[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Notices]
[Pages 33141-33142]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13887]



[[Page 33141]]

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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7507-2]


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 Commonwealth of Pennsylvania

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Notice is hereby given of approval of submissions by the 
Commonwealth of Pennsylvania 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 June 3, 2003.

FOR FURTHER INFORMATION CONTACT: Denise Hakowski, U.S. EPA, Region 3, 
1650 Arch Street, Philadelphia, PA 19103, or telephone her at (215) 
814-5726. Copies of materials considered by EPA in its decision are 
available for review by appointment at U.S. EPA, Region 3, 1650 Arch 
Street, Philadelphia, PA 19103. Appointments may be made by calling Ms. 
Hakowski.

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 contained 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.
    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.
    The Commonwealth of Pennsylvania's regulation banning mixing zones 
for BCCs is found at 25 Pa. Code Chapter 93, section 93.8a. It was 
adopted on September 17, 2002, and the revisions were published in the 
Pennsylvania Bulletin on December 14, 2002. The Department of 
Environmental Protection's Office of Chief Counsel certified on January 
23, 2003, that these regulatory changes were adopted pursuant to the 
Commonwealth's legal procedures, and that the Office of Attorney 
General and the Governor's Office of General Counsel have also approved 
the final regulatory changes for form and legality. In accordance with 
section 303(c)(2)(A) of the Clean Water Act (CWA) and 40 CFR 131.20(c), 
the Pennsylvania Department of Environmental Protection (PADEP) 
forwarded the amended regulation to the U.S. Environmental Protection 
Agency on February 7, 2003, and we received it on February 19, 2003.
    EPA has conducted its review of Pennsylvania's submission to 
prohibit mixing zones for BCCs in the Great Lakes System 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 the Commonwealth's 
standards, policies and procedures, as well as any additional 
information provided by Pennsylvania clarifying how it interprets or 
will implement its provisions.
    In this proceeding, EPA has reviewed the Pennsylvania's submission 
to determine its 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

[[Page 33142]]

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.
    With regard to the element of the Commonwealth's regulation 
submitted for EPA approval, EPA is approving this provision as a 
revision to the Commonwealth's water quality standards under section 
303 of the CWA. EPA is also approving this submission under section 118 
of the CWA. Additional explanations of EPA's review of and conclusions 
regarding this action are contained in the administrative record for 
today's actions. EPA is taking no action at this time with respect to 
other revisions a State may have made to its NPDES program or water 
quality standards in areas not addressed by the Guidance or applicable 
outside of the Great Lakes System.

    Dated: May 20, 2003.
Donald S. Welsh,
Regional Administrator, Region 3.
[FR Doc. 03-13887 Filed 6-2-03; 8:45 am]
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