59738 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

Great Lakes System in the State of New

York. For purposes of this paragraph,

chronic water quality criteria and values

for the protection of aquatic life adopted

or developed pursuant to § 132.4(a)

through (c) are the criteria and values

adopted or developed by New York

State Department of Environmental

Conservation (see section 703.5 of Title

6 of the New York State Codes, Rules

and Regulations) and approved by EPA

under section 303(c) of the Clean Water

Act.

(e) Effective November 6, 2000, the

criteria for mercury contained in Table

4 of this Part shall apply to waters

within the Great Lakes System in the

State of New York.

[FR Doc. 00–25747 Filed 10–5–00; 8:45 am]

BILLING CODE 6560–50–U

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 403

[FRL–6882–9]

Community XL (XLC) Site-Specific

Rulemaking for Steele County, MN

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The Environmental Protection

Agency (EPA) will implement a project

under the Project XLC program for

certain facilities in Steele County,

Minnesota. The terms of the project are

defined in a Final Project Agreement

(FPA) which was made available for

public review and comment through a

Federal Register notice on December 29,

1999 (64 FR 73047) and signed on May

31, 2000. In addition, EPA is

promulgating a site-specific rule,

applicable only to the Steele County

Sponsors who are Participating

Industrial Users, to facilitate

implementation of the project. This sitespecific rule provides regulatory

changes under the Clean Water Act

(CWA or the Act) to implement the

Community XL project, which will

result in superior environmental

performance. The site-specific rule

changes some of the requirements

which apply to the Sponsors who are

Participating Industrial Users to

promote a reduction in the discharge of

four priority metals, a reduction in

water usage, and the development of an

Environmental Management System. An

incentive-based monitoring approach

will be implemented, such that as

discharge reduction goals are met,

monitoring frequency may be reduced,

mass-based limits will replace certain

concentration limits, and an alternative

Significant Noncompliance (SNC)

publication approach will be tested.

Monitoring reductions for pollutants

determined not to be present in an

industry’s wastestream will also be

authorized.

DATES: This final rule is effective

October 6, 2000. For judicial review

purposes, this rule is promulgated as of

1 p.m. (Eastern Daylight Time) on

October 6, 2000.

ADDRESSES: A docket containing the

rule, Final Project Agreement, and

supporting materials is available for

public inspection and copying at U.S.

EPA, Region V, Water Division, Room

Number 15046, 77 West Jackson

Boulevard, Chicago, IL 60604–3507. The

Office is open from 9 a.m. to 4 p.m.

Monday through Friday, excluding

federal holidays. The public is

encouraged to phone in advance to

review docket materials. Appointments

can be scheduled by phoning Abeer

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

Docket for the Steele County 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 on the World Wide Web at:

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

Supporting materials are also

available for inspection and copying at

U.S. EPA, Headquarters, 401 M Street,

SW., Room 445, West Tower,

Washington, DC 20460 during normal

business hours. Persons wishing to view

the materials at the Washington, DC

location are encouraged to contact Ms.

Kristina Heinemann in advance by

telephoning (202) 260–5355. In addition

supporting materials are available at the

Owatonna, MN Public Library, 105 Elm

Avenue, North, Owatonna, MN 55060.

The phone number for the library is

507–444–2460, TDD 507–444–2480.

FOR FURTHER INFORMATION CONTACT: Ms.

Abeer Hashem or Mr. Matthew

Gluckman, U.S. Environmental

Protection Agency, Region V, Water

Division, WC–15J or WN–16J, 77 West

Jackson Boulevard, Chicago, IL 60604–

3507. Ms. Hashem can be reached at

(312) 886–1331 and Mr. Gluckman can

be reached at (312) 886–6089. Further

information on today’s action may also

be obtained on the world wide web at:

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

SUPPLEMENTARY INFORMATION: On May 8,

2000, the Environmental Protection

Agency proposed a site-specific rule (65

FR 26550) that set forth the mechanism

through which the Sponsors will

attempt to reach discharge reduction

goals for chromium, copper, nickel, and

zinc; reach water use reduction goals;

and commit to arrange and participate

in training for the development of an

Environmental Management System

(EMS), as outlined in the Steele County

Project XLC FPA (the document that

embodies the parties’ intent to

implement this project). Today’s final

rule promulgates regulations that are

identical to the proposed rule and that

include the final group of Participating

Industrial Users among those named in

the May 8, 2000 proposal. Today’s rule

will facilitate implementation of the

FPA that has been developed by the

Steele County Project Sponsors, EPA,

the Steele County Community Advisory

Committee (CAC), the Minnesota

Pollution Control Agency (MPCA), the

Owatonna Waste Water Treatment

Facility (OWWTF), the Blooming Prairie

Waste Water Treatment Facility

(BPWWTF), and other stakeholders. The

FPA is available in the docket for

today’s action and on the world wide

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

The FPA addresses the nine Project XLC

criteria, and the expectation of EPA that

this XLC project will meet those criteria.

Those criteria are: (1) Environmental

results superior to what would be

achieved through compliance with

current and reasonably anticipated

future regulations; (2) economic

opportunity; (3) stakeholder

involvement, support and capacity for

community participation; (4) test of

innovative, multi-media, pollution

prevention strategies for achieving

environmental results; (5) approaches

that could be evaluated for future

broader application (transferability); (6)

technical and administrative feasibility;

(7) mechanisms for monitoring,

reporting, and evaluation; (8)

consistency with Executive Order 12898

on Environmental Justice (avoidance of

shifting of risk burden); and (9)

community planning. The FPA

specifically addresses the manner in

which the project is expected to

produce superior environmental

benefits.

Today’s rule will implement the

provisions of this Project XLC initiative

that require regulatory changes.

However, Minnesota has had an

approved State National Pollutant

Discharge Elimination System (NPDES)

program since June 30, 1974, and an

approved State pretreatment program

since July 16, 1979. Therefore, the

requirements outlined in today’s rule

will not take effect until Minnesota

revises the Owatonna pretreatment

program as incorporated in the

Owatonna NPDES permit. EPA will not

be the primary regulatory agency

responsible for implementing the

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59739

requirements of this rule. In addition,

for the sake of simplicity, the remainder

of this preamble refers to the effects of

this rule, although it will be the

corresponding State and local law and

corresponding NPDES and Industrial

User permits by which the remaining

implementation of this XL project will

be achieved.

Outline of Today’s Document

The information presented in this

preamble is organized as follows:

I. Authority

II. Background

A. Overview of Project XL and XLC

B. Overview of the Steele County XLC Project

1. Description of the Steele County

Community XL Project

2. What Are the Environmental Benefits of

the Project?

3. What are the Economic Benefits and

Paperwork Reduction Deriving from the

Project?

4. Stakeholder Involvement

5. What is the Project Duration and

Completion Date?

6. How Will EPA Ensure That Only

Appropriate Sponsors Continue To

Receive Flexibility Under This Rule?

7. How May the Project be Terminated?

III. Rule Description

A. Clean Water Act Requirements,

Pretreatment Streamlining Proposal and

Summary of Regulatory Requirements for

the Steele County XL Project

B. Changes to the Proposed Rule

IV. Response to Significant Public Comments

V. What Is the Effective Date of this Rule?

VI. Additional Information

A. How Does This Rule Comply with

Executive Order 12866?

B. Is a Regulatory Flexibility Analysis

Required?

C. Is EPA Required to Submit a Rule Report

Under the Congressional Review Act?

D. Is an Information Collection Request

Required for This Rule Under the

Paperwork Reduction Act?

E. Does This Rule Trigger the Requirements

of the Unfunded Mandates Reform Act?

F. How Does This Rule Comply With

Executive Order 13045: Protection of

Children from Environmental Health

Risks and Safety Risks?

G. How Does This Rule Comply with

Executive Order 13132 on Federalism?

H. How Does This Rule Comply with

Executive Order 13084: Consultation and

Coordination With Indian Tribal

Governments?

I. Does This Rule Comply with the

National Technology Transfer and

Advancement Act of 1995 (‘‘NTTAA’’)?

I. Authority

EPA is promulgating this regulation

under the authority of sections 307, 308,

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

1318, 1361.

II. Background

A. Overview of Project XL and XLC

Each Project XL pilot— ‘‘eXcellence

and Leadership’’ is described in a Final

Project Agreement (FPA). For this

Project XL for Communities (XLC), the

FPA sets forth the intentions of EPA, the

Minnesota Pollution Control Agency

(MPCA) and the Steele County

Community with regard to a project

developed under Project XLC, an EPA

initiative to allow regulated entities to

achieve better environmental results

using common sense, cost effective

strategies. This regulation will enable

implementation of the project. Project

XL was announced on March 16, 1995,

as a central part of the National

Performance Review and the EPA’s

effort to reinvent environmental

protection. See 60 FR 27282 (May 23,

1995). Project XL provides a limited

number of private and public regulated

entities an opportunity to develop their

own pilot projects to provide regulatory

flexibility that will result in

environmental protection that is

superior to that which would be

achieved through compliance with

current and future regulations. These

efforts are crucial to EPA’s ability to test

new strategies that reduce the regulatory

burden and promote economic growth

while achieving better environmental

and public health protection. EPA

intends to evaluate the results of this

and other XL projects to determine

which specific elements of the

project(s), if any, should be more

broadly applied to other regulated

entities for the benefit of both the

economy and the environment.

Under Project XL, participants in four

categories—facilities, industry sectors,

governmental agencies and

communities—are offered the flexibility

to develop common sense, cost-effective

strategies that will replace or modify

specific regulatory requirements on the

condition that they produce and

demonstrate superior environmental

performance. Project XLC, excellence

and leadership for communities, was

developed to focus on communities and

local governments or regional

organizations that are interested in

creating an XL project. See 60 FR 55569

(November 1, 1995). Project XLC

encourages potential sponsors to come

forward with new approaches to

demonstrate community-designed and

directed strategies for achieving greater

environmental quality consistent with

community economic goals. To

participate in Project XLC, applicants

must develop alternative pollution

reduction strategies pursuant to nine

criteria: superior environmental results;

stakeholder involvement, support, and

capacity for community participation;

economic opportunity; test of an

innovative multi-media strategy;

transferability; feasibility; community

planning; identification of monitoring,

reporting and evaluation methods; and

equitable distribution of environmental

risks. Projects must have the full

support of affected federal, state and

tribal agencies to be selected.

For more information about the XL

and XLC criteria, readers should refer to

the three descriptive documents

published in the Federal Register (60

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

November 1, 1995; and 62 FR 19872,

April 23, 1997). For further discussion

as to how the Steele County XL

Communities project addresses the XLC

criteria, readers should refer to the Final

Project Agreement and fact sheet that

are available from the docket for this

action (see ADDRESSES section of today’s

preamble).

Project XL is intended to allow the

EPA to experiment with untried,

potentially promising regulatory

approaches, both to assess whether they

provide benefits at the specific facility

affected, and whether they should be

considered for wider application. Such

pilot projects allow the EPA to proceed

more quickly than would be possible

when undertaking changes on a

nationwide basis. EPA may modify

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

that represent one of several possible

policy approaches within a more

general statutory directive, so long as

the alternative being used is permissible

under the statute. Adoption of such

alternative approaches or interpretations

in the context of a given XL project does

not, however, signal EPA’s willingness

to adopt that interpretation as a general

matter, or even in the context of other

XL projects. It would be inconsistent

with the forward-looking nature of these

pilot projects to adopt such innovative

approaches prematurely on a

widespread basis without first

determining whether or not they are

viable in practice and successful for the

particular projects that embody them.

Depending on the results in these

projects, EPA may or may not be willing

to consider adopting the alternative

approach or interpretation again, either

generally or for other specific facilities.

EPA believes that adopting alternative

policy approaches and/or

interpretations, on a limited, site- or

State-specific basis and in connection

with a carefully selected pilot project, is

consistent with the expectations of

Congress about EPA’s role in

implementing the environmental

statutes (so long as EPA acts within the

59740 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

discretion allowed by the statute).

Congress’ recognition that there is a

need for experimentation and research,

as well as ongoing reevaluation of

environmental programs, is reflected in

a variety of statutory provisions, e.g.,

section 104 of the CWA (33 U.S.C.

1254).

B. Overview of the Steele County XLC

Project

1. Description of the Steele County

Community XL Project CommunityBased Environmental Regulation

The Steele County XLC pilot project

will test the effectiveness of a

community-based approach to

industrial regulated wastewater effluent

reductions and water use reduction

controls designed to: (1) Result in

pollution prevention; (2) meet the

objectives of the CWA regulatory

program; and (3) be at least as protective

of human health and the environment as

the current system. This project will

pilot a community-based approach to

environmental regulation with the goal

of achieving a reduction in the

discharge of certain metals to the

OWWTF, and Biological Oxygen

Demand (BOD), Total Suspended Solids

(TSS) and Total Kjeldahl Nitrogen

(TKN) to the BPWWTF. Other aspects of

the pilot program will include water

usage reduction, the development and

implementation of a storm water and

sewer water separation and education

plan, and the development of a training

and assessment program of an

Environmental Management System. If

this first phase of the project is

considered by the parties to be

successful, a Phase II, consisting in

general outline of a multi-media

approach to environmental permitting

based on overall community

performance in the areas of air

emissions, solid waste, hazardous

waste, chemical storage, and community

sustainability may be considered.

Today’s rule does not cover or commit

to a second phase of this project.

For the purposes of today’s rule the

group of Owatonna Sponsors who are

Participating Industrial Users, includes

the following Industrial Users (IUs) in

the City of Owatonna: Crown Cork and

Seal Company, Inc.; Cybex International

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

SPx Corporation, Service Solutions

Division; Truth Hardware Corporation;

and Uber Tanning Company. Two

facilities included in the Owatonna

Sponsor group, Viracon-Marcon, Inc.

and the Wenger Corporation and one

Sponsor located in Blooming Prairie,

Minnesota, ATOFINA Chemicals, Inc.

(formerly Elf Atochem), are not

receiving regulatory flexibility under

today’s rule and are therefore not

included as Participating Industrial

Users.

To achieve the objectives of Phase 1

of the Project, part of this project will

pilot an incentive-based approach to

reduced monitoring requirements. As

the Owatonna Sponsors who are

Participating Industrial Users, as a

group meet certain discharge reduction

goals, the City may reduce the required

frequency of monitoring for any of the

Participating Industrial Users. Other

aspects of this pilot program include: (1)

Pollutant monitoring may be eliminated

where a pollutant is not discharged; (2)

in order to encourage water use

reduction compliance with a

concentration-based Pretreatment

Standard may be demonstrated by

compliance with an equivalent massbased limit (as discussed in section III.

A.1. of this preamble); and (3) an

alternative publication process for

Significant Noncompliance (SNC) may

be put in place. Finally, Sponsors may

seek ‘‘No Exposure Certification for

Exclusion from NPDES Storm Water

Permitting’’, which is available under

existing regulations (40 CFR 122.26(g),

pursuant to a change in the regulations

found at 64 FR 68722 (December 8,

1999)), and does not require flexibility

under today’s rule. Each of the elements

of the pilot program that require

regulatory flexibility are explained in

the following sections of this preamble.

To achieve the objectives of this

project the Participating Industrial Users

have committed to utilize their best

efforts to reach certain discharge

reduction goals. Only if these goals are

met will regulatory flexibility regarding

lesser monitoring requirements than

currently required under 40 CFR

403.12(e)(1) be granted. Specifically, the

Participating Industrial Users located in

Owatonna (or the ‘‘City’’) commit to a

20% reduction goal in the amount of

nickel, chromium, copper, and zinc (by

mass) they discharge to the OWWTF.

These reduction goals are for each

individual pollutant. If the first 20%

reduction goal is met, a further 20%

reduction goal may be set for the

remaining project term. If the initial

20% reduction goal is met for all

pollutants, the City may, at its

discretion, reduce the self-monitoring

frequency of Owatonna Sponsors who

are Participating Industrial Users to

once per year. If a second metal

reduction goal is set, it need not be

achieved in order for the minimum

monitoring frequency to remain at once

per year and no additional regulatory

relief is available upon meeting this

second goal; accordingly, today’s rule

does not address this second goal. In

exercising the discretion provided in

today’s rule, the OWWTF will be

required to consider the Participating

Industrial User’s previous three years of

compliance data, and may not reduce

monitoring for pollutants where there is

a reasonable potential of violating

Pretreatment Standards.

This project focuses on the four

metals slated for 20% release reductions

because they are the metals determined

to be discharged at the highest levels to

the Owatonna wastewater treatment

system relative to applicable water

quality and biosolids criteria. In

addition, the participants are regulated

for these pollutants under categorical

Pretreatment Standards and influence

the loading of these pollutants to the

Owatonna wastewater treatment system.

Specific reductions of other

categorically-regulated metals are not

being pursued under this project

because they are released in small

quantities relative to applicable

environmental criteria. Because certain

of these other metals may be present at

some of the participant facilities, these

metals may not qualify for the

elimination of monitoring due to no

releases. In such cases, the PublicallyOwned Treatment Works (POTW) will

need to require continued monitoring of

these metals. Through this rule the

POTW will be given the discretion to

reduce monitoring frequencies for the

other categorically-regulated metals to

the same extent it is being authorized to

consider reduced monitoring for the

four metals subject to the 20% reduction

goals.

This project will also authorize the

City to allow a Sponsor Participating

Industrial User subject to categorical

Pretreatment Standards to not sample

for a pollutant, if it is not expected to

be present in its wastestream at levels

greater than background levels in its

water supply. For such pollutants, the

OWWTF will only be required to

conduct sampling and analysis once

during the term of the Participating

Industrial User’s permit. The

Participating Industrial User will still be

subject to the categorical Pretreatment

Standards for pollutants determined not

to be present, and will need to resume

monitoring if sampling indicates that a

pollutant is present at 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 may modify the IU’s permit to

reduce or eliminate the monitoring

requirements for the pollutant(s). The

Participating Industrial User permit will

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59741

also require the User to submit, as part

of its regular semi-annual monitoring

reports, certification that there has been

no increase of the pollutant in its

wastewater due to its activities. The

POTW will sample the Participating

Industrial User’s effluent for all

pollutants in the applicable categorical

Pretreatment Standard at least once

during the term of the IU’s permit.

One of the goals of this pilot project

will be to facilitate water conservation

measures at the Sponsors’ facilities. The

total flow to the OWWTF from the six

Owatonna Sponsors who are

Participating Industrial Users is 415,000

gallons per day. The Owatonna

Sponsors commit to a goal in the FPA

of reducing this flow by 10%. To

facilitate meeting this goal this rule

allows the OWWTF to set equivalent

mass limits as an alternative to

concentration limits to meet

concentration-based categorical

Pretreatment Standards. Under the

proposed rule entitled ‘‘Streamlining

the General Pretreatment Regulations for

Existing and New Sources of Pollution’’

(Pretreatment Streamlining Proposal),

which was published on July 22, 1999

(64 FR 39564), Control Authorities

would be allowed to establish

alternative mass limits if an Industrial

User has installed Best Available

Technology Economically Achievable

(BAT), or equivalent to BAT treatment,

and the Industrial User is employing

water conservation methods and

technologies that substantially reduce

water use (Control Authority is defined

at 40 CFR 403.12 (a) and is a broad term

that can mean a POTW with an

approved pretreatment program or the

Approval Authority (defined at 40 CFR

403.3 (c)) where the POTW does not

have an approved pretreatment

program. The City of Owatonna has an

approved pretreatment program.). While

all of the conditions for receiving mass

limits laid out in EPA’s Streamlining

Proposal are not being required for this

site-specific rule (see discussion

regarding Today’s Rule in Equivalent

Mass Limits for Concentration Limits

section of III.A), EPA is interested in

determining whether providing mass

limits prior to full adoption of water

conservation practices will encourage

more widespread adoption of such

practices. To ensure the continued

appropriateness of the specific mass

limits, Sponsor industries who are

Participating Industrial Users will also

be required to notify the City in the

event production rates are expected to

vary by more than 20 percent from a

baseline production rate determined by

Owatonna when it establishes a

Participating Industrial User’s initial

mass limits. The Participating Industrial

Users will be required to continue

operation of at least the same level of

treatment as at the outset of the project.

Upon notification of a revised

production rate, the City will reassess

the appropriateness of the mass limit.

Sponsor ATOFINA Chemicals

discharges 16,900 gallons per day to the

BPWWTF and commits in the FPA to a

reduction goal of 10% of this amount.

Because ATOFINA Chemicals is

currently required to comply with massbased limits, no change to its limits are

required to facilitate water conservation

measures.

EPA is today promulgating a sitespecific alternative procedure for

publishing Significant Noncompliance

for Participating Industrial Users. SNC

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

including violations by an Industrial

User which meet one or more of eight

specific criteria. Currently, POTWs are

required to publish in the largest daily

newspaper in the municipality in which

the POTW is located a list of Industrial

Users who have been in SNC at any time

during the previous twelve months. The

SNC publication requirement serves at

least two important functions: (1) A

deterrent effect on Industrial Users to

avoid noncompliance generally, and

SNC specifically, and (2) notice to the

public of Significant Noncompliance.

One result of this approach is that, if the

POTW publishes the notice for a

particular SNC violation after the end of

the twelve month period, the

publication may not occur close in time

to the violation, resulting in a delay

between the violation and the notice to

the public.

The intent of the alternative

procedure promulgated today is to

require website notice of all SNC

violations, and reserve additional

newspaper publication for cases where

this format is needed for its potentially

greater effect. The Sponsors also intend

to promote prompt and appropriate

assistance for identifying and correcting

violations through a unique communitybased approach. Pursuant to the Steele

County FPA, an Owatonna Peer Review

Committee will be established. This

Committee will consist of at least two

Owatonna Sponsors not connected to

the noncompliance event being

reviewed and any stakeholders that

wish to participate. The Peer Review

Committee will investigate all instances

of noncompliance by an Owatonna

Sponsor who is a Participating

Industrial User and provide

recommendations and assistance to

expedite a return to compliance. The

Peer Review Committee will make

recommendations to the City regarding

whether or not publication in a

newspaper should occur, in addition to

the website publication described

below. All recommendations by the Peer

Review Committee will be non-binding

on the City, and the City must continue

to implement its State-approved

Enforcement Response Plan. Under the

Steele County FPA, the Sponsors will

take steps to conduct public outreach on

the information available regarding

Significant and other noncompliance by

the Sponsors, including a description of

the Peer Review Committee and its

functions, a Committee contact person

and telephone number, and notice of

Peer Review Committee meetings. Such

outreach will include, but not be limited

to, periodic (at least annual) mailings to

the identified Steele County XL

community stakeholders, and notice in

the public library.

Any violation which is not corrected

within thirty (30) calendar days or

which results in pass through (as

defined at 40 CFR 403.3(n)) or

interference (as defined at 40 CFR

403.3(i)) will continue to be published

in a newspaper as currently required in

Part 403. All SNC violations, whether

published in a newspaper or not, will be

published as soon as is practicable on

the MPCA web site. The website must

contain an explanation of how SNC is

determined. A contact name and phone

number for information regarding all

other violations must also be listed on

the MPCA website.

2. What Are the Environmental Benefits

of the Project?

This XLC project is expected to

achieve superior environmental

performance beyond that which is

achieved under the current CWA

regulatory system by encouraging the

Sponsors to work together in a

coordinated manner to efficiently

reduce their discharges to the OWWTF.

As has been described, the Owatonna

Sponsors who are Participating

Industrial Users have committed to 20%

discharge reduction goals for nickel,

chromium, copper, and zinc. Although

not receiving regulatory flexibility

under today’s proposal, ATOFINA

Chemicals has committed to analogous

discharge reduction goals for BOD, TSS,

and TKN to the BPWWTF. The

Participating Industrial Users and the

Blooming Prairie Sponsor have

additionally committed to a goal of at

least a 10% reduction in water usage.

Besides the direct environmental

benefits of these reductions, the

Sponsors have agreed to conduct an

Environmental Management System

(EMS) assessment within eighteen

59742 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

months of the effective date of the

project. In the first year of the project,

the Sponsors commit to arrange and

participate in training for the

development of the EMS. The Sponsors

will utilize the information from the

EMS assessment to reach the discharge

reduction goals as well as to examine

their facilities for other possible

environmental improvements. The

Sponsors have agreed to report to EPA

and the MPCA the results of the

assessment and the suggestions which

have been adopted by each facility.

Additionally, the City has identified

storm water infiltration into the

collection system during wet weather

events as a major problem. The

Owatonna Sponsors have agreed to

work with the City to help alleviate this

problem through the development of

educational materials which will be

distributed to Sponsor employees as

well as to the community at large. The

Owatonna Sponsors have also

committed in the FPA to develop a plan

to minimize storm water infiltration into

the sewer system at each participating

facility.

One unique aspect of this pilot project

is the desire of the Sponsor facilities to

work together to reach common goals. It

is hoped that this cooperation will go

beyond the specific goals of this project

and result in presently unforseen

environmental benefits.

3. What Are the Economic Benefits and

Paperwork Reduction Deriving From the

Project?

This XLC Project will encourage the

Sponsors to reduce water consumption

at their facilities. This may result in

reduced water costs for the facilities,

without diminishing the level of

environmental protection. Assuming the

Sponsors discharge lower levels of

pollutants to the OWWTF and the

BPWWTF, these POTWs may benefit

from lower treatment costs. To the

extent monitoring and reporting

frequencies are reduced under this

project, reduced expenditures may

result. The EMS assessments may

identify further environmental and

economic benefits.

4. Stakeholder Involvement

Stakeholder involvement and

participation is vital to the success of

the Steele County XLC project. The

participants have worked through a

Community Advisory Committee,

established by the Steele County Project

Sponsors, to ensure that the general

public has had an opportunity to be

involved throughout the development of

this project. The participants will

continue to work to foster full and open

communication between the general

public and the project Sponsors.

In addition, the Peer Review

Committee will continue to provide

opportunities for input from the

community on important compliance

issues. For example, if a Sponsor is in

noncompliance, the Peer Review

Committee will provide input to bring

the Sponsor back into compliance.

Sponsors will continue outreach work

with all stakeholders using the strategies

and tactics contained in their Proposed

Stakeholder Involvement Plan (June

1999). MPCA, the Steele County

Sponsors, Owatonna, Blooming Prairie,

and EPA have been involved in the

development of this project, and

support it. From the beginning of the

Steele County XLC process, there has

been a high priority on providing

opportunity for diverse stakeholder

input and review. Public meetings were

held in the city of Owatonna on June 9,

July 27, and September 23, 1999.

5. What Is the Project Duration and

Completion Date?

As with all XL projects testing

alternative environmental protection

strategies, the term of the Steele County

Community XL project is one of limited

duration. The duration of the regulatory

relief provided by this rule is

anticipated to be five (5) years from

October 6, 2000 or until October 6,

2005. However, the project may be

terminated or suspended at any time for

failure to comply with any of the

requirements of the rule. If the parties

renew the Steele County Community XL

Final Project Agreement beyond its

initial five year period, then it may be

necessary to extend this site-specific

rule for an additional period of time.

6. How Will EPA Ensure That Only

Appropriate Sponsors Continue To

Receive Flexibility Under This Rule?

If EPA determines that it is

appropriate to terminate Project

participation of one or more Sponsors

who are Participating Industrial Users,

so that they will no longer be eligible to

receive the regulatory flexibility

provided in today’s rule, EPA will

coordinate with the POTW and State to

make the necessary changes to the

Participating Industrial User’s permit.

EPA retains its enforcement authority

under the CWA to enforce Pretreatment

Standards whether or not the POTW or

State make such changes to the

Participating Industrial User’s permit.

7. How May the Project Be Terminated?

When the State modifies Owatonna’s

NPDES permit to incorporate the

flexibility in today’s rule, it has agreed

to include a reopener provision enabling

the State to eliminate this flexibility.

The State has agreed to use this

reopener provision if the Project is

terminated. In the event of early Project

termination, EPA will also eliminate the

provisions of proposed section 403.19 in

advance of its October 6, 2005

expiration date.

III. Rule Description

A. Clean Water Act Requirements,

Pretreatment Streamlining Proposal and

Summary of Regulatory Requirements

for the Steele County XL Project

Equivalent Mass Limits for

Concentration Limits (40 CFR 403.19(b))

1. Existing Requirements (40 CFR

403.6(c)). National categorical

Pretreatment Standards establish limits

on pollutants discharged to POTWs by

facilities in specific industrial

categories. The Pretreatment Standards

establish pollutant limitations in

different ways for different categories.

EPA has established categorical

Pretreatment Standards that are: (1)

Concentration-based standards that are

implemented directly as concentration

limits; (2) mass limits based on

production rates; (3) both concentrationbased and production-based limits; and

(4) mass limits based on a concentration

standard multiplied by a facility’s

process wastewater flow. The current

regulations do not allow a mass limit to

substitute for a concentration limit

when the applicable standard is

expressed in terms of concentration.

While 40 CFR 403.6(d) allows the

Control Authority to develop equivalent

mass limits for concentration-based

standards in order to prevent dilution,

the equivalent limit applies in addition

to the concentration limit. Today’s rule

allows a Participating Industrial User

who qualifies for flexibility under the

rule to demonstrate compliance with the

categorical Pretreatment Standard by

demonstrating compliance with an

equivalent mass-based limit alone.

2. The Pretreatment Streamlining

Proposal. In its proposed rule entitled

Streamlining the General Pretreatment

Regulations for Existing and New

Sources of Pollution (64 FR 39564, July

22, 1999) (Pretreatment Streamlining

Proposal), EPA proposed to allow

Control Authorities to set equivalent

mass limits as an alternative to

concentration limits to meet

concentration-based categorical

Pretreatment Standards in cases where

an Industrial User has installed model

treatment technology or a treatment

technology that yields optimum removal

efficiencies, and the Industrial User is

employing water conservation methods

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59743

and technologies that substantially

reduce water use. The Agency, however,

solicited comments on whether mass

limits would be appropriate in other

situations. EPA proposed that 40 CFR

403.6(c) be revised to clarify that

equivalent mass limits may be

authorized by the Control Authority in

lieu of concentration-based limits for

Industrial Users. The Control Authority

would be required to document how the

mass limits were derived and make this

information publicly available.

The July 22, 1999, proposed rule also

specifically referenced the Steele

County XL Community Project and

indicated that, if this project were ready

to proceed before EPA finalized the

complete Pretreatment Streamlining

proposal, EPA may promulgate, based

on that proposal and comments

received, a separate site-specific rule to

allow the industries involved in the

Steele County XLC project to use, at the

discretion of the Control Authority, the

change proposed for 40 CFR 403.6(c).

3. Today’s Rule. To facilitate water

use reduction by industries involved in

the Steele County XLC Project, EPA is

allowing the City of Owatonna, which is

the Control Authority for the Owatonna

Sponsor industries, the Participating

Industrial Users, to set equivalent mass

limits as an alternative to concentration

limits to meet concentration-based

categorical Pretreatment Standards. For

this site-specific rule, EPA will not

require Approval Authority review of

equivalent mass-based limits in addition

to POTW approval because EPA

believes that existing Approval

Authority oversight is sufficient to

ensure that equivalent mass-limits are

properly calculated and applied. EPA

expects that the experience with Steele

County on this element of today’s rule

may well inform whether Approval

Authority review should be required in

the Pretreatment Streamlining Proposal.

Mass limits must be established by

multiplying the five year, long term

average process flows of the

Participating Industrial Users (or a

shorter period if production has

significantly increased or decreased

during the five year period) by the

concentration-based categorical

Pretreatment Standards. In general,

flows used to establish mass-based

limits must be appropriate in relation to

current production or known future

production, and will be determined

based on consultation between the

industry and the City of Owatonna.

EPA’s ‘‘Guidance Manual for the Use of

Production-Based Pretreatment

Standards and the Combined

Wastestream Formula’’, EPA833–B–85–

201, September 1985 provides

additional guidance on establishing

appropriate long-term average flows.

Importantly, today’s rule will not

affect the applicability of categorical

Pretreatment Standards. Section 307(d)

of the Clean Water Act prohibits the

owner or operator of any source from

operating in violation of any

Pretreatment Standard. See 33 U.S.C.

1317(d). Today’s rule will simply allow

a Participating Industrial User to

demonstrate compliance with a

concentration-based Pretreatment

Standard by meeting a properlycalculated, mass-based equivalent.

Today’s rule does not affect the

underlying categorical Pretreatment

Standard and, therefore, does not

improperly transfer standard-setting

authority to the City of Owatonna.

Compliance with a mass-based limit

may be used to demonstrate compliance

with a categorical Pretreatment

Standard only to the extent that the

mass-based equivalent is properly

calculated. In any event, EPA retains its

authority to oversee POTW

implementation of categorical

Pretreatment Standards, including the

authority to ensure that equivalent

mass-based limits correctly interpret

and apply concentration-based

Pretreatment Standards. EPA notes that

these provisions are similar to the

existing authority to allocate equivalent

mass limits or concentration limits for

production-based standards. See 40 CFR

403.6(c)(2).

In return for this flexibility, the

Sponsor industries, the Participating

Industrial Users, are committing as a

group to reduce water usage by 10

percent over the initial five-year project

period. In this site-specific rule EPA is

not conditioning the availability of

mass-based limits on the use of water

conservation methods and technologies

(as it would in the Pretreatment

Streamlining Rule) because EPA wishes

to determine whether the structure of

today’s rule would result in the desired

reduction in water use without

imposing preconditions that may limit

more widespread participation. For the

same reason, EPA is not requiring that

Participating Industrial Users generate

complex technical studies to

demonstrate the necessity of equivalent

mass-based limits. In addition, this rule

will not require that Participating

Industrial Users utilize model treatment

technologies that serve as the basis for

the applicable Pretreatment Standards.

Instead, EPA is interested in

determining whether or not it would be

sufficient to prevent facilities from

complying with the applicable

Standards, in the event of production

decreases, by requiring that the facility

maintain at least the same level of

treatment as at the time an equivalent

mass limit is established. To ensure the

continued appropriateness of the

specific mass limits, the Participating

Industrial Users will also be required to

notify the City in the event production

rates are expected to vary by more than

20 percent from the previous year’s

average. Upon notification, the City will

reassess the appropriateness of the mass

limit.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF,

and the City will need to revise IU

permits issued to Participating

Industrial Users to enable it to establish

alternative mass limits. The City will

also need to evaluate its sewer use

ordinance to determine if revisions are

necessary to implement the changes

promulgated today.

Sampling for Pollutants Not Present (40

CFR 403.19(c))

1. Existing Requirements (40 CFR

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

CFR 403.12(e)(1) requires Industrial

Users subject to categorical Pretreatment

Standards to submit reports to the

Control Authority at least twice a year,

indicating the nature and concentration

of all pollutants in their effluent that are

limited by the Standards. 40 CFR

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

Authorities to sample these Industrial

Users at least annually. Sampling is

currently required for all pollutants

limited by a categorical Pretreatment

Standard, even if certain pollutants

regulated by the Standard are not

reasonably expected to be present.

2. The Pretreatment Streamlining

Proposal. The July 22, 1999

Pretreatment Streamlining proposal

would authorize a Control Authority to

allow an Industrial User subject to

categorical Pretreatment Standards to

not sample for a pollutant if the

pollutant is not expected to be present

in its wastestream in a quantity greater

than the background level present in its

water supply, with no increase in the

pollutant due to the regulated process.

The Agency also proposed a reduced

sampling requirement for the POTW, to

once per permit term, once it had

determined that a pollutant was not

expected to be present.

The Pretreatment Streamlining

proposal would require the Control

Authority’s decision to waive sampling

to be based upon both sampling and

other technical data, such as the raw

materials, industrial processes, and

potential by-products. EPA did not

propose that a specific amount of

59744 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

sampling data be required but solicited

comment on that issue.

3. Today’s Rule. For purposes of this

project, and as specified in Attachment

C of the FPA, the City will be authorized

to allow a Sponsor Participating

Industrial User subject to categorical

Pretreatment Standards to reduce the

required sampling to less than twice per

year, or to not sample for a pollutant, if

it is not expected to be present in its

wastestream at levels greater than

background levels in its water supply,

with no increase in the pollutant due to

the regulated process. For such

pollutants, the POTW will only be

required to conduct sampling and

analysis once during the term of the

Participating Industrial User’s permit.

The Participating Industrial User will

still be subject to the categorical

Pretreatment Standards for pollutants

determined not to be present, and will

be in violation of the limit and will need

to resume the required sampling if

existing sampling indicates the User has

violated the limit.

Consistent with the Pretreatment

Streamlining Proposal, for purposes of

this project, determinations by the City

of Owatonna to either waive or reduce

Participating Industrial User sampling

to less than twice per year will be based

on both sampling and other technical

data, such as raw material usage,

industrial processes, and potential byproducts. Existing data on pollutant

concentrations of the local public water

supply will be used to characterize

background concentrations; where a

Participating Industrial User uses an

alternative water supply, representative

influent sampling will need to be

provided. At least three years of

Participating Industrial User effluent

data will then be compared to the

background data in making the

determination that a given pollutant is

not expected to be present. In addition,

the city will need to make its

determination based on its knowledge of

the raw materials used and the facility’s

processes and potential by-products, but

will not consider capability and

efficiency of the User’s pretreatment

system. Where it believes it is necessary

to make a determination, the City may

require a Participating Industrial User to

provide representative data on its

untreated effluent.

Once the POTW determines that one

or more pollutants are not expected to

be present at a Participating Industrial

User, it may modify the Participating

Industrial User’s permit to reduce or

eliminate the monitoring requirements

for the pollutant(s). The IU permit must

also require the Participating Industrial

User to submit, as part of its regular

semi-annual monitoring reports,

certification that there has been no

increase in the pollutant in its

wastewater due to its activities. The

POTW must sample the Participating

Industrial User’s effluent for all

pollutants in the applicable categorical

Pretreatment Standard at least once

during the term of the Participating

Industrial User’s permit.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF,

and the City will need to revise

Participating Industrial User permits

issued to Sponsor facilities to enable it

to eliminate monitoring for pollutants

not present. The City will also need to

evaluate its sewer use ordinance to

determine if revisions are necessary to

implement the changes promulgated

today.

Monitoring Frequency Reductions (40

CFR 403.19(e))

1. Existing Requirements (40 CFR

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

403.12(e)(1) currently requires

Industrial Users subject to categorical

Pretreatment Standards to submit

reports to the Control Authority twice a

year, or more frequently if required by

the Pretreatment Standard or the POTW,

indicating the nature and concentration

of all pollutants in their effluent that are

limited by the Pretreatment Standards.

The City of Owatonna generally requires

its significant IUs to monitor and report

on a quarterly basis.

2. Today’s Rule. Upon initiation of

this project, the City will evaluate the

recent performance of Sponsor

Participating Industrial Users, and may

reduce monitoring requirements to

twice per year for facilities with

satisfactory compliance records. After

the first metal reduction goal of 20% is

met, the City will be authorized, at its

discretion, to reduce the self-monitoring

frequency of Participating Industrial

Users for any regulated pollutant to

once per year. EPA believes that this

mechanism will provide an incentive

for Participating Industrial Users to

reduce their contribution of the

specified metals. In exercising this

discretion, the OWWTF will be required

to consider the Participating Industrial

User’s previous three years of

compliance data, and cannot reduce

monitoring for pollutants where there is

a reasonable potential of violating

Pretreatment Standards.

The loading values that were

specified in the proposed rule have been

adjusted in today’s rule based on a 20

percent reduction from the baseline

loadings from the final group of

Owatonna Participating Industrial

Users.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF,

and the City will need to revise

Participating Industrial User permits

issued to Sponsor facilities to reduce

monitoring frequencies for regulated

pollutants. The City will also need to

evaluate its sewer use ordinance to

determine if revisions are necessary to

implement the changes promulgated

today.

Significant Noncompliance Criteria (40

CFR 403.19(f))

1. Existing Requirements (40 CFR

403.8(f)(2)(vii)). ‘‘Significant

Noncompliance’’ (SNC) is defined in 40

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

that meet one or more of eight criteria.

The criteria are: (1) Chronic violations

of discharge limits (where 66 percent of

all measurements taken during a 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 Control Authority’s exercise of its

emergency authority to halt or prevent

such a discharge; (5) failure to meet,

within 90 days after the schedule date,

a compliance schedule milestone

contained in a local control mechanism

or enforcement order for certain

activities; (6) failure to provide required

reports within 30 days after the due

date; (7) failure to accurately report

Noncompliance; and (8) any other

violation or group of violations which

the Control Authority determines will

adversely affect the operation or

implementation of the local

Pretreatment Program.

On July 24, 1990, EPA modified 40

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

existing definition of SNC (55 FR

30082). The purpose of this

modification was to provide some

certainty and consistency among

Control Authorities for publishing their

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59745

lists of Industrial Users in

Noncompliance. Under this provision,

Control Authorities are required to

annually publish a list of Industrial

Users in SNC at any time during the

previous twelve months. The Control

Authority must publish this list in the

largest daily newspaper published in

the municipality in which the POTW is

located. Independent of this publication

requirement, Control Authorities are

required to develop and implement

Enforcement Response Plans, which

describe the range of enforcement

responses they will use in addressing

various types of IU Noncompliance.

Where an IU is identified as being in

SNC, EPA guidance recommends that

the Control Authority respond with

some type of formal enforcement action

such as an enforceable order (‘‘Guidance

for Developing Control Authority

Enforcement Response Plans,’’ EPA

832–B–89–102, September 1989.)

2. The Pretreatment Streamlining

Proposal. EPA did not propose to

amend the entire provision on SNC, or

even seek comment on all of it. Instead,

the Agency proposed limited changes

and sought comment on a number of

options for a few specific provisions.

With respect to publication, the primary

purposes of which are to notify the

public of violations and provide a

disincentive for violating, EPA proposed

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

allow publication of the SNC list in any

paper of general circulation within the

jurisdiction served by the POTW that

provides meaningful public notice. EPA

also proposed to amend the SNC criteria

so that they must only be applied to

Significant Industrial Users, and to

address more than just daily maximum

and monthly average limits. The Agency

also sought comments on whether to

revise the Technical Review Criteria,

whether to revise the SNC criteria for

late reports, and whether to codify the

rolling quarters approach to determining

SNC or adopt some other approach.

3. Today’s Rule. Under today’s sitespecific rule, the City will have the

discretion to not publish certain

instances of SNC by Sponsor

Participating Industrial Users in a

newspaper. EPA believes that this

change will provide faster public notice

of SNC and will reserve additional

newspaper publication of SNC for cases

where this format is needed for its

potentially greater effect. The City will

continue to be required to provide

newspaper publication of any violation

which is not corrected within thirty (30)

calendar days, or which results in pass

through or interference. All SNC

violations, whether published in a

newspaper or not will be published as

soon as is practicable, on the MPCA web

site. The web site will contain an

explanation of how SNC is determined,

as well as a contact name and phone

number for information regarding all

other violations. The Owatonna Peer

Review Committee system contemplated

in the Steele County FPA will not be

specified expressly in the rule, but

rather is a voluntary agreement on the

part of the Sponsors.

In addition to EPA’s rulemaking

action, MPCA will need to issue a

revised NPDES permit to the OWWTF.

The City will also need to evaluate its

sewer use ordinance to determine if

revisions are necessary to implement

the changes promulgated today.

B. Changes to the Proposed Rule

EPA received no public comments on

the proposed rule. EPA has made only

one change to the proposed rule. The

final rule includes the final list of

Participating Industrial Users and

adjusts the average daily loadings for

chromium, copper, nickel and zinc in

§ 403.19(e) of the proposal to reflect

participation of the final group of

Participating Industrial Users.

IV. Response to Significant Public

Comments

EPA received no public comments on

the proposed rule.

V. What Is the Effective Date of This

Rule?

Pursuant to 5 U.S.C. 553(d)(1), EPA is

making this rule effective immediately

upon publication because it relieves a

restriction in that it reduces monitoring

requirements and as such has the effect

of reducing regulatory requirements for

the Participating Industrial Users. In

addition, pursuant to 5 U.S.C. 553(d)(3),

EPA finds that good cause exists to

make this rule effective immediately.

The Owatonna Wastewater Treatment

Plant and six Participating Industrial

User facilities are the only regulated

entities affected by this rule. The

Owatonna Wastewater Treatment

Facility and the Participating Industrial

Users have had full notice of this sitespecific rule. Making the rule

immediately effective will allow the

MPCA to issue a revised NPDES permit

to the Owatonna Wastewater Treatment

Facility sooner.

VI. Additional Information

A. How Does This Rule Comply With

Executive Order 12866?

Under Executive Order 12866 (58 FR

51735, October 4, 1993) EPA must

determine whether the regulatory action

is ‘‘significant’’ and therefore subject to

Office of Management and Budget

(OMB) review and the requirements of

the Executive Order. The Order defines

‘‘significant regulatory action’’ as one

that is likely to result in a rule that may:

(1) Have an annual effect on the

economy of $100 million or more or

adversely affect in a material way the

economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety in

State, local, or tribal governments or

communities; (2) Create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency; (3) Materially alter the

budgetary impact of entitlement, grants,

user fees, or loan programs or the rights

and obligations of recipients thereof; or

(4) Raise novel legal or policy issues

arising out of legal mandates, the

President’s priorities, or the principles

set forth in the Executive Order.

Because the annualized cost of this

rule will be significantly less than $100

million and will not meet any of the

other criteria specified in the Executive

Order and because this rule affects only

six specific private sector facilities and

a single Publically-Owned Treatment

Works (POTW), it is not a rule of general

applicability or a ‘‘significant regulatory

action’’ and therefore not subject to

OMB review and Executive Order

12866.

Further today’s rule does not affect

the POTW or the facilities unless they

choose on a voluntary basis to

participate in the XL project. Finally,

OMB has agreed that review of sitespecific rules under Project XL is not

necessary.

B. Is a Regulatory Flexibility Analysis

Required?

Regulatory Flexibility Act (RFA), as

amended by the Small Business

Regulatory Enforcement Fairness Act of

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

The RFA generally requires an agency

to prepare a Regulatory Flexibility

Analysis of any rule subject to notice

and comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Under section 605(b) of the RFA,

however, if the head of an agency

certifies that a rule will not have a

significant economic impact on a

substantial number of small entities, the

statute does not require the agency to

prepare a Regulatory Flexibility

Analysis. Pursuant to section 605(b), the

Administrator certifies that this rule

will not have a significant economic

impact on a substantial number of small

entities for the reasons explained below.

59746 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

Consequently, EPA has not prepared a

Regulatory Flexibility Analysis.

Small entities include small

businesses, small organizations and

small governmental jurisdictions. For

purposes of assessing the impacts of

today’s rule on small entities, small

entity is defined as: (1) A small business

according to RFA default definitions for

small business (based on SBA size

standards); (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field.

Today’s rule amends EPA’s General

Pretreatment Regulations to modify on a

site-specific basis the requirements for

pretreatment programs. The rule

authorizes the Owatonna, Minnesota

Waste Water Treatment Facility, in its

discretion, to reduce the required

frequency of monitoring for

Participating Industrial Users. Only one

POTW is subject to this rule and grant

of the relief authorized by the rule will

reduce costs to the Owatonna

Wastewater Treatment Facility’s

Participating Industrial Users, including

any Industrial User that is a small

business. Under these circumstances,

EPA has concluded that the rule will

not have a significant economic impact

on a substantial number of small

entities.

C. Is EPA Required To Submit a Rule

Report Under the Congressional Review

Act?

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and the Comptroller General of

the United States. Section 804, however,

exempts from section 801 the following

types of rules: Rules of particular

applicability, rules relating to agency

management or personnel, and rules of

agency organization, procedure, or

practice that do not substantially effect

the rights or obligations of non-agency

parties. 5 U.S.C. 804 (3). EPA is not

required to submit a rule report

regarding today’s action under section

801 because this is a rule of particular

applicability affecting just six private

sector facilities and one POTW.

D. Is an Information Collection Request

Required for This Rule Under the

Paperwork Reduction Act?

This action applies to six companies

and a single POTW and therefore

requires no information collection

activities subject to the Paperwork

Reduction Act, and therefore no

Information Collection Request (ICR)

was submitted to the Office of

Management and Budget (OMB) for

review in compliance with the

Paperwork Reduction Act, 44 U.S.C.

3501 et seq.

E. Does This Rule Trigger the

Requirements of the Unfunded

Mandates Reform Act?

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), Public

Law 104–4, establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most 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 of why the

alternative was not adopted. Before EPA

establishes any regulatory requirements

that may significantly or uniquely affect

small governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

As noted above, this rule is limited to

the OWWTF and certain sponsoring

industries. This rule will create no

federal mandate because EPA is

imposing no new enforceable duties.

EPA has also determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, and

tribal governments, in the aggregate, or

the private sector in any one year. Thus,

today’s rule is not subject to the

requirements of sections 202 and 205 of

the UMRA. Nevertheless, in developing

this rule, EPA worked closely with

MPCA and the OWWTF and received

meaningful and timely input in the

development of this rule.

F. How Does This Rule Comply With

Executive Order 13045: Protection of

Children From Environmental Health

Risks and Safety Risks?

Executive Order 13045, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997) applies to any rule that:

(1) Is determined to be ‘‘economically

significant,’’ as defined under Executive

Order 12866; and (2) concerns an

environmental health or safety risk that

EPA has reason to believe may have a

disproportionate effect on children. If

the regulatory action meets both criteria,

the Agency must evaluate the

environmental health or safety effects of

the planned rule on children, and

explain why the planned regulation is

preferable to other potentially effective

and reasonably feasible alternatives

considered by the Agency.

The EPA interprets Executive Order

13045 as applying only to those

regulatory actions that are based on

health or safety risks, such that the

analysis required under section 5–501 of

the Order has the potential to influence

the regulation. This action is not subject

to Executive Order 13045 because it is

not economically significant as defined

in Executive Order 12866. This rule

does not impose any new or amended

standards for discharged wastewater

resulting from treatment by a POTW.

With respect to the effects on children,

the collection, treatment and disposal of

wastewater occurs in a restricted system

(e.g., buried sewer lines and fenced

wastewater treatment plants) that

children are unlikely to come in contact

with on a routine basis. This rule has no

identifiable direct impact upon the

health and/or safety risks to children

and adoption of the regulatory changes

will not disproportionately affect

children. This rulemaking is thus in

compliance with the intent and

requirements of the Executive Order.

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59747

G. How Does This Rule Comply With

Executive Order 13132 on Federalism?

Executive Order 13132, entitled

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

1999), requires EPA to develop an

accountable process to ensure

‘‘meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications.’’ ‘‘Policies that have

federalism implications’’ is defined in

the Executive Order to include

regulations that have ‘‘substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among the

various levels of government.’’

Under section 6 of Executive Order

13132, EPA may not issue a regulation

that has federalism implications, that

imposes substantial direct compliance

costs, and that is not required by statute,

unless the Federal government provides

the funds necessary to pay the direct

compliance costs incurred by State and

local governments, or EPA consults with

State and local officials early in the

process of developing the proposed

regulation. EPA also may not issue a

regulation that has federalism

implications and that preempts State

law, unless the Agency consults with

State and local officials early in the

process of developing the proposed

regulation.

This rule does not have federalism

implications. It will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. The

requirements outlined in today’s rule

will not take effect unless Minnesota

chooses to adopt equivalent

requirements through revisions to

Owatonna’s NPDES permit and

Owatonna chooses to take the steps to

implement the rule and make revisions

to any local law and Industrial User

permits. Thus, the requirements of

section 6 of the Executive Order do not

apply to this rule. Although section 6 of

Executive Order 13132 does not apply

to this rule, EPA did fully coordinate

and consult with State and local

officials in developing this rule.

H. How Does This Rule Comply With

Executive Order 13084: Consultation

and Coordination With Indian Tribal

Governments?

Under Executive Order 13084, EPA

may not issue a regulation that is not

required by statute, that significantly or

uniquely affects the communities of

Indian tribal governments, and that

imposes substantial direct compliance

costs on those communities, unless the

Federal government provides the funds

necessary to pay the direct compliance

costs incurred by the tribal governments

or EPA consults with those

governments. If EPA complies by

consulting, Executive Order 13084

requires EPA to provide to the Office of

Management and Budget, in a separately

identified section of the preamble to the

rule, a description of the extent of EPA’s

prior consultation with representatives

of affected tribal governments, a

summary of the nature of their concerns,

and a statement supporting the need to

issue the regulation. In addition,

Executive Order 13084 requires EPA to

develop an effective process permitting

elected and other representatives of

Indian tribal governments ‘‘to provide

meaningful and timely input in the

development of regulatory policies on

matters that significantly or uniquely

affect their communities’’. Today’s rule

does not significantly or uniquely affect

the communities of Indian tribal

governments. There are no communities

of Indian tribal governments located in

the vicinity of Steele County.

Accordingly, the requirements of

section 3(b) of Executive Order 13084

do not apply to this rule.

I. Does This Rule Comply With the

National Technology Transfer and

Advancement Act of 1995 ‘‘NTTAA’’)?

Section 12(d) of NTTAA, Public Law

104–113, section 12(d) (15 U.S.C. 272

note) directs EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standards bodies. The NTTAA directs

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary standards. This rulemaking

sets equivalent means of expressing the

same technical standards, and of

determining compliance with those

standards. It also uses voluntary goals to

achieve pollutant reductions beyond

those required by the technical

standards. Therefore, EPA is not

considering the use of any voluntary

consensus standards.

List of Subjects in 40 CFR Part 403

Environmental protection,

Confidential business, Reporting and

recordkeeping requirements, Waste

treatment and disposal, Water pollution

control.

Dated: September 29, 2000.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, part 403, title 40, chapter I of

the Code of Federal Regulations is

amended as follows:

PART 403—GENERAL

PRETREATMENT REGULATIONS FOR

EXISTING AND NEW SOURCES OF

POLLUTION

1. The authority citation for part 403

continues to read as follows:

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

2. Section 403.19 is added to read as

follows:

§ 403.19 Provisions of specific

applicability to the Owatonna Waste Water

Treatment Facility.

(a) For the purposes of this section,

the term ‘‘Participating Industrial

Users’’ includes the following Industrial

Users in the City of Owatonna,

Minnesota: Crown Cork and Seal

Company, Inc.; Cybex International Inc.;

Josten’s Inc.—Southtown Facility; SPx

Corporation, Service Solutions Division;

Truth Hardware Corporation; and Uber

Tanning Company.

(b) For a Participating Industrial User

discharging to the Owatonna Waste

Water Treatment Facility in Owatonna,

Minnesota, when a categorical

Pretreatment Standard is expressed in

terms of pollutant concentration the

City of Owatonna may convert the limit

to a mass limit by multiplying the 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

Pretreatment Standard. Participating

Industrial Users must notify the City in

the event production rates are expected

to vary by more than 20 percent from a

baseline production rate determined by

Owatonna when it establishes a

Participating Industrial User’s initial

mass limit. To remain eligible to receive

equivalent mass limits the Participating

Industrial User must maintain at least

the same level of treatment as at the

time the equivalent mass limit is

established. Upon notification of a

revised production rate from a

Participating Industrial User, the City

will reassess the appropriateness of the

mass limit. Owatonna shall reestablish

the concentration-based limit if a

Participating Industrial User does not

59748 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

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 lll, I certify that, to the best

of my knowledge and belief, the raw

materials, industrial processes, and potential

by-products have not contributed this

pollutant to the wastewaters since filing of

the last periodic report under 40 CFR

403.12(e).’’

(e) If the average daily loading from

the Participating Industrial Users to the

Owatonna Waste Water Treatment

Facility is equal to or less than 0.68

pounds per day of chromium, 0.25

pounds per day of copper, 1.17 pounds

per day of nickel, and 1.01 pounds per

day of zinc, Owatonna may authorize a

categorical Participating Industrial User

to satisfy the reporting requirements of

§ 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 October 6, 2005.

[FR Doc. 00–25746 Filed 10–5–00; 8:45 am]

BILLING CODE 6560–50–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Parts 412, 413 and 489

[HCFA–1005–CN2]

RIN 0938–AI56

Medicare Program; Prospective

Payment System for Hospital

Outpatient Services; Delay of Effective

Date

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Correction.

SUMMARY: This document corrects

several typographical errors that

appeared in the notice of delay of

effective date for the final rule with

comment period published in the

Federal Register on June 30, 2000,

entitled ‘‘Medicare Program; Prospective

Payment System for Hospital Outpatient

Services; Delay of Effective Date.’’

EFFECTIVE DATE: August 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Janet Wellham, (410) 786–4510.

SUPPLEMENTARY INFORMATION:

Background

In FR Doc. 00–16586 of June 30, 2000

(65 FR 40535), there were several

typographical errors. The provisions in

this correction notice are effective as if

they had been included in the document

published in the Federal Register on

June 30, 2000.

Correction of Errors

In FR Doc. 00–16586 on June 30,

2000, make the following corrections:

1. On page 40535, column three, in

the DATES section, ‘‘§ 412.24’’ is

corrected to read ‘‘§ 413.24’’, and

§ 489.24(h) is corrected to read

‘‘§ 489.24.’’

2. On page 40537, column one, the

third full paragraph, line two,

‘‘§ 412.24’’ is corrected to read

‘‘§ 413.24’’, and ‘‘§ 489.24(h)’’ is

corrected to read ‘‘§ 489.24.’’

(Catalog of Federal Domestic Assistance

Program No. 93.774, Medicare—

Supplementary Medical Insurance Program)

Dated: September 21, 2000.

Brian P. Burns,

Deputy Assistant Secretary for Information

Resources Management.

[FR Doc. 00–25498 Filed 10–5–00; 8:45 am]

BILLING CODE 4120–01–P

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Part 422

[HCFA–1030–CN2]

RIN 0938–AI29

Medicare Program; Establishment of

the Medicare+Choice Program;

Correction

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Final rule with comment period;

Correction.

SUMMARY: On June 29, 2000, we

published in the Federal Register, at 65

FR 40170, a final rule with comment

period that responded to comments on

the June 26, 1998 interim final rule that

implemented the Medicare+Choice

(M+C) program and made revisions to

those regulations where warranted. We

also made revisions to the regulations

that were necessary to reflect the

changes to the M+C program resulting

from the Balanced Budget Refinement

Act of 1999. This document corrects

omissions made in the June 29, 2000

document regarding deeming status.

EFFECTIVE DATE: July 31, 2000.