39440 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 455

[FRL–6126–6]

Amendments to the Effluent

Limitations Guidelines, Pretreatment

Standards, and New Source

Performance Standards for the

Organic Pesticide Chemicals

Manufacturing Industry—Pesticide

Chemicals Point Source Category

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Direct final rule.

SUMMARY: EPA is promulgating

amendments to regulations that limit

the discharge of pollutants into

navigable waters of the United States

and into publicly owned treatment

works (POTWs) by existing and new

sources that manufacture pesticide

active ingredients (PAIs). Today’s

amendments only affect new and

existing facilities that manufacture the

PAI pendimethalin. These amendments

are based on additional effluent

monitoring data submitted to the

Agency by the sole existing

pendimethalin manufacturer, the

American Cyanamid Company.

DATES: This direct final rule is effective

without further notice on October 20,

1998 unless EPA receives relevant

adverse comment by September 21,

1998. If relevant adverse comment is

received, EPA will publish a timely

withdrawal of the direct final rule in the

Federal Register and inform the public

that the rule will not take effect.

ADDRESSES: Send comments in triplicate

to Ms. Shari H. Zuskin, Office of Water,

Engineering and Analysis Division

(4303), U.S. Environmental Protection

Agency, 401 M Street, SW, Washington

DC 20460. Comments may also be sent

via e-mail to:

zuskin.shari@epamail.epa.gov.

Electronic comments must be submitted

in ACSII file avoiding the use of special

characters and any form of encryption.

Electronic comments will also be

accepted in WordPerfect 5.1 or 6.1 file

format. No Confidential Business

Information (CBI) should be submitted

through e-mail.

FOR FURTHER INFORMATION CONTACT: Ms.

Shari H. Zuskin at (202) 260–7130 or via

e-mail at: zuskin.shari@epamail.epa.gov.

SUPPLEMENTARY INFORMATION:

Regulated Entities

Entities potentially regulated by this

action are existing or new sources

which generate process wastewater from

the manufacture of the pesticide active

ingredient Pendimethalin. Regulated

categories and entities include:

Category Examples of regulated

Entities

Industry ......... • Existing or New Pesticide

Manufacturers of

Pendimethalin.

This table is not intended to be

exhaustive, but rather provides a guide

for readers regarding entities likely to be

regulated by this action. This table lists

the types of entities that EPA is now

aware could potentially be regulated by

this action. Other types of entities not

listed in the table could also be

regulated. To determine whether your

facility is regulated by this action, you

should carefully examine the

applicability criteria in § 455.20 of the

final rule, published in the Federal

Register on September 28, 1993 [58 FR

50869]. If you have questions regarding

the applicability of this action to a

particular entity, consult the person

listed in the preceding FOR FURTHER

INFORMATION CONTACT section.

Overview

This preamble describes the legal

authority of this direct final rule,

background information on the final

pesticide chemicals manufacturing

industry effluent limitations guidelines

and standards (58 FR 50638; September

28, 1993), the amendments to the

September 1993 final rule, and the

application of the technical and

economic methodologies developed for

the final rule to the development of

these amendments.

Abbreviations, acronyms, and other

terms used in this preamble are defined

in Appendix A of the preamble to the

final pesticide chemicals manufacturing

effluent limitations guidelines and

standards (58 FR 50638; September 28,

1993).

I. Legal Authority

II. Background

A. Development of Final Pesticide

Chemicals Manufacturing Guidelines

B. American Cyanamid Petition for Review

III. Amendments to the Final Pesticide

Chemicals Manufacturing Guidelines

IV. Environmental Impact of the

Amendments

V. Economic Impact of the Amendments

VI. Promulgation as a Direct Final Rule

VII. Related Acts of Congress and Executive

Orders

A. Executive Order 12866

B. Unfunded Mandates Reform Act

(UMRA)

C. Regulatory Flexibility Act as Amended

by the Small Business Regulatory

Enforcement Act of 1996 (SBREFA)

D. Congressional Review Act

E. Paperwork Reduction Act

F. Executive Order 13045

G. National Technology Transfer and

Advancement Act

I. Legal Authority

These amendments are being

promulgated to revise the effluent

guidelines and standards of

performance for the Organic Pesticide

Chemicals Subcategory of the Pesticide

Chemicals Point Source Category under

the authorities of Sections 301, 304, 306,

307, and 501 of the Clean Water Act,

also referred to as ‘‘the Act.’’

II. Background

A. Development of Final Pesticide

Chemicals Manufacturing Guidelines

A full discussion of the development

of the final pesticide chemicals

manufacturing effluent limitations

guidelines and standards is presented in

the preamble to the final rule (58 FR

50638; September 28, 1993). To

summarize, on April 10, 1992, (57 FR

12560) EPA proposed new effluent

limitations guidelines and standards for

new and existing facilities that

manufacture pesticide active ingredients

(PAIs). The PAI-specific numeric

limitations were based, wherever

possible, on actual industry monitoring

data of the effluent concentrations of

PAIs in wastewaters treated by full-scale

treatment systems considered to be best

available technology economically

achievable (BAT). Where actual fullscale data were not available, the final

BAT limitations were based on a

transfer of treatment system

performance data between structurally

similar PAIs, supported by data from

EPA or industry bench-scale treatability

studies. In some cases, the final BAT

limitations may require that existing

PAI treatment technologies be improved

by enhanced operations, such as:

hydrolysis with increased retention

time; carbon adsorption with increased

retention time; and additional PAI

monitoring. After incorporating new

data submittals (mostly additional longterm treatment system performance

data), as discussed in a Notice of Data

Availability (NOA) (58 FR 19392; April

14, 1993), EPA promulgated final

regulations for the pesticide chemicals

manufacturing industry on September

28, 1993.

B. American Cyanamid Petition for

Review

As part of the 1993 promulgated

effluent limitations guidelines and

standards, numerical limitations were

included based on incineration as the

BAT technology for pendimethalin and

two other PAIs (terbufos and phorate)
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations 39441

manufactured by American Cyanamid.

American Cyanamid incinerates

wastewater and other waste generated

during the manufacture of these three

PAIs, and discharges incinerator

scrubber blowdown from their facility.

The proposed numerical limitations for

these three PAIs were calculated using

data provided to EPA by American

Cyanamid, including annual production

data, the number of annual production

days, and daily flow rate and effluent

monitoring data for pendimethalin,

terbufos, and phorate.

In their comments on the proposed

rule, American Cyanamid disagreed

with EPA on the technical details of

how the numerical limitations were

developed for pendimethalin, terbufos,

and phorate. For pendimethalin,

American Cyanamid commented that

EPA had only included data from one of

their two incinerators used to treat

wastewaters containing pendimethalin.

American Cyanamid’s other comments,

concerning all three PAIs, focused

primarily on the calculation and use of

long-term flow rates and PAI loadings in

the incinerator scrubber blowdown

streams. EPA recalculated the

limitations for pendimethalin, phorate,

and terbufos based on American

Cyanamid’s comments, and presented

the revised limitations in the April 14,

1993, NOA. American Cyanamid did

not comment on the phorate and

terbufos limitations presented in the

NOA, but did comment on the

pendimethalin limitations. The

comments related to pendimethalin

questioned whether certain daily

loadings in their effluent monitoring

database should have been used to

calculate the pendimethalin limitations

based on the incinerator flow rate data

available on those days. EPA took these

comments into account when

calculating the final pendimethalin

limitations, which were promulgated on

September 28, 1993.

In February 1994, American

Cyanamid filed a petition for review of

the final effluent limitations guidelines

and standards (American Cyanamid

Company v. U.S. Environmental

Protection Agency, No. 94–1367 (8th

Cir.)). Among other things, American

Cyanamid disagreed with the statistical

approach EPA used in the final rule to

calculate mass-based limitations using

the daily mass loading, flow rate, and

production data available for

pendimethalin. After filing its petition,

American Cyanamid also provided EPA

with some additional long-term

monitoring data for the company’s

pendimethalin incineration operations.

Although EPA has not changed its

statistical approach for deriving the

limitations, the Agency has evaluated

the new monitoring data submitted by

American Cyanamid and has agreed,

through today’s rule amendments, to

revise the limitations for pendimethalin

based on these new data. EPA and

American Cyanamid also agreed on an

approach for determining which daily

monitoring data EPA should use to

calculate today’s revised pendimethalin

limitations. Specifically, EPA used

monitoring data for only those days

when both flow rate and PAI

concentration data (specifically

pendimethalin data) were available for

both operating incinerators. American

Cyanamid has agreed that it will

terminate its petition for review of the

final regulations in light of the new

pendimethalin limits that EPA is

promulgating today as well as an

additional letter that EPA has sent to the

company clarifying the operation of

these regulations.

III. Amendments to the Final Pesticide

Chemicals Manufacturing Guidelines

The amendments change the daily

maximum and monthly average effluent

limitations for pendimethalin listed for

new and existing direct and indirect

discharges. Table 2 to Part 455 lists the

‘‘Organic Pesticide Active Ingredient

Effluent Limitations Best Available

Technology Economically Achievable

(BAT) and Pretreatment Standards for

Existing Sources (PSES).’’ Table 3 to

Part 455 lists the ‘‘Organic Pesticide

Active Ingredient New Source

Performance Standards (NSPS) and

Pretreatment Standards for New Sources

(PSNS).’’

EPA has revised the daily maximum

effluent limitation for pendimethalin

from the current limit of 1.17 × 10-2

pounds pendimethalin pollutant/1,000

pounds pendimethalin product to a new

limit of 1.30 × 10-2 pounds

pendimethalin pollutant/1,000 pounds

pendimethalin product.

EPA has also revised the monthly

average effluent limitation for

pendimethalin from the current limit of

3.62 × 10-3 pounds pendimethalin

pollutant/1,000 pounds pendimethalin

product to a new limit of 3.99 × 10-3

pounds pendimethalin pollutant/1,000

pounds pendimethalin product.

IV. Environmental Impact of the

Amendments

The previously promulgated

pendimethalin limitations are being

amended in today’s notice based on

additional incinerator operating data

provided to EPA by American

Cyanamid. EPA modified the long-term

monitoring database used to calculate

the previously promulgated

pendimethalin limitations with these

operating data. EPA believes that the

long-term monitoring database

supporting today’s revised limitations

represents an accurate indication of

incinerator performance and achievable

pendimethalin discharge loadings. The

amended limitations represent relatively

small increases in the allowable

pendimethalin discharge loadings.

Therefore, these amendments are not

expected to significantly impact the

pendimethalin loadings currently

discharged from the incinerators. As

noted, there is only one existing

manufacturer of pendimethalin. For

these reasons, the revised limitations are

not expected to significantly affect the

environmental impact analysis that was

issued at the time the final rule was

promulgated.

V. Economic Impact of the

Amendments

These amendments to the previously

promulgated limitations do not alter the

BAT treatment technology for

pendimethalin. The Agency considered

the economic impact of the regulation

when the limitations were promulgated

in 1993, and concluded at that time that

the pendimethalin limitations were

economically achievable. Because the

amendments are based on the same BAT

technology and level of operation for

which costs were developed at

promulgation, the economic impact is

not expected to be significantly

changed.

VI. Promulgation as a Direct Final Rule

EPA is promulgating these changes to

the Part 455 limitations for

pendimethalin as a ‘‘direct final’’ rule

because the Agency believes they are

noncontroversial. We do not expect any

relevant adverse comments on these

rule changes. Nevertheless, since it is

possible that there are such interested

parties, EPA is providing an opportunity

for the public to submit comments on

today’s rule. Specifically, EPA is issuing

a separate, parallel proposal elsewhere

in today’s Federal Register that

references the rule changes set forth in

this direct final rule.

If EPA receives relevant adverse

comments on the rule by the close of the

60-day comment period, it will publish

a document in the Federal Register that

withdraws this direct final rule in a

timely manner. The Agency will then

address the public comments in a later

final rule that is based on today’s

proposed rule. Note that EPA will not

provide for a second comment period on

this action. Any parties interested in

commenting on this action must do so

at this time.
39442 Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations

1SBA defines a small business in the Pesticide

Chemicals Manufacturing Industry as an entity with

less than 500 firm employees.

If, as expected, EPA does not receive

relevant adverse comment on the rule,

then this direct final rule will become

effective on the effective date noted

above, without further notice.

VII. Related Acts of Congress and

Executive Orders

A. Executive Order 12866

Under Executive Order 12866, (58 FR

51,735 (October 4, 1993)) the Agency

must determine whether this regulatory

action is ‘‘significant’’ and therefore

subject to 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 is therefore not subject to

OMB review.

B. Unfunded Mandates Reform Act

(UMRA)

Title II of the Unfunded Mandates

Reform Act of 1995 (UMRA), P.L. 104–

4, establishes requirements for Federal

agencies to assess the effects of their

regulatory actions on State, local, and

tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with ‘‘Federal mandates’’ that may

result in expenditures to State, local,

and tribal governments, in the aggregate,

or to the private sector, of $100 million

or more in any one year. Before

promulgating an EPA rule for which a

written statement is needed, section 205

of the UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation 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 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.

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.

Again, today’s amendments do not

significantly alter the pendimethalin

numerical limitations and, in fact,

simply relax these limitations slightly.

Therefore, there is no additional

compliance cost associated with today’s

amendments. Thus, today’s final rule is

not subject to the requirements of

Sections 202 and 205 of the UMRA. In

addition, today’s amendments do not

add any additional requirements/

mandates on State, local and/or tribal

governments beyond those of the final

regulation promulgated in 1993.

Currently there is only one State

government that would have to revise

the permit for one facility based on the

amendments being promulgated today.

This State government has already been

notified. Therefore, EPA has determined

that this rule contains no regulatory

requirements that might significantly or

uniquely affect small governments.

C. Regulatory Flexibility Act as

Amended by the Small Business

Regulatory Enforcement Fairness Act of

1996 (SBREFA)

Under the Regulatory Flexibility Act

(RFA), 5 U.S.C. 601 et seq., as amended

by the Small Business Regulatory

Enforcement Fairness Act, EPA

generally is required to conduct a

regulatory flexibility analysis describing

the impact of the regulatory action on

small entities as part of the rulemaking.

However, under section 605(b) of the

RFA, if EPA certifies that the rule will

not have a significant economic impact

on a substantial number of small

entities, EPA is not required to prepare

an RFA. Pursuant to section 605(b) of

the Regulatory Flexibility Act, 5 U.S.C.

605(b), the Administrator certifies that

the final rule will not have a significant

economic impact on a substantial

number of small entities.

As discussed earlier in this notice,

there are no added costs to the regulated

community associated with compliance

with this final rule. The rule simply

replaces the current effluent limitations

and standards for one pesticide active

ingredient, pendimethalin, with less

stringent limitations and standards. In

these circumstances, there will

obviously be no increase in the cost of

compliance with the requirements.

Further, there is only one pesticide

manufacturer of pendimethalin in this

subcategory and the manufacturer is not

a small entity, as defined by the Small

Business Administration (SBA) 1.

Consequently, today’s change will not

have a significant economic impact on

a substantial number of small entities.

D. Congressional Review Act

The Congressional Review Act, 5

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

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and 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. This rule is not a

‘‘major rule’’ as defined by 5 U.S.C.

804(2).

E. Paperwork Reduction Act

There are no information collection

requirements in today’s final rule.

F. Executive Order 13045

The Executive Order, ‘‘Protection of

Children from Environmental Health

Risks and Safety Risks’’ (62 FR 19885,

April 23, 1997) applies to any rule that

EPA determines (1) ‘‘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,
Federal Register / Vol. 63, No. 140 /Wednesday, July 22, 1998 /Rules and Regulations 39443

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.

EPA interprets the E.O. 13045 as

encompassing only those regulatory

actions that are risk based or health

based, such that the analysis required

under section 5–501 of the E.O. has the

potential to influence the regulation.

This rule is not subject to E.O. 13045

because it does not involve decisions

regarding environmental health or safety

risks.

G. National Technology Transfer and

Advancement Act

Under section 12(d) of the National

Technology Transfer and Advancement

Act (‘‘NTTAA’’), the Agency is required

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,

business practices, etc.) that are

developed or adopted by voluntary

consensus standard bodies. Where

available and potentially applicable

voluntary consensus standards are not

used by EPA, the Act requires the

Agency to provide Congress, through

the Office of Management and Budget,

an explanation of the reasons for not

using such standards.

There are no specified and/or

otherwise affected analytical methods in

today’s amendments.

List of Subjects in 40 CFR Part 455

Environmental protection, Pesticide

chemicals manufacturing, Water

treatment and disposal, Water pollution

control.

Dated: July 14, 1998.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, title 40, chapter I of the Code

of Federal Regulations, is amended as

follows:

PART 455—[ AMENDED]

1. The authority citation for part 455

continues to read as follows:

Authority: Sections 301, 304, 306, 307, and

501 Pub. L. 92–500, 86 Stat, 816, Pub. L. 95–

217, 91 Stat. 156, and Pub. L. 100–4, 101 Stat.

7 (33 U.S.C. 1311, 1314, 1316, 1317, and

1361).

2. In Table 2 to Part 455 the entry for

pendimethalin is revised to read as

follows:

TABLE 2 TO PART 455.—ORGANIC PESTICIDE ACTIVE INGREDIENT EFFLUENT LIMITATIONS BEST AVAILABLE TECHNOLOGY

ECONOMICALLY ACHIEVABLE (BAT) AND PRETREATMENT STANDARDS FOR EXISTING SOURCES (PSES)

Pesticide

kg/kkg (lb/1,000 lb) pounds of

pollutant per 1000 lbs.

product

Notes

Daily maximum shall

not exceed

Monthly average shall not

exceed

* * * * * * * *

Pendimethalin .................................................................................................................................... 1.30×10 ¥2 3.99×10 ¥3

* * * * * * * *

* * * * *

3. In Table 3 to part 455 the entry for pendimethalin is revised to read as follows:

TABLE 3 TO PART 455.—ORGANIC PESTICIDE ACTIVE INGREDIENT NEW SOURCE PERFORMANCE STANDARDS (NSPS)

AND PRETREATMENT STANDARDS FOR NEW SOURCES (PSNS)

Pesticide

kg/kkg (lb/1,000 lb) pounds of

pollutant per 1000 lbs.

product

Notes

Daily maximum shall

not exceed

Monthly average shall not

exceed

* * * * * * * *

Pendimethalin .................................................................................................................................... 1.30×10 ¥2 3.99×10 ¥3

* * * * * * * *

* * * * *

[FR Doc. 98–19514 Filed 7–21–98; 8:45 am]

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