[Federal Register Volume 70, Number 198 (Friday, October 14, 2005)]
[Proposed Rules]
[Pages 60199-60202]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20000]
Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 /
Proposed Rules
[[Page 60199]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 403
[OW-2005-0024; 7980-3]
RIN 2040-AC58
Availability of and Procedures for Removal Credits
AGENCY: Environmental Protection Agency (EPA).
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: Today's Advance Notice of Proposed Rulemaking (ANPRM) seeks
comment on two issues concerning the removal credits provisions in the
General Pretreatment Regulations. EPA requests comments on whether to
amend the list of pollutants for which removal credits are available to
add certain pollutants. The pollutants that the Agency would add are
those that EPA previously has determined, after an exposure and hazard
screening, would not require sewage sludge regulations. EPA is also
soliciting comment on options to amend the ``consistent removal''
provision in the removal credits regulations that would be consistent
with a decision of the U.S. Court of Appeals for the Third Circuit.
DATES: Comments must be received on or before December 13, 2005.
ADDRESSES: Submit your comments, identified by Docket ID No. OW-2005-
0024 by one of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov. Follow the
on-line instructions for submitting comments.
Agency Web site: http://www.epa.gov/edocket. EDOCKET, EPA's
electronic public docket and comment system, is EPA's preferred method
for receiving comments. Follow the on-line instructions for submitting
comments.
E-mail: [email protected]. Please specify Docket ID No. OW-2005-
0024 in the body of the message.
Mail or Hand Delivery/Courier: Water Docket, Environmental
Protection Agency, Mailcode 4101T, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460, Attention Docket ID No. OW-2005-0024. Please
include a total of two copies. Hand deliveries/couriers are only
accepted during the Docket's normal hours of operation, and special
arrangements should be made for deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. OW-2005-0024.
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at http://www.epa.gov/edocket, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through EDOCKET, regulations.gov, or e-
mail. The EPA EDOCKET and the federal regulations.gov websites are
``anonymous access'' systems, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through EDOCKET or regulations.gov, your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit EDOCKET on-line or see the Federal Register of May 31,
2002 (67 FR 38102). For additional instructions on submitting comments,
go to Section I.B1 of the preamble.
Docket: All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in EDOCKET or in hard
copy at the Water Docket, EPA/DC, EPA West, Room B102, 1301
Constitution Ave., NW., Washington, DC 20004. The Public Reading Room
is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The telephone number for the Public Reading Room is
(202) 566-1744, and the telephone number for the Water Docket is (202)
566-2426.
FOR FURTHER INFORMATION CONTACT: Jennifer Chan, Water Permits Division,
Office of Wastewater Management (4203M), Environmental Protection
Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; phone
number: (202) 564-0995; fax number: (202) 564-6431; e-mail address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
Entities potentially affected by this action are governmental
entities responsible for implementation of the National Pretreatment
Program and industrial facilities subject to Pretreatment Standards and
requirements. These entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Local government............. Publicly Owned Treatment Works (POTWs).
State government............. States and Tribes acting as Pretreatment
Program Control Authorities or as
Approval Authorities.
Industry..................... Industrial Users of POTWs.
Federal Government........... EPA Regional Offices Acting as
Pretreatment Program Control Authorities
or as Approval Authorities.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your organization or facility is regulated by this action, you should
carefully examine the applicability criteria in 40 CFR 403.1 and 40 CFR
403.7. If you have questions about the applicability of this action to
a particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.
[[Page 60200]]
B. What Should I Consider as I Prepare My Comments for EPA?
When submitting comments, remember to:
1. Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).
2. Follow directions--The Agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.
3. Explain why you agree or disagree; suggest alternatives and
substitute language for your requested changes.
4. Describe any assumptions and provide any technical information
and/or data that you used.
5. If you estimate potential costs or burdens, explain how you
arrived at your estimate in sufficient detail to allow for it to be
reproduced.
6. Provide specific examples to illustrate your concerns, and
suggest alternatives.
7. Explain your views as clearly as possible.
8. Make sure to submit your comments by the comment period deadline
identified.
II. Overview of Removal Credits
A. What are the Existing Rules Relating to Removal Credits?
Section 307(b)(1) of the Clean Water Act (CWA) directs EPA to
establish categorical Pretreatment Standards in order to prevent
interference with POTW operation and pass through of inadequately
treated pollutants. Because, in certain instances, POTWs could provide
some or all of the treatment of an Industrial User's wastewater that
would otherwise be required pursuant to the Pretreatment Standard, the
Act also authorizes a discretionary program for POTWs to grant
``removal credits'' to their Industrial Users. Removal credits are a
regulatory mechanism by which Industrial Users may discharge a
pollutant in quantities that exceed what would otherwise be allowed
under an applicable categorical Pretreatment Standard because it has
been determined that the POTW to which the Industrial User discharges
consistently removes the pollutant.
Section 307(b)(1) establishes a three-part test that a POTW must
meet in order to obtain removal credit authority for a given pollutant.
Removal credits may be authorized only if (1) the POTW ``removes all or
any part of such toxic pollutant,'' (2) the POTW's ultimate Discharge
would ``not violate that effluent limitation or standard which would be
applicable to that toxic pollutant if it were discharged'' directly
rather than through a POTW, and (3) the POTW's Discharge would ``not
prevent sludge use and disposal by such [POTW] in accordance with
section [405] * * *'' (Sec. 307(b)). EPA promulgated removal credit
regulation that are codified at 40 CFR 403.7 (See 43 FR 27736, 46 FR
9404, 49 FR 31212, and 52 FR 42434).
Under 40 CFR 403.7, POTWs are authorized to grant removal credits
if they meet the conditions outlined in 40 CFR 403.7(a)(3). One
condition is POTWs must demonstrate and continue to achieve
``consistent removal'' of the pollutant. ``Consistent removal'' is
defined at 40 CFR 403.7(b). Another condition is removal credits may
only be made available for pollutants that are listed in Appendix G,
Table I of Part 403 for the sludge use or disposal practice employed by
the POTW, when the requirements in 40 CFR Part 503 are met, or for
pollutants listed in Appendix G, Table II of this part when the
concentration for a pollutant in the sewage sludge does not exceed the
concentration for the pollutant in Appendix G, Table II. In addition,
removal credits may be made available for any pollutant in sewage
sludge when the POTW disposes all of its sewage sludge in a municipal
solid waste landfill unit that meets the criteria in 40 CFR Part 258.
B. Third Circuit Court Decision
The U.S. Court of Appeals for the Third Circuit in NRDC v. EPA, 790
F.2d 289 (3rd. Cir. 1986), struck down the 1984 provisions of EPA's
General Pretreatment regulations (49 FR 31212) concerning removal
credits on the grounds that EPA had not promulgated the comprehensive
sewage sludge regulations required by CWA section 405 sludge
regulations. In the course of the decision, the court also determined
that the definition of ``consistent removal'' in the regulations failed
to implement the requirements of the CWA. The court held that the
definition violated a statutory requirement that direct and indirect
dischargers be held to the same standards and that EPA's definition of
consistent POTW removal, i.e. removal that is achieved only 50% of the
time, violated section 307(b)(1) of the CWA.
In 1987, the Agency replaced the 1984 ``consistent removal''
provision with the 1981 provision (46 FR 9404). See 52 FR 42434. On
February 19, 1993, EPA promulgated the first round of sewage sludge
regulations, 40 CFR Part 503, (58 FR 9248) and included those
pollutants regulated in 40 CFR Part 503 in Appendix G of 40 CFR Part
403, Table I, Regulated Pollutants in Part 503 Eligible for a Removal
Credit. Those pollutants not regulated in 40 CFR Part 503 and that the
Agency was no longer considering for the sewage sludge regulations were
included in Appendix G of 40 CFR Part 403, Table II, Additional
Pollutants Eligible for a Removal Credit.
C. What is the Status of EPA's Review of the Existing Part 503 Sewage
Sludge Regulations?
The CWA requires EPA to review the sewage sludge regulations every
two years to identify additional toxic pollutants in sewage sludge that
may warrant regulation under section 405(d). Under a recent biennial
review cycle, EPA evaluated publicly available information on the
toxicity, persistence, concentration, mobility, and potential for
exposure of additional toxic pollutants in sewage sludge. In a late
2003 Federal Register notice, EPA outlined a final action plan (68 FR
75531) for reviewing its sewage sludge regulations in response to a
2002 National Research Council (NRC) report that identified a need to
update the scientific basis of Part 503. In that notice, EPA also
presented the results of its studies to identify additional toxic
pollutants that might be candidates for future sewage sludge
regulations. EPA identified fifteen pollutants from a list of 803
pollutants for further evaluation and possible regulation. These 15
pollutants, listed below, had a Hazard Quotient (HQ) equal to or
greater than one and thus failed the screening. The HQ is the ratio of
the magnitude of exposure of the receptor organism (humans, aquatic
organism) to the human health or ecological benchmark. EPA will obtain
updated concentration data and conduct a refined risk assessment using
the data to determine whether to propose amendments to Part 503.
Acetone
Anthracene
Barium
Beryllium
Carbon disulfide
Chloroaniline, 4-; p-Chloroaniline
Diazinon
Fluoranthene
Manganese (from drinking water)
Methyl ethyl ketone; 2-Butanone
Nitrate (as Nitrate-nitrogen)
Nitrite (as Nitrate-nitrogen)
Phenol
Pyrene
Silver
The Federal Register notice (68 FR 75531, December 31, 2003) includes
[[Page 60201]]
timeframes for taking action on these pollutants. Once this action is
taken, Appendix G of the Pretreatment regulation would be modified to
add the additional pollutants if warranted. Additional biennial review
cycles will occur per section 405(d)(2)(C) of the CWA.
EPA also determined that there was sufficient toxicological and
exposure data for 25 pollutants to conclude that these pollutants would
not require regulation under Part 503. (With respect to five of these
25 pollutants, EPA has reevaluated its determination because they are
undergoing current IRIS (Integrated Risk Information System) or Office
of Pesticide Program reassessment.) These 5 pollutants are listed
below:
Benzoic acid
Butyl benzyl phthalate
Dichloroethene, 1, 2-trans-
Dichloromethane; Methylene chloride
Dioxane, 1,4-
The remaining 20 pollutants, listed in Section III.A., have undergone
EPA's rigorous exposure and hazard screening which includes a
probabilistic model of 14 potential pathways to humans and ecological
endpoints.
III. Solicitation of Comments
This section of the ANPRM describes the two issues EPA is
soliciting comments on.
1. Whether EPA should propose to amend the list of pollutants
eligible for removal credits to add the 20 pollutants for which the
Agency has completed an exposure and hazard screening.
2. Whether there are any options to amend the ``consistent
removal'' provision in the removal credits regulations that would be
consistent with the earlier Third Circuit decision.
A. What Action Could EPA Take To Amend the List of Eligible Pollutants
EPA did not propose any changes to the list of pollutants eligible
for removal credits or any modifications to the procedures for
obtaining removal credits in the 1999 proposed Pretreatment
Streamlining Rule (64 FR 39564). (EPA notes that the Agency did propose
to change the methodology used for adjusting removal credits to account
for system overflows in 40 CFR 403.7(h). See Section III.H. of today's
final Pretreatment Streamlining Rule.) A number of commenters asked EPA
to consider changes to the regulations to allow greater availability of
removal credits for a broader range of pollutants. More specifically,
these commenters suggested that EPA further streamline the regulations
to make removal credits available for pollutants EPA is no longer
considering for the sewage sludge regulations (40 CFR Part 503). EPA
notes that certain pollutants that it evaluated and is no longer
considering for the sewage sludge regulations are listed in Appendix G
of the 40 CFR Part 403, Table II and are eligible for removal credits.
Moreover, as explained above, EPA is at this time evaluating whether to
amend the sewage sludge regulations. During any resulting rulemaking,
interested parties may submit information and background data to EPA
that would support amendments to Appendix G to add additional
pollutants for which removal credits will be available.
In addition, a POTW or Industrial User may petition the Agency to
establish a Part 503 standard or an amendment to Part 403, Appendix G
for a pollutant. The petition must contain documentation consistent
with the records of decision underlying current Appendix G listings.
Data must be included on the toxicity, fate effects, and environmental
transport properties of individual pollutants adequate to allow EPA to
construct a Part 503 numerical standard, or to allow EPA to make a
finding that the concentration of the pollutant in sewage sludge is not
sufficient to create a reasonable probability of negative human health
or environmental impact from that pollutant contained in the sewage
sludge considering the specific sewage sludge use or disposal practice
being employed by the POTW. See the Federal Register notice dated
December 31, 2003 (68 FR 75531) for the exposure and hazard assessment
needed for pollutant to be considered for removal credits.
As discussed in section II.C. of the preamble, there are 20
pollutants that did not fail EPA's exposure and hazard screening. These
pollutants, listed below, could potentially qualify for removal
credits.
Acetophenone
Azinphos methyl
Biphenyl, 1,1-
Chlorobenzene; Phenyl chloride
Chlorobenzilate
Chlorpyrifos
Cresol, o-; 2-Methylphenol
Endrin
Ethyl p-nitrophenyl phenylphosphororthioate; EPN; Sanox
Hexachlorocyclohexane, alpha-
Hexachlorocyclohexane, beta-
Isobutyl alcohol
Methyl isobutyl ketone (MIBK); Methyl-2-pentanone, 4-
Naled
N-Nitrosdiphenylamine
Trichlorofluoromethane
Trichlorophenoxy propionic acid, 2-2,4,5-; Silvex
Trichlororphenoxyacetic acid, 2,4,5-; 2,4,5-T
Trifluralin
Xylenes (mixture)
EPA could develop upper concentrations for these pollutants and add
them to Appendix G of 40 CFR Part 403, Table II through an amendment to
the Pretreatment rule. EPA requests comment on whether the addition of
any of these 20 pollutants to Appendix G would be helpful to POTWs and
IUs in applying for removal credits. Depending on the response, EPA
would then consider whether to develop a schedule for proposing an
amendment to Appendix G of 40 CFR Part 403, Table II.
B. Consistent Removal Demonstration
EPA did not propose any changes to how a POTW demonstrates
``consistent removal'' in the 1999 Proposed Pretreatment Streamlining
Rule and did not receive comment on this issue. However, in a draft
2004 Report to Congress on the Costs and Benefits of Federal Regulation
prepared by the Office of Management and Budget (OMB), OMB requested
public nominations of specific regulations, guidance documents and
paperwork requirements that, if reformed, could result in lower costs,
greater effectiveness, enhanced competitiveness, more regulatory
certainty and increased flexibility. These nominations, along with
agency responses, were compiled in OMB's March, 2005 report on
Regulatory Reform of the U.S. Manufacturing Sector. One of the reform
nominations that OMB received suggested that the procedures POTWs must
follow to get authority for removal credits are unduly burdensome and
thus make removal credits unduly difficult to obtain. The commenter
asserted that the required testing procedures do not accurately reflect
the actual pollutant removal capability of the POTW and cited as
example the requirement under 40 CFR 403.7(b) which requires that the
POTW calculate the removal rate based on the average of the lowest half
of the removal measurements taken according to listed procedures. The
commenter recommended revisions to more accurately reflect the total
removal by the POTW, and modifications to facilitate the granting of
authority when justified.
With respect to the commenter's concern about ``consistent
removal'', EPA notes that its options are constrained by the Third
Circuit's
[[Page 60202]]
decision. However, EPA is requesting comment on whether there are any
options to amend the consistent removal provision that would simplify
or improve the process for obtaining removal credits that would be
consistent with the restrictions previously established by the court.
Dated: September 27, 2005.
Stephen L. Johnson,
Administrator.
[FR Doc. 05-20000 Filed 10-13-05; 8:45 am]
BILLING CODE 6560-50-P