Action Please By:
December 5, 2007

The U.S. Environmental Protection Agency (EPA or Agency) released its Preliminary 2008 Effluent Guidelines Program Plan in the October 30 Federal Register.  The Preliminary Plan contains the results of EPA’s 2007 annual review of existing effluent guidelines and pretreatment standards and the Agency’s evaluation of indirect dischargers that do not have categorical pretreatment standards.  It also outlines EPA’s preliminary plan for performing the 2008 annual reviews of effluent guidelines and identifying potential new categories for national pretreatment standards.

This Regulatory Alert summarizes the Preliminary Plan and seeks member input on questions and issues raised in the Plan.  EPA is requesting comments on the Preliminary Plan, especially on the detailed studies being conducted for four categories:  Steam Electric Power Generating, Coal Mining, Oil and Gas Extraction, and the Health Services Industry.  EPA’s study of the Health Services Industry will be focused on mercury discharges from dental clinics and discharges of pharmaceuticals, two issues on which NACWA will provide substantial comments.

NACWA plans to submit comments on the Preliminary Plan by the December 31, 2007 deadline.  Members are asked to contact Cynthia Finley at 202/296-9836 or This e-mail address is being protected from spambots. You need JavaScript enabled to view it This e-mail address is being protected from spam bots, you need JavaScript enabled to view it with their input by December 5 for inclusion in NACWA’s comments. 

Results of EPA’s 2007 ELG Annual Review

In 2007, EPA conducted screening- level reviews of all 56 industrial categories with existing effluent guidelines and pretreatment standards.  For these screening level reviews, data is collected and analyzed to determine the categories that could present the greatest risk to human health and the environment.  EPA’s use of toxic weighting factors (TWFs) to assess risk under the ELG program is currently under review.  A report on the TWF methodology is expected to be released before the publication of the final 2008 ELG plan. 

Based on the 2007 annual review, EPA is not identifying any existing categories for ELG rulemaking.  EPA did identify two categories for preliminary category review in 2008, Centralized Waste Treatment and Waste Combustors, based on the fact that it has been seven years since effluent guidelines and pretreatment standards were issued for these high-hazard rating categories.  EPA completed its preliminary review of the Textile Mills category and determined that it is a low priority for effluent guideline revision.  A preliminary category review of the Ore Mining and Dressing category is continuing, with EPA seeking more information on pollutant discharges and treatment technology. 

Detailed studies of four previously identified categories – Steam Electric Power Generating, Coal Mining, Oil and Gas Extraction, and Hospitals – will also continue.  The current Hospitals category only applies to direct discharging facilities with over 1000 beds, but most hospitals are indirect dischargers and currently have no  pretreatment standards.  All hospital facilities are therefore being considered in a detailed study for a potential new category, Health Services Industry, along with dental clinics, long-term care facilities, veterinary clinics, and medical laboratories and diagnostic centers.  For these detailed studies, EPA is collecting data on pollutant discharges, economic factors, treatment technology, and pollution prevention, and asking for public comments and any additional information. 

For categories that do not currently have categorical pretreatment standards, EPA evaluated the pass – through and interference potential of pollutants discharged to publicly owned treatment works (POTWs).  EPA did not identify any categories further based on the 2007 assessment.  However, as stated above, study of the Health Services Industry will continue to determine the potential of pass – through or interference.

EPA is continuing to determine if ELGs should be established for the Drinking Water Treatment and Airport Deicing categories, which were both identified as potential new categories in 2004.  EPA is also evaluating possible ELGs for the Construction and Development category because it was ordered to do so in a 2006 district court decision. 

EPA Requests Comments on Dental Mercury, Unused Pharmaceuticals

EPA’s detailed study of the Health Services Industry to date has shown that the major pollutants of concern from health facilities are solvents, mercury, pharmaceuticals, endocrine-disrupting compounds (EDCs), and biohazards (items contaminated with blood).  To respond to concerns raised in public comments, EPA is focusing on mercury discharges from dental facilities and disposal of unused pharmaceuticals (referring to unused, expired, or unwanted medications, but not excreted medications) from all facilities in the category.  There are over 475,000 facilities in the Health Services Industry category, including approximately 130,000 dental offices.  EPA is currently surveying the category to collect data about pollutant discharges and treatment techniques, and is also requesting comments and information from the public. 

The Preliminary Plan discusses the significance of dental amalgam as a mercury source, referencing a 2002 NACWA report, Mercury Source Control and Pollution Prevention Program Final Report, which concluded that dental clinics are the main source of mercury discharges to POTWs, and a 2003 estimate by the American Dental Association (ADA) that dental offices contribute 50 percent of the mercury discharges to POTWs.  EPA has looked at the current use, effectiveness, and costs of best management practices (BMPs) and control technologies, such as amalgam separators, and is seeking more information to answer specific questions, including the following:

• In states and localities without dental mercury guidance or requirements, what do dental offices do to control mercury discharges, and what are the costs?
• How widely used and effective are the ADA’s recommended BMPs?
• Are BMPs or amalgam separators effective in reducing mercury in POTW influent, effluent, and/or sludge? EPA is interested in studies that measure mercury concentrations before and after BMP or amalgam separator implementation.
• What is the cost or burden to POTWs of implementing BMPs or amalgam separator requirements?

NACWA’s nearly complete report on its three year low-level mercury sampling effort will factor prominently in the Association’s comments on this aspect of the Preliminary Plan. 

For pharmaceuticals, the Preliminary Plan notes that studies have found pharmaceuticals in waters downstream of POTWs, but that there is little information about the origin and volume of pharmaceuticals in municipal wastewater.  Facilities in the Health Services Industry may dispose of unused pharmaceuticals down the drain or toilet.  EPA is looking for information on disposal policies, especially how much and how often unused pharmaceuticals are disposed of into wastewater, and what drives these practices.  Specific questions EPA is trying to answer include the following:

• What policies, procedures, or guidelines govern the disposal of unused pharmaceuticals from health services facilities?
• What are the barriers that prevent the reduction or elimination of unused pharmaceutical disposal to wastewater? In particular, how does the Controlled Substances Act complicate drug disposal solutions?
• Are any technologies or BMPs available to control or eliminate disposal of unused pharmaceuticals to wastewater? What is the cost of these technologies or BMPs, and how effective are they?

The Preliminary Plan recognizes that local programs and BMPs may be sufficient to prevent pollution from both dental amalgam and unused pharmaceuticals, without federal regulation.  EPA’s Plan also notes that some states and localities already have requirements for amalgam separators or BMPs, and that the ADA includes amalgam separators in BMPs for its members.  NACWA’s comments will likely focus on the success of some of these local programs that are already in place, and highlight that there is a significant component of both influent mercury and pharmaceuticals from residential sources over which POTWs have no authority.  

Judge Rules in EPA’s Favor in ELG Plan Litigation

Though unlikely to affect EPA’s current efforts to finalize the Preliminary Plan, EPA’s implementation of the ELG program was recently affirmed in an October 29, 2007 decision by the U.S. Court of Appeals for the Ninth Circuit in Our Children’s Earth Foundation (OCEF) v. EPA.  In this case, OCEF appealed a 2005 district court decision that EPA has significant discretion in implementing the ELG program.  NACWA intervened in the case on the side of EPA, arguing that the Agency is conducting the ELG program properly and consistently with Congress’ intent.  The appeals court decision found that EPA has discretion to determine the timing of ELG plan publication and can identify potential new categories of pollution sources without necessarily developing new effluent guidelines for them.  In addition, ELGs are not required to be reopened and revised every five years.  The appeals court remanded one issue to the district court, whether EPA has “completely abandoned” a technology-based approach to reviewing existing ELGs, as alleged by OCEF, in favor of a hazard-based (or water quality-based) approach.  The appeals court decision indicates that EPA will likely continue running the ELG program as it has in the past, but the one remanded issue result in changes in future plans.

NACWA Seeks Member Input for Comments on Preliminary Plan

NACWA plans to submit comments to EPA about the Preliminary Plan by the December 31 deadline.  NACWA’s comments will focus on the detailed Health Services Industry study and its focus on mercury from dental clinics and unused pharmaceuticals.  The vast number of potentially regulated entities alone – over 475,000 facilities nationwide in this category – and the potential burden this could pose for pretreatment programs will also be a focus of the NACWA comments.  Members with input on these or any other issues raised by the Preliminary Plan should contact Cynthia Finley at 202/296-9836 or cfinley@nacwa.org This e-mail address is being protected from spam bots, you need JavaScript enabled to view it by December 5 with comments or questions.  Members that submit their own comments to EPA regarding the Preliminary Plan are also encouraged to send their comments to NACWA.