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Subject

Docket ID No. OW-2005-0024

Enclosed for filing please find the Natural Resources Defense Council

Inc\'s Comments on the above-referenced ANPR, Availability of, and

Procedures for, Removal Credits.

Sincerely,

Frances Dubrowski

Law Office

**FRANCES A. DUBROWSKI**

**3215 KLINGLE RD., N.W.**

**WASHINGTON, D.C. 20008**

**\_\_\_**

# TELEPHONE (202) 295-9009

# FACSIMILE (202) 342-0340

**E-MAIL dubrowski@aol.com**

December 13, 2005

Comments Clerk for Removal Credits ANPR

Water Docket MC 4101T

U.S. Environmental Protection Agency

1200 Pennsylvania Ave., NW

Washington, D.C. 20460

Attn: Docket ID No. OW-2005-0024

Dear Comments Clerk:

Enclosed please find the Natural Resources Defense Council, Inc.'s
("NRDC's") Comments on EPA's Advanced Notice of Proposed Rulemaking
Regarding Availability of, and Procedures for, Removal Credits, 70 Fed.
Reg. 60199 (October 14, 2005).

Please direct questions or concerns about the enclosed to Nancy Stoner,
Esq., Attorney for NRDC, 1200 New York Ave., N.W., Suite 400,
Washington, D.C. 20005. 202-289-2394.

Sincerely,

Frances A. Dubrowski

Attorney for NRDC

COMMENTS

OF THE

NATURAL RESOURCES DEFENSE COUNCIL ("NRDC")

ON

EPA'S ADVANCED NOTICE OF PROPOSED RULEMAKING

REGARDING

AVAILABILITY OF, AND PROCEDURES FOR, REMOVAL CREDITS

70 Fed. Reg. 60199 (October 14, 2005)

*Submitted by:*

*Frances A. Dubrowski, Esq.*

*and*

*Nancy Stoner, Esq.*

*Attorneys for NRDC*

# December 13, 2005

These comments address the two issues on which EPA has sought
comment: 1) pollutants eligible for removal credits, and 2) the
definition of "consistent removal."

1\. Pollutants eligible for removal credits.

EPA proposes to expand the list of pollutants eligible for removal
credits by adding 20 more pollutants, which EPA has determined "would
not require regulation under Part 503." 70 FR 60201.

Three questions arise. First, what is the scientific data behind EPA's
proposal and how up-to-date is it? EPA does not cite any evidence in its
ANPR; hence, it is unclear how EPA determined that these pollutants
might not present a health or environmental hazard. In 1999, however,
EPA acknowledged that a substantial determinant of whether or not to
proceed with section 405 sludge regulations turned on whether or not the
pollutant in question had surfaced in 10% of the samples in the National
Sewage Sludge Survey. 64 FR 39584-39585 (July 22, 1999). As NRDC told
EPA then, the National Sewage Sludge Study, published in 1988, "does not
establish that these pollutants are so scarce today, given the
increasing diversity and volume of chemicals used over the past decade."
(See NRDC Comments, submitted November 19, 1999.) Nor, for that matter,
does the 1988 study establish that the same pollutant would not be
regarded as more significant today, given more modern sampling
technology and greater information on the hazards posed by pollutants.

Second, is EPA's decision to treat these 20 pollutants in this manner
based purely on the human health or ecological effects of each pollutant
or is it also, at least in part, based on the ubiquity of the pollutant?
The Clean Water Act specifies sludge regulations "shall be adequate to
protect public health and the environment from any reasonably
anticipated adverse effects of each pollutant." 33 U.S.C. 1345(d). This
language requires EPA to protect against adverse effects of pollutants
even if the effects may occur only at a subset of POTWs.

Finally, why has EPA chosen to address these pollutants by means of
listing under Appendix G, Table II rather than by actual sludge disposal
standards? The decision to authorize removal credits increases the
public's potential environmental exposure to a pollutant beyond that
which occurs from EPA's decision not to issue section 405 sludge
standards for that pollutant: not only will the POTW be free from sludge
disposal regulations, but industrial users may also reduce pollution
controls that would otherwise be required to be in place. It is
especially important, therefore, that such a decision accord with
statutory requirements. The Clean Water Act establishes a clear
regulatory scheme for establishing removal credits: EPA has a mandatory
duty to issue sludge standards for any pollutants which "may be present
in sewage sludge in concentrations which may adversely affect public
health or the environment...." 33 U.S.C. 1345(d). Once the standards are
in place, EPA may authorize a discretionary removal credit which "does
not prevent sludge use or disposal by \[the POTW\] in accordance with
section 1345" of the Act. 33 U.S.C. 1317(b). In place of this clear
statutory scheme, EPA has substituted an alternative of its own
crafting: setting "upper concentrations" in Appendix G, Table II, in
lieu of actual sludge standards and then authorizing removal credits on
the basis of the Table II list. EPA's ANPR is curiously silent on both
the rationale for the Table II list and on how this agency-created
approach to removal credits comports with the statute. We submit that it
does not.

2.  Definition of "consistent removal."

EPA seeks 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 \[U.S. Court of Appeals for
the Third Circuit\]." 70 FR 60202. We reserve the right to comment on
any *specific* proposal for changing the current provision, should EPA
or other commenters develop one.

In addition, we note that EPA's ANPR is misleading. For example, the
notice states, "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." 70 FR
60201. To the contrary, the 1999 proposal explicitly sought comment on
whether to delete the mathematical formula for demonstrating consistent
removal in 40 CFR 403.7(h)(2), and NRDC, among others, commented.

As the record of that rulemaking reiterated, the Third Circuit struck
down EPA's excessively broad definition of "consistent removal" in 1986.
For convenience, EPA simply replaced its illegal definition with the
pre-existing \[1981\] one. The 1981 definition represented an
improvement over the rejected rule insofar as it did not allow credit
for removals achieved only 50% of the time -- a level of pollution
control the Third Circuit found inadequate. However, as EPA conceded,
"The preamble to the notice reinstating the former regulation did not
discuss whether the reinstated regulation satisfied the Court's
definition of consistency." 64 FR 39586 (July 22, 1999).

In 1999, EPA had proposed clarifying that removal credits cannot be
obtained where a user discharges upstream from a combined or sanitary
sewer overflow unless the wastes are consistently treated (e.g., by
ceasing or containing the discharge). 64 FR 39586-39587. NRDC had
supported this proposal. (See NRDC Comments submitted November 19,
1999.)

EPA's final rule did not contain the proposed restriction; EPA claimed
it lacked data on the real-world impact of the proposal:

"EPA decided not to adopt the proposed revisions which would have
required that removal credits be limited to the percentage of the
pollutant that was removed during the Overflow event. EPA does not have
sufficient information to determine the impacts of such a change on
existing programs using removal credits and is concerned that adoption
of this change may have disrupted these programs with little
environmental benefit." 70 FR 60166 (October 14, 2005).

Assuming, purely for argument's sake, that this rationale is sufficient
to justify EPA's failure to follow through in the final rule and curtail
removal credits where there are untreated overflows, ensuing events now
make it imperative for EPA to so restrict removal credits. EPA
acknowledges that, until now, "very few POTWs expressed interest in
removal credits." 64 FR 39586 (July 22, 1999). However, EPA today
suggests both expanding the list of eligible pollutants and making
other, unspecified "modifications to facilitate the granting of
\[removal credit\] authority." 70 FR 60201 (October 14, 2005). Indeed,
EPA invites a further rulemaking proceeding to achieve those very aims.
Should EPA undertake such a proceeding, that rulemaking would afford
both the opportunity to gather any information EPA believes it currently
lacks with respect to consistent removal in overflow and bypass
situations and, by potentially expanding the use of removal credits,
increase the import of EPA's decisions on the definition of "consistent
removal." In other words, EPA should not "simplify" or otherwise
"modify" the definition of consistent removal without restricting
removal credits in overflow situations as EPA had proposed to do in the
1999 proceeding.