EPA proposes meat and poultry effluent standards

The Periodic | By WALKER LIVINGSTON, ESQ

Jan. 23, 2024

The EPA has proposed a suite of effluent guidelines and standards for meat and poultry facilities around the country, seeking to reduce the amount of nutrient pollution into the nation’s waterways.

  • Background: Clean Water Act

    • The Clean Water Act (CWA), passed as the Federal Water Pollution Control Act Amendments of 1972, is the landmark water protection statute in the United States. The CWA created a comprehensive program of regulation to preserve the chemical, physical, and biological integrity of U.S. waters, including prohibiting the discharge of pollutants from a point source into waters of the United States (WOTUS).
    • Discharges into WOTUS may be authorized via a National Pollutant Discharge Elimination System (NPDES) permit. There are two approaches for permits to control discharges of pollutants: technology-based controls that establish a floor performance for all dischargers in a specific industry, and water-quality based limits where technology-based limits are insufficient to meet applicable water quality standards. The CWA authorizes the Environmental Protection Agency (EPA) to establish nationally applicable technology-based effluent limitations guidelines (ELGs) and new source performance standards (NSPS) to control these discharges.
    • EPA is also authorized to promulgate national pretreatment standards to restrict pollutant discharges from indirect dischargers of pollutants. These pretreatment standards are intended for pollutants that pass through, interfere with, or are incompatible with the operations of publicly owned treatment works (POTWs). EPA considers a pollutant as “passing through” a POTW when the average percentage of pollutant removed by well-managed POTWs is less than the average percentage removed by direct dischargers of the pollutant.

    Background: Effluent Limitation Guidelines and pretreatment standards

    • EPA determines ELGs based on the performance of control and treatment technologies in CWA Sections 304(b) and 306. The agency issues national ELGs for three different categories of pollutants: (1) conventional pollutants (such as fecal coliform); (2) toxic pollutants (such as arsenic and chromium); and (3) nonconventional pollutants (such as nitrogen and phosphorus). These are then specified via four types of technology specific ELGs and two types of pretreatment standards: (1) best practicable control technology currently available (BPT); (2) best conventional pollutant control technology (BCT); (3) best available technology economically achievable (BAT); (4) new source performance standards (NSPS); (5) pretreatment standards for existing sources (PSES); and (6) pretreatment standards for new sources (PSNS).
    • BPT is the first level of control for existing direct dischargers. BPT considers the cost of effluent reductions in relation to effluent reduction benefits, the age of equipment and facilities, processes used at the facility, and more. However, if the performance across industry is inadequate, EPA can set a level of control higher than what is currently in place. BCT is the second level of control for direct dischargers of conventional pollutants. BCT limitations follow a two-part “cost reasonableness” test for conventional pollutants, covering pollutants like oil and grease, fecal coliform, and pH.
    • BAT is the second level of stringency for controlling discharge of toxic and nonconventional pollutants. BAT has been referred to as the CWA “gold standard,” as it represents the best available, economically feasible performance for an industrial category. EPA reviews a variety of factors when establishing or revising BAT, including the cost of BAT effluent reductions, processes employed, the age of facilities and equipment, and more.
    • NSPS are effluent reductions based on best available demonstrated control technology (BADCT) for new facilities. Because the owners of newly constructed facilities have the options to install better and more efficient effluent reduction processes, NSPS are almost always the most stringent controls attainable for facilities for all pollutants.
    • PSES and PSNS represent standards designed to prevent the discharge of pollutants that pass through, interfere with, or are incompatible with the operation of POTWs for existing and new sources, respectively.

    Background: Meat and Poultry Production ELG history

    • EPA initially proposed ELGS for the Meat and Poultry Production category (MPP ELGs) in 1974 and most recently amended the regulation in 2004. The MPP ELGs currently only apply to direct dischargers, not indirect dischargers, meaning that about 150 of the 5,055 MPP facilities in the U.S. are covered by the ELGs. The rest of the facilities (about 4,900 in total) are not regulated under the current MPP ELG. The current MPP ELGs also do not regulate phosphorus discharges into WOTUS.
    • EPA began its review of potential revisions to the MPP ELGs in 2019 with its national review of nutrient discharges from industrial sources in the Preliminary Effluent Guidelines Program Plan 14. This review examined publicly available discharge monitoring and Toxics Release Inventory (TRI) data from 2015 to 2019 on nutrient discharges from industrial point source categories. In EPA’s analysis, the MPP ranked as one of the highest in analysis for total releases of nitrogen and phosphorus, pushing the agency into the rulemaking process.
    • The agency also undertook a detailed study of the meat and poultry products category in 2021 as part of the Preliminary Effluent Guidelines Program Plan 15. The agency utilized the study to gain a better understanding of the industry and evaluate whether the ELGs should be revised in the future. The agency determined that a majority of MPP facilities are indirect dischargers and not subject to pretreatment standards, and most POTWs do not have limits for nitrogen and phosphorus, meaning that POTWs may not be removing much of the nutrient load discharged by MPP industrial users. The agency announced that it would initiate an MPP ELG rulemaking based on the results of the study in the same document.
    • Although the agency had begun rulemaking, it was sued on December 23, 2022, by a set of environmentalist groups seeking to compel the agency to revise the ELGS and promulgate pretreatment standards. EPA and the parties reached a settlement in 2023 which required the agency to sign a notice of proposed rulemaking by December 13, 2023, and take final action on the MPP ELGs by August 31, 2025. The agency signed the rule in mid-December 2023 and issued a press release announcing the prepublication rule on December 15, 2023.

    Proposed MPP ELGs

    • On January 23, 2024, EPA published the official proposed rule for the MPP ELGs in the Federal Register. The rule seeks to revise the current ELG based on the six different types of technology controls allowed by the CWA. The agency also broke up its recommendations into three different regulatory options. The first, EPA’s “preferred regulatory option,” would create new phosphorus limits and revise nitrogen limits for large direct dischargers, in addition to new pretreatment standards for conventional pollutants for large indirect dischargers. The second would include the requirements for Option 1 in addition to nutrient limits for indirect discharging first processors and renderers above certain production thresholds. The third option would be similar to Option 2 but would lower production thresholds for nutrient limits and conventional pollutant limits for direct and indirect dischargers.
    • For direct discharges from existing sources, Options 1 and 2 would include new phosphorus effluent limitations. These limitations would be based on chemical removal, with more stringent nitrogen effluent limitations that are based on biological treatments which would be able to achieve full denitrification. The agency would not change BCT and BPT for conventional pollutants from the previous MPP ELG. The limits would apply to direct discharging facilities that produce at least 50 million pounds of finished product per year for meat further processors, 50 million pounds of live weight killed per year, 100 million pounds of live weight killed for poultry slaughtering, 7 million pounds of finished product per year for poultry further processors, and 10 million pounds per year of raw material processed for renderers. Option 3 would include the same BAT requirements as Option 1, but with lower production thresholds for applicability as well as more stringent denitrification regulations.
    • For indirect discharges to POTWs from existing sources, each regulatory option differs slightly. Under Option 1, EPA would create new conventional pollutant limits for PSES, applying to the same facilities and production thresholds for direct dischargers from existing sources. The agency would not issue new PSES based on pretreatment standards for nitrogen and phosphorus. Option 2 would include the same PSES requirements for conventional pollutants, in addition to new pretreatment standards for phosphorus based on chemical removal and nitrogen pretreatment options. These PSES requirements would apply only to much larger facilities processing at least 200 million pounds of product per year. Option 3 would take the same PSES requirements as Option 2 but lower the production thresholds significantly to require all direct discharging facilities producing more than 5 million pounds per year for conventional pollutant standards and 30 million pounds per year for all indirect MPP facilities.
    • EPA would also update NSPS for both direct and indirect discharges based on the specific option chosen by EPA. Therefore, future new indirect or direct discharging facilities would contain the same requirements as existing facilities.
    • Under the least-restrictive option, Option 1, about 21% of MPP facilities that discharge pollutants into WOTUS would be covered under the new ELGs. The most restrictive option, Option 3, would cover about 42% of MPP facilities that discharge pollutants into WOTUS, meaning that more than half of all facilities would not be covered, even under the agency’s most stringent plan for regulation.

    Next steps

    • EPA estimated the costs of the rule at about $230 million per year, with about $85-90 million in quantifiable benefits annually. However, the EPA explained that these benefit numbers reflect the “national effects of increased air pollution and greenhouse gas emissions under the rule,” and that there will also likely be additional non-quantifiable benefits from the proposed rule.
    • The agency will hold two public hearings about the proposed rule. A virtual hearing will be held on January 24, 2024, and an in-person hearing on January 31, 2024. The agency is also accepting comments on the proposed rule via the agency’s docket.
    • The timing of the EPA’s proposed and final rule means that the rule may straddle two different presidential administrations that may have radically different ideas on the role and authority of the EPA. This could mean that a finalized version of the rule under another administration could be significantly pared back. However, EPA may have already anticipated some of this with its multi-option proposal, where the agency has initially picked the least restrictive option as its “preferred” option. Although a future EPA could functionally toss the proposed rule and craft a much less restrictive rule, it would likely be challenged in court, and opponents of the new rule could point to the EPA’s proposed decision to pick the least restrictive model as a way to show that the agency is acting arbitrarily and capriciously.
    • The rule also may be challenged in court, and the agency may lose if its regulatory authority shrinks. As the Supreme Court this term is deciding whether to significantly curtail the powers of agencies, opponents of the final rule may be able to argue that EPA does not have the power to regulate effluent discharges at the level it currently does. The fact that the CWA was written more than 50 years ago and still represents the base of water regulation in the U.S. (with some amendments in the ensuing years) could allow opponents to argue that Congress had not conceived of some of the modern problems that the EPA regulates, and therefore it should not have the power to do so.
    • The basis for the lawsuit will likely be articulated in comments to EPA on the proposed regulation. Comments from industry associations, attorneys general, and environmentalist groups often represent the basis of future lawsuits over rules. These comments often take form similar to a petition for review or a legal complaint, complete with citations and a well-formed legal argument. As the comment period closes in March (unless it is extended), comments from those groups may sketch the background for a future legal fight over the MPP ELGs.

    To contact the author of this analysis, please email Walker Livingston.

    To contact the editor of this analysis, please email Patricia Iscaro.

    Key Documents and Dates

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