[Federal Register Volume 65, Number 151 (Friday, August 4, 2000)]
[Rules and Regulations]
[Pages 47864-47874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19792]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 132
[FRL-6846-3]
Identification of Approved and Disapproved Elements of the Great
Lakes Guidance Submissions From the States of Michigan, Ohio, Indiana,
and Illinois, and Final Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA published the final Water Quality Guidance for the Great
Lakes System (the Guidance) on March 23, 1995. Section 118(c) of the
Clean Water Act (CWA) requires the Great Lakes States of Illinois,
Indiana, Michigan, Minnesota, New York, Ohio, Pennsylvania and
Wisconsin to adopt within two years of publication of the final
Guidance (i.e., March 23, 1997) minimum water quality standards,
antidegradation policies and implementation procedures that are
consistent with the Guidance, and to submit them to EPA for review and
approval. Each of the Great Lakes States made those submissions.
Today, EPA is taking final action on the Guidance submissions of
the States of Michigan, Ohio, Indiana and Illinois. EPA's final action
consists of approving those elements of the States' submissions that
are consistent with the Guidance, disapproving those elements that are
not consistent with the Guidance, and specifying in a final rule the
elements of the Guidance that apply in the portion of each State within
the Great Lakes basin where a State either failed to adopt required
elements or adopted elements that are inconsistent with the Guidance.
EPA is separately taking final action on the Guidance submissions of
the States of Minnesota, New York, Pennsylvania and Wisconsin.
EFFECTIVE DATE: September 5, 2000.
ADDRESSES: The public docket for EPA's final actions with respect to
the Guidance submissions of the States of Michigan, Ohio, Indiana, and
Illinois is available for inspection and copying at U.S. EPA Region 5,
77 West Jackson Blvd., Chicago, IL 60604 by appointment only.
Appointments may be made by calling Mery Jackson-Willis (telephone 312-
886-3717).
FOR FURTHER INFORMATION CONTACT: Mark Morris (4301), U.S. EPA, Ariel
Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460
(202-260-0312); or Mery Jackson-Willis, U.S. EPA Region 5, 77 West
Jackson Blvd., Chicago, IL 60604 (312-353-3717).
SUPPLEMENTARY INFORMATION
I. Discussion
A. Potentially Affected Entities
Entities potentially affected by today's action are those
discharging pollutants to waters of the United States in the Great
Lakes System in the States of Michigan, Ohio, Indiana and Illinois.
Potentially affected categories and entities include:
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Examples of potentially affected
Category entities
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Industry........................... Industries discharging to waters
within the Great Lakes System as
defined in 40 CFR 132.2 in the
States identified above.
Municipalities..................... Publicly-owned treatment works
discharging to waters within the
Great Lakes System as defined in
40 CFR 132.2 in the States
identified above.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected. This table
lists the types of entities that EPA believes could 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 these
final actions, you should examine the definition of ``Great Lakes
System'' in 40 CFR 132.2 and examine 40 CFR 132.2 which describes the
Part 132 regulations. If you have any questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. Background
On March 23, 1995, EPA published the Guidance. See 60 FR 15366 (The
term ``Guidance'' as used below refers to the regulation promulgated by
EPA on March 23, 1995 and codified at 40 CFR Part 132). The Guidance
establishes 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 Guidance specifies
numeric criteria for selected pollutants to protect aquatic life,
wildlife and human health within the Great Lakes System and provides
methodologies to derive numeric criteria for additional pollutants
discharged to these waters. The Guidance also contains minimum
implementation procedures and an antidegradation policy.
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
[[Page 47865]]
and Steel Institute, et al. v. EPA (AISI), 115 F.3d 979 (D.C. Cir.
1997). The Court vacated the human health criterion for polychlorinated
biphenyls (PCBs) and the acute aquatic life criterion for selenium, and
the provisions of the Guidance ``insofar as it would eliminate mixing
zones for [BCCs] and impose [WQBELs] upon internal facility waste
streams.'' 115 F.3d at 985. On October 9, 1997, EPA published a notice
revoking the PCB human health criteria pursuant to the Court's
decision. 62 FR 52922. On April 23, 1998, EPA published a second notice
amending the 1995 Guidance to remove the BCC mixing zone provisions
from 40 CFR Part 132 (found in Procedure 3.C. of Appendix F) and to
remove language in the Pollutant Minimization Program provisions
(Procedure 8.D. of Appendix F) that might imply that permitting
authorities are required to impose WQBELs on internal waste streams or
to specify control measures to meet WQBELs. 63 FR 20107. On June 2,
2000, EPA published a third notice withdrawing the acute criteria for
selenium. 65 FR 35283.
40 CFR 132.4 requires the Great Lakes States to adopt water quality
standards, antidegradation policies, and implementation procedures for
waters within the Great Lakes System consistent with the Guidance or be
subject to EPA promulgation. 40 CFR 132.5(d) provides that, where a
State makes no submission to EPA, the Guidance shall apply to
discharges to waters in that State upon EPA's publication of a final
rule indicating the effective date of the Part 132 requirements in that
jurisdiction.
On July 1, 1997, the National Wildlife Federation filed suit
alleging that EPA had a non-discretionary duty to promulgate the
Guidance for any State that failed to adopt standards, policies and
procedures consistent with the Guidance. National Wildlife Federation
v. Browner, Civ. No. 97-1504-HHK (D.D.C.). EPA negotiated a consent
decree providing that the EPA Administrator must sign, by February 27,
1998, a Federal Register notice making Part 132 effective in any State
in the Great Lakes Basin that failed to make a submission to EPA by
that date under 40 CFR Part 132. However, all of the Great Lakes States
made complete submissions to EPA on or before the February deadline. On
March 2, April 14, April 20 and April 28, 1998, EPA published in the
Federal Register notices of its receipt of each of the States' Great
Lakes Guidance submissions and a solicitation of public comment on the
National Pollutant Discharge Elimination System (NPDES) portions of
those submissions. 63 FR 10221; 63 FR 18195; 63 FR 19490; 63 FR 23285.
40 CFR 132.5(f) provides that, once EPA completes its review of a
State's submission, it must either publish notice of approval of the
State's submission in the Federal Register or issue a letter notifying
the State that EPA has determined that all or part of its submission is
inconsistent with the CWA or the Guidance, and identify any changes
needed to obtain EPA approval. If EPA issues a letter to the State
making findings of inconsistencies, the State then has 90 days to make
the necessary changes. If the State fails to make the necessary
changes, 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 the Guidance that will apply to
discharges within the State.
On November 15, 1999, the National Wildlife Federation and the Lake
Michigan Federation filed suit alleging that EPA had a non-
discretionary duty to take action on the Great Lakes States' Guidance
submissions. National Wildlife Federation v. Browner, Civ. No. 99-3025-
HHK (D.D.C.). EPA negotiated a consent decree providing that EPA must
sign Federal Register notices by July 31, 2000, taking the action
required by 40 CFR 132.5 on the Guidance submissions of the States of
Illinois, Indiana, Michigan, Minnesota, Ohio and Pennsylvania; and
Federal Register notices by September 29, and October 31, 2000, taking
the action required by 40 CFR 132.5 on the Guidance submissions of the
States of New York and Wisconsin, respectively. Today's Federal
Register notice fulfills EPA's obligations under that Consent Decree
with respect to the States of Michigan, Ohio, Indiana and Illinois. EPA
is separately taking final action with respect to the States of
Minnesota, New York, Pennsylvania and Wisconsin. EPA notes that each of
the States' Guidance submissions may contain provisions that revise its
NPDES program or water quality standards in areas or with respect to
regulated entities not covered by the Guidance. EPA is not taking
action at this time to either approve or disapprove any such
provisions.
EPA has conducted its review of the States' submissions in
accordance with the requirements of Section 118(c)(2) of the CWA and 40
CFR Part 132. Section 118 requires that States adopt policies,
standards and procedures that are ``consistent with'' the Guidance. EPA
has interpreted the statutory term ``consistent with'' to mean ``as
protective as'' the corresponding requirements of the Guidance. Thus,
the Guidance gives States the flexibility to adopt requirements that
are not the same as the Guidance, provided that the State's provisions
afford at least as stringent a level of environmental protection as
that provided by the corresponding provision of the Guidance. In making
its evaluation, EPA has considered the language of each State's
standards, policies and procedures, as well as any additional
information provided by the State clarifying how it interprets or will
implement its provisions.
Where EPA has promulgated a final rule that identifies a provision
of the Guidance that shall apply in a State, EPA explains below its
reasons for concluding that the State failed to adopt requirements that
are consistent with the Guidance. Additional explanation of EPA's
conclusions are contained in EPA's correspondence with each State
(identified in relevant sections below) where EPA initially identified
inconsistencies in the States's submission. Notice of the availability
of each of these letters was published in the Federal Register and EPA
has considered all public comments received regarding any conclusions
as to whether a State had adopted provisions consistent with the
Guidance.
In this proceeding, EPA has reviewed the States' submissions to
determine their consistency with 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 those elements of the State submissions being
approved by EPA, EPA is approving those provisions as amendments to
each State's NPDES permitting program under Section 402 of the CWA and
as revisions to each State's water quality standards under Section 303
of the CWA. Today's notice identifies those approved elements.
Additional explanations of EPA's review of and conclusions regarding
the States' submissions, including the specific State provisions that
EPA is approving, are contained in the administrative record for
today's actions in documents prepared for each State entitled
``[particular State] Provisions Being Approved as Being Consistent With
the Guidance,'' ``Analysis of Whether [the particular State] Has
Adopted Requirements Consistent With the Guidance'' and ``Analysis of
Steps
[[Page 47866]]
Taken By [the particular State] in Response to EPA's 90-Day Letter.''
C. Today's Final Actions
1. The State of Michigan
On June 30 and August 16, 1999, EPA issued letters notifying the
Michigan Department of Environmental Quality (MDEQ) that, while the
State of Michigan had generally adopted requirements consistent with
the Guidance, EPA concluded that portions of the rules adopted by the
State were not consistent with corresponding provisions of the
Guidance. On September 14, 1999, EPA published in the Federal Register
a notice of and solicitation of public comment on its June 30 and
August 16, 1999, letters. 64 FR 49803. EPA has completed its review of
the State of Michigan's response to, and all public comments on, the
June 30 and August 16, 1999, letters, and has determined that, with one
exception described below, Michigan has adopted requirements consistent
with all aspects of the Guidance. Specifically, Michigan has adopted
requirements consistent with, and EPA is therefore approving those
elements of the State's submissions which correspond to: the
definitions in 40 CFR 132.2; the water quality criteria for the
protection of aquatic life, human health and wildlife in tables 1-4 of
Part 132; the methodologies for development of aquatic life criteria
and values, bioaccumulation factors, human health criteria and values
and wildlife criteria in Appendices B-D; the antidegradation policy in
Appendix E; and, with one exception, the implementation procedures in
Appendix F. As explained more fully below, Michigan has not adopted
requirements consistent with the provisions for determining reasonable
potential and establishing water quality based effluent limitations for
whole effluent toxicity set forth in Paragraph 1 of Section C, and
Section D, of Procedure 6 in Appendix F.
EPA's June 30, 1999, letter concluded that some of the provisions
that EPA is now approving authorized the State to act consistent with
the Guidance, but provided inadequate assurance that the State would
exercise its discretion consistent with the Guidance. Subsequent to
that letter, MDEQ provided additional materials, including an Addendum
to its Memorandum of Agreement with EPA regarding the State's approved
NPDES program in which MDEQ commits to always exercise its discretion
under those provisions in a manner consistent with the Guidance.
Pursuant to 40 CFR 123.44(c)(3) and 123.63(a)(4), the State is required
to comply with commitments made in its Memorandum of Agreement (MOA) or
risk EPA objection to permits and even program withdrawal. These
materials have demonstrated to EPA that the State will implement its
program (with one exception identified below) consistent with the
Guidance. The specific provisions that EPA is approving, and EPA's full
rationale for approving these provisions, are set forth in the
documents entitled ``Michigan Provisions Approved as Being Consistent
With the Guidance,'' ``Analysis of Whether Michigan Has Adopted
Requirements Consistent With the Guidance'' and ``Analysis of Steps
Taken By Michigan in Response to EPA's 90-Day Letter'' included in the
record for this action.
EPA has determined that Michigan's provisions at R 323.1219(4) for
determining reasonable potential for a discharge to cause or contribute
to an exceedance of Michigan's whole effluent toxicity requirements are
inconsistent with Section D of Procedure 6 in Appendix F to 40 CFR Part
132. The Guidance procedure for evaluating reasonable potential for
whole effluent toxicity (WET) is based on comparing a projected 95th
percentile WET value at a 95 percent confidence level with the acute
and chronic WET criteria after accounting for any available dilution.
This conservative approach is designed to ensure that WQBELs are
imposed when there is a reasonable potential for toxicity, taking into
account the effluent variability and the size of the data set, even if
no toxicity has actually been observed.
In evaluating State reasonable potential procedures for WET, EPA
looked for an equivalent level of protection to that provided by the
Guidance procedure. In the case of a procedure to determine when a
WQBEL is needed, one important consideration is whether the alternative
procedure would indicate the need for a WQBEL in similar situations to
those that would trigger a WQBEL under Section D of Procedure 6.
In most cases where there is quantifiable effluent data, EPA's
procedure will project an effluent value greater than the maximum
observed value to characterize the reasonable worst case effluent.
Michigan's procedures for determining WET reasonable potential are
based on comparisons of preliminary effluent limits to average effluent
toxicity values (with further possible adjustment based on the
frequency of failures), rather than comparisons of preliminary effluent
limits to maximum effluent toxicity values multiplied by factors to
account for effluent variability and size of the data set as required
by Paragraph D of Procedure 6 of the Guidance. Michigan's use of the
average effluent toxicity value will, except in highly unusual
circumstances, be lower than the maximum toxicity value multiplied by
the factors to account for effluent variability set forth in the
Guidance. Indeed, in certain circumstances, Michigan's procedure would
not require a reasonable potential finding even where testing has shown
actual, observed toxicity. This is clearly inconsistent with Section D
of Procedure 6.
EPA notes that Paragraph 1 of Section C of Procedure 6 requires
that WQBELs be imposed whenever the WET reasonable potential procedures
in Section D of Procedure 6 show that there is reasonable potential
that a discharge will cause or contribute to causing an excursion above
a State's numeric WET criterion or narrative criterion. Michigan's R.
323.1219(2) also provides that WQBELs shall be imposed whenever the WET
reasonable potential procedures in Michigan's R. 323.1219(4) show
reasonable potential. As discussed above, however, Michigan's WET
reasonable potential rules are not consistent with the Guidance.
Because R.323.1219(2) links establishment of WQBELs for WET to a
finding of reasonable potential under procedures that EPA has
determined are not consistent with Section D of Procedure 6 (i.e., the
procedures in R. 323.1219(4)), R.323.1219(2) is not consistent with
Paragraph 1 of Section C of Procedure 6.
EPA, therefore, disapproves of R. 323.1219 (2) and (4), and has
determined that Paragraph 1 of Section C, and Section D, of Procedure 6
in Appendix F to 40 CFR Part 132 shall apply for discharges into the
Great Lakes System in the State of Michigan.
EPA understands that MDEQ intends to initiate rulemaking to revise
its regulations to insure that the State's WET reasonable potential
provisions are consistent with the Guidance. EPA will work closely with
MDEQ to insure that its revised regulations will be consistent with the
Guidance. MDEQ will then submit its revised regulations to EPA for
approval pursuant to 40 CFR 123.62 as a revision to its NPDES program
and, upon EPA approval of those revisions, EPA will revise its
regulations so that Paragraph 1 of Section C, and Section D, of
Procedure 6 in Appendix F to 40 CFR Part 132 will no longer apply to
discharges into the Great Lakes System in the State of Michigan. EPA
also notes
[[Page 47867]]
that, based upon Michigan's adoption of criteria consistent with the
Guidance, EPA intends, in a separate action in the future, to remove
Michigan from the list of States specified at 40 CFR 131.36 for which
EPA has promulgated specific criteria under Section 304(a) of the Clean
Water Act.
2. The State of Ohio
On June 30 and August 16, 1999, EPA issued letters notifying the
Ohio Environmental Protection Agency (OEPA) that, while the State of
Ohio had generally adopted requirements consistent with the Guidance,
EPA concluded that portions of the rules adopted by the State were not
consistent with corresponding provisions of the Guidance. On September
14, 1999, EPA published in the Federal Register a notice of and
solicitation of public comment on its June 30 and August 16, 1999,
letters. 64 FR 49803. EPA has completed its review of the State of
Ohio's response to, and all public comments on, the June 30 and August
16, 1999, letters, and has determined that, with only one exception
described below, Ohio has adopted requirements consistent with all
aspects of the Guidance. Specifically, Ohio has adopted requirements
consistent with and EPA is therefore approving those elements of the
State's submissions which correspond to, the definitions in 40 CFR
132.2; the water quality criteria for the protection of aquatic life,
human health and wildlife in tables 1-4 of Part 132; the methodologies
for development of aquatic life criteria and values, bioaccumulation
factors, human health criteria and values and wildlife criteria in
Appendices B-D; the antidegradation policy in Appendix E; and, with one
exception, the implementation procedures in Appendix F. As explained
more fully below, Ohio has not adopted requirements consistent with the
provisions for determining reasonable potential and establishing water
quality based effluent limitations for whole effluent toxicity set
forth in Paragraph 1 of Section C, and Section D, of Procedure 6 in
Appendix F.
EPA's June 30, 1999, letter concluded that some of the provisions
that EPA is now approving authorized the State to act consistent with
the Guidance, but provided inadequate assurance that the State would
exercise its discretion consistent with the Guidance. Subsequent to
that letter, OEPA provided additional materials, including an Addendum
to its Memorandum of Agreement with EPA regarding the State's approved
NPDES program in which OEPA commits to always exercise its discretion
under those provisions in a manner consistent with the Guidance.
Pursuant to 40 CFR 123.44(c)(3) and 123.63(a)(4), the State is required
to comply with commitments made in its MOA or risk EPA objection to
permits and even program withdrawal. These materials have demonstrated
to EPA that the State will implement its program (with one exception
identified below) consistent with the Guidance. The specific provisions
that EPA is approving, and EPA's full rationale for approving these
provisions, are set forth in the documents entitled ``Ohio Provisions
Approved as Being Consistent With the Guidance,'' ``Analysis of Whether
Ohio Has Adopted Requirements Consistent With the Guidance'' and
``Analysis of Steps Taken By Ohio in Response to EPA's 90-Day Letter.''
EPA has determined that Ohio's procedure at OAC 3745-33-07(B) for
determining reasonable potential for a discharge to cause or contribute
to an exceedance of Ohio's whole effluent toxicity requirements are
inconsistent with Section D of Procedure 6 in Appendix F to 40 CFR Part
132. Ohio's procedure is based on consideration of a wide range of
available data, including the number of tests performed, the magnitude
and frequency of toxicity exhibited by the effluent and available
biological data. Ohio's procedure is not consistent with the Guidance
because rather than provide safety factors to be applied to observed
WET data as does Procedure 6, they apply factors that devalue observed
WET test results and would not require a WQBEL even where WET test
results show observed levels of unacceptable toxicity.
Specifically, where biological data are unavailable to corroborate
effluent toxicity data, Ohio's procedures generally do not require
establishment of a WQBEL unless the maximum observed toxicity value is
at least three times greater than the expected toxicity limit, the
average toxicity exceeds one-third the expected effluent limit, and
more than 30 percent of the test results exceed a projected wasteload
allocation. Where biological data are present to corroborate effluent
data that a toxicity problem exists, Ohio's procedure would allow a
permit writer to consider WET data at full value (i.e., compare the
maximum observed WET result to the expected toxicity limit), but it
also requires the permit writer, in determining whether a WQBEL is
needed, to weigh factors related to a minimum frequency of actual
exceedances and a comparison of the average of WET test results to a
percentage of the expected toxicity limit similar to those that must be
considered when only WET data are available. Because these procedures
devalue toxicity results and fail to require a limit even in cases of
observed toxicity, Ohio's procedure would not require a reasonable
potential finding even where testing has showed actual, observed
toxicity. This is clearly inconsistent with Section D of Procedure 6.
As discussed above with respect to Michigan, Paragraph 1 of Section
C of Procedure 6 requires that WQBELs be imposed whenever the WET
reasonable potential procedures in Section D of Procedure 6 show that
there is reasonable potential that a discharge will cause or contribute
to causing an excursion above a State's numeric WET criterion or
narrative criterion. Ohio's rules at OAC 3745-33-07(B)(2) provide that
WQBELs shall be imposed whenever the WET reasonable potential
procedures in Ohio's rules at OAC 3745-33-07(B) show reasonable
potential. Because OAC 3745-33-07(B)(2) links establishment of WQBELs
for WET to a finding of reasonable potential under procedures that EPA
has determined are not consistent with Section D of Procedure 6 (i.e.,
the procedures in OAC 3745-33-07(B)), OAC 3745-33-07(B)(2) is not
consistent with Paragraph 1 of Section C of Procedure 6.
EPA, therefore, disapproves of OAC 3745-33-07(B), and has
determined that Paragraph 1 of Section C, and Section D, of Procedure 6
in Appendix F to 40 CFR Part 132 shall apply for discharges into the
Great Lakes System in the State of Ohio.
3. The State of Indiana
On August 16, 1999, EPA issued a letter notifying the Indiana
Department of Environmental Management (IDEM) that, while the State of
Indiana had generally adopted requirements consistent with the
Guidance, EPA concluded that portions of the rules adopted by the State
were not consistent with corresponding provisions of the Guidance. On
September 14, 1999, EPA published in the Federal Register a notice of
and solicitation of public comment on its August 16, 1999, letter. 64
FR 49803. EPA has completed its review of the State of Indiana's
response to, and all public comments on, the August 16, 1999, letter,
and has determined that, with the exceptions described below, Indiana
has adopted requirements consistent with all aspects of the Guidance.
Specifically, Indiana has adopted requirements consistent with, and EPA
is therefore approving those elements of the State's submissions which
correspond to, the definitions in 40 CFR 132.2; the water
[[Page 47868]]
quality criteria for the protection of aquatic life, human health and
wildlife in tables 1-4 of Part 132; the methodologies for development
of aquatic life criteria and values, bioaccumulation factors, human
health criteria and values and wildlife criteria in Appendices B-D; the
antidegradation policy in Appendix E; and, with the exceptions
described below, the implementation procedures in Appendix F. As
explained more fully below, Indiana has not adopted requirements
consistent with the criteria for granting variances set forth in
Paragraph 1 of Section C of Procedure 2 in Appendix F, requirements for
including WQBELs in permits set forth in Paragraph 2 of Section F of
Procedure 5 in Appendix F, and the provisions for determining
reasonable potential and establishing water quality based effluent
limitations for whole effluent toxicity set forth in Paragraph 1 of
Section C, and Section D, of Procedure 6 in Appendix F.
EPA's August 16, 1999, letter concluded that some of the provisions
that EPA is now approving were inconsistent with the Guidance because
authorized the State to act consistent with the Guidance, but provided
inadequate assurance that the State would exercise its discretion
consistent with the Guidance. Subsequent to that letter, IDEM provided
additional materials, including an Addendum to its Memorandum of
Agreement with EPA regarding the State's approved NPDES program in
which IDEM commits to always exercise its discretion under those
provisions in a manner consistent with the Guidance. Pursuant to 40 CFR
123.44(c)(3) and 123.63(a)(4), the State is required to comply with
commitments made in its MOA or risk EPA objection to permits and even
program withdrawal. These materials have demonstrated to EPA that the
State will implement its program (with exceptions identified below)
consistent with the Guidance. The specific provisions that EPA is
approving, and EPA's full rationale for approving these provisions, are
set forth in the documents entitled ``Indiana Provisions Approved as
Being Consistent With the Guidance,'' ``Analysis of Whether Indiana Has
Adopted Requirements Consistent With the Guidance'' and ``Analysis of
Steps Taken By Indiana in Response to EPA's 90-Day Letter.''
EPA has determined that Indiana's provisions at 327 IAC 2-1.5-
17(b), which allow IDEM to grant a variance from water quality
standards if the permit applicant demonstrates that failure to grant
the variance ``will cause an undue hardship or burden upon the
applicant,'' are inconsistent with the criteria for granting variances
set forth at Paragraph 1 of Section C of Procedure 2 in Appendix F to
40 CFR Part 132. Specifically, the Guidance only allows variances based
upon economic considerations if the failure to grant the variance
``would result in substantial and widespread economic and social
impact.'' EPA believes, and Indiana agrees, that it is possible that a
failure to grant a variance could result in ``an undue hardship or
burden upon [a particular discharger]'' without also causing
``substantial and widespread economic and social impact.''
Consequently, Indiana's provisions allow variances to be issued that
relax water quality standards, and consequently permit conditions to
meet standards, in instances where such a loosening of applicable
requirements would not be permitted by the Guidance. Therefore, these
provisions of Indiana's submission are not consistent with the
Guidance.
EPA, therefore, disapproves of 327 IAC 2-1.5-17(b), and has
determined that Paragraph 1 of Section C of Procedure 2 in Appendix F
to 40 CFR Part 132 shall apply for discharges into the Great Lakes
System in the State of Indiana. EPA notes that Indiana's ``undue
hardship or burden upon the applicant'' criterion for granting a
variance, as applied to municipal dischargers, may often be consistent
with the ``substantial and widespread social and economic impact''
criterion in Paragraph 1.f of Section C of Procedure 2 in Appendix F to
40 CFR Part 132. This is because an undue hardship on the discharger
(i.e., the community served by the municipal discharger) may also
constitute widespread social and economic impact. Consequently, EPA
believes that specifying that Paragraph 1 of Section C of Procedure 2
in Appendix F to 40 CFR Part 132 applies to discharges into the Great
Lakes System in the State of Indiana may, as a practical matter, not
have a significant effect on the granting of variances for
municipalities in Indiana. In any case, under today's rule, Indiana may
only grant variances that meet the criteria specified in Procedure 2 in
Appendix F to 40 CFR Part 132.
EPA has further determined that Indiana's provisions at 327 IAC 5-
3-4.1(b)(1), which prevent Indiana from including necessary WQBELs in
permits simply because a variance application has been submitted, is
inconsistent with Paragraph 2 of Section F of Procedure 5 in Appendix F
to 40 CFR Part 132 and with 40 CFR 122.44(d). Under those federal
provisions, WQBELs must be included in NPDES permits whenever there is
reasonable potential that a discharge will cause or contribute to
causing nonattainment of an existing water quality standard. The mere
filing of a variance application does not change a water quality
standard. Consequently, 327 IAC 5-3-4.1(b)(1), which prevents Indiana
from including WQBELs when there is reasonable potential for a
discharge to cause or contribute to causing nonattainment of an
existing water quality standard where a permittee has applied for a
variance from that standard, is not consistent with the Guidance and 40
CFR 122.44(d).
EPA, therefore, disapproves of 327 IAC 5-3-4.1(b)(1), and has
determined that Paragraph 2 of Section F of Procedure 5 in Appendix F
to 40 CFR Part 132 shall apply for discharges into the Great Lakes
System in the State of Indiana.
EPA also has determined that Indiana's provisions at 327 IAC 5-2-
11.5(c)(1) for determining reasonable potential for a discharge to
cause or contribute to an exceedance of Indiana's WET requirements are
inconsistent with Section D of Procedure 6 in Appendix F to 40 CFR Part
132.
As described above with respect to Michigan, EPA's procedure, in
most cases, will project an effluent value greater than the maximum
observed value to characterize the reasonable worst case effluent.
Indiana's procedure, on the other hand, uses the mean value of effluent
data, further ``discounted'' by the fraction of tests exceeding the
wasteload allocation. This both lessens the impact of observed toxicity
on the calculation and fails to account for the reasonable possibility
that effluent toxicity may exceed the level observed in the tests
because sampling did not coincide with periods of maximum toxicity. An
analysis of Indiana's procedure shows that those procedures often do
not require a limit on WET where one would be required under the
procedures in the Guidance. In fact, in some cases, Indiana's procedure
would not require imposition of a WQBEL even where testing has showed
actual, observed toxicity. This is clearly inconsistent with Section D
of Procedure 6.
As discussed above with respect to Michigan and Ohio, Paragraph 1
of Section C of Procedure 6 requires that WQBELs be imposed whenever
the WET reasonable potential procedures in Section D of Procedure 6
show that there is reasonable potential that a discharge will cause or
contribute to causing an excursion above a State's numeric WET
criterion or narrative criterion. Indiana's rules at 327 IAC 5-
[[Page 47869]]
2-11.5(c), which specify when the permitting authority must include a
WQBEL for WET, limits the permitting authority to using the WET
reasonable potential procedures in Indiana's rules at 327 IAC 5-2-
11.5(c)(1). Because 327 IAC 5-2-11.5(c) links establishment of WQBELs
for WET to the Indiana WET reasonable potential procedures that EPA has
determined are not consistent with Section D of Procedure 6 (i.e., the
procedures in 327 IAC 5-2-11.5(c)(1)), 327 IAC 5-2-11.5(c) is not
consistent with Paragraph 1 of Section C of Procedure 6.
EPA, therefore, disapproves of 327 IAC 5-2-11.5(c), and has
determined that Paragraph 1 of Section C, and Section D, of Procedure 6
in Appendix F to 40 CFR Part 132 shall apply for discharges into the
Great Lakes System in the State of Indiana.
4. The State of Illinois
On November 12, 1999, EPA issued a letter notifying the Illinois
Environmental Protection Agency (IEPA) that, while the State of
Illinois had generally adopted requirements consistent with the
Guidance, EPA concluded that portions of the State's rules were not
consistent with corresponding provisions of the Guidance. On December
9, 1999, EPA published in the Federal Register a notice of and
solicitation of public comment on its November 12, 1999, letter. 64 FR
69019. EPA has completed its review of the State of Illinois' response
to, and all public comments on, the November 12, 1999, letter, and has
determined that, with one exception, Illinois has adopted requirements
consistent with all aspects of the Guidance. Specifically, Illinois has
adopted requirements consistent with, and EPA is therefore approving
those elements of the State's submissions which correspond to, the
definitions in 40 CFR 132.2; the water quality criteria for the
protection of aquatic life, human health and wildlife in tables 1-4 of
Part 132; the methodologies for development of aquatic life criteria
and values, bioaccumulation factors, human health criteria and values
and wildlife criteria in Appendices B--D; the antidegradation policy in
Appendix E; and, with one exception described below, the implementation
procedures in Appendix F. As explained more fully below, Illinois has
not adopted requirements consistent with the requirements governing
total maximum daily loads in Procedure 3 in Appendix F.
EPA's November 12, 1999, letter, had concluded that some of the
provisions that EPA is now approving were inconsistent with the
Guidance because they authorized the State to act consistent with the
Guidance, but provided inadequate assurance that the State would
exercise its discretion consistent with the Guidance. Subsequent to
that letter, Illinois provided additional materials, including an
Addendum to its Memorandum of Agreement with EPA regarding the State's
approved NPDES program in which IEPA commits to always exercise its
discretion under those provisions in a manner consistent with the
Guidance. Pursuant to 40 CFR 123.44(c)(3) and 123.63(a)(4), the State
is required to comply with commitments made in its MOA or risk EPA
objection to permits and even program withdrawal. These materials have
demonstrated to EPA that the State will implement its program (with one
exception identified below) consistent with the Guidance. The specific
provisions that EPA is approving, and EPA's full rationale for
approving these provisions, are set forth in the documents entitled
``Illinois Provisions Approved as Being Consistent With the Guidance,''
``Analysis of Whether Illinois Has Adopted Requirements Consistent With
the Guidance'' and ``Analysis of Steps Taken By Illinois in Response to
EPA's 90-Day Letter.''
EPA has determined that Procedure 3 in Appendix F to 40 CFR Part
132 shall apply with regard to development of total maximum daily loads
(TMDLs) for the Great Lakes System in the State of Illinois because
Illinois decided not to adopt TMDL provisions for the Great Lakes
System. Illinois did not adopt such provisions because EPA has
indicated that it will be developing a TMDL for Lake Michigan and so
Illinois does not believe that the State should be required to develop
any TMDLs for the Great Lakes System. Today's action ensures that the
provisions of Procedure 3 in Appendix F will apply in developing TMDLs
in the Great Lakes System in the State of Illinois, regardless of who
develops the TMDL. EPA notes that this promulgation has no effect on
the reasonable potential procedures at 35 Ill. Adm. Code 309.141(h)(4),
which EPA approves as being consistent with the reasonable potential
procedures in Procedure 5 in Appendix F to 40 CFR Part 132, and which
therefore apply in the Great Lakes System in the State of Illinois for
purposes of developing preliminary effluent limitations in making
reasonable potential determinations.
As noted above, EPA, in this notice, is not taking action to
approve or disapprove portions of the States' Guidance submissions
pertaining to NPDES permitting and water quality standards issues that
are not addressed by the Guidance. While EPA is not taking action under
Section 118 with regard to the following issue, EPA nevertheless wishes
to describe its understanding with regard to one aspect of Illinois'
submission that is not addressed by the Guidance. Specifically,
Illinois' rules at 35 Ill. Adm. Code 352.700(a)(2) provide that, when a
WQBEL is below the level of quantification, ``[t]he analytical method
adopted by the [Illinois Pollution Control] Board and specified in the
permit shall be the method used for compliance assessment including
enforcement actions.''
EPA is concerned about this language because EPA believes, as a
matter of law, that any credible evidence (subject to generally
applicable rules of evidence), not just evidence generated by use of an
analytical method specified in a permit, can be used in an enforcement
action to establish that a violation of an effluent limitation has
occurred. IEPA has clarified that 35 Ill. Adm. Code 352.700(a)(2) is
only a limitation on the types of evidence that IEPA may use in an
enforcement action; it does not place limits on the types of evidence
that the federal government or third parties can use in an enforcement
action or citizen suit. IEPA also has clarified that it does not intend
to include the language of 35 Ill. Adm. Code 352.700(a)(2) in NPDES
permits. Finally, IEPA is considering revising its rules to address
EPA's concerns. While EPA is not, at this time, taking action to either
approve or disapprove 35 Ill. Adm. Code 352.700(a)(2) as a modification
of Illinois NPDES program, EPA notes that revisions to State NPDES
programs do not become effective until approved by EPA. 40 CFR
123.62(b)(4).
D. Public Comments
EPA received a large number of public comments in response to its
Federal Register notices of its receipt of the States' Guidance
submissions and of the availability of EPA's letters to the States of
Michigan, Ohio, Indiana and Illinois regarding their Guidance
submissions. EPA has responded to each of those comments in a document
entitled ``EPA Responses to Comments Regarding the Great Lakes Guidance
Submissions of the States of Michigan, Ohio, Indiana and Illinois' that
has been included as part of the record in this matter. The following
is a summary of EPA's responses to the most significant of these
comments.
Comment: A number of commenters asserted that EPA's regulatory
[[Page 47870]]
determinations are being made without affected parties having any
chance to review the Agency's reasoning or to raise issues as to the
validity of that reasoning, in violation of the Administrative
Procedure Act and EPA's public participation regulations at 40 CFR 25.
Response: The final rule being promulgated today makes certain
provisions of 40 CFR Part 132 applicable to discharges in certain
States within the Great Lakes System. Those provisions were adopted
after publication of a proposed rule for public comment. See 58 FR
20802 (April 16, 1993). EPA is not modifying those provisions, but
merely making them effective in accordance with 40 CFR 132.5(f)(2).
Therefore, the public had a full opportunity to comment on the contents
of today's rule. Moreover, public comment was also received regarding
EPA's review of the State submissions. EPA provided public notice of
the availability of, and solicited comment on, the NPDES portions of
these States' Guidance submissions in Federal Register notices dated
March 2, 1998 and April 28, 1998. 63 FR 10221; 63 FR 23285. In Federal
Register notices dated September 14, 1999, and December 9, 1999, EPA
subsequently provided notice of the availability of letters to the
States of Michigan, Ohio, Indiana and Illinois in which EPA provided
(a) detailed explanations of the bases for its findings that certain
States had not adopted provisions consistent with certain provisions of
the Great Lakes Guidance and (b) its preliminary conclusions that, with
the exception of those findings, the States had adopted provisions
consistent with the Guidance. 64 FR 49803, 64 FR 69019. EPA also
solicited comment on all aspects of those letters, and has considered
and responded to all comments received before taking today's final
actions. Consequently, EPA has complied with all applicable public
participation requirements.
Comment: A number of commenters raised questions regarding the
basis for EPA's decisions to approve a State's provisions pertaining to
a specific element of the Guidance where the State's provisions, on
their face, do not plainly require the State's permitting or water
quality standards authority to act in a manner consistent with the
Guidance.
Response: EPA believes that these commenters' view is both
unreasonable and contrary to EPA regulations governing the Agency's
review of the State submissions. EPA regulations required each State to
submit to EPA not only the criteria, methodologies, policies and
procedures developed pursuant to the Guidance but also ``general
information which will aid EPA in determining whether the criteria,
methodologies, policies and procedures are consistent with'' the Act
and the Guidance, and ``information on general policies which may
affect their application and administration.'' 40 CFR 132.5(b)(1) and
(4). Consistent with these regulations, EPA has not limited its review
to solely the plain language of each State's criteria, methodologies,
policies and procedures, but has considered the totality of the State's
submission in determining whether it was consistent with the Guidance,
including information regarding interpretation or implementation of a
State's criteria, methodologies, policies and procedures.
As noted previously, the States were not required to adopt
requirements that are identical to the Guidance. States' submissions
can--and do--differ from the Guidance, and this difference is
permissible provided the State's approach is consistent with (i.e., as
protective as) the Guidance. Given the complexity of the States'
submissions and EPA's review, it is not surprising that particular
State provisions may be amenable to more than one interpretation or
manner of application. Where a State's provision was either unclear or
authorized the State to act consistent with the Guidance, but there was
uncertainty as to whether the State would actually exercise its
discretion consistent with the Guidance, EPA considered supplementary
information to aid in determining the meaning and protectiveness of the
State's provision vis-a-vis the Guidance. This information included,
for example, States' legal interpretations of its criteria,
methodologies, policies and procedures, or a State's position on how it
would implement State law. For each of the States, clarification on the
manner in which the State would exercise its discretion was provided on
some issues in an addendum of the MOA with EPA governing its
administration of the NPDES program. See 40 CFR 123.24. This MOA
governs how each State will administer its NPDES program, and failure
to comply with the terms of the MOA is grounds for EPA objection to a
State permit and withdrawal of State's NPDES program. See 40 CFR
123.44(c)(3) and 123.63(a)(4).
Commenters suggest that EPA is required to ignore such
supplementary information in its review and appear to believe that,
simply because a State provision may be ambiguous or grants some
flexibility to the State, EPA has no choice but to disapprove the
provision as being inconsistent with the Guidance. Nothing in EPA's
regulations or in the CWA compels such a cabined exercise of judgment
by EPA. Where the totality of a State's submission demonstrates that
the State will administer its program consistent with the Guidance, EPA
believes that it is appropriate to approve the submission.
Comment: A commenter disagrees that Indiana's variance procedures,
which allow Indiana to grant variances based upon a finding that
compliance with the existing water quality standard would have an
``undue hardship or burden upon the applicant,'' is not consistent with
the Guidance requirement that variances only be granted where
compliance with the existing standard ``would result in widespread
economic and social impact.'' According to the commenter, Indiana has
the ability to obtain and consider information regarding societal
impacts in deciding whether to grant a variance and so Indiana's
provisions are consistent with the Guidance. The commenter also argues
that, even if Indiana's provisions are not consistent with the
Guidance, EPA can apply its ``substantial and widespread'' test in
deciding whether to approve of any variance that Indiana decides to
grant under its applicant-specific test.
Response: The fact that Indiana ``has the ability to obtain and
consider information regarding societal impacts in deciding whether to
grant a variance'' does not change the fact that Indiana law requires
that variances be allowed in circumstances where the Guidance does not
allow for variances to be granted: i.e., where the failure to grant the
variance would have an ``undue hardship or burden upon the applicant''
but not cause ``widespread social and economic impact.'' Indiana's
variance provisions, therefore, are not consistent with the Guidance.
With regard to the comment that EPA can apply the Guidance variance
procedures in reviewing any variances that Indiana decides to grant, 40
CFR 132.4(a) requires that States ``adopt requirements * * * that are
consistent with * * * [t]he Implementation Procedures in Appendix F [to
40 CFR Part 132].'' The affirmative obligation imposed on States by 40
CFR 132.4(a) to adopt such requirements would be rendered meaningless
if EPA simply relied upon its approval/disapproval authorities as a
basis to approve a State's provisions where the State does not
interpret or implement a State provision in a manner that would be
consistent with the Guidance.
Comment: One commenter believes that Indiana's provisions
prohibiting it
[[Page 47871]]
from imposing necessary WQBELs in NPDES permits simply because a
variance application is pending are consistent with the Guidance.
According to the commenter, ``EPA has no authority, based on
``protectiveness,'' to demand that the State issue a limit that will
later need to be withdrawn because a variance has been granted.
Moreover, * * * [u]nder the EPA rule, the State would be fully
authorized to issue a limit while a variance application is pending
and, at the same time, issue a compliance schedule that applies to that
limit, so that the limit would not take effect until after the variance
application is either granted * * * or denied. That would achieve
exactly the same end as the process that is currently contained in the
Indiana rules.''
Response: Paragraph 2 of Section F of Procedure 5 in Appendix F to
40 CFR Part 132 and 40 CFR 122.44(d)(1) both require imposition of
water quality based effluent limits whenever there is reasonable
potential for a discharge to cause or contribute to causing
nonattainment of existing water quality standards. Nothing in those
provisions, or anywhere else in the Clean Water Act or in EPA's
regulations, creates an exception to this requirement to account for
the fact that existing water quality standards may eventually change.
Consequently, to the extent that 327 IAC 5-3-4.1(b)(1) prohibits
Indiana from including WQBELs where there is reasonable potential that
a discharge will cause or contribute to an exceedance of a standard
simply because someone has merely requested a change to Indiana's
existing water quality standards (but the standard has not yet been
modified by issuance of the variance), it is inconsistent with
Paragraph F.2 of Procedure 5 and 40 CFR 122.44(d)(1).
The commenter is correct that Indiana might be able to accomplish
the same result in certain situations by granting the permittee a
compliance schedule. However, under the Guidance, any such compliance
schedule would have to meet the requirements governing compliance
schedules in Procedure 9 in Appendix F to 40 CFR Part 132 (Indiana's
Great Lakes compliance schedule provisions, which EPA is approving as
being consistent with Procedure 9, are at 327 IAC 5-2-12.1). 327 IAC 5-
3-4.1(b)(1), which prohibits Indiana from including WQBELs when a
variance application has been applied for, is not limited only to
situations when the requirements governing compliance schedules in
Procedure 9 and 327 IAC 5-2-12.1 are met. Thus, 327 IAC 5-3-4.1(b) is
not consistent with the Guidance.
Comment: A number of commenters believe that EPA should disapprove
Indiana's rule at 327 IAC 5-2-11.7, which the commenters assert allows
Indiana to ``downgrade'' Indiana's historically held third tier,
highest quality waters that were identified in the 1990 water quality
standards approved by EPA as Outstanding State Resource Waters, which
are Indiana's equivalent to Outstanding Natural Resource Waters (ONRW).
These commenters also believe that EPA should disapprove Indiana's
Guidance rules regarding mixing zones in Lake Michigan at 327 IAC 5-2-
11.4(b)(2)(A) and (B), (b)4)(A)(iii) and (b)(4)(C), and (b)(5)-(7)
because these sections allow a mixing zone in Lake Michigan contrary to
the statewide ban on mixing zones in lakes at 327 IAC 2-1-4(c) of
Indiana's EPA approved 1990 rules. The commenters believe that these
changes constitute ``downgrading'' Indiana's standards for Lake
Michigan.
Response: The term ``downgrading'' generally refers to a decision
to modify a designated use where the current designated use cannot be
attained for one of the reasons specified at 40 CFR 131.10(g). EPA's
regulations at 40 CFR 131.10 place significant restrictions on a
State's ability to engage in such ``downgrading.''
EPA's regulations at 40 CFR 131.12 and Appendix E to 40 CFR Part
132 describe various levels of antidegradation protections that must be
afforded to water bodies. These various levels of protection, which are
known as ``Tier I,'' ``Tier II'' and ``Tier III,'' are not ``use
designations,'' and so the restrictions placed on the States' ability
to modify ``designated uses'' set forth at 40 CFR 131.10 do not apply
to State decisions with regard to which ``tier'' of antidegradation
protection should be afforded to particular water bodies. EPA further
notes that EPA's regulations leave the question of whether a particular
water body constitutes a ``Tier III'' water (or ONRW) to the States'
discretion. Consequently, EPA does not agree that it should disapprove
Indiana's antidegradation provisions.
With regard to the commenters' concerns regarding Indiana's mixing
zone provisions, the availability of mixing zones does not represent a
change or ``downgrade'' in use and thus is not subject to 40 CFR
131.10. Nevertheless, while States generally have discretion to change
mixing zone requirements, the States' mixing zone requirements must
still ensure attainment of designated uses and, in the case of
requirements applicable to the Great Lakes System, must be consistent
with the Guidance. EPA believes that Indiana's mixing zone requirements
do insure attainment of designated uses and are consistent with the
Guidance. Consequently, EPA is approving those provisions of Indiana's
rules, notwithstanding the possibility that those provisions of
Indiana's rules may have relaxed Indiana's previously adopted mixing
zone provisions.
Comment: Citing a May 4, 1999, letter from EPA to Indiana, a number
of commenters believe that EPA should disapprove certain exemptions in
Indiana's antidegradation rule at 327 IAC 5-2-11.7(c).
Response: The Guidance specifies certain minimum requirements which
all Great Lakes States must include in their antidegradation policies
and implementation procedures that are specific to protecting the
waters of the Great Lakes System. Specifically, the Guidance
establishes minimum requirements for States' antidegradation policies
which are largely identical to those of 40 CFR 131.12, and
implementation requirements that are specific to BCCs. Indiana's policy
and implementation procedures are consistent with the requirements
identified in the Guidance. To the extent that Indiana's revised rules
contain changes addressing other elements of the State's
antidegradation policy not addressed by the Guidance (i.e., procedures
addressing non-BCCs), those elements are outside the scope of this
action and will be addressed in a separate proceeding.
Comment: EPA received numerous comments asserting that Section D of
Procedure 6 in Appendix F, the WET reasonable potential procedure, was
not valid because not all WET data sets appear to be lognormally
distributed (as readily acknowledged by EPA). Based on this
observation, the commenters conclude that Section D of Procedure 6 is
scientifically indefensible and, therefore, EPA must accept the other
procedures submitted by the States of Ohio, Michigan, and Indiana.
These commenters further assert that EPA has no basis for disapproving
these State procedures as not being consistent with the Guidance. (The
same comments were made about the Illinois procedure even though it is
based primarily on the Guidance procedure and is being approved by EPA.
Accordingly, the discussion below does not relate to Illinois.) EPA
believes that these commenters misunderstand the scope of the
scientific defensibility provision of the Guidance. They also fail to
refute EPA's conclusion that Ohio's,
[[Page 47872]]
Michigan's and Indiana's procedures are not consistent with the
Guidance.
The Guidance procedure for using effluent data to calculate a
projected effluent quality (PEQ) for determining when a WET limit is
needed Section D of Procedure 6 estimates an upper bound effluent value
(95th percentile) by multiplying the maximum observed effluent value
(expressed as toxic units) by a factor designed to take into account
long-term effluent variability and the number of data available to make
the projection. The size of the multiplying factor is determined by the
number of data points in the data set, the variability of the effluent,
the assumed distribution of the data, and the chosen confidence level
for capturing the true 95th percentile (95 percent in the case of Table
F6-1). Except in rare cases where there are large amounts of data, the
projected 95th percentile will be greater than maximum observed
effluent value.
Some commenters contended that Section D of Procedure 6--which uses
multiplying factors that are based on the assumption that data are
lognormally distributed--is scientifically indefensible within the
meaning of 40 CFR 132.4(h), and that the States are therefore free to
adopt other approaches. Section 132.4(h) allows States to adopt
alternative methodologies or procedures different from those contained
in the Guidance where a State demonstrates that a methodology or
procedure is not scientifically defensible. EPA included this
flexibility to address pollutants identified in the future for which
some of the methodologies or procedures may not be technically
appropriate. 58 Fed. Reg. 20843 (April 16, 1993). See also,
Supplemental Information Document for the Water Quality Guidance for
the Great Lakes System (March 23, 1995) (SID) at 58-59. No party
contends that new pollutants pose unique technical attributes that
render application of the existing WET methodologies or procedures
invalid. Rather, these commenters simply contend that certain aspects
of Procedure 6 promulgated by EPA are technically unsound and overly
conservative. However, Section 132.4(h) is not a vehicle for parties to
challenge anew the Guidance itself. The CWA requires the States to
adopt policies, standards and procedures that are consistent with the
Guidance promulgated by EPA. CWA Sec. 118(c)(2)(C). EPA is reviewing
State submissions to determine their consistency with the Guidance but
has not reopened any provision of the Guidance in our review. The
public had a full opportunity to provide its views on Procedure 6
during the rulemaking establishing the Guidance, and the time period
for challenging the Guidance has passed. See CWA Sec. 509(b).
Therefore, none of the comments provide any basis for allowing the
States to establish alternative methodologies and procedures pursuant
to 40 CFR 132.4(h) to address whole effluent toxicity.
Even if Section 132.4(h) were relevant, none of the States has
actually proposed an alternative approach of projecting effluent
toxicity that attempts to meet even the basic parameters of the
Guidance. While the States have flexibility to adopt approaches that
make different assumptions about the distribution of WET data than is
assumed in Procedure 6, no one has presented EPA with an analysis
identifying a different distribution or statistical method that fits
WET data better, either in general or in a particular case. More
fundamentally, however, the procedures submitted by Ohio, Michigan and
Indiana do not address in any manner the underlying premise of
Procedure 6--that effluent quality is variable and, therefore, a method
for assessing WET data must account for the likelihood that the maximum
value in a particular data set is less than the true maximum that is
likely to be experienced by the environment as a result of the
discharge. In evaluating the potential for a discharge to cause or
contribute to an exceedance of water quality standards, EPA believes it
prudent to employ a procedure that minimizes the likelihood of
misclassifying a discharge as not needing an effluent limitation, given
the potential in such circumstances for unacceptable adverse impacts on
the aquatic resource. Because the purpose of the PEQ reasonable
potential procedure is to extrapolate from typically small data sets a
reasonable worst case effluent quality that could be expected over the
life of a permit, using a conservative assumption is in keeping with
the purpose of the procedure. The reasonable potential determination is
intended to allow the permitting authority to make a decision that will
protect water quality with a high degree of confidence in the face of
uncertainty and with a relatively small data set.
Rather than providing alternative methods of accounting for the
uncertainty associated with small data sets by using an alternative
mechanism that more precisely predicts likely maximum toxicity levels
(e.g., alternative multipliers or ``safety factors''), the Michigan and
Indiana procedures make no attempt to extrapolate likely toxicity
levels (i.e., they lack any safety factor whatsoever). Indeed, these
States' procedures move in the opposite direction by averaging the
observed effluent data in some fashion and applying either a mandatory
or optional adjustment downward based on a ``failure'' rate. Ohio's
procedure is more complex and less predictable, but it also provides
for ``discounting'' observed WET data rather than applying a safety
factor. Thus, not only do these procedures fail entirely to consider
the potential of the discharge to cause or contribute to an exceedance
taking into account long-term effluent variability and the fact that a
small number of data sets may not capture the worst case effluent
quality, they actually allow a finding of ``no reasonable potential''
where available data has indicated unacceptable toxicity. EPA does not
consider these approaches to be either as protective as the Guidance,
or in accordance with applicable national regulations (40 CFR
22.44(d)(1)).
EPA also received comments that EPA should find Ohio's weight-of-
evidence approach for determining reasonable potential for WET as
protective as the Guidance. These commenters support the Ohio approach
as superior in considering all data regarding the toxicity of an
effluent and note especially a feature of the Ohio procedure that they
say would use biosurvey data as a substitute for the multiplier in
Table F6-1 when considering WET data.
EPA does expect permitting authorities to consider all relevant
information in determining whether reasonable potential exists. EPA
believes that this is best accomplished by considering each line of
evidence regarding the effect of an effluent on the environment
separately and without differential weighting of data drawn from
different sources. As discussed in the Technical Support Document for
Water Quality-based Toxics Control (EPA/505/2-90-001, March 1991) (TSD)
and reflected in paragraph 3 of Section F of Procedure 5 in Appendix F,
the chemical-specific, bioassessment, and WET characterization
approaches each have unique as well as overlapping attributes,
sensitivities, and program applications, no single approach for
detecting impact should be considered uniformly superior to any other
approach (See Chapter 3.1.3, p. 49). Consistent with this principle,
data showing an effect or potential for an effect is sufficient to
require effluent limits and the results of one assessment technique
should not be used to contradict or overrule the results of the other
techniques that indicate the need for an effluent limit. This is
especially appropriate when the task at hand is not only to identify
existing problems but to
[[Page 47873]]
predict the possibility of future adverse impacts and impose effluent
limits to prevent those adverse impacts from occurring.
EPA recognizes some merit in the position that biological data can
reduce the uncertainties about the effect of the discharge and thus
could serve a similar purpose as the multipliers or ``safety factors''
used in the Guidance procedure. Taken as a whole, however, the Ohio
procedure has the significant shortcoming discussed above of
``discounting'' WET data. Specifically, where biological data are
unavailable to corroborate effluent toxicity data, Ohio's procedure
would require that the maximum observed toxicity be at least three
times greater than the expected toxicity limit, that the average
toxicity exceed one-third the expected effluent limit, and that more
than more than 30 percent of the test results exceed a projected
wasteload allocation before it would be likely that a limit will be
imposed. Where biological data are present to corroborate effluent
data, it is not clear, as the commenter asserts, that a limit would be
required if the maximum observed effluent value exceeded the projected
effluent limit. In this situation, Ohio's procedure still could require
that the maximum observed effluent value be greater than the projected
wasteload allocation, that the average of the effluent test results
exceed half the expected effluent limit for acute toxicity and two-
thirds the expected effluent limit for chronic toxicity, and that more
than 30 percent of the effluent values exceed the expected toxicity
limit before a limit is imposed. Thus, Ohio's procedures will not
necessarily require a limit even in situations where the effluent
toxicity is observed in excess of the expected toxicity limit. As
discussed above, such a procedure is inconsistent with the Guidance.
Another set of comments asserted that EPA must examine a State's
whole approach to addressing WET and determine whether it reduces
effluent toxicity to a similar extent as EPA's approach, rather than
simply focusing on whether the State's procedures will result in
imposition of effluent limits for WET in all situations where the Great
Lakes Guidance would require imposition of such limits.
It is unclear how the commenter believes EPA's analysis is
deficient and why a different analysis would show a different result.
Certainly, the procedure that determines whether or not a permit
includes a WQBEL for a particular pollutant or parameter (the
reasonable potential procedure) is a critical element for determining
the level of protection that will be achieved when implementing a water
quality standard. Where a reasonable potential procedure is not as
protective as the Guidance, a State's WET program cannot be considered
to achieve the same level of protection as the Guidance.
EPA also notes that in addition to the requirements of the
Procedure 6 of the Guidance itself, Section 301(b)(1)(C) of the Clean
Water Act requires ``limitation[s] * * * necessary to meet any
applicable water quality standard.'' Moreover, EPA's regulations
implementing Section 301(b)(1)(C) at 40 CFR 122.44(d)(1)(iv) and (v)
require that NPDES permits contain ``effluent limits for whole effluent
toxicity'' or chemical-specific limits in lieu of WET limits, whenever
there is reasonable potential that a discharge will cause or contribute
to an in-stream excursion above a numeric criterion for WET or a
narrative criterion of no toxics in toxic amounts. Therefore, the CWA
and EPA's implementing regulations require permitting authorities to
impose WQBELs for WET when there has been a reasonable potential
finding, and EPA does not believe it would be consistent with the CWA
and EPA regulations to approve an alternative approach that omits this
fundamental requirement. EPA notes that, in appropriate cases, a
permitting authority can include a compliance schedule for the WQBEL
that would allow for additional monitoring and identification and
reduction of toxicants, followed by a reassessment of the need for a
limit or the identification of a specific toxicant that could be
subject to a WQBEL rather than WET.
Some commenters contended that EPA's actions with respect to
Indiana's, Michigan's and Ohio's WET reasonable potential procedures
were not consistent with statements by EPA that permitting authorities
retain the right to determine whether data is relevant and valid.
EPA agrees that permitting authorities have the right to exercise
reasonable discretion to reject unrepresentative or invalid data in
making reasonable potential determinations. EPA does not agree, and the
commenter fails to explain why it believes, that EPA's actions with
respect to Indiana's, Michigan's and Ohio's WET reasonable potential
procedures conflict with that position. Section D of Procedure 6 is
neutral with respect to the validity of particular pieces of WET data
(e.g., were the quality assurance/quality control requirements of the
method correctly followed) or whether that data is representative of
the discharge (e.g., was the sample taken during normal operations of
the facility). It is designed to work on the assumption that the
permittee has submitted data the permitting authority agrees are valid
and representative of the discharge. If the commenter is saying that
States have the discretion to determine that valid, representative data
that show effluent toxicity are irrelevant in determining whether a WET
limit is needed, EPA disagrees.
PA is nonetheless aware that there has been considerable concern
about the possibility that variability in WET test results could
erroneously indicate toxicity. EPA recently addressed this issue in the
document, ``Understanding and Accounting for Method Variability in
Whole Effluent Toxicity (WET) Applications Under the NPDES Program''
(EPA 833-R-00-003, June 2000). This document clarifies several issues
regarding WET variability and reaffirms EPA's earlier guidance and
recommendations published in the Technical Support Document for Water
Quality-Based Toxics Control (TSD, USEPA 1991). The document discusses
analysis of WET data that shows WET test method precision is comparable
to chemical-specific method precision. Significantly, the document
recommends that, rather than adjusting the reasonable potential
procedures, WET test method variability be minimized by adhering to the
EPA test methods (especially the quality assurance/quality control
procedures), representative sample collection, and other
recommendations provided in the document related to evaluating the
validity of specific WET test results. The Federal Register notice
announcing the availability of this document and the document itself
may be viewed or downloaded on the Internet at http://www.epa.gov/owm/npdes.htm.
E. Consequences of Today's Action
As a result of today's action, the Guidance provisions specified in
today's rule apply in the Great Lakes System in the States specified in
the rule until such time as a State adopts requirements consistent with
the specific Guidance provisions at issue, and EPA approves those State
requirements and revises the rule so that the provisions no longer
apply in that State.
II. ``Good Cause'' Under the Administrative Procedure Act
Section 553 of the Administrative Procedure Act, 5 U.S.C. 553
(b)(3)(B), provides that, when an agency for good cause finds that
notice and public procedure are impracticable, unnecessary or contrary
to the public
[[Page 47874]]
interest, the agency may issue a rule without publishing a notice of
proposed rulemaking. EPA has determined that there is good cause for
promulgating today's rule final without publishing a notice of proposed
rulemaking because EPA finds it unnecessary and contrary to the public
interest. Today's rule does not promulgate any new regulatory
provisions. Rather, in accordance with the procedures in 40
CFR132.5(f), today's rule identifies the provisions of Part 132
promulgated previously by EPA that shall apply to discharges in certain
States within the Great Lakes System. Those provisions have already
been subject to a notice of proposed rulemaking, and publication of a
new proposed rule is therefore unnecessary. See 58 FR 20802 (April 16,
1993). In addition, while EPA's approval/disapproval decisions
described in this notice do not constitute rulemaking, EPA has
nonetheless received substantial public comment on these decisions. See
63 FR 10221 (March 2, 1998) and 63 FR 23285 (April 28, 1998) (notices
of receipt of State Guidance submissions and requests for comment); 64
FR 49803 (September 14, 1999), and 64 FR 69019 (December 9, 1999)
(notices of letters identifying inconsistencies and requests for
comment). EPA also believes the public interest is best served by
fulfilling the CWA's requirements without further delay and publication
of a notice of proposed rulemaking therefore would be contrary to the
public interest. EPA finds that this constitutes good cause under 5
U.S.C. 553(b)(B).
III. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review by the Office of Management and Budget. Because the
agency has made a ``good cause'' finding that this action is not
subject to notice-and-comment requirements under the Administrative
Procedure Act or any other statute, as described in Section II, above,
it is not subject to the regulatory flexibility provisions of the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to Sections 202
and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L.
104-4). In addition, because this action does not promulgate any new
requirements, but only makes certain existing provisions of 40 CFR Part
132 effective in several States, it does not impose any new costs. The
costs of Part 132 were considered by EPA when it promulgated that
regulation. Therefore, today's rule does not significantly or uniquely
affect small governments or impose a significant intergovernmental
mandate, as described in Sections 203 and 204 of UMRA, or significantly
or uniquely affect the communities of Tribal governments, as specified
by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule 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 (64 FR 43255, August 10, 1999).
This rule also is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997), because it is not economically significant.
This action does not involve technical standards; thus, the
requirements of Section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule
also does not involve special consideration of environmental justice
related issues as required by Executive Order 12898 (59 FR 7629,
February 16, 1994). In issuing this rule, EPA has taken the necessary
steps to eliminate drafting errors and ambiguity, minimize potential
litigation, and provide a clear legal standard for affected conduct, as
required by Section 3 of Executive Order 12988 (61 FR 4729, February 7,
1996). This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a major rule as defined by 5 U.S.C. 804(2).
This rule will be effective September 5, 2000.
List of Subjects in 40 CFR Part 132
Administrative practice and procedure, Great Lakes, Indian-lands,
Intergovernmental relations, Reporting and recordkeeping requirements,
Water pollution control.
Dated: July 31, 2000.
Carol M. Browner,
Administrator.
For the reasons set forth above, EPA amends 40 CFR Part 132 as
follows:
PART 132--WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM
1. The authority citation for part 132 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
2. Text is added to Sec. 132.6 to read as follows:
Sec. 132.6 Application of part 132 requirements in Great Lakes States
and Tribes.
(a) Effective September 5, 2000, the requirements of Paragraph C.1
of Procedure 2 in Appendix F of this Part and the requirements of
paragraph F.2 of Procedure 5 in Appendix F of this Part shall apply to
discharges within the Great Lakes System in the State of Indiana.
(b) Effective September 5, 2000, the requirements of Procedure 3 in
Appendix F of this Part shall apply for purposes of developing total
maximum daily loads in the Great Lakes System in the State of Illinois.
(c) Effective September 5, 2000, the requirements of Paragraphs C.1
and D of Procedure 6 in Appendix F of this Part shall apply to
discharges within the Great Lakes System in the States of Indiana,
Michigan and Ohio.
[FR Doc. 00-19792 Filed 8-3-00; 8:45 am]
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