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[Federal Register Volume 65, Number 219 (Monday, November 13, 2000)]
[Rules and Regulations]
[Pages 67638-67651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28709]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 132

[FRL-6898-7]
RIN 2040-AD32

Final Rule To Amend the Final Water Quality Guidance for the 
Great Lakes System To Prohibit Mixing Zones for Bioaccumulative 
Chemicals of Concern

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today EPA is promulgating the final rule to amend the Final 
Water Quality Guidance for the Great Lakes System (Guidance) to 
prohibit mixing zones for bioaccumulative chemicals of concern (BCCs) 
in the Great Lakes System, subject to certain exceptions for existing 
discharges. For existing discharges, the regulation prohibits mixing 
zones for BCCs starting 10 years after the publication date of the 
final BCC mixing zone rule. New discharges of BCCs are subject to the 
mixing zone prohibition immediately upon commencing discharge. EPA had 
promulgated a mixing zone provision similar to this regulation on March 
23, 1995, as part of the Guidance required by section 118(c)(2) of the 
Clean Water Act. The provision was vacated by the U.S. Court of Appeals 
for the District of Columbia Circuit in the case of American Iron & 
Steel Institute v. EPA, 115 F.3d 979 (D.C. Cir. 1997), and was remanded 
to the Agency for further consideration. In response to the Court's 
remand, EPA published a proposal on October 4, 1999, to amend the 
Guidance to reinstate the provision to prohibit mixing zones for BCCs 
(64 FR 53632). EPA received many comments from stakeholders throughout 
the United States on its proposal to prohibit mixing zones for BCCs in 
the Great Lakes Basin. This final rule reflects EPA's reconsideration 
of the factual record in response to the Court's remand and public 
comments received on its proposal.

EFFECTIVE DATE: December 13, 2000.

ADDRESSES: The public docket for this rulemaking, including the 
proposed rule, economic analysis, and other supporting documents, are 
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 Mary Willis Jackson at (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).

SUPPLEMENTARY INFORMATION:

Potentially Affected Entities

    Entities potentially affected by today's action are those 
discharging or intending to discharge BCCs to waters of the United 
States in the Great Lakes System. Categories and entities that may 
ultimately be affected include the following:

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

    This table is not intended to be exhaustive, but rather is 
presented to provide a guide for readers regarding regulated entities 
likely to be affected by this action. Listed in the table are the types 
of entities that EPA is now aware could potentially be affected by this 
action. Other types of entities not listed in the table also could be 
affected. To determine whether your facility is affected by this 
action, you should examine carefully the definition of ``Great Lakes 
System'' in 40 CFR 132.2 and examine the preamble to 40 CFR part 132, 
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 section titled FOR FURTHER 
INFORMATION CONTACT.

I. Legal Authority

    This regulation is promulgated under the authority of sections 118, 
301, 303, 402, and 501 of the Clean Water Act (CWA).

II. Introduction

    Section 118(c)(2) of the CWA, as amended by the Great Lakes 
Critical Programs Act of 1990, required EPA to publish proposed and 
final water quality guidance on minimum water quality standards, 
antidegradation policies, and implementation procedures for the Great 
Lakes System. On March 23, 1995, EPA published a final rule entitled 
``Final Water Quality Guidance for the Great Lakes System'' (Guidance) 
in order to satisfy this

[[Page 67639]]

requirement. See 60 FR 15366. The 1995 Guidance included ambient water 
quality criteria for 29 pollutants, including BCCs, that reflect the 
maximum ambient concentrations of those pollutants that could be 
present in waters of the Great Lakes Basin without impairing aquatic 
life, wildlife, or human health. The 1995 Guidance also included 
implementation procedures that Great Lakes States and Tribes are to use 
to prepare total maximum daily load (TMDL) analyses and to develop 
water quality-based effluent limits (WQBELs) for facilities discharging 
these pollutants. See 40 CFR part 132.
    The Great Lakes States are the States of Illinois, Indiana, 
Michigan, Minnesota, Ohio, New York, Pennsylvania, and Wisconsin. The 
Great Lakes Tribes are those Tribes as defined in 40 CFR 132.2. Great 
Lakes Tribes consist of any Tribe within the Great Lakes Basin for 
which EPA has approved water quality standards under section 303 or 
that EPA has authorized to administer a National Pollutant Discharge 
Elimination System (NPDES) program under section 402 of the CWA.
    Among the implementation procedures in the 1995 Guidance was 
procedure 3.C in appendix F. Under this procedure, NPDES permits would 
have been prohibited from including mixing zones in the calculation of 
water quality-based effluent limits for new discharges of BCCs after 
March 23, 1997, or for existing discharges of BCCs after March 23, 
2007. EPA also codified exceptions for existing discharges to account 
for water conservation and technical and economic considerations.
    Great Lakes States and Tribes were required to adopt water quality 
standards, antidegradation policies, and implementation procedures 
consistent with the criteria methodologies, policies, and 
implementation procedures specified in the 1995 Guidance by March 23, 
1997, and to submit them to EPA for approval or disapproval. See 40 CFR 
132.5. In the event EPA disapproves all or part of a State's or Tribe's 
submission, EPA would publish a final rule identifying the provisions 
of part 132 that shall apply to discharges in that State or Tribal 
reservation. See 40 CFR 132.5(f)(2).
    The 1995 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, 115 
F.3d 979 (D.C. Cir. 1997)); however, the Court vacated the provisions 
of the Guidance that would have eliminated mixing zones for BCCs (115 
F.3d at 985). The Court held that EPA had ``failed to address whether 
the measure is cost-justified,'' and remanded the provision to EPA for 
an opportunity to address this issue (115 F.3d at 997). In response to 
the Court's remand, EPA re-examined the factual record, including its 
cost analyses, and published the Proposal to Amend the Final Water 
Quality Guidance for the Great Lakes System to Prohibit Mixing Zones 
for Bioaccumulative Chemicals of Concern in the Federal Register on 
October 4, 1999 (64 FR 53632). EPA received numerous comments, data, 
and information from commenters in response to the proposal.
    After reviewing and analyzing the information in the rulemaking 
record, including those comments, EPA has developed the Final Rule to 
Amend the Final Water Quality Guidance for the Great Lakes System to 
Prohibit Mixing Zones for Bioaccumulative Chemicals of Concern, to be 
codified in appendix F, procedure 3.C of 40 CFR part 132. This preamble 
describes the background and purpose of this final rule, briefly 
summarizes the rule's major provisions, and summarizes the major issues 
in the public comments received on the proposal and EPA's responses to 
them. A detailed discussion of EPA's analysis of comments and issues, 
as well as its reasons for issuing the final rule to prohibit mixing 
zones for BCCs in the Great Lakes Basin, are provided in additional 
technical and supporting documents, which are available in the docket 
for this rulemaking. Copies of the supporting documents also are 
available from EPA in electronic format (see section VIII of this 
preamble). For a detailed discussion of the rule's major provisions, 
please see the preamble to the proposed rule.

III. Summary of the Final Regulation

    Today, EPA is promulgating the final rule to amend 40 CFR part 132, 
appendix F, procedure 3, to reinstate the mixing zone provisions for 
BCCs. A mixing zone is the area beyond a point source outfall (e.g., a 
pipe) in which concentrations of a particular pollutant from a 
wastewater discharge mix with receiving waters. The water is allowed to 
exceed the water quality criterion for that pollutant within the mixing 
zone. Behind the theory of using mixing zones is the belief that by 
mixing with the receiving waters within the zone, the discharge will 
become sufficiently diluted to meet applicable water quality criteria 
beyond the borders of that zone.
    Today's rulemaking prohibits or, for existing discharges, phases 
out mixing zones for BCCs in the Great Lakes System subject to certain 
exceptions. This means that NPDES permit limitations for BCCs 
discharged to the Great Lakes System must be set no higher than water 
quality criteria. Under today's rule, the phase-out of mixing zones is 
to occur, in most cases, by November 15, 2010. EPA believes this is a 
reasonable time frame because five out of the eight Great Lakes States 
have similar State-adopted BCC mixing zone provisions and the remaining 
three States have been aware since 1997 of EPA's intention to reinstate 
this provision. See 63 FR 20107 (April 23, 1998). In addition, EPA has 
not chosen to reduce the phase-out period to less than 10 years (the 
time frame originally promulgated in the 1995 Guidance), to allow 
affected dischargers the same time (approximately 10 years) they would 
have had under the original BCC mixing zone provision.
    Under this amendment to Part 132, the mixing zone prohibition would 
be limited to BCCs--the pollutants of primary concern in the Great 
Lakes System. EPA's regulations applicable to the Great Lakes System 
define a BCC, in essence, as any chemical that (1) accumulates in 
aquatic organisms by a human health bioaccumulation factor (BAF) 
greater than 1000 (after considering various specified factors), and 
(2) has the potential upon entering surface waters to cause adverse 
effects, either by itself or in the form of its toxic transformation 
product, as a result of that accumulation. See 40 CFR 132.2. The table 
below lists the BCCs subject to today's rule.

               Bioaccumulative Chemicals of Concern (BCCs)
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Lindane...................................  Mirex
Hexachlorocyclohexane (BHC)...............  Hexachlorobenezene
alpha-Hexachlorocyclohexane...............  Chlordane
beta-Hexachlorocyclohexane................  DDD
delta-Hexachlorocyclohexane...............  DDT
Hexachlorobutadiene.......................  DDE
Photomirex................................  Octachlorostyrene
1,2,4,5-Tetrachlorobenzene................  PCBs
Toxaphene.................................  2,3,7,8-TCDD
Pentachlorobenzene........................  Mercury
1,2,3,4-Tetrachlorobenzene................  Dieldrin
------------------------------------------------------------------------

    There are two components of this rule. First, today's rule 
prohibits the establishment of mixing zones for new discharges of BCCs 
to the Great Lakes

[[Page 67640]]

System. This prohibition takes effect as soon as EPA has approved the 
State's or Tribe's submission with respect to this prohibition or 
publishes a notice identifying that prohibition as applying within the 
State's or Tribe's jurisdiction. The definition of ``new discharge'' 
can be found at procedure 3.C.2 of today's rule. All other discharges 
of BCCs are defined as existing discharges.
    Second, this regulation prohibits mixing zones for existing 
discharges of BCCs after November 15, 2010, subject to two exceptions: 
(1) promotion of water conservation; and (2) technical and economic 
considerations. EPA recognizes that, as a result of water conservation 
measures, concentrations of a BCC in an effluent may increase slightly, 
while the mass of the BCC being discharged does not. Therefore, the 
first exception would allow States and Tribes to grant mixing zones for 
any existing discharge of BCCs even after November 15, 2010 in cases in 
which it can be demonstrated that failure to grant a mixing zone would 
preclude water conservation measures that would lead to overall load 
reductions in BCCs, even though higher concentrations of BCCs may occur 
in the effluent. This mixing zone exception is virtually identical to 
the provision promulgated in 1995.
    Regarding the exception for technical and economic considerations, 
a State or Tribe could authorize a mixing zone for existing discharges 
of BCCs after November 15, 2010 if the State or Tribe determines that 
(a) the discharger complies with all applicable requirements of CWA 
sections 118, 301, 302, 303, 304, 306, 307, 401, and 402 (including 
existing NPDES water quality-based effluent limitations) for the BCC 
for which the mixing zone is requested, and (b) the discharger has 
reduced and will continue to reduce--to the maximum extent possible--
its discharge of the BCC for which the mixing zone is requested. This 
exception would not be available if cost-effective pollution prevention 
and/or other control and treatment strategies exist that make it 
technically feasible for the discharger to achieve the applicable water 
quality criteria at the point of discharge, and if the discharger, or 
affected community or communities, will not suffer unreasonable 
economic effects in implementing such strategies.
    EPA has modified the technical and economic feasibility provision 
from the 1995 Guidance to clarify the importance of implementing only 
those control strategies determined to be cost-effective. EPA expects 
that exceptions to the BCC mixing zone provision will be granted solely 
at the discretion of the State or Tribe on a case-by-case basis. See 
procedure 3.C.5 and 6 for more information on exceptions to the 
provisions contained herein. EPA received no comments concerning any 
aspects of either exception as proposed.
    To date, the States of Illinois, Indiana, Minnesota, Michigan, and 
Wisconsin have adopted and submitted to EPA requirements to eliminate 
or, for existing discharges, to phase out mixing zones for BCCs. If 
these requirements are retained by the five States, and if EPA 
determines that they are as protective as today's final rule, EPA will 
approve those submissions under the procedures set forth in 40 CFR 
132.5(f). Any Great Lakes State or Tribe that has not adopted BCC 
mixing zone provisions as protective as those in today's rule (e.g., 
New York, Ohio, Pennsylvania) will need to adopt such provisions and 
submit them to EPA for approval or disapproval pursuant to 40 CFR 132.5 
by May 13, 2002, see 40 CFR 132.5(a) and (c) (as amended by today's 
rule.). If a Great Lakes State or Tribe fails to submit such 
provisions, or if EPA disapproves the submission, EPA, after giving the 
State or Tribe an opportunity to make necessary changes, will publish a 
final rule no later than November 13, 2002 identifying the provisions 
of today's rule that shall apply to discharges within that State's or 
Tribe's jurisdiction. See 40 CFR 132.5(c), (d) and (f).

IV. Comments on the Proposed Regulation

    EPA solicited comments on the intended amendment in the ``Proposal 
to Amend the Final Water Quality Guidance for the Great Lakes System to 
Prohibit Mixing Zones for Bioaccumulative Chemicals of Concern,'' which 
was published in the Federal Register on October 4, 1999 (64 FR 53632). 
The following sections summarize comments received and EPA's responses.

A. Support for the Regulation

    Some commenters on the proposal of this rule support the 
elimination of mixing zones for BCCs in the Great Lakes System. The 
majority of these comments address issues such as (1) the consistency 
between the final rule, the goals of the CWA, and the goals of the 
Great Lakes Water Quality Agreement (GLWQA), (2) the inappropriateness 
of mixing zones for BCCs due to BCCs' persistence in the environment, 
and (3) the adverse health effects BCCs impose on fish and other 
aquatic organisms, wildlife, and humans. Commenters also urged EPA to 
extend the proposed rule so that it encompasses other national waters, 
to apply the prohibition to chemicals other than BCCs, and to include 
chemicals with BAFs lower than the current 1000 cutoff that was 
established in the 1995 Guidance. These issues and requests are 
discussed throughout the remainder of this section.
    Phasing out existing mixing zones for BCCs and prohibiting new 
mixing zones for BCCs will ensure that the 1995 Guidance achieves the 
goals of the CWA and the objectives of the GLWQA, which is an 
international agreement between the United States and Canada to restore 
and maintain the environmental integrity of the Great Lakes ecosystem. 
Several commenters pointed out that today's rule is an important and 
necessary step toward achieving the GLWQA's goals to virtually 
eliminate persistent and bioaccumulative toxics (Article II.a) and to 
reduce mixing zones to the maximum extent possible (Article IV.f). EPA 
acknowledges the consistency between today's rulemaking and the 
objectives of the GLWQA and is promulgating this amendment in an effort 
to conform to goals that work toward mending and upholding the 
integrity of the Great Lakes System.
    As part of this effort, EPA has judged that mixing zones for BCCs 
(even of the limited size already authorized by 40 CFR part 132 under 
certain conditions) for existing discharges should be prohibited to the 
greatest extent technically and economically possible. A large number 
of scientists, policy makers, and other stakeholders in the Great Lakes 
and Canada agree on the need to virtually eliminate BCCs from the Great 
Lakes Basin and to reduce the size of BCC mixing zones to the maximum 
extent possible. This is because BCCs, due to their persistent and 
bioaccumulative nature, are incompatible with mixing zones. By 
definition, BCCs are chemicals that do not degrade over time. These 
chemicals accumulate in organisms living in the water and become more 
concentrated as they move up the food chain--from biota to fish and 
wildlife to humans. Because the effects of these chemicals are not 
mitigated by dilution, using a mixing zone to ``dilute'' BCC discharges 
is not appropriate. Commenters pointed out that dilution and dispersion 
are inadequate substitutes for removing and treating the BCCs before 
they are discharged to the Great Lakes' waters. EPA agrees with these 
commenters because it is the mass of BCCs that poses a problem, not 
just the concentration. Because dioxins, mercury, polychlorinated 
biphenyls (PCBs) and other BCCs degrade over long periods of time or do 
not degrade at all, their

[[Page 67641]]

buildup in pockets of sediments creates ``hot spots'' in the 
environment in which bioaccumulation of toxics in fish and other 
aquatic organisms can occur at levels that significantly exceed safe 
levels for consumption by wildlife and humans. The 1995 Guidance 
required a minimum 10:1 dilution ratio for lake discharges and 25 
percent of the critical stream flow for tributary discharges in 
calculating mixing zones for all pollutants, including BCCs. See 40 CFR 
part 132, appendix F, procedure 3.D and 3.E. Larger mixing zones also 
are allowed if a particular demonstration is performed. See 40 CFR part 
132, appendix F, procedure 3.F. Thus, with the currently allowable 
dilution, the mass of BCCs discharged from point sources to the Great 
Lakes System could be reduced significantly--by a factor of 10 to 100 
in certain circumstances--when mixing zones for BCCs are prohibited.
    Commenters on EPA's proposal support today's rule because of its 
ability to help decrease the amount of BCCs to which fish, wildlife, 
and humans are exposed. The commenters recognize the adverse effects 
BCCs have on human health and wildlife and that even small 
concentrations can increase the risks of cancer, organ failure, and a 
host of other maladies. One commenter noted that contaminating any 
waterbody with persistent toxic substances that accumulate in the food 
chain is never rational. Furthermore, it should not be justifiable 
public policy.
    Because the food web that accumulates BCCs can be concentrated in 
tributaries, bays, and other areas where natural sinks exist--and where 
fish species are more diverse and productive--the elimination of mixing 
zones will reduce the probability of adverse effects on these organisms 
and those that consume them. Fewer pollutants entering the waters will 
reduce the detrimental effects already discovered in various fish 
species and wildlife.
    In aquatic organisms, effects of BCCs range from death to 
impairment of reproduction, development, and growth (Sweeney et al., 
1993). In wildlife, birds exposed to BCCs have exhibited biochemical 
dysfunction and metabolic effects, behavioral/neurological disorders, 
and reproductive impairment (Elliott et al., 1996).
    For humans, as is true for wildlife, the main route of exposure to 
BCCs is through the consumption of Great Lakes fish, which have 
``uptaken'' and retained the pollutants from their surrounding 
environment and food. Potential adverse human health effects resulting 
from the consumption of contaminated fish include both the increased 
risk of cancer and the potential for systemic or noncancer risks such 
as kidney damage (U.S. EPA, 1997). As affirmed by commenters who 
support today's rule, women who are pregnant and children, in 
particular, are at risk for being adversely affected by BCCs (U.S. EPA, 
1997). BCCs can induce inheritable chromosomal changes in women that 
could result in birth defects in their infants, cross the human 
placenta contributing to exposure of the fetus through placental 
transfer, and accumulate in body tissues. Exposure to BCCs can result 
in decreased fertility, premature labor, spontaneous abortion, 
reproductive hormone disorders, increased stillbirths, lack of mammary 
function, reduced libido, and delayed estrus.
    Children may be at greater risk than adults. Because BCCs can 
accumulate in human milk, women exposed to the pollutants who 
breastfeed could potentially pass the chemicals on to their infants. 
Risks to infants and children include central nervous system effects, 
mortality, low IQ scores, cataracts, congestive heart failure, skin 
disorders, cancers, immune system dysfunction and immunosuppression, 
skeletal disorders, neurological/behavioral effects, and 
endocrinological disorders.
    In addition to supporting EPA in its rationale behind the rule, as 
summarized in the above paragraphs, many commenters strongly advised 
EPA to expand the proposed rule so that the regulations apply 
nationwide, not just for the Great Lakes System, and that the BCC 
mixing zone phase-out should cover chemicals other than BCCs. One 
commenter noted that, although lakes lend themselves to the most easily 
quantifiable demonstration of risk to a particular subpopulation, the 
discharge of BCCs into moving waterbodies is no less problematic. EPA, 
under a separate undertaking, is evaluating whether mixing zones for 
BCCs should be prohibited in other national waters and for chemicals 
other than BCCs.
    Commenters also urged EPA to propose an amendment that would 
address chemicals with a BAF that falls short of the cutoff established 
by the Guidance. These commenters claimed that the risks to wildlife 
and humans from chemicals with lower BAFs might be just as severe as 
those chemicals with BAFs of greater than 1000, particularly when 
wildlife and humans are exposed to a mix of chemicals found within 
fish. In response, EPA believes that the current BAFs are sufficient to 
protect water quality and human health. The Agency wishes to point out, 
however, that 40 CFR 132.1(d) provides that the methodologies for 
establishing BAFs and criteria for pollutants, including BCCs, will be 
evaluated and revised, as appropriate, every three years.
    In summary, these commenters stated their support for today's rule. 
Although some hope to see an extension of the mixing zone prohibition, 
many were satisfied with the step forward that this rule is making in 
helping to meet the objectives of the CWA.

B. Benefits Associated With Phase-out and Elimination of Mixing Zones 
for BCCs

    A few commenters asserted that the proposed rule contained no 
evidence or documentation that restrictions on NPDES dischargers would 
produce any measurable change in the levels of BCCs in water, sediment, 
or fish tissue. Others claimed that the proposal would yield no 
benefits because five of the Great Lakes States have already adopted a 
similar prohibition on BCC mixing zones and, to date, no mixing zone 
credit exists for cases in which water quality exceeds applicable water 
quality standards. One commenter estimated that annual benefits of the 
proposal would amount to no more than $1.3 to $4.1 million.
    EPA disagrees with these claims. EPA believes that the mixing zone 
prohibition is necessary to protect the integrity of the Great Lakes 
and that its benefits derive from the minimization or avoidance of the 
adverse effects summarized in the preceding section. The Court that 
struck down an earlier version of this regulation noted that EPA had 
adequately explained the environmental importance of eliminating mixing 
zones for BCCs. In addition, numerous scientists, policy makers, and 
other stakeholders in the United States and Canada are urging EPA to 
reduce the size of BCC mixing zones to the maximum extent possible, 
which would be a step forward in trying to virtually eliminate BCCs 
from the Great Lakes Basin as called for by the GLWQA.
    Because BCCs are harmful to the environment, any discharge of 
BCCs--even those discharges that are equivalent to the applicable water 
quality criteria-have the potential to impair the integrity of the 
receiving waterbody. Using mixing zones to increase the amount of 
allowable discharge exacerbates this situation because the effects of 
BCCs are not limited to the short term, or localized zone of initial 
dilution, meaning that adverse effects could occur far outside the 
mixing zone and long after the BCC discharge occurred.

[[Page 67642]]

    Since point sources affect waterbodies and, hence, fish tissue on a 
site-specific basis, removing fish advisories and restoring waters 
requires a reduction in the mass of BCCs that accumulate in 
depositional areas of the Great Lakes. The bottom levels of the food 
web biomagnify BCCs that concentrate in these sinks, affecting the 
higher levels of species that tend to be more productive in these 
areas. Prohibiting mixing zones for BCCs in the Great Lakes System can 
reduce the natural sink masses below point source discharges by a 
factor of 10 to 100 in some circumstances.
    EPA reiterates that one of the primary purposes of the 1995 
Guidance and, by extension, today's rule is to promote pollution 
prevention. Approximately one-third of the more than 360 hazardous 
pollutants in the Great Lakes System could have acute or chronic toxic 
effects on aquatic life, wildlife, and human health. Had the Guidance's 
framework been in place 30 years ago when the effects of PCBs from 
point source discharges began to emerge, States could have moved 
quickly to control these pollutants, avoiding millions of dollars in 
cleanup costs, human health impacts, and other environmental damage. 
Prompted by today's rule, dischargers can use pollutant minimization to 
control pollutants before new water quality problems arise. With low 
concentrations of new chemicals being introduced into the environment 
every year, it would be prudent to try to avoid future cleanup costs 
now.
    Although EPA was not able to quantify all of these benefits in its 
analysis of the final Guidance as promulgated in March 1995, the Agency 
believes today's rule is an integral part of the framework created by 
the Guidance for the type of preventative measures mentioned above. EPA 
believes that these and other benefits derived from the Guidance and 
today's rule are indeed significant and, further, draws attention to 
the potential high costs of future cleanup that, without the help of 
the BCC mixing zone prohibition, may someday need to be addressed.
    Some commenters asserted that the proposed rule would yield no 
benefits because some Great Lakes States have already adopted a similar 
prohibition on BCC mixing zones (e.g., Indiana). EPA observes that 
these commenters do not make the corresponding argument that the rule 
has no costs in those States. As noted above, the benefits and costs of 
the rule are directly linked to reducing the mass loading of BCCs to 
the waterbody. EPA has chosen to assess costs and benefits in these 
States because EPA would be required to impose these measures through a 
Federal promulgation if those Great Lakes States withdraw or fail to 
submit such voluntarily adopted measures.
    As for the claim that the annual benefits of the prohibition will 
be between $1.3 million and $4.1 million, EPA believes that this is an 
understatement and was made based on a misconception of the methodology 
EPA used in the Guidance. When EPA developed the 1995 Guidance, EPA did 
not estimate benefits for the entire Great Lakes Basin; rather, EPA 
estimated values for three case-study areas only. An extrapolation to 
the whole Great Lakes Basin from this small number of case studies, as 
the commenter has done, is inappropriate because EPA was able to 
estimate basinwide benefits for one benefit category only, and was not 
able to quantify all categories of benefits even for the three case-
study areas (for example, there is no methodology for monetizing 
noncancer health effects from pollutants like mercury). Nor was EPA 
able to account for avoided future contamination and cleanup in its 
analysis of benefits. EPA believes that any disparity between the 
environmental justification for today's rule (which the Court found to 
be adequately explained) and estimates of monetary benefits is the 
result of not being able to account for all potential benefits in 
dollar values.

C. Source Controls, Pollution Prevention, and Waste Minimization

    A number of commenters expressed the opinion that EPA, in its 
proposal, failed to support its statement that dischargers can comply 
with the prohibition through product substitution, cleaner 
technologies, and source controls. These commenters believe that it is 
unlikely that many publicly-owned treatment works (POTWs) would be able 
to achieve additional pollutant reductions through source controls 
alone, particularly for mercury. Some commenters also asserted that EPA 
did not evaluate the cost impacts on indirect dischargers.
    EPA disagrees with these comments. The record shows that it will be 
technically and economically feasible for many dischargers, including 
POTWs, to phase out mixing zones for BCCs during the 10-year phase out 
period. Although EPA acknowledges that at present it may be difficult 
to identify potential sources of pollutants within POTW service areas, 
as analytical methods continue to improve, so should the POTWs' 
abilities to identify and control sources of BCCs and to educate the 
public on how to prevent pollution by avoiding household products that 
contain high levels of BCCs or substituting for those products ones 
that are BCC-free or more environmentally friendly. As discussed below, 
EPA also considered the cost impact on indirect dischargers.
    Even though many facilities may face challenges in achieving 
effluent limitations derived from Great Lakes standards for mercury, 
EPA's record shows that when facilities try to control mercury they 
have been able to achieve significant reductions in their discharge 
levels. As described in more detail below, in many cases these 
reductions have been attained by source control, not end-of-pipe 
treatment. These approaches succeed for other BCCs as well. Less costly 
than end-of-pipe treatment, source controls have included efforts to 
control more diffuse sources of BCCs, such as households using lindane-
containing products and have resulted in substantial increases in the 
percentages of BCC removals (U.S. EPA, 1999).
    One commenter argued that all POTWs will have a hard time meeting 
effluent limits for mercury unless a mixing zone is allowed. The two 
primary reasons for this belief are (1) that POTWs currently have high 
concentrations of mercury in influents from domestic sources alone 
(according to the commenter an approximate median of 110 ppt), and (2) 
that pollution prevention is cost-effective for industrial users only. 
The conclusion reached by this commenter, then, is that end-of-pipe 
treatment would need to be added if stringent limitations based on 
mercury water quality criteria (1.3 ng/L) are to be met. EPA believes 
that both of the reasons given overstate the issue and that the 
conclusion is based on an incorrect premise. EPA acknowledges that many 
POTWs have high concentrations of mercury in their influent and agrees 
that these high levels need to be significantly reduced if POTWs are to 
meet the stringent effluent limits contemplated by today's rule. The 
mere fact that high mercury concentrations exist, however, does not 
mean that they cannot be controlled at the source, prior to the time 
they arrive at the POTW. Indeed, EPA's record shows that source 
controls, pollution prevention, and waste minimization often are far 
more efficient and cost effective than end-of-pipe treatment for 
mercury. EPA does not agree that cost-effective opportunities typically 
occur for POTWs only when there are industrial sources with high 
loading rates. EPA acknowledges that if the great majority of mercury 
in a POTW's influent is derived from one or two

[[Page 67643]]

sources, obviously it would be easier and more cost-effective to 
control those sources than it would be to control other, more diverse 
sources. Nonindustrial sources, however, such as dental and medical 
facilities, often discharge high concentrations of mercury. These 
sources are usually classified as ``domestic'' rather than 
``industrial'' discharges. In those few cases in which POTWs have 
seriously attempted to reduce mercury from domestic sources, 
significant measures of success from control of commercial facilities 
in ``domestic'' wastewater have been achieved. While dental and medical 
facilities tend to be more widely distributed than ``industrial'' 
facilities, reductions in discharges can be organized through a variety 
of programs that include campaigns directed toward dental and medical 
practices and public education. In some cases, dental and medical 
offices are required to remove mercury prior to discharging to sewers. 
The bottom line is that the treatment of more concentrated wastestreams 
at the source or pollution prevention at the source is more likely to 
be cost-effective than treating diluted wastestreams at the POTW.
    EPA understands that the control of mercury from ``domestic'' 
sources would entail costs on the part of the POTW, but such costs are 
likely to be considerably smaller than those required for end-of-pipe 
treatment. In sum, the most cost-effective way in which POTWs can 
substantially reduce mercury discharges thus appears to be pollution 
prevention and waste minimization. These programs can focus on high 
concentration high volume industrial discharges to the collection 
system as well as high concentration low volume discharges, such as 
those coming from medical and dental facilities. As evidence, EPA 
provides the example of the Western Lake Superior Sanitary District 
(WLSSD), which, after evaluating the costs involved in meeting more 
stringent water quality-based effluent limits for mercury with end-of-
pipe treatment, concluded that pollution prevention techniques were the 
preferable control strategy. As of 1996, WLSSD had successfully reduced 
mercury concentrations at the wastewater treatment plant by more than 
74% from 1990 dry sludge levels (from 4.50 ppm to 1.15 ppm) and by more 
than 97% from 1990 effluent levels (from 0.58 ppb to 0.015 ppb), which 
brought WLSSD well into compliance with its existing WQBEL. Additional 
examples of source control programs can be found in Overview of P2 
Approaches at POTWs, Draft, Office of Science and Technology, March 
(U.S. EPA, 1999). EPA believes that facilities like WLSSD, with the use 
of super clean analytical methods to better identify and characterize 
sources of mercury, will be able to advance their pollution prevention 
efforts to further reduce the levels of mercury in their sludge and 
effluent as mixing zones are phased out over the next 10 years.
    Further, EPA believes that recent data submitted by the Association 
of Metropolitan Sewerage Agencies (AMSA) support EPA's position that 
product substitution, cleaner technologies, and source controls are the 
most efficient and cost-effective means of reducing BCCs. These data 
indicate that POTWs are achieving, on average, about 97 percent removal 
of mercury from their influent with an average effluent discharge 
concentration of about 9 parts per trillion (ppt or ng/L). Wastewater 
from industrial and commercial establishments, however, such as 
hospitals, medical waste incinerators, industrial laundries, medical/
dental/clinical laboratories, dental offices, and others, can be 
discharged directly to the POTW's wastewater collection system 
virtually unregulated at concentrations that exceed 1 million ppt. 
Indeed, AMSA's data indicate that influent mercury concentrations at 
the headworks of POTWs range from 50 ppt to 1300 ppt.
    What this means is that POTWs are channeling a significant amount 
of mercury into their sludge (approximately 30 to 40 tons nationally), 
which results in a release of chemicals into the environment when the 
sludge is disposed of through incineration or land-application 
practices. EPA estimates that between 0.6 and 1.9 tons of mercury are 
emitted each year from sewage sludge incinerators in the vicinity of 
the Great Lakes Basin. In essence, pollutants are merely being 
transferred from one medium to another. Therefore, EPA believes that 
the solution to controlling mercury releases to the environment is not 
to change the medium from the POTW's influent to its sludge and 
effluent, but to either prevent mercury from entering the wastewater 
collection system at the source through product substitution, waste 
minimization, or process modification, or by removing and recycling 
mercury at the source (i.e., employing source controls) using state-of-
the-art technology. Such cost-effective source controls, which will 
prevent additional environmental releases, provide an auxiliary 
environmental benefit to today's rulemaking.
    In conclusion, pollution prevention (including product substitution 
by households), waste minimization, and source controls for high 
concentration low volume industrial and commercial discharges (as well 
as high concentration high volume discharges) to the POTW's collection 
system, are the most cost-effective approaches to reducing overall 
environmental releases to water, as well as to air and land. At 
facilities in which these approaches have been implemented, substantial 
reductions in BCC concentrations, including mercury concentrations in 
POTW influents, sludges, and effluents, have been achieved. Where these 
reductions are insufficient to meet WQBELs, POTWs can seek an exception 
to the mixing zone prohibition. A condition for eligibility is that the 
facility has and will continue to implement controls or pollution 
prevention measures to reduce or ultimately eliminate the BCC. Thus, 
aggressive pollution prevention efforts may well achieve the necessary 
reductions to meet a WQBEL with no mixing zone, but if not, will help 
the facility to qualify for an exception.
    With respect to costs, in 1995, EPA estimated potential costs to 
indirect dischargers of implementing the Guidance with the mixing zone 
provision to be between $6.6 million and $19.9 million per year (in 
1994 dollars). In addition, EPA's estimate of total costs to direct and 
indirect dischargers to implement the Guidance in 1995 (including the 
mixing zone provision) of $60 million to $380 million per year included 
source control costs for POTWs (i.e., costs to control indirect 
discharges). EPA's analysis of today's rule provides an estimate of the 
portion of the $60 million to $380 million cost range that is 
attributable to just the phase out and elimination of mixing zones. By 
including costs for source controls at POTWs, EPA's cost estimates 
reflect costs that could be passed on to dischargers to POTWs. EPA also 
conducted an analysis of potential impacts on small entities. Although 
this analysis looks at small dischargers that are direct dischargers 
(the Guidance only regulates direct dischargers), EPA did not find a 
significant impact on small entities. In addition, an independent 
economic analysis of the Guidance (including the BCC mixing zone 
prohibition) concluded that it would have an imperceptible impact on 
the region's economy (DRI/McGraw-Hill, 1993). Thus, EPA can only 
conclude that the impacts on many industries discharging to POTWs will 
not be significant.

[[Page 67644]]

D. Other Cost Issues Related to Rulemaking Implementation

    A commenter from California expressed concern that end-of-pipe 
treatment would be necessary to meet water quality-based effluent 
limitations based on water quality criteria for BCCs in the Great Lakes 
and that such treatment would cost $2.45 billion to implement in 
California alone. Additional commenters cited an Ohio study that 
reported that EPA's cost estimates were too low and that the 
elimination of mixing zones for BCCs in the Great Lakes will result in 
significant costs for dischargers.
    EPA disagrees with the claim that today's rule would force the 
construction and operation of extraordinary treatment. As discussed 
earlier EPA believes that an aggressive pollutant minimization program 
consisting of source controls, pollution prevention (e.g., product 
substitution or process modification), and public education, can attain 
effluent limits based on achieving criteria end-of-pipe. While there 
are new data showing that mercury comes from a variety of sources and 
products (e.g., industrial, commercial, household), no one to date has 
demonstrated that an aggressive long-term pollutant minimization 
program containing these features has failed in this regard, or that, 
as a result, the State or community had to force the construction of 
extraordinary end-of-pipe treatment that was later determined to be 
cost ``ineffective'' with no environmental benefit. In addition, the 
sampling results presented by AMSA for mercury at POTWs in and out of 
the Great Lakes Basin do not provide evidence that Great Lakes 
standards for BCCs cannot be met without end-of-pipe treatment. EPA 
recognizes that discharges from some facilities exceed the mercury 
criterion, but, based on results from facilities that have tried to 
control mercury, significant reductions in discharge levels have been 
achieved. In many cases, these reductions have been attained by source 
control, not end-of-pipe treatment, demonstrating the feasibility of 
this approach. (Refer to section IV.C for more discussion on the 
benefits of source controls). EPA also notes that if, after ten years, 
it appears that a pollution minimization program at a facility will not 
achieve the necessary BCC reductions, today's rule affords States and 
Tribes the flexibility to authorize BCC mixing zones when additional 
controls are not technically feasible or cost-effective.
    Even though the rule is only applicable to the Great Lakes Basin, 
EPA disagrees with the claim that implementing the rule in California 
would cost $2.45 billion. The cost tables offered by the commenter to 
support this estimate do not provide information on the current levels 
of mercury or other BCC concentrations in California POTWs, the 
estimated reductions needed to achieve revised standards for BCCs, or 
the treatment already in place at these facilities. Instead, the cost 
tables provide only calculations of a worst-case estimate assuming all 
California POTWs would need to implement lime precipitation, carbon 
adsorption, and reverse osmosis. A thorough facility-level analysis, 
which was not furnished by the commenter, is essential if the commenter 
wishes to provide meaningful cost estimates. Further, EPA has not seen 
impacts of the magnitude indicated by the commenter in other regions of 
the country that have aggressive water quality standards programs. 
Moreover, data for California POTWs evaluated by EPA as part of 
analysis of the California Toxics Rule do not support the claim that 
all POTWs would need end-of-pipe treatment to meet criteria end-of-pipe 
for mercury and other BCCs in California.
    With respect to comments regarding the Ohio mercury study, EPA 
believes that Ohio's alternative cost analysis for mercury is not 
compelling here because it assumes that end-of-pipe treatment is 
necessary in cases when EPA would conclude otherwise. EPA believes that 
this is an artificial analysis of the options required of dischargers. 
EPA's own estimates instead assume a combination of end-of-pipe 
treatment and lower cost alternatives such as process modification, 
waste minimization, pollution prevention, source controls, and public 
education. In addition, Ohio's estimates are also not comparable to 
EPA's because they reflect not only the costs of today's mixing zone 
rule but also costs associated with the Guidance promulgated in 1995. 
EPA's estimates for today's rule reflect only the impact of the BCC 
mixing zone provision, not the impact of the entire 1995 Guidance. 
Using this estimate, as well as information on the contribution of air 
sources to mercury water concentrations in Ohio, Ohio adopted a 
variance provision for mercury for point source dischargers that 
requires dischargers, in order to obtain the variance, to implement a 
plan of study and pollutant minimization plan for identifying and 
reducing loadings of mercury. Thus, Ohio variance provision employs 
much the same control strategies contemplated by EPA.

E. Point Source Loadings

    Some commenters on EPA's proposed rule argued that point sources 
contribute a relatively insignificant amount of BCCs (mercury, in 
particular) when compared to the total accumulation of BCCs in the 
Great Lakes caused by other sources, such as atmospheric deposition.
    EPA disagrees with the assertion that point source loadings are 
insignificant and believes that comparing the total contribution of 
BCCs from point sources and atmospheric sources to the entire Great 
Lakes System often ignores the nature of point source discharges and 
their spatial impact on the environment. Macro-scale analyses of the 
atmospheric contribution of BCCs to the Great Lakes System is not 
comparable with localized point source studies because those analyses 
assume that atmospheric deposition is constant and uniform over a 
significantly larger geographical area like the Great Lakes Basin. The 
water column concentrations from air deposition derived from such 
assumptions simply assume that the Great Lakes Basin is one unique, 
enormous, completely mixed system. These assumptions are used by 
researchers who study the fate and transport of pollutants on a large-
scale system, not by researchers who address localized impacts on a 
much smaller scale, such as the ones created by point source 
dischargers.
    By their very nature, point source discharges create ``hot spots'' 
within the Great Lakes System where elevated concentrations of BCCs 
have a potential adverse impact on aquatic life, wildlife, and human 
health. In other words, a point source discharge does not disperse and 
mix completely throughout the entire Great Lakes System, as is assumed 
for BCCs from atmospheric deposition. Therefore, comparing 
contributions from the two sources on such a large scale conceals the 
real impact of BCCs from point source discharges. In fact, when 
assessing the impact of a point source discharge, water quality 
analysts do not perform a mass balance on the entire lake system, but 
rather on the specific zone of influence of the point source discharge 
where atmospheric deposition may be insignificant and generally not 
taken into account.

F. TMDLs and Other CWA Issues

    Some commenters asserted that a BCC mixing zone prohibition is 
inconsistent with the Clean Water Act and implementing regulations and 
they argue that EPA erroneously concluded that mixing zones are never 
permissible

[[Page 67645]]

in impaired waters. Others assert that today's rule would interfere 
with States' abilities to control discharges through a TMDL process. 
Other commenters simply assert that BCC mixing zones should be 
available wherever the area of impact from the discharge is not 
biologically significant.
    With respect to the first assertion, the question of when and 
whether mixing zones (for any pollutant) are permissible in impaired 
waters is outside the scope of today's rule. Today's rule applies only 
after the permitting authority has determined that a mixing zone for 
BCCs might otherwise be available in the Great Lakes System under the 
Clean Water Act and State and federal implementing regulations and 
standards. Today's rule establishes restrictions on the availability of 
such mixing zones. In addition, the general availability of mixing 
zones in impaired waters was not relevant to EPA's cost estimates for 
today's rule. Rather, EPA estimated its costs for this rule based on 
the perhaps over-broad assumption that mixing zones for BCCs would be 
available throughout the Great Lakes for each discharger with known or 
suspected BCC discharges.
    EPA's discussion in the preamble to the proposed rule about the 
availability of mixing zones in impaired waters generated considerable 
concern that EPA was announcing a new policy banning mixing zones in 
impaired waters. EPA does not have a general policy on the availability 
of mixing zones in impaired waters at this time and generally defers to 
States on this issue. What the preamble discussion reflected was the 
application of provisions in procedure 3 governing the calculation of 
wasteload allocations in various situations. Under procedure 3.B.c.3, 
background levels of the pollutant must be accounted for in determining 
wasteload allocations (WLAs). When background levels of the pollutant 
for which a mixing zone is sought already exceed the applicable 
criterion in the receiving water, there may be no available dilution, 
despite the availability of a mixing zone. (Exceptions might be where 
there are no currently available data for calculating background values 
as provided in 3.B.9 or where anticipated loading reductions would 
lower background levels (see 3.C.3.b.iii) and ``free up'' assimilative 
capacity for use in calculating WLAs.) Thus, the preamble discussion in 
the proposal used the absence of a mixing zone as a simplified way of 
discussing other procedures that might have the same effect when 
calculating WLAs for discharges to impaired waters.
    With respect to the second assertion, EPA agrees that today's rule 
limits the discretion of Great Lakes States to use a TMDL as a vehicle 
for establishing mixing zones for BCCs in the Great Lakes System. EPA 
believes that this restriction is reasonable because of the documented 
environmental and health effects caused by BCCs in the Great Lakes 
System. EPA notes, however, that Great Lakes States are not absolutely 
foreclosed from authorizing a mixing zone for BCCs in the context of a 
TMDL. For existing dischargers, today's rule provides for a 10-year 
phase-out period that allows dischargers sufficient time to develop and 
implement control strategies to achieve WQBELs based on meeting water 
quality criteria end-of-pipe. The rule also provides for exceptions to 
the mixing zone prohibition for existing discharges of BCCs. In 
addition to the water conservation exception, the rule authorizes an 
exception to account for technical and economic circumstances. This 
exception could be employed, at the discretion of the State, beyond the 
10-year period (perhaps implemented through a TMDL) if the State 
determines that more aggressive controls aimed at achieving criteria at 
the end of the pipe would not be cost-effective or economically or 
technically feasible for the existing BCC discharge in question.
    Finally, in response to the third assertion, regarding the 
availability of mixing zones when the impact is not biologically 
significant, EPA is particularly concerned with how commenters are 
defining ``not biologically significant.'' EPA does not consider mixing 
zones an entitlement and does not agree that it is reasonable to not 
seek reduction of mass loadings of BCCs to areas of the Great Lakes 
System that no longer are considered ``biologically significant.'' In 
many cases, these areas have been biologically impacted because of the 
discharge of these pollutants. That is no reason that they should 
remain aquatic waste dumps especially when improved water quality is 
feasible. Further, one of the basic tenets underlying the mixing zone 
prohibition is that the adverse impacts of BCC discharges can almost 
never be limited to areas that are determined to be biologically or 
otherwise insignificant. If the receiving water is connected to another 
waterbody, that other waterbody would almost certainly be affected 
adversely by BCC discharges. States, nevertheless, have the flexibility 
to allow a mixing zone under certain exceptions, as noted above.

G. EPA's Fulfillment of the Court Remand

    In 1997, the U.S. Court of Appeals for the District of Columbia 
Circuit remanded the provisions of the Guidance to phase out and 
eliminate mixing zones for BCCs. The Court found that ``[a]lthough the 
EPA appears to have shown that eliminating mixing zones is not without 
some environmental benefit, the agency simply failed to address whether 
the measure is cost-justified. We remand the matter in order to afford 
the EPA an opportunity to do just that,'' American Iron & Steel 
Institute (AISI) v. EPA, 115 F.3d 979 (D.C. Cir. 1997). This finding 
resulted because the Agency had estimated the total cost of eliminating 
BCC mixing zones at $200,000 yet did not explain a comment estimating 
at approximately $300,000 the cost to one town of removing the BCC 
mercury from its sewage discharge. Commenters on the proposal for this 
rulemaking asserted that EPA's revised cost estimates had been 
underestimated and that EPA had not yet satisfied this order.
    EPA's 1995 sensitivity analysis on the BCC mixing zone provisions 
of the Guidance produced the $200,000 estimate because State derived 
permit limits (based on State water quality standards and mixing zone 
requirements) and Guidance-based permit limits (derived without a 
mixing zone) were both below analytical method detection levels. This 
provided EPA with little information concerning the effectiveness of 
possible pollution control strategies that the Guidance might impose 
over those that would be required to achieve current State (i.e., pre-
Guidance) permit limits. EPA recognized at the time that its mixing 
zone sensitivity analysis did not produce a justifiable cost estimate 
and supplemented it with a second analysis that evaluated the possible 
cost impacts of reducing potential hidden loadings of BCCs as future 
analytical detection methods improve. This analysis showed that if 
hidden loadings exist and analytical method detection levels improve, 
significant costs impacts from reducing BCCs could occur. However, this 
analysis did not evaluate the impact of the BCC mixing zone prohibition 
alone.
    As such, EPA has reevaluted the comment from the City of Owosso on 
the proposed Guidance in which they asserted that it would cost 
$300,000 to remove mercury from their sewage discharge. EPA notes that 
the $300,000 estimate presented by the City of Owosso is not comparable 
to the cost that was estimated in 1995 for the

[[Page 67646]]

elimination of mixing zones for BCCs ($200,000) nor is it comparable to 
the costs estimated for today's rule. This is because the City's cost 
is the total cost estimated to be necessary to comply with all of the 
requirements contained in the 1995 Guidance (as proposed). That is, the 
City did not distinguish between the original BCC mixing zone provision 
and the rest of the Guidance. The $300,000 estimate does not represent 
the incremental cost of eliminating mixing zones for BCCs. Nor did the 
City provide in its comment any information regarding the State's 
mercury water quality standard for the receiving water (Michigan's 
mercury standard that it has been using for over 15 years to protect 
human health and wildlife is as stringent as the mercury criteria 
promulgated in the 1995 Guidance, but less stringent than the criteria 
in the proposed Guidance), or the dilution and ambient background data 
that is used by the State permitting authority to evaluate reasonable 
potential and calculate permit limits for this facility when mixing 
zones are allowed. Nonetheless, the City's cost estimate of $300,000 is 
within the average cost range per municipal facility that EPA 
calculated for its economic analysis of the entire 1995 Guidance (from 
$75,185 to $822,251 under the low and high scenarios, respectively).
    In addition, the City did not indicate in its comment if it had 
previously conducted any pollution prevention or minimization efforts 
among its users. Although the commenter describes the industrial 
contribution to its headworks as ``light,'' this is not a sufficient 
argument to disregard, without further assessment, the true impact of 
the existing industrial discharges and the applicability of pollution 
prevention to control them. Most importantly, the City did not indicate 
whether or not it had conducted pollution prevention assessments at any 
medical and dental offices that it serves. Medical and dental offices 
have been found, in many cases, to significantly contribute to the 
mercury levels in the influents to POTWs but have controllable sources 
of mercury that are readily amenable to cost-effective pollution 
prevention techniques.
    Nonetheless, as discussed above, EPA has revised its economic 
sensitivity analysis of today's BCC mixing zone provision in response 
to the Court remand. EPA's estimated cost range for the 1995 Guidance, 
which included the 1995 provision to prohibit mixing zones for BCCs, 
was $60 million to $380 million per year. EPA estimates, based on its 
revised analysis, that the portion of that cost range attributable to 
today's rule to prohibit mixing zones for BCCs is between $12 million 
and $35 million per year (not $200,000 as was indicated in 1995).
    Not only does EPA believe that this revised estimate is reasonable, 
it believes that the upper estimate ($35 million annually) may be 
overstated. This is because the upper estimate is based on pre-1995 
effluent data. When EPA supplemented these data for today's rule using 
high-resolution and super clean analytical techniques for detecting 
BCCs in POTW effluents, it obtained the $12 million per year estimate. 
This lower estimate is due to the fact that concentrations in BCCs in 
POTW effluents were found to be substantially lower than expected.
    Complementing the Agency's opinion in this regard is DRI/McGraw-
Hill's independent review of the analyses of costs for the 1995 
Guidance from which the costs for the proposed rule were derived. This 
review found EPA to be ``conservative in the sense that, on the whole, 
higher costs were adopted in cases where assumptions were required due 
to incomplete data'' (DRI/McGraw-Hill, 1995). Thus, EPA expects that 
its cost estimates overstate, rather than underestimate, the costs 
associated with the Guidance and, by extension, today's rule.
    For these reasons and other reasons set forth in the rulemaking 
record, EPA believes that its revised economic analysis provides a 
substantiated estimate of the potential incremental costs of the rule. 
EPA also believes that today's rule is ``cost-justified.'' That is, EPA 
believes that the estimated costs are reasonable in view of the 
benefits derived from minimizing the adverse effects of pollutants such 
as mercury in the Great Lakes System as a result of this rule. Today's 
rule also complies with the test articulated in the GLWQA, which called 
for the reduction of BCC mixing zones to the maximum extent possible. 
EPA estimated that today's rule will result in a reduction of between 
225,000 and 668,000 toxic-weighted pounds (or between 876 and 81,718 
unweighted pounds) of pollutants from the Great Lakes System each year. 
This includes loadings of chlordane, DDT, dieldrin, 
hexachlorocyclohexane, alpha-hexachlorocyclohexane, beta-
hexachlorocyclohexane, hexachlorocyclohexane, lindane, mercury, PCBs, 
pentachlorobenzene, 1,2,4,5-tetrachlorobenzene, 2,3,7,8-TCDD, and 
toxaphene. As described previously, this will reduce the accumulation 
of BCCs in depositional areas of the Great Lakes, reducing the 
probability for bioaccumulation in the food chain and adverse effects 
on fish, wildlife, and humans. EPA believes that these avoided effects 
justify the costs even when the cost to remove a pound of a specific 
pollutant may be relatively high.
    In addition, EPA has codified exceptions to the mixing zone 
prohibition to ensure that the BCC reductions achieved under the rule 
are both technically feasible and cost-effective. Procedure 3.C.6.a.ii 
states that dischargers must reduce the loadings of BCCs to ``the 
maximum extent possible such than any additional controls or pollution 
prevention measures to reduce or ultimately eliminate the BCC would 
result in unreasonable economic effects on the discharger or the 
affected community because the controls or measures are not feasible or 
cost-effective.'' As noted above in Section III, EPA modified this 
provision from the 1995 Guidance to clarify the importance of 
implementing only those control strategies determined to be cost-
effective. For example, if the State determined that the discharger or 
affected community would face unreasonable economic effects as a result 
of implementing the rule, it could grant the exception.
    In relation to this topic, some commenters alleged that the cost 
justification required by the Court's remand necessitated a 
justification of benefits. However, as several industry commenters have 
observed in arguing that EPA's benefits analysis is irrelevant, the 
AISI Court already has held that EPA adequately explained the 
environmental benefits of its BCC mixing zone prohibition. Moreover, 
EPA may have understated the resulting benefits, because many benefits 
categories are not amenable to quantification (e.g., estimating the 
number of noncancer human health cases avoided from exposure to fish 
contaminated with mercury and monetizing those benefits) and can only 
be discussed in qualitative terms. In addition, EPA's benefits 
estimates do not account for the impact of pollution prevention 
strategies with respect to the environment as a whole; as a result of 
today's rule, not only will fewer BCCs be discharged into the Great 
Lakes System, but EPA expects that overall release of BCCs to the 
environment will be reduced as well, so that these pollutants are not 
simply transferred to the air or soil.

V. Special Provision for Certain New or Expanded Discharges of BCCs 
from Municipalities

    In proposing today's rule, EPA requested comments on excluding from

[[Page 67647]]

the definition of ``new discharge'' any new or expanded discharges of 
BCCs from POTWs when such discharges are necessary to prevent a public 
health threat to the community. EPA did not receive any comments 
directed at this exclusion. The Agency is promulgating this new 
exclusion because it believes that it is a reasonable, common sense 
policy that balances competing health risks. As such, new or expanded 
discharges to which this exclusion applies will be treated as existing 
discharges of BCCs for purposes of today's rule. See procedure 3.C.2 
(2).

VI. Economic Analysis

    As described above in Section IV, EPA revised its analysis of the 
potential costs associated with eliminating and, for existing 
discharges, phasing out mixing zones for BCCs from the analysis that 
accompanied the Guidance in 1995. EPA's estimated cost range for the 
1995 Guidance, which included the 1995 provision to prohibit mixing 
zones for BCCs, was $60 million to $380 million per year. EPA 
estimates, based on its revised analysis, that the portion of that cost 
range attributable to today's rule ranges from $12 million to $35 
million per year. This estimate, and EPA's methodology, are presented 
in the proposal for today's rulemaking (64 FR 53632, October 4, 1999).

VII. Administrative Requirements

A. Regulatory Planning and Review (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, or 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 entitlements, 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.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and 
therefore is not subject to OMB review.

B. Regulatory Flexibility Act, as amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act, generally requires an 
agency to prepare a regulatory flexibility analysis for 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. 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 based on 
Small Business Administration 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.
    EPA prepared a screening analysis to evaluate the financial impact 
on small entity dischargers that would be subject to the requirements 
of the rule (i.e., NPDES permit holders that may discharge BCCs). EPA 
identified 2,329 of these small entities and estimated that more than 
96% of them would not be significantly affected. EPA determined that 
potential impacts represent less than 1% of estimated revenues for 
2,290 small entity dischargers under the low cost scenario and 2,244 
under the high cost scenario. For small entities that may be affected 
more, EPA estimates the impact on small municipal dischargers to range 
from 3% to 5% under the low cost scenario for seven facilities, and 
from 3% to 14% under the high cost scenario for 43 facilities, with a 
midpoint of 5%. EPA determined that potential impacts on nonmunicipal 
dischargers represent less than 1% of estimated revenues.
    EPA believes that its screening analysis is conservative (erring on 
the side of higher costs and greater impacts on small entities than 
would normally be expected) because Great Lakes States and Tribes have 
flexibility to authorize mixing zones for small entities under certain 
technical and economic circumstances and EPA's screening analysis did 
not take these circumstances into consideration. EPA further believes 
that as States and Tribes exercise this flexibility for small municipal 
dischargers that may be affected by this rule the cost impact realized 
would be near the low end of the range. The screening analysis results 
were presented in more detail in the proposal for today's final 
rulemaking (64 FR 53632, October 4, 1999) and the analytical method is 
described in a document entitled RFA/SBREFA Screening Analysis for the 
Proposal to Amend the Final Water Quality Guidance for the Great Lakes 
System to Prohibit Mixing Zones for Bioaccumulative Chemicals of 
Concern (August 1999).
    EPA's analysis was based on the projected impact of the rule on 
existing small entities; however, the rule may also affect small 
entities that do not yet exist or that do not discharge BCCs at this 
time but may choose to do so in the future. EPA does not expect that 
new small entities discharging to the Great Lakes will experience 
significant economic impacts because, in EPA's view, it is highly 
unlikely that any new discharger would discharge BCCs in quantities to 
be affected by the proposed mixing zone prohibition. First, most BCCs 
are already banned from use and/or production or are severely 
restricted in use. Therefore, EPA does not expect them to be present in 
a new discharger's effluent above criteria levels. Second, for the few 
remaining BCCs that may be contaminating effluent as a result of 
household products or products and chemicals used in production, 
municipalities and commercial and industrial users of those products 
should be able to use substitutes for these products, rely on cleaner 
technologies that do not require their use or that do not produce BCCs 
as a by-product, or employ source controls to reduce releases of BCCs 
to acceptable levels. These pollution prevention alternatives often are 
significantly more cost-effective than the end-of-pipe treatment 
technologies that could be used in their place.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This 
rulemaking amends the 1995 Water Quality Guidance for the Great Lakes 
System to establish requirements that apply in the first instance to 
Great Lakes States and Tribes. Today's rule restricts the current 
discretion of States and Tribes to allow mixing zones when establishing 
water quality-based effluent limitations for discharges of BCCs to the

[[Page 67648]]

Great Lakes System. Great Lakes States and Tribes (or EPA, if a State 
or Tribe fails to do so) must adopt requirements to ensure that all 
discharges of BCCs to the Great Lakes System receive limits no greater 
than the water quality criteria for those BCCs. In the case of existing 
discharges of BCCs, Great Lakes States and Tribes need not require 
attainment of such limitations until November 15, 2010. Great Lakes 
States and Tribes also retain some discretion after that date to 
authorize mixing zones for existing discharges of BCCs in specified 
circumstances.
    The RFA only requires analysis of the economic impacts of a rule on 
the small entities that are subject to the requirements of a rule. 
United Distribution Cos. v. FERC, 88 F.3d 1105 at 1170 (D.C. Cir. 
1996), quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C. 
Cir. 1985). Today's rule applies to States and Tribes in the Great 
Lakes System when issuing NPDES permits. It establishes requirements 
that Great Lakes States and Tribes must adopt and apply to all new and 
existing discharges of BCCs in the Great Lakes System, including 
discharges from small entities. The universe of dischargers affected by 
the rule is certain and Great Lakes States and Tribes have no 
discretion in implementing the rule with respect to new BCC discharges 
and only limited authority to modify the requirements with respect to 
existing BCC discharges. In this sense, the rule imposes requirements 
on new and existing dischargers in the Great Lakes System.
    The requirements in this rulemaking do not become binding 
requirements on direct dischargers until they are used to derive 
effluent discharge limitations as conditions in an NPDES permit issued 
to the discharger. However, effluent limitations based on today's 
regulations must be included by NPDES permitting authorities as permit 
conditions when the permitting authority issues or reissues permits to 
direct dischargers discharging BCCs to the Great Lakes System. Based on 
this consideration, EPA has concluded that small entities will be 
subject to the regulation for purposes of the RFA, and EPA has 
accordingly evaluated the impact of the rule on small entities. Based 
on its assessment, the Agency concludes that this rulemaking will not 
have a significant economic impact on a substantial number of small 
entities for the reasons explained above.
    Although this final rule will not have a significant economic 
impact on a substantial number of small entities, EPA nonetheless has 
tried to reduce the impact of today's rule on small entities by 
authorizing an exception, granted solely at the discretion of the State 
or Tribe on a case-by-case basis, under certain circumstances. EPA 
believes that small entity dischargers will have an easier time meeting 
an economic threshold that would qualify them for the exception. Prior 
to promulgation of the final 1995 Water Quality Guidance, which 
contained the BCC mixing zone prohibition, EPA received in excess of 
23,000 pages of information and data from over 6,000 respondents on its 
April 16, 1993, proposal. To stay abreast of public expectations for 
the final Guidance, EPA continued to meet with State, Local, and Tribal 
government officials, financial officials and co-regulators, the 
regulated community and environmental interests to listen and openly 
discuss their concerns. During the post-proposal process for the 
Guidance, EPA participated in over 40 such meetings with over 1,000 
stakeholder representatives including small entities. The comments and 
issues raised by the various stakeholders were considered in EPA's 
option selection process and regulatory impact analysis for developing 
the final Guidance. The open public process resulted in meaningful 
changes to the final Guidance. Many of the provisions outlined in the 
proposal were revised for the final Guidance to increase flexibility 
for State, local, and Tribal implementation, and to reduce the impact 
of the Guidance on large and small entities. Today's final rule builds 
on that process.

C. Paperwork Reduction Act

    An agency may not conduct or sponsor and a person is not required 
to respond to a collection of information, unless it displays a 
currently valid OMB control number under the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq. The OMB control number for EPA's regulations are 
listed in 40 CFR part 9 and 48 CFR Chapter 15. Under this rule, the 
Great Lakes States and Tribes must adopt and submit to EPA provisions 
that are as protective as this amendment. See 40 CFR 132.1 and 
132.5(a). EPA received approval from OMB for that information 
collection as part of the 1995 rulemaking. OMB renewed its approval in 
September 30, 1998. The OMB control number is 2040-0180 and is listed 
in 40 CFR part 9. EPA will renew this information collection prior to 
the date by which Great Lakes States and Tribes must make submissions 
consistent with today's rule.

D. 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 EPA promulgates a 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 to 
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 rule an explanation 
why that 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 the 
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 amends part 132 to prohibit mixing zones 
for BCCs in the Great Lakes System. EPA has 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. The total annual 
impact of this rule on State, local, and Tribal governments and the 
private sector is not expected to exceed $12 to $35 million. Thus, 
today's rule to amend part 132 to prohibit mixing zones for BCCs in the 
Great Lakes System is not subject to the requirements of sections 202 
and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. As described above,

[[Page 67649]]

EPA does not expect that small governments, including Tribal 
governments with responsibility for implementing this rule, and small 
governments operating POTWs discharging to the Great Lakes, will 
experience significant economic impacts because most BCCs are already 
banned from use or are severely restricted in use. In those rare 
instances where the few remaining BCCs (i.e., BCCs that are not already 
banned or severely restricted) are found contaminating effluent to 
unacceptable levels as a result of household products or products and 
chemicals used in production, municipalities and commercial and 
industrial users of those products should be able to use substitutes 
for these products, rely on cleaner technologies that do not require 
their use or that do not produce BCCs as a by-product, or employ source 
controls to reduce releases of BCCs to acceptable levels. In addition, 
for existing discharges, there is some flexibility and discretion in 
how the rule is to be implemented by States and Tribes within the NPDES 
permit program. Thus, today's rule is not subject to the requirements 
of section 203 of UMRA.

E. Executive Order 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.''
    This final 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. Today's rule simply requires the 
Great Lakes States to add one discrete provision to the regulations and 
policies they were already required to adopt pursuant to the 1995 
Guidance. EPA's estimated cost range for the 1995 Guidance, which 
included the 1995 provision to prohibit mixing zones for BCCs, was $60 
million to $380 million per year. EPA estimates that only a small 
portion of that cost range, $12 million to $35 million per year, is 
attributable to today's rule. Similarly, this rule will not have a 
substantial direct effect upon the distribution of power and 
responsibilities among the various levels of government because the 
States retain primary responsibility for administering their NPDES 
permit programs, through which this rule is implemented. The rulemaking 
authorizes EPA to promulgate these mixing zone provisions only if an 
authorized State has failed to act. Accordingly, these provisions will 
not have a substantial direct effect on States or on intergovernmental 
relationships or responsibilities. Thus, the requirements of section 6 
of the Executive Order do not apply to this final rule.
    Although section 6 of Executive Order 13132 does not apply to this 
rule, EPA extensively involved State, local, and Tribal government 
representatives in the development of this amendment, notably during 
the process of developing the 1995 Guidance, which contained the 
original version of today's rule. The process used to develop the 
Guidance marked the first time that EPA had developed a major 
rulemaking effort in the water quality standards program through a 
regional public forum. The public process, which lasted over a seven-
year period and involved Great Lakes States, EPA, and other Federal 
agencies in open dialogue with citizens, Tribal and local governments, 
and industry in the Great Lakes Basin, is described further in the 
preamble to the Guidance. See 60 FR 15383 (March 23, 1995). As 
described above, today's action by EPA reinstates a provision nearly 
identical to the provision in the 1995 Guidance that was vacated by the 
Court in AISI. It thus reflects the State, local, and Tribal government 
input EPA received during the 1995 Guidance rulemaking.

F. 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 unless 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 officials 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 or impose substantial direct 
compliance costs on them. See section VII. D above for more discussion. 
Therefore, the requirements of section 3(b) of Executive Order 13084 do 
not apply to this rule. Nonetheless, EPA has extensively involved Great 
Lakes State, local, and Tribal governments in the development of this 
amendment, notably during the process of developing the 1995 Guidance, 
which contained the original version of this rule. Today's action by 
EPA proposes to reinstate a provision nearly identical to the provision 
in the 1995 Guidance that was vacated by the Court in AISI. It thus 
reflects the State, local, and Tribal government input EPA received 
during the 1995 Guidance rulemaking.

G. 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.
    This rule is not subject to the Executive Order because it is not 
economically significant as defined in Executive Order 12866. As noted 
earlier, however, children may be at a greater risk to BCCs than 
adults. If they are at greater risk, then they will benefit the most 
from this rule to prohibit mixing zones for BCCs in the Great Lakes 
System.

[[Page 67650]]

H. Endangered Species Act

    Section 7 of the Endangered Species Act (ESA) requires Federal 
agencies, in consultation with the U.S. Fish and Wildlife Service (FWS) 
and National Marine Fisheries Service (NMFS), to ensure their actions 
are not likely to jeopardize the continued existence of any listed 
species or result in the destruction or adverse modification of habitat 
of such species that have been designated as ``critical.'' Consultation 
is designed to assist Federal agencies in complying with the 
requirements of section 7 by supplying a process within which FWS and 
NMFS provide such agencies with advice on whether an action complies 
with the substantive requirements of ESA.
    In accordance with these requirements, EPA completed consultation 
with the FWS on the 1995 Guidance, and the FWS issued a biological 
opinion concluding that the Guidance was not likely to jeopardize the 
continued existence of listed species or result in the destruction or 
adverse modification of species' critical habitat. As explained above, 
today's rule essentially reinstates, with some clarification, the BCC 
mixing zone provisions of the 1995 Guidance. Since the substance of 
today's rule has already been the subject of section 7 consultation, 
the effects of today's rule have been addressed by the Services' prior 
biological opinion.

I. National Technology Transfer and Advancement Act

    As noted in the proposed rule, Section 12(d) of the National 
Technology Transfer and Advancement Act of 1995 (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 
the Office of Management and Budget, explanations when the Agency 
decides not to use available and applicable voluntary consensus 
standards.
    Today's rule does not involve technical standards; therefore, EPA 
did not consider using any voluntary consensus standards. EPA received 
no comments on this aspect of the rulemaking and no commenter 
identified any potentially applicable voluntary consensus standards for 
use in this regulation.

J. Submission to Congress and the General Accounting Office

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This rule is not a major rule as defined by 5 U.S.C. 804(2). 
This rule will be effective December 13, 2000.

VIII. Supporting Documents

    All documents that are referenced in this preamble are available 
for inspection and photocopying in the docket of the 1995 Guidance and 
the docket of this rulemaking at the address listed at the beginning of 
this preamble. A reasonable fee will be charged for photocopies.
    EPA is also making a number of documents available in electronic 
format at no incremental cost to users of the Internet (http://www.epa.gov/ost/GLI). These documents include the contents of this 
Federal Register document and several other supporting documents and 
materials.

IX. References

    Amyot, M., J.D. Lalonde, L. Poissant, and D.R.S. Lean. 1999. 
Mercury in Lake Ontario and the St. Lawrence River. Great Lakes 
Research Review 4(2): 1-4.
    DRI/McGraw-Hill. 1995. Great Lakes Water Quality Initiative, 
Cost Effectiveness Update. June.
    Elliot, J.E., R.J. Norstrom, A. Lorenzen, L.E. Hart, H. 
Philibert, S.W. Kennedy, J.J. Stegeman, G.D. Bllward, and K.M. 
Cheng. 1996. Biological effects of polychlorinated dibenzo-p-
dioxins, dibenzofurans, and biphenyls in bald eagle (Haliaeetus 
leucocephalus) chicks. Environmental Toxicology and Chemistry 15: 
782-93.
    Mason, R.T., and K.A. Sullivan. 1997. Mercury in Lake Michigan. 
Environmental Science and Technology 31: 942-47.
    Sweeney, B.W., D.H. Funk, and L.J. Standley. 1993. Use of the 
stream mayfly Cloeon triangulifer as a bioassay organism: life 
history response and body burden following exposure to technical 
chlordane. Environmental Toxicology and Chemistry 12: 115-25.
    U.S. EPA. 1995. Regulatory Impact Analysis for the Final Great 
Lakes Water Quality Guidance. U.S. Environmental Protection Agency, 
Washington, D.C.
    U.S. EPA. 1997. Guidance for Assessing Chemical Data for Use in 
Fish Advisories. Volume 2. Risk Assessment and Fish Consumption 
Limits. EPA 823-B-97-009. U.S. Environmental Protection Agency, 
Washington, D.C.
    U.S. EPA. 1999. Overview of Pollution Prevention Approaches at 
POTWs. Draft. Office of Science and Technology. U.S. Environmental 
Protection Agency, Washington, D.C.

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: November 2, 2000.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, Title 40, chapter I, part 
132 of the Code of Federal Regulations is amended 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 132.5 is amended by revising paragraphs (a) and (c) to 
read as follows:

Sec. 132.5  Procedures for adoption and EPA review.

    (a) Except as provided in paragraph (c) of this section, the Great 
Lakes States and Tribes shall adopt and submit for EPA review and 
approval the criteria, methodologies, policies, and procedures 
developed pursuant to this part no later than September 23, 1996. With 
respect to procedure 3.C of appendix F of this part, each Great Lakes 
State and Tribe shall make its submission to EPA no later than May 13, 
2002.
* * * * *
    (c) The Regional Administrator may extend the deadline for the 
submission required in paragraph (a) of this section if the Regional 
Administrator believes that the submission will be consistent with the 
requirements of this part and can be reviewed and approved pursuant to 
this section no later than March 23, 1997, or, for procedure 3.C of 
appendix F of this part, no later than November 13, 2002.
* * * * *

[[Page 67651]]

    3. Appendix F of part 132 is amended by adding procedure 3.C to 
read as follows:

Appendix F of Part 132--Great Lakes Water Quality Initiative 
Implementation Procedures

      
* * * * *

Procedure 3: * * *

    C. Mixing Zones for Bioaccumulative Chemicals of Concern (BCCs). 
The following requirements shall be applied in establishing TMDLs, 
WLAs in the absence of TMDLs, and preliminary WLAs for purposes of 
determining the need for WQBELs under procedure 5 of appendix F, for 
BCCs:
    1. There shall be no mixing zones available for new discharges 
of BCCs to the Great Lakes System. WLAs established through TMDLs, 
WLAs in the absence of TMDLs, and preliminary WLAs for purposes of 
determining the need for WQBELs for new discharges of BCCs shall be 
set no higher than the most stringent applicable water quality 
criteria or values for the BCCs in question. This prohibition takes 
effect for a Great Lakes State or Tribe on the date EPA approves the 
State's or Tribe's submission of such prohibition or publishes a 
notice under 40 CFR 132.5(f) identifying that prohibition as 
applying to discharges within the State or Federal Tribal 
reservation.
    2. For purposes of section C of procedure 3 of appendix F, new 
discharges are defined as: (1) A ``discharge of pollutants'' (as 
defined in 40 CFR 122.2) to the Great Lakes System from a building, 
structure, facility, or installation, the construction of which 
commences after the date the prohibition in section C.1 takes effect 
in that State or Tribe; (2) a new discharge from an existing Great 
Lakes discharger that commences after the date the prohibition in 
section C.1 takes effect in that State or Tribe; or (3) an expanded 
discharge from an existing Great Lakes discharger that commences 
after the date the prohibition in section C.1 takes effect in that 
State or Tribe, except for those expanded discharges resulting from 
changes in loadings of any BCC within the existing capacity and 
processes (e.g., normal operational variability, changes in intake 
water pollutants, increasing the production hours of the facility or 
adding additional shifts, or increasing the rate of production), and 
that are covered by the existing applicable control document. Not 
included within the definition of ``new discharge'' are new or 
expanded discharges of BCCs from a publicly owned treatment works 
(POTW as defined at 40 CFR 122.2) when such discharges are necessary 
to prevent a public health threat to the community (e.g., a 
situation where a community with failing septic systems is connected 
to a POTW to avert a potential public health threat from these 
failing systems). These and all other discharges of BCCs are defined 
as existing discharges.
    3. Up until November 15, 2010, mixing zones for BCCs may be 
allowed for existing discharges to the Great Lakes System pursuant 
to the procedures specified in sections D and E of this procedure.
    4. Except as provided in sections C.5 and C.6 of this procedure, 
permits issued on or after this provision takes effect in a Great 
Lakes State or Tribe shall not authorize mixing zones for existing 
discharges of BCCs to the Great Lakes System after November 15, 
2010. After November 15, 2010, WLAs established through TMDLs, WLAs 
established in the absence of TMDLs, and preliminary WLAs for 
purposes of determining the need for WQBELs under procedure 5 of 
appendix F for existing discharges of BCCs to the Great Lakes System 
shall be equal to the most stringent applicable water quality 
criteria or values for the BCCs in question.
    5. Exception for Water Conservation. Great Lakes States and 
Tribes may grant mixing zones for any existing discharge of BCCs to 
the Great Lakes System beyond the date specified in section C.4 of 
this procedure where it can be demonstrated, on a case-by-case 
basis, that failure to grant a mixing zone would preclude water 
conservation measures that would lead to overall load reductions in 
BCCs, even though higher concentrations of BCCs occur in the 
effluent. Such mixing zones must also be consistent with sections D 
and E of this procedure.
    6. Exception for Technical and Economic Considerations. Great 
Lakes States and Tribes may grant mixing zones beyond the date 
specified in section C.4 of this procedure for any existing 
discharge of a BCC to the Great Lakes System upon the request of a 
discharger, subject to sections C.6.a through C.6.c below.
    a. The State or Tribe must determine that:
    i. The discharger is in compliance with and will continue to 
implement, for the BCC in question, all applicable requirements of 
Clean Water Act sections 118, 301, 302, 303, 304, 306, 307, 401, and 
402, including existing National Pollutant Discharge Elimination 
System (NPDES) water-quality based effluent limitations; and
    ii. The discharger has reduced and will continue to reduce the 
loading of the BCC for which a mixing zone is requested to the 
maximum extent possible, such that any additional controls or 
pollution prevention measures to reduce or ultimately eliminate the 
BCC discharge would result in unreasonable economic effects on the 
discharger or the affected community because the controls or 
measures are not feasible or cost-effective.
    b. Any mixing zone established pursuant to this section shall:
    i. Not result in any less stringent limitations than those 
existing prior to November 13, 2000;
    ii. Be no larger than necessary to account for the technical 
constraints and economic effects identified pursuant to paragraph 
C.6.a.ii above;
    iii. Meet all applicable acute and chronic aquatic life, 
wildlife and human health criteria and values within and at the edge 
of the mixing zone or be consistent with the applicable TMDL or 
assessment and remediation plan authorized under procedure 3.A.
    iv. Be accompanied, as appropriate, by a permit condition 
requiring the discharger to implement an ambient monitoring plan to 
ensure compliance with water quality standards and consistency with 
any applicable TMDL or such other strategy consistent with Section A 
of this procedure, including the evaluation of alternative means for 
reducing the BCC from other sources in the watershed; and
    v. Be limited to one permit term unless the permitting authority 
makes a new determination in accordance with this section for each 
successive permit application in which a mixing zone for the BCC is 
sought.
    c. For each draft NPDES permit that would allow a mixing zone 
for one or more BCCs after November 15, 2010, the fact sheet or 
statement of basis for the draft permit that is required to be made 
available through public notice under 40 CFR 124.6(e) shall:
    i. Specify the mixing provisions used in calculating the permit 
limits; and
    ii. Identify each BCC for which a mixing zone is proposed.
    7. Any mixing zone authorized under sections C.3, C.5 or C.6 
must be consistent with sections D and E of this procedure, as 
applicable.
* * * * *
[FR Doc. 00-28709 Filed 11-9-00; 8:45 am]
BILLING CODE 6560-50-P
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