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December 09, 2021

Meat and Poultry Products (MPP) In the Headlights: EPA Seeks Comments on Study Setting Stage for MPP Sector-specific Wastewater Discharge Standards

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The U.S. Environmental Protection Agency (EPA) has recently published a Notice announcing its intent to seek approval of an information collection request (ICR) from the White House Office of Management and Budget (OMB). Although OMB has, in previous administrations, played a significant role in reducing EPA regulatory activity, it is expected that the ICR will be approved. If OMB approves the request, EPA will be authorized to conduct a mandatory survey of the Meat and Poultry Product (MPP) industry, which includes slaughterhouses, processors, independent renderers, and poultry processors. The survey will gather information about the industry's wastewater discharge practices and will support updates to the effluent limitation guidelines (ELGs) applicable to the MPP industry sector. The proposed updates are expected to expand the number and type of processors covered by the MPP ELGs and require significant wastewater treatment prior to discharge by MPP operations to Publicly Owned Treatment Works (POTWs). Before submitting its ICR, EPA is soliciting public comments on specific aspects of the proposed information collection. Accordingly, interested persons should take the opportunity to submit comments, as well as prepare to engage with EPA during later stages in the rulemaking process.

Background - 2004 MPP ELGs Cover only "Direct Dischargers" 

The Clean Water Act directs EPA to develop ELGs to limit pollutants discharged from designated industrial point source categories. EPA initially promulgated ELGs for the MPP category in 1974 and amended the regulation in 2004. (See 40 CFR Part 432.) The current MPP ELGs cover wastewaters only when directly discharged to "Waters of the United States" by slaughterhouses, further processors, independent renderers, and poultry processors. The 2004 regulation applies to about 300 of the estimated 7,000 MPP facilities nationwide—smaller facilities and indirect dischargers are not included in the current rule.

The ICR Notice states that EPA conducted a cross-industry review of nutrients in industrial wastewater, which revealed that the MPP category ranked among the top two industrial categories based on 2018 data. In response to the findings of the nutrient study, in 2020, EPA conducted a more detailed study of the MPP category. On Sept. 14, EPA announced its Preliminary Effluent Guidelines Program Plan 15 (Preliminary Plan 15), in which EPA discussed the results of the 2020 detailed study and committed to initiating a rulemaking to revise the existing discharge standards for the industry.

ICR and Rulemaking - Setting Stage for Expanded MPP ELGs

As part of its review of existing rules and the Preliminary Plan 15 commitment to an MPP rulemaking, EPA has now proposed an ICR to gather information about the MPP industry. Based on its detailed study of the MPP category, EPA made two key findings: (1) that MPP facilities are causing problems for POTWs that receive MPP wastewater via indirect discharges; and (2) that there are existing, affordable technologies that can reduce nutrient concentrations in MPP wastewater.

Through this proposed ICR, EPA intends to collect industry information that is generally not publicly available and that is essential to EPA's evaluation of whether an update to the current rule for the MPP category is warranted. Among the rule changes being considered by EPA are the addition of nutrient limits, revision of current limits, and expansion of the current rule to include additional facilities that were previously excluded from the 2004 regulation.

Next Steps

EPA's Office of Water plans to administer 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 US, indirectly discharge wastewater, or do not discharge wastewater. All facilities that receive the questionnaires will likely be required to respond within 60 days of receipt. Failure to respond, late filing, or failure to comply with the instructions may result in an assessment of civil or administrative penalties and other sanctions.

Through its Nov. 15 Notice, EPA is soliciting public comments on the proposed ICR (i.e., the two industry questionnaires). All supporting materials for the rulemaking and proposed ICR can be found at EPA's docket at regulations.gov. Interested parties should:

  1. Submit comments on the proposed ICR before the Jan. 18, 2022 deadline;
  2. Familiarize themselves with the types of information to be gathered and understand their response obligations if they receive a questionnaire; and
  3. Prepare for future opportunities to engage with OMB and EPA on the ICR and any proposed rulemakings affecting the MPP category.

Clark Hill's Environmental & Natural Resources attorneys help regulated facilities, trade associations, and other stakeholders in the preparation of ICR responses and rulemaking comments and, also, counsel interested persons on potential impacts and opportunities from these actions. Our Government and Regulatory Affairs team, which includes former Senate and OMB Chiefs of Staff, is also available to develop and execute our clients' Legislative and Administration advocacy initiatives.

The views and opinions expressed in the article represent the view of the author and not necessarily the official view of Clark Hill PLC. Nothing in this article constitutes professional legal advice nor is intended to be a substitute for professional legal advice.

ALM expressly disclaims any express or implied warranty regarding the OnPractice Content, including any implied warranty that the OnPractice Content is accurate, has been corrected or is otherwise free from errors.

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