[Federal Register Volume 68, Number 202 (Monday, October 20, 2003)]
[Proposed Rules]
[Pages 59894-59905]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26409]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-7576-2]


Water Quality Standards for Puerto Rico

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is proposing to 
establish designated uses and associated water quality criteria for six 
waterbodies and an area of coastal waters known as the coastal ring in 
the Commonwealth of Puerto Rico. These waterbodies are: Mayaguez Bay 
(from Punta Guanajibo to Punta Algarrobo); Yabucoa Port; Guayanilla and 
Tallaboa Bays (from Cayo Parguera to Punta Verraco); Ponce Port (from 
Punta Carenero to Punta Cuchara) and San Juan Port (from the mouth of 
R[iacute]o Bayam[oacute]n to Punta El Morro), as well as the area of 
coastal waters known as the coastal ring, defined as all coastal waters 
from 500 meters seaward to a maximum of three miles seaward. If this 
proposal is promulgated, the Federally designated use of primary 
contact recreation and the associated water quality criteria will be 
added to the Commonwealth's designated use for the above-referenced 
embayments and the coastal ring (referred to collectively below as the 
``Subject Waterbodies'').

DATES: EPA will accept public comments on this proposed rule until 
November 19, 2003. A public hearing will be held on November 6, 2003, 
from 2 p.m. to 5 p.m. and from 7 p.m. to 9 p.m. Both oral and written 
comments will be accepted at the hearing.

ADDRESSES: Comments may be submitted by mail to Docket Manager, 
Proposed Water Quality Standards for Puerto Rico, U.S. EPA Region 2, 
290 Broadway, New York, New York 10007, Attention Docket ID No. OW-
2003-0072. Comments may also be submitted electronically or through 
hand delivery/courier. Follow the detailed instructions as provided in 
Section I.C. of the SUPPLEMENTARY INFORMATION section. The public 
hearing will occur at the Universidad Metropolitana (UMET) Theatre, 
Ave. Ana G. Mendez, Km 0.3, Cupey, Puerto Rico 00928.

FOR FURTHER INFORMATION CONTACT: Wayne Jackson, U.S. EPA Region 2, 
Division of Environmental Planning and Protection, 290 Broadway, New 
York, New York 10007 (telephone: 212-637-3807 or e-mail: 
[email protected]) or Claudia Fabiano, U.S. EPA Headquarters, 
Office of Science and Technology, 1200 Pennsylvania, Avenue NW., Mail 
Code 4305T, Washington, DC 20460 (telephone: 202-566-0446 or e-mail: 
[email protected]).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
    A. Who is Potentially Affected by this Rule?
    B. How Can I Get Copies of This Document and Other Related 
Information?
    1. Docket
    2. Electronic Access
    C. How and to Whom Do I Submit Comments?
    1. Electronically
    2. By Mail
    3. By Hand Delivery or Courier
    D. What Should I Consider as I Prepare My Comments for EPA?
II. Background
    A. Statutory and Regulatory Background
    B. Current Puerto Rico Water Quality Standards
    C. Factual Background
    1. Summary of Commonwealth and EPA Administrative Actions
    2. Summary of Legal Actions
III. Use Designations and Criteria for Waters Currently Designated 
as Class SC
    A. Proposed Use Designations and Criteria for the Subject 
Waterbodies
    B. Request for Comment and Data
IV. Alternative Regulatory Approaches and Implementation Mechanisms
    A. Designating Uses
    B. Site-Specific Criteria
    C. Variances
V. Economic Analysis
    A. Identifying Affected Facilities
    B. Method for Estimating Potential Compliance Costs
    C. Results
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions that Significantly Affect 
Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act

I. General Information

A. Who Is Potentially Affected by This Rule?

    Citizens concerned with water quality in Puerto Rico may be 
interested in this rulemaking. Facilities discharging pollutants to 
certain waters of the United States in Puerto Rico could be indirectly 
affected by this rulemaking since water quality standards are used in 
determining water quality-based National Pollutant Discharge 
Elimination System (NPDES) permit limits. Categories and entities that 
may indirectly be affected include:

[[Page 59895]]



------------------------------------------------------------------------
                                               Examples of potentially
                 Category                        regulated entities
------------------------------------------------------------------------
Industry..................................  Industries discharging
                                             pollutants to the waters
                                             identified in Sec.
                                             131.40.
Municipalities............................  Publicly-owned treatment
                                             works discharging
                                             pollutants to the waters
                                             identified in Sec.
                                             131.40.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. 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 action, you should carefully 
examine the water bodies identified in Sec.  131.40 of today's proposed 
rule. If you have questions regarding the applicability of this action 
to a particular entity, consult one of the persons listed in the 
preceding FOR FURTHER INFORMATION CONTACT section.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2003-0072. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing 
under Proposed Water Quality Standards for Puerto Rico at Division of 
Environmental Planning and Protection, U.S. EPA Region 2, 290 Broadway, 
New York, New York 10007, and Carribean Environmental Protection 
Division, U.S. EPA Region 2, 1492 Ponce De Leon Avenue, Suite 417, 
Santurce, Puerto Rico 00907. These Docket Facilities are open from 9 
a.m. to 3:30 p.m., Monday through Friday, excluding legal holidays. The 
Docket telephone numbers are 212-637-3807 and 787-977-5836, 
respectively. A reasonable fee will be charged for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the Federal Register 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public 
comments, access the index listing of the contents of the official 
public docket, and to access those documents in the public docket that 
are available electronically. Once in the system, select ``search,'' 
then key in the appropriate docket identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket, will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in section I.B.1. EPA intends to work 
towards providing electronic access to all of the publicly available 
docket materials through EPA electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available in the public docket identified 
in section I.B.1.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.

C. How and to Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' EPA is not 
required to consider these late comments.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD-ROM you submit, and in any cover letter accompanying 
the disk or CD-ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EPA Dockets. Your use of EPA's electronic public docket to 
submit comments to EPA electronically is EPA's preferred method for 
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and follow the online instructions for submitting comments. To 
access EPA's electronic public docket from the EPA Internet Home Page, 
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once 
in the system, select ``search,'' and then key in Docket ID OW-2003-
0072. The system is an ``anonymous access'' system, which means EPA 
will not know your identity, e-mail address, or other contact 
information unless you provide it in the body of your comment.

[[Page 59896]]

    ii. E-mail. Comments may be sent by electronic mail (e-mail) to [email protected], Attention Docket ID No. OW-2003-0072. In contrast to 
EPA's electronic public docket, EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the Docket without going through EPA's electronic public docket, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM 
that you mail to the address identified in section I.C.2. These 
electronic submissions will be accepted in WordPerfect or ASCII file 
format. Avoid the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: Docket Manager, Proposed Water 
Quality Standards for Puerto Rico, U.S. EPA Region 2, 290 Broadway, New 
York, New York 10007, Attention Docket ID No. OW-2003-0072.
    3. By Hand Delivery or Courier. Deliver your comments to the 
address identified in section I.C.2., attention Docket ID OW-2003-0072. 
Such deliveries are only accepted during the Docket's normal hours of 
operation as identified in section I.B.1.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

II. Background

A. Statutory and Regulatory Background

    Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or ``the 
Act'') directs States, Territories, and authorized Tribes (hereafter 
referred to as ``States''), with oversight by EPA, to adopt water 
quality standards to protect the public health and welfare, enhance the 
quality of water and serve the purposes of the CWA. Under section 303, 
States are required to develop water quality standards for navigable 
waters of the United States within the State. Section 303(c) provides 
that water quality standards shall include the designated use or uses 
to be made of the water and water quality criteria necessary to protect 
those uses. The designated uses to be considered by States in 
establishing water quality standards are specified in the Act: public 
water supplies, propagation of fish and wildlife, recreation, 
agricultural uses, industrial uses and navigation. States are required 
to review their water quality standards at least once every three years 
and, if appropriate, revise or adopt new standards. The results of this 
triennial review must be submitted to EPA, and EPA must approve or 
disapprove any new or revised standards.
    Section 303(c) of the CWA authorizes the EPA Administrator to 
promulgate water quality standards to supersede State standards that 
have been disapproved or in any case where the Administrator determines 
that a new or revised standard is needed to meet the CWA's 
requirements. In an August 11, 2003, Opinion and Order from the United 
States District Court for the District of Puerto Rico in the case of 
CORALations and the American Littoral Society v. United States 
Environmental Protection Agency, et al. (No. 02-1266 (JP) (D. Puerto 
Rico)), the Court ordered EPA to prepare and publish new or revised 
water quality standards for those waters which are currently classified 
as ``Class SC'' (secondary contact recreation) waters by the 
Commonwealth of Puerto Rico. EPA is, therefore, proposing Federal water 
quality standards for these waters in Puerto Rico.
    EPA regulations implementing CWA section 303(c) are published at 40 
CFR part 131. Under these rules, the minimum elements that must be 
included in a State's water quality standards include: use designations 
for all water bodies in the State, water quality criteria sufficient to 
protect those use designations, and an antidegradation policy (see 40 
CFR 131.6).
    Water quality standards establish the ``goals'' for a water body 
through the establishment of designated uses. Designated uses, in turn, 
determine what water quality criteria apply to specific water bodies. 
Section 101(a)(2) of the Act establishes as a national goal ``water 
quality which provides for the protection and propagation of fish, 
shellfish, and wildlife and * * * recreation in and on the water,'' 
wherever attainable. These national goals are commonly referred to as 
the ``fishable/swimmable'' goals of the Act. Section 303(c)(2)(A) 
requires water quality standards to ``protect the public health or 
welfare, enhance the quality of water, and serve the purposes of this 
[Act].'' EPA's regulations at 40 CFR part 131 interpret and implement 
these provisions by requiring that water quality standards provide for 
fishable/swimmable uses unless those uses have been shown to be 
unattainable. The mechanism in EPA's regulations used to overcome this 
presumption is a use attainability analysis (UAA).
    Under 40 CFR 131.10(j), States are required to conduct a UAA 
whenever the State designates or has designated uses that do not 
include the uses specified in section 101(a)(2) of the CWA or when the 
State wishes to remove a designated use that is specified in section 
101(a)(2) of the CWA or adopt subcategories of uses that require less 
stringent criteria. Uses are considered by EPA to be attainable, at a 
minimum, if the uses can be achieved (1) when effluent limitations 
under section 301(b)(1)(A) and (B) and section 306 are imposed on point 
source dischargers and (2) when cost effective and reasonable best 
management practices are imposed on nonpoint source dischargers. 40 CFR 
131.10 lists grounds upon which to base a finding that attaining the 
designated use is not feasible, as long as the designated use is not an 
existing use: (i) Naturally occurring pollutant concentrations prevent 
the attainment of the use; (ii) Natural, ephemeral, intermittent or low 
flow conditions or water levels prevent the attainment of the use, 
unless these conditions may be compensated for by the discharge of 
sufficient volume of effluent discharges without violating State water 
conservation requirements to enable uses to be met; (iii) Human caused 
conditions or sources of pollution prevent the attainment of the use 
and cannot be remedied or would cause more environmental damage to 
correct than to leave in place; (iv) Dams, diversions or other types of 
hydrologic modifications preclude the attainment of the use, and it is 
not feasible to

[[Page 59897]]

restore the water body to its original condition or to operate such 
modification in a way which would result in the attainment of the use; 
(v) Physical conditions related to the natural features of the water 
body, such as the lack of a proper substrate, cover, flow, depth, 
pools, riffles, and the like unrelated to water quality, preclude 
attainment of aquatic life protection uses; or (vi) Controls more 
stringent than those required by sections 301(b) and 306 of the CWA 
would result in substantial and widespread economic and social impact.
    A UAA is defined in 40 CFR 131.3(g) as a ``structured scientific 
assessment of the factors affecting the attainment of a use which may 
include physical, chemical, biological, and economic factors'' (see 
Sec. Sec.  131.3 and 131.10). In a UAA, the physical, chemical and 
biological factors affecting the attainment of a use are evaluated 
through a water body survey and assessment.
    Guidance on water body survey and assessment techniques is 
contained in the Technical Support Manual, Volumes I-III: Water Body 
Surveys and Assessments for Conducting Use Attainability Analyses. 
Volume I provides information on water bodies in general; Volume II 
contains information on estuarine systems; and Volume III contains 
information on lake systems (Volumes I-II, November 1983; Volume III, 
November 1984). Additional guidance is provided in the Water Quality 
Standards Handbook: Second Edition (EPA-823-B-94-005, August 1994). 
Guidance on economic factors affecting the attainment of a use is 
contained in the Interim Economic Guidance for Water Quality Standards: 
Workbook (EPA-823-B-95-002, March 1995). In developing today's 
proposal, EPA followed the same procedures set out for States in 40 CFR 
part 131 and EPA's implementing policies, procedures, and guidance.
    EPA regulations effectively establish a ``rebuttable presumption'' 
that fishable/swimmable uses are attainable and, therefore, should 
apply to a water body unless it is demonstrated that such uses are not 
attainable. EPA adopted this approach to help achieve the national goal 
articulated by Congress that, ``wherever attainable,'' water quality 
provide for the ``protection and propagation of fish, shellfish and 
wildlife'' and for ``recreation in and on the water.'' CWA section 
101(a). While facilitating achievement of Congress' goals, the 
rebuttable presumption approach preserves States' paramount role in 
establishing water quality standards in weighing any available evidence 
regarding the attainable uses of a particular water body. The 
rebuttable presumption approach does not restrict the discretion that 
States have to determine that fishable/swimmable uses are not, in fact, 
attainable in a particular case. Rather, if the water quality goals 
articulated by Congress are not to be met in a particular water body, 
the regulations simply require that such a determination be based upon 
a credible ``structured scientific assessment'' of use attainability.
    EPA's approach in this rulemaking does not undermine the 
Commonwealth's primary role in designating uses and setting criteria 
for waters in Puerto Rico. If the Commonwealth reclassifies the Subject 
Waterbodies to a swimmable designated use or adopts criteria sufficient 
to protect a swimmable use prior to EPA's finalizing this rule, EPA 
would expect to approve the Commonwealth's action and not finalize this 
rule. Alternatively, if the Commonwealth completes a sound analysis of 
use attainability, taking into account appropriate biological, chemical 
and physical factors, and concludes that the swimmable use is not 
attainable for these water bodies, EPA would expect to approve the 
Commonwealth's action, if it meets all requirements of EPA's 
regulations at 40 CFR part 131, and not finalize this rule. If the 
Commonwealth submits an adequate analysis which concludes that the 
swimmable use is not attainable after EPA takes final action, EPA would 
expect to initiate a rulemaking to rescind the rule. EPA encourages the 
Commonwealth to continue evaluating the appropriate use designation for 
these water bodies.

B. Current Puerto Rico Water Quality Standards

    Puerto Rico's water quality standards regulation (PRWQSR) at 
Article 2 establishes a classification system containing the designated 
uses for water bodies in the Commonwealth. Puerto Rico has applied 
these use designations to all coastal, estuarine, and surface waters of 
the Commonwealth.
    The current use designation adopted by the Commonwealth for the 
Subject Waterbodies is Class SC. Coastal waters designated as Class SC 
are ``intended for uses where the human body may come into indirect 
contact with the water (such as fishing, boating, etc.) and for use in 
propagation and preservation of desirable species, including threatened 
or endangered species.'' (PRWQSR, at Article 3.2.3.)
    EPA's regulations at 40 CFR part 131 require that waters designated 
for a use less protective than a fishable/swimmable use be supported by 
a use attainability analysis, because neither the best usage or 
conditions related to the best usage for these waters include the 
fishable/swimmable uses, nor do all the criteria necessary to protect 
those uses apply. ``Fishing'' and ``propagation and preservation of 
desirable species'' are included as a condition of the best usage. As 
such, Class SC includes the ``fishable'' use established as a goal in 
the Clean Water Act. However, primary contact recreation and the 
criteria necessary to protect this use are not included for Class SC. 
Puerto Rico uses fecal coliform and enterococci bacteria criteria to 
protect for the primary contact recreation use. Class SC includes 
bacteria criteria sufficient to protect secondary contact recreation. 
However, these criteria do not provide protection from pathogens 
associated with fecal contamination during direct contact with the 
water and, therefore, do not protect for the swimming use.
    Section 3.2.3 of the PRWQSR contains the use classifications and 
associated use-specific criteria for Class SC waters for dissolved 
oxygen, fecal coliforms, pH, color, turbidity, taste and odor producing 
substances, sulfates, and surfactants as MBAS (methylene blue active 
substances). With the exception of the criteria for fecal coliforms, 
which are not fully protective of the primary contact recreation use, 
these criteria for Class SC waters have been found to be protective of 
CWA section 101(a) uses and have been previously approved by EPA. These 
criteria are intended to protect aquatic life and/or general aesthetic 
conditions in these waters.
    Water Quality Criteria for bacteria is the only parameter that is 
specifically intended to protect the primary contact recreation use. 
Water quality criteria for bacteria are intended to protect bathers 
from gastrointestinal illness in recreational waters. The water quality 
criteria establish levels of indicator bacteria that demonstrate the 
presence of fecal contamination. These levels should not be exceeded in 
order to protect bathers in fresh and marine recreational waters. The 
inclusion of primary contact recreation as a use for Class SC waters 
and the application of the indicator bacteria criteria described above 
would result in the Class SC waters being fully ``swimmable.'' The 
remainder of the criteria that Puerto Rico applies to its coastal 
waters are sufficient to protect other CWA section 101(a) uses, such as 
aquatic life protection and human health protection from the 
consumption of fish based on the level of toxic pollutants in the water 
and in the fish tissue.

[[Page 59898]]

    Section 3.1 of the PRWQSR contains narrative water quality criteria 
and numeric criteria for substances in toxic concentrations including 
inorganic substances, pesticides, non-pesticide organic substances, 
carbon tetrachloride, volatile organic substances, and semi-volatile 
organic substances. The criteria in section 3.1 are applicable to all 
waters of Puerto Rico, including those waters classified as Class SC. 
These criteria are protective of all applicable uses, and have been 
approved by EPA.
    The Puerto Rico Environmental Quality Board (EQB) applies the Class 
SC designation for the bay components of the Subject Waterbodies from 
the zone subject to the ebb and flow of tides (mean sea level) to 10.3 
nautical miles seaward, and from 500m from the shoreline to 10.3 
nautical miles seaward for the coastal ring. However, as discussed 
below, it is clear that State jurisdiction under the CWA is limited to 
``navigable waters'' of the United States, including territorial seas 
which extend only three miles seaward. Accordingly, in this proposal, 
the new use designation for coastal waters is limited to the 
territorial seas.
    Section 303(c)(2)(A) of the CWA provides that States are to adopt 
water quality standards for ``navigable waters.'' Under section 
303(c)(3) (which provides for EPA review of State water quality 
standards), if EPA approves the State's water quality standards, they 
become the standards for the applicable waters of the State. Where the 
Administrator proposes and promulgates water quality standards, section 
303(c)(4) provides that the State water quality standards shall apply 
to ``navigable waters.''
    Section 502(7) of the CWA defines ``navigable waters'' as waters of 
the United States, including the ``territorial seas.'' Section 502(8) 
defines ``territorial seas'' to mean ``the belt of the seas measured 
from the line of ordinary low water along that portion of the coast 
which is in direct contact with the open sea and the line marking the 
seaward limit of inland waters, and extending seaward a distance of 
three miles.'' The ``contiguous zone'and ``ocean'' are defined 
separately (see sections 502(9) and (10)).
    The CWA also includes two other definitions (for ``effluent 
limitations'' and ``discharge of a pollutant'') that distinguish 
navigable waters from the contiguous zone and the ocean. These 
definitions also indicate that navigable waters are not meant to 
include the contiguous zone and the ocean. EPA has a long standing 
interpretation of the statute that does not include the contiguous zone 
and ocean in the definition of navigable waters which is reflected in 
its regulations (40 CFR 122.2). The CWA authorizes each State that 
elects to administer its own NPDES permit program for discharges into 
navigable waters within its jurisdiction, to submit its program for EPA 
review (see section 402(b)). If EPA approves the State program, EPA 
suspends its issuance of permits under section 402(a), but only as to 
those navigable waters subject to the State program (see section 
402(c)(1)). While the CWA definition of navigable waters includes the 
territorial sea, it does not include the contiguous zone or the ocean, 
both of which are defined as regions beyond the territorial sea. Read 
together, these provisions plainly indicate that Congress intended the 
State NPDES program jurisdiction to be limited to navigable waters 
including the territorial sea. States cannot assume NPDES permitting 
authority beyond the three-mile limit of the territorial sea.
    Two decisions in the Ninth Circuit Court have addressed these 
jurisdictional issues. In Pacific Legal Foundation et al. v Costle, 586 
F. 2d 657 (9th Cir. 1978) rev'd on other grounds, 445 U.S. 198., the 
Court held that only the Administrator has authority to issue NPDES 
permits for waters beyond the territorial seas, and that the contiguous 
zone and the ocean clearly extend beyond the outer limits of the 
``navigable waters'' which mark the extent of the power of the States 
to administer their own permit programs. The Court noted that ``had 
Congress intended the power of the States to extend beyond the 
territorial seas,'' it easily could have so provided.'' Id. at 656. 
Further, citing the definition of ``discharge of a pollutant,'' which 
distinguishes discharges to navigable waters from discharges to the 
contiguous zone or the ocean, the Court concluded that ``it is apparent 
that `ocean' and `contiguous zone' waters are not included within the 
scope of `navigable waters' * * *'' Id.
    In Natural Resources Defense Council v. EPA, 863 F.2d 1420, (9th 
Cir. 1988), the Court held that ``navigable waters'' include only those 
waters landward from the territorial sea. Id. at 1435. In this case, 
Florida argued that it had jurisdiction to apply water quality 
standards more than three miles from the coast. The State contended 
that its maritime boundaries extended three maritime leagues 
(approximately 10.3 miles). Florida maintained that EPA must assure 
that discharges under EPA's general permit would comply with the 
State's water quality standards out to 10.3 miles. The Court disagreed, 
finding that the State's jurisdiction is limited to the territorial 
seas. The Court noted that it is ``difficult to ignore the express 
language of the Clean Water Act's definition of territorial seas.'' 
And, further, that ``if there were any doubt that Congress intended to 
create a uniform three-mile boundary in the (CWA), the legislative 
history * * * indicates Congress consciously defined the term 
`territorial seas' to make clear the jurisdiction limits of this 
particular legislation and its relationship to other statutes.'' Id. at 
1436. For these reasons, EPA is proposing the new use designation for 
coastal waters limited to the territorial seas.
    EPA is proposing to include primary contact recreation as a 
specified designated use for the Subject Waterbodies. In developing 
today's proposal, EPA evaluated the PRWQSR to determine which bacteria 
criteria would protect for the ``swimmable'' use, and would therefore 
ensure achievement of the CWA section 101(a)(2) goals. As a result, EPA 
is proposing the bacteriological criteria associated with Class SB 
(primary contact recreation) for fecal coliform and enterococci set out 
at Section 3.2.2 of the PRWQSR for the Subject Waterbodies because 
these criteria are protective of primary contact recreation. The 
proposed water quality standards for these water bodies, if ultimately 
promulgated, will be the basis for establishing NPDES permit limits by 
EPA Region 2.

C. Factual Background

1. Summary of Commonwealth and EPA Administrative Actions
    In August 1990, the Commonwealth of Puerto Rico adopted revisions 
to the PRWQSR. These were sent to EPA on September 21, 1990, with the 
caveat from the Chairman of the EQB that the transmittal may not be the 
final submittal, since EQB was going to have public hearings on 
November 1, 1990. Because of this caveat, and because the requisite 
certification from the Commonwealth's Secretary of Justice was not 
submitted with the revisions as required by 40 CFR 131.6(e), EPA did 
not act on these revisions immediately.
    From 1991 to 1993, EPA Region 2 worked with EQB on a series of 
draft revisions to the PRWQSR. These drafts were never adopted by 
Puerto Rico. In 1992, EPA included Puerto Rico in the National Toxics 
Rule, in large part because EPA did not consider the 1990 revisions to 
be officially adopted.
    The requisite certification from the Commonwealth's Secretary of 
Justice was ultimately submitted to EPA on

[[Page 59899]]

February 25, 2002. Upon receipt of this certification EPA took final 
action on all new and revised provisions of the 1990 PRWQSR on March 
28, 2002. These revisions included 11 separate new or revised 
provisions.The 1990 revisions to the PRWQSR, however, did not include 
any changes to the designation of specific waterbody segments, 
including upgrades from Class SC to SB.
    On March 28, 2003, EQB submitted additional revisions to the PRWQSR 
that EPA approved on June 26, 2003. These revisions included the 
reclassification of ten bays/estuaries, previously classified as Class 
SC waters, to Class SB (Article 2.1.3). These included: Aguadilla Bay 
(from Punta Boquer[oacute]n to Punta Borinquen); Arecibo Bay (from 
Punta Maracayo to Punta Caracoles); Fajardo Bay (from Playa Sardinera 
to Playa de Fajardo); Roosevelt Roads (from Punta Cabra de Tierra to 
Punta Cascajo); Port of Naguabo (from Playa de Naguabo to El Morrillo); 
Jobos Bay and Laguna de la Mareas (from Punta Rodeo to Punta 
Colchones); Gu[aacute]nica Bay inland waters north of the mouth of the 
river; Port of Dewey in Culebra; and Port of Isabel Segunda in Vieques 
and Puerto Real in Vieques between Cayo de Tierra and Cayo Real.
    While the March 28, 2003, revisions to the PRWQSR did address ten 
bays/estuaries that were previously classified as Class SC waters by 
reclassifying them to Class SB, Puerto Rico recognized that it still 
needed to address the Subject Waterbodies. In an effort to do so, EQB, 
in its State Fiscal Year 2003 CWA Section 604(b) Consolidated Workplan, 
committed to develop a plan to outline a schedule for data collection 
and analysis and identify the applicable regulatory actions for these 
waters. EQB is currently completing this plan.
2. Summary of Legal Actions
    On February 20, 2002, a complaint was filed in the U.S. District 
Court for the District of Puerto Rico by three environmental groups: 
CORALations, American Littoral Society, and the American Canoe 
Association. In this action, the plaintiffs alleged, among other 
things, that certain actions by EPA personnel had triggered a mandatory 
duty under section 303(c) of the CWA for EPA to prepare and propose 
regulations setting forth a revised water quality standard for any 
coastal waters that remained classified SC. The Court, in its August 
11, 2003, Opinion and Order, ordered EPA to prepare and publish new or 
revised water quality standards for those coastal waters which are 
currently classified as Class SC waters.

III. Use Designations and Criteria for Waters Currently Designated as 
Class SC

A. Proposed Use Designations and Criteria for the Subject Waterbodies

    EPA evaluated all available data and information to determine 
whether the swimmable use is attainable in the Subject Waterbodies. 
EPA's analysis was informed by the regulatory provisions at 40 CFR part 
131 and technical guidance that EPA provided to States for developing 
use attainability analyses. The information that EPA used in its 
evaluation of the coastal ring component of the Subject Waterbodies 
shows that the swimmable use is attainable in these waters. That 
information included all available Quarterly Reports of the 301(h) 
Waiver Demonstration Studies for five Regional Wastewater Treatment 
Plants that discharge to the waters comprising the coastal ring. The 
ambient water quality data collected as part of these quarterly reports 
showed that the applicable bacteria criteria to protect primary contact 
recreation (fecal coliform and enterococci) were being attained in the 
waters of the coastal ring outside of the designated mixing zones. The 
quarterly reports also demonstrated that the bacteria criteria to 
protect primary contact recreation are being met at the edge of the 
mixing zone (based on the measured end-of-pipe concentrations of 
bacteria at each Regional Wastewater Treatment Plant and the critical 
initial dilution that is achieved at each ocean outfall).
    As discussed in the Puerto Rico Water Quality Inventory and List of 
Impaired Waters--2002 305(b)/303(d) Integrated Report Final Version 
(February 2003), there is currently little or no data available on 
which to determine the attainability of the swimmable use in the bay 
components of the Subject Waterbodies. According to this report, there 
is insufficient data to determine the use attainment for 38% of the 
coastal miles and 89% of the estuarine acres. The Subject Waterbodies 
with insufficient data to make a use attainment determination include 
Yabucoa Port, portions of Guayanilla and Tallaboa Bays, and San Juan 
Port. The EQB determined that the following Subject Waterbodies were 
attaining water quality standards: Mayaguez Bay, Ponce Port, and 
portions of Guayanilla and Tallaboa Bays. However, EPA's regulations at 
40 CFR part 131 require that water quality standards provide for 
fishable/swimmable uses unless those uses have been shown to be 
unattainable, which effectively creates a rebuttable presumption of 
attainability. If the Commonwealth takes into account the appropriate 
biological, chemical, and physical factors in completing a sound 
analysis of use attainability and concludes that the swimmable use is 
not attainable in these waterbodies, EPA would expect to approve the 
Commonwealth's action (if it meets all requirements of EPA's 
regulations at 40 CFR part 131). In an effort to properly characterize 
the attainability of the bays which remain classified SC, EQB is 
developing a plan to outline a schedule for data collection and 
analysis in order to provide the information necessary for EQB to 
demonstrate whether the swimmable use is attainable in these waters.
    The last broad category of information considered by EPA in its 
decision-making process was monitoring data from a sample of 
potentially affected dischargers to the water bodies (as reflected in 
Discharge Monitoring Reports or DMRs). As discussed in section V, EPA 
analyzed the extent to which the proposed Federal use designations and 
criteria may lead to the development of more stringent NPDES permit 
limits and, if so, what types of controls would be needed by 
potentially affected facilities to meet such limits. Discharger 
information was used in one of two ways by the Agency. First, EPA used 
monitoring data to assess point sources to the affected water bodies 
and to help determine whether their pollutant discharges could 
contribute to ambient exceedances of criteria. Second, the Agency used 
the monitoring data to determine whether potentially affected 
dischargers would need to make significant alterations to their 
operations (or if they could, in fact, meet permit limits for bacteria 
that would be associated with the swimmable use). Information 
indicating that potentially affected dischargers could generally meet 
such revised limits based on the proposed bacteria criteria would 
support the presumption that the swimmable use is attainable.
    Based upon this approach, EPA evaluated all available data and 
information to determine whether the swimmable use is attainable for 
the Subject Waterbodies. As a result, EPA is proposing to include 
primary contact recreation as a specified designated use for the 
Subject Waterbodies. In addition, EPA is proposing to include bacteria 
criteria which are protective of primary contact recreation for the 
Subject Waterbodies. The proposed bacteria criteria are the same as the 
Commonwealth's criteria associated with the Class SB use for fecal 
coliform and enterococci, set out at Section 3.2.2 of the PRWQSR. If 
Puerto Rico classifies

[[Page 59900]]

these waterbodies with use designations consistent with the CWA and 40 
CFR part 131 before a final rulemaking, EPA would expect to approve 
those use designations. This would eliminate the need to promulgate 
Federal water quality standards for any waterbody so reclassified. EPA 
notes that a water's use designation of primary contact recreation 
(made solely for CWA purposes) and adoption of water quality criteria 
protective of that use are intended to ensure that water quality will 
protect swimming if it occurs in such waters. A water's use designation 
of primary contact recreation is not an official government sanction 
that swimming necessarily is recommended in such waters. There may be 
other considerations, such as safety, in deciding whether swimming is 
appropriate.
    EPA is soliciting comment for information about use attainability, 
especially for any Subject Waterbodies with no or limited data.

B. Request for Comment and Data

    EPA believes the proposed primary contact recreation designated use 
and the bacteria criteria to protect primary contact recreation for the 
Subject Waterbodies are appropriate considering the requirements of the 
CWA and the information available to EPA at this time. EPA acknowledges 
that additional information may exist that may further support or 
contradict the attainability of a proposed primary contact recreation 
designated use and bacteria criteria in Subject Waterbodies. The Agency 
will evaluate any new information that is submitted to EPA during the 
public comment period with regard to the primary contact recreation use 
and bacteria criteria for the Subject Waterbodies. Based on the 
evaluation of new information, EPA will decide whether the primary 
contact recreation use and bacteria criteria for the Subject 
Waterbodies in today's proposal are appropriate and consistent with the 
CWA. To help the Agency ensure that this decision is based on the best 
available information, the Agency is soliciting additional information. 
The following paragraphs provide guidance on the type of information 
EPA considers relevant.
    Specifically, EPA seeks information on the Subject Waterbodies that 
would help determine: (1) Whether primary contact recreation is or has 
been an existing use; (2) whether the designated use and criteria 
identified above are being attained or have been attained in the past; 
(3) whether natural conditions or features or human caused conditions 
prevent the attainment of this use and criteria and whether these 
conditions can be remedied or would cause more environmental damage to 
correct than to leave in place; or (4) whether controls more stringent 
than those required by section 301(b) and 306 of the CWA would be 
needed to attain the use, and whether implementation of such controls 
would result in substantial and widespread social and economic impact. 
Below is a general discussion of the types of data/information 
requested by the Agency:
    Ambient Monitoring Information: (1) Any ambient water quality data 
for the Subject Waterbodies reflecting either natural conditions or 
human-caused conditions which cannot be remedied and which prevent the 
swimmable use or water quality criteria from being attained; (2) any 
available ambient biological data; (3) any chemical and biological 
monitoring data that verify improvements to water quality resulting 
from treatment plant/facility upgrades and/or expansions; and (4) any 
ambient water quality data reflecting nonpoint sources of pollution or 
best management practices that have been implemented for nonpoint 
source control.
    Economic Data: Any information relating to costs and benefits 
associated with or incurred as a result of facility or treatment plant 
expansions or upgrades, including: (1) Qualitative descriptions or 
quantitative estimates of any costs and benefits associated with 
facility or treatment plant expansions or upgrades, or associated with 
facilities or treatment plants meeting permit limits; (2) any 
information on costs to households in the community with facility or 
treatment plant expansions or upgrades, whether through an increase in 
user fees, an increase in taxes, or a combination of both; (3) 
descriptions of the geographical area affected; (4) any changes in 
median household income, employment, and overall net debt as a percent 
of full market value of taxable property; and (5) any effects of 
changes in tax revenues if the private-sector entity were to go out of 
business, including changes in income to the community if workers lose 
their jobs, and effects on other businesses both directly and 
indirectly influenced by the continued operation of the private sector 
entity.

IV. Alternative Regulatory Approaches and Implementation Mechanisms

    Today's proposal reflects EPA's determination that primary contact 
recreation is an appropriate use designation for the Subject 
Waterbodies based upon the information currently available to EPA. In 
developing a final rule, EPA will consider any data or information 
submitted to the Agency during the comment period. However, it is 
possible that relevant information for these waterbodies may become 
available after completion of this rulemaking. If EPA ultimately 
promulgates a Federal ``swimmable'' use designation for these 
waterbodies, there are several ways to ensure that the use and its 
implementing mechanisms appropriately take into account such future 
information.

A. Designating Uses

    States have considerable discretion in designating uses. A State 
may find that changes in use designations are warranted. EPA will 
review any new or revised use designations adopted by the Commonwealth 
for these waters to determine if the standards meet the requirements of 
the CWA and implementing regulations. If approved, EPA would withdraw 
any final Federal water quality standards which may result from today's 
proposal.
    In adopting recreation uses, the Commonwealth may wish to consider 
additional categories of recreation uses. For example, Puerto Rico 
could establish more than one category of primary contact recreation to 
differentiate between waters where recreation is known to occur and 
waters where recreation is not known to occur but may be attained based 
on water quality, flow, and depth characteristics.
    EPA cautions the Commonwealth that it must conduct use 
attainability analyses as described in 40 CFR 131.10(g) when adopting 
water quality standards that result in uses not specified in section 
101(a)(2) of the CWA or that result in subcategories of uses specified 
in section 101(a)(2) that require less stringent criteria (see 40 CFR 
131.10(j)).

B. Site-Specific Criteria

    The Commonwealth may also develop data indicating a site-specific 
water quality criterion for a particular pollutant is appropriate and 
take action to adopt such a criterion into their water quality 
standards. Site-specific criteria are allowed by regulation and are 
subject to EPA review and approval. 40 CFR 131.11(a) requires States to 
adopt criteria to protect designated uses based on sound scientific 
rationale and containing sufficient parameters or constituents to 
protect the designated use. In adopting water quality criteria, States 
should establish numerical values based on 304(a) criteria, 304(a) 
criteria modified to reflect site-specific conditions or other 
scientifically defensible methods. Alternatively, States may establish 
narrative criteria

[[Page 59901]]

where numerical criteria cannot be determined or to supplement numeric 
criteria (see 40 CFR 131.11(b)). EPA does not have specific guidance 
for States and authorized Tribes on developing site-specific criteria 
for the protection of recreation uses, but this does not preclude the 
Commonwealth from developing its own scientifically defensible methods. 
Today's proposed rule does not limit Puerto Rico's ability to modify 
the criteria applicable to the Federal swimmable use.

C. Variances

    Water quality standards variances are another alternative that can 
give a facility a limited period of time to comply with water quality 
standards. Puerto Rico has an EPA-approved variance procedure in the 
PRWQSR (Article 9). As discussed above, the proposed rule contains a 
Federal variance procedure.
    EPA believes variances are particularly suitable when the cause of 
non-attainment is discharger-specific and/or it appears that the 
designated use in question will eventually be attainable. EPA has 
approved the granting of water quality standards variances by States 
when circumstances might otherwise justify changing a use designation 
on grounds of unattainability (i.e., the six circumstances described in 
40 CFR 131.10(g)). In contrast to a change in standards that removes a 
use designation for a water body, a water quality standards variance is 
time-limited and only applies to the discharger to whom it is granted 
and only to the pollutant parameter(s) upon which the finding of 
unattainability was based. The underlying standard remains in effect 
for all other purposes.
    For example, if the Commonwealth or a permittee demonstrates that 
the primary contact recreation use can not be attained pursuant to 40 
CFR 131.10(g) because of high levels of fecal coliforms from a 
wastewater treatment facility, but where an upgraded treatment 
technology might allow the designated use to be attained, a temporary 
variance may be appropriate. The variance would allow the discharger's 
permit to include limits based on relaxed criteria for fecal coliform 
until the new technology is put in place and it is determined if the 
underlying designated use is attainable. The practical effect of such a 
variance is to allow a permit to be written using less stringent 
criteria, while encouraging ultimate attainment of the underlying 
standard. A water quality standards variance provides a mechanism for 
ensuring compliance with sections 301(b)(1)(C) and 402(a)(1) of the CWA 
while also granting temporary relief to point source dischargers.
    While 40 CFR 131.13 allows States to adopt variance procedures for 
State-adopted water quality standards, such State procedures may not be 
used to grant variances from Federally promulgated standards. EPA 
believes that it is appropriate to provide comparable Federal 
procedures to address new information that may become available. 
Therefore, under EPA's proposal, the Region 2 Regional Administrator 
may grant water quality standard variances where a permittee submits 
data indicating that the primary contact recreation designated use is 
not attainable for any of the reasons in 40 CFR 131.10(g). This 
variance procedure will apply to the primary contact recreation use for 
the Subject Waterbodies.
    Today's proposed rule spells out the process for applying for and 
granting such variances. EPA is proposing to use informal adjudication 
processes in reviewing and granting variance requests. That process is 
contained in 40 CFR 131.40(c)(4) of today's proposed rule. Because 
water quality standards variances are revisions to water quality 
standards, the proposal provides that the Regional Administrator will 
provide public notice of the proposed variance and an opportunity for 
public comment. EPA understands that variance related issues may arise 
in the context of permit issuance.
    The proposed variance procedures require an applicant for a water 
quality standards variance to submit a request and supporting 
information to the Regional Administrator (or his/her delegatee). The 
applicant must demonstrate that the designated use is unattainable for 
one of the reasons specified in 40 CFR 131.10(g). A variance may not be 
granted if the use could be attained, at a minimum, by implementing 
effluent limitations required under sections 301(b) and 306 of the CWA 
and reasonable best management practices for nonpoint source control.
    Under the proposal, a variance may not exceed five years or the 
term of the NPDES permit, whichever is less. A variance may be renewed 
if the permittee demonstrates that the use in question is still not 
attainable. Renewal of the variance may be denied if EPA finds that the 
conditions of 40 CFR 131.10(g) are not met or if the permittee did not 
comply with the conditions of the original variance.
    EPA is soliciting comment on the need for a variance process for 
EPA-promulgated use designations, the appropriateness of the particular 
procedures proposed today, and whether the proposed variance procedures 
are sufficiently detailed.

V. Economic Analysis

    This proposed rule will have no direct impact on any entity because 
the rule simply establishes water quality standards (e.g., use 
designations) which by themselves do not directly impose any costs. 
These standards, however, may serve as a basis for development of NPDES 
permit limits. In Puerto Rico, EPA Region 2 is the NPDES permitting 
authority and retains considerable discretion in implementing 
standards. Thus, until EPA Region 2 implements these water quality 
standards, there will be no effect on any entity. Nonetheless, EPA 
prepared a preliminary analysis to evaluate potential costs to NPDES 
dischargers in Puerto Rico associated with future implementation of 
EPA's Federal standards.
    Any NPDES-permitted facility that discharges to water bodies 
affected by this proposed rule could potentially incur costs to comply 
with the rule's provisions. The types of affected facilities may 
include industrial facilities and publicly owned treatment works 
(POTWs). EPA did not consider the potential costs for nonpoint sources, 
such as agricultural and forestry-related nonpoint sources, although 
EPA recognizes that the Commonwealth may decide to impose controls on 
these sources to achieve water quality standards. As a technical 
matter, nonpoint source discharges are difficult to model and evaluate 
for potential costs because they are intermittent, highly variable, and 
occur under different hydrologic or climatic conditions than continuous 
discharges from industrial and municipal facilities, which are 
evaluated under critical low flow or drought conditions. Thus, the 
evaluation of nonpoint sources and their effects on the environment is 
highly site-specific and data-sensitive. In addition, EPA did not 
address the potential monetary benefits of this proposed rule for 
Puerto Rico.

A. Identifying Affected Facilities

    According to EPA's Permit Compliance System (PCS), there are 593 
NPDES-permitted facilities in Puerto Rico. Eighty-four of the 
facilities are classified as major dischargers, and 509 are minor or 
general permit dischargers. However, EPA did not include general permit 
facilities in its analysis because data for such facilities are 
extremely limited and flows are usually negligible. Furthermore, EPA 
could not determine if any of these facilities actually

[[Page 59902]]

discharge to the affected water bodies because location information is 
not available in EPA's PCS database. Therefore, EPA's analysis includes 
a universe of 285 permitted facilities (84 majors and 201 minors).
    To identify facilities potentially affected by the proposed rule, 
EPA assumed that only facilities that have the potential to affect 
(i.e., cause an increase in fecal coliform levels) the Subject 
Waterbodies for which EPA is designating a new primary contact 
recreation use may be affected by the proposed rule. EPA identified 
these facilities by overlaying PCS facilities with the potentially 
affected waters and their tributaries currently designated for a Class 
SC use using GIS software. EPA assumed that only wastewater treatment 
plants or military facilities with similar effluent characteristics 
(i.e., facilities having the potential to discharge fecal coliforms) 
would potentially be affected by the proposed rule. Table 1 summarizes 
the universe of potentially affected facilities by type and category.

  Table 1.--Estimated Number of Facilities Potentially Affected by the
                              Proposed Rule
------------------------------------------------------------------------
                                                  Number of facilities
                   Category                   --------------------------
                                                Major    Minor    Total
------------------------------------------------------------------------
Military.....................................        1        2        3
Municipal....................................       19       10       29
                                              ----------
    Total....................................       20       12       32
------------------------------------------------------------------------

B. Method for Estimating Potential Compliance Costs

    EPA identified a total of 32 facilities (20 majors and 12 minors) 
that may be potentially affected by the proposed primary contact 
designated use. EPA evaluated a sample of facilities based on 
discharger type and category from this group for potential cost impacts 
associated with the proposed rule. For these sample facilities, EPA 
evaluated available effluent data from its PCS database to determine 
the potential controls that may ultimately be needed as a result of the 
proposed rule.
    EPA estimated on a case-by-case basis the most cost-effective 
control strategy for each sample facility to achieve compliance with 
the proposed criteria. EPA assumed that projected effluent limits for 
fecal coliform would be applied as criteria end-of-pipe (a monthly 
geometric mean of 200 colonies/100 mL and not more than 20% of samples 
exceeding 400 colonies/100 mL) because the facilities' current permits 
apply the current criteria in the same manner. EPA assumed that a 
sample facility would incur costs if average monthly effluent 
concentrations (or existing permit limit, whichever is smaller) 
indicate that the facility would not be in compliance with the most 
stringent criterion.
    EPA evaluated each facility's potential compliance with projected 
permit limits based on available monthly average fecal coliform values 
from the Agency's PCS database. If monthly average values are not 
available, EPA evaluated potential compliance based on maximum monthly 
values. EPA determined potential compliance with the projected limit 
for each sample facility based on the relative magnitude of the maximum 
average monthly values, the pattern of occurrence of such values (i.e., 
when maximum values occurred), and current treatment performance 
characteristics (e.g., BOD and TSS concentrations, compliance with 
current permit). For facilities exceeding their current limits, EPA 
assumed that facilities would install the necessary controls for 
compliance with current standards, and would incur costs for additional 
treatment process optimization (e.g., increase chlorine dose, improve 
mixing conditions, increase contact time) for compliance with the 
projected limit. For facilities that are in compliance with their 
current permit limits but would not comply with the projected limit, 
EPA also assumed that process optimization of their chlorination 
process may be necessary for compliance with the projected limit.

C. Results

    EPA estimated the potential costs associated with the proposed 
primary contact designated use for the Subject Waterbodies. Based on 
evaluation of the sample of potentially affected facilities, EPA 
estimated that the potential total annual cost associated with the 
proposed rule is $2.7 million.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the 
Agency must determine whether the 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. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 
It does not include any information collection, reporting, or 
recordkeeping requirements.
    Burden means the total time, effort or financial resources expended 
by persons to generate, maintain, retain, or disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant

[[Page 59903]]

economic impact on a substantial number of small entities. Small 
entities include small businesses, small organizations and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business 
according to RFA default definitions for small business (based on SBA 
size standards); (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering these economic impacts of today's proposed rule 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule will not impose any requirements on small entities. 
The RFA requires analysis of the impacts of a rule on the small 
entities subject to the rule's requirements. See United States 
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996). 
Today's proposed rule establishes no requirements applicable to small 
entities, and so is not susceptible to regulatory flexibility analysis 
as prescribed by the RFA. (``[N]o [regulatory flexibility] analysis is 
necessary when an agency determines that the rule will not have a 
significant economic impact on a substantial number of small entities 
that are subject to the requirements of the rule,'' United Distribution 
at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. 
Cir. 1985) (emphasis added by United Distribution court).)
    Under the CWA water quality standards program, States must adopt 
water quality standards for their waters and must submit those water 
quality standards to EPA for approval; if the Agency disapproves a 
State standard and the State does not adopt appropriate revisions to 
address EPA's disapproval, EPA must promulgate standards consistent 
with the statutory requirements. EPA also has the authority to 
promulgate criteria or standards in any case where the Administrator 
determines that a new or revised standard is necessary to meet the 
requirements of the Act. These State standards (or EPA-promulgated 
standards) are implemented through various water quality control 
programs including the NPDES program, which limits discharges to 
navigable waters except in compliance with an NPDES permit. The CWA 
requires that all NPDES permits include any limits on discharges that 
are necessary to meet applicable water quality standards.
    Thus, under the CWA, EPA's promulgation of water quality standards 
establishes standards that the State generally implements through the 
NPDES permit process. In this case, however, EPA Region 2 is the NPDES 
permitting authority in Puerto Rico. As such, EPA Region 2 has 
discretion in developing discharge limits as needed to meet the 
standards. While Region 2's implementation of Federally promulgated 
water quality standards may result in new or revised discharge limits 
being placed on small entities, the standards themselves do not apply 
to any discharger, including small entities.
    Today's proposed rule, as explained earlier, does not itself 
establish any requirements that are applicable to small entities. As a 
result of this action, EPA Region 2 will need to ensure that permits it 
issues include any limitations on discharges necessary to comply with 
the standards established in the final rule. In doing so, the Region 
will have a number of choices associated with permit writing. While the 
implementation of the rule may ultimately result in some new or revised 
permit conditions for some dischargers, EPA's action today does not 
impose any of these as yet unknown requirements on small entities.

D. 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. The definition of ``State'' for the 
purposes of UMRA includes ``a territory or possession of the United 
States.'' 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 of 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.
    Today's proposed rule contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local or 
Tribal governments or the private sector. The proposed rule imposes no 
enforceable duty on the Commonwealth of Puerto Rico, or any other 
State, local or Tribal governments or the private sector; rather, this 
rule proposes a designated use for primary contact recreation and 
associated bacteria criteria for the Subject Waterbodies, which, when 
combined with Commonwealth adopted water quality criteria, constitute 
water quality standards for those waterbodies. The Commonwealth and EPA 
may use these resulting water quality standards in implementing its 
water quality control programs. Today's proposed rule does not regulate 
or affect any entity and, therefore, is not subject to the requirements 
of sections 202 and 205 of the UMRA.
    EPA has determined that this proposed rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As stated, the proposed rule imposes no enforceable 
requirements on any party, including small governments. Thus, this 
proposed rule is not subject to the requirements of section 203 of the 
UMRA.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct

[[Page 59904]]

effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The proposed rule would not 
affect the nature of the relationship between EPA and States generally, 
for the rule only applies to waterbodies in Puerto Rico (which is 
considered a ``State'' for purposes of the water quality standards 
program). Further, the proposed rule would not substantially affect the 
relationship of EPA and the Commonwealth of Puerto Rico, or the 
distribution of power or responsibilities between EPA and the various 
levels of government. The proposed rule would not alter the 
Commonwealth's considerable discretion in implementing these water 
quality standards. Further, this proposed rule would not preclude 
Puerto Rico from adopting water quality standards that meet the 
requirements of the CWA. Thus, Executive Order 13132 does not apply to 
this proposed rule.
    Although Executive Order 13132 does not apply to this rule, EPA did 
consult with representatives of the Commonwealth in developing this 
rule. Prior to this proposed rulemaking action, EPA had numerous phone 
calls, meetings and exchanges of written correspondence with EQB to 
discuss EPA's concerns with the Commonwealth's water quality standards, 
possible remedies for addressing the inadequate sections of their water 
quality standards, the use designations and criteria in today's 
proposal, and the Federal rulemaking process. For a more detailed 
description of EPA's interaction with the Commonwealth on this proposed 
rulemaking, refer to section II.C.2. EPA will continue to work with the 
Commonwealth before finalizing these water quality standards for Puerto 
Rico. In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and Indian tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
There are no Indian Tribes in Puerto Rico, where this rule would apply. 
Thus, Executive Order 13175 does not apply to this rule.

G. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``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, 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.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866. 
Further, it does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. This proposed rule, if promulgated, would establish water 
quality standards to meet the requirements of the CWA and the 
implementing Federal regulations.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA 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, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.
    EPA welcomes comment on this aspect of the proposed rulemaking, 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians--lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: October 14, 2003.
Marianne Lamont Horinko,
Acting Administrator.

    For the reasons set forth in the preamble, EPA proposes to amend 40 
CFR part 131 as follows:

PART 131--WATER QUALITY STANDARDS

    1. The authority citation for part 131 continues to read as 
follows:

    Authority: 33 U.S.C. 1251 et seq.

Subpart D--[Amended]

    2. Section 131.40 is added to read as follows:

[[Page 59905]]

Sec.  131.40  Puerto Rico.

    (a) Use designations for marine waters. In addition to the 
Commonwealth's adopted use designations, the following waterbodies in 
Puerto Rico have the beneficial use designated in this paragraph (a) 
within the bays specified below, and within the Commonwealth's 
territorial seas, as defined in section 502(8) of the Clean Water Act, 
and 33 CFR 2.05-5, except such waters classified by the Commonwealth as 
SB.

----------------------------------------------------------------------------------------------------------------
          Waterbody segment                      From                      To                 Designated use
----------------------------------------------------------------------------------------------------------------
Coastal Waters.......................  500m offshore..........  3 miles offshore.......  Primary Contact.
                                                                                         Recreation.
Guayanilla & Tallaboa Bays...........  Cayo Parguera..........  Punta Verraco..........  Primary Contact.
                                                                                         Recreation.
Mayaguez Bay.........................  Punta Guanajibo........  Punta Algarrobo........  Primary Contact.
                                                                                         Recreation.
Ponce Port...........................  Punta Carenero.........  Punta Cuchara..........  Primary Contact.
                                                                                         Recreation.
San Juan Port........................  Mouth of R[iacute]o      Punta El Morro.........  Primary Contact.
                                        Bayam[oacute]n.                                  Recreation.
Yabucoa Port.........................  N/A....................  N/A....................  Primary Contact.
                                                                                         Recreation.
----------------------------------------------------------------------------------------------------------------

    (b) Criteria that apply to Puerto Rico's marine waters. In addition 
to all other Commonwealth criteria, the following criteria for bacteria 
apply to the waterbodies in paragraph (a) of this section:
    Bacteria: The fecal coliform geometric mean of a series of 
representative samples (at least five samples) of the waters taken 
sequentially shall not exceed 200 colonies/100 ml, and not more than 20 
percent of the samples shall exceed 400 colonies/100 ml. The 
enterococci density in terms of geometric mean of at least five 
representative samples taken sequentially shall not exceed 35/100 ml. 
No single sample should exceed the upper confidence limit of 75% using 
0.7 as the log standard deviation until sufficient site data exist to 
establish a site-specific log standard deviation.
    (c) Water quality standard variances. (1) The Regional 
Administrator, EPA Region 2, is authorized to grant variances from the 
water quality standards in paragraphs (a) and (b) of this section where 
the requirements of this paragraph (c) are met. A water quality 
standard variance applies only to the permittee requesting the variance 
and only to the pollutant or pollutants specified in the variance; the 
underlying water quality standard otherwise remains in effect.
    (2) A water quality standard variance shall not be granted if:
    (i) Standards will be attained by implementing effluent limitations 
required under sections 301(b) and 306 of the CWA and by the permittee 
implementing reasonable best management practices for nonpoint source 
control; or
    (ii) The variance would likely jeopardize the continued existence 
of any threatened or endangered species listed under section 4 of the 
Endangered Species Act or result in the destruction or adverse 
modification of such species' critical habitat.
    (3) A water quality standards variance may be granted if the 
applicant demonstrates to EPA that attaining the water quality standard 
is not feasible because:
    (i) Naturally occurring pollutant concentrations prevent the 
attainment of the use;
    (ii) Natural, ephemeral, intermittent or low flow conditions or 
water levels prevent the attainment of the use, unless these conditions 
may be compensated for by the discharge of sufficient volume of 
effluent discharges without violating Commonwealth water conservation 
requirements to enable uses to be met;
    (iii) Human caused conditions or sources of pollution prevent the 
attainment of the use and cannot be remedied or would cause more 
environmental damage to correct than to leave in place;
    (iv) Dams, diversions or other types of hydrologic modifications 
preclude the attainment of the use, and it is not feasible to restore 
the water body to its original condition or to operate such 
modification in a way which would result in the attainment of the use;
    (v) Physical conditions related to the natural features of the 
water body, such as the lack of a proper substrate, cover, flow, depth, 
pools, riffles, and the like unrelated to water quality, preclude 
attainment of aquatic life protection uses; or
    (vi) Controls more stringent than those required by sections 301(b) 
and 306 of the CWA would result in substantial and widespread economic 
and social impact.
    (4) Procedures. An applicant for a water quality standards variance 
shall submit a request to the Regional Administrator of EPA Region 2. 
The application shall include all relevant information showing that the 
requirements for a variance have been met. The applicant must 
demonstrate that the designated use is unattainable for one of the 
reasons specified in paragraph (c)(3) of this section. If the Regional 
Administrator preliminarily determines that grounds exist for granting 
a variance, he/she shall provide public notice of the proposed variance 
and provide an opportunity for public comment. Any activities required 
as a condition of the Regional Administrator's granting of a variance 
shall be included as conditions of the NPDES permit for the applicant. 
These terms and conditions shall be incorporated into the applicant's 
NPDES permit through the permit reissuance process or through a 
modification of the permit pursuant to the applicable permit 
modification provisions of Puerto Rico's NPDES program.
    (5) A variance may not exceed five years or the term of the NPDES 
permit, whichever is less. A variance may be renewed if the applicant 
reapplies and demonstrates that the use in question is still not 
attainable. Renewal of the variance may be denied if the applicant did 
not comply with the conditions of the original variance, or otherwise 
does not meet the requirements of this section.

[FR Doc. 03-26409 Filed 10-17-03; 8:45 am]
BILLING CODE 6560-50-P