[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Rules and Regulations]
[Pages 59732-59738]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25747]


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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.

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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:

------------------------------------------------------------------------
                                               Examples of Potentially
                 Category                         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

[[Page 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

[[Page 59734]]

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 site-
specific 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 dissolved-based 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

[[Page 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 GLI-related 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

[[Page 59736]]

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 fish-consumption 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.

[[Page 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:


Sec. 132.6  Application of part 132 requirements in Great Lakes States 
and Tribes.

* * * * *
    (d) Effective November 6, 2000, Sec. 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

[[Page 59738]]

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 Sec. 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