59732 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

the Acting Director of the Virginia

Department of the Environmental

Quality on April 14, 1998.

§ 52.2450 [Amended]

3. Section 52.2450 is amended by

removing and reserving paragraph (e).

[FR Doc. 00–25470 Filed 10–5–00; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 132

[FRL–6881–9]

Identification of Approved and

Disapproved Elements of the Great

Lakes Guidance Submission From the

State of New York, and Final Rule

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: EPA published the final

Water Quality Guidance for the Great

Lakes System (the Guidance) on March

23, 1995. Section 118(c) of the Clean

Water Act (CWA) requires the Great

Lakes States of Illinois, Indiana,

Michigan, Minnesota, New York, Ohio,

Pennsylvania and Wisconsin to adopt

within two years of publication of the

final Guidance (i.e., March 23, 1997)

minimum water quality standards,

antidegradation policies and

implementation procedures that are

consistent with the Guidance, and to

submit them to EPA for review and

approval. Each of the Great Lakes States

made those submissions.

Today, EPA is taking final action on

the Guidance submission of the State of

New York. EPA’s final action consists of

approving those elements of the State’s

submission that are consistent with the

Guidance, disapproving those elements

that are not consistent with the

Guidance, and specifying in a final rule

the elements of the Guidance that apply

in the portion of New York State within

the Great Lakes System where the State

either failed to adopt required elements

or adopted elements that are

inconsistent with the Guidance.

EFFECTIVE DATE: November 6, 2000.

ADDRESSES: The public docket for EPA’s

final actions with respect to the

Guidance submission of the State of

New York is available for inspection

and copying at U.S. EPA Region 2, 290

Broadway, New York, N.Y. 10007 by

appointment only. Appointments may

be made by calling Wayne Jackson

(telephone 212–637–3807).

FOR FURTHER INFORMATION CONTACT:

Mark Morris (4301), U.S. EPA, Ariel

Rios Building, 1200 Pennsylvania

Avenue, NW, Washington, DC 20460

(202–260–0312); or Wayne Jackson, U.S.

EPA Region 2, 290 Broadway, New

York, N.Y. 10007 (212–637–3807).

SUPPLEMENTARY INFORMATION:

I. Discussion

A. Potentially Affected Entities

Entities potentially affected by today’s

action are those discharging pollutants

to waters of the United States in the

Great Lakes System in the State of New

York. Potentially affected categories and

entities include:

Category Examples of Potentially

Affected Entities

Industry .......... Industries discharging to waters within the Great Lakes

System as defined in 40

CFR 132.2 in New York

State.

Municipalities Publicly-owned treatment

works discharging to waters within the Great Lakes

System as defined in 40

CFR 132.2. in New York

State.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding regulated entities

likely to be affected by these final

actions. This table lists the types of

regulated entities that EPA believes

could be affected by this action. Other

types of entities not listed in the table

could also be affected. To determine

whether your facility may be affected by

this final action, you should examine

the definition of ‘‘Great Lakes System’’

in 40 CFR 132.2 and examine 40 CFR

132.2 which describes the part 132

regulations. If you have any questions

regarding the applicability of this action

to a particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

B. Background

On March 23, 1995, EPA published

the Guidance. See 60 FR 15366; 40 CFR

part 132. The Guidance establishes

minimum water quality standards,

antidegradation policies, and

implementation procedures for the

waters of the Great Lakes System in the

States of Illinois, Indiana, Michigan,

Minnesota, New York, Ohio,

Pennsylvania and Wisconsin.

Specifically, the Guidance specifies

numeric criteria for selected pollutants

to protect aquatic life, wildlife and

human health within the Great Lakes

System and provides methodologies to

derive numeric criteria for additional

pollutants discharged to these waters.

The Guidance also contains minimum

implementation procedures and an

antidegradation policy.

Soon after being published, the

Guidance was challenged in the U.S.

Court of Appeals for the District of

Columbia Circuit. On June 6, 1997, the

Court issued a decision upholding

virtually all of the provisions contained

in the 1995 Guidance. American Iron

and Steel Institute, et al. v. EPA (AISI),

115 F.3d 979 (D.C. Cir. 1997). The Court

vacated the human health criterion for

polychlorinated biphenyls (PCBs) and

the acute aquatic life criterion for

selenium, and the provisions of the

Guidance ‘‘insofar as it would eliminate

mixing zones for (bioaccumulative

chemicals of concern (BCCs)) and

impose (water quality-based effluent

limitations (WQBELs)) upon internal

facility waste streams.’’ 115 F.3d at 985.

On October 9, 1997, EPA published a

document revoking the PCB human

health criteria pursuant to the Court’s

decision. 62 FR 52922. On April 23,

1998, EPA published a second notice

amending the 1995 Guidance to remove

the BCC mixing zone provisions from 40

CFR part 132 (found in procedure 3.C.

of appendix F) and to remove language

in the Pollutant Minimization Program

provisions (procedure 8.D. of appendix

F) that might imply that permitting

authorities are required to impose

WQBELs on internal waste streams or to

specify control measures to meet

WQBELs. 63 FR 20107. On June 2, 2000,

EPA published a third document

withdrawing the acute criteria for

selenium. 65 FR 35283.

40 CFR 132.4 requires the Great Lakes

States to adopt water quality standards,

antidegradation policies, and

implementation procedures for waters

within the Great Lakes System

consistent with the Guidance or be

subject to EPA promulgation. 40 CFR

132.5(d) provides that, where a State

makes no submission to EPA, the

Guidance shall apply to discharges to

waters in that State upon EPA’s

publication of a final rule indicating the

effective date of the part 132

requirements in that jurisdiction.

On July 1, 1997, the National Wildlife

Federation filed suit alleging that EPA

had a non-discretionary duty to

promulgate the Guidance for any State

that failed to adopt standards, policies

and procedures consistent with the

Guidance. National Wildlife Federation

v. Browner, Civ. No. 97–1504–HHK

(D.D.C.). EPA negotiated a consent

decree providing that the EPA

Administrator must sign, by February

27, 1998, a Federal Register document

making part 132 effective in any State in

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59733

the Great Lakes Basin that failed to

make a submission to EPA by that date

under 40 CFR part 132. However, all of

the Great Lakes States made complete

submissions to EPA on or before the

February deadline. On March 2, April

14, April 20 and April 28, 1998, EPA

published in the Federal Register

documents of its receipt of each of the

States’ Great Lakes Guidance

submissions and a solicitation of public

comment on the National Pollutant

Discharge Elimination System (NPDES)

portions of those submissions. 63 FR

10221; 63 FR 18195; 63 FR 19490; 63 FR

23285.

40 CFR 132.5(f) provides that, once

EPA completes its review of a State’s

submission, it must either publish

notice of approval of the State’s

submission in the Federal Register or

issue a letter notifying the State that

EPA has determined that all or part of

its submission is inconsistent with the

CWA or the Guidance, and identify any

changes needed to obtain EPA approval.

If EPA issues a letter to the State making

findings of inconsistencies, the State

then has 90 days to make the necessary

changes. If the State fails to make the

necessary changes, EPA must publish a

document in the Federal Register

identifying the approved and

disapproved elements of the submission

and a final rule identifying the

provisions of the Guidance that will

apply to discharges within the State.

On November 15, 1999, the National

Wildlife Federation and the Lake

Michigan Federation filed suit alleging

that EPA had a non-discretionary duty

to take action on the Great Lakes States’

Guidance submissions. National

Wildlife Federation v. Browner, Civ. No.

99–3025–HHK (D.D.C.). EPA negotiated

a consent decree providing that EPA

must sign a Federal Register Notice by

July 31, 2000, taking the action required

by 40 CFR 132.5 on the Guidance

submissions of the States of Illinois,

Indiana, Michigan, Minnesota, Ohio and

Pennsylvania; and Federal Register

Notices by September 29, and October

31, 2000, taking the action required by

40 CFR 132.5 on the Guidance

submissions of the States of New York

and Wisconsin, respectively. Today’s

Federal Register Notice fulfills EPA’s

obligations under that Consent Decree

with respect to the State of New York.

EPA has completed its final actions with

respect to the States of Michigan, Ohio,

Indiana, Illinois, Minnesota, and

Pennsylvania, and will separately take

final action with respect to Wisconsin.

EPA notes that the States’ Guidance

submissions may contain provisions

that revise its NPDES program or water

quality standards in areas or with

respect to regulated entities not covered

by the Guidance. EPA is not taking

action at this time to either approve or

disapprove any such provisions.

EPA has conducted its review of the

State of New York’s submission in

accordance with the requirements of

section 118(c)(2) of the CWA and 40

CFR part 132. Section 118 requires that

States adopt policies, standards and

procedures that are ‘‘consistent with’’

the Guidance. EPA has interpreted the

statutory term ‘‘consistent with’’ to

mean ‘‘as protective as’’ the

corresponding requirements of the

Guidance. Thus, the Guidance gives

States the flexibility to adopt

requirements that are not the same as

the Guidance, provided that the State’s

provisions afford at least as stringent a

level of environmental protection as that

provided by the corresponding

provision of the Guidance. In making its

evaluation, EPA has considered the

language of each State’s standards,

policies and procedures, as well as any

additional information provided by the

State clarifying how it interprets or will

implement its provisions.

Where EPA has promulgated a final

rule that identifies a provision of the

Guidance that shall apply in New York,

EPA explains below its reasons for

concluding that New York failed to

adopt requirements that are consistent

with the Guidance. Additional

explanation of EPA’s conclusions are

contained in EPA’s correspondence

with New York State (identified in

relevant sections below) where EPA

initially identified inconsistencies in

the State’s submission. Notice of the

availability of this letter was published

in the Federal Register and EPA has

considered all public comments

received regarding any conclusions as to

whether New York State had adopted

provisions consistent with the

Guidance.

In this proceeding, EPA has reviewed

the State’s submission to determine its

consistency with 40 CFR part 132. EPA

has not reopened part 132 in any

respect, and today’s action does not

affect, alter or amend in any way the

substantive provisions of part 132. To

the extent any members of the public

commented during this proceeding that

any provision of part 132 is unjustified

as a matter of law, science or policy,

those comments are outside the scope of

this proceeding.

With regard to those elements of the

State submission being approved by

EPA, EPA is approving those provisions

as amendments to New York State’s

NPDES permitting program under

section 402 of the CWA and as revisions

to New York State’s water quality

standards under section 303 of the

CWA. Today’s notice identifies those

approved elements. Additional

explanations of EPA’s review of and

conclusions regarding New York State’s

submission, including the specific State

provisions that EPA is approving, are

contained in the administrative record

for today’s actions in documents

prepared for New York State entitled,

‘‘New York State Provisions Being

Approved as Being Consistent With the

Guidance,’’ ‘‘Analysis of Whether New

York State Has Adopted Requirements

Consistent With the Guidance’’ and

‘‘Analysis of Steps Taken By New York

State in Response to EPA’s 90-Day

Letter.’’

A. Today’s Final Action

On April 11, 2000, EPA issued a letter

notifying the New York State

Department of Environmental

Conservation (NYSDEC) that, while the

State of New York had generally

adopted requirements consistent with

the Guidance, EPA concluded that

portions of the standards, policies and

procedures adopted by the State were

not consistent with corresponding

provisions of the Guidance. On April

28, 2000, EPA published in the Federal

Register a notice of and solicitation of

public comment on its April 11, 2000

letter. 65 FR 24957. EPA has completed

its review of all public comments on the

April 11, 2000, letter and has

determined that, with two exceptions

described below, New York State has

adopted requirements consistent with

all aspects of the Guidance. Specifically,

New York State has adopted

requirements consistent with, and EPA

is therefore approving those elements of

the State’s submissions which

correspond to: The definitions in 40

CFR 132.2; the water quality criteria for

the protection of aquatic life, human

health and wildlife in tables 1–4 of part

132, with two exceptions as described

below; the methodologies for

development of aquatic life criteria and

values, bioaccumulation factors, human

health criteria and values and wildlife

criteria in appendices B–D; the

antidegradation policy in Appendix E;

and the implementation procedures in

appendix F. As explained more fully

below, New York State has not adopted

requirements consistent with (1) the

chronic numeric aquatic life criteria in

Table 2 of part 132 for Class D waters

in the Great Lakes Basin, and (2) the

wildlife criterion for mercury in Table 4

of part 132.

EPA’s April 11, 2000, letter concluded

that some of the provisions that EPA is

now approving authorized the State to

act consistent with the Guidance, but

59734 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

provided inadequate assurance that the

State would exercise its discretion

consistent with the Guidance. To

provide this assurance, EPA and

NYSDEC have worked together to

develop an amendment to the National

Pollutant Discharge Elimination System

(NPDES) Memorandum of Agreement

(MOA) between EPA Region II and

NYSDEC. By this amendment NYSDEC

has committed to always exercise its

discretion under the MOA provisions in

a manner consistent with the Guidance.

Pursuant to 40 CFR 123.44(c)(3) and

123.63(a)(4), the State is required to

comply with commitments made in its

MOA or risk EPA objection to permits

and even program withdrawal. This

MOA has demonstrated to EPA that the

State will implement the approved

provisions consistent with the

Guidance. The specific provisions that

EPA is approving, and EPA’s full

rationale for approving these provisions,

are set forth in the documents entitled

‘‘New York State Provisions Approved

as Being Consistent With the

Guidance,’’ ‘‘Analysis of Whether New

York State Has Adopted Requirements

Consistent With the Guidance’’ and

‘‘Analysis of Steps Taken By New York

State in Response to EPA’s 90-Day

Letter’’ included in the record for this

action.

EPA has determined that the failure of

New York State to apply the chronic

aquatic life criteria in section 703.5 of

Title 6 of the New York State Codes,

Rules and Regulations (NYCRR) to

waters in the Great Lakes Basin

classified as ‘‘Class D’’ surface waters

under 6NYCRR 701.9 is inconsistent

with 40 CFR 132.3(b) and 132.4(d)(2).

These provisions of the Guidance

require States to adopt and apply both

acute and chronic numeric aquatic life

criteria to all waters in the Great Lakes

System. In the past, NYSDEC’s

classification system for the 3,312

waterbody segments contained in the

New York State portion of the Great

Lakes System has been based on the use

of a single aquatic life-based criterion

for all classified waters in the State: (1)

Classes A–C, waters designated for fish

propagation, were assigned chronic

criteria only; and, (2) Class D, waters

designated for fish survival, were

assigned acute criteria only.

NYSDEC has added acute criteria to

all Class A–C waters in the State.

However, the State has not included

chronic criteria for Class D waters.

Rather, New York is in the process of

completing a statewide reclassification

effort which will result in the upgrade

of the vast majority of segments in the

Great Lakes System to classifications

which include both acute and chronic

aquatic life criteria. For the remaining

Class D waters, use attainability

analyses (UAAs) will be completed,

consistent with the site-specific

modification procedure described in the

Guidance, to justify a decision to

impose no chronic criteria at a site

where it is shown that there is no reason

to apply such criteria—that no

organisms ‘‘occur at the site’’ for time

periods long enough to suffer chronic

effects.

While the State is currently in the

process of completing its reclassification

effort, there are 940 waterbody segments

in the New York State portion of the

Great Lakes System which have not yet

been addressed through the State’s

process and currently lack chronic

water quality criteria to protect aquatic

life. Consequently, EPA finds that New

York State’s failure to apply chronic

aquatic life criteria to these waters is not

consistent with 40 CFR 132.3(b) and

132.4(d)(2). EPA, therefore, disapproves

6NYCRR 703.5 and 701.9 insofar as

these provisions fail to apply chronic

water quality criteria for the protection

of aquatic life to ‘‘Class D’’ waters and

has determined that 40 CFR 132.4(d)(2)

shall apply to waters which are

currently classified as ‘‘Class D’’ in the

Great Lakes System in the State of New

York.

40 CFR 132.4(d) states: ‘‘The water

quality criteria and values adopted or

developed pursuant to [the Guidance

criteria methodologies] shall apply as

follows: * * * (2) The chronic water

quality criteria and values for the

protection of aquatic life or site-specific

modifications thereof shall apply to all

waters of the Great Lakes System.’’ By

making this section applicable to ‘‘Class

D’’ waters in the Great Lakes System in

New York, today’s rule has the effect of

making the chronic aquatic life criteria

or values adopted or developed by New

York contained in 6NYCRR 703.5, or

site-specific modifications of the

criteria, applicable to such waters. As

explained in the record for today’s

action, EPA has concluded that the

chronic aquatic life criteria adopted by

New York, the State’s methodologies for

developing aquatic life criteria and

values, and the State’s procedure for

site-specific modifications to such

criteria, are all consistent with the

Guidance. Under today’s rule, those

criteria, as well as any new criteria,

values and site-specific criteria adopted

or developed by the State pursuant to its

approved methodologies and

procedures, and approved by EPA, will

also apply to Class D waters.

EPA understands that New York State

is in the process of completing the

necessary rulemaking to revise its

regulations to upgrade the vast majority

of segments in the Great Lakes System

to classifications which include both

acute and chronic aquatic life criteria, or

to perform the necessary UAAs

(consistent with the State’s approved

site-specific criteria methodology) to

show that chronic aquatic life criteria

for certain Class D waters are not

needed. EPA will work closely with

NYSDEC to insure that its revised

regulations will be consistent with the

Guidance. NYSDEC will then submit its

UAAs and revised regulations to EPA

for review pursuant to section 303(c) of

the Clean Water Act as a revision to its

water quality standards regulations.

Because today’s rule only applies to

Class D waters in the Great Lakes

System in the State, a water segment

that is upgraded to a higher

classification (to which the State’s

chronic criteria apply under the State’s

standards) will remove the water

segment from the coverage of today’s

rule. Also, under today’s rule, if the

State submits, and EPA approves, an

analysis that demonstrates, consistent

with the State’s procedure for sitespecific modifications to criteria, that

application of the chronic criteria is not

needed, such a site-specific

modification to the criteria will apply to

that water segment.

EPA has also determined that New

York State’s mercury criterion for the

protection of wildlife in the waters of

the Great Lakes System at 6NYCRR

703.5 is inconsistent with 40 CFR

132.3(d), and Table 4 of 40 CFR part

132. States are required to adopt criteria

for the protection of wildlife which are

as protective as the numeric criteria

included in Table 4 of 40 CFR part 132.

NYSDEC has adopted a wildlife

criterion for mercury, which is

expressed as the dissolved form of the

metal. This criterion has been calculated

based upon the use of an alternative

percent of methyl mercury using New

York State-specific data. The State’s

wildlife criterion is 2.6 ng/L (dissolved);

EPA’s criterion is 1.3 ng/L (total

recoverable). New York State used

EPA’s conversion factor of 0.85 in its

derivation of the dissolved-based

wildlife criterion. Based on the

application of EPA’s conversion factor

of 0.85, New York State’s dissolvedbased wildlife criterion for mercury

equates to 3.06 ng/L total recoverable for

wildlife (compared to the Guidance

wildlife criterion of 1.3 ng/L). Based

upon the comparison of State’s wildlife

criterion to the wildlife criterion in the

Guidance on a total recoverable basis,

EPA has determined that the New York

State wildlife criterion for mercury is

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59735

not as protective as the wildlife criterion

in the Guidance.

Based upon the above, EPA finds that

New York State has failed to adopt a

wildlife criterion for mercury that is

consistent with Table 4 of part 132, as

required by 40 CFR 132.3(c). EPA,

therefore, disapproves the State’s

wildlife criterion for mercury in the

waters of the Great Lakes System at

6NYCRR 703.5, and has determined that

the wildlife criterion for mercury

contained in Table 4 to 40 CFR part 132

shall apply to the waters of the Great

Lakes System in the State of New York.

As discussed above, NYSDEC has

adopted human health and aquatic life

criteria for mercury that are as

protective as the mercury criteria in

Tables 2 and 3 of part 132. EPA notes

that under certain conditions New York

State’s human health criterion as

implemented may be as protective of

wildlife as the mercury wildlife

criterion in the Guidance in Table 4,

however, this is not always the case.

EPA understands that New York State

is in the process of completing the

necessary rulemaking to adopt the

Guidance wildlife criterion of 1.3 ng/L

(total recoverable) for mercury, which

will be applicable to the waters of the

Great Lakes System in the State of New

York. EPA will work closely with

NYSDEC to insure that this criterion

will be consistent with the Guidance.

NYSDEC will then submit its criterion

to EPA for review pursuant to section

303(c) of the Clean Water Act, and, if

EPA approves those revisions, EPA will

revise its regulations so that the mercury

wildlife criterion in Table 4 of 40 CFR

part 132 will no longer apply to the

waters within the Great Lakes System in

the State of New York.

A. Public Comments

EPA received two comments in

response to its Federal Register

document of its receipt of the

substantial NPDES program

modification component of the State’s

Guidance submission. These

commenters stated general support for

approval of the State’s submission. EPA

received one comment on the Federal

Register notice of the availability of

EPA’s April 11, 2000 letter to the State

of New York. EPA has responded to that

commenter in a document entitled

‘‘Response to Comments Received on

EPA’s April 11, 2000 Letter to the New

York State Department of

Environmental Conservation (NYSDEC)

on New York State’s Great Lakes

Initiative Submission’’ that has been

included as part of the record in this

matter. The following is a summary of

EPA’s responses to the significant points

of these comments.

Comment: The commenter asserted

that EPA’s regulatory determinations are

being made without affected parties

having any chance to review the

Agency’s reasoning or to raise issues as

to the validity of that reasoning, in

violation of the Administrative

Procedure Act and EPA’s public

participation regulations at 40 CFR part

25.

Response: The final rule being

promulgated today makes certain

provisions of 40 CFR part 132

applicable to discharges in New York

State within the Great Lakes System.

Those provisions were adopted after

publication of a proposed rule for public

comment. See 58 FR 20802 (April 16,

1993). EPA is not modifying those

provisions, but merely making them

effective in accordance with 40 CFR

132.5(f)(2). Therefore, the public had a

full opportunity to comment on the

contents of today’s rule. Moreover,

public comment was also received

regarding EPA’s review of the New York

State submission. EPA provided public

notice of the availability of, and

solicited comment on, the NPDES

portions of the New York State

Guidance submission in a Federal

Register document (63 FR 19490) dated

April 20, 1998. In a Federal Register

document (65 FR 24957) dated April 28,

2000, EPA subsequently provided notice

of the availability of a letter to the State

of New York in which EPA provided (a)

detailed explanations of the bases for its

findings that the State had not adopted

provisions consistent with certain

provisions of the Great Lakes Guidance

and (b) its preliminary conclusions that,

with the exception of those findings, the

State had adopted provisions consistent

with the Guidance. EPA also solicited

comment on all aspects of this letter,

and has considered and responded to all

comments received before taking today’s

final action. Consequently, EPA has

complied with all applicable public

participation requirements.

Comment: The commenter has

indicated that both EPA and New York

State must commit to holding public

comment periods on the draft of the

addendum to the NPDES Memorandum

of Agreement (MOA) that the agencies

intend to enter into for the purpose of

implementing certain Great Lakes

Initiative (GLI) requirements in New

York.

Response: Under 40 CFR 123.62(b)(2)

and 132.5(e), whenever EPA determines

that a proposed revision to a State

NPDES program is substantial, EPA

must provide notice and allow public

comment on the proposed revisions. On

April 20, 1998, EPA published notice in

the Federal Register (63 FR 19490)

‘‘Notice of Proposed Revisions to the

Approved Program to Administer the

National Pollutant Discharge

Elimination System Permitting Program

in New York Resulting In Part From

Adoption of the Water Quality Guidance

for the Great Lakes System.’’ In that

document EPA sought public comment

concerning whether EPA should

approve the GLI-related revisions to

New York’s NPDES program because, as

stated in the document, EPA believes

that it is appropriate to consider the

NPDES component of New York’s

submission to be a substantial program

modification. The only comments

received in response to the notice were

two recommendations in support of the

EPA approving these revisions.

On April 28, 2000, the public was

provided with a second opportunity to

comment on EPA’s review of the GLIrelated provisions of New York’s NPDES

program when EPA published a Federal

Register document (65 FR 24957)

soliciting public comment on its April

11, 2000, letter (i.e., 90-day letter) to

NYSDEC commenting on New York’s

GLI submission. The 90-day letter

provided a detailed explanation of

EPA’s views regarding New York’s

revisions to its NPDES program. The

commenter seems to imply that, not

only is EPA required to solicit public

comment on the substantial program

modification submitted by New York,

but that EPA must also solicit public

comment because the revisions to the

NPDES MOA itself constitutes a

substantial program modification. EPA

disagrees. The revisions to the MOA do

not substantially modify New York’s

NPDES program for they do not enact

any new authorities, or substantially

modify the State’s program submitted by

the State to EPA in February 1998 and

made available for public comment at

that time. Rather, the revisions to the

MOA simply clarify the manner in

which New York intends to implement

its existing authorities to address the

concerns raised in EPA’s 90-day letter,

which itself was also subject to notice

and comment. The revisions to the

MOA ensure that New York will

administer its existing NPDES program

consistent with the requirements of the

Guidance and simply set forth how New

York’s existing authorities for

administering the NPDES program will

be implemented in the context of the

Guidance. Therefore, the MOA is not

itself a substantial program modification

requiring public comment.

Comment: The commenter states that

EPA’s analysis regarding many of these

provisions focuses on whether New

59736 Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations

York’s GLI rules are written in a

substantially similar way as the Federal

GLI guidance. However, the proper

focus on whether New York’s GLI rules

are consistent with (as protective as) the

Federal GLI rules should be on

environmental results. As such, EPA’s

evaluation should be based on whether

the State rules achieve or exceed the

level of protection provided in the

Federal guidance, and should not

involve a strict accounting of whether

the language of the Federal GLI rules

was incorporated into the State rules.

Response: EPA agrees with the

commenter’s characterization of the

nature of EPA’s evaluation. The

Guidance gives States the flexibility to

adopt requirements that are not the

same as the Guidance provided that the

State’s provisions afford at least as

stringent a level of environmental

protection as that provided by the

corresponding provision of the

Guidance. In making these evaluations,

EPA is also mindful that a major goal of

the Guidance and section 118(c) of the

CWA was to achieve more consistency

in the level of protection across the

entire Great Lakes Basin. To achieve this

goal requires not only a comparable

level of protection as defined by the

water quality standards, but also

implementation procedures that are as

protective as each corresponding

procedure in the Guidance. EPA has

carefully reviewed New York State’s

water quality standards, antidegradation

policies and implementation procedures

for consistency with the Guidance,

taking into account this flexibility, and

has not required the State to incorporate

the Guidance as written, provided the

State’s procedures can be expected to

achieve the same level of protection as

the Guidance. With two exceptions,

EPA has found New York State’s

submission to be consistent with 40 CFR

part 132. EPA’s review was not based

upon a verbatim comparison of New

York’s submission with the Guidance.

In most instances EPA has concluded

that New York State’s water quality

standards, antidegradation policies and

implementation procedures are as

protective as the Guidance’s

requirements. In addition, where

appropriate EPA and New York State

have agreed to facilitate the approval

process by entering into an Amendment

to their Memorandum of Agreement

regarding the State’s approved NPDES

program by which New York commits to

exercise its discretion consistent with

the Guidance.

Comment: The commenter states that

in explaining its disapproval of New

York’s wildlife water quality criterion

for mercury, EPA stated that 40 CFR

132.4(d) requires that States adopt

aquatic life, human health, and wildlife

criteria, and that each type of criteria

must be as protective as the

corresponding Federal criteria. The

commenter states that he believes that

EPA’s interpretation of this provision of

the Federal GLI rule is incorrect. 40 CFR

132.4(d) requires States to apply criteria

adopted pursuant to the methodologies

or site-specific modification procedures

for aquatic life, human health, and

wildlife, to all waters of the Great Lakes

System. The commenter argues that

New York State has complied with this

requirement, as its wildlife criterion for

mercury does apply to all State waters

within the Great Lakes System. The

commenter further states that this

provision does not require States to

adopt all types of criteria, of which each

type must be at least as stringent as the

criteria in Tables 1 through 4 of 40 CFR

part 132.

The commenter also states that

because New York’s human health

criterion for mercury is more protective

than EPA’s wildlife criterion for

mercury, EPA should not require New

York to adopt EPA’s wildlife criterion

for mercury.

Response: EPA disagrees with the

commenter’s position regarding the

requirements in the Guidance, which

address State adoption of aquatic life,

human health, and wildlife criteria.

While, as the commenter states, 40 CFR

132.4(d) requires States to apply criteria

adopted pursuant to the methodologies

or site-specific modification procedures

for aquatic life, human health, and

wildlife, to all waters of the Great Lakes

System, 40 CFR 132.5(g)(1) requires that

for pollutants in Tables 1, 2, 3 and 4 of

this part, States must adopt numeric

criteria which are as protective as

‘‘each’’ of the numeric criteria in Tables

1, 2, 3 and 4 of this part taking into

account any site-specific modifications

in accordance with Procedure 1 of

Appendix F of the Guidance. New York

State’s wildlife criterion for mercury of

2.6 ng/L (dissolved) is less stringent

than the criterion of 1.3 ng/L (total

recoverable) found in Table 4 of the

Guidance. Using EPA’s conversion

factor of 0.85 to convert New York

State’s dissolved-based wildlife

criterion for mercury to a total

recoverable criterion results in total

recoverable-based wildlife criterion for

mercury of 3.06 ng/L compared to the

Guidance wildlife criterion of 1.3 ng/L.

Based upon the above comparison of the

State’s wildlife criterion to the wildlife

criterion in the Guidance on a total

recoverable basis, EPA has determined

that the New York State wildlife

criterion for mercury is not as protective

as the wildlife criterion in Table 4 of the

Guidance. Therefore, EPA found that

New York State’s wildlife criterion for

mercury was not consistent with the

requirements of 40 CFR 132.5(g)(1). As

such, EPA disapproves of New York

State’s wildlife criterion for mercury at

6NYCRR 703.5, and has determined that

the wildlife criterion for mercury

contained in Table 4 to 40 CFR part 132

shall apply for discharges into the Great

Lakes System in the State of New York.

EPA disagrees that the State’s

adoption of a human health criterion for

mercury obviates the requirement for

the State to adopt a wildlife criterion as

protective as the Guidance. While,

under some circumstances, the State’s

human health criterion for mercury may

result in controls on permitted

discharges that are as stringent as would

be developed using EPA’s wildlife

criterion, EPA has concluded that this

would not necessarily be true in all

cases, depending on site-specific

conditions, in particular the amount of

total suspended solids in the receiving

water. Moreover, to approve the State’s

mercury human health criteria as

consistent with EPA’s wildlife criterion,

EPA would have to assume that the

State would always implement its

human health criteria in such a way as

to ensure protection of wildlife as well.

Because exposure scenarios for human

health and wildlife differ, however,

States have flexibility to adopt differing

approaches in implementing these two

types of criteria. See, e.g., 40 CFR part

132, appendix F, procedure 3.E.1

(describing different stream design

assumptions for different kinds of

criteria). Moreover, while New York’s

human health criteria currently apply to

all waters, the State has flexibility under

the Guidance to apply less stringent

criteria to specific waters where

justified by local rates of fishconsumption and bioaccumulation

factors (see 40 CFR part 132, appendix

F, procedure 1.A.4.b.). EPA believes that

applying the Federal mercury wildlife

criterion to waters in the Great Lakes

System will ensure the protection of

wildlife without inappropriately

limiting the State’s discretion as to how

it implements its human health criteria

or burdening EPA with overseeing the

State’s application of its human health

criteria to ensure that wildlife will be

protected as well.

Comment: In the case of several State

implementation procedures for which

EPA had identified concerns in the

April 11, 2000 letter, the commenter

stated that EPA should approve these

State implementation procedures as

being as protective as the Federal

procedures.

Federal Register / Vol. 65, No. 195 / Friday, October 6, 2000 / Rules and Regulations 59737

Response: The State of New York has

entered into an amendment to the MOA

with EPA regarding the State’s National

Pollutant Discharge Elimination System

program. This MOA addresses each of

EPA’s concerns regarding the State’s

implementation procedures. Therefore,

EPA is approving the State’s

implementation procedures.

EPA has responded to the specific

comments on each of the individual

State implementation procedures in a

document entitled ‘‘Response to

Comments Received on EPA’s April 11,

2000 Letter to the New York State

Department of Environmental

Conservation (NYSDEC) on New York

State’s Great Lakes Initiative

Submission’’ that has been included as

part of the record in this matter.

B. Consequences of Today’s Action

As a result of today’s action, the

Guidance provisions specified in

today’s rule apply in the Great Lakes

System in New York State until such

time as the State adopts requirements

consistent with the specific Guidance

provisions at issue, and EPA approves

those State requirements and revises the

rule so that the provisions no longer

apply in New York State.

II. ‘‘Good Cause’’ Under the

Administrative Procedure Act

Section 553 of the Administrative

Procedure Act, 5 U.S.C. 553 (b)(3)(B),

provides that, when an agency for good

cause finds that notice and public

procedure are impracticable,

unnecessary or contrary to the public

interest, the agency may issue a rule

without providing notice and an

opportunity for public comment. EPA

has determined that there is good cause

for making today’s rule final without

prior proposal and opportunity for

comment because EPA finds it

unnecessary and contrary to the public

interest. Today’s rule does not

promulgate any new regulatory

provisions. Rather, in accordance with

the procedures in 40 CFR 132.5(f),

today’s rule identifies the provisions of

part 132 promulgated previously by

EPA that shall apply to discharges in

New York State within the Great Lakes

System. Those provisions have already

been subject to a notice of proposed

rulemaking, and publication of a new

proposed rule is therefore unnecessary.

See 58 FR 20802 (April 16, 1993). In

addition, while EPA’s approval/

disapproval decisions described in this

notice do not constitute rulemaking,

EPA has nonetheless received

substantial public comment on these

decisions. See 63 FR 19490 (April 20,

1998) (notice of receipt of State

Guidance submission and request for

comment); 65 FR 24957 (April 28, 2000)

(notice of letter identifying

inconsistencies and request for

comment). EPA also believes the public

interest is best served by fulfilling the

CWA’s requirements without further

delay and publication of a notice of

proposed rulemaking therefore would

be contrary to the public interest. Thus,

notice and public procedure are

unnecessary. EPA finds that this

constitutes good cause under 5 U.S.C.

553(b)(B).

III. Administrative Requirements

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is

not a ‘‘significant regulatory action’’ and

is therefore not subject to review by the

Office of Management and Budget.

Because the agency has made a ‘‘good

cause’’ finding that this action is not

subject to notice-and-comment

requirements under the Administrative

Procedure Act or any other statute, as

described in section II, above, it is not

subject to the regulatory flexibility

provisions of the Regulatory Flexibility

Act (5 U.S.C. 601 et seq.), or to sections

202 and 205 of the Unfunded Mandates

Reform Act of 1995 (UMRA) (Pub. L.

104–4). In addition, because this action

does not promulgate any new

requirements, but only makes certain

existing provisions of 40 CFR part 132

effective in New York State, it does not

impose any new costs. The costs of part

132 were considered by EPA when it

promulgated that regulation. Therefore,

today’s rule does not significantly or

uniquely affect small governments or

impose a significant intergovernmental

mandate, as described in sections 203

and 204 of UMRA, or significantly or

uniquely affect the communities of

Tribal governments, as specified by

Executive Order 13084 (63 FR 27655,

May 10, 1998). This rule will not have

substantial direct effects on the State, on

the relationship between the national

government and the State, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132 (64 FR 43255,

August 10, 1999). This rule also is not

subject to Executive Order 13045 (62 FR

19885, April 23, 1997), because it is not

economically significant.

This action does not involve technical

standards; thus, the requirements of

section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (15 U.S.C. 272 note) do not

apply. The rule also does not involve

special consideration of environmental

justice related issues as required by

Executive Order 12898 (59 FR 7629,

February 16, 1994). In issuing this rule,

EPA has taken the necessary steps to

eliminate drafting errors and ambiguity,

minimize potential litigation, and

provide a clear legal standard for

affected conduct, as required by Section

3 of Executive Order 12988 (61 FR 4729,

February 7, 1996). This rule does not

impose an information collection

burden under the provisions of the

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.).

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

Agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This rule is not a major rule as defined

by 5 U.S.C. 804(2). This rule will be

effective November 6, 2000.

List of Subjects in 40 CFR Part 132

Environmental protection,

Administrative practice and procedure,

Great Lakes, Indian-lands,

Intergovernmental relations, Reporting

and recordkeeping requirements, Water

pollution control.

Dated: September 29, 2000.

Carol M. Browner,

Administrator.

For the reasons set forth in the

preamble, EPA amends 40 CFR part 132

as follows:

PART 132—WATER QUALITY

GUIDANCE FOR THE GREAT LAKES

SYSTEM

1. The authority citation for part 132

continues to read as follows:

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

2. Section 132.6 is amended by

adding paragraphs (d) and (e) to read as

follows:

§ 132.6 Application of part 132

requirements in Great Lakes States and

Tribes.

* * * * *

(d) Effective November 6, 2000,

§ 132.4(d)(2) shall apply to waters

designated as ‘‘Class D’’ under section

701.9 of Title 6 of the New York State

Codes, Rules and Regulations within the

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