[Federal Register: October 30, 2007 (Volume 72, Number 209)]
[Notices]
[Page 61335-61355]
[DOCID:fr30oc07-35]

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ENVIRONMENTAL PROTECTION AGENCY

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

Notice of Availability of Preliminary 2008 Effluent Guidelines
Program Plan

AGENCY: Environmental Protection Agency (EPA).

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

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SUMMARY: EPA establishes national, technology-based regulations known
as effluent guidelines and pretreatment standards to reduce pollutant
discharges from categories of industry discharging directly to waters
of the United States or discharging indirectly through Publicly Owned
Treatment Works (POTWs). The Clean Water Act (CWA) sections 301(d),
304(b), 304(g), and 307(b) require EPA to annually review these
effluent guidelines and pretreatment standards. This notice presents
EPA's 2007 review of existing effluent guidelines and pretreatment
standards. It also presents EPA's evaluation of indirect dischargers
without categorical pretreatment standards to identify potential new
categories for pretreatment standards under CWA sections 304(g) and
307(b). This notice also presents the Preliminary 2008 Effluent
Guidelines Program Plan (``preliminary 2008 Plan''), which, as required
under CWA section 304(m), identifies any new or existing industrial
categories selected for effluent guidelines rulemaking and provides a
schedule for such rulemaking. CWA section 304(m) requires EPA to
biennially publish such a plan after public notice and comment. EPA is
soliciting comment on its preliminary 2008 Plan and on its 2007 annual
review of existing effluent guidelines and pretreatment standards and
industrial categories not currently regulated by effluent guidelines
and pretreatment standards.

DATES: If you wish to comment on any portion of this notice, EPA must
receive your comments by December 31, 2007.

ADDRESSES: Submit your comments, data and information for the 2007
annual review of existing effluent guidelines and pretreatment
standards and the preliminary 2008 Plan, identified by Docket ID No.
EPA-HQ-OW-2006-0771, by one of the following methods:
    (1) http://www.regulations.gov. Follow the on-line instructions for

submitting comments.
    (2) E-mail<EMAIL_ADDRESS>Attention Docket ID No. EPA-HQ-OW-
2006-0771.
    (3) Mail: Water Docket, Environmental Protection Agency, Mailcode:
4203M, 1200 Pennsylvania Ave., NW., Washington, DC 20460, Attention
Docket ID No. EPA-HQ-OW-2006-0771. Please include a total of 3 copies.
    (4) Hand Delivery: Water Docket, EPA Docket Center, EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC, Attention Docket ID
No. EPA-HQ-OW-2006-0771. Such deliveries are only accepted during the
Docket's normal hours of operation and special arrangements should be
made.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2006-
0771. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
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 2008 Effluent Guidelines
Program Plan: ``Technical Support Document for the Preliminary 2008
Effluent Guidelines Program Plan,'' EPA-821R-07-007, DCN 04247, October
2007.

FOR FURTHER INFORMATION CONTACT: Mr. Carey A. Johnston at (202) 566-
1014 or<EMAIL_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 2007 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
and 307(b)
VI. EPA's 2008 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g),
and 307(b)
VII. EPA's Evaluation of Categories of Indirect Dischargers Without
Categorical Pretreatment Standards To Identify Potential New
Categories for Pretreatment Standards
VIII. The Preliminary 2008 Effluent Guidelines Program Plan Under
Section 304(m)
IX. Request for Comment and Information

I. General Information

A. Does This Action Apply to Me?

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

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

    1. Submitting Confidential Business Information. Do not submit this
information to EPA through 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 2007 review of existing effluent
guidelines and pretreatment standards under CWA sections 301(d),
304(b), 304(g) and 307(b). This notice also provides EPA's preliminary
thoughts concerning its 2008 annual reviews under CWA sections 301(d),
304(b), 304(g) and 307(b) and solicits comments, data and information
to assist EPA in performing these reviews. It also presents EPA's
evaluation of indirect dischargers without categorical pretreatment
standards to identify potential new categories for pretreatment
standards under CWA sections 304(g) and 307(b). This notice also
presents the preliminary 2008 Effluent Guidelines Program Plan
(``preliminary 2008 Plan''), which, as required under CWA section
304(m), identifies any new or existing industrial categories selected
for effluent guidelines rulemaking and provides a schedule for such
rulemaking. CWA section 304(m) requires EPA to biennially publish such
a plan after public notice and comment.

IV. Background

A. What Are Effluent Guidelines and Pretreatment Standards?

    The CWA directs EPA to promulgate effluent limitations guidelines
and standards (``effluent guidelines'') that reflect pollutant
reductions that can be achieved by categories or subcategories of
industrial point sources using technologies that represent the
appropriate level of control. See CWA sections 301(b)(2), 304(b), 306,
307(b), and 307(c). For point sources that introduce pollutants
directly into the waters of the United States (direct dischargers), the
effluent limitations guidelines and standards promulgated

by EPA are implemented through National Pollutant Discharge Elimination
System (NPDES) permits. See CWA sections 301(a), 301(b), and 402. For
sources that discharge to POTWs (indirect dischargers), EPA promulgates
pretreatment standards that apply directly to those sources and are
enforced by POTWs and State and Federal authorities. See CWA sections
307(b) and (c).
1. Best Practicable Control Technology Currently Available (BPT)--CWA
Sections 301(b)(1)(A) & 304(b)(1)
    EPA defines Best Practicable Control Technology Currently Available
(BPT) effluent limitations for conventional, toxic, and non-
conventional pollutants. Section 304(a)(4) designates the following as
conventional pollutants: Biochemical oxygen demand (BOD5),
total suspended solids, fecal coliform, pH, and any additional
pollutants defined by the Administrator as conventional. The
Administrator designated oil and grease as an additional conventional
pollutant on July 30, 1979 (44 FR 44501). EPA has identified 65
pollutants and classes of pollutants as toxic pollutants, of which 126
specific substances have been designated priority toxic pollutants. See
Appendix A to part 423. All other pollutants are considered to be non-
conventional.
    In specifying BPT, EPA looks at a number of factors. EPA first
considers the total cost of applying the control technology in relation
to the effluent reduction benefits. The Agency also considers the age
of the equipment and facilities, the processes employed, and any
required process changes, engineering aspects of the control
technologies, non-water quality environmental impacts (including energy
requirements), and such other factors as the EPA Administrator deems
appropriate. See CWA section 304(b)(1)(B). Traditionally, EPA
establishes BPT effluent limitations based on the average of the best
performance of facilities within the industry of various ages, sizes,
processes, or other common characteristics. Where existing performance
is uniformly inadequate, BPT may reflect higher levels of control than
are currently in place in an industrial category if the Agency
determines that the technology can be practically applied.
2. Best Conventional Pollutant Control Technology (BCT)--CWA Sections
301(b)(2)(E) & 304(b)(4)
    The 1977 amendments to the CWA required EPA to identify effluent
reduction levels for conventional pollutants associated with Best
Conventional Pollutant Control Technology (BCT) for discharges from
existing industrial point sources. In addition to considering the other
factors specified in section 304(b)(4)(B) to establish BCT limitations,
EPA also considers a two part ``cost-reasonableness'' test. EPA
explained its methodology for the development of BCT limitations in
1986. See 51 FR 24974 (July 9, 1986).
3. Best Available Technology Economically Achievable (BAT)--CWA
Sections 301(b)(2)(A) & 304(b)(2)
    For toxic pollutants and non-conventional pollutants, EPA
promulgates effluent guidelines based on the Best Available Technology
Economically Achievable (BAT). See CWA section 301(b)(2)(A), (C), (D)
and (F). The factors considered in assessing BAT include the cost of
achieving BAT effluent reductions, the age of equipment and facilities
involved, the process employed, potential process changes, non-water
quality environmental impacts, including energy requirements, and other
such factors as the EPA Administrator deems appropriate. See CWA
section 304(b)(2)(B). The technology must also be economically
achievable. See CWA section 301(b)(2)(A). The Agency retains
considerable discretion in assigning the weight accorded to these
factors. BAT limitations may be based on effluent reductions attainable
through changes in a facility's processes and operations. Where
existing performance is uniformly inadequate, BAT may reflect a higher
level of performance than is currently being achieved within a
particular subcategory based on technology transferred from a different
subcategory or category. BAT may be based upon process changes or
internal controls, even when these technologies are not common industry
practice.
4. New Source Performance Standards (NSPS)--CWA Section 306
    New Source Performance Standards (NSPS) reflect effluent reductions
that are achievable based on the best available demonstrated control
technology. New sources have the opportunity to install the best and
most efficient production processes and wastewater treatment
technologies. As a result, NSPS should represent the most stringent
controls attainable through the application of the best available
demonstrated control technology for all pollutants (i.e., conventional,
non-conventional, and priority pollutants). In establishing NSPS, EPA
is directed to take into consideration the cost of achieving the
effluent reduction and any non-water quality environmental impacts and
energy requirements.
5. Pretreatment Standards for Existing Sources (PSES)--CWA Section
307(b)
    Pretreatment Standards for Existing Sources (PSES) are designed to
prevent the discharge of pollutants that pass through, interfere with,
or are otherwise incompatible with the operation of publicly-owned
treatment works (POTWs), including sludge disposal methods at POTWs.
Pretreatment standards for existing sources are technology-based and
are analogous to BAT effluent limitations guidelines.
    The General Pretreatment Regulations, which set forth the framework
for the implementation of national pretreatment standards, are found at
40 CFR part 403.
6. Pretreatment Standards for New Sources (PSNS)--CWA Section 307(c)
    Like PSES, Pretreatment Standards for New Sources (PSNS) are
designed to prevent the discharges of pollutants that pass through,
interfere with, or are otherwise incompatible with the operation of
POTWs. PSNS are to be issued at the same time as NSPS. New indirect
dischargers have the opportunity to incorporate into their facilities
the best available demonstrated technologies. The Agency considers the
same factors in promulgating PSNS as it considers in promulgating NSPS.

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

1. EPA's Review and Planning Obligations Under Sections 301(d), 304(b),
and 304(m)--Direct Dischargers
    Section 304(b) requires EPA to review its existing effluent
guidelines for direct dischargers each year and to revise such
regulations ``if appropriate.'' Section 304(m) supplements the core
requirement of section 304(b) by requiring EPA to publish a plan every
two years announcing its schedule for performing this annual review and
its schedule for rulemaking for any effluent guidelines selected for
possible revision as a result of that annual review. Section 304(m)
also requires the plan to identify categories of sources discharging
non-trivial amounts of toxic or non-conventional pollutants for which
EPA has not published effluent limitations guidelines under section
304(b)(2) or NSPS under section 306. See CWA section 304(m)(1)(B); S.
Rep. No. 50, 99th Cong., 1st Sess. (1985); WQA87

Leg. Hist. 31 (indicating that section 304(m)(1)(B) applies to ``non-
trivial discharges.''). Finally, under section 304(m), the plan must
present a schedule for promulgating effluent guidelines for industrial
categories for which it has not already established such guidelines,
providing for final action on such rulemaking not later than three
years after the industrial category is identified in a final Plan.\1\
See CWA section 304(m)(1)(C). EPA is required to publish its
preliminary Plan for public comment prior to taking final action on the
plan. See CWA section 304(m)(2).
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    \1\ EPA recognizes that one court--the U.S. District Court for
the Central District of California--has found that EPA has a duty to
promulgate effluent guidelines within three years for new categories
identified in the Plan. See NRDC et al. v. EPA, 437 F.Supp.2d 1137
(C.D. Ca, 2006). However, EPA continues to believe that the
mandatory duty under section 304(m)(1)(C) is limited to providing a
schedule for taking final action in effluent guidelines rulemaking--
not necessarily promulgating effluent guidelines--within three
years, and has appealed this decision.
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    In addition, CWA section 301(d) requires EPA to review every five
years the effluent limitations required by CWA section 301(b)(2) and to
revise them if appropriate pursuant to the procedures specified in that
section. Section 301(b)(2), in turn, requires point sources to achieve
effluent limitations reflecting the application of the best available
technology economically achievable (for toxic pollutants and non-
conventional pollutants) and the best conventional pollutant control
technology (for conventional pollutants), as determined by EPA under
sections 304(b)(2) and 304(b)(4), respectively. For nearly three
decades, EPA has implemented sections 301 and 304 through the
promulgation of effluent limitations guidelines, resulting in
regulations for 56 industrial categories. See E.I. du Pont de Nemours &
Co. v. Train, 430 U.S. 113 (1977). Consequently, as part of its annual
review of effluent limitations guidelines under section 304(b), EPA is
also reviewing the effluent limitations they contain, thereby
fulfilling its obligations under sections 301(d) and 304(b)
simultaneously.
2. EPA's Review and Planning Obligations Under Sections 304(g) and
307(b)--Indirect Dischargers
    Section 307(b) requires EPA to revise its pretreatment standards
for indirect dischargers ``from time to time, as control technology,
processes, operating methods, or other alternatives change.'' See CWA
section 307(b)(2). Section 304(g) requires EPA to annually review these
pretreatment standards and revise them ``if appropriate.'' (Although
section 307(b) only requires EPA to revise existing pretreatment
standards ``from time to time,'' section 304(g) requires an annual
review. Therefore, EPA meets its 304(g) and 307(b) requirements by
reviewing all industrial categories subject to existing categorical
pretreatment standards on an annual basis to identify potential
candidates for revision.
    Section 307(b)(1) also requires EPA to promulgate pretreatment
standards for pollutants not susceptible to treatment by POTWs or that
would interfere with the operation of POTWs, although it does not
provide a timing requirement for the promulgation of such new
pretreatment standards. EPA, in its discretion, periodically evaluates
indirect dischargers not subject to categorical pretreatment standards
to identify potential candidates for new pretreatment standards. The
CWA does not require EPA to publish its review of pretreatment
standards or identification of potential new categories, although EPA
is exercising its discretion to do so in this notice.
    EPA intends to repeat this publication schedule for future
pretreatment standards reviews (e.g., EPA will publish the 2008 annual
pretreatment standards review in the notice containing the Agency's
2008 annual review of existing effluent guidelines and the final 2008
Plan). EPA intends that these contemporaneous reviews will provide
meaningful insight into EPA's effluent guidelines and pretreatment
standards program decision-making. Additionally, by providing a single
notice for these and future reviews, EPA hopes to provide a
consolidated source of information for the Agency's current and future
effluent guidelines and pretreatment standards program reviews.

V. EPA's 2007 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), and
307(b)

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

1. Overview
    In its 2007 annual review, EPA reviewed all industrial categories
subject to existing effluent limitations guidelines and pretreatment
standards, representing a total of 56 point source categories and over
450 subcategories. This review consisted of a screening level review of
all existing industrial categories based on the hazard associated with
discharges from each category and other factors identified by EPA as
appropriate for prioritizing effluent guidelines and pretreatment
standards for possible revision. EPA used this review to confirm the
identification of the four industrial categories prioritized for
further review in the final 2006 Effluent Guidelines Program Plan
(December 21, 2006; 71 FR 76644) and to list the industrial categories
currently regulated by existing effluent guidelines that cumulatively
comprise 95% of the reported hazard (reported in units of toxic-
weighted pound equivalent or TWPE).
    As reported in the final 2006 Effluent Guidelines Program Plan
(December 21, 2006; 71 FR 76644), EPA also continued or began work on
four detailed studies as part of the 2007 annual review: Steam Electric
Power Generating (Part 423), Coal Mining (Part 434), Oil and Gas
Extraction (Part 435) (only to assess whether to include coalbed
methane extraction as a new subcategory), and Hospitals (Part 460).\2\
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    \2\ Based on available information, hospitals consist mostly of
indirect dischargers for which EPA has not established pretreatment
standards. As discussed in Section VII.B, EPA is including hospitals
in its review of the Health Services Industry, a potential new
category for pretreatment standards. As part of that process, EPA
will review the existing effluent guidelines for the few direct
dischargers in the category.
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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) and 304(b) and existing
pretreatment standards for indirect dischargers under CWA sections
304(g) and 307(b).
    Based on this review and prior annual reviews, and in light of the
ongoing effluent guidelines rulemakings and detailed studies currently
in progress, EPA is not identifying any existing categories for
effluent guidelines rulemaking at this time.
2. How did EPA's 2006 annual review influence its 2007 annual review of
point source categories with existing effluent guidelines and
pretreatment standards?
    In view of the annual nature of its reviews of existing effluent
guidelines and pretreatment standards, EPA believes that each annual
review can and should influence succeeding annual reviews, e.g., by
indicating data gaps, identifying new pollutants or pollution reduction
technologies, or otherwise highlighting industrial categories for
additional scrutiny in subsequent years. For example, during its 2005
and 2006

annual reviews EPA started a detailed study of the Steam Electric Power
Generating (Part 423) category. At the conclusion of the 2006 annual
review EPA indicated that it would continue the detailed study of the
Steam Electric Power Generating (Part 423) category and begin detailed
studies for the following three industrial categories: Coal Mining
(Part 434), Oil and Gas Extraction (Part 435) (only to assess whether
to include coalbed methane extraction as a new subcategory); and
Hospitals (Part 460) (which is part of the Health Services Industry
detailed study). In addition, EPA identified two other industrial
categories, Ore Mining and Dressing (Part 440) and Textile Mills (Part
410), at the conclusion of the 2006 annual review as candidates for
``preliminary category reviews'' in the 2007 review based on the toxic
discharges reported to the Toxics Release Inventory (TRI) and Permit
Compliance System (PCS). These are categories for which EPA lacks
sufficient data to determine whether revision would be appropriate and
for which EPA is performing a further assessment of pollutant
discharges before starting a detailed study. This assessment provides
an additional level of quality assurance on the reported pollutant
discharges and number of facilities that represent the majority of
toxic-weighted pollutant discharges. EPA published the findings from
its 2006 annual review with its final 2006 Plan (December 21, 2006; 71
FR 76644), making the data collected available for public comment.
Docket No. EPA-HQ-OW-2004-0032. EPA used the findings, data and
comments on the 2006 annual review to inform its 2007 annual review.
The 2007 review also built on the previous reviews by continuing to use
the screening methodology, incorporating some refinements to assigning
discharges to categories and updating toxic weighting factors used to
estimate potential hazards of toxic pollutant discharges.
3. What actions did EPA take in performing its 2007 annual reviews of
existing effluent guidelines and pretreatment standards?
a. Screening-Level Review
    The first component of EPA's 2007 annual review consisted of a
screening-level review of all industrial categories subject to existing
effluent guidelines or pretreatment standards. As a starting point for
this review, EPA examined screening-level data from its 2007 annual
reviews. In its 2007 annual reviews, EPA focused its efforts on
collecting and analyzing data to identify industrial categories whose
pollutant discharges potentially pose the greatest hazard to human
health or the environment because of their toxicity (i.e., highest
estimates of toxic-weighted pollutant discharges). In particular, EPA
ranked point source categories according to their discharges of toxic
and non-conventional pollutants (reported in units of toxic-weighted
pound equivalent or TWPE), based primarily on data from TRI and PCS.
EPA calculated the TWPE using pollutant-specific toxic weighting
factors (TWFs). Where data are available, these TWFs reflect both
aquatic life and human health effects. For each facility that reports
to TRI or PCS, EPA multiplies the pounds of discharged pollutants by
pollutant-specific TWFs. This calculation results in an estimate of the
discharged toxic-weighted pound equivalents, which EPA then uses as its
estimate of the hazard posed by these toxic and non-conventional
pollutant discharges to human health or the environment. For the 2007
annual reviews, EPA used the most recent PCS and TRI data (2004). The
full description of EPA's methodology for the 2007 screening-level
review is presented in the Technical Support Document (TSD) for the
preliminary 2008 Plan (see DCN 04247) and in the Docket (see EPA-HQ-OW-
2006-0771) accompanying this notice.
    EPA is continuously investigating and solicits comment on how to
improve its analyses. In particular, EPA recently conducted a peer
review of the TWF methodology and the Agency's use of TWFs in effluent
guidelines program planning. An independent panel of scientific experts
was asked to provide comment on the appropriateness of the TWF
calculations and the quality and hierarchy of the data used in
developing individual TWFs. EPA is currently in the process of
reviewing and responding to the peer reviewer's comments. EPA is also
in the process of updating the following document, Draft Toxic
Weighting Factor Development in Support of CWA 304(m) Planning Process,
EPA-HQ-OW-2004-0032-1634, to address some of the peer reviewers
concerns. EPA plans to release the peer review report with the Agency's
response as soon as it's completed, but no later than when the final
2008 304(m) Plan is released. EPA also is exploring how best to
communicate the uncertainty inherent with incomplete data regarding
individual TWFs. EPA will continue to update individual TWFs as new
information becomes available.
    EPA also developed a quality assurance project plan (QAPP) for its
use of TRI and PCS data in the 2007 annual review to document the type
and quality of data needed to make the decisions in this annual review
and to describe the methods for collecting and assessing those data
(see DCN 04422). EPA used the following document to develop the QAPP
for this annual review: ``EPA Requirements for QA Project Plans (QA/R-
5), EPA-240-B01-003.'' Using the QAPP as a guide, EPA performed
extensive quality assurance checks on the data used to develop
estimates of toxic-weighted pollutant discharges (i.e., verifying 2004
discharge data reported to TRI and PCS) to determine if any of the
pollutant discharge estimates relied on incorrect or suspect data. For
example, EPA contacted facilities and permit writers to confirm and, as
necessary, correct TRI and PCS data for facilities that EPA had
identified in its screening-level review as the significant dischargers
of nutrients and of toxic and non-conventional pollution.
    Based on this methodology, EPA prioritized for potential revision
industrial categories that offered the greatest potential for reducing
hazard to human health and the environment. EPA assigned those
categories with the lowest estimates of toxic-weighted pollutant
discharges a lower priority for revision (i.e., industrial categories
marked ``(3)'' in the ``Findings'' column in Table V-1 in section V.B.4
of today's notice).
    In order to further focus its inquiry during the 2007 annual
review, EPA assigned a lower priority for potential revision to
categories for which effluent guidelines had been recently promulgated
or revised, or for which effluent guidelines rulemaking was currently
underway (i.e., industrial categories marked ``(1)'' in the
``Findings'' column in Table V-1 in section V.B.4 of today's notice).
For example, EPA excluded facilities that are associated with the
Chlorine and Chlorinated Hydrocarbon (CCH) Manufacturing effluent
guidelines rulemaking (formerly known as the ``Vinyl Chloride and
Chlor-Alkali Manufacturing'' effluent guidelines rulemaking) currently
underway from its 2006 hazard assessment of the Organic Chemicals,
Plastics, and Synthetic Fibers (OCPSF) and Inorganic Chemicals point
source categories to which CCH facilities belong.
    Additionally, EPA applied less scrutiny to industrial categories
for which EPA had promulgated effluent guidelines or pretreatment
standards within the past seven years. EPA chose

seven years because this is the time it customarily takes for the
effects of effluent guidelines or pretreatment standards to be fully
reflected in pollutant loading data and TRI reports (in large part
because effluent limitations guidelines are often incorporated into
NPDES permits only upon re-issuance, which could be up to five years
after the effluent guidelines or pretreatment standards are
promulgated). Because there are 56 point source categories (including
over 450 subcategories) with existing effluent guidelines and
pretreatment standards that must be reviewed annually, EPA believes it
is important to prioritize its review so as to focus on industries
where changes to the existing effluent guidelines or pretreatment
standards are most likely to be needed. In general, industries for
which effluent guidelines or pretreatment standards have recently been
promulgated are less likely to warrant such changes. However, in cases
where EPA becomes aware of the growth of a new industrial activity
within a category for which EPA has recently revised effluent
guidelines or pretreatment standards, or where new concerns are
identified for previously unevaluated pollutants discharged by
facilities within the industrial category, EPA would apply more
scrutiny to the category in a subsequent review. EPA identified no such
instance during the 2007 annual review.
    EPA also applied a lower priority for potential revision at this
time to categories for which EPA lacked sufficient data to determine
whether revision would be appropriate. For industrial categories marked
``(5)'' in the ``Findings'' column in Table V-1 in section V.B.4 of
today's notice, EPA lacks sufficient information at this time on the
magnitude of the toxic-weighted pollutant discharges associated with
these categories. EPA will seek additional information on the
discharges from these categories in the next annual review in order to
determine whether a detailed study is warranted. EPA typically performs
a further assessment of the pollutant discharges before starting a
detailed study of an industrial category. This assessment
(``preliminary category review'') provides an additional level of
quality assurance on the reported pollutant discharges and number of
facilities that represent the majority of toxic-weighted pollutant
discharges. See the appropriate section in the TSD for the preliminary
2008 Plan (DCN 04247) for EPA's data needs for these industrial
categories.
    For industrial categories marked ``(4)'' in the ``Findings'' column
in Table V-1 in section V.B.4 of today's notice, EPA had sufficient
information on the toxic-weighted pollutant discharges associated with
these categories to start or continue a detailed study of these
industrial categories in the 2007 annual review. EPA intends to use the
detailed study to obtain information on hazard, availability and cost
of technology options, and other factors in order to determine if it
would be appropriate to identify the category for possible effluent
guidelines revision. In the 2007 annual review, EPA began or continued
detailed studies of four such categories.
    As part of its 2007 annual review, EPA also considered the number
of facilities responsible for the majority of the estimated toxic-
weighted pollutant discharges associated with an industrial activity.
Where only a few facilities in a category accounted for the vast
majority of toxic-weighted pollutant discharges (i.e., categories
marked ``(2)'' in the ``Findings'' column in Table V-1 in section V.B.4
of today's notice), EPA applied a lower priority for potential
revision. EPA believes that revision of individual permits for such
facilities may be more effective than a revised national effluent
guidelines rulemaking. Individual permit requirements can be better
tailored to these few facilities and may take considerably less time
and resources to establish than a national effluent guidelines
rulemaking. The Docket accompanying this notice lists facilities that
account for the vast majority of the estimated toxic-weighted pollutant
discharges for particular categories (see DCN 04247). For these
facilities, EPA will consider identifying pollutant control and
pollution prevention technologies that will assist permit writers in
developing facility-specific, technology-based effluent limitations on
a best professional judgment (BPJ) basis. For example, EPA developed
and distributed a 2007 technical document to NPDES permit writers in
order to support the development of effluent limitations for facilities
in the dissolving kraft (Subpart A) and dissolving sulfite (Subpart D)
subcategories of the pulp and paper point source category (40 CFR Part
430) (see DCN 04167). As of the beginning of 2006, there were four
affected facilities in these two subcategories, two in Florida and one
each in Georgia and Washington. EPA indicated in the final 2006 Plan
(see December 21, 2006; 71 FR 76651-76652) that it would provide
support to permit writers in establishing facility-specific effluent
limits for these subcategories based on their Best Professional
Judgment (BPJ) in lieu of finalizing its 1993 effluent guidelines
rulemaking (see December 17, 1993; 58 FR 44078). In future annual
reviews, EPA also intends to re-evaluate each category based on the
information available at the time in order to evaluate the
effectiveness of the BPJ permit-based support.
    EPA received comments in previous biennial planning cycles urging
the Agency to encourage and recognize voluntary efforts by industry to
reduce pollutant discharges, especially when the voluntary efforts have
been widely adopted within an industry and the associated pollutant
reductions have been significant. EPA agrees that industrial categories
demonstrating significant progress through voluntary efforts to reduce
hazard to human health or the environment associated with their
effluent discharges would be a comparatively lower priority for
effluent guidelines or pretreatment standards revision, particularly
where such reductions are achieved by a significant majority of
individual facilities in the industry. Although during this annual
review EPA could not complete a systematic review of voluntary
pollutant loading reductions, EPA's review did indirectly account for
the effects of successful voluntary programs because any significant
reductions in pollutant discharges should be reflected in discharge
monitoring and TRI data, as well as any data provided directly by
commenters, that EPA used to assess the toxic-weighted pollutant
discharges.
    As was the case in previous annual reviews, EPA was unable to
gather the data needed to perform a comprehensive screening-level
analysis of the availability of treatment or process technologies to
reduce toxic pollutant wastewater discharges beyond the performance of
technologies already in place for all of the 56 existing industrial
categories. However, EPA believes that its analysis of hazard is useful
for assessing the effectiveness of existing technologies because it
focuses on the amount and significance of pollutants that are still
discharged following existing treatment. Therefore, by assessing the
hazard associated with discharges from all existing categories in its
screening-level review, EPA was indirectly able to assess the
possibility that further significant reductions could be achieved
through new pollution control technologies for these categories. In
addition, EPA directly assessed the availability of technologies for
certain industries that were prioritized for a more in-depth review as
a result of the screening level analysis. See DCN 04247.

    Similarly, EPA could not identify a suitable screening-level tool
for comprehensively evaluating the affordability of treatment or
process technologies because the universe of facilities is too broad
and complex. EPA could not find a reasonable way to prioritize the
industrial categories based on readily available economic data. In the
past, EPA has gathered information regarding technologies and economic
achievability through detailed questionnaires distributed to hundreds
of facilities within a category or subcategory for which EPA has
commenced rulemaking. Such information-gathering is subject to the
requirements of the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, et
seq. The information acquired in this way is valuable to EPA in its
rulemaking efforts, but the process of gathering, validating and
analyzing the data can consume considerable time and resources. EPA
does not think it appropriate to conduct this level of analysis for all
point source categories in conducting an annual review. Rather, EPA
believes it is appropriate to set priorities based on hazard and other
screening-level factors identified above, and to directly consider the
availability and affordability of technology only in conducting the
more in-depth reviews of prioritized categories. For these prioritized
categories, EPA may conduct surveys or other PRA-governed data
collection activities in order to better inform the decision on whether
effluent guidelines are warranted. Additionally, EPA is working to
develop tools for directly assessing technological and economic
achievability as part of the screening-level review in future annual
reviews under section 301(d), 304(b), and 307(b) (see EPA-HQ-OW-2004-
0032-2344). EPA solicits comment on how to best identify and use
screening-level tools for assessing technological and economic
achievability on an industry-specific basis as part of future annual
reviews.
    In summary, through its screening level review, EPA focused on
those point source categories that appeared to offer the greatest
potential for reducing hazard to human health or the environment, while
assigning a lower priority to categories that the Agency believes are
not good candidates for effluent guidelines or pretreatment standards
revision at this time. This enabled EPA to concentrate its resources on
conducting more in-depth reviews of certain industries prioritized as a
result of the screening level analysis, as discussed below (see section
V.A.3.b and c).
b. Further Review of Prioritized Categories
    In the publication of the final 2006 Plan EPA identified two
additional categories with potentially high TWPE discharge estimates
for further investigation (``preliminary category review'') in the 2007
annual review: Ore Mining and Dressing (Part 440) and Textile Mills
(Part 410) (i.e., EPA identified these categories with ``(5)'' in the
column entitled ``Findings'' in Table V-1, Page 76657 of the final 2006
Plan). From its 2007 annual review, EPA is identifying the Centralized
Waste Treatment (Part 437) and Waste Combustors (Part 444) categories
for preliminary category reviews in the 2008 annual review.
    In conducting these preliminary category reviews EPA uses the same
types of data sources used for the detailed studies but in less depth.
EPA typically performs a further assessment of the pollutant discharges
before starting a detailed study of an industrial category. This
assessment provides an additional level of quality assurance on the
reported pollutant discharges and number of facilities that represent
the majority of toxic-weighted pollutant discharges. EPA may also
develop a preliminary list of potential wastewater pollutant control
technologies before conducting a detailed study. EPA is not conducting
a detailed study for these categories at this time because EPA needs
additional information regarding these industries to determine whether
a detailed study is warranted.
c. Detailed Study of Four Categories
    In addition to conducting a screening-level review of all existing
categories, EPA started or continued detailed studies of four
categories: Steam Electric Power Generating (Part 423), Coal Mining
(Part 434), Oil and Gas Extraction (Part 435) (only to assess whether
to include coalbed methane extraction as a new subcategory), and
Hospitals (Part 460) (which is part of the Health Services Industry
detailed study). For these industries, EPA gathered and analyzed
additional data on pollutant discharges, economic factors, and
technology issues during its 2007 annual review. EPA examined: (1)
Wastewater characteristics and pollutant sources; (2) the pollutants
discharged from these sources and the toxic weights associated with
these discharges; (3) treatment technology and pollution prevention
information; (4) the geographic distribution of facilities in the
industry; (5) any pollutant discharge trends within the industry; and
(6) any relevant economic factors.
    EPA is relying on many different sources of data including: (1) The
2002 U.S. Economic Census; (2) TRI and PCS data; (3) contacts with
reporting facilities to verify reported releases and facility
categorization; (4) contacts with regulatory authorities (states and
EPA regions) to understand how category facilities are permitted; (5)
NPDES permits and their supporting fact sheets; (6) monitoring data
included in facility applications for NPDES permit renewals (Form 2C
data); (7) EPA effluent guidelines technical development documents; (8)
relevant EPA preliminary data summaries or study reports; (9) technical
literature on pollutant sources and control technologies; (10)
information provided by industry including industry conducted survey
and sampling data; and (11) stakeholder comments (see DCN 04247).
Additionally, in order to evaluate available and affordable treatment
technology options for the coalbed methane extraction industry sector,
EPA intends to submit an Information Collection Request (ICR) to the
Office of Management and Budget (OMB) for its review and approval prior
to publication of the final 2008 Plan.
d. Public Comments
    EPA's annual review process considers information provided by
stakeholders regarding the need for new or revised effluent limitations
guidelines and pretreatment standards. To that end, EPA established a
docket for its 2007 annual review at the time of publication of the
final 2006 Plan to provide the public with an opportunity to submit
additional information to assist the Agency in its 2007 annual review.
These public comments are in the supporting docket (EPA-HQ-OW-2006-
0771, http://www.regulations.gov) and summarized in the TSD for the

preliminary 2008 Plan (see DCN 04247).

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

1. Screening-Level Review
    In its 2007 screening level review, EPA considered hazard--and the
other factors described in section A.3.a. above--in prioritizing
effluent guidelines for potential revision. See Table V-1 in section
V.B.4 of today's notice for a summary of EPA's findings with respect to
each existing category; see also the TSD for the preliminary 2008 Plan
(``TSD''). Out of the categories subject only to the screening level
review in 2007, EPA is not identifying any for effluent guidelines
rulemaking

at this time, based on the factors described in section A.3.a above and
in light of the effluent guidelines rulemakings and detailed studies in
progress.
    In the 2007 annual review EPA listed the industrial categories
currently regulated by existing effluent guidelines that cumulatively
comprise 95% of the reported hazard (reported in units of toxic-
weighted pound equivalent or TWPE). The TSD presents a summary of EPA's
review of these eleven industrial categories (see DCN 04247).
2. Detailed Studies
    In its 2007 annual review, EPA started or continued detailed
studies of four industrial point source categories with existing
effluent guidelines and pretreatment standards: Steam Electric Power
Generating (Part 423), Coal Mining (Part 434), and Oil and Gas
Extraction (Part 435) (only to assess whether to include coalbed
methane extraction as a new subcategory), and Hospitals (Part 460)
(which is part of the Health Services Industry detailed study). EPA is
investigating whether the pollutant discharges reported to TRI and PCS
for 2004 accurately reflect the current discharges of the industry. EPA
is also analyzing the reported pollutant discharges, and technology
innovation and process changes in these industrial categories.
Additionally, EPA is considering whether there are industrial
activities not currently subject to effluent guidelines or pretreatment
standards that should be included with these existing categories,
either as part of existing subcategories or as potential new
subcategories. EPA will use these detailed studies to determine whether
EPA should identify in the final 2008 Plan (or a future Plan) any of
these industrial categories for possible revision of their existing
effluent guidelines and pretreatment standards. EPA's reviews of three
of these four categories are described below and its review of
hospitals is described in section VII.B (Health Services Industry
detailed study).
a. Steam Electric Power Generating (Part 423)
    The Steam Electric Power Generating effluent guidelines (40 CFR
423) apply to a subset of the electric power industry, namely those
facilities ``primarily engaged in the generation of electricity for
distribution and sale which results primarily from a process utilizing
fossil-type fuel (coal, oil, or gas) or nuclear fuel in conjunction
with a thermal cycle employing the steam water system as the
thermodynamic medium.'' See 40 CFR 423.10. EPA's most recent revisions
to the effluent guidelines and standards for this category were
promulgated in 1982 (see November 19, 1982; 47 FR 52290).
    EPA previously found that facilities in the Steam Electric Power
Generating point source category collectively discharge relatively high
amounts of toxic pollutants (as measured in toxic-weighted pound
equivalents (TWPE)). See Tables 5-3 and 5-4 of the TSD for the final
2006 Plan, EPA-HQ-OW-2004-0032-2782, and Section <IP_ADDRESS> of the TSD for
the final 2004 Plan, EPA-HQ-OW-2003-0074-1346 through 1351. The 2007
annual review again identified this category as the second-largest
discharger of toxic pollutants (see DCN 04247). EPA also determined
that PCS and TRI data provide an incomplete picture of the wastewaters
generated by the regulated steam electric industry. For example, EPA
anticipates greater amounts of nitrogen compounds, selenium, and other
metals, most of which are not regulated by the effluent guidelines, and
therefore, may not be reported to TRI or PCS, in steam electric
wastewaters as a result of the increasing use of air pollution controls
(see Interim Detailed Study Report for the Steam Electric Power
Generating Point Source Category, November 2006, EPA-HQ-OW-2004-0032-
2781). Consequently, EPA focused on supplementing its review of PCS and
TRI data for this category with additional data collection as described
below and in the supporting docket (see DCN 04247).
    The detailed study for the Steam Electric Power Generating point
source category is mainly focused on: (1) Characterizing the mass and
concentrations of pollutants in wastewater discharges from coal-fired
steam electric facilities; and (2) identifying the pollutants that
comprise a significant portion of the category's TWPE discharge
estimate and the corresponding industrial operation. Waste streams of
particular interest include cooling water, fly ash and bottom ash
wastes, coal pile runoff, and discharges from wet air pollution control
devices [e.g., wet flue gas desulfurization (FGD)]. EPA's previous
annual reviews have identified that: (1) The TWPE discharge estimate
for this category is predominantly driven by the metals present in
wastewater discharges; and (2) the waste streams contributing the
majority of these metals are associated with ash handling and wet FGD
systems (see EPA-HQ-OW-2004-0032-2781). Other potential sources of
metals include coal pile runoff, metal/chemical cleaning wastes, coal
washing, and certain low volume wastes. EPA is collecting data for the
detailed study through facility inspections, wastewater sampling, a
data request that was sent to a limited number of companies, and
various secondary data sources (see DCN 04711).
    EPA is conducting wastewater sampling of ash ponds and FGD
wastewater treatment systems at several steam electric facilities.
Samples collected are being analyzed for metals and classical
pollutants, such as total suspended solids and nitrogen. EPA selected
the plants for sampling based on characteristics and process
configurations of interest. Factors taken into consideration include
the type of fuel, type of wet FGD systems in operation, fly ash
handling practices, nitrogen oxides (NOX) controls (e.g.,
selective catalytic reduction systems), and wastewater treatment
technologies. See the following document for information about the
sample collection methodologies, analytes of interest, and laboratory
analytical methods: ``Generic Sampling and Analysis Plan for Coal-Fired
Steam Electric Power Plants,'' DCN 04296.
    EPA also collected facility specific information using a data
request conducted under authority of CWA section 308 (see DCN 04711).
EPA sent this data request to nine companies that operate a number of
coal-fired power plants with wet FGD systems. The data request
complements the wastewater sampling effort as it collects facility-
specific information about wastewaters EPA is not sampling.
Additionally, the data request collects detailed information about
wastewater generation rates and management practices for wastewaters
included in EPA's sampling program. The data request seeks information
on selected wastewater sources, air pollution controls, wastewater
management and treatment practices, water reuse/recycle, and treatment
system capital and operating costs.
b. Coal Mining (Part 434)
    As discussed in the ``Notice of Availability of Final 2006 Effluent
Guidelines Program Plan'' EPA is conducting a detailed study during the
2007 and 2008 annual reviews to evaluate the merits of comments by
states, industry, and a public interest group that urged revisions to
pollutant limitations in the Coal Mining effluent guidelines (40 CFR
Part 434) (see December 21, 2006; 71 FR 76644-76667). The Interstate
Mining Compact Commission, which represents mining agencies in 35
states, together with a few individual state agencies, and a few

mining companies, asked EPA to remove the current manganese limitations
and allow permittees to employ best management practices as necessary
to reduce manganese discharges based on the quality of receiving
waterbodies.
    The public interest group, the Environmental Law and Policy Center,
asked EPA to place greater controls on coal mining discharges of
sulfates, chlorides, mercury, cadmium, manganese, selenium, and other
unspecified pollutants.
    State and industry commentors cited the following factors in
support of their comments: (1) New, more stringent coal mining
reclamation bonding requirements on post-closure discharges; (2)
evidence that current manganese limitations are more stringent than
necessary to protect aquatic life; (3) perception that high cost of
manganese treatment is causing permittees to default on their post-
closure bonds; and (4) perception that treatment with chemical addition
may complicate permit compliance, especially after a mine is closed.
The public interest group referenced a study by EPA Region 5 on
potential adverse impacts of the discharge of sulfates on aquatic life
(see DCN 2487).
    EPA initiated the Coal Mining Detailed Study in January 2007. The
study follows the framework presented in the Detailed Study Plan, a
draft of which the Agency placed into the docket (see DCN 2488) during
the Fall of 2006. EPA revised and finalized the Detailed Study Plan in
April 2007 to reflect public comments. The study will evaluate
treatment technologies, costs, and pollutant discharge loads, as well
as the effects of manganese and other pollutants on aquatic life. The
study will also address the question of whether bonds are being
forfeited because of the cost of manganese treatment by examining
bonding and trust fund requirements, past bond forfeiture rates, future
potential bond forfeiture rates, and the issues related to state
assumption of long-term water treatment responsibilities for mines
where the bonds have been forfeited. As outlined in the Detailed Study
Plan, EPA has framed study questions based on public comment,
identified data sources to help answer the study questions, developed a
methodology for estimating treatment costs and discharge loads, and
initiated data collection activities with the Interstate Mining Compact
Commission, state agencies, and the Office of Surface Mining,
Reclamation, and Enforcement within the U.S. Department of the
Interior.
    The Coal Mining Detailed Study consists of several interim products
which will be summarized in the 2008 final report: An industry
financial profile which will include information about the types and
locations of mines, ownership, and revenues; a summary of state and
federal permitting requirements; a summary of bonding and trust fund
requirements for control of water discharges from post-mining sites; an
analysis of bond forfeiture and the consequences for the states; an
analysis of treatment technologies, costs, and pollutant discharge
loads; and an environmental summary of the aquatic life effects of
manganese and other pollutants.
    During 2007, EPA plans to complete data collection, complete the
industry financial profile, begin analysis of bonding and trust fund
issues, and begin analysis of treatment costs and discharge loads.
During 2008, EPA will complete analysis of bonding and trust fund
issues, complete estimates of treatment costs and discharge loads,
complete its analysis of bond defaults, complete the summary of
environmental impacts, and complete the final report.
    EPA will use the results of the Coal Mining Detailed Study, which
will be summarized in the 2008 annual review, to help decide
appropriate regulatory steps.
c. Oil and Gas Extraction (Part 435) (Only To Assess Whether To Include
Coalbed Methane Extraction as a New Subcategory)
    As discussed in the 2006 annual review, EPA is conducting a
detailed study of the coalbed methane industry to determine whether to
revise the effluent guidelines for the Oil and Gas Extraction category
to include limits for this potential new subcategory (see December 21,
2006; 71 FR 76656). The coalbed methane (CBM) industrial sector is an
important part of the Nation's domestic source of natural gas. In 2004,
CBM accounted for about 10.4% of the total U.S. natural gas production
and is expanding in multiple basins across the Nation. Currently, the
Department of Energy's Energy Information Administration (EIA) expects
CBM production to remain an important source of domestic natural gas
over the next few decades. Based on Bureau of Land Management (BLM) and
States' projections this will likely involve over 100,000 CBM wells.
The growth in the CBM industrial sector can be explained by the
decrease in drilling and transmission costs in getting the CBM to
market, clarity of gas ownership, and the increase of long-term natural
gas prices. See Section 6 of the TSD for the final 2006 Plan, EPA-HQ-
OW-2004-0032-2782, December 2006. EPA identified the CBM extraction
industry as a potential new subcategory of the Oil and Gas Extraction
category (40 CFR 435) in the 2006 annual review (see December 21, 2006;
71 FR 76656).
    Coalbed methane (CBM) extraction requires removal of large amounts
of water from underground coal seams before CBM can be released. CBM
wells have a distinctive production history characterized by an early
stage when large amounts of water are produced to reduce reservoir
pressure which in turn encourages release of gas; a stable stage when
quantities of produced gas increase as the quantities of produced water
decrease; and a late stage when the amount of gas produced declines and
water production remains low (see EPA-HQ-OW-2004-0032-1904). The
quantity and quality of water that is produced in association with CBM
development will vary from basin to basin, within a particular basin,
from coal seam to coal seam, and over the lifetime of a CBM well.
    Pollutants often found in these wastewaters include chloride,
sodium, sulfate, bicarbonate, fluoride, iron, barium, magnesium,
ammonia, and arsenic. Total dissolved solids (TDS) and electrical
conductivity (EC) are bulk parameters used for quantifying the total
amount of dissolved solids in a wastewater and that may also be used to
quantify and control the amount of pollutants in CBM produced waters.
Equally important in preventing environmental damage is controlling the
sodicity of the CBM produced waters. Sodicity is often quantified as
the sodium adsorption ratio (SAR), which is expressed as the ratio of
sodium ions to calcium and magnesium ions, and is an important factor
in controlling the produced water's suitability for irrigation and its
potential for degrading soils. All of these parameters can potentially
affect environmental impacts as well as potential beneficial uses of
CBM produced water.
    Impacts to surface water from discharges of CBM produced waters can
be severe depending upon the quality of the CBM produced waters. Saline
discharges have variable effects depending on the biology of the
receiving stream. Some waterbodies and watersheds may be able to absorb
the discharged water while others are sensitive to large amounts of
low-quality CBM water. For example, large surface waters with
sufficient dilution capacity or marine waters are less sensitive to
saline discharges than smaller freshwater surface waters. Discharge of

these CBM produced waters may also cause erosion and in some cases
irreversible soil damage from elevated TDS concentrations and SAR
values. This may limit future agricultural and livestock uses of the
water and watershed.
    Currently, regulatory controls for CBM produced waters vary from
State to State and permit to permit (see EPA-HQ-OW-2004-0032-2782,
2540). There is very limited permit information (e.g., effluent limits,
restrictions) in PCS and TRI for this industrial sector. Consequently,
EPA is gathering additional information from State NPDES permit
programs and industry on the current regulatory controls across the
different CBM basins.
    EPA indicated in the 2006 annual review that it will need to gather
more specific information as part of a detailed review of the coalbed
methane industry in order to determine whether it would be appropriate
to conduct a rulemaking to potentially revise the effluent guidelines
for the Oil and Gas Extraction category to include limits for CBM. In
particular, EPA will need to collect technical, economic, and
environmental data from a wide range of CBM operations (e.g.,
geographical differences in the characteristics of CBM-produced waters,
current regulatory controls, potential environmental impacts,
availability and affordability of treatment technology options).
Accordingly, EPA intends to submit an Information Collection Request
(ICR) to the Office of Management and Budget (OMB) for its review and
approval under the Paperwork Reduction Act (PRA), 33 U.S.C. 3501, et
seq. EPA is working with stakeholders in the design of this industry
survey (see DCN 04247). EPA solicits comment on the potential scope and
methodology of this ICR. See section IX.C for a list of questions that
EPA will use to develop the ICR. EPA expects to distribute the ICR in
late summer of 2008.
    EPA is also collecting discharge related information from five site
visit trips to support this detailed study (see DCN 04247), and
collecting data from other secondary sources to supplement its current
understanding of the CBM industrial sector. EPA is specifically
gathering data on available and affordable beneficial use and treatment
technology options, and potential impacts of CBM produced water
discharges. A summary of the data collected for this detailed study is
provided in the TSD for the 2007 annual review.
3. Results of Preliminary Category Reviews
    During the 2006 annual review, EPA identified two categories with
potentially high TWPE discharge estimates for preliminary category
review: Ore Mining and Dressing (Part 440) and Textile Mills (Part 410)
(i.e., EPA identified these categories with ``(5)'' in the column
entitled ``Findings'' in Table V-1, Page 76657 of the final 2006 Plan).
EPA concluded its preliminary category review of the Textile Mills
category in the 2007 annual review and has determined that the Textile
Mills category is not among those industrial categories currently
regulated by existing effluent guidelines that cumulatively comprise
95% of the reported hazard (reported in units of toxic-weighted pound
equivalent or TWPE) (see DCN 04247). As such, it has a low priority for
effluent guideline revision at this time. EPA has yet to complete its
preliminary category review of the Ore Mining and Dressing category.
Section IX of this notice and the TSD lists the data and information
that EPA would like to collect on the pollutant discharges and
potential treatment technology options for the Ore Mining and Dressing
category in order to complete this preliminary category review.
    Additionally and as noted above, EPA identified two additional
categories for preliminary category review as a result of the 2007
annual review: Centralized Waste Treatment (Part 437) and Waste
Combustors (Part 444). EPA applied less scrutiny to these categories in
the 2002, 2004, and 2006 biennial planning cycles as EPA effluent
guidelines and pretreatment standards for these categories were
promulgated in 2000. As discussed in section V.A.3.a, EPA generally
applies less scrutiny to industrial categories for which EPA has
promulgated effluent guidelines or pretreatment standards within the
past seven years of the current biennial review. However, because this
seven year period has elapsed and because of the relative high hazard
ranking of these categories, EPA plans to conduct a preliminary
category review of both categories in its 2008 annual review. Section
IX and the TSD list data and information that EPA would like to collect
on the pollutant discharges and potential treatment technology options
for these two categories in order to complete these preliminary
category reviews.
    EPA is not identifying any of these three categories (Ore Mining
and Dressing, Centralized Waste Treatment, and Waste Combustors) for an
effluent guidelines rulemaking in this preliminary 2008 Plan. However,
EPA is identifying these categories for new or on-going preliminary
category reviews in the 2008 annual review (i.e., these categories are
marked with ``(5)'' in the ``Findings'' column in Table V-1 in section
V.B.4 of today's notice). The docket accompanying this notice presents
a summary of EPA's findings on these three industrial categories (see
DCN 04247).
4. Summary of 2007 Annual Review Findings
    In its 2007 annual review, EPA reviewed all categories subject to
existing effluent guidelines and pretreatment standards in order to
identify appropriate candidates for revision. Based on this review, and
in light of effluent guidelines rulemakings and detailed studies
currently in progress, EPA is not identifying any existing categories
for effluent guidelines rulemaking. EPA is, however, conducting
detailed studies for four existing categories: Steam Electric Power
Generating, Coal Mining, Oil and Gas Extraction (only with respect to
coalbed methane), and Hospitals (part of the Health Services Industry
detailed study).
    A summary of the findings of the 2007 annual review is presented
below in Table V-1. This table uses the following codes to describe the
Agency(s findings with respect to each existing industrial category.
    (1) Effluent guidelines or pretreatment standards for this
industrial category were recently revised or reviewed through an
effluent guidelines rulemaking, or a rulemaking is currently underway.
    (2) Revising the national effluent guidelines or pretreatment
standards is not the best tool for this industrial category because
most of the toxic and non-conventional pollutant discharges are from
one or a few facilities in this industrial category. EPA will consider
assisting permitting authorities in identifying pollutant control and
pollution prevention technologies for the development of technology-
based effluent limitations by best professional judgment (BPJ) on a
facility-specific basis.
    (3) Not identified as a hazard priority based on data available at
this time (e.g., not among industries that cumulatively comprise 95% of
reported hazard in TWPE units).
    (4) EPA intends to continue a detailed study of this industry in
its 2008 annual review to determine whether to identify the category
for effluent guidelines rulemaking.

    (5) EPA is continuing or initiating a preliminary category review
because incomplete data are available to determine whether to conduct a
detailed study or identify for possible revision. EPA typically
performs a further assessment of the pollutant discharges before
starting a detailed study of the industrial category. This assessment
provides an additional level of quality assurance on the reported
pollutant discharges and number of facilities that represent the
majority of toxic-weighted pollutant discharges. EPA may also develop a
preliminary list of potential wastewater pollutant control technologies
before conducting a detailed study. See the appropriate section in the
TSD (DCN 04247) for EPA's data needs for industries in this category.

  Table V-1.--Findings From the 2007 Annual Review of Effluent Guidelines and Pretreatment Standards Conducted
                                Under Section 301(d), 304(b), 304(g), and 307(b)
----------------------------------------------------------------------------------------------------------------
                                                 Industry category (listed
                    No.                               alphabetically)             40 CFR Part   Findings[dagger]
----------------------------------------------------------------------------------------------------------------
1.........................................  Aluminum Forming..................             467              (3)
2.........................................  Asbestos Manufacturing............             427              (3)
3.........................................  Battery Manufacturing.............             461              (3)
4.........................................  Canned and Preserved Fruits and                407              (3)
                                             Vegetable Processing.
5.........................................  Canned and Preserved Seafood                   408              (3)
                                             Processing.
6.........................................  Carbon Black Manufacturing........             458              (3)
7.........................................  Cement Manufacturing..............             411              (3)
8.........................................  Centralized Waste Treatment.......             437              (5)
9.........................................  Coal Mining[Dagger]...............             434      (1) and (4)
10........................................  Coil Coating......................             465              (3)
11........................................  Concentrated Animal Feeding                    412              (1)
                                             Operations (CAFO).
12........................................  Concentrated Aquatic Animal                    451              (1)
                                             Production.
13........................................  Copper Forming....................             468              (3)
14........................................  Dairy Products Processing.........             405              (3)
15........................................  Electrical and Electronic                      469              (3)
                                             Components.
16........................................  Electroplating....................             413              (1)
17........................................  Explosives Manufacturing..........             457              (3)
18........................................  Ferroalloy Manufacturing..........             424              (3)
19........................................  Fertilizer Manufacturing..........             418              (3)
20........................................  Glass Manufacturing...............             426              (3)
21........................................  Grain Mills.......................             406              (3)
22........................................  Gum and Wood Chemicals............             454              (3)
23........................................  Hospitals \3\.....................             460              (4)
24........................................  Ink Formulating...................             447              (3)
25........................................  Inorganic                                      415      (1) and (3)
                                             Chemicals[Dagger][Dagger].
26........................................  Iron and Steel Manufacturing......             420              (1)
27........................................  Landfills.........................             445              (3)
28........................................  Leather Tanning and Finishing.....             425              (3)
29........................................  Meat and Poultry Products.........             432              (1)
30........................................  Metal Finishing...................             433              (1)
31........................................  Metal Molding and Casting.........             464              (3)
32........................................  Metal Products and Machinery......             438              (1)
33........................................  Mineral Mining and Processing.....             436              (3)
34........................................  Nonferrous Metals Forming and                  471              (3)
                                             Metal Powders.
35........................................  Nonferrous Metals Manufacturing...             421              (3)
36........................................  Oil and Gas                                    435      (1) and (4)
                                             Extraction[dagger][dagger].
37........................................  Ore Mining and Dressing...........             440              (5)
38........................................  Organic Chemicals, Plastics, and               414      (1) and (3)
                                             Synthetic Fibers[Dagger][Dagger].
39........................................  Paint Formulating.................             446              (3)
40........................................  Paving and Roofing Materials (Tars             443              (3)
                                             and Asphalt).
41........................................  Pesticide Chemicals...............             455              (2)
42........................................  Petroleum Refining................             419              (3)
43........................................  Pharmaceutical Manufacturing......             439              (1)
44........................................  Phosphate Manufacturing...........             422              (3)
45........................................  Photographic......................             459              (3)
46........................................  Plastic Molding and Forming.......             463              (3)
47........................................  Porcelain Enameling...............             466              (3)
48........................................  Pulp, Paper, and Paperboard.......             430              (2)
49........................................  Rubber Manufacturing..............             428              (3)
50........................................  Soaps and Detergents Manufacturing             417              (3)
51........................................  Steam Electric Power Generating...             423              (4)
52........................................  Sugar Processing..................             409              (3)
53........................................  Textile Mills.....................             410              (3)
54........................................  Timber Products Processing........             429              (3)
55........................................  Transportation Equipment Cleaning.             442              (3)
56........................................  Waste Combustors..................             444              (5)
----------------------------------------------------------------------------------------------------------------
\3\ Based on available information, hospitals consist mostly of indirect dischargers for which EPA has not
  established pretreatment standards. As discussed in Section VII.D, EPA is including hospitals in its review of
  the Health Services Industry, a potential new category for pretreatment standards. As part of that process,
  EPA will review the existing effluent guidelines for the few direct dischargers in the category.
[dagger] Note: The descriptions of the ``Findings'' codes are presented immediately prior to this table.

[Dagger] Note: Two codes (``(1)'' and ``(4)'') are used for this category as both codes are applicable to this
  category and do not overlap. The first code (``(1)'') refers to the recent effluent guidelines rulemaking
  (January 23, 2002; 67 FR 3370), which created two new subcategories [Coal Remining (Subpart G) and Western
  Alkaline Coal (Subpart H)]. The second code (``(4)'') refers to the on-going detailed study described above
  that is examining the issues identified by commenters to the preliminary 2006 Plan, which are different from
  those addressed in the previous rulemaking.
[dagger] [dagger] Note: Two codes (``(1)'' and ``(4)'') are used for this category as both codes are applicable
  to this category and do not overlap. The first code (``(1)'') refers to the recent effluent guidelines
  rulemaking (January 22, 2001; 66 FR 6850), which established BAT limitations and NSPS for non-aqueous drilling
  fluids. The second code (``(4)'') refers to the on-going detailed study described above that is examining the
  issues identified by commenters to the preliminary 2006 Plan, which are different from those addressed in the
  previous rulemaking.
[Dagger] [Dagger] Note: Two codes (``(1)'' and ``(3)'') are used for this category as both codes are applicable
  to this category and do not overlap. The first code (``(1)'') refers to the on-going effluent guidelines
  rulemaking for the Chlorinated Hydrocarbon (CCH) manufacturing sector, which includes facilities currently
  regulated by the OCSPF and Inorganics effluent guidelines. The second code (``(3)'') indicates that the
  remainder of the facilities in these two categories do not represent a hazard priority at this time.

VI. EPA's 2008 Annual Review of Existing Effluent Guidelines and
Pretreatment Standards Under CWA Sections 301(d), 304(b), 304(g), and
307(b)

    As discussed in section V and further in section VIII, EPA is
coordinating its annual reviews of existing effluent guidelines and
pretreatment standards under CWA sections 301(d), 304(b), 307(b), and
304(g) with the publication of preliminary Plans and biennial Plans
under section 304(m). Public comments received on EPA's prior reviews
and Plans helped the Agency prioritize its analysis of existing
effluent guidelines and pretreatment standards during the 2007 review.
The information gathered during the 2007 annual review, including the
identification of data gaps in the analysis of certain categories with
existing regulations, in turn, provides a starting point for EPA's 2008
annual review. See Table V-1 in section V.B.4 of today's notice. In
2008, EPA intends to again conduct a screening-level analysis of all 56
categories and compare the results against those from previous years.
EPA will also conduct further review of the industrial categories
currently regulated by existing effluent guidelines that cumulatively
comprise 95% of the reported hazard (reported in units of toxic-
weighted pound equivalent or TWPE). Additionally, EPA intends to
continue detailed studies of the following categories with existing
effluent guidelines and pretreatment standards: Steam Electric Power
Generating (Part 423), Coal Mining (Part 434), Oil and Gas Extraction
(Part 435) (only to assess whether to include coalbed methane
extraction as a new subcategory) and Hospitals (Part 460) (which is
part of the Health Services Industry detailed study). EPA is
identifying three categories (Ore Mining and Dressing, Centralized
Waste Treatment, and Waste Combustors) for a preliminary category
review in the 2008 annual review. EPA invites comment and data on the
four detailed studies, the three preliminary category reviews, and all
remaining point source categories.

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

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

    All indirect dischargers are subject to general pretreatment
standards (40 CFR 403), including a prohibition on discharges causing
``pass through'' or ``interference.'' See 40 CFR 403.5. All POTWs with
approved pretreatment programs must develop local limits to implement
the general pretreatment standards. All other POTWs must develop such
local limits where they have experienced ``pass through'' or
``interference'' and such a violation is likely to recur. There are
approximately 1,500 POTWs with approved pretreatment programs and
13,500 small POTWs that are not required to develop and implement
pretreatment programs.
    In addition, EPA establishes technology-based national regulations,
termed ``categorical pretreatment standards,'' for categories of
industry discharging pollutants to POTWs that may pass through,
interfere with or otherwise be incompatible with POTW operations. CWA
section 307(b). Generally, categorical pretreatment standards are
designed such that wastewaters from direct and indirect industrial
dischargers are subject to similar levels of treatment. EPA has
promulgated such pretreatment standards for 35 industrial categories.
    Historically, for most effluent guidelines rulemakings, EPA
determines the potential for ``pass through'' by comparing the
percentage of the pollutant removed by well-operated POTWs achieving
secondary treatment with the percentage of the pollutant removed by
wastewater treatment options that EPA is evaluating as the bases for
categorical pretreatment standards (January 28, 1981; 46 FR 9408).
    The term ``interference'' means a discharge which, alone or in
conjunction with a discharge or discharges from other sources, both:
(1) Inhibits or disrupts the POTW, its treatment processes or
operations, or its sludge processes, use or disposal; and (2) therefore
is a cause of a violation of any requirement of the POTW's NPDES permit
(including an increase in the magnitude or duration of a violation) or
of the prevention of sewage sludge use or disposal in compliance with
applicable regulations or permits. See 40 CFR 403.3(i). To determine
the potential for ``interference,'' EPA generally evaluates the
industrial indirect discharges in terms of: (1) The compatibility of
industrial wastewaters and domestic wastewaters (e.g., type of
pollutants discharged in industrial wastewaters compared to pollutants
typically found in domestic wastewaters); (2) concentrations of
pollutants discharged in industrial wastewaters that might cause
interference with the POTW collection system, the POTW treatment
system, or biosolids disposal options; and (3) the potential for
variable pollutant loadings to cause interference with POTW operations
(e.g., batch discharges or slug loadings from industrial facilities
interfering with normal POTW operations).
    If EPA determines a category of indirect dischargers causes pass
through or interference, EPA would then consider the BAT and BPT
factors (including ``such other factors as the Administrator deems
appropriate'') specified in section 304(b) to determine whether to
establish pretreatment standards for these activities. Examples of
``such other factors'' include a consideration of the magnitude of the
hazard posed by the pollutants discharged as measured by: (1) The total
annual TWPE discharged by the industrial sector; and (2) the average
TWPE discharge among facilities that discharge to POTWs. Additionally,
EPA would consider whether other regulatory tools (e.g., use of local
limits under Part 403) or voluntary measures would better control the
pollutant discharges from this category of indirect dischargers. For
example, EPA relied on a similar evaluation of ``pass through
potential'' in its prior decision not to

promulgate national categorical pretreatment standards for the
Industrial Laundries industry. See 64 FR 45071 (August 18, 1999). EPA
noted in this 1999 final action that, ``While EPA has broad discretion
to promulgate such [national categorical pretreatment] standards, EPA
retains discretion not to do so where the total pounds removed do not
warrant national regulation and there is not a significant concern with
pass through and interference at the POTW.'' See 64 FR 45077 (August
18, 1999).
    EPA reviewed TRI data in order to identify industry categories
without categorical pretreatment standards that are discharging
pollutants to POTWs that may pass through, interfere with or otherwise
be incompatible with POTW operations (see DCN 04247). This review did
not identify any such industrial categories. EPA also evaluated
stakeholder comments and pollutant discharge information in the
previous annual reviews to inform this review. In particular,
commenters on the 2004 and 2006 annual reviews raised concerns about
discharges of emerging pollutants of concern such as endocrine
disruptors and mercury discharges from dentists and health service
facilities and urged EPA to consider establishing effluent guidelines
and pretreatment standards for such discharges. In response to these
comments, EPA investigated the Health Services Industry in its 2006
annual review and found that it did not have readily available
information to make an informed decision on the potential for ``pass
through'' or ``interference.'' Consequently, EPA identified this
industrial category for detailed study in its 2007 and 2008 annual
reviews. EPA also solicits comment and data on all industrial sectors
not currently subject to categorical pretreatment standards for its
2008 review. Finally, EPA solicits comment on methods for aggregating
pollutant discharge data collected by pretreatment programs to further
inform its future review of industry categories without categorical
pretreatment standards.

B. Health Services Industry Detailed Study

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

is concerned about pharmaceuticals in the environment and is working on
this issue in many different areas. Currently, the Agency is: (1)
Developing analytical methods to measure pharmaceuticals in wastewater
and biosolids; (2) studying the health and ecological effects of

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

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

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

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

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

1. Schedule for 2007 and 2008 Annual Reviews Under Section 304(b)
    As noted in section IV.B, CWA section 304(m)(1)(A) requires EPA to
publish a Plan every two years that establishes a schedule for the
annual review and revision, in accordance with section 304(b), of the
effluent guidelines that EPA has promulgated under that section. This
preliminary 2008 Plan announces EPA's schedule for performing its
section 304(b) reviews. The schedule is as follows: EPA will coordinate
its annual review of existing effluent guidelines under section 304(b)
with its publication of the preliminary and final Plans under CWA
section 304(m). In other words, in odd-numbered years, EPA intends to
complete its annual review upon publication of the preliminary Plan
that EPA must publish for public review and comment under CWA section
304(m)(2). In even-numbered years, EPA intends to complete its annual
review upon the publication of the final Plan. EPA's 2007 annual review
is the review cycle ending upon the publication of this preliminary
2008 Plan.
    EPA is coordinating its annual reviews under section 304(b) with
publication of Plans under section 304(m) for several reasons. First,
the annual review is inextricably linked to the planning effort,
because the results of each annual review can inform the content of the
preliminary and final Plans, e.g., by identifying candidates for ELG
revision for which EPA can schedule rulemaking in the Plan, or by
calling to EPA's attention point source categories for which EPA has
not promulgated effluent guidelines. Second, even though not required
to do so under either section 304(b) or section 304(m), EPA believes
that the public interest is served by periodically presenting to the
public a description of each annual review (including the review
process employed) and the results of the review. Doing so at the same
time EPA publishes preliminary and final plans makes both processes
more transparent. Third, by requiring EPA to review all existing
effluent guidelines each year, Congress appears to have intended that
each successive review would build upon the results of earlier reviews.
Therefore, by describing the 2007 annual review along with the
preliminary 2008 Plan, EPA hopes to gather and receive data and
information that will inform its reviews for 2008 and the final 2008
Plan.
2. Schedule for Possible Revision of Effluent Guidelines Promulgated
Under Section 304(b)
    EPA is currently conducting rulemakings to potentially revise
existing effluent guidelines and pretreatment standards for the
following categories: Organic Chemicals, Plastics and Synthetic Fibers
(OCPSF) and Inorganic Chemicals (to address discharges from Vinyl
Chloride and Chlor-Alkali facilities identified for effluent guidelines
rulemaking in the final 2004 Plan, now termed the ``Chlorine and
Chlorinated Hydrocarbon (CCH) manufacturing'' rulemaking) and
Concentrated Animal Feeding Operations (rulemaking on BCT technology
options for controlling fecal coliform and new source performance
standards). EPA emphasizes that identification of the rulemaking
schedules for these effluent guidelines does not constitute a final
decision to revise the guidelines. EPA may conclude at the end of the
formal rulemaking process--supported by an administrative record and
following an opportunity for public comment--that effluent guidelines
revisions are not appropriate for these categories. EPA is not
scheduling any other existing effluent guidelines for rulemaking at
this time.

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

    The final Plan must also identify categories of sources discharging
non-trivial amounts of toxic or non-conventional pollutants for which
EPA has not published effluent limitations guidelines under section
304(b)(2) or new source performance standards (NSPS) under section 306.
See CWA section 304(m)(1)(B); S. Rep. No. 99-50,

Water Quality Act of 1987, Leg. Hist. 31 (indicating that section
304(m)(1)(B) applies to ``non-trivial discharges''). The final Plan
must also establish a schedule for the promulgation of effluent
guidelines for the categories identified under section 304(m)(1)(B),
providing for final action on such rulemaking not later than three
years after the identification of the category in a final Plan.\4\ See
CWA section 304(m)(1)(C).
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    \4\ EPA recognizes that one court--the U.S. District Court for
the Central District of California--has found that EPA has a duty to
promulgate effluent guidelines within three years for new categories
identified in the Plan. See NRDC et al. v. EPA, 437 F.Supp.2d 1137
(C.D. Ca, 2006). However, EPA continues to beileve that the
mandatory duty under section 304(m)(l)(c) is limited to providing a
schedule for concluding the effluent guidelines rulemaking--not
necessarily promulgating effluent guidelines--within three years,
and has appealed this decision.
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    EPA is currently conducting rulemakings to determine whether to
establish effluent guidelines for three potential new categories (see
September 2, 2004; 69 FR 53705). Two of these categories--Airport
Deicing Operations and Drinking Water Treatment--were identified as
potential new categories in the final 2004 Plan. EPA initiated
rulemaking for the third category--Construction and Development--
because it was directed to do so by a district court order. NRDC et al.
v. EPA, No. 04-8307, order (C.D. Ca., December 6, 2006). Although EPA
respectfully disagrees with this decision, and does not believe that it
is required to promulgate effluent guidelines for this potential new
category, EPA is conducting the rulemaking ordered by the court pending
appeal of the Court's decision. For the reasons discussed below, EPA is
not at this time proposing to identify any other potential new
categories for effluent guidelines rulemaking and therefore is not
scheduling effluent guidelines rulemaking for any such categories in
this preliminary Plan.
    In order to identify industries not currently subject to effluent
guidelines, EPA primarily used data from TRI and PCS. Facilities with
data in TRI and PCS are identified by a four-digit SIC code (see DCN
04247). EPA performs a crosswalk between the TRI and PCS data,
identified with the four digit SIC code, and the 56 point source
categories with effluent guidelines or pretreatment standards to
determine if a four-digit SIC code is currently regulated by existing
effluent guidelines (see DCN 04247). EPA also relied on comments
received on its previous 304(m) plans to identify potential new
categories. EPA then assessed whether these industrial sectors not
currently regulated by effluent guidelines meet the criteria specified
in section 304(m)(1)(B), as discussed below.
    First, section 304(m)(1)(B) specifically applies only to
``categories of sources'' for which EPA has not promulgated effluent
guidelines. Because this section does not define the term
``categories,'' EPA interprets this term based on the use of the term
in other sections of the Clean Water Act, legislative history, and
Supreme Court case law, and in light of longstanding Agency practice.
As discussed below, these sources indicate that the term ``categories''
refers to an industry as a whole based on similarity of product
produced or service provided, and is not meant to refer to specific
industrial activities or processes involved in generating the product
or service. EPA therefore identifies in its biennial Plan only those
new industries that it determines are properly considered stand-alone
``categories'' within the meaning of the Act--not those that are
properly considered potential new subcategories of existing categories
based on similarity of product or service.
    The use of the term ``categories'' in other provisions of the CWA
indicates that a ``category'' encompasses a broad array of industrial
operations related by similarity of product or service provided. For
example, CWA section 306(b)(1)(A) provides a list of ``categories of
sources'' (for purposes of new source performance standards) that
includes ``pulp and paper mills,'' ``petroleum refining,'' ``iron and
steel manufacturing,'' and ``leather tanning and finishing.'' These
examples suggest that a ``category'' is intended to encompass a
diversity of facilities engaged in production of a similar product or
provision of a similar service. See also CWA section 402(e) and (f)
(indicating that ``categories'' are comprised of smaller subsets such
as ``class, type, and size''). In the effluent guidelines program, EPA
uses these factors, among others, to define ``subcategories'' of a
larger industrial category.
    The legislative history of later amendments to CWA section 304
indicates that Congress was aware that there was a distinction between
``categories'' and ``subcategories'' in effluent guidelines. See Leg.
Hist: Senate Committee on Environment and Public Works, A Legislative
History of the Clean Water Act of 1977, prepared by the Environmental
Policy Division of the Congressional Research Service of the Library of
Congress (Comm. Print 1978) at 455 (indicating that BAT calls for the
examination of ``each industry category or subcategory''). See also
Chemical Manufacturers' Association v. EPA, 470 U.S. 116, 130 (1985)
(interpreting this legislative history as ``admonish[ing] [EPA] to take
into account the diversity within each industry by establishing
appropriate subcategories.''). Therefore, in light of Congress'
awareness of the distinction between categories and subcategories, EPA
reasonably assumes that Congress' use in 1987 of the term
``categories'' in section 304(m)(1)(B) was intentional. If Congress had
intended for EPA to identify potential new subcategories in the Plan,
it would have said so. Congress' direction for EPA to identify new
``categories of sources'' cannot be read to constrain EPA's discretion
over its internal planning processes by requiring identification of
potential new ``subcategories'' in the Plan. See Norton v. Southern
Utah Wilderness Alliance et al, 124 S Ct. 2373, 2383 (2004) (finding
that a statutory mandate must be sufficiently specific in order to
constrain agency discretion over its internal planning processes).
    Moreover, the distinction between a category and a subcategory has
long been recognized by the Supreme Court. In Chemical Manufacturers'
Association v. EPA, the Court recognized that categories are
``necessarily rough-hewn'' (id. at 120) and that EPA establishes
subcategories to reflect ``differences among segments of the industry''
based on the factors that EPA must consider in establishing effluent
limitations. Id. at 133, n. 24. See also Texas Oil and Gas Assn. v.
EPA, 161 F.3d 923, 939 (5th Cir. 1998) (``The EPA is authorized--
indeed, is required--to account for substantial variation within an
existing category * * * of point sources.''). Indeed, the effluent
guidelines considered by the Supreme Court in Du Pont case was divided
into 22 subcategories, each with its own set of technology-based
limitations, reflecting variations in processes and pollutants. Id. at
22 and nn. 9 and 10. See also id. at 132 (noting that legislative
history ``can be fairly read to allow the use of subcategories based on
factors such as size, age, and unit processes.'').
    EPA's interpretation of the term ``categories'' is consistent with
longstanding Agency practice. Pursuant to CWA section 304(b), which
requires EPA to establish effluent guidelines for ``classes and
categories of point sources,'' EPA has promulgated effluent guidelines
for 56 industrial ``categories.'' Each of these ``categories'' consists
of a broad array of facilities that produce a similar product or
perform a similar service--and is broken down into smaller subsets,
termed ``subcategories,'' that reflect variations

in the processes, treatment technologies, costs and other factors
associated with the production of that product that EPA is required to
consider in establishing effluent guidelines under section 304(b). For
example, the ``Pulp, Paper and Paperboard point source category'' (40
CFR part 430) encompasses a diverse range of industrial facilities
involved in the manufacture of a like product (paper); the facilities
range from mills that produce the raw material (pulp) to facilities
that manufacture end-products such as newsprint or tissue paper. EPA's
classification of this ``industry by major production processes used
many of the statutory factors set forth in CWA Section 304(b),
including manufacturing processes and equipment (e.g., chemical,
mechanical, and secondary fiber pulping; pulp bleaching; paper making);
raw materials (e.g., wood, secondary fiber, non-wood fiber, purchased
pulp); products manufactured (e.g., unbleached pulp, bleached pulp,
finished paper products); and, to a large extent, untreated and treated
wastewater characteristics (e.g., BOD loadings, presence of toxic
chlorinated compounds from pulp bleaching) and process water usage and
discharge rates.'' \5\ Each subcategory reflects differences in the
pollutant discharges and treatment technologies associated with each
process. Similarly, the ``Iron and Steel Manufacturing point source
category'' (40 CFR part 420) consists of various subcategories that
reflect the diverse range of processes involved in the manufacture of
iron and steel, ranging from facilities that make the basic fuel used
in the smelting of iron ore (subpart A--Cokemaking) to those that cast
the molten steel into molds to form steel products (subpart F--
Continuous Casting). An example of an industry category based on
similarity of service provided is the Transportation Equipment Cleaning
Point Source Category (40 CFR Part 442), which is subcategorized based
on the type of tank (e.g., rail cars, trucks, barges) or cargo
transported by the tanks cleaned by these facilities, reflecting
variations in wastewaters and treatment technologies associated with
each.
---------------------------------------------------------------------------

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

    Thus, EPA's first decision criterion asks whether a new industrial
operation or activity in question is properly characterized as an
industry ``category'' based on similarity of product produced or
service provided, or whether it simply represents a variation (e.g. new
process) among facilities generating the same product and is therefore
properly characterized as a potential new subcategory. If it is
properly considered a stand-alone category in its own right, EPA
addresses it pursuant to sections 304(m)(1)(B) and (C). If EPA
determines that it is a potential new ``subcategory,'' EPA reviews the
activity in its section 304(b) annual review of the existing categories
in which it would belong, in order to determine whether it would be
appropriate to revise the effluent guidelines for that category to
include limits for the new subcategory.
    As a practical matter, this approach makes sense. There are
constantly new processes being developed within an industry category--
new ways of making paper or steel, new ways of cleaning transportation
equipment, new ways of extracting oil and gas, for example. These new
processes are closely interwoven with the processes already covered by
the existing effluent guidelines for the category--they often generate
similar pollutants, are often performed by the same facilities, and
their discharges can often be controlled by the same treatment
technology. Therefore, it is more efficient for EPA to consider
industry categories holistically by looking at these new processes when
reviewing and revising the effluent guidelines for the existing
category. The opposite approach could lead to a situation when EPA
would do a separate effluent guidelines rulemaking every time a new
individual process emerges without considering how these new
technologies could affect BAT for related activities. In revising
effluent guidelines, EPA often creates new subcategories to reflect new
processes. For example, the effluent guidelines for the pesticides
chemicals category (40 CFR part 455) did not originally cover refilling
establishments because this process was developed after the limitations
were first promulgated. When EPA revised the effluent guidelines for
the Pesticides Chemicals category, EPA included refilling
establishments as a new subcategory subject to the effluent limits for
this category. The issue is not whether a guideline should be developed
for a particular activity, but whether the analysis should occur in
isolation or as part of a broader review.
    To ensure appropriate regulation of such new subcategories prior to
EPA's promulgation of new effluent guidelines for the industrial
category to which they belong, under EPA's regulations at 40 CFR part
125.3(c), a permit writer is required to establish technology-based
effluent limitations for these processes on a case by case, ``Best
Professional Judgment'' (BPJ) basis, considering the same factors that
EPA considers in promulgating categorical effluent limitations
guidelines. These new processes are covered by these BPJ-based effluent
guidelines until the effluent guidelines for the industrial category
are revised to include limits for these new subcategories.
    EPA's approach to addressing new industries is analogous to EPA's
approach to addressing newly identified pollutants. When EPA identifies
new pollutants associated with the discharge from existing categories,
EPA considers limits for those new pollutants in the context of
reviewing and revising the existing effluent guidelines for that
category. For example, EPA revised effluent limitations for the
bleached papergrade kraft and soda and papergrade sulfite subcategories
within the Pulp, Paper, and Paperboard point source category (40 CFR
430) to add BAT limitations for dioxin, which was not measurable when
EPA first promulgated these effluent guidelines and pretreatment
standards and was not addressed by the pollutant control technologies
considered at that time. See 63 FR 18504 (April 15, 1998).
    In short, for the reasons discussed above, EPA believes that the
appropriateness of addressing a new process or pollutant discharge is
best considered in the context of revising an existing set of effluent
guidelines. Accordingly, EPA analyzed similar industrial activities not
regulated by existing regulations as part of its annual review of
existing effluent guidelines and pretreatment standards.
    The second criterion EPA considers when implementing section
304(m)(1)(B) also derives from the plain text of that section. By its
terms, CWA section 304(m)(1)(B) applies only to industrial categories
to which effluent guidelines under section 304(b)(2) or section 306
would apply, if promulgated. Therefore, for purposes of section
304(m)(1)(B), EPA would not identify in the biennial Plan any
industrial categories comprised exclusively or almost exclusively of
indirect discharging facilities regulated under section 307. For
example, based on its finding that the Health Services Industry
consists almost exclusively of indirect dischargers, EPA did not
identify this industry in the 2008 Plan but instead will consider
whether to adopt pretreatment standards for this industry in the
context of its section 304(g)/307(b) review of indirect dischargers.
Similarly, EPA would not identify in the Plan categories for which
effluent guidelines do not apply, e.g.,

POTWs regulated under CWA section 301(b)(1)(B) or municipal storm water
runoff regulated under CWA section 402(p)(3)(B).
    Third, CWA section 304(m)(1)(B) applies only to industrial
categories of sources that discharge toxic or non-conventional
pollutants to waters of the United States. EPA therefore did not
identify in the Plan industrial activities for which conventional
pollutants, rather than toxic or non-conventional pollutants, are the
pollutants of concern. In addition, even when toxic and non-
conventional pollutants might be present in an industrial category's
discharge, section 304(m)(1)(B) does not apply when those discharges
occur in trivial amounts. EPA does not believe that it is necessary,
nor was it Congressional intent, to develop national effluent
guidelines for categories of sources that discharge trivial amounts of
toxic or non-conventional pollutants and therefore pose an
insignificant hazard to human health or the environment. See Senate
Report Number 50, 99th Congress, 1st Session (1985); WQA87 Legislative
History 31 (see DCN 03911). This decision criterion leads EPA to focus
on those remaining industrial categories where, based on currently
available information, new effluent guidelines have the potential to
address a non-trivial hazard to human health or the environment
associated with toxic or non-conventional pollutants.
    Finally, EPA interprets section 304(m)(1)(B) to give EPA the
discretion to identify in the Plan only those potential new categories
for which an effluent guidelines rulemaking may be an appropriate tool.
Therefore, EPA does not identify in the Plan all potential new
categories discharging toxic and non-conventional pollutants. Rather,
EPA identifies only those potential new categories for which it
believes that effluent guidelines may be appropriate, taking into
account Agency priorities, resources and the full range of other CWA
tools available for addressing industrial discharges.
    This interpretation is supported by the Supreme Court's decision in
Norton v. Southern Utah Wilderness Alliance et al. (124 S. Ct. 2373,
2383 (2004)), which recognized the importance of agency discretion over