[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Rules and Regulations]
[Pages 59738-59748]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25746]


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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.

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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 site-specific 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 Site-Specific 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

[[Page 59739]]

requirements of this rule. In addition, for the sake of simplicity, the 
remainder of this preamble refers to the effects of this rule, although 
it will be the corresponding State and local law and corresponding 
NPDES and Industrial User permits by which the remaining implementation 
of this XL project will be achieved.

Outline of Today's Document

    The information presented in this preamble is organized as follows:

I. Authority
II. Background
A. Overview of Project XL and XLC
B. Overview of the Steele County XLC Project
    1. Description of the Steele County Community XL Project
    2. What Are the Environmental Benefits of the Project?
    3. What are the Economic Benefits and Paperwork Reduction 
Deriving from the Project?
    4. Stakeholder Involvement
    5. What is the Project Duration and Completion Date?
    6. How Will EPA Ensure That Only Appropriate Sponsors Continue 
To Receive Flexibility Under This Rule?
    7. How May the Project be Terminated?
III. Rule Description
    A. Clean Water Act Requirements, Pretreatment Streamlining 
Proposal and Summary of Regulatory Requirements for the Steele 
County XL Project
    B. Changes to the Proposed Rule
IV. Response to Significant Public Comments
V. What Is the Effective Date of this Rule?
VI. Additional Information
    A. How Does This Rule Comply with Executive Order 12866?
    B. Is a Regulatory Flexibility Analysis Required?
    C. Is EPA Required to Submit a Rule Report Under the 
Congressional Review Act?
    D. Is an Information Collection Request Required for This Rule 
Under the Paperwork Reduction Act?
    E. Does This Rule Trigger the Requirements of the Unfunded 
Mandates Reform Act?
    F. How Does This Rule Comply With Executive Order 13045: 
Protection of Children from Environmental Health Risks and Safety 
Risks?
    G. How Does This Rule Comply with Executive Order 13132 on 
Federalism?
    H. How Does This Rule Comply with Executive Order 13084: 
Consultation and Coordination With Indian Tribal Governments?
    I. Does This Rule Comply with the National Technology Transfer 
and Advancement Act of 1995 (``NTTAA'')?

I. Authority

    EPA is promulgating this regulation under the authority of sections 
307, 308, and 501 of the CWA, 33 U.S.C. 1317, 1318, 1361.

II. Background

A. Overview of Project XL and XLC

    Each Project XL pilot-- ``eXcellence and Leadership'' is described 
in a Final Project Agreement (FPA). For this Project XL for Communities 
(XLC), the FPA sets forth the intentions of EPA, the Minnesota 
Pollution Control Agency (MPCA) and the Steele County Community with 
regard to a project developed under Project XLC, an EPA initiative to 
allow regulated entities to achieve better environmental results using 
common sense, cost effective strategies. This regulation will enable 
implementation of the project. Project XL was announced on March 16, 
1995, as a central part of the National Performance Review and the 
EPA's effort to reinvent environmental protection. See 60 FR 27282 (May 
23, 1995). Project XL provides a limited number of private and public 
regulated entities an opportunity to develop their own pilot projects 
to provide regulatory flexibility that will result in environmental 
protection that is superior to that which would be achieved through 
compliance with current and future regulations. These efforts are 
crucial to EPA's ability to test new strategies that reduce the 
regulatory burden and promote economic growth while achieving better 
environmental and public health protection. EPA intends to evaluate the 
results of this and other XL projects to determine which specific 
elements of the project(s), if any, should be more broadly applied to 
other regulated entities for the benefit of both the economy and the 
environment.
    Under Project XL, participants in four categories--facilities, 
industry sectors, governmental agencies and communities--are offered 
the flexibility to develop common sense, cost-effective strategies that 
will replace or modify specific regulatory requirements on the 
condition that they produce and demonstrate superior environmental 
performance. Project XLC, excellence and leadership for communities, 
was developed to focus on communities and local governments or regional 
organizations that are interested in creating an XL project. See 60 FR 
55569 (November 1, 1995). Project XLC encourages potential sponsors to 
come forward with new approaches to demonstrate community-designed and 
directed strategies for achieving greater environmental quality 
consistent with community economic goals. To participate in Project 
XLC, applicants must develop alternative pollution reduction strategies 
pursuant to nine criteria: superior environmental results; stakeholder 
involvement, support, and capacity for community participation; 
economic opportunity; test of an innovative multi-media strategy; 
transferability; feasibility; community planning; identification of 
monitoring, reporting and evaluation methods; and equitable 
distribution of environmental risks. Projects must have the full 
support of affected federal, state and tribal agencies to be selected.
    For more information about the XL and XLC criteria, readers should 
refer to the three descriptive documents published in the Federal 
Register (60 FR 27282, May 23, 1995; 60 FR 55569, November 1, 1995; and 
62 FR 19872, April 23, 1997). For further discussion as to how the 
Steele County XL Communities project addresses the XLC criteria, 
readers should refer to the Final Project Agreement and fact sheet that 
are available from the docket for this action (see ADDRESSES section of 
today's preamble).
    Project XL is intended to allow the EPA to experiment with untried, 
potentially promising regulatory approaches, both to assess whether 
they provide benefits at the specific facility affected, and whether 
they should be considered for wider application. Such pilot projects 
allow the EPA to proceed more quickly than would be possible when 
undertaking changes on a nationwide basis. EPA may modify rules, on a 
site- or State-specific basis, that represent one of several possible 
policy approaches within a more general statutory directive, so long as 
the alternative being used is permissible under the statute. Adoption 
of such alternative approaches or interpretations in the context of a 
given XL project does not, however, signal EPA's willingness to adopt 
that interpretation as a general matter, or even in the context of 
other XL projects. It would be inconsistent with the forward-looking 
nature of these pilot projects to adopt such innovative approaches 
prematurely on a widespread basis without first determining whether or 
not they are viable in practice and successful for the particular 
projects that embody them. Depending on the results in these projects, 
EPA may or may not be willing to consider adopting the alternative 
approach or interpretation again, either generally or for other 
specific facilities.
    EPA believes that adopting alternative policy approaches and/or 
interpretations, on a limited, site- or State-specific basis and in 
connection with a carefully selected pilot project, is consistent with 
the expectations of Congress about EPA's role in implementing the 
environmental statutes (so long as EPA acts within the

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discretion allowed by the statute). Congress' recognition that there is 
a need for experimentation and research, as well as ongoing 
reevaluation of environmental programs, is reflected in a variety of 
statutory provisions, e.g., section 104 of the CWA (33 U.S.C. 1254).

B. Overview of the Steele County XLC Project

1. Description of the Steele County Community XL Project Community-
Based Environmental Regulation
    The Steele County XLC pilot project will test the effectiveness of 
a community-based approach to industrial regulated wastewater effluent 
reductions and water use reduction controls designed to: (1) Result in 
pollution prevention; (2) meet the objectives of the CWA regulatory 
program; and (3) be at least as protective of human health and the 
environment as the current system. This project will pilot a community-
based approach to environmental regulation with the goal of achieving a 
reduction in the discharge of certain metals to the OWWTF, and 
Biological Oxygen Demand (BOD), Total Suspended Solids (TSS) and Total 
Kjeldahl Nitrogen (TKN) to the BPWWTF. Other aspects of the pilot 
program will include water usage reduction, the development and 
implementation of a storm water and sewer water separation and 
education plan, and the development of a training and assessment 
program of an Environmental Management System. If this first phase of 
the project is considered by the parties to be successful, a Phase II, 
consisting in general outline of a multi-media approach to 
environmental permitting based on overall community performance in the 
areas of air emissions, solid waste, hazardous waste, chemical storage, 
and community sustainability may be considered. Today's rule does not 
cover or commit to a second phase of this project.
    For the purposes of today's rule the group of Owatonna Sponsors who 
are Participating Industrial Users, includes the following Industrial 
Users (IUs) in the City of Owatonna: Crown Cork and Seal Company, Inc.; 
Cybex International Inc.; Josten's Inc.-Southtown Facility; SPx 
Corporation, Service Solutions Division; Truth Hardware Corporation; 
and Uber Tanning Company. Two facilities included in the Owatonna 
Sponsor group, Viracon-Marcon, Inc. and the Wenger Corporation and one 
Sponsor located in Blooming Prairie, Minnesota, ATOFINA Chemicals, Inc. 
(formerly Elf Atochem), are not receiving regulatory flexibility under 
today's rule and are therefore not included as Participating Industrial 
Users.
    To achieve the objectives of Phase 1 of the Project, part of this 
project will pilot an incentive-based approach to reduced monitoring 
requirements. As the Owatonna Sponsors who are Participating Industrial 
Users, as a group meet certain discharge reduction goals, the City may 
reduce the required frequency of monitoring for any of the 
Participating Industrial Users. Other aspects of this pilot program 
include: (1) Pollutant monitoring may be eliminated where a pollutant 
is not discharged; (2) in order to encourage water use reduction 
compliance with a concentration-based Pretreatment Standard may be 
demonstrated by compliance with an equivalent mass-based limit (as 
discussed in section III. A.1. of this preamble); and (3) an 
alternative publication process for Significant Noncompliance (SNC) may 
be put in place. Finally, Sponsors may seek ``No Exposure Certification 
for Exclusion from NPDES Storm Water Permitting'', which is available 
under existing regulations (40 CFR 122.26(g), pursuant to a change in 
the regulations found at 64 FR 68722 (December 8, 1999)), and does not 
require flexibility under today's rule. Each of the elements of the 
pilot program that require regulatory flexibility are explained in the 
following sections of this preamble.
    To achieve the objectives of this project the Participating 
Industrial Users have committed to utilize their best efforts to reach 
certain discharge reduction goals. Only if these goals are met will 
regulatory flexibility regarding lesser monitoring requirements than 
currently required under 40 CFR 403.12(e)(1) be granted. Specifically, 
the Participating Industrial Users located in Owatonna (or the 
``City'') commit to a 20% reduction goal in the amount of nickel, 
chromium, copper, and zinc (by mass) they discharge to the OWWTF. These 
reduction goals are for each individual pollutant. If the first 20% 
reduction goal is met, a further 20% reduction goal may be set for the 
remaining project term. If the initial 20% reduction goal is met for 
all pollutants, the City may, at its discretion, reduce the self-
monitoring frequency of Owatonna Sponsors who are Participating 
Industrial Users to once per year. If a second metal reduction goal is 
set, it need not be achieved in order for the minimum monitoring 
frequency to remain at once per year and no additional regulatory 
relief is available upon meeting this second goal; accordingly, today's 
rule does not address this second goal. In exercising the discretion 
provided in today's rule, the OWWTF will be required to consider the 
Participating Industrial User's previous three years of compliance 
data, and may not reduce monitoring for pollutants where there is a 
reasonable potential of violating Pretreatment Standards.
    This project focuses on the four metals slated for 20% release 
reductions because they are the metals determined to be discharged at 
the highest levels to the Owatonna wastewater treatment system relative 
to applicable water quality and biosolids criteria. In addition, the 
participants are regulated for these pollutants under categorical 
Pretreatment Standards and influence the loading of these pollutants to 
the Owatonna wastewater treatment system. Specific reductions of other 
categorically-regulated metals are not being pursued under this project 
because they are released in small quantities relative to applicable 
environmental criteria. Because certain of these other metals may be 
present at some of the participant facilities, these metals may not 
qualify for the elimination of monitoring due to no releases. In such 
cases, the Publically-Owned Treatment Works (POTW) will need to require 
continued monitoring of these metals. Through this rule the POTW will 
be given the discretion to reduce monitoring frequencies for the other 
categorically-regulated metals to the same extent it is being 
authorized to consider reduced monitoring for the four metals subject 
to the 20% reduction goals.
    This project will also authorize the City to allow a Sponsor 
Participating Industrial User subject to categorical Pretreatment 
Standards to not sample for a pollutant, if it is not expected to be 
present in its wastestream at levels greater than background levels in 
its water supply. For such pollutants, the OWWTF will only be required 
to conduct sampling and analysis once during the term of the 
Participating Industrial User's permit. The Participating Industrial 
User will still be subject to the categorical Pretreatment Standards 
for pollutants determined not to be present, and will need to resume 
monitoring if sampling indicates that a pollutant is present at above-
background levels, or at any time at the discretion of the OWWTF.
    If the POTW determines that one or more pollutants are not expected 
to be present at a Participating Industrial User, it may modify the 
IU's permit to reduce or eliminate the monitoring requirements for the 
pollutant(s). The Participating Industrial User permit will

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also require the User to submit, as part of its regular semi-annual 
monitoring reports, certification that there has been no increase of 
the pollutant in its wastewater due to its activities. The POTW will 
sample the Participating Industrial User's effluent for all pollutants 
in the applicable categorical Pretreatment Standard at least once 
during the term of the IU's permit.
    One of the goals of this pilot project will be to facilitate water 
conservation measures at the Sponsors' facilities. The total flow to 
the OWWTF from the six Owatonna Sponsors who are Participating 
Industrial Users is 415,000 gallons per day. The Owatonna Sponsors 
commit to a goal in the FPA of reducing this flow by 10%. To facilitate 
meeting this goal this rule allows the OWWTF to set equivalent mass 
limits as an alternative to concentration limits to meet concentration-
based categorical Pretreatment Standards. Under the proposed rule 
entitled ``Streamlining the General Pretreatment Regulations for 
Existing and New Sources of Pollution'' (Pretreatment Streamlining 
Proposal), which was published on July 22, 1999 (64 FR 39564), Control 
Authorities would be allowed to establish alternative mass limits if an 
Industrial User has installed Best Available Technology Economically 
Achievable (BAT), or equivalent to BAT treatment, and the Industrial 
User is employing water conservation methods and technologies that 
substantially reduce water use (Control Authority is defined at 40 CFR 
403.12 (a) and is a broad term that can mean a POTW with an approved 
pretreatment program or the Approval Authority (defined at 40 CFR 403.3 
(c)) where the POTW does not have an approved pretreatment program. The 
City of Owatonna has an approved pretreatment program.). While all of 
the conditions for receiving mass limits laid out in EPA's Streamlining 
Proposal are not being required for this site-specific rule (see 
discussion regarding Today's Rule in Equivalent Mass Limits for 
Concentration Limits section of III.A), EPA is interested in 
determining whether providing mass limits prior to full adoption of 
water conservation practices will encourage more widespread adoption of 
such practices. To ensure the continued appropriateness of the specific 
mass limits, Sponsor industries who are Participating Industrial Users 
will also be required to notify the City in the event production rates 
are expected to vary by more than 20 percent from a baseline production 
rate determined by Owatonna when it establishes a Participating 
Industrial User's initial mass limits. The Participating Industrial 
Users will be required to continue operation of at least the same level 
of treatment as at the outset of the project. Upon notification of a 
revised production rate, the City will reassess the appropriateness of 
the mass limit. Sponsor ATOFINA Chemicals discharges 16,900 gallons per 
day to the BPWWTF and commits in the FPA to a reduction goal of 10% of 
this amount. Because ATOFINA Chemicals is currently required to comply 
with mass-based limits, no change to its limits are required to 
facilitate water conservation measures.
    EPA is today promulgating a site-specific alternative procedure for 
publishing Significant Noncompliance for Participating Industrial 
Users. SNC is defined in 40 CFR 403.8(f)(2)(vii) as including 
violations by an Industrial User which meet one or more of eight 
specific criteria. Currently, POTWs are required to publish in the 
largest daily newspaper in the municipality in which the POTW is 
located a list of Industrial Users who have been in SNC at any time 
during the previous twelve months. The SNC publication requirement 
serves at least two important functions: (1) A deterrent effect on 
Industrial Users to avoid noncompliance generally, and SNC 
specifically, and (2) notice to the public of Significant 
Noncompliance. One result of this approach is that, if the POTW 
publishes the notice for a particular SNC violation after the end of 
the twelve month period, the publication may not occur close in time to 
the violation, resulting in a delay between the violation and the 
notice to the public.
    The intent of the alternative procedure promulgated today is to 
require website notice of all SNC violations, and reserve additional 
newspaper publication for cases where this format is needed for its 
potentially greater effect. The Sponsors also intend to promote prompt 
and appropriate assistance for identifying and correcting violations 
through a unique community-based approach. Pursuant to the Steele 
County FPA, an Owatonna Peer Review Committee will be established. This 
Committee will consist of at least two Owatonna Sponsors not connected 
to the noncompliance event being reviewed and any stakeholders that 
wish to participate. The Peer Review Committee will investigate all 
instances of noncompliance by an Owatonna Sponsor who is a 
Participating Industrial User and provide recommendations and 
assistance to expedite a return to compliance. The Peer Review 
Committee will make recommendations to the City regarding whether or 
not publication in a newspaper should occur, in addition to the website 
publication described below. All recommendations by the Peer Review 
Committee will be non-binding on the City, and the City must continue 
to implement its State-approved Enforcement Response Plan. Under the 
Steele County FPA, the Sponsors will take steps to conduct public 
outreach on the information available regarding Significant and other 
noncompliance by the Sponsors, including a description of the Peer 
Review Committee and its functions, a Committee contact person and 
telephone number, and notice of Peer Review Committee meetings. Such 
outreach will include, but not be limited to, periodic (at least 
annual) mailings to the identified Steele County XL community 
stakeholders, and notice in the public library.
    Any violation which is not corrected within thirty (30) calendar 
days or which results in pass through (as defined at 40 CFR 403.3(n)) 
or interference (as defined at 40 CFR 403.3(i)) will continue to be 
published in a newspaper as currently required in Part 403. All SNC 
violations, whether published in a newspaper or not, will be published 
as soon as is practicable on the MPCA web site. The website must 
contain an explanation of how SNC is determined. A contact name and 
phone number for information regarding all other violations must also 
be listed on the MPCA website.
2. What Are the Environmental Benefits of the Project?
    This XLC project is expected to achieve superior environmental 
performance beyond that which is achieved under the current CWA 
regulatory system by encouraging the Sponsors to work together in a 
coordinated manner to efficiently reduce their discharges to the OWWTF. 
As has been described, the Owatonna Sponsors who are Participating 
Industrial Users have committed to 20% discharge reduction goals for 
nickel, chromium, copper, and zinc. Although not receiving regulatory 
flexibility under today's proposal, ATOFINA Chemicals has committed to 
analogous discharge reduction goals for BOD, TSS, and TKN to the 
BPWWTF. The Participating Industrial Users and the Blooming Prairie 
Sponsor have additionally committed to a goal of at least a 10% 
reduction in water usage. Besides the direct environmental benefits of 
these reductions, the Sponsors have agreed to conduct an Environmental 
Management System (EMS) assessment within eighteen

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months of the effective date of the project. In the first year of the 
project, the Sponsors commit to arrange and participate in training for 
the development of the EMS. The Sponsors will utilize the information 
from the EMS assessment to reach the discharge reduction goals as well 
as to examine their facilities for other possible environmental 
improvements. The Sponsors have agreed to report to EPA and the MPCA 
the results of the assessment and the suggestions which have been 
adopted by each facility. Additionally, the City has identified storm 
water infiltration into the collection system during wet weather events 
as a major problem. The Owatonna Sponsors have agreed to work with the 
City to help alleviate this problem through the development of 
educational materials which will be distributed to Sponsor employees as 
well as to the community at large. The Owatonna Sponsors have also 
committed in the FPA to develop a plan to minimize storm water 
infiltration into the sewer system at each participating facility.
    One unique aspect of this pilot project is the desire of the 
Sponsor facilities to work together to reach common goals. It is hoped 
that this cooperation will go beyond the specific goals of this project 
and result in presently unforseen environmental benefits.
3. What Are the Economic Benefits and Paperwork Reduction Deriving From 
the Project?
    This XLC Project will encourage the Sponsors to reduce water 
consumption at their facilities. This may result in reduced water costs 
for the facilities, without diminishing the level of environmental 
protection. Assuming the Sponsors discharge lower levels of pollutants 
to the OWWTF and the BPWWTF, these POTWs may benefit from lower 
treatment costs. To the extent monitoring and reporting frequencies are 
reduced under this project, reduced expenditures may result. The EMS 
assessments may identify further environmental and economic benefits.
4. Stakeholder Involvement
    Stakeholder involvement and participation is vital to the success 
of the Steele County XLC project. The participants have worked through 
a Community Advisory Committee, established by the Steele County 
Project Sponsors, to ensure that the general public has had an 
opportunity to be involved throughout the development of this project. 
The participants will continue to work to foster full and open 
communication between the general public and the project Sponsors.
    In addition, the Peer Review Committee will continue to provide 
opportunities for input from the community on important compliance 
issues. For example, if a Sponsor is in noncompliance, the Peer Review 
Committee will provide input to bring the Sponsor back into compliance. 
Sponsors will continue outreach work with all stakeholders using the 
strategies and tactics contained in their Proposed Stakeholder 
Involvement Plan (June 1999). MPCA, the Steele County Sponsors, 
Owatonna, Blooming Prairie, and EPA have been involved in the 
development of this project, and support it. From the beginning of the 
Steele County XLC process, there has been a high priority on providing 
opportunity for diverse stakeholder input and review. Public meetings 
were held in the city of Owatonna on June 9, July 27, and September 23, 
1999.
5. What Is the Project Duration and Completion Date?
    As with all XL projects testing alternative environmental 
protection strategies, the term of the Steele County Community XL 
project is one of limited duration. The duration of the regulatory 
relief provided by this rule is anticipated to be five (5) years from 
October 6, 2000 or until October 6, 2005. However, the project may be 
terminated or suspended at any time for failure to comply with any of 
the requirements of the rule. If the parties renew the Steele County 
Community XL Final Project Agreement beyond its initial five year 
period, then it may be necessary to extend this site-specific rule for 
an additional period of time.
6. How Will EPA Ensure That Only Appropriate Sponsors Continue To 
Receive Flexibility Under This Rule?
    If EPA determines that it is appropriate to terminate Project 
participation of one or more Sponsors who are Participating Industrial 
Users, so that they will no longer be eligible to receive the 
regulatory flexibility provided in today's rule, EPA will coordinate 
with the POTW and State to make the necessary changes to the 
Participating Industrial User's permit. EPA retains its enforcement 
authority under the CWA to enforce Pretreatment Standards whether or 
not the POTW or State make such changes to the Participating Industrial 
User's permit.
7. How May the Project Be Terminated?
    When the State modifies Owatonna's NPDES permit to incorporate the 
flexibility in today's rule, it has agreed to include a reopener 
provision enabling the State to eliminate this flexibility. The State 
has agreed to use this reopener provision if the Project is terminated. 
In the event of early Project termination, EPA will also eliminate the 
provisions of proposed section 403.19 in advance of its October 6, 2005 
expiration date.

III. Rule Description

A. Clean Water Act Requirements, Pretreatment Streamlining Proposal and 
Summary of Regulatory Requirements for the Steele County XL Project

Equivalent Mass Limits for Concentration Limits (40 CFR 403.19(b))
    1. Existing Requirements (40 CFR 403.6(c)). National categorical 
Pretreatment Standards establish limits on pollutants discharged to 
POTWs by facilities in specific industrial categories. The Pretreatment 
Standards establish pollutant limitations in different ways for 
different categories. EPA has established categorical Pretreatment 
Standards that are: (1) Concentration-based standards that are 
implemented directly as concentration limits; (2) mass limits based on 
production rates; (3) both concentration-based and production-based 
limits; and (4) mass limits based on a concentration standard 
multiplied by a facility's process wastewater flow. The current 
regulations do not allow a mass limit to substitute for a concentration 
limit when the applicable standard is expressed in terms of 
concentration. While 40 CFR 403.6(d) allows the Control Authority to 
develop equivalent mass limits for concentration-based standards in 
order to prevent dilution, the equivalent limit applies in addition to 
the concentration limit. Today's rule allows a Participating Industrial 
User who qualifies for flexibility under the rule to demonstrate 
compliance with the categorical Pretreatment Standard by demonstrating 
compliance with an equivalent mass-based limit alone.
    2. The Pretreatment Streamlining Proposal. In its proposed rule 
entitled Streamlining the General Pretreatment Regulations for Existing 
and New Sources of Pollution (64 FR 39564, July 22, 1999) (Pretreatment 
Streamlining Proposal), EPA proposed to allow Control Authorities to 
set equivalent mass limits as an alternative to concentration limits to 
meet concentration-based categorical Pretreatment Standards in cases 
where an Industrial User has installed model treatment technology or a 
treatment technology that yields optimum removal efficiencies, and the 
Industrial User is employing water conservation methods

[[Page 59743]]

and technologies that substantially reduce water use. The Agency, 
however, solicited comments on whether mass limits would be appropriate 
in other situations. EPA proposed that 40 CFR 403.6(c) be revised to 
clarify that equivalent mass limits may be authorized by the Control 
Authority in lieu of concentration-based limits for Industrial Users. 
The Control Authority would be required to document how the mass limits 
were derived and make this information publicly available.
    The July 22, 1999, proposed rule also specifically referenced the 
Steele County XL Community Project and indicated that, if this project 
were ready to proceed before EPA finalized the complete Pretreatment 
Streamlining proposal, EPA may promulgate, based on that proposal and 
comments received, a separate site-specific rule to allow the 
industries involved in the Steele County XLC project to use, at the 
discretion of the Control Authority, the change proposed for 40 CFR 
403.6(c).
    3. Today's Rule. To facilitate water use reduction by industries 
involved in the Steele County XLC Project, EPA is allowing the City of 
Owatonna, which is the Control Authority for the Owatonna Sponsor 
industries, the Participating Industrial Users, to set equivalent mass 
limits as an alternative to concentration limits to meet concentration-
based categorical Pretreatment Standards. For this site-specific rule, 
EPA will not require Approval Authority review of equivalent mass-based 
limits in addition to POTW approval because EPA believes that existing 
Approval Authority oversight is sufficient to ensure that equivalent 
mass-limits are properly calculated and applied. EPA expects that the 
experience with Steele County on this element of today's rule may well 
inform whether Approval Authority review should be required in the 
Pretreatment Streamlining Proposal. Mass limits must be established by 
multiplying the five year, long term average process flows of the 
Participating Industrial Users (or a shorter period if production has 
significantly increased or decreased during the five year period) by 
the concentration-based categorical Pretreatment Standards. In general, 
flows used to establish mass-based limits must be appropriate in 
relation to current production or known future production, and will be 
determined based on consultation between the industry and the City of 
Owatonna. EPA's ``Guidance Manual for the Use of Production-Based 
Pretreatment Standards and the Combined Wastestream Formula'', EPA833-
B-85-201, September 1985 provides additional guidance on establishing 
appropriate long-term average flows.
    Importantly, today's rule will not affect the applicability of 
categorical Pretreatment Standards. Section 307(d) of the Clean Water 
Act prohibits the owner or operator of any source from operating in 
violation of any Pretreatment Standard. See 33 U.S.C. 1317(d). Today's 
rule will simply allow a Participating Industrial User to demonstrate 
compliance with a concentration-based Pretreatment Standard by meeting 
a properly-calculated, mass-based equivalent. Today's rule does not 
affect the underlying categorical Pretreatment Standard and, therefore, 
does not improperly transfer standard-setting authority to the City of 
Owatonna. Compliance with a mass-based limit may be used to demonstrate 
compliance with a categorical Pretreatment Standard only to the extent 
that the mass-based equivalent is properly calculated. In any event, 
EPA retains its authority to oversee POTW implementation of categorical 
Pretreatment Standards, including the authority to ensure that 
equivalent mass-based limits correctly interpret and apply 
concentration-based Pretreatment Standards. EPA notes that these 
provisions are similar to the existing authority to allocate equivalent 
mass limits or concentration limits for production-based standards. See 
40 CFR 403.6(c)(2).
    In return for this flexibility, the Sponsor industries, the 
Participating Industrial Users, are committing as a group to reduce 
water usage by 10 percent over the initial five-year project period. In 
this site-specific rule EPA is not conditioning the availability of 
mass-based limits on the use of water conservation methods and 
technologies (as it would in the Pretreatment Streamlining Rule) 
because EPA wishes to determine whether the structure of today's rule 
would result in the desired reduction in water use without imposing 
preconditions that may limit more widespread participation. For the 
same reason, EPA is not requiring that Participating Industrial Users 
generate complex technical studies to demonstrate the necessity of 
equivalent mass-based limits. In addition, this rule will not require 
that Participating Industrial Users utilize model treatment 
technologies that serve as the basis for the applicable Pretreatment 
Standards. Instead, EPA is interested in determining whether or not it 
would be sufficient to prevent facilities from complying with the 
applicable Standards, in the event of production decreases, by 
requiring that the facility maintain at least the same level of 
treatment as at the time an equivalent mass limit is established. To 
ensure the continued appropriateness of the specific mass limits, the 
Participating Industrial Users will also be required to notify the City 
in the event production rates are expected to vary by more than 20 
percent from the previous year's average. Upon notification, the City 
will reassess the appropriateness of the mass limit.
    In addition to EPA's rulemaking action, MPCA will need to issue a 
revised NPDES permit to the OWWTF, and the City will need to revise IU 
permits issued to Participating Industrial Users to enable it to 
establish alternative mass limits. The City will also need to evaluate 
its sewer use ordinance to determine if revisions are necessary to 
implement the changes promulgated today.
Sampling for Pollutants Not Present (40 CFR 403.19(c))
    1. Existing Requirements (40 CFR 403.12(e), 403.8(f)(2)(v)). 
Currently, 40 CFR 403.12(e)(1) requires Industrial Users subject to 
categorical Pretreatment Standards to submit reports to the Control 
Authority at least twice a year, indicating the nature and 
concentration of all pollutants in their effluent that are limited by 
the Standards. 40 CFR 403.8(f)(2)(v) requires Control Authorities to 
sample these Industrial Users at least annually. Sampling is currently 
required for all pollutants limited by a categorical Pretreatment 
Standard, even if certain pollutants regulated by the Standard are not 
reasonably expected to be present.
    2. The Pretreatment Streamlining Proposal. The July 22, 1999 
Pretreatment Streamlining proposal would authorize a Control Authority 
to allow an Industrial User subject to categorical Pretreatment 
Standards to not sample for a pollutant if the pollutant is not 
expected to be present in its wastestream in a quantity greater than 
the background level present in its water supply, with no increase in 
the pollutant due to the regulated process. The Agency also proposed a 
reduced sampling requirement for the POTW, to once per permit term, 
once it had determined that a pollutant was not expected to be present.
    The Pretreatment Streamlining proposal would require the Control 
Authority's decision to waive sampling to be based upon both sampling 
and other technical data, such as the raw materials, industrial 
processes, and potential by-products. EPA did not propose that a 
specific amount of

[[Page 59744]]

sampling data be required but solicited comment on that issue.
    3. Today's Rule. For purposes of this project, and as specified in 
Attachment C of the FPA, the City will be authorized to allow a Sponsor 
Participating Industrial User subject to categorical Pretreatment 
Standards to reduce the required sampling to less than twice per year, 
or to not sample for a pollutant, if it is not expected to be present 
in its wastestream at levels greater than background levels in its 
water supply, with no increase in the pollutant due to the regulated 
process. For such pollutants, the POTW will only be required to conduct 
sampling and analysis once during the term of the Participating 
Industrial User's permit. The Participating Industrial User will still 
be subject to the categorical Pretreatment Standards for pollutants 
determined not to be present, and will be in violation of the limit and 
will need to resume the required sampling if existing sampling 
indicates the User has violated the limit.
    Consistent with the Pretreatment Streamlining Proposal, for 
purposes of this project, determinations by the City of Owatonna to 
either waive or reduce Participating Industrial User sampling to less 
than twice per year will be based on both sampling and other technical 
data, such as raw material usage, industrial processes, and potential 
by-products. Existing data on pollutant concentrations of the local 
public water supply will be used to characterize background 
concentrations; where a Participating Industrial User uses an 
alternative water supply, representative influent sampling will need to 
be provided. At least three years of Participating Industrial User 
effluent data will then be compared to the background data in making 
the determination that a given pollutant is not expected to be present. 
In addition, the city will need to make its determination based on its 
knowledge of the raw materials used and the facility's processes and 
potential by-products, but will not consider capability and efficiency 
of the User's pretreatment system. Where it believes it is necessary to 
make a determination, the City may require a Participating Industrial 
User to provide representative data on its untreated effluent.
    Once the POTW determines that one or more pollutants are not 
expected to be present at a Participating Industrial User, it may 
modify the Participating Industrial User's permit to reduce or 
eliminate the monitoring requirements for the pollutant(s). The IU 
permit must also require the Participating Industrial User to submit, 
as part of its regular semi-annual monitoring reports, certification 
that there has been no increase in the pollutant in its wastewater due 
to its activities. The POTW must sample the Participating Industrial 
User's effluent for all pollutants in the applicable categorical 
Pretreatment Standard at least once during the term of the 
Participating Industrial User's permit.
    In addition to EPA's rulemaking action, MPCA will need to issue a 
revised NPDES permit to the OWWTF, and the City will need to revise 
Participating Industrial User permits issued to Sponsor facilities to 
enable it to eliminate monitoring for pollutants not present. The City 
will also need to evaluate its sewer use ordinance to determine if 
revisions are necessary to implement the changes promulgated today.
Monitoring Frequency Reductions (40 CFR 403.19(e))
    1. Existing Requirements (40 CFR 403.12(e)). As discussed above, 40 
CFR 403.12(e)(1) currently requires Industrial Users subject to 
categorical Pretreatment Standards to submit reports to the Control 
Authority twice a year, or more frequently if required by the 
Pretreatment Standard or the POTW, indicating the nature and 
concentration of all pollutants in their effluent that are limited by 
the Pretreatment Standards. The City of Owatonna generally requires its 
significant IUs to monitor and report on a quarterly basis.
    2. Today's Rule. Upon initiation of this project, the City will 
evaluate the recent performance of Sponsor Participating Industrial 
Users, and may reduce monitoring requirements to twice per year for 
facilities with satisfactory compliance records. After the first metal 
reduction goal of 20% is met, the City will be authorized, at its 
discretion, to reduce the self-monitoring frequency of Participating 
Industrial Users for any regulated pollutant to once per year. EPA 
believes that this mechanism will provide an incentive for 
Participating Industrial Users to reduce their contribution of the 
specified metals. In exercising this discretion, the OWWTF will be 
required to consider the Participating Industrial User's previous three 
years of compliance data, and cannot reduce monitoring for pollutants 
where there is a reasonable potential of violating Pretreatment 
Standards.
    The loading values that were specified in the proposed rule have 
been adjusted in today's rule based on a 20 percent reduction from the 
baseline loadings from the final group of Owatonna Participating 
Industrial Users.
    In addition to EPA's rulemaking action, MPCA will need to issue a 
revised NPDES permit to the OWWTF, and the City will need to revise 
Participating Industrial User permits issued to Sponsor facilities to 
reduce monitoring frequencies for regulated pollutants. The City will 
also need to evaluate its sewer use ordinance to determine if revisions 
are necessary to implement the changes promulgated today.
Significant Noncompliance Criteria (40 CFR 403.19(f))
    1. Existing Requirements (40 CFR 403.8(f)(2)(vii)). ``Significant 
Noncompliance'' (SNC) is defined in 40 CFR 403.8(f)(2)(vii) to include 
violations that meet one or more of eight criteria. The criteria are: 
(1) Chronic violations of discharge limits (where 66 percent of all 
measurements taken during a six-month period exceed the daily maximum 
limit or the average limit for the same pollutant parameter); (2) 
technical review criteria (TRC) violations (where 33 percent or more of 
all measurements for each pollutant parameter taken during a six-month 
period equal or exceed the product of the daily maximum limit or the 
average limit multiplied by the applicable TRC (TRC equals 1.4 for BOD, 
TSS, fats, oil and grease and 1.2 for all other pollutants except pH)); 
(3) any other violation of a pretreatment effluent limit that the 
Control Authority determines has caused, alone or in combination with 
other discharges, interference or pass through; (4) any discharge of a 
pollutant that has caused imminent endangerment to human health, 
welfare or to the environment or has resulted in the Control 
Authority's exercise of its emergency authority to halt or prevent such 
a discharge; (5) failure to meet, within 90 days after the schedule 
date, a compliance schedule milestone contained in a local control 
mechanism or enforcement order for certain activities; (6) failure to 
provide required reports within 30 days after the due date; (7) failure 
to accurately report Noncompliance; and (8) any other violation or 
group of violations which the Control Authority determines will 
adversely affect the operation or implementation of the local 
Pretreatment Program.
    On July 24, 1990, EPA modified 40 CFR 403.8(f)(2)(vii) to include 
the existing definition of SNC (55 FR 30082). The purpose of this 
modification was to provide some certainty and consistency among 
Control Authorities for publishing their

[[Page 59745]]

lists of Industrial Users in Noncompliance. Under this provision, 
Control Authorities are required to annually publish a list of 
Industrial Users in SNC at any time during the previous twelve months. 
The Control Authority must publish this list in the largest daily 
newspaper published in the municipality in which the POTW is located. 
Independent of this publication requirement, Control Authorities are 
required to develop and implement Enforcement Response Plans, which 
describe the range of enforcement responses they will use in addressing 
various types of IU Noncompliance. Where an IU is identified as being 
in SNC, EPA guidance recommends that the Control Authority respond with 
some type of formal enforcement action such as an enforceable order 
(``Guidance for Developing Control Authority Enforcement Response 
Plans,'' EPA 832-B-89-102, September 1989.)
    2. The Pretreatment Streamlining Proposal. EPA did not propose to 
amend the entire provision on SNC, or even seek comment on all of it. 
Instead, the Agency proposed limited changes and sought comment on a 
number of options for a few specific provisions. With respect to 
publication, the primary purposes of which are to notify the public of 
violations and provide a disincentive for violating, EPA proposed to 
amend 40 CFR 403.8(f)(2)(vii) to allow publication of the SNC list in 
any paper of general circulation within the jurisdiction served by the 
POTW that provides meaningful public notice. EPA also proposed to amend 
the SNC criteria so that they must only be applied to Significant 
Industrial Users, and to address more than just daily maximum and 
monthly average limits. The Agency also sought comments on whether to 
revise the Technical Review Criteria, whether to revise the SNC 
criteria for late reports, and whether to codify the rolling quarters 
approach to determining SNC or adopt some other approach.
    3. Today's Rule. Under today's site-specific rule, the City will 
have the discretion to not publish certain instances of SNC by Sponsor 
Participating Industrial Users in a newspaper. EPA believes that this 
change will provide faster public notice of SNC and will reserve 
additional newspaper publication of SNC for cases where this format is 
needed for its potentially greater effect. The City will continue to be 
required to provide newspaper publication of any violation which is not 
corrected within thirty (30) calendar days, or which results in pass 
through or interference. All SNC violations, whether published in a 
newspaper or not will be published as soon as is practicable, on the 
MPCA web site. The web site will contain an explanation of how SNC is 
determined, as well as a contact name and phone number for information 
regarding all other violations. The Owatonna Peer Review Committee 
system contemplated in the Steele County FPA will not be specified 
expressly in the rule, but rather is a voluntary agreement on the part 
of the Sponsors.
    In addition to EPA's rulemaking action, MPCA will need to issue a 
revised NPDES permit to the OWWTF. The City will also need to evaluate 
its sewer use ordinance to determine if revisions are necessary to 
implement the changes promulgated today.

B. Changes to the Proposed Rule

    EPA received no public comments on the proposed rule. EPA has made 
only one change to the proposed rule. The final rule includes the final 
list of Participating Industrial Users and adjusts the average daily 
loadings for chromium, copper, nickel and zinc in Sec. 403.19(e) of the 
proposal to reflect participation of the final group of Participating 
Industrial Users.

IV. Response to Significant Public Comments

    EPA received no public comments on the proposed rule.

V. What Is the Effective Date of This Rule?

    Pursuant to 5 U.S.C. 553(d)(1), EPA is making this rule effective 
immediately upon publication because it relieves a restriction in that 
it reduces monitoring requirements and as such has the effect of 
reducing regulatory requirements for the Participating Industrial 
Users. In addition, pursuant to 5 U.S.C. 553(d)(3), EPA finds that good 
cause exists to make this rule effective immediately. The Owatonna 
Wastewater Treatment Plant and six Participating Industrial User 
facilities are the only regulated entities affected by this rule. The 
Owatonna Wastewater Treatment Facility and the Participating Industrial 
Users have had full notice of this site-specific rule. Making the rule 
immediately effective will allow the MPCA to issue a revised NPDES 
permit to the Owatonna Wastewater Treatment Facility sooner.

VI. Additional Information

A. How Does This Rule Comply With Executive Order 12866?

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) EPA must 
determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may: (1) Have an annual effect on the economy of $100 million 
or more or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety in State, local, or tribal governments or communities; 
(2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency; (3) Materially alter the 
budgetary impact of entitlement, grants, user fees, or loan programs or 
the rights and obligations of recipients thereof; or (4) Raise novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in the Executive Order.
    Because the annualized cost of this rule will be significantly less 
than $100 million and will not meet any of the other criteria specified 
in the Executive Order and because this rule affects only six specific 
private sector facilities and a single Publically-Owned Treatment Works 
(POTW), it is not a rule of general applicability or a ``significant 
regulatory action'' and therefore not subject to OMB review and 
Executive Order 12866.
    Further today's rule does not affect the POTW or the facilities 
unless they choose on a voluntary basis to participate in the XL 
project. Finally, OMB has agreed that review of site-specific rules 
under Project XL is not necessary.

B. Is a Regulatory Flexibility Analysis Required?

    Regulatory Flexibility Act (RFA), as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et 
seq.
    The RFA generally requires an agency to prepare a Regulatory 
Flexibility Analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Under section 605(b) of the RFA, however, if the head of an agency 
certifies that a rule will not have a significant economic impact on a 
substantial number of small entities, the statute does not require the 
agency to prepare a Regulatory Flexibility Analysis. Pursuant to 
section 605(b), the Administrator certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities for the reasons explained below.

[[Page 59746]]

Consequently, EPA has not prepared a Regulatory Flexibility Analysis.
    Small entities include small businesses, small organizations and 
small governmental jurisdictions. For purposes of assessing the impacts 
of today's rule on small entities, small entity is defined as: (1) A 
small business according to RFA default definitions for small business 
(based on SBA size standards); (2) a small governmental jurisdiction 
that is a government of a city, county, town, school district or 
special district with a population of less than 50,000; and (3) a small 
organization that is any not-for-profit enterprise which is 
independently owned and operated and is not dominant in its field.
    Today's rule amends EPA's General Pretreatment Regulations to 
modify on a site-specific basis the requirements for pretreatment 
programs. The rule authorizes the Owatonna, Minnesota Waste Water 
Treatment Facility, in its discretion, to reduce the required frequency 
of monitoring for Participating Industrial Users. Only one POTW is 
subject to this rule and grant of the relief authorized by the rule 
will reduce costs to the Owatonna Wastewater Treatment Facility's 
Participating Industrial Users, including any Industrial User that is a 
small business. Under these circumstances, EPA has concluded that the 
rule will not have a significant economic impact on a substantial 
number of small entities.

C. Is EPA Required To Submit a Rule Report Under the Congressional 
Review Act?

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and the Comptroller General of the United 
States. Section 804, however, exempts from section 801 the following 
types of rules: Rules of particular applicability, rules relating to 
agency management or personnel, and rules of agency organization, 
procedure, or practice that do not substantially effect the rights or 
obligations of non-agency parties. 5 U.S.C. 804 (3). EPA is not 
required to submit a rule report regarding today's action under section 
801 because this is a rule of particular applicability affecting just 
six private sector facilities and one POTW.

D. Is an Information Collection Request Required for This Rule Under 
the Paperwork Reduction Act?

    This action applies to six companies and a single POTW and 
therefore requires no information collection activities subject to the 
Paperwork Reduction Act, and therefore no Information Collection 
Request (ICR) was submitted to the Office of Management and Budget 
(OMB) for review in compliance with the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq.
    E. Does This Rule Trigger the Requirements of the Unfunded Mandates 
Reform Act?
    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation of why the 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    As noted above, this rule is limited to the OWWTF and certain 
sponsoring industries. This rule will create no federal mandate because 
EPA is imposing no new enforceable duties. EPA has also determined that 
this rule does not contain a Federal mandate that may result in 
expenditures of $100 million or more for State, local, and tribal 
governments, in the aggregate, or the private sector in any one year. 
Thus, today's rule is not subject to the requirements of sections 202 
and 205 of the UMRA. Nevertheless, in developing this rule, EPA worked 
closely with MPCA and the OWWTF and received meaningful and timely 
input in the development of this rule.

F. How Does This Rule Comply With Executive Order 13045: Protection of 
Children From Environmental Health Risks and Safety Risks?

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant,'' 
as defined under Executive Order 12866; and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    The EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This action is not subject to 
Executive Order 13045 because it is not economically significant as 
defined in Executive Order 12866. This rule does not impose any new or 
amended standards for discharged wastewater resulting from treatment by 
a POTW. With respect to the effects on children, the collection, 
treatment and disposal of wastewater occurs in a restricted system 
(e.g., buried sewer lines and fenced wastewater treatment plants) that 
children are unlikely to come in contact with on a routine basis. This 
rule has no identifiable direct impact upon the health and/or safety 
risks to children and adoption of the regulatory changes will not 
disproportionately affect children. This rulemaking is thus in 
compliance with the intent and requirements of the Executive Order.

[[Page 59747]]

G. How Does This Rule Comply With Executive Order 13132 on Federalism?

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132. The requirements outlined in 
today's rule will not take effect unless Minnesota chooses to adopt 
equivalent requirements through revisions to Owatonna's NPDES permit 
and Owatonna chooses to take the steps to implement the rule and make 
revisions to any local law and Industrial User permits. Thus, the 
requirements of section 6 of the Executive Order do not apply to this 
rule. Although section 6 of Executive Order 13132 does not apply to 
this rule, EPA did fully coordinate and consult with State and local 
officials in developing this rule.

H. How Does This Rule Comply With Executive Order 13084: Consultation 
and Coordination With Indian Tribal Governments?

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments or EPA consults with those 
governments. If EPA complies by consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities''. Today's rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. There are no communities of Indian tribal governments 
located in the vicinity of Steele County. Accordingly, the requirements 
of section 3(b) of Executive Order 13084 do not apply to this rule.

I. Does This Rule Comply With the National Technology Transfer and 
Advancement Act of 1995 ``NTTAA'')?

    Section 12(d) of NTTAA, Public Law 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary standards. This 
rulemaking sets equivalent means of expressing the same technical 
standards, and of determining compliance with those standards. It also 
uses voluntary goals to achieve pollutant reductions beyond those 
required by the technical standards. Therefore, EPA is not considering 
the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 403

    Environmental protection, Confidential business, Reporting and 
recordkeeping requirements, Waste treatment and disposal, Water 
pollution control.

    Dated: September 29, 2000.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, part 403, title 40, 
chapter I of the Code of Federal Regulations is amended as follows:

PART 403--GENERAL PRETREATMENT REGULATIONS FOR EXISTING AND NEW 
SOURCES OF POLLUTION

    1. The authority citation for part 403 continues to read as 
follows:

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

    2. Section 403.19 is added to read as follows:


Sec. 403.19  Provisions of specific applicability to the Owatonna Waste 
Water Treatment Facility.

    (a) For the purposes of this section, the term ``Participating 
Industrial Users'' includes the following Industrial Users in the City 
of Owatonna, Minnesota: Crown Cork and Seal Company, Inc.; Cybex 
International Inc.; Josten's Inc.--Southtown Facility; SPx Corporation, 
Service Solutions Division; Truth Hardware Corporation; and Uber 
Tanning Company.
    (b) For a Participating Industrial User discharging to the Owatonna 
Waste Water Treatment Facility in Owatonna, Minnesota, when a 
categorical Pretreatment Standard is expressed in terms of pollutant 
concentration the City of Owatonna may convert the limit to a mass 
limit by multiplying the five-year, long-term average process flows of 
the Participating Industrial User (or a shorter period if production 
has significantly increased or decreased during the five year period) 
by the concentration-based categorical Pretreatment Standard. 
Participating Industrial Users must notify the City in the event 
production rates are expected to vary by more than 20 percent from a 
baseline production rate determined by Owatonna when it establishes a 
Participating Industrial User's initial mass limit. To remain eligible 
to receive equivalent mass limits the Participating Industrial User 
must maintain at least the same level of treatment as at the time the 
equivalent mass limit is established. Upon notification of a revised 
production rate from a Participating Industrial User, the City will 
reassess the appropriateness of the mass limit. Owatonna shall 
reestablish the concentration-based limit if a Participating Industrial 
User does not

[[Page 59748]]

maintain at least the same level of treatment as when the equivalent 
mass limit was established.
    (c) If a categorical Participating Industrial User of the Owatonna 
Waste Water Treatment Facility has demonstrated through sampling and 
other technical factors, including a comparison of three years of 
effluent data with background data, that pollutants regulated through 
categorical Pretreatment Standards, other than 40 CFR part 414, are not 
expected to be present in quantities greater than the background 
influent concentration to the industrial process, the City of Owatonna 
may reduce the sampling frequency specified in Sec. 403.8(f)(2)(v) to 
once during the term of the categorical Participating Industrial User's 
permit.
    (d) If a Participating Industrial User is discharging to the 
Owatonna Waste Water Treatment Facility in Owatonna, Minnesota and is 
subject to a categorical Pretreatment Standard other than one codified 
at 40 CFR part 414, the City of Owatonna may authorize the 
Participating Industrial User to forego sampling of a pollutant if the 
Participating Industrial User has demonstrated through sampling and 
other technical factors, including a comparison of three years of 
effluent data with background data, that the pollutant is not expected 
to be present in quantities greater than the background influent 
concentration to the industrial process, and the Participating 
Industrial User certifies on each report, with the following statement, 
that there has been no increase in the pollutant in its wastestream due 
to activities of the Participating Industrial User. The following 
statement is to be included as a comment to the periodic reports 
required by Sec. 403.12(e):

    ``Based on my inquiry of the person or persons directly 
responsible for managing compliance with the pretreatment standard 
for 40 CFR ______, I certify that, to the best of my knowledge and 
belief, the raw materials, industrial processes, and potential by-
products have not contributed this pollutant to the wastewaters 
since filing of the last periodic report under 40 CFR 403.12(e).''

    (e) If the average daily loading from the Participating Industrial 
Users to the Owatonna Waste Water Treatment Facility is equal to or 
less than 0.68 pounds per day of chromium, 0.25 pounds per day of 
copper, 1.17 pounds per day of nickel, and 1.01 pounds per day of zinc, 
Owatonna may authorize a categorical Participating Industrial User to 
satisfy the reporting requirements of Sec. 403.12(e) with an annual 
report provided on a date specified by Owatonna, provided that the 
Participating Industrial User has no reasonable potential to violate a 
Pretreatment Standard for any pollutant for which reduced monitoring is 
being allowed, and has not been in Significant Noncompliance within the 
previous three years.
    (f) The Owatonna Waste Water Treatment Facility in Owatonna, 
Minnesota shall post public notice of all Significant Noncompliance 
subject to the publication requirement in Sec. 403.8(f)(2)(vii) at the 
Minnesota Pollution Control Agency website for a period of one year, as 
soon as practicable upon identifying the violations. In addition, the 
Owatonna Waste Water Treatment Facility shall post an explanation of 
how Significant Noncompliance is determined, and a contact name and 
phone number for information regarding other, non-Significant 
Noncompliance violations. If a violation is not corrected within thirty 
(30) calendar days or results in pass through or interference at the 
Owatonna Waste Water Treatment Facility, publication must also be made 
in the format specified in Sec. 403.8(f)(2)(vii).
    (g) The provisions of this section shall expire on October 6, 2005.

[FR Doc. 00-25746 Filed 10-5-00; 8:45 am]
BILLING CODE 6560-50-P