United States: The Nickel Report: EPA's Effluent Guidelines Program Plan: Roadmap To Technology-Based Water Regulation

In May, EPA issued its 2016 Final Effluent Guidelines (ELG) Program Plan, which is EPA's first screening step to selection of industries for possible revision or development of technology-based limits on wastewater discharges (i.e., effluent limitations guidelines and standards (ELGs)). 83 Fed. Reg. 19281 (May 2, 2018). EPA releases a new ELG plan every two years, and the process bears watching because it cuts across all industry types (there are 59 industries with final ELGs in place) and provides some perspective on EPA's assessment of pollutants of concern and emerging technologies to address those pollutants.

Traditionally, EPA uses its ELG plans to indicate which individual industries will be evaluated for possible revision of existing ELGs or development of new ELGs. But the final 2016 Plan takes an unusual approach by focusing on several holistic studies, rather than more detailed study of selected industries. The Plan announces EPA's intention to conduct two industry-wide studies, one on nutrients and the other on per- and polyfluoroalkyl substances (commonly known as PFASs). According to EPA, PFASs can accumulate in the human body and certain PFASs have caused tumors and immunological effects in laboratory animals. EPA states that the "near term goal of [the ELG] studies is to identify the extent to which these pollutants are discharged from industrial categories." 2016 Plan, p. 1-1.

As far as the nutrients study, EPA's primary objective is to identify industries discharging nutrients and evaluate whether there is any potential to reduce those discharges. 2016 Plan, p. 7-1. If EPA identifies industries discharging nutrients, they may become candidates for ELG development or revision in future ELG rulemakings. While EPA is well aware that the largest sources of nutrients in waterbodies are nonpoint sources such as stormwater runoff, the nutrients study shows EPA's determination to address all sources of nutrients, even if the contribution of nutrients is relatively minor when compared to the contribution from nonpoint sources.

The focus on nutrients also indicates a shift from EPA's traditional focus on discharges containing toxic pollutants. For decades, EPA has computed a metric known as "toxic-weighted pound equivalents" (TWPE) for pollutants of concern from individual industries. Through this metric, discharges of toxic pollutants (such as mercury) are given more "weight" than discharges of less toxic substances (such as aluminum) for purposes of informing regulatory decision-making. But nutrients are not high in toxicity. EPA acknowledges this and defends its focus on nutrients despite their relatively low TWPE values: "EPA disagrees . . . that TWPE is an appropriate indicator of nutrient discharges. Toxicity is not the pollutants' primary environmental impact. Excessive nitrogen and phosphorus in our waters can lead to a variety of problems including eutrophication and harmful algal blooms, with impacts on drinking water, recreation and aquatic life." 2016 Final ELG Plan Response to Comments, p. 27. With this statement, EPA appears to be ushering in an approach that moves toward a more holistic evaluation of pollutants and their effects on the environment.

The PFASs study will focus on discharges from industrial categories that may be using long-chain PFASs, as well as industries that may produce or use short-chain PFASs. 2016 Plan, p. 7-2. Other EPA offices are working to phase out the use of long-chain PFASs, and there is an increasing research focus on PFASs, particularly as to their potential presence in drinking water. In May 2018, EPA hosted a National Leadership Summit on PFASs. At the Summit, former EPA Administrator Pruitt announced that EPA would take the following actions to address PFASs:

  • EPA will initiate steps to evaluate the need for a maximum contaminant level (MCL) for two PFASs of concern, perfluorooctanoic acid (PFOA) and perfluorooctane sulfonate acid (PFOS).
  • EPA will begin the process to propose designating PFOA and PFOS as "hazardous substances" through one of the available statutory mechanisms, including potentially CERCLA Section 102.
  • EPA will develop groundwater cleanup recommendations for PFOA and PFOS at contaminated sites.
  • EPA will work in close collaboration with federal and state partners to develop toxicity values for certain PFASs.

The Office of Water may or may not end up promulgating ELGs related to PFASs. Actions of other EPA offices may be deemed adequate, or the results of the ELG-based study may show very limited discharges of these compounds.

Whether or not you are affected by EPA's new areas of study, it is a good idea to review each ELG Plan for information related to individual industries for a number of reasons. First, EPA uses data reported by industry members (both Toxic Release Inventory data and Discharge Monitoring Report data) to estimate pollutant loadings for each industry. If an industry member has erroneously reported a value (e.g., by using the wrong unit of measure), or if EPA misinterprets what is being reported, then the loadings attributed to an industry may be overstated. Any overestimate of pollutant loadings creates a greater likelihood that the industry will be targeted for ELG revisions. Second, EPA has compiled a database of treatment technologies applicable to industrial wastewaters. According to EPA, the database contains data for 54 treatment technologies and technology performance data for 27 out of 59 industry categories, with removal performance for 195 pollutants. 2016 Plan, p. 4-12. This database is a developing resource that may be useful in identifying industry trends and getting ahead of the game on technology adaptation and selection. The database is available at https://www.epa.gov/eg/industrial-wastewater-treatment-technology-database-iwtt.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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