Clean Water Act Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 432

[EPA-HQ-OW-2021-0736; FRL-8885-01-OW]

RIN 2040-AG22

Clean Water Act Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule and notice of public hearing.

SUMMARY:

The Environmental Protection Agency (EPA or the Agency) is proposing a regulation to revise the technology-based effluent limitations guidelines and standards (ELGs) for the meat and poultry products (MPP) point source category. The proposed rule would improve water quality and protect human health and the environment by reducing the discharge of nutrients and other pollutants to the nation's surface waters. EPA is proposing several regulatory options, including the preferred option discussed in this notice. The preferred option is estimated to cost $232 million annually and reduce pollutant discharges by approximately 100 million pounds per year.

DATES:

Comments must be received on or before March 25, 2024.

Public hearing:

EPA will hold two public hearings about this proposed rule on January 24, 2024 and January 31, 2024. Visit EPA's website at

https://www.epa.gov/eg/meat-and-poultry-products-effluent-guidelines-2024-proposed-rule

for additional information about the public hearings and for any potential changes to the public hearing schedule.

ADDRESSES:

You may send comments, identified by Docket ID No. EPA-HQ-OW-2021-0736, by any of the following methods:

•

Federal eRulemaking Portal: https://www.regulations.gov/

(our preferred method). Follow the online instructions for submitting comments.

•

Mail:

U.S. Environmental Protection Agency, EPA Docket Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, Washington, DC 20460.

•

Hand Delivery or Courier:

EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., Monday-Friday (except Federal Holidays).

Instructions:

All submissions received must include the Docket ID No. for this rulemaking. Comments received may be posted without change to

https://www.regulations.gov/,

including any personal information provided. For detailed instructions on sending comments and additional information on the rulemaking process, see the “Public Participation” heading of the

SUPPLEMENTARY INFORMATION

section of this document.

FOR FURTHER INFORMATION CONTACT:

Steve Whitlock, Engineering and Analysis Division, Office of Water (4303T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-566-1541; email address:

Whitlock.Steve@epa.gov.

SUPPLEMENTARY INFORMATION:

Preamble Acronyms and Abbreviations.

EPA uses multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, EPA defines terms and acronyms used in Appendix A of this preamble.

Supporting Documentation.

The proposed rule is supported by several documents, including:

• Technical Development Document for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (TDD), Document No. 821-R-23-011. This report summarizes the technical and engineering analyses supporting the proposed rule including cost methodologies, pollutant removal estimates, non-water quality environmental impacts, and calculation of the proposed effluent limitations.

• Environmental Assessment Analysis for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (EA Report), Document No. 821-R-23-012. This report summarizes the potential environmental and human health impacts estimated to result from implementation of the proposed rule. The report also describes the environmental justice analysis conducted.

• Benefit and Cost Analysis for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (BCA Report), Document No. 821-R-23-013. This report summarizes the societal benefits and costs estimated to result from implementation of the proposed rule.

• Regulatory Impact Analysis for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (RIA), Document No. 821-R-23-014. This report presents a profile of the MPP industry, a summary of estimated costs and impacts associated with the proposed rule, and an assessment of the potential impacts on employment and small businesses.

• Docket Index for the Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category. This document provides a list of the additional memoranda, references, and other information EPA relied on for the proposed revisions to the MPP ELGs.

Table of Contents

I. Executive Summary

A. Purpose of Rule

B. Summary of Proposed Rule

II. Public Participation

III. General Information

A. Does this action apply to me?

B. What action is the Agency taking?

C. What is the Agency's authority for taking this action?

D. What are the incremental costs and benefits of this action?

IV. Background

A. Clean Water Act

B. Effluent Limitations Guidelines and Standards

1. Best Practicable Control Technology Currently Available (BPT)

2. Best Conventional Pollutant Control Technology (BCT)

3. Best Available Technology Economically Achievable (BAT)

4. Best Available Demonstrated Control Technology (BADCT) for New Source Performance Standards (NSPS)

5. Pretreatment Standards for Existing Sources (PSES)

6. Pretreatment Standards for New Sources (PSNS)

C. Actions Leading to Revisions to the Meat and Poultry Products Rule

1. National Review of Nutrient Discharges From Industrial Sources

2. Detailed Study of Meat and Poultry Products

3. Announcement of Rule in Preliminary Effluent Guidelines Plan 15

4. Litigation and Consent Decree

V. Meat and Poultry Products Industry Description

A. General Description of Industry

B. Control and Treatment Technologies

1. Conventional Pollutant Removal

2. Biological/Organic Pollutant Removal

3. Phosphorus Removal

4. Pathogen Removal

5. Chlorides Removal

6. Solids Handling

VI. Data Collection

A. Information From the Meat and Poultry Products Industry

1. Survey

2. Stakeholder Meetings and Outreach

B. Economic Data

1. Facility and Firm-Level Economic Data

2. Industry and Sector-Level Economic Data

C. Other Data Sources

1. Site Visits

2. Wastewater Sampling

VII. Proposed Regulation

A. Description of the Options

B. Proposed Changes to Subcategories

C. Rationale for the Preferred Option (Option 1)

1. Direct Discharging Facilities (BAT)

a. Availability of Nitrogen and Phosphorus Removal Technologies

b. Economic Achievability of Nitrogen and Phosphorus Removal

c. Non-Water Quality Environmental Impacts of Nitrogen and Phosphorus Removal

2. Indirect Discharging Facilities (PSES/PSNS)

a. BAT Rationale for PSES/PSNS for Nutrients

b. BPT/BCT Rationale for PSES/PSNS for Conventional Pollutant

c. Technological Availability

d. Costs of Conventional Pollutants Removal (BPT/BCT)

e. Non-Water Quality Environmental Impacts (BPT/BCT)

D. Rationale for Other Regulatory Options Proposed (Options 2 and 3)

E. Rationale for Rejecting Options 2 and 3 as the Preferred Option

F. Additional Provisions

G. Small Business Considerations From the Small Business Advocacy Review Panel

VIII. Costs, BPT Wholly Disproportionate Cost Test, Economic Achievability, and Other Economic Impacts

A. BPT Wholly Disproportionate Cost Test

B. BCT Cost Test

C. Economic Achievability Analysis for BAT

1. Facility Closure Analysis (BAT)

2. BAT Cost-to-Revenue Analyses

D. Other Economic Analyses

1. Facility Closure Analysis

2. Facility and Firm Level Cost-to-Revenue Analyses

3. Market Effects

4. Employment Effects

5. Chlorides Removal Costs and Impacts

IX. Pollutant Loadings

A. Estimate of Existing Industry Pollutant Discharges

B. Summary of Incremental Changes of Pollutant Loadings From Regulatory Options

X. Non-Water Quality Environmental Impacts

A. Energy Requirements

B. Air Pollution

C. Solid Waste Generation

XI. Environmental Assessment

A. Introduction

B. Summary of Environmental and Human Health Impacts

C. Environmental Assessment Methodology

D. Results From the Environmental Assessment

1. Improvements in Surface Water Quality

2. Improvements to Vulnerable Species Habitats

3. Human Health Impact Improvements

XII. Benefits Analysis

A. Categories of Benefits Analyzed

B. Quantification and Monetization of Benefits

1. Human Health Effects From Surface Water Quality Changes

2. Ecological Condition and Recreational Use Effects From Changes in Surface Water Quality Improvements

3. Changes in Air Quality Related Effects

4. Other Quantified and/or Monetized Benefits

C. Total Monetized Benefits

D. Non-Monetized Benefits

XIII. Environmental Justice Impacts

A. Literature Review

B. Screening Analysis

C. Community Outreach

D. Distribution of Benefits

1. Drinking Water Quality

2. Fisher Population

E. Results of the Analysis

XIV. Development of Effluent Limitations and Standards

A. Criteria Used To Select Data as the Basis for the Limitations and Standards

B. Data Selection for Each Technology Option

XV. Regulatory Implementation

A. Implementation of New Limitations and Standards

B. Reporting and Recordkeeping Requirements

C. Applicability of PSNS/NSPS Requirements

XVI. Related Acts of Congress, E.O.s, and Agency Initiatives

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 14094: Modernizing Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. E.O. 13132: Federalism

F. E.O. 13175: Consultation and Coordination With Indian Tribal Governments

G. E.O. 13045: Protection of Children From Environmental Health Risks and Safety Risks

H. E.O. 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

I. National Technology Transfer and Advancement Act

J. E.O. 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations; Executive Order 14096 Revitalizing Our Nation's Commitment to Environmental Justice for All

Appendix A to the Preamble: Definitions, Acronyms, and Abbreviations Used in This Preamble

I. Executive Summary

A. Purpose of Rule

EPA is proposing revisions to a regulation that would apply to wastewater discharges from meat and poultry products (MPP) facilities. The MPP industry discharges large quantities of nutrients, such as nitrogen and phosphorus, that enter the Nation's waters. Nutrient pollution is one of the most widespread, costly, and challenging environmental problems impacting water quality in the United States. Excessive nitrogen and phosphorus in surface water can lead to a variety of problems, including eutrophication and harmful algal blooms, that have negative impacts on human health and the environment. EPA reported in

Preliminary Effluent Guidelines Program Plan 15

(Preliminary Plan 15. USEPA. 2021. EPA-821-R-21-003) that the MPP industry discharges the highest phosphorus levels and second highest nitrogen levels of all industrial categories.

The MPP industry has an estimated 5,055 facilities across the country that engage in meat and/or poultry slaughter, further processing, and/or rendering. Proposed requirements would reduce the amount of nutrients and other pollutants discharged from the MPP industry, both directly into waters of the United States under state or EPA-issued NPDES permits and indirectly via sanitary sewers or transport to and through municipal sewage treatment plants, also known as Publicly Owned Treatment Works (POTWs). Importantly, this rule would advance progress on environmental justice goals.

EPA initially promulgated the MPP ELGs in 1974 and amended the regulation in 2004. It currently applies only to direct dischargers (those that discharge directly to a water of the United States), and only to about 150 of the 5,055 MPP facilities in the industry. Phosphorus is not regulated under the current ELGs. Pollutants in the wastewater from MPP indirect dischargers, which are not currently regulated by the ELGs, can interfere with or pass through POTWs. Research also shows communities near MPP facilities are likely to experience multiple environmental stressors, and in these communities, minority and low-income percentiles exceed national averages. Additionally, some MPP facilities are already using available and affordable technologies that can be used at additional facilities nationwide to reduce pollutant discharges from the MPP industry.

EPA is considering a range of options in this rulemaking. The options include more stringent effluent limitations on total nitrogen, new effluent limitations on total phosphorus, updated effluent limitations for other pollutants, new pretreatment standards for indirect dischargers, and revised production thresholds for some of the subcategories in the existing rule. EPA is also requesting comment on potential effluent limitations on chlorides for high chloride waste streams, establishing effluent limitations for

E.

coli

for direct dischargers, and including conditional limits for indirect dischargers that discharge to POTWs that remove nutrients to the extent that would be required under the proposed pretreatment standards in certain regulatory options. Each option would result in different levels of pollutant reduction and costs.

EPA is proposing a preferred regulatory option (described in section VII below) and seeking comment on the other options. EPA estimates the preferred regulatory option (Option 1) would reduce pollutant discharges by approximately 100 million pounds per year. EPA predicts the preferred regulatory option would result in environmental and ecological improvements, including reduced adverse impacts to wildlife and human health.

EPA estimates that the proposed rule based on the preferred regulatory option will cost $232 million per year in social costs and result in $90 million per year in monetized benefits using a 3 percent discount rate and $227 million per year in social costs and result in $85 million per year in monetized benefits using a 7 percent discount rate. The benefit numbers are based on modeling water quality improvements in five regional water basins and then extrapolating the benefits results from those basins to remainder of the country.

1

The benefit estimates also include the national effects of increased air pollution and greenhouse gas emissions under the rule.

1

See Section 3 of the Benefit and Costs Analysis for descriptions of the water quality modeling and monetized benefit calculations. See Appendix E of the Benefit and Costs Analysis for descriptions of the approach for extrapolating the regional water quality benefits to the rest of the country.

Not all costs and benefits can be fully quantified and monetized, and importantly, EPA anticipates the proposed rule would also generate important unquantified benefits (

e.g.,

improved habitat conditions for plants, invertebrates, fish, amphibians, and the wildlife that prey on aquatic organisms). Furthermore, while some health benefits and willingness to pay for water quality improvements have been quantified and monetized, those estimates may not fully capture all important water quality-related benefits.

B. Summary of Proposed Rule

EPA proposes to revise the ELGs for the MPP industry based on Best Practicable Control Technology Currently Available (BPT), Best Conventional Pollutant Control Technology (BCT), Best Available Technology Economically Achievable (BAT), Best Available Demonstrated Control Technology (BADCT) for New Source Performance Standards (NSPS), Pretreatment Standards for Existing Sources (PSES), and Pretreatment Standards for New Sources (PSNS). BPT, BCT, and BAT would apply to existing facilities that directly discharge to waters of the U.S. BADCT/NSPS would apply to new sources that directly discharge to waters of the U.S. PSES and PSNS would apply to existing and new sources, respectively, that discharge indirectly via POTWs.

EPA is proposing three regulatory options that build on the current MPP ELGs. Option 1, which is EPA's preferred regulatory option in this proposed rule, would include new phosphorus limits and revised nitrogen limits

2

for large direct dischargers and new pretreatment standards on certain conventional pollutants for large indirect dischargers. Here, large refers to the existing production thresholds in the current MPP ELGs. Option 2 would include the requirements in Option 1 and add nutrient limits for indirect discharging first processors and renderers above specified production thresholds. Option 3 would be similar to Option 2 but with lower production thresholds for the nutrient limits and conventional pollutant limits for both direct and indirect dischargers. In contrast to Options 1 and 2, Option 3 would use lower production thresholds than those in the existing rule. All three options would minimize impacts to small firms, based on the impact thresholds described in EPA's Regulatory Flexibility Act guidance for assessing impacts to small firms in terms of a cost to revenue ratio. While Option 3 includes limits for more facilities than Options 1 and 2, it is similarly structured to avoid significant impacts to small firms. Option 3 would achieve the greatest amount of pollutant reductions of the three options. Option 3 would also simplify the existing rule by utilizing the same size thresholds for all subcategories. For example, total phosphorus limits would apply to direct discharging facilities in all subcategories producing greater than or equal to 10 million pounds per year under Option 3. Under Options 2 and 3, EPA also proposes to include “conditional limits,” which would allow an exemption from nutrient pretreatment standards for indirect dischargers that are discharging to POTWs that have nutrient removal capabilities that result in equivalent nutrient removal.

2

The terms nitrogen and phosphorus refer to total nitrogen and total phosphorus throughout this document.

The following discussion is organized by discharge type (direct or indirect) and by facility status (existing or new):

Direct Discharges From Existing Sources

Options 1 and 2:

BAT would include new phosphorus effluent limitations based on chemical removal and more stringent nitrogen effluent limitations based on biological treatment to achieve full denitrification. BCT and BPT for the conventional pollutants (biochemical oxygen demand (BOD), total suspended solids (TSS), oil & grease, pH) limits would remain unchanged from the current MPP ELG. These limits would apply to direct discharging facilities based on the same production thresholds as the existing rule: 50 million pounds per year of finished product produced for meat further processors (Subcategories F-I), 50 million pounds per year of live weight killed (LWK) for meat slaughtering (Subcategories A-D), 100 million pounds per year of LWK for poultry slaughtering (Subcategories K), 7 million pounds of finished product per year for poultry further processors (Subcategory L), and 10 million pounds per year of raw material processed for renderers (Subcategory J). The limits for facilities in Subcategory E would not be changed.

Option 3:

BAT would include the same BAT requirements as Option 1, with lower production thresholds for applicability. Specifically, BAT would include new phosphorus effluent limitations based on chemical removal for facilities in all subcategories that are producing greater than or equal to 10 million pounds per year. Additionally, BAT would include new and/or more stringent nitrogen limits based on biological treatment to achieve full denitrification for facilities in all subcategories producing greater than or equal to 20 million pounds per year. BAT for ammonia as N limits and BCT and BPT limits for conventional pollutants (BOD, TSS, oil & grease, fecal coliform, pH) limits would remain unchanged from the current MPP ELGs. The limits for facilities in Subcategory E would not be changed.

Indirect Discharges to POTWs From Existing Sources

Option 1:

PSES would include new conventional pollutant limits based on BPT and BCT limits for BOD, TSS, and oil & grease based on screening and dissolved air flotation (DAF) technology. Under this option, pretreatment standards would apply to facilities producing greater than: 50

million pounds per year of finished product for meat further processors (Subcategories F-I), 50 million pounds per year of LWK for meat slaughtering (Subcategories A-D), 100 million pounds per year of LWK for poultry slaughtering (Subcategory K), 7 million pounds per year of finished product for poultry further processors (Subcategory L), and 10 million pounds per year of raw material processed by renderers (Subcategory J). No new PSES based on pretreatment standards for nitrogen and phosphorus would be established under Option 1.

Option 2:

Option 2 would include the same PSES requirements for conventional pollutants as Option 1. Additionally, PSES would include new pretreatment standards based on BAT for phosphorus based on chemical removal and new nitrogen pretreatment standards based on biological treatment to achieve full denitrification. The nitrogen and phosphorus PSES requirements would include facilities with production thresholds greater than or equal to: 200 million pounds per year of LWK for meat slaughtering (Subcategories A-D), 200 million pounds per year of LWK for poultry slaughtering (Subcategory K), and 350 million pounds per year processed by renderers (Subcategory J).

Option 3:

Option 3 would include the same PSES requirements as Option 2, with lower production thresholds for applicability. Specifically, PSES would include new conventional pollutant pretreatment standards based on BPT/BCT for BOD, TSS, and oil & grease based on screening and DAF techniques for all indirect MPP facilities producing greater than 5 million pounds per year. Additionally, PSES would include new phosphorus and nitrogen pretreatment standards based on BAT for all indirect MPP facilities producing greater than 30 million pounds per year.

Direct Discharges From New Sources

Under all options, NSPS based on BADCT would be equal to BAT, BPT, and BCT. Thus, Options 1, 2 and 3 would contain the same requirements for existing and new direct discharging facilities.

Indirect Discharges From New Sources

Under all options, PSNS would be equal to PSES. Thus, Options 1, 2, and 3 would contain the same requirements for existing and new indirect discharging facilities.

Additional details about the proposed ELGs are described in Section VII of this preamble.

II. Public Participation

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2021-0736, at

https://www.regulations.gov

(our preferred method), or the other methods identified in the

ADDRESSES

section. Once submitted, comments cannot be edited or removed from the docket. EPA may publish any comment received to its public docket. Do not submit to EPA's docket at

https://www.regulations.gov

any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (

i.e.,

on the web, cloud, or other file sharing system). Please visit

https://www.epa.gov/dockets/commenting-epa-dockets

for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

III. General Information

A. Does this action apply to me?

Entities potentially regulated by any final rule following this action include:

Table III-1

Category

Example of regulated entity

North American

Industry

Classification

System

(NAICS) Code

Industry

Facilities engaged in slaughtering, further processing, or rendering of meat and poultry products, which may include the following sectors:

Meat Packing Plants

31161

Animal (except Poultry) Slaughtering

311611

Meat Processed from Carcasses

311612

Sausages and Other Prepared Meat Products

311612

Poultry Slaughtering and Processing

311615

Meat & Meat Product Wholesalers

422470

Poultry Processing

311615

Rendering and Meat By-Product Processing

311613

Support Activities for Animal Production

11521

Prepared Feed and Feed Ingredients for Animals and Fowls, Except Dogs and Cats

311119

Dog and Cat Food Manufacturing

311111

Other Animal Food Manufacturing

311119

All Other Miscellaneous Food Manufacturing

311999

Animal and Marine Fats and Oils

311613

Livestock Services, Except Veterinary

311611

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table includes the types of entities that the EPA is now aware could potentially be regulated by this action. Other types of entities not included could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR 432.1, 432.10, 432.20, 432.30, 432.40, 432.50, 432.60, 432.70, 432.80, 432.90, 432.100, 432.110, and 432.120 and the definitions in 40 CFR 432.2. If you have questions regarding the applicability of this action to a particular entity, consult

the person listed in the

FOR FURTHER INFORMATION CONTACT

section.

B. What action is the Agency taking?

The Agency is proposing to revise the existing MPP ELGs and is soliciting comment on possible revisions and additions to the ELGs for existing and new sources in the MPP point source category.

C. What is the Agency's authority for taking this action?

EPA is proposing to promulgate this rule under the authority of sections 301, 304, 306, 307, 308, 402, and 501 of the Clean Water Act (CWA), 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361.

D. What are the incremental costs and benefits of this action?

This proposed action is estimated to cost $232 million per year in social costs and result in $90 million per year in monetized benefits using a 3 percent discount rate and $227 million per year in social costs and result in $85 million per year in monetized benefits using a 7 percent discount rate. The current benefit numbers reflect the national effects of increased air pollution and greenhouse gas emissions under the rule. EPA also expects that there will be additional non-monetized benefits that result from the proposed action. See the Benefits Cost Analysis for additional information on monetization and quantification of health, ecological, market, and economic productivity benefits.

IV. Background

A. Clean Water Act

Congress passed the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act (“CWA” or “the Act”), to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters” (33 U.S.C. 1251(a)). The CWA establishes a comprehensive program for protecting our nation's waters. Among its core provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the United States (WOTUS), except as authorized under the CWA. Under section 402 of the CWA, discharges may be authorized through a National Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes a two-pronged approach for these permits: technology-based controls that establish the floor of performance for all dischargers, and water quality-based limits where the technology-based limits are insufficient for the discharge to meet applicable water quality standards. To serve as the basis for the technology-based controls, the CWA authorizes EPA to establish nationally applicable, technology-based effluent limitations guidelines and new source performance standards for discharges from different categories of point sources, such as industrial, commercial, and public sources.

Direct dischargers must comply with effluent limitations in NPDES permits. Technology-based effluent limitations in NPDES permits are derived from effluent limitations guidelines (CWA sections 301(b) and 304, 33 U.S.C. 1311(b) and 1314) and new source performance standards (CWA section 306, 33 U.S.C. 1316) promulgated by EPA, or based on best professional judgment (BPJ) where EPA has not promulgated an applicable effluent limitations guideline or new source performance standard (CWA section 402(a)(1)(B), 33 U.S.C. 1342(a)(1)(B); 40 CFR 125.3(c)). The effluent limitations guidelines and new source performance standards established by regulation for categories of industrial dischargers are based on the degree of control that can be achieved using various levels of pollution control technology, as specified in the Act.

The CWA also authorizes EPA to promulgate nationally applicable pretreatment standards that restrict pollutant discharges from categories of indirect dischargers (

i.e.,

facilities that introduce wastewater to POTWs), as outlined in CWA sections 307(b) and (c), and 304(g) (33 U.S.C. 1317(b) and (c), and 1314(g)). EPA establishes national categorical pretreatment standards for those pollutants in wastewater from indirect dischargers that may pass through, interfere with, or are otherwise incompatible with POTW operations (CWA section 307(b), 33 U.S.C. 1317(b)). Generally, in determining whether pollutants pass through a POTW when considering the establishment of categorical pretreatment standards, EPA compares the percentage of pollutant removed by typical POTWs achieving secondary treatment with the percentage of the pollutant removed by facilities meeting the candidate technology basis (

e.g.,

BPT or BAT) (46 FR 9408, 9416 (Jan. 28, 1981)). A pollutant is deemed to pass through a POTW when the average percentage removed by well-operated POTWs performing secondary treatment is less than the average percentage removed by direct dischargers operating the BPT/BAT technology basis. Pretreatment standards are designed to ensure that wastewaters from direct and indirect industrial dischargers are subject to similar levels of treatment (CWA section 301(b) and 33 U.S.C. 1311(b). The legislative history of the 1977 CWA amendments explains that pretreatment standards are technology-based and analogous to technology-based effluent limitations for direct dischargers. As further explained in the legislative history, the combination of pretreatment and treatment by the POTW is intended to achieve the level of treatment that would be required if the industrial source were making a direct discharge (Conf. Rep. No. 95-830, at 87 (1977), reprinted in U.S. Congress, Senate Committee on Public Works (1978),

A Legislative History of the CWA of 1977,

Serial No. 95-14 at 271 (1978)). For categorical pretreatment standards, EPA's approach for passthrough satisfies two competing objectives set by Congress: (1) That standards for indirect dischargers be equivalent to standards for direct dischargers; and (2) that the treatment capability and performance of the POTWs be recognized and taken into account in regulating the discharge of pollutants from indirect dischargers (CWA sections 301(b)(1)(A) and 301(b)(1)(E) (33 U.S.C. 1311(b)(1)(A) and 1311(b)(1)(E)). In addition, POTWs are required to implement local treatment limits applicable to their industrial indirect dischargers to satisfy any local requirements (40 CFR 403.5).

EPA promulgates national ELGs for major industrial categories for three classes of pollutants: (1) Conventional pollutants (

i.e.,

BOD, TSS, oil & grease, fecal coliform, and pH), as outlined in CWA section 304(a)(4) (33 U.S.C. 1314(a)(4) and 40 CFR 401.16); (2) toxic pollutants (

e.g.,

toxic metals such as arsenic, mercury, selenium, and chromium; toxic organic pollutants such as benzene, benzo-a-pyrene, phenol, and naphthalene), as outlined in CWA section 307(a) (33 U.S.C. 1317(a), 40 CFR 401.15, and 40 CFR 423 appendix A); and (3) nonconventional pollutants, which are those pollutants that are not categorized as conventional or toxic (

e.g.,

ammonia-N, nitrogen, phosphorus, and total dissolved solids (TDS)).

B. Effluent Limitations Guidelines and Standards (ELGs)

EPA develops ELGs that are technology-based regulations for a category of dischargers. EPA bases these regulations on performance of control and treatment technologies in light of the factors specified in CWA section 304(b) and 306 (33 U.S.C. 1314(b), 1316), but after the limitations and standards are established, dischargers may use any technology that meets the limitations and standards. The legislative history of CWA section 304(b) (33 U.S.C. 1314(b)), which is the heart of the effluent guidelines program,

describes the need to press toward higher levels of control through research and development of new processes, modifications, replacement of obsolete plants and processes, and other improvements in technology, taking into account the cost of controls. Congress has also stated that EPA does not consider water quality impacts on individual water bodies as the guidelines are developed (Statement of Senator Muskie, October 4, 1972, reprinted in

A Legislative History of the Water Pollution Control Act Amendments of 1972,

at 170. (U.S. Senate, Committee on Public Works, Serial No. 93-1, January 1973);

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1005, “The Administrator must require industry, regardless of a discharge's effect on water quality, to employ defined levels of technology to meet effluent limitations.” (citations and internal quotations omitted). CWA sections 304(b), 304(g), and 306(b) (33 U.S.C. 1314(b), 1314(g) and 1316(b)) authorize revision of ELGs where appropriate.

The CWA specifies four types of technology-based ELGs applicable to direct dischargers and two types of pretreatment standards applicable to indirect dischargers, referred to collectively as “effluent limitations guidelines and standards (ELGs)”. These ELGs are summarized below.

1. Best Practicable Control Technology Currently Available (BPT)

For existing direct dischargers, the Act specifies two increasingly-stringent levels of control. The first level of control, BPT, applies to all pollutants (conventional, toxic, and nonconventional pollutants). Traditionally, as is consistent with the statute, its legislative history and caselaw, EPA defines “currently available” based on the average of the best performance of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics (

Chem. Mfrs. Assn.

v.

EPA,

870 F.2d 177, 207-208 (1989)). The statute specifies a number of factors for consideration in establishing or revising BPT: the cost of achieving effluent reductions in relation to the effluent reduction benefits, the age of equipment and facilities, the processes employed, the engineering aspects of the control technologies, process changes, non-water quality environmental impacts (including energy requirements), and such other factors as the Administrator deems appropriate (CWA section 304(b)(1)(B), 33 U.S.C. 1314(b)(1)(B)). If, however, existing performance is uniformly inadequate, EPA may establish limitations based on higher levels of control than what is currently in place in an industrial category, based on an Agency determination that the technology is available in another category or subcategory and can be practicably applied.

2. Best Conventional Pollutant Control Technology (BCT)

BCT represents the second level of stringency for controlling discharge of conventional pollutants. In addition to other factors specified in CWA section 304(b)(4)(B) (33 U.S.C. 1314(b)(4)(B)), the CWA requires that EPA establish BCT limitations after consideration of a two-part “cost-reasonableness” test. EPA explained its methodology for the development of BCT limitations in July 1986 (51 FR 24974 (July 9, 1986)). The Act designates the following as conventional pollutants: BOD, TSS, fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional (CWA section 304(a)(4); 33 U.S.C. 1314(a)(4)). The Administrator designated oil & grease as an additional conventional pollutant (44 FR 44501 (July 30, 1979) and 40 CFR 401.16).

3. Best Available Technology Economically Achievable (BAT)

BAT represents the second level of stringency for controlling discharge of toxic and nonconventional pollutants (including nutrients). Courts have referred to this as the CWA's “gold standard” for controlling discharges from existing sources (

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1003). In general, BAT represents the best available, economically achievable performance of facilities in the industrial subcategory or category, considering the factors specified in CWA section 304(b) (33 U.S.C. 1314(b)). As the statutory phrase intends, EPA considers the technological availability and economic achievability in determining what level of control represents BAT (CWA section 301(b)(2)(A), 33 U.S.C. 1311(b)(2)(A)). The statute specifies a number of factors for consideration in establishing or revising BAT: the cost of achieving BAT effluent reductions, the age of equipment and facilities involved, the process employed, potential process changes, and non-water quality environmental impacts, including energy requirements, and such other factors as the Administrator deems appropriate (CWA Section 304(b)(2)(B), 33 U.S.C. 1314(b)(2)(B)). The Agency retains considerable discretion in assigning the weight to be accorded these factors (

Weyerhaeuser Co.

v.

Costle,

590 F.2d 1011, 1045 (D.C. Cir. 1978)). EPA usually determines economic achievability based on the effect of the cost of compliance with BAT limitations on overall industry and subcategory financial conditions (

Chem. Mfrs. Assn.

v.

EPA,

870 F.2d 177, 251-52 (5th Cir. 1988)).

BAT reflects the highest performance in the industry and may reflect a higher level of performance than is currently being achieved based on technology transferred from a different subcategory or category, bench scale or pilot plant studies, or foreign plants (

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1006;

American Paper Inst.

v.

Train,

543 F.2d 328, 353 (D.C. Cir. 1976);

American Frozen Food Inst.

v.

Train,

539 F.2d 107, 132 (D.C. Cir. 1976)). BAT may be based upon process changes or internal controls, even when these technologies are not common industry practice (

American Frozen Foods,

539 F.2d at 132, 140;

Reynolds Metals Co.

v.

EPA,

760 F.2d 549, 562 (4th Cir. 1985);

California & Hawaiian Sugar Co.

v.

EPA,

553 F.2d 280, 285-88 (2nd Cir. 1977)).

4. New Source Performance Standards (NSPS)

NSPS reflect effluent reductions that are achievable based on BADCT. Owners of new sources have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS should represent the most stringent controls attainable through the application of the BADCT for all pollutants (that is, conventional, nonconventional, and toxic pollutants). In establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements (CWA section 306(b)(1)(B), 33 U.S.C. 1316(b)(1)(B)).

5. Pretreatment Standards for Existing Sources (PSES)

CWA section 307(b) (33 U.S.C. 1317(b)), of the Act calls for EPA to issue pretreatment standards for discharges of pollutants to POTWs. PSES are designed to prevent the discharge of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. Categorical pretreatment standards are technology-based and are analogous to BPT and BAT effluent limitations guidelines, and thus, the Agency typically considers the same factors in promulgating PSES as it considers in promulgating BPT/BAT. The General Pretreatment Regulations,

which set forth the framework for the implementation of categorical pretreatment standards, are found at 40 CFR part 403. These regulations establish general pretreatment standards that apply to all non-domestic dischargers (52 FR 1586 (January 14, 1987)).

6. Pretreatment Standards for New Sources (PSNS)

CWA section 307(c) (33 U.S.C. 1317(c)) calls for EPA to promulgate PSNS. Such pretreatment standards must prevent the discharge of any pollutant into a POTW that may interfere with, pass through, or may otherwise be incompatible with the POTW. EPA promulgates PSNS based on BADCT for new sources. New indirect dischargers have the opportunity to incorporate into their facilities the best available demonstrated technologies. The Agency typically considers the same factors in promulgating PSNS as it considers in promulgating NSPS.

C. Actions Leading to Proposed Revisions to the MPP ELGs

1. National Review of Nutrient Discharges From Industrial Sources (USEPA. 2019. EPA-821-R-19-005)

EPA conducted a cross-industry review of publicly available discharge monitoring report (DMR) and toxics release inventory (TRI) data from 2015 on nutrient discharges from industrial point source categories. This review identified industries, based on their discharges of nutrients in wastewater and the potential to reduce their nutrient discharges, that may be candidates for ELG development or revision and prioritized them for further review. EPA then ranked industrial categories by the nutrient loads in their wastewater discharges, specifically looking at the median facility load and number of facilities reporting discharges. The MPP industry ranked as one of the highest in the analysis for total nitrogen and total phosphorus, leading EPA to focus on this industry (USEPA. 2019. EPA-HQ-OW-2019-0618).

To better understand the MPP industry and related nutrient sources, discharges, and treatment, EPA reviewed historical documentation supporting the development of the existing MPP ELGs, analyzed 2015 DMR and TRI data, and contacted several MPP facilities. Many MPP facilities discharging high amounts of nutrients are located in EPA Regions 4 and 5, which provided information on the development of nutrient permit limits and current practices for managing wastewater containing nutrients at MPP facilities. Many of these facilities had permits with water-quality-based ammonia limits more stringent than the existing 2004 MPP ELGs. More than half of the permits reviewed also included water quality-based limits or monitoring requirements for total Kjeldahl nitrogen (TKN), nitrate/nitrite, and/or total phosphorus, which are not regulated under the 2004 MPP ELG.

EPA found that some MPP facilities are performing better than the existing 2004 ELG for nutrient discharges (nitrogen and ammonia), as well as removing phosphorus, which is not regulated under the existing ELG. For nitrogen, the median annual average of 97 direct discharging MPP facilities was 32.8 mg/L, which is well below the 2004 ELG monthly averages of 103 mg/L for poultry and 132 mg/L for meat processors. For ammonia, the median annual average for 119 facilities was approximately 0.5 mg/L, which is far lower than the 4 mg/L required under the ELG regulations. For phosphorus, which is not regulated under the existing ELGs, the median annual average of 140 MPP facilities was less than 2 mg/L indicating that some MPP facilities are meeting water-quality based low phosphorus limits of their NPDES permits using current treatment technologies. These initial results indicated that revised ELGs may be appropriate as the industry is capable of achieving effluent limitations well below the current 2004 regulations.

2. Detailed Study of Meat and Poultry Products (USEPA. 2021. EPA-821-R-21-003)

As a result of the cross-industry review of nutrients in industrial wastewater and the further review of the MPP category, EPA began a detailed study of the MPP industry. The goals of the MPP detailed study were to gain a better understanding of the industry and evaluate whether the ELGs should be revised.

EPA began by collecting publicly available information about the MPP industry. To obtain a list of facilities that may be part of the MPP industry, EPA evaluated industry directories from the U.S. Department of Agriculture (USDA) Food Safety Inspection Service (FSIS), the U.S. Food and Drug Administration (FDA), and the National Renderers Association (NRA). To further develop this list, EPA evaluated information from POTW Annual Reports, EPA's Integrated Compliance Information System National Pollutant Discharge Elimination System (ICIS-NPDES) database, and EPA's TRI database. EPA also engaged with EPA regions, federal agencies, States, clean water organizations, industry stakeholders, environmental groups, and communities in close proximity to MPP facilities to understand different perspectives on the industry and effects of the industry on communities and to gain insights into the industry.

EPA used the publicly available information to analyze the industry. EPA found that the MPP industry discharges the highest phosphorus levels and second highest nitrogen levels of all industrial categories. EPA found the nutrient discharges are from numerous facilities across the country and that the nutrient pollutants are at concentrations that can be reduced with current wastewater treatment technology. Further, some of the studied facilities were already removing nutrients and achieving effluent concentrations well below the limitations in the existing MPP ELGs.

During the detailed study, EPA compiled a list of over 7,000 facilities from the sources listed above that potentially processed meat and poultry products and might be part of the MPP industry. Of these, EPA estimated that approximately 300 are likely direct dischargers. During the rulemaking process, EPA refined the list to 5,055 MPP facilities, of which 171 are direct dischargers. As the existing ELGs only apply to a subset of the direct dischargers, the 2004 MPP ELGs cover approximately 150 facilities. As mentioned, the wastewater from the direct dischargers has high amounts of nutrients. Around 120 of the estimated 150 direct dischargers discharge to waters listed as impaired, with much of the MPP total nitrogen and total phosphorus load discharging to waters impaired for algal growth, ammonia, nutrients, and/or oxygen depletion.

As the majority of MPP facilities are indirect dischargers, which are not currently subject to national categorical pretreatment standards, EPA also studied POTWs that receive MPP wastewater. In reviewing permits for POTWs that receive MPP wastewater, EPA found the majority do not have limits for nitrogen or phosphorus. Thus, many POTWs may not be removing much of the nutrient load discharged by MPP industrial users because many POTWs do not have tertiary treatment designed to remove nutrients. Additionally, many of the POTWs (73%) had permit violations for pollutants found in MPP wastewater (analysis included BOD, TSS, chlorides, nitrogen, phosphorus,

E. coli,

total residual chlorine (TRC), coliforms, metals, ammonia, and oil & grease). The

collected data thus indicates MPP facilities may be causing or contributing to violations of POTW permit limits (EUSEPA. 2021. PA-HQ-OW-2021-0547-0110).

National ELGs can help ensure that all people in the vicinity of industrial direct and indirect discharges receive the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work. To assess information related to environmental justice, EPA conducted screening analyses of areas with MPP facilities and found 82% of MPP facilities that directly discharge wastewater to waters of the U.S. are within one mile of census block groups with demographic or environmental characteristics of concern. This indicates that such facilities may be disproportionately impacting communities of concern and therefore revised wastewater regulations may benefit these communities.

3

3

Characteristics of concern in this analysis are defined as demographic or environmental indexes above the 80th percentile in a state based on data available in the 2020 release of EJSCREEN. Census block groups with one or more indexes above this threshold were considered communities of concern.

3. Announcement of Rule in Preliminary Effluent Guidelines Plan 15

In 2021, in the

Preliminary Effluent Guidelines Program Plan 15

(Preliminary Plan 15), EPA announced a rulemaking to revise the existing discharge standards for the MPP industry (USEPA. 2021. EPA-821-R-21-003).

4. Litigation and Consent Decree

On December 23, 2022, Plaintiffs Cape Fear River Watch, Rural Empowerment Association for Community Help, Waterkeepers Chesapeake, Waterkeeper Alliance, Humane Society of the United States, Food & Water Watch, Environment America, Comite Civico del Valle, Center for Biological Diversity, and Animal Legal Defense Fund filed a complaint alleging that EPA's failure to revise ELGs and to promulgate pretreatment standards for the MPP category constituted failures to act by statutory deadlines in violation of the CWA and Administrative Procedures Act (“APA”) (

Cape Fear River Watch et al.

v.

United States Environmental Protection Agency,

No. 1:22-cv-03809 (D. D.C)).

Although EPA was in the process of conducting the MPP rulemaking, EPA had not publicly announced any specific timeline for completion. The parties initiated settlement discussions, resulting in a proposed consent decree with deadlines for completion of the rulemaking, which EPA entered into after public notice and comment (88 FR 12930 (Mar. 1, 2023)). Under the consent decree, EPA has obligations to sign a notice of proposed rulemaking by December 13, 2023 and to sign a decision taking final action on the proposal by August 31, 2025 (Consent Decree,

Cape Fear River Watch et al.

v.

EPA,

Case No. 1:22-cv-03809-BAH (05/03/23)).

V. Meat and Poultry Products Industry Description

A. General Description of Industry

The MPP point source category includes facilities “engaged in the slaughtering, dressing and packing of meat and poultry products for human consumption and/or animal food and feeds. Meat and poultry products for human consumption include meat and poultry from cattle, hogs, sheep, chickens, turkeys, ducks and other fowl as well as sausages, luncheon meats and cured, smoked or canned or other prepared meat and poultry products from purchased carcasses and other materials. Meat and poultry products for animal food and feeds include animal oils, meat meal and facilities that render grease and tallow from animal fat, bones and meat scraps” (40 CFR 432.1).

Based on industry responses to the 2022 MPP Questionnaire, EPA estimates there are 5,055 MPP facilities currently in operation. Table V-1 shows the estimated number of MPP facilities based on facility process based on the 2022 MPP Questionnaire and other publicly available data sources. “Meat First” refers to facilities that slaughter animals excluding poultry. “Meat Further” refers to facilities that further process animal products excluding poultry. “Poultry First” refers to facilities that slaughter poultry. “Poultry Further” refers to facilities that further process poultry. Facilities that process meat and poultry were classified by the type which they process the most. “Render” refers to facilities that only process meat and poultry offcuts, trimmings, bones, dead animals, scrap materials, and other related usable by-products. For more information on how facilities were classified, see the

Meat and Poultry Products (MPP) Profile Methodology Memorandum

(USEPA. 2023. DCN MP00306).

Table V-1—Number of Facilities in MPP Industry by Process and Discharge Type

Process

Number of facilities

Direct

dischargers

Indirect

dischargers

Zero

dischargers

Total

Meat First

47

509

270

826

Meat Further

29

2,741

690

3,460

Poultry First

70

168

52

290

Poultry Further

6

169

119

294

Render

19

121

45

185

Total

171

3,708

1,176

5,055

Source: DCNMP00306.

As shown in Table V-1, there are a large number of MPP facilities in each sector. These facilities are located across the country. Although first processors/slaughterhouses tend to be larger, there is a large range in production volumes across the industry. Based on the questionnaire, 171 facilities have NPDES permits and discharge wastewater directly to waters of the U.S. An additional 3,708 facilities discharge wastewater to POTWs, and 1,176 facilities do not discharge process wastewater. MPP effluent discharges contain pollutants including nitrogen, phosphorus, ammonia, oil & grease, BOD, and chlorides.

B. Control and Treatment Technologies

EPA evaluated technologies available to control and treat wastewater

generated by the MPP industry. EPA has not identified any practical difference in types of treatment technologies between meat products and poultry products facilities. Some MPP processes result in wastewater streams with higher concentrations of pollutants, but facilities across the industry generally contain the same pollutants, including nitrogen, phosphorus, oil & grease, BOD, TSS, and chlorides.

The pollutants in MPP wastewaters are similar to those in domestic wastewater. POTWs often have similar wastewater treatment technologies as direct discharging MPP facilities. However, some indirect MPP wastewater discharges have pollutant loads that the receiving POTW cannot handle. These indirect discharges may cause passthrough or interference as those terms are defined in EPA's general pretreatment regulations at 40 CFR 403.3(k) and (p). Also, many POTWs are not equipped to effectively treat all pollutants found in MPP wastewater such as nitrogen, phosphorus, and chlorides. Thus, indirect discharging MPP facilities may need to treat their wastewater before sending it to their POTW in order to meet any local limits established by the control authority under EPA's general pretreatment regulations (40 CFR part 403).

EPA evaluated available technologies that can be used to treat or remove MPP pollutants, individually and in treatment trains. This section is split into subsections based on type of pollutant removal, including conventional pollutants, phosphorus, nitrogen, pathogens, and chlorides. As the evaluated technologies result in sludge production, technologies for solids handling are also included. Discussions on treatment trains are included within applicable sections.

1. Conventional Pollutant Removal

MPP process wastewater contains oil & grease, TSS, and BOD, which are all conventional pollutants. These pollutants can be removed with primary treatment, which removes floating and settleable solids. Typical treatment technologies include screens and DAF.

a. Screening:

Screens are generally the first treatment unit in a wastewater treatment train. Screens are inexpensive and remove large solid particles from the wastewater that may otherwise damage or interfere with downstream equipment and treatment processes. At some facilities, the materials removed by the screens may be used as raw material at rendering facilities.

b. Dissolved air flotation (DAF):

DAF is used extensively in the primary treatment of MPP wastewaters to remove suspended solids and oil & grease. In a DAF unit, air is dissolved into the wastewater, forming small bubbles. As the air bubbles float to the surface, solids attach to the air bubbles, and rise to the top of the unit forming a layer of floating pollutants. A skimmer is used to continuously remove this layer of floating solids, while a bottom sludge collector removes any solids that settle to the bottom. In some facilities, such as renderers, the removed solids can be recycled to the facility as raw materials.

c. Chemical Addition:

Polymers, flocculants, and phosphorus precipitating chemicals may be added to, or prior to, the DAF. The chemical addition increases the removal of pollutants from the wastewater. Adding chemicals to remove phosphorus can help facilities meet phosphorus effluent limits. For facilities that recycle materials from the DAF to the facility, chemicals addition may not be possible as this would contaminate the raw material.

2. Biological/Organic Pollutant Removal

BOD, nitrogen, and phosphorus are removed through biological, physical, and chemical processes. Biological processes can be used to achieve low levels of BOD and nitrogen and are commonly used at MPP facilities. Microorganisms used in biological wastewater treatment require phosphorus for cell synthesis and energy transport and typically remove 10 to 30 percent of influent phosphorus. Through biological treatment, organic compounds are broken down with bacteria into products including water, CO

2

, N

2

, and CH

4

.

a. Anaerobic biological treatment:

In anaerobic wastewater treatment, facultative and anaerobic microorganisms reduce organic matter and BOD into gaseous methane and carbon dioxide. The gases may be released into the atmosphere, captured and flared, or used as biogas. Anaerobic treatment systems have negligible energy requirements and can treat high-strength wastewaters. Anaerobic lagoons are a typical anaerobic system used at MPP facilities. Due to the detention time, these lagoons also equalize wastewater flow. The lagoons are not mixed to maintain anaerobic conditions. Anaerobic lagoons can reduce BOD by 95 percent and suspended solids by 95 percent (Johns. 1995;

4

USEPA. 1974;

5

USEPA. 1975).

6

4

Johns, M.R. 1995.

Developments in wastewater treatment in the meat processing industry: A review.

Bioresource Technology 54. EPA-HQ-OW-2002-0014-2410. DCN 300232.

5

USEPA (U.S. Environmental Protection Agency). 1974, February.

Development Document for Effluent Limitation Guidelines and New Source Performance Standards for the Red Meat Processing Segment of the Meat Product and Rendering Processing Point Source Category.

Washington, DC. DCN MP00348.

6

USEPA (U.S. Environmental Protection Agency). 1975, April.

Development Document for Effluent Limitation Guidelines and New Source Performance Standards for the Poultry Segment of the Meat Product and Rendering Processing Point Source Category.

Washington, DC. DCN MP00349.

b. Aerobic biological treatment:

In aerobic wastewater treatment, microorganisms require oxygen to degrade organic material into water, carbon dioxide, and organic compounds. Aerobic degradation is faster than anaerobic degradation. Soluble BOD reductions up to 95 percent are possible. Aerated lagoons have fixed, floating, or diffused air systems to aerate the water. Aerobic lagoons (naturally aerated systems) use algae to aerate the system through photosynthesis.

c. Anoxic biological treatment:

Anoxic wastewater treatment systems are oxygen deficient, and bacteria break down nitrogenous compounds into oxygen and nitrogen gas.

d. Activated sludge:

This system includes an aeration tank followed by a settling tank. Settled solids from the second tank are recycled back into the aeration tank. Under optimal conditions, this process can achieve 95 percent reductions in BOD, suspended solids, and reductions in ammonia nitrogen (Johns. 1995; USEPA. 1974; USEPA. 1975).

e. Sequencing batch reactor (SBR):

An SBR completes the activated sludge process in a single reactor. The system first fills with wastewater, then the reaction in which bacteria break down organic compounds in the presence of oxygen occurs for some time, then the system is given time to settle and separate the microorganisms from the treated effluent, and then the tank is discharged. SBR systems provide high removal rates of BOD and suspended solids, can be designed for nitrification, and can remove nitrogen and phosphorus. SBRs are ideal for low flow processes as they do not need to run continuously, and the systems allow for operational and loading flexibility (Glenn et al. 1990).

7

7

Glenn, S.L., R.T., Norris, Jr., and J.T. Sommerfield. 1990.

Discrete-event simulation in wastewater treatment.

Journal of Environmental Science and Health, 25 (4).

f. Multistage biological treatment for nitrogen removal:

Nitrogen removal is a

two-step process: nitrification and denitrification.

i. Nitrification is a two-step aerobic process.

First, ammonia is oxidized into nitrite by Nitrosomonas bacteria. Then, nitrite is oxidized into nitrate by Nitrobacter bacteria (Metcalf & Eddy, Inc. 1991).

8

8

Metcalf & Eddy, Inc. 1991.

Wastewater Engineering: Treatment, Disposal, and Reuse.

3rd Edition, McGraw-Hill, Inc. DCN MP00334.

ii. Denitrification:

Nitrite and nitrate are reduced by heterotrophic bacteria into nitrogen gas in anaerobic conditions. A carbon source, such as methanol, may need to be added to keep the microbes healthy.

Biological treatment systems are often used in series to achieve high rates of nitrogen removal. Wastewater flows from one system to the next, with recycle streams and returned activated sludge returning to various locations of the system. Some examples include:

i. Modified Ludzack-Ettinger (MLE):

The MLE is a two-stage system in which an anoxic stage is followed by an aerobic stage, before wastewater goes to a clarifier. Mixed liquor with high levels of nitrate is recycled from the aerobic stage back to the influent. Activated sludge from the clarifier is also recycled back to the influent. The MLE process removes most of the BOD and can achieve a nitrogen removal of 80 percent.

ii. Bardenpho:

This is a four-stage process: anoxic, aerobic, anoxic, aerobic, followed by a secondary clarifier. Mixed liquor with high levels of nitrate is recycled from the first aerobic stage back to the first anoxic stage. Activated sludge from the clarifier is recycled back to the influent. Nitrification occurs primarily in the second stage (aerobic). Denitrification occurs in the first and third stages (anoxic). The final aeration stage removes nitrogen gas from the system and increases the concentration of dissolved oxygen. The four-stage Bardenpho process achieves higher rates of nitrogen removal compared to the two-stage MLE process.

iii. Modified Bardenpho:

This is a five-stage process: anaerobic, anoxic, aerobic, anoxic, aerobic, followed by a secondary clarifier. As in the Bardenpho process, mixed liquor with high levels of nitrate is recycled from the first aerobic stage back to the first anoxic stage and activated sludge from the clarifier is recycled back to the influent. The anaerobic stage at the beginning of the system results in biological phosphorus removal. Phosphate-accumulating organisms (PAOs) are recycled from the aerobic stage in the mixed liquor to the anaerobic stage. In the following aerobic stages, PAOs uptake large amounts of phosphorus (USEPA. 2021. EPA 830-R-01-001).

iv. Other:

There are many other processes that use multiple stages of treatment to remove nitrogen. These include A2/O, step feed, University of Capetown (UCT) processes, oxidation ditches, and the Schreiber process, amongst others (USEPA. 2004. EPA-821-R-04-011).

g. Membrane bioreactor (MBR):

MBRs use membranes to separate liquids and solids. The liquid stream then passes through anoxic and aerobic zones, in similar processes to the biological treatment systems described above. As the membranes greatly reduce the suspended solids in the liquid stream, MBR removes nitrogen and phosphorus (USEPA. 2009. EPA/600/R‐09/012).

h. Enhanced Biological Phosphorus Removal:

Microorganisms used in biological wastewater treatment require phosphorus for cell synthesis and energy transport. In the treatment of typical domestic wastewater, between 10 and 30 percent of influent phosphorus is removed by microbial assimilation, followed by clarification or filtration. However, phosphorus assimilation in excess of requirements for cell maintenance and growth, known as luxury uptake, can be induced by a sequence of anaerobic and aerobic conditions (Metcalf & Eddy, Inc. 1991). As explained above, the modified Bardenpho process removes phosphorus biologically.

3. Phosphorus Removal

As mentioned in the biological/organic pollutant removal section, some phosphorus is removed in biological treatment processes. To achieve low levels of phosphorus, chemical addition and/or tertiary filters can be used.

a. Chemical addition:

Phosphorus can be removed from wastewater by precipitation using metal salts [ferric chloride, aluminum sulfate (alum)] or lime. Polymers may also be added to increase the removal efficiency. The chemicals may be added prior to or in the DAF, in primary clarifier effluent, in biological treatment processes prior to secondary clarification, or after secondary clarification. The precipitated phosphorus is removed with other biosolids (Metcalf & Eddy, Inc. 1991).

b. Tertiary Filters:

Filters following chemical phosphorus removal can be used to achieve high removal rates of phosphorus. Tertiary filtration may include sand filters, ion-exchange, membranes, and others.

4. Pathogen Removal

Disinfection destroys remaining pathogenic microorganisms and is generally required for all MPP wastewaters being discharged to surface waters. Chlorination/dechlorination, Ultra-Violet (UV), and some filters can be used to meet effluent limits for pathogens and to inactivate pathogenic microorganisms prior to discharge to surface waters.

a. Chlorination/dechlorination:

Chlorine disinfects wastewater through oxidation reactions with cellular material which results in the destruction of pathogens. Mixing and contact time in a chlorine contact chamber are critical factors to ensure proper disinfection. The chlorine compounds commonly used for wastewater disinfection are chlorine gas, calcium hypochlorite, sodium hypochlorite, and chlorine dioxide (Metcalf & Eddy, Inc. 1991). Chlorine residuals are toxic to aquatic life, so dechlorination is often necessary. Sulfur dioxide can be added, as it reacts with both free chlorine and chloramines with chloride ions, lowering chlorine residuals (USEPA, 1999. EPA 832-F-99-062).

b. Ultra-Violet (UV):

Radiation emitted from UV light is an effective bactericide and virucide and does not generate any toxic compounds. Wavelengths between 250 and 270 nm inactivates cells (USEPA, 1999. EPA 832-F-99-064). UV lamps can be submerged in the wastewater or suspended outside the wastewater.

c. Tertiary Filtration:

Filters and membranes with pore sizes smaller than pathogens can be used to remove pathogens from wastewater. Ultrafiltration, membranes, and reverse osmosis are options.

5. Chlorides Removal

Some MPP processes, including hides processing, meat and poultry koshering, and further processing techniques, such as curing, brining, and pickling, commonly produce wastewater streams with high levels of chlorides. Some facilities engage in water softening, which can also produce high chlorides wastestreams. Wastewater treatment technologies commonly found at POTWs and many MPP facilities do not remove chlorides. The optimal chlorides treatment technologies for a facility depends on wastewater strength, climate, land availability, and cost. High chloride wastestreams may be able to be separated from other wastestreams, which can reduce costs and energy required for treatment.

a. Hauling:

Facilities may choose to haul high chloride wastewater (also

called brine) offsite in tanker trucks. The wastewater may be taken to a renderer where it may be used for production purposes, transported to a facility equipped to treat and/or dispose of brine, or taken offsite for deep-well injection or other means of disposal. Hauling can be costly as compared to other options, especially for large amounts of wastewater.

b. Evaporation ponds:

Brine wastewater may be disposed into shallow ponds exposed to the sun. The water evaporates, leaving salt. The salt will need to be emptied from the ponds occasionally to allow the ponds to be reused. This technology relies on solar evaporation and is best in dry/semi-dry climates. Land space for the ponds is also necessary. Due to the potential for groundwater pollution, the ponds should be lined (Panagopoulos et al. 2019).

9

9

Panagopoulos, A., Haralambous, K.J., and Loizidou, M. 2019.

Desalination brine disposal methods and treatment technologies—A review.

Science of The Total Environment, 693.

https://doi.org/10.1016/j.scitotenv.2019.07.351

.

c. Evaporation systems/Crystallizers:

Brine water is concentrated to near saturation, which results in salt crystallization. Heat is used to evaporate the water. The systems are often costly as compared to other options and corrosion is common if proper materials of construction are not utilized (Zhang et al. 2021).

10

10

Zhang, C., Shi, Y., Shi, L., Li, H., Li, R., Hong, S., Zhuo, S., Zhang, T., Wang, P. 2021.

Designing a next generation solar crystallizer for real seawater brine treatment with zero liquid discharge.

Nature Communications, 12.

https://www.nature.com/articles/s41467-021-21124-4.

d. Deep-well injection:

Fluids such as brine/salt water can be injected underground into porous geological formations. The well is normally 500 to1500 meters deep. Constructing a well can be costly, and deep-well injection is not allowed in some parts of the U.S. (Panagopoulos et al. 2019).

6. Solids Handling

Some wastewater treatment technologies produce industrial sludge. In the MPP industry, sludge is primarily generated by the DAF and clarifiers. The sludge contains oil & grease, organic materials, nitrogen, phosphorus, and chemicals/polymers added in the treatment system. The sludge may have a high-water content, which can be reduced, to reduce volume and save hauling and landfilling costs. Common dewatering technologies include gravity thickening units and the belt filter press. The sludge may be incinerated, land applied, or landfilled, depending on State, local and federal regulations and disposal method availability.

VI. Data Collection

A. Information From the Meat and Poultry Products Industry

The Agency evaluated the following databases online to locate data and information to support regulatory development: The Agency's ICIS-NPDES database, USDA's Food Safety and Inspection Service's Hazard Analysis and Critical Control Point (HACCP) Databases, the 2020 U.S. Census of Manufactures, Dun & Bradstreet (D&B) Hoover's database, and Experian's Business TargetIQ database. In addition, the Agency conducted a thorough collection and review of secondary sources, which include data, reports, and analyses published by government agencies; reports and analyses published by the MPP industry and its associated organizations; and publicly available financial information compiled by both government and private organizations.

EPA met with or consulted the following organizations for industry information including facility names, addresses and contact information: National Cattlemen's Beef Association, National Pork Producers Council, North American Meat Institute, the North American Renderers Association, and the U.S. Poultry & Egg Association.

The documents cited above were all used by EPA in developing the industry profile, a survey sampling frame, and for stratifying the survey sampling frame. In addition to these publications, EPA examined many other documents that provided useful overviews and analysis of the MPP industry. EPA also conducted general internet searches by company name.

1. Survey

Publicly available data on MPP facilities are limited. EPA has based the population of MPP facilities on data largely from the USDA FSIS. The FSIS dataset compiles information on facility name and location, type(s) of meat and poultry processed, and limited details on size (both employees and amount processed). USDA FSIS does not report details specific to wastewater generation or wastewater treatment. EPA also included a list of renderers from the NRA, and MPP facilities in the ICIS-NPDES dataset, in developing the list of MPP facilities. These data are limited since the NPDES data generally includes only those facilities directly discharging wastewater, although some individual States require pretreatment permits to also be reported.

In order to supplement publicly available data sources, EPA conducted a survey of the MPP industry. EPA developed two questionnaires to collect site-specific technical and economic information to provide a more robust record to support developing regulatory options and conduct analyses required by statutes and executive orders. EPA's Office of Water administered a Census Questionnaire and a Detailed Questionnaire to facilities engaging in meat and poultry processing, including those currently regulated under 40 CFR part 432, and facilities that discharge wastewater directly to waters of the U.S., indirectly to POTWs, or do not discharge wastewater. The Census Questionnaire was administered as a census of the industry to confirm the industry population, as well as general information on the industry, including:

• Processing details (including type of meat or poultry and type of processing),

• Type and size (both production and employees) of the facility, and

• Wastewater generation and treatment information.

EPA used information collected through the Census Questionnaire to confirm the list of facilities that fall within the MPP industry and to identify which MPP facilities generate, treat, and/or discharge wastewater. A statistically representative subset of different types of MPP facilities were asked to complete a more detailed set of questions. This Detailed Questionnaire collected the same information as the Census Questionnaire and additional details on processing operations, types and amount of wastewater generated by operation, wastewater treatment details, and economic data. In addition, EPA collected and analyzed wastewater samples from six MPP facilities that received the Detailed Questionnaire to characterize raw waste streams, wastewater treatment systems, and treated effluent for pollutants of interest.

At the outset of EPA's development of the questionnaires, based on data primarily from USDA FSIS and ICIS-NPDES, EPA estimated the MPP industry had between 7,000 and 8,000 facilities. Because no one data source collects information from all MPP facilities, the exact number was unclear at the time the questionnaires were developed. EPA refined the list of facilities by identifying additional or duplicate facilities and working with trade associations to identify facilities that do not process meat or poultry. EPA conducted a statistical sample of facilities on the list and sent 1,565 unique facilities the Detailed Questionnaire and the other facilities were sent the Census Questionnaire. EPA stratified the list of facilities (

i.e.,

the sampling frame) into groups based

on the stage of operation (

i.e.,

slaughter, further processor, renderer), the meat type (

i.e.,

meat, poultry), and production, to increase sample precision. Each facility fell within one or more strata. EPA estimated the number of facilities to sample from each stratum based on acceptable error, confidence level, and expected response rate using Cochran's sample size formula. The target sample size was 1,633 and these 1,565 represent the 1,633 facility-strata combination as some facilities fell in multiple strata and represent multiple strata. The Detailed Questionnaire included all questions in the Census Questionnaire. Both questionnaires were issued at the same time and requested data for 2021. Data from 2021 represents the most recent year for which complete technical and economic data were available as EPA administered the survey in 2022. The Detailed Questionnaire also asked for some data from 2017 and 2019 to evaluate recent trends in industry operation and economics. EPA administered the data collection under the authority of section 308 of the Federal Water Pollution Control Act, 33 U.S.C. 1318 and in accordance with the Paperwork Reduction Act, 44 U.S.C. 3501-3521.

11

The questionnaires can be found in Docket ID Number EPA-HQ-OW-2021-0736. Additional details on the questionnaire methodology can be found in the TDD.

11

EPA ICR No. 2701.01, OMB Control No. 2040-NEW.

2. Stakeholder Meetings and Outreach

EPA encouraged the participation of all interested parties throughout the development of the MPP rule. The Agency conducted outreach to trade associations that represent the vast majority of the facilities that will be affected by the rule. EPA met with various stakeholders to discuss aspects of the regulation development. EPA also participated in industry meetings and gave presentations on the status of the regulation development. A comprehensive list and description of these meetings can be found in the TDD. EPA also met with environmental groups and Tribal communities and conducted environmental justice outreach. For details on these meetings, see the

Environmental Assessment for the Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category

(U.S. EPA, 2023. EPA 821-R-23-012).

B. Economic Data

EPA analyzed the economic impact of the proposed regulation on both discharging facilities and the firms that own them. These analyses form the basis of EPA's proposed determination that the regulation is economically achievable. EPA also analyzed larger market wide impacts on production levels, prices, and employment. EPA relied on existing sources of economic data for these analyses and to supplement facility and firm information obtained from the industry survey.

1. Facility and Firm-Level Economic Data

When questionnaire responses were available for a facility and its owner, that information was used for the impact analyses, such as the closure analyses and the cost-to-revenue screening analyses that are described in detail in section VIII. When information from the questionnaire was not available, however, EPA relied on two primary sources of external data. The first data source was the USDA FSIS facility-level information. This information was used to supplement facility production and employment estimates. The second data source was D&B Hoovers database of business information. This source was used to supplement revenue, employment, and ownership information at both the firm and facility level.

2. Industry and Sector-Level Economic Data

After estimating facility and firm level costs, EPA analyzed the potential effect on market prices for major industry commodities such as, beef, pork, broiler chickens, and turkeys. EPA also analyzed the potential for changes to national and regional production-levels for these commodities. EPA estimated changes to both short-term and long-term employment levels. Finally, EPA also estimated potential changes to the barriers-to-entry for this industry as well as industry consolidation trends.

The primary data source for the sector and industry-level analyses is USDA's Economic Research Service (ERS). The ERS analyzes trends and emerging issues in the agricultural sector and regularly publish data on farm sector performance and farm households' well-being; farm size and concentration; market analysis, data, and projections on commodity supply, demand, and prices; and Federal farm policies. EPA also used results from agricultural market studies published in peer reviewed journals.

C. Other Data Sources

EPA conducted several data collection activities in support of developing the proposed rule. EPA used these data to develop an industry profile, evaluate industry subcategorization, determine wastewater characteristics and potential pollution control technologies, review potential pollutant load reductions and costs associated with certain technology options, review environmental impacts associated with discharges from this industry, and develop pollutant limitations.

1. Site Visits

During 2022, EPA conducted site visits at nine different MPP facilities, specifically three meat facilities, five poultry facilities, and one independent rendering facility. In selecting candidates for site visits, EPA attempted to identify facilities with advanced wastewater treatment technologies across the different types of operations performed in the industry. During each visit, EPA collected information on facility process operations including recent changes and upgrades, wastewater treatment operations, water usage, and waste management operations. See the TDD for additional details on site visits.

2. Wastewater Sampling

Between August and November 2022, EPA conducted a sampling program at six MPP facilities located throughout the United States to collect wastewater characterization data and treatment performance data.

EPA selected facilities based on nitrogen and phosphorus discharge data reported in DMRs and wastewater treatment information obtained from permits, permit application data, and site visits. EPA selected three meat facilities, two poultry facilities, and one independent rendering facility with low discharges of nutrients and/or phosphorus. All selected facilities were direct discharge facilities.

During each sampling episode, EPA collected wastewater samples for five consecutive days. Sampling points varied by facility and wastewater treatment system, but in general, EPA collected the following samples at all selected facilities:

• Treatment system influent (untreated wastewater). Sample collected downstream of screening (if present) to ensure large solids were removed to facilitate sampling.

• Effluent from primary treatment (or influent to biological treatment). Primary treatment typically included a DAF unit or anaerobic basin/lagoon.

• Effluent from biological treatment (or influent to tertiary treatment). Biological treatment typically included complete nitrification/denitrification.

• Effluent from tertiary treatment (

e.g.,

filters, disinfection, and/or chlorination/dechlorination), if tertiary treatment was in place.

• Final effluent from the treatment system, if different than effluent from last level of treatment (

e.g.,

reaeration basin).

EPA also collected operations data during the sampling episode to allow for an engineering assessment of the design, operation, and performance of treatment systems at MPP facilities. Specifically, EPA collected system design information, as well as daily operations data (

e.g.,

production, wastewater flow, chemical additions, sludge generation). See the TDD and facility-specific sampling episode reports (USEPA. 2023. DCN MP00326, DCN MP00333, DCN MP00332, DCN MP00317, DCN MP00315, DCN MP00311) for details on the sampling points selected for each facility and the operational data collected.

Based on conversations with industry, most MPP facilities use drinking water sources (public water supplies or well water) for all source water. Furthermore, facilities may treat their source water with sodium hypochlorite (NaOCl) or water softeners before use as the facilities are generating food-grade products (USEPA. 2022. DCN MP00123, DCN MP00276, DCN MP00138, DCN MP00142). For these reasons and because EPA does not expect drinking water to contain nutrients or other pollutants at levels found in MPP wastewater, EPA did not collect source water samples.

EPA identified pollutants of interest in MPP wastewater based on data from the previous MPP rulemaking (USEPA, 2004) and literature searches. Below is a list of pollutant or pollutant groups chosen by EPA for the MPP sampling program.

• Biochemical oxygen demand (BOD) and carbonaceous biochemical oxygen demand (CBOD)

• Chemical Oxygen Demand (COD)

• Inorganic anions

• Oil & grease

• Nitrogen compounds

• Total and ortho-phosphorus

• TSS and TDS

• Total organic carbon (TOC)

• Bacteria (fecal coliform, Escherichia coli (E. coli)) and enterococci)

• Metals

See the

Pollutants of Concern (POC) Analysis for the Meat and Poultry Products (MPP) Proposed Rule

(USEPA. 2023. DCN MP00190), which presents a table of the pollutants by analytical method and corresponding baseline values. See the

Generic Sampling and Analysis Plan (GSAP)

(USEPA. 2023. DCN MP00136) and the facility-specific sampling and analysis plans (SAPs) (USEPA. 2023. DCN MP00149, DCN MP00137, DCN MP00150, DCN MP00151, DCN MP00152, DCN MP00153) for more information on sampling procedures. EPA has included in the MPP Rulemaking Record all information collected for which each facility has not asserted a claim of CBI or which would indirectly reveal information claimed to be CBI.

VII. Proposed Regulation

A. Description of the Options

As previously described, EPA's 2019 cross-cutting review of nutrient discharges from 59 industrial categories found that the MPP point source category discharged some of the highest nitrogen and phosphorus levels of all industries. OW initiated a detailed study in 2020 and announced a rulemaking to revise the ELGs in EPA's Preliminary Plan 15 based on information suggesting facilities can do more to control nutrients and other pollutants and that revisions could reduce discharges affecting underserved and overburdened communities (USEPA. 2021. EPA-821-R-21-003). EPA identified technologies currently in use by MPP facilities that can further reduce nitrogen discharges below the levels that are found in the existing ELGs, which were last revised in 2004. In addition, MPP facilities are currently using technologies to remove phosphorus, which is not regulated under the existing MPP ELGs. This proposal evaluates three regulatory options as shown in Table VII-2 of this preamble. While developing these regulatory options, EPA's goal was to reduce pollutant discharges to surface waters, reduce and/or eliminate interference and passthrough at POTWs receiving MPP wastewater, and establish effluent limits and pretreatment standards based on technologies that are available and economically achievable for the industry, while minimizing impacts to small business.

EPA considered and continues to consider ways to minimize impacts to small business when developing the regulatory options consistent with the statutory factors. As described in Section V, EPA identified 5,055 MPP facilities generating process wastewater, and 3,879 of these facilities discharge to waters of the U.S. directly or indirectly. EPA carefully considered impacts of new or revised effluent limitations and pretreatment standards on small business by using facility production thresholds to distinguish smaller facilities with lower revenues from larger facilities. In developing the options, EPA evaluated differing thresholds for applicability of the proposed rule provisions to evaluate how impacts to small business would vary as more and smaller facilities would be subject to new and/or more stringent effluent limitations and pretreatment standards. The record supports that the impacts to small business from the preferred option (Option 1) would not be significant (see Section XVI.C). Under Option 1, most MPP facilities (79 percent) fall below the proposed production thresholds, and therefore, would have no new limitations. The proposed new limitations under Option 1 would impact 844 facilities, representing 21 percent of the total number of MPP facilities discharging to waters of the U.S. and to POTWs.

Under the most expansive option proposed (Option 3), new limitations would impact 1,618 facilities of the 3,879, or 42 percent of facilities discharging to waters of the U.S. and to POTWs. EPA also considered minimizing impacts to small businesses by basing effluent limitations on lower cost wastewater treatment technologies for facilities with lower production. For example, in Option 3, indirect discharging facilities producing below 5 million pounds per year would have no new requirements and indirect discharging facilities producing between 5 and 30 million pounds per year would have effluent limitations based on lower cost pretreatment technologies consisting of screening and DAF to control conventional pollutants only. Facilities producing 30 million pounds per year or greater would have additional requirements that include both conventional pollutant removal and nitrogen and phosphorus removal, and this would impact only 21 percent of indirect discharging facilities.

Table VII-1 shows the total number of MPP facilities that have discharges followed by the number of facilities that EPA estimates would incur costs to comply with the requirements of the various regulatory options. All options build on the existing MPP ELGs and are based on three technologies: conventional pollutant (

e.g.,

BOD, TSS, Oil & Grease) removal by screening and DAF, phosphorus removal by chemical precipitation, and nitrogen removal by biological treatment to achieve full denitrification. Each option

incrementally increases the subcategories and/or number of facilities to which the effluent limitations and pretreatment standards would apply. Nitrogen and phosphorus are two primary pollutants to be reduced with these regulatory options and the processes involved in removal are briefly described next.

Table VII-1—Number of MPP Facilities—Total Discharging Facilities and Number That Would Incur Costs Under the Requirements of the Regulatory Options

Regulatory option

Discharge type

Total #

dischargers

Total # facilities

incurring costs

under ELG

Option 1

Directs

171

126

Indirects

3,708

719

Total

3,879

845

Option 2

Directs

171

126

Indirects

3,708

719

Total

3,879

845

Option 3

Directs

171

135

Indirects

3,708

1485

Total

3,879

1,620

Nitrogen removal is carried out through a three-step biological process: (1) The conversion of ammonia from organic nitrogen by hydrolysis and microbial activities, called ammonification; (2) the aerobic conversion of ammonia to nitrate by reacting the ammonia with oxygen in a process called nitrification; and (3) the conversion of nitrate to nitrogen gas by reacting the nitrate with organic carbon under anoxic conditions in a process called denitrification. Phosphorus can be removed from wastewater by biological uptake by microorganisms and by chemical precipitation with a metal cation. Depending on the target concentration, a plant process might employ both technologies. Such a combined approach might be of particular benefit if the target concentration is very low and the starting concentration is high. In such a case, biological removal is used to remove the bulk of the phosphorus, and chemical polishing follows to achieve the final concentration; such an approach tends to reduce sludge formation from denitrification (USEPA. 2008. EPA 832-R-08-006).

For direct dischargers, all proposed options would establish revised effluent limitations that build upon the wastewater treatment systems that are the basis of the existing MPP ELGs. The ELGs that currently apply to these facilities are based on screens, DAF, anaerobic lagoons, biological treatment to achieve nitrification and partial denitrification, and chlorination/dechlorination. The effluent limitations for direct dischargers in today's proposal are based on more complete denitrification. Therefore, large facilities that already have denitrification technology for nitrogen removal would likely need to add more complete denitrification and chemical phosphorus removal technologies to comply with the proposed effluent limitations for total nitrogen and phosphorus. Smaller facilities could be subject to nutrient limits under the lower production thresholds in Option 3 and would presumably need to install this technology for the first time, since these facilities are currently below the applicability threshold for the existing ELG.

Since there are no national pretreatment standards applicable to the MPP category, indirect discharging facilities are currently only subject to any local limits established by the control authority under the general pretreatment regulations at 40 CFR part 403. Wastewater treatment in place at indirect discharging facilities therefore ranges from no treatment to some treatment. Treatment ranges from basic treatment, such as screens and oil water separators, or more complex treatment such as DAF, anaerobic lagoons, biological treatment to achieve nitrification and denitrification, and phosphorus removal. To meet the proposed conventional pollutant pretreatment standards under the preferred Option 1, which is based on screens and DAF technology, existing indirect discharging facilities with no treatment in place now would likely need to install similar technologies. To meet the nitrogen and phosphorus pretreatment standards contained in Options 2 and 3, many indirect dischargers would likely need to add additional treatment such as anaerobic lagoons, biological treatment to achieve nitrification and full denitrification, and chemical phosphorus removal technologies. However, as described later in this preamble, EPA is proposing to include “conditional limits” under Options 2 and 3 which would allow an exemption from nutrient pretreatment standards for indirect dischargers that are discharging to POTWs that have nutrient removal capabilities that result in equivalent nutrient removal.

Option 1 is EPA's preferred option and builds on the existing MPP ELGs by adding new effluent limitations for large direct and indirect dischargers. Option 1 would include new phosphorus limits for large direct dischargers based on chemical phosphorus removal technology, more stringent nitrogen limits for large direct dischargers based on full (not partial) denitrification, and new conventional pollution limits (pretreatment standards) for large indirect dischargers based on very basic wastewater treatment such as screening and DAF technologies to prevent passthrough and interference at POTWs. EPA requests comment on the concept of allowing POTWs, control authorities, or permit authorities to waive, under certain circumstances, the new conventional pollutant limits for large indirect dischargers. Although EPA is unclear how this would work in practice, it is possible that POTWs not experiencing passthrough and interference may be able to waive these pretreatment standards while continuing to prevent passthrough and interference. Additionally, POTWs that perform denitrification may want to waive BOD limits for their MPP industrial users so they can receive more carbon to support bacterial conversion of nitrates to nitrogen gas. EPA requests comment both on whether

such waivers should be allowed, and the demonstration necessary to justify such waivers.

Large refers to the existing rule production thresholds of greater than 50 million pounds per year of finished product produced for meat further processors (Subcategories F-I) and in terms of LWK for meat slaughtering (Subcategories A-D). For poultry slaughtering (Subcategory K) large also refers to existing rule production thresholds of greater than 100 million pounds per year of LWK, greater than 7 million pounds per year of finished product produced for poultry further processors (Subcategory L), and 10 million pounds per year of raw material processed for renderers (Subcategory J).

Option 2 builds on (includes all requirements in) Option 1 and would add nitrogen and phosphorus pretreatment standards for some large indirect discharging slaughterhouses and renderers. Specifically, Option 2 would add phosphorus and nitrogen limits for indirect discharging slaughterhouses producing greater than or equal to 200 million pounds per year and indirect discharging renderers producing greater than or equal to 350 million pounds per year.

Option 3 extends the requirements for both direct and indirect discharging facilities under Options 1 and 2 to smaller facilities. For direct discharging facilities, Option 3 would apply phosphorus and nitrogen limits to all subcategories producing greater than or equal to 10 million pounds per year, and additional more stringent nitrogen limits in all subcategories producing greater than or equal to 20 million pounds per year. For all indirect discharging facilities, Option 3 would require conventional pollutant limits for facilities producing greater than 5 million pounds per year, and nitrogen and phosphorus limits for facilities producing greater than 30 million pounds per year.

Additionally, all options would include stricter fecal coliform limits for direct discharging facilities, based on chlorination/dechlorination and UV disinfection (which is the same technology basis for the existing limitations for fecal coliform).

In addition to the options described above, EPA solicits comment on including three additional requirements in any final rule. First, limitations on the discharge of chlorides by establishing a zero discharge of pollutants requirement for certain high chlorides wastestreams. The technology basis for this requirement is segregation of these wastestreams from other process wastewater streams and management via sidestream evaporation. EPA solicits comment on including this provision for all facilities (both direct and indirect) producing more than 5 million pounds per year with high chlorides processes. Second, EPA solicits comment on conditional limitations for phosphorus and nitrogen discharges from indirect dischargers under Options 2 and 3. Third, EPA solicits comment on limitations on

E. coli

for direct discharging facilities.

B. Proposed Changes to Subcategories

As described above, EPA proposes to revise ELGs for facilities in the following MPP subcategories: Simple Slaughterhouses (Subcategory A), Complex Slaughterhouses (Subcategory B), Low-Processing Packinghouses (Subcategory C), and High-Processing Packinghouses (Subcategory D). Although the proposed options may establish differing production thresholds for applicability under these subcategories, EPA proposes to leave the definitions of these subcategories unchanged because the definitions are not based on production thresholds and effluent limitations in the proposed regulatory options would apply to a subset of these subcategories as they are currently defined.

The Agency is not proposing revised ELGs for the small processor category (Subcategory E). Subcategory E is defined based on a size threshold of no more than 6,000 pounds per day (2.19M pounds per year) of any type or combination of finished product. EPA also proposes to leave applicability definitions for Subcategory E unchanged.

EPA is proposing revised limitations and new pretreatment standards for facilities in the following MPP subcategories: Meat Cutters (Subcategory F), Sausage and Luncheon Meats Processors (Subcategory G), Ham Processors (Subcategory H), and Canned Meats Processors (Subcategory I). Subcategories F-I are currently defined based on a production rate greater than 6,000 pounds per day (2.19 million pounds per year), and EPA proposes to leave the definitions for these subcategories unchanged. However, EPA proposes to apply effluent limitations to a subset of these subcategories based on production thresholds, which could change under the proposed regulatory options.

EPA is also proposing retaining the Renderer (Subcategory J) subcategory and revising the limitations and proposing new pretreatment standards for facilities in this subcategory. EPA proposes to leave the applicability definitions for Renderers (Subcategory J) unchanged as facilities using raw material at rates greater than 10 million pounds per year. However, EPA proposes to apply effluent limitations to a subset of these subcategories based on production thresholds, which could change under the proposed regulatory options.

EPA is proposing establishing revised limitations and new pretreatment standards for facilities in the poultry subcategories. The poultry subcategories (Subcategory K, Poultry First Processing and Subcategory L, Poultry Further Processing) are not defined based on production and EPA proposes to leave the applicability definitions unchanged. However, EPA proposes to apply effluent limitations to a subset of these subcategories based on production thresholds, which could change under the proposed regulatory options.

In summary, EPA is retaining the existing subcategories and proposing revisions to applicable effluent limitations and addition of new pretreatment standards for most of these subcategories. The proposed ELGs apply to subsets of facilities in each subcategory based on production thresholds. In establishing the original ELGs for this industry and in the 2004 revisions, EPA broke the industry down into subcategories with similar characteristics. This breakdown recognized the major differences among companies within the industry, which might reflect, for example, different processes or economies of scale. Subdividing an industry into subcategories results in more tailored regulatory standards, thereby increasing regulatory predictability and diminishing the need to address variations among facilities through a variance process (

Weyerhaeuser Co.

v.

Costle,

590 F. 2d 1011, 1053 (D.C. Cir. 1978)). EPA proposes to retain the subcategories in the rule as they reflect differences in processes and wastewater strength and composition and EPA has not identified any additional processes or changes in processes since the 2004 rulemaking that would warrant revision of the existing subcategories or consideration of any additional subcategories.

In addition to some specific requests for comment included throughout this proposal, EPA solicits comment on all aspects of this proposal, including the information, data, and assumptions EPA relied upon to develop the three regulatory options, as well as the proposed effluent limitations and pretreatment standards for existing and new facilities, and additional provisions (see Section F below) included in this proposal.

Table VII-2—Summary of Regulatory Options

Direct dischargers

Technology basis

Applicable facilities

Indirect dischargers

Technology basis

Applicable facilities

Option 1

Adds to existing ELG: full denitrification, chemical phosphorus removal, filter

>50 million lbs/yr of finished product produced for meat further processors, >50 million lbs/yr LWK for meat slaughtering, >100 million lbs/yr of LWK for poultry slaughtering, >7 million lbs/yr of finished product produced for poultry further processors, >10 million lbs/yr of raw material processed for renderers

Conventional pollution limits based on screening/grit removal, DAF, and dewatering/solids handling

>50 million lbs/yr of finished product produced for meat further processors, >50 million lbs/yr LWK for meat slaughtering, >100 million lbs/yr of LWK for poultry slaughtering, >7 million lbs/yr of finished product produced for poultry further processors, >10 million lbs/yr of raw material processed for renderers.

Option 2

Same technology as Option 1

Same facilities as Option 1

Same technologies as Option 1 plus anaerobic lagoon (BOD pretreatment), activated sludge (nitrification and full denitrification), chemical P removal, filter

Option 1 facilities plus slaughterhouses producing ≥200 million lbs/yr and renderers processing ≥350 million lbs/yr raw material.

Option 3

Same technology as Option 1

Phosphorus and nitrogen limits for all direct discharging facilities producing ≥ 10 million lbs/yr, and more stringent nitrogen limits to all facilities producing ≥20 million lbs/yr

Same technology as Option 2

Conventional limits for facilities producing >5 million lbs/yr plus nitrogen and phosphorus limits for all facilities >30 million lbs/yr.

C. Rationale for the Preferred Option (Option 1)

Considering the statutory criteria and factors described in Section IV above, EPA proposes to revise the ELGs based on BPT, BCT, BAT, PSES, PSNS, and BADCT (for NSPS) based on the technologies described in its preferred Option 1. EPA also solicits comment on the other proposed options (Options 2 and 3), and any other permutation of these options, although they are not the preferred option in this proposed rule for the reasons discussed in section VII. E below.

As described in section IV, the CWA defines two increasingly stringent levels of control to be used for developing limits for classes of pollutants and specifies factors that need to be considered. BPT is the first level of control and applies to all pollutants

(Southwestern Electric Power Co.

v.

EPA,

920 F.3d 999, 1006 (5th Cir. 2019)). BPT limits are set based on the facilities representing “the average of the best” wastewater treatment in use by the industry. Statutory factors include consideration of total cost in relation to benefits; costs cannot be “wholly disproportionate” to benefits (

Chem. Mfrs. Assn.

v.

EPA,

870 F.2d 177, 205 (5th Cir. 1989)).

BAT represents the second level of control for toxic and non-conventional pollutants such as nitrogen and phosphorus. In setting BAT, EPA uses not the “average” plant, but rather the “single best performing plant” in the industry (

Chem. Mfrs. Assn.

v.

EPA,

870 F. 2d at 226 (5th Cir. 1989)). Unlike BPT, the BAT factors omit a cost-benefit analysis, and replace it with a requirement to consider only the “cost of achieving such effluent reduction” (

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1006 (5th Cir. 2019)). The CWA requires that BAT be “economically achievable,” which has been interpreted to mean that the costs of controls can be “reasonably borne” by the industry (

Chem. Mfrs. Ass'n,

870 F.2d at 262 (5th Cir. 1989);

BP Exploration & Oil,

66 F.3d 784, 799-800 (6th Cir. 1996)). BCT represents the second level of control for conventional pollutants such as oil & grease, BOD, TSS, fecal coliform, and pH. Statutory factors for BCT include a cost-reasonableness test.

Under the preferred Option 1, for direct dischargers, EPA proposes to revise BPT/BAT for nitrogen and phosphorus and BPT/BCT for fecal coliform. For indirect dischargers, EPA proposes to establish PSES and PSNS based on BPT/BCT for TSS, BOD, and oil & grease.

1. Direct Discharging Facilities (BAT)

For direct dischargers, EPA proposes BAT effluent limitations for nitrogen based on biological treatment to achieve full denitrification and BAT effluent limitations for phosphorus based on biological treatment with chemical precipitation with filtration. After considering the factors specified in CWA section 304(b)(2)(B) (33 U.S.C. 1314(b)(2)(B)), EPA proposes to find that this technology is technologically available, economically achievable, and has acceptable non-water quality environmental impacts.

(a) Availability of Nitrogen and Phosphorus Removal Technologies

“In setting BAT, EPA uses not the average plant, but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible” (

Kennecott

v.

EPA,

780 F.2d 445, 448 (4th Cir. 1985), citing

A Legislative History of the Water Pollution Control Act Amendments of 1972,

93d Cong., 1st Sess. (Comm. Print 1973), at 798)). BAT is supposed to reflect the highest performance in the industry and may reflect a higher level of performance than is currently being achieved based on technology transferred from a different subcategory or category, bench scale or pilot plant studies, or foreign plants (

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1006;

Am. Paper Inst.

v.

Train,

543 F.2d 328, 353 (D.C. Cir. 1976);

Am. Frozen Food Inst.

v.

Train,

539 F.2d 107, 132 (D.C. Cir. 1976)). BAT may be based upon process changes or internal controls, even when these technologies are not common industry practice (

Am. Frozen Foods,

539 F.2d at 132, 140;

Reynolds Metals Co.

v.

EPA,

760 F.2d

549, 562 (4th Cir. 1985);

California & Hawaiian Sugar Co.

v.

EPA,

553 F.2d 280, 285-88 (2nd Cir. 1977)). As recently reiterated by the U.S. Court of Appeals for the Fifth Circuit, “Under our precedent, a technological process can be deemed available for BAT purposes even if it is not in use at all, or if it is used in unrelated industries. Such an outcome is consistent with Congress'[s] intent to push pollution control technology” (

Southwestern Elec. Power Co.

v.

EPA,

920 F.3d at 1031, citation and internal quotations omitted). The technology bases for BAT are currently in use by MPP facilities across the sector. EPA has identified 14 facilities using enhanced nitrogen removal technologies and 22 using phosphorus removal technologies in both meat and poultry processing and rendering. These technologies are also widely used in municipal wastewater treatment in the U.S. and around the world. Accordingly, EPA proposes to find that such technologies are “available” within the meaning of the statute.

(b) Economic Achievability of Nitrogen and Phosphorus Removal

EPA proposes to find that the proposed BAT effluent limitations for total nitrogen and total phosphorus under the preferred Option 1 are economically achievable. Courts have interpreted economic achievability to mean that the cost of the regulations can be “reasonably borne” by the industry as a whole (

Chem. Mfrs. Ass'n

v.

EPA,

870 F.2d 177, 262 (5th Cir. 1989);

BP Exploration & Oil

v.

EPA,

66 F.3d 784, 799-800 (6th Cir. 1996);

see also Nat'l Wildlife Fed'n

v.

EPA,

286 F.3d 554, 570 (D.C. Cir. 2002);

CPC Int'l Inc.

v.

Train,

540 F.2d 1329, 1341-42 (8th Cir. 1976),

cert. denied,

430 U.S. 966 (1977)). `Congress clearly understood that achieving the CWA's goal of eliminating all discharges would cause “some disruption in our economy,” including plant closures and job losses' (

Chem. Mfrs. Ass'n

v.

EPA,

870 F.2d at 252, citations omitted;

see also id.

at 252 n.337, reviewing cases in which courts have upheld EPA's regulations that projected up to 50 percent closure rates).

EPA assesses economic achievability using two primary approaches. The main approach is to use a discounted cash flow analysis to predict the number of possible closures resulting from implementation of the regulatory option. The closure analysis compares the future costs of compliance to the facility's estimated future earnings during the same period. For this analysis, EPA is considering a facility that shows positive future earnings without the rule and negative future earnings with the rule (regardless of magnitude of the earnings) to be a potential closure. EPA often also uses a simple financial screening analysis to compare facility compliance cost-to-revenue (CTR), in order to assess the relative magnitude of the economic impacts to each facility. The higher the ratio of cost to revenue, the greater the potential impact on the facility. Facilities experiencing significant economic impacts may, among other possibilities, reduce production levels, make changes to production and facility operations, forgo future expansion, or close. A cost-to-revenue analysis does not predict these responses but is a reasonable way to assess the likelihood of these types of impacts. On the other hand, some indirect facilities, depending on how their utility fees are structured, may incur lower payments to the receiving POTW due to lower pollutant loads being sent to the POTW.

EPA proposes to find that the preferred Option 1 is economically achievable in terms of affordability to the industry as a whole because results from both the BAT analysis of potential closures and the BAT CTR analysis show that potential closures and financial impacts are limited to a single facility that accounts for approximately one percent of discharging facilities and less than one percent (0.02 percent) of the total universe of MPP facilities. See Section VIII and the Cost and Economic Impact Screening Analyses and the Facility Closure Analysis sections of the RIA for more detailed results. Additionally, EPA also performed a market analysis that estimates the proposed Option 1 would change market prices for major meat and poultry commodities by less than a tenth of a percent. See the Market Impact Analysis section of the RIA for more detailed results.

The annualized social cost of the preferred option is $232 million and $227 million using a three percent and seven percent discount rate respectively. The total cost of a rulemaking does not in and of itself inform the Agency about its impact to the industry as a whole without understanding the economic conditions of that industry. For example, an industry with total annual sales of only $20 to $30 billion might experience disruptions due to annual costs of this magnitude. However, the MPP industry, as classified under NAICS 3116, is a relatively large industry. The American Survey of Manufacturers estimates that total sales for the industry in 2021 were $267 billion.

12

Given the size of the MPP industry, EPA does not consider the total annual cost of the preferred Option 1 to be a determinative factor with respect to economic achievability.

12

U.S. Census Bureau. (2022). 2021 Annual Survey of Manufacturers: Summary Statistics for Industry Groups and Industries in the U.S.: 2018-2021.

(c) Non-Water Quality Environmental Impacts of Nitrogen and Phosphorus Removal

EPA proposes to find that the non-water quality environmental impacts of the preferred Option 1 (full denitrification, chemical phosphorus removal, and filtering) are acceptable. For further discussion of these impacts, see Section X.

EPA's preferred Option 1 for direct dischargers, which EPA estimates would require 125 of 171 total direct dischargers to install additional wastewater controls, would add an estimated additional 78,989 MWh of demand to the U.S. power grid. This would increase the total power demand of the U.S. by 0.0000019 percent, based on the U.S. generating 4,108 billion MWh in 2021 nationwide (EIA, 2021).

13

Preferred Option 1 for direct dischargers is also estimated to increase the US CO

2

emissions by 34,898 tons per year, or an 0.00058 percent increase of the nationwide total (

Climate Change Indicators: U.S. Greenhouse Gas Emissions.

USEPA. 2023).

14

In 2020, U.S. CO

2

greenhouse gas emissions totaled 5,981 million metric tons of CO

2

equivalents. EPA also estimates that an additional 286,685 tons of sludge will be generated under preferred Option 1. EPA proposes to find that the additional energy requirements, greenhouse gas emissions and sludge production are acceptable under the Act.

13

U.S. Energy Information Administration. 2021.

Electric Power Annual Report. www.eia.gov/electricity/annual

.

14

https://www.epa.gov/climate-indicators/climate-change-indicators-us-greenhouse-gas-emissions

.

2. Indirect Discharging Facilities (PSES/PSNS)

To control pollutants discharged by indirect discharging facilities, EPA establishes categorical pretreatment standards for existing sources (PSES) and for new sources (PSNS). Before establishing PSES/PSNS for a pollutant, EPA examines whether the pollutant “passes through” a POTW or interferes with the POTW operation or sludge disposal practices. In determining whether a pollutant passes through POTWs for these purposes, EPA typically compares the percentage of a pollutant removed by well-operated

POTWs performing secondary treatment to the percentage removed by direct dischargers operating the BPT/BAT technology basis. A pollutant is determined to pass through POTWs when the average percentage removed nationwide by well-operated POTWs performing secondary treatment is less than the average percentage removed by direct dischargers operating the BPT/BAT technology basis. EPA establishes pretreatment standards for those pollutants regulated under BPT/BAT that pass through POTWs. In this way, the standards for indirect dischargers are equivalent to direct dischargers in that the treatment capability and performance of POTWs is recognized and taken into account in regulating the pollutants from indirect dischargers.

The

Meat and Poultry Products POTW Passthrough Analysis

(the Passthrough Analysis) indicates that oil & grease, BOD, TSS, TN and TP pass through POTWs (USEPA. 2023. DCN MP00309). EPA did not conduct its traditional passthrough analysis for the management of high chloride wastestreams that are being included for consideration as an additional regulated waste stream under all the proposed regulatory options. Rather, for chlorides, because the BAT technology for the proposed zero-discharge limitations and standards would achieve 100 percent removal of chlorides, and POTWs do not remove chlorides, the record supports a finding of passthrough absent this analysis.

(a) BAT Rationale for PSES/PSNS for Nutrients

After considering all the relevant statutory factors and wastewater technologies presented in this preamble and the TDD, EPA is not proposing to establish pretreatment standards (PSES/PSNS) for nitrogen and phosphorus removal for indirect dischargers under its preferred Option 1 for the reasons discussed in Section VII.E below. However, EPA is soliciting comment on the other proposed regulatory options (Options 2 and 3) and any other regulatory options that would include such pretreatment standards for nutrients (See Section VII.D below).

(b) BPT/BCT Rationale for PSES/PSNS for Conventional Pollutants

Under preferred Option 1, EPA proposes to establish PSES based on the BPT level of control for conventional pollutants (BOD, TSS, oil & grease) based on screening and DAF technologies. After considering all the relevant factors and wastewater technologies presented in this preamble and in the TDD, EPA proposes to find that this technology is available, imposes costs that are not wholly disproportionate to effluent reduction benefits, and has acceptable non-water quality environmental impacts.

(c) Technological Availability

Courts have interpreted BPT to represent the “average of the best” performance (

EPA

v.

National Crushed Stone Assn.,

449 U.S. 64, 76 (1977).

See also, Kennecott Copper

v.

EPA,

612 F.2d 1232, 1238 (10th Cir. 1979);

Weyerhaeuser Co.

v.

Costle,

590 F.2d 1011, 1059, 1062 (D.C. Cir. 1978);

American Petroleum Institute

v.

EPA,

540 F.2d 1023, 1034 (10th Cir. 1976);

American Frozen Food Institute

v.

Train,

539 F.2d 107, 117, 119 (D.C. Cir.1976);

American Meat Inst.

v.

EPA,

526 F.2d 442, 462 (7th Cir. 1975); cert. denied, 430 U.S. 922 (1977);

Tanners' Council of America, Inc.

v.

Train,

540 F.2d 1188, 1191 (4th Cir.1976)). The technologies forming the bases for the proposed BPT revisions represent the average of the best performance as they are in use by MPP facilities across the subcategories. EPA has identified 21 indirect discharging facilities using screening and DAF technologies in both meat and poultry processing and rendering. In addition, these technologies are widely used at direct discharging facilities. Most facilities use some type of oil & grease removal technology, and DAF is the most commonly used by MPP facilities. Furthermore, these technologies are widely used by a variety of industrial classes and in municipal wastewater treatment for the control of conventional pollutants. See the TDD for additional discussion of DAF. DAF technologies have a small footprint, and EPA has no data indicating that the facilities that would be subject to pretreatment standards for conventional pollutants under the preferred Option 1 would not be able to implement DAF technologies at existing and new facilities.

(d) Costs of Conventional Pollutants Removal (BPT/BCT)

Caselaw and the CWA's legislative history indicate that to revise BPT, EPA is to employ a limited cost-benefit balancing test, applying controls unless the costs are wholly disproportionate to the effluent reduction benefits (

Chem. Mfrs. Ass'n

v.

EPA,

870 F.2d 177, 204, 205 (5th Cir. 1989);

Kennecott Copper

v.

EPA,

612 F.2d 1232, 1238 (10th Cir. 1979);

American Meat Inst.

v.

EPA,

526 F.2d 442, 453 (7th Cir. 1975); cert. denied, 430 U.S. 922 (1977);

America Frozen Food

v.

Train,

539 F.2d 107, 117, 119 (D.C. Cir. 1976).

See also, A Legislative History of the Water Pollution Control Act Amendments of 1972,

93d Cong. 1st Sess. at 169-170 (Comm. Print 1973)). EPA's analysis shows that the effluent reduction benefits are not wholly disproportionate to the costs of conventional pollutant removal technologies under the preferred Option 1 (see Section VIII.A for additional details). The costs are $32.84 million, and the effluent reduction is 234 million pounds per year of pollutants removed. Additionally, upgrading from the candidate BPT to BCT candidate technology (which is screening/grit removal, DAF, anaerobic lagoon, and biological treatment) did not pass the BCT cost test, and thus, EPA is proposing to set BCT as equal to BPT (see Section VIII B.).

(e) Non-Water-Quality Environmental Impacts (BPT/BCT)

The record supports that removal of conventional pollutants under the preferred Option 1 would have acceptable non-water quality environmental impacts, including energy requirements (see Section X of this preamble).

EPA's preferred Option 1 includes removal of the conventional pollutants BOD, oil & grease, and TSS from the meat and poultry facility's discharge before sending it to the POTW for further treatment. Under Option 1, 719 out of 3,708 indirect discharging facilities would incur an estimated 1,699 MWh of energy demand. Although most of this energy demand would be a shift from the POTW to the MPP facility, some portion of this could result in an additional energy demand to the U.S. power grid. This total power demand under preferred Option 1 is 0.000000041 percent of the U.S. power generation (based on 4,108 billion MWh in 2021 nationwide), which EPA proposes to find is acceptable (EIA, 2021).

15

EPA also proposes to find that the additional GHG increases would be acceptable. Preferred Option 1 for indirect dischargers is estimated to increase the U.S. CO

2

emissions by 753 tons per year, or an 0.000013 percent increase of the nationwide total (based on U.S. CO

2

greenhouse gas emissions of 5,981 million metric tons of CO

2

equivalents in 2020) (

Climate Change Indicators: U.S. Greenhouse Gas Emissions.

USEPA. 2023). Similarly preferred Option 1 for indirect dischargers would increase the sludge production by an estimated 11,961 tons of sludge per year, across 719 indirectly

discharging facilities, which EPA also proposes to find to be acceptable.

15

U.S. Energy Information Administration. 2021.

Electric Power Annual Report. www.eia.gov/electricity/annual

.

D. Rationale for Other Regulatory Options Proposed (Options 2 and 3)

EPA also evaluated the applicability of the statutory factors with respect to the other regulatory options proposed (Options 2 and 3), although EPA is not proposing these as the preferred option for the reasons discussed in Section VII.E below. With respect to technological availability, the technologies assessed for Options 2 and 3 are widely used in municipal wastewater treatment in the U.S. and around the world. The record supports that such technologies are available in that they effectively remove the pollutants addressed in this rulemaking. However, there may be constraints on availability of nutrient removal technologies with respect to indirect dischargers (as discussed in Section VII.E below), and EPA solicits information about such potential constraints. With respect to the statutory cost tests for BPT, BCT and BAT for Options 2 and 3, see Section VIII below. EPA's comparison of costs to benefits of the proposed BPT/BCT limitations under those options would historically support a finding that the costs are not “wholly disproportionate” to the benefits. Similarly, the possible facility closures and cost to revenue ratio of the proposed BAT limitations are within the range of impacts that EPA has historically considered to be economically achievable, as required by CWA section 301(b)(2)(A) (33 U.S.C. 1311(b)(2)(A)). EPA reasonably considered impacts on small businesses in setting production thresholds for applicability based on avoiding cost to revenue ratios indicating likelihood of economic impacts, as identified in the Regulatory Flexibility Analysis guidance (CWA section 304(b)(2)(B), authorizing consideration of “such other factors as the Administrator deems appropriate” in establishing BAT). With respect to non-water quality environmental impacts of the BPT/BCT and BAT technologies under Options 2 and 3, see Section X below. EPA solicits comment on whether these proposed options—or other regulatory options based on different production thresholds or technologies—would meet the applicable statutory factors and should form the basis of any final rule.

E. Rationale for Rejecting Options 2 and 3 as the Preferred Option

As discussed above, EPA considered two proposed options (Options 2 and 3) that would be more expansive than Option 1. EPA did not select these as the preferred option due to several potential concerns. First, EPA is concerned that the more expansive options may impede the Biden Administration's initiatives to expand independent meat and poultry processing capacity and enhance the resilience of the food supply chain, as reflected in Executive Order (E.O.) 14036 (July 9, 2021). This is a crucial Administration priority to protect against the type of supply chain disruptions that arose during the COVID-19 pandemic. In issuing the E.O., the Administration explained that without such diversification, “our food supply chains are susceptible to shocks,” and that “[w]hen COVID-19 or other disasters such as fires or cyberattacks shutter a plant, many ranchers have no other place to take their animals” See

Fact Sheet: The Biden-Harris Action Plan for a Fairer, More Competitive, and More Resilient Meat and Poultry Supply Chain

(The White House. 2022) (noting that “our overreliance on just a handful of giant processors leaves us all vulnerable, with any disruptions at these bottlenecks rippling throughout our food system.”).

16

16

https://www.whitehouse.gov/briefing-room/statements-releases/2022/01/03/fact-sheet-the-biden-harris-action-plan-for-a-fairer-more-competitive-and-more-resilient-meat-and-poultry-supply-chain/

.

Relative to many other industries regulated by ELGs, the MPP industry plays a critical role in the nation's food supply chain. The supply chain disruptions during the COVID-19 pandemic highlighted the problems with the consolidation of the industry over the last 50 years and how susceptible it is to shocks. The pandemic disrupted both the market supply and demand patterns typically observed. As the demand for meat and poultry from restaurants declined dramatically in response to the public lock down efforts, the demand for meat from grocery stores and on-line sources rose.

17

At the same time, COVID began to spread rapidly through meat and poultry processing facilities. This resulted in a significant short-run disruption to supply as facilities temporarily closed and many more reduced line speeds due to both worker shortages and safety concerns.

18

These combined changes to demand and supply led to shortages and higher prices for many meat and poultry commodities (The White House. 2022).

17

Hobbs J.E. (2021). The Covid-19 pandemic and meat supply chains. Meat science, 181, 108459.

https://doi.org/10.1016/j.meatsci.2021.108459.

18

Whitehead, D., & Brad Kim, Y.H. (2022). The Impact of COVID 19 on the Meat Supply Chain in the USA: A Review. Food science of animal resources, 42(5), 762-774.

https://doi.org/10.5851/kosfa.2022.e39.

EPA's analysis showed Options 2 and 3 have more potential facility closures than Option 1 due to the requirements imposed on additional facilities, thus potentially harming the Administration's priority to expand and diversify the meat and poultry processing industry. For this reason, EPA is selecting Option 1 as the preferred proposed option at this time, rather than more expansive options, as it would allow the Agency to achieve significant reductions in nutrients and conventional pollutants in a way that avoids potential supply chain disruptions in the nation's food supply, consistent with the policy direction in the E.O. While EPA's analysis shows Option 1 may result in 16 possible facility closures, this represents 0.03 percent of total industry facilities, and thus, any supply chain disruptions from such possible closures would be minimal, temporary and localized. In addition, the forecasted change in industry production levels due to the preferred Option 1 is estimated to be only 0.01 percent. By comparison, EPA's analysis shows that potential facility closures would be 22 under Option 2 and 53 under Option 3, supporting EPA's selection of Option 1 as the preferred proposed option. See the Other Economic Factors section of the RIA for a more in-depth discussion of this issue.

The CWA gives EPA authority to consider these policy concerns in determining BAT (CWA section 304(b)(2)(B) (authorizing consideration of “such other factors as the Administrator deems appropriate” in assessing BAT);

Weyerhaeuser

v.

Costle,

590 F.2d 1011, 1045 (D.C. Cir. 1978) (Congress intended that EPA have discretion “to decide how to account for the consideration factors, and how much weight to give each factor.”)).

At the same time, EPA intends to consider any impact of federal financial assistance on wastewater treatment upgrades at these facilities. EPA seeks comment on whether other federal funds or other programs could reduce or minimize potential impacts of the more expansive options on the Administration's efforts to support the meat and poultry supply chain.

EPA has also heard from small entity representatives (SERs) during EPA's SBREFA panel process (

Final Panel Report of the Small Business Advocacy Review Panel on EPA's Planned Proposed Meat and Poultry Products Effluent Limitations Guidelines Rulemaking.

USEPA. 2023. DCN MP00347) that there are potential

concerns about the availability of nitrogen removal technologies under Options 2 and 3, due to space limitations for such technologies at some facilities. Although these technologies are currently in use in the industry, these technologies require a greater land area than DAF (the conventional pollutant control technology that is the basis for the limits on indirect dischargers under Option 1), particularly at facilities with high wastewater flows. EPA has heard concerns from SERs with respect to facilities located in or near urbanized areas where sufficient space may not be available to install certain components of nitrification/denitrification technology, such as aerobic and anaerobic lagoons. Industry stakeholders have also indicated that zoning restrictions may prevent them from acquiring adjacent parcels of land that may be needed for installation of such technology. EPA estimates that 143 indirect discharging facilities would incur costs to comply with nitrogen and phosphorus effluent limits under Option 2 and 777 such facilities would incur costs to comply with limits under Option 3, many of which would need to install nitrogen control technologies for the first time. EPA would like additional information about available space at such facilities, as well as information on other high rate/small footprint nutrient removal technologies that might be available to treat MPP wastewater.

EPA also heard from SERs concern about the availability of nutrient control technologies for indirect dischargers under Options 2 and 3 due to ongoing supply chain issues and labor shortages in the wastewater treatment industry. While these technologies are widely available and have been used in many industrial and municipal wastewater treatment facilities across the country to remove nutrients, SERs have raised concerns about the timing of such availability. The amount of a good supplied for a market can take time to adjust to a sudden large increase in demand. In addition, if there is a temporary spike in demand resulting from many facilities needing to come into compliance at the same time, there may not be an incentive for the companies that make and install these technologies to increase their long-term capacity. Given the large number of indirect facilities that would need to install new nutrient removing treatment technologies under Options 2 and 3, there is a potential for implementation delays. These implementation delays could result in facilities operating out of compliance or temporarily closing until they are able to get the new control technology in place. See the Other Economic Factors Section of the RIA for a more in-depth discussion of this issue.

Given the large number of indirect discharging facilities that would likely need to install nutrient removal technologies under Options 2 and 3, and the ongoing supply chain issues, it is not clear whether these technologies will be available in sufficient quantity to allow for installation within the three-year statutory timeframe for pretreatment standards under CWA section 307(b) (33 U.S.C 1317(b)). EPA solicits additional information about production capacity for nutrient control technologies in the industry, given that the Nation is currently in the process of significant investments in water infrastructure as part of the Bipartisan Infrastructure Law.

In addition, EPA is considering whether there are compliance flexibilities for indirect discharging facilities that would allow for additional time beyond the three-year statutory timeframe in CWA section 307(b) (33 U.S.C. 1317(b)), in light of potential concerns about availability of technology due to supply chain issues. EPA solicits comment on how it could implement new pretreatment standards consistent with this provision recognizing that there could be supply chain issues preventing facilities from installing the treatment technologies. For example, one option could be to allow phased implementation based on size thresholds, whereby larger facilities would be required to install such technologies within three years of the effective date of the rule, while smaller facilities would be allowed additional time to install such technologies, based on a demonstration that the facility is contractually bound to procure the technology within a specified time of the effective date. EPA solicits comment on such an approach, or other implementation flexibilities for indirect discharging facilities, should the Agency decide to finalize a rule based on a more expansive option than the preferred Option 1.

Should the Agency decide to promulgate a rule based on a more expansive option, EPA is considering conditional limits under these options (see Section VII.F) to reduce costs and eliminate the need for redundant treatment. To better understand the potential use of such conditional limits, EPA solicits information about how many POTWs that receive MPP wastewater have nitrogen and phosphorus removal technologies that could provide an equivalent level of treatment, and whether such flexibilities may result in significant cost savings, including any relevant data on incremental cost savings or other benefits.

EPA has also heard from industry representatives that since nitrification/denitrification technologies also remove organic pollutants (as measured by BOD

5

), there is some concern about the ability of POTWs to meet their discharge limitations should indirect discharging MPP facilities be required to meet nitrogen pretreatment standards. The secondary treatment regulations at 40 CFR 133.102 require POTWs to achieve a 30-day average percent removal of BOD and TSS of not less than 85 percent. If MPP facilities currently discharge a significant quantity of organic pollutants to a POTW, that load would be reduced after meeting any nitrogen pretreatment standards. That may therefore reduce the percent reduction in BOD achieved at the POTW since the POTW would be receiving more dilute flows. While EPA notes that the secondary treatment regulations at 133.103(d) allow for consideration of less concentrated influent wastewater and the substitution of a lower percent removal requirement or a mass loading limit for the percent removal requirement by the Regional Administrator or State Director, which could address this issue, EPA solicits additional comments on this concern from the POTW community.

F. Additional Provisions

In addition to seeking comment on the three proposed regulatory options, EPA solicits public comment on three additional provisions that would apply with respect to some of these options: First, with respect to the pretreatment standards for nitrogen and phosphorus that would apply to indirect dischargers under Options 2 and 3, EPA solicits comment on a provision that would allow an exemption from these limits for indirect discharging MPP facilities discharging to POTWs that provide equivalent nutrient removal as would be required under the proposed PSES/PSNS. Such “conditional limits” have been used in previous ELGs, such as the Iron and Steel Manufacturing Effluent Guidelines (40 CFR 420.15). EPA is considering including such a provision in any final rule that would contain nutrient pretreatment standards (such as under Options 2 or 3) because nitrogen and phosphorus removal technologies involve more costly, advanced treatment than is required for conventional pollutants and some facilities have already shared costs to upgrade their receiving POTW to remove nutrients to meet Water Quality Based Effluent

Limits in the POTW's discharge permits. If the receiving POTW is providing equivalent nutrient removal, then the MPP facilities may not need to pretreat their wastewater to remove nutrients to achieve an equivalent environmental outcome. Conditional provisions that allow this flexibility, provided the POTW agrees, would reduce costs for indirect dischargers where the POTW already has nutrient removal technologies and eliminate redundant treatment. For conditional limits applied to a MPP facility, EPA solicits comment on how to structure such a provision to include factors such as what treatment at the POTW could be considered equivalent, whether the POTW permit should contain nitrogen and phosphorus effluent limits at least as stringent as the pretreatment standards that would be required at the MPP facility, how to demonstrate compliance, how to ensure that the POTW has the capacity and ability to adequately treat such wastewaters while maintaining its design pollutant capacity reserved for the residential population, and the process by which the facility would request the conditional limits be applied and receive approval from their control authority.

Second, EPA solicits comment on including

E. coli

as a regulated parameter for direct dischargers because the presence of

E. coli

is a more reliable indicator of pathogen pollution than the presence of fecal coliforms.

E. coli,

a predominate member of normal gut microflora in warm blooded animals, has a limited capacity for reproduction outside of the intestinal tract, making its presence in environmental samples a strong indicator of fecal contamination (Odonkor and Ampofo. 2013).

19

Fecal coliforms, a large group of thermotolerant bacteria, include some bacterial species of environmental origin and therefore can result in false positives for fecal contamination (Doyle and Erickson. 2006).

20

EPA updated its recreational water quality standards in 2012 (USEPA. 2012. EPA-820-F-12-058) and the Revised Total Coliform Rule in 2013 (USEPA. 2013. EPA 815-B-13-001) to reflect the current state of knowledge for indicator bacteria. Given these updates in the use of bacterial indicators for water quality, and that current disinfection technology can consistently reduce the presence of these indicator bacteria below the current MPP ELGs, EPA is soliciting comment on more stringent fecal coliform limits for direct dischargers based on BCT/BPT as well as limits for

E. coli

for direct dischargers based on BAT as part of the preferred option in this proposed rule. EPA also solicits comment on replacing fecal coliform limits with

E. coli

limits in any final rule to reduce redundancy in monitoring and limit requirements.

19

Odonkor, S.T.; Ampofo, J.K. 2013.

Escherichia coli as an indicator of bacteriological quality of water: An overview

. Microbiology Research, 4(1), e2.

https://doi.org/10.4081/mr.2013.e2

.

20

Doyle, M.P.; Erickson, M.C. 2006.

Closing the door on the fecal coliform assay

. Microbe. 1, 162-163.

Third, EPA solicits comment on including BAT/NSPS/PSES/PSNS chloride limits for certain wastestreams to remove salts from facility discharges in any final rule based on BAT. In the meat processing industry, salts may be used in further processing and for water softening purposes. The presence of chlorides in discharges to surface waters can adversely affect aquatic organisms because of their sensitivity to concentrations of salt. A review of chlorides data in 2021 discharge monitoring reports from ICIS-NPDES showed about 70 percent of MPP facilities are discharging wastewater with chloride concentrations exceeding ambient water quality criteria of 230 mg/L and secondary drinking water standards of 250 mg/L (the reported 70th percentile of these data was 254 mg/L). Although removing salt is difficult and can be expensive, and therefore treating the whole wastewater effluent may not be the most efficient way to control chlorides, some facilities have certain operations with process wastewater that is kept separate from the main waste stream. These processes include hide processing, water softening regeneration wastewater, meat and poultry koshering, and further processing operations involving marinating and curing. Segregation and treatment of these process wastestreams is currently in place at some MPP facilities. Segregation and management of these high chloride wastestreams could result in targeted reductions of up to 477 million pounds of salt discharges annually at a cost of $172 million annually if applied to 466 facilities under Options 1, 2 and 3.

EPA is considering salt recycle/evaporation systems as the technology basis for establishing BAT/NSPS/PSES/PSNS limitations to control chlorides discharged in high chlorides waste streams in any final rule. EPA is considering effluent limitations for chlorides for direct and indirect discharging facilities in any subcategory with production greater than 5 million pounds per year with high chlorides processes. Analysis indicates that these technologies may be available, economically achievable, and have acceptable non-water quality environmental impacts. See section 12 of the TDD for additional details on the non-water quality environmental impacts of this provision. EPA is not including this provision as part of the preferred option in today's proposal, but rather is soliciting comment on including such a provision in any final rule. In particular, EPA solicits comment on the potential costs of such a provision, and specifically on the cost methodology and results contained in the TDD.

G. Small Business Considerations From the Small Business Advocacy Review Panel

Although this proposed rule would not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this proposed rule on small entities and completed the Small Business Advocacy Review (SBAR) panel to take input from small entities. EPA's proposed preferred option would not expand applicability to smaller direct discharging facilities, but it would propose first-ever national pretreatment standards for indirect discharging facilities. EPA's analysis (see Section VIII) shows that Option 1 would apply to 96 small firms. This section discusses the 5 recommendations from the SBAR panel.

EPA recognizes that under all options considered some facilities will be subject to pretreatment standards and/or categorical discharge standards for the first time, and therefore, may not be familiar with certain aspects of NPDES permitting and/or pretreatment standards. EPA also heard concerns during the SBAR panel outreach meetings with SERs specifically related to a lack of familiarity with effluent guidelines and pretreatment standards. One of the five recommendations was for EPA therefore to solicit comments on what information small facilities would find beneficial (

e.g.,

terms to know for determining applicability and compliance, information from the POTW or control authority, information on the general permitting process, wastewater operator requirements, and how to measure annual production) that could be addressed through guidance or other materials that EPA could provide should any final rule expand applicability to small firms beyond the current rule. EPA therefore solicits comment from small entities on this topic.

EPA also heard from SERs about concerns related to production thresholds for applicability of the ELGs. While EPA's proposed regulatory

options minimize impacts on small entities, another recommendation that EPA also solicits comment on is whether the proposed production thresholds could be adjusted to further minimize such impacts, particularly with respect to Options 2 and 3 as those options expand coverage to additional facilities as compared to Option 1. A third recommendation that EPA also solicits comment on is for alternatives to production thresholds for determining regulation, such as water usage, specifically as a way to minimize impacts to small firms or to provide an alternative means of determining applicability to small firms that may not track production.

Under Options 2 and 3, EPA is considering conditional limits for facilities that discharge to POTWs with nitrogen and phosphorus limits and treatment capabilities equivalent to the treatment that would be needed to comply with any new proposed requirements. For these indirect discharging facilities, with documentation and approval by the POTW/control authority, the MPP facilities would not need to treat the wastewater for nitrogen and phosphorus before discharging to the POTW. A fourth Panel recommendation that EPA also requests comment on is the inclusion of conditional limits, and specifically what documentation and approval by the POTW/control authority would be sufficient to establish conditional limits as a compliance mechanism.

The fifth recommendation was for EPA to consider and take comment on a longer or flexible timeline for small entities to meet proposed regulations. EPA requests comment from small entities on what kind of timeline flexibilities would be helpful. See the SBREFA panel report for additional details regarding these and other considerations that were raised by SERs (USEPA. 2023. DCN MP00347).

VIII. Costs, BPT Wholly Disproportionate Cost Test, Economic Achievability, and Other Economic Impacts

This section provides an overview of the methodology EPA used to assess the costs and the economic impacts of the three options considered in the proposed rule and summarizes the results of these analyses. EPA separately assessed the cost and economic impacts of the BPT, BCT, and BAT requirements for each regulatory option proposed. Then EPA assessed the combined economic effects of all BPT, BCT, and BAT requirements for each option for purposes of implementing the Regulatory Impact Analysis required by E.O. See the RIA and supporting information in the docket for additional detail. The proposed rule would revise BPT for conventional pollutants and consider whether more stringent BCT limits pass the two-part BCT cost test (51 FR 24974 (July 9,1986)). For BPT, EPA performed a “wholly disproportionate” cost test for all direct and indirect discharging facilities that would be required to control conventional pollutants under the three proposed options. For BCT, EPA evaluated the reasonableness of BCT candidate technologies—those that remove more conventional pollutants than BPT—by applying a two-part cost test. The two-part “cost reasonableness” test requires: (1) The cost per pound of conventional pollutant removed by dischargers in upgrading from BPT limits to the candidate BCT option must be less than the cost per pound of conventional pollutant removal by upgrading POTWs from secondary treatment to advanced secondary treatment (“the POTW test”); and (2) an assessment of industry costs per pound removed in upgrading from BPT to BCT relative to the costs per pound removed in going from no treatment to BPT, followed by a comparison of that ratio to the analogous ratio for POTWs (“the industry cost effectiveness test”). The industry ratio must be less than the POTW ratio to pass the test.

The proposed rule would also revise BAT for non-conventional pollutants (nitrogen and phosphorus). EPA assessed the economic achievability of BAT for all direct and indirect facilities that would have requirements for non-conventional pollutants under the proposed options. In developing ELGs reflecting BAT, and as required by CWA section 301(b)(2)(A) (33 U.S.C. 1311(b)(2)(A)), EPA evaluates the economic achievability of the regulatory options to assess the impacts of applying the limitations and standards to the industry as a whole, which typically includes an assessment of incremental facility closures attributable to a regulatory option. As described in more detail below, this proposed ELG is expected to result in incremental costs when compared to baseline operations for many facilities. The cost and economic impact analysis for this proposed rulemaking focuses on understanding the magnitude and distribution of compliance costs across the industry and the broader market impacts. EPA used indicators to assess the impacts of the three regulatory options on the MPP industry. EPA considered the total cost to industry and change in the number and capacity of specific facilities expected to close under the proposed option, as well as the other options considered, compared to baseline. EPA also analyzed the ratio of compliance costs to revenue to see how the three options would change the number of plants and their owning entities that exceed thresholds indicating potential financial strain. In addition to the analyses supporting the economic achievability of the regulatory options, EPA conducted other analyses to (1) characterize other potential impacts of the regulatory options (

e.g.,

on market prices) and (2) to meet the requirements of E.O.s or other statutes (

e.g.,

E.O. 12866, Regulatory Flexibility Act, Unfunded Mandates Reform Act).

A. BPT Wholly Disproportionate Cost Test

EPA estimated facility-specific costs and loads for two levels of treatment technology reflected in the regulatory options developed. The first level of treatment was the use of DAF technology. This level of technology is already in place for direct discharging facilities reflecting the existing rule BPT, BCT and BAT requirements but would be a new requirement for indirect discharging facilities. The CWA requires that the EPA consider “the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application,” and these costs should not be wholly disproportionate to the corresponding effluent reduction benefits. As the U.S. Court of Appeals for the Fifth Circuit stated, “The courts of appeal have consistently held that Congress intended section 304(b) to give the EPA broad discretion in considering the cost of pollution abatement in relation to its benefits and to preclude the EPA from giving the cost of compliance primary importance” (

Chemical Manufacturers Assn.

v.

U.S. EPA,

870 F.2d 177, 204, (5th Cir. 1989)).

Table VIII-1 presents the annualized after-tax technology costs and associated pollutant load reductions for individual subcategories of facilities and the industry as a whole. Although BPT applies to both conventional and nonconventional pollutants, DAF technology is primarily employed to address conventional pollutants, so only conventional pollutant reductions are shown. Load reductions reflect the change in pollutants being discharged from regulated facilities to their receiving POTWs. The table demonstrates that under BPT, there would be significant reductions in conventional pollutant loading for each subcategory and the industry as a

whole, across all three options. Based on these results, EPA proposes to find that BPT costs for conventional pollutant reductions under the preferred Option 1 are not wholly disproportionate to the corresponding effluent reduction benefits. EPA also solicits comment on whether the BPT costs of conventional pollutant reductions under regulatory Options 2 and 3, as reflected in the table below, are also not wholly disproportionate to the effluent reduction benefits.

Table VIII-1

Rule option

Sub-

categories

Total annualized BPT costs

21

(millions of $2022)

Oil & grease

BOD

TSS

Total

pollutants

Oil & grease

BOD

TSS

Total

pollutants

BPT Reductions (M lbs/yr)

BPT Ratio lbs/$

Option 1

A-D

$2.00

3

7

3

13

$0.63

$0.31

$0.65

$0.16

F-I

2.46

6

0

0

6

0.43

18.15

36.31

0.41

J

0.74

0

2

1

3

2.91

0.42

0.83

0.26

K

7.08

3

61

100

164

2.65

0.12

0.07

0.04

L

1.66

0

8

13

22

4.60

0.20

0.12

0.08

All

13.93

12

77

118

207

1.14

0.18

0.12

0.07

Option 2

A-D

2.00

3

7

3

13

0.63

0.31

0.65

0.16

F-I

2.46

6

0

0

6

0.43

18.15

36.31

0.41

J

0.74

0

2

1

3

2.91

0.42

0.83

0.26

K

7.08

3

61

100

164

2.65

0.12

0.07

0.04

L

1.66

0

8

13

22

4.60

0.20

0.12

0.08

All

13.93

12

77

118

207

1.14

0.18

0.12

0.07

Option 3

A-D

15.76

7

14

7

28

2.25

1.10

2.32

0.56

F-I

6.89

11

0

0

11

0.64

27.30

54.60

0.62

J

0.79

0

2

1

3

3.10

0.45

0.88

0.27

K

7.75

3

63

104

170

2.78

0.12

0.07

0.05

L

1.66

0

8

13

22

4.60

0.20

0.12

0.08

All

32.84

21

88

126

234

1.55

0.37

0.26

0.14

B. BCT Cost Test

In July 1986, EPA explained how it developed its methodology for setting effluent limitations based on BCT (51 FR 24974). EPA evaluates the reasonableness of BCT candidate technologies—those that remove more conventional pollutants than BPT—by applying a two-part cost test: a POTW test and an industry cost-effectiveness test.

21

All BPT and BAT costs were annualized using the weighted average cost of capital (WACC) for facilities. The WACC was derived based on facility responses to Industry Survey. See Section 5.2.3 of the Regulatory Impact Analysis for a detailed explanation of how the WACC was derived.

EPA first calculates the cost per pound of conventional pollutant removed by industrial dischargers in upgrading from BPT to a BCT candidate technology, and then compares this cost to the cost per pound of conventional pollutants removed in upgrading POTWs to advanced secondary treatment (

i.e.,

“the POTW test”). The upgrade cost to industry must be less than the POTW benchmark of $0.25 per pound (in 1976 dollars) or $1.48 per pound (in 2022 dollars). In the industry cost-effectiveness test, the ratio of the cost per pound to go from BPT to BCT divided by the cost per pound to go from raw wastewater to BPT for the industry must be less than 1.29 (that is, the cost increase must be less than 29 percent).

For purposes of this analysis, for the preferred Option 1, EPA compared the cost of upgrading from the candidate BPT (based on screens followed with DAF technology for 720 large indirect facilities) to BCT (based on biological treatment to achieve full denitrification and chemical precipitation with filtration as described for BAT in Section VII C.1). The cost for these 719 facilities to upgrade from candidate BPT to candidate BCT would range from $0.26 to $1.32 per pound of pollutant removed depending on the subcategory. Option 2 involves the same 719 facilities receiving conventional pollutant removal technology; thus, the cost and results of this test would be the same as Option 1. Option 3 would require 1,485 indirect facilities to implement conventional pollutant removal technology, and the cost for these facilities to upgrade from candidate BPT to candidate BCT would range from $0.30 to $1.03 per pound of pollutant removed depending on the subcategory. The section 9 of the TDD provides more details on the calculations of the BCT cost tests.

In developing BCT limits, EPA considered whether there are technologies that achieve greater removals of conventional pollutants than the candidate for BPT, and whether those technologies are cost-reasonable according to the prescribed BCT tests. For Subcategories A through D, F through J, K, and L, EPA identified technologies that can achieve greater removals of conventional pollutants than the candidate BPT standards; however, this technology is full treatment (based on screening/grit removal, DAF, anaerobic lagoon, biological treatment, chemical phosphorus removal, sand filter, and solids handling), and EPA proposes to find that it does not pass the BCT cost test under any of the proposed options. Furthermore, since these limits are for indirect dischargers that send their wastewater to POTWs, and POTWs are designed to remove BOD, TSS, and oil & grease, EPA considers screens with DAF treatment an appropriate pretreatment technology for PSES/PSNS. Accordingly, E

This text is long and has been trimmed here. Open the source document for the complete record.