Comment submitted by Kent Webb, Outokumpu American Brass

If the attachment below was unsuccessful or is unreadable, please contact me via via phone number 716-879-6875 or e-mail address: kent.webb@outokumpu.com and I can e-mail a copy of the comments in. Kent Webb In its Advanced Notice of Proposed Rulemaking on "Availability of and Procedures for Removal Credits" (Docket ID No. OW-2005-0024, from the Federal Register Vol. 70,no.198 published on October 14, 2005, EPA solicits comments on the following: Whether there are any options to amend the "consistent removal" provision in the removal credits regulations that would be consistent with the earlier Third Circuit Court decision. In short, my comment is that there definitely are such options and I am submitting the one today that I feel most meets the thrust of the court's concern (even more closely than the current EPA regulation) while much more accurately reflecting the POTW's actual pollutant removal capability. ____________________________________________________________________ __________________________________ THE PROBLEM Two of the most critical comments by the court in its 1986 decision invalidating the 1984 version of the Removal Credits Regulation were the following: If there could be any doubt regarding the fact that EPA's 1984 rule is in derogation of the statute's mandate, it is dispelled by a consideration of the legislative history of the 1977 Act. In enacting the removal credit provision in 1977, Congress had two purposes. Congress' first, and overriding, concern was to ensure that the combined treatment by the indirect discharger and the POTW is equal to that by the direct discharger operating under BAT limits. Secondly, as a subordinate goal, Congress sought to avoid redundant treatment by the indirect discharger and the POTW insofar as this is possible without compromising the primary goal of parity. We do not believe that Congress' mandate for the removal of toxic wastes should be subject to exceptions dictated by the convenience of the dischargers. The reason for requiring polluters to meet daily and monthly limits as well as long-term limits is obvious: a single concentrated discharge of a toxic pollutant can do irreparable damage to the ecology of a body of water, killing fish and other life forms. Such excessive toxic discharges cannot be compensated for by a reduced discharge of water during subsequent months. [FN17] Under EPA's current definition of consistent removal, discharges could be above the limit for months at a stretch, so long as these above-average months were offset by below-average discharges in other months. It is clear from the above that the court was concerned about the parity of treatment of Direct Discharger and the combined treatment of the Indirect Discharger and the POTW and it was quite concerned about the effect of isolated concentrated discharges. Ironically, the current system of compliance enforcement for Direct Dischargers is very different from the Indirect Discharger under the 1981 version of the removal credits regulation currently in effect primarily because compliance demonstrations for Direct Dischargers do not eliminate from consideration the best 50% of the compliance sampling results while that is precisely what it does for the POTW portion of the combined Indirect Discharger/POTW removal.On the other hand, when considering the possibility of high excursions best illustrated by the "Daily Maximum" limitations, there is not a linking of the least removal from the POTW to the day of highest discharge from the Indirect Discharger. For example, let us assume that a Direct Discharger were required to sample three consecutive days on two different occasions during a year. The average of those three results would be used to determine compliance with the Monthly Average Limit and the highest single day's discharge would be used to compare to the Daily Maximum Limit used to protect against a concentrated discharge. Each of the two sampling events are imputed to represent the performance of the facility over the previous six months. The best two days of data are only disregarded for the Daily Maximum Limit compliance demonstration. They are not ignored for the Monthly Average Limit. With current rules Indirect Dischargers are treated in a largely opposite manner. The best 50% of the effluent removal measurements are ignored when calculating the Monthly Average Limit compliance while the effect of the worst removal performance on a Daily Maximum result is diluted by averaging it in with 5 other monthly sampling results. ____________________________________________________________________ _____________________________________ THE PROPOSAL I would propose that a POTW do as a Direct Discharger would by sampling, for example, four consecutive days two times a year. The average of the four days' results would be the removal credit available for that parameter for dischargers within its system over the next representative period (six months if the sampling was done twice a year) for calculating Monthly Average Limits. The two least effective days of the four would be used by facilities for calculating compliance with their Daily Maximum Limit. This would have the effect of using the POTW's actual average along with the industrial discharger's actual average for the more long-term effects reflected in the monthly limit while combining the poorest 50% of the days at the POTW with the highest discharge day from the Indirect Discharger when calculating the more short-term concentrated Daily Maximum Limit. It should be emphasized that the lowest removal credits determined under this method for Daily Maximum Limits are going to be lower than the credits presently extended for them. ____________________________________________________________________ ______________________________________ OBJECTIONS VERSUS ADVANTAGES What objections might be raised with this system?: OBJECTION 1-- Changing the removal credit and reporting the change two times a year (or possibly more if the frequency of sampling was greater) to the POTW's user base would be a burden to the POTW and would not leave the user a clear idea of what credit he can count on. ADVANTAGE -- The effect of this rule would be that customers would have more reason to complain to the POTW when its performance was inconsistent. At the current time one bad day out of twelve is not a big deal for them on their removal credit as it only has a 16.67% effect, Under the new formula, it would be 50% and would cause them to really encourage their POTW to demonstrate more consistent removal. In addition, while the rule would reduce the demand for redundant treatment of wastewater to meet the monthly average limit, it would discourage inconsistency and excursions on the high side by the Indirect Discharger because the removal credit would be the least for Daily Maximum Limits. (Indeed, they would be lower at times than the current removal credit system would give for the Daily Maximum Limit.) This exactly reflects the desire of Congress both to achieve consistent removal and eliminate redundant treatment. (One could also ask: If it is not an undue burden for a discharger to report twice a year on its performance to the POTW why should it be an undue burden on the POTW to report twice a year on its performance to its users?) OBJECTION 2 -- This proposal would have two separate removal credits; one for monthly average purposes and one for Daily Maximum Limits and would have the effect of raising the removal credit for Monthly Average Limit purposes but sometimes lowering it for Daily Maximum Limit purposes when compared to the current regulation. . . ADVANTAGE -- This would much more closely reflect parity with the Direct Discharger while being more protective than the current regulation on short-term concentrated discharges. One of the issues raised but unanswered by the court in its ruling was that by giving a removal credit using the lower half of the 12 monthly sampling results EPA was only indicating compliance might be achieved 75% of the time. Under the method I am proposing, the odds of the Direct Discharger having its highest of three discharge days at the same time as the POTW would have its worst day out of four days' performances is 1/4 X 1/3 or only 8.3%.The removal rates on any other day would be sufficient for compliance. Thus, this method would actually decrease the odds of noncompliant discharges being permitted due to extending an unrealized removal credit on the highest concentration Daily Maximum Limit. OBJECTION 3 -- How would a bifurcated removal credit apply to trucked-in waste? ADVANTAGE -- First it should be recognized that this will be a boon to the trucked-in waste industry. By giving monthly average credits which more nearly reflect actual removals, small businesses that might otherwise have to build a less than professionally managed treatment operation in-house may be able to get a sufficient removal credit to allow use of a professionally managed POTW that would be happy to have the additional revenue.But the direct answer would be that the trucked in waste discharger would have to meet both monthly average and Daily Maximum limits using the respective removal credits; just like a direct discharger would. Demonstration of compliance would be his responsibility. SUMMARY Under this rule, those POTW's which do not display major excursions on the low removal side in their performance will find it easier to attract customers that might otherwise become direct dischargers. Those POTW's with inconsistent performance that feature days with quite poor removal will be incentivized to become more consistent under this rule so that they can attract more customers.While it may seem that POTW users are locked into their current POTW, in fact, new businesses may choose to locate in a district with attractive removal credits and many facilities could take advantage of sophisticated POTWs within trucking distance of their operation by sending trucked-in waste. Industries that want to reduce the cost of over-treatment of wastewater will be able to do so by taking advantage of the removal credits Congress wanted them to have so that their costs and removals are more on pare with direct dischargers but they will nonetheless be incentivized to improve the management of their less sophisticated facilities so that they do not have excursions on the high side of discharges that could cause them to fail to meet a Maximum Daily Limit. All of these effects will serve to meet Congress' original purpose in creating the removal credits provisions in the Clean Water Act. By doing so, EPA would also meet the concerns of the Appellate Court ruling. SUBMITTED BY: Kent Webb PE/CSP/CIH Outokumpu American Brass Buffalo, NY 14240 e-mail: kent.webb@outokumpu.com Phone: 716-879-6875