Water Pollution: EPA Has Improved Its Review of Effluent Guidelines but Could Benefit from More Information on Treatment Technologies
Released: 2012-10-10T00:00:00

Letter

Background

Tens of thousands of industrial facilities directly discharge wastewater into the waters of the United States and are subject to permit limits on their discharges, which for certain industries are determined by effluent guidelines set by EPA under the Clean Water Act. For certain industries, EPA issues a similar type of regulation—pretreatment standards— applicable to facilities that are indirect dischargers; that is, their effluent goes to wastewater treatment plants, which then discharge the collected and treated wastewater into a water body. To establish pollutant control limits for different pollutants in these guidelines or standards, EPA groups industrial facilities into categories that have similar products or services. To date, EPA has issued effluent guidelines or pretreatment standards for 58 industrial categories. EPA has issued effluent guidelines for 57 of the 58 categories and pretreatment standards for 35 of the 58 categories.Table 1 lists industrial categories that are regulated by effluent guidelines and pretreatment standards. According to EPA, there are approximately 35,000 to 45,000 direct dischargers covered by effluent guidelines and about 10,000 facilities that discharge indirectly to wastewater treatment plants.

Before an industrial facility discharges pollutants, it must receive a permit that is to, at a minimum, incorporate any relevant pollutant limits from EPA’s effluent guidelines. Where needed to protect water quality as determined by standards set by individual states, NPDES permits may include limits more stringent than the limits in the guidelines. NPDES permits for direct dischargers are issued by 1 of the 46 states authorized by EPA to issue them and by EPA elsewhere. Unlike direct dischargers, indirect dischargers, which do not discharge to surface waters, do not require an NPDES permit. Instead, an indirect discharger must meet EPA’s national pretreatment standards and may have to meet additional pretreatment conditions imposed by its local wastewater treatment plant.Under the national pretreatment standards and conditions, an indirect discharger is required to remove pollutants that may harm wastewater treatment plant operations or workers or, after treatment and discharge, cause violations of the wastewater treatment plant’s permit. Figure 1 illustrates both types of facilities subject to regulation.

To get an NPDES permit, industrial facilities’ owners—like any source discharging pollutants as a point source—must first submit an application that, among other things, provides information on their proposed discharges. Water quality officials in authorized states and EPA regional offices responsible for the NPDES program in the four nonauthorized states review these applications and determine the appropriate limits for the permits. Those limits may be technology-based effluent limits, water quality-based effluent limits, or a combination of both. Technology-based limits must stem from either effluent limitation guidelines, when applicable, or from the permit writer’s best professional judgment when no applicable effluent limitation guidelines are available. Using best professional judgment, permit writers are to develop technology-based permit conditions on a case-by-case basis, considering all reasonably available and relevant information, as well as factors similar to those EPA uses in developing guidelines for national effluent limitations. A permit writer should also set water quality-based limits more stringent than technology-based limits if necessary to control pollutants that could cause or contribute to violation of a state’s water quality standards. To support each permit, permit writers are supposed to develop a fact sheet, or similar documentation, briefly summarizing the key facts and significant factual, legal, methodological, and policy questions considered. The fact sheet and supporting documentation also serve to explain to the facility, the public, and other interested parties the rationale and assumptions used in deriving the limitations in the permit.

Facilities with NPDES permits are required to monitor their discharges for the pollutants listed in their permits and to provide monitoring reports with their results to their permitting authority (the relevant state, tribal, or territorial agency authorized to issue NPDES permits or, in nonauthorized locations, EPA). For facilities designated by EPA regional administrators and the permitting authorities as major facilities, the permitting authorities are in turn required to transfer the monitoring report data to EPA headquarters. These reports, known as discharge monitoring reports, are transmitted electronically and stored in an electronic database or reported in documents and manually entered into the electronic database for use by EPA in reviewing permit compliance. required to report the discharge monitoring results from all remaining facilities, known as minor facilities, to EPA but may do so. According to EPA, there are about 6,700 major and 40,500 minor facilities covered by NPDES permits.

EPA and the states are making a transition from one national database, known as the Permit Compliance System, to another known as the Integrated Compliance Information System: NPDES. The states are divided in their use of the two databases. Consequently, two databases contain discharge-monitoring reports. In our report, however, we refer to them collectively as “the database.”

Facilities may also be required to report data to EPA’s Toxics Release Inventory on their estimated wastewater discharges. This inventory contains annual estimates of facilities’ discharges of more than 650 toxic chemicals to the environment. One of the inventory’s primary purposes is to inform communities about toxic chemical releases to the environment, showing data from a wide range of mining, utility, manufacturing, and other industries subject to the reporting requirements. As such, although the inventory is unrelated to the NPDES program, the Toxics Release Inventory contains estimated discharges of toxic pollutants for many NPDES-permitted facilities. Not all industrial categories covered by effluent guidelines—the oil and gas industrial category, for example—are necessarily required to report to the inventory.

Effluent Guidelines Program

Under the Clean Water Act, EPA must establish effluent guidelines for three categories of pollutants—conventional, toxic, and nonconventional pollutants—and several levels of treatment technology. As defined in EPA’s regulations, conventional pollutants include biological oxygen demand, total suspended solids, fecal coliform bacteria, oil and grease, and pH.

The Clean Water Act designates toxic pollutants as those chemicals listed in a key congressional committee report, which contains 65 entries, including, arsenic, carbon tetrachloride, and mercury, as well as groups of pollutants, such as halomethanes. Nonconventional pollutants are any pollutants not designated as a conventional or toxic pollutant; for example, EPA has developed limitations for such nonconventional pollutants as chemical oxygen demand,carbon, and the nutrients nitrogen and phosphorus.

The act authorizes EPA to establish effluent limits for these three pollutant categories according to several standards; the standards generally reflect increasing levels of treatment technologies. A treatment technology is any process or mechanism that helps remove pollutants from wastewater and can include filters or other separators, biological or bacteria-based removal, and chemical neutralization. Legislative history of the Clean Water Act describes the expectation of attaining higher levels of treatment through research and development of new production processes, modifications, replacement of obsolete plans and processes, and other improvements in technology, taking into account the cost of treatment. Under the act, the effluent limits do not specify a particular technology to be used but instead set a performance level based on one or more particular existing treatment technologies. Individual facilities then have to meet the performance level set but can choose which technology they use to meet it.

Under the act, EPA was to issue initial guidelines for existing facilities on the basis of the “best practicable control technology currently available” for conventional, toxic, and nonconventional pollutants—guidelines to be achieved by 1977—followed by guidelines set on the basis of “best available technology economically achievable” for toxic and nonconventional pollutants and “best conventional pollutant control technology” for conventional pollutants. The act also called for guidelines known as “new source performance standards,” which would apply to new facilities starting operations after such standards were proposed. When permitting authorities develop a permit, they apply standards most appropriate to a given facility: For example, a new facility would receive a permit with limits reflecting the new source performance standards. Existing facilities would generally receive permits with limits reflecting the best conventional technology and best available technology, but where those standards have not been issued, permit limits would reflect best practical treatment. Table 2 shows the different levels of treatment established in the act and the category of pollutant to which they apply.

The Clean Water Act requires EPA to annually review all existing effluent guidelines and revise them if appropriate, and also to review existing effluent limitations at least every 5 years and revise them if appropriate. The Water Quality Act of 1987 added two related requirements to EPA’s reviews. First, EPA is to identify, every 2 years, potential candidates for new effluent guidelines, namely, industries that are discharging significant, or nontrivial, amounts of toxic or nonconventional pollutants that are not currently subject to effluent guidelines. Second, every 2 years beginning in 1988, EPA is required to publish a plan establishing a schedule for the annual review and revision of the effluent guidelines it has previously promulgated. In response to these two requirements, EPA published its first effluent guidelines program plan in 1990, which contained schedules for developing new and revised effluent guidelines for several industrial categories.

From the start of the effluent guidelines program in the early 1970s, EPA has faced considerable litigation, with industry challenging most of the industry-specific effluent guidelines. As the agency implemented the program, EPA also faced challenges from environmental groups over its failure to issue guidelines and the process EPA used to screen and review industrial categories. For example, the Natural Resources Defense Council, an environmental organization, brought two suits, each seeking to compel EPA to meet its duties to promulgate effluent limitations for listed toxic pollutants, among other actions. As a result, EPA operated under two key consent decrees establishing court-approved schedules for it to develop and issue effluent guidelines regulations. In addition, under one of the consent decrees, EPA established a task force that operated from 1992 through 2000 and advised the agency on various aspects of the effluent guidelines program. In particular, the task force issued several reports advising EPA on changes to its screening and review process for the effluent guidelines program and recommended that EPA hold a workshop to discuss improvements to the process.

In 2002, after considering the recommendations made by both the task force and the workshop, EPA developed an approach to guide its post- consent decree screening and review, issued in a document called A Strategy for National Clean Water Industrial Regulations. Under this draft strategy, EPA was to evaluate readily available data and stakeholder input to create an initial list of categories warranting further examination for potential effluent guidelines. The strategy identified the following four key factors for EPA to consider in deciding whether to revise existing effluent guidelines or to develop new ones: the extent to which pollutants remaining in an industrial category’s discharge pose a substantial risk to human health or the environment; the availability of a treatment technology, process change, or pollution prevention alternative that can effectively reduce the pollutants and risk; the cost, performance, and affordability of the technology, process change, or pollution prevention measures relative to their benefits; and the extent to which existing effluent guidelines could be revised, for example, to eliminate inefficiencies or impediments to technological innovation or to promote innovative approaches.

The draft strategy also indicated that EPA would apply nearly identical factors to help determine whether it should issue effluent guidelines for industrial categories for which it had not yet done so. The document noted that EPA intended to revise and issue the strategy in early 2003, but EPA has chosen not to finalize it.agency made this choice because its implementation of the process was likely to evolve over time.

EPA officials stated that the Since EPA issued its draft strategy, the agency has faced litigation challenging the use of technology in its screening process. In 2004, EPA was sued by Our Children’s Earth, a nonprofit environmental organization, which alleged that EPA failed to consider technology-based factors during its annual review of industrial categories. On appeal, the Ninth Circuit Court decided in 2008 that the statute did not establish a mandatory duty for EPA to consider such factors. The court found that the statute’s use of the phrase “if appropriate” indicated that decisions on whether to revise guidelines are discretionary but are also constrained by the statute’s mandate as to what effluent guidelines regulations are to accomplish. Further, the court stated that the overall structure of the Clean Water Act strongly suggests that any review to determine whether revision of effluent guidelines is appropriate should contemplate technology-based factors.

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

EPA uses a two-phase process to review industrial categories potentially in need of new or revised effluent guidelines; from 2003 through 2010, the agency identified few such categories. Since 2003, EPA has annually screened all industrial categories subject to effluent guidelines, as well as other industrial categories that could be subject to new guidelines; it has identified 12 categories for further review and selected 3 categories to update or to receive new effluent guidelines.

EPA’s Screening Phase Results in a Subset of Industrial Categories for Further Review

EPA’s screening phase starts with a review of industrial categories already subject to effluent guidelines—as well as industrial categories that are not—to identify and rank those whose pollutant discharges pose a substantial hazard to human health and the environment.and ranks industrial categories using pollutant data from facilities in similar industrial classifications. Before it ranks industrial categories in this screening phase, EPA excludes from consideration any industrial categories where guidelines are already undergoing revision or have been revised or developed in the previous 7 years. For example, EPA EPA analyzes announced in its 2010 final effluent guideline program plan that it excluded the steam electric power-generating category from the screening phase because the agency had already begun revising effluent guidelines for this industry. Also in 2010 EPA excluded the concentrated aquatic animal production category (e.g., fish farming) from screening because the agency issued effluent guidelines in 2004.

In ranking industrial categories during the screening phase, EPA considers the extent to which discharged pollutants threaten human health and the environment—the first factor identified in EPA’s 2002 draft strategy. EPA compiles information from two EPA sources on the facilities within these industrial categories that discharge wastewater, the pollutants they discharge, and the amount of their discharge: (1) the discharge monitoring report database and (2) the Toxics Release Inventory. relative toxicity of pollutant discharges from screened industrial categories, converts these estimates into a single “score” of relative toxicity for each industrial category, and uses this score to rank the industrial categories according to the reported hazard they pose. To determine the relative toxicity of a given pollutant, EPA multiplies the amount (in pounds) of that pollutant by a pollutant-specific weighting factor to derive a “toxic weighted pound equivalent.” EPA’s ranking of one industrial category relative to other categories can vary depending on the amount of the pollutants it discharges or the toxicity of those pollutants. For example, an industrial category, such as pesticide chemicals, may discharge fewer pounds of pollutants than another category, such as canned and preserved seafood processing, but have a higher hazard ranking because of the relative toxicity of the pollutant chemicals it discharges.

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

After ranking industrial categories, EPA identifies those responsible for the top 95 percent of the total reported hazard, which is the total of all industrial categories’ hazard scores. EPA assigns these industrial categories a high priority for further review in the second phase of its review process. As the relative amounts of their discharges change, the number of industrial categories making up this 95 percent can vary each year with each screening EPA performs. From 2003 through 2009, for example, 10 to 13 industrial categories composed the top 95 percent of reported hazard, whereas in 2010, 21 categories made up the top 95 percent. Figure 2 shows the number of industrial categories that EPA considered for possible further review on the basis of its hazard screening.

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

Data used in the ranking process contained errors. After completing its ranking, EPA verifies the pollutant discharge data from the discharge monitoring reports and Toxics Release Inventory and corrects any errors. For example, according to EPA, the agency has found that facilities have reported the wrong unit of measurement in their discharge monitoring reports, or states have transferred data into the EPA database incorrectly. In such cases, a pollutant discharge may, for example, be reported at a concentration of 10 milligrams per liter but in fact be present at a concentration of 10 micrograms per liter—a thousand-fold lower discharge.

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

Other factors. EPA considers other factors in addition to those described above to determine if an industrial category warrants further review. According to EPA, one such factor is inadequate data from which to make a clear determination. For example, in its 2010 screening phase, EPA excluded several industrial categories from the further review phase because it did not have conclusive data but said that it would “continue to review” the categories’ discharges to determine if they were properly controlled. These industries included pulp, paper, and paperboard; plastic molding and forming; and waste combustors.

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

During the screening phase, EPA uses existing industry classifications as the basis for identifying industrial categories. EPA groups these industry classifications, which are identified by one of two standardized coding schemes, into industrial categories that it then considers for effluent guidelines. If EPA identifies an industrial category that does not have effluent guidelines but has discharges that present a potential hazard, it decides whether the category produces a product or performs a service similar to one subject to existing effluent guidelines. If so, EPA generally considers the former category to be a subcategory of the latter. Conversely, if the products or services differ from categories subject to existing guidelines, EPA considers the category as a potential new category. In either case, EPA may decide that the industrial category warrants further review and, possibly, new effluent guidelines.

Throughout the screening phase, EPA also obtains stakeholder and public input, which may identify industrial categories warranting new or revised effluent guidelines that were not identified by their hazard ranking. Stakeholder and public input comes from EPA’s solicitation of comments on its biennial preliminary and final effluent guidelines program plans. For example, in 2004 stakeholders raised concerns about discharges from dental facilities of mercury used in dental fillings; in response, EPA later identified the dental category for further review. On completing the screening phase, the agency lists in its preliminary or final effluent guidelines program plans the industrial categories it has identified for further review. Alternatively, EPA may decide on the basis of its screening criteria that no industrial categories warrant further review.

EPA’s Further Review Phase Results in Few Industrial Categories to Consider for Potential New or Revised Effluent Guidelines

In its further review phase, EPA conducts detailed studies of any industrial categories identified in its screening phase, using the four factors listed in its November 2002 draft strategy to determine whether the categories need new or revised effluent guidelines. Since issuing its draft strategy, EPA has selected 12 industrial categories to move beyond the screening phase to the further review phase. Seven of the categories—for example, the pulp, paper, and paperboard category and the petroleum refining category—were identified for further review on the basis of the risk or toxicity of the pollutants they discharge, and 5 were identified for review on the basis of stakeholder concerns. If the categories are already subject to effluent guidelines that EPA set, the agency studies the need to revise effluent limits in the existing guidelines; if the categories are not subject to existing guidelines, EPA studies the need to develop effluent limits and apply them for the first time. Of the 12 categories selected for further review, 8 were already subject to existing effluent guidelines, and 4 were not.

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

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

During its further review phase, EPA also obtains and analyzes information related to the cost, affordability, and performance of technologies, the third factor in its strategy. To do so, EPA examines the cost and performance of applicable technologies, changes in production processes, or prevention alternatives that may reduce pollutants in the industrial category’s discharge. As part of its cost analysis, the agency considers the affordability or economic achievability of any identified technologies, production processes, or prevention alternatives. To assess the performance of technologies, EPA considers the results of the treatment technologies used in tests or actual operations—information the agency obtains from published research papers and internal and external sources, including site visits and surveys of industrial facilities.its further review of the steam electricity power-generating industry, for example, EPA sampled wastewater directly at power plants, surveyed plant operators about which technologies they were using to minimize pollutant discharges and at what cost, and sought information on other potential treatment technologies.

At the conclusion of its further review of an industrial category, EPA decides whether it is feasible and appropriate to revise or develop effluent guidelines for the category, a decision that includes gathering information on whether an effluent guideline is the most efficient and effective approach to manage the discharges, the fourth factor in EPA’s draft strategy. As shown in table 3, for example, EPA decided that the drinking water treatment industrial category did not require effluent guidelines but that the agency’s study could act as a resource for state permit writers as they issue permits for drinking water facilities. Or, as also shown in table 3 for coalbed methane, EPA decided to develop guidelines that it plans to propose in 2013. Some of the information EPA can consider during this decision making, and some of the information related to the fourth factor in its strategy, is the extent to which existing effluent guidelines could be revised to eliminate inefficiencies or impediments to technological innovation or to promote innovative approaches. Specifically, EPA considers whether another way exists—either regulatory or voluntary—to decrease pollutant discharges. For example, after the further review of the dental facility category in 2008, EPA decided not to develop effluent guidelines but to instead work with the American Dental Association and state water agencies on a voluntary reduction program to reduce pollutant discharges from dental facilities. It later changed its decision because the voluntary effort was shown to be ineffective, and the agency plans to issue effluent guidelines in 2012.

It takes EPA, on average, 3 to 4 years to complete the further review phase for an industrial category. As of July 2012, EPA had identified three industrial categories for which it had decided to revise effluent guidelines—steam electric power generating—or to develop new effluent guidelines—coalbed methane extraction and dental facilities. According to agency documents and officials, EPA has chosen to take no action on the other 9 of the 12 categories it has further reviewed since 2002.

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

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

Limitations in Hazard Data May Have Caused EPA to Overlook Industrial Categories

The two sources EPA relies on during its initial screening process— discharge monitoring reports and the Toxic Release Inventory—have limitations that may affect the agency’s ability to accurately rank industrial categories for further review on the basis of the human health and environmental hazards associated with those categories. Data from industrial facilities’ discharge monitoring reports have the benefit of being national in scope, according to EPA documents, but according to agency officials and some experts we spoke with, these data have several limitations that could lead the agency to underestimate the hazard caused by particular industries. Specifically:

The reports contain data only for those pollutants that facilities’ permits require them to monitor. Under NPDES, states and EPA offices issue permits containing limits for pollutant discharges, but those permits may not include limits for all the pollutants that may be discharged, as for example, if those pollutants are not included in the relevant effluent guidelines or need not be limited for the facility to meet state water quality standards. If a pollutant is not identified in a permit, and hence not reported on discharge monitoring reports, it would not be part of EPA’s calculation of hazard and would not count toward the ranking of industrial categories.

The reports do not include data from all permitted facilities.

Specifically, EPA does not require the states to report monitoring results from direct dischargers classified as minor. According to EPA, the agency in 2010 analyzed data for approximately 15,000 minor facilities, or about 37 percent of the 40,500 minor facilities covered by NPDES permits. As a result, the pollutants discharged by the remaining 25,500 minor dischargers would not be counted as part of the relative toxicity rating and could contribute to undercounting of pollutants from those industrial categories. For example, most coal mining companies in Pennsylvania and West Virginia are considered minor dischargers whose pollutants would not count toward the ranking of that industrial category.

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

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

The data reported are sometimes estimates and not actual monitored data. In some cases, the use of an estimate may overreport actual pollutant discharges. For example, some industry experts said that to be conservative and avoid possible liability, some facilities engaging in processes that produce particularly toxic pollutants, such as dioxin, may report the discharge of a small amount on the basis of an EPA- prescribed method for estimating such discharges even if the pollutant had not been actually monitored.

Not all facilities are required to report to the inventory, which may lead to undercounting the discharges for the industrial categories of which the facilities are a part. Facilities with fewer than 10 employees are not required to report to the inventory, and neither are facilities that do not manufacture, import, process, or use more than a threshold amount of listed chemicals. For example, facilities that manufacture or process lead or dioxin do not need to report to the inventory unless the amount of chemical manufactured or processed reaches 10 pounds for lead or 0.1 grams for dioxin.

Despite the limitations of these data sources, EPA officials said that discharge monitoring reports and the Toxic Inventory Release are the best available data on a national level. Experts we interviewed also generally supported the continued use of these data sources despite their limitations. An EPA official responsible for the screening and review process said that EPA could not quantify the effect of the missing data on its ranking and setting of priorities for industries without time-consuming and expensive collecting of data directly from industrial facilities. Still, agency officials agreed that the data limitations can lead to under- or overestimating the hazard of discharges from industrial categories, which could in turn affect the rankings of these categories and potentially result in different categories advancing for further review and potential regulation.

EPA’s Screening Phase Does Not Consider Treatment Technologies, Omitting Some Industrial Categories from Further Review

EPA’s primary focus during its screening phase is the relative hazard posed by industrial categories, without consideration of available treatment technologies that could be used as the basis for revised effluent guidelines to help reduce pollutant discharges. Because EPA sets the cutoff point in its screening process as industrial categories contributing to 95 percent of total reported hazard, the agency does not consider for further review the categories contributing to 5 percent of the total reported hazard. Although this percentage is low, the categories involved constitute the majority of all industrial categories with effluent guidelines. EPA does not conduct a further review for these and other industrial categories that it has excluded for other reasons, meaning that EPA does not examine them for the availability of more-effective treatment technologies. As previously noted, the Ninth Circuit Court held in 2008 that EPA does not have a mandatory duty to consider technology in its screening process but stated that the act strongly suggests that any review to determine whether revision of effluent guidelines is appropriate should contemplate technology-based factors. Regardless of whether EPA is required to do so, the agency is not considering technology for these industrial categories, and hence EPA cannot ensure that the facilities in these categories are using the best available treatment technology.

EPA Is Adding Hazard Data Sources but Is Not Fully Using Potential Sources of Information on Treatment Technologies

EPA has begun to take actions to improve the hazard data it uses in its screening of industrial categories, but it is not fully using potential sources of information on treatment technologies for consideration in this screening. According to program officials, EPA has recognized that its screening phase has resulted in the same industries rising repeatedly to the top of its hazard rankings. Program officials said that they are considering changes to their screening approach to identify additional industrial categories for further review. The primary change, the officials told us, would be to rank categories according to toxicity every 2 years, rather than annually, and to supplement that ranking with a targeted analysis of additional sources of data. To develop such revisions, officials from EPA’s effluent guidelines program engaged in an informal “brainstorming” exercise within the agency and identified several sources of data on new and emerging pollutants, sources that officials think could help target industrial categories for further review. EPA officials said they will propose revisions to the review process in the 2012 preliminary effluent guidelines program plan they expect to issue late in 2012.

To mitigate the limitations with hazard data that EPA currently experiences, the agency has taken several steps to obtain new sources of information and to improve existing sources. Using additional sources of data is consistent with suggestions made to us by several academic and governmental experts we interviewed that other sources of hazard data may be useful to the agency, including additional monitoring data and data on the quality of water bodies receiving wastewater discharges. The new data sources would broaden the hazard data considered in the screening phase. Among the sources EPA intends to pursue for future use are the following: a 2009 EPA survey of sludge produced by wastewater treatment plants to identify pollutants entering these plants, indicating that they are not being treated by an industrial facility and might need regulation; a review of action plans prepared under EPA’s Office of Pollution Prevention and Toxic Substances for specific chemicals of emerging concern to identify pollutants that are likely to be discharged to waters by industrial point sources; a review of all EPA air pollution regulations issued within the last 10 to15 years to identify new treatment processes that could add to or change the pollutants in wastewater streams; and a review of data and information available concerning industries that EPA is considering for a proposed expansion of required reporting for the Toxics Release Inventory.

EPA is also drafting a rule that would increase the information EPA receives electronically from discharge monitoring reports from NPDES permittees and permitting authorities. According to officials with the effluent guidelines program, increased electronic reporting would result in a more complete and accurate database and improve their access to the hazard data from facilities’ discharge monitoring reports, thereby improving the screening of industrial categories. For example, according to EPA officials, data on minor facilities that are not currently reported into the discharge monitoring database used in the screening process would be reported under the electronic reporting rule, as sent to the Office of Management and Budget for review.

EPA recognizes the need to use information on treatment technologies in the screening phase to improve its process and has taken some initial steps to develop a database of such information, but it has not made full use of potential data sources. EPA started to gather information on treatment technology in 2011, contracting with consultants to obtain relevant literature for the database. In its comments on a draft of this report, the agency said that it will expand on this work in 2013 and 2014 once new fiscal year operating plans are in place. According to agency officials, a thorough analysis of the literature would give the program an updated technology database, which would help in identifying advances in technologies in use or with potential use in industrial categories, which, on the basis of these advances, may in turn warrant further review. They noted that in the 1980s and 1990s, the program used such information from an agency database but that the database had become outdated.

In more than half of our interviews (10 of 17), experts told us that EPA should consider technology in its screening phase, and some of them suggested the following two approaches for obtaining this information:

Stakeholder outreach. Experts suggested that key stakeholders could provide information on technology earlier in the screening process. Currently, EPA solicits views and information from stakeholders during public comment periods following issuance of preliminary and final effluent guidelines plans. According to experts, EPA could obtain up-to-date information and data from stakeholders beyond these formal comment periods. For example, EPA officials could (1) attend annual workshops and conferences hosted by industries and associations, such as engineering associations, or host their own expert panels to learn about new treatment technologies and (2) work with industrial research and development institutes to learn about efforts to reduce wastewater pollution through production changes or treatment technologies.

NPDES permits and related documentation. Experts suggested that to find more information on treatment technologies available for specific pollutants, EPA could make better use of information in NPDES permit documentation. For example, when applying for NPDES permits, facilities must describe which pollutants they will be discharging and what treatment processes they will use to mitigate these discharges. Such information could help EPA officials administering the effluent guidelines program as they seek technologies to reduce pollutants in similar wastewater streams from similar industrial processes. Similarly, information from issued NPDES permits containing the more stringent water quality-based limits— which may lead a facility to apply more advanced treatment technologies—could suggest the potential for improved reductions. Further, information in fact sheets prepared by the permitting authority could also furnish information on pollutants or technologies that could help EPA identify new technologies for use in effluent guidelines.

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

Our analysis of NPDES information, however, showed that EPA has not taken steps to make the information available for use by the effluent guidelines program. For example, the standard list of treatment processes on the NPDES application form has not been updated since 1980, and EPA officials said it was out of date. Yet EPA has not updated this information or provided it to the effluent guidelines program for use in screening available technologies. EPA could have done so through a second rulemaking effort under way to improve NPDES data—in which EPA is updating NPDES application forms to make them more consistent with NPDES regulations and current program practices—but chose not to. Agency documents about this rulemaking described it as modifying or repealing reporting requirements that have become obsolete or outdated over the past 20 years and modifying permit documentation procedures to improve the quality and transparency of permit development. Nonetheless, effluent guidelines program officials said that they did not request potential NPDES permit updates relevant to their program because the scope of this rulemaking was too narrow. EPA’s Office of Wastewater Management, which is responsible for the rulemaking, confirmed that the scope of the proposed rule is to be narrow and not call for states or permittees to provide new information.

Further, fact sheets or similar documentation that NPDES permit writers develop describing the basis for permit conditions are not stored in EPA’s electronic NPDES database and are therefore difficult to obtain and analyze, according to program officials. Instead, these NPDES documents are now maintained by the authorized states or EPA regions and are not readily accessible to the effluent guidelines program.

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

Conclusions

EPA and the nation have made great strides in reducing the pollutants in wastewater discharged from point sources, such as industrial facilities, since the Clean Water Act was passed. EPA’s effluent guidelines program has been key in contributing to these results by establishing national uniform limits on pollutant discharges for various industrial categories. Progress within the program has slowed, however, and numerous effluent guidelines for particular industrial categories have not been revised for 2 or 3 decades, although the act calls for EPA to routinely review its effluent guidelines and update or add to them as appropriate. EPA’s approach for screening and further reviewing industrial categories, as currently implemented, has not identified many categories for the agency to consider for new or revised guidelines, and the screening process has identified many of the same industrial categories year after year. EPA’s approach focuses its resources on the most hazardous sources of pollution, but its reliance on incomplete hazard data during the screening phase has limited the results of the approach, as has EPA’s inability to thoroughly collect treatment technology data within its resource constraints. Under EPA’s current approach, most industrial categories have not received a detailed further review examining the availability of more-effective treatment technologies. According to some experts, consideration of treatment technologies is especially important for older effluent guidelines because changes in either the industrial categories or the treatment technologies are more likely to have occurred, making it possible that new, more advanced and cost-effective treatment technologies have become available. EPA has recently taken steps to obtain more information on treatment technologies for use in its screening phase—which could help make up for limitations in the hazard data it currently uses—but it has not taken steps to improve and gain access to technology information from the NPDES program. Further, EPA is reconsidering its approach to its screening and review process—initially documented in its draft strategy that was never finalized—but has not analyzed a range of possible sources of data to improve the program, including taking full advantage of the NPDES database, obtaining relevant stakeholder input, and reviewing older effluent guidelines for changes in either the industry or available treatment technologies. Without evaluating a range of new sources of relevant information, officials with the effluent guidelines program cannot ensure that the reconsidered approach can be implemented or that it optimizes the agency’s ability to consider technology in the screening process. Most important, without a more thorough and integrated screening approach that both improves hazard information and considers treatment technology data, EPA cannot be certain that the effluent guidelines program is reflecting advances in the treatment technologies used to reduce pollutants in wastewater.

Recommendations for Executive Action

To improve the effectiveness of EPA’s efforts to update or develop new effluent guidelines, we recommend that the Administrator of EPA direct the effluent guidelines program to take the following three actions, as it considers revisions to its screening and review process: Identify and evaluate additional sources of data on the hazards posed by the discharges from industrial categories.

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

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

Agency Comments and Our Evaluation

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

Regarding our first recommendation, that EPA identify and evaluate additional sources of data on the hazards posed by industrial discharges and factor these into its annual reviews, EPA agreed that additional sources of such data are valuable. For this reason, EPA said, it began collecting new sources of hazard information in 2011, which the agency is using in its 2012 annual review. EPA also said that its preliminary 2012 effluent guideline program plan will solicit additional ideas for new hazard data sources from the public and industry stakeholders. We described EPA’s ongoing and planned efforts in our report, but because the agency has not yet published its preliminary 2012 effluent guideline program plan, we cannot determine the extent to which these efforts address the limitations we identified in its hazard data. Likewise, we are not able at this time to confirm that EPA will solicit additional sources of such data from stakeholders. We support EPA’s stated intent to identify and evaluate additional sources of hazard data and retain our recommendation, reinforcing the need for the agency to continue the efforts it has begun.

Regarding our second recommendation, that EPA should identify and evaluate additional sources of information to improve its assessment of treatment technologies for industrial dischargers, EPA agreed that treatment technology information is useful to its program. The agency added that, given the importance of new treatment technology information, in 2011 it initiated efforts to gather more treatment information across all industry categories and will be expanding on this work in 2013 and 2014, once new fiscal year operating plans are in place. We described EPA’s initiative to obtain and review technical literature on treatment technology in our report. We nevertheless believe that EPA could use other sources of information on treatment technology, including information associated with NPDES permits, as described in the report. We continue to believe that EPA should identify and evaluate these and other sources of information on treatment technologies, with the goal of ensuring that the agency’s effluent guidelines reflect the best available treatment technologies that are economically achievable.

Regarding our third recommendation, that EPA modify the screening phase of its review process to include a thorough consideration of information on the treatment technologies available to industrial categories, EPA agreed that factoring treatment technology information into its reviews is valuable. The agency said, however, that the recommendation was not workable in the context of the agency’s current screening phase, noting that such an effort would be very resource intensive. Our concern is that EPA’s current screening phase, while targeted toward high-risk industries, does not ensure that effluent guidelines incorporate the best available treatment technologies that are economically achievable. We acknowledge that evaluating technologies for all existing industrial categories could be difficult for EPA to accomplish on an annual basis under its current approach. Our recommendation, however, did not specify that such an evaluation be done every year. For example, EPA could commit to a detailed study of the technologies in use and available to an industrial category on a periodic basis (i.e., every 5-10 years). As noted in our report, EPA’s 2002 draft strategy recognized the importance of evaluating treatment technologies in its screening phase, and the Court of Appeals for the Ninth Circuit held that, while not mandatory, the Clean Water Act strongly suggests that in determining whether the revision of effluent guidelines is appropriate—which begins with the screening phase—the agency should contemplate technology-based factors. However, we are not aware of any detailed EPA evaluation of options for considering technology during the screening phase since the agency announced in 2003 that performing a meaningful screening-level analysis of the availability of treatment technologies as planned in the draft strategy was “much more difficult than anticipated.” We believe that, nearly a decade later, EPA should, within the constraints of available resources, evaluate current options to consider such technologies in its screening phase. Furthermore, given its efforts to develop and update its technology information, we believe that EPA should clarify how it plans to incorporate this information in its screening phase.

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

If you or your staff members have any questions about this report, please contact me at (202) 512-3841 or trimbled@gao.gov. Contact points for our Office of Congressional Relations and Public Affairs may be found on the last page of this report. GAO staff who made major contributions to this report are listed in appendix V.

Appendix I: Scope and Methodology

To examine the process the Environmental Protection Agency (EPA) follows to screen and review industrial categories and the results of that process, we reviewed the Clean Water Act and relevant court decisions and agency documents, interviewed agency officials and experts, and documented the steps EPA has taken to screen particular industrial categories for possible new or revised effluent guidelines. Specifically, we reviewed relevant portions of the Clean Water Act to determine EPA’s responsibilities regarding the effluent guidelines and pretreatment programs. We analyzed several court decisions that ruled on challenges to EPA’s effluent guidelines program to determine what, if any, impact they had on the agency’s screening and review process. Further, we interviewed officials in EPA’s Engineering and Analysis Division to learn how the agency has used the process to screen and review industries. We focused our review on the results of the process EPA used from 2003 through 2010 in order to examine the approach it developed after the publication in November 2002 of its draft Strategy for National Clean Water Industrial Regulations: Effluent Limitation Guidelines, Pretreatment Standards, and New Source Performance Standards. By the end of our review, EPA had not yet published a preliminary or final effluent guideline program plan for the 2011-2012 planning cycle.

To document the results of EPA’s process, we examined the agency’s screening decisions for all industrial categories from 2003 through 2010. Specifically, we examined EPA’s final effluent guideline plans and technical support documents for 2004, 2006, 2008, and 2010 and the agency’s website to identify screening decisions and subsequent studies associated with particular industries. We examined these studies to identify those industries that EPA subjected to further review, which included an examination of available treatment technologies. Specifically, we examined preliminary and detailed studies for the 12 industries that EPA advanced beyond the screening phase into further review and selected 7 of them for more robust analysis to document how EPA had applied the process to those industries. The 7 industries were ore mining and dressing, coalbed methane extraction, steam electric power generation, chlorine and chlorinated hydrocarbon, drinking water treatment, pharmaceuticals management, and dental facilities. That analysis included in-depth interviews with EPA staff assigned to those industrial categories. These 7 industrial categories met our selection criteria that they be active or recently active, that is, that EPA was reviewing them or had made a decision to proceed or not to proceed with a rulemaking as recently as 2011 or 2012. We also documented the current status of any regulatory actions or other steps that EPA had taken with the other 5 industries that received a further review. We also examined the planning documents for 2 industrial categories—airport deicing and construction and development—that did not go through EPA’s 2003-2010 screening and review process but were the subject of regulatory activity during our study period.

To examine limitations to EPA’s screening and review process, if any, that could hinder the effectiveness of the effluent guidelines program in advancing the goals of the Clean Water Act, we pursued three separate methodologies: we (1) interviewed a cross section of experts on EPA’s effluent guidelines program, (2) surveyed the water quality permit directors of the 46 states that are authorized to issue permits for the National Pollutant Discharge Elimination System (NPDES), and (3) analyzed information about the hazard data sources EPA uses in its screening process.

We identified individuals for possible “expert” interviews by compiling a list of approximately 50 people from a variety of sources relevant to the effluent guideline program, including referrals from EPA, the Association of Clean Water Agencies, and the National Association of Clean Water Agencies and by consulting other knowledgeable individuals, relevant academic literature, and litigation documents. We classified the individuals by their affiliation with a particular stakeholder category (academia, industry, nongovernmental organization, or state and local water quality agencies). We then excluded from consideration 13 individuals for whom we could not obtain contact information. We called or sent an electronic message to those individuals for whom we had contact information to ask if they were familiar with EPA’s current effluent guidelines screening and review process. We excluded from consideration those individuals who told us that they were not familiar with these processes, those who could not speak with us during the time frame of our review, and those who said they were not interested in contributing to our review. From our larger list of approximately 50 experts, we selected 22 individuals to interview whom we determined to be experts on the basis of their familiarity with the program and their affiliation with a particular stakeholder category. We conducted 17 interviews including these 22 individuals from February 2012 to April 2012. Six of these interviews were with officials from industry, 4 from academia, 4 from state and local government, and 3 from nongovernmental organizations. In 4 cases, more than one expert participated in an interview. We prepared and asked a standard set of questions about the overall effectiveness of the effluent guidelines program and EPA’s use of hazard data, stakeholder input, and information on treatment technology in the screening process. We then reviewed their responses to identify common themes. The sample of experts is a nonprobability sample, and we therefore cannot generalize their opinions across all experts on the effluent guideline program.

To assess the extent to which effluent guidelines might need to be revised, we conducted a web-based survey of state water quality directors, and we statistically analyzed the data. Appendix II presents a complete description of our survey and our data analysis.

To obtain information about an industry that EPA had not analyzed in a further review phase, we selected one of the nine industries that states in our survey said presented a risk to human health or the environment, had treatment technology available to reduce that risk, and warranted revision. We asked officials from the five states whose responses for the metal finishing industry met all three of the above criteria a standard set of questions about the risk the metal finishing industrial category posed, the technology available to mitigate this risk, and the likely effect of a revised effluent guideline.

We further interviewed experts about their views on the adequacy of the hazard data that EPA uses in its screening process—discharge monitoring reports and the Toxics Release Inventory—and whether the experts had suggestions for alternative data sources. We also reviewed EPA’s own examinations of the benefits and limitations associated with the two data sources. EPA reports on these examinations of data quality in the technical support documents that accompany its effluent guideline program plans. In addition, we interviewed officials from EPA’s Office of Enforcement and Compliance Assurance to learn about the management of the databases that store discharge monitoring data. We also interviewed officials from the Engineering and Analysis Division in EPA’s Office of Water about possible effects that incomplete or inaccurate data could have on the screening process. We did not perform an independent assessment of data quality, although we concluded from the information we gathered that the data do have limitations that could affect EPA’s screening process.

To examine the actions EPA has taken to address any limitations in its screening and review process, we interviewed effluent guideline program officials from the Engineering and Analysis Division about their plans to modify the biennial screening and review process. We also reviewed papers prepared for the division by a contractor, which describe new sources of data that the division could use to identify industrial categories potentially posing environmental hazards and warranting further review for possible new or revised effluent guidelines. In addition, we interviewed officials from the Engineering and Analysis Division, the Office of Wastewater Management, and the Office of Enforcement and Compliance Assurance about agency efforts to revise the NPDES permitting process and the database that contains NPDES permit information. We conducted these interviews to determine what steps EPA has taken or could take to use these activities to improve the hazard and treatment technology data available for the screening process.

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

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

To assess the extent to which effluent guidelines might need to be revised, and to better understand the reasons for any such revisions, we conducted a web-based survey of state water quality officials, and we statistically analyzed patterns in the survey data. Our analysis identified numerous industries in numerous states for which state officials think that EPA should revise its guidelines. Furthermore, our analysis suggests that a few key factors—particularly, the significance of risk posed by effluent and the availability of pollution control technology—largely influence these officials’ views about whether guidelines should be revised. Details about our survey and our data analysis follow.

Questionnaire Design

We designed our survey to ask respondents both (1) whether they thought EPA should revise effluent guidelines for certain industrial categories and (2) whether they thought the major factors that EPA considers when revising effluent guidelines were present for these industrial categories in their state. We reviewed EPA’s 2002 draft Strategy for National Clean Water Industrial Regulations and identified the four key factors that the agency uses to determine whether effluent guidelines should be revised. These factors include (1) whether the effluent from a particular industrial category poses a significant risk to human health or the environment; (2) whether technology is available to substantially reduce the risk; (3) whether industry could adopt the technology without experiencing financial difficulty; and (4) whether other factors are present, such as whether current effluent guidelines for that industrial category are difficult to administer and whether revised guidelines could promote innovative regulatory approaches. We summarized these factors, using the exact language from EPA’s guidance wherever possible, and wrote survey questions that were simple enough to yield valid responses. We determined that the fourth factor was too complicated to be expressed as a single survey question, and we divided it into two simpler questions. By designing the questionnaire in this way, we sought to increase the reliability of our survey data in two ways: First, asking respondents to assess each of the factors that EPA considers for revision before providing their views about whether EPA should revise effluent guidelines focused their attention on providing an informed opinion. Second, by obtaining data on both the decision-making factors and the need for effluent guideline revisions, we were able to conduct a statistical analysis to identify how these factors appear to influence states’ views about the need for guideline revisions.

Our survey was divided into three sections. In the first section, we asked states to respond to a series of questions about each of the five industrial categories that release the greatest amount of toxic effluent in their state. We originally considered surveying states about each of the 58 industrial categories regulated by effluent limitation guidelines. During initial interviews with state officials, however, we determined that this approach would be burdensome and impractical. Therefore, we used data on pollutant discharges from EPA’s Toxics Release Inventory and discharge monitoring reports to select the five industries that discharged the greatest amount of toxic effluent in each state in 2010. For each of these five industrial categories, we asked states six questions, the first five of which pertain to EPA’s decision-making factors and the last of which pertains to the need for revised effluent guidelines. The six questions we asked about each industry are as follows:1. Are the existing effluent guidelines for this industry sufficient on their own—that is, without additional water quality-based effluent limits—to protect your state from significant risks to human health or the environment? 2. Is there a technology, process change, or pollution prevention action that is available to this industry that would substantially reduce any risks that remain after the state applies existing effluent limits?

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

3. Do you think this industry can afford to implement this risk-reducing technology, process change, or pollution prevention action without experiencing financial difficulty? 4. Are the current effluent guidelines for this industry difficult to understand, implement, monitor, or enforce? 5. Do you think the current effluent guidelines for this industry could be revised to promote innovative approaches, such as water quality trading or multimedia benefits? 6. Given your responses to the previous questions, do you think EPA should revise the current effluent guidelines for this industry?

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

Survey Respondents

We administered our survey to the directors of the water quality programs in the 46 states that are authorized to implement NPDES. These state officials are largely responsible for issuing permits to industrial facilities and for incorporating effluent guidelines into those permits. They have regular, firsthand experience with the guidelines, and their experience may supplement EPA’s information on effluent. We determined that these officials were therefore sufficiently knowledgeable to answer our survey questions. We obtained a list of these officials and their contact information from EPA and verified this list through Internet searches and phone calls with state officials. We identified the primary contact for each state but asked these individuals to consult with others in their office to determine the most accurate answer for each survey question.

Survey Administration

We implemented our survey as a web-based questionnaire. We notified the state water quality permit directors in February 2012 of our intent to conduct the survey and requested their participation. We instructed the states on how to access the web-based survey on March 2, 2012. We sent three e-mail reminders and telephoned states that had not responded before we closed the survey in April. We received responses from 31 of the 46 states, for an overall response rate of 67 percent of states. The survey data are based on responses from 42 individuals in these 31 states. Because we surveyed state officials only about the industrial categories that discharge the greatest amount of toxic effluent in their state, and because several states did not respond to our survey, the results of our analysis are not generalizable to all industrial categories in all states.

Summary of Survey Responses

To determine the extent to which state officials think that effluent guidelines should be revised, we analyzed the univariate frequencies of responses to our six primary survey questions. We aggregated the survey responses to create industry-by-state cases, such that each case represented the views of a particular state about the guidelines for a particular industrial category in that state. The completed survey questionnaires from 31 states led to 155 possible state-by-industry cases. Because not all states responded to all of the survey questions, however, we had at most 123 valid cases for analysis, depending upon the survey question. A summary of the responses to these questions appears in table 5.

These tabulations indicate that a substantial number of cases exist for which states thought that EPA should revise effluent guidelines and also for which they perceived that one or more of EPA’s decision-making factors were present. In 51 percent (63 of 123 cases), state officials said that EPA should revise the effluent guidelines for the corresponding industry. With regard to whether the key decision-making factors were present, state officials reported that effluent posed a significant risk in 57 percent of cases, that technology was available in 31 percent of cases, that the guidelines were difficult to administer in 24 percent of cases, and that revised guidelines could promote innovative approaches in 36 percent of cases. We had far fewer responses to our question about whether industry could adopt technology without experiencing financial difficulty because that question was applicable only if the respondent said such technology was available. Among these cases, state officials reported that the technology would not cause financial hardship to the industry in 82 percent of cases (31 of 38 cases).

We repeated this analysis after removing the 29 cases representing the three industrial categories whose effluent guidelines are in revision, leaving at most 96 cases for analysis, depending upon the question. Of the remaining cases, state officials said that EPA should revise the effluent guidelines for a substantial percentage of them; they also said that key decision-making factors were present in a substantial percentage of cases. For example, in 46 percent of these cases, state officials said that EPA should revise the effluent guidelines for the corresponding industry.

Relationships between Key Decision-Making Factors and States’ Views about Whether EPA Should Revise Effluent Guidelines

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

When state officials perceived effluent from a particular industrial category to pose a significant risk, they were 3.8 times more likely to think that EPA should revise the guidelines for that category than when they did not perceive the effluent to pose a significant risk. Specifically, among the cases in which state officials perceived effluent to pose a significant risk, they thought the effluent guidelines should be revised 75 percent of the time (52 of 69 cases), compared with 20 percent of the time (10 of 51 cases) when they thought the effluent did not pose a significant risk.

When state officials perceived technology to be available to substantially reduce the risk for a particular industrial category, they were 4.3 times more likely to think that EPA should revise the guidelines for that category than when they did not perceive technology to be available. Specifically, among the cases in which these officials perceived technology to be available, they thought EPA should revise the effluent guidelines 84 percent of the time (32 of 38 cases), compared with 20 percent (10 of 51 cases) when they thought that technology was not available.

When state officials thought that other factors were present for a particular industrial category, they were 2.3 times more likely to think that EPA should revise the guidelines than when they did not think these factors were present. “Other factors” refers to either that the current guidelines were difficult to understand, implement, monitor, or enforce or that revised guidelines could promote innovative approaches. Specifically, when state officials thought that such other factors were present, they thought that EPA should revise its effluent guidelines 70 percent of the time (43 of 61 cases), compared with 30 percent of the time (18 of 60 cases) when they thought these factors were not present.

Table 6 presents the complete results of these bivariate comparisons. We excluded one of the factors from the discussion above—namely, whether the industry could afford to implement the technology, process change, or pollution prevention action—because the responses to this question applied only to the subset of cases for which such a technology, change, or action was available, only 33 of which provided a yes or no response. In 87 percent of those cases in which the technology was perceived to be affordable (27 of 31 cases), state officials said that EPA should revise its guidelines for the corresponding industry. We repeated this analysis after removing the 29 cases representing the two industrial categories whose effluent guidelines EPA is already revising. We found that, even after removing these cases, the same three factors retained a significant relationship with state officials’ views about whether effluent guidelines should be revised. This result indicates that these key decision-making factors appear to influence state officials’ views even for industrial categories whose guidelines EPA is not already revising.

To understand how the various decision-making factors interact to influence states’ views about the need for revised effluent guidelines, we used the data from our survey to conduct decision-tree analysis. We developed the decision tree by splitting the data into smaller and smaller subgroups according to whether state officials perceived each of the factors to be present for a particular industrial category. Beginning with the first factor, risk, we divided the cases into subgroups, depending upon whether state officials perceived the effluent from the particular industry to pose a significant risk to human health or the environment. For each of these subgroups, we tabulated the number of cases in which state officials said the effluent guidelines should be revised, compared with the number of cases in which they said the guidelines should not be revised. We then split these subgroups again, according to whether state officials thought that technology was available to substantially reduce the risk. This split resulted in further subgroups. We continued splitting the data into smaller and smaller subgroups by next assessing state official’s views of the cost of technology and finally assessing their views on the presence of other factors. At each step, we stopped splitting the data if (1) the original group had fewer than 10 cases, (2) the resulting subgroups did not differ significantly in terms of the percentages of respondents who said that EPA should revise the guidelines; or (3) the resulting subgroups tended to support the same conclusion as to whether EPA should revise the guidelines. We examined the cases terminating in each of the branches and found that the overall decision tree was based on a broad variety of industries and states. The resulting decision tree, which is shown in figure 5, has four splits and six branches.

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

When state officials thought that effluent from an industrial category poses a significant risk to human health or the environment and when they thought technology was available to substantially reduce that risk, they generally said that EPA should revise the effluent guidelines. In such instances, they thought that EPA should revise the effluent guidelines 83 percent of the time (in 30 of 36 cases). This scenario is illustrated by the far left branch of the decision tree.

When state officials thought that effluent from an industrial category poses a significant risk, they generally thought that EPA should revise the effluent guidelines even when they perceived that technology was not available—as long as they perceived other factors to be present. In such instances, they thought that EPA should revise its effluent guidelines 83 percent of the time (5 of 6 cases). This scenario is illustrated by the second-to-left branch of the decision tree.

When state officials thought that effluent from an industrial category poses a significant risk, they generally thought that EPA should revise the effluent guidelines even when they did not know if technology was available—as long as they perceived other factors to be present. In such instances, these officials thought EPA should revise its effluent guidelines 100 percent of the time (11 of 11 cases). This scenario is illustrated by the branch of the decision tree in the third column from the right.

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

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

When state officials thought the effluent from a particular industrial category posed a significant risk but that technology was not available and other factors were not present, they generally said that EPA should not revise the effluent guidelines for that industry. In such instances, state officials thought that EPA should not revise the guidelines 100 percent of the time (5 of 5 cases). This scenario is illustrated by the branch of the decision tree in the third column from the left.

Industrial Categories for Which States Thought Effluent Guidelines Should Be Revised

Corresponding to this decision tree, we further examined the data to identify specific industrial categories that presented the strongest evidence for needing to be revised. Because the significance of risk and the presence of technology are the two primary decision-making factors, we selected the 30 cases for which states said these two factors were present and for which they said effluent guidelines should be revised. These cases fall into the far left branch of the decision tree in figure 5. These 30 cases represent 14 industrial categories: canned and preserved seafood processing; cement manufacturing; coal mining; fertilizer manufacturing; meat and poultry products; metal finishing; metal molding and casting; oil and gas extraction; ore mining and dressing; petroleum refining; pulp, paper, and paperboard; steam electric power generation; sugar processing; and timber products processing. We added industries that state officials cited in the second section of our survey, in which we asked them to identify industries that were not among the top five dischargers in their state. This addition lengthened the list by 22 cases, representing 7 additional industrial categories: centralized waste treatment, dairy products processing, electrical and electronic components, electroplating, grain mills manufacturing, landfills, and pharmaceutical manufacturing. In total, therefore, we identified 52 cases representing 21 industrial categories for which state officials thought effluent guidelines should be revised. Of these 52 cases, 39 represent industrial categories whose guidelines EPA is not already revising.

Appendix III: Additional Details on Industrial Categories with Effluent Guidelines

EPA has promulgated effluent guidelines for 58 industrial categories beginning in the mid-1970s. EPA has also revised the guidelines for most of those industries, although many have not been revised in recent years. As described elsewhere in this report, EPA uses a screening process to determine which categories may warrant further review and possible revision. According to our analysis, since EPA began using its current screening process in 2003, more than half the industrial categories with effluent guidelines did not advance beyond the screening phase in any year from 2003 to 2010 because, during a given 2-year screening cycle, the relative toxicity of their pollutant discharges did not put them among the top 95 percent of discharge hazard. Table 7 provides further information on the industrial categories, including the year their effluent guidelines were first promulgated, the year the guidelines were most recently revised, and the year(s) in 2004 through 2010 when their hazard ranking scores came within the top 95 percent.

Appendix IV: Comments from the Environmental Protection Agency

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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