated by effluent guidelines meet the criteria specified
in section 304(m)(1)(B), as discussed below. EPA notes that the Ninth
Circuit has recently held that the precise number and kind of
categories identified by EPA in its 304(m) planning process is
discretionary with the Administrator.

Our Children's Earth v. EPA, 527 F.3d 842, 852 (9th Cir. 2008).
    The first criterion for identifying industries under section
304(m)(1)(B) is whether they are ``categories of sources'' for which
EPA has not promulgated effluent guidelines. Because this section does
not define the term ``categories,'' EPA interprets this term based on
the use of the term in other sections of the Clean Water Act,
legislative history, and Supreme Court case law, and in light of
longstanding Agency practice. These sources indicate that the term
``categories'' refers to an industry as a whole based on similarity of
product produced or service provided, and is not meant to refer to
specific industrial activities or processes involved in generating the
product or service. EPA therefore interprets section 304(m)(1)(B) in
its biennial Plan as only applying to those new industries that it
determines are properly considered stand-alone ``categories'' within
the meaning of the Act--not those that are properly considered
potential new subcategories of existing categories based on similarity
of product or service.
    EPA's interpretation of the term ``categories'' is consistent with
longstanding Agency practice. Pursuant to CWA section 304(b), which
requires EPA to establish effluent guidelines for ``classes and
categories of point sources,'' EPA has promulgated effluent guidelines
for 57 industrial ``categories.'' Each of these ``categories'' consists
of a broad array of facilities that produce a similar product or
perform a similar service--and is broken down into smaller subsets,
termed ``subcategories,'' that reflect variations in the processes,
treatment technologies, costs and other factors associated with the
production of that product that EPA is required to consider in
establishing effluent guidelines under section 304(b). For example, the
``Pulp, Paper and Paperboard point source category'' (40 CFR part 430)
encompasses a diverse range of industrial facilities involved in the
manufacture of a like product (paper); the facilities range from mills
that produce the raw material (pulp) to facilities that manufacture
end-products such as newsprint or tissue paper. EPA's classification of
this ``industry by major production processes used many of the
statutory factors set forth in CWA Section 304(b), including
manufacturing processes and equipment (e.g., chemical, mechanical, and
secondary fiber pulping; pulp bleaching; paper making); raw materials
(e.g., wood, secondary fiber, non-wood fiber, purchased pulp); products
manufactured (e.g., unbleached pulp, bleached pulp, finished paper
products); and, to a large extent, untreated and treated wastewater
characteristics (e.g., BOD loadings, presence of toxic chlorinated
compounds from pulp bleaching) and process water usage and discharge
rates.'' \4\ Each subcategory reflects differences in the pollutant
discharges and treatment technologies associated with each process.
Similarly, the ``Iron and Steel Manufacturing point source category''
(40 CFR part 420) consists of various subcategories that reflect the
diverse range of processes involved in the manufacture of iron and
steel, ranging from facilities that make the basic fuel used in the
smelting of iron ore (subpart A--Cokemaking) to those that cast the
molten steel into molds to form steel products (subpart F--Continuous
Casting). An example of an industry category based on similarity of
service provided is the Transportation Equipment Cleaning Point Source
Category (40 CFR Part 442), which is subcategorized based on the type
of tank (e.g., rail cars, trucks, barges) or cargo transported by the
tanks cleaned by these facilities, reflecting variations in wastewaters
and treatment technologies associated with each.
---------------------------------------------------------------------------

    \4\ U.S. EPA, 1997. Supplemental Technical Development Document
for Effluent Limitations Guidelines and Standards for the Pulp,
Paper, and Paperboard Category, Page 5-3, EPA-821-R-97-011, October
1997.
---------------------------------------------------------------------------

    The second criterion EPA considers when implementing section
304(m)(1)(B) also derives from the plain text of that section. By its
terms, CWA section 304(m)(1)(B) applies only to industrial categories
to which effluent guidelines under section 304(b)(2) or section 306
would apply, if promulgated. Therefore, for purposes of section
304(m)(1)(B), EPA would not identify in the biennial Plan any
industrial categories comprised exclusively or almost exclusively of
indirect discharging facilities regulated under section 307.
    Third, CWA section 304(m)(1)(B) applies only to industrial
categories of sources that discharge toxic or non-conventional
pollutants to waters of the United States. EPA therefore did not
identify in the Plan industrial activities for which conventional
pollutants, rather than toxic or non-conventional pollutants, are the
pollutants of concern. In addition, even when toxic and non-
conventional pollutants might be present in an industrial category's
discharge, section 304(m)(1)(B) does not apply when those discharges
occur in trivial amounts. This decision criterion leads EPA to focus on
those remaining industrial categories where, based on currently
available information, new effluent guidelines have the potential to
address a non-trivial discharge of toxic or non-conventional
pollutants.
    Finally, EPA interprets section 304(m)(1)(B) to give EPA the
discretion to identify in the Plan only those potential new categories
for which an effluent guidelines rulemaking may be an appropriate tool
for controlling discharges. Therefore, EPA does not identify in the
Plan all potential new categories discharging toxic and non-
conventional pollutants. Rather, EPA identifies only those potential
new categories for which it believes that effluent guidelines may be
appropriate, taking into account Agency priorities, resources and the
full range of other CWA tools available for addressing industrial
discharges.

IX. Request for Comment and Information

A. EPA Requests Information on the Coalbed Methane Sector of the Oil
and Gas Extraction Category (Part 435)

    EPA is researching the following questions and topics as they
relate to the quantity and toxicity of pollutants discharged and the
environmental impacts of these discharges to support the Oil and Gas
Extraction/Coalbed Methane detailed study.
    [dec221] What is the range of pollutant concentrations in CBM
produced water?
    [dec221] What is the toxicity of these pollutants to human health
and the environment?
    [dec221] What is the range of pollutant concentrations and what are
the CBM produced water flow rates for the major CBM basins?
    [dec221] What CBM produced water pollutants are typically
controlled through permit limits and what is the range of these permit
limits?
    [dec221] What are the observed and potential impacts of CBM
produced water discharges on aquatic environments and communities,
riparian zones, and other wetlands?
    [dec221] How does the composition of CBM produced water change when
discharged to normally dry draws or ephemeral streams? In particular,
to what extent do CBM produced water discharges mobilize metals, soil
nutrients, pesticides and other organic contaminants present in soil
and carry these constituents to surface waters?
    [dec221] What are measures that can mitigate potential impacts to
use of surface waters for irrigation? EPA is researching the following
questions and topics as they relate to the potential technology options
and beneficial use practices for this industrial sector.

    [dec221] What are the current industry treatment technologies for
CBM produced water?
    [dec221] What are the potential beneficial use applications of CBM
produced water and what are the corresponding criteria for such uses?
    [dec221] How effectively do these treatment technologies and
beneficial use practices reduce the potential adverse impacts of CBM
produced water discharges?
    [dec221] What is the range of incremental annualized compliance
costs associated with these technologies and practices? How do these
costs differ between existing and new sources?
    [dec221] What is the demonstrated use and economic affordability
(e.g., production losses, firm failures, employment impacts resulting
from production losses and firm failures, impacts on small businesses)
of these technologies across the different CBM basins?
    [dec221] What are the types of non-water quality environmental
impacts (including energy impacts) associated with the current industry
treatment technologies and beneficial use practices for CBM produced
water?
    EPA is researching the following questions and topics as they
relate to the expansion of CBM exploration and development and the
affordability of potential technology options for this industrial
sector.
    [dec221] What is the near-term and long-term growth rate for this
industry sector? Which CBM basins are likely to experience the most
growth within the next ten years?
    [dec221] What are the current industry drilling and infrastructure
expansion plans for CBM exploration and development?
    [dec221] What is the predicted range of CBM reserves across the
different basins that would be economically recoverable at different
natural gas prices?
    [dec221] What are the potential impacts on developing CBM reserves
and operator profitability and rates of return on investment of any
increased costs associated with potential industry treatment
technologies and beneficial use practices for CBM produced water
discharges?
    [dec221] What is the difference between potential impacts on
existing sources versus new sources?
    [dec221] What percentage of CBM operators are considered small
entities?
    EPA is researching the following questions and topics as they
relate to current regulatory controls.
    [dec221] How do NPDES permit programs regulate CBM produced water
discharges (e.g., individual permits, general permits)?
    [dec221] What is the BPJ basis for existing technology-based
effluent limits for CBM produced water discharges?
    [dec221] To what extent and how do current regulatory controls
ensure the beneficial use of CBM produced water?
    [dec221] What other statutes might affect the ability to discharge,
treat, or beneficially use CBM produced water (e.g., SDWA, RCRA)?

B. EPA Requests Comments and Information on the Following as It Relates
to Unused Pharmaceutical Management for the Health Care Industry

    [dec221] EPA solicits identification of any policies, procedures or
guidelines that govern the disposal of unused pharmaceuticals from
hospitals and hospices; offices of doctors and mental health
practitioners; nursing, long-term care, rehabilitation, and personal
care facilities; medical laboratories and diagnostic service
facilities; and veterinary care facilities.
    [dec221] EPA solicits comment and data on: (1) The main factors
that drive current disposal practices; and (2) any barriers preventing
the reduction or elimination of unused pharmaceuticals to POTWs and/or
surface waters. In particular, EPA solicits comment on the extent to
which that the Controlled Substances Act (21 U.S.C. 801 et. seq.)
complicates the design of an efficacious solution to drug disposal.
    [dec221] EPA solicits quantitative information or tracking sheets
for the past year on the disposal of unused pharmaceuticals via the
toilet, drain, or sewer.
    [dec221] EPA solicits data on how control authorities are currently
controlling disposal of unused pharmaceuticals via wastewater.
    [dec221] EPA solicits information on any technologies or BMPs that
are available to control, reduce, or eliminate the disposal of unused
pharmaceuticals to POTWs.
    [dec221] EPA solicits qualitative and quantitative data on the
effectiveness and annualized costs of the technologies or BMPs that
health service facilities use to control or eliminate the discharge of
unused pharmaceuticals from their wastewater. EPA is also interested in
obtaining information on the current costs (including labor) associated
with disposal of unused pharmaceuticals via the drain or toilet.
    [dec221] EPA solicits any studies or information on the potential
for unused pharmaceuticals that are disposed of in non-hazardous-waste
landfills to contaminate underground resources of drinking water.

C. Preliminary Category Review for the 2010 Annual Review

    EPA requests information on the Ore Mining and Dressing category
(i.e., the industrial point source category with existing effluent
guidelines identified with ``(5)'' in the column entitled ``Findings''
in Table V-1 in section V.B.4 of this notice). EPA will need to collect
more information for the 2010 annual review. Specifically, EPA hopes to
gather the following information:
    [dec221] What toxic pollutants are discharged from this industry
category in non-trivial amounts on an industry and per-facility basis?
    [dec221] What raw material(s) or process(es) are the sources of
these pollutants?
    [dec221] What technologies or management practices are available
(technically and economically) to control or prevent the generation
and/or release of these pollutants?

D. Data Sources and Methodologies

    EPA solicits comments on whether EPA used the correct evaluation
factors, criteria, and data sources in conducting its annual review and
developing this preliminary Plan. EPA also solicits comment on other
data sources EPA can use in its annual reviews and biennial planning
process. Please see the docket for a more detailed discussion of EPA's
analysis supporting the reviews in this notice (see DCN 06703).

E. BPJ Permit-Based Support

    EPA solicits comments on whether and if so how, the Agency should
provide EPA Regions and States with permit-based support instead of
revising effluent guidelines (e.g., when the vast majority of the
hazard is associated with one or a few facilities). EPA solicits
comment on categories for which the Agency should provide permit-based
support.

F. Identification of New Industrial Categories and Sectors

    EPA solicits comment on the methodology for grouping industrial
sectors currently not subject to effluent guidelines or pretreatment
standards for review and prioritization, and the factors and measures
EPA should consider for determining whether to identify such industries
for a rulemaking. EPA solicits comment on other data sources and
approaches EPA can use to identify industrial sectors currently not
subject to effluent guidelines or pretreatment standards for review and
prioritization.

G. Implementation Issues Related to Existing Effluent Guidelines and
Pretreatment Standards

    As a factor in its decision-making, EPA considers opportunities to
eliminate inefficiencies or impediments to pollution prevention or
technological innovation, or opportunities to promote innovative
approaches such as water quality trading, including within-plant
trading. Consequently, EPA solicits comment on implementation issues
related to existing effluent guidelines and pretreatment standards.

Notice of Availability of Preliminary 2010 Effluent Guidelines Program
Plan

H. EPA's Evaluation of Categories of Indirect Dischargers Without
Categorical Pretreatment Standards To Identify Potential New Categories
for Pretreatment Standards

    EPA solicits comments on its evaluation of categories of indirect
dischargers without categorical pretreatment standards. Specifically,
EPA solicits wastewater characterization data (e.g., wastewater
volumes, concentrations of discharged pollutants), current examples of
pollution prevention, treatment technologies, and local limits for all
industries without pretreatment standards. EPA also solicits comment on
whether there are industrial sectors discharging pollutants that cause
interference issues that cannot be adequately controlled through the
general pretreatment standards.

    Dated: December 17, 2009.
Peter S. Silva,
Assistant Administrator for Water.
[FR Doc. E9-30625 Filed 12-24-09; 8:45 am]

BILLING CODE 6560-50-P