65FR26550 Community XL (XLC) Site-Specific Rulemaking for Steele County, Minnesota; Proposed Rule, Part 1/2
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Posting-number: Volume 65, Issue 89, Page 26550, Part 1
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[Federal Register: May 8, 2000 (Volume 65, Number 89)]
[Proposed Rules]
[Page 26550-26560]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my00-15]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 403
[FRL -6602-5]
Community XL (XLC) Site-Specific Rulemaking for Steele County,
Minnesota; Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is proposing to
implement a project under the Project XLC program for certain
facilities in Steele County, Minnesota. The terms of the project are
defined in a draft Final Project Agreement (FPA) which was made
available for public review and comment through a Federal Register
notice on December 29, 1999 (64 FR 73047). In addition, EPA is
proposing a site-specific rule, applicable only to the Steele County
sponsors who are Participating Industrial Users, to facilitate
implementation of the project. By this document, EPA solicits comment
on the proposed rule. This proposed site-specific rule is intended to
provide regulatory changes under the Clean Water Act (CWA or the Act)
to implement the Community XL project, which will result in superior
environmental performance.
The proposed site-specific rule would change some of the CWA
requirements which apply to the sponsors who are Participating
Industrial Users to promote a reduction in the discharge of four
priority metals and certain conventional pollutants, a reduction in
water usage, and the development of an environmental management system.
An incentive-based monitoring approach would be implemented, such that
as discharge reduction goals are met, monitoring frequency could be
reduced, mass-based limits would replace certain concentration limits,
and an alternative Significant Noncompliance (SNC) publication approach
would be tested. Monitoring reductions for pollutants determined not to
be present in an industry's wastestream would also be authorized.
DATES: Public Comments: All public comments on the proposed rule must
be received on or before May 30, 2000.
ADDRESSES: Comments: Written comments on the proposed rule should be
mailed to: Ms. Abeer Hashem, U.S. Environmental Protection Agency,
Region V, WC-15J, 77 West Jackson Boulevard, Chicago, IL 60604-3507.
Please send an original and two copies of all comments, and refer to
Docket for the Steele County Site-Specific Rulemaking.
Viewing Project Materials: A docket containing the proposed rule,
draft Final Project Agreement, supporting materials, and public
comments is available for public inspection and copying at U.S. EPA,
Region V, Water Division, Room Number 15046, 77 West Jackson Boulevard,
Chicago, IL 60604-3507. The Office is open from 9 a.m. to 4 p.m. Monday
through Friday, excluding federal holidays. The public
[[Page 26551]]
is encouraged to phone in advance to review docket materials.
Appointments can be scheduled by phoning Abeer Hashem at (312) 886-
1331. Refer to the Docket for the Steele County Site-Specific
Rulemaking. The public may copy a maximum of 100 pages at no charge.
Additional copies cost 15 cents per page. Project materials are also
available for review for today's action on the World Wide Web at:
http://www.epa.gov/projectxl/.
Supporting materials are also available for inspection and copying
at U.S. EPA, Headquarters, 401 M Street SW, Room 445 West Tower,
Washington, DC 20460 during normal business hours. Persons wishing to
view the materials at the Washington, DC location are encouraged to
contact Ms. Kristina Heinemann in advance by telephoning (202) 260-
5355. In addition supporting materials are available at the Owatonna,
MN Public Library, 105 Elm Avenue North, Owatonna, MN 55060. The phone
number for the library is 507-444-2460, TDD 507-444-2480.
FOR FURTHER INFORMATION CONTACT: Ms. Abeer Hashem or Mr. Matthew
Gluckman, U.S. Environmental Protection Agency, Region V, Water
Division, WC-15J or WN-16J, 77 West Jackson Boulevard, Chicago, IL
60604-3507. Ms. Hashem can be reached at (312) 886-1331 and Mr.
Gluckman can be reached at (312) 886-6089. Further information on
today's action may also be obtained on the world wide web at: http://
www.epa.gov/projectxl/.
SUPPLEMENTARY INFORMATION: This proposed site-specific rule sets forth
the mechanism through which the sponsors would attempt to reach
discharge reduction goals for chromium, copper, nickel, zinc, reach
water use reduction goals, and commit to arrange and participate in
training for the development of an Environmental Management System
(EMS), as outlined in the Steele County Project XLC draft FPA (the
document that embodies the parties' intent to implement this project).
Today's proposal would facilitate implementation of the draft FPA that
has been developed by the Steele County Project Sponsors, EPA, the
Steele County Community Advisory Committee (``ACAC''), the Minnesota
Pollution Control Agency (``AMPCA''), the Owatonna Waste Water
Treatment Facility (OWWTF), the Blooming Prairie Waste Water Treatment
Facility (BPWWTF), and other stakeholders. The FPA is available for
review in the docket for today's action and on the world wide web at
http://www.epa.gov/projectxl/.
The draft FPA addresses the nine Project XLC criteria, and the
expectation of EPA that this XLC project will meet those criteria.
Those criteria are: (1) Environmental results superior to what would be
achieved through compliance with current and reasonably anticipated
future regulations; (2) economic opportunity; (3) stakeholder
involvement, support and capacity for community participation; (4) test
of innovative, multi-media, pollution prevention strategies for
achieving environmental results; (5) approaches that could be evaluated
for future broader application (transferability); (6) technical and
administrative feasibility; (7) mechanisms for monitoring, reporting,
and evaluation; (8) consistency with Executive Order 12898 on
Environmental Justice (avoidance of shifting of risk burden); and (9)
community planning. The draft FPA specifically addresses the manner in
which the project is expected to produce superior environmental
benefits.
EPA is proposing today's rule to implement the provisions of this
Project XLC initiative that require regulatory changes. However,
Minnesota has had an approved state National Pollutant Discharge
Elimination System (NPDES) program since June 30, 1974, and an approved
State pretreatment program since July 16, 1979. Therefore, the
requirements outlined in today's proposed rule would not take effect
until Minnesota revises the Owatonna pretreatment program as
incorporated in its NPDES permit. EPA would not be the primary
regulatory agency responsible for implementing the requirements of this
rule. In addition, for the sake of simplicity, the remainder of this
preamble refers to the effects of this rule, although it would be the
corresponding State and local law and corresponding NPDES and
Industrial User permits that would actually govern this XL project.
Outline of Today's Document
The information presented in this preamble is organized as follows:
I. Authority
II. Background
A. Overview of Project XL and XLC
B. Overview of the Steele County XLC Project
1. Description of the Steele County Community XL Project
2. What Are the Environmental Benefits of the Project?
3. What Are the Economic Benefits and Paperwork Reduction
Deriving From the Project?
4. Stakeholder Involvement
5. What Is the Project Duration and Completion Date?
6. How Will EPA Ensure That Only Appropriate Sponsors Continue
To Receive Flexibility Under This Proposal?
7. How May the Project Be Terminated?
III. Rule Description
A. Clean Water Act Requirements, Pre-Treatment Streamlining
Proposal and Summary of Regulatory Requirements for the Steele
County XL Project
IV. Additional Information
A. How Does This Rule Comply With Executive Order 12866?
B. Is a Regulatory Flexibility Analysis Required?
C. Is an Information Collection Request Required for This Rule
Under the Paperwork Reduction Act?
D. Does This Rule Trigger the Requirements of the Unfunded
Mandates Reform Act?
E. How Does This Rule Comply With Executive Order 13045:
Protection of Children From Environmental Health Risks and Safety
Risks?
F. How Does This Rule Comply With Executive Order 13132 on
Federalism?
G. How Does This Rule Comply With Executive Order 13084:
Consultation and Coordination With Indian Tribal Governments?
H. Does This Rule Comply with National Technology Transfer and
Advancement Act of 1995 (``ANTTAA'')?
I. Authority
This regulation is being proposed under the authority of sections
307, 308, and 501 of the CWA, 33 U.S.C. 1317, 1318, 1361.
II. Background
A. Overview of Project XL and XLC
Each Project XL pilot--``eXcellence and Leadership'' is described
in a Final Project Agreement (FPA). For this Project XL for Communities
(XLC), the draft FPA sets forth the intentions of EPA, the Minnesota
Pollution Control Agency (MPCA) and the Steele County Community with
regard to a project developed under Project XLC, an EPA initiative to
allow regulated entities to achieve better environmental results using
common sense, cost effective strategies. This regulation will enable
implementation of the project.
Project XL was announced on March 16, 1995, as a central part of
the National Performance Review and the EPA's effort to reinvent
environmental protection. See 60 FR 27282 (May 23, 1995) and 60 FR
55569 (November 1, 1995). Project XL provides a limited number of
private and public regulated entities an opportunity to develop their
own pilot projects to provide regulatory flexibility that will result
in environmental protection that is superior to that which would be
achieved through compliance with current and future regulations. These
efforts are crucial to EPA's ability to test new strategies that reduce
the regulatory burden and promote economic growth
[[Page 26552]]
while achieving better environmental and public health protection. EPA
intends to evaluate the results of this and other XL projects to
determine which specific elements of the project(s), if any, should be
more broadly applied to other regulated entities for the benefit of
both the economy and the environment.
Under Project XL, participants in four categories--facilities,
industry sectors, governmental agencies and communities--are offered
the flexibility to develop common sense, cost-effective strategies that
will replace or modify specific regulatory requirements on the
condition that they produce and demonstrate superior environmental
performance. Project XLC, excellence and leadership for communities,
was developed to focus on communities and local governments or regional
organizations that are interested in creating an XL project. Project
XLC encourages potential sponsors to come forward with new approaches
to demonstrate community-designed and directed strategies for achieving
greater environmental quality consistent with community economic goals.
To participate in Project XLC, applicants must develop alternative
pollution reduction strategies pursuant to nine criteria: superior
environmental results; stakeholder involvement, support, and capacity
for community participation; economic opportunity; test of an
innovative multi-media strategy; transferability; feasibility;
community planning; identification of monitoring, reporting and
evaluation methods; and equitable distribution of environmental risks.
Projects must have full support of affected federal, state and tribal
agencies to be selected.
For more information about the XL and XLC criteria, readers should
refer to the three descriptive documents published in the Federal
Register (60 FR 27282, May 23, 1995; 60 FR 55569, November 1, 1995; and
62 FR 19872, April 23, 1997). For further discussion as to how the
Steele County XL Communities project addresses the XLC criteria,
readers should refer to the draft Final Project Agreement and fact
sheet that are available from the docket for this action (see ADDRESSES
section of today's preamble).
Project XL is intended to allow the EPA to experiment with untried,
potentially promising regulatory approaches, both to assess whether
they provide benefits at the specific facility affected, and whether
they should be considered for wider application. Such pilot projects
allow the EPA to proceed more quickly than would be possible when
undertaking changes on a nationwide basis. EPA may modify rules, on a
site- or state-specific basis, that represent one of several possible
policy approaches within a more general statutory directive, so long as
the alternative being used is permissible under the statute. Adoption
of such alternative approaches or interpretations in the context of a
given XL project does not, however, signal EPA's willingness to adopt
that interpretation as a general matter, or even in the context of
other XL projects. It would be inconsistent with the forward-looking
nature of these pilot projects to adopt such innovative approaches
prematurely on a widespread basis without first determining whether or
not they are viable in practice and successful for the particular
projects that embody them. Depending on the results in these projects,
EPA may or may not be willing to consider adopting the alternative
approach or interpretation again, either generally or for other
specific facilities.
EPA believes that adopting alternative policy approaches and/or
interpretations, on a limited, site- or state-specific basis and in
connection with a carefully selected pilot project, is consistent with
the expectations of Congress about EPA's role in implementing the
environmental statutes (so long as EPA acts within the discretion
allowed by the statute). Congress' recognition that there is a need for
experimentation and research, as well as ongoing reevaluation of
environmental programs, is reflected in a variety of statutory
provisions, e.g., section 104 of the CWA.
B. Overview of the Steele County XLC Project
1. Description of the Steele County Community XL Project
Community Based Environmental Regulation
The Steele County XLC pilot project would test the effectiveness of
a community based approach to industrial regulated wastewater effluent
reductions and water use reduction controls designed to: (1) Result in
pollution prevention; (2) meet the objectives of the CWA regulatory
program; and (3) be at least as protective of human health and the
environment as the current system. This project would pilot a
community-based approach to environmental regulation with the goal of
achieving a reduction in the discharge of certain metals to the OWWTF,
and Biological Oxygen Demand (BOD), Total Suspended Solids (TSS) and
Total Kjeldahl Nitrogen (TKN) to the BPWWTF. Other aspects of the pilot
program would include water usage reduction, the development and
implementation of a storm water and sewer water separation and
education plan, and the development of a training and assessment
program of an Environmental Management System.
If this first phase of the project is considered by the parties to
be successful, a Phase II--consisting in general outline of a multi-
media approach to environmental permitting based on overall community
performance in the areas of air emissions, solid waste, hazardous
waste, chemical storage, and community sustainability--may be
considered. Today's proposal does not cover or commit to a second phase
of this project.
For the purposes of today's proposed rule, the group of Owatonna
sponsors who are Participating Industrial Users includes the following
Industrial Users (IUs) in the City of Owatonna: Crown Cork and Seal
Company, Inc.; Cybex International Inc.; Gandy Company, Inc.; Josten's
Inc.--Southtown Facility; Mustang Manufacturing Company; SPx
Corporation, Power Team Division; SPx Corporation, Service Solutions
Division; Truth Hardware Corporation; and Uber Tanning Company. The
final rule may include all or only some of the Industrial Users listed
above. Two facilities included in the Owatonna Sponsor group, Viracon-
Marcon, Inc. and the Wenger Corporation and one sponsor located in
Blooming Prairie, Minnesota, Elf Atochem, are not receiving regulatory
flexibility under today's proposed rule and are therefore not included
as Participating Industrial Users.
To achieve the objectives of Phase 1 of the Project, part of this
project would pilot an incentive-based approach to reduced monitoring
requirements. As the Owatonna sponsors who are Participating Industrial
Users, as a group meet certain discharge reduction goals, the City
could reduce the required frequency of monitoring for any of the
Participating Industrial Users. Other aspects of this pilot program
would include: (1) Pollutant monitoring could be eliminated where a
pollutant is not discharged; (2) in order to encourage water use
reduction compliance with a concentration-based standard could be
demonstrated by compliance with a mass-based limit; (3) an alternative
publication process for Significant Noncompliance (SNC) would be put in
place, and (4) sponsors may seek ``No Exposure Certification for
Exclusion from NPDES Storm Water Permitting'', which is available under
existing regulations (40 CFR 122.26 (g) pursuant to a change in the
regulations found at
[[Page 26553]]
64 FR 68722 (December 8, 1999)), and does not require flexibility under
today's proposal. Each of these elements of the pilot program requiring
regulatory flexibility is explained below.
To achieve the objectives of this project the Participating
Industrial Users would commit to utilize their best efforts to reach
certain discharge reduction goals. Only if these goals are met would
regulatory flexibility regarding lesser monitoring requirements than
currently required under 40 CFR 403.12(e)(1) be granted. Specifically,
the Participating Industrial Users located in Owatonna (or ``City'')
would commit to a 20% reduction goal in the amount of nickel, chromium,
copper, and zinc (by mass) they discharge to the OWWTF. These reduction
goals are for each individual pollutant.
If the first 20% reduction goal is met, a further 20% reduction
goal could be set for the remaining project term. If the initial 20%
reduction goal is met for all pollutants, the City would be authorized,
at its discretion, to reduce the self-monitoring frequency of Owatonna
sponsors who are Participating Industrial Users to once per year. After
the second metal reduction goal is met, the minimum monitoring
frequency could remain once per year. In exercising this discretion,
the OWWTF would be required to consider the Participating Industrial
User's previous three years of compliance data, and could not reduce
monitoring for pollutants where there is a reasonable potential of
violating Pretreatment Standards.
This project would focus on the four metals slated for 20% release
reductions because they are the metals determined to be discharged at
the highest levels to the Owatonna wastewater treatment system relative
to applicable water quality and biosolids criteria. In addition, the
participants are regulated for these pollutants under categorical
pretreatment standards and influence the loading of these pollutants to
the Owatonna wastewater treatment system. Specific reductions of other
categorically regulated metals are not being pursued under this project
because they are released in small quantities relative to applicable
environmental criteria. Because certain of these other metals may be
present at some of the participant facilities, these metals may not
qualify for the elimination of monitoring due to no releases. In such
cases, the POTW would need to require continued monitoring of these
metals. Through this proposed rule the POTW would be given the
discretion to reduce monitoring frequencies for the other categorically
regulated metals to the same extent it is being authorized to consider
reduced monitoring for the four metals subject to the 20% reduction
goals.
This project would also authorize the City to allow a sponsor
Participating Industrial User subject to categorical standards to not
sample for a pollutant, if it is not expected to be present in its
wastestream at levels greater than background levels in its water
supply. For such pollutants, the OWWTF would only be required to
conduct sampling and analysis once during the term of the Participating
Industrial User's permit. The Participating Industrial User would still
be subject to the categorical standards for pollutants determined not
to be present, and would need to resume monitoring if sampling
indicates that a pollutant is present at above-background levels, or at
any time at the discretion of the OWWTF.
If the POTW determines that one or more pollutants are not expected
to be present at a Participating Industrial User, it could modify the
IU's permit to reduce or eliminate the monitoring requirements for the
pollutant(s). The Participating Industrial User permit would also
require the user to submit, as part of its regular semi-annual
monitoring reports, certification that there has been no increase in
the pollutant in its wastewater due to its activities. The POTW would
sample the Participating Industrial User's effluent for all pollutants
in the applicable categorical standard at least once during the term of
the IU's permit.
One of the goals of this pilot project would be to facilitate water
conservation measures at the sponsors' facilities. The total flow to
the OWWTF from the nine Owatonna sponsors who are Participating
Industrial Users is 477,000 gallons per day. The Owatonna sponsors
commit to a goal in the draft FPA of reducing this flow by 10%. To
facilitate meeting this goal this rule proposes that the OWWTF be
allowed to set equivalent mass limits as an alternative to
concentration limits to meet concentration-based categorical
Pretreatment Standards. Under the proposed rule entitled ``Streamlining
the General Pretreatment Regulations for Existing and New Sources of
Pollution'' (Pretreatment Streamlining Proposal), which was published
on July 22, 1999 (64 FR 39564), POTWs would be allowed to establish
alternative mass limits if an Industrial User has installed Best
Available Technology Economically Achievable (BAT), or equivalent to
BAT treatment, and the Industrial User is employing water conservation
methods and technologies that substantially reduce water use.
While all of the conditions for receiving mass limits laid out in
EPA's Streamlining Proposal are not being required for this site-
specific rule (see discussion regarding Today's Proposal in Equivalent
Mass Limits for Concentration Limits section of III.A, below), EPA is
interested in determining whether providing mass limits prior to full
adoption of water conservation practices will encourage more widespread
adoption of such practices. To ensure the continued appropriateness of
the specific mass limits, sponsor industries who are Participating
Industrial Users would also be required to notify the City in the event
production rates are expected to vary by more than 20 percent from a
baseline production rate determined by Owatonna when it establishes a
Participating Industrial User's initial mass limits. The Participating
Industrial Users would commit to continued operation of at least the
same level of treatment as at the outset of the project. Upon
notification of a revised production rate, the City would reassess the
appropriateness of the mass limit. Sponsor Elf Atochem discharges
16,900 gallons per day to the BPWWTF and commits in the draft FPA to a
reduction goal of 10% of this amount. Because Elf Atochem is currently
required to comply with mass-based limits, no change to its limits are
required to facilitate water conservation measures.
EPA is today proposing a site-specific alternative procedure for
publishing Significant Noncompliance for Participating Industrial
Users. SNC is defined in 40 CFR 403.8(f)(2)(vii) as including
violations by an Industrial User which meet one or more of eight
specific criteria. Currently, POTWs are required to publish in the
largest daily newspaper in the municipality in which the POTW is
located a list of Industrial Users who have been in SNC at any time
during the previous twelve months. The SNC publication requirement
serves at least two important functions: (1) A deterrent effect on
industrial users to avoid noncompliance generally, and SNC
specifically; and (2) notice to the public of Significant
Noncompliance. One result of this approach is that if the POTW
publishes the notice for a particular SNC violation after the end of
the twelve month period, the publication may not occur close in time to
the violation, resulting in a delay between the violation and the
notice to the public.
The intent of the proposed alternative procedure is to require
website notice of all SNC violations, and reserve
[[Page 26554]]
additional newspaper publication for cases where this format is needed
for its potentially greater effect. The Sponsors also intended to
promote prompt and appropriate assistance for identifying and
correcting violations through a unique community-based approach.
Pursuant to the Steele County FPA, an Owatonna Peer Review Committee
would be established. This Committee would consist of at least two
Owatonna Sponsors not connected to the noncompliance event being
reviewed and any stakeholders that wish to participate. The Peer Review
Committee would investigate all instances of noncompliance by an
Owatonna sponsor who is a Participating Industrial User and provide
recommendations and assistance to expedite a return to compliance. The
Peer Review Committee would make recommendations to the City regarding
whether or not publication in a newspaper should occur, in addition to
the website publication described below.
All recommendations by the Peer Review Committee would be non-
binding on the City, and the City would continue to implement its
State-approved Enforcement Response Plan. Under the Steele County FPA,
the Sponsors would take steps to conduct public outreach on the
information available regarding Significant and other noncompliance by
the Sponsors, including a description of the Peer Review Committee and
its functions, a Committee contact person and telephone number, and
notice of Peer Review Committee meetings. Such outreach would include,
but not be limited to, periodic (at least annual) mailings to the
identified Steele County XL community stakeholders, and notice in the
public library.
Any violation which is not corrected within thirty (30) calendar
days or which results in pass through or interference would continue to
be published in a newspaper as currently required in Part 403. All SNC
violations, whether published in a newspaper or not, would be published
as soon as is practicable on the MPCA web site. The website would
contain an explanation of how SNC is determined. A contact name and
phone number for information regarding all other violations would also
be listed on the MPCA website.
2. What Are the Environmental Benefits of the Project?
This XLC project is expected to achieve superior environmental
performance beyond that which is achieved under the current CWA
regulatory system by encouraging the sponsors to work together in a
coordinated manner to efficiently reduce their discharges to the OWWTF.
As has been described, the Owatonna sponsors who are Participating
Industrial Users have committed to 20% discharge reduction goals for
nickel, chromium, copper, and zinc. Although not receiving regulatory
flexibility under today's proposal, Elf Atochem has committed to
analogous discharge reduction goals for BOD, TSS, and TKN to the
BPWWTF. The Participating Industrial Users have additionally committed
to a goal of at least a 10% reduction in water usage.
Besides the direct environmental benefits of these reductions, the
sponsors have agreed to conduct an Environmental Management System
(EMS) assessment within eighteen months of the effective date of the
project. In the first year of the project, the Sponsors commit to
arrange and participate in training for the development of the EMS. The
Sponsors will utilize the information from the EMS assessment to reach
the discharge reduction goals as well as to examine their facilities
for other possible environmental improvements. The sponsors have agreed
to report to the EPA and the MPCA the results of the assessment, and
the suggestions which have been adopted by each facility. Additionally,
the City has identified storm water infiltration into the collection
system during wet weather events as a major problem. The Owatonna
sponsors have agreed to work with the City to help alleviate this
problem through the development of educational materials which will be
distributed to sponsor employees as well as to the community at large.
The Owatonna Sponsors have also committed in the draft FPA to develop a
plan to minimize storm water infiltration into the sewer system at each
participating facility.
One unique aspect of this pilot project is the desire of the
sponsor facilities to work together to reach common goals. It is hoped
that this cooperation will go beyond the specific goals of this project
and result in presently unforseen environmental benefits.
3. What Are the Economic Benefits and Paperwork Reduction Deriving From
the Project?
This XLC Project will encourage the sponsors to reduce water
consumption at their facilities. This may result in reduced water costs
for the facilities, without diminishing the level of environmental
protection. Assuming the sponsors discharge lower levels of pollutants
to the OWWTF and the BPWWTF, these POTWs may benefit from lower
treatment costs. To the extent monitoring and reporting frequencies are
reduced under this project, reduced expenditures may result. The EMS
assessments may identify further environmental and economic benefits.
4. Stakeholder Involvement
Stakeholder involvement and participation is vital to the success
of the Steele County XLC project. The participants have worked through
a Community Advisory Committee, established by the Steele County
Project Sponsors, to ensure that the general public has had an
opportunity to be involved throughout the development of this project.
The participants will continue to work to foster full and open
communication between the general public and the project sponsors.
In addition, the Peer Review Committee will continue to provide
opportunities for input from the community on important compliance
issues. For example, if a sponsor is in noncompliance, the Peer Review
Committee would provide input to bring the sponsor back into
compliance. Sponsors would continue outreach work with all stakeholders
using the strategies and tactics contained in their Proposed
Stakeholder Involvement Plan (June 1999). MPCA, the Steele County
Sponsors, Owatonna, Blooming Prairie, and EPA have been involved in the
development of this project, and support it. From the beginning of the
Steele County XLC process, there has been a high priority on providing
opportunity for diverse stakeholder input and review. Public meetings
were held in the City of Owatonna on June 9, September 23, and October
7, 1999.
5. What Is the Project Duration and Completion Date?
As with all XL projects testing alternative environmental
protection strategies, the term of the Steele County Community XL
project is one of limited duration. The duration of the regulatory
relief provided by this rule is anticipated to be five (5) years from
[PUBLICATION DATE OF FINAL RULE] or until [DATE FIVE YEARS FROM THE
PUBLICATION DATE OF FINAL RULE.] However, the project may be terminated
or suspended at any time for failure to comply with any of the
requirements of the rule. If the parties renew the Steele County
Community XL Final Project Agreement beyond its initial five year
period, then it may be necessary to extend this site-
[[Page 26555]]
specific rule for an additional period of time.
6. How Will EPA Ensure That Only Appropriate Sponsors Continue To
Receive Flexibility Under This Proposal?
If EPA determines that it is appropriate to terminate one or more
Sponsors, who are Participating Industrial Users, participation in this
Project so that they will no longer be eligible to receive the
regulatory flexibility provided in today's proposed rule, EPA will
coordinate with the POTW and State to make the necessary changes to the
Participating Industrial User's permit. EPA retains its enforcement
authority under the CWA to enforce Pretreatment Standards whether or
not the POTW or State make such changes to the Participating Industrial
User's permit.
7. How May the Project Be Terminated?
When the State modifies Owatonna's NPDES permit to incorporate the
flexibility in today's rule, it will include a reopener provision
enabling the State to eliminate this flexibility. This reopener
provision would be utilized if the Project is terminated. In the event
of early project termination, EPA will eliminate the provisions of
proposed section 403.19 in advance of its [DATE FIVE YEARS FROM
PUBLICATION DATE OF FINAL RULE] expiration date.
III. Rule Description
A. Clean Water Act Requirements, Pretreatment Streamlining Proposal and
Summary of Regulatory Requirements for the Steele County XL Project
Equivalent Mass Limits for Concentration Limits (40 CFR 403.19(b))
1. Existing Requirements (40 CFR 403.6(c)). National categorical
Pretreatment Standards establish limits on pollutants discharged to
POTWs by facilities in specific industrial categories. The standards
establish pollutant limitations in different ways for different
categories. EPA has established categorical Pretreatment Standards that
are: (1) Concentration-based standards that are implemented directly as
concentration limits; (2) mass limits based on production rates; (3)
both concentration-based and production-based limits; and (4) mass
limits based on a concentration standard multiplied by a facility's
process wastewater flow. The current regulations do not allow a mass
limit to substitute for a concentration limit when the applicable
standard is expressed in terms of concentration.
While 40 CFR 403.6(d) allows the Control Authority to develop
equivalent mass limits for concentration-based standards in order to
prevent dilution, the equivalent limit applies in addition to the
concentration limit. Today's rule would allow a Participating
Industrial User who qualifies for flexibility under the rule to
demonstrate compliance with the categorical Pretreatment Standard by
demonstrating compliance with an equivalent mass-based limit alone.
2. The Pretreatment Streamlining Proposal. In its proposed rule
entitled Streamlining the General Pretreatment Regulations for Existing
and New Sources of Pollution (64 FR 39564, July 22, 1999) (Pretreatment
Streamlining Proposal), EPA proposed to allow Control Authorities to
set equivalent mass limits as an alternative to concentration limits to
meet concentration-based categorical Pretreatment Standards in cases
where an industrial user has installed model treatment technology or a
treatment technology that yields optimum removal efficiencies, and the
Industrial User is employing water conservation methods and
technologies that substantially reduce water use. The Agency, however,
solicited comments on whether mass limits would be appropriate in other
situations. EPA proposed that 40 CFR 403.6(c) be revised to clarify
that equivalent mass limits may be authorized by the Control Authority
in lieu of promulgated concentration-based limits for industrial users.
The Control Authority would be required to document how the mass limits
were derived and make this information publicly available.
The July 22, 1999, proposed rule also specifically referenced the
Steele County XL Community Project and indicated that, if this project
was ready to proceed before EPA finalized the complete Pretreatment
Streamlining proposal, EPA may promulgate, based on that proposal and
comments received, a separate site-specific rule to allow the
industries involved in the Steele County XLC project to use, at the
discretion of the Control Authority, the change proposed for 40 CFR
403.6(c).
3. Today's Proposal. To facilitate water use reduction by
industries involved in the Steele County XLC Project, EPA is proposing
to allow the City of Owatonna, which is the Control Authority for the
Owatonna sponsor industries, the Participating Industrial Users, to set
equivalent mass limits as an alternative to concentration limits to
meet concentration-based categorical Pretreatment Standards. Mass
limits would be established by multiplying the five year, long term
average process flows of the sponsors (or a shorter period if
production has significantly increased or decreased during the five
year period) by the concentration-based categorical standards. In
general, flows used to establish mass-based limits must be appropriate
in relation to current production or known future production, and will
be determined based on consultation between the industry and the City
of Owatonna. EPA's Guidance Manual for the Use of Production-Based
Standards and the Combined Wastestream Formula (September 1985)
provides additional guidance on establishing appropriate long-term
average flows. In return for this flexibility, the sponsor industries,
the Participating Industrial Users, are committing as a group to reduce
water usage by 10 percent over the initial five year project period. In
this site-specific rule EPA is not conditioning the availability of
mass-based limits on the use of water conservation methods and
technologies as it would in the Pretreatment Streamlining Rule. EPA is
interested in determining whether providing mass limits prior to full
adoption of water conservation practices will encourage more widespread
adoption of such practices pursuant to the commitment described above.
In addition, this rule would not require that Participating
Industrial Users utilize model treatment technologies that serve as the
basis for the applicable Pretreatment Standards. Instead, EPA is
interested in determining whether or not it would be sufficient to
prevent facilities from complying with the applicable Standards, in the
event of production decreases, by requiring that the facility maintain
at least the same level of treatment as at the time an equivalent mass
limit is established. To ensure the continued appropriateness of the
specific mass limits, the Participating Industrial Users would also be
required to notify the City in the event production rates are expected
to vary by more than 20 percent from the previous year's average. Upon
notification, the City will reassess the appropriateness of the mass
limit.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF, and the City will need to revise IU
permits issued to Participating Industrial Users to enable it to
establish alternative mass limits. The City will also need to evaluate
its sewer use ordinance to determine if revisions are necessary to
implement the changes proposed today.
[[Page 26556]]
Sampling for Pollutants Not Present (40 CFR 403.19(c))
1. Existing Requirements (40 CFR 403.12(e), 403.8(f)(2)(v)).
Currently, 40 CFR 403.12(e)(1) requires industrial users subject to
categorical Pretreatment Standards to submit reports to the Control
Authority at least twice a year, indicating the nature and
concentration of all pollutants in their effluent that are limited by
the standards. 40 CFR 403.8(f)(2)(v) requires Control Authorities to
sample these industrial users at least annually. Sampling is currently
required for all pollutants limited by a categorical Pretreatment
Standard even if certain pollutants regulated by the standard are not
reasonably expected to be present.
2. The Pretreatment Streamlining Proposal. The July 22, 1999
Pretreatment Streamlining proposal would authorize a Control Authority
to allow an industrial user subject to categorical Pretreatment
Standards to not sample for a pollutant if the pollutant is not
expected to be present in its wastestream in a quantity greater than
the background level present in its water supply, with no increase in
the pollutant due to the regulated process. The Agency also proposed a
reduced sampling requirement for the Control Authority, to once per
permit term, once it had determined that a pollutant was not expected
to be present.
The Pretreatment Streamlining proposal would require the Control
Authority's decision to waive sampling to be based upon both sampling
and other technical data, such as the raw materials, industrial
processes, and potential by-products. EPA did not propose that a
specific amount of sampling data be required but solicited comment on
that issue.
3. Today's Proposal. For purposes of this project, and as specified
in Attachment C of the FPA, the City would be authorized to allow a
sponsor Participating Industrial User subject to categorical standards
to reduce the required sampling to less than twice per year, or to not
sample for a pollutant, if it is not expected to be present in its
wastestream at levels greater than background levels in its water
supply, with no increase in the pollutant due to the regulated process.
For such pollutants, the POTW would only be required to conduct
sampling and analysis once during the term of the Participating
Industrial User's permit. The Participating Industrial User would still
be subject to the categorical standards for pollutants determined not
to be present, and would be in violation of the limit and would need to
resume the required sampling if existing sampling indicates the user
has violated the limit.
Consistent with the Streamlining Proposal, for purposes of this
project, determinations by the City of Owatonna to either waive or
reduce Participating Industrial User sampling to less than twice per
year would be based on both sampling and other technical data, such as
raw material usage, industrial processes, and potential by-products.
Existing data on pollutant concentrations of the local public water
supply will be used to characterize background concentrations; where a
Participating Industrial User uses an alternative water supply,
representative influent sampling would need to be provided. At least
three years of Participating Industrial User effluent data would then
be compared to the background data in making the determination that a
given pollutant is not expected to be present. In addition, the city
would need to make its determination based on its knowledge of the raw
materials used and the facility's processes and potential by-products,
but would not consider capability and efficiency of the user's
pretreatment system. Where it believes it is necessary to make a
determination, the City may require a Participating Industrial User to
provide representative data on its untreated effluent.
Once the POTW determines that one or more pollutants are not
expected to be present at a Participating Industrial User, it may
modify the Participating Industrial User's permit to reduce or
eliminate the monitoring requirements for the pollutant(s). The IU
permit would also require the Participating Industrial User to submit,
as part of its regular semi-annual monitoring reports, certification
that there has been no increase in the pollutant in its wastewater due
to its activities. The POTW would sample the Participating Industrial
User for all pollutants in the applicable categorical standard at least
once during the term of the Participating Industrial User's permit.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF, and the City will need to revise
Participating Industrial User permits issued to Sponsor facilities to
enable it to eliminate monitoring for pollutants not present. The City
will also need to evaluate its sewer use ordinance to determine if
revisions are necessary to implement the changes proposed today.
Monitoring Frequency Reductions (40 CFR 403.19(e))
1. Existing Requirements (40 CFR 403.12(e)). As discussed above, 40
CFR 403.12(e)(1) currently requires industrial users subject to
categorical Pretreatment Standards to submit reports to the Control
Authority twice a year, or more frequently if required by the
Pretreatment Standard or the Control Authority, indicating the nature
and concentration of all pollutants in their effluent that are limited
by the standards. The City of Owatonna generally requires its
significant IUs to monitor and report on a quarterly basis.
2. Today's Proposal. Upon initiation of this project, the City
would evaluate the recent performance of sponsor Participating
Industrial Users, and could reduce monitoring requirements to twice per
year for facilities with satisfactory compliance records. After the
first metal reduction goal of 20% is met, the City would be authorized,
at its discretion, to reduce the self-monitoring frequency of
Participating Industrial Users for any regulated pollutant to once per
year. EPA believes that this mechanism will provide an incentive for
Participating Industrial Users to reduce their contribution of the
specified metals. In exercising this discretion, the OWWTF would be
required to consider the Participating Industrial User's previous three
years of compliance data, and would not reduce monitoring for
pollutants where there is a reasonable potential of violating
Pretreatment Standards.
If one or more of the Industrial Users in the City of Owatonna,
(Crown Cork and Seal Company, Inc.; Cybex International Inc.; Gandy
Company, Inc.; Josten's Inc.--Southtown Facility; Mustang Manufacturing
Company; SPx Corporation, Power Team Division; SPx Corporation, Service
Solutions Division; Truth Hardware Corporation; and Uber Tanning
Company), does not become a Participating Industrial User, the loading
values specified in today's proposed rule would be adjusted in the
final rule based on a 20 percent reduction from the baseline loadings
from the final group of Owatonna Participating Industrial Users.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF, and the City will need to revise
Participating Industrial User permits issued to Sponsor facilities to
reduce monitoring frequencies for regulated pollutants. The City will
also need to evaluate its sewer use ordinance to determine if revisions
are necessary to implement the changes proposed today.
[[Page 26557]]
Significant Noncompliance Criteria (40 CFR 403.19(f))
1. Existing Requirements (40 CFR 403.8(f)(2)(vii)). ``Significant
Noncompliance'' (SNC) is defined in 40 CFR 403.8(f)(2)(vii) to include
violations that meet one or more of eight criteria. The criteria are:
(1) Chronic violations of discharge limits (where 66 percent of all
measurements taken during a six-month period exceed the daily maximum
limit or the average limit for the same pollutant parameter); (2)
technical review criteria (TRC) violations (where 33 percent or more of
all measurements for each pollutant parameter taken during a six-month
period equal or exceed the product of the daily maximum limit or the
average limit multiplied by the applicable TRC (TRC equals 1.4 for BOD,
TSS, fats, oil and grease and 1.2 for all other pollutants except pH));
(3) any other violation of a pretreatment effluent limit that the
Control Authority determines has caused, alone or in combination with
other discharges, interference or pass through; (4) any discharge of a
pollutant that has caused imminent endangerment to human health,
welfare or to the environment or has resulted in the POTW's exercise of
its emergency authority to halt or prevent such a discharge; (5)
failure to meet, within 90 days after the schedule date, a compliance
schedule milestone contained in a local control mechanism or
enforcement order for certain activities; (6) failure to provide
required reports within 30 days after the due date; (7) failure to
accurately report Noncompliance; and (8) any other violation or group
of violations which the Control Authority determines will adversely
affect the operation or implementation of the local Pretreatment
Program.
On July 24, 1990, EPA modified 40 CFR 403.8(f)(2)(vii) to include
the existing definition of SNC (55 FR 30082). The purpose of this
modification was to provide some certainty and consistency among POTWs
for publishing their lists of industrial users in Noncompliance. Under
this provision, POTWs are required to annually publish a list of
industrial users in SNC at any time during the previous twelve months.
The POTW must publish this list in the largest daily newspaper
published in the municipality in which the POTW is located. Independent
of this publication requirement, POTWs are required to develop and
implement Enforcement Response Plans, which describe the range of
enforcement responses they will use in addressing various types of IU
Noncompliance. Where an IU is identified as being in SNC, EPA guidance
recommends that the POTW respond with some type of formal enforcement
action such as an enforceable order (``Guidance For Developing Control
Authority Enforcement Response Plans,'' EPA 832-B-89-102, September
1989).
2. The Streamlining Proposal. EPA did not propose to amend the
entire provision on SNC, or even seek comment on all of it. Instead,
the Agency proposed limited changes and sought comment on a number of
options for a few specific provisions. With respect to publication, the
primary purposes of which are to notify the public of violations and
provide a disincentive for violating, EPA proposed to amend 40 CFR
403.8(f)(2)(vii) to allow publication of the SNC list in any paper of
general circulation within the jurisdiction served by the POTW that
provides meaningful public notice. EPA also proposed to amend the SNC
criteria so that they must only be applied to significant industrial
users, and to address more than just daily maximum and monthly average
limits. The Agency also sought comments on whether to revise the
Technical Review Criteria, whether to revise the SNC criteria for late
reports, and whether to codify the rolling quarters approach to
determining SNC or adopt some other approach.
3. Today's Proposal. Under today's proposed site-specific rule, the
City would have the discretion to not publish certain instances of SNC
by sponsor Participating Industrial Users in a newspaper. EPA believes
that this change would provide faster public notice of SNC and would
reserve additional newspaper publication of SNC for cases where this
format is needed for its potentially greater effect. The City would
continue to be required to provide newspaper publication of any
violation which is not corrected within thirty (30) calendar days, or
which results in pass through or interference. All SNC violations,
whether published in a newspaper or not would be published as soon as
is practicable, on the MPCA web site. The web site would contain an
explanation of how SNC is determined, as well as a contact name and
phone number for information regarding all other violations. The
Owatonna Peer Review Committee system contemplated in the Steele County
FPA will not be specified expressly in the rule, but rather is a
voluntary agreement on the part of the Sponsors.
In addition to EPA's rulemaking action, MPCA will need to issue a
revised NPDES permit to the OWWTF. The City will also need to evaluate
its sewer use ordinance to determine if revisions are necessary to
implement the changes proposed today.
IV. Additional Information
A. How Does This Rule Comply With Executive Order 12866?
Under Executive Order 12866 (58 FR 51735, October 4, 1993) EPA must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety in 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 entitlement, grants, user fees, or loan programs of
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.
Because the annualized cost of this proposed rule would be
significantly less than $100 million and would not meet any of the
other criteria specified in the Executive Order and because this
proposed rule affects only nine specific private sector facilities and
a single Publically-Owned Treatment Works (POTW), it is not a rule of
general applicability or a ``significant regulatory action'' and
therefore not subject to OMB review and Executive Order 12866. Further
today's proposed rule does not affect the POTW or the facilities unless
they choose on a voluntary basis to participate in the XL project.
Finally, OMB has agreed that review of site specific rules under
Project XL is not necessary.
Executive Order 12866 also encourages agencies to provide a
meaningful public comment period, and suggests that in most cases the
comment period should be 60 days. However, for today's action, EPA has
chosen a shorter comment period of 21 days. Today's proposed rule
affects a total of nine Industrial Users and one publically-owned
wastewater treatment facility. These entities were involved in the
development of the draft Final Project Agreement which was made
available for public comment on December 29,
[[Page 26558]]
1999 (64 FR 73047). Additional stakeholder involvement activities have
been described in the Stakeholder Involvement discussion of this
preamble. In conclusion, considering the very limited, site-specific
scope of today's rulemaking and the considerable public involvement in
the development of the draft FPA, the EPA considers 21 days to be
sufficient in providing a meaningful public comment period for today's
action.
B. Is a Regulatory Flexibility Analysis Required?
Regulatory Flexibility Act (RFA), as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et.
seq.
The RFA 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 economic impact on a substantial number of small entities.
Under section 605(b) of the RFA, however, if the head of an agency
certifies that a rule will not have a significant economic impact on a
substantial number of small entities, the statute does not require the
agency to prepare a regulatory flexibility analysis. Pursuant to
section 605(b), the Administrator certifies that this proposal, if
promulgated, will not have a significant economic impact on a
substantial number of small entities for the reasons explained below.
Consequently, EPA has not prepared a regulatory flexibility analysis.
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.
Today's proposed rule amends EPA's General Pretreatment Regulations
to modify on a site-specific basis the requirements for POTW
pretreatment programs. The rule authorizes the Owatonna, Minnesota
Waste Water Treatment Facility, in its discretion, to reduce the
required frequency of monitoring for its industrial users. Only one
POTW is subject to this rule and grant of the relief authorized by the
rule would reduce costs to the Owatonna Wastewater Treatment Facility's
industrial users, including any industrial user that is a small
business. Under these circumstances, EPA has concluded that the rule
will not have a significant economic impact on a substantial number of
small entities.
C. Is an Information Collection Request Required for This Rule Under
the Paperwork Reduction Act?
This action applies to nine companies and a single POTW and
therefore requires no information collection activities subject to the
Paperwork Reduction Act, and therefore no Information Collection
Request (ICR) will be submitted to the Office of Management and Budget
(OMB) for review in compliance with the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
D. Does This Rule Trigger the Requirements of the Unfunded Mandates
Reform Act?
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before 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 why the
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.
As noted above, this proposed rule is limited to the OWWTF and
certain sponsoring industries. This proposed rule would create no
federal mandate because EPA is imposing no new enforceable duties. EPA
has also determined that this proposed rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and tribal governments, in the aggregate, or the private
sector in any one year. Thus, today's proposed rule is not subject to
the requirements of sections 202 and 205 of the UMRA. Nevertheless, in
developing this proposed rule, EPA worked closely with MPCA and the
OWWTF and received meaningful and timely input in the development of
this proposed rule.
E. How Does This Rule Comply With 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.
The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that are based on health or safety risks, such that
the analysis required under section 5-501 of the Order has the
potential to influence the regulation. This proposed action is not
subject to Executive Order 13045 because it is not economically
significant as defined in Executive Order 12866. The proposed rule does
not impose any new or amended standards for discharged wastewater
resulting from treatment by a POTW. With respect to the effects on
children, the collection, treatment and disposal of wastewater occurs
in a restricted system (e.g., buried sewer lines and fenced