[Federal Register Volume 63, Number 140 (Wednesday, July 22, 1998)]
[Rules and Regulations]
[Pages 39440-39443]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19514]



[[Page 39439]]

_______________________________________________________________________

Part IV





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 455



Amendments to the Effluent Limitations Guidelines, Pretreatment 
Standards, and New Source Performance Standards for the Organic 
Pesticide Chemicals Manufacturing Industry--Pesticide Chemicals Point 
Source Category; Direct Final Rule and Proposed Rule

  Federal Register / Vol. 63, No. 140 / Wednesday, July 22, 1998 / 
Rules and Regulations  

[[Page 39440]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 455

[FRL-6126-6]


Amendments to the Effluent Limitations Guidelines, Pretreatment 
Standards, and New Source Performance Standards for the Organic 
Pesticide Chemicals Manufacturing Industry--Pesticide Chemicals Point 
Source Category

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is promulgating amendments to regulations that limit the 
discharge of pollutants into navigable waters of the United States and 
into publicly owned treatment works (POTWs) by existing and new sources 
that manufacture pesticide active ingredients (PAIs). Today's 
amendments only affect new and existing facilities that manufacture the 
PAI pendimethalin. These amendments are based on additional effluent 
monitoring data submitted to the Agency by the sole existing 
pendimethalin manufacturer, the American Cyanamid Company.

DATES: This direct final rule is effective without further notice on 
October 20, 1998 unless EPA receives relevant adverse comment by 
September 21, 1998. If relevant adverse comment is received, EPA will 
publish a timely withdrawal of the direct final rule in the Federal 
Register and inform the public that the rule will not take effect.

ADDRESSES: Send comments in triplicate to Ms. Shari H. Zuskin, Office 
of Water, Engineering and Analysis Division (4303), U.S. Environmental 
Protection Agency, 401 M Street, SW, Washington DC 20460. Comments may 
also be sent via e-mail to: [email protected]. Electronic 
comments must be submitted in ACSII file avoiding the use of special 
characters and any form of encryption. Electronic comments will also be 
accepted in WordPerfect 5.1 or 6.1 file format. No Confidential 
Business Information (CBI) should be submitted through e-mail.

FOR FURTHER INFORMATION CONTACT: Ms. Shari H. Zuskin at (202) 260-7130 
or via e-mail at: [email protected].

SUPPLEMENTARY INFORMATION:

Regulated Entities

    Entities potentially regulated by this action are existing or new 
sources which generate process wastewater from the manufacture of the 
pesticide active ingredient Pendimethalin. Regulated categories and 
entities include:

------------------------------------------------------------------------
                                                Examples of regulated   
                 Category                             Entities          
------------------------------------------------------------------------
Industry..................................   Existing or New    
                                             Pesticide Manufacturers of 
                                             Pendimethalin.             
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be regulated by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be regulated by this action. Other types of entities 
not listed in the table could also be regulated. To determine whether 
your facility is regulated by this action, you should carefully examine 
the applicability criteria in Sec. 455.20 of the final rule, published 
in the Federal Register on September 28, 1993 [58 FR 50869]. If you 
have questions regarding the applicability of this action to a 
particular entity, consult the person listed in the preceding FOR 
FURTHER INFORMATION CONTACT section.

Overview

    This preamble describes the legal authority of this direct final 
rule, background information on the final pesticide chemicals 
manufacturing industry effluent limitations guidelines and standards 
(58 FR 50638; September 28, 1993), the amendments to the September 1993 
final rule, and the application of the technical and economic 
methodologies developed for the final rule to the development of these 
amendments.
    Abbreviations, acronyms, and other terms used in this preamble are 
defined in Appendix A of the preamble to the final pesticide chemicals 
manufacturing effluent limitations guidelines and standards (58 FR 
50638; September 28, 1993).

I. Legal Authority
II. Background
    A. Development of Final Pesticide Chemicals Manufacturing 
Guidelines
    B. American Cyanamid Petition for Review
III. Amendments to the Final Pesticide Chemicals Manufacturing 
Guidelines
IV. Environmental Impact of the Amendments
V. Economic Impact of the Amendments
VI. Promulgation as a Direct Final Rule
VII. Related Acts of Congress and Executive Orders
    A. Executive Order 12866
    B. Unfunded Mandates Reform Act (UMRA)
    C. Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Act of 1996 (SBREFA)
    D. Congressional Review Act
    E. Paperwork Reduction Act
    F. Executive Order 13045
    G. National Technology Transfer and Advancement Act

I. Legal Authority

    These amendments are being promulgated to revise the effluent 
guidelines and standards of performance for the Organic Pesticide 
Chemicals Subcategory of the Pesticide Chemicals Point Source Category 
under the authorities of Sections 301, 304, 306, 307, and 501 of the 
Clean Water Act, also referred to as ``the Act.''

II. Background

A. Development of Final Pesticide Chemicals Manufacturing Guidelines

    A full discussion of the development of the final pesticide 
chemicals manufacturing effluent limitations guidelines and standards 
is presented in the preamble to the final rule (58 FR 50638; September 
28, 1993). To summarize, on April 10, 1992, (57 FR 12560) EPA proposed 
new effluent limitations guidelines and standards for new and existing 
facilities that manufacture pesticide active ingredients (PAIs). The 
PAI-specific numeric limitations were based, wherever possible, on 
actual industry monitoring data of the effluent concentrations of PAIs 
in wastewaters treated by full-scale treatment systems considered to be 
best available technology economically achievable (BAT). Where actual 
full-scale data were not available, the final BAT limitations were 
based on a transfer of treatment system performance data between 
structurally similar PAIs, supported by data from EPA or industry 
bench-scale treatability studies. In some cases, the final BAT 
limitations may require that existing PAI treatment technologies be 
improved by enhanced operations, such as: hydrolysis with increased 
retention time; carbon adsorption with increased retention time; and 
additional PAI monitoring. After incorporating new data submittals 
(mostly additional long-term treatment system performance data), as 
discussed in a Notice of Data Availability (NOA) (58 FR 19392; April 
14, 1993), EPA promulgated final regulations for the pesticide 
chemicals manufacturing industry on September 28, 1993.

B. American Cyanamid Petition for Review

    As part of the 1993 promulgated effluent limitations guidelines and 
standards, numerical limitations were included based on incineration as 
the BAT technology for pendimethalin and two other PAIs (terbufos and 
phorate)

[[Page 39441]]

manufactured by American Cyanamid. American Cyanamid incinerates 
wastewater and other waste generated during the manufacture of these 
three PAIs, and discharges incinerator scrubber blowdown from their 
facility. The proposed numerical limitations for these three PAIs were 
calculated using data provided to EPA by American Cyanamid, including 
annual production data, the number of annual production days, and daily 
flow rate and effluent monitoring data for pendimethalin, terbufos, and 
phorate.
    In their comments on the proposed rule, American Cyanamid disagreed 
with EPA on the technical details of how the numerical limitations were 
developed for pendimethalin, terbufos, and phorate. For pendimethalin, 
American Cyanamid commented that EPA had only included data from one of 
their two incinerators used to treat wastewaters containing 
pendimethalin. American Cyanamid's other comments, concerning all three 
PAIs, focused primarily on the calculation and use of long-term flow 
rates and PAI loadings in the incinerator scrubber blowdown streams. 
EPA recalculated the limitations for pendimethalin, phorate, and 
terbufos based on American Cyanamid's comments, and presented the 
revised limitations in the April 14, 1993, NOA. American Cyanamid did 
not comment on the phorate and terbufos limitations presented in the 
NOA, but did comment on the pendimethalin limitations. The comments 
related to pendimethalin questioned whether certain daily loadings in 
their effluent monitoring database should have been used to calculate 
the pendimethalin limitations based on the incinerator flow rate data 
available on those days. EPA took these comments into account when 
calculating the final pendimethalin limitations, which were promulgated 
on September 28, 1993.
    In February 1994, American Cyanamid filed a petition for review of 
the final effluent limitations guidelines and standards (American 
Cyanamid Company v. U.S. Environmental Protection Agency, No. 94-1367 
(8th Cir.)). Among other things, American Cyanamid disagreed with the 
statistical approach EPA used in the final rule to calculate mass-based 
limitations using the daily mass loading, flow rate, and production 
data available for pendimethalin. After filing its petition, American 
Cyanamid also provided EPA with some additional long-term monitoring 
data for the company's pendimethalin incineration operations. Although 
EPA has not changed its statistical approach for deriving the 
limitations, the Agency has evaluated the new monitoring data submitted 
by American Cyanamid and has agreed, through today's rule amendments, 
to revise the limitations for pendimethalin based on these new data. 
EPA and American Cyanamid also agreed on an approach for determining 
which daily monitoring data EPA should use to calculate today's revised 
pendimethalin limitations. Specifically, EPA used monitoring data for 
only those days when both flow rate and PAI concentration data 
(specifically pendimethalin data) were available for both operating 
incinerators. American Cyanamid has agreed that it will terminate its 
petition for review of the final regulations in light of the new 
pendimethalin limits that EPA is promulgating today as well as an 
additional letter that EPA has sent to the company clarifying the 
operation of these regulations.

III. Amendments to the Final Pesticide Chemicals Manufacturing 
Guidelines

    The amendments change the daily maximum and monthly average 
effluent limitations for pendimethalin listed for new and existing 
direct and indirect discharges. Table 2 to Part 455 lists the ``Organic 
Pesticide Active Ingredient Effluent Limitations Best Available 
Technology Economically Achievable (BAT) and Pretreatment Standards for 
Existing Sources (PSES).'' Table 3 to Part 455 lists the ``Organic 
Pesticide Active Ingredient New Source Performance Standards (NSPS) and 
Pretreatment Standards for New Sources (PSNS).''
    EPA has revised the daily maximum effluent limitation for 
pendimethalin from the current limit of 1.17  x  10-2 pounds 
pendimethalin pollutant/1,000 pounds pendimethalin product to a new 
limit of 1.30  x  10-2 pounds pendimethalin pollutant/1,000 
pounds pendimethalin product.
    EPA has also revised the monthly average effluent limitation for 
pendimethalin from the current limit of 3.62  x  10-3 pounds 
pendimethalin pollutant/1,000 pounds pendimethalin product to a new 
limit of 3.99  x  10-3 pounds pendimethalin pollutant/1,000 
pounds pendimethalin product.

IV. Environmental Impact of the Amendments

    The previously promulgated pendimethalin limitations are being 
amended in today's notice based on additional incinerator operating 
data provided to EPA by American Cyanamid. EPA modified the long-term 
monitoring database used to calculate the previously promulgated 
pendimethalin limitations with these operating data. EPA believes that 
the long-term monitoring database supporting today's revised 
limitations represents an accurate indication of incinerator 
performance and achievable pendimethalin discharge loadings. The 
amended limitations represent relatively small increases in the 
allowable pendimethalin discharge loadings. Therefore, these amendments 
are not expected to significantly impact the pendimethalin loadings 
currently discharged from the incinerators. As noted, there is only one 
existing manufacturer of pendimethalin. For these reasons, the revised 
limitations are not expected to significantly affect the environmental 
impact analysis that was issued at the time the final rule was 
promulgated.

V. Economic Impact of the Amendments

    These amendments to the previously promulgated limitations do not 
alter the BAT treatment technology for pendimethalin. The Agency 
considered the economic impact of the regulation when the limitations 
were promulgated in 1993, and concluded at that time that the 
pendimethalin limitations were economically achievable. Because the 
amendments are based on the same BAT technology and level of operation 
for which costs were developed at promulgation, the economic impact is 
not expected to be significantly changed.

VI. Promulgation as a Direct Final Rule

    EPA is promulgating these changes to the Part 455 limitations for 
pendimethalin as a ``direct final'' rule because the Agency believes 
they are noncontroversial. We do not expect any relevant adverse 
comments on these rule changes. Nevertheless, since it is possible that 
there are such interested parties, EPA is providing an opportunity for 
the public to submit comments on today's rule. Specifically, EPA is 
issuing a separate, parallel proposal elsewhere in today's Federal 
Register that references the rule changes set forth in this direct 
final rule.
    If EPA receives relevant adverse comments on the rule by the close 
of the 60-day comment period, it will publish a document in the Federal 
Register that withdraws this direct final rule in a timely manner. The 
Agency will then address the public comments in a later final rule that 
is based on today's proposed rule. Note that EPA will not provide for a 
second comment period on this action. Any parties interested in 
commenting on this action must do so at this time.

[[Page 39442]]

    If, as expected, EPA does not receive relevant adverse comment on 
the rule, then this direct final rule will become effective on the 
effective date noted above, without further notice.

VII. Related Acts of Congress and Executive Orders

A. Executive Order 12866

    Under Executive Order 12866, (58 FR 51,735 (October 4, 1993)) the 
Agency must determine whether this regulatory action is ``significant'' 
and therefore subject to 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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

B. Unfunded Mandates Reform Act (UMRA)

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.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 the 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 an EPA rule for which a written statement 
is needed, section 205 of the 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 provisions 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. 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 the 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 does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Again, today's amendments do not significantly 
alter the pendimethalin numerical limitations and, in fact, simply 
relax these limitations slightly. Therefore, there is no additional 
compliance cost associated with today's amendments. Thus, today's final 
rule is not subject to the requirements of Sections 202 and 205 of the 
UMRA. In addition, today's amendments do not add any additional 
requirements/mandates on State, local and/or tribal governments beyond 
those of the final regulation promulgated in 1993. Currently there is 
only one State government that would have to revise the permit for one 
facility based on the amendments being promulgated today. This State 
government has already been notified. Therefore, EPA has determined 
that this rule contains no regulatory requirements that might 
significantly or uniquely affect small governments.

C. Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA)

    Under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act, 
EPA generally is required to conduct a regulatory flexibility analysis 
describing the impact of the regulatory action on small entities as 
part of the rulemaking. However, under section 605(b) of the RFA, if 
EPA certifies that the rule will not have a significant economic impact 
on a substantial number of small entities, EPA is not required to 
prepare an RFA. Pursuant to section 605(b) of the Regulatory 
Flexibility Act, 5 U.S.C. 605(b), the Administrator certifies that the 
final rule will not have a significant economic impact on a substantial 
number of small entities.
    As discussed earlier in this notice, there are no added costs to 
the regulated community associated with compliance with this final 
rule. The rule simply replaces the current effluent limitations and 
standards for one pesticide active ingredient, pendimethalin, with less 
stringent limitations and standards. In these circumstances, there will 
obviously be no increase in the cost of compliance with the 
requirements. Further, there is only one pesticide manufacturer of 
pendimethalin in this subcategory and the manufacturer is not a small 
entity, as defined by the Small Business Administration (SBA) 
1. Consequently, today's change will not have a significant 
economic impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \1\ SBA defines a small business in the Pesticide Chemicals 
Manufacturing Industry as an entity with less than 500 firm 
employees.
---------------------------------------------------------------------------

D. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit 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 United States prior 
to publication of the rule in the Federal Register. This rule is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

E. Paperwork Reduction Act

    There are no information collection requirements in today's final 
rule.

F. Executive Order 13045

    The Executive Order, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that EPA determines (1) ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria,

[[Page 39443]]

the Agency must evaluate the environmental health or safety effects of 
the planned rule on children; and explain why the planned regulation is 
preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    EPA interprets the E.O. 13045 as encompassing only those regulatory 
actions that are risk based or health based, such that the analysis 
required under section 5-501 of the E.O. has the potential to influence 
the regulation. This rule is not subject to E.O. 13045 because it does 
not involve decisions regarding environmental health or safety risks.

G. 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 of Management and Budget, an explanation 
of the reasons for not using such standards.
    There are no specified and/or otherwise affected analytical methods 
in today's amendments.

List of Subjects in 40 CFR Part 455

    Environmental protection, Pesticide chemicals manufacturing, Water 
treatment and disposal, Water pollution control.

    Dated: July 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 amended as follows:

PART 455--[ AMENDED]

    1. The authority citation for part 455 continues to read as 
follows:

    Authority: Sections 301, 304, 306, 307, and 501 Pub. L. 92-500, 
86 Stat, 816, Pub. L. 95-217, 91 Stat. 156, and Pub. L. 100-4, 101 
Stat. 7 (33 U.S.C. 1311, 1314, 1316, 1317, and 1361).

    2. In Table 2 to Part 455 the entry for pendimethalin is revised to 
read as follows:

    Table 2 To Part 455.--Organic Pesticide Active Ingredient Effluent Limitations Best Available Technology    
              Economically Achievable (BAT) and Pretreatment Standards for Existing Sources (PSES)              
----------------------------------------------------------------------------------------------------------------
                                      kg/kkg (lb/1,000 lb) pounds of pollutant per 1000                         
                                                        lbs.  product                                           
              Pesticide              ---------------------------------------------------          Notes         
                                       Daily maximum shall not   Monthly average shall                          
                                               exceed                  not exceed                               
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                *                  *                *                *                *                *       
                                                            *                                                   
Pendimethalin.......................  1.30 x 10 -\2\            3.99 x 10 -\3\                                  
                                                                                                                
*                *                  *                *                *                *                *       
                                                            *                                                   
----------------------------------------------------------------------------------------------------------------

* * * * *
    3. In Table 3 to part 455 the entry for pendimethalin is revised to 
read as follows:

      Table 3 To Part 455.--Organic Pesticide Active Ingredient New Source Performance Standards (NSPS) and     
                                  Pretreatment Standards for New Sources (PSNS)                                 
----------------------------------------------------------------------------------------------------------------
                                      kg/kkg (lb/1,000 lb) pounds of pollutant per 1000                         
                                                        lbs.  product                                           
              Pesticide              ---------------------------------------------------          Notes         
                                       Daily maximum shall not   Monthly average shall                          
                                               exceed                  not exceed                               
----------------------------------------------------------------------------------------------------------------
                                                                                                                
*                *                  *                *                *                *                *       
                                                            *                                                   
Pendimethalin.......................  1.30 x 10 -\2\            3.99 x 10 -\3\                                  
                                                                                                                
*                *                  *                *                *                *                *       
                                                            *                                                   
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[FR Doc. 98-19514 Filed 7-21-98; 8:45 am]
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