Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Proposed Rules 60199 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 403 

[OW–2005–0024; 7980–3] 

RIN 2040–AC58 

Availability of and Procedures for 

Removal Credits 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Advance notice of proposed 

rulemaking. 

SUMMARY: Today’s Advance Notice of 

Proposed Rulemaking (ANPRM) seeks 

comment on two issues concerning the 

removal credits provisions in the 

General Pretreatment Regulations. EPA 

requests comments on whether to 

amend the list of pollutants for which 

removal credits are available to add 

certain pollutants. The pollutants that 

the Agency would add are those that 

EPA previously has determined, after an 

exposure and hazard screening, would 

not require sewage sludge regulations. 

EPA is also soliciting comment on 

options to amend the ‘‘consistent 

removal’’ provision in the removal 

credits regulations that would be 

consistent with a decision of the U.S. 

Court of Appeals for the Third Circuit. 

DATES: Comments must be received on 

or before December 13, 2005. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. OW–2005– 

0024 by one of the following methods: 

Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

Agency Web site: http://www.epa.gov/ 

edocket. EDOCKET, EPA’s electronic 

public docket and comment system, is 

EPA’s preferred method for receiving 

comments. Follow the on-line 

instructions for submitting comments. 

E-mail: OW-Docket@epa.gov. Please 

specify Docket ID No. OW–2005–0024 

in the body of the message. 

Mail or Hand Delivery/Courier: Water 

Docket, Environmental Protection 

Agency, Mailcode 4101T, 1200 

Pennsylvania Ave., NW., Washington, 

DC 20460, Attention Docket ID No. OW– 

2005–0024. Please include a total of two 

copies. Hand deliveries/couriers are 

only accepted during the Docket’s 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. OW–2005–0024. EPA’s 

policy is that all comments received 

will be included in the public docket 

without change and may be made 

available online at http://www.epa.gov/ 

edocket, including any personal 

information provided, unless the 

comment includes information claimed 

to be Confidential Business Information 

(CBI) or other information whose 

disclosure is restricted by statute. Do 

not submit information that you 

consider to be CBI or otherwise 

protected through EDOCKET, 

regulations.gov, or e-mail. The EPA 

EDOCKET and the federal 

regulations.gov websites are 

‘‘anonymous access’’ systems, which 

means EPA will not know your identity 

or contact information unless you 

provide it in the body of your comment. 

If you send an e-mail comment directly 

to EPA without going through 

EDOCKET or regulations.gov, your email address will be automatically 

captured and included as part of the 

comment that is placed in the public 

docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses. For additional information 

about EPA’s public docket visit 

EDOCKET on-line or see the Federal 

Register of May 31, 2002 (67 FR 38102). 

For additional instructions on 

submitting comments, go to Section I.B1 

of the preamble. 

Docket: All documents in the docket 

are listed in the EDOCKET index at 

http://www.epa.gov/edocket. Although 

listed in the index, some information is 

not publicly available, i.e., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

is not placed on the Internet and will be 

publicly available only in hard copy 

form. Publicly available docket 

materials are available either 

electronically in EDOCKET or in hard 

copy at the Water Docket, EPA/DC, EPA 

West, Room B102, 1301 Constitution 

Ave., NW., Washington, DC 20004. The 

Public Reading Room is open from 8:30 

a.m. to 4:30 p.m., Monday through 

Friday, excluding legal holidays. The 

telephone number for the Public 

Reading Room is (202) 566–1744, and 

the telephone number for the Water 

Docket is (202) 566–2426. 

FOR FURTHER INFORMATION CONTACT: 

Jennifer Chan, Water Permits Division, 

Office of Wastewater Management 

(4203M), Environmental Protection 

Agency, 1200 Pennsylvania Ave., NW., 

Washington, DC 20460; phone number: 

(202) 564–0995; fax number: (202) 564– 

6431; e-mail address: 

chan.jennifer@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General Information 

A. Does This Action Apply to Me? 

Entities potentially affected by this 

action are governmental entities 

responsible for implementation of the 

National Pretreatment Program and 

industrial facilities subject to 

Pretreatment Standards and 

requirements. These entities include: 

Category Examples of regulated entities 

Local government ............................................... Publicly Owned Treatment Works (POTWs). 

State government ............................................... States and Tribes acting as Pretreatment Program Control Authorities or as Approval Authorities. 

Industry ............................................................... Industrial Users of POTWs. 

Federal Government ........................................... EPA Regional Offices Acting as Pretreatment Program Control Authorities or as Approval Authorities. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

regulated by this action. This table lists 

the types of entities that EPA is now 

aware could potentially be regulated by 

this action. Other types of entities not 

listed in the table could also be 

regulated. To determine whether your 

organization or facility is regulated by 

this action, you should carefully 

examine the applicability criteria in 40 

CFR 403.1 and 40 CFR 403.7. If you 

have questions about the applicability of 

this action to a particular entity, consult 

the person listed in the preceding FOR

FURTHER INFORMATION CONTACT section. 

60200 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Proposed Rules 

B. What Should I Consider as I Prepare 

My Comments for EPA? 

When submitting comments, 

remember to: 

1. Identify the rulemaking by docket 

number and other identifying 

information (subject heading, Federal 

Register date and page number). 

2. Follow directions—The Agency 

may ask you to respond to specific 

questions or organize comments by 

referencing a Code of Federal 

Regulations (CFR) part or section 

number. 

3. Explain why you agree or disagree; 

suggest alternatives and substitute 

language for your requested changes. 

4. Describe any assumptions and 

provide any technical information and/ 

or data that you used. 

5. If you estimate potential costs or 

burdens, explain how you arrived at 

your estimate in sufficient detail to 

allow for it to be reproduced. 

6. Provide specific examples to 

illustrate your concerns, and suggest 

alternatives. 

7. Explain your views as clearly as 

possible. 

8. Make sure to submit your 

comments by the comment period 

deadline identified. 

II. Overview of Removal Credits 

A. What are the Existing Rules Relating 

to Removal Credits? 

Section 307(b)(1) of the Clean Water 

Act (CWA) directs EPA to establish 

categorical Pretreatment Standards in 

order to prevent interference with 

POTW operation and pass through of 

inadequately treated pollutants. 

Because, in certain instances, POTWs 

could provide some or all of the 

treatment of an Industrial User’s 

wastewater that would otherwise be 

required pursuant to the Pretreatment 

Standard, the Act also authorizes a 

discretionary program for POTWs to 

grant ‘‘removal credits’’ to their 

Industrial Users. Removal credits are a 

regulatory mechanism by which 

Industrial Users may discharge a 

pollutant in quantities that exceed what 

would otherwise be allowed under an 

applicable categorical Pretreatment 

Standard because it has been 

determined that the POTW to which the 

Industrial User discharges consistently 

removes the pollutant. 

Section 307(b)(1) establishes a threepart test that a POTW must meet in 

order to obtain removal credit authority 

for a given pollutant. Removal credits 

may be authorized only if (1) the POTW 

‘‘removes all or any part of such toxic 

pollutant,’’ (2) the POTW’s ultimate 

Discharge would ‘‘not violate that 

effluent limitation or standard which 

would be applicable to that toxic 

pollutant if it were discharged’’ directly 

rather than through a POTW, and (3) the 

POTW’s Discharge would ‘‘not prevent 

sludge use and disposal by such 

[POTW] in accordance with section 

[405] * * *’’ (Sec. 307(b)). EPA 

promulgated removal credit regulation 

that are codified at 40 CFR 403.7 (See 

43 FR 27736, 46 FR 9404, 49 FR 31212, 

and 52 FR 42434). 

Under 40 CFR 403.7, POTWs are 

authorized to grant removal credits if 

they meet the conditions outlined in 40 

CFR 403.7(a)(3). One condition is 

POTWs must demonstrate and continue 

to achieve ‘‘consistent removal’’ of the 

pollutant. ‘‘Consistent removal’’ is 

defined at 40 CFR 403.7(b). Another 

condition is removal credits may only 

be made available for pollutants that are 

listed in Appendix G, Table I of Part 403 

for the sludge use or disposal practice 

employed by the POTW, when the 

requirements in 40 CFR Part 503 are 

met, or for pollutants listed in Appendix 

G, Table II of this part when the 

concentration for a pollutant in the 

sewage sludge does not exceed the 

concentration for the pollutant in 

Appendix G, Table II. In addition, 

removal credits may be made available 

for any pollutant in sewage sludge when 

the POTW disposes all of its sewage 

sludge in a municipal solid waste 

landfill unit that meets the criteria in 40 

CFR Part 258. 

B. Third Circuit Court Decision 

The U.S. Court of Appeals for the 

Third Circuit in NRDC v. EPA, 790 F.2d 

289 (3rd. Cir. 1986), struck down the 

1984 provisions of EPA’s General 

Pretreatment regulations (49 FR 31212) 

concerning removal credits on the 

grounds that EPA had not promulgated 

the comprehensive sewage sludge 

regulations required by CWA section 

405 sludge regulations. In the course of 

the decision, the court also determined 

that the definition of ‘‘consistent 

removal’’ in the regulations failed to 

implement the requirements of the 

CWA. The court held that the definition 

violated a statutory requirement that 

direct and indirect dischargers be held 

to the same standards and that EPA’s 

definition of consistent POTW removal, 

i.e. removal that is achieved only 50% 

of the time, violated section 307(b)(1) of 

the CWA. 

In 1987, the Agency replaced the 1984 

‘‘consistent removal’’ provision with the 

1981 provision (46 FR 9404). See 52 FR 

42434. On February 19, 1993, EPA 

promulgated the first round of sewage 

sludge regulations, 40 CFR Part 503, (58 

FR 9248) and included those pollutants 

regulated in 40 CFR Part 503 in 

Appendix G of 40 CFR Part 403, Table 

I, Regulated Pollutants in Part 503 

Eligible for a Removal Credit. Those 

pollutants not regulated in 40 CFR Part 

503 and that the Agency was no longer 

considering for the sewage sludge 

regulations were included in Appendix 

G of 40 CFR Part 403, Table II, 

Additional Pollutants Eligible for a 

Removal Credit. 

C. What is the Status of EPA’s Review 

of the Existing Part 503 Sewage Sludge 

Regulations? 

The CWA requires EPA to review the 

sewage sludge regulations every two 

years to identify additional toxic 

pollutants in sewage sludge that may 

warrant regulation under section 405(d). 

Under a recent biennial review cycle, 

EPA evaluated publicly available 

information on the toxicity, persistence, 

concentration, mobility, and potential 

for exposure of additional toxic 

pollutants in sewage sludge. In a late 

2003 Federal Register notice, EPA 

outlined a final action plan (68 FR 

75531) for reviewing its sewage sludge 

regulations in response to a 2002 

National Research Council (NRC) report 

that identified a need to update the 

scientific basis of Part 503. In that 

notice, EPA also presented the results of 

its studies to identify additional toxic 

pollutants that might be candidates for 

future sewage sludge regulations. EPA 

identified fifteen pollutants from a list 

of 803 pollutants for further evaluation 

and possible regulation. These 15 

pollutants, listed below, had a Hazard 

Quotient (HQ) equal to or greater than 

one and thus failed the screening. The 

HQ is the ratio of the magnitude of 

exposure of the receptor organism 

(humans, aquatic organism) to the 

human health or ecological benchmark. 

EPA will obtain updated concentration 

data and conduct a refined risk 

assessment using the data to determine 

whether to propose amendments to Part 

503. 

• Acetone 

• Anthracene 

• Barium 

• Beryllium 

• Carbon disulfide 

• Chloroaniline, 4-; p-Chloroaniline 

• Diazinon 

• Fluoranthene 

• Manganese (from drinking water) 

• Methyl ethyl ketone; 2-Butanone 

• Nitrate (as Nitrate-nitrogen) 

• Nitrite (as Nitrate-nitrogen) 

• Phenol 

• Pyrene 

• Silver 

The Federal Register notice (68 FR 

75531, December 31, 2003) includes 

Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Proposed Rules 60201 

timeframes for taking action on these 

pollutants. Once this action is taken, 

Appendix G of the Pretreatment 

regulation would be modified to add the 

additional pollutants if warranted. 

Additional biennial review cycles will 

occur per section 405(d)(2)(C) of the 

CWA. 

EPA also determined that there was 

sufficient toxicological and exposure 

data for 25 pollutants to conclude that 

these pollutants would not require 

regulation under Part 503. (With respect 

to five of these 25 pollutants, EPA has 

reevaluated its determination because 

they are undergoing current IRIS 

(Integrated Risk Information System) or 

Office of Pesticide Program 

reassessment.) These 5 pollutants are 

listed below: 

• Benzoic acid 

• Butyl benzyl phthalate 

• Dichloroethene, 1, 2-trans- 

• Dichloromethane; Methylene 

chloride 

• Dioxane, 1,4- 

The remaining 20 pollutants, listed in 

Section III.A., have undergone EPA’s 

rigorous exposure and hazard screening 

which includes a probabilistic model of 

14 potential pathways to humans and 

ecological endpoints. 

III. Solicitation of Comments 

This section of the ANPRM describes 

the two issues EPA is soliciting 

comments on. 

1. Whether EPA should propose to 

amend the list of pollutants eligible for 

removal credits to add the 20 pollutants 

for which the Agency has completed an 

exposure and hazard screening. 

2. Whether there are any options to 

amend the ‘‘consistent removal’’

provision in the removal credits 

regulations that would be consistent 

with the earlier Third Circuit decision. 

A. What Action Could EPA Take To 

Amend the List of Eligible Pollutants 

EPA did not propose any changes to 

the list of pollutants eligible for removal 

credits or any modifications to the 

procedures for obtaining removal credits 

in the 1999 proposed Pretreatment 

Streamlining Rule (64 FR 39564). (EPA 

notes that the Agency did propose to 

change the methodology used for 

adjusting removal credits to account for 

system overflows in 40 CFR 403.7(h). 

See Section III.H. of today’s final 

Pretreatment Streamlining Rule.) A 

number of commenters asked EPA to 

consider changes to the regulations to 

allow greater availability of removal 

credits for a broader range of pollutants. 

More specifically, these commenters 

suggested that EPA further streamline 

the regulations to make removal credits 

available for pollutants EPA is no longer 

considering for the sewage sludge 

regulations (40 CFR Part 503). EPA 

notes that certain pollutants that it 

evaluated and is no longer considering 

for the sewage sludge regulations are 

listed in Appendix G of the 40 CFR Part 

403, Table II and are eligible for removal 

credits. Moreover, as explained above, 

EPA is at this time evaluating whether 

to amend the sewage sludge regulations. 

During any resulting rulemaking, 

interested parties may submit 

information and background data to 

EPA that would support amendments to 

Appendix G to add additional 

pollutants for which removal credits 

will be available. 

In addition, a POTW or Industrial 

User may petition the Agency to 

establish a Part 503 standard or an 

amendment to Part 403, Appendix G for 

a pollutant. The petition must contain 

documentation consistent with the 

records of decision underlying current 

Appendix G listings. Data must be 

included on the toxicity, fate effects, 

and environmental transport properties 

of individual pollutants adequate to 

allow EPA to construct a Part 503 

numerical standard, or to allow EPA to 

make a finding that the concentration of 

the pollutant in sewage sludge is not 

sufficient to create a reasonable 

probability of negative human health or 

environmental impact from that 

pollutant contained in the sewage 

sludge considering the specific sewage 

sludge use or disposal practice being 

employed by the POTW. See the 

Federal Register notice dated December 

31, 2003 (68 FR 75531) for the exposure 

and hazard assessment needed for 

pollutant to be considered for removal 

credits. 

As discussed in section II.C. of the 

preamble, there are 20 pollutants that 

did not fail EPA’s exposure and hazard 

screening. These pollutants, listed 

below, could potentially qualify for 

removal credits. 

• Acetophenone 

• Azinphos methyl 

• Biphenyl, 1,1- 

• Chlorobenzene; Phenyl chloride 

• Chlorobenzilate 

• Chlorpyrifos 

• Cresol, o-; 2-Methylphenol 

• Endrin 

• Ethyl p-nitrophenyl 

phenylphosphororthioate; EPN; Sanox 

• Hexachlorocyclohexane, alphaHexachlorocyclohexane, beta- 

• Isobutyl alcohol 

• Methyl isobutyl ketone (MIBK); 

Methyl-2-pentanone, 4- 

• Naled 

• N-Nitrosdiphenylamine 

• Trichlorofluoromethane 

• Trichlorophenoxy propionic acid, 

2-2,4,5-; Silvex 

• Trichlororphenoxyacetic acid, 

2,4,5-; 2,4,5-T 

• Trifluralin 

• Xylenes (mixture) 

EPA could develop upper 

concentrations for these pollutants and 

add them to Appendix G of 40 CFR Part 

403, Table II through an amendment to 

the Pretreatment rule. EPA requests 

comment on whether the addition of 

any of these 20 pollutants to Appendix 

G would be helpful to POTWs and IUs 

in applying for removal credits. 

Depending on the response, EPA would 

then consider whether to develop a 

schedule for proposing an amendment 

to Appendix G of 40 CFR Part 403, 

Table II. 

B. Consistent Removal Demonstration 

EPA did not propose any changes to 

how a POTW demonstrates ‘‘consistent 

removal’’ in the 1999 Proposed 

Pretreatment Streamlining Rule and did 

not receive comment on this issue. 

However, in a draft 2004 Report to 

Congress on the Costs and Benefits of 

Federal Regulation prepared by the 

Office of Management and Budget 

(OMB), OMB requested public 

nominations of specific regulations, 

guidance documents and paperwork 

requirements that, if reformed, could 

result in lower costs, greater 

effectiveness, enhanced 

competitiveness, more regulatory 

certainty and increased flexibility. 

These nominations, along with agency 

responses, were compiled in OMB’s 

March, 2005 report on Regulatory 

Reform of the U.S. Manufacturing 

Sector. One of the reform nominations 

that OMB received suggested that the 

procedures POTWs must follow to get 

authority for removal credits are unduly 

burdensome and thus make removal 

credits unduly difficult to obtain. The 

commenter asserted that the required 

testing procedures do not accurately 

reflect the actual pollutant removal 

capability of the POTW and cited as 

example the requirement under 40 CFR 

403.7(b) which requires that the POTW 

calculate the removal rate based on the 

average of the lowest half of the removal 

measurements taken according to listed 

procedures. The commenter 

recommended revisions to more 

accurately reflect the total removal by 

the POTW, and modifications to 

facilitate the granting of authority when 

justified. 

With respect to the commenter’s 

concern about ‘‘consistent removal’’, 

EPA notes that its options are 

constrained by the Third Circuit’s 

60202 Federal Register / Vol. 70, No. 198 / Friday, October 14, 2005 / Proposed Rules 

decision. However, EPA is requesting 

comment on whether there are any 

options to amend the consistent removal 

provision that would simplify or 

improve the process for obtaining 

removal credits that would be consistent 

with the restrictions previously 

established by the court. 

Dated: September 27, 2005. 

Stephen L. Johnson, 

Administrator. 

[FR Doc. 05–20000 Filed 10–13–05; 8:45 am] 

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