[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     
------------------------------------------------------------------------
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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