[Federal Register Volume 69, Number 16 (Monday, January 26, 2004)]
[Rules and Regulations]
[Pages 3514-3525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1545]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-7613-2]
Water Quality Standards for Puerto Rico
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is promulgating
designated uses and associated water quality criteria for six
waterbodies and an area of coastal waters known as the coastal ring in
the Commonwealth of Puerto Rico. These waterbodies are: Mayaguez Bay
(from Punta Guanajibo to Punta Algarrobo); Yabucoa Port (from Punta
Icacos to Punta Yeguas); Guayanilla and Tallaboa Bays (from Cayo
Parguera to Punta Verraco); Ponce Port (from Punta Carenero to Punta
Cuchara) and San Juan Port (from the mouth of R[iacute]o Bayam[oacute]n
to Punta El Morro), as well as the area of coastal waters known as the
coastal ring, defined as all coastal waters from 500 meters seaward to
a maximum of three miles seaward. Through this promulgation, the
Federally designated use of primary contact recreation and the
associated water quality criteria are added to the Commonwealth's
designated uses for the previously referenced embayments and the
coastal ring (referred to collectively in this preamble as the
``Subject Waterbodies'').
DATES: This regulation is effective March 26, 2004.
ADDRESSES: The public record for this rulemaking has been established,
is located at EPA Region 2, 290 Broadway, New York, New York 10007, and
Carribean Environmental Protection Division, U.S. EPA Region 2, 1492
Ponce De Leon Avenue, Suite 417, Santurce, Puerto Rico 00907, and can
be viewed between 9 a.m. and 3:30 p.m. at both locations.
FOR FURTHER INFORMATION CONTACT: For information concerning today's
final rule, contact Wayne Jackson, U.S. EPA Region 2, Division of
Environmental Planning and Protection, 290 Broadway, New York, New York
10007 (telephone: 212-637-3807 or e-mail: [email protected]) or
Claudia Fabiano, U.S. EPA Headquarters, Office of Science and
Technology, 1200 Pennsylvania Avenue NW., Mail Code 4305T, Washington,
DC 20460 (telephone: 202-566-0446 or e-mail: [email protected]).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Who Is Potentially Affected by This Rule?
B. How Can I Get Copies of This Document and Other Related
Information?
1. Docket
2. Electronic Access
II. Background
A. Statutory and Regulatory Background
B. Current Puerto Rico Water Quality Standards
C. Factual Background
1. Summary of Commonwealth and EPA Administrative Actions
2. Summary of Legal Actions
III. Use Designations and Criteria That EPA Is Promulgating Today
A. Use Designations and Criteria That EPA Proposed in October
2003
B. Comments Received in Response to EPA's October 2003 Proposal
IV. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Site-Specific Criteria
C. Variances
V. Economic Analysis
A. Identifying Affected Facilities
B. Method for Estimating Potential Compliance Costs
C. Results
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Congressional Review Act
I. General Information
A. Who Is Potentially Affected by This Rule?
Citizens concerned with water quality in Puerto Rico may be
interested in this rulemaking. Facilities discharging pollutants to
certain waters of the United States in Puerto Rico could be indirectly
affected by this rulemaking since water quality standards are used in
determining water quality-based National Pollutant Discharge
[[Page 3515]]
Elimination System (NPDES) permit limits. Categories and entities that
may indirectly be affected include:
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Examples of potentially
Category regulated entities
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Industry............................... Industries discharging
pollutants to the waters
identified in Sec. 131.40.
Municipalities......................... Publicly-owned treatment works
discharging pollutants to the
waters identified in Sec.
131.40.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists the types of entities that EPA is now aware
could potentially be affected by this action. Other types of entities
not listed in the table could also be affected. To determine whether
your facility may be affected by this action, you should carefully
examine the waterbodies identified in Sec. 131.40 of today's rule. If
you have questions regarding the applicability of this action to a
particular entity, consult one of the persons listed in the preceding
FOR FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2003-0072. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing at
the Water Quality Standards for Puerto Rico docket, located at both the
Division of Environmental Planning and Protection, U.S. EPA Region 2,
290 Broadway, New York, New York 10007, and the Carribean Environmental
Protection Division, U.S. EPA Region 2, 1492 Ponce De Leon Avenue,
Suite 417, Santurce, Puerto Rico 00907. These Docket Facilities are
open from 9 a.m. to 3:30 p.m., Monday through Friday, excluding legal
holidays. The Docket telephone numbers are 212-637-3807 and 787-977-
5836, respectively. A reasonable fee will be charged for copies.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the one of the docket facilities identified in
Section I.B. Once in the system, select ``search,'' then key in the
appropriate docket identification number.
II. Background
A. Statutory and Regulatory Background
Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or ``the
Act'') directs States, Territories, and authorized Tribes (hereafter
referred to as ``States''), with oversight by EPA, to adopt water
quality standards to protect the public health and welfare, enhance the
quality of water and serve the purposes of the CWA. Under section 303,
States are required to develop water quality standards for navigable
waters of the United States within the State. Section 303(c) provides
that water quality standards shall include the designated use or uses
to be made of the water and water quality criteria necessary to protect
those uses. The designated uses to be considered by States in
establishing water quality standards are specified in the Act: public
water supplies, propagation of fish and wildlife, recreation,
agricultural uses, industrial uses and navigation. States are required
to review their water quality standards at least once every three years
and, if appropriate, revise or adopt new standards. The results of this
triennial review must be submitted to EPA, and EPA must approve or
disapprove any new or revised standards.
Section 303(c) of the CWA authorizes the EPA Administrator to
promulgate water quality standards to supersede State standards that
have been disapproved or in any case where the Administrator determines
that a new or revised standard is needed to meet the CWA's
requirements. In an August 11, 2003, Opinion and Order from the United
States District Court for the District of Puerto Rico in the case of
CORALations and the American Littoral Society v. United States
Environmental Protection Agency, et al. (No. 02-1266 (JP) (D. Puerto
Rico)), the court ordered EPA to prepare and publish new or revised
water quality standards for those waters which are currently classified
as ``Class SC'' (secondary contact recreation) waters by the
Commonwealth of Puerto Rico. EPA is, therefore, promulgating Federal
water quality standards for these waters in Puerto Rico.
EPA regulations implementing CWA section 303(c) are published at 40
CFR part 131. Under these rules, the minimum elements that must be
included in a State's water quality standards include: use designations
for all waterbodies in the State, water quality criteria sufficient to
protect those use designations, and an antidegradation policy (see 40
CFR 131.6).
Water quality standards establish the ``goals'' for a waterbody
through the establishment of designated uses. Designated uses, in turn,
determine what water quality criteria apply to specific waterbodies.
Section 101(a)(2) of the Act establishes as a national goal ``water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and * * * recreation in and on the water,''
wherever attainable. These national goals are commonly referred to as
the ``fishable/swimmable'' goals of the Act. Section 303(c)(2)(A)
requires water quality standards to ``protect the public health or
welfare, enhance the quality of water, and serve the purposes of this
[Act].'' EPA's regulations at 40 CFR part 131 interpret and implement
these provisions by requiring that water quality standards provide for
fishable/swimmable uses unless those uses have been shown to be
unattainable. The mechanism in EPA's regulations used to overcome this
presumption is a use attainability analysis (UAA).
Under 40 CFR 131.10(j), States are required to conduct a UAA
whenever the State designates or has designated uses that do not
include the uses specified in section 101(a)(2) of the CWA or when the
State wishes to remove a designated use that is specified in section
101(a)(2) of the CWA or adopt subcategories of uses that require less
stringent criteria. Uses are considered by EPA to be attainable, at a
minimum, if the uses can be achieved (1) when effluent limitations
under section 301(b)(1)(A) and (B) and section 306 are imposed on point
source dischargers and (2) when cost effective and reasonable best
management practices are imposed on nonpoint source dischargers. 40 CFR
131.10 lists grounds upon which to base a finding that attaining the
designated use is not
[[Page 3516]]
feasible, as long as the designated use is not an existing use:
(i) Naturally occurring pollutant concentrations prevent the
attainment of the use;
(ii) Natural, ephemeral, intermittent or low flow conditions or
water levels prevent the attainment of the use, unless these conditions
may be compensated for by the discharge of sufficient volume of
effluent discharges without violating State water conservation
requirements to enable uses to be met;
(iii) Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place;
(iv) Dams, diversions or other types of hydrologic modifications
preclude the attainment of the use, and it is not feasible to restore
the waterbody to its original condition or to operate such modification
in a way which would result in the attainment of the use;
(v) Physical conditions related to the natural features of the
waterbody, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like unrelated to water quality, preclude
attainment of aquatic life protection uses; or
(vi) Controls more stringent than those required by sections 301(b)
and 306 of the CWA would result in substantial and widespread economic
and social impact.
A UAA is defined in 40 CFR 131.3(g) as a ``structured scientific
assessment of the factors affecting the attainment of a use which may
include physical, chemical, biological, and economic factors' (see
Sec.Sec. 131.3 and 131.10). In a UAA, the physical, chemical and
biological factors affecting the attainment of a use are evaluated
through a waterbody survey and assessment.
Guidance on waterbody survey and assessment techniques is contained
in the Technical Support Manual, Volumes I-III: Water Body Surveys and
Assessments for Conducting Use Attainability Analyses. Volume I
provides information on waterbodies in general; Volume II contains
information on estuarine systems; and Volume III contains information
on lake systems (Volumes I-II, November 1983; Volume III, November
1984). Additional guidance is provided in the Water Quality Standards
Handbook: Second Edition (EPA-823-B-94-005, August 1994). Guidance on
economic factors affecting the attainment of a use is contained in the
Interim Economic Guidance for Water Quality Standards: Workbook (EPA-
823-B-95-002, March 1995). In developing today's proposal, EPA followed
the same procedures set out for States in 40 CFR part 131 and EPA's
implementing policies, procedures, and guidance.
EPA regulations effectively establish a ``rebuttable presumption''
that fishable/swimmable uses are attainable and, therefore, should
apply to a waterbody unless it is demonstrated that such uses are not
attainable. EPA adopted this approach to help achieve the national goal
articulated by Congress that, ``wherever attainable,'' water quality
provide for the ``protection and propagation of fish, shellfish and
wildlife'' and for ``recreation in and on the water.'' CWA section
101(a). While facilitating achievement of Congress' goals, the
rebuttable presumption approach preserves States' paramount role in
establishing water quality standards in weighing any available evidence
regarding the attainable uses of a particular waterbody. The rebuttable
presumption approach does not restrict the discretion that States have
to determine that fishable/swimmable uses are not, in fact, attainable
in a particular case. Rather, if the water quality goals articulated by
Congress are not to be met in a particular waterbody, the regulations
simply require that such a determination be based upon a credible
``structured scientific assessment'' of use attainability.
EPA's approach in this rulemaking does not undermine the
Commonwealth's primary role in designating uses and setting criteria
for waters in Puerto Rico. If the Commonwealth reclassifies the Subject
Waterbodies to a swimmable designated use or adopts criteria sufficient
to protect a swimmable use, EPA would expect to approve the
Commonwealth's action and initiate a rulemaking to rescind today's
rule. Alternatively, the Commonwealth might complete a sound analysis
of use attainability (taking into account appropriate biological,
chemical and physical factors) and conclude that the swimmable use is
not attainable for these waterbodies. In this case, EPA would expect to
approve the Commonwealth's action (assuming it meets all requirements
of EPA's regulations at 40 CFR part 131) and initiate a rulemaking to
rescind today's rule. EPA encourages the Commonwealth to continue
evaluating the appropriate use designation for these waterbodies.
B. Current Puerto Rico Water Quality Standards
Puerto Rico's water quality standards regulation (PRWQSR) at
Article 2 establishes a classification system containing the designated
uses for waterbodies in the Commonwealth. Puerto Rico has applied these
use designations to all coastal, estuarine, and surface waters of the
Commonwealth.
The current use designation adopted by the Commonwealth for the
Subject Waterbodies is Class SC. Coastal waters designated as Class SC
are ``intended for uses where the human body may come into indirect
contact with the water (such as fishing, boating, etc.) and for use in
propagation and preservation of desirable species, including threatened
or endangered species.'' (PRWQSR, at Article 3.2.3.) The Class SC
designation, however, does not provide protection from pathogens
associated with fecal contamination during direct contact with the
water. Therefore, Class SC does not protect for the swimming use.
EPA's regulations at 40 CFR part 131 require that waters designated
for a use less protective than ``fishable/swimmable'' be supported by a
use attainability analysis. ``Fishing'' and ``propagation and
preservation of desirable species'' are included as a condition of the
best usage for Class SC waters. Therefore, Class SC includes the
``fishable'' use established as a goal in the Clean Water Act; however,
it does not include the ``swimmable'' use. Puerto Rico uses fecal
coliform and enterococci bacteria criteria to protect for the primary
contact recreation use. Class SC includes bacteria criteria sufficient
to protect secondary contact recreation (e.g., boating) but not primary
contact recreation (e.g., swimming). Criteria used for Class SC do not
provide for protection from pathogens associated with fecal
contamination during direct contact with the water and, therefore, do
not protect for the primary contact recreation use.
Section 3.2.3 of the PRWQSR contains the use classifications and
associated use-specific criteria for Class SC waters for dissolved
oxygen, fecal coliforms, pH, color, turbidity, taste and odor producing
substances, sulfates, and surfactants as MBAS (methylene blue active
substances). With the exception of the criteria for fecal coliforms,
which are not fully protective of the primary contact recreation use,
these criteria for Class SC waters have been found to be protective of
CWA section 101(a) uses and have been previously approved by EPA. These
criteria are intended to protect aquatic life and/or general aesthetic
conditions in these waters.
Bacteria is the only parameter that is specifically intended to
protect for primary contact recreation. Water quality criteria for
bacteria are intended to protect bathers from gastrointestinal
[[Page 3517]]
illness in recreational waters and they establish levels of indicator
bacteria that demonstrate the presence of fecal contamination.
Waterbodies should not exceed these levels if they are to protect
bathers in fresh and marine recreational waters. Including primary
contact recreation as a use for Class SC waters and applying the
indicator bacteria criteria described above would result in the Class
SC waters being fully ``swimmable.'' The remainder of the criteria that
Puerto Rico applies to its coastal waters are sufficient to protect
other CWA section 101(a) uses, such as aquatic life and human health
protection from consuming fish based on the level of toxic pollutants
in the water and in the fish tissue.
Section 3.1 of the PRWQSR contains narrative water quality criteria
and numeric criteria for substances in toxic concentrations including
inorganic substances, pesticides, non-pesticide organic substances,
carbon tetrachloride, volatile organic substances, and semi-volatile
organic substances. The criteria in section 3.1 are applicable to all
waters of Puerto Rico, including those waters classified as Class SC.
These criteria are protective of all applicable uses and have been
approved by EPA.
Puerto Rico's Environmental Quality Board (EQB) applies the Class
SC designation for the bay components of the Subject Waterbodies from
the zone subject to the ebb and flow of tides (mean sea level) to 10.3
nautical miles seaward, and from 500m from the shoreline to 10.3
nautical miles seaward for the coastal ring. However it is clear that
State jurisdiction under the CWA is limited to ``navigable waters'' of
the United States, including territorial seas which extend only three
miles seaward. Accordingly, in this rulemaking, the new use designation
for coastal waters is limited to the territorial seas.
Section 303(c)(2)(A) of the CWA provides that States are to adopt
water quality standards for ``navigable waters.'' Under CWA section
303(c)(3) providing for EPA review of State water quality standards, if
EPA approves a State's water quality standards, they become the
standards for the applicable waters of the State. Where the
Administrator proposes and promulgates water quality standards, CWA
section 303(c)(4) provides that the State water quality standards shall
apply to ``navigable waters.''
Section 502(7) of the CWA defines ``navigable waters'' as waters of
the United States, including the ``territorial seas.'' Section 502(8)
defines ``territorial seas'' to mean ``the belt of the seas measured
from the line of ordinary low water along that portion of the coast
which is in direct contact with the open sea and the line marking the
seaward limit of inland waters, and extending seaward a distance of
three miles.'' The ``contiguous zone'' and ``ocean'' are defined
separately [see sections 502(9) and (10)].
The CWA also includes two other definitions (for ``effluent
limitations'' and ``discharge of a pollutant'') that distinguish
navigable waters from the contiguous zone and the ocean. These
definitions also indicate that navigable waters are not meant to
include the contiguous zone and the ocean. EPA's long standing
interpretation of the statute does not include the contiguous zone and
ocean in the definition of navigable waters (see 40 CFR 122.2). The CWA
authorizes each State electing to administer its own NPDES permit
program for discharges into navigable waters within its jurisdiction to
submit its program for EPA review [see section 402(b)]. If EPA approves
the State program, EPA suspends its issuance of permits under section
402(a), but only as to those navigable waters subject to the State
program [see section 402(c)(1)]. While the CWA definition of navigable
waters includes the territorial sea, it does not include the contiguous
zone or the ocean, both of which are defined as regions beyond the
territorial sea. Read together, these provisions plainly indicate that
Congress intended the State NPDES program jurisdiction to be limited to
navigable waters including the territorial sea. States cannot assume
NPDES permitting authority beyond the three-mile limit of the
territorial sea.
Two decisions in the Ninth Circuit Court have addressed these
jurisdictional issues. In Pacific Legal Foundation, et al. v. Costle,
586 F. 2d 657 (9th Cir. 1978) reversed on other grounds, 445 U.S.198,
the Court held that only the Administrator has authority to issue NPDES
permits for waters beyond the territorial seas. The Court also held
that the contiguous zone and the ocean clearly extend beyond the outer
limits of the ``navigable waters'' that mark the extent of the power of
States to administer their own permit programs. The Court noted that ``
* * * had Congress intended the power of the States to extend beyond
the territorial seas, it easily could have so provided.'' Id. at 656.
Further, citing the definition of ``discharge of a pollutant,'' which
distinguishes discharges to navigable waters from discharges to the
contiguous zone or the ocean, the Court concluded that ``it is apparent
that ``ocean'' and ``contiguous zone'' waters are not included within
the scope of ``navigable waters' * * * '' Id.
In Natural Resources Defense Council v. EPA, 863 F.2d 1420, (9th
Cir. 1988), the Court held that ``navigable waters'' include only those
waters landward from the territorial sea. Id. at 1435. In this case,
Florida argued that it had jurisdiction to apply water quality
standards more than three miles from the coast. The State contended
that its maritime boundaries extended three maritime leagues
(approximately 10.3 miles). Florida maintained that EPA must assure
that discharges under EPA's general permit would comply with the
State's water quality standards out to 10.3 miles. The Court disagreed,
finding that the State's jurisdiction is limited to the territorial
seas. The Court noted that it is `` * * * difficult to ignore the
express language of the Clean Water Act's definition of territorial
seas.'' And, further, that `` * * * if there were any doubt that
Congress intended to create a uniform three-mile boundary in the (CWA),
the legislative history * * * indicates Congress consciously defined
the term `territorial seas' to make clear the jurisdiction limits of
this particular legislation and its relationship to other statutes.''
Id. at 1436. For these reasons, EPA is promulgating the new use
designation for coastal waters limited to the territorial seas.
EPA is promulgating primary contact recreation as a specified
designated use for the Subject Waterbodies. In developing today's rule,
EPA evaluated the PRWQSR to determine which bacteria criteria would
protect for the ``swimmable'' use and would, therefore, ensure
achievement of the CWA section 101(a)(2) goals. As a result, EPA is
promulgating the bacteriological criteria associated with Class SB
(primary contact recreation) for fecal coliform and enterococci set out
at Section 3.2.2 of the PRWQSR for the Subject Waterbodies because
these criteria protect primary contact recreation. The water quality
standards EPA is promulgating for these waterbodies will be the basis
for establishing NPDES permit limits by EPA Region 2.
C. Factual Background
1. Summary of Commonwealth and EPA Administrative Actions
In August 1990, the Commonwealth of Puerto Rico adopted revisions
to the PRWQSR. These were sent to EPA on September 21, 1990, with the
caveat from the Chairman of the EQB that the transmittal may not be the
final submittal, since EQB was going to have public hearings on
November 1, 1990. Because of this caveat, and because the requisite
certification from the Commonwealth's Secretary of Justice
[[Page 3518]]
was not submitted with the revisions as required by 40 CFR 131.6(e),
EPA did not act on these revisions immediately.
From 1991 to 1993, EPA Region 2 worked with EQB on a series of
draft revisions to the PRWQSR. These drafts were never adopted by
Puerto Rico. In 1992, EPA included Puerto Rico in the National Toxics
Rule, in large part because EPA did not consider the 1990 revisions to
be officially adopted by Puerto Rico.
The requisite certification from the Commonwealth's Secretary of
Justice was ultimately submitted to EPA on February 25, 2002. Upon
receipt of this certification EPA took final action on all new and
revised provisions of the 1990 PRWQSR on March 28, 2002. These
revisions included 11 separate new or revised provisions. The 1990
revisions to the PRWQSR, however, did not include any changes to the
designation of specific waterbody segments, including upgrades from
Class SC to SB.
On March 28, 2003, EQB submitted additional revisions to the PRWQSR
that EPA approved on June 26, 2003. These revisions included the
reclassification of ten bays/estuaries, previously classified as Class
SC waters, to Class SB (Article 2.1.3). These included:
Aguadilla Bay (from Punta Boquer[oacute]n to
Punta Borinquen);
Arecibo Bay (from Punta Maracayo to Punta
Caracoles);
Fajardo Bay (from Playa Sardinera to Playa de
Fajardo);
Roosevelt Roads (from Punta Cabra de Tierra to
Punta Cascajo);
Port of Naguabo (from Playa de Naguabo to El
Morrillo);
Jobos Bay and Laguna de la Mareas (from Punta
Rodeo to Punta Colchones);
Gu[aacute]nica Bay inland waters north of the
mouth of the river;
Port of Dewey in Culebra; and
Port of Isabel Segunda in Vieques and Puerto
Real in Vieques between Cayo de Tierra and Cayo Real.
While the March 28, 2003, revisions to the PRWQSR did address ten
bays/estuaries previously classified as Class SC waters by
reclassifying them to Class SB, Puerto Rico recognized that it still
needed to address the Subject Waterbodies. In an effort to do so, EQB,
in its State Fiscal Year 2003 CWA Section 604(b) Consolidated Workplan,
committed to develop a plan to outline a schedule for data collection
and analysis and identify the applicable regulatory actions for these
waters. EQB is currently completing this plan.
2. Summary of Legal Actions
On February 20, 2002, a complaint was filed in the U.S. District
Court for the District of Puerto Rico by three environmental groups:
CORALations, American Littoral Society, and the American Canoe
Association. In this action, the plaintiffs alleged, among other
things, that certain actions by EPA personnel had triggered a mandatory
duty under section 303(c) of the CWA for EPA to prepare and propose
regulations setting forth a revised water quality standard for any
coastal waters that remained classified SC. The Court, in its August
11, 2003, Opinion and Order, ordered EPA to prepare and publish new or
revised water quality standards for those coastal waters which are
currently classified as Class SC waters.
III. Use Designations and Criteria for Waters That EPA Is Promulgating
Today
A. Use Designations and Criteria That EPA Proposed in October 2003
EPA evaluated all available data and information to determine
whether the swimmable use is attainable in the Subject Waterbodies.
EPA's analysis was informed by the regulatory provisions at 40 CFR part
131 and technical guidance that EPA provided to States for developing
use attainability analyses. The information that EPA used in its
evaluation of the coastal ring component of the Subject Waterbodies
shows that the swimmable use is attainable in these waters. That
information included all available Quarterly Reports of the 301(h)
Waiver Demonstration Studies for five Regional Wastewater Treatment
Plants that discharge to the waters comprising the coastal ring. The
ambient water quality data collected as part of these quarterly reports
showed that the applicable bacteria criteria to protect primary contact
recreation (fecal coliform and enterococci) were being attained in the
waters of the coastal ring outside of the designated mixing zones. The
quarterly reports also demonstrated that the bacteria criteria to
protect primary contact recreation are being attained at the edge of
the mixing zone (based on the measured end-of-pipe concentrations of
bacteria at each Regional Wastewater Treatment Plant and the critical
initial dilution that occurs at each ocean outfall).
As discussed in the Puerto Rico Water Quality Inventory and List of
Impaired Waters--2002 305(b)/303(d) Integrated Report Final Version
(February 2003), there is little or no data available on which to
determine the attainability of the swimmable use in the bay components
of the Subject Waterbodies. According to this report, there is
insufficient data to determine the use attainment for 38% of the
coastal miles and 89% of the estuarine acres. The Subject Waterbodies
with insufficient data to make a use attainment determination include
Yabucoa Port, portions of Guayanilla and Tallaboa Bays, and San Juan
Port. The EQB determined that the following Subject Waterbodies were
attaining water quality standards: Mayaguez Bay, Ponce Port, and
portions of Guayanilla and Tallaboa Bays. However, EPA's regulations at
40 CFR part 131 require that water quality standards provide for
fishable/swimmable uses unless those uses have been shown to be
unattainable, which effectively creates a rebuttable presumption of
attainability. If the Commonwealth takes into account the appropriate
biological, chemical, and physical factors in completing a sound
analysis of use attainability and concludes that the swimmable use is
not attainable in these waterbodies, EPA would expect to approve the
Commonwealth's action (if it meets all requirements of EPA's
regulations at 40 CFR part 131). In an effort to properly characterize
the attainability of the bays which remain classified SC, EQB is
developing a plan for data collection and analysis so that they can
demonstrate whether the swimmable use is attainable in these waters.
The last broad category of information considered by EPA in its
decision-making process was monitoring data from a sample of
potentially affected dischargers to the waterbodies (as reflected in
Discharge Monitoring Reports or DMRs). As discussed in section V, EPA
analyzed the extent to which the proposed Federal use designations and
criteria may lead to the development of more stringent NPDES permit
limits and, if so, what types of controls would be needed by
potentially affected facilities to meet such limits. Discharger
information was used in one of two ways by the Agency. First, EPA used
monitoring data to assess point sources to the affected waterbodies and
to help determine whether their pollutant discharges could contribute
to ambient exceedances of criteria. Second, the Agency used the
monitoring data to determine whether potentially affected dischargers
would need to make significant alterations to their operations (or if
they could, in fact, meet permit limits for bacteria that would be
associated with the swimmable use). Information indicating that
potentially affected dischargers could generally meet such revised
limits based on the proposed bacteria criteria would
[[Page 3519]]
support the presumption that the swimmable use is attainable.
Based upon this approach, EPA evaluated all available data and
information to determine whether the swimmable use is attainable for
the Subject Waterbodies. As a result, EPA proposed to include primary
contact recreation as a specified designated use for the Subject
Waterbodies. In addition, EPA proposed to include bacteria criteria
which are protective of primary contact recreation for the Subject
Waterbodies. The proposed bacteria criteria are the same as the
Commonwealth's criteria associated with the Class SB use for fecal
coliform and enterococci, set out at Section 3.2.2 of the PRWQSR. If
Puerto Rico classifies these waterbodies with use designations
consistent with the CWA and 40 CFR part 131, EPA would expect to
approve those use designations and initiate rulemaking to rescind
today's rule. EPA notes that a water's use designation of primary
contact recreation (made solely for CWA purposes) and adoption of water
quality criteria protective of that use are intended to ensure that
water quality will protect swimming if it occurs in such waters. A
water's use designation of primary contact recreation is not an
official government sanction that swimming necessarily is recommended
in such waters. There may be other considerations, such as safety, in
deciding whether swimming is appropriate.
B. Comments Received in Response to EPA's October 2003 Proposal
The Agency evaluated all the comments submitted to EPA during the
public comment period for the proposed rule with regard to the primary
contact recreation use and bacteria criteria for the Subject
Waterbodies.
A few commenters noted that the Subject Waterbodies are not
currently used for swimming purposes due to their physical
characteristics and safety issues associated with their use as
commercial ports and, therefore, should remain classified as secondary
contact recreation. Two commenters noted that the U.S. Coast Guard has
established ``safety zones'' in Guayanilla and Tallaboa Bays preventing
other vessels from being within a certain distance of a vessel carrying
Liquefied Natural Gas or Liquefied Hazardous Gas. Two commenters stated
that Guayanilla Bay is being considered as part of the Port of
Americas, a trans-shipment port being developed on the southern coast
of Puerto Rico.
EPA recognizes that the Commonwealth does not wish to encourage
swimming in some of the Subject Waterbodies because of their physical
characteristics and safety issues. The Commonwealth has a range of
options available to them, including demonstrating that it is not
feasible to attain the primary contact recreation use in a use
attainability analysis that supports removing the use. In fact, EPA has
approved secondary contact recreation protection for waters used as
commercials ports based upon adequate demonstration. In this case, EPA
is aware from other sources in the record that primary contact
recreation activities occur in portions of these waters at least on a
limited basis. While this information does not automatically compel the
Agency to require primary contact recreation, in this case there is no
information to support that it is not feasible to attain water quality
commensurate with primary contact recreation protection.
Furthermore, although portions of the waters in the Subject
Waterbodies are specifically managed as ``safety zones'' precluding
access, these conditions may not be present for the entirety of the
waters designated for primary contact recreation in today's action.
EPA's regulations are not intended to interfere with the Coast Guard's
regulations. EPA's establishment of a primary contact recreation
designated use for these waters does not advocate that swimming take
place regardless of safety issues that may be present within the
waterbody, such as the presence of vessels carrying hazardous cargo.
For these reasons, EPA believes primary contact recreation is the
appropriate designated use based on consideration of all available
information at this time.
EPA's approach in this rulemaking does not undermine the
Commonwealth's primary role in designating uses and setting criteria
for waters in Puerto Rico. If the Commonwealth reclassifies the Subject
Waterbodies to include a swimmable designated use; adopts criteria
sufficient to protect a swimmable use; or completes a UAA, taking into
account appropriate biological, chemical and physical factors, and
concludes that the swimmable use is not attainable for these
waterbodies, EPA would expect to approve the Commonwealth's action (if
it meets all requirements of EPA's regulations at 40 CFR part 131) and
initiate a rulemaking to rescind today's rule. EPA encourages the
Commonwealth to continue evaluating the appropriate use designation for
these waterbodies.
If the Commonwealth prefers to designate the Subject Waterbodies as
secondary contact recreation (i.e., Puerto Rico's current use
classification of SC), and does not conduct UAAs for the waterbodies,
it must set bacteriological criteria sufficient to support primary
contact recreation. This approach is consistent with the CWA section
101(a) goal. EPA recognizes that, in some cases, it may not make sense
to encourage use of a waterbody for swimming due to safety issues;
however, swimming may occur anyway and, therefore, states establish
water quality criteria sufficient to protect primary contact recreation
throughout the waterbody and for any incidental contact recreation that
may occur.
One commenter stated that fecal coliform is not an appropriate
bacteriological criterion in tropical waters.
EPA is promulgating both fecal coliform and enterococci criteria
for the Subject Waterbodies. EPA believes the use of both these
indicators will adequately protect the primary contact designated use.
Further, EPA has approved the use of these indicators in other states
for tropical waters where primary contact recreation occurs. Where
enterococci is newly adopted, as in Puerto Rico, States may continue to
include fecal coliform in their water quality standards for a period of
time so they can continue to make regulatory decisions while the state
collects data on enterococci. EPA believes enterococci is a better
indicator to protect against gastro-intestinal illness and EPA expects
Puerto Rico to continue to collect the necessary enterococci data to
enable the Commonwealth to remove the fecal coliform criteria for
recreational waters during its next triennial review.
One commenter also stated that EPA must promulgate the same
dissolved oxygen (DO) criterion for the Subject Waterbodies that Puerto
Rico has for its Class SB waters because the lower DO criterion of 4
mg/l for Class SC waters will impede the aquatic life use.
EPA disagrees. The DO criterion for Class SC waters has been
approved as protective of the aquatic life use. The biological
monitoring information included in the Quarterly Reports of the 301(h)
Waiver Demonstration Studies indicates that healthy aquatic ecosystems
exist in Class SC waters in Puerto Rico, supporting the position that
the DO criterion of 4.0 mg/l is adequate to protect aquatic life. In
addition, the scope of this promulgation is limited to establishing a
primary contact recreation use and associated bacteria criteria because
the Subject Waterbodies do not meet the CWA's goal of ``swimmable.''
However, the use designations and associated criteria applicable to
these waterbodies,
[[Page 3520]]
including the current DO criterion, do meet the ``fishable'' goal.
One commenter asserted that EPA must ensure today's action does not
jeopardize the existence of threatened or endangered species.
On September 19, 2003, EPA initiated consultation with the U.S.
Fish and Wildlife Service (FWS) and the National Marine Fisheries
Service (NMFS) regarding the proposed rule. In a letter dated October
7, 2003, FWS concurred that the final action is not likely to adversely
affect threatened or endangered species. NMFS has not yet provided its
final position. EPA is continuing to work with NMFS to conclude this
consultation.
One commenter described his views on the state of compliance and
enforcement activities in Puerto Rico. This comment did not pertain
specifically to the facilities potentially affected by today's action
and therefore not within the scope of today's action.
Based on thorough evaluation of information provided to EPA through
the public comment process, EPA believes the primary contact recreation
designated use and the bacteria criteria to protect primary contact
recreation that were proposed for the Subject Waterbodies remain
appropriate and consistent with the requirements of the CWA. Therefore,
EPA is promulgating a designated use of primary contact recreation to
be added to the current designated uses assigned to the Subject
Waterbodies. EPA is also promulgating bacteria criteria sufficient to
protect for the primary contact recreation use, which will supersede
the Commonwealth's current bacteria criteria for the Subject
Waterbodies.
IV. Alternative Regulatory Approaches and Implementation Mechanisms
Today's rule reflects EPA's determination that primary contact
recreation is an appropriate use designation for the Subject
Waterbodies based upon the information currently available to EPA. In
developing today's rule, EPA considered data and information submitted
to the Agency during the comment period. However, it is possible that
relevant information for these waterbodies may become available in the
future. There are several ways to ensure that the use and its
implementing mechanisms appropriately take into account such future
information.
A. Designating Uses
States have considerable discretion in designating uses. A State
may find that changes in use designations are warranted. EPA will
review any new or revised use designations adopted by the Commonwealth
for these waters to determine if the standards meet the requirements of
the CWA and implementing regulations. If approved, EPA would initiate a
rulemaking to rescind the Federal water quality standards being
promulgated today.
In adopting recreation uses, the Commonwealth may wish to consider
additional categories of recreation uses. For example, Puerto Rico
could establish more than one category of primary contact recreation to
differentiate between waters where recreation is known to occur and
waters where recreation is not known to occur but may be attained based
on water quality, flow, and depth characteristics.
EPA cautions the Commonwealth that it must conduct use
attainability analyses as described in 40 CFR 131.10(g) when adopting
water quality standards that result in uses not specified in section
101(a)(2) of the CWA or that result in subcategories of uses specified
in section 101(a)(2) that require less stringent criteria (see 40 CFR
131.10(j)).
B. Site-Specific Criteria
The Commonwealth may also develop data indicating a site-specific
water quality criterion for a particular pollutant is appropriate and
take action to adopt such a criterion into their water quality
standards. Site-specific criteria are allowed by regulation and are
subject to EPA review and approval. The regulation (see 40 CFR
131.11(a)) requires States to adopt criteria to protect designated uses
based on sound scientific rationale and containing sufficient
parameters or constituents to protect the designated use. In adopting
water quality criteria, States should establish numerical values based
on 304(a) criteria, 304(a) criteria modified to reflect site-specific
conditions, or other scientifically defensible methods. Alternatively,
States may establish narrative criteria where numerical criteria cannot
be determined or to supplement numeric criteria (see 40 CFR 131.11(b)).
EPA does not have specific guidance for States and authorized Tribes on
developing site-specific criteria for the protection of recreation
uses. This does not preclude the Commonwealth from developing its own
scientifically defensible methods. Today's rule does not limit Puerto
Rico's ability to modify the criteria applicable to the Federal
swimmable use.
C. Variances
Water quality standards variances are another alternative that
allows EPA to modify the standards with respect to a facility
requesting the variance. Puerto Rico has an EPA-approved variance
procedure in the PRWQSR (Article 9). Today's rule also contains a
Federal variance procedure.
Variances are particularly suitable when the cause of non-
attainment is discharger-specific and/or data indicates that the
designated use in question will eventually be attainable. EPA has
approved the granting of water quality standards variances by States
when circumstances might otherwise justify changing a use designation
on grounds of unattainability (i.e., the six circumstances described in
40 CFR 131.10(g)). In contrast to a change in standards that removes a
use designation for a waterbody, a water quality standards variance is
time-limited, only applies to the discharger to whom it is granted, and
only applies to the pollutant parameter(s) upon which the finding of
unattainability was based. The underlying standard remains in effect
for all other purposes.
One example might be where the Commonwealth or a permittee
demonstrates that the primary contact recreation use cannot be attained
pursuant to 40 CFR 131.10(g) because of high levels of fecal coliforms
and/or enterococci from a wastewater treatment facility, and it would
cause widespread social and economic harm to comply with the standard
and there is uncertainty whether an upgraded treatment technology might
allow the designated use to be attained. In this case, a temporary
variance may be appropriate. The variance would allow the discharger's
permit to include limits based on relaxed criteria for fecal coliform
and/or enterococci until the new technology is in place and it is
determined if the underlying designated use is attainable. The
practical effect of such a variance is to allow a permit to be written
using less stringent criteria, while encouraging ultimate attainment of
the underlying standard. A water quality standards variance provides a
mechanism for ensuring compliance with sections 301(b)(1)(C) and
402(a)(1) of the CWA while also granting temporary relief to point
source dischargers.
While 40 CFR 131.13 allows States to adopt variance procedures for
State-adopted water quality standards, such State procedures may not be
used to grant variances from Federally promulgated standards. It is
appropriate to provide comparable Federal procedures to address new
information that may become available. Therefore, under EPA's rule, the
Region 2 Regional Administrator may grant water quality
[[Page 3521]]
standard variances where a permittee submits data demonstrating that
the primary contact recreation designated use is not attainable for any
of the reasons in 40 CFR 131.10(g). This variance procedure will apply
to the primary contact recreation use for the Subject Waterbodies.
Today's rule spells out the process for applying for and granting
such variances. EPA is establishing informal adjudication processes for
reviewing and granting variance requests. That process is contained in
40 CFR 131.40(c)(4) of today's rule. Because water quality standards
variances are revisions to water quality standards, the Regional
Administrator will provide public notice of the proposed variance and
an opportunity for public comment. EPA understands that variance
related issues may arise in the context of permit issuance.
The variance procedures in today's rule require an applicant for a
water quality standards variance to submit a request and supporting
information to the Regional Administrator (or his/her delegatee). The
applicant must demonstrate that the designated use is unattainable for
one of the reasons specified in 40 CFR 131.10(g). A variance will not
be granted if the use could be attained, at a minimum, by implementing
effluent limitations required under sections 301(b) and 306 of the CWA
and reasonable best management practices for nonpoint source control.
Under today's rule, a variance may not exceed five years or the
term of the NPDES permit, whichever is less. A variance may be renewed
if the permittee demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if EPA finds that the
conditions of 40 CFR 131.10(g) are not met or if the permittee did not
comply with the conditions of the original variance.
V. Economic Analysis
Today's rule will have no direct impact on any entity because the
rule simply establishes water quality standards (e.g., use
designations) which by themselves do not directly impose any costs.
These standards, however, may serve as a basis for development of NPDES
permit limits. In Puerto Rico, EPA Region 2 is the NPDES permitting
authority and retains considerable discretion in implementing
standards. Thus, until EPA Region 2 implements these water quality
standards, there will be no effect on any entity. Nonetheless, EPA
prepared a preliminary analysis to evaluate potential costs to NPDES
dischargers in Puerto Rico associated with future implementation of
EPA's Federal standards.
A. Identifying Affected Facilities
According to EPA's Permit Compliance System (PCS), there are 593
NPDES-permitted facilities in Puerto Rico. Eighty-four of the
facilities are classified as major dischargers, and 509 are minor or
general permit dischargers. EPA did not include general permit
facilities in its analysis because data for such facilities are
extremely limited, and flows are usually negligible. Furthermore, EPA
could not determine if any of these facilities actually discharge to
the affected waterbodies because location information is not available
in EPA's PCS database. Therefore, EPA's analysis includes a universe of
285 permitted facilities (84 majors and 201 minors).
To identify facilities potentially affected by today's rule, EPA
assumed that only facilities that have the potential to affect (i.e.,
cause an increase in fecal coliform levels) the Subject Waterbodies for
which EPA is designating a new primary contact recreation use may be
affected by this rule. Using GIS software, EPA identified these
facilities by overlaying PCS facilities with the potentially affected
waters and their tributaries currently designated for a Class SC use.
EPA assumed that only wastewater treatment plants or military
facilities with similar effluent characteristics (i.e., facilities
having the potential to discharge fecal coliforms) would potentially be
affected by today's rule. Table 1 summarizes the universe of
potentially affected facilities by type and category.
Table 1.--Estimated Number of Facilities Potentially Affected by This
Rule
------------------------------------------------------------------------
Number of facilities
Category --------------------------------
Major Minor Total
------------------------------------------------------------------------
Military............................... 1 2 3
Municipal.............................. 19 10 29
Total.................................. 20 12 32
------------------------------------------------------------------------
B. Method For Estimating Potential Compliance Costs
EPA identified a total of 32 facilities (20 majors and 12 minors)
that may be potentially affected by the primary contact designated use.
EPA evaluated a sample of facilities based on discharger type and
category from this group for potential cost impacts associated with the
rule. For these sample facilities, EPA evaluated available effluent
data from its PCS database to determine the potential controls that may
ultimately be needed as a result of the rule.
EPA estimated on a case-by-case basis the most cost-effective
control strategy for each sample facility to achieve compliance with
the bacteria criteria. EPA assumed that projected effluent limits for
fecal coliform will be applied as criteria end-of-pipe (a monthly
geometric mean of 200 colonies/100 mL and not more than 20% of samples
exceeding 400 colonies/100 mL) because the facilities' current permits
apply the current criteria in the same manner. EPA assumed that a
sample facility would incur costs if average monthly effluent
concentrations (or existing permit limit, whichever is less) indicate
that the facility would not be in compliance with the most stringent
criterion.
EPA evaluated each facility's potential compliance with projected
permit limits based on available monthly average fecal coliform values
from the Agency's PCS database. If monthly average values are not
available, EPA evaluated potential compliance based on maximum monthly
values. EPA determined potential compliance with the projected limit
for each sample facility based on the relative magnitude of the maximum
average monthly values, the pattern of occurrence of such values (i.e.,
when maximum values occurred), and current treatment performance
characteristics (e.g., BOD and TSS concentrations, compliance with
current permit). For facilities exceeding their current limits, EPA
assumed that facilities would install the necessary controls for
compliance with current standards, and would incur costs for additional
treatment process optimization (e.g., increase chlorine dose, improve
mixing
[[Page 3522]]
conditions, increase contact time) for compliance with the projected
limit. For facilities that are in compliance with their current permit
limits but would not comply with the projected limit, EPA also assumed
that process optimization of their chlorination process may be
necessary for compliance.
C. Results
EPA estimated the potential costs associated with the primary
contact designated use for the Subject Waterbodies. Based on an
evaluation of the sample of potentially affected facilities, EPA
estimated that the potential total annual cost associated with the rule
is $2.7 million.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
Today's rule simply establishes water quality standards that may serve
as a basis for development of NPDES permit limits; it does not include
any information collection, reporting, or record-keeping requirements.
Burden means the total time, effort or financial resources expended
by persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant 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 according to
RFA default definitions for small business (based on SBA size
standards); (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering these economic impacts of today's rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This rule
will not impose any requirements on small entities.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rule's requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
Today's rule establishes no requirements applicable to small entities,
and so is not susceptible to regulatory flexibility analysis as
prescribed by the RFA. (``[N]o [regulatory flexibility] analysis is
necessary when an agency determines that the rule will not have a
significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule,'' United Distribution
at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C.
Cir. 1985) (emphasis added by United Distribution court).)
Under the CWA water quality standards program, States must adopt
water quality standards for their waters and must submit those water
quality standards to EPA for approval; if the Agency disapproves a
State standard and the State does not adopt appropriate revisions to
address EPA's disapproval, EPA must promulgate standards consistent
with the statutory requirements. EPA also has the authority to
promulgate criteria or standards in any case where the Administrator
determines that a new or revised standard is necessary to meet the
requirements of the Act. These State standards (or EPA-promulgated
standards) are implemented through various water quality control
programs including the NPDES program, which limits discharges to
navigable waters except in compliance with an NPDES permit. The CWA
requires that all NPDES permits include any limits on discharges that
are necessary to meet applicable water quality standards.
Thus, under the CWA, EPA's promulgation of water quality standards
establishes standards that the State generally implements through the
NPDES permit process. In this case, however, EPA Region 2 is the NPDES
permitting authority in Puerto Rico. As such, EPA Region 2 has
discretion in developing discharge limits as needed to meet the
standards. While Region 2's implementation of Federally promulgated
water quality standards may result in new or revised discharge limits
being placed on small entities, the standards themselves do not
directly apply to any discharger, including small entities.
Today's rule, as explained earlier, does not itself establish any
requirements that are directly applicable to small entities. As a
result of this action, EPA Region 2 will need to ensure that permits it
issues include any limitations on discharges necessary to comply with
the standards established in this rule. In doing so, the Region will
[[Page 3523]]
have a number of choices associated with permit writing. While the
implementation of the rule may ultimately result in some new or revised
permit conditions for some dischargers, EPA's action today does not
impose any of these as yet unknown requirements on small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local or Tribal
governments or the private sector. The rule imposes no enforceable duty
on the Commonwealth of Puerto Rico, or any other State, local or Tribal
government or the private sector; rather, this rule establishes a
designated use for primary contact recreation and associated bacteria
criteria for the Subject Waterbodies, which, when combined with
Commonwealth adopted water quality criteria, constitute water quality
standards for those waterbodies. The Commonwealth and EPA may use these
resulting water quality standards in implementing its water quality
control programs. Today's rule does not regulate or affect any entity
and, therefore, is not subject to the requirements of sections 202 and
205 of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As stated, the rule imposes no enforceable requirements on
any party, including small governments. Thus, this rule is not subject
to the requirements of section 203 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
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 rule does not have federalism implications. It will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. The rule will not affect the nature
of the relationship between EPA and States generally, for the rule only
applies to waterbodies in Puerto Rico (which is considered a ``State''
for purposes of the water quality standards program). Further, the rule
will not substantially affect the relationship of EPA and the
Commonwealth of Puerto Rico, or the distribution of power or
responsibilities between EPA and the various levels of government. The
rule will not alter the Commonwealth's considerable discretion in
implementing these water quality standards. Further, this rule will not
preclude Puerto Rico from adopting water quality standards that meet
the requirements of the CWA. Thus, Executive Order 13132 does not apply
to this rule.
Although Executive Order 13132 does not apply to this rule, EPA did
consult with representatives of the Commonwealth in developing this
rule. Prior to this rulemaking action, EPA had numerous phone calls,
meetings and exchanges of written correspondence with EQB to discuss
EPA's concerns with the Commonwealth's water quality standards,
possible remedies for addressing the inadequate sections of their water
quality standards, the use designations and criteria in today's rule,
and the Federal rulemaking process. For a more detailed description of
EPA's interaction with the Commonwealth on this rulemaking, refer to
section II.C.2. EPA will continue to work with the Commonwealth with
regard to their ongoing efforts to adopt water quality standards that
meet the requirements of the CWA, including water quality standards for
the Subject Waterbodies.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This final rule does not have tribal implications. It will not have
substantial direct effects on tribal governments, on the relationship
between the Federal government and Indian tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There are no Indian Tribes in Puerto Rico, where this rule applies.
Thus, Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
[[Page 3524]]
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. Further,
it does not concern an environmental health or safety risk that EPA has
reason to believe may have a disproportionate effect on children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
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
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and 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 action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective March 26, 2004.
List of Subjects in 40 CFR Part 131
Environmental protection, Indian lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: January 20, 2004.
Michael O. Leavitt,
Administrator.
0
For the reasons set forth in the preamble, EPA amends 40 CFR part 131
as follows:
PART 131--WATER QUALITY STANDARDS
0
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
0
2. Section 131.40 is added to read as follows:
Sec. 131.40 Puerto Rico.
(a) Use designations for marine waters. In addition to the
Commonwealth's adopted use designations, the following waterbodies in
Puerto Rico have the beneficial use designated in this paragraph (a)
within the bays specified below, and within the Commonwealth's
territorial seas, as defined in section 502(8) of the Clean Water Act,
and 33 CFR 2.05-5, except such waters classified by the Commonwealth as
SB.
----------------------------------------------------------------------------------------------------------------
Waterbody segment From To Designated use
----------------------------------------------------------------------------------------------------------------
Coastal Waters....................... 500m offshore.......... 3 miles offshore....... Primary Contact
Recreation.
Guayanilla & Tallaboa Bays........... Cayo Parguera.......... Punta Verraco.......... Primary Contact
Recreation.
Mayaguez Bay......................... Punta Guanajibo........ Punta Algarrobo........ Primary Contact
Recreation.
Ponce Port........................... Punta Carenero......... Punta Cuchara.......... Primary Contact
Recreation.
San Juan Port........................ mouth of Rio Bayamon... Punta El Morro......... Primary Contact
Recreation.
Yabucoa Port......................... Punta Icacos........... Punta Yeguas........... Primary Contact
Recreation.
----------------------------------------------------------------------------------------------------------------
(b) Criteria that apply to Puerto Rico's marine waters. In addition
to all other Commonwealth criteria, the following criteria for bacteria
apply to the waterbodies in paragraph (a) of this section:
Bacteria: The fecal coliform geometric mean of a series of
representative samples (at least five samples) of the waters taken
sequentially shall not exceed 200 colonies/100 ml, and not more than 20
percent of the samples shall exceed 400 colonies/100 ml. The
enterococci density in terms of geometric mean of at least five
representative samples taken sequentially shall not exceed 35/100 ml.
No single sample should exceed the upper confidence limit of 75% using
0.7 as the log standard deviation until sufficient site data exist to
establish a site-specific log standard deviation.
(c) Water quality standard variances. (1) The Regional
Administrator, EPA Region 2, is authorized to grant variances from the
water quality standards in paragraphs (a) and (b) of this section where
the requirements of this paragraph (c) are met. A water quality
standard variance applies only to the permittee requesting the variance
and only to the pollutant or pollutants specified in the variance; the
underlying water quality standard otherwise remains in effect.
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by implementing effluent limitations
required under sections 301(b) and 306 of the CWA and by the permittee
implementing reasonable best management practices for nonpoint source
control; or
(ii) The variance would likely jeopardize the continued existence
of any threatened or endangered species listed under section 4 of the
Endangered Species Act or result in the destruction or adverse
modification of such species' critical habitat.
(3) A water quality standards variance may be granted if the
applicant
[[Page 3525]]
demonstrates to EPA that attaining the water quality standard is not
feasible because:
(i) Naturally occurring pollutant concentrations prevent the
attainment of the use;
(ii) Natural, ephemeral, intermittent or low flow conditions or
water levels prevent the attainment of the use, unless these conditions
may be compensated for by the discharge of sufficient volume of
effluent discharges without violating Commonwealth water conservation
requirements to enable uses to be met;
(iii) Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place;
(iv) Dams, diversions or other types of hydrologic modifications
preclude the attainment of the use, and it is not feasible to restore
the waterbody to its original condition or to operate such modification
in a way which would result in the attainment of the use;
(v) Physical conditions related to the natural features of the
waterbody, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like unrelated to water quality, preclude
attainment of aquatic life protection uses; or
(vi) Controls more stringent than those required by sections 301(b)
and 306 of the CWA would result in substantial and widespread economic
and social impact.
(4) Procedures. An applicant for a water quality standards variance
shall submit a request to the Regional Administrator of EPA Region 2.
The application shall include all relevant information showing that the
requirements for a variance have been met. The applicant must
demonstrate that the designated use is unattainable for one of the
reasons specified in paragraph (c)(3) of this section. If the Regional
Administrator preliminarily determines that grounds exist for granting
a variance, he/she shall provide public notice of the proposed variance
and provide an opportunity for public comment. Any activities required
as a condition of the Regional Administrator's granting of a variance
shall be included as conditions of the NPDES permit for the applicant.
These terms and conditions shall be incorporated into the applicant's
NPDES permit through the permit reissuance process or through a
modification of the permit pursuant to the applicable permit
modification provisions of Puerto Rico's NPDES program.
(5) A variance may not exceed five years or the term of the NPDES
permit, whichever is less. A variance may be renewed if the applicant
reapplies and demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if the applicant did
not comply with the conditions of the original variance, or otherwise
does not meet the requirements of this section.
[FR Doc. 04-1545 Filed 1-23-04; 8:45 am]
BILLING CODE 6560-50-P