[Federal Register Volume 68, Number 156 (Wednesday, August 13, 2003)]
[Notices]
[Pages 48384-48385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-20527]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7543-4]


Notice of Approval of Submission 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 State of New York

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: Notice is hereby given of approval of the submission by the 
State of New York 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 August 13, 2003.

FOR FURTHER INFORMATION CONTACT: Wayne Jackson, U.S. EPA, Region 2, 290 
Broadway, New York, NY, or telephone him at (212) 637-3807. Copies of 
materials considered by EPA in its decision are available for review by 
appointment at U.S. EPA Region 2, 290 Broadway, New York, NY. 
Appointments may be made by calling Mr. Jackson.

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.
    New York's regulations banning for mixing zones for BCCs are found 
at 6NYCRR Part 750 State Pollutant Discharge Elimination System (SPDES) 
Permits, Subparts 750-1.11(a)(5)(i) and 750-1.11(a)(5)(ii), 
``Application of standards, limitations and other requirements.'' They 
were adopted on February 11, 2003, and the revisions were filed with 
the New York State Department of State on April 11, 2003, and became 
effective on May 11, 2003. In accordance with Section 303(c)(2)(A) of 
the Clean Water Act (CWA) and 40 CFR 131.20(c), the New York State 
Department of Environmental Conservation (NYSDEC) forwarded the amended 
regulation to the U.S. Environmental Protection Agency (EPA)

[[Page 48385]]

on June 6, 2003, and we received it on June 6, 2003.
    EPA has conducted its review of New York'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 State's 
standards, policies and procedures, as well as any additional 
information provided by New York clarifying how it interprets or will 
implement its provisions.
    In this proceeding, EPA has reviewed New York'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 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 State's regulation submitted for 
EPA approval, EPA is approving this provision as a revision to the 
State's water quality standards under Section 303 of the CWA. EPA is 
also approving this submission under Section 118 of the CWA. EPA's 
approval is based on the fact that the State regulations require that 
the provisions of each issued SPDES permit ensure compliance with the 
requirements of 40 CFR part 132. The State's submission satisfies the 
requirements of part 132 by directly incorporating these requirements 
into the State regulations by reference. While New York does not 
explicitly require wasteload allocations (WLAs) in total maximum daily 
loads (TMDLs) to be consistent with part 132, the State does require 
that all water quality-based effluent limitations (WQBELs) must comply 
with the BCC mixing zone ban by operation of the new SPDES regulation 
at 750-1.11(a)(5)(i), regardless of what the TMDL says. This is 
sufficient for EPA approval because, under EPA's regulations at 40 CFR 
.122.44(d)(1)(vii), WQBELs must always be based on whichever is more 
stringent: (A) limitations that are derived from and comply with water 
quality standards (in this case, the BCC mixing zone ban); or (B) 
limitations that are consistent with the requirements and assumptions 
of an approved TMDL. By requiring limitations ``necessary to meet water 
quality standards, guidance values, effluent limitations or schedules 
of compliance established pursuant to any state law or regulation 
consistent with Section 510 of the Act, or the requirements of 40 CFR 
part 132 (see section 750-1.24 of this part),'' the state ensures that 
water quality-based effluent limitations will comply with the BCC 
mixing zone ban. In addition, EPA expects that TMDLs for BCCs will be 
consistent with the BCC mixing zone ban because this requirement is 
part of the state's water quaity standards, and all TMDLs must be 
calculated at levels necessary to implement the applicable water 
quality standards. EPA is taking no action at this time with respect to 
other revisions that New York 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.

William Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 03-20527 Filed 8-12-03; 8:45 am]
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