Project XL Proposed Site-Specific Rule for the International Paper Androscoggin Mill Facility in Jay, ME; Project XL Draft Final Project Agreement for Effluent Improvement Project at International Paper Androscoggin Mill Facility in Jay, ME

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule; request for comment on proposed rule and draft final project agreement.

SUMMARY:

The Environmental Protection Agency (EPA) today is proposing this rule to provide site-specific regulatory flexibility under the Clean Water Act (CWA) as part of an XL Project with International Paper's Androscoggin Mill pulp and paper manufacturing facility in Jay, Maine. The site-specific rule would exempt International Paper Androscoggin Mill from certain Best Management Practices (BMPs) required under CWA regulations. In exchange for this regulatory flexibility, International Paper Androscoggin Mill will implement a series of projects designed to improve the mill's effluent quality and will accept numeric permit limits corresponding to the expected improvements in effluent quality. The terms of the International Paper XL project are contained in the draft Final Project Agreement (FPA), on which EPA is also requesting comment.

DATES:

Public Comments: Comments on the proposed rule and/or FPA must be received on or before June 15, 2000. All comments should be submitted in writing to the address listed.

ADDRESSES:

Comments: Written comments should be mailed to Mr. Chris Rascher, U.S. Environmental Protection Agency, One Congress St., Suite 1100, Boston, MA 02114. Please send an original and two copies of all comments.

Viewing Project Materials: A docket containing the proposed rule, draft Final Project Agreement, and supporting materials is available for public inspection and copying at the Water Docket, Room EB 57, U.S. Environmental Protection Agency, 401 M. St., SW, Washington, DC. The docket is open from 9 a.m. to 4 p.m., Monday through Friday, excluding legal holidays. Members of the public are encouraged to telephone the docket in advance at 202-260-3027 to schedule an appointment. Refer to docket number W-00-13. The public may copy a maximum of 100 pages from any regulatory docket at no charge. Additional copies cost 15 cents per page.

A duplicate copy of project materials is available for inspection and copying at EPA Regional Library, U.S. EPA, Region I, Suite 1100 (LIB), One Congress Street, Boston, MA 02114-2023, as well as the Town Hall, 99 Main Street, Jay, ME 04239 during normal business hours. Persons wishing to view the materials at the Boston location are encouraged to contact Mr. Chris Rascher in advance. Persons wishing to view the materials at the Jay, Maine, location are encouraged to contact Ms. Shiloh Ring at (207) 897-6785 in advance.

Project materials on today's action are also available on the worldwide web at http://www.epa.gov/projectxl/.

FOR FURTHER INFORMATION CONTACT:

Mr. Chris Rascher, U.S. Environmental Protection Agency, Region I, One Congress Street, Suite 1100, Boston, MA 02114-2023. Mr. Rascher can also be reached at (617) 918-1834 or at rascher.chris@epa.gov. Further information on today's action is available on the worldwide web at http://www.epa.gov/projectxl.

SUPPLEMENTARY INFORMATION:

Outline of Today's Proposal

This preamble presents the following information:

I. Authority

II. Overview of Project XL

III. Overview of the International Paper Effluent Improvements XL Project

A. To Which Facilities Would the Proposed Rule Apply?

B. From What Required Activities Would Today's Proposed Rule Provide an Exemption?

C. What Would the IP-Androscoggin Mill Do Differently Under The XL Project?

D. What Regulatory Changes Would Be Necessary to Implement this Project?

E. Why is EPA Supporting This Approach of Granting a Waiver From BMPs?

F. How Have Stakeholders Been Involved in This Project?

G. How Would This Project Result in Cost Savings and Paperwork Reduction?

H. What Are the Enforceable Provisions of the Project?

I. How Long Would This Project Last and When Would It Be Completed?

IV. Additional Information

A. How Does This Proposed Rule Comply With Executive Order 12866?

B. Is a Regulatory Flexibility Analysis Required?

C. Is an Information Collection Request Required for This Project Under the Paperwork Reduction Act?

D. Does This Project Trigger the Requirements of the Unfunded Mandates Reform Act?

E. How Does This Proposed Rule Comply With Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks?

F. How Does This Proposed Rule Comply With Executive Order 13084: Consultation and Coordination With Indian Tribal Governments?

G. Does This Proposed Rule Comply With Executive Order 13132?

H. Does This Proposed Rule Comply With the National Technology Transfer and Advancement Act?

I. Authority

EPA is publishing this proposed regulation under the authority of sections 402 and 501 of the Clean Water Act, as amended (33 U.S.C. 1342 and 1361).

II. Overview of Project XL

Project XL—“eXcellence and Leadership”— 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). Project XL gives individual private and public regulated entities the opportunity to develop their own pilot projects wherein the Agency provides targeted regulatory flexibility in exchange for improved environmental performance. EPA intends to use Project XL and other related efforts to test innovative strategies for reducing the regulatory burden and promoting economic growth while achieving better environmental and public health protection.

To participate in XL, interested parties must develop a proposal that satisfies a number of criteria, including criteria for superior environmental performance, transferability, and stakeholder involvement. The definition of “environmental performance” under XL is broad, and EPA seeks superior performance under XL both in areas under existing EPA jurisdiction such as waste handling, air emissions, or effluent treatment, as well as through environmental innovations in fields as diverse as data monitoring and reporting or product stewardship.

The Final Project Agreement (FPA) that evolves out of the review and development of the proposal is a written agreement between the project sponsor and regulatory agencies regarding the details of the proposed project. The FPA outlines how the project will meet the XL review criteria and identifies performance goals and indicators to ensure that the project's anticipated benefits are realized. The FPA also discusses the administration of the agreement, including dispute resolution and termination. Today, EPA asks for comment specifically on the draft FPA for the International Paper Effluent Improvements XL Project. This document is available for review as indicated above under ADDRESSES.y

For more information about the XL program, XL criteria, or about specific XL projects underway, please refer to http://www.epa.gov/projectxl or contact EPA as indicated above under FOR FURTHER INFORMATION CONTACT.

III. Overview of the International Paper Effluent Improvements XL Project

EPA today is requesting comments on the proposed rule and draft FPA that will implement key provisions of the International Paper Effluent Improvements XL Project. Today's proposed site-specific rule is necessary for the project to proceed. The draft FPA outlines the intentions of EPA and other project participants on the XL project. The draft FPA was developed by representatives from EPA, the International Paper Androscoggin Mill in Jay, Maine (IP-Androscoggin), the Maine Department of Environmental Protection (MEDEP), the Town of Jay, and other stakeholders. After comments on the draft FPA have been considered, EPA, IP, MEDEP, and the Town of Jay expect to sign a final FPA.

A. To Which Facilities Would the Proposed Rule Apply?

This proposed rule would apply only to the International Paper Androscoggin Mill in Jay, Maine.

B. From What Required Activities Would Today's Proposed Rule Provide an Exemption?

The proposed rule would exempt the IP-Androscoggin Mill from existing federal regulations codified under the Clean Water Act at 40 CFR 430.03. Those regulations require pulp and paper facilities to implement specified BMPs, e.g., installing and maintaining various operating procedures and infrastructure within the facility; monitoring, data gathering, and reporting; and carrying out several other activities designed to prevent leaks and spills of spent pulping liquor, soap and turpentine that would otherwise lead to increased discharges of pollutants from the final effluent.

C. What Would the IP-Androscoggin Mill do Differently Under the XL Project?

International Paper's claim in its XL proposal was that existing practices at the Androscoggin Mill, including existing spill prevention procedures and process control technologies, are advanced enough to preclude any further improvements to the final effluent from implementation of the BMPs specified in 40 CFR 430.03. To support this claim, the IP-Androscoggin Mill detailed as part of project review discussions how, item-by-item, the mill's infrastructure, operations and procedures are equivalent to or achieve the same objectives as the BMP requirements under the CWA for pulp and paper facilities.

Under the XL project, the IP-Androscoggin Mill will maintain these practices in order to ensure that current environmental performance is sustained. In exchange for the exemption from the requirements of 40 CFR 430.03, the IP-Androscoggin Mill will in addition implement a number of projects designed to improve the mill's effluent quality for chemical oxygen demand (COD) and color beyond levels likely to be attained through implementation of the BMP requirements specified in 40 CFR 430.03. These steps all derive from the project's two most important components: Implementation of a series of effluent improvement projects under the guidance of a Collaborative Process Team with members from IP, EPA, MEDEP, the Town of Jay, and other stakeholders; Amendment or reissuance of the IP-Androscoggin Mill effluent discharge permit to include numeric limitations for color and chemical oxygen demand (COD) at levels that in Phase 1 of the project guarantee sustained environmental performance and in Phase 2 of the project capture in the permit any future performance improvements deriving from the XL project.

The draft Final Project Agreement upon which the Agency seeks comment today describes in greater detail the steps associated with the XL project.

D. What Regulatory Changes Would Be Necessary To Implement This Project?

To allow this XL project to be implemented, the Agency is proposing in today's notice to exempt the IP-Androscoggin Mill from the BMP requirements specified in 40 CFR 430.03. The proposed site-specific rule further provides that, in lieu of imposing the requirements specified in section 430.03, the permitting authority shall establish conditions for the discharge of COD and color for this mill on the basis of best professional judgment. Because both EPA and the Maine Department of Environmental Protection would be signatories to the FPA, EPA expects that the requirements for COD and color will be based on the values and procedures specified in the draft FPA. That is, once the site-specific rule is final, the appropriate permitting authority(ies) will amend or reissue the IP-Androscoggin effluent discharge permit to remove the requirements corresponding to 40 CFR 430.03 and to put in place instead numeric effluent limitations on COD and color that reflect, in the first phase, current effluent quality and, in the second phase, improved effluent quality resulting from the implementation by the IP-Androscoggin Mill of alternative effluent improvement projects called for by this project.

E. Why Is EPA Supporting This Approach of Granting a Waiver From BMPs?

The Agency expects that the exemption for the IP-Androscoggin Mill will result in environmental performance superior to that which would be attained by continued adherence to the BMPs specified in 40 CFR 430.03. As the draft Final Project Agreement explains in detail, the effluent improvement projects that the IP-Androscoggin Mill will put in place under the XL agreement are expected to reduce COD and color in the mill's effluent to approximately half of current levels.

Another important aspect of this project is that it offers EPA a chance to explore how to use a collaborative process to identify facility-specific process improvements that prompt companies to achieve continuous improvements to effluent quality and to memorialize those improvements in the form of evolving permit limits.

F. How Have Stakeholders Been Involved in This Project?

Representatives from several state and local offices have been involved with the development of this project including: The Commissioner of MEDEP, the MEDEP Bureau of Land and Water Quality, members of the Town of Jay Planning Board, Town of Jay Selectmen and the Town of Jay Code Enforcement Officer. The University of Maine has also participated actively in this project. The U.S. Fish and Wildlife Service has also been involved on several occasions.

Non-governmental stakeholders who were invited to participate include but are not limited to: Natural Resource Council of Maine, Environment Northeast, Appalachian Mountain Club, and Western Mountain Alliance. Industry associations who were invited to participate include the Maine Pulp and Paper Association and the National Council of Air and Stream Improvement.

Comments from all other organizations and individuals are welcomed throughout the stakeholder process. All stakeholders including the general public have been and will continue to be notified through local newspaper announcements of meetings and the availability of project documents for review, and there is a specific provision in this project to continue to involve stakeholders as the effluent improvement projects are designed and implemented.

G. How Would This Project Result in Cost Savings and Paperwork Reduction?

IP-Androscoggin proposed this XL project to EPA believing that they could achieve better environmental protection by implementing effluent improvement projects specially tailored to the mill rather than focusing on adhering to existing BMP requirements under the CWA. Since the mill has agreed to re-commit any savings from the exemption to the new projects, the mill will experience little or no net savings as a result of the XL project. Specifically, although IP estimates savings from the BMP exemption of approximately $780,000 in capital and operating costs, these savings will be offset by a corresponding increase in expenditures on the effluent improvement projects.

H. What Are the Enforceable Provisions of the Project?

The enforceable provisions of this project are numeric effluent limitations incorporated into the mill's effluent discharge permit. As noted above, the project contemplates two sets of limits. The first set of limits (known as Phase 1 limits in the draft FPA), reflects current effluent quality for COD and color and corresponds to effluent quality deriving from the BMPs presently in place at the mill (which EPA judged to be equivalent in terms of performance to the BMPs specified in 40 CFR 430.03). The second set of limits for COD and color (known as the Phase 2 limits in the FPA) will be established in accordance with procedures specified in the FPA once the effluent improvement projects are fully implemented to include limits for COD and color that reflect actual performance improvements.

I. How Long Would This Project Last and When Would It Be Completed?

The Project Signatories intend that this project would be concluded at the end of four (4) years: One year to identify and select the list of effluent improvement projects; two years to design and construct the projects; and one year to collect monitoring data for the purposes of calculating the Phase 2 permit limits and to perform overall project evaluation. At the end of four years, if the project is judged to be a success under the terms described in the draft FPA, EPA would intend to allow the IP-Androscoggin Mill to continue operating under the site-specific rule promulgated at the time the FPA is finalized. However, the Administrator may promulgate a rule to withdraw the exemption at any time in the future if the terms and objectives of the FPA are not met or if the exemption becomes inconsistent with future statutory or regulatory requirements.

EPA notes that adoption of an exemption from the BMP regulations in the context of this XL project does not signal EPA's willingness to adopt that exemption as a general matter or as part 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 in the particular projects that embody them. Furthermore, as EPA indicated in announcing the XL program, EPA expects to adopt only a limited number of carefully selected projects. These pilot projects are not intended to be a means for piecemeal revision of entire programs. Depending on the results obtained from this project, EPA may or may not be willing to consider adopting BMP exemptions either generally or for other specific facilities.

IV. Additional Information

A. How Does This Rule Comply With Executive Order 12866?

Because this proposed rule would apply only to one facility, it is not a rule of general applicability and therefore is not subject to OMB review under Executive Order 12866. In addition, OMB has agreed that review of site-specific rules under Project XL is unnecessary.

B. Is a Regulatory Flexibility Analysis Required?

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small not-for-profit enterprises, and small governmental jurisdictions. This proposed rule would not have a significant impact on a substantial number of small entities because it only affects the International Paper facility in Jay, Maine, and it is not a small entity. Therefore, EPA certifies that this action would not have a significant economic impact on a substantial number of small entities.

C. Is an Information Collection Request Required for This Project Under the Paperwork Reduction Act?

This action applies only to one facility. Therefore any information collection activities it contains are not subject to the Paperwork Reduction Act, 44 U.S.C. 3501, et seq. For this reason, EPA is not submitting an information collection request (ICR) to OMB for review under the Paperwork Reduction Act.

D. Does This Project 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 of why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

As noted above, this proposed rule is applicable only to one facility in Maine. EPA has determined that this proposed rule contains no regulatory requirements that might significantly or uniquely affect small governments. 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.

E. How Does This Proposed Rule Comply With Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks?

The Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is determined to be “economically significant,” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This proposed rule is not subject to Executive Order 13045 because it is not an economically significant rule, as defined by Executive Order 12866, and because it does not involve decisions based on environmental health or safety risks.

F. How Does This Proposed Rule Comply With Executive Order 13084: Consultation and Coordination With Indian Tribal Governments?

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected and other representatives of Indian tribal governments to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.

Today's proposed rule will not significantly or uniquely affect the communities of Indian tribal governments, and it will not impose substantial direct compliance costs on such communities. Although Indian tribal communities live in areas near the Androscoggin River, their governments will not be subject to any compliance costs relating to the proposed site-specific rule since the rule is directed at the International Paper mill. Nearby Indian tribal communities are, in fact, expected to benefit directly from the anticipated improvement in water quality. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

G. Does This Proposed Rule Comply With Executive Order 13132?

Executive Order 13132, entitled “Federalism” (64 FR 43255; August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by state and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.”

Under Section 6 of Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This proposed rule does not have federalism implications. It would apply only to a single facility, and it will therefore not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

H. Does This Proposed Rule Comply With the National Technology Transfer and Advancement Act?

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standard. This proposed rulemaking does not involve technical standards developed by any voluntary consensus standards bodies. Therefore, EPA is not considering the use of any voluntary consensus standards. EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially-applicable voluntary consensus standards and to explain why such standards should be used in this regulation.

List of Subjects in 40 CFR Part 430

• Environmental protection
• Reporting and recordkeeping requirements
• Water pollution control

For the reasons set forth in the preamble, title 40 chapter I of the Code of Federal Regulations is proposed to be amended as follows:

PART 430—THE PULP, PAPER, AND PAPERBOARD POINT SOURCE CATEGORY

1. The authority citation for part 430 continues to read as follows:

Authority: Sections 301, 304, 306, 307, 308, 402, and 501 of the Clean Water Act, as amended, (33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361), and section 112 of the Clean Air Act, as amended (42 U.S.C. 7412).

2. Section 430.03 is amended by adding paragraph (k) to read as follows: