United States

Environmental Protection

Agency

Response to Comments for the 

Preliminary 2012 Effluent Guidelines 

Program Plan

September 2014
This page intentionally left blank
ii

U.S. Environmental Protection Agency

Office of Water (4303T)

1200 Pennsylvania Avenue, NW

Washington, DC 20460

Docket EPA-HQ-OW-2010-0824

www.regulations.gov

DCN 07979
This page intentionally left blank
Table 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 ............................................................ 58
Table 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

Section 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 CBM........................................................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......................... 140
This page intentionally left blank
Introduction

1

Introduction

This document contains EPA’s responses to the public comments received on the Preliminary

Effluent Guidelines Program Plan for 2012. 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 annual 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 published a notice inviting comment on the preliminary plan on 

August 7, 2013 (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-HQ-OW-2010-0824).

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 Contents 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 associated responses. 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 distinguishes 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-HQ-OW-2010-

0824-0211-A2 - 1” identifies the first comment from the comment letter with the online docket 

number EPA-HQ-OW-2010-0824-0211, 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-HQ-OW-2010-0824-0211) 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-HQ-OW-2010-0824-0218-A2 –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 

within 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 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.

Comment 

Excerpt 

Identifiers

A horizontal line denotes the end of each comment excerpt group and related responses.

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-HQ-OW-2010-0824-0198-A1 Northern Plains Resource Council 6.2.1, 6.2.2, 6.2.3, 6.3, 6.4, 6.5, and 6.6

EPA-HQ-OW-2010-0824-0200-A2 Westlake Vinyls Company 7.2

EPA-HQ-OW-2010-0824-0201-A1 Independent Petroleum Association of America (IPAA) 6.1.1, 6.1.2, 6.1.3, 6.1.4, and 6.1.5

EPA-HQ-OW-2010-0824-0202-A1 Western Energy Alliance 6.1.2, 6.1.3, and 6.1.6

EPA-HQ-OW-2010-0824-0203-A1 CONSOL Energy, Inc. 6.1.6

EPA-HQ-OW-2010-0824-0204-A1 American Chemistry Council 7.1

EPA-HQ-OW-2010-0824-0205-A1 Montana Petroleum Association, Inc. 6.1.2, 6.1.3, and 6.1.4

EPA-HQ-OW-2010-0824-0206-A1 Vinyl Institute 7.1

EPA-HQ-OW-2010-0824-0207-A1 Tuscaloosa County Commission 6.1.2 and 6.1.3

EPA-HQ-OW-2010-0824-0208-A1 Independent Oil and Gas Association of West Virginia 6.1.1, 6.1.2, 6.1.3, and 6.1.7

EPA-HQ-OW-2010-0824-0209-A1 Pioneer Natural Resources USA, Inc. 6.1.1, 6.1.2, and 6.1.6

EPA-HQ-OW-2010-0824-0210-A1 Ohio Oil and Gas Association 6.1.1, 6.1.2, 6.1.3, and 6.1.6

EPA-HQ-OW-2010-0824-0211-A2 Cook Inletkeeper 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6

EPA-HQ-OW-2010-0824-0212-A2 WPX Energy, Inc. 6.1.2, 6.1.3, and 6.1.6

EPA-HQ-OW-2010-0824-0213-A2 Freezer Longline Coalition 4.1, 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, and 4.9

EPA-HQ-OW-2010-0824-0214-A1 American Petroleum Institute 6.1.2, 6.1.3, and 6.1.6

EPA-HQ-OW-2010-0824-0215-A1 Coalbed Methane Association of Alabama 6.1.1

EPA-HQ-OW-2010-0824-0217-A2 National Association of Clean Water Agencies (NACWA) 5.1, 5.2, 5.3, 5.4, and 5.5

EPA-HQ-OW-2010-0824-0218-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-HQ-OW-2010-0824-0219-A2 American Forest & Paper Association (AF&PA) 1.15

EPA-HQ-OW-2010-0824-0220-A2 Clean Water Action et al. 6.2.2, 6.2.3, 6.4, 6.5, 6.6, and 6.8

EPA-HQ-OW-2010-0824-0221-A3 Native Village of Eklutna (NVE) 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6

EPA-HQ-OW-2010-0824-0222-A2 Enervest Operating, LLC 6.1.2

EPA-HQ-OW-2010-0824-0223-A1

Perkins Cole on behalf of the At Sea Processors Association and the Pacific 

Seafood Processors Association 4.9

EPA-HQ-OW-2010-0824-0224-A1 Petroleum Association of Wyoming 6.1.2 and 6.1.6
Index 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-HQ-OW-2010-0824-0225 Natural Resources Defense Council 6.7

EPA-HQ-OW-2010-0824-0226 Wyoming Outdoor Council & Powder River Basin Resource Council 6.2.2

EPA-HQ-OW-2010-0824-0227 Natural Resources Defense Council 8.1
Index 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-HQ-OW-2010-0824-0204-A1 7.1

American Forest & Paper Association (AF&PA) EPA-HQ-OW-2010-0824-0219-A2 1.15

American Petroleum Institute EPA-HQ-OW-2010-0824-0214-A1 6.1.2, 6.1.3, and 6.1.6

Association of Clean Water Administrators (ACWA) EPA-HQ-OW-2010-0824-0218-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-HQ-OW-2010-0824-0220-A2 6.2.2, 6.2.3, 6.4, 6.5, 6.6, and 6.8

Coalbed Methane Association of Alabama EPA-HQ-OW-2010-0824-0215-A1 6.1.1

CONSOL Energy, Inc. EPA-HQ-OW-2010-0824-0203-A1 6.1.6

Cook Inletkeeper EPA-HQ-OW-2010-0824-0211-A2 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6

Enervest Operating, LLC EPA-HQ-OW-2010-0824-0222-A2 6.1.2

Freezer Longline Coalition EPA-HQ-OW-2010-0824-0213-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-HQ-OW-2010-0824-0208-A1 6.1.1, 6.1.2, 6.1.3, and 6.1.7

Independent Petroleum Association of America (IPAA) EPA-HQ-OW-2010-0824-0201-A1 6.1.1, 6.1.2, 6.1.3, 6.1.4, and 6.1.5

Montana Petroleum Association, Inc. EPA-HQ-OW-2010-0824-0205-A1 6.1.2, 6.1.3, and 6.1.4

National Association of Clean Water Agencies (NACWA) EPA-HQ-OW-2010-0824-0217-A2 5.1, 5.2, 5.3, 5.4, and 5.5

Native Village of Eklutna (NVE) EPA-HQ-OW-2010-0824-0221-A3 3.1, 3.2, 3.3, 3.4, 3.5, and 3.6

Natural Resources Defense Council EPA-HQ-OW-2010-0824-0225 6.7

Natural Resources Defense Council EPA-HQ-OW-2010-0824-0227 8.1

Northern Plains Resource Council EPA-HQ-OW-2010-0824-0198-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-HQ-OW-2010-0824-0210-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-HQ-OW-2010-0824-0223-A1 4.9

Petroleum Association of Wyoming EPA-HQ-OW-2010-0824-0224-A1 6.1.2 and 6.1.6

Pioneer Natural Resources USA, Inc. EPA-HQ-OW-2010-0824-0209-A1 6.1.1, 6.1.2, and 6.1.6

Tuscaloosa County Commission EPA-HQ-OW-2010-0824-0207-A1 6.1.2 and 6.1.3

Vinyl Institute EPA-HQ-OW-2010-0824-0206-A1 7.1

Western Energy Alliance EPA-HQ-OW-2010-0824-0202-A1 6.1.2, 6.1.3, and 6.1.6

Westlake Vinyls Company EPA-HQ-OW-2010-0824-0200-A2 7.2

WPX Energy, Inc. EPA-HQ-OW-2010-0824-0212-A2 6.1.2, 6.1.3, and 6.1.6

Wyoming Outdoor Council & Powder River Basin Resource Council EPA-HQ-OW-2010-0824-0226 6.2.2
Section 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-HQ-OW-2010-0824-0218-A2 –15

Orgniazation: Association of Clean Water Administrators (ACWA)

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 

within 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 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-HQ-OW-2010-0824-0218-A2 –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 to 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-HQ-OW-2010-0824-0218-A2 –12

Organization: Association of Clean Water Administrators (ACWA)

Commenter Name: Susan Kirsch

Commenter 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 thresholds 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)3stated: “[W]ithout a more thorough and 

integrated screening approach that both uses improved hazard data and considers information on 

treatment technology, EPA cannot be certain that the effluent guidelines program 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 metal 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 represent 

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) and 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 for 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, and 
Section 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 industrywide 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 additional 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 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 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 

treatment 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 wishes 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 reviewed 

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 specific 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 finds 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 guidelines are warranted.
Section 1 – ELGs General

Section 1.4 – Preliminary 2012 Plan Timeliness

10

Section 1.4 – Preliminary 2012 Plan Timeliness

Comment Number: EPA-HQ-OW-2010-0824-0218-A2 –3

Organization: Association of Clean Water Administrators (ACWA)

Commenter Name: Susan Kirsch

Commenter Type: State Representing Organization

Comment 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 December 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 review 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 Plan 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 received 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-HQ-OW-2010-0824-0218-A2 –1

Organization: Association of Clean Water Administrators (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 2012 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 Preliminary 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 for 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 expand 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 discharges 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 appropriate. 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 Pulp, 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 industry 
Section 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 categories 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 that 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 not 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 is 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 pretreatment 

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 that 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 development of guidance and technical support materials, where 

warranted.
Section 1 – ELGs General

Section 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 Type: State Representing Organization

Comment Excerpt Text: 

States provide the following more detailed suggestions regarding EPA’s proposed improvements 

to the ELG planning process, plus some additional suggestions:

a. Information regarding innovative pollution 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 regarding 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 innovative, 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 consider 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, supplemented 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 Water’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; the 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 methods.

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 industrial wastewater 

treatment technology (IWTT) database. EPA intends to use the IWTT database in its screening 
Section 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 wastewater 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 industrial 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 Organization

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 sources 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 shares 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 Report, EPA is making available the report along with the 

Final 2012 Plan and 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 continuously 

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 guidelines 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: 

The 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 Address 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 Plan together with the Preliminary 2014 Plan 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 of 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 General

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 effluent 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 categories 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 significant 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 

additional 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 previously 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 

manufacturing 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 Chemical 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 of 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 which 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 

State 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 1.13 – 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 that 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 surveys 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 developed 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 effluent 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 discharging 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, pollutants 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 discharged 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 potentially 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 analysis (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 manufacturing 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 appropriate to develop new or revised effluent guidelines for industries discharging 

these types of chemicals. For example, when such dischargers can be better addressed through 
Section 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 industry, 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: Jerry 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, based 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 further 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 industry 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.
Section 2 – Metal Finishing

Section 2.1 – Review of Metal Finishing Category

26

Section 2 – Metal Finishing

Section 2.1 – Review of Metal Finishing Category

Comment 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 new 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 

contemporary 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 

effluent 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 information 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, particularly 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 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 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 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 country. The reasons included:16

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 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 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.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 in 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, although the 

geology of the region had not changed, technical advances had enabled the installation of grindand-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 platform had been established. This new platform 
Section 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) 

requested 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 been 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 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 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 SUPPORT DOCUMENT, supra, at 5-225.
Section 3 – Coastal Oil and Gas (O&G)

Section 3.1 – Current 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 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.

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 coastal 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 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 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 country. 

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 appear 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 unemployment. 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 exemption 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 grindand-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 Inlet 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 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 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 despite 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 discharge 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: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-3.
Section 3 – Coastal Oil and Gas (O&G)

Section 3.2 – Remove Cook Inlet Exemption

32

Section 3.2 – Remove Cook Inlet Exemption

Comment Number: EPA-HQ-OW-2010-0824-0211-A2 – 1

Organization: Cook Inletkeeper

Commenter Name: Suzanne Bostrom and Sarah Mackie

Commenter Type: Environmental Organization

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 its investigation into the 

Cook Inlet Oil & Gas effluent guidelines requirements in the 2014 Final Plan.

Comment Number: EPA-HQ-OW-2010-0824-0211-A2 – 9

Organization: Cook Inletkeeper

Commenter Name: Suzanne Bostrom and Sarah Mackie

Commenter Type: Environmental Organization

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 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 

completely 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 
Section 3 – Coastal Oil and Gas (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 Effluent Guidelines Program Plan and remove the exemption of Cook Inlet 

from the nationwide zero discharge requirement.

Response: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-1.

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 1

Organization: Native Village of Eklutna (NVE)

Commenter Name: Marc Lamoreaux

Commenter Type: Tribal Government

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: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-1.

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 9

Organization: Native Village of Eklutna (NVE)

Commenter Name: Marc Lamoreaux

Commenter Type: Tribal Government

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 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 

completely 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 for 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.

Response: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-1.
Section 3 – 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

Comment Number: EPA-HQ-OW-2010-0824-0211-A2 – 2

Organization: Cook Inletkeeper

Commenter Name: Suzanne Bostrom and Sarah Mackie

Commenter Type: Environmental Organization

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 previous 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 subsistence, 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)

Section 3.3 – CWA Goals Not Attained in Cook Inlet

36

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 2

Organization: Native Village of Eklutna (NVE)

Commenter Name: Marc Lamoreaux

Commenter Type: Tribal Government

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.”3To 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 he 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 precious permits. This is particularly troubling given the renewed interest in oil and

gas exploration in Cook Inlet.

NVE has serious concerns about the continuing 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 millions 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 longer 

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.

Response: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-2.
Section 3 – Coastal Oil and Gas (O&G)

Section 3.4 – Cook Inlet Environmental Impacts

37

Section 3.4 – Cook Inlet Environmental Impacts

Comment Number: EPA-HQ-OW-2010-0824-0211-A2 – 4

Organization: Cook Inletkeeper

Commenter Name: Suzanne Bostrom and Sarah Mackie

Commenter Type: Environmental Organization

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 United 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 region, 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 invaluable 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 large 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 Cook 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 billion 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 Tyonek, 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 from Cook 

Inlet-related sources than for most non-native individuals, many of those living in these 
Section 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 of 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 

include “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, mussels, algae, seals and sea 

lions. Clams and mussels were observed to have thinner and sometimes transparent shells.”32

A 2003 EPA study33 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 pollutants 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; 35as 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).37Significantly, 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. Direct 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.

Response: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-6.
Section 3 – Coastal Oil and Gas (O&G)

Section 3.4 – Cook Inlet Environmental Impacts

40

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 4

Organization: Native Village of Eklutna (NVE)

Commenter Name: Marc Lamoreaux

Commenter Type: Tribal Government

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 species 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 

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 Cook 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 billion 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. 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. Subsistence 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 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 from Cook Inlet-related sources 

than for most non-native individuals, 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 the 
Section 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 observed 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 significantly 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 deformed 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 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.

iv. Commercial & Recreational Fishing

Cook Inlet is an internationally 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 cleanliness 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 visitors 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 area.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 – Cook 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.

Response: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-6.
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

Comment Number: EPA-HQ-OW-2010-0824-0211-A2 – 5

Organization: Cook Inletkeeper

Commenter Name: Suzanne Bostrom and Sarah Mackie

Commenter Type: Environmental Organization

Comment Excerpt Text: 

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 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 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-andinject facilities for drilling wastes in the Cook Inlet region in 1999 and 2002, respectively, 

demonstrating the technological feasibility of injecting drilling waste 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.

Comment Number: EPA-HQ-OW-2010-0824-0211-A2 – 7

Organization: Cook Inletkeeper

Commenter Name: Suzanne Bostrom and Sarah Mackie

Commenter Type: Environmental Organization

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 industry. 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-to-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 reducing 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 24.

49 Id.

Response: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-5.

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 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 outdated 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 problems 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 Inlet 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-OW-2010-0824-0211-A2-5.
Section 3 – Coastal Oil and Gas (O&G)

Section 3.5 – Availability of Zero Discharge Technology

45

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 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 upto-date cost analysis would show that the costs to implement a zero discharge requirement would 

now be significantly 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 

disposal 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-OW-2010-0824-0211-A2-5.
Section 3 – Coastal Oil and Gas (O&G)

Section 3.6 – Economic Feasibility of Zero Discharge Technology

46

Section 3.6 – Economic Feasibility of Zero Discharge Technology

Comment Number: EPA-HQ-OW-2010-0824-0211-A2 – 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 2002, 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 found 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 increase 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 parts 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 field.

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 Inlet 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-2010-0824-0211-A2 – 8

Organization: Cook Inletkeeper

Commenter Name: Suzanne Bostrom and Sarah Mackie

Commenter Type: Environmental Organization

Comment Excerpt 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 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. In fact, with two new jack-up rigs drilling 

for the past two years in Cook Inlet, drilling activity has taken a wholly different 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-HQ-OW-2010-0824-0211-A2-6.

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 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 the 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 

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.39

In 2004, EPA found the oil industry in Cook Inlet to be “marginal.”40 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 2008.41

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 in 
Section 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 pay 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-2010-0824-0211-A2-6.

Comment Number: EPA-HQ-OW-2010-0824-0221-A3 – 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 development 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 changed economic and technological circumstances since 1996.

Response: 

Please see the response to EPA-HQ-OW-2010-0824-0211-A2-6.
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-2010-0824-0213-A2 – 1

Organization: Freezer 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 Advisor 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 requirements, 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 necessary 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 identify 

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 feasible 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 

process 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-G52-4000.
Section 4 – Seafood Processing

Section 4.2 – Off-shore Processor Applicability

51

Section 4.2 – Off-shore Processor Applicability

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 3

Organization: Freezer Longline Coalition

Commenter Name: Chad I. See

Commenter Type: Trade Association

Comment Excerpt Text: 

1.) Authorized Discharges

Discharges 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.3EPA also identified the control and treatment

technology in existence and used within 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

population or processing centers including but not limited to Anchorage, Cordova, Juneau,

Ketchikan, Kodiak, and Petersburg.”5These processors are required to meet effluent standards

based on effluent characteristics such as total suspended solids, oil and grease, 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, EPA 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.8EPA 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 conditions, 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, costeffective alternatives such as solids recovery techniques or disposal. 10 This distinction provided 

the basis for EPA to adopt the grind-size requirement for remote processors. 11
Section 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 member 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 develop 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-HQ-OW-2010-0824-0213-A2-1.
Section 4 – Seafood Processing

Section 4.3 – Revise General Permit Requirements

53

Section 4.3 – Revise General Permit Requirements

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 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 expense 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 rationale 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 whether these particular practices are 

necessary to continue long-term.

Response: 

See response to EPA-HQ-OW-2010-0824-0213-A2-1.
Section 4 – Seafood Processing

Section 4.4 – Quarterly Monitoring

54

Section 4.4 – Quarterly Monitoring

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 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. This 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 taking 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 testing 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 the 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 plastic 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 the 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 for 
Section 4 – Seafood Processing

Section 4.4 – Quarterly Monitoring

55

this return is around $75.00 each21, regardless 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 vessel 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 than 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 producing 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 in 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 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 4.5 – Remote Processor Economic Impacts

56

Section 4.5 – Remote Processor Economic Impacts

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 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 technologybased standards on remote 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 the 

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 projected 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 plant.”)

Response: 

See response to EPA-HQ-OW-2010-0824-0213-A2-3.
Section 4 – Seafood Processing

Section 4.6 – Non-Water Quality Impacts

57

Section 4.6 – Non-Water Quality Impacts

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 6

Organization: Freezer Longline Coalition

Commenter Name: Chad I. See

Commenter Type: Trade Association

Comment 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, slime, 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 grinders.

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 today17 in Dutch 

Harbor 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-HQ-OW-2010-0824-0213-A2-1.
Section 4 – Seafood Processing

Section 4.7 – Grind Size Environmental Impacts

58

Section 4.7 – Grind Size Environmental Impacts

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 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 thus 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-HQ-OW-2010-0824-0213-A2-1.

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 7

Organization: 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 “codpaste” and enters the water; without 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 more environmentally friendly 

method of returning nutrients that have known consumers in the ecosystem.

Response: 

See response to EPA-HQ-OW-2010-0824-0213-A2-1.
Section 4 – Seafood Processing

Section 4.8 – Small Vessel Grinder Feasibility

59

Section 4.8 – Small Vessel Grinder Feasibility

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 – 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 noted 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 length18 and the Amendment 80 (A80) trawl CP 

vessels range in size from 105 to 295 feet in length19. 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 differentiation 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 our 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 

Bering 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 member 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 flown 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_illustration.php

19 http://groundfishforum.org/

20 http://www.uscgnews.com/go/doc/4007/1719247/Coast-Guard-crews-medevac-injuredfisherman-near-St-Paul-Alaska
Section 4 – Seafood Processing

Section 4.8 – Small Vessel Grinder Feasibility

60

Response: 

See response to EPA-HQ-OW-2010-0824-0213-A2-1.
Section 4 – Seafood Processing

Section 4.9 – Mobile Seafood Processing

61

Section 4.9 – Mobile Seafood Processing

Comment Number: EPA-HQ-OW-2010-0824-0213-A2 –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, specifically 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 State 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 under 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 environment while exploring ways to streamline business, 

reduce unnecessary regulatory burden, and keep America working.

Response: 

See response to EPA-HQ-OW-2010-0824-0213-A2-1.

Comment Number: EPA-HQ-OW-2010-0824-0223-A1 – 1

Organization: Perkins Cole on behalf 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 ASSOCIATION
Section 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 Bottom Fish, Alaskan Herring

Fillets, West Coast Hand-Butchered Salmon, West Coast Mechanized Salmon, West Coast NonAlaskan 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 Seafood 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 documents1prepared to support the ELGs, address mobile

seafood processing vessels 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 Best 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 because 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 seeks 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 are 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 uniquely 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

(defined 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 Seafood 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 subcategory 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 SUPPORTING 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 processing 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.

Second, 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 reduction benefits derived 

...and shall take into account the engineering aspects of the application of various types of 
Section 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 processing 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 while 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 processing

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 operating 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, the 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 below, 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 be

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 not relevant to mobile seafood

processing vessels. That document states, in part:
Section 4 – Seafood Processing

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 areas 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 moving

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

mobile 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 species, 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 (EPA230/1-74-047) ; "Evaluation of Waste Disposal 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 Document 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 reflects 

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, Inc ., 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 technology 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 on 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 

Petition 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 considering 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-HQ-OW-2010-0824-0217-A2 – 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 October 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 the 

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 surrounding 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 would 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 concerned 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.

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.

Comment Number: EPA-HQ-OW-2010-0824-0217-A2 – 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 Uncertainty
Section 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 Reclamation 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 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 5.2 – Drop Rule

69

Section 5.2 – Drop Rule

Comment Number: EPA-HQ-OW-2010-0824-0217-A2 – 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 POTWs. 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 

discharges 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 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 5.3 – Communication with EPA

70

Section 5.3 – Communication with EPA

Comment Number: EPA-HQ-OW-2010-0824-0217-A2 – 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” into 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, 

the 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) category 

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 become 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 dentist 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 to 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 change 
Section 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 community.

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 Dental Amalgam Separator Programs

Comment Number: EPA-HQ-OW-2010-0824-0217-A2 – 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 Narragansett 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 other 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 the 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-1990s 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 limit 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 

funding 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 

San 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 Bay 
Section 5 – Dental Amalgam

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 flexibility 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 mercury 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-HQ-OW-2010-0824-0217-A2 – 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 for 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 amalgam 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 events. 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 mercury 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 Joint 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 biosolids 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 the 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 and $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 influent 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 pressing 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 rulemaking.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

76

Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

Section 6.1.1 General Support to Delist CBM

Comment Number: EPA-HQ-OW-2010-0824-0201-A1 – 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 Guideline (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 comments 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 information 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.epa.gov/scitech/wastetech/guide/oilandgas/upload/cbmea2013.pdf.)

Comment Number: EPA-HQ-OW-2010-0824-0208-A1 – 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 unsupportable.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

77

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-1.

Comment Number: EPA-HQ-OW-2010-0824-0209-A1 – 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 America (IPAA), 

the Petroleum Association of Wyoming (PAW), and the Western Energy Alliance (WEA), 

Pioneer supports EPA in delisting the Coalbed Methane (CBM) Extraction subcategory from the

Effluent Guidelines Plan.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-1.

Comment Number: EPA-HQ-OW-2010-0824-0210-A1 – 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 delist 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 Association 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 existing

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 disposal 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: 

See response to EPA-HQ-OW-2010-0824-0201-A1-1.

Comment Number: EPA-HQ-OW-2010-0824-0210-A1 – 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 unwarranted 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 Association strongly supports U.S. EPA’s decision to delist the CBM

subcategory from the Effluent Guidelines Plan.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-1.

Comment Number: EPA-HQ-OW-2010-0824-0215-A1 – 1

Organization: Coalbed Methane Association 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 current 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 production 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 subcategory from the effluent 

guidelines plan is prudent and justified because of the adverse economic impact to this particular 
Section 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-1.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

80

Section 6.1.2 Change in Economics of Industry

Comment Number: EPA-HQ-OW-2010-0824-0201-A1 – 5

Organization: Independent Petroleum Association of America (IPAA)

Commenter Name: Lee O. Fuller

Commenter Type: Trade Association

Comment Excerpt Text: 

EPA has now released its Economic Analysis for Existing and New Projects in the Coalbed

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 

approximately 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 viability 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 economically 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 considered 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 shut 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 under 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 basins 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 (17 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, additional 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 indicated 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 experience 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 most 

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 opportunities, 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 and/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 that 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 explains 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 production 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 produce 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 well 

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, Appendix 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 were 

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 2012. 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 and 
Section 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 effluent 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 document provides more information about EPA’s analysis.

Comment Number: EPA-HQ-OW-2010-0824-0201-A1 – 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 would 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: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0202-A1 – 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 various 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 demonstrated 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)

Section 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 projects.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0205-A1 – 3

Organization: Montana Petroleum Association, Inc.

Commenter Name: David Galt

Commenter Type: Trade Association

Comment Excerpt Text: 

Finally, 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0207-A1 – 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

85

Comment Number: EPA-HQ-OW-2010-0824-0208-A1 – 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0209-A1 – 3

Organization: Pioneer Natural Resources USA, Inc.

Commenter Name: Gretchen Kern

Commenter Type: Industry

Comment 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0210-A1 – 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 thwart 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 projects 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 wastewater 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0212-A2 – 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 Plan. 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 without 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0214-A1 – 1

Organization: American Petroleum Institute

Commenter Name: Amy Emmert

Commenter Type: Trade Association

Comment Excerpt Text: 

EPA has correctly recognized 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 the 
Section 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.

Comment Number: EPA-HQ-OW-2010-0824-0222-A2 – 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 industry 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 Enervest' 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 been 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 completely agree with the recent EPA decision to delist further development of 

effluent limitation guidelines.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

88

Comment Number: EPA-HQ-OW-2010-0824-0224-A1 – 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 provided 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 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-5.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

89

Section 6.1.3 Effectiveness of State Regulation

Comment Number: EPA-HQ-OW-2010-0824-0201-A1 – 2

Organization: Independent Petroleum Association of America (IPAA)

Commenter Name: Lee O. Fuller

Commenter Type: Trade Association

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 unregulated 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 BPJ 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 analysis 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 may 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 that 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 system 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 regulations, 

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 majority 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-HQ-OW-2010-0824-0201-A1 – 6

Organization: Independent Petroleum Association of America (IPAA)

Commenter Name: Lee O. Fuller

Commenter Type: Trade Association

Comment Excerpt Text: 

Fourth, it is important to reiterate that where CBM projects are developed, they are developed in

concert with state regulatory agencies to employ wastewater management technologies that have

protected the environment.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0202-A1 – 3

Organization: Western Energy Alliance

Commenter Name: Kathleen M. Sgamma

Commenter Type: Trade Association

Comment Excerpt Text: 

Finally, a delisting of CBM does not mean the industry will go unregulated. It is important to 

emphasize that industry effluent handling is currently regulated by states, and EPA’s decision to 

delist CBM will not affect or lessen state regulation.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0205-A1 – 1

Organization: Montana 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 necessary 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 that 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-HQ-OW-2010-0824-0201-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0207-A1 – 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 of 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-HQ-OW-2010-0824-0201-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0208-A1 – 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 technology-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 discharges associated with CBM operations.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-2.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

92

Comment Number: EPA-HQ-OW-2010-0824-0210-A1 – 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 the 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 challenge. 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0201-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0212-A2 – 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 response to EPA-HQ-OW-2010-0824-0201-A1-2.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

93

Comment Number: EPA-HQ-OW-2010-0824-0214-A1 – 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: 

See response to EPA-HQ-OW-2010-0824-0201-A1-2.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

94

Section 6.1.4 Environmental Benefits

Comment Number: EPA-HQ-OW-2010-0824-0201-A1 – 4

Organization: Independent Petroleum Association of America (IPAA)

Commenter Name: Lee O. Fuller

Commenter Type: Trade Association

Comment Excerpt 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 significant 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 discharges from this industrial subcategory as a 

whole, as discussed in Technical Development Document for the Coalbed Methane (CBM) 

Extraction Industry (EPA-820-R-13-009). 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 permitting may be a 

more appropriate and effective tool than nationally applicable effluent guidelines for addressing 

CBM discharges.

Comment Number: EPA-HQ-OW-2010-0824-0205-A1 – 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-HQ-OW-2010-0824-0201-A1-4.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

95

Section 6.1.5 Unique Characteristics of CBM Production

Comment Number: EPA-HQ-OW-2010-0824-0201-A1 – 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 treatment 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 the 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 straightforward. 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 for 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 volume 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, however, 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 great 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 

acknowledging 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, there 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 technology 
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

96

for controlling discharges from the CBM extraction industry 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 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

97

Section 6.1.6 Decline in Industry and Wastewater Production

Comment Number: EPA-HQ-OW-2010-0824-0202-A1 – 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 agrees 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.

Comment Number: EPA-HQ-OW-2010-0824-0203-A1 – 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 response to EPA-HQ-OW-2010-0824-0202-A1-2.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

98

Comment Number: EPA-HQ-OW-2010-0824-0209-A1 – 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 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0202-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0209-A1 – 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' 

point 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. There 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, Pioneer fully supports EPA in delisting the Coalbed Methane (CBM) Extraction 

subcategory from the Effluent Guidelines Plan.

Response: 

See response to EPA-HQ-OW-2010-0824-0202-A1-2.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

99

Comment Number: EPA-HQ-OW-2010-0824-0210-A1 – 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 underground 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0202-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0212-A2 – 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 are 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 production 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: 

See response to EPA-HQ-OW-2010-0824-0202-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0214-A1 – 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 discharge 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 greatly 

exceeds the number of permits to drill.

Response: 

See response to EPA-HQ-OW-2010-0824-0202-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0224-A1 – 2

Organization: Petroleum Association of Wyoming

Commenter Name: John Robitaille

Commenter Type: Trade Association

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 Effluent Guidelines Program Plan.

Response: 

See response to EPA-HQ-OW-2010-0824-0202-A1-2.
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

101

Section 6.1.7 Other Support to Delist CBM

Comment Number: EPA-HQ-OW-2010-0824-0208-A1 – 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 jurisdiction 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 first 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 requirements 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 that 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 

Technical 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 address 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 unregulated 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, "if appropriate." See CWA Section 304(b), 33 

U.S.C. § 1314(b). In this case, because EPA was unable to identify a treatment technology that 
Section 6 – Coalbed Methane (CBM)

Section 6.1 – Support to Delist CBM

102

would be economically achievable for the CBM industry, EPA found that it would not be 

appropriate to revise the existing oil and gas ELG to address CBM discharges.
Section 6 – Coalbed 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

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 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 ranchers. 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 relatively 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 about 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 

discharges 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 state 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 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 potential 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 
Section 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 

dischargers 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

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 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 the 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 petitioned 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 discharges 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 qualitybased 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 qualityrelated 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 concerned 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 of 
Section 6 – Coalbed Methane (CBM)

Section 6.2 – Opposition 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 industry 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 operators. 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 toxicity 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 financial 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 

extraction subcategory from the effluent guidelines plan and discontinue the rulemaking at this 

time.

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 5

Organization: Northern Plains Resource Council

Commenter Name: Eric VanderBeek

Commenter Type: Environmental Organization

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 the Montana Supreme 

Court in 2008. 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0198-A1-3.
Section 6 – Coalbed Methane (CBM)

Section 6.2 – Opposition to Delist CBM

107

Comment Number: EPA-HQ-OW-2010-0824-0220-A2 – 2

Organization: Clean Water Action et al.

Commenter Name: Lynn Thorp

Commenter Type: Environmental Organization

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 increased public health 

risks from drinking water, threatens fish and wildlife and causes other negative environmental 

impacts.

Response: 

See response to EPA-HQ-OW-2010-0824-0198-A1-3.

Comment Number: EPA-HQ-OW-2010-0824-0226 – 1

Organization: Wyoming Outdoor 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 

Limitation 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 CBM 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 public 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 is 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.3The report also acknowledges a "limited number of 

studies" on the impacts of CBM discharge to streams.4
Section 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 the 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 fisheries 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 produced 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 reconsider all costs associated with the proposal to delist CBM water from 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 Cooperative 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 2012-5008. "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 Water 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 Development 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: 

See response to EPA-HQ-OW-2010-0824-0198-A1-3.
Section 6 – Coalbed Methane (CBM)

Section 6.2 – Opposition to Delist CBM

110

Section 6.2.3 Change in Economics of Industry

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 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 that 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 reason 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 foresight 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 consideration 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 

estimated 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, these 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 

considered 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 projects, 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 

natural 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 the 
Section 6 – Coalbed Methane (CBM)

Section 6.2 – Opposition to Delist CBM

111

financial return sought by CBM project developers. Based on the lack 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 decades, 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 treatment 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 CBM 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 achievable 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 applicable effluent guidelines for addressing 

CBM discharges.

Comment Number: EPA-HQ-OW-2010-0824-0220-A2 – 5

Organization: Clean Water Action et al.

Commenter Name: Lynn Thorp

Commenter Type: Environmental Organization

Comment Excerpt Text: 

EPA’s proposal 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 the 
Section 6 – Coalbed Methane (CBM)

Section 6.2 – Opposition to Delist CBM

112

recent boom in development of shale gas resources.”4The 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 for 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 continue 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 decrease, 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

2014.7EIA 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 signers 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 contamination 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 

technology “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 coalbed 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 industry 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 prices 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 – Coalbed Methane (CBM)

Section 6.2 – Opposition to Delist CBM

113

4 US EPA, Preliminary 2012 Effluent Guidelines Program Plan (Preliminary 2012 Plan), EPA821-R-12-002 (May 2013) at 4-2,4-3

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 LongTerm Production of Coal-Bed Methane,” May 1. 2012 press release.

7 U.S. Energy Information Administration, “Short-Term Energy Outlook,” September 10, 2013.

8 U.S. Energy Information Administration. (2013). Annual Energy Outlook 2013 Early Release.

Response: 

See response to EPA-HQ-OW-2010-0824-0198-A1-10.
Section 6 – Coalbed Methane (CBM)

Section 6.3 – Surface Water Discharge Practices

114

Section 6.3 – Surface Water Discharge Practices

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 6

Organization: Northern Plains Resource Council

Commenter Name: Eric VanderBeek

Commenter Type: Environmental Organization

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 Environmental 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 to 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 Quality1, 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 discharging to the Tongue River (EPA-HQ-OW2010-0824-0168). 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 Industry and the memorandum Ion 

Exchange Vendors in the CBM Industry (EPA-HQ-OW-2010-0824-0159). 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 Environmental 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 Geological Survey completed a study analyzing the cause of annual 

elevated salinity in the Tongue River.3The study evaluated whether an observed, annual shortterm rise in salinity in the Tongue River of northeastern Wyoming is due to natural or 

anthropogenic 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 processes or human 

activities. The results of the study show that CBM produced water can be distinguished from 
Section 6 – Coalbed Methane (CBM)

Section 6.3 – Surface Water Discharge Practices

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 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 has no data that indicates that CBM discharges 

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-HQ-OW-2010-0824-0168). Wyoming notes that permitted discharges 

to the 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 submitting 

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.

3Quillinan, 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, Report of Investigation No. 63, 2012.
Section 6 – Coalbed Methane (CBM)

Section 6.4 – Impacts from Surface Water Discharges

116

Section 6.4 – Impacts from Surface Water Discharges

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 4

Organization: Northern Plains Resource Council

Commenter Name: Eric VanderBeek

Commenter Type: Environmental Organization

Comment 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 March 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 hydrologically 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 CBM 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 surface 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.

According 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 discharges 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-HQ-OW-2010-

0824-0168). In 2009, Fidelity had two permits, one of which authorized 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-HQ-OW-2010-0824-0159).
Section 6 – Coalbed Methane (CBM)

Section 6.4 – 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, 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 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/wastetech/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.3The study 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 Tongue 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 surface 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, December 11, 

2013.

2

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

2013.

3Quillinan, 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, Report of Investigation No. 63, 2012.
Section 6 – Coalbed Methane (CBM)

Section 6.4 – Impacts from Surface Water Discharges

118

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 7

Organization: Northern Plains Resource Council

Commenter Name: Eric VanderBeek

Commenter Type: Environmental Organization

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 irrigators 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 wastewater 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 

Exploration 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 tributaries 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 increase 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 established, 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.

Response: 

See response to EPA-HQ-OW-2010-0824-0198-A1-4.

Comment Number: EPA-HQ-OW-2010-0824-0220-A2 – 3

Organization: Clean Water Action et al.

Commenter Name: Lynn Thorp

Commenter Type: Environmental Organization
Section 6 – Coalbed Methane (CBM)

Section 6.4 – Impacts from Surface Water Discharges

119

Comment Excerpt Text: 

EPA’s Final Coalbed Methane Extraction: Detailed Study Report (Study Report) found that

produced 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 trace 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 discharged 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 Extraction: Detailed Study Report (Detailed Study), EPA-820-R10-022 ( September 2011).

2

Id. at 4-1 through 4-3.

Response: 

See response to EPA-HQ-OW-2010-0824-0198-A1-4.
Section 6 – Coalbed Methane (CBM)

Section 6.5 – Legal Authority

120

Section 6.5 – Legal Authority

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 8

Organization: Northern Plains Resource Council

Commenter Name: Eric VanderBeek

Commenter Type: Environmental Organization

Comment Excerpt Text: 

As explained in the attached May 2009 letter from the Environmental Protection Agency (EPA) 

to the Montana DEQ, Montana needs 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 letter. 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 

eliminating 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 operations, 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). Although 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 

permitting is potentially a more appropriate and effective tool than nationally applicable effluent 

guidelines for addressing CBM discharges.
Section 6 – Coalbed Methane (CBM)

Section 6.5 – Legal Authority

121

Comment Number: EPA-HQ-OW-2010-0824-0220-A2 – 4

Organization: Clean Water Action et al.

Commenter Name: Lynn Thorp

Commenter Type: Environmental Organization

Comment Excerpt Text: 

In the October 2011 Final 2010 Effluent Guidelines Program Plan (Final 2010 Plan), EPA

announced that it would undertake Clean Water Act Effluent Guidelines rulemaking for the

coalbed methane subcategory 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 Preliminary 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. The 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-HQ-OW-2010-0824-0198-A1-8.

Comment Number: EPA-HQ-OW-2010-0824-0220-A2 – 7

Organization: Clean Water Action et al.

Commenter Name: Lynn Thorp

Commenter Type: Environmental Organization

Comment Excerpt Text: 

The Congressional intent underlying the Clean Water Act’s Effluent Guidelines and Limitationssetting 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 sector. 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 environmental impacts.

11 Preliminary 2012 Plan at 2-2.

12 Detailed Study at 3-15.

Response: 

See response to EPA-HQ-OW-2010-0824-0198-A1-8.
Section 6 – Coalbed Methane (CBM)

Section 6.6 – Expansion to Hydraulic Fracturing

123

Section 6.6 – Expansion to Hydraulic Fracturing

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 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. However, 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/wastetech/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 States 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-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 state 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 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 potential 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 basis, 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 technologies 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 

pursuant 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.

Comment Number: EPA-HQ-OW-2010-0824-0198-A1 – 9

Organization: Northern Plains Resource Council

Commenter Name: Eric VanderBeek

Commenter Type: Environmental Organization

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 

drilling. 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: 

See response to EPA-HQ-OW-2010-0824-0198-A1-2.

Comment Number: EPA-HQ-OW-2010-0824-0220-A2 – 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 extraction 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 onshore 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 continue 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 of 
Section 6 – Coalbed Methane (CBM)

Section 6.6 – Expansion to Hydraulic Fracturing

125

process wastewaters from unconventional oil and gas extraction more broadly. As explained in 

the responses to EPA-HQ-OW-2010-0824-NRDC-1 and EPA-HQ-OW-2010-0824-0201-A1-5, 

the rulemaking is not going to address process wastewater from coalbed methane extraction.
Section 6 – Coalbed Methane (CBM)

Section 6.7 – New CBM Data

126

Section 6.7 – New CBM Data

Comment Number: EPA-HQ-OW-2010-0824-0225 – 1

Organization: Natural Resources Defense Council

Commenter Name: Amy Mall

Commenter Type: Environmental Organization

Comment Excerpt Text: 

Testing a Novel Low Temperature Desalination Concept for Wellhead Treatment of Produced 

Water US 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 

incorporate 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 could 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 technologies 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 investigated 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 filled 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 desalinated water increases as the inlet 
Section 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 coproduced geothermal energy) are being 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 capacity 

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 process 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 applicable 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 influences of operational parameters such 

as feed water temperature, flow rate, carrying air flow rate on purified water quality, 

productivity, and overall water recovery rate. The results indicated that with a simple tubingshell structured unit (where the separation 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 field 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 performance 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 remaining 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 process, at atmospheric 

pressure and relatively low temperatures, with yields of up to 20 percent depending

on the system configuration.
Section 6 – Coalbed Methane (CBM)

Section 6.7 – New CBM Data

129
Section 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 process 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, with 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 gathering 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 system 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 disposal sites, a costly process that can

make an otherwise profitable operation uneconomic. This application of cost-effective 
Section 6 – Coalbed Methane (CBM)

Section 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 water 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 

produced 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

Technology 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 

irrigation 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 irrigation 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 (10122-07)

Objective: Develop a cost-effective process to recover distilled water and a salable salt product 

from Marcellus frac flowback water.

Performer: GE Global Research
Section 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 Steps: 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, and 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 through 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 existing 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 incorporating 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, regulatory, 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 recently 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 ultrafiltration 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 stream.

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 begun. 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 testing 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 – Comments on Analyses to Evaluate CBM Industry

135

Section 6.8 – Comments on Analyses to Evaluate CBM Industry

Comment Number: EPA-HQ-OW-2010-0824-0220-A2 – 6

Organization: Clean Water Action et al.

Commenter Name: Lynn Thorp

Commenter Type: Environmental Organization

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 experience 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 exercise 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 exchange, 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 underground 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 are 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 makes 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 selected 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 Technical 

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 information on the Agency’s economic analysis. EPA concluded that the 
Section 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 significant 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 discontinue 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

Comment Number: EPA-HQ-OW-2010-0824-0204-A1 – 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 discharges 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 data 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 

manufacturers 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 for 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 guidelines.

Comment Number: EPA-HQ-OW-2010-0824-0206-A1 – 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 were 
Section 7 – Chlorine and Chlorinated Hydrocarbons (CCH)

Section 7.1 – Support to Delist CCH

138

superior to international benchmark standards 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 water regulation.

Vinyl Institute Comments on EPA Preliminary 2012 Effluent Guidelines Program Plan and 2011 

Annual Effluent Guideline Review Report; [EPA-HQ-OW-2010-0824], RIN 2040-ZA18

Response: 

See response to EPA-HQ-OW-2010-0824-0204-A1.
Section 7 – Chlorine and Chlorinated Hydrocarbons (CCH)

Section 7.2 – New CCH Data

139

Section 7.2 – New CCH Data

Comment Number: EPA-HQ-OW-2010-0824-0200-A2 – 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 Category 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 produce 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 

manufacturing 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-HQ-OW-2010-0824-0204-A1-1.
Section 8 – Late Comments

Section 8.1 – Late Comments Received on the Preliminary 2012 Plan

140

Section 8 – Late Comments

Section 8.1 – Late Comments Received on the Preliminary 2012 Plan

Comment Number: EPA-HQ-OW-2010-0824-0227 – 1

Organization: Natural Resources Defense Council

Commenter Name: Amy Mall

Commenter Type: Environmental Organization

Comment Excerpt Text: 

While Docket ID No. EPA‐HQ‐OW‐2010‐0824 has since 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 that 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 declining 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 relying 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-HQ-OW-2010-0824-

0201-A1-5 and to EPA-HQ-OW-2010-0824-0198-A1-10. The BLM 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 projected 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 substantial 
Section 8 – Late Comments

Section 8.1 – Late Comments Received on the Preliminary 2012 Plan

141

economic/financial burden on new CBM projects and are therefore not expected to be 

economically achievable for the industry as a whole.