Federal Register, Volume 65 Issue 195 (Friday, October 6, 2000)

[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Rules and Regulations]
[Pages 59738-59748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25746]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 403

[FRL-6882-9]

Community XL (XLC) Site-Specific Rulemaking for Steele County, MN

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) will implement a
project under the Project XLC program for certain facilities in Steele
County, Minnesota. The terms of the project are defined in a Final
Project Agreement (FPA) which was made available for public review and
comment through a Federal Register notice on December 29, 1999 (64 FR
73047) and signed on May 31, 2000. In addition, EPA is promulgating a
site-specific rule, applicable only to the Steele County Sponsors who
are Participating Industrial Users, to facilitate implementation of the
project. This site-specific rule provides regulatory changes under the
Clean Water Act (CWA or the Act) to implement the Community XL project,
which will result in superior environmental performance. The site-
specific rule changes some of the requirements which apply to the
Sponsors who are Participating Industrial Users to promote a reduction
in the discharge of four priority metals, a reduction in water usage,
and the development of an Environmental Management System. An
incentive-based monitoring approach will be implemented, such that as
discharge reduction goals are met, monitoring frequency may be reduced,
mass-based limits will replace certain concentration limits, and an
alternative Significant Noncompliance (SNC) publication approach will
be tested. Monitoring reductions for pollutants determined not to be
present in an industry's wastestream will also be authorized.

DATES: This final rule is effective October 6, 2000. For judicial
review purposes, this rule is promulgated as of 1 p.m. (Eastern
Daylight Time) on October 6, 2000.

ADDRESSES: A docket containing the rule, Final Project Agreement, and
supporting materials is available for public inspection and copying at
U.S. EPA, Region V, Water Division, Room Number 15046, 77 West Jackson
Boulevard, Chicago, IL 60604-3507. The Office is open from 9 a.m. to 4
p.m. Monday through Friday, excluding federal holidays. The public is
encouraged to phone in advance to review docket materials. Appointments
can be scheduled by phoning Abeer Hashem at (312) 886-1331. Refer to
the Docket for the Steele County Site-Specific Rulemaking. The public
may copy a maximum of 100 pages at no charge. Additional copies cost 15
cents per page. Project materials are also available on the World Wide
Web at: http://www.epa.gov/projectxl/.
Supporting materials are also available for inspection and copying
at U.S. EPA, Headquarters, 401 M Street, SW., Room 445, West Tower,
Washington, DC 20460 during normal business hours. Persons wishing to
view the materials at the Washington, DC location are encouraged to
contact Ms. Kristina Heinemann in advance by telephoning (202) 260-
5355. In addition supporting materials are available at the Owatonna,
MN Public Library, 105 Elm Avenue, North, Owatonna, MN 55060. The phone
number for the library is 507-444-2460, TDD 507-444-2480.

FOR FURTHER INFORMATION CONTACT: Ms. Abeer Hashem or Mr. Matthew
Gluckman, U.S. Environmental Protection Agency, Region V, Water
Division, WC-15J or WN-16J, 77 West Jackson Boulevard, Chicago, IL
60604-3507. Ms. Hashem can be reached at (312) 886-1331 and Mr.
Gluckman can be reached at (312) 886-6089. Further information on
today's action may also be obtained on the world wide web at: http://www.epa.gov/projectxl/.

SUPPLEMENTARY INFORMATION: On May 8, 2000, the Environmental Protection
Agency proposed a site-specific rule (65 FR 26550) that set forth the
mechanism through which the Sponsors will attempt to reach discharge
reduction goals for chromium, copper, nickel, and zinc; reach water use
reduction goals; and commit to arrange and participate in training for
the development of an Environmental Management System (EMS), as
outlined in the Steele County Project XLC FPA (the document that
embodies the parties' intent to implement this project). Today's final
rule promulgates regulations that are identical to the proposed rule
and that include the final group of Participating Industrial Users
among those named in the May 8, 2000 proposal. Today's rule will
facilitate implementation of the FPA that has been developed by the
Steele County Project Sponsors, EPA, the Steele County Community
Advisory Committee (CAC), the Minnesota Pollution Control Agency
(MPCA), the Owatonna Waste Water Treatment Facility (OWWTF), the
Blooming Prairie Waste Water Treatment Facility (BPWWTF), and other
stakeholders. The FPA is available in the docket for today's action and
on the world wide web at http://www.epa.gov/projectxl/. The FPA
addresses the nine Project XLC criteria, and the expectation of EPA
that this XLC project will meet those criteria. Those criteria are: (1)
Environmental results superior to what would be achieved through
compliance with current and reasonably anticipated future regulations;
(2) economic opportunity; (3) stakeholder involvement, support and
capacity for community participation; (4) test of innovative, multi-
media, pollution prevention strategies for achieving environmental
results; (5) approaches that could be evaluated for future broader
application (transferability); (6) technical and administrative
feasibility; (7) mechanisms for monitoring, reporting, and evaluation;
(8) consistency with Executive Order 12898 on Environmental Justice
(avoidance of shifting of risk burden); and (9) community planning. The
FPA specifically addresses the manner in which the project is expected
to produce superior environmental benefits.
Today's rule will implement the provisions of this Project XLC
initiative that require regulatory changes. However, Minnesota has had
an approved State National Pollutant Discharge Elimination System
(NPDES) program since June 30, 1974, and an approved State pretreatment
program since July 16, 1979. Therefore, the requirements outlined in
today's rule will not take effect until Minnesota revises the Owatonna
pretreatment program as incorporated in the Owatonna NPDES permit. EPA
will not be the primary regulatory agency responsible for implementing
the

[[Page 59739]]

requirements of this rule. In addition, for the sake of simplicity, the
remainder of this preamble refers to the effects of this rule, although
it will be the corresponding State and local law and corresponding
NPDES and Industrial User permits by which the remaining implementation
of this XL project will be achieved.

Outline of Today's Document

The information presented in this preamble is organized as follows:

I. Authority
II. Background
A. Overview of Project XL and XLC
B. Overview of the Steele County XLC Project
1. Description of the Steele County Community XL Project
2. What Are the Environmental Benefits of the Project?
3. What are the Economic Benefits and Paperwork Reduction
Deriving from the Project?
4. Stakeholder Involvement
5. What is the Project Duration and Completion Date?
6. How Will EPA Ensure That Only Appropriate Sponsors Continue
To Receive Flexibility Under This Rule?
7. How May the Project be Terminated?
III. Rule Description
A. Clean Water Act Requirements, Pretreatment Streamlining
Proposal and Summary of Regulatory Requirements for the Steele
County XL Project
B. Changes to the Proposed Rule
IV. Response to Significant Public Comments
V. What Is the Effective Date of this Rule?
VI. Additional Information
A. How Does This Rule Comply with Executive Order 12866?
B. Is a Regulatory Flexibility Analysis Required?
C. Is EPA Required to Submit a Rule Report Under the
Congressional Review Act?
D. Is an Information Collection Request Required for This Rule
Under the Paperwork Reduction Act?
E. Does This Rule Trigger the Requirements of the Unfunded
Mandates Reform Act?
F. How Does This Rule Comply With Executive Order 13045:
Protection of Children from Environmental Health Risks and Safety
Risks?
G. How Does This Rule Comply with Executive Order 13132 on
Federalism?
H. How Does This Rule Comply with Executive Order 13084:
Consultation and Coordination With Indian Tribal Governments?
I. Does This Rule Comply with the National Technology Transfer
and Advancement Act of 1995 (``NTTAA'')?

I. Authority

EPA is promulgating this regulation under the authority of sections
307, 308, and 501 of the CWA, 33 U.S.C. 1317, 1318, 1361.

II. Background

A. Overview of Project XL and XLC

Each Project XL pilot-- ``eXcellence and Leadership'' is described
in a Final Project Agreement (FPA). For this Project XL for Communities
(XLC), the FPA sets forth the intentions of EPA, the Minnesota
Pollution Control Agency (MPCA) and the Steele County Community with
regard to a project developed under Project XLC, an EPA initiative to
allow regulated entities to achieve better environmental results using
common sense, cost effective strategies. This regulation will enable
implementation of the project. Project XL was announced on March 16,
1995, as a central part of the National Performance Review and the
EPA's effort to reinvent environmental protection. See 60 FR 27282 (May
23, 1995). Project XL provides a limited number of private and public
regulated entities an opportunity to develop their own pilot projects
to provide regulatory flexibility that will result in environmental
protection that is superior to that which would be achieved through
compliance with current and future regulations. These efforts are
crucial to EPA's ability to test new strategies that reduce the
regulatory burden and promote economic growth while achieving better
environmental and public health protection. EPA intends to evaluate the
results of this and other XL projects to determine which specific
elements of the project(s), if any, should be more broadly applied to
other regulated entities for the benefit of both the economy and the
environment.
Under Project XL, participants in four categories--facilities,
industry sectors, governmental agencies and communities--are offered
the flexibility to develop common sense, cost-effective strategies that
will replace or modify specific regulatory requirements on the
condition that they produce and demonstrate superior environmental
performance. Project XLC, excellence and leadership for communities,
was developed to focus on communities and local governments or regional
organizations that are interested in creating an XL project. See 60 FR
55569 (November 1, 1995). Project XLC encourages potential sponsors to
come forward with new approaches to demonstrate community-designed and
directed strategies for achieving greater environmental quality
consistent with community economic goals. To participate in Project
XLC, applicants must develop alternative pollution reduction strategies
pursuant to nine criteria: superior environmental results; stakeholder
involvement, support, and capacity for community participation;
economic opportunity; test of an innovative multi-media strategy;
transferability; feasibility; community planning; identification of
monitoring, reporting and evaluation methods; and equitable
distribution of environmental risks. Projects must have the full
support of affected federal, state and tribal agencies to be selected.
For more information about the XL and XLC criteria, readers should
refer to the three descriptive documents published in the Federal
Register (60 FR 27282, May 23, 1995; 60 FR 55569, November 1, 1995; and
62 FR 19872, April 23, 1997). For further discussion as to how the
Steele County XL Communities project addresses the XLC criteria,
readers should refer to the Final Project Agreement and fact sheet that
are available from the docket for this action (see ADDRESSES section of
today's preamble).
Project XL is intended to allow the EPA to experiment with untried,
potentially promising regulatory approaches, both to assess whether
they provide benefits at the specific facility affected, and whether
they should be considered for wider application. Such pilot projects
allow the EPA to proceed more quickly than would be possible when
undertaking changes on a nationwide basis. EPA may modify rules, on a
site- or State-specific basis, that represent one of several possible
policy approaches within a more general statutory directive, so long as
the alternative being used is permissible under the statute. Adoption
of such alternative approaches or interpretations in the context of a
given XL project does not, however, signal EPA's willingness to adopt
that interpretation as a general matter, or even in the context of
other XL projects. It would be inconsistent with the forward-looking
nature of these pilot projects to adopt such innovative approaches
prematurely on a widespread basis without first determining whether or
not they are viable in practice and successful for the particular
projects that embody them. Depending on the results in these projects,
EPA may or may not be willing to consider adopting the alternative
approach or interpretation again, either generally or for other
specific facilities.
EPA believes that adopting alternative policy approaches and/or
interpretations, on a limited, site- or State-specific basis and in
connection with a carefully selected pilot project, is consistent with
the expectations of Congress about EPA's role in implementing the
environmental statutes (so long as EPA acts within the

[[Page 59740]]

discretion allowed by the statute). Congress' recognition that there is
a need for experimentation and research, as well as ongoing
reevaluation of environmental programs, is reflected in a variety of
statutory provisions, e.g., section 104 of the CWA (33 U.S.C. 1254).

B. Overview of the Steele County XLC Project

1. Description of the Steele County Community XL Project Community-
Based Environmental Regulation
The Steele County XLC pilot project will test the effectiveness of
a community-based approach to industrial regulated wastewater effluent
reductions and water use reduction controls designed to: (1) Result in
pollution prevention; (2) meet the objectives of the CWA regulatory
program; and (3) be at least as protective of human health and the
environment as the current system. This project will pilot a community-
based approach to environmental regulation with the goal of achieving a
reduction in the discharge of certain metals to the OWWTF, and
Biological Oxygen Demand (BOD), Total Suspended Solids (TSS) and Total
Kjeldahl Nitrogen (TKN) to the BPWWTF. Other aspects of the pilot
program will include water usage reduction, the development and
implementation of a storm water and sewer water separation and
education plan, and the development of a training and assessment
program of an Environmental Management System. If this first phase of
the project is considered by the parties to be successful, a Phase II,
consisting in general outline of a multi-media approach to
environmental permitting based on overall community performance in the
areas of air emissions, solid waste, hazardous waste, chemical storage,
and community sustainability may be considered. Today's rule does not
cover or commit to a second phase of this project.
For the purposes of today's rule the group of Owatonna Sponsors who
are Participating Industrial Users, includes the following Industrial
Users (IUs) in the City of Owatonna: Crown Cork and Seal Company, Inc.;
Cybex International Inc.; Josten's Inc.-Southtown Facility; SPx
Corporation, Service Solutions Division; Truth Hardware Corporation;
and Uber Tanning Company. Two facilities included in the Owatonna
Sponsor group, Viracon-Marcon, Inc. and the Wenger Corporation and one
Sponsor located in Blooming Prairie, Minnesota, ATOFINA Chemicals, Inc.
(formerly Elf Atochem), are not receiving regulatory flexibility under
today's rule and are therefore not included as Participating Industrial
Users.
To achieve the objectives of Phase 1 of the Project, part of this
project will pilot an incentive-based approach to reduced monitoring
requirements. As the Owatonna Sponsors who are Participating Industrial
Users, as a group meet certain discharge reduction goals, the City may
reduce the required frequency of monitoring for any of the
Participating Industrial Users. Other aspects of this pilot program
include: (1) Pollutant monitoring may be eliminated where a pollutant
is not discharged; (2) in order to encourage water use reduction
compliance with a concentration-based Pretreatment Standard may be
demonstrated by compliance with an equivalent mass-based limit (as
discussed in section III. A.1. of this preamble); and (3) an
alternative publication process for Significant Noncompliance (SNC) may
be put in place. Finally, Sponsors may seek ``No Exposure Certification
for Exclusion from NPDES Storm Water Permitting'', which is available
under existing regulations (40 CFR 122.26(g), pursuant to a change in
the regulations found at 64 FR 68722 (December 8, 1999)), and does not
require flexibility under today's rule. Each of the elements of the
pilot program that require regulatory flexibility are explained in the
following sections of this preamble.
To achieve the objectives of this project the Participating
Industrial Users have committed to utilize their best efforts to reach
certain discharge reduction goals. Only if these goals are met will
regulatory flexibility regarding lesser monitoring requirements than
currently required under 40 CFR 403.12(e)(1) be granted. Specifically,
the Participating Industrial Users located in Owatonna (or the
``City'') commit to a 20% reduction goal in the amount of nickel,
chromium, copper, and zinc (by mass) they discharge to the OWWTF. These
reduction goals are for each individual pollutant. If the first 20%
reduction goal is met, a further 20% reduction goal may be set for the
remaining project term. If the initial 20% reduction goal is met for
all pollutants, the City may, at its discretion, reduce the self-
monitoring frequency of Owatonna Sponsors who are Participating
Industrial Users to once per year. If a second metal reduction goal is
set, it need not be achieved in order for the minimum monitoring
frequency to remain at once per year and no additional regulatory
relief is available upon meeting this second goal; accordingly, today's
rule does not address this second goal. In exercising the discretion
provided in today's rule, the OWWTF will be required to consider the
Participating Industrial User's previous three years of compliance
data, and may not reduce monitoring for pollutants where there is a
reasonable potential of violating Pretreatment Standards.
This project focuses on the four metals slated for 20% release
reductions because they are the metals determined to be discharged at
the highest levels to the Owatonna wastewater treatment system relative
to applicable water quality and biosolids criteria. In addition, the
participants are regulated for these pollutants under categorical
Pretreatment Standards and influence the loading of these pollutants to
the Owatonna wastewater treatment system. Specific reductions of other
categorically-regulated metals are not being pursued under this project
because they are released in small quantities relative to applicable
environmental criteria. Because certain of these other metals may be
present at some of the participant facilities, these metals may not
qualify for the elimination of monitoring due to no releases. In such
cases, the Publically-Owned Treatment Works (POTW) will need to require
continued monitoring of these metals. Through this rule the POTW will
be given the discretion to reduce monitoring frequencies for the other
categorically-regulated metals to the same extent it is being
authorized to consider reduced monitoring for the four metals subject
to the 20% reduction goals.
This project will also authorize the City to allow a Sponsor
Participating Industrial User subject to categorical Pretreatment
Standards to not sample for a pollutant, if it is not expected to be
present in its wastestream at levels greater than background levels in
its water supply. For such pollutants, the OWWTF will only be required
to conduct sampling and analysis once during the term of the
Participating Industrial User's permit. The Participating Industrial
User will still be subject to the categorical Pretreatment Standards
for pollutants determined not to be present, and will need to resume
monitoring if sampling indicates that a pollutant is present at above-
background levels, or at any time at the discretion of the OWWTF.
If the POTW determines that one or more pollutants are not expected
to be present at a Participating Industrial User, it may modify the
IU's permit to reduce or eliminate the monitoring requirements for the
pollutant(s). The Participating Industrial User permit will

[[Page 59741]]

also require the User to submit, as part of its regular semi-annual
monitoring reports, certification that there has been no increase of
the pollutant in its wastewater due to its activities. The POTW will
sample the Participating Industrial User's effluent for all pollutants
in the applicable categorical Pretreatment Standard at least once
during the term of the IU's permit.
One of the goals of this pilot project will be to facilitate water
conservation measures at the Sponsors' facilities. The total flow to
the OWWTF from the six Owatonna Sponsors who are Participating
Industrial Users is 415,000 gallons per day. The Owatonna Sponsors
commit to a goal in the FPA of reducing this flow by 10%. To facilitate
meeting this goal this rule allows the OWWTF to set equivalent mass
limits as an alternative to concentration limits to meet concentration-
based categorical Pretreatment Standards. Under the proposed rule
entitled ``Streamlining the General Pretreatment Regulations for
Existing and New Sources of Pollution'' (Pretreatment Streamlining
Proposal), which was published on July 22, 1999 (64 FR 39564), Control
Authorities would be allowed to establish alternative mass limits if an
Industrial User has installed Best Available Technology Economically
Achievable (BAT), or equivalent to BAT treatment, and the Industrial
User is employing water conservation methods and technologies that
substantially reduce water use (Control Authority is defined at 40 CFR
403.12 (a) and is a broad term that can mean a POTW with an approved
pretreatment program or the Approval Authority (defined at 40 CFR 403.3
(c)) where the POTW does not have an approved pretreatment program. The
City of Owatonna has an approved pretreatment program.). While all of
the conditions for receiving mass limits laid out in EPA's Streamlining
Proposal are not being required for this site-specific rule (see
discussion regarding Today's Rule in Equivalent Mass Limits for
Concentration Limits section of III.A), EPA is interested in
determining whether providing mass limits prior to full adoption of
water conservation practices will encourage more widespread adoption of
such practices. To ensure the continued appropriateness of the specific
mass limits, Sponsor industries who are Participating Industrial Users
will also be required to notify the City in the event production rates
are expected to vary by more than 20 percent from a baseline production
rate determined by Owatonna when it establishes a Participating
Industrial User's initial mass limits. The Participating Industrial
Users will be required to continue operation of at least the same level
of treatment as at the outset of the project. Upon notification of a
revised production rate, the City will reassess the appropriateness of
the mass limit. Sponsor ATOFINA Chemicals discharges 16,900 gallons per
day to the BPWWTF and commits in the FPA to a reduction goal of 10% of
this amount. Because ATOFINA Chemicals is currently required to comply
with mass-based limits, no change to its limits are required to
facilitate water conservation measures.
EPA is today promulgating a site-specific alternative procedure for
publishing Significant Noncompliance for Participating Industrial
Users. SNC is defined in 40 CFR 403.8(f)(2)(vii) as including
violations by an Industrial User which meet one or more of eight
specific criteria. Currently, POTWs are required to publish in the
largest daily newspaper in the municipality in which the POTW is
located a list of Industrial Users who have been in SNC at any time
during the previous twelve months. The SNC publication requirement
serves at least two important functions: (1) A deterrent effect on
Industrial Users to avoid noncompliance generally, and SNC
specifically, and (2) notice to the public of Significant
Noncompliance. One result of this approach is that, if the POTW
publishes the notice for a particular SNC violation after the end of
the twelve month period, the publication may not occur close in time to
the violation, resulting in a delay between the violation and the
notice to the public.
The intent of the alternative procedure promulgated today is to
require website notice of all SNC violations, and reserve additional
newspaper publication for cases where this format is needed for its
potentially greater effect. The Sponsors also intend to promote prompt
and appropriate assistance for identifying and correcting violations
through a unique community-based approach. Pursuant to the Steele
County FPA, an Owatonna Peer Review Committee will be established. This
Committee will consist of at least two Owatonna Sponsors not connected
to the noncompliance event being reviewed and any stakeholders that
wish to participate. The Peer Review Committee will investigate all
instances of noncompliance by an Owatonna Sponsor who is a
Participating Industrial User and provide recommendations and
assistance to expedite a return to compliance. The Peer Review
Committee will make recommendations to the City regarding whether or
not publication in a newspaper should occur, in addition to the website
publication described below. All recommendations by the Peer Review
Committee will be non-binding on the City, and the City must continue
to implement its State-approved Enforcement Response Plan. Under the
Steele County FPA, the Sponsors will take steps to conduct public
outreach on the information available regarding Significant and other
noncompliance by the Sponsors, including a description of the Peer
Review Committee and its functions, a Committee contact person and
telephone number, and notice of Peer Review Committee meetings. Such
outreach will include, but not be limited to, periodic (at least
annual) mailings to the identified Steele County XL community
stakeholders, and notice in the public library.
Any violation which is not corrected within thirty (30) calendar
days or which results in pass through (as defined at 40 CFR 403.3(n))
or interference (as defined at 40 CFR 403.3(i)) will continue to be
published in a newspaper as currently required in Part 403. All SNC
violations, whether published in a newspaper or not, will be published
as soon as is practicable on the MPCA web site. The website must
contain an explanation of how SNC is determined. A contact name and
phone number for information regarding all other violations must also
be listed on the MPCA website.
2. What Are the Environmental Benefits of the Project?
This XLC project is expected to achieve superior environmental
performance beyond that which is achieved under the current CWA
regulatory system by encouraging the Sponsors to work together in a
coordinated manner to efficiently reduce their discharges to the OWWTF.
As has been described, the Owatonna Sponsors who are Participating
Industrial Users have committed to 20% discharge reduction goals for
nickel, chromium, copper, and zinc. Although not receiving regulatory
flexibility under today's proposal, ATOFINA Chemicals has committed to
analogous discharge reduction goals for BOD, TSS, and TKN to the
BPWWTF. The Participating Industrial Users and the Blooming Prairie
Sponsor have additionally committed to a goal of at least a 10%
reduction in water usage. Besides the direct environmental benefits of
these reductions, the Sponsors have agreed to conduct an Environmental
Management System (EMS) assessment within eighteen

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months of the effective date of the project. In the first year of the
project, the Sponsors commit to arrange and participate in training for
the development of the EMS. The Sponsors will utilize the information
from the EMS assessment to reach the discharge reduction goals as well
as to examine their facilities for other possible environmental
improvements. The Sponsors have agreed to report to EPA and the MPCA
the results of the assessment and the suggestions which have been
adopted by each facility. Additionally, the City has identified storm
water infiltration into the collection system during wet weather events
as a major problem. The Owatonna Sponsors have agreed to work with the
City to help alleviate this problem through the development of
educational materials which will be distributed to Sponsor employees as
well as to the community at large. The Owatonna Sponsors have also
committed in the FPA to develop a plan to minimize storm water
infiltration into the sewer system at each participating facility.
One unique aspect of this pilot project is the desire of the
Sponsor facilities to work together to reach common goals. It is hoped
that this cooperation will go beyond the specific goals of this project
and result in presently unforseen environmental benefits.
3. What Are the Economic Benefits and Paperwork Reduction Deriving From
the Project?
This XLC Project will encourage the Sponsors to reduce water
consumption at their facilities. This may result in reduced water costs
for the facilities, without diminishing the level of environmental
protection. Assuming the Sponsors discharge lower levels of pollutants
to the OWWTF and the BPWWTF, these POTWs may benefit from lower
treatment costs. To the extent monitoring and reporting frequencies are
reduced under this project, reduced expenditures may result. The EMS
assessments may identify further environmental and economic benefits.
4. Stakeholder Involvement
Stakeholder involvement and participation is vital to the success
of the Steele County XLC project. The participants have worked through
a Community Advisory Committee, established by the Steele County
Project Sponsors, to ensure that the general public has had an
opportunity to be involved throughout the development of this project.
The participants will continue to work to foster full and open
communication between the general public and the project Sponsors.
In addition, the Peer Review Committee will continue to provide
opportunities for input from the community on important compliance
issues. For example, if a Sponsor is in noncompliance, the Peer Review
Committee will provide input to bring the Sponsor back into compliance.
Sponsors will continue outreach work with all stakeholders using the
strategies and tactics contained in their Proposed Stakeholder
Involvement Plan (June 1999). MPCA, the Steele County Sponsors,
Owatonna, Blooming Prairie, and EPA have been involved in the
development of this project, and support it. From the beginning of the
Steele County XLC process, there has been a high priority on providing
opportunity for diverse stakeholder input and review. Public meetings
were held in the city of Owatonna on June 9, July 27, and September 23,
1999.
5. What Is the Project Duration and Completion Date?
As with all XL projects testing alternative environmental
protection strategies, the term of the Steele County Community XL
project is one of limited duration. The duration of the regulatory
relief provided by this rule is anticipated to be five (5) years from
October 6, 2000 or until October 6, 2005. However, the project may be
terminated or suspended at any time for failure to comply with any of
the requirements of the rule. If the parties renew the Steele County
Community XL Final Project Agreement beyond its initial five year
period, then it may be necessary to extend this site-specific rule for
an additional period of time.
6. How Will EPA Ensure That Only Appropriate Sponsors Continue To
Receive Flexibility Under This Rule?
If EPA determines that it is appropriate to terminate Project
participation of one or more Sponsors who are Participating Industrial
Users, so that they will no longer be eligible to receive the
regulatory flexibility provided in today's rule, EPA will coordinate
with the POTW and State to make the necessary changes to the
Participating Industrial User's permit. EPA retains its enforcement
authority under the CWA to enforce Pretreatment Standards whether or
not the POTW or State make such changes to the Participating Industrial
User's permit.
7. How May the Project Be Terminated?
When the State modifies Owatonna's NPDES permit to incorporate the
flexibility in today's rule, it has agreed to include a reopener
provision enabling the State to eliminate this flexibility. The State
has agreed to use this reopener provision if the Project is terminated.
In the event of early Project termination, EPA will also eliminate the
provisions of proposed section 403.19 in advance of its October 6, 2005
expiration date.

III. Rule Description

A. Clean Water Act Requirements, Pretreatment Streamlining Proposal and
Summary of Regulatory Requirements for the Steele County XL Project

Equivalent Mass Limits for Concentration Limits (40 CFR 403.19(b))
1. Existing Requirements (40 CFR 403.6(c)). National categorical
Pretreatment Standards establish limits on pollutants discharged to
POTWs by facilities in specific industrial categories. The Pretreatment
Standards establish pollutant limitations in different ways for
different categories. EPA has established categorical Pretreatment
Standards that are: (1) Concentration-based standards that are
implemented directly as concentration limits; (2) mass limits based on
production rates; (3) both concentration-based and production-based
limits; and (4) mass limits based on a concentration standard
multiplied by a facility's process wastewater flow. The current
regulations do not allow a mass limit to substitute for a concentration
limit when the applicable standard is expressed in terms of
concentration. While 40 CFR 403.6(d) allows the Control Authority to
develop equivalent mass limits for concentration-based standards in
order to prevent dilution, the equivalent limit applies in addition to
the concentration limit. Today's rule allows a Participating Industrial
User who qualifies for flexibility under the rule to demonstrate
compliance with the categorical Pretreatment Standard by demonstrating
compliance with an equivalent mass-based limit alone.
2. The Pretreatment Streamlining Proposal. In its proposed rule
entitled Streamlining the General Pretreatment Regulations for Existing
and New Sources of Pollution (64 FR 39564, July 22, 1999) (Pretreatment
Streamlining Proposal), EPA proposed to allow Control Authorities to
set equivalent mass limits as an alternative to concentration limits to
meet concentration-based categorical Pretreatment Standards in cases
where an Industrial User has installed model treatment technology or a
treatment technology that yields optimum removal efficiencies, and the
Industrial User is employing water conservation methods

[[Page 59743]]

and technologies that substantially reduce water use. The Agency,
however, solicited comments on whether mass limits would be appropriate
in other situations. EPA proposed that 40 CFR 403.6(c) be revised to
clarify that equivalent mass limits may be authorized by the Control
Authority in lieu of concentration-based limits for Industrial Users.
The Control Authority would be required to document how the mass limits
were derived and make this information publicly available.
The July 22, 1999, proposed rule also specifically referenced the
Steele County XL Community Project and indicated that, if this project
were ready to proceed before EPA finalized the complete Pretreatment
Streamlining proposal, EPA may promulgate, based on that proposal and
comments received, a separate site-specific rule to allow the
industries involved in the Steele County XLC project to use, at the
discretion of the Control Authority, the change proposed for 40 CFR
403.6(c).
3. Today's Rule. To facilitate water use reduction by industries
involved in the Steele County XLC Project, EPA is allowing the City of
Owatonna, which is the Control Authority for the Owatonna Sponsor
industries, the Participating Industrial Users, to set equivalent mass
limits as an alternative to concentration limits to meet concentration-
based categorical Pretreatment Standards. For this site-specific rule,
EPA will not require Approval Authority review of equivalent mass-based
limits in addition to POTW approval because EPA believes that existing
Approval Authority oversight is sufficient to ensure that equivalent
mass-limits are properly calculated and applied. EPA expects that the
experience with Steele County on this element of today's rule may well
inform whether Approval Authority review should be required in the
Pretreatment Streamlining Proposal. Mass limits must be established by
multiplying the five year, long term average process flows of the
Participating Industrial Users (or a shorter period if production has
significantly increased or decreased during the five year period) by
the concentration-based categorical Pretreatment Standards. In general,
flows used to establish mass-based limits must be appropriate in
relation to current production or known future production, and will be
determined based on consultation between the industry and the City of
Owatonna. EPA's ``Guidance Manual for the Use of Production-Based
Pretreatment Standards and the Combined Wastestream Formula'', EPA833-
B-85-201, September 1985 provides additional guidance on establishing
appropriate long-term average flows.
Importantly, today's rule will not affect the applicability of
categorical Pretreatment Standards. Section 307(d) of the Clean Water
Act prohibits the owner or operator of any source from operating in
violation of any Pretreatment Standard. See 33 U.S.C. 1317(d). Today's
rule will simply allow a Participating Industrial User to demonstrate
compliance with a concentration-based Pretreatment Standard by meeting
a properly-calculated, mass-based equivalent. Today's rule does not
affect the underlying categorical Pretreatment Standard and, therefore,
does not improperly transfer standard-setting authority to the City of
Owatonna. Compliance with a mass-based limit may be used to demonstrate
compliance with a categorical Pretreatment Standard only to the extent
that the mass-based equivalent is properly calculated. In any event,
EPA retains its authority to oversee POTW implementation of categorical
Pretreatment Standards, including the authority to ensure that
equivalent mass-based limits correctly interpret and apply
concentration-based Pretreatment Standards. EPA notes that these
provisions are similar to the existing authority to allocate equivalent
mass limits or concentration limits for production-based standards. See
40 CFR 403.6(c)(2).
In return for this flexibility, the Sponsor industries, the
Participating Industrial Users, are committing as a group to reduce
water usage by 10 percent over the initial five-year project period. In
this site-specific rule EPA is not conditioning the availability of
mass-based limits on the use of water conservation methods and
technologies (as it would in the Pretreatment Streamlining Rule)
because EPA wishes to determine whether the structure of today's rule
would result in the desired reduction in water use without imposing
preconditions that may limit more widespread participation. For the
same reason, EPA is not requiring that Participating Industrial Users
generate complex technical studies to demonstrate the necessity of
equivalent mass-based limits. In addition, this rule will not require
that Participating Industrial Users utilize model treatment
technologies that serve as the basis for the applicable Pretreatment
Standards. Instead, EPA is interested in determining whether or not it
would be sufficient to prevent facilities from complying with the
applicable Standards, in the event of production decreases, by
requiring that the facility maintain at least the same level of
treatment as at the time an equivalent mass limit is established. To
ensure the continued appropriateness of the specific mass limits, the
Participating Industrial Users will also be required to notify the City
in the event production rates are expected to vary by more than 20
percent from the previous year's average. Upon notification, the City
will reassess the appropriateness of the mass limit.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF, and the City will need to revise IU
permits issued to Participating Industrial Users to enable it to
establish alternative mass limits. The City will also need to evaluate
its sewer use ordinance to determine if revisions are necessary to
implement the changes promulgated today.
Sampling for Pollutants Not Present (40 CFR 403.19(c))
1. Existing Requirements (40 CFR 403.12(e), 403.8(f)(2)(v)).
Currently, 40 CFR 403.12(e)(1) requires Industrial Users subject to
categorical Pretreatment Standards to submit reports to the Control
Authority at least twice a year, indicating the nature and
concentration of all pollutants in their effluent that are limited by
the Standards. 40 CFR 403.8(f)(2)(v) requires Control Authorities to
sample these Industrial Users at least annually. Sampling is currently
required for all pollutants limited by a categorical Pretreatment
Standard, even if certain pollutants regulated by the Standard are not
reasonably expected to be present.
2. The Pretreatment Streamlining Proposal. The July 22, 1999
Pretreatment Streamlining proposal would authorize a Control Authority
to allow an Industrial User subject to categorical Pretreatment
Standards to not sample for a pollutant if the pollutant is not
expected to be present in its wastestream in a quantity greater than
the background level present in its water supply, with no increase in
the pollutant due to the regulated process. The Agency also proposed a
reduced sampling requirement for the POTW, to once per permit term,
once it had determined that a pollutant was not expected to be present.
The Pretreatment Streamlining proposal would require the Control
Authority's decision to waive sampling to be based upon both sampling
and other technical data, such as the raw materials, industrial
processes, and potential by-products. EPA did not propose that a
specific amount of

[[Page 59744]]

sampling data be required but solicited comment on that issue.
3. Today's Rule. For purposes of this project, and as specified in
Attachment C of the FPA, the City will be authorized to allow a Sponsor
Participating Industrial User subject to categorical Pretreatment
Standards to reduce the required sampling to less than twice per year,
or to not sample for a pollutant, if it is not expected to be present
in its wastestream at levels greater than background levels in its
water supply, with no increase in the pollutant due to the regulated
process. For such pollutants, the POTW will only be required to conduct
sampling and analysis once during the term of the Participating
Industrial User's permit. The Participating Industrial User will still
be subject to the categorical Pretreatment Standards for pollutants
determined not to be present, and will be in violation of the limit and
will need to resume the required sampling if existing sampling
indicates the User has violated the limit.
Consistent with the Pretreatment Streamlining Proposal, for
purposes of this project, determinations by the City of Owatonna to
either waive or reduce Participating Industrial User sampling to less
than twice per year will be based on both sampling and other technical
data, such as raw material usage, industrial processes, and potential
by-products. Existing data on pollutant concentrations of the local
public water supply will be used to characterize background
concentrations; where a Participating Industrial User uses an
alternative water supply, representative influent sampling will need to
be provided. At least three years of Participating Industrial User
effluent data will then be compared to the background data in making
the determination that a given pollutant is not expected to be present.
In addition, the city will need to make its determination based on its
knowledge of the raw materials used and the facility's processes and
potential by-products, but will not consider capability and efficiency
of the User's pretreatment system. Where it believes it is necessary to
make a determination, the City may require a Participating Industrial
User to provide representative data on its untreated effluent.
Once the POTW determines that one or more pollutants are not
expected to be present at a Participating Industrial User, it may
modify the Participating Industrial User's permit to reduce or
eliminate the monitoring requirements for the pollutant(s). The IU
permit must also require the Participating Industrial User to submit,
as part of its regular semi-annual monitoring reports, certification
that there has been no increase in the pollutant in its wastewater due
to its activities. The POTW must sample the Participating Industrial
User's effluent for all pollutants in the applicable categorical
Pretreatment Standard at least once during the term of the
Participating Industrial User's permit.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF, and the City will need to revise
Participating Industrial User permits issued to Sponsor facilities to
enable it to eliminate monitoring for pollutants not present. The City
will also need to evaluate its sewer use ordinance to determine if
revisions are necessary to implement the changes promulgated today.
Monitoring Frequency Reductions (40 CFR 403.19(e))
1. Existing Requirements (40 CFR 403.12(e)). As discussed above, 40
CFR 403.12(e)(1) currently requires Industrial Users subject to
categorical Pretreatment Standards to submit reports to the Control
Authority twice a year, or more frequently if required by the
Pretreatment Standard or the POTW, indicating the nature and
concentration of all pollutants in their effluent that are limited by
the Pretreatment Standards. The City of Owatonna generally requires its
significant IUs to monitor and report on a quarterly basis.
2. Today's Rule. Upon initiation of this project, the City will
evaluate the recent performance of Sponsor Participating Industrial
Users, and may reduce monitoring requirements to twice per year for
facilities with satisfactory compliance records. After the first metal
reduction goal of 20% is met, the City will be authorized, at its
discretion, to reduce the self-monitoring frequency of Participating
Industrial Users for any regulated pollutant to once per year. EPA
believes that this mechanism will provide an incentive for
Participating Industrial Users to reduce their contribution of the
specified metals. In exercising this discretion, the OWWTF will be
required to consider the Participating Industrial User's previous three
years of compliance data, and cannot reduce monitoring for pollutants
where there is a reasonable potential of violating Pretreatment
Standards.
The loading values that were specified in the proposed rule have
been adjusted in today's rule based on a 20 percent reduction from the
baseline loadings from the final group of Owatonna Participating
Industrial Users.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF, and the City will need to revise
Participating Industrial User permits issued to Sponsor facilities to
reduce monitoring frequencies for regulated pollutants. The City will
also need to evaluate its sewer use ordinance to determine if revisions
are necessary to implement the changes promulgated today.
Significant Noncompliance Criteria (40 CFR 403.19(f))
1. Existing Requirements (40 CFR 403.8(f)(2)(vii)). ``Significant
Noncompliance'' (SNC) is defined in 40 CFR 403.8(f)(2)(vii) to include
violations that meet one or more of eight criteria. The criteria are:
(1) Chronic violations of discharge limits (where 66 percent of all
measurements taken during a six-month period exceed the daily maximum
limit or the average limit for the same pollutant parameter); (2)
technical review criteria (TRC) violations (where 33 percent or more of
all measurements for each pollutant parameter taken during a six-month
period equal or exceed the product of the daily maximum limit or the
average limit multiplied by the applicable TRC (TRC equals 1.4 for BOD,
TSS, fats, oil and grease and 1.2 for all other pollutants except pH));
(3) any other violation of a pretreatment effluent limit that the
Control Authority determines has caused, alone or in combination with
other discharges, interference or pass through; (4) any discharge of a
pollutant that has caused imminent endangerment to human health,
welfare or to the environment or has resulted in the Control
Authority's exercise of its emergency authority to halt or prevent such
a discharge; (5) failure to meet, within 90 days after the schedule
date, a compliance schedule milestone contained in a local control
mechanism or enforcement order for certain activities; (6) failure to
provide required reports within 30 days after the due date; (7) failure
to accurately report Noncompliance; and (8) any other violation or
group of violations which the Control Authority determines will
adversely affect the operation or implementation of the local
Pretreatment Program.
On July 24, 1990, EPA modified 40 CFR 403.8(f)(2)(vii) to include
the existing definition of SNC (55 FR 30082). The purpose of this
modification was to provide some certainty and consistency among
Control Authorities for publishing their

[[Page 59745]]

lists of Industrial Users in Noncompliance. Under this provision,
Control Authorities are required to annually publish a list of
Industrial Users in SNC at any time during the previous twelve months.
The Control Authority must publish this list in the largest daily
newspaper published in the municipality in which the POTW is located.
Independent of this publication requirement, Control Authorities are
required to develop and implement Enforcement Response Plans, which
describe the range of enforcement responses they will use in addressing
various types of IU Noncompliance. Where an IU is identified as being
in SNC, EPA guidance recommends that the Control Authority respond with
some type of formal enforcement action such as an enforceable order
(``Guidance for Developing Control Authority Enforcement Response
Plans,'' EPA 832-B-89-102, September 1989.)
2. The Pretreatment Streamlining Proposal. EPA did not propose to
amend the entire provision on SNC, or even seek comment on all of it.
Instead, the Agency proposed limited changes and sought comment on a
number of options for a few specific provisions. With respect to
publication, the primary purposes of which are to notify the public of
violations and provide a disincentive for violating, EPA proposed to
amend 40 CFR 403.8(f)(2)(vii) to allow publication of the SNC list in
any paper of general circulation within the jurisdiction served by the
POTW that provides meaningful public notice. EPA also proposed to amend
the SNC criteria so that they must only be applied to Significant
Industrial Users, and to address more than just daily maximum and
monthly average limits. The Agency also sought comments on whether to
revise the Technical Review Criteria, whether to revise the SNC
criteria for late reports, and whether to codify the rolling quarters
approach to determining SNC or adopt some other approach.
3. Today's Rule. Under today's site-specific rule, the City will
have the discretion to not publish certain instances of SNC by Sponsor
Participating Industrial Users in a newspaper. EPA believes that this
change will provide faster public notice of SNC and will reserve
additional newspaper publication of SNC for cases where this format is
needed for its potentially greater effect. The City will continue to be
required to provide newspaper publication of any violation which is not
corrected within thirty (30) calendar days, or which results in pass
through or interference. All SNC violations, whether published in a
newspaper or not will be published as soon as is practicable, on the
MPCA web site. The web site will contain an explanation of how SNC is
determined, as well as a contact name and phone number for information
regarding all other violations. The Owatonna Peer Review Committee
system contemplated in the Steele County FPA will not be specified
expressly in the rule, but rather is a voluntary agreement on the part
of the Sponsors.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF. The City will also need to evaluate
its sewer use ordinance to determine if revisions are necessary to
implement the changes promulgated today.

B. Changes to the Proposed Rule

EPA received no public comments on the proposed rule. EPA has made
only one change to the proposed rule. The final rule includes the final
list of Participating Industrial Users and adjusts the average daily
loadings for chromium, copper, nickel and zinc in Sec. 403.19(e) of the
proposal to reflect participation of the final group of Participating
Industrial Users.

IV. Response to Significant Public Comments

EPA received no public comments on the proposed rule.

V. What Is the Effective Date of This Rule?

Pursuant to 5 U.S.C. 553(d)(1), EPA is making this rule effective
immediately upon publication because it relieves a restriction in that
it reduces monitoring requirements and as such has the effect of
reducing regulatory requirements for the Participating Industrial
Users. In addition, pursuant to 5 U.S.C. 553(d)(3), EPA finds that good
cause exists to make this rule effective immediately. The Owatonna
Wastewater Treatment Plant and six Participating Industrial User
facilities are the only regulated entities affected by this rule. The
Owatonna Wastewater Treatment Facility and the Participating Industrial
Users have had full notice of this site-specific rule. Making the rule
immediately effective will allow the MPCA to issue a revised NPDES
permit to the Owatonna Wastewater Treatment Facility sooner.

VI. Additional Information

A. How Does This Rule Comply With Executive Order 12866?

Under Executive Order 12866 (58 FR 51735, October 4, 1993) EPA must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency; (3) Materially alter the
budgetary impact of entitlement, grants, user fees, or loan programs or
the rights and obligations of recipients thereof; or (4) Raise novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in the Executive Order.
Because the annualized cost of this rule will be significantly less
than $100 million and will not meet any of the other criteria specified
in the Executive Order and because this rule affects only six specific
private sector facilities and a single Publically-Owned Treatment Works
(POTW), it is not a rule of general applicability or a ``significant
regulatory action'' and therefore not subject to OMB review and
Executive Order 12866.
Further today's rule does not affect the POTW or the facilities
unless they choose on a voluntary basis to participate in the XL
project. Finally, OMB has agreed that review of site-specific rules
under Project XL is not necessary.

B. Is a Regulatory Flexibility Analysis Required?

Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et
seq.
The RFA generally requires an agency to prepare a Regulatory
Flexibility Analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Under section 605(b) of the RFA, however, if the head of an agency
certifies that a rule will not have a significant economic impact on a
substantial number of small entities, the statute does not require the
agency to prepare a Regulatory Flexibility Analysis. Pursuant to
section 605(b), the Administrator certifies that this rule will not
have a significant economic impact on a substantial number of small
entities for the reasons explained below.

[[Page 59746]]

Consequently, EPA has not prepared a Regulatory Flexibility Analysis.
Small entities include small businesses, small organizations and
small governmental jurisdictions. For purposes of assessing the impacts
of today's rule on small entities, small entity is defined as: (1) A
small business according to RFA default definitions for small business
(based on SBA size standards); (2) a small governmental jurisdiction
that is a government of a city, county, town, school district or
special district with a population of less than 50,000; and (3) a small
organization that is any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
Today's rule amends EPA's General Pretreatment Regulations to
modify on a site-specific basis the requirements for pretreatment
programs. The rule authorizes the Owatonna, Minnesota Waste Water
Treatment Facility, in its discretion, to reduce the required frequency
of monitoring for Participating Industrial Users. Only one POTW is
subject to this rule and grant of the relief authorized by the rule
will reduce costs to the Owatonna Wastewater Treatment Facility's
Participating Industrial Users, including any Industrial User that is a
small business. Under these circumstances, EPA has concluded that the
rule will not have a significant economic impact on a substantial
number of small entities.

C. Is EPA Required To Submit a Rule Report Under the Congressional
Review Act?

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 the Comptroller General of the United
States. Section 804, however, exempts from section 801 the following
types of rules: Rules of particular applicability, rules relating to
agency management or personnel, and rules of agency organization,
procedure, or practice that do not substantially effect the rights or
obligations of non-agency parties. 5 U.S.C. 804 (3). EPA is not
required to submit a rule report regarding today's action under section
801 because this is a rule of particular applicability affecting just
six private sector facilities and one POTW.

D. Is an Information Collection Request Required for This Rule Under
the Paperwork Reduction Act?

This action applies to six companies and a single POTW and
therefore requires no information collection activities subject to the
Paperwork Reduction Act, and therefore no Information Collection
Request (ICR) was submitted to the Office of Management and Budget
(OMB) for review in compliance with the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
E. Does This Rule Trigger the Requirements of the Unfunded Mandates
Reform Act?
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why the
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
As noted above, this rule is limited to the OWWTF and certain
sponsoring industries. This rule will create no federal mandate because
EPA is imposing no new enforceable duties. EPA has also determined that
this rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year.
Thus, today's rule is not subject to the requirements of sections 202
and 205 of the UMRA. Nevertheless, in developing this rule, EPA worked
closely with MPCA and the OWWTF and received meaningful and timely
input in the development of this rule.

F. How Does This Rule Comply With Executive Order 13045: Protection of
Children From Environmental Health Risks and Safety Risks?

Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant,''
as defined under Executive Order 12866; and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This action is not subject to
Executive Order 13045 because it is not economically significant as
defined in Executive Order 12866. This rule does not impose any new or
amended standards for discharged wastewater resulting from treatment by
a POTW. With respect to the effects on children, the collection,
treatment and disposal of wastewater occurs in a restricted system
(e.g., buried sewer lines and fenced wastewater treatment plants) that
children are unlikely to come in contact with on a routine basis. This
rule has no identifiable direct impact upon the health and/or safety
risks to children and adoption of the regulatory changes will not
disproportionately affect children. This rulemaking is thus in
compliance with the intent and requirements of the Executive Order.

[[Page 59747]]

G. How Does This Rule Comply With Executive Order 13132 on Federalism?

Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The requirements outlined in
today's rule will not take effect unless Minnesota chooses to adopt
equivalent requirements through revisions to Owatonna's NPDES permit
and Owatonna chooses to take the steps to implement the rule and make
revisions to any local law and Industrial User permits. Thus, the
requirements of section 6 of the Executive Order do not apply to this
rule. Although section 6 of Executive Order 13132 does not apply to
this rule, EPA did fully coordinate and consult with State and local
officials in developing this rule.

H. How Does This Rule Comply With Executive Order 13084: Consultation
and Coordination With Indian Tribal Governments?

Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities''. Today's rule does not
significantly or uniquely affect the communities of Indian tribal
governments. There are no communities of Indian tribal governments
located in the vicinity of Steele County. Accordingly, the requirements
of section 3(b) of Executive Order 13084 do not apply to this rule.

I. Does This Rule Comply With the National Technology Transfer and
Advancement Act of 1995 ``NTTAA'')?

Section 12(d) of NTTAA, Public Law 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary standards. This
rulemaking sets equivalent means of expressing the same technical
standards, and of determining compliance with those standards. It also
uses voluntary goals to achieve pollutant reductions beyond those
required by the technical standards. Therefore, EPA is not considering
the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 403

Environmental protection, Confidential business, Reporting and
recordkeeping requirements, Waste treatment and disposal, Water
pollution control.

Dated: September 29, 2000.
Carol M. Browner,
Administrator.

For the reasons set out in the preamble, part 403, title 40,
chapter I of the Code of Federal Regulations is amended as follows:

PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW
SOURCES OF POLLUTION

1. The authority citation for part 403 continues to read as
follows:

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

2. Section 403.19 is added to read as follows:

Sec. 403.19 Provisions of specific applicability to the Owatonna Waste
Water Treatment Facility.

(a) For the purposes of this section, the term ``Participating
Industrial Users'' includes the following Industrial Users in the City
of Owatonna, Minnesota: Crown Cork and Seal Company, Inc.; Cybex
International Inc.; Josten's Inc.--Southtown Facility; SPx Corporation,
Service Solutions Division; Truth Hardware Corporation; and Uber
Tanning Company.
(b) For a Participating Industrial User discharging to the Owatonna
Waste Water Treatment Facility in Owatonna, Minnesota, when a
categorical Pretreatment Standard is expressed in terms of pollutant
concentration the City of Owatonna may convert the limit to a mass
limit by multiplying the five-year, long-term average process flows of
the Participating Industrial User (or a shorter period if production
has significantly increased or decreased during the five year period)
by the concentration-based categorical Pretreatment Standard.
Participating Industrial Users must notify the City in the event
production rates are expected to vary by more than 20 percent from a
baseline production rate determined by Owatonna when it establishes a
Participating Industrial User's initial mass limit. To remain eligible
to receive equivalent mass limits the Participating Industrial User
must maintain at least the same level of treatment as at the time the
equivalent mass limit is established. Upon notification of a revised
production rate from a Participating Industrial User, the City will
reassess the appropriateness of the mass limit. Owatonna shall
reestablish the concentration-based limit if a Participating Industrial
User does not

[[Page 59748]]

maintain at least the same level of treatment as when the equivalent
mass limit was established.
(c) If a categorical Participating Industrial User of the Owatonna
Waste Water Treatment Facility has demonstrated through sampling and
other technical factors, including a comparison of three years of
effluent data with background data, that pollutants regulated through
categorical Pretreatment Standards, other than 40 CFR part 414, are not
expected to be present in quantities greater than the background
influent concentration to the industrial process, the City of Owatonna
may reduce the sampling frequency specified in Sec. 403.8(f)(2)(v) to
once during the term of the categorical Participating Industrial User's
permit.
(d) If a Participating Industrial User is discharging to the
Owatonna Waste Water Treatment Facility in Owatonna, Minnesota and is
subject to a categorical Pretreatment Standard other than one codified
at 40 CFR part 414, the City of Owatonna may authorize the
Participating Industrial User to forego sampling of a pollutant if the
Participating Industrial User has demonstrated through sampling and
other technical factors, including a comparison of three years of
effluent data with background data, that the pollutant is not expected
to be present in quantities greater than the background influent
concentration to the industrial process, and the Participating
Industrial User certifies on each report, with the following statement,
that there has been no increase in the pollutant in its wastestream due
to activities of the Participating Industrial User. The following
statement is to be included as a comment to the periodic reports
required by Sec. 403.12(e):

``Based on my inquiry of the person or persons directly
responsible for managing compliance with the pretreatment standard
for 40 CFR ______, I certify that, to the best of my knowledge and
belief, the raw materials, industrial processes, and potential by-
products have not contributed this pollutant to the wastewaters
since filing of the last periodic report under 40 CFR 403.12(e).''

(e) If the average daily loading from the Participating Industrial
Users to the Owatonna Waste Water Treatment Facility is equal to or
less than 0.68 pounds per day of chromium, 0.25 pounds per day of
copper, 1.17 pounds per day of nickel, and 1.01 pounds per day of zinc,
Owatonna may authorize a categorical Participating Industrial User to
satisfy the reporting requirements of Sec. 403.12(e) with an annual
report provided on a date specified by Owatonna, provided that the
Participating Industrial User has no reasonable potential to violate a
Pretreatment Standard for any pollutant for which reduced monitoring is
being allowed, and has not been in Significant Noncompliance within the
previous three years.
(f) The Owatonna Waste Water Treatment Facility in Owatonna,
Minnesota shall post public notice of all Significant Noncompliance
subject to the publication requirement in Sec. 403.8(f)(2)(vii) at the
Minnesota Pollution Control Agency website for a period of one year, as
soon as practicable upon identifying the violations. In addition, the
Owatonna Waste Water Treatment Facility shall post an explanation of
how Significant Noncompliance is determined, and a contact name and
phone number for information regarding other, non-Significant
Noncompliance violations. If a violation is not corrected within thirty
(30) calendar days or results in pass through or interference at the
Owatonna Waste Water Treatment Facility, publication must also be made
in the format specified in Sec. 403.8(f)(2)(vii).
(g) The provisions of this section shall expire on October 6, 2005.

[FR Doc. 00-25746 Filed 10-5-00; 8:45 am]
BILLING CODE 6560-50-P