[Federal Register Volume 63, Number 78 (Thursday, April 23, 1998)]
[Rules and Regulations]
[Pages 20107-20110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-10717]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 132
[FRL-5999-8]
Amendment of the Provisions To Eliminate and Phase-Out Mixing
Zones for Bioaccumulative Chemicals of Concern and Amendment to
Procedure 8.D. of Appendix F (Pollutant Minimization Program) for the
Final Water Quality Guidance for the Great Lakes System
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; partial amendments.
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SUMMARY: As a result of the decision in American Iron and Steel
Institute, et al. v. EPA (AISI), 115 F.3d 979 (D.C. Cir. 1997), EPA
today is amending the final Water Quality Guidance for the Great Lake
System (Guidance) (40 CFR part 132) by removing the provisions to
eliminate and phase-out mixing zones for bioaccumulative chemicals of
concern (BCCs). Also in response to the AISI decision, EPA is today
amending the Guidance by revising Procedure 8.D. of Appendix F to
remove language in the Pollutant Minimization Program (PMP) provisions
that might imply authorization for imposing water quality-based
effluent limits (WQBELs) on internal waste streams or for requiring
specific control measures to meet WQBELs.
EFFECTIVE DATE: April 23, 1998.
ADDRESSES: The public docket for this and earlier rulemakings
concerning the Water Quality Guidance for the Great Lakes System,
including the proposal, public comments in response to the proposal,
other major supporting documents, and the index to the docket are
available for inspection and copying at U.S. EPA Region 5, 77 West
Jackson Blvd., Chicago, IL 60604 by appointment only. Appointments may
be made by calling Mary Jackson-Willis (telephone 312-886-3717).
FOR FURTHER INFORMATION CONTACT: Mark Morris (4301), U.S. EPA, 401 M
Street, SW, Washington, D.C. 20460 (202-260-0312).
SUPPLEMENTARY INFORMATION:
I. Discussion
A. Potentially Affected Entities
Citizens concerned with water quality in the Great Lakes System may
be interested in this rulemaking. Also, entities potentially affected
by today's action are those discharging pollutants to waters of the
United States in the Great Lakes System. Categories and entities which
may ultimately be affected include:
------------------------------------------------------------------------
Examples of potentially
Category affected entities
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Industry.................................. Industries discharging to
waters in the Great Lakes
System as defined in 40 CFR
132.2.
Municipalities Publicly-owned treatment
works discharging to waters
of the Great Lakes System
as defined in 40 CFR 132.2.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
final rule. This table lists the types of entities that EPA is now
aware could potentially be affected by this action. Other types of
entities not listed in the table could also be affected. To determine
whether your facility may be affected by this final rule, you should
carefully examine the definition of ``Great Lakes System'' in 40 CFR
132.2 and examine 40 CFR 132.2 which describes the part 132
regulations. If you have any questions regarding the applicability of
this action to a particular entity, consult the person listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. Today's Rule
The final Guidance included ambient water quality criteria setting
maximum ambient concentrations for pollutants to be met in all waters
of the Great Lakes Basin and implementation procedures used to develop
WQBELs for facilities discharging these pollutants. States and Tribes
were required to adopt regulations consistent with EPA's Guidance
criteria and implementation procedures by March 23, 1997. Once the
criteria and implementation procedures take effect, permits for
discharges of the pollutants they cover must include WQBELs needed to
attain the criteria if the discharge has or may have the reasonable
potential to cause or contribute to an exceedance of the water quality
standard.
On June 6, 1997, the U.S. Court of Appeals for the District of
Columbia Circuit issued its decision upholding, with three minor
exceptions, the Great Lakes Water Quality Guidance which EPA
promulgated on March 23, 1995. American Iron and Steel Institute, et
al. v. EPA (AISI), 115 F.3d 979 (D.C. Cir. 1997). The Court vacated
three provisions of the Guidance. The Court vacated the criteria for
polychlorinated biphenlys (PCBs), and the provisions of the Guidance
``insofar as it would eliminate mixing zones for bioaccumulative
chemicals of concern (BCCs) and impose water quality-based
[[Page 20108]]
effluent limitations (WQBELs) upon internal facility waste streams.''
115 F.3d at 985. On October 9, 1997, EPA published a notice revoking
the PCB human health criteria pursuant to the Court's decision (62 FR
52922). Today's notice addresses the other two provisions of the
Guidance vacated by the Court.
First, EPA is today removing the mixing zone elimination and phase-
out provision in the Guidance. Procedure 3.C. of the Guidance contained
the provision to eliminate mixing zones for BCCs for new discharges and
to phase them out over the next 10 years for existing discharges. The
Court vacated this provision from the Guidance stating that the Agency
had failed to show that the provision was justified.
Second, EPA is amending Procedure 8.D. of Appendix F in response to
the AISI decision. Procedure 8.D. establishes requirements for a
``Pollutant Minimization Program,'' which is required anytime a permit
includes a WQBEL below the level of quantification (i.e., level of
pollutant that can be reliably quantified by the specified method). In
the AISI decision, the Court vacated Procedure 8.D. insofar as it
authorized internal WQBELs, 115 F.3d at 979, 996. The Court expressed
concern that internal WQBELs would deprive a permittee of the ability
to choose an end-of-pipe control system to meet the water quality based
effluent limits rather than controls on internal waste streams. Id.
Although EPA explained in the Supplementary Information Document to the
Great Lakes Water Quality Guidance (SID) that it had no intent to
impose specific control measures on permittees through the PMP
provision, it is revising the Procedure 8.D. language to allay concerns
about possible misinterpretation of the language as authorizing
imposition of internal WQBELs or specific control measures.
1. Mixing Zone Elimination and Phase-Out Provisions
One of the implementation procedures EPA promulgated in the
Guidance was Procedure 3.C. of Appendix F, mixing zones for BCCs. Under
this procedure, no mixing zones were to be granted for new dischargers
of BCCs after March 23, 1997. Mixing zones for existing dischargers of
BCCs were, moreover, to have been phased out by March 23, 2007. Various
industries and trade associations challenged these mixing zone
provisions for BCCs. They alleged that the elimination of mixing zones
for BCCs would not significantly reduce pollutant loadings to the Great
Lakes but would inflict costs upon industry that are excessive in
relation to the degree of pollution reduction achieved, even if that
reduction were significant.
In the AISI litigation, EPA explained to the Court the significance
of removing BCCs from the Great Lakes Basin because of the closed
nature of the system and its unique environmental characteristics.
While the Court acknowledged the possibility of environmental benefit
of the mixing zone provisions, the Court found that EPA failed to show
that the provisions were justified in light of the costs. The Court
therefore vacated the provisions. 115 F.3d. at 997.
Pursuant to the Court's decision, EPA is today amending the
Guidance by removing Procedure C.3. In the interim, pursuant to
independent State or Tribal authority, Great Lakes States and Tribes
may adopt a mixing zone elimination and phase-out provision. EPA
intends to propose reinstating this provision in the near future and
continues to support eliminating mixing zones for BCCs within the Great
Lakes Basin wherever it is technically and economically feasible to do
so.
2. Pollutant Minimization Program (PMP) Revisions
Procedure 8 of Appendix F of the Guidance addresses situations
where WQBELs are below the level of quantification of the specified
analytical method (i.e., the level that can be reliably quantified). A
WQBEL of this nature must be included in the permit as calculated and
is the enforceable limit. However, because compliance with the limit
cannot be measured end-of-pipe, Procedure 8 includes special provisions
to help ensure that the WQBEL is being met, including the development
and implementation by the permittee of a Pollutant Minimization Program
(PMP), Procedure 8.D. Procedure 8.D. called for, in part, internal
monitoring, a survey of all potential sources of the pollutant of
concern to the waste stream, a control strategy, implementation of
cost-effective control measures consistent with the control strategy,
and reporting on, among other things, all actions taken to reduce or
eliminate the identified sources of the pollutant. In the SID, EPA
explained that:
``In procedure 8, EPA does not go so far as to set in-plant
effluent limitations, but rather simply provides for internal
monitoring and adoption of control strategies with a goal of
maintaining all sources of the pollutant to the wastewater
collection system below the WQBEL. The WQBEL itself continues to
apply only at the end of the pipe, after treatment.'' SID at 425.
EPA further explained that ``the `PMP' makes no attempt to dictate the
treatment or source reduction strategies that a permittee could or
should implement.'' SID at 426.
Industry litigants challenged Procedure 8 as impermissibly
establishing internal WQBELs and dictating how they complied with end-
of-pipe limits, i.e., through source reduction measures. In AISI, the
Court found that, although the CWA clearly allows for monitoring of
internal waste streams to evaluate compliance with end-of-pipe limits
and establishing end-of-pipe WQBELs that effectively force changes to
internal equipment or processes, it does not allow imposition of WQBELs
for internal sources. Accordingly, the Court vacated Procedure 8.D.
``insofar as it would impose the point-source WQBEL upon a facility's
internal waste streams.'' 115 F.3d at 996. The Court did not specify
what language in Procedure 8.D., if any, needed to be changed.
Although EPA has never interpreted Procedure 8.D. to authorize
imposition of internal WQBELs or to dictate control strategies, EPA is
today amending the language in Procedure 8.D. to address the Court's
concerns and eliminate any ambiguity about how EPA intends Procedure
8.D. to be interpreted. Today's amendments cover the two related
concerns raised by the Court: First, that WQBELs not be imposed on
internal waste streams; and second, that permittees retain the ability
to choose how they will comply with permit limits. Eliminating the
references to internal waste stream goals in the introduction to 8.D.
and in paragraph 8.D.3. addresses the first concern. To address the
second concern, EPA is amending language that might imply either that
permitting authorities establish control measures in the PMP
(introduction to 8.D.) or that permittees are restricted in determining
how they will meet their end-of-pipe WQBELs (references to pollutant
sources in paragraphs 8.D.4 and 8.D.5.c).
Today's revisions to Procedure 8.D. do not change the Agency's
intent with respect to implementation of the pollutant minimization
programs; it continues to be that such programs will assist in ensuring
that the WQBELs are met at the end of the pipe. The permittee must
inventory all sources of the pollutant to the waste stream, but in
developing and implementing a control strategy, the permittee may
choose any appropriate control measure(s) that it expects will reduce
pollutant levels so
[[Page 20109]]
as to meet the WQBEL. States and Tribes may evaluate the adequacy of
the permittee's control strategy to achieve the stated goal, but
nothing in Procedure 8.D. authorizes a permitting authority to dictate
specific control measures. EPA strongly encourages permittees to
consider source reduction approaches, such as process changes and
product substitution, when determining how to obtain necessary
reductions because these measures are often more cost-effective than
treatment alternatives. A permittee may, of course, choose instead to
install wastewater treatment or institute other control measures to
reduce the level of the pollutant in its discharge.
C. Consequences of Today's Action
As a result of today's action, States and Tribes need not adopt or
submit to EPA for review a procedure to eliminate or phase-out mixing
zones for BCCs for new and existing discharges to waters within the
Great Lakes Basin. States and Tribes may adopt the mixing zone
elimination and phase-out provisions pursuant to independent State or
Tribal authority. The Agency continues to support eliminating mixing
zones for BCCs within the Great Lakes Basin wherever it is technically
and economically feasible to do so.
States which have language in their regulations or other
implementation documents that parallels the language in the original
Procedure 8.D. would be considered consistent with 40 CFR part 132.
However, to minimize confusion about how a State interprets its
provision, EPA encourages States to issue interpretations of their PMP
procedures to specify whether they interpret those procedures
consistent with EPA's interpretation of Procedure 8.D. and today's
revisions or whether they intend to require internal WQBELs or to
categorically require specific control measures (e.g., source reduction
as a water quality-based requirement) pursuant to independent State
authority as provided for in section 510 of the CWA.
II. ``Good Cause'' Under the Administrative Procedure Act
EPA has determined that it has ``good cause'' under section
553(b)(3) of the Administrative Procedure Act, 5 U.S.C. 553(b)(3), to
promulgate this final rule without prior opportunity for notice and
comment. EPA finds it ``unnecessary'' to provide an opportunity to
comment on the strictly legal issue of the impact of the AISI decision
on the provisions to eliminate and phase-out mixing zones for BCCs in
the March 1995 Guidance or changes to language in Procedure 8.D. to
conform to the Court's decision. Today's rule merely implements the
decision of the Court.
EPA also believes the public interest is best served by reacting to
the Court's decision without further delay. For this reason, EPA has
also determined that it has ``good cause'' under 5 U.S.C. 553(d) to
make the rule effective upon publication.
III. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this final rule is not a ``significant regulatory
action'' and is therefore not subject to OMB review.
IV. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
V. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
whenever a Federal agency promulgates a final rule after being required
to publish a general notice of proposed rulemaking under section 553 of
the Administrative Procedures Act (APA), the agency generally must
prepare a final regulatory flexibility analysis describing the economic
impact of the regulatory action on small entities. EPA has not prepared
a final regulatory flexibility analysis for this action because the
Agency was not required to publish a general notice of proposed
rulemaking for this rule.
As explained above, section 553 of the APA provides that, when an
agency for good cause finds that notice and public procedure are
impracticable, unnecessary and contrary to the public interest, an
agency may first issue a rule without providing notice and an
opportunity for public comment. EPA has determined that there is good
cause for making today's rule final without notice and opportunity for
comment for the reasons spelled out above. In these circumstances, the
RFA does not require preparation of a final regulatory flexibility
analysis. Today's final rule establishes no requirements applicable to
small entities.
VI. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. L
104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under section 202 of UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating a rule for which a written statement is
needed, section 205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provision of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted.
The requirements in section 202 and 205 apply to general notices of
proposed rulemaking and any final rule for which a general notice of
proposed rulemaking was published. For reasons explained previously, a
notice of proposed
[[Page 20110]]
rulemaking was not published in this proceeding. Therefore, sections
202 and 205 do not apply to EPA's action here.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including tribal
governments, it must have developed under section 203 of UMRA a small
government agency plan. The plan must provide for notifying potentially
affected small governments, enabling officials of affected small
governments to have meaningful and timely input in the development of
EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements. EPA has determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments. As explained above, today's rule
withdrawals provisions and therefore, does not contain any regulatory
requirements. Thus this rule is not subject to the requirements of
section 203 of UMRA.
VII. Executive Order 12875
For the same reasons as stated above in section VI., EPA has
determined this final rule does not impose federal mandates on State,
local or Tribal governments. Therefore this rule is not subject to the
provisions E.O. 12875.
Nonetheless, in compliance with Executive Order 12875, Enhancing
the Intergovernmental Partnership, EPA has extensively involved Great
Lakes State, Tribal and local governments in the development of the
1995 Guidance. The rulemaking which promulgated the Guidance in 1995
was subject to Executive Order 12875. The process used to develop the
Guidance marked the first time that EPA had developed a major
rulemaking effort in the water program through a regional public forum.
The public process which lasted over a seven year period and involved
Great Lakes States, EPA, and other Federal agencies in open dialogue
with citizens, Tribal and local governments, and industry in the Great
Lakes Basin is described further in the preamble to the final Guidance.
See 56 FR 15383-15384 (March 23, 1995).
As described above, this action by EPA merely conforms the
regulations to the Court order in AISI and therefore, does not create
any federal mandates.
VIII. Paperwork Reduction Act
This action includes no information collection activities subject
to the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) Therefore, no
Information Collection Request is required to be prepared or submitted
to OMB for approval.
IX. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), the Agency is required to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office and Management and Budget, an explanation
of the reasons for not using such standards.
This final rule does not prescribe any technical standards, so we
have determined that the NTTAA requirements are not applicable.
List of Subjects in 40 CFR Part 132
Environmental protection, Administrative practice and procedure,
Great Lakes, Indians-lands, Intergovernmental relations, Reporting and
recordkeeping requirements, Water pollution control.
Dated: April 14, 1998.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble Title 40, Chapter I of the
Code of Federal Regulations is to be amended as follows:
PART 132--WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM
1. The authority citation for part 132 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
2. Procedure 3 of Appendix F to part 132 is amended by removing
Procedure 3.C.
3. Procedure 8 of Appendix F to part 132 is amended by revising in
the introductory text of 8.D. the second sentence and the third
sentence; by revising paragraph 8.D.3; by revising paragraph 8.D.4; and
by revising paragraph 8.D.5.c. to read as follows:
Procedure 8: Water Quality-based Effluent Limitations Below the
Quantification Level
* * * * *
D. Pollutant Minimization Program. * * * The goal of the
pollutant minimization program shall be to maintain the effluent at
or below the WQBEL. In addition, States and Tribes may consider
cost-effectiveness when evaluating the requirements of a PMP. * * *
1. * * *
2. * * *
3. Submittal of a control strategy designed to proceed toward
the goal of maintaining the effluent below the WQBEL;
4. Implementation of appropriate, cost-effective control
measures consistent with the control strategy; and
5. * * *
a. * * *
b. * * *
c. A summary of all action undertaken pursuant to the control
strategy.
6. * * *
* * * * *
[FR Doc. 98-10717 Filed 4-22-98; 8:45 am]
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