[Federal Register Volume 65, Number 215 (Monday, November 6, 2000)]
[Rules and Regulations]
[Pages 66502-66511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28419]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 132
[FRL-6896-9]
RIN 2040-AD66
Identification of Approved and Disapproved Elements of the Great
Lakes Guidance Submission From the State of Wisconsin, 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 submission of the
State of Wisconsin. EPA's final action consists of approving those
elements of the State's submission 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
[[Page 66503]]
in the portion of Wisconsin within the Great Lakes System where the
State either failed to adopt required elements or adopted elements that
are inconsistent with the Guidance.
DATES: 40 CFR 132.6(f), (h)-(j) is effective on December 6, 2000. 40
CFR 132.6(g) is effective on February 5, 2001. To the extent this
action, or portion thereof, is subject to judicial review pursuant to
section 509(b) of the Clean Water Act, 33 U.S.C. 1369(b), it is
considered issued for purposes of judicial review as 1 p.m., Eastern
Standard time on November 20, 2000, as provided in 40 CFR 23.2.
ADDRESSES: The public docket for EPA's final actions with respect to
the Guidance submission of the State of Wisconsin 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 State of Wisconsin. 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
Wisconsin.
Municipalities................... Publicly-owned treatment works
discharging to waters within the
Great Lakes System as defined in 40
CFR 132.2 in Wisconsin.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding regulated entities likely to be affected by
these final actions. This table lists the types of regulated 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 this final action, 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; 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 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
[bioaccumulative chemicals of concern (BCCs)] and impose [water
quality-based effluent limitations (WQBELs)] upon internal facility
waste streams.'' 115 F.3d at 985. On October 9, 1997, EPA published a
document revoking the PCB human health criteria pursuant to the Court's
decision. 62 FR 52922. On April 23, 1998, EPA published a second
document 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 document 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 document making 40 CFR 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 documents 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
[[Page 66504]]
changes. If the State fails to make the necessary changes, EPA must
publish a document 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 a Federal Register document 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 documents 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 document fulfills EPA's obligations under that Consent Decree
with respect to the State of Wisconsin. EPA has completed its final
actions with respect to the States of Illinois, Indiana, Michigan,
Minnesota, New York, Ohio, and Pennsylvania. EPA notes that Wisconsin's
Guidance submission 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 Wisconsin's submission 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 Wisconsin, EPA explains below its
reasons for concluding that Wisconsin failed to adopt requirements that
are consistent with the Guidance. Additional explanation of EPA's
conclusions are contained in EPA's correspondence with Wisconsin
(identified in relevant sections below) where EPA initially identified
inconsistencies in the State's submission, as well in documents
prepared for Wisconsin entitled, ``Wisconsin Provisions Being Approved
as Being Consistent With the Guidance,'' ``Analysis of Whether
Wisconsin Has Adopted Requirements Consistent With the Guidance'' and
``Analysis of Steps Taken By Wisconsin in Response to EPA's 90-Day
Letter.'' Notice of the availability of EPA's correspondence with
Wisconsin was published in the Federal Register and EPA has considered
all public comments received regarding any conclusions as to whether
Wisconsin had adopted provisions consistent with the Guidance.
In this proceeding, EPA has reviewed the State's submission to
determine its 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 submission being
approved by EPA, EPA is approving those provisions as amendments to
Wisconsin's NPDES permitting program under section 402 of the CWA and
as revisions to Wisconsin's water quality standards under section 303
of the CWA. Today's document identifies those approved elements.
Additional explanations of EPA's review of and conclusions regarding
Wisconsin's submission, including the specific State provisions that
EPA is approving, are contained in the administrative record for
today's actions in documents prepared for Wisconsin entitled,
``Wisconsin Provisions Being Approved as Being Consistent With the
Guidance,'' ``Analysis of Whether Wisconsin Has Adopted Requirements
Consistent With the Guidance'' and ``Analysis of Steps Taken By
Wisconsin in Response to EPA's 90-Day Letter.''
C. Today's Final Action
On June 13, 2000, EPA issued a letter notifying the Wisconsin
Department of Natural Resources (WDNR) that, while the State of
Wisconsin had generally adopted requirements consistent with the
Guidance, EPA concluded that portions of the standards, policies and
procedures adopted by the State were not consistent with corresponding
provisions of the Guidance. On June 22, 2000, EPA published in the
Federal Register a notice of and solicitation of public comment on its
June 13, 2000 letter. 65 FR 38830. EPA has completed its review of all
public comments on the June 13, 2000, letter and has determined that,
with the exceptions described below, Wisconsin has adopted requirements
consistent with all aspects of the Guidance. Specifically, Wisconsin
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, with three exceptions as described below; 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 the
implementation procedures in appendix F, with three exceptions
described below. As explained more fully below, Wisconsin has not
adopted requirements consistent with (1) the acute and chronic aquatic
life criteria in Table 1 of part 132 for copper and nickel, and the
chronic aquatic life criterion in Table 2 of part 132 for endrin and
selenium, (2) the provisions governing total maximum loads in procedure
3 in appendix F to 40 CFR part 132, (3) the provisions governing
consideration of intake pollutants in determining reasonable potential
and establishing WQBELs in paragraphs D and E of procedure 5 in
appendix F to 40 CFR part 132, and (4) the provisions for determining
reasonable potential for whole effluent toxicity set forth in paragraph
D of procedure 6 in appendix F to 40 CFR part 132.
EPA's June 13, 2000, 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, WDNR provided additional materials, including an Addendum
to its Memorandum of
[[Page 66505]]
Agreement (MOA) with EPA regarding the State's approved NPDES program
in which WDNR 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 the 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 ``Wisconsin Provisions Approved as
Being Consistent With the Guidance,'' ``Analysis of Whether Wisconsin
Has Adopted Requirements Consistent With the Guidance'' and ``Analysis
of Steps Taken By Wisconsin in Response to EPA's 90-Day Letter.''
EPA has determined that Wisconsin's acute and chronic aquatic life
criteria for copper and nickel in Wis. Adm. Code NR 105, Tables 2 and 6
are not consistent with those in Tables 1 and 2 of part 132; and
chronic aquatic life criterion for endrin in Wis. Adm. Code NR 105,
Table 5 is not consistent with that in Table 2 to 40 CFR part 132. With
respect to copper and nickel, Wisconsin acknowledged in an October 11,
2000, letter to EPA that it made mathematical errors which resulted in
criteria that were higher than (less protective than) criteria that
Wisconsin believes would have been consistent with the Guidance had the
errors not been made. Wisconsin also acknowledged that it did not
consider certain toxicological data incorporated into the Guidance
criterion in deriving its chronic aquatic life criterion for endrin,
which in turn resulted in a criterion that is less stringent than that
required by the Guidance. Wisconsin intends to initiate rulemaking to
correct these errors, but will be unable to complete that rulemaking
before October 31, 2000, which is the date by which EPA is required
under its Consent Decree with the National Wildlife Federation and the
Lake Michigan Federation to take final action on Wisconsin's
submission.
Based upon the above, EPA finds that Wisconsin has failed to adopt
acute and chronic aquatic life criteria for copper and nickel
consistent with those in Tables 1 and 2 of part 132, and has failed to
adopt a chronic aquatic life criterion for endrin consistent with that
in Table 2 to 40 CFR part 132, as required by 40 CFR 132.3. EPA,
therefore, disapproves Wisconsin's acute and chronic aquatic life
criteria for copper and nickel in Wis. Adm. Code NR 105, Tables 2 and
6, and chronic aquatic life criterion for endrin in Wis. Adm. Code NR
105, Table 5, to the extent they apply to waters of the Great Lakes
System, and has determined that the acute and chronic aquatic life
criteria for copper and nickel in Tables 1 and 2 of part 132 and the
chronic aquatic life criterion for endrin in Table 2 to 40 CFR part 132
shall apply to the waters of the Great Lakes System in the State of
Wisconsin.
As noted above, Wisconsin intends to initiate rulemaking to adopt
criteria that are consistent with those in the Guidance for these three
parameters. EPA will work closely with WDNR to insure that these
criteria will be consistent with the Guidance. WDNR will then submit
its criteria to EPA for review pursuant to section 303(c) of the CWA,
and, if EPA approves those revisions, EPA will revise its regulations
so that the Guidance criteria will no longer apply to the waters within
the Great Lakes System in the State of Wisconsin.
EPA is also disapproving Wisconsin's failure to adopt and submit to
EPA a chronic aquatic life water quality criterion for selenium. 40 CFR
132.3(b) mandates that each Great Lakes State adopt numeric water
quality criteria that are consistent with the chronic water quality
criteria for the protection of aquatic life contained in Table 2 of
part 132 (or with site-specific modifications of those criteria adopted
in accordance with the Guidance). Table 2 contains a chronic water
quality criterion for selenium of 5 micrograms per liter (g/
L). Currently, Wisconsin's water quality standards do not contain a
chronic aquatic life criterion for selenium. The absence of any water
quality criterion in Wisconsin's standards to ensure the protection of
aquatic life from chronic adverse effects due to selenium is
inconsistent with the Guidance.
EPA did not identify the omission of the selenium criterion from
the State's submission in its June 13, 2000, letter to the State, but
subsequently became aware of this deficiency very near the close of
this proceeding. Because the absence of the selenium criterion is
clearly inconsistent with the Guidance, and in light of EPA's
obligation under the consent decree in National Wildlife Federation v.
Browner, Civ. No. 99-3025-HHK (D.D.C.), EPA has taken final action on
the entirety of the State's submission, including the omission of the
chronic aquatic life criterion for selenium. EPA recognizes however,
that it has not previously notified the State of EPA's conclusion
regarding the selenium criterion, and provided the 90-day period
contemplated in EPA regulations for the State to take corrective
action. To provide the State with this opportunity, EPA has established
an effective date for the selenium criterion in today's rule of 90 days
from today. If Wisconsin corrects this deficiency and adopts a selenium
criterion consistent with the Guidance during this period, EPA will
take action to withdraw the selenium criterion prior to its effective
date. If the State does not take corrective action in this time frame,
the selenium criterion in today's rule will go into effect 90 days from
today. As with the other aspects of today's rule, if the State
subsequently cures this deficiency and adopts a criterion for selenium
that is approved by EPA, EPA will amend today's rule to remove the
selenium criterion.
EPA also 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 Wisconsin. EPA
has made this determination because Wisconsin simply has not adopted
specific requirements for developing TMDLs in the Great Lakes System
that correspond to those in procedure 3 of appendix F. Wisconsin has
enacted a statutory requirement at Wis. Stat. 283.83(3), and has
adopted a regulatory requirement at Wis. Adm. Code NR 106.11, that
generally require WDNR to develop TMDLs. Wisconsin also has adopted at
Wis. Adm. Code NR 212 detailed regulatory requirements for how WDNR
must develop TMDLs for a number of pollutants that are not subject to
the Guidance (see Table 5 of 40 CFR part 132). However, Wisconsin has
not adopted similar, detailed provisions governing development of TMDLs
for pollutants that are subject to the Guidance (i.e., all pollutants
other than those in Table 5 of 40 CFR part 132).
Given the complete absence of any specific requirements governing
development of TMDLs in the Great Lakes System in Wisconsin for
pollutants subject to the Guidance, it is necessary for EPA to specify
that the provisions of procedure 3 of appendix F to 40 CFR part 132
apply in the Great Lakes System in the State of Wisconsin. EPA notes
that this promulgation has no effect on the chemical-specific
reasonable potential procedures at Wis. Adm. Code NR 106.05 and
106.06(1) , (3)-(5), & (7)-(10) which EPA approves as being consistent
with the reasonable potential procedures in paragraphs A through C and
F of procedure 5 in appendix F to 40 CFR part 132. These State
procedures, therefore, apply in the
[[Page 66506]]
Great Lakes System in the State of Wisconsin for purposes of developing
wasteload allocations in the absence of a TMDL and developing
preliminary effluent limitations in making chemical-specific reasonable
potential determinations.
EPA also has determined that two provisions in Wisconsin's rules,
Wis. Adm. Code NR 106.06(06) and Wis. Adm. Code NR 106.10(1), are
inconsistent with procedure 5 in appendix F to 40 CFR part 132. Section
301(b)(1)(C) of the CWA requires all NPDES permits to include effluent
limitations more stringent than technology-based limits when necessary
to meet State water quality standards in the receiving waterbody. To
implement this requirement, EPA has established a two-step water
quality-based permitting approach. A discharge of pollutants must first
be evaluated to determine whether it will cause, have the reasonable
potential to cause, or contribute to an excursion above any State water
quality standard (i.e., whether the discharge poses ``reasonable
potential''). 40 CFR 122.44(d)(1)(i) and (ii). If reasonable potential
exists, then the discharge must be subject to water quality-based
effluent limitation that will ensure ``the level of water quality to be
achieved by limits on point sources * * * is derived from, and complies
with all applicable water quality standards.'' 40 CFR
122.44(d)(1)(vii)(A). Procedure 5 of the Guidance implements, and
elaborates on, these requirements. It requires the permitting authority
to characterize pollutant levels in a discharge, and determine whether
those levels, if left uncontrolled, would cause, or have the reasonable
potential to cause, or contribute to a violation of water quality
standards. See procedure 5.A-C. If the permitting authority makes an
affirmative reasonable potential determination, it must impose water
quality-based effluent limitations (``WQBELs'') to ensure compliance
with water quality standards. See procedure 5.F.2.
One of the principal issues considered in the development of the
Guidance was the appropriate approach for establishing wasteload
allocations for point sources (upon which WQBELs are based) where the
``background'' levels of the pollutant in a waterbody exceed applicable
water quality criteria for that pollutant. The proposed Guidance
included a requirement to set the wasteload allocation at zero, in the
absence of a multiple source TMDL, for any pollutant discharged into a
waterbody already exceeding water quality criteria for that pollutant.
See procedures 3A.C.4 and 3B.C.3 (58 FR 21046, April 16, 1993). This
``high background'' provision was not included in the final Guidance
because the Agency concluded that a multitude of factors would need to
be considered in establishing wasteload allocations and WQBELs in this
situation. See Supplemental Information Document for the Water Quality
Guidance for the Great Lakes System (EPA, 3/23/95) (``SID'') at 285.
Possible permitting approaches discussed in the SID ranged from
prohibiting the discharge of the pollutant altogether to allowing no
greater than discharge at the criteria itself (i.e., ``criteria end-of-
pipe''). See SID at 339.
EPA also addressed ``high background'' pollutants by establishing
specialized provisions for discharges of pollutants contained in a
facility's intake water (``intake pollutants'') in paragraphs D and E
of procedure 5. Where a facility removes water with high background
pollutant levels and then subsequently discharges the same level of
pollutants back into the same waterbody, the discharge does not pose
environmental concerns comparable to where a facility introduces
pollutants into the waterbody for the first time.
Procedure 5.D allows a finding that a water quality-based effluent
limit is not needed for a particular pollutant that originates in the
intake water and simply passes through the facility and is discharged
without any adverse effect (that would not have occurred had the intake
pollutant stayed in-stream). Among other things, eligibility for this
finding under the Guidance requires a showing that:
i. The facility withdraws 100 percent of the intake water
containing the pollutant from the same body of water into which the
discharge is made;
ii. The facility does not contribute any additional mass of the
identified intake pollutant to its wastewater;
iii. The facility does not alter the identified intake pollutant
chemically or physically in a manner that would cause adverse water
quality impacts to occur that would not occur if the pollutants were
left in-stream;
iv. The facility does not alter the identified intake pollutant
concentration, as defined by the permitting authority, at the edge of
the mixing zone, or at the point of discharge if a mixing zone is not
allowed, as compared to the pollutant concentration in the intake
water, unless the increased concentration does not cause or contribute
to an excursion above an applicable water quality standard; and
v. The timing and location of the discharge would not cause adverse
water quality impacts to occur that would not occur if the identified
intake pollutant were left in-stream.
If an intake pollutant does not meet the above five criteria and
effluent limitations are needed, paragraph E of procedure 5 allows a
facility to discharge the same mass and concentration of pollutants
that are present in its intake water (i.e., ``no net addition''),
provided the discharge is to the same body of water and certain other
conditions are met. Under the Guidance, an intake pollutant is from the
same body of water if the intake pollutant ``would have reached the
vicinity of the outfall point in the receiving water within a
reasonable period had it not been removed by the permittee.'' Procedure
5.D.2.b. EPA determined that allowing discharge at background levels,
even though above applicable criteria, would be both environmentally
protective and consistent with the requirements of the CWA where a
pollutant is simply being moved from one part of the waterbody to
another that it would have reached in any event. However, if the
pollutant is from a different body of water, ``no net addition''
limitations are not available because, in such a case, the facility is
introducing a pollutant to a waterbody for the first time (i.e., the
pollutant would not be introduced to the waterbody but for the
discharge). Because the waterbody is already exceeding applicable water
quality criteria the Guidance requires a more stringent approach to
ensure the discharge does not exacerbate the water quality standards
violation--i.e., effluent limitations based on the most stringent
applicable water quality criterion for the receiving water. See
procedure 5.E.4.
Wisconsin's regulations contain a provision that addresses
discharges into waters where background levels exceed applicable water
quality criteria. Wis. Adm. Code NR 106.06(6). If 10 percent of a
pollutant to be discharged by a facility is from the same body of water
as the discharge, Wisconsin's procedure requires that permit
limitations for the entire discharge be set at background levels,
except that more stringent limitations may be established when the
existing treatment system has a demonstrated cost-effective ability to
achieve regular and consistent compliance with a limitation more
stringent than the representative background concentration. Wis. Adm.
Code NR 106.06(6)(c). Where at least 90 percent of the wastewater is
from groundwater or a drinking water supply, the permitting authority
is to establish limits equal to the lowest applicable
[[Page 66507]]
water quality criteria, except that limitations up to background levels
are allowed if reasonable, practical or otherwise required steps are
taken to minimize the level of the pollutant discharged. Wis. Adm. Code
NR 106.06(6)(a) and (b). In either situation, the department may allow
alternative limitations, including limitations above background levels,
in the form of numerical limits, monitoring requirements, or a cost-
effective pollutant minimization plan. Wis. Adm. Code NR 106.06(6)(d).
Wisconsin's approach differs significantly from, and is not as
protective as, procedure 5 of the Guidance. Most importantly, procedure
5 only allows effluent limitations to be set above water quality
criteria at ``background'' levels (i.e., ``no net addition''
limitations under procedure 5.E) for intake pollutants that are taken
from, and returned to, the same body of water. Any pollutants
transferred from a different body of water must meet limitations based
on the most stringent applicable water quality criterion. See procedure
5.E.4. Where a facility's discharge combines pollutants from the same
and different bodies of water, effluent limitations may be derived
using flow-weighting to reflect the two permitting approaches. See
procedure 5.E.5. Wisconsin's procedure, on the other hand, effectively
allows any facility covered by its provision to discharge its entire
waste stream at background levels (and potentially even higher in
accordance with Wis. Adm. Code NR 106.06(d)), regardless of whether the
pollutant originated from the same body of water, a different body of
water, or the facility generated the pollutant itself. Indeed,
Wisconsin's procedure would even allow the permit writer to not include
effluent limitations at all. Because Wisconsin's procedure allows the
permitting authority to adopt less stringent effluent limitations than
would be allowed by the Guidance, and even allows the permitting
authority to not include any effluent limitations in situations where
the Guidance would require one, the State's procedure is inconsistent
with the Guidance.
Wisconsin's approach is also inconsistent with the fundamental
principles underlying the Guidance permitting procedures. The Guidance
allows effluent limitations at ``background'' levels for intake
pollutants from the same body water because, in that circumstance,
``the discharge containing the identified intake pollutant of concern
effectively has no impact on the receiving water that would not
otherwise occur if the pollutant were left in stream.'' See SID at 370.
In contrast, Wisconsin's approach allows facilities to discharge
pollutants that were not previously in the waterbody (pollutants either
generated by the facility itself or intake pollutants from a different
body of water), and to do so at levels greater than the applicable
water quality criteria. Since the receiving waterbody is already
exceeding applicable water quality criteria, such discharges have the
strong potential to exacerbate the water's non-compliance with
standards, and permits authorizing such discharges would not meet the
underlying requirement to establish effluent limitations that ensure
water quality achieved by point sources derives from and complies with
water quality standards. 40 CFR 122.44(d)(1)(vii)(A).
This conclusion is not changed by the fact that Wisconsin's
procedures provide for limitations to be set at levels below background
based on practicability considerations, as provided in Wis. Adm. Code
NR 106.06(6)(b) and (c)2. The CWA does not contain an exception to the
requirement to meet water quality standards based on considerations of
technical feasibility. To the contrary, the Act requires discharges to
meet technology-based requirements and ``any more stringent
limitations, including those necessary to meet water quality
standards.'' CWA section 301(b)(1)(C) (emphasis added). When EPA
developed the Guidance, EPA expressly evaluated and rejected
Wisconsin's approach on the grounds that it would ``substitute the
feasibility of pollution control for consideration of water quality
standards as the basis for deriving WQBELs.'' See SID at 352. Procedure
5 of the Guidance does not permit loosening of water quality-based
effluent limitations based on consideration of feasibility. Therefore,
Wisconsin's procedure is not as protective as the Guidance.
Finally, the Wisconsin approach is not as protective as the
Guidance because it fails to include the important restrictions
contained in the Guidance to ensure that all possible adverse impacts
that could result from the discharge of intake pollutants are
considered in determining whether limits are needed. The Guidance
prohibits ``no net addition'' limitations where the facility alters the
intake pollutant chemically or physically in a manner that would cause
adverse water quality impacts to occur that would not occur if the
pollutant were left in-stream, or the timing and location of the
discharge would increase the adverse effects of the pollutants.
Procedures 5.D.3.b.iii and v; 5.E.3.a. The absence of these
restrictions in the Wisconsin submission is inconsistent with the
Guidance.
For the reasons described above, EPA finds that Wis. Adm. Code NR
106.06(6) is inconsistent with procedure 5 of appendix F of 40 CFR part
132.
EPA also finds Wisconsin's cooling-water exemption at Wis. Adm.
Code NR 106.10(1) to be inconsistent with the intake pollutant
procedures of the Guidance. That provision prohibits the NPDES
permitting authority from imposing WQBELs on discharges of non-contact
cooling waters, which do not contain additives. Even when additives are
used, Wis. Adm. Code NR 106.10(1) categorically prohibits the
permitting authority from imposing WQBELs for ``compounds at a rate and
quantity necessary to provide a safe drinking water supply, or the
addition of substances in similar type and amount to those substances
typically added to a public drinking water supply.'' Wisconsin's rules
do not contain any of the limitations set forth in the Guidance at
paragraph 5.3.b of appendix F discussed above, which ensure that all
potential environmental effects are considered in regulating the
discharge of intake pollutants.
Nothing in the Guidance allows for a categorical exclusion for non-
contact cooling water discharges (with or without additives) from the
need for evaluating whether WQBELs are needed to ensure compliance with
water quality standards. A major premise of the provisions in the
Guidance pertaining to determining reasonable potential in paragraphs
A-C of procedure 5, as well as the intake pollutants addressed by
paragraphs D and E, is that decisions on the need for, and calculation
of, WQBELs must occur on a case-by-case basis because there is no way
to categorically determine that a particular group of discharges will
have the same impact on any particular body of water. Without such an
evaluation, it is not possible to make a reliable determination that
limitations are being imposed that are needed to meet water quality
standards, as required by section 301(b)(1)(C) of the CWA. EPA
recognizes that it is possible to develop a framework for considering
classes of discharges based upon their common characteristics (e.g.,
certain categories of non-contact cooling water) that accounts for the
factors identified in the Guidance to determine whether their discharge
will cause or has the reasonable potential to cause or contribute to an
exceedance of water quality standards. This is evidenced by EPA's
approval of once-through non-contact cooling water provisions in
[[Page 66508]]
other Great Lakes States. Wisconsin, however, has not tailored its
procedure in this manner or supplied any analysis why the exempt
category of discharges never require the imposition of WQBELs. Instead,
the State has provided a broad, blanket exemptions from water quality-
based permitting requirements for non-contact cooling water discharges
regardless of the impacts on the receiving water of those discharges.
EPA clearly stated that it would not consider such exemptions
consistent with the Guidance. See SID at 384-85. EPA, therefore, finds
that Wisconsin's non-contact cooling water provisions at Wis. Adm. Code
NR 106.06(10)(1) are not consistent with the Guidance.
Based upon the above, EPA disapproves the provisions at Wis. Adm.
Code NR 106.06(6) and Wis. Adm. Code NR 106.06(10)(1) to the extent
they apply to waters of the Great Lakes System as inconsistent with
procedure 5 in appendix F of 40 CFR part 132 and has determined that
paragraphs D and E of procedure 5 in appendix F to 40 CFR part 132
shall apply to the waters of the Great Lakes System in the State of
Wisconsin. As described in the record for today's action, EPA has
approved Wisconsin's basic procedure at Wis. Adm. Code NR 106.05 for
determining reasonable potential for specific chemicals as consistent
with the Guidance, and that procedure will continue to govern
reasonable potential determinations by the State within the Great Lakes
System. In light of EPA's disapproval of Wis. Adm. Code NR 106.06(6)
and Wis. Adm. Code NR 106.06(10)(1), those provisions are not an
effective component of the State's NPDES program within the Great Lakes
System and cannot serve as the basis for making reasonable potential
determinations and establishing effluent limitations in issuing NPDES
permits. See 40 CFR 123.63(b)(4) (NPDES program revisions are effective
upon approval by EPA). Therefore, discharges of pollutants will be
governed by the State's reasonable potential procedures in Wis. Adm.
Code NR 106.05, subject to the flexibility available under the intake
pollutant procedures contained in today's rule.
EPA also has determined that Wisconsin's provisions at Wis. Adm.
Code NR 106.08(5) for determining reasonable potential for a discharge
to cause or contribute to an exceedance of Wisconsin's narrative
criteria at Wis. Adm. Code NR 102.04(1) prohibiting the discharge of
toxic substances in toxic amounts are inconsistent with paragraph 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. In most cases where there is
quantifiable effluent data, EPA's procedure will project an effluent
value greater than the maximum observed value (using factors to account
for effluent variability and size of the data set) to characterize the
reasonable worst case effluent. 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 paragraph D of procedure 6.
Wisconsin's procedures at Wis. Adm. Code NR 106.08(5) rely on the
comparison of the geometric mean toxicity multiplied by the fraction of
the available toxicity values that fail WET requirements to derive a
WET reasonable potential factor (RPF). If the calculated RPF is greater
than 0.3, a limit is required. Because effluent monitoring results are
averaged under the Wisconsin approach, the importance of individual
sample showing high levels of toxicity is diminished in determining the
need for a limit. Indeed, Wisconsin's procedure would allow the State
to not impose a limit even where actual toxicity has been observed in
WET tests on the effluent, a result clearly inconsistent with the
Guidance. Wisconsin's regulation also allows the permit writer not to
even undertake a reasonable potential analysis if there are fewer than
five data points to calculate the RPF, while the Guidance requires a
reasonable potential analysis where even where there is only one data
point. Each of these characteristics of the Wisconsin procedure means
that it is possible to reach a determination that a limit is not
necessary even when an actual observed value would violate potential
permit limits. This is clearly inconsistent with paragraph D of
procedure 6.
Based upon the above, EPA finds that Wisconsin has failed to adopt
procedures governing WET reasonable potential consistent with those in
paragraph D of procedure 6 in appendix F to 40 CFR part 132. EPA,
therefore, disapproves Wisconsin's provisions at Wis. Adm. Code NR
160.08(5) to the extent they apply to waters of the Great Lakes System,
and has determined that the provisions in paragraph 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 Wisconsin.
As noted above, EPA, in this document, is not taking action to
approve or disapprove portions of Wisconsin's Guidance submission
pertaining to NPDES permitting and water quality standards issues that
are not addressed by the Guidance. Therefore, EPA is not taking action
under section 118 with regard to the following issue. However, EPA
wishes to describe its understanding with regard to one aspect of
Wisconsin's submission that is not addressed by the Guidance.
Specifically, Wis. Adm. Code NR 106.07(6)(c) provides that effluent
levels that are below the level of quantification (LOQ) are generally
deemed to be in compliance with WQBELs that are below the LOQ. EPA
expressed concern in its June 13, 2000, letter to Wisconsin that, to
the extent this provision suggested that effluent levels that exceeded
the WQBEL but that were below the LOQ would be deemed to be in
compliance with the WQBEL, this provision would be inconsistent with
the requirement in paragraph A of procedure 8 in appendix F to 40 CFR
part 132 that such WQBELs must be specified in the NPDES permit as the
enforceable effluent limit.
WDNR has clarified that, consistent with the Guidance, it is
required to specify the WQBEL in the permit as the enforceable limit in
these situations and that Wis. Adm. Code NR 106.07(6)(c) only relates
to the exercise by WDNR of its enforcement discretion, not the
authority of the federal government or third parties in a citizen suit
to enforce the WQBEL as calculated. Moreover, WDNR has agreed in an
addendum to its MOA with EPA that it will not include the language of
Wis. Adm. Code NR 106.07(6)(c) in NPDES permits. Given WDNR's
clarification regarding the meaning of Wis. Adm. Code NR 106.07(6)(c),
EPA no longer believes that Wis. Adm. Code NR 106.07(6)(c) is relevant
to the question of whether WDNR has adopted requirements consistent
with the Guidance, and so EPA is not taking action at this time to
either approve or disapprove that provision. EPA notes that revisions
to State NPDES programs do not become
[[Page 66509]]
effective until approved by EPA (40 CFR 123.62(b)(4)), that EPA has
concerns regarding the appropriateness of the State's limitation on its
own enforcement authority, and that WDNR intends to review and
potentially revise its rules to address EPA's concerns.
D. Public Comments
EPA received public comments from two commenters in response to its
Federal Register notice of the availability of its June 13, 2000 letter
to the State of Wisconsin. EPA has responded to those comments in a
document entitled ``EPA's Response to Comments Regarding the Great
Lakes Guidance Submission of the State of Wisconsin'' that has been
included as part of the record in this matter. The following is a
summary of EPA's responses to the significant points of these comments.
Comment: One commenter asserted that EPA should have provided the
public with 90 days, rather than 45, to comment on EPA's June 13, 2000,
letter to the State of Wisconsin setting forth EPA's initial views
regarding whether Wisconsin had adopted requirements consistent with
the Guidance.
Response: The final rule being promulgated by EPA makes certain
provisions of 40 CFR part 132 applicable to the Great Lakes System in
Wisconsin. 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, EPA
provided public notice of the availability of, and solicited comment
on, the NPDES portions of Wisconsin's Guidance submission in a Federal
Register document (63 FR 10221) dated March 2, 1998. In a Federal
Register document (65 FR 38830 ) dated June 22, 2000, EPA subsequently
provided notice of the availability of its June 13, 2000, letter to
Wisconsin in which EPA provided (a) detailed explanations of the bases
for its findings that the State 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
State had adopted provisions consistent with the Guidance. EPA also
solicited comment on all aspects of this letter, and has considered and
responded to all comments received before taking today's final action.
EPA has complied with all applicable public participation requirements,
and believes that the 45 day period for commenting on its June 13,
2000, letter to Wisconsin was adequate.
Comment: One commenter asserts that EPA's treatment of intake
pollutants in the Guidance is technically flawed and economically
unachievable because they could require the treatment of up to one
billion gallons per day of non-contact cooling water at a power plant.
According to the commenter, the power plant in such a scenario would
have to either install wastewater treatment equipment at a cost of tens
or hundreds of millions of dollars or to shut down. The commenter
asserts that a better approach would be to determine the sources of the
background pollutants of concern and to determine if there are other
technically and economically feasible options for improving water
quality.
Response: To the extent this commenter is asserting that the
Guidance itself improperly addresses intake pollutants, EPA reiterates
that it has not reopened the Guidance for revisions and therefore such
comments are not within the scope of EPA's current action, which is to
determine whether Wisconsin has submitted provisions consistent with
the Guidance.
EPA is disapproving the Wisconsin provision that prohibits WQBELs
for non-contact cooling water as being inconsistent with the Guidance
for the reasons stated above. EPA believes the commenter's conclusion
that power plants will have to treat billions of gallons of water or
shut down is speculative and overstated. EPA expects that in many
cases, especially where no additives are used, once-through non-contact
cooling water will qualify for intake pollutant relief under the
Guidance provisions being promulgated for application to discharges to
the Great Lakes Basin in Wisconsin. In any case, the application of the
intake pollutant procedures of the Guidance to a particular discharger
is fundamentally a site-specific evaluation. The particular
characteristics of a facility's intake water and effluent, the manner
in which the intake pollutants are handled by the facility and the
resulting effect of that handling on the potential adverse effects of
such pollutants in the receiving water, as well as the nature of the
receiving water itself, all must be considered to determine what
regulatory controls, if any, are needed under the Guidance. Thus,
without a full record, it is not possible for us to address fully the
concerns raised by this commenter, or predict how the rule being
promulgated today will apply to any particular facility.
In addition, there are two other mechanisms set forth in the
Guidance for addressing the commenter's concern. First, as EPA
explained in several places in the SID, the best means for States and
Tribes to address comprehensively the root causes of non-attainment of
water quality standards is the TMDL development process. See, e.g., SID
at 347. (The SID has been included in the record for EPA's
determination with respect to Wisconsin's Guidance submission.) The
TMDL procedures for the Great Lakes System are set forth in procedure 3
of appendix F to 40 CFR part 132. Second, any existing discharger into
the Great Lakes System can apply for a variance from water quality
standards where the discharger believes that requiring compliance with
necessary water quality based effluent limitations ``would result in
substantial and widespread economic and social impact.'' See 40 CFR
131.10(g)(6). EPA adopted the intake pollutant procedures in the
Guidance as an additional, permit-based mechanism for dealing with
simple removal and transfer of pollutants from one part of a waterbody
to another, but availability of this mechanism does not preclude use of
other means of adjusting water quality standards or a particular
discharger's load reduction responsibilities.
Comment: One commenter asserts that Wisconsin's approach to
addressing WET, which the commenter describes as being one that relies
upon permittees unilaterally (or in a cooperative fashion with the
WDNR) taking voluntary measures to reduce toxicity rather than upon
imposition of effluent limitations to control WET, is consistent with
or superior to that in the Guidance. According to the commenter,
Wisconsin's voluntary approach to addressing WET is superior to an
approach that requires imposition of effluent limitations because
effluent limitations can actually hinder a permittee's ability to
address toxicity problems. The commenter asserts that this is because
exceedances of permit limits can have serious legal consequences that
can often divert the technical staff of both the regulatory agency and
the permittee away from doing the technical work necessary to identify
and address the causes of toxicity in the permittee's effluent.
Response: Paragraph C of procedure 6 in appendix F to 40 CFR part
132 requires imposition of WQBELs for WET whenever an effluent is or
may be discharged at a level that will cause, have the reasonable
potential to cause, or contribute to an excursion above any numeric WET
criterion or narrative criterion within a State's water quality
[[Page 66510]]
standards (i.e., whenever there is ``reasonable potential''). Paragraph
D of procedure 6 sets forth procedures for determining reasonable
potential for WET.
Wisconsin's rules at Wis. Adm. Code NR 106.08(1), consistent with
paragraph C of procedure 6, requires that WDNR ``shall establish [WET]
testing requirements and limitations whenever necessary to meet
applicable water quality standards as specified in [Wis. Adm. Code]
chs. NR 102 to 105 as measured by exposure of aquatic organisms to an
effluent and specified effluent dilutions.'' For the reasons explained
above, Wisconsin's procedures for determining reasonable potential
(i.e., for determining whether WET limitations are ``necessary to meet
applicable water quality standards'') are clearly not consistent with
paragraph D of procedure 6 because, among other things, it is possible
under Wisconsin's procedures to reach a determination that a WQBEL is
not necessary even when an actual observed value would violate
potential permit limits.
The commenter's premise is that imposition of WQBELs is actually
harmful to the environment because the commenter believes that
imposition of WQBELs results in an expenditure of resources that could
otherwise be used addressing toxicity problems. The commenter,
therefore, concludes that Wisconsin's inadequate WET reasonable
potential should be approved precisely because it does not result in
imposition of WQBELs.
EPA does not agree with the commenter's premise that imposition of
WQBELs is somehow harmful to the environment, and the commenter has
provided nothing other than vague, conclusory assertions to support the
premise. Instead, EPA believes that 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 procedure 6
of the Guidance itself, section 301(b)(1)(C) of the CWA 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 rather than WET that
could be subject to a WQBEL.
Comment: One commenter asserts that EPA has failed to present
technical evidence that the Guidance WET reasonable potential
statistical procedure is technically valid. Specifically, the commenter
asserts that EPA has not presented any information to prove that WET
data follow a log-normal distribution.
Response: The CWA requires the States to adopt policies, standards
and procedures that are consistent with the Guidance promulgated by
EPA. 33 U.S.C. 118(c)(2)(C). EPA has reviewed Wisconsin's submission to
determine its 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 the statistical procedure for
determining WET reasonable potential in paragraph D of procedure 6
during the rulemaking establishing the Guidance, and the time period
for challenging the Guidance has passed. See 33 U.S.C. 509(b).
Therefore, this comment does not provide a basis for allowing Wisconsin
to adopt WET reasonable potential procedures that are inconsistent with
those in the Guidance.
EPA further notes, in response to the comment regarding whether it
is appropriate to assume that WET data follow a log-normal
distribution, that although 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, for the reasons explained above, the
procedure submitted by Wisconsin does 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. EPA, therefore, concludes that Wisconsin's
approach is inconsistent with the Guidance.
Comment: One commenter asserts that EPA is asking Wisconsin to
adopt TMDL rules that did not exist when the Wisconsin rules were being
revised.
Response: EPA promulgated the Guidance at 40 CFR part 132 on March
23, 1995. Wisconsin subsequently engaged in a proceeding to adopt
requirements consistent with the Guidance, and Wisconsin did indeed
revise its rules in that time period in an effort to be consistent with
the Guidance. EPA, therefore, does not agree that the Guidance required
Wisconsin to adopt rules that did not exist when the Wisconsin rules
were being revised.
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 Wisconsin until such
time as the 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
Wisconsin.
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 interest, the agency may issue a rule without providing
notice and an opportunity for public comment. EPA has determined that
there is good cause for making today's rule final without prior
proposal and opportunity for comment 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 CFR 132.5(f), today's rule identifies the provisions
of 40 CFR part 132 promulgated previously by EPA that shall apply to
discharges in Wisconsin within the Great Lakes
[[Page 66511]]
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 document
do not constitute rulemaking, EPA has nonetheless received substantial
public comment on these decisions. See 63 FR 10221 (March 2, 1998)
(notice of receipt of State Guidance submission and request for
comment); 65 FR 38830 (June 22, 2000) (notice of letter identifying
inconsistencies and request 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. Thus, notice and
public procedure are unnecessary. 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) (Public Law
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 Wisconsin, it does not impose any new costs. The costs
of 40 CFR 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 State, on the relationship
between the national government and the State, 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).
40 CFR 132.6(f), (h)-(j) is effective on December 6, 2000. 40 CFR
132.6(g) is effective on February 5, 2001.
List of Subjects in 40 CFR Part 132
Environmental protection, Administrative practice and procedure,
Great Lakes, Indian-lands, Intergovernmental relations, Reporting and
recordkeeping requirements, Water pollution control.
Dated: October 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. Section 132.6 is amended by adding paragraphs (f) through (i) to
read as follows:
Sec. 132.6 Application of part 132 requirements in Great Lakes States
and Tribes.
* * * * *
(f) Effective December 6, 2000, the acute and chronic aquatic life
criteria for copper and nickel in Tables 1 and 2 of this part and the
chronic aquatic life criterion for endrin in Table 2 of this part shall
apply to the waters of the Great Lakes System in the State of
Wisconsin.
(g) Effective February 5, 2001, the chronic aquatic life criterion
for selenium in Table 2 of this part shall apply to the waters of the
Great Lakes System in the State of Wisconsin.
(h) Effective December 6, 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
Wisconsin.
(i) Effective December 6, 2000, the requirements of paragraphs D
and E of procedure 5 in appendix F of this part shall apply to
discharges within the Great Lakes System in the State of Wisconsin.
(j) Effective December 6, 2000, the requirements of paragraph D of
procedure 6 in appendix F of this part shall apply to discharges within
the Great Lakes System in the State of Wisconsin.
Dated: October 31, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-28419 Filed 11-3-00; 8:45 am]
BILLING CODE 6560-50-P