[Federal Register Volume 68, Number 95 (Friday, May 16, 2003)]
[Notices]
[Pages 26616-26618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-12356]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7498-9]


Notice of Approval of Submissions To Prohibit Mixing Zones for 
Bioaccumulative Chemicals of Concern Pursuant to Section 118 of the 
Clean Water Act and the Water Quality Guidance for the Great Lakes 
System for the States of Illinois, Indiana, Michigan, Minnesota, Ohio 
and Wisconsin

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Notice is hereby given of approval of submissions by the 
States of Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin to 
prohibit mixing zones for bioaccumulative chemicals of concern (BCCs) 
in the Great Lakes System pursuant to section 118(c) of the Clean Water 
Act and the Water Quality Guidance for the Great Lakes System, as 
amended.

DATES: EPA's approval is effective on May 16, 2003.

FOR FURTHER INFORMATION CONTACT: Mery Jackson-Willis, U.S. EPA, Region 
5, 77 West Jackson Blvd., Chicago, IL 60604, or telephone her at (312) 
353-3717. Copies of materials considered by EPA in its decision are 
available for review by appointment at U.S. EPA Region 5, 77 West 
Jackson Blvd, Chicago, IL 60604. Appointments may be made by calling 
Ms. Jackson-Willis.

SUPPLEMENTARY INFORMATION: On March 23, 1995, EPA published the Final 
Water Quality Guidance for the Great Lakes System (Guidance). See 60 FR 
15366. The 1995 Guidance established minimum water quality standards, 
antidegradation policies, and implementation procedures for the waters 
of the Great Lakes System in the States of Illinois, Indiana, Michigan, 
Minnesota, New York, Ohio, Pennsylvania and Wisconsin. Specifically, 
the 1995 Guidance specified numeric criteria for selected pollutants to 
protect aquatic life, wildlife and human health within the Great Lakes 
System and provided methodologies to derive numeric criteria for 
additional pollutants discharged to these waters. The 1995 Guidance 
also included minimum implementation procedures and an antidegradation 
policy.
    The 1995 Guidance, which was codified at 40 CFR part 132, required 
the Great Lakes States to adopt and submit to EPA for approval water 
quality criteria, methodologies, policies and procedures that are 
consistent with the Guidance. 40 CFR 132.4 & 132.5. EPA is required to 
approve of the State's submission within 90 days or notify the State 
that EPA has determined that all or part of the submission is 
inconsistent with the Clean Water Act (CWA) or the Guidance and 
identify any necessary changes to obtain EPA approval. If the State 
fails to make the necessary changes within 90 days after the 
notification, EPA must publish a notice in the Federal Register 
identifying the approved and disapproved elements of the submission and 
a final rule identifying the provisions of part 132 that shall apply 
for discharges within the State.

[[Page 26617]]

    Soon after being published, the Guidance was challenged in the U.S. 
Court of Appeals for the District of Columbia Circuit. On June 6, 1997, 
the Court issued a decision upholding virtually all of the provisions 
contained in the 1995 Guidance (American Iron and Steel Institute, et 
al. v. EPA, 115 F.3d 979 (D.C. Cir. 1997)); however, the Court vacated 
the provisions of the Guidance that would have eliminated mixing zones 
for BCCs (115 F.3d at 985). The Court held that EPA had ``failed to 
address whether the measure is cost-justified,'' and remanded the 
provision to EPA for an opportunity to address this issue (115 F.3d at 
997). In response to the Court's remand, EPA reexamined the factual 
record, including its cost analyses, and published the Proposal to 
Amend the Final Water Quality Guidance for the Great Lakes System to 
Prohibit Mixing Zones for Bioaccumulative Chemicals of Concern in the 
Federal Register on October 4, 1999 (64 FR 53632). EPA received 
numerous comments, data, and information from commenters in response to 
the proposal.
    After reviewing and analyzing the information in the rulemaking 
record, including those comments, on November 13, 2000, EPA published 
the final rule amending the Final Water Quality Guidance for the Great 
Lakes System to Prohibit Mixing Zones for Bioaccumulative Chemicals of 
Concern, to be codified in appendix F, procedure 3.C of 40 CFR part 
132. As amended, the Guidance requires that States adopt mixing zone 
provisions that prohibit mixing zones for new discharges of BCCs 
effective immediately upon adoption of the provision by the State, and 
to prohibit mixing zones for existing discharges of BCCs after November 
15, 2010, except where a mixing zone is determined by the State to be 
necessary to support water conservation measures and overall load 
reductions of BCCs or where a mixing zone is determined by the State to 
be necessary for technical or economic reasons. Under the amended 
Guidance, States were given two years to adopt and submit revised water 
quality standards conforming with the amended Guidance.
    EPA has conducted its review of the States' submissions to prohibit 
mixing zones for BCCs in accordance with the requirements of section 
118(c)(2) of the CWA and 40 CFR part 132. Section 118 requires that 
States adopt policies, standards and procedures that are ``consistent 
with'' the Guidance. EPA has interpreted the statutory term 
``consistent with'' to mean ``as protective as'' the corresponding 
requirements of the Guidance. Thus, the Guidance gives States the 
flexibility to adopt requirements that are not the same as the 
Guidance, provided that the State's provisions afford at least as 
stringent a level of environmental protection as that provided by the 
corresponding provision of the Guidance. In making its evaluation, EPA 
has considered the language of each State's standards, policies and 
procedures, as well as any additional information provided by the State 
clarifying how it interprets or will implement its provisions.
    In this proceeding, EPA has reviewed the States' submissions to 
determine their consistency only with respect to appendix F, procedure 
3.C of 40 CFR part 132. EPA has not reopened part 132 in any respect, 
and today's action does not affect, alter or amend in any way the 
substantive provisions of part 132. To the extent any members of the 
public commented during this proceeding that any provision of part 132 
is unjustified as a matter of law, science or policy, those comments 
are outside the scope of this proceeding.
    Today's notice identifies the elements of the States' Great Lakes 
BCC mixing zone provisions that EPA is approving today. Additional 
explanations of EPA's review of and conclusions regarding the States' 
submissions on this issue are contained in the administrative record 
for today's actions in documents prepared for each State.

1. The State of Illinois

    Illinois' regulations for mixing zones for BCCs are found at Title 
35: Environmental Protection, Subtitle C: Water Pollution, Chapter I: 
Pollution Control Board, Part 302: Water Quality Standards, Subpart E: 
Lake Michigan Basin Water Quality Standards, Section 302.530: 
Supplemental Mixing Provisions for Bioaccumulative Chemicals of 
Concern. Illinois adopted its BCC mixing zone provisions at the same 
time it adopted its other Great Lakes water quality standards. 
Illinois' supplemental mixing provisions for BCCs at 302.530 prohibit 
mixing zones for new discharges of BCCs commencing on or after December 
24, 1997, prohibit mixing zones for existing discharges after March 23, 
2007 except where a continued mixing zone is necessary for water 
conservation that will result in an overall reduction in BCC mass 
loadings to the Lake Michigan Basin or where a mixing zone is 
determined to be necessary based on technical or economic grounds. EPA 
reviewed Illinois' rules at 302.503 and determined that they are 
consistent with the requirements of the amended Guidance. EPA therefore 
approves of Illinois' rules at 302.530.

2. The State of Indiana

    Indiana's mixing zone provisions for BCCs are found at 327 IAC 5-2-
11.4(b)(1). Indiana's rules prohibit mixing zones for BCCs for new 
discharges of BCCs and existing and new discharges of BCCs to the open 
waters of Lake Michigan. Mixing zones for existing discharges of BCCs 
to waters other than the open waters of Lake Michigan will be 
prohibited beginning January 1, 2004 with the exceptions allowed under 
the amended Guidance for water conservation measures and technical and 
economic considerations. Indiana adopted its rules prohibiting mixing 
zones at the same time it adopted its original Great Lakes rules. EPA 
reviewed Indiana's rules at 327 IAC 5-2-11.4(b)(1) and determined that 
they are consistent with the requirements of the amended Guidance. EPA 
therefore approves of Indiana's rules at 327 IAC 5-2-11.4(b)(1).

3. The State of Michigan

    Michigan's regulations for mixing zones for BCCs are found at R 
323.1082(6). Michigan adopted its BCC mixing zone provisions at the 
same time it adopted its other Great Lakes water quality standards. 
Michigan's mixing provisions for BCCs at R 323.1082(6) prohibit mixing 
zones for new discharges of BCCs, prohibit mixing zones for existing 
discharges after March 23, 2007 except where a continued mixing zone is 
necessary for water conservation that will result in an overall 
reduction in BCC mass loadings or where a mixing zone is determined to 
be necessary based on technical or economic grounds. EPA reviewed 
Michigan's rules at R 323.1082(6) and determined that they are 
consistent with the requirements of the amended Guidance. EPA therefore 
approves of Michigan's rules at R 323.1082(6).

4. The State of Minnesota

    Minnesota's regulations for mixing zones for BCCs are found at 
7052.0210, subpart 3, of Minnesota's administrative code. Minnesota 
adopted its BCC mixing zone provisions at the same time it adopted its 
other Great Lakes water quality standards. Minnesota's mixing 
provisions for BCCs at 7052.0210, subpart 3 prohibit mixing zones for 
new discharges of BCCs as of March 9, 1998 and for existing discharges 
after March 23, 2007, except where a continued mixing zone is necessary 
for water conservation that will result in an overall reduction in BCC 
mass loadings or where a mixing zone is determined

[[Page 26618]]

to be necessary based on technical or economic grounds. EPA reviewed 
Minnesota's rules at 7052.0210, subpart 3 and determined that they are 
consistent with the requirements of the amended Guidance. EPA therefore 
approves of Minnesota's rules at 7052.0210, subpart 3.

5. The State of Ohio

    Ohio's regulations for mixing zones for BCCs are found at OAC 3745-
2-05 and 3745-2-08. Ohio's rules for mixing zones for BCCs were adopted 
on August 30, 2002, and became effective on December 30, 2002. Ohio's 
mixing provisions for BCCs at OAC 3745-2-05 prohibit mixing zones for 
new discharges of BCCs as of the effective date of the rule, December 
30, 2002, and for existing discharges after November 15, 2010, except 
where a continued mixing zone is necessary for water conservation that 
will result in an overall reduction in BCC mass loadings or where a 
mixing zone is determined to be necessary based on technical or 
economic grounds. EPA reviewed Ohio's rules at OAC 3745-2-05 and 3745-
2-08 and determined that they are consistent with the requirements of 
the amended Guidance. EPA therefore approves of Ohio's rules at OAC 
3745-2-05 and 3745-2-08.

6. The State of Wisconsin

    Wisconsin's regulations for mixing zones for BCCs are found at NR 
106.06(2). Wisconsin's rules for mixing zones for BCCs were adopted at 
the same time as Wisconsin adopted its other Great Lakes rules. 
Wisconsin's mixing provisions for BCCs at NR 106.06(2) prohibit mixing 
zones for new discharges of BCCs as of March 23, 1997. Wisconsin's 
rules do not address mixing zones for BCCs for existing discharges, 
except to state in a note included within Wisconsin's rules at NR 
106.06(2) that Wisconsin is aware of the requirement to prohibit mixing 
zones for BCCs for existing discharges and will adopt rules prohibiting 
mixing zones for BCCs for existing discharges prior to the effective 
date of the prohibition. EPA reviewed Wisconsin's rules at NR 106.06(2) 
and determined that they are consistent with the requirements of the 
amended Guidance that have immediate force and effect. EPA therefore 
approves of Wisconsin's rules at NR 106.06(2). EPA will review the 
rules to be developed by Wisconsin to implement the mixing zone 
prohibition for BCCs for existing Great Lakes dischargers when they are 
developed and submitted to EPA. If Wisconsin fails to adopt and submit 
to EPA rules to ensure that the prohibition takes effect in Wisconsin 
on or before November 15, 2010, EPA will take the necessary actions to 
ensure that mixing zones are prohibited for existing discharges of BCCs 
for waters of the Great Lakes System in the State of Wisconsin by that 
date.

David A. Ullrich,
Acting Regional Administrator, Region 5.
[FR Doc. 03-12356 Filed 5-15-03; 8:45 am]
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