Water Quality Standards for Puerto Rico
[Federal Register: October 20, 2003 (Volume 68, Number 202)]
[Proposed Rules]
[Page 59894-59905]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20oc03-12]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-7576-2]
Water Quality Standards for Puerto Rico
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
establish designated uses and associated water quality criteria for six
waterbodies and an area of coastal waters known as the coastal ring in
the Commonwealth of Puerto Rico. These waterbodies are: Mayaguez Bay
(from Punta Guanajibo to Punta Algarrobo); Yabucoa Port; Guayanilla and
Tallaboa Bays (from Cayo Parguera to Punta Verraco); Ponce Port (from
Punta Carenero to Punta Cuchara) and San Juan Port (from the mouth of
R[iacute]o Bayam[oacute]n to Punta El Morro), as well as the area of
coastal waters known as the coastal ring, defined as all coastal waters
from 500 meters seaward to a maximum of three miles seaward. If this
proposal is promulgated, the Federally designated use of primary
contact recreation and the associated water quality criteria will be
added to the Commonwealth's designated use for the above-referenced
embayments and the coastal ring (referred to collectively below as the
``Subject Waterbodies'').
DATES: EPA will accept public comments on this proposed rule until
November 19, 2003. A public hearing will be held on November 6, 2003,
from 2 p.m. to 5 p.m. and from 7 p.m. to 9 p.m. Both oral and written
comments will be accepted at the hearing.
ADDRESSES: Comments may be submitted by mail to Docket Manager,
Proposed Water Quality Standards for Puerto Rico, U.S. EPA Region 2,
290 Broadway, New York, New York 10007, Attention Docket ID No. OW-
2003-0072. Comments may also be submitted electronically or through
hand delivery/courier. Follow the detailed instructions as provided in
Section I.C. of the SUPPLEMENTARY INFORMATION section. The public
hearing will occur at the Universidad Metropolitana (UMET) Theatre,
Ave. Ana G. Mendez, Km 0.3, Cupey, Puerto Rico 00928.
FOR FURTHER INFORMATION CONTACT: Wayne Jackson, U.S. EPA Region 2,
Division of Environmental Planning and Protection, 290 Broadway, New
York, New York 10007 (telephone: 212-637-3807 or e-mail:
jackson.wayne@epa.gov) or Claudia Fabiano, U.S. EPA Headquarters,
Office of Science and Technology, 1200 Pennsylvania, Avenue NW., Mail
Code 4305T, Washington, DC 20460 (telephone: 202-566-0446 or e-mail:
fabiano.claudia@epa.gov).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. General Information
A. Who is Potentially Affected by this Rule?
B. How Can I Get Copies of This Document and Other Related
Information?
1. Docket
2. Electronic Access
C. How and to Whom Do I Submit Comments?
1. Electronically
2. By Mail
3. By Hand Delivery or Courier
D. What Should I Consider as I Prepare My Comments for EPA?
II. Background
A. Statutory and Regulatory Background
B. Current Puerto Rico Water Quality Standards
C. Factual Background
1. Summary of Commonwealth and EPA Administrative Actions
2. Summary of Legal Actions
III. Use Designations and Criteria for Waters Currently Designated
as Class SC
A. Proposed Use Designations and Criteria for the Subject
Waterbodies
B. Request for Comment and Data
IV. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Site-Specific Criteria
C. Variances
V. Economic Analysis
A. Identifying Affected Facilities
B. Method for Estimating Potential Compliance Costs
C. Results
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions that Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
I. General Information
A. Who Is Potentially Affected by This Rule?
Citizens concerned with water quality in Puerto Rico may be
interested in this rulemaking. Facilities discharging pollutants to
certain waters of the United States in Puerto Rico could be indirectly
affected by this rulemaking since water quality standards are used in
determining water quality-based National Pollutant Discharge
Elimination System (NPDES) permit limits. Categories and entities that
may indirectly be affected include:
[[Page 59895]]
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Examples of potentially
Category regulated entities
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Industry.................................. Industries discharging
pollutants to the waters
identified in Sec.
131.40.
Municipalities............................ Publicly-owned treatment
works discharging
pollutants to the waters
identified in Sec.
131.40.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be affected by this
action. This table lists 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 could also be affected. To determine whether
your facility may be affected by this action, you should carefully
examine the water bodies identified in Sec. 131.40 of today's proposed
rule. If you have questions regarding the applicability of this action
to a particular entity, consult one of the persons listed in the
preceding FOR FURTHER INFORMATION CONTACT section.
B. How Can I Get Copies of This Document and Other Related Information?
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2003-0072. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing
under Proposed Water Quality Standards for Puerto Rico at Division of
Environmental Planning and Protection, U.S. EPA Region 2, 290 Broadway,
New York, New York 10007, and Carribean Environmental Protection
Division, U.S. EPA Region 2, 1492 Ponce De Leon Avenue, Suite 417,
Santurce, Puerto Rico 00907. These Docket Facilities are open from 9
a.m. to 3:30 p.m., Monday through Friday, excluding legal holidays. The
Docket telephone numbers are 212-637-3807 and 787-977-5836,
respectively. A reasonable fee will be charged for copies.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the Federal Register
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket, will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility identified in section I.B.1. EPA intends to work
towards providing electronic access to all of the publicly available
docket materials through EPA electronic public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the version of the comment that is placed in EPA's
electronic public docket. The entire printed comment, including the
copyrighted material, will be available in the public docket identified
in section I.B.1.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the Docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
C. How and to Whom Do I Submit Comments?
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' EPA is not
required to consider these late comments.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD-ROM you submit, and in any cover letter accompanying
the disk or CD-ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
i. EPA Dockets. Your use of EPA's electronic public docket to
submit comments to EPA electronically is EPA's preferred method for
receiving comments. Go directly to EPA Dockets at http://www.epa.gov/
edocket, and follow the online instructions for submitting comments.
To access EPA's electronic public docket from the EPA Internet Home Page,
select ``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once
in the system, select ``search,'' and then key in Docket ID OW-2003-
0072. The system is an ``anonymous access'' system, which means EPA
will not know your identity, e-mail address, or other contact
information unless you provide it in the body of your comment.
[[Page 59896]]
ii. E-mail. Comments may be sent by electronic mail (e-mail) to
OW-Docket@epa.gov, Attention Docket ID No. OW-2003-0072. In contrast to
EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the Docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
iii. Disk or CD-ROM. You may submit comments on a disk or CD-ROM
that you mail to the address identified in section I.C.2. These
electronic submissions will be accepted in WordPerfect or ASCII file
format. Avoid the use of special characters and any form of encryption.
2. By Mail. Send your comments to: Docket Manager, Proposed Water
Quality Standards for Puerto Rico, U.S. EPA Region 2, 290 Broadway, New
York, New York 10007, Attention Docket ID No. OW-2003-0072.
3. By Hand Delivery or Courier. Deliver your comments to the
address identified in section I.C.2., attention Docket ID OW-2003-0072.
Such deliveries are only accepted during the Docket's normal hours of
operation as identified in section I.B.1.
D. What Should I Consider as I Prepare My Comments for EPA?
You may find the following suggestions helpful for preparing your
comments:
1. Explain your views as clearly as possible.
2. Describe any assumptions that you used.
3. Provide any technical information and/or data you used that
support your views.
4. If you estimate potential burden or costs, explain how you
arrived at your estimate.
5. Provide specific examples to illustrate your concerns.
6. Offer alternatives.
7. Make sure to submit your comments by the comment period deadline
identified.
8. To ensure proper receipt by EPA, identify the appropriate docket
identification number in the subject line on the first page of your
response. It would also be helpful if you provided the name, date, and
Federal Register citation related to your comments.
II. Background
A. Statutory and Regulatory Background
Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or ``the
Act'') directs States, Territories, and authorized Tribes (hereafter
referred to as ``States''), with oversight by EPA, to adopt water
quality standards to protect the public health and welfare, enhance the
quality of water and serve the purposes of the CWA. Under section 303,
States are required to develop water quality standards for navigable
waters of the United States within the State. Section 303(c) provides
that water quality standards shall include the designated use or uses
to be made of the water and water quality criteria necessary to protect
those uses. The designated uses to be considered by States in
establishing water quality standards are specified in the Act: public
water supplies, propagation of fish and wildlife, recreation,
agricultural uses, industrial uses and navigation. States are required
to review their water quality standards at least once every three years
and, if appropriate, revise or adopt new standards. The results of this
triennial review must be submitted to EPA, and EPA must approve or
disapprove any new or revised standards.
Section 303(c) of the CWA authorizes the EPA Administrator to
promulgate water quality standards to supersede State standards that
have been disapproved or in any case where the Administrator determines
that a new or revised standard is needed to meet the CWA's
requirements. In an August 11, 2003, Opinion and Order from the United
States District Court for the District of Puerto Rico in the case of
CORALations and the American Littoral Society v. United States
Environmental Protection Agency, et al. (No. 02-1266 (JP) (D. Puerto
Rico)), the Court ordered EPA to prepare and publish new or revised
water quality standards for those waters which are currently classified
as ``Class SC'' (secondary contact recreation) waters by the
Commonwealth of Puerto Rico. EPA is, therefore, proposing Federal water
quality standards for these waters in Puerto Rico.
EPA regulations implementing CWA section 303(c) are published at 40
CFR part 131. Under these rules, the minimum elements that must be
included in a State's water quality standards include: use designations
for all water bodies in the State, water quality criteria sufficient to
protect those use designations, and an antidegradation policy (see 40
CFR 131.6).
Water quality standards establish the ``goals'' for a water body
through the establishment of designated uses. Designated uses, in turn,
determine what water quality criteria apply to specific water bodies.
Section 101(a)(2) of the Act establishes as a national goal ``water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and * * * recreation in and on the water,''
wherever attainable. These national goals are commonly referred to as
the ``fishable/swimmable'' goals of the Act. Section 303(c)(2)(A)
requires water quality standards to ``protect the public health or
welfare, enhance the quality of water, and serve the purposes of this
[Act].'' EPA's regulations at 40 CFR part 131 interpret and implement
these provisions by requiring that water quality standards provide for
fishable/swimmable uses unless those uses have been shown to be
unattainable. The mechanism in EPA's regulations used to overcome this
presumption is a use attainability analysis (UAA).
Under 40 CFR 131.10(j), States are required to conduct a UAA
whenever the State designates or has designated uses that do not
include the uses specified in section 101(a)(2) of the CWA or when the
State wishes to remove a designated use that is specified in section
101(a)(2) of the CWA or adopt subcategories of uses that require less
stringent criteria. Uses are considered by EPA to be attainable, at a
minimum, if the uses can be achieved (1) when effluent limitations
under section 301(b)(1)(A) and (B) and section 306 are imposed on point
source dischargers and (2) when cost effective and reasonable best
management practices are imposed on nonpoint source dischargers. 40 CFR
131.10 lists grounds upon which to base a finding that attaining the
designated use is not feasible, as long as the designated use is not an
existing use: (i) Naturally occurring pollutant concentrations prevent
the attainment of the use; (ii) Natural, ephemeral, intermittent or low
flow conditions or water levels prevent the attainment of the use,
unless these conditions may be compensated for by the discharge of
sufficient volume of effluent discharges without violating State water
conservation requirements to enable uses to be met; (iii) Human caused
conditions or sources of pollution prevent the attainment of the use
and cannot be remedied or would cause more environmental damage to
correct than to leave in place; (iv) Dams, diversions or other types of
hydrologic modifications preclude the attainment of the use, and it is
not feasible to
[[Page 59897]]
restore the water body to its original condition or to operate such
modification in a way which would result in the attainment of the use;
(v) Physical conditions related to the natural features of the water
body, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like unrelated to water quality, preclude
attainment of aquatic life protection uses; or (vi) Controls more
stringent than those required by sections 301(b) and 306 of the CWA
would result in substantial and widespread economic and social impact.
A UAA is defined in 40 CFR 131.3(g) as a ``structured scientific
assessment of the factors affecting the attainment of a use which may
include physical, chemical, biological, and economic factors'' (see
Sec. Sec. 131.3 and 131.10). In a UAA, the physical, chemical and
biological factors affecting the attainment of a use are evaluated
through a water body survey and assessment.
Guidance on water body survey and assessment techniques is
contained in the Technical Support Manual, Volumes I-III: Water Body
Surveys and Assessments for Conducting Use Attainability Analyses.
Volume I provides information on water bodies in general; Volume II
contains information on estuarine systems; and Volume III contains
information on lake systems (Volumes I-II, November 1983; Volume III,
November 1984). Additional guidance is provided in the Water Quality
Standards Handbook: Second Edition (EPA-823-B-94-005, August 1994).
Guidance on economic factors affecting the attainment of a use is
contained in the Interim Economic Guidance for Water Quality Standards:
Workbook (EPA-823-B-95-002, March 1995). In developing today's
proposal, EPA followed the same procedures set out for States in 40 CFR
part 131 and EPA's implementing policies, procedures, and guidance.
EPA regulations effectively establish a ``rebuttable presumption''
that fishable/swimmable uses are attainable and, therefore, should
apply to a water body unless it is demonstrated that such uses are not
attainable. EPA adopted this approach to help achieve the national goal
articulated by Congress that, ``wherever attainable,'' water quality
provide for the ``protection and propagation of fish, shellfish and
wildlife'' and for ``recreation in and on the water.'' CWA section
101(a). While facilitating achievement of Congress' goals, the
rebuttable presumption approach preserves States' paramount role in
establishing water quality standards in weighing any available evidence
regarding the attainable uses of a particular water body. The
rebuttable presumption approach does not restrict the discretion that
States have to determine that fishable/swimmable uses are not, in fact,
attainable in a particular case. Rather, if the water quality goals
articulated by Congress are not to be met in a particular water body,
the regulations simply require that such a determination be based upon
a credible ``structured scientific assessment'' of use attainability.
EPA's approach in this rulemaking does not undermine the
Commonwealth's primary role in designating uses and setting criteria
for waters in Puerto Rico. If the Commonwealth reclassifies the Subject
Waterbodies to a swimmable designated use or adopts criteria sufficient
to protect a swimmable use prior to EPA's finalizing this rule, EPA
would expect to approve the Commonwealth's action and not finalize this
rule. Alternatively, if the Commonwealth completes a sound analysis of
use attainability, taking into account appropriate biological, chemical
and physical factors, and concludes that the swimmable use is not
attainable for these water bodies, EPA would expect to approve the
Commonwealth's action, if it meets all requirements of EPA's
regulations at 40 CFR part 131, and not finalize this rule. If the
Commonwealth submits an adequate analysis which concludes that the
swimmable use is not attainable after EPA takes final action, EPA would
expect to initiate a rulemaking to rescind the rule. EPA encourages the
Commonwealth to continue evaluating the appropriate use designation for
these water bodies.
B. Current Puerto Rico Water Quality Standards
Puerto Rico's water quality standards regulation (PRWQSR) at
Article 2 establishes a classification system containing the designated
uses for water bodies in the Commonwealth. Puerto Rico has applied
these use designations to all coastal, estuarine, and surface waters of
the Commonwealth.
The current use designation adopted by the Commonwealth for the
Subject Waterbodies is Class SC. Coastal waters designated as Class SC
are ``intended for uses where the human body may come into indirect
contact with the water (such as fishing, boating, etc.) and for use in
propagation and preservation of desirable species, including threatened
or endangered species.'' (PRWQSR, at Article 3.2.3.)
EPA's regulations at 40 CFR part 131 require that waters designated
for a use less protective than a fishable/swimmable use be supported by
a use attainability analysis, because neither the best usage or
conditions related to the best usage for these waters include the
fishable/swimmable uses, nor do all the criteria necessary to protect
those uses apply. ``Fishing'' and ``propagation and preservation of
desirable species'' are included as a condition of the best usage. As
such, Class SC includes the ``fishable'' use established as a goal in
the Clean Water Act. However, primary contact recreation and the
criteria necessary to protect this use are not included for Class SC.
Puerto Rico uses fecal coliform and enterococci bacteria criteria to
protect for the primary contact recreation use. Class SC includes
bacteria criteria sufficient to protect secondary contact recreation.
However, these criteria do not provide protection from pathogens
associated with fecal contamination during direct contact with the
water and, therefore, do not protect for the swimming use.
Section 3.2.3 of the PRWQSR contains the use classifications and
associated use-specific criteria for Class SC waters for dissolved
oxygen, fecal coliforms, pH, color, turbidity, taste and odor producing
substances, sulfates, and surfactants as MBAS (methylene blue active
substances). With the exception of the criteria for fecal coliforms,
which are not fully protective of the primary contact recreation use,
these criteria for Class SC waters have been found to be protective of
CWA section 101(a) uses and have been previously approved by EPA. These
criteria are intended to protect aquatic life and/or general aesthetic
conditions in these waters.
Water Quality Criteria for bacteria is the only parameter that is
specifically intended to protect the primary contact recreation use.
Water quality criteria for bacteria are intended to protect bathers
from gastrointestinal illness in recreational waters. The water quality
criteria establish levels of indicator bacteria that demonstrate the
presence of fecal contamination. These levels should not be exceeded in
order to protect bathers in fresh and marine recreational waters. The
inclusion of primary contact recreation as a use for Class SC waters
and the application of the indicator bacteria criteria described above
would result in the Class SC waters being fully ``swimmable.'' The
remainder of the criteria that Puerto Rico applies to its coastal
waters are sufficient to protect other CWA section 101(a) uses, such as
aquatic life protection and human health protection from the
consumption of fish based on the level of toxic pollutants in the water
and in the fish tissue.
[[Page 59898]]
Section 3.1 of the PRWQSR contains narrative water quality criteria
and numeric criteria for substances in toxic concentrations including
inorganic substances, pesticides, non-pesticide organic substances,
carbon tetrachloride, volatile organic substances, and semi-volatile
organic substances. The criteria in section 3.1 are applicable to all
waters of Puerto Rico, including those waters classified as Class SC.
These criteria are protective of all applicable uses, and have been
approved by EPA.
The Puerto Rico Environmental Quality Board (EQB) applies the Class
SC designation for the bay components of the Subject Waterbodies from
the zone subject to the ebb and flow of tides (mean sea level) to 10.3
nautical miles seaward, and from 500m from the shoreline to 10.3
nautical miles seaward for the coastal ring. However, as discussed
below, it is clear that State jurisdiction under the CWA is limited to
``navigable waters'' of the United States, including territorial seas
which extend only three miles seaward. Accordingly, in this proposal,
the new use designation for coastal waters is limited to the
territorial seas.
Section 303(c)(2)(A) of the CWA provides that States are to adopt
water quality standards for ``navigable waters.'' Under section
303(c)(3) (which provides for EPA review of State water quality
standards), if EPA approves the State's water quality standards, they
become the standards for the applicable waters of the State. Where the
Administrator proposes and promulgates water quality standards, section
303(c)(4) provides that the State water quality standards shall apply
to ``navigable waters.''
Section 502(7) of the CWA defines ``navigable waters'' as waters of
the United States, including the ``territorial seas.'' Section 502(8)
defines ``territorial seas'' to mean ``the belt of the seas measured
from the line of ordinary low water along that portion of the coast
which is in direct contact with the open sea and the line marking the
seaward limit of inland waters, and extending seaward a distance of
three miles.'' The ``contiguous zone'and ``ocean'' are defined
separately (see sections 502(9) and (10)).
The CWA also includes two other definitions (for ``effluent
limitations'' and ``discharge of a pollutant'') that distinguish
navigable waters from the contiguous zone and the ocean. These
definitions also indicate that navigable waters are not meant to
include the contiguous zone and the ocean. EPA has a long standing
interpretation of the statute that does not include the contiguous zone
and ocean in the definition of navigable waters which is reflected in
its regulations (40 CFR 122.2). The CWA authorizes each State that
elects to administer its own NPDES permit program for discharges into
navigable waters within its jurisdiction, to submit its program for EPA
review (see section 402(b)). If EPA approves the State program, EPA
suspends its issuance of permits under section 402(a), but only as to
those navigable waters subject to the State program (see section
402(c)(1)). While the CWA definition of navigable waters includes the
territorial sea, it does not include the contiguous zone or the ocean,
both of which are defined as regions beyond the territorial sea. Read
together, these provisions plainly indicate that Congress intended the
State NPDES program jurisdiction to be limited to navigable waters
including the territorial sea. States cannot assume NPDES permitting
authority beyond the three-mile limit of the territorial sea.
Two decisions in the Ninth Circuit Court have addressed these
jurisdictional issues. In Pacific Legal Foundation et al. v Costle, 586
F. 2d 657 (9th Cir. 1978) rev'd on other grounds, 445 U.S. 198., the
Court held that only the Administrator has authority to issue NPDES
permits for waters beyond the territorial seas, and that the contiguous
zone and the ocean clearly extend beyond the outer limits of the
``navigable waters'' which mark the extent of the power of the States
to administer their own permit programs. The Court noted that ``had
Congress intended the power of the States to extend beyond the
territorial seas,'' it easily could have so provided.'' Id. at 656.
Further, citing the definition of ``discharge of a pollutant,'' which
distinguishes discharges to navigable waters from discharges to the
contiguous zone or the ocean, the Court concluded that ``it is apparent
that `ocean' and `contiguous zone' waters are not included within the
scope of `navigable waters' * * *'' Id.
In Natural Resources Defense Council v. EPA, 863 F.2d 1420, (9th
Cir. 1988), the Court held that ``navigable waters'' include only those
waters landward from the territorial sea. Id. at 1435. In this case,
Florida argued that it had jurisdiction to apply water quality
standards more than three miles from the coast. The State contended
that its maritime boundaries extended three maritime leagues
(approximately 10.3 miles). Florida maintained that EPA must assure
that discharges under EPA's general permit would comply with the
State's water quality standards out to 10.3 miles. The Court disagreed,
finding that the State's jurisdiction is limited to the territorial
seas. The Court noted that it is ``difficult to ignore the express
language of the Clean Water Act's definition of territorial seas.''
And, further, that ``if there were any doubt that Congress intended to
create a uniform three-mile boundary in the (CWA), the legislative
history * * * indicates Congress consciously defined the term
`territorial seas' to make clear the jurisdiction limits of this
particular legislation and its relationship to other statutes.'' Id. at
1436. For these reasons, EPA is proposing the new use designation for
coastal waters limited to the territorial seas.
EPA is proposing to include primary contact recreation as a
specified designated use for the Subject Waterbodies. In developing
today's proposal, EPA evaluated the PRWQSR to determine which bacteria
criteria would protect for the ``swimmable'' use, and would therefore
ensure achievement of the CWA section 101(a)(2) goals. As a result, EPA
is proposing the bacteriological criteria associated with Class SB
(primary contact recreation) for fecal coliform and enterococci set out
at Section 3.2.2 of the PRWQSR for the Subject Waterbodies because
these criteria are protective of primary contact recreation. The
proposed water quality standards for these water bodies, if ultimately
promulgated, will be the basis for establishing NPDES permit limits by
EPA Region 2.
C. Factual Background
1. Summary of Commonwealth and EPA Administrative Actions
In August 1990, the Commonwealth of Puerto Rico adopted revisions
to the PRWQSR. These were sent to EPA on September 21, 1990, with the
caveat from the Chairman of the EQB that the transmittal may not be the
final submittal, since EQB was going to have public hearings on
November 1, 1990. Because of this caveat, and because the requisite
certification from the Commonwealth's Secretary of Justice was not
submitted with the revisions as required by 40 CFR 131.6(e), EPA did
not act on these revisions immediately.
From 1991 to 1993, EPA Region 2 worked with EQB on a series of
draft revisions to the PRWQSR. These drafts were never adopted by
Puerto Rico. In 1992, EPA included Puerto Rico in the National Toxics
Rule, in large part because EPA did not consider the 1990 revisions to
be officially adopted.
The requisite certification from the Commonwealth's Secretary of
Justice was ultimately submitted to EPA on
[[Page 59899]]
February 25, 2002. Upon receipt of this certification EPA took final
action on all new and revised provisions of the 1990 PRWQSR on March
28, 2002. These revisions included 11 separate new or revised
provisions.The 1990 revisions to the PRWQSR, however, did not include
any changes to the designation of specific waterbody segments,
including upgrades from Class SC to SB.
On March 28, 2003, EQB submitted additional revisions to the PRWQSR
that EPA approved on June 26, 2003. These revisions included the
reclassification of ten bays/estuaries, previously classified as Class
SC waters, to Class SB (Article 2.1.3). These included: Aguadilla Bay
(from Punta Boquer[oacute]n to Punta Borinquen); Arecibo Bay (from
Punta Maracayo to Punta Caracoles); Fajardo Bay (from Playa Sardinera
to Playa de Fajardo); Roosevelt Roads (from Punta Cabra de Tierra to
Punta Cascajo); Port of Naguabo (from Playa de Naguabo to El Morrillo);
Jobos Bay and Laguna de la Mareas (from Punta Rodeo to Punta
Colchones); Gu[aacute]nica Bay inland waters north of the mouth of the
river; Port of Dewey in Culebra; and Port of Isabel Segunda in Vieques
and Puerto Real in Vieques between Cayo de Tierra and Cayo Real.
While the March 28, 2003, revisions to the PRWQSR did address ten
bays/estuaries that were previously classified as Class SC waters by
reclassifying them to Class SB, Puerto Rico recognized that it still
needed to address the Subject Waterbodies. In an effort to do so, EQB,
in its State Fiscal Year 2003 CWA Section 604(b) Consolidated Workplan,
committed to develop a plan to outline a schedule for data collection
and analysis and identify the applicable regulatory actions for these
waters. EQB is currently completing this plan.
2. Summary of Legal Actions
On February 20, 2002, a complaint was filed in the U.S. District
Court for the District of Puerto Rico by three environmental groups:
CORALations, American Littoral Society, and the American Canoe
Association. In this action, the plaintiffs alleged, among other
things, that certain actions by EPA personnel had triggered a mandatory
duty under section 303(c) of the CWA for EPA to prepare and propose
regulations setting forth a revised water quality standard for any
coastal waters that remained classified SC. The Court, in its August
11, 2003, Opinion and Order, ordered EPA to prepare and publish new or
revised water quality standards for those coastal waters which are
currently classified as Class SC waters.
III. Use Designations and Criteria for Waters Currently Designated as
Class SC
A. Proposed Use Designations and Criteria for the Subject Waterbodies
EPA evaluated all available data and information to determine
whether the swimmable use is attainable in the Subject Waterbodies.
EPA's analysis was informed by the regulatory provisions at 40 CFR part
131 and technical guidance that EPA provided to States for developing
use attainability analyses. The information that EPA used in its
evaluation of the coastal ring component of the Subject Waterbodies
shows that the swimmable use is attainable in these waters. That
information included all available Quarterly Reports of the 301(h)
Waiver Demonstration Studies for five Regional Wastewater Treatment
Plants that discharge to the waters comprising the coastal ring. The
ambient water quality data collected as part of these quarterly reports
showed that the applicable bacteria criteria to protect primary contact
recreation (fecal coliform and enterococci) were being attained in the
waters of the coastal ring outside of the designated mixing zones. The
quarterly reports also demonstrated that the bacteria criteria to
protect primary contact recreation are being met at the edge of the
mixing zone (based on the measured end-of-pipe concentrations of
bacteria at each Regional Wastewater Treatment Plant and the critical
initial dilution that is achieved at each ocean outfall).
As discussed in the Puerto Rico Water Quality Inventory and List of
Impaired Waters--2002 305(b)/303(d) Integrated Report Final Version
(February 2003), there is currently little or no data available on
which to determine the attainability of the swimmable use in the bay
components of the Subject Waterbodies. According to this report, there
is insufficient data to determine the use attainment for 38% of the
coastal miles and 89% of the estuarine acres. The Subject Waterbodies
with insufficient data to make a use attainment determination include
Yabucoa Port, portions of Guayanilla and Tallaboa Bays, and San Juan
Port. The EQB determined that the following Subject Waterbodies were
attaining water quality standards: Mayaguez Bay, Ponce Port, and
portions of Guayanilla and Tallaboa Bays. However, EPA's regulations at
40 CFR part 131 require that water quality standards provide for
fishable/swimmable uses unless those uses have been shown to be
unattainable, which effectively creates a rebuttable presumption of
attainability. If the Commonwealth takes into account the appropriate
biological, chemical, and physical factors in completing a sound
analysis of use attainability and concludes that the swimmable use is
not attainable in these waterbodies, EPA would expect to approve the
Commonwealth's action (if it meets all requirements of EPA's
regulations at 40 CFR part 131). In an effort to properly characterize
the attainability of the bays which remain classified SC, EQB is
developing a plan to outline a schedule for data collection and
analysis in order to provide the information necessary for EQB to
demonstrate whether the swimmable use is attainable in these waters.
The last broad category of information considered by EPA in its
decision-making process was monitoring data from a sample of
potentially affected dischargers to the water bodies (as reflected in
Discharge Monitoring Reports or DMRs). As discussed in section V, EPA
analyzed the extent to which the proposed Federal use designations and
criteria may lead to the development of more stringent NPDES permit
limits and, if so, what types of controls would be needed by
potentially affected facilities to meet such limits. Discharger
information was used in one of two ways by the Agency. First, EPA used
monitoring data to assess point sources to the affected water bodies
and to help determine whether their pollutant discharges could
contribute to ambient exceedances of criteria. Second, the Agency used
the monitoring data to determine whether potentially affected
dischargers would need to make significant alterations to their
operations (or if they could, in fact, meet permit limits for bacteria
that would be associated with the swimmable use). Information
indicating that potentially affected dischargers could generally meet
such revised limits based on the proposed bacteria criteria would
support the presumption that the swimmable use is attainable.
Based upon this approach, EPA evaluated all available data and
information to determine whether the swimmable use is attainable for
the Subject Waterbodies. As a result, EPA is proposing to include
primary contact recreation as a specified designated use for the
Subject Waterbodies. In addition, EPA is proposing to include bacteria
criteria which are protective of primary contact recreation for the
Subject Waterbodies. The proposed bacteria criteria are the same as the
Commonwealth's criteria associated with the Class SB use for fecal
coliform and enterococci, set out at Section 3.2.2 of the PRWQSR. If
Puerto Rico classifies
[[Page 59900]]
these waterbodies with use designations consistent with the CWA and 40
CFR part 131 before a final rulemaking, EPA would expect to approve
those use designations. This would eliminate the need to promulgate
Federal water quality standards for any waterbody so reclassified. EPA
notes that a water's use designation of primary contact recreation
(made solely for CWA purposes) and adoption of water quality criteria
protective of that use are intended to ensure that water quality will
protect swimming if it occurs in such waters. A water's use designation
of primary contact recreation is not an official government sanction
that swimming necessarily is recommended in such waters. There may be
other considerations, such as safety, in deciding whether swimming is
appropriate.
EPA is soliciting comment for information about use attainability,
especially for any Subject Waterbodies with no or limited data.
B. Request for Comment and Data
EPA believes the proposed primary contact recreation designated use
and the bacteria criteria to protect primary contact recreation for the
Subject Waterbodies are appropriate considering the requirements of the
CWA and the information available to EPA at this time. EPA acknowledges
that additional information may exist that may further support or
contradict the attainability of a proposed primary contact recreation
designated use and bacteria criteria in Subject Waterbodies. The Agency
will evaluate any new information that is submitted to EPA during the
public comment period with regard to the primary contact recreation use
and bacteria criteria for the Subject Waterbodies. Based on the
evaluation of new information, EPA will decide whether the primary
contact recreation use and bacteria criteria for the Subject
Waterbodies in today's proposal are appropriate and consistent with the
CWA. To help the Agency ensure that this decision is based on the best
available information, the Agency is soliciting additional information.
The following paragraphs provide guidance on the type of information
EPA considers relevant.
Specifically, EPA seeks information on the Subject Waterbodies that
would help determine: (1) Whether primary contact recreation is or has
been an existing use; (2) whether the designated use and criteria
identified above are being attained or have been attained in the past;
(3) whether natural conditions or features or human caused conditions
prevent the attainment of this use and criteria and whether these
conditions can be remedied or would cause more environmental damage to
correct than to leave in place; or (4) whether controls more stringent
than those required by section 301(b) and 306 of the CWA would be
needed to attain the use, and whether implementation of such controls
would result in substantial and widespread social and economic impact.
Below is a general discussion of the types of data/information
requested by the Agency:
Ambient Monitoring Information: (1) Any ambient water quality data
for the Subject Waterbodies reflecting either natural conditions or
human-caused conditions which cannot be remedied and which prevent the
swimmable use or water quality criteria from being attained; (2) any
available ambient biological data; (3) any chemical and biological
monitoring data that verify improvements to water quality resulting
from treatment plant/facility upgrades and/or expansions; and (4) any
ambient water quality data reflecting nonpoint sources of pollution or
best management practices that have been implemented for nonpoint
source control.
Economic Data: Any information relating to costs and benefits
associated with or incurred as a result of facility or treatment plant
expansions or upgrades, including: (1) Qualitative descriptions or
quantitative estimates of any costs and benefits associated with
facility or treatment plant expansions or upgrades, or associated with
facilities or treatment plants meeting permit limits; (2) any
information on costs to households in the community with facility or
treatment plant expansions or upgrades, whether through an increase in
user fees, an increase in taxes, or a combination of both; (3)
descriptions of the geographical area affected; (4) any changes in
median household income, employment, and overall net debt as a percent
of full market value of taxable property; and (5) any effects of
changes in tax revenues if the private-sector entity were to go out of
business, including changes in income to the community if workers lose
their jobs, and effects on other businesses both directly and
indirectly influenced by the continued operation of the private sector
entity.
IV. Alternative Regulatory Approaches and Implementation Mechanisms
Today's proposal reflects EPA's determination that primary contact
recreation is an appropriate use designation for the Subject
Waterbodies based upon the information currently available to EPA. In
developing a final rule, EPA will consider any data or information
submitted to the Agency during the comment period. However, it is
possible that relevant information for these waterbodies may become
available after completion of this rulemaking. If EPA ultimately
promulgates a Federal ``swimmable'' use designation for these
waterbodies, there are several ways to ensure that the use and its
implementing mechanisms appropriately take into account such future
information.
A. Designating Uses
States have considerable discretion in designating uses. A State
may find that changes in use designations are warranted. EPA will
review any new or revised use designations adopted by the Commonwealth
for these waters to determine if the standards meet the requirements of
the CWA and implementing regulations. If approved, EPA would withdraw
any final Federal water quality standards which may result from today's
proposal.
In adopting recreation uses, the Commonwealth may wish to consider
additional categories of recreation uses. For example, Puerto Rico
could establish more than one category of primary contact recreation to
differentiate between waters where recreation is known to occur and
waters where recreation is not known to occur but may be attained based
on water quality, flow, and depth characteristics.
EPA cautions the Commonwealth that it must conduct use
attainability analyses as described in 40 CFR 131.10(g) when adopting
water quality standards that result in uses not specified in section
101(a)(2) of the CWA or that result in subcategories of uses specified
in section 101(a)(2) that require less stringent criteria (see 40 CFR
131.10(j)).
B. Site-Specific Criteria
The Commonwealth may also develop data indicating a site-specific
water quality criterion for a particular pollutant is appropriate and
take action to adopt such a criterion into their water quality
standards. Site-specific criteria are allowed by regulation and are
subject to EPA review and approval. 40 CFR 131.11(a) requires States to
adopt criteria to protect designated uses based on sound scientific
rationale and containing sufficient parameters or constituents to
protect the designated use. In adopting water quality criteria, States
should establish numerical values based on 304(a) criteria, 304(a)
criteria modified to reflect site-specific conditions or other
scientifically defensible methods. Alternatively, States may establish
narrative criteria
[[Page 59901]]
where numerical criteria cannot be determined or to supplement numeric
criteria (see 40 CFR 131.11(b)). EPA does not have specific guidance
for States and authorized Tribes on developing site-specific criteria
for the protection of recreation uses, but this does not preclude the
Commonwealth from developing its own scientifically defensible methods.
Today's proposed rule does not limit Puerto Rico's ability to modify
the criteria applicable to the Federal swimmable use.
C. Variances
Water quality standards variances are another alternative that can
give a facility a limited period of time to comply with water quality
standards. Puerto Rico has an EPA-approved variance procedure in the
PRWQSR (Article 9). As discussed above, the proposed rule contains a
Federal variance procedure.
EPA believes variances are particularly suitable when the cause of
non-attainment is discharger-specific and/or it appears that the
designated use in question will eventually be attainable. EPA has
approved the granting of water quality standards variances by States
when circumstances might otherwise justify changing a use designation
on grounds of unattainability (i.e., the six circumstances described in
40 CFR 131.10(g)). In contrast to a change in standards that removes a
use designation for a water body, a water quality standards variance is
time-limited and only applies to the discharger to whom it is granted
and only to the pollutant parameter(s) upon which the finding of
unattainability was based. The underlying standard remains in effect
for all other purposes.
For example, if the Commonwealth or a permittee demonstrates that
the primary contact recreation use can not be attained pursuant to 40
CFR 131.10(g) because of high levels of fecal coliforms from a
wastewater treatment facility, but where an upgraded treatment
technology might allow the designated use to be attained, a temporary
variance may be appropriate. The variance would allow the discharger's
permit to include limits based on relaxed criteria for fecal coliform
until the new technology is put in place and it is determined if the
underlying designated use is attainable. The practical effect of such a
variance is to allow a permit to be written using less stringent
criteria, while encouraging ultimate attainment of the underlying
standard. A water quality standards variance provides a mechanism for
ensuring compliance with sections 301(b)(1)(C) and 402(a)(1) of the CWA
while also granting temporary relief to point source dischargers.
While 40 CFR 131.13 allows States to adopt variance procedures for
State-adopted water quality standards, such State procedures may not be
used to grant variances from Federally promulgated standards. EPA
believes that it is appropriate to provide comparable Federal
procedures to address new information that may become available.
Therefore, under EPA's proposal, the Region 2 Regional Administrator
may grant water quality standard variances where a permittee submits
data indicating that the primary contact recreation designated use is
not attainable for any of the reasons in 40 CFR 131.10(g). This
variance procedure will apply to the primary contact recreation use for
the Subject Waterbodies.
Today's proposed rule spells out the process for applying for and
granting such variances. EPA is proposing to use informal adjudication
processes in reviewing and granting variance requests. That process is
contained in 40 CFR 131.40(c)(4) of today's proposed rule. Because
water quality standards variances are revisions to water quality
standards, the proposal provides that the Regional Administrator will
provide public notice of the proposed variance and an opportunity for
public comment. EPA understands that variance related issues may arise
in the context of permit issuance.
The proposed variance procedures require an applicant for a water
quality standards variance to submit a request and supporting
information to the Regional Administrator (or his/her delegatee). The
applicant must demonstrate that the designated use is unattainable for
one of the reasons specified in 40 CFR 131.10(g). A variance may not be
granted if the use could be attained, at a minimum, by implementing
effluent limitations required under sections 301(b) and 306 of the CWA
and reasonable best management practices for nonpoint source control.
Under the proposal, a variance may not exceed five years or the
term of the NPDES permit, whichever is less. A variance may be renewed
if the permittee demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if EPA finds that the
conditions of 40 CFR 131.10(g) are not met or if the permittee did not
comply with the conditions of the original variance.
EPA is soliciting comment on the need for a variance process for
EPA-promulgated use designations, the appropriateness of the particular
procedures proposed today, and whether the proposed variance procedures
are sufficiently detailed.
V. Economic Analysis
This proposed rule will have no direct impact on any entity because
the rule simply establishes water quality standards (e.g., use
designations) which by themselves do not directly impose any costs.
These standards, however, may serve as a basis for development of NPDES
permit limits. In Puerto Rico, EPA Region 2 is the NPDES permitting
authority and retains considerable discretion in implementing
standards. Thus, until EPA Region 2 implements these water quality
standards, there will be no effect on any entity. Nonetheless, EPA
prepared a preliminary analysis to evaluate potential costs to NPDES
dischargers in Puerto Rico associated with future implementation of
EPA's Federal standards.
Any NPDES-permitted facility that discharges to water bodies
affected by this proposed rule could potentially incur costs to comply
with the rule's provisions. The types of affected facilities may
include industrial facilities and publicly owned treatment works
(POTWs). EPA did not consider the potential costs for nonpoint sources,
such as agricultural and forestry-related nonpoint sources, although
EPA recognizes that the Commonwealth may decide to impose controls on
these sources to achieve water quality standards. As a technical
matter, nonpoint source discharges are difficult to model and evaluate
for potential costs because they are intermittent, highly variable, and
occur under different hydrologic or climatic conditions than continuous
discharges from industrial and municipal facilities, which are
evaluated under critical low flow or drought conditions. Thus, the
evaluation of nonpoint sources and their effects on the environment is
highly site-specific and data-sensitive. In addition, EPA did not
address the potential monetary benefits of this proposed rule for
Puerto Rico.
A. Identifying Affected Facilities
According to EPA's Permit Compliance System (PCS), there are 593
NPDES-permitted facilities in Puerto Rico. Eighty-four of the
facilities are classified as major dischargers, and 509 are minor or
general permit dischargers. However, EPA did not include general permit
facilities in its analysis because data for such facilities are
extremely limited and flows are usually negligible. Furthermore, EPA
could not determine if any of these facilities actually
[[Page 59902]]
discharge to the affected water bodies because location information is
not available in EPA's PCS database. Therefore, EPA's analysis includes
a universe of 285 permitted facilities (84 majors and 201 minors).
To identify facilities potentially affected by the proposed rule,
EPA assumed that only facilities that have the potential to affect
(i.e., cause an increase in fecal coliform levels) the Subject
Waterbodies for which EPA is designating a new primary contact
recreation use may be affected by the proposed rule. EPA identified
these facilities by overlaying PCS facilities with the potentially
affected waters and their tributaries currently designated for a Class
SC use using GIS software. EPA assumed that only wastewater treatment
plants or military facilities with similar effluent characteristics
(i.e., facilities having the potential to discharge fecal coliforms)
would potentially be affected by the proposed rule. Table 1 summarizes
the universe of potentially affected facilities by type and category.
Table 1.--Estimated Number of Facilities Potentially Affected by the
Proposed Rule
------------------------------------------------------------------------
Number of facilities
Category --------------------------
Major Minor Total
------------------------------------------------------------------------
Military..................................... 1 2 3
Municipal.................................... 19 10 29
----------
Total.................................... 20 12 32
------------------------------------------------------------------------
B. Method for Estimating Potential Compliance Costs
EPA identified a total of 32 facilities (20 majors and 12 minors)
that may be potentially affected by the proposed primary contact
designated use. EPA evaluated a sample of facilities based on
discharger type and category from this group for potential cost impacts
associated with the proposed rule. For these sample facilities, EPA
evaluated available effluent data from its PCS database to determine
the potential controls that may ultimately be needed as a result of the
proposed rule.
EPA estimated on a case-by-case basis the most cost-effective
control strategy for each sample facility to achieve compliance with
the proposed criteria. EPA assumed that projected effluent limits for
fecal coliform would be applied as criteria end-of-pipe (a monthly
geometric mean of 200 colonies/100 mL and not more than 20% of samples
exceeding 400 colonies/100 mL) because the facilities' current permits
apply the current criteria in the same manner. EPA assumed that a
sample facility would incur costs if average monthly effluent
concentrations (or existing permit limit, whichever is smaller)
indicate that the facility would not be in compliance with the most
stringent criterion.
EPA evaluated each facility's potential compliance with projected
permit limits based on available monthly average fecal coliform values
from the Agency's PCS database. If monthly average values are not
available, EPA evaluated potential compliance based on maximum monthly
values. EPA determined potential compliance with the projected limit
for each sample facility based on the relative magnitude of the maximum
average monthly values, the pattern of occurrence of such values (i.e.,
when maximum values occurred), and current treatment performance
characteristics (e.g., BOD and TSS concentrations, compliance with
current permit). For facilities exceeding their current limits, EPA
assumed that facilities would install the necessary controls for
compliance with current standards, and would incur costs for additional
treatment process optimization (e.g., increase chlorine dose, improve
mixing conditions, increase contact time) for compliance with the
projected limit. For facilities that are in compliance with their
current permit limits but would not comply with the projected limit,
EPA also assumed that process optimization of their chlorination
process may be necessary for compliance with the projected limit.
C. Results
EPA estimated the potential costs associated with the proposed
primary contact designated use for the Subject Waterbodies. Based on
evaluation of the sample of potentially affected facilities, EPA
estimated that the potential total annual cost associated with the
proposed rule is $2.7 million.
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866, (58 FR 51735 (October 4, 1993)) the
Agency must determine whether the 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. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
It does not include any information collection, reporting, or
recordkeeping requirements.
Burden means the total time, effort or financial resources expended
by persons to generate, maintain, retain, or disclose or provide
information to or for a Federal agency. This includes the time needed
to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
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. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq., generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant
[[Page 59903]]
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 proposed rule on
small entities, small entity is defined as: (1) A small business
according to RFA default definitions for small business (based on SBA
size standards); (2) a small governmental jurisdiction that is a
government of a city, county, town, school district or special district
with a population of less than 50,000; and (3) a small organization
that is any not-for-profit enterprise which is independently owned and
operated and is not dominant in its field.
After considering these economic impacts of today's proposed rule
on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
This proposed rule will not impose any requirements on small entities.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rule's requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
Today's proposed rule establishes no requirements applicable to small
entities, and so is not susceptible to regulatory flexibility analysis
as prescribed by the RFA. (``[N]o [regulatory flexibility]
analysis is
necessary when an agency determines that the rule will not have a
significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule,'' United Distribution
at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C.
Cir. 1985) (emphasis added by United Distribution court).)
Under the CWA water quality standards program, States must adopt
water quality standards for their waters and must submit those water
quality standards to EPA for approval; if the Agency disapproves a
State standard and the State does not adopt appropriate revisions to
address EPA's disapproval, EPA must promulgate standards consistent
with the statutory requirements. EPA also has the authority to
promulgate criteria or standards in any case where the Administrator
determines that a new or revised standard is necessary to meet the
requirements of the Act. These State standards (or EPA-promulgated
standards) are implemented through various water quality control
programs including the NPDES program, which limits discharges to
navigable waters except in compliance with an NPDES permit. The CWA
requires that all NPDES permits include any limits on discharges that
are necessary to meet applicable water quality standards.
Thus, under the CWA, EPA's promulgation of water quality standards
establishes standards that the State generally implements through the
NPDES permit process. In this case, however, EPA Region 2 is the NPDES
permitting authority in Puerto Rico. As such, EPA Region 2 has
discretion in developing discharge limits as needed to meet the
standards. While Region 2's implementation of Federally promulgated
water quality standards may result in new or revised discharge limits
being placed on small entities, the standards themselves do not apply
to any discharger, including small entities.
Today's proposed rule, as explained earlier, does not itself
establish any requirements that are applicable to small entities. As a
result of this action, EPA Region 2 will need to ensure that permits it
issues include any limitations on discharges necessary to comply with
the standards established in the final rule. In doing so, the Region
will have a number of choices associated with permit writing. While the
implementation of the rule may ultimately result in some new or revised
permit conditions for some dischargers, EPA's action today does not
impose any of these as yet unknown requirements on small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
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. The definition of ``State'' for the
purposes of UMRA includes ``a territory or possession of the United
States.'' Under section 202 of the UMRA, EPA generally must prepare a
written statement, including a cost-benefit analysis, for proposed and
final rules with ``Federal mandates'' that may result in expenditures
to State, local, and Tribal governments, in the aggregate, or to the
private sector, of $100 million or more in any one year. Before
promulgating an EPA rule for which a written statement is needed,
section 205 of the UMRA generally requires EPA to identify and consider
a reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why 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.
Today's proposed rule contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local or
Tribal governments or the private sector. The proposed rule imposes no
enforceable duty on the Commonwealth of Puerto Rico, or any other
State, local or Tribal governments or the private sector; rather, this
rule proposes a designated use for primary contact recreation and
associated bacteria criteria for the Subject Waterbodies, which, when
combined with Commonwealth adopted water quality criteria, constitute
water quality standards for those waterbodies. The Commonwealth and EPA
may use these resulting water quality standards in implementing its
water quality control programs. Today's proposed rule does not regulate
or affect any entity and, therefore, is not subject to the requirements
of sections 202 and 205 of the UMRA.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As stated, the proposed rule imposes no enforceable
requirements on any party, including small governments. Thus, this
proposed rule is not subject to the requirements of section 203 of the
UMRA.
E. Executive Order 13132: 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
[[Page 59904]]
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 proposed rule does not have federalism implications. It will
not have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The proposed rule would not
affect the nature of the relationship between EPA and States generally,
for the rule only applies to waterbodies in Puerto Rico (which is
considered a ``State'' for purposes of the water quality standards
program). Further, the proposed rule would not substantially affect the
relationship of EPA and the Commonwealth of Puerto Rico, or the
distribution of power or responsibilities between EPA and the various
levels of government. The proposed rule would not alter the
Commonwealth's considerable discretion in implementing these water
quality standards. Further, this proposed rule would not preclude
Puerto Rico from adopting water quality standards that meet the
requirements of the CWA. Thus, Executive Order 13132 does not apply to
this proposed rule.
Although Executive Order 13132 does not apply to this rule, EPA did
consult with representatives of the Commonwealth in developing this
rule. Prior to this proposed rulemaking action, EPA had numerous phone
calls, meetings and exchanges of written correspondence with EQB to
discuss EPA's concerns with the Commonwealth's water quality standards,
possible remedies for addressing the inadequate sections of their water
quality standards, the use designations and criteria in today's
proposal, and the Federal rulemaking process. For a more detailed
description of EPA's interaction with the Commonwealth on this proposed
rulemaking, refer to section II.C.2. EPA will continue to work with the
Commonwealth before finalizing these water quality standards for Puerto
Rico. In the spirit of Executive Order 13132, and consistent with EPA
policy to promote communications between EPA and State and local
governments, EPA specifically solicits comment on this proposed rule
from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, November 6, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' ``Policies that have tribal
implications'' is defined in the Executive Order to include regulations
that have ``substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and the Indian tribes,
or on the distribution of power and responsibilities between the
Federal government and Indian tribes.''
This proposed rule does not have tribal implications. It will not
have substantial direct effects on tribal governments, on the
relationship between the Federal government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
government and Indian tribes, as specified in Executive Order 13175.
There are no Indian Tribes in Puerto Rico, where this rule would apply.
Thus, Executive Order 13175 does not apply to this rule.
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 proposed rule is not subject to the Executive Order because it
is not economically significant as defined in Executive Order 12866.
Further, it does not concern an environmental health or safety risk
that EPA has reason to believe may have a disproportionate effect on
children. This proposed rule, if promulgated, would establish water
quality standards to meet the requirements of the CWA and the
implementing Federal regulations.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
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 OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
EPA welcomes comment on this aspect of the proposed rulemaking,
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such
standards should be used in this regulation.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: October 14, 2003.
Marianne Lamont Horinko,
Acting Administrator.
For the reasons set forth in the preamble, EPA proposes to amend 40
CFR part 131 as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
2. Section 131.40 is added to read as follows:
[[Page 59905]]
Sec. 131.40 Puerto Rico.
(a) Use designations for marine waters. In addition to the
Commonwealth's adopted use designations, the following waterbodies in
Puerto Rico have the beneficial use designated in this paragraph (a)
within the bays specified below, and within the Commonwealth's
territorial seas, as defined in section 502(8) of the Clean Water Act,
and 33 CFR 2.05-5, except such waters classified by the Commonwealth as
SB.
----------------------------------------------------------------------------------------
Waterbody segment From To Designated use
----------------------------------------------------------------------------------------
Coastal Waters............. 500m offshore....... 3 miles offshore... Primary Contact.
Recreation.
Guayanilla & Tallaboa Bays. Cayo Parguera....... Punta Verraco...... Primary Contact.
Recreation.
Mayaguez Bay............... Punta Guanajibo..... Punta Algarrobo.... Primary Contact.
Recreation.
Ponce Port................. Punta Carenero...... Punta Cuchara...... Primary Contact.
Recreation.
San Juan Port.............. Mouth of R[iacute]o Punta El Morro..... Primary Contact.
Bayam[oacute]n. Recreation.
Yabucoa Port............... N/A................. N/A................ Primary Contact.
Recreation.
----------------------------------------------------------------------------------------
(b) Criteria that apply to Puerto Rico's marine waters. In addition
to all other Commonwealth criteria, the following criteria for bacteria
apply to the waterbodies in paragraph (a) of this section:
Bacteria: The fecal coliform geometric mean of a series of
representative samples (at least five samples) of the waters taken
sequentially shall not exceed 200 colonies/100 ml, and not more than 20
percent of the samples shall exceed 400 colonies/100 ml. The
enterococci density in terms of geometric mean of at least five
representative samples taken sequentially shall not exceed 35/100 ml.
No single sample should exceed the upper confidence limit of 75% using
0.7 as the log standard deviation until sufficient site data exist to
establish a site-specific log standard deviation.
(c) Water quality standard variances. (1) The Regional
Administrator, EPA Region 2, is authorized to grant variances from the
water quality standards in paragraphs (a) and (b) of this section where
the requirements of this paragraph (c) are met. A water quality
standard variance applies only to the permittee requesting the variance
and only to the pollutant or pollutants specified in the variance; the
underlying water quality standard otherwise remains in effect.
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by implementing effluent limitations
required under sections 301(b) and 306 of the CWA and by the permittee
implementing reasonable best management practices for nonpoint source
control; or
(ii) The variance would likely jeopardize the continued existence
of any threatened or endangered species listed under section 4 of the
Endangered Species Act or result in the destruction or adverse
modification of such species' critical habitat.
(3) A water quality standards variance may be granted if the
applicant demonstrates to EPA that attaining the water quality standard
is not feasible because:
(i) Naturally occurring pollutant concentrations prevent the
attainment of the use;
(ii) Natural, ephemeral, intermittent or low flow conditions or
water levels prevent the attainment of the use, unless these conditions
may be compensated for by the discharge of sufficient volume of
effluent discharges without violating Commonwealth water conservation
requirements to enable uses to be met;
(iii) Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place;
(iv) Dams, diversions or other types of hydrologic modifications
preclude the attainment of the use, and it is not feasible to restore
the water body to its original condition or to operate such
modification in a way which would result in the attainment of the use;
(v) Physical conditions related to the natural features of the
water body, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like unrelated to water quality, preclude
attainment of aquatic life protection uses; or
(vi) Controls more stringent than those required by sections 301(b)
and 306 of the CWA would result in substantial and widespread economic
and social impact.
(4) Procedures. An applicant for a water quality standards variance
shall submit a request to the Regional Administrator of EPA Region 2.
The application shall include all relevant information showing that the
requirements for a variance have been met. The applicant must
demonstrate that the designated use is unattainable for one of the
reasons specified in paragraph (c)(3) of this section. If the Regional
Administrator preliminarily determines that grounds exist for granting
a variance, he/she shall provide public notice of the proposed variance
and provide an opportunity for public comment. Any activities required
as a condition of the Regional Administrator's granting of a variance
shall be included as conditions of the NPDES permit for the applicant.
These terms and conditions shall be incorporated into the applicant's
NPDES permit through the permit reissuance process or through a
modification of the permit pursuant to the applicable permit
modification provisions of Puerto Rico's NPDES program.
(5) A variance may not exceed five years or the term of the NPDES
permit, whichever is less. A variance may be renewed if the applicant
reapplies and demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if the applicant did
not comply with the conditions of the original variance, or otherwise
does not meet the requirements of this section.
[FR Doc. 03-26409 Filed 10-17-03; 8:45 am]
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