# WATER POLLUTION

EPA Has Improved Its
Review of Effluent Guidelines but Could
Benefit from More
Information on
Treatment Technologies Report to the Ranking Member,
Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, House of Representatives

September 2012

GAO-12-845 United States Government Accountabilit y Office 

# GAOUnited States Government Accountability Office Highlights of GAO

- 12

- 845 , a report to the Ranking Member, Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, House of Representatives September 2012 

# WATER POLLUTION

EPA Has Improve d Its Review of Effluent Guidelines but Could Benefit from M ore Information on
Treatment Technolog ies

Why GAO Did This Study

Under the Clean Water Act

, EPA has made significant progress in reducing wastewater pollution from industrial
facilities

. EPA currently regulates

58 industrial categories , such as petroleum refining, fertilizer manufacturing, and coal mining, with technology

- based regulations called effluent guidelines. Such guidelines are applied in permits to limit the pollutant s that facilities may discharge

. The
Clean Water Act also calls for EPA to revise the guidelines when appropriate

. EPA has done so, for example, to
reflect advances in treatment technology or changes in industries

. GAO was asked to examine (1) the

process EPA follows to screen and review industrial categories potentially needing new or revised guidelines and the results of that process from 200 3 through 2010 ; (2 ) limitations to this process, if any

, that could hinder EPA’s
effectiveness i n advancing the goals of
the Clean Water Act ; and (3 ) EPA’s

actions to address any such limitations.

GAO analyzed the results of EPA’s screening and review process from 2003 through 201 0, surveyed state
officials

, and interviewed EPA officials

and experts to obtain their views on
EPA’s process and its results.



## What GAO Recommends

GAO is making recommendations to improve the effectiveness of EPA’s effluent guideline s program by expanding its screening phase to

better assess hazards and advances in treatment technology. EPA agreed with

two recommendations in principle and said it is making progress on them

, but

said that one is not workable given current agency resources. GAO

believe s improvements can be made

. 

## W hat GAO Found

The Environmental Protection Agency ( EPA ) us es a two

- phase process to identify industrial categories potentially need ing new or revised effluent guidelines to help reduce their pollutant discharges. EPA’s 2002 draft Strategy for National Clean Water Industrial Regulations was the foundation for EPA’s

pro cess

. In the first, or “screening,” phase, EPA uses data from two EPA

databases to rank industrial categories according to the total toxicity of their

wastewater . Using this ranking, public comment s, and other considerations, EPA

has identifie d relatively few industrial categories posing the highest hazard for the next, or “further review

, ” phase. In th is further review phase, EPA evaluates th e categories to identify those that are appropriate for new or revised guidelines because treatment technologies are available to reduce pollutant discharge s

. Since 200 3 , EPA has regularly screened the 58 categories for which it has

issued effluent guidelines

, as well as some potential new industrial categories

, and it has identified 12 categories for its further review phase . Of the se 12 categories, EPA selected 3 for updat ed or new effluent guidelines

. EPA chose

not to set new guidelines for the others.

Limitations in EPA’s screening phase may have led it to overlook some industrial categories that warrant further review for new or revised effluent guidelines

. Specifically, EPA has relie d on limited hazard data that may have affected its ranking of industrial categories. Further, during its screening phase

, EPA has not

consider ed the availability of advanced treatment technologies for most industrial categories

. Although its 2002 draft strategy recognized the importance of technology data , EPA has stated that such data were too difficult to obtain during the screening phase and , instead, considers them for the few categories that
reach further review

. O fficials responsible for state water quality programs and

e xperts on industrial discharges

, however, identified catego ries they believe EPA
should examine for new or updated guidelines to reflect changes in th eir

industri al processes and treatment technology capabilities

. According to some

e xperts

, consideration of treatment technologies is especially important for older effluent guidelines because changes are more likely to have occurred in either the industrial categories or the treatment technologies, making it possible that new, more advanced treatment technologies are available

. Recognizing th e limitations of its hazard data and overall screening approach

, EPA has begun revising its process but has not assess ed other po ssible sources of information it could use to improve the screening phase . In 2012

, EPA supplemented the hazard data use d in screening with four new data sources

. EPA is also developing a regulation that, through electronic reporting, will

increase the com pleteness and accuracy of its hazard data. In 2011, EPA also began to obtain recent treatment technology literature

. According to EPA, the agency will expand on this work in 2013

. Nonetheless

, EPA ha s not thoroughly

examined other usable sources of information on treatment technology, nor has it reassessed the role such information should take in its screening process.

W ith out a more thorough and integrated screening approach that both uses improved hazard data and considers information on treatment technology, EPA

cannot be certain that the effluent guidelines program reflect s advances in the

treatment technologies used to reduce pollutants in wastewater. View GAO

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- 845

. For more information,

contact David Trimble at (202) 512

- 3841 or trimbled@gao.govPage i GAO

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- 845 EPA's Effluent Guidelines Program 

### Letter 1

Background 5

EPA’s Two -Phase Screening and Review Process Has Identified Few Industrial Categories for New or Revised Effluent

Guidelines 16

Focus on Limited Hazard Data to the Exclusion of Technology Information May Have Led EPA to Overlook Industrial Categories for Pollution Reduction 28

EPA Is Add ing Hazard Data Sources but Is Not Fully Using Potential Sources of Information on Treatment Technologies 36

Conclusions 40

Recommendations for Executive Action 41 Agency Comments and Our Evaluation 41

Appendix I Scope and Methodology 45

Appendix II Survey of State Water Quality Permit Writers and Analysis of

Views about Whether EPA Should Revise Effluent Guidelines 49

Appendix III Additional Details on Industrial Categories with Effluent

Guidelines 62

Appendix IV Comments from the Environmental Protection Agency 65

Appendix V GAO Contact and Staff Acknowledgments 67

Tables

Table 1: Industrial Categories with Effluent Guidelines and Pretreatment Standards as of August 2012 6 Table 2: Standards for Effluent Guidelines for Direct Dischargers 13 Table 3: Consideration of Treatment Technology during Further Review and Resulting Key Agency Decisions 24 

# ContentsPage ii GAO

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### Table 4: Regulated Industrial Categories Excluded in the Screening Phase from Further Review, 20 03 -2010 33 Table 5: State Officials’ Responses to the Key Questions in Our Survey for the Industries Discharging the Greatest Amoun t
of Toxic Effluent in Their State 52

Table 6: State Officials’ Views about Whether EPA Should Revise

the Effluent Guidelines for th e Industries Discharging the Greatest Amount of Toxic Effluent in Their State, by the Four Factors EPA Considers When Deciding Whether to

Revise Effluent Guidelines 55 Table 7: Years Effluent Guidelines Were Promulgated and Revised for Industrial Categories and Years the Categories Were in the Top 95 Percent of Total Reported Hazard, 2004-2010 62

Figures

Figure 1: Industrial Facilities Subject to Regulation of Discharges 9 Figure 2: Industrial Categories Responsible for 95 Percent of the Total Reported Hazard and Considered for Possible

Fu rther Review, 2003- 2010 18 Figure 3: Criteria Used by EPA during Screening Phase to Exclude Industrial Categories from Further Review 21 Figure 4: Number of Times Existing Industrial Categories Were in the Top 95 Percent of Total Reported Hazards in the Four Biennial Screening Phases from 2003 through 2010 32 Figure 5: Decision Tree of State Officials’ Views of Whether EPA

Should Revise E ffluent Guidelines for Specific Industrial Categories 58

Abbreviations

EPA Environmental Protection Agency

NPDES National Pollutant Discharge Elimination S ystem

This is a work of the U.S. government and is not subject to copyright protection in the United States. The published product may be reproduced and distributed in its entirety without further permission from GAO. However, because this work may contai n copyrighted images or other material, permission from the copyright holder may be necessary if you wish to reproduce this material separately.Page 1 GAO

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### United States Government Accountability Office Washington, DC 20548



### September 10, 2012

The Honorable Timothy H. Bishop Ranking Member

Subcommittee on Water Resources and Environment Committee on Transportation and Infrastructure House of Representatives

Dear Mr. Bishop:

Forty years after the Clean Water Act set a national goal of eliminating the discharge of pollutants into navigable U.S. waters, the Environmental Protection Agency (EPA) has made significant progress in reducing pollution from industrial facilities; nevertheless, pollution from these
facilities continues to cause concern. 1



### One of EPA ’ s main responsibilities under the act is to regulate “ point

source ” pollution

— that is, pollution such as effluent or wastewater coming from a discrete point, such as a pipe from an industrial facility. The Clean Water Act directed EPA to establish effluent guidelines to achieve pollutant reductions using specific treatment technologies or changes in a

f acility ’ s production processes. In establishing and revising effluent EPA ’ s actions to reduce this pollution have included establishing national technology

- based regulations

— or effluent guidelines

— for separate industrial categories, such as petroleum refining, fertilizer manufacturing, coal mining, and metal finishing. EPA issued the vast majority of these regulations in the 1970s and 1980s and has revised most of them; revisions may range from changes in testing methods to establishment of more stringent standards. Relatively few effluent guidelines have been revised or created in recent years, however, and environmental advocacy groups continue to raise concerns because industrial facilities annually discharge hundreds of billions, and perhaps trillions of pounds of pollutants to U.S. waters. According to EPA, industrial pollutants may contribute, in part, to impaired water quality; harm aquatic life; and limit the ways in which people can safely use the nation ’ s waters.

1 The Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92

- 500, § 2, 86 Stat. 816, codified as amended at 33 U.S.C. §§ 1251

- 1387 (2012) (commonly referred to as the Clean Water Act). For consistency throughout this report, we refer to the statute
and its amendments as the Clean Water Act.Page 2 GAO

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### guidelines, EPA is to assess (1) the performance and availability of the best pollution control technologies or pollution prevention practices for an industrial category; (2) the economi c achievability of those technologies; (3) non

- water

- quality environmental impacts, such as the energy required to reduce pollutants; and (4) other factors that the EPA Administrator deems appropriate, such as the risk posed by discharges. The legislative history of relevant provisions in the Clean Water Act suggests that effluent guidelines were expected to be revised and made more stringent over time to reflect technological advances.

To carry out its effluent guidelines program, EPA develops regulations setting national effluent guidelines, and states generally implement the program by applying limits in permits that they issue to specific facilities. Under the National Pollutant Discharge Elimination System (NPDES) program, all facilities that discharge pollutants from any point source into U.S. waters are required to obtain a permit, typically from their state or EPA region. Under the Clean Water Act, EPA has authorized 46 states to issue NPDES permits and retains the authority to issue permits for the

r emaining 4 states: Idaho, Massachusetts, New Hampshire, and New

Mexico. 2



### The Clean Water Act requires that after setting effluent guidelines, EPA is to annually review each existing effluent guideline

— that is, guidelines for regulated industrial categories

— to determine whether revising these guidelines would be appropriate. In addition, at least every 2 years, EPA is to identify industrial categories that do not have effluent guidelines but that discharge nontrivial amounts of toxic or certain other polluta nts. 3

2 In addition to the 46 states, the territory of the U.S. Virgin Islands is authorized to issue NPDES permits. The remaining territories and the District of Columbia are not authorized to issue these permits. 

### At least every 2 year s , EPA is required to publish schedules for its annual

review and revision of existing effluent guidelines and for promulgating effluent guidelines for any newly identified categories. The agency ’ s intent is to issue a plan every year, with preliminary plans to be issued in odd

3 A Senate committee report explaining the addition of this provision to the Water Quality Act of 1987, noted in part, “ [g]uidelines are required for any category of sources discharging significant amounts of toxic pollutants. In this use, ‘ significant amounts ’ does not require the Administrator to make any determination of environmental harm; any non

trivial discharges from sources in a category must lead to effluent guidelines. ” S. Rep. 99

- 50 at 24

- 25 (1985). See also 69 Fed. Reg. 53

, 707 (Sept. 2, 2004).Page 3 GAO

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- 845 EPA's Effluent Guidelines Program 

### years and final plans for effluent guidelines in even years. If EPA decides that an industrial category requires new or revised effluent guidelines, it generally establishes them through a regulatory process that involves proposing new effluent guidelines, obtaining public comment, making revisions, and publishing a final regulation.

Throughout much of the effluent guidelines program ’ s history, EPA ’s schedule for issuing effluent guidelines has been driven b y litigation and resulting consent decrees. 4



### As EPA ’ s regulatory efforts have reduced pollutants from industrial point sources over the past several decades, the agency has placed greater emphasis on what is now the primary reason for impairment of the

nation ’s waters, namely diffuse or nonpoint pollution, such as some agricultural runoff. In light of that change in emphasis and soon after issuing the draft strategy, EPA reduced staffing levels for the effluent guidelines program by about 40 percent, according to program officials. EPA issued its most recent effluent guidelines

— for airport deicing, a previously unregulated industry

— in May 2012. Before that, EPA ’ s most recent revisions of existing effluent guidelines were for concentrated In 2002, following extensive consultation with an advisory task force formed in response to a 1992 consent decree, EPA

issued a draft Strategy for National Clean Water Industrial Regulations

, outlining a new process by which it planned to meet the requirement to

review industries in the future to determine whether new or revised effluent guidelines were appropriate. The draft strategy calls for EPA to conduct an annual screening of industrial categories to consid er (1) the risks the industrial categories pose to human health or the environment; (2) the availability of treatment technology or other approaches to reduce the risk; (3) the cost, performance, and affordability of the technology; and (4) implementation and efficiency considerations. EPA derived these screening factors in part from the statutory requirements for developing or revising effluent guidelines. Following screening with available information, the draft strategy calls for EPA to conduct a further review of selected categories. The further reviews may take 1 or more years to complete. EPA has not finalized or formally updated its draft strategy, although according to EPA officials, the draft has served in part as the basis for the agency ’ s annual reviews of industrial categories after 2002.

4 Consent decrees are settlement agreements signed by the parties and entered, or approved, by a court; they are therefore enforceable by the courts.Page 4 GAO

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### animal feeding op erations in 2008 and construction and development in
2009. 5



### In this context, you asked us to review EPA ’ s effluent guidelines program. This report examines (1) the process EPA follows to screen and review industrial categories potentially in need of new or revised effluent limitation guidelines and the results of that process from 2003 through 2010; (2) limitations to this screening and review process, if any, that could hinder the effectiveness of the effluent guidelines program in advancing the goals of the Clean Water Act; and (3) what actions EPA has taken or could take to address limitations, if any, that exist. Most effluent guidelines have not been revised since the 1980s or

1990s.

To address our objectives, we reviewed the Clean Water Act and relevan t regulations, EPA ’ s 2002 draft strategy, effluent guidelines program plans, and associated supporting documents. We also reviewed EPA ’s screening decisions for all industrial categories and its further reviews for the 12 industrial categories selected thr ough screening from 2003 through

2010. 6

5 EPA stayed a portion of the guideline for the construction and d evelopment industrial category that established a numerical effluent limitation for turbidity, but other portions of the guidelines remain in effect. See 75 Fed. Reg. 68215 (Nov. 5, 2010), 40 C.F.R. pt. 450. 

### Our purpose was to identify those industries that EPA had only initially screened and those that received a further review, including an examination of available treatment technologies. We also documented the status of regulatory actions and other steps that EPA took for industries that it reviewed further. In addition, we interviewed officials in

EPA ’ s Engineering and Analysis Division to learn about the process the agency follows to screen and review industries potentially in need of new or revised effluent limitation guidelines. We then compared the steps specified in the draft strategy with the agency ’ s current process for screening and reviewing industries for possible revised guidelines. To better understand the steps in the current process as they apply to specific industrial categories, we conducted detailed interviews with EPA staff regarding 7 of the 12 industrial categories that EPA selected from 2003 onward for possible new or revised effluent guidelines. We chose 2003 because it was the year when EPA issued its first preliminary effluent guidelines plan after developing its 2002 draft strategy for

6 As of August 2012, EPA had not published a preliminary effluent guidelines program plan
for 2011.Page 5 GAO

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### screening and reviewing industries. We also conducted 17 interviews with

22 experts from academia, industry, nonprofit organizations, and state and local water quality agencies for their perspectives on EPA ’ s effluent guidelines program. We selected these experts from a list of approximately 50 individuals identified from a variety of sources, including

referrals fr om EPA, the Association of Clean Water Agencies, the National Association of Clean Water Agencies, and other experts; relevant academic literature; and litigation documents. Because we used a nonprobability sampling method to select experts, the results of our interviews with them cannot be generalized to all experts on the program, but the information derived from interviewing these experts provided illustrative observations and examples. We also surveyed the directors for water quality permits in the 46 s tates authorized to issue NPDES permits about the adequacy of current effluent guidelines ; the results of our analysis are not generalizable to all industrial categories in all states

. Using the results of the survey, we selected an industrial category tha t state officials said warranted revised effluent guidelines and interviewed

state officials to learn more about the reasons for their views. We also interviewed EPA officials about their plans, if any, related to those industries. Appendixes I and II present a more detailed description of our scope and methodology.

We conducted this performance audit from September 2011 to September 2012, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform t he audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Tens of thousands of industrial facilities directly discharge wastewater into the waters of the United States and are subject to permit limits on their discharges, which for certain industries are determined by effluent gui delines set by EPA under the Clean Water Act. For certain industries, EPA issues a similar type of regulation

— pretreatment standards

— applicable to facilities that are indirect dischargers; that is, their effluent goes to wastewater treatment plants, which then discharge the collected and treated wastewater into a water body. To establish pollutant control limits for different pollutants in these guidelines or standards, EPA groups industrial facilities into categories that have similar products or services. To date, EPA has issued effluent guidelines or pretreatment standards for 58 industrial categories. EPA has issued effluent guidelines for 57 of the 

# BackgroundPage 6 GAO

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### 58 categories and pretreatment standards for 35 of the 58 categories. 7

Table 1: Industrial Categories with Effluent Guidelines and Pretreatment Standards

as of August 2012 

### Table 1 lists industrial categories that are regulated by effluent guidelines and pretreatment standards. According to EPA, there are approximately 35,000 to 45,000 direct dischargers covered by effluent guidelines and about 10,000 facilities that discharge indirectly to wastewater treatmen t plants.

Industrial category Effluent guideline Pretreatment
standard

Airport deicing X

Aluminum forming X X

Asbestos manufacturing X

Battery manufacturing X X

Canned and preserved fruits and vegetables processing X X

Canned and preserved seafood processing X

Carbon black manufacturing X X

Cement manufacturing X

Centralized waste treatment X X

Coal mining X

Coil coating X X

Concentrated animal feeding operations X X

Concentrated aquatic animal production X

Construction and development X

Copper forming X X

Dairy products processing X

Electrical and electronic components X X

Electroplating X

7 Throughout this report, we use the term effluent guidelines to refer to effluent guidelines and pretreatment standards collectively. Some industrial categories are made up of direct dischargers, some of indirect dischargers, and some have a mix of both. Thirty

- four of the 58 industrial categories are regulated by both effluent guidelines and pretreatment standards because these categories comprise both direct and indirect dischargers. Twenty

- three industrial categories are regulated by effluent guidelines but not pretreatment standards, while the electroplating industrial category is regulated by pretreatment standards but not by effluent guidelines.Page 7 GAO

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- 845 EPA's Effluent Guidelines Program Industrial category Effluent guideline Pretreatment
standard

Explosives manufacturing X

Ferroalloy manufacturing X

Fertilizer manufacturing X X

Glass manufacturing X X

Grain mills X X

Gum and wood chemicals manufacturing X

Hospital X

Ink formulating X X

Inorganic chemicals manufacturing X X

Iron and steel manufacturing X X

Landfills X

Leather tanning and finishing X X

Meat and poultry products X

Metal finishing X X

Metal molding and casting X X

Metal products and machinery X

Mineral mining and processing X

Nonferrous metals forming and metal powders X X

Nonferrous metals manufacturing X X

Oil and gas extraction X X

Ore mining and dressing X

Organic chemicals, plastics, and synthetic fibers X X

Paint formulating X X

Paving and roofing materials (tars and asphalt) X X

Pesticide chemicals X X

Petroleum refining X X

Pharmaceutical manufacturing X X

Phosphate manufacturing X

Photographic X

Plastics molding and forming X

Porcelain enameling X X

Pulp, paper, and paperboard X X

Rubber manufacturing X X

Soap and detergent manufacturing X X

Steam electric power generating X X

Sugar processing XPage 8 GAO

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- 845 EPA's Effluent Guidelines Program Industrial category Effluent guideline Pretreatment
standard

Textile mills X

Timber products processing X

Transportation equipment cleaning X X

Waste combustors X X

Total 57 35

Source: GAO analysis of EPA data.



### Before an industrial facility discharges pollutants, it must receive a permit that is to, at a minimum, incorporate any relevant pollutant limits from

EPA ’ s effluent guidelines. Where needed to protect water quality as

determined by standards set by individual states, NPDES permits may include limits more stringent than the limits in the guidelines. NPDES permits for direct dischargers are issued by 1 of the 46 states authorized by EPA to issue them and by EPA elsewhere. Unlike di rect dischargers, indirect dischargers, which do not discharge to surface waters, do not require an NPDES permit. Instead, an indirect discharger must meet

EPA ’ s national pretreatment standards and may have to meet additional pretreatment conditions imposed by its local wastewater treatment plant. 8

8 Wastewater treatment plants generally must have a NPDES permit to operate. 

### Under the national pretreatment standards and conditions, an indirect discharger is required to remove pollutants that may harm wastewater treatment plant operations or workers or, after treatment and discharge, cause violations of the wastewater treatment plant ’ s permit. Figure 1 illustrates both types of facilities subject to regulation. 

# National Pollutant Discharge Elimination System PermitsPage 9 GAO

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- 845 EPA's Effluent Guidelines Program Figure 1: Industrial Facilities Subject to Regulation of Discharges



### To get an NPDES permit, industrial facilities ’ owners

— li ke any source discharging pollutants as a point source

— must first submit an application that, among other things, provides information on their proposed discharges. Water quality officials in authorized states and EPA regional offices responsible for the NPDES program in the four nonauthorized states review these applications and determine the appropriate limits for the permits. Those limits may be technology

- based effluent limits, water quality

- based effluent limits, or a combination of both. Technology

- based limits must stem from either effluent limitation guidelines, when applicable, or from the permit writer ’ s best professional judgment when no applicable effluent limitation guidelines are available. Using best professional judgment, permit writers are t o develop technology

- based permit conditions on a case

- by

- case basis, considering all reasonably available and relevant information, as well as factors similar to those EPA uses in developing guidelines for national effluent limitations. A permitPage 10 GAO

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### writer sh ould also set water quality

- based limits more stringent than technology

- based limits if necessary to control pollutants that could cause

or contribute to violation of a state ’ s water quality standards. To support each permit, permit writers are supposed to develop a fact sheet, or similar documentation, briefly summarizing the key facts and significant factual, legal, methodological, and policy questions considered. 9



### Facilities with NPDES permits are required to monitor their discharges for the pollutants listed in their permits and to provide monitoring repor ts with their results to their permitting authority (the relevant state, tribal, or territorial agency authorized to issue NPDES permits or, in nonauthorized locations, EPA). For facilities designated by EPA regional administrators and the permitting authorities as major facilities, the permitting authorities are in turn required to transfer the monitoring report data to EPA headquarters. These reports, known as discharge monitoring reports, are transmitted electronically and stored in an electronic database or reported in documents and manually entered into the electronic database for use by EPA in reviewing permit compliance. The fact sheet and supporting documentation also serve to explain to the facility, the public, and other interested parties the rationale and assumptions used in deriving the limitations in the permit.

10

9 EPA regulations require permit writers to document the reasoning behind a facility ’ s permit. A fact sheet is required to accompany the permit for facilities designated by EPA regional administrators and the permitting authorities to be major dischargers. A statement of basis is required for permits issued to all other facilities, which EPA considers minor facilities. For purposes of this report, we refer to both fact sheets and statements of basis

as “f act sheets. ” See EPA, NPDES Permit Writers Manual at 11

- 10, 40 C.F.R. §§ 124.7, 124.8, 124.56, 123.25 (2012). 

### Permitting authorities are not required to report the discharge monitoring results from all remaining facilities, known as minor fa cilities, to EPA but may do so. According to EPA, there are about 6,700 major and 40,500 minor facilities covered by NPDES permits.

10 EPA and the states are making a transition from one national database, known as the Permit Compliance System, to another known as the Integrated Compliance Information System: NPDES. The states are divided in their use of the two databases. Consequently, two databases contain discharge

- monitoring reports. In our report, however, we refer to them collectively as “ the database. ”Page 11 GAO

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### Facilities may also be required to report data to EPA ’ s Toxics Release Inventory on their estimated wastewater discharges. 11 

### This inventory

contains annual estimates of facilities ’ discharges of more than 650 toxic chemicals to the environment. One of the inventory ’ s primary purposes is to inform communities about toxic chemical releases to the environment, showing data from a wide range of mining, utility, manufacturing, and other industries subject to the reporting requirements. As such, although the inventory is unrelated to the NPDES program, the Toxics Release Inventory contains estimated discharges of toxic pollutants for many NPDES

- permitted facilities. Not all industrial categories covered by effluent guidelines

— the oil and gas industrial category, for example

— are necessarily required to report to the inventory.

Under the Clean Water Act, EPA must establish effluent guidelines for three categories of pollutants

— conventional, toxic, and nonconventional pollutants

— and several levels of treatment technology. As defined in

EPA ’ s regulations, conventional pollutants include biological oxygen

demand

, 12 

### total suspended solids, 13 

### fecal coliform bacteria, 14 

### oil and grease, and pH. 15

11 Specifically, certai n facilities that manufacture, process, or otherwise use any of the listed individual chemicals and chemical categories are required to report annually to EPA and their respective state those chemicals used above threshold quantities, the amounts
released to the environment, and whether the releases entered the air, water, or soil. 42 U.S.C. § 11023 (2012). 

### The Clean Water Act designates toxic pollutants as

12 Biological oxygen demand is a measure of the oxygen used during decomposition of organic material over a specified period (usually 5 days) in a wastewa ter sample; it represents the readily decomposable organic content of wastewater.

13 A measure of filterable solids present in a sample, as determined by the method specified in 40 C.F.R. pt. 136.

14 Fecal coliform are bacteria whose presence indicates that water may be contaminated by human or animal wastes.

15 A measure of the hydrogen ion concentration of water or wastewater expressed as the negative logarithm of the hydrogen ion concentration in milligrams per liter. A pH of 7 is neutral, a pH less than 7 is acidic, and a pH greater than 7 is basic. 

# Effluent Guidelines ProgramPage 12 GAO

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### those chemicals listed in a key congressional committee report, 16 

### which contains 65 entries, including, arsenic, carbon tetrachloride, and mercury, as well as groups of pollutants, such as halomethanes. 17 

### Nonconventional pollutants are any pollutants not designated as a conventional or toxic pollutant; for example, EPA has developed limitations for such nonconventional pollutants as chemical oxygen demand, 18



### The act authorizes EPA to establish effluent limits for these three pollutant categories according to several standards; the standards generally reflect increasing levels of treatment technologies. A treatment technology is any process or mechanism that helps remove pollutants from wastewater and can include filters or other separators, biological or

bacteria

- based removal, and chemical neutralization. Legislative hi story of the Clean Water Act describes the expectation of attaining higher levels of treatment through research and development of new production processes, modifications, replacement of obsolete plans and processes, and other improvements in technology, taking into account the cost of

treatment. total organic carbon, and the nutrients nitrogen and phosphorus.

19

16 See Clean Water Act §307(a)(1), codified at 33 U.S.C. §1317(a)(1) (2011); see also 33 U.S.C. § 1362(13) (defining toxic pollutant). The list appears in the Code of Federal Regulations at 40 C.F.R. § 401.15. The committee report list was developed from a 1976 consent decree signed with the Natural Resources Defense Council, an environmental group, to resolve litigation that, among other things, sought to compel EPA to expand the list of toxic pollutants promulgated under the act. The consent decree was entered in NRDC et al. v. Train, 6 ELR 20588, (D.D.C. 1976). The statute authorizes EPA to revise
the list. 

### Under the act, the effluent limits do not specify a particular technology to be used but instead set a performance level based on one or more particular existing treatment technologies. Individual facilities

then have to meet the performance level set but can choose which technology they use to meet it.

17 Human

- made halomethanes are most notably used as refrigerants, solvents, propellants, and fumigants.

18 Chemica l oxygen demand is a measure of the oxygen

- consuming capacity of inorganic and organic matter present in wastewater.

19 See, e.g., Senate Consideration of the Report of the Conference Committee , October 4, 1972 (Statement of Sen. Muskie), reprinted in Cong. Research Serv., A Legislative History
of the Water Pollution Control Act Amendments of 1972 , at 169

- 70 (1978); S. Comm. on Public Works, Water Pollution Control Act Amendments of 1972 , S. Rep. No. 92

- 414, at
50

- 51 (1971), reprinted in Cong. Research Serv., A Legislative History of the Water
Pollution Control Act Amendments of 1972 , at 7669

- 70 (1978).Page 13 GAO

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### Under the act, EPA was to issue initial guidelines for existing facilities on

the basis of the “ best practicable control technology currently available ” for conventional, toxic, and nonconventional pollutants

— guidelines to be achieved by 1977

— followed by guidelines set on the basis of “ best available technology economically achievable ” for toxic and nonconventional pollutants and “ best conventional pollutant control technology ” for conventional pollutants. The act also called for guidelines

known as “ new source performance standards, ” which would apply to new facilities starting operations after such standards were proposed. When permitting authorities develop a permi t, they apply standards most appropriate to a given facility: For example, a new facility would receive a permit with limits reflecting the new source performance standards. Existing facilities would generally receive permits with limits reflecting the

bes t conventional technology and best available technology, but where those standards have not been issued, permit limits would reflect best practical treatment. Table 2 shows the different levels of treatment established in the act and the category of pollutant to which they apply.

Table 2: Standards for Effluent Guidelines for Direct Dischargers

Standard Pollutants Basis for treatment level Entities subject to regulation

Best practicable technology currently available Toxics, nonconventional,
and conventional The average of the best performances of facilities within the industry Existing industrial facilities during the
Clean Water Act’s initial implementation phase (1977

- 89)

Best conventional pollutant control technology Conventional The most stringent technology option that passes tests as feasible and economically achievable Existing industrial facilities, after
1989

Best available technology economically achievable a

Toxics and
nonconventional Level to be set with reference to the best perfo rmer in any industrial category and determined to be economically achievable for the category or subcategory Existing industrial facilities, after
1989

New source performance
standards b

Toxics, nonconventional,
and conventional The most stringent controls attainable through the application of the best demonstrated control technology that does not pose a barrier to entry New industrial facilities

Source: GAO analysis.

a If EPA has not established an applicable best conventional technology effluent guideline, then the best practicable treatment effluent guideline still applies.

b If EPA has not established an applicable best available technology effluent guideline, then the best practicable treatment effluent guideline still applies.Page 14 GAO

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### The Clean Water Act requires EPA to annually review all existing effluent guidelines and revise them if appropriate, and also to review existing effluent limitations at least every 5 years and revise them if appropriate. 20



### From the start of the effluent guidelines program in the early 1970s, EPA has faced considerable litigation, with industry challenging most of the industry

- specific effluent guidelines. As the agency implemented the program, EPA also faced challenges from environmental groups over its failure to issue guidelines and the process EPA used to screen and review industrial categories. For example, the Natural Resources Defense Council, an environmental organization, brought two suits, each seeking

to compel EPA to meet its duties to promulgate effluent limitations for listed toxic pollutants, among other actions. As a result, EPA operated under two key consent decrees establishing court

- approved schedules for it to develop and issue effluent guidelines regulations. In addition, under one of the consent decrees, EPA established a task force that operated from 1992 through 2000 and advised the agency on various aspects of the effluent guidelines program. In particular, the task force issued several reports advising EPA on changes to its screening and review process for the effluent guidelines program and recommended that EPA hold a workshop to discuss improvements to the process. The Water Quality Act of 1987 added two related requirements to EPA ’s reviews. First, EPA is to identify, every 2 years, potential candidates for new effluent guidelines, namely, industries that are discharging significant, or nontrivial, amounts of toxic or nonconventional pollutants that are not currently subject to effluent guidelines. Second, every 2 years beginning in 1988, EPA is required to publish a plan establishing a

schedule for the annual review and revision of the e ffluent guidelines it has previously promulgated. In response to these two requirements, EPA published its first effluent guidelines program plan in 1990, which contained schedules for developing new and revised effluent guidelines

for several industrial c ategories.

In 2002, after considering the recommendations made by both the task force and the workshop, EPA developed an approach to guide its post

consent decree screening and review, issued in a document called A Strategy for National Clean Water Industrial Regulations . Under this draft

20 EPA is required to issue both effluent guidelines and effluent limitations. The agency issues regulations that simultaneously address both of these and therefore it does not distinguish between the reviews required for the guidelines and for the limitations.Page 15 GAO

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- 845 EPA's Effluent Guidelines Program 

### strategy, EPA was to evaluate readily available data and stakeholder input to create an initial list of categories warranting further examination for potential effluent guidelines. The strategy identified the following four key factors for EPA to consider in deciding whether to revise existing effluent guidel ines or to develop new ones:

**•** 

### the extent to which pollutants remaining in an industrial category ’s discharge pose a substantial risk to human health or the environment;

**•** 

### the availability of a treatment technology, process change, or pollution prevention alternative that can effectively reduce the pollutants and risk;

**•** 

### the cost, performance, and affordability of the technology, process change, or pollution prevention measures relative to their benefits;

and

**•** 

### the extent to which existing effluent guidelines could be revised, for example, to eliminate inefficiencies or impediments to technological innovation or to promote innovative approaches.

The draft strategy also indicated that EPA would apply nearly identical factors to help determine whether it should is sue effluent guidelines for industrial categories for which it had not yet done so. The document noted that EPA intended to revise and issue the strategy in early 2003,
but EPA has chosen not to finalize it. 21



### Since EPA issued its draft strategy, the agency has faced litigation challenging the use of technology in its screening process. In 2004, EPA was sued by Our Children ’ s Earth, a nonprofit environmental organization, which alleged that EPA failed to consider technology

- based factors during its annual review of industrial categories. On appeal, the

Ninth Circuit Court decided in 2008 that the statute did not establish a mandatory duty for EPA to consider such factors. The court found that the EPA officials stated that the agency made this choice because its implementation of the process was likely to evolve over time.

21 See also 68 Fed. Reg. 75,515, 75,519 (Dec. 31, 2003) in which EPA stated, “EPA articulated an early form of this evolving analytical framework in th e draft Strategy for National Clean Water Industrial Regulations (‘ draft Strategy ’ ), which EPA hope [d] to finalize concurrently with the Effluent Guidelines Program Plan in 2004. ”Page 16 GAO

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- 845 EPA's Effluent Guidelines Program 

### statute ’ s use of the phrase “ if appropriate ” indicated that decisions on whether to revise guidelines are discretionary but are also constrained by

the statute ’ s mandate as to what effluent guidelines regulations are to accomplish. 22 

### Further, the court stated that the overall structure of the Clean Water Act strongly suggests that any review to determine whether revision of effluent guidelines is appropriate should contemplate technology

- based factors.

EPA uses a two

- phase process to review industrial categories potentially in need of new or revised effluent guidelines; from 2003 through 2010, the agency identified few such categories. Since 2003, EPA has annually screened all industrial categories subject to effluent guidelines, as well as other industrial categories that could be subject to new guidelines; it has

identi fied 12 categories for further review and selected 3 categories to update or to receive new effluent guidelines.

EPA ’ s screening phase starts with a review of industr ial categories already subject to effluent guidelines

— as well as industrial categories that

are not

— to identify and rank those whose pollutant discharges pose a

substantial hazard to human health and the environment. 23

22 Our Children ’ s Earth (OCE) Found. v. EPA, 527 F.3d 842, 851 (9th Cir. 2008), rehearing 506 F.3d 781 (9th Cir. 2007), on appeal from 2005 U.S. Dist. Lexis 45716 (N.D. Cal. 2005). 

### EPA analyzes and ranks industrial categories using pollutant data from facilities in similar industrial classifications. Before it ranks industrial categories in this screening phase, EPA excludes from consideration any industrial categories where guidelines are already undergoing revision or have been revised or developed in the previous 7 years. For example, EPA

23 EPA’ s draft 2002 strategy stated that it would consider the risks to human health or the environment. According to a senior effluent guidelines program official, however, the

agency ’ s screening process includes a relative hazard assessment rather than a risk assessment. According to EPA, once an industrial category has been identified as posing a significant hazard on the basis of the screening analysis —a nd before initiating an effluent guideline rule making

— the agency may then conduct a study of the industrial category to determine the risks imposed on human health and the environment. 

# EPA ’ s Two -Phase Screening and Review

Process Has

Identified Few Industrial Categories

for New or Revised

Effluent Guidelines

EPA ’ s Screening Phase
Results in a Subset of Industrial Categories for
Further ReviewPage 17 GAO

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- 845 EPA's Effluent Guidelines Program 

### announced in its 2010 final effluent guideline program plan that it excluded the steam electric power

- generating category from the screening phase because the agency had already begun revising effluent guidelines for this industry. 24



### In ranking industrial categories during the screening phase, EPA considers the extent to which discharged pollutants threaten human

health and the environment

— the first factor identified in EPA ’ s 2002 draft strategy. EPA compiles information from two EPA sources on the facilities

within these industrial categories that discharge wastewater, the pollutants they discharge, and the amount of their discharge: (1) the discharge monitoring report database and (2) the Toxics Release Inventory. Also in 2010 EPA excluded the concentrated aquatic animal production category (e.g., fish farming) from screening because the agency issued effluent guidelines in 2004.

25 

### From these two sources, EPA estimates the amount and

rel ative toxicity of pollutant discharges from screened industrial categories, converts these estimates into a single “score” of relative toxicity for each industrial category, and uses this score to rank the industrial categories according to the reported hazard they pose. To determine the relative toxicity of a given pollutant, EPA multiplies the amount (in pounds) of that pollutant by a pollutant

- specific weighting

factor to derive a “ toxic weighted pound equivalent. ” EPA ’ s ranking of one

industrial category relative to other categories can vary depending on the amount of the pollutants it discharges or the toxicity of those pollutants. For example, an industrial category, such as pesticide chemicals, may discharge fewer pounds of pollutants than anot her category, such as canned and preserved seafood processing, but have a higher hazard ranking because of the relative toxicity of the pollutant chemicals it discharges.

24 The steam electric power

- generating industry produces electric power by means of steam generated from fossil fuels, such as coal, oil, and natural gas, or nuclear fuels.

25 As explained above, an industrial direct discharger is required to have an NPDES permit regardless of whether there are effluent guidelines for the indust ry. NPDES permits require monitoring for specific pollutants to determine compliance with permit limits. Some industries may also be subject to requirements under another EPA program to report toxic releases to the Toxics Release Inventory. These requirements are independent of whether an industry is regulated by effluent guidelines.Page 18 GAO

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- 845 EPA's Effluent Guidelines Program 

### After ranking industrial categories, EPA identifies those responsible for the top 9 5 percent of the total reported hazard, which is the total of all industrial categories ’ hazard scores. EPA assigns these industrial categories a high priority for further review in the second phase of its review process. As the relative amounts of their d ischarges change, the number of industrial categories making up this 95 percent can vary each year with each screening EPA performs. From 2003 through 2009, for example, 10 to 13 industrial categories composed the top 95 percent of reported hazard, whereas in 2010, 21 categories made up the top
95 percent. 26

Figure 2: Industrial Categories Responsible for 95 Percent of the Total Reported Hazard and Considered for Possible Further Review, 2003

- 2010 

### Figure 2 shows the number of industrial categories that EPA considered for possible further review on the basis of its hazard screening.

26 According to EPA, the doubling in the number of industrial categories in 2010 resulted from the removal of the steam electric power

- generating category from the ranking

proces s after EPA decided to revise its effluent guidelines. Previously, that industrial category alone constituted up to 73 percent of the total toxic weighted pound equivalent. When EPA removed that category from its hazard ranking, many other industries with smaller hazard ranking scores moved into the top 95 percent.Page 19 GAO

- 12

- 845 EPA's Effluent Guidelines Program Note: According to EPA, the doubling in the number of industrial categories in 2010 resulted from the removal of the steam electric power

- generating category from the ranking process after EPA decided to revise its effluent guidelines. Previously, that industrial category alone constituted up to 73 percent of the total toxic weighted pound equivalent. When EPA removed that category from its hazard ranking, many other industries with smaller hazard ranking scores moved into the top 95 percent.



### After it identifies the industrial categories contributing to 95 percent of reported hazard, EPA takes additional steps to exclude industrial categories before beginning the further review phase. Specifically, the agency may exclude industrial categories on the basis of three criteria:

**•** 

### Data used in the ranking process contained errors . After completing its ranking, EPA verifies the pollutant discharge data from the discharge monitoring repo rts and Toxics Release Inventory and corrects any errors. For example, according to EPA, the agency has found that facilities have reported the wrong unit of measurement in their discharge monitoring reports, or states have transferred data into

the EPA da tabase incorrectly. In such cases, a pollutant discharge may, for example, be reported at a concentration of 10 milligrams per liter but in fact be present at a concentration of 10 micrograms per

liter

— a thousand

- fold lower discharge.

**•** 

### Very few facilities account for the relative toxicity of an industrial category . EPA typically does not consider for further review industries where only a few facilities account for the vast majority of pollutant discharges and the discharges are not representative of the ca tegory as a whole. In such cases, EPA states in its effluent guideline program plans that revising individual NPDES permits may be more effective than a nationwide regulation to address the discharge. For example, in 2004, EPA determined that one facility was responsible for the vast majority of discharges of dioxin associated with the inorganic chemicals industrial category. In its effluent guideline program plan for that year, EPA indicated that it would work through the facility ’ s NPDES permit to reduce these discharges as appropriate.Page 20 GAO

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- 845 EPA's Effluent Guidelines Program **•** 

### Other factors. EPA considers other factors in addition to those described above to determine if an industrial category warrants further review. According to EPA, one such factor is inadequate data from

which to mak e a clear determination. For example, in its 2010 screening phase, EPA excluded several industrial categories from the further review phase because it did not have conclusive data but said

that it would “ continue to review ” the categories ’ discharges to

de termine if they were properly controlled. These industries included pulp, paper, and paperboard; plastic molding and forming; and waste

combustors.

Figure 3 illustrates the exclusion process EPA applies in its initial screening phase.Page 21 GAO

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- 845 EPA's Effluent Guidelines Program Figure 3: Criteria U sed by EPA during Screening Phase to Exclude Industrial Categories from Further ReviewPage 22 GAO

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- 845 EPA's Effluent Guidelines Program 

### During the screening phase, EPA uses existing industry classifications as the basis for identifying industrial categories. EPA groups these industry classifications, w hich are identified by one of two standardized coding schemes, into industrial categories that it then considers for effluent guidelines. 27



### Through out the screening phase, EPA also obtains stakeholder and public input, which may identify industrial categories warranting new or revised effluent guidelines that were not identified by their hazard ranking. Stakeholder and public input comes from EPA ’ s s olicitation of comments on its biennial preliminary and final effluent guidelines program plans. For example, in 2004 stakeholders raised concerns about discharges from dental facilities of mercury used in dental fillings; in response, EPA later

identified the dental category for further review. On completing the screening phase, the agency lists in its preliminary or final effluent guidelines program plans the industrial categories it has identified for further review. Alternatively, EPA may decide on the basis of its screening criteria that no industrial categories warrant further review. If EPA identifies an industrial category that does not have effluent guidelines but has discharges that present a potential hazard, it decides whether the category produces a product or performs a service similar to one subject to existing effluent guidelines. If so, EPA generally considers the former category to be a subcategory of the latter. Conversely, if the product s or services differ from categories subject to existing guidelines, EPA considers the category as a potential new category. In either case, EPA may decide that the industrial category warrants further review and, possibly, new effluent guidelines.

In its further review phase, EPA conducts detailed studies of any industrial categories identified in its screening phase, using the four factors listed in its November 2002 draft strategy to determine whether the categories need new or revised effluent guidelines. Since issuing its draft strategy, EPA has selected 12 industrial categories to move beyond the screening phase to the further review phase. Seven of the categories

— for example, the pulp, paper, and paperboard category and the petroleum refining category

— were identified for further review on the

27 The industrial coding schemes that EPA uses are the Department of Labor ’ s Standard Industrial Classification codes, created in the 1930s and the North American Industry Classification System, which was created through a cooperative effort of Canadian and Mexican government agencies and the U.S. Office of Management and Budget. 

# EPA ’ s Further Review
Phase Results in Few Industrial Categories to
Consider for Potential New
or Revised Effluent
GuidelinesPage 23 GAO

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- 845 EPA's Effluent Guidelines Program 

### basis of the risk or toxicity of the pollutants they discharge, and 5 were

identified for review on the basis of stakeholder concerns. If the categories are already subject to effluent guidelines that EPA set, the agency studies the need to revise e ffluent limits in the existing guidelines; if the categories are not subject to existing guidelines, EPA studies the need to develop effluent limits and apply them for the first time. Of the 12 categories selected for further review, 8 were already subject to existing effluent guidelines, and 4 were not.

During its further review phase, according to EPA documents, EPA gathers and analyzes more information on the factors identified in its draft strategy. During this phase, EPA typically analyzes information on the hazards posed by discharged pollutants, which corresponds to the first factor in its draft strategy. The data on hazards that EPA obtains and analyzes include: (1) characteristics of wastewater and of facilities; (2) the pollutants responsible for the industrial category ’ s relative toxicity ranking; (3) geographic distribution of facilities in the industry; (4) trends in discharges within the industry, and (5) any relevant economic factors related to the industry.

During the further review phase, EP A also begins to gather and analyze information on the availability of pollution prevention and treatment technology for the industrial categories reviewed, which corresponds to the second factor identified in its draft 2002 strategy. Through this analysis , EPA identifies current technologies that industry is using to reduce pollutants, potential new technologies that could be used to reduce pollutants, or both. Table 3 summarizes EPA ’ s consideration of treatment technologies for the 12 industrial categorie s that proceeded to the further review phase. For example, EPA studied one technology used by the ore mining and dressing industrial category and several current technologies for the coalbed methane category.Page 24 GAO

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- 845 EPA's Effluent Guidelines Program Table 3: Consideration of Treatment Technology during Further Review and Resulting Key Agency Decisions

Industrial category Period for further
review Consideration of treatment technology during further review a Key agency decisions after
further review

Categories with existing effluent guidelines

Chlorine and chlorinated hydrocarbons manufacturing 2005

- present

b EPA did not prepare a written study for this industrial category. Instead it used site visits and sampled wastewater to collect data on pollutant quantities and conducted site visits
to des ign an industry

- led voluntary sampling plan. EPA officials stated that through implementation of the sampling plan, the agency discovered that most participating facilities used treatment technology that was effectively controlling their pollutant discharges. According to EPA officials, the agency does not plan to initiate rule making for this industrial category because only one facility is responsible for the majority of the pollutant discharge.

Coalbed methane
extraction 2005

- 2010

c In its 2010 study, EPA presented an
overview of seven treatment methods used by this industry, depending on the type of wastewater pollutant produced during the extraction process. On the basis of the study’s findings,
EPA in 2010 announced the start of

r ule making for effluent guidelines for this category. The agency plans to propose the rule in 2013.

Coal mining 2006

- 2008 In its 2008 study, EPA described two treatment technologies associated with the most common pollutant discharges resulting from coal mining processes. On the basis of the study’s findings,
EPA decided to take no further action on this category, stating th at the existing guidelines were appropriate to address the industry’s discharges.

Ore mining and dressing 2008

- 2011 EPA prepared a study published in 2011, which included a review of one currently used treatment technology: high density sludge recycling. The review included an overview of this treatment, where it was used in the United States, and permit requirements for facilities that used the technology. EPA in 2011 decided to take no further action on ore mining and dressing. The agency found that a

sm all number of facilities were responsible for the majority of discharges and decided to address the pollutants the NPDES permit process with permitting or through compliance and enforcement
activities.

Organic chemicals, plastics, and synthetic
fibers 2003

- 2004 EPA’s study of this category included general descriptions of treatments currently used by the industry, as well as a more detailed discussion of pollution prevention and wastewater treatment technologies used
to minimize the amount of dioxin in

wastewater streams. EPA in 2004 decided to take no further action for the category
because of the small number of facilities discharging significant amounts of toxic pollutants.Page 25 GAO

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- 845 EPA's Effluent Guidelines Program Industrial category Period for further
review Consideration of treatment technology during further review a Key agency decisions after
further review

Petroleum refining 2003

- 2004 In its study of the petroleum refining category, EPA presented general information on current treatments used by refineries to treat wastewater produced and on additional pollution control alternatives. EPA in 2004 decided to take no further action on petroleum refining
because it found that most petro leum refining facilities were not discharging toxic pollutants. For the few facilities that were, the agency said it would seek changes through the NPDES permit

process.
Pulp, paper, and paperboard 2005

- 2006 In its 2006 study, EPA identified technologies used in a laboratory setting, pilot programs, and industry to remove metals in wastewater from pulp and paper
mills. On the basis of findings from the further review phase, including that some available technologies were
site

- specific and not readily adaptable industrywide, EPA in
2006 decided to take no further action on this category,

Steam electric power generating 2005

– 2009 As part of its 2009 study, EPA focused primarily on technologies associated with two sources (coal

- ash

- handling operations and wastewater produced from specific air pollution control systems) because these sources account for a significant amount of the pollutants discharged by the industry. On the basis of findings from its study, EPA in 2009 decided to begin revising the effluent guidelines for this category. Proposed revisions to existing guidelines are expected in November 2012, with final action expected by April 2014.

New industrial categories considered

Dental facilities 2006

- 2008 EPA issued a study of dental facilities in 2008. The study discussed best management practices for dental facilities to reduce their discharge of dental amalgam containing mercury. In particular, the study reviewed facilities’ continuing use of

a malgam separators. EPA In 2008 announced that it would not pursue a rule making and
would instead work with stakeholders, including the
American Dental Association and state water agencies, on a voluntary discharge reduction program. In 2010, however, the agency reversed its decision after assessing the progress made under the voluntary reduction program. EPA expects to propose effluent guidelines in 2012.

Drinking water treatment 2004

- 2011 EPA reviewed available treatment technologies as part of a 2011 study of the industry. Because drinking water treatment operations vary

— in types of contaminants found at different plants, for example

— the study presented a range of treatment approaches. EPA took no further action on this category because the agency foun d that discharges from the category could best be addressed by adding limits to specific NPDES permits. In addition, according to agency officials, the 2011 technical report can provide information on technologies for state permit writers for drinking wate r treatment
facilities.Page 26 GAO

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- 845 EPA's Effluent Guidelines Program Industrial category Period for further
review Consideration of treatment technology during further review a Key agency decisions after
further review

Pharmaceuticals management 2006

- present

d According to EPA officials, a study of the industrial category is still under way. Officials
said that because of the nature of the industry, they are pursuing a “front

- end” strategy to prevent flushing of unused pharmaceuticals into wastewater systems. Given this approach, treatment technologies will not be a primary focus of the agency’s further review process. EPA continues to work on its study, although according to agency officials, no further action is expected toward developing new effluent guidelines for this industry. Instead, the agency plans to update draft guidance issued in August 2010 on best management practices for unused pharmaceuticals at health care
facilities.

Tobacco products processing 2004

- 2006 In 2006, EPA issued a study on this industry, which provided an overview of the treatment process typically used by tobacco products
facilities. The agency found that the category comprises primarily indirect dischargers; tha t pollutant loads are low; and, according to EPA officials, wastewater treatment plants remove 96 percent of the
loads. EPA in 2006 therefore
decided to take no further action.

Source: GAO analysis of EPA documents.

a The dates of further review (1) start with the year when EPA announced in an effluent guidelines program plan that it would conduct a study and (2) end with the year when EPA completed that work.

b Chlorine and chlorinated hydrocarbons manufacturing is a subcategory of two existing effluent guidelines categories: (1) organic chemicals, plastics, and synthetic fibers and (2) inorganic
chemicals.

c Coalbed methane extraction is not covered by an existing effluent guidelines category, although EPA considers the industry a new subcategory of the oil and gas extraction category

. d



### During its further review phase, EPA also obtains and analyzes information related to the cost, affordability, and performance of technologies, the third factor in its strategy. To do so, EPA examines the cost and performance of applicable technologies, changes in production processes, or prevention alternatives that may reduce pollutants in the industrial category ’ s discharge. As part of its cost analysis, the agency considers the affordability or economic achievability of any identified technologies , production processes, or prevention alternatives. To assess the performance of technologies, EPA considers the results of the treatment technologies used in tests or actual operations

— information the agency obtains from published research papers and internal and external Pharmaceuticals management is not to be confused with pharmaceutical manufacturi ng.Page 27 GAO

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- 845 EPA's Effluent Guidelines Program 

### sources, including site visits and surveys of industrial facilities. 28



### At the conclusion of its further review of an industrial category, EPA decides whether it is feasible and appropriate to revise or develop effluent guidelines for the category, a decision that includes gathering information on whether an effluent guideline is the most efficient and effective approach to manage the discharges, the fourth factor in EPA ’ s d raft strategy. As shown in table 3, for example, EPA decided that the drinking water treatment industrial category did not require effluent guidelines but that the agency ’ s study could act as a resource for state permit writers as they issue permits for drinking water facilities. Or, as also shown in table 3 for coalbed methane, EPA decided to develop guidelines that it plans to propose in 2013. Some of the information EPA can consider during this decision making, and some of the information related to the fourth factor in its strategy, is the extent to which existing effluent guidelines could be revised to eliminate inefficiencies or impediments to technological innovation or to promote innovative approaches. Specifically, EPA considers whether another way exists— either regulatory or voluntary

— to decrease pollutant discharges. For example, after the further review of the dental facility category in 2008, EPA decided not to develop effluent guidelines but to instead work with the American Dental Association a nd state water agencies on a voluntary reduction program to reduce pollutant discharges from dental facilities. It later changed its decision because the voluntary effort was shown to be ineffective, and the agency plans to issue effluent guidelines in 201 2. During its further review of the steam electricity power

- generating industry, for example, EPA sampled wastewater directly at power plants, surveyed plant operators about which technologies they were using to minimize pollutant discharges and at what cost, and sought information on other potential treatment technologies.

It takes EPA, on average, 3 to 4 years to complete the further review phase for an industrial category. As of July 2012, EPA had identified three industrial categories for which it had decided to revise effluent

28 Under the Paperwork Reduction Act, EPA can contact

— with a survey or questionnaire

— up to 9 entities without first obtaining approval from the Office of Management and Budget. If EPA decides to contact 10 or more entities, the agency must prepare an Information Collection Request. This request describes the information to be collected, gives the reasons the information is needed, and estimates the time and cost for respondents to answer the request. The office reviews the request and determines if the request is approved or disapproved, or it defines conditions to be met for approval.Page 28 GAO

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- 845 EPA's Effluent Guidelines Program 

### guidelines

— steam electric power generatin g— or to develop new effluent guidelines

— coalbed methane extraction and dental facilities. 29 

### According to agency documents and officials, EPA has chosen to take no action on the other 9 of the 12 categories it has further reviewed since 2002.

Limitations in the screening phase of EPA ’ s review process may have

cause d the agency to overlook some industrial categories that warrant new or revised effluent guidelines and thus hinder the effectiveness of the effluent guidelines program in advancing the goals of the Clean Water Act. First, the data EPA uses in the screening phase has limitations that may cause the agency to omit industrial categories from further review or regulation. Second, EPA has chosen to focus its screening phase on the hazards associated with industrial categories, without considering the availability of treatment technologies or production changes that could reduce those hazards. The screening phase of the process may thus exclude some industrial categories for which treatment technologies or production changes may be available to serve as the basis for new or revised effluent guidelin es.

The two sources EPA relies on during its initial screening process

— discharge monitoring reports and the Toxic Release Inventory

— have limitations that may affect the agen cy’ s ability to accurately rank industrial categories for further review on the basis of the human health and environmental hazards associated with those categories. Data from

industrial facilities ’ discharge monitoring reports have the benefit of being

na tional in scope, according to EPA documents, but according to agency officials and some experts we spoke with, these data have several limitations that could lead the agency to underestimate the hazard caused by particular industries. Specifically:

**•** 

### The reports contain data only for those pollutants that facilities’ permits require them to monitor. Under NPDES, states and EPA

29 EPA also announced in October 2011 the initiation of a new effluent guideline rulemaking process for shale gas extraction. The agency decided to undertake the rulemaking on the basis of stakeholder concerns about the industrial category without going through a further review phase. The agency plans to propose new standards in 2014. In addition, EPA conducted the further review phase of the airport deicing industrial category prior to our 2003 time frames. The agency issued effluent guidelines for the category in May 2012. 

# Focus on Limited

Hazard Data to the

Exclusion of Technology Information May Have

Led EPA to Overlook Industrial Categories

for Pollution

Reduction

Limitations in Hazard Data May Have Cause d EPA to
Overlook Industrial CategoriesPage 29 GAO

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- 845 EPA's Effluent Guidelines Program 

### offices issue permits containing limits for pollutant discharges, but those permits may not include limits for all the pollutants that may be discharged, as for example, if those pollutants are not included in the relevant effluent guidelines or need not be limited for the facility to meet state water quality standards. 30

**•** 

### The reports do not include data from all permitted facilities. Specifically, EPA does not require the s tates to report monitoring results from direct dischargers classified as minor. According to EPA, the agency in 2010 analyzed data for approximately 15,000 minor facilities, or about 37 percent of the 40,500 minor facilities covered by NPDES permits. As a result, the pollutants discharged by the remaining 25,500 minor dischargers would not be counted as part of the relative toxicity rating and could contribute to undercounting of pollutants from those industrial categories. For example, most coal mining com panies in Pennsylvania and West Virginia are considered minor dischargers whose pollutants would not count toward the ranking of that industrial category. If a pollutant is not identified in a permit, and hence not reported on discharge monitoring reports, it would not be part of EPA ’ s calculation of hazard and would not count toward the ranking of industrial categories.

**•** 

### The reports include very limited data characterizing indirect discharges from industrial facilities to wastewater treatment plants, according to EPA documents. Thus, the data do not fully document pollutants that, if not removed by a wastewater treatment plant, are discharged. These data are not incorporated into EPA ’ s calculations of hazard for each industrial category, and thus result in

underestimated hazards. 31

30 Generally, permits are to establish limitations for those pollutants reasonably expected to be present in wastewater with potential to cause or contribute to an excursion above a water quality standard. For an industry with an effluent guideline, the guideline specifies which pollutants must, at minimum, be included in the permit. For other industries, the permit writer uses information provided on the permit application, as well as other sources, to determine which pollutants may be present in wastewater and warrant a limitation. In addition, permits may include water

- quality

- based limits derived from the standards for the water body into which the effluent is discharged.

31 In addition, EPA has identified some limitations in the discharge monitoring report d ata that may cause the agency to overestimate the hazard presented by an industrial category. For example, many facilities do not report average quantities for specific pollutants, in which case, EPA has to base its estimates on the maximum or other amount discharged, which could lead to overestimating a facility ’ s actual discharges.Page 30 GAO

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- 845 EPA's Effluent Guidelines Program 

### EPA documents and some experts we contacted also stated that data collected in the Toxics Release Inventory are useful to identify toxic discharges. Nevertheless, according to the agency and experts, these inventory data have limitations that may cause EPA to either overestimate or underestimate the relative toxicity of particular industrial categories. The limitations they identified include the following:

**•** 

### The data reported are sometimes estimates and not actual monitored

data . In some cases, the use of an estimate may overreport actual pollutant discharges. For example, some industry experts said that to be conservative and avoid possible liability, some facilities engaging in processes that produce particularly toxic pollutants, such as dioxin, may report the discharge of a small amount on the basis of an EPA

prescribed method for estimating such discharges even if the pollutant had not been actually monitored.

**•** 

### Not all facilities are required to report to the inventory , which may lead to undercounting the discharges for the industrial categories of which the facilities are a part. Facilities with fewer than 10 employees are not required to report to the inventory, and neither are facilities tha t do not manufacture, import, process, or use more than a threshold amount of listed chemicals. For example, facilities that manufacture or process lead or dioxin do not need to report to the inventory unless the amount of chemical manufactured or processed reaches

10 pounds for lead or 0.1 grams for dioxin.

Despite the limitations of these data sources, EPA officials said that discharge monitoring reports and the Toxic Inventory Release are the best available data on a national level. Experts we interviewed also generally supported the continued use of these data sources despite their limitations. An EPA official responsible for the screening and review process said that EPA could not quantify the effect of the missing data on its ranking and setting of priorities for industries without time

- consuming and expensive collecting of data directly from industrial facilities. Still, agency officials agreed that the data limitations can lead to under - or overestimating the hazard of discharges from industrial categories, which could in turn affect the rankings of these categories and potentially result in different categories advancing for further review and potential regulation.Page 31 GAO

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- 845 EPA's Effluent Guidelines Program 

### EPA ’ s primary focus during its screening phase is the relative hazard posed by industrial categories, without consideration of available treatment technologies that could be used as the basis for revised effluent guideli nes to help reduce pollutant discharges. Because EPA sets the cutoff point in its screening process as industrial categories contributing to

95 percent of total reported hazard, the agency does not consider for further review the categories contributing to 5 percent of the total reported hazard. Although this percentage is low, the categories involved constitute the majority of all industrial categories with effluent guidelines.

EPA does not conduct a further review for these and other industrial categories that it has excluded for other reasons, meaning that EPA does not examine them for the availability of more

- effective treatment technologies. As previously noted, the Ninth Circuit Court held in 2008 that EPA does not have a mandatory duty to consider technology in its screening process but stated that the act strongly suggests that any review to determine whether revision of effluent guidelines is appropriate should contemplate technology

- based factors. Regardless of whether EPA is required to do so, the agency is not considering technology for these industrial categories, and hence EPA cannot ensure that the facilities in these categories are using the best available treatment technology.

According to our analysis of EPA ’ s planning documents for the efflu ent guidelines program, since the agency in 2003 began using its current screening process, more than half the industrial categories with effluent guidelines did not advance beyond the screening phase in any year from 2003 to 2010. The reason these categories did not advance was that, during a given 2

- year screening cycle, the relative toxicity of their pollutant discharges did not put them among the top 95 percent of dischargers. As a result, these industrial categories were excluded from further review before EPA would have analyzed the availability of more

advanced treatment technologies or production processes. As figure 4 shows, from 2003 through 2010, out of the 57 industrial categories with existing effluent guidelines at the time of review, EPA excluded 35 in each of the four biennial screening cycles, thus omitting them from further review of the availability of treatment technologies or production 

# EPA ’ s Screening Phase
Does Not Consider Treatment Technologies, Omitting Some Indust rial Categories from Further
ReviewPage 32 GAO

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### processes that could reduce hazards from discharges. 32

Figure 4: Number of Times Existing Industrial Categories Were in the Top
95 Percent of Total Reported Hazards in the Four Biennial Screening Phases from 2003 through 2010 

### (See app. III for further information on the industrial categories that have and have not come within the top 95 percent since 2003.)

Note: The total number of industrial categories with effluent guidelines during this period was 57.



### As noted in 4 of the 17 interviews with experts we interviewed from academia, industry, nonprofit organizations, and state and local water quality agencies, consideration of treatment technologies is especially important for older effluent guidelines because either the industrial categories or the treatment technologies would have been more likely to change, making it possible that new, more advanced treat ment technologies are available. As table 4 shows, however, effluent guidelines

32 And, as we described above, after identifying the industrial categories contributing to the top 95 percent of hazard, EPA may use other factors to exclude additional industria l categories before beginning the further review phase. Therefore, even those categories within the top 95 percent do not necessarily receive the further review examining the availability of treatment technology.Page 33 GAO

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### have not been revised since the 1980s for 8 of the 35 industrial categories that have been excluded from further review. Further, 25 of the 35 effluent guidelines for categories that were excluded from further review have not been revised since 1995 or earlier. Battery manufacturing, for example, has not been through the further review phase since EPA began using its current screening and review process. Yet according to state officials we interviewed, the effluent guidelines for this category apply to older battery types and do not address wastewater from the manufacture of newer battery types, such as those made with lithium. In addition, even in cases where EPA has revised the effluent guideline for an industrial category, the revision may have addressed just a portion of the guideline. For example, EPA may add pollutants or change the limits for a particular industrial category or add a new subcategory. Thus, the guidelines fo r the category as a whole may not have been revised since the guidelines were originally promulgated. Table 4 shows the 35 industrial categories that were excluded from further review over the last 8 years, the year effluent guidelines were promulgated, an d the year the categories ’ guidelines were most recently

revised.

Table 4: Regulated Industrial Categories Excluded in the Screening Phase from Further Review, 2003

- 2010

Industrial category Year promulgated Year most recently
revised Number of years elapsed
since most
recent revision

Porcelain enameling 1982 1985 27

Electrical and electronic components 1983 1985 27

Electroplating 1981 1986 26

Copper forming 1983 1986 26

Metal finishing 1983 1986 26

Battery manufacturing 1984 1986 26

Aluminum forming 1983 1988 24

Nonferrous metals forming and metal powders 1985 1989 23

Asbestos manufacturing 1974 1995 17

Canned and preserved fruits and vegetables processing 1974 1995 17

Canned and preserved seafood processing 1974 1995 17

Dairy products processing 1974 1995 17Page 34 GAO

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- 845 EPA's Effluent Guidelines Program Industrial category Year promulgated Year most recently
revised Number of years elapsed
since most
recent revision

Ferroalloy manufacturing 1974 1995 17

Glass manufacturing 1974 1995 17

Grain mills 1974 1995 17

Soap and detergent manufacturing 1974 1995 17

Sugar processing 1974 1995 17

Ink formulating 1975 1995 17

Paint formulating 1975 1995 17

Paving and roofing materials (tars and asphalt) 1975 1995 17

Explosives manufacturing 1976 1995 17

Gum and wood chemicals 1976 1995 17

Hospital 1976 1995 17

Carbon black manufacturing 1978 1995 17

Leather tanning and finishing 1982 1996 16

Pharmaceutical manufacturing 1983 2003 9

Iron and steel manufacturing 1982 2005 7

Transportation equipment cleaning 2000 2005 7

Coil coating 1982 2007 5

Concentrated animal feeding operations 2003 2008 4

Photographic 1976 No revisions No revisions

Metal products and machinery 2003 No revisions No revisions

Concentrated aquatic animal production 2004 No revisions No revisions

Meat and poultry products 2004 No revisions No revisions

Construction and development 2009 No revisions No revisions

Source: GAO analysis of EPA documentation.

Note: In a given year, EPA may have revised just a portion of the effluent guideline for an industrial category. For example, EPA may have added pollutants or changed the pollutant limits for a particular
industr ial category or added a new subcategory.



### Our survey of state water quality directors, who are responsible for NPDES permits, also identified industrial categories that have been

omitted from EPA ’ s further review phase even when treatment technologies may be available. Specifically, state officials identified nine industrial categories that they think pose significant risk and have treatment technologies or pollution prevention practices available to mitigate that risk, categories for which the effluent gui delines should bePage 35 GAO

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### revised. Further, state officials generally thought that industries could implement the technologies without financial hardship. Nevertheless, EPA has excluded these industrial categories from further review because they

did not contribut e to the top 95 percent of total reported hazard. At least one state director identified one or more of the following nine industrial categories as needing revised effluent guidelines, noting that their pollutants were hazardous to human health or the environment and technologies were available to further reduce these hazards: canned and preserved seafood processing; dairy products processing; electrical and electronic components; electroplating; grain mills; meat and poultry products; metal finishing; pharmaceutical manufacturing; and sugar processing. With regard to metal finishing, for example, state officials said that existing guidelines reflect processes no longer in use and do not address newer and more common production techniques and associated poll utants. In contrast, state officials agreed with EPA ’ s efforts to revise or develop new effluent guidelines for certain other industrial categories, including steam electric power generation and airport deicing. (For more information on our survey and its results, see appendix II.)

In its 2002 draft strategy, EPA recognized the importance of including treatment technology in its screening phase but later stated that it was unable to develop an approach it deemed feasible for gathering such

information. The draft strategy included treatment technology as one of the factors that EPA would use to screen industrial categories to determine if they needed new or revised effluent guidelines. According to the draft strategy, EPA was to obtain information on available treatment technologies and pollution prevention practices by regularly reviewing trade publications; participating in professional conferences; and consulting with permit writers, industry representatives, and the public. EPA initially pursued this approach, but in 2003 concluded that gathering the data needed to perform a meaningful screening

- level analysis for technology was much more resource intensive than anticipated 33 

### and restricted the screening phase to comparing the degree of hazard posed by vario us industrial categories. 34

33 68 Fed. Reg. 75515, 75521 (Dec. 31, 2003) (“ EPA found that it was much more difficult than anticipated to gather the data needed to perform a meaningful screening

- level analysis of the availability of treatment or process technologies that might reduce hazard or risk beyond the performance of technologies in place. ”). 

### Yet without treatment technology data,

34 Environmental Protection Agency, Factor 2 Analysis: Technology Advances and Process Changes (Washington, D. C.: December 2003).Page 36 GAO

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### the agency cannot be confident that the effluent guidelines program is meeting the Clean Water Act ’ s goal of applying the best available technologies economically achievable or that the prog ram reflects advances in the technologies used to reduce pollutants in wastewater.

EPA has begun to take actions to improve the hazard data it uses in its screening of industrial categories, but it is not fully using potential sources of information on treatment technologies for consideration in this screening. According to program officials, EPA has recognized that its screening phase has resulted in the same industries rising repeatedly to the top of its hazard rankings. Program officials said that they are considering changes to their screening approach to identify additional industrial categories for further review. The primary change, the officials told us, would be to rank categories according to toxicity every 2 years, rather than annually, and to supplement that ranking with a targeted analysis of additional sources of data. To develop such revisions, officials

from EPA ’ s effluent g uidelines program engaged in an informal

“ brainstorming ” exercise within the agency and identified several sources of data on new and emerging pollutants, sources that officials think could help target industrial categories for further review. EPA official s said they will propose revisions to the review process in the 2012 preliminary effluent guidelines program plan they expect to issue late in 2012.

To mitigate the limitations with hazard data that EPA currently experiences, the agency has taken several steps to obtain new sources of information and to improve existing sources. Using additional sources of data is consistent with suggestions made to us by several academic and governmental experts we interviewed that other sources of hazard data may be useful to the agency, including additional monitoring data and data on the quality of water bodies receiving wastewater discharges. 35

**•** 

### a 2009 EPA survey of sludge produced by wastewater treatment plants to identify pollutants entering these plants, indicating that they The new data sources would broaden the hazard data considered in the screening phase. Among the sources EPA intends to pursue fo r future use are the following:

35 Notably, of the six experts we interviewed from industry, only one suggested additional

sources. 

# EPA Is Adding Hazard

Data Sources but Is Not Fully Using

Potential Sources of

Information on

Treatment TechnologiesPage 37 GAO

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### are not being treated by an industrial facility and might need regulation;

**•** 

### a review of action plans prepared under EPA ’ s Office of Pollution Prevention and Toxic Substances for specific chemicals of emerging concern to identify pollutants that are likely to be discharged to waters by industrial point sources;

**•** 

### a review of all EPA air pollution regulations issued within the last 10 to15 years to identify new treatment processes that could add to or change the pollutants in wastewater streams; 36

**•** 

### a review of data and information available concerning industries that EPA is considering for a proposed expansion of required reporting for the Toxics Release Inventory. and

EPA is also drafting a rule that would increase the information EPA receives electronically from discharge monitoring reports from NPDES permittees and permitting authorities. According to officials with the effluent guidelines program, increased electronic reporting would result in a more complete and accurate database and improve their access to the

hazard data from facilities ’ discharge monitoring reports, thereby improving the sc reening of industrial categories. For example, according to EPA officials, data on minor facilities that are not currently reported into the discharge monitoring database used in the screening process would be reported under the electronic reporting rule, as sent to the Office of Management and Budget for review. 37



### EPA recognizes the need to use information on treatment technologies in the screening phase to improve its process and has taken some initial steps to develop a database of such information, but it has not made full use of potential data sources. EPA started to gather information on treatment technology in 2011, contracting with consultants to obtain

36 Air po llution regulations can be relevant in that they may cause a shift in pollutants from air emissions to wastewater or sludge. For example, EPA ’ s ongoing effort to revise the effluent guidelines for the steam electric power

- generating industry is in part a r esponse to changes in the industry ’ s wastewater as the plants installed scrubber equipment that uses water to remove pollutants to comply with air pollution regulations to control sulfur dioxide.

37 As of August 2012, the Office of Management and Budget is reviewing EPA ’ s draft electronic reporting rule. Accordingly, EPA has not yet proposed the rule.Page 38 GAO

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### relevant literature for the database. In its comments on a draft of this report, the agency said that it will expand on this work in 2013 and 2014 once new fiscal year operating plans are in place. According to agency officials, a thorough analysis of the literature would give the program an updated technology database, which would help in identifying a dvances in technologies in use or with potential use in industrial categories, which, on the basis of these advances, may in turn warrant further review. They noted that in the 1980s and 1990s, the program used such information from an agency database but that the database had become outdated.

In more than half of our interviews (10 of 17), experts told us that EPA should consider technology in its screening phase, 38

**•** 

### Stak eholder outreach. Experts suggested that key stakeholders could provide information on technology earlier in the screening process. Currently, EPA solicits views and information from stakeholders during public comment periods following issuance of preliminary and final effluent guidelines plans. According to experts, EPA could obtain

up

- to

- date information and data from stakeholders beyond these formal comment periods. For example, EPA officials could (1) attend annual workshops and conferences hosted by industries and associations, such as engineering associations, or host their own expert panels to learn about new treatment technologies and (2) work with industrial research and development institutes to learn about efforts to reduce wastewater pollution through production changes or treatment technologies. and some of them suggested the following two approaches for obtaining this information:

**•** 

### NPDES permits and related documentation. Experts suggested that to find more information on treatment technologies available for specific pollutants, EPA could make better use of information in NPDES

per mit documentation. For example, when applying for NPDES permits, facilities must describe which pollutants they will be discharging and what treatment processes they will use to mitigate these discharges. Such information could help EPA officials

administe ring the effluent guidelines program as they seek technologies to reduce pollutants in similar wastewater streams from similar industrial processes. Similarly, information from issued NPDES

38 Five experts said that EPA should not consider technology earlier in its screening phase, and two did not provide their opinions.Page 39 GAO

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### permits containing the more stringent water quality

- based limits

—

w hich may lead a facility to apply more advanced treatment technologies

— could suggest the potential for improved reductions. Further, information in fact sheets prepared by the permitting authority could also furnish information on pollutants or technologie s that could help EPA identify new technologies for use in effluent guidelines.

According to EPA officials, these two sources of information have not been extensively used. They said that they would like to obtain more stakeholder input during screening and review, but they have limited time, resources, and ability to work with stakeholders. They noted that the effluent guidelines program does assign staff members responsibility for keeping up with technologies and developments in specific industrial categ ories. They also said that the NPDES information suggested by experts is not current or readily available for use by the program.

Our analysis of NPDES information, however, showed that EPA has not taken steps to make the information available for use by t he effluent guidelines program. For example, the standard list of treatment processes on the NPDES application form has not been updated since 1980, and EPA officials said it was out of date. Yet EPA has not updated this information or provided it to the effluent guidelines program for use in screening available technologies. EPA could have done so through a second rulemaking effort under way to improve NPDES data

— in which EPA is updating NPDES application forms to make them more consistent with NPDES regul ations and current program practices

— but chose not to. Agency documents about this rulemaking described it as modifying or repealing reporting requirements that have become obsolete or outdated over the past 20 years and modifying permit documentation procedures to improve the quality and transparency of permit development. Nonetheless, effluent guidelines program officials said that they did not request potential NPDES permit updates relevant to their program because the scope of this rulemaking was too na rrow. EPA ’ s Office of Wastewater Management, which is responsible for the rulemaking, confirmed that the scope of the proposed rule is to be narrow and not call for states or permittees to provide new information.

Further, fact sheets or similar documentation that NPDES permit writers develop describing the basis for permit conditions are not stored in EPA ’s

electronic NPDES database and are therefore difficult to obtain and analyze, according to program officials. Instead, these NPDES documents are now maintained by the authorized states or EPA regions and are not readily accessible to the effluent guidelines program.Page 40 GAO

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- 845 EPA's Effluent Guidelines Program 

### Program officials said that electronic transmission of fact sheets or information about the basis for permit limits could be useful in identi fying treatment technologies, although the scope of the electronic reporting rulemaking did not include such documents or information. Officials from the Office of Enforcement and Compliance Assurance, the office responsible for this rulemaking, told us th at they discovered such wide variability among the states ’ practices for gathering and managing NPDES information like fact sheets or the basis for permit limits that it would be difficult to call for electronic reporting of such information.

EPA and the nation have made great strides in reducing the pollutants in wastewater discharged from point sources, such as industrial facilities, since the Clean Water Act was passed. EPA ’ s effluent guidelines program has been key in contributing to these results by establishing national uniform limits on pollutant discharges for various industrial categories. Progress within the program has slowed, however, and numerous effluent guidelines for particular industrial categories have not been revised for 2 or 3 decades, although the act calls for EPA to routinely review its effluent guidelines and update or add to them as appropriate. EPA ’ s approach for screening and further reviewing industrial categories, as currently implemented, has not identified many

ca tegories for the agency to consider for new or revised guidelines, and the screening process has identified many of the same industrial categories year after year. EPA ’ s approach focuses its resources on the most hazardous sources of pollution, but its reliance on incomplete hazard data during the screening phase has limited the results of the approach, as has EPA ’ s inability to thoroughly collect treatment technology data within its resource constraints. Under EPA ’ s current approach, most industrial categories have not received a detailed further review examining the availability of more

- effective treatment technologies. According to some experts, consideration of treatment technologies is especially important for older effluent guidelines because changes i n either the industrial categories or the treatment technologies are more likely to have occurred, making it possible that new, more advanced and

cost- effective treatment technologies have become available. EPA has recently taken steps to obtain more information on treatment technologies for use in its screening phase

— which could help make up for limitations in the hazard data it currently uses

— but it has not taken steps to improve and gain access to technology information from the NPDES program. Further, EPA is reconsidering its approach to its screening and review

process

— initially documented in its draft strategy that was never

finalized

— but has not analyzed a range of possible sources of data to 

# ConclusionsPage 41 GAO

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### improve the program, including taking full advantage of the NPDES database, obtaining relevant stakeholder input, and reviewing older effluent guidelines for changes in either the industry or available treatment technologies. Without evaluating a range of new sources of relevant information, officials with the effluent guidelines program cannot ensure that the reconsidered approach can be implemented or that it optimizes the agency ’ s ability to consider technology in the screening process. Most important, without a more thorough and integrated screening approach th at both improves hazard information and considers treatment technology data, EPA cannot be certain that the effluent guidelines program is reflecting advances in the treatment technologies used to reduce pollutants in wastewater.

To improve the effectiveness of EPA ’ s efforts to update or develop new effluent guidelines, we recommend that the Administrator of EPA direct the effluent guidelines program to take the following three actions, as it

considers revisions to its screening and review process:

**•** 

### Identify and evaluate additional sources of data on the hazards posed by the discharges from industrial categories.

**•** 

### Identify and evaluate sources of information to improve the agency ’s assessment in the screening phase of tr eatment technologies that are in use or available for use by industrial categories, including better
use of NPDES data.

**•** 

### Modify the screening phase of its review process to include thorough consideration of information on the treatment technologies available to industrial categories.

We provided a draft of this report to EPA for review and comment. In its written comments, which are reproduced in appendix IV, EPA said that our report adequately describes the agency ’s effluent guidelines program and agreed in principle with two of the report ’ s recommendations but disagreed with the third recommendation. EPA also provided several technical comments, which we have incorporated as appropriate.

Regarding our first recommendation, that EPA identify and evaluate additional sources of data on the hazards posed by industrial discharges and factor these into its annual reviews, EPA agreed that additional sources of such data are valuable. For this reason, EPA said, it be gan 

# Recommendations for

Exec utive Action

Agency Comments

and Our EvaluationPage 42 GAO

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### collecting new sources of hazard information in 2011, which the agency is using in its 2012 annual review. EPA also said that its preliminary 2012 effluent guideline program plan will solicit additional ideas for new hazard data sources from the public and industry stakeholders. We described EPA’s ongoing and planned efforts in our report , but because the agency has not yet published its preliminary 2012 effluent guideline program plan,

we cannot determine the extent to which these efforts address the

l imitations we identified in its hazard data. Likewise, we are not able at

this time to confirm that EPA will solicit additional sources of such data from stakeholders. We support EPA ’ s stated intent to identify and

evaluate additional sources of hazard data and retain our recommendation, reinforcing the need for the agency to continue the efforts it has begun.

Regarding our second recommendation, that EPA should identify and evaluate additional sources of information to improve its assessment of

treatment t echnologies for industrial dischargers, EPA agreed that treatment technology information is useful to its program. The agency added that, given the importance of new treatment technology information, in 2011 it initiated efforts to gather more treatment

in formation across all industry categories and will be expanding on this work in 2013 and 2014, once new fiscal year operating plans are in place.

We described EPA ’ s initiative to obtain and review technical literature on treatment technology in our report. We nevertheless believe that EPA could use other sources of information on treatment technology, including information associated with NPDES permits, as described in the report. We continue to believe that EPA should identify and evaluate these and other sources of information on treatment technologies, with the goal of ensuring that the agency ’ s effluent guidelines reflect the best available treatment technologies that are economically achievable.

Regarding our third recommendation, that EPA modify the scr eening phase of its review process to include a thorough consideration of information on the treatment technologies available to industrial categories, EPA agreed that factoring treatment technology information into its reviews is valuable. The agency said, however, that the recommendation was not workable in the context of the agency ’ s current screening phase, noting that such an effort would be very resource

intensive. Our concern is that EPA’s current screening phase , while targeted toward high

- risk indu stries, does not ensure that effluent guidelines incorporate the best available treatment technologies that are economically achievable. We acknowledge that evaluating technologies for all existing industrial categories could be difficult for EPA toPage 43 GAO

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### accomp lish on an annual basis under its current approach . Our recommendation, however, did not specify that such a n evaluation be done every year. For example, EPA could commit to a detailed study of the technologies in use and available to an industrial category on a periodic basis (i.e., every 5

- 10 years). As noted in our report, EPA’s 2002 draft strategy recognized the importance of evaluating treatment technolog ies in its screening phase

, and the Court of Appeals for the

Ninth Circuit held that, while not man datory

, the Clean Water Act strongly suggests that in determining whether the revision of effluent guidelines is appropriate

— which begins with the screening phase

— the agency should contemplate technology

- based factors . However, we are not aware of any

deta iled EPA evaluation of options for considering technology during the screening phase since the agency announced in 2003 that performing a meaningful screening

- level analysis of the availability of treatment technolog ies as planned in the draft strategy was “ much more difficult than anticipated. ” We believe that, nearly a decade later, EPA should, within the constraints of available resources, evaluate current options to

consider such technolog ies in its screening phase. Furthermore, given its

efforts to dev elop and update its technology information, we believe that EPA should clarify how it plans to incorporate this information in its screening phase.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the Administrator of EPA, the appropriate congressional committees, and other interested parties. In addition, the report will be available at no charge on the GAO website at http://www.gao.gov

.Page 44 GAO

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### If you or your staff members have any questions about this report, please contact me at (202) 512

- 3841 or trimbled@gao.gov . Contact points for our Office of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix V.

Sincerely yours,

David C. Trimble Director, Natural Resources and EnvironmentAppendix I: Scope and Methodology

Page 45 GAO

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### To examine the process the Environmental Protection Agency (EPA) follows to screen and review industrial categories and the results of that process, we reviewed the Clean Water Act and relevant court decisions and agency documents, interviewed agency officials and experts, and

d ocumented the steps EPA has taken to screen particular industrial categories for possible new or revised effluent guidelines. Specifically, we reviewed relevant portions of the Clean Water Act to determine EPA ’s responsibilities regarding the effluent guidelines and pretreatment programs. We analyzed several court decisions that ruled on challenges

to EPA ’ s effluent guidelines program to determine what, if any, impact they had on the agency ’ s screening and review process. Further, we

interviewed officials i n EPA ’ s Engineering and Analysis Division to learn how the agency has used the process to screen and review industries. We focused our review on the results of the process EPA used from 2003 through 2010 in order to examine the approach it developed after the publication in November 2002 of its draft Strategy for National Clean Water Industrial Regulations: Effluent Limitation Guidelines, Pretreatment Standards, and New Source Performance Standards . By the end of our review, EPA had not yet published a prel iminary or final effluent guideline program plan for the 2011

- 2012 planning cycle.

To document the results of EPA ’ s process, we examined the agency ’s screening decisions for all industrial categories from 2003 through 2010. Specifically, we examined EPA ’s final effluent guideline plans and technical support documents for 2004, 2006, 2008, and 2010 and the

agency ’ s website to identify screening decisions and subsequent studies associated with particular industries. We examined these studies to identify those industries that EPA subjected to further review, which included an examination of available treatment technologies. Specifically, we examined preliminary and detailed studies for the 12 industries that EPA advanced beyond the screening phase into further review and selected 7 of them for more robust analysis to document how EPA had applied the process to those industries. The 7 industries were ore mining and dressing, coalbed methane extraction, steam electric power generation, chlorine and chlorinated hydrocarbon, drinking water treatment, pharmaceuticals management, and dental facilities. That analysis included in

- depth interviews with EPA staff assigned to those industrial categories. These 7 industrial categories met our selection criteria that they be active or recently active, that is, that EPA was reviewing them or had made a decision to proceed or not to proceed with a rulemaking as recently as 2011 or 2012. We also documented the current status of any regulatory actions or other steps that EPA had t aken

with the other 5 industries that received a further review. We also 

# Appendix I: Scope and MethodologyAppendix I: Scope and Methodology

Page 46 GAO

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### examined the planning documents for 2 industrial categories

— airport deicing and construction and development

— that did not go through

EPA ’ s 2003

- 2010 screening and review process but were the subject of regulatory activity during our study period.

To examine limitations to EPA ’ s screening and review process, if any, that could hinder the effectiveness of the effluent guidelines program in advancing the goals of the Clean Water Act, we p ursued three separate methodologies: we (1) interviewed a cross section of experts on EPA ’s effluent guidelines program, (2) surveyed the water quality permit

directors of the 46 states that are authorized to issue permits for the National Pollutant Discharge Elimination System (NPDES), and (3) analyzed information about the hazard data sources EPA uses in its screening process.

We identified individuals for possible “ expert ” interviews by compiling a list of approximately 50 people from a variety of sources relevant to the effluent guideline program, including referrals from EPA, the Association of Clean Water Agencies, and the National Association of Clean Water Agencies and by consulting other knowledgeable individuals, relevant academic literature, and litigation documents. We classified the individuals by their affiliation with a particular stakeholder category (academia, industry, nongovernmental organization, or state and local water quality agencies). We then excluded from consideration 13

individuals for whom we could not obtain contact information. We called or sent an electronic message to those individuals for whom we had contact information to ask if they were familiar with EPA ’ s current effluent guidelines screening and review process. We exclude d from consideration those individuals who told us that they were not familiar with these processes, those who could not speak with us during the time frame of our review, and those who said they were not interested in contributing to our review. From our larger list of approximately 50 experts, we selected 22 individuals to interview whom we determined to be experts on the basis of their familiarity with the program and their affiliation with a particular stakeholder category. We conducted

17 interviews in cluding these 22 individuals from February 2012 to April 2012. Six of these interviews were with officials from industry, 4 from academia, 4 from state and local government, and 3 from nongovernmental organizations. In 4 cases, more than one expert partici pated in an interview. We prepared and asked a standard set of questions about the overall effectiveness of the effluent guidelines program and EPA ’ s use of hazard data, stakeholder input, and information on treatment technology in the screening process. W e thenAppendix I: Scope and Methodology

Page 47 GAO

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### reviewed their responses to identify common themes. The sample of experts is a nonprobability sample, and we therefore cannot generalize their opinions across all experts on the effluent guideline program.

To assess the extent to which effluent guidelines might need to be revised, we conducted a web

- based survey of state water quality directors, and we statistically analyzed the data. Appendix II presents a complete description of our survey and our data analysis.

To obtain information about an industry that EPA had not analyzed in a further review phase, we selected one of the nine industries that states in our survey said presented a risk to human health or the environment, had treatment technology available to reduce that risk, and warranted

revisi on. We asked officials from the five states whose responses for the metal finishing industry met all three of the above criteria a standard set of questions about the risk the metal finishing industrial category posed, the technology available to mitigate this risk, and the likely effect of a revised effluent guideline.

We further interviewed experts about their views on the adequacy of the hazard data that EPA uses in its screening process

— discharge monitoring reports and the Toxics Release Inventory

— and whether the experts had suggestions for alternative data sources. We also reviewed

EPA ’ s own examinations of the benefits and limitations associated with the two data sources. EPA reports on these examinations of data quality in the technical support documents that accompany its effluent guideline program plans. In addition, we interviewed officials from EPA ’ s Office of Enforcement and Compliance Assurance to learn about the management of the databases that store discharge monitoring data. We also

interviewe d officials from the Engineering and Analysis Division in EPA ’s Office of Water about possible effects that incomplete or inaccurate data could have on the screening process. We did not perform an independent assessment of data quality, although we concluded from the information we gathered that the data do have limitations that could affect EPA ’s screening process.

To examine the actions EPA has taken to address any limitations in its screening and review process, we interviewed effluent guideline p rogram officials from the Engineering and Analysis Division about their plans to modify the biennial screening and review process. We also reviewed papers prepared for the division by a contractor, which describe new

sources of data that the division could use to identify industrial categories potentially posing environmental hazards and warranting further reviewAppendix I: Scope and Methodology

Page 48 GAO

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### for possible new or revised effluent guidelines. In addition, we interviewed officials from the Engineering and Analysis Division, the Office of

W astewater Management, and the Office of Enforcement and Compliance Assurance about agency efforts to revise the NPDES permitting process and the database that contains NPDES permit information. We conducted these interviews to determine what steps EPA

has taken or could take to use these activities to improve the hazard and treatment technology data available for the screening process.

We conducted this performance audit from September 2011 to September 2012, in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.Appendix II: Survey of State Water Quality
Permit Writers and A nalysis of Views about
Whether EPA Should Revise Effluent
Guidelines

Page 49 GAO

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### To assess the extent to which effluent guidelines might need to be revised, and to better understand the reasons for any such revisions, we

conducted a web

- based survey of state water quality officials, and we statistically analyzed patterns in the survey data. Our analy sis identified

numerous industries in numerous states for which state officials think that EPA should revise its guidelines. Furthermore, our analysis suggests that a few key factors

— particularly, the significance of risk posed by effluent and the availability of pollution control technology

— largely influence these

officials ’ views about whether guidelines should be revised. Details about our survey and our data analysis follow.

We designed our survey to ask respondents both (1) wheth er they thought EPA should revise effluent guidelines for certain industrial categories and (2) whether they thought the major factors that EPA considers when revising effluent guidelines were present for these industrial categories in their state. We reviewed EPA ’ s 2002 draft Strategy for National Clean Water Industrial Regulations and identified the four key factors that the agency uses to determine whether effluent guidelines should be revised. These factors include (1) whether the effluent from a particular industrial category poses a significant risk to human health or the environment; (2) whether technology is available to substantially reduce the risk; (3) whether industry could adopt the technology without experiencing financial difficulty; and (4) w hether other factors are present, such as whether current effluent guidelines for that industrial category are difficult to administer and whether revised guidelines could promote innovative regulatory approaches. We summarized these factors, using the exa ct language from EPA ’s guidance wherever possible, and wrote survey questions that were simple enough to yield valid responses. We determined that the fourth factor was too complicated to be expressed as a single survey question, and we

divided it into two simpler questions. By designing the questionnaire in this way, we sought to increase the reliability of our survey data in two ways: First, asking respondents to assess each of the factors that EPA considers for revision before providing their views about whether EPA should revise effluent guidelines focused their attention on providing an informed opinion. Second, by obtaining data on both the decision

- making factors and the need for effluent guideline revisions, we were able to conduct a statistical analysis to identify how these factors appear to

influence states ’ views about the need for guideline revisions.

Our survey was divided into three sections. In the first section, we asked states to respond to a series of questions about each of the five indust rial 

# Appendix II: Survey of State Water Quality Permit Writers and Analysis of Views about Whether EPA Should Revise Effluent Guidelines

Questionnaire DesignAppendix II: Survey of State Wate r Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

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### categories that release the greatest amount of toxic effluent in their state. We originally considered surveying states about each of the 58 industrial categories regulated by effluent limitation guidelines. During initial

interviews with state offici als, however, we determined that this approach would be burdensome and impractical. Therefore, we used data on pollutant discharges from EPA ’ s Toxics Release Inventory and discharge monitoring reports to select the five industries that discharged the great est amount of toxic effluent in each state in 2010. 1 

### For each of these five industrial categories, we asked states six questions, the first five of which pertain to EPA ’ s decision

- making factors and the last of which pertains to the need for revised efflue nt guidelines. The six questions we asked about each industry are as follows: 2



### 1. Are the existing effluent guidelines for this industry 3 

### sufficient on their

own

— that is, without additional water quality

- based effluent limits

— to protect your state from signif icant risks 4



### 2. Is there a technology, process change, or pollution prevention action that is available to this industry that would substantially reduce any risks that remain after the state applies existing effluent limit s? to human health or the

environment?

1 Although these data have certain limitations, which we describe elsewhere in this report, we determined they were sufficiently reliable for the purpose of selecting industries on which to focus our survey questions.

2 Because state officials might not have complete information about all the key factors for each of the five industries, we allowed them to report their level of certainty in their response by answering each of the questions with either definitely yes, probably yes, probably no, definitely no, or don ’ t know or no response. We collapsed these five categories into three categories

— yes, no, and don ’ t know or no response

— for subsequent analysis.

3 In the online version of the questionnaire, we customized the survey questions by inserting the name of each of the specific industries for each state.

4 We based our survey questions on EPA ’ s draft 2002 strategy, which uses the term risk
rather than the term hazard . To be consistent with the precise wording of the survey questions, we use the term risk when describing the survey results. Elsewhere in this report, we use the term hazard in accordance with our discussions with EPA officials about the agency ’ s screening process, in which contaminants are first assessed for
hazard and then assessed for risk

.App endix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

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- 845 EPA's Effluent Guidelines Program 

### 3. Do you think this industry can afford to implement this risk

- reducing technology, process change, or pollution prevention action without experiencing financial difficulty?

4. Are the current effluent guidelines for this industry difficult to understand, implement, monitor, or enforce?

5. Do you think the current effluent guidelines for this industry could be revised to promote innovative approaches, such as water quality trading or multimedia benefits?

6. Given your responses to the previous questions, do yo u think EPA should revise the current effluent guidelines for this industry?

In addition to asking about the top five industrial categories in each state, we asked states about two other sets of industrial categories. First, we

asked state officials to li st up to three other categories that were not among the top five in their state but for which they thought the effluent guidelines should be revised. Second, we asked these officials to list up to three categories that are not regulated by effluent guideli nes but for which they think EPA should consider developing guidelines. To be confident that our questions would yield reliable data, we conducted four pretests with state officials. During these pretests, we sought to determine whether the questions were clear, could be reliably answered, and imposed a reasonable burden on respondents.

We administered our survey to the directors of the water quality programs in the 46 states that are authorized to implement NPDES. These state

officials are largely responsible for issuing permits to industrial facilities and for incorporating effluent guidelines into those permits. They have regular, firsthand experience with the guidelines, and their experience may supplement EPA ’ s information on efflue nt. We determined that these officials were therefore sufficiently knowledgeable to answer our survey questions. We obtained a list of these officials and their contact information from EPA and verified this list through Internet searches and phone calls with state officials. We identified the primary contact for each

state but asked these individuals to consult with others in their office to determine the most accurate answer for each survey question. 

# Survey RespondentsAppendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

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### We implemented our survey as a web

- based questionnaire. We notified the state water quality permit directors in February 2012 of our intent to conduct the survey and requested their participation. We instructed the

states on how to access the web

- based survey on March 2, 2012. We

sent three e

- mail reminders and telephoned states that had not responded before we closed the survey in April. We received responses from 31 of the 46 states, for an overall response rate of 67 percent of states. The survey data are based on responses from 42 i ndividuals in

these 31 states. Because we surveyed state officials only about the industrial categories that discharge the greatest amount of toxic effluent in their state, and because several states did not respond to our survey, the results of our analysis are not generalizable to all industrial categories in

all states.

To determine the extent to which state officials think that effluent guidelines should be revised, we analyzed the univariate frequencies of responses to our six primary survey questions. We aggregated the survey responses to create industry

- by

- state cases, such that each case represented the views of a particular state about the guidelines for a particular industrial category in that state. The completed surv ey questionnaires from 31 states led to 155 possible state

- by

- industry cases. Because not all states responded to all of the survey questions, however, we had at most 123 valid cases for analysis, depending upon the survey question. A summary of the respon ses to these questions appears in

table 5.

Table 5: State Officials ’ Responses to the Key Questions in Our Survey for the Industries Discharging the Greatest Amount of
Toxic Effluent in Their State

Probably yes or definitely yes (percentage) Probably no o r definitely no (percentage) Don’t know or no

response (percentage) Total number of

cases a

Are the existing effluent guidelines for this industry sufficient on their own

— that is, without additional water quality

- based
effluent limits

— to protect your state from significant risks to human health or the
environment? (percentage)

51 (42) 69 (57) 2 (2) 122 (100%)

Is there a technology, process change, or pollution prevention action available to this industry that would substantially reduce any
risks that remain after the state applies existing effluent limits? 38 (31) 51 (41) 34 (28) 123 (100) 

# Survey Administration

Summary of Survey ResponsesAppendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

Page 53 GAO

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- 845 EPA's Effluent Guidelines Program Probably yes or definitely yes (percentage) Probably no o r definitely no (percentage) Don’t know or no

response (percentage) Total number of

cases a

If yes to the previous question: Do you think this industry can afford to implement this risk

reducing technology, process change, or pollution prevention action wi thout experiencing financial difficulty? (percentage)

31 (82) 2 (5) 5 (13) 38 (100)

Are the current effluent guidelines for this industry difficult to understand, implement, monitor, or enforce? 30 (24) 91 (74) 2 (2) 123 (100)

Do you think the current effluent guidelines for this industry could be revised to promote innovative approaches, such as water quality trading or multimedia benefits? 44 (36) 59 (48) 19 (16) 122 (100)

Given your responses to the previous questions, do you think EPA should revise
the current effluent guidelines for this industry? 63 (51) 60 (49) 0 (0) 123 (100%)

Source: GAO analysis of survey data.

a This column represents all cases for which the survey respondent selected one of the response options, which included “ don ’ t know/no response. ” It does not include responses from individuals who skipped the question entirely.



### These tabulations indicate that a substantial number of cases exist for which states thought that EPA should revise effluent guidelines and also for which they perceived that one or more of EPA ’ s decision

- making factors were present. In 51 percent (63 of 123 cases), state officials said that EPA should revise the effluent guidelines for the corresponding industry. With regard to whether the key decision

- making fact ors were present, state officials reported that effluent posed a significant risk in

57 percent of cases, that technology was available in 31 percent of cases, that the guidelines were difficult to administer in 24 percent of cases, and that revised guidel ines could promote innovative approaches in

36 percent of cases. We had far fewer responses to our question about whether industry could adopt technology without experiencing financial difficulty because that question was applicable only if the respondent said such technology was available. Among these cases, state officials reported that the technology would not cause financial hardship to the industry in 82 percent of cases (31 of 38 cases).

We repeated this analysis after removing the 29 cases representing the three industrial categories whose effluent guidelines are in revision, leaving at most 96 cases for analysis, depending upon the question. Of the remaining cases, state officials said that EPA should revise theAppendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

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- 845 EPA's Effluent Guidelines Program 

### effluent guidelines for a su bstantial percentage of them; they also said that key decision

- making factors were present in a substantial percentage of cases. For example, in 46 percent of these cases, state officials said that EPA should revise the effluent guidelines for the correspo nding industry.

We compared state officials ’ views about whether effluent guidelines

should be revised with their views of each of the factors that EPA uses when considering guideline revisions. For three of the four factors, our results show that when state officials perceived the factor to be present, they were significantly more likely to think that EPA should revise the effluent guid elines for the corresponding industrial category. (We had too few cases with valid responses to the survey question about cost to determine whether that factor was significantly associated with views about guideline revisions.) The risk posed by effluent and the availability of technology were the strongest predictors of states ’ views about the need for guideline revisions. In particular, we found the following:

**•** 

### When state officials perceived effluent from a particular industrial category to pose a significant risk, they were 3.8 times more likely to think that EPA should revise the guidelines for that category than when they did not perceive the effluent to pose a significant risk. Specifically, among the cases in which state officials perceived
eff luent to pose a significant risk, they thought the effluent guidelines

should be revised 75 percent of the time (52 of 69 cases), compared

with 20 percent of the time (10 of 51 cases) when they thought the effluent did not pose a significant risk.

**•** 

### When st ate officials perceived technology to be available to substantially reduce the risk for a particular industrial category, they were 4.3 times more likely to think that EPA should revise the guidelines for that category than when they did not perceive

techn ology to be available. Specifically, among the cases in which these officials perceived technology to be available, they thought EPA should revise the effluent guidelines 84 percent of the time (32 of

38 cases), compared with 20 percent (10 of 51 cases) wh en they thought that technology was not available.

**•** 

### When state officials thought that other factors were present for a particular industrial category, they were 2.3 times more likely to think that EPA should revise the guidelines than when they did not thi nk these factors were present. “ Other factors ” refers to either that the 

# Relationships between Key
Decision

- Making Factors
and States ’ Views about
Whether EPA Should
Revise Effluent GuidelinesAppendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

Page 55 GAO

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- 845 EPA's Effluent Guidelines Program 

### current guidelines were difficult to understand, implement, monitor, or enforce or that revised guidelines could promote innovative approaches. Specifically, when state officials thought that such other factors were present, they thought that EPA should revise its effluent guidelines 70 percent of the time (43 of 61 cases), compared with

30 percent of the time (18 of 60 cases) when they thought these factors were not present.

Table 6 presents the complete results of these bivariate comparisons. We

excluded one of the factors from the discussion above

— namely, whether the industry could afford to implement the technology, process change, or pollution prevention action

— because the response s to this question applied only to the subset of cases for which such a technology, change, or action was available, only 33 of which provided a yes or no response.

In 87 percent of those cases in which the technology was perceived to be affordable (27 of 31 cases), state officials said that EPA should revise its guidelines for the corresponding industry. We repeated this analysis after removing the 29 cases representing the two industrial categories whose effluent guidelines EPA is already revising. We found that, even after removing these cases, the same three factors retained a significant relationship with state officials ’ views about whether effluent guidelines should be revised. This result indicates that these key decision

- making factors appear to inf luence state officials ’ views even for industrial categories whose guidelines EPA is not already revising.

Table 6: State Officials ’ Views about Whether EPA Should Revise the Effluent Guidelines for the Industries Discharging the
Greatest Amount of Toxic E ffluent in Their State, by the Four Factors EPA Considers When Deciding Whether to Revise
Effluent Guidelines

Do you think EPA should revise the current effluent guidelines for this industry?

Probably yes or definitely yes (percentage) Probably no or definitely no (percentage) Total number of cases a

Are the existing effluent guidelines for this industry sufficient on their own

— that is, without additional water

- quality

- based effluent
limits

— to protect your state from significant risks to human health or the environment? (percentage)

Probably yes or definitely yes 10 (20) 41 (80) 51 (100%)

Probably no or definitely no 52 (75) 17 (25) 69 (100)

Total 62 (52) 58 (48) 120 (100)

Is there a technology, process change, or pollution prevention action available to this industry that would substantially reduce any risks that remain after the state applies existing effluent limits?

Probably yes or definitely yes 32 (84) 6 (16) 38 (100)Appendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revi se Effluent
Guidelines

Page 56 GAO

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- 845 EPA's Effluent Guidelines Program Do you think EPA should revise the current effluent guidelines for this industry?

Probably yes or definitely yes (percentage) Probably no or definitely no (percentage) Total number of cases a

Probably no or definitely no (percentage)

10 (20) 41 (80) 51 (100)

Total b 42 (47) 47 (53) 89 (100)

If yes to the previous question: Do you think this industry can afford to implement this risk

- reducing technology, process change, or pollution prevention action without experiencing financial difficulty?

Probably yes or definitely yes 27 (87) 4 (13) 31 (100)

Probably no or definitely no 1 (50) 1 (50) 2 (100)

Total c 28 (85) 5 (15) 33 (100)

Are the current effluent guidelines for this industry difficult to understand, implement, monitor, or enforce or could the current effluent guidelines for this industry be revised to promote innovative approaches?

Probably yes or definitely yes d

43 (70) 18 (30) 61 (100)

Probably no or definitely no 18 (30) 42 (70) 60 (100)

Total a 61 (50) 60 (50) 121 (100%)

Source: GAO analysis of survey data.

a This column represents all cases for which the survey respondent selected one of the response options, which included “ don ’ t know/no response, ” for both the question on whether EPA should revise its effluent guidelines and the question on whether a given factor was present. It does not include responses from individuals who skipped the questions entirely.

b Cases were excluded from this analysis if the response to either question in the cross

- tabulation was

“ Don ’ t know or no response. ”

c This question pertained only to the cases for which respondents answered that a technology, process change, or pollution prevention action was available.

d This category combines two survey questions. Cases in this category were coded as “ probably yes or definitely yes ” if that response was given to either of the two questions.



### To understand how the various decision

- making factors interact to

influence states ’ views about the need for revised effluent guidelines, we used the data from our survey to conduct decision

- tree analysis. We developed the decision tree by splitting the data into smaller and smaller subgroups according to whether state officials perceived each of the factors to be present for a particular industrial category. Beginning with the first factor, risk, we divided the cases into subgroups, depending upon whether state officials perceived the effluent from the particular industry to 

# Decision Tree of States ’
Views about Whether EPA
Should Revise Effluent
GuidelinesAppendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

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- 845 EPA's Effluent Guidelines Program 

### pose a significant risk to human health or the environment. For each of these subgroups, we tabulated the number of cases in which state officials said the effluent guidelines should be revised, compared with the number of cases in which they said the guidelines should not be revised. We then split these subgroups again, according to whether state officials thought that technology was available to substantially reduce the risk. This split resulted in further subgroups. We continued splitting the data into smaller and smaller subgroups by next assessing s tate official ’s views of the cost of technology and finally assessing their views on the presence of other factors. At each step, we stopped splitting the data if (1) the original group had fewer than 10 cases, (2) the resulting subgroups did not differ significantly in terms of the percentages of respondents who said that EPA should revise the guidelines; or (3) the resulting subgroups tended to support the same conclusion as to whether EPA should revise the guidelines. We examined the cases terminating in

each of the branches and found that the overall decision tree was based on a broad variety of industries and states. The resulting decision tree, which is shown in figure 5, has four splits and six branches.Appendix II: Survey of State Water Quality
Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

Page 58 GAO

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- 845 EPA's Effluent Guidelines Program Figure 5: Decision Tree of State Officials ’ Vie ws of Whether EPA Should Revise Effluent Guidelines for Specific Industrial Categories

Note: This analysis is based on 119 industry

- by

- state cases from our survey of state water quality permit writers. Each case represents the views of a single state abo ut a single industry in that state.

a Whether the state official views the effluent from a particular industry to pose a significant risk to human health or the environment, according to their response to the first question on our survey.

b Whether the stat e official views technology to be available to substantially reduce the risk to human health or the environment, according to their response to the second question on our survey.

c Whether the state official views other factors to be present

— such as current guidelines difficult to enforce or revised guidelines able to promote innovative approaches

— according to the fourth and fifth questions in our survey.Appendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

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- 845 EPA's Effluent Guidelines Program d



### The decision tree illustrates how the key decision

- making factors collectively predict states ’ views about whether EPA should revise effluent guidelines, and it corroborates the reliability of our survey data. Overall, when the risk of effluent was perceived to be significant and technology was perceived to be available, state officials overwhelmingly thought the corresponding effluent guidelines should be revised. Even when technology was not perceived to be available, many states still thought the guidelines should be revised if they thought that other factors were present. In particular, in three scenarios, corresponding to three branches of the decision tree, state officials generally said that effluent guidelines

should be revised: Based on responses to the sixth question on our survey, as to whether state officials think EPA
shoul d revise the effluent guidelines for a particular industrial category. The tabulations in parentheses represent the number cases in which state officials answered yes and no, respectively, to this question for each branch of the decision tree.

**•** 

### When state officials thought tha t effluent from an industrial category poses a significant risk to human health or the environment and when they thought technology was available to substantially reduce that risk, they generally said that EPA should revise the effluent guidelines. In such instances, they thought that EPA should revise the effluent guidelines 83 percent of the time (in 30 of 36 cases). This scenario is illustrated by the far left branch of the decision tree.Appendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

Page 60 GAO

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- 845 EPA's Effluent Guidelines Program **•** 

### When state officials thought that effluent from an industrial category poses a significant risk, they generally thought that EPA should revise the effluent guidelines even when they perceived that technology was

not available

— as long as they perceived other factors to be present. In such instances, they thought that EPA should revise its effluent guidelines 83 percent of the time (5 of 6 cases). This scenario is illustrated by the second

- to

- left branch of the decision tree.

**•** 

### When state officials thought that effluent from an industrial category

poses a s ignificant risk, they generally thought that EPA should revise the effluent guidelines even when they did not know if technology was

available

— as long as they perceived other factors to be present. In such instances, these officials thought EPA should revi se its effluent guidelines 100 percent of the time (11 of 11 cases). This scenario is illustrated by the branch of the decision tree in the third column from the right.

By contrast, in two scenarios, state officials thought EPA should not revise the guidel ines. In the primary scenario, officials did not perceive the effluent to pose a significant risk, although officials also thought that guidelines should not be revised when the risk was significant but neither technology nor other factors were present. In particular, our decision tree identified the following two scenarios: 1

**•** 

### When state officials did not think the effluent from a particular industrial category posed a significant risk to human health or the environment, they generally thought that EPA should not revise the corresponding effluent guidelines. In these instances, state officials thought that EPA should not revise the guidelines 80 percent of the time (41 of 51 cases). This scenario is illustrated by the branch of the
decision tree on the far ri ght.

**•** 

### When state officials thought the effluent from a particular industrial category posed a significant risk but that technology was not available and other factors were not present, they generally said that EPA should not revise the effluent guidelines for that industry. In such instances, state officials thought that EPA should not revise the

1 Responses were evenly split when risk was perceived to be present, state officials were uncertain whether technology was available, and they did not report that other factors were present. This split is illustrated by the branch of the decision tree in the second column from the right.Appendix II: Survey of State Water Quality Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines

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### guidelines 100 percent of the time (5 of 5 cases). This scenario is illustrated by the branch of the decision tree in the third column from
the left.

Corresponding to this decision tree, we further examined the data to identify specific industrial categories that presented the strongest evidence for needing to be revised. Because the significance of risk and the presence of technology are the two primary decision

- making factors,

we selected the 30 cases for which states said these two factors were present and for which they said effluent guidelines should be revised.

These cases fa ll into the far left branch of the decision tree in figure 5. These 30 cases represent 14 industrial categories: canned and preserved seafood processing; cement manufacturing; coal mining; fertilizer manufacturing; meat and poultry products; metal finishing; metal molding and casting; oil and gas extraction; ore mining and dressing; petroleum refining; pulp, paper, and paperboard; steam electric power generation; sugar processing; and timber products processing. We added industries

that state officials cite d in the second section of our survey, in which we asked them to identify industries that were not among the top five dischargers in their state. This addition lengthened the list by 22 cases, representing 7 additional industrial categories: centralized wa ste treatment, dairy products processing, electrical and electronic components, electroplating, grain mills manufacturing, landfills, and pharmaceutical manufacturing. In total, therefore, we identified 52 cases representing 21 industrial categories for which state officials thought effluent guidelines should be revised. Of these 52 cases, 39 represent industrial categories whose guidelines EPA is not already revising. 

# Industrial Categories for Which States Thought
Effluent Guidelines Should
Be RevisedAppendix III: Additional Details on Industrial Categories with Effluent Guidelines

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### EPA has promulgated effluent guidelines for 58 industrial categories beginning in the mid

- 1970s. EPA has also revised the guidelines for most of those industries, although many have not been revised in recent years. As described elsewhere in this report, EPA uses a screening process to determine which categories may warrant further review and possible revision. According to our analysis, since EPA began using its current screening process in 2003, more than half the industrial categories with

ef

fluent guidelines did not advance beyond the screening phase in any year from 2003 to 2010 because, during a given 2

- year screening cycle, the relative toxicity of their pollutant discharges did not put them among the top 95 percent of discharge hazard. Ta ble 7 provides further information on the industrial categories, including the year their effluent guidelines were first promulgated, the year the guidelines were most recently revised, and the year(s) in 2004 through 2010 when their hazard ranking scores came within the top 95 percent.

Table 7: Years Effluent Guidelines Were Promulgated and Revised for Industrial Categories and Years the Categories Were in the Top 95 Percent of Total Reported Hazard, 2004

- 2010

Year(s) the industrial category was in the top 95 percent of total hazard

Industrial category Year promulgated Year most recently
revised 2010 2008 2006 2004

Airport deicing 2012 Not revised

Aluminum forming 1983 1988

Asbestos manufacturing 1974 1995

Battery manufacturing 1984 1986

Canned and preserved fruits and vegetables processing 1974 1995

Canned and preserved seafood processing 1974 1995

Carbon black manufacturing 1978 1995

Cement manufacturing 1974 1995 X

Centralized waste treatment 2000 2003 X

Coal mining 1985 2002 X

Coil coating 1982 2007

Concentrated animal feeding operations 2003 2008

Concentrated aquatic animal production 2004 Not revised

Construction and development 2009 Not revised

Copper forming 1983 1986

Dairy products processing 1974 1995 

# Appendix III: Additional Details on Industrial Categories with Effluent GuidelinesAppendix III: Additional Details on Industrial Categories with Effluent Guidelines

Page 63 GAO

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- 845 EPA's Effluent Guidelines Program Year(s) the industrial category was in the top 95 percent of total hazard

Industrial category Year promulgated Year most recently
revised 2010 2008 2006 2004

Electrical and electronic components 1983 1985

Electroplating 1981 1986

Explosives manufacturing 1976 1995

Ferroalloy manufacturing 1974 1995

Fertilizer manufacturing 1974 1995 X X X X

Glass manufacturing 1974 1995

Grain mills 1974 1995

Gum and wood chemicals manufacturing 1976 1995

Hospital 1976 1995

Ink formulating 1975 1995

Inorganic chemicals manufacturing 1982 1984 X X X X

Iron and steel manufacturing 1982 2005

Landfills 2000 2000 X

Leather tanning and finishing 1982 1996

Meat and poultry products 2004 Not revised

Metal finishing 1983 1986

Metal molding and casting 1985 1986 X

Metal products and machinery 2003 Not revised

Mineral mining and processing 1975 1995 X

Nonferrous metals forming and metal powders 1985 1989

Nonferrous metals manufacturing 1984 1990 X X X X

Oil and gas extraction 1979 2012 a X

Ore mining and dressing 1982 1988 X X X X

Organic chemicals, plastics, and synthetic fibers 1987 1993 X X X X

Paint formulating 1975 1995

Paving and roofing materials (tars and asphalt) 1975 1995

Pesticide chemicals 1978 1998 X X X

Petroleum refining 1982 1985 X X X X

Pharmaceutical manufacturing 1983 2003

Phosphate manufacturing 1974 1986 X

Photographic 1976 Not revised

Plastics molding and forming 1984 1985 X X

Porcelain enameling 1982 1985

Pulp, paper, and paperboard 1998 2012 a X X X XAppendix III: Additional Details on Industrial Categories with Effluent Guidelines

Page 64 GAO

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- 845 EPA's Effluent Guidelines Program Year(s) the industrial category was in the top 95 percent of total hazard

Industrial category Year promulgated Year most recently
revised 2010 2008 2006 2004

Rubber manufacturing 1974 1995 X

Soap and detergent manufacturing 1974 1995

Steam electric power generating 1982 2012 a X X X

Sugar processing 1974 1995

Textile mills 1982 1983 X X X

Timber products processing 1981 2004 X

Transportation equipment cleaning 2000 2005

Waste combustors 2000 2004 X X

Source: GAO analysis of EPA documentation.

Notes: In its screening phase, EPA ranks some industrial categories that are not subject to existing effluent guidelines and are therefore not included in this table. When EPA revised the effluent guideline for an industrial category, it may have revised just a portion of the guideline. For example, EPA may have added pollutants or changed the limits for a particular industrial category or added a new subcategory. In some cases, EPA may have made revisions that did not affect the stringency of the effluent guidelines. With the exception of three 2012 revisions, we did not determine the nature of
the revisions shown in this table.

a The revisions to these industrial categories did not increase the stringency of the effluent guidelines.Appendix IV: Comments from the Environmental Protection Agency

Page 65 GAO

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# Appendix IV: Comments from the Environmental Protection AgencyAppendix IV: Comments from the
Environmental Protectio n Agency

Page 66 GAO

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- 845 EPA's Effluent Guidelines ProgramAppendix V: GAO Contact and Staff Acknowledgments

Page 67 GAO

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- 845 EPA's Effluent Guidelines Program 

### David C. Trimble, (202) 512

- 3841 or trimbled@gao.gov

In addition to the individual named above, Susan Iott (Assistant Director), Elizabeth Beardsley, Mark Braza, Ross Campbell, Ellen W. Chu, Heather Dowey, Catherine M. Hurley, Paul Kazemersky, Kelly Rubin, Carol Hernstadt Shulman, and Kiki Theodoropoulos made significant contributions to this report. Wyatt R. Hundrup, Michael L. Krafve, Armetha Liles, and Jeffrey R. Rueckhaus also made important contributions to this report. 

# Appendix V: GAO Contact and Staff Acknowledgments

GAO Con tact

Staff Acknowledgments

(361320)

### The Government Accountability Office, the audit, evaluation, and investigative arm of Congress, exists to support Congress in meeting its constitutional responsibilities and to help improve the performance and accountability of the federal government for the American people. GAO examines the use of public funds; evaluates federal programs a nd policies; and provides analyses, recommendations, and other assistance to help Congress make informed oversight, policy, and funding decisions. GAO’s commitment to good government is reflected in its core values of accountability, integrity, and reliabi lity.

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