[Federal Register Volume 65, Number 219 (Monday, November 13, 2000)]
[Rules and Regulations]
[Pages 67638-67651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28709]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 132
[FRL-6898-7]
RIN 2040-AD32
Final Rule To Amend the Final Water Quality Guidance for the
Great Lakes System To Prohibit Mixing Zones for Bioaccumulative
Chemicals of Concern
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today EPA is promulgating the final rule to amend the Final
Water Quality Guidance for the Great Lakes System (Guidance) to
prohibit mixing zones for bioaccumulative chemicals of concern (BCCs)
in the Great Lakes System, subject to certain exceptions for existing
discharges. For existing discharges, the regulation prohibits mixing
zones for BCCs starting 10 years after the publication date of the
final BCC mixing zone rule. New discharges of BCCs are subject to the
mixing zone prohibition immediately upon commencing discharge. EPA had
promulgated a mixing zone provision similar to this regulation on March
23, 1995, as part of the Guidance required by section 118(c)(2) of the
Clean Water Act. The provision was vacated by the U.S. Court of Appeals
for the District of Columbia Circuit in the case of American Iron &
Steel Institute v. EPA, 115 F.3d 979 (D.C. Cir. 1997), and was remanded
to the Agency for further consideration. In response to the Court's
remand, EPA published a proposal on October 4, 1999, to amend the
Guidance to reinstate the provision to prohibit mixing zones for BCCs
(64 FR 53632). EPA received many comments from stakeholders throughout
the United States on its proposal to prohibit mixing zones for BCCs in
the Great Lakes Basin. This final rule reflects EPA's reconsideration
of the factual record in response to the Court's remand and public
comments received on its proposal.
EFFECTIVE DATE: December 13, 2000.
ADDRESSES: The public docket for this rulemaking, including the
proposed rule, economic analysis, and other supporting documents, are
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 Mary Willis Jackson at (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).
SUPPLEMENTARY INFORMATION:
Potentially Affected Entities
Entities potentially affected by today's action are those
discharging or intending to discharge BCCs to waters of the United
States in the Great Lakes System. Categories and entities that may
ultimately be affected include the following:
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Examples of potentially
Category affected entities
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Industry................................ Industries discharging or
intending to discharge BCCs
to waters in the Great Lakes
System as defined in 40 CFR
132.2.
Municipalities.......................... Publicly owned treatment works
discharging or intending to
discharge BCCs to waters of
the Great Lakes System as
defined in 40 CFR 132.2
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather is
presented to provide a guide for readers regarding regulated entities
likely to be affected by this action. Listed in the table are the types
of entities that EPA is now aware could potentially be affected by this
action. Other types of entities not listed in the table also could be
affected. To determine whether your facility is affected by this
action, you should examine carefully the definition of ``Great Lakes
System'' in 40 CFR 132.2 and examine the preamble to 40 CFR part 132,
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 section titled FOR FURTHER
INFORMATION CONTACT.
I. Legal Authority
This regulation is promulgated under the authority of sections 118,
301, 303, 402, and 501 of the Clean Water Act (CWA).
II. Introduction
Section 118(c)(2) of the CWA, as amended by the Great Lakes
Critical Programs Act of 1990, required EPA to publish proposed and
final water quality guidance on minimum water quality standards,
antidegradation policies, and implementation procedures for the Great
Lakes System. On March 23, 1995, EPA published a final rule entitled
``Final Water Quality Guidance for the Great Lakes System'' (Guidance)
in order to satisfy this
[[Page 67639]]
requirement. See 60 FR 15366. The 1995 Guidance included ambient water
quality criteria for 29 pollutants, including BCCs, that reflect the
maximum ambient concentrations of those pollutants that could be
present in waters of the Great Lakes Basin without impairing aquatic
life, wildlife, or human health. The 1995 Guidance also included
implementation procedures that Great Lakes States and Tribes are to use
to prepare total maximum daily load (TMDL) analyses and to develop
water quality-based effluent limits (WQBELs) for facilities discharging
these pollutants. See 40 CFR part 132.
The Great Lakes States are the States of Illinois, Indiana,
Michigan, Minnesota, Ohio, New York, Pennsylvania, and Wisconsin. The
Great Lakes Tribes are those Tribes as defined in 40 CFR 132.2. Great
Lakes Tribes consist of any Tribe within the Great Lakes Basin for
which EPA has approved water quality standards under section 303 or
that EPA has authorized to administer a National Pollutant Discharge
Elimination System (NPDES) program under section 402 of the CWA.
Among the implementation procedures in the 1995 Guidance was
procedure 3.C in appendix F. Under this procedure, NPDES permits would
have been prohibited from including mixing zones in the calculation of
water quality-based effluent limits for new discharges of BCCs after
March 23, 1997, or for existing discharges of BCCs after March 23,
2007. EPA also codified exceptions for existing discharges to account
for water conservation and technical and economic considerations.
Great Lakes States and Tribes were required to adopt water quality
standards, antidegradation policies, and implementation procedures
consistent with the criteria methodologies, policies, and
implementation procedures specified in the 1995 Guidance by March 23,
1997, and to submit them to EPA for approval or disapproval. See 40 CFR
132.5. In the event EPA disapproves all or part of a State's or Tribe's
submission, EPA would publish a final rule identifying the provisions
of part 132 that shall apply to discharges in that State or Tribal
reservation. See 40 CFR 132.5(f)(2).
The 1995 Guidance was challenged in the U.S. Court of Appeals for
the District of Columbia Circuit. On June 6, 1997, the Court issued a
decision upholding virtually all of the provisions contained in the
1995 Guidance (American Iron and Steel Institute, et al. v. EPA, 115
F.3d 979 (D.C. Cir. 1997)); however, the Court vacated the provisions
of the Guidance that would have eliminated mixing zones for BCCs (115
F.3d at 985). The Court held that EPA had ``failed to address whether
the measure is cost-justified,'' and remanded the provision to EPA for
an opportunity to address this issue (115 F.3d at 997). In response to
the Court's remand, EPA re-examined the factual record, including its
cost analyses, and published the Proposal to Amend the Final Water
Quality Guidance for the Great Lakes System to Prohibit Mixing Zones
for Bioaccumulative Chemicals of Concern in the Federal Register on
October 4, 1999 (64 FR 53632). EPA received numerous comments, data,
and information from commenters in response to the proposal.
After reviewing and analyzing the information in the rulemaking
record, including those comments, EPA has developed the Final Rule to
Amend the Final Water Quality Guidance for the Great Lakes System to
Prohibit Mixing Zones for Bioaccumulative Chemicals of Concern, to be
codified in appendix F, procedure 3.C of 40 CFR part 132. This preamble
describes the background and purpose of this final rule, briefly
summarizes the rule's major provisions, and summarizes the major issues
in the public comments received on the proposal and EPA's responses to
them. A detailed discussion of EPA's analysis of comments and issues,
as well as its reasons for issuing the final rule to prohibit mixing
zones for BCCs in the Great Lakes Basin, are provided in additional
technical and supporting documents, which are available in the docket
for this rulemaking. Copies of the supporting documents also are
available from EPA in electronic format (see section VIII of this
preamble). For a detailed discussion of the rule's major provisions,
please see the preamble to the proposed rule.
III. Summary of the Final Regulation
Today, EPA is promulgating the final rule to amend 40 CFR part 132,
appendix F, procedure 3, to reinstate the mixing zone provisions for
BCCs. A mixing zone is the area beyond a point source outfall (e.g., a
pipe) in which concentrations of a particular pollutant from a
wastewater discharge mix with receiving waters. The water is allowed to
exceed the water quality criterion for that pollutant within the mixing
zone. Behind the theory of using mixing zones is the belief that by
mixing with the receiving waters within the zone, the discharge will
become sufficiently diluted to meet applicable water quality criteria
beyond the borders of that zone.
Today's rulemaking prohibits or, for existing discharges, phases
out mixing zones for BCCs in the Great Lakes System subject to certain
exceptions. This means that NPDES permit limitations for BCCs
discharged to the Great Lakes System must be set no higher than water
quality criteria. Under today's rule, the phase-out of mixing zones is
to occur, in most cases, by November 15, 2010. EPA believes this is a
reasonable time frame because five out of the eight Great Lakes States
have similar State-adopted BCC mixing zone provisions and the remaining
three States have been aware since 1997 of EPA's intention to reinstate
this provision. See 63 FR 20107 (April 23, 1998). In addition, EPA has
not chosen to reduce the phase-out period to less than 10 years (the
time frame originally promulgated in the 1995 Guidance), to allow
affected dischargers the same time (approximately 10 years) they would
have had under the original BCC mixing zone provision.
Under this amendment to Part 132, the mixing zone prohibition would
be limited to BCCs--the pollutants of primary concern in the Great
Lakes System. EPA's regulations applicable to the Great Lakes System
define a BCC, in essence, as any chemical that (1) accumulates in
aquatic organisms by a human health bioaccumulation factor (BAF)
greater than 1000 (after considering various specified factors), and
(2) has the potential upon entering surface waters to cause adverse
effects, either by itself or in the form of its toxic transformation
product, as a result of that accumulation. See 40 CFR 132.2. The table
below lists the BCCs subject to today's rule.
Bioaccumulative Chemicals of Concern (BCCs)
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------------------------------------------------------------------------
Lindane................................... Mirex
Hexachlorocyclohexane (BHC)............... Hexachlorobenezene
alpha-Hexachlorocyclohexane............... Chlordane
beta-Hexachlorocyclohexane................ DDD
delta-Hexachlorocyclohexane............... DDT
Hexachlorobutadiene....................... DDE
Photomirex................................ Octachlorostyrene
1,2,4,5-Tetrachlorobenzene................ PCBs
Toxaphene................................. 2,3,7,8-TCDD
Pentachlorobenzene........................ Mercury
1,2,3,4-Tetrachlorobenzene................ Dieldrin
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There are two components of this rule. First, today's rule
prohibits the establishment of mixing zones for new discharges of BCCs
to the Great Lakes
[[Page 67640]]
System. This prohibition takes effect as soon as EPA has approved the
State's or Tribe's submission with respect to this prohibition or
publishes a notice identifying that prohibition as applying within the
State's or Tribe's jurisdiction. The definition of ``new discharge''
can be found at procedure 3.C.2 of today's rule. All other discharges
of BCCs are defined as existing discharges.
Second, this regulation prohibits mixing zones for existing
discharges of BCCs after November 15, 2010, subject to two exceptions:
(1) promotion of water conservation; and (2) technical and economic
considerations. EPA recognizes that, as a result of water conservation
measures, concentrations of a BCC in an effluent may increase slightly,
while the mass of the BCC being discharged does not. Therefore, the
first exception would allow States and Tribes to grant mixing zones for
any existing discharge of BCCs even after November 15, 2010 in cases in
which it can be demonstrated that failure to grant a mixing zone would
preclude water conservation measures that would lead to overall load
reductions in BCCs, even though higher concentrations of BCCs may occur
in the effluent. This mixing zone exception is virtually identical to
the provision promulgated in 1995.
Regarding the exception for technical and economic considerations,
a State or Tribe could authorize a mixing zone for existing discharges
of BCCs after November 15, 2010 if the State or Tribe determines that
(a) the discharger complies with all applicable requirements of CWA
sections 118, 301, 302, 303, 304, 306, 307, 401, and 402 (including
existing NPDES water quality-based effluent limitations) for the BCC
for which the mixing zone is requested, and (b) the discharger has
reduced and will continue to reduce--to the maximum extent possible--
its discharge of the BCC for which the mixing zone is requested. This
exception would not be available if cost-effective pollution prevention
and/or other control and treatment strategies exist that make it
technically feasible for the discharger to achieve the applicable water
quality criteria at the point of discharge, and if the discharger, or
affected community or communities, will not suffer unreasonable
economic effects in implementing such strategies.
EPA has modified the technical and economic feasibility provision
from the 1995 Guidance to clarify the importance of implementing only
those control strategies determined to be cost-effective. EPA expects
that exceptions to the BCC mixing zone provision will be granted solely
at the discretion of the State or Tribe on a case-by-case basis. See
procedure 3.C.5 and 6 for more information on exceptions to the
provisions contained herein. EPA received no comments concerning any
aspects of either exception as proposed.
To date, the States of Illinois, Indiana, Minnesota, Michigan, and
Wisconsin have adopted and submitted to EPA requirements to eliminate
or, for existing discharges, to phase out mixing zones for BCCs. If
these requirements are retained by the five States, and if EPA
determines that they are as protective as today's final rule, EPA will
approve those submissions under the procedures set forth in 40 CFR
132.5(f). Any Great Lakes State or Tribe that has not adopted BCC
mixing zone provisions as protective as those in today's rule (e.g.,
New York, Ohio, Pennsylvania) will need to adopt such provisions and
submit them to EPA for approval or disapproval pursuant to 40 CFR 132.5
by May 13, 2002, see 40 CFR 132.5(a) and (c) (as amended by today's
rule.). If a Great Lakes State or Tribe fails to submit such
provisions, or if EPA disapproves the submission, EPA, after giving the
State or Tribe an opportunity to make necessary changes, will publish a
final rule no later than November 13, 2002 identifying the provisions
of today's rule that shall apply to discharges within that State's or
Tribe's jurisdiction. See 40 CFR 132.5(c), (d) and (f).
IV. Comments on the Proposed Regulation
EPA solicited comments on the intended amendment in the ``Proposal
to Amend the Final Water Quality Guidance for the Great Lakes System to
Prohibit Mixing Zones for Bioaccumulative Chemicals of Concern,'' which
was published in the Federal Register on October 4, 1999 (64 FR 53632).
The following sections summarize comments received and EPA's responses.
A. Support for the Regulation
Some commenters on the proposal of this rule support the
elimination of mixing zones for BCCs in the Great Lakes System. The
majority of these comments address issues such as (1) the consistency
between the final rule, the goals of the CWA, and the goals of the
Great Lakes Water Quality Agreement (GLWQA), (2) the inappropriateness
of mixing zones for BCCs due to BCCs' persistence in the environment,
and (3) the adverse health effects BCCs impose on fish and other
aquatic organisms, wildlife, and humans. Commenters also urged EPA to
extend the proposed rule so that it encompasses other national waters,
to apply the prohibition to chemicals other than BCCs, and to include
chemicals with BAFs lower than the current 1000 cutoff that was
established in the 1995 Guidance. These issues and requests are
discussed throughout the remainder of this section.
Phasing out existing mixing zones for BCCs and prohibiting new
mixing zones for BCCs will ensure that the 1995 Guidance achieves the
goals of the CWA and the objectives of the GLWQA, which is an
international agreement between the United States and Canada to restore
and maintain the environmental integrity of the Great Lakes ecosystem.
Several commenters pointed out that today's rule is an important and
necessary step toward achieving the GLWQA's goals to virtually
eliminate persistent and bioaccumulative toxics (Article II.a) and to
reduce mixing zones to the maximum extent possible (Article IV.f). EPA
acknowledges the consistency between today's rulemaking and the
objectives of the GLWQA and is promulgating this amendment in an effort
to conform to goals that work toward mending and upholding the
integrity of the Great Lakes System.
As part of this effort, EPA has judged that mixing zones for BCCs
(even of the limited size already authorized by 40 CFR part 132 under
certain conditions) for existing discharges should be prohibited to the
greatest extent technically and economically possible. A large number
of scientists, policy makers, and other stakeholders in the Great Lakes
and Canada agree on the need to virtually eliminate BCCs from the Great
Lakes Basin and to reduce the size of BCC mixing zones to the maximum
extent possible. This is because BCCs, due to their persistent and
bioaccumulative nature, are incompatible with mixing zones. By
definition, BCCs are chemicals that do not degrade over time. These
chemicals accumulate in organisms living in the water and become more
concentrated as they move up the food chain--from biota to fish and
wildlife to humans. Because the effects of these chemicals are not
mitigated by dilution, using a mixing zone to ``dilute'' BCC discharges
is not appropriate. Commenters pointed out that dilution and dispersion
are inadequate substitutes for removing and treating the BCCs before
they are discharged to the Great Lakes' waters. EPA agrees with these
commenters because it is the mass of BCCs that poses a problem, not
just the concentration. Because dioxins, mercury, polychlorinated
biphenyls (PCBs) and other BCCs degrade over long periods of time or do
not degrade at all, their
[[Page 67641]]
buildup in pockets of sediments creates ``hot spots'' in the
environment in which bioaccumulation of toxics in fish and other
aquatic organisms can occur at levels that significantly exceed safe
levels for consumption by wildlife and humans. The 1995 Guidance
required a minimum 10:1 dilution ratio for lake discharges and 25
percent of the critical stream flow for tributary discharges in
calculating mixing zones for all pollutants, including BCCs. See 40 CFR
part 132, appendix F, procedure 3.D and 3.E. Larger mixing zones also
are allowed if a particular demonstration is performed. See 40 CFR part
132, appendix F, procedure 3.F. Thus, with the currently allowable
dilution, the mass of BCCs discharged from point sources to the Great
Lakes System could be reduced significantly--by a factor of 10 to 100
in certain circumstances--when mixing zones for BCCs are prohibited.
Commenters on EPA's proposal support today's rule because of its
ability to help decrease the amount of BCCs to which fish, wildlife,
and humans are exposed. The commenters recognize the adverse effects
BCCs have on human health and wildlife and that even small
concentrations can increase the risks of cancer, organ failure, and a
host of other maladies. One commenter noted that contaminating any
waterbody with persistent toxic substances that accumulate in the food
chain is never rational. Furthermore, it should not be justifiable
public policy.
Because the food web that accumulates BCCs can be concentrated in
tributaries, bays, and other areas where natural sinks exist--and where
fish species are more diverse and productive--the elimination of mixing
zones will reduce the probability of adverse effects on these organisms
and those that consume them. Fewer pollutants entering the waters will
reduce the detrimental effects already discovered in various fish
species and wildlife.
In aquatic organisms, effects of BCCs range from death to
impairment of reproduction, development, and growth (Sweeney et al.,
1993). In wildlife, birds exposed to BCCs have exhibited biochemical
dysfunction and metabolic effects, behavioral/neurological disorders,
and reproductive impairment (Elliott et al., 1996).
For humans, as is true for wildlife, the main route of exposure to
BCCs is through the consumption of Great Lakes fish, which have
``uptaken'' and retained the pollutants from their surrounding
environment and food. Potential adverse human health effects resulting
from the consumption of contaminated fish include both the increased
risk of cancer and the potential for systemic or noncancer risks such
as kidney damage (U.S. EPA, 1997). As affirmed by commenters who
support today's rule, women who are pregnant and children, in
particular, are at risk for being adversely affected by BCCs (U.S. EPA,
1997). BCCs can induce inheritable chromosomal changes in women that
could result in birth defects in their infants, cross the human
placenta contributing to exposure of the fetus through placental
transfer, and accumulate in body tissues. Exposure to BCCs can result
in decreased fertility, premature labor, spontaneous abortion,
reproductive hormone disorders, increased stillbirths, lack of mammary
function, reduced libido, and delayed estrus.
Children may be at greater risk than adults. Because BCCs can
accumulate in human milk, women exposed to the pollutants who
breastfeed could potentially pass the chemicals on to their infants.
Risks to infants and children include central nervous system effects,
mortality, low IQ scores, cataracts, congestive heart failure, skin
disorders, cancers, immune system dysfunction and immunosuppression,
skeletal disorders, neurological/behavioral effects, and
endocrinological disorders.
In addition to supporting EPA in its rationale behind the rule, as
summarized in the above paragraphs, many commenters strongly advised
EPA to expand the proposed rule so that the regulations apply
nationwide, not just for the Great Lakes System, and that the BCC
mixing zone phase-out should cover chemicals other than BCCs. One
commenter noted that, although lakes lend themselves to the most easily
quantifiable demonstration of risk to a particular subpopulation, the
discharge of BCCs into moving waterbodies is no less problematic. EPA,
under a separate undertaking, is evaluating whether mixing zones for
BCCs should be prohibited in other national waters and for chemicals
other than BCCs.
Commenters also urged EPA to propose an amendment that would
address chemicals with a BAF that falls short of the cutoff established
by the Guidance. These commenters claimed that the risks to wildlife
and humans from chemicals with lower BAFs might be just as severe as
those chemicals with BAFs of greater than 1000, particularly when
wildlife and humans are exposed to a mix of chemicals found within
fish. In response, EPA believes that the current BAFs are sufficient to
protect water quality and human health. The Agency wishes to point out,
however, that 40 CFR 132.1(d) provides that the methodologies for
establishing BAFs and criteria for pollutants, including BCCs, will be
evaluated and revised, as appropriate, every three years.
In summary, these commenters stated their support for today's rule.
Although some hope to see an extension of the mixing zone prohibition,
many were satisfied with the step forward that this rule is making in
helping to meet the objectives of the CWA.
B. Benefits Associated With Phase-out and Elimination of Mixing Zones
for BCCs
A few commenters asserted that the proposed rule contained no
evidence or documentation that restrictions on NPDES dischargers would
produce any measurable change in the levels of BCCs in water, sediment,
or fish tissue. Others claimed that the proposal would yield no
benefits because five of the Great Lakes States have already adopted a
similar prohibition on BCC mixing zones and, to date, no mixing zone
credit exists for cases in which water quality exceeds applicable water
quality standards. One commenter estimated that annual benefits of the
proposal would amount to no more than $1.3 to $4.1 million.
EPA disagrees with these claims. EPA believes that the mixing zone
prohibition is necessary to protect the integrity of the Great Lakes
and that its benefits derive from the minimization or avoidance of the
adverse effects summarized in the preceding section. The Court that
struck down an earlier version of this regulation noted that EPA had
adequately explained the environmental importance of eliminating mixing
zones for BCCs. In addition, numerous scientists, policy makers, and
other stakeholders in the United States and Canada are urging EPA to
reduce the size of BCC mixing zones to the maximum extent possible,
which would be a step forward in trying to virtually eliminate BCCs
from the Great Lakes Basin as called for by the GLWQA.
Because BCCs are harmful to the environment, any discharge of
BCCs--even those discharges that are equivalent to the applicable water
quality criteria-have the potential to impair the integrity of the
receiving waterbody. Using mixing zones to increase the amount of
allowable discharge exacerbates this situation because the effects of
BCCs are not limited to the short term, or localized zone of initial
dilution, meaning that adverse effects could occur far outside the
mixing zone and long after the BCC discharge occurred.
[[Page 67642]]
Since point sources affect waterbodies and, hence, fish tissue on a
site-specific basis, removing fish advisories and restoring waters
requires a reduction in the mass of BCCs that accumulate in
depositional areas of the Great Lakes. The bottom levels of the food
web biomagnify BCCs that concentrate in these sinks, affecting the
higher levels of species that tend to be more productive in these
areas. Prohibiting mixing zones for BCCs in the Great Lakes System can
reduce the natural sink masses below point source discharges by a
factor of 10 to 100 in some circumstances.
EPA reiterates that one of the primary purposes of the 1995
Guidance and, by extension, today's rule is to promote pollution
prevention. Approximately one-third of the more than 360 hazardous
pollutants in the Great Lakes System could have acute or chronic toxic
effects on aquatic life, wildlife, and human health. Had the Guidance's
framework been in place 30 years ago when the effects of PCBs from
point source discharges began to emerge, States could have moved
quickly to control these pollutants, avoiding millions of dollars in
cleanup costs, human health impacts, and other environmental damage.
Prompted by today's rule, dischargers can use pollutant minimization to
control pollutants before new water quality problems arise. With low
concentrations of new chemicals being introduced into the environment
every year, it would be prudent to try to avoid future cleanup costs
now.
Although EPA was not able to quantify all of these benefits in its
analysis of the final Guidance as promulgated in March 1995, the Agency
believes today's rule is an integral part of the framework created by
the Guidance for the type of preventative measures mentioned above. EPA
believes that these and other benefits derived from the Guidance and
today's rule are indeed significant and, further, draws attention to
the potential high costs of future cleanup that, without the help of
the BCC mixing zone prohibition, may someday need to be addressed.
Some commenters asserted that the proposed rule would yield no
benefits because some Great Lakes States have already adopted a similar
prohibition on BCC mixing zones (e.g., Indiana). EPA observes that
these commenters do not make the corresponding argument that the rule
has no costs in those States. As noted above, the benefits and costs of
the rule are directly linked to reducing the mass loading of BCCs to
the waterbody. EPA has chosen to assess costs and benefits in these
States because EPA would be required to impose these measures through a
Federal promulgation if those Great Lakes States withdraw or fail to
submit such voluntarily adopted measures.
As for the claim that the annual benefits of the prohibition will
be between $1.3 million and $4.1 million, EPA believes that this is an
understatement and was made based on a misconception of the methodology
EPA used in the Guidance. When EPA developed the 1995 Guidance, EPA did
not estimate benefits for the entire Great Lakes Basin; rather, EPA
estimated values for three case-study areas only. An extrapolation to
the whole Great Lakes Basin from this small number of case studies, as
the commenter has done, is inappropriate because EPA was able to
estimate basinwide benefits for one benefit category only, and was not
able to quantify all categories of benefits even for the three case-
study areas (for example, there is no methodology for monetizing
noncancer health effects from pollutants like mercury). Nor was EPA
able to account for avoided future contamination and cleanup in its
analysis of benefits. EPA believes that any disparity between the
environmental justification for today's rule (which the Court found to
be adequately explained) and estimates of monetary benefits is the
result of not being able to account for all potential benefits in
dollar values.
C. Source Controls, Pollution Prevention, and Waste Minimization
A number of commenters expressed the opinion that EPA, in its
proposal, failed to support its statement that dischargers can comply
with the prohibition through product substitution, cleaner
technologies, and source controls. These commenters believe that it is
unlikely that many publicly-owned treatment works (POTWs) would be able
to achieve additional pollutant reductions through source controls
alone, particularly for mercury. Some commenters also asserted that EPA
did not evaluate the cost impacts on indirect dischargers.
EPA disagrees with these comments. The record shows that it will be
technically and economically feasible for many dischargers, including
POTWs, to phase out mixing zones for BCCs during the 10-year phase out
period. Although EPA acknowledges that at present it may be difficult
to identify potential sources of pollutants within POTW service areas,
as analytical methods continue to improve, so should the POTWs'
abilities to identify and control sources of BCCs and to educate the
public on how to prevent pollution by avoiding household products that
contain high levels of BCCs or substituting for those products ones
that are BCC-free or more environmentally friendly. As discussed below,
EPA also considered the cost impact on indirect dischargers.
Even though many facilities may face challenges in achieving
effluent limitations derived from Great Lakes standards for mercury,
EPA's record shows that when facilities try to control mercury they
have been able to achieve significant reductions in their discharge
levels. As described in more detail below, in many cases these
reductions have been attained by source control, not end-of-pipe
treatment. These approaches succeed for other BCCs as well. Less costly
than end-of-pipe treatment, source controls have included efforts to
control more diffuse sources of BCCs, such as households using lindane-
containing products and have resulted in substantial increases in the
percentages of BCC removals (U.S. EPA, 1999).
One commenter argued that all POTWs will have a hard time meeting
effluent limits for mercury unless a mixing zone is allowed. The two
primary reasons for this belief are (1) that POTWs currently have high
concentrations of mercury in influents from domestic sources alone
(according to the commenter an approximate median of 110 ppt), and (2)
that pollution prevention is cost-effective for industrial users only.
The conclusion reached by this commenter, then, is that end-of-pipe
treatment would need to be added if stringent limitations based on
mercury water quality criteria (1.3 ng/L) are to be met. EPA believes
that both of the reasons given overstate the issue and that the
conclusion is based on an incorrect premise. EPA acknowledges that many
POTWs have high concentrations of mercury in their influent and agrees
that these high levels need to be significantly reduced if POTWs are to
meet the stringent effluent limits contemplated by today's rule. The
mere fact that high mercury concentrations exist, however, does not
mean that they cannot be controlled at the source, prior to the time
they arrive at the POTW. Indeed, EPA's record shows that source
controls, pollution prevention, and waste minimization often are far
more efficient and cost effective than end-of-pipe treatment for
mercury. EPA does not agree that cost-effective opportunities typically
occur for POTWs only when there are industrial sources with high
loading rates. EPA acknowledges that if the great majority of mercury
in a POTW's influent is derived from one or two
[[Page 67643]]
sources, obviously it would be easier and more cost-effective to
control those sources than it would be to control other, more diverse
sources. Nonindustrial sources, however, such as dental and medical
facilities, often discharge high concentrations of mercury. These
sources are usually classified as ``domestic'' rather than
``industrial'' discharges. In those few cases in which POTWs have
seriously attempted to reduce mercury from domestic sources,
significant measures of success from control of commercial facilities
in ``domestic'' wastewater have been achieved. While dental and medical
facilities tend to be more widely distributed than ``industrial''
facilities, reductions in discharges can be organized through a variety
of programs that include campaigns directed toward dental and medical
practices and public education. In some cases, dental and medical
offices are required to remove mercury prior to discharging to sewers.
The bottom line is that the treatment of more concentrated wastestreams
at the source or pollution prevention at the source is more likely to
be cost-effective than treating diluted wastestreams at the POTW.
EPA understands that the control of mercury from ``domestic''
sources would entail costs on the part of the POTW, but such costs are
likely to be considerably smaller than those required for end-of-pipe
treatment. In sum, the most cost-effective way in which POTWs can
substantially reduce mercury discharges thus appears to be pollution
prevention and waste minimization. These programs can focus on high
concentration high volume industrial discharges to the collection
system as well as high concentration low volume discharges, such as
those coming from medical and dental facilities. As evidence, EPA
provides the example of the Western Lake Superior Sanitary District
(WLSSD), which, after evaluating the costs involved in meeting more
stringent water quality-based effluent limits for mercury with end-of-
pipe treatment, concluded that pollution prevention techniques were the
preferable control strategy. As of 1996, WLSSD had successfully reduced
mercury concentrations at the wastewater treatment plant by more than
74% from 1990 dry sludge levels (from 4.50 ppm to 1.15 ppm) and by more
than 97% from 1990 effluent levels (from 0.58 ppb to 0.015 ppb), which
brought WLSSD well into compliance with its existing WQBEL. Additional
examples of source control programs can be found in Overview of P2
Approaches at POTWs, Draft, Office of Science and Technology, March
(U.S. EPA, 1999). EPA believes that facilities like WLSSD, with the use
of super clean analytical methods to better identify and characterize
sources of mercury, will be able to advance their pollution prevention
efforts to further reduce the levels of mercury in their sludge and
effluent as mixing zones are phased out over the next 10 years.
Further, EPA believes that recent data submitted by the Association
of Metropolitan Sewerage Agencies (AMSA) support EPA's position that
product substitution, cleaner technologies, and source controls are the
most efficient and cost-effective means of reducing BCCs. These data
indicate that POTWs are achieving, on average, about 97 percent removal
of mercury from their influent with an average effluent discharge
concentration of about 9 parts per trillion (ppt or ng/L). Wastewater
from industrial and commercial establishments, however, such as
hospitals, medical waste incinerators, industrial laundries, medical/
dental/clinical laboratories, dental offices, and others, can be
discharged directly to the POTW's wastewater collection system
virtually unregulated at concentrations that exceed 1 million ppt.
Indeed, AMSA's data indicate that influent mercury concentrations at
the headworks of POTWs range from 50 ppt to 1300 ppt.
What this means is that POTWs are channeling a significant amount
of mercury into their sludge (approximately 30 to 40 tons nationally),
which results in a release of chemicals into the environment when the
sludge is disposed of through incineration or land-application
practices. EPA estimates that between 0.6 and 1.9 tons of mercury are
emitted each year from sewage sludge incinerators in the vicinity of
the Great Lakes Basin. In essence, pollutants are merely being
transferred from one medium to another. Therefore, EPA believes that
the solution to controlling mercury releases to the environment is not
to change the medium from the POTW's influent to its sludge and
effluent, but to either prevent mercury from entering the wastewater
collection system at the source through product substitution, waste
minimization, or process modification, or by removing and recycling
mercury at the source (i.e., employing source controls) using state-of-
the-art technology. Such cost-effective source controls, which will
prevent additional environmental releases, provide an auxiliary
environmental benefit to today's rulemaking.
In conclusion, pollution prevention (including product substitution
by households), waste minimization, and source controls for high
concentration low volume industrial and commercial discharges (as well
as high concentration high volume discharges) to the POTW's collection
system, are the most cost-effective approaches to reducing overall
environmental releases to water, as well as to air and land. At
facilities in which these approaches have been implemented, substantial
reductions in BCC concentrations, including mercury concentrations in
POTW influents, sludges, and effluents, have been achieved. Where these
reductions are insufficient to meet WQBELs, POTWs can seek an exception
to the mixing zone prohibition. A condition for eligibility is that the
facility has and will continue to implement controls or pollution
prevention measures to reduce or ultimately eliminate the BCC. Thus,
aggressive pollution prevention efforts may well achieve the necessary
reductions to meet a WQBEL with no mixing zone, but if not, will help
the facility to qualify for an exception.
With respect to costs, in 1995, EPA estimated potential costs to
indirect dischargers of implementing the Guidance with the mixing zone
provision to be between $6.6 million and $19.9 million per year (in
1994 dollars). In addition, EPA's estimate of total costs to direct and
indirect dischargers to implement the Guidance in 1995 (including the
mixing zone provision) of $60 million to $380 million per year included
source control costs for POTWs (i.e., costs to control indirect
discharges). EPA's analysis of today's rule provides an estimate of the
portion of the $60 million to $380 million cost range that is
attributable to just the phase out and elimination of mixing zones. By
including costs for source controls at POTWs, EPA's cost estimates
reflect costs that could be passed on to dischargers to POTWs. EPA also
conducted an analysis of potential impacts on small entities. Although
this analysis looks at small dischargers that are direct dischargers
(the Guidance only regulates direct dischargers), EPA did not find a
significant impact on small entities. In addition, an independent
economic analysis of the Guidance (including the BCC mixing zone
prohibition) concluded that it would have an imperceptible impact on
the region's economy (DRI/McGraw-Hill, 1993). Thus, EPA can only
conclude that the impacts on many industries discharging to POTWs will
not be significant.
[[Page 67644]]
D. Other Cost Issues Related to Rulemaking Implementation
A commenter from California expressed concern that end-of-pipe
treatment would be necessary to meet water quality-based effluent
limitations based on water quality criteria for BCCs in the Great Lakes
and that such treatment would cost $2.45 billion to implement in
California alone. Additional commenters cited an Ohio study that
reported that EPA's cost estimates were too low and that the
elimination of mixing zones for BCCs in the Great Lakes will result in
significant costs for dischargers.
EPA disagrees with the claim that today's rule would force the
construction and operation of extraordinary treatment. As discussed
earlier EPA believes that an aggressive pollutant minimization program
consisting of source controls, pollution prevention (e.g., product
substitution or process modification), and public education, can attain
effluent limits based on achieving criteria end-of-pipe. While there
are new data showing that mercury comes from a variety of sources and
products (e.g., industrial, commercial, household), no one to date has
demonstrated that an aggressive long-term pollutant minimization
program containing these features has failed in this regard, or that,
as a result, the State or community had to force the construction of
extraordinary end-of-pipe treatment that was later determined to be
cost ``ineffective'' with no environmental benefit. In addition, the
sampling results presented by AMSA for mercury at POTWs in and out of
the Great Lakes Basin do not provide evidence that Great Lakes
standards for BCCs cannot be met without end-of-pipe treatment. EPA
recognizes that discharges from some facilities exceed the mercury
criterion, but, based on results from facilities that have tried to
control mercury, significant reductions in discharge levels have been
achieved. In many cases, these reductions have been attained by source
control, not end-of-pipe treatment, demonstrating the feasibility of
this approach. (Refer to section IV.C for more discussion on the
benefits of source controls). EPA also notes that if, after ten years,
it appears that a pollution minimization program at a facility will not
achieve the necessary BCC reductions, today's rule affords States and
Tribes the flexibility to authorize BCC mixing zones when additional
controls are not technically feasible or cost-effective.
Even though the rule is only applicable to the Great Lakes Basin,
EPA disagrees with the claim that implementing the rule in California
would cost $2.45 billion. The cost tables offered by the commenter to
support this estimate do not provide information on the current levels
of mercury or other BCC concentrations in California POTWs, the
estimated reductions needed to achieve revised standards for BCCs, or
the treatment already in place at these facilities. Instead, the cost
tables provide only calculations of a worst-case estimate assuming all
California POTWs would need to implement lime precipitation, carbon
adsorption, and reverse osmosis. A thorough facility-level analysis,
which was not furnished by the commenter, is essential if the commenter
wishes to provide meaningful cost estimates. Further, EPA has not seen
impacts of the magnitude indicated by the commenter in other regions of
the country that have aggressive water quality standards programs.
Moreover, data for California POTWs evaluated by EPA as part of
analysis of the California Toxics Rule do not support the claim that
all POTWs would need end-of-pipe treatment to meet criteria end-of-pipe
for mercury and other BCCs in California.
With respect to comments regarding the Ohio mercury study, EPA
believes that Ohio's alternative cost analysis for mercury is not
compelling here because it assumes that end-of-pipe treatment is
necessary in cases when EPA would conclude otherwise. EPA believes that
this is an artificial analysis of the options required of dischargers.
EPA's own estimates instead assume a combination of end-of-pipe
treatment and lower cost alternatives such as process modification,
waste minimization, pollution prevention, source controls, and public
education. In addition, Ohio's estimates are also not comparable to
EPA's because they reflect not only the costs of today's mixing zone
rule but also costs associated with the Guidance promulgated in 1995.
EPA's estimates for today's rule reflect only the impact of the BCC
mixing zone provision, not the impact of the entire 1995 Guidance.
Using this estimate, as well as information on the contribution of air
sources to mercury water concentrations in Ohio, Ohio adopted a
variance provision for mercury for point source dischargers that
requires dischargers, in order to obtain the variance, to implement a
plan of study and pollutant minimization plan for identifying and
reducing loadings of mercury. Thus, Ohio variance provision employs
much the same control strategies contemplated by EPA.
E. Point Source Loadings
Some commenters on EPA's proposed rule argued that point sources
contribute a relatively insignificant amount of BCCs (mercury, in
particular) when compared to the total accumulation of BCCs in the
Great Lakes caused by other sources, such as atmospheric deposition.
EPA disagrees with the assertion that point source loadings are
insignificant and believes that comparing the total contribution of
BCCs from point sources and atmospheric sources to the entire Great
Lakes System often ignores the nature of point source discharges and
their spatial impact on the environment. Macro-scale analyses of the
atmospheric contribution of BCCs to the Great Lakes System is not
comparable with localized point source studies because those analyses
assume that atmospheric deposition is constant and uniform over a
significantly larger geographical area like the Great Lakes Basin. The
water column concentrations from air deposition derived from such
assumptions simply assume that the Great Lakes Basin is one unique,
enormous, completely mixed system. These assumptions are used by
researchers who study the fate and transport of pollutants on a large-
scale system, not by researchers who address localized impacts on a
much smaller scale, such as the ones created by point source
dischargers.
By their very nature, point source discharges create ``hot spots''
within the Great Lakes System where elevated concentrations of BCCs
have a potential adverse impact on aquatic life, wildlife, and human
health. In other words, a point source discharge does not disperse and
mix completely throughout the entire Great Lakes System, as is assumed
for BCCs from atmospheric deposition. Therefore, comparing
contributions from the two sources on such a large scale conceals the
real impact of BCCs from point source discharges. In fact, when
assessing the impact of a point source discharge, water quality
analysts do not perform a mass balance on the entire lake system, but
rather on the specific zone of influence of the point source discharge
where atmospheric deposition may be insignificant and generally not
taken into account.
F. TMDLs and Other CWA Issues
Some commenters asserted that a BCC mixing zone prohibition is
inconsistent with the Clean Water Act and implementing regulations and
they argue that EPA erroneously concluded that mixing zones are never
permissible
[[Page 67645]]
in impaired waters. Others assert that today's rule would interfere
with States' abilities to control discharges through a TMDL process.
Other commenters simply assert that BCC mixing zones should be
available wherever the area of impact from the discharge is not
biologically significant.
With respect to the first assertion, the question of when and
whether mixing zones (for any pollutant) are permissible in impaired
waters is outside the scope of today's rule. Today's rule applies only
after the permitting authority has determined that a mixing zone for
BCCs might otherwise be available in the Great Lakes System under the
Clean Water Act and State and federal implementing regulations and
standards. Today's rule establishes restrictions on the availability of
such mixing zones. In addition, the general availability of mixing
zones in impaired waters was not relevant to EPA's cost estimates for
today's rule. Rather, EPA estimated its costs for this rule based on
the perhaps over-broad assumption that mixing zones for BCCs would be
available throughout the Great Lakes for each discharger with known or
suspected BCC discharges.
EPA's discussion in the preamble to the proposed rule about the
availability of mixing zones in impaired waters generated considerable
concern that EPA was announcing a new policy banning mixing zones in
impaired waters. EPA does not have a general policy on the availability
of mixing zones in impaired waters at this time and generally defers to
States on this issue. What the preamble discussion reflected was the
application of provisions in procedure 3 governing the calculation of
wasteload allocations in various situations. Under procedure 3.B.c.3,
background levels of the pollutant must be accounted for in determining
wasteload allocations (WLAs). When background levels of the pollutant
for which a mixing zone is sought already exceed the applicable
criterion in the receiving water, there may be no available dilution,
despite the availability of a mixing zone. (Exceptions might be where
there are no currently available data for calculating background values
as provided in 3.B.9 or where anticipated loading reductions would
lower background levels (see 3.C.3.b.iii) and ``free up'' assimilative
capacity for use in calculating WLAs.) Thus, the preamble discussion in
the proposal used the absence of a mixing zone as a simplified way of
discussing other procedures that might have the same effect when
calculating WLAs for discharges to impaired waters.
With respect to the second assertion, EPA agrees that today's rule
limits the discretion of Great Lakes States to use a TMDL as a vehicle
for establishing mixing zones for BCCs in the Great Lakes System. EPA
believes that this restriction is reasonable because of the documented
environmental and health effects caused by BCCs in the Great Lakes
System. EPA notes, however, that Great Lakes States are not absolutely
foreclosed from authorizing a mixing zone for BCCs in the context of a
TMDL. For existing dischargers, today's rule provides for a 10-year
phase-out period that allows dischargers sufficient time to develop and
implement control strategies to achieve WQBELs based on meeting water
quality criteria end-of-pipe. The rule also provides for exceptions to
the mixing zone prohibition for existing discharges of BCCs. In
addition to the water conservation exception, the rule authorizes an
exception to account for technical and economic circumstances. This
exception could be employed, at the discretion of the State, beyond the
10-year period (perhaps implemented through a TMDL) if the State
determines that more aggressive controls aimed at achieving criteria at
the end of the pipe would not be cost-effective or economically or
technically feasible for the existing BCC discharge in question.
Finally, in response to the third assertion, regarding the
availability of mixing zones when the impact is not biologically
significant, EPA is particularly concerned with how commenters are
defining ``not biologically significant.'' EPA does not consider mixing
zones an entitlement and does not agree that it is reasonable to not
seek reduction of mass loadings of BCCs to areas of the Great Lakes
System that no longer are considered ``biologically significant.'' In
many cases, these areas have been biologically impacted because of the
discharge of these pollutants. That is no reason that they should
remain aquatic waste dumps especially when improved water quality is
feasible. Further, one of the basic tenets underlying the mixing zone
prohibition is that the adverse impacts of BCC discharges can almost
never be limited to areas that are determined to be biologically or
otherwise insignificant. If the receiving water is connected to another
waterbody, that other waterbody would almost certainly be affected
adversely by BCC discharges. States, nevertheless, have the flexibility
to allow a mixing zone under certain exceptions, as noted above.
G. EPA's Fulfillment of the Court Remand
In 1997, the U.S. Court of Appeals for the District of Columbia
Circuit remanded the provisions of the Guidance to phase out and
eliminate mixing zones for BCCs. The Court found that ``[a]lthough the
EPA appears to have shown that eliminating mixing zones is not without
some environmental benefit, the agency simply failed to address whether
the measure is cost-justified. We remand the matter in order to afford
the EPA an opportunity to do just that,'' American Iron & Steel
Institute (AISI) v. EPA, 115 F.3d 979 (D.C. Cir. 1997). This finding
resulted because the Agency had estimated the total cost of eliminating
BCC mixing zones at $200,000 yet did not explain a comment estimating
at approximately $300,000 the cost to one town of removing the BCC
mercury from its sewage discharge. Commenters on the proposal for this
rulemaking asserted that EPA's revised cost estimates had been
underestimated and that EPA had not yet satisfied this order.
EPA's 1995 sensitivity analysis on the BCC mixing zone provisions
of the Guidance produced the $200,000 estimate because State derived
permit limits (based on State water quality standards and mixing zone
requirements) and Guidance-based permit limits (derived without a
mixing zone) were both below analytical method detection levels. This
provided EPA with little information concerning the effectiveness of
possible pollution control strategies that the Guidance might impose
over those that would be required to achieve current State (i.e., pre-
Guidance) permit limits. EPA recognized at the time that its mixing
zone sensitivity analysis did not produce a justifiable cost estimate
and supplemented it with a second analysis that evaluated the possible
cost impacts of reducing potential hidden loadings of BCCs as future
analytical detection methods improve. This analysis showed that if
hidden loadings exist and analytical method detection levels improve,
significant costs impacts from reducing BCCs could occur. However, this
analysis did not evaluate the impact of the BCC mixing zone prohibition
alone.
As such, EPA has reevaluted the comment from the City of Owosso on
the proposed Guidance in which they asserted that it would cost
$300,000 to remove mercury from their sewage discharge. EPA notes that
the $300,000 estimate presented by the City of Owosso is not comparable
to the cost that was estimated in 1995 for the
[[Page 67646]]
elimination of mixing zones for BCCs ($200,000) nor is it comparable to
the costs estimated for today's rule. This is because the City's cost
is the total cost estimated to be necessary to comply with all of the
requirements contained in the 1995 Guidance (as proposed). That is, the
City did not distinguish between the original BCC mixing zone provision
and the rest of the Guidance. The $300,000 estimate does not represent
the incremental cost of eliminating mixing zones for BCCs. Nor did the
City provide in its comment any information regarding the State's
mercury water quality standard for the receiving water (Michigan's
mercury standard that it has been using for over 15 years to protect
human health and wildlife is as stringent as the mercury criteria
promulgated in the 1995 Guidance, but less stringent than the criteria
in the proposed Guidance), or the dilution and ambient background data
that is used by the State permitting authority to evaluate reasonable
potential and calculate permit limits for this facility when mixing
zones are allowed. Nonetheless, the City's cost estimate of $300,000 is
within the average cost range per municipal facility that EPA
calculated for its economic analysis of the entire 1995 Guidance (from
$75,185 to $822,251 under the low and high scenarios, respectively).
In addition, the City did not indicate in its comment if it had
previously conducted any pollution prevention or minimization efforts
among its users. Although the commenter describes the industrial
contribution to its headworks as ``light,'' this is not a sufficient
argument to disregard, without further assessment, the true impact of
the existing industrial discharges and the applicability of pollution
prevention to control them. Most importantly, the City did not indicate
whether or not it had conducted pollution prevention assessments at any
medical and dental offices that it serves. Medical and dental offices
have been found, in many cases, to significantly contribute to the
mercury levels in the influents to POTWs but have controllable sources
of mercury that are readily amenable to cost-effective pollution
prevention techniques.
Nonetheless, as discussed above, EPA has revised its economic
sensitivity analysis of today's BCC mixing zone provision in response
to the Court remand. EPA's estimated cost range for the 1995 Guidance,
which included the 1995 provision to prohibit mixing zones for BCCs,
was $60 million to $380 million per year. EPA estimates, based on its
revised analysis, that the portion of that cost range attributable to
today's rule to prohibit mixing zones for BCCs is between $12 million
and $35 million per year (not $200,000 as was indicated in 1995).
Not only does EPA believe that this revised estimate is reasonable,
it believes that the upper estimate ($35 million annually) may be
overstated. This is because the upper estimate is based on pre-1995
effluent data. When EPA supplemented these data for today's rule using
high-resolution and super clean analytical techniques for detecting
BCCs in POTW effluents, it obtained the $12 million per year estimate.
This lower estimate is due to the fact that concentrations in BCCs in
POTW effluents were found to be substantially lower than expected.
Complementing the Agency's opinion in this regard is DRI/McGraw-
Hill's independent review of the analyses of costs for the 1995
Guidance from which the costs for the proposed rule were derived. This
review found EPA to be ``conservative in the sense that, on the whole,
higher costs were adopted in cases where assumptions were required due
to incomplete data'' (DRI/McGraw-Hill, 1995). Thus, EPA expects that
its cost estimates overstate, rather than underestimate, the costs
associated with the Guidance and, by extension, today's rule.
For these reasons and other reasons set forth in the rulemaking
record, EPA believes that its revised economic analysis provides a
substantiated estimate of the potential incremental costs of the rule.
EPA also believes that today's rule is ``cost-justified.'' That is, EPA
believes that the estimated costs are reasonable in view of the
benefits derived from minimizing the adverse effects of pollutants such
as mercury in the Great Lakes System as a result of this rule. Today's
rule also complies with the test articulated in the GLWQA, which called
for the reduction of BCC mixing zones to the maximum extent possible.
EPA estimated that today's rule will result in a reduction of between
225,000 and 668,000 toxic-weighted pounds (or between 876 and 81,718
unweighted pounds) of pollutants from the Great Lakes System each year.
This includes loadings of chlordane, DDT, dieldrin,
hexachlorocyclohexane, alpha-hexachlorocyclohexane, beta-
hexachlorocyclohexane, hexachlorocyclohexane, lindane, mercury, PCBs,
pentachlorobenzene, 1,2,4,5-tetrachlorobenzene, 2,3,7,8-TCDD, and
toxaphene. As described previously, this will reduce the accumulation
of BCCs in depositional areas of the Great Lakes, reducing the
probability for bioaccumulation in the food chain and adverse effects
on fish, wildlife, and humans. EPA believes that these avoided effects
justify the costs even when the cost to remove a pound of a specific
pollutant may be relatively high.
In addition, EPA has codified exceptions to the mixing zone
prohibition to ensure that the BCC reductions achieved under the rule
are both technically feasible and cost-effective. Procedure 3.C.6.a.ii
states that dischargers must reduce the loadings of BCCs to ``the
maximum extent possible such than any additional controls or pollution
prevention measures to reduce or ultimately eliminate the BCC would
result in unreasonable economic effects on the discharger or the
affected community because the controls or measures are not feasible or
cost-effective.'' As noted above in Section III, EPA modified this
provision from the 1995 Guidance to clarify the importance of
implementing only those control strategies determined to be cost-
effective. For example, if the State determined that the discharger or
affected community would face unreasonable economic effects as a result
of implementing the rule, it could grant the exception.
In relation to this topic, some commenters alleged that the cost
justification required by the Court's remand necessitated a
justification of benefits. However, as several industry commenters have
observed in arguing that EPA's benefits analysis is irrelevant, the
AISI Court already has held that EPA adequately explained the
environmental benefits of its BCC mixing zone prohibition. Moreover,
EPA may have understated the resulting benefits, because many benefits
categories are not amenable to quantification (e.g., estimating the
number of noncancer human health cases avoided from exposure to fish
contaminated with mercury and monetizing those benefits) and can only
be discussed in qualitative terms. In addition, EPA's benefits
estimates do not account for the impact of pollution prevention
strategies with respect to the environment as a whole; as a result of
today's rule, not only will fewer BCCs be discharged into the Great
Lakes System, but EPA expects that overall release of BCCs to the
environment will be reduced as well, so that these pollutants are not
simply transferred to the air or soil.
V. Special Provision for Certain New or Expanded Discharges of BCCs
from Municipalities
In proposing today's rule, EPA requested comments on excluding from
[[Page 67647]]
the definition of ``new discharge'' any new or expanded discharges of
BCCs from POTWs when such discharges are necessary to prevent a public
health threat to the community. EPA did not receive any comments
directed at this exclusion. The Agency is promulgating this new
exclusion because it believes that it is a reasonable, common sense
policy that balances competing health risks. As such, new or expanded
discharges to which this exclusion applies will be treated as existing
discharges of BCCs for purposes of today's rule. See procedure 3.C.2
(2).
VI. Economic Analysis
As described above in Section IV, EPA revised its analysis of the
potential costs associated with eliminating and, for existing
discharges, phasing out mixing zones for BCCs from the analysis that
accompanied the Guidance in 1995. EPA's estimated cost range for the
1995 Guidance, which included the 1995 provision to prohibit mixing
zones for BCCs, was $60 million to $380 million per year. EPA
estimates, based on its revised analysis, that the portion of that cost
range attributable to today's rule ranges from $12 million to $35
million per year. This estimate, and EPA's methodology, are presented
in the proposal for today's rulemaking (64 FR 53632, October 4, 1999).
VII. Administrative Requirements
A. Regulatory Planning and Review (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, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and
therefore is not subject to OMB review.
B. Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act, generally requires an
agency to prepare a regulatory flexibility analysis for 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. 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 based on
Small Business Administration 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.
EPA prepared a screening analysis to evaluate the financial impact
on small entity dischargers that would be subject to the requirements
of the rule (i.e., NPDES permit holders that may discharge BCCs). EPA
identified 2,329 of these small entities and estimated that more than
96% of them would not be significantly affected. EPA determined that
potential impacts represent less than 1% of estimated revenues for
2,290 small entity dischargers under the low cost scenario and 2,244
under the high cost scenario. For small entities that may be affected
more, EPA estimates the impact on small municipal dischargers to range
from 3% to 5% under the low cost scenario for seven facilities, and
from 3% to 14% under the high cost scenario for 43 facilities, with a
midpoint of 5%. EPA determined that potential impacts on nonmunicipal
dischargers represent less than 1% of estimated revenues.
EPA believes that its screening analysis is conservative (erring on
the side of higher costs and greater impacts on small entities than
would normally be expected) because Great Lakes States and Tribes have
flexibility to authorize mixing zones for small entities under certain
technical and economic circumstances and EPA's screening analysis did
not take these circumstances into consideration. EPA further believes
that as States and Tribes exercise this flexibility for small municipal
dischargers that may be affected by this rule the cost impact realized
would be near the low end of the range. The screening analysis results
were presented in more detail in the proposal for today's final
rulemaking (64 FR 53632, October 4, 1999) and the analytical method is
described in a document entitled RFA/SBREFA Screening Analysis for the
Proposal to Amend the Final Water Quality Guidance for the Great Lakes
System to Prohibit Mixing Zones for Bioaccumulative Chemicals of
Concern (August 1999).
EPA's analysis was based on the projected impact of the rule on
existing small entities; however, the rule may also affect small
entities that do not yet exist or that do not discharge BCCs at this
time but may choose to do so in the future. EPA does not expect that
new small entities discharging to the Great Lakes will experience
significant economic impacts because, in EPA's view, it is highly
unlikely that any new discharger would discharge BCCs in quantities to
be affected by the proposed mixing zone prohibition. First, most BCCs
are already banned from use and/or production or are severely
restricted in use. Therefore, EPA does not expect them to be present in
a new discharger's effluent above criteria levels. Second, for the few
remaining BCCs that may be contaminating effluent as a result of
household products or products and chemicals used in production,
municipalities and commercial and industrial users of those products
should be able to use substitutes for these products, rely on cleaner
technologies that do not require their use or that do not produce BCCs
as a by-product, or employ source controls to reduce releases of BCCs
to acceptable levels. These pollution prevention alternatives often are
significantly more cost-effective than the end-of-pipe treatment
technologies that could be used in their place.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
rulemaking amends the 1995 Water Quality Guidance for the Great Lakes
System to establish requirements that apply in the first instance to
Great Lakes States and Tribes. Today's rule restricts the current
discretion of States and Tribes to allow mixing zones when establishing
water quality-based effluent limitations for discharges of BCCs to the
[[Page 67648]]
Great Lakes System. Great Lakes States and Tribes (or EPA, if a State
or Tribe fails to do so) must adopt requirements to ensure that all
discharges of BCCs to the Great Lakes System receive limits no greater
than the water quality criteria for those BCCs. In the case of existing
discharges of BCCs, Great Lakes States and Tribes need not require
attainment of such limitations until November 15, 2010. Great Lakes
States and Tribes also retain some discretion after that date to
authorize mixing zones for existing discharges of BCCs in specified
circumstances.
The RFA only requires analysis of the economic impacts of a rule on
the small entities that are subject to the requirements of a rule.
United Distribution Cos. v. FERC, 88 F.3d 1105 at 1170 (D.C. Cir.
1996), quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C.
Cir. 1985). Today's rule applies to States and Tribes in the Great
Lakes System when issuing NPDES permits. It establishes requirements
that Great Lakes States and Tribes must adopt and apply to all new and
existing discharges of BCCs in the Great Lakes System, including
discharges from small entities. The universe of dischargers affected by
the rule is certain and Great Lakes States and Tribes have no
discretion in implementing the rule with respect to new BCC discharges
and only limited authority to modify the requirements with respect to
existing BCC discharges. In this sense, the rule imposes requirements
on new and existing dischargers in the Great Lakes System.
The requirements in this rulemaking do not become binding
requirements on direct dischargers until they are used to derive
effluent discharge limitations as conditions in an NPDES permit issued
to the discharger. However, effluent limitations based on today's
regulations must be included by NPDES permitting authorities as permit
conditions when the permitting authority issues or reissues permits to
direct dischargers discharging BCCs to the Great Lakes System. Based on
this consideration, EPA has concluded that small entities will be
subject to the regulation for purposes of the RFA, and EPA has
accordingly evaluated the impact of the rule on small entities. Based
on its assessment, the Agency concludes that this rulemaking will not
have a significant economic impact on a substantial number of small
entities for the reasons explained above.
Although this final rule will not have a significant economic
impact on a substantial number of small entities, EPA nonetheless has
tried to reduce the impact of today's rule on small entities by
authorizing an exception, granted solely at the discretion of the State
or Tribe on a case-by-case basis, under certain circumstances. EPA
believes that small entity dischargers will have an easier time meeting
an economic threshold that would qualify them for the exception. Prior
to promulgation of the final 1995 Water Quality Guidance, which
contained the BCC mixing zone prohibition, EPA received in excess of
23,000 pages of information and data from over 6,000 respondents on its
April 16, 1993, proposal. To stay abreast of public expectations for
the final Guidance, EPA continued to meet with State, Local, and Tribal
government officials, financial officials and co-regulators, the
regulated community and environmental interests to listen and openly
discuss their concerns. During the post-proposal process for the
Guidance, EPA participated in over 40 such meetings with over 1,000
stakeholder representatives including small entities. The comments and
issues raised by the various stakeholders were considered in EPA's
option selection process and regulatory impact analysis for developing
the final Guidance. The open public process resulted in meaningful
changes to the final Guidance. Many of the provisions outlined in the
proposal were revised for the final Guidance to increase flexibility
for State, local, and Tribal implementation, and to reduce the impact
of the Guidance on large and small entities. Today's final rule builds
on that process.
C. Paperwork Reduction Act
An agency may not conduct or sponsor and a person is not required
to respond to a collection of information, unless it displays a
currently valid OMB control number under the Paperwork Reduction Act,
44 U.S.C. 3501 et seq. The OMB control number for EPA's regulations are
listed in 40 CFR part 9 and 48 CFR Chapter 15. Under this rule, the
Great Lakes States and Tribes must adopt and submit to EPA provisions
that are as protective as this amendment. See 40 CFR 132.1 and
132.5(a). EPA received approval from OMB for that information
collection as part of the 1995 rulemaking. OMB renewed its approval in
September 30, 1998. The OMB control number is 2040-0180 and is listed
in 40 CFR part 9. EPA will renew this information collection prior to
the date by which Great Lakes States and Tribes must make submissions
consistent with today's rule.
D. 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 EPA promulgates a 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 to
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 rule an explanation
why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may
significantly or uniquely affect small governments, including Tribal
governments, it must have developed under section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of the
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 amends part 132 to prohibit mixing zones
for BCCs in the Great Lakes System. EPA has 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. The total annual
impact of this rule on State, local, and Tribal governments and the
private sector is not expected to exceed $12 to $35 million. Thus,
today's rule to amend part 132 to prohibit mixing zones for BCCs in the
Great Lakes System is not subject to the requirements of sections 202
and 205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As described above,
[[Page 67649]]
EPA does not expect that small governments, including Tribal
governments with responsibility for implementing this rule, and small
governments operating POTWs discharging to the Great Lakes, will
experience significant economic impacts because most BCCs are already
banned from use or are severely restricted in use. In those rare
instances where the few remaining BCCs (i.e., BCCs that are not already
banned or severely restricted) are found contaminating effluent to
unacceptable levels as a result of household products or products and
chemicals used in production, municipalities and commercial and
industrial users of those products should be able to use substitutes
for these products, rely on cleaner technologies that do not require
their use or that do not produce BCCs as a by-product, or employ source
controls to reduce releases of BCCs to acceptable levels. In addition,
for existing discharges, there is some flexibility and discretion in
how the rule is to be implemented by States and Tribes within the NPDES
permit program. Thus, today's rule is not subject to the requirements
of section 203 of UMRA.
E. Executive Order 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.''
This final 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. Today's rule simply requires the
Great Lakes States to add one discrete provision to the regulations and
policies they were already required to adopt pursuant to the 1995
Guidance. EPA's estimated cost range for the 1995 Guidance, which
included the 1995 provision to prohibit mixing zones for BCCs, was $60
million to $380 million per year. EPA estimates that only a small
portion of that cost range, $12 million to $35 million per year, is
attributable to today's rule. Similarly, this rule will not have a
substantial direct effect upon the distribution of power and
responsibilities among the various levels of government because the
States retain primary responsibility for administering their NPDES
permit programs, through which this rule is implemented. The rulemaking
authorizes EPA to promulgate these mixing zone provisions only if an
authorized State has failed to act. Accordingly, these provisions will
not have a substantial direct effect on States or on intergovernmental
relationships or responsibilities. Thus, the requirements of section 6
of the Executive Order do not apply to this final rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA extensively involved State, local, and Tribal government
representatives in the development of this amendment, notably during
the process of developing the 1995 Guidance, which contained the
original version of today's rule. The process used to develop the
Guidance marked the first time that EPA had developed a major
rulemaking effort in the water quality standards program through a
regional public forum. The public process, which lasted over a seven-
year period and involved Great Lakes States, EPA, and other Federal
agencies in open dialogue with citizens, Tribal and local governments,
and industry in the Great Lakes Basin, is described further in the
preamble to the Guidance. See 60 FR 15383 (March 23, 1995). As
described above, today's action by EPA reinstates a provision nearly
identical to the provision in the 1995 Guidance that was vacated by the
Court in AISI. It thus reflects the State, local, and Tribal government
input EPA received during the 1995 Guidance rulemaking.
F. 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 unless 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 officials 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 or impose substantial direct
compliance costs on them. See section VII. D above for more discussion.
Therefore, the requirements of section 3(b) of Executive Order 13084 do
not apply to this rule. Nonetheless, EPA has extensively involved Great
Lakes State, local, and Tribal governments in the development of this
amendment, notably during the process of developing the 1995 Guidance,
which contained the original version of this rule. Today's action by
EPA proposes to reinstate a provision nearly identical to the provision
in the 1995 Guidance that was vacated by the Court in AISI. It thus
reflects the State, local, and Tribal government input EPA received
during the 1995 Guidance rulemaking.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to the Executive Order because it is not
economically significant as defined in Executive Order 12866. As noted
earlier, however, children may be at a greater risk to BCCs than
adults. If they are at greater risk, then they will benefit the most
from this rule to prohibit mixing zones for BCCs in the Great Lakes
System.
[[Page 67650]]
H. Endangered Species Act
Section 7 of the Endangered Species Act (ESA) requires Federal
agencies, in consultation with the U.S. Fish and Wildlife Service (FWS)
and National Marine Fisheries Service (NMFS), to ensure their actions
are not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of habitat
of such species that have been designated as ``critical.'' Consultation
is designed to assist Federal agencies in complying with the
requirements of section 7 by supplying a process within which FWS and
NMFS provide such agencies with advice on whether an action complies
with the substantive requirements of ESA.
In accordance with these requirements, EPA completed consultation
with the FWS on the 1995 Guidance, and the FWS issued a biological
opinion concluding that the Guidance was not likely to jeopardize the
continued existence of listed species or result in the destruction or
adverse modification of species' critical habitat. As explained above,
today's rule essentially reinstates, with some clarification, the BCC
mixing zone provisions of the 1995 Guidance. Since the substance of
today's rule has already been the subject of section 7 consultation,
the effects of today's rule have been addressed by the Services' prior
biological opinion.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, Section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
the Office of Management and Budget, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
Today's rule does not involve technical standards; therefore, EPA
did not consider using any voluntary consensus standards. EPA received
no comments on this aspect of the rulemaking and no commenter
identified any potentially applicable voluntary consensus standards for
use in this regulation.
J. Submission to Congress and the General Accounting Office
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a major rule as defined by 5 U.S.C. 804(2).
This rule will be effective December 13, 2000.
VIII. Supporting Documents
All documents that are referenced in this preamble are available
for inspection and photocopying in the docket of the 1995 Guidance and
the docket of this rulemaking at the address listed at the beginning of
this preamble. A reasonable fee will be charged for photocopies.
EPA is also making a number of documents available in electronic
format at no incremental cost to users of the Internet (http://www.epa.gov/ost/GLI). These documents include the contents of this
Federal Register document and several other supporting documents and
materials.
IX. References
Amyot, M., J.D. Lalonde, L. Poissant, and D.R.S. Lean. 1999.
Mercury in Lake Ontario and the St. Lawrence River. Great Lakes
Research Review 4(2): 1-4.
DRI/McGraw-Hill. 1995. Great Lakes Water Quality Initiative,
Cost Effectiveness Update. June.
Elliot, J.E., R.J. Norstrom, A. Lorenzen, L.E. Hart, H.
Philibert, S.W. Kennedy, J.J. Stegeman, G.D. Bllward, and K.M.
Cheng. 1996. Biological effects of polychlorinated dibenzo-p-
dioxins, dibenzofurans, and biphenyls in bald eagle (Haliaeetus
leucocephalus) chicks. Environmental Toxicology and Chemistry 15:
782-93.
Mason, R.T., and K.A. Sullivan. 1997. Mercury in Lake Michigan.
Environmental Science and Technology 31: 942-47.
Sweeney, B.W., D.H. Funk, and L.J. Standley. 1993. Use of the
stream mayfly Cloeon triangulifer as a bioassay organism: life
history response and body burden following exposure to technical
chlordane. Environmental Toxicology and Chemistry 12: 115-25.
U.S. EPA. 1995. Regulatory Impact Analysis for the Final Great
Lakes Water Quality Guidance. U.S. Environmental Protection Agency,
Washington, D.C.
U.S. EPA. 1997. Guidance for Assessing Chemical Data for Use in
Fish Advisories. Volume 2. Risk Assessment and Fish Consumption
Limits. EPA 823-B-97-009. U.S. Environmental Protection Agency,
Washington, D.C.
U.S. EPA. 1999. Overview of Pollution Prevention Approaches at
POTWs. Draft. Office of Science and Technology. U.S. Environmental
Protection Agency, Washington, D.C.
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: November 2, 2000.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, Title 40, chapter I, part
132 of the Code of Federal Regulations is amended 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 132.5 is amended by revising paragraphs (a) and (c) to
read as follows:
Sec. 132.5 Procedures for adoption and EPA review.
(a) Except as provided in paragraph (c) of this section, the Great
Lakes States and Tribes shall adopt and submit for EPA review and
approval the criteria, methodologies, policies, and procedures
developed pursuant to this part no later than September 23, 1996. With
respect to procedure 3.C of appendix F of this part, each Great Lakes
State and Tribe shall make its submission to EPA no later than May 13,
2002.
* * * * *
(c) The Regional Administrator may extend the deadline for the
submission required in paragraph (a) of this section if the Regional
Administrator believes that the submission will be consistent with the
requirements of this part and can be reviewed and approved pursuant to
this section no later than March 23, 1997, or, for procedure 3.C of
appendix F of this part, no later than November 13, 2002.
* * * * *
[[Page 67651]]
3. Appendix F of part 132 is amended by adding procedure 3.C to
read as follows:
Appendix F of Part 132--Great Lakes Water Quality Initiative
Implementation Procedures
* * * * *
Procedure 3: * * *
C. Mixing Zones for Bioaccumulative Chemicals of Concern (BCCs).
The following requirements shall be applied in establishing TMDLs,
WLAs in the absence of TMDLs, and preliminary WLAs for purposes of
determining the need for WQBELs under procedure 5 of appendix F, for
BCCs:
1. There shall be no mixing zones available for new discharges
of BCCs to the Great Lakes System. WLAs established through TMDLs,
WLAs in the absence of TMDLs, and preliminary WLAs for purposes of
determining the need for WQBELs for new discharges of BCCs shall be
set no higher than the most stringent applicable water quality
criteria or values for the BCCs in question. This prohibition takes
effect for a Great Lakes State or Tribe on the date EPA approves the
State's or Tribe's submission of such prohibition or publishes a
notice under 40 CFR 132.5(f) identifying that prohibition as
applying to discharges within the State or Federal Tribal
reservation.
2. For purposes of section C of procedure 3 of appendix F, new
discharges are defined as: (1) A ``discharge of pollutants'' (as
defined in 40 CFR 122.2) to the Great Lakes System from a building,
structure, facility, or installation, the construction of which
commences after the date the prohibition in section C.1 takes effect
in that State or Tribe; (2) a new discharge from an existing Great
Lakes discharger that commences after the date the prohibition in
section C.1 takes effect in that State or Tribe; or (3) an expanded
discharge from an existing Great Lakes discharger that commences
after the date the prohibition in section C.1 takes effect in that
State or Tribe, except for those expanded discharges resulting from
changes in loadings of any BCC within the existing capacity and
processes (e.g., normal operational variability, changes in intake
water pollutants, increasing the production hours of the facility or
adding additional shifts, or increasing the rate of production), and
that are covered by the existing applicable control document. Not
included within the definition of ``new discharge'' are new or
expanded discharges of BCCs from a publicly owned treatment works
(POTW as defined at 40 CFR 122.2) when such discharges are necessary
to prevent a public health threat to the community (e.g., a
situation where a community with failing septic systems is connected
to a POTW to avert a potential public health threat from these
failing systems). These and all other discharges of BCCs are defined
as existing discharges.
3. Up until November 15, 2010, mixing zones for BCCs may be
allowed for existing discharges to the Great Lakes System pursuant
to the procedures specified in sections D and E of this procedure.
4. Except as provided in sections C.5 and C.6 of this procedure,
permits issued on or after this provision takes effect in a Great
Lakes State or Tribe shall not authorize mixing zones for existing
discharges of BCCs to the Great Lakes System after November 15,
2010. After November 15, 2010, WLAs established through TMDLs, WLAs
established in the absence of TMDLs, and preliminary WLAs for
purposes of determining the need for WQBELs under procedure 5 of
appendix F for existing discharges of BCCs to the Great Lakes System
shall be equal to the most stringent applicable water quality
criteria or values for the BCCs in question.
5. Exception for Water Conservation. Great Lakes States and
Tribes may grant mixing zones for any existing discharge of BCCs to
the Great Lakes System beyond the date specified in section C.4 of
this procedure where it can be demonstrated, on a case-by-case
basis, that failure to grant a mixing zone would preclude water
conservation measures that would lead to overall load reductions in
BCCs, even though higher concentrations of BCCs occur in the
effluent. Such mixing zones must also be consistent with sections D
and E of this procedure.
6. Exception for Technical and Economic Considerations. Great
Lakes States and Tribes may grant mixing zones beyond the date
specified in section C.4 of this procedure for any existing
discharge of a BCC to the Great Lakes System upon the request of a
discharger, subject to sections C.6.a through C.6.c below.
a. The State or Tribe must determine that:
i. The discharger is in compliance with and will continue to
implement, for the BCC in question, all applicable requirements of
Clean Water Act sections 118, 301, 302, 303, 304, 306, 307, 401, and
402, including existing National Pollutant Discharge Elimination
System (NPDES) water-quality based effluent limitations; and
ii. The discharger has reduced and will continue to reduce the
loading of the BCC for which a mixing zone is requested to the
maximum extent possible, such that any additional controls or
pollution prevention measures to reduce or ultimately eliminate the
BCC discharge would result in unreasonable economic effects on the
discharger or the affected community because the controls or
measures are not feasible or cost-effective.
b. Any mixing zone established pursuant to this section shall:
i. Not result in any less stringent limitations than those
existing prior to November 13, 2000;
ii. Be no larger than necessary to account for the technical
constraints and economic effects identified pursuant to paragraph
C.6.a.ii above;
iii. Meet all applicable acute and chronic aquatic life,
wildlife and human health criteria and values within and at the edge
of the mixing zone or be consistent with the applicable TMDL or
assessment and remediation plan authorized under procedure 3.A.
iv. Be accompanied, as appropriate, by a permit condition
requiring the discharger to implement an ambient monitoring plan to
ensure compliance with water quality standards and consistency with
any applicable TMDL or such other strategy consistent with Section A
of this procedure, including the evaluation of alternative means for
reducing the BCC from other sources in the watershed; and
v. Be limited to one permit term unless the permitting authority
makes a new determination in accordance with this section for each
successive permit application in which a mixing zone for the BCC is
sought.
c. For each draft NPDES permit that would allow a mixing zone
for one or more BCCs after November 15, 2010, the fact sheet or
statement of basis for the draft permit that is required to be made
available through public notice under 40 CFR 124.6(e) shall:
i. Specify the mixing provisions used in calculating the permit
limits; and
ii. Identify each BCC for which a mixing zone is proposed.
7. Any mixing zone authorized under sections C.3, C.5 or C.6
must be consistent with sections D and E of this procedure, as
applicable.
* * * * *
[FR Doc. 00-28709 Filed 11-9-00; 8:45 am]
BILLING CODE 6560-50-P