26550 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules

process of developing the proposed

regulation.

The proposed rule does not have

federalism implications. It will not have

substantial direct effect 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

proposed rule solely concerns the

territory of the Virgin Island, and EPA

has made the determination that E.O.

13132 is therefore inapplicable. Thus,

the requirements of section 6 of the

Executive Order do not apply to this

proposed rule. EPA notes, however, that

the proposed rule does not preempt any

law or regulation of the government of

the Virgin Islands, nor does it impose

any requirements that are inconsistent

with the fundamental federalism

principles contained in Executive Order

13132. Moreover, as the preamble,

above, make clear, there has been

extensive consultation by EPA with the

government of the Virgin Islands

concerning its municipal solid waste

landfill permit program prior to today’s

action.

H. Executive Order 13084

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal

governments, or EPA consults with

those governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected 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.’’ This proposed rule does

not significantly or uniquely affect the

communities of Indian tribal

governments because there are no

federally recognized Indian Tribal

governments in the Virgin Islands, and

the rule solely affects the government of

the Virgin Islands. Accordingly, the

requirements of Section 3(b) of

Executive Order 13084 do not apply to

this proposed rule.

I. Executive Order 12898:

Environmental Justice

Under Executive Order 12898 EPA

has undertaken to incorporate

environmental justice into its policies

and programs. EPA is committed to

addressing environmental justice

concerns and is assuming a leadership

role in environmental justice initiatives

to enhance environmental quality for

residents of all communities. The

Agency’s goals are to ensure that no

segment of the population, regardless of

race, color, national origin, or income

bears disproportionately high and

adverse human health and

environmental effects as a result of

EPA’s policies, programs, and activities,

and that all people live in clean and

sustainable communities.

The Agency believes that today’s

proposed rule will potentially advance

environmental justice causes. The

process set in motion by this proposed

rule allows all potentially affected

segments of the population of the Virgin

Islands to participate in public hearings

and/or to provide public comment on

health and environmental concerns that

they feel may arise pursuant to the

Agency’s proposed action. In addition,

the purpose of today’s proposed rule is

to help achieve compliance with 40 CFR

Part 258 municipal solid waste landfill

criteria, which will provide direct

benefit to residents living near the

landfill.

Authority: This proposed rule is issued

under the authority of Section 4005 of the

Solid Waste Disposal Act, as amended, 42

U.S.C. 6945.

Dated: April 19, 2000.

William J. Muszynski,

Acting Regional Administrator, Region 2.

[FR Doc. 00–10770 Filed 5–5–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 403

[FRL –6602–5]

Community XL (XLC) Site-Specific

Rulemaking for Steele County,

Minnesota; Proposed Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The Environmental Protection

Agency (EPA) is proposing to

implement a project under the Project

XLC program for certain facilities in

Steele County, Minnesota. The terms of

the project are defined in a draft Final

Project Agreement (FPA) which was

made available for public review and

comment through a Federal Register

notice on December 29, 1999 (64 FR

73047). In addition, EPA is proposing a

site-specific rule, applicable only to the

Steele County sponsors who are

Participating Industrial Users, to

facilitate implementation of the project.

By this document, EPA solicits

comment on the proposed rule. This

proposed site-specific rule is intended

to provide regulatory changes under the

Clean Water Act (CWA or the Act) to

implement the Community XL project,

which will result in superior

environmental performance.

The proposed site-specific rule would

change some of the CWA requirements

which apply to the sponsors who are

Participating Industrial Users to

promote a reduction in the discharge of

four priority metals and certain

conventional pollutants, a reduction in

water usage, and the development of an

environmental management system. An

incentive-based monitoring approach

would be implemented, such that as

discharge reduction goals are met,

monitoring frequency could be reduced,

mass-based limits would replace certain

concentration limits, and an alternative

Significant Noncompliance (SNC)

publication approach would be tested.

Monitoring reductions for pollutants

determined not to be present in an

industry’s wastestream would also be

authorized.

DATES: Public Comments: All public

comments on the proposed rule must be

received on or before May 30, 2000.

ADDRESSES: Comments: Written

comments on the proposed rule should

be mailed to: Ms. Abeer Hashem, U.S.

Environmental Protection Agency,

Region V, WC–15J, 77 West Jackson

Boulevard, Chicago, IL 60604–3507.

Please send an original and two copies

of all comments, and refer to Docket for

the Steele County Site-Specific

Rulemaking.

Viewing Project Materials: A docket

containing the proposed rule, draft Final

Project Agreement, supporting

materials, and public comments is

available for public inspection and

copying at U.S. EPA, Region V, Water

Division, Room Number 15046, 77 West

Jackson Boulevard, Chicago, IL 60604–

3507. The Office is open from 9 a.m. to

4 p.m. Monday through Friday,

excluding federal holidays. The public

Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules 26551

is encouraged to phone in advance to

review docket materials. Appointments

can be scheduled by phoning Abeer

Hashem at (312) 886–1331. Refer to the

Docket for the Steele County SiteSpecific Rulemaking. The public may

copy a maximum of 100 pages at no

charge. Additional copies cost 15 cents

per page. Project materials are also

available for review for today’s action

on the World Wide Web at: http://

www.epa.gov/projectxl/.

Supporting materials are also

available for inspection and copying at

U.S. EPA, Headquarters, 401 M Street

SW, Room 445 West Tower,

Washington, DC 20460 during normal

business hours. Persons wishing to view

the materials at the Washington, DC

location are encouraged to contact Ms.

Kristina Heinemann in advance by

telephoning (202) 260–5355. In addition

supporting materials are available at the

Owatonna, MN Public Library, 105 Elm

Avenue North, Owatonna, MN 55060.

The phone number for the library is

507–444–2460, TDD 507–444–2480.

FOR FURTHER INFORMATION CONTACT: Ms.

Abeer Hashem or Mr. Matthew

Gluckman, U.S. Environmental

Protection Agency, Region V, Water

Division, WC–15J or WN–16J, 77 West

Jackson Boulevard, Chicago, IL 60604–

3507. Ms. Hashem can be reached at

(312) 886–1331 and Mr. Gluckman can

be reached at (312) 886–6089. Further

information on today’s action may also

be obtained on the world wide web at:

http://www.epa.gov/projectxl/.

SUPPLEMENTARY INFORMATION: This

proposed site-specific rule sets forth the

mechanism through which the sponsors

would attempt to reach discharge

reduction goals for chromium, copper,

nickel, zinc, reach water use reduction

goals, and commit to arrange and

participate in training for the

development of an Environmental

Management System (EMS), as outlined

in the Steele County Project XLC draft

FPA (the document that embodies the

parties’ intent to implement this

project). Today’s proposal would

facilitate implementation of the draft

FPA that has been developed by the

Steele County Project Sponsors, EPA,

the Steele County Community Advisory

Committee (‘‘ACAC’’), the Minnesota

Pollution Control Agency (‘‘AMPCA’’),

the Owatonna Waste Water Treatment

Facility (OWWTF), the Blooming Prairie

Waste Water Treatment Facility

(BPWWTF), and other stakeholders. The

FPA is available for review in the docket

for today’s action and on the world wide

web at http://www.epa.gov/projectxl/.

The draft FPA addresses the nine

Project XLC criteria, and the expectation

of EPA that this XLC project will meet

those criteria. Those criteria are: (1)

Environmental results superior to what

would be achieved through compliance

with current and reasonably anticipated

future regulations; (2) economic

opportunity; (3) stakeholder

involvement, support and capacity for

community participation; (4) test of

innovative, multi-media, pollution

prevention strategies for achieving

environmental results; (5) approaches

that could be evaluated for future

broader application (transferability); (6)

technical and administrative feasibility;

(7) mechanisms for monitoring,

reporting, and evaluation; (8)

consistency with Executive Order 12898

on Environmental Justice (avoidance of

shifting of risk burden); and (9)

community planning. The draft FPA

specifically addresses the manner in

which the project is expected to

produce superior environmental

benefits.

EPA is proposing today’s rule to

implement the provisions of this Project

XLC initiative that require regulatory

changes. However, Minnesota has had

an approved state National Pollutant

Discharge Elimination System (NPDES)

program since June 30, 1974, and an

approved State pretreatment program

since July 16, 1979. Therefore, the

requirements outlined in today’s

proposed rule would not take effect

until Minnesota revises the Owatonna

pretreatment program as incorporated in

its NPDES permit. EPA would not be the

primary regulatory agency responsible

for implementing the requirements of

this rule. In addition, for the sake of

simplicity, the remainder of this

preamble refers to the effects of this

rule, although it would be the

corresponding State and local law and

corresponding NPDES and Industrial

User permits that would actually govern

this XL project.

Outline of Today’s Document

The information presented in this

preamble is organized as follows:

I. Authority

II. Background

A. Overview of Project XL and XLC

B. Overview of the Steele County XLC

Project

1. Description of the Steele County

Community XL Project

2. What Are the Environmental Benefits of

the Project?

3. What Are the Economic Benefits and

Paperwork Reduction Deriving From the

Project?

4. Stakeholder Involvement

5. What Is the Project Duration and

Completion Date?

6. How Will EPA Ensure That Only

Appropriate Sponsors Continue To

Receive Flexibility Under This Proposal?

7. How May the Project Be Terminated?

III. Rule Description

A. Clean Water Act Requirements, PreTreatment Streamlining Proposal and

Summary of Regulatory Requirements for

the Steele County XL Project

IV. Additional Information

A. How Does This Rule Comply With

Executive Order 12866?

B. Is a Regulatory Flexibility Analysis

Required?

C. Is an Information Collection Request

Required for This Rule Under the

Paperwork Reduction Act?

D. Does This Rule Trigger the

Requirements of the Unfunded Mandates

Reform Act?

E. How Does This Rule Comply With

Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks?

F. How Does This Rule Comply With

Executive Order 13132 on Federalism?

G. How Does This Rule Comply With

Executive Order 13084: Consultation and

Coordination With Indian Tribal

Governments?

H. Does This Rule Comply with National

Technology Transfer and Advancement

Act of 1995 (‘‘ANTTAA’’)?

I. Authority

This regulation is being proposed

under the authority of sections 307, 308,

and 501 of the CWA, 33 U.S.C. 1317,

1318, 1361.

II. Background

A. Overview of Project XL and XLC

Each Project XL pilot—‘‘eXcellence

and Leadership’’ is described in a Final

Project Agreement (FPA). For this

Project XL for Communities (XLC), the

draft FPA sets forth the intentions of

EPA, the Minnesota Pollution Control

Agency (MPCA) and the Steele County

Community with regard to a project

developed under Project XLC, an EPA

initiative to allow regulated entities to

achieve better environmental results

using common sense, cost effective

strategies. This regulation will enable

implementation of the project.

Project XL was announced on March

16, 1995, as a central part of the

National Performance Review and the

EPA’s effort to reinvent environmental

protection. See 60 FR 27282 (May 23,

1995) and 60 FR 55569 (November 1,

1995). Project XL provides a limited

number of private and public regulated

entities an opportunity to develop their

own pilot projects to provide regulatory

flexibility that will result in

environmental protection that is

superior to that which would be

achieved through compliance with

current and future regulations. These

efforts are crucial to EPA’s ability to test

new strategies that reduce the regulatory

burden and promote economic growth

26552 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules

while achieving better environmental

and public health protection. EPA

intends to evaluate the results of this

and other XL projects to determine

which specific elements of the

project(s), if any, should be more

broadly applied to other regulated

entities for the benefit of both the

economy and the environment.

Under Project XL, participants in four

categories—facilities, industry sectors,

governmental agencies and

communities—are offered the flexibility

to develop common sense, cost-effective

strategies that will replace or modify

specific regulatory requirements on the

condition that they produce and

demonstrate superior environmental

performance. Project XLC, excellence

and leadership for communities, was

developed to focus on communities and

local governments or regional

organizations that are interested in

creating an XL project. Project XLC

encourages potential sponsors to come

forward with new approaches to

demonstrate community-designed and

directed strategies for achieving greater

environmental quality consistent with

community economic goals.

To participate in Project XLC,

applicants must develop alternative

pollution reduction strategies pursuant

to nine criteria: superior environmental

results; stakeholder involvement,

support, and capacity for community

participation; economic opportunity;

test of an innovative multi-media

strategy; transferability; feasibility;

community planning; identification of

monitoring, reporting and evaluation

methods; and equitable distribution of

environmental risks. Projects must have

full support of affected federal, state and

tribal agencies to be selected.

For more information about the XL

and XLC criteria, readers should refer to

the three descriptive documents

published in the Federal Register (60

FR 27282, May 23, 1995; 60 FR 55569,

November 1, 1995; and 62 FR 19872,

April 23, 1997). For further discussion

as to how the Steele County XL

Communities project addresses the XLC

criteria, readers should refer to the draft

Final Project Agreement and fact sheet

that are available from the docket for

this action (see ADDRESSES section of

today’s preamble).

Project XL is intended to allow the

EPA to experiment with untried,

potentially promising regulatory

approaches, both to assess whether they

provide benefits at the specific facility

affected, and whether they should be

considered for wider application. Such

pilot projects allow the EPA to proceed

more quickly than would be possible

when undertaking changes on a

nationwide basis. EPA may modify

rules, on a site- or state-specific basis,

that represent one of several possible

policy approaches within a more

general statutory directive, so long as

the alternative being used is permissible

under the statute. Adoption of such

alternative approaches or interpretations

in the context of a given XL project does

not, however, signal EPA’s willingness

to adopt that interpretation as a general

matter, or even in the context of other

XL projects. It would be inconsistent

with the forward-looking nature of these

pilot projects to adopt such innovative

approaches prematurely on a

widespread basis without first

determining whether or not they are

viable in practice and successful for the

particular projects that embody them.

Depending on the results in these

projects, EPA may or may not be willing

to consider adopting the alternative

approach or interpretation again, either

generally or for other specific facilities.

EPA believes that adopting alternative

policy approaches and/or

interpretations, on a limited, site- or

state-specific basis and in connection

with a carefully selected pilot project, is

consistent with the expectations of

Congress about EPA’s role in

implementing the environmental

statutes (so long as EPA acts within the

discretion allowed by the statute).

Congress’ recognition that there is a

need for experimentation and research,

as well as ongoing reevaluation of

environmental programs, is reflected in

a variety of statutory provisions, e.g.,

section 104 of the CWA.

B. Overview of the Steele County XLC

Project

1. Description of the Steele County

Community XL Project

Community Based Environmental

Regulation

The Steele County XLC pilot project

would test the effectiveness of a

community based approach to industrial

regulated wastewater effluent

reductions and water use reduction

controls designed to: (1) Result in

pollution prevention; (2) meet the

objectives of the CWA regulatory

program; and (3) be at least as protective

of human health and the environment as

the current system. This project would

pilot a community-based approach to

environmental regulation with the goal

of achieving a reduction in the

discharge of certain metals to the

OWWTF, and Biological Oxygen

Demand (BOD), Total Suspended Solids

(TSS) and Total Kjeldahl Nitrogen

(TKN) to the BPWWTF. Other aspects of

the pilot program would include water

usage reduction, the development and

implementation of a storm water and

sewer water separation and education

plan, and the development of a training

and assessment program of an

Environmental Management System.

If this first phase of the project is

considered by the parties to be

successful, a Phase II—consisting in

general outline of a multi-media

approach to environmental permitting

based on overall community

performance in the areas of air

emissions, solid waste, hazardous

waste, chemical storage, and community

sustainability—may be considered.

Today’s proposal does not cover or

commit to a second phase of this

project.

For the purposes of today’s proposed

rule, the group of Owatonna sponsors

who are Participating Industrial Users

includes the following Industrial Users

(IUs) in the City of Owatonna: Crown

Cork and Seal Company, Inc.; Cybex

International Inc.; Gandy Company,

Inc.; Josten’s Inc.—Southtown Facility;

Mustang Manufacturing Company; SPx

Corporation, Power Team Division; SPx

Corporation, Service Solutions Division;

Truth Hardware Corporation; and Uber

Tanning Company. The final rule may

include all or only some of the

Industrial Users listed above. Two

facilities included in the Owatonna

Sponsor group, Viracon-Marcon, Inc.

and the Wenger Corporation and one

sponsor located in Blooming Prairie,

Minnesota, Elf Atochem, are not

receiving regulatory flexibility under

today’s proposed rule and are therefore

not included as Participating Industrial

Users.

To achieve the objectives of Phase 1

of the Project, part of this project would

pilot an incentive-based approach to

reduced monitoring requirements. As

the Owatonna sponsors who are

Participating Industrial Users, as a

group meet certain discharge reduction

goals, the City could reduce the required

frequency of monitoring for any of the

Participating Industrial Users. Other

aspects of this pilot program would

include: (1) Pollutant monitoring could

be eliminated where a pollutant is not

discharged; (2) in order to encourage

water use reduction compliance with a

concentration-based standard could be

demonstrated by compliance with a

mass-based limit; (3) an alternative

publication process for Significant

Noncompliance (SNC) would be put in

place, and (4) sponsors may seek ‘‘No

Exposure Certification for Exclusion

from NPDES Storm Water Permitting’’,

which is available under existing

regulations (40 CFR 122.26 (g) pursuant

to a change in the regulations found at

Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules 26553

64 FR 68722 (December 8, 1999)), and

does not require flexibility under

today’s proposal. Each of these elements

of the pilot program requiring regulatory

flexibility is explained below.

To achieve the objectives of this

project the Participating Industrial Users

would commit to utilize their best

efforts to reach certain discharge

reduction goals. Only if these goals are

met would regulatory flexibility

regarding lesser monitoring

requirements than currently required

under 40 CFR 403.12(e)(1) be granted.

Specifically, the Participating Industrial

Users located in Owatonna (or ‘‘City’’)

would commit to a 20% reduction goal

in the amount of nickel, chromium,

copper, and zinc (by mass) they

discharge to the OWWTF. These

reduction goals are for each individual

pollutant.

If the first 20% reduction goal is met,

a further 20% reduction goal could be

set for the remaining project term. If the

initial 20% reduction goal is met for all

pollutants, the City would be

authorized, at its discretion, to reduce

the self-monitoring frequency of

Owatonna sponsors who are

Participating Industrial Users to once

per year. After the second metal

reduction goal is met, the minimum

monitoring frequency could remain

once per year. In exercising this

discretion, the OWWTF would be

required to consider the Participating

Industrial User’s previous three years of

compliance data, and could not reduce

monitoring for pollutants where there is

a reasonable potential of violating

Pretreatment Standards.

This project would focus on the four

metals slated for 20% release reductions

because they are the metals determined

to be discharged at the highest levels to

the Owatonna wastewater treatment

system relative to applicable water

quality and biosolids criteria. In

addition, the participants are regulated

for these pollutants under categorical

pretreatment standards and influence

the loading of these pollutants to the

Owatonna wastewater treatment system.

Specific reductions of other

categorically regulated metals are not

being pursued under this project

because they are released in small

quantities relative to applicable

environmental criteria. Because certain

of these other metals may be present at

some of the participant facilities, these

metals may not qualify for the

elimination of monitoring due to no

releases. In such cases, the POTW

would need to require continued

monitoring of these metals. Through

this proposed rule the POTW would be

given the discretion to reduce

monitoring frequencies for the other

categorically regulated metals to the

same extent it is being authorized to

consider reduced monitoring for the

four metals subject to the 20% reduction

goals.

This project would also authorize the

City to allow a sponsor Participating

Industrial User subject to categorical

standards to not sample for a pollutant,

if it is not expected to be present in its

wastestream at levels greater than

background levels in its water supply.

For such pollutants, the OWWTF would

only be required to conduct sampling

and analysis once during the term of the

Participating Industrial User’s permit.

The Participating Industrial User would

still be subject to the categorical

standards for pollutants determined not

to be present, and would need to resume

monitoring if sampling indicates that a

pollutant is present at abovebackground levels, or at any time at the

discretion of the OWWTF.

If the POTW determines that one or

more pollutants are not expected to be

present at a Participating Industrial

User, it could modify the IU’s permit to

reduce or eliminate the monitoring

requirements for the pollutant(s). The

Participating Industrial User permit

would also require the user to submit,

as part of its regular semi-annual

monitoring reports, certification that

there has been no increase in the

pollutant in its wastewater due to its

activities. The POTW would sample the

Participating Industrial User’s effluent

for all pollutants in the applicable

categorical standard at least once during

the term of the IU’s permit.

One of the goals of this pilot project

would be to facilitate water

conservation measures at the sponsors’

facilities. The total flow to the OWWTF

from the nine Owatonna sponsors who

are Participating Industrial Users is

477,000 gallons per day. The Owatonna

sponsors commit to a goal in the draft

FPA of reducing this flow by 10%. To

facilitate meeting this goal this rule

proposes that the OWWTF be allowed to

set equivalent mass limits as an

alternative to concentration limits to

meet concentration-based categorical

Pretreatment Standards. Under the

proposed rule entitled ‘‘Streamlining

the General Pretreatment Regulations for

Existing and New Sources of Pollution’’

(Pretreatment Streamlining Proposal),

which was published on July 22, 1999

(64 FR 39564), POTWs would be

allowed to establish alternative mass

limits if an Industrial User has installed

Best Available Technology

Economically Achievable (BAT), or

equivalent to BAT treatment, and the

Industrial User is employing water

conservation methods and technologies

that substantially reduce water use.

While all of the conditions for

receiving mass limits laid out in EPA’s

Streamlining Proposal are not being

required for this site-specific rule (see

discussion regarding Today’s Proposal

in Equivalent Mass Limits for

Concentration Limits section of III.A,

below), EPA is interested in determining

whether providing mass limits prior to

full adoption of water conservation

practices will encourage more

widespread adoption of such practices.

To ensure the continued

appropriateness of the specific mass

limits, sponsor industries who are

Participating Industrial Users would

also be required to notify the City in the

event production rates are expected to

vary by more than 20 percent from a

baseline production rate determined by

Owatonna when it establishes a

Participating Industrial User’s initial

mass limits. The Participating Industrial

Users would commit to continued

operation of at least the same level of

treatment as at the outset of the project.

Upon notification of a revised

production rate, the City would reassess

the appropriateness of the mass limit.

Sponsor Elf Atochem discharges 16,900

gallons per day to the BPWWTF and

commits in the draft FPA to a reduction

goal of 10% of this amount. Because Elf

Atochem is currently required to

comply with mass-based limits, no

change to its limits are required to

facilitate water conservation measures.

EPA is today proposing a site-specific

alternative procedure for publishing

Significant Noncompliance for

Participating Industrial Users. SNC is

defined in 40 CFR 403.8(f)(2)(vii) as

including violations by an Industrial

User which meet one or more of eight

specific criteria. Currently, POTWs are

required to publish in the largest daily

newspaper in the municipality in which

the POTW is located a list of Industrial

Users who have been in SNC at any time

during the previous twelve months. The

SNC publication requirement serves at

least two important functions: (1) A

deterrent effect on industrial users to

avoid noncompliance generally, and

SNC specifically; and (2) notice to the

public of Significant Noncompliance.

One result of this approach is that if the

POTW publishes the notice for a

particular SNC violation after the end of

the twelve month period, the

publication may not occur close in time

to the violation, resulting in a delay

between the violation and the notice to

the public.

The intent of the proposed alternative

procedure is to require website notice of

all SNC violations, and reserve

26554 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules

additional newspaper publication for

cases where this format is needed for its

potentially greater effect. The Sponsors

also intended to promote prompt and

appropriate assistance for identifying

and correcting violations through a

unique community-based approach.

Pursuant to the Steele County FPA, an

Owatonna Peer Review Committee

would be established. This Committee

would consist of at least two Owatonna

Sponsors not connected to the

noncompliance event being reviewed

and any stakeholders that wish to

participate. The Peer Review Committee

would investigate all instances of

noncompliance by an Owatonna

sponsor who is a Participating Industrial

User and provide recommendations and

assistance to expedite a return to

compliance. The Peer Review

Committee would make

recommendations to the City regarding

whether or not publication in a

newspaper should occur, in addition to

the website publication described

below.

All recommendations by the Peer

Review Committee would be nonbinding on the City, and the City would

continue to implement its Stateapproved Enforcement Response Plan.

Under the Steele County FPA, the

Sponsors would take steps to conduct

public outreach on the information

available regarding Significant and other

noncompliance by the Sponsors,

including a description of the Peer

Review Committee and its functions, a

Committee contact person and

telephone number, and notice of Peer

Review Committee meetings. Such

outreach would include, but not be

limited to, periodic (at least annual)

mailings to the identified Steele County

XL community stakeholders, and notice

in the public library.

Any violation which is not corrected

within thirty (30) calendar days or

which results in pass through or

interference would continue to be

published in a newspaper as currently

required in Part 403. All SNC violations,

whether published in a newspaper or

not, would be published as soon as is

practicable on the MPCA web site. The

website would contain an explanation

of how SNC is determined. A contact

name and phone number for

information regarding all other

violations would also be listed on the

MPCA website.

2. What Are the Environmental Benefits

of the Project?

This XLC project is expected to

achieve superior environmental

performance beyond that which is

achieved under the current CWA

regulatory system by encouraging the

sponsors to work together in a

coordinated manner to efficiently

reduce their discharges to the OWWTF.

As has been described, the Owatonna

sponsors who are Participating

Industrial Users have committed to 20%

discharge reduction goals for nickel,

chromium, copper, and zinc. Although

not receiving regulatory flexibility

under today’s proposal, Elf Atochem has

committed to analogous discharge

reduction goals for BOD, TSS, and TKN

to the BPWWTF. The Participating

Industrial Users have additionally

committed to a goal of at least a 10%

reduction in water usage.

Besides the direct environmental

benefits of these reductions, the

sponsors have agreed to conduct an

Environmental Management System

(EMS) assessment within eighteen

months of the effective date of the

project. In the first year of the project,

the Sponsors commit to arrange and

participate in training for the

development of the EMS. The Sponsors

will utilize the information from the

EMS assessment to reach the discharge

reduction goals as well as to examine

their facilities for other possible

environmental improvements. The

sponsors have agreed to report to the

EPA and the MPCA the results of the

assessment, and the suggestions which

have been adopted by each facility.

Additionally, the City has identified

storm water infiltration into the

collection system during wet weather

events as a major problem. The

Owatonna sponsors have agreed to work

with the City to help alleviate this

problem through the development of

educational materials which will be

distributed to sponsor employees as

well as to the community at large. The

Owatonna Sponsors have also

committed in the draft FPA to develop

a plan to minimize storm water

infiltration into the sewer system at

each participating facility.

One unique aspect of this pilot project

is the desire of the sponsor facilities to

work together to reach common goals. It

is hoped that this cooperation will go

beyond the specific goals of this project

and result in presently unforseen

environmental benefits.

3. What Are the Economic Benefits and

Paperwork Reduction Deriving From the

Project?

This XLC Project will encourage the

sponsors to reduce water consumption

at their facilities. This may result in

reduced water costs for the facilities,

without diminishing the level of

environmental protection. Assuming the

sponsors discharge lower levels of

pollutants to the OWWTF and the

BPWWTF, these POTWs may benefit

from lower treatment costs. To the

extent monitoring and reporting

frequencies are reduced under this

project, reduced expenditures may

result. The EMS assessments may

identify further environmental and

economic benefits.

4. Stakeholder Involvement

Stakeholder involvement and

participation is vital to the success of

the Steele County XLC project. The

participants have worked through a

Community Advisory Committee,

established by the Steele County Project

Sponsors, to ensure that the general

public has had an opportunity to be

involved throughout the development of

this project. The participants will

continue to work to foster full and open

communication between the general

public and the project sponsors.

In addition, the Peer Review

Committee will continue to provide

opportunities for input from the

community on important compliance

issues. For example, if a sponsor is in

noncompliance, the Peer Review

Committee would provide input to bring

the sponsor back into compliance.

Sponsors would continue outreach work

with all stakeholders using the strategies

and tactics contained in their Proposed

Stakeholder Involvement Plan (June

1999). MPCA, the Steele County

Sponsors, Owatonna, Blooming Prairie,

and EPA have been involved in the

development of this project, and

support it. From the beginning of the

Steele County XLC process, there has

been a high priority on providing

opportunity for diverse stakeholder

input and review. Public meetings were

held in the City of Owatonna on June 9,

September 23, and October 7, 1999.

5. What Is the Project Duration and

Completion Date?

As with all XL projects testing

alternative environmental protection

strategies, the term of the Steele County

Community XL project is one of limited

duration. The duration of the regulatory

relief provided by this rule is

anticipated to be five (5) years from

[PUBLICATION DATE OF FINAL

RULE] or until [DATE FIVE YEARS

FROM THE PUBLICATION DATE OF

FINAL RULE.] However, the project

may be terminated or suspended at any

time for failure to comply with any of

the requirements of the rule. If the

parties renew the Steele County

Community XL Final Project Agreement

beyond its initial five year period, then

it may be necessary to extend this siteVerDate 27<APR>2000 10:51 May 05, 2000 Jkt 190000 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\08MYP1.SGM pfrm08 PsN: 08MYP1
Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules 26555

specific rule for an additional period of

time.

6. How Will EPA Ensure That Only

Appropriate Sponsors Continue To

Receive Flexibility Under This

Proposal?

If EPA determines that it is

appropriate to terminate one or more

Sponsors, who are Participating

Industrial Users, participation in this

Project so that they will no longer be

eligible to receive the regulatory

flexibility provided in today’s proposed

rule, EPA will coordinate with the

POTW and State to make the necessary

changes to the Participating Industrial

User’s permit. EPA retains its

enforcement authority under the CWA

to enforce Pretreatment Standards

whether or not the POTW or State make

such changes to the Participating

Industrial User’s permit.

7. How May the Project Be Terminated?

When the State modifies Owatonna’s

NPDES permit to incorporate the

flexibility in today’s rule, it will include

a reopener provision enabling the State

to eliminate this flexibility. This

reopener provision would be utilized if

the Project is terminated. In the event of

early project termination, EPA will

eliminate the provisions of proposed

section 403.19 in advance of its [DATE

FIVE YEARS FROM PUBLICATION

DATE OF FINAL RULE] expiration date.

III. Rule Description

A. Clean Water Act Requirements,

Pretreatment Streamlining Proposal and

Summary of Regulatory Requirements

for the Steele County XL Project

Equivalent Mass Limits for

Concentration Limits (40 CFR 403.19(b))

1. Existing Requirements (40 CFR

403.6(c)). National categorical

Pretreatment Standards establish limits

on pollutants discharged to POTWs by

facilities in specific industrial

categories. The standards establish

pollutant limitations in different ways

for different categories. EPA has

established categorical Pretreatment

Standards that are: (1) Concentrationbased standards that are implemented

directly as concentration limits; (2) mass

limits based on production rates; (3)

both concentration-based and

production-based limits; and (4) mass

limits based on a concentration standard

multiplied by a facility’s process

wastewater flow. The current

regulations do not allow a mass limit to

substitute for a concentration limit

when the applicable standard is

expressed in terms of concentration.

While 40 CFR 403.6(d) allows the

Control Authority to develop equivalent

mass limits for concentration-based

standards in order to prevent dilution,

the equivalent limit applies in addition

to the concentration limit. Today’s rule

would allow a Participating Industrial

User who qualifies for flexibility under

the rule to demonstrate compliance with

the categorical Pretreatment Standard by

demonstrating compliance with an

equivalent mass-based limit alone.

2. The Pretreatment Streamlining

Proposal. In its proposed rule entitled

Streamlining the General Pretreatment

Regulations for Existing and New

Sources of Pollution (64 FR 39564, July

22, 1999) (Pretreatment Streamlining

Proposal), EPA proposed to allow

Control Authorities to set equivalent

mass limits as an alternative to

concentration limits to meet

concentration-based categorical

Pretreatment Standards in cases where

an industrial user has installed model

treatment technology or a treatment

technology that yields optimum removal

efficiencies, and the Industrial User is

employing water conservation methods

and technologies that substantially

reduce water use. The Agency, however,

solicited comments on whether mass

limits would be appropriate in other

situations. EPA proposed that 40 CFR

403.6(c) be revised to clarify that

equivalent mass limits may be

authorized by the Control Authority in

lieu of promulgated concentration-based

limits for industrial users. The Control

Authority would be required to

document how the mass limits were

derived and make this information

publicly available.

The July 22, 1999, proposed rule also

specifically referenced the Steele

County XL Community Project and

indicated that, if this project was ready

to proceed before EPA finalized the

complete Pretreatment Streamlining

proposal, EPA may promulgate, based

on that proposal and comments

received, a separate site-specific rule to

allow the industries involved in the

Steele County XLC project to use, at the

discretion of the Control Authority, the

change proposed for 40 CFR 403.6(c).

3. Today’s Proposal. To facilitate

water use reduction by industries

involved in the Steele County XLC

Project, EPA is proposing to allow the

City of Owatonna, which is the Control

Authority for the Owatonna sponsor

industries, the Participating Industrial

Users, to set equivalent mass limits as

an alternative to concentration limits to

meet concentration-based categorical

Pretreatment Standards. Mass limits

would be established by multiplying the

five year, long term average process

flows of the sponsors (or a shorter

period if production has significantly

increased or decreased during the five

year period) by the concentration-based

categorical standards. In general, flows

used to establish mass-based limits must

be appropriate in relation to current

production or known future production,

and will be determined based on

consultation between the industry and

the City of Owatonna. EPA’s Guidance

Manual for the Use of Production-Based

Standards and the Combined

Wastestream Formula (September 1985)

provides additional guidance on

establishing appropriate long-term

average flows. In return for this

flexibility, the sponsor industries, the

Participating Industrial Users, are

committing as a group to reduce water

usage by 10 percent over the initial five

year project period. In this site-specific

rule EPA is not conditioning the

availability of mass-based limits on the

use of water conservation methods and

technologies as it would in the

Pretreatment Streamlining Rule. EPA is

interested in determining whether

providing mass limits prior to full

adoption of water conservation practices

will encourage more widespread

adoption of such practices pursuant to

the commitment described above.

In addition, this rule would not

require that Participating Industrial

Users utilize model treatment

technologies that serve as the basis for

the applicable Pretreatment Standards.

Instead, EPA is interested in

determining whether or not it would be

sufficient to prevent facilities from

complying with the applicable

Standards, in the event of production

decreases, by requiring that the facility

maintain at least the same level of

treatment as at the time an equivalent

mass limit is established. To ensure the

continued appropriateness of the

specific mass limits, the Participating

Industrial Users would also be required

to notify the City in the event

production rates are expected to vary by

more than 20 percent from the previous

year’s average. Upon notification, the

City will reassess the appropriateness of

the mass limit.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF,

and the City will need to revise IU

permits issued to Participating

Industrial Users to enable it to establish

alternative mass limits. The City will

also need to evaluate its sewer use

ordinance to determine if revisions are

necessary to implement the changes

proposed today.

26556 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules

Sampling for Pollutants Not Present (40

CFR 403.19(c))

1. Existing Requirements (40 CFR

403.12(e), 403.8(f)(2)(v)). Currently, 40

CFR 403.12(e)(1) requires industrial

users subject to categorical Pretreatment

Standards to submit reports to the

Control Authority at least twice a year,

indicating the nature and concentration

of all pollutants in their effluent that are

limited by the standards. 40 CFR

403.8(f)(2)(v) requires Control

Authorities to sample these industrial

users at least annually. Sampling is

currently required for all pollutants

limited by a categorical Pretreatment

Standard even if certain pollutants

regulated by the standard are not

reasonably expected to be present.

2. The Pretreatment Streamlining

Proposal. The July 22, 1999

Pretreatment Streamlining proposal

would authorize a Control Authority to

allow an industrial user subject to

categorical Pretreatment Standards to

not sample for a pollutant if the

pollutant is not expected to be present

in its wastestream in a quantity greater

than the background level present in its

water supply, with no increase in the

pollutant due to the regulated process.

The Agency also proposed a reduced

sampling requirement for the Control

Authority, to once per permit term, once

it had determined that a pollutant was

not expected to be present.

The Pretreatment Streamlining

proposal would require the Control

Authority’s decision to waive sampling

to be based upon both sampling and

other technical data, such as the raw

materials, industrial processes, and

potential by-products. EPA did not

propose that a specific amount of

sampling data be required but solicited

comment on that issue.

3. Today’s Proposal. For purposes of

this project, and as specified in

Attachment C of the FPA, the City

would be authorized to allow a sponsor

Participating Industrial User subject to

categorical standards to reduce the

required sampling to less than twice per

year, or to not sample for a pollutant, if

it is not expected to be present in its

wastestream at levels greater than

background levels in its water supply,

with no increase in the pollutant due to

the regulated process. For such

pollutants, the POTW would only be

required to conduct sampling and

analysis once during the term of the

Participating Industrial User’s permit.

The Participating Industrial User would

still be subject to the categorical

standards for pollutants determined not

to be present, and would be in violation

of the limit and would need to resume

the required sampling if existing

sampling indicates the user has violated

the limit.

Consistent with the Streamlining

Proposal, for purposes of this project,

determinations by the City of Owatonna

to either waive or reduce Participating

Industrial User sampling to less than

twice per year would be based on both

sampling and other technical data, such

as raw material usage, industrial

processes, and potential by-products.

Existing data on pollutant

concentrations of the local public water

supply will be used to characterize

background concentrations; where a

Participating Industrial User uses an

alternative water supply, representative

influent sampling would need to be

provided. At least three years of

Participating Industrial User effluent

data would then be compared to the

background data in making the

determination that a given pollutant is

not expected to be present. In addition,

the city would need to make its

determination based on its knowledge of

the raw materials used and the facility’s

processes and potential by-products, but

would not consider capability and

efficiency of the user’s pretreatment

system. Where it believes it is necessary

to make a determination, the City may

require a Participating Industrial User to

provide representative data on its

untreated effluent.

Once the POTW determines that one

or more pollutants are not expected to

be present at a Participating Industrial

User, it may modify the Participating

Industrial User’s permit to reduce or

eliminate the monitoring requirements

for the pollutant(s). The IU permit

would also require the Participating

Industrial User to submit, as part of its

regular semi-annual monitoring reports,

certification that there has been no

increase in the pollutant in its

wastewater due to its activities. The

POTW would sample the Participating

Industrial User for all pollutants in the

applicable categorical standard at least

once during the term of the Participating

Industrial User’s permit.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF,

and the City will need to revise

Participating Industrial User permits

issued to Sponsor facilities to enable it

to eliminate monitoring for pollutants

not present. The City will also need to

evaluate its sewer use ordinance to

determine if revisions are necessary to

implement the changes proposed today.

Monitoring Frequency Reductions (40

CFR 403.19(e))

1. Existing Requirements (40 CFR

403.12(e)). As discussed above, 40 CFR

403.12(e)(1) currently requires

industrial users subject to categorical

Pretreatment Standards to submit

reports to the Control Authority twice a

year, or more frequently if required by

the Pretreatment Standard or the

Control Authority, indicating the nature

and concentration of all pollutants in

their effluent that are limited by the

standards. The City of Owatonna

generally requires its significant IUs to

monitor and report on a quarterly basis.

2. Today’s Proposal. Upon initiation

of this project, the City would evaluate

the recent performance of sponsor

Participating Industrial Users, and could

reduce monitoring requirements to

twice per year for facilities with

satisfactory compliance records. After

the first metal reduction goal of 20% is

met, the City would be authorized, at its

discretion, to reduce the self-monitoring

frequency of Participating Industrial

Users for any regulated pollutant to

once per year. EPA believes that this

mechanism will provide an incentive

for Participating Industrial Users to

reduce their contribution of the

specified metals. In exercising this

discretion, the OWWTF would be

required to consider the Participating

Industrial User’s previous three years of

compliance data, and would not reduce

monitoring for pollutants where there is

a reasonable potential of violating

Pretreatment Standards.

If one or more of the Industrial Users

in the City of Owatonna, (Crown Cork

and Seal Company, Inc.; Cybex

International Inc.; Gandy Company,

Inc.; Josten’s Inc.—Southtown Facility;

Mustang Manufacturing Company; SPx

Corporation, Power Team Division; SPx

Corporation, Service Solutions Division;

Truth Hardware Corporation; and Uber

Tanning Company), does not become a

Participating Industrial User, the

loading values specified in today’s

proposed rule would be adjusted in the

final rule based on a 20 percent

reduction from the baseline loadings

from the final group of Owatonna

Participating Industrial Users.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF,

and the City will need to revise

Participating Industrial User permits

issued to Sponsor facilities to reduce

monitoring frequencies for regulated

pollutants. The City will also need to

evaluate its sewer use ordinance to

determine if revisions are necessary to

implement the changes proposed today.

Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules 26557

Significant Noncompliance Criteria (40

CFR 403.19(f))

1. Existing Requirements (40 CFR

403.8(f)(2)(vii)). ‘‘Significant

Noncompliance’’ (SNC) is defined in 40

CFR 403.8(f)(2)(vii) to include violations

that meet one or more of eight criteria.

The criteria are: (1) Chronic violations

of discharge limits (where 66 percent of

all measurements taken during a sixmonth period exceed the daily

maximum limit or the average limit for

the same pollutant parameter); (2)

technical review criteria (TRC)

violations (where 33 percent or more of

all measurements for each pollutant

parameter taken during a six-month

period equal or exceed the product of

the daily maximum limit or the average

limit multiplied by the applicable TRC

(TRC equals 1.4 for BOD, TSS, fats, oil

and grease and 1.2 for all other

pollutants except pH)); (3) any other

violation of a pretreatment effluent limit

that the Control Authority determines

has caused, alone or in combination

with other discharges, interference or

pass through; (4) any discharge of a

pollutant that has caused imminent

endangerment to human health, welfare

or to the environment or has resulted in

the POTW’s exercise of its emergency

authority to halt or prevent such a

discharge; (5) failure to meet, within 90

days after the schedule date, a

compliance schedule milestone

contained in a local control mechanism

or enforcement order for certain

activities; (6) failure to provide required

reports within 30 days after the due

date; (7) failure to accurately report

Noncompliance; and (8) any other

violation or group of violations which

the Control Authority determines will

adversely affect the operation or

implementation of the local

Pretreatment Program.

On July 24, 1990, EPA modified 40

CFR 403.8(f)(2)(vii) to include the

existing definition of SNC (55 FR

30082). The purpose of this

modification was to provide some

certainty and consistency among

POTWs for publishing their lists of

industrial users in Noncompliance.

Under this provision, POTWs are

required to annually publish a list of

industrial users in SNC at any time

during the previous twelve months. The

POTW must publish this list in the

largest daily newspaper published in

the municipality in which the POTW is

located. Independent of this publication

requirement, POTWs are required to

develop and implement Enforcement

Response Plans, which describe the

range of enforcement responses they

will use in addressing various types of

IU Noncompliance. Where an IU is

identified as being in SNC, EPA

guidance recommends that the POTW

respond with some type of formal

enforcement action such as an

enforceable order (‘‘Guidance For

Developing Control Authority

Enforcement Response Plans,’’ EPA

832–B–89–102, September 1989).

2. The Streamlining Proposal. EPA

did not propose to amend the entire

provision on SNC, or even seek

comment on all of it. Instead, the

Agency proposed limited changes and

sought comment on a number of options

for a few specific provisions. With

respect to publication, the primary

purposes of which are to notify the

public of violations and provide a

disincentive for violating, EPA proposed

to amend 40 CFR 403.8(f)(2)(vii) to

allow publication of the SNC list in any

paper of general circulation within the

jurisdiction served by the POTW that

provides meaningful public notice. EPA

also proposed to amend the SNC criteria

so that they must only be applied to

significant industrial users, and to

address more than just daily maximum

and monthly average limits. The Agency

also sought comments on whether to

revise the Technical Review Criteria,

whether to revise the SNC criteria for

late reports, and whether to codify the

rolling quarters approach to determining

SNC or adopt some other approach.

3. Today’s Proposal. Under today’s

proposed site-specific rule, the City

would have the discretion to not

publish certain instances of SNC by

sponsor Participating Industrial Users in

a newspaper. EPA believes that this

change would provide faster public

notice of SNC and would reserve

additional newspaper publication of

SNC for cases where this format is

needed for its potentially greater effect.

The City would continue to be required

to provide newspaper publication of any

violation which is not corrected within

thirty (30) calendar days, or which

results in pass through or interference.

All SNC violations, whether published

in a newspaper or not would be

published as soon as is practicable, on

the MPCA web site. The web site would

contain an explanation of how SNC is

determined, as well as a contact name

and phone number for information

regarding all other violations. The

Owatonna Peer Review Committee

system contemplated in the Steele

County FPA will not be specified

expressly in the rule, but rather is a

voluntary agreement on the part of the

Sponsors.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF.

The City will also need to evaluate its

sewer use ordinance to determine if

revisions are necessary to implement

the changes proposed today.

IV. Additional Information

A. How Does This Rule Comply With

Executive Order 12866?

Under Executive Order 12866 (58 FR

51735, October 4, 1993) EPA must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety in

State, local, or tribal governments or

communities; (2) create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; (3) materially alter the

budgetary impact of entitlement, grants,

user fees, or loan programs of the rights

and obligations of recipients thereof; or

(4) raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Because the annualized cost of this

proposed rule would be significantly

less than $100 million and would not

meet any of the other criteria specified

in the Executive Order and because this

proposed rule affects only nine specific

private sector facilities and a single

Publically-Owned Treatment Works

(POTW), it is not a rule of general

applicability or a ‘‘significant regulatory

action’’ and therefore not subject to

OMB review and Executive Order

12866. Further today’s proposed rule

does not affect the POTW or the

facilities unless they choose on a

voluntary basis to participate in the XL

project. Finally, OMB has agreed that

review of site specific rules under

Project XL is not necessary.

Executive Order 12866 also

encourages agencies to provide a

meaningful public comment period, and

suggests that in most cases the comment

period should be 60 days. However, for

today’s action, EPA has chosen a shorter

comment period of 21 days. Today’s

proposed rule affects a total of nine

Industrial Users and one publicallyowned wastewater treatment facility.

These entities were involved in the

development of the draft Final Project

Agreement which was made available

for public comment on December 29,

26558 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules

1999 (64 FR 73047). Additional

stakeholder involvement activities have

been described in the Stakeholder

Involvement discussion of this

preamble. In conclusion, considering

the very limited, site-specific scope of

today’s rulemaking and the considerable

public involvement in the development

of the draft FPA, the EPA considers 21

days to be sufficient in providing a

meaningful public comment period for

today’s action.

B. Is a Regulatory Flexibility Analysis

Required?

Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA), 5 U.S.C. 601 et. seq.

The RFA generally requires an agency

to prepare a regulatory flexibility

analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Under section 605(b) of the RFA,

however, if the head of an agency

certifies that a rule will not have a

significant economic impact on a

substantial number of small entities, the

statute does not require the agency to

prepare a regulatory flexibility analysis.

Pursuant to section 605(b), the

Administrator certifies that this

proposal, if promulgated, will not have

a significant economic impact on a

substantial number of small entities for

the reasons explained below.

Consequently, EPA has not prepared a

regulatory flexibility analysis.

Small entities include small

businesses, small organizations and

small governmental jurisdictions. For

purposes of assessing the impacts of

today’s proposed 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-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.

Today’s proposed rule amends EPA’s

General Pretreatment Regulations to

modify on a site-specific basis the

requirements for POTW pretreatment

programs. The rule authorizes the

Owatonna, Minnesota Waste Water

Treatment Facility, in its discretion, to

reduce the required frequency of

monitoring for its industrial users. Only

one POTW is subject to this rule and

grant of the relief authorized by the rule

would reduce costs to the Owatonna

Wastewater Treatment Facility’s

industrial users, including any

industrial user that is a small business.

Under these circumstances, EPA has

concluded that the rule will not have a

significant economic impact on a

substantial number of small entities.

C. Is an Information Collection Request

Required for This Rule Under the

Paperwork Reduction Act?

This action applies to nine companies

and a single POTW and therefore

requires no information collection

activities subject to the Paperwork

Reduction Act, and therefore no

Information Collection Request (ICR)

will be submitted to the Office of

Management and Budget (OMB) for

review in compliance with the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq.

D. Does This Rule Trigger the

Requirements of the Unfunded

Mandates Reform Act?

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective 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 why the alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

As noted above, this proposed rule is

limited to the OWWTF and certain

sponsoring industries. This proposed

rule would create no federal mandate

because EPA is imposing no new

enforceable duties. EPA has also

determined that this proposed rule does

not contain a Federal mandate that may

result in expenditures of $100 million or

more for State, local, and tribal

governments, in the aggregate, or the

private sector in any one year. Thus,

today’s proposed rule is not subject to

the requirements of sections 202 and

205 of the UMRA. Nevertheless, in

developing this proposed rule, EPA

worked closely with MPCA and the

OWWTF and received meaningful and

timely input in the development of this

proposed rule.

E. How Does This Rule Comply With

Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks?

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) Is determined to be ‘‘economically

significant,’’ as defined under Executive

Order 12866; and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

The EPA interprets Executive Order

13045 as applying only to those

regulatory actions that are based on

health or safety risks, such that the

analysis required under section 5–501 of

the Order has the potential to influence

the regulation. This proposed action is

not subject to Executive Order 13045

because it is not economically

significant as defined in Executive

Order 12866. The proposed rule does

not impose any new or amended

standards for discharged wastewater

resulting from treatment by a POTW.

With respect to the effects on children,

the collection, treatment and disposal of

wastewater occurs in a restricted system

(e.g., buried sewer lines and fenced

Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules 26559

wastewater treatment plants) that

children are unlikely to come in contact

with on a routine basis. The proposed

rule has no identifiable direct impact

upon the health and/or safety risks to

children and adoption of the proposed

regulatory changes would not

disproportionately affect children. The

proposed rulemaking is thus in

compliance with the intent and

requirements of the Executive Order.

F. How Does This Rule Comply With

Executive Order 13132 on Federalism?

Executive Order 13132, entitled

‘‘Federalism’’ (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under Section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This proposed rule does not have

federalism implications. It will not have

substantial direct effects on the States,

on the relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. The

requirements outlined in today’s

proposed rule will not take effect unless

Minnesota chooses to adopt equivalent

requirements through revisions to

Owatonna’s NPDES permit and

Owatonna chooses to take the steps to

implement the proposed rule and make

revisions to any local law and industrial

user permits. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule. Although section 6 of

Executive Order 13132 does not apply

to this rule, EPA did fully coordinate

and consult with State and local

officials in developing this rule.

G. How Does This Rule Comply with

Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments?

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal governments

or EPA consults with those

governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation.

In addition, Executive Order 13084

requires EPA to develop an effective

process permitting elected and other

representatives of Indian tribal

governments ‘‘to provide meaningful

and timely input in the development of

regulatory policies on matters that

significantly or uniquely affect their

communities’’. Today’s proposed rule

does not significantly or uniquely affect

the communities of Indian tribal

governments. There are no communities

of Indian tribal governments located in

the vicinity of Steele County.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

H. Does This Rule Comply With

National Technology Transfer and

Advancement Act of 1995 ‘‘NTTAA’’)?

Section 12(d) of NTTAA, Public Law

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standards bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary standards. This proposed

rulemaking sets equivalent means of

expressing the same technical

standards, and of determining

compliance with those standards. It also

uses voluntary goals to achieve

pollutant reductions beyond those

required by the technical standards.

Therefore, EPA is not considering the

use of any voluntary consensus

standards.

List of Subjects in 40 CFR Part 403

Environmental protection,

Confidential business information,

Reporting and recordkeeping

requirements, Waste treatment and

disposal, Water pollution control.

Dated: May 3, 2000.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, part 403, title 40, chapter I of

the Code of Federal Regulations is

proposed to be amended as follows:

PART 403—GENERAL

PRETREATMENT REGULATIONS FOR

EXISTING AND NEW SOURCES OF

POLLUTION

1. The authority citation for part 403

continues to read as follows:

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

2. Section 403.19 is added to read as

follows:

§ 403.19 Provisions of specific

applicability to the Owatonna Waste Water

Treatment Facility.

(a) For the purposes of this section,

the term ‘‘Participating Industrial

Users’’ includes the following Industrial

Users in the City of Owatonna,

Minnesota: Crown Cork and Seal

Company, Inc.; Cybex International Inc.;

Gandy Company, Inc.; Josten’s Inc.—

Southtown Facility; Mustang

Manufacturing Company; SPx

Corporation, Power Team Division; SPx

Corporation, Service Solutions Division;

Truth Hardware Corporation; and Uber

Tanning Company.

(b) For a Participating Industrial User

discharging to the Owatonna Waste

Water Treatment Facility in Owatonna,

Minnesota, when a categorical

Pretreatment Standard is expressed in

terms of pollutant concentration the

City of Owatonna may convert the limit

to a mass limit by multiplying the fiveyear, long-term average process flows of

the Participating Industrial User (or a

shorter period if production has

significantly increased or decreased

during the five year period) by the

concentration-based categorical

standard. Participating Industrial Users

must notify the City in the event

production rates are expected to vary by

26560 Federal Register / Vol. 65, No. 89 / Monday, May 8, 2000 / Proposed Rules

more than 20 percent from a baseline

production rate determined by

Owatonna when it establishes a

Participating Industrial User’s initial

mass limit. To remain eligible to receive

equivalent mass limits the Participating

Industrial User must maintain at least

the same level of treatment as at the

time the equivalent mass limit is

established. Upon notification of a

revised production rate from a

Participating Industrial User, the City

will reassess the appropriateness of the

mass limit. Owatonna shall reestablish

the concentration-based limit if a

Participating Industrial User does not

maintain at least the same level of

treatment as when the equivalent mass

limit was established.

(c) If a categorical Participating

Industrial User of the Owatonna Waste

Water Treatment Facility has

demonstrated through sampling and

other technical factors, including a

comparison of three years of effluent

data with background data, that

pollutants regulated through categorical

Pretreatment Standards, other than 40

CFR part 414, are not expected to be

present in quantities greater than the

background influent concentration to

the industrial process, the City of

Owatonna may reduce the sampling

frequency specified in § 403.8(f)(2)(v) to

once during the term of the categorical

Participating Industrial User’s permit.

(d) If a Participating Industrial User is

discharging to the Owatonna Waste

Water Treatment Facility in Owatonna,

Minnesota and is subject to a categorical

Pretreatment Standard other than one

codified at 40 CFR part 414, the City of

Owatonna may authorize the

Participating Industrial User to forego

sampling of a pollutant if the

Participating Industrial User has

demonstrated through sampling and

other technical factors, including a

comparison of three years of effluent

data with background data, that the

pollutant is not expected to be present

in quantities greater than the

background influent concentration to

the industrial process, and the

Participating Industrial User certifies on

each report, with the following

statement, that there has been no

increase in the pollutant in its

wastestream due to activities of the

Participating Industrial User. The

following statement is to be included as

a comment to the periodic reports

required by § 403.12(e):

Based on my inquiry of the person or

persons directly responsible for managing

compliance with the pretreatment standard

for 40 CFR ll, I certify that, to the best of

my knowledge and belief, the raw materials,

industrial processes, and potential byproducts have not contributed this pollutant

to the wastewaters since filing of the last

periodic report under 40 CFR 403.12(e).

(e) If the average daily loading from

the Participating Industrial Users to the

Owatonna Waste Water Treatment

Facility is equal to or less than .69

pounds per day of chromium, .28

pounds per day of copper, 1.18 pounds

per day of nickel, and 1.11 pounds per

day of zinc, Owatonna may authorize a

categorical Participating Industrial User

to satisfy the reporting requirements of

§ 403.12(e) with an annual report

provided on a date specified by

Owatonna, provided that the

Participating Industrial User has no

reasonable potential to violate a

Pretreatment Standard for any pollutant

for which reduced monitoring is being

allowed, and has not been in Significant

Noncompliance within the previous

three years.

(f) The Owatonna Waste Water

Treatment Facility in Owatonna,

Minnesota shall post public notice of all

Significant Noncompliance subject to

the publication requirement in

§ 403.8(f)(2)(vii) at the Minnesota

Pollution Control Agency website for a

period of one year, as soon as

practicable upon identifying the

violations. In addition, the Owatonna

Waste Water Treatment Facility shall

post an explanation of how Significant

Noncompliance is determined, and a

contact name and phone number for

information regarding other, nonSignificant Noncompliance violations. If

a violation is not corrected within thirty

(30) calendar days or results in pass

through or interference at the Owatonna

Waste Water Treatment Facility,

publication must also be made in the

format specified in § 403.8(f)(2)(vii).

(g) The provisions of this section shall

expire on [DATE FIVE YEARS FROM

PUBLICATION DATE OF FINAL RULE].

[FR Doc. 00–11433 Filed 5–5–00; 8:45 am]

BILLING CODE 6560–50–P