oversight

Water Pollution: EPA Has Improved Its Review of Effluent Guidelines but Could Benefit from More Information on Treatment Technologies

Published by the Government Accountability Office on 2012-09-10.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                 United States Government Accountability Office

GAO              Report to the Ranking Member,
                 Subcommittee on Water Resources and
                 Environment, Committee on
                 Transportation and Infrastructure,
                 House of Representatives
September 2012
                 WATER POLLUTION

                 EPA Has Improved Its
                 Review of Effluent
                 Guidelines but Could
                 Benefit from More
                 Information on
                 Treatment
                 Technologies




GAO-12-845
                                              September 2012

                                              WATER POLLUTION
                                              EPA Has Improved Its Review of Effluent Guidelines
                                              but Could Benefit from More Information on
                                              Treatment Technologies
Highlights of GAO-12-845, a report to the
Ranking Member, Subcommittee on Water
Resources and Environment, Committee on
Transportation and Infrastructure, House of
Representatives


Why GAO Did This Study                        What GAO Found
Under the Clean Water Act, EPA has            The Environmental Protection Agency (EPA) uses a two-phase process to
made significant progress in reducing         identify industrial categories potentially needing new or revised effluent
wastewater pollution from industrial          guidelines to help reduce their pollutant discharges. EPA’s 2002 draft Strategy
facilities. EPA currently regulates           for National Clean Water Industrial Regulations was the foundation for EPA’s
58 industrial categories, such as             process. In the first, or “screening,” phase, EPA uses data from two EPA
petroleum refining, fertilizer                databases to rank industrial categories according to the total toxicity of their
manufacturing, and coal mining, with          wastewater. Using this ranking, public comments, and other considerations, EPA
technology-based regulations called           has identified relatively few industrial categories posing the highest hazard for the
effluent guidelines. Such guidelines are
                                              next, or “further review,” phase. In this further review phase, EPA evaluates the
applied in permits to limit the pollutants
                                              categories to identify those that are appropriate for new or revised guidelines
that facilities may discharge. The
Clean Water Act also calls for EPA to
                                              because treatment technologies are available to reduce pollutant discharges.
revise the guidelines when appropriate.       Since 2003, EPA has regularly screened the 58 categories for which it has
EPA has done so, for example, to              issued effluent guidelines, as well as some potential new industrial categories,
reflect advances in treatment                 and it has identified 12 categories for its further review phase. Of these 12
technology or changes in industries.          categories, EPA selected 3 for updated or new effluent guidelines. EPA chose
                                              not to set new guidelines for the others.
GAO was asked to examine (1) the
process EPA follows to screen and             Limitations in EPA’s screening phase may have led it to overlook some industrial
review industrial categories potentially      categories that warrant further review for new or revised effluent guidelines.
needing new or revised guidelines and         Specifically, EPA has relied on limited hazard data that may have affected its
the results of that process from 2003         ranking of industrial categories. Further, during its screening phase, EPA has not
through 2010; (2) limitations to this         considered the availability of advanced treatment technologies for most industrial
process, if any, that could hinder EPA’s      categories. Although its 2002 draft strategy recognized the importance of
effectiveness in advancing the goals of       technology data, EPA has stated that such data were too difficult to obtain during
the Clean Water Act; and (3) EPA’s            the screening phase and, instead, considers them for the few categories that
actions to address any such limitations.      reach further review. Officials responsible for state water quality programs and
GAO analyzed the results of EPA’s             experts on industrial discharges, however, identified categories they believe EPA
screening and review process from             should examine for new or updated guidelines to reflect changes in their
2003 through 2010, surveyed state             industrial processes and treatment technology capabilities. According to some
officials, and interviewed EPA officials      experts, consideration of treatment technologies is especially important for older
and experts to obtain their views on          effluent guidelines because changes are more likely to have occurred in either
EPA’s process and its results.                the industrial categories or the treatment technologies, making it possible that
                                              new, more advanced treatment technologies are available.
What GAO Recommends
                                              Recognizing the limitations of its hazard data and overall screening approach,
GAO is making recommendations to              EPA has begun revising its process but has not assessed other possible sources
improve the effectiveness of EPA’s
                                              of information it could use to improve the screening phase. In 2012, EPA
effluent guidelines program by
                                              supplemented the hazard data used in screening with four new data sources.
expanding its screening phase to
better assess hazards and advances in
                                              EPA is also developing a regulation that, through electronic reporting, will
treatment technology. EPA agreed with         increase the completeness and accuracy of its hazard data. In 2011, EPA also
two recommendations in principle and          began to obtain recent treatment technology literature. According to EPA, the
said it is making progress on them, but       agency will expand on this work in 2013. Nonetheless, EPA has not thoroughly
said that one is not workable given           examined other usable sources of information on treatment technology, nor has it
current agency resources. GAO                 reassessed the role such information should take in its screening process.
believes improvements can be made.            Without a more thorough and integrated screening approach that both uses
                                              improved hazard data and considers information on treatment technology, EPA
View GAO-12-845. For more information,
contact David Trimble at (202) 512-3841 or    cannot be certain that the effluent guidelines program reflects advances in the
trimbled@gao.gov                              treatment technologies used to reduce pollutants in wastewater.

                                                                                       United States Government Accountability Office
Contents


Letter                                                                                        1
               Background                                                                     5
               EPA’s Two-Phase Screening and Review Process Has Identified
                 Few Industrial Categories for New or Revised Effluent
                 Guidelines                                                                 16
               Focus on Limited Hazard Data to the Exclusion of Technology
                 Information May Have Led EPA to Overlook Industrial
                 Categories for Pollution Reduction                                         28
               EPA Is Adding Hazard Data Sources but Is Not Fully Using
                 Potential Sources of Information on Treatment Technologies                 36
               Conclusions                                                                  40
               Recommendations for Executive Action                                         41
               Agency Comments and Our Evaluation                                           41

Appendix I     Scope and Methodology                                                        45



Appendix II    Survey of State Water Quality Permit Writers and Analysis of
               Views about Whether EPA Should Revise Effluent Guidelines                    49



Appendix III   Additional Details on Industrial Categories with Effluent
               Guidelines                                                                   62



Appendix IV    Comments from the Environmental Protection Agency                            65



Appendix V     GAO Contact and Staff Acknowledgments                                        67



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



               Page i                               GAO-12-845 EPA's Effluent Guidelines Program
          Table 4: Regulated Industrial Categories Excluded in the Screening
                   Phase from Further Review, 2003-2010                                             33
          Table 5: State Officials’ Responses to the Key Questions in Our
                   Survey for the Industries Discharging the Greatest Amount
                   of Toxic Effluent in Their State                                                 52
          Table 6: State Officials’ Views about Whether EPA Should Revise
                   the Effluent Guidelines for the Industries Discharging the
                   Greatest Amount of Toxic Effluent in Their State, by the
                   Four Factors EPA Considers When Deciding Whether to
                   Revise Effluent Guidelines                                                       55
          Table 7: Years Effluent Guidelines Were Promulgated and Revised
                   for Industrial Categories and Years the Categories Were in
                   the Top 95 Percent of Total Reported Hazard, 2004-2010                           62


Figures
          Figure 1: Industrial Facilities Subject to Regulation of Discharges                        9
          Figure 2: Industrial Categories Responsible for 95 Percent of the
                   Total Reported Hazard and Considered for Possible
                   Further Review, 2003-2010                                                        18
          Figure 3: Criteria Used by EPA during Screening Phase to Exclude
                   Industrial Categories from Further Review                                        21
          Figure 4: Number of Times Existing Industrial Categories Were in
                   the Top 95 Percent of Total Reported Hazards in the Four
                   Biennial Screening Phases from 2003 through 2010                                 32
          Figure 5: Decision Tree of State Officials’ Views of Whether EPA
                   Should Revise Effluent Guidelines for Specific Industrial
                   Categories                                                                       58


          Abbreviations

          EPA               Environmental Protection Agency
          NPDES             National Pollutant Discharge Elimination System


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          Page ii                                     GAO-12-845 EPA's Effluent Guidelines Program
United States Government Accountability Office
Washington, DC 20548




                                   September 10, 2012

                                   The Honorable Timothy H. Bishop
                                   Ranking Member
                                   Subcommittee on Water Resources and Environment
                                   Committee on Transportation and Infrastructure
                                   House of Representatives

                                   Dear Mr. Bishop:

                                   Forty years after the Clean Water Act set a national goal of eliminating
                                   the discharge of pollutants into navigable U.S. waters, the Environmental
                                   Protection Agency (EPA) has made significant progress in reducing
                                   pollution from industrial facilities; nevertheless, pollution from these
                                   facilities continues to cause concern. 1 EPA’s actions to reduce this
                                   pollution have included establishing national technology-based
                                   regulations—or effluent guidelines—for separate industrial categories,
                                   such as petroleum refining, fertilizer manufacturing, coal mining, and
                                   metal finishing. EPA issued the vast majority of these regulations in the
                                   1970s and 1980s and has revised most of them; revisions may range
                                   from changes in testing methods to establishment of more stringent
                                   standards. Relatively few effluent guidelines have been revised or created
                                   in recent years, however, and environmental advocacy groups continue to
                                   raise concerns because industrial facilities annually discharge hundreds
                                   of billions, and perhaps trillions of pounds of pollutants to U.S. waters.
                                   According to EPA, industrial pollutants may contribute, in part, to impaired
                                   water quality; harm aquatic life; and limit the ways in which people can
                                   safely use the nation’s waters.

                                   One of EPA’s main responsibilities under the act is to regulate “point
                                   source” pollution—that is, pollution such as effluent or wastewater coming
                                   from a discrete point, such as a pipe from an industrial facility. The Clean
                                   Water Act directed EPA to establish effluent guidelines to achieve
                                   pollutant reductions using specific treatment technologies or changes in a
                                   facility’s production processes. In establishing and revising effluent


                                   1
                                    The Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500, § 2,
                                   86 Stat. 816, codified as amended at 33 U.S.C. §§ 1251-1387 (2012) (commonly referred
                                   to as the Clean Water Act). For consistency throughout this report, we refer to the statute
                                   and its amendments as the Clean Water Act.




                                   Page 1                                       GAO-12-845 EPA's Effluent Guidelines Program
guidelines, EPA is to assess (1) the performance and availability of the
best pollution control technologies or pollution prevention practices for an
industrial category; (2) the economic achievability of those technologies;
(3) non-water-quality environmental impacts, such as the energy required
to reduce pollutants; and (4) other factors that the EPA Administrator
deems appropriate, such as the risk posed by discharges. The legislative
history of relevant provisions in the Clean Water Act suggests that
effluent guidelines were expected to be revised and made more stringent
over time to reflect technological advances.

To carry out its effluent guidelines program, EPA develops regulations
setting national effluent guidelines, and states generally implement the
program by applying limits in permits that they issue to specific facilities.
Under the National Pollutant Discharge Elimination System (NPDES)
program, all facilities that discharge pollutants from any point source into
U.S. waters are required to obtain a permit, typically from their state or
EPA region. Under the Clean Water Act, EPA has authorized 46 states to
issue NPDES permits and retains the authority to issue permits for the
remaining 4 states: Idaho, Massachusetts, New Hampshire, and New
Mexico. 2

The Clean Water Act requires that after setting effluent guidelines, EPA is
to annually review each existing effluent guideline—that is, guidelines for
regulated industrial categories—to determine whether revising these
guidelines would be appropriate. In addition, at least every 2 years, EPA
is to identify industrial categories that do not have effluent guidelines but
that discharge nontrivial amounts of toxic or certain other pollutants. 3 At
least every 2 years, EPA is required to publish schedules for its annual
review and revision of existing effluent guidelines and for promulgating
effluent guidelines for any newly identified categories. The agency’s intent
is to issue a plan every year, with preliminary plans to be issued in odd



2
 In addition to the 46 states, the territory of the U.S. Virgin Islands is authorized to issue
NPDES permits. The remaining territories and the District of Columbia are not authorized
to issue these permits.
3
 A Senate committee report explaining the addition of this provision to the Water Quality
Act of 1987, noted in part, “[g]uidelines are required for any category of sources
discharging significant amounts of toxic pollutants. In this use, ‘significant amounts’ does
not require the Administrator to make any determination of environmental harm; any non-
trivial discharges from sources in a category must lead to effluent guidelines.” S. Rep. 99-
50 at 24-25 (1985). See also 69 Fed. Reg. 53,707 (Sept. 2, 2004).




Page 2                                        GAO-12-845 EPA's Effluent Guidelines Program
years and final plans for effluent guidelines in even years. If EPA decides
that an industrial category requires new or revised effluent guidelines, it
generally establishes them through a regulatory process that involves
proposing new effluent guidelines, obtaining public comment, making
revisions, and publishing a final regulation.

Throughout much of the effluent guidelines program’s history, EPA’s
schedule for issuing effluent guidelines has been driven by litigation and
resulting consent decrees. 4 In 2002, following extensive consultation with
an advisory task force formed in response to a 1992 consent decree, EPA
issued a draft Strategy for National Clean Water Industrial Regulations,
outlining a new process by which it planned to meet the requirement to
review industries in the future to determine whether new or revised
effluent guidelines were appropriate. The draft strategy calls for EPA to
conduct an annual screening of industrial categories to consider (1) the
risks the industrial categories pose to human health or the environment;
(2) the availability of treatment technology or other approaches to reduce
the risk; (3) the cost, performance, and affordability of the technology; and
(4) implementation and efficiency considerations. EPA derived these
screening factors in part from the statutory requirements for developing or
revising effluent guidelines. Following screening with available
information, the draft strategy calls for EPA to conduct a further review of
selected categories. The further reviews may take 1 or more years to
complete. EPA has not finalized or formally updated its draft strategy,
although according to EPA officials, the draft has served in part as the
basis for the agency’s annual reviews of industrial categories after 2002.

As EPA’s regulatory efforts have reduced pollutants from industrial point
sources over the past several decades, the agency has placed greater
emphasis on what is now the primary reason for impairment of the
nation’s waters, namely diffuse or nonpoint pollution, such as some
agricultural runoff. In light of that change in emphasis and soon after
issuing the draft strategy, EPA reduced staffing levels for the effluent
guidelines program by about 40 percent, according to program officials.
EPA issued its most recent effluent guidelines—for airport deicing, a
previously unregulated industry—in May 2012. Before that, EPA’s most
recent revisions of existing effluent guidelines were for concentrated



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




Page 3                                    GAO-12-845 EPA's Effluent Guidelines Program
animal feeding operations in 2008 and construction and development in
2009. 5 Most effluent guidelines have not been revised since the 1980s or
1990s.

In this context, you asked us to review EPA’s effluent guidelines program.
This report examines (1) the process EPA follows to screen and review
industrial categories potentially in need of new or revised effluent
limitation guidelines and the results of that process from 2003 through
2010; (2) limitations to this screening and review process, if any, that
could hinder the effectiveness of the effluent guidelines program in
advancing the goals of the Clean Water Act; and (3) what actions EPA
has taken or could take to address limitations, if any, that exist.

To address our objectives, we reviewed the Clean Water Act and relevant
regulations, EPA’s 2002 draft strategy, effluent guidelines program plans,
and associated supporting documents. We also reviewed EPA’s
screening decisions for all industrial categories and its further reviews for
the 12 industrial categories selected through screening from 2003 through
2010. 6 Our purpose was to identify those industries that EPA had only
initially screened and those that received a further review, including an
examination of available treatment technologies. We also documented
the status of regulatory actions and other steps that EPA took for
industries that it reviewed further. In addition, we interviewed officials in
EPA’s Engineering and Analysis Division to learn about the process the
agency follows to screen and review industries potentially in need of new
or revised effluent limitation guidelines. We then compared the steps
specified in the draft strategy with the agency’s current process for
screening and reviewing industries for possible revised guidelines. To
better understand the steps in the current process as they apply to
specific industrial categories, we conducted detailed interviews with EPA
staff regarding 7 of the 12 industrial categories that EPA selected from
2003 onward for possible new or revised effluent guidelines. We chose
2003 because it was the year when EPA issued its first preliminary
effluent guidelines plan after developing its 2002 draft strategy for



5
 EPA stayed a portion of the guideline for the construction and development industrial
category that established a numerical effluent limitation for turbidity, but other portions of
the guidelines remain in effect. See 75 Fed. Reg. 68215 (Nov. 5, 2010), 40 C.F.R. pt. 450.
6
 As of August 2012, EPA had not published a preliminary effluent guidelines program plan
for 2011.




Page 4                                        GAO-12-845 EPA's Effluent Guidelines Program
             screening and reviewing industries. We also conducted 17 interviews with
             22 experts from academia, industry, nonprofit organizations, and state
             and local water quality agencies for their perspectives on EPA’s effluent
             guidelines program. We selected these experts from a list of
             approximately 50 individuals identified from a variety of sources, including
             referrals from EPA, the Association of Clean Water Agencies, the
             National Association of Clean Water Agencies, and other experts;
             relevant academic literature; and litigation documents. Because we used
             a nonprobability sampling method to select experts, the results of our
             interviews with them cannot be generalized to all experts on the program,
             but the information derived from interviewing these experts provided
             illustrative observations and examples. We also surveyed the directors for
             water quality permits in the 46 states authorized to issue NPDES permits
             about the adequacy of current effluent guidelines; the results of our
             analysis are not generalizable to all industrial categories in all states.
             Using the results of the survey, we selected an industrial category that
             state officials said warranted revised effluent guidelines and interviewed
             state officials to learn more about the reasons for their views. We also
             interviewed EPA officials about their plans, if any, related to those
             industries. Appendixes I and II present a more detailed description of our
             scope and methodology.

             We conducted this performance audit from September 2011 to
             September 2012, in accordance with generally accepted government
             auditing standards. Those standards require that we plan and perform 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.


             Tens of thousands of industrial facilities directly discharge wastewater
Background   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


             Page 5                                GAO-12-845 EPA's Effluent Guidelines Program
58 categories and pretreatment standards for 35 of the 58 categories. 7
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.

Table 1: Industrial Categories with Effluent Guidelines and Pretreatment Standards
as of August 2012

                                                             Effluent     Pretreatment
Industrial category                                         guideline       standard
Airport deicing                                                  X
Aluminum forming                                                 X               X
Asbestos manufacturing                                           X
Battery manufacturing                                            X               X
Canned and preserved fruits and vegetables                       X               X
processing
Canned and preserved seafood processing                          X
Carbon black manufacturing                                       X               X
Cement manufacturing                                             X
Centralized waste treatment                                      X               X
Coal mining                                                      X
Coil coating                                                     X               X
Concentrated animal feeding operations                           X               X
Concentrated aquatic animal production                           X
Construction and development                                     X
Copper forming                                                   X               X
Dairy products processing                                        X
Electrical and electronic components                             X               X
Electroplating                                                                   X




7
 Throughout this report, we use the term effluent guidelines to refer to effluent guidelines
and pretreatment standards collectively. Some industrial categories are made up of direct
dischargers, some of indirect dischargers, and some have a mix of both. Thirty-four of the
58 industrial categories are regulated by both effluent guidelines and pretreatment
standards because these categories comprise both direct and indirect dischargers.
Twenty-three industrial categories are regulated by effluent guidelines but not
pretreatment standards, while the electroplating industrial category is regulated by
pretreatment standards but not by effluent guidelines.




Page 6                                       GAO-12-845 EPA's Effluent Guidelines Program
                                                           Effluent   Pretreatment
Industrial category                                       guideline     standard
Explosives manufacturing                                      X
Ferroalloy manufacturing                                      X
Fertilizer manufacturing                                      X             X
Glass manufacturing                                           X             X
Grain mills                                                   X             X
Gum and wood chemicals manufacturing                          X
Hospital                                                      X
Ink formulating                                               X             X
Inorganic chemicals manufacturing                             X             X
Iron and steel manufacturing                                  X             X
Landfills                                                     X
Leather tanning and finishing                                 X             X
Meat and poultry products                                     X
Metal finishing                                               X             X
Metal molding and casting                                     X             X
Metal products and machinery                                  X
Mineral mining and processing                                 X
Nonferrous metals forming and metal powders                   X             X
Nonferrous metals manufacturing                               X             X
Oil and gas extraction                                        X             X
Ore mining and dressing                                       X
Organic chemicals, plastics, and synthetic fibers             X             X
Paint formulating                                             X             X
Paving and roofing materials (tars and asphalt)               X             X
Pesticide chemicals                                           X             X
Petroleum refining                                            X             X
Pharmaceutical manufacturing                                  X             X
Phosphate manufacturing                                       X
Photographic                                                  X
Plastics molding and forming                                  X
Porcelain enameling                                           X             X
Pulp, paper, and paperboard                                   X             X
Rubber manufacturing                                          X             X
Soap and detergent manufacturing                              X             X
Steam electric power generating                               X             X
Sugar processing                                              X




Page 7                                      GAO-12-845 EPA's Effluent Guidelines Program
                                                                                 Effluent   Pretreatment
                         Industrial category                                    guideline     standard
                         Textile mills                                              X
                         Timber products processing                                 X
                         Transportation equipment cleaning                          X             X
                         Waste combustors                                           X             X
                         Total                                                     57             35
                        Source: GAO analysis of EPA data.




National Pollutant      Before an industrial facility discharges pollutants, it must receive a permit
Discharge Elimination   that is to, at a minimum, incorporate any relevant pollutant limits from
System Permits          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. 8
                        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.




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




                        Page 8                                    GAO-12-845 EPA's Effluent Guidelines Program
Figure 1: Industrial Facilities Subject to Regulation of Discharges




                                           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


                                           Page 9                              GAO-12-845 EPA's Effluent Guidelines Program
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. 9 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. 10 Permitting authorities are not
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.




9
 EPA regulations require permit writers to document the reasoning behind a facility’s
permit. A fact sheet is required to accompany the permit for facilities designated by EPA
regional administrators and the permitting authorities to be major dischargers. A statement
of basis is required for permits issued to all other facilities, which EPA considers minor
facilities. For purposes of this report, we refer to both fact sheets and statements of basis
as “fact sheets.” See EPA, NPDES Permit Writers Manual at 11-10, 40 C.F.R. §§ 124.7,
124.8, 124.56, 123.25 (2012).
10
  EPA and the states are making a transition from one national database, known as the
Permit Compliance System, to another known as the Integrated Compliance Information
System: NPDES. The states are divided in their use of the two databases. Consequently,
two databases contain discharge-monitoring reports. In our report, however, we refer to
them collectively as “the database.”




Page 10                                      GAO-12-845 EPA's Effluent Guidelines Program
                      Facilities may also be required to report data to EPA’s Toxics Release
                      Inventory on their estimated wastewater discharges. 11 This inventory
                      contains annual estimates of facilities’ discharges of more than 650 toxic
                      chemicals to the environment. One of the inventory’s primary purposes is
                      to inform communities about toxic chemical releases to the environment,
                      showing data from a wide range of mining, utility, manufacturing, and
                      other industries subject to the reporting requirements. As such, although
                      the inventory is unrelated to the NPDES program, the Toxics Release
                      Inventory contains estimated discharges of toxic pollutants for many
                      NPDES-permitted facilities. Not all industrial categories covered by
                      effluent guidelines—the oil and gas industrial category, for example—are
                      necessarily required to report to the inventory.


Effluent Guidelines   Under the Clean Water Act, EPA must establish effluent guidelines for
Program               three categories of pollutants—conventional, toxic, and nonconventional
                      pollutants—and several levels of treatment technology. As defined in
                      EPA’s regulations, conventional pollutants include biological oxygen
                      demand, 12 total suspended solids, 13 fecal coliform bacteria, 14 oil and
                      grease, and pH. 15 The Clean Water Act designates toxic pollutants as




                      11
                         Specifically, certain facilities that manufacture, process, or otherwise use any of the
                      listed individual chemicals and chemical categories are required to report annually to EPA
                      and their respective state those chemicals used above threshold quantities, the amounts
                      released to the environment, and whether the releases entered the air, water, or soil. 42
                      U.S.C. § 11023 (2012).
                      12
                        Biological oxygen demand is a measure of the oxygen used during decomposition of
                      organic material over a specified period (usually 5 days) in a wastewater sample; it
                      represents the readily decomposable organic content of wastewater.
                      13
                        A measure of filterable solids present in a sample, as determined by the method
                      specified in 40 C.F.R. pt. 136.
                      14
                        Fecal coliform are bacteria whose presence indicates that water may be contaminated
                      by human or animal wastes.
                      15
                        A measure of the hydrogen ion concentration of water or wastewater expressed as the
                      negative logarithm of the hydrogen ion concentration in milligrams per liter. A pH of 7 is
                      neutral, a pH less than 7 is acidic, and a pH greater than 7 is basic.




                      Page 11                                      GAO-12-845 EPA's Effluent Guidelines Program
those chemicals listed in a key congressional committee report, 16 which
contains 65 entries, including, arsenic, carbon tetrachloride, and mercury,
as well as groups of pollutants, such as halomethanes. 17 Nonconventional
pollutants are any pollutants not designated as a conventional or toxic
pollutant; for example, EPA has developed limitations for such
nonconventional pollutants as chemical oxygen demand, 18 total organic
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. 19 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.



16
   See Clean Water Act §307(a)(1), codified at 33 U.S.C. §1317(a)(1) (2011); see also 33
U.S.C. § 1362(13) (defining toxic pollutant). The list appears in the Code of Federal
Regulations at 40 C.F.R. § 401.15. The committee report list was developed from a 1976
consent decree signed with the Natural Resources Defense Council, an environmental
group, to resolve litigation that, among other things, sought to compel EPA to expand the
list of toxic pollutants promulgated under the act. The consent decree was entered in
NRDC et al. v. Train, 6 ELR 20588, (D.D.C. 1976). The statute authorizes EPA to revise
the list.
17
  Human-made halomethanes are most notably used as refrigerants, solvents,
propellants, and fumigants.
18
  Chemical oxygen demand is a measure of the oxygen-consuming capacity of inorganic
and organic matter present in wastewater.
19
  See, e.g., Senate Consideration of the Report of the Conference Committee, October 4,
1972 (Statement of Sen. Muskie), reprinted in Cong. Research Serv., A Legislative History
of the Water Pollution Control Act Amendments of 1972, at 169-70 (1978); S. Comm. on
Public Works, Water Pollution Control Act Amendments of 1972, S. Rep. No. 92-414, at
50-51 (1971), reprinted in Cong. Research Serv., A Legislative History of the Water
Pollution Control Act Amendments of 1972, at 7669-70 (1978).




Page 12                                     GAO-12-845 EPA's Effluent Guidelines Program
                                             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.

Table 2: Standards for Effluent Guidelines for Direct Dischargers

Standard                      Pollutants                       Basis for treatment level                  Entities subject to regulation
Best practicable technology   Toxics, nonconventional, The average of the best performances               Existing industrial facilities during the
currently available           and conventional         of facilities within the industry                  Clean Water Act’s initial
                                                                                                          implementation phase (1977-89)
Best conventional pollutant   Conventional                     The most stringent technology option       Existing industrial facilities, after
                                                                                                               a
control technology                                             that passes tests as feasible and          1989
                                                               economically achievable
Best available technology     Toxics and                       Level to be set with reference to the      Existing industrial facilities, after
                                                                                                               b
economically achievable       nonconventional                  best performer in any industrial           1989
                                                               category and determined to be
                                                               economically achievable for the
                                                               category or subcategory
New source performance        Toxics, nonconventional, The most stringent controls attainable             New industrial facilities
standards                     and conventional         through the application of the best
                                                       demonstrated control technology that
                                                       does not pose a barrier to entry
                                             Source: GAO analysis.

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




                                             Page 13                                           GAO-12-845 EPA's Effluent Guidelines Program
The Clean Water Act requires EPA to annually review all existing effluent
guidelines and revise them if appropriate, and also to review existing
effluent limitations at least every 5 years and revise them if appropriate. 20
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


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




Page 14                                      GAO-12-845 EPA's Effluent Guidelines Program
strategy, EPA was to evaluate readily available data and stakeholder
input to create an initial list of categories warranting further examination
for potential effluent guidelines. The strategy identified the following four
key factors for EPA to consider in deciding whether to revise existing
effluent 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. 21 EPA officials stated that the
agency made this choice because its implementation of the process was
likely to evolve over time.

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


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




Page 15                                       GAO-12-845 EPA's Effluent Guidelines Program
                            statute’s use of the phrase “if appropriate” indicated that decisions on
                            whether to revise guidelines are discretionary but are also constrained by
                            the statute’s mandate as to what effluent guidelines regulations are to
                            accomplish. 22 Further, the court stated that the overall structure of the
                            Clean Water Act strongly suggests that any review to determine whether
                            revision of effluent guidelines is appropriate should contemplate
                            technology-based factors.


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

for New or Revised
Effluent Guidelines

EPA’s Screening Phase       EPA’s screening phase starts with a review of industrial categories
Results in a Subset of      already subject to effluent guidelines—as well as industrial categories that
Industrial Categories for   are not—to identify and rank those whose pollutant discharges pose a
                            substantial hazard to human health and the environment. 23 EPA analyzes
Further Review
                            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



                            22
                              Our Children’s Earth (OCE) Found. v. EPA, 527 F.3d 842, 851 (9th Cir. 2008), rehearing
                            506 F.3d 781 (9th Cir. 2007), on appeal from 2005 U.S. Dist. Lexis 45716 (N.D. Cal.
                            2005).
                            23
                              EPA’s draft 2002 strategy stated that it would consider the risks to human health or the
                            environment. According to a senior effluent guidelines program official, however, the
                            agency’s screening process includes a relative hazard assessment rather than a risk
                            assessment. According to EPA, once an industrial category has been identified as posing
                            a significant hazard on the basis of the screening analysis—and before initiating an
                            effluent guideline rule making—the agency may then conduct a study of the industrial
                            category to determine the risks imposed on human health and the environment.




                            Page 16                                     GAO-12-845 EPA's Effluent Guidelines Program
announced in its 2010 final effluent guideline program plan that it
excluded the steam electric power-generating category from the
screening phase because the agency had already begun revising effluent
guidelines for this industry. 24 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. 25 From these two sources, EPA estimates the amount and
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.




24
  The steam electric power-generating industry produces electric power by means of
steam generated from fossil fuels, such as coal, oil, and natural gas, or nuclear fuels.
25
  As explained above, an industrial direct discharger is required to have an NPDES permit
regardless of whether there are effluent guidelines for the 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.




Page 17                                       GAO-12-845 EPA's Effluent Guidelines Program
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. 26 Figure 2 shows the number of industrial categories that EPA
considered for possible further review on the basis of its hazard
screening.

Figure 2: Industrial Categories Responsible for 95 Percent of the Total Reported
Hazard and Considered for Possible Further Review, 2003-2010




26
  According to EPA, the doubling in the number of industrial categories in 2010 resulted
from the removal of the steam electric power-generating category from the ranking
process after EPA decided to revise its effluent guidelines. Previously, that industrial
category alone constituted up to 73 percent of the total toxic weighted pound equivalent.
When EPA removed that category from its hazard ranking, many other industries with
smaller hazard ranking scores moved into the top 95 percent.




Page 18                                     GAO-12-845 EPA's Effluent Guidelines Program
Note: According to EPA, the doubling in the number of industrial categories in 2010 resulted from the
removal of the steam electric power-generating category from the ranking process after EPA decided
to revise its effluent guidelines. Previously, that industrial category alone constituted up to 73 percent
of the total toxic weighted pound equivalent. When EPA removed that category from its hazard
ranking, many other industries with smaller hazard ranking scores moved into the top 95 percent.

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

•    Data used in the ranking process contained errors. After completing
     its ranking, EPA verifies the pollutant discharge data from the
     discharge monitoring 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.




Page 19                                             GAO-12-845 EPA's Effluent Guidelines Program
•   Other factors. EPA considers other factors in addition to those
    described above to determine if an industrial category warrants further
    review. According to EPA, one such factor is inadequate data from
    which to 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.




Page 20                               GAO-12-845 EPA's Effluent Guidelines Program
Figure 3: Criteria Used by EPA during Screening Phase to Exclude Industrial Categories from Further Review




                                        Page 21                                 GAO-12-845 EPA's Effluent Guidelines Program
                             During the screening phase, EPA uses existing industry classifications as
                             the basis for identifying industrial categories. EPA groups these industry
                             classifications, which are identified by one of two standardized coding
                             schemes, into industrial categories that it then considers for effluent
                             guidelines. 27 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         In its further review phase, EPA conducts detailed studies of any
Phase Results in Few         industrial categories identified in its screening phase, using the four
Industrial Categories to     factors listed in its November 2002 draft strategy to determine whether
                             the categories need new or revised effluent guidelines. Since issuing its
Consider for Potential New   draft strategy, EPA has selected 12 industrial categories to move beyond
or Revised Effluent          the screening phase to the further review phase. Seven of the
Guidelines                   categories—for example, the pulp, paper, and paperboard category and
                             the petroleum refining category—were identified for further review on the


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




                             Page 22                                   GAO-12-845 EPA's Effluent Guidelines Program
basis of the risk or toxicity of the pollutants they discharge, and 5 were
identified for review on the basis of stakeholder concerns. If the
categories are already subject to effluent guidelines that EPA set, the
agency studies the need to revise 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.




Page 23                               GAO-12-845 EPA's Effluent Guidelines Program
Table 3: Consideration of Treatment Technology during Further Review and Resulting Key Agency Decisions

                             Period for further      Consideration of treatment technology              Key agency decisions after
                                    a
Industrial category          review                  during further review                              further review
Categories with existing effluent guidelines
Chlorine and chlorinated     2005-present            EPA did not prepare a written study for this       According to EPA officials, the
hydrocarbons                                         industrial category. Instead it used site visits   agency does not plan to initiate rule
              b
manufacturing                                        and sampled wastewater to collect data on          making for this industrial category
                                                     pollutant quantities and conducted site visits     because only one facility is
                                                     to design an industry-led voluntary sampling       responsible for the majority of the
                                                     plan. EPA officials stated that through            pollutant discharge.
                                                     implementation of the sampling plan, the
                                                     agency discovered that most participating
                                                     facilities used treatment technology that was
                                                     effectively controlling their pollutant
                                                     discharges.
Coalbed methane              2005-2010               In its 2010 study, EPA presented an                On the basis of the study’s findings,
          c
extraction                                           overview of seven treatment methods used           EPA in 2010 announced the start of
                                                     by this industry, depending on the type of         rule making for effluent guidelines
                                                     wastewater pollutant produced during the           for this category. The agency plans
                                                     extraction process.                                to propose the rule in 2013.
Coal mining                  2006-2008               In its 2008 study, EPA described two               On the basis of the study’s findings,
                                                     treatment technologies associated with the         EPA decided to take no further
                                                     most common pollutant discharges resulting         action on this category, stating that
                                                     from coal mining processes.                        the existing guidelines were
                                                                                                        appropriate to address the
                                                                                                        industry’s discharges.
Ore mining and dressing      2008-2011               EPA prepared a study published in 2011,            EPA in 2011 decided to take no
                                                     which included a review of one currently           further action on ore mining and
                                                     used treatment technology: high density            dressing. The agency found that a
                                                     sludge recycling. The review included an           small number of facilities were
                                                     overview of this treatment, where it was           responsible for the majority of
                                                     used in the United States, and permit              discharges and decided to address
                                                     requirements for facilities that used the          the pollutants the NPDES permit
                                                     technology.                                        process with permitting or through
                                                                                                        compliance and enforcement
                                                                                                        activities.
Organic chemicals,           2003-2004               EPA’s study of this category included              EPA in 2004 decided to take no
plastics, and synthetic                              general descriptions of treatments currently       further action for the category
fibers                                               used by the industry, as well as a more            because of the small number of
                                                     detailed discussion of pollution prevention        facilities discharging significant
                                                     and wastewater treatment technologies used         amounts of toxic pollutants.
                                                     to minimize the amount of dioxin in
                                                     wastewater streams.




                                               Page 24                                      GAO-12-845 EPA's Effluent Guidelines Program
                           Period for further   Consideration of treatment technology           Key agency decisions after
                                  a
Industrial category        review               during further review                           further review
Petroleum refining         2003-2004            In its study of the petroleum refining          EPA in 2004 decided to take no
                                                category, EPA presented general                 further action on petroleum refining
                                                information on current treatments used by       because it found that most
                                                refineries to treat wastewater produced and     petroleum refining facilities were
                                                on additional pollution control alternatives.   not discharging toxic pollutants. For
                                                                                                the few facilities that were, the
                                                                                                agency said it would seek changes
                                                                                                through the NPDES permit
                                                                                                process.
Pulp, paper, and           2005-2006            In its 2006 study, EPA identified               On the basis of findings from the
paperboard                                      technologies used in a laboratory setting,      further review phase, including that
                                                pilot programs, and industry to remove          some available technologies were
                                                metals in wastewater from pulp and paper        site-specific and not readily
                                                mills.                                          adaptable industrywide, EPA in
                                                                                                2006 decided to take no further
                                                                                                action on this category,
Steam electric power       2005–2009            As part of its 2009 study, EPA focused          On the basis of findings from its
generating                                      primarily on technologies associated with       study, EPA in 2009 decided to
                                                two sources (coal-ash-handling operations       begin revising the effluent
                                                and wastewater produced from specific air       guidelines for this category.
                                                pollution control systems) because these        Proposed revisions to existing
                                                sources account for a significant amount of     guidelines are expected in
                                                the pollutants discharged by the industry.      November 2012, with final action
                                                                                                expected by April 2014.
New industrial categories considered
Dental facilities          2006-2008            EPA issued a study of dental facilities in      EPA In 2008 announced that it
                                                2008. The study discussed best                  would not pursue a rule making and
                                                management practices for dental facilities to   would instead work with
                                                reduce their discharge of dental amalgam        stakeholders, including the
                                                containing mercury. In particular, the study    American Dental Association and
                                                reviewed facilities’ continuing use of          state water agencies, on a
                                                amalgam separators.                             voluntary discharge reduction
                                                                                                program. In 2010, however, the
                                                                                                agency reversed its decision after
                                                                                                assessing the progress made
                                                                                                under the voluntary reduction
                                                                                                program. EPA expects to propose
                                                                                                effluent guidelines in 2012.
Drinking water treatment   2004-2011            EPA reviewed available treatment                EPA took no further action on this
                                                technologies as part of a 2011 study of the     category because the agency found
                                                industry. Because drinking water treatment      that discharges from the category
                                                operations vary—in types of contaminants        could best be addressed by adding
                                                found at different plants, for example—the      limits to specific NPDES permits. In
                                                study presented a range of treatment            addition, according to agency
                                                approaches.                                     officials, the 2011 technical report
                                                                                                can provide information on
                                                                                                technologies for state permit writers
                                                                                                for drinking water treatment
                                                                                                facilities.




                                          Page 25                                     GAO-12-845 EPA's Effluent Guidelines Program
                      Period for further       Consideration of treatment technology               Key agency decisions after
                             a
Industrial category   review                   during further review                               further review
Pharmaceuticals       2006-present             According to EPA officials, a study of the          EPA continues to work on its study,
           d
management                                     industrial category is still under way. Officials   although according to agency
                                               said that because of the nature of the              officials, no further action is
                                               industry, they are pursuing a “front-end”           expected toward developing new
                                               strategy to prevent flushing of unused              effluent guidelines for this industry.
                                               pharmaceuticals into wastewater systems.            Instead, the agency plans to update
                                               Given this approach, treatment technologies         draft guidance issued in August
                                               will not be a primary focus of the agency’s         2010 on best management
                                               further review process.                             practices for unused
                                                                                                   pharmaceuticals at health care
                                                                                                   facilities.
Tobacco products      2004-2006                In 2006, EPA issued a study on this industry,       The agency found that the category
processing                                     which provided an overview of the treatment         comprises primarily indirect
                                               process typically used by tobacco products          dischargers; that pollutant loads are
                                               facilities.                                         low; and, according to EPA
                                                                                                   officials, wastewater treatment
                                                                                                   plants remove 96 percent of the
                                                                                                   loads. EPA in 2006 therefore
                                                                                                   decided to take no further action.
                                     Source: GAO analysis of EPA documents.

                                     a
                                      The dates of further review (1) start with the year when EPA announced in an effluent guidelines
                                     program plan that it would conduct a study and (2) end with the year when EPA completed that work.
                                     b
                                      Chlorine and chlorinated hydrocarbons manufacturing is a subcategory of two existing effluent
                                     guidelines categories: (1) organic chemicals, plastics, and synthetic fibers and (2) inorganic
                                     chemicals.
                                     c
                                       Coalbed methane extraction is not covered by an existing effluent guidelines category, although EPA
                                     considers the industry a new subcategory of the oil and gas extraction category
                                     .
                                     d
                                       Pharmaceuticals management is not to be confused with pharmaceutical manufacturing.

                                     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




                                     Page 26                                           GAO-12-845 EPA's Effluent Guidelines Program
sources, including site visits and surveys of industrial facilities. 28 During
its further review of the steam electricity power-generating industry, for
example, EPA sampled wastewater directly at power plants, surveyed
plant operators about which technologies they were using to minimize
pollutant discharges and at what cost, and sought information on other
potential treatment technologies.

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


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




Page 27                                     GAO-12-845 EPA's Effluent Guidelines Program
                             guidelines—steam electric power generating—or to develop new effluent
                             guidelines—coalbed methane extraction and dental facilities. 29 According
                             to agency documents and officials, EPA has chosen to take no action on
                             the other 9 of the 12 categories it has further reviewed since 2002.


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


Limitations in Hazard Data   The two sources EPA relies on during its initial screening process—
May Have Caused EPA to       discharge monitoring reports and the Toxic Release Inventory—have
Overlook Industrial          limitations that may affect the agency’s ability to accurately rank industrial
                             categories for further review on the basis of the human health and
Categories                   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


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




                             Page 28                                      GAO-12-845 EPA's Effluent Guidelines Program
     offices issue permits containing limits for pollutant discharges, but
     those permits may not include limits for all the pollutants that may be
     discharged, as for example, if those pollutants are not included in the
     relevant effluent guidelines or need not be limited for the facility to
     meet state water quality standards. 30 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. 31



30
  Generally, permits are to establish limitations for those pollutants reasonably expected
to be present in wastewater with potential to cause or contribute to an excursion above a
water quality standard. For an industry with an effluent guideline, the guideline specifies
which pollutants must, at minimum, be included in the permit. For other industries, the
permit writer uses information provided on the permit application, as well as other sources,
to determine which pollutants may be present in wastewater and warrant a limitation. In
addition, permits may include water-quality-based limits derived from the standards for the
water body into which the effluent is discharged.
31
  In addition, EPA has identified some limitations in the discharge monitoring report data
that may cause the agency to overestimate the hazard presented by an industrial
category. For example, many facilities do not report average quantities for specific
pollutants, in which case, EPA has to base its estimates on the maximum or other amount
discharged, which could lead to overestimating a facility’s actual discharges.




Page 29                                      GAO-12-845 EPA's Effluent Guidelines Program
EPA documents and some experts we contacted also stated that data
collected in the Toxics Release Inventory are useful to identify toxic
discharges. Nevertheless, according to the agency and experts, these
inventory data have limitations that may cause EPA to either overestimate
or underestimate the relative toxicity of particular industrial categories.
The limitations they identified include the following:

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

•   Not all facilities are required to report to the inventory, which may lead
    to undercounting the discharges for the industrial categories of which
    the facilities are a part. Facilities with fewer than 10 employees are
    not required to report to the inventory, and neither are facilities 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.




Page 30                               GAO-12-845 EPA's Effluent Guidelines Program
EPA’s Screening Phase      EPA’s primary focus during its screening phase is the relative hazard
Does Not Consider          posed by industrial categories, without consideration of available
Treatment Technologies,    treatment technologies that could be used as the basis for revised effluent
                           guidelines to help reduce pollutant discharges. Because EPA sets the
Omitting Some Industrial   cutoff point in its screening process as industrial categories contributing to
Categories from Further    95 percent of total reported hazard, the agency does not consider for
Review                     further review the categories contributing to 5 percent of the total reported
                           hazard. Although this percentage is low, the categories involved
                           constitute the majority of all industrial categories with effluent guidelines.
                           EPA does not conduct a further review for these and other industrial
                           categories that it has excluded for other reasons, meaning that EPA does
                           not examine them for the availability of more-effective treatment
                           technologies. As previously noted, the Ninth Circuit Court held in 2008
                           that EPA does not have a mandatory duty to consider technology in its
                           screening process but stated that the act strongly suggests that any
                           review to determine whether revision of effluent guidelines is appropriate
                           should contemplate technology-based factors. Regardless of whether
                           EPA is required to do so, the agency is not considering technology for
                           these industrial categories, and hence EPA cannot ensure that the
                           facilities in these categories are using the best available treatment
                           technology.

                           According to our analysis of EPA’s planning documents for the effluent
                           guidelines program, since the agency in 2003 began using its current
                           screening process, more than half the industrial categories with effluent
                           guidelines did not advance beyond the screening phase in any year from
                           2003 to 2010. The reason these categories did not advance was that,
                           during a given 2-year screening cycle, the relative toxicity of their
                           pollutant discharges did not put them among the top 95 percent of
                           dischargers. As a result, these industrial categories were excluded from
                           further review before EPA would have analyzed the availability of more-
                           advanced treatment technologies or production processes. As figure 4
                           shows, from 2003 through 2010, out of the 57 industrial categories with
                           existing effluent guidelines at the time of review, EPA excluded 35 in each
                           of the four biennial screening cycles, thus omitting them from further
                           review of the availability of treatment technologies or production




                           Page 31                               GAO-12-845 EPA's Effluent Guidelines Program
processes that could reduce hazards from discharges. 32 (See app. III for
further information on the industrial categories that have and have not
come within the top 95 percent since 2003.)

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




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

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



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




Page 32                                            GAO-12-845 EPA's Effluent Guidelines Program
have not been revised since the 1980s for 8 of the 35 industrial
categories that have been excluded from further review. Further, 25 of the
35 effluent guidelines for categories that were excluded from further
review have not been revised since 1995 or earlier. Battery
manufacturing, for example, has not been through the further review
phase since EPA began using its current screening and review process.
Yet according to state officials we interviewed, the effluent guidelines for
this category apply to older battery types and do not address wastewater
from the manufacture of newer battery types, such as those made with
lithium. In addition, even in cases where EPA has revised the effluent
guideline for an industrial category, the revision may have addressed just
a portion of the guideline. For example, EPA may add pollutants or
change the limits for a particular industrial category or add a new
subcategory. Thus, the guidelines for the category as a whole may not
have been revised since the guidelines were originally promulgated.
Table 4 shows the 35 industrial categories that were excluded from
further review over the last 8 years, the year effluent guidelines were
promulgated, and the year the categories’ guidelines were most recently
revised.

Table 4: Regulated Industrial Categories Excluded in the Screening Phase from
Further Review, 2003-2010

                                                                          Number of
                                                        Year most      years elapsed
                                       Year             recently          since most
Industrial category                    promulgated      revised       recent revision
Porcelain enameling                    1982             1985                       27
Electrical and electronic components   1983             1985                       27
Electroplating                         1981             1986                       26
Copper forming                         1983             1986                       26
Metal finishing                        1983             1986                       26
Battery manufacturing                  1984             1986                       26
Aluminum forming                       1983             1988                       24
Nonferrous metals forming and metal
powders                             1985                1989                       23
Asbestos manufacturing                 1974             1995                       17
Canned and preserved fruits and
vegetables processing                  1974             1995                       17
Canned and preserved seafood
processing                             1974             1995                       17
Dairy products processing              1974             1995                       17




Page 33                                   GAO-12-845 EPA's Effluent Guidelines Program
                                                                                       Number of
                                                                   Year most        years elapsed
                                             Year                  recently            since most
 Industrial category                         promulgated           revised         recent revision
 Ferroalloy manufacturing                    1974                  1995                           17
 Glass manufacturing                         1974                  1995                           17
 Grain mills                                 1974                  1995                           17
 Soap and detergent manufacturing            1974                  1995                           17
 Sugar processing                            1974                  1995                           17
 Ink formulating                             1975                  1995                           17
 Paint formulating                           1975                  1995                           17
 Paving and roofing materials (tars
 and asphalt)                                1975                  1995                           17
 Explosives manufacturing                    1976                  1995                           17
 Gum and wood chemicals                      1976                  1995                           17
 Hospital                                    1976                  1995                           17
 Carbon black manufacturing                  1978                  1995                           17
 Leather tanning and finishing               1982                  1996                           16
 Pharmaceutical manufacturing                1983                  2003                            9
 Iron and steel manufacturing                1982                  2005                            7
 Transportation equipment cleaning           2000                  2005                            7
 Coil coating                                1982                  2007                            5
 Concentrated animal feeding
 operations                                  2003                  2008                            4
 Photographic                                1976                  No revisions        No revisions
 Metal products and machinery                2003                  No revisions        No revisions
 Concentrated aquatic animal                 2004                  No revisions        No revisions
 production
 Meat and poultry products                   2004                  No revisions        No revisions
 Construction and development                2009                  No revisions        No revisions
Source: GAO analysis of EPA documentation.


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

Our survey of state water quality directors, who are responsible for
NPDES permits, also identified industrial categories that have been
omitted from EPA’s further review phase even when treatment
technologies may be available. Specifically, state officials identified nine
industrial categories that they think pose significant risk and have
treatment technologies or pollution prevention practices available to
mitigate that risk, categories for which the effluent guidelines should be


Page 34                                           GAO-12-845 EPA's Effluent Guidelines Program
revised. Further, state officials generally thought that industries could
implement the technologies without financial hardship. Nevertheless, EPA
has excluded these industrial categories from further review because they
did not contribute to the top 95 percent of total reported hazard. At least
one state director identified one or more of the following nine industrial
categories as needing revised effluent guidelines, noting that their
pollutants were hazardous to human health or the environment and
technologies were available to further reduce these hazards: canned and
preserved seafood processing; dairy products processing; electrical and
electronic components; electroplating; grain mills; meat and poultry
products; metal finishing; pharmaceutical manufacturing; and sugar
processing. With regard to metal finishing, for example, state officials said
that existing guidelines reflect processes no longer in use and do not
address newer and more common production techniques and associated
pollutants. In contrast, state officials agreed with EPA’s efforts to revise or
develop new effluent guidelines for certain other industrial categories,
including steam electric power generation and airport deicing. (For more
information on our survey and its results, see appendix II.)

In its 2002 draft strategy, EPA recognized the importance of including
treatment technology in its screening phase but later stated that it was
unable to develop an approach it deemed feasible for gathering such
information. The draft strategy included treatment technology as one of
the factors that EPA would use to screen industrial categories to
determine if they needed new or revised effluent guidelines. According to
the draft strategy, EPA was to obtain information on available treatment
technologies and pollution prevention practices by regularly reviewing
trade publications; participating in professional conferences; and
consulting with permit writers, industry representatives, and the public.
EPA initially pursued this approach, but in 2003 concluded that gathering
the data needed to perform a meaningful screening-level analysis for
technology was much more resource intensive than anticipated 33 and
restricted the screening phase to comparing the degree of hazard posed
by various industrial categories. 34 Yet without treatment technology data,


33
  68 Fed. Reg. 75515, 75521 (Dec. 31, 2003) (“EPA found that it was much more difficult
than anticipated to gather the data needed to perform a meaningful screening-level
analysis of the availability of treatment or process technologies that might reduce hazard
or risk beyond the performance of technologies in place.”).
34
  Environmental Protection Agency, Factor 2 Analysis: Technology Advances and
Process Changes (Washington, D. C.: December 2003).




Page 35                                     GAO-12-845 EPA's Effluent Guidelines Program
                       the agency cannot be confident that the effluent guidelines program is
                       meeting the Clean Water Act’s goal of applying the best available
                       technologies economically achievable or that the program reflects
                       advances in the technologies used to reduce pollutants in wastewater.


                       EPA has begun to take actions to improve the hazard data it uses in its
EPA Is Adding Hazard   screening of industrial categories, but it is not fully using potential sources
Data Sources but Is    of information on treatment technologies for consideration in this
                       screening. According to program officials, EPA has recognized that its
Not Fully Using        screening phase has resulted in the same industries rising repeatedly to
Potential Sources of   the top of its hazard rankings. Program officials said that they are
Information on         considering changes to their screening approach to identify additional
                       industrial categories for further review. The primary change, the officials
Treatment              told us, would be to rank categories according to toxicity every 2 years,
Technologies           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. 35 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



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




                       Page 36                                     GAO-12-845 EPA's Effluent Guidelines Program
     are not being treated by an industrial facility and might need
     regulation;

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

•    a review of all EPA air pollution regulations issued within the last 10
     to15 years to identify new treatment processes that could add to or
     change the pollutants in wastewater streams; 36 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. 37

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


36
  Air pollution regulations can be relevant in that they may cause a shift in pollutants from
air emissions to wastewater or sludge. For example, EPA’s ongoing effort to revise the
effluent guidelines for the steam electric power-generating industry is in part a response to
changes in the industry’s wastewater as the plants installed scrubber equipment that uses
water to remove pollutants to comply with air pollution regulations to control sulfur dioxide.
37
  As of August 2012, the Office of Management and Budget is reviewing EPA’s draft
electronic reporting rule. Accordingly, EPA has not yet proposed the rule.




Page 37                                       GAO-12-845 EPA's Effluent Guidelines Program
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, 38 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


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




Page 38                                     GAO-12-845 EPA's Effluent Guidelines Program
    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.


Page 39                              GAO-12-845 EPA's Effluent Guidelines Program
              Program officials said that electronic transmission of fact sheets or
              information about the basis for permit limits could be useful in 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.


              EPA and the nation have made great strides in reducing the pollutants in
Conclusions   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


              Page 40                               GAO-12-845 EPA's Effluent Guidelines Program
                      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.


                      To improve the effectiveness of EPA’s efforts to update or develop new
Recommendations for   effluent guidelines, we recommend that the Administrator of EPA direct
Executive Action      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.



                      We provided a draft of this report to EPA for review and comment. In its
Agency Comments       written comments, which are reproduced in appendix IV, EPA said that
and Our Evaluation    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


                      Page 41                              GAO-12-845 EPA's Effluent Guidelines Program
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


Page 42                              GAO-12-845 EPA's Effluent Guidelines Program
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.




Page 43                             GAO-12-845 EPA's Effluent Guidelines Program
If you or your staff members have any questions about this report, please
contact me at (202) 512-3841 or trimbled@gao.gov. Contact points for
our Office of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix V.

Sincerely yours,




David C. Trimble
Director, Natural Resources and Environment




Page 44                             GAO-12-845 EPA's Effluent Guidelines Program
Appendix I: Scope and Methodology
             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


             Page 45                              GAO-12-845 EPA's Effluent Guidelines Program
Appendix I: Scope and Methodology




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


Page 46                              GAO-12-845 EPA's Effluent Guidelines Program
Appendix I: Scope and Methodology




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


Page 47                               GAO-12-845 EPA's Effluent Guidelines Program
Appendix I: Scope and Methodology




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.




Page 48                              GAO-12-845 EPA's Effluent Guidelines Program
Appendix II: Survey of State Water Quality
                       Appendix II: Survey of State Water Quality
                       Permit Writers and Analysis of Views about
                       Whether EPA Should Revise Effluent

Permit Writers and Analysis of Views about
                       Guidelines



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


                       Page 49                                      GAO-12-845 EPA's Effluent Guidelines Program
Appendix II: Survey of State Water Quality
Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines




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. 1 For each of these
five industrial categories, we asked states six questions, the first five of
which pertain to EPA’s decision-making factors and the last of which
pertains to the need for revised effluent guidelines. The six questions we
asked about each industry are as follows: 2

1. Are the existing effluent guidelines for this industry 3 sufficient on their
   own—that is, without additional water quality-based effluent limits—to
   protect your state from significant risks 4 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?




1
 Although these data have certain limitations, which we describe elsewhere in this report,
we determined they were sufficiently reliable for the purpose of selecting industries on
which to focus our survey questions.
2
 Because state officials might not have complete information about all the key factors for
each of the five industries, we allowed them to report their level of certainty in their
response by answering each of the questions with either definitely yes, probably yes,
probably no, definitely no, or don’t know or no response. We collapsed these five
categories into three categories—yes, no, and don’t know or no response—for
subsequent analysis.
3
 In the online version of the questionnaire, we customized the survey questions by
inserting the name of each of the specific industries for each state.
4
 We based our survey questions on EPA’s draft 2002 strategy, which uses the term risk
rather than the term hazard. To be consistent with the precise wording of the survey
questions, we use the term risk when describing the survey results. Elsewhere in this
report, we use the term hazard in accordance with our discussions with EPA officials
about the agency’s screening process, in which contaminants are first assessed for
hazard and then assessed for risk.




Page 50                                      GAO-12-845 EPA's Effluent Guidelines Program
                     Appendix II: Survey of State Water Quality
                     Permit Writers and Analysis of Views about
                     Whether EPA Should Revise Effluent
                     Guidelines




                     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.




                     Page 51                                      GAO-12-845 EPA's Effluent Guidelines Program
                                                Appendix II: Survey of State Water Quality
                                                Permit Writers and Analysis of Views about
                                                Whether EPA Should Revise Effluent
                                                Guidelines




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                               To determine the extent to which state officials think that effluent
Responses                                       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.

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

                                                      Probably yes or        Probably no or      Don’t know or no      Total number of
                                                                                                                                     a
                                                        definitely yes         definitely no             response               cases
                                                         (percentage)          (percentage)          (percentage)         (percentage)
Are the existing effluent guidelines for this                        51                    69                     2                 122
industry sufficient on their own—that is,                          (42)                  (57)                   (2)              (100%)
without additional water quality-based
effluent limits—to protect your state from
significant risks to human health or the
environment?
Is there a technology, process change, or                            38                    51                    34                  123
pollution prevention action available to this                      (31)                  (41)                  (28)                (100)
industry that would substantially reduce any
risks that remain after the state applies
existing effluent limits?




                                                Page 52                                      GAO-12-845 EPA's Effluent Guidelines Program
                                               Appendix II: Survey of State Water Quality
                                               Permit Writers and Analysis of Views about
                                               Whether EPA Should Revise Effluent
                                               Guidelines




                                                       Probably yes or                Probably no or    Don’t know or no       Total number of
                                                                                                                                             a
                                                         definitely yes                 definitely no           response                cases
                                                          (percentage)                  (percentage)        (percentage)          (percentage)
If yes to the previous question: Do you think                               31                      2                    5                     38
this industry can afford to implement this risk-                          (82)                    (5)                 (13)                  (100)
reducing technology, process change, or
pollution prevention action without
experiencing financial difficulty?
Are the current effluent guidelines for this                                30                     91                    2                    123
industry difficult to understand, implement,                              (24)                   (74)                  (2)                  (100)
monitor, or enforce?
Do you think the current effluent guidelines                                44                     59                   19                    122
for this industry could be revised to promote                             (36)                   (48)                 (16)                  (100)
innovative approaches, such as water quality
trading or multimedia benefits?
Given your responses to the previous                                        63                     60                    0                   123
questions, do you think EPA should revise                                 (51)                   (49)                  (0)                (100%)
the current effluent guidelines for this
industry?
                                               Source: GAO analysis of survey data.

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


                                               These tabulations indicate that a substantial number of cases exist for
                                               which states thought that EPA should revise effluent guidelines and also
                                               for which they perceived that one or more of EPA’s decision-making
                                               factors were present. In 51 percent (63 of 123 cases), state officials said
                                               that EPA should revise the effluent guidelines for the corresponding
                                               industry. With regard to whether the key decision-making 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



                                               Page 53                                              GAO-12-845 EPA's Effluent Guidelines Program
                             Appendix II: Survey of State Water Quality
                             Permit Writers and Analysis of Views about
                             Whether EPA Should Revise Effluent
                             Guidelines




                             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    We compared state officials’ views about whether effluent guidelines
Decision-Making Factors      should be revised with their views of each of the factors that EPA uses
and States’ Views about      when considering guideline revisions. For three of the four factors, our
                             results show that when state officials perceived the factor to be present,
Whether EPA Should           they were significantly more likely to think that EPA should revise the
Revise Effluent Guidelines   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



                             Page 54                                      GAO-12-845 EPA's Effluent Guidelines Program
                                              Appendix II: Survey of State Water Quality
                                              Permit Writers and Analysis of Views about
                                              Whether EPA Should Revise Effluent
                                              Guidelines




                                                   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.

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

                                       Do you think EPA should revise the current effluent guidelines for this industry?
                                                                                                                                              a
                                       Probably yes or definitely yes        Probably no or definitely no          Total number of cases
                                                        (percentage)                        (percentage)                    (percentage)
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?
Probably yes or definitely yes                                         10                                 41                             51
                                                                     (20)                               (80)                         (100%)
Probably no or definitely no                                           52                                 17                                 69
                                                                     (75)                               (25)                              (100)
Total                                                                  62                                 58                                120
                                                                     (52)                               (48)                              (100)
Is there a technology, process change, or pollution prevention action available to this industry that would substantially reduce any
risks that remain after the state applies existing effluent limits?
Probably yes or definitely yes                                         32                                  6                                 38
                                                                     (84)                               (16)                              (100)




                                              Page 55                                        GAO-12-845 EPA's Effluent Guidelines Program
                                              Appendix II: Survey of State Water Quality
                                              Permit Writers and Analysis of Views about
                                              Whether EPA Should Revise Effluent
                                              Guidelines




                                       Do you think EPA should revise the current effluent guidelines for this industry?
                                                                                                                                                   a
                                       Probably yes or definitely yes                Probably no or definitely no       Total number of cases
                                                        (percentage)                                (percentage)                 (percentage)
Probably no or definitely no                                                  10                               41                                51
                                                                            (20)                             (80)                             (100)
     b
Total                                                                         42                               47                                89
                                                                            (47)                             (53)                             (100)
If yes to the previous question: Do you think this industry can afford to implement this risk-reducing technology, process change, or
pollution prevention action without experiencing financial difficulty?
Probably yes or definitely yes                                                27                                4                                31
                                                                            (87)                             (13)                             (100)
Probably no or definitely no                                                   1                                1                                 2
                                                                            (50)                             (50)                             (100)
     c
Total                                                                         28                                5                                33
                                                                            (85)                             (15)                             (100)
Are the current effluent guidelines for this industry difficult to understand, implement, monitor, or enforce or could the current effluent
                                                                               d
guidelines for this industry be revised to promote innovative approaches?
Probably yes or definitely yes                                                43                               18                                61
                                                                            (70)                             (30)                             (100)
Probably no or definitely no                                                  18                               42                                60
                                                                            (30)                             (70)                             (100)
     a
Total                                                                         61                               60                              121
                                                                            (50)                             (50)                           (100%)
                                              Source: GAO analysis of survey data.

                                              a
                                               This column represents all cases for which the survey respondent selected one of the response
                                              options, which included “don’t know/no response,” for both the question on whether EPA should
                                              revise its effluent guidelines and the question on whether a given factor was present. It does not
                                              include responses from individuals who skipped the questions entirely.
                                              b
                                               Cases were excluded from this analysis if the response to either question in the cross-tabulation was
                                              “Don’t know or no response.”
                                              c
                                               This question pertained only to the cases for which respondents answered that a technology,
                                              process change, or pollution prevention action was available.
                                              d
                                               This category combines two survey questions. Cases in this category were coded as “probably yes
                                              or definitely yes” if that response was given to either of the two questions.



Decision Tree of States’                      To understand how the various decision-making factors interact to
Views about Whether EPA                       influence states’ views about the need for revised effluent guidelines, we
Should Revise Effluent                        used the data from our survey to conduct decision-tree analysis. We
                                              developed the decision tree by splitting the data into smaller and smaller
Guidelines                                    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



                                              Page 56                                              GAO-12-845 EPA's Effluent Guidelines Program
Appendix II: Survey of State Water Quality
Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines




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.




Page 57                                      GAO-12-845 EPA's Effluent Guidelines Program
                                          Appendix II: Survey of State Water Quality
                                          Permit Writers and Analysis of Views about
                                          Whether EPA Should Revise Effluent
                                          Guidelines




Figure 5: Decision Tree of State Officials’ Views of Whether EPA Should Revise Effluent Guidelines for Specific Industrial
Categories




                                          Note: This analysis is based on 119 industry-by-state cases from our survey of state water quality
                                          permit writers. Each case represents the views of a single state about a single industry in that state.
                                          a
                                           Whether the state official views the effluent from a particular industry to pose a significant risk to
                                          human health or the environment, according to their response to the first question on our survey.

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

                                          c
                                           Whether the state official views other factors to be present—such as current guidelines difficult to
                                          enforce or revised guidelines able to promote innovative approaches—according to the fourth and
                                          fifth questions in our survey.




                                          Page 58                                              GAO-12-845 EPA's Effluent Guidelines Program
Appendix II: Survey of State Water Quality
Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines




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


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.




Page 59                                          GAO-12-845 EPA's Effluent Guidelines Program
Appendix II: Survey of State Water Quality
Permit Writers and Analysis of Views about
Whether EPA Should Revise Effluent
Guidelines




•   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: 1

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



1
 Responses were evenly split when risk was perceived to be present, state officials were
uncertain whether technology was available, and they did not report that other factors
were present. This split is illustrated by the branch of the decision tree in the second
column from the right.




Page 60                                      GAO-12-845 EPA's Effluent Guidelines Program
                             Appendix II: Survey of State Water Quality
                             Permit Writers and Analysis of Views about
                             Whether EPA Should Revise Effluent
                             Guidelines




                                 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    Corresponding to this decision tree, we further examined the data to
Which States Thought         identify specific industrial categories that presented the strongest
Effluent Guidelines Should   evidence for needing to be revised. Because the significance of risk and
                             the presence of technology are the two primary decision-making factors,
Be Revised                   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.




                             Page 61                                      GAO-12-845 EPA's Effluent Guidelines Program
Appendix III: Additional Details on Industrial
                                          Appendix III: Additional Details on Industrial
                                          Categories with Effluent Guidelines



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.

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

                                                                                     Year(s) the industrial category was in the top
                                                                                               95 percent of total hazard
                                                           Year most
                                               Year        recently
Industrial category                            promulgated revised                         2010        2008       2006        2004
Airport deicing                                2012             Not revised
Aluminum forming                               1983             1988
Asbestos manufacturing                         1974             1995
Battery manufacturing                          1984             1986
Canned and preserved fruits and vegetables     1974             1995
processing
Canned and preserved seafood processing        1974             1995
Carbon black manufacturing                     1978             1995
Cement manufacturing                           1974             1995                        X
Centralized waste treatment                    2000             2003                                     X
Coal mining                                    1985             2002                        X
Coil coating                                   1982             2007
Concentrated animal feeding operations         2003             2008
Concentrated aquatic animal production         2004             Not revised
Construction and development                   2009             Not revised
Copper forming                                 1983             1986
Dairy products processing                      1974             1995




                                          Page 62                                           GAO-12-845 EPA's Effluent Guidelines Program
                                            Appendix III: Additional Details on Industrial
                                            Categories with Effluent Guidelines




                                                                                       Year(s) the industrial category was in the top
                                                                                                 95 percent of total hazard
                                                              Year most
                                                  Year        recently
Industrial category                               promulgated revised                        2010        2008       2006        2004
Electrical and electronic components              1983            1985
Electroplating                                    1981            1986
Explosives manufacturing                          1976            1995
Ferroalloy manufacturing                          1974            1995
Fertilizer manufacturing                          1974            1995                        X            X          X           X
Glass manufacturing                               1974            1995
Grain mills                                       1974            1995
Gum and wood chemicals manufacturing              1976            1995
Hospital                                          1976            1995
Ink formulating                                   1975            1995
Inorganic chemicals manufacturing                 1982            1984                        X            X          X           X
Iron and steel manufacturing                      1982            2005
Landfills                                         2000            2000                        X
Leather tanning and finishing                     1982            1996
Meat and poultry products                         2004            Not revised
Metal finishing                                   1983            1986
Metal molding and casting                         1985            1986                        X
Metal products and machinery                      2003            Not revised
Mineral mining and processing                     1975            1995                        X
Nonferrous metals forming and metal powders       1985            1989
Nonferrous metals manufacturing                   1984            1990                        X            X          X           X
                                                                        a
Oil and gas extraction                            1979            2012                        X
Ore mining and dressing                           1982            1988                        X            X          X           X
Organic chemicals, plastics, and synthetic fibers 1987            1993                        X            X          X           X
Paint formulating                                 1975            1995
Paving and roofing materials (tars and asphalt)   1975            1995
Pesticide chemicals                               1978            1998                        X            X          X
Petroleum refining                                1982            1985                        X            X          X           X
Pharmaceutical manufacturing                      1983            2003
Phosphate manufacturing                           1974            1986                                                            X
Photographic                                      1976            Not revised
Plastics molding and forming                      1984            1985                        X                       X
Porcelain enameling                               1982            1985
                                                                        a
Pulp, paper, and paperboard                       1998            2012                        X            X          X           X




                                            Page 63                                           GAO-12-845 EPA's Effluent Guidelines Program
                                    Appendix III: Additional Details on Industrial
                                    Categories with Effluent Guidelines




                                                                                 Year(s) the industrial category was in the top
                                                                                           95 percent of total hazard
                                                       Year most
                                           Year        recently
Industrial category                        promulgated revised                       2010            2008         2006           2004
Rubber manufacturing                       1974                 1995                   X
Soap and detergent manufacturing           1974                 1995
                                                                       a
Steam electric power generating            1982                 2012                                   X            X              X
Sugar processing                           1974                 1995
Textile mills                              1982                 1983                   X                            X              X
Timber products processing                 1981                 2004                                                               X
Transportation equipment cleaning          2000                 2005
Waste combustors                           2000                 2004                   X               X
                                    Source: GAO analysis of EPA documentation.


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




                                    Page 64                                            GAO-12-845 EPA's Effluent Guidelines Program
Appendix IV: Comments from the
             Appendix IV: Comments from the
             Environmental Protection Agency



Environmental Protection Agency




             Page 65                           GAO-12-845 EPA's Effluent Guidelines Program
Appendix IV: Comments from the
Environmental Protection Agency




Page 66                           GAO-12-845 EPA's Effluent Guidelines Program
Appendix V: GAO Contact and Staff
                  Appendix V: GAO Contact and Staff
                  Acknowledgments



Acknowledgments

                  David C. Trimble, (202) 512-3841 or trimbled@gao.gov
GAO Contact

                  In addition to the individual named above, Susan Iott (Assistant Director),
Staff             Elizabeth Beardsley, Mark Braza, Ross Campbell, Ellen W. Chu, Heather
Acknowledgments   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.




(361320)
                  Page 67                             GAO-12-845 EPA's Effluent Guidelines Program
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