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Notice

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

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice.

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.

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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.

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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.Start Printed 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 Start Printed Page 26618to 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.

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David A. Ullrich,

Acting Regional Administrator, Region 5.

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[FR Doc. 03-12356 Filed 5-15-03; 8:45 am]

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