United States

Environmental Protection Agency



# Response to Comments for the Preliminary 2012 Effluent Guidelines Program Plan

September 2014This page intentionally left blankii



# U.S. Environmental Protection Agency Office of Water (4303T) 1200 Pennsylvania Avenue, NW Washington, DC 20460

Docket EPA

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- 0824 www.regulations.gov DCN 07979This page intentionally left blankTable of Contents

Table of Contents

Response to Comments for the Preliminary 2012 Effluent Guidelines Program Plan (Section 304(m) of the Clean Water Act)

iv Page

Introduction

................................ ................................ ................................ ................................ ... 1 Organization of the Comment Response Document

................................ ................................ .. 1
Section 1

– ELGs General

................................ ................................ ................................ ............ 6

Section 1.1

– Support for New Tools

................................ ................................ ................. 6 Section 1.2

– Preliminary 2012 Plan Request for Data

................................ ...................... 7 Section 1.3

– Adequacy of Data Sources (DMR and TRI)

................................ ................ 8 Section 1.4

– Preliminary 2012 Plan Timeliness

................................ .............................. 10 Section 1.5

– Preliminary 2012 Plan Conclusions

................................ ........................... 11 Section 1.6

– Current Status of ELGs Under Development

................................ ............. 13 Section 1.7

– Staffing

................................ ................................ ................................ ....... 14 Section 1.8

– EPA Office Coordination

................................ ................................ ........... 15 Section 1.9

– Sharing Information Early in Planning Process

................................ ......... 17 Section 1.10

– Engaging with States

................................ ................................ ................ 18 Section 1.11

– Prioritizing Industrial Category Reviews

................................ ................. 19 Section 1.12

– Approach to Evaluate Non

- Toxic Pollutants

................................ ............ 20 Section 1.13

– Use of Industry Surveys

................................ ................................ ........... 22 Section 1.14

– Limitations of Toxic Weighting Factors

................................ .................. 23 Section 1.15

– Pulp and Paper Industry Review

................................ .............................. 25

Section 2

– Metal Finishing

................................ ................................ ................................ ........ 26

Section 2.1

– Review of Metal Finishing Category

................................ ......................... 26

Section 3

– Coastal Oil and Gas (O&G)

................................ ................................ .................... 27

Section 3.1

– Current O&G ELGs

................................ ................................ .................... 27 Section 3.2

– Remove Cook Inlet Exemption

................................ ................................ .. 32 Section 3.3

– CWA Goals Not Attained in Cook Inlet

................................ ..................... 35 Section 3.4

– Cook Inlet Environmental Impacts

................................ ............................. 37 Section 3.5

– Availability of Zero Discharge Technology

................................ ............... 43 Section 3.6

– Economic Feasibility of Zero Discharge Technology

................................ 46

Section 4

– Seafood Processing

................................ ................................ ................................ .. 49

Section 4.1

– Requirements for Grinding Waste

................................ .............................. 49 Section 4.2

– Off

- shore Processor Applicability

................................ .............................. 51 Section 4.3

– Revise General Permit Requirements

................................ ......................... 53 Section 4.4

– Quarterly Monitoring

................................ ................................ .................. 54 Section 4.5

– Remote Processor Economic Impacts

................................ ........................ 56 Section 4.6

– Non

- Water Quality Impacts

................................ ................................ ....... 57 Section 4.7

– Grind Size Environmental Impacts

................................ ............................ 58Table of Contents

Table of Contents

Response to Comments for the Preliminary 2012 Effluent Guidelines Program Plan (Section 304(m) of the Clean Water Act)

v Section 4.8

– Small Vessel Grinder Feasibility

................................ ................................ 59 Section 4.9

– Mobile Seafood Processing

................................ ................................ ........ 61

Section 5

– Dental Amalgam

................................ ................................ ................................ ...... 67

Sectio n 5.1

– Call for EPA Decision

................................ ................................ ................ 67 Section 5.2

– Drop Rule

................................ ................................ ................................ ... 69 Section 5.3

– Communication with EPA

................................ ................................ .......... 70 Section 5.4

– Local Dental Amalgam Separator Programs

................................ .............. 72 Section 5.5

– Economic Impacts on POTWs

................................ ................................ ... 74

Section 6

– Coalbed Methane (CBM)

................................ ................................ ........................ 76

Section 6.1

– Support to Delist CBM

................................ ................................ ............... 76 Section 6.1.1 General Support to Delist CBM

................................ ...................... 76 Section 6.1.2 Change in Economics of Industry

................................ ................... 80 Section 6.1.3 Effectiveness of State Regulation

................................ .................... 89 Section 6.1.4 Environmental Benefits

................................ ................................ ... 94 Section 6.1.5 Unique Characteristics of CBM Production

................................ .... 95 Section 6.1.6 Decline in Industry and Wastewater Production

............................. 97 Section 6.1.7 Other Support to Delist CB M

................................ ........................ 101 Section 6.2

– Opposition to Delist CBM

................................ ................................ ........ 103 Section 6.2.1 General Opposition to Delist CBM

................................ ............... 103 Section 6.2.2 Water Quality Impacts

................................ ................................ ... 105 Section 6.2.3 Change in Economics of Industry

................................ ................. 110 Section 6.3

– Surface Water Discharge Practices

................................ .......................... 114 Section 6.4

– Impacts from Surface Water Discharges

................................ .................. 116 Section 6.5

– Legal Authority

................................ ................................ ........................ 120 Section 6.6

– Expansion to Hydraulic Fracturing

................................ .......................... 123 Section 6.7

– New CBM Data

................................ ................................ ........................ 126 Section 6.8

– Comments on Analyses to Evaluate CBM Industry

................................ . 135

Section 7

– Chlorine and Chlorinated Hydrocarbons (CCH)

................................ ............... 137

Section 7.1

– Support to Delist CCH

................................ ................................ ............. 137 Section 7.2

– New CCH Data

................................ ................................ ......................... 139

Section 8

– Late Comments

................................ ................................ ................................ ...... 140

Section 8.1

– Late Comments Received on the Preliminary 2012 Plan

......................... 140This page intentionally left blankIntroduction

1 Introduction
This document contains EPA’s responses to the public comments received on the Preliminary Effluent Guidelines Program Plan for 201 2 . The Plan, which EPA is required to develop by section 304(m) of the Clean Water Act, describes the current status of EPA's planning for the effluent guidelines program, presents the results of EPA's an nual review of the effluent guidelines it has already promulgated for industrial categories, and identifies industrial categories that EPA expects to investigate further for the possible development or revision of effluent limitations guidelines. EPA publi shed a notice inviting comment on the preliminary plan on August 7 , 201 3 ( 78 FR 48159 ). Documents supporting the Preliminary 2012 Plan can be located on EPA’s online docket system ( www.regulations.gov ) by conducting a search with the Document Control Number (DCN) and docket number (EPA

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Organization of the Comment Response Document

This document contains excerpts from the public comment letters that were parsed into eight broad categories and additional sub

- issues. The Table of Conten ts provides the complete list of issues and subissues.

EPA provided a response that applies to each excerpt within a given comment excerpt group or sub

- group. A horizontal line indicates the end of each comment excerpt group or sub

- group and its associate d response s . See the example on the next page.

Also as shown in the example, each comment excerpt is immediately preceded by several identifiers: (1) a unique comment number, which consists of the online docket number and an additional number that disting uishes between comments from that letter; (2) the name of the organization and person who submitted the comment; and (3) the organization type (e.g., private citizen, trade association, advocacy group). For example, excerpt number “ EPA

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- 1 ” identifies the first comment from the comment letter with the online docket number EPA

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- 0211 , submitted in response to the August 7, 2013 notice.

Index 1 and Index 2 list the public comments received by EPA, sorted by online docket number (e.g., EPA

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- 0211 ) and organization name, respectively.Section 1

– ELGs General Section 1.1

– Support for New Tools

2 Section 1

– ELGs General

Section 1. 1

– Support for New Tools

Comment Number: EPA

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– 15 Organization: Association of Clean Water Administrators Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:

The 2012 Preliminary ELG Plan describes a great number of deliverables intended for release wi thin the next five years. These include a biological based methodology, and new tools to assess nanomaterials, hormone disruptors, mutagenic, and bioaccumulative effects, and impacts on the entire ecosystem. These tools would be of great benefit to states for guidance and to measure progress in improving environmental quality.

Response:

EPA disagrees with the suggestion by the commenter that EPA committed to release, within the next five years, "a biological based methodology, and new tools to assess nanomaterials, hormone disruptors, mutagenic, and bioaccumulative effects, and impacts on the entire ecosystem." EPA did not make commitments to such "deliverables" in the 2012 Preliminary ELG Plan. In the 2012 ELG Plan, EPA is announcing its plan to con duct four new industrial wastewater discharge hazard assessments including

-- 1) Identifying Pass

- Through Pollutants: Sewage Sludge, 2) identifying New Pollutants/Industries Via EPA's Toxic Chemical Control Programs, 3) identifying New Waste Streams from A ir Pollution Control and 4) identifying New Industries: Potential TRI Expansion Sectors. Comment E xcerpt I dentifiers

A horizontal line denotes the end of each comment excerpt group and related response s. Heading indicates the issue and sub

- issue being presented

.

Response corresponds to the excerpt directly above the response

.Index 1: Sorted by Comment Number

3 Preliminary 2012 Effluent Guidelines Program Plan Commenter Index

Index 1: Sorted by Comment Number

Comment Number Organization Name Issue Addressed
EPA

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- A1 Northern Plains Resource Council 6.2.1, 6.2.2, 6.2.3, 6.3, 6.4, 6.5, and 6.6
EPA

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- 0200

- A2 Westlake Vinyls Company 7.2
EPA

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- A1 Independent Petroleum Association of America (IPAA) 6.1.1, 6.1.2, 6.1.3, 6.1.4, and 6.1.5
EPA

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- 0202

- A1 Western Energy Alliance 6.1.2, 6.1.3, and 6.1.6
EPA

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- 0203

- A1 CONSOL Energy, Inc. 6.1.6
EPA

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- 0204

- A1 American Chemistry Council 7.1
EPA

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- A1 Montana Petroleum Association, Inc. 6.1.2, 6.1.3, and 6.1.4
EPA

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- A1 Vinyl Institute 7.1
EPA

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- A1 Tuscaloosa County Commission 6.1.2 and 6.1.3
EPA

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- A1 Independent Oil and Gas Association of West Virginia 6.1.1, 6.1.2, 6.1.3, and 6.1.7
EPA

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- A1 Pioneer Natural Resources USA, Inc. 6.1.1, 6.1.2, and 6.1.6
EPA

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- A1 Ohio Oil and Gas Association 6.1.1, 6.1.2, 6.1.3, and 6.1.6
EPA

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- A2 Cook Inletkeeper 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6
EPA

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- 0212

- A2 WPX Energy, Inc. 6.1.2, 6.1.3, and 6.1.6
EPA

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- A2 Freezer Longline Coalition 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, and 4.9
EPA

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- A1 American Petroleum Institute 6.1.2, 6.1.3, and 6.1.6
EPA

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- 0215

- A1 Coalbed Methane Association of Alabama 6.1.1
EPA

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- A2 National Association of Clean Water Agencies (NACWA) 5.1, 5.2, 5.3, 5.4, and 5.5

EPA

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- A2 Association of Clean Water Administrators (ACWA) 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.13, 1.14, and 2.1
EPA

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- A2 American Forest & Paper Association (AF&PA) 1.15
EPA

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- A2 Clean Water Action et al. 6.2.2, 6.2.3, 6.4, 6.5, 6.6, and 6.8
EPA

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- A3 Native Village of Eklutna (NVE) 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6
EPA

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- A2 Enervest Operating, LLC 6.1.2

EPA

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- A1 Perkins Cole on behalf of the At Sea Processors Association and the Pacific Seafood Processors Association 4.9
EPA

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- A1 Petroleum Association of Wyoming 6.1.2 and 6.1.6Index 1: Sorted by Comment Number

4 Preliminary 2012 Effluent Guidelines Program Plan Commenter Index

Index 1: Sorted by Comment Number

Comment Number Organization Name Issue Addressed
EPA

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- 0225 Natural Resources Defense Council 6.7
EPA

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- 0226 Wyoming Outdoor Council & Powder River Basin Resource Council 6.2.2
EPA

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- 0227 Natural Resources Defense Council 8.1Index 2: Sorted by Organization Name

5 2010 Effluent Guidelines Program Plan Commenter Index

Index 2: Sorted by Organization Name

Organization Name Comment Number Issue Addressed American Chemistry Council EPA

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- A1 7.1 American Forest & Paper Association (AF&PA) EPA

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- A2 1.15 American Petroleum Institute EPA

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- A1 6.1.2, 6.1.3, and 6.1.6
Association of Clean Water Administrators (ACWA) EPA

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- A2 1.1, 1.2, 1.3, 1.4, 1.5, 1.6, 1.7, 1.8, 1.9, 1.10, 1.11, 1.12, 1.13, 1.14, and 2.1 Clean Water Action et al. EPA

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- A2 6.2.2, 6.2.3, 6.4, 6.5, 6.6, and 6.8 Coalbed Methane Association of Alabama EPA

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- A1 6.1.1 CONSOL Energy, Inc. EPA

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- A1 6.1.6 Cook Inletkeeper EPA

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- A2 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6 Enervest Operating, LLC EPA

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- A2 6.1.2 Freezer Longline Coalition EPA

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- A2 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, and 4.9 Independent Oil and Gas Association of West Virginia EPA

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- A1 6.1.1, 6.1.2, 6.1.3, and 6.1.7 Inde pendent Petroleum Association of America (IPAA) EPA

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- A1 6.1.1, 6.1.2, 6.1.3, 6.1.4, and 6.1.5 Montana Petroleum Association, Inc. EPA

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- A1 6.1.2, 6.1.3, and 6.1.4 National Association of Clean Water Agencies (NACWA) EPA

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- A2 5.1, 5.2, 5.3, 5.4, and 5.5 Native Village of Eklutna (NVE) EPA

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- A3 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6 Natural Resources Defense Council EPA

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- 2010

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- 0225 6.7 Natural Resources Defense Council EPA

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- 0227 8.1 Northern Plains Resource Council EPA

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- 2010

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- A1 6.2.1, 6.2.2, 6.2.3, 6.3, 6.4, 6.5, and 6.6 Ohio Oil and Gas Association EPA

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- 2010

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- A1 6.1.1, 6.1.2, 6.1.3, and 6.1.6 Perkins Cole on behalf of the At Sea Processors Association and the Pacific Seafood Processors Association EPA

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- A1 4.9 Petroleum Association of Wyoming EPA

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- 2010

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- A1 6.1.2 and 6.1.6 Pioneer Natural Resources USA, Inc. EPA

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- 2010

- 0824

- 0209

- A1 6.1. 1, 6.1.2, and 6.1.6 Tuscaloosa County Commission EPA

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- 2010

- 0824

- 0207

- A1 6.1.2 and 6.1.3 Vinyl Institute EPA

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- 2010

- 0824

- 0206

- A1 7.1 Western Energy Alliance EPA

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- 2010

- 0824

- 0202

- A1 6.1.2, 6.1.3, and 6.1.6 Westlake Vinyls Company EPA

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- 2010

- 0824

- 0200

- A2 7.2 WPX Energy, Inc. EPA

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- 2010

- 0824

- 0212

- A2 6.1.2, 6.1.3, and 6.1.6 Wyoming Outdoor Council & Powder River Basin Resource Council EPA

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- 0226 6.2.2Section 1

– ELGs General Section 1.1

– Support for New Tools

6 Section 1

– ELGs General

Section 1.1

– Support for New Tools

Comment Number: EPA

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– 15 Orgniazation : Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:

The 2012 Pr eliminary ELG Plan describes a great number of deliverables intended for release within the next five years. These include a biological based methodology, and new tools to assess nanomaterials, hormone disruptors, mutagenic, and bioaccumulative effects, an d impacts on the entire ecosystem. These tools would be of great benefit to states for guidance and to measure progress in improving environmental quality.
Response:
EPA disagrees with the suggestion by the commenter that EPA committed to release, within the next five years, "a biological based methodology, and new tools to assess nanomaterials, hormone disruptors, mutagenic, and bioaccumulative effects, and impacts on the entire ecosystem." EPA did not make commitments to such "deliverables" in the 2012 Preliminary ELG Plan. In the 2012 ELG Plan, EPA is announcing its plan to conduct four new industrial wastewater discharge hazard assessments including

-- 1) Identifying Pass

- Through Pollutants: Sewage Sludge, 2) identifying New Pollutants/Industries Via EPA's Toxic Chemical Control Programs, 3) identifying New Waste Streams from Air Pollution Control and 4) identifying New Industries: Potential TRI Expansion Sectors.Section 1

– ELGs General Section 1.2

– Preliminary 2012 Plan Request for Data

7 Section 1.2

– Preliminary 2012 Plan Request for Data

Comment Number: EPA

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– 14 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:
States were encouraged by the fact that the 2012 Preliminary ELG Plan requests information about changes to control technology, processes, and operating methods in order to further evaluate existing categories.
Response:
EPA agrees with the commenter that it is appropriate to investigate wastewater treatment technology information during the annual review process, including information on changes to control technology, processes, and operating methods. EPA plans to continue including treatment technology assessments in its annual reviews into the future and also plans t o include other specific information investigations as well.Section 1

– ELGs General Section 1.3

– Adequacy of Data Sources (DMR and TRI)

8 Section 1.3

– Adequacy of Data Sources (DMR and TRI)

Comment Number: EPA

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– 12 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Comme nter Type: State Representing Organization

Comment Excerpt Text:
States are concerned with the adequacy of the Toxics Release Inventory (TRI), Targeted National Sewage Sludge Survey, and Discharge Monitoring Report (DMR) reviews to provide a reasonable screening tool for emerging pollutants of concern, or even existing chemicals. EPA’s priority pollutant list has not been updated since 1981. DMRs and sludge monitoring reports generally only include a very small number of parameters. TRI has reporting thr esholds and exceptions, and therefore does not provide complete data. Due to these data gaps, it is doubtful that this is an effective way to identify industries that should be considered for review. Further, when an industrial class is evaluated it should be determined if the industries are truly representative of the group as a whole. 2

The Government Accountability Office (GAO) 3 stated: “[W]ithout a more thorough and integrated screening approach that both uses improved hazard data and considers informati on on treatment technology, EPA cannot be certain that the effluent guidelines program reflects advances in the treatment technologies used to reduce pollutants in wastewater.” Any “screening approach” which does not cast a wider net than TRI and priority pollutants is unlikely to yield data useful for assessing whether discharges from an industry sector are likely to cause environmental harm.

2 For example, in the 2011 Annual Effluent Guidelines Report, Kodak and General Motors were used to represent the m etal finishing category. Silver is likely the result of Kodak’s photographic business, and would not be representative of pollutant loadings from other metal finishers. Further, the PCBs in GM’s discharge were from remediation, and therefore do not represe nt conditions and pollutants found at metal finishers.

3 See “GAO Report Report to the Ranking Member, Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, House of Representatives: EPA Has Improved Its Review of Effluent Guidelines but Could Benefit from More Information on Treatment Technologies” (Sept. 2012) at pg. 41, available at http://www.gao.gov/assets/650/647992.pdf.
Response:
EPA disagrees with the commenter that using Toxics Release Inventory (TRI) an d Discharge Monitoring Report (DMR) data do not provide an effective way to identify industries for further review in the effluent guidelines planning process. EPA has found the TRI and DMR data quite useful for identifying industry pollutant discharges f or further review. For example, this data helped identify discharges from the Steam Electric Power Generating point source category and the Chlorine and Chlorinated Hydrocarbon segment of the Organic Chemicals, Plastics, andSection 1

– ELGs General Section 1.3

– Adequacy of Data Sources (DMR and TRI)

9 Synthetic Fibers point source category for further review and possible rulemakings. Because TRI and DMR provide national

- scale data on industrial wastewater pollutant discharges, EPA plans to continue to use these data sources for its effluent guidelines review. Furthermore, few, if any, other comprehensive data sources exist that could be used in a national

- scale industry

wide analysis, and the commenter has not offered any alternative sources of data that would be more appropriate for a screening analysis.

EPA agrees, however, with the commenter that TRI and DMR do not provide "complete data" about every possible pollutant discharged, including pollutants of emerging concern. The Agency is also aware of the GAO report cited by the commenter. For this reason, in order to evaluate additional information sources, EPA initiated a new odd

- and even

- year annual review methodology beginning in 2012, under which it is conducting a toxicity ranking analysis based on DMR and TRI data in the odd year, supplemented by addit ional hazard data sources in the even year. The additional hazard data sources may include data and information gathered from other EPA offices, as well as other sources. This new approach will expand EPA’s ability to identify new pollutants of concern an d to identify wastewater discharges in industrial categories not currently regulated by ELGs. An example of this is EPA's ongoing investigation into the industrial wastewater discharge implications of the nanomaterial manufacturing industry.

In addition, EPA initiated a comprehensive review of technical literature to document the performance of new and improved industrial wastewater treatment technologies. EPA is capturing these performance data in a comprehensive and searchable industrial wastewater
treat ment technology (IWTT) database. EPA intends to use the IWTT database in its screening process in future annual reviews to quantify the effectiveness of technologies for removing pollutants of concern from specific industrial wastewater discharges.

EPA wis hes to clarify, given the example provided by the commenter, that its review of discharges from Kodak and General Motors, reported in in the 2011 Annual Effluent Guidelines Report, were not "used to represent the metal finishing category." Instead, EPA re viewed discharges reported by Kodak and General Motors during the 2011 Annual Review because they were the top discharges, in terms of toxic weighted pound equivalent (TWPE), in the Metal Finishing Point Source Category. EPA's practice is to review specif ic facility discharges if they are responsible for the majority of the TWPE in a point source category to determine if the discharges were accurately reported and to understand the pollutants and processes contributing to the discharges. Whenever EPA find s discharges at specific facilities that do constitute a hazard, EPA conducts a review to determine if such discharges are representative of the industry category as a whole. This is an important criterion for determining whether new or revised effluent g uidelines are warranted.Section 1

– ELGs General Section 1.4

– Preliminary 2012 Plan Timeliness

10 Section 1.4

– Preliminary 2012 Plan Timeliness

Comment Number: EPA

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– 3 Organization : Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

C omment Excerpt Text:
States are concerned about the lack of timeliness of the issuance of this 2012 Preliminary ELG Plan. In previous years, Preliminary ELG Plans were issued the year prior to the year addressed in the Plan (i.e., the 2010 Preliminary ELG Plan was issued in De cember 2009). We are now in 2013 evaluating a 2012 Preliminary ELG Plan, and the Agency is already beginning work on a 2014 Preliminary ELG Plan. States are concerned that the 2012 Preliminary Plan is of limited utility as a planning tool, and the feedback states provide will also be of limited use. States encourage EPA to prioritize future Preliminary ELG Plan issuance, to specifically identify roadblocks to timeliness, and to work to remove such roadblocks for the 2014 Preliminary ELG Plan.
Response:
EPA agrees with the commenter that timely issuance of effluent guidelines plans can help states with their own planning processes. The Agency aims to publish Final Plans in their corresponding calendar year, after providing an opportunity for public revie w and comment on a Preliminary Plan, consistent with Clean Water Act section 304(m), 33 U.S.C. § 1314(m). In order to maintain this schedule, EPA is publishing its Final 2012 Plan concurrently with the Preliminary 2014 Plan. EPA does not agree that a Pla n becomes of "limited utility" if it is issued later than expected, or that comments received thereon are of "limited use," as each Plan builds on prior Plans, and EPA considers all comments received on the Plans. Indeed, EPA will consider all comments re ceived on the Final 2012 Plan, as well as the Preliminary 2014 Plan, as it works toward issuance of a Final 2014 Plan.Section 1

– ELGs General Section 1.5

– Preliminary 2012 Plan Conclusions

11 Section 1.5

– Preliminary 2012 Plan Conclusions

Comment Number: EPA

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– 1 Organization: Association of Clean Water Admini strators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:
ELGs and related technology

- based effluent limitations are one of the cornerstones of the CWA. State water programs rely heavily on EAD to research and collect the necessary data to determine pollutants of concern and technology

- based limits for various industrial groups. Most states lack the resources and authorities to undertake this kind of extensive research, and were the states required to make these decisions, industries could be subject to varying limits and requirements. As such, states generally support establishment of ELG standards rather than best professional judgment standards (BPJ). The 2012 Preliminary ELG Plan falls short of moving ELG development forward, in that no ELG development is proposed. More specifically, EPA concludes that no new industrial wastewater discharges warrant new or revised guidelines, two industries warrant delisting, and one industry study concluded that an ELG is not necessary. The plan does recommend additional study for three point source categories. While states are disappointed to see the lack of concrete action, states do not recommend that EPA spend its limited ELG resources to further revise the 2 012 Preliminary ELG Plan, but instead improve the process and move the program forward through the 2014 Preliminary ELG Plan.
Response:
With the 2012 Annual Review of effluent guidelines, the results of which are presented in the Final 2012 and Prelimina ry 2014 Effluent Guidelines Program Plans, EPA established a new effluent guidelines review methodology that will be implemented in future years. This new methodology aims to augment the methods and data sources EPA uses to identify industrial categories f

or which new or revised effluent limitations guidelines and pretreatment standards may be developed. The approach combines the Toxicity Ranking Analysis (TRA) EPA has used as the basis of its annual reviews for more than a decade, with the analyses of new industry hazard data sources not included in the TRA, and an expanded review of new or improved treatment technologies. EPA will use the TRA approach every other year and will evaluate new hazard data sources in the intervening years. This approach will ex pand EPA’s ability to identify new pollutants of concern and to identify wastewater discharges in industrial categories not currently regulated by ELGs. The new data sources and reviews will also enhance EPA’s ability to screen industrial wastewater discha rges based on a broader set of hazard data and enable EPA to account for advances in treatment technologies much earlier in the review process.
EPA does not agree with the commenter that it is “fall[ing] short of moving ELG development forward,” where appr opriate. While EPA is discontinuing two industry effluent guidelines rulemakings (Coalbed Methane extraction and Chlorine and Chlorinated Hydrocarbon manufacturing) and has concluded, after study, that two other industries (Meat and Poultry Products and P ulp, Paper and Paperboard manufacturing) do not warrant a guideline revision at this time, EPA is currently undertaking a rulemaking to establish revised or new effluent guidelines for the Steam Electric industry, the Unconventional Oil and Gas Extraction industrySection 1

– ELGs General Section 1.5

– Preliminary 2012 Plan Conclusions

12 and for the discharge of Dental Amalgam in the dental industry. In addition, EPA has announced that it will be further investigating certain additional industries for potential new or revised guidelines in the future. Given these efforts, EPA is making substantial progress through the effluent guidelines program to better control harmful wastewater discharges from industry in the United States.
Regardless, EPA welcomes additional suggestions of ways to identify new cat egories of industry or existing regulations that warrant revision.Section 1

– ELGs General Section 1.6

– Current Status of ELGs Under Development

13 Section 1.6

– Current Status of ELGs Under Development

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 10 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:
The Association encourages EPA to include the current status of ELGs under development in future Preliminary Plans. For example, states would be interested to hear the status of the dental amalgam ELG. EPA initiated the rulemaking process several years ago for this category, but no ELG proposal has been released to date. The Association encourages EPA to share the status of the rulemaking.
Response:
EPA agrees with the commenter tha t including information about the current status of effluent guidelines rulemakings under development in Effluent Guidelines Plans is appropriate and may be valuable to the public. EPA endeavors to include the most accurate information about the status of relevant rulemakings in each Plan published. EPA typically provides a brief status or expected issuance dates of ELGs undergoing development in each Preliminary and Final Plan, as is true in the Final 2012 and Preliminary 2014 Plans. The commenter has no t specified whether there are other types of information about the status of ongoing rulemakings that may be useful to the public, but EPA would consider providing additional information if the commenter were more specific.
Regarding Dental Amalgam, EPA i s currently working on a proposed effluent guideline to control wastewater containing dental amalgam wastes.Section 1

– ELGs General Section 1.7

– Staffing

14 Section 1.7

– Staffing

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 2 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:
States remain concerned by the reduction of EPA staff working on ELGs and pretreatment standards. This reduction has impacted the Agency’s ability to address ELGs and pre treatment standards that are in need of updates and/or would benefit from additional guidance and technical support materials. States recommend that EPA increase the staff allocated to working on ELGs.
Response:
EPA does not agree with this commenter tha t the effluent limitations guidelines program is insufficiently staffed. Under current congressionally authorized budgets, EPA has assigned an appropriate number of staff to the planning and development of new or revised effluent guidelines, as well as de velopment of guidance and technical support materials, where warranted.Section 1

– ELGs General Se ction 1.8

– EPA Office Coordination

15 Section 1.8

– EPA Office Coordination

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 4 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter T ype: State Representing Organization

Comment Excerpt Text:
States provide the following more detailed suggestions regard ing EPA’s proposed improvements to the ELG planning process, plus some additional suggestions:
a. Information regarding innovative po llution control or pollution prevention technologies, and manufacturing approaches. States agree that EPA should use the public notice and comment opportunity associated with issuance of a Preliminary ELG Plan to supplement the record with information rega rding these technologies. At the same time states encourage EPA to do more to integrate information available to EPA in others parts of the Agency into the ELG program. For example:

b . With respect to screening for toxics, EPA has several internal sources which could help them in this in the Office of Research and Development. For example, the “Chemical Safety for Sustainability” branch’s June 2012 report1 frames the problem statement this way: “Although chemicals are essential to modern life, we lack innov ative, systematic, effective and efficient approaches and tools to inform decisions that reduce the environmental and societal impact of chemicals while increasing economic value.”
Response:
EPA agrees with the commenter that it is appropriate to conside r data and information from other EPA offices as part of the ELG planning process. Beginning in 2012, EPA initiated a new odd and even year annual review methodology, conducting a toxicity ranking analysis based on DMR and TRI data in the odd year, supple mented by additional hazard data sources in the even year. The additional hazard data sources include data and information gathered from other EPA offices , including the Office of Research and Development (ORD), as well as other sources.

In its 2012 Annual Review, EPA evaluated additional information sources and coordinated with other EPA offices to identify new chemicals of concern in industrial wastewater. Specifically, the Office of Water's Engineering and Analysis Division (EAD) reviewed the Office of W ater’s Targeted National Sewage Sludge Survey; the Office of Air Quality Planning and Standards (OAQPS) air regulations; the Office for Chemical Safety and Pollution Prevention/Office of Pollution Prevention and Toxics (OCSPP/OPPT) Chemical Action Plans; t he Office of Environmental Information’s (OEI) 2011 Proposed TRI Expansion Sectors; and the Office of Water’s, Office of Ground Water and Drinking Water’s (OGWDW), and Office of Research and Development’s (ORD) recently developed or revised analytical meth ods.
In addition, EPA initiated a comprehensive review of technical literature to document the performance of new and improved industrial wastewater treatment technologies. EPA plans to capture these performance data in a comprehensive and searchable indus trial wastewater treatment technology (IWTT) database. EPA intends to use the IWTT database in its screeningSection 1

– ELGs General Section 1.8

– EPA Office Coordination

16 process in future annual reviews to quantify the effectiveness of technologies for removing pollutants of concern from specific industrial wastewat er discharges.
EPA also encourages states to share information about new pollutants of concern or changes in wastewater discharge characteristics, or the implementation of new treatment technologies, process changes, or pollution prevention approaches at i ndustrial facilities.Section 1

– ELGs General Section 1.9

– Sharing Information Early in Planning Process

17 Section 1.9

– Sharing Information Early in Planning Process

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 5 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Org anization

Comment Excerpt Text:
EPA mentioned on its September 10, 2013 webinar new sources of information that are being used in the ELG planning process, including a new database. EPA explained that more specific information on these new information s ources would become available through public notice of the 2012 Annual Review Report. However, the 2012 Report will not be available until public notice of the draft 2014 Preliminary ELG Plan. This highlights a core problem with the process in that EPA sha res information too late with states, particularly the valuable information contained in the Annual Review Reports. States recommend that EPA consider releasing the factual information contained in the Annual Review Reports earlier in the planning process.
Response:
EPA does not agree that it has shared information with the states or other stakeholders too late in the effluent guidelines planning process. EPA strives to make information available for public review as soon as it becomes available, and as appropriate. Typically, Annual Review reports are released in the year for which the report was prepared, but that is not always the case. With respect to the 2012 Annual Review R eport, EPA is making available the report along with the Final 2012 Plan an d the Preliminary 2014 Plan, which are being published concurrently. The information contained in the Annual Review reports is useful even after the year for which the report was prepared, as it is part of an industrial wastewater review process that is c ontinuously ongoing, and EPA considers all comments received on the reports, regardless of when they are released. In the future, EPA plans to issue an Annual Review report each year along with publication of either a preliminary or final effluent guideli nes plan.Section 1

– ELGs General Section 1.10

– Engaging with States

18 Section 1.10

– Engaging with States

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 6 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:

Th e Association urges EPA to engage states in early and ongoing dialogue in advance of the preparation of future Plans, as well as in the planning for the Annual Review Reports. A model for progress might be the EPA

- State pilot effort for “ELG Revisions to A ddress Discharges from Unconventional Extraction in the Oil and Gas Industry including Coalbed Methane and Shale Gas.”
Response:

EPA agrees that early and ongoing engagement with states and other stakeholders is valuable to all involved. EPA holds meetings with State pretreatment coordinators and permit writers as a forum to communicate information to States regarding the Annual Reviews and to solicit their feedback on specific industrial categories that may warrant further review. It is also EPA’s goal to publish Effluent Guidelines Program Plans in a timely manner so that information contained therein is shared as soon as possible with the public, including states. At this time, EPA is publishing the Final 2012 P lan together with the Preliminary 2014 P lan to attempt to make up time that was lost in recent planning cycles and resume the annual publication of preliminary and final effluent guidelines plans. EPA has met with the Association of Clean Water Administrators (ACWA) in follow up to some o f the ideas expressed in additional letters submitted addressing the effluent guidelines program, and is always willing to maintain an open dialogue with the States and other stakeholders on effluent guidelines planning and development.Section 1

– ELGs G eneral Section 1.11

– Prioritizing Industrial Category Reviews

19 Section 1.11

– Prioritizing Industrial Category Reviews

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 8 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:

We also urge EPA to strongly consider the length of time since an ELG was last revised, and the number of facilities impacted by the regulation to prioritize reviews.
Response:
EPA agrees with the commenter that factors like the length of time since an eff luent guidelines regulation was revised, as well as the number of facilities impacted or potentially impacted by an effluent guidelines regulation, may be relevant to the effluent guidelines planning process. EPA prioritizes its review of industrial categ ories based on a variety of factors, which includes the length of time since an ELG was last revised, as well as the number of facilities potentially impacted by the regulation.Section 1

– ELGs General Section 1.12

– Approach to Evaluate Non

- Toxic Pollutants

20 Section 1.12

– Approach to Evaluate Non

- Toxic Pollutants

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 13 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:
Increasingly, the pollutants that appear to be of signific ant concern are not “toxic pollutants.” EPA needs to develop an approach and conduct additional research to address these pollutants. One such example is 2

- Mercaptobenzothiazole (MBT), a chemical used in bulk primarily in making tires. One state’s research revealed evidence that the chemical is highly toxic to aquatic life, slow to biodegrade, and because it is released as tires wear, is pervasive in the environment. As it is not on the list codified in 1979 at 40 CFR part 401.15, (amended 1981), it is not a “toxic pollutant;” as it is in a product and not “released” to the environment, it is not captured by the TRI database.
Response:
EPA agrees with the commenter that it is valuable to consider a wider range of potential pollutants in the annual effluent guidelines review process than traditional "toxic pollutants." Beginning in 2012, EPA began to run its DMR and TRI toxicity rankings analysis every other
year

– i.e., only in the odd

- numbered years. During even

- year reviews, EPA is investigating addition al industrial hazard data sources to enable more comprehensive annual reviews of industrial discharges. This approach allows EPA to identify unregulated industrial pollutants that warrant consideration, including pollutants other than toxics, such as MBT. For example, as part of the 2012 Annual Review, EPA reviewed the Office of Pollution Prevention and Toxic Substances (OPPT)’s chemical action plans (CAPs) for commercial chemicals. This review included potential new pollutants that have not been previousl y considered by EPA in the effluent guidelines planning process. The additional hazard data sources can include data and information gathered from other EPA offices, as well as any other sources. This new approach will expand EPA’s ability to identify new pollutants of concern and to identify wastewater discharges in industrial categories not currently regulated by ELGs. An example of this is EPA's ongoing investigation into the industrial wastewater discharge implications of the nanomaterials manufacturi ng industry.
Additionally, EPA continues to seek comments and input from stakeholders on all potential pollutant sources that may be of concern, including such non

- toxic pollutants as nutrients. Based on this public comment, EPA plans to investigate the chemical MBT as a potential industrial wastewater discharge warranting further investigation. Furthermore, in response to this comment, the effluent guidelines program at EPA also intends to bring the MBT issue to the attention of the EPA’s Office of Chem ical Safety and Pollution Prevention.

EPA notes that the effluent guideline program under the Clean Water Act focuses on the discharge of pollutants from industrial wastewater sources, and it is not necessarily the best
program for addressing the release o f MBT to the environment from automobile tires wearing down from use on roads. Other efforts, such as pollution prevention, product substitution, etc.,Section 1

– ELGs General Section 1.12

– Approach to Evaluate Non

- Toxic Pollutants

21 under statutes such as the Toxic Substances Control Act (TSCA), may be a more appropriate program by wh ich to address the MBT issues that the commenter describes. EPA would encourage the commenter to raise these concerns directly to the EPA’s Office of Chemical Safety and Pollution Prevention, as well as other appropriate agencies and offices at both the S tate and Federal levels. Doing so can lead to successful source

- control programs, such as the program developed in California to address the release of copper into the environment from the wear of copper compounded brake pads on automobiles.Section 1

– ELGs General Section 1.1 3

– Use of Industry Surveys

22 Section 1.13

– Use of Industry Surveys

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 7 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:

States recommend that EPA continue or possibly expand its use of industry surveys to gather information. This is a tool that EPA has which most states do not, and is a very effective way of supplementing other data collection tools.
Response:
EPA agrees with the commenter tha t industry surveys may provide valuable information for effluent guidelines planning purposes, but disagrees that use of industry surveys should necessarily be expanded for such purposes. EPA has been using, and plans to continue its use of, industry surv eys as appropriate during the preparation of future effluent guidelines program plans. Under the Paperwork Reduction Act, the Office of Management and Budget (OMB) must approve all surveys that involve more than 9 entities. Virtually all the surveys done in conjunction with developing a rule involve more than 9 entities. It typically takes at least 18 months to obtain approval for conducting these types of broad surveys. As a result, EPA does not typically conduct a broad industry survey for purposes of the effluent guidelines planning process, but may do so if the Agency views that tool as especially warranted in particular cases. Nonetheless, it has been EPA's practice to conduct a broad industry survey in conjunction with developing an actual effluent guidelines regulation in most cases, and EPA expects this practice to continue.Section 1

– ELGs General Section 1.14

– Limitations of Toxic Weighting Factors

23 Section 1.14

– Limitations of Toxic Weighting Factors

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 11 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:
The use of a Toxic Weighting Factor (TWF) appears to be a rational method of including industrial categories for ELG consideration. However, because TWFs have been devel oped for a small fraction of all chemicals that are commercially available, they are not a good method for eliminating industries. Before eliminating industries from ELG consideration or reconsideration, EPA should have some basis to believe that the efflu ent does not contain chemicals that are highly toxic, persistent, bioaccumulative, or carcinogenic.
Response:
EPA agrees with the commenter that the use of toxic

- weighting factors (TWFs) is a good starting point for reviewing discharges of currently disc harging industries for possible effluent guidelines rulemakings, and that use of TWFs does have certain limitations. However, EPA disagrees with the commenter that TWFs have only been developed for a small fraction of chemicals and are thus not helpful in considering which industries may warrant an effluent guidelines rulemaking. EPA has developed TWFs for close to 2000 chemicals. These TWFs currently cover all pollutants monitored and reported by industry in the U.S. to the Discharge Monitoring Report (DMR) system. It is this DMR data, along with TRI data and the TWFs for each reported pollutant, which EPA uses when ranking industries in its Toxicity Ranking Analysis (TRA). Therefore, contrary to what the commenter implies, very few, if any, pollutant s are missed in the ranking analysis as a result of not having enough TWFs to cover every possible chemical that exists. If there are any limitations in the process that may cause EPA to "miss" pollutants during its annual reviews that are being discharge d by industry, it would more likely be due to the lack of monitoring and reporting requirements in NPDES permits for new and unique pollutants.
EPA has recognized this potential limitation in its ability to identify new and unique pollutants that are poten tially being discharged by industry and within the past two years has modified its analytical methodology to explore and look for more hazard data sources that could help address this issue. This methodology combines the traditional toxicity rankings anal ysis (TRA) conducted in odd

- year reviews (which relies on the TWFs and reported data) with the analyses of new hazard data sources and an expanded review of new or improved treatment technologies. This new approach will expand EPA’s ability to identify new pollutants of concern and to identify wastewater discharges in industrial categories not currently regulated by ELGs. An example of this is EPA's ongoing investigation into the industrial wastewater discharge implications of the nanomaterial manufacturin g industry. Through these methods, EPA is giving appropriate consideration to discharges from industries that may include chemicals that are highly toxic, persistent, bioaccumulative, or carcinogenic, as the commenter urges. It may not always be appropri ate to develop new or revised effluent guidelines for industries discharging these types of chemicals. For example, when such dischargers can be better addressed throughSection 1

– ELGs General Section 1.14

– Limitations of Toxic Weighting Factors

24 permitting, or when there are no technologies that appear available to a particular i ndustry, EPA may decide not to initiate an effluent guidelines rulemaking for the industry.Section 1

– ELGs General Section 1.15

– Pulp and Paper Industry Review

25 Section 1.15

– Pulp and Paper Industry Review

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0219

- A2

– 1 Organization: American Forest & Paper Association (AF&PA) Commenter Name: Je rry Schwartz Commenter Type: Trade Association

Comment Excerpt Text:
AF&PA appreciates the cooperative relationship we have had with EPA as the agency has develop this and previous Program Plans. We believe that the outreach from agency staff, the opportunity to correct inaccurate information, and the ensuing dialogue, all have resulted in much more accurate and representative industry data being used by EPA in the current and previous Program Plans. These data help support EPA’s conclusion that, ba sed on toxicity to human health and the environment, discharges from Pulp and Paper mills present a low risk and therefore; should be a “lower priority for revision.” We support that conclusion as well.
Response:
EPA agrees with the commenter that furth er investigation of discharges from the Pulp and Paper category is not appropriate at this time. As described in the Final 2012 Plan, EPA based this decision on the Toxicity Ranking Analysis it routinely conducts for every industry category regulated by effluent guidelines and on a follow

- up investigation. This did not include a risk analysis of the potential impacts on human health and the environment from the Pulp and Paper industry, as the commenter implies, and EPA has not concluded that this industr y necessarily represents a "low risk". Rather, EPA's decision was based on a comparative discharge toxicity analysis relative to other industries, using the best available data at the time.Secti on 2

– Metal Finishing Section 2.1

– Review of Metal Finishing Category

26 Section 2

– Metal Finishing

Section 2.1

– Review of Metal Finishing Category

Comme nt Number: EPA

- HQ

- OW

- 2010

- 0824

- 0218

- A2

– 9 Organization: Association of Clean Water Administrators (ACWA) Commenter Name: Susan Kirsch Commenter Type: State Representing Organization

Comment Excerpt Text:
As the Association previously raised in comments on the 2010 Preliminary ELG Plan, we encourage the EPA to reexamine the ELGs for the metal finishing industry in light of the following:
a. New chemical formulations have been developed or are more widely used since the last review. b. The potential for n ew pollutants of concern from additives has been discovered. c. The metal finishing/electroplating categories represent a large number of categorical industrial users in the United States. It is important that emphasis be placed on this group, and that

con temporary information be obtained to properly regulate metal finishers. d. Nanoparticles are being used in some of the new formulations. The impact of pollutants in this form, as well as treatment, warrants further study. e. New treatment technologies, not previously considered, have been developed to more effectively remove metals. f. There is a desire to merge the metal finishing and electroplating regulations due to issues in determining applicability, and to move away from a four day average limitation in 40 CFR 413. If an electroplater subject to 40 CFR 413 upgrades its plant a little at a time it is difficult to determine at what point the facility becomes a new source and becomes subject to 40 CFR 433. The four day average is problematic because it is based upon four consecutive sampling days. The samples can be months apart or on consecutive days. There is no fixed period as in other ELG limits. Response:
EPA agrees with the commenter that review of the metal finishing industry for a possible efflue nt guidelines rulemaking is appropriate, and EPA has indicated in the Preliminary 2014 Plan that it plans to continue reviewing the Metal Finishing point source category (40 CFR Part 433) as part of its 2014 Annual Review. EPA will consider the informatio n provided by the commenter in the process of reviewing the metal finishing category. EPA’s review of the Targeted National Sewage Sludge Survey (TNSSS) data indicates that these facilities may be potentially discharging high concentrations of metals, par ticularly chromium, nickel, and zinc, to publically owned treatment works (POTWs). These metals could transfer to sewage sludge and impact its beneficial use.Section 3

– Coastal Oil and Gas (O&G) Section 3.1

– Current O&G ELGs

27 Section 3

– Coastal Oil and Gas (O&G)

Section 3.1

– Current O&G ELGs

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0211

- A2

– 3 Organization: Cook Inletkeeper Commenter Name: Suzanne Bostrom and Sarah Mackie Commenter Type: Environmental Organization

Comment Excerpt Text:
II. The Coastal ELG Exemption for Cook Inlet
Within the Coastal Subcategory (Subpart D) of the Oil and Gas Extraction Point Source Category guidelines, there is currently an exemption from the zero discharge requirement for Cook Inlet, Alaska. 11 Specifically, all facilities regulated by the coastal subcategory ELGs except for facilities in Cook Inlet are pr ohibited from discharging drill cuttings, produced water, and other drilling wastes. 12 This is the only such exemption in the country for oil and gas facilities in coastal waters. At all other sites, the discharge of drill cuttings, produced water and all other drilling waste is prohibited. 13 The exemption for Cook Inlet was included when the current guidelines were first promulgated in 1996. 14

In 1996, the EPA set out its reasons for implementing different standards in Cook Inlet to those in the rest of th e country. 15 The main reasons concerned the physical and economic infeasibility of applying the same zero discharge requirement in Cook Inlet as EPA applied to other coastal facilities around the country. The reasons included: 16

1) Certain sites in Cook In let may not have been able to inject sufficient volumes of drilling waste to enable compliance with a zero discharge requirement. The geology necessary for grinding and injection did not appear to occur throughout Cook Inlet. 17

2) Only one privately owned waste disposal site was available for onshore disposal and this may not always have been available for use by other contractors. The next most suitable disposal sites for drilling waste were in Oregon. 18

3) There were various logistical problems faced by o perators in Cook Inlet including available space, tidal fluctuations, strong currents and ice formation. Storage and transportation of drilling waste during the winter months imposed a significant financial burden. 19

4) The cost of implementing a zero discharge requirement was projected to have been sufficiently high that one of the thirteen platforms would have closed with the resulting loss of 108 jobs in an area of above average unemployment. The Agency considered this to be disproportionately high i n comparison to the costs faced by operators in the rest of the country. 20

In 2004, the Agency reviewed the exemption for Cook Inlet to ascertain whether or not there were grounds for the exemption to remain in place. 21 The review highlighted that, althoug h the geology of the region had not changed, technical advances had enabled the installation of grind

and

- inject facilities by operators in the surrounding region. 22 No new coastal oil and gas disposal facilities had opened in the area, but one new platfor m had been established. This new platformSection 3

– Coastal Oil and Gas (O&G) Section 3.1

– Current O&G ELGs

28 had both the technical and economic capability to adhere to a zero discharge requirement. 23 However, the Agency decided not to revise the ELGs citing the following reasons:
1) The 16

- year lag between new projects being established;
2) The ability of the permit scheme to require new facilities to demonstrate that they were technically or economically unable to conform to a zero discharge requirement; and
3) The relatively low toxicity of the discharges.24

The 2004 review stated that the Agency would “examine the progress of newer zero discharge technologies for drill cuttings and produced waters in future annual reviews.”25
On August 14, 2007, the Regional Administrator for EPA Region 10 (which covers Alaska)
reque sted that the ELGs for Cook Inlet be reviewed: “Region 10 strongly believes that the factors identified in the 1996 ELG development and reconsidered in the 2004 Technical Support Document (TSD) have changed significantly, and reevaluation is warranted.”26 (Emphasis added). Although the ELGs for the oil and gas industry underwent an initial review in 2010, the ELGs for the coastal subsector have yet to be reviewed, 27 despite the assurances made in 2004 and the request made by Region 10 in 2007. There have be en sufficient technological and economic changes in Cook Inlet since 1996 to warrant a full review of the guidelines and in particular the zero discharge exemption.

11 U.S. ENVTL. PROT. AGENCY, TECHNICAL SUPPORT DOCUMENT FOR THE 2004 EFFLUENT GUIDELINES P ROGRAM PLAN 5

- 226 ( 2004) [hereinafter 2004 ELG SUPPORT DOCUMENT].

12 FINAL EFFLUENT LIMITATIONS GUIDELINES AND STANDARDS FOR THE COASTAL SUBCATEGORY OF THE OIL AND GAS EXTRACTION POINT SOURCE CATEGORY, 61 Fed. Reg. 66086, 66127, (Dec. 16, 1996).

13 2004 ELG SUPPORT DOCUMENT, at 5

- 226.

14 61 Fed Reg. 66086, 66125, (Dec 16, 1996).

15 Id. at 66086.

16 As noted infra, the rationales to exempt Cook Inlet from the zero discharge standard are no longer valid. See LOIS EPSTEIN, DISHONORABLE DISCHARGES: HOW TO SHIFT COOK INLET’S OFFSHORE OIL & GAS OPERATIONS TO ZERO DISCHARGE (May 2006)(available at: http://inletkeeper.org/resources/contents/dishonorable

- discharges/view).

17 Id. at 66094.

18 Id. at 66090.

19 Id. at 66096.

20 Id. at 66101.

21 2004 ELG SUPPOR T DOCUMENT, supra, at 5

- 225.Section 3

– Coastal Oil and Gas (O&G) Section 3.1

– Cur rent O&G ELGs

29 22 2004 ELG SUPPORT DOCUMENT, supra, at 5

- 228.

23 Id. at 5

- 228.

24 Id. at 5

- 230.

25 Id. at 5

- 231.

26 Letter from Elin D Miller, Region 10 Regional Administrator, U.S. Envtl. Prot. Agency, to Benjamin H Grumbles, Assistant Admin. for Water, U.S. Envtl. Prot. Agency, at 2 (Aug 14, 2007).

27 U.S. ENVTL. PROT. AGENCY, TECHNICAL SUPPORT DOCUMENT FOR THE 2010 EFFLUENT GUIDELINES PROGRAM PLAN (2011).
Response:
EPA appreciates the information provided by the commenter. EPA plan s to further study the exemption for Cook Inlet in the Coastal Subcategory of Part 435 in light of this and other information received. EPA plans to provide an update on the status of its investigation into the Cook Inlet Oil & Gas effluent guidelines requ irements in the 2014 Final Plan.

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0221

- A3

– 3 Organization: Native Village of Eklutna (NVE) Commenter Name: Marc Lamoreaux Commenter Type: Tribal Government

Comment Excerpt Text:
II. The Coastal ELG Exemption for Cook Inlet
Within the Coastal Subcategory (Subpart D) of the Oil and Gas Extraction Point Source Category guidelines, there is currently an exemption from the zero discharge requirement for Cook Inlet, Alaska. 11 Specifically, all facilities regulated by the c oastal subcategory ELGs except for facilities in Cook Inlet are prohibited from discharging drill cuttings, produced water, and other drilling wastes. 12 This is the only such exemption in the country for oil and gas facilities in coastal waters. At all oth er sites, the discharge of drill cuttings, produced water and all other drilling waste is prohibited. 13 The exemption for Cook Inlet was included when the current guidelines were first promulgated in 1996. 14

In 1996, the EPA set out its reasons for impleme nting different standards in Cook Inlet than the rest of the country. 15

The main reasons concerned the physical and economic infeasibility of applying the same zero discharge requirement in Cook Inlet as EPA applied to other coastal facilities around the c ountry. The reasons were the following:Section 3

– Coastal Oil and Gas (O&G) Section 3.1

– Current O&G ELGs

30 1) Certain sites in Cook Inlet may not have been able to inject sufficient volumes of drilling waste to enable compliance with a zero discharge requirement. The geology necessary for grinding and injection did not a ppear to occur throughout Cook Inlet. 16

2) Only one privately owned waste disposal site was available for onshore disposal and this may not always have been available for use by other contractors. The next most suitable disposal sites for drilling waste were in Oregon. 17

3) There were various logistical problems faced by operators in Cook Inlet including available space, tidal fluctuations, strong currents and ice formation. Storage and transportation of drilling waste during the winter months imposed a significant financial burden. 18

4) The cost of implementing a zero discharge requirement was projected to have been sufficiently high that one of the thirteen platforms would have closed with the resulting loss of 108 jobs in an area of above average unemp loyment. The Agency considered this to be disproportionately high in comparison to the costs faced by operators in the rest of the country. 19

In 2004, the Agency reviewed the exemption for Cook Inlet to ascertain whether or not there were grounds for the e xemption to remain in place. 20 The review highlighted that, although the geology of the region had not changed, technical advances had enabled the installation of grind

and

- inject facilities by operators in the surrounding region. 21 No new coastal oil and gas disposal plants had opened in the area, but one new platform had been established. This new platform had both the technical and economic capability to adhere to a zero discharge requirement. 22 However, production from the remaining facilities in Cook I nlet had significantly reduced, leaving the operators in a financial position that was no less precarious than in 1996. 23

The Agency decided not to revise the ELGs citing the following reasons:
1) The 16

- year lag between new projects being established;

2 ) The ability of the permit scheme to require new facilities to demonstrate that they were technically or economically unable to conform to a zero discharge requirement; and
3) The relatively low toxicity of the discharges. 24

The 2004 review stated that the Agency would “examine the progress of newer zero discharge technologies for drill cuttings and produced waters in future annual reviews.” 25

On August 14, 2007, the Regional Administrator for EPA Region 10 (which covers Alaska) requested that the ELGs f or Cook Inlet be reviewed: “Region 10 strongly believes that the factors identified in the 1996 ELG development and reconsidered in the 2004 Technical Support Document (TSD) have changed significantly, and reevaluation is warranted.” 26 Although the ELGs for the oil and gas industry underwent an initial review in 2010, which decided that the levels of toxicity released were not high enough to prioritize the industry for a full review, 27 the ELGs for the coastal subsector have yet to be reviewed. This is de spite the assurances made in 2004 and the request made by Region 10 in 2007. We submit that there have been sufficient technological and economic changes in Cook Inlet since 2004 to warrant a full review of the guidelines and in particular the zero dischar ge exemption.Section 3

– Coastal Oil and Gas (O&G) Section 3.1

– Current O&G ELGs

31 11 U.S. ENVTL. PROT. AGENCY, TECHNICAL SUPPORT DOCUMENT FOR THE 2004 EFFLUENT GUIDELINES PROGRAM PLAN 5

- 226(2004) [hereinafter 2004 ELG SUPPORT DOCUMENT].

12 FINAL EFFLUENT LIMITATIONS GUIDELINES AND STANDARDS FOR THE COASTAL SUBCATEGORY OF THE OIL AND GAS EXTRACTION POINT SOURCE CATEGORY, 61 Fed. Reg. 66086, 66127, (Dec. 16, 1996).

13 2004 ELG SUPPORT DOCUMENT, at 5

- 226.

14 61 Fed Reg. 66086, 66125, (Dec 16, 1996).

15 Id. at 66086.

16 Id. at 66094.

17 Id. at 66090.

18 Id. at 66096.

19 Id. at 66101.

20 2004 ELG SUPPORT DOCUMENT, supra, at 5

- 225.

21 2004 ELG SUPPORT DOCUMENT, supra, at 5

- 228.

22 Id. at 5

- 228.

23 Id. at 5

- 229.

24 Id. at 5

- 230.

25 Id. at 5

- 231.

26 Letter from Elin D Miller, Region 10 Regional Administrator, U.S. Envtl. Prot. Agency, to Benjamin H Grumbles, Assistant Admin. for Water, U.S. Envtl. Prot. Agency, at 2 (Aug 14, 2007).

27 U.S. ENVTL. PROT. AGENCY, TECHNICAL SUPPORT DOCUMENT FOR THE 2010 EFFLUENT GUIDELINES PROGRAM PLAN (2011).
Response:

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– Coastal Oil and Gas (O&G) Section 3.2

– Remove Cook Inlet Exemption

32 Section 3.2

– Remove Cook Inlet Exemption

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Comment Excerpt Text:
We are writing to urge EPA in the strongest possible terms to end the special exemption that singles out Cook Inlet and allows the oil and gas industry to pollute our fisheries with billions of gallons of waste each year.
Response:
EPA appreciates the information provided by the commenter. EPA plans to further study the exemption for Cook Inlet in the Coastal Subcategory of Part 435 in light of this and other information received. EPA plans to provide an update on the status of it s investigation into the Cook Inlet Oil & Gas effluent guidelines requirements in the 2014 Final Plan.

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Comment Excerpt Text:

V. Conclusion
EPA stands on strong legal, economic and technological grounds to revise its Effluent Guideline Plan to close the Cook Inlet oil and gas industry exemption. Specific factors that support this posi tion include:

 the high price of Cook Inlet oil compared to 1996 prices;

 significant state tax credits and royalty reductions since 1996;

 the lack of adequate technical evaluation by EPA to date of lower

- cost, zero discharge scenarios; and

 the number and ownership of usable Class II wells offshore and the fact several Cook Inlet platforms already inject their produced water.

The levels of pollution discharged into Cook Inlet as a result of the exemption under the ELGs have a significant effect on human health, food sources, the environment and local industry. It is now clear the necessary technology is available to enable a zero discharge requirement to be implemented in Cook Inlet. Furthermore, the economic assumptions used in 1996 have comple tely shifted, with high oil prices and large state subsidies creating higher margins for Cook Inlet crude. The data and analyses found in the Epstein report remain highly relevant to theSection 3

– Coastal Oil and Ga s (O&G) Section 3.2

– Remove Cook Inlet Exemption

33 issues herein, and Commenters have attached a copy of the report and request it become part of the record in this matter.
For these reasons, Commenters respectfully request that EPA add the ELGs for oil and gas facilities in the Coastal Subcategory

— and specifically the exemption for Cook Inlet

— to the Preliminary 2012 E ffluent Guidelines Program Plan and remove the exemption of Cook Inlet from the nationwide zero discharge requirement.
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Comment Excerpt Text:
We urge EPA to end the special exemption that singles out Cook Inlet and allows the oil and gas industry to pollute our fisheries with billions of gallons of waste each year.
Response:
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Comment Excerpt Text:

V. Conclusion
EPA stands on strong legal, economic and technological grounds to revise its Effluent Guideline Plan to close the Cook Inlet oil and gas industry exemption. Specific factors that support this position include:

 the high price of Cook Inlet oil compared to 1996 prices

 significant state tax credits and royalty reductions since 1996;

 the lack of adequate technical evaluation by EPA to date of lower

- cost, zero discharge scenarios; and

 the number and ownership of usable Class II wells offshore and the fact that several Cook Inlet platforms already inject their produced water.Section 3

– Coastal Oil and Gas (O&G) Section 3.2

– Remove Cook Inlet Exemption

34 The levels of pollution discharged into Cook Inlet as a result of the exemption under the ELGs have a significant effect o n human health, food sources, the environment and local industry. It is now clear the necessary technology is available to enable a zero discharge requirement to be implemented in Cook Inlet. Furthermore, the economic assumptions used in 1996 have complete ly shifted, with high oil prices and large state subsidies creating higher margins for Cook Inlet crude. The data and analyses found in the Epstein report remain highly relevant to the issues herein.
For these reasons, NVE requests that EPA add the ELGs f or oil and gas facilities in the Coastal Subcategory

– and specifically the exemption for Cook Inlet

– to the Preliminary 2012 Effluent Guidelines Program Plan and remove the exemption of Cook Inlet from nationwide zero discharge requirement.
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– Coastal Oil and Gas (O&G) Section 3.3

– CWA Goals Not Attained in Cook Inlet

35 Section 3.3

– CWA Goals Not Attained in Cook Inlet

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Comment Excerpt Text:
The overarching objective of the Clean Water Act (CWA) “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”3 To achieve this objective, Congress established several goals, including (1) eliminating the discharge of pollutants into navigable waters by 1985; (2) attaining water quality that provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water by July 1, 1983; and (3) prohibiting the discharge of toxic pollutants in toxic amounts.4 Although water quality has improved in many respects since the passage of the CWA, these three goals have not been attained with regards to the oil and gas facilities in Cook Inlet. For example, the general National Pollutant Discharge Elimination System (“NPDES”) permits now in place in Cook Inlet increased the discharge of pollutants from oil and gas production and exploration facilities compared to pre vious permits. This is particularly troubling given the renewed interest in oil and gas exploration in Cook Inlet.
Commenters have serious concerns about continuing the exemption for Cook Inlet facilities in the Effluent Limitation Guidelines for oil and gas facilities located in coastal waters (“Coastal ELGs”). Since 1996, the Coastal ELGs have allowed oil and gas facilities in Cook Inlet to dump billions of gallons of waste into waters which sustain delicate habitats and wildlife and are vital for subsis tence, recreational and commercial fishing. Because of the importance of these waters to Alaskans and because the assumptions underlying EPA’s exemption for Cook Inlet are no longer valid, Commenters asks EPA to revisit the exemption for Cook Inlet in the Coastal ELGs and require Cook Inlet facilities to meet the same standards as other coastal facilities around the country.
Response:
EPA appreciates the information provided by the commenter. EPA plans to further study the exemption for Cook Inlet in the Coastal Subcategory of Part 435 in light of this and other information received. EPA plans to provide an update on the status of its investigation into the Cook Inlet Oil & Gas effluent guidelines requirements in the 2014 Final Plan.Section 3

– Coastal Oil and Gas (O&G) Sectio n 3.3

– CWA Goals Not Attained in Cook Inlet

36 Comment Number: EP A

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Comment Excerpt Text:
The overarching objective of the Clean Water Act (CWA) “is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 3 To achieve this objective, Congress established several goals, including (1) eliminating the discharge of pollutants into navigable waters by 1985; (2) attaining water quality that prov ides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water by July 1, 1983; and (3) prohibiting he discharge of toxic pollutants in toxic amounts. 4 Although water quality has improved in many re spects since the passage of the CWA, these three goals have not been attained with regards to the oil and gas facilities in Cook Inlet. For example, the general National Pollutant Discharge Elimination System (NPDES) permits now in place in Cook Inlet incr eased the discharge of pollutants from Oil and gas production and exploration facilities compared to precious permits. This is particularly troubling given the renewed interest in oil and gas exploration in Cook Inlet.

NVE has serious concerns about the c ontinuing exemption for Cook Inlet facilities in the Effluent Limitation Guidelines for oil and gas facilities located in coastal waters (“Coastal ELGs”). Since 1996, the Coastal ELGs have continued to allow oil and gas facilities in Cook Inlet to dump mil lions of gallons of waste into waters vital for subsistence, recreation, commercial fishing industries, habitat, and wildlife. Because of the importance of these waters to Alaskans and because the assumptions underlying EPA’s exemption for Cook Inlet no lo nger ring true, NVE asks that EPA revisit the exemptions for Cook Inlet in the Coastal ELGs and require that Cook Inlet facilities meet the same standards as other coastal facilities around the country.

3 33 U.S.C. § 1251(a).

4 Id.
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– Coastal Oil and Gas (O&G) Section 3.4

– Cook Inlet Environmental Impacts

37 Section 3.4

– Cook Inlet Environmental Impacts

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Comment Excerpt Text:
III. Amount and Type of Pollution & Related Impacts
Cook Inlet is a vibrant but stressed marine habitat facing many threats. Alaska is experiencing the effects of rapid climate change unlike anywhere else in the Unit ed States. The marine resources in Cook Inlet face growing risks from these effects which include ocean acidification, receding glaciers, warming salmon streams and increased coastal erosion. Additionally, as Alaska’s most populated and fastest growing reg ion, Cook Inlet suffers from a host of point and nonpoint pollution sources which collectively dump untreated or partially treated wastes into rich fisheries habitats around the watershed each year. At the same time, the fisheries in Cook Inlet play an inv aluable role creating sustainable jobs, food sources and revenue for the local communities. It is estimated that the annual value of Cook Inlet fisheries exceeds $1 billion. 28 While some of the pollution sources in Cook Inlet are difficult to regulate with current technology, others

– including oil and gas industry wastes

– are not. As a result, there are compelling reasons for EPA to review the ELGs in relation to Cook Inlet.
A. Amount of Pollution

As noted above, the Cook Inlet watershed

— like any larg e watershed

— suffers from large volumes of nonpoint source pollutants and these pollutants create stress in the receiving waters and habitats which is aggravated by the discharge of point source pollution. Despite this, major point source discharges in Co ok Inlet are poorly regulated. For example, the Municipality of Anchorage’s main sewage treatment plant dumps upwards of 30 million gallons a day of primary treated sewage under a Clean Water Act waiver. The oil and gas industry sector dumps well over 2 bi llion gallons a year in produced water into Cook Inlet fisheries, and, depending on drilling rates, millions of additional gallons in drilling muds, cuttings and other wastes. 29 As reservoirs decline, produced water discharges can be expected to increase. Furthermore, due to a renewed interest in oil and gas exploration in Cook Inlet brought about by significant state subsidies, two new jack

- up rigs are now working the region, drilling new wells and disposing additional wastes not anticipated in 1996.

B. Impacts to Cook Inlet Resources

i. Subsistence Use
Numerous Alaska Native communities rely heavily on the Cook Inlet for their subsistence use and livelihood. Communities including Port Graham, Nanwalek, Chickalook, Eklutna, Seldovia, Ninilchik and Tyon ek, all members of the Kenaitze Tribe, pursue a subsistence lifestyle that is centuries old, with subsistence

- based foods, including those from Cook Inlet, supplying a high percentage of their diets. Because a higher percentage of their food supply comes f rom Cook Inlet

- related sources than for most non

- native individuals, many of those living in theseSection 3

– Coastal Oil and Gas (O&G) Section 3.4

– Cook Inlet Environmental Impacts

38 communities may be disproportionately impacted by toxic chemicals in their foods. Concerns about the level of toxins found in fish have even led to reports o f parents ceasing to feed their children traditional foods. 30

Pollution can also have an impact on the availability of food for communities. Tribal members have reported a decline in the populations of various species harvested for food. These changes incl ude “salmon with thinner and less firm meat and smaller halibut with chalky and fibrous meat.” 31 Tribal members have also observed “a disappearance in bull kelp and a decrease in the abundance of clams, cockles, bidarkis, cod, flounder, crab, shrimp, musse ls, algae, seals and sea lions. Clams and mussels were observed to have thinner and sometimes transparent shells.” 32

A 2003 EPA study 33 shows that seafood samples collected from Cook Inlet in 1997 contain varying levels of polycyclic aromatic hydrocarbons (chemicals from petroleum production) and metals (including mercury, cadmium, and lead, which are contained in oil industry discharges). Importantly, the EPA study focused solely on the effects of individual pollutants, not the impacts of two or more pollu tants simultaneously contained in fish tissues consumed by humans.
Since oil and gas production began in Cook Inlet, the industry has dumped more than 55 billion gallons of toxic produced waters into the region’s fisheries. 34 We know from the Exxon Valdez oil spill that polycyclic aromatic hydrocarbons and other pollutants in oil industry waste streams are more toxic than previously thought; 35 as a result, it makes sense to protect the wild food sources in Cook Inlet by closing the toxic dumping loophole.
ii. Beluga Whales
Since the adoption of the ELGs in 1996, the Cook Inlet beluga whale population has been listed as “depleted” under the federal Marine Mammal Protection Act (MMPA) 36 and “endangered” under the federal Endangered Species Act (ESA). 37 Sign ificantly, all Cook Inlet oil and gas activities covered by the current ELGs lie within waters defined by NMFS as “critical habitat” for the beluga whale. 38 Despite the cessation of subsistence harvests in 1999, the population of beluga whales continues to decline. NMFS and others cannot pinpoint the causes of the decline, but virtually no resources have been dedicated toward understanding whether oil and gas industry discharges may be having an adverse effect on the beluga.

iii. Tourism
The importance of tourism to the area cannot be underestimated. According to the state Chamber of Commerce, approximately 1.8 million visitors traveled to Alaska in 2010 and spent a total of $3.4 billion. 39 One in eight private sector jobs in Alaska is tourism related. Dir ect expenditure on sport fishing in Cook Inlet amounted to $730 million in 2007, employing about 8000 people in the area. 40 Clean water in Cook Inlet is vital to the lucrative tourist and sport fishing industries.

28 See, e.g., GUNNAR KNAPP, INSTITUTE OF SOCIAL AND ECONOMIC RESEARCH, UNIVERSITY OF ALASKA ANCHORAGE, COMPARISON OF RECENT SPORT AND COMMERCIAL FISHERIES ECONOMIC STUDIES (2009)(available at: http://www.iser.uaa.alaska.edu/people/knapp/personal/pubs/Knapp_Sport_Commercial_Economi c_Comparison_for

_Task_Force_090129_revised.pdf).

29 See EPSTEIN, supra, p. 11.Section 3

– Coastal Oil and Gas (O&G) Section 3 .4

– Cook Inlet Environmental Impacts

39 30 REGION 10, U.S. ENVTL. PROT. AGENCY, FACT SHEET: OIL AND GAS EXPLORATION, DEVELOPMENT AND PRODUCTION FACILITIES LOCATED IN STATE AND FEDERAL WATERS IN COOK INLET, PERMIT NUMBER AKG

- 31

- 5000 , at 47

– 49 (Feb. 23, 2006).

31 Id.

32 Id.

33 Survey of Chemical Contaminants in Seafoods Collected in the Vicinity of Tyonek, Seldovia, Port Graham and Nanwalek in Cook Inlet, Alaska, U.S. Environmental Protection Agency, Region 10, EPA 910

- R

- 01

- 003, December 2003.

34 EPSTEIN, p. 9 (2006) (using a highly conservative figure of less than 1 billion gallons a year to arrive at a current estimate of total produced water since the beginning of operations).

35 EPSTEIN, P. 24 (2006).

36 65 Fed. Reg. 34590 (May 31, 2000).

37 73 Fed. Reg. 62919 (Oct. 22, 2008).

38 See 76 Fed. Reg. 20213 (Apr. 11, 2011).

39 DEP’T OF COMM., COMMUNITY & ECON. DEV., STATE OF ALASKA, 2010 ALASKA ECONOMIC PERFORMANCE REPORT at 23 (2012).

40 HELVOIGT ET AL., supra, at 14.
Respo nse: Please see the response to EPA

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40 Comment Number: EPA

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Comment Excerpt Text:

III. Amount and Type of Pollution & Related Impacts
Cook Inlet is a delicate marine habitat facing many threats. Pollution discharged into the water has a significant impact on vulnerable communities which rely on the waters of Cook Inlet and on the various sp ecies found in those waters. The area is also heavily reliant on the economic opportunities afforded by the fishing industry and by tourism. The conclusion reached in 2010 that the levels of toxicity released by the oil and gas industry across the country were not sufficiently high to warrant a review of the ELGs did not take into account the disproportionate effect of pollution in Cook Inlet
A. Amount of Pollution

As noted above, the Cook Inlet watershed

– like any large watershed

– suffers from large vol umes of nonpoint source pollutants and these pollutants create stress in the receiving waters and habitats which is aggravated by the discharge of point source pollution. Despite this, major point source discharges in Cook Inlet are poorly regulated. For e xample, the Municipality of Anchorage’s main sewage treatment plant dumps upwards of 30 million gallons a day of primary treated sewage under a Clean Water Act waiver. The oil and gas industry sector dumps well over 2 billion gallons a year in produced wat er into Cook Inlet fisheries, and depending on drilling rates, millions of additional gallons in drilling muds, cuttings, and other wastes. As reservoirs decline, produced water discharges can be expected to increase. Furthermore, due to a renewed interest in oil and gas exploration in Cook Inlet brought about by significant state subsidies, two new jack

- up rigs are now working in the region, drilling new wells and disposing additional wastes not anticipated in 1996.
B. Impacts to Cook Inlet

i. Subsistenc e Use
Several Alaska Native communities rely heavily on the Cook Inlet for their subsistence use and livelihood. Tribal communities including Chickaloon, Eklutna, Kenaitze, Knik, Ninilchik, Port Graham, Nanwalek, Seldovia and Tyonek pursue a subsistence l ifestyle that is centuries old, with subsistence

- based foods, including those from Cook Inlet, supplying a high percentage of their diets. Because a higher percentage of their food supply comes from Cook Inlet

- related sources than for most non

- native indiv iduals, many of those living in these communities may be disproportionately impacted by toxic chemicals in their foods. Concerns about the level of toxins found in fish have even led to reports of parents ceasing to feed their children traditional foods. 28

Pollution can also have an impact on the availability of food for communities. Tribal members have reported a decline in the populations of various species harvested for food. These changes include “salmon with thinner and less firm meat and smaller halibut with chalky and fibrous meat.” 29 Tribal members have also observed “a disappearance in bull kelp and a decrease in theSection 3

– Coastal Oil and Gas (O&G) Section 3.4

– Cook Inlet Environmental Impacts

41 abundance of clams, cockles, bidarkis, cod, flounder, crab, shrimp, mussels, algae, seals and sea lions. Clams and mussels were o bserved to have thinner and sometimes transparent shells.” 30

ii. Pink Salmon and Herring
National Marine Fisheries Service (NMFS) scientists who have done research following the 1989 Exxon Valdez crude oil spill found that crude oil constituents are signif icantly more toxic to pink salmon and herring than previously recognized. Instead of toxicities in the parts per million (ppm) range, NMFS researchers observed toxicities in the parts per billion (ppb) range for salmon and herring eggs. Hatchlings were def ormed at levels of contaminants 1,000 times less than previously measured. 31

iii. Beluga Whales
NMFS classified Cook Inlet’s beluga whales as a “depleted” stock of marine mammals under the Marine Mammal Protection Act since the adoption of the ELGs in 1996. In 2008 the Cook Inlet beluga whale population was classified as endangered under the ESA. 32 In 2011 NMFS designated 3,013 square miles of Cook Inlet as critical habitat under the Endangered Species Act for the beluga whale. 33 Significantly, all Cook Inlet oil and gas activities covered by the current ELGs lie within waters defined by NMFS as beluga whale critical habitat. Despite the cessation of subsistence harvests in 1999, the population of beluga whales continues to decline. NMFS and others canno t pinpoint the causes of the decline, but virtually no resources have been dedicated toward understanding whether oil and gas industry discharges may be having an adverse effect on the beluga.
iv. Commercial & Recreational Fishing

Cook Inlet is an intern ationally famous fishery. Red, king and silver salmon are prized, as are herring and shellfish. Commercial salmon fishing in Cook Inlet was valued at $61 million in 2007 with fishing for food or leisure by both locals and tourists also being economically important to the area. 34 The “Kenai Wild” brand of salmon from Cook Inlet has, in recent years, gained market

- share outside of Alaska as a high

- quality, valuable, wild Alaskan salmon product. All of these sectors of the fishing industry rely on the cleanli ness of the waters

— as well as the perception of cleanliness

— in Cook Inlet for their continued survival.

v. Tourism
The importance of tourism to the area cannot be underestimated. According to the state Chamber of Commerce, approximately 1.8 million v isitors traveled to Alaska in 2010 and spent a total of $3.4 billion. 35 One in eight private sector jobs in Alaska is tourism related. Direct expenditure on sport fishing in Cook Inlet amounted to $730 million in 2007, employing about 8000 people in the ar ea. 36 Clean water in Cook Inlet is vital to the lucrative tourist and sport fishing industries.

28 REGION 10, U.S. ENVTL. PROT. AGENCY, FACT SHEET: OIL AND GAS EXPLORATION, DEVELOPMENT AND PRODUCTION FACILITIES LOCATED IN STATE AND FEDERAL WATERS IN COOK INLET, PERMIT NUMBER AKG

- 31

- 5000, at 47

– 49 (Feb. 23, 2006).

29 Id.Section 3

– Coastal Oil and Gas (O&G) Section 3.4

– Coo k Inlet Environmental Impacts

42 30 Id.

31 LOIS EPSTEIN, DISHONORABLE DISCHARGES: HOW TO SHIFT COOK INLET’S OFFSHORE OIL & GAS OPERATIONS TO ZERO DISCHARGE 24 (2006).

32 Nat’l Marine Fisheries Serv., Beluga Whale, http ://www.nmfs.noaa.gov/pr/species/mammals/cetaceans/belugawhale.htm (last visited Oct. 1, 2013).

33 Endangered and Threatened Species: Designation of Critical Habitat for Cook Inlet Beluga Whale, 76 Fed. Reg. 20180 (Apr. 11, 2011).

34 TED L. HELVOIGT ET AL ., ECONOMIC ANALYSIS OF THE CHUITNA WATERSHED AND COOK INLET at 5

- 6a (2010).

35 DEP’T OF COMM., COMMUNITY & ECON. DEV., STATE OF ALASKA, 2010 ALASKA ECONOMIC PERFORMANCE REPORT at 23 (2012).

36 HELVOIGT ET AL., supra, at 14.
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.Section 3

– Coastal Oil and Gas (O&G) Section 3.5

– Availability of Zero Discharge Technology

43 Section 3.5

– Availability of Zero Discharge Technology

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IV. Available Technology
In 1996, EPA found it was not technically feasible to inject drilling waste in Cook Inlet because, according to industry studies, the geological makeup of the area did not lend itself to reinjection/disposal wells. This is no longer the case and the technology to enable the injection of drilling waste is now available.
The exemption for Cook Inlet is based on outdated information about the ability of facilities to achieve zero discharge o f wastes such as drilling fluids and drill cuttings. Improvements in “grind and inject” technologies for drilling wastes now can overcome the Cook Inlet injection well plugging problems that were a large part of the previous rationale for allowing drilling waste disposal directly into Cook Inlet. Marathon and Chevron/Unocal opened new grind

- and

inject facilities for drilling wastes in the Cook Inlet region in 1999 and 2002, respectively, demonstrating the technological feasibility of injecting drilling wast e in Cook Inlet. 41

41 2004 ELG SUPPORT DOCUMENT, supra, at5

- 228
Response:
EPA appreciates the information provided by the commenter. EPA plans to further study the exemption for Cook Inlet in the Coastal Subcategory of Part 435 in light of this and other information received. EPA plans to provide an update on the status of its investigation into the Cook Inlet Oil & Gas effluent guidelines requirements in the 2014 Final Plan.

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Comment Excerpt Text:
The cost analysis of the implementation of a zero discharge requirement was carried out in 1996 with data supplied by the oil and gas indu stry. In the intervening years, the capital costs and the required infrastructure have changed. For instance, three of the platforms have already been converted to enable the injection of produced water and two of the platforms have been shut

- in. 47 An up

- t o

- date cost analysis would show that the costs to implement a zero discharge requirement would now be significantly lower than in 1996.Section 3

– Coastal Oil and Gas (O&G) Section 3.5

– Availability of Zero Discharge Technology

44 B. Promotion of Technological Innovation
The implementation of a zero discharge requirement would encourage innovative pollution control methods. In 2003, Marathon stated that it had reduced its exploration and production disposal costs for its Cook Inlet operations by using water

- based drilling fluids and beneficial reuse of materials following water

- washing, thereby red ucing the amount of its drilling wastes requiring Class II disposal wells. 48 These changes reduced Marathon’s disposal costs from $53.63 per barrel in 1995 to $5.85 per barrel in the 2000

- 2003 time period. 49

47 EPSTEIN, supra, at 18

48 EPSTEIN, supra, at 2 4.

49 Id.
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Comment Number: EPA

- HQ

- OW

- 2010

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– 5 Organization: Native Village of Eklutna (NVE) Commenter Name: Marc Lamoreaux Commenter Type: Tribal Government

Comment Excerpt Text:
IV. Available Technology
In 1996, EPA found that it was not technically possible to inject drilling waste in Cook Inlet because of the geological makeup of the area. This is no longer the case.
The exemption for Cook Inlet is based on ou tdated information about the ability of facilities to achieve zero discharge of wastes such as drilling fluids and drill cuttings. Improvements in “grind and inject” technologies for drilling wastes now can overcome the Cook Inlet injection well plugging p roblems that were a large part of the previous rationale for allowing drilling waste disposal directly into Cook Inlet. Marathon and Chevron/Unocal, both major operators in the area, opened new grind

- and

- inject facilities for drilling wastes in the Cook In let region in 1999 and 2002, respectively, demonstrating the technological feasibility of injecting drilling waste in Cook Inlet. 37

37 2004 ELG SUPPORT DOCUMENT, supra, at 5

- 228.
Response:
Please see the response to EPA

- HQ

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- 5.Section 3

– Coastal Oil and Gas (O&G) Secti on 3.5

– Availability of Zero Discharge Technology

45 Comment Number: EPA

- HQ

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– 7 Organization: Native Village of Eklutna (NVE) Commenter Name: Marc Lamoreaux Commenter Type: Tribal Government

Comment Excerpt Text:
The cost analysis of the implementation of a zero discharge requirement was carried out in 1996. In the intervening years, the capital costs and the required infrastructure have changed. For instance, three of the platforms have already been converted to enable the injection of produced water and two of the platforms have been shut

- in. 43 It is estimated that the reduction in expenditure for these five platforms represents over 15% of the estimated capital costs. 44 An up

to

- date cost analysis would show that the costs to implement a zero discharge requirement would now be signif

icantly lower than in 1996.
B. Promotion of Technological Innovation
The implementation of a zero discharge requirement would encourage innovative pollution control methods. In 2003, Marathon stated that it had reduced its exploration and production disp osal costs for its Cook Inlet operations by using water

- based drilling fluids and beneficial reuse of materials following water

- washing, thereby reducing the amount of its drilling wastes requiring Class II disposal wells. 45 These changes reduced Marathon’ s disposal costs from $53.63 per barrel in 1995 to $5.85 per barrel in the 2000

- 2003 time period. 46

43 EPSTEIN, supra, at 18.

44 Id.

45 EPSTEIN, supra, at 24.

46 Id.
Response:
Please see the response to EPA

- HQ

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- 5.Section 3

– Coastal Oil and Gas (O&G) Section 3.6

– Economic Feasibility of Zero Discharge Technology

46 Section 3.6

– Economic F easibility of Zero Discharge Technology

Comment Number: EPA

- HQ

- OW

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– 6 Organization: Cook Inletkeeper Commenter Name: Suzanne Bostrom and Sarah Mackie Commenter Type: Environmental Organization

Comment Excerpt Text:

A. Economic Affordability of Available Technology
In 1996 and again in 2004, EPA held that the forced introduction of a zero discharge requirement would have a severe economic impact on the oil industry in Cook Inlet. There are several indications that zero discharge is economically feasible for the industry. For example, ConocoPhillips converted the Tyonek platform to zero discharge for its produced water in 2004 and Chevron/Unocal converted the Anna platform in 2005. 42 Since beginning production in Cook Inlet in 200 2, Forest Oil injects its platform’s produced water and drilling wastes at the Osprey platform. Thus, for 3 of the 12 operating Cook Inlet platforms, managing produced water in this way has been demonstrated to be economically feasible. 43

In 2004, EPA foun d the oil industry in Cook Inlet to be “marginal.” 44 Renewed exploration and drilling in Cook Inlet, however, has led to an increase in the number of barrels of oil produced to 15,000 per day compared to 9,000 barrels a day in 2008. 45

An accompanying incre ase in the number of jobs has resulted in a 15% reduction in unemployment from August 2012 to September 2013. 46 Without a zero discharge requirement, the profitable oil platforms of Cook Inlet do not incur costs which are incurred by operators in other par ts of the country, nor do they pay the full cost of production as they do not pay to dispose of their waste into Cook Inlet. This policy amounts to a federal subsidy for the oil industry in Cook Inlet that distorts markets and creates an uneven playing fie ld.

42 EPSTEIN, supra, at vi.

43 Id.

44 2004 ELG SUPPORT DOCUMENT, supra, at 5

- 229.

45 ‘Where are the jobs to be found in Alaska’s air

- tight employment market? (Alaska Dispatch, September 30, 2013).

46 ‘Id.
Response:
EPA appreciates the information provided by the commenter. EPA plans to further study the exemption for Cook Inlet in the Coastal Subcategory of Part 435 in light of this and other information received. EPA plans to provide an update on the status of its investigation into the Cook Inl et Oil & Gas effluent guidelines requirements in the 2014 Final Plan.Section 3

– Coastal Oil and Gas (O&G) Section 3.6

– Economic Feasibility of Zero Discharge Technology

47 Comment Number: EPA

- HQ

- OW

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– 8 Organization: Cook Inletkeeper Commenter Name: Suzanne Bostrom and Sarah Mackie Commenter Type: Environmental Organization

Comment Exce rpt Text:

EPA’s re

- evaluation of the 1996 Coastal ELGs and the promotion of technological innovation is particularly important at this time because of the renewed interest in oil and gas development in Cook Inlet. EPA previously assumed that Cook Inlet w as a mature oil and gas field near the end of its useful life but the draft permits for exploration facilities recently released by EPA and the State recognize the reinvigoration of oil and gas exploration and development in Cook Inlet and pave the way for new exploration facilities that will likely lead to new development and production facilities and more pollution in Cook Inlet. In fact, with two new jack

- up rigs drilling for the past two years in Cook Inlet, drilling activity has taken a wholly differen t path than EPA anticipated in 1996. Therefore, EPA should revise the ELGs to take into account changed economic and technological circumstances since 1996.
Response:
Please see the response to EPA

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- 6.

Comment Number: EPA

- HQ

- OW

- 2010

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- 0221

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– 6 Organization: Native Village of Eklutna (NVE) Commenter Name: Marc Lamoreaux Commenter Type: Tribal Government

Comment Excerpt Text:
A. Economic Affordability of Available Technology
In 1996 and again in 2004, EPA held that the forced introduction of a zero discharge requirement would have a severe economic impact on the oil industry in Cook Inlet. There are several indications that zero discharge is economically feasible for the industry. For example, ConocoPhillips converted th e Tyonek platform to zero discharge for its produced water in 2004 and Chevron/Unocal converted the Anna platform in 2005. 38 Since beginning production in Cook Inlet in 2002, Forest Oil injects its platform’s produced water and drilling wastes at the Ospre y platform. Thus, for 3 of the 12 operating Cook Inlet platforms, managing produced water in this way has been demonstrated to be economically feasible. 39

In 2004, EPA found the oil industry in Cook Inlet to be “marginal.” 40 Renewed exploration and drillin g in Cook Inlet, however, has led to an increase in the number of barrels of oil produced to 15,000 per day compared to 9,000 barrels a day in 2008. 41

An accompanying increase in the number of jobs has resulted in a 15% reduction in unemployment from August 2012 to September 2013. 42 Without a zero discharge requirement, the profitable oil platforms of Cook Inlet do not incur costs which are incurred by operators inSection 3

– Coastal Oil and Gas (O&G) Section 3.6

– Economic Feasibility of Zero Discharge Technology

48 other parts of the country, nor do they pay the full cost of production as they do not p ay to dispose of their waste into Cook Inlet. This policy amounts to a federal subsidy of the oil industry in Cook Inlet.

38 EPSTEIN, supra, at vi.

39 Id.

40 2004 ELG SUPPORT DOCUMENT, supra, at 5

- 229.

41 ‘Where are the jobs to be found in Alaska’s air

- tight employment market? (Alaska Dispatch, September 30, 2013).

42 ‘Id.
Response:
Please see the response to EPA

- HQ

- OW

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- 6.

Comment Number: EPA

- HQ

- OW

- 2010

- 0824

- 0221

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– 8 Organization: Native Village of Eklutna (NVE) Commenter Name: Marc Lamoreaux Commenter Type: Tribal Government

Comment Excerpt Text:
EPA’s reevaluation of the 1996 Coastal ELGs and the promotion of technological innovation is particularly important at this time because of the renewed interest in oil and gas devel opment in Cook Inlet. EPA previously assumed that Cook Inlet was a mature oil and gas field near the end of its useful life, but the draft permits for exploration facilities recently released by EPA and the State recognize the reinvigoration of oil and gas exploration and development in Cook Inlet, and pave the way for new exploration facilities that will likely lead to new development and production facilities and more pollution in Cook Inlet. Therefore, EPA should revise the ELGs to take into account chan ged economic and technological circumstances since 1996.
Response:
Please see the response to EPA

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- 6.Section 4

– Seafood Processing Section 4.1

– Requirements for Grinding Waste

49 Section 4

– Seafood Processing

Section 4.1

– Requirements for Grinding Waste

Comment Number: EPA

- HQ

- OW

- 2010

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– 1 Organization: Freez er Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
The FLC specifically wishes to raise attention to fish grinding and water quality requirements under Offshore Seafood Processors General Permit AK

- G2

- 4000 affecting our members’ fleet. The FLC has previously expressed our concerns to the EPA about these regulations, including in two meetings with the EPA Office of Water (OW) in 2012 and 2013 and in a February 21, 2012 letter to OW Senior Policy Ad visor Ellen Gilinsky. In our 2013 meeting with OW, we were encouraged to submit comments about our concerns during this comment period. While no revisions are proposed in the Preliminary 2012 Plan to the existing fish grinding and water quality requirement s, we hope these comments will serve to further inform the EPA about the adverse impacts of the regulations and move the agency to develop revisions that better address our fleet.
Response:
Where nationally applicable effluent limitations guidelines and standards (ELGs) exist for an industrial sector, National Pollutant Discharge Elimination System (NPDES) permits must incorporate those technology

- based effluent limitations and standards, in addition to any water quality

- based effluent limitations necess ary to meet state water quality standards. See 33 U.S.C. §§ 1311(b), 1342(a); 40 C.F.R. 122.44, 125.3. In developing these responses, EPA reviewed the Development Document for the Seafood Processors ELGs (EPA

- 440/1

- 74

- 020a, June 1974) (EPA

- 440/1

- 75/041a, September 1975). Upon closer examination, EPA has found that only shore

- based facilities were considered during the development of the ELGs. In the absence of nationally applicable ELGs, permit writers must use best professional judgment (BPJ) to identif y technology

- based requirements. See 33 U.S.C. § 1342; 40 C.F.R. 125.3(c)(2). Therefore, even though vessels were not considered during the development of the ELGs, the permit writer may still find that the 0.5” grind requirement or other economically fea sible limitation is applicable to a seafood processor upon completion of a BPJ analysis. In addition, where permit limits will become less stringent, the permit writer must determine whether backsliding can occur. See 33 U.S.C. § 1342(o). Further, where degradation may occur, an antidegradation analysis must be completed.
The commenter expresses concern about “fish grinding and water quality requirements under Offshore Processors General Permit AK

- G2

- 400.” The Agency’s effluent guidelines planning
proces s is concerned with development and revision of nationally applicable ELGs, not development or revision of particular permits. As such, comments related to the requirements under the Offshore Processors General Permit are outside the scope of the Agency's effluent guidelines planning process. As appropriate, EPA will consider comments about the general permit during the permit reissuance process.Section 4

– Seafood Processing Section 4.1

– Requirements for Grinding Waste

50 EPA notes that the general permit number referenced in this comment is incorrect. AK

- G2

- 4000 should be AK

- G52

- 40 00.Sectio n 4

– Seafood Processing Section 4.2

– Off

- shore Processor Applicability

51 Section 4.2

– Off

- shore Processor Applicability

Comment Number: EPA

- HQ

- OW

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– 3 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
1.) Authorized Discharges

Discha rges from seafood processing facilities requirement that “Permittees must grind solid seafood processing wastes to 0.5 inch or smaller in any dimension prior to discharge.”
We are aware that this has been a requirement for many years in our fleet. In fact in 1975, EPA imposed the 0.5

- inch grind

- size requirement as a CWA technology

- based standard for remote Alaskan seafood processors. 1 As part of this action, EPA established numerous subcategories that relate to specific species and processing methodologies .2 These were developed based on differences in raw material used, product produced, manufacturing process employed, age, size, wastewater constituents and other factors. 3 EPA also identified the control and treatment technology in existence and used withi n each subcategory. 4 We understand EPA utilized this analysis to determine what limitations would constitute the technology

- based standards.
In developing the applicable regulatory requirements, EPA did not identify which effluent subcategory applied to offshore seafood processors. EPA considered the different factors affecting Alaskan seafood processors based on their geographic location, distinguishing between remote and non

- remote processors. Non

- remote processing facilities are those “located in popul ation or processing centers including but not limited to Anchorage, Cordova, Juneau, Ketchikan, Kodiak, and Petersburg.” 5 These processors are required to meet effluent standards based on effluent characteristics such as total suspended solids, oil and gre ase, and pH. 6

Remote processors, which include those not sited in the above locations, are only prohibited from discharging pollutants with exceed 1.27 cm (0.5 inch) in any dimension. 7

In distinguishing between remote and non

- remote seafood processors, EP A noted that processors in isolated and remote areas of Alaska are at a comparative economic disadvantage compared to processors in population or processing centers regarding the ability to meet the effluent limitation guidelines. 8 EPA stated that:

[t]he isolated location of some Alaskan seafood processing plants eliminates almost all waste water treatment alternatives because of undependable access to ocean, land, or commercial transportation disposal methods during extended severe sea or weather condit ions, and the high cost of eliminating the engineering obstacles due to adverse climatic and geologic conditions. 9

In comparison, plants located in population or processing centers have access to reliable, cost

effective alternatives such as solids recover y techniques or disposal. 10 This distinction provided the basis for EPA to adopt the grind

- size requirement for remote processors. 11Section 4

– Seafood Processing Section 4.2

– Off

- shore Processor Applicability

52 For purposes of the General NPDES Permit, EPA states that offshore seafood processors, including the vessels in the FLC m ember fleet, are considered “remote” processors. 12 However, it does not appear that EPA anticipated that the grind

- size requirement would be applied to vessels at the time of promulgation. In fact the discussion of processor location suggests that EPA was only considering land

- based processing facilities. As referenced above, EPA’s justification for adopting the grind

- size limitation for remote processors relies on the lack of dependable access to ocean, land, or commercial transportation disposal methods. However, offshore processing vessels are not hindered by this lack of access. We can only speculate that EPA’s oversight could be attributed to the lack of a robust domestic offshore catcher

- processor fleet at the time of promulgation, which did not develo p until after the implementation of the Magnuson

- Stevens Act in 1976.

1 40 Fed. Reg. 55,770 (Dec. 1, 1975)

2 40 C.F.R. Part 408 (for example, the remote Alaskan crab meat processing subcategory, the Alaskan mechanized salmon processing subcategory, the Alaskan bottom fish processing subcategory, the Alaskan herring fillet processing subcategory).

3 40 Fed. Reg. 4,582, 4,582

- 83 (Jan. 30, 1975) (Before adopting the final regulations, EPA promulgated an interim final rule containing much of the basis for the subsequent final rule.)

4 Id. at 4,583. This analysis included an identification of each distinct control and treatment technology, including both in

- plant and end

- of

- process technologies, which exist or are capable of being designed for each segment of the point source category. EPA also examined the problems, limitations and reliability of each of the technologies and the cost of application of such technologies.

5 E.g., 40 C.F.R. § 408.202(a).

6 Id.

7 40 C.F.R. § 408.202(b).

8 40 Fed. Reg. at 4, 591.

9 Id.

10 Id.

11 See Id. at 4,586.

12 EPA, Final Biological Evaluation for the General NPDES Permit for Offshore Seafood Processors in Alaska at 22 (Aug. 2009).
Response:
See response to EPA

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- 1

.Section 4

– Seafood Processing Section 4.3

– Revise General Permit Requirements

53 Section 4.3

– Revise General Per mit Requirements

Comment Number: EPA

- HQ

- OW

- 2010

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– 2 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
The FLC considers two aspects of the current Alaska Offshore Seafood Processors General Permit AK

- G2

- 4000 avoidable regulatory burdens on our industry: 1) the requirement to grind fish waste to 0.5 inches; and 2) the quarterly water quality testing requirement. While our vessels have gone to great lengths and expens e in assuring that we are fully in compliance with the permit, these two burdensome aspects of the permit have shown themselves in our respective opinion to be wasteful, laborious, expensive, and of little to no utility in meeting EPA’s purpose. In fact we believe in both cases the current requirements in question actually do more harm to the environment than resulting good. Thus the FLC has a strong desire to begin participating directly with EPA Headquarters in discussions and investigation into the ratio nale and utility behind continuing these requirements. FLC members are fully committed to continue to spend considerable time and resources in the direction of full compliance of these requirements, but desire to work with EPA Headquarters to examine wheth er these particular practices are necessary to continue long

- term.
Response:
See response to EPA

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- 1.Section 4

– Seafood Processing S ection 4.4

– Quarterly Monitoring

54 Section 4.4

– Quarterly Monitoring

Comment Number: EPA

- HQ

- OW

- 2010

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– 9 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
2.) Influent / Effluent Monitoring Requirement
“Each processor must conduct, at a minimum, quarterly monitoring”
This is a new requirement of the permit and requires heavy metal testing quarterly for nine different heavy metals, none of which are known to be a by

- product of fish processing at sea. Water coming in (influent) is seawater from the North Pacific, water going out is seawater from the North Pacific with fish residue. Th is is clearly not a process where you would expect to find arsenic, copper, cadmium, lead, mercury, nickel, selenium, silver or zinc in any significant amounts to raise concerns. These requirements are being complied at considerable inconvenience and with significant costs.
The requirement for testing mercury is at such a low level as to contain a warning in EPA’s own Method 1669, Sampling Ambient Water for Trace Metals at EPA Water Quality Criteria Levels which states “Even human contact can be a source of trace metals contamination. For example, it has been demonstrated that dental work (e.g., mercury amalgam fillings) in the mouths of laboratory personnel can contaminate samples that are directly exposed to exhalation” In other words don’t breathe while t aking samples.
Testing at these extremely low thresholds is complex and difficult to carry out with harsh conditions by crew members onboard a fishing vessel. The laboratories nearest to our fishing operations capable of testing to these EPA thresholds on all metals is located in either Kelso, Washington or Anchorage, AK, both of which require shipping of samples from remote Alaska and following further proper storage, chain of command and shipping protocols. Further difficulties were highlighted by the EPA at a December 2011 EPA compliance workshop by EPA’s Katie Adams and Don Matheny who clearly articulated that many of the quality assurance issues they are seeing are not only from the sampling, shipping and preservations issue but from the laboratory test ing itself. In other words we are doing all of this and three years into the new program we have little, if any reliable data. Boat sampling consistency is extremely difficult and laboratory testing is inconsistent.
The logistical requirements to perform t he testing are considerable. For example, one set of sample bottles, to do one round of testing, on one boat, for one quarter, is contained in a family size ice chest that must be shipped at considerable expense to a remote Alaska location. These are plast ic bottles preloaded with nitric and hydrochloric acid as part of the sample integrity process. Once filled, the bottles must be air freighted from Dutch Harbor to one of the testing labs in Kelso or Anchorage. Per the requirements, in order to preserve th e integrity of the samples, they must be offloaded immediately after vessels return to port, meaning a rush to get them off the vessel and on to a plane to deliver the samples in a timely manner. Freight alone forSection 4

– Seafood Processing Section 4.4

– Quarterly Monitoring

55 this return is around $75.00 each 21 , regar dless of location. Sampling expenses to produce the required reports are another $430.00 or roughly $500.00 for each kit plus the cost of shipping the kits to Dutch Harbor. This is each quarter multiplied by four quarters per year totaling $2000.00
per ves sel per year. Multiply this by our 30 vessel fleet and this is costing our members $60,000 per year to produce what even by EPA’s own admission is inadequate information as many of the samples taken end up producing unreliable data for a number of reasons just stated.
Again shipping ice chests full of seawater samples from remote locations like Dutch Harbor and only accomplishing what amounts to mounds of unreliable data is not protecting the environment and it could be argued that this is doing more harm t han good. Consider the plastic bottles, acid, ice chests and carbon foot print of the shipping alone as examples of harmful environmental practices. In our opinion, any benefit provided by the testing is overshadowed by the costs and difficulty in producin g data that appears to be of negligible value.

21 Cost to send ice chest via express mail from Dutch Harbor; cost determined by weight; source: Coastal Villages Seafoods
Response:
The commenter expresses concern about the metals monitoring requirements i n the Offshore Seafood Processors NPDES General Permit. The Agency’s effluent guidelines planning process is concerned with development and revision of nationally applicable ELGs, not development or revision of particular permits. As such, comments relate d to the requirements under the Offshore Processors General Permit are outside the scope of the Agency's effluent guidelines planning process. As appropriate, EPA will consider comments about the general permit during the permit reissuance process.Section 4

– Seafood Processing Section 4.5

– Remote Processor Economic Impacts

56 Section 4.5

– Remote Processor Economic Impacts

Comment Number: EPA

- HQ

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– 4 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
Additionally, it does not appear that EPA considered the effectiveness of the grind

- size requirement or the economic impact on shore

- based and offshore processors. 13 For example, EPA adopted the standard solely based on the anticipated impact of imposing other technology

based standards on rem ote processors. The EPAs Development Document, which was intended to provide the scientific and economic justification for the implementation of the effluent limitation guidelines, does not include the grind

- size requirement in its detailed assessment of t he effectiveness and costs of other effluent limitation measures. 14 However, a brief discussion of the justification for the grind

- size requirement is included in the section addressing best practicable control technology standards. 15 While other documents supporting its adoption may exist, 16 they do not appear to be publicly available at this time.

13 See EPA, Development Document for Effluent Limitations Guidelines and New Source Performance Standards for the Fish Meal, Salmon, Bottom Fish, Clam, Oyster, Sardine, Scallop, Herring, and Abalone Segment of the Canned and Preserved Fish and Seafood Processing Industry Point Source Category (Sept. 1975) (Development Document).

14 See generally Development Document chapters VII

– VIII.

15 Development Document at 438, 440

- 42.

16 See, e.g., Association of Pacific Fisheries v. EPA, 615 F.2d 794, 807

- 08 (9th Cir. 1980) (In review of administrative record regarding EPA’s effluent limitation guidelines for the seafood processing category, the court noted that EPA pr ojected that, for the Alaskan bottom fish processing facilities, “grinding costs ranged from $20,000 capital outlay and $50/day operation and maintenance (O & M) for a 13.6 ton per day plant to $38,000 capital and $60/day O & M for a 105.6 ton per

- day plan t.”)
Response:
See response to EPA

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- 3

.Section 4

– Seafood Processing Section 4.6

– Non

- Water Quality Impacts

57 Section 4.6

– Non

- Water Quality Impacts

Comment Number: EPA

- HQ

- OW

- 2010

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– 6 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Com ment Excerpt Text:
Since the development of our fleet of offshore catcher processors in the mid 1980’s vessels have installed the best available grinding technology to achieve the required effluent limitations. As discoveries were made that fish skin, sl ime, muscle, cartilage and other internal organ fibers, poised serious obstacles to meeting the standard vessel owners have repeatedly turned to available technology advancements and have installed larger and larger, and progressively more expensive grinde rs. Currently many of the smaller vessels such as those owned by FLC members and covered under this permit run grinding pumps using a 25 HP 3

- phase electric motor that draw over 60 amps even at high voltage. Power necessary to run this grinder needs to be generated onboard and will require up to 32 gals of fuel per day (1.6 gallons per hour x 20 hours per day). Multiply this by 30 vessels in our fleet (960 gallons per day), multiplied by the current estimated average for 2013 of 240 days of fishing per year and the result is an astounding 230,000 gallons of fossil fuel per year being consumed and resulting greenhouse gases expelled in order to grind fish products that came out of the ocean and are being returned to the ocean. Diesel fuel today 17 in Dutch Har bor Alaska is selling at $3.98 per gallon. We do not believe that the fuel cost and related impact on the environment are justified by what appears to be a non

- existent benefit resulting from the grinding requirement.

17 Last publish public price, October 3, 2013. Source: Clipper Seafoods, Ltd
Response:
See response to EPA

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- 1.Section 4

– S eafood Processing Section 4.7

– Grind Size Environmental Impacts

58 Section 4.7

– Grind Size Environmental Impacts

Comment Number: EPA

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– 5 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
While this grind size requirement likely has good and wise application for Inshore Processors operating in protected bays, shallow waters, areas of low tidal action, and currents, it has very little practical use for offshore vessels operating 3

- 200 miles offshore continuously travelling through the water. In fact our vessels’ discharges are many miles from land and are temporally and spatially dispersed. The vessels in our fleet operate and th us discharge into water that is at a minimum 35

- 120 fathoms deep (210

- 600 feet) and often much deeper and do so over great distances and time.
Response:
See response to EPA

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- 1.

Comment Number: EPA

- HQ

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- 2010

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– 7 O rganization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
Highlighting the foregoing is the fact that much of what is expelled by the grinders now as “cod

paste” and enters the water; wit hout grinding would be expelled as cod heads and entrails. The vessels are travelling through the water fishing at the same time as processing and any discharge is spread out spatially and temporally, if not ground the heads and entrails would be consumed some at the surface by sea

- birds and the remainder would sink to the ocean floor to be consumed by fish, crabs and sand fleas (Emerita). The FLC sees good reasons why it may be potentially more harmful to grind and discharge cod paste into the water than m ore environmentally friendly method of returning nutrients that have known consumers in the ecosystem.
Response:
See response to EPA

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- 1.Section 4

– Seafood Processing Section 4.8

– Small Vessel Grinder Feasibility

59 Section 4.8

– Small Vessel Grinder Feasibility

Comment Number: EPA

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– 8 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:
It is important to note the small size of the catcher processor (CP) vessels in the FLC fleet relative to other CP fleets. As no ted earlier, the HAL CP vessels that comprise the FLC fleet range in size from 110 to 185 feet in length. In contrast, American Fisheries Act (AFA) trawl CPvessels range in size from 220 to 376 feet in length 18 and the Amendment 80 (A80) trawl CP vessels r ange in size from 105 to 295 feet in length 19 . The longest FLC vessel is 191 feet shorter, over a full vessel length, than the longest AFA trawl CP and 110 feet shorter than the longest A80 trawl CP. The relatively small size of the vessels also means that the processing areas, or factories, on the vessels are smaller than those in other fleets. These smaller factories process less fish and thus produce less effluent than larger vessels in other fleets. Despite this, the grind size requirements make no diff erentiation between HAL CP vessels and CP vessels in different fleets. FLC vessels have to install the same grinding equipment in a smaller space to handle less effluent than in other fleets.
The grinders installed on FLC and other CP fleets are large and dangerous pieces of equipment. FLC vessels, because of their smaller size, have no option other than placing these grinders in the same area crew is working, bringing dangerous machinery into tight factory work quarters. This has led to crew injuries on ou r vessels, including one in March 2013 on a 116 foot HAL CP vessel that resulted in a crew member severing fingers in the grinder and being airlifted to shore for emergency treatment. The accident occurred in federal waters off of St. Paul Island in the Be ring Sea, approximately 300 miles west of the Alaskan mainland and 240 miles north of the Aleutian Islands. Weather conditions at the time of the injury consisted of 51 mph winds and over 20 foot seas. Because of the poor conditions, the injured crew membe r was not immediately able to be airlifted to a medical facility. Rather, the vessel had to proceed toward St. Paul where a helicopter could meet the vessel once conditions improved. The crew member was airlifted to St. Paul the following morning, then flo wn to mainland for additional treatment. 20 This incident highlights the inherently dangerous conditions faced by those who work on the open seas and the absolute need to prioritize safety on our vessels, so as to avoid accidents that, if not initially, can become severe and even life threatening because of the difficulty in reaching emergency care. Placement of these grinders on FLC vessels is a hazard that creates unnecessary risk to the safety of our crew members.

18 http://www.atsea.org/processor_illustr ation.php

19 http://groundfishforum.org/

20 http://www.uscgnews.com/go/doc/4007/1719247/Coast

- Guard

- crews

- medevac

- injured

fisherman

- near

- St

- Paul

- AlaskaSection 4

– Seafood Processing Section 4.8

– Small Vessel Grinder Feasibility

60 Response:
See response to EPA

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- 1.Section 4

– Seafood Processing Section 4.9

– Mobile Seafood Processing

61 Section 4.9

– Mobile Seafood Processing

Comment Number: EPA

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– 10 Organization: Freezer Longline Coalition Commenter Name: Chad I. See Commenter Type: Trade Association

Comment Excerpt Text:

Conclusion
In Executive Order 13563, the President ordered greater coordination between agencies to reduce redundant, inconsistent, or overlapping regulatory requirements in order to reduce costs to regulated industries through the simplification and harmonization of rules. The Executive Order imposes this obligation on a continuing basis, s pecifically stating that “[i]n developing regulatory actions and identifying appropriate approaches, each agency shall attempt to promote such coordination, simplification, and harmonization.” E.O. 13563, at § 3 (Jan. 18, 2011). In addition, in his 2012 St ate of the Union address, coincidentally the day after our 2012 meeting with OW in Washington DC, the President again called on agencies to reduce the regulatory burden on affected industries.
The FLC requests EPA review the above

- described requirements un der the Alaska Offshore Seafood Processors General Permit AK

- G2

- 4000 and consider revisions to the 2012 Effluent Guidelines Program Plan that address our concerns. We are willing to work side

- by

- side with the EPA in an effort to fully protect the environme nt while exploring ways to streamline business, reduce unnecessary regulatory burden, and keep America working.
Response:
See response to EPA

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Comment Number: EPA

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– 1 Organization: Perkins Cole on beha lf of the At Sea Processors Association and the Pacific Seafood Processors Association Commenter Name: L. John Iani & Charles R Brumfield Commenter Type: Trade Association

Comment Excerpt Text:

BEFORE THE ADMINISTRATOR OF THE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

PETITION FOR RULEMAKING

AT SEA PROCESSORS ASSOCIATION

PACIFIC SEAFOOD PROCESSORS ASSOCIATIONSection 4

– Seafood Processing Section 4.9

– Mobile Seafood Processing

62 Petitioners

PETITION FOR RULEMAKING SEEKING A NEW SUBPART TO THE CANNED AND PRESERVED SEAFOOD PROCESSING POINT SOURCE

40 C.F.R. PART 408

UNDER THE FEDERAL CLEAN WATER ACT
September 27, 2013
Pursuant to the Administrative Procedure Act and the Clean Water Act, petitioners file this Petition For Rulemaking with the Administrator and respectively request that the Administrator amend 40 C.F.R. Part 408, as follows:
Promulgate new effluent limitation guidelines applicable to discharges resulting from the processing of seafood on mobile seafood processing vessels.

I. BACKGROUND
In 1975, EPA published national Effluent Limitation Guideline regulations ( "ELG") for the Canned and Preserved Seafood Processing Point Source Category (40 C.F.R. Part 408). The ELGs were divided into 33 Subparts covering various processing operations including: Alaskan Hand

- Butchered Salmon, Alaskan Mechanized Salmon, Alaskan Bo ttom Fish, Alaskan Herring Fillets, West Coast Hand

- Butchered Salmon, West Coast Mechanized Salmon, West Coast Non

Alaskan Conventional Bottom Fish, Non

- Alaskan Mechanized Bottom Fish and Non

- Alaskan Herring Fillets.
The 1975 ELGs were promulgated based on the "Development Document for Interim Final Effluent Limitations Guidelines and Proposed New Source Performance Standards for the Fish Meal, Salmon, Bottom Fish, Sardine, Herring, Clam, Oyster, Scallop and Abalone Segment of the Canned and Preserved Sea food Processing Point Source Category" ("Development Document") issued in January 1975 by EPA (EPA 440/1

- 74/041 Group I, Phase II). Neither this document, nor any of the other EPA documents 1 prepared to support the ELGs, address mobile seafood processing v essels because the U.S. seafood processing fleet did not develop until after the implementation of the Magnuson

- Stevens Act of 1976 (16 U.S.C. §1801). 2

NPDES permits issued for facilities that fall within a designated Subpart are required to impose the Be st Conventional Control Technology ("BCT") set forth in the ELGs. However, while the ELGs for each subpart purport to constitute BCT for the shore based processing facilities in that subcategory, they are not BCT for mobile seafood processing vessels becau se EPA never made that determination.
Because of this gap in the regulations, EPA has generally applied the ELGs, which were evaluated only for the shore based processing industry, to mobile seafood processing vessels as well.
Therefore, this petition seek s to have EPA promulgate a specific ELGs for mobile seafood processing vessels that establishes BCT for these vessels.Section 4

– Seafood Processing Section 4.9

– Mobile Seafood Processing

63 II. THE PETITIONERS
The At Sea Processors Association is a nonprofit trade association representing six companies that own and operate 16 U.S.

- flag catcher/processor vessels that participate principally in the Alaska pollock fishery and west coast Pacific whiting fishery. 3

The Pacific Seafood Processors Association is a nonprofit seafood industry trade association. Its corporate members ar e major seafood processing companies with operations in Alaska and Washington. 4

III. THE CURRENT REGULATIONS
In general, the current ELGs establish the same technology

- based BCT for all Subparts in the Category, except for Alaska.
Alaska is treated unique ly under the regulations; specifically Alaska is the only state with specific Subparts and the Alaska Subparts are the only ones that distinguish between seafood processing facilities operating in "remote" and "non

- remote" areas. For "non

- remote" areas (de fined as "population and processing centers"), the BCT is screening; the same BCT that is applied to non

- Alaska Subparts. However, for "remote" areas, the BCT is grinding, rather than screening.
Recently, EPA issued a General NPDES Permit for Offshore Sea food Processors in Alaska (AKG52

- 4000) which covers all seafood processing vessels operating beyond 3 nautical miles from shore. Because those vessels are operating in "remote" areas of Alaska, BCT is grinding. However, since there is no specific subcateg ory for mobile seafood processing vessels, the BCT for all other vessels operating outside Alaska is screening

-- a technology that is not feasible to implement. 5

This Petition for Rulemaking is submitted to address this discrepancy.

IV. RATIONALE SUPPORT ING PROPOSED RULE
Petitioners seek to have EPA create a new Subpart for mobile seafood processing vessels with grinding as the BCT.
First, we submit that specific ELGs for this industry segment is appropriate because this classification of mobile seafood p rocessing vessels were not considered when the current ELGs were adopted and there are fundamental differences between mobile seafood processing vessels and shore

- based seafood processing facilities

-- differences that make screening impossible to implement. Additionally, the mobile seafood processing vessels' impact on the marine environment is significantly different from that of shore based facilities, which further supports the creation of a new ELG that recognizes this important difference.

Sec ond, we submit that grinding is the appropriate BCT. To establish BCT, the Clean Water Act sets forth the factors to be considered; they include: "the reasonableness of the relationship between the costs of attaining a reduction in effluents and effluent r eduction benefits derived ...and shall take into account the engineering aspects of the application of various types ofSection 4

– Seafood Processing Section 4.9

– Mobile Seafood Processing

64 control techniques, process changes.

.. ." 33 U.S .C. 1314(b)(4)(B) . Those factors were never evaluated for the mobile seafood processin g industry sector.

A. Vessel Characteristics
The mobile seafood processing vessels covered by this petition are engaged in the business of either harvesting and processing their own catches or receiving catches from other catcher vessels and processing wh ile operating underway at

- sea at locations in federal jurisdictional waters (beyond 3 nautical miles from the baseline) . These vessels are constantly moving while operating, at speeds in excess of 2 nautical miles per hour, and are discharging their proce ssing fish waste materials only while underway. (as opposed to a shore based seafood processing plant that operates constantly at the same fixed location depositing waste materials at a specific discharge location.
These vessels must keep moving while oper ating and need to transfer substantial amounts of seawater through their processing operations in order to render the fish into marketable products. Unlike shore based seafood processors operating at fixed locations, these mobile seafood processing vessels do not have the space to collect the effluent flows resulting from the ingress of seawater to allow enough solids to reside and settle out to be effectively screened. These mobile seafood processing vessels accept, on average, in excess of 200 metric tons of round fish (mainly pollock or whiting) per day and require an average of 500

- 800 metric tons of water to move the fish through the production facility. Because they are mobile vessels with limited space and need to remain stable in ocean conditions, th e processing effluent must be removed from the vessel as quickly as possible. Excess water can effect the seaworthiness of the vessel. Current practice is to pass the effluent through state of the art grinding systems prior to discharging. As discussed bel ow, the recent Ocean Discharge Criteria Evaluations (ODCE) prepared by EPA have determined no adverse impact on the marine environment results from these discharges.
Without the relief sought in this petition, these mobile seafood processing vessels will b e subjected to NPDES permits that incorporate the current and inapposite ELG's that will require screening technology on the vessels' discharge outfalls . Those screens will cause the mobile seafood processing vessels to become unstable and not seaworthy. That will result in an unsafe operating condition that will be life threatening for those workers because the screening technology require significant holding space and resident time that the vessels cannot provide.
This petition seeks an ELG that allows these vessels to operate safely while protecting the marine environment because NPDES permits will include limits that are appropriate for mobile seafood processing vessels that operate far offshore and discharge in a manner that does not adversely impact their discharge locations because of their constant movement. ELG's need to be promulgated that recognizes this new and distinct seafood processing category.

B. Effluent Characteristics
EPA has consistently recognized that the primary water quality impact of seafood waste discharge results from the deposition of waste material on the seafloor. In EPA's "Final Biological Evaluation For the General NPDES Permit for Offshore Seafood Processors In Alaska" (August, 2009), EPA recognizes that those concerns are n ot relevant to mobile seafood processing vessels. That document states, in part:Section 4

– Seafood P rocessing Section 4.9

– Mobile Seafood Processing

65 "In areas with strong currents and high tidal ranges, assimilation is high, waste materials disperse rapidly, and there is little impact on water quality." (at p.60).

"The dynamic environment and mobile facilities will make it unlikely that there will be a significant deposition of seafood deposits on the seafloor. . . . [T]he mobile offshore processors covered in the proposed permit would be expected to be in high tidal are as with adequate dispersion and dilution where the seafood discharges are not expected to significantly accumulate and effects should be minimum." (at pp. 64

- 65).
In contrast to shore based processing plants, seafood processing vessels are constantly movin g and do not discharge in the same location.

C. Conclusion
Based on the specific characteristics of mobile seafood processing vessels, the location of their operations and the minimal impact, if any, on water quality, we submit that grinding is BCT for mob ile seafood processing vessels; therefore, the ELGs should be amended to establish grinding as BCT for this segment of the seafood processing industry.

V. THE PROPOSED RULE
Based on the above information, Petitioners request that the Administrator initiate a rulemaking under the Administrative Procedures Act either to :
(1) Add a new Subpart to 40 C.F.R. Part 408 for "Non

- Alaskan Mobile Processing Vessels" and to establish effluent limitation guidelines for this new Subpart designating grinding as BCT; or, in the alternative,
(2) Amend Subpart U (Non

- Alaskan Conventional Bottom Fish) and Subpart V (Non

- Alaskan Mechanized Bottom Fish) of 40 C.F .R. Part 408 to establish effluent limitation guidelines for mobile seafood processing vessels processing those spec ies, designating grinding as BCT.

1 These documents include: "Economic Analysis of Interim Final Effluent Guidelines Seafood Processing Industry" published February, 1975 by EPA Office of Planning and Evaluation (EPA

230/1

- 74

- 047) ; "Evaluation of Waste D isposal Practices of Alaska Seafood Processors" published in December, 1974 by the EPA Office of Enforcement (EPA

- 330/2

- 75

- 001) ; and "Alaska Seafood Processing" published in June, 1973 by EPA Region X (Working Paper 83) .

2 For example, the Development Do cument states: "[Bottom] fish are delivered to the docks. . . ." (at p. 44a); and "Most of the solid waste from the Pacific Coast [bottom fish] plants is ground and bagged for the pet and animal food market." (at p. 110). Neither of these statements reflec ts the mobile seafood processing segment of the industry.

3 American Seafoods Co., Arctic Storm Management Group, Coastal Villages, Glacier Fish Co., LLC, Starbound LLC and Trident Seafoods Corporation.

4 Alaska General Seafoods, Inc., Alyeska Seafoods, In c ., Golden Alaska Seafoods, LLC, North Pacific Seafoods, Inc., Peter Pan Seafoods, Inc ., Phoenix Processor Limited Partnership, Trident Seafoods Corporation, Unisea, Inc., and Westward Seafoods, Inc.Section 4

– Seafood Processing Section 4.9

– Mobile Seafood Processing

66 5 It is important to note that EPA has recognized this issue and attempted to address it on an ad hoc basis. Region 1 issued an NPDES Permit to the MN Atlantic Freedom operating off the coast of New England in which it recognized that screening, although required by the ELGs, was not the appropriate control t echnology for the vessel. Instead, it applied the grinding requirements of the Alaska Subpart, stating in the Fact Sheet: "[The Alaskan Herring Fillet] ELGs do not apply to this facility because American Freedom does not operate in Alaska. However, based o n the operating range of American Freedom, the operations of this vessel can be considered comparable to those of remote Alaskan seafood processors."
Response:
This comment contains the same information and requests that EPA received in the form of a Pet ition for Rulemaking, which was submitted to EPA by the At Sea Processors Association and the Pacific Seafood Processors Association on September 27, 2013. EPA previously explained in a letter to the petitioners, dated November 12, 2013, that EPA is consid ering the requests in the Petition. This is still the case. EPA plans to respond to the petitioners’ requests directly (outside of the effluent guidelines planning process) once the Agency has completed its consideration of the issues raised.Section 5

– Dental Amalgam Section 5.1

– Call for EPA Decision

67 Section 5

– Dental Amalgam

Section 5.1

– Call for EPA Decision

Comment Number: EPA

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– 1 Organization: National Association of Clean Water Agencies (NACWA) Commenter Name: Cynthia A. Finley Commenter Type: POTW Group

Comment Excerpt Text:

NACWA’s comments below are related to the dental amalgam rule that is listed in the Preliminary Plan with a “TBD” schedule for both the proposed and final rule. In the Final 2010 Effluent Guidelines Program Plan (published on October 26, 2011), EPA announced a schedule of Octobe r 2011 for the proposed rule and October 2012 for the final rule. EPA has communicated to NACWA and to other stakeholders that the proposed rule has already been drafted, but that the rule has raised some concerns during informal interagency review with th e White House’s Office of Management and Budget (OMB). EPA continues to state that it plans to propose the rule despite the concerns raised by OMB, but so far there have been no signs that EPA is moving forward.
Because of the uncertainty created by EPA su rrounding this rule

– stating publicly that it plans to propose the rule, but making no noticeable progress

– development of local amalgam separator programs has stalled. Publicly owned treatment works (POTWs) do not want to put a program in place that wou ld need to be changed to comply with a federal rule. POTWs with existing, successful voluntary or mandatory dental amalgam separator programs are also concerned about needing to change their programs if a federal rule is finalized. Other POTWs are concerne d about potential unnecessary costs to comply with a federal rule if they do not have problems with mercury discharges. NACWA therefore asks EPA to either drop this rule from consideration, or to formally submit the proposed rule to OMB for review.
Respons e: EPA appreciates the comment. EPA is working on proposed effluent guidelines to control wastewater containing dental amalgam wastes. EPA will examine the issues raised by the commenter in the context of that rulemaking.

Comment Number: EPA

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– 5 Organization: National Association of Clean Water Agencies (NACWA) Commenter Name: Cynthia A. Finley Commenter Type: POTW Group

Comment Excerpt Text:
POTWs Waiting to Implement Amalgam Separator Programs Due to Uncertaint ySection 5

– Dental Amalgam Section 5.1

– Call for EPA Decision

68 NACWA has been told by several of its utility members that they have delayed establishing a local dental amalgam separator program due to the uncertainty about whether or not EPA will propose and finalize a federal rule. The Denver Metro wastewater Recla mation District is an example of a utility that has held off with developing a program due to this uncertainty. However, the District has finally begun the process of developing a program due to a change in water quality standards and a lower mercury limit in the utility’s next discharge permit. Like other utilities with existing programs, the District is worried that if the federal rule is eventually published, their program will need to be changed, with additional costs and resources for both the utility and the dentists.

Conclusion
NACWA asks EPA to take action on the draft dental amalgam separator rule, either dropping it from consideration in the final 2012 Effluent Guidelines Plan or formally submitting it to OMB.
Response:
EPA appreciates the commen t. EPA is working on proposed effluent guidelines to control wastewater containing dental amalgam wastes. EPA will examine the issues raised by the commenter in the context of that rulemaking.Section 5

– Denta l Amalgam Section 5.2

– Drop Rule

69 Section 5.2

– Drop Rule

Comment Number: EPA

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– 6 Organization: National Association of Clean Water Agencies (NACWA) Commenter Name: Cynthia A. Finley Commenter Type: POTW Group

Comment Excerpt Text:

NACWA recommends that EPA drop the rule from consideration and allow POTWs, states, and regions to develop their own programs as needed. Successful programs across the country have shown that when dental amalgam separator programs are needed, they can be implemented successfully by POT Ws. Many communities have found that a collaborative approach with dentists is successful, while others have found that a regulatory approach is necessary. Local regulators are best suited to determining the most effective methods for controlling mercury d ischarges in their communities, whether through dental amalgam separators alone or with a more holistic approach. If EPA drops the rule from consideration, POTWs that have been waiting for certainty with the federal rule can develop their own programs once they know that these local programs will not need to be changed. Other POTWs may not need to reduce mercury influent to protect the environment and would achieve greater environmental benefits by using their resources on other issues.
Response:
EPA appr eciates the comment. EPA is working on proposed effluent guidelines to control wastewater containing dental amalgam wastes. EPA will examine the issues raised by the commenter in the context of that rulemaking.Section 5

– Dental Amalgam Section 5.3

– Communication with EPA

70 Section 5.3

– Communication with EPA

Comment Nu mber: EPA

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– 2 Organization: National Association of Clean Water Agencies (NACWA) Commenter Name: Cynthia A. Finley Commenter Type: POTW Group

Comment Excerpt Text:

Previous Communications between NACWA and EPA

After EPA announced in 2010 that it would propose a dental amalgam rule, NACWA provided the Agency with input on pretreatment standards for dental amalgam on several occasions. NACWA’s concerns about the implementation of a national pretreatment standard

– which would affect the more than 100,000 dental offices in the U.S. and nearly all POTWs with a pretreatment program

– are summarized in the Association’s comment letter (dated November 23, 2011) about the Final 2010 Effluent Guidelines Program Plan. The primary concern was the burden that an amalgam separator rule would place on the POTW pretreatment programs that would be responsible for ensuring compliance at all dental facilities. NACWA also recommended that existing local amalgam separator programs be “grandfathered” in to any new rule, so that POTWs with successful mandatory dental amalgam separator programs or other similar BMP programs could continue their existing programs.
At the NACWA National Pretreatment & Pollution Prevention Workshops in 2012 and 2013, NACWA and its public agency members reiterated to EPA Office of Science & Technology staff that many POTWs do not need a dental amalgam separator program to control mercury, and that local programs that are already in place are working well. NACWA has asked for an opportunity to review a copy of the draft proposal, but EPA has not granted this request, despite the fact that a private consultant has reportedly seen a draft.

From the information that NACWA has received from EPA about the contents of the draft rule, th e Association still has concerns about its potential impacts on POTWs. These concerns were communicated by NACWA and its members during the 2013 NACWA Pretreatment & Pollution Prevention Workshop. NACWA understands that a new Dental Industrial User (DIU) c ategory would be established, which would create less of a burden on POTWs than if every dental office was considered a Significant Industrial User (SIU). However, NACWA also understands that if a dental office does not comply with requirements, it would b ecome a SIU. In some states, such as Oregon and North Carolina, POTWs must have a pretreatment program if they have any SIUs in their service area. Therefore, small POTWs in these states would need to establish an entire pretreatment program if even one de ntist in their service area became a SIU through noncompliance. Even if all dental offices fully complied with requirements and remained DIUs, some state pretreatment programs could still force small POTWs that do not currently have pretreatment programs t o regulate DIUs.
As NACWA members also expressed to EPA during the 2013 Pretreatment Workshop, POTWs with existing pretreatment programs are still concerned about the costs associated with establishing a dental amalgam separator program, even with the new DIU category. POTWs that already have amalgam separator programs in place are concerned that they will need to changeSection 5

– Dental Amalgam Section 5.3

– Communication with EPA

71 the programs to meet the requirements of a federal rule, which may damage the relationships that they have established with the dental com munity.
Response:
EPA appreciates the comment. EPA is working on proposed effluent guidelines to control wastewater containing dental amalgam wastes. EPA will examine the issues raised by the commenter in the context of that rulemaking.Section 5

– Dental Amalgam Section 5.4

– Local Dental Amalgam Separator Programs

72 Section 5.4

– Local D ental Amalgam Separator Programs

Comment Number: EPA

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– 3 Organization: National Association of Clean Water Agencies (NACWA) Commenter Name: Cynthia A. Finley Commenter Type: POTW Group

Comment Excerpt Text:
Existing Local Dental Amalgam Separator Programs are Successful
Many states and local governments have already established successful dental amalgam separator programs based on an established water quality need. Some examples of successful programs are as follows:

 The Narraga nsett Bay Commission (NBC) in Providence, Rhode Island , established a dental amalgam separator program in 2005 for the 90 dental facilities, representing 145 dentists, in its service area. NBC gave dentists the option of either installing a dental amalgam separator or sampling, and all of the facilities have chosen to install a separator. The dental facilities are required to submit annual certification that they are complying with best management practices (BMPs). NBC inspects each dental facility every ot her years, and these inspections are announced due to the nature of the dental business.
NBC has seen drastic loading reductions since implementation of this program. Influent mercury has been reduced by 57% (from 13.3 lbs in 2005 to 5.7 lbs in 2012) at t he Field’s Point treatment facility and by 53% (from 5.6 lbs in 2005 to 2.6 lbs in 2012) at the Bucklin Point treatment facility.

 The Northeast Ohio Regional Sewer District (NEORSD) in Cleveland, Ohio , has been addressing mercury issues since the mid

- 199 0s and has developed and implemented an ongoing Pollutant Minimization Program (PMP). Early on in the program, a numeric local limit to achieve the 1.3 ppt water quality criterion in NEORSD effluent was determined to be infeasible, and a narrative local li mit was adopted instead. This limit requires significant dischargers of mercury into the sewer system, including dental offices, to implement BMPs to minimize the amount of mercury discharged. In 2010, NEORSD received Great Lakes Restoration Initiative fun ding to reduce the amount of mercury emitted from its treatment plants. This funding was used to install amalgam separators in approximately 415 of the dental facilities in the NEORSD service area in an effort to reduce the amount of mercury in the NEORSD biosolids that are ultimately incinerated.
Due to NEORSD’s overall mercury reduction efforts, including amalgam separators at dental facilities, average annual influent mercury has decreased dramatically from 2005 to 2012 at is three treatment facilities: from 103 to 37 ng/L at the Westerly treatment plant, from 182 to 62 ng/L at the Southerly treatment plant, and from 150 to 36 ng/L at the Easterly treatment plant.

 Central Contra Costa Sanitary District (CCCSD) in Martinez, California , is part of the S an Francisco Bay Area regional watershed permit for its municipal wastewater dischargers to meet the Total Maximum Daily Load (TMDL) for mercury adopted by the San Francisco BaySection 5

– Dental Am algam Section 5.4

– Local Dental Amalgam Separator Programs

73 Regional Water Quality Control Board in 2006 and approved by EPA in 2008. The watershed permit requires that POTWs implement dental amalgam programs and that the programs meet specified performance criteria. CCCSD implemented its program in 2007 and as a result has seen a 74% reduction in its influent mercury, a 67% reduction in effluent mercury, and 77% reduction in its biosolids mercury.
The other Bay Area POTWs in the watershed permit have also seen reductions in their influent, effluent, and biosolids mercury levels. Each agency was allowed the fle xibility to design its own programs, and the dental amalgam separator programs are part of larger mercury reduction strategies employed by the POTWs.

 The Western Lake Superior Sanitary District (WLSSD) in Duluth, Minnesota , has had a very successful mercu ry source reduction program in place since the 1990s to meet the low mercury limits imposed by the Great Lakes Water Quality Initiative. WLSSD’s source control program includes dental amalgam separators and other industrial and residential control efforts. WLSSD’s dental amalgam separator program is voluntary, but all of its 60 dental offices, representing 100 dentists, have dental amalgam separators. This success was achieved through cooperation with the local dental society, and a 2003 local supplemental environmental improvement grant awarded to WLSSD and the Northeast DistrictDental Society allowed the purchase of dental amalgam separators for all of the dental facilities. Total mercury emissions from WLSSD facilities have dropped from 208.7 lbs in 1990 to 83 lbs in 2012.
Despite the lack of a federal rule, these POTWs have achieved nearly universal amalgam separator compliance with the dental offices in their service areas and mercury released into the environment has significantly decreased.
Response:
EPA appreciates the comment. EPA is working on proposed effluent guidelines to control wastewater containing dental amalgam wastes. EPA will examine the issues raised by the commenter in the context of that rulemaking.Section 5

– Dental Amalgam Section 5.5

– Economic Impacts on POTWs

74 Section 5.5

– Economic Impacts on POTWs

Comment Number: EPA

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– 4 Organization: National Association of Clean Water Agencies (NACWA) Commenter Name: Cynthia A. Finley Commenter Type: POTW Group

Comment Excerpt Text:
Dental Amalgam Separator Programs are Not Necessary fo r all POTWs
Some POTWs do not experience elevated mercury levels in their influent and have not needed to implement dental amalgam separator programs. While the EPA 2008 Health Services Industry Detailed Study for Dental Amalgam estimated costs of a national amalgam separator requirement for dental facilities, it did not estimate the cost for POTWs. Although NACWA has not seen the draft rule and does not know all of the details of EPA’s proposal, the cost to POTWs to set up and maintain a mandatory am algam separator program for all of the dentists in their service areas will be substantial:

 The City of Greensboro, North Carolina, has over 250 dentists, most of which are located in the service area of its 16 mgd treatment plant. This facility has only violated its 12 ppt mercury discharge limit five times out of 364 samples since 2005, with no violations since 2009. These violations occurred when total suspended solids were high or the POTW recorded high influent flows following heavy precipitation eve nts. The average mercury concentrations in the biosolids were 0.36 mg/kg in 2007 and have steadily decreased to 0.18 mg/kg in 2011, two orders of magnitude below the 40 CFR Part 503.13 Table 3 “high quality” biosolids mercury limit of 17 mg/kg. The removal rate for mercury at this facility is 98.2%.
The City of Greensboro estimates that it would need to hire at least one full

- time employee, at approximately $50,000 per year, to implement a mandatory dental amalgam separator program. The total effluent merc ury per year at Greensboro is 0.475 lbs. If half of this mercury is removed by an amalgam separator program, the cost to the City is over $200,000 per pound of mercury each year. This does not include the cost to the dentists.

 The Los Angeles County Sanitation Districts (LACSD) has 11 wastewater treatment plants. Three of these plants currently have effluent limits or performance goals for mercury, and those limits and goals are consistently met. LACSD’s largest facility, the J oint Water Pollution Control Plant (JWPCP), is one of the largest wastewater treatment plants in the world, processing approximately 280 mgd. From 2007 to 2011, effluent samples at JWPCP were below the detection concentration of 4 x 10

- 5 mg/L. The biosolid s from JWPCP had an average mercury concentration of 1.2 mg/kg, an order of magnitude below the 40 CFR Part 503.13 Table 3 “high quality” biosolids mercury limit of 17 mg/kg. Influent mercury loadings to JWPCP have steadily decreased from 4

- 5 lbs/day in th e late 1970s to approximately 0.5 lbs/day now.

LACSD estimates that it has 2,000

- 5,000 dental offices in its service area. Assuming 3,500 facilities, LACSD estimates total initial costs of $1.4 million to establish a mandatory amalgam separator program an d $4.4

- 6.0 million in annual costs, if each dental office is considered a SIU.Section 5

– Dental Amalgam Section 5.5

– Economic Impacts on POTWs

75 Even if a special DIU category is created, costs for this number of dentists will be significant, with little environmental benefit.

For these and other POTWs without elevated i nfluent mercury levels, the costs associated with establishing and maintaining a dental amalgam separator program will not be justified by the environmental benefits. These utilities should be able to prioritize their resources to address their most pressi ng environmental concerns.
Response:
EPA appreciates the comment. EPA is working on proposed effluent guidelines to control wastewater containing dental amalgam wastes. EPA will examine the issues raised by the commenter in the context of that rulemaki ng.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

7 6 Section 6

– Coalbed Methane (CBM)

Section 6.1

– Support to Delist CBM

Section 6.1.1 General Support to Delist CBM

Comment Number: EPA

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– 1 Organization: Independent Petroleum Association of America (IPAA) Commenter Name: Lee O. Fuller Commenter Type: Trade Association

Comment Excerpt Text:
These organizations support EPA in delisting the Coalbed Methane (CBM) Extraction subcategory from the Effluent Guidelines Plan. IPAA has addressed the issue of the benefits of developing an Effluent Limitation Guidelin e (ELG) for CBM produced water in past comments.
As stated previously, IPAA does not believe that a CBM ELG is an appropriate or necessary path for EPA to follow. Consequently, as IPAA has stated in the past, any judgment to proceed in an ELG development process should address certain key issues. Foremost among these are:
1. Whether EPA’s resources and efforts are justified by the ultimate environmental outcome;
2. Whether the current wastewater discharge permitting process would change appreciably; and

, 3. Whether the consequences of a specified ELG would adversely affect CBM production.
Response:
EPA thanks the commenter for their support. The responses to comment s in Section 6.1.2

, Section 6.1.3 , and Section 6.1.6 ; the Technical Development Document for the Coalbed Methane (CBM) Extraction Industry ; and the Economic Analysis for Existing and New Projects in the Coalbed Methane Industry provide informat ion on the rationale for EPA’s decision to delist the CBM extraction industry from the effluent guidelines plan. (The documents mentioned here are available at: http://water.epa.gov/scitech/wastetech/guide/oilandgas/upload/cbmttd2013.pdf and http://water.e pa.gov/scitech/wastetech/guide/oilandgas/upload/cbmea2013.pdf .)

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– 1 Organization: Independent Oil and Gas Association of West Virginia Commenter Name: Charlie Burd Commenter Type: Trade Association

Comment Excerpt Text:
IOGA members operate CBM wells and have firsthand experience with the water quality and economic issues addressed in EPA's proposed action and strongly support delisting the ELG for the CBM subcategory as unnecessary and economically unsupp ortable.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

77 Response:
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– 1 Organization: Pioneer Natural Resources USA, Inc. Commenter Name: Gretchen Kern Commenter Type: Industry

Comment Excerpt Text:
Concurrent with comments filed by the American Petroleum Institute (API), America's Natural Gas Alliance (ANGA), the American Exploration and Production Council (AXPC), the Colorado Oil and Gas Association (COGA), the Independent Petroleum Association of A merica (IPAA), the Petroleum Association of Wyoming (PAW), and the Western Energy Alliance (WEA), Pioneer supports EPA in delisting the Coa lbed Methane (CBM) Extraction subcategory from the Effluent Guidelines Plan.
Response:
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– 1 Organization: Ohio Oil and Gas Association Commenter Name: Ryan D. Elliott Commenter Type: Trade Association

Comment Excerpt Text:
The Association supports U.S. EPA’s proposal to delis t the CBM subcategory from the Effluent Guidelines Plan as the development of an Effluent Limitation Guideline (ELG) for CBM produced water does not present a justified case for action. In addition to the comments presented herein, the Association supports those comments submitted separately by its members and the comments submitted by the Independent Petroleum Association of America (IPAA).
The Development of an Effluent Limitation Guideline for CBM Produced Water is Unnecessary and Unwarranted

The Assoc iation does not believe that an ELG for CBM produced water is an appropriate or necessary path to follow. Foremost among the reasons for delisting the CBM subcategory are:
1. The development of an ELG for CBM produced water is unnecessary given the exist ing federal and Ohio wastewater regulatory programs that adequately protect the environment;
2. The imposition of additional wastewater discharge requirements would further thwart the economic viability of CBM projects.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

78 3. Wastewater treatment and disp osal technologies, implemented in accordance with federal and state regulatory programs, continue to improve while less wastewater will be produced due to the declining production of coalbed methane.
Response:
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– 5 Organization: Ohio Oil and Gas Association Commenter Name: Ryan D. Elliott Commenter Type: Trade Association

Comment Excerpt Text:

The Association’s members are committed to the proper management and disposal of wastewaters produced by their oil and natural gas exploration and production operations. In this connection, the Association posits that the development of an ELG for CBM produced wastewater is unnecessary and unwar ranted given the existing federal and Ohio wastewater regulatory programs that adequately protect the environment, the declining economic viability of the CBM industry, and the unreasonable burden such an ELG would impose on producers.
Accordingly, the As sociation strongly supports U.S. EPA’s decision to delist the CBM subcategory from the Effluent Guidelines Plan.
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– 1 Organization: Coalbed Methane Asso ciation of Alabama Commenter Name: Dennis Lathem Commenter Type: Trade Association

Comment Excerpt Text:
Our members support the EPA’s decision to delist the Coalbed Methane Extraction subcategory. In addition to the economic issues related to the curre nt price/production environment, the CMAA believes it would be problematic for the EPA to develop an ELG that could address the vast differences between the various coalbed methane production basins that did not also have a significant harmful effect on pr oduction in many basins, like the Black Warrior Basin of Alabama. The result could be losses to thousands of jobs and millions in personal income as well as local, state, and federal taxes.
The EPA proposal to delist the Coalbed Methane Extraction subcate gory from the effluent guidelines plan is prudent and justified because of the adverse economic impact to this particularSection 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

79 industry segment and the fact that state regulation using Best Professional Judgment has proven effective to accomplish the same goals as the ELG.
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- 1.Section 6

– Coalbed Methane (CBM) Section 6.1

– Suppor t to Delist CBM

80 Section 6.1.2 Change in Economics of Industry

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– 5 Organization: Independent Petroleum Association of America (IPAA) Commenter Name: Lee O. Fulle r Commenter Type: Trade Association

Comment Excerpt Text:
EPA has now released its Economic Analysis for Existing and New Projects in the C oalbed Methane Industry report, published on July 29, 2013. Its conclusions state:

“ Overall, this analysis shows that based on the 2008 CBM survey data and a 2010 data review, a large fraction of existing CBM projects are no longer economically viable, independent of the wastewater discharge requirements considered in this analysis. Specifically, EPA estimated that

a pproximately 25 percent of existing CBM projects either closed immediately in 2008 or were

non

- operational by 2010. EPA expects that an additional 43 percent of the existing CBM projects reported in 2008 were shut down by 2012. The deteriorating economic v iability of these projects results largely from declining natural gas prices since the time of the CBM survey.
For the analysis of the impact of wastewater discharge requirements on existing projects, EPA focused on the 112 CBM projects that were found ec onomically viable out of the 148 total projects given the 23 immediate baseline closures estimated through the 2008 assessment and 13 projects found non

- operational in 2010. Of these 112 CBM projects, EPA found that the wastewater technology options consid ered in this analysis would lead to immediate or earlier shutdown of CBM projects and losses in gas production than would occur in the absence of technology costs. Specifically, EPA estimated that under the IX1 treatment option, 24 percent of the 112 projects estimated to be economically viable in the baseline would shut down immediately, with an additional 26 to 33 percent experiencing losses in production life. Under the UI2 disposal option, 27 percent of the 112 economically viable projects would s hut down immediately, with an additional 38 to 44 percent experiencing losses in production life. In general, because UI disposal costs are higher than IX treatment costs, the loss in production life and quantity is greater under the UI option than that un der the IX treatment option.
Further, this analysis found that new CBM projects in most CBM gas basins are not economically viable at current natural gas prices, independent of the wastewater discharge requirements considered in this analysis. For most ba sins and analysis cases, natural gas prices need to increase substantially above currently low levels before new CBM projects become economically viable. If CBM developers seek a level of financial return indicated to EPA by CBM industry representatives (1 7 percent), projects are not currently viable in any of the CBM basins analyzed under a range of natural gas price growth cases. Using the rate of return of 17 percent indicated by CBM project developers, new projects would not be viable until 2018

– 2049 with most new projects delayed by at least 30 years. For the 7

- percent required rate of return case, CBM projects appear currently viable in only three of the seven discharging CBM basins, and these instances most often occur under higher natural gas price growth cases.
Accounting for costs of the wastewater discharge requirements considered in this analysis generally lengthens the delay until new CBM projects would become economically viable.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

81 Under either the IX treatment or UI disposal options, additiona l delays before projects would be economically viable

– beyond the delays already discussed above for new projects to become viable even without such requirements

– range from zero years to over 20 years. For the IX
treatment option, using industry’s indic ated rate of return of 17 percent, most model projects experience an additional delay of two years. Under the more expensive UI disposal option, additional delays range from 1 to more than 20 years. Using the 17

- percent rate of return, most projects experi ence a delay of over 20 years. In summary, the addition of wastewater discharge requirements would substantially burden the economic/financial performance of new CBM projects, and would further delay project viability by a significant number of years for m ost projects, regardless of the natural gas growth cases or the financial return sought by CBM project developers.
Overall, EPA found that applying wastewater discharge requirements would impose significant burdens in terms of immediate or early shutdown and loss of gas production from the projects that remained economically viable at 2008 and 2010. For new projects, EPA reached the following findings: (1) CBM projects do not generally appear economically viable at present, and for many development opportu nities, for substantial periods into the future, and (2) discharge requirements would further delay these projects’ economic viability.
Given these findings for both existing and new sources, EPA’s judgment at this time is that it should not move forward with additional regulation of wastewater discharges from CBM projects. Pending changes in CBM gas production economics, and increased volume of CBM activity and wastewater discharges, and possible changes in the available wastewater management approaches a nd/or associated costs, EPA may revisit this decision in future years. ”
EPA’s conclusions reflect several pertinent realities. First, the conclusions reflect the shift in American natural gas from CBM. This change has made the development of CBM a less likely choice. And, as EPA concludes, the addition of the costly wastewater treatment requirements EPA envisioned as part of its ELG development would further thwart the use of this natural

resource. Second, the judgments are consistent with the reality th at less wastewater will be created because of reduced development of CBM. EPA describes the reality of CBM wastewater production in its document, Technical Development Document for the Coalbed Methane (CBM) Extraction Industry (April 2013), where it explai ns the nature of CBM wastewater:

“ The typical lifespan of a CBM well is between five and 15 years, with maximum methane production often achieved after one to six months of water removal (Horsley & Witten, 2001). CBM wells go through the following product ion stages (De Bruin et al., 2001):

 An early stage, in which large volumes of formation water are pumped from the seam to reduce the underground pressure and encourage the natural gas to release from the coal

seam.

 A stable stage, in which the amount of natural gas produced from the well increases as the amount of formation water pumped from the coal seam decreases.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

82  A late stage, in which the amount of gas produced declines and the amount of formation water pumped from the coal seam remains low.
Figure 3

- 1 generalizes the gas and water production curves for CBM wells.

Figure 3

- 1. Generalized Gas and Water Production Curves for CBM Wells
This production profile is very different from conventional gas or oil production. Most conventional gas wells produc e relatively little water throughout their lives, although some increase in water production might occur as the well ages. Oil wells, or those which produce both gas and water, tend to produce little water at first, with production of water rising as the w ell ages. A frequently used model of the production from conventional oil or oil and gas wells
assumes a constant decline rate for oil with an inverse growth rate in water, achieving a constant production of total fluid over time (see, for example, Appendi x C in U.S. EPA, 1996). ”
Third, it makes its judgments on more realistic prices of natural gas. The earlier CBM analyses were based on natural gas prices that existed for a short period of time and no analysts expect that future prices will return to these levels in the foreseeable future. EPA includes the following graphic in its economic analysis to demonstrate the nature of these price shifts.
Response:

As described in the Economic Analysis for Existing and New Projects in the Coalbed Methane Industry

, a large fraction of CBM projects existing in 2008 are no longer economically viable, independent of potential new effluent guidelines requirements. EPA estimated that approximately 25 percent of existing CBM projects either closed immediately in 2008 or w ere

non

- operational by 2010. EPA also estimated that an additional 43 percent of projects discharging in 2008 were shut down by 2012. The deteriorating economic viability of the industry is largely due to the declining price of natural gas from 2008 to 201 2. In addition, while the U.S. Energy Information Administration (EIA) projects that gas prices will rise steadily over the next few decades, the EIA does not expect prices to reach the 2008 price level or above (on an inflation

- adjusted basis) until 2040. See page 3 in EPA’s Economic Analysis for Existing andSection 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

83 New Projects in the Coalbed Methane Industry demonstrating the projections of natural gas prices.
When new discharge methods or treatment technologies were considered, EPA found that potential new eff

luent guidelines requirements would lead to additional and earlier closures of CBM projects, as well as losses in gas production.
EPA also considered whether new CBM projects would be developed at current natural gas prices in the absence of potential new effluent guidelines requirements. EPA found that natural gas prices must increase substantially over current prices before CBM projects would become economically viable. The Economic Analysis for Existing and New Projects in the Coalbed Methane Industry do cument provides more information about EPA’s analysis.

Comment Number: EPA

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– 7 Organization: Independent Petroleum Association of America (IPAA) Commenter Name: Lee O. Fuller Commenter Type: Trade Association

Comment Excerpt Text:
In the end, EPA correctly concludes that many CBM projects are no longer economically feasible considering current declines in natural gas prices. The economic review of various treatment technologies demonstrates that additional technology costs w ould further reduce feasibility of existing and future projects. We concur with this view and strongly support the decision to delist the Coalbed Methane (CBM) Extraction subcategory from the Effluent Guidelines Plan.
Response:
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– 1 Organization: Western Energy Alliance Commenter Name: Kathleen M. Sgamma Commenter Type: Trade Association

Comment Excerpt Text:
Since 2007, industry has supplied CBM data for vari ous EPA surveys and reviews as referenced in the proposed 2012 Effluent Guidelines Plan. We provided additional data to EPA’s Scientific Advisory Board in a May 29, 2013 letter along with several other oil and gas trade organizations. This information demo nstrated that the CBM industry has declined since the original surveys conducted by EPA. The Economic Analysis for Existing and New Projects in the Coalbed Methane Industry report published by EPA on July 29, 2013 correctly concludes that many CBM projects are no longer economically feasible considering current declines in natural gas prices.Section 6

– Coalbed Methane (CBM) Sec tion 6.1

– Support to Delist CBM

84 The economic review of various water treatment technologies demonstrates that additional technology costs would further reduce feasibility of existing and future proje cts.
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– 3 Organization: Montana Petroleum Association, Inc. Commenter Name: David Galt Commenter Type: Trade Association

Comment Excerpt Text:

Final ly, in the Economic Analysis for Existing and New Projects in the Coalbed Methane Industry report, published on July 29, 2013 by the EPA, the agency correctly concludes that many CBM projects are no longer economically feasible considering current declines in natural gas prices. The economic review of various treatment technologies demonstrates that additional technology costs would further reduce feasibility of existing and future projects.
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– 2 Organization: Tuscaloosa County Commission Commenter Name: W. Hardy McCollum Commenter Type: Other

Comment Excerpt Text:
I am keenly aware of the economics of natural gas production from coal. I see the impact of price and production changes on a monthly basis. Unfortunately, we are in a period of low natural gas prices that is projected to last for many, many years. This low price makes it very difficult for the operators in Tuscaloosa County to continue to operate their wells, much less drill new wells.
I support your proposal to delist the Coalbed Methane Extraction subcategory from the effluent guidelines plan. Any additional costs associated with new and unnecessary regulatory burdens could place the future of our homegrown industry in great jeopardy.
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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

85 Comment Number: EPA

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– 3 Organization: Independent Oil and Gas Association of West Virginia Commenter Name: Charlie Burd Commenter Type: Trade Association

Comment Excerpt Text:

ELGs are ill

- suited to CBM operations and would impose unnecessary and excessive regulations that would increase costs for operations that may not be economically viable. Indeed, CBM development is in decline, as recognized by EPA.

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– 3 Organization: Pioneer Natural Resources USA, Inc. Commenter Name: Gretchen Kern Commenter Type: Industry

Com ment Excerpt Text:

The Economic Analysis for Existing and New Projects in the Coalbed Methane Industry report published by EPA on July 29, 2013 correctly concludes that many CBM projects are no longer economically feasible considering current declines in natural gas prices. The economic review of various treatment technologies demonstrates that additional technology costs would further reduce feasibility of existing and future projects.
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– 3 Organization: Ohio Oil and Gas Association Commenter Name: Ryan D. Elliott Commenter Type: Trade Association

Comment Excerpt Text:
Second, the addition of costly wastewater treatment requirements would further thw art the economic viability of the CBM projects. In its Economic Analysis for Existing and New Projects in the Coalbed Methane Industry report, U.S. EPA concluded that, based on 2008 survey data and a 2010 data review, a large fraction of existing CBM proje cts are no longer economically viable, independent of the wastewater discharge requirements considered in the analysis. EPA also found that new CBM projects do not generally appear economically viable at present.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

86 Notably, U.S. EPA found that applying waste water discharge requirements to the industry would impose significant burdens on projects that remained economically viable in 2008 and 2010, and would further delay the economic viability of any new CBM projects.
Accordingly. given the findings for both existing and new projects, U.S. EPA concluded that it should not move forward with additional regulation of wastewater discharges from CBM projects.
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– 2 Organization: WPX Energy, Inc. Commenter Name: Gretchen Kohler Commenter Type: Industry

Comment Excerpt Text:
Since 2007, WPX Energy has supplied CBM data for various EPA surveys and reviews as referenced in the proposed 2012 Effluent Guidelines Pla n. As part of an industry

- led coalition, we provided additional data to EPA's Scientific Advisory Board in a May 29,2013 letter. This information demonstrated that the CBM industry has declined over time since the original surveys conducted by EPA. The Economic Analysis for Existing and New Projects in the Coalbed Methane IndustiJ' report published by EPA on July 29, 2013 correctly concludes that many CBM projects are no longer economically feasible based on cmTent declines in natural gas prices, even w ithout consideration to the impact of additional burdens from the ELG process. In fact, the economic review of various treatment technologies demonstrates that additional teclmology costs would fmiher reduce feasibility of existing and future projects.

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– 1 Organization: American Petroleum Institute Commenter Name: Amy Emmert Commenter Type: Trade Association

Comment Excerpt Text:
EPA has correctly re cognized that CBM production is in decline. The Economic Analysis for Existing and New Projects in the Coalbed Methane Industry report (EPA, 2013) correctly concluded that many CBM projects are not economically feasible simply due to a decline in natural gas prices from over $10/mcf in 2007 to approximately $4/mcf today. As shown in theSection 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

87 economic review of various treatment technologies, additional technology costs would further reduce the feasibility of existing and future projects.
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– 1 Organization: Enervest Operating, LLC Commenter Name: Jim Pritt & Barry Lay Commenter Type: Industry

Comment Excerpt Text:
Enervest Operating, LLC (Enervest) supports the delisting proposal by the EPA as it relates to its plan to develop effluent limitations guidelines and standards (ELGs) for the discharge of wastewater for the CBM Extraction Industry.
Enervest agrees with EPA's recent findings that the natural gas in dustry has changed since the EPA conducted a detailed study on effluent limit guidelines (ELG 's) for CBM

- related water discharges . We also agree that declining industry economics result in potential measurable and significant economic impacts as Enerve st' s CBM operations are currently at risk as a result of those declining industry economics. We are experiencing significant negative economic impacts as a result of low gas prices and future prices are expected to be low for years to come.

Enervest has b een and is currently in compliance with all state issued permits in regard to water disposal and we will always continue to do so, but we also feel that additional water disposal cost will render our operations completely non

- economic and we will be forced to close operations if any additional costs are incurred. We have a number of employees that rely on our operations for their livelihood and we are making every effort possible to make sure these facilities continue to provide for them.
Therefore, we comp letely agree with the recent EPA decision to delist further development of effluent limitation guidelines.
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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

88 Comment Number: EPA

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– 1 Organization: Petroleum Association of Wyoming Commenter Name: John Robitaille Commenter Type: Trade Association

Comment Excerpt Text:
Since 2007, industry has supplied CBM data for various EPA surveys and reviews as referenced in the proposed 2012 Effluent Guidelines Plan . PAW members prov ided additional data to EPA's Scientific Advisory Board in a May 29, 2013 letter . This information demonstrated that the CBM industry has declined since the original surveys conducted by EPA. The Economic Analysis for Existing and New Projects in the Coal bed Methane Industry report published by EPA on July 29, 2013 correctly concludes that many CBM projects are no longer economically feasible considering current declines in natural gas prices. The economic review of various
treatment technologies demonstra tes that additional technology costs would further reduce feasibility of existing and future projects.
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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

89 Section 6.1.3 Effectiveness of State Regulation

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Comment Excerpt Text:
First, it is important to recognize that the National Pollutant Discharge Elimination System (NPDES) permitting process is structured to delegate the actual permitting process to state regulatory agencies. Second, while the current Oil and Gas Extraction ELG does not specifically address CBM, this does not mean that CBM wastewater discharges are unregulat ed or unpermitted. Instead, the same state regulatory agencies that would be delegated NPDES authority under a new CBM ELG are developing discharge permits under a fully sanctioned permitting approach

– Best Professional Judgment (BPJ). EPA characterizes B PJ as follows:
In the absence of effluent limitation guidelines for a facility category, permit writers establish technology

- based controls using their Best Professional Judgement. In essence, the permit writer undertakes an effluent guideline

- type analy sis for a single facility. The permit writer will use information such as permit limits from similar facilities using similar treatment technology, performance data from actual operating facilities, and scientific literature. Best Professional Judgement ma y not be used in lieu of existing effluent guidelines. These guidelines apply only to direct dischargers of wastewater.
Given that BPJ effectively develops ELG

- like analyses for individual dischargers, the current state programs have in place a process th at evaluates the specific circumstances that each situation raises

– a more comprehensive approach than an ELG provides. Consequently, even if EPA were to develop a CBM ELG with extensive subcategorization, it would not produce as flexible or diverse a sys tem as the current one.
Response:
EPA agrees with commenters that CBM discharges to surface water require an NPDES permit. The Clean Water Act prohibits discharges of pollutants from point sources, such as CBM operations, into a water of the United States, except as authorized by the Act. 33 U.S.C. § 1311(a). Section 402 authorizes such discharges under an NPDES permit. 33 U.S.C. § 1342(a). EPA's regulations provide that NPDES permits must include technology

- based limitations as a minimum floor

- either based on a nationally applicable effluent limitations guideline (ELG) or, where EPA has not promulgated an ELG for the industrial category, based upon the permit writer's Best Professional Judgment (BPJ). 40 CFR Part 125.3. Consistent with EPA regu lations, NPDES permit writers use their best professional judgment to establish limits for CBM pollutant discharges on a case

- by

- case basis. Appendix A of EPA’s 2010 Coalbed Methane Extraction: Detailed Study Report summarizes how the six states with the m ajority of CBM discharges (Alabama, Colorado, Montana, Pennsylvania, West Virginia, and Wyoming) authorized those discharges as of 2009 ( http://water.epa.gov/scitech/wastetech/guide/304m/upload/cbm_report_2011.pdf ).Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

90 Comment Number: EPA

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Comment Excerpt Text:
Fourth, it is important to reiterate that where CBM projects are deve loped, they are developed in concert with state regulatory agencies to employ wastewater management technologies that have protected the environment.
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Comment Excerpt Text:
Finally, a delisting of CBM does not mean the industry will go unregulated. It is important to emphasize that industry e ffluent handling is currently regulated by states, and EPA’s decision to delist CBM will not affect or lessen state regulation.
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– 1 Organization: Mont ana Petroleum Association, Inc Commenter Name: David Galt Commenter Type: Trade Association

Comment Excerpt Text:

The Montana Petroleum Association does not believe that a Coal Bed Methane Effluent Limitation Guideline (ELG) is an appropriate or necessa ry path for EPA to follow, and supports the delisting of CBM extraction from the Effluent Guidelines Plan.
Given that Best Professional Judgment effectively develops ELG

- like analyses for individual dischargers, the current state programs have a process t hat evaluates the specific circumstances that each situation raises, with more flexibility than an ELG provides.
Response:Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

91 See response to EPA

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– 1 Organization: Tuscaloosa County Commission Commenter Name: W. Hardy McCollum Commenter Type: Other

Comment Excerpt Text:
Our county government, along with the State of Alabama and its agencies, have worked with the coalbed methane industry over the decades to promote the development o f this resource. At the same time, we insist that the related social and environmental impacts be as minimal as possible. I believe we have achieved all these goals through the work of the Alabama Department of Environmental Management (ADEM) and the State Oil & Gas Board of Alabama (OGB).
Response:
See response to EPA

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– 2 Organization: Independent Oil and Gas Association of West Virginia Commenter Name: Charlie Burd Commenter Type: Trade Association

Comment Excerpt Text:
The factual arguments and studies cited by IPAA demonstrate that ELGs for this subcategory of the Oil and Gas Extraction Point Source Category are not necessary to adequately protect the environment. The technolog y

- based controls contained in individual National Pollution Discharge Elimination System ("NPDES") permits, accounting for case

- by

- case circumstances and based on Best Professional Judgment, are sufficient to ensure protection of the environment from disch arges associated with CBM operations.
Response:
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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

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– 2 Organization: Ohio Oil and Gas Association Commenter Name: Ryan D. Elliott Commenter Type: Trade Association

Comment Excerpt Text:
First, it is important to recognize that the Clean Water Act and its implementing regulations, in particular the National Pollution Discharge Elimination System (NPDES) permitting program, address the discharge of pollutants into the country’s national waterways.
While the current Oil and Gas Extraction ELG does not specifically address CBM, this does not mean that CBM wastewater discharges are unregulated or unpermitted. Instead, Ohio EPA, like regulatory agencies in many other states delegated NPDES authority, develops discharge permits under a Best Professional Judgment (BPJ) permitting approach. These discharge permits specify effluent limitations and require technology based controls to ensure protection of human health and t he environment. In addition to the imposition of additional discharge requirements with no real environmental benefit, an ELG for CBM wastewater would likely complicate a state’s discharge permit process and subject the entire NPDES permit program to chall enge. Given, the existence and effectiveness of the federal and state wastewater programs already in place, the Association believes that the development of an ELG for CBM wastewater is unnecessary and would provide no discernible environmental benefit.

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– 1 Organization: WPX Energy, Inc. Commenter Name: Gretchen Kohler Commenter Type: Industry

Comment Excerpt Text:
WPX Energy believes that CBM discharges are effectively regulated across the country at the Federal, State and Local level and that by delisting CBM from the effluent guidelines plan, EPA will not diminish or remove current regulation or oversight of the activity.
Response:
See resp onse to EPA

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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

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– 3 Organization: American Petroleum Institute Commenter Name: Amy Emmert Commenter Type: Trade Association

Comment Excerpt Text:
Effective regulation of discharges. Currently, CBM discharges are effectively regulated at the Federal, State, and Local levels. De

- listing CBM from 2012 Effluent Guidelines Plan will not reduce or remove current regulation and oversight of the industry.
Response:
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- 2.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

94 Section 6.1.4 Environmental Benefits

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– 4 Organization: Independent Petroleum Association of America (IPAA) Commenter Name: Lee O. Fuller Commenter Type: Trade Association

Comment Excerp t Text:
Overall, the potential ELG process being considered does not present a strong case for action.
The current BPJ approach addresses the technology and environmental issues that arise related to CBM production. There is no apparent significant environmental benefit associated with developing an ELG but there are potential downsides.
Response:
EPA agrees that an ELG is not warranted for the CBM extraction industry at this time. However, EPA disagrees with the assertion that there would be no s ignificant environmental benefit to developing an ELG

-- EPA's decision to discontinue the rulemaking for CBM was not based on a lack of benefit associated with such regulation, but rather, on the lack of an economically achievable technology to address di scharges from this industrial subcategory as a whole, as discussed in Technical Development Document for the Coalbed Methane (CBM) Extraction Industry (EPA

- 820

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- 009). EPA's regulations require that, in the absence of an applicable ELG, permit writers include technology

- based limitations in NPDES permits on a

case

- by

- case Best Professional Judgment basis. 40 CFR 125.3(c)(2). As the commenter notes, permit writers are issuing BPJ

- based permits for CBM. Although EPA was not able to identify a
treatment technology that would be economically achievable for the industry as a whole on a national basis, permitting authorities employing best professional judgment may determine that such technologies are achievable on a case

- by

- case basis. Thus, BPJ

- based perm itting may be a more appropriate and effective tool than nationally applicable effluent guidelines for addressing CBM discharges.

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– 2 Organization: Montana Petroleum Association, Inc. Commenter Name: David Galt Commenter Type: Trade Association

Comment Excerpt Text:
Furthermore, there is no apparent significant environmental benefit associated with developing an ELG, however, there are disadvantages.
Response:
See the response to EPA

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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

95 Section 6.1.5 Unique Characteristics of CBM Production

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– 3 Organization: Independent Petroleum Association of America (IPAA) Commenter Name: Lee O. Fuller Commenter Type: Trade Association

Comment Excerpt Text:
Similarly, rather than improving the permitting process, the ELG could actually worsen it. An ELG for CBM production differs significantly from most of the industrial ELGs that have been developed. The basic purpose of an ELG is to provide wastewater trea tment consistency between similar industrial operations across the nation. However, there are critical distinctions between typical industrial operations and CBM production. Most industrial operations acquire water of some quality for various uses within t he facility

– cooling water, water for steam with the attendant condensate, water for various process operations. In the course of the industrial processing, water is contaminated in predictable ways. Correspondingly, the treatment options are relatively s traightforward. CBM production does not follow this model. CBM produced water comes from the coalbed formation and there is no ability to alter that initial water quality.
Consequently, the treatment options are defined by the nature of the water source

– with the potential that the location of the production may provide for beneficial uses.
Because an ELG is based on existing technologies applied to existing operations, an ELG cannot anticipate the appropriate technologies for future developments. Under such circumstances the state agencies would need to turn again to BPJ analyses and permits. However, because an ELG for CBM would exist, the state would now have to justify the use of BPJ and the permit process could be challenged

– delaying development fo r no environmental benefit.
Response:
EPA acknowledges that the CBM extraction industry differs from many, but not all, other industrial operations in that CBM wastewater originates in the coal seam and must be removed as part of the extraction process. In addition, EPA recognizes that the vol ume and characteristics of CBM produced water can vary by well location and life stage. Section 3 of the Technical Development Document for the Coalbed Methane (CBM) Extraction Industry describes the unique characteristics of this industry. EPA notes, ho wever, that a certain amount of variability is expected across all industries for which EPA develops and has developed ELGs. In that sense, the CBM extraction industry is not especially unique. Because ELGs are meant to be national standards, EPA takes g reat care to collect as much comprehensive characterization data as possible before setting ELGs. This process includes collecting technical, environmental, and financial data to ensure that EPA properly characterizes the industry. Moreover, while acknow ledging some variability in the wastewater due to differences in the coal seams, EPA notes that, in general, the primary pollutant of concern in CBM wastewaters that requires control is total dissolved solids (TDS). Both within and outside the industry, t here are documented technologies that are capable of treating TDS. However, as explained elsewhere in these responses to comments, EPA has been unable to identify an economically achievable technologySection 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

96 for controlling discharges from the CBM extraction ind ustry as a whole, and it is therefore not undertaking an effluent guidelines rulemaking for the CBM extraction industry at this time.
EPA notes that although ELGs are technology

- based, they do not mandate the use of specific technologies. Dischargers are required to meet the limits set in the ELGs.Section 6

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– Support to Delist CBM

97 Section 6.1.6 Decline in Industry and Wastewater Production

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– 2 Organization: Western Energy Alliance Commenter Name: Kathleen M. Sgamma Commenter Type: Trade Association

Comment Excerpt Text:
We appreciate that EPA recognizes that CBM production is in decline. The administrative record documents declines in three major CBM producing areas

– Black Warrior, Raton, and Powder River Basins. The declines represent both water discharge and drilling. There are more plug and abandon permits issued in the Powder River Basin than permits to drill.
There are no rigs operating in the Raton Basin and very few permits have been issued in the Black Warrior Basin.
Response:
EPA agree s that CBM production had declined since the 2007 and 2008 data collection activities. As described in the Technical Development Document for the Coalbed Methane (CBM) Extraction Industry, the typical lifespan of a CBM well is between five and 15 years and the maximum volumes of water are produced in the early years. In addition, gas production from CBM wells has declined as production has shifted to other unconventional gas sources. EPA reviewed changes to the operating status of CBM projects, which showed that approximately 10 percent of the projects discharging water in 2008 either no longer operated or no longer discharged water as of 2010. Based on available information, EPA expects this trend to continue.

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– 1 Organization: CONSOL Energy, Inc. Commenter Name: Carrie B. Crumpton Commenter Type: Industry

Comment Excerpt Text:
CONSOL is in support of the Environmental Protection Agency's finding in the Preliminary 2012 Plan and its proposal to delist from the effluent guidelines plan and discontinue the rulemaking for the Coalbed Methane Extraction industry, based on the declining prevalence of the industry, due in large part to the increased extraction of natural gas from other sources.
Response:
See respon se to EPA

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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

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– 2 Organization: Pioneer Natural Resources USA, Inc. Commenter Name: Gretchen Kern Commenter Type: Industry

Comment Excerpt Text:
As the trade groups' mentioned above highlight in their comments to this notice and Pioneer would like to reiterate, since 2007, industry has supplied CBM data for various EPA surveys and reviews as referenced in the proposed 2012 Effluent Guidelines Plan. Industry has provided additional dat a to EPA's Scientific Advisory Board in a May 29, 2013 letter. This information demonstrated that the CBM industry has declined since the original surveys conducted by EPA.
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– 4 Organization: Pioneer Natural Resources USA, Inc. Commenter Name: Gretchen Kern Commenter Type: Industry

Comment Excerpt Text:
Pioneer appreciates that EPA recognizes that CBM production is in decline. Again, as the trades'
po int out and Pioneer would like to emphasize, the administrative record has documents that demonstrate declines in the 3 major CBM producing areas

- Black Warrior, Raton, and Powder River Basins. The declines represent both water discharge and drilling. The re are more plug and abandon permits issued in the Powder than permits to drill. No rigs are operating in the Raton and very few permits have been issued in Black Warrior. Pioneer can speak to this decline first hand in our Raton operations.

Therefore, Pio neer fully supports EPA in delisting the Coalbed Methane (CBM) Extraction subcategory from the Effluent Guidelines Plan.
Response:
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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

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– 4 Organization: Ohio Oil and Gas Association Commenter Name: Ryan D. Elliott Commenter Type: Trade Association

Comment Excerpt Text:
Finally, the impetus of developing an ELG for CBM wastewater has diminished since U.S. EPA first proposed adding the CBM category to the Effluent Guidelines Program in 2008 due to a substantial reduction in volume of wastewater. U.S. EPA describes the reality of CBM wastewater production, due in large part to the decline in the prevalence of the industry, in document, Technical Development Document for the Coalbed Methane Extraction Industry (April 2013). With respect to natural gas producers engaged in CBM operations, most of the wastewater is either immediately disposed of via underground injection, or recycled and reused and then disposed of via u nderground injection. The Association also wishes to highlight that its members actively work with state regulatory industries in developing best management practices that protect the environment and preserve the natural resources where they operate.

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– 3 Organization: WPX Energy, Inc. Commenter Name: Gretchen Kohler Commenter Type: Industry

Comment Excerpt Text:
We appreciate that EPA recognizes CBM production is in decline. The administrative record has documents that demonstrate declines in the 3 major CBM producing areas

- Black Warrior, Raton, and Powder River Basins. The declines represent both water discharge rates and drilling activity. There ar e more plug and abandon permits issued in the Powder River Basin than permits to drill. No rigs are operating in the Raton and very few permits have been issued in Black Warrior.
As one of the largest producers in the Powder River Basin, WPX Energy can speak directly to these declines as they relate to our operations. At the time of EPA's ELG surveys in 2008, WPXX Energy operated 4,700 producing wells and experienced peak water pr oduction of approximately 350,000 bbls/day. In 2013, on the other hand, WPX Energy operates only 2,800 wells and has plugged and abandoned approximately 1,720 wells, with an average water production of 230,000 bbls/day.Section 6

– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

100 Response:
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– 2 Organization: American Petroleum Institute Commenter Name: Amy Emmert Commenter Type: Trade Association

Comment Excerpt Text:
Field data confirms EPA's analysis. In May 2013, industry provided additional data to EPA's Science Advisory Board which confirmed the CBM projects have declined even further than when EPA conducted its initial surveys. Documents in the record evidence decline both drilling and water discha rge in the 3 major CBM production areas (the Black Warrior, Raton, and Powder River Basins). No rigs are currently operating in the Raton, and few permits have been issued in Black Warrior. In the Powder River, the number of plug and abandon permits greatl y exceeds the number of permits to drill.
Response:
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– 2 Organization: Petroleum Association of Wyoming Commenter Name: John Robitaille Commenter Type: Trade Asso ciation

Comment Excerpt Text:
We appreciate that EPA recognizes that CBM production is in decline. The administrative record has documents that demonstrate declines in the 3 major CBM producing areas

- Black Warrior, Raton, and Powder River Basins. The declines represent both water discharge and drilling. There are more plug and abandon permits issued in the Powder River Basin than permits to drill. PAW appreciates and supports the delisting of the CBM Extraction subcategory in EPA's Preliminary 2012 Eff luent Guidelines Program Plan.
Response:
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– Coalbed Methane (CBM) Section 6.1

– Support to Delist CBM

101 Section 6.1.7 Other Support to Delist CBM

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– 4 Organization: Independent Oil and Gas Association of West Virginia Commenter Name: Charlie Burd Commenter Type: Trade Association

Comment Excerpt Text:
The Oil and Gas Extraction Point Source Category regulations are currently found at 40 C.F.R. Part 435. The regulations are divided into various subcategories (e.g., offshore, onshore, coastal). EPA has added to and revised these subcategories over the years and the industry sector as a whole is heavily regulated. Section 304(b) of the Clean Water Act sets out procedures for "adopting or revising" ELGs and grants EPA broad authority to make changes within the broader sector. 33 U.S.C. § 1314(b). While various sectors of the oil and gas extraction point source category are regulated, there are subcategories within the larger category that do not have specific ELGs. It is within EPA's juri sdiction and authority to evaluate and review whether regulation of particular subcategories is warranted or justified. EPA's process for updating ELGs for a subcategory within an existing category of sources is entirely different than proposing for the fi rst time an entirely new category of sources to be governed by ELGs. EPA's discretion to review ELGs within an existing source category is different than its discretion to propose ELGs for a new category of industrial sources. Subjecting EPA to the require ments and timelines associated with promulgating ELGs for entirely new categories every time it seeks to revise an ELG for an existing source category would create a tremendous disincentive to revise and update existing ELGs.
Response:
EPA agrees that th at the CBM extraction industry could potentially be identified as a new subcategory of 40 CFR Part 435 pursuant to EPA's discretion to revise ELGs for existing industrial categories under CWA section 304(b). However, for the reasons outlined in the Techni cal Development Document for the Coalbed Methane (CBM) Extraction Industry and the Economic Analysis for Existing and New Projects in the Coalbed Methane Industry , EPA has decided not to establish effluent guidelines for the CBM extraction industry at this time, and is thus delisting the CBM extraction industry from the 304(m) plan and is not pursuing a rulemaking for the industry at this time.
EPA agrees with the commenter that the Agency has discretion as to whether to revise the Oil and Gas ELG to addres s discharges from the CBM extraction industry. Although Section 304(m)(1)(C) requires EPA to establish a schedule for the promulgation of ELGs for new "categories of sources" not subject to an ELG, EPA notes that here, the oil and gas industrial category at issue is already subject to the ELGs at Part 435

- and therefore the requirements found in section 304(m)(1)(C) do not apply to the CBM extraction industry. EPA does not interpret the requirement in Section 304(m)(1)(C) to apply to currently unregulate d discharges

-- such as CBM

-- within existing industrial categories. Rather, EPA evaluates the need for effluent guidelines to address such discharges in reviewing the ELG for the existing industrial category, and identifies the category for revision, "i f appropriate." See CWA Section 304(b), 33 U.S.C. § 1314(b). In this case, because EPA was unable to identify a treatment technology thatSection 6

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– Support to Delist CBM

102 would be economically achievable for the CBM industry, EPA found that it would not be appropriate to revise the exis ting oil and gas ELG to address CBM discharges.Section 6

– Co albed Methane (CBM) Section 6.2

– Opposition to Delist CBM

103 Section 6.2

– Opposition to Delist CBM

Section 6.2.1 General Opposition to Delist CBM

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– 1 Organization: Northern Plains Resource Council Commenter Name: Eric VanderBeek Commenter Type : Environmental Organization

Comment Excerpt Text:
Northern Plains is a grassroots conservation and family agriculture group. We organize Montana citizens to protect our clean water, family farms and ranches, and unique quality of life. These
comments are submitted on behalf of the organization and our members, especially those who own property and reside in Montana counties downstream of CBM discharges. These members are dependent on ground and surface waters for their livelihoods as farmers and ranche rs. These waters include not only the Tongue River but also its tributaries. Our members are directly affected by CBM, and we urge the EPA to continue with the process of developing ELGs in a timely manner. Although the price of natural gas has been relati vely low as of late, CBM plans of development are still occurring in the state of Montana. CBM ELGs need to be developed, because as global demand for natural gas grows these resources will be tapped.
Response:
EPA appreciates the commenter’s concern abo ut CBM discharges to the environment. Although EPA is not moving forward with an ELG for this industry at this time, all CBM discharges to waters of the United States must have a National Pollutant Discharge Elimination System (NPDES) permit. See 33 U.S.C. §§ 1311(a), 1342(a). The Clean Water Act prohibits discharges of pollutants from point sources, such as CBM operations, into waters of the United States, except as authorized under the Act. 33 U.S.C. § 1311(a). Section 402 of the Act authorizes such di scharges under an NPDES permit. 33 U.S.C. § 1342(a)(1). As required by EPA regulations, NPDES permits must contain technology

- based effluent limitations as a minimum floor. 40 CFR Part 125.3. Thus, in the absence of an ELG, permit writers are required to use best professional judgment (BPJ) to establish technology

- based limitations on a case

- by

- case basis. See 33 U.S.C. §1342(a)(1); 40 CFR 125.3(c)(2). In addition, permits must include water quality

- based effluent limitations where necessary to meet s tate water quality standards. 33 U.S.C. § 1311(b)(1)(C).
ELGs must be based on technologies that are available and economically achievable by the regulated industry. See CWA Section 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A) (requiring "best available techno logy economically achievable"); 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B) (specifying factors for consideration in assessing "best available technology," including "cost of achieving such effluent reduction"). EPA’s economic analysis showed that, on a natio nal basis, a large fraction of CBM projects existing in 2008 are no longer viable and that potential new effluent guidelines requirements would impose a substantial economic/financial burden on new CBM projects. Furthermore, EPA found that potential new e ffluent guidelines requirements would further delay project viability by a significant number of years for most projects, regardless of the natural gas growth cases or the financial return sought by CBM project developers. Therefore, EPA was unable to iden tify an economically achievable technology forSection 6

– Coalbed Methane (CBM) Section 6.2

– Opposition to Delist CBM

104 the CBM extraction subcategory on a national basis, and EPA decided to remove the rulemaking for the CBM extraction subcategory from the effluent guidelines plan at this time. However, EPA noted that even if treatment technologies are not economically achievable for the industry as a whole, such technologies may be economically achievable for individual CBM operators. Therefore, BPJ

- based permits may include limits based on such technologies for particular di schargers where this is the case

-- even if such limits could not be established pursuant to a national ELG. Thus, BPJ

- based permitting is potentially a more appropriate and effective tool than nationally applicable effluent guidelines for addressing CBM discharges.Section 6

– Coalbed Methane (CBM) Section 6.2

– Opposition to Delist CBM

105 Section 6.2.2 Water Quality Impacts

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– 3 Organization: Northern Plains Resource Council Commenter Name: Eric VanderBeek Commenter Type: Environmental Organization

Comment Excerpt Text:
Northern Plains challenged the unfettered discharges of CBM water into the Tongue River and the 9th circuit ruled that CBM water was a pollutant and as such required a discharge permit. CBM discharges continue to be a problem for irrigators downstream from CBM development.
One significant problem with CBM development is the water brought to the surface in order to release the hydrostatic pressure on the coal seam, thus allowing the gas to rise. This water has a high concentration of salts and other pollutants. The high sodium adsorption ratio (SAR) and high electrical conductivity (EC) of this water, considered wastewater by t he methane developers, makes it “highly saline” in layman’s terms. In 2002 Northern Plains petitioned the Board of Environmental Review (BER) to set numeric standards for CBM discharge water, which were adopted in 2003. In 2006, we again successfully petit ioned the BER to remove the exemption to Montana’s non

- degradation policy for that CBM wastewater. These standards are critical to Montana’s agricultural economy as irrigators depend on clean water in our river systems.
Response:
EPA agrees that dischar ges from CBM operations must be authorized by a NPDES permit. See 33 U.S.C. §§ 1311(a), 1342(a). As required by EPA regulations, in the absence of national effluent limitations guidelines, NPDES permit writers must use best professional judgment (BPJ)
to establish technology

- based effluent limitations, including for CBM discharges. See 40 CFR 125.3(c)(2). Permits must also include water quality

- based effluent limitations where necessary to meet state water quality standards. 33 U.S.C. § 1311(b)(1)(C). To develop water quality

based effluent limitations, permit writers may use the information in the referenced studies. See comment response in Section 6.1.3 for additional information on CBM permitting.

The commenter asserts that the discharge of CBM wastewater causes environmental harm. EPA notes that technology

- based limits and water

- quality

- based limits reflect different approaches to mitigating pollutant discharges. Technology

- based effluent limitations guidelines and standards (ELGs) are based on the performance of the best technologies available and economically achievable in the regulated industry. As such, they are not established based on water qua lity

related factors, which is the comment's main concern here. Water

- quality

- based limits, on the other hand, are established based upon the state's water quality criteria and designated uses for the receiving waterbody, and are thus fundamentally concer ned with protecting water quality. The commenter's concern may, therefore, best be addressed by appropriate water

- quality

- based effluent limits.
As described in EPA’s response to comment code Section 6.2.3 , EPA’s economic analysis showed that, even without potential new effluent guidelines requirements, a large fraction ofSection 6

– Coalbed Methane (CBM) Section 6.2

– Oppositi on to Delist CBM

106 existing CBM projects are no longer economically viable. EPA’s Economic Analysis for Existing and New Projects in the Coalbed Methane Industry provides additional information on the economic analysis of this industry. Based on this analysis, EPA was not able to identify a technology that would be economically achievable for the CBM extraction indu stry on a national level, and thus is not establishing an ELG for this industry at this time. However, even though such technologies are not economically achievable for the industry as a whole, they may be economically achievable for individual CBM operat ors. Therefore, BPJ

- based permits may include limits based on such technologies for particular dischargers, where this is the case

-- even if such limits could not be established pursuant to a national ELG. Thus, BPJ

- based permitting may potentially be a more appropriate and effective tool than nationally applicable effluent guidelines for addressing CBM discharges.

EPA thanks the commenters for the references to the USGS studies and has added the studies to the docket. The USGS studied the potential toxi city and effects of sodium bicarbonate (NaHCO3). EPA notes that if it were to complete a CBM rulemaking, it would perform a complete environmental analysis in which the provided information would be considered. As it stands, however, after reviewing financ ial data pertaining to this industry (including natural gas price projections from the U.S. Energy Information Administration), wastewater quality/quantity data, and the cost of existing wastewater treatment options, EPA decided to delist the CBM extractio n subcategory from the effluent guidelines plan and discontinue the rulemaking at this time.

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– 5 Organization: Northern Plains Resource Council Commenter Name: Eric VanderBeek Commenter Type: Environmental Orga nization

Comment Excerpt Text:
As stated above, Northern Plains was instrumental in implementing Montana’s water quality standards for CBM. However, it has not been easy. Northern Plains has had the water quality standards for salinity challenged at every level. These standards, once they passed the rigorous process of going through the Board of Environmental Review, were instantly challenged by industry. Despite this, they were upheld by the Montana District Court and th e Montana Supreme Court in 200 8. The standards were challenged in the Federal Court in Wyoming, and EPA is currently taking another look at the standards to affirm that they are in order. The EPA needs to establish treatment standards so that Montana’s water quality can be protected.

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– Opposition to Delist CBM

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Comment Excerpt Text:

Coalbed methane extraction produces large volumes of wastewater characterized by the presence of numerous contaminants at potentially high concentrations. Inadequate treatment and discharge of these wastes jeopardizes the integrity of surface water, can lead to in creased public health risks from drinking water, threatens fish and wildlife and causes other negative environmental impacts.
Response:
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– 1 Organization: Wyoming O utdoor Council & Powder River Basin Resource Council Commenter Name: Amber Wilson & Jill Morrison Commenter Type: Environmental Organization

Comment Excerpt Text:
We write concerning the EPA's proposal to delist coalbed methane (CBM) from the Effluent L imitation Guidelines (ELG) plan under the Clean Water Act. The EPA's proposal is highly problematic as it considers only financial cost to industry and, contrary to the agency's mission, overlooks other important costs.
The EPA's proposal would spare the C BM industry the monetary costs of treating the water it produces, but the proposal fails to account for the cost and impact ofthe CBM discharge water that is discharged without treatment. Those costs do not disappear. Rather, they are passed onto the publi c and to private landowners when the saline water is discharged onto the land surface, damaging soils and vegetation, destroying production grazing land and habitat and disrupting otherwise ephemeral stream channels with higher and more consistent volumes ofwater. 1

As the EPA knows, its purpose is to protect the public from significant risks to the environment, to ensure efforts to reduce environmental risk are based on the best available scientific information and that environmental protection contributes to making our communities and ecosystems diverse, sustainable, and economically productive. 2

The EPA's "Coalbed Methane Extraction: Detailed Study Report" cited in the proposal asserts there will be "no environmental impact" from CBM produced water. This i s erroneous given the acknowledgement in the same report of impacts to vegetation, water quality and wildlife due to the change in stream volume, turbitity, salinity, TDS, SAR, toxicity and other factors resulting from produced water discharge to streams. 3 The report also acknowledges a "limited number of studies" on the impacts of CBM discharge to streams. 4Section 6

– Coalbed Methane (CBM) Section 6.2

– Opposition to Delist CBM

108 A review of the best information available, which the EPA itself has done, does not logically support the EPA's proposal. The high potential for stream erosion, soil salinization and resulting destruction of native vegetation and influx of invasive vegetation species does not constitute a diverse, sustainable, or economically productive ecosystem. Contrary to EPA's proposal, the evidence presented in t he literature and EPA's own reports suggest high costs, or at least the potential for high costs, to land for both public and private landowners if CBM is delisted from the ELG guidelines. Further, the EPA report fails to account for the impacts to fishe ries and especially to rare and threatened species in the Powder River. Those impacts are documented by USGS studies. 5

It seems EPA's proposal simply ignores this information and has instead focused attention on the cost to industry of treating CBM produc ed water. 6

We would like to remind the EPA that first and foremost, it has a duty to the American people, their health and the environment. The public and private landowners cannot be the parties left holding the bill because an industry that profited from their lands would be financially burdened by properly managing the byproduct of its processes.
We sincerely appreciate the EPA's consideration of these comments and request that it re

consider all costs associated with the proposal to delist CBM water fro m the ELG plan.

1 EDE Consultants. "Wildhorse Creek Hydrology and Geomorphology Clabaugh Ranch Arvada, Wyoming." August 2010.

2 epa.gov

3 U.S. Environmental Protection Agency. "Coalbed Methane Extraction: Detailed Study Report." December 2010. pgs 4

- 1

- 4

- 12

.

4 U.S. Environmental Protection Agency . "Coalbed Methane Extraction: Detailed Study Report." December 2010. pg 4

- 1.

5 U.S. Geological Survey, Columbia Environmental Research Center, Jackson Field Research Station. U.S. Geological Survey, Wyoming Cooper ative Fish and Wildlife Research Unit, Laramie, WY. "Potential Effects of Coalbed Natural Gas Development on Fish and Aquatic Resources." Coalbed Natural Gas Energy and Environment. K.J. Reddy pp. 227

- 242. 2010.
USGS, Scientific Investigations Report 2 012

- 5008. "The Potential Effects of Sodium Bicarbonate, A Major Constitutent of Produced Waters from Coalbed Natural Gas Production, on Aquatic Life. Farag, Aida and Harper, David.
USGS, Open File Report 2011

- 1294. "Assessment of Potential Effects of Wat er Produced from Coalbed Natural Gas Development on Macroinvertebrate and Algal Communities in the Powder River Basin and Tongue River, Wyoming and Montana, 2010. Peterson, Hargett and Feldman.

6 U.S. Environmental Protection Agency . "Technical Developmen t Document for the Coalbed Methane Extraction Industry." April2013. pg S

- 2.Section 6

– Coalbed Methane (CBM) Section 6.2

– Opposition to Delist CBM

109 Response:
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– Coalbed Me thane (CBM) Section 6.2

– Opposition to Delist CBM

110 Section 6.2.3 Change in Economics of Industry

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– 10 Organization: Northern Plains Resource Council Commenter Name: Eric VanderBeek Commenter Type: Environmental Organization

Comment Excerpt Text:
Therefore, we ask that the EPA follow through with their original commitment to develop new effluent limit guidelines for CBM. We believe t hat the EPA’s proposed change of course based on new information regarding the declining prevalence and economic viability of this industry, due in large part to the increased extraction of natural gas from other sources, does not serve as a justifiable re ason to drop the new effluent guidelines.
Montana is still experiencing new CBM plans of development, and when global demand for natural gas raises this extraction method will be utilized again near essential water resources. The EPA must demonstrate fore sight and continue with the ELGs in order to ensure that CBM development in Montana is done responsibly.
Response:
Under the Clean Water Act, effluent limitations guidelines and standards (ELGs) must be developed based on technologies that are available and economically achievable. See Clean Water Act Section 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A) (requiring effluent limitations based on "best available technology economically achievable"); Section 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B) (requiring cons ideration of the cost of achieving such effluent reduction). EPA’s economic analysis showed that, even without potential new effluent guidelines requirements, a large fraction of CBM projects existing in 2008 are no longer economically viable. EPA estimat ed that approximately 25 percent of CBM projects existing in 2008 either closed immediately in 2008 or were non

- operational by 2010. EPA then estimated that an additional 43 percent of projects discharging in 2008 were shut down by 2012. In both cases, th ese estimates assumed the presence of no new ELG requirements.
EPA also found that, of the projects found to be economically viable among the total projects at the beginning of the analysis period, the application of wastewater control technology options

c onsidered in this analysis would lead to immediate or earlier closure of CBM projects, as well as more losses in gas production than would occur in the absence of technology costs. Based on these estimates of additional closures, earlier shutdowns of CBM p rojects, and loss in gas production, EPA was not able to identify a wastewater treatment technology that would be economically achievable at the national level. EPA’s Economic Analysis for Existing and New Projects in the Coalbed Methane Industry provides additional information on the economic analysis of this industry.
Furthermore, independent of potential new effluent guidelines requirements considered in the analysis, EPA found that new CBM projects in most basins are not economically viable at 2012
natu ral gas prices. EPA also concluded that potential new effluent guidelines requirements would further delay project viability for most projects, regardless of the growth of natural gas or theSection 6

– Coalbed Methane (CBM) Section 6.2

– Opposition to Delist CBM

111 financial return sought by CBM project developers. Based on the l ack of economical viability for the period of analysis, EPA made the decision to delist the CBM industry and to discontinue the rulemaking.
While the Energy Information Administration (EIA) projects that gas prices will rise steadily over the next few deca des, the EIA does not expect prices to reach the 2008 price level (on an inflation

- adjusted basis) until 2040. See page 3 in EPA’s Economic Analysis for Existing and New Projects in the Coalbed Methane Industry demonstrating the projections of natural gas prices. While EPA does not necessarily conclude that prices must be at least at 2008 levels before it may be possible to identify economically achievable effluent guidelines for the industry, at the current price level, EPA has not been able to identify tr eatment technologies that would be affordable for the industry as a whole, at the national level.
EPA notes that, although the Agency has decided to delist a rulemaking for the CBM Extraction subcategory from the effluent guidelines plan, CBM discharges to surface water (like all discharges) require an NPDES permit. 33 U.S.C. §§ 1311(a), 1342(a). See comment response in Section 6.1.3 for additional information on C BM permitting. Where EPA has not promulgated an ELG for an industrial category, NPDES permits must contain technology

- based limitations for individual dischargers established on a case

- by

- case, Best Professional Judgment (BPJ) basis. See 33 U.S.C. § 1342 (a)(1); 40 CFR 125.3(c)(2). In establishing BPJ

- based limits, permit writers are required to consider, on a case

- by

- case basis for the individual discharger, the same factors that EPA considers in establishing ELGs for an industrial category. 40 CFR 125.3(d). Although EPA was not able to identify a wastewater treatment technology that would be economically achievable for the CBM extraction industrial category as a whole, permit writers may find that these treatment technologies are economically achie vable for individual dischargers, and thus may include BPJ

- based effluent limitations based on these treatment technologies in NPDES permits for such dischargers. Thus, BPJ

- based permitting may be a more appropriate and effective tool than nationally appl icable effluent guidelines for addressing CBM discharges.

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– 5 Organization: Clean Water Action et al. Commenter Name: Lynn Thorp Commenter Type: Environmental Organization

Comment Excerpt Text:
EPA’s proposa l to delist the coalbed methane extraction industry and to discontinue rulemaking is premature. EPA should reconsider this proposal given that coalbed methane is currently being produced and in light of inevitable shifts in gas prices, demand and costs of wastewater treatment.
In the Preliminary 2012 Plan, EPA announced that it “... may not be able to identify a wastewater treatment technology that would be economically achievable for this industrial subcategory. Although potential treatment technologies may exist, these technologies do not appear to be economically achievable due, in part, to the decrease in gas prices as a result of theSection 6

– Coalbed Methane (CBM) Section 6.2

– Opposition to Delist CBM

112 recent boom in development of shale gas resources.” 4 The vague and qualified nature of this statement does not justify the delisting decision.
Changes in the gas industry, including prices, are not sufficient to reverse a well

- documented decision just two years ago about the need for national Guidelines for treatment and handling of this water pollution. The coalbed methane reserves which formed the basis for projections of growth in this category just a few years ago still exist, and as noted by comments from the Northern Plains Resource Council (August 2013), increased global demand could once again shift the projections fo r this subcategory.
According to the U.S. Energy Information Administration (EIA), 1.71 trillion cubic feet of natural gas was produced from coalbed methane wells in 2011. Coalbed methane production occurred in fourteen states. 5 Companies have plans to co ntinue coalbed methane production. For example, in 2012, one company announced its plans to revive “dormant economically

- depleted coal

- bed methane wells in the Powder River Basin.” 6

When natural gas prices decline, all forms of natural gas production decre ase, including shale gas, yet the EPA has proposed continuing with development of ELGs for shale gas. Furthermore, EIA has projected that the average Henry Hub natural gas price will increase from 2013 to 2014. 7 EIA also projects that coalbed methane production will remain relatively steady over the next 20 years. Production isn’t expected to increase or decrease by more than a few percent relative to 2011 production volumes, when the EPA determined that such rules were necessary. 8 While the s igners of this comment letter do not endorse or dispute these projections, the fact remains that natural gas prices and production volumes are uncertain, and that the EPA should make decisions about surface water protection based on the known risks of cont amination and alternatives available to prevent contamination.
EPA should not propose a final decision that allows continued threats of contamination to waters of the United States based on a vague conclusion that economically achievable treatment technolo gy “may” not be available. In addition, the EPA wrongly bases its proposal on a claim about current gas prices, and then only about one type of natural gas. If the EPA issued ELGs to protect clean water, and for some reason industry could not produce coalb ed methane while complying with the ELGs, then industry would stop producing natural gas from coalbed methane formations and would instead produce natural gas from other formations. Of course, ELGs should be in place for all forms of natural gas production

. On the one hand, the EPA is saying that coalbed methane extraction is declining and therefore the water contamination does not need to be addressed, but on the other hand the EPA is saying that it will not propose an ELG so that the coalbed methane indu stry can continue to operate. The bottom line is that the EPA cannot predict natural gas prices or production volumes. Prices and production volumes will continue to fluctuate and the EPA should not base Clean Water Act policy on any attempts to predict pr ices or production. Instead, the EPA should be enforcing the Clean Water Act by protecting surface waters from industrial contamination.
There is no justifiable reason to put coalbed methane extraction above clean water, especially when EPA cannot predict prices or production and cannot even say with certainty that economically achievable treatment technology is not available.Section 6

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– Opposition to De list CBM

113 4 US EPA, Preliminary 2012 Effluent Guidelines Program Plan (Preliminary 2012 Plan), EPA

821

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- 2,4

- 3

5 U.S. Energy Information Administration, Coalbed Methane Production (Billion Cubic Feet), 8/1/2013

6 University of Wyoming, “Company’s Spin

- Out Agreement with UW Looks to Sustain Long

Term Production of Coal

- Bed Methane,” May 1. 2012 press release.

7 U.S. Energ y Information Administration, “Short

- Term Energy Outlook,” September 10, 2013.

8 U.S. Energy Information Administration. (2013). Annual Energy Outlook 2013 Early Release.
Response:
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– Coalbed Methane (CBM) Section 6.3

– Surface Water Discharge Practices

114 Section 6.3

– Surface Water Discharge Practices

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Comment Excerpt Text:
The oil and gas industry has continued to pollute the streams that come into Montana. The Salt Creek field in Wyoming dumped highly polluted brine water into the Powder River starting in 1920. They continued to dump the wastewater into the Powder River until almost 1990. A Department of Environme ntal Quality (DEQ) representative stated at one point that those discharges accounted for up to 25% of the salt in the Powder River. We understand that most of the water is now injected deep to prevent river damage.
The CBM industry in Montana continues t o dump untreated wastewater into the Tongue River. The discharges from CBM have caused the SAR to increase by 32% from baseline levels prior to CBM and coal mining discharges.
Response:
According to information from EPA’s data collection efforts and from discussions with representatives from the Montana Department of Environmental Quality 1 , there are no untreated CBM discharges into the Tongue River in Montana. Montana has issued three discharge permits but only one operator, Fidelity, is currently discha rging to the Tongue River (EPA

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- 0168). The current Fidelity permit (MT0030724) requires the use of the Exterran/Higgins LoopTM technology, which is described in the Technical Development Document for the Coalbed Methane (CBM) Extraction Indus try and the memorandum Ion Exchange Vendors in the CBM Industry (EPA

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- 0159). The Higgins Loop technologyTM is capable of removing 78

- 95 percent bicarbonate, 98 percent sodium, over 92 percent magnesium, and over 93 percent potassium from CBM produced water. Therefore, this technology will reduce sodium adsorption ratio (SAR) prior to discharge to the Tongue.
Wyoming also does not allow untreated discharges to the Tongue River. According to information from the Wyoming Department of Environmen tal Quality (WYDEQ), operators in the Tongue River basin store produced water in off

- channel pits, which are permitted through WYDEQ. The permits only allow discharges to the Tongue River for emergency releases such as during a storm event. Wyoming tracks the emergency releases and also monitors stream flow to determine if there are any unauthorized releases. 2

In 2012, the Wyoming State G eological Survey completed a study analyzing the cause of annual elevated salinity in the Tongue River. 3 The study evaluated whether an observed, annual short

term rise in salinity in the Tongue River of northeastern Wyoming is due to natural or anthropoge nic causes. The study used water quality data and isotopic ratios of carbon to characterize the water of the Tongue River and associated tributaries, and to determine whether the source of elevated salinity in the early spring is the result of natural proc esses or human activities. The results of the study show that CBM produced water can be distinguished fromSection 6

– Coalbed Methane (CBM) Section 6.3

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115 natural surface waters on the basis of water quality and the carbon isotope ratio of dissolved inorganic carbon. The data suggest that natural spring runoff processes within the basin interior are responsible for elevated total dissolved solids (TDS) measured at the Wyoming/Montana state line during late February and early April. The isotopic and geochemical evidence from this study suggests that CBM p roduction in the area is likely not the cause of high salinities in the early spring in the Tongue River. Based on the results of this study and the restrictions on discharging untreated water to the Tongue, EPA has no data that indicates that CBM discharg es are the cause of elevated TDS levels in the Tongue.
For discharges to the Powder River, WYDEQ implemented an assimilative capacity program, similar to a total maximum daily load (TMDL), to allocate discharges to the Powder River. Wyoming calculated the TDS and sodium capacity of the Powder River by month and allocated monthly discharge credits to operators in the Powder River Basin based on the operator’s share of the mineral lease (EPA

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- 0168). Wyoming notes that permitted discharges to th e Powder River have been in decline. In 2010, Wyoming had 60 active CBM permits covering 332 outfalls. In 2013, Wyoming had 41 active CBM permits covering 216 outfalls. Wyoming expects this trend to continue as operators let their permits expire without su bmitting applications for renewal.

1 Teleconference notes, EPA and Montana Department of Environmental Quality, December 11, 2013.

2 Teleconference notes, EPA and Wyoming Department of Environmental Quality, December 13, 2013.

3 Quillinan, Scott A., J. Fred McLaughlin, and Carol D. Frost, “Geochemical and Stable Isotopic Analysis of the Tongue River and Associated Tributaries in the Powder River Basin: An Analysis of the Cause of Annual Elevated Salinity in Spring Runoff”, Wyoming State Geological Survey, Rep ort of Investigation No. 63, 2012.Section 6

– Coalbed Methane (CBM) Section 6.4

– Impacts from Surface Water Discharges

1 16 Section 6.4

– Impacts from Surface Water Discharges

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Com ment Excerpt Text:
Another significant problem with CBM development is the depletion of Montana’s groundwater, which many of our members depend on for operation of their ranches. A peer

- reviewed scientific study by Dr. Thomas Myers was published in the M arch 2009 issue of the Journal of Hydrology and details the devastating effects that CBM development will have on groundwater aquifers in the Powder River Basin.
Dr. Myers developed a numerical groundwater flow model that simulated aquifer drawdown during CBM well development. The model indicates that groundwater depletion will affect river flows in the region by depleting groundwater discharge and natural recharge of the rivers. The drawdown will also affect hundreds of wells and natural springs hydrologi cally tied to the coal seam aquifers. These wells and natural springs are important sources of domestic and stock water for residents of this area. After methane development ceases, partial recovery of the aquifers will take up to 50 years, and as long as 200 years for full recovery.
Dr. Myers’ simulation also demonstrated the value of reinjecting as much of the CBM wastewater as possible back into the groundwater system. Northern Plains has long advocated this as a solution to many of the problems with C BM development.
Response:
EPA notes that an ELG for CBM would not necessarily address the commenters' concerns. ELGs do not address water withdrawal issues; rather, they are technology

- based regulations to control industrial wastewater discharges to su rface waters or to publicly owned treatment works (POTWs). ELGs establish technology

- based effluent limitations applicable to discharges, but do not typically mandate the use of a specific technology or disposal method, such as underground injection.

Acc ording to information from EPA’s data collection and from discussions with representatives from the Montana Department of Environmental Quality (DEQ) 1 , there are no untreated CBM discharges into the Tongue River. Montana has issued three permits for discha rges of CBM wastewater into the Tongue River, but only one permit, issued to Fidelity Exploration and Production Company (Fidelity), currently discharges to the Tongue River (EPA

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- 0168). In 2009, Fidelity had two permits, one of which author ized the discharge of untreated wastewater. While discharging untreated produced water, Fidelity failed 150 WET tests. Montana DEQ terminated this permit, and Fidelity is no longer authorized to discharge untreated wastewater. The current Fidelity permit ( MT0030724) requires the use of the Exterran/Higgins LoopTM technology, which is described in the Technical Development Document for the Coalbed Methane (CBM) Extraction Industry and the memorandum Ion Exchange Vendors in the CBM Industry (EPA

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– Impacts from Surface Water Discharges

117 Wyoming also does not generally allow untreated discharges to the Tongue River. According to information from the Wyoming Department of Environmental Quality (WYDEQ), operators in the Tongue River basin store produced water in off

- channel pits, w hich are permitted through WYDEQ. The permits only allow discharges to the Tongue River for emergency releases such as during a storm event. Wyoming tracks the emergency releases and also monitors stream flow to determine if there are any unauthorized rele ases. 2

In 2009, EPA completed a literature review to determine if there were documented impacts associated with discharges of CBM produced water, which EPA reported in the Coalbed Methane Extraction: Detailed Study Report ( http://water.epa.gov/scitech/was tetech/guide/304m/upload/cbm_report_2011.pdf )

. EPA found only two papers that showed some documented impacts associated with CBM discharges in the Powder River. In 2012, the Wyoming State Geological Survey completed a study analyzing the cause of annual elevated salinity in the Tongue River. 3 The stud y evaluated whether an observed, annual short

- term rise in salinity in the Tongue River of northeastern Wyoming was due to natural or anthropogenic causes. The study used water quality data and isotopic ratios of carbon to characterize the water of the Ton gue River and associated tributaries, and to determine whether the source of elevated salinity in the early spring is the result of natural processes or human activities. The results of study show that CBM produced water can be distinguished from natural s urface wasters on the basis of water quality and the carbon isotope ratio of dissolved inorganic carbon. The data suggest that natural spring runoff processes within the basin interior are responsible for elevated TDS measured at the Wyoming/Montana state line during late February and early April. The isotopic and geochemical evidence from this study suggests that CBM production in the area is likely not the cause of high salinities in the early spring in the Tongue River. Based on the results of this study and the restrictions on discharging untreated water to the Tongue, EPA does not have data to suggest that CBM discharges are the cause of elevated TDS levels in the Tongue.

1 Teleconference notes, EPA and Montana Department of Environmental Quality, Decemb er 11, 2013.

2 Teleconference notes, EPA and Wyoming Department of Environmental Quality, December 13, 2013.

3 Quillinan, Scott A., J. Fred McLaughlin, and Carol D. Frost, “Geochemical and Stable Isotopic Analysis of the Tongue River and Associated Tributari es in the Powder River Basin: An Analysis of the Cause of Annual Elevated Salinity in Spring Runoff”, Wyoming State Geological Survey, Report of Investigation No. 63, 2012.Section 6

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– Impacts from Surface Water Discharges

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Comment Excerpt Text:

The increases in SAR have affected the high clay soils irrigated near Miles City and production is decreasing rapidly. One of the irrigator s near Miles City has quit irrigating with Tongue River water and now pumps water out of the Yellowstone River. He is hopeful that his soils will recover, but only time will tell. The oil and gas industry must not be allowed to dump untreated oil and gas w astewater or untreated CBM wastewater. There must be treatment standards established. The CBM industry should not be exempted from any water quality standards.
In 2009, Northern Plains discovered that the major CBM producer in Montana, Fidelity Exploratio n and Production Company (Fidelity), violated more than 150 whole effluent toxicity (WET) tests. Fidelity’s direct, untreated discharges are the reason for those violations. If there were treatment standards Fidelity would most likely be able to meet the water quality standards, and, in fact, they are passing the WET tests on their other discharges where they are required to treat the water.
In addition to monitoring the WET tests, Northern Plains has been commenting for years on discharge permits into t ributaries to the Tongue River. Some of these discharges originate in Wyoming, and the discharges into the tributaries exceed the flow limitation anti

- degradation criteria in Montana. These tributaries cannot handle oil and gas or CBM wastewater discharges

. The salts in the water are an additional load to these tributaries. Most of the water that comes down these is from rainwater which is essentially distilled water and has no salts. The salts added by CBM or oil and gas wastewater discharges are an incre ase in the loads to these streams and should not be permitted until the total maximum daily load (TMDL) standards are done on the streams in Montana. It is apparent that these streams are affected by the quantity and quality of discharge water.

The CBM industry is trying to dispose of the water by “land applying” it on agricultural lands. The salts are building up in those soils and resulting in a loss of productivity in the future. This is yet another reason why treatment standards need to be establish ed, so that the discharge water not only can be used for irrigation, but can be discharged without harming any aquatic or fish species or the bugs and algae that they eat.
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– Coalbed Methane (CBM) Section 6.4

– Impacts from Surface Water Discharges

11 9 Comment Excerpt Text:
EPA’s Final Coalbed Methane Extraction: Detailed Study Report (Study Report) found that
p roduced water from coalbed methane extraction has the potential to cause multiple negative environmental impacts:
CBM produced water is generally characterized by elevated levels of salinity, sodicity, and trace elements (e.g., barium and iron). Other tra ce pollutants that may be present in produced water include potassium, sulfate, bicarbonate, fluoride, ammonia, arsenic, and radionuclides. The characteristics of the produced water depend on the geography and location (e.g., naturally occurring elements). All of these parameters can cause adverse environmental impacts (see Chapter 4) and also affect the potential for beneficial use of produced water. 1

EPA estimated that in 2008, 22 billion gallons of produced water from coalbed methane extraction were dis charged directly into waters of the US, threatening the integrity of the receiving waters. Other methods of handling coalbed methane produced water also have the potential to cause environmental impacts. For example, when untreated produced water is stored in impoundments or used on land for irrigation or dust control, heavy metals, salts and other contaminants can infiltrate into local groundwater which may be used as drinking water sources or in agricultural activity. 2

1 US EPA, Coalbed Methane Extractio n: Detailed Study Report (Detailed Study), EPA

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- 022 ( September 2011).

2 Id. at 4

- 1 through 4

- 3.

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120 Section 6.5

– Legal Authority

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Comment Excerpt Text:
As explained in the attached May 2009 letter from the Environmental Protection Agency (EPA) to the Montana DEQ, Montana nee ds to establish technology based effluent limitations (TBELs) such as reinjection and treatment in order to be in compliance with the Federal Clean Water Act. To date, the DEQ has not established TBELs nor (to our knowledge) has the agency replied to the l etter. It is Northern Plains’ position that EPA effluent standards must be established in order for Montana to be in compliance.
Response:
The commenter correctly notes that Congress intended for each discharger within an industrial point source category to meet the same, technology

- based effluent limitations, regardless of their location, and that effluent limitations based on Best Available Technology Economically Achievable (BAT) would result in reasonable further progress toward the national goal of

e liminating the discharge of all pollutants. See 33 U.S.C. § 1311(b)(2)(A). However, Congress also required that effluent limitations be “economically achievable” by the regulated industry. See 33 U.S.C. § 1311(b)(2)(A). Based on its economic analysis, EPA concluded that the addition of potential new effluent guidelines requirements for the control of total dissolved solids (TDS) from the CBM extraction industry would substantially burden the economic and financial performance of new CBM projects, and would further delay project viability by a significant number of years for most projects, and thus would not be economically achievable for the industry as a whole. Based on this conclusion, EPA decided to delist the CBM extraction subcategory from the effluent guidelines plan and discontinue the rulemaking. Despite the absence of national effluent limitations guidelines, any CBM discharge to surface water still requires an NPDES permit. The Clean Water Act prohibits discharges from point sources, such as CBM op erations, into waters of the United States, except as authorized under the Act. 33 U.S.C. §§ 1311(a), 1342(a). Section 402 of the Act authorizes such discharges under an NPDES permit. As required by EPA regulations, in the absence of nationally applicable effluent limitations guidelines, NPDES permit writers must use best professional judgment (BPJ) to establish technology

- based effluent limitations, including for discharges from the CBM extraction industry, on a case

- by

- case basis. 40 CFR 125.3(c)(2). Al though EPA was unable to identify a treatment technology that would be economically achievable for the CBM extraction industry on a national basis, permit writers may find that such technologies are economically achievable for individual CBM operators. Therefore, BPJ

- based permits may include effluent limitations based on such technologies for particular dischargers, where this is the case

-- even if such limits could not be established pursuant to a national ELG at this time. Thus, BPJ

- based permittin g is potentially a more appropriate and effective tool than nationally applicable effluent guidelines for addressing CBM discharges.Section 6

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– Legal Authority

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– 4 Organization: Clean Water Action et al. Commenter Name : Lynn Thorp Commen ter Type: Environmental Organization

Comment Excerpt Text:
In the October 2011 Final 2010 Effluent Guidelines Program Plan (Final 2010 Plan), EPA

a nnounced that it would undertake Clean Water Act Effluent Guidelines rulemaking for the coalbed methane su bcategory of the Oil and Gas Industrial Sector because of the findings of the Study Report that coalbed methane discharges large quantities of produced water into surface waters and that technology is available to treat this discharged water. 3

In the Preli minary 2012 Effluent Guidelines Program Plan(Preliminary 2012 Plan) EPA provides no evidence that practices for handling coalbed methane produced water have changed, nor does EPA present any information to contradict the findings of the 2010 Final Plan or the Detailed Study that contaminants in coalbed methane produced water can cause numerous negative environmental impacts including degradation of water quality, public health risk from drinking water source contamination and threats to fish and wildlife. T he threats of coalbed methane produced water being discharged into surface waters remain the same. National Effluent Guidelines are justified and needed to address the environmental impacts of water discharges from coalbed methane extraction.

3 Notice of Final 2010 Effluent Guidelines Program Plan, 76 Federal Reg. 66,286,66296 (October 26, 2011).
Response:
See response to EPA

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Comment Excerpt Text:
The Congressional intent underlying the Clean Water Act’s Effluent Guidelines and Limitations

setting process included prevention of “pollution havens.” Coalbed methane extraction ELG’s are necessary and affordable treatments are available to avoid this outcome in places where coalbed methane extraction is occurring.
As noted in the Preliminary 2012 Plan, determining Best Affordable Technology (BAT) for control of water pollution was intended by Congress to eliminate discharges, improve water quality and insure that each industrial category meets the same pollution limits regardless of their location. 11 The goal of avoiding “pollution havens” is particularly important in this case.Section 6

– Coalbed Methane (CBM) Section 6.5

– Legal Authority

122 As noted in the Detailed Study, the vast majority of surface water discharges from coalbed methane extraction occur in three basins: the Power River Basin in Wyoming and Montana, the Black Warrior Basin in Alabama and Mississippi and the Raton Basin in Colorado and New Mexico. 12 A potentially temporary downturn in production in some of these places does not justify leaving water resources, public health and wildlife in these places vulnerable to documented risks from water discharges from this s ector. EPA’s decision will allow coalbed methane extraction to continue without national pollution prevention and control practices and technologies in place which could prevent the potential for “pollution havens” to experience very real negative environm ental impacts.

11 Preliminary 2012 Plan at 2

- 2.

12 Detailed Study at 3

- 15.
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– Coalbed Methane (CBM) Section 6.6

– Expansion to Hydrauli c Fracturing

123 Section 6.6

– Expansion to Hydraulic Fracturing

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– 2 Organization: Northern Plains Resource Council Commenter Name : Eric VanderBeek Commenter Type: Environmental Organization

Comment Excerpt Text:
We also agree that the EPA should expand their study to include other oil and gas impacts from processes such as hydraulic fracturing. Howe ver, we hope that this inclusion does not delay any decisions on CBM.
Response:
EPA appreciates the commenter’s concern about CBM discharges and the suggestion to study discharges from other types of oil and gas operations, such as hydraulic fracturing. EPA is currently working on revisions to the Onshore Oil and Gas ELGs to address discharges from the unconventional oil and gas extraction industry that uses hydraulic fracturing. Information on this effort can be found at http://water.epa.gov/scitech/wa stetech/guide/oilandgas/unconv.cfm

. Regarding the CBM extraction industry, as discussed elsewhere in these responses to comments, EPA is not moving forward with an ELG for this industry at this time. However, all CBM discharges to waters of the United Stat es must have a National Pollutant Discharge Elimination System (NPDES) permit. The Clean Water Act prohibits discharges of pollutants from point sources, including CBM operations, into waters of the United States, except as authorized under the Act. 33 U.S .C. § 1311(a). Section 402 of the Act authorizes such discharges under an NPDES permit. In the absence of a nationally applicable ELG, permit writers are required to use best professional judgment (BPJ) to establish technology

- based limitations on a case

- b y

- case basis. See 33 U.S.C. § 1342(a)(1); 40 CFR 125.3(c)(2). In addition, permits must include water quality

- based effluent limitations where necessary to meet state water quality standards. 33 U.S.C. § 1311(b)(1)(C).
ELGs must be based on technologies th at are available and economically achievable by the regulated industry. See CWA Section 301(b)(2)(A), 33 U.S.C. § 1311(b)(2)(A) (requiring "best available technology economically achievable"); 304(b)(2)(B), 33 U.S.C. § 1314(b)(2)(B) (specifying factors for consideration in assessing "best available technology," including "cost of achieving such effluent reduction"). EPA’s economic analysis showed that, on a national basis, a large fraction of CBM projects existing in 2008 are no longer viable and that poten tial new effluent guidelines requirements would impose a substantial economic/financial burden on new CBM projects. Furthermore, EPA found that potential new effluent guidelines requirements would further delay project viability by a significant number of years for most projects, regardless of the natural gas growth cases or the financial return sought by CBM project developers. Therefore, EPA was unable to identify an economically achievable technology for the CBM extraction subcategory on a national basi s, and EPA decided to remove the rulemaking for the CBM Extraction subcategory from the effluent guidelines plan at this time. However, EPA notes that, even if treatment technologies are not economically achievable for the industry as a whole, such technol ogies may be economically achievable for individual CBM operators.Section 6

– Coalbed Methane (CBM) Section 6.6

– Expansion to Hydraulic Fracturing

124 Therefore, BPJ

- based permits may include effluent limitations based on such technologies for particular dischargers, where this is the case

-- even if such limits could not be established
p ursuant to a national ELG. Thus BPJ

- based permitting may be a more appropriate and effective tool than nationally applicable effluent guidelines for addressing CBM discharges.

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Comment Excerpt Text:
Finally, on a slightly different note, Northern Plains believes that the EPA is on the right track in considering all oil and gas extraction techniques and the resulting contamination that can occur, especially with hydraulic fracturing. Hydraulic fracturing is a very suspect technique that Northern Plains’ members in eastern Montana will soon face with the emergence of deep gas dril ling. It deserves full study and action before the impacts are felt around the country. However, hydraulic fracturing is a huge, complicated issue that should be studied separately from effluent guidelines for CBM and should not delay the issuance of these guidelines.
Response:
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– 1 Organization: Clean Water Action et al. Commenter Name: Lynn Thorp Commenter Type: Environmental Organization

Comment Excerpt Text:
We support the on

- going revisions to the Onshore Oil and Gas ELGs to address pollution from the unconventional oil and gas extraction industry but urge EPA to include not just shale gas wastewater, but all oil and gas exploration, stimulation and extract ion techniques which can cause surface or groundwater pollution, in these revisions.
Response:
EPA notes that its ongoing rulemaking concerning revisions to the Onshore Oil and Gas ELGs is limited to pretreatment standards for indirect discharges from o nshore oil and gas extraction facilities that send their discharges to Publicly Owned Treatment Works (POTWs). EPA is not currently revising the existing requirements that apply to direct discharges from onshore oil and gas extraction facilities, which con tinue to be subject to the ELG at 40 CFR Part 435, Subpart C. EPA further notes that its ongoing rulemaking concerning pretreatment standards for indirect discharges is not limited to addressing shale gas operations, but rather includes consideration ofSection 6

– Coalbed Methane (CBM) Section 6.6

– Expansion to Hydraulic Fracturing

125 pr ocess wastewaters from unconventional oil and gas extraction more broadly. As explained in the responses to EPA

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– Coalbed Methane (CBM) Section 6.7

– New CBM Data

126 Section 6.7

– New CBM Data

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– 1 Organization: Natural Resources Defense Council Commenter Name: Amy Mall Commenter Type: Environmental Organization

Comment Excerpt Text:
Testing a Novel Low Temperature Desalinatio n Concept for Wellhead Treatment of Produced Water U S Department of Energy research partners at the New Mexico Institute of Mining and Technology, together with Harvard Petroleum Corp., and Robert L. Bayless, Producer, LLC., have completed laboratory and field pilot testing of a system that relies on a low temperature distillation humidification dehumidification (HDH) process to remove salts from produced water. Longer term field testing of a 30 barrel per day (Bpd) prototype (now underway) will incorporat e solar panels to provide heat for the process, increasing yields and reducing external power requirements.
Background
Produced water can be very saline, sometimes nearly six times as salty as seawater. For many smaller oil and natural gas producers faced with the need to dispose of large volumes of this brine in mature fields with tight operating cost constraints, the prospect of a low

- temperature system that could desalinate the water at the wellhead is very attractive. Pure (or even less salty)
water co uld be used for a number of oilfield operations (e.g., waterflooding, drilling fluids, stimulation fluids) and/or beneficial uses like irrigation, revegetation or livestock water.

Produced water desalination efforts have been focused on demineralization te chnologies that include reverse osmosis (RO), distillation, electrodialysis, freeze

- thaw desalination, and ion exchange. Air stripping, activated carbon adsorption, membrane filtration, biological treatment and wet air oxidation have been widely investigat ed for removing the dissolved organic compounds that are also present in produced water. Unfortunately, applications of these technologies can be limited due to environmental factors (i.e., freeze

- thaw works best in cold, dry climates) and energy intensity . Options are needed that are less energy intensive and applicable in a wider range of environments.

The HDH Process
The HDH process relies on the mechanism of air humidification at elevated temperature and water condensation at low temperature. Air can carry large amounts of water vapor at elevated temperature and that water vapor will condense when its temperature is dropped. In this system, air is used to scrub the produced water feed and then the feed water is sprinkled into the top of a chamber fille d with packing material for enhanced water/air contact as air is pumped upwards from the bottom via a blower. The air is humidified as it travels to the top and then dehumidified in the adjacent condensing chamber. A large air

- liquid contact area enhances water evaporation by forming a large area of thin water surface for contact with the forced air flow.
During the course of this research, bench

- scale and field scale prototypes employing the HDH process were tested. The results revealed that the yield of d esalinated water increases as the inletSection 6

– Coalbed Methane (CBM) Section 6.7

– New CBM Data

127 feed temperature increases because the water carrying capacity of the air increases with inlet temperature. Supplemental energy sources for adding heat (solar panels and possibly co

produced geothermal energy) are be ing designed into the second phase field

- scale prototype. Also, employing heat pump technology for enhancing latent heat recovery improves energy efficiency. Heat released by condensation can be transported to the evaporation side of the HDH unit as an additional latent heat source.
Economics of Desalination Technologies
Large

- scale water purification techniques like multi

- stage flash and reverse osmosis achieve operating costs on the order of $0.70 to $1.25 per barrel of treated water when large capaci ty units are employed. These technologies are expensive for small water processing volumes and are not feasible for locations with limited maintenance schedules and energy hookups. Initial evaluation of the results from this project indicates that costs on the order of $0.45 to $0.80 per barrel of treated produced water may be possible for a 20 Bpd capacity system. The main operating costs for the HDH system are related to energy costs for circulating pumps and heating of the inlet feed water.
The HDH proce ss is most efficient at a relative humidity below 60

– 70%. While the “sweet spot” for deployment is in the desert southwest, including highly oil and gas productive regions such as the Permian, San Juan, and Paradox basins, the method would also be applicab le in most Rocky Mountain producing areas and into portions of the Great Plains.

Phase I Results
Phase I of the project involved proof

- of

- concept for the HDH process using a bench

- scale unit (Figs. 1 and 2), with the objective of understanding the influenc es of operational parameters such as feed water temperature, flow rate, carrying air flow rate on purified water quality,
p roductivity, and overall water recovery rate. The results indicated that with a simple tubing

shell structured unit (where the separa tion column was built using a plastic shell column and copper pipes as the humidifier and heat exchanger), over 98% of dissolved salt was removed.
Experiments with produced water from a coalbed methane well indicated that both salt and dissolvable organics were removed efficiently by the HDH process. Total dissolved solids were reduced from 19,800 to 77mg/L while total organic carbon was reduced from 470.2 mg/L to 17.83 mg/L.Section 6

– Coalbed Methane (CBM) Section 6.7

– New CBM Data

128 Phase II Results
The second phase of the project was to design and test a fiel d prototype with a capacity to treat 30 Bpd of water. In these tests the total clean water yield from the process was 18 to 20 percent for the first pass of produced water. This result came after several iterations of design changes to optimize performance . The limit on inlet concentration was also tested and the process showed no drop in performanc e over a range of 8,500 mg/L to 250,000 mg/L of total dissolved solids (TDS). Ion rejection for the process was well over 99 percent with the purified water TDS values in the range of 200 mg/L or less.
The bench scale tests had identified some problems with the design, including insufficient heat transfer within the process chamber and leakage between chambers. Some of the design changes implemented in the field prototype versus the original bench design (see Figure 3) included:

• Simple oil skimmer to separate rem aining oil from produced water Flat plate solar collectors sized to heat 20 Bwpd from 41 °F to 158 °F (during the prototype field testing a steam generator was used in place of the solar panels, which will be activated in Phase III). HDH unit with chambers made with stainless steel weirs designed for evenly spreading the water and cellulose

- based packing material to increase the residence time of the fluid and maximize contact time between air and water (See Figures 4, 5)

• Cold trap to condense and collect purified water (Figure 6) The field deployment of the system, installed in a shipping container, took place at a produced water gathering site in southeastern New Mexico. Throughput of 20 bbls per day during numerous 8

- hour test periods was carried out over 43 days. The field test proved that produced water could be effectively desalinated using the HDH pr ocess, at atmospheric
pressure and relatively low temperatures, with yields of up to 20 percent depending on the system c onfiguration.Section 6

– Coalbed Methane (CBM) Section 6.7

– New CBM Data

129Section 6

– Coalbed Methane (CBM) Section 6.7

– New CBM Data

130 Next Steps: Continued Field Testing
The objective of the current phase of this project is to upscale the HDH proce ss and demonstrate the viability and cost effectiveness of using solar energy to augment the process for continuous operation. The existing field prototype has been tested at up to 20 bbl/8 hours using somewhat arbitrary inlet rates. It should be feasible to triple that throughput and incremental increases to inlet rate may further increase the efficiency of this individual unit.
Solar panels have been sized to produce enough heat to maintain the cycle for 24

- hour operations, even during winter months, wi th automation for continuous feed of produced water and utilizing solar panels and an insulated inlet water storage tank to “bank” heated water for
overcast days and night operation. Additional testing to determine maximum throughput and most efficient throughput rates will be performed. Increased automation and maintenance parameters will be evaluated and put in place to allow unattended operation for days or weeks at a time.
Finally, a full

- scale prototype will be constructed and operated at a field g athering site for a period of two months with the goal of reducing disposed water to less than 20% of original volume. Based on field testing with the prototype it is expected that with deployment of solar energy the electricity consumption for the HDH sys tem can be reduced to 0.16 kWh per barrel and overall produced water purification cost to about $0.18/barrel, considerably lower than that for commercial RO desalination processes and deep well injection.

Potential Impacts
Many marginal wells that produce less than 10 Bopd are operated near the edge of profitability by small operators, who generally do not own infrastructure for water transportation or facilities for disposal. Produced water must be hauled by truck to dispos al sites, a costly process that can make an otherwise profitable operation uneconomic. This application of cost

- effectiveSection 6

– Coalbed Methane (CBM) Sec tion 6.7

– New CBM Data

131 technology for produced water purification could help to give new life to low

- yield wells, result in a considerable decline in salt wa ter disposal needs, and provide a clean water resource for land

re

- vegetation, oil production operations, or other beneficial uses. In addition, any reduction in deep well injection will reduce the risk of surface water contamination from transported produ ced water, and may also reduce the need for pipelines and associated rights of way, and reduce truck traffic and associated air pollution.

Additional Information
The final report for the first phase of this project has been published and is available at (http://www.rpsea.org/projects/07123

- 05/). For further information about this project, contact Chandra Nautiyal (Chandra.Nautiyal@netl.doe.gov or 281

- 494

- 2488) or Liangxiong Li (Li@prrc.nmt.edu or 575

- 835

- 6721). In addition, two papers have been published or accepted for publication: X. Li, S. Muraleedaaran, L. Li, and R. Lee, “A Humidification Dehumidification Process for Produced Water Purification,” Desalination, in press, 2010. S. Muraleedaaran, X. Li, L. Li, and R. Lee, “Is Reverse Osmosis Effective for Produced Water Purification: Viability and Economic Analysis,” SPE 115952, Presented at the 2009 SPE Western Regional Meeting Held in San Jose, USA, 24

- 26, March 2009.
Technical Project Snapshots

— Water Management
In addition to the projects highlighted in the previous section, a number of other, DOE research efforts focused on the treatment of produced water are summarized below. For details on any of these projects, search on the title or project number at www.netl.doe.gov or contact any of the Technol ogy Managers listed on the front page.

Treatment and Beneficial Reuse of Produced Waters Using a Novel Pervaporation

- Based Irrigation Technology (09123

- 11)
Objective: Develop a user

- friendly model that may be used to assess the feasibility of the PV irrig ation processes in areas defined by different climatic and site

- specific conditions.
Performer: University of Wyoming
Progress: Laboratory tests have been completed. Based on permeate flux performance and observed rejection of salts, the pervaporation irri gation membrane process is a viable treatment technology for CBM produced waters.
Next Steps: Future work will concentrate on pilot site characterization, installation of the pervaporation irrigation (subsurface) lines and commencement of a long

- term test to be followed by product evaluation and an economic assessment
NORM Mitigation and Clean Water Recovery from Marcellus Frac Water (10122

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Objective: Develop a cost

- effective process to recover distilled water and a salable salt product from Marcellus f

rac flowback water.

Performer: GE Global ResearchSection 6

– Coalbed Methane (CBM) Section 6.7

– New CBM Data

132 Progress: Lab and pre

- pilot studies on several Marcellus frac waters have been carried out to establish a pretreatment process for NORM removal and membrane distillation (MD) equipment protection.
Next Step s: GECR wil l conduct pilot validations of Marcellus frac water treatment and water recovery by MD.

Basin

- Scale Produced Water Management Tools and Options, Uinta Basin, Utah (11123

- 08)
Objective: Foster collaboration among producers, users, regulators, an d local water management interests, providing information necessary for effective protection of alluvial aquifers, sustainable produced water management, as well as beneficial use of treated produced water.
Performer: Utah Geological Survey
Progress: Work has been initiated on compilation and analysis within a geographical information systems (GIS) format of past and new information on: thickness, structure, depth, and lithologic nature of all aquifer/reservoir units in the basin from the surface down throu gh the Glen Canyon Group; the regional variations in quality of water, flow direction, and temperature produced from the various shale/tight sand gas reservoirs across the Uinta Basin; the location, saturated volume, and quality of alluvial aquifers; the e xisting infrastructure for water management/reuse; the energy generation potential of geothermal produced waters; and location and geochemical and hydrological characteristics of aquifers used/proposed for disposal of produced water or concentrated brines.
Next Steps: Compilation and statistical analysis of water production quantity and quality to identify and forecast produced water production volume trends for each discrete shale/tight sand
gas producing interval.
Development of Plasma Technology for the Management of Frac/Produced Water (11122

- 31)
Objective: Demonstrate a novel plasma

- induced water softening process.
Performer: Drexel University
Progress: The project was recently awarded and funded.
Next Steps: A coupled vapor

- distillation process will be evaluated and reported

Advanced Treatment of Shale Gas Frac Water to Produce NPDES Quality Water
Objective: Develop a treatment process for flowback water that combines magnetic ballast clarification (MBC) for removal of total suspended solids, metals, and naturally occurring radioactive material, and vortex

- generating and nano filtration membranes for removal of suspended and dissolved solids.

Performer: Southern Research Institute
Progress: The project was recently awarded and funded.Section 6

– Coalbed Methane (CBM) Section 6.7

– New CBM Data

133 Cost

- Effective Treatment of Flowback and Produced Waters via an Integrated Precipitative Supercritical Process
Objective: Evaluate the performance of an integrated precipitative supercritical (IPSC) process for treating fracturing flowback and produced water incorporatin g solids filtering, ultra

- violet light treatment, chemical precipitation, and an advanced supercritical water reactor for removal of ionic salts.
Performer: Ohio University
Progress: The project was recently awarded and funded.
Advancing a Web

- based Tool for Unconventional Natural Gas Development with Focus on Flowback and Produced Water Characterization, Treatment and Beneficial Use (11122

- 53)
Objective: Enhance an existing online produced water management tool by improving functionality and user choices , and enlarging the water quality database to include compositions of fracturing fluids, flow back, produced water, and baseline groundwater and surface water compositions for a variety of shale gas and tight gas plays.

Performer: Colorado School of Mines
Progress: The project was recently awarded and funded.
Development of GIS

- Based Tool for Optimized Fluid Management in Shale Operations
Objective: Develop a GIS

- based Optimized Fluids Management (OFM) tool that will access and analyze industry, regulator y, public, and research databases

, and utilize a computational engine to provide equilibrium chemistry predictions and treatment process designs for a given set of water quality data.
Performer: Colorado State University
Progress: The project was recentl y awarded and funded.
Novel Engineered Osmosis Technology: A Comprehensive Approach to the Treatment and Reuse of Produced Water and Drilling Wastewater (10122

- 39)
Objective: Advance development of the forward osmosis, osmotic dilution, and novel ultra

fil tration processes for treatment of drilling and stimulation wastewater and produced water. These processes utilize osmosis as a driving force to extract pure water from highly impaired
water while minimizing the volume of the concentrated, contaminated str eam

. Performer: Colorado School of Mines
Progress: Investigation of the impact of changes in casting (membrane manufacturing process) parameters and membrane polymers to improve flux and longevity for operations in fouling and scaling environments has begu n. First generation of novel forward osmosis membranes (capillary membranes that enable forced flow on both sides of the membrane and are self

- supported, versus conventional spiral wound membrane modules) manufactured by HTI were received by CSM and testin g is underway.Section 6

– Coalbed Methane (CBM) Section 6.7

– New CBM Data

134 Next Steps: Continue testing of novel membranes and complete characterization of membrane performance relative to more conventional membranes
Response:

EPA thanks the commenter for the additional information and has added the file to the docket for the effluent guidelines plan.Section 6

– Coalbed Methane (CBM) Section 6.8

– Commen ts on Analyses to Evaluate CBM Industry

135 Section 6.8

– Comments on Analyses to Evaluate CBM Industry

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Comment Excerpt Text:
In the Economic Analysis for Treatment Technology for CBM Projects (Economic Analysis), EPA analyzed the impact of only two treatment options

– Ion Exchange and Underground Injection

- on specific coalbed methane projects. Limiting the analysis to these two technologies may have led EPA to overestimate the cost of wastewater discharge requirements. As noted in Section 3.3, Uncertainties and Limitations, EPA’s analysis assumes that treatment costs will rise with inflation, but experie nce demonstrates that costs of treatment technologies often decline as their use becomes more prevalent in a specific industrial category.
EPA has not demonstrated that affordable wastewater treatment technologies can not be identified. EPA should exercis e foresight and pursue development of Guidelines for coalbed methane extraction.
Response:
With respect to coalbed methane discharges, EPA reviewed existing technologies that are capable of reducing total dissolved solids (TDS). In addition to ion exch ange, EPA collected and reviewed information on reverse osmosis, distillation/evaporation, electrodialysis/electrodialysis reversal, and capacitative deionization. EPA also collected and reviewed information on zero discharge technologies other than underg round injection including evaporation/infiltration ponds, land application, livestock watering, and downhole gas water separators ( Technical Development Document for the Coalbed Methane (CBM) Extraction Industry).
ELGs must be based on technologies that ar e available and economically achievable by the regulated industry. See 33 U.S.C. § 1311(b)(2)(A). EPA’s economic analysis showed that, even without potential new effluent guidelines, a large fraction of existing CBM projects are no longer viable, which ma kes finding an economically achievable wastewater treatment technology difficult, if not impossible. Therefore, EPA limited its evaluation to one zero discharge technology and one treatment technology. As described in the Technical Development Document for the Coalbed Methane (CBM) Extraction Industry , EPA selected ion exchange because it is currently the lowest

- cost technology capable of removing TDS from produced water. If ion exchange is not economically achievable, it follows that the other TDS removal technologies would not be, as well. EPA select ed underground injection for evaluation because it eliminates all pollutant discharges to surface water and is currently being used for produced water disposal in all basins except for the Black Warrior and Cahaba. As explained in Section 4 of the Technica l Development Document for the Coalbed Methane (CBM) Extraction Industry , other zero discharge technologies may not be available in all basins.

EPA’s Economic Analysis for Existing and New Projects in the Coalbed Methane Industry provides additional inform ation on the Agency’s economic analysis. EPA concluded that theSection 6

– Coalbed Methane (CBM) Section 6.8

– Comments on Analyses to Evaluate CBM Industry

136 addition of potential new effluent guidelines requirements would substantially burden the economic/financial performance of new CBM projects and would further delay project viability by a sign ificant number of years for most projects, regardless of the growth of the use of natural
gas or the financial return sought by CBM project developers. Therefore, EPA decided to delist the CBM extraction subcategory from the effluent guidelines plan and di scontinue the rulemaking. EPA notes that although it is not developing national effluent guidelines for the CBM extraction subcategory, CBM discharges to surface water require an NPDES permit and such permits require technology

- based effluent limitations

-- in the absence of a national ELG, developed using best professional judgment

-- as well as any more stringent limitations necessary to meet state water quality standards. See 33 U.S.C. § 1311(b)(1)(C) and § 1342(a)(1); 40 CFR 125.3(c)(2). See also the comment response in Section 6.1.3 for additional information on CBM permitting.Section 7

– Chlorine and Chlorinated Hydrocarbons (CCH) Section 7.1

– Support to Delist CCH

137 Section 7

– Chlorine and Chlorinated Hydrocarbons (CCH)

Section 7.1

– Support to Delist CCH

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– 1 Organization: American Chemistry Council Commenter Name: Judith Nordgren Commenter Type: Trade Association

Comment Excerpt Text:
The results of the collaborative efforts by EPA and industry to evaluate CCH dischar ges showed that best available treatment technologies are being utilized at sites that have the highest potential for dioxin discharges to the wastewater. Based on its analysis, EPA determined that effluent guidelines for CCH manufacturing were not needed. ACC commends EPA's continued commitment to evaluating and addressing potential sources of waste water discharges to identify opportunities to reduce environmental impacts and we support EPA's proposal to discontinue effluent guideline related rulemaking for the CCH manufacturing industry.
Response:
EPA agrees with the commenter that effluent guidelines for chlorine and chlorinated hydrocarbon (CCH) manufacturing are not appropriate at this time. After thoroughly reviewing all of the dioxin sampling dat a and evaluating public comments received on the Preliminary 2012 Plan, EPA has decided not to move forward with the development of effluent guidelines for the CCH manufacturing industry. EPA calculated very low TWPE annual discharges for all PVC manufactu rers for which data were available. Similarly, EPA calculated very low TWPE annual discharges for all but one of the chlorine manufacturing facilities for which data were collected. Although vinyl chloride manufacturers discharge the majority of dioxin fo r the CCH manufacturing industry, one facility accounts for the vast majority of dioxin being discharged. In addition, the majority of chlorinated hydrocarbon manufacturing facilities have wastewater treatment technology that would potentially match "best available technology" for the industry. EPA, therefore, has determined that it would be appropriate to address the few facilities with significant dioxin discharges through permitting rather than through the development of nationally applicable effluent gu idelines.

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– 1 Organization: Vinyl Institute Commenter Name: Richard P. Krock Commenter Type: Trade Association

Comment Excerpt Text:
The VCP agrees with and supports EPA’s decision to delist the CCH manufacturing sector from the Effluent Limit Guideline rulemaking, as it is consistent with the results of the Voluntary Alternative D/F Program. The VCP program showed that at that time current effluent levels wereSection 7

– Chlorine and Chlori nated Hydrocarbons (CCH) Section 7.1

– Support to Delist CCH

138 superior to international benchmark stan dards and that the pollutants of concerns could be addressed on a regional basis.
On behalf of the VCP, the Vinyl Institute wishes to express appreciation to EPA for allowing industry to submit its data and supportive comments regarding this important wat er regulation.
Vinyl Institute Comments on EPA Preliminary 2012 Effluent Guidelines Program Plan and 2011 Annual Effluent Guideline Review Report; [EPA

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- ZA18
Response:
See response to EPA

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– Chlorine and Chlorinated Hydrocarbons (CCH) Section 7.2

– New CCH Data

139 Section 7.2

– New CCH Data

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– 1 Organization: Westlake Vinyls Company Commenter Name: Wayne Stock Commenter Type: Industry

Comment Excerpt Text:
Westlake Geismar Complex submits the following comment regarding Chlorine and Chlorinated Hydrocarbon Data Collection and Analysis Summary (enclosed) dated February 2012. Appendix B (page 13) incorrectly includes the Westlake Geismar, LA facility in the PVC Only category when it should be included in the Integrated Facilities Catego ry like the Westlake Calvert City, KY facility.
Response:
The information provided by the commenter supports EPA's decision not to, at this time, undertake a rulemaking to revise the effluent limitations guidelines and standards for facilities that prod uce chlorine and chlorinated hydrocarbons (CCH) within the Organic Chemicals, Pesticides, and Synthetic Fibers point source category, as well as the Inorganic Chemicals Manufacturing point source category. It also supports EPA’s decision to delist CCH

man ufacturing from the Final 2012 Plan. EPA has included the information provided by the commenter in the record for the Final 2012 Plan.
See also EPA's response to EPA

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– 1 Organization: Natural Resources Defense Council Commenter Name: Amy Mall Commenter Type: Environmental Organization

Comment Excerpt Text:

While Docket ID No. EPA

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‐ 0824 has sinc e closed for comments regarding the Preliminary 2012 Effluent Guidelines Program Plan, I am writing on behalf of NRDC, the Western Organization of Resource Councils, and the Powder River Basin Resource Council to bring new information to EPA’s attention th at is extremely relevant to this decision.
The Preliminary 2012 Effluent Guidelines Program Plan states that EPA is proposing to delist the coalbed methane extraction industry from the effluent guidelines plan based on new information regarding the declini ng prevalence and economic viability of this subcategory.
The Bureau of Land Management (BLM), however, is currently in the process of revising the Resource Management Plan for the Buffalo Field Office Area in Wyoming. As part of that process, the BLM is r elying on a Reasonable Foreseeable Development Scenario (RFDS) for oil and gas finalized in 2012. That Scenario foresees the development of more than 10,000 new coalbed methane wells in this one area alone during the planning period. This is just one more example of how coalbed methane production is still a very active industry that will likely continue to discharge large amounts of wastewater in the years to come. The RFDS is attached for EPA’s information. We also want to bring to EPA’s attention that the RFDS for the Buffalo Field Office Area includes thousands of more wells that are not from coalbed methane formation, nor from shale. This fact, along with similar plans to develop non

‐ shale wells in other areas, reinforces our view that the EPA should be issuing effluent guidelines for discharges from all oil and gas activities, not only shale and coalbed methane.
Response:
EPA notes that this comment was received after the closing date of the public comment period on the Preliminary 2012 Effluent Guidelines Plan, and thus EPA has no obligation to respond. Nevertheless, EPA disagrees with the commenter about the current need for effluent limitations guidelines (ELGs) for the coalbed methane (CBM) extraction industry, for the reasons noted elsewhere in responses to comments, including in the responses to EPA

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- 10. The B LM document provided by the commenter contains a projection about CBM wells in one specific geographic area. EPA notes that the commenter’s assessment of the BLM study is incomplete because it does not consider the economic impact of regulation on the proj ected development of the CBM industry in the studied geographic area, as EPA’s study does. Furthermore, EPA has used information from other reliable sources, including the Energy Information Administration, to conclude that, on a national basis, potential new effluent guidelines requirements would impose a substantialSection 8

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141 economic/financial burden on new CBM projects and are therefore not expected to be economically achievable for the industry as a whole.