[Federal Register: May 16, 2003 (Volume 68, Number 95)]
[Notices]
[Page 26616-26618]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16my03-91]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7498-9]
Notice of Approval of Submissions To Prohibit Mixing Zones for
Bioaccumulative Chemicals of Concern Pursuant to Section 118 of the
Clean Water Act and the Water Quality Guidance for the Great Lakes
System for the States of Illinois, Indiana, Michigan, Minnesota, Ohio
and Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: Notice is hereby given of approval of submissions by the
States of Illinois, Indiana, Michigan, Minnesota, Ohio and Wisconsin to
prohibit mixing zones for bioaccumulative chemicals of concern (BCCs)
in the Great Lakes System pursuant to section 118(c) of the Clean Water
Act and the Water Quality Guidance for the Great Lakes System, as
amended.
DATES: EPA's approval is effective on May 16, 2003.
FOR FURTHER INFORMATION CONTACT: Mery Jackson-Willis, U.S. EPA, Region
5, 77 West Jackson Blvd., Chicago, IL 60604, or telephone her at (312)
353-3717. Copies of materials considered by EPA in its decision are
available for review by appointment at U.S. EPA Region 5, 77 West
Jackson Blvd, Chicago, IL 60604. Appointments may be made by calling
Ms. Jackson-Willis.
SUPPLEMENTARY INFORMATION: On March 23, 1995, EPA published the Final
Water Quality Guidance for the Great Lakes System (Guidance). See 60 FR
15366. The 1995 Guidance established minimum water quality standards,
antidegradation policies, and implementation procedures for the waters
of the Great Lakes System in the States of Illinois, Indiana, Michigan,
Minnesota, New York, Ohio, Pennsylvania and Wisconsin. Specifically,
the 1995 Guidance specified numeric criteria for selected pollutants to
protect aquatic life, wildlife and human health within the Great Lakes
System and provided methodologies to derive numeric criteria for
additional pollutants discharged to these waters. The 1995 Guidance
also included minimum implementation procedures and an antidegradation
policy.
The 1995 Guidance, which was codified at 40 CFR part 132, required
the Great Lakes States to adopt and submit to EPA for approval water
quality criteria, methodologies, policies and procedures that are
consistent with the Guidance. 40 CFR 132.4 & 132.5. EPA is required to
approve of the State's submission within 90 days or notify the State
that EPA has determined that all or part of the submission is
inconsistent with the Clean Water Act (CWA) or the Guidance and
identify any necessary changes to obtain EPA approval. If the State
fails to make the necessary changes within 90 days after the
notification, EPA must publish a notice in the Federal Register
identifying the approved and disapproved elements of the submission and
a final rule identifying the provisions of part 132 that shall apply
for discharges within the State.
[[Page 26617]]
Soon after being published, the Guidance was challenged in the U.S.
Court of Appeals for the District of Columbia Circuit. On June 6, 1997,
the Court issued a decision upholding virtually all of the provisions
contained in the 1995 Guidance (American Iron and Steel Institute, et
al. v. EPA, 115 F.3d 979 (D.C. Cir. 1997)); however, the Court vacated
the provisions of the Guidance that would have eliminated mixing zones
for BCCs (115 F.3d at 985). The Court held that EPA had ``failed to
address whether the measure is cost-justified,'' and remanded the
provision to EPA for an opportunity to address this issue (115 F.3d at
997). In response to the Court's remand, EPA reexamined the factual
record, including its cost analyses, and published the Proposal to
Amend the Final Water Quality Guidance for the Great Lakes System to
Prohibit Mixing Zones for Bioaccumulative Chemicals of Concern in the
Federal Register on October 4, 1999 (64 FR 53632). EPA received
numerous comments, data, and information from commenters in response to
the proposal.
After reviewing and analyzing the information in the rulemaking
record, including those comments, on November 13, 2000, EPA published
the final rule amending the Final Water Quality Guidance for the Great
Lakes System to Prohibit Mixing Zones for Bioaccumulative Chemicals of
Concern, to be codified in appendix F, procedure 3.C of 40 CFR part
132. As amended, the Guidance requires that States adopt mixing zone
provisions that prohibit mixing zones for new discharges of BCCs
effective immediately upon adoption of the provision by the State, and
to prohibit mixing zones for existing discharges of BCCs after November
15, 2010, except where a mixing zone is determined by the State to be
necessary to support water conservation measures and overall load
reductions of BCCs or where a mixing zone is determined by the State to
be necessary for technical or economic reasons. Under the amended
Guidance, States were given two years to adopt and submit revised water
quality standards conforming with the amended Guidance.
EPA has conducted its review of the States' submissions to prohibit
mixing zones for BCCs in accordance with the requirements of section
118(c)(2) of the CWA and 40 CFR part 132. Section 118 requires that
States adopt policies, standards and procedures that are ``consistent
with'' the Guidance. EPA has interpreted the statutory term
``consistent with'' to mean ``as protective as'' the corresponding
requirements of the Guidance. Thus, the Guidance gives States the
flexibility to adopt requirements that are not the same as the
Guidance, provided that the State's provisions afford at least as
stringent a level of environmental protection as that provided by the
corresponding provision of the Guidance. In making its evaluation, EPA
has considered the language of each State's standards, policies and
procedures, as well as any additional information provided by the State
clarifying how it interprets or will implement its provisions.
In this proceeding, EPA has reviewed the States' submissions to
determine their consistency only with respect to appendix F, procedure
3.C of 40 CFR part 132. EPA has not reopened part 132 in any respect,
and today's action does not affect, alter or amend in any way the
substantive provisions of part 132. To the extent any members of the
public commented during this proceeding that any provision of part 132
is unjustified as a matter of law, science or policy, those comments
are outside the scope of this proceeding.
Today's notice identifies the elements of the States' Great Lakes
BCC mixing zone provisions that EPA is approving today. Additional
explanations of EPA's review of and conclusions regarding the States'
submissions on this issue are contained in the administrative record
for today's actions in documents prepared for each State.
1. The State of Illinois
Illinois' regulations for mixing zones for BCCs are found at Title
35: Environmental Protection, Subtitle C: Water Pollution, Chapter I:
Pollution Control Board, Part 302: Water Quality Standards, Subpart E:
Lake Michigan Basin Water Quality Standards, Section 302.530:
Supplemental Mixing Provisions for Bioaccumulative Chemicals of
Concern. Illinois adopted its BCC mixing zone provisions at the same
time it adopted its other Great Lakes water quality standards.
Illinois' supplemental mixing provisions for BCCs at 302.530 prohibit
mixing zones for new discharges of BCCs commencing on or after December
24, 1997, prohibit mixing zones for existing discharges after March 23,
2007 except where a continued mixing zone is necessary for water
conservation that will result in an overall reduction in BCC mass
loadings to the Lake Michigan Basin or where a mixing zone is
determined to be necessary based on technical or economic grounds. EPA
reviewed Illinois' rules at 302.503 and determined that they are
consistent with the requirements of the amended Guidance. EPA therefore
approves of Illinois' rules at 302.530.
2. The State of Indiana
Indiana's mixing zone provisions for BCCs are found at 327 IAC 5-2-
11.4(b)(1). Indiana's rules prohibit mixing zones for BCCs for new
discharges of BCCs and existing and new discharges of BCCs to the open
waters of Lake Michigan. Mixing zones for existing discharges of BCCs
to waters other than the open waters of Lake Michigan will be
prohibited beginning January 1, 2004 with the exceptions allowed under
the amended Guidance for water conservation measures and technical and
economic considerations. Indiana adopted its rules prohibiting mixing
zones at the same time it adopted its original Great Lakes rules. EPA
reviewed Indiana's rules at 327 IAC 5-2-11.4(b)(1) and determined that
they are consistent with the requirements of the amended Guidance. EPA
therefore approves of Indiana's rules at 327 IAC 5-2-11.4(b)(1).
3. The State of Michigan
Michigan's regulations for mixing zones for BCCs are found at R
323.1082(6). Michigan adopted its BCC mixing zone provisions at the
same time it adopted its other Great Lakes water quality standards.
Michigan's mixing provisions for BCCs at R 323.1082(6) prohibit mixing
zones for new discharges of BCCs, prohibit mixing zones for existing
discharges after March 23, 2007 except where a continued mixing zone is
necessary for water conservation that will result in an overall
reduction in BCC mass loadings or where a mixing zone is determined to
be necessary based on technical or economic grounds. EPA reviewed
Michigan's rules at R 323.1082(6) and determined that they are
consistent with the requirements of the amended Guidance. EPA therefore
approves of Michigan's rules at R 323.1082(6).
4. The State of Minnesota
Minnesota's regulations for mixing zones for BCCs are found at
7052.0210, subpart 3, of Minnesota's administrative code. Minnesota
adopted its BCC mixing zone provisions at the same time it adopted its
other Great Lakes water quality standards. Minnesota's mixing
provisions for BCCs at 7052.0210, subpart 3 prohibit mixing zones for
new discharges of BCCs as of March 9, 1998 and for existing discharges
after March 23, 2007, except where a continued mixing zone is necessary
for water conservation that will result in an overall reduction in BCC
mass loadings or where a mixing zone is determined
[[Page 26618]]
to be necessary based on technical or economic grounds. EPA reviewed
Minnesota's rules at 7052.0210, subpart 3 and determined that they are
consistent with the requirements of the amended Guidance. EPA therefore
approves of Minnesota's rules at 7052.0210, subpart 3.
5. The State of Ohio
Ohio's regulations for mixing zones for BCCs are found at OAC 3745-
2-05 and 3745-2-08. Ohio's rules for mixing zones for BCCs were adopted
on August 30, 2002, and became effective on December 30, 2002. Ohio's
mixing provisions for BCCs at OAC 3745-2-05 prohibit mixing zones for
new discharges of BCCs as of the effective date of the rule, December
30, 2002, and for existing discharges after November 15, 2010, except
where a continued mixing zone is necessary for water conservation that
will result in an overall reduction in BCC mass loadings or where a
mixing zone is determined to be necessary based on technical or
economic grounds. EPA reviewed Ohio's rules at OAC 3745-2-05 and 3745-
2-08 and determined that they are consistent with the requirements of
the amended Guidance. EPA therefore approves of Ohio's rules at OAC
3745-2-05 and 3745-2-08.
6. The State of Wisconsin
Wisconsin's regulations for mixing zones for BCCs are found at NR
106.06(2). Wisconsin's rules for mixing zones for BCCs were adopted at
the same time as Wisconsin adopted its other Great Lakes rules.
Wisconsin's mixing provisions for BCCs at NR 106.06(2) prohibit mixing
zones for new discharges of BCCs as of March 23, 1997. Wisconsin's
rules do not address mixing zones for BCCs for existing discharges,
except to state in a note included within Wisconsin's rules at NR
106.06(2) that Wisconsin is aware of the requirement to prohibit mixing
zones for BCCs for existing discharges and will adopt rules prohibiting
mixing zones for BCCs for existing discharges prior to the effective
date of the prohibition. EPA reviewed Wisconsin's rules at NR 106.06(2)
and determined that they are consistent with the requirements of the
amended Guidance that have immediate force and effect. EPA therefore
approves of Wisconsin's rules at NR 106.06(2). EPA will review the
rules to be developed by Wisconsin to implement the mixing zone
prohibition for BCCs for existing Great Lakes dischargers when they are
developed and submitted to EPA. If Wisconsin fails to adopt and submit
to EPA rules to ensure that the prohibition takes effect in Wisconsin
on or before November 15, 2010, EPA will take the necessary actions to
ensure that mixing zones are prohibited for existing discharges of BCCs
for waters of the Great Lakes System in the State of Wisconsin by that
date.
David A. Ullrich,
Acting Regional Administrator, Region 5.
[FR Doc. 03-12356 Filed 5-15-03; 8:45 am]
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