[Federal Register Volume 65, Number 215 (Monday, November 6, 2000)]
[Rules and Regulations]
[Pages 66502-66511]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28419]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 132

[FRL-6896-9]
RIN 2040-AD66


Identification of Approved and Disapproved Elements of the Great 
Lakes Guidance Submission From the State of Wisconsin, 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 Wisconsin. 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

[[Page 66503]]

in the portion of Wisconsin within the Great Lakes System where the 
State either failed to adopt required elements or adopted elements that 
are inconsistent with the Guidance.

DATES: 40 CFR 132.6(f), (h)-(j) is effective on December 6, 2000. 40 
CFR 132.6(g) is effective on February 5, 2001. To the extent this 
action, or portion thereof, is subject to judicial review pursuant to 
section 509(b) of the Clean Water Act, 33 U.S.C. 1369(b), it is 
considered issued for purposes of judicial review as 1 p.m., Eastern 
Standard time on November 20, 2000, as provided in 40 CFR 23.2.

ADDRESSES: The public docket for EPA's final actions with respect to 
the Guidance submission of the State of Wisconsin is available for 
inspection and copying at U.S. EPA Region 5, 77 West Jackson Blvd., 
Chicago, IL 60604 by appointment only. Appointments may be made by 
calling Mery Jackson-Willis (telephone 312-886-3717).

FOR FURTHER INFORMATION CONTACT: Mark Morris (4301), U.S. EPA, Ariel 
Rios Building, 1200 Pennsylvania Avenue., NW, Washington, DC 20460 
(202-260-0312); or Mery Jackson-Willis, U.S. EPA Region 5, 77 West 
Jackson Blvd., Chicago, IL 60604 (312-353-3717).

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 Wisconsin. Potentially affected categories 
and entities include:

------------------------------------------------------------------------
                                       Examples of potentially affected
              Category                            entities
------------------------------------------------------------------------
 Industry.........................  Industries discharging to waters
                                     within the Great Lakes System as
                                     defined in 40 CFR 132.2 in
                                     Wisconsin.
 Municipalities...................  Publicly-owned treatment works
                                     discharging to waters within the
                                     Great Lakes System as defined in 40
                                     CFR 132.2 in Wisconsin.
------------------------------------------------------------------------

    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 
document 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 40 CFR part 132 effective in 
any State in 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

[[Page 66504]]

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 document 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 documents 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 document fulfills EPA's obligations under that Consent Decree 
with respect to the State of Wisconsin. EPA has completed its final 
actions with respect to the States of Illinois, Indiana, Michigan, 
Minnesota, New York, Ohio, and Pennsylvania. EPA notes that Wisconsin's 
Guidance submission 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 Wisconsin'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 Wisconsin, EPA explains below its 
reasons for concluding that Wisconsin failed to adopt requirements that 
are consistent with the Guidance. Additional explanation of EPA's 
conclusions are contained in EPA's correspondence with Wisconsin 
(identified in relevant sections below) where EPA initially identified 
inconsistencies in the State's submission, as well in documents 
prepared for Wisconsin entitled, ``Wisconsin Provisions Being Approved 
as Being Consistent With the Guidance,'' ``Analysis of Whether 
Wisconsin Has Adopted Requirements Consistent With the Guidance'' and 
``Analysis of Steps Taken By Wisconsin in Response to EPA's 90-Day 
Letter.'' Notice of the availability of EPA's correspondence with 
Wisconsin was published in the Federal Register and EPA has considered 
all public comments received regarding any conclusions as to whether 
Wisconsin 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 
Wisconsin's NPDES permitting program under section 402 of the CWA and 
as revisions to Wisconsin's water quality standards under section 303 
of the CWA. Today's document identifies those approved elements. 
Additional explanations of EPA's review of and conclusions regarding 
Wisconsin'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 Wisconsin entitled, 
``Wisconsin Provisions Being Approved as Being Consistent With the 
Guidance,'' ``Analysis of Whether Wisconsin Has Adopted Requirements 
Consistent With the Guidance'' and ``Analysis of Steps Taken By 
Wisconsin in Response to EPA's 90-Day Letter.''

C. Today's Final Action

    On June 13, 2000, EPA issued a letter notifying the Wisconsin 
Department of Natural Resources (WDNR) that, while the State of 
Wisconsin 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 June 22, 2000, EPA published in the 
Federal Register a notice of and solicitation of public comment on its 
June 13, 2000 letter. 65 FR 38830. EPA has completed its review of all 
public comments on the June 13, 2000, letter and has determined that, 
with the exceptions described below, Wisconsin has adopted requirements 
consistent with all aspects of the Guidance. Specifically, Wisconsin 
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 three 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, with three exceptions 
described below. As explained more fully below, Wisconsin has not 
adopted requirements consistent with (1) the acute and chronic aquatic 
life criteria in Table 1 of part 132 for copper and nickel, and the 
chronic aquatic life criterion in Table 2 of part 132 for endrin and 
selenium, (2) the provisions governing total maximum loads in procedure 
3 in appendix F to 40 CFR part 132, (3) the provisions governing 
consideration of intake pollutants in determining reasonable potential 
and establishing WQBELs in paragraphs D and E of procedure 5 in 
appendix F to 40 CFR part 132, and (4) the provisions for determining 
reasonable potential for whole effluent toxicity set forth in paragraph 
D of procedure 6 in appendix F to 40 CFR part 132.
    EPA's June 13, 2000, letter concluded that some of the provisions 
that EPA is now approving authorized the State to act consistent with 
the Guidance, but provided inadequate assurance that the State would 
exercise its discretion consistent with the Guidance. Subsequent to 
that letter, WDNR provided additional materials, including an Addendum 
to its Memorandum of

[[Page 66505]]

Agreement (MOA) with EPA regarding the State's approved NPDES program 
in which WDNR commits to always exercise its discretion under those 
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. These materials have demonstrated to EPA that the 
State will implement its program (with the exceptions identified below) 
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 ``Wisconsin Provisions Approved as 
Being Consistent With the Guidance,'' ``Analysis of Whether Wisconsin 
Has Adopted Requirements Consistent With the Guidance'' and ``Analysis 
of Steps Taken By Wisconsin in Response to EPA's 90-Day Letter.''
    EPA has determined that Wisconsin's acute and chronic aquatic life 
criteria for copper and nickel in Wis. Adm. Code NR 105, Tables 2 and 6 
are not consistent with those in Tables 1 and 2 of part 132; and 
chronic aquatic life criterion for endrin in Wis. Adm. Code NR 105, 
Table 5 is not consistent with that in Table 2 to 40 CFR part 132. With 
respect to copper and nickel, Wisconsin acknowledged in an October 11, 
2000, letter to EPA that it made mathematical errors which resulted in 
criteria that were higher than (less protective than) criteria that 
Wisconsin believes would have been consistent with the Guidance had the 
errors not been made. Wisconsin also acknowledged that it did not 
consider certain toxicological data incorporated into the Guidance 
criterion in deriving its chronic aquatic life criterion for endrin, 
which in turn resulted in a criterion that is less stringent than that 
required by the Guidance. Wisconsin intends to initiate rulemaking to 
correct these errors, but will be unable to complete that rulemaking 
before October 31, 2000, which is the date by which EPA is required 
under its Consent Decree with the National Wildlife Federation and the 
Lake Michigan Federation to take final action on Wisconsin's 
submission.
    Based upon the above, EPA finds that Wisconsin has failed to adopt 
acute and chronic aquatic life criteria for copper and nickel 
consistent with those in Tables 1 and 2 of part 132, and has failed to 
adopt a chronic aquatic life criterion for endrin consistent with that 
in Table 2 to 40 CFR part 132, as required by 40 CFR 132.3. EPA, 
therefore, disapproves Wisconsin's acute and chronic aquatic life 
criteria for copper and nickel in Wis. Adm. Code NR 105, Tables 2 and 
6, and chronic aquatic life criterion for endrin in Wis. Adm. Code NR 
105, Table 5, to the extent they apply to waters of the Great Lakes 
System, and has determined that the acute and chronic aquatic life 
criteria for copper and nickel in Tables 1 and 2 of part 132 and the 
chronic aquatic life criterion for endrin in Table 2 to 40 CFR part 132 
shall apply to the waters of the Great Lakes System in the State of 
Wisconsin.
    As noted above, Wisconsin intends to initiate rulemaking to adopt 
criteria that are consistent with those in the Guidance for these three 
parameters. EPA will work closely with WDNR to insure that these 
criteria will be consistent with the Guidance. WDNR will then submit 
its criteria to EPA for review pursuant to section 303(c) of the CWA, 
and, if EPA approves those revisions, EPA will revise its regulations 
so that the Guidance criteria will no longer apply to the waters within 
the Great Lakes System in the State of Wisconsin.
    EPA is also disapproving Wisconsin's failure to adopt and submit to 
EPA a chronic aquatic life water quality criterion for selenium. 40 CFR 
132.3(b) mandates that each Great Lakes State adopt numeric water 
quality criteria that are consistent with the chronic water quality 
criteria for the protection of aquatic life contained in Table 2 of 
part 132 (or with site-specific modifications of those criteria adopted 
in accordance with the Guidance). Table 2 contains a chronic water 
quality criterion for selenium of 5 micrograms per liter (<greek-m>g/
L). Currently, Wisconsin's water quality standards do not contain a 
chronic aquatic life criterion for selenium. The absence of any water 
quality criterion in Wisconsin's standards to ensure the protection of 
aquatic life from chronic adverse effects due to selenium is 
inconsistent with the Guidance.
    EPA did not identify the omission of the selenium criterion from 
the State's submission in its June 13, 2000, letter to the State, but 
subsequently became aware of this deficiency very near the close of 
this proceeding. Because the absence of the selenium criterion is 
clearly inconsistent with the Guidance, and in light of EPA's 
obligation under the consent decree in National Wildlife Federation v. 
Browner, Civ. No. 99-3025-HHK (D.D.C.), EPA has taken final action on 
the entirety of the State's submission, including the omission of the 
chronic aquatic life criterion for selenium. EPA recognizes however, 
that it has not previously notified the State of EPA's conclusion 
regarding the selenium criterion, and provided the 90-day period 
contemplated in EPA regulations for the State to take corrective 
action. To provide the State with this opportunity, EPA has established 
an effective date for the selenium criterion in today's rule of 90 days 
from today. If Wisconsin corrects this deficiency and adopts a selenium 
criterion consistent with the Guidance during this period, EPA will 
take action to withdraw the selenium criterion prior to its effective 
date. If the State does not take corrective action in this time frame, 
the selenium criterion in today's rule will go into effect 90 days from 
today. As with the other aspects of today's rule, if the State 
subsequently cures this deficiency and adopts a criterion for selenium 
that is approved by EPA, EPA will amend today's rule to remove the 
selenium criterion.
    EPA also has determined that procedure 3 in appendix F to 40 CFR 
part 132 shall apply with regard to development of total maximum daily 
loads (TMDLs) for the Great Lakes System in the State of Wisconsin. EPA 
has made this determination because Wisconsin simply has not adopted 
specific requirements for developing TMDLs in the Great Lakes System 
that correspond to those in procedure 3 of appendix F. Wisconsin has 
enacted a statutory requirement at Wis. Stat. 283.83(3), and has 
adopted a regulatory requirement at Wis. Adm. Code NR 106.11, that 
generally require WDNR to develop TMDLs. Wisconsin also has adopted at 
Wis. Adm. Code NR 212 detailed regulatory requirements for how WDNR 
must develop TMDLs for a number of pollutants that are not subject to 
the Guidance (see Table 5 of 40 CFR part 132). However, Wisconsin has 
not adopted similar, detailed provisions governing development of TMDLs 
for pollutants that are subject to the Guidance (i.e., all pollutants 
other than those in Table 5 of 40 CFR part 132).
    Given the complete absence of any specific requirements governing 
development of TMDLs in the Great Lakes System in Wisconsin for 
pollutants subject to the Guidance, it is necessary for EPA to specify 
that the provisions of procedure 3 of appendix F to 40 CFR part 132 
apply in the Great Lakes System in the State of Wisconsin. EPA notes 
that this promulgation has no effect on the chemical-specific 
reasonable potential procedures at Wis. Adm. Code NR 106.05 and 
106.06(1) , (3)-(5), & (7)-(10) which EPA approves as being consistent 
with the reasonable potential procedures in paragraphs A through C and 
F of procedure 5 in appendix F to 40 CFR part 132. These State 
procedures, therefore, apply in the

[[Page 66506]]

Great Lakes System in the State of Wisconsin for purposes of developing 
wasteload allocations in the absence of a TMDL and developing 
preliminary effluent limitations in making chemical-specific reasonable 
potential determinations.
    EPA also has determined that two provisions in Wisconsin's rules, 
Wis. Adm. Code NR 106.06(06) and Wis. Adm. Code NR 106.10(1), are 
inconsistent with procedure 5 in appendix F to 40 CFR part 132. Section 
301(b)(1)(C) of the CWA requires all NPDES permits to include effluent 
limitations more stringent than technology-based limits when necessary 
to meet State water quality standards in the receiving waterbody. To 
implement this requirement, EPA has established a two-step water 
quality-based permitting approach. A discharge of pollutants must first 
be evaluated to determine whether it will cause, have the reasonable 
potential to cause, or contribute to an excursion above any State water 
quality standard (i.e., whether the discharge poses ``reasonable 
potential''). 40 CFR 122.44(d)(1)(i) and (ii). If reasonable potential 
exists, then the discharge must be subject to water quality-based 
effluent limitation that will ensure ``the level of water quality to be 
achieved by limits on point sources * * * is derived from, and complies 
with all applicable water quality standards.'' 40 CFR 
122.44(d)(1)(vii)(A). Procedure 5 of the Guidance implements, and 
elaborates on, these requirements. It requires the permitting authority 
to characterize pollutant levels in a discharge, and determine whether 
those levels, if left uncontrolled, would cause, or have the reasonable 
potential to cause, or contribute to a violation of water quality 
standards. See procedure 5.A-C. If the permitting authority makes an 
affirmative reasonable potential determination, it must impose water 
quality-based effluent limitations (``WQBELs'') to ensure compliance 
with water quality standards. See procedure 5.F.2.
    One of the principal issues considered in the development of the 
Guidance was the appropriate approach for establishing wasteload 
allocations for point sources (upon which WQBELs are based) where the 
``background'' levels of the pollutant in a waterbody exceed applicable 
water quality criteria for that pollutant. The proposed Guidance 
included a requirement to set the wasteload allocation at zero, in the 
absence of a multiple source TMDL, for any pollutant discharged into a 
waterbody already exceeding water quality criteria for that pollutant. 
See procedures 3A.C.4 and 3B.C.3 (58 FR 21046, April 16, 1993). This 
``high background'' provision was not included in the final Guidance 
because the Agency concluded that a multitude of factors would need to 
be considered in establishing wasteload allocations and WQBELs in this 
situation. See Supplemental Information Document for the Water Quality 
Guidance for the Great Lakes System (EPA, 3/23/95) (``SID'') at 285. 
Possible permitting approaches discussed in the SID ranged from 
prohibiting the discharge of the pollutant altogether to allowing no 
greater than discharge at the criteria itself (i.e., ``criteria end-of-
pipe''). See SID at 339.
    EPA also addressed ``high background'' pollutants by establishing 
specialized provisions for discharges of pollutants contained in a 
facility's intake water (``intake pollutants'') in paragraphs D and E 
of procedure 5. Where a facility removes water with high background 
pollutant levels and then subsequently discharges the same level of 
pollutants back into the same waterbody, the discharge does not pose 
environmental concerns comparable to where a facility introduces 
pollutants into the waterbody for the first time.
    Procedure 5.D allows a finding that a water quality-based effluent 
limit is not needed for a particular pollutant that originates in the 
intake water and simply passes through the facility and is discharged 
without any adverse effect (that would not have occurred had the intake 
pollutant stayed in-stream). Among other things, eligibility for this 
finding under the Guidance requires a showing that:
    i. The facility withdraws 100 percent of the intake water 
containing the pollutant from the same body of water into which the 
discharge is made;
    ii. The facility does not contribute any additional mass of the 
identified intake pollutant to its wastewater;
    iii. The facility does not alter the identified intake pollutant 
chemically or physically in a manner that would cause adverse water 
quality impacts to occur that would not occur if the pollutants were 
left in-stream;
    iv. The facility does not alter the identified intake pollutant 
concentration, as defined by the permitting authority, at the edge of 
the mixing zone, or at the point of discharge if a mixing zone is not 
allowed, as compared to the pollutant concentration in the intake 
water, unless the increased concentration does not cause or contribute 
to an excursion above an applicable water quality standard; and
    v. The timing and location of the discharge would not cause adverse 
water quality impacts to occur that would not occur if the identified 
intake pollutant were left in-stream.
    If an intake pollutant does not meet the above five criteria and 
effluent limitations are needed, paragraph E of procedure 5 allows a 
facility to discharge the same mass and concentration of pollutants 
that are present in its intake water (i.e., ``no net addition''), 
provided the discharge is to the same body of water and certain other 
conditions are met. Under the Guidance, an intake pollutant is from the 
same body of water if the intake pollutant ``would have reached the 
vicinity of the outfall point in the receiving water within a 
reasonable period had it not been removed by the permittee.'' Procedure 
5.D.2.b. EPA determined that allowing discharge at background levels, 
even though above applicable criteria, would be both environmentally 
protective and consistent with the requirements of the CWA where a 
pollutant is simply being moved from one part of the waterbody to 
another that it would have reached in any event. However, if the 
pollutant is from a different body of water, ``no net addition'' 
limitations are not available because, in such a case, the facility is 
introducing a pollutant to a waterbody for the first time (i.e., the 
pollutant would not be introduced to the waterbody but for the 
discharge). Because the waterbody is already exceeding applicable water 
quality criteria the Guidance requires a more stringent approach to 
ensure the discharge does not exacerbate the water quality standards 
violation--i.e., effluent limitations based on the most stringent 
applicable water quality criterion for the receiving water. See 
procedure 5.E.4.
    Wisconsin's regulations contain a provision that addresses 
discharges into waters where background levels exceed applicable water 
quality criteria. Wis. Adm. Code NR 106.06(6). If 10 percent of a 
pollutant to be discharged by a facility is from the same body of water 
as the discharge, Wisconsin's procedure requires that permit 
limitations for the entire discharge be set at background levels, 
except that more stringent limitations may be established when the 
existing treatment system has a demonstrated cost-effective ability to 
achieve regular and consistent compliance with a limitation more 
stringent than the representative background concentration. Wis. Adm. 
Code NR 106.06(6)(c). Where at least 90 percent of the wastewater is 
from groundwater or a drinking water supply, the permitting authority 
is to establish limits equal to the lowest applicable

[[Page 66507]]

water quality criteria, except that limitations up to background levels 
are allowed if reasonable, practical or otherwise required steps are 
taken to minimize the level of the pollutant discharged. Wis. Adm. Code 
NR 106.06(6)(a) and (b). In either situation, the department may allow 
alternative limitations, including limitations above background levels, 
in the form of numerical limits, monitoring requirements, or a cost-
effective pollutant minimization plan. Wis. Adm. Code NR 106.06(6)(d).
    Wisconsin's approach differs significantly from, and is not as 
protective as, procedure 5 of the Guidance. Most importantly, procedure 
5 only allows effluent limitations to be set above water quality 
criteria at ``background'' levels (i.e., ``no net addition'' 
limitations under procedure 5.E) for intake pollutants that are taken 
from, and returned to, the same body of water. Any pollutants 
transferred from a different body of water must meet limitations based 
on the most stringent applicable water quality criterion. See procedure 
5.E.4. Where a facility's discharge combines pollutants from the same 
and different bodies of water, effluent limitations may be derived 
using flow-weighting to reflect the two permitting approaches. See 
procedure 5.E.5. Wisconsin's procedure, on the other hand, effectively 
allows any facility covered by its provision to discharge its entire 
waste stream at background levels (and potentially even higher in 
accordance with Wis. Adm. Code NR 106.06(d)), regardless of whether the 
pollutant originated from the same body of water, a different body of 
water, or the facility generated the pollutant itself. Indeed, 
Wisconsin's procedure would even allow the permit writer to not include 
effluent limitations at all. Because Wisconsin's procedure allows the 
permitting authority to adopt less stringent effluent limitations than 
would be allowed by the Guidance, and even allows the permitting 
authority to not include any effluent limitations in situations where 
the Guidance would require one, the State's procedure is inconsistent 
with the Guidance.
    Wisconsin's approach is also inconsistent with the fundamental 
principles underlying the Guidance permitting procedures. The Guidance 
allows effluent limitations at ``background'' levels for intake 
pollutants from the same body water because, in that circumstance, 
``the discharge containing the identified intake pollutant of concern 
effectively has no impact on the receiving water that would not 
otherwise occur if the pollutant were left in stream.'' See SID at 370. 
In contrast, Wisconsin's approach allows facilities to discharge 
pollutants that were not previously in the waterbody (pollutants either 
generated by the facility itself or intake pollutants from a different 
body of water), and to do so at levels greater than the applicable 
water quality criteria. Since the receiving waterbody is already 
exceeding applicable water quality criteria, such discharges have the 
strong potential to exacerbate the water's non-compliance with 
standards, and permits authorizing such discharges would not meet the 
underlying requirement to establish effluent limitations that ensure 
water quality achieved by point sources derives from and complies with 
water quality standards. 40 CFR 122.44(d)(1)(vii)(A).
    This conclusion is not changed by the fact that Wisconsin's 
procedures provide for limitations to be set at levels below background 
based on practicability considerations, as provided in Wis. Adm. Code 
NR 106.06(6)(b) and (c)2. The CWA does not contain an exception to the 
requirement to meet water quality standards based on considerations of 
technical feasibility. To the contrary, the Act requires discharges to 
meet technology-based requirements and ``any more stringent 
limitations, including those necessary to meet water quality 
standards.'' CWA section 301(b)(1)(C) (emphasis added). When EPA 
developed the Guidance, EPA expressly evaluated and rejected 
Wisconsin's approach on the grounds that it would ``substitute the 
feasibility of pollution control for consideration of water quality 
standards as the basis for deriving WQBELs.'' See SID at 352. Procedure 
5 of the Guidance does not permit loosening of water quality-based 
effluent limitations based on consideration of feasibility. Therefore, 
Wisconsin's procedure is not as protective as the Guidance.
    Finally, the Wisconsin approach is not as protective as the 
Guidance because it fails to include the important restrictions 
contained in the Guidance to ensure that all possible adverse impacts 
that could result from the discharge of intake pollutants are 
considered in determining whether limits are needed. The Guidance 
prohibits ``no net addition'' limitations where the facility alters the 
intake pollutant chemically or physically in a manner that would cause 
adverse water quality impacts to occur that would not occur if the 
pollutant were left in-stream, or the timing and location of the 
discharge would increase the adverse effects of the pollutants. 
Procedures 5.D.3.b.iii and v; 5.E.3.a. The absence of these 
restrictions in the Wisconsin submission is inconsistent with the 
Guidance.
    For the reasons described above, EPA finds that Wis. Adm. Code NR 
106.06(6) is inconsistent with procedure 5 of appendix F of 40 CFR part 
132.
    EPA also finds Wisconsin's cooling-water exemption at Wis. Adm. 
Code NR 106.10(1) to be inconsistent with the intake pollutant 
procedures of the Guidance. That provision prohibits the NPDES 
permitting authority from imposing WQBELs on discharges of non-contact 
cooling waters, which do not contain additives. Even when additives are 
used, Wis. Adm. Code NR 106.10(1) categorically prohibits the 
permitting authority from imposing WQBELs for ``compounds at a rate and 
quantity necessary to provide a safe drinking water supply, or the 
addition of substances in similar type and amount to those substances 
typically added to a public drinking water supply.'' Wisconsin's rules 
do not contain any of the limitations set forth in the Guidance at 
paragraph 5.3.b of appendix F discussed above, which ensure that all 
potential environmental effects are considered in regulating the 
discharge of intake pollutants.
    Nothing in the Guidance allows for a categorical exclusion for non-
contact cooling water discharges (with or without additives) from the 
need for evaluating whether WQBELs are needed to ensure compliance with 
water quality standards. A major premise of the provisions in the 
Guidance pertaining to determining reasonable potential in paragraphs 
A-C of procedure 5, as well as the intake pollutants addressed by 
paragraphs D and E, is that decisions on the need for, and calculation 
of, WQBELs must occur on a case-by-case basis because there is no way 
to categorically determine that a particular group of discharges will 
have the same impact on any particular body of water. Without such an 
evaluation, it is not possible to make a reliable determination that 
limitations are being imposed that are needed to meet water quality 
standards, as required by section 301(b)(1)(C) of the CWA. EPA 
recognizes that it is possible to develop a framework for considering 
classes of discharges based upon their common characteristics (e.g., 
certain categories of non-contact cooling water) that accounts for the 
factors identified in the Guidance to determine whether their discharge 
will cause or has the reasonable potential to cause or contribute to an 
exceedance of water quality standards. This is evidenced by EPA's 
approval of once-through non-contact cooling water provisions in

[[Page 66508]]

other Great Lakes States. Wisconsin, however, has not tailored its 
procedure in this manner or supplied any analysis why the exempt 
category of discharges never require the imposition of WQBELs. Instead, 
the State has provided a broad, blanket exemptions from water quality-
based permitting requirements for non-contact cooling water discharges 
regardless of the impacts on the receiving water of those discharges. 
EPA clearly stated that it would not consider such exemptions 
consistent with the Guidance. See SID at 384-85. EPA, therefore, finds 
that Wisconsin's non-contact cooling water provisions at Wis. Adm. Code 
NR 106.06(10)(1) are not consistent with the Guidance.
    Based upon the above, EPA disapproves the provisions at Wis. Adm. 
Code NR 106.06(6) and Wis. Adm. Code NR 106.06(10)(1) to the extent 
they apply to waters of the Great Lakes System as inconsistent with 
procedure 5 in appendix F of 40 CFR part 132 and has determined that 
paragraphs D and E of procedure 5 in appendix F to 40 CFR part 132 
shall apply to the waters of the Great Lakes System in the State of 
Wisconsin. As described in the record for today's action, EPA has 
approved Wisconsin's basic procedure at Wis. Adm. Code NR 106.05 for 
determining reasonable potential for specific chemicals as consistent 
with the Guidance, and that procedure will continue to govern 
reasonable potential determinations by the State within the Great Lakes 
System. In light of EPA's disapproval of Wis. Adm. Code NR 106.06(6) 
and Wis. Adm. Code NR 106.06(10)(1), those provisions are not an 
effective component of the State's NPDES program within the Great Lakes 
System and cannot serve as the basis for making reasonable potential 
determinations and establishing effluent limitations in issuing NPDES 
permits. See 40 CFR 123.63(b)(4) (NPDES program revisions are effective 
upon approval by EPA). Therefore, discharges of pollutants will be 
governed by the State's reasonable potential procedures in Wis. Adm. 
Code NR 106.05, subject to the flexibility available under the intake 
pollutant procedures contained in today's rule.
    EPA also has determined that Wisconsin's provisions at Wis. Adm. 
Code NR 106.08(5) for determining reasonable potential for a discharge 
to cause or contribute to an exceedance of Wisconsin's narrative 
criteria at Wis. Adm. Code NR 102.04(1) prohibiting the discharge of 
toxic substances in toxic amounts are inconsistent with paragraph D of 
procedure 6 in appendix F to 40 CFR part 132. The Guidance procedure 
for evaluating reasonable potential for whole effluent toxicity (WET) 
is based on comparing a projected 95th percentile WET value at a 95 
percent confidence level with the acute and chronic WET criteria after 
accounting for any available dilution. In most cases where there is 
quantifiable effluent data, EPA's procedure will project an effluent 
value greater than the maximum observed value (using factors to account 
for effluent variability and size of the data set) to characterize the 
reasonable worst case effluent. This conservative approach is designed 
to ensure that WQBELs are imposed when there is a reasonable potential 
for toxicity, taking into account the effluent variability and the size 
of the data set, even if no toxicity has actually been observed.
    In evaluating State reasonable potential procedures for WET, EPA 
looked for an equivalent level of protection to that provided by the 
Guidance procedure. In the case of a procedure to determine when a 
WQBEL is needed, one important consideration is whether the alternative 
procedure would indicate the need for a WQBEL in similar situations to 
those that would trigger a WQBEL under paragraph D of procedure 6.
    Wisconsin's procedures at Wis. Adm. Code NR 106.08(5) rely on the 
comparison of the geometric mean toxicity multiplied by the fraction of 
the available toxicity values that fail WET requirements to derive a 
WET reasonable potential factor (RPF). If the calculated RPF is greater 
than 0.3, a limit is required. Because effluent monitoring results are 
averaged under the Wisconsin approach, the importance of individual 
sample showing high levels of toxicity is diminished in determining the 
need for a limit. Indeed, Wisconsin's procedure would allow the State 
to not impose a limit even where actual toxicity has been observed in 
WET tests on the effluent, a result clearly inconsistent with the 
Guidance. Wisconsin's regulation also allows the permit writer not to 
even undertake a reasonable potential analysis if there are fewer than 
five data points to calculate the RPF, while the Guidance requires a 
reasonable potential analysis where even where there is only one data 
point. Each of these characteristics of the Wisconsin procedure means 
that it is possible to reach a determination that a limit is not 
necessary even when an actual observed value would violate potential 
permit limits. This is clearly inconsistent with paragraph D of 
procedure 6.
    Based upon the above, EPA finds that Wisconsin has failed to adopt 
procedures governing WET reasonable potential consistent with those in 
paragraph D of procedure 6 in appendix F to 40 CFR part 132. EPA, 
therefore, disapproves Wisconsin's provisions at Wis. Adm. Code NR 
160.08(5) to the extent they apply to waters of the Great Lakes System, 
and has determined that the provisions in paragraph D of procedure 6 in 
appendix F to 40 CFR part 132 shall apply for discharges into the Great 
Lakes System in the State of Wisconsin.
    As noted above, EPA, in this document, is not taking action to 
approve or disapprove portions of Wisconsin's Guidance submission 
pertaining to NPDES permitting and water quality standards issues that 
are not addressed by the Guidance. Therefore, EPA is not taking action 
under section 118 with regard to the following issue. However, EPA 
wishes to describe its understanding with regard to one aspect of 
Wisconsin's submission that is not addressed by the Guidance. 
Specifically, Wis. Adm. Code NR 106.07(6)(c) provides that effluent 
levels that are below the level of quantification (LOQ) are generally 
deemed to be in compliance with WQBELs that are below the LOQ. EPA 
expressed concern in its June 13, 2000, letter to Wisconsin that, to 
the extent this provision suggested that effluent levels that exceeded 
the WQBEL but that were below the LOQ would be deemed to be in 
compliance with the WQBEL, this provision would be inconsistent with 
the requirement in paragraph A of procedure 8 in appendix F to 40 CFR 
part 132 that such WQBELs must be specified in the NPDES permit as the 
enforceable effluent limit.
    WDNR has clarified that, consistent with the Guidance, it is 
required to specify the WQBEL in the permit as the enforceable limit in 
these situations and that Wis. Adm. Code NR 106.07(6)(c) only relates 
to the exercise by WDNR of its enforcement discretion, not the 
authority of the federal government or third parties in a citizen suit 
to enforce the WQBEL as calculated. Moreover, WDNR has agreed in an 
addendum to its MOA with EPA that it will not include the language of 
Wis. Adm. Code NR 106.07(6)(c) in NPDES permits. Given WDNR's 
clarification regarding the meaning of Wis. Adm. Code NR 106.07(6)(c), 
EPA no longer believes that Wis. Adm. Code NR 106.07(6)(c) is relevant 
to the question of whether WDNR has adopted requirements consistent 
with the Guidance, and so EPA is not taking action at this time to 
either approve or disapprove that provision. EPA notes that revisions 
to State NPDES programs do not become

[[Page 66509]]

effective until approved by EPA (40 CFR 123.62(b)(4)), that EPA has 
concerns regarding the appropriateness of the State's limitation on its 
own enforcement authority, and that WDNR intends to review and 
potentially revise its rules to address EPA's concerns.

D. Public Comments

    EPA received public comments from two commenters in response to its 
Federal Register notice of the availability of its June 13, 2000 letter 
to the State of Wisconsin. EPA has responded to those comments in a 
document entitled ``EPA's Response to Comments Regarding the Great 
Lakes Guidance Submission of the State of Wisconsin'' 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: One commenter asserted that EPA should have provided the 
public with 90 days, rather than 45, to comment on EPA's June 13, 2000, 
letter to the State of Wisconsin setting forth EPA's initial views 
regarding whether Wisconsin had adopted requirements consistent with 
the Guidance.
    Response: The final rule being promulgated by EPA makes certain 
provisions of 40 CFR part 132 applicable to the Great Lakes System in 
Wisconsin. 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, EPA 
provided public notice of the availability of, and solicited comment 
on, the NPDES portions of Wisconsin's Guidance submission in a Federal 
Register document (63 FR 10221) dated March 2, 1998. In a Federal 
Register document (65 FR 38830 ) dated June 22, 2000, EPA subsequently 
provided notice of the availability of its June 13, 2000, letter to 
Wisconsin 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. 
EPA has complied with all applicable public participation requirements, 
and believes that the 45 day period for commenting on its June 13, 
2000, letter to Wisconsin was adequate.
    Comment: One commenter asserts that EPA's treatment of intake 
pollutants in the Guidance is technically flawed and economically 
unachievable because they could require the treatment of up to one 
billion gallons per day of non-contact cooling water at a power plant. 
According to the commenter, the power plant in such a scenario would 
have to either install wastewater treatment equipment at a cost of tens 
or hundreds of millions of dollars or to shut down. The commenter 
asserts that a better approach would be to determine the sources of the 
background pollutants of concern and to determine if there are other 
technically and economically feasible options for improving water 
quality.
    Response: To the extent this commenter is asserting that the 
Guidance itself improperly addresses intake pollutants, EPA reiterates 
that it has not reopened the Guidance for revisions and therefore such 
comments are not within the scope of EPA's current action, which is to 
determine whether Wisconsin has submitted provisions consistent with 
the Guidance.
    EPA is disapproving the Wisconsin provision that prohibits WQBELs 
for non-contact cooling water as being inconsistent with the Guidance 
for the reasons stated above. EPA believes the commenter's conclusion 
that power plants will have to treat billions of gallons of water or 
shut down is speculative and overstated. EPA expects that in many 
cases, especially where no additives are used, once-through non-contact 
cooling water will qualify for intake pollutant relief under the 
Guidance provisions being promulgated for application to discharges to 
the Great Lakes Basin in Wisconsin. In any case, the application of the 
intake pollutant procedures of the Guidance to a particular discharger 
is fundamentally a site-specific evaluation. The particular 
characteristics of a facility's intake water and effluent, the manner 
in which the intake pollutants are handled by the facility and the 
resulting effect of that handling on the potential adverse effects of 
such pollutants in the receiving water, as well as the nature of the 
receiving water itself, all must be considered to determine what 
regulatory controls, if any, are needed under the Guidance. Thus, 
without a full record, it is not possible for us to address fully the 
concerns raised by this commenter, or predict how the rule being 
promulgated today will apply to any particular facility.
    In addition, there are two other mechanisms set forth in the 
Guidance for addressing the commenter's concern. First, as EPA 
explained in several places in the SID, the best means for States and 
Tribes to address comprehensively the root causes of non-attainment of 
water quality standards is the TMDL development process. See, e.g., SID 
at 347. (The SID has been included in the record for EPA's 
determination with respect to Wisconsin's Guidance submission.) The 
TMDL procedures for the Great Lakes System are set forth in procedure 3 
of appendix F to 40 CFR part 132. Second, any existing discharger into 
the Great Lakes System can apply for a variance from water quality 
standards where the discharger believes that requiring compliance with 
necessary water quality based effluent limitations ``would result in 
substantial and widespread economic and social impact.'' See 40 CFR 
131.10(g)(6). EPA adopted the intake pollutant procedures in the 
Guidance as an additional, permit-based mechanism for dealing with 
simple removal and transfer of pollutants from one part of a waterbody 
to another, but availability of this mechanism does not preclude use of 
other means of adjusting water quality standards or a particular 
discharger's load reduction responsibilities.
    Comment: One commenter asserts that Wisconsin's approach to 
addressing WET, which the commenter describes as being one that relies 
upon permittees unilaterally (or in a cooperative fashion with the 
WDNR) taking voluntary measures to reduce toxicity rather than upon 
imposition of effluent limitations to control WET, is consistent with 
or superior to that in the Guidance. According to the commenter, 
Wisconsin's voluntary approach to addressing WET is superior to an 
approach that requires imposition of effluent limitations because 
effluent limitations can actually hinder a permittee's ability to 
address toxicity problems. The commenter asserts that this is because 
exceedances of permit limits can have serious legal consequences that 
can often divert the technical staff of both the regulatory agency and 
the permittee away from doing the technical work necessary to identify 
and address the causes of toxicity in the permittee's effluent.
    Response: Paragraph C of procedure 6 in appendix F to 40 CFR part 
132 requires imposition of WQBELs for WET whenever an effluent is or 
may be discharged at a level that will cause, have the reasonable 
potential to cause, or contribute to an excursion above any numeric WET 
criterion or narrative criterion within a State's water quality

[[Page 66510]]

standards (i.e., whenever there is ``reasonable potential''). Paragraph 
D of procedure 6 sets forth procedures for determining reasonable 
potential for WET.
    Wisconsin's rules at Wis. Adm. Code NR 106.08(1), consistent with 
paragraph C of procedure 6, requires that WDNR ``shall establish [WET] 
testing requirements and limitations whenever necessary to meet 
applicable water quality standards as specified in [Wis. Adm. Code] 
chs. NR 102 to 105 as measured by exposure of aquatic organisms to an 
effluent and specified effluent dilutions.'' For the reasons explained 
above, Wisconsin's procedures for determining reasonable potential 
(i.e., for determining whether WET limitations are ``necessary to meet 
applicable water quality standards'') are clearly not consistent with 
paragraph D of procedure 6 because, among other things, it is possible 
under Wisconsin's procedures to reach a determination that a WQBEL is 
not necessary even when an actual observed value would violate 
potential permit limits.
    The commenter's premise is that imposition of WQBELs is actually 
harmful to the environment because the commenter believes that 
imposition of WQBELs results in an expenditure of resources that could 
otherwise be used addressing toxicity problems. The commenter, 
therefore, concludes that Wisconsin's inadequate WET reasonable 
potential should be approved precisely because it does not result in 
imposition of WQBELs.
    EPA does not agree with the commenter's premise that imposition of 
WQBELs is somehow harmful to the environment, and the commenter has 
provided nothing other than vague, conclusory assertions to support the 
premise. Instead, EPA believes that the procedure that determines 
whether or not a permit includes a WQBEL for a particular pollutant or 
parameter (the reasonable potential procedure) is a critical element 
for determining the level of protection that will be achieved when 
implementing a water quality standard. Where a reasonable potential 
procedure is not as protective as the Guidance, a State's WET program 
cannot be considered to achieve the same level of protection as the 
Guidance.
    EPA also notes that in addition to the requirements of procedure 6 
of the Guidance itself, section 301(b)(1)(C) of the CWA requires 
``limitation[s] * * * necessary to meet any applicable water quality 
standard.'' Moreover, EPA's regulations implementing section 
301(b)(1)(C) at 40 CFR 122.44(d)(1)(iv) and (v) require that NPDES 
permits contain ``effluent limits for whole effluent toxicity'' or 
chemical-specific limits in lieu of WET limits, whenever there is 
reasonable potential that a discharge will cause or contribute to an 
in-stream excursion above a numeric criterion for WET or a narrative 
criterion of no toxics in toxic amounts. Therefore, the CWA and EPA's 
implementing regulations require permitting authorities to impose 
WQBELs for WET when there has been a reasonable potential finding, and 
EPA does not believe it would be consistent with the CWA and EPA 
regulations to approve an alternative approach that omits this 
fundamental requirement. EPA notes that, in appropriate cases, a 
permitting authority can include a compliance schedule for the WQBEL 
that would allow for additional monitoring and identification and 
reduction of toxicants, followed by a reassessment of the need for a 
limit or the identification of a specific toxicant rather than WET that 
could be subject to a WQBEL.
    Comment: One commenter asserts that EPA has failed to present 
technical evidence that the Guidance WET reasonable potential 
statistical procedure is technically valid. Specifically, the commenter 
asserts that EPA has not presented any information to prove that WET 
data follow a log-normal distribution.
    Response: The CWA requires the States to adopt policies, standards 
and procedures that are consistent with the Guidance promulgated by 
EPA. 33 U.S.C. 118(c)(2)(C). EPA has reviewed Wisconsin's submission to 
determine its consistency with the Guidance but has not reopened any 
provision of the Guidance in our review. The public had a full 
opportunity to provide its views on the statistical procedure for 
determining WET reasonable potential in paragraph D of procedure 6 
during the rulemaking establishing the Guidance, and the time period 
for challenging the Guidance has passed. See 33 U.S.C. 509(b). 
Therefore, this comment does not provide a basis for allowing Wisconsin 
to adopt WET reasonable potential procedures that are inconsistent with 
those in the Guidance.
    EPA further notes, in response to the comment regarding whether it 
is appropriate to assume that WET data follow a log-normal 
distribution, that although the States have flexibility to adopt 
approaches that make different assumptions about the distribution of 
WET data than is assumed in procedure 6, no one has presented EPA with 
an analysis identifying a different distribution or statistical method 
that fits WET data better, either in general or in a particular case. 
More fundamentally, however, for the reasons explained above, the 
procedure submitted by Wisconsin does not address in any manner the 
underlying premise of procedure 6: that effluent quality is variable 
and, therefore, a method for assessing WET data must account for the 
likelihood that the maximum value in a particular data set is less than 
the true maximum that is likely to be experienced by the environment as 
a result of the discharge. EPA, therefore, concludes that Wisconsin's 
approach is inconsistent with the Guidance.
    Comment: One commenter asserts that EPA is asking Wisconsin to 
adopt TMDL rules that did not exist when the Wisconsin rules were being 
revised.
    Response: EPA promulgated the Guidance at 40 CFR part 132 on March 
23, 1995. Wisconsin subsequently engaged in a proceeding to adopt 
requirements consistent with the Guidance, and Wisconsin did indeed 
revise its rules in that time period in an effort to be consistent with 
the Guidance. EPA, therefore, does not agree that the Guidance required 
Wisconsin to adopt rules that did not exist when the Wisconsin rules 
were being revised.

E. 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 Wisconsin 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 
Wisconsin.

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 40 CFR part 132 promulgated previously by EPA that shall apply to 
discharges in Wisconsin within the Great Lakes

[[Page 66511]]

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 document 
do not constitute rulemaking, EPA has nonetheless received substantial 
public comment on these decisions. See 63 FR 10221 (March 2, 1998) 
(notice of receipt of State Guidance submission and request for 
comment); 65 FR 38830 (June 22, 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) (Public Law 
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 Wisconsin, it does not impose any new costs. The costs 
of 40 CFR 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). 
40 CFR 132.6(f), (h)-(j) is effective on December 6, 2000. 40 CFR 
132.6(g) is effective on February 5, 2001.

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: October 31, 2000.
Carol M. Browner,
Administrator.

    For the reasons set forth above, 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 (f) through (i) to 
read as follows:


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

* * * * *
    (f) Effective December 6, 2000, the acute and chronic aquatic life 
criteria for copper and nickel in Tables 1 and 2 of this part and the 
chronic aquatic life criterion for endrin in Table 2 of this part shall 
apply to the waters of the Great Lakes System in the State of 
Wisconsin.
    (g) Effective February 5, 2001, the chronic aquatic life criterion 
for selenium in Table 2 of this part shall apply to the waters of the 
Great Lakes System in the State of Wisconsin.
    (h) Effective December 6, 2000, the requirements of procedure 3 in 
appendix F of this part shall apply for purposes of developing total 
maximum daily loads in the Great Lakes System in the State of 
Wisconsin.
    (i) Effective December 6, 2000, the requirements of paragraphs D 
and E of procedure 5 in appendix F of this part shall apply to 
discharges within the Great Lakes System in the State of Wisconsin.
    (j) Effective December 6, 2000, the requirements of paragraph D of 
procedure 6 in appendix F of this part shall apply to discharges within 
the Great Lakes System in the State of Wisconsin.

    Dated: October 31, 2000.
Carol M. Browner,
Administrator.
[FR Doc. 00-28419 Filed 11-3-00; 8:45 am]
BILLING CODE 6560-50-P