Notice of Availability of Letter From EPA to the State of New York Pursuant to Section 118 of the Clean Water Act and the Water Quality Guidance for the Great Lakes System

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Notice of availability.

SUMMARY:

Notice is hereby given of a letter written from Region 2 of the Environmental Protection Agency (EPA) to the State of New York finding that for the most part the State has adopted water quality standards and National Pollutant Discharge Elimination System (NPDES) permits program revisions which are consistent with section 118(c) of the Clean Water Act and 40 CFR part 132. However, there are certain provisions adopted as part of the State's water quality standards and NPDES permits programs that are inconsistent with section 118(c) of the Clean Water Act and 40 CFR part 132. EPA's findings are described in a letter dated April 11, 2000 to New York State. EPA invites public comment on all aspects of this letter, particularly on the findings in the letter and on the course of action that EPA proposes to take if the State fails to adequately address EPA's findings.

DATES:

Comments must be received in writing by June 12, 2000.

ADDRESSES:

Written comments may be submitted to Wayne F. Jackson, Community and Ecosystems Protection Branch, Division of Environmental Planning and Protection, U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York, 10007. In the alternative, EPA will accept comments electronically. Comments should be sent to the following Internet E-mail address: jackson.wayne@epa.gov. Electronic comments must be submitted in an ASCII file avoiding the use of special characters and any form of encryption. EPA will print electronic comments in hard-copy paper form for the official administrative record. EPA will attempt to clarify electronic comments if there is an apparent error in transmission. Comments provided electronically will be considered timely if they are submitted electronically by 11:59 p.m. (Eastern time) June 12, 2000.

FOR FURTHER INFORMATION CONTACT:

Wayne F. Jackson, Community and Ecosystems Protection Branch, Division of Environmental Planning and Protection, U.S. Environmental Protection Agency, Region 2, 290 Broadway, New York, New York, 10007, or telephone him at (212) 637-3807.

Copies of the April 11, 2000 letter described above are available upon request by contacting Mr. Jackson. The April 11, 2000 letter and materials submitted by New York in support of its submission that EPA relied upon in preparing the letter (i.e., the docket) are available for review by appointment at: EPA, Region 2, 290 Broadway, New York, New York (telephone 212-637-3807); and the New York State Department of Environmental Conservation, 50 Wolf Road, Room 310 C, Albany, New York. To access the docket material in New York, call Mr. Jackson at (212) 637-3807 between 8 a.m. and 4:30 p.m. (Eastern time) (Monday-Friday); in Albany, New York, call Teresa Deihsner at 518-457-7937 between 8 a.m. and 4:30 p.m. (Eastern time) (Monday-Friday).

SUPPLEMENTARY INFORMATION:

On March 23, 1995, EPA published the Final Water Quality Guidance for the Great Lakes System (Guidance) pursuant to section 118(c)(2) of the Clean Water Act, 33 U.S.C. 1268(c)(2). (March 23, 1995, 60 FR 15366). The Guidance, which was codified at 40 CFR part 132, requires 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 or the Guidance and identify any necessary changes to obtain EPA approval. If the State fails to make the necessary changes within 90 days, 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.

EPA reviewed the submission from New York State for consistency with the Guidance in accordance with 40 CFR 131 and 132.5. EPA determined that for the most part the State of New York has adopted water quality standards and NPDES permits program revisions which are consistent with section 118(c) of the Clean Water Act and 40 CFR part 132. However, there are certain parts of the State's submission that are inconsistent with the requirements of the Clean Water Act or 40 CFR part 132 and will be subject to EPA disapproval if not corrected. On April 11, 2000, in a letter from EPA Region 2 to the New York State Department of Environmental Conservation, EPA described in detail those provisions determined to be inconsistent with the Guidance and subject to disapproval if not remedied by the State. The inconsistencies relate to the following components of the State's submission in conformance with section 118(c) of the CWA and 40 CFR part 132: (1) Application of the State's chronic aquatic life water quality criteria in certain waters of the Great Lakes Basin; (2) water quality criteria for mercury for the protection of wildlife; (3) Procedure 3 of Appendix F of the Guidance for developing total maximum daily loads and so-called “phased” total maximum daily loads; (4) Procedure 5 for determining reasonable potential to exceed water quality standards for both industrial and municipal dischargers, including the use of fish tissue data, and the consideration of intake credits; (5) Procedure 6 for determining reasonable potential for whole effluent toxicity, and including limits in the permit when a determination of reasonable potential for whole effluent toxicity has been made; (6) Procedure 7 for expressing water quality-based effluent limits (WQBELs) in terms of both mass and concentration; (7) Procedure 8 for including calculated WQBELs in the permit when the WQBEL is below the quantification level, the need to require a pollution minimization plan in all such cases; and, (8) Procedure 9 for limiting the availability of compliance schedules to existing discharges to the Great Lakes Basin. Based on our review to date, EPA believes that, with the above exceptions, the submission by New York is consistent with the Guidance. Today, EPA is soliciting public comment regarding all aspects of the April 11, 2000 letter. In particular, EPA solicits comments on the provisions identified in the April 11, 2000 letter as being inconsistent with the CWA and the Guidance, on EPA's proposed course of action if New York State fails to remedy those inconsistencies, and on EPA's belief that the remainder of the State's submission is consistent with the Guidance. EPA's letter also describes the provisions of the Guidance that EPA would identify in a final rule as applying to discharges in the New York portion of the Basin if the identified inconsistencies are not addressed by the State. EPA may decide to identify in such a rule the provisions described in our letter, or other relevant provisions of the Guidance that the Agency determines upon completion of this process to be appropriate, and the Agency broadly solicits comment regarding what provisions would be appropriate to identify in such a rule.

During the next 90 days, EPA intends to continue working with New York State to address the inconsistencies identified in the April 11, 2000 letter. If the State fails to remedy any of the inconsistencies identified in the letter, EPA will publish a notice in the Federal Register identifying the disapproved elements and the corresponding portions of Part 132 that will apply to waters within the Great Lakes Basin in New York State.