April 10, 1993
I  I
          Efwirori mental
          40 CFR Parts 122 et al.
          Water Quality Guidance for the Great
          Lakes System and Correction; Proposed
          flutes-."-  ,..:- .'..';. ; ":" -.' '••   '•'•-_•'. .--":::"-: .':" •'-: "'-

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 20802
Federal Register / Vol. 58,  No. 72  / Friday, April 16, 1993 / Proposed Rules
 ENVIRONMENTAL PROTECTION
 AGENCY

 40 CFR Parts 122, 123, 131, and 132
 filN2MO-AC08

 Proposed Water Quality Guidance for
 the Great Lakes System

 AGENCY: U.S. Environmental Protection
 Agency.
 ACTION: Proposed rule.

 SUMMARY* This document provides
 opportunity for comment on the
 proposed Wator Quality Guidance for
 tha Groat Lakes System ("Guidance")
 developed under section 118(c)(2) of the
 Clean Water Act (CWA), as amended by
 section 101 of thS Great Lakes Critical
 Programs Act of 1990 (CPA). This
 Guidance, once finalized, will establish
 minimum water quality standards,
 antidegradation policies, and
 implementation procedures for waters
 within the Great Lakes System in the
 States of New York, Pennsylvania, Ohio,
 Indiana, Illinois, Minnesota, Wisconsin,
 and Michigan, including the waters
 within the jurisdiction of Indian tribes,
 Today's proposal also is intended to
 satisfy tho requirements of section
 118(c)(7)(C) of the Clean Water Act that
 EPA publish information concerning the
 public health and environmental
 consequences of contaminants in Great
 Lakes sediment and that the information
 include specific numerical limits to
 protect health, aquatic life, and wildlife
 from tho bioaccumulation of toxins.
   The proposed Guidance specifies
 numeric criteria for selected pollutants
 to protect aquatic life, wildlife and
 human health within the Groat Lakes
 System and methodologies to derive
 numeric criteria for additional
 pollutants discharged to these waters.
*Tho proposed Guidance also contains
 specific implementation procedures to
 translate the proposed ambient water
 quality criteria into enforceable controls
 on discharges of pollutants, and a
 proposed antidegradation policy for the
 Groat Lakes System.
   The Great Lakes States and Tribes
 must adopt water quality standards,
 antidegradation policies, and
 implementation procedures for waters
 within the Great Lakes System which
 arc consistent with the final Guidance.
 If a Groat Lakes State or Tribe fails to
 adbpt consistent provisions within two
 yoars of EPA's publication of the final
 Guidance, EPA will promulgate such
 provisions within the, same two-year
 period.
                       DATES: EPA will accept public
                       comments on the proposed Guidance
                       until September 13,1993. Comments
                       postmarked after this date may not be
                       considered. •
                         A public hearing on the proposed
                       Guidance will be held on August 4 and
                       5,1993, in Chicago, Illinois, beginning
                       at 9 a.m. on August 4,1993. The hearing
                       officer reserves the right to limit oral
                       testimony to 10 minutes, if necessary.
                         In addition, EPA and lie States plan
                       to hold a series of public informational
                       meetings across the Great Lakes Basin to
                       provide a general overview of the
                       various elements in the proposed
                       Guidance, Members of the public
                       should call the following numbers for
                       information on the dates and locations
                      'of these meetings: (1) In Illinois,
                       Indiana, Michigan, Minnesota, Ohio and
                       Wisconsin—800-621-8431; (2) in
                       Pennsylvania—215-597-6911; (3) in
                       New York—716-285-8842.
                       ADDRESSES: An original and 4 copies of
                       all comments on the proposed Guidance
                       should be addressed to Wendy
                       Schumacher, Water Quality Branch
                       (WQS-16J), U.S. EPA, Region V, 77
                       West Jackson Blvd., Chicago, Illinois,
                       60604 (telephone:  312-886-0142).
                        The public hearing on the proposed
                       Guidance will be held in room 331, 77
                       W. Jackson Blvd., Chicago, Illinois.
                        Materials in the  public docket will be
                       available for inspection and copying at
                       the U.S. EPA Region V Records Center,
                       77 W. Jackson Blvd., Chicago, Illinois,'
                       by appointment only. Appointments
                       may be made by calling Wendy
                       Schumacher (telephone 312-886-0142).
                       A reasonable fee will be charged for
                       photocopies.
                        Selected documents supporting the
                       proposed Guidance will also be
                       available for viewing by the public at  ,
                       the following locations:
                       Illinois: Lincoln Library, Lincoln Library
                        Reference Center, 326 South 7th Street,
                        Springfield, Illinois, 62701 (217-753-
                        4945).
                       Indiana: Indiana Department of
                        Environmental Management, Office of
                        Water Management, 6th Floor, 105
                        Meridian Street, Indianapolis, Indiana,
                        46206 (317-232-8671).
                       Michigan: Library of Michigan, Government
                        Documents Service, 717 West Allegan,
                        Lansing, Michigan, 48909 (517-373-1300);
                        Detroit Public Library, Sociology and
                        Economics Department, 5201 Woodward
                        Avenue, Detroit, Michigan, 48902 (313-
                        833-1440).
                       Minnesota: Minnesota Pollution Control
                        Agency, Library, 320 Lafayette, St. Paul,
                        Minnesota (612-296-7719).
                       New York: U.S. EPA Region II Library, room
                        402, 26 Federal Plaza, New York, New
                        York, 10278 (212-264-2881); U.S. EPA
                        Public Information Office, Carborundum
  Center, Suite 530, 345 Third Street, Niagara
  Falls, New York, 14303 (716-285-8842);
  New York State Department of
  Environmental Conservation (NYSDEC),
  room 310,50 Wolf Road, Albany, New
  York, 12333 (518-457-7463); NYSDEC,
  Region 6, 7tH Floor, State Office Building,
  317 Washington Street, Watertown, New
  York, 13602 (315-785-2513); NYSDEC,
  Region 7, 615 Erie Boulevard West,     s
  Syracuse, New York, 13204 (315-426-
  7400); NYSDEC, Region 8, 62 74 East ,
  Avon-Lima Road, New York, 14414 (716-
  226-2466); NYSDEC, Region 9, 270
  Michigan Avenue, Buffalo, New York,
  14203(716-851-7070).
Ohio: Ohio Environmental Protection Agency
  Library—Central District Office, 1800
  Watermark Road, Columbus, Ohio, 43215
  (614-644-3024); U.S. EPA Eastern District
  Office, 25809 Central Ridge Road,
  Westlake, Ohio, 44145 (216-522-7260).
Pennsylvania: Pennsylvania Department of
  Environmental Resources, 1012 Water
  Street, Meadville, Pennsylvania, 16335;
  U.S. EPA Region III Library, 8th Floor, 841
  Chestnut Building, Philadelphia,
  Pennsylvania, 19107-4431 (215-597-
  7904).
Wisconsin: Water Resources Center,
.  University of Wisconsin-Madison, 2nd
  Floor, 1975 Willow Drive, Madison,
  Wisconsin (608-2620-3069).,
  Selected documents supporting the
proposed Guidance are also available by
mail upon request for a fee (see section
Xm of the preamble for additional
information).
FOR FURTHER INFORMATION CONTACT:
Kenneth A. Fenner, Water Quality
Branch Chief (WQS-16J), U.S. EPA
Region V, 77 W. Jackson Blvd., Chicago,
Illinois, 60604 (Telephone: 312-353-
2079).

SUPPLEMENTARY INFORMATION:

Preamble Outline

I. Background
A. Description of Resource
1. General Statistics       .     :  '
2. Physical Characteristics
3. History of Environmental Degradation
4. Environmental Problems in the Great
    Lakes System             '._"..
  a. Nutrients      ,
  b. Toxic Substances                 .
B. Great Lakes Water Quality Agreement
1. History of the Great Lakes Water Quality
    Agreement '
  a. The Boundary Waters Treaty of 1909
  b. The 1972 Great Lakes Water Quality
    Agreement     -
  c. The 1978 Great Lakes Water Quality
    Agreement    "'
  d. The 1987 Amendments to the Great
    Lakes Water Quality Agreement
2. Major Provisions of the Great Lakes Water
    Quality Agreement
3. Implementation of the Great Lakes Water
    Quality Agreement
  a. The International Joint Commission
  b. Provisions for Consolidation and Review

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                   Federal Register / Vol.  58, No. 72 / Riday, April 16, 1993 /Proposed Rules,          3I&803'
   c. Status of Negotiations With Canada on
   - Revising the Specific Objectives
 C. Governors' Toxics Agreement

 D. Great Lakes Water Quality Initiative
 1 Formation of Great Lakes Water Quality
     mitiative                 /
 2. Great Lakes Critical Programs Act of 1990
 .3. Process After the CPA
 E Elements of the Guidance
 1 Water Quality Criteria for the Protection of
     Aquatic Life
 2-.Water Quality Criteria for the Protection of
     Human Health -                  ,
 3 Water Quality Criteria for the Protection of
     Wildlife   :..""•  '   •'..;. -   '   •   ; :
 4. Bioaccumulation Factors      :      -
 5. Antidegradation              !
'• 6. Implementation Procedures
 -F. Science Advisory Board Review

 G. Other Programs to Protect and Restore the
 Great Lakes •••/''*'              '.'-.
 1. Great Lakes Five Year Strategy   ;
 2. Great Lakes Pollution Prevention Action
     Plan
 3. Lake wide Management Plans (LaMPs)
 4. Remedial Action Plans CRAPs)  .    --".'"
 5. Contaminated Sediments            '
 6. Atmospheric Deposition       '   ' . '.-••  '_•
 7. Storm Water :            •      '    ,
 8. Combined Sewer Overflows (C£!Os)
 9. Discharges of Oil and Hazardous Polluting
 ,   Substances ;         -
 10. Nonpoint Sources of Pollution
 111 Great Lakes Fish Advisories
 12. Environmental Monitoring and Data •' .,.
     Management Programs for the Great
     Lakes .  .  .' ...   :'..,' v.   .   .. ••.' . ••
 13. Great Lakes Toxic Reductions Initiative
   •• Multi-media Management Committee
 H. References

 II. Regulatory Requirements        . ;
 A. Scope and Purpose     ".-.--   L .
 B. Definitions         -.        ;•;'.'     .- .'

 C. Adoption of Criteria. Methodologies, and
 Procedures                    "

 D. Application'of Methodologies, Policies,
 and Procedures               ,.
 1. The Two-Tiered Approach    •
 2. Application of Tier I Methodologies  ,
 3. Application of Tier n Methodologies
 E. Applicability of the Water Quality
 Guidance
 1. Criteria and Values      -"    •'''•    ;
   a. Background       '               -
   b. Applicability of the Proposed Guidance
   c. Justification for the Proposed. Approach
•   d. Other Options Considered    ••'—
 2. Implementation Procedures     .
   a. Applicability of the Proposed Guidance
   b. Justification for the Proposed Approach
   i. Wet-weather Point Source Discharges
  ,ii. Excluded Pollutants   ->.
 3. Antidegradation Policies     ,:
. F. Excluded Pollutants         ,

 G. Pollutants of Initial Focus fo'r Criteria
 Development, and Bibaccurnulative       ;
 Chemicals of Concern          ..     ., ^_

 H. Adoption Procedures          '  '.
 I. Interpretation of "Consistent With"
 j; Precedential Effect of Elements of the
 Guidance
 K. Endangered Species Act          <
 L. Request for Comments                 ;
 m. Aquatic Life
 A. Introduction and Purpose   .     ,    .
 B. Tier I Criteria            '    " . ''    :
 1. Methodology  '.-.-'
. 2. Selection t>f Pollutants for Application of
 .'.   Tier I Criteria Methodology     ;    "
 3. Tier I Numeric Criteria          ,
 4. Potential Changes to National Guidelines
 C. Tier II Values          ;       >

 D. Confbrmance to the Clean Water Act,
 Great Lakes Water Quality Agreement and
 Great Lakes Critical Programs Act of 1990
 1. Tier I Aquatic Life Criteria and
     Methodology        ..       ;
   a. Comparison With the Clean Water Act
   b. Conformance With the Great Lakes
     Water Quality Agreement
 2. Tier H Criteria Methodology
   a. Comparison With the Clean Water Act
   b. Conformance With the Great Lakes  •
     Water Quality Agreement
 TV. Bioaccumulation Factors     :  : -.'•-  "••
 A. mtroduction            •    "  '   .-'-•
 B. Bioaccumulation Factors
 1. Bioaccumulation and Bioconcenbation   •
     Concepts       '.•-'.     .'--'-
 2. Existing EPA Guidance
 3. The Great Lakes Guidance for BAFs    "
   a..Measured and Predicted BAFs .      '
   b. Standard Lipid Values
   i. Standard Lipid Value for Human Health
     BAFs  '  '  ".        ' :    .-
   ii. StandardLipid Value for Wildlife BAFs
   iii. Comments Requested
   c. Food Chain Multipliers
   d. EHect of Metabolism on BAFs
   e. Bioavailability          .         ,
   f. Other Uses of BAFs
 4. SAB Comments
 5. Relationship of the Guidance to Current
;     EPA Guidance
 6. Adoption of Water Quality Standards  ',
     Consistent with the Proposed Guidance
 7, Literature Cited     ,      •"
 V. Human Health ~              ; r
 A.,Jntroduction   , :   "-',.•'._••
.B. Criteria Methodologies
 1. Endpoints Addressed by the Human
    Health Methodologies
 2. Mechanism of Action: Cancer and
    Noncancer              '.''•'
   a. Cancer                   ,
   b, Noncancer         ..
_3. Choice of Risk Level           r   '
 4; Acceptable Dose     -
   a,RAD
•'  C.IRIS-  "  •••••••••; - .-  ;•;••• v '_:\  ::c^-r::-:'
"5. Exposure Assumptions          ;"-<-X' •
   a.,Body Weight      _:       -        __
•   b. Duration of Exposure'      '  •   '    r
  ; c. Incidental Exposure        >_,      .   .
   d. Drinking Water Consumption
  'e.' Fish Consumption  ,      ,        .
   f. Bioaccumulation Factor (BAFJ
'   g. Relative Source .Contribution '
   h^ General Considerations
 6. MmimumData,Requkements/TierIand
    ' Tiern  : ;    .,,   ;   .'     '•    .  _  ,
   a. Carcinogens           ,
   b. Non-carcinogens '    .           v
 7. Criteria Derivation          :  •,-•'-•-
 8, Proposed Criteria and Values'          ;
 G. Relationship of the Great Lakes Initiative
 Guidelines to National Guidelines Revisions

 D. Comparison With the Clean Water Act and
 Great Lakes Water Quality Agreement
 1. Tier I Human Health Criteria/Methodplpgy
   a. Comparison With the Clean Water Act
   b. Conformance With the Great Lakes   ,   ~
,     Water Quality Agreement          "
 2. Tier H Criteria Methodology  '   "-   * "" ""
   a. Comparison with the Clean Water Act   i.
   b. Conformance with the Great Lakes Water
     Quality Agreement   .       '   ; /
 E. Review of the Great Lakes Guidance by the
 EPA Science Advisory Board (SAB)
 F. Literature Citations        ••{-.    -
 vi.
 A, Introduction                      "
 B. Wildlife Criteria Methodology .
 l.Wisconshi State. Wild and Domestic
     Anknal Criteria         :            ;
 2. Modifications to Wisconsin's WDAC  -
   , Procedure    :  '   ': •  '     i-   ;
 3. The'Great Lakes Water Quality Initiative
     TOdlife Criteria Methodology {
   a. Parameters of the Hazard Component of
     the GLWQI Wildlife Criteria  t
     Methodology       '       '.'-'_      :
   i. I0AEL to NOAEL Extrapolations
   ii. Subchronic to Chronic Extrapolations
   iii. Species Sensitivity Factor          ;
   iv. intraspecies Variability      •'•'••.
   v. Alternative Formula for Hazard
     Component of Equation
   b. Parameters of the Exposure Component
   ^ of the GLWQI Wildlife Criteria
'._•:   Methodology
 - i. Approach Used to Select Representative
    : Species Identified for Protection
   ii. Bioaccumulation Factors
   Hi. Exposure Routes Considered
 C. Additional Issues         -.'      •   '
 l.Use'of Human Health Paradigm        ;
 2. Minunum Data Base .for Wildlife Criteria/
     Derivation       :.:. .''.'..      . '  !",,'>
 3, Acceptable Endpoints for Toxicity Studies '
 4. Use of an Acute to Chronic Conversion1 •'"•".!,
.-'  "Ratio- -   ,  :; .• '  '•-••/'.--• - ' :>-,  ...' .-••

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Federal Register / Vol. 58, No. 72 / Fr&ay, April  16, 1993 / Proposed Rules
D. Chemical Selection for Wildlife Criteria
Derivation
E. Tier I Wildlifa Criteria and Tier D Wildlife
Values
P. Comparison With the CWA and
Relationship to National Guidance
1. Relationship to Existing National Guidance
2, Relationship to Current Efforts to Provide
    National Guidance for the Development
    of WOdlifo Criteria
G, Comparison of Wildlife Criteria and
Methods to National Program and to Great
Lakes Water Quality Agreement
1, "No Less Restrictive" Than the CWA and
    National Guidance
2, Conformanct With the Great Lakes Water
    Quality Agreement
H. Bibliography
VH. Antidegradation
A. General Discussion/Background
1. Federal AnUdegradaUon Policy and
    History
  I. History of tho Federal AnUdegradation
    Policy
  b. Existing National Antidegradation Policy
  c. Great Lakes States Experience
  d. Alternative Approaches to Assessing
    Lowering of Water Quality
B. General Outline of GLWQI
AnUdegradation Process
1, NarraUvo Flow Chart of Process
2. Preconditions for Implementation of
    AnUdegradation Procedures
3. Steps Preceding an AnUdegradaUon
    Review
  a. Establish That the Action May
    SJgnificanUy Lower Water Quality
  b. Characterize the Receiving Water
C AcUviUes Covered by the Great Lakes
AatidegradaUon Guidance
1. DistlncUon Between High Quality Waters,
    Outstanding National Resource Waters,
    and Other Classes of Waters
  i. Existing Federal Policy
  b. GLWQI Guidance
2. Significant Lowering of Water Quality
3. Covers All Pollutants Sources (Point and
    Nonpoint)
4. Exemptions
5. Discharges of Fill Material in Wetlands
D. Existing Effluent Quality
 1, Background
 2, OpUon 3 for EEQ Controls
   a, Option 1: EEQ as Numeric Mass Loading
    Rate Limitations
   b. OpUoa 2: NarraUve Prohibition Coupled
  *  with EEQ NotificaUon Requirement
   c. Supplement to Options 1 or 2:
    Establishment of Discharge Prohibitions
    to Maintain EEQ
 3. Issues
   a. Punishment of Good Performers
   b. Statistical Procedures
   c. Data Availability and Representativeness
   d. Application to Municipalities
   o. Restrictions on Actions Versus
     Limitations on Pollutants
   f. Statutory Authority for EEQ
   g. Ability to Accommodate a Return to
     Increased Production Levels Under
     AnUdegradaUon.
                          h. Relationship of EEQ to Implementation
                            Procedure 8
                        E. De Minimis Lowering of Water Quality
                        1. Background    ,  •
                        2. Detailed Description of De Minimis Test
                          a. Specific Tests Included in De Minimis ',
                            Demonstration
                          b. Examples
                          i. Example 1
                          li. Example 2
                          iii. Example 3
                        3. Issues
                          a. Use of Assimilative Capacity in De
                            Minimis Decision
                          b. Fixing Assimilative Capacity at a Date.
                            Certain and Choice of Date
                          c. Demonstration That No Ambient Change
                            Occurs as a Result of Increased Loading
                          d. Use of the Margin of Safety Specified in
                            the Implementation Procedures as a
                            Ceiling on De Minimis Decisions
                          e. Multiple De Minimis Lowering of Water
                            Quality by a Single Source
                        F. Antidegradation Demonstration
                        Components
                        1. Background and Rationale
                        2. Hierarchy of Antidegradation
                            Demonstrations
                        3. Identification of Prudent and Feasible
                            Pollution Prevention Alternatives to
                            Prevent or Reduce the Significant
                            Lowering of Water Quality
                          a. Substitution of BCCs with Non-
                            bioaccumulative and/or Non-toxic
                            Substances
                          b. Application of Water Conservation
                            Methods
                          c. Waste Source Reductions Within Process
                            Streams
                          d. Recycle/Reuse of Waste By-products,
                            Either Liquid, Solid, or Gaseous
                          e. Manufacturing Process Operational
                            Changes
                        4. Alternative or Enhanced Treatment
                            Alternatives That Eliminate the
                            Significant Lowering of Water Quality
                        5. Social or Economic Development
                             Demonstration
                           a. Baseline Situation
                          b. Net Positive Impact
                          c. Other Developments        •
                        6. Special Remedial Action Provision
                        7. Issues
                           a. Other Options Considered for
                             Determining if Significant Lowering of
                             Water Quality is Necessary
                           b. Economic Recovery
                           c. Best Available Technology
                           d. Mandatory Expenditures for Alternative
                             or Enhanced Treatment Techniques
                           e. Antidegradation Decision Presumption,
                             Against the Significant Lowering of
                             Water Quality
                         G. Special Antidegradation Provisions for
                         Lake Superior
                         1. Background
                         2. Effect                :
                           a. Relationship to Other Antidegradation
                             Requirements
                           i. Example
                           b. Lake Superior Basin-Outstanding
                             National Resource Waters . .    ;
                           c. Lake Superior Bioaccumulative
                             Substances of Immediate Concern
 H. Offsets

 I. Incorporation Into State Water Quality
 Standards        .

 VIII. Genera! Implementation Procedures
 A. Site-Specific Modifications to Criteria  ,

 B, Variances From Water Quality Standards,
 for Point Sources .   '    •
 1. Current EPA Policy
 2. GLWQI Proposal (40. CFR part 132,      -
    Appendix F, Procedure 2)
 3. Applicability           -  "       .
 4.' Maximum Tmieframe
 5. Conditions to Grant a Variance
 6. Timeframe to Submit Application    :
 7. Public Notice of Preliminary Decision
 8. Final Decision on Variance Request
 9. Incorporating State- or Tribal-approved
    Variance Into Permit
 10. Renewal of Variance
 11. EPA Approval
 12. State or Tribal Water Quality Standards
    Revisions
 13*. Consistency With the CWA and
    Conformance With the GLWQA
   a. Consistency With the Clean Water Act
   b. Conformance With the Great Lakes
    Water Quality Agreement ,
 14. Options Considered
 15. Request for Comments
 C. Total Maximum Daily Loads
 1. Background
 2. National Approach
   a. General Approach to TMDL
     Development
   b. Phased TMDLs
   c. Pollutant Degradation
   d. Pollutant Transport
 3. Development of the Proposed Guidance
   a. The Proposed Guidance
   b. Overview of Option A and Option B
 4. General Conditions of Application
   a. General Condition 1
   b. General Condition 2
   c. General Condition 3
   d. General Condition 4 ,
   e. General Condition 5
   f. General Condition 6
   g. General Condition 7
   h. General Condition 8
   i. General Condition 9
   j. General Condition 10
   k. General Condition 11
  5. Special Provisions for BCCs
   a. Reason for Restricting Discharge of BCCs
   b. Elimination of Mixing Zones for BCCs
    c. New Sources .;.',.
    d. Mixing Zones During the Ten Year
     Phase Out
    e. Exception to the Ten Year Phase Out of
     Mixing Zones
  6. TMDLs for Open Waters of the Great Lakes
    a. Point Source Mixing Zones for Chronic
  ' .Criteria and Values
    b. Calculating Load Allocations
    c. Protection From Acute Effects   .  .
    d. Procedures When High Background
•    , Concentration's are Present      ',  "
    e. Margin of Safety
    i. Chronic Criteria and Values
    ii. Acute Criteria and Values
  7, TMDLs for Discharges to Tributaries
    a. Steady State Mass Balance Approach
     Common to Both Options

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                   Federal Register  / Vol.  58, No. 72/^ Friday.  April  16, 1993 /Proposed Rales
                                                                               20805
   b. Design Flows Common ;to Both Options
   c. Overview of Option, A ......  /
   i. Load Inventory.                 .,
.   ii;Loading Capacity     .     "
,;  iii. Basin Margin Of Safety    '._'"
 .  iv. Load Reduction Targets       '"..
   v. Basin Allocations    .':•'.
   vi. Site-specific Cross-checks
   vii. Establish Final Allocations
   viii. Monitoring Provisions     .
   d. Overview of Option B         '
   i. Source-specific TMDLs         _    •
   ii. Mixing Zone Capacity  ;          '
   iii. Background Loadings      ;"     -..  . .
   iv. Formula Modification Based on Mixing
     'Zpne.Studies        ,r        .   '   :,
   v. Limitation of Use of Source-specific
     TMDLFormula    _      ,   ,
   e. Pollutant Degradation      ,
 8. Pollution Trading Opportunities  !
; 9..State Adoption   :  ,
 10. Summary of Other Options Considered
 11, Request for Comments
 D.Additivity                     \
 1. Introduction " ;_",'          ...
 2. Approaches Considered :   ..
   a. Aquatic Life    . .      ,           " ..
   b. Human Health—Carcinogens
   c. Human Health—Non-carcinogens
   d. TEFs and  BEFs for Chlorinated Dibenzo-
     p-dioxins (CDDs) and Chlorinated
     Dibenzoforans (CDFs)
   e. Wildlife  '  '             ;       : '
 3. Request for Comment on Approach
     Considered for Implementing the States'
     Narrative Criteria
 4. Request for Comment on Alternative  ,
     Approach                       :
 5. Request for Comments      ..'.;•;       "
 E. Reasonable Potential for Exceeding
 Numeric Water Quality, Standards •-.,-.
 1. Existing National Rules and Guidance
   a. Excursion Above the Water Quality
-     Standard  :           .  •••,'•'.      .
   b. Reasonable Potential  for Excursion
     Above the  Water Quality Standard
   c. No Reasonable Potential for Excursions
     Above the  Water Quality Standards
   d. Inadequate information
 2. Proposed Procedure 5 -        '•'..; • •
   a. Develpping Preliminary Effluent
 .    Limitations,       ,     -'.'-.-'   '•.-.'.'
   b. Determining Whether There is    ,    ,
     Reasonable Potential to Exceed the      ,
     Preliminary Effluent Limitations "
 ,  i. Determining Reasonable Potential Where
   " Ten or More Effluent Data Points are
     Available and the Effluent Flow Rate is
   ,  Less than the 7-day, 10-year Flow Rate
   .  or the Discharge is to  Open Waters of the
     Great Lakes.        ,  ,      _....  .
   ii. Determining Reasonable Potential
   * Where Ten or More Effluent Data Points
     are Available and the  Effluent FJ6w Rate
     is Equal to or Greater Than the 7-day, 10-
   ;  yearFlpwRate       .    v '•'...--  •
   iii. Determining Reaspnable Potential
   , , Where There is at Least Onejnit Less
     Than Ten Data Points Available
   c. Determining .the Need for Water Quality-
     based Effluent Limitations in the
     Absence of Effluent Monitoring Data for
     A Specific Facility  -:'; ,     ••'.','•;'• '.--.-
   d. Determination of Reasonable Potential
•  :  foriPpllutants for Which Great Lakes Tier.
   ,  II Values are Not'Available   . -_ • ''•_'  -~  •
    e. Consideration of Intake Water Pollutants
      W^ien Determining Reasonable Potential
  ,  i. Introduction   ,
    Ii. Current National Approach,
    (A) Net/Gross Credits for Technolpgy-based
" ' '   Lunits .;.'•.":     ..-  ••    .-.'  ..•.:":' .-'
    (B) Consideration of Intake Water   .
 :;   : Pollutants for Water Quality-based
      Limits  •  . -     '-         •-.--',-• i
 •   (i)TMDLS•-.'---  .    :•  .:•-•_•]    .-/'..; .   :,
 '-.  (2) Variances From Water Quality
      Standards.      •         ,•  .V
"   (3) Modifications to Designated Uses
    (4) Site-specific Modifications to Criteria
    (5) Additional Examples Of Application of
:      Existing Mechanisms
   iii. Proposed Guidance   ."••    -
   iv. Alternative Options Considered
   (A)Option-l  -.: .     .;•  /' --^'.  -' '
   (B)Option2  :"-"-     '.- ,
   (C) Option 3  ;;     -r   '. '.]''" '
   (D)Option4  :   .; '
 ,' v. Request for Public Comment    .
   f. Other Applicable Conditions
 F. Whole Effluent Toxicity        -    •
 l..Bac;kground     .
 2. Cun-ent National Guidance  ;           "
   a. Regulations
   b, Existing Technical Guidance     :
 3. Great Lakes Guidance
   a. WET Basic Requirements'          .
   i.* Acute Toxicity Control   ;
  • ii. Chronic Toxicity Control
  \iii.NumericandNarrativeCriteria
   b. WET.Test Methods
   c. Permit Conditions
   i. Data Indicates the Reasonable Potential
     forWET
   ii. Insufficient Data to Determine the
 -'  Reasonable Potential for WET
   iii. Data Indicates No Reaspnable Potential
     for WET                •''"..
   d. Reasonable Potential Determinations
   i. Characterizing Acute and Chronic     :   ,
    , Toxicity Values        .          ".'
   ii. Specific Conditions for Acute Toxicity
   iii. Specific Conditions for Chronic -
     Toxicity  .           ;
   e. State and Tribal Adoption of Guidance  •
 G. Loading Lunits
 1. Expression of WQBELS as Concentratipn
     and Mass Loading Rates
 2. Procedures to Calculate Mass Loading
     Limits,     -     •'•;•        .
 3. Special Provisions Applicable to. Wet^
     weather Discharges   •::^'--\^_
 H. WQBELS Below the Level of V..:
 Quantification        -         ,.
 1. Existing National Guidance
 2. Great Lakes Guidance              .
 3, State and Tribal Adoption Requirements
 4. Options Considered      '
 I. Compliance Schedules      •

 IX. Executive Order12291       : .'
 A. Introduction and Rationale for Estimating
"Costs and Benefits for the Great Lakes Water
 Quality .Guidance '.-''-    •'.'.'.    '••' ' '•-

 B. Overview of Projected Costs Attributable •
 to the Great Lakes Water Quality Guidance
 1. Introduction                          "
 2.. Methodology for Estimating Costs to Point
     Sources Attributable to the Great Lakes
 '    Water Quality Guidance     :' ., .-": ',...•
  3. Deterrninatibns of Costs •  , .-•  '  •; .";..
  4. Estimated Facility Cpnipliance Costs
.. .  a: Basic Considerations "
     .
,    c. Monitoring Costs .            . J
  5. Extrapolation of Total Compliance Costs
     for Sample to the Great Lakes '
     Community of Point Sources       ;
  C. Limitations of the Analysis .  ;    :  ,
'! l.Lunitations iii Scope   '      :          -
: 2. unpact of Technical Assumptions ".<
  DVFindings       '    ;,       ,         ,
  1. General Observations '.-' '••',"       !•
  2. Specific.Findings           *
  E. Provisions in the Proposed Guidance
  Available for Use at States' Discretion to
  Mitigate Compliance Costs   •'--.'-  ' :."'•    :-.
  1. Additional Time to Collect Data to Derive
     a Numeric tier I .Criteria or a New Tier
                :             '••          -
 2; Variances From Water Quality Standards
 3. Mixing Zones   '  _  .>        •
 4. Reasonable Potential to Exceed Water.
 ;•_  Quality     -; * '.._'.   ••••••••
 5. Designated Use Modification       '
 6; Site-specific Criteria            "  "    r
 7. Total Maximum Daily Load:(TMDL)/Waste
     Load Allocation (WLA)   V
 8.,Compliance Schedules      "".-•.      "
 F. Sensitivity Analysis    '     ,' ...•-'-.'
;'l. Tier I BCCs are Found Bioaccumulating   :
 2. Proposed Antidegradation Requirements
   a. Step 1—Pollution Prevention
••  b. Step 2—Alternative or Enhanced
     Treatment         \  .
   c. Step^-^Social/Economic Impact
   d; Summary   -
,3. Future Detection of BCCs!  •_-.;:
 4. Elimination of Mixing Zones for BCCs
 5. Prevalence of Tier II BCCs arid Potential
- -.-  BCCS     '. -:;  ':   •-  -.  ,v  .;•..=::
 6. Evaluation of hitake Pollutant Options
 7. Summary    .        ,.-.;'..
 G. Future Analyses;'    :    ,]  ..'-;';  ;

 H, Cost-effectiveness        ••': ".'.
 i.'introduction. •;  '            ",   -
 2. Pollutant Loadings,Reducti6ns  .-•••'••.
 3. Toxicuy-Weighted Loadings Reduction
 4. Cost-effectiveness        :   .
 5. Sensitivity Analysis        •
 I. Overview of Projected Benefits Attributable
 to the Great'Lakes Water Quality Guidance
 l..Introductipn                 :    ;     '
 2. Qualitative Assessment of Benefits   :
  :; Associated With the Great Lakes Water
 '••'•'••, Quality Guidance'..-.-...        ..\,     ....'.••
 ^a. Sensitivity and Unique Attributes of
    Receiving Waters     ',"';-.'       ;
   b. Nature of Toxic Poilutarits Addressed by
  1 the GLWQG and Implications for Risk •
   ^Reduction        •     .     •  ;   <
   c. Overview of Exposed and Sensitive  ,
    Populations                ;-   ;    ;
   d. Conclusions     .  :
 3. Economic Concepts Applicable to the
    Quantitative Benefits Analysis          :
   a. The Economic Concept of Benefits   ';•'.:
   b. Benefit Categories Applicable to the
   \GLWQG-  ^--:\ ••-'. ;v-'''":"  . ••'''•• "'•':•'•
 4. Limitation of the Benefits Analysis
   a. Causality: Linkuig the GLWQG to      -
   : .Beneficial Outcomes '•  ". . .     :    -, .-.

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20806
Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993  /  Proposed Rules
  b. Temporal, Spatial and Transfer Issues
  L Tha Time Path to Ecosystem Recovery
    From Near-term Reductions in Toxic
    Loadings
  li. Tha Geographic Scope of Contamination
    and of Benefit-generating Activities
   Throughout the Great Lakes Watershed
   Ecosystem
  lit. Existing Data Sources
  c. Baseline and Benefits Attribution Issues
  d. Contingent Valuation Method Issues
  L Using CVM to Estimate Use
   (Recreational) Benefits
  II. Using CVM to Measure Nonuse Values
S. Cost-effectiveness of the Proposed
   Guidance at Three Sites
6. Future Analysis
X Regulatory Flexibility Act
XI, Paperwork Reduction Act
Xff, Judicial Review of Provisions Not
Amended
Xlll, Supporting Documents
Appendix to the Preamble—Great Lakes
Water Quality Initiative Technical Support
Documont for Wildlife Criteria

I. Background
A, Description of Resource

I. General Statistics
  Tha Great Lakes, comprising Lakes
Superior, Michigan, Huron (including
Lake St. Glair), Erie, and Ontario, are an
important part of the physical and
cultural heritage of Norm America.
From the western tip of Lake Superior
to the eastern shores of Lake Ontario,
the Great Lakes span, over 750 miles.
Termed freshwater or inland seas by
early explorers on the North American
continent, the Great Lakes provide water
for consumption, transportation, power,
recreation and a host of other uses by
aquatic life, wildlife and humans. The
Great Lakes are one  of the largest surface
systems of fresh water on earth,
containing roughly 20 percent of the
world's fresh water supply and 95
percent of the freshwater of the United
States. Only the polar ice caps and Lake
Baikal in Siberia contain more fresh
water.
  The Great Lakes System includes the
five Great Lakes and all streams, rivers,
lakes and other bodies of water that are
within the drainage basin of the Great
Lakos, including all connecting
channels (the Saint Mary's River, Saint
Clair River, Detroit River, Niagara River
and the Saint Lawrence River to the
Canadian Border). The Great Lakes
System spans waters in eight States—
New York, Pennsylvania, Ohio, Indiana,
Illinois, Michigan, Wisconsin and
Minnesota—and parts of the Canadian
Province of Ontario. The Great Lakes
region Is currently home to  more than
40 million people, including 20 percent
of the United States population and 50
                      percent of the Canadian population.
                      Over 23 million of these people depend
                      upon the Great Lakes for drinking water.
                        The Great Lakes Basin Ecosystem—
                      the interacting components of air, land,
                      water and living organisms, including
                      humans, that live within the Great Lakes
                      drainage basin—supports hundreds of
                      species of aquatic life, wildlife and
                      plants. Over 4,500 miles of coastline, six
                      National Parks and Lakeshores, six
                      National Forests, seven National
                      Wildlife Refuges, and dozens of State
                      parks, forests, and sanctuaries are part
                      of this System.
                        Some of the world's largest
                      concentrations of industrial capacity are
                      located in the Great Lakes System. The
                      Soo Locks, located between the sister
                      cities of Sault Ste. Marie, Michigan and
                      Ontario, handle more tonnage of
                      commercial cargo than the Suez and
                      Panama Canals combined. Sixty-four of
                      the 1,000  power plants located within
                      the United States are situated in Great
                      Lakes coastal counties and generate 20
                      billion kilowatt hours of electricity each
                      year. Approximately 25 percent and
                      seven percent of the total agricultural
                      production of Canada and the United
                      States, respectively, occurs within the
                      ' Great Lakes System. The Great Lakes
                      System also provides recreational and
                      economic benefits from the sport
                      fisheries,  boating, campgrounds, and
                      resorts associated with it. The Great
                      Lakes System is a unique natural
                      resource affording habitat to a vast array
                      of living organisms, and inestimable
                      aesthetic beauty for the peoples of the
                      United States and Canada.
                      2. Physical Characteristics
                        The Great Lakes are divided into the"
                      Upper Lakes, Lakes Superior, Huron
                      and Michigan, and the Lower Lakes,
                      Lakes Erie and Ontario. All of the lakes
                      except Lake Michigan are binational,
                      that is, their waters are" shared by the
                      United States and Canada. Only Lake
                      Michigan is located entirely within the
                      United States.
                        In spite of their large size and
                      substantial volume of fresh water, the
                      Great Lakes are sensitive to the effects
                      of a wide range of pollutants that enter
                      the Lakes through both point and
                      nonpoint sources. The sources of these
                      pollutants include, .but are not limited
                      to, the agricultural runoff of soils and
                      farm chemicals from rural lands, city
                      wastes, industrial discharges, and
                      leachate from, disposal sites. The large
                      surface area of the Great Lakes also
                      exposes them to the direct atmospheric
                      deposition of pollutants from rain, snow
                      and dust  that settle onto the lakes'
                      surfaces.
  Lake Superior is the largest, deepest,
and coldest of the Great Lakes, and has
the longest retention time, the average
time it takes for a molecule of water to
exit the system, at 173 years. It is also
,the most pristine of the Great Lakes,
having not experienced the vast
industrial and agricultural usage of the
rest of the Great Lakes System. Lake
Michigan is the second largest lake,
with a retention time of 62 years. The
Lake Michigan basin is characterized by
sparse population in its northern
reaches and some of the most urbanized
areas in the Great Lakes System along its
southern shores. Lake Huron, with a
retention time of 21 years, is the third
largest of the lakes, and has a mixture
of industrial and agricultural areas.
Two-thirds of its watershed is still
forested.
  Lakes Erie and Ontario have
significantly smaller retention times of'
2.7 and 7.5 years, respectively, as
compared to the Upper Lakes. Lake Erie
is the smallest and the shallowest of the
lakes, and is the most susceptible to the
effects of urban and agricultural
activities. The Lake Erie basin supports
an intensive agricultural base. Lake
Ontario, the eastern-most lake,
eventually receives all of the waters
from the other lakes. The Canadian
shore of Lake Ontario is heavily
urbanized, while the U.S. side is
characterized by a lower degree of
industrial activity, and moderate
farming.
  Outflows from the Great Lakes are
relatively small (less than one percent
per year) in comparison to the total
volume of water the lakes contain.
Pollutants that enter the lakes through a
variety of pathways—by direct
discharge or nonpoint discharge into the
open waters of the Great Lakes, through
tributaries, or from atmospheric . :
deposition—are not readily flushed
from the Great Lakes System as hi a
riverine system. They can be made
relatively inaccessible to  living   ,  >  .
organisms through volatilization,, burial
in the sediments, and degradation.
Pollutants re-enter the water column ,
through resuspension of bottom
sediments, dredging, storm events, or
volatilization cycles, where they are '
once again accessible to living
organisms. These recycling phenomena
add to the overall retention time of
chemicals within the Great Lakes
System (Andre et al., 1993; Beltran,
1992; Richardson, 1993; U.S. EPA,
1989). During the periods that chemicals
remain in the lakes, certain pollutants
tend to bioaccumulate in organisms,,
becoming concentrated at levels in the  ,
organisms which greatly exceed the

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Federal^Regiiiter../"Vol..'''
 [-   .  .,  -. ...           ^:.
ay. April !€, 1993 7 Proposed Rules
                                                                                                          ".'Zi?*i,iil*"- -
                                                                                                           20807
 ambient concentrations in the open  ••-..-
 waters of the Great Lakes.     ;

 3. History of Environmental Degradation
  . Early settlement and related lecpnomic
 activities drastically changed portions of
 the Great Lakes System. The. vast tracts '.
 of timber provided materials for ship
 building, Construction, furniture and
 specialty products. Paper making from
 pulpwood developed later, with tiie
 United States and Canada leading the
•world's production. Today, reforestation
 throughout the Great Lakes System is a  •-
 critical ecosystem issue,
   Commercial fishing, began in the Great
 Lakes about 1820, and expanded
 rapidly. The largest harvests were
 recorded in 1889 and 1899 at about 147
 million tons annually. Hpwe.var.Jby .the
 1880s preferred species were on lie
 decline, and the overall value of the
 Great Lakes fishery has declined   .  .,.-
 dramatically due the predominance of
 small, relatively low value species.
 Over-fishing, pollution, stream and
 shoreline habitat destruction, and the
 introduction of exotic species have all
 contributed to the decline of the Great
 Lakes fishery.                 i >,'"--,
   Thejapid, large scale clearing of land
 for agricultural purposes caused deep
 changes in the Great Lakes Basin
 •Ecosystem. Soils stripped of vegetation
 washed away to the Lakes, clogging
 tributaries, and deltas, and altering the
 ,flows of,waterways and changing flood
 zones. Synthetic fertilizers and  .    "•-
 chemicals to .control pests were    ,
 increasingly used to enhance   v
 production. One of the earliest
 pesticides, DDT. was subsequently
 identified as causiiig reproductive
 failures in some species of birds. The
 combined use of synthetic fertilizers,
 existing sources oj nutrient-rich organic
 pollutants (such as untreated human
 wastes from cities), and phosphate
 detergents causej widespread alga)   \
 blooms, resulting in eutrophication.
   Industrialization followed the
 agrarian settlemejat of the Great Lakes.
 During this period, virtually untreated:;
 wastes were intr<|lucedinto the waters
 of the-System. Tie growing urbanization
 that accompaniejjhe industrial
 development oj the Great Lakes System
 added to the overa&legradatipn of
, water quality. Nuisanbe conditions;
 such as bacterial contamination,   .•'.-,,
 putrescence, and floating debris in
 rivers and nearshof%|ffg^i were
 increasingly commoTvTM^joine t
  occasions, these cond%ms ca^ed fatal
  epidemics of waterbornv;diseas6S Such
  as typhoid.               , -V
    Wuh the progressive deyeio^gj^
 • heavy industry, many newiheinical
  substances were introduce4uito|8
                      Great Lakes System.- Approximately
                      13,000 factories that refine petroleum:
                      and manufacture products as plastics,
                      chemicals, paints, iron, steel, cars, pulp
                      and paper are located within the Great
                      Lakes basin, including 3,800 factories  .
                      that discharge waste water directly to
                      the waters of the Great Lakes System.  •-,'
                      Most of the remaining 9,000 factories
                      discharge wastes indirectly through
                      municipal wastewater treatment plants.
                      Metals, organic compounds and other
                      substances used in industrial processes
                      have entered the-Great Lakes System
                      and continue to contribute to the overall
                      degradation of water quality. :
                      4. Environmental Problems in the Great
                      Lakes System   •'.'-.'.''             •
                      • - a. Nutrients. In the late 1960s,  .
                      growing public concern about the
                      deterioration of water quality in the   :
                      'Great Lakes stimulated increased
                    '  research into the causes of .     :
                      environmental degradation. For,.  :
                      example, increased nutrients to the
                      lakes had dramaticaily stimulated the
                      growth of green plants and algae.
                      Decomposition of these organic  .-
                      materials resulted in decreased levels/of
                      dissolved oxygen.in bottom waters.-This
                      process, called eutrophication, had
                      become increasingly common in
                      shallow bays throughout the Lakes, and
                      Lake Erie in particular. As oxygen levels
                      continued to drop, certain species of
                      insects and fish, such, as mayflies, trout
                      and walleyed pike were essentially
                      displaced frpnraffected areas of the
                      Great Lakes Basin Ecosystem^ Pollution •
                      tolerant species, requiring less oxygen,
                      such as sludge worms and carp,
                      replaced the original species. Lake-wide
                      changes in the type of bottom-dwelling
                      organisms and nsh,*as well as in species
                      of algae, were good indicators of overall.
                      oxygen depletion in the lakes.
                        Environmental managers determined
                      that a lakewide approach was necessary
                      to adequately control the problems
                      caused by accelerated eutrophication.
                      By the late 1960s, United States and
                      Canadian regulatory agencies were in
                      agreement that limiting the loadings of
                      phosphorus was the key to controlling
                      excessive algal growth aridi therefore,
                      chronic eutrophication. An effluent
                      limit of one ug/L of phosphorus was
                      imposed on all major (greater then 1  .
                      million gallons per day) municipal
                      sewage treatment facilities in the Great
                      Lakes basin. Some States took      . .
                      additional steps, such as limiting the
                      phosphorus content in household
                      detergents, to cut phosphorus
                      discharges to the Great Lakes. In the late
                      1970s, the United States and Canadian
                      Governments undertook the
                     "development of phosphorus budgets for
                 each lake considering point source
                 loadings and nonpoint source runoff
                 loadings.   "             "  •:'.•""-•'-'-
                •   As aresiilt of all of these efforts, open.
                 lake phosphorus concentrations-have'•
                 declined. To date, phosphorus loadings
                 from municipal sewage treatment
                 facilities have been reduced by an
                 estimated,80 to 90 percent. These
                 reductions have resulted in dramatic
                 improvements in nearshore water
                 quality and measurable improvements
                 in open lake conditions. For Lakes     '
                 Huron, Michigan and Superior,
                 phosphorus concentrations have
                 historically been near or below
                 established targets. In Lakes Erie and.
                 Ontario, phosphorus concentrations
                 were more than twice'the target values
                 in the early 1970s, but have been
                 reduced to levels at or below the targets
                 since thelate 1980s. At this time, the
                 United States is meeting Its;phosphorus
                 load commitments for each lake. Over
                 the long term, oxygen depletion rates
                 have :declined, with the rates of  • v
                 depletion for recent years among the
                 lowest reported.              :  '
                  ; EPA and the Great Lakes States *
                 recognize that existing efforts to ,
                 maintain or further reduce phosphorus
                 loadings must continue. The proposed
                 Great Lakes Water Quality CJuidahce •   ,,
                 does not expressly address phosphorus
                 loadings to the Great Lakes, however,
                 because separate  ongoing programs have
                 been established to address this issue.
                   b. Toxic Substance?. Toxic     '    ,
                 contamination of the Great Lakes     .
                 System has significantly impacted the
                 environment both in and around the ..
                 lakes, and the health Of the aquatic life,
                /wildlife and humans that depend upon
                 the lakes for food and drinking water.
                 Toxic pollutants,'including metals and:
                 man-made organic chemicals, can be
                 acutely poisonous in relatively small
                 amounts and can be injurious, through  .
                 chronic exposure, in minute -     :
                 concentrations. Many contaminants
                 present in the Great Lakes System have
                 the potential to increase the risk of  •;
                 cancer, birth defects, genetic mutations
                 and reproductive impacts through long-
                 term exposure. Adverse impacts on fish,
                 bird, aiid mammal populations in the
                 Great Lakes associated with the effects
                 of toxic chemicals include: Cancer,
                 death, eggshell thinning, population
                 declines, reduced hatching success,
                 abnormal behavior (such as      : .
                 abandonment of nests), infertility, birth
                 defects (such as crossed beaks and club  :
                 feet) and ilhiesses such as chick edema.:
                 They also include less visible effects on,
                 body chemistry, including abnormalities
                 in the thyroid, liver and endocrine;
                 systems..    •  !  ,      •        • .  --,...

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 20808
Federal Register / Vol. 58, No. 72  / Friday,  April 16,  1993 / Proposed  Rules
   Onca introduced into the Great
 Lakes—whether by point sources,
 atmospheric deposition, contaminated
 sediments, ground water, or surface
 runoff—some toxic substances have
 physical, chemical, or biological
 properties that make the chemicals
 persist for extended periods in the
 aquatic environment without degrading
 or otherwise disappearing, and
 bioaccumulate through the food chain of
 tho Groat Lakes System. While the
 concentrations of these chemicals in
 water may be so low as to be
 undatectable by available analytical
 techniques, persistence and
 bloaccumulation can increase the levels
 of these contaminants to toxic
 concentrations. These persistent
 biotccumulative toxic chemicals are of
 particular importance to the Great Lakes
 Basin Ecosystem due to the long
 retention times of the individual lakes
 and the cycling of toxics from one
 component of the ecosystem to another.
   Several characteristics of the Great
 Lakes result in their being particularly
 susceptible to relatively nondegradable.
 lipophilic chemicals. These
 characteristics include: (1) Long
 hydraulic retention times (relatively
 cfosod systems); (2) low biological
 productivity; (3) low suspended solids
 concentrations; (4) great depth; and C5)
 tho presence of self-contained fish and
 wildlife populations dependent on the
 Groat Lakes System for their water and
 food supply. Taken together, these
 characteristics result in such pollutants
 remaining in the system for long periods
 of time and bioaccumulating in fish and
 Wildlife at concentrations which are
 orders of magnitude above ambient
 concentrations in the water column.
  Physical transport is one pathway by
which pollutants are removed from the
 Great Lakes Basin Ecosystem. Because
 of ths long hydraulic retention times of
 tho Great Lakes, however, downstream
 transport of pollutants is not a
 significant pathway of removal, and as
 discussed below, long retention times
 are but one of several attributes which
result in recycling and prolonged
recovery rates for the Great Lakes. The
hydraulic residence times for the Great
Lakes, based on present diversion rates,
range from 2.7 years for Lake Erie to 173
years for Lake Superior.
  Tho main processes which account for
loss of a pollutant from the active
compartments of the lakes are burial,
 degradation, volatilization and
ndvecUon (or diffusion) out of the
watershed. Of these processes, the
 settling and subsequent burial of many
persistent particulato-associatod
pollutants is believed to be a greater  .
factor in the removal of the pollutants
                      from the water column in the deeper
                      Great Lakes than is advection,
                      degradation and volatilization.
                      However, recent evidence from Lake
                      Superior also strongly implicates
                      volatilization as a major pathway for the
                      removal from the water column of some
                      PCB congeners (Eisenreich, 1992).
                        Hydrophobia pollutants preferentially
                      sorb to biotic and abiotic particles in the
                      water column. Both types of particles
                      will sink and transport pollutants to the
                      bottom sediments. Because of their low
                      biological productivity, however, the
                      Great Lakes are very efficient at cycling
                      nutrients and carbon^ Therefore much, if
                      not most, of the pollutant mass
                      associated with biotic particles is either
                      consumed by higher trophic levels and
                      bioaccumulated up the food chain, or is
                      released back to the water column as
                      these particles are degraded by bacterial
                      action. Pollutants sorbed to abiotic
                      particles may reach the bottom
                      sediments, but this is a slow process
                      ranging from months to years due to the
                      low suspended particulate
                      concentrations and net sedimentation
                      rates. Particles which do reach the
                      bottom sediments are subject to
                      lesuspension resulting from storm
                      events and other disturbances.
                        The affinity of many organic
                      pollutants for binding onto suspended
                      particles is well established. Partition
                      coefficients (K
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                Federal Register-'./ Vol.  58,  No. 72  /  Friday,  April 16, 1993 / Proposed Rules      \  20809
example, data from mass balance
studies and inventories in the Great
Lakes System indicate that there is a .
significant reservoir of PCBs in the soils
and sediments that will continue to
release PCBs into the environment at   ,
significant rates for decades (Aiidre et
al., 1993; Beltran, 1992; Richardson,
1993; U.S. EPA, 1989). While   ,   ',
concentrations of persistent,
bioaccumulative pollutants may
eventually decline, for the Gre,at Lakes,
the rate of decline will occur much
slower than in systems with lower
hydraulic retention times or more
productive systems with greater
sedimentation loading rates. Once
released to the Great Lakes Basin
Ecosystem, toxic substances that are
slowly degrading and bioaccumulative
will cycle within the system for
decades, exerting biological effects and
presenting relatively high levels of risk
to aquatic life, wildlife and humans
which inhabit the basin. An example of
a pollutant class that is highly persistent
and bioaccumulative is polychlorinated
biphenyls (PCBs), which have estimated
 half lives for biological degradation of
 months up to several yearsj:and which.
.bioaccumulate in, the food chain to
 levels 1,800,000 times the concentration
 in the water column (Eisenreich et al.,
 1989; Ballschmitter et  al., 1989).
 Continued or new inputs of such
 pollutants serve to exacerbate
 impairments of beneficial uses.
   The rapid decline of PCB  :
 concentrations in lake trout from Lake
 Michigan during the latter half of the
 1970s reflects the relatively rapid
 response of the  water column to . •.'
 decreases in loadings. Hydraulic
 transport of the pollutant from Lake
 Michigan, with a hydraulic residence
 time of 62 years, into Lake Hurbn has   ,
 -little effect on PCB,concentrations in the
 water and fish. Rather, internal     -
 responses and processes that operate in
 the Great Lakes  because of their depth
 and long hydraulic residence times
 control the pollutant concentrations in
 response to loadings.     •
•   PCB concentrations in Lake Michigan
 lake trout declined from a maximum of
 22.9 mg/kgin 1974 to 5.6 mg/kg in 1982
 (DeVault, et al., 1986; DeVault, 1993a};
 (Figure 1-1). The pattern of decline
 through 1982 is consistent with.first.:
 order kinetics calculations (DeVault et
 al., 1986). Beyond 1982, however, the
 observed PCB concentrations in fish
 tissue collected in 1984,1988, and 1990
"are significantly higher than levels
 predicted by first order rate constants
 calculated from the 1974-1982 period
 (DeVault, 1993a). Thus, while PCB
 concentrations are still declining  ••'"•
 through 1990, the rate of decline is    '.
 slowing and may be leveling off,
 resulting in concentrations continuing   •
 well above water quality criteria.     "
 Studies on biodegradation indicate that
 the most highly chlorinated (least toxic)
 forms'of PGBs-are degraded first, leaving
 the most toxic forms behind; Laboratory
 experiments designed to provide
 optimal conditions for microbial activity
 have not been able to achieve complete
 PCB dechlorination, suggesting that the
 remaining forms of PCB may persist   ,
 indefinitely (Adler et al., 1993).
 BILLING CODE 6560-5W>

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 20810       Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
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                Federal Register / Vol. 58, NO. 72 7 Friday,  April 16, 1993  /Proposed Rules
                                                                    20811
  The slowing in the rate of decline of
PGBs in fish tissue is also supported by
coho salmon data (DeVault et al., 1988;
DeVault, 1993b) (Figure 1-2). Because
coho are stocked; and are in the lake for
only 18 months, they respond much
faster to changes in water column    .
concentrations than lake trout, which
have an average life span of 6 years. PCB
concentrations in coho salmon have
been relatively constant in all the Great
 Lakes since the mid 1980s, with the
'exception of a general decline in Lake
 Ontario (DeVault et al., 1988; DeVault
 1993b). A similar situation can be seen
 for PGBs in Lake Superior lake trout
 (FigureI-3).                        .
  Patterns of decline in DDT
 concentrations in Lake Michigan lake
 trout are shown in Figure 1-4, Data on
 concentrations of DDT in coho salmon
 across all the lakes are shown in Figure
1-5 (DeVault et al., 1986; DeVault et al.,
1988; DeVault, 1993a; DeVault, 1993b).
The DDT levels in coho salmon are
below levels corresponding to 10^5 ."'..-
mortality risk in all lakes except Lake
Ontario. For lake trout, the DDT level in
1990 was substantially above the level  •
corresponding to the 10-5 risk level.
BILUNG CODE 6580-SO-P

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20812
          Federal Register / Vol. 58, No. 727 Friday, April 16, 199$ / Proposed Rules
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           Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
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               Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 7 Proposed "Rules
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 BILLING CODE 656Q-50-C

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20816
Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
  Thoso substances appear to ba
approaching equilibrium in the Great
Laics System at unacceptably high
levels due to continuing loadings from
a variety of sources, such as: (1)
Historically contaminated sediments in
the embayments as well as the open
lakes; (2) tributary inputs resulting from
                      point sources, spills and direct runoff
                      from urban and rural areas, and/or
                      resuspension from contaminated
                      sediments; and (3) atmospheric
                      deposition of pollutants. Concentrations
                      measured in 1990 for PCBs and
                      chlorinated pesticides exceed the fish
                      tissue concentrations that correspond to
current EPA 304(a) water quality criteria
by several orders of magnitude (Table I'-
ll (DeVault 1993a). If a new equilibrium
is being reached given  current mass
loadings, then substantial further
reductions in mass loadings to the lakes
will be necessary to eliminate fish
advisories.
TABLE  M.—COMPARISON OF  RECENT  MEASURED FISH TISSUE  CONCENTRATIONS  IN  LAKE MICHIGAN  LAKE TROUT AGAINST
    CALCULATED FISH  TISSUE  CONCENTRATIONS  CORRESPONDING  TO  CURRENT  EPA  SECTION  304(A) AMBIENT WATER
    CRITERIA AT 10-J RISK LEVEL.                                                           '
Substance
PCBs 	 	 	 	
• : ,,'"'*' "" V . ' ; ' '"
DOT/DDE 	 	 	 	 	 	 ............1.
Cblcxdant 	 	 .. 	 « 	 	 	 	 	 .!.........„. 	 .„......„„
Djekjrfn .. 	 „ 	 	 	 ..........

1990 measured fish tis-
sue concentration (mg/
kg) (mean and 95% con-
fidence interval)
' 2.72
(2.45-2.99)
1,39
(1.20-1.58)
0.44
. (0.36-0.52)
0.198
(0.16-0.20)
Calculated fish tissue
concentration (mg/kg)
corresponding to 304(a)
criteria
0.014
0.316
0.083
0.0067

  Source: DoVauit, et a)., 1906; DeVault, 1993a.
  Within the Great Lakes basin, an
ecosystem approach to environmental
management has been adopted by U.S.
and Canadian agencies whereby
physical, chemical and biological
aspects of the aquatic system are
considered concurrently, rather than in
isolation. This approach is dictated
largely due to the closed nature of the
Great Lakes Basin Ecosystem. As noted
above, persistent bioaccumulative
pollutants tend to remain within the
system for long time periods, recycling
among various compartments (e.g.,
water, sediment, biota). As a result, the
residence time of the pollutants may be
several times longer than life spans of
oven relatively long-lived species, such
as lake trout and fish-eating birds. This
is in contrast to other aquatic systems
(e.g., small lakes, rivers, or marine
coastal areas) where once the pollutant
load to the system is stopped the
pollutants are generally removed from
the system relatively quickly through
such mechanisms as hydraulic transport
out of the watershed, dilution through
tidal effects, or burial because of high
productivity and high sedimentation
rates. Thus, in such other aquatic
systems pollutants are not present in the
ecosystem long enough to affect
successive generations of the biota (i.e.,
the pollutant is removed within one life-
cyclo of the top predators). Three
examples illustrate the uniqueness of
the Great Lakes Basin Ecosystem in this
regard: Lake trout, colonial birds, and
bold eagles.
                        In the Great Lakes, the lake trout is
                      the classic example of a key species,
                      fundamentally important to the
                      naturally-evolved aquatic community.
                      Lake trout are very long lived (some live
                      longer than 25 years), and while their
                      •populations have been devastated by
                      overharvesting and the introduction of
                      the sea lamprey, these fish are also
                      being subjected to a variety of
                      impairments from toxic pollutants.
                        Past evidence indicates ambient levels
                      of PCBs hi the Great Lakes could impair
                      reproduction in lake trout. When nine
                      groups of lake trout fry were exposed for
                      six months to concentrations of PCB
                      and/or DDE similar to that hi water and
                      zooplankton in Lake Michigan in 1975,
                      mortalities in the nine exposed groups
                      were 40.5 percent to 114 percent greater
                      than hi the control group. These data
                      suggest that if lake trout had spawned
                      successfully hi Lake Michigan in the
                      mid-1970's, nearly twice as many of the
                      fry would have died within the first 6
                      months than if no pollutants were
                      present. However, more recent efforts to
                      estimate the extent to which fish yields
                      (i.e., harvestable catches) are being
                      compromised by present levels of
                      pollutants in the Great Lakes System are
                      inconclusive. Most biological
                      consequences of fish exposure to
                      pollutants have been measured at the
                      physiological or organism  level rather
                      than the population level,  so it is
                      difficult to determine the extent to
                      which current pollutant concentrations
                      hi the Great Lakes may be inhibiting the
ability of this species to re-establish .
viable, self-sustaining populations.     ;
  Several fish-eating bird species are at
greater risk from exposure to pollutants
in the Great Lakes than in other aquatic
systems because their foraging range is
entirely within the Great Lakes basin for
all or part of each year. Species of fish-,
eating birds known to be affected by
pollutants in the Great Lakes include
the double-crested cormorant, black-
crowned night heron, osprey, herring
gull, common tern, Forster's tern, and
bald eagle. Colonial waterbirds of the
Great Lakes have been shown to
bioconcentrate pollutants from their
food (i.e., fish) 20 to 30 fold.
  The Forster's tem, designated as
threatened or endangered, is sensitive to
PCBs, chlorinated dioxhis and furans,
and is limited to marshy embayments
such as  Green Bay, Saginaw Bay and
Lake St. Clair (all of which are
experiencing problems with
bioaccumulative organic pollutants), hi
a comparative study of Forster's terns
colonies on Green Bay (Lake Michigan)
and Lake Poygan (a relatively
uncohtaminated lake approximately 50
miles from Green Bay, but still in the
Green Bay watershed), the Green Bay
colonies were severely stressed by toxic
pollutants. The median equivalents of
TCDD (2,3,7,8-tetrachlorodibenzo-p-   .
dioxin)  were almost 11 times greater in
tern eggs from Green Bay than Lake
Poygan  (2175 versus 201 pg/g); the -
hatching success of sibling eggs was 75
percent lower at the Green Bay colonies;
hatchlings from laboratory incubations

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                 Federal Register'-/'.Vol. 58, No. 72  / ffriday, April liB, 199377 Broposed Rules          20817
 of .Green Bay eggs weighed
 approximately 20 percent less than  :
 those from Lake jPoygan; and the ratio of
 Uver weight to total weight was 26
 percent greater. Also, nest abandonment
 and egg disappearance were substantial
 at .Green Bay, but not at Lake Poygan.
   The bald eagle is one of the most
 highly visible symbols of the effect of
 toxic pollutants in the'Great Lakes
 basin. The total number of active nests •
  along the Great Lakes shoreline in '  :
  Wisconsin and Michigan in 1970 was
 ' only five, compared to an estimated   .
  density of one pair per every 8 to 18 km
  of shoreline before European settlement
  Between 1961jand 1970, shoreline nests
  in these states were successful only 10
  percent of the time, with an average
  reproduction of only 0.14 fledgling per
  nest, compared to stable, inland
  populations with 50 percent success
  rates and an average of 0.7 young per
  nest. Declines of bald eagle populations
  in the Great Lakes states were associated
  with a thinning of egg shells of at least
  12 percent. Furthermore, significantly
  greater concentrations of PCBs.DDE,
  and dieldrin were found in eagle eggs
  along the Great Lakes shoreline between
  1969 and 1986 than in eggs from inland
  nests (Table 1-2).
        TABLE 1-2.-—CONTAMINANT GoNCENTRAtipN (PPM) IN BALD EAGLE EGGS FROM GREAT LAKES SHORELINE NESTS AND
                            ,;  '   .       .       FROM INLAND SITES        ,  ,      •-'.-.       .   .
: Nest site ,
L Superior ................ 	 - 	 ......;..-.............
Wisconsin .............. ..,......,......~........... ................
Inland ...................-.....-....-.........—.... ...............
L Erie ................ 	 i.™...... 	 .. 	 „„..„....„„
Michigan 	 	 ......i..».........,~ 	 ....... 	 ..
Inland ......... ......................................
Years
'69-'82
'86
• '68— "85
• 'SB
'76-'85
.\ '• '86
'BS-'fld
'86
PCS
e o_on 7
12.9-14
« Q*}A R
IP A—11 fV
•ic n_eo.A.
8.6-44.0
It*— A A f\
2.0^29.0
DDE

it./— oy.o
2.4-S.5
.1—53
U.*m- 2.7
-,. O.B— 2O.5
25-10.0
, l^J-rl4iO
i.i-mo
Dieldrin

0.42-1.1
0.18-0.51
0.20-0.79
0.06-0.09
0.53-1.7
0.25-0.69
0.14-1.6
• •'• " 0.08-0.9
   Recent surveys have shown a general
 improvement in inland populations of
 bald eagles in Michigan, Wisconsin and
 Minnesota, and some eagles have re-   '•
 established nests along the Lake
 Superior shore and sporadically
 produce fledged young. In recent years,
 eagle populations have expanded along
 the Canadian Lake Erie shoreline, with
 some breeding success^reflecting the \ •
 reduced concentrations of  _•
 organochlorine pesticides in Lake Erie
 fish and waterfowl. No nesting attempts
• have been recorded along the lake
 Ontario shoreline, however. Nesting
 rates in the Great Lakes basin iag still
 lagging well behind inland populations.
 This is indicative of the continuing
 elevated concentrations of persistent  ':
 bioagcumulative pollutants in the fish
 and wildlife on which bald eagles feed
 in the Great Lakes basin.      -^
   The Great Lakes States have issued
 709 fish consumption advisories that are
 currently in effect for waters within
 their boundaries, including waters of   '
 the Great Lakes, Great Lakes tributaries,
 and waters outside the Gigai Lakes
 drainage basin. Pollutants.foivrhich.
•these fish advisories exist incln|e 8 of
 the 28 bioaccumulative chemicals of
 concern identified in the proposed
 Guidance. If a potential local hiealth
 threat exists due to the consumption of
 sport-caught fish, a State pCchoose to
 issue warnuigs or provide guidance on
 the quantity and type of contaminated  %
 fish which may be consumed. The Great
 Lakes States in-general issjje&'i
 contaminant  advisories whicliHre.based
. on a system incorporating and 'weighing
• such factors as the type of contaminants
 found in Great Lakes fish flesh,
 contaminant levels:to fish of vfflious
 sizes and species, the Apical
 consumption rates of sport-fishers, an
 evaluation of the human health risks
 due to potential impacts. Fish advisories
 in the Great Lakes system are discussed
 further ini section ILG.ll below,
; B. Great Lakes Water Quality Agreement

 1. History of the Great Lakes Water
 Quality Agreement            ,

   The concept of an ecosystem ,,
^approach to the management of the '    :
 Great Lakes evolved from the better
 understanding of how environmental
 damage has resulted from human use of
.the natural resources of the Great Lakes
 System. The research, monitoring and
 regulatory prbgrams of the United States
 and Canada illustrate the connections
 between the use of land, air and water
 resources and the need to consider the
 impact of pollutants on the entire Great
 Lakes Basin Ecosystem. Because of
 mutual concerns about the protection
 and use of shared waters, the
 governments of the United States and
 Canada have created institutions to   •
 foster the joint environmental  .'"; ''
 management of the. Great Lakes.  .
   a. The Boundary Waters Treaty of
 1909, In. 1905, the International'
Waterways Commission was created to -
advise the governments of the United
States and Canada on water levels and
flows ia the Great Lakes, especially in
relation to the generation of electricity
by hydropower. However, the
Commission's limited advisory powers.
.proved inadequate for problems related
 to pollution and.environmental
 management. The Boundary Waters
 Treaty, signed in 1909, provided for the
 creation of the International joint
 Commission (IJCj, \vith the authority to
 resolve disputes over the use bf water
 resources fliat crossed the international
 boundary of the two countries. Since '
 then, inost of the IjC's,actions have been
 devoted to regulating[Water flows,   •
 earrying out studies requested by the ,
 United States and Canadian
. governments; and advising the •      •
, governments regarding pollution-related
/problems.    :    -;
   Water pollution was one  of the first
 problems referred to the IJC for study in
 1912. The  IJC concluded in 1919 that
 water quality problems in the Great •
 Lakes System were of a serious nature
 and required further pollution control
 on the part bf both countries to resolve,  :
 While no new treaty agreement was
 signed, the United States and Canada
 each subsequently established water
 pollution control programs covering a -
 range of activities. Additional studies in
 the 1940s led the IJG to advocate *
 establishing narrative water quality •->
 objectives  for the Great Lakes and the
 creation of technical advisory boards to
 monitor Great Lakes water quality.
   During the 1950s  and 1960s, problems
 on the Great Lakes reached a: critical- '
 juncture. In 1964^ the IJC began a new
 reference study oa pollution iii the
 Lower Lakes. The 1970 reference study
report identified excessive phosphorus
 loadings as the principal cause of
.eutrophicatioaand proposed system-
wide efforts to reduce phosphorus •  , --;
 loadings from all sources. The ^C also

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20818
Federal Register / Vol. 58. No. 72  / Friday, April 16, 1993  /  Proposed Rules
urged the United States and Canadian
governments to establish uniform
effluent limits for all industries and
municipal treatment systems in the
Groat Lakes System. The conclusions of
the reference study prompted the
United States and Canada to negotiate a
now, comprehensive agreement on the
environmental management of the Great
Lakes in the 1972 Great Lakes Water
Quality Agreement.
  b. The 1972 Great Lakes Water
Quality Agreement. The Great Lakes
Water Quality Agreement, signed by the
United States and Canadian
Governments in 1972, established
common water quality objectives for the
Great Lakes System. Despite complex
jurisdictional problems, the basic
premico of tho 1972 Agreement was that
binational management of the Great
Lakes by tho United States and Canada
could effectively protect the Lakes from
further adverso effects of pollution. The
1972 Agreement addressed overall
pollution and water deterioration in the
fiva lakes, with an emphasis on
controlling excessive nutrient loadings.
Each country agreed to implement
pollution control actions within its own
statutory framework in order to fulfill"
tho requirements of the binational
agreement. Tha chief objective was the
reduction of phosphorus levels to no
more than 1 ppm in discharges from
larga municipal sewage treatment plants
into Lakes Erie and Ontario. New limits
were also placed on industrial
discharges. Other objectives of this
process included the elimination of oil,
visible solid wastes and other nuisance
conditions. Both countries established
Great Lakes research programs, along
with programs for cooperative and
separate efforts. The 1972 Agreement
also contained commitments for joint
international surveillance and
monitoring programs, coordinated
through the regional office of the IJC.
Thesa programs focused on freshwater
chemistry and reporting the
concentrations of ambient pollutants.
  In 1977, tho Parties assessed the
progress in meeting the binational
objectives, and determined that total
discharge of nutrients into the Lakes
had been noticeably reduced. Man-made
outrophication, bacterial contamination
and the more obvious nuisance
conditions in rivers and nearshore •
waters had declined. However, new
environmental problems involving toxic
chemicals were identified through the
Great Lakes research programs and the
joint United States and Canadian
surveillance and monitoring programs.
Additionally, an Upper Lakes study
concluded that phosphorus objectives
                      should be set for Lakes Huron, Michigan
                      and Superior.
                        c. The 1978 Great Lakes Water
                      Quality Agreement. In 1978, the United
                      States and Canada signed revisions to
                      the Great Lakes Water Quality
                      Agreement that preserved the basic
                      features of the preceding 1972
                      Agreement while building on its
                      achievements. Like its predecessor, the
                      1978 Agreement called for establishing
                      common water quality objectives,
                      improving pollution control throughout
                      the System, and continued monitoring
                      by the IJC. The Agreement shifted the
                      focus from solely the control of
                      nutrients to include the control of toxic
                      substances, calling for the virtual
                      elimination of the discharge ,of
                      persistent toxic chemicals. Persistent
                      toxic chemicals which bioaccumulate
                      can be particularly hazardous to aquatic
                      life, wildlife, and humans. To further
                      improve pollution control, the 1978
                      Agreement also set target loadings for
                      phosphorus in each Lake.
                        In recognition of the need to develop
                      an integrated ecological approach, and
                      in contrast to the previous Agreement
                      which called for the protection of the
                      waters of the Great Lakes, the Parties to
                      the 1978 Agreement expanded the area
                      of focus to the Great Lakes Basin
                      Ecosystem, calling for the restoration
                      and maintenance of the chemical,
                      physical and biological integrity of the
                      waters of the Great Lakes Basin
                      Ecosystem. The Great Lakes Basin
                      Ecosystem is defined as the interacting
                      components of air, land, water and
                      living organisms, including humans,
                      within the drainage basin of the St.
                      Lawrence River at or upstream from the
                      point at which this river becomes the
                      international boundary between Canada
                      and the United States (Article I).
                        d. The 1987 Amendments to the Great
                      Lakes Wafer Quality Agreement. Article
                      X of the 1978 Great Lakes Water Quality
                      Agreement (GLWQA)  required the
                      United States and Canada to conduct a
                      comprehensive review of the Agreement
                      following each third biennial report of
                      the IJC. Following independent reviews
                      in 1987, the United States and Canada
                      mutually  agreed to initiate joint •
                      negotiations to revise  the GLWQA. The
                      negotiations centered on the
                      advancements made in science and
                      technology since 1978, and the need to
                      clarify the roles of the two governments
                      and the IJC. The primary terms of the,
                      current GLWQA are discussed in
                      section B.2, below.

                      2. Major Provisions of the Great Lakes
                      Water Quality Agreement
                        The goal of the current Great Lakes
                      Water Quality Agreement is to restore
and maintain the chemical, physical
and biological integrity of the waters of
the Great Lakes Basin Ecosystem. To
achieve this purpose, the United States
and Canada, as Parties to the
Agreement, committed to using
maximum efforts to develop programs,
practices and technologies necessary to
gain a better understanding of the Great
Lakes Basin Ecosystem, and to eliminate
or reduce to the maximum extent
practicable the discharge of pollutants
into the Great Lakes System. Consistent
with the provisions of the GLWQA, it is
the stated policy of the Parties that:
  a. The discharge of toxic substances in
toxic amounts be prohibited;
  b. The discharge of persistent toxic
substances be virtually eliminated; and
.  c. Coordinated planning processes
and management practices be developed
and implemented by each jurisdiction to
ensure adequate control of all sources of
pollutants.
  The GLWQA contains both narrative
and numerical objectives for the
protection of the waters of the Great
Lakes System. The General Objectives in
Article ffl are narrative statements
consistent with  those in effect in all
States, which'provide that the waters of
the Great Lakes  System should be free -
from substances that, for example,  -
interfere with beneficial uses, or
produce conditions that are toxic or
harmful to human, animal or aquatic
life.
  Article IV, Annex r contains narrative
and numerical pollutant specific
objectives that represent the minimum
levels of water quality  desired in the
waters of the Great Lakes System. They
are not intended to preclude the
establishment of more  stringent
requirements on the part of either the
Parties to the Agreement, or the States
or Provinces, and are regarded as
interim objectives which the Parties
intend will be revised and
supplemented over time, hi areas where
the General or Specific Objectives of the
Agreement are not being met due to
human activity, the United States and
Canada agreed to identify and work
toward the elimination of Areas of
Concern, Critical Pollutants, and Point
Source Impact Zones pursuant to Annex
2.
  Article V sets forth provisions for
water quality standards, other regulatory
requirements and research. Water
quality standards and other regulatory
requirements of the two governments  • .
are to be consistent with the
achievement of the General and Specific
Objectives. The  United States and
Canada also agreed to use their best
efforts to ensure that water quality
standards and other regulatory       - ".•

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                 Federal Register / Vol. 58,>No. 72 / Friday, AprillS, 1993 7 Proposed Rules
                                                                     20819
 requirements.of the State and Provincial
 Governments are .similarly consistent
•'withthe achievement of these
 Objectives arid to establish research
 priorities for the Great Lakes In      -,.
 accordance with'Annex 17.
   Article VI .provides that the tJirited
 States and Canada, in cooperation with
 State and Provincial Governments, will
 continue to develop and implement
 programs and other measures to fulfill
 the purpose and objectives of the
 Agreement Seventeen problem areas are
 specifically identified, including
 pollution from municipal and 'industrial
 sources, eutrophication. shipping and
 dredging activities, .airborne toxics and
 remediation activities.              •'"
   Article Vn outlines the powers,
 responsibilities, and functions of the
 IJC. Article VIII provides for the    -;
 establishment of the Great Lakes Water
 Quality Board and Science Advisory
 Board to help the IJC perform its
 functions.under.the Agreement Articles
 IX through XV outline further roles and "
 responsibilities for the IJC, United States
 and Canadian Governments, and State  *
 and Provincial Governments.
   Seventeen Annexes to the Agreement
 contain additional provisions adopted'
 by the United States and Canada. Annex
 1 provides specific numerical and
 narrative objectives for identified
 chemical, physicaly microbiological and
 radiological conditions. These
 Objectives to protect the recognized
 most sensitive use in all waters of the
. Great Lake& were based on information.
 available at the time of adoption on
 cause-effect relationships between
. pollutants and receptors. Additional,
 specific ecosystem objectives and
 indicators were adopted for Lake
 Superior, Ecosystem objectives and-
 indicators will also be developed in the
 future for Lakes Erie, Huron, Michigan  •
 and Ontario. Annex 2 provides for the
 development and implementation of
 Remedial Action Plans (RAPsj sand '
 Lakewide Management Plans (LaMPs) to
 address pollution problems associated
 with 14 identified use impairments in
 nearshore and open lake .waters. The
 development of RAPs and LaMPs
 pursuant to this Annex is discussed
 further in sections I.G.3. and I.G.4. of
 the preamble below. The provisions of
 Annex. 3 seek to minimize
 eutrophication problems and.prevent
; degradation with regard to phosphorus
 in the boundary waters of |he Great
 Lakes System by setting phospaorus
 load reduction targets. The achievement
• of these load reduction targets was
 discussed in section I.A.4.a. :ab'6ye. The
 remaining Annexes address a wide
 range of issues including discharges of
 pollutants from vessels; pollution from
 shipping sources; dredging; discharges
 frorn onshore and offshore facilities;
 joint contingency planning; hazardous
 polluting substances; surveillance and
; monitoring; persistent toxic substances;
 pollution from non-point sources;
 contaminated sediment; airborne .toxic
 substances; pollution frorn
 contaminated groundwater; and
 research and development activities,
   The United States and Canada, meet .
 twice each year to discuss the state of
 the Lakes and report to the public
 regularly on the progress of their Great
 Lakes cleanup efforts. Pursuant to the
 Agreement, the governments complete
 technical and progress reports by
 specified schedules and submit them to
 the IJC for evaluation and comment.

 3. Implementation of the Great Lakes
 Water Quality Agreement
   a. The International Joint   ; .
 Commission. The International Joint
 Commission (IJC) was established by the
 Boundary Waters Treaty of 1909; and is
 composed of six Commissioners, three
 each appointed by the Prime Minister of
 Canada and the President of the United  "
 States. The IJC. does irot function as a
 separate national delegation, but as a
 single body seeking common solutions  '.
 to me joint interests of the two
 countries. All Commissioners are
 expected to act independently of their
 respective national concerns.
  The IJC has three primary     ;
 responsibilities for lie Great Lakes
 outlined under the original 1909 Treaty:
 The limited authority to approve
 applications for the use, obstruction or
 diversion of boundary waters on either
 side of the border that would affect the
 natural level or flow of either side; to
 conduct studies of specific problems
 under request from title United States;
 and Canadian Governments; and to
 arbitrate specific disputes which may,
 arise between the two governments in
 relation to boundary waters. Upon
 approval of both Parties, any matters of
 difference may be referred to the IJC for
 a final decision.      :   •  •         .
  In addition to these specific powers,
 proscribed to the IJC under the 1909,
 Treaty, the IJC monitors progress in
 achieving the goals of the Great Lakes .
 Water Quality Agreement. Two standing
 advisory boards, the Water Quality
 Board and the Science Advisory Board,
 assist in collecting, analyzing and  '
 distributing data, and coordinating the
 implementation of approved actions   :
between the cooperating governmental
 agencies.                      ,
  The Water Quality Board is the
 principal advisor to the IJC and consists
mainly of senior staff from the Federal,
 State and Provincial control; agencies ;
  selected equally from both countries.
  The Water Quality Board is responsible
  for promoting the coordination of Grea*
  Lakes programs among the different
  levels ofgovernmentand' ad vising the
  Commissioners on major issues. The    "
  Science Advisory Board consists      '
  primarily of government and academic  .
  experts who advise theWater Quality
  Board and the IJC on scientific findings
  andxesearch needs. Both have special
  committees, task forces and work'groups
  to address specificissues.
   b. Provisions for Consultation and
  Review. Under Article IV and Annex I,
  the Parties committed to the
  development pi" Specific Objectives
  designed to protect the most sensitive
  use in the Great Lakes waters. These
  standards, referred to as,"Specific
  Objectives" under the Agreement, were
  intended by the United States and
  Canada to represent "the'minimum
  levels of water quality desired to the
  boundary waters of the Great Lakes
  System." A number of Specific
:  Objectives have been developed jointly
  by the United States and Canada,
  including narrative and numeric criteria
  for persistent toxic substances, non-
  persistent toxic substances, and other
  conventional pollutants. The       ; •
  Agreement, however, recognizes that
,  consistent with the policy of virtual
  elimination of persistent toxic
  pollutants set forth in the Agreement,
  these Specific Objectives should :be
'. recognized only as "interim measures."
   The Agreement requires the Parties,
  along with State and Provincial
' governments, to consult and, as
  necessary, establish additional Specific
  Objectives under Annex 1 or modify
  existing ones. Article X of the GLWQA
  provides for the modification of existing
  Objectives and the adoption of new
  Objectives, the modification or
  improvement of programs and joint
  measures, and the amendment of the
  Agreement or aiiy of its Annexes*
  Article X also requires the Parties: to
  conduct a comprehensive review of the
•  operation and effectiveness of the
•  Agreement and to evaluate progress in
  achievingits goals.
   c. Status of Negotiations With Canada
  on Revising the Specific Objectives. The
  United States/Canada Binational
  Operations Committee (BOG) is
  currently responsible for developing  ;
  modifications to the Objectives in    /
  Annex 1. The United States.and Canada,
-through the BOG, have agreed to pursue
  common water quality criteria,
  methodologies and implementation  •"  [
  procedures for the waters of the Great
  Lakes System! EPA intends to submit
  the numeric criteria, methodologies, and -.
  implementation procedures contained

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20820	Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
in the proposed Guidance as the basis
for the United States' proposal to
modify the GLWQA pursuant to' Article
X.
C. Governors' Toxics Agreement
  In 1986, the Governors of the eight
Great Lakes States signed the Great
Lakes Toxic Substances Control
Agreement (Governors' Agreement),
pledging the States' cooperation in
studying, managing and monitoring the
Groat Lakes as an integrated ecosystem.
The purpose of the Agreement is to
establish a framework for coordinated
regional action in controlling toxic
substances entering the Great Lakes
System; to further the understanding
and control of toxic contaminants; and
to develop common goals, management
practices and control strategies for
toxics to ensure a cleaner and healthier
Great Lakes Basin Ecosystem.
  The Governors' Agreement identified
six principles to guide State actions to
address pollution in the Great Lakes.
First, the Governors agreed to manage
tho water resources of the Great Lakes
based on a recognition of the economic
and environmental importance of this
natural resource. Second, the Governors
committed to managing the Great Lakes
as an integrated ecosystem, recognizing
that the water resources of the
ecosystem transcend political
boundaries. Third, the signatory States
concurred that the problem of persistent
toxic substances constitutes the
foremost environmental issue
confronting the Great Lakes. Fourth, the
Governors committed to continue
reducing toxics hi the Great Lakes
System to the maximum extent possible
consistent with, the Federal Clean Water
Act goal of prohibiting the discharge of
toxic pollutants in toxic amounts as
well as the Great Lakes Water Quality
Agreement's goal of virtual elimination
of tho discharge of all persistent toxic
ffubstances. Fifth, the States committed
to cooperating among themselves and
with local and State agencies, regional
groups, tho Federal government, the IJC
and tha public in the study, monitoring
and management of the Great Lakes.
Finally, the States agreed to work
cooperatively to improve the region's
Information retrieval and technical
analysis capabilities, recognizing that
compatible data bases are key to the
development of effective regulations
and tho control of toxic substances in
the Great Lakes System.
  The States also agreed that
maintaining the water quality of the
Great Lakes and stimulating economic
growth are complementary goals. By
 maintaining and improving the quality
 of Groat Lakes waters, the States
indicated that they would sustain water
supply systems and commercial,
manufacturing and recreation
industries, while creating new economic
development opportunities. Therefore,
the signatory States agreed to maintain
a high standard of water quality, when
establishing regulatory standards, and to
allow new or increased discharges that
have the potential to lower water quality
only when no prudent or feasible
alternative to such discharge exists.
  The signatory parties also agreed that
the permitting process is the best means
now available to regulatory agencies and
dischargers to control the releases of
toxic substances into the Great Lakes
System and that discharges, emissions
Or releases of toxic substances will be
controlled by a regulatory permit
process in order to reduce or eliminate
the negative effects of toxics on human .
health and the environment.
  To implement the goals of the
Governors' Agreement, the signatory
States directed their environmental
administrators to  jointly develop an
agreement for coordinating the control
of toxic releases and achieving greater
uniformity of regulations governing
such releases within the Great Lakes
System. This coordinated effort between
the Great Lakes States contributed to the
development of the Great Lakes Water
Quality Initiative.
  Finally, the Governors of the signatory
States committed to coordinate the
implementation of this agreement and to
review the progress made towards its
implementation on an annual basis. As
part of its role in  implementing this
agreement, each jurisdiction agreed to
develop a management plan appropriate
to its own political and regulatory
system. The environmental
administrators of each State review
these plans annually.
D. Great Lakes Water Quality Initiative

 1. Formation of Great Lakes Water
 Quality Initiative
   In June 1989, EPA's Region V initiated
 the effort known  as the Great Lakes
 Water Quality Initiative. This effort was
, intended to provide a forum for State
 and EPA development of uniform water
 quality criteria and implementing
 procedures for the Great Lakes basin.
 The participants  planned to use the
 results of this effort as a basis for
 revising State water quality standards
 during the next triennial review period
 required by section 303(c) of the CWA
 and to negotiate revised Specific
 Objectives and related protocols with
 Canada under the GLWQA.
   Three committees were formed under
 the GLWQI. A Steering Committee;   ;
consisting of directors of water
programs from EPA's national and
regional offices and the Great Lakes
States' environmental agencies (as co-
regulators of CWA water quality
programs), discussed policy, scientific,
and technical issues and directed the
work of the Technical Work Group. The
Technical Work Group (consisting of
technical staff from the Great Lakes
States' environmental agencies, EPA,
the U.S. Fish and Wildlife Service and
the U.S. National Park Service) prepared
proposals for submission to the Steering
Committee. The Public Participation
Group (consisting of representatives
from environmental groups,
municipalities, industry, and academia)  .
observed the deliberations of the other
two groups, advised them of the public's
concerns, and kept its various
constituencies apprised of GLWQI
activities.
  Of particular concern to the Steering
Committee were those pollutants which
persist throughout the Great Lakes
ecosystem and have a propensity to
bioaccumulate in the food chain,
thereby exhibiting or having the  '
potential to exhibit systemwide impacts.
As discussed hi section LA. of this  .
preamble above, although levels of
certain pollutants with systemwide
impacts have significantly declined in
recent years, the rate of decline has
diminished. Fish tissue concentrations
. of these pollutants have leveled off in
some cases, and may be approaching
equilibrium at concentrations well
above levels of concern as defined by
water quality criteria calculations.
Projections indicate that given the
current rate of pollutant loadings to the
Great Lakes System it will take many
years for fish tissue concentrations of
these highly bioaccumulative pollutants
to reach concentrations which allow
unrestricted consumption of Great Lakes
 fish. State and EPA scientists believe
that this is the result of the unique
properties of the Great Lakes ecosystem.
   The Steering Committee believed that
 further reductions in loadings of such'
 pollutants from all sources should be
 pursued. Furthermore, the Steering
 Committee was concerned that action be
 taken to ensure that problems would not
 develop in the future with pollutants
 which show a propensity to
 bioaccumulate and persist in the Great
 Lakes ecosystem, thereby potentially
 causing impairment of beneficial uses.
 Therefore, the Steering Committee
 initiated action by EPA and State staff
 on the Technical Work Group to define
 the persistent and bioaccumulative
 pollutants that warrant additional
 controls, and to develop proposed

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               .' Federal Register A Vol. 58, No. 72 / Friday, Apnl  16^  1993-7 Proposed Rules
                                                                     20821
additional control approaches lor those
pollutants.                     v
  To define the pollutants that warrant
additional controls, the Technical Work
Group considered two factors for
ranking and selection purposes:
Persistence and bioaccumulation.
—The persistence of a pollutant was
  recognized as an important factor for
  the reasons discussed in section LA of
  this preamble. The Technical Work
  Group believed, however, that
  research to date does not suggest a
  scientific approach that would allow
  a systematic ranking of pollutants in
  terms of their persistence in the Great
  Lakes system. Persistence depends on
  the cumulative effect of several fate
  and effect processes, such as   .
  volatility, anaerobic degradation,   ;
  hydrolysis, and photolysis. The
  Technical Work Group believed that '
  systematic data were generally not
  available for these individual      ,   .
  processes as they function in the
  Great Lakes system.  In addition, the
  Technical Work Group believed that
  data are not systematically available
  concerning the cumulative effect of
  individual fate.and effect processes on
  specific pollutants in the Great Lakes
  ecosystem under field conditions, or
 - under laboratory conditions which
  have been field correlated and      -
  verified.
—Bioaccumulation was recognized as
 • an important factor because of its
  ability to magnify the exposure ,of
 .humans and wildlife to toxic   ...
 "pollutants. As discussed further in
  sections n.G and IV of this preamble,
  methods and data exist to allow
  calculation1 of bioaccumulation factors.
  (BAFs} for the 138 pollutants of initial
  focus in the Great Lakes Water
  Quality Initiative. The methodology ,
  for developing BAFs provide for use
.of data collected under field     ,   .
  conditions or data collected under
  laboratory conditions which have   .
  been field correlated and verified.
  BAFs measure the uptake and   -
  retention of substances by organisms
  from the water and the food chain,
  and are expressed as the ratio of a
  substance's concentration in tissue of
  aquatic organisms to its concentration
  in ambient water.   .      -.-...'...
  The Technical Work Group proposed
utilizing a bioaccumulation factor
methodology which "incorporates
metabolism and other physicochemical
properties as a mechanism by which to
identify those pollutants which warrant
.additional controls. The Steering  •   ":
Committee agreed, and 'selected a
bioaccumulation factor (BAF) of 1000 as
an indicator of a pollutant's'ability to be
 highly bioaccumulative, and .proposed
 designating such pollutants as
 bioaccumulative chemicals of concern
 (BCCs). The selection of the BAF level
' of 1000 is discussed further in section
 H.G below. Pollutants with a B AF'
 greater than 1000 were believed by the
 Steering Committee to have a high
 potential to be found throughout the
 food chain of the Great Lakes  ecosystem
 arid therefore to have the potential to
 cause a significant risk to the  health of
 aquatic life, wildlife and humans which
 inhabit the Great Lakes Basin. The
 Steering Committee recognized that
 metabolism, molecular size and other
 physicochemical properties might effect
 bioaccumulation. Therefore/the BAF
 methodology being proposed  in
 appendix F of part 132 includes.
 provisions for States and Tribes to   "
 consider these properties in developing
 BAFs.    -,~             ,
   EPA and the Technical Work Group
 recognize that using bioaccumulation
 alone as a ranking and selection factor
 is more conservative than considering
 both persistence and biQaccumulation
 together, since there may be highly
 bioaccumulative pollutants that do not
 persist long in the Great Lakes Basin
 Ecosystem. The proposal to establish
 additional, controls on chemicals with a
 BAF over 1000 ensures that all
 pollutants with both properties,     '
 persistence and bioaccumulation, will
 be controlled.
   EPA believes the selection of BCCs for
 special attention in the Guidance is in
 confbnnance with the Great Lakes Water
 Quality Agreement, which calls for a
 focus on persistent toxic pollutants.,
 Article H of the Agreement states that it
 is the policy of the parties to the
 Agreemeritthat the discharge  of any or :
 all persistent toxic substances be
 virtually eliminated, where persistent
 toxic substances are defined in Annex
 12 of the Agreement as any toxic
 substance with a half-life in water of
 greater than eight weeks. As discussed
 above, the Technical Work Group was
 unable to develop systematic
 quantitative information, including
 overall half lives, on persistence in the
.Great Lakes Basin Ecosystem.       '
 Nevertheless, in the professional
 judgment of EPA scientists, the BCCs
 identified in Part A of Table 6 of the
 proposed Guidance are relatively ;
 persistent in aquatic organisms and,
 highly bioaccumulative. Therefore, they
 would most likely qualify as persistent
 toxic substances under the Agreement
   EPA invites comment on the -approach
 described above for selecting  pollutants Y
 for special attention in the Great Lakes  •
 System. In particular, EPA would like
^comments on the use of    :         ; -
 bioaccumulation factors as the sole .•'•>•'•
 quantitative factor to evaluate pollutants
 tor special attention; comments on
 whether data concerning other factors >
 that reflect persistence as well as, Or
 instead of, bioaccumulation should be
 used to select pollutants; and if so, any
 supporting data concerning overall
 actual or estimated persistence in the
 Great Lakes Basin Ecosystem, and    -,
 comments on what overall half life
 should be used to select pollutants.
 Furthermore, EPA would b& interested
 in any data showing that a specific BCG
 does not persist in the Great Lakes Basin
 Ecosystem for at least the 8-week half,
 life specified in the Great Lakes Water
"Quality Agreement, as measured by a
 suitable" method of estimating overall
 half lives. EPA invites comment on
 whether such data should be used as the
 basis for a possible exclusion of short-
 lived pollutants from the definition of  '
 BCC.                     .-•-"•;-.
   The Steering Committee judged that
 every reasonable effort should be made
 to reduce loadings of all BCCs. For
 example, the Steering Committee
 believed mixing zones should be
 eliminated for BCCs as a way to reduce
 mass loadings to the Great Lakes. In
 particular, the Steering Committee was
 concerned .that mixing zones on' large
 tributaries not be used to allow   , ,.
 significant mass loadings of BCCs to the
 Lakes.     --    • -.'-•   --.'. .  '' ,:   '
   The Steering Committee believed that
 new loadings of pollutants with a high
 potential to bioaccumulate should be
 severely restricted. Pollution prevention
 approaches, which eliminate the   •
 generation of pollutants at the source   :
, are inherently less costly than removing
 pollutants once they have entered the '
 environment. Accordingly, the Steering
 Committee endorsed more stringent
 antidegradation procedures for
 pollutants with a high potential to
 bioaccumulate. In addition, since many
 of these pollutants are problematic even
 when discharged below the level of
 detection, due to their bioaccumulation
 in the food chain to unsafe levels, the ,
 Steering Committee believed     -
 dischargers of these pollutants should
 conduct minimization programs to
 eliminate the internal sources of these
.pollutants. Furthermore, the Steering
 Committee reasoned that    '
 bioaecumulativexihemicals are those for
 which surface water pathways are likely
 to be major contributors to total human ~
 exposure, and therefore the non-cancer
 human health criteria-shouldbe',-'
 adjusted throu'gh^use of a relative source
 contribution (RSC) factor of 80 percent.
   EPA is including the Steering,    ;   i
 Committee's special regulatory    .;•"-'  :•
 provisions for mixing zones,  -   •  :  •...

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20822	Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
antidegradation, minimization
programs, and human health criteria
development for BCCs in the proposed
Guidance. Hie special regulatory
provisions include portions of the
human health criteria development
methodologies in appendix C, the
antidcgradation policy in appendix E,
and procedure 3 (total maximum daily
loads) and procedure 8 (WQBELs below
the levels of detection) in appendix F.
Discussions of these provisions are
provided hi sections V, VJH, VDI.E, and
VniH of this preamble. EPA believes
that the special requirements developed
by the Steering Committee are a
reasonable approach, although not
necessarily the only reasonable
approach to address the issue of
persistent bloaccumulative pollutants in
tho Great Lakes System, for the
following reasons:
—Persistence of toxic pollutants is a
  major concern in an aquatic system
  like the Great Lakes, for the reasons
  discussed in section LA. above. It is
  especially problematic for chemicals
  that are highly bioaccumulative,
  because the most important exposure
  pathway for humans and wildlife in
  the Groat Lakes System is
  consumption offish and other aquatic
  organisms. Persistent bioaccumulative
  chemicals will result in high
  exposures to humans and wildlife for
  a long tune to come.
—-The proposed human health and
  wildlife criteria may not be
  sufficiently protective for persistent
  bioaccumulative chemicals. The
  proposed criteria are derived using
  available data and assumptions
  regarding data gaps. Despite the
  inherently conservative nature of the
  assumptions used when data gaps
  occur, it is possible that in some cases
  the criteria may not be sufficiently
  stringent Considering the
  conservative elements of the criteria
  development methodologies, the risk
  of criteria not being sufficiently
  stringent is acceptable with respect to
  pollutants that are not persistent in
  tho environment, since the resulting
  unacceptable impacts will be
  relatively temporary in duration. For
  persistent bioaccumulative pollutants,
  however, the risk may not be
  acceptable in the Great Lakes Basin
  Ecosystem where recycling of
  pollutants in a relatively closed
  system may result in unacceptable
  impacts that are long term in
  duration, and make future cleanup
  actions moro difficult, costly, and
  time consuming. Accordingly,
  additional controls intended to
  prevent concentrations of persistent
 bioaccumulative pollutants from
 increasing to the level of criteria
 concentrations in Great Lakes waters
 are reasonable.
-Both options for development of total
 maximum daily loads proposed in the
 Guidance envision predominant use
 of a simple, steady-state mass balance
 approach. A mass balance approach is
 a method used to approximate the
 mass of pollutants within a. water
 body. This approach assumes that the
 input of mass into the system (e.g.,
 through point and nonpoint source
 loadings, atmospheric deposition,
 groundwater seepage) equals the loss
 of mass from the system plus any
 losses due to transformation of mass
 within the system. Because both
 options assume a simple steady state,
 it is assumed that no mass can be
 accumulated in the system. This
 provides for a first approximation of
 allowable loading allocations. For
 persistent bioaccumulative pollutants,
 however, this approximation will
 likely not be accurate. As discussed hi
 section LA of this preamble above,
 there are significant interactive
 physical, chemical, and biological
 processes' that affect the long-term
 behavior of persistent
 bioaccumulative pollutants in the
 Great Lakes system, resulting in fairly
 common occurrences where such
 pollutants do accumulate in various
 compartments in the system. The
 proposed TMDL procedures provide
 for subsequent monitoring to identify
 any shortcomings in the control
 approach and provide for appropriate
 revisions. For persistent        .  -.
 bioaccumulative pollutants, however,
 this approach may present a
 significant risk of allowing the
 pollutants to concentrate in the
 ecosystem above ambient criteria
 levels before the control approach can
 be revised and cleanup actions take
 full effect EPA believes the costs of
 future remediation actions to address
 BCCs would be significantly more
 expensive than efforts to control the
 BCCs before  they enter the
 environment.Accordingly, additional
 controls intended to prevent
 concentrations of persistent
 bioaccumulative pollutants from
 increasing to the level of criteria
 concentrations in Great Lakes waters
 are reasonable.
-The proposed Guidance contains no
 regulatory text concerning the
 additivity of the toxic effects of
 pollutants, although the preamble
 discusses several approaches that EPA
 may decide to include in the final
 rule. T&the extent that the final rule
 contains no provisions that directly
  address risks related to additivity, or
  contains provisions that directly
  address some but not all aspects of
  additivity, additional controls
  intended to prevent cbncentrations of
  persistent bioaccumulative pollutants
  from increasing to the level of criteria
  concentrations in Great Lakes waters
  are reasonable to account for their
  possible additive effects. For
  persistent bioaccumulative pollutants
  any additional effects would be more
  difficult to overcome because of the
  longer times required to identify
  problems, establish controls, and
  implement the controls, and for the
  ecosystem to respond, ultimately
  restoring beneficial uses.
  The proposed Guidance calling for
special, more restrictive measures for
BCCs which could cause lakewide
impairments of beneficial uses is
consistent with the Great Lakes Water
Quality Agreement goal of virtual
elimination of toxics, the
recommendation of the Great Lakes
Governors Toxic Substances Control
Agreement calling for the continued
reduction of toxics in the Great Lakes
System to the maximum extent possible,
and the Clean Water Act goal of fishable
waters. The elimination of mixing zones
for BCCs in the Great Lakes system is '
consistent with current National
regulations and guidance and the  Great
Lakes Water Quality Agreement. EPA
regulations provide that States may, at
their discretion, provide for mixing
zones as part of their State water quality
standards. EPA's 1991 guidance
document, "Technical Support
Document for Water Quality-based
Toxics Control," recommends that
States provide a definitive statement in
their water quality standards as to
whether or not mixing zones are
allowed and states that as our
understanding of pollutant impacts on
ecological systems evolves, there may be
cases identified where mixing zones are
not appropriate and should not be
allowed. The Great Lakes Water Quality
Agreement supports the elimination of
point source impact zones (mixing
zones) for toxic substances (GLWQA at.
Annex 2 Paragraph 2.(d)).
  EPA invites comments on these
issues. EPA recognizes that there may be
other reasonable approaches to protect
the Great Lakes ecosystem from the
effects of persistent bioaccumulative
pollutants. For example, it may be
possible to devise  a comprehensive
system of monitoring and special
NPDES .permit requirements to guard
against file buildup of such chemicals
past the point where the regulatory
control pro'cess can prevent levels from

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                  Federal Register  /Vol.  58,  No. 72 /Friday, April  16,  1993 /Proposed Rifles  .'   %   20823
  exceeding criteria in the future because
  of interactive processes and effects in
  the relatively, closed Great Lakes Basin
  Ecosystem. EPA invites comments on
  such possible alternatives, how effective
  they may be in addressing the types of.
  problems discussed above, and how
  easily they may be implemented.
   ^Further discussion of the definition of
  BCCs, the selection process for the BCCs
  listed in Parts A andB of Ta~ble 6 of part
  132  of the proposed Guidance, and an
  invitation for comments on specific
  issues is found in section E.G. below. A
  more detailed discussion of the special
  regulatory requirements^mposed on
•  BCCs is found in sections II. G, VII,
  yffl.C, and VHLE of this preamble,
  below,-

  2. Great Lakes Critical Programs Act of
  1990                •   :    .---.,..

   /The above efforts by the Great Lakes
  Water Quality Initiative were well
  underway in 1990 when Congress
  passed the Great Lakes Critical Programs
  Act (CPA). In developing this
  legislation, Congress praised the
  ongoing efforts of the Initiative to
  develop guidance on minimum
  requirements for the Great Lakes States'
  water quality programs. 136-Cong. Rec.
  S. 15620,15623 (Oct. 17,1990)
  (Remarks of Senator Levin). (See also
"  discussion of legislative history in
  section H.E.l.c. below.) Congress      .c
  amended section 118 of the Clean Water
 Act through the Great Lakes Critical
 Programs Act of 1990 (CPA) (Public Law
 101-596, Nov. 16,1990). The general .
 purpose of these amendments was to
 improve the effectiveness of EPA's
 existing programs in, the Great Lakes by
 identifying key treaty agreements
 between the United States and Canada
 in the Great Lakes Water Quality .
 Agreement, imposing statutory"
 deadlines for the implementation of
 these key activities, and increasing
 federal resources for program operations
 in the Great Lakes System. (W.).
   Section .101 of the CPA (Clean Water
 Act section 118(c)(2)) requires EPA to
 publish proposed water quality
 guidance for the Great Lakes System
 which conforms with the objectives and
 provisions of the GLWQA and is no less
 restrictive than provisions .of the Clean  •
 Water Act and national water quality
 criteria and guidance. The guidance
 must specify minimum requirements for
 the waters in the Great Lakes System in
 three areas:
   a. Water quality standards (including
 numerical limits on pollutants in
 ambient Great Lakes'waters to protect   -'..
human health, aquatic life and wildlife);
   b. Antidegradation policies; and
   c. Implementation procedures,
    The CPA amendments require the
  Great Lakes States to adopt water
  quality standards, antidegradation
  policies-and implementation procedures
  for waters within the Great Lakes
  System which are consistent with the
.  finarguidance. If a State fails to adopt  :,
•  consistent provisions within two years
  of EPA's publication of the'final
"  guidance, EPA is required to promulgate
  any necessary requirements for the State
  within that two-year period. The
  proposed procedure for State and Tribal
  adoption of these provisions is set forth
  in section n below.        . " ' •'
  . The statutory requirements to develop
  guidance for the Great Lakes were
  intended to codify the ongoing efforts of
  EPA and the eight Great Lakes States
  under the Great Lakes Water Quality
  Initiative. 136 Cong. Rec. S. 15620,
  15624 (Oct. 17,1990) (remarks of Sen.
  Levin and Sen. Glenn) Congress
  recognized that a primary goal of the
  Great Lakes Water Quality Initiative was
  to identify, through a regional dialogue,
  minimum guidelines to reduce  .',_•-''
 •disparities among water quality controls
  in the Great Lakes. Congress intended
 that the Great Lakes Guidance would
 similarly move the Great Lakes States
 toward a more consistent, region-wide
 implementation of the GLWQA by
 addressing "the topics already under
 discussion in the region: Minimum
 water quality standards for  selected
 pollutants, antidegradation policies and
 implementation procedures.''-(Id.) As
 discussed further in section H.E.l.c.
 below, the establishment of a more  ,-
 uniform control of water pollution in
 the Great Lakes System was one of the"
 most important goals of this legislation.
   In addition to the requirement to"..
 develop the Great Lakes Water Quality
 Guidance in the proposed Guidance, the
 1990 amendments to section 118
 specified requirements for several other
 ongoing EPA programs in the Great
 Lakes. For example, the amendments
 also included requirements or'-'deadlines
 for research on contaminated sediments;
.development of numerical sediment
 criteria; development of a Lakewide
Management Plan for Lake Michigan ,
and Remedial Action Plans  for Areas of
 Concern; development of management •
plans for confined disposal  facilities;
and the assessment of spills of oil and
hazardous materials in the Great Lakes.
These, as well as other, separate EPA
and State programs to address water
quality problems in the Great Lakes
System, are addressed in section G
below.    .-"•                   -

3. Process After the CPA        ,
  , Following the passage of the Great
Lakes Critical Programs Act of 1990.
  EPA and the eight Great Lakes States
  intensified efforts on the Great Lakes
  Water Quality Guidance. On December
  6,1991, the GLWQI Steering Committee,
  recommended unanimously that EPA
  publish the proposed Great Lakes
  Guidance as approved by the Steering
'.  Committee in the Federal Register for
  public comment. The agreement that the
  Great Lakes Guidance ,was ready for
  public notice did not represent an'    '
  endorsement by every State of all of the
  specific proposals. EachState indicated
  its intention to fully review the
  proposed Great Lakes Water Quality  .
  Guidance and submit specific comments
  during the public comment period.
   EPA has generally used the December
  6,1991, Steering Committee proposal as
  the basis for the proposed Guidance. •
  However, the. proposed rule contains  a
  number of substantive clarifications,
  additions, and modifications to the
  Guidance endorsed by the GLWQI
/Steering Committee to reflect statutory
 and regulatory requirements, or EPA
 policy considerations. In addition, EPA
 has reorganized and modified the
 Steering Committee proposal for ,
 publication in the Federal Register, and,
 added proposed regulatory requirements
 and procedures for State and Tribal
 adoption of the final Guidance. All
 sections of the Guidance approved by
 the Steering Committee on December 6,
 1991 are either incorporated in the
 proposed Guidance or discussed hi the
 preamble.  ~
   The Great Lakes States'requested the
 opportunity to provide EPA with their,
 views on the public comments     *   '
 submitted on the proposed Guidance.  '
 Accordingly, following the close of the
 public comment period, EPA intends to
 compile the public comments and hold
 an open public meeting for the'purpose
 of receiving the vie.ws of both the Great
 Lakes States and other members of the
 public on the written comments. The
 date, time and location of the public
 meeting will be published in the.
 Federal Register and'a summary of the
 meeting will be included in the public
 docket.                        '    :  '

 E. Elements of the Guidance
 1. Water Quality Criteria for the
 Protection of Aquatic Life
  The  Guidance proposes numeric
 criteria to protect aquatic life for 16
 pollutants, and a two-tiered
 methodology to derive criteria and
 yalues_for additional pollutants
 discharged to the Great Lakes System.
Aquatic life criteria are derived to .       •
 establish ambient concentrations for
 pollutants, which, if not exceeded in the
Great Lakes System, will protect fish,

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Federal Register / Vol.  58, No. 72 / Friday, April  16,  1993 /Proposed Rules
benthic organisms, and other aquatic
Ufa from impacts due to that pollutant
EPA is proposing an acute criterion and
a chronic criterion for most of the 16
pollutants specifically addressed today.
An acute criterion indicates the
maximum concentration which, if not
exceeded, will protect organisms in the
Great Lakes System from short duration
exposures. They apply in all parts of the
Great Lakes System, including areas
near points of discharge where physical *
mixing of discharge water and receiving
water occurs. A chronic criterion
indicates the maximum concentration
which, if not exceeded, will protect
organisms in the Great Lakes System
from long duration exposures. Chronic
criteria do not generally apply to areas
near discharge points where mixing
occurs. The acute criteria proposed are
set at a higher concentration than
chronic criteria.
  Aquatic life criteria for each chemical
are primarily based on laboratory
toxicity data for a variety of aquatic
species (e.g., fish, benthic invertebrates,
plants) which are representative of the
spcclos in the environment as a whole.
In some cases, the proposed Tier I
numeric criteria include more current
toxicity data than existing National
criteria guidance due to the availability
of more recent data.  The Great Lakes
Water Quality Guidance also proposes a
translator procedure (the Tier n
methodology) to develop water quality-
basfld effluent limitations for NPDES
permits in the absence of the full Tier
I data requirements. The Great Lakes
States and Tribes are not required or
encouraged to use the Tier E
methodology to adopt water quality
criteria under section 303 of the Clean
Water Act States must use the Tier n
methodologies,  however, in conjunction
with the proposed whole effluent
toxicity requirements to implement
their existing narrative toxics criteria in
the absence of data necessary to derive
water quality criteria or numerical
effluent limitations under the proposed
Tier I methodologies.
  The above-mentioned procedures
result in two tiers of aquatic life
protection and allow the application of
the Great Lakes Water Quality Guidance
to all pollutants, except those listed in
Table 5 of this proposal* Tier I numeric
criteria are based on data requirements
very similar to those used in current
National guidance, i.e., acceptable
toxicity data for aquatic species in at
least eight families which represent
differing habitats and taxonomic groups
must exist before a Tier I numeric  '
criterion can be derived. Tier n values
are used when the minimum Tier I data
requirements are not met, but a value
                      equivalent to a water quality criterion  •
                      needs to be derived in order to make the
                      permitting and control decisions
                      necessary to address a pollutant
                      discharge- Tier II values can, in certain
                      instances, be based on toxicity data from
                      a single taxonomic family.

                      2. Water Quality Criteria for the
                      Protection of Human Health
                        The Guidance'proposes numeric
                      criteria to protect human health for 20
                      pollutants and a methodology to derive
                      cancer and non-cancer human health
                      criteria and values for additional
                      pollutants discharged to the Great Lakes
                      System. Human health criteria are
                      derived to establish ambient
                      concentrations of chemicals which, if
                      not exceeded in the Great Lakes System,
                      will protect individuals from adverse
                      health impacts from that chemical due
                      to consumption of aquatic organisms
                      and water, including incidental water
                      consumption related to recreational
                      activities in the  Great Lakes System. For
                      each chemical, chronic criteria are
                      derived to reflect long-term
                      consumption of food and water from the
                      Great Lakes System.
                        As with the aquatic life criteria
                      procedure, the human health procedure
                      results in two tiers of numeric values:
                      Tier I numeric criteria and Tier n
                      values. For Tier I numeric criteria, dose-
                      response data are derived from human
                      or animal studies which are associated
                      with no observable toxic effect. Studies
                      are evaluated for both carcinogenic and
                      non-carcinogenic effects. Numeric
                      criteria are calculated by integrating an
                      assessment of the relationship between
                      the dose of a chemical and the potential
                      for causing an adverse effect with
                      appropriate exposure assumptions
                      based on data from the Great Lakes
                      System for consumption of fish,
                      bioaccumulation in fish, and
                      consumption of water, to yield an
                      ambient water concentration that is not
                      likely to result in adverse human health
                      effects over the  course of a human
                      lifetime.
                        Under the Tier n procedures, Tier n
                      values will be established for chemicals
                      with an insufficient database to meet
                      Tier I requirements. Tier E values may
                      he-established for non-carcinogenic and
                      carcinogenic endpoints depending on
                      the adequacy of data.
                        The Great Lakes Water Quality
                      Guidance differs from current National
                      water quality guidance by using
                      bioaccumulation factors which account
                      for direct uptake from the waters of die
                      Great Lakes System plus uptake from
                      the fopd chain.  This consideration often
                      results in the development of more
                      stringent criteria. Additionally, a fish
consumption rate that is based on data .
from the Great Lakes area is used in the
proposed Guidance. This value is higher
than that used in the National guidance.
This results in more accurate and
protective, although more stringent,
criteria that appropriately reflect Great
Lakes fish consumption rates.

3. Water Quality Criteria for the
Protection of Wildlife
  The Guidance proposes numeric
criteria to protect Wildlife for four  -
pollutants and a methodology to derive
criteria and values for additional
pollutants discharged to the Great Lakes
System. Wildlife criteria are derived to
establish ambient concentrations of
chemicals which, if not exceeded, will
protect mammals and birds from
adverse impacts-from that chemical due
to consumption of food and/or water
from the Great Lakes System. The Great
Lakes wildlife criteria are the highest
calculated aqueous concentrations of
substances which cause no significant  '
reduction in growth, reproduction,
viability or usefulness of a population of
exposed animals that use Great Lakes
System waters for food or drinking over
several generations. For most chemicals
of concern, piscivorous wildlife species
have been identified as most at risk   .
within the Great Lakes System. Based
on an analysis of body size and foraging
behavior for wildlife in'the Great Lakes
System, the mink and river otter, and
the eagle, osprey, and belted kingfisher
have been selected as representative
mammalian and avian species for
calculating these criteria.
  For each chemical, only a chronic
criterion is derived in the Great Lakes
Water Quality Guidance because
adverse effects to wildlife normally
occur only over relatively long periods
of time through continued periodic
exposure to  contaminated food and
water from the Great Lakes System.
  The wildlife procedure results in the
same type of two-tier protection as the
aquatic life and human heaUh
procedures. Tier I numeric criteria are
based on dose response data from birds
and mammals. Either field studies or
laboratory studies serve as sources of
data. Tier n values may be based on data
from a single taxonomic class, and may
come from laboratory studies of more
limited scope for mammals. For birds,
studies must meet the same
requirements as for Tier I.
  The development of wildlife criteria
procedures within the Great Lakes
Water Quality Guidance is a significant
addition to current national guidance as
EPA has not published a separate
wildlife criteria methodology at the
National level.  Only four numeric

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                                                                     20825
  , wildlife criteria are being proposed for i
   two major reasons: Field studies from
   the Great Lakes indicate that the* four :
   pollutants for which wildlife criteria are
   proposed have had the most severe
   impacts on wildlife within the Great
   Lakes; and the criteria proposed are the
   first set of criteria for wildlife that EPA
   has ever developed. EPA cannot take
   advantage of an established and peer-
   reviewed national methodology to
   develop wildlife criteria as it can for  •
   both human health and aquatic life   .
   criteria; The Initiative Committees and
   EPA lacked time and resources to
   develop additional numeric criteria for
   wildlife prior to this proposal. The State
   of Wisconsin had already identified
   these four chemicals as chemicals of
   concern for wildlifei impacts in their
   State and completed, literature reviews,
   for these four chemicals. These i
   literature reviews were updated as part
   of the GLWQI effort.

   4. Bioaccumulation Factors
    The Great Lakes Water Quality
 .Guidance contains a procedure for
   determining bioaccumulation factors
   which are used to estimate the intake of
.   chemicals via consumption of fish by
   wildlife species and humans. The Great
   Lakes Water Quality,Guidance proposes .
   to use bioaccumulation factors in the
   calculation of wildlife criteria and
  human health criteria to account for the
  tendency of organisms to accumulate
 . certain chemicals hi their tissues to
'-'• concentrations many times greater than
  the concentration of the chemical in the
  water body. For certain chemicals, this
  tendency to bioaccumulate becomes
'  more pronounced with every level of
  the food chain through which the  '
  chemical passes. To protect species at
  all levels of the food chain requires
  relatively stringent criteria for those
  chemicals which bioaccumulate in   , "'-
  organisms. Bioaccumulation factors are
  generally higher than the     ,
  bioconcentration.factors currently in use
  by most States and EPA in deriving.
  water quality criteria to protect human
  health. This is due to the fact theit
  bioconcentration accounts only for
 : uptake by aquatic organisms directly
  from water alone, while
  bioaccumulation factors account for
  accumulation through die food chain.
   The bioaccumulation.factor used in
  the calculation of human health criteria
  in the Great Lakes Guidance is different
.from the one used to calculate the V
  wildlife criteria for any given chemical.
  This is due to the type and form of food
  eaten by wildlife (whole body), which is
  different from that typically eaten by
 people (muscle tissue alone). Since,
 many chemicals, of concern tend to
  bioaccumulate in fat more than other
  tissues, the bioaccumulation factor used
 " in calculating human health criteria will
  in many cases be lower than the one  ,
  used in calculating wildlife criteria.
  Also, significant differences in the types
  of species consumed by wildlife versus
  those consumed by people'may also  '
,  affect the bioaccumulation factor used
  in calculating human health criteria
  versus wildlife criteria for the Great
  Lakes System.

  5. Antidegradation         ,
   The.Great Lakes Guidance
 antidegradation policy is intended to
 protect and maintain existing water
 quality. The concept was developed in
 the regulatory context as early_as 1968
 by the Department of Interior and is
 included in federal regulations (40 CFR
 131.12) and reflected in the Clean Water
 Act. However, specific National
 guidance on implementation of this
 concept within the context of current
 regulatory programs (e.g., NPDES
 permits) has never been developed,
 resulting in a myriad of State
 implementation procedures with
 various levels of protection.  •
   The Great Lakes Water Quality
 Guidance proposes detailed
 antidegradation Implementation
 guidance'to ensure that all of the States
 and Tribes in the Great Lakes System
 carry out this important water quality
 concept in a consistent and protective ;
 manneri Antidegradation provides three
 different levels of protection, depending
 on the water quality in the receiving
 water body. First, for all water bodies,
 water quality cannot be degraded below
 the level protecting existing uses, which
 are defined as  any uses that a water
 body has actually supported since 1975.
 If a water body has supported, for
 example, a fishery at any time since •
 1975—'Whether or not the fishery is still
 in existence—no chemical can be
 discharged at a level that would impact
 the water quality needed for a fishery,
even if allowing the discharge would be
socially and economically important to
the community,.  .          ./  • .
  Second, if the water body is not an"
OutstandingNational Resource Water   .
(ONRW), but ambient water quality is   ,
better than the quality needed for
fishable/swiirimable uses for any given
chemical, then significant increased
loadings of that chemical are  allowed
only if the State or Tribe determines that
it is necessary for important social and .
economic development in the area
where the.increase is proposed. The
Great Lakes Water Quality Guidance
antidegradation procedures specify how
Great Lakes States or Tribes will
determine when a proposed action, such
  as an NPDES permitted'discharge, will
  result in significant lowering of water
 ..quality in the water body; whether it is
  necessary for that action to significantly
  lower Water quality, and how the socio-
  economic importance of such an action:
  will be evaluated. In general, NPDES
  permit conditions for chemicals .which
  bioaccumulate will restrict dischargers
  to the loadings currently measured in
  their effluent, unless the discharger
  demonstrates the need to accommodate
  important social and economic
  development.   .'"'             •'"   ••
    Third, if a State or Tribe has
.  designated a water body as an '
  Outstanding National Resource Water
  (ONRW), then no permanent
 degradation is allowed under any
 circumstances.

 6. Implementation Procedures.      _
    In addition to the water quality     '
 criteria and antidegradation policies  •
 discussed above, the proposed Guidance
 includes procedures to convert water
 quality criteria and values into specific
 controls on sources of pollutants in the
 Great Lakes System. Various procedures
 to implement State numeric and
 narrative water quality criteria are
 currently contained in EPA regulations
 and guidance and in individual State
 water quality standards or NPDES
 programs authorized under section 402
 of the Clean Water Act.
   The 1990 amendments to section
 118(c)(3) require EPA to publish
 guidance, on Tnininrmnv implementation
 procedures for the Great Lakes System.
 One of the mpst important goals of this
 legislation was the establishment of a
 more uniform level of control of water
 pollution by the Great Lakes States.
 Consistent procedures to translate water:
 quality criteria into specific controls on
 pollutant sources are essential to this    :"-.
 goal.
   Appendix F of the proposed Guidance
 specifies minimum requirements for '.,"••
 procedures to implement water quality
 criteria in the following areas:
   a. Site-specific modifications tb~
 criteria/values (implementation     •
 procedure 1 of appendix F to part 132);
  'b. Variances from water quality     ;
 standards (implementation procedure 2
 of appendix F to part 132);
   c. Total maximum daily load/
 wasteload allocation procedures/mixing
 zones for point sources;:(implementation
 procedure 3 of appendix F to part 132);
   d. Additivity (implementation
 procedure 4 of appendix F to part 132,
 which is reserved in the proposed
 Guidance);                    ••'••-.
  e. Reasonable potential to exceed
numeric water quality/standards      '.'.-."

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Federal Register /  Vol.  58,  No. 72 I Friday, April  16, 1993 / Proposed Rules
(implementation procedure 5 of
appendix F to part 132);
  f. Whole effluent toxicity
requirements (implementation
procedure 6 of appendix F to part 132);
  g. Loading limits (implementation
procedure 7 of appendix F to part 132);
  h. Water quality-based effluent
limitations below the levels of detection
(implementation procedure 8 of
appendix F to part 132); and
  i. Compliance schedules
(implementation procedure 9 of
appendix F to part 132).
F. Science Advisory Board Review

  The EPA Science Advisory Board
(SAB) was established to provide
independent advice to EPA on the
scientific and technical aspects of
environmental problems and issues.
(Sao Environmental Research,
Development and Demonstration Act of
1978,42 U.S.C. 4365.) EPA submitted
the draft proposals developed by the
Great Lakes Water Quality Initiative
Steering Committee for the aquatic life
methodologies, the wildlife
methodologies, the human health
methodologies, and the
bioaccumulation methodology to the
SAB for review on January 8,1992. EPA
generally used the Steering Committee
proposal as the basis for developing the
Great Lakes Water Quality Guidance
proposed by EPA. EPA requested SAB
review of these draft documents due to
their scientific and technical complexity
and potential effect on EPA's current
National guidance in these areas.
  The SAB completed its  review of
those draft documents on  December 16,
1992. A copy of the SAB report (EPA-
SAB-EPEC/DWC-93-005) is contained
in the public docket of this rulemaking.
The report was prepared jointly by the
SAB's Great Lakes Water Quality
Subcommittee of the Ecological
Processes and Effects Committee and
the Drinking Water Committee. The
SAB commended EPA for the
interactions among the States, EPA, the
private sector and the scientific
community during the development of
this proposed Guidance and provided
substantial comments on many elements
of the submitted draft documents. Some
of the questions and comments raised in
the SAB review were identified by EPA
during the subsequent preparation of
the proposed Guidance, and resulted in
modifications to the proposed rule. The
remaining major issues raised by the
SAB have been highlighted by EPA in
the appropriate preamble sections to
solicit full public review and comment.
                      G. Other Programs to Protect and
                      Restore the Great Lakes
                        In addition to the Great Lakes Water
                      Quality Guidance described in the
                      proposed Guidance, the United States is
                      currently implementing several
                      regulatory and voluntary programs to
                      prevent pollutants from being
                      introduced, reduce pollutant loadings
                      currently being discharged, and
                      remediate the adverse effects associated
                      with past pollutant discharges to the
                      Great Lakes System. Several of these
                      programs are described below.

                      1. Great Lakes Five-Year Strategy
                        The EPA and 15 Federal, State and
                      Tribal agencies have developed a Five-
                      Year multi-media Strategy-to reduce
                      toxic loadings from all sources of
                      pollution hi the Great Lakes System
                      ("Protecting the Great Lakes: Our
                      Environmental Goals and How We Plan
                      to Achieve Them," USEPA, April 1992).
                      The goals of this inter-agency Strategy
                      are to:               *      -
                        a. Reduce and virtually eliminate
                      toxic substances in the Great Lakes
                      Basin Ecosystem;
                        b. Protect and restore habitats vital for
                      support of healthy and diverse
                      communities of plants, fish and
                      wildlife; and
                        c. Ensure the protection of human
                      health while restoring and maintaining
                      the biological diversity among Great
                      Lakes fish, aquatic life, wildlife and
                      plants.
                        The Strategy includes specific
                      commitments and activities that will be
                      coordinated  among the Federal, State
                      and Tribal agencies to achieve these
                      common environmental goals. For
                      example, elements of the Strategy
                      include: Implementation of the Clean
                      Air Act Amendments to reduce
                      atmospheric deposition of toxics;
                      application of the National
                      Contaminated Sediment Strategy to
                      assess, prevent and remediate
                      contaminated sediments; measures to
                      implement best management practices
                      to control runoffs from such diffuse
                      sources  as agriculture, silviculture,
                      mining and construction sites; and the
                      coordinated  development of agency and
                      State work plans to target actions on
                      specific pollutants of concern in the
                      Great Lakes System.
                      2. Great Lakes Pollution Preventior
                      Action Plan
                        The Pollution Prevention Act of 1990
                      declares as National policy that  ,
                      pollution prevention is the preferred
                      approach to  environmental protection:
                      reducing or eliminating pollution
                      through, for instance, changes in
 production processes and/or by
 reducing reliance' on environmentally
 harmful materials. (Pub. L. 101-508,
 section 6601-6610,104 Stat. 1388,
 codified at section 13101-13109 West
 Supp. 1991). When preventing pollution
 is not feasible, recycling in an
 environmentally safe manner is the next
 preferred option, followed by treatment.
 Disposal or other release into the
 environment should be the management
 option of last resort, and should only be
 done in an environmentally protective
 manner.
   Consistent with the goals of the
 Pollution Prevention Act, EPA
 developed the Great Lakes Pollution
 Prevention Action Plan (April,11991).
 The Action Plan highlights how. EPA, in
 partnership with the States, will
 incorporate pollution prevention into
 actions to reduce the use and release of
 toxic substances in the Great Lakes
 basin. These activities are designed to
 complement efforts already underway at
 the State and Federal levels.
   The Action Plan has two distinct
 components. First, it includes new
 initiatives designed to promote
. innovative pollution prevention __
 practices throughout the basin. Second,
 it involves reorienting and refocusing
 existing activities, such as enforcement
 actions, to ensure that pollution
 prevention is an integral part of
 government's environmental protection
 .efforts. The Action Plan also builds
 upon the National EPA Pollution
 Prevention Strategy (56 FR 7849
 (February 26,1991)). The focus of the
 National strategy is to reduce the on-
 going generation of toxic pollution in
 any form (air emissions, waste water
 discharges, hazardous waste, runoff, or
 fugitive releases) through reduction in
 the use of toxic substances, process
 changes and product changes.
   EPA and the Great Lakes States agreed
 to implement this effort to reduce the
 levels of toxic substances found in the
 Great Lakes basin by promoting
 pollution prevention activities to  ,
 significantly reduce or eliminate the use
 and/or release of toxic substances at the
 source, with a special focus on reducing
 or eliminating persistent
 bioaccumulative toxic substances. EPA
 is currently promoting pollution
 prevention through a number of
 regulatory and non-regulatory activities.
 For example, EPA is implementing the
 National 33/50 Program in the Great
 Lakes System. Under this National  ,„
 program, EPA has received voluntary
 commitments from industry to reduce
 the emission of 17 priority pollutants by
. 33 percent by the end of 1992 and by
 50 percent by the end of 1995. EPA has
 also been working with utilities located

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                 Federal Register / Vol. 58, No. 72 /Friday, April 16, 1993 / Proposed Rules
                                                                   20827
 within the Great Lakes basin to
 accelerate the phase-out of transformers
 containing PCBs; In addition, EPA and
 the Great Lakes States have undertaken
 many pollution prevention activities
 including "clean sweeps" which not
 'only provide, for the collection and    ,
~ environmentally safe disposal of
 contaminants, but also provide.
 educational fact sheets to participants
 on how to prevent future pollution, _•
 These pollution prevention activities   :
 wiU complement other ongoing efforts
 to reduce toxics in the Great Lakes
^ System.     '   "  '.•"':    :      ...  •

 3, Lakewide Management Plans (LaMPs)
   In Article VI, Annex 2 ^of the Great
 Lakes Water Quality Agreement
 (GLWQA), as amended in 1987, the
 United States and Canadian
 Governments agreed to develop and  ,
 implement Lakewide Management Plans
• '(LaMPs) for each of the five Great Lakes.
 LaMPs are management tools designed
 to: (1) Integrate Federal, State and local
 programs to reduce loadings of toxic
 substances (including discharges from
 point and nonpoint sources); (2) assess
 whether these programs will ensure
. attainment of water quality standards
 and designated beneficial uses; and (3)
 recommend any media-specific program
 enhancements necessary to reduce toxic
-loadings in waters currently not
 attaining water quality standards and/or
 designated beneficial uses. LaMPs
.provide an opportunity for regulatory
. authorities to design cost-effective
 approaches for .meeting water quality
 standards and/or beneficial .uses.  .
   The primary goal of the LaMPs is to
 reduce loadings of critical pollutants,
 those pollutants which are currently
 impairing the beneficial uses of the
 open waters of the Great Lakes. LaMPs
 are also pollution preventionroriented
 and address pollutants that might
 impair waters that currently meet water
 quality standards and/or beneficial .uses.
 Traditional regulatory programs, as well
 as non-traditional voluntary programs,
 are considered in the LaMP process.
   LaMPs for each of the Great Lakes will
 be developed by EPA in phases; LaMP
 development activities were initiated for
 Lakes Michigan and Ontario in Federal
 fiscal year 1991, and for Lake Superior
 in fiscal year 1992. LaMPs for Lakes Erie
 and Huron will be initiated in fiscal
 years 1993 and 1994, respectively.
   The Great Lakes Critical Programs Act
 of 1990 (CPA) established deadlines
 regarding the completion of the Lake
 Michigan LaMP. A notice of availability
 of the draft Lake Michigan LaMP was .
 published in the Federal Register on
 August 11,1992 (57 FR 358). Following
 the public review and comment period,
 the Lake Michigan LaMP will be revised
.and submitted to the International joint
 Commission. The final Lake Michigan
 LaMP will be published in the Federal
 Register. The draft Lake Michigan LaMP
 has identified both immediate and long-
 term implementation actions to reduce
 loadings of critical pollutants. Three
 basic implementation steps are outlined:
 identification of all possible sources of
 pollutants; quantification of loadings
 from each source; and identification of
 load reduction activities with the
 greatest potential for pollutant
 reduction.       •--            "..-••:.•
  Development of the Lake Ontario
 Toxics Management Han (LOTMP), the
 precursor to me Lake Ontario LaMP,
 was undertaken by EPA, Environment
 Canada, the New York State Department
 of Environmental Conservation and the .
 Ontario Ministry of the Environment
 (the Four Parties) on February 4,1987.
 The goal of the LOTMP is to ensure a
 Lake that provides drinking water and
 fish that are safe for unlimited human "
 consumption, and allows natural
 reproduction within (the ecosystem of  -.
 the most sensitive native species
 including bald eagles, ospreys, mink
 and otters. The LOTMP addresses the
 bioaccumulation of toxic chemicals in
 fish flesh, the primary •environmental. ,
 problem identified in Lake Ontario.
 InitiaLtoxic reduction efforts are
 focussed on 20 hazardous waste sites
 that contribute .99 percent of the total
 loadings of contaminants from waste
 sites to the Niagara River which flows
 into Lake Ontario.
  The LaMP development effort for
 Lake Superior began as a component of .
 the Bi-National Program to Restore and
 Protect the Lake Superior Basin. Lake.
 Superior has not experienced the
 intense development, urbanization and
 pollution characteristic of the lower
 lakes and has remained relatively :
 pristine. The focus of the Lake Superior
 LaMP.-therefore, is on using Lake
 Superior as a demonstration area for
 new and innovative approaches to
 pollution prevention and zero
 discharge. '         •
  EPA intends to periodically update
 LaMPs to reflect progress in
 implementing media-specific programs
 and attendantreductions in toxic
 loadings, to incorporate advances in the
 understanding of the Great Lakes
 System.based on new data and
 information, and to include any    .
 necessary program specific adjustments.
 In addition, EPA expects any new ,
 loadings data obtained during the LaMP
 process will be nlcorporated by the
 States when establishing or revising
 TMDLs and WLAs in the Great Lakes
 System. These new TMDLs and WLAs
 will then be appropriately reflected in
 subsequent revisions to NPDES permits.

 4. Remedial Action Plans (RAPs)

   The development and implementation
 of Remedial Action Plans (RAPs) is
 addressed in. Annex 2 of the Great Lakes
. Water Quality Agreement. This section
 provides that United States and
 Canadian Governments will cooperate '
 with State and Provincial Governments -
 to ensure that RAPs are developed and
 implemented for specific Areas of
 Concern (AOCs) in the Great Lakes.  -
•   Forty-three AOCsiave been  '
 designated by the United States and/or
 Canadian Governments: 26 located
entirely within the United States; 12   V
 located wholly within Canada; and five
that are shared by both countries. RAPs
are being developed for each of these
AOCs that are designed to address
impairments to any one of 14 beneficial
uses (e.g., restrictions on fish and
wildlife consumption, dredging
activities, or drinking water      .   ;
consumption) associated with these  ,
"areas,     . :   .--""'   '  - .  '--.   ;   ,
  RAPs are developed in three stages:
The assessment of use impairments, the
stresses and sources of the stresses in
Areas of Concern (Stage I); proposed
remedial actions1 and their method of
implementation {Stage H); and evidence
that uses have been restored (Stage IE),
including significant milestones hi the
restoration of beneficial uses in the    .
AOCs. The eight Great Lakes States and
the Province of Ontario have the lea&in
preparing and implementing the RAPs,
but rely on the input and expertise
provided by Federal agencies and
organizations as well as local citizens
groups and individuals. The Great Lakes
Critical Programs Act of 1990   ;       .
established deadlines for.completion  of
RAPs for all AOCs in the United States.
As a result, the pace of RAP
development has been accelerated.
  Remedial actions to restore impaired
Uses in AOCs are proceeding in all of
the" designated AOCs even if RAP - •..;."
documents have not been fully
completed. For example, State and
Federal enforcement actions have been ,
taken against industrial dischargers for
permit violations. Multi-year programs
to eliminate or treat combined sewer
overflows and upgrades to municipal
sewage treatment plants have been
undertaken by cities and municipalities.
Superfund cleanups are in progress and
EPA and the States have taken multiple
remedial actions through hazardous   <'•-•;•
waste programs. Additionally, Federal :'
and State agricultural pollution control
programs are'alsp addressing problems
in several AOCs. ••','<••  .

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Federal Register  / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
5. Contaminated Sediments
  The United States and Canadian
Governments, in cooperation with State
and Provincial governments, have
agreed to identify the nature and extent
of sediment pollution in the Great Lakes
System pursuant to Annex 14 of the
Groat Lakes Water Quality Agreement.
Based on these findings, the United
States and Canada have agreed to
develop methods to evaluate both the
impact of polluted sediments on the
System and the technological
capabilities of programs to remedy such
pollution. Information obtained through
research and studies pursuant to Annex
14 will also be used to guide the
development and implementation of
RAPs and LaMPs. EPA is developing
both National and Great Lakes-specific
strategies to deal with this source of
contamination hi a comprehensive and
systematic way.
  Contaminated sediments are a
significant source of loadings of toxic
pollutants at harbors and river mouths
throughout the Great Lakes System and
identified as environmental problems hi
42 of the 43 AOCs. Based on a
preliminary review of Superfund case
studies (including the Fieldbrook
Superfund site in Ashtabula, Ohio), the
benefits of remediating contaminated
sediments are similar to, or exceed, the
costs even when considering only the
benefits of avoiding human cancer from
consumption of contaminated fish. If
economic values could also be assigned
to the values of noncancer health effects
and the negative ecological effects, the
benefits would be even greater.
  In order to design appropriate, cost-
effective remediation measures,
information at each site is needed on the
distribution and surface area of
contaminated sediments, their depth
and volume, chemicals present, toxicity
of the chemicals, potential for sediment
transport and redistribution, and the
movement of the chemicals from the
sediments to the water and to aquatic
communities.
  Tho 1987 Clean Water Act authorized
a five-year demonstration program to
develop technologies to treat
contaminated sediments in the Great
Lakes. This program, known as the
Assessment and Remediation of
Contaminated Sediments (ARCS)
Program, is designed to evaluate
appropriate treatment methodologies for
the cleanup of toxic pollutants in Great
Lakes contaminated sediments. The IJC
has identified contaminated sediments
as a problem in 42 out of 43 United
States and Canadian AOCs.
Additionally, EPA and local RAP teams
havo cited contaminated sediments as a
                      problem in all 31 United States and
                      joint United States/Canadian AOCs.
                      Under this program, United States
                      demonstrations of alternative treatment
                      technologies are underway.
                        The ARCS Program has used an
                      integrated approach involving over 40
                      agencies and organizations in
                      developing and testing assessment and
                      remedial action alternatives for
                      contaminated sediments. The overall
                      objectives of the ARCS Program are to:
                      Develop and demonstrate tools and
                      approaches for assessing the nature and
                      extent of bottom sediment
                      contamination at selected Great Lakes
                      AOCs; develop tools to predict the
                      consequences of remedial actions being
                      proposed; and demonstrate and evaluate
                      the effectiveness of selected remedial  .
                      options, including removal,
                      immobilization and advanced treatment
                      technologies.         "
                        This Program demonstrates state-of-
                      the-art methods for the assessment of
                      contaminated sediments. A mass
                      balance approach is being applied to
                      assess all impacts within an AOC and to
                      predict the benefits from a range of
                      cleanup scenarios. Both bench and on-
                      site pilot demonstrations are being
                      conducted at five priority AOCs in order
                      to evaluate different assessment and
                      remediation options and to provide
                      environmental decision-makers with ,
                      guidance on how to eh'minate problems
                      posed by contaminated sediments, Final
                      guidance documents on field
                      assessments, risk assessments and
                      modeling, and remedial technologies
                      will provide guidance for future, full-
                      scale cleanup efforts.
                        EPA is preparing to publish for public
                      comment proposed sediment quality
                      criteria for acenaphthene, dieldrin,
                      endrin, fluoranthene, and
                      phenanthrene. EPA is also developing a
                      National Contaminated Sediment  <
                      Strategy, which is expected to include
                      comprehensive strategies on sediment
                      assessment, prevention, remediation,
                      and dredged material management.
                      EPA's draft nationwide contaminated
                      sediment management strategy proposes
                      the use of four statutes (the
                      Comprehensive Environmental
                      Response, Compensation, and Liability
                      Act, the Resource Conservation and
                      Recovery Act, the Toxic Substances
                      Control Act, and the Clean Water Act)
                      to achieve active remediation of
                      contaminated sediments. The Great
                      Lakes ARCS Program is an essential
                      component of the National Strategy.
                      Implementation of the strategy will
                      provide reductions in loadings of
                      pollutants impairing water quality of the
                      Great Lakes System and preventing
                      attainment of beneficial uses.
  In the assessment strategy, EPA is
proposing to develop a national
inventory of contaminated sediment
sites and a pilot inventory of potential
sources of sediment contamination,
based on data from the ARCS Program
as well as on other databases. The
inventories will enable EPA's
prevention and remediation programs to
focus resources on addressing top
priority sites and sources. The
assessment strategy proposes to develop
a consistent, tiered testing, protocol that
will include a minimum set of chemical
and biological methods that all EPA
programs will use to determine if  .   ..
sediments are contaminated. EPA is also
developing sediment chemical criteria
to be used in sediment assessment. The
prevention strategy discusses a variety
of pollution prevention measures and
source controls, including nationally
applicable responses, such as
prohibitions or use restrictions under
TSCA or the Federal Insecticide,
Fungicide, and Rodentkdde Act
(FIFRA), technology-based effluent
limitations for industrial dischargers
under the Clean Water Act, and a
National initiative to revise water
quality-based effluent limits in NPDES
permits. The remediation strategy
emphasizes appropriate control of
sources prior to remediation efforts
unless the contaminated sediments pose
a sufficiently great hazard to human or
environmental health to warrant
immediate remediation. Factors that
will be considered in implementing this
strategy include:
  (1) Whether the sediment
contamination is contributing to severe
effects or substantial risks to aquatic
life, wildlife or human health;
  (2) Whether continued delay in
removing the sediment would result in
the spread of harmful contamination
over a wider area or into important;
habitats;
  (3) The likelihood of contaminated
sediments that are left in place at a
specific site to be transported to
downstream or offshore areas;    .
  (4) The timeframe for natural
recovery; the potential for contaminant
mobilization during remediation; and
  (5) The feasibility and cost of various
treatment and removal options,
  Cleanups of contaminated sediments
are occurring through the RAP process
and as a result of EPA's enforcement  ,
program. Examples include fifty
thousand cubic yards of contaminated
sediment removed from the Black River,
Ohio,  cleanup of one million pounds of
PCBs, initiated through a Superfund
enforcement action in Waukegan
Harbor, Illinois, and sediment cleanup
and environmental improvements.

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                 Federal Register / Vol. 58, No:  72 / Friday, April 16, 1^93 7 Prbjposed Rules
                                                                    206219
 provided for in a-$34 million settlement
 in the Grand Calumet River, Indiana.

 6. Atmospheric Deposition
   Airborne deposition of pollutants is
 believed to have a significant impact on
 the water quality of the Great Lakes ,
, System. The "Great Lakes Water duality
 Agreement provides that'the United
.States and Canada, in cooperation with
. the Great Lakes States and the Province
 of Ontario, shall conduct research, ;
 surveillance, and monitoring, and  .
 implement pollution control measures
 for the purpose of reducing atmospheric
 deposition of toxic substances,
 particularly persistent toxic substances,
 to the Great Lakes Basin Ecosystem  '
 (Annexes 11 and 15). To implement   :
 these provisions, the United States and
 Canada established.an Integrated
 Atmospheric Deposition Network as
 part of the Great Lakes .International   .
 Surveillance Plan .to monitor .
 atmospheric loadings of toxic --.    ;
 substance's to the Great Lakes System.
   Implementation of the major
 provisions of the Clean Air Act
 Amendments of 1990 (CAAA) is an
 integral part :of EPA's broader program
 to protect and restore the Great Lakes.   .
 By November 15,1993, then eveiy two
 years thereafter, EPA (in.cooperation','. •
 with the Department of Commerce) is
 required by section 112(m) of the CAAA
 to report to Congress concerning the
 results  of the Great Lakes monitoring  .
 studies and describe any revisions to
 Federal law necessary/to ensure
 protection of human health and the    '.
 environment in.'the Great Lakes System.
 The report will determine whether   ,
 provisions'of section 112 are adequate .
 to prevent serious adverse effects to
 public health and serious or widespread
 environmental effects. Based on the
 report,  EPA is required by November 15,
 1995, to promulgate further emission
 standards or control measures if
 necessary _to prevent such effects.
   Section 112(m) also requires the
 establishment of at least one master wet/
 dry facility on each of the five Great
 Lakes to monitor toxic deposition in wet
 and dry conditions as part of the Great
 Lakes Air Deposition (GLAD) and
 International Air Deposition (IADN)  :
 networks. The GLAD network includes
 22 satellite stations that monitor metals
 and conventional pollutants. The
 United States and Canadian
 Implementation Plan for the IADN    :
 master stations was revised and
 accelerated in order to meet the
 deadlines imposed by the GAAA. Data
 supplied by this effortwillbe used to
 identify^and track movement of
 hazardous air/pollutants; determine
 loadings due to atmospheric deposition;
 and support development of RAPs and  ^
 LaMPs. Other regulatory programs are
 subject to the requirements of       "
 antidegradation if they have    .
 independent regulatory authority     .
 requiring compliance with water quality
 standards. Section 112(m) of the Clean  .
 Air Act has such requirements.  .
   In accordance with section 182 of the
 CAAA of 1990, States .with areas
 designated non-attainment for ozone
 must submit revisions to their
 implementation plans providing for a 15
 percent reduction in volatile.organic
 compound (VOC) emissions, to be   '
 achieved by November 15,1996. As
 many VOCs are also toxic air pollutants, '
 the 15 percent VOC reduction will
 include reductions in numerous air
 toxics. Implementation of regulatory
 programs^ that reduce the emissions of
 VOGs and particulate matter will benefit
 the water quality of the Great Lakes
 System by decreasing atmospheric
 deposition to the System.
   In addition, between 1992 and 2000,
 EPA must  promulgate technology-based
 emission standards for all source
 categories  of the 189 toxic air pollutants
 listed hi section 112(b) of the CAAA. In
 setting these standards, EPA will
 consider inter-media transfer effects.
 Such standards must be fully
 implemented by November 15,2003,    ;
 and will apply to all major stationary
 sources and some area sources of the
 listed pollutants in the States adjacent
 to the Great Lakes System, Under
 section 112(f), these Standards will be
 .followedbetween 2001 and 2008 by
 risk-based standards, where necessary,
 to ensure that public health is protected
 with an ample margin of safety and to
 ensure adverse environmental effects
 are prevented subject to. cost, energy and
 safety considerations. Under section
"112, EPA may add additional substances
 to the list of toxic air pollutants
 (including pollutants of concern in the
 Great Lakes) when scientific
 information dictates additions are
 warranted.  :
   Title IV  of the CAAA provides for a
 reduction in SO2 from utilities of       :
 approximately 10 million tons by 2010,
 Not only will a portion'of this reduction
 occur in the Great Lakes, but many of
 the control technologies permittees are
 likely to use to achieve .these reductions
 may reduce toxic air pollutants, such as
 'mercury, that are specifically of concern .
 in the Great Lakes System.
   Finally, under T,itle n of the CAAA,
 substantial nationwide reductions in
 VOC emissions'from motor vehicles will
 be achieved, including reductions in
 toxic pollutants. Title n also requires.
 EPA to conducta study of mobile Source
 toxic emissions and promulgate  '•-.'
regulations .to control air toxic
emissions from motor vehicles by May
15,1995. Such regulationSn by reducing
ah- toxics emissions nationwide will  ,..'...
benefit the.water quality, of the Great
Lakes System by reducing loadings from
atmospheric deposition.,

7, Storm Water           /   -  •
  The 1987 amendments to the Clean
Water Act, section 402(p), required EPA
to establish a comprehensive, two-
phased approach for controlling storm
water discharges. In Phase L the CWA
required EPA to develop NPDES permit
application requirements for two major •
classes of dischargers: large (over
250,000 population served) and medium
(100,000-250,000 population served)
sized municipal separate storm sewer
systems; and storm water discharges   :
"associated with industrial activity."
Congress also included two other
classes of storm water discharges in '
Phase I: discharges which had already
obtained a permit prior to February 4,
1987, and .discharges which EPA or a
NPDES State determines contribute to a
violation of-a water quality standard or
is a significant contributor of pollutants
to the waters of the United States. The
1987 Amendments, as further amended
by section 312 of the Water. Resources,
Development Act of 1992, prohibit EPA
and NPDES States from requiring "-'..;
permits for the remaining classes and
sources pf storm water discharges--
.(Phase ri) prior to October lj 1994.
  The storm water permit application
Phase I regulations, promulgated on
•November 16,1990, established the
scope of the program. The rule  "
identified 220 large and medium
municipal separate storm sewer systems
(173 cities and 47 counties) for
permitting, defined what constitutes a
storm water discharge "associated with
industrial activity," and established
specific permit application         -.-',••
requirements and deadlines. Permit
application requirements for  large and-
medium municipal separate storm
sewer systems require them to propose
storm water management programs to
control storm water discharges to the
"maximum extent practicable," and to
effectively prohibit non-storm water
discharges to the storm sewer system.
The 1990 .definition of storm water'
discharges "associated with industrial
activity" includes industrial facilities in
the Great Lakes System in such
industries as mining, manufacturing,
hazardous waste treatment, storage and
disposal facilities, landfills, power;
plants and transportation facilities.  '--;•',
These facilities must comply with ....;•
individual or group NPpES permit"
application requirements,; or  meet .

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Federal Register / Vol. 58, No. 72  /  Friday,  April 16, 1993  /Proposed  Rules
requirements specified in general
permits. The controls imposed on the
storm water discharges from these
facilities in individual or general
permits will significantly reduce the
loadings of pollutants to the Great Lakes
System.
8. Combined Sewer Overflows (CSOs)
  EPA is currently improving and
accelerating implementation of the
National Combined Sewer Overflow
Control Strategy (54 FR 37370, Sept 8,
1989). As part of this effort, EPA issued
on January 19,1993, a draft policy that
more clearly defines EPA's
interpretation of,the appropriate
technology-based and water quality-
based requirements to be included in
NPDES permits to control these point
source discharges nationwide. See 58
FR 4994. Representatives of publicly
owned treatment works, States and
environmental groups participated in
developing the permitting component of
the draft policy, which also contains an
enforcement component. EPA expects to
issue the policy in final form during
1993. Additional ongoing efforts to
address CSOs in the Great Lakes System
and the application of the proposed
Guidance to those discharges are
discussed in section IUE,2!b.l of this
preamble.
9. Discharges of Oil and Hazardous
Polluting Substances
  Annexes 4,5,6,8, and 9 of the Great
Lakes Water Quality Agreement address
the discharges of oil and hazardous
polluting substances into the Great
Lakes, including discharges of oil and
hazardous polluting substances from
vessels, discharges of vessel wastes,
pollution from shipping sources,
discharges from onsnore and offshore
facilities, and joint contingency plans.
EPA has initiated several programs
recently to address oil spill prevention
and control measures nationally and in
the Great Lakes System. For example,
EPA proposed a revised Spill
Prevention Control and
Counlermeasures (SPCC) regulation (40
CFRpart 112) in the Federal Register on
October 22,1991 (58  FR 54612). The
proposed rule is intended to clarify
existing regulatory language. EPA also
published a proposed rule in the
Federal Register on February 17,1993,
(58* FR 8824) addressing facility
response plans required under CVVA
section 311(j)(5), added by the Oil
Pollution Act of 1990. Further, EPA
targeted 182 SPCC inspections in the
Great Lakes System during fiscal year
1991 and completed 196.
  Additionally, the Oil Pollution Act of
1990 strengthens United States
                      programs for preventing and responding
                      to spills. Research conducted under
                      Title VH of the OPA to assess the Oil
                      Pollution Act of 1990 strengthens
                      United States programs for preventing
                      and responding to spills. Research
                      conducted under Title VII of the OPA to
                      assess the status of navigation safety,
                      state-of-the-art pollution prevention
                      techniques, and development of
                      efficient oil spill response techniques
                      will benefit the Great Lakes System.
                      EPA and the Coast Guard have mapped
                      areas of the Great Lakes which may be
                      vulnerable to spills and are identifying
                      potential weaknesses in current
                      prevention and response programs.

                     JO. Nonpoint Sources of Pollution From
                      Land-Use Activities
                        Annex 13 of the Great Lakes Water
                      Quality Agreement addresses.programs
                      and measures for the abatement and
                      reduction of nonpoint sources of
                      pollution from land-use activities. The
                      annex addresses efforts to further reduce
                      nonpoint source contributions of
                      phosphorus, sediments, toxic
                      substances and microbiological
                      contaminants contained in drainage
                      from urban and rural land, including
                      waste disposal sites, in the Great Lakes
                      System.
                        Section 118(d){6) of the Clean Water
                      Act requires EPA in consultation with
                      the Great Lakes States to develop a five-
                      year plan and program to reduce
                      nutrient loadings to the Great Lakes.
                      EPA has implemented this requirement
                      within the existing water quality
                      management framework, including
                      through development of Phosphorus
                      Load Reduction Plans. Interagency task
                      forces in each of the Great Lakes States
                      have developed individual State
                      Phosphorus Load Reduction Plans to
                      achieve full compliance with point
                      source discharge limits and reduction of
                      agricultural phosphorus loads through
                      conservation tillage and better nutrient
                      management. Based on these plans, the
                      Phosphorus Load Reduction Task Force
                      has prepared load reduction plans
                      outlining State and Federal efforts
                      necessary to ensure that each State
                      meets its target load reduction.
                        In addition, the Coastal Zone Act
                      Reauthorization Amendments of 1990
                      (CZARA) make available to eligible
                      States funds for the development of
                      nonpoint control programs to restore
                      and protect coastal waters, such as the
                      Great Lakes. Under the CZARA,
                      Michigan, New York, Pennsylvania and
                      Wisconsin, as coastal States with
                      federally approved coastal management
                      programs, are required to develop
                      programs containing enforceable
                      policies and mechanisms in order to
 ensure implementation of management
 measures to address nonpoint pollution
 from agricultural, urban and
 silvicultural runoff and other sources.'
 Participating States must submit their
 programs to EPA and the National
 Oceanic and Atmospheric
 Administration for approval within two
 and a half years of EPA's publication of
 final guidance specifying nonpoint
 source management measures. Final
 guidance was published on January 19,
 1993. See 58 FR 5182. States failing to
 submit approvable programs will lose
 grant funds that would otherwise be     ..
 awarded under section 319oftheCIean
 Water Act and section 306 of the Coastal
 Zone Management Act.
   There is general agreement that
 nonpoint sources of pollution (e.g., any
 diffuse source of pollutant loadings to
• the waters of the Great Lakes System,
 such as contaminated sediments, air
 deposition, spills, etc., as well as   ,
 agricultural and urban runoff) are a
 significant remaining cause of
 environmentalrisk in the Great Lakes
 Basin Ecosystem. In the December 16,
 1992, report, "Evaluation of the
 Guidance for the Great Lakes Water
 Quality Initiative," the SAB endorsed
 the broad based ecosystem approach of
 the Initiative, but stated that it was not
 clear what specific mechanisms the
 Great Lakes Guidance had incorporated
 to address pollution from these
 nonpoint sources.
   In addition to the ongoing State and
 Federal programs described above, the
 proposed Guidance affects nonpoint
 sources in two ways.  First, the water .
 quality criteria and values in the
 proposed Guidance apply to the
 ambient waters of the Great Lakes
- System, regardless of the source of
 pollutants to those waters. Although
 criteria by themselves are not directly
 enforceable under Federal law,
 procedure 3 of appendix F (Total
 Maximum Daily Loads) addresses
 nonpoint sources by requiring allocation
 of the available load capacity of the
 receiving water among all sources of the
 pollutant, including nonpoint sources.
 Second, any regulatory programs
 controlling nonpoint sources developed
 by States or Tribes would also b& subject
 to the antidegradation procedures in the
 proposed Guidance.
    Further, by establishing numeric
 water quality criteria and values for the
 protection of aquatic  life, wildlife and
 human health which apply to the- .-;
 ambient.waters of the Great Lakes
 System, regardless of the source of
 pollutants to those waters, the proposed
 Guidance provides the basis for
 integrating actions carried out under the
 range of environmental-programs

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                -Federal Register /.Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
                                                                     20831
 available'to both Federal, State and  ,
'Tribal regulators in order to protect and
 restore the Great Lakes Basin Ecosystem.
 In this manner, EPA believes the
 proposed Guidance is consistent with
 and furthers an ecosystem approach.
   Additionally, as described in section
. E.G.12 below, EPA and the Gre.at Lakes
 States have established a new program,
 the Great Lakes Toxic Reduction
 Initiative, to evaluate the development
 of specific programs.and
 implementation procedures to control
 loadings of pollutants to the waters of
 the Great Lakes System from nonpoint
: sources, Development of such programs
 would further reduce pollutant loadings
 to the waters of the Great Lakes System
 and facilitate equitable division of the
 costs of any necessary control measures
 necessary to attain water quality
 standards among point and nonpoint
 sources.      ,       -  .

 11. Great Lakes Fish Advisories

   The Great Lakes States-currently have
 issued 184 fish consumption advisories
 that are currently in effect for various'  -
 waters of the Great Lakes System. In the
 United States, the States have the
 primary responsibility for advising the
/public of the risks associated with the
 consumption of sport-caught fish; If a
 potential local health threat exists, a
 State rriay choose to issue warnings or
 provide guidance on the quantity of
 contaminated fish which may be
 consumed. In recent years, while the
 number of restrictions on eating Great
 Lakes fish has declined, State officials
 recommend the continued adherence to
 guidelines for sport fish consumption.
 The Great Lakes States are presently
 reviewing and strengthening the  "
 procedures for issuance of fish
 advisories in the Great Lakes System,  •
 particularly as they perjain to certain
 more-affected segments of the   -'.-.._'
 population, such as subsistence and
 sports fishers. This effort also includes
 an evaluation of the issuance of joint
 fish consumption advisories on multi-
 jurisdictional lakes. A Fish Advisory
 Task Force, composed of representatives.
 from.each Great Lake State and EPA, is
 currently developing a common fish
 advisory protocol. This protocol will
 consider the possible reproductive
 impactsiand other relevant toxicological
 endpoints associated with the
 consumption of contaminated Great
 Lakes fish. Such an approach, once
 adopted and implemented, will provide
 enhanced, consistent, risk-based
 protection of human health.
 12. Environmental Monitoring and Data
 Management Programs for the Great
 Lakes
   EPA has established the
 Environmental Monitoring and r'
 Assessment Program (EMAP) to provide
 a comprehensive program to monitor
 the condition of the nation's ecological
 resources. The Great Lakes are one of
 seven basic resource groups included
 within EMAP (EMAP-GL) which also
 covers the coordination of
 environmental indicators,.statistical
 design and analyses, landscape
 characterization, integration and
 assessment, quality assurance,. •
 information management, geographical
 information services and logistics. The
 data collected under EMAP-GL is    ;
 intended to describe current conditions
 within the Great Lakes System, report
 on ecological trends using a.set of
 environmental indicators on a lakewide
 scale or resolution and evaluate-long-
 term changes in the condition of the
 Great Lakes System as a result of
 management and regulatory programs.
   The Great Lakes National Program
 Office is developing a comprehensive
 data integration and management  .
 strategy for EPA's Great Lakes programs.
 When implemented, the strategy will
 support Federal, State and local efforts
 to restore and maintain the chemical,
 physical and biological integrity of the
 waters of the Great Lakes Basin
 Ecosystem. EEA expects the strategy to
 be completed in 1993.    .

 13. Great Lakes Toxic Reductions
 Initiative Multi-media Management •
 Committee            '          '
   EPA believes an ecosystem approach
 to addressing the environmental
 problems of the Great Lakes defines the
" need to establish consistent, uniform
 programs to reduce loadings of toxic
 pollutants to the waters of the Great
 Lakes System from all sources. This
 ecosystem approach is reflected in the
 Great Lakes Five Year Strategy
 (discussed in section I.G.I), which
 commits the States, .Tribes and Federal:
 Agencies reap onsible for', environmental
 protection and resource management in
 the Great Lakes Basin to achieving
 specific environmental goals.
 Specifically, in the area of toxics ~
 reductions, the Strategy calls for .
 [reducing] the level of toxic substances
 in the Great Lakes System with an
 emphasis on persistent toxic substances,
 so that all~organisms are adequately
 protected and toxic substances are   :
 virtually eliminated from the Great
 Lakes ecosystem. As discussed above, a
 wide range of pollution control,   "
 abatement and prevention activities are
•_ currently underway throughout the
 Great Lakes Basin, implementing,
 numerous statutes and policies at the
 Federal, State and local levels.
   Further, EPA believes that the water
 quality criteria, methodologies,
 implementation procedures and      '
 antidegradation provisions in the "    -  •
 proposed Guidance satisfy the
 requirements of section, 118(c)(2) of the
 CWA and will greatly advance the CWA
 and GLWQA goals to restore and
 maintain the integrity of the Great Lakes
 System. EPA recognizes, however, that
 full achievement of these goals depends
 upon the successful implementation of
 • a variety of media-specific programs. :
 -  Accordingly, EPA and the Great Lakes
 States agreed to establish a multi-media
 process through the "Great Lakes Toxics
 Reduction Initiative" (GLTxRI) to  :
 identify and address any gaps or barriers
 to establishing uniform consistent load
 reduction programs for sources which
 effect the Great Lakes Basin Ecosystem,-
 including whether additional guidance'
. or policies should be developed for any
 particular discharges of toxic pollutants -
 of concern to the waters of the Great" • •"
 Lakes System. A primary goal of the
 GLTxRI is to establish a consistent,
 uniform approach across all media to
 reduce loadings of toxic pollutants to
 the waters of the Great Lakes System,
 and accelerating scheduled actions in
 order to achieve necessary reductions.
   The range of sources ortoxic  :
' pollutants to be addressed under the
 GLTxRI includes, but is not limited to-
 agricultural nonpoint sources, wet-
 weather point source discharges,
 hazardous waste sites, air deposition,
 contaminated sediments and spills due
 to storage^ handling or transport
 activities.,In conjunction with the' .. .-.
 numeric-water quality criteria and
 values, implementing procedures and
 antidegradation policies established
 through the final publication of the
 Great Lakes Water Quality Guidance,
 this process will provide EPA and the.
 Great Lakes States and Tribes with a
 comprehensive, integrated framework
 for  reducing toxic loadings to the waters
 •of the Great Lakes System', with the goal
 of virtually eliminating toxic pollutants;
 Of specific concern to EPA and the
 States is the reduction of those
 pollutants classified as Bioaccumulative
 Chemicals of Concern in the proposed
 Guidance, as they pose the greatestrisk
 to the Great Lakes Basin Ecosystem in
 terms of systemwide impacts. Together,
 these activities will enable EPA and the
 Great Lakes States and Tribes to develop
 cost-effective strategies to further the
 goals and requirements of the CWA and
 the GLWQA, and ensure attainment of
 the water quality criteria and values

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20832	Federal Register / Vol.  58, No. 72  / Friday, April 16, 1993 /  Proposed Rules
established through the publication of
the final Great Lakes Guidance.
  One particular issue the GLTxRI
management committee will focus on is
the inter-media transfer of pollutants.
EPA and the Great Lakes States are
concerned that future reductions in
loadings of toxic pollutants to the water
may causa the transfer of pollutants
from one media to another—e.g., from
water to air—rather than overall
reductions in loadings to the
environment. As a result of this
concern, the GLTxRI management
committea will identify and evaluate
measures for minimizing inter-media
transfers. Possible measures for        -
consideration include whether a
permittee shall be required to provide
information on how it will comply with
any more stringent limitations in a draft
permit, including information relevant
to the transfer of pollutants from one
medium to another, whether the
reduction would be attributable to
source reduction techniques, and
whether the facility has evaluated any
altemativa pollution prevention
measures.
  The SAB in its December 16,1992,
report, Evaluation of the Guidance for
the Groat Lakes Water Quality Initiative,
recommended that EPA promote a
broadly based ecosystem approach
which considers not only point source
discharges but nonpoint sources,
sediments, atmospheric fall-out, and
groundwater as targets for conservation
and control of undesirable loadings.
EPA bolieves through implementing the
full rango of existing regulatory and
voluntary programs described above to
prevent pollutants from being
introduced, reduce pollutant loadings
currently being discharged, and
remediate the adverse effects associated
with past pollutant discharge to the
Great Lakes System, a comprehensive
ecosystem approach to protecting and
restoring the Great Lakes is being
actively pursued  by EPA and the Great
Lakes States and Tribes. Further, EPA
believes the application of the numeric
water quality criteria and values
proposed hi the proposed Guidance to
the ambient waters of the Great Lakes
System, regardless of the source of
pollutants to those waters, is consistent
with and promotes the ecosystem
 approach.
H. References                 .

Adler, A.C. et al. 1993. Reductive
  ' Dechlorination of Polychlorinated
    Biphenyls in Anaerobic Sediments.
    Environ. Sci. Technology 27(3):530-538.
Andre, A.W., D.N. Edgington, J. Manchester,
    S. Murphy, D. Pham, M. Vogel, Z.
    Matacz. 1993. Application of the Mass
    Balance Approach to Green Bay:
    Sediment Loading, Fluxes and
    Redistribution of PCBs, Dieldrin, and
    Other Chlorinated Hydrocarbons. Draft
    report under EPA Grant Number:
    R005017-01.
Baker, J.E. and S.E. Eisenreich. 1989. PCBs
    and PAHs as tracers of particulate
    dynamics in large lakes. J. Great Lakes
    Res. 15(1):84103.
Ballschmitter, K., M. Zell, and Z. Freseniuz.
    "1989. Anal. Chem. 302:20-31.        .
Beltran, R.F. 1992. Green Bay/Fox River Mass
    Balance Study, Preliminary Management
    Summary. U.S. EPA Great Lakes
    National Program Office.
Capel, P.D. and S.J. Eisenreich. 1985. PCBs in
    Lake Superior, 1978-1980. J. Great Lakes
    Res. 11(4):447-461.
DeVault, D.S., W.A. Wilford, R.J. Hesselberg,
    D. A. Nortrupt, E.G.S. Rundberg, A.K.
    Alwan and C. Bautista. 1986.
    Contaminant trends in Lake Trout
    (Salvelinus namaycush) from the upper
    Great Lakes. Arch. Environ. Contain.
    Toxicol. 15:349-356. Contains data
    published through 1982.
DeVault, D.S., J.M. Clark, G. Lahvis and J.
    Weishaar. 1988. Contaminants and
    trends in fall run Coho salmon, J. Great
    Lakes Res. 14(l):23-33. Contains data
    published through 1984.
DeVault, D.S. 1993a. Data on contaminant
    trends in Lake Trout (Unpublished).
    Contains data for 1984-1990.
DeVault, D.S. 1993b. Data on contaminant
    trends in fall run Coho salmon
    (Unpublished). Contains data for 1986-
    1990.
Durham, R.W. and-B.G. Oliver. 1983.  History
    of Lake Ontario contamination from the
    Niagara River by sediment radiodating
    and chlorinated hydrocarbon analysis. J.
    Great Lakes Res. 9(2):160-168.
Eadie, BJ. and J.A. Robbins. 1987. The role
    of particulate matter in the movement of
    contaminants in the Great Lakes. In.
    Kites, R.A. and S.J. Eisenreich, ed., -.
    Sources and fates of aquatic pollutants,
    American Chemical Society,
    Washington, DC, pp. 319-364.
 Eisenreich, S.J. 1987. The chemical
    limnology of nonpolar organic
    contaminants: polychlorinated biphenyls
    in Lake Superior, In Sources and Fates _
    of Aquatic Pollutants, A.R. Kites and S.J.
    Eisenreich, ed., American Chemical
    Society, Washington, DC, pp. 393-469.
 Eisenreich, S.J. et al. 1989. Environ. Sci. and
    Technology, 23:11,16-1126.
 Environment Canada, Fisheries and Oceans
    Canada, and Health and Welfare Canada.
    1991. Toxic Chemicals in the Great Lakes
    and Associated Effects: Synopsis.  .
    Toronto, Burlington and Ottawa.
Great Lakes Science Advisory Board. 1990i
    Final report of the ecosystem objectives
    committee, March 1990. Windsor,
    Ontario.
Hermansori, M.H., E.R. Christensen, D.J.
    Buser and L. Chen. 1991.
    Polychlorinated biphenyls in dated
    sediment cores from Green Bay and Lake
    Michigan. J. Great Lakes Res. 17(1):94-
    108.
International Joint Commission, Sediment
    Subcommittee. 1988. Procedures for the
    Assessment of Contaminated Sediment
    Problems in the Great Lakes.       *•
Jafvert, C7T. 1991. Polychlprinated biphenyls.
    In Biological Remediation of
    Contaminated Sediments, with Special'
    Emphasis on the Great Lakes, Report of
    a Workshop, July 17-19,1990, C.T.
    Jafvert and J.E. Rogers, ed., U.S. EPA,
    EPA/600/9-91/001.
Kubiak, T.J., H.J. Harris, L.M. Smith, T.R.
    Schwartz, D.L. Stalling, J.A. Trick, L.
    Sileo, D.E. Docherty and T.C. Erdman.
    1989. Microcontaminants and
    reproductive.impairment of the Forster's
    tern on Green Bay, Lake Michigan—
    1983. Arch. Environ. Contain. Toxicol.
    18, 706-727.
Legault, J. and T.. Kuchenberg. 1978.
    Reflections in a Tarnished Mirror: The
    Use and Abuse of the Great Lakes.
    Golden Glow Publishing, Sturgeon Bay,
    WI.
Ludwig, J.P. and H. Kurita. 1988. Colonial  ,
    bird deformities—An effect of toxic
    chemical residues in the Great Lakes? In
    The Great Lakes: Living with. North.
    America's Inland Waters, Proceedings of
    a Symposium. D.H. Hickcox, ed.,
    American Water Resources Association,
    Bethesda, MD.
Mackay, D. 1989. Modeling the long-term
    behavior of an organic contaminant in a
    large lake; application to PCBs in Lake
    Ontario. J. Great Lakes Res. 15(2):283-
    ' 297.                     _„
Peakall, D.B. 1988. Known effects of
    pollutants on fish-eating birds in the
    Great Lakes of North America, Chapter 4
    pp. 39-54 in Toxic Contamination In
    Large Lakes, Volume 1 Chronic Effects of
    Toxic Contaminants in Large Lakes,
    N.W. Schmidtke, ed. Lewis Publishers,
     Chelsea, MI.              .
Quinn, F.H.  1992.  Hydraulic residence times
    for the Laurentian Great Lakes, J. Great
•   Lakes Res. 18(l):22-28.
Rathke.'D.E. and G. McRae. 1989.1987
    Report on Great Lakes Water Quality,
     Appendix B: Great Lakes Surveillance,
     Volume IH. Report of the Great Lakes
     Water Quality Board to the International
     Joint Commission, Windsor, Ontario, pp.
     6.1.1-6.1.36.            ,
 Richardson, W.,.D.Endicott, D. Patterson.
     1993. Addendum to the Green Bay/Fox
     River Management Summary Report.
     U.S. EPA.

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                            Register / Vol. 58. No.  72, / Friday, April 16, ;1993  /  Proposed Rules
                                                                       20833
   Spangler, G.R. 1988. Perspectives on the
      influence of toxic substances on, fishery
      productivity. Chapter 11 pp.193-207 in
      Toxic Contamination in Large Lakes,
      Volume IT, Impact of Toxic Contaminants
     ; on-Fisheries Management, N.W.
      Sehmidtke, ed. Lewis Publishers,
      Chelsea, MI.   .                 ,
   Strachan, W.M.J. and M.G. Henry, chrs. 1990.
      Final report of the Ecosystem Objectives
      Committee. Report to the Great Lakes
      Science Advisory Board of the  ~  :
   :  "International Joint Commission,
      Windsor, Ontario, ,
   U.S. EPA Great Lakes National Program     :
      Office. 1989. Green,Bay Mass Balance
      Study Plan: A Strategy for Tracking
      Toxics in the Bay~6f Green Bay, Lake,
   -• •  Michigan.         '    ,          -
   U.S. EPA. 1989. Cooperative agreement
      between the U.S. Environmental
      Protection Agency, Great Lakes National
..: -   Program Office (GLNPO) and the U.S.
      Fish and Wildlife Service, National
     . Fisheries Research Center—Great Lakes
      (NFRG-GL), July 13,1989. Example of
      cooperative agreement specifying da'ta
      Collection supporting, e.g., DeVault et al.,
   .   1986; DeVault etal., 1988; DeVault,
      1993a; DeVault 1993b.
   U.S. EPA. 1993. Derivation of Proposed  '
      Human Health and Wildlife
      Bioaccumulatibn Factors for the Graat
      Lakes Initiative. NTIS Number; PB93-  -
      154672. JERIC Number: 3920.
  Wiemeyer, S.N., T.G. Lamont, C.M. Bunck,
      C.R. Sindelar, F.J. Gramlich, J.D. Fraser,
      and M.A. Byrd. 1984. Organochlorine
      pesticide, polychlorobiphenyl, and    .- .
     mercury residues in bald eagle eggs-^-
      1969-79—and their relationships to
     shell thinning and reproduction. Arch.
     Environ. Contam. Toxicol. 13:529-549.
  Willford, W.A., R.A. Bergstedt, W.H. Berlin,
     N.R. Foster, R.J. Hesselberg, M.J. Mac,
     D.R. M. Passmo, R.E. Remert and D.V.
   ;  'Rottiers. 1981. Chlorinated hydrocarbons
    . as a factor hi the reproduction and  ,
      survival of lake trout (salvelinus  .
     namaycush) in Lake Michigan. Teclmical
     Paper 105 of the U.S. Fish and Wildlife
      Service, Great Lakes Fisheries
      Laboratory, Ann Arbor, MI.
  U.S. EPA. 1992. National Study of Chemical
     Residues in Fish, EPA 823-R-92-008a.

  II. Regulatory Requirements
    The proposed Guidance consists of a
  new part 132 of Title 40, Water Quality
  Guidance for the Great Lakes System.
  this section of the preamble describes
  the overall regulatory requirements that
  EPA proposes for adoption by the Great
  Lakes States and Great Lakes Tribes.

  A. Scope and Purpose          -\',  ••  •
    The Guidance consists of regulatory
  requirements, contained in part 132,
 . including six appendixes that provide
  the text of the .Water Quality Guidance
  that the Great Lakes States and Tribes
  must adopt into their Jaws and
  regulations. Part 132 as a whole
  constitutes the Water Quality Guidance
  for the Great Lakes System required by
  section 118(c)(2) of the Clean Water Act
  (Pub. L- 92-500 as amended by the
  Great Lakes Critical Programs Act of
  1990, Pub. L. 101-596).
    Today's proposal also is intended to
  satisfy the requirements of section
  118(c)(7)(C) of the Clean Water Act that
  EPA publish information concerning the
  public health and environmental
  consequenees of contaminants in Great
.  Lakes sediment and that the information
  include specific numerical limits to
  protect health, aquatic life, and wildlife
  from the bioaccumulation of toxins.
    The Guidance has three major
  purposes. First, it provides guidance to
  the Great Lakes States and Tribes on
  minimum water quality standards. To
  accomplish this, the Guidance contains
  numerical water quality criteria for 32   :
  pollutants, listed iiLTables 1,2,3 and
  4 in § 132.3. The Guidance also contains
  methodologies for the development of
  water quality criteria and water quality
,  values for the protection of aquatic life,
  human health, and wildlife, and a
  methodology for development of
  bioaccumulation factors, in appendixes
  A, B, C and D.  Together, these criteria
  and methodologies specify numerical
'  limits on pollutants in ambient Great
,  Lakes waters to protect human health,
  aquatic life, and wildlife.
.    The second purpose of the proposed
  Guidance is to provide guidance to the
  Great Lakes States and Tribes on
  antidegradation policies and to require
  adoption of the Antidegradation
  Standard, the Antidegradation
  Implementation Procedures, the
 Antidegradation Demonstration
 provisions, and the Antidegradation
 Decision provisions in appendix E.
   The third purpose of the proposed
 Guidance is to provide guidance on
 implementation procedures, through the •
 Water Quality Guidance
 Implementation Procedures at § 132.5   '
 and in appendix F. Some portions of the
 Implementation Procedures also affect
, the adoption of minimum water quality .
 standards.           ,

 B. Definitions .   ,      •        ''.-..  •
.   Section 132.2 of theproposed   .
 Guidance contains definitions which
 apply to this part. Section 132.2 is a .
 partial list of terms which need to be -
 defined for consistent interpretation of •
 the Guidance in this part. Section:,
 132.4(a) of the proposal requires Great
Lakes States and Tribes to adopt these
 definitions as part of their water quality
 standards or approved NPDES
programs. Other definitions, bearing on
the individual portions of the Guidance,
are contained in appendixes A through
F.  Generally, where terms have been
 applied in the Guidance in the same
 manner as in previous National .
 regulations, such as those in 40 CFR
 122.2,130.2, and 131.3, a duplicate
 definition has not been provided.
 However, in some cases, duplicate
 definitions have been provided to assist
 the reader. The following paragraphs -
 describe the origin of the terms defined
 in§132.2.
   The definition of "Great Lakes
 System":is from section 118 of the Clean
 Water Act (CWA) and the Great Lakes
 Water Quality Agreement (GLWQA or
 Agreement). It is providedfor the
 convenience of the reader. Great Lakes'
 States and Tribes must apply the .• '.
 provisions of the Guidance to all
 portions of the Great Lakes System
 within their jurisdiction. Waters tif the
 Great'Lakes System located within the
 United States are "waters of the United
 States" as defined in 40 CFR 122.2.
  The terms "connecting channels of
 the Great Lakes" and "Great Lakes" are
 from section 118 of the Glean Water Act, _
  The terms "load allocation," "loading
 capacity," "total maximum daily-load"
 and "wasteload allocation" are ,
 duplicated from 40 CFR part 130, and
 areincluded in this proposed Guidance
 to assist the reader. EPA requests
• comments on the use of these
 definitions in part 132. However, EPA is
 not proposing today to revise 40 CFR
 part 130, and is therefore not soliciting
 comments on 40 CFR part 130.:^
  The terms "existing uses," "Federal
 Indian reservation" and "Indian Tribe"
 are duplicated from 40 CFR 131.3, and
 are included in this proposed Guidance
 to assist the reader.
  The terms "acute/chronic ratio,"
 "acute toxic unit (TUa)," "chronic toxic
 unit (TUc)," "EC50," and "no observed
 effect concentration" are adapted from
 the March 1991 EPA guidance
 document, "Technical Support
 Document for Water Quality-based
 Toxics Control (TSD)." The TSD has
 undergone extensive peer review, and
 EPA.believes the technical definitions
 derived from the TSD are valid
 technically and scientifically. However,
 there may be policy or administrative
 implications" fromadopting; these
 definitions in the proposed Guidance
 that were  not considered at the time the
 TSD was developed. EPA invites
 comment  on the use of these definitions
in pairt-132. However, EPA is not
proposing today to revise the TSD, and
is therefore not soliciting comments on
the TSD in this proposed rulemaking.
  The terms "open waters of the Great
Lakes" and "tributaries of the Great
Lakes System" were developed  -- .   -
primarily  to facilitate application of
requirements that, for technical reasons,

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20834
Federal Register / Vol. 58, No. 72 7 Friday, April 16, 1993 / Proposed Rules
have different application or effects
depending on the type of water body.
EPA invites comments on these
definitions.
  The term "bioaccumulative chemical
of concern" is discussed in section n.G
of this preamble.
  The term "wet weather point source"
is discussed in section II.E of this
preamble.
  The term "Great Lakes States and
Groat Lakes Tribes" is defined in the
proposed Guidance to clarify which
States contain portions of the Great
Lakes System within their boundaries
(i.e., Illinois, Indiana, Ohio, Michigan,
Minnesota, New York, Pennsylvania,.
and Wisconsin). The proposal also
includes within the definition any
Indian Tribe as defined below whose
reservation lies in whole or in part
within the drainage basin  of the Great
Lakes, and that EPA has determined
qualifies under section 518 of the Clean
Water Act to administer programs under
sections 303 (see 40  CFR 131.8) and/or
402 of the Clean Water Act.
  The proposal includes Indian Tribes
in this definition because section 118(c)
requires the water quality guidance to
apply to the Great Lakes System, and
some portions of the Great Lakes System
are located within the boundaries of
Indian Reservations. Tribes are not
required to apply for authorization to
administer programs under sections 303
or 402 of the Clean Water Act, However,
if they do, they are required to adopt
requirements consistent with section
118 of the Clean Water Act and the final
Guidance adopted in part 132 in order
to control discharges into the Great
Lakes System to the same extent as
Great Lakes States. If they do not, EPA
or State water quality standards which
may apply to Indian Reservations must
incorporate the requirements of part
132, and EPA will incorporate the
requirements of this part into EPA-
issued permits for discharges on Indian
Reservations. For further discussion of
how the water quality standards
program operates on Indian
Reservations, see 54 FR 64891 Pec. 12,
1991).
  EPA believes that inclusion of Indian
Tribes in the proposed Guidance is
consistent with section 518 of the Clean
Water Act While section 518(e) does
not explicitly address Tribal assumption,
of responsibilities under section
118(c){2), it does address water quality
standards and NPDES programs which
are the base programs addressed by the
section 118(c){2) requirements. Section
518 clearly allows Indian Tribes to be
authorized to administer both water
quality standards and NPDES programs,
and EPA sees no reason why Indian
                      Tribes should not be similarly treated
                      for purposes of section 118(c)(2).
                      Indeed, were EPA not to require that
                      Indian Tribes comply with the proposed
                      requirements in the proposed Guidance,
                      there could be a gap in the protection of
                      the Great Lakes System. EPA does not
                      believe that Congress would have
                      intended this result.
                        EPA invites comment on the
                      inclusion of Indian Tribes in this
                      definition, including  the policy,
                      administrative and resource
                      implications of requiring Indian Tribes,
                      who are authorized to administer
                      programs under sections 303 and/or 402
                      to adopt the provisions of this
                      Guidance. At this time, there are no
                      Indian Tribes authorized to administer
                      programs under either section 303 or
                      section 402 within  the boundaries of the
                      Great Lakes System. EPA intends to
                      work with the  Great Lakes Indian Tribes
                      on a govemment-to-government basis to
                      provide them with  a greater
                      understanding of the  Great Lakes      •
                      Guidance and its impact on Tribal
                      governments. To achieve this, EPA
                      plans to develop a specific outreach .
                      program with the Great Lakes Tribes
                      within the context  of a broader public
                      forum to inform the public on the
                      elements of the Guidance.
                        The terms "carcinogen,"
                      "noncarcinogen," "quantitative
                      structure activity relationship," "slope
                      factor," "threshold effect," and
                      "uncertainty factors" are derived from
                      EPA's risk assessment methodologies,
                      and were adapted for application in this
                      Guidance. These terms and their usage
                      are discussed in sections V and VI of
                      this preamble.
                        The terms "compliance evaluation
                      level," "detection level," "minimum
                      level," and "quantification level" are  „
                      discussed in section VHI.H of this
                      preamble. The term "detection level" is
                      from 40 CFR 136.2(f), and is provided
                      for the convenience of the reader.
                        The terms "acceptable daily
                      exposure," "acute toxicity," "adverse
                      effect," "bioaccumulation factor,"
                      1 'bioaccumulation,''' 'bioconcentration,''
                      "bioconcentration factor," .
                      "biomagnification," "chronic toxicity,"
                      "depuration," "LC50," "linear multi-
                      stage model,"  "lowest observed adverse
                      effect level," "no observed adverse
                      effect level," "octanol-water partition
                      coefficient," "relative source
                      contribution," "steady state BAF/BClV'
                      "superlipophilic chemical," and
                      "uptake" are derived from common
                      usage by toxicologists and biologists,
                      and were adapted for application in this
                      proposed Guidance. These terms are
                      discussed further in sections HI through
                      VI oaf this preamble, in appendixes A
through D, and in the corresponding
Technical Support Documents.
  The term "threatened or endangered
species" is defined for the purposes of
the proposed Guidance as those species
that are listed as threatened or
endangered under the Federal
Endangered Species Act. This definition
is discussed in section ILK of this
preamble.
  The terms "human cancer criterion,"
"human cancer value," "human
noncancer criterion," "human
noncancer value," and "risk associated
dose" are discussed  in section V of this
preamble.-The selection of the one in
100,000 risk level for human cancer
criteria and values, and risk associated
dose, is also discussed further in section
V.           •
  The terms "criterion continuous
concentration," "criterion maximum
concentration," "final acute value,"
"final chronic value," "final plant
value," "genus mean acute value,"
"genus mean chronic value," "species
mean acute value," and "species mean
chronic value" were adapted from
EPA's "Guidelines for Deriving
Numerical National  Water Quality
Criteria for the Protection of Aquatic
Organisms and Their Uses" (Stephan, et
al., 1985) for application in the
proposed Guidance." These terms are
explained more fully in appendix A of
the proposed Guidance and in section
III of this preamble.
  The terms/'Tier I  criteria" and "Tier
II values" are provided to differentiate
between products of Tier I
methodologies which either have been
adopted as numeric  criteria into  water
quality standards or are used to
implement narrative criteria ("Tier I
criteria"); and products of Tier II
methodologies which are used to
implement narrative water quality   '
criteria ("Tier II values"). (Sections III, V
and VI of this preamble explain the use
of Tier I and n methodologies in this
proposed Guidance. EPA invites
comment on these definitions.
  The  terms "allowable dilution flow
(Qad)." "dilution fraction," and "stream
design flow" are discussed in section
VIII.C of this preamble.
  EPA invites comment on all
definitions used in the proposed
Guidance. EPA also  invites comments
on whether additional terms should be
defined in this part.

C. Adoption of Criteria, Methodologies,
and Procedures
  Section 132.3 of the proposed
Guidance requires Great Lakes States
and Tribes to adopt  numeric criteria for
16 pollutants for the protection of
aquatic life, listed in Tables 1 and 2;

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                 Federal Register /Vol. 58, No.  72 /Friday, April 16, 1993 /Proposed Rules
                                                                     20835
 numeric criteria for 20 pollutants for the
 protection of human health, listed in
• Table 3; and numeric criteria for 4
 pollutants for the protection of wildlife,
 listed in Table 4. Section 132.4 of the ,
 proposed Guidance requires Great Lakes
 States and Tribes, to adopt the
. methodologies for developing numeric
,water quality criteria and values to
 protect aquatic life, human health, and
 wildlife specified in appendixes A
 through D. Section 132.4 also requires
 Great Lakes States and Tribes to adopt
 the Antidegradation Policy in appendix
 E and the Implementation Procedures in
 appendix F. *
   The Great Lakes Initiative Committees
 developed the basis for the procedures
 required in the proposed Guidance
 because of a strong concern about the
 environmental problems in the .Great
 Lakes System and a concern that
 differences in water quality standards,
 antidegradation policies, and
 implementation procedures were    ;
 leading to significant inconsistencies in
 regulatory approaches between the
 States. For example, human health
 criteria for mercury range from 0.0069
 ug/L in one Great Lakes State, to 2.0 ug/
 L in another, with iio two States having
 the same value. Similarly, aquatic Me
 chronic criteria for cadmium range from
 0.471 ug/L to 1.4 ug/L, and human.
. health criteria for benzene range from
 0.7 ug/L to 710.0 ug/L, As another
 example, only two States have
 developed explicit water quality criteria
 for the protection of wildlife. Further
 examples of significant differences
 between existing water quality programs
 include:             ;
   1. The use by some States of
 biqaccumulation factors when
 calculating exposure, while other States
 use the less restrictive bioconcentration
 factors. These practices can lead to
 differences of several orders of,  -
 magnitude in the stringency of water
 quality-based controls.
   2. The use of different "translator"
 methodologies in developing derived
 numeric criteria for implementing    ,
 narrative"water quality criteria.
   3. The use of different assumptions
 when calculating total maximum daily
 loads and waste load allocations. For,
' example, different assumptions about
 background concentrations, mixing
" zoiies.-receiving water flows, or
 environmental fate can each     ,
 individually, result in orders of  ,
 magnitude differences in water quality-
 based effluent limits in NPDES  ;
 discharge permits,  ,
   4. The use of different practices in
 deciding what pollutants need to be
 regulated in a discharge, what effect
 dete'ction limits have on compliance
 determinations, and how to develop
 whole" effluent toxicity limitations.
   For these reasons, the Steering -
 Committee chose to develop guidance
 on those aspects of current State water
 quality standards programs and      .  •
implementation procedures which have
 led to the most serious inconsistencies
 among the Great Lakes States' water
 quality programs, hi order to maximize
 use of available time and resources, the
 Steering Committee did not develop
 guidance on areas that were currently
 being addressed through other programs
 or initiatives, or for implementation
 procedures that relied primarily on best
 professional judgment determinations of
 permitting authorities. The Steering
 Committee beh'eved that uniform
 requirements were most necessary for
 the criteria methodologies, anti-   ,
 degradation policies, and selected    '
 implementation procedures to ensure
 consistent permit limitations for similar1
 discharges throughout the Great Lakes
 basin. The results of the Steering
 Committee's work formed the basis for
 EPA's development of the proposed
 Guidance.
   The areas not addressed in the  '
 proposed Guidance would continue to
 he subject to all applicable Federal,
 State, or Tribal requirements or
 guidance. For example, the EPA
 guidance document' 'Technical Support
 Document for Water Quality-based   :
 Toxics Control" (March 1991)remains
 fully applicable as evidence within the
 Great Lakes System for topics that have
 not been addressed by the proposed
 Guidance, and fully applicable as
 guidance for all topics for waters
 outside the Great Lakes System.
 D. Application of Methodologies,
 Policies, and Procedures
 1. The Two-Tiered Approach
   The Initiative Committees were
 concerned that traditional criteria
 development methodologies would hot,
 be adequate to address the wide range
 of pollutants in the Great Lakes System.
 In particular, in order to assure the
 scientific validity of criteria as
 protective of designated uses, criteria
 methodologies include minimum  •
 requirements for lexicological data that:
 may be difficult to meet except for a
 limited number of well-studied
 pollutants. In many cases, the full
 complement of toxicity data is not
"available for a particular pollutant
 which is nevertheless known or
 expected to cause adverse effects to
 humans, aquatic life, and wildlife.. Some,
 of the Great Lakes States currently have
 procedures that are intended for use as
 translator mechanisms to derive   ''.,
 numeric ambient pollutant     :
 concentrations that will implement, in
 conjunction with the proposed whole
 effluent toxicity requirements, the
 States' narrative criteria (e.g., "no toxic
 substances in toxic amounts"),,The
 Initiative Committees wanted to ensure
 consistency among States in the Great  -
 .Lakes System as to how limited data are
 used to derive values for regulating • -
 discharges. The Initiative Committees
 also wanted to develop a methodology
 to be used as a translator mechanism
 common to all Great Lakes States that
 could be used in setting permit limits
 for the Great Lakes System.
   To address these needsrthe
 Committees developed a two-tiered
 approach, including:
_  a. Traditional criteria development
 methodologies, to enable development
 of water quality criteria (Tier I); and.
   b. Methodologies under which water •
 quality values (Tier n)  could be
 calculated with fewer data than the full
 minimum data required for a Tier I
 criterion calculation. The purpose of
 Tier n methodologies is to provide Great
 Lakes States with guidance on         •
 evaluating pollutants when there is '..  .
 insufficient data to develop Tier I
 criteria.         ••;
   The Initiative Committees intended
 that the outcome of a Tier H analysis
 would be a somewhat conservative
 value to reflect the increased
 uncertainty surrounding a more limited
 database. For example, for aquatic life
 criteria, this consideration resulted in
 the development of a methodology
 which generally produces more
 stringent (lower) values where there are
 fewer data, and less stringent values as
 the database" increases.
   EPA believes'that a uniform method
 will advance the goals  of the Great
 Lakes Critical Programs Act (CPA). First,
 EPA believes that the additional
 protection that the Tier n approach will
 provide is consistent with the objectives
 of the Great Lakes Water Quality
 Agreement, as incorporated into section
 118 of the Clean Water Act. Article H of
 the GLWQA provides that the United
 States and Canada will make maximum
 efforts to develop programs, practices
 and technology necessary for a better
 understanding of the Great Lakes
 System, and to eliminate or reduce to
 the maximum extent practicable the
 discharge of pollutants into Great Lakes
 waters. Article HI provides general
 narrative objectives for the Great Lakes
 System including that  the Great Lakes
 waters should be iree from deleterious
 substances including p ollutants that are;
 toxic or harmful to humans, animals of
 aquatic life. The conservative Tier It' •'.''.

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Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
method proposed will contribute to the
more rapid achievement of these goals.
  Additionally, EPA believes that the
Tier n approach is consistent with
Congress goals and objectives. The
legislative nistory of the CPA indicates
that Congress recognized that the Great
Lakes is both a unique, interconnected
ecosystem and a unique National
resource that might require unusual
measures to protect. See, for example,
136 Cong. Rec. S. 15622-23, Oct. 17,
19SO (Son. Kohl); S. Rep. No. 101-339,.
101st Cong., 2d Sess. at 7. EPA believes
that Congress gave EPA discretion to
regulate the Great Lakes waters more
stringently than other waters of the
United States, where a more stringent
approach would promote more rapid
achievement of desired water quality
across the Great Lakes basin.
Consequently, EPA is proposing Tier n-
methods for aquatic life, human health,
and wildlife protection that the
Initiative Committees developed.
Sections D.2 and D.3 below describe the
two-tiered approach in more detail.
2, Application of Tier I Methodologies
  The proposed Guidance requires
Great Lakes States or Tribes to use the
Tier I methodologies in appendixes A
through D when adopting or revising
numeric water quality criteria. In
addition, if a Great Lakes State or Tribe
has not adopted a numeric water quality
criterion for a pollutant in its water
quality standards, but enough data
exists to meet Tier I minimum data
requirements, § 132.4(c) requires use  of
the Tier I methodologies for any
development of numerical criteria to
implement narrative criteria. As
discussed further below, such
implementation would include
development of water quality-based
effluent limits, where appropriate.
  This approach is less flexible than
currently allowed under 40 CFR part
131, where States may use EPA's section
304(a) methodologies, or any other
scientifically defensible method, in
developing numeric criteria and
implementing narrative criteria. EPA
believes that the proposed approach is
desirable and consistent with
Congressional intent in order to achieve
a greater degree of consistency of water
quality-based controls within the Great
Lakes System.
  The proposed Guidance also includes
proposed numeric criteria in Tables 1
through 4 of part 132 that were derived
using the Tier I methodologies. EPA is
proposing to require Great Lakes States
and Tribes to adopt these specific
numeric criteria into their water quality
standards for the Great Lakes System.
                        Over time, a database from which
                      both numeric Tier I water quality
                      criteria and Tier n water quality values
                      can be derived will expand. EPA Region
                      5, in cooperation with Regions 2 and 3,
                      Headquarters offices, and the Great
                      Lakes States and Tribes, will establish a
                      clearinghouse for these environmental
                      data. As additional data become
                      available or additional Tier I numeric
                      criteria and Tier II values are calculated
                      by EPA, States, or Tribes, Region 5 will
                      ensure that this information is
                      disseminated to the Great Lakes States
                      and Tribes. Regions 2, 3 and 5, through
                      their review and approval of State water
                      quality standards under section 303 of
                      the Clean Water Act, will ensure that
                      the Great Lakes States and Tribes
                      maintain the minimum consistent level
                      of protection for aquatic life, human
                      health, and wildlife throughout the
                      Great Lakes System provided by
                      application of the methodologies
                      promulgated in the final Guidance.    ,
                        The proposed rule does not alter
                      existing regulations under 40 .CFR part
                      131 concerning when a State is
                      obligated to adopt a numeric water
                      quality criterion beyond those specified
                      in Tables 1 through 4 of the proposed
                      Guidance. Section 303(c)(2)(B) currently
                      requires States to adopt numeric criteria
                      for toxic pollutants for which section
                      304(a) criteria are available, and which
                      could reasonably be expected to
                      interfere with designated uses. EPA
                      regulations do not specify other
                      instances where numeric criteria are
                      required, though EPA has the authority
                      to identify such instances on a case-by-
                      case basis under section 303(c)(4) of the
                      Clean Water Act.
                        One alternative to the proposed
                      Guidance would be to broaden the
                      States' and Tribes' obligation to adopt
                      numeric Tier I criteria into water quality
                      standards. Specifically, EPA could
                      instead require the Great Lakes States
                      and Tribes to adopt a Tier I criterion
                      into their water quality standards when
                      sufficient toxicological data exists under
                      a Tier I methodology, and when the
                      pollutant could reasonably be expected
                      to interfere with the designated uses in
                      ambient waters, for all pollutants •
                      including pollutants for which EPA had
                      not developed National criteria under.
                      section 304(a). EPA decided-not to
                      propose this alternative, however,
                      because it may increase the
                      administrative burden on Federal, State
                      and Tribal authorities without
                      necessarily providing a significant
                      advantage over EPA's periodic review of
                      State or Tribal water quality standards
                      to determine the need for numeric water
                      quality criteria. Another alternative
                      would be for EPA to amend Tables 1
 through 4 in future rulemaking to
 include additional Tier I criteria as
 sufficient data become available or are
 evaluated, and require the Great Lakes
 States and Tribes to adopt these criteria
 into their water quality standards. EPA
Jnvites comment on these or other
 alternatives to the proposed Guidance,
 including the advantages and
 disadvantages of requiring Great Lakes
 States and Tribes to adopt any Tier I
 criterion subsequently calculated or
 approved by EPA into their water
 quality standards for the Great Lakes
 System.
  Section 132.4(c) also requires the use
 of Tier I methodologies when
 developing numeric criteria to
 implement State or Tribal narrative
 criteria if data satisfying the Tier I
 minimum data requirements are
 available. For example, if a State or
 Tribe is deriving numeric criteria for a
 pollutant to implement the narrative
 criteria and data are available that meet
 the minimum data requirements for Tier
 I, then the State or Tribe must use the
 Tier I methodologies in the proposed
 Guidance in deriving the numeric
 criteria. In this example, because the
 State or Tribe is not proposing to adopt
 the numeric Tier I criteria into water
 quality standards, the  State or Tribe
 does not need to submit the derived
 numeric criteria to EPA for approval.
 Instead, the State would use the derived
 numeric Tier I criteria in developing
 Total Maximum Daily Loads (TMDLs)
 and water quality-based effluent limits.
 In the context of EPA's review and
 approval of the'resulting TMDLs under
 40 CFR part 130, and review of the
 water quality-based effluent limits in
 NPDES permits submitted under part
 123, EPA will review the State and
 Tribal interpretations  of narrative'water
 quality criteria,
  EPA invites comments on this
 approach for the use of Tier I
 methodologies required under'§ 132.4(c)
 and any alternative approaches.

. 3. Application of Tier  II Methodologies
  It is preferable, in all cases, to have
 Tier I criteria available to compute
 water quality-based effluent limits.
 However, the development of Tier I
 criteria is often costly  and time
 consuming. In the absence of a Tier I
 criterion, the permitting authorities
 must have some mechanism with which
 to interpret  and ensure that the narrative
 prohibition  against the discharge of
 toxic substances in toxic amounts is
 reflected in  water quality-based effluent
 limitations.  Options that EPA and the
 Initiative Committees  considered
 include: a "no data-no discharge"
 requirement, unless and until Tier I

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                                                                     £0837
 criteria are established; aft ad hoc
 •interpretation of narrative criteria on a
 case-by-case basis; of a systeiriatic   .
 methodology for deriving numbers in
 the.absence of a full database. The ,
 Initiative Committees have proposed the
 latter option—to" propose, the use of a
 Tier H methodology to derive values in  ,
 the absence of data sufficient to develop
.Tier I. criteria. EPA invites comment on
 this approach, and on the other three
 options described in this paragraph.
   The Tier n approach sometimes
; requires additional conservatisms,.e.g.,
 in the derivation of aquatic life criteria,
 when the minimum data requirements :
 for Tier I are not met. The approach may
 therefore result in permit limits which
 may later be found to be nonresistant
 than those derived from new toxicity
 data. In these cases, the cost of
 cohiplying with the more stringent •
 permit limits may be high because of the
 additional conservatisms, while the
 benefits may be low. Of course, one  .
 advantage of the Tier ri approach is that.
 it ensures that even discharges of'.. ,
 pollutants with insufficient data to
 derive Tier I criteria pose low risks to
 the  environment. EPA solicits
 comments on identification of any less
 costly approaches to regulate .pollutants
 for which inadequate data exist to
 derive Tier I criteria that would fully
 protect human health, wildlife, and
 aquatic life in the Great Lakes System.
   If a  State  of Tribe has not adopted a
 numeric water quality criterion for a
 pollutant and insufficient data exist to ••' .
 meet Tier I  minimum data requirements,
 proposed § 132.4(c) requires application
 of Tier II methodologies  to develop Tier
 n values to  implement the narrative .'•
 criteria. Additionally, if sufficient data
 to calculate a Tier H value for a
.pollutant on Table 6 of part 132 does
 not  exist, procedure 5 of the
 Implementation Procedures (appendix F
 to part 132) requires the permitting
 authority under specified circumstances
 to generate  or require the permittee to
 generate the data necessary to derive
 Tier n values. The requirements in
 procedure 5 are discussed further in
 section VIII.E of this preamble.    :
   As described aboyej the Tier n   >..-.'•:
 methodologies generally yield more
 conservative numbers than Tier I, to
 reflect the greater uncertainty related to
 the absence of c.omplete data sets. This
 creates an incentive on the part of
 dischargers to generate additional
 toxicological data. The proposed
 Guidance recognizes this possibility,
 and allows dischargers to provide such  >
 data. As described in section VOT-Ipf
 this preamble, the proposed Guidance   '
 provides a reasonable period of time up
 to two years to provide additional
 studies necessary to develop a tier I
 criterion or to modify :a Tier n value.
 Permittee data jnustmeet the minimum:
 data requirements in the proposed _"
 Guidance; including quality assurance
 requirements. Furthermore, the data are
 subject to review by the permitting
 agency.    :   |-
  EPA invites comment on all aspects of.
 this provision;including the two-tiered
 approach for criteria derivation and the
 use of the specified Tier II  ,
 methodologies,          '     ~      .
  In its December 16,1992, report,
 "Evaluation of the. Guidance for .the
 Great Lakes Water Quality Initiative,"
 EPA*s Science Advisory Board (SAB)
 expressed concern that anti-backsliding
 provisions of the Glean Water Act may
 prevent adjustments in Tier n numbers
 when more data become available. EPA
 belieyes that in most cases the anti-
 backsliding provisions of the Glean
 Water Act will not prevent adjustments
 to either Tier Devalues or Tier I criteria.
  First, under the proposed Guidance  :
 anti-backslidinp requirements do not
 apply to changes made in an effluent
 h'mitation prior to its compliance date.
 (See proposed procedure 9, Compliance
 Schedules, in appendix F to part 132.)  '
  Second, everi if anti-backslidiiig
 requirements do apply, they may not bar
 such adjustments. Under section 402(o) .
 of the CWA, relaxation of water quality-
 based limits is, permissible if either the,
 requirements of section 402(6)(2) or
 section 303(d)(4) are met. These two
 provisions .are independent exceptions
 to the prohibition against relaxation of
 permit limits. The exceptions, under
 section 3Q3(d)(4) will, in most cases,
 provide the 'flexibility needed for
 permitting authorities to issue permits
 reflecting adjustments in Tier I or n
 numbers. Section 303(d)(4)(A) allows
 establishment of less stringent water .
 quality-based effluent limits in a permit
 for discharge into a non-attained water
 if the existing permit limit was based on
 a total maximum daily load or other
 wasteload allocation established under
 section 303, and attainment of water
 quality standards is  assured. Section
 303(d)(4)(B) allows establishment of less
 stringent water quality-based" effluent
 limits in a pernjit for discharge .into an
 attained water so long as the revised
 permit limit is consistent with' a State's
 antidegradation'policy, and continues to
assure compliance with applicable
water quality standards. EPA believes  ;
that in most cases where Tier I criteria
 or Tier II values change as a result of
additional data becoming available,
discharges will be able to meet the
conditions of section, 303(d)(4) and
therefore not be subject to the
 prohibition contained in the Clean     :
 WaterAct.      :          ;
   EPA invites comment on all aspects of
 the above concerns about the two-tiered
 approach being proposed, including
 whether anti-backsliding,
 antidegradation, or any other provisions
. or practices may be a significant
 impediment to adjusting water quality
 criteria arid values when additional data
 become available, and what alternatives
 may be available to address the      ,
 concerns.-

 E. Applicability of the Water Quality
 Guidance,  .   •     ••
 '.  This section of the preamble discusses
 in more detail the applicability of the
 three major portions, of the proposed-
 Guidance.          ,           •

 1. .Criteria and Values   •'-';•
  a. Background. Section 30,3(c) of the
 Clean Water Act and implementing
regulations at 40 CFR part 131  specify
the manner in which EPA and  the States
or Tribes must review; revise, and adopt
waiter quality standards. Water quality
standards include a designated use or
uses for the waters of the United States
and water quality criteria for such
waters based upon the designated uses.
In designating uses for a water  body, '•'. '
States or Tribes must take into
consideration the use and value of water
for public/water supplies, protection
and propagation of fish, shellfish and
wildlife, recreation in and on the water,
agricultural, industrial, and other
purposes including navigatipn. Section
303(c)(2)(A) of the Clean Water Act; 40
GFR 131.10(a). States or Tribes may
designate uses not identified in section
303(c)(2)(A) of the Clean Water Act and
40 CFR 131.10(a) or specify
subcategories of uses for particular
water bodies, with the exception that no
State may designate waste  transport or
waste assimilation as a use. 40  CFR
131.10(c). Finally, pursuant to section
510 of the Clean Water Act, States or
Tribes may designate-uses  for particular,
water bodies which require application
of more stringent water quality criteria
than may be required under the Clean.
Water Act. In designating uses and
establishing appropriate criteria to
protect those uses, the States, or Tribes
must ensure the attainment and
maintenance of all downstream water
quality standards.
  EPA's existing regulations at 40 CFR
131.10(g) authorize States or Tribes to
remove certain designated uses of a
water body (arid establish  ;
correspondingly less stringent water
quality criteria) upon a demonstration
through a use attainability  analysis as
described m 40 CFR 131.3(g)i that

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Federal Register / Vol. 58, No. 72 / Friday,  April 16, 1993 / Proposed Rules
attaining the designated use is not
foasiblebecause:
  (1) Naturally occurring pollutant
concentrations prevent the attainment of the
use;
  (2) Natural, ephemeral. Intermittent or low
flow conditions oc water levels prevent the
attainment of tha uso, unless these conditions
may be compensated for by the discharge of
sufficient volume of effluent discharges
without violating State water conservation
requirements to enable uses to be met;
  (3) Human caused conditions or sources of
pollution prevent the attainment of the use
and cannot be remedied or would cause more
environmental damage to correct than to
leave in place;
  (4) Dams, diversions oc other types of
hydrologic modifications preclude the
attainment of the use, and it is not feasible
to restore the water body to its original
condition or to operate such modification in
• way that would result in the attainment of
tha us®;
  (5) Physical conditions related to the
natural features of ths water body, such as
the lack of a proper substrate, cover, flow,
depth, pools, riffles, and the like, unrelated
to water quality, preclude attainment of
aquatic lift protection uses; oc
  (6) Controls more stringent than those
required by sections 301(b) and 306 of the
Clean Water Act would result hi substantial
and widespread economic impact
Under 40 CFR 131.10(h), however.
States or Tribes may not remove
designated uses if:
  (!) They are existing uses, as defined in
§ 131.3, unless a use requiring more stringent
criteria is added; or
  (2) Such uses will be attained by
Implementing effluent limits required under
sections 301(b) and 306 of the Clean Water
Act and by implementing cost-effective and
reasonable best management practices for
nonpoint source control.
  In addition to modifying designated
usos for a particular water body, States
or Tribes may currently grant temporary
variances from water quality standards
to point sources based upon any of the
six grounds for removing a designated
usa set forth at 40 CFR 131.aO(g). EPA's
National policy on variances and the
proposed variance procedure for the
Great Lakes System are discussed in
section Vm.B, below.
  b. Applicability of the Proposed
Guidance, Section 132.4(d) of the
proposed Guidance generally requires
Great Lakes States or Tribes to apply
criteria and values derived from the Tier
I and Tier II methodologies for human
health, wildlife, and acute and chronic
aquatic life to protect all waters of the
Great Lakes System. The proposed
Guidance does not affect the Great Lakes
States' or tribes' authority under 40
CFR 131.10 to retain, designate or
remove uses  for portions of the Great
Lakes System entirely within their
                      jurisdiction. However, the proposed  ,
                      Guidance differs from current National
                      requirements by generally requiring
                      State and Tribal application of the
                      criteria, values and methodologies in
                      titie proposed Guidance to all waters of
                      the Great Lakes System regardless of
                      existing State or Tribal use designations.
                        There are four exceptions to this
                      general requirement. First, pursuant to
                      section 510 of the Clean Water Act,
                      Great Lakes States or Tribes may apply
                      more stringent numeric criteria or
                      values to any waters of the Great Lakes
                      System within their borders. Second,
                      Great Lakes States or Tribes may
                      develop less stringent site-specific
                      modifications to the criteria and values
                      for aquatic life for specific waters of the
                      Great Lakes System in certain limited
                      circumstances. However, any such site-
                      specific modifications must still be
                      protective of aquatic life. This provision
                      is discussed in section VTTI.A, below.
                        Third, with regard to human health,
                      the methodology in appendix C
                      produces criteria and values under two
                      sets of exposure assumptions. The  .
                      methodologies for deriving
                      "Nondrinking" criteria and values
                      assume that humans are exposed to
                      pollutants in the Great Lakes System via
                      two routes: incidental consumption of .
                      water as a result of recreational
                      activities in the Great Lakes System; and
                      consumption of fish that have
                      accumulated pollutants in their tissue.
                      The methodologies for deriving
                      "Drinking'' criteria and values assume
                      that, in addition to these two exposure
                      routes, humans are also exposed to
                      pollutants from the Great Lakes System
                      as a result of direct use of the waters
                      without treatment for drinking water
                      purposes. The "Drinking" criteria and
                      values are generally more stringent than
                      the "Nondrinking" criteria and values,
                      because of the additional route of
                      exposure. Section 132.4(d)(3) of the
                      proposed Guidance specifically
                      provides that the criteria and values
                      derived using the "Drinking"
                      assumptions shall apply to the open
                      waters of the Great Lakes, all connecting
                      channels of the Great Lakes, and all
                      other waters of the Great Lakes System
                      that have been designated for use as
                      public water supplies by any Great
                      Lakes State or Tribe in accordance with
                      40 GFR 131.10(a).  Criteria and values
                      derived using the "Nondrinking"
                      assumptions are proposed to apply to all
                      other waters of the Great Lakes System.
                        Fourth, § l"32.4(g) provides that Great
                      Lakes States and Tribes are not required
                      to use the proposed criteria
                      development methodologies or
                      implementation procedures for
                      pollutants listed in Table 5 of the
proposed Guidance, or upon
demonstration that application of one or
more methodologies or procedures to
the pollutant is not scientifically
defensible. The rationale for these
exclusions is discussed in section II.F of
this preamble.     .  •    '    "
  Finally, upon incorporation into
enforceable State; Tribal, or Federal  ,
laws, the criteria and values or:
appropriate site-specific modifications
developed under the proposed
Guidance will apply to a wide range of
regulatory decisions, including
decisions under statutes other than the
Clean Water Act. Examples of such
application include:
  i. Issuance of NPDES permits
pursuant to section 402 of the Clean
Water Act or consistent provisions of
State law;                    ,
 , ii. Issuance of permits authorizing the
discharge of dredged and fill material
pursuant to section 404 of the Clean
Water Act or consistent provisions of
State law;
  iii. Development of Lakewide
Management Plans and Remedial Action
Plans pursuant to section 118(c)(4) of
the Clean Water Act, as amended by the
Great Lakes Critical Programs Act of
1990;
  iv. Promulgation of emission
standards and control measures
necessary to prevent widespread
environmental or serious adverse public
health effects from atmospheric
deposition of air pollutants to the Great
Lakes pursuant to section 112(m) of the ,
Clean Air Act, as amended by the Clean
Air Act Amendments of 1990;
  v.  Determination of applicable or
relevant and appropriate requirements
(ARARs) under section 121 of the
Comprehensive Environmental
Response, Compensation" and Liability
Act of 1980; and
  vi. Determination of corrective action
requirements under sections 3004(u),
3008(h), or 7003 of the Solid Waste
Disposal Act or consistent provisions.of
State law.
  c.  Justification for the Proposed
Approach. The requirement set forth in
the proposed Guidance that the criteria
and  values generally apply throughout
the Great Lakes System regardless of use
designations is more restrictive than
current National policy. EPA believes
that this more restrictive approach is
necessary for the Great Lakes System for
several reasons.
  First, as explained in section I above,
EPA believes that the Great Lakes are an
integrated ecosystem requiring a
consistent approach to pollution control
across the entire basin. Allowing Great
Lakes, States and Tribes to retain the
broad discretion that they possess under

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                 Federal  Register /  Vol. 58, No. 72  I Friday, April 16, 1993 /:Proposed Rules
                                                                    20839
 the current National program would
 seriously hinder—-and perhaps    .
 prevent—the attainment of the gqaJs of
 the Great Lakes Critical Programs Act
 amendments to section 118 of the Clean
 Water Act.                   ; •
 , • One of the most important goals of
 this legislation was the establishment of
 more uniform control of pollution
 throughout the Great Lakes System. This
 theme appears in hoth the House "and
 Senate Committee reports-. See H.R.  -
 .101-704,101st Cong., 2d Sess. at 8
 (Sept. 14,1990); S. 101-339,101st Cong.
 2d Sess. at 12,18 (June 27,1990). It is
 also a common thread in the floor •    ;
 statements of nearly all of the individual
 members of Congress that addressed the
. House and Senate bills. See, e.g., 136
 Cong. Rec. H 7918 (Sept. 24,1990}
 (remarks of Rep. Roth); 136 Cong. Rec.
 H12325 (Oct. 27,1990) (remarks of Rep.
 Stangeland); 135 Cong. Rec. S 1153
 (Sept. 20,1989) (remarks of Sen. Levin);
 136 Cong. Rec. S 15620,15623 (Oct. 17,
 1990) (remarks of Sen. Levin and Sen.
 Kohl). The proposed Guidance, by
 generally requiring application of the
 criteria and values derived from the Tier
 I and Tier II methodologies for human
 health, wildlife, and acute and chronic
 aquatic life to all waters of the Great
 Lakes System (unless a State or Tribe
 successfully shows the need for a site-
 specific modification to the aquatic life
 criteria and values) will promote this
 goal.
   Further, the legislative history shows
 that Congress was aware of the Great  '
 Lakes States' Water Quality Initiative
 and viewed this effort with approval.
 See S. Rep. 101-339,101st Cong., 2d
 Sess. at 18 (June 27,1990); 136 Cong.
 Rec. S 15620 (Oct. 17,1990} (remarks of
 Sen. Levin). Because the achievement of
 consistent water quality was the key •
 goal of the Initiative, it is reasonable to i
 assume that Congress endorsed the same
 goal.
   •Third, a primary impetus behind the
 initial creation of the Great Lakes Water.
 Quality Initiative was the 1986 Great
 Lakes Toxic Substances Control
 Agreement ("Governors' Agreement").
 In that Agreement, the Governors of the
 eight Great Lakes States "commit[ted] to
 managing the Great Lakes as an
 integrated ecosystem, recognizing that
 the water resources of the Basin
 transcend political boundaries." The
 Governors' Agreement explained that
 such an ecosystem-based approach is
 necessary because:
   [t]he relatively closed nature of the system
 makes the Great Lakes especially vulnerable
 to pollution. Consequently, the actions of one
t jurisdiction or user in the system may have
' an impact on others. Because of this .
 interdependence and the resource's   :
 economic and social value to the region, it is
 crucial that the lakes be managed as an
 integrated system. •   •  ,      •
 The Governors'Agreement also
 recognized that uniform water quality
 standards .should be. developed for
 pollutants of concern Jn the Great Lakes
 System to avoid "costly duplication of
 research and standardsetting." Finally, .';
 the Governors' Agreement recognized  -
 that "[maintaining and improving the  .
 quality of Great Lakes waters will
 sustain water supply systems and
 commercial, manufacturing and   ,
 recreation industries, while creating
 new economic development
 opportunities."  ;  .
   Section 13.2.4(d) of the proposed
 Guidance implements the principles of
 the Governors' Agreement and reflects
 the proposal of the Great Lakes Steering
 Committee to require the> Great Lakes
 States to generally apply numeric      :;
 criteria and values equal to or more
• stringent ihan the Tier I criteria and Tier
 II values throughout the Great Lakes
 System, with the limited site-specific
 exceptions discussed in section VULA,
 below. This requirement is intended  to
 result in the development of more
 uniform:water quality standards
 throughout the Great Lakes System and
 a reduction in costly duplication of  •
 research and standard-setting by the  .-••
 Great Lakes States and Tribes,      .
   Finally, the legislative history also
 shows strong Congressional intent to
 implement portions of the 1978 Great •
 Lakes Water Quality Agreement relating
 to water quality standards,
 antidegradation policies, and
 implementation procedures. See, e.g.,.
 H.R. Rep. 101-704,101st Cong., 2d Sess.
 at 2, 8 (Sept.14,1990); 136 Cong. Rec.'
 H 7916 (Sept. 24,1990) (remarks of Rep.
 Nowak); 136 Cong. Rec. S 15620,15623
 (Oct. 17,1990) (remarks of Sen. Levin
 and Sen. Kohl). Moreover, Congress    :
 interpreted the Agreement as requiring
 uniform water quality "throughout the
 GreatLakes." 136 Cong. Ree. S 15620
 (Oct. 17,1990) (remarks of Sen. Levin).
   The rationale for the human health'
 methodology deserves additional'
 discussion. The methodologies for
 deriving '"Nondrinking" criteria and
 values assume that humans are exposed
 to pollutants in the Great Lakes System
 via two routes: incidental consumption
 of water as a result of recreational.   »
 activities in the Great Lakes System;  and
 consumption of fish that have
 accumulated pollutants in their tissue. .
 The methodologies for deriving
 "Drinking" criteria and values assume
 thati in addition to these two exposure
 routes, humans are also exposed to
 pollutants from :the Great'Lakes System
 as a result of direct use of the waters   :
 without treatment for drinking water
 purposes. Because of this additional
. route of exposure, the "Drinking"
 criteria and values generally will be   ,
. more stringent than those for  ;  :      •
 "Nondrinking."
   Th"e requirement in §132.4(d)(3)(ii) of
 the proposed Guidance regarding the
 applicability of the "Nondrinking" ,
 criteria and values is based upon two
 conservative assumptions. First, EPA is"-'
 assuming that humans use all waters of
 the Great Lakes System for recreational
 purposes, regardless of any applicable
 use designations. Second, FJ?A is
 assuming that humans consume .aquatic
 life that swim through or live in (and
 therefore have accumulated pollutants
 from) all waters of the Great Lakes
 System. Consequently, EPA is assuming
 that humans may be .exposed to,    -":-
 pollutants from any water.of the Great •
 Lakes System via either of the first two
 routes of exposure described above. To
 the extent that these assumptions are
 inaccurate,: they err on the side of being
 overprotective of human health rather  ,
 than underprotective. Moreover, this
 approach will promote consistent
'• application of criteria and values ..-,--.
 throughout the Great Lakes System,
 thereby furthering one of the primary    .
 goals of the Great Lakes Critical  ..;
 Programs Act. Finally, this approach is
 consistent with the proposal of the.
 Steering Committee.:EPA requests
 public comment on these assumptions.
  , Sectionr132.4(d)(3)(i) of the proposed
 Guidance requires application of the
."Drinking" criteria and Values to open
 waters of the Great Lakes, the
 connecting channels, and all other •
 waters designated for use as public
 water supplies. During the Great Lakes
 Water Quality Initiative process, it was
 suggested that because it is unlikely that
 drinking water intakes will be located
 behind constructed breakwalls, there is
 no need to apply the "Drinking" criteria
 and values to. waters that are located
 behind constructed breakwalls. The
 proposed Guidance does not allow this
 exception for two reasons.
   First, 40 CFR 131.11(a) requires that
 "States must adopt those water quality
 criteria that protect the designated use."
 The "Drinking" criteria and values are
 designed to protect humans from
 suffering adverse health  effects from.
 drinking water; that is, they aje    ,
 designed to protect public water supply
 uses. All of the open waters of the Great
 Lakes have been designated for public
 water supply uses. The proposed
 exception for waters located behind
 constructed breakwalls, to the extent it
 would allow application of water
 quality 'criteria that are less stringent
 than the "Drinking" criteria and values

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20840
Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993 / Proposed Rules
in waters that have been designated for
use as public water supplies, is not
consistent with 40 CFR 131.11(a),
  Second, to the extent that States or
Tribes believe that certain waters of the
Great Lakes System have not and will
not be used for public drinking water
supplies, they may seek to change the
uso designation of such segments
consistent with EPA regulations in 40
CFR part 131.10. Notwithstanding any
such changes, of course, regulatory
authorities issuing NPDES permits must
insure that point source discharges will
not interfere with attainment of all
downstream water quality standards.
Consequently, when establishing
controls on discharges of pollutants into
waters of the Great Lakes System that
have not bean designated for use as
public \vator supplies, Great Lakes
States and Tribes must consider any
effects that such discharges will have on
waters of the Great Lakes System that
have been designated for use as public
water supplies.
  The approach taken in the proposed
Guidance regarding the applicability of
criteria and values for human health
ensures that water quality criteria shall
ba applied to protect human health
throughout the Great Lakes System. EPA
recognizes that this approach is more
restrictive than EPA's current National
policy. However, as explained above,
EPA believes that general application of
all criteria and values throughout the
entire Groat Lakes System is required to
promote consistent water quality
standards in the Great Lakes System.
  EPA requests  comment on the
proposed provision generally requiring
basin-wide application of the Tier I
criteria and Tier n values regardless of
existing usa designations. EPA believes
that the use designations for most
waters within the Great Lakes System
currently include protection of aquatic
life and recreational uses. EPA
recognizes, however, that there are a few
waters within the Great Lakes System
that are not currently designated to
protect these uses. EPA requests
comment on all aspects of this issue
including the proposed applicability
provisions, the exceptions discussed
above, and any suggested alternatives.
  d. Other Options Considered. The
Steering Committee believed that the
Great Lakes States and Tribes should be
allowed to apply criteria and values
other than the Tier I criteria and Tier n
values for chronic aquatic life when
Justified through a use attainability
analysis pursuant to 40 CFR part 131.
The Steering Committee also believed
that this exception should be limited to
application of criteria and values for
pollutants that are notbioaccumulative
                      chemicals of concern (BCCs). The
                      Steering Committee developed this
                      exception because the chronic aquatic
                      life methodologies are based on
                      exposures of 96 hours and there may be
                      sites within the Great Lakes System
                      where physical and hydrologic
                      conditions preclude aquatic life from
                      remaining in the particular site for that
                      time period. Therefore, some members
                      of the Steering Committee believed that
                      uniform application of the criteria and
                      values for chronic aquatic life health
                      would be more stringent than necessary
                      to protect aquatic life in those specific
                      sites.
                        EPA has decided to address this issue
                      in procedure 1 of appendix F of the
                      proposed Guidance  on site-specific
                      modifications, rather than in § 132.4 on
                      applicability. EPA's existing regulations
                      allow modification of designated uses ;
                      based on the factors specified in 40 CFR
                      131.10(g). Because the stringency of
                      water quality criteria that must be
                      applied to a water body under EPA's
                      current National regulations is
                      dependent upon the use that is
                      designated for the water body, a
                      modification of a use pursuant to 40
                      CFR 131.10(g) may allow for application
                      of less stringent criteria.
                        As explained above, however, the
                      proposed Guidance  differs from EPA's
                      current National regulations in that the
                      proposed Guidance generally requires
                      application of water quality criteria and
                      values throughout the Great Lakes
                      System that will be protective of human
                      health, wildlife and aquatic life,
                      regardless of State or Tribal use  '
                      designations. In light of this approach,
                      EPA believes that exceptions from the
                      requirement to apply the criteria and
                      values for aquatic life may be equally
                      but more appropriately addressed in
                      procedure 1 of appendix F on site-
                      specific modifications. Procedure 1 of
                      appendix F proposes a procedure by
                      which States or Tribes may develop site-
                      specific modifications to the criteria and
                      values derived from the Great Lakes
                      methodologies for chronic aquatic life to
                      reflect local hydrologic and physical
                      conditions within the Great Lakes
                      System. However, EPA specifically
                      invites comment on the alternative
                      approach to address these site-specific
                      conditions through Use attainability
                      analyses and whether State or Tribal use
                      designations should play a more
                      prominent role in the Great Lakes
                      System than is envisioned by the
                      proposed Guidance.  •

                      2. Implementation Procedures
                        a. Applicability of the Proposed
                      Guidance. Section 132.4(e) of the
                      proposed Guidance requires States to
 apply the implementation procedures
 set forth in appendix F "in establishing
 controls on the discharge of any
 pollutant to the Great Lakes System by
 any point source," with two exceptions.
 First, under § 132.4(e)(l), Great Lakes
 States and Tribes are not required to
 apply any of the proposed
 Implementation Procedures to wet-
 weather discharges. Second, under
 § 132.4(e)(2), Great Lakes States and
 Tribes have discretion to decide
 whether to apply procedures 1,2, 3,4,
 5, 7, 8 and 9 to establish controls on the
 discharge of any pollutant set forth in
 Table  5. However, regulatory authorities
 must apply the whole effluent toxicity
 (WET) requirements set forth in
 procedure 6 in establishing controls on
 the discharge of all effluents to the Great
 Lakes  System. Section 132.4(e)(2)
 provides that any implementation
 procedures adopted by a Great Lakes
 State or Tribe shall conform with all
 applicable Federal, State, and Tribal
 requirements.
  b. Justification for the Proposed'
 Approach. The proposed Guidance
 generally requires application of the
 Implementation Procedures set forth in
 appendix F throughout the Great Lakes
 System. As discussed in sections I and
 n.E.l of this preamble, this condition is
 necessary to implement the primary
 goal of the CPA—to establish a more
 uniform level of water quality control
 throughout the Great Lakes System.
  The proposed Guidance provides
"exceptions in two situations: In
 establishing controls on the discharge of
 pollutants by wet-weather point
 sources; and in establishing controls on
 the discharge of any  pollutant identified
 in Table 5, or any other pollutant for
 which the Great Lakes State or Tribe
 demonstrates that one or more
 metho'dologies or procedures are not
 scientifically defensible. The
 justification for each exception is
 discussed below.
  i.  Wet-weather Point Source
 Discharges. Section 132.4(e)(l) of the
 proposed Guidance provides that the
 Great Lakes States an A Tribes are not
 required to apply the proposed
 Implementation Procedures in
 establishing water-quality-based
 controls on wet-weather point source
 discharges to the Great Lakes System. A
 wet-weather point source is defined in
 § 132.2 of the proposed Guidance as
 a point source which is either an outfall from
 a municipal separate storm sewer as defined
 at 40 CFR 122.26(b)(8),  a storm water
 discharge associated with industrial activity
 as defined at 40 CFR 122.26(b)(14), or a
 combined sewer overflow. A combined sewer
 overflow is a flow from a combined sewer in
 excess of the interceptor or regulator capacity

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                 FederaT Register;/ Vol. 58, No. 72  /  Friday, April 16, 1993 / Proposed Rules
                                                                     20841
 which is discharged into a receiving water
 body without going to a publicly owned
 treatment works; Combined sewer overflows
 occur prior to the headworks of a treatment
 facility. A storm water discharge associated
 with industrial activity which is mixed with
 process wastewater shall not be considered'a"
 wet-weather point source.     ,   , .
   'EPA believes that allowing the States
 and Tribes the discretion to apply the
 proposed procedures in wet-weather
 situations on a.site-specific basis where
 appropriate is riecessary due to the
 significant differences that exist    ••" ,
 between wet-weather point source
 discharges and dry-rweather point source.
 discharges. For example, in order to
, implement water quality standards for a
 particular pollutant in a particular
.receiving water, it is necessary to
 account-for a variety of conditions  ••
 including the rate, volume and duration
 of effluent flow into the receiving water;
 the nature arid volume of pollutants in
 the effluent; the flow rate and volume of
 the receiving water; and the background
 concentrations of pollutants hi'the •"•
 receiving water. Because these ,   '
 conditions remain fairly constant during
 dry-weather periods,  EPA has been able
 to develop general guidance on many
 implementation procedures that can be
 applied to most point source discharges.
 See, e.g., "Technical Support Document
 for Water Quality-based Toxics Control"
 (1991); "Technical Guidance of
 Supplemental Stream Design Conditions
 for Steady State Modeling" (1989);
 "Technical Guidance Manual for
 Performing Waste Load Allocations,
 Book n Streams and Rivers, Chapter 3
 Toxic Substances" (1984); "Water,
 Quality Standards Handbook" (1983).
   The conditions associated with wet-
 weather point source discharges, in
 '.contrast, are intermittent and occur
 during and immediately following wet-
 weather events. Consequently, the rate ,
 and volume of flow in the receiving .
 water may rapidly fluctuate during such
 discharges. Furthermore, the degree'of
 •fluctuation of pollutants within the
 receiving water also may vary
 depending on a wide range of factors
 including the magnitude and duration
 of arid time period between rainfall
 events; the amount and flow of storm
 water being discharged as compared to
 the amount and flow of the receiving
 water; the soil conditions and Land use
 activities near the receiving water; and
 the degree to which land near the
: receiving water is impervious to
 precipitation. See 55  FR 47990, 48038
 (Npv. 16,1990); 53 FR 49416,4944.4
 (Dec. 7,1988).
 • A second cause of the variability
 associated with wet-weather is that
 much of the effluent discharged during
wet-weather consists of storm water
run-off containing pollutants whose
source, nature, and extent varies
'according to local land.use activities as
well as the other factors described above
that cause variability in receiving
waters. See 55 FR 48038r 49443 (Nov.
16,1990). Discharges from combined
sewer overflows, for example, include
pollutants from'domestic waste such as
bacteria, nutrients, BOD, solids and
floatables which, due to the intermittent
nature of storm events, are
intermittently discharged in combined
sewer overflows and in storm water and
can vary considerably.     -
v Due to the high degree of variability
associated with wet-weather conditions,
EPA has not developed a general set of
implementation procedures for uniform
application to all wet-weather point
source discharges. Instead, EPA's
National policy has been to allow
permitting authorities familiar with'
local wet-weather conditions to   .-,
establish site-specific controls on wet-
weather point source discharges to
implement technology-based
requirements based on the permitting
authorities' best professional judgment
and to meet water quality standards. See
National Combined Sewer Overflow ,
Strategy, 54 FR 37370 (September 8,
1989). However, permittees with
combined sewer overflows generally are
expected to implement the nine    .
minimum' controls listed in EPA's .draft
Combined Sewer Overflow Control
Poh'cy (see 58 FR 4994  (January 19,
1993)), and to achieve volume or mass
reductions, overflow restrictions or
other limits as necessary to achieve   '
water quality standards. EPA believes .
.that the variability associated with wet-
weather point source discharges on a
National level is also present with
regard to wet-weather point source
discharges into the Great Lakes System.
Consequently, consistent with EPA's
National policy, the proposed Guidance
does not require but allows the Great
Lakes State or Tribe discretion  to apply
any of the proposed procedures in
establishing controls on wet-weather
point source'discharges on a site-
specific baisis.             .-.'.'..
  Although EPA is not proposing to
require the .Great Lakes States or Tribes
to apply any of the proposed
Implementation Procedures to wet-
weather point source ^discharges, EPA
believes that some of these procedures
could technically be applied to establish
controls on wet-weather point source
discharges. For example, the proposed
procedures for variances Could be
applied to both dry-weather and wet- -
weather point source discharges. In    :
contrast, the proposed procedure for
 determining reasonable potential to
 .exceed water quality-based effluent
 limitations may not be fully applicable
 to wet-weather discharges. This is
 because the statistical methods set forth
 in the procedure are based on the
 assumption that the effluent         "
 concentration and receiving water flow
 behave independently; that is, for dry-
 weather discharges, there is an equal
 likelihood that a high or low effluent
 concentration could occur at any
 receiving water flow. However, in the
 case of wet-weather, both the effluent
 concentration and receiving water flow  ,
 are influenced by rainfall and therefore
 do not always behave independently.
 EPA requests comment on all aspects of
 this proposed exclusion  for wet-weather
 discharges including: the
 appropriateness'of-the. proposed
 exclusion for wet weather discharges;
 the definition of wet-weather point
 sources; which implementation
 procedures could appropriately be
 applied in establishing regulatory
 controls on wet-weather point source
 discharges; and whether the final rule
.should require permitting authorities to
 apply any particular1 procedures in
 establishing controls on wet-weather
 discharges in the Great Lakes System.
   Section 132.4(e)(l) of the proposed
 Guidance requires that "any procedures
 applied in lieu of these implementation
 procedures shall be consistent with all
 applicable Federal, State, and Tribal
 requirements." Accordingly, even .
 though permitting authorities are not-
 required to apply the Great Lakes
 Implementation Procedures in
 establishing controls on wet-weather
 point source discharges^all permits
 must still contain any limitations and •
 conditions necessary to ensure
 compliance with the  Clean Water Act
 arid implementing Federal and State
 regulations. Furthermore, under
 §§132,3 and 132.4(c) of the proposed
 Guidance, all criteria arid values and
 site-specific modifications thereof apply
 for all purposes specified in the Clean
 Water Act for'Criteria developed under
 section 304(a), including .decision-
 making regarding wet-weather point - ,
 source discharge's.
 ,  As part of EPA's National activities
 regarding combined sewer discharges,
 EPA is evaluating whether the present
 assumptions used in the water quality
 criteria, water quality standards, total
 maximum daily load/waste load
 .allocation, and permitting processes are
 appropriate for wet-weather discharges.
 Upon completion of this evaluation,
 EPA intends to issue guidance either  .
 affirming the scientific validity of those
 present assumptions that it determines
 are appropriate for wet-weather

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 20842         Federal Register / Vol.  58, No. 72  /Friday, April 16, 1993 /Proposed -Rules
 discharges or, where present
 assumptions are not appropriate,
 modifying the assumptions as necessary
 to account for wet-weather situations.
 Additionally, as discussed in section
 I.G, of this preamble, EPA has convened
 a separate multimedia work group (the
 Great Lakes Toxics Reduction Initiative)
 to determine whether additional
 guidance for the Great Lakes System
 should ba developed in several areas,
 including specific implementation
 guidance for wet-weather point and
 nonpolnt source discharges. In the event
 that uniform National procedures or ,
 guidance to implement water quality
 standards in permits are developed
 specifically for wet-weather point
 source discharges, EPA will evaluate the
 appropriateness of application of such
 procedures to the Great Lakes System.
   IL Excluded Pollutants. Section
 132,4(g) provides that States and Tribes
 are not required to use the proposed
 Implementation Procedures to develop
 water quality-based effluent limits for a
 pollutant if it is listed in Table 5 of the
 proposed Guidance, or if the State or
 Tribe demonstrates that applying one or
 moro methodologies or procedures to
 the pollutant is not scientifically
 defensible. EPA recognizes that some of
 Iho Groat Lakes Implementation
 Procedures in appendix F could
 technically be applied in establishing
 controls on the discharge of some or all
 of the pollutants listed in Table 5. For
 example, procedure 2 (Variances from
 Water Quality Standards) could be
 applied in determining whether to, grant
 a variance from water quality standards
 to a point source discharger of any
 pollutant.
  Nevertheless, §132.4(e)(2) of the
 proposed Guidance provides that, with
 the exception of procedure 6 (Whole
 Effluent Toxlcity Requirements for Point
 Sources), the Great Lakes States and
 Tribes may, but are not required to,
 apply the proposed Implementation
 Procedures in establishing controls on
 the discharge of any pollutant set forth
 In Table 5 of the proposed Guidance.
 The rationalo for requiring whole
 effluent toxidty testing for all
 discharges, including those containing
 Table 5 pollutants, is discussed in
 section VHLF, below. Table 5 contains
 sixteen pollutants: Alkalinity, ammonia,
 bacteria, biochemical oxygen demand,
 chlorine, color, dissolved oxygen,
 dissolved solids, hydrogen sulfide, pH,
phosphorus, salinity, sulfide,
temperature, total and suspended solids,
and turbidity. The basis for the general
exception for Table 5 pollutants,
including the rationale for selection of
the pollutants, is discussed in section
II.F of this preamble. The exclusion of
 additional pollutants on the basis of
 scientific defensibility is also discussed
 in section H.F.
   EPA specifically requests comment
 on: Today's proposed approach to allow
 States and Tribes the flexibility to select
 implementation procedures for Table 5
 pollutants as long as they are consistent
 with Federal, State, and Tribal
 requirements; which of the Great Lakes
 Implementation Procedures could be
 applied in establishing regulatory
 controls on the discharge of any or all
 of the pollutants listed in Table 5; and
 whether regulatory authorities should
 be required to apply any or all of the
 Great Lakes implementation procedures
 in establishing controls on the discharge
 of any or all of the pollutants listed in
 Table 5. EPA also invites comment on
 the 132.4(g) exclusion for scientific
 defensibiiity as applied to the
 Implementation Procedures in appendix
 F, discussed further in section H.F,
 below.

 3. Antidegradation Policies
   The proposed Guidance requires
 Great Lakes States and Tribes to apply •
 the antidegradation policy adopted
 pursuant to § 132.4(a)(6) for all
 applicable purposes under the Clean
 Water Act, including 40 CFR 131.12, for
 all pollutants. Unlike other parts of the
 proposed Guidance, which focus on
 regulatorily determined desirable levels
 of water quality, the antidegradation
 policy focuses on actual water quality.
 Traditionally, antidegradation policies
 have operated independently of, or as a
 backstop to, individual water quality
 criteria adopted to protect particular
 uses. Hence, the reasons for
 distinguishing between particular
 pollutants for purposes of prescribing
 methodologies for criteria development
 do not appear particularly relevant to
 the question of the applicability of the
 antidegradation policy. EPA requests
 comments on the proposal to make
 appendix E applicable to all pollutants.
 F. Excluded Pollutants
  The proposed Guidance generally"
 requires application of the criteria
 development methodologies in
 appendixes A, B, C and D, and the
 Implementation Procedures in appendix
 F for all pollutants except for the 16
 pollutants listed in Table 5 and any
 pollutant other than those in Table 5 for
 which the Great Lakes State or Tribe
 demonstrates that application of one or
 more guidance procedures to the given
pollutant are not scientifically
 defensible. The pollutants listed in
Table 5 are: alkalinity,,ammonia,
bacteria, biochemical oxygen demand
 (BOD), chlorine, color, dissolved
 oxygen, dissolved solids, hydrogen
 sulfide, pH, phosphorus,.salinity,
 sulfide, temperature, total and
 suspended solids, and turbidity.
   With regard to the exclusion of
 pollutants in Table 5, the States and
 EPA have had many years of extensive
, experience in control of these
 pollutants. For example, regulatory and
 voluntary programs to control
 phosphorus began in the 1960s and
 continue to the present. Additionally,
 all of the Great Lakes States have
 adopted, and EPA has approved,
 numeric water quality criteria for these
 pollutants. Based on this extensive
 experience, the Steering Committee of
 the Great Lakes Water Quality Initiative
 believed that efforts should not be made
 to develop criteria, methodologies, and
 implementation procedures that could
 uniformly be applied to these pollutants
 given the limited time  and resources
 available to complete the work of the
 Initiative.
   Based on these considerations, the
 Initiative Committees believed that
 regulatory authorities should retain the
 flexibility in their existing water quality
 programs to address these pollutants on
 a site-specific basis. EPA believes that
 the existing EPA-approved  State water
 quality standards for these pollutants
 are adequate to protect aquatic life,
 human health, and wildlife in the Great
 Lakes System. Although variations do
 exist in the criteria and implementation
 procedures fpr these pollutants in the
 Great Lakes States, EPA also 'believes
 that the variability is not sufficient to
 adversely affect the protection of aquatic
 life, human health, or wildlife in the
 Great Lakes System because of the
 extensive experience of EPA and the
 States in the regulation of these,
 pollutants.
   Additionally, uniform application of
 the methodologies and implementation
 procedures is not appropriate for s'ome
 of the excluded pollutants in Table 5  ,
 because of technical reasons. F6r
 example, modifications to the proposed,
 criteria development methodologies
 would be:required to derive criteria or
 values for alkalinity and color. Given
 the limited time and resources available
 to derive these additional
 methodologies and the extensive
 regulatory experience in controlling
 these parameters, EPA believes that the
 existing State and Federal requirements
 should continue to be used  for these
 pollutants.           _,
  EPA may consider expanding the  •
 methodologies and procedures to
 specifically address these pollutants in
 the future, and invites comment on:
 Whether the final rules should require
 some or all of the proposed  Guidance or

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                 Federal Register  /  Vol.  58, No. 72 / Friday,; April16, 1993 /Proposed Rules
                                                                     20843
 alternative requirements to.be applied to
 any of the identified pollutants; and
 identification of any modifications that
 would be necessary to apply the
 proposed methodologies or procedures -
 to any of these pollutants.
  EPA recognizes that some of the
 excluded pollutants are identified in  .
 Annex 1 of the Great Lakes Water
 Quality Agreement (GLWQA). As
 discussed in sections I and in.B.l.b,
 EPA has indicated its intention to seek
 modifications to the GLWQA, where
 necessary, to specify- criteria and
 procedures for these pollutants that are
 scientifically based and protective of
 aquatic life, human health and wildlife:
 in the Great Lakes System.
   Section 132.4(g) also provides that the
 Great Lakes States and Tribes may. but
 are not required to, apply the proposed
 criteria methodologies and
 implementation procedures to tiny
 pollutant for which the regulatory
 authority demonstrates that one or more
 procedures in the Guidance are not     '.
 scientifically defensible. The reason for
 this exclusion is that there may be^    ,
 pollutants identified in the futureTfor
 which some of the methodologies or
 procedures being proposed today may
 not be technically appropriate; Under
 these circumstances, EPA wishes to
 provide sufficient flexibility for
 permitting authorities to address these
 pollutants on a case-by-case basis.
   The exclusion related to. scientific
 defensibility may be used by a Great
 Lakes State or Tribe either when
 developing numeric water quality
 criteria, interpreting narrative criteria,
 or implementing narrative or numeric
 criteria in individual NPDES permits.
 For example, if a Great Lakes State or
 Tribe determines that a procedure for
 modifying a,water quality criterion is
 not scientifically defensible when
 applied to a specific pollutant, they
 would provide the demonstration
^described in §132.4(g) in their
 submission of the new or revised  ,
 criteria to EPA under section
 303(c)(2)(A) of the Clean Water Act. If
 the issue arises during development df _
 a TMDL based on interpretation of a
 narrative criterion, the Great Lakes State
 or Tribe could provide the
 demonstration at the time a TMDL
 developed pursuant to procedure 3 is
 submitted to EPA for review. Similarly,
 if the Great Lakes State or Tribe
 determines that an alternative
 implementation procedure is necessary
 to develop water quality-based effluent
 limits in an individual permit to
 implement narrative or numeric criteria
 for a particular pollutant based on this
 exclusion, they would submit the
 supporting demonstration for EPA
 review as part of the submitted TMDL
 or proposed NPDES permit. These
 demonstration.submissions should   -
 include: Identification of the provision
 of the proposed Guidance that the
 regulatory authority has not applied to
 a pollutant; demonstration that
 application of the provision to the
 pollutant is not scientifically defensible; •
 and a description of the scientifically
 defensible alternative method to be used
 in place of the provision in the
 proposed Guidance.
   EPA invites comment on all aspects of
 the exclusion in § 132.4(g), including
 whether the final Guidance should
 specify minimum requirements for use
 of this exclusion, demonstration
 elements, or procedures for EPA review
 of these submissions.
 G. Pollutants of Initial Focus for Criteria
 Development, and Bioaccumulative
 Chemicals of Concern
   The Guidance being proposed today,
 while generally applying to all
 pollutants (except for the pollutants in
 Table 5 for some provisions), was     ..
 structured to provide an initial focus on
 138 pollutants listed in Table 6. The
 pollutants listed in  Table 6 were
 identified by the Steering Committee to
 be those known or suspected of being of
 primary concern in the Great Lakes
 basin.Table 6 is composed of:    -
   1. The 126 pollutants that have been
 identified by EPA as priority toxic
 pollutants. The listing appears as
 appendix A of 40 CFR part 423, The
 .priority pollutant list identifies toxic
 pollutants of concern on a National
 basis. It has served  as a basis for
 numerous EPA actions, including: the
 selection of pollutants for development
 of water quality criteria under section
 304(a) of the Clean  Water Act; the
 development of technology-based
 effluent guidelines  under section 301 of
 the Clean Water Act; the listing of
 impaired waters under section 304(1) of
 the Clean Water Act; and as a basis for
 determining State compliance with
 section 303(c)(2)(B) of the CWA which'
 requires. States to adopt numeric criteria
 for toxic pollutants of concern in State
, waters.  .                 '
   2. Pollutants listed in the Great Lakes
 Water Quality Agreement of 1978 (as
 amended by the Protocol signed
 November 18,1987). The Agreement
 identifies pollutants of concern in the
 Great-Lakes System or parts thereof.
 Specifically, Table  6 of the proposed
 Guidance includes  most of the
 pollutants for which there are "Specific
 'Objectives" in Annex 1 of the      •
 Agreement; However, Table 6 excludes
 16 of the entries in Annex 1: eight are -.
 pollutants contained in Table 5 of the
proposed Guidance and were omitted
for the reasons discussed in section H.F
of this preamble. Examples in this group
include total dissolved solids, pH, and
temperature. The remaining eight     ;
entries in Annex 1 were omitted
because they did not list specific
pollutants by name, but rather identified
undifferentiated groupings of pollutants
that could not be used to establish a
meaningful focus for individual    ;-,
pollutants in the Great Lakes Water
Quality Initiative. Examples in this
group include "unspecified organic
compounds," "other pesticides," and
"unspecified non-persistent toxic
substances and complex effluents;"
  3. Pollutants categorized as IA or IB
in the Categorization of Toxics in Lake
Ontario (July 1988) under the Lake
Ontario Toxics Management Plan, or in  ,
the Categorization of Toxic Substances
in the Niagara River (June 1990) under
the Niagara River Toxics Management
Plan. The Lake Ontario and Niagara
River Toxics Management Plans identify
pollutants of concern in a specific Great
Lake or in a connecting channel plan,
that may also be of concern in upstream
lakes or connecting channels. Category
IA and IB pollutants are those pollutants
for which ambient data are available
and an enforceable (IA) or
unenforceable (IB) standard is exceeded.
  4. Pollutants included on a case-by- • '••.
case basis. Table 6 includes three
pollutants solely on this basis:
Malathion;2,4-D(2,4v
Dichlorophenoxyacetic Acid); and
Chlorpyrifos. EPA has developed     .
National water quality criteria guidance
documents for the protection of aquatic
life for these pollutants: ambient, water
quality criteria for Malathion and 2,4-D
were published in "Quality Criteria for
Water" ("Red Book"), U.S. EPA, 1976
(PB-263943). Ambient water quality
criteria for Chlorpyrifos were published
at 51FR 43666 (December 3,1986).  ,
These commonly used pesticides or
herbicides were included in Table 6
because of their known or suspected
presence or widespread use in the Great
Lakes  System.
   The primary purpose of the Initiative
Committees in specifying pollutants in
Table ,6 was to provide an initial focus
for criteria development and the
calculation of bioaccumulation factors
in the Great Lakes System. The
pollutants included in Table 6 were not
intended to be a comprehensive
inventory of all pollutants present, used
or manufactured in the Great Lakes
System. If the listing included as Table
6 was to become such an exhaustive
inventory, it would not be useful for
providing this initial focus.

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                 Federal Register / Vol. 58, Nov 72 /. Friday, April 16, 1993  / Proposed Rules
                             aesan
   Tho proposed Guidance provide
 initial focus on the Table 6 pollutants in
 the following three ways. First, the
 pollutants for which EPA and the States
 have applied the proposed criteria
 methodologies to derive numeric water
 quality criteria—that is, the pollutants
 In Tables 1, 2,3 and 4—were selected
 from the list of pollutants in Table 6.
 EPA and the Initiative Committees
 bolieve that the pollutants for which
 EPA establishes minimum water quality
 standards, as required by the Great
 Lakes Critical Programs Act of 1990,
 should, as a minimum, include those
 known or suspected of being of primary
 concern in the Great Lakes basin—that
 is, those in Table 6. In selecting from the
 Table 6 pollutants for which numeric
 water quality criteria would be
 calculated for inclusion in the proposed
 Guidance, EPA and the Initiative
 Committees considered a number of
 factors in addition to those  used to
 dsvelop Table 6. These other factors,
 described in sections Ht, V and VI of
 this preamble, include data availability, x
 chemical characteristics, and
 environmental effect on the Great Lakes
 System.
   Second, EPA and the Great Lakes
 States limited calculation of human
 health bioaccumulatipn factors fBAFs)
 for the proposed Guidance to Table 6
 pollutants, BAF calculation is necessary
 when developing water quality criteria
 to protect human health and wildlife.
Tho BAFs calculated for use in the
proposed Guidance will facilitate State
and Tribal development of such criteria,
In developing Table 6, EPA and
Initiative participants developed human
health BAFs for each of the 138
pollutants. These BAFs are described in
 tha technical support document,
 "Derivation of Proposed Human Health
and Wildlife Bioaocumulation Factors
for tha Great Lakes Initiative," available
in the administrative record for this
rulomaking.  Copies are also available as
described in section m of this preamble.
BAF calculation is also necessary to
determine bioaccumulative chemicals of
concern (BCCs), which are discussed
below.
  The third way that Table 6 affects the
initial focus of this Guidance is in
determining when States, Tribes, and/or
permitters must generate data necessary
to calculate Tier n values used in
developing water quality-based effluent
limits. Procedure 5.D ofthe proposed
Implementation Procedures in appendix
F requires that permitting authorities
generate, or have permitters generate,
the data necessary to calculate Tier H
values for pollutants in Table 6 for
which there is no Tier I criterion or Tier
II value if the permitting authority
 determines based on a specified
 screening approach that a discharge
 causes, has the reasonable potential to
 cause or contributes to an excursion
 above a State water quality standard.
   EPA invites comment on the listing of
 pollutants contained in Table 6 and on
 the basis for including pollutants in
 Table 6. EPA also invites comment on
 whether pollutants should be deleted
 from Table 6 or added to Table 6,
 including the pollutants listed in the
 Great Lakes Water Quality Agreement,
 Annex 10, Appendix 1 (Hazardous
 Polluting Substances) or Appendix 2 '
 (Potentially Hazardous Polluting - "
 Substances) or pollutants categorized as
 ID or IE in the Categorization of Toxics
 in Lake Ontario or in the Categorization
 of Toxic Substances in the Niagara
 River. Category ID pollutants are those
 pollutants for which ambient data are
 available but for which a complete
 categorization was not possible due to
 detection limits. Category IE pollutants
 are pollutants for which ambient data
 are available but no criterion is known
 to be available.        ......
   EPA also invites comment on whether
 the requirements in implementation ,
 procedure 5.D should be focused on a
 limited list of pollutants, such as the
 138 pollutants in Table 6 or whether
 Procedure 5.D should be extended to   .
 apply to any other pollutants for which
 water quality criteria or values are not
 available.
  As discussed in more detail in
 sections LA and I.D of this preamble,
 the Initiative Committees were
 particularly concerned about pollutants
 which exhibited system-wide, impacts,
 such as mercury and PCBs, dins to their
 propensity to bioaccumulate in* the food
 chain and/or persist throughout the
 Great Lakes System. The Steering
 Committee wanted to prevent additional
 chemicals with similar tendencies from
 reaching levels that would also impact
 the Great Lakes System. The Technical
 Work Group recommended utilizing a
bioaccumulation factor methodology
 which incorporates metabolism and
 other physicochemical properties as a
 mechanism by which to identify highly
bioaccumulative chemicals which could
 cause system-wide impairments of
beneficial uses. The Steering Committee
selected a bioaccumulation factor (BAF)
 of 1000 as an indicator of a pollutant's
ability to be highly bioaccumulative. A
pollutant with a BAF greater than 1000
was believed by the Steering  Committee
to have a high potential to be found in
aquatic organisms of the Great Lakes
System and therefore to have the
potential to cause a significant risk to
the health of the aquatic life _and
consumers of the'aquatic life such as •
                                                                             wildlife and humans inhabiting the
                                                                             Great Lakes basin. Those pollutants
                                                                             with a bioaccumulation factor greater
                                                                             than 1000, after considering metabolism
                                                                             and other properties, are called
                                                                             bioaccumulative chemicals of concern
                                                                             (BCCs) in the proposed Guidance. BCCs
                                                                             are subject to more stringent controls
                                                                             than other chemicals, as explained in
                                                                             section I.D of this preamble. The
                                                                             Guidance (in § 132.2) defines BCCs as
                                                                             follows:
                                                                             .  Bioaccumulative chemical of concern
                                                                             (BCC) is any chemical which, upon entering
                                                                             the surface waters, hy itself or as its toxic '
                                                                             transformation product, bipaccumulates in
                                                                             aquatic organisms by a human health
                                                                             bioaccumulation factor greater than 1000,
                                                                             after considering metabolism and other
                                                                             physicochemical properties that might
                                                                             enhance or inhibit bioaccumulation, in
                                                                             accordance with the methodology in
                                                                             appendix B to part 132. BCCs include, but are
                                                                             not limited to the pollutants identified as
                                                                             BCCs in Table 6.

                                                                               As described above, EPA and the
                                                                             Initiative Committees developed BAFs
                                                                             for each ofthe 138 pollutants in Table
                                                                             6. Thirty-eight (38) pollutants were
                                                                             found to have BAFs greater than 1000
                                                                             under the assumption of 5.0 percent
                                                                             lipid content that is used for human
                                                                             health criteria development. For ten of
                                                                             these 38 pollutants, however, EPA
                                                                             believes the BAF may need to be
                                                                             adjusted in accordance with section
                                                                             VI.D.5 of the Methodology for
                                                                             Development of Bioaccumulation
                                                                             Factors in appendix B, which states:
                                                                              5. Both human health and wildlife BAFs
                                                                             should be reviewed for consistency with all
                                                                             available data concerning the
                                                                             bioaccumulation of the chemical. In
                                                                             particular, information on metabolism,
                                                                             molecular size, or other physicochemical
                                                                             properties which might enhance or inhibit
                                                                             bioaccumulation should be considered. The
                                                                             BAFs may be modified if changes can be
                                                                             justified by the data.        .
                                                                              EPA identified the following concerns
                                                                             during'application of the proposed
                                                                             methodology for defining BAFs:
                                                                             —Six polynuclear aromatic
                                                                              hydrocarbons (3,'4-benzofluoranthene,
                                                                              11,12-benzofluoranthene,
                                                                              benzo[a]pyrene, 1,12-benzoperylene,
                                                                              l,2:5,6-dibenzanthracene,
                                                                              indeno[l,2,3-cd]pyrene) are 5-ring
                                                                              PAHs. Field-measured BAFs for two
                                                                              3-ring and two 4-ring PAHs ranged  '
                                                                              from 17 to 228, and it seems unlikely
                                                                              that the addition of another ring will
                                                                              increase the BAF to over 1000. The
                                                                              four measured BAFs that are available
                                                                              for PAHs are substantially lower than
                                                                              the BAFs that are predicted from Log
                                                                              P for those chemicals.
                                                                             —Metabolism is likely to reduce both
                                                                              the BAF and food chain multiplier  „

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                Federal Register / Vol. 58, No. 72 7 Friday, April 16, 1993  /Proposed Rules
                                                                   20845
  .enough to cause the BAF to be less
  than 1000 for two chemicals (4-
  chlorophenyl phenyl ether, dibutyl
  phthalate).     •='.'"_.
 —The BGF for one chemical (phenol)
  was measured using radiolabeled
  chemical. Even though the parent
  chemical was verified, the resulting
  predicted BAF is so much higher than
  the BAF predicted from.Log P that it
 • is doubtful that the BAF for this   ,
  chemical is above 1000.
 —The BCF for one chemical (toluene)
  :was measured using radiolabeled
  chemical. The parent chemical was
  not verified and the resulting
  predicted BAF is so much higher than
  the BAF predicted from Log P that it
  is doubtful that the BAF for this;     •
  chemical is above 1000.        ..-.'•
  For these reasons, EPA is proposing to
 list the above ten chemicals as potential
 BCCs rather than BCCs. These ten
 pollutants are listed in part B of Table
 6. The special regulatory provisions for
 BCCs in the proposed Guidance would
 not apply to these ten pollutants,
 although pursuant to section 510 of the
 ' Clean Water Act, .the Great Lakes States
 or Tribes may also apply these       ,
 provisions to any other pollutant,
 including the list of potential BCCs. The
 detailed derivation of the BAFs for all  ;
 pollutants.on Table 6 including the
 identified BCCs and potential BCCs is
 described in the technicaljsupport
 document, "Derivation of Proposed    :
 Human Health; and Wildlife
 Bioaccumulation Factors for the Great {
 Lakes foitiative," which is available in  :
 the administrative record..
   The 28 pollutants with BAFs greater
 than 1000 for which EPA does not have
 the above concerns are listed in part A
 of Table 6; The special regulatory
, provisions for BCCs in the proposed
 Guidance would apply to these 28
 BCCs, as well as to any other pollutant
 that the State or Tribe determines has a
 BAF greater than 1000, using .the    .
 . Methodology for Development of
 Bioaccumulation Factors in appendix B
 to part 132.
   EPA invites comment on the choice of
 a BAF of 1000 at 5.0 percent lipids as
 the level which defines a BCC. The
 .selection of a BAF of 1000 is a risk
 management decision that involves
 weighing information and policy
 considerations (rather than a risk
 assessment assumption that results from
;-a scientific analysis). The Steering •:.'••
 Committee made its recommendation on
 the basis of information available to
 them as managers of water quality
 programs. EPA is proposing this
 recommended cutoff of 1000 as an
 appropriate.numbef to use for    .
determining when there is a likelihood
of relatively high exposure to humans
and wildlife as a result of fish
consumption. EPA recognizes that other •"
numbers could be selected as a cutoff.
During the deliberations of the;Steering
Committee, for 'example, alternative
levels of 308 and 100.were suggested. A
BAF of 308 represents the approximate
value at which exposure from
consumption of fish exceeds exposure
from consumption of drinking water,
under a human health criteria exposure
assumptions of 6.5-gm/day of fish
consumption and 2 L per day of
drinking water consumption. Eight of
the pollutants in Table 6 have proposed
BAF values between 308 and 1000.
Sixteen of the pollutants on Table 6
.have proposed BAF values between 100
and 300. For reference purposes, a BAF
of 1000 represents the point at which
bioaccumulatiori due to dietary uptake
in fish begins to be significant. Below
this level, BAFs and BCFs are predicted1
to be nearly the same because virtually.
all bioaccumulation occurs as the result
of pollutants from the. water.
  EPA invites comment oh the proposed
BAF level of 1000 and any alternative
BAF levels for use in defending BCCs,
EPA also invites comments on the lists
of BCCs .and potential BGCs, the
methodology used to derive them, and .
all aspects of the issues related to BCCs.
In particular, EPA'invites comments on
whether any or all of the potential BCCs
should be listed as BCCs and any
additional data-relevant to these
determinations.:   '        .       ,
   The special regulatory provisions for .
BCCs in the proposed Guidance include
portions of the antidegradation policy in
appendixE, andprocedure 3 (Total
Maximum Daily Loads) and procedure 8
(WQBELs Below the Levels of
Detection) in appendix F, The specific, ,
reasons for applying these provisions to."
BCCs are provided in sections I.D., VII,
VHI.E, and VHI.H of this preamble. EPA
invites comment on the manner in
which these provision's are based, in
part, on the definition of BCCs.
H. Adoption Procedures      ;
   Section 118(c)(2)(C) of the Clean
Water Act requires the Great Lakes
 States to adopt water quality standards,
 antidegradation policies, and  • •   '. •
 implementation procedures.for waters
 within the Great Lakes System which
 are consistent with the final Guidance.
 If a Great Lakes State fails to adopt
 consistent provisions within two years
 of EPA's publication of the final ,
 Guidance, EPA is required to.    ,    .
 promulgate such provisions within the
 same, tworyear period. -
  Section 132.5 of the proposed
Guidance specifies the procedures for :  •
State and Tribal submissions, and for
EPA review and approval or disapproval.
of these submissions under part 132.
Where possible, EPA has patterned the  „
submission and approval process in
proposed § 132.5 after the processes
now in place for the water quality
standards and NPDES programs,
pursuant to sections 303 and 402 of the  .
Clean Water Act, and believes the
procedures in proposed § 132.5 satisfy
the minimum procedural requirements
of those programs. Therefore, EPA's
review and approval of these   ,  • "••:','•'
submissions will constitute approval  ,
under section 118 of the Clean Water
Act, approval of the submitted water
quality standards pursuant to section
303 of the Clean Water Act, and
approval of the submitted modifications
to the State's NPDES program pursuant  ,
to section 402^ the Clean Water Act as
provided in proposed §132.5(f). In this
way, one Submission and approval'
procedure will satisfy all relevant
statutory requirements and thereby
maximize efficient use of State, Tribal,
and EPA time and resources, and
•facilitate public participation.    / '
  Proposed § 132.5(a) requires the Great
Lakes States and Tribes to adopt and
submit for EPA review and approval the
criteria, methodologies, policies and
procedures developed pursuant to part
132 by a date nojater than 18 months
from the date of final publication, of the
part 132 requirements. Section KB.-. o£  ,
this preamble discusses the application
of the requirements of section ,118 to
Indian Tribes. If an Indian Tribe has not
received authorization to administer the
NPDES program, EPA,or a State    .-'.'.
authorized to do so will administer the ;
requirements of part 132 on Indian   .
lands and issue permits for discharges
to the Great Lakes System consistent
with this part. States, however,
generally lack authority to administer
NPDES programs on Indian  lands, and ,
no State within the Great Lakes basin is
ciirrently authorized to administer the
program on Indian lands. See 40.CFR
123.1(h). EPA is proppsing to establish
this 18-month deadline for State and  ,
Tribal submissions in order to allow the
full time available under the statute for
EPA review and approval of
submissions and for.States and Tribes to
correct any identified deficiencies, and
still .allow EPA to meet the section  --:-..
118(c)(2)(C) requirement for review,
approval or disapproval and .
promulgation by EPA, if necessary,.
within two years after the final
publication of the Guidance.
   Proposed § 132.5(b) identifies four
 eleihehts that must be included in the  ;

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 20846
Federal  Register  / Vol. 58, No. 72 / Friday, April 16, 1993 /Proposed Rules
 Stata and Tribal submissions: (1) The
 criteria, methodologies, policies, and
 procedures the State or Tribe has
 adopted pursuant to part 132; (2) a
 cortmcation by the State or Tribal
 Attorney General or other appropriate
 legal authority of adequate legal
 authority to meat the requirements of
 part 132; (3) any other information
 required for submission of NPDES
 program modifications under 40 CFR
 123.62; and (4) general information to
 aid EPA !n determining whether the
 submitted criteria, methodologies,
 policies, and procedures are consistent
 with the Clean Water Act and part 132,
 plus Information on general policies
 which may affect the application of the
 submitted criteria, methodologies,
 policies, and procedures, if any. This
 information must currently be included
 in any submissions for EPA approval of
 Stata revisions to water quality
 standards or proposed modifications to
 Stata NPDES programs under 40 CFR
 131.6 and 123.62.
  If a Great Lakes State or Tribe falls to
 submit criteria, methodologies, policies,
 and procedures to EPA for review,
 proposed § 132.5(c) provides that the
 requirements of this part will apply to
 discharges within the State or Federal
 Indian Reservation upon EPA's
 publication of the final Guidance in the
 Federal Register indicating the effective
 date of the part 132 requirements in the
 identified jurisdictions. EPA does not
 intend to provide at that time an
 opportunity for another round of public
 comment on tha criteria, methodologies,
 policies, and procedures presented in
 ihft proposed Guidance. EPA believes
 that under these circumstances, today's
 public comment period will provide
 adequate notice and opportunity for
 comment on all issues related to the
 criteria, methodologies, policies, and
 procedures. Accordingly, EPA will issue
 the final Guidance identifying the
 criteria, methodologies, policies, and
 procedures that apply in the appropriate
 jurisdictions.
  If a Slate or Tribe submits criteria,
 methodologies, policies, and procedures
 to EPA for review, EPA will issue a
public notice end provide a 30-day
period for public comment on all State
or Tribal submissions under this part
 (proposed § 132.5(d)). This provision is
 included to conform with the existing
 public comment requirements for
 proposed modifications to State NPDES
programs under 40 CFR 123.62(b). After
consideration of public comments, EPA
will either publish a notice of approval
 of the submission in the Federal
 Register within 60 days or notify the
State or Tribe within 90 days that all or
 part of the submission is Inconsistent
                      with the requirements of the Clean
                      Water Act or part 132 and identify
                      .changes necessary to obtain EPA
                      approval. (Proposed § 132.5(d)(ii).) EPA
                      will base the approval or disapproval of
                      the part 132 submission on the
                      requirements of the Clean Water Act
                      and part 132. (Proposed § 132.5(e).)
                        If EPA approves all elements of the
                      State or Tribal submission, the proposed
                      Guidance would not require EPA to
                      promulgate specific provisions for that
                      State or Tribe in § 132.7. In contrast, if
                      EPA instead notifies theftState or Tribe
                      that portions of the submission are
                      inconsistent with the Clean Water Act
                      or part 132, as discussed further above,
                      and the State or Tribe fails to adopt the
                     • required changes within 90 days after
                      the notification, EPA will pubh'sh a
                      notice in the Federal Register
                      identifying the approved and
                      disapproved elements of the submission
                      and a final rule in the Federal Register
                      identifying the sections of part 132
                      which will apply in that jurisdiction.
                      Under these circumstances, EPA will
                      codify in § 132.6 the part 132 provisions
                      which will apply in the Great Lakes
                      States or Tribes that do not submit
                      approvable regulations.
                        EPA is proposing this submission
                      procedure in order to allow time for
                      EPA review and approval if appropriate,
                      State or Tribal notice and correction of
                      any deficiencies, identified during EPA
                      review as necessary; and EPA
                      publication of part 132 criteria,
                      methodologies, policies, or procedures
                      in whole or in part for the State or Tribe
                      where required, within two years after
                      the final publication of the Guidance as
                      required by section 118(c)(2)(C). EPA
                      believes there are two advantages to this •
                      approach. First," it gives States and
                      Tribes the maximum amount of time
                      EPA believes is possible under the
                      statute to make their submissions.
                        Second, proposed § 132.5 simplifies
                      the differing processes of promulgating
                      standards, policies, and procedures by
                      accounting for the minimum
                      requirements for EPA approval or
                      disapproval of water quality standards
                      and NPDES program modifications
                      under sections 303 and 402 of the Clean
                      Water Act. EPA has patterned the
                      proposed submission procedure after
                      the well-established procedure for EPA
                      approval or disapproval of State water
                      quality standards under section 303(c)
                      and 40 CFR part 131 and the procedure
                      for submission of State NPDES program
                      modifications under section 402 and 40 '
                      CFR 123^62. These procedures are
                      familiar to EPA, States, Tribes,  the     .
                      regulated community and the public,
                       40 CFR 131.20 currently requires the
                      State or  Tribe to submit adopted water
 quality standards to EPA for review
 within 30 days of adoption. Section
 303 (c) provides that EPA must approve ,
 State water quality standards within 60
 days of submission or disapprove the
 standards and identify needed changes
 within 90 days of submission. If the
 State standards are disapproved by EPA,
 the State has 90 days to adopt EPA's
 required changes. If such action is not
 taken, the Act requires EPA to promptly
 prepare necessary standards for the
 State, The State or Tribal water quality.
 standard continues to be effective in the
 jurisdiction until EPA promulgates a
 new water quality standard. See also 40
 CFR 131.21.
  The current submission and review
 requirements for NPDES program
 revisions under section 402 are
 described in 40 CFR 123.62. All the
 Great Lakes States have approved
 NPDES programs; however, to date, EPA
 has not authorized any Great Lakes
 Indian Tribe to operate the NPDES
 program. The procedure for submission
 and review of NPDES program revisions
 is different in several respects from that
 of section 303(c), 40 CFR 131.20 and
 131.21, and proposed § 132.5. For
 example, 40 CFR.123.62 does not.
 provide a detailed timetable for review
 of proposed NPDES program revisions.
 Additionally, if a State or Tribe fails to
 submit materials pursuant to part 132 or
 EPA disapproves part of the submission,
 proposed §§ 132.5 (c)and (d) require
 application of those portions of part 132
 to discharges within the State or Federal
 Indian Reservation.
  Proposed § 132.5 of the proposed
 Guidance would provide that
 requirements of this part will become
 effective within a State or Federal
 Indian Reservation if the State or Tribe
 fails to make the necessary submission,
 or if one or more parts of the submission
 cannot be approved by EPA and the
 State or Tribe fails to correct the
 deficiency upon notice by EPA,
 following EPA's publication of the final
 Guidance in the Federal Register
 identifying the elements of the part 132
 requirements that apply in the
 jurisdiction and their effective date in   .
 the jurisdiction. Because the
 requirements of part 132 proposed today
 will receive full public comment before
 the final part 132 Guidance is
 promulgated; EPA believes it is  both'
 unnecessary and an inefficient use of
scarce resources to promulgate separate
notices of proposed and final
promulgation for each State or Tribe for
which EPA must promulgate the part.
 132 requirements in whole or in part. By
instead publishing a finalnotice of
promulgation for each such State or
Tribe, EPA will allow the State or Tribe

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                Federal  Register  /Vol.  58, No. 72  /Friday,  April 16, 1993  /  Proposed Rules
                                                                                                          20847
approval under proposed § 132.5, i
effective in the State or Tribe until
 the maximum available time to submit
 the criteria to EPA and still give EPA
 sufficient time to publish part 132  •
 criteria for the State or Tribe, if      \
 necessary, within the two-year statutory
 deadline.             -.'.'"•'
   Under the proposed Guidance, the
 submission and review procedures in
 § 132.5 will govern EPA review and
 approval of water quality standards and
 NPDES program revisions for Great
 Lakes States and Tribes under part 132
 (§123.62(5); EPA does not intend the
 provisions of proposed § 132.5 to
 change existing Clean Water Act rules
 governing the effectiveness of State or
 Tribal promulgated requirements. That
 is, consistent with the requirements of
 section 303(c), if a State or Tribe adopts
 a revised water quality criterion which
 is submitted to EPA for review and
                              ,itis  .
                  i or Tribe until EPA
 disapproves it and promulgates a new
 criterion. In contrast, State or Tribal
 adoption of NPDES regulations pursuant
 to proposed § 132.5 will not become,
 recognized parts of the State or Tribal
 NPDES program until EPA approves the
 proposed modification. Of course,
' according to the proposed § 132.5,
 procedure, EPA must either approve a
 State or Tribal part 132 submission or
 disapprove and publish the final
 Guidance identifying the conforming
 part 132 requirements that must be
 applied to discharges in the Great Lakes
 System, for all part 132 criteria, policies,
 and procedures, including those which
 are NPDES program elements.
   EPA also retains the ability to object
 to a proposed State or Tribal NPDES
 permit that is inconsistent with the
 Clean Water Act and NPDES regulations
 (40 CFR 123.44(c)(7)), or to withdraw a
 State or Tribal NPDES program that
 does not comply with the Clean Water
 Act and part 123 (40 CFR 123.63(a)).
 Once the requirements of this part
 become effective, they will provide an
 additional basis for EPA objection to the
 issuance of a proposed State or Tribal
 NPDES permit under § 122.44 or for
 withdrawal of NPDES program approval
 under §,123.63 if the provisions.have
 npt been adequately incorporated into
 individual permits or the NPDES
 program. To clarify this intention, EPA
,has also proposed conforming changes,
 which will apply only to Great Lakes
 States and Tribes, to the existing NPDES
 permitting regulations in 40 CFR    -
 122.44(r); 123.25(a)(38); 123.44(c){9);
 123.62(f); and 123.63(a)(6). Similarly,
 EPA has proposed conforming changes
 to the existing water quality standards
 regulations in 40 CFR 131,1; 131.5 and
 131.21(b) to reflect the submission and
                                      review procedures for adoption of water
                                      quality standards under part 132.    .-.  •
                                        EPA invites comments on all aspects
                                      of proposed § 132.5, including
                                      comments on alternative procedures
                                      that would be'efficient and effective and
                                      would satisfy the statutory        :,"-
                                      requirements. Additionally, EPA
                                      specifically requests comment on
                                      whether the final Guidance should
quality standards elements of part 132
or whether EPA should make this
determination on a case-by-case basis ,
for each part 132,submission; There are •
benefits to either approach.
identification of the NPDES program
elements "and water quality standards
program elements in the final Guidance
could facilitate .uniform treatment of all
part 132 submissions and provide     •
certainty to EPA Regions, States, Tribes,
the regulated.community, and the
public concerning the effectiveness of
those .elements during the EPA review
process. On the other hand, flexibility in
this matter is useful in EPA's"experience
because it is sometimes difficult to
distinguish an NPDES! program element
from a water quality standards element
due to differences in State adoption
procedures and terminology. EPA
requests comment on both approaches.
Finally, EPA seeks comment upon
Whether any additional conforming
changes should be made to the existing
NPDES and water quality standards
regulations to implement the   :
requirements of proposed § 132.5.

/. Interpretation of "Consistent With"
  Section il8(c)(2)(C) of the Clean
Water Act requires the Great Lakes
States and Tribes to adopt water quality"
standards, antidegradation policies, and
implementation procedures for water
within the Great Lakes System which
are "consistent with" the final Guidance
proposed today in part 1;32. Section
132.5(e) of the proposed Guidance
specifies when EPA wiH determine that
a State or. Tribe submission is consistent
with the requirements of part 132.
Generally,-'the proposed Guidance
provides that submitted criteria,
methodologies, policies and procedures
are consistent with part 132 if they are
"equal to or more restrictive than" the
provisions in the final Guidance.
  , EPA strongly encourages verbatim
adoption of the final Guidance or   "
adoption with only conforming changes,
such as renumbering sections to
conform with the State or Tribal
regulations, or, for example, replacing  :
"Great Lakes System" with "Lake Erie
System," Adopting the Guidance
verbatim would facilitate EPA approval
 :and guarantee uniformity of these
 provisions throughout the Great Lakes
 System, especially with regard to the
 criteria methodologies. EPA recognizes,
 however, that some States or Tribes may
 desire to supplement.or modify the final
 Guidance which EPA ultimately issues
 to incorporate program-specific       ,
 concerns. Accordingly, in order to  .
 provide flexibility to State and Tribal ••-•''
 regulatory agencies, proposed § 132.5
 does not require verbatim adoption of
 all elements of the final Guidance as
 long as the State or Tribe can
 demonstrate that any such modification
 will not be less restrictive than the  :
 required provision in the final
 Guidance. Section 132.5(e)(3) clarifies
 EPA's intention to evaluate the State
 and Tribal submissions  on a provision-
 by-provision basis by providing that if
 States or Tribes  adopt provisions'more
 restrictive than the final Guidance, the
 more restrictive provision may not be
 offset by relaxation of other specific
 elements of the final Guidance. EPA /
 believes that this condition is
 appropriate to ensure a minimum level
 of consistency in implementation of
 these requirements throughout the Great
 Lakes System. EPA requests comments, ,
 however, on this approach, including
 whether and, if so, Under what '.y   .
^circumstances the fmal Guidance
 should instead.allow relaxation of any  •.
 particular provisions to  offset other
 more stringent provisions adopted in .
 State or Tribal programs.
   EPA recognizes that not requiring  •  •
 verbatim adoption of the final criteria
 methodologies, implementation
 procedures, and antidegradation
 policies will require case-by-case
 determinations of the adequacy of a
 State or Tribal submission, with the
 possibility of minor inconsistencies
 developing between approved programs
 in the Great Lakes System. Because of •
 the length and complexity of the i   •    .
 Guidance, however, EPA also recognizes
 that changes beyond conforming
 changes may be necessary to enable
; State and Tribal programs to function
 appropriately. EPA believes that the
 proposed approach balances the
 competing interests by providing some
 flexibility to the Great Lakes States and
 Tribes, while still ensuring adoption of
 programs that satisfy all mmimum    '
 requirements of the final Guidance. EPA
 invites comments on all aspects of this
 approach and any other alternative
 approaches, including whether the final
' Guidance should require verbatim
 adoption of all elements.
   In §§ l32.5(e)(l) and 132.5(e)(2) EPA
 is proposing specific provisions .•'•'•
• concerning how EPA will determine  :;
 that  State or Tribal numeric criteria and ;

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 20848
Federal Register / Vol. 58, No. 72  /  Friday.  April 16, 1993  / Proposed Rules
 interpretation of narrative criteria are
 consistent with the final Guidance. The
 provisions operate differently
 depending on which pollutants are
 involved, and whether the State or Tribe
 has adopted numeric criteria for the
 pollutant.
   For pollutants listed in Tables 1,2,3
 and 4, EPA will determine that the
 submission is consistent with part 132
 if the Great Lakes State or Tribe has
 adopted criteria corresponding to each
 of tho criteria listed to Tables 1 through
 4, and the State or Tribal criteria are
 equal to or more restrictive than each of
 tho criteria in the Tables. If the State  or
 Tribe has applied site-specific criteria
 modifications, they will need to
 demonstrate that the site-specific
 criteria modification procedures of
 appendix F were used, or if other
 procedures were used, such other
 procedures produce site-specific criteria
 equal to or more restrictive than criteria
 developed through application of
 appendix F procedures.
  For pollutants other than those listed
 in Tables 1,2,3 and 4, the requirements
 of § 132,5(e}(2) are Intended to ensure
 that State or Tribal criteria
 mathodologies and narrative
 Implementation procedures result hi
 criteria or values equal to or more
 restrictive than tho proposed Guidance
 methodology produces.
—If the Great Lakes State or Tribe has
  adopted numeric criteria for the
  pollutant in its water quality
  standards, then the State or Tribe
  must demonstrate that it either used
  the appropriate methodology
  specified in the final Guidance, or,
  using a different methodology,
  obtained criteria equal to or more
  restrictive than the Guidance's
  methodology would produce. If the
  numeric criteria were adopted into
  State or Tribal water quality standards
  prior to the date of final publication
  of this part, §132.5(e)(2Kii) provides
  that the Great Lakes State or Tribe
  may alternatively choose to
  demonstrate to EPA that it has
  adopted a procedure by which the
  State or Tribe will use Guidance-
  based criteria and values, instead of
  the numeric criteria adopted in its
  standards, when it develops water
  quality-based effluent limits and total
  maximum daily loads if the Guidance-
  based criteria and values are more
  rflstrictlva than the adopted criteria.
  Tho reason for including this
  alternative demonstration is to give
  States or Tribes the administrative
  flexibility to determine the adequacy
  of such criteria at a later date—that is,
  the timo when water quality-based
                        effluent limits or total maximum daily
                        loads are developed—rather than the
                        time of the submission required by
                        § 132.5. This may be a reasonable
                        alternative for States that have
                        adopted a large number of numeric
                        criteria into their water quality
                        standards and are unable to review all
                        criteria for consistency with this part
                        in time for the submission required by
                        § 132.5. To'implement such an
                        alternative procedure, the State will
                        need to demonstrate that it has in
                        place the regulatory mechanisms to
                        ensure that the State will apply the
                        methodologies in the final Guidance
                        to develop water quality-based
                        effluent limits and total maximum.
                        daily loads if existing State numeric
                        water quality criteria would result in
                        less restrictive effluent limitations.
                     —If the Great Lakes State or Tribe has
                        not adopted numeric criteria for the
                        pollutant in its water quality
                        standards, then the State or Tribe -,
                        must demonstrate that it  has adopted
                        a procedure by which water quality-
                        based effluent limits and total
                        maximum daily loads will be
                        developed using water quality criteria
                        and values derived pursuant to the
                        Guidance Tier I and Tier n
                        methodologies required by § I32.4(c).
                       EPA believes that the requirements of
                     § 132.5(e) are appropriate to ensure a
                     minimum level of consistency in
                     implementation'of the Guidance
                     throughout the Great Lakes System in
                     accordance with the legislative intent of
                     the Great Lakes Critical Programs Act
                     (see section H.E of this preamble). EPA
                     invites comment on all aspects of these
                     requirements.

                     /. Precedential Effect of Elements of the
                     Guidance
                       The requirements in the proposed
                     Guidance are expressly applicable only
                     to the waters of the Great Lakes System.
                     However, the proposed Guidance
                     addresses many central elements of
                     existing National and State  water
                     quality programs. For example, all
                     States currently have regulations and/or
                     guidance addressing methodologies to
                     derive and implement water quality
                     criteria and antidegradation policies,
                     and procedures for determining TMDLs
                     for specific water bodies. Although
                     some elements of the proposed
                     Guidance incorporate data or
                     considerations specific to the Great
                     Lakes System, EPA believes that many
                     portions might be beneficially applied
                     in other jurisdictions.
                       EPA is not proposing nationwide
                     application of any portions of the
                     proposed Guidance because section
                     118(c){2) of the Clean Water Act is
 limited to promulgation of Guidance for
 the Great Lakes System. EPA does
 request comment, however, on whether
 EPA should issue National guidance or
 propose any modifications to 40 CFR
 parts 122-124,130 and 131 in the future
 to correspond with specific elements of
 today's proposed rule.

 K. Endangered Species Act        ,
   Section 7(a)(2) of the Endangered
 Species Act (ESA) requires each Federal
 agency, in consultation with the U.S.
 Fish and Wildlife Service (FWS), or the
 National Marine Fisheries Service for
 species under its jurisdiction, to ensure
 that actions authorized, funded or
 carried out by the Federal agency are
 not likely to jeopardize the continued
 existence of any endangered or
 threatened species listed under the ESA,
 or result in the destruction or adverse
 modification of such species' critical
 habitat (i.e., are not likely to "cause
 jeopardy"). EPA has initiated informal
 consultation with the FWS to insure
 that implementation of part 132 by EPA,
 States and Tribes is not likely to cause
 jeopardy for species in the Great Lakes
 System. While EPA has not determined
 that consultation is required for all
 aspects of the proposed Guidance at this
 Stage, consultation on the proposed
 Guidance will help insure that
 submissions by the Great Lakes States   '
 and Tribes under part 132 will  provide
 for adequate protection of endangered
 and threatened species, and thereby
 help avoid delays in EPA's approval of
 such submissions. EPA will consider
 the results of our consultation with the
 FWS, along with all public comments
 on today's proposal, in determining
 appropriate requirements for
 endangered or threatened species in the
 final Guidance.
  As a result of the consultation, EPA
 may determine that provisions should
 be included in the final Guidance
 specifically targeted to ensuring the
 protection of endangered or threatened
 species. For example, one approach
 would be to require in § 132.5 of the
 proposed Guidance that any submission
 by a Great Lakes State or Tribe include
 provisions to ensure that the
 development and implementation of
 criteria, methodologies, policies arid
 procedures under part 132 are not likely
 to cause jeopardy. Such a provision hi  *
 the final Guidance would authorize EPA
 to disapprove a submission by a State or
 a Tribe that did not ensure that jeopardy
 of endangered or threatened species ,
 would be avoided, or to require a State
 or Tribe to include measures or
 alternatives recommended by the FWS
to reduce impacts to endangered and
threatened species.

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                  Federal Register /Vat. 5S, No. 72 / Friday, April  16,  1993 / Proposed  Rules
                                                                     20849
   In addition, EPA could adopt in the •
  final Guidance specific.text that States
  arid Tribes would need to include in
 •their submissions in .order to ensure
  adequate protection of endangered and
  threatened species. Regarding
  implementation procedures, the
  Guidance could, for example, require
  that States and Tribes include         '.
  provisions stating that mixing zones and
  variances will not be permitted to the
  extent they will likely cause jeopardy of
  endangered and threatened species.
  Similarly, the final Guidance could
  require that antidegradation policies
  submitted for,EPA approval include a
  requirement that water quality be
  maintained at a level necessary to insure
  that endangered or threatened species
  are not likely to be jeopardized due to
  water quality conditions. EPA solicits
  suggestions of text that EPA could
  include in the final Guidance to ensure/
 •that implementation procedures and
  other relevant aspects of the proposed
  Guidance willprovide for protection of
  endangered and threatened species.
   With regard to water qualitjr criteria,
  EPA expects to consult on the aquatic
  life and wildlife water quality'criteria  '
  and methodologies in the proposed
  Guidance. To the extent these criteria
  and methodologies are determined in
  this consultation to be protective of
  endangered and threatened species in
  the Great Lakes System, adoption of
  these provisions by States and Tribes
  would be approvable by EPA. If these
  criteria and methodologies are
  determined not to be protective of
  certain species in the Great Lakes
  System, EPA is considering including
  text requiring that States and Tribes
  adopt adequately protective site-specific
  criteria. If a State or Tribe adopts site-
  specific modifications to aquatic life
  criteria under section A.l.a of procedure
  I of appendix F to part 132, the State
.  or Tribe will need to ensure that those '
  modifications will provide adequate
  protection of endangered,or threatened
 species. In addition, EPA is considering
 the option of requiring States and Tribes
 to modify aquatic life and wildlife
  criteria/values on a site-specific basis to
. provide protection appropriate for
 endangered and threatened species, and
 EPA soli cits public comments on such
 ail approach.
-  By consulting with the FWS under
 section 7  of the ESA on the proposed
 Guidance, EPA is seeking to carry out its
 responsibilities under the CWA in a
 manner that also helps achieve the
 objectives of the ESA. Obviously, the
 two statutes promote similar goals,
 because improving water quality can
 have beneficial effects on the viability of
 endangered or threatened aquatic life  :
 and wildlife. EPA believes that EPA,
 States and Tribes should pay particular
 attention to preventing water quality
 degradation where it would have:
 detrimental effects on endangered and
 threatened species. If EPA were to
 include provisions addressing
 endangered and threatened species in
.the Guidance, however, EPA would not
 be seeking to impose any procedural
 obligation on Great Lakes States and
 Tribes to consult with the FWS under
 section 7(a)(2) of the ESA. The section
 7 consultation provisions apply only to
 Federal agencies (although Federal
 agencies can in certain cases designate
 non-Federal representatives for
 purposes" of informal consultation).
 Rather, EPA would be explicitly
 addressing the need for protecting
 endangered and threatened species in
 order to insure that promulgation of the
 Guidance and approvals of submissions
 by Great Lakes States and Tribes are
 consistent with the no jeopard}'
 standard in  section 7(a)(2) of the ESA.

 L. Request for Comments
•  EPA has received and placed in the'
 public docket materials submitted
 during the public proceedings on the
 Great Lakes Water Quality Initiative.
 EPA considered these comments in the
 development of the proposed Guidance.
 Because these materials contain
 comments on draft provisions that have
 been superseded by the proposed
 Guidance and EPA would have
 difficulty identifying portions that
 remain relevant to this proposal, EPA
 will not consider them in the
 development of the final Guidance. ,   .
 Additionally, EPA believes that the time
 available for promulgation of the final
 Guidance can be used most efficiently
 and effectively by addressing those
 issues that have not already come before
 EPA. Accordingly, EPA advises the .
 public that for the purposes of     ,
 exhaustion of administrative remedies,
 new comments must be submitted based,
 on the proposed Guidance.
  EPA requests comment on each
 element of the proposed Guidance,
 including all subjects and issues raised
in the preamble discussion whether or
not specific regulatory text has been
provided in  the proposed Guidance, and
any suggested alternative requirements
or, combinations of requirements to
address these elements and issues in the
final Guidance. EPA may promulgate
final rules based on any of the issues or
subjects discussed in the proposed
Guidance, or based on combination of
possible requirements to address these
subjects and issues. EPA expects to
finalize requirements in the final  .
Guidance addressing these subjects and
 issues based upon the discussion in the
, preamble and evaluation of all;
 submitted comments. EPA will not
 make any-final decisions on any
 element or issue of the final Guidance
 until after full consideration of the    -'
 public comments.
 in. Aquatic Life

 A. Introduction and Purpose
   EPA has broad authority to develop
 criteria to protect aquatic life in Great
 Lakes waters, Section 304(a)(l) of the
 Clean Water Act generally authorizes
 EPA to develop criteria to protect
 aquatic life in all waters of the United
 States. Section 118(c)(2)(A) of the Clean
 Water Act requires EPA to develop
 specific numeric criteria to protect
 aquatic life in the Great Lakes. This
 requirement implements portions of the
 Great Lakes Water Quality Agreement of
 1978 (Agreement). One of the
 Agreement's "General Objectives" is
 freeing the Great Lakes System from
 substances resulting from human
 activity that will adversely affect aquatic
 life. Several of the "Specific Objectives"
 for individual pollutants set out in
 Annex 1 of the Agreement are also
 specifically directed at the protection of
 aquatic life. Moreover, both the   .
 legislative history to section 118(c) and
 the text of the Agreement emphasize the
 goal of more consistent water quality
 criteria across the Great Lakes.
.   Observed effects on aquatic life, such
 as population declines and abnormal .
 reproduction, provide clear evidence   ;
 that the goals of the Clean Water Act
 and the objectives of the Great Lakes
 Water Quality Agreement for aquatic life
 are not being met throughout the Great
 Lakes System (Sixth Biennial Report on
 Great Lakes Water Quality,  April, 1992).
 This report is available in the
 administrative record for this
 rulemaking. To improve water quality
 and to promote more consistent
 protection of aquatic life within the
 Great Lakes System, EPA is proposing a
 new approach to developing aquatic life
 criteria for the Great Lakes. Some of the
 criteria in the proposed Guidance are
 more restrictive than the nationally
 applicable criteria EPA has published
 under Clean Water Act section 304(a).
 Further, EPA is proposing to promote
 consistency by requiring Great Lakes
 States and Tribes to adopt specific
 criteria at least as stringent as those
 proposed herein and specific ,
 methodologies identical to or more
 stringent than those proposed herein. As
explained in more detail below, EPA
believes that the proposed criteria for
 aquatic life and the requirements for
 implementing them will conform with

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20850	Federal Register / Vol.  58,  No. 72  /  Friday,  April 16, 1993 / Proposed Rules
tho objectives of the Great Lakes Water
Quality Agreement and be "no less
restrictive" than National water quality
criteria and guidance.
  As described below, EPA is proposing
Great Lakes Water Quality Guidance for
Aquatic Life which contains two tiers,
subsequently referred to as Tiers I and
n. This tiered approach allows Great
Lakes States and Tribes to provide more
consistent protection of aquatic life from
tha discharge of pollutants, even if
information on the pollutant's effects is
too limited to meet the strict data
requirements in tho proposed Guidance
for setting aquatic life criteria under
Tierl.
  The Aquatic Life Tier I methodology
is similar to "Guidelines for Deriving
Numerical National Water Quality
Criteria for the Protection of Aquatic
Organisms and Their Uses" (Stephen, et
ol,,  1985), which is the current National
guidance for developing aquatic life
criteria. A copy of the 1985 National
Guidelines is available in  the
administrative record for this
rulomaking. Copies are also available
upon written request to the person
listed in section XIII of this preamble.
Tho 1985 National Guidelines can also
bo obtained through the National
Technical Information Service (PB 85-
227049). The Tier I methodology is to be
used in deriving Great Lakes Aquatic
Lifo Criteria for use in State and Tribal
Water Quality Standards. The Tier I
criteria are based on the latest scientific
knowledge and are derived using an
is "a new tool" for regulating discharges
within the Great Lakes System when
sufficient data do not exist to derive a
Tier I criterion. While similar concepts
hava been employed by individual
States within the Great Lakes System,
this Tier n methodology will provide a
consistent approach for all Great Lakes
States and Tribes. This methodology
utilizes limited lexicological data to
derive conservative regulatory values for
individual pollutants. The Tier n
methodology will be used in
conjunction with the proposed whole
effluent toxicity requirements, in
interpreting the State's narrative criteria
(e.g., no toxic pollutants shall exist in
toxic amounts). Tier n values can serve
as the basis for some regulatory
decisions, such as permit limitations.
Although the State or Tribe will have
authority to adopt Tier n values as
standards, it is not intended that Tier n
values will  normally be adopted as State
water quality standards. Rather, EPA
believes it is more desirable for the
regulatory agencies and/or dischargers
to continue to supplement data on
 pollutants to the point where a Tier I
 criterion can be calculated and
 subsequently adopted as a criterion for
 use in State and Tribal water quality
 standards.

 B. Tier I Criteria

 1. Methodology
  The Committees of the Initiative
 chose, as the starting point for the
 development of the Aquatic Life Tier I
 methodology, EPA's "Guidelines for
 Deriving Numerical National Water
 Quality Criteria for the Protection of
 Aquatic Organisms and Their Uses"
 (1985 National Guidelines) as cited in
 SO FR 30784 (July 29,1985) and
 developed under section 304(a) of the
 Clean Water Act.
  The 1985 National Guidelines contain
 provisions for deriving both freshwater
 and saltwater criteria. As the Great
 Lakes System is composed entirely of
 fresh water, those portions of the 1985,
 National Guidelines which pertain to
 fresh water serve as the basis for the
 Tiejr I aquatic life methodology in the
 proposed Great Lakes Water Quality
 Guidance. Since the Great Lakes Tier I
 methodology closely resembles the 1985
 National Guidelines, the following
•narrative is a discussion of the 1985
 National Guidelines and the specific
 changes made to it in the proposed
 Guidance for Tier I aquatic life
 methodology.
  The proposed Great Lakes Guidance,
 like the 1985 National Guidelines,
 results in the derivation of two criteria
 concentrations to protect aquatic life for
 any given pollutant. The first of these,
 the Criterion Maximum Concentration
 (CMC), is designed to protect aquatic
 life from effects of short term or acute
 exposures. The second, the Criterion
 Continuous Concentration (CCC), is
 designed to protect against effects to
 aquatic life due to long term or chronic
 exposure. In order to derive a CMC for
 a pollutant, it is necessary that
 acceptable acute toxicity studies exist
 for aquatic animal species in at least
 eight families which represent differing
 habitats and taxonomic groups. These
 eight families are intended to represent
 a wide spectrum of aquatic animals. The
 Great Lakes aquatic life methodologies
 provide guidance on determining data
 acceptability.
  Results of acute toxicity studies are
 expressed in terms of ECSOs or LCSOs.
 An EC50 is the concentration which
 will cause an adverse effect to 50
 percent of the exposed individuals (e.g.
 immobility, possibly including death)
 within a given period of time (typically
 48 hours for daphnids and other
 cladocerans, and 96 hours for other
aquatic animals). An LC50 is the
concentration oif a pollutant which will
cause the death of 50 percent of the
exposed individuals within these same
lime frames. EPA is proposing to follow,
the approach established in the 1985
National .Guidelines for deriving a Final
Acute Value (FAV) to protect a broad
range of aquatic species by ranking th e
Genus Mean Acute Values (geometric
means of the Species Mean Acute
Values for. each genus), and then
interpolating or extrapolating to
estimate the acute value for 95 percent
of the genera tested. As described in the
1985 National Guidelines, the FAV must
be set equal to the lower of the 95th
percentile value, or the Species Mean
Acute Value for a species of commercial
or recreational importance (the Tier I
methodology differs from the 1985
National Guidelines by specifying that
the FAV should only be lowered for a  '
species that is recreationally or
commercially important to ,the Great
Lakes System). The CMC is equal  to
one-half the FAV. The FAV is divided
by two to convert a concentration toxic
to 50 percent of the individuals of the
tested species, to a concehtration'not
acutely toxic for nearly all individuals
of the species.
  EPA believes that the proposed
methodology provides a broad base of
protection for the aquatic life of the
entire Great Lakes System. There are
documents for the sixteen proposed Tier
I criteria, within the Administrative
Record, which contain detailed
information on the range of species
tested.
  The Technical Work Group
considered inserting a provision in the
Great Lakes Tier I procedure that would
also allow the lowering of the FAV to
protect "ecologically important" species
of the Great Lakes. However, it was felt
that it would be unnecessary given the
scope and protective nature of the
proposed Guidance to single out
particular species for additional
protection on the basis of "ecological
importance", because the method
generally provides protection for the
entire ecosystem. Furthermore, the
Technical Work Group could not reach
consensus on identifying any individual
species as "ecologically important" or
defining the term "ecologically
important". Therefore, the proposed
Guidance does not include provisions
for lowering an FAV for "ecologically
important" species. This is consistent
with the 1985 National Guidelines. EPA
invites comment on this issue, and
particularly on the issues of how to
define "ecologically important'' species
for the Great Lakes, and whether or not
such "ecologically important" species * "

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              Federal Register /Vol. 58, No. 7g 7 Friday, April  16,  1993 / Proposed Rules
                                                                                                           20851
! adequately protected by the
>posed guidance.
 are (
 proposed guid_...__..
   •EPA is proposing slightly greater
 modifications to-the 1985 National
 Guidelines' approach to chronic
 exposures. In the 1985 National
 Guidelines, the CCC is the lowest of the
 Final Chronic Value (FCV), the Final
 Plant Value (FPV) or the Final Residue
 Value (FRV). The reason the 1985
 National Guidelines set the CCC as the
 lowest of the FCV, FPV, or the FRV is
 to provide protection for aquatic plants,
 wildlife and the marketability of
 commercially-important aquatic species,
 as well as other aquatic animals. As
 explained in more detail below, EPA is
 proposing to retain the options of using
 either a FCV or a FPV to determine the
 CCC, but proposing to delete the option
 of using FRVs.
   EPA. is proposing to follow the
 approach established in the 1985  .
 National Guidelines by allowing the
 FCV to be calculated in one of two
 ways. If acceptable chronic toxicity
 studies (i.e., studies which span a
 significant portion of the life cycle of
 the tested species and which measure
 endpoints such as growth and .
 reproduction) exist for the required
 eight families of aquatic animals (which
 represent differing habitats and
 taxonomic groups), then the  FCV can be
 calculated using the same mathematical
 procedure as was used in tie derivation
 . of the FAV. If acceptable chronic
 toxicity studies do not exist for the eight
 families, the FCV must be set equal to
 the lower of the quotient of the FAV
 divided by the Final Acute-Chronic
 Ratio (ACR). The Acute-Chronic Ratio
 (ACR) is a way of relating acute and
 chronic toxicities. To'derive  an ACR,
, comparable acute and chronic toxicity
 studies have been conducted 'under
 similar conditions for a given species.
 From comparable measurements of
 acute .and chronic values, an ACR is
 calculated by dividing the measured
 acute value by the measured chronic
 value. EPA is proposing to follow the
 1985 National Guidelines by requiring
 ACRs for at least three families of
 aquatic animals. The Final Acute-,
 Chronic Ratio (FACR) must be either the
 geometric mean of some or all. of the.
 species ACRs or another value
 appropriate for sensitive species.
   The 1985 National Guidelines allow
 the use of ACRs for saltwater species in
 the derivation of the FCV for freshwater
 animals. Because the Great Lakes are
 freshwater lakes, the proposed Great
 Lakes Guidance, while still-allowing for
 the use of saltwater ACRs, expresses a
 preference for the use of freshwater
 ACRs. EPA invites comment on the
 preference for freshwater acute-chronic
 ratios in calculating a Final Chronic
 Value to protect species within the
 Great Lakes System.
   AS with the PAV, the Great Lakes
 Guidance provides for the lowering of
 the FCV, where necessary, to protect a
 commercially or recreationally
 important species within the Great
 Lakes System. However, similar to the
 earlier discussion pertaining to FAVs,
 the Guidance does not include an
.option of lowering the FCV for
 "ecologically important" species. EPA...
 invites comment on this issue.
   A plant value is the result of a 96-
 hour test conducted with an alga, or a
 chronic test conducted with an aquatic
 vascular plant. The FPV is obtained by
 selecting the lowest result from a test
 with an important aquatic plant species,
 in which the endpoint was biologically
 important (e.g.; survival) and the test
 concentrations were measured. EPA is
 proposing to, retain the provision of
 setting the CCC equal to the lower of the
 FCV or the FPV, as in the 1985 National
 Guidelines.
   the 1985 National Guidelines      "
 indicate that the FRV is intended to :
 prevent concentrations of pollutants in
 commercial or recreational aquatic
 species from affecting the marketability
 of those species or affecting wildlife that
 consume aquatic life. By preventing the
 exceedance of applicable FDA action
 levels (concentrations of pollutants set
 by FDA as acceptable amounts in      ..
 marketable fish tissues for human
 consumption), marketability of those
 species can be maintained. The FRV is
 also intended to protect wildlife,
 including mammals and birds, that
 consume aquatic organisms.
   The proposed Great Lakes Guidance
 does not include provisions for
 calculating a FCV on the basis of a FRV,
 as specified in the 1985 National
 Guidelines. (This change, in part, results
 in criteria which are different from
 published National aquatic life criteria
 which are based on a FRV, e.g., dieldrin,
 endrin, and mercury.) There are several
 reasons for this change.
   First, a separate methodology for
 deriving criteria for the protection of
 wildlife is being proposed under a
.separate  portion of the Guidance,     '
 whereas  no such guidance currently
 exists on the National level. The FRV is
 currently utilized to provide protection
 to wildlife within the 1985 National
 Guidelines for the protection of aquatic
 life; EPA believes that the'wildlife
 criteria proposed in the proposed
 Guidance will be derived hi a manner
 that would yield more appropriate
 criteria to protect wildlife than the FRV.
 More detailed information 'on the
 wildlife criteria in the proposed   ;    :
  Guidance may be found hi section VI
  below. Thus, for the purposes of the.'(-.
  Great Lakes System, provision for a CCC
  based on impacts to wildlife would be
  dupUcative and less Great Lakes-
  specific.; EPA invites comment on this
  issue, and particularly oh whether it is
  necessary to have provisions, within the
  aquatic life guidance, to ensure
  protection of wildlife, rather than
  having a separate methodology directed
  at- protection of wildlife.
    Further, EPA believes that the
  assumptions which are made hi'the
  development of an FDA action level,  '
, and particularly the fact that those   .
  action levels are based upon National
  fish consumption values, makes the
  application of these action levels
  inappropriate for use in the proposed
  Guidance. Rather, EPA believes that the
  derivation of criteria for the protection
  of human health within the Great Lakes
  System more appropriately takes this
  consideration into account with Great
  Lakes fish consumption values.  '
  Therefore, EPA believes that the human
 : health methodologies being proposed
  elsewhere in this notice will provide an
  appropriate level of protection to
  humans consuming Great Lakes  fish.
    More detailed information on the
  human health criteria proposed may be
  found in section V below. Again, given
  the human health criteria proposal, EPA
  believes that for the purposes of the
  Great Lakes, provision for usage  of FDA
  action levels would be dupUcative and
  less Great Lakes-specific. Thus, the
  proposed Guidance only provides for
  the derivation of a CCC based either on
  a FGV or a FPV. EPA invites comment
  on this issue, and particularly on the
  issue of deleting the use of a FRV.
    In its December 16,1992, report,
  "Evaluation of the Guidance for the
  Great Lakes Water Quality Initiative,"
  the EPA's Science Advisory Board
- (SAB) recommended that EPA: consider
  both the biologically active form and the
  total contaminant concentrations of a
  pollutant when establishing water
  quality criteria, This report is available
.in the administrative record for this
  rulemaking. Within the Tier I
  methodology, section I.A.3 of appendix
  A to part 132, the State or Tribe is given
  guidance in determining for what form
  of the pollutant to derive the criterion.
  The State or Tribe is given guidance in
  determining ah operational analytical
  component to the criterion that
  describes the analytical method that is  "
  intended. The methodology itself does,
  not specify a particular analytical
  method that must be used. The
  analytical method chosen must
  accurately reflect the form of pollutant
  for which the criterion is derived. The

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20852	Federal Register / Vol. 58, No. 72 7 Friday^ April 16, 1993  /  Proposed Rules
criteria documents for 9 of the 16
pollutants for which Tier I criteria are
Doing proposed in the proposed
Guidance identify an analytical
methodology that should he used. The
State or Tribe has the flexibility to
choose the most appropriate analytical
method. The State could choose, for
example, to derive a criterion for the
bioavailablo form, or for the total
contaminant concentration. Although
criteria developed using the Tier I
method in the proposed Guidance may
not consider both the biologically active
and total contaminant concentration, a
mechanism within the site-specific
criteria modification procedure,
procedure 1 of appendix F to part 132
may be used to address this concern.
Because the bioavailability of a
pollutant is linked to the water
chemistry within a specific receiving
water or effluent, EPA believes the
water-effect ratio approach, as described
in the 1983 Standards Handbook,
Chapter 4 and as modified by the 1992
Interim Guidance on Interpretation and
Implementation of Aquatic Life Criteria
for Metals, which is available in the
administrative record of this
rulomaking, is the appropriate
mechanism to address bioavailable
versus total concentrations of
contaminants.  The water-effect ratio
approach is a biological method which
compares bioavailability and toxicity of
a contaminant in receiving waters
versus laboratory test waters. EPA
invites comment on whether
bioavailability of contaminants is
adequately addressed using site-specific
modification approaches, as well as
alternatives to  address the issue of
expressing toxicity of both bioavailable
and total contaminant concentrations.
  The 1985 "Guidelines for Deriving
Numerical National Water Quality
Criteria for the Protection of Aquatic
Organisms and Their Uses" (1985
National Guidelines) have previously
undergone scientific peer review and
public review and comment, and have
boon revised as appropriate. Therefore,
for those portions of the Tier I aquatic
life methodology that are the same as
the 1985 National Guidelines, EPA does
not intend to address the issues already
addressed by EPA in response to
previous comments in this proposed
rulemaking.
2. Selection of Pollutants for
Application of Tier I Criteria
Methodology
  Tho Groat Lakes Water Quality
Guidance specifies o number of numeric
limits on pollutants in ambient Great
Lakes waters to protect aquatic life,
along with the methodology used in
calculating criteria. To begin the process
of developing criteria and to evaluate
the proposed methodologies, the
Initiative Committees selected 26
pollutants for which there are current
National water quality criteria for the
protection of aquatic life and which are
included in Table 6 to derive Tier I
aquatic life criteria (see list of 26
pollutants in the Administrative
Record). Of these 26 pollutants, EPA is
proposing, in the proposed Guidance,
numeric (Tier I) criteria for 16. EPA is
proposing numeric criteria derived
using the proposed Tier I Aquatic Life
methodology for an additional pollutant
for which there is currently not a
National criterion (phenol). EPA has
derived draft National criteria for
phenol, which are currently undergoing
EPA review and will be proposed hi the
Federal Register as draft National Clean
Water Act section 304(a) criteria, once.
that review is complete.
  The reasons EPA is not proposing Tier
I criteria for the other nine pollutants
are set forth below. First, some of the
National aquatic life criteria were
developed before 1985, under a ,
methodology different from the 1985
National Guidelines. The earlier
methodology did not have the same
minimum data requirements as the
current Tier I methodology or,the 1985
National Guidelines. The data used to
determine the 1980 criteria for aldrin,
chlordane, DDT, endosulfan,
heptachlor, lindane, and PQBs, while
adequate under the earlier methodology,
do not meet the minimum data   ,
requirements established in the 1985
National Guidelines. (Data were not
sufficient to calculate a chronic Tier I
criterion for lindane; however, there  ,
was a sufficient data set to calculate an
acute Tier I criterion.) Therefore, these
pollutants do not meet the minimum
data requirements needed to derive Tier
I aquatic life criteria even though there
are existing National criteria for them.
  Further, there are three pollutants that
were developed under the 1985
National Guidelines for which the
Agency made exceptions to its
minimum data requirements. The
National aquatic life criteria for lead
("Ambient Water Quality Criteria for
Lead—1984"), toxaphene ("Ambient
Water Qualify Criteria for Toxaphene—
1986") and chlorpyrifos ("Ambient
Water Quality Criteria for
Chlorpyrifos—1986") have data for only
seven of the eight families required.
EPA believes that the National criteria
for these pollutants would not be
significantly different with the addition
of the eighth data point. However, the
Initiative Committees proposed to
follow the Tier I methodology, as
written. In addition, the Tier n
methodology allows for the missing data
to be provided or developed by the
regulatory agency or permittee.
Therefore, Tier I aquatic life criteria
were not calculated for lead, toxaphene,
and chlorpyrifos. The Steering
Committee believed that the Tier II
methodology should be used for all
pollutants of initial focus in the Great
Lakes Water Quality Initiative (i.e.,
pollutants in Table 6) which do not
meet the data requirements in the Tier
I methodology. EPA notes that it.
continues to believe that the decision to
allow exceptions to the database
requirements for these three pollutants
was reasonable for the National criteria,
since EPA has not developed any
procedure resembling Tier n that could
be used as a "fallback" on the National -
level.
  EPA is proposing to follow the
Steering Committee's proposals not to
promulgate, at this  time, specific
numeric criteria for these nine
pollutants. EPA requests comment on
the alternative proposal of requiring
States and Tribes to adopt the current
National criteria for these pollutants,
even though these National criteria are
based on methods developed before
1985 or on less than the minimum data
requirements for the 1985 method. The
fact that criteria for these specific
pollutants are not being proposed in the
proposed Guidance does not mean that
criteria cannot, or will not, be
developed in the future. Moreover, the
States and Tribes will be able to regulate
these pollutants using the proposed Tier
H methodology before any criteria are
developed.
  Aquatic data exists to derive aquatic'
life criteria for aluminum. However, due
to time and resource limitations, aquatic
life criteria for aluminum could not be
derived. As proposed, this Guidance
would leave the derivation of aquatic
life criteria for aluminum to the States.
EPA requests comment on this approach
and alternatively whether EPA itself
should derive aquatic life criteria for
aluminum.

3. Tier I Numeric Criteria

  Table IE—1 presents CMCs, or acute
criteria, calculated  using the proposed
Tier I methodology for aquatic life. For
comparison, the CMCs of existing
National criteria are also included.
Differences between National and Great
Lakes Tier I acute and chronic criteria
can be attributed to one or more of three
reasons. .     .             •

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                 Federal Register 7 Vol.  58,  No. 72  / Friday, April 16, 1993 / Proposed Rules
                               20853
   TABLE 111-1 .—Acute AMBIENT WATER
    QUALITY CRITERIA FOR AQUATJC LIFE
Chemical . -
Arsenic (111) ..s: 	
Cadmium b ' 	 	 	 .-
Chromium (III)" 	 ....
Chromium (VI) .........;
CODD6fb ................ ,i..
Cyanide free 	 ;....
Dieldrin 	 	 .....


Mercury (!l) 	 	
Nickel b 	 	 .,......;.
Parathion 	 	
Pentach!orophenolc .
Phenol
Total Selenium 	 	
Zinc" 	 	 	 ........
Great
Lakes
CMC*
340
2.1
1000
16
7.3
, 22
0.24
0.09
0.95
0.83
260
.065
5.3
3700
20
67
National
CMC*
360
1.8
980
16
9.2
22
"2.5
"0.18 •
d2.0
2.4
790 '
.065
5.5
20
65
   "All values are in fig/L.           ,   '
   bThe toxicity of ttiis chemical is hardness
 related;  the  criterion expressed  is  at  a
 hardness of 50 mg/L     "   ,
  "cThe criterion  for  this chemical is pH
 dependent; the criterion expressed is at a pH
 Of 6.5.        •-   -       .".      '
 •  "This value is an FAV that was calculated
-according to the ,1980'guidelines. Although the
 CMC  =  FAV/2  in 'the  1985   National
 Guidelines, there is no CMC  in the  1980
 guidelines and the procedure used to derive
 the FAV is different from that used in the 1985
 National Guidelines/    .-•  /

 '• First, the existing National criteria
 •were derived between 1980 and 1987.
 Some .of the criteria derived using the
 Great Lakes Guidance were calculated
 using data, published subsequent to
 individual National,criteria documents, .
 Those chemicals for which this applies
 are: cadmium, chromium, copper,
 dieldrin, endrin, lindane; mercury,
 nickel, selenium, silver, and zinc. The
 development of an updated database
 resulted in less restrictive acute and/or
 chronic criteria for cadmium, chromium
 HI, and zinc as compared to National
 criteria. However, EPA believes that, the
 differences between the proposed Great
 Lakes criteria and the National criteria'
 are insignificant. Furthermore, it is
 EPA's position that usage of the Great
 Lakes criteria is more appropriate than
 the National.criteria because they are
. based on more recent data. EPA,
 however, requests comment on the
 option of promulgating the National
.criteria values.for those pollutants
 which have more stringent National
 criteria values.
   Secondly, ,as mentioned earlier, some
.of the National criteria were derived
 using a methodology which preceded
 the 1985 National Guidelines. Where
 sufficient data existed, the committees
•recalculated the criteria, tobe^consistent
 with the methodology being proposed.
 Those chemicals for which this applies
 are: Dieldrin, endrin,'and       ^
 hexachlorocyclohexane (lindane).
" (chronic criteria only). None of these    '
 proposed criteria, however, are less
 restrictive than the current National   •
 criteria.          •
   Third, some corrections were required
 in some of the National criteria  -•
 documents. Some of the data used in   •
 deriving the National criteria were.
 deleted because they were not.
 considered acceptable under the current
 toxicity testing protocol described in
 sections n, HI, IV, V, VI, and VH of the
 proposed Great Lakes methodology for
 Tier I aquatic life criteria (appendix A
 to part 132). The pollutants for which
 this applies are copper, dieldrin and
 endrin. None of these changes produced
 criteria that are less restrictive than the
 National criteria.
   A technical support document, "Great
 Lakes Water Quality Initiative Water
 Quality Criteria for Protection of
 Aquatic Life in Ambient Water, Criteria
 Documents," discusses the derivation of
 each of the Tier I acute criteria and the
 toxicity studies from which the criteria
 were derived are available in the
 administrative record for this
 rulemaking. The proposed Guidance
> would require that the numeric criteria
 in Table 1 to part 132 be adopted by the
 Great Lakes States and Tribes and
 incorporated into their ambient water
 quality standards. The specific
 requirements on how these criteria are.
 to be incorporated into State and Tribal
 water quality standards are discussed in ...
 section II of this preamble.
   Table HI—2 presents CCGs, or chronic .
 criteria, calculated using the proposed  '
 Tier I methodology for aquatic life. For
•comparison, the CCCs of existing
 National criteria are also included. In
 addition to the reasons cited earlier
 concerning differences between
 National and Great Lakes CMCs, several
 of the Great Lakes CCCs are affected by,
 the preference of using freshwater    ,
 ACRs,   ;    '

  TABLE 111-2.—-CHRONIC AMBIENT WATER
   QUALITY CRITERIA FOR AQUATIC LIFE
TABLE 111-2.—CHRONIC AMBIENT-"WATER
  QUALITY ^CRITERIA FOR AQUATIC LIFE—
  Continued             :    .
Chemical
Penta- ".•'-' ,
chlorophenolc ...
Phenol .., 	 	
Total Selenium .....
Zinc". 	 	 	 	
Great
Lakes
CCC"
3.3-
, 120
5.0
60 ,
National
CCC*
3.5
5.0
59
Chemical .
Arsenic (III) 	 .....
Cadmiurhb .............
Chromium (111)" :...
Chromium (Vl) 	 	
Copper b 	 .:.;;....:
Cyanidei free.........
Dieldrin 	 ............
Endrin 	 	 ........
Mercury (11) 	 	 •;-.
Nickel b 	 ..........
Parathion 	 ..:......
Great
Lakes
CCC"
150
• 0.78
49
11 '
5.2
5.2
0.056
. 0.037
0.44
29
0.013
National ,
CCC»
190
0.66
• .120
11
6.5
5.2
"0.0019
d 0.0023
d0.012
88
0.013
  •All values in
  bThe toxicity of this chemical  is hardness
related;  the ~ criterion  expressed  is  at  a
hardness of 50 rhg/L.
  "The toxicity ofthis chemical is pH related;
tie criterion expressed is at a pH of 6.5.
  d Based upon Final. Residue value.

  The derivation of each of these
chronic criteria, and the toxicity studies
upon which they are based, are also
discussed in "Great:Lakes Water Quality
Initiative Water Quality Criteria for
Protection of Aquatic Life in Ambient
Water, Criteria Documents." This
document is available in the
administrative: record for this.
rulemaking. The proposed Guidance
would require that the numeric criteria
in Table 2 to part 132 be adopted by the
Great Lakes States and Tribes  and
incorporated into their ambient water
quality standards. The specific
requirements oh how these criteria are •
to be incorporated into State and Tribal
water quality standards are discussed in
section n of this preamble.

1. Potential Changes to National
Guidelines
  EPA periodically reviews and updates
the methodology which is used to
derive National aquatic life criteria to  .
accurately reflect the latest scientific ':.
knowledge. Currently, an EPA work
group is reviewing "Guidelines for ,
Deriving Numerical National Water-
Quality Criteria for the Protection of
Aquatic Organisms and Their Uses" „
(1985 National  Guidelines). EPA may
propose changes to the 1985 National
Guidelines in 1993: Within the 1993
proposal, EPA may choose to
incorporate some or all of those changes
into  the Great Lakes Tier I methodology,
as "described in  the proposed Guidance.
EPA advises all'persons with an interest
in the Tier I criteria to watch for .the '  •
proposal on revisions to the 1985
National Guidelines.

C. Tier II Values         ,\    .
  The Initiative Committees struggled
with how to regulate pollutants for
which an extensive data base, as
required for the Tier Imethodology and
the 1985 National Guidelines', does not
exist. In many cases, States and Tribes

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20854
Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993  / Proposed Rules
need to regulate discharges for which a
full complement of aquatic toxicity data
is not available for a particular
pollutant. Some of the Great Lakes
States and Tribes, such as Ohio and
Michigan, currently have procedures
that are intended for USB as translator
mechanisms for narrative criteria (e.g.,
no toxic substances in toxic amounts).
The Steering Committee wanted to
ensure consistency among States and
Tribes in using limited data to derive
values for regulating discharges in the
Great Lakes System, The Steering
Committee also wanted to develop a
methodology to be used as a translator
mechanism common to all Great Lakes
States and Tribes that could be used in
sotting permit limits for the Great Lakes
System. This approach is consistent
with the goals and purposes of the Great
Lakes Critical Programs Act of 1990.
Also, as explained in section K of the
preamble, EPA wanted to give
dischargers an incentive to conduct
studies and develop data that would
permit EPA to promulgate Tier I criteria
for additional pollutants.
  To address the needs referenced
above, the Steering Committee
developed a Tier II methodology under
which aquatic lifa values could be
calculated with fewer than the eight
taxonomic families of data required for
a Tier I criterion calculation. This
methodology may be found in sections
XQ through XVHI of appendix A to part
132. The purpose of this methodology is
to provide Great Lakes States with
guidance on evaluating pollutants from
both point and nonpoint sources when
there is insufficient data to develop a
Tier I criterion.
  The Steering Committee intended that
tho outcome of a Tier II analysis would
ba a somewhat conservative value to
reflect the increased uncertainty
surrounding a more limited database.
This consideration resulted in the
development of a methodology which
produces more stringent (lower) values
where there are fewer data and higher
values as the database increases. EPA
agrees that a uniform method will
advance the goals of the Great Lakes
Critical Programs Act of 1990, and is
proposing the method that the Steering
Committee developed.
  EPA, on, a long-standing basis, has
recommended that an integrated
approach to water quality-based toxics
control bo used. This integrated
approach uses both chemical specific
and wholo effluent means for
controlling discharges. Chemical
specific water quality criteria and Tier
H values reflect the concentration and
dispersal of pollutants, or their
byproducts, through biological,
                      physical, and chemical processes, and
                      the effects of pollutants on biological
                      community diversity, productivity, and
                      stability of the receiving water. A water
                      qualify standard defines the water
                      quality goals of a water body, or portion
                      thereof, by designating the use or uses
                      to be made of the water, by setting
                      criteria necessary to protect the uses,
                      and by establishing antidegradation
                      policies and implementation procedures
                      that serve to maintain and protect water
                      quality. On the other hand, whole
                      effluent toxicity (WET) is a useful
                      parameter for assessing and protecting
                      against impacts upon water quality and
                      designated uses caused by the aggregate
                      toxic effect of the discharge of
                      pollutants. In particular, the WET
                      approach is used when the toxic agent
                      is unknown within the effluent or
                      possible chemical interactions are not
                      understood.
                        One of the advantages to having
                      chemical specific Tier n values is that
                      facilities can design treatment to
                      address a particular contaminant. For
                      whole effluent toxicity, facilities have ,
                      less knowledge of and experience in
                      designing or manipulating treatment
                      systems to treat the general parameter of
                      toxicity.
                        Current EPA regulations at 40 CFR
                      122.44(d)(l) articulate when chemical-
                      specific and whole effluent toxicity
                      limits are required in a permit to meet
                      State water quality standards, including
                      both the narrative and numeric criteria.
                      When the permitting authority
                      determines that a discharge causes, has
                      the reasonable potential to cause, or
                      contributes to an excursion of the
                      narrative criterion within the State
                      water quality standards, the permit must
                      contain limits for whole effluent
                      toxicity. The only exception to this
                      requirement is where the permitting
                      authority demonstrates that chemical
                      specific limits are sufficient to attain
                      and maintain applicable narrative and
                      numeric State water quality standards
                      (40 CFR 122.44(d)(l)(v). Likewise,
                      where the discharge, of a particular
                      pollutant causes, has the reasonable
                      potential to cause or contributes to the
                      excursion of.a State's narrative criterion,
                      the permit must contain effluent
                      limitations to control the discharge of •
                      that pollutant (40 CFR 122.44 (d)(vi).
                      These regulations provide three options
                      ((A)-(Q) for interpreting the State's
                      narrative criteria for purposes of
                      deriving permit limits to control the
                      pollutant(s) of concern. These three
                      options focus primarily on the
                      derivation of chemical specific limits,
                      however, option (C) provides the
                      opportunity to utilize controls on an ,
                      indicator parameter or pollutant. Whole
 effluent toxicity can be used as an
 indicator parameter under this option.
   In short, EPA regulations require the  •
 use of WET limits and chemical specific
 limits to protect the State's narrative
 water quality criteria, but also prescribe
 circumstances under which both types
 of limits are not necessary for a
 discharger that is or may be  encroaching
 on the State's narrative criteria.
   This NPDES regulation provides
 flexibility to States in deciding which
 option or combination of options to use ''
 in developing acceptable levels of
 discharge for the pollutants  of concern.
 The Great Lakes States desire consistent
 implementation and application of all
 .criteria, including the narrative
 criterion, across the basin. The approach
 used in the Great Lakes Initiative
 Guidance, is equivalent to requiring a
 criterion be derived using both options
 (A) and (C) of 40 CFR 122.44(d)(l)(vi),
 where the Tier n value will act as option
 (A) and WET as option (C). With this
 approach, States can ensure consistent
 implementation of the narrative
 criterion for water quality.
   EPA recognizes that Tier n
 requirements for aquatic life and WET ;
 testing do overlap substantially. The
 Steering Committee, however,
 recommended requiring both methods
 to make regulation more uniform across
 the Great Lake States and to increase the
 level  of protection for aquatic life in the
 Lakes. The Committee also expected the
 relatively stringent Tier n requirements
 to motivate some permittees to conduct
 enough  testing to support development
 of less restrictive and more robust Tier
 I criteria.
   EPA requests comment on the need
 for requiring limitations based upon
 Tier It values as well as using WET in
 place of a Tier II value, and  other
, options for harmonizing the two
 requirements.      '          •   , -
   Elements of Michigan's "Rule 57"
 process were considered by the Steering
 Committee in developing the proposal
 for the Tier II methodology.  "Rule 57"
 is a two-tiered approach for calculating
 regulatory values for toxic substances.
 In the absence of sufficient aquatic  -
 toxicity data for a Tier I calculation, this
 approach allows for calculation of an
 acute criterion by dividing the lowest
 acute value for either a Daphnid sp.,
 rainbow trout, or fathead minnow by a
 factor appropriate for the species
 combination. These factors were derived
 from  a statistical analysis developed by
 Michigan with the intent of producing
 a criteria that is more restrictive than
 one calculated with a Tier I database 80
 percent of the time. A chronic value is
 calculated by dividing the acute   .

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                 Federal Register /Vol. 58, frTo.;72 / Friday,'April 16, 1993  /Proposed Rules          20855
 criterion by a laboratory derived or
 default acute-chronic ratio.
 .  While the "Rule 57" Tier H approach.
 answered the need for a method .
 whereby a smaller database could be
 used to derive values, it usedjoxicity  :
 studies for only three species (rainbow
. trout, fathead minnow, and daphnids).
• Even if additional toxicity data existed
 for a giveii pollutant, those data would
'not be used to derive a Tier II value. The
; Initiative Committees sought a method
 that provided the option of utilizing all
 available, acceptable data for-pollutants
 notmeeting the Tier I-dkta requirements
 (e.g., a method that utilized data on
 aquatic species .from fewer than eight;
 families}.                  '"'--.-•
   Another methodology considered'was
 EPA's draft "Guidelines for Deriving
 Ambient Aquatic Life Advisory      '  •'-
 Concentrations" (Office of Water
 Regulations & Standards, 1987), which
 is available in the administrative record
 for this rulemaking. This approach
 allowed the use of more data than "Rule
 57." Acutelvalues for one to twenty  .
• species of aquatic animals could be used
 to derive a value in place of a Tier I
 criterion. The 1987 draft Guidelines also
> applied factors to calculate conservative
 values and used assumed ACRs when
 there were not enough experirnemtally-
 derived ACRs.  However, the adjustment
 factors in this method were not based on
 an analysis of empirical data, but
 chosen by using best professional
 judgment. The 1987  draft Guidelines
 were never actively used by EPA due to
 recommendations by the EPA's Science
 Advisory Board that the factors be
 statistically derived. Although the '.
 Initiative Committees favored the use of
 as much data as possible, the 1987 draft
 Guidelines were not chosen because  of
 the severe drawback of not having
 statistically derived factors.
  -EPA considers the Tier H
 methodology proposed as part of the.
 Great Lakes Guidance to be an.
 improvement over the basic concepts
 within Michigan's:"Rule 57" and the '
 1987- draft Guidelines. For the method
 proposed, elements of Michigan "Rule
 57" and the 1987 draft Guidelines were
 expanded upon and components of
 studies described by Host, et al. (199.1) •
 in the draft paper, "Analysis of Acute  .
 and Chronic Data for Aquatic Life,"
 were utilized. These documents are
 available in the administrative record-
 for this rulemaking.
   The Tier n methodology uses factors
 obtained in .the statistical analysis
 described by Host, et al: (1991) to derive
 Tier 31 values from data for one to seven
 of the requisite eight taxonomic families
 necessary for Tier I calculations.
 Depending upon the number of Tier I
minimum data requirements satisfied in
the database, different adjustment
factors are .applied to the lowest Genus
Mean Acute Value to arrive at the :
Secondary Acute Value (SAV). These
adjustment factors are intended to relate
the results of one to seven toxicity tests
toaFAV.    . •'  '•:-••   -  ,. ;  .     ,.
  In its December 16,1992 report to    :
EPA, "Evaluation of the Guidance for
the Great Lakes Water Quality
Initiative," EPA's Science Advisory
Board (SAB) stated that it agreed with
the concept of Tier I and Tier H criteria
but was concerned that the minimal
data base currently required in Tier 2
water quality criterion—a single aquatic
toxicity test—is inadequate. (See section
I.F of this preamble for further
discussion of the SAB report.) States
and Tribes sometimes need to regulate
discharges, however, when a full
complement of aquatic toxicity data (as '
specified in the Tier I method) is not
available for a particular pollutant. The
method proposed provides a consistent .
mechanism jEor the Great Lakes States to
regulate those pollutants with little data.
Although a Tier H value may be      -;
developed using a single aquatic
toxicity test, EPA believes that few.'if
any, Tier H values, based on a  single
data point, would be derived for use in.
control mechanisms. The methodology ,
requires States and Tribes to use. as
many acceptable.data as exist. The State
or Tribe could not arbitrarily choose a" _ = .
single aquatic toxicity test to.derive a
Tier n value if other data exist. The  ,
approach proposed requires the
maximum amount of .quality
information to be utilized before any.  .
Tier II value can be derived. Moreover,
EPA believes that information from one
aquatic toxicity test, if properly
conducted pursuant to the methods
described in this Guidance; is  sufficient
to form the basis for a Tier n value to
prevent interference with designated
uses. EPA invites comment on whether
the minimum data base required for Tier
H aquatic life criteria is adequate.
 -" The Science Advisory Board also
suggested use of short term chronic
toxicity tests to derive a Tier n valued
overcoming the cost :of completing
standard chronic toxicity tests. EPA
invites comment ori whether it is
appropriate to utilize short term chronic
tests to derive Tier n values.
  In its report the SAB also stated that
there were some new fairly inexpensive
short cut methods with some plants,
invertebrates, and fishes which offer
many advantages over acute data with
extrapolations to chronic effects of other
species. The SAB report gave no
suggestions on specific methods. EPA
could not evaluate this suggestion
 without further guidance on which
 methods the SAB specifically       ,
 recommends. EPA invites comment on
 whether shortcut toxicity methods
 should be utilized to derive Tier H
 values and specifically asks for ,
 recommendations on specific methods.
   The SAB did specifically recommend
 that the Mayer method of the "infinite
 LC Zero" should be considered as'an
 alternative when there is only a single
 '. acute toxicity test for a given pollutant.
 This method, "Statistical Approach to-..
 Predicting Chronic Toxicity of
 Chemicals to Fishes from Acute
 Toxicity Test Data," is an approach to
 predicting chronic toxicity from acute -
 toxicity data. Simultaneous
 , consideration is given to concentration,
 degree of response, and time course of
 effect from an acute toxicity test. The   .
 method utilizes a consistent endpoint
 (lethality).and degree of response (zero
 percent) to predict chronic lethality
 from acute toxicity tests. The method
• assumes that concentration-response is
 a continuum in times and the mode of
 action for lethality is similar under v
 acute and chronic exposures. The
 method can predict growth effects from
 chronic lethality but is not intended to -
 predict chronic reproductive effects.
 The literature supporting the method is
 available in the administrative record  "
 for.this rulemaking. The corresponding'
 software (PB 92-503119) and the   -
 supporting literature (PB 92-169655)
 may also be obtained through the   ,
 National Technical Information Service
 (NTIS). EPA requests comment on the
 use of this method to develop chronic
 Tier n values and'invites comment on
 alternative toxicity methods, to obtain
 data, for use in the Tier n methodology.
   The "Analysis of Acute and Chronic
 Data for Aquatic Life," Host, et-al, 1991
 leport presented several options for
 statistically developing adjustment
 factors using data from National criteria
 documents,. In the proposed Guidance :
 only one of those options is utilized.
 EPA solicits comment on the option
 chosen as well as the other options  :  .
 described in Host et al. For example,.
 : with the assumption of an 80th percent
 probability, these adjustment-factors,
 range from 242, when data from only
 one taxonomic family exists, to 7.2,
 ' when seven of the Tier I minimum data
 requirements are satisfied. These
 adjustment factors may be found in
 Host, et al, and its supporting    . -••-•. '
 documentation. "Analysis of Acute and
 Chronic Data for Aquatic Life" is
 available in the administrative record
 for this rulemaking. If a further
 restriction is made that one of the
 genera represented must be either
 "Ceriodaphniasp", "Daphnia sp" or

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Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
"Simocephalus sp" the adjustment
factors, assuming an 80 percent
probability, range from 20.5, for one
taxonomic family, to 3.6 where data for
                      seven taxonomic families exist. Table
                      in-3 lists the adjustment factors which
                      result when different percentiles are
                      assumed.
                                          TABLE III-3.—Adjustment Factors
                                                [With Daphnid Required]
Sample Size
50 	 ,„ 	 	 	
80 	 	 	 	 	 	
85 	 „ 	 	 	 	 	 	 	 	
Percentile
1
4.9
20.5
93.5
2
3.2
13.2
57.8
3
2.6
8.6
50.5
4
2.4
6.5
41.8
5
2.2
5.0
31.0
6
2.0
4.0
22.Q
7
1.9
3.6
13.1
  For the proposed Tier n approach, the
Initiative Committees chose to use
adjustment factors which required data
for one of the three daphnid genera
named above and also chose to use the
80th perccntile. EPA is proposing to
require the use of data from daphnids
because they appear to be the most
sensitive species for many pollutants of
concern. The proposed choice of the
80th percentife by the Great Lakes Water
Quality Initiative Steering Committee
was a policy decision. It meant that 80
percent of the time, the calculated Tier
II acute values would be at least as
restrictive as a Tier IFAV if the
minimum data requirements for a Tier
I calculation were satisfied. The
Steering Committee made the judgment
that the adjustment factors associated
with the 80th percentile were
appropriate from a statistical and
technical standpoint. EPA is unaware of
information or data which would*
indicate that this judgment is
unreasonable. EPA invites comment on
the selection of an 80th percentile in
establishing adjustment factors.
Additionally, EPA invites comment on
the usa of factors "with daphnid data"
as opposed to the higher adjustment
factors that would be necessary if data
for the specified daphnids are not
required,
  A separate statistical analysis, within
"Analysis of Acute and Chronic Data for
Aquatic Lifa" (Host, et al., 1991), was
used to derive a default ACR of 18.
When fewer than three experimentally-
dcrivcd ACRs exist, enough assumed
ACRs of 18 would be used  so that the
total of the ACRs equals three. This
acute-chronic ratio of 18 is also based
on an 80th percentile to correspond
with the adjustment factors chosen to
derive the SAV. EPA requests comment
on the use of assumed ACRs in place of
experimentally derived ACRs, and
particularly on the use of 18 as the
default ACR.
                        The Tier n methodology proposed
                      employs all appropriate toxicity data
                      available for a pollutant, uses
                      statistically derived adjustment factors
                      based on existing National criteria, and
                      produces values which are generally
                      conservative relative to a comparable
                      Tier I criterion. Sample calculations of
                      Tier n values are available in the
                      administrative record for this
                      rulemaking. EPA invites comment on
                      acceptable alternatives to a tiered
                      approach. EPA also invites comments
                      on the approach proposed as well as
                      alternatives.
                      D. Conformance to the Clean Water Act,
                      Great Lakes Water Quality Agreement
                      and Great Lakes Critical Programs Act
                      0/1990
                        Section 118(c) of the Clean Water Act
                      requires EPA to develop, inter alia,
                      guidance on minimum water quality
                      limits to protect human health, aquatic
                      life and wildlife in the Great Lakes
                      System. The CPA states that the
                      proposed Guidance shall be no less
                      restrictive than the provisions of the
                      Clean Water Act, National water quality
                      criteria and National guidance, and
                      shall conform with the objectives and
                      provisions of the Great Lakes Water
                      Quality Agreement.
                      1. Tier I Aquatic Life Criteria and
                      Methodology
                        a. Comparison With the Clean Water
                      Act. Section 304(a)(l) of the CWA
                      authorizes EPA to develop and publish
                      criteria for water quality accurately
                      reflecting the latest scientific knowledge
                      on the kind and extent of all identifiable
                      effects  on, among other things, health
                      and welfare, including plankton, fish,
                      and shellfish, which may be expected   .
                      from the presence of pollutants in any
                      body of water, 33 U.S.C. 1314(a)(l).
                      Under this authority, EPA developed
                      provisions for deriving water quality
                      criteria for waterbodies nationwide.
                      These provisions are contained in the
                      1985 "Guidelines for Deriving
'Numerical National Water Quality
 Criteria for the Protection of Aquatic
 Organisms and Their Uses." The
 proposed Guidance on Tier I aquatic life
 criteria methodology, as well as the
 criteria proposed thereunder, are based
. on and are consistent with the 1985
 National Guidelines. EPA believes that,
 although they are not identical to the
 1985 Guidelines and individual
 National criteria in all details,  they are
 generally no less restrictive.
   First, as discussed above in this
 section of the preamble, EPA has not
 proposed Tier I aquatic life criteria for
 eleven pollutants for which National
 criteria exist (aldrin, chlordane, DDT,
 endosulfan, heptachlor, PCBs, lead,
 toxaphene, aluminum, silver and
 chlorpyrifos). EPA is also proposing to
 require as part of the Great Lakes
 Guidance only an acute criterion for
 lindane, although there are National
 criteria for both acute and chronic
 effects. EPA believes that these
 decisions, however, will not result in
 less stringent control of these pollutants.
 Under the implementation scheme
 proposed, Great Lakes States and Tribes
 would be required to derive values for
 these pollutants using the Tier II
 method whenever the State or Tribe
 determines that it is necessary to control
 any of these pollutants. The State or  ..  -
 Tribe would have to compare the Tier
 II value to any existing State criteria for
 the same pollutant. If the Tier n value
 is more stringent, the Tier II value
 would supersede the existing criterion
 and the Tier II value would be used to  •
 derive permit limits and other control
" mechanisms. (If the existing criteria is
 more stringent, the State or Tribe would
 have the option of using either number.)
 As described elsewhere in this
 preamble, the Tier II method derives
 conservative values to compensate for a
 limited data base. Consequently, EPA ,
 expects that Tier n values will be more
 stringent than existing standards for .

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federal Register / Vo1-
                                                        ^Friday.  April 16; 1993 ^Proposed Rules       ':]- 20857
  these pollutants in eighty percent of all
  cases.  ""• ";••   ',' :  -", . ; -  ' "' '    . •/
    Furthermore, dl but four of Tier I   ,
  criteria for aquatic life proposed are
  equivalent to or more restrictive than
  the current National criteria. EPA
  believes that the proposed Tier I criteria
  for cadmium, chromium IE and izinc are
  not significantly less restrictive than the
  existing National criteria ^because the
  differences between these proposed.  .
  criteria and the National criteria are
  minor. Furthermore, EPA believes that
  the proposed criteria are more
  appropriate because they are based on
': more recent data. EPA, however,
  requests comment on the option of
  promulgating the National criteria for
 • those pollutants which have more
  stringent National criteria values.
    The difference between the proposed
  criterion and current National criteria
  for protection against the chronic effects
  of mercury is considerably larger.
  Nonetheless, EPA believes that, overall
  protection will not be reduced. The
  chronic aquatic life criterion for
  mercury became less restrictive than the
  current National criterion when EPA
  eliminated all consideration of Final
  Residue Values data from the
  calculation of the criterion. As '
  explained earlier, EPA is proposing to
  delete Residue Values from'all aquatic
  life criteria for the Great Lakes 'because
  it is proposing separate; specific wildlife
  criteria in the proposed Guidance. EPA
  is proposing a wildlife criterion for
  mercury of 180 |ig/L (or 0.00018 ng/L)
  that is more restrictive than the National
  chronic aquatic life criterion for
  mercury (0.012 ug/L). Since both the ,
  aquatic life and the wildlife criteria will
 ; apply in all portions of the Great Lakes
  basin, EPA believes that protection will
  be maintained.      '-...•-
    b. Conformance With the Great Lakes
  Water Quality Agreement. A comparison
. of the Tier I criteria proposed herein
  with the pollutants for which the  ,
  Agreement specifies a numeric standard
  for a specified pollutant/parameter   .
  reveals that, in all but'a few cases, the
  Agreement's standards are more  .'.'•:
  conservative. EPA nevertheless believes
  that the numeric criteria in the proposed
 Guidance", as well as the methodology
. upon which they were derived, conform
 with the provisions "and objectives of the
 Agreement This position is based on
 the fact that the current Agreement, hi
 EPA's opinion, needs revision. The
 current criteria in the Agreement,
 created in 1978 as "interim" numbers,
 were for the most part a result of
 negotiation. EPA has not been able to
 find any record revealing then: technical
 or policy bases. Further, EPA believes
 that the standards on the Agreement
                     , were not developed in consultation with
                      the States or Tribes. The numeric
                      criteria in the proposed Guidance are
                      based on sound scientific criteria
                      development methodology and are :
                      proposed after consultation with the
                      States, as required by the Supplement to
                      Annex I to the Agreement's Specific
                      Objectives,   v                '
                        EPA also believes that Congress did
                      not intend to compel EPA to replicate
                      the pollutant concentrations for the
                      protection of aquatic life set out in
                      Annex 1 to the Agreement, Section
                      li8(c)(2)(A> of the CWA directs EPA to
                      develop numeric limits on pollutants in
                      the Great Lakes-waters, but leaves the
                      selection of the limits to EPA's
                      discretion. EPA believes that Congress
                      would have been very explicit if it had
                      intended to deprive EPA of the
                      authority to exercise its own judgment
                      on the technical and scientific issues
                      involved. Moreover, the legislative
                      history shows that Congress knew and
                      approved of the ongoing work of the
                      Great Lakes Initiative Committees. S.
                      Rep. 101-339,101st Cong., 2dSess. at,
                      18 Gune 27,1990); 136 Cong. Rec.
                      S15616 (Oct. 17,1990) (remarks
                      prominently on the committees' work, it
                      is reasonable to assume that Congress
                      expected EPA to develop its own
                      criteria). Consequently, EPA does not
                      believe that "conformance" with the -.-''
                      Agreement requires the numeric criteria
                      proposed to be identical to or no less
                      restrictive than individual Annex 1
                     values. Rather, EPA.'s guidance must
                      conform with the more general
                      objectives of the Agreement regarding,
                     the elimination or reduction to the
                     maximum extent practicable discharges
                     into the Great Lakes System. The criteria
                     and methodologies proposed in the
                     proposed Guidance conform with this ,
                     objective. Further, as explained above,
                     EPACannot evaluate the technical basis
                     for the Agreement's standards. EPA
                     reasonably prefers to propose standards
                     which are supported by extensive *
                     record.      ~            •";-"-.
                       EPA believes that the position taken
                     by the Initiative Committees to the
                     Guidance criteria and methodologies
                     proposed herein could serve as a basis
                     to amend and supplement the Great
                     Lakes Water Quality Agreement is
                     reasonable. Besides being consistent
                     with the terms of the Agreement, which
                     require the United States to, after
                     consultation with the States, revise and
                     supplement the Specific Objectives
                     included therein, it is also consistent
                     with the intent of the CPA.
                       2. Tier H Criteria Methodology     ;
                       a. Comparison With the Clean Water
                     Act. EPA's current guidance arid
                     regulations for water quality standards
  contain nothing directly analogous to  "
  the Tier U methodology and values
  proposed for aquatic life. Rather, under
  the existing program many States and
  -tribes interpret narrative criteria on a
  case-by-case basis to ensure that
  discharges of pollutants that lack    ';
 , numeric criteria will not adversely
  affect human health or, the environment.
  Other States and Tribes develop their
  own numeric criteria based on methods
  requiring less data than the existing
  National criteria guidance requires. The
  Tier n methodology and values  •-:•;--•'
  proposed would not be-less restrictive'
  than this existing approach. In the first
  place, EPA expects that eighty percent
  of the Tier fl values that the States and
 . Tribes derive will be more restrictive
  than the State and Tribal standards that
  EPA could approve  for the sarnie
  pollutants under the current CWA
 .program because the adjustment factor
 'incorporated into the Tier n approach,
  as proposed, imposes more structure on
  the process of translating narrative  . v •• ..
  criteria into numeric values. States and
  Tribes currently have very broacL  ,
  discretion when regulating pollutants   '
  that are subject only to narrative criteria
  The proposed Guidance is more
  rigorous than the current National
: requirements in this area. Finally, the
. proposed approach' will result in more.'.
  uniform control of pollutants lacking
 NatipnaFcriteria in the Great Lakes
 States and Tribes.                     .
   b. Conformance With the Great Lakes
  Water Quality Agreement. Tierllisa
 conservative methodology designed to.
^establish-environmentally protective
 limits on the discharge of pollutants
 into the Great Lakes  System. The
 methodology will result in the        •
 regulation of the discharge of .certain
 pollutants which heretofore in certain
 Great Lakes States may have gone
 unregulated by a specific numeric
 criteria, instead being regulated by
 narrative criteria or by indicator
 pollutants such as biological oxygen
 demand (BOD). The Tier H methodology
 is-consisterit with the .purpose of the
Agreement, "to eliminate or reduce to
the maximum extent practicable the
 discharge of toxic substance in toxic  -
-amounts" and serves as a translator
mechanism of the Agreement's narrative
standards found in the General   ,
Objectives, Section D, Article HI. The
Tier n methodology will enhance
regulatory efforts in the Great Lakes
basin, will serve its purpose of
promoting consistency in the-regulation  "
of toxics in the Great Lakes basin, and
is .therefore also in conformance with, -  .
the Agreement.  •'    :  '         ,.. " •- •'•'•,

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Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
IV. Bioaccumulation Factors
A. Introduction
  Aquatic organisms, exposed to certain
typos of chemicals, will accumulate
those chemicals in their bodies.
Chemical uptake is due to exposure
from tho water the organisms live in, the
food they eat, and other sources of the
chemical. This process is called
bioaccumulation. For certain chemicals,
uptake through the food chain is the
most important route of exposure. As
lower trophic level organisms are
consumed by higher trophic level
organisms, the tissue concentrations of
those chemicals may increase with each
trophic level so that residues in top
carnivores may be many orders of
magnitude greater than the
concentration of the chemical in the
environment While the exposure
concentration In the environment may
be too low to affect the lowest level
organisms, this biomagnification
process can result in severe health
effects for the consumers of top trophic
level aquatic organisms.
  For the purpose of the Great Lakes
Guidance, bioaccumulation factors have
bean developed to reflect the propensity
of an organism to accumulate a
chemical in its tissues, when exposure
to the chemical is from all sources
including food and water.
Bioaccumulation factors serve several
purposes in the Guidance.
  First, in order to properly account for
potential exposure to a chemical,  both
the wildlife criteria and the human
health criteria have been developed to '
be a function of the bioaccumulation
factor. That is, for example, all else
being equal, if two chemicals have
different bioaccumulation factors, the
chemical with the higher
bioaccumulation factor will have  the
lower criterion. Thus, prior to deriving
a human health or a wildlife criterion,
a bioaccumulation factor for the
chemical must be established.
  Secondly, within the Great Lakes
System both wildlife and humans may
bo susceptible to adverse health effects
from chemicals which are highly
bloaccumulative. While not the only
indicator of a chemical's potential harm,
the bioaccumulation factors are believed
to be an indication of which chemicals
may be of greatest concern within the
Great Lakes System. Thus, the human
health bioaccumulation factors have
been used to identify a list of chemicals
which warrant increased attention, and
more stringent controls, within the
basin. In this Great Lakes Water Quality
Initiative (GLWQI), these chemicals are
called the Bioaccumulative Chemicals
                      of Concern (BCCs). See Discussion of
                      BCCs in section H.G above.
                      B'. Bioaccumulation Factors
                        The proposed Great Lakes Guidance
                      methodology for developing
                      bioaccumulation factors (BAFs) is
                      discussed below. The proposed
                      Guidance on bioaccumulation is
                      compared to existing National guidance
                      and practices, and differences are
                      discussed. Throughout the discussion,
                      issues for which EPA specifically
                      invites comment are highlighted.
                        The procedure for developing the
                      bioaccumulation factors is included in
                      appendix B of part 132 of the proposed
                      Guidance. Great Lakes Water Quality
                      Initiative Technical Support
                      Documents, which further discuss the
                      basis for the proposed Guidance and
                      which provide the data and
                      considerations upon.which the BAFs
                      are based, are identified below and are
                      available in the administrative record
                      for this rulemaking. Copies are also
                      available upon written request to the
                      person listed in section XHI of this
                      preamble.               ,
                        Finally, EPA's expectations for
                      determining whether a State's water
                      quality standards are consistent with the
                      Guidance are set forth in § 132.6 of the
                      proposed Guidance and discussed in
                      section E.I of this preamble.
                      1. Bioaccumulation and
                      Bioconcentration Concepts
                        Bioaccumulation refers to the uptake
                      and retention of a substance by an
                      aquatic organism from its surrounding
                      medium and food. A bioaccumulation
                      factor (BAF) represents the ratio (in L/
                      kg) of a substance's concentration in
                      tissue to its concentration in the
                      surrounding water in situations where
                      both the organism and its food are
                      exposed and the ratio does not change
                      substantially over time. Field measured
                      BAFs are based on field data.
                        A steady-state bioconcentration factor
                      (BCF) is the uptake and retention of a
                      substance by an aquatic organism from
                      the surrounding water only, through gill
                      membranes or other external body
                      surfaces. Laboratory measured BCFs are
                      the result of laboratory experiments
                      using aquatic organisms. In this
                      preamble, methodology, and  Technical
                      Support Document, wherever the term
                      BCF is used, steady state is implied.

                      2. Existing EPA Guidance
                        EPA, in developing criteria to .protect
                      humans and wildlife from the
                      consumption of contaminated aquatic  ,
                      organisms, has relied upon the BCF and
                      occasionally BAF to relate water,  ;
                      concentrations to the amount of a
contaminant that is ingested. The BAF
is ideally the best factor to use because
it accounts for the uptake by aquatic
organisms of a chemical from all sources
including diet, sediments, and the water
itself. However, EPA has also
recognized the difficulties in deriving
scientifically valid BAFs. BAFs are a
scientific area which is still evolving.
This is exemplified by EPA's past and
current guidance. For example, EPA's
1985 "Guidelines for Deriving
Numerical National Water Quality
Criteria for the Protection of Aquatic
Organisms and Their Uses" (1985
National Guidelines), states:
* * * although BCFs are not too difficult to
determine, very few BAFs have been
measured acceptably, because it is necessary
to make enough measurements of the
concentration of the material in the water to
show that it was reasonably constant over a
long period of time, over the range of
territory inhabited by the organisms.
  This document is available in the
administrative record for this
rulemaking. Copies are also available
upon written request to the person
listed in section XIII of this.preamble.
  Because of the difficulty in deriving
BAFs, most of the existing human
health and aquatic life National criteria
are based upon BCFs. BAFs reported in
the scientific literature need to be
carefully evaluated to ensure that they
adhere to the criteria of acceptability
outlined in EPA's 1985 National
Guidelines methodology.
  Bioconcentration factors are
determined either by measuring
bioconcentration in laboratory tests
(comparing fish tissue residues to
chemical considerations in test waters),
or by predicting the BCF from a
chemical's octanol-water partition
coefficient (Kow or P). The log of the
octanol-water partition coefficient (log
Kow or log P) has been shown in the
scientific literature to be empirically  '
related to the bioconcentration factors
(e.g. Mackay, 1982; Connell, 1988; Veith
et al., 1979).
  In 1980, EPA issued its "Guidelines
and Methodology Used in the
Preparation of Health Effects  ,
Assessment Chapters  of the Consent
Decree Water Criteria Documents"  (45
FR 79341, November 28,1980). These
guidelines serve as the basis for nearly
all of the current National human health
criteria. In these guidelines, the
following equation (Equation 1) is,used
to predict BCFs for organic chemicals in
the absence of laboratory measured
BCFs (Veith et al, 1979).
  Equation 1:

  log BCF = 0.85 log Kow ^-0.70

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Federal
                                   / Vol. 58, No. 72 I Friday, April 16, 1993- /Proposed Rules
                                                                                         20859
    More recently, in 1991, EPA issued
  the final "Technical Support Document,
  for Water Quality-based Toxics Control"
  (EPA 505/2-90-001) and a. draft
  document entitled "Assessment and
  Control of Bioconcehtratable    ,;,',:
  Contaminants in Surface Waters" for,  ,
  notice and comment (56 FR13150),
  which are available in the       ,
  administrative record for this ;•   •  .-•
 . rulemaking. These documents, relying
  on additional research into this
  relationship between BCF and log Kow,
  recommend that a slightly different
  equation (Equation 2) be used to derive
  BCFs hi the absence of laboratory
  measured BCFs^Veith and Kosian,
  1983).       ,
   • Equation 2:   '           ,

   log BCF = 0.79 log Kovv-0.40

    This equation is used to estimate' •. "
  BCFs in EPA's computerized
  Quantitative Structure Activity
  Relationships (QSAR) database, and is
  also the equation proposed for use in
-  the proposed Guidance.    • •>     .
    EPA's 1991 National guidance
  documents, the Technical Support
  Document for Water Quality-based
  Toxics Control" and draft "Assessment
  and Control of Bioconcentratable    •
  Contaminants in Surface Waters",
  recommend a methodology for
  estimating the BAF where there is an
  absence of a field-measured BAF. This
  methodology multiplies the BCF by a
  factor which accounts for the
  biomagnification of a pollutant through
  trophic levels in a food chain. As larger
  predatery aquatic organisms, such as
  pike, consume other fish and aquatic
  organisms, the amount of Ibiaa  ,
  contaminants in the. consumed fish is
  concentratedin the predator. The factor .
  which accounts for this
  biomagnification through the food chain
  is called the food chain multiplier
  (FCM) in these  1991 National guidance
  documents. EPA calculated the FCMs
  using a model of the step-w&j"increase
  in the concentration of an organic
  chemical from phytoplankton (trophic
 . level 1) through the top predatory fish  *
  level of a food chain (Thoinana, 1989).
    The FCMs were determjned by first
  running Thomann's modsy to generate
  BCFs and BAFs for trophic level 2, and
  BAFs for trophic levels 3 aud 4. This
  was done for a range of logKow values'
  from 3.5 to 6.5, at interval|pf a tenth of
  log KOW value. Second, thejCMs for
  each log Kow value in this rauga Were
  calculated using the following      ,,
  equations:             J  *. ;
    For trophic level 2
                         ,          .      BCF2    -
                        For trophic level 3 (small fish):
                                         BCF2
                        For trophic level 4 (top predator fish):
                                FCM =
                                        BAF4
                                        BCF2
                        Where: ••--•-.••          :
                        BCF2 is the BCF for trophic level 2
                      organisms, and BAF2, BAF3 and BAF4
                      are the BAFs for trophic levels 2,3, and
                      4, respectively,.
                        The resulting FCMs for trophic levels
                      2,3, and 4 are shown in Table B-l of
                     . appendix.B of part 132 for log KOW
                      values ranging from four to 6.5.   '
                        Thomann (1989) compared predicted
                      BAFs for trophic level 4 with measured
                      BAFs from the Great .Lakes and      ;.
                      concluded that, within an order of
                      magnitude, the model-predicted BAFs
                      were a reasonable representation of the
                      observed data for chemicals with log
                      Kow values in the range of 3.5 to 6.5.
                       At log KOW values of 6.5 arid greater,
                      the relationship between log KQW and
                      the FCM is less certain,  for reasons
                      described hi section IV.B.3.c'of the   ....'-.
                      preamble. Existing EPA guidance
                      recognizes that FCMs may range from
                      0.1 to 100 for such chemicals, and
                      provides that a FCM of iOO could be  '.'.-
                      used as a conservative standard value in
                      the absence of chemical-specific BAF
                     , information.
                       EPA evaluated its own BAF
                      prediction procedure using field      .
                      studies, as reported in appendix I of the
                      draft "Assessment and Control of
                      Bioconcentratable Contaminants in    •
                      Surface Waters"'guidance document. In
                      these field studies, residues in receiving
                      water organisms were predicted using
                     :EPA's BAF prediction procedure and
                      Were then compared to the measured
                      tissue residues. These studies
                      demonstrated acceptable agreement
                      between measured and predicted tissue
                      residues which, therefore, demonstrated
                      that EPA's BAF prediction procedure
                      provides acceptable BAF values. The
                     results.of this EPA evaluation are    '
                     presented in detail in two EPA field
                     studies (Burkhard et. al. 1991,1992),
                     which are available in the/
                     administrative record for this        >
                     rulemaking.                -
                     3,The Great Lakes Guidance for BAFs
                     The bioaccumulation concepts
                     contained in the proposed Guidance,
                     data supporting these concepts,  and
                     additional details are also discussed in
                     the GLWQI Bioaccumulation Factors
  Technical Support Document, which is
  available in the administrative record
  for this rulemaking. Proposed
•-..§ 132.4(a)(3) requires the use. of the BAF
  methodology in appendix B of part 132
  in the derivation of criteria for
  protecting humans and wildlife; EPA
  believes that the BAF is the best
.  predictor of the concentration of a
  chemicd within fish tissue m the Great
  Lakes because it hicludes conisideration
  of the uptake of contaminants from
  food, sediments, and the water itself;  •
  and is, therefore, the most appropriate
  factor for the developing criteria. In the
  past, EPA has rarely used the BAF to
  develop criteria due to the lack of
  reliable field data.  However, EPA now
  believes thatthe BAF can be
  approximated from BCF data and
  information concerning .
.  biomagnification through the food
  chain;         '   -  ; :            ' ;.'
  - a. Measured and Predicted BAFs. The
  proposed Guidance lists three methods:,
 to derive BAFs for  non-polar organics, '•'
. listed belowin order of preference: A
 BAF measured hi the field, preferably in
 fish collected from the Great Lakes
 which are at the top of ttie food chain;
 a BAF predicted by-multiplying a'BCF
 measured hi the laboratory,  preferably
  (but not required) on a fish species
 indigenous to the Great Lakes, by the-,
 food chain multiplier; and a BAF
 predicted by multiplying a BCEr
 calculated from the log  KOW (using
 Equation 2) by the food chain
 multiplier.                    -  "'-
,'••• Measured BCFs for organics can be
 determined in several ways. These   '
 include analytical measurements 6f
 tissuelad"water using gas  "       .-•'•
 chromatography (GC) or high pressure
 liquid chromatography  (HPLC). Another '
 method for determining a laboratory-
 measured BCF is to use  radio labeled
 organic chemicals.  However, the radio  •-
labeled compound  leaves open a
possibility of error in several areas. In
radio labeliag, the organism may
metabohzft a.metabohte of the parent
compound thereby  inflating  the
measuredBCF. There is also a
possibility of contammation of the
labeled compoimd.     '  ,     '
   For inorganic chemicals, either a
measured BAF or BCF must  be used.
This is because no method is available
for reliably predicting BCFs  or BAFs for
inorganic chemicals; BCFs and BAFs
vary from one invertebrate.tp another, ;
from one fish to another, and from one
tissue to'another within a species. As •
.reported in the "GLWQI       ,   xT
Bioaccumulation Factors Technical
Support Document", which is available
hi the administrative record  for this

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20860         Federal Register / Vol. 58, No. 72 / Friday, April 16,  1993 / Proposed Rules
rulemaking, accumulation of inorganics
varies significantly between species and
types of tissues.
  EPA Invites comment on: How to
predict a BCF from log P; the acceptable
methods for measuring BCFs with radio
labeled organic compounds which
could inflate the measured BCF, as
opposed to BCFs more conventionally
measured using gas chromatography or
HPLC; whether a BCF is preferable to
measured or predicted BAFs as
proposed; the derivation of BAFs for
inorganic chemicals such as mercury
and selenium; and the GLWQI methods
for developing a value for a BAF and the
preferred order. In addition, in its
December 16,1992 report, "Evaluation
of the Guidance for the Great Lakes
Water Quality Initiative," EPA's Science
Advisory Board (SAB) stated that:
  Field BAFS must be interpreted very
carefully, end it should be recognized that
(hey may contain substantial errors and
variability dua  to the following reasons: (1)
Analytical methodologies generally
dolerrnino total concentrations all of which
may not bo biologically available; (2) There
may bo a loss of analyte by sorption or
evaporation during sampling; (3) Incomplete
extractions may occur, especially if there is
• high organic carbon content in the water,
(4) Temporal and spatial variability in water
concentrations; (5) Variability in fish
concentrations duo to size, age, sex, etc.
EPA agrees that these are valid
considerations for selection of field-
measured BAFs and invites comment on
whether appendix B of part 132 should
provide more guidance on the quality of
acceptable data, and what additional
factors should be reviewed for
acceptability  of data.
   b. Standard Lipid Values. Consistent
with the existing National guidance, the
proposed Guidance relies on the
fundamental  assumption that an
organism's ability to bioaccumulate
organic chemicals is proportional to its
lipld content. For example, an organism
with a two percent lipid content would
accumulate twice the amount of a
chemical as an organism with a one
percent lipid content, all else being
equal.
  In order to  determine a BAF for
organic chemicals, for use in deriving
wildlife and human health criteria, it is
necessary to know the percent lipid
content of the organisms being
consumed. The proposed Guidance
proposes that standard lipid values
higher than the three percent
recommended for human health in
EPA's 1991 "Technical Support
Document for Water Quality-based
Toxics Control" be used to represent the
percent lipid content of the fish and
other aquatic organisms consumed by
humans and wildlife in the Great Lakes
basin. Fish consumption patterns differ
widely around the United States, and
this is especially true in the Great Lakes
basin. Humans also typically eat fish
fillets which generally have lower lipid
content than the whole fish generally
consumed by wildlife. Therefore,
standard lipid values have been
developed separately for humans (5.0
percent) and for wildlife (7.9 percent).
The rationale behind the selection of
these standard lipid values for humans
and wildlife is discussed below.
  i. Standard Lipid Value for Human
Health BAFs. The proposed Guidance
proposes a standard lipid value of 5.0
percent in edible tissue fof use in
determining human health BAFs for
organic chemicals. Percent lipid data for
edible tissue (mostly skin-on fillets)   *
were gathered from the fish contaminant
monitoring programs in Michigan,
Wisconsin, phio, Indiana, New York  ,
and Minnesota. These data are
summarized in the BAF Technical
Support Document. Lipid values for
skin-on fillets are likely to be higher
than lipid values for skinless fillets.
Skin-on fillets typically include a layer
of fatty tissue between the skin and
muscle. The skin-on fillet is the tissue
sample used by most of the Great Lake
States' fish consumption advisory
programs, and, therefore, the bulk of
available data are for skin-on fillets.
However, many anglers remove the skin
and other fatty tissue when they prepare
their fish for cooking. Consumption
advisories recommend this practice.
Therefore, use of skin-on data to
determine the standard lipid values will
provide an extra margin  of safety to the
many anglers who remove the skin from
the fillet.
  In selecting the standard lipid value
for human health BAFs,  the Technical
Work Group considered  lipid data for
the following fish groups: Lipid data for
salmonids (trout and salmon) only; lipid
data for salmonids and non-salmonid
game fish (perch, walleye, bass, etc.);
and lipid data for all fish (game and
nongame species).
  Mean lipid values and standard
deviations for each of the options are:
6.73±3.27 for salmonids; 5.02±3.55 for
all game fish; and 5.25±3.68 for all fish.
The Technical Work Group proposed to
use the value for all game fish of 5.02
because this option best represented the
range of species typically consumed by
people in the Great Lakes basin.
  The Technical Work Group also
considered mean lipid values weighted
by human consumption  patterns, and
the typical weight of sport-caught game
fish by species. Consumption was
addressed through creel survey data
 from the Great Lakes, and typical
 species weights from the State
 contaminant programs. The resulting
 overall consumption weighted mean for
 all game fish was 4.72 ± 2.42 percent
 lipid. Because these results were not
 different statistically from the means of
 the unweighted data, the Initiative Work
 Group proposed to use the unweighted
 mean value of 5.02 percent for the
 human health BAFs.
   ii. Standard Lipid Value for Wildlife
 BAFs. The proposed Guidance proposes
 a standard lipid value of 7,9 percent for
 wildlife BAFs, based on consumption of
 whole fish. The standard lipid value for
 the wildlife BAFs was dgte.rmined using
 whole fish lipid data from the U.S. Fish
 and Wildlife Service National
 Contaminant Biomonitoring Program
 and the Canadian Department of
 Fisheries and Oceans. These data are
 summarized in appendix B of the BAF
 Technical Support Document.The 7.9
 percent lipid value is the mean of lipid
 .values for all fish, game and nongame,
 in all of the Great Lakes. Data for all fish
 were used because wildlife typically are
 nondiscriminatory consumers of fish.
   iii. Comments requested. EPA. invites
 comments  on the standard percent lipid
 values proposed in the proposed
 Guidance.  Specifically, comments
 should address whether the trophic '
 levels chosen to derive the human
 health and wildlife standard percent   '
 lipid values are appropriate, or the
 consumption-weighted human health
 value of 4.7, should be used in  lieu of
 the 5.0 percent lipid value currently
 proposed. In addition, to the extent that
 the currently proposed values of 5.0 and
 7.9 percent lipid overestimate mean
- lipid values of fish consumed by Great
 Lakes humans and wildlife, use of the
 values will provide a margin of safety.
 EPA specifically solicits comment on
 whether such a margin of safety is
 necessary.  The data on which die mean
 percent Upid values are based were
 obtained by measuring percent lipids
 using a variety of solvents. The value  of
 percent lipid obtained will depend to
 some extent on the solvent used. It has,
 been shown that the analytical method
 used to determine percent lipid can
 affect lipid values because different
 solvent systems extract different
 fractions of total lipids (Randall et al.,
 1991). EPA invites comment on what
 solvent should be used hi the
 measurement of percent lipids.
   c. Food Chain Multipliers. As
 discussed above, EPA proposes to use
 food chain multipliers (FCM), based on
 a biomagnification model, to derive
 BAFs for organic chemicals when field
 studies do not exist. Food chain
 multipliers derived from the model

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                  Federal Register /.. Vof. 58, NQ.  72 /Friday, April 16, 1993 /' Proposed Rules
                                                                      20861
  range from less than one to 100, Under
  the proposed Guidance, FCMs greater-
  than one would usually apply to organic
  chemicals with log IQ,W values in the
  range of 4.0 to 6.5. The ECMs which
  result from the Guidance proposed are
  listed in Table B-l of appendix B of part
 ' 132.  ,    - -   ,  •   / : ,   •'"..'    ,  -
    In the proposed Guidance, when
  BAFs for human health are derived from
  BCFs through the application of a FCM/
 ,_ the appropriate FCM based on the
  chemical's log KOW is selected from the
  trophic level 4_eolumn in Table B-l of
  appendix B of part 132. This assumes
 . that humans typically eat trophic level
  4 (top, carnivore) fish species. For
  wildlife BAFs, FCMs from trophic levels
  3 and 4 are used, and BAFs for
  invertebrates or aquatic plants may be
  used on a case-by-case basiftCseis
  Methodologies for the Development of
  Wildlife Criteria and Values in
, appendix D to part 132). "
  -  For chemicals with log KOW values
 .t greater than 6.5 (superlipopbilic
  chemicals), existing EPA guidance
  recommends FCMs in the range of 0.1
  to 100 due to the uncertainty of
  predicting bioaccumulation for this
  group of chemicals (U.S. EPA; 1991). For
  example, at the low end of this range,
  FCMs of 0.1 may be appropriate for
  some chemicals such as superlipophilic
  polycyclic aromatic hydrocarbons,
  These chemicals are metabolized
  rapidly by many fish, and not only is
  uptake through the food chain negated
  as a result, but rapid metaboltsni can
  result in bioaccumulation less tEan
  predicted using bioconcentration
  models such as Equation 2 (Mimi and
  Dookran, 1989).             -
    In contrast, at the high end of the -
  range, use of a FCM (at 5.0 percent
  lipid) of 100 provides a reasonable
 • estimate ofa measured BAF for ,
  octachlprostyrene (log K<>w=7.94). The
  mean of two measured BAFs (0.9 and,
  4.3 million) for this chemical is 1.9
  million (Oliver and Niimi, 1985; Oliver
  and Niimi, 1988). The predicted BAF
  based on measured BCF.S times a FCM
  of 100 is 6.6 million. The factor of 3,5
  difference between measured and
  predicted BAFs indicates a FCM of 100
 for this chemical is reasonable. The BAF
 for 2,3,7,8-TCDD of 50,000 (5.0 percent
 lipid) is an example 6f a superlipophilic
 chemical (log Kow=7.36) with a FCM of
 about one. .            :    "
   From the above examples,^ is clear
 that predicting the food chain
 biomagnificatipn of superlipophilic -
 chemicals is" difficult. For this reason,
 the proposed Guidance recommends
 that chemical-specific data be used to
 determine the ECM for this group of
 chemicals. However, if no chemical-
  specific data are available, the Steering
  Committee proposed a FCM of one for
  superlipophilic chemicals as a standard
  value.               '       •-"-•-"  •;- :
    EPA invites comment on: the basic
  premise that a BCF may, overestimate or
  underestimate a BAF; the
  appropriateness of FCMs based on the
  Thomann model; the appropriateness of
  using a FCM of one when chemical-
  specific values for superlipophilic
  chemicals are not available; and
  possible alternatives to the Thomann.
  model for predicting BAFs from BCFs.
    d. Effect of Metabolism on BAFs.
  Many organic chemicals that are taken
  up by aquatic organisms are transformed
  to some extent by the organism's
  metabolic processes, but the rate of '•"
  metabolism varies widely from one
  chemical to another! For most organic
  chemicals, metabolism increases the   '
  depuration rate and reduces the BAF.
 However, metabolism does not always
- result in a lower BAF. Because they are
 based on field measurements, measured
 BAFs automatically take into account
 any metabolism that occurs. Predicted
 BAFs that are obtained by multiplying
 a measured BCF by a FCM automatically
 take into account the'effect of
 metabolism on the BCF, but do not take
 into account the effect of metabolism  on
 the FCM. Predicted BAFs that are
 obtained by multiplying a predicted'
 BCF by a FCM make no allowance for
 metabolism*    -
•   Available information indicates that.
 some organic chemicals, such as
 polynuclear aromatic hydrocarbons
 (PAHs), are metabolized by aquatic
 organisms, but that the extent of that
 metabolism varies substantially from
 one PAH to another and from one
 species to another. The available
 information, accordingly, is not      .
 amenable to a general prediction of the
 effect of metabolism on the magnitude
 of the BCF, FCM, or BAF.'
   !F6r these reasons, the BAF
 methodology being proposed for organic
 chemicals includes a provision that
   Both human health and wildlife BAFs
 should be reviewed for consistency with all
 available data concerning the
bioaccumulation of the chemical. In
particular, information on metabolism,
molecular size, or other physicochemical
properties which might enhance or inhibit
bioaccumulation should be considered. The
BAFs may be modified if changes can be
justified by the data, (section VI.D.5 of
appendix B of part 132)

EPA expects States and Tribes to follow
this guidance on a site specific basis if
necessary in developing the BAFs used
for developing human health and
wildlife criteria and values.   ,
    One approach that might be usefully "
  .applied to individual organic chemicals
  for which a, measured BAF is not :  "
  available but for,which a measured BCF
  is available is as follows. If metabolism
  affects the BCF, the measured BCF will
  usually be lower than would be
  , predicted on the basis of log KOW. The
  relationship.between log KOW and BCF
  for non-metabolized chemicals can be
  used to back calculate an "effective log
  KOW" from the measured BCF. An
  "effective FCM" can then be based on
  the "effective log KoW." A predicted BAF
  that takes into account metabolism can
  then be obtained by multiplying the
  measured BCF by the "effective FCM."
  This approach would provide an
  allowance for metabolism for organic
  chemicals for which a measured BCF is
  available but for which .a measured BAF'
  is not available.
  •" EPA solicits comment on: Suggested
  methods to adjust predicted BAFs for
  chemicals that are metabolized; the
  types of chemicals or chemical groups  •
  for which the BAF might be affected by \
  metabolism, and the possible use of an
  "effective FCM", as described above, to~
  account for metabolism when measured
  BAFs are not available, but measured
  BCFs are available; and any other
  alternative methods hot explicitly
  described above.   •
•   e. Bioavailability. The predicted   .
  human health and wildlife BAFs for
  organic chemicals are based on the total
  concentration of the chemical in water.
  For highly lipophilic chemicals,
  however, a substantial percentage of the.
  total concentration can be associated
  with particulate and dissolved organic
  matter in water and be unavailable for
  accumulation. Thus, the bioavailability
.•  of the chemical in water might vary
  with the organic carbon contentof the -.:
  water. Even in "clean" laboratory water,
  a substantial percentage of a chemical'
  with a:Log P of seven can be associated
  with organic matter in the water.
 Application of BAFs to a site might,
 therefore, be improved by adjusting for
 the difference in bioavailability between
 the-site water and the water on which
 the predicted BAFs were based. This
 might best be done by deriving BAFs in
 terms of "freely dissolved" chemical,
 i.e., that which is dissolved and not -.'-•-
 associated with other organic matter.     "
 The concentration of freely dissolved
 chemicals will usually have to be
, predicted, but it might be measurable in
.some cases.
 - EPA invites comment on: The merit of
 the above approaches for refining the
.predicted BAFs, in light of the fact that
 standard lipid values, FCMs and , "-./; '
 measured and predicted BAFs do not
 take into account bioavailability and

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20862
Federal Register  / Vol. 58, No. 72 / Friday, April 16, 1993 /  Proposed Rules
partitioning; and any additional
recommendations for dealing with
bioavailability and partitioning of
chemicals of concern.
  f. Other Uses ofBAFs. In the proposed
Guidance, BAFs are used to identify
chemicals of greatest concern within the
Great Lakes basin. Chemicals identified
as Bioaccumulative Chemicals of
Concern (BCCs) are those for which
extra controls are necessary as specified
in the proposed implementation.
procedures and under the
antidegradation procedures in the
proposed Guidance.  See discussion of
BCCs in section n.G, above.
  EPA invites comment on: Other
approaches which might he used to
identify pollutants of greatest concern to
the Great Lakes (e.g., chemical release
and production data plus chemical
tojddly and persistence); and the use of
BAFs to identify these pollutants of
greatest concern.
4, SAB Comments
  In Us December 16,1992 report,
"Evaluation of the Guidance for the
Great Lakes Water Quality Initiative,"
EPA's Science Advisory Board (SAB)
reviewed the Initiative's draft BAF
methodology prepared in December
1991. The SAB found that the BAF
procedure is more advanced and
scientifically credible than existing BCF
procedures, and that the use of the BCF,
FCM, and BAF approach appear to be
fundamentally sound. The SAB  made a
number of comments, suggestions, and
recommendations, however, concerning
elements of the draft BAF methodology.
Ono of the specific recommendations is
discussed above (section IV.B.3.a of this
preamble). Other SAB comments
concerned the following areas: use of
the Thomann model or suggested
alternatives, metabolism,
supcrlipophilie chemicals, the
bioavailable form of a metal (mercury
and selenium), and additional equations
relating BCF to log P.
  In preparing the BAF methodology
and mis section of the preamble for the
publication of the proposed Guidance,
EPA hts revised the methodology and
clarified the discussion of issues since
the time of the SAB's review to address
many issues including those raised in
the SAB's final report. In those
revisions, EPA added additional
information and discussion of several
issues. Many of the revisions were in
response to informal comments from the
SAB, tha draft SAB report, and the final
SAB report. Nevertheless, EPA invites
comment on all of the issues raised by
the SAB concerning the BAF
methodology, including comment on
                      specific suggestions for improving the
                      methodology. •

                      5. Relationship of the Guidance to
                      Current EPA Guidance
                        Section 118(c)(2)(A) of the Clean
                      Water Act requires that the Great Lakes
                      Water Quality Initiative (GLWQI)
                      Guidance be no less restrictive than the
                     • Clean Water Act and National water
                      quality criteria and guidance, and
                      conform with the objectives and
                      provisions of the Great Lakes Water
                      Quality Agreement (the "Agreement").
                      The GLWQI Guidance proposes four
                      essential differences from existing EPA
                      guidance in the bioaccumulation area.
                      First, criteria are derived using field-
                      measured or predicted BAFs rather than
                      BCFs, as in existing section 304(a)
                      criteria guidance. This change will
                      result in more stringent criteria for most,
                      if not all, chemicals in the Great Lakes,
                      and is consistent with EPA's existing
                      guidance ("Technical  Support
                      Document for Water Quality-based
                      Toxics  Control" (EPA  505/2-90-001)
                     •and draft "Assessment and Control of
                      Bioconcentratable Contaminants in
                      Surface Waters" (56 FR13150)). Second,
                      the hierarchy of preferred methods to
                      obtain a BAF reverses  the recommended
                      order in the 1991 draft "Assessment and
                      Control of Bioconcentratable
                      Contaminants in Surface Waters". EPA
                      anticipates making a similar change to
                      its final "Assessment and Control of-
                      Bioconcentratable Contaminants in
                      Surface Waters."
                        Third, the "Guidelines and ,
                      Methodology Used in  the Preparation of
                      Health  Effects Assessment Chapters of ,
                      the Consent Decree Water Criteria
                      Documents" (45 FR 79341, November
                      28,1980), the 1991 "Technical Support
                      Document for Water Quality-based
                      Toxics  Control", and the draft
                      "Assessment and Control of
                      Bioconcentratable Contaminants in
                      Surface Waters" used  three percent
                      lipid for human health BAFs versus the
                      5.0 and 7.9 percent used for human
                      health and wildlife BAFs in the  GLWQI
                      Guidance, respectively. This change
                      will result in more stringent criteria for
                      organic chemicals in the Great Lakes,
                      and is justified .in light of Great Lakes-  .
                      specific data on fish lipid values.
                        The fourth issue relates to the lipid/
                      BAF relationship for superlipophilic
                      chemicals. The ability to predict
                      bioaccumulation is poor for organic
                      chemicals whose log Kow is greater than
                      6.5. Such chemicals are called
                      superlipophilic because of their very
                      strong affinity for lipids. Certain factors,
                      however, have been shown to inhibit
                      the bioaccumulation'of superlipophilic
                      chemicals. These include the chemicals'
very low .solubility in water and the
inhibition of molecular transport due to
the large size of the molecules. Because
of this, use of a FCM to derive a BAF
may result in an overestimation of the
bioaccumulation of these
superlipophilic chemicals.
  Current EPA guidance ("Technical
Support Document for Water Quality-
based Toxics Control") states that the
FCM for superlipophilic chemicals can
vary between 0.1 and 100, and provides
that a FCM of 100 may be used for the
top predator trophic level in the absence
of chemical-specific information. The
proposed Guidance recommends a FCM
of 1 in the absence of chemical specific
data. (In other' words, the BAF equals
the BCF unless chemical specific data
are available.) Current EPA guidance
("Technical Support Document for
Water Quality-based Toxics Control")
recommends a range of values, and the
proposed Guidance, with additional
data, recommends a specific default
value of 1.                       ,
  EPA is soliciting: bioaccumulation
data on any superlipophilic chemical
listed in appendix A of part 132 of the
GLWQI Technical Support Document;
suggested techniques for deriving a BAF
for superlipophilic chemicals, in the
absence of chemical-specific data; and a
recommended alternative FCM value (in
lieu of the proposed value of one) for
superlipophilic chemicals to be used in
the absence of chemical-specific data.
6. Adoption of Water Quality Standards
Consistent With the Proposed Guidance
  The Great Lakes Guidance for .
deriving BAFs is included in appendix
B of part 132. Examples ofBAFs derived,
using this methodology are also set forth
in appendix B of part 132 of the
proposed Guidance. The Great Lakes
, Water Quality Initiative
Bioaccumulation Factor Technical
Support Document, which discusses the •
basis for the proposed methodology and
which sets forth the data and
considerations upon which the
individual BAFs are based, is available
in the administrative record for this.
rulemaking. Copies are also available
upon written request to'the person
listed in section Xm of this preamble.
  Section 132.4 of the proposed
Guidance requires that States and Tribes
adopt requirements into their water
quality standards that are consistent
\vith the BAF methodology in appendix
B of part 132. The State or Tribal
regulations need not duplicate the
methodology in the proposed Guidance
verbatim, but, when presented with a
given data base, the methodology
• adopted by the State or Tribe will be    ,
 expected to demonstrate to EPA's

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                  Federal  Register /,:Vol. 58, No. 72  /  Friday, April  16,  1993  / Proposed Rules          20863
 satisfaction that the same BAF will be
 produced as would be produced using
 the final methodology in the Great Lakes
 Guidance. To the extent that current
. State or Tribal regulations or statutes --
 already contain a BAF methodology   .
 which is at least as stringent as the final
 Guidance, the State or Tribe nsed no.t
 •reproduce that guidance separately for
 the Great Lakes basin.

 ' The States and Tribes may adopt a
 methodology which results in more
Astringent (higher) BAFs than those  .
"which result from the final Great Lakes
 Guidance; however, this more  stringent
 methodology shall not be offset by less
 stringent, ofcompensating, adjustments
 in the derivation of.the wildlife or
 human health, criteria, or in the
 implementation procedures for those -
 criteria.            •  -

:'\7. Literature Gited  .      -' .

 Burkhard, L.P.,B.R. Sheedy, N.A. Thomas.
    1991. Field Evaluation of Residue     ,
    Prediction Procedures Used in. EPA's
    Guidance: " Assessment and Gontrol of
    Biocpncentratable Contaminants in    -
   ' Surface Waters."JJ.S. EPA National
    Effluent Toxicity Evaluation Center, Rpt. -
    '#10-91. '      '..'.-       ,
 Burkhard, L.P., B.A. Sheedy.N.A.  Thomas.
 "   1992, Field Evaluation of Residue
    Prediction Procedures Used in.EPA's
    Guidance: "Assessment and Gontrol of
    Bioconcentratable Contaminants in
    Surface Waters." Louisiana Study, U.S.
    EPA National Effluent Toxicity
    Assessment Center, Rpt. #1-92.
 .Conneil, D.-W. 1988. Bioaccumulatipn
    behavior of persistent organic chemicals
 :  with aquatic organisms. Pages 117-159
    In: Review of Environmental      •   f
    Contamination and Toxicology, Volume
    101.
 Mackay, D. 1982. Correlation of
    bioconcentration factors. Environ. Sci.
    Technol.  16: 274-278.
 Niimi, A.J. and G.F. Dookhran. 1989. Dietary
    absorption efficiencies and elimination
    rates of polycyclic aromatic
    hydrocarbons (PAHs) by rainbow trout
    (Salmo Gairdneri). Environ. Tpxicol.
    Chem. 8:  719-722.
 Oliver, B.C. and A.J. Niimi. 1985.          .
    Biocpncentration factors of some
    halogenated organics for rainbow trout:
   " limitations in their use for prediction of
    environmental residues. Environ. Sci. ,
   - Technol;  19: 842-849."
 Oliver, B.C. and A.J. Niimi. 1J988.
    , Trophodynamic analysis of
    polychlorinated biphenyl congeners and
    other chlorinated hydrocarbons in the
    Lake Ontario ecosystem. Environ. Sci. ••
    Technol.  22: 388-397.
 Randall, R.C., H. Lee IL R.J. Ozretich, J.L.   -
    Lake and RJ. Pruell. 1991- Evaluation of
    selected lipid methods for normalizing
    pollutant bioaccumulation. Environ.
    Toxicol. Chem. 10:1431-1436.
Thomann, R.V. 1989. Bioaccumulation
    Model of Organic Chemical Distribution
    in Aquatic Food Chains. Environ. Sci.
    Technol. 23: 699-707.
U.S. EPA, 1991. Technical Support  ,  :
    Document for Water Quality-based toxics
    control. EPA/505/2-90-001 U.S. EPA,
    Office of Water, Washington, D.C,
Veith, G.D., D.L. DeFoe and B.V. Bergstedt.
    1979. Measuring and estimating the
.    bioconcentration factor of chemicals in
    fish. J. Fish. Res. Bd. Canada 38:1040-
  ••-1048.      -       '• . - ;       :    ,-
Veith, G.D. and P. Kosiaff. 1983. Estimating
    Bioconcentratibn Potential from Octanol/
   , Water Partition Coefficients. Chapter 15  .
    in PCBs in the Great Lakes. Mackay, D.,
    ,R. Patterson,'S. Eisenreich, and M.  . -.'•
    .Simmons (eds.) Ann Arbor Science'. •

V. Human Health

A. Introduction    .  •              •
 • The proposed Great Lakes Water
Quality Guidance for human health is
described below. As with the Guidance
for aquatic life discussed earlier, EPA is
proposing a two-tier approach for
human health. Minimum data
requirements for Tier I. criteria and Tier
II values are discussed later in this
section. The proposed Great Lakes
Water Quality Guidance is compared
below with existing National Guidance
for developing human health criteria,
and the differences are discussed.
  Sample human health criteria have
been calculated using the proposed
methodology for 20 chemicals. The 20
chemicals chosen for criteria
development were selected from the
Great Lakes Water Quality Initiative
(GLWQI) group of chemicals of concern
listed in proposed 40 CFR part 132,  .-••.•
Table 6, to represent a broad cross
section of the types of chemicals found
in the Great Lakes basin. They include:
Halogenated and non-halogenated
chemicals; bioaccumulative and
nonbioacoimulative chemicals; and
organic and inorganic compounds. The
intent of the chemical selection was to
test the  proposed methodology against a
broad range of chemicals and to      '
demonstrate how the criteria
development process will be carried
out. Chemical selection- from among the
chemicals of concern was not made oh -'
the basis of health risk priorities, .but
more from the perspective of  ,
demonstrating the proposed
methodologies' applicability to all types
of chemicals.
  Once the proposed methodologies
haveheen.finalized, EPA may in the
future propose additional Tier I criteria
and Tier H values for the GLWQI
chemicals of concern or for other
pollutants of concern on a health
priority basis (see section II.D.2 of this
.preamble). In addition, microbial agents
which are of concern in the Great Lakes
may be the focus of future criteria
development as well. Developing" r
criteria for microbial agents will require.
the development of a new methodology
to assess microbial risks. (The
methodologies presented in today's
proposal are designed to assess risks
from chemical contaminants;  _
adjustments in methodology will be
required to assess the risks from
micfobial pathogens.) Pending such.
future EPA action, the Great Lakes
States and'Trihes will be expected to
use the final human health methodology
to derive Tier I criteria and.Tier II .
values as described in section n.D.2 of
the preamble.                   ' ":
 , Although EPA requests public  '
comment on all aspects of the proposal,
issues are raised throughout the
following discussion for which EPA  •   :
:specifically mvites comments. The
proposed human health methodologies
for calculation of cancer and noncancer
Tier I criteria and Tier H values are
included hi appendix C to part 132. A
Technical Support Documents for
Human Health rHuman Health TSD")
which further discusses the basis for
today's proposal, and Human Health
Criteria Documents which provide the
data arid considerations upon which the
20 proposed sample human health
criteria calculations  are based, are
available in the administrative record
for this rulemaking;  Copies of these
documents are also available upon  :
written request to the addresses listed in
section XIII of this preamble. The,
•Human Health TSD contains
'discussions and rationales for the
selection of different exposure      •
assumptions and risk assessment
approaches incorporated'in the
proposed human health methodologies.
 • Finally, EPA's expectations" for
determining whether.a State's water
quality standards are consistent with the
Guidance are set forth in section 132.4
and corresponding preamble
discussions.     .'  "    ; '   .     '    '

B. Criteria Methodologies  .
  Existing EPA guidelines for .the
development of human health criteria
were established in 1980. These
guidelines can be found at 45 FR 79347,
dated November 28,1980 ("1980
National Guidelines"). The objective of
the 1980 National Guidelines is;
  * *'* to estunate ambient water
concentrations which do not represent a
significant risk to the public. 45 FR 79347.
  This objective is retained in today's
proposed Guidance. The Guidance sets
forth criteria and methodologies to
derive human health criteria which will'

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Federal Register / Vol. 58, No.. 72 / Friday, AprillS, 1993 / Proposed Rules
not result in zero risk, but will provide
a level of protection likely to be without
appreciable risk. At some level of upper
bound incremental risk, generally
between one in ten thousand (10 ~4) and
one in ona million (10-
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                .Federal Register / Vol. 58, No. 72 /'Friday, April 16, 1993 / Proposed Rules
                                                                     20865

 non-carcinogenic effects, no identifiable
 threshold has been demonstrated.    '•'_••
. Chemicals which may exert non-
 threshold non-cancer effects include
 genotoxic teratogens and germline
 mutagens. EPA has recognized this;
 potentiaiinits "Proposed Amendments,
 to Agency Guidelines for Health
 Assessment of Suspect Developmental
 Toxicants" (Proposed Amendments to
 Agency Guidelines for Health
 Assessments of Suspect Developmental
 Toxicants, 56 FR 63798, (December 5,
 1991)) and in the Guidelines for
 Mutagenicity Risk Assessment ,
 (Guidelines for Mutagenicity  .-,. '
 Assessments, 51 FR 34007, (September
 24,1986)). Today's.proposed Guidance
 would require that a threshold
 mechanism of action be assumed in  ;
 deriving criteria for protection against
 noncancef effects, unless it is
 demonstrated on a case-by-case basis
-that there is no threshold with respect
 to a given chemical's toxicity efi:ect(s).
 Therefore, while today's proposed
 Guidance goes beyond the 1980
 National Guidelines by acknowledging
 that noncancer effects may not
 demonstrate a threshold, it is consistent
 with the .latest revision of the guidelines
 for developmental and mutagenic risk
 assessments.
   In the rare instance that this type of
/chemical is encountered, it is       v
 recommended that States and Tribes
 confer closely with EPA prior to
 establishing a noncancer criterion on
 the basis of a non-threshold effect.

 3. Choice of Risk Level
   Human health water quality criteria
 for cancer-causing substances are
„ typically expressed in concentrations'
 associated with a plausible upper bound
 level of increased risk of developing
 cancer. EPA derives criteria using a    :
 cancer potency factor which is an upper
 95th perceritile confidence limit of the
 probability of response based on human
 or experimental animal data. This   ,
 plausible upper bound estimate means
 EPA,is reasonably confident that the
 "true risk" will not exceed the risk
 estimate derived by this model, may be,
 less than predicted, and could be as low
 as zero.           ,
   In practice, the plausible upper bound
i cancer risk generally accepted by States,
 Tribes and EPA for exposure to
 individual chemicals present hi surface
 waters typically ranges between one in
 ten thousand (I'D ~4) and one in a
 million (10 ~6). Under the Guidance
 proposed today, the criteria derived  '
 correspond; to a plausible upper bound
 increased risk of developing cancer of i
 in 100,000 (10 ~ 5) over a lifetime of
 exposure. The choice of risk level was
based on the best professional judgment
of the Technical Work Group and is
within a range that EPA has historically
used in EPA actions, and approved for
State and Tribal actions. The majority of
the Great Lakes States traditionally have
used a 10 ~5 risk level in setting their
water quality criteria.      ,.
  EPA invites comment on this choice
of risk level, and on alternate risk levels,
such as 10~6 and 10~4 which could be  .
adopted in the. final Great Lakes human :
health criteria methodology. Decreasing
the risk level by a factor of 10 (i.e., from
10~3 to 10~6) results hi a corresponding
10-fold decrease in numeric criteria and
values (e.g., from 10 ug/L to 1 Hg/L),
while increasing the risk level by a
factor of 10 (i.e., from 10~5 to 10~4)
results in a corresponding 10-fold .    ,
increase in criteria and values.     -f
Consistent with the 1980 National
Guidelin.es, under today's proposal,
criteria for protection against non-
cancer effects are derived so as to
prevent hypdthetically exposed
individuals (i.e;, thoseconsuming
pollutant-bearing fish and drinking
water at .the rate assumed in the criteria-
derivation formulas explained below)  ;
from receiving a dose of the chemical
above that which is calculated to.
correspond to no appreciable risk of
adverse effect, based on a threshold
model of chemical activity.
4. Acceptable Dose
  Today's proposal and the 1980
National Guideliriesrare based on the
; principle that the potential for a
chemical to cause an adverse effect (e.g.,
carcinogenicity, toxicity) depends on:
Dose; the amount of the chemical
needed to induce the adverse effect; and
duration of exposure. Under today's
proposed Guidance, the dose associated
with a one in one hundred thousand
plausible upper bound risk of -.-•.".-
developing cancer from lifetime
exposure to a carcinogen is called the
Risk Associated Dose. (RAD). The dose
of a noncarcinogen expected to result in
no appreciable risk of adverse health
effects upon lifetime exposure is
referred to as the Acceptable Daily
Exposure (ADE),
  a. RAD. Determining a Risk
Associated Dose (RAD) under today's
proposed Guidance will typically
involve the following steps: Establishing
through review of scientific studies on
humans and/or animals that enough
evidence exists regarding the potential
'of the chemical to cause cancer to
warrant treating it as a known, probable
or possible human carcinogen for
purposes of criteria derivation; using
available data (typically from animal
studies) to establish a relationship
 between the dose of the chemical
 administered and carcinogenic
 response; translating a dose/response
 relationship based on animal data into
 an assessment of risk to humans; and
 calculating the specific dose to humans
 that will correspond to the particular
 risk level of interest (in this case, the
 10~5 risk level). It is important to note
 that many of these steps may have
 already been Conducted by EPA for a
 particular chemical and the results
 made available to the public through
 EPA's Integrated Risk Information  -
 System (IRIS). It is recommended that
 •IRIS be consulted when developing a
 RAD.           , ;    ,•;..    ..-  •
   The first step in developing a RAD
 involves determining whether scientific
 evidence supports treating the chemical
 as a human carcinogen for purposes of '
 criteria derivation. The considerations
 to weigh in making this determination K
 are described in section n. A. of the
 proposed methodology and the Human
 Health TSD and can also:be found in the
 1986 EPA Guidelines for Carcinogen
 Risk Assessment (51 FR 33992).
  ; The second step hi deriving a RAD
 involves using scientific studies that
 correlate varying doses of a chemical
 with carcinogenic response (-'.dose
 response studies") to establish a dose
 response relationship for the organism
 exposed hi the study that will allow
 estimation .of carcinogeniaresponse at •-..
 doses other than those/actually
 administered hi the study. Typically,
 insufficient data are available from  V •
 epidemiological studies to form the
 basis for derivation of a dose response
 relationship suitable for criteria
 development.'Where such        •    :
 epidemiologic. data are available,
 however, today's proposed Guidance
 specify that they should he used to
 calculate a criterion. In the usual
 situation where epidemiological studies
 are insufficient for this purpose, the
 Guidance provides for the use of animal.
 data.. When animal studies are used to
 estimate effects on humans, data from
 species most biologically relevant to
 humans are generally preferred (i.e., a
 species in which pharmacpkinetics and/
 . or toxic mechanisms of action appear
 closely related to humans. For example,
 it is generally accepted that results from -
 rodents are more likely to be relevant
 than results from birds). In the absence,
 .of data to distinguish the most relevant
 species, data fronrthe most sensitive
 animal species tested, i.e., the species
"exhibiting a carcinogenic response at
 the lowest administered Gose (given a
 relevant route of exposure), should be
 used.                 -.'•"• ;
   Typically, dose response tests are
 conducted at relatively high dqses  of the

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Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993 / Proposed Rules
 chemical of concern. The purpose of
 such an assay design is to ensure that an
 effect will be seen, if one is to occur,
 during the timeframe of the study. As a
 practical matter, it is generally not
 feasible to conduct a valid laboratory
 test to measure the dose that will
 actually yield only one cancer among a
 hundred thousand test organisms, even
 though it is that level of response that
 would ba most relevant for purposes of
 deriving criteria pursuant to today's
 proposed Guidance.  Accordingly, the
 information available on cancer
 response in test organisms exposed to
 high doses of a chemical is used to
 estimate the level of cancer response
 that would likely occur if doses were
 substantially reduced. Various models
 have been developed to perform this
 extrapolation, based in part on various
 theories of how chemicals operate to
 produce cancer. Consistent with EPA's
 general assumption,  discussed above,
 that carcinogens act in a non-threshold
 manner, EPA is proposing that a
 ynearized Multistage Model ("LMS")
 bo used to extrapolate from actual
 animal bioassay data to the dose/
 response relationship expected at low
 doses, unless it can be established on a
 caso-by-casa basis that another model is
 moro appropriate. EPA uses Global '86
 to determine cancer potencies. Global
 '88 is a revised LMS  derived by Howe,
 Crump, and Van Landingham (1986).
 (Howo, R., K. Crump, and C. Van
 Landingham, Computer Program to
 Extrapolate Quantitative Animal
 Toxicity Data to Low Doses. Prepared
 for EPA under subcontract S2-251U-
 2745 to Research Triangle Institute.) Use
 of the LMS for this purpose is consistent
 with the 1980 National Guidelines. A
 LMS yields a very protective estimate of
 potential cancer response at low doses
 because it is based on a non-threshold
 assumption  of carcinogenidty. EPA
 estimates risks using the 95 percent
 upper confidence limit on the risk
 associated with the low extrapolated
 dosos, thereby deriving a "plausible
 upper-bound" estimate of risk
 associated with any dose. The model
 assumes a linear relationship between
 dose and effect, allowing derivation of
 a "slope factor" or "potency factor"
 representing the incremental risk
 associated with every additional unit of
 doso expressed in milligrams of the
 chemical per kilogram of body weight
 per day.
  EPA believes the scientific basis
 supporting the LMS is better than for
 other current mathematical
extrapolation models, and for this
reason it has been adopted as the
primary basis for risk extrapolation to
                      low levels of the dose response
                      relationship. As the 1986 EPA
                      Guidelines for Carcinogenic Risk
                      Assessment state:
                        When data and information are limited,
                      and when much uncertainty exists regarding
                      the mechanism of carcinogenic action,
                      models or procedures which incorporate low
                      dose linearity are preferred when compatible
                      with the limited information. At present,
                      mechanisms of the carcinogenesis process are
                      largely unknown and data are generally
                      limited. If a carcinogenic agent acts by
                      accelerating the same carcinogenic process
                      that leads to the background occurrence of
                      cancer, the added effect of the carcinogen at
                      low doses is expected to be virtually linear
                      (Crump et al., 1976). In the absence of
                      adequate information to the contrary, the
                      1986 Guidelines for Carcinogenic Risk.
                      provide that linearized multistage procedure
                      will be employed.

                        Under today's proposed Guidance,
                      other models, such as the "time-to-
                      tumor" model or ones based on
                      modifications of the LMS model, may be
                      used on a case-by-case basis if the data
                      are more appropriately considered by
                      that model. For example, in some
                      studies there are low survival rates of
                      tested animals due to disease or
                      laboratory-related stress. Modifications
                      to the LMS model can account for poor
                      survivability and still allow for a
                      calculation of cancer potency factor
                      based on tumor occurrence in the
                      surviving test animals and the predicted
                      cancer fate of the population that did
                      not survive.
                        One of the difficulties sometimes
                      encountered in this aspect of criteria
                      development is that the animal study
                      being used to derive a dose/response
                      relationship was not of sufficient
                      duration (due to premature death of test
                      organisms) to measure  cancer
                      development over the natural lifespan of
                      the species. In this circumstance, the
                      proposed Guidance requires that the
                      potency factor be adjusted to account for
                      potentially unobserved tumors due to
                      the short study duration. As explained   '
                      more fully in the 1980 National
                      Guidelines (45 FR 79352) and the
                      Human Health TSD (section Ili-B), the
                      rationale for this requirement is that the
                      rate of the tumor incidence increases
                      with age, given constant exposure. A
                      short-term study is thus likely to
                      underestimate carcinogenic potential.  •
                      EPA has developed a factor (L/Le)3,
                      xvhere L is the natural lifespan. of the
                      test species and Le is the duration of the
                      study, which will adjust for less than
                      lifetime duration studies. Use of this
                      specific factor is required for use with
                      today's proposed methodology. The
                      slope factor adjustment will be
                      conducted for mice and rat data if the
                      study duration (Le) is less than 78
 weeks for mice or 90 weeks for rats, by
 multiplying the slope factor by the
 factor (L/Le)3. EPA requests comment
 oh whether the use of this adjustment
 factor for studies with less than lifetime
 duration is appropriate.        ,  .
   The third step in deriving a RAD is to
 translate the dose/response relationship
 derived for a test organism into an
 estimated dose response relationship for
 humans. In today's proposed Guidance,
 as in the 1980 National Guidelines, it is
 assumed that a dose expressed as
 milligrams per unit of body .surface area
 per day will yield equivalent cancer
 responses in test animals and humans.
 Thus a "surface area species scaling
 factor" is proposed for use in deriving
 a dose response relationship for humans
 that is based on animal data. EPA uses
 the surface area scaling factor based on
 evidence that among different
 mammalian species many physiological
 rates, especially ventilation, basal
 metabolic, and clearance rates tend to
 scale in proportion to surface area. It has
 also been found to hold for the acute
 therapeutic effects of anticancer agents.
   Where experimental doses are
 described in terms of dose per surface
 area, the surface area scaling factor is
 easily determined by comparing the
 surface area of the test organisms with
 that of the average human. However,
 scientists typically express doses
 applied in laboratory tests in terms of •
 milligrams of chemical per unit of body
 weight of the test organism per day.
 Since, to a close apprpximation, the
 surface area is proportional to the two-
 thirds power of the body weight (as
 would be the case for a perfect sphere),
 exposures in milligrams per kilogram of
 body weight per day raised to the %
 power would also be considered as"
 yielding equivalent cancer responses in
 test animals and humans under today's
 proposal. This approach is consistent
 with the 1980 National Guidelines.
 Certain researchers, including Travis
 and White (1988) (see the Human
 Health TSD), have determined that a
 three-fourths exponent may be more
 appropriate, based on a reassessment of
 historical data on anticancer drugs. EPA
' specifically requests comment .on the
 proposed use of a two-thirds exponent,
 and the possible use of a three-fourths
 exponent, for performing the above-
 described calculations.
   Not all Federal agencies use a surface
 area species scaling factor to translate a
 dose/response estimate for test
 organisms into an assessment of risk to
 humans. The U.S. Food and  Drug
 Administration (FDA), for example, has
 traditionally assumed that equivalent
 doses expressed as milligrams per unit
 of body weight will yield equivalent

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                 Federal Register  / Vol.  58,  No. 72  I  Friday,  April 16,. 1993 7 Proposed Rules          20867
 cancer responses (a "body weight
 species scaling factor"). Scientists differ
 on whether a body weight or surface
 area species scaling factor is>most
 appropriate. Some scientists believe a
 surface area scaling factor fits the data
 best for drugs and chemicals in which
 • metabolic effects are key to the  _   ;•
 mechanism of action, such as anticancer
 drugs. Other studies support views that
 body weight scaling may be moire
 appropriate tot other types of chemicals.
 As a practical matter, the surface area
 scaling factor will generally result in a
 more stringent potency factor than the
 body weight scaling factor.
   An inter-agency work group (Iriter-
. Agency Pharmacokinetics Group)
 comprised of EPA, FDA, and the
 Consumer Product Safety Commission
 (CPSC) has been working on tha issue of
 appropriate, consistent scaling factors
 for use by all of the agencies in
 developing risk assessments [57 FR
 24152 (June 5,1992)). If the woirk group
 completes its work prior to publication
 of the final Great Lakes Guidance, and
 if it determines that a species scaling
 factor other than the surface area or
 body weight scaling factors discussed
 above should be used, EPA will reopen
 the public comment period to allow
 comment on possible use of the work
 group's proposal in the final Great Lakes
 Guidance. In any event, however, EPA
 seeks comment on whether use of a
 body weight, surface area, or some other
 scaling factor should be used in the final
 , -Great Lakes Guidance.   .
   After the above steps have been used
 to calculate a cancer potency factor for
 humans, the final step in calculating a
 RAD is to use the cancer potency factor
 to calculate a dose in milligrams per
 kilograms per day that corresponds to a
 plausible upper-bound incremental
 cancer risk of one in one hundred --.. •
 thousand. This is the risk associated
 dose or RAD.
    b. ADE. For non-carcinogens, today's
 proposed Guidance establishes a data
 hierarchy for calculating the Acceptable
 Daily Exposure (ADE). This process is
 the same one used by EPA's reference
 dose (RfD) development process but
 differs in the amount of data required to
 develop  a number. In some cases, an
 ADE may be identical to an EPA RfD if
 the same data and judgments are used.
 However, these values may differ for
 reasons explained later in this section,
' and so to distinguish the two terms from
 each other, a different term (ADE),.
  defined slightly differently, is being
 used in the proposed Great Lakes
  Guidance. EPA defines an RfD as "an
  estimate (with uncertainty spanning
  perhaps an order of magnitude) of a
  daily exposure to the human population
(including sensitive subgroups) that is
likely to-be without appreciable risk of
deleterious effects during a lifetime."
U.S. EPA 1992, "Reference Dose:
Description and Use in Health Risk ".1..
Assessments." IRIS. Online: Intra-    _•
Agency Reference Dose Work Group,
Office of Health and Environmental
Assessment, ECAO, Cincinnati, Ohio,
This definition was used as the basis for
defining an ADE. In today's propdsal,
ADE has similarly been defined as an
estimate of the maximum daily dose of
a substance which is not expected to  •
result in adverse effects to the general
human population, including sensitive
subgroups.
  Calculating an ADE for a chemical'
involves the following steps:
Determining whether there is evidence .
from epidemiologic or animal studies
that exposure to a chemical may result
in adverse noncancer health effects;
using available data to determine a
threshold dose value that is likely to he
without appreciable risk of adverse
effect; and reducing this threshold dose
value to account for uncertainties
inherent in the risk, assessment to yield
an acceptable daily exposure for    '.  .
humans. Many noncancer effects are ,
clearly deleterious to human health, and
therefore clearly warrant derivation'of
water quality criteria to protect exposed
populations from them. Such effects "•
include reproductive impairment,   -
developmental tqxicity, impaired organ
function, reduced body and organ
weights, immunotoxicity, etc. For a
detailed discussion of what constitutes
an adverse effect, refer to U. S. EPA
 1992, "Reference Dose: Description and
Use in Health Risk Assessments." IRIS.
Online: Intra Agency Reference Dose
Work Group, Office of Health and '
Environmental Assessment, ECAO,  V
 Cincinnati, Ohio. There are some   ,,
 instances, however, where changes at
 the cellular or subcellular level may be;
 observed in test organisms, but it is  :
 unclear whether these changes are
 harmful. (For example, minor increases
 in enzyme activity, may or may not be
 precursors to or indicators of actual
 organ damage. These types of'effects
 need to be further validated by
 histopathological analysis to determine
 if actual organ damage has occurred.)
 Today's proposal provides for
 noncancer criteria that are protective'..
 from adverse acute, subchronic and
 chronic effects including reproductive
 and developmental effects (see  .
 appendix C to part 132, section I.B).
 EPA believes  that the proposed text will
 allow States and Tribes to consider on
 a case-by-case basis whether effects
• other than those cited in the appendix
 G to part 132, section I.B, i.e.,
 reproductive and developmental   .
 toxicity, including observed biological
 changes not demohstrably linked to
 adverse effects, should be considered
 "adverse" for purposes of criteria
 development. EPA solicits comment on
 whether it should specify in the
 methodology a longer list of deleterious
 effects that noncancer criteria should
 protect against, and whether the :  ,
 methodology should specifically   ;
 address criteria development based on
 observed biological changes not
 demonstrable linked to;an adverse-,
: effect.     •        ,    ''
   Once it is determined that exposure to
 a chemical may result in an adverse
 effect in humans, available data are used
 to establish a dose/response
 relationship. Use of well-conducted
 human studies (studies which are well
 designed, peer-reviewed and which.
 provide a basis for causal inference) are
 favored over use of animal studies for
 .this purpose. When animal studies are
 used to estimate effects on humans, data
 from species most biologically relevant
 to humans are generally preferred (i.e.,
 a species in which pharmacokinetics
 and/or toxic mechanisms of action
 appear closely related to humans), if it
 is not possible to distinguish the animal
 species that is most biologically relevant
 to humans, then data from the most
 sensitive animal species are generally to
 be used. (The Human Health TSD,
 section n, provides recommendations
 on relevant test species for different test •
 endpoints such as cancer, noncancer
 effects, reproductive effects, etc.) EPA  ,
 requests comments on the described
 approach and, particularly, on whether
 the most sensitive animal species
" should be used as a default when the
 most biologically relevant species is not
 identified or whether another approach
 should be used.                    •
   From these animal data, the
 experimental exposure level
 representing the highest dose at which
 there were no observed adverse effects
 (the NOAEL) is used for calculating the
 ADE. If a NOAEL has not been
: experimentally determined, the dose
 associated with a lowest observed
 adverse effect (LOAEL) involving
 relatively mild and reversible effects (as
 compared to effects at higher doses) may
 be used in the case of chronic studies
  (one year or longer in rodents, and 50
  percent or more of the lifespan in other
  appropriate test species) for ADE   •
  derivation. This does not preclude the
  use of a LOAEL from a study with only
-.; one or two doses if the effects appear
  minimal when compared to effect levels
  observed at higher doses in other    ,
  studies. For example, there are many

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 20868          Federal  Register /  Vol. 58, No. 72  / Friday, April 16, 1993  / Proposed Rules.
 studios for which only one dose has
 bten tested with resulting minimal,
 ravefsibla effects such as minimal
 enzyme changes or body weight
 decreases. These minimal changes or
 effects, on their own, may not be
 thought of as adverse but may be
 Indicators or precursors to more severe
 effects which result from extended
 exposure and/or higher doses. In those
 cases, while it can be argued that such
 an effect may be a LOAEL, it may also
 bo very close to the NOAEL.
   Having established a NOAEL or
 LOAEL in either an animal or
 opldemiologic study, the final step in
 deriving the ADE is to reduce the
 NOAEL or LOAEL to account for
 uncertainties in predicting acceptable
 exposure levels for the general human
 population. The use of "uncertainty
 factors" for this purpose is common
 practice by EPA in deriving noncancer
 criteria. The size of the uncertainty
 factor varies depending on the data
 available for ADE calculation, including
 whether the data are from a study on
 humans or test animals, and on whether
 tha study demonstrates a NOAEL or a
 LOAEL. Tha 1980 National Guidelines
 establish three general provisions for
 deriving uncertainty factors:
 * i. Valid experimental results from
 studies on prolonged ingestion by
 humans, \vith no indication of
 cardnogenidty. Uncertainty factor=10.
  ii. Valid results of experimental
 studies of human ingestion are not
 available. Valid experimental results of
 long-term feeding studies on animals, or
 valid animal studies on one or more
 species, No indication of
 cardnogenidty. Uncertainty factor=100.
  iii. No long-term or acute human data.
 Scanty results on experimental animals
 with no indication of carcinogenicity.
 Uncertainty factor=1000.
  Since the 1980 National Guidelines
 were published, additional research and
 continuing EPA deliberations have
 occurred regarding use of uncertainty
 factors (see, e.g., U.S. EPA, 1992, IRIS;
 Dourson and Stara, 1983; Regulatory
 History and Experiment Support of
 Uncertainty (Safety) Factors, Regulatory
 Toxicology and Pharmacology. 3:224-
 238). The three provisions taken from
 the 1980 National Guidelines apply to
 just three situations. In developing RfDs,
 two additional uncertainty factors are
 now applied to account for conditions
such as severity of effect when a LOAEL
 is used instead of a NOAEL and
incompleteness of data set. All
uncertainty factors are judged oil a case-
by-caso basis depending on the overall
 database. The default value of these
 factors is 10, but other values have been
used (generally 3) and multiple factors
 are often combined when 4 or 5 are used
 together.
  The most up-to-date EPA guidance on
 the application of uncertainty factors
 has been used as the basis of today's
 proposal (U.S. EPA, 1992, IRIS). For a
 more complete discussion of the
 uncertainty factors chosen under
 various data schemes, refer to appendix
 A of the Human Health TSD.
  Under today's proposal a composite
 uncertainty factor of 30,000 is the
 maximum uncertainty allowed when
 deriving a Tier I criterion or Tier II
 value. When deriving a Tier I criterion
 the likely maximum composite
 uncertainty factor applied to a 90 day
 NOAEL may be 3000. The total 3000 is
 based on four separate uncertainty
 factors: A factor of generally 10 to
 account for intraspecies variability (the
 sensitivity within the human  ,
population); a factor of generally 10 to
 account for interspecies variability
 (intended to account for the uncertainty
 in extrapolating animal data to the case
 of humans); a factor combined of
 generally 30 to account for both
 subchronic to chronic variability; and to
 account for an incomplete database  (i.e.,
 lack of a reproductive, bioassay,
 developmental toxicity studies data in
two species and a second species
general toxicity bioassay). Note here that
in. the use of these latter two factors; two
areas of uncertainty which generally
warrant a default value of 10 each have
been combined to yield a 30-fold factor.
  Under Tier II, the likely maximum
composite uncertainty factor may be
30,000 which would be applied to a
greater than 28 days minimal LOAEL
 (e.g., 30 day). The total of 30,000 is .
based on EPA's standard uncertainty
factors (four factors of generally 10 each
are used to account for intraspecies
variability^interspecies variability,
subchronic to chronic variability, and
incompleteness of data set) which
together warrant the use of a 10,000-fold
factor, and an additional factor of 3 to
account for the uncertainty in
extrapolating from a study greater than.
28 days but sufficiently less than 90
days to warrant a factor of 3.
  The choice of appropriate uncertainty
and modifying factors reflects a case-by-
case judgment by experts and should.
account for each of the applicable areas
of uncertainty (described above) and .
any nuances hi the available data that
might change the magnitude of any
factor. Several reports describe the
underlying basis of uncertainty factors   "
(Zielhuis et al., 1979; Dourson and
Stara, 1983) and research into this area
(Galabrese.  1985; Hattis et al., 1987;
Hattis and Lewis, 1992; Hartley and
Ohanian, 1988; Lewis et al., 1990;
Dourson et al., 1992; Dourson, 1993;
Renwick, 1991; 1993).
  The use of such uncertainty factors
and their application has not been
without controversy in the literature.
For example, Lewis, S.C., J.R. Lynch and
I. Nikiferov, (Regulatory Toxicology and
Pharmacology, 11, pp. 314-330, (1990),
note that it seems excessive to require  •
a 10-fold uncertainty factor to correct for
intraspecies variability, whereas a  ..  t
reading of Calabrese (1985) would
suggest that perhaps more than a 10-fold
factor is needed, Building on earlier
work of Weil (1972) and Dourson-and
Stara (1983), Lewis et al (1990) suggest
that based on 450 studies of lethal
doses, for 85 percent of the studied
chemicals a factor of 6 was adequate to
protect 99.9 percent of the individuals.
Lewis et al. (1990) state that lower
values for intraspecies adjustments are
surely adequate for this 85 percent of
chemicals; for another 15 percent,
however, a factor larger than 6 is
needed.  •                      •    •
  Lewis et al. (1990) also.note that
according to some data, a factor of 10 to,
extrapolate from subchronic effects to
chronic effects is excessive. In
particular, they write that studies of 41
different chemical agents indicate that a
ratio of 3 would be adequate to
extrapolate subchronic statistics to
estimate corresponding values for
chronic exposures in all instances. This
point is similar with a careful reading of
Dourson and Stara (1983). Citing an
earlier series of toxicity experiments,
Dourson and Stara state that the ratio of
the subchronic to chronic NOAEL or
LOAEL "for more than half of the
observed chemicals are 2.0 or less".
This result indicates that the chronic .
NOAEL or LOAEL was'2-fold less than
the corresponding NOAEL or LOAEL for
more than half of the given chemicals
after subchronic  exposure. Further,
Dourson and Stara write "approximately
96 percent of these ratios are below a
value of 10." Thus the empirical .
evidence on differences between
chronic and subchronic exposure effects
on laboratory animals would suggest
that use of a default uncertainty factor
of 10 in the absence of chemicakspecific
data should be regarded as a loose upper -
bound to the range of values associated
with these ratios. These factors of 10 are
not average values.
  EPA defines the RfD as "an estimate  -
(with uncertainty spanning perhaps an
order of magnitude) of a daily exposure
to the human population (including
sensitive subgroups) that is likely to be
without an appreciable risk of
deleterious effects during a lifetime."
U.S. EPA 1992, Reference Dose:
Description and Use in Health Risk

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                Federal Register / VoL 58, No. 72 /Friday, April 16, 1993 /Proposed Rules
                                                                    20869
Assessments. IRIS. Online: Intra Agency
Reference Dose Work Group. Office of  ;
Health and Environmental Assessment,
ECAO, Cincinnati, Ohio. Given this
definition, it has been EPA's practice to
use default uncertainty factors of 10 that
are loose upper bounds to the potential
range of values. Nevertheless, EPA
solicits comments on the uncertainty
factors included in this proposal, and
particularly on whether other
uncertainty factors might offer hotter
assessment of risk, and he more
appropriate in deriving water quality
values and criteria.
   c. IRIS. EPA currently has a process
to develop consensus on cancer slope
factors and RfDs (referred to as ADEs for
the Great Lakes). These values .are
derived by two. EPA work groups, called
the RfD/RfC and GRAVE work groups,
and made available as guidance to EPA.
program offices and to the public via a
database called the Integrated Risk    .
Information System (IRIS)'. The IRIS
values (RfDs and cancer slope factors)
are recommended for use as a starting
: point by various EPA programs for the.
development of regulations and
guidance.
   Today's proposed Guidance        •
recommends that the IRIS cancer slope
factors and RfDs (ADEs) be considered
as a first step in deriving the Great Lakes
Human Health criteria. In certain  _.
circumstances, however, deviation from
these values can be expected; First, the
Great Lakes cancer slope factors and
ADEs may differ where they are based
on new data that were not available at
the time EPA work groups derived the
IRIS values. This  will ensure that the
criteria are derived based on the best
available information.
   For example, the mercury value
presented in today's proposal is based,
in part, upon data that was hot
considered by EPA's RED work group.
The ADE for mercury used to calculate
today's proposed Tier IHNV is,
• therefore, different from the RfD which
 currently appears in IRIS. Although this.
 type of discrepancy could likely be
 remedied by updating IRIS values at the
 same time that Great Lakes criteria'and
values are derived, this will not always
be possible given the heavy workload of
 the IRIS work groups.         V
   Second, EPA work groups may;not
 have followed .the procedures specified'
 in today's Guidance in deriving their
 values, or they may have interpreted the
 data differently. Where detailed risk
 assessment methodology guidance is
. lacking, case-by-case decisions based on
 professional judgement may differ. In r
 today's proposal, when an ADE or RAD
 differs from the values in IRIS, the Great
 Lakes Technical Work Group may have
interpreted the science slightly'
differently, than the RfD or CRAVE work
group for a particular chemical.  '
Scientific justification supporting such
deviations from IRIS guidance is
provided in the!individual Tier I criteria
technical support documents included
in the administrative record to today's  :
proposal. For example, today's RAD for
dioxin is based on a cancer slope factor
which differs from the IRIS cancer slope
factor for dioxin. While both cancer
slope factors are derived using data from
the same rat feeding study, different
pathologists reviewing the slides from
that study have counted the tumors
differently, and therefore have come to
somewhat different conclusions   ;'
regarding the potential of the chemical
to cause cancer. The IRIS slope factor is
based on a tumor Count conducted in
1978, while the slope factor used to
derive today's proposed criteria is based
on a tumor count of the same slides that
was conducted in 1990, using a
somewhat different protocol for
counting tumors/This issue is described
more fully in the human health criteria
document for dioxin which is available
in the administrative record for today's
rulemaking. EPA's CRAVE work group
has not yet considered whether to
change the IRIS dioxin cancer slope
factor based on this  new information.
This and other new  scientific
information is currently undergoing
extensive review by EPA's Office of
Research and Development as part of a
comprehensive reassessment of dioxin
toxicity, discussed in more detail below
   Third, in some cases, EPA work
.groups may not have developed RfDs or
cancer slope  factors for some chemicals,
or'previously calculated values have
been withdrawn from IRIS.  The    '/
methodology proposed today may be
used to develop cancer slope factors and
.ADEs for the purpose of setting human
health criteria in the absence of IRIS
values for a particular chemical.
   EPA requests comments on deviating
 from IRIS values in  deriving Great Lakes
criteria and values for the reasons
highlighted above.
 5. Exposure Assumptions.     ,   .
   Today's proposed Guidance identifies
 seven factors which affect an'.',
 individual's oral exposure to a
 chemical. Theseare: Body weight;    ,
 duration of exposure; recreational
 exposure; drinking water consumption;
" fish consumption; bioaccumulation
 factor and relative source contribution.
   a. Body Weight.Today's proposed
 criteria methodology, as well as existing
 National criteria methodology, assume a
 mean adult human body weight of 70
 kg. This value is consistent with that
 recommended in the EPA's Exposure
 Factors Handbook (EPA 600/8-89/043,
 July 1989), which is available in the
 administrative record for this ••."•>•     ;
 rulemaking. Data In the handbook
 indicate that the mean body weight of
 adults is 71.8 kg on a National basis
 which can be rounded to 70 kg. While
 there is some evidence based on   ,  ,
 regional data isolated from the National
 Health and Nutritional Examination  .
 Survey (NHANES H) that mean weight
 may be slightly higher than 71.8 kg
 within the Great Lakes basin, this data
 can also be rounded down to the 7.0 kg
 value. Use of a slightly lower body   -
 weight value will result in a slightly :'
 more stringent criteria; EPA views a
 rounding downidf body weight data to
 be a conservative approach. EPA
 requests comments on the usaof the 70
 kg body weight assumption and also
-asks for comments on the issue of using
 body weights of sensitive
 subpopulatibns (such as children) when
 a chemical's toxicity indicates a specific
 subpopulation is most sensitive to  .
 exposures.           •
   b.Duration of Exposure. Today's
 proposed Guidance assumes that oral
 exposure remains.constant for a
 lifetime. The exposure values are based
 on, or consistent with, Great Lakes-
 specific data. While the exposure ' .
 assumptions could be over- or under-
 protective for individuals who live a   •
 portion of their lives outside the Great
 Lakes basin (in areas where their.
 exposures are different), EPA believes
 that it would not be practical to attempt
 -to derive exposure assumptions that
 would take into account the movement
 of people in and out of the Great Lakes
 •basin. EPA believes it is reasonable to
 derive criteria based on exposures of
 those individuals living their entire
 lives in the Great Lakes basin. Since
 .drinking water and fish consumption in
 the Great Lakes is equal to or greater
 than that of most other areas of the
 country, the exposure assumptions
 should be appropriately conservative for
 most if not all individuals moving in
 :and out of the.Great Lakes area. EPA
 requests comments on the use of longer
 lifetime exposure periods, such as 75
 years instead of the currently proposed "
 70 years. EPA also requests comments ,
 on whether the use of shorter exposure
" periods (i.e., less than 70 years) would
 be more appropriate to account for.
 mobility of individuals in and out of the
 Great Lakes  basin.         .     :  '
    c. Incidental Exposure. Theincidental
 ingestiori exposure factor relates to oral
: exposures which might occur through  '•
 recreational activities" in or on the water:
 This factor is relatively small, and has
 'not been included in the derivation of  --

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 20870
Federal Register / Vol.  58,  No. 72  / Friday, April  16,  1993 / Proposed Rules
 the existing National criteria. While the
 contribution from recreational
 exposures is estimated to be small for
 the Great Lakes region based on
 estimates of recreational activity in the
 Great Lakes basin, EPA believes that
 including the factor in today's Guidance
 represents a marginal improvement over
 the existing National approach. The
 value proposed (0.01 liter/day) for use
 In today's Guidance represents oral
 exposures only, and is oased primarily
 on evaluation of recreational exposure
 estimates made by EPA in 1979 (U.S.
 EPA, 1979, Identification and
 Evaluation of Waterborne Routes of
 Exposure from Other than Food and
 Drinking Water, Office of Water
 Planning and Standards, EPA 440/4-79-
 018) and on recreational activities data
 compiled by the State of Michigan.
 Those data are summarized in the
 Human Health TSD (Exposure
 Assumptions, section ELD) which
 describes in detail the basis for today's
 proposal. EPA also requests comments
 on whether a factor should be included
 for incidental dermal exposure which
 occurs through recreational activities.
 EPA requests submission of any data
 that could be used to derive such a
 factor. Soma studios with chemicals,
 such as trichloroethylene, have shown
 that dermal uptake occurs in animals
 exposed to the chemical in water
 (Bogan, K.T., et al., 1992, Dermal
 Absorption of Dilute Aqueous
 Chloroform, Trichloroethylene, and
 Tetrachloroethylene in Hairless Guinea
 Pigs, Fundam, Appl. ToxicoL, 18:30-
 39), which is available in the
 administrative record for this
 rulomaking.
  d. Drinking Water Consumption. The
 current National human health criteria
 assume a drinking water consumption
 rate of two liters per day. Originally,
 this value was adopted from the U.S.
 Army which has established that figure
 as the amount needed for military
 personnel ia the field. This number was
 later adopted by the National Academy
 of Sciences in developing drinking
\vater risk assessments (NAS, 1977.
Drinking Water and Health, p. 11.). EPA
has reviewed additional data (several
studies in different parts of the country)
on drinking water consumption which
indicates that the average adult water
consumption rate is 1.4 liters per day
 (USEPA, 1989, Exposure Factors
Handbook, EPA/6dO/8-89/043).
However, the data also indicates that
two liters per day is a reasonably
conservative assumption of at least the
00th porcontila consumption value for
tho Great Lakes basin  (Cantor, K.P., et al.
1987. Bladder cancer, drinking water
                      source, and tap water consumption: A
                      case control study. J. National Cancer
                      Institute 79(6):1269-1279). The data
                      from Cantor's study are taken from
                      several mid-west and east coast cities
                      and states, including Detroit and Iowa,
                      which are considered representative of
                      the Great Lakes region. EPA is
                      proposing that the criteria be derived -
                      using this 90th percentile ingestion
                      value of two liters per day, but requests
                      comment on whether selection of
                      another value such as 1.4 liters per day
                      would be more appropriate. It should
                      also be noted that, since the two liters
                      value is a conservative assumption (only
                      10 percent of the population drinks two
                      liters of water a day and considerably  .
                      less can be expected to drink two liters
                      of untreated surface water) and the 0.01
                      liter associated with incidental exposure
                      is so minute, EPA presumes that two
                      liters per day is protective of both
                      drinking water and incidental ingestion
                      exposures for waters which may be both
                      a drinking water source and used for
                      recreation. EPA requests comments on
                      whether such an assumption is justified.
                      EPA also requests comments on whether
                      surface water criteria for waters
                      designated for drinking water uses
                      should assume consumption of
                      untreated water, as is proposed.
                        e. Fish Consumption. Today's
                      proposal includes a fish consumption
                      rate of 15 grams per day. This differs
                      from the 6.5 grams per day value which
                      is used in the derivation pf the existing
                      National criteria. The 6.5 grams per day
                      value represents a National average
                      consumption value for freshwater and
                      estuarine fish and shellfish, whereas the
                      proposed Great Lakes value represents
                      at least the mean exposure level for
                      regionally caught fish for the regional
                      sportfishing population. (Based on
                      regional population data, including
                     information on the number of
                      sportfishing licenses bought  and used,
                     members per family, and measured fish
                     consumption rates, it is predicted that
                     approximately 90% of the entire
                     regional population consumes 15 grams
                     or less of regionally caught fish per day.)
                     Thus, a more conservative target
                     population was chosen than is used in
                     the National criteria methodology and
                     the proposed fish consumption value is
                     based on Great Lakes-specific statistical
                     data. The actual value of 15 grams per
                     day was derived from review of several
                     regional studies in. Michigan (West, et
                     al., 1989), Wisconsin (Fiore et al, 1989)
                     and New York (Connelly, et al., 1990).
                     The Human Health TSD (Section D—
                     Exposure Assumptions) provides an
                     analysis of these studies, and discusses
                     the derivation of the 15 grams per- day
 value. While some of the sportfishing
. population (and other subpopulations
 such as subsistence .anglers) may
 consume more than 15 grams per day,
 EPA believes these values are very
 protective of the entire population for
 the following reasons:
   i. The fish consumption estimate is an
 estimate of fish carrying the highest
 body burden of pollutant that will be
 allowed through implementation, of the
 criteria. Since it is highly unlikely that
 even those who eat more than 15 grains, ,
 per day of all freshwater fish will eat
 more than the equivalent of .15 grams
 per day of maximum pollutant-bearing
 fish, the consumption rate will also be
 protective of the high end consumer.
   ii. The proposed Guidance allows for
 the use of higher fish consumption rates
 and drinking water rates in developing
 site-specific criteria (see section VIII. A
 of this preamble) which would provide
 increased protection for those particular
 waters that are heavily used by
 subpopulations that may not be
 adequately protected by State-wide
 criteria, such as certain subsistence
-anglers.
   f. Bioaccumulation Factor (BAF).-The •
 BAF is the ratio of the pollutant   '
 concentrations in aquatic organisms to ••
 pollutant concentrations in the waters
 in which they live. Because some
 chemicals have a tendency to
 accumulate in fatty tissues,
 concentrations of such chemicals in
 aquatic organisms can be thousands of
 times greater than in ambient waters.
 Today's proposal includes a
 methodology for deriving BAFs, and
 technical suppprt documents describing
 the methodology and BAF derivation for
 those chemicals for which human
 health and wildlife criteria are
 proposed. The preamble to the BAF
 methodology discussed differences
 between the proposed approach and the
 existing EPA approach.
   g. Relative Source Contribution.
 Under today's proposed Guidance, EPA
 assumes an 80 percent relative source
 contribution (RSC) from surface water
 pathways (water and fish) for
bioaccumulative chemicals of concern
 (BCCs), and 100 percent RSC for non-
BCCs, in deriving noncancer criteria/
values. A100 percent RSC is assumed
for all chemicals in deriving cancer
criteria/values.
   The existing 1980 National guidelines
assume a 100 percent RSC for all
chemicals, unless there are specific data
available on other ingestion arid
inhalation exposures. In practice, when •
calculating human health criteria, these
other exposures (ingestion and
inhalation) were generally excluded
because accurate data on these other

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Federal Register  /  -Vol. -58,; Nbi 72 7
                                    993 '/ Proposed Rules
                                                                                                          20871
 exposure pathways were not available.
 However, in a total exposure evaluation,
 there may be exposures from food, air
 and soil for a given chemical.     :
.:  To at least partially account for
 exposures through other pathways, the
 Great Lakes Technical Work Group ;•
 developed a RSC for surface water;
 pathways of 80 percent for
 bioaccumulative chemicals of concern
 (BCCs). (See the "definitions." section to
 determine whether a chemical is
 considered "bioaccumulative, chemical
 of concern.")          •
   The RSG factor is based upon the
 concept described in EPA's National
, Primary Drinking Water Regulations  .
" 0anuary 30,1991, 56 FR 3535) where,
 in the development of-maximum
 contaminant level goals (MCLGs) for
 drinking teter, a relative source
Vcontribution from drinking water is
 assumed to be 20 percent in the absence ,
 of actual exposure data,      .',  "-
   Fo^ non-BCCs, the Great Lakes
 Technical Work GrQup'.proposed a RSG
 of 100 percent. The Work Group    " ' .
 reasoned that bioaccumulative
 chemicals are those for which surface
 water pathways are likely to be major
 contributors to total human exposure,
' and, therefore those upon which the
 surface water program should,
 particularly focus in achieving pollutant
 discharge reductions. For npn-
 bioaccumulative pollutants, assuming
 less than 100 percent RSC'could forcd
 large-scale reductions in discharges that
 are relatively insignificant compared to
 other exposure routes. The Technical
 Work Group reasoned that the other   ,
 more significant routes of human      ,
  exposure should be addressed through
  other regulatory efforts, rather than
  attempting to eliminate relatively
  insignificant exposures via greater
  control of discharges to surfaqe waters.
    EPA requests comments on today's
 , proposal and on possible alternatives to
 .today's proposal for derivation of   .
  noncancer criteria and values, such asi
  Providing  for and/or requiring the use of
  actual data, when available, to calculate
  the ambient surface water exposure
  contribution to the  total human !  ,
  exposure for both bioaccumulative and
  non-bioaccumulative chemicals, in lieu
  of using the proposed default approach
  for nonbioaccumulatives only; the use
  of 100 percent exposure from surface
  water for" all pollutants; the use of a
  "basement" and "ceiling" ranging from
  20-80 percent when actual data indicate
  the RSC is below 20 percent or greater
  than 80 percent, the use of alternative
  default percentages (e.g., 20-40 percent
  for non-bioaccumulative pollutants and
  40-^60 percent for bioaccumulative
  pollutants to ensure greater protection
 from unknown sources), when intake
 data from other exposure routes are, not
 available to characterize overall
 exposure; and the inclusion of a
 provision allowing flexibility in    .
 adjustinga calculated RSC upward or
 downward depending on how much
 actual total exposure from all ingestion
 pathways approaches the health-based  .
 RAD or ADE. EPA also requests public
 comment on whether, any of the options •
 described in this preamble for use of an
 RSC in deriving noncancer criteria and
 values should be considered in
 calculating Great Lakes cancer criteria ."
 and values (HCVs).   "              ,
   hi General Considerations. Although
 the, methodology proposed today
 provides that all adverse effects ~
 (including acute and subchronic effects)
. should be evaluated in deriving an
 HNV, the methodology utilizes the same
. set .of exposure assumptions regardless
 ,of the type of effect chosen as the basis
 for criteria/value derivation. The
 exposure assumptions include the 15
 gram-per-day fish consumption value
 and the two liter per day drinking water
 value described above. These
 assumptions are based on long-term
 average consumption rates that are most
 appropriate for use in deriving criteria
 protective against long-termChronic
 effects. It can be expected, for example,
 that people may eat as much as one-half
 to one pound (224 to 448 grams) of fish
 in a single meal, and that there may be
 occasions (such as on recreational
 fishing outings) when such large fish
 meals are consumed on a, daily basis for
 several consecutive days. The two liter
 drinking water consumption rate may
 represent a worst-case assumption for
 most people (see Exposure Factors
 Handbook); however, there maybe
 subpopulations, such as manual
 laborers, for whom it is not. The
 concern from a health standpoint is that
 a human might receive a large enough
 dose of a chemical from consuming a
 large amount of fish or water over a
 short time period to result in acute or
: subchronic tdxicity.      •
    Accordingly, EPA invites comment on
 whether the final methodology should ;
 specify a different set of exposure
 assumptions for use in deriving criteria
 protective of acute and subchronic,
 effects. Data supporting a value other
 than the two .liter per day drinking
 water consumption estimate is
  specifically requested. In addition, EPA
  invites comment on/the possible use of
  448 grams (one pound) as a reasonable
  worst-case, one-day fish consumption
  estimate and 2,240 grams as a,
  reasonable worst-case, 10-day fish
  consumption estimate (based on  10
  consecutive days of consumption of
                                                            one-half pounds offish). These values
                                                            could be used hi deriving one-day and
                                                            10-day criteria/values protective of:
                                                            acute and subchronic,effects; EPA's '•••"••
                                                            drinking water program has used these
                                                            exposure periods in deriving drinking
                                                            water health advisories. EPA invites
                                                            comment, however, on.whether
                                                            different exposure periods would be-
                                                            more appropriate in deriving surface
                                                            water criteria/values. EPA also invites
                                                            comment on the possibility of requiring
                                                            the derivation of criteria/Values
                                                            addressing short-term, high level
                                                            .exposures where sufficient data exists,
                                                            and providing that .the- more stringent of
                                                            the chronic criteria/values  or the acute/
                                                            subchronic criteria/values should apply
                                                            in regulating Clean Water Act
                                                            discharges.
                                                              Finally, EPA also requests comments
                                                            on the option of changing all exposure
                                                            levels such as using 1 liter/day for a
                                                            water consumption factor,  a lower fish
                                                            consumption rate, and a lower duration
                                                            of exposure level, in order  to,develop a
                                                            criterion exclusively developed for a
                                                            child.    ;    ..,:  :         .-••'•
                                                            6. Minimum Data Requirements/Tier I •'.
                                                            and Tier n       .              :
                                                               In developing today's proposal, the
                                                            Initiative Committees worked to address
                                                            a perceived shortcoming associated with
                                                            the existing 1980 Guidelines' human •
                                                            , health water quality criteria
                                                            methodology. The shortcoming involves
                                                            the need for a fairly extensive database   .
                                                            before a human health criterion can be
                                                            derived and a discharge permitted.
                                                            Although a NOAEL from a 90-day study
                                                             (which is a minimum requirement of the
                                                             1980 National Guidelines in order to •
                                                             develop a noncancer criterion) does not
                                                             appear-to represent ah extensive
                                                             database to develop a Tier I criterion; a
                                                             90-day study may cost up  to $120,0000
                                                            to complete and may result in even
                                                             more cost and time expenditures if
                                                             histopathology is performed on test
                                                             animals. In addition, many.90-day    •
                                                             studies are preceded by range finding
                                                             Studies which add to overall time/cost .
                                                             expenditures. With regard to Tier I
                                                             cancer criteria, a long-term or lifetime
                                                             study (generally a year and a half to two
                                                             years of exposure) in a rodent is a    :   .
                                                             minimum requirement to 'determine
                                                             potential carcinogenicity.  This extensive'
                                                             database requirement has  resulted in
                                                             lack of criteria for many chemicals and
                                                             a resultant case-by-case determination
                                                             by States in order to permit a particular
                                                             chemical discharge. In'a worst case
                                                             scenario, it may have resulted in the .._-••
                                                             discharge of a particular chemical
                                                            , without consideration of health effects, •
                                                             thus potentially endangering the welfare
                                                            . of the human population in the area of :

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 20872         Federal Register / Vol. 58. No. 72 / Friday; April 16, 1993  / Proposed Rules
 the discharge. In other cases, the State
 has regulated a poorly characterized
 chemical by using a technology based
 permit limit or a broad chemical
 parameter such as chemical oxygen
 demand (COD) or total organic carbon
 (TOQ.
   Generating the required criteria
 development database can take many
 months or years and may be very
 expensive. Further, it maybe necessary
 for States to quickly decide an
 acceptable ambient level of
 contaminants. To address this Issue, a
 Her n methodology, which requires a
 less extensive database [similar to the
 Tier II methodology for the development
 of aquatic life values), is also proposed
 herein for the development of human
 health values,
   a. Carcinogens, The methodology for
 deriving Tier I criteria and Tier E values
 for carcinogens (the human cancer
 values or HCVs) is identical. However,
 the Tiers are distinguished by weight of
 evidence, and the amount and quality of
 data that is required for use in deriving
 the criteria or values. The goal is to
 eventually have sufficient data
 developed on the Tier n chemicals to
 allow development and adoption of Tier
 {criteria.
   Tior I HCVs are calculated for
 chemicals for which data exist which
 are sufficient to classify the chemical as
 a human carcinogen (Group A under the
 existing EPA classification scheme
 described in. detail in the 1986 EPA
 Guidelines for Carcinogenic Risk
 Assessment (51FR 33992), or a probable
 human, carcinogen (Group B). la
 addition, for possible human
 carcinogens (Group C), for which data
 may be quantified, a Tier I criterion may
 ba developed when studies have been
 weU-conducted yet are limited because
 they involve only a single species,
 strain, or experiment which does not
 demonstrate a high incidence, unusual
 site or typo of tumor or early onset
  Under  today's proposed methodology
 for Tier n carcinogens, the Group C
 carcinogen data maybe used in
 developing a Tier n value, where the
 data are sufficient (i.e., enough data is
 available to conduct a quantification,
 yet is still limited based on Tier I
 requirements, see section H.l of
 appendix C to part 132). Readers are
 referred to the Human Health TSD for a
 more detailed discussion on the amount
 of data neoded to conduct a
 quantification.
  Chemicals are classified as possible
human carcinogens (identified as Group
 C under the present EPA cancer
classification scheme) for many reasons,
including the following:
   1. Carcinogenicity has been
 documented in only one test species
 and/or only one cancer bioassay and the
 results do not meet the requirements of
 "sufficient evidence;"
   2. Tumor response is of marginal
 significance due to inadequate design or
 reporting;
   3. Benign but not malignant tumors
 occur with an agent showing no
 response in a variety of short-term tests
 for mutagenicity; and
   4. There are responses of marginal
 statistical significance in a tissue known
 to have a high or variable background
 rate.
 The chemicals which fell under these
 four categories of Group C theoretically
 may be as potent or dangerous to
 humans as known human carcinogens
 (identified as Group A under the present
 EPA cancer classification scheme) or
 probable human carcinogens (identified
 as Group B under the present EPA
 classification scheme) but have not been
 as well or extensively tested with regard
 to both human and animal studies. For
 these reasons, the proposal today
 requires that Tier I criteria be set for
 those types of Group C chemicals which
 are weU characterized and supported by
 a well-conducted study. For those
 Group C chemicals in which the cancer
 study (or studies) indicate(s) a
 significant increase of cancer in test
 animals but are limited by either: a
 marginal statistical correlation between
 chemical and tumors due to high
 control tumor incidence, a weak dose-
 response relationship, or an incidence
 of benign tumors rather than malignant
 tumors, Tier H cancer values shall be
 derived. If a cancer quantification
 cannot be conducted due to lack of data
 (number of test animals, and or only one
 dose group of animals has responded,
 making it impossible to determine a
 slope factor) then the chemical must be
 assessed on a noncancer basis and a Tier
 I or n criteria or value (HNV) should be
 developed, if available data exists. An
 option, which EPA requests comments
 on, is whethe? a Tier n value could be
 set for an unquantifiable Group C
 chemical. For instance, benign tumors
 or other precursors to malignant tumors
 such as hyperplastic nodules or
 peroxisome proliferation could be
 quantified (in the cases of benign
tumors) or used as a sensitive pre-cancer
 endpoint to set a value.
  The proposed Great Lakes Guidance
differs from the existing 1980 National
Guidelines, in that all possible
carcinogens (Group C) are not being
treated similarly. The 1980 National
Guidelines required the development of
criteria based on cancer, risk levels of
 10 ~5 to 10~7 for all Group C
 carcinogens. Today's proposal is
 distinguishing Group C carcinogens by
 the amount of data present and the
 ability to'quantify the cancer risk.
   In addition, the Great Lakes proposed
 Guidance differs from the policies of
 some parts of EPA with regard to its
 treatment of Group C chemicals. Under
 the Safe Drinking Water Act, for Group
 C contaminants, the Maximum
 Contaminant Level Goal (MCLG) is
 usually based on the RfD approach
 when sufficient non-carcinogenic data
 are available. An additional one-to-ten
 fold safety factor is used to account for
 possible carcinogenicity. The resulting
 MCLG can then be compared to a MCLG
 derived using a cancer risk assessment
 approach if the cancer data are
 quantifiable. These comparisons are
 made to ensure that there are no large
 discrepancies in the numbers derived
 using both approaches. To date, no large
 discrepancies have occurred. If adequate
 data are not available to determine an
 RfD, then the MCLG is set at the 10'~ s
 to 10 ~6 excess cancer risk level where
 such quantification is appropriate.
   EPA under the Federallnsecticide,
 Fungicide and Rodenticide Act (FIFRA)
 examines the risk for Group C
 contaminants using both an RfD
 approach and quantification of cancer
 risk using the cancer potency. When
 using the RfD method, EPA does not
 add an extra uncertainty factor to
 account for possible carcinogenicity in
 its application of FIFRA. However, EPA
 does limit the use of the chemical (i.e.,
 cannot be used as a food additive) when
 derived under the RfD method. Either
 method may be an appropriate method
 for risk management decisions,
  EPA specifically requests comments
 on: the procedures proposed today for
 derivation of Tier I criteria and Tier E
 values for possible carcinogens ("Group
 C"); and the alternative of using an
 additional uncertainty factor (up to 10)
 on a noncancer endpoint for Group C
 chemicals to provide protection from
•possible carcinogenicity (a HNV
 calculated with an extra UF of 10 to
 protect against possible carcinogenicity
 would result in protection from both
 cancer and noncancer endpoints); and
 the alternative of deriving criteria and
 values for Group C only through
 noncancer assessments without an
 added uncertainty factor for possible
 carcinogenicity.
  b. Non-carcinogens. For non-
 carcinogens, there is also a distinction
 between Tier I and Tier II. Human ,
 Noncancer Values (HNVs) for the Tiers
 are again distinguished  on the basis of
 the available database. All relevant and
 available data must be considered. The.:,

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                 Federal Register- / Vol. 58, No. 72 / Friday, April 16,, 1993 / Proposed Rules
                                                                    20873
 minimum acceptable data base for
 derivation of a Tier I criterion is at least
 one.well conducted (see section; IT of the
 Human Health TSD—Minimum Data
 Requirements, Appropriate Study
 Design and Data Development, for a
 discussion of a ''well conducted study")
 subchronic mammalian study. The
 ^duration of the study must be at least 90
 days in rodents, or 10 percent of the   ,
 lifespan of other appropriate species.
 The'studies ideally should establish a
 dose response, i.e., a frank-effect level
 (PEL)—a level at which severe adverse
 effects or death occurs—as well as a
 LOAEL and NOAEL; Generally, the .
 minimum data point used for decision
 making is a NOAEL; however, onev
 exception to the requirement of ising
 only a NOAEL is the use of a LOAEL
 involving mild,  reversible effects, which
 may be considered acceptable from
 longer term studies where a NOAEL    ,
 may not be available. (For example, a
 slight decrease in body weight may be
 considered a minimal LOAEL 01    '
 possibly a NOAEL depending on other ,
 observed effects in a study, and whether
 the effects can be linked to the chemical
!". in question.)     •
   For Tier n values, as with Tier I
 criteria, all relevant available data must
 be considered. In developing Tier n
 values, the absolute minimum  ;
 acceptable database is  a well conducted
 repeated dose mammalian study of at
 least 28 days. The 28 day study was
 chosen as a minimally acceptable test
 that can yield sufficient information
 upon which to derive a Tier n value. It
 is also' a study length used by the
 Organization for Economic Cooperation
 and Development in their guidelines for
 testing the safety of chemicals and by  .
 EPA's Office of Prevention, Pesticides
 and Toxic Substances to evaluate
 toxicity of chemicals. In some cases, the
 ' most critical effect of a chemical will
 take place well before  a 90 day exposure
 that is, the acute effects of the chemical
 are of greatest .concern. When high
 • levels of a chemical over a short-term
 exposure can cause adverse  effects, the
 results of a 90 day or longer-term study
 at low doses may riot identify the .-•
 critical acute effect identifiable after an
 acute high-dose test. In these cases, even
 in deriving a Tier I criteria, the most
 sensitive endpoint must take
 precedence over a less stringent 90 day
 test result.             -,..."
   Results from short-term studies can be
 correlated to longer-term study results,
 albeit to a limited degree (Weil and
 McCollister, 1963, Relationship  /
 Between Short- and Long-Term Feeding
 Studies in Designing an Effective
 Toxicity Test, Agricultural an Food  ,
 Chemistry. 11(6): 486-491). Weil and .
 McCollister were able to predict
 minimal effect levels for tworyear   ,
 exposures from short-term test results. :
 Their assessment was not endpoint-
 specific, but rather correlated to the
 ratios between duration and any adverse
 effect. •;        ,
   Again, in using a 28 day study, the
 study should ideally produce a dose  -
 response curve, including a FEL,
 LOAEL and NOAEL. (EPA  ,
 acknowledges that in many studies only
 a LOAEL and NOAEL will be observed, ,.
 and in some cases only one or the
 other.) However, the minimum
 acceptable data point for decision
 making on such short term exposure
 data must be a NOAEL. In addition, the
 study ideally should be designed to
 observe all possible systemic effects and
 include examinations for             \
 histopathblogy. EPA does not believe
 studies which just.examine behavioral
 changes or body weight changes would
 be acceptable as the basis for developing
 a Tier n value. Data from studies of ..'.'"
 longer duration (greater than 28 days)
 and LOAELs from such studies may be
 more appropriate in some cases for
 derivation of Tier n values. Use of a
 particular LOAEL should be supported
 by the following information: Severity
 of effect, quality and duration of the
 study.  EPA does not want-to preclude
 the use of LOAELs from studies slightly
 longer than the required  28 day studies
 (such as 30 day tests) if the LOAEL from
 such a study represents an effect which
 is mild, reversible, close to a probable
 or actual NOAEL, and representative of
 effects observed over chronic exposures.
   When the Tier n methodology is used
 to derive a HNV, an additional
 ' uncertainty factor of up to .10 maybe
 applied in deriving the ADE. This factor
 is intended to account for the
•'• difficulties in extrapolating from a short
 term NOAEL to a long-term NOAEL.
 Structure activity relationships (SARs),
 and all other available data on the'
 chemical should be used to determine  .
 the appropriate additional uncertainty
 factor. An SAR compares a chemical
 with substances that have structural
 similarities in order to predict whether
 the chemical might cause similar toxic
 . effects. The EPA Office of Prevention,
 Pesticides and Toxic Substances has
 developed an SAR approach for
 assessing the hazards of chemicals for
 which very little data exist. For details
 on this EPA approach, refer to .two
 journal publications: Auer, C., J.
 NabholzandK. Baetcke, 1990, Mode of
 Action and the Assessment of Chemical
. Hazards in the Presence of Limited Data:
 Use of Structure-Activity Relationships
  (SAR) under TSCA, Section 5, Environ.
 Health Persp., Vol. 87, pp. 183-197; and
 Auer and Gould, 1987, Carcinogenicity
 Assessment and the Role of Structure
 Activity Relationship (SAR) Analysis
 under TSCA Section 5, Envir. Carcinp.
 Revs. (J. Enviro. Sci. Hlth.) C5(l), 29-71.
  , The issue; of whether to propose a Tier
 H HNV human health methodology was
 one of considerable debate within the
 Initiative Committees. In particular,
 there was concern that use of a 28 day,
 or other subacute study with the'use of
 additional uncertaintyfactors, may
 result in underprotective values, since
 such short-term studies typically do not
 reveal evidence of other possible •
 adverse effects resulting only from
 longer-term exposure. EPA requests
 comments on this issue. EPA also
 requests comments on whether the use
 of a Tier n human health methodology
 is appropriate and on the specific
 approach proposed in today's notice. .
 EPA is particularly interested in other
: possible and practical Tier n
 methodologies, or in practical options to
 the use of a Tier II methodology to
 address lack of optimal well-developed'
 databases. Finally, EPA invites,:
 comment on whether or not even
 shorter term studies, such as 14 day
 studies, might effectively be used in a'.'•.-.'
 Tier n HNV approach.         ,    -
   EPA is now conducting research on
 the correlation of short-term study
 results to long-term chronic test results.
 This research will entail an extensive
'evaluation of several scientific databases
 which include 14 day, 28 day, 90 day
 and two year study results. Data from
 these studies will be analyzed   ;
 qualitatively and quantitatively (a
 number of options are being explored,  .'.
 such as categorical regression, analyses.
 or analyses of ratios or specific
 endpoints) to determine if shorter-term
 study results will adequately predict
 toxic effects associated with long-term
  exposures. For example, one proposed
  option is to'divide 28 day NOAELs (or
 LOAELs) by a duration scaling factor to
  obtain a corresponding chronic value
,  and then apply an appropriate   ;
  uncertainty factor. These results could
  then be compared to short-term and
  long-term data for other chemicals to
" validate the predicted outcome of a
  particular model.              .   .  -
   If the findings of EPA research appear
  relevant to today's proposed Tier H
  methodology, EPA expects to issue a
  notice of availability of the results of
  this research for consideration by^the
  public in commenting on today's rule.
    One option which EPA is considering
  as an alternative qr.supplement to'the
  proposed Tier II approach is to screen  .
  a chemical initially using EPA's SAR
  evaluation approach (see Auer, C., J.
  Nabholz arid K. Baetcke, 1990, Mode of

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 20874
    Federal Register / Vol.  58, No. 72 /^Friday, April  16, 1993 /Proposed Rules
 Action and the Assessment of Chemical
 Hazards in the Presence of Limited Data:
 Use of Structure-Activity Relationships
 (SAR) under TSCA, Section 5, Environ.
 Health. Porsp. 87:183-197. EPA requests
 comments on other methods of
 conducting SARs. The SAR approach
 would ba used to determine whether a
 related chemical could serve as a
 surrogate for the chemical for which
 there Js little or no data. This approach
 could he used to either set a Tier II
 value based on surrogate chemical data
 or to justify further data development,
 as described below. EPA requests
 comments on the appropriateness of
 using surrogate chemicals to develop
 Tier n values.
  For example, if an SAR indicates that
 a chemical is somewhat similar in
 structure to a class of chemicals which
 are extremely toxic or potent
 carcinogens, States could develop a Tier
 II value if a clear surrogate chemical
 existed or could be required to conduct
 or require permittees to conduct
 additional toxidty testing, such as the
 28 day study now required by Tier n
 and/or additional studies on
 reproduction, neurotoxicity, or even
 longer-term studies as if a surrogate
 could not ba identified. The intent of
 this alternative Tier n approach would
 be to require testing only for those
 chemicals of concern for which a
 surrogate cannot be determined and to
 avoid unnecessary testing for chemicals
 of very low health concern, as indicated
 by SAR. EPA requests comments on the
 feasibility and on the scientific merit of
 such an alternative option.
 7. Criteria Derivation

  The Tier I human cancer criteria or
Tier n value is calculated as follows:
    HCV =
   RADxBW
WC+(FCxBAF)
Whero:
  HCV=Huinan Cancer Value in
milligrams per liter (mg/L).
  RAD=Risk associated dose in
milligrams toxicant per kilogram body
weight per day (mg/kg/day) that is
associated with a lifetime incremental
cancer risk equal to 1 hi 100,000.
  BW=Body weight of an average
human (BWs70kg).
  WC=average per capita water
consumption (both drinking and
Incidental exposure) for surface waters
classified as public water supplies '
(WC
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                   Federal Register /Vol. 58, No, 72 I Friday,  April 16, 1993  / Prpposed Rules
                                                                   20875
   proposal that differs from the current
   National guidelines.

   D. Comparison With the Clean Water
   Act and Great Lakes Water Quality
   Agreement
     As mentioned earlier in section ffl.D
   (Aquatic Life), the CPA states that the
   proposed Guidance shall be no less
   restrictive than the provisions of the.
   Glean Water Act and National Water
   Quality Criteria and Guidance. The CPA
   also specifies that the Guidance is to  _
  .conform with the objectives and
   provisions of the Great Lakes Water.
   Quality Agreement. The discussion
   below addresses coriformance of the  '".'.
 .  -proposed human health methodologies
   and criteria with these requirements.

   1. Tier I Human Health Criteria/| :
   Methodology                      .
   ,  a. Comparison With the Clean Water
   Act. Under the authority of section
   304(a)(l) of the Clean Water Act, EPA
   established the 1980 National
   Guidelines, to be used in deriving
   National human health criteria. EPA
   believes that although today's proposed
   Tier I,human health criteria     ;
   methodology and the criteria proposed
   thereunder are not identical to the 1980
   National Guidelines and individual
   National criteria in all details, they are
   generally no less restrictive.
     First, as discussed above in this
    section of the preamble, EPA is  ,
   proposing in today's notice Tier I
   human health criteria for 20 pollutants
    for which National criteria exist. These
   .pollutants include a broad section of -
    chemicals of concern proposed by the
    Initiative Committees to test the
    proposed methodology. Although
    today's proposal includes only these 20
    pollutants while National human health
    criteria are currently available for over
    90 pollutants, EPA believes that this  .""
    approach will not result in less stringent
    levels of control. This is because under
    the implementation .scheme proposed
    today, Great Lakes States would be  ''
    required to derive criteria and values for
'...   these pollutants and for all other
    pollutants except those listed in Table 5
    of part 132 whenever sufficient data
    exist to  meet Tier I or Tier H minimum
    data requirements and the State
   . determines that it is necessary to control
    these pollutants. Thus, the scope of the
    proposal in terms of pollutants covered
>   is  actually broader than the.current
    National Guidance.          ,
      Furthermore, because the Tier I
    criteria  for human health proposed
    today assume a, higher fish consumption
    rate than the National criteria arid use
    BAFs rather than BCFs to calculate fish
    tissue residues, the proposed numeric
criteria 'are equivalent to or more
restrictive than the current National   -
criteria, with one exception. The      :
proposed drinking water criterion for  ,
cyanide is slightly higher (i.e., less
stringent) than the Nationalcyanide
criterion. The proposed cyanide Tier I
human health criteria for drinking and
nondrinking waters are based only on
npncancer effects. Although both
today's proposed cyanide criteria and
the National cyanide criteria are based
bri the same study, there.is a small
difference between the criteria due in
part to the different fish consumption
rate and in part to rounding of the ADE _
and the criterion itself. EPA requests
comment on the option of promulgating
the drinking water National criterion for
cyanide.
  Additional Guidance provisions and
measures will further enhance
consistency with the Clean Water Act.
Specifically, EPA is proposing
elsewhere in today's Guidance a
procedure to review State-calculated .
Tier I criteria for consistency with the
Tier I methodology. In addition, the
proposed Guidance  contains a
requirement for State adoption as   ;
standards of any Tier I criterion that
EPA publishes in the future. Thess
provisions are intended to ensure
consistency with the Clean Water Act
and to promote consistency in
regulation throughout the Great Lakes
System,               ~;-
   la. Conformance With the Great Lakes
Water Quality Agreement. For the
reasons stated hi section IH.D (Aquatic
Life) of this preamble, EPA believes that
today's proposal conforms to the""
General Objectives of the Agreement
regarding the elimination or reduction
of discharges into the Great Lakes
System. For the 20 pollutants for which
Tier I human health criteria are being .
proposed in today's notice, the ,
Agreement does not specify numeric
water quality criteria for the protection
of human health. The Agreement does
specify levels in the edible portion of
fish that should not be exceeded for the
protection of human consumers of fish
for heptachlor/heptachlor epoxide and
 lindane.                          :
   As stated earlier,  EPATjelieves  that
 the Guidance criteria and methodologies
proposed herein should serve as a basis
to amend and supplement the Great
Lakes Water Quality Agreement, as
• proposed by the Initiative Committees.
 2. Tier H Criteria Methodology   .. •:
   a. Comparison With the Clean Water
 Act. EPA's current guidance and
 regulations for water quality standards
 contain nothing directly analogous to
 the two-tier approach proposed today
for human health. States currently have
very broad discretion when regulating
pollutants that are subject only to
narrative criteria. EPA believes that
today's proposal is more rigorous than  ;
the current National requirements in   •
this area because the proposed Tier II'
method derives generally more
conservative values for non-cancer -  -• •  .
criteria to compensate for greater    ••-••"
.uncertainty in the database. Based on
studies done to date, EPA expects that
Tier H values "will be more  stringent
than existing standards for these
pollutants in most cases. Further, this
approach imposes a structure to the
process of translating narrative criteria
into numeric values. Finally, today's
approach will result in more uniform
control of pollutants lacking National
standards in the Great Lakes States.
   b. Conformance With the Great Lakes
Water Quality Agreement. EPA believes '
that the Tier H methodology is
consistent with the General Objectives
of the Agreement..Moreover, it serves as
a translator mechanism of the Spates'
narrative water quality standards. The
Tier n methodology will enhance
regulatory efforts in the Great Lakes
basin, will serve its purpose of
promoting consistency in the regulation
 of toxics in the Great Lakes basin, and
is therefore also in conformarice with
the Agreement.    •.•._-'     '
E. Review of the GreaiLakes Guidance
 by the EPA Science Advisory Board
 (SAB)  ,          ..'.-"..
   The SAB reviewed the Human Health
 proposal for the Great Lakes Guidance
 presented today. Their complete
 findings and opinions are reported in an
 EPA document entitled, "An SAB
 Report: Evaluation of the Guidance for  .
 the Great Lakes Water Quality
 Initiative", EPA-SAB-EPEC/DWC-93-
 005, December 1992, which is available
 in the-administrative record for this
 rulemaking. '
   The SAB commented that the tiered
 approach offers a mechanism for.
 improving EPA's data base to reduce
 uncertainties  and to develop
 appropriate data for GLWQI compounds
 for which National criteria do not exist.
 EPA agrees with this comment. The
 intent of the two-tiered approach was to
 develop water quality standards and
 permit values for chemicals of concern
 and to also promote the development of
 data needed to complete data bases in
 developing criteria.           ,
   The SAB also commented that the
 tiered approach has the potential to be  .
 frivolously applied to chemicals
 regarded as safe. EPA believes that if the
 proposed Great Lakes Guidance were
 applied literally, without  applying basic

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 20876
Federal Register / Vol.  58,  No. 7~2  I  Friday, April 16,  1993 /Proposed  Rules
 toxicologic judgement, there is the
 potential for misapplication. However,
 the Oared approach is being applied to
 chemicals which are considered
 hazardous in the basin, of which there
 are approximately 140. It is unlikely
 that criteria will be developed for
 chemicals such as sugar or fatty acids.
 In addition, the Great Lakes Guidance
 does not establish a rule that criteria
 will be developed for all chemicals for
 which data exist. Criteria or values are
 to be developed for the list of 140 which
 are deemed "chemicals of concern" in
 the Great Lakes basin.
   Additionally, the SAB noted that it is
 not possible to argue that Tier I
 chemicals protect against reproductive/
 developmental or carcinogenic
 endpofnts because the minimum data
 baso doss not require data appropriate
 to estimate such nazards. EPA's
 response is that it is true that the Tier
 1 requirements do not require, at a
 minimum, all data for all possible
 effects. However, the goal of Tier I is to
 evaluate all available data before
 developing a HNV or HCV. In addition,
 the Groat Lakes Guidance attempts to
 track very closely with established EPA
 cancer and noncancer guidelines for
 evaluating data and establishing safe
 daily levels. Presently, if the only
 existing data is noncancer, subchronic
 data (0.g,, 90 day study), EPA allows
 development of an RfD as long as
 uncertainty factors are used to
 compensate for lack of reproductive/
 developmental data.
   The use of uncertainty factors does
 not take the place of well-run
 reproductive/developmental studies. It
 merely assumes that if a reproductive
 study was conducted it may result in a
 slightly lower NOAEL or LOAEL.
 Henca, the practice of using an extra
 uncertainty factor of 3 for lack of
 reproductive/developmental data by the
 RID work group.
   With regard to an adjustment in Tier
 I for a lack of carcinogenic data, Tier I
 cancer criteria are only developed if the
 chemical is considered a Group A, B, or
 C carcinogen by EPA's CRAVE group.
 When there is a lack of carcinogenic
 data, a Tier ft value may be developed
 if tho chemical is considered a Group C
 carcinogen and enough data is available
 to develop a ql*.
  Placing a chemical lacking in
 reproductive/developmental and/or
 carcinogenic data in Tier H may help to
 generate such data but would also
 present an inconsistency with
 previously promulgated EPA drinking
 water standards. Many compounds
regulated under the Safe Drinking Water
Act aro Group D chemicals: Not enough
data available to make a carcinogenicity
                      evaluation. EPA acknowledges that it is
                      important to strike a balance between  ;
                      the need to regulate a chemical, if it is
                      regarded as a human health concern,
                      and the need to complete the
                      toxicological data base for a particular
                      chemical.
                        The suggestion that well-
                      characterized Group C chemicals that
                      arguably do not pose a cancer threat be
                      regulated on a noncancer basis is an
                      option which has been raised in the
                      GLWQI proposal.
                        The SAB further stated that conflict
                      may arise if criteria are developed for
                      disinfectants and disinfection by-
                      products. EPA realizes there are
                      potential conflicts related to the
                      regulation of chlorine and chlorinated
                      by-products. However, if disinfection
                      by-products are toxic to humans,
                      aquatic organisms and/or wildlife, then
                      industrial or municipal discharges of
                      chlorine, chloramines or by-products
                      should be controlled by Great Lakes
                      Initiative criteria. In many cases,
                      disinfection of wastewater may be
                      necessary to maintain a use designation
                      (e.g., swimmable). However, if
                      chlorination results in the loss of fish,
                      wildlife and a fishable use designation,
                      the reduction of chlorination by-
                      products will be required through
                      GLWQI criteria. Clearly, a balance will
                      have to be struck in the development of
                      criteria which serve as the basis for
                      conflicting designated uses.
                       The SAB also commented that the
                      GLWQI Guidance may conflict with
                      existing National guidelines and
                      criteria. EPA acknowledges the potential
                      for confusion. In reviewing and revising
                      the 1980 methodology for developing
                      human health criteria, EPA is closely
                      examining the requirements of the
                      GLWQI. However, it must be noted that
                      the GLWQI Guidance is based on  the '
                      combination of basic National
                      methodology guidelines for conducting
                      risk assessment with regional exposure
                      assumptions.
                       With regard to thresholds for
                      carcinogens, the SAB stated that the
                      method by which low dose
                      extrapolation is conducted should not
                      be viewed as simply threshold or
                      nonthreshold carcinogens. Mechanisms
                      of action should be considered. The
                      Human Health TSD presents text from
                      EPA's 1986 cancer guidelines which
                      recommends the evaluation of
                      mechanistic cancer and
                      pharmacokinetic data in assessing
                      carcinogens and models to be used in
                      quantifying the  potency. The TSD
                      includes  a level of subtlety with regard
                      to carcinogenicity not present in the
                      regulation and preamble.
   Further, the SAB noted that with
 regard to a Minimum Data Base, Tier I
 and II .should develop separate values
 for Group C chemicals depending on thrv
 available data. Tier I should only be
 reserved for Group C chemicals which
 have been adequately tested and which
 do not support the notion that they are
 probable human carcinogens. Tier n'
, should include chemicals which have
 been tested in only one species. EPA's
 response to this comment is that the
 GLWQI Guidance allows for the
 development of Tier I or II values for
 Group C chemicals depending on the
 available data. The distinguishing
 factors focus on whether enough data
 exist to conduct a potency estimate and
 whether a dose response actually exists.
 To restrict Tier I to only those chemicals
 which have been adequately tested may
be too limiting and may ultimately
result in under protecting human
health. EPA  acknowledges that there
may be cases where a chemical is so  •
well tested that it does not appear to be
a possible human carcinogen. To
address this  situation, EPA has
proposed the option of regulating some
Group C chemicals using a noncancer
endpoint with an additional uncertainty
factor to account for possible
carcinogenicity.
  Another SAB comment states that
with regard to the Tier II concept, a 28
day test may not detect some human
health effects especially for chemicals
with long latency periods. EPA realizes
the use of a 28 day NOAEL may be
marginal for detecting some chronic
human health effects and is conducting
research in this area over the next year
to determine whether the 28 day data
are a reliable minimum data point. EPA
is also restricting the development of
Tier n values to results of 28 day studies
which have examined systemic effects
and ideally provided some
histopathological examination.   • . .
  The SAB also commented that with
regard to the use of a Relative Source
Contribution, an 80 percent RSC  is not
supportable because it is within the
rounding error on the calculations of the
overall exposure. In addition, other
sources should already be compensated
for in the calculation of fish
consumption. EPA's response to this
comment is that the use of an RSC was
incorporated to account for other
sources that may contain the chemical
besides fish.  In the case of pesticides,
for example,  many agricultural or dairy
products may contain a pesticide in
quantities large enough to make the RSC
concept important. It is true that the 80
percent may be within the rounding
error for the calculation of the overall  .
exposure, but the intent was to redu ^o

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                  Federal Register  /Vol. 58,  No.  72 /; Friday, April 16, 1993  / Proposed Rules
                                                                          20877
 the criteria by 20 percent in the case of
 a bioaccumulatiye chemical. In essence,
 the 20 percent reduction serves as a
 safety factor to protect against other
 possible sources of the chemical which
 have not been explicitly accounted for.
 This is the same process (setting a :
 default RSC of 20 percent when data on
 other sources does not exist) which is -
 done in developing drinking water
 standards, which  has been approved by
 the SAB in its review of drinking water
 standards.             .    ;     :

 F. Literature Citation? ;   .
   .The following documents were
 referenced in the  sections above. These
 documents  are available in the    -
 administrative.record for this
 rulemaking.      ;    :~~        '     ,
   Auer, C,; and D.Gould. 1987.    ,  ...'..'
 Carcinogeriicity Assessment and the Role of .
 Structure Activity Relationships (SAR)
 Analysis under TSCA Section 5. Envir.
 Carcino. Revs. (J. Enviro. Sci. Hlth.) C5 (1)
. 29--71.                -
   Auer, C., J. Nabholz and K. Baetcke. 1990.
 Mode of Action and Assessment of Chemical
 Hazards in the Presence of Limited Data: Use
 of Structure-Activity Relationships (SAR)
 under TSCA, Section 5. Environ. Health"
 Persp. Vol. 87, pp. 183-197.        ,
,   Bogen, K.T., B,W. Colston, Jr., and L.K.
 Michieao. 1992. Dermal Absorption of Dilute
 Aqueous  Chloroform, Trichloroethylene, and
 Tetrachloroethylene in Hairlee Guinea Pigs.
 Fundam.  Appl. Toxicol, 18:30-39.      ,
   Calabrese, E.J. 1985. Uncertainty factors
 and interindividual variation. Reg. Toxicol.
 Pharmacol. 5:190-196.
   Cantor, K.P., R. Hoover, P. Hartage, 1987.
 Bladder Cancer, Drinking Water Source, and
 Tap Water Consumption: A Case Control
 Study. I, National Cancer Institute.
 79{6):1269-1279,
   Connelly, N.A.,T.L; Brown and B.A.
 Smith, 1990, New York Statewide Angler
 Survey, 1988, "New York State Department of
 Environmental Conservation, Albany, NY.
   Crump, K.S., D.G. Hbel, C.H. Longley and
 R. Peto. 1976. Fundamental Carcinogenic  >
 Processes and Their Implications for Low
 Dose Risk Assessment. Cancer Res. 36:2973-
 2979.
   Dourson, M., and J. Stara. 1983. Regulatory
 History and Experimental Support of
 Uncertainty (Safety) Factors. Regulatory
 Toxicology and Pharmacology. 3:224-238.
   Doursbn, M.L., L. Knauf and J.C. Swartout
 1992. On reference dose (RfD) and its
 underlying tpxiclty,data base.'(In press).   ,
 '-. Dourson, M.L-. 1993.- Modifying uncertainty
 factors for noncancer endpoints. Advanced
 Topics in Risk Assessment. Society of
 Toxicology Annual Meeting, New Orleans,
, March 14,1993".
   Fiore, B.J.  et al., 1989. Sport Fish
 Consumption and Body Burden Levels of
 Chlorinated  Hydrocarbons: A Study of
 Wisconsin Anglers, .Archives of
 Environmental Health, 44:82-88.   ;
    Hartley, W.R. and E.V. Ohanian. 1988. The
 use of short-term toxicjty data for prediction
 of long-term health effects. Trace'Substances
 in Environmental Health—XXII, D.D.
 Hemphil, Ed. University of Missouri,1 p. 3-12.
  Hattis, D., L. Erdreich and M. Ballew. 1987.
 Human variability in susceptibility to toxic
 chemicals—A preliminary analysis of
 pharmacokinetic data from normal
 volunteers. Risk Anal. 7(4): 415-426.
  Hattis, D. and S. Lewis. 1992. Reducing
 uncertainty with adjustment factors. The
 Toxicologist. 12(1):23 Abstract 1327.
  Howa, R.B..K.S. Crump and C. Van
 Landingham. 1986. Computer Program to
 Extrapolate Quantitative Animal Toxicity
 Data to Low Doses. Prepared for EPA under
 subcontract #2-251Ur2745 to Research
 Triangle Institute.
  International Agency for Research on
 Cancer (IARC).  1987. LARC Monographs on
 the Evaluation of Carcinogenic Risks to    •.
 Human, Preamble, Final Draft, January, 1987.
 World Health Organization, Lyon, France.
  Lewis, S.C., J.R. Lynch and A.I. Nikiforov.
 1990. A new approach to deriving
 community exposure guidelines from no-'  "
 observed-adverse-effect-levels. Reg. Toxicol.'
 Pharmacol. 11:314-330.   .-_"   '
  National Academy of Sciences. 1977.
 Drinking Water and Health. Vol. 1. National
 Academy Press, Washington, DC.
  Renwick, A.G. 1991. Safety factors and    .
 establishment of acceptable daily intake.
 Food Additives and Contaminants. 8(2): 135-
 150.
  Renwick, A.G. 1993. D,ata derived safety
 factors for the evaluation of food additives
 and environmental contaminants. (In press).
  Travis, C.C.fand R.K. White. 1988.
 Interspecies Scaling of Toxicity Data. Risk
 Anal. 8:119-125. :    .
   U.S.Environmental Protection Agency,
 1980. Water Quality Criteria Availability,
 Appendix C Guidelines and Methodology
 Used in the Preparation of Health Effects
 Assessment Chapters of the Consent Decree
 Water Quality Criteria Documents. Federal  "
 Register, Vol. 45, November 29,1980, 79347-
 79357.
   U.S. Environmental Protection Agency.
 1986. Guidelines for Carcinogen Risk
 Assessment. Federal Register, Vol. 51, No.
 185, Septgaiber 24,1986,33992-34002.
   U.S. Environmental Protection Agency.   ;
 1986b. Guidelines for the Mutagenieity •
 Assessment Federal Register, Vol. 51, No.
 185, September 24,1986, 34006-34012.
   U.S. Envh-onmental Protection Agency.   -
 1987. IRIS. Support Documentation.
 Environmental Protection Agency/600/8r86/
 32a.  •      .    : , •  :       ..'.-•   -•-
   U.S. Environmental Protection Agency.   „
 "1989a. Exposure Factors Handbook.
 Washington, DC, Office of Health and
 Envh-onmental Assessment, Exposure
 Assessment Group. EPA/600/8-89/043.
   U.S. Envh-onmental Protection Agency.
 1989b. National Primary and Secondary
, Drinking Water Regulations, Proposed Rule.
 Federal Register, Vol. 54, No. 97, May 22,
 1989, p. 22069.   ;  ...                ,
   U.S. Environmental Protection Agency.   "'
 1989c. Proposed Amendments to Agency
 Guidelines for Health Assessment of Suspect
 Developmental Toxicants. Federal Register,
 Vol. 54, p. 9386, March 6,1989.
   U.S.. Environmental Protection Agency.
 1991. Proposed Amendments to Agency    „
 Guidelines for Health Assessments of ;   ,
.Suspect Developmental Toxiqants. 56 FR
 63798 (December 5,1991).'
  U.S. Environmental Protection Agency.
 1991, Amendments to the Water Quality   '
 Standards Regulation to Establish the   •
 Numeric Criteria for Priority Toxic Pollutants
 Necessary to Bring All States into
 Compliance with Section 3Q3(c)(2)(B).
 Federal Register, Vol.- 56, November 19,
 1991,58420-58378.
  U.S. Environmental Protection Agency.
 1991. National Primary Drinking Water
 Regulation—Synthetic Organic Chemicals
 and Inorganic Chemicals. Federal Register,
 Vol. 56, January 30,1991.     ,           '.
  U.S. Environmental Protection Agency.  -.'
 1992.,Draft Report: A Cross-Species Scaling
 Factor for Carcinogenic Risk Assessment '
 Based on Equivalence of Mg/Kg3'4 Day. 57 FR
 24152, June 5,1992.               '
  U.S. Envuxjnmental Protection Agency.   •
 1992. Reference Dose: Description and Use hi .
 Health Risk Assessment. IRIS. Online: Intra-
 Agency Reference Dose Work Group, Office
 of Health and Environmental Assessment,
 ECAO, Cincinnati, OH.
  Weil, C., and D. MeCollister. 1963.
 Relationship .Between Short- and Long-Term
 Feeding Studies hi Designing, ah Effective
 Toxicity Test. Agricultural and Food
 Chemistry. 11(6):486-491;          •
 ' West, P.C., etal. 1989. Michigan Sport
 Angler Fish Consumption Survey: A Report
 to me Michigan Toxic Substance Control
 Committee, University of Michigan Natural
 Resource Sociology Research'Lab. Technical
 Report #1, Ann Arbor, Michigan, MDMB
 Contract #87-20141.   '•-"•••'.'
  Zielhuis, R.L. and F.W. van der Kreek.
 1979.-The use of a safety factor hi setting
 health based permissible levels for  ' ~.
 occupational exposure. Int. Arch. Occup.
 Environ. Health. 42:191-201,

,VI. Wildlife

 A. Introduction      '         .._-"'•'      '
   For the purposes of the proposed
 Great Lakes Water Quality Criteria
 Guidance, "wildlife" is defined as
 species in both Taxonomic Classes,
 Aves and Mammalia (birds and
_ mammals). The proposed Guidance for
 deriving wildlife criteria and values is
 included in appendix D of the proposed
 Guidance. The Technical Support
 Document for Wildlife Criteria is an
 appendix to this preamble. The actual,
 criteria documents which provide the .
 data and the derivation of the individual
 criteria are available'in the
 administrative record for this
 rulemakihg. EPA's expectations for
 determining whether a State's water ,
 quality standards are consistent with  the
 Guidance are set forth in § 132.6 of the
 proposed Guidance.
   In the case of toxic chemicals;
 terminal predators such as otter, mink,
 gulls, terns, eagles, o'spreys and
 kingfishers are at risk from !••;   .'  ,
 contaminants in Great Lakes waters, to
 addition to direct exposure via drinking

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  20878          Federal Register / Vol. 58. No. 72 / Friday, April 16, 1993 / Proposed Rules
 tho water, species at higher trophic
 levels are exposed to toxic substances
 through the food wob as the chemicals
 proceed upward via biomagnification.
 Contaminants which are almost
 undotectable hi lake water may be
 magnified hundreds of thousands of
 limes within the flesh offish and
 magnified still further in a carnivorous
 bird or mammal which consumes
 contaminated fish out of the Great
 Lakes.
   Because wildlife species are at the top
 of the food web, current criteria derived
 to protect fish, which live in the water,
 may be inadequate to protect high-level
 wildlife consumers of contaminated
 fish. Wildlife are especially at risk from
 chemicals which biomagnify because
 they era frequently exposed to very high
 levels of the contaminants since they
 redde at the apices of aquatic food
 webs. For this reason, emphasis was
 placed on selecting piscivorous wildlife
 spades (i.e., those which eat fish) for
 the derivation of wildlife criteria as
 representative of species likely to
 experience significant contamination
 through an aquatic food web. Wildlife
 species may also have unique metabolic
 pathways which make them more
 susceptible to the toxicity of a chemical
 than aquatic species.
   Research on wildlife species resident
 In tha Great Lakes indicates that wildlifd
 populations are threatened La areas of
 high contamination by toxic chemicals. •
 In the Great Lakes, reproductive
 impairment of numerous wildlife
 spacios has been correlated with the
 presence of PCBs, DDT and its
 metabolites, and other contaminants. In
 the 1960s, mink fed a diet of Great Lakes
 fish suffered complete reproductive
 failure. Detailed laboratory investigation
 revealed that the causative agent was
 PCBs in Great Lakes fish. The overall
 reproductive success of bald eagles is
 much lower along lake shore areas of
 the Great Lakes than  in inland nesting
 territories.
  There is additional discussion locatec.
 in the section I (Background) of this
 preamble on the impacts of toxic
 chemicals on wildlife in the Great
 Lakes. Numerous studies confirm the
 adverse effects of pollution on Great
 Lakes wildlife and support the need for
 water quality criteria formulated for
 their protection. It is because of the
 numerous impacts of toxic chemicals
 observed in wildlife in the Great Lakes
 and the inconsistencies among the Great
 Lakes States and Tribes in addressing
wildlife impacts, that the Steering
Committee, Technical Work Group, and
EPA agreed there was a need for
generation of separate wildlife criteria
as a part of the Great Lakes Water
 Quality Initiative (GLWQI). This
 provides the rationale for proposing
 specific wildlife standards in this
 Guidance.
   EPA has ample authority to develop
 criteria and methods specifically
 directed at protecting wildlife from
 threats originating in Great Lakes
 waters. Section 118(c)(2)(A) of the Clean
 Water Act requires EPA to develop
 numerical limits on pollutants in Great
 Lakes waters to protect wildlife as well
 as human health and aquatic life.
 Similarly, provisions of the Great Lakes
 Water Quality Agreement of 1978
 require the United States and Canada to
 protect wildlife. For example, Article HI
 of the Agreement established a "General
 Objective" of freeing the Great Lakes
 System from substances resulting from
 human activity that will adversely affect
 waterfowl.
   Moreover, several of the "Specific
 Objectives" for individual pollutants set
 out in Annex I of the Agreement also set
 limits which should not be exceeded in
 order to protect fish-consuming birds
 and animals. These are presented as fish
 tissue concentrations or water
 concentrations as follows: DDT and its
 metabolites in whole fish should not
 exceed 0.3 micrograms per gram (wet
 weight basis), the concentration of total
 PCBs in whole fish should not exceed
 0.1 micrograms per gram (wet weight
 basis), and the concentration of total
 mercury in whole fish should not
 exceed 0.5 micrograms per gram (wet
 weight basis). The "Specific Objectives"
 which present water concentrations
 which should not be exceeded for the
 protection of fish-consuming birds and
 animals are: the  total concentration of
 DDT and its metabolites should not
 exceed 0.003 micrograms per liter; and
 mirex and its degradation products
 should be less than detection levels as
 determined by the best scientific
 methodology available.
  Section 304(a)(l) of the Clean Water
 Act also authorizes EPA to develop
 criteria that protect wildlife for all
 waters of the  United States. As
 explained in more detail later in this
 section of the preamble to this rule, EPA
 has not yet issued any nationally
 applicable criteria targeted solely at the
 protection of wildlife. Rather, EPA
 incorporated consideration of wildlife
 impacts into the  1985 methodology for
 developing criteria for aquatic life
 (Stephen, et al,  1985).
  The proposed Guidance relating,to
wildlife criteria was developed as part
of the GLWQI. The Technical Work
Group and the Steering Committee are
collectively referred to within this
portion of the preamble as the
Committees of the Initiative. The
 Committees of the Initiative assigned
 the lead in developing an initial
 proposal for deriving criteria to protect
 wildlife for the Great Lakes Guidance to
 the State of Wisconsin. The procedure
 proposed by the Wisconsin Department
 of Natural Resources was modified
 through discussions in the Committees
 of the Initiative and modified and
 approved by EPA.
   In developing the methodology for
 deriving wildlife criteria for the GLWQI,
 the Wisconsin Department of Natural
 Resources, Bureau of Water Resources
 Management, obtained scientific
 guidance from participants in a one-day
 workshop (the Workshop) held in
 Madison, Wisconsin, November 8,1990.
 Wildlife research toxicologists and
 biologists representing academia, State
 governments, the U.S. Fish and Wildlife
 Service and EPA were invited to
 participate in the Workshop.
 Representatives of the regulated   .
 community were also present at the
 Workshop.

 B. Wildlife Criteria Methodology
   Like the aquatic life and human
 health criteria methodologies described
 above, EPA is proposing a two-tiered
 approach for the Great Lakes Water
 Quality Guidance for Wildlife, which
 will hereinafter be referred to as Tiers I
 and n. EPA is proposing to require all
 Great Lakes States and Tribes to apply
 the methodology to derive Tier I criteria
 and Tier n values, as well as the Tier I
 numeric criteria proposed, to discharges
 into the Great Lakes System. The  •
 Committees of the Initiative developed,
 and EPA is proposing, a Tier H method
 that is very similar to the proposed Tier
 I method. However, because Tier It
 values are based on a less extensive data
 base than are Tier I criteria, the
 uncertainty factor which accounts for
interspecies lexicological differences
 (the Species Sensitivity Factor) may be
 smaller than that used in deriving a Tier
 I criteria. In deriving Tier II values, the
 Species Sensitivity Factor may also
 account for interspecies lexicological
 differences across taxonomic classes.
 This uncertainty factor is intended to
 address any uncertainties,stemming
 from the use of a less inclusive database
and its use is meant to produce Tier H
values that are conservative.
  Tier n values are intended to be
conservative to encourage data
generation so a Tier I criteria can be
calculated. Although States and Tribes
have the authority at their discretion to
do so, EPA does not intend that Tier II
values will be adopted into State
standards, but, rather, will serve as a
translator mechanism for interpretation
of the State's narrative criteria (e.g., no

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Federal Register /Vol. 58, No. 72  / Friday^ 'April 16,' 1993 /'Proposed Rules
                                                                                                          20879
 toxic pollutants in-toxic amounts) and
 as a basis for developing control
 measures such as effluent limitations in
 NPDES permits. In the future, EPA miajr
 replace Tier n values with Tier I criteria.
 as more data are generated.
 1. Wisconsin State Wild and Domestic
 Animal Criteria    "
   The Committees of the Initiative
 chose, as the starting point for the
 development of the wildlife criteria^
.•methodology, the Wild and Domestic
 Animal Criteria (WDAC) approach
 developed by the State of Wisconsin
 (Wisconsin Administrative Code NR.
 105,07,1989; Technical Support
 Document for NR 105,1988), which is
 available in the administrative record
 for this rulemaking. A WDAC is the
 lowest species wild and domestic •
 animal value (WDAV) calculated using
 the equation presented below. The
 equation used to derive the WDAV
 portrays a "model animal" as follows:
             NOAELxWtxSSF
  WDAV =
 .where: WDAV is the wild and domestic
 animal value in 'milligram's per liter
 (mg/L); NQAEL is the no observable
 adverse effect lever in milligrams of
 substance per kilogram of body weight
 per day .as derived from mammalian or -
 avian studies (mg/kg-d);Wt A is the
 average weight in kilograms  (kg) of the
 test animals; WA is the average daily
 volume of water in liters consumed per
 day (L/d) by the test animals; SSF is the
 species sensitivity factor Which is an
 uncertainty factor ranging between 0.01
 and 1 to account for differences in
 species sensitivity; FA is the average
 daily amount of food consumed by the
 test animals in kilograms (kg/d); and
 BAF is the aquatic Ufe bioaccumulation
 factor with units of titer per kilogram (L/
 kg)-   .; ;<   -'..;..' '-/ -  ".•-: ' .  - •-..-.
 2. Modifications to Wisconsin's WDAC
 Procedure     •
   As mentioned, the proposed Guidance
 : on a water quality criteria methodology  ,
 for wildlife is based on the State of
 Wisconsin's wildlife criteria procedure.
 However, the Initiative Committees and
 EPA developed several modifications of
 this State procedure which EPA is
 proposing to incorporate into the
 proposed Guidance, They include: A
 requirement that States and Tribes use
 specific Great Lakes species identified
 by EPA as representatives of regional
 wildlife species likely to experience
 significant exp'osure from the aquatic
 food web rather than using a "model
 animal''; provisions that more clearly
 define and.maTce more stringent toxicity
                      data requirements (i.e., a dose-response
                      study is- required); provisions which
                      allow a subchrbnip to chronic
                      uncertainty factor to be applied to the
                      NOAEL to extrapolate from subchronic
                      to chronic exposure lengths; and
                      provisions for two tiers of criteria rather
                      than one as under the Wisconsin
                      approach. A fifth modification to the
                      approach submitted by Wisconsin is
                      proposed in procedure 1 of appendix F
                      to part 132 of this proposed Guidance
                      (the site-specific modification portion of
                      Great Lakes Water Quality Guidance -
                      Implementation Procedures). Procedure
                      1 allows for the incorporation of an  %
                      additional uncertainty factor into the
                      equation to account for intraspecies
                      variability in the derivation of a species-
                      specific wildlife criterion or value for a
                      species other than the representative
                      species proposed for general use. See
                      section VOL A of this preamble for a
                      discussion .of the additional uncertainty
                      factor in the proposed procedure i of
                      appendix F, as well as alternative text,
                      upon which EPA invites comment, that;
                      provides additional guidance to States
                      and Tribes.                  '.-      ,

                      3. The Great Lakes Water Quality
                      Initiative Wildlife Criteria Methodology
                        The approach used in the aquatic life
                      criteria methodology, where the aquatic
                      life criterion is determined from a
                      statistically valid distribution of toxicity
                      values for a number of aquatic species,
                      is not currently feasible for the
                      derivation of wildlife criteria. This is
                      because there is a less extensive and
                      representative wildlife toxicity database
                      and limited information on species-
                      specific exposure parameters. The
                      wildlife criteria methodology is more
                      similar to that employed in the    :
                      calculation of noncancer human health'
                      criteria.-  .
                        The general procedure as well as the
                      requirements for developing wildlife
                      criteria and values are provided in
                      appendix D to part 132. The Technical
                      Support Document (TSD) provides
                      additional background as well as
                      guidance on the selection of values for
                      .uncertainty factors which may be used
                      in the derivation of wildlife criteria.
                      EPA believes that the States, the Tribes
                      and the public would benefit from easy
                      access to the background material
                      provided in the TSD because the
                      wildlife criteria are so new. EPA,
                      however, acknowledges that the TSD
                      repeats some of the material that
                      appears in the Method. EPA also is
                      concerned that the States, thO'Tribes
                      and the public may become confused
                      and mistakenly-believe that the TSD    .
                      also sets out binding requirements.
                      Consequently, EPA is considering either
 (1) combining the TSD with the Method
 for publication in the CFR, or (2)
 publishing-only the Method in the CFR
 and distributing the TSD widely. EPA ,
 invites comment  on this issue. If option
 (1) is pursued, EPA invites comments  "
 on whether there are any components of
 the TSD which should not become   .
 binding requirements.    ,
'  As with the human health
; methodology, the wildlife methodology
 has both a hazard and an exposure
 component. The hazard component is
 determined from  the toxicity data for a
 given pollutant and the exposure
 component is determined from species-
 specific exposure pdrainetefs.,
   a. Parameters of the Hazard         :
 Component of the GLWQI Wildlife
 Criteria Methodology. The Committees
 of the Initiative discussed various
 aspects of the hazard component of the
 final wildlife criteria methodology. EPA
 is proposing to adopt the ideas they    ;
 developed on several aspects  of the
 hazard component of the wildlife
 method which are presented below.
   i. LOAEL to NQAEL Extrapolations. In
 some studies when a range of doses are
 used, an effectis  observed at the lowest
 chemical concentration used in the'
 study. The proposed Guidance proposes
 to allow use of an uncertainty factor that
 would permit a NOAEL to be  estimated
 from the LOAEL  determined in such a
 study. Experimental support for this
 concept is referenced in the Technical •
 Support Document for Wildlife Criteria
 (the appendix to this preamble), as well  .
 as appendix A to the Great Lakes Water
 Quality Initiative {GLWQI) Technical  .
 Support Document for Human Health
 Criteria and Values, which is  available
 m the administrative record for this   .
 rulemaking. Copies are also available"
 upon written requestto the address     '"
 listed in section Xin of this preamble.
 EPA notes that use of such an
 adjustment factor is permitted within
 the existing human health water quality
 criteria process (45 FR 79353-^79354,
 November 28,1980; and 5Q FR 46944-
 46946, November, 13,1985). EPA is
 proposing to allow this adjusted NOAEL'
 value to.be used in the derivation of
 both Tier I wildlife criteria and Tier H
 wildlife values. EPA requests comment
 on this approach.              :
   ii. Subchronic  to Chronic
 Extrapolations. The wildlife criteria
 methodology allows for application of
 an uncertainty factor to adjust the ,
, NOAEL from a subchronic study to •
 estimate a chronic NOAEL. Because of
 toxicokinetic considerations,  bioassays '
 that are of insufficient duration to
 encompass a significant portion, of ah
, organism's life spari or a sensitive life
 • stage may underestimate hazards. EPA

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   20880
Federal Register  /Vol. 58, No. 72
   proposes providing the option of
   considering exposure length by
   extrapolating from subchronic studies to
   estimate chronic impacts. As presented
   In the Technical Support Document for
   Wildlife Criteria (the appendix to this
   preamble), the value of this term must
   DO basad on the bioaccumulative
   potential of the chemical, toxicokinetic
   considerations, test length and available
   test data. The value applied^ can range
   from 1.0 to 10, adopting the 10-fold
   uncertainty factor value applied in the
   derivation of human health criteria as
   the upper limit for the value.
  Endorsement of this approach by EPA is
  referenced in the Technical Support
  Document for Wildlife Criteria (the
  appendix to this preamble), and
  experimental support for this approach
  is referenced in appendix A to the
  GLWQI Technical Support Document
  for Human Health Criteria and Values.
  EPA requests comments on the
  provisions to allow for such adjustments
  to the NOAEL in the derivation of
  wildlife criteria.
   iii. Species Sensitivity Factor. In the
  derivation of noncancer human health
  criteria, an uncertainty factor is applied
  when extrapolating from results of long-
  term studies on experimental animals to
  humans. EPA is proposing to allow use
  of a spades sensitivity factor (SSF)
  which adjusts for the same type of
  uncertainty—differences ha
  lexicological sensitivity—among
  wildlife spades. Specifically, it adjusts
  only for differences in toxicologies!
  sensitivity between the test species (the
  species from which tha NOAEL is
 derived) and the representative wildlife
 spedos identified for protection or the
 spedes identified as requiring greater
 protection. (The SSF is not intended to
 adjust for differences with regard to  -
 body weight and food and water
 consumption rates between the test
 spedes and representative spedes or the
 spades requiring greater protection.)
   Guidance in the selection of a SSF
 value is provided hi appendix D to part
 132 and the Technical Support
 Document for Wildlife Criteria, The
 discussion of an interspecies
 uncortainry factor located in section C of
 appendix A to the GLWQI Technical
 Support Document for Human Health
 Criteria and Values may also be useful
 in determining the value of a SSF.
   In its December 16,1992, report,
 "Evaluation  of the Guidance for the
 Great Lakes Water Quality Initiative,"
 (U.S. EPA. 1992), EPA's Sdence
 Advisory Board (SAB) recommended
 that the methodology for deriving
 wildlife criteria incorporate procedures
 that address a measure of the variability
of spedes sensitivities observed in
                      substance-specific studies. The
                      guidance provided in the Technical
                      Support Document for Wildlife Criteria
                      for determining an appropriate SSF has
                      been revised following submission to
                      the SAB for review. The current
                      guidance attempts to address the SAB's
                      concerns and requires consideration of
                      the amount and quality of available
                      studies; the diversity of species for
                      which data is available; known
                      physicochemical, toxicokinetic and
                      toxicodynamic properties of the
                      chemical; and similar data for chemicals
                      that operate by the same mode of action.
                     EPA requests comment on the guidance
                     provided in determining the value of a
                     SSF.
                       For Tier I criteria, the Agency
                     proposes that the SSF may be used to
                     extrapolate toxicity data across spedes
                     within each of the two taxonomic
                     classes of Aves and Mammalia. An
                     interclass SSF may be used for a given
                     chemical for a Tier I criteria only if it
                     can be supported by a validated
                     biologically-based dose-response model
                     or by an analysis of interclass
                     toxicological data, incorporating the
                     endpoints in question, for a chemical
                     analog that acts under the same mode of
                     toxic action.
                      Participants'at the Workshop
                     discussed the range of values for SSFs.
                     The Workshop concluded that, in nearly
                     all cases, the available toxicological data
                     for the determination of a SSF to be
                     applied in the derivation of a Tier I
                     criteria, or any value calculated using
                     the Tier I approach, would result in a
                     SSF within the range of 1.0 to 0.01. EPA
                    is proposing to require that a SSF;
                    outside of this range for a Tier I criteria,
                    or any value  calculated using the Tier I
                    approach, must be based on sound
                    scientific and technical reasons and
                    must be accompanied by a.written
                    justification presenting this reasoning.
                    This justification should be provided to
                    EPA by inclusion in the State's or
                    Tribe's submission under § 132*5 of this
                    proposed rule. Use of a SSF outside of
                    this range is prohibited unless approved
                    by EPA based on its consideration of the
                    justification provided.
                      For Tier n wildlife values, EPA
                    proposes that the SSF may be used to
                    extrapolate toxidty data across the two
                    taxonomic classes without the strict
                    requirements presented above"for use hi
                    deriving Tier I criteria. Because of the
                    uncertainties  associated with
                    performing interclass extrapolations,  .
                    and becansa Tier n values are intended
                    to be conservative to encourage data
                    generation, the SSF applied may not be
                    greater than 1.0 but may be lower than
                    0.01. A written justification is not
   required when a SSF less than 0.01 is
   used in the derivation of Tier H values,
     iv. Intraspecies Variability. Procedu**>
   1 in appendix F to this Guidance
   discusses site-specific modifications to
   criteria/values and suggests the use of
   an additional uncertainty factor in the
   equation used to calculate Wildlife
   Values. Section Vm.A of this preamble
   presents a method for the use of this
   additional uncertainty factor, called an
   intraspecies uncertainty factor (ISF), to
   adjust for intraspecies variability in the
   development of site-specific criteria.
   The use of this additional uncertainty
   factor provides an additional level of
   protection when protection of all  '
   individuals in a given population is
   desired. The method presented in
  section Vffl.A of this preamble proposes
  incorporation of an intraspecies
  sensitivity factor (ISF) into the hazard
  portion of the wildlife value equation.
  The following discussion provides more
  detail on the ISF proposed in appendix
  F and section Vin. A of this preamble.
    The ISF is an uncertainty factor to
  adjust for intraspecies toxicological
  differences to protect sensitive
  individuals in a population. The
  National Academy of Sciences endorses
  the use of a 10-fold factor to account for
  differential sensitivities within the
  human population (NAS, 1980). A
  discussion of the experimental support
  for the application of an intraspecies
  uncertainty factor is provided in
  appendix A to the GLWQI Technical
  Support Document for Human Health
  Criteria and Values. Although chronic
  toxicological data for wildlife species
  are relatively scarce, EPA believes that
  the factor of 10 that EPA has developed
  to protect sensitive members of the
  human population will also protect
  sensitive members of wildlife species.
 EPA is proposing to allow the use of an
 ISF value of 10 without requiring the
 development of specific justification.
 EPA is proposing to require users who
 wish to use factors greater than 10 to
 develop specific and detailed scientific
 rationale for the factors they propose to
 use. The rationale must be submitted to
 EPA on request. EPA anticipates that
, users who have actual toxicological data
 from wildlife.studies may be able to
 justify the use of greater ISFs. EPA is not
 proposing to permit the use of ISFs for
 wildlife that are less than 10.
   In the December, 1992 Science
 Advisory Board (SAB) report (U.S. EPA,
 1992), the EPA's SAB identified the
need for wildlife criteria to be
constructed so that, hi special cases,
they are able to protect the individual
rather than the population., EPA believes
incorporation of the ISF into the
wildlife criteria methodology; as

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                 federal Register /Vol. 58, Mo, 72 /Friday, April 18, 1993 /Proposed Rates
                                                                    20881
 proposed in section VHI.A. of this
 preamble, adequately addresses this
 concern. EPA invites comment oh the  .
 JSF.   .,...:'   ',  ".   '  ,    -
   v. Alternative Formula for Hazard
 Component of Equation, la appendix D
 to part 132, the hazard component is
 represented by:      •         •
   •The NOAEL applied in the equation
 maybe: A NQAEL determined by
 applying a LOAEL to NOAEL
 uncertainty factor to a LOAEL; or a
 NOAEL adjusted to account for
 subchronic to chronic exposure
 durations by application of a subchronic
 to chronic uncertainty factor. In the
 equation, the NOAEL may be further
 adjusted to account for interspecies
 toxicological differences multiplication
 by of a SSF and/or intraspecies
 .toxicological differences by division by
 an ISF. Because of these potential
 adjustments to the NOAEL which may
 be carried out in the calculafdon of a :
 wildlife value, in this preamble EPA
 proposes a modification to Hie hazard
 component of the wildlife criteria
 calculation equation presented in
 appendix D to part 132. Rather than
 using the equation presented in   .';..,
 appendix D to part 132, EPAxequests ,
 comment on the replacement of the
 hazard portion of the equation
 (presented at the beginning of this
 section) with the formula presented
 below;    .    -..-."..     •

     •'-"." "-•';.".  ED  .''•    •:• ':'•'-.  ':'

       UFS xUFc XUfkxUIv   ,-

   Where:    .             • '..'•;
   ED=the Effect Dose in mg/kg-d for the
 test species. This could be either a
 NOAEL or a LOAEL.'
   UFs-Uncertainty Factor for
 extrapolating toxicity data across
 species. Because it appears in the  .
 denominator, the value of this term
 would be the inverse of the SSF '
 described and defined in appendix D to
 part 132 and the appendix to this
 preamble.
   DFc=Oncertalnty Factor for
 subchronic to chronic exposures. The
 Value of this term would be the
 subchronic to chronic uncertainty factor
 previously described and discussed in
 appendix D to part 132 and the
. appendix to this preamble.       •
   nFs=Uncertainty Factor for LOAEL to
 NOAEL extrapolations. The value of this
 term would be the LOAEL to NOAEL
 uncertainty factor discussed in
 appendix D to part 132 and the
 appendix totMs preamble.
 intraspecies toxicologicai differences to
 protect sensitive individuals in a
 population. Because it appears to the
 denominator above, this term would be
 the inverse of the ISF proposed In
 section ym.A of this preamble, and
 discussed above in this section of the
 preamble,
   Jnmany cases, the value for these
 uncertainty factors maybe one. That is,
 values other than 1.0 would rarely if
 ever be used for all uncertainty factors
 simultaneously. However, EPA believes
 that the alternative formula has the  ,  :
 advantage that it more dearly presents
 the uncertainty factors employed. The
 equation used to derive wildlife criteria
 and values would be:
                                                      ED
                                         , UFSxUFc
                                                                    -XWt.
   The terms are defined above and in
 appendix D to part 132, This formula
 appears more similar to that used in the
 derivation of npncancer human health
 criteria. EPA requests comment on the
 adoption of the alternative formula in
 the final Guidance.
   b. Parameters of the Exposure
 Component of the GLWQf Wildlife   /
 Criteria Methodology, la deriving
 human health criteria, the exposure
 estimates employed are for one species,
'Homo sapiens. The Committees of the
 Initiative and EPA, however, wanted to
 develop a wildlife method that would
 protect a broad range of wildlife species.
 There are two possible ways to
 accomplish this: Estimate exposure
 parameters for a hypothetical "model
 animal," (the approach implicit in the
 Wisconsin methodology); or select an
 actual wildlife species as a
 representative wildlife species. The
 Committees and EPA agreed to select
 representative species for the two
 taxpnomic classes, Aves and Mammalia,
 in order to provide a basis for;
 determining an appropriate SSF and
 incorporating empirical exposure
 parameters where available for specific
 species in each taxonomic class.
 Selection of representative species
 which are then used to derive criteria to
 protect wildlife is a significant issue.
 The criterion and selection process used
 to select the representative species is
 presented in section V of the Technical
 Support Document for Wildlife Criteria
 (the appendix to this preamble). The
 species selected are representative of
 Great Lakes basin wildlife which are
 likely to experience significant exposure
 to contaminants from aquatic food webs,
 EPA requests comment on the selection
 process and the results employed in the
 derivation of wildlife criteriav
  L Approach Used to Select
 Representative Species IdBntifiedfor
 Protection. To .select representative
 avian and manamHlifln species, an
"analysis of wildlife species tiiat inhabit
 the Great Lakes basin was undertaken to
 identify those most likely to be exposed
 to environmental contaminants from   .
 aquatic ecosystems (these representative
 species are not necessarily the most
 lexicologically sensitive species). This
 analysis is presented in the Technical
 Support Document for Wildlife Criteria.
 With regard to mammalian species,  -•:- :•
 results of this assessment suggested that,
 in general, piscivorous species are at
 greatest risk from the'chemicals
 identified for wildlife criteria
 development (see section iii, belowj.
 Two mammalian species were chosen to
 represent the range of body weights and
 food habits of piscivorous mammals, .-'.
 Representative avian species Were
 categorized based on three species-
 specific parameters: body weight, food
 habits (e.g., food source and prey size) '-.-.
 and foragmig styles. Based on available   .
 data, the results of this assessment
 suggested that with the precision of
 available data, ingestion rates' for birds
 were generally proportional to animal
 mass and not influenced by foraging  '  "
 style. Therefore, EPA is proposing to
 select representetive avian and       "
 mammalian species which represent a
 range of body weights and food habiJs
 appropriate for the Great Lakes basin
 and which are likely to experience
 significant exposure from the aquatic
 food web,      . .. •'. -.'..'.
  EPArequests^ubmissionpfpeer"  .-'
 reviewed.enipMcal exposure
 information for wildlife species residing
 in the Great Lakes basin which were not

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 20882
Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
 referenced In the analysis presented in
 tho Technical Support Document for
 Wildlife Criteria and which the
 commcnter feels should be considered
 in the selection of representative avion
 and mammalian species.
  As a result of applying this approach,
 tho representative species proposed to
 represent avian and mammalian species
 of the Great Lakes basin which are likely
 to experience significant exposure to
 contaminants in aquatic ecosystems
 through the food chain are the mink
 (Mustela vison] and river otter (Lutra
 canadensis) and the belted kingfisher
 (Ceryle al^yon), osprey (Pandion
 haUatus) and bald>eagle (HaUaeetus
 Jeucocephalus), EPA specifically invites
 comment on the choice of representative
 spocics identified for protection, and
 requests that the public document the
 basis for considering other species.
  The SAB, in their December 1992
 report (U.S. EPA, 1992), recommended
 that the approach to protect wildlife be
 expanded to consider ecologically
 representative species. EPA
 acknowledges that the approach used to
 select representative species does not
 consider potential impacts on wildlife
 species due to changes in communities
 or the ecosystems in which they reside
 and recognizas the need for research to
 bettor understand the large uncertainties
 which currently exist in this area. EPA
 welcomes suggestions on how to select
 ecologically representative species given
 tho current state of knowledge.
  ii. Bioaccumulation Factors. The
 procedure for determining the
 appropriate bioaccumulation factor
 (BAF) for calculation of Tier I wildlife
 criteria and Tier n wildlife values is
§ resented in appendix B to part 132.
 ascd on the food habits of the
 representative wildlife species, BAFs
 calculated for trophic levels 3 or 4 may
 be used, BAFs for invertebrates, aquatic
 plants or other trophic levels may also
 be used on a case-by-case basis based on
 their proportion in the total diet
 consumed bv the wildlife species
 requiring greater protection.
  Hi, Exposure Routes Considered. The
 derivation of the equation used to
 calculate wildlife values, which are in
 turn used to calculate a wildlife
 criterion, considers oral exposure (i.e.
 food and water ingestion). EPA
 considers oral ingestion the most
 significant route of exposure for
 bioaccumulative pollutants and these
 pollutants represent the greatest risk to
 wildlife species. EPA requests
 comments on this assumption.
  In its December 16,1992 report,
 "Evaluation of the Guidance for the
Great Lakes Water Quality Initiative"
(U.S. EPA, 1992), EPA's SAB expressed
                      concern that the wildlife exposure
                      assessments hi the proposed guidance
                      do not consider exposures via
                      inhalation or dermal contact which may
                      be important for chemicals with
                      significant vapor pressure and
                      intermediate molecular weights. EPA
                      solicits modifications of the proposed
                      approach which would address these
                      concerns and consider other significant
                      routes of exposure for non-
                      bioaccumulative chemicals.
                      C. Additional Issues
                        The sections below highlight some of
                      the issues and discussions which
                     "occurred during the development of the
                      wildlife criteria methodology proposed.
                      EPA solicits comments on each of these
                      issues.
                      1. Use of Human Health Paradigm
                        The December, 1992, SAB report (U.S.
                      EPA, 1992) states that the wildlife
                      criteria concepts were formulated
                      around the perceived requirements of
                      the human health paradigm and they are
                      inadequate for wildlife. Adjustments
                      made  to the human health paradigm
                      include: (1) Defining database
                      requirements such as preferred test
                      species, test length, and toxicological
                      endpoints; (2) selection of species
                      representative of wildlife species likely
                      to experience significant exposure from
                      aquatic food webs  and for which
                      empirical dietary exposure information
                      was available; and (3) options for the
                      use of various uncertainty factors to
                      ensure protection of the distribution of
                      wildlife species. Given the extent of
                      current exposure and toxicological data
                      available for wildlife species, EPA
                      believes the methodology (presented in
                      appendix D to part 132, and clarified ii
                      the appendix to this preamble and the
                      criteria derived based on this
                      methodology, are scientifically
                      defensible. EPA requests comments on
                      additional modifications to the
                      proposed methodology which would
                      improve its scientific defensibility.

                      2. Minimum Data Bass for Wildlife
                      Criteria Derivation
                        There was a considerable amount of
                      discussion in the Committees of the
                      Initiative and at the Workshop on the
                      minimum toxicological database
                      requirements for both Tier I criteria and
                      Tier n values. Due  to the uncertainties
                      hi extrapolating data across taxonomic
                      classes, EPA is proposing to require that
                      the minimum toxicity database for Tier
                      I criteria must provide enough data to •
                      generate a subchronic or chronic dose-
                      response curve for both birds and
                      mammals. For Tier n values, the
                      minimum toxicity  database need only
in
provide enough data to generate a
subchronic or chronic dose-response
curve for one taxonomic class (Aves or
Mammalia). In all cases, any study used
in the derivation of wildlife criteria or
values should be peer-reviewed.
  Additionally, if available, field
studies of wildlife species shall take
precedence over studies using
traditional laboratory species in the
development of wildlife criteria and
values because uncertainties in
extrapolating from laboratory to field
impacts are reduced. Any laboratory
studies used must use avian or
mammalian  species.
  The oral exposure routeJs the primary
route of exposure to be considered in
selecting toxicity studies. EPA proposes
that studies involving other exposure
routes  (e.g., dermal or inhalation).
should be considered in the derivation
of a Tier I criteria or Tier H value only
when an equivalent oral dose can be
estimated. Such an estimation should be
supported by toxicokinetic and in vivo
metabolism data. Without this
supporting data, the mechanism of
toxicity and/or the dosimetry for these
routes of exposure cannot be assumed to
be the same as for the oral route of *
exposure, and the criteria and value
calculations are based  on an oral route"
of exposure.            .
  If laboratory studies  are used to derive
a Tier I criteria, EPA is proposing a 90-
day requirement for any mammalian
study and a 28-day requirement for any
aviaii study. This is to  ensure that the
toxicity data on which a wildlife
criterion is based does not
underestimate effects associated with
repeated exposures to a chemical.
  If laboratory studies  are used to derive
a Tier n value, EPA is proposing the
same requirements for Tier I except a
28-day mammalian study which meets
the other requirements presented in
appendix to  part 132 may also be used

3. Acceptable Endpoints for Toxicity
Studies                          -  "'
  The acceptable endpoints on which
the NOAEL determined from the
toxicity study must be  based are defined
in the wildlife methodology presented
in appendix D to part 132. These
endpoints were selected because they
are parameters most likely to influence
population dynamics. When more than
one study is  available which assessed
different endpoints, EPA recommends
that preference be given to studies
which assess endpoints which best
reflect potential impacts to wildlife
populations.
  EPA's SAB, in their December 16,
1992 report (U.S. EPA, 1992),
recommended that EPA develop

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                 Federal Register / Vol. 58, No, 72 7 :Friciay," April  16,  1993 7 'Proposed Rules
                                                                      20883,
. guidance for the selectipn of NOAELs
 appropriate for the protection of wildlife
 populations as -distinct from tlia
 protection of individuals. EPA proposes
 that the restrictions and clarifications
 provided in the methodology adequately
 address this concern given the current
 extent of knowledge regarding •••
 population dynamics. EPA requests
 comments on other approaches which
 may address the recommendation      :
 received from EPA's SAB.     . . •-

 4. Use of .an Acute to Chronic
 Conversion Ratio
  Participants at the Workshop and the
 Committees of the Initiative discussed
 the application of acute to chronic
 conversion ratios in the derivation of
 Tier I criteria. An acute/chronic ratio is
 applied to acute toxicity data {typically
 mortality) to estimate chronic effect  :
 levels. Workshop participants
; concluded that more data analysis of   '
 existing mammalian and aviari acute
 and chronic toxicity data, possibly
 broken do wa by class of compound or
 mode of action, was needed to
 adequately define the empirical
 relationship between acute endpoints
 (e.g., LD5Q, the lethal dosage causing
 death in 50 percent of the exp osed
 animals) and chronic endpoints (e.g.,
 NOAEL, thehighesttested doisage
 causing no observed adverse effect).
 Workshop participants recognized that
 before the use of acute/chronic ratios
 could be scientifically defensible,
 additional toxicity data might be
 needed. Given the current limited
 database, there was concern that the
 factor for extrapolating from acute data
 to chronic data would have to be so
 large that it would result in criteria or •
 values which could be overly
 conservative. Therefore, EPA is-
 proposing not to incorporate the use of  ".
 an acute-to-chronic conversion factorm
 the Tier I methodology. EPA Is also   \
 proposing that Tier II values not be
 based solely on acute toxicity data,
 instead requiring the use of subchronic
 or chronic data to derive an effect value.
 EPA invites comments on these
 proposed decisions.

 D.  Chemical Selection for Wildlife
 Criteria Derivation                  -
  The types of chemicals for which
 wildlife criteria" should be developed
 under the GLWQI were adt
 Workshop, These are; those which
 bioaccumulate {because wildlife species
 occupy higher levels in the trophic
 structure of a food web and, therefore,
 have  a higher exposure); and those
 which have a unique metabolic pathway
 or mode of action which may make
 birds or mammals more'sensitive
 lexicologically. The Committees of the ,
 Initiative agreed with the proposals of
 the Workshop that chemicals BAF
 greater than 250 should receive top
 priority for derivation of wildlife  1  . -...-,.
 criteria. In addition, chemicals with
 B AFs less than 250 where wildlife
 impacts are suspected (e.g.; lead) were
 included in the top priority list
   The Initiative Committees also
 identified nonpersistent, multiple
 application biocides (such as triazine
 herbicides and carbamates) .are another
 group of chemicals for which wildlife  ;
 criteriamay be derived. These
 chemicals, although they are highly
 degradable and, therefore, have low
 bioaccumulation factors, are known to
 have detrimental effects on wildlife,
   EPA agrees that the chemicals    —
 described above are those that most
 warrant the development of wildlife •';-
 criteria and values.'EPA is not requiring
 the Great Lakes States or Tribes to
.develop values for all of these         ,
 chemicals, nor is EPA prohibiting any
 State or Tribe from addressing rather
 chemicals if it believes that those other
 chemicals are causing adverse impacts
 on wildlife. EPA merely recommends
 that States or Tribes place a high
 priority on .developing wildlife values
 for the chemicals identified by the
 Committees. EPA also intends to focus
 any future efforts to develop additional
 Tier I criteria for wildlife on these same
 chemicals of concern.               ,

 E. Tier I Wildlife Criteria and Tier n
 Wildlife Values
  In the proposed Guidance, there are -
 four chemicals for which Tier I wildlife
 criteria are proposed. These are
 mercury, PCBs, 2,3,7,8-TCDD, and DDT
 and metabolites. Only four  wildlife
 criteria are being proposed  for two
 major reasons: field studies from the,   -
 Great Lakes indicate that the f our  ,
 pollutantsfor which wildlife criteria are
 proposed have had the most severe
 impacts on wildlife within  the Great
 Lakes; and the criteria proposed ere. the
 first set of criteria for wildlife that EPA
 has ever developed. EPA cannoftake
 advantage of an established and peer-
 reviewed National methodology to
 develop National wildlife criteria as it
 can lor both human health and aquatic
 life criteria. The Initiative Committees
 and EPA lacked time and resources to
 develop additional numeric criteria for
 wildlife prior to this proposal,  The State
 of Wisconsin had already identified
 these four chemicals as chemicals of
 concern for wildlife impacts in their
 State and completed literature  reviews
 for these four chemicals. The'se '  ,
 literature reviews were "updated, as part
 of the GLWQi effort The proposed
 numerical criteria are presented inr
 Table ¥1-1. For additional information.
 EPA refers readers to the proposed
 methodology in appendix D to part 132,
 the .Technical Support Document
 located in the appendix to this  ,   "
 preamble, and the individual criteria
 documents available in the
 administrative record for this     .  ,
 rulemaking. No Tier II wildlife values V
 were calculated for inclusion in the
 proposed Guidance,

          Vi-1.—GREAT LAKES HER I
           WILDIJFE CRITERIA
          .Chemical
 p.p'-dichloro- . diprjenyltnchloro-
   ettiane (DDT) and Metabolites
 Mercury          / (including
   Mefcylmsrcury)	.........
 Polychlorjnated  "    biphenyls
   (PCEs)	„,..„....„„„.„...;...... i
 2,3,7,8-t@tracrilorodibenzo-p-
   dk»dn <2,3,7,e-TCOD) „.	
                              Criteria
   0-87

 180

..-'•17     :

;, 0.0098
 F. Comparison WitiitheCWAand
 Relationship to National Guidance
   The observed effects on wildlife
 species in the Great Lakes basin .are
 clear evidence that the Clean Water Act
 (CWA) goals of protecting the biological
 integrity of the Nation's waters and
 attaining water quality which provides
 for;the protection of-wildlife are not
 being met in the Great Lakes {see 33
 U.S.c;;1251ferj.

 1. Relationship to Existing National •
 Guidance       ;
   Currently, there exists no National
 .guidance for wildlife protection
 comparable to the proposed Guidance.
 However, there is a mechanism' for
 consideration of wildlife impacts within
 the 1985 National aquatic life criteria
 guidelines (Stephen, et al,, 1985). 'In
 those guidelines, if a maximum
 permissible tissue concentration is
 available from a.maximum acceptable
 dietary intake based on observations on
 survival, growth, or reproduction ii£ A
 chronic wildlife feeding study; or.a
 long-term wildlife field study, or from
 an FDA Action Level, a Final Residue
 Value can be calculated. This Final
 Residue Value is calculated by dividing
 maxiinum permissible tissue
 concentrations by appropriate lipid-
 nonnalized bioconcentration or     '   •
 bioaccumulation factors.'. '".-"•:
   TMs methodology provides/a '
 mechanism to protect against
 bioaccumulation of a compound 'within
 a food web. However, it also'has       ,
' limitations, A Final Residue Value
 derived using aa FDA Action Level does

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20884	Federal Register  /  Vol. 58, No. 72 / Friday, April 16,  1993 '/ Proposed Rules
not ensure protection of wildlife species
which may consume contaminated
aquatic organisms as a larger portion of
thoir diet or exhibit a greater sensitivity
than the human which the FDA Action
Level is derived to protect. If no
maximum permissible tissue
concentration is available, no Final
Residuo Value is calculated and,
therefore, biomagnification of a
chemical into the higher trophic levels
of a food web, and potential impacts on
these wildlife species, is not considered
in the derivation of the Aquatic Life
Criterion.
  EPA's current National aquatic life
criteria for DDT and PCBs are based on
wildlife toxidty information (U.S. EPA,
1980 a and c, respectively). Wildlife
toxiclty data was also considered in the
derivation of the current aquatic life
criterion for mercury (U.S. EPA, 1980b).
For both DDT and PCBs, a
bloconcentration factor (BCF) rather
than a bioaccumulation factor was used
In the derivation of these aquatic life
criteria. In both cases, the BCF was
known to underestimate the
bioaccumulative potential of the
compound, and in the PCB Aquatic Life
Criteria document  (U.S. EPA, 1980c),
underestimating the bioaccumulative
potential was identified as leading to a
criterion which may be underprotective
of wildlife species  at risk.
  EPA has begun a separate effort to
derive National wildlife criteria.
Following the release of the 1987
General Accounting Office report
entitled "National Refuge
Contamination is Difficult to Confirm
and Clean Up," (GAO, 1987), EPA began
to work cooperatively with U.S. Fish
and Wildlife Service to develop
methods for deriving National wildlife
criteria. The wildlife criteria efforts
carried out within the Great Lakes Water
Quality Initiative have been coordinated
with the on-going National efforts.
However, within the development of
National wildlife criteria, wildlife are
defined as mammals, birds, reptiles and
amphibians. This broader definition of
wildlife was considered hi the early
stages of wildlife criteria development
for the GLWQJL However, the decision
was made to move forward with wildlife
criteria considerate of impacts on
mammals and birds at this time because
of the lack of chronic or sub-chronic
lexicological  data for reptiles and
amphibians. The incorporation of effects
on reptiles and amphibians is also
complicated by the significance of, and
lack of data for, the dermal route of
exposure to reptiles and amphibians.
EPA requests recommendations on how
reptiles and amphibians can be
incorporated  into the proposed GLWQI
methodology or suggestions for an
alternative wildlife criteria methodology
considerate of impacts on reptiles and
amphibians.

2. Relationship to Current Efforts To
Provide National Guidance for the
Development,of Wildlife Criteria

  There are efforts underway within
EPA to develop guidance for National
wildlife criteria. The proposed
Guidance is being considered as one
alternative which might be modified for
nationwide use. The Great Lakes
Guidance has as its focus the protection
of wildlife populations inhabiting the
Great Lakes basin. Although National
guidance may eventually be modeled on
the proposed Guidance, it should not be
expected that the National guidance
would result in identical criteria. EPA
invites comments on the modification of
this approach for development of a
National wildlife criteria procedure.

G. Comparison of Wildlife Criteria and
Methods to National Program and to
Great Lakes Water Quality Agreement

1. "No Less Restrictive" Than the CWA
and National Guidance

  Since the current National guidance
contains no method for calculating
criteria for the sole protection of
wildlife and no values based solely on
the protection of wildlife, a direct
comparison is difficult. The National
guidance allows some consideration of
wildlife impacts hi the calculation of
criteria for aquatic life. Current National
criteria for aquatic life can be compared
with the proposed criteria for wildlife,
although the comparison may not be
especially meaningful. All four of the
Tier I criteria for wildlife proposed are,
hi fact, more restrictive than the existing
aquatic life standards for the same '
pollutants. Since the new wildlife
criteria will apply in almost all Great
Lakes waters, they will in a rough sense
provide more protection than the
National guidance.
  As explained in section B above, in
the discussion of aquatic life criteria,
Tier II values will almost always be
more restrictive than both new Great
Lakes Tier I criteria and existing
National criteria. Hence, EPA believes
that future Tier n wildlife values
generally will not be less restrictive than
the National program.

2. Conformance With the Great Lakes
Water Quality Agreement
  As explained above in the discussion
of aquatic life criteria, EPA does not
believe that Congress intended to
require EPA to adopt criteria identical to
the specific numerical limits set out as
 "Specific Objectives" in Annex 1 of the
 Great Lakes Water Quality Agreement
 (GLWQA). In addition, only five of these
 "Objectives" focus on the protection of
 wildlife. EPA notes that the proposed  ,
 wildlife criterion that can be most
•readily compared to a wildlife limit in
 the GLWQA is more restrictive than the
 GLWQA's limit. EPA is proposing a
 wildlife criteria for DDT of 0.87 pg/L.
 The GLWQA's Annex 1 limit for DDT is
 3.0 pg/L.
  Finally, as discussed above, EPA
 intends to try to revise the GLWQA to
 replace existing Annex 1  limits with the
 new criteria proposed.

 H. Bibliography

  Great Lakes Water Quality Criteria
 Initiative. Appendix A: Uncertainty Factors
 in Great Lakes Water Quality Criteria
 Initiative Technical Support Document for ,
 Human Health Criteria and Values. NTIS
 #PB93-15468. ERIC: 3940.
  National Academy of Sciences. 1980.
 Problems of Risk Estimation, pp. 25-65 in
 Drinking Water and Health, Volume 3,
 National Academy Press, 2101 Constitution
 Avenue, NW, Washington, DC 20418.
  Stephan, C.E., D. I. Mount, D. J. Hansen,
 J.H. Gentile, G.A. Chapman, and W.A.
 Brungs. 1985. Guidelines for deriving
 numerical national Water Quality Criteria for
 the Protection of Aquatic Organisms and
 their uses. PB85227049. National Technical
 Information Service. Springfield, VA.
 , U.S, EPA. 1980a. Ambient Water Quality ,
 Criteria for DDT. Office of Water Regulations •
 and Standards, Criteria and Standards
 Division. U.S. EPA, Washington, DC EPA
 440/5-80-038.
  U.S. EPA. 1980D. Ambient Water Quality
 Criteria for Mercury. Office of Water
 Regulations and Standards, Criteria and
 Standards Division. U.S. EPA. Washington,
 DC EPA 440/5-80-058.
  U.S. EPA. 1980C. Ambient Water Quality
 Criteria for Polychlorinated Biphenyls. Office
 of Water Regulations and Standards, Criteria
 and Standards Division. U.S. EPA.
 Washington, DC EPA 440/5-80-068.
  U.S. EPA. 1980d. Appendix C. Guidelines
 and Methodology Used in the Preparation of
 Health Effect Assessment Chapters of the
 Consent Decree Water Criteria Documents.
 pp. 79347-79357 in Water Quality Criteria
 Documents; Availability. Federal Register.;
 45:79318-79378. Friday, November 28,1980.
  U.S. EPA. 1992. An SAB Report:
 Evaluation of the Guidance for the Great
 Lakes Water Quality Initiative. Science
 Advisory Board, U.S. EPA, Washington, D.C.'"
 EPA-SAB-EPEC/DWC-93-005.
 : U.S. EPA. 1985. Section.V.C. Evaluation of
 Health Effects and Determination of RMCLs
 pp. 46944-46950 in National Primary
 Drinking Water Regulations; Synthetic
 Organic Chemicals; Inorganic Chemicals and
 Microorganisms. 50 FR 46936-47022.    '
 Wednesday, November 13,1985.
  U.S. General Accounting Office. 1987.
 .Wildlife Management National Refuge
 Contamination is Difficult to Confirm .and
 Clean Up. Gaithersburg, MD. GAO/RCED- :
 87-128.

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                 Federal Register 7-Vol. 58, No.  72 / Friday; April 16. 1993 /Proposed Rules          20885
   Wisconsin Administrative Code, Chapter
 MR 105,Surface Water Quality Criteria for  .'
 Toxic Substances. Register, February, 1989,
 No. 398.   '   .•:,'  .  '  - '.   .!..•'V  ;'' .
   Technical Support Document for Chapter
 NR105 of the Wisconsin Administrative
 Code. May 1988.  ".         "

 VII. Antidegradation
 A. General Discussion/Bflckground  •_
   Today's Federal Register notice
 proposes guidance to be followed by tie
 Great Lakes' States and Tribes in the
 deyelopment of antidegradation policies
 and implementation procedures for the
 waters of each State that are within the
 Great Lakes System. Antidegradation
 policies and implementation procedures
 are mechanisms that can be used by
 EPA and the States to protect the water
 quality of the Nation's surface waters
 and to maintain improvements that have
 been made in that quality.
", • The Federal regulations at 40, CFR
 131.12 set out the Federal
 antidegradation policy and require that-
 each State develop and adopt a policy  .
 and methods for implementing that
 :policy that, as a minimum, ar.e
 consistent with the requirements set  .
 forth in the Federal policy. Furthermore,
 the regulations at 40 CFR 131.6 require
 each State to include such an
 antidegradation policy as one of the
 elements of the State's water quality
 standards submitted.
   Each Great Lakes State has adopted an
 antidegradation policy'that EPA has
 determined satisfies the minimum
 requirements of the above Federal
 regulations. However, the policies and
 implementation procedures adopted by
 the States vary considerably in form and
 specificity, and EPA and the Great Lakes
 States share concern that there exists
 great potential for inconsistent   .
 antidegradation decisions to arise as a
 result of these differences. JEP A and the
 Great Lakes States agreed at the outset
• of the Initiative that one of the outputs !
 of the process should be antidegradation
 policy and implementation procedure
 guidance; Each Great Lakes State would
 follow^ the resulting guidance when
 revising its water quality standards,
 with the intended result being greater
 consistency among State policies and
 procedures. The passage of the Great
 Lakes Critical Programs Act of 1990
 ' (CPA) made the development of this
 Great Lakes antidegradation.guidance
 mandatory. .     . \      "
   In September 1,991,'the States of
 Michigan, Minnesota, and Wisconsin,
 the Province of Ontario, the Government
 of Canada, and EPA entered into an
 agreement entitled "A Bi-National
 Program to Restore and Protect the Lake
 Superior Basin." Among the elements in
 this agreement are enhanced
 antidegradation requirements for areas -
 of the Lake Superior Basin given special
 protection designation by the three
 States. This proposed Guidance
 includes special antidegradation -..-."
 requirements applicable to those areas
 of the Lake, upon designation by a State
 or States.
   The following discussion briefly .
 summarizes the history of the Federal
 policy and outlines both the Federal
 policy and that developed for the
 proposed Guidance. It also provides a
 detailed overview of the requirements of
 .the antidegradation policy contained in
 the proposed Guidance, which includes
 an antidegradation standard,
 antidegradation implementation
 procedures, antidegradation
 demonstration requirements, and ,
 antidegradation decision requirements.
 Unique characteristics and requirements
 of the Great Lakes System and their
 effect on the proposed Guidance,.as well
 as specific issues that arose during
 consideration of the options for the
 proposed Guidance and their resolution,
 are discussed. Finally, throughout the
 discussion, EPA has identified specific
 issues for which it is seeking comment
 to aid in the development of the final
 Guidance.                 -       , '•
 1. Federal Antidegradation Policy and
 History    .         ,.:      .   -
   &. History of the Federal             .
 Antidegradation Policy. The Federal
 antidegradation policy haslts roots in
 the Water Quality Act of 1965 (Pub. L.
 89-234), which stated in its declaration
 of policy,  "The purpose of this Act is to
 enhance .the quality and value of our
. .wafer'resources and to establish
 national policy for the prevention,   -  "
 control, and abatement of water
 pollution."
   Policy guidelines established by the
 Department of the Interior in 1966 for
 use in the approval of States'water
 quality standards contained additional
 . direction on antidegradation, stating
 that "In no case will standards
 providing for less than existing quality
 be acceptable" and "The water quality
 standards proposed by a state should
 provide for: *  * * The maintenance and
 protection of quality and use or uses of
 waters now of a high quality or of a
 quality suitable for present and
 potential future Uses." .Secretary of the
 Interior Udall further defined the  •
 Federal policy on antidegradation in
 1968, when he said that each State was .
 to include a statement similar to the
' following in their water quality
 standards:                           <
   Waters whose existing quality is better
 than the established standards as of the date
 on which such standards become effective  •
 will be maintained at their existing high
 quality. These and other waters of a State
 will not be lowered in water quality unless
 and until it has been affirmatively-
 demonstrated to the; State water pollution
 control agency and the Department of the
 Interior mat such change is justifiable as a
 result of necessary economic or social.,
 development and will not interfere with or -
 become injurious to any assigned uses made
 of, or presently possible in, such waters. This
 will require that any industrial, public or
 private project or development which would
 constitute a new source of pollution or an
 increasecl source of pollution to high quality
 waters will be required, as part of the initial
 project design, to provide the highest and
 best degree of waste treatment available
 under existing technology, and, since these
 are also Federal standards, these waste  ,
 treatment requirements will be developed ,
 cooperatively.                        /.:-'
"•-' The Federal Water Pollution Control
 Act Amendments of 1972 (Pub. L. 92-
 500)  continued to emphasize the   ,  :
 prevention of pollution and, in 1973,
 EPA developed guidance for State water
 quality standards under the
 Amendments that-essentially repeated
 the 1968 statements of Secretary  Udall.
  " In  1975, EPA promulgated regulations
 at 40, CFR 13p.l7(e) that required the
 States to develop an antidegradation
 policy and implementation procedures.
 The 1975 rule contained provisions that
 are very similar to those in 40 CFR
 131.12, and provided protections for
 existing uses, high quality waters, high
 quality waters that constituted an
 outstanding National resource, and
 waters impaired by thermal discharges.
 To summarize, the 1975 rule/required
;that:  '  ;   •'.-/      ;   ,."•'•;
   i. Existing in-stream water uses must
 be, maintained and protected and that no
 degradation that would interfere with or
 become injurious to existing in-stream
 uses could be allowed;       '      •
   ii. High quality waters (those in which
 the water quality exceeds that necessary
 to support propagation of fish, shellfish
 and wildlife and recreation in and on
 the water) must be maintained and
 protected unless the state chooses, after
 public participation and
 intergovernmental coordination, "to .-• •
 allow lower wafer quality as a result of
 necessary and justifiable economic or *
 social development," and provided that
 the degradation does hot interfere with
 or become injurious to existing uses and
 that the highest statutory and regulatory
 requirements for .point sources and
 feasible management practices, for.:
 'nonpoint sources are achieved;
  . in. High quality waters that constitute
 an outstanding National resource must
' not be degraded; and;  •.v        •
   iv. Where the potential for water
 .quality impairment involved a thermal

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20886
Federal Register / Vol.  58,  No. 72  / Friday, April 16,  1993 / Proposed Rules
 discharge, anlidegradatlon policy and
 Implementation must be consistent with
 section 316 of the dean Water Act.
  Citing the longstanding debate over
 the impact of the antidogradation policy
 on economic growth, EPA proposed to
 change and significantly restrict the
 effect of th« policy in 1982. In proposed
 water quality standards rules published
 in the Federal Register on October 29,
 1982 (47 FR 49234), EPA proposed a
 new antidegradation policy and took
 comment on two alternative approaches.
 Tho proposal would have created a new
 40 CFR 131.10(c) which stated, "States
 must develop and adopt a statewide .
 antidegradation policy to maintain
 existing water uses." As stated in the
 preamble (47 FR 49238-49239), the
 proposed regulation was "based on
 limiting the mandatory antidegradation
 policy to the protection and
 maintenance of existing uses." The
 preamble further stated that "the
 emphasis in this proposal is on the use,
 not the individual water quality
 parameters which might, in any
 particular water body, be higher than
 necessary to protect the existing use."
 The proposaleliminated special
 protections for high quality waters and
 Outstanding National Resource Waters,
 but required that existing uses be
 maintained regardless of future growth
 or development that might affect water
 quality,
  One option, put out for comment in
 the 1982 proposal, retained the existing
 (1975) antidegradation policy, except
 that it eliminated the provisions related
 to outstanding National resource waters
 because the Clean Water Act did not
  Bnvide for such special designations of
  Dtional resource waters. EPA did note,
 however, that the States were free under
 section 510 of the Clean Water Act to
 make such designations in their water
 quality standards.
  Another option for public comment in
 the 1982 proposal would have let the
 States remove existing uses if their
 protection and maintenance would have
 effectively prevented future growth, or if
 the benefits of maintaining an existing
 use were outweighed by its costs.
Removal of an existing use would have
required full public participation and
 would not have  relieved any of the
 Clean Water Act minimum technology
 requirements for point sources.
  The extensive public comment on the
 1882 proposal favored retaining the
 existing (1975) antidegradation policy
 over any of the alternatives. In response,
EPA issued final rules on November 8,
 1983 (48 FR 51400) that retained, with
 certain changes, the 1975
antidegradation policy and incorporated
it into the regulations at 40 CFR 131.12.
                      The changes to the 1975 antidegradation
                      policy are discussed in the preamble to
                      the 1983 rulemaking (48 FR 51402-
                      51403), but they were generally
                      intended to clarify the policy with no
                      change in coverage or effect An
                      exception to this was the change in the
                      provisions applicable to outstanding
                      National resource waters, which
                      eliminated the strict "no degradation"
                      requirement in favor of a limited
                      exception for activities that result in
                      temporary and short-term lowering of
                      water quality. The resulting National
                      antidegradation policy is discussed in
                      detail below-under the heading Existing
                      National Antidegradation Policy.
                        Finally, the 1987 Water Quality Act
                      Amendments to the Clean Water Act
                      (CWA) explicitly incorporated reference
                      to antidegradation policies in section
                      303(d)(4)(B), which requires that such
                      antidegradation requirements be
                      satisfied prior to modifying certain
                      NPDES permits to include less stringent
                      effluentlimitations.
                        In addition, the Governments of
                      Canada and the United States have
                      entered into the Great Lakes Water
                      Quality Agreement of 1978 (GLWQA),
                      which also requires a strong
                      antidegradation process for its
                      objectives to be fully realized. The
                      purpose of the GLWQA is to restore and
                      maintain the chemical, physical and
                      biological integrity of the waters of the
                      Great Lakes Basin Ecosystem. In order to
                      achieve this purpose, the two
                      Governments have agreed to eliminate
                      and reduce to the maximum extent
                      practicable the discharge of pollutants
                      into the Great Lakes System. Both
                      Governments have established policy
                      under the GLWQA that the discharge of
                      toxic substances in toxic amounts be
                      prohibited and that the discharge of any
                      or all persistent toxic substances be
                      virtually eliminated. Finally, a Specific
                      Objective of the GLWQA is for all
                      reasonable and practicable measures to
                      be taken to maintain and improve the
                      existing water quality  in those areas
                      where such water quality is better than
                      that prescribed by Specific Objectives
                      and in those areas having outstanding
                      natural resource value.
                        On November 16,1990, Congress
                      amended section 118 of the Clean Water
                      Act with the CPA. The CPA requires
                      that EPA develop a proposed and final
                      Guidance, including antidegradation
                      policies, and publish it in the Federal
                      Register. The Guidance must conform •
                      with the objectives and provisions of the
                      GLWQA and be no less restrictive than
                      the provisions of the Clean Water Act
                      and National guidance. States are
                      required to adopt into  rules water
                      quality standards, antidegradation
policies, and implementation.
procedures which are consistent with
the proposed Guidance. If a Great Lakes
State fails to adopt such standards,
policies and procedures, EPA is
required to promulgate the Guidance for
that State.
  b. Existing National Antidegradation
Policy. EPA has defined a "tiered"
antidegradation approach for the
protection and maintenance of water
quality based on the existing quality of
the water. The Federal antidegradation
policy at 40 CFR 131.12 establishes
three tiers of restrictions on the
lowering of water quality, and a fourth
requirement applicable to thermal
discharges.
  The first tier, applicable to all waters,
is established by 40 CFR 131.12(a)(l),
which requires that all existing uses of
the water body and the level of water
quality necessary to protect those  uses
be maintained and protected. EPA
interprets  this to mean that water
quality in  any water body may be
lowered only to the point at which the
Water quality is sufficient to protect and
maintain all existing uses, and that it is
not permissible to allow water quality to
be lowered to the extent that any
existing use is impaired. The 1983
Water Quality Standards Regulation
preamble described this provision as tha
"absolute floor of water quality in all
waters of the United States" (48 FR
51400,51403, November 8,1983). Note
also that other parts of the water quality
standards regulation provide that  States
must adopt water quality criteria
sufficient to protect all designated uses,
and that designated uses must include
existing uses. Certain decisions
regarding the lowering of water quality,
such as those involving NPDES
permitted  discharges, must also ensure
that the criteria applicable to such
designated mses are achieved, whether
or not the designated use is an existing
use.
  The second tier is established by 40
CFR 131.12(a)(2), which provides
protection of actual water quality in
water bodies that support the
propagation of fish, shellfish, wildlife
and recreation in and on the water.
("fishable/swimmable"). Waters, the
quality of which exceeds that necessary
for fishable/swimmable, are termed high
quality waters (HQWs). Under 40 CFR
131.12(a)(2)r limited degradation of such
waters may be allowable if necessary for
important  social and economic
development hi the areas in which the
waters are located, but only after public
involvement and only as long as the
water quality remains adequate to be
"fishable/swimmable." The process for
determining whether the lowering of

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                 Federal Reigister  /  Vol. 58, No. 72  / Friday, Aprill6, 1993 /Proposed Rules   -   .   20887
 water quality is necessary to  -
 accommodate important social and
 economic development is referred to as
 the antidegradation demonstration and
 decision."
   The third tier (40 CFR 131.12(a)(3))
 affords special protection to waters that
 have been designated Outstanding
 National Resource Waters (ONRWs) by
 the States. The water/quality in ONRWs
 must be maintained and protected. The
 preamble discussion in the 1983 Water
 Quality Standards Regulation cited
 above indicates that EPA did not intend
 for this to be an absolute prohibition on
 any lowering of water quality in
 ONRWs. It allows States  some limited
 activities which result in temporary and
 shott-term changes in water quality.
   The final provision (40 CFR     ;
 131.12(a)(4)) requires that the State
 antid,egradation policy and
 implementation procedures be
 consistent with section 316 of the;Clean
 Water Act as regards lowering of water
 quality involving thermal discharges..
 This recognizes that thermal variances
 granted under section 316 can override.
 otherwise applicable water quality
 standards, including antidegradation
 standards.   •
   EPA has developed a variety of
 guidance materials to'assist the States in
.the development of their
 antidegradation policies and
 implementation procedures,  and to aid
 EPA in the preview of such,pplicies and
 procedures (e.g., Water Quality    ,
 Standards Handbook (1983)), which is
 available in the administrative record
 for this rulemaking.
    c. Great Lakes States Experience. The
 Great Lakes antidegradation policy
 contains several requirements! that draw
 . from the collective experience of the
 Great Lakes States and EPA in studying,
 managing and protecting the Great
 Lakes System. The unique character of
 the Great Lakes System and the
 problems it faces are a major impetus
 behind the Initiative in general, and the
 basis for several of the specific
 requirements in the Great Lakes
 antidegradation policy.
    Because of the long retention time and
 the complex flow patterns of the water
 in the Great Lakes System, the Lakes
 tend to act as a sink, accumulating
 pollutants discharged to them.-There is
 an identified problem in the Great Lakes
 associated with substances that are
 highly bioaccumulative in the tissues of
 aquatic organisms. Contamination by
 such substances has resulted in State-
 imposed fish consumption advisories  •
 and restrictions for humans, and has
• been implicated in a variety of adverse
 biological effects, such as impaired
 reproductive success and deformities,
among aquatic organisms and the
wildlife that, consume them. A special  ;
emphasis is made in the proposed
Guidance to restrict increases in the rate
of loading of highly bioaccumulative
chemicals. Such "bioaccumulative
chemicals of concern" (BGCs) are those ,
with a bioaccumulation factor of 1000 or
greater, determined using the GLWQI
BAF procedures. The BAF procedures
are found in appendix B and the list of.
BCCs are found in Table 6 of section
132.4 of the proposed Guidance. BCCs
are discussed in detail and comments
are invited in section LA of the ••--.'
preamble.
  As discussed in detail below, under
C.2 "Significant Lowering of Water'
:Quality", the Tier n protections in the  .
proposed Guidance for high quality
waters are focussed on actions that have
the potential to significantly lower
water quality,        •
  The unique character and importance
of the Lake Superior Basin is also
reflected in the proposed Guidance.
Provisions are included for special  ,-  >
protection of waters designated Lake
Superior—Outstanding International
Resource Waters or Lake Superior
Basin—Outstanding National Resource
Waters by the States. These are
discussed below under Special,
Antidegradation Provisions for Lake
Superior.                .
  The Great Lakes priorities should not
be interpreted as EPA's priorities for
water bodies nationwide. EPA expects
the significant lowering of water quality
to be potentially different in other areas
depending on the priority concerns
identified through water quality      '
management planning processes.
  d. Alternative Approaches to
Assessing Lowering of Water Quality.
The Federal antidegradation policy, and
the proposed Great Lakes
antidegradation policy, apply to actions
that lower water quality. Typically,
water quality is considered to be
lowered when the concentration of a
pollutant in the water is increased, or.--
the concentration of a necessary  •. '  •
 substance such as dissolved oxygen is
 decreased. In developing the proposed
 guidance EPA and the Great Lakes
 States considered several alternative
 approaches that could be used to assess
 whether an action would potentially
 lower water quality.
   One approach'that could be used to
.determine if water quality was. lowered
 would rely on sampling and analysis of
 'the water body to determine if any
 measurable change occurred in the
 concentration of a pollutant or
 pollutants. EPA and the Great Lakes
 States considered such an approach
 during the development of the proposed
Guidance. This approach has the
advantage that it actually .uses
information about the ambient levels pf
pollutants to determine if a change in
water quality occurs. The approach is;
not proposed in the proposed Guidance,
however, because many of the
pollutants about which the Great Lakes
States and EPA are most concerned,
cause'adverse effects in the Lakes at
concentrations 'that cannot be measured
in the ambient water using readily
available analytical techniques. .
Furthermore* EPA and the Great Lakes
States are concerned about the potential
difficulty a regulatory agency would
face in linking the actions of a specific
source of the pollutant to the measured
change in ambient water quality. Finally
EPA is very concerned that such an
approach is contrary to the intent and
plain text of the Federal antidegradation
regulation. In particular, 40 CFR   -.
131.12(a)(2) requires that water quality
be maintained and protected unless a
State finds that the lowering of water
quality is necessary to accommodate
important social and economic
development. This clearly necessitates
an affirmative finding by the State
before a water quality can be lowered,
not after it has been measured.
 :  Another approach that could be used
to determine whether an action could
lower water quality would look at the
amount of pollutant released into the • ;
water. Working from the premise that,
"all other things being equal, a change in
the amount of a pollutant added to a
water body will result in a change in the
concentration of that pollutant in the  ,
water body, such an approach would   .
look at changes in the mass loading rate
of a pollutant or pollutants as being
potential indicators of changes in water
quality. EPA and the Great Lakes States,
considered several alternatives that
would implement such an approach. All
 of the alternatives that derive from-this ;
approach would require prior approval
 of a change in the loading of a pollutant
if that change lowered water quality or
 was projected to lower water quality.
 Where the alternatives differ is in the
 threshold at which water quality is
 determined to be lowered and the
 flexibility provided the regulatory
 agency in making  such a determination.
   One alternative EPA and the Great
 Lakes States considered would define
 the lowering of water quality in terms of
 a projected increase in the ambient
 concentration of a pollutant. This
'alternative would use models (simple
 mass balance or more sophisticated
 dynamic models if appropriate) to   •
 project the effect of a change in the mass
 loading rate of a pollutant or pollutants
 on water quality, generally focussing on

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 20888
Federal Register  / Vol. 58, No.  72 / Friday, April 16, 1993  /  Proposed Rules
 changes in effluent limitations and
 wasteload allocations. This is the way in
 which antidegradation policy has
 typically been implemented in the past.
   A second alternative EPA and the
 Groat Lakes States considered would
 define any increase in the rate of mass
 loading of a pollutant as lowering water
 quality. This alternative was appealing
 to EPA and the Great Lakes States
 because the Great Lakes tend to act as
 a sink for many pollutants and there
 was a concern that the models used in
 tha first alternative would not be
 protective for persistent pollutants that
 might accumulate in the Lakes.
   A third alternative considered for the
 proposed Guidance is a hybrid of the
 first two. To account for the concerns
 with the BCCs, the proposed Guidance
 would consider the lowering of water
 quality to occur whenever the rate of
 mass loading of these pollutants (BCCs)
 from an individual point or nonpoint
 sourca increases. For the remaining
 pollutants (tha non-BCCs), any increase
 in an existing limitation beyond a de
 minlmls change would be considered an
 action that would lower water quality
 sufficiently to require an
 antidegradation review. This approach
 would focus regulatory attention on the
 pollutants of primary concern—the
 BCCs—and, for the remaining (non-
 BCC) pollutants, use information on the
 effect of the proposed action on ambient
 water quality in determining the need
 for an antidegradation determination.
 EPA and the Great Lakes States settled
 oa such a hybrid alternative and it is
 embodied in the definition of significant
 lowering of water qualify in the
 proposed Guidance.
   The sections that follow set out in
 detail the basic elements of the
 proposed approach and discuss some
 alternatives for each of those elements.
 EPA requests comments on all of the
 alternative approaches identified above.
 In providing comments, EPA is
 particularly interested in Information on
 tha relative effectiveness of these
 alternative approaches in meeting water
 quality goals, the difficulties and
 advantages of their implementation, and
 their likely costs. EPA is also interested
 in comments on the effect of requiring
 prior approval, through the
 antidegradation process proposed in
 this Guidance, of actions such as
 di«charga increases that have the
 potential to lower waterquality. EPA
 recognizes that delays in business
 decisions, such as prdduction rate
 increases in response to market changes,
 might result because the attendant
pollutant loading rate increases would
require prior approval. As a result of the
requirement for loading limits in the
                      implementation procedures proposed
                      today, and the focus on loading rates of .
                      the BCC pollutants, EPA believes that a
                      larger number of .actions may be subject
                      to antidegradation review and prior
                      approval requirements than under
                      existing policy. The potential costs that
                      might be associated with decreased
                      flexibility to respond to market changes
                      could, therefore, also be greater than
                      under existing policy, EPA has no data
                      from which to estimate the potential
                      costs that might be associated with
                      decreased flexibility to respond to
                      market changes; However, EPA is
                      interested in any such information that
                      commenters are able to provide.
                       The definition of significant lower of
                      water quality reflects the unique
                      characteristics of the Great Lakes
                      System (as described below). Actions or
                      decisions that have the potential to
                      significantly lower water quality
                      include those that might result in any
                      increase in the actual rate of mass
                      loading of a BCC and those that require
                      an increase in an existing limitation for
                      any other pollutant. EPA is also
                      interested in comments though, on
                      whether the definition of significant
                      lowering of water quality should
                      distinguish between BCCs and other
                      chemicals. In particular, EPA is
                      interested in whether BCCs wouldie
                      adequately controlled if the same
                      definition of significant lowering of
                      water quality as is applied to other
                      chemicals were to  be used for BCCs.
                      Such an approach would have the effect
                      of tying the definition of significant
                      lowering of water quality for all
                      pollutants to increases in permit limits.
                      It would provide opportunity for a de
                      minimis demonstration for increases in
                      limitations on BCCs. It would also
                      provide opportunity for an entity to
                      attempt to demonstrate that the ambient
                      concentration of the BCC would not
                      increase. EPA also welcomes         *
                      suggestions regarding any changes or
                      specific requirements that should be
                     made or added to the de minimis test
                     and the demonstration of no ambient
                      change to address BCCs if the definition
                      of significant lowering of water quality
                     were to be changed as discussed above.
                     EPA invites comment on these
                     approaches and suggestions for others
                     that should be considered.
                     B. General Outline ofGLWQL
                     Antidegradation Process
                     1. Narrative Flow Chart of Process
                      As previously noted, the CPA
                     mandates that the EPA publish, among
                     other things, an antidegradation policy.
                     The Great Lakes antidegradation policy
                     proposed in the proposed Guidance is
 comprised of the following four
 components: antidegradation standard,
 antidegradation implementation
 procedures, antidegradation
 demonstration, and antidegradation
 decision. The policy is constructed as a
 model regulation in the following
 sequence.
   the "Antidegradation Standard" is a
 statement of the general requirements
 with regard to maintenance and
 protection of water quality in the Great
 Lakes System. It is generally the same as
 the National regulation. Additionally, it
 clarifies that the lowering of water
 quality is to be considered and
 evaluated on a pollutant-specific basis.
   The "Antidegradation
 Implementation Procedures" define the
 procedures to be used by the Great
 Lakes States and Tribes to implement
 the general Standard. Appendix E,
 sections II.B through D, establish tiered
 procedures, specific to the quality of the
 water in question, which track the tiered
 approach of the Standard. The
 procedures identify priorities of the
 Great Lakes States and Tribes with
 regard to BCCs and define situations in
 which the lowering of water quality in
 HQWs will be considered significant
 and subject to a detailed antidegradation
 demonstration review pursuant to this
 proposed Guidance. Appendix E,
 section H.D, specifically addresses
 maintenance of water quality in HQWs
 with respect to bioaccumulative
 chemicals of concern and other
 pollutants. This section also identifies
 special designations available for Lake
 Superior and defines the procedures
 and restrictions applicable to areas of
 the Lake so designated.
   The "Antidegradation
 Demonstration" defines the information
'that an entity that is seeking to
 significantly lower water quality in a
 high quality water must provide in
 support of that request. It promotes
 pollution prevention and requires that
 entities develop information regarding
 the costs associated with the use of
 alternative  or enhanced treatment that
 would eliminate the lowering of water
 quality. This section also identifies
 information that must be provided by
 any entity proposing a new or increased
 discharge of any Lake Superior
 bioaccumulative substance of
 immediate concern (BSIC) to a Lake
 Superior Outstanding International
 Resource Water.
   The "Antidegradation Decision"
 identifies the process that the State->r
 Tribe will follow in evaluating the
 information provided in the
 antidegradation demonstration and in
 reaching a decision on the significant
 lowering of water quality. The proposed

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                 'Federal Register /VoLjjS,  No.:72 '/Friday,  April IB, 1993 / ProposedRules
                                                                     20889
 Guidance directs the State or Tribe to
 require the entity to implement prudent
 and feasible pollution prevention
 alternatives that reduce the e)ctent of, or
 eliminate, the lowering of water quality.
 It also identifies minimum expenditures
 for alternative or enhanced treatment
 that will be required of an entity if the
 treatment eliminates the lowering of
 water quality. It further requires' that the
 State or Tribe consider the social and
 economic benefits in light of the ,
 environmental effects associated with
 the lowering of water quality in order to
 reach the decision. The State or Tribe
 may either conduct a full review of the'
 technical merit of the demonstration
 and make its tentative decision
 accordingly, or alternatively, the State
 or Tribe may choose, to determine that
 the administrative requirements of
- section YD. B.l.c of the preamble, have
 been met and solicit public comment
 prior to such a technical review. In the
 latter instance, the tentative decision of
 the State or Tribe shall be, as a matter
 of policy, to propose that existing water
 quality be maintained and protected.
   The Antidegradation Implementation
 Procedures place requirements on the
, decision-making of the Federal, State  ;
" and local regulatory agencies as they
 consider actions proposed by a
 regulated entity, whether involving a
 point or nonpoint source, thai: have the
. potential to lower water quality beyond
. a specific threshold. (Note that
 throughout the Policy, the term
 "Director" is used to signify the
 .decision-maker in the regulatory
 agency.) For all tier 1 waters where
. water quality for a particular pollutant
 or pollutants'does not exceed that
^required to maintain the designated uses -
 and the existing uses, the threshold is
 any lowering of water quality,, as '
 signified by any increase in the rate of
 mass loading of the pollutant or
, pollutants to the water. In such waters,
 no increase in the rate of mass loading
 of any such pollutant is allowable, so
 the procedures direct the regulatory
 agencies to write control requirements,
 such as NPDES permit limitations, that
 at a minimum,will prevent increases in
 the rate of mass loading of the pollutant
 or pollutants of concern. For
 outstanding National resource waters ^
 (tier 3), the threshold is any lowering of
• water quality for any pollutant In such
 waters, no' increase in the rate of mast
 loading of any pollutant is allowable,'so
 the procedures direct the regulatory
 agencies to write control requirements,
 such as NPDES .permit limitations, that
• at a minimum will prevent increases in
: the rate of mass loadmg'of all
 pollutants,  FoiHQWs (tier 2), the
 threshold is any significant lowering of
 water quality, a term which is defined
 in the proposed Guidance and discussed
 later in this preamble. For Lake Superior
 Basin waters provided special
 protection designation by a State or   •-',
 States, the proposed .Guidance describes
 specific restrictions on the lowering of
 water quality by any of nine listed Lake
 Superior bioaccumulative substances of
 immediate concern (BSICs). (The Bi-
 National Program to Restore and Protect
 the Lake Superior Basin identifies two
 special protection designations that
 might be adopted by the States. The first
 such designation, a Lake Superior
 Basin—Outstanding National Resource
 Water, is ah area within the basin so
 designated by a State for the purpose of
 preventing new or increased discharges
 of BSICs from point sources. The
 second, Outstanding International
 Resource Water, exists if the States
 (Michigan, Minnesota and Wisconsin)
 so designate the Lake Superior Basin,
 and has the effect of preventing the new
 or increased discharge of BSICs until an
 adequate antidegradation
 demonstration,, which includes the
 installation of the best technology- in
 process and treatment, is
 accomplished.) For substances other
 than the BSICs, the Lake Superior.
 special protection designations have no
 direct effect, and such substances are
 treated the same as in the remainder of
 the Great Lakes System.
  Proposed actions that have the
 potential to significantly lower water
 quality in HQWs must be evaluated by
 the regulatory agency to determine if
 they are necessary to accommodate   .
 important economic and social •
 development in the;area in which the
 waters are located. To guide the
regulatory agency in making this
 determination, the proposed Guidance
 establishes two tests: one that
 demonstrates that the significant  •
 lowering of water quality is necessary,
 i.e., the lowering of water quality cannot
 be prevented through the use of prudent
 and feasible pollution prevention
 techniques, or alternative or enhanced "'
 treatment techniques that are available
 within a specified cost range; and a
 second, subsequent test that is used to
 establish that tiie action significantly
 lowering water quality will
 accommodate important economic and
 social development in the area in which
 the'waters are located,,        . .  •'.:',.
  •The proposed Guidance identifies five
 categories of pollution prevention
 alternatives that must be evaluated:
 substitution of BCCs with other    •.;'.-..
 nonbioaccumulative and nontoxic
 chemicals; application of .water'  -••.-.
 conservation methods; waste source   '  ;
 reductions within process streams;
 .recycle arid reuse of waste byproducts;
 and manufacturing process, operational
 changes. In addition, the Director may
 add categories of pollution prevention
 alternatives which are applicable to
 specific situations. For instance, the
 alternative of scaling down the amount
 of fill might be appropriate in a section
 404 permit action. The proposed
 Guidance requires that the entity
 proposing the action supply to the
 regulatory agency information on the
 alternatives available, their
 effectiveness, and costs, along with any
 other information the agency might • •
 require to determine if ^specific
 alternatives alone or in combination are
 prudent and feasible. The Director will
 require the entity to implement
 alternatives that are determined to be
 prudent and feasible and will establish
" control requirements that reflect the
 implementation of such alternatives.
 The implementation of prudent and
 feasible pollution prevention
 alternatives need not entirely eliminate
 the significant lowering of water, quality
 for them tabe required by the Director.
 Unlike the alternative or enhanced
 treatment provision discussed below,
 prudent and feasible pollution
 prevention alternatives are to be
"required whenever they are effective at
 reducing the degree  to which water
 quality would be significantly lowered"
 by an action., ." V
   The proposed Guidance also
 identifies benchmarks to be applied by
 the  regulatory agency in determining if
 alternative or enhanced treatment
 techniques should be required, in   .   ,
 addition to prudent  and feasible
 pollution prevention .alternatives, to
 eliminate the lowering of water quality:
 that would otherwise result from an
 action. The proposed Guidance directs
 the  entity proposingthe action to  ~
 identify for review by the,regulatory
 agency any alternative or enhanced
•treatment techniques available that
 would, in conjunction with the       , '•-
 implementation of prudent and feasible
 pollution prevention alternatives,
/eliminate the need to significantly lower
 water quality, along  with, the associated
 capital and operation and maintenance
 costs. In addition, the, entity must
 provide comparable information on the
 capital and operation and maintenance
 costs associated with pollution control
 facilities necessary to achieve    -
 compliance; with applicable Federal  '
 effluent guidelines-based or water
 quality-based effluent limitations. The
 proposed Guidance directs the
 regulatory agency to require the    '•
 implementation; of such alternative or   •

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Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
 enhanced treatment techniques that are
 available at a cost ratio of l.l to one
 (alternative or enhanced treatment
 compared to that otherwise required).
   If, after the above evaluations and
 implementation of the prudent and
 feasible pollution prevention alternative
 or alternatives, the proposed action will
 continue to significantly lower water
 quality, then the action must he
 evaluated by the regulatory agency to
 establish that the significant lowering of
 water quality will accommodate
 important economic or social
 development in the area in which the
 waters aro located. The proposed
 Guidance requires that the entity
 proposing the action identify
 developments,  falling in any of the
 following categories, that will be
 foregone if the significant lowering of
 water quality is not allowed; increase in
 the number of jobs; increase In personal
 income or wages; reduction in the
 unemployment rate or other social
 service expenses; increase in tax
 revenues; or provision of necessary
 social services.  No benchmarks are
 specified for the evaluation of the social
 and economic developments; rather the
 regulatory agency is provided the
 flexibility to fit the analysis to the
 condition of the community and area
 involved. Nonetheless, the action
 should have some positive
 developmental  effect in one or more of
 the categories listed above or the
 lowering of water quality should not be
 approved by the regulatory agency.
 Furthermore, the proposed Guidance
 provides for a review by the Director of
 information on  the environmental
 effects of the action, after required
 pollution prevention/control
 alternatives are  implemented. Such
 environmental effects would not be
 limited to the water media; the
 information could be used by the
 regulatory agency to account for cross-
 media effects in making the final
 decision,
  The proposed Guidance provides two
 options to the regulatory agency on the
 draft decision regarding the lowering of
 water quality, which vary depending on
 how the agency decides to complete the
 roviaw of the social and economic
 developments. The agency may wish to
 conduct a full review of the merit of the
action and make its tentative decision
accordingly, in which case it would
public notice the resulting proposed
decision and the basis  for the decision.
Alternatively, the agency may wish to
take public comment on the action and
associated social and economic
 developments before it renders a
decision based on its review of the
merits of the antidegradation
                      demonstration. In this case, the agency
                      would public notice a tentative decision
                      to maintain and protect water quality
                      (i.e., reject the significant lowering of
                      water quality). The public notice would
                      include for public review and comment
                      the antidegradation demonstration
                      •provided by the entity proposing the
                      action, along with the agency's
                      determination that the demonstration is
                      administratively complete. The notice
                      would furthermore indicate that the
                      agency had deferred its decision on
                      allowing a lowering of water quality
                      pending review of the public comment,
                      and that the tentative decision to
                      maintain and protect water quality may
                      be revised based on public comment
                      and the agency's review of the full
                      antidegradation demonstration.

                      2, Preconditions for Implementation of
                      Antidegradation Procedures
                        Several other ongoing water quality
                      management planning processes are
                      integral to antidegradation
                      implementation, and for the purpose of '
                      this procedure are expected to be
                      implemented correctly as preconditions
                      to antidegradation review of any
                      proposed action that could significantly
                      lower ambient water quality.
                      Deficiencies in these underlying
                      programs should be corrected before any
                      activity is considered .that could
                      significantly lower water quality.  .
                       At the onset of the antidegradation
                      review procedure, the water quality
                      standards established for the receiving
                      water body pursuant to 40 CFR131
                      must be correct and appropriate. The
                      term "water quality standards" as used
                      here is defined at 40 CFR 131.3(i) and
                      includes both the designated uses of the
                      water body and the criteria that support
                      the designated uses. Existing uses and,
                      where attainable, fishable/swimmable
                      uses are expected to be reflected in the
                     .use designation, and appropriate criteria
                      to support those uses adopted. It is
                      assumed that if the standards have
                      undergone the triennial review process.
                      in the last three years and are approved
                      by EPA, they are correct and
                      appropriate.
                       The potential for an action to result in
                      a significant lowering of water quality
                      will be considered on a parameter-by-
                      parameter basis. Unless the appropriate
                      and established water quality standards
                      have been achieved, there is no
                      potential to allow an action that could
                      lower water quality, subject to an
                      antidegradation review, because there
                      would be no remaining unused
                      assimilative capacity. Water quality
                      standard exceedances may be a result of
                      any one or a combination of factors,
                      including but not limited to: an
 inadequate total maximum daily load
 (TMDL), wasteload allocation (WLA), or
 load allocation (LA); uncontrolled
 sources; and point source dischargers
 that are not in compliance with their
 NPDES. permits, Such water quality
 standards violations must be corrected
 prior to consideration of an increased
 loading of a pollutant from any source
 through the antidegradation review
 process. Further, if water quality
 standards are not being achieved, the   •;
 State should establish a revised TMDL/
 WLA/LA; bring non-compliant
 dischargers into compliance with
 appropriate water quality-based effluent
 limitations; or, in some other way,
 correct the ambient water quality
 problem.

 3. Steps Preceding an Antidegradation  .
 Review
   a. Establish That the Action May
 Significantly Lower Water Quality. Prior
 to requiring an antidegradation
 demonstration and review the
 regulatory agency must establish that
 the proposed action results in, or may
 result in, a significant lowering of water
 quality. The definition of significant
 lowering of water quality differentiates
 between BCCs and other pollutants as
 follows (see section VII.C.2 of the
 preamble for a detailed discussion of the
• definition of significant lowering of
 water quality and its implications): Any
 increase from the baseline rate of mass
 loading of a BCC is significant lowering
 of water quality; and for pollutants other
 than BCCs, any increase in the
 permitted levels (or otherwise-allowable
 mass loading rate) unless, such an
 increase would have no effect, or a de
 minimis effect, on the receiving water,
 is significant lowering of water quality.
  For point source discharges, examples
 would include an increased effluent
 load limit for a non-BGC in a reissued
 NPDES permit, where such an increase
 would have greater than a de minimis
 effect on the receiving water; or for
 BCCs, a deliberate action by a permittee,
 such as addition of a new production
 line, that would result in an increased
 mass loading rate of a BCC above the
 baseline loading rate for the pollutant as
 established in the permit.
  As regards BCCs, when discussing
 NPDES permit issuance, at this poinHn
 the process the permit issuance    , '.
 authority will have defined the
 applicable "baseline" (i.e., the lowest of
 either the existing limit, the "new" • '-
 technology-based effluent limit, the
 "new" water quality-based effluent
 limit, or existing effluent quality), and
 any increase from this "baseline" that is
 requested by the permittee. The mass
 loading rate will be restricted to this

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                 ^Federal Register  /Vol. 58, No. 72 / Friday, April  16,  1993  /  Proposed Rules
                                                                     20891
 "baseline in the permit unless the
 permittee justifies the increase to the.
 satisfaction of the permitting agency,
 after the opportunity for public input,
 through the antidegradation process set
 forth in the proposed Guidance. The
 baseline for a BCC could, howeverr be
 adjusted without an antidegradation
 demonstration to account for an
 increase in discharge volume that
 results hi an increased rate of mass
 loading of a BCC pollutant due solely to
 the presence of that pollutant in the
 intake water.
   Where independent regulatory
 authority requiring compliance with
 water quality standards already exists,
 other regulated actions that may result
 in an increased rate, of mass loading of •
 pollutants and, potentially, the
 significant lowering of water quality
 would also be subject to antidegradation
 review. Review of such proposed
 actions by the regulatory-agency should ,
 determine whether the action has the
. potential to significantly lower water
 quality, and, if so, the action is required
 to go through the antidegradation
 process. Depending'on Federal, State
 and Tribal authorities, such,aclivities
 may include actions, such as changes in
 land use, which result in increased
 honpoint pollutant runoff or removal of
 a riparian buffer strip which may allow
 increased agricultural runoff. Where
 there is regulatory authority requiring
 compliance with water quality
 standards, regulatory agencies •   .      •
 permitting ah- emissions (subject to
 section 112{m) of the Clean Air Act or
 similar State authorities) should
 consider the potential for significant
 lowering of water quality, and if
 applicable, subjected to an    •-  '
 antidegradation review. EPA does not
 intend through, the proposed Guidance
 to require compliance with  '" ,."   '•
 antidegradation provisions where
 independent regulatory authority
 requiring compliance with water quality
 standards does not already exist.
:'  b. Characterize the Receiving Water.
 The antidegradatioa guidance
 establishes differing restrictions oh the
.- lowering of water quality and
 requirements for an antidegradation
 review depending on both the quality of
 the receiving water and the character of
 its use designation. ONRWs are
 identified at this point in the process;
 all.qther waters are characterized
; pollutant by pollutant as either
 achieving or not achieving .the       :
 applicable fishable/swimmable water
 quality criteria defined elsewhere;in the
 proposed Guidance. Where the water
 quality is achieving the water quality
 criteria for a pollutant, that water is
 considered a HQW with respect to that
pollutant. Other special designations
applicable to Lake Superior are
discussed separately in the proposed
Guidance. Two outcomes are possible, ,
and resulting implications are as
follows;            •
  i. Waters whose quality does not
achieve the applicable water quality
criteria for any parameter cannot be  :'
lowered in Water quality with respect to-;
that parameter. ONRWs cannot be
lowered in water quality except for
lowering of water quality related to
short-term, temporary (i.e., weeks or
months) activities. That is, there can be ,
no long-term change in ambient Water
quality hi ONRWs except for
improvement;  or     ,               :
  ii. Actions that may significantly
lower water quality with regard  to a
pollutant for which that water is a HQW
can only be allowed if an
antidegradation demonstration is'.,
provided and the regulatory agency
determines that it adequately supports
the lowering.             ..

C. Activities Covered by the Great Lakes
Antidegradation Guidance  >          :
  The antidegradation guidance applies
to any activity over which independent
regulatory authority requiring •.
compliance with water quality
standards exists, that may result in.a
lowering of water quality in any water
body in the Great Lakes System. The
activities addressed include those
resulting in point source discharges of
pollutants to a water body and those
that result in npnpoint loadings  of
pollutants to a water body. As discussed
in detail hi B.3.a above and C.3 below,
EPA expressly intends for this proposed
Guidance to be applied to npnpoint
source activities, to the extent that
regulatory authorities exist, but this
proposed Guidance does not create any
new regulatory authorities.
  The proposed Guidance establishes an
antidegradation policy that differs in
certain respects from the existing
Federal policy to account for the
characteristics of the Great Lakes
System, while  retaining the basic
framework of the Federal regulation. As
is the case with the Federal regulation,
the Great Lakes Antidegradation  '
Standard establishes differing levels of
protection against degradation based on
the water quality in the affected  water
body.              ,            .  ., ••--..

1. Distinction Between High Quality
Waters, Outstanding National Resource
Waters, and Other Classes of Waters
  a. Existing Federal Policy. EPA has
defihed'a "tiered" antidegradation;
approach for the protection and
maintenance of water quality. The
 Federal antidegradation policy at 40
 CFR 131.12 estabh'shes three tiers of  ,
 protection on the lowering of water
 quality in a water body and a fourth
 requirement apph'cable to thermal
 discharges.
   The first tier, applicable to all waters,
 requires protection and maintenance of
 all existing uses of the water body and :
 the level of water quality necessary for
 those uses. Under tier 1, water quality
 in any water body can be lowered only
 to the point at which all existing uses
 are still fully protected. It is not     ,
 permissible to allow water quality.to be
 lowered to the extent that an existing or-
 designated use is impaired. Under
 existing Federal policy no justification
 is required in order to lower water
 quality to the  level necessary,to
 maintain the "existing use."     .   '
   The second tier provides protection of
 actual water quality in water bodies that
 support the propagation of fish,      '
 shellfish, and wildlife and recreation in
 and on the water ("fishable/  -       "
 swimmable"). Limited degradation of
 such HQWs may he allowable if ,.
 necessary for important social and
 economic development in the areas hi ;
 which the waters are located, butbnly
 after pubUc-involvement and  ;
 intergovernmental coordination, and
 only as long as the water quality
 remains adequate to be "fishable/
 swimmable" and fully protects existhig
 uses."••   •-'... /'  '•- "  .-'• ' . '..  "•_ -     '- -
   The third tier affords special
 protection to waters that have been
 designated Outstanding National   .
 Resource Waters [ONRWs) by the States
 or Tribes. The water quality in ONRWs
 must be maintained and protected.
 Short-term temporary, changes may be
 consistent with that level of protection.
   b. GLWQI Guidance. The Great Lake&
 antidegradation standard in the      •-•;-'••
 proposed Guidance retains the tiered
 structure of the Federal policy, but is
 more specific hi certain respects.
.  The first provision requires, in part,
 that the water quality necessary to   .
 protect existing uses be maintained and
 protected. As with the Federal policy,
 this provision is intended to ensure that
 under no circumstance is the water
 quality reduced to the extent that a
 criteria derived tq protect an existing
 use is exceeded. The proposed
 Guidance explicitly refers to the
 definition of existing uses found in the
 Federal water quality standards
 regulations, hi large part to distinguish
 the application, in this provision of
 existing uses from designated uses.
 During Work Group deliberations on the
 proposed Guidarice,:concerns were
 raised by several parties that the Federal
' policyhad been incorrectly interpreted

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Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
by many States around the country as
applying only to designated uses, as
they are defined by the water quality
standards regulation. Further concern
wqs expressed that designation of uses
by States or Tribes would not
thoroughly cover all existing uses of a
water body. The intent of the language
chosen for the proposed Guidance was
to clarify the effect of the language in
the Federal policy and ensure that
deficiencies in the State or Tribal use
designation procedures would not limit
the protection to be afforded water
quality under the Great Lakes
antidegradaUon guidance. For the
purposes of this proposed Guidance, for
any water body in which the water
quality attained on or after November
28,1975, is equal to or better than that
required to support a specific use, that
use is considered an existing use,
whether or not it has been so designated
in a State's water quality standards. In
no case can the water quality be lowered
below that level required to protect and
maintain such existing uses.
  The first provision of the Great Lakes
antidegradaUon standard differs frc-m
the existing Federal policy in that it
explicitly prohibits the lowering of
water quality in situations where either
an existing or a designated use is
impaired. The Federal policy does not
include the designated use reference.
This prohibition is applied on a
pollutant by pollutant basis and serves
as a restriction on the specific pollutant
or pollutants that are impairing the
designated use. EPA considers a water
body to be impaired where the water
quality criterion necessary to maintain
tho existing or designated use for a
pollutant or pollutants is exceeded.
While this proposed provision differs
from the existing Federal
antidegradaUon policy on its face, it is
not more stringent than secUon
301(b)(lKQ of the CWA or the other
regulations that EPA has adopted to
protect water quality. In particular, the
existing water quality-based permitting
regulation (40 CFR 122.44(d)(l)) for the
NPDES requires the development of
affluent limitations that achieve the
water quality standards applicable to
the receiving water. Similarly, the
regulations (40 CFR 130.7) and guidance
on the establishment of total maximum
daily loads, wasteload allocations, and
load allocations require that applicable
water quality standards be attained and
maintained. Thus, the prohibition in the
proposed Guidance on the lowering of
water quality in situations where a
designated use is impaired simply
brings the antidegradation guidance into
explicit conformance with other
                      regulatory requirements regarding the
                      protection of water quality. In the
                      context of the whole of the proposed
                      Guidance, this provision would
                      preclude the lowering of water quality
                      for a pollutant or pollutants in  '
                      situations where the concentration of
                      the pollutant or pollutants exceeds the  -
                      proposed Great Lakes water quality
                      criteria.
                        EPA also believes that it would be
                      consistent with the policies of the
                      GLWQA to prohibit any lowering of
                      water quality in those waters in the
                      Great Lakes System which do not meet
                      the goal uses listed in section 101(a) of
                      the CWA for the pollutant or pollutants
                      that impair those uses. The CPA
                      requires that the proposed Guidance not
                      only be consistent with the CWA, but
                      also conform with the objectives of the
                      GLWQA. The purposed the GLWQA is
                      to restore and maintain the chemical,
                      physical, and biological integrity of the
                      waters of the Great Lakes Basin
                      Ecosystem. Among its objectives is the
                      restoration of beneficial uses, regardless
                      of whether they are designated uses.
                      The term beneficial uses is not
                      specifically defined in the GLWQA;
                      however, impairment of beneficial  uses
                      is explicitly defined in Annex 2 to the
                      GLWQA as adverse effects on a list of
                      uses. Among the listed beneficial uses
                      that might be impaired are uses that are
                      analogous to the fishable/swimmable
                      uses in the CWA. EPA believes that it
                      is reasonable to conclude that the
                      beneficial use provisions of the GLWQA
                      'encompass the relevant portions of the
                      fishable/swimmable goals of the CWA.
                        EPA considered an explicit proposal
                      prohibiting any lowering of water
                      quality in those waters in the Great
                      Lakes System which do not meet the
                      goal uses listed in section 101(a) of die
                      CWA for the pollutant or pollutants that
                      impair those uses. Such a provision
                      would have served the objectives of the
                      GLWQA by working toward the
                      restoration of beneficial uses. It was
                      based on an ecosystem approach, taking
                      into account the unique characteristics
                      of the Great Lakes System, where the
                      whole is only as healthy as its parts.
                      While the allowance of increased  .
                      discharges with only a localized effect.
                      might be acceptable in the context of a
                      different aquatic system, an argument
                      can be^nade that in order to account for
                      the unique characteristics of the Great
                      Lakes System (see Great Lakes States'
                      Experience, A.l.c. above), any increased
                      addition of a pollutant or pollutants to
                      a waterbody in the Great Lakes System
                      which has not attained the beneficial
                      uses for that pollutant or pollutant
                      should be prohibited. Where the water
                      quality standards for fishable/
swimmable uses are not achieved, the
beneficial uses are likewise impaired. «
  This provision is not proposed in the
proposed Guidance because EPA
believes that it would be redundant
with the provisions protecting existing
and designated uses discussed above.
That is, the existing uses are, or the
designated uses will be, fishable/
swimmable. EPA may reconsider this
position if other parts of the proposed
Guidance change such that the above
redundancy no longer exists.
  The second tier or the Great Lakes
antidegradation standard is identical to
the existing Federal policy in most   •
respects. Both require the protection
and maintenance of water quality that
exceeds (i.e., is better than) the level
necessary to support the propagation of
fish, shellfish, and wildlife and
recreation in and on the water, except
in limited circumstances. In both, such,
circumstances are limited to those in
which the State finds, after full
satisfaction of intergovernmental
coordination and public participation
provisions of the State's continuing
planning process, that allowing lower
water quality is necessary to
accommodate important economic or
social development in the area in which
the waters are located. Finally, both
require that in allowing such
degradation, the State assure that water
quality adequate to protect existing uses
is fully maintained, and that there is
achieved the highest statutory and
regulatory requirements for all new and
existing point sources and all cost
effective and reasonable best
management practices for nonpoint
source control?. The information that is
developed and utilized to make a
decision about the lowering of water
quality in a high quality water is termed
an antidegradation demonstration.
  The Great Lakes antidegradation
standard is more specific than Federal
policy in one respect, however. Whereas
the existing Federal policy is silent
regarding the manner in which water
quality is assessed to determine if it
exceeds the level necessary to support
the propagation of fish, shellfish, and
wildlife and recreation in and oh the
water, the Great Lakes standard
explicitly requires that water quality he
assessed on a pollutant-by-pollutant
basis. Under the Great Lakes
antidegradation standard, where, for any
parameter, the water quality exceeds
that level necessary to support the,
propagation of fish, shellfish, and   ""'
wildlife and recreation in and on the
waters, that water shall be considered
high quality for that parameter and that
quality shall be maintained and
protected, except when, as described

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                 Federal Register / Vol.  58,  No. 72;.-"./ Friday, April 16, 1993 / Proposed Rules
                                                                      20.893
 above, an antidegradation
 demonstration adequately justifies the
 lowering of water quality.
   This approach is consistent with
 National guidance, which indicates that
 "all parameters do not need to be better
 quality than the State's ambient criteria
 for the water to be deemed a high     r
 quality water" and that EPA believes
 that "it is best to apply antidegradation
 on a pollutant-byrpollutant basis." -
 ("Application of Antidegradation Policy
 to the Niagara River", memorandum:   ,
 from Martha G. Prqthro, Director, Office
 of Water Regulations and Standards to
 Richard L. Gaspe, Director, Water  ;
 Management Division, Region II, dated
 August 4,1989, which is available in
 the-administrative record for this    .
 rulemaking). The rationale provided for
 this recommendation is that other
 approaches would result in "a potential
., for,a large number, of waters not to
 receive antidegradation protection
 which is.important to attaining the goals
• of the Clean Water Act to restore and
 maintain the integrity of the Nation's
 waters." .•       -    .••''•      -•   T
   The pollutarit-by-pollutant focus on
• water quality also represents a
 reasonable, workable approach to
 antidegradation in the context of the
 water quality criteria for the Great  Lakes
 System that are'being propose'd in  the
 proposed Guidance. These criteria are
! intended to support the existing
 fishable/swimmable use of the Great
 Lakes System waters and create a de
 facto designated fishable/swimmable
 use for the Great Lakes System, Where
 such criteria are achieved, the water is,
 for those pollutants, .of a quality
 sufficient to support fishing and
 swimming, and is high quality. There is
 no opportunity,to lower water quality
 for the pollutants in waters where  the
 criteria for those pollutants are riot
 achieved.                   -:
   EPA requests comment on an
 "alternative approach to assessing water
 quality that would look at water quality
 as an "all or nothing" proposition,
 based on whether or not all applicable
 numeric water quality criteria are met.
 Under such an approach, failure of any
 pollutant to achieve the water quality
 criterion would indicate that the water
- body was not supporting the use that
 the criterion was designed to protect
 and, therefore, could not be degraded
 with respect to any pollutant. The     :
 criteria proposed establish a de,facto
, fishable/swimmable designated use for
 the entire system. The "all or nothing"'
 approach would say that if any .  r
 pollutant exceeds one of the Great Lakes
 criteria, the water body would not be
 supporting the designated use.  Because
 there are substances in the Great Lakes
 System that presently exceed the Great
 Lakes criteria, the "all or nothing".
 approach would; from the outset,
 preclude any lowering of water quality
 for any pollutant, and would continue  -
 to do so until such time assail criteria
 are met. EPA believes that the proposed
 Guidance is more reasonable than this  -
 alternative because, in combination
 with the implementation procedures
 proposed in appendixFto part 132, it
 would require that loadings of
 pollutants not supporting the designated
 use be restricted (i.e., the
 antidegradation procedures would
 prohibit any additional lowering of
 water quality-for such pollutants}* but
 would recognize that for other
 pollutants unused assimilative capacity
 exists such that the loadings for such
 substances could be increased and  '
 criteria for those pollutants still
 achieved, EPA further believes that the
 proposed approach is more appropriate,
 in light of the national water quality-   •
 based permitting approach (40 CFR
 122.44(d)(l)),wMch requires" controls
 on pollutants the discharge of which has
 the reasonable potential to cause or
 contribute  to ah exceedance of State
 water quality criteria, but,does not
 require controls on, or prohibit   .
.increases in the discharge of, other
 pollutants. ,  ;   •     .    .;>-'   .     ;
 • EPA requests comment on a second
 alternative approach that would also
 look,at whether all criteria were being
 met in a water body in order to        :
 determine the level of protection       ;.
 provided by antidegradation. In this
 approach, if any pollutant was
 exceeding an applicable criterion, water
. quality could still be lowered with
 respect to other pollutants after ah
 antidegradation demonstration-review.'
 The antidegradation demonstration
 would; however, be less rigorous, than if
 all the pollutants'iri the water body were
 achieving applicable criteria.
 • As with the all or nothing approach '
 described above,  under this approach  ,
 one would"determine that a water body
 was not high quality if any pollutant  .
 exceeded an applicable criterion.
 However, the lowering of water quality
 for all pollutants would not be •
 prohibited when any pollutant exceeds
 a criterion. Instead, it would allow for
 lowering of water quality for those
 pollutants that were meeting criteria.
 This approach also differs from the
 proposed approach, which would
 similarly allow for lowering of water
 quality for such pollutants, in that it
 would require a less rigorous
 antidegradation demonstration in such
 cases. This alternative might be viewed
 as a middle ground between the all of
 nothing approach and the proposed
 approach* or a tier IVfc- level of     ._  •  •
 protection, in situations where waters
 are not meeting criteria for some  '
 pollutants,,but are meeting criteria for
 others, EPA welcomes comment on this
 approach, particularly with regard to the
 level of antidegradation demonstration
 that should be required to justify
 lowering of water quality in the
 situation it covers. EPA is also
 interested in whether cpmmenters   .
 believe that such an approach would be
 adequately protective of the Great Lakes,
 System.  •               t  \  .•
 , EPA requests comment on a third
 alternative that would rely on a generic
 measure of water quality as opposed to
 water quality criteria for individual
 pollutants. Under such an approach, a
 State would use a measure of water
 quality that integrates chemical water
 quality criteria, biological criteria, and
 other appropriate criteria to assess the
 quality of a water body and determine
 if it'is a high quality water subject to the
 tier 2 level of protection. Such an
 approach could also potentially be used
 to assess whether water quality is
 significantly lowered as a result of an
 increased discharge to a water body.
 Such an approach is not proposed in the
 proposed Guidance because.EPA is
 unaware of; any such generic measures
 that adequately Integrate all of the
 subtle effects on rwater quality that are
 captured by the independent
 application of pumeric water quality
 criteria and other appropriate State
 derived water quality criteria. The
 reader is-referred to EPA's June 19,
 1991, "Policy on the Use of Biological'
 Assessments and Criteria in the Water
 Quality Program" and EPA's March
 1991 "Technical Support Document for
 Water Quality-based Toxics Control",
/which are both included, in the
 administrative record for this
 rulemaking, for a more complete       -
 discussion of the subject of independent
 applicability. Nonetheless, EPA would
 be interested in any new information
 that mightaddress the applicability of
 such an approach in the context of
 antidegradation, and encourages
 commenters tcf provide such
 information.  •".'•.-       :
   EPA also requests comment on a
 fourth alternative approach for defining
 water quality^ not proposed in the
 proposed Guidance, that would allow
 the evaluation of mixtures, rather than
 individual pollutants, jThis approach
 would evaluate the net effect of a
 discharge on water quality and:
 determine whether die discharge
 improved or lowered water quality on
 thewhole.      \."          ;.-..''  ;'•-
   Under a mixture approach, a   _   '
 discharger could demonstrate thatthe  •

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Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
effects of increasing the discharge of one
or more individual pollutants in a
discharge would be offset by a
concurrent decrease in one or more
other pollutants. Using a technique such
as toxicity equivalency factors (TEFs),
the discharger would have the
opportunity to show that the net toxicity
or adverse effect on water quality of the
  Soposed discharge would not be greater
  an the current discharge. If successful
in such a showing, the permitting
agency could determine that water
quality would not be significantly
lowered and the change in the discharge
of pollutants to the water body would
not be subject to an antidegradation
demonstration.
  The mixture approach is of interest
because it would allow for trading of
pollutant loadings to most efficiently
maintain water quality. The approach
proposed in the proposed Guidance
would require that the change in the
loading of each pollutant be evaluated
separately to determine if it is necessary
for important social and economic
development. In contrast, the mixture
approach would not require an
antidegradation demonstration when
some pollutant loadings were proposed
to increase provided that others were
reduced and the net effect was
determined to be no adverse change in
water quality. Because it would allow a
regulated entity to determine where it
could most efficiently reduce or prevent
pollutant loadings, with the incentive of
avoiding antidegradation demonstration
requirements, the  mixture approach has
the potential to be less costly than other
approaches while  still maintaining or
improving overall water quality.
  Concerns with implementation of the
mixture approach have led EPA to not
propose it fix the proposed Guidance.
Thasa are described below and EPA
invites comment on each.
  The mixture approach requires that
the toxic effects of the chemicals in a
discharge interact in a known way to
produce a specific effect. The subject of
odditivity of toxic effects and the
development and  use of TEFs are
discussed in more detail in section
Vin.D. of the preamble. These concepts
ware considered for inclusion in the
Great Lakes Guidance, but the proposed
Guidance does not provide for their use.
EPA has concerns regarding the
practical application of these concepts,
in particular as they would be applied
in complex effluents. To determine the
net toxic effect of a discharge requires
that the pollutants in the discharge have
comparable toxic endpoints, which is
not necessarily the case for many
pollutant mixtures in effluents. TEFs
have been used to relate toxicities of
                      homologues within families of
                      pollutants, such as the chlorinated
                      dibenzo-p-dioxins, or between
                      toxicologically similar families, such as
                      the chlorinated dibenzo-p-dioxins and
                      the chlorinated dibenzofurans. TEFs
                      may also be applicable to other cla'sses
                      of pollutants, such as metals, but their
                      applicability would require that the
                      pollutants have similar toxic effects and
                      the same mode of action. Therefore, the
                      use of TEFs would appear to have
                      limited applicability for many pollutant
                      mixtures in effluents. While the use of
                      whole effluent toxicity as a measure of
                      the effect of a mixture is appropriate in
                      addressing effects on aquatic life, it does
                      not address effects  on human health or
                      wildlife, and does not address all toxic
                      endpoints. Use of whole effluent
                      toxicity alone, therefore, would not form
                      the basis for an acceptable mixture
                      approach. EPA invites comments and
                      suggestions as to how these technical
                      issues could be addressed.
                        To accurately assess the overall effect
                      of a discharge on water quality, the
                      mixture approach could require that a
                      number of pollutants in the discharge be
                      factored into the analysis to determine
                      the net change in water quality. This
                      analysis could prove to be burdensome.
                      In addition, in order to maintain the
                      specific pollutant discharge reductions
                      which offset the increases in other
                      pollutants, the mixture approach could
                      require the establishment of limitations
                      'on substances that would otherwise not
                      have required limits. The Clean Water
                      Act and Federal regulations currently
                      define the minimum requirements with
                      respect to pollutants that must be
                      limited to protect water quality (40 CFR
                      122.44(d){l)), and the guidance
                      proposed in procedure 5 of appendix F
                      to part 132 provides additional direction
                      on this decision. EPA invites comments
                      and suggestions on how interactions of
                      pollutants could be assessed and .
                      considered within the context of the
                      Antidegradation Policy to address
                      mixtures of pollutants, and on how to
                      establish guidelines on the pollutants to
                      include in a mixture analysis. EPA is
                      also interested in information on current
                      practices that might be used to help set
                      such guidelines.
                      2. Significant Lowering of Water Quality
                        For'those waters in the Great Lakes in
                      which the water quality exceeds the
                      levels necessary to support the fishable/
                      swimmable goal of section 101(a)(2) of
                      the Clean Water Act, termed high
                      quality or tier 2 waters, the Great Lakes
                      Antidegradation Guidance procedures
                      identify the criteria that must be
                      satisfied before a decision can be made
                      to allow water quality to be lowered
 significantly. EPA and the Great Lakes
 States have chosen to prioritize actions
 that pose a threat to the protection and
 maintenance of water quality in high
 quality waters by focussing the
 proposed Guidance on "significant
 lowering of water quality." The
 proposed Guidance requires that high
 quality waters (HQWs) not be
 significantly lowered in quality unless
 justified to the satisfaction of the
 regulatory agency through an  • .,   .'. .
 antidegradation demonstration.
   Significant lowering of water quality
 is definedln the proposed Guidance.
 The definition differs for
 bioaccumulatiye chemicals of concern
 (BCCs) and all other pollutants. The
 BCCs and the rationale for giving such
 chemicals a higher priority in the Great
 Lakes System are topics discussed in
 detail elsewhere in the proposed
 Guidance. In general, any increase in
 the rate of mass loading of any BCC is
 considered to result in a significant
 lowering of water quality. The only
 exception to this rule occurs when the
 increase in the observed mass loading
 rate of a BCC is riot associate'd with a
 discernable action at the source (point
 or npnpoint) of the BCC, and is,
 therefore, likely to be an apparent rather
 than real increase.
   The term "action" is to be interpreted
 very broadly and will include, for point
, sources, activities or combinations of
 activities that contribute pollutants
 (BCCs) to the waste stream, and thereby
 the water body, such as, but not limited
 to, creation of a new source,  addition of
 a new process or product line at an
 existing source, expansion of processing
 capacity, modifications of the waste
 handling or treatment processes,
 changes in.raw materials, and new
 sanitary or industrial hookups to a
 municipal sewer system. Generally,
 simply increasing the volume of the
 discharge with no addition of a BCC
 pollutant to the waste stream is not
 considered an action that would trigger
 an antidegradation demonstration.
 Similarly, for nonpoint sources, where
 independent regulatory authority
 requiring compliance with water quality
 standards exists an action might be a
 new construction activity or
 development that contributes new or
 increased pollutant loading from
 nonpoint sources or installation of a
 new factory or incinerator that might be
 a source of air pollutant fallout into the
 Great Lakes System.       '  '" . •
   The link in the definition between an
 increase in the rate of mass loading of
 a BCC and a discernable action is
 intended to prevent apparent increases
 in the rate of mass loading from
 triggering a full antidegradation

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                 Federal Register /Vol. 58, No. 72 /Friday  April 16  1993  / Proposed Rules
                                                                     20895
 demonstration. EPA and the States were
 concerned that at times little data would
 be available to characterize baseline
 ;mass loading rates at the time decisions
 were being made regarding NPDES
 permit requirements or other such
 control requirements. Subsequent
 monitoring of the mass loading rates
 might reveal, an increase above that  ,
 indicated by the analysis of the initially
 available data, due solely to data
 variability and not to an actual increase
 in the rate of mass loading. To address
 this concern, the definition provides
 that an increase in the measured rate of
 mass loading of a BCC must be tied to
 an action at the source of the pollutant
 for it to be considered significant
 lowering of water quality that requires
 an antidegradation demonstration. This
 concern was also considered in the
 development of alternative control/
 requirements that could be imposed on
 an entity to maintain water quality (e.g.,
 existing effluent quality restrictions),'.
 which are discussed later in the  :
 proposed Guidance.
  , For pollutants other than BOCs,
 significant lowering of water quality is
, generally considered to occur whenever
 a source seeks a change in its permit,
 limits (or a change above a de minimis   '
, increase in the rate of mass loading). For
 nonpoint sources, where independent
 regulatory authority requiring
 compliance with water quality
 standards, a significant lowering of
 water quality is generally considered to
 occur whenever the rate of mass loading
 authorized by^ the governing nonpoint
 source program is increased. Two
 exceptions to this general rule exist for
 noii-BCC pollutants. The first exception
 : occurs when the ambient concentration
 o.f the pollutantln the affected water
 body, outside of the designated mixing
 zone, where applicable, will not
 increase. The Director may'also look at
 the effect of the increase on the
 sediments and biota to determine if they
 will be adversely affected. The second
 exception may result where the .increase
 is de minimis, or insignificant, in
 comparison to the unused assimilative
 capacity of the receiving water for that
 pollutant. The de minimis
 demonstration is discussed in detail
 later in this notice.
   EPA .believes that the above definition
 of significant lowering of water quality ,
 for non-BCC pollutants is adequate to
 maintain and protect water quality in  -.
 the Great Lakes System. It does not
 undercut the requirement that
 limitations protect existing uses, i.e.,
 protect all applicable water quality  .
 standards. Rather, it limits the
 requirement to conduct an
 antidegradation review to situations
when a source sought to increase ...'
existing permit limitations on the rate of
mass loading, except as the increase is
de minimis or there would be no change
in ambient water quality, and thereby
will limit the number of actions subject
to a full antidegradation review. EPA
believes that this is an appropriate
balance between the need to protect .--"..
water quality for these, substances and
the burden, to both the regulated
community and the regulatory agencies,
of conducting an antidegradation
review. EPA welcomes comments on
this position and specifically requests
information on situations where this
provision for non-BCCs may fail to  ,
adequately protect and -maintain water
quality.             ,
  Finally, the definition contains a
provision that allows the Director to
make case^by-case determinations
regarding the significant lowering of
water quality based on best professional
judgement. This provision is intended
to give the Director flexibility to
^designate actions that might have fallen
outside of the other provisions of the
definition, yet are considered by the
Director to be important enough to      ,
warrant a full antidegradation review.
   EPA emphasizes that the definition of
significant lowering of water quality is
intended to cover actions thatlower
water quality. It is not EPA's intent to
cover, under antidegradation, increased
discharges that do not contribute   ....
pollutants to the water body.
Furthermore, for BCCs the increased
rate of loading must be associated with
an action by the regulated entity. As
discussed above, EPA intends that the
term "action" be associated with
activities that contribute pollutants to
the water.           . .    *        ',  •
   For example, the antidegradation
guidance is intended to cover the
situation in which an industry that
discharges BCCs to the Great Lakes
System increases its rate of production,
and with the production, the rate at
which these pollutants are added into
the water via its waste stream. In
contrast, another situation may have an
industry that draws cooling water from
a water body in the Great Lakes System,
and discharges that water back into the
same water body without adding or J
removing any BCGs^ If the industry
wanted to increase the amount of
cooling water it pumped through the '
facility, the increased rate of BCC
loading in the effluent due solely to
background, pollutants from the water
body would not trigger an
 antidegradation demonstration.
   The determination of whether a
 discharge results in the significant
 lowering of water quality differs from
  decisions regarding whether a pollutant
  must be limited to protect water quality
  criteria and at what level :the limitation
  is established. The latter decisions are
  addressed by the implementation .
  procedures proposed in the proposed
  Guidance. The reader is referred to the
.  preamble discussion of procedure 5,    .
  "Reasonable Potential to Exceed
  Numeric WQSs" (see section Vin.E of
  appendix F to part 132) for additional
  information.
    EPA believes that the rule is
  sufficiently clear in these areas, but   '
  would welcome comment on whether
  the rule requires clarification.
  Commenters are encouraged to provide
  suggested changes to the rule that would
  accomplish the clarification.
    EPA requests comment on the
•  proposed approach to defining         :
  significant lowering of water quality and
  is particularly interested in comments
  on the requirement that an increase in
  the rate of mass loading of BCCs be tied
  to an action for it to be considered a     ;
'" significant lowering of water quality. In
  particular, does the definition place an
  undue burden on the regulatory agency •
  to. identify a specific causative action or
  actions, or, alternatively, on the
  regulated entity to prove.that no action
•  occurred? Also, where data exist? and
  are considered by the regulatory agency.
  adequate to demonstrate a long-term
 . gradual increase in the rate of mass -
  loading of a pollutant, should such an
  increase be considered a significant:
  lowering of water quality even when no
  specific causative  action or actions can
  be identified? Such situations could:
  result from aging waste treatment
  processes, which could be considered
  an "action", by the Director. EPA
  welcomes comment-on whether the
  proposed Guidance should be clarified
  to more explicitly address this and other
  similar situations.
    EPA also requests comment on
  whether the definition of significant
  lowering of water  quality should
  distinguish between BCGs and other,
-  pollutants. In particular, EPA is
  interested in whether BGCs would be
  adequately controlled if the same
  definition of significant lowering of
  water quality as is applied to other
  pollutants were to be used for BCCs.
  Such  an approach would have the effect
.  of tying the definition of significant
  lowering of water quality for all
  pollutants to increases in permit limits.
 ' It would provide opportunity for a de
  minimis demonstration, for increases in
  limitations on BCCs. It would also   -
  provide opportunity for an entity to
  attempt to demonstrate that the ambient
  concentration of the BCC would not
  increase. Other possible approaches

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Federal Register  /  VoL 58, No. 72  / Friday, April 16,  1993 / Proposed Rules
  might restrict application of the de
  minimis test or me demonstration of no
  ambient change, or both, to non-BCCs,
  while still tying the definition of
  significant lowering of water quality for
  any pollutant to permit limit increases.
  EPA Invites comment on these
  approaches and suggestions for others
  mat should be considered. EPA also
  welcomes suggestions regarding any
  changes or specific requirements that
  should be made or added to the de
  minimis test and the demonstration of
  no ambient change to address BCCs if
  th« definition of significant lowering of
  water quality were to be changed as
  discussed above.
  3. Covers All Pollutant Sources CPoint
  and Nonpolnt)
    As has already been discussed briefly,
  tho antidegradation guidance covers any
  regulated activity, the result of which
  might be tfaa lowering of water quality
  in the Great Lakes System. Such
  regulated activities are not limited to
  programs administered under the Clean
  Water Act, such as the NPDES and
*  section 404 permitting programs. While
  this proposed Guidance does not create
  any new regulatory authorities that can
  ba used by Federal, State, Tribal, or
.. local regulatory authorities in
*  expanding control of pollutant sources,
*  it provides them with & framework for
  making consistent decisions regarding
  tha protection and maintenance of water
  quality within existing regulatory
  authorities, where such authorities
  raquiro compliance with water quality
  standards, One set of mechanisms that
  EPA believes will facilitate the
  application of the proposed Guidance to
  all sources of pollutants to the Great
  Lflkos System is the Lakewide
  Management Plan (LaMP) that will be
  developed for each Lake. LaMPs are
  required by Annex 2 of the GLWQA to
  facilitate the restoration and protection
  of beneficial uses in tlie open waters of
  the Lakes. In addition, the CPA
  establishes a schedule for the
  completion of the Lake Michigan LaMP.
  Tha LaMPs will provide an integrated
  management tool to address all
  pollutant sources and coordinate all
  applicable regulatory authorities. While
  EPA feels that LaMPs will facilitate the
  application of this proposed Guidance,
  completed LaMPs are not prerequisites
  for its effective application, and
  regulatory authorities cannot delay the
  use of this proposed Guidance pending
  the development of a LaMP, EPA
  welcomes comment on alternative
  approaches to clarify within the
  proposed Guidance that it is applicable
  to both point and nonpoint sources of
  pollutants to the Great Lakes System,
                      and to ensure that it is utilized in
                      regulatory decision-making whenever
                      appropriate.

                      4. Exemptions
                        The antidegradation guidance defines
                      several actions or situations that will  .
                      generally not be considered subject to
                      the restrictions imposed by the
                      antidegradation procedures. These
                      exemptions are intended to cover
                      actions that might lower water quality
                      for a short duration, where the lowering
                      is reversible, especially where the action
                      will improve water  quality over the long
                      term. They also address emergency
                      situations, which require immediate
                      response to protect public health or
                      welfare. The Director has the ability on
                      a case-by-case basis to require that an
                      otherwise exempted action comply with
                      the antidegradation procedures.
                        There is a broad exemption provided
                      for actions the effect of which is limited
                      to a short-term, temporary lowering of
                      water quality. The Federal
                      antidegradation policy allows short-
                      term, temporary changes in water
                      quality in ONRWs, with no requirement
                      for an accompanying antidegradation
                      demonstration, a provision mat was
                      carried over into the Great Lakes
                      antidegradation guidance. EPA believes
                      that it is reasonable, since short-term,
                      temporary lowering of water quality is
                      allowable in the category of waters
                      given the very highest degree of
                      protection, the ONRWs, that similar
                      allowance should be made for high
                      quality waters.
                        The proposed Guidance places
                      bounds on the timeframe that will be
                      considered acceptable for an event to be
                      considered a short-term, temporary
                      lowering of water quality. For the effect
                      of an action to he considered a short-
                      term, temporary lowering of water
                      quality, the effect must be limited to
                      weeks or months in duration. This
                      definition is the same as has been
                      considered by EPA when drafting other
                      guidance on water quality standards. It
                      provides considerable flexibility to the
                      Director to account  for the specific
                      characteristics of the pollutant involved,
                      the receiving water, rate of mass
                      loading, and so on, when deciding on •
                      whether the lowering may be short-term
                      and temporary. While not explicitly
                      excluded by the timeframe specified,
                      actions that lower water quality for a
                      year or more should only rarely be
                      considered short-term and temporary.
                        Exemptions are also provided for
                      certain  emergency situations, which
                      may result in a lowering of water
                      quality. The first such exemption
                      involves non-prohibited bypasses of
                      wastewater treatment systems. Bypasses
are defined and generally prohibited in
the Federal NPDES regulations at 40
CFR 122.41(m). The regulations make
exception to the. general prohibition for
instances hi which a bypass is
unavoidable to prevent loss of life,
personal injury, or severe property
damage, and there is no feasible
alternative to the bypass. Similarly, the
guidance provides an exception for
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) response actions and
those taken under similar Federal or
State authorities. CERCLA response
actions are taken to alleviate
emergencies resulting from/releases into
the environment of hazardous
substances, and pollutants or
contaminants which may present an
imminent and substantial danger to
public health; or welfare. EPA believes
that it'would generally be infeasible and
inappropriate to hold these emergency
situations to the restrictions and
procedural requirements of the
antidegradation guidance.
  The exemption from the
antidegradation procedures does not
exempt such actions from other
requirements with which they are
expected to comply. For instance,
CERCLA response actions are required
to comply with all applicable, or
relevant and appropriate requirements,
a term that is defined in the Federal
regulations and includes all State water
quality standards applicable to the
water body. Similarly, the NPDES
regulations prohibit bypasses in all but,
a very limited number of situations. The
exemption to the antidegradation
procedures does not alter the bypass
prohibition in the NPDES regulations,
but only provides relief from the
antidegradation requirements for those
bypasses not otherwise prohibited,
  EPA welcomes comments on the
exemptions identified in the proposed
Guidance. In particular, EPA is
interested in comments on the
exemption for short-term, temporary
lowering of water quality regarding both
the appropriateness of such an
exemption and the timeframes
identified.
  EPA also considered a broader
exemption for remedial actions taken
pursuant to CERCLA, or other similar
Federal or State authorities.. Remedial
actions differ from the response actions
discussed above in that they are
generally long term, non emergency
clean up activities associated with
historical contamination. Remedial
actions may improve water quality over
the long term but result in a temporary
lowering of water quality in the same
surface water body over an extended

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                                                                    20897
 period (i.e., longer than would satisfy
 the requirements for an exemption for
 short-term, temporary lowering of water
 quality). In many instances the
 contamination remediated by such  -
 actions will be adversely affecting a •
 surface water body, whether through
 contaminated runoff, ^contaminated
•groundwater percolating into the.surface
 water, in-place sediment contamination,
 or other similar mechanism. Remedial
 measures are generally designed, to
 control or eliminate the source of the
 pollutants and clean up the
 contamination. However, the immediate
 result of a remedial action, in particular.
 while it is being conducted, may be a
 lowering of water quality, for instance
 through the discharge or release of the
 contaminants from a ground water  ''
 treatment system into a surface water,
 often the same water'body that is
 already adversely affected by the
 contamination. This temporary lowering
 often extends beyond weelcs or months,
 but may result in long term     •. •-  '
 improvement in; surface water quality.
 Even where the same water body is
 temporarily degraded, such discharges
 must ensure protection of water quality
. standards as they occur, and the net
 effect over the longer term may be
 beneficial to water quality. Other special
' provisions discussed later in the
 proposed Guidance ^regarding the
 antidegradation demonstration and
' decision might affect the need for.any
 exemption for remedial actions, EPA
. requests comment on whether those •
 special provisions are adequate or   .
 whether the exemptions should be
 expanded to  cover CERCLA remedial
 actions.
 5. Discharges of Fill Material in
 Wetlands         -
 *   Section 404 of the CWA regulates the
 discharge of dredged or fill material into
 waters of the United States, including
 wetlands. Fill material means   '  ,
 discharged material which converts
. waters of the United States to dryland
 or which changes the bottom elevation
 of waters of the United States. Permits
 for such discharges must be based on
 the section 404(b)(l) guidelines, 40 CFR
" part 230, which require, among other  .
 things, that discharges not violate
 applicable water quality standards and
 not cause significant degradation to the
 environment.
    Both the Federal and proposed Great
 Lakes antidegradation policies require
 that existing uses be protected.
 Discharges of fill material in wetlands
 can be seen as automatically eliminating
 the use within the filled area. Thus, a
 literal interpretation of either
 antidegradation policy could flatly
 prohibit the issuance of any section 404
 permit for a wetland fill. Since it is
 logical to assume that Congress
 contemplated that at least some such
 permits be issued under the framework
 of the GWA, EPA has interpreted the
 existing use provision in the Federal.
 policy to be satisfied with regard to fills'
 in wetlands if the discharge does not
 result in "significant degradation" of the
 aquatic ecosystem as defined under 40
 CFR 230.10(3 of the section 404(b)(l)
 guidelines. For high quality waters, the
 same "no significant degradation" level
. serves as the floor below which no
 significant lowering of water quality can
 be allowed. EPA requests comment on
 whether the Great Lakes antidegradation
 policy should be interpreted in a similar
 .way. :    .-'...'"". "'..'-'
 P. Existing Effluent Quality

 1, Background            -•• •;  _      ,
  Controlling contamination of the
 Great Lakes System by BCCs is a very
 high priority of the Great Lakes States
 and EPA. EPA is proposing that any
 increase, above a defined baseline, in   ;
 the rate of mass loading of a BGC from
 either a point or a nonpoint source be
 considered significant lowering of water
 quality. The antidegradation procedures
 established by this proposed Guidance
 require special controls on potential
 sources of BCCs  to protect against any -
 unreviewed significant lowering of
 water quality that would result from
 such an increase in the rate of mass
- loading of a BCC. In particular, they
 require that the future rate of mass
 loading of BCCs  be restricted to levels
 that are representative of typical
 operation at the time that the Director is
 considering issuance, reissuance or
 modification of the applicable control
 document, unless an increase is justified
 through an antidegradation
 demonstration.

 2. Options for EEQ Controls   ,  ,
   The proposed Guidance is not specific
 on the control document requirements
 that the Director uses to restrict the rate
 of loading of BCCs, and provides the
 Director considerable latitude to
 establish conditions that fit the        :
 situation. The following discussion
 describes the alternatives that the
 regulatory agency can employ to.
 implement the requirements of section
 H.D.'l of appendix E of the proposed
 Guidance, regarding the control of the
 loading of BGCs, which will be termed
 the existing effluent quality (EEQ)
 provision.
   To consistently implement the EEQ
 provision of the proposed  Guidance,
 each State or Tribe should develop
 procedures that will be followed when .:
 making control docunlent decisions in
 all applicable programs. The procedures
 should specify the types of conditions
 that will be used to establish a baseline
 discharge mass loading rate for each
 BCC as control documents are reissued
 or BCC-related conditions are modified.
 In particular, the procedures should  :
 serve as a crosswalk between the Great
 Lakes Antidegradatipn Guidanceand .'"•••
 the various regulatory programs, by
 identifying which .decisions within each
• program are affected by the proposed
 Guidance, the control documents   •'.-.-
 utilized and the types of conditions that
 can be included within them. The
 control document requirements       ;
 specified in such State or Tribal
 procedures must be enforceable to
 accomplish this objective. An increase
 in the rate of mass loading may be    ;
 requested by the regulated entity in the
 future and may be allowed if the
 increase is consistent with the   " •  ,
 antidegradation demonstration and
 decision requirements of the proposed
 Guidance.
   To. determine EEQ, a pbllutant-by-
 pollutant evaluation of the release or
 discharge ("effluent quality") must be
 conducted during preparation of a draft
 control document for reissuance. All
 data collected over the previous control
 document term (e.g., past five years) that
 are representative of typical operation
 should be utilized. Discharge
 monitoring reports, application   ,
 information, compliance sampling
 inspection results, and information
 requests may all provide useful
 information for this analysis. Data that
 reflect upsets or bypasses (such as those
 situations denned in 40 CFR 122.41 for
 the NPDES program) should not be
 utilized.
   In developing this recommendation
. EPA intends to define a data set that
 would allow a permit writer to establish
 what the typical loading rate from a
 discharger is (i.e., how is the discharger
 affecting-water quality?), while trying at
 the same time to ensure the database is
 large enough for meaningful analysis.
 This recommendation parallels the
 NPDES regulations and guidance
 regarding development of production-
 based limits (see 40 CFR 122.45(b)(2)(i);
• .49 FR 38031, September 26,1984; and
 Training Manual for NPDES Permit
 Writers, U.S. EPA, Office of Water,
 January 1993, pp. 4-4 through 4-6). By
 specifying the term of the preceding
 control document we are trying to
 ensure there are enough data points to
 make the evaluation meaningful,
 without making the period over which .
 data were collected so long that the data
 would not be representative of normal

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 or typical operations. Where conditions
 affecting the discharge are not constant
 over the term, the regulatory authority
 has tha flexibility to adjust the time
 period over which data are considered
 representative of the effluent quality at
 the time of reissuance. For example, an
 expansion that occurred in the last 1V2
 years of a permit term would likely
 result in only the last \V* years' of data
 boing evaluated as representative of the
 discharge at the time of reissuance. On
 the other hand, if operations were
 curtailed in the most recent months as
 a result of a business slow-down, the
 discharge data during the earlier years
 of tho term maybe more representative
 of typical operations.
   Tho distribution of multiple data
 points should be characterized using
 appropriate statistical techniques.
 Appendix E of EPA's March 1991 -
 "Technical Support Document for Water
 Quality-based Toxics Control" (TSD)
 provides a  good background discussion
 of statistical applications to describe
 effluent quality, and to develop effluent
 limitations that are appropriate for the
 discharge, (This document is available
 in tho administrative record for this
 rulemaking. Copies are also available
 upon written request to the person
 listed in section Xm of this preamble.)
 Tho TSD provides, in appendix E, a
 discussion  of the derivation of effluent
 limitations based on actual discharge
 data (i.e., derivation of EEQ). It also
 provides procedures (see Tables 2, 3 and
 4) which may, depending on the data
 set, be used to derive these numbers. As
 explained in appendix E of the TSD, it
 will generally be appropriate to use
 procedures which assume that the daily
 effluent data are approximately log-
 normally distributed. This assumption
 is consistent with the general
 experience  of the EPA in evaluating
 effluent discharge data (see section 5.2.2
 of tha TSD), but may be overridden by
 tho permit writer if the effluent data
 deviato seriously from this distribution.
 Where this  is the case, alternative
 methods, such as non-parametric
 statistical techniques, may be useful to
 determine EEQ, Similarly, the
 procedures in appendix E of the TSD
assume that the data are independent
 (i.e., not correlated with one another).
 Should this assumption not hold,
 oltornativa statistical techniques or
 other corrections may be appropriate.
Appendix E of the TSD provides some
suggestions on how this may be
accomplished.
  Analytic results that are below the
quantification level should be factored
into the development of EEQ as non-
zero results using the procedures set
forth in procedure 3B of the proposed
                      implementation procedures (appendix F
                      to part 132) or other appropriate
                      statistical procedures (e.g., delta
                      lognormal procedures from appendix E
                      of the TSD).
                        Various options for incorporation of '
                      EEQ as a control requirement in a
                      control document were considered
                      during development of the proposed
                      Guidance. The EEQ control
                      requirements, in conjunction with any
                      more stringent limitations otherwise
                      required by the applicable regulations,
                      such as technology-based and water
                      quality-based effluent limitations in the
                      NPDES program, must provide complete
                      coverage of all BCCs. In addition, the
                      proposed Guidance requires that control
                      documents contain a condition
                      prohibiting the discharger from
                      undertaking any deliberate action which
                      would result in the increase in the mass
                      loading rate of a BCC above EEQ,
                      without having first successfully
                      completed an antidegradation
                      demonstration and received State
                      authorization for the increase. The
                      following discussion covers the two
                      principal options, which may be used
                      either independently or
                      complementarity, and a supplement
                      which may be used in combination with
                      either or both options. EPA invites
                      comments on these options and
                      welcomes suggestions regarding other
                      alternatives that should be considered
                      for EEQ controls.
                        a. Option 1: EEQ as Numeric Mass
                      Loading Rate Limitations. In this option,
                      a State will develop numeric effluent
                      limitations that will serve to restrict the
                      loadings of BCCs to their existing levels.
                      In an NPDES permit, limits will
                      generally be expressed as daily maxima
                      or weekly averages and monthly
                      averages. Other control document
                      situations may call for alternative
                      averaging periods.
                       Generally, calculations to determine
                      daily maximum and weekly or monthly
                      average numeric limitations to ensure
                      that effluent mass loadings of a BCC do
                      not increase above EEQ should follow
                      this approach: Using appropriate
                      statistical techniques, determine the
                      daily maximum EEQ as the upper 99th
                      percentile of the distribution of the
                      daily data, and the weekly or monthly
                      average EEQ as the upper 95th
                     percentile of the distribution of the
                      average of the daily data.
                       The resulting numbers, if more
                     restrictive than otherwise applicable
                     technology-based or water quality-based
                     effluent limits, should be incorporated
                     into the control document as daily
                     maximum or weekly average, and
                     monthly average mass loading rate
                     limitations. Any exceedance of such
 limits would be a violation of the permit
 and subject to enforcement. Entities
 subject to such limitations that
 anticipate that production or process
 changes may result in exceedance of the
 EEQ limits  will need to request an
 increase in the EEQ limits and justify
 such an increase through an
 antidegradation demonstration. When
 such a request is made prior to control
 document issuance, appropriate
 alternate effluent limitations that are
 based on the demonstration would be
 incorporated into the issued control
 document. Where such information
 becomes available during the term of the
 control document, the entity may
 request modification of the control
 document, subject to any applicable
 regulatory constraints on such
 modification, and submit supporting
 information including an
 antidegradation demonstration.
   b. Option 2: Narrative Prohibition
 Coupled with EEQ Notification
 Requirement. Under this option, the
 draft control document would contain
' two separate conditions that, together,
 Would serve to monitor the level of
 discharge of BCCs and restrict the
 permittee from undertaking actions,
 such as plant expansions, that would
 result in an increase in the mass loading
 rate of any BCC.
   The first of the two conditions would
 be the narrative condition (limitation)
 described earlier. NPDES permit
 language that would accomplish this
    " it read as follows:
 m _
   "The permittee is prohibited from
 undertaking any deliberate action,
 where such action by the permittee
 would re'sult in the increase in the mass
 loading rate of a Bioaccumulative
 Chemical, of Concern [denned and listed
 elsewhere in the permit] above that
 established with the issuance of this
 permit. Should the permittee propose to
 take such action, the permittee must
 seek modification of this permit, and
 provide information including an
 approvable antidegradation
 demonstration to support the request."
  The second of the two conditions
 would be a monitoring requirement
 with notification triggers. This
 condition would list all of the BCCs to
 which it applies, the required
, monitoring frequency, and the EEQ
 level (determined using the procedure
 for the daily maximum limitation under
 Option 1, i.e., the upper 99th percentile
 of the distribution of the daily data) for
 each listed pollutant. The second
 condition would also contain
 requirements that the permittee notify
 the Director of any exceedance of an    <
 EEQ level (notification trigger) and that

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                                                                     20899
 such notification specify the suspected
 cause of the exceedance,   ~_
   If ongoing monitoring indicates that a
 substance has been discharged in excess
 of EEQ, it is the permittee's
 responsibility to notify the Director of
 the exceedance and the suspected cause.
 Failure to provide notification as
 required is a violation of the permij: and
 subject to appropriate enforcement     --•
 response. Receipt of such notification by
 , the Director may prompt a review to
 determine if there has been a change at
 the permitted facility in violation of the
 narrative condition. It may also prompt
 reassessment of the EEQlevel to
 determine if there is a need to modify
 the EEQ notification triggerto better
 reflect the actual rate of
 ' Should the review of any information
 available to the Director, including that
 submitted pursuant to the EEQ  •_•
 notification condition, demonstrate that
. the entity has taken an action prohibited
 under the narrative, the entity would be
 in violation of the narrative condition.
 Such a violation would be handled in
•the same way as a violation of a numeric
 limitation.
   c. Supplement to Options 1 or 2:
 Establishment of Discharge Prohibitions
 to Maintain EEQ. In addition to the
 requirements of Options 1 or 2, States
 may wish to specify in the control
 document that the discharge of listed
 BCCs not specifically limited or
 otherwise restricted in the control,
 document is prohibited, or,
 alternatively, that such discharge is not
 authorized by the control document.
 This may be a particularly attractive
 alternative to a long list of pollutant
 limitations for BCCs that are known or
 believed to be absent in the discharge.
   To adequately implement the
 requirements'of section n.D of appendix
 E of the proposed Guidance,
 requirements under this, supplemental
 action would have to be enforceable and
"tracked. The control document would
 include language that clearly establishes
 the prohibition or non-authorization
. and the list of pollutants to which it
 applies. It would require periodic
 monitoring to be used to assess
 compliance. Under this'supplemental
 action, the control document would
 indicate that the discharge of a specific
 list of pollutants is not authorized, and
 specify the effect of detecting ail
 unauthorized pollutant in the effluent. •
 The effect may range from a violation of
 a limitation as in Option 1 to the
 triggering requirement as in Option 2, ;
 but it would be clearly specified in the :
 control document.              •
 3. Issues
   During the Great Lakes Water Quality
 initiative Technical Work Group
 discussions regarding the use of EEQ
 controls on BCCs to protect and  *
 maintain water quality in high quality
 waters, numerous issues were
 deliberated. In addition to comments on
 the general approach to using EEQ "'
 described ahove, EPA solicits comments
 on the issues and decisions discussed •
 below.                             -.
   a. Punishment of Good Performers.
 One criticism frequently made of the
 use of EEQ limitations and control
 requirements is that they are a
 disincentive to good performance by a
 regulated entity. In the context of an
 NPDE$-permitted discharger, the
 rationale for this criticism is as follows.
 A "good performer" will seek to operate
 its treatment processes as efficiently as
 possible, or even design excess ;
 treatment capacity, in order to ensure
 that the technology-based and water
 quality-based effluent limitations in  its
 permit are never exceeded."As a result
 of this good performance, the effluent
 quality of such a discharger is likely to
 be considerably below the limitations in
 its permit. The EEQ evaluation would
 result in the-discharger receiving tighter,
 EEQ-based limitations or control
 requirements, solely because of the
 discharger's good past performance.  ~
 Furthermore, to the extent that the EEQ
 conditions are more stringent numeric
 limitations on the mass loading rate  of
 the BCCs, that discharger would be put
 at higher risk of violating the
 limitations, even if it continued to
 operate as  efficiently as it had in  the
 past. Making the situation even more   '_
 disagreeable to those raising this  issue is
 the perception that "bad performers"
 are rewarded by the process, because
 their technology-based or water quality-
 based limits would likely not be
 tightened as a result of the EEQ analysis,
   EPA and the Great Lakes States share
 the concern that the EEQ provision not
 be a disincentive to good performance,
 and the proposed Guidance is written to
 allow regulatory authorities the
 flexibility to utilize alternatives, such as
 identified above, that should help to
 alleviate the concern. In particular,
 Option 2 provides for permit conditions
 that require notification of an. .".,
. exceedance of an EEQ level/and  such
.an exceedance only results in a permit
 violation when it is either not reported
 or is the result of an action by the
 permittee, which nas not been approved
 by the regulatory agency under the Great
 Lakes antidegradation decision-making
 procedures. This approach still captures
 the EEQ concept,but it addresses in part
 the perceived disincentive associated
 with EEQ limitations. In particular, the
r concern that" an EEQ limit puts a
•permittee at a higher statistically'
 defined risk of a permit violation is
 avoided by this approach.
   In addition, EPA believes that these
 concerns downplay the real risks of
 being what would be considered a "bad
 performer." While such a discharger
 might not see tightened restrictions or
 limitations on BCCs, it will still see EEQ
 restrictions or limitations, in addition to
 the applicable technology-based and
 water quality-based limitations.  "  •''
 Minimally adequate or poorly operated
 and maintained treatment capacity or
 other such characteristics that would
 tend to characterize a "bad performer"   .
 will very likely result in a significant
 probability of violation of these limits.
 As EPA or the States consider the
 appropriate enforcement response to
 effluent limitation violations, they will
 take into account the factors that
 separate the "good performers" from the
 "bad performers^" EPA believes "that the
 increased likelihood of effluent limit  ,
 violations and enforcement actions that
 result from being a"bad performer" will
 continue to be a strong incentive for
 good performance, even after EEQ
 restrictions are implemented.
   EPA and the Great Lakes Steering
. Committee believe that it is appropriate
 to restrict the rate of mass loading of
 BCCs to EEQ to protect and maintain
 water quality in the Great Lakes System,
 EPA is not, through the use of EEQ to
 define effluent requirements or
 limitations, trying to force dischargers to
 install and operate additional waste
 treatment capacity, but only to operate
 and maintain their existing capacity so
 that the rate of mass loading of BCCs
 does not increase. EPA welcomes
 comments on other alternative
 approaches that should be considered
 that accomplish this objective, but
 might place less of a burden on the
 regulated community, in particular the
 "good performers." Also, as discussed
 above, under C.2. "Significant Lowering
 of Water Quality", EPA is inviting
 comment on whether the definition of
 significant-lowering of water quality
 should, be changed to focus on permit
 limit increases for all pollutants and'
 thereby eliminate the focus on EEQ for
 BCCs. EPA is.interested in whether  ;
 commenters.belieye that such a change
. would remedy the perceived
 disincentive for good performance.'
   b. Statistical Procedures. The analysis
 of effluent data to develop EEQ
 estimates requires the use of statistical
 procedures. During development of the
 proposed Guidance, concerns were
 raised by many parties regarding the •'••'''

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 procedures that should be applied and
 the implications. In particular, it was
 noted that no single formula could
 appropriately be used on all data sets
 and that all procedures would define
 sorno upper bound EEQ estimate, which
 would almost guarantee occasional
 oxcoedances of the estimate and the
 potential for violations of the
 corresponding effluent limitation.
  EPA agrees that no single statistical
 formula will be appropriate for all
 situations. Thus, the proposed Guidance
 does not prescribe any specific formula
 or procedure to determine EEQ. Rather,
 the decision is left to be made by the
 regulatory authority on a case-by-case
 basis. Nonetheless, as described above
 and discussed more thoroughly in the
 EPA TSD, for effluent discharge data, it
 will often be appropriate to apply
 simple lognormal statistics to determine
 EEQ. In addition, the NPDES permit
 regulations specify the averaging
 periods that should generally define the
 permit effluent limits. Standard practice
 has bean to apply the upper 99th
 porcentile of the distribution of the
 daily effluent data as a maximum limit,
 and the upper 95th percentile of the
 distribution of the average of the daily
 effluent data as an average limit.
  EPA notes that the proposed
 Guidance  does not require that EEQ be
 expressed as numeric effluent
 limitations. However, EPA continues to
 strongly support the use of the
 probability expressed above in the
 characterization of EEQ. EPA has
 historically used these or similar
 probability levels in the context of
 effluent limitations guidelines
 development. Probability levels have
 also bean used by EPA and the States in
 tho development of individual permit
effluent limits. It is not possible to
 derive numeric EEQ limits that
guarantee  100 percent compliance; with
any EEQ limit will come the statistical
 probability that the limit will be
 exceeded. The goal in establishing
probability levels is to allow the
 regulatory agency to distinguish
between adequately operated
 wastawater treatment plants with
 normal variability from poorly operated
 treatment plants. EPA invites comments
 and suggestions on other approaches
that might be useful in place of or in
addition to the statistical procedures
 discussed  in establishing EEQ.
  c. Data Availability and
Representativeness. Many of the BCCs
will have very little discharge
monitoring data available from which to
 derive EEQ for any given source. This
arises for a variety of reasons, ranging
 from simple lack of historical
monitoring requirements because the
                      discharger was not considered a
                      potential source of the BCC, to lack of
                      monitoring techniques sensitive enough
                      to measure environmentally significant
                      discharges. The focus of the Great Lakes
                      autidegradation guidance on the BCCs
                      raises the question of whether the
                      periodic monitoring of all dischargers
                      for the presence of BCCs should be
                      required. The frequency of such
                      monitoring would be determined by the
                      regulatory agency based on the potential
                      of the discharge to be a source of the
                      BCC. EPA invites comments on this
                      question and suggestions on the
                      appropriate monitoring requirements for
                      BCCs. EPA has estimated the potential
                    ! cost to industrial and municipal
                      facilities to monitor for the presence of
                      BCCs in their discharges. Assuming that
                      all industrial and municipal facilities
                      monitor twice per year for BCCs having
                      Tier I criteria, the total annual
                      monitoring cost for Tier I BCCs are an
                      estimated $10 million.
                        Decisions on control document EEQ
                      requirements may have to be made
                      based on very limited data,  or on data
                      which the regulatory agency considers
                      questionable. Considerable flexibility is
                      available to the regulatory agency to
                      deal with such issues. If the regulatory
                      agency is concerned that a BCC is in a
                      discharge, reasonable additional data
                      may be requested of the regulated entity
                      prior to development of the "control
                      document under the information
                      gathering authorities common to most
                      environmental statutes. The EEQ
                      conditions in the control document may
                      also be tailored to address the quantity
                      and quality of the data initially available
                      to determine EEQ, through the use of
                      restrictions other than numeric effluent
                      limitations. EPA believes that the
                      flexibility available to the regulatory
                      agency to implement the EEQ
                      requirements allows for sufficient
                      options to address the data availability
                      problems which might.arise, while still
                      ensuring that water quality is
                      maintained and protected.
                        d. Application to Municipalities.
                      During the Technical Work Group
                      deliberations on the use of EEQ
                      requirements, the issue of applicability
                      of EEQ conditions to discharges to
                      publicly owned treatment works
                      (POTWs) was repeatedly raised. In
                      particular, there was concern expressed
                      that such requirements would restrict
                      growth that had been previously
                      contemplated in the design and public
                      funding decisions involving the POTW,
                      It was argued that POTWs have
                      historically been designed, approved,
                      publicly funded, and constructed with a
                      built in growth assumption. The
                      regulations at 40 CFR 122.45(b)(l)
 recognize this and call for the use of the
 design flow to develop POTW effluent
 limitations. This growth factor and the
 incremental increases in pollutant
 loadings accompanying growth were
 part of the initial public decision to
 construct a POTW, the argument went;
 therefore, it is not necessary to revisit
 these issues in an antidegradation
 analysis.
*  EPA notes that much of this
 discussion occurred when the Technical
 Work Group was considering requiring
 EEQ limits for all pollutants, which is
 not a requirement of the proposed
" Guidance. It was generally agreed that
 any relaxation in existing effluent limits
 that were not based on EEQ should ,
 necessitate antidegradation analysis.
 Similarly, any proposed expansion of
 POTW facilities that may result in an
 increased loading of pollutants to the
 receiving water over its design life, or
 the operation of a POTW beyond its
 design capacity was anticipated to be
 subject to antidegradation analysis. It
 was also generally accepted by the Work
 Group that the discharge of BCCs from
 POTWs would require EEQ analysis
 upon permit reissuance. These
 requirements are reflected in the
 proposed Guidance.
   Consequently, EPA believes that the
 'proposed Guidance addresses many of
 the unique concerns of POTWs
 associated with anticipated growth, by
 only requiring EEQ conditions for BCCs
 and keying the significant lowering of
 water quality for all other pollutants to
 increases in permit limits. EPA invites
 comment on whether the proposed
 Guidance adequately addresses the
 issue of anticipated growth by POTWs,
 and suggestions on how the proposed
 Guidance might be improved in this
 regard.
   e. Restrictions on Actions Versus
 Limitations on Pollutants. Use of the
 type of conditions specified above in
 Option 2 also was the subject of
 considerable debate during the
 development of the proposed Guidance.
 Option 2 would require the use of a
 narrative prohibition on the
 implementation of any action by the
 regulated entity which would result in
 an increase in the rate of mass loading
 of a BCC above EEQ. This narrative
 prohibition, when coupled with
 monitoring and EEQ-based reporting
 trigger levels, would be expected to
 prevent the significant lowering of wate
 quality, just as would numeric
 limitations on the BCCs. The primary
 debate centered on the use of a
 condition which prohibits an action
 rather than directly setting effluent
 limitations. A parallel concern involved

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                 Federal Register / Vol.  58, No, 72  /Friday, April 16,  1993  /Proposed Rules
                                                                    20901
 the use of narrative restrictions in lieu
 of numerical limits, in general. :  ;
   EPA recognizes that, particularly in
 the NPDES permit program, it has
 traditionally focussed almost
 exclusively ori the use of effluent
 limitations to control discharges and
 has, with limited restrictions, allowed  .
 the regulated entity corisidferable .
 latitude in determining how to comply
 with the limitations; Generally, permits
 are not constructed to specify the
 treatment .technologies and controls that
 must be used by a regulated entity. At
 first glance, the narrative prohibition on
 actions by a regulated entity .that is
 included in Option 2 might seem to run
 contrary to this standard practice.  ,  . • •
   One reason for the traditional focus
 on numeric limitations is that,
 especially as involves water quality-
 based permitting, it is the quality*of the
 effluent that is important, not
 necessarily the treatment or controls
 used to achieve that quality. In addition,
 one of the best measures of treatment
 plant performance is the quality of the
 effluent that the plant produces. In this •
 sense, numeric effluent limits are often
 the most sensible type of permit:
 requirement to use1 to ensure proper     .'
 treatment system performance.     '
   However, even within the context of
 the NPDES program; conditions are
 included in permits that specify actions
 that must be undertaken by the .
 regulated entity in order to be in
, compliance with the permit. For
 instance, permits often include
 compliance schedules that specify
 actions to be accomplished by the
 permittee. The NPDES regulations also
 provide that permits may contain
 requirements for the implementation of
 best management practices. Finally,
 permits also currently contain
 prohibitions on certain actions, such as "
 bypasses. Under the Clean Water Act,
 EPA is.provided with broad authorities
 to establish permit conditions necessary .
 to carry out the provisions of the Clean  :
 Water Act; such conditions;are not      ;
 limited to numeric effluent limitations.
. EPA believes that the Option 2  ,
 prohibition on actions which would -
 result in an increase in .the rate of mass .
 loading of a BCC is consistent with
 current.permitting practice, and well
 within existing regulatory authorities. In
 addition, EPA is confident that well-.,
 constructed, clear narrative conditions,
 can be tracked and enforced as         ;
 effectively as numeric limitations.  .
   f. Statutory Authority for EEQ.
 Questions were raised during  •
 development of the proposed Guidance
 regarding the statutory, authority upon
 which EPA was relying in requiring
EEQ to be used in the development of
control document conditions.;
  Antidegradation policies are clearly
authorized by the Clean Water Act (see
sections 118, as amended by the.CPA,
and 303(d». Under the Federal
antidegradation policy, States and /
Tribes are provided with considerable
latitude in defining the requirements
necessary to protect and maintain water
quality in HQWs. EPA is proposing, for
reasons discussed iri,section C.2 of the  •
preamble, that to protect and maintain
high quality water m the Great Lakes  •
System, it is necessary to restrict the  "•'"
significant lowering of water quality.
Significant lowering of water quality in
HQWs can only occur if ,an    '  ,
antidegradation demonstration
adequately justifies the significant .
lowering of water quality and the
Director approves such lowering. For
the BCCs, in the Great Lakes context,.
EPA is proposing that any action that
results in .an increase iri the rate of mass
loading of a BCC to a HQW significantly
lowers water quality. To prevent
significant lowering of water quality
from occurring as a result of such
actions, the proposed Guidance requires
thatEEQbe maintained (e.g., that  there
be rio increase in the rate of mass
loading) until an antidegradation
demonstration is" performed and an
increase approved by the regulatory
authority. '    ,      ; ". <-       '
  In addition, as regards point sources!
when the Great Lakes States and Tribes
adopt antidegradation policies
consistent with this proposed Guidance,
as is required by the CPA, the policies
will become the State arid Tribal water
quality standards or other requirements
established pursuant to State law or
regulation that are referenced in section
301(b)(lXC). At that time, when the    /
discharge of BGCs is from a point source
subject to an NPDES permit, that permit
must contain EEQ limitations or
conditions, pursuant to section
301(b)(l)(C), to meet the requirements of
the antidegradation policy.
  g. Ability to Accommodate a Return to
Increased Production Levels Under   ,.
Antidegradation. The degree of
flexibility that a regulatory authority-has
under the proposed antidegradation
guidance to allow a return to a previous
high production level (for example;
through the resumption of a second
shift) depends on when the previous
high production level'occurred.
Consider the following scenarios:
 . Scenario 1: Permit issued with facility at
production rate X; production is cut back
after issuance to X minus 100;-facility wants
to return to X during permit term.  .  , .
   In this scenario) the return to the
 higher production rate would not be  ,
 subject to an antidegradation review. On
 issuance the. permitting agency would •.
 have established, for all pollutants,
 appropriate effluent limitations and, for
 BCC pollutants, loading rate baselines
 (i.e., EEQ) to reflect the production rate
 X; The effluent limits and EEQ baseline
 will not chang'e during the term of the
 permit, even if production is reduced*
 When production returns to X, the:
 effluent limits and EEQ baseline
 conditions would accommodate the
 increase, and the event would not be
 considered significant lowering of water
 quality.
   Scenario 2; Permit issued with facility at :
 production rate X; facility wants .to increase
 production to X plus 100,. a level attained
 previously^       -        '; •

   In this scenario, the return to the
 higher production rate may be subject to
 antidegradation, depending on the
 timing of the previous production
 patterns and whether or not they are
 reflected in the effluent limits and EEQ
 baseline conditions established at the
 time of permit reissuance. As discussed
 above, information from the preceding
 permit term should be used to
 determine the effluent quality. The
 permit writer has':the flexibility to use ;
 the  most representative information
 from the preceding permit term in
 making the determination. The permit
 writer could account for an recent
. downturn in production by setting the
 effluent limits and establishing'EEQ
 baseline conditions to reflect conditions
 prior to the downturn if information
 was available to suggest that the
 downturn was likely to be temporary. In
 contrast, if a production decrease was in
 evidence during the majority of the
 previous permit term and likely to
 continue.the"permit would likely
 establish  effluent limits and baseline
 EEQ conditions at the level
 representative of the downturni
   In summary, working within the
 underlying intent of the proposed
. antidegradation policy, there is some   ,
 flexibility to account for temporary,    >
 generally recent, downward trends in   .
 production and effluent loadings under .
 this scenario.
   EPA requests comihent on the        •
 operation of antidegradation as  •      ; '
 discussed above. In particular, EPA is :
 interested in comments about whether
 the proposed Guidance provides
 sufficient flexibility to accommodate   :
 economic recovery in the Great Lakes
 region, while still preserving the intent
 of the antidegradation policy to protect
 and maintain wafer quality in the high

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  20002
Federal Register /  Vol.  58,  No. 72  /  Friday,  April 16,  1993 / Proposed Rules
   fuality waters of the Great Lakes
   ystam,
   h, Relationship ofEEQ to
 Implementation Procedure 8. During
 development of the EEQ provisions in
 the proposed Guidance, concerns were
 expressed regarding EEQ limitations or
 restrictions that reflected nondetectable
 discharges. In particular, the
 relationship between the EEQ
 requirements of the Antidegradation
 Policy and the requirements of
 procedure 8 of appendix F to part 132
 was questioned, and concerns raised
 that the EEQ requirements would
 necessitate fish bio-uptake studies
 (procedure 8.F.1 of appendix F). EPA
 believes that the EEQ and procedure 8
 of appendix F provisions operate
 independently and that fish bio-uptake
 studies will not necessarily result from
 the application of EEQ requirements.
 Procedure 8 of appendix F requires that
 permits include certain provisions if the
 WQBEL for a pollutant is below the
 detection level For BCCs, one of these
§  revisions is a fish bio-uptake study to
  etormine if the discharge of a pollutant
 Is occurring at a rate or level that results
 in unacceptable accumulation in fish
 tissue. The requirements of procedure 8
 of appendix F, including fish bio-uptake
 studies, only apply when the regulatory
 agency has determined, using
 procedures 3 and 5 of appendix F, that
 a WQBEL for the BCC in question is
 necessary.
  Like the implementation procedures,
 the EEQ provisions of the
 Antidegradation Policy also direct that
 controls be placed on the discharge of
 BCCs. The regulatory agency may
 choose that the controls take the form of
 numeric effluent limitations, or may
 choose to use other mechanisms to
 maintain EEQ for the BCCs, such as
 were discussed under "Options for EEQ
 Controls". The basis for the EEQ
 restrictions, whatever their form, is to
 prevent the significant lowering of water
 quality. The EEQ restrictions are not
 based on implementation procedures 3
 or 5 of appendix F. They do not
 generally take the place of WQBELs
 developed pursuant to these procedures.
 Consequently, they would generally not
be subject to the fish bio-uptake study
requirements of procedure 8 of

always free to require fishbio-uptake
studies in conjunction with EEQ
requirements, but such studies are not
mandated by this proposed Guidance.
  EPA is aware ofonly one
circumstance in which EEQ permit
conditions would necessarily require
the use offish bio-uptake studies, and
this would result not from the
nntidcgradation requirements, but
                      because the regulatory agency would
                      have chosen to use an EEQ limit in a"
                      permit in place of an otherwise
                      necessary WQBEL. A regulatory agency
                    "  may choose to include numeric EEQ
                      effluent limitations for a BCC, which
                      would otherwise be required to be
                      limited by a WQBEL developed
                      pursuant to procedures 3 and 5 of
                      appendix F. If the EEQ limit was more
                      restrictive than the WQBEL and would
                      ensure compliance with the WQBEL,
                      then the agency may choose to use it in
                      the effluent limits table as a substitute
                      for the .WQBEL. Where such an
                      application of EEQ required a limitation
                      that was below the detection limit, the
                      regulatory agency would have to apply
                      procedure 8 of appendix F, including
                      the fish bio-uptake studies.
                       EPA believes that the Antidegradation
                      Policy and implementation procedures,
                      as written, lead to the above
                      conclusions. EPA would welcome
                      comments and suggestions on how to  -
                      clarify the proposed Guidance to
                      remove ambiguity. EPA would also
                      welcome comments on whether or not
                      the proposed Guidance should be
                      changed to require fish bio-uptake
                      studies in  conjunction with EEQ
                      requirements for nondetectable BCCs.

                     E. De Minimis Lowering of Water
                      Quality

                      1. Background
                       EPA and the Great Lakes States, in
                     prioritizing situations that would be
                     considered significant lowering of water
                     quality in HQWs, drew a distinction
                     between BCCs and other pollutants. As
                     discussed in detail above, significant
                     lowering of water quality for BCCs
                     focuses on EEQ. In contrast, for
                     pollutants  other than BCCs ("non-
                     BCCs") the definitioa of significant
                     lowering of water quality keys off of
                     increases in permit limits, and allows
                     exemptions for de minimis increases
                     and increases that result in no change in
                     ambient concentration outside of any
                     applicable  mixing zone.
                       The "de minimis test" is a series of
                     criteria that ensure that the lowering of
                     water quality does not result from a
                     BCC, and then assess the degree to
                    which water quality is lowered by  a
                    pollutant, in comparison to the .ability of
                    the waterbody to assimilate the
                    pollutant Use of the de minimis test to
                    exempt an action from an
                    antidegradation review is a
                    discretionary decision of the Director.
                    Even when the lowering of water quality
                    for a particular situation '(Le., a specific
                    pollutant in a particular waterbody) may
                    be considered de minimis and therefore
                    not subject to antidegradation
  demonstration requirement?, there may
  still be constraints on relaxing the
  limitation for the pollutant in question
  because of the requirements of the
  implementation procedures, such as
  those for margins of safety.

  2. Detailed Description of De Minimis
  Test           . .•
   a. Specific Tests Included inDe
  Minimis Demonstration. For substances
  other than BCCs, a lowering of water
  quality may be considered de minimis

   i. The lowering of water quality uses
  less than 10 percent of the unused
  assimilative capacity; and,
   ii. For pollutants included on Table 5
  of proposed section 132.4, at least 10
 percent of the total assimilative capacity
 remains unused after the lowering of
 water quality.
   The ae minimis tests rely on the
 concept of assimilative capacity, which
 is the ability of a waterbody to receive
 the discharge of pollutants and still
 attain applicable water quality
 standards. The total assimilative
 capacity is determined as the product of
 the applicable water quality criteria
 times the critical low flow, or
 designated mixing volume in the case of
 lakes, for the waterbody in the area •
 where the water quality is proposed to
 be lowered, expressed as a mass loading
 rate. The unused assimilative capacity is
 that amount of the total assimilative  ,
 capacity not utilized by point source
 and nonpoint source discharges,
 including background. The unused
 assimilative capacity is established at
 the time the request to lower water
 quality is considered. The total
 assimilative capacity should remain
 relatively constant over time, changing
 only as the applicable criteria change or
 the critical low flow of the receiving
 water changes, for instance, due to
 physical diversions or new flow data
 used to calculate the critical low flow.
 The unused assimilative capacity will
 be redefined each time a de minimis test
 is conducted and may increase or
 decrease due to, for instance,
 improvements in water quality, or-
 increased uses of the waterbody,
 respectively. EPA recognizes that some
 pollutants will not be amenable to this
 procedure for calculating total
 assimilative capacity {e.g., pH, color,   :
 alkalinity, dissolved oxygen, salinity,
 temperature). For such pollutants the
 Director should employ other       -
 techniques to determine total
assimilative capacity, as appropriate.
  With the first de minimis criterion
identified above, EPA and the Great
Lakes States and Tribes have established
a threshold below which the lowering of

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                 Federal Register /Vol. 58, No.  72 / Friday, April  16,  1993 /Proposed  Rules
                                                                     20903
 water quality may not be considered :••
; significant enough, to warrant a
L thorough antidegradation review. It is
 .proposed that a single action which • -. •
 lowers water quality less than ten
 percent of the total amount-that might
 have been available to accommodate all
 new actions'could be considered :,      .
 insignificant by the Director: when  .
 determining if that action must satisfy
; antidegradation requirements. EPA and
 the Great Lakes States and Tribes
 believe that the 10 percent value chosen
 as the threshold represents a reasonable
 balance between the need of the
 regulatory agencies to limit the number
 of actions involving non-BCCs that are
 subjected to the detailed
 antidegradation demonstration
 requirements and the need to protect   .
 and maintain water quality.  In
 particular, it is believed that any
 individual decision to lower water
 quality for non-BCCs that is  limited to
 10 percent of the unused assimilative
 capacity represents minimal risk to the
 receiving water and its ability to support
 all existing uses. The Director always
 has the ability to override the results of
 a de minimis test to determine, thai: an
• action must satisfy antidegradation
 demonstration requirements if  ,  '
 information is available to the Director
 that suggests that the lowering of water
 quality should be considered
 significant. Note also that each
 successive lowering of water quality on
 an individual waterbody segment will
 have to be smaller than:the previous
 lowering, in absolute terms, for it to be
 considered de minimis. (For example, if
 the first time that water quality on a
 stream were lowered, the unused
 assimilative capacity was 100 pounds
 per day, the de minimis atoount would
 have been up to 10 pounds per,day.   •
 Presuming an action went forward as de
 minimis, using 9.5 pounds per da}', the
 resulting unused assimilative capacity .
 for that segment would be 90.5 pounds
 per day. The next action would have to ;
 involve an increase pf less than 9.05
 pounds per  day to be considered de  ,
 minimis,.and so on.) EPA welcomes   •
 comment on this'criterion and is
 especially interested in examples of de
 minimis thresholds that are currently,
 used by States oi: Tribes-in. water quality
 decision-making, and the rationale that
 the State or tribe relied upon in the
 choice of the threshold,
   The second criterion involves
 pollutants that would not be subject to
 the Implementation procedures in this
 proposed Guidance. (These pollutants
 are listed in Table 5 of proposed section
 132.4; the reader is referred to section n.
 F of this preamble for a discussion of
these pollutants.) This criterion ensures
that a margin of safety (MOS) is set
aside for such pollutants so that the de
minimis lowering of water quality
cannot utilize the entire assimilative.
capacity. Under this criterion, an action
involving nbn-GLWQI pollutants may
be considered de minimis only if atleast
ten percent of the total assimilative
capacity remains unused after the action
occurs.                     •".'••... :
   All pollutants that are covered by the
implementation procedures are subject '
to the requirements related to TMDLs,
WLAs, LAs and margins of safety
(MQSs). In particular, the MOS
requirements would set aside a portion
of what the de minimis test terms:the
unused assimilative capacity when
decisions are made regarding discharge
limitations. Actions that result in a
lowering of water quality,' the size of
which might be considered de minimis
under the antidegradation procedures,
might not be allowable under the
implementation procedures, because the
margin of safety'requirements might
preclude any increase of the discharge
mass loading rate limits. In this mannerj
for the GLWQI pollutants, the
Implementation and Antidegradation   !
Procedures complement each other to
ensure that de minimis decisions would
not use up the entire unused
assimilative capacity. However, as
discussed below, under "3. Issues", EPA
has concerns regarding the effectiveness
of this procedure and is inviting
comment on an additional alternative.
   b. Examples. The following examples
illustrate how the de minimis test ; •.
works:           ...     '
   i. Example 1. In a stream tributary'to
a Great Lake, the most stringent
applicable water quality standards for
cadmium is 1.8 ug/L. The critical low
flow of the stream is the 7Q10 of 3000
cfs. The resulting total assimilative
capacity of this stream for cadmium is
, 29 pounds per day. At the time the
request is made to increase the loading
of cadmium to the stream, existing point
and nonpoint sources and background
contribute 14 pounds of cadmium per
day to the stream segment, resulting in
an unused assimilative capacity of 15
pounds per day. Provided that the
increassLsought is less than 1.5 pounds
per day, the increase may be considered
 de ininimis.             '
   ii. Example 2. For a discharge directly
to a Great Lake, .the total assimilative
 capacity is based on an allowable
 dilution of 10 to one. Assuming that the
background concentration of iron was 0
 ug/L, to meet a chronic water quality
 standards for iron of 300 Ug/L the ••;
; effluent limit for iron would be 10 times
 300 ug/L, which is 3*000 ,ug/L (or three
mg/L). For a discharge of one MGD, the
maximum allowable load is 25 pounds
per day.              ,                ".
  Analysis of available data shows that
the background concentration of iron
attributable to all point and nonpoint
sources is 100 ug/L. Therefore, the
unused assimilative capacity is 300-^-
100 or 200 ug/L, which translates to 17
poimds per day. The de minimis
amount for iron for the one MGD
discharge is  10 percent of 17 pounds per
day, or 1.7 pounds per day.
  lii. Example 3. In a stream tributary to
a Great Lake, the dissolved oxygen
standard (a Table 5 "excluded"
pollutant) is four mg/L at critical flow
and temperature conditions. The
existing daily average dissolved oxygen
in the stream is six mg/L. The unused
assimilative capacity is two mg/L. The
de minimis dissolved oxygen impact is
10 percent of two mg/L or 0.2 mg/L. An
assimilative capacity analysis of the
tributary in question would be
conducted to identify the biological
oxygen demand (BODs) load that would
achieve four mg/L, six mg/L, and the
load increment that is equivalent to 0.2
mg/L of dissolved oxygen impact. A
BODs loading increase that corresponds
to 0.2 mg/L dissolved oxygen impact
could be considered de minimis, ,,t
because 10 percent of the total
assimilative capacity remains, unused.
In contrast, if the existing dissolved
.oxygen was 4.4 mg/L, then no increase
in BOD'could be de minimis because
more than 90 percent of the total       '• /
assimilative capacity would be utilized
after the increase, i.e., the resulting
dissolved oxygen would go below 4.4
mg/L.     '         '..:-.'•

3. Issues              ,       '
  During the GLWQI Technical Work
Group discussions regarding the use of
a de minimis test and the criteria that
should define it, numerous issues were
deliberated; and several alternatives
considered.  In addition to  comments on
the ,de minimis test laid out in the
proposed Guidance, EPA Solicits
comments on the issues and decisions
discussed below. Also, as discussed
above, under G.2 "Significant Lowering
of Water Quality", EPA is inviting   -
comment on whether the use of the de
minimis test should be extended to
BGCs. EPA is interested in suggestions
regarding any changes that should be
made to the de minimis tests to address
BCCs if such a change were made to the
proposed Guidance.  .     '   -
   a. Use of Assimilative Capacity in De
Minimis Decision, EPA notes that the
assimilative capacity described above is
functionally the same as the loading
capacity that is defined in the Federal   '

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 20904
Federal  Register /  Vol.  58,  No. 72  / Friday, April  16,  1993 / Proposed Rules
 regulations at 40 CFR 130.2(f) and
 which forms the basis for total
 maximum daily load (TMDL)
 calculations. TMDLs are discussed in
 the implementation procedures section
 of this preamble. The technical analysis
 used to derive a TMDL may employ
 moro sophisticated modelling
 techniques, but is intended to
 accomplish the same end as the
 determination of the assimilative
 capacity. EPA and the Great Lakes
 States decided to use the assimilative
 capacity instead of TMDL in the
 definition of a de minimis increase
 because of concerns regarding the
 regulatory approval requirements
 associated with formal TMDLs. TMDLs,
 Including the derivation of the actual
 TMDL number and the decisions
 regarding allocation between point and
 nonpoint sources and margins of safety,
 receive formal EPA review and approval
 as part of the water quality management
 process. The State representatives on
 the Initiative Steering Committee were
 concerned that should the term TMDL
 be used in tha de minimis definition,
 their ability to make decisions on
 potentially de minimis requests to lower
 water quality woold be significantly
 delayed and diminished, but the basis
 for the de minimis decision  would not
 be improved. In addition, TMDLs might
 not be conducted on the water bodies
 that might be subject to requests for
 lowering of water quality, since TMDLs
 are required only for the water quality
 limited segments identified by the
 States pursuant to 40 CFR 130.7(b), and
 water quality limited segments are
 prohibited from any degradation by the
 pollutant of concern under the proposed
 antidagradation standards. EPA requests
 comment on the proposed approach and
 the considerations discussed above.
  b. Fixing Assimilative Capacity at a
 Date Certain and Choice of Date, The de
 minimis test in the proposed Guidance
 requires that the total assimilative
 capacity and the unused assimilative
 capacity be determined at the time the
 request to lower water quality is
 considered. The total assimilative
 capacity should remain relatively
 constant over time, changing only as the
 applicable criteria change or the critical
 low flow of the receiving water changes,
 for instance due to physical diversions
 or new flow data used to calculate the
 critical low flow. The unused
 assimilative capacity will be redefined
 each time a de minimis test is
 conducted and may increase or decrease
 duo to, for instance, improvements in
 water quality, or increased uses of the
waterbody, respectively.
  EPA and the Great Lakes States chose
 the proposed de minimis procedure
                      after consideration of a number of
                      alternatives. One alternative considered
                      would have required the States to
                      determine the total assimilative capacity
                      and the unused assimilative capacity on
                      the date that the State antidegradation
                      policy, as revised pursuant to the
                      proposed Guidance and formally
                      adopted into State standards, became
                      effective. This approach would have
                      required that States "fix" the
                      assimilative capacity numbers in all
                      Great Lakes System waterbodies in the
                      State on a specific date, and all future -
                      requests to lower water quality would
                      be considered against these numbers. As
                      with the proposed approach, an action
                      could be considered de minimis  if it
                      used less than 10 percent of that original
                    , unused assimilative capacity. In
                      addition, at least 50 percent of the
                      original unused assimilative capacity
                      was required to remain after the
                      lowering of water quality for the
                      lowering to be considered de minimis.
                        Several concerns with this alternative
                      led EPA not to propose if First, there   ,
                      was concern that it would be logistically
                      impossible for a State or Tribe to
                      determine the unused assimilative'
                      capacity numbers for all applicable
                      pollutants in all the Great Lakes System
                      waterbodies on a single date. In
                      addition, there were concerns expressed
                      about the tracking required to determine
                      when the cumulative effect of all actions
                      that lowered water quality approached
                      50 percent of the initial unused
                      assimilative capacity. Coupled with the
                      questionable feasibility of this approach
                     was the sense of the Work Group
                     members that establishing the unused
                     assimilative capacity at a date certain
                     and then measuring all future changes
                     against that figure would not accurately
                     assess the significance of any given
                     future action. Changes in the water
                     quality that had occurred since the
                     unused assimilative capacity was
                     determined might not be reflected in the
                     de minimis decision. In particular,
                     improvements in the water quality,
                     which might have led to larger mass
                     load increases qualifying as de minimis,
                     would not have played a role in this
                     approach.
                       A second alternative considered by
                     the Technical Work Group would have
                     allowed the unused assimilative
                     capacity to be established on the date of
                     the first request to lower water quality
                     on the segment of the waterbody
                     affected. This alternative was intended
                     to address the concern expressed  about
                     the first alternative regarding the
                     feasibility of establishing the unused
                     assimilative capacity for all non-BCC
                     pollutants on all Great Lakes System
                     waterbodies at the same time. Under the
 second, alternative approach, the unused
 assimilative capacity for a particular
 waterbody would not be defined until
 an action was considered that might
 lower water quality.-This would spread
 this workload out over a far greater time
 period than the first alternative, and
 perhaps eliminate the need altogether
 for such an evaluation of some
 waterbodies. An additional benefit that
 the Work Group perceived was that the
 amount and quaflty of the data used to
 define the unused assimilative capacity
 would likely be improved under the
 second alternative, as compared to the
 first. Nonetheless, the other
 disadvantages of the first alternative
 were not improved by the second.  EPA'
 requests comment on the proposed '
 approach and the alternatives
 considered by the Work Group, and
 welcomes suggestions on other possible
 alternatives.      .
   c. Demonstration That No Ambient
 Change Occurs as a Result of Increased
 Loading. Although not a part of the de
 minimis test, per se, the definition of
 significant lowering of water quality.
 allows the Director to eliminate certain
 point and nonpoint actions that might
 involve increased mass loadings of non-
 BCCs from the antidegradation
 requirements where it is demonstrated
 to the satisfaction of the Director that
 the ambient cTShcentration ,of the
 pollutant in the affected water body,
-outside of any applicable designated
 point source mixing zone, will not
 increase. The provisions further state
 that the Director may also take into
 consideration potential impacts on
 sediments and biota in the affected
 waterbody in reaching the decision.
  EPA and the Great Lakes States
 decided to give the Director a       , ,  *
 mechanism, separate from the de
 minimis test, to exclude actions that
 would require an increased mass
 loading rate limit, but would not
 significantly lower water quality. For
 instance, a point source, which draws
 ground water as its process water
 supply, might consider a production
 increase that will require that it double
 its discharge flow rate, and, therefore,
 seek a doubling of the mass loading rate
 limit in its permit. The discharger might
 seek to prove that water quality is not
significantly lowered by providing
information for the pollutants involved
regarding the projected concentration in
the receiving water after allowable
mixing. The Director might also request
information on any potential effects on
the sediments and biota,.including those
within the mixing zone where
particulates might rapidly settle out of
the discharge into the sediments. If tha
Director concludes, based on the

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                                                                   20905
 analysis of this and any/ other available
 information, that the increase in the
 mass loading rate limit on a non-BCG
 would not result in an increase in the
 ambient concentration Of the pollutant*
 then the action may ba considered not
 to significantly lower water quality.
 " "EPA believes that by providing for
 such a demonstration, the number of
 antidegradation reviews, and the       ;
 associated costs to the regulatory agency
 and the regulated public, will be,
 reduced. More importantly. EPA does
 not believe that the environment will be
 adversely affected as a result of the
. proposed demonstration, because it
 does not apply to BCCs and it allows the
 Director to evaluate the potential points
 of accumulation of persistent substances
" when, deciding if the action will have -
 adverse effects. EPA is concerned that"
 any increase in the rate of mass loading
 of a BCC has the potential to    •
 significantly lower water quality, „
 because such substances accumulate in
> the biota, do not readily degrade, and  .
 often result in adverse effects at
 concentrations well below those that
 can be accurately measured in the  ,
 ambient environment. In contrast,
 however, many of the other pollutants
 do not persist or bioaccumulate
 significantly. For these substances it
 may not be essential that an increase in
 the rate of mass loading be prevented in
 order for water quality to be maintained
 and protected. The demonstration
 provides information to the Director to
 make a decision on whether an increase
 in a mass loading limit for a substance
 other than a BCC changes the ambient
 water quality, and highlights areas such
 as sediment contamination that could
 reflect degradation and, depending on
 the chemical, should receive special
 attention.
   EPA invites comment on this
„ proposed provision and welcomes
 suggestions about how it might be  _'
 improved. As discussed above, Yindee
 C.2 "Significant Lowering of Water
 Quality", EPA is also inviting comment
, on whether the use of the de minimis
 test and the demonstration of no
 ambient change should be extended to .
 BCCs. EPA is interested in suggestions
 regarding any changes that should be
 made to the demonstration of no
 ambient change to address BCCs if such
 a change were made to the proposed
 Guidance.                        .
   Proposed procedure 5 of appendix F
  whether water quality-based effluent
  sections VHI.E and F of this preamble).
  The decision about whether or not
 limits are to be required in a permit is
 different than- the.; decision, discussed
 above, regarding whether or not a
 proposed increase in a limit results in
 the significant lowering of water quality.
 EPA believes that the latter decision has
 no bearing on the former and that this •
 element of the proposed Great Lakes
 Antidegradation Policy should-not be
 used in a determination pursuant to
 proposed procedure 5 of appendix F,
   d. Use of the Margin of Safety
 Specified in the Implementation
 Procedures as a Ceiling on De Minimis
 Decisions. For non-BCC pollutants on
 the GLWQI list of pollutants (i.e., those
 for which the implementation
 procedures are applicable), the
 proposed de minimis test relies on tie  ,
 implementation procedures margin of
 safety (MOS) provisions to prevent the
 allocation of virtually the entire unused
 assimilative capacity to any source or
 sources. The de minimis test only looks
 at the relative magnitude of the lowering
 of water quality resulting from any
 individual action in comparison to the
 unused assimilative capacity for the
 pollutant in question. Provided that the
 action uses no more than 10 percent of
 the unused assimilative capacity, it may
 be considered de minimis.
   The MOS requirements provide an
 additional measure of safety to the
 process. The implementation
 procedures require that a portion-of the
 TMDL (which is equivalent to the   "•
 assimilative capacity) be set aside as a
 MOS and not allocated to any source.
 Although an action might be judged de
 minimis and exempted from the     r
 antidegradatiottdemonstration' ..
 requirements, the actual decision by the
 regulatory agency on the appropriate
 discharge limits, would be made
 pursuant to the implementation
 procedures. An increase in the limits
 would only be allowed if an adequate
 MOS remained after the increase in the
 waste load allocation or load allocation;
 and associated limits.  , .'..';    '....'.
   EPA considered building such: a MOS
 provision directly into the de minimis
 decision, as it has for pollutants not
 covered by the implementation
 procedures. Specifically, one option.
 considered for the de minimis
 procedure had included a,requirement
 •that'at least 50 percent of the initial
 unused assimilative capacity remain
 after the lowering of water quality (in
 addition to the existing. 10 percent
 increment requirement) for an action to
 be considered de minimis. This option
 was rejected by the Technical Woik  •
 Group because it was considered
 redundant with the implementation
 procedures'MOS requirement.   .-,
.Additionally, the decision not to fix the
unused assimilative capacity oh a date
certain (see discussion of previous
issue) made the use of a 50 percent cap,
as specified above, impracticable,
  EPA has concerns about the reliance
on the MOS requirements* which merit
special attention and public comment.
EPA is committed to the type of a cap
that the MOS requirement in the .
antidegradation context would appear to
provide, but is concerned that the MOS
implementation procedure will provide
limited coverage. In particular,.the MOS
implementation procedure is; a part of
the larger TMDL process. As described
above under the first issue, "Use of
Assimilative Capacity hi Da Minimis __.
Decision," TMDLs are only required on
a limited number of waterbodies, for a
limited number of pollutants, and the
particular conditions that would   '.'.'"
mandate a TMDL (i.e., a water quality
limited segment) might eliminate the
potential to allow any lowering of water
quality. In essence, there is a good
likelihood that the waterbodies with
TMDLs. will be the waterbodies for
which a de minimis lowering of Water
quality is not available, and vice versa,
the waterbodies for which de minimis is
a meaningful test will not require
TMDLs.
  Where an MOS is defined, EPA
requests, comment on whether it
establishes the cap at a level appropriate
for a de minimis test. As discussed
above, EPA and the Great Lakes States
had considered a cap of 50 percent of  .
the initial unused assimilative capacity
as reasonable in the context of a da
minimis decision. One TMDL/MOS
alternative currently under
consideration would establish the MOS
at 25 or 75 percent of the TMDL, within
the range considered acceptable for the
de minimis test,- and probably more
protective than .the figure of 50 percent
of .the unused assimilative capacity.
However, another TMDL alternative in
the proposed Guidance would allow the
MOS to be virtually eliminated if the
data supporting the TMDL are
considered to be complete. EPA is
concerned that the second alternative
would not provide a reliable protective
cap for the de minimis procedure.
 •  EPA requests comment on these two
, issues regarding the use of the
implementation procedures'MOS
requirement, and, in particular, seeks
advice on the need to directly
incorporate a. cap into the de minimis
test rather than rely on an. external
process that may not always be
available. ~
   e. Multiple De Minimis Lowering of
 Water Quality by a Single Source. The
de minimis test ini the proposed
Guidance1 does not restrict the number

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 20906
Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
 of times that any individual source
 could seek an increase in permit limits
 for a non-BCC, and have that increase
 considered de minimis. The proposed
 Guidance simply looks at the effect of
 individual actions, not the source
 involved.
   This has led to a concern that under
 the test, dischargers would try to get
 piecemeal approval of large projects by
 submitting multiple requests to lower
 water quality, each of which could be
 considered de minimis, but the net
 effect of which would be significant
 lowering of water quality. EPA believes
 that the procedure provides the Director
 with the discretion to prevent such
 abuse, but is nonetheless concerned that
 there could bo considerable pressure
 brought on the Director to allow relief
 in individual cases.
   EPA solicits comments on this
 concern. In particular, EPA is interested
 in whether cornmenters believe that it
 would be appropriate to limit the
 number of de minimis actions allowed
 any individual source to one (or some
 other number).
   EPA also solicits comment on an
 approach that would address multiple
 lowering of water quality by different
 sources where the net effect is greater
 than  10 percent of the unused
 assimilative capacity. The approach
 proposed in this policy would
 potentially allow any individual action
 that uses less than 10 percent of the
 unused assimilative capacity to be
 considered de minimis, provided that
 tho MOS requirement of the
 implementation procedures or the
 requirement in the definition of de
 mlnimls  in section II.A of appendix E of
 tho Great Lakes antidegradation policy
 was satisfied. During Work Group
 deliberations, EPA considered an
 alternate approach that would have
 assessed the cumulative effect of
 sequential actions when determining if
 the lowering of %vater quality used less
 than 10 percent of the unused
 assimilative capacity. For example,
 under such an approach, an action that
 utilized six percent of the unused
assimilative capacity might be
 considered de minimis, while a
 subsequent action that utilized five
 percent of the unused assimilative
 capacity could not be considered de
 minimis, because the net effect of the
two actions was greater than 10 percent
 of the unused assimilative capacity. The
second action would be forced to go
through a complete antidegradation
raview. However, subsequent actions
would bo evaluated against the unused
assimilative capacity that would exist
after the Director's antidegradation
decision was implemented, with the
                      potential for future de minimis lowering
                      of water quality until such time as the
                      next 10 percent increment was utilized.
                        EPA is not proposing this approach '
                      because of concerns regarding its
                      implementation. EPA believes that the
                      proposed de minimis requirements
                      provide adequate protection of water
                      quality. Further, the implementation of
                      an approach such as that described
                      above may place inequitable burdens on
                      entities that propose to lower water
                      quality, based not on the extent of
                      degradation posed by any individual
                      action, but rather as a result of the
                      position in which it falls in a sequence
                      of decisions. EPA believes that the
                      assessment of multiple lowering of
                      water quality is best addressed with the
                      proposed MOS requirements and the
                      proposed de minimis requirements of
                      section II.A of appendix E of the
                      proposed Guidance. The intent of these
                      provisions hi the proposed approach is
                      to capture the effect of multiple actions
                      by establishing a single point beyond
                      which no individual action could be
                      considered de minimis. EPA welcomes
                      comment on this alternative approach to
                      addressing multiple lowering of water
                      quality, as well as the concerns noted
                      above.

                      F. Antidegradation Demonstration
                      Components

                      1. Background and Rationale

                       Both the Federal antidegradation
                      policy and the antidegradation policy
                      proposed in the proposed Guidance
                      provide the regulatory, agency with the
                      opportunity to allow the lowering of
                      water quality in HQWs, if it is found
                      that "the lowering of water quality is
                      necessary to accommodate important
                      social and economic development in the
                      area in which the waters are located."
                      To date, EPA has provided little formal
                      guidance on what it considers the
                      specific tests that should be used or
                      criteria that should be satisfied to
                      demonstrate that a lowering of water
                      quality meets this requirement. The
                      proposed Great Lakes Guidance tries to
                      Strike a balance between the need to
                      protect and maintain high quality water
                      and the need to accommodate growth.
                      The existing National policy requires
                      this balance to be struck and the.   .
                      decision to be a public one. The tests
                      established by the proposed Guidance
                      are intended to be reasonable tools to
                      accomplish that balance. EPA invites
                      comments and suggestions on all
                      aspects of the antidegradation
                      demonstration and decision parts of the
                     proposed Guidance to ensure they are
                     reasonable.
   As discussed during GLWQI
 Technical Work Group meetings, this
 part of the antidegradation policy, in
 particular, is viewed by the Great Lakes
 States and the regulated community as
 having a very high potential to lead to
 inconsistent decision-making between-
 and even within States" and Tribes. Two
 of the primary objectives of EPA and the
 Steering Committee in developing this
 antidegradation guidance were to
 provide an explicit description of the
 meaning of this requirement and an
 increased level of specificity regarding
 the appropriate tests and     ,   ' '  ,  .
 demonstrations to make such a showing.
   The Great Lakes Antidegradation
 Guidance, in defining the
 demonstrations required to show that a
 lowering of water quality should be • •
 allowed, begins with a literal
 interpretation of the National regulation.
 That is, it interprets the phrase, "the
 lowering of water quality is necessary to
 accommodate important social and
 economic development in the area in
 which the water's are located" to mean
 that two types of demonstrations are
 required: one that shows that the
 lowering of water quality is necessary,
 or cannot be avoided, to support the
 development; and a second that shows
 that the development is important, EPA
 specifically invites comment on this
 interpretation of the existing National
 regulation. The two types of
 demonstrations are defined under the
 Antidegradation Demonstration heading
 in the proposed Guidance (section III of
 appendix E to part 132), and the
 requirements for the incorporation of
 the results of the demonstrations  into
 water quality decisions are'found under
 the heading Antidegradation Decision
 (section IV of appendix E to part 132).
   The Antidegradation Demonstration
 section of the proposed Guidance ..
 identifies two broad categories that will
 be required of an entity to make the
 "necessary" component'of the
 demonstration; information to show
 how prudent and feasible pollution
 prevention alternatives might be
 implemented to  eliminate or reduce the
 extent to which watervquality is
 significantly lowered (section III.A of
 appendix E to part 132); and
 information to show what alternative or
 enhanced treatment exists that would
 eliminate the significant lowering of
 water quality and what it costs in
.comparison to the cost of "normal"
 pollution control (section IILB of
 appendix E to part 132). Each of these
 is discussed in detail below.
   The Antidegradation  Demonstration  '
 section also identifies information that
 will be required of an entity that is
 seeking to significantly lower water

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                 Federal  Register  /Vol.  58.  No. 72  /Friday. April 16-1993 / Proposed Rules  '       20907
 quality in order to show that the
 lowering supports "important social or
 economic development'* (section HI.D of
 appendix E of the proposed Guidance).
- Five broad categories of social or
 economic developments, which are  '
 considered important, are identified.
 This demonstration, too, is described in
 detail below and under a separate
- subsequent heading in this preamble.
• 2. Hierarchy of Antidegradation
 Demonstrations               '"•'.''-'-.

   A hierarchy is established for the
 demonstrations in. the proposed
 Guidance that is not only a logical
 sequence but also reflects a priority of
 EPA. As laid out in the proposed
 Guidance,, the first tier in the hierarchy
 is. the pollution prevention alternatives
 analysis: successful implementation of
 such alternatives to eliminate the
, significant lowering of water quality
 ,relieyes the entity of the requirement to
i supply additional information regarding
 alternative or enhanced treatinenl and
 the social or economic development
 p'rovided by the action. EPA believes it
 is appropriate to require that art entity
 provide information that the Director
 .will use to determine if the lowering of
 water quality is necessary,. i.e., cannot
 be prevented while still accommodating
" the action, before it is required to
 demonstrate that the action is an  .  -
, important social or economic
 development or is critical to ths support
 of such  development. Furthermore, EPA
 and the Great Lakes Steering Committee
 place a very high priority on the
 application of pollution prevention
. techniques as. the preferred approach to
;%prevent or reduce the significant
 lowering of water quality. Consequently,
 the first demonstration evaluates the
 extent to which prudent and feasible
 pollution prevention alternatives reduce
 or eliminate the significant lowering of
 water quality that would otherwise
 accompany the development, la  •
 assessing prudent and feasible      ,
" alternatives, EPA believes that it will be
 appropriate to compare the unit cost
 (dollars per toxic pound equivalent) of
 removing a pollutant or type of
 •pollutant using the pollution prevention
 alternatives under consideration with.
 benchmark controlestimates. As a
 benchmark for such a comparison, EPA
 is considering the unit cost estimates
 ($1.30 to $10.40 per toxic pound
 equivalent) developed for source
 categories as a part of this rulemaking
 or, alternatively, the incremental cost
 estimates developed as a part of EPA *s
 'effluent guidelines for source categories
 ($1 to $500 per toxic pound equivalent).
 Thd details of this demonstration are  '
 discussed under section F.3 of this
 preamble.
   The proposed Guidance directs the
 regulatory agency to require the
 implementation of prudent and feasible
 pollution prevention alternatives as a
 precondition to the lowering of water
 quality. If the implementation of such
 alternatives would eliminate the need to
 significantly lower water quality, no
 further: demonstrations are required, the
. facility may proceed (with the pollution
 prevention measures in place), and
 appropriate control requirements are
 established in the control document to
 ensure that water quality is not ----._
 significantly lowered. If prudent and
 feasible pollution prevention
 alternatives do not eliminate the
 lowering of water quality, but do reduce
 the extent to which the water quality is
 significantly lowered,, the Director will
 establish conditions in the control
 document that, at a minimum,  ensure
• that water quality is not lowered any
 more than it would be if the prudent
 and feasible pollution prevention
 alternatives were implemented, and
 which may be more stringent depending
 on the results of the other evaluations in
 this section.  .
   The second tier in the hierarchy
 requires the evaluation of alternative or
 enhanced treatment techniques to.
 determine the cost to the entity of  ,.
 providing additional or different
 treatment to eliminate the significant
 lowering of water quality. Again, EPA
 believes it is appropriate to require that
 an entity provide Information for the
 Director to use to determine if the
 lowering of water quality is necessary
* before it is required to provide  •
 information for the Director to  use to
 determine if the action is an important
.social or economic development or Js
 critical to the support of such
 development. This tier represents a
 second type of ^formation that the
 Director may use to determine if the
 significant lowering of water quality is
 necessary. This evaluation builds on the
 results of the first: if prudent and
 feasible pollution prevention   "
 alternatives could eliminate a portion of
 the significant lowering of water quality,
 i.e., reduce the amount by which the
 rate of mass loading of a pollutant must
 be increased to accommodate the action,
 then the evaluation of alternative or
 enhanced treatment techniques should
 be applied to the remaining increase in
 •loading. (As an example,, if a proposed
 action initially would have required an
 increase in the rate of mass loading of
 a pollutant of 100 pounds per day.'and
 the implementation of prudent and
 feasible pollution prevention
 alternatives drops that increase to 50  •
 pounds, per day, then the evaluation of
 alternative or enhanced treatment
 should, generally, only look at the cost
 of eliminating the remaining 50 pounds
 per day.) The cost (capital and operation
 and maintenance) of the alternative or
 enhanced treatment is. compared to the
 comparable cost of the treatment
 required to meet technology- or water  ,
' quality-based requirements or
 requirements based on other State or
 Federal standards and, where the ratio
 is less than or equal to 1.1 to one, the
 lowering of water quality is not
" considered "necessary" and there Is no
 need to consider information on the
 social or economic development that the
 proposed significant lowering of water   .
 quality would have supported. Instead,
 as the Antidegradation Decision .
 provision of section tV.A«2 of appendix
 E to part 132 requires, the significant  .
 lowering of water quality is not aHowed,-
 and.either the permitted discharge
 levels remain unchanged or the
.appropriate control requirements are
 established in the control document to
 ensure that water quality is not
 Significantly lowered. As an alternative,
 EPA is requesting comments on a cost
 effectiveness approach using a
 comparison of the control costs (per
 toxic pound equivalent) of the enhanced
 treatment .with baseline control costs
 (per toxic pound equivalent). When
 control costs for the enhanced treatment
 are no greater than the baseline costs,
 facilities would be expected to adopt the
 enhanced treatment techniques.The
 details of the second demonstration ara
 discussed in section F.4 of this  ,
 preamble.
   There may be occasions-when it is
 more cost effective to simply provide
 alternative or enhanced treatment to
 eliminate the significant lowering of
 water quality, rather than to couple such
 treatment witii pollution prevention
 techniques, and a discharger may    ;
 propose feat treatment alone be used to
 eliminate the> significant lowering of
 water quality. In reaching such a
 decision, EPA anticipates that the  .
 discharger would have evaluated the
 benefits of the available pollution
 prevention alternative, such as the
 reduction in cross-media pollutant
 transfers and any associated regulation
 under other environmental statutes.
 This proposed Guidance provides the
 flexibility for the Director to
 accommodate those situations* with the.
 objective of finding the most
 appropriate means of eliminating the
 significant lowering of water quality,
 where possible. EPA, however, believes
 that in the majority of situations, the
 prudent and feasible pollution

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 20908          Federal  Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
 prevention alternatives will
 complement the alternative or enhanced
 treatment techniques, and that the most
 effective mechanism to prevent the
 significant lowering of water quality
 wul be a combination of the two.
   Tho third tier of the hierarchy is the
 demonstration that the significant
 lowering of water quality is critical to
 important social and economic
 development. To have reached this
 point in the process, the Director would
 have been given information on the
 ability of the entity to prevent the
 significant lowering of water quality and
 that information would have shown that
 the significant lowering of water quality
 could not be prevented by the
 application of prudent and feasible
 pollution prevention alternatives in
 combination with alternative or
 enhanced treatment that is available
 Within a defined cost range. The
 proposed Guidance requires the entity
 to demonstrate how a decision not to
 allow the significant lowering of water
 quality, i.e., disapproval of the proposed
 significant lowering of water quality,
 will prevent important social or
 nconomic development in the area in
 which the waters are located. The
 proposed Guidance lays out five broad
 areas of social or economic
 development, which would be
 considered "important". These are
 discussed in detail in section F.5 of this
 preamble. If the significant lowering of
 water quality is critical to a
 development in any one of these areas,
 the Director may tentatively approve it,
 subject to public comment and
 intergovernmental coordination,
 3. Identification of Prudent and Feasible
 Pollution Prevention Alternatives TO
 Prevent or Reduce the Significant
 Lowering of Water Quality
  The pollution prevention alternatives
 analysis section of the proposed
 Guidance, section m.A of appendix E to
 part 132, identifies five categories of
 alternatives that must be evaluated by
 an entity seeking to significantly lower
 water quality. They are as follows:
  a. Substitution ofBCCs ivith Non-
 bioaccumulative and/or Non-toxic
 Substances. The primary objective of
 this evaluation is to determine if the
 source of a BCC, which would otherwise
 be causing or contributing to a
 significant lowering of water quality,
 can be eliminated in favor of a less
environmentally problematic substance,
 for example a substance that is not a
BCO
  b. Application of Water Conservation
 Methods. This evaluation considers
whether the introduction of water
conservation methods by a discharger is
 feasible and, if so, whether their
.implementation would prevent or
 reduce the significant lowering of water
 quality;
   c. Waste Source Reductions Within
 Process Streams. Certain production
 processes may have the potential to be
 "fine-tuned", but have not been because
 of a lack of any compelling reason to
 attempt to do so in the past. This
 evaluation would look at the potential
 for such fine tuning to relieve the need
 to significantly lower water quality;
   d. Recycle/Reuse of Waste
 Byproducts, Either Liquid, Solid, or
 Gaseous. Internal recycling/reuse of
 waste streams is a common practice in •
 many industrial and manufacturing
 processes to hold down energy, raw
 materials, and waste disposal costs. This
 evaluation would consider whether-
 additional or new recycling/reuse
 operations are available that would
 relieve the need to significantly lower
 water quality; and
  e. Manufacturing Process Operational
 Changes. This evaluation would  '
 consider the alternatives to a particular
 industrial or manufacturing process that
 are available to the entity that seeks to
 significantly lower water quality. For
 many operations, a variety of processes
 exist to reach the same end product, or
 one that is within set tolerance limits.
 The specific operation should be
 evaluated and any available, acceptable
 alternatives that would relieve the
 significant lowering of water quality
 identified.
  The categories of pollution prevention
 information identified in the proposed
 Guidance are intended to be interpreted
 broadly so as to provide for
 consideration of a wide range of
 possible alternatives. Furthermore, it
 may well be appropriate for the Director
 to consider a combination of
 alternatives from several categories
 operating in conjunction. The categories
 provide a guideline on the minimum
 coverage of a pollution prevention
 evaluation for entities that seek
 authorization to significantly lower
 water quality. In addition, nothing in
 this demonstration requirement bars the
 Director from requestingjjollution
 prevention alternatives information as
 the Director might deem necessary to
 evaluate the request to significantly
 lower water quality. The authorities to
request the pollution prevention
information outlined in the proposed
Guidance, and any additional •
information the Director deems
necessary to make the evaluation, derive
from the same statutory provisions as
other information requests under the
NPDES and nonpoint source programs.
An entity that is pursuing authorization
 to significantly lower water quality
 should consult with the appropriate
 regulatory authority to determine the
 specific alternatives that it will be
 expected to evaluate.
   The following provides brief
 examples of alternatives that would be
 appropriate for consideration in the
 context of, first, an industrial point
 source and, second, a municipality,
 using the category "substitution of BCCs
 with non-bioaccumulative and/or non-
 toxic substances". Depending on the
• context, BCCs may be used as, or
 present in, raw materials in production
 processes, in consumer products, and in
 a variety of other ways.
   The scope of alternatives evaluated
 will vary according to the source. For
 example, a coal fired power plant
 seeking to increase its generating
 capacity might be faced with the
 prospect of a larger coal pile and an
 increased amount of mercury
 contaminated runoff. The alternatives
 that should be evaluated in such a
 situation, to reduce the loading of
 mercury from coal pile runoff, would
 include use of an alternative supply of
 coal containing less mercury as a trace
 contaminant. The substitution of a
 "cleaner" coal supply would have the
 added benefit of reducing air emissions
 of mercury, which would also help to
 maintain and protect water quality. The
 information provided by the power •
 plant would include the effectiveness of
 the alternative source with regard to
 reduction in the rate of mass loading of
 mercury, differential (greater or lesser)
 cost associated with the new coal  •
 source, impediments to using the
 alternate coal or its source (supplier),
 and other environmental effects
 (positive or negative), as the Director
 deems necessary to determine if the
 alternative is prudent and feasible.
   As another example, a municipality,  .
 which has a mercury mass loading limit
 in its NPDES permit, that is considering
 expansion of the sewer service area, and
 requests a corresponding increase in the,
 wastewater flow and mass loading
 limitations, would have a number of
 potential alternatives to limit the source
 of mercury discharges to its sewers. A
 ban on the introduction of mercury into
 the sewer system, coupled with a strong
 public education program emphasizing
 the problems with, for example, broken ,
 mercury thermometers, the contents of
 which are flushed down the toilet, or •
 mercury-containing exterior latex paint
 cleanup in the kitchen sink, might be a
 particularly viable alternative. The
 municipality should also consider the -
 effectiveness of workingjback to its  ~
 industrial users,to identify arid
 eliminate mercury sources using jts

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                 Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993 / Proposed Rules  -  .-;'.-   20909
 sewer use ordinance arid inspections to
 ensure compliance. .The same type of
. information as was Discussed in tlie
 power plant example above would be
 provided to assist the Director in
 determining if such alternatives are
 prudent and feasible.
   The proposed Guidance does not.
 specify criteria to be used by the        '.
 Director,to determine.what is "prudent
 and feasible." The decision that an
 alternative or combination of
 alternatives is prudent and feasible is
 the decision of the Director, and not the
 entity that is seeking to significantly
 lower water quality. States and Tribes
 are encouraged to develop their own
 guidelines to follow when evaluating
 pollution prevention alternatives
 identified by the entity to select those
 that are prudent and feasible. EPA
 believes that in •making this
 determination it will be appropriate to
 compare the control costs implicit to the
. pollution prevention alternative with.
 benchmark control costs. EPA requests
 comments on the merits of this
 approach and suggested alternatives that
 might be used to inform this decision.
   Concerns were expressed during
 deliberations on the proposed Guidance
 that the determination of what
 constitutes prudent  and feasible .
 pollution prevention alternatives could
 involve multiple iterations of
 demonstrations by the regulated entity.
1 In particular, there was a concern that
 the proposed Guidance does not itself
 specify the information needs for a
 satisfactory demonstration nor does it
 require that the needs be articulated
 definitively by the regulatory agency at
 the outset Furthermore, the proposed
 Guidance does not place constraints on
 the regulatory agency's ability to require
 multiple demonstrations by an entity
 until it provides information that the
. Director considers satisfactory. EPA
 ' acknowledges that the language in the
 proposed Guidance does not provide
 specific guidance on how the Director  :
 makes a determination of what is  '•.:
 prudent and feasible. EPA requests •.-.
 comment on the heed for establishing
 more specific criteria for this
• determination.
    EPA expects that  in implementing the
 prudent and feasible qriterion the   •
 regulatory agency and that the
 regulatory agency will not abuse the
 criterion to simply delay .projects
 , through multiple iterations of
 information requests. As discussed
 above, EPA anticipates that the States
 will develop guidance to assist in this. -
 .case-by-case decasioii'making..
 . Nonetheless, EPA .recognizes that there
  may be instances in which the.,.
 ; regulatory agency requires additional
information, beyond that anticipated in
an initial request, to make a decision on ;
prudent and feasible pollution
prevention techniques. While the
regulatory agency should seek to
develop guidance to limit such
instances, it should not be coihpelled to
make decisions on an inadequate    .-.'.-•
demonstration.  -
  EPA specifically requests comment on
the use of "prudent and feasible" as the
criterion upon which pollution
prevention alternatives are evaluated
and chosen by the Director. EPA is „ -
interested in whether the proposed
Guidance provides the correct level of
detail to assist in this decision, and if
not, what additional detail commenters
feel should be incorporated. While the
proposed Guidance does not explicitly
require cost/benefit or cost effectiveness
analyses, in determining what is
prudent and feasible EPA believes that
the Director will likely..weigh the cost of
the pollution prevention measures
against the benefits with regard to the
reductions in pollutant loading. EPA
requests comment about whether a
formal cost/benefit analysis or a cost
effectiveness-analysis with defined
decision criteria should be part of the
prudent and feasible decision. As
regards decision criteria for a cost
effectiveness analysis, EPA believes that
it may be appropriate to compare the
unit cost (dollars per pound equivalent)
of removing a pollutant or type of
pollutant using the pollution prevention
alternative under consideration with
unit cost estimates developed for this
rulemaking ($1.30 to $10.40 per toxic
pound equivalent) to reach a decision.
Alternatively, the incremental unit costs
associated with implementation of a
particular pollution prevention  •
alternative could be compared to the
incremental costs used in EPA's effluent
guidelines for a comparable industrial
category ($1 to $500 per toxic pound
equivalent for a waste stream)..In either
case, where such a comparison showed
that a pollution prevention alternative
could remove an equivalent amount of
a pollutant or pollutants at no greater
cost, that alternative could be     .
considered feasible. EPA requests
comment on these possible approaches 7
to assessing cost effectiveness. EPA
would also welcome examples of    >
alternative criteria that have been :
effectively employed by commenters in
similar decision-making situations.
4. Alternative or Enhanced Treatment
Alternatives That Eliminate the   ;
 Significant Lowering of Water Quality
   Section IH.B of appendix E of the
 proposed Guidance requires that an
 entity seeking to significantly lower
 water quality (and not able to identify  ,
 prudent and feasible pollution
 prevention alternatives that eliminate
 the need to significantly, lower water  j
 quality) provide information on the
 alternative Or enhanced treatment
 techniques that could be utilized to treat
 its waste stream and that eliminate the
 need to significantly lower water  •
 quality. Put another way, the entity has;
 to tell the Director what it. would cost
 for treatment to maintain the status quo .
 in terms of effluent quality for BCCs and
 effluent limits for other pollutants, and
 what that treatment would entail. In    "
 addition to the information on
 alternative or enhanced treatment, the
"entity must provide comparable
 information on the treatment that would
 be required to comply with the revised
 effluent limits that it is seeking. These
 revised limits would be defined by the
 applicable Federal effluent guidelines,
 .State water quality standards (other than
 antidegradation), and other applicable
 State or Federal standards.
   The cost information provided for this
 demonstration will include both total
 capital costs of treatment facilities and
 the operation and maintenance Costs   ."~
 associated with running them. Cost
 information must be providedjor the
 least costly alternative that eliminates
 the significant lowering of water quality.
 Cost information must also be provided
 for the treatment system: that would be
 required to meet the revised (increased)
 limits. The costs information developed
 for the two scenarios must be
 comparable. That is,  the assumptions
 used in one scenario (e.g., depreciation
 factor, useful life, constant dollars) niust
 be consistent with those used in the
 other. Furthermore, the capital cost '
 information should incorporate the
 capital cost of the existing treatment
 facility if it will be utilized in the
 treatment train to meet the revised
 limits or to eliminate the need to  '
 significantly lower water quality,.rather
 than only the incremental costs of
 i additional treatment, or alternative or
 enhanced treatment In addition, the
 costs of the prudent and feasible
 pollution prevention techniques are not
 included in the costs of alternative, or
 enhanced treatment, but rather factor  '
 into the base costs against which the
 cost of alternative or enhanced   . ..
 treatment is. compared.
    EPA requests comment on the
 benchmark costs used in the proposed
 analysis. In the approach described
 above, the entire capital expenditures
 over the life of a facility would be used.
 This could be argued to have the effect
 of "punishing" an entity, that had spent
 large amounts on a treatment system,,in
, the past EPA is particularly interested

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Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993 / Proposed Rules
 in whether commenters believe that it is
 more appropriate to use only a portion
 of the total capital costs of a treatment
 system {e.g., the capital expenditures
 •'•juring the last permit term, or the
 jepital expenditures that will be
 necessary to comply with any new
 limits that will derive from other parts
 of the proposed Guidance) in such an
 analysis.
   The proposed Guidance requires that
 the total costs to eliminate the
 significant lowering of water quality be
 compared to the total costs to comply
 with the requested revised permit
 limits, If the  ratio of the costs is less
 than or equal to 1.1 to one, i.e., if up to
 a 10 percent  increase in the cost of
 treatment over what will otherwise be
 required will eliminate the significant
 lowering of water quality, then the
.entity will be expected to utilize the
 additional treatment to prevent the
 significant lowering of water quality.
 The control document issued to the
 entity will not allow an increase of mass
 loading limits, or in the rate of mass
 loading of a BCC. In such cases, since
 the action no longer necessitates the
 significant lowering of water quality, the
 entity no longer needs to provide
 information to show that important
 social or economic development is
supported. If, however, the additional
 10 percent expenditure for alternative or
enhanced treatment will not eliminate
tha significant lowering of water quality,
the entity must provide social or
economic development information to
      k emphasizes that the Alternative
or Enhanced Treatment test establishes
a mandatory expenditure provision
which identifies the minimum that will
bo expected of an entity seeking to
significantly lower water quality and the
condition under which it is effective.
This proposed Guidance reflects the
priority of EPA and the Steering
Committee to protect and maintain the
 §uality of the water in the Great Lakes
 ystem. It establishes a minimum level
of expenditures that must be made on
treatment if it prevents the significant
lowering of water quality. It does not
mean that the significant lowering of
water quality will automatically be
approved if that minimum  level of
expenditure does not prevent the
tignificant lowering of water quality.
  The mandatory minimum expenditure
established by this provision reflects a
policy position of EPA and the GLWQI
Steering Committee regarding the value
of maintaining and protecting water
quality in tha Great Lakes System.
Whila it reflects the value attached to
tho Great Lakes, it does not represent a
                      formal cost/benefit analysis by EPA or
                      the GLWQI Steering Committee. The
                      GLWQI Steering Committee was
                      particularly concerned that a numeric -
                      minimum guideline be established for
                      this test to promote consistent decision
                      making among the Great Lakes States
                      and Tribes. EPA requests comment on
                      the ratio that is proposed to establish
                      this minimum cost requirement,
                      whether it is set at the appropriate level,
                      and whether a single ratio should be
                      identified or various ratios depending
                      on tie entity (public or private).
                      Comnasaters are encouraged to provide
                      specific examples of alternative
                      provisions that EPA might consider and
                      are referred to another set of tests
                      described later in this preamble as a
                      possible alternative for which EPA is
                      also requesting comment. EPA also
                      solicits comment on whether the
                      proposed Guidance should rely on a
                      cost/benefit analysis to establish the
                      appropriate ratio, or whether the .
                      proposed Guidance should propose the
                      use of cost/benefit analyses on a case-
                      by-case basis to determine mandatory
                      expenditures on alternative or enhanced
                      treatment to prevent the significant
                      lowering of water quality.
                       Finally, EPA requests comment on an
                      alternative that would compare the
                      control costs (per pound of toxic
                      equivalents) of alternative or enhanced
                      treatment techniques with a benchmark
                      estimate of control costs—that is,    '•
                      evaluate the cost effectiveness of these
                      enhanced treatment alternatives. EPA
                      might use as a benchmark the control
                      cost estimates for comparable source
                      categories developed under the effluent
                      guidelines program or the control cost
                      estimates EPA is developing as a part of
                      this rulemaking. Thus, if the cost of     *
                      control (per pound of toxic equivalent)
                      for an identified enhanced treatment
                      technique were no more than the
                      benchmark control cost (per pound of
                      toxic equivalent), this treatment
                      technique would be considered to be
                      available and this treatment level would
                      be expected to be adopted as a part of
                      the antidegradation demonstration.
                      Otherwise the enhanced treatment
                      would be considered unavailable,
                       EPA considered the following text for
                      inclusion in the rule in place of that
                      currently found in the last two
                      sentences of proposed section in.B of
                     appendix E to part 132:
                       The evaluation shall compare the control
                     costs (per pound of toxic equivalent) of such
                     alternative or enhanced treatment with the
                     benchmark control cost estimates for source
                     categories. (See control cost estimates set out .
                     in Table X (table would be developed for
                     inclusion in rule].) If the control cost (per
                     pound of toxic equivalent) is no greater than
 the benchmark control cost, the entity shall
 not be required to provide the information
 specified in section ni,D,
 A similar conforming change would also
 be made to section IV.A.2 of appendix
 E of the proposed rule.
   An important advantage of this
 approach would be that it combines the
 cost of the enhanced treatment
 techniques with a measure of its
 effectiveness. EPA believes that,,in
 considering effectiveness as well as cost,
 this may represent an improvement over
 the proposed approach. The proposed
 approach establishes an arbitrary
 requirement that future costs  of an  •
 enhanced treatment technique should
 not exceed 1.1 times the past  sunk cost
 of existing treatment controls, and
 requires the enhanced treatment only if
 it is completely effective at eliminating
 the increased loading of pollutants (i.e.,
 100 percent effective). The 1.1 to one
 ratio may be too low for very large
 reductions in loadings and too high for
 very small reductions in loadings.
   EPA requests comments on the
 alternative cost-effectiveness approach.
 In particular, EPA is interested in
 comments on the use of a benchmark
 control cost based on1 unit cost estimates
 developed for source categories as a part
 of this rulemaking ($1.30 to $10.40 per
 toxic pound equivalent). Alternatively,
 the benchmark could be based on the
 incremental cost estimates developed as
 a part of EPA's effluent guidelines for .
 individual source categories ($1 to $500
 per toxic pound equivalent for a
 wastestream). EPA also requests
 comments on the appropriate ratio to
 use in comparing the costs of an
 enhanced treatment technique with
 baseline control costs. The above
 discussion assumes a ratio .of one-to-one
 (i.e., the enhanced treatment cost is no
 more than the baseline cost, per toxic
 pound equivalent), but EPA is interested
 in whether commenters feel the ratio
 should be greater, for example 1.3 to
 one, which would result in enhanced
 treatment being required if it costs no ,
 more than 1.3 times the baseline cost of
 control (per pound of toxic equivalent).
  This provision does not constrain the '
Director from.requiring more costly
treatment to eliminate the significant
lowering of water quality, nor  does it
prevent the Director from requiring that
the alternative or enhanced treatment be,.
implemented in cases where it does not
fully eliminate the need to significantly
lower water quality. However, such  "
decisions are  the best professional
judgment of the Director, and are not
dictated by this proposed Guidance.
  Furthermore, this provision  must not
be construed to have any bearing on the
ability of EPA or the States or Tribes to

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               'Federal Register / Vol. 58, No. 72 I Friday, April 16, 1993 /Proposed Rules
                                                                     20911
 seek appropriate relief for the violation
 of NPDES permit limitations or. other
 enforceable requirements, up to and
 including the maximum amounts
 available under the applicable-statute.
 This provision is relevant only in the
• permitting process for the purposes of
 antidegradation decisions. It does not
 apply in the compliance context. The
 cost of complying with the terms and
 conditions of a permit does not excuse
 non-compliance. The lowering of water
 quality is never allowed when it would
 cause water quality standards to be
 exceeded. In the enforcement context,
 EPA conducts aii "ability to pay"
 analysis which is a complex calculation
 of the economic impact of compliance
 and payment of civil penalties on lie
 members of the regulated community.
 "Affordability", as it might be
 considered in the context of an
 antidegradation decision, is not
 considered in either a penalty analysis
 or an ability to pay calculation. In the ,
 penalty; context, aii ability to pay   ,
 calculation is, not a determination of
 affordability; penalties are a deterrent
, and are not designed to be affordable as
 a cost of doing business. Rather, in
 considering ability to pay, EPA
 considers a violator's inability to
 continue in business after achieving
 compliance and paying a civil penalty.
 Compliance with the law is the  .
 minimum requirehient in the
 enforcement context; EPA requests   •
 comment on whether the proposed
 Guidance is sufficiently clear on these
 p'pints or if additional detail is
 warranted.
   EPA also solicits comments on
 whether the.alternative or enhanced
 treatment analysis should include, in
 addition to such cost considerations*
 consideration of relative energy.
 consumption, air emissions, and other
 n on-water quality impacts.    •
 5. Social or Economic Development  ,
 Demonstration                 . ' •.
   Section ffl.D of appendix E of the
 proposed Guidance defines the
 requirements for a demonstration thai
 the necessary significant lowering of
 water quality supports important social
 or economic development in the area in
 which the waters are located. To have
 reached this point in the process, the
 Director  would have been given
 information on the ability of the entity
 to prevent the  significant lowering of
 water quality and would have
 determined that information showed
 that the significant lowering of water
 . quality could not be prevented by the
 application of prudent anil feasible :
 pollution prev-'ntuHvalternativesiin
 , combination wi ;b altemau ve or • ;. . T, .
 enhanced treatment that is available
 within a defined cost range. Then, the
 social or economic development
 demonstration is conducted to show
 how the development is important to  ,
 the community in the area in which the  "
 waters are located in, terms of
 employment, financial, or social      .
 services contributions.
   Defining the area in which the waters
 are located is a case-by-case
 determination by the Director that may
 consider the pollutants involved in
 addition .to the location of the discharge.
 The benefits of a development, which
 would cause it to be considered
 important in an  antidegradation.
 decision, should be those realized
 within the area in which the waters are
 located, as opposed to outside of the
' area in which the waters are located.
 EPA requests comments on how broadly
 the area in which the waters are located
 should be defined. For example, should
 the area be limited to the close
 proximity of a discharge, the entire
 Great Lakes System, or some
 intermediate/and should the decision
 depend on the type of pollutant
 involved?                •
   The analyses used by the regulatory
 agency under this provision measure the
 amount of social and economic gain, or
 loss prevented, in the area in which
 water quality is  proposed to be
 significantly lowered and assess the
 environmental effects due to the action
 proposed. Information on the following
 areas of social or economic development
 resulting from the action that results in
 the significant lowering of water quality',
 are to be provided by the entity
 proposing the actionrincrease in
 number of jobs;  increase in personal
 income and/or wages; reduction in
 unemployment  rate or social service
 expenses; increase in tax revenues; and
 provision of necessary Social services. \
 Each of these should be examined in
 terms of both the absolute size arid the
 relative size of the change.
   In evaluating  the changes in any of
 these five types  of factors, as well as the
 environmental effects, logically three
 references should be established: the
 baseline situation, the net impact, and  :
 other possible developments.
   a. Baseline Situation. Once the area
 has been defined, its baseline condition ,
, should be evaluated in terms of its
 unemployment  rates, percentage of the
 population living on incomes below the
 -poverty tline, percent of population that
 are elderly, and average household
 Income compared to state or national
 averages and any other information
 requested by the Director. Additional
 , jobs and/or lax  revenues are particularly
important to economically-depressed   :
areas.                        >.•'.•
  b. Net Positive Impact. The net impact
is relevant in measuring the importance
of the development. It is determined by
correcting the amount of benefits to
account for any adverse impacts that'
result from the development, such as
the loss, of tourism income if the
lowering of water quality reduces the
recreational Opportunities, or the
increase hi operating costs of other
facilities that use the water and any
other information requested by the    ,
Director.          * •
  c. Other Developments. In
determining if a particular development
is important, the Director should
consider whether other developments of
comparable contribution will, occur in
place of this particular one.         -
  The proposed Guidance provides no
numeric benchmarks against which
social and economic developments are
measured to determine if they are
important. Rather, provided that the
developments fall into one of the above
categories, which EPA and the Steering
Committee agree are inherent
benchmarks of importance, the final ;'.
decision on whether they justify the
significant lowering of water quality is
left to the discretion of the Director,
' taking into account the specific
characteristics of the pollutants
involved, the affected community, and
the comments of the public. It is in the
context of making this decision that the
Director may require additional controls
beyond those mandated by the pollution
prevention alternatives and alternative
or enhanced treatment analyses,, to
restrict or prevent the lowering of water
quality.
  EPA encourages comment on this
element of the proposed Guidance, and, •-
in particular, on whether it provides
sufficient detail to assist the Great Lakes
States and Tribes in making consistent
decisions. '
6. Special Remedial Action Provision
  Section in.E of appendix E of the
proposed Guidance provides a special
antidegradation provision for remedial  ,.
actions that are not otherwise exempted
from the definition of significant  ,
low.ering of water qualityv Remedial
actions subject to this provision would
include those implemented pursuant to
State or Federal authorities, such as the
Resource Conservation and Recovery
Act (RCRA) or CERCLA, with the
purpose >of cleaning up, environmental
contamination. Such actions do not lend
themselves to the evaluations discussed
above, involving alternative or       ;
enhanced treatment or social or
economic development. Accordingly,   >

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 20912
Federal Register / VoL 58, .No. 72  / Friday,  April 16, 1993  /  Proposed Rules
 EPA believes that an alternative test
 should be used to establish, that a
 significant lowering of water quality is
 necessary to accommodate important
 sodal or economic development Such
 an alternative is established by this
 provision.
   Under section HLE of appendix E of
 tho proposed Guidance, entities
 proposing remedial actions submit
 information to the Director that
 demonstrates that the action utilizes the
 most cost effective pollution prevention
 and treatment techniques available, and
 minimizes the necessary lowering of
 water quality, in lieu of the information
 required by sections IH.B through D of
 appendix E of the Antidegradation
 Demonstration portion of the proposed
 Guidance (covering alternative or
 enhanced treatment analysis, Lake
 Superior special provision for
 Outstanding International Resource
 Waters, and important social or
 economic development demonstration).
 Tho decision on what constitutes the
 most cost effective pollution prevention
 and treatment technique's available and
 whether the lowering of water quality is
 minimized through the implementation
 of such techniques Is left for the
 Director to make on a caso-by-case basis
 using best professional judgement.
   EPA believes that such remedial
 actions may be generally considered to
 be In tho public interest, because they
 are implemented to protect public
 health and welfare and the
 environment. Consequently, it would be
 redundant to require a showing that a
 remedial action is critical for important
 social or economic development. EPA
 welcomes comment on this position and
 on tha requirements of this provision, in
 general.
 7. Issues

   a. OiAer Options Considered for
 Determining if Significant Lowering of
 Water Quality is Necessary. EPA
 boUaves that ths proposed prudent and
 feasible pollution prevention and
 alternative or enhanced treatment
 techniques demonstrations, as described
 above, are the most appropriate and
 functional options of those considered.
 However, several other approaches were
 considered during the development of
 tho Great Lakes Antidegradation
 Guidance. One other approach
 considered at length focussod on
 explicitly defined economic tests as a
 measure of whether the significant
 lowering of water quality is necessary.
This type of "afforoability" approach is
 discussed below, with an emphasis on
how it differs from the proposed
approach.
                        The affbrdability approaches are
                      typified in that they define benchmark
                      criteria based on specific economic
                      measures, to be used in determining if
                      the significant lowering of water quality
                     •is allowable. The affordability approach
                      considered during the Work Group
                      deliberations provided a criterion, based
                      on the cost of a facility expansion or
                      new development, to define the
                      mandatory costs to be expended on
                      pollution control to prevent or reduce
                      significant lowering of water quality. In
                      addition, the affordability approach
                      defined a second benchmark criterion
                      based on the financial health of a
                      facility or municipality that would be
                      used to determine if additional
                      pollution control expenditures, beyond
                      those identified as mandatory, were
                      affordable. Such affordable
                      expenditures, and the improvements in
                      discharge quality associated with them,
                      would be required by the Director.
                      Should such expenditures eliminate the
                      significant lowering of water quality, the
                      lowering would not be considered
                      necessary, and would not be approved.
                      A representative example of the ,
                      affordability approach would contain
                      the following elements.
                       First, the affordability approach
                      would require that the entity submit
                      information on pollution prevention
                      alternatives end-treatment techniques
                     that are available to the entity and
                     would eliminate or reduce the
                     significant lowering of water quality.
                     The information submitted would
                     include the cost of such measures and
                     their effectiveness in removing the
                     pollutants associated with the proposed
                     significant lowering of water quality,
                     along with specific information on the
                     financial health of the entity and the
                     cost of the expansion or development
                     that was proposed to significantly lower
                     water quality.
                       The Director would then conduct a
                     two-part analysis of this information.
                     First, the information would be used to
                     identify mandatory control
                     expenditures, i.e., identify a specific
                     dollar amount that must be spent by the
                     entity to reduce or eliminate the
                     significant lowering of water quality.
                     EPA considered defining the mandatory
                     expenditure amount in terms of a
                     specific ratio between the annualized
                     pollution control cost (capital and "
                     operation and maintenance costs) and
                     the total capital cost of the expansion or
                     development that would be responsible
                     for the significant lowering of water
                     quality. The analysis would then
                     identify alternatives that are available
                     within the defined cost range and the
                     extent to which the significant lowering
                     of water quality will be reduced by each
 alternative. The Director would be
 required to direct the entity to
 implement the most effective alternative
 by establishing control requirements,
 such as NiDES permit limits, at the
 pollutant mass loading rate achieved by
 the control .alternative. If any alternative
 was completely effective at preventing
 the significant lowering of water quality,
 then the existing control requirements
 would be maintained or new
 requirements established to prevent the
 significant lowering of water quality,
 i.e., at existing mass loading rates,
   If the mandatory pollution control
 expenditures did not eliminate the
 significant lowering of water quality, a
 second analysis of the submitted
 information would be conducted to
 identify any additional amount that the
 entity could afford to spend on
 pollution controls, in addition to the
 mandatory control expenditures. EPA
 considered defining the affordable
 amount in terms of a specific ratio
 between the annualized pollution
 control cost and the annual revenues for
 the entire establishment for private
 entities,                              ;
   Similarly, EPA considered a factor
 based on the household burden to
 define affordable expenditures for
 public entities. The analysis would
 identify the controls that are available
 for that affordable amount and the
 extent to which each would lessen the
 significant lowering of water quality.
 The entity would be required to
 undertake additional expenditures
 within the defined affordable cost range.
 If significant lowering of water quality
 was eliminated within this range, then
 control requirements would be
 established to maintain water quality;
 otherwise, control requirements would
 be established that reflect the most
 effective of the alternatives available
 within the defined affordable cost range.
  The key differences between the
 proposed approach and the affordability
 approach discussed above are as
 follows;                      .
  i. Unlike the proposed approach, the
 alternative pollution prevention and
 alternatives analysis in the affordability
 approach has no reference to prudent
 and feasible as a criterion for the
 Director's decision, nor is this analysis
 limited to pollution prevention
 alternatives: it also requires information
 at this stage, on treatment alternatives. In
the affordability approach, this step is
simply a broad information gathering
requirement.           '
  ii. The mandatory pollution control
expenditures part of the affordability
approach is similar to the alternative or
enhanced treatment provision in the
proposed Guidance in that they both

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                Federal Register / Vol. 58, No. 72 / Friday, April' 16, 1993 / Proposed Rules
                                                                     20913
establish mandatory expenditure
requirements, but they differ in several
significant respects. First, the
affordability approach would evaluate
dltypes of control alternatives,
including treatment and pollution
prevention, whereas the parallel
provision in the proposed approach
would only evaluate treatment
alternatives. Second, the cost ratios used
by the two tests are fundamentally
different. The affordability approach
would have established a cost figure
based on the size of the expansion or
development that is causing the
significant lowering of water quality,
whereas the proposed approach sets a
cost figure based on the treatment
expenditures to meet minimum state
and federal discharge requirements.
Third, the affordability approach would
have mandated the expenditure of the
identified amount regardless of the
effectiveness of the alternatives. That is,
the most effective alternative available
at the identified cost would have been
required to be implemented, even if it
would not have completely eliminated
the significant lowering of water quality,
but instead only reduced the extent to
which water quality was significantly
lowered. In contrast, the proposed
approach mandates the implementation
of alternative or  enhanced treatment  "  .
techniques only when they are effective
at eliminating the significant lowering
of water quality.'As discussed earlier,
the Director may require expenditures
that are not mandated by this provision
in the proposed  Guidance, but does so
on a case-by-case basis. EPA requests
comment on whether or not it is
appropriate to require facilities to make
expenditures of a threshold amount
even if the expenditure does not fully
eliminate the lowering of water quality.
  iii. The additional affordable.
pollution control expenditures analysis
in the affordability approach, would
require that information be provided to
the Director to be used to identify any
pollution control options, beyond those
identified as mandatory, that  must be  ,
required of the entity, because they are
"affordable". It would lay out a cost   ;
formula to be used to define how much
is affordable. In  contrast, the proposed
Guidance leaves such decisions     . •   .
regarding affordability to the  discretion
of the Director. Presumably, a
component of the prudent and feasible
pollution prevention alternatives  ,
decision will involve an assessment of
affordability that will look at  the ability
of the entity to pay for the alternatives.
Similarly; the final decision on controls
that might be  required when there are
no identified mandatory alternative or
enhanced treatment techniques will
likely involve an affordability analysis
component. However, the proposed  .
Guidance leaves the use of affordability
analyses and the criteria for determining
what is affordable to the Director's
discretion.
  Various models could be constructed
to determine "affordability" in the
context of either approach. For instance,
in the enforcement context, EPA utilizes
models to determine a violator's
inability to continue in business after
achieving compliance and paying a civil
penalty. For example, one of these
models, "ABEL", assists in evaluating-
the financial health of for-profit entities.
(In the context of an enforcement
decision, EPA and the States consider
many other factors in addition to the
results of these models. Some of these
other factors include the magnitude of
the violation, the degree of
environmental damage, the entity's  :
recalcitrance, and the extent of the
entity's cooperation.)
  Based primarily on a determination of
solvency, such models might provide a
'partial basis for ah affordability model  -
suitable for making antidegradatibn
decisions. EPA does not suggest that
such models, in and of themselves,
provide results sufficient for .making
antidegradation decisions. These tools,
however, can identify entities that might
have financial difficulty funding
additional  controls. Additional financial
analyses must complement the model
results to arrive at a satisfactory
conclusion. EPA requests comments
about the suitability of these or other .
relevant models as screening devices to
determine  which entities might require
more in-depth analysis.
  In addition, as mentioned above,
some regulatory agencies may already
employ various methods of determining
"affordability" in the context of their
regulatory  activities. EPA requests •    .
comment on the experience of
regulatory  agencies hi applying these
tests, including a detailed description of
the context in which they are employed
and the agency resources necessary to
carry them out.
  Several concerns prompted EPA to
propose the approach in the proposed
Guidance instead of an affordability
approach.  These concerns are discussed
below, along with requests for comment
on specific related issues.
  The first issue is the difference in the
degree of flexibility granted to the
Director. The proposed approach
provides the Director much discretion,
in identifying what other expenditures
should be  required in the event that the
mandatory expenditures do not prevent
the significant lowering of water quality.
The proposed approach focusses on  >
controls that result from prudent and
feasible pollution prevention
. alternatives, but allows for a variety of
; additional considerations in the final
decision.
  The affordability approach would
have, provided very specific criteria for
determining which costs are affordable
and, therefore, must be implemented
The affordability approach was
intended to represent an analytically
simple and straightforward'procedure
for evaluating whether the lowering of
water quality is necessary. However,
with each of the simplifying steps
involved, some degree of accuracy was
lost. Thus, the procedures required
qualifications, and do not take many
site-specific factors into account.
  EPA is concerned that, in light of the
above qualifications, the benefits in
consistency achieved by the specificity
. of an affordability approach are
outweighed by the constraints placed on
the Director's ability to exercise best
professional judgment on a case-by-case
basis. EPA believes that this is a
significant disadvantage of the
affordability, approach and welcomes
comments on the use of specific
affordability criteria.
  A second issue which led EPA to
propose the approach outlined in the
proposed Guidance rather than an ,
affordability approach involved the
States' perceptions of the level of
financial and economic analysis that it
required. The Technical Work Group
and Steering Committee representatives
 frequently voiced concerns that the
 financial and economic analysis
required exceeded the scope of their
normal regulatory functions (which
 generally focus on Clean Water Act
 programs). This potentially resource
 intensive analysis could place
 considerable strain on already limited
 resources. EPA acknowledges this
 problem and believes that the proposed
 approach provides a workable solution.
 However, EPA requests comments on
 the experience other regulatory agencies
 may have had in the application of
 affordability measures and how they    :
 might be most effectively and efficiently
 utilized.        •
   EPA also seeks comment on the     =
 potential use of a strict benefit/cost
 analysis for making antidegradation
 decisions. Such an analysis would not
 include a mandatory expenditure oh
• pollution prevention measures. In the
 proposed approach in the proposed
 Guidance, regulatory agencies already
 have to determine the economic and
 social benefits, of the new or expanded .-
 activity. They must then, compare these
 benefits with the economic and social

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Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
 costs of water quality degradation.
 Social costs and benefits include the
 externalities associated with a private
 transaction. Social costs include such
 factors as loss of aesthetics, the
 destruction of habitats, the loss of a cold
 water source of a game fish, and
 incroasod risks to human health. Social
 benefits include a community's
 increased tax base that allows it to
 construct new parks, rehabilitate slums,
 and build recreation facilities.
   In contrast to the proposed approach,
 under a strict benefit/cost analysis
 approach, decisions would rely entirely
 on economic efficiency criteria. They
 would not consider the financial
 condition of the entity. For such an
 approach, the proposed Guidance
 would have included a method for
 determining and listing social benefits
 and social costs. The proposed
 Guidance would have also
 distinguished between economic
 benefits and transfer payments. A strict
 benofit/cost analysis does not include
 the latter.
   EPA did not propose a strict benefit/
 cost analysis approach because it is
 concerned that the approach would fail
 to take into consideration whether a
 significant lowering of water quality is
 necessary* As discussed above under
 "Background/Rationale", the
 determination that a significant
 lowering of water quality is necessary is
 ono of the two mandatory
 demonstrations under the existing
 federal antidegradation policy. EPA
 does not believe that there is any
 compelling reason under the GLWQA or
 the CPA to deviate from this
 requirement of existing Federal
 guidance. EPA considered the use of
 cost/benefit analyses in a previous water
 quality standards rulemaking and, in
 part based on public comment, did not
 include such analyses in the final rule.
 The reader is  referred to the preamble
 discussion in the November 8,1983,
 Federal Register notice (49 FR 51400)
 for a more detailed discussion.
 Nonetheless, EPA requests comments on
 the appropriateness of a cost/benefit test
 in antidegradation decision-making.
  b. Economic Recovery. Concerns were
 expressed during deliberations on the
 proposed Guidance that it is not
 sufficiently sensitive to firms that have
beon forced to reduce production as a
result of an economic downturn or
 recession, and later want to increase
 production to previous levels. In
 particular, the Great Lakes region has
 own adversely affected in recent years,
with major declines in production in
industrial sectors such as iron and steel
and automobiles and associated
supporting industries.
                        The proposed Guidance tries to strike
                      a balance between the need to protect
                      and maintain high quality water and the
                      need to accommodate growth, or in this
                      case promote economic recovery. The ,
                      proposed Guidance provides the
                      regulatory agency with some flexibility
                      that cpuld be brought into the
                      antidegradation decision involving a
                      recovering firm. For example, in the
                      establishment of the EEQ baseline
                      estimate, the proposed Guidance
                      provides the regulatory agency
                      flexibility to account for recent
                      economic downturns. Section D.2 of
                      this preamble discusses using
                      information from the preceding permit
                      term that are representative of typical
                      operations to determine the effluent
                      quality. In general, all effluent quality
                      data collected over the previous control
                      document term (e.g., past five years)  that
                      are representative of the typical
                      operation of the pollutant source should
                      be utilized. However, the regulatory
                      agency could account for any recent
                      downturn in production by setting the
                      effluent quality baseline to reflect
                      conditions prior to the downturn, if
                      information was available to suggest
                      that it was likely to be temporary.
                      Similar flexibility is provided the i
                      regulatory agency in the establishment
                      of permit limits that are based on
                      production levels. In addition, in the
                      evaluation of social and economic
                      importance, the regulatory agency could
                      provide special consideration for the
                      recovering firm.
                       EPA requests comment on whether
                      the flexibility inherent in the proposed
                      Guidance is sufficient to make it
                      sensitive to the unique situation and
                      needs of the recovering firm. EPA is also
                      interested in comments on whether the
                      proposed Guidance should make special
                      provisions  for recovering  firms and
                      what form the provisions  should take.
                       c. Best Available Technology. Another
                      issue that was raised regarding the
                      Antidegradation Demonstration
                      involves the ca,se-by-case  analysis of
                      available pollution control alternatives
                      and development of EEQ restrictions.
                      Specifically, concerns were expressed
                      that, with the EEQ, pollution
                      prevention, and alternative or enhanced
                      treatment analysis requirements, EPA
                      was using antidegradation to require
                      case-by-case development of best
                      available technology conditions in
                      NPDES permits, in lieu of the
                      promulgation and subsequent re-..
                      evaluation of industry-wide guidelines
                      pursuant to section 304 of the Clean
                      Water Act.
                       EPA has developed effluent
                      guidelines for 34 primary  industrial
                      point source discharger categories and
 numerous other secondary industrial
 discharger categories. Such guidelines
 identify the effluent limitations
 (technology-based effluent limitations)
 that shall be established in NPDES
• permits issued to point source
 dischargers in covered industrial
 categories to ensure that such
 dischargers satisfy the minimum
 pollution control technology
 requirements of the Clean Water Act.
 Among the minimum pollution control
 technology categories identified in the
 Clean Water Act are best practicable
 control .technology currently available,
 best available technology economically
 achievable, best conventional pollutant
 control technology, and new source
 performance standards.
   EPA believes  the concerns expressed
 above are misplaced.  The evaluation of
 control alternatives and EEQ would be
 required regardless of the quality of the
 effluent guidelines upon which the
 permits were based.
   Antidegradation standards are a
 component of water quality standards.
 EPA and States  routinely develop
 effluent limitations that are more
 stringent than technology-based
 limitations when necessary to protect  ~
 water quality  standards (water quality-
 based effluent limitations). Specifically,
 the Clean Water Act requires limitations
 as necessary to meet state water quality
.standards and EPA has developed a
 sizeable body of regulation and
 guidance to implement this requirement
 (e.g., 40 CFR 122.44(d) and the
 "Technical Support Document for Water
 Quality-based Toxics  Control"). It is
 common practice in water quality-based
 permitting to require effluent limitations
 that are more stringent than National
 technology-based limitations as
 necessary to reflect site-specific
 conditions. EPA believes that
 antidegradation-based EEQ or
 alternative pollution prevention/control
 technology requirements fall within this
 context. Antidegradation requirements
 such as those proposed for this    ..
 proposed Guidance to protect and'
 maintain water quality would be
 necessary regardless of how stringent
 the National effluent guidelines were
 made. EPA welcomes comment on this
 issue.
   d. Mandatory  Expenditures for
Alternative or Enhanced Treatment
 Techniques. As discussed above in
 detail, 4he proposed Guidance
establishes the requirement that
 alternative or enhanced treatment
techniques be  implemented when such
techniques prevent the need to
significantly lower water quality and are
available within a specified cost range.
This provision reflects the priority of

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                 Federal Register /Vol. 58, No. 72 '/.Friday,  April 16, 1993 / Proposed Rules      ,   20915
 the Great Lakes States to create a   .V. •
' mandatory expenditure policy to protect
 and maintain water quality, Previous
-discussion in'this preamble addressed .
 the situation in which an entity can
 afford more than the additional 10  '
 percent for pollution control and
 treatment to prevent the significant
 lowering of water quality. As that
 discussion indicated, the
 Antidegradatipn Decision guidance
 provides the Director ample latitude to
 require such additional expenditures, at
 his or her discretion, to prevent or
 reduce the significant lowering of water
 quality.                     ,
   The proposed Guidance, however,
 provides no such latitude to the Director-
 to circumvent the mandatory
 expenditure requirements when the
 results of the analysis .required under
 section IH.B of appendix E of the
 proposed Guidance show that
 alternative or enhanced treatment exists
 that is available within the defined cost
 range and prevents the significant
 lowering of water Duality. The
 Antidegradation Decision guidance does
 n.ot provide the Director with the ability
 to determine, on a case,-by-case basis,
 that the amount denneii as the       ;
 .mandatory expenditure is. not affordable
 and, therefore, should be waived.
 During GLWQI Work Group
 deliberations, in considering this
 position for proposal, the Steering
 Committee recognized that there may he
 occasions when this requirement
 prevents entities from undertaking
- certain actions, which, as proposed,
 would significantly lower water quality,
 because they cannot afford the   '
 mandatory expenditure for .treatment
 that would prevent the significant
  lowering of water quality. In the  '      ,
  judgment of the Steering Committee,
  this concern is more than offset by the
  benefits of establishing a minimum ,
  expenditure policy to protect and
  maintain the quality of the Great Lakes
 • System. EPA agrees with this position.
    EPA invites comment on the policy
  position established by the proposed
, mandatory expenditure requirements.
  EPA also requests comments on the
  following alternative considerations
  regarding mandatory expenditures. EPA
  solicits comment  on whether it is
  appropriate  to require the mandatory
  expenditures set forth in section DI.B of
  appendix E only when the expenditure
  prevents the significant lowering of
  water quality, of if it would be
  appropriate for such an expenditure to
 r be mandatory if it reduced the extent to
  which water quality was significantly
  lowered. In  the case of the latter, EPA
• also solicits comments on the extent to
  which the expenditure must reduce the
 significant loweringof water quality
 before it becomes a mandatory
 expenditure. Finally, EPA seeks  .
 comment on whether specific guidance
 should be included to assist the Director
 in. making case-by-case decisions    ,
 regarding expenditures greater than the
 proposed mandatory amount.
   e. Antidegradation Decision
 Presumption Against the Significant
 Lowering of Water Quality, Sections
 IV. A.5 and IV.B.2 of appendix E of the
 proposed Great Lakes antidegradation
 guidance create an opportunity for the
 Director to defer the analysis of the
 social or economic developments and
 environmental effects associated with
 an action that significantly lowers water
 quality until after opportunity for public
 comment. Section IV.B.2 of appendix E
 of the proposed Guidance provides that:
,  If the Director chooses to defer the review
 as provided in section IV. A.5 of this
 appendix, then the Director shall tentatively
 determine that the significant lowering of
 water quality is not allowable. The public
 notice shall state that the decision, based on
 a review of the social or economic
 developments and environmental effects
 associated with the .action has been deferred,
 .pending'review of the comments.ieceived
 from the public, and that the tentative
 decision may subsequently be revised.
   This provision reflects a presumption
 against .the significant lowering of water
' quality which is consistent with the
 tone of the proposed Guidance, as a
 • whole. It is viewed as particularly
 important at the stage of the decision
 procedure when the public is asked to
 comment on the merits of a proposed
 action that would significantly lower
 water quality. During, deliberations at ;
 TechnicalWork Group meetings and
 Steering Committee meetings to develop
 this proposed Guidance, several of the
 State representatives expressed concern
 that they needed the input of the public
 before they could do a meaningful   ;
 assessment of the importance of the
 social or economic developments
 associated with a proposed action that
 would significantly lower water quality.
 However, in order to receive such input,
 within the public participation
 processes established for many of the
 existing regulatory programs, it would
 be necessary to propose a tentative
 .decision regarding approval or
  disapproval of the request to  :
  significantly lower water quality to put
  out for public comment. The Steering  ;
  Committee and EPA agreed that it was
  appropriate for the tentative decision
  put forth for public comment to be a
  denial, since, at that point there would
  be insufficient public input to ascertain
  that the social or economic development
 . resulting from the proposed significant
lowering of water quality would be   :   ,
important. To create a new public
comment step outside of the .existing
procedures was an option, but it was
considered too burdensome to the
regulatory agencies to be feasible and a
significant hinderance to timely
decision-making.
  Again, this provision represents the • . - .
choice of the Steering Committee, with
which EPA agrees, to presume that
water quality be maintained and .--.:'
protected unless the public believes that
the social or economic development that
necessitates its significant lowering is
important enough to support. EPA
welcomes comments on this provision
in the proposal, and on the position
established by it.:           • ' •. .

G. Special Antidegradation Provisions
for Lake Superior

1. Background
  As stated earlier in this preamble
; discussion, in September 1991, the    /
States of Michigan, Minnesota, and
Wisconsin/the Province of Ontario, the
government of Canada, and EPA entered
into an agreement entitled "A Bi-   -•'
National Program to Restore and Protect •
the Lake Superior Basin." This
agreement established a "Lake Superior
Zero Discharge Demonstration Program"
. with the stated goal being "To achieve
zer,o discharge and zero emission of
certain designated persistent, .,,':;-.
bioaccumulativetoxic'substances,
 which may degrade the ecosystem .of the
 Lake Superior basin," The agreement
 identified three areas in which the
 parties agreed to undertake actions to
 pursue realization of this.goal, one of
 which, "Special Protection  ,
 Designations", is significant to this
 proposal. Under the.Special Protection
 Designation heading, the Governors of
 the three Great Lakes States of
 Michigan, Minnesota, and Wisconsin
 ("Lake Superior States") commit to
 initiate appropriate State procedures to
 designate all waters of the Lake Superior
 Basin as Outstanding International
• Resource Waters (OIRWs) and certain
 special areas of the Lake Superior Basin
 as Outstanding National Resource
 Waters. The agreement further defines
 the intent and effect of such   -•.-.'.'
 designations:
   Under the OIRW designation, the ..",
 increased discharge of certain
 designated persistent, bioaccumulative
 toxic substances will not be allowed
 without an adequate antidegradation
 demonstration which includes the
 installation of the best technology in
 process and treatment.
    The purpose of this Lake Superior
 :Basin-r-Outstanding National Resource

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 20916
Federal Register  /  Vol.  58,  No. 72 / Friday. April  16,  1993 / Proposed Rules
 Water designation is to prohibit the new
 or increased discharges of certain
 designated persistent, bioaccumulative
 toxic substances by point sources in
 these areas, including respective buffer
 zones and transition areas as defined by
 the States.
   Tha agreement requires that
 procedures to implement each
 designation be incorporated into the
 Great Lakes Water Quality Initiative
 Antidegradation Guidance.
 2. Effect
   This proposed Guidance contains
 several provisions, developed by the
 Lake Superior States and enumerated
 below, to implement the above
 conditions in the agreement. These
 provisions operate as additional
 restrictions, beyond the minimum
 requirements of the National
 antidogradation regulation, as this
 proposed Guidance has adapted it to
 apply to the entire Great Lakes System.
 Consequently, this notice puts these
 special Lake Superior provisions
 forward as State proposals, which EPA
 considers acceptable pursuant to section
 510 of the Clean Water Act. The special
 provisions of this proposed Guidance
 included to implement the Lake
 Superior Special Protection
 Designations are as follows:
  Appendix E, section H.A. Definition
 of Lake Superior bioaccumulative
 substances of immediate concern;
  Appendix E, section n.A. Definition
 of Lake Superior Basin—Outstanding
 National Resource Waters;
  Appendix E, section II.E.1 and E.2.
 Implementation procedures, entitled
 "Special Provisions for Lake Superior"
 that identify the effect of Lake Superior.
 Special Protection Designations;
  Appendix E, section m.
 Antidegradation Demonstration text
 reiterating the actions within the Lake
 Superior Basin, if designated an OIRW,
 that would necessitate a special
 demonstration by the entity proposing
 the action;
  Appendix E, section m.C. Description
 of the special demonstration that must
 be provided by an entity proposing a
 new or increased discharge of Lake
 Superior bioaccumulative substances of
 immediate concern to the Lake Superior
 Basin, if designated an OIRW;
  Appendix E, section IV.A.3.
Antidegradation Decision provision to
 ensure that the Director requires
 installation and utilization of best
 technology in process and treatment by
 entities mat lower water quality as a
result of the new or increased discharge
 of any Lake Superior bioaccumulative
substance of immediate concern into the
                      Lake Superior Basin, if designated an
                      OIRW.
                        EPA notes that the Lake Superior
                      special provisions in the
                      antidegradation guidance are operative
                      only when States designate waters of the
                      Lake Superior basin as either Lake
                      Superior Basin - Outstanding National
                      Resource Waters or OIRWs. The
                      proposed Guidance does not direct or
                      require the Lake Superior States to make.
                      such designations.
                        Several of the above provisions
                      require additional discussion to
                      differentiate them from conditions more
                      broadly applicable to the Great Lakes
                      System and to describe how the special
                      provisions operate within the larger
                      antidegradation framework.
                        a. Relationship to Other
                      Antidegradation Requirements. As
                      indicated above, the special provisions
                      applicable to designated portions of the
                      Lake Superior Basin operate in addition
                      to the antidegradation provisions
                      otherwise applicable. Section HE of
                      appendix E of the proposed Guidance
                      explicitly states this relationship.
                        i. Example. Upon designation of the
                      Lake Superior Basin as an OIRW by the
                      Lake Superior States a proposal by a  '
                      point source to increase the discharge
                      rate of mass loading of BCCs, which also
                      includes certain Lake Superior
                      bioaccumulative substances of
                      immediate concern (BSICs), into an area
                      of the basin that is a high quality water
                      with respect to the pollutants in
                      question would be covered as follows.
                     - The proposal would necessitate an
                      antidegradation demonstration, because
                      it involves an increase in the rate of
                     mass loading of BCCs (pursuant to
                      section II.D.1 of appendix E) and an
                     increased discharge of BSICs from a
                     point source (pursuant to section HE.2
                      of appendix Ej.
                       The demonstration would evaluate,
                     pursuant to section HI.A of appendix E
                     of the proposed Guidance, pollution
                     prevention alternatives available for all
                     the pollutants, BCCs and BSICs. If
                     prudent and feasible pollution
                     prevention alternatives prevent the
                     significant lowering of water quality (or
                     increased discharge in the case of the
                     BSICs), then the entity would not be
                     required to provide any additional
                     antidegradation demonstration
                     information, because the significant
                     lowering of water quality would not be
                     allowable.
                       The second step of the demonstration
                     differs between the BCCs and the BSICs.
                     For BCCs not on the list of BSICs, the
                     demonstration would evaluate
                     alternative or enhanced treatment
                     techniques available to prevent the
                     significant lowering of water quality and
  identify the associated costs as specified
  in section m.B of appendix E of the
  proposed Guidance.,If the costs were
  within the range defined by section ffl.B
  of appendix E of the proposed
  Guidance, no further antidegradation
  demonstration information would be
  required'of the entity regarding the
  BCCs, because the significant lowering
  of water quality would not be allowable.
  For the BSICs, the demonstration would
  identify and evaluate the effectiveness  '
  of the best technology in process and
  treatment. The proposed Guidance
  leaves the determination of what
  constitutes best technology in process
  and treatment to the individual Lake
  Superior States, with the understanding
  that it will always be at least as stringent
  as the alternative or enhanced treatment
  identified for pollutants other than
  BSICs, that the cost of the technologies
  is not a factor in the decision, and that
  in general the requirement is intended
  to force implementation of "state of the
  art" pollution controls.
    In the third step, where the
  application of alternative or enhanced
  treatment techniques available within
  the mandatory cost range does not
  prevent the significant lowering of water
  quality by BCCs or the implementation
  of best technology in process and
  treatment does not prevent the
  increased discharge of BSICs, the entity
  must provide the important social or
  economic development demonstration
  required by section Etl.D.of appendix E
  of the proposed Guidance. This
  information is evaluated in the same
  manner for all pollutants.
   Finally, section IV.A.1 of appendix E
  of the Antidegradation Decision
  instructs the Director to require the
  implementation of prudent and feasible
  pollution prevention alternatives for
  both types of pollutants. The
  information developed in the second
  step is handled in separate provisions in
  the Antidegradation Decision part of the
  proposed Guidance. For the BCCs,
  section IV.A.2 of appendix E of the
  proposed Guidance provides that the
  Director must deny the request to
„ significantly lower water quality if
  alternative or enhanced treatment
  technologies exist, the cost of such
  treatment falls within a defined range
  and its implementation prevents the
  significant lowering of water quality.
  For the BSICs, section IV.A.3 of
  appendix E of the proposed Guidance
  provides that the Director must require
  the installation and utilization of the
.  best technology in process and
  treatment and establish limitations on
  the BSICs accordingly, In section IV.A.4
  of appendix E of the proposed
  Guidance, actions that are not prevented

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                 Federal Register / Vol. 58, No.  72 /, Friday, April 16,  1993  /: Proposed Rules          20917
 from significantly lowering water
 quality (or increasing the discharge of  .
 BSICs) by the decisions in section
 IV.A.-1 through A.3 of appendix E of the
 proposed Guidance are evaluated in    •
 light of the associated social or
 economic developments and  i
 environmental effects and a decision
 proposed regarding the extent to which
 water quality may be significantly
 lowered (or the discharge of BSICs
 increased). Both actions involving BCCs
 and BSICs are subject to this evaluation.
 As discussed in detail elsewhere in this
 preamble, as a result of this evaluation
 the Director may require other controls
 on BCCs on a case-by-case basis _,
 provided they are no less stringent than
 the controls required under section  f
 IV.A.2 of appendix E of the proposed
 Guidance.
   b. Lake Superior Basin—Outstanding
 National Resource Waters. The special
 provisions created for Lake Superior
 define a potential new State
 designation, that of Lake Superior
.Basin—Outstanding National Resource
 Water, and specify the effect of such a
 designation (see sections II.A and n.E.l
 of appendix E of the proposed
 Guidance, respectively). EPA wants to
 clarify that this new designation created
 for Lake Superior is different than the
' Outstanding National Resource Water
 designation defined in section II.A of
 appendix E of the proposed Guidance.
 The terminology for the Lake Superior
 designation was chosen by the Lake
 Superior States to conform as closely as
 possible" to the language in the
 agreement, while still being            .
 distinguishable from the ONRW     ;
 designation defined in the National
 antidegradation. regulation and. used in
 this proposed Guidance. EPA  also notes
 that the creation of the new Lake
 Superior Basin—Outstanding  National
 Resource Water designation does not
 affect the ability of a State to designate
 a portion of the Lake Superior Basin as
 an ONRW (as defined in section II.A. of
 appendix E of the proposed Guidance)
 and that such a designation would have
 the effect specified in section II.C of
 appendix E of the proposed Guidance.
!   c. Lake Superior Bioaccumulative
 Substances of Immediate Concern.  '•'•'
 Section !L A of appendix E of tlae .
 antidegradation guidance identifies the
 substances that are subject to the special
 Lake Superior provisions of the    : -  =
 proposed Guidance. These substances
' were identified in the agreement and are
 .proposed by the Lake Superior States  for
 this proposed Guidance, because they
 are the persistent, bioaccumulative toxic
' pollutants considered to pose  the most
 significant ri$k to the Lake Superior
 Basin. The proposed Guidance provides
that additional substances may be added
by a State in the future, after the
opportunity for public review and
comment. EPA wants to clarify that
designation as a Lake Superior
bioaccumulative substance of
immediate concern has no effect on the
status of such pollutants in Lake
Superior Basin waters not designated'as
Lake Superior Basin—Outstanding
National Resource Waters or OIRWs or
in other waters of the Great Lakes
System.  '-           .-".-".      ,
  EPA invites comment on all aspects of
the special provisions for Lake Superior.
H. Offsets
  During Technical Work Group
deliberations on the GLWQI, ah
approach was evaluated that would
have required, as a^ part of the
antidegradation review, ^consideration of
controls on unregulated pollutant
sources to offset proposed increased
discharges from a regulated source.  The
approach was referred to as "offsets",
and it was intended to provide the
Director with an additional mechanism
to prevent significant lowering of water
quality..     1   .      '    ,        .  -
  The offset approach would have
required that an entity seeking to
significantly lower water quality with
respect to any pollutant, identify other
sources, currently not subject to
regulation, of that pollutant to the water
body in question. The entity would be
required to determine if any such
sources were amenable to control such.
that the reduction in the loading from
the unregulated source would offset the
proposed increase in loading from the
entity. If the opportunity for such offsets
was found and incorporated as an
enforceable requirement of the entity's
control document (e.g., NPDES permit) •
the entity could avoid the additional
antidegradation demonstration
requirements in the Great Lakes
Antidegradation Guidance. That is, the
Director could in such a case determine'
that .water quality was not significantly
lowered. One variation to the general
offset approach considered by the
GLWQI Technical Work Group is
highlighted for comment. The Technical
Work Group considered requiring that
additional removals of BCCs be
mandated under the offset provision in
order for an-action to be relieved of
further antidegradation demonstration
requirements. That is, the entity seeking
to increase its mass loading rate of a
BCC would have been required to find
and control unregulated, uncontrolled
sources of that BCC in an amount
greater than the proposed increase, in
order for the increase to be considered
offset. Several alternative factors were
 considered, ranging up to 1.5,"which
 would have mandated 1.5 times the
 amount of the proposed increased rate
 of pollutant loading be removed from
 currently unregulated, uncontrolled
 sources to achieve an offset.
  EPA is not proposing any offset
 provision in the Great Lakes       ;
 Antidegradation Policy in the Federal
 Register notice. In the GLWQI
 deliberations, EPA and the Great Lakes
 States shared concerns that         •   . •
 implementation of the offset concept is  '
 not yet technically feasible  or legally
 enforceable. That is, although       .
 conceptually possible, it was expected
 to be too difficult to quantitatively
 implement and enforce the  concept of,
 offsets. In particular, the likelihood that
 controls on currently unregulated,    '"'';.'
 uncontrolled sources could be an       '.
 enforceable requirement of  a permit was
 strongly questioned and anticipated to ~ ;
 result in excessive administrative
 burdens. In addition, the  likelihood that
 an entity seeking an increased discharge
 could identify and control an
 unregulated source of contamination   ,,
; was questioned by many Work Group
 members;    .                    :
  .Although the offset concept is not
 being proposed in the Great Lakes     :
 Antidegradatiori Policy, other parts of
 the Great Lakes Water Quality Guidance
 may allow "trading" of pollutant load
 allocations between pollutant sources,
'both point and nonpoint. In particular
 the reader is referred to the  discussion
 of TMDLs in the implementation    '•':
 procedures (see section VULC of this:   :
 preamble). However, any such
 reallocation of pollutant loads to
 pollutant sourc'es might subject them to
 the requirements of this  :
 Antidegradation Policy.
   EPA requests comment on the offset
 approach considered for the Great Lakes
 Antidegradation Policy. EPA also
 solicits comment on any information   ,
 that regulatory agencies may have on
 actual experience using an  offset
 approach to control pollution sources,

 J. Incorporation Into State Water Quality
 Standards.        .
   The Great Lakes Critical Programs Act
 requires the Great Lakes States to adopt
 antidegradation policies for the Great'..
 Lakes System that are consistent with
 the final Great Lakes'Guidance
 published by EPA. The Federal Register
 notice proposes such Guidance. When
 evaluating whether or not the, States
 adopt antidegradation policies that are •
 consistent with the final Great .Lakes  , .-.'-
 Water Quality Initiative Antidegradation
 Policy, EPA will follow the .provisions
 of 40 CFR 132,6, proposed  in the       ;
 proposed Guidance;          ._•.,-.. ;-1

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  20918
Federal Register / Vol. 58, No. 72 /Friday, April 16, 1993  / Proposed Rules
   EPA expects Chat upon finalization of
  the proposed Guidance, the States will
  adopt into their water quality standards
  regulations language identical to or no
  less restrictive than the language set
  forth in the Great Lakes Water Quality
  Initiative Antidegradation Policy
  (appendix E to part 132). Specifically,
  tho States must adopt into their water
  quality standards regulations the
  Antidegradation Standard,
  Antidegradation Implementation
  Procedures, Antidegradation
  Demonstration, and Antidegradation ••
  Decision provisions of the final
  Guidance. EPA believes that these
  provisions collectively represent the
  AnUdegradaUon Policy required by the
  Great Lakes Critical Programs Act. The
  State regulations need not reproduce,
  verbatim, the Great Lakes Guidance.
  However, the antidegradation policy
  adopted into State regulation must
  result in equal protection and
  maintenance of water quality as would
  this proposed Guidance in the same
  situation.
   As indicated in proposed 40 CFR
  132,4(a)(6), the Great Lakes  States are
  not required to adopt the provisions of
  the Antidegradation Policy that provide
  special protection to Lake Superior.
  These provisions are enumerated in 40
  CFR 132,i(a)(6) and discussed in this
  preamble isea  section Vn.G.2.). EPA is
  including these provisions in the
  Antidogradation Policy to provide
  guidance to the Great Lakes States
  signatory to the "Bi-National Program to
'  Restore and Protect the Lake Superior
  Basin." EPA does not intend to
 promulgate the Lake Superior special
 provision of the Antidegradation Policy
  pursuant to proposed 40 CFR 132.5(d) if
 a Great Lakes State fails to do so.
   At several points in this preamble,
 various alternatives are identified to
 accomplish specific requirements set
;  forth in the proposed Guidance (e.g.,
  options for EEQ controls). A State is free
 to implement the requirement using the
 identified alternatives or others that
 may be equally effective. Finally, there
 are a numoer of decisions required by
 the proposed Guidance which allow the
 Stale to exercise flexibility in response
 to situation-specific conditions (e.g., the
 determination  of what constitutes
, "prudent and feasible" pollution
 prevention alternatives). As noted in the
 preamble, EPA is requesting comment
 on whether the proposed Guidance
 provides adequate direction to the
 States for making such decisions.
   A State may  adopt an antidegradation
 policy for the Great Lakes System,
 which is more  stringent than that
spocifiod in the proposed Guidance.
Finally, to the extent that a State can
                      demonstrate that its current water
                      quality standards regulations or statutes
                      contain some of all of the proposed
                      Guidance being proposed here for the
                      Great Lakes System, the State need not
                      reproduce that portion of the proposed
                      Guidance as separate Great Lakes
                      standards.
                          . General Implementation
                      Procedures

                      A. Site-Specific Modifications to Criteria
                        National guidance provided in the
                      "Water Quality Standards Handbook"
                      (1983) (the Handbook) indicates that
                      States may modify generally applicable •
                      State criteria and set site-specific water
                      quality criteria for the protection of
                      aquatic life when: the local water
                      quality parameters such as pH,
                      hardness, temperature, color, etc., alter
                      the biological availability and/or
                      toxicity of a pollutant; and/or the
                      sensitivity of the local aquatic
                      organisms (i.e., those that would live in
                      the water absent human-induced
                      pollution) differs significantly from the
                      species actually tested in developing the
                      criteria. This Handbook is available in
                      the administrative record  for this   .
                      rulemaking. Copies are also available
                      upon written request to the address
                      listed in section XIH of this preamble.
                      State-wide water quality criteria for
                      aquatic life may be unnecessarily
                      stringent or underprotective in a given
                      water body if the physical and chemical
                      characteristics of the water body
                      ameliorate or enhance the biological
                      availability and/or toxicity of a given
                      chemical. In addition, species capable of
                      living at a particular site, if there were
                      no human-induced pollution, may be
                      more or less sensitive than those species
                      represented in the development of the
                      State-wide criteria. Developing site-
                      specific criteria for aquatic life is a way
                      of taking unique conditions of a specific
                      portion of a water body into account so
                      that criteria adequately protect aquatic
                      life from acute and chronic effects.
                      Chapter 4 of the Handbook provides
                      procedures for setting site-specific
                      criteria for aquatic life which may be
                      utilized as a basis for establishing water
                      quality standards. Using those
                      procedures, the resulting chronic or
                      acute aquatic life criteria may be more
                      or less stringent than the otherwise
                      applicable State criteria.
                        There is presently no such specific
                      guidance regarding site-specific „
                      modifications to human health water
                      quality criteria. Additionally, there is
                      presently no National guidance for
                      deriving wildlife water quality criteria
                      or site-specific modifications to wildlife
                      criteria. However, present regulations
  do allow States to modify any criteria to
  reflect site-specific conditions provided
  that the modified criteria are protective
  of designated uses and based on sound
  scientific rationale (40 CFR 131.11). One
  of the issues that States might consider
  in developing site-specific
  modifications to human health criteria,
  for example, is local fish consumption
  rates. (See, generally, memorandum
  from Lajuana S. Wilcher to Regional
  Water Management Division Directors,
  dated January 5,1990, which is
  available in the administrative record
  for this rulemaking.)
    National water quality criteria are
  based upon data from, and assumptions
  specifically applicable to, the entire
  United States. The Great Lakes criteria/
  values proposed in the proposed
  Guidance differ from the National
  criteria in part because they were
  derived using data and assumptions
  relevant to the Great Lakes System. For
  example, certain aquatic life criteria/
  values have been lowered to protect
  commercially or recreationally
  important species within the Great
  Lakes System (e.g., steelhead rainbow
  trout). As another example, BAFs used
  in developing human health, criteria/
 values for the Great Lakes System
  assume a fish lipid content of five
 percent based on Great Lakes-specific
  data instead of the National average
  lipid content of three percent used for
 the derivation of National criteria. The
 purpose of using Great Lakes-specific
  data and assumptions in deriving
 criteria/values is to more accurately
 calculate ambient criteria levels that are
 protective of aquatic life, wildlife and
 humans within, the Great Lakes System.
   Even though the Great Lakes criteria/
 values already reflect Great Lakes-based
 modifications of, the National criteria,
 there may be local areas within the
 Great Lakes System where conditions
 vary sufficiently from the assumptions
 underlying the methodologies for
 deriving Tier I criteria and Tier n values
 to merit the application of more
 narrowly applicable site-specific
 criteria. Procedure 1 of the proposed
 Implementation Procedures specifies
 the circumstances where a State may
 develop site-specific modifications to
 the Great Lakes aquatic life, human
 health and wildlife criteria as well as  .
 bioaccumulation factors. The proposed
 Implementation Procedures allow
 modifications to be made to acute or
 chronic aquatic life criteria/values in a
 manner consistent with Chapter 4 of the
' Handbook, This Handbook only covers
 site-specific water quality criteria for the
 protection of aquatic life. Consistent
 with that guidance, site-specific
 modifications to acute  and chronic

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                 Federal Register 7 Vol. 58', No. 727  Friday,  April 16, 1993 / Proposed Rules.
                                                                     20919
 aquatic life criteria/values for the Great
 Lakes System under the proposed
 Guidance may result in more or less
 stringent aquatic life criteria/values than
 those calculated using the Great Lakes
 aquatic life methodology.
  , The Handbook only sets forth
 procedures for developing site-specific ,
 modifications to aquatic fife criteria
 when such modifications are .       "
 appropriate because either local water
 quality parameters alter the biological"
 availability or tpxicity of a pollutant, or
 the sensitivity of local aquatic         •
 organisms differ significantly, from the
 species actually tested in developing
 criteria. Proposed implementation _
 proqedure 1, however, goes beyond the/
 Handbook by also allowing the Great
 Lakes States and Tribes to deveslop site-
 specific modifications to chronic
 aquatic life criteria/values for the Great
 Lakes System to reflect local physical
 and hydrologic conditions. Specifically,
 the Great Lakes  States and Tribes would
• be allowed to also develop site-specific
 modifications to chronic aquatic life
 criteria/values by showing that either
 hydrologic conditions or physical
 conditions related to the natural features
 of a water body, such as lack of a proper
 substrate, cover, flow, depth, pools,
 riffles, and the like, unrelated to
 ambient water quality, preclude aquatic
 life from remaining in the site for 96
 hours or more. These site-specific
 conditions may also be taken into
 account in determining whether a
 discharge must comply with the chronic
 whole effluent toxicity requirements
 specified in proposed procedure 6.A.2., .
 This provision is discussed in section
 Vin.F of the preamble.       ,-
   "As explained above in the section of
 ibis-preamble on the Applicability of
 the Tier I and Tier II Criteria/Values, the
 Initiative Steering.Committee intended
 that the States be given additional
 flexibility to modify chronic aquatic life
 criteria/values where physical and
 hydrologic conditions prevent aquatic
 life from remaining in a specific water
 body for 96 hours or more. The Steering
 . Committee was concerned that the
 chronic aquatic life criteria/values
 would be unnecessarily stringent in
 protecting aquatic life in such locations
 because the chronic aquatic life
 methodologies assume that aquatic life
 are exposed to pollutants in a specific
 water body for at least 96 hours.
 Consistent with the Steering Committee
 deliberations, the proposed Guidance
 allows the States to develop site-specific
 modifications to the chronic aquatic life
 criteria/values to reflect local physical
 and hydrologic conditions.
  *  EPA believes that it is possible that
 there may be sites within the Great   • ,
Lakes System where aquatic life willnot
remain at the site for more than 96     ..
hours. Consequently, aquatic life can be
protected from suffering chronic health
effects at such sites by criteria/values
less stringent than those developed
under the proposed Great Lakes
Guidance. Similarly, in sites where
conditions preclude all but a few forms
of aquatic life from living in a specific
site, it is possible that the few, forms of
aquatic life living at the site may be
protected by less stringent criteria/
values. Because the physical and
hydrologic condition justification for
the exception to procedure 6.A.2 of
appendix F is functionally equivalent to
a justification for the removal of a
designated use at 40 CFR 131.10(g)(2), ,
(4) and-(5), EPA'expects this exception
will typically be used for waters where
a full aquatic life use is unattainable.
States must ensure that the application
of this exception does not impair the -•
water quality _of downstream waters.
  The proposed Great Lakes Guidance
does not provide for the same flexibility
in terms of site-specific modifications to
the wildlife and human health criteria/
values or to bioaccumulation factors as
is available for aquatic life criteria/
values. The proposed Guidance restricts-
site-specific modifications to human
health criteria/values, wildlife criteria/
values, or bioaccumulation  factors to
only those which would increase the
level of protection for humans and
wildlife. The proposed Guidance, in
allowing States to adopt less stringent
criteria/values for aquatic life, but not .
for human health and wildlife,.is
consistent witbrthe Steering
Committee's proposal.               ••'-;
  EPA believes that although less
stringent site-specific criteria/value
modifications can be justified for
aquatic life,, similar justifications may
not exist with respect to less stringent
wildlife and human health criteria/
values or BAFs. For example, EPA does
not believe that there are natural
conditions in the Great Lakes System
which preclude humans and wildlife
from consuming fish and recreating in
specific sites. Similarly, even if there
maybe local populations of humans and
wildlife less exposed to toxicants than
assumed in deriving the State-wide
criteria, a less stringent site-specific
, modification may not be appropriate
given the mobility of humans and
wildlife into and out of these localized
areas. Instead, EPA assumes that, due to
.their mobility, humans and wildlife feed
from .and recreate in all portions of the-
Great Lakes System. EPA believes that
these assumptions are reasonable and
appropriate in light of the goals and
objectives of the Clean Water Act and  ,
.the Great Lakes Water Quality
 Agreement. However; EPA requests
 comment on these assumptions.
  , The proposed Guidance allows Great
 Lakes States and Tribes to adopt site-
 specific modifications allowing for
 application of less stringent aquatic life
 'criteria/values where local water quality
 parameters alter the biological
 availability and/or tpxicity of a
 pollutant, but does not allow similar
 site-specific modifications for human
 health and wildlife criteria/values. This
 proposal is consistent with the proposal
 of the Steering Committee. In those
 cases where the biological availability
 and/or toxicity of a pollutant is.
 decreased by local water quality
 conditions (e.g., pH, hardness,
 alkalinity, suspended solids), a less      ;
 stringent criteria/value for aquatic life
 will adequately protect aquatic
 organisms. The proposed Guidance   ,
 reflects a more conservative approach
 with respect to humans and wildlife by
 allowing only more stringent site-
 specific modifications. EPA believes
 that this conservative approach is •
 appropriate because of the mobility of,
 humans and wildlife and their potential
 for exposure to these pollutants in
 different areas of the Great Lakes basin.
 In addition, there is not adequate
 information to quantify the total
 environmental uptake by humans and
 wildlife from different exposure routes.
 In light of these uncertainties, EPA
 proposes to use an approach that may
 result in human health, and wildlife
 criteria/values which are somewhat
 overprotective in those cases where
 local water quality parameters decrease
 the biological availability and/or'
 toxicity of a water body. This approach
 would err on the side of being    '
 overprotective rather than
 underprotective. EPA invites Comment _
 on whether the proposed approach for
 humans arid wildlife is reasonable or
 "whether less stringent site-specific
 modifications should be allowed under
 certain circumstances.
   Specifically, EPA requests comment
 on whether the proposed Guidance ,
 should be modified to allow for
 development of less stringent site-
 specific modifications to all types of ;
 criteria/values (including human health
 ;and wildlife) arid BAFs under any of the
 • scenarios described below or under any
• other scenarios. Comment is requested
 on whether less stringent site-specific
 modifications should be allowed for ,
 human health and wildlife criteria/
 values where local water quality .
 parameters decrease the biological
 availability and/or toxicity of a - -
 pollutant. EPA invites specific comment
 on adding to the human health and

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20920
Federal Register / Vol. 58, No. 72  I Friday,  April 16, 1993  /  Proposed Rules
wildlifa provisions the sarao text as -
appears in section A.l.a of procedure 1
of appendix F for aquatic life. EPA also
Invites comment on whether less
stringent site-specific modifications
should ba allowed for bioaccumulative
pollutants where local physical or
hydrologic conditions do not allow
aquatic life that may he consumed hy
humans or wildlife to ha present in the
water hody long enough to reach steady-
state Woaecumulation. EPA further
invites comment on whether less
stringent site-specific modifications
should ba allowed for bioaccumulation
factors if reliable data shows that local
bioaccumulation is lower than the
system-wide value.
                        EPA also invites comment on whether
                      it should allow in the final Great Lakes
                      Guidance the development of less
                      stringent site-specific modifications to
                      the aquatic life criteria/values, as
                      proposed today. Eliminating the option
                      would enhance consistency of criteria in
                      the Great Lakes System.
                        The proposed Guidance for wildlife
                      criteria/values states that modifications
                      may be made on a site-specific basis to
                      provide an additional level of protection
                      for a species determined to require
                      greater protection, for any reason. The
                      proposed Guidance specifies that such
                      site-specific modifications may be
                      accomplished through the incorporation
                      of an additional uncertainty factor in the
                                          _ (NOAEL X SSF x ISF) x WtA

                                                  WA-f(FAxBAF)  _
                                                                             equation for the wildlife value. The text
                                                                             presented below provides additional
                                                                             guidance on the equation for the
                                                                             calculation of the wildlife value and is
                                                                             in keeping with the intent of the
                                                                             Initiative Committees. EPA requests
                                                                             comment on the use of the following-
                                                                             alternate text to replace the text of
                                                                             procedure 1.A.2 of appendix F of the
                                                                             proposed Guidance.

                                                                               Wildlife criteria or values may be modified
                                                                             on a site-specific basis to provide aa
                                                                             additional level of protection for a species ,
                                                                             determined to require greater protection, for
                                                                             any reason. This may be accomplished
                                                                             through the use of an additional uncertainty
                                                                             factor in the equation for the wildlife value •
                                                                             as presented below:
 where:
 The terms are defined in appendix D,
     section II of the proposed Guidance
     except that:
 NOAEL=No Observed Adverse Effect
     Level in milligrams per kilogram
     body weight per day (mg/kg/d)
     determined for the taxonomic class
     to which the species requiring
     greater protection belongs.
 WtA-Averaga weight in kilograms (kg),
     of the species requiring greater
     protection,
 WA=Average daily volume of water
     consumed by the species requiring
     greater protection, In liters per day.
 FA«Average daily amount of food
     consumed by the species requiring
     greater protection, in kilograms per
     day(kg/d).
 BAFaAquatic life bioaccumulation
     factor in liters per kilogram (L/kg)
    for the trophiclevelfs) at which the
    spodes requiring greater protection
    faeds. The BAF is chosen using
    guidelines for wildlife presented in
    appendix B, section V.B of the
    proposed Guidance.
ISF«Intraspecies sensitivity factor. An
    uncertainty factor to account for
    differences in toxicologies!
    sensitivity among members of the
    population of the species requiring
    greater protection (maybe 0.1 or
    less).
  The aquation presented above for the
calculation of a site-specific wildlife
criterion for species requiring greater
protection incorporates the use of the
NOAEL determined for  the taxonomic
class to which the species requiring
greater protection belongs. It is possible
that the site-specific wildlife criterion
                                      may be based on a species from a
                                      different taxonomic class than the
                                      wildlife value used to derive the State-
                                      wide wildlife criterion. However, site-
                                      sp ecific modifications may only be
                                      made when the site-specific wildlife
                                      criterion which results is more stringent
                                      than the State-wide wildlife criterion. In
                                      addition, the above equation for the
                                      wildlife value includes an intraspecies
                                      sensitivity factor (ISF) to provide
                                      additional protection to individuals in a
                                      population since the proposed wildlife
                                      methodology is derived to protect
                                      wildlife populations, not individuals'
                                      within the population. Therefore, EPA
                                      highlights the use,of site-specific
                                      modifications for the protection of
                                      individuals within a population for
                                      species requiring greater protection for
                                      public comment
                                        Section IT.K of today's preamble states
                                      that EPA has initiated informal
                                      consultation with the FWS to ensure
                                      that the requirements in part 132 are not
                                      likely to cause jeopardy for threatened
                                      or endangered species in the Great
                                      Lakes System. EPA invites comments on
                                      whether procedure 1 in appendix F to
                                      part 132 should contain specific text
                                      requiring modification on a site-specific
                                      basis of aquatic life and wildlife criteria/
                                      values to provide protection appropriate
                                      for threatened or endangered species.
                                        Individual Great Lakes States may
                                      make a decision to modify any aquatic
                                      life, human health or wildlife criterion/
                                      value consistent with the requirements
                                      of this guidance. Site-specific
                                      modifications to criteria must be
                                      submitted to EPA for approval or
                                      disapproval in accordance with section
                                      303(c) of the Clean Water Act and 40
                                                            CFR 131.20. Iri. addition, the proposed
                                                            Guidance would require that the State
                                                            share information concerning site-
                                                            specific modifications to Great Lakes
                                                            criteria/values with other Great Lakes
                                                            States. The State must notify the other
                                                           • Great Lakes States at the time a State
                                                            proposes any site-specific modification
                                                            and supply a justification for any less
                                                            stringent site-specific modification. The
                                                            State may send a notice to the
                                                            appropriate State agency designee's and/
                                                            or notify the EPA Region V
                                                            Clearinghouse to comply with this
                                                            requirement. The purpose of the notice
                                                            is to allow other Great Lakes States to
                                                            comment on proposed site-specific
                                                            modifications to criteria/values since a
                                                            primary objective of today's proposed
                                                            Guidance is to provide consistency
                                                            among the Great Lakes States.
                                                             EPA invites comment on two possible
                                                            alternatives to the proposed procedure 1
                                                            of appendix F. Under the first
                                                            alternative, site-specific modifications
                                                            as provided in procedure 1 would be
                                                            available only for tributaries and
                                                            connecting channels, not the open
                                                           waters of the Great Lakes. This first
                                                           alternative was developed by the
                                                           Technical Work Group, which felt that
                                                           the Great Lakes criteria provide
                                                           appropriate protection for the open
                                                           waters of the Great Lakes and that the
                                                           proposed procedure 1 should only be
                                                           used for rather small localized areas to
                                                           provide needed additional protection of
                                                           specific subpopulations within those
                                                           areas and, for aquatic life, limited less
                                                           stringent modifications. The reason for
                                                           the Work Group's proposal was to
                                                           ensure that a consistent set of

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                 Federal Register / Vol. 58, :No. 72  / Friday, April  16, 1993 / Proposed  Rules          20921
 requirements is applied throughout the
 open waters of the Great Lakes.
   Although EPA recognizes that one of
 the goals expressed in the legislative
 history of the Great Lakes Critical
 Programs Act of 1990 is to promote,
 consistency in Great Lalces water quality
 standards, EPA does not view this goal
 as overriding the authority specifically
 reserved to States and Tribes in section
 510 of the Clean Water Act to enact
 more stringent requirements than
 necessary to implement Clean Water Act
 requirements. Furthermore, Article IV(a)
 of the Great Lakes Water Quality
 Agreement also clearly provides that the
 Agreement is not intended to preclude
 adoption of more stringent   .        ,
 requirements. Consequently, EPA is not
 authorized under the Clean Water Act to
 prohibit States from adopting more
 stringent criteria/values for the open,
 waters of the Great Lakes System. For
 these reasons, EPA is not proposing this
 first alternative in today's proposed
 . Guidance. Nevertheless, EPA invites
 comment on this first alternative, and
 on EPA's interpretation of the Clean
 Water Act.               .           •'  •
    A second altemative.would provide
 that the site-specific modification
 procedures in procedure 1 of appendix
 F would differ for pollutants that are not
 bioaccumulative chemicals of concern
 (BCCs). For non-BCCs, this.alternative
 approach would allow site-specific
 modifications for human health and
 wildlife criteria/values that are either
 more stringent or less stringent than the
 criteria/values derived using the
 proposed Guidance methodologies,
 depending on local considerations (e.g.,
 water quality characteristics). This
 alternative approach would provide    .
 additional flexibility to the States in
 conducting site-specific modifications
 for rion-BCCs.
    This second alternative was not
 viewed favorably by the Great. Lakes
  Steering Committee. EPA is proposing
 today that only those site-specific
  modifications which result in more
  stringent human health and wildlife
  criteria/values be allowed under the
  proposed Great Lakes Guidance,
  consistent with the Steering Committee
  proposal. However, EPA invites
  comment on this possible alternative
.  approach.  •
  B. Variances From Water Quality
  Standards for Point Sources.
.   , The proposed Water Quality
  Guidance for the Great Lakes System
  proposes Guidance to be followed by
  the Great Lakes States and Tribes in the
  development of procedures for granting
 • variances from 'water :quality standards
  for point sources at 40 CFR p;art 132,
 appendix F, procedure 2. This proposed
 Guidance is not intended to require the
 States or Tribes to include a variance
 provision as part of their standards
 program. Rather, EPA is proposing to
 permit Great Lakes States and Tribes to
 include water quality standards
 variance provisions in their water
 quality standards,-and grant variances
 based on those provisions, as long as
 they are at least as stringent as those
 proposed herein. The proposed water
 quality standards variance procedure
 provides a mechanism for States and
 Tribes to maintain goal standards and
 assure compliance with.sections
 301(b)(l)(C) and 402(a)(l) of the CWA
 that require NPDES permits meet
 applicable water quality standards,
 while granting temporary relief to point
 source dischargers.
   The intent of the variance  provision is
 to: Provide a mechanism by which  .
 permits can be written to meet a,
 modified standard where compliance
 with the underlying water quality
 standard is demonstrated to  be
 infeasible; encourage maintenance of
- original standards as goals rather than
 removing uses; identify conditions
 under which such variances may be   ,
 granted; identify the requirements for
 variance applications; and ensure the
 highest  level of water quality achievable
 while tiie variance is in effect.

 1. Current EPA Policy
   For some time, EPA has
 acknowledged State  or Tribal authority
 to grant variances from water quality
 standards and has approved both State-
 - adopted variances procedures and State-
 issued individual variances. Because the
 Clean Water Act does riot speak directly
 to water quality standards variances and
 EPA's regulations merely allow States to
 adopt variance provisions subject to
' EPA approval, the permissible scope of
 water quality standards variances must
 be discerned from the general structure
 of the Clean Water Act and by analogy.
 This process,,conducted over the past
 15 years, has resulted in a variety of
 guidance and interpretive documents
 which,  together, set  out the evolution of
 EPA's current policy on water quality
 ' standards variances.   •
   EPA first formally indicated
 allowability of State water quality
 . standards variance provisions in
 Decision'of the General Counsel No. 44,;
 dated June 22,1976, which specifically
 considered an Illinois variance
 provision. EPA expanded upon the
 acceptability of State water quality
 standards variance procedures in    \  /
 Decision of the General Counsel No. 58
 (44 FR 39508) dated March 29,1977
 (pGG#58):
  .*'•*- * Rather than downgrading the
standard [note: downgrading the standard is
currently referred to as removing a
designated use in EPA's Water Quality
Standards Regulation at 40 CFR 131.10(g)j for
an entire stream, or stream segment, some  .
States have maintained the standard, but
provided that individual dischargers may
receive variances for a limited time period
from meeting standards. This approach
appears to be preferable environmentally.
The more stringent standard is maintained
and is binding upon all other dischargers on
the stream or stream segment. Even the  -
discharger who is given a variance for one     ;
particular constituent * *  * will be required \
to meet.the applicable criteria for other
constituents. T}ie variance is given for a
limited time period and the discharger must
either meet the standard upon the expiration
of this time period or must make a new  '  ,
demonstration of unattainability.
  EPA will accept such variance procedures
as part of State water quality standards as
.long as they are consistent with the
substantive requirements of 40 C.F.R, 130.17
[note: 40 CFR 130.17, as revised on
November 8,1983; is currently codified as
Water Quality Standards at 40 CFR 131].
Therefore, variances can be granted by States
only when achieving the standard is
unattainable. In demonstrating that meeting"
the. standard is unattainable, tie State must
demonstrate that treatment in excess of that
required pursuant to section 3.0i(b)(2) (A)
and (B) of the CWA is necessary to meet the ,
standard and also must demonstrate that
requiring such treatment will result in
substantial and widespread economic and   .
social impact * * *.
  The justification submitted by the State
should include documentation that treatment
more advanced than that required by section
303(c)(2)(A) and (B) has been carefully
considered and that alternative effluent
control strategies have been evaluated.
   Since State variance proceedings involve
revisions of water quality standards, they
must be subjected to public notice,    :
opportunity for comment, and public
hearing. (See section 303(c)(l) and 40 C.F.R.
130.17(a)0 The public notice should contain
a clear description of the impact of the
variance upon achieving water quality
standards in the affected stream segment.
   OGC #58 has formed the basis for  .
EPA's water Duality standards variance
policy to the present. This decision is ,
available in the administrative record
for this rulemaking.
   Subsequent guidance has elaborated
 on or clarified the policy over the years.
For example, the Director of EPA's
 Criteria and Standards Division,   '
 transmitted EPA's definition of a water
 quality standards variance to the
 Regional Water Quality Standard
 Coordinators on July 3,1979 (1979
 Guidance), which is available in the
 administrative record for this
.rulemaking, variances are granted for a
 specific period of time and must be
 rejustified upon expiration but at least
 every three years. The three-year

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 20922
Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
 Trustification is derived from the
 triennial review requirements of section
 303fc)oftheCWA.
   The 1983 revisions of the Water
 Quality Standards Regulation allowed
 States to include variances in State
 standards, subject to EPA review and
 approval (40 CFR 131.13). In the
 preamble discussion of the General
 Policies Section (1983 Preamble at 48
 FR 51403), EPA re-affirmed the
 allowability of State water quality
 standards variances mirroring the
 requirements as set out in OGC #58:
  EPA has approvod Stato-adoptod variances
 in the past and will continue to do so if: each
 individual variance is included as part of the
 witor quality standard * * * and is granted
 bajod on « demonstration that meeting the
 standard would causa widespread social and
 economic impact, the same test as if the State
 wore changing « use based on widespread
 social and economic impact * *  * With the
 varianco provision, NPDES permits may be
 written such that reasonable progress is made
 toward attaining the standards without
 violating section 402{a)(l) of the CWA which
 states that NPDES permits must meet the
 applicable water quality standards.
  The 1983 preamble noted that water
 quality standards variances were
 appropriate for granting relief to NPDES
 discharge permits and linked the
 granting of such variances to reasonable
 progress being made toward meeting the
 underlying standards.
  In December 1983, EPA produced a
 Handbook  to assist in implementing the
 1983 Regulation. The Handbook
 explains that in showing widespread
 social and economic impact, the
 determining factor is whether the
 impact on the discharger is sufficient to
 have a substantial and widespread
 impact on the affected community and
 not just on  the discharger.
  On March 15,1985, the Director of the
 Office of Water Regulations and
 Standards,  responding to questions
 raised on water quality standards
 variances, issuea a reinterpretation of
 the factors that could be considered
 when granting variances (1985
 Guidance). This memorandum
 explained that variances could be based
 on any of the grounds outlined in 40
 CFR 131.10{g) for removing a designated
 usa, not merely on the widespread
 social and economic impact ground.
 This interpretation was based on the
 fact that, under section 510 of the Clean
 Water Act,  States have the right to
 establish more stringent standards than
 thcsa suggested by EPA. Therefore, as
 long as any temporary water quality
 standards variance conforms to the
 requirements established in 40 CFR
 131.13fg) for removal of a designated
uso, it would be more stringent than the
                      Federal requirements since it would be
                      a temporary rather than permanent
                      change.

                      2. GLWQI Proposal (40 CFR Part 132,
                      Appendix F, Procedure 2)
                        The proposed Great Lakes Guidance,
                      procedure 2 of appendix F of part 132,
                      proposes a procedure to ensure
                      consistent application of water quality
                      standards variances for, the Great Lakes
                      States and Tribes. Variances can be
                      requested for any of the grounds which
                      justify removing designated uses set out
                      at 40 CFR 131.10(g).
                       , The six conditions set forth in
                      proposed procedure 2.C.1  through 2.C.6
                      of appendix F are, as discussed above,
                      taken from 40 CFR 131.10(g) and are
                      generally self explanatory. EPA has not
                      provided further details or definition for
                      these six conditions for that reason and
                      because it could interfere with lie
                      intention to give the States and Tribes
                      some latitude in applying this provision
                      on a case-by-case basis. However, £PA
                      solicits comments on whether
                      procedure 2.C.3 of appendix F should
                      be clarified to prevent any bootstrapping
                      by parties who have contributed to the
                      human-caused conditions  or sources of
                      pollution. That is, should parties that
                      have contributed  to conditions that
                      prevent water quality  standards from
                      being attained be  explicitly prohibited
                      from being granted a water quality
                      standards variance based on that non-
                      attainment? An example of such  .
                      bootstrapping might be a discharger,
                      whose past or present activities
                      (including, but not limited to,
                      discharges, spills, or leaching of
                      pollutants) have contaminated
                      sediments which  currently cause non-
                      attainment of water quality standards,
                      requesting a water quality standards
                      variance based on that previous and/or
                      continuing, pollution.
                       As mentioned in the discussion on
                      pollutants in intake waters (section
                      VHI.E of the preamble), variances may
                      be available under procedure 2.C.6 of
                      appendix F for certain dischargers
                      where the intake water contains a
                      ubiquitous pollutant which is found in
                      almost all water bodies in a watershed
                      at about the same concentration due to
                      watershed-wide contributions from
                      nonpoint sources  and where removing
                      the pollutant would cause a substantial
                      and widespread social and economic
                      impact. In the case of small dischargers
                      unable to meet the widespread social
                      and economic impact test, a variance
                      may be available under procedure 2.C.3
                      of appendix F, which applies where
                      there are human caused conditions or
                      sources of p dilution that cannot be
                      remedied, at least in the near term. In
 either case, the variance would establish
 an interim criterion for the pollutant
 that accounts for the background level
 and the level of incidental removal
 obtained by the discharger's proposed or
 existing treatment system. EPA seeks
 comment on whether such variances
 addressing ubiquitous pbllutants'should
 be available to new as well as_ existing
 dischargers. Comments are also solicited
 on whether this, or any of the other six
 conditions for granting a water quality
 standards variance, require further
 explanation or clarification.
   The proposed Guidance would not
 require the Great Lakes States or Tribes
 to have a variance procedure for water
 quality standards, but if they adopt one,
 it would be required to be consistent
 with the procedure proposed herein. In
 the proposed Guidance, Great Lakes
 States and Tribes would retain  the  ,
 discretion to define what specific
 information they will require in a
 permittee's variance demonstration and
 application pursuant to procedures 2.C
 and 2.D of appendix F. Great Lakes
 States and'Tribes would also have the
 discretion to define the decision criteria
 the Great Lakes State or Tribe will use
 when approving or disapproving a
 variance under procedure 2.F of
 appendix F, as long as they are  at least
 as stringent as the requirements
 proposed in procedure 2.C, subject to  .
 EPA review and approval.
  A Great Lakes State or Tribe choosing
 to adopt variance procedures will
 provide information, pursuant to part
 132.5(b)(3) of the proposed Guidance,
 on the requirements for the variance
 demonstration and application as well
 as the evaluation criteria that the State
 or Tribe would use to approve or
 disapprove specific variances. This will
 assure that: the public has sufficient
 information to comment on the
 appropriateness of a State's or Tribe's
 WQS variance process pursuant to part
 132.5(c) of the proposed Guidance; EPA
 has sufficient details to determine if the
 State or Tribe procedures comply with
 the CWA and are.approvable pursuant
 to part 132.5(d) of the proposed
 Guidance; and both EPA and the public
have adequate information on which to
 judge State or Tribal compliance with
 its own procedures when making
individual variance decisions. EPA
requests comment on whether the
appropriate amount of latitude is given
the States and Tribes and on whether it
will provide for the consistency within
and between State and Tribal programs
in the Great Lakes System that the .
proposed Guidance is intended  to
provide. Neither the procedure
proposed, nor any State or Tribal
procedures adopted consistent with it,   ,

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                 Federal Register / Vol. 58, Np, 72 / Friday, April 16, 19.93-/ Proposed"Rules^    .     20923
 would require States, or Tribes to grant
 variances in any specific circumstance.
   EPA requests comment on whether
 this section provides adequate guidance,
 and sufficient detail, for the Great Lakes'.
 States and Tribes to make appropriate
 decisions on water quality standards
 variance applications.         ... .

 3. Applicability   .    .          ;
   The Guidance requkes variances
 apply only to the permittee requesting
 the variance and only to the pollutant(s)
 specified. The water quality standards
,. for the affected water body are not
 otherwise changed by a water quality
 standards variance. Although a variance
 modifies specific criteria for specific
 NPDES discharges, the underlying water
 quality standards for the water body
 .have full force and effect for all other
 purposes, and any controls place)d on
 other sources of pollution to the water
 body should be designed to meet those
 standards. Any TMDL/WLA/LA, NPDES
 permit (other than the specific one
 modified pursuant to the variance), or v
 other water pollution control
 requirement is to be implemented in a
 manner consistent .with the appropriate
 implementation absent the variance.
 .  The proposed Guidance would not
 allow variances for new or
 recommencing dischargers as those
 terms are defined at 40 CFR 122,2.
 Water quality standards variances are
 intended to provide relief, whera
 appropriate, to existing dischargers.
 Variances could apply to existing
 dischargers even where water qiiality
 standards have been on the books for a
 while (as long as they have consistently
 not been attained). New and   .   .
 recommencing dischargers should
 design their facilities and treatment to
 meet water quality standards. EPA
 requests comment on the    .
. appropriateness of these restrictions and
 on whether variance requirements for
 increasing dischargers should be
 different from those for existing
 dischargers as those terms are defined at
 procedure 9.D of appendix F of the
 proposed Guidance and whether the
 definition for new discharge at    .    ...
 procedure 9.D of appendix F of the
 proposed Guidance is-more appropriate
 to this section than the definition at 40
 CFR 122.2.
 4. Maximum Timeframe
    The Great Lakes Guidance proposes a
 maximum three-year limit on the,
  duration of variances, subject to
 possible renewal. This is intended to
 reinforce the triennial review required  /
  of all water quality standards in section
  303(c) of the Clean Water Act EPA's
  1979 Guidance clearly indicated that
 variances must be reviewed ©very three
 years! Some States and Tribes use the
 triennial review process to accomplish
 this review, however, this is not
 universal and triennial reviews are often
 delayed. EPA believes that the most
 effective way to assure that variances get
 a detailed review at the prescribed
 interval is to require them to actually
 expire at no greater than three-year i  .
 intervals.            -
 5. Conditions to Grant a Variance
   Variances under the Great Lakes
 Guidance are applicable if any of five
 specified types of water body conditions
 exist and/or the affected community
 would encounter substantial and
 widespread economic and social
 impacts as aresult of the point source
 having to install controls beyond
 technology-based requirements. The
 permittee must also make two other
 demonstrations^          -.-..•
   The first demonstration would be that
 the requested variance is consistent
 with State or Tribal antidegradatibn  '
 procedures. This requirement would
 prevent a variance that would result in
 a lowering of actual water quality for .
 any pollutant where water quality for
 that pollutant does not support either,
-the designated or existing uses or in any
 water constituting an outstanding
 national resource as proposed at section
 I.C of appendix E of part-132. This
 provision would also prevent
 dischargers from avoiding the proposed
 requirements of section I.B of appendix
 E of part 132 in high quality waters by
 requesting a variance rather than
 conducting an antidegradation
 .demonstration. In most instances,
 variances are requested where water
 quality standards are already not being
 met. In addition, the requirement at
 procedure 2.F.1 of appendix F requiring
 dischargers to maintain the level of.
 treatment achieved under the previous
 permit would normally prevent a
 discharger from being granted a variance
 that would result in a lowering of water
 quality. The antidegradation showing
 would simply demonstrate to the State
 and public that either a concurrent
 antidegradation question is not at issue
 or that, if one is, the regulatory
 provisions for antidegradation are being
- met. EPA requests comment on whether
 this demonstration is appropriate.    _-.•:
    Second, the applicant would be
 required to demonstrate the extent of
 any increased risk to human health and
 the environment associated with
 compliance with the variance compared
 to the.original water quality standards,
 and the State or Tribe would be required
 to find that any such increased risk is
  consistent with the protection of the
public health, safety and welfare before
granting a variance. Because variances,
are from water quality standards that
meet the goals and requirements of the
Clean Water Act, this language is
intended to ensure that the "general
requirement of section 303(c)(2)(A) of
'the CWA (i.e., such standards shall be
such as to protect the public health and
welfare) is met even though specific
protective criteria may be temporarily •
exceeded.   .
  The permittee has the sole
responsibility to provide sufficient
relevant information, pursuant to State
or Tribal requirements, to make a
variance demonstration for the
pollutant(s) in question. Failure of the
permittee to make the demonstration or.
to provide sufficient information in the
submitted demonstration shall result in  ,
a State denial of the variance,

6. Timeframe to Submit Application.',,-.
  The proposed Guidance would allow .-.
initiation of the source-specific variance
process after the controls based upon
water quality standards are imposed in
NPDES permits since that is the time  ,K
when a point source discharger knows**^
the exact requirements'that will be
imposed and is in the best position to
assess whether those limits can be
attained. This would reduce the number
of variance requests by avoiding
protecting requests, Commentis
requested on whether it'-would be more
appropriate to require Initiation of the  : .
variance process within 60 days of a
proposed permit. If a variance is granted
after the effective date of the water   ,.
quality-based NPDES effluent limitation
in question (e.g., after completion of any
evidentiary hearing during which the
limitation was stayed and after the
compliance date for the limitation), then
the permittee willhave to demonstrate
satisfaction of the ahti-backsliding ,
requirements of section 402 (o) of the
CWA before the permit can be modified
to include a less stringent effluent
limitation. That demonstration may be
based on either section 402(p) or section
 303CDX4XA).                        :,
 7. Public Notice of PreUminary Decision
   The proposed Guidance would
 provide the public an opportunity to be
 involved at two times: First, during the
 comment period associated with the
 notice of receipt, of the variance request;,
 and second,",during the public notice of
 the modification of the permit. In     ,
 addition, the requirement that variances
 be appended to State water quality
 standards rules ensures that the public
 is made aware of which variances have
 been granted. Both public notices
 should contain a clear, description of the

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 20924
Federal  Register  / Vol.  58, No. 72 / Friday, April 16, 1993 / Proposed Rules
 impact of the variance upon achieving
 water quality standards in the affected
 stream segment.
   Tha following is a summary of the
 elements that EPA would expect to he
 made available to the public in order to
 moot the public notification
 requirements of the water quality
 standards regulation and the proposed
 Guidance. These items would not need
 US be included in detail in the public
 notice; however, the public must be
 mado aware of their existence and of
 how and where they may be obtained.
   a. A statement that the action must
 comply with the State's or Tribe's
 variance procedures and description of
 those procedures.
   b. The permittee's demonstration,
 Including the rationale for the requested
 variance and the extent of any increased
 risk to human health and-the
 environment associated with the
 variance.
   c. In addition, for the public notice for
 the modification of the NPDES permit,
 the public comments and public hearing
 record pursuant to procedure 2.E of
 appendix F, and the State approval
 pursuant to procedure 2.F appendix F of
 thoproposed Guidance.
   EPA requests comment on whether
 the public notice requirements in this
 proposal are adequate to allow the
 public to be fully involved in the State
 wafer quality standards variance process
 and, if not, what requirements would be
 adequate.
 8, Final Decision on Variance Request
   The proposed Guidance would allow
 the State's or Tribe's final decision on
 tha variance request to be an approval,
all NPDES permit conditions needed to
implement the parts of the variance
approved. These conditions would be
designed to assure that; The permittee
minimizes, to the maximum extent
possible, exceedance of the underlying
water quality standards by
implementing the level of treatment
currently achievable (conditions
requiring effluent limitations at least as
stringent as those achieved under the
previous permit); the permittee makes
reasonable progress toward attaining the
water quality standards as envisioned in
tha 1983 preamble, through appropriate
conditions (such as the establishment of
a capital improvements fund and
continued investigations of treatment
technologies, process changes, pollution
prevention, wastewater reuse and/or
other techniques that will reduce the
lovel of the pollutant or result in
compliance oy the permittee with the
WQS and submission of reports on the
                      investigations at such time specified by
                      the State), and effluent Limits sufficient
                      to protect water quality standards are in
                      effect upon expiration of the variance.
                      9. Incorporating State- or Tribal-
                      Approved Variance Into Permit
                        Once the variance is granted, the
                      appropriate NPDES permitting authority
                      would be required to modify the NPDES
                      permit to incorporate all NPDES permit
                      conditions determined to be necessary
                      to implement the variance.  „
                      10. Renewal of Variance
                       The proposed Guidance would
                      require the permittee to apply for a
                      variance renewal and make a new
                      showing of justification, no later than
                      the required submission of a permit
                      application for a NPDES permit,  or 60
                      days prior to the expiration of the
                      variance, whichever occurs earliest;
                      variances would not be automatically
                      renewed. As part of the renewal
                      application, the permittee must be
                      required to demonstrate that it has met
                      the NPDES permit conditions
                      implementing the existing variance. The
                      same public notice requirements for the
                      initial issuance of a variance would
                      apply to the renewal. Permittees  not
                      demonstrating compliance with these
                      conditions  would not be eligible for
                      variance renewal. EPA requests
                      comment on the sufficiency of the
                      proposed renewal requirements.
                      11. EPA Approval
                       Variances are modifications of State
                      or Tribal water quality standards and
                      are, therefore, subject to EPA review and
                      approval. Like other water quality
                      standards changes, variances are
                      effective when adopted (under the terms
                      of the adoption), whether or not EPA
                      review is complete. For EPA to conduct
                      an adequate review, sufficient
                      information must be submitted.
                      Procedure 2.1 of appendix F would set
                      out the timeframe and substantive
                      requirements for that submittal. EPA's
                      review would follow the procedures of
                      40 CFR 123.44 and 40 CFR 131.21. EPA
                      requests comment on the sufficiency of
                      the proposed information requirements
                      in this section  as well as the
                      appropriateness of the proposed
                      timeframes.

                      12. State or Tribal Water Quality
                      Standards Revisions
                       Because water quality standards
                      variances are modifications of water
                      quality standards, the proposed
                      Guidance would require the State or
                      Tribe to append the State- or Tribal-
                      approved variances to the State's water
                      quality standards. EPA has traditionally
 required water quality standards
 variances to be granted through the
 water quality standards adoption
 process. This requirement is intended to
 ensure that: the public is made aware
 that a water quality standards change is
 under consideration and has sufficient
 opportunity to comment on the action;
 the State or Tribal water quality
 standards document accurately reflects
 the criteria that  •will be used to derive
 effluent limitations and other water
 quality-based controls; and water
 quality standards variances are
 submitted to EPA for .review and
 approval/disapproval under section 303
 oftheCWA.
  There was considerable concern
 expressed by the States,, during the
 preparation of the proposed Guidance,
 that this requirement would make water
 quality standards variance adoptions so
 lengthy that variances would be
 essentially unusable for granting
 appropriate relief to dischargers in a
 timely manner. EPA and the Technical
 Work Group recognized this concern
 and have, through the public,.
 participation and EPA review and
 approval requirements of the proposed
 Guidance, met the substantive
 requirements of a water quality
 standards action while allowing a water
 quality standards variance be appended
 to, rather than adopted in, the State or
 Tribal standards. Thus, the proposed
 Guidance allows the Great Lakes States
 or Tribes to grant water quality
 standards variances without requiring
 that those variances go through their
 usual water quality standards adoption
 process. EPA requests comment on
 whether the proposed Guidance
 adequately meets the intent and
 substantive requirements for State or
 Tribal adoption  of variances as changes
 to water quality standards.
  The proposed Guidance contains no .
 timeframe under which the State and
 Tribes would be required to append the
 variance to the standards. EPA requests
 comment on whether such a mandatory
 timeframe is necessary, and if so, what
 that timeframe should be.

 13. Consistency With the CWA and
 Confdrmance With the GLWQA

  The CPA requires EPA to develop,
inter alia, guidance on procedures that
 States must use to implement the
Guidance's water quality criteria in tha
Great Lakes System. The CPA states that
the proposed Guidance shall be no less
restrictive than the provisions of the
Clean Water Act, and shall conform
with the objectives and provisions of the
Great Lakes Water Quality Agreement.
The variance provision contained in the

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                 Federal Register /Vol. 58, No. 72  /  Friday, April  16,  1993  /Proposed Rules
                                                                       20925
 proposed Guidance complies with these
 requirements, as explained below.
   a. Consistency With the Clean Water
 Act. It is the goal of the Clean Water Act
 to achieve, wherever attainable, water,
 quality which provides for the
 protection and propagation of fish,
 shellfish, and wildlife and provides for
 recreation in and on the water.-33 U.S.C.
 1251(2). EPA's regulation found at 40
 CFR 13l.lb(g) addresses the above
 language's phrase wherever attainable.
 To fully understand the proposed
 •Guidance on water quality standards
 .variances, one must start with this
 provision. Basically,  under the CWA's
 regulatory structure,  water quality
 criteria are set by States or Tribes at
 levels which are directed at achieving a
 stream's designated use(s). 40 CFR
 131.10(g) sets forth the procedure by
 which States or Tribes may remove a
 stream's designated beneficialjise,
 under specified conditions. Removing a
. stream's designated use due to the
 unattainability of that use may have the
 effect of lowering the water quality
 criteria for the subject stream segment
 unless a use with more'stringent criteria
 is designated.   -                  ,
 .  Limiting the applications of 40 CFR
 131.10(g) is 40 CFR 131.10(h), which
 states:'
   States may not remove designated
 uses if:          .
   (1) They are existing uses (existing uses are
 those uses actually attained in the water body
 on or after November 28,1975, whether or
 not they are included in the water quality
 standards. 40 CFR 131.3(e).), as denned in
 §-13li3, [i,e.,] unless ause requiring more
 stringent criteria is added; or
   (2) Such uses will be attained by
 implementing effluent limits required under
 sections  301ft) and 306 of the CWA and by
 implementing cost-effective and reasonable
 best management practices for nonpoint
 source control.            '•       .
   The practical effect of removing a   ,
 stream's designated use is that the' water
 quality criteria (which are the bases for
 limiting the discharge of pollutants into
 that stream) are revised to meet the
 remaining or revised use(s). Removing
 or modifying i beneficial use, therefore,
 may effect a relatively widespread and
 permanent lowering in waiter quality  ,
 criteria.   ,          .    ' -   V   ' '
 :  No use removal provision exists in the
 proposed Guidance because, in general,
 , permanent removal of CWA goal uses
 would have little or no effect on the
 applicable water quality criteria,
 Instead, as explained in sections III, V
 and VI of this preamble^ water quality
 criteria or methodologies for the
 protection of aquatic life, wildlife and
 human health are applicable basin-   ;...
 wide, with limited exceptions (see
section VIII. A on site-specific
modifications).
  In effect, the variance provision
included in the proposed Guidance, in
addition to providing the variance  ,
function provided for in 40 CFR 131,
provides a method, appropriate to the
Great Lakes, analogous to the Federal
use removal provision. Consistent with
this approach, the proposed Guidance
basically incorporates the language from
40 GER 131.10(g), with minor
modifications. The difference, of course,
as mentioned previously in the
preamble discussion, is that the
application of the factors in  the
proposed Guidance will only result in a
temporary variance for individual
dischargers and pollutants rather than   •
resulting in a removal or modification of
'a designated use and possible change of
associated criteria'for the. entire water
body segment. For this reason and
viewed in context, therefore, the
proposed Guidance is not less stringent
than what the CWA currently allows. -
  Secondly, it will be recalled that the
Water Quality Standards Regulation (40
CFR Part 131) does not require, but only
indicates the allowability of, State or
Tribal variance procedures.  The
proposed Guidance is consistent with
this approach because the proposed
Guidance does not require a State or,
Tribe to have variance procedures, but  ,
rather only specifies what the variance
provision should be consistent with if
the State or Tribe decides to adopt one.
  Finally, as outlined previously in the
preamble discussion, the proposed      -
Guidance is fully consistent with the
EPA's prior opinions and guidance  ,  .
documents on State variance provisions.
(e.g., the Decision of the General       •
Counsel No. 58 dated March 29,1977;
Preamble to the 1983 Revisions to .the
Water Quality Standards Regulation;
and the 1985 Guidance on Variances . --_"'
issued by the Director of the Office of
Water Regulations and Standards,
which is available in the administrative
record for this rulemaking.)
  b. Gonformance With the'Great Lakes
Water Quality Agreement. Like the
Clean Water Act, the purpose of the  .
Great Lakes Water Quality Agreement
(GLWQA) is to restore and maintain the
chemical, physical and biological
integrity of the waters it addresses.   "
Similar to the Clean Water Act, the
Agreement is structured to achieve this
purpose by requiring the elimination or
reduction to the maximum extent
practicable of discharges of pollutants :
into the Great Lakes System. See Article
H, Purpose.   .•••--..    ;
   As indicated by the language, to the
maximum extent practicable, the
•GLWQA recognizes the need for
 flexibility In addressing requirements
 which, if imposed, would be
 impracticable. In particular, the
 Agreement contains language in Article
TV, Specific Objectives, which explicitly
 recognizes situations in which
 achievement of Specific Objectives
.cannot be attained. These provisions are
 reasonably read as delineating situations
 in which temporary variances are
 permissible. Article IV, Specific  •'-'"'
 Objective 1, contains the following  •
 provisions:                      .
  (e) The Parties recognize that in certain ,
 areas of inshore waters natural phenomena
 existiwhich, despite the.best efforts of the
 •Parties, will prevent the achievement of some
 of the Specific Objectives; As early as
 possible, these areas should be identified
 explicitly by the appropriate jurisdictions   ;
 and reported to the International Joint
 Commission..            .
  : (f) The Parties recognize that there are   .
 areas in the boundary waters of the Great
 Lakes System where, due to human activity,  •
 one or more of the General or Specific
 Objectives of the Agreement are not being   <"
 met. Pending virtual elimination of the
 persistent toxic substances in the Great Lakes
 System, the Parties, in cooperation with State
 and Provincial Governments and the
 Commission, shall identify and work toward
 the elimination of:        .
  (i) Areas of Concern pursuant to Annex 2;
 •and   .     .  :•   -     ,
  • (ii) Critical Pollutants pursuant to Annex 2;
 and         .   .     ..'••'"•.
  (iii) Point Source Impact Zones pursuant tb
 Annex 2.   '•••••'
  These provisions clearly recognize
 that objectives may not be attainable
 due to natural phenomena and/or
 human-caused conditions. In the case of
 an area affected by natural phenomena,  .
 the Agreement requires such areas to be
 identified and reported to the
 international Joint Commission! In the
 case of areas affected by human activity,
 the Agreement requires the Parties work
 toward elimination of such conditions
 areas by identifying and eliminating
 Areas of Concern, Critical Pollutants
 and Point Source Impact Zones,
   The provisions of Article IV as wellas
 the practicable language in Article II of "'
 the Agreement, are reasonably read as
 allowing provision for temporary
 variances from water quality standards.
 The variance provision in the proposed
 Guidance specifies certain naturally
 occurring and human-caused sources of
 pollution which could  justify temporary
 relief from standards. The widespread ;
 social or economic impact variance •'.-'•
 addresses the Agreement's language that
 discharges must be reduced  or
 eliminated where-practicable.
   It is EPA's position that the.variance  ,
 provision included herein conforms-
 with the GLWQA because it is limited ';

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 20926         Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
 to situations where the discharger's or
 the stream's compliance with water
 quality standards is not practicable.
 Additionally, the proposed Guidance
 requires that reasonable progress be
 made toward compliance with water
 quality standards. This requirement
 parallels the requirement of Article IV(f)
 of tho GLWQA, that the Parties must
 work toward the elimination of the
 sources of pollution in the areas not
 complying with the objective of the
 GLWQA,
 14. Options Considered
   «. One option considered by the
 Technical Work Group when
 developing the proposed Guidance
 would nave: allowed the State or Tribe
 to request additional information from
 tho permittee within 30 days after
 receiving the variance application and
 given the permittee an additional 30   '
 days to provide the additional
 Information; required the Great Lakes
 State or Tribe to issue the preliminary
 decision on the variance request within
' 120 days of receipt of the completed
 application and provide a 30 day public
 comment period on the preliminary
 decision, and; required the State or
 Tribe to issue a final decision within 90
 days of the expiration of the public
 comment period or the receipt of
 additional information discussed above.
 Failure of the permittee to provide the
 additional information in the time
 allotted would have resulted in the
 denial of the variance. The proposed
 Guidance does not contain these time
 constraints because it is EPA's opinion
 that existing State or Tribal
 administrative procedures provide both
 sufficient freedom to request additional
 information and sufficient requirements
 to act in a timely manner.
   EPA requests comment on whether
 the proposed Guidance requires the
 Great Lakes State or Tribe to act in a
. sufficiently timely manner on variance
 applications or whether time constraints
 similar to the above are necessary. EPA
 also requests comment on whether the
 proposed Guidance allows the State or
 Tribe sufficient flexibility in collecting
 the information necessary to make a
 defensible decision or whether an
 explicit period for requesting additional
 information is advisable.
   b. Another option considered by the
 Technical Work Group would require
 NPDES permitting authority to initiate
 any applicable NPDES permit
 modification in procedure 2.G of
 appendix F, of the Guidance within 60
 days aftei granting the variance. The
 proposed Guidance does not contain
 this lima constraint because it is EPA's
 opinion that existing State or Tribal
 administrative procedures provide
 sufficient requirements to act in a timely
 manner.
   EPA requests comment on whether
 the proposed Guidance requires
 sufficiently timely State or Tribal action
 in initiating a permit modification in
 response to an approved water quality
 standards variance.
   c. Another option considered by the
 Technical Work Group allowed
 variances based only on procedure 2.C.6
 of appendix F, widespread social and  ,
 economic impact. EPA chose to expand
 the allowable bases for water quality
- standards variances to include those in
 procedures 2.C.1 through C.5 of
 appendix F, where water body
 conditions may warrant short-term relief
 for point sources to be consistent with
 EPA's 1985 Guidance and section 510 of
 the CWA. In addition, EPA found that
 these additional bases for a water
 quality standards variance, especially
 procedures 2.C.1 and 2.C.3 of appendix
 F, were necessary to provide States with
 sufficient flexibility to address the issue
 of unreasonable water quality-based
 effluent limits resulting from ubiquitous
 pollutants in a facility's intake water
 (see discussion hi section VIII.E of this
 preamble.)
   EPA requests comment on whether
 the factors for the granting of variances
 to water bodies in the Great Lakes
 System should be different than those
 for granting variances in other waters of
 the United States and, if so, the
 scientific rationale for such a difference
 (see also section o.ii, below), EPA also
 seeks comment on whether the
 requirements under procedure 2.C of
 appendix F that cost-effective and
 reasonable best management practices
 for nonpoint source control be
 implemented should, as proposed, be
 limited to best management practices
 the permittee can implement or should
 include all best management practices
 required by a State or Tribal regulatory
 program for the area in question.
   d. Another option considered by the
 Technical Work Group required the
 State or Tribe to provide for an
 additional period of public comment.
 This public comment period would
 have been initiated within 30 days of
 receipt of a completed variance
 application and would have given the
 State public input prior to making a
 preliminary decision on a variance
 request. EPA has not included this
 additional public comment period in
 the proposed Guidance because two
 opportunities for public comment are
 provided, first, during the comment
 period associated with the notice of
 receipt of the variance application, and
 second, during the public notice of the
modification of the permit, and because
an additional comment period was
considered to be unnecessary and pose
an undue administrative burden on the
States^
  EPA requests comment on whether
there is a need for public comment early,
in the variance process and, if so, how
that need can be met without posing an
undue administrative burden on the
State and Tribal governments.
  e. Another option considered by the
Technical Work Group, would have
required States and Tribes to public
notice variance applications in all eight
Great Lakes States. The proposed
Guidance requires the Great Lakes
States and Tribes to notify the other
Great Lakes States and Tribes of the
preliminary decision. EPA decided
against proposing to require the wider
public notice requirement because it
was considered to be unnecessary, to
pose an undue administrative burden on
the States and to have the potential to
unreasonably lengthen the variance
review and approval process.
  EPA requests comment on whether
wider public notice is necessary and, if
so, how it can be accomplished without
posing an undue administrative burden
on the States and without having the
potential to unreasonably lengthen the
variance review and approval process.

15. Request for Comments
  EPA specifically invites public
comment on these additional issues that
received discussion during the drafting
of this proposal:
  a. Although the proposed Guidance
emphasizes that variances are based on
water quality standards, these variances
are implemented for point sources in
the permitting process. The three-year,
expiration of water quality standards
variances is based on-the triennial water
quality standards review cycle and
makes sense for a provision that
requires a modification of standards.
However, NPDES and State- or Tribally-
authorized permits are normally granted
for five years. Because the variance •
would be implemented in a permit, it
has been suggested that the variance
requirements include a provision,
allowing variances to be granted for up
to five years, with a reassessment after
three years. EPA invites comment on
this suggestion.
  b. Some States have suggested using
criteria similar to the first five elements
(procedures 2.C.1 through 2.C.5 of
appendix F of part 132) to establishing
variances to use classifications for entire
water body segments or portions of
water body segments. This could be
done, for example, where historic
mining practices have impaired water   ,

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                 Federal  Register./-' Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
 quality and designated uses, but the    ,
 State 01 Tribe has considered the,
 problems correctable within a
 reasonable planning period (the 20-year,
 section 208 planning period, for  .  ;
 example). In such situations, the State ,
 maintains goal uses and underlying
 criteria while recognizing existing
 ambient conditions by adopting
 ambient-based criteria which ha,ve
 specific expiration dates. This approach
 allows a State or Tribe to incorporate
 the criteria modified by the water body
 variance into all appropriate.NPDES
 permits on the specific water body. This
 approach might be used to relieve   :-
 dischargers from the burden of     .   .
 demonstrating that individual variances
 are appropriate and allows multiple
 dischargers to pool their resources to ,
 make a demonstration that a variance
 based solely on water body conditions
 is appropriate. This approach might also
 decrease the State or Tribal burden of,
 reviewing multiple applications for
 discharger-specific variances based on
 water body conditions.
   EPA believes that the water body
 variance may provide a way of applying
 the use-based 40 CFRl31.10(g)
 elements in a manner that makes sense
 and meets the objectives of the water
 quality standards variance policy. EPA
 requests comment on this bifurcated
 approach of dividing variances into two
 categories: water body variances to  .
 which the first five elements
 (procedures 2.C.1 through 2.C.5  of
 appendix F) apply, and discharger-
 specific variances to which the
 '. substantial and widespread economic
 and social impact element (procedure
 2.C.6 of appendix F) applies.
   EPA additionally requests comment,
 pn whether it would be appropriate to
 require, as a condition to granting the
 water body variance referenced above,
 that a TMDL be developed for the water
 body at issue based, on pre-variance
 criteria. See section VHI.C on TMDLs,
. especially phased TMDLs at section
 VII!.C.2.b, for further information on .
 what this requirement would entail. The
 rationale for conditioning a water body
, variance with the TMDL requirement is
 that, before all dischargers are given
 relief from applicable water quality
 standards, there should be a plan in
 "place through the TMDL process to
 ultimately achieve the applicable water
 quality standards. EPA also requests
 comment on the maximum tirneframe
 for completing such a required TMDL if
  one should be required. For example,
. making a water body variance non-
  renewable would have the effect of
  requiring a TMDL be developed within
  three years (or by the expiration of the
  variance). Permits could then be written
 to be in.conformance with the TMDL
 and a variance would no longer be
 •necessary.    ;
   c. Because variances may not be     :
 granted if they do not comply with the
 proposed Antidegradation Policy at 40
 •CFR 132, appendix E, a variance will
 not be allowed if it results in lowering
 of existing water quality unless in
 compliance with the antidegradatiqn •-
 requirements. Because of this
 restriction, because variances are subject
 to EPA review, and because EPA will.
 consult with the Fish and Wildlife
 : Service regarding approvals of water
 quality standards pursuant to a recently
 signed agreement, it does not appear
 that variances would be granted which
 would jeopardize threatened or
 endangered species. EPA requests
 comments on whether additional
 safeguards are needed to protect       -
 threatened or endangered species.
   d. Procedure 2.C.6 of appendix F
 allows a water quality standards
, variance to be granted if controls would
 cause widespread social or economic
 impact, EPA has traditionally used
 many of the same ecoridmic measures to,
 determine social or economic impact
 when evaluating use removal and water
 quality standards variance requests as it-
 uses to determine important economic
 or social development when evaluating
 the allowable lowering of water quality
• under the antidegradation policy. EPA
 requests comment on whether further
 guidance on how to determine social or
 economic impact is needed, and, if so,
 whether social or economic impact.
 should be interpreted similarly to
 important economic or social
 development as discussed in section '_
 VII.F. 5 of this preamble
 (Antidegradation Demonstration). EPA
 also requests comment on whether
 further guidance is necessary on the
 interpretation of widespread, and, if so,
 whether the determination of
 widespread should be similar to the
 determination of economic area
 discussed in section VII.F.5 of this
 preamble (Antidegradation
 Demonstration),
    e. As written, the variance provision
-- only provides for variances for
 applicants for NPDES permits, not
  section 404 permits for the discharge of
  dredged or fill material. As a practical
  matter, few if any section 404   .
  dischargers would be eligible for a water
  quality standards variance, as    .     :
  envisioned in the proposed Guidance,
 , because most section 404 discharges are
  short-term, one-shot activities and'
  therefore the applicants would be new
  dischargers or recommencing
  dischargers. EPA solicits comments on
 -whether there is any rifeed to expand the
 proposed variance procedure'to address
 non-NPDES permits.

 C. Totdl'Maximum Daily Loads

 I/Background    .
  '. One approach to achieving the water
 quality goals of the Glean Water Act is
 to ensure that technology-based effluent
. limitations are established in NPDES
 permits. Such limitations are based on:
 (1) Effluent guidelines established by
 EPA for major industrial categories
 under section 304 of the Clean Water
 Act, (2) the best professional judgement
 of permit writers for industrial point
 sour'ces not subject to effluent
 guidelines or, (3) secondary treatment
 requirements for POTWs. Where  "
 existing technology-based limitations, '
 together with other State or Federal
 pollution controls are insufficient to
 attain and maintain water quality:   .
 standards,  additional water quality-
 based controls are necessary. Section
 303(d) of the Clean Water Act requires
 the establishment of total maximum
 daily loads (TMDLs) for waters that are "
 not expected to meet-applicable State
 water quality standards despite •.-."
 implementation of existing or planned
 pollution controls.  .  .
 2. National Approach        •
   a. General Approach to TMLIL
 Development. EPA National policy on
 theldevelopment, review and approval
 of TMDLs is contained in the Water
 Quality Planning and Management
 regulation, 40 CFR part 130. Additional
 guidance is provided in the "Technical
 Support Document for Water Quality-
 based Toxic Control,"  (TSD) EPA,505/
 2-90-001, March 1991 and the    :
 "Guidance for Water Quality-based'
 Decisions: The TMDL Process/'.EPA
 440/1-91-001, April 1991.
   TMDLs are established to meet the
 water quality criteria and designated
 uses that apply to a given water body.
 The TMDL quantifies the maximum    ,
 allowable  loading of a pollutant to a
 water body, and allocates this loading
 capacity to contributing point and
 .nonpoint sources (including natural
 background) such that water quality
 standards will not be violated. A TMDL
 must incorporate a margin of safety
  (MOS) that accounts for Uncertainty
 about the relationship between
 pollutant loads and water quality.
 TMDLs may. involve a single pollutant
  source or multiple sources (e.g., point
  sources and nonpoint sources) and may
 be established for geographic areas that
 •range in size from large watersheds to
 , relatively small water body segments.
  EPA encourages the development of
  TMDLs that reflect tradeoffs betvy een

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  20928
Federal  Register  /  Vol.  58,  No. 72 / Friday, April  16, 1993 / Proposed Rules
  point and nonpoint sources where such
  tradeoffs achieve the desired  .
  environmental result and are cost-
  efficient,
   EPA guidance suggests that protective
  assumptions be used in developing
  TMDLs and recognizes that use of such
  conservative assumptions may provide
  Uw MQS required. Where necessary, an
  additional margin of safety can be
  allocated as a separate component of the
  TMDL.
   b. Phased TMDLs, The CWA assigns
'  th« primary role for TMDL development
  to the States and the Indian Tribes. EPA
,  provides guidance to the States and
  Tribes and is required to review TMDLs
  the States and Tribes develop. If EPA
  disapproves a State or Tribal TMDL, the
  Act authorizes EPA to establish a
  revised TMDL,
   Gflntrally, a phased approach to
*  TMDL development should be used
  when significant nonpoint source or
  complex water quality problems
  involving many sources are present.
  Under a phased approach, a TMDL is
  davaloped and implemented using best
  availftblo information, professional
  Judgement and a margin of safety that
 it fl*cts uncertainties. The phased
 TMDL Incorporates a monitoring plan
  and a schedule for assessing the
  a'tainiaent of standards after the
 ImplemtrataUoa of pollution controls. If
  standard* are not attained after
 implementation of the TMDL, the data
 obtained through the monitoring
 program can be used to develop a
 revised TMDL.
   TMDLs established using the phased
 approach allow EPA and the States to
 move forward and implement water
 quality-based control measures when
 limited information is available. Thus,
 for example, TMDLs that address
 pollutants originating primarily from
 nonpoint sources can be established
 using the phased approach even though
 tho ability to analyze and model
 nonpoint source loadings, pollutant fate
 and transport and actual water quality
 effects is not as developed as the ability
 for point source loadings. Under the
 phased approach the statutory
 requirements of section 303 (d) can be
 met even in the absence of extensive
 data on cause and effect relationships
 and the effectiveness of control
 measures, particularly best management
 practices (BMPs) for nonpoint sources.
   One situation where a phased
 approach is used is where a TMDL
 incorporates nonpoint source
 allocations based on future
 implementation of nonpoint source
 control requirements. Such phased
 TMDLs must include documentation
 concerning the nonpoint source control
                      implementation plan and the basis for
                      projecting nonpoint source load
                      reductions. EPA will approve such
                      TMDLs only when there is a reasonable
                      likelihood that LAs will be achieved in
                      a reasonable time frame.
                        A phased TMDL could be used in
                      situations where a point source is
                      discharging to a water that does not
                      attain standards due in part to nonpoint
                      source loadings. One option for TMDL
                      development would be to identify BMPs
                      that are expected to reduce nonpoint
                      loadings such that the nonpoint source
                      contributions alone would result.in
                      attainment of water quality standards
                      with a margin of safety. If a State or a  .
                      Tribe implements a program reasonably
                      anticipated to result in BMP
                      implementation, it could establish LAs
                      in a TMDL that reflect load reductions
                      expected through BMP implementation.
                      The WLA in the TMDL for the point
                      source could allow a discharge at a
                      concentration equal to (or in some cases
                      greater than) criteria or values.
                       EPA's approval of TMDLs (including
                      phased TMDLs) is case-specific, and
                      depends on a review of the technical
                      assumptions and procedures used to
                      develop the TMDL and, as noted above,
                      whether it is reasonable to expect that
                      anticipated nonpoint source controls
                      will be implemented and be effective.
                       c. Pollutant Degradation. One factor
                      that needs to be considered hi
                      establishing  TMDLs is the possibility of
                      degradation  of a pollutant after it is
                      released to surface waters. If there were
                      no degradation reactions taking place in
                      aquatic ecosystems (i.e., if all pollutants
                      behaved conservatively), every pollutant
                      released to the environment would be
                      present at some location. However,
                      there are natural physical, .chemical and
                      biological processes that serve to
                      degrade some pollutants and ameliorate
                      their impacts. These natural processes
                      include hydrolysis, oxidation, photo-
                      transformations (photolysis), and
                      biological transformation. Degradation
                      is different from pollutant transport,
                      which simply involves the movement of
                      a chemical in the environment and is
                      discussed below.
                       Existing EPA policy regarding the
                      environmental fate of pollutants is that
                     where data are available to support
                     estimation of degradation rates, it is
                     appropriate to include these
                     calculations when establishing TMDLs.
                     Two EPA references providing
                     information on environmental fate are  •
                     Processes, Coefficients and Models of
                      Simulating Toxic Organics and Heavy
                     Metals in Surface Waters (EPA/600/3-
                     87/015; June 1987) and Water-Related
                     Environmental Fate of 129 Priority
 Pollutants (EPA-400/4-79-029a,b;
 December 1979),
   d. Pollutant Transport. Pollutant
 transport includes dispersion of
 pollutants, in ambient waters, and the
 movement of pollutants from the water
 column to bottom sediments or to the
 air. Transport within the water column
 is relevant in establishing TMDLs where
 States require criteria attainment at the
 edge of allowed mixing zones. In such
 circumstances it is necessary to
 calculate pollutant concentrations that
 will exist at the edge of the mixing zone
 as 'a result of discharge-induced mixing,
 currents and turbulence in the receiving
 waters and pollutant dispersion.
 Similarly, volatilization that occurs.
 before the edge of a mixing zone can be
 considered in determining the amount
 of discharge that will not cause an
 exceedance of water quality standards at
 the edge of an applicable mixing zone.
 Transfers to sediment may be taken into
 consideration in establishing a TMDL,
 but care must be taken to also account •
 for pollutant release from sediments,

 3. Development of the Proposed
 Guidance
  a. The Proposed Guidance. The Great
 Lakes Technical Work Group attempted
 to devise a single, consistent approach
 for developing TMDLs to be used by all
 States and Tribes in the Great Lakes
 System. Current practice in the eight
 Great Lakes States includes distinct
 technical procedures and program
 approaches which differ in scope, scale,
 emphasis and level of detail. Although
 there was broad general agreement on
 dealing with TMDL development for
 Open Waters of the Great Lakes
. (OWGLs), the technical work group
 found it difficult to agree upon a single
 set of procedures and processes to
 establish TMDLs for tributaries. The
 underlying reason for the inability to
 reach a technical consensus is that there
 are at least two views on how to-meet
 the Clean Water Act's requirements for
 establishing TMDLs for tributaries on a
 large basin scale. One focuses first on
 evaluating the basin as a whole,
 followed by site-by-site adjustments.
 The other focuses initially on evaluating
 limits needed for individual point
 sources with supplemental emphasis on
 basin-wide considerations as necessary.
£oth approaches are consistent with the
 Clean Water Act, but result in different
 methodologies for TMDL development.
 Each option provides that TMDLs be
established on a case-by-case basis by
the authorities responsible for
 developing TMDLs.
  The Steering Committee proposed to
include two options (Option A and
 Option B) in the proposed Guidance and

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                 Federal Register / Vol. 58, No.  72 /Friday, April 16, 1993 / Proposed Aides,
                                                                    20929
 to solicit comments widely on all
 aspects of both options. Option A is
 presented as procedure 3A of appendix
 A to part 132; Option B is presented as
 procedure 3B. Option A utilizes the first
 approach described above and is similar
 to the approach currently used by New
 York State. Option B utilizes the second
 approach described above and is similar
 to the approach used by several States
 within EPA Region V. Option B
 includes' specific formulae and
 assumptions to be used in deriving
 TMDLs.           .     :-'";'.
   The proposed Guidance is not
 intended to be a completely
 comprehensive set of provisions
 addressing all aspects of section 303 (d)
 implementation by the States.        ;
 Accordingly, such matters as required
, submission by States and Tribes of lists
 of waters needing TMDLs, are not
 addressed in the proposed Guidance.
 Current National regulations at 40 CFR
 part 130, Would continue to apply in the
 Great Lakes States.
   Explicit guidance on deriving
 nonpoint source load allocations and
 implementing nonpoint source controls
 are not included in the proposed
 Guidance, While both options provide
 general guidance on how TMDLs;should
 consider nonpoint source loadings,
 existing EPA regulations and technical
 guidance should be used for these
 purposes.
   b. Overview of Option A and Option
 B. Both options propose procedures for
 .establishing TMDLs for open waters and
 connecting channels and separate
 procedures for establishing TMDLs for
 tributaries to the Great Lakes, Both
 options contain general conditions
 applicable to all TMDL development,
 and special conditions regarding control
 of bioaccumulative chemicals of
 concern (BCCs). Options A and B are
 essentially the same with respect to
 general conditions of TMDL
 development, control of BGCs and the
 development of open waters and
 connecting channels.           ,
   The main differences between :the two
 options exist in the development of
 TMDLs for tributary discharges. These
 differences are primarily in the
 development of wasteload allocations
 and focus on the degree of specificity
 contained in the procedure and the use
 "of mixing zones and margins of safety in
 each, option. Option A and B are
 discussed in greater detail below.
 4. General Conditions of Application
   Options A and B both contain the
 same ten general conditions of
 application. The general conditions
 apply to every TMDL established under
 the GLWQI and assure that TMDLs
employ consistent methodologies,
analytical approaches and assumptions.
  a. General Condition 1, General
condition i establishes that, at a
minimum, TMDLs must be established
.for each pollutant for which itis
determined that there is a reasonable
potential' that a discharge will cause, or
contribute to an exceedance of WQS and
where the sum of existing point and
nonpoint .source (including natural
background) loadings exceeds the
loading capacity of the water under .:
investigation minus any margin of
safety. For additional guidance on when
TMDLs must be prepared, see 40 CFR
130.7.
  b. General Condition 2, General
condition 2 establishes that aiTMDL for
a given pollutant must implement all
criteria for that pollutant that are
applicable to the water body in
question. As a practical matter, this will
normally involve identification of the
most stringent applicable criterion and
development of a TMDL based on its
implementation. General condition  2
also establishes that a TMDL must
consider point and nonpoint sources
and that the sum of the WLAs for point
sources, LAs for nonpoint sources, and
any specified MOS and reserve capacity
for future growth, shall not exceed the
loading capacity. This general condition
assures TMDLs will provide for
attainment of water'quality standards.
  c. General Condition 3. General
condition 3 recognizes that TMDLs  may
be developed for downstream waters
that will include WLAs for sources
already covered by a TMDL of different
geographic scope. For .example, a •
source-specific TMDL may already be in
place, when a basin TMDL is developed.
The condition requires that WQBELs in
NPDES permits be consistent with the
most stringent of the WLAs included in
any EPA-approved or EPA-established
TMDLs. This assures that water quality
standards will be met throughout a
drainage basin.
  d. General Condition 4. General  ,
condition 4 requires that each TMDL  .
describe the manner in which a MOS is
provided and that MQSs be established
either by setting aside a portion Of the
loading capacity or by using
conservative modelling assumptions in
deriving"the TMDL.              ..
  e. General Condition 5. .General
condition 5 provides that States may
employ the provisions of section 510 of
the CWA to establish TMDLs more
stringent than those developed pursuant
to the proposed procedures. This
condition simply recognizes the
reserved right of the States to require
more stringent controls than those
required tinder the rWA.  '' -
  f. General Condition 6. General .
condition 6 establishes that TMDLs
must consider contributions to the water.
column from sediments inside and
outside mixing zones. Although TMDLs ,
are calculated on the.basis of pollutants
in the water column, all sources of •
pollution, including sediment re-release
to the water, column, must be
considered during the establishment of
the TMDL..
  g. General Condition 7. General
condition 7 clarifies that the
implementation procedure for TMDLs
does not include explicit methods or
requirements  for determining controls
necessary to ensure attainment of water
quality standards during wet weather
events. Nonpoint sources, storm water
discharges and combined sewer
overflows can typically be expected to
have the greatest impact On receiving
waters din-ing storm events. While
implementation procedures specific to
wet weather events are not included in
this Guidance, TMDLs must consider
pollution resulting from these wet
weather events. The procedures
contained in the proposed Guidance
may be appropriate in some case-
specific applications.
  h. General Condition 8. General
condition 8 establishes the procedure
for determining representative
background concentrations of
pollutants. Procedures and assumptions
for calculating or identifying -   v     •
background assure that background
concentrations will be consistently
considered as TMDLs are established.
The first  step  in this process will be
selecting one  of three possible data sets:
Representative caged fish tissue data,
representative ambient monitoring data,
or representative pollutant loading data.
While ambient monitoring data are
generally preferred over other data
sources, there may be instances where
the ambient data are not available, or
because of limits in analytical detection
methods, are  not as informative or   -  '
reliable as either caged fish tissue or
pollutant loading data. Care must be
taken to ensure that the data represent,
or are adjusted to represent, ambient
conditions of .concern in the TMDL
development process. After a data set is
selected, a geometric mean is taken of
representative data points.   -
   With respect to pollutant loading
data, the geometric mean is taken of
pollutant loading data from individual
sources; the individual means are then
added to estimate total loading to the ;
receiving water. Background .
concentration is calculated by dividing
total loadings by the volume of water
available at the appropriate design flow
(which will vary depending on the

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Federal  Register / Vol. 58, No.  72 I Friday, April 16, 1993 / Proposed Rules
 criterion being implemented through
 TMDL establishment) at the point
 immediately upstream of the watershed,
 water body or water body segment for
 which the TMDL is being established.
   Calculating the background
 concentration of a pollutant using caged
 fish tissue data or ambient monitoring
 data generally does not require a
 separate determination of the pollutant's
 degradation or transport upstream of the
 water body for which the TMDL is being
 prepared. However, when actual
 loadings are used to derive background
 concentration, the assumption of
 conservation of mass throughout the
 sagmont of interest may not be accurate
 for some pollutants. Pollutant
 degradation or transport studies may
 show that the substance does not
 contribute to a problem after a certain
 point downstream from the original
 point of introduction into the water
 body. The Steering Committee's
 proposal on environmental fate
 prohibited accounting for the
 degradation or transport of a pollutant
 that occurs outside of the mixing zone
 for a point source, but that was coupled
 with the Steering Committee's choice of
 ambient monitoring data to determine
 background, EPA believes that
 accounting for degradation and
 transport outside of the mixing zone
 may be appropriate in circumstances
 when background concentrations are
 being calculated using actual loadings to
 the system of interest. Accordingly, the
 proposed Guidance provides for
 consideration of pollutant degradation
 and transport in such circumstances.
 EPA invites comments on this issue.
  Individual data points may not be
 representative for a variety of reasons.
 Best professional judgement will be
 used to determine which data points are
 acceptable. For example, a data point
 may not be acceptable if reported as
 below detection if the detection leve.l
 itself is not reported. The permitting
 authority should also consider detection
 levels and quantification levels of data
 whan determining what data are
 acceptable. Recent data with improved
 detection or quantification levels may
 be acceptable, while some older data
 with poorer detection or quantification
 levali may render it unacceptable.
  Care should be exercised in
 determining what fish tissue data are
 representative of background pollutant
 concentrations. When using caged fish
 tissue data to calculate background
concentrations, the geometric mean of
 representative fish tissue analysis is
 taken and that value will generally be
 divided by the bioaccumulation factor
calculated for the pollutant in question
pursuant to the proposed methodology
                      in appendix B of part 132 to yield
                      estimated ambient concentrations.
                      However, where fish tissue data from a
                      single species are used to calculate
                      background calculations, and where
                      bioaccumulation data exist for that
                      species, it may be more appropriate to
                      use a species-BAF rather than a BAF
                      derived through the methodology in
                      appendix B. To be acceptable, the fish
                      must have lived within the geographic
                      area long enough to have reached or
                      approached steady state conditions in
                      terms of bioaccumulation. Steady state
                      occurs when the level of pollutant
                      uptake is approximately equal to the
                      level of pollutant elimination from the
                      fish. EPA guidance on these calculations
                      and considerations is provided in
                      Assessing Human Health Risks from
                      Chemically Contaminated Fish and
                      Shellfish: A Guidance Manual (USEPA,
                      September,  1989, EPA-503/8-89-002).
                      EPA intends to provide further guidance
                      through finalization of a draft document
                      entitled Assessment and Control of
                      Bioconcentratable Contaminants in
                      Surface Waters (March, 1991).
                        Within a given data set, some data
                      points may indicate that the pollutant
                      was not present at levels capable of
                      being detected by the analytical method
                      used. For these data points the true
                      concentration of the pollutant could be
                      anywhere between zero and the
                      detection level of the method. Other
                      data points may  indicate that the
                      pollutant was detected, but at levels
                      below which the analytical method is
                      capable of reliable quantification. For
                      these pollutants, the true concentration
                      will be between the detection level and
                      the quantification levels of the
                      analytical method. Finally, there may be
                      data points showing reliably quantified
                      levels of the pollutant. Consistent with
                      the Steering Committee's intent, the
                      proposed Guidance would require, that
                      all data points showing that the--
                      pollutant is not present at the detection
                      level be considered to represent a
                      concentration of one-half of the reported
                      detection level, provided that at least
                      one data point is above the level of
                      detection. Similarly, for data points that
                      show that the pollutant is present at
                      concentrations between the detection
                      level and the quantification level, the
                      proposed methodology would provide
                      for use of a concentration equal to the
                      mid-point between the reported
                      detection level and the reported
                      quantification level. While this
                      condition was not addressed by the
                      Steering  Committee proposal, EPA  -
                      believes that.all these conditions are
                      necessary and appropriate for dealing
 with values that are not detected or not
 quantified.
   EPA believes that it is necessary to
 accord some weight to data points
 below the detection level or
 quantification level in calculating a
 geometric mean; to do so requires the
 selection of a concentration value
 within the range of possible .values, EPA
 is proposing to use one-half of the
 reported detection level and also the
 mid-point between the reported
 detection level and reported
 quantification level as reasonable
 estimates of actual concentrations.
 Where data are described as below the
 detection level, EPA could also have
 proposed to use either zero or the
 reported detection level. Use of the
 reported detection level in such
 instances would result in the lowest
 WLA for point sources, and while
 certainly protective of water quality,
 may require a greater reduction, in point
 source loadings than necessary. Use of
 zero in such instances would result in
 the greatest WLA for point sources but
 may not assure the attainment of water
 quality standards. Because there is no ^
 way to reliably quantify pollutant
 concentrations below the detection
 level, EPA believes that using one-half  !
 of the reported detection level is a
 reasonable balance of the available
 options.                   .
  The proposed Guidance specifies,
 however,  that where all acceptable
 available data points in a data set are
 reported as below detection levels, then
 all the data for that data set are assumed
 to be zero.                       •
  EPA also believes that a similar
 reasoning supports the use of the mid-
 point between the reported detection
 levels and reported quantification level.'.
 Under the proposal, States could always
 choose a more stringent approach as a
 general matter or in establishing
 individual TMDLs.
  The proposed Guidance includes a
 definition of detection level that is  ,
 identical to the definition long used by
 EPA, and published at 40 CFR 136.2(f).
 There is no similar long-established
 definition of the term quantification
 level. The proposed definition is the
 concentration at which a particular
 substance can be quantitatively
 measured. EPA solicits comment on   •
 whether this definition should be made
 more precise and; if so, how it should
be changed. EPA is particularly
interested in whether a particular degree
 of confidence should be specified.
  A State's use of procedures for  ,
estimating representative background
concentrations of pollutants shall be
reviewed by EPA on a case-by-case basis
when it approves or disapproves State

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                 Federal Register / Vol. 58, No.  72 / Friday, April 16,1993 / Proposed Rules   	_JQ931
 TMDLs submitted under section 303(d).
 The proposed requirements for    .
 determining representative background
 concentrations are based on the current
 practices of a majority of the Great Lakes
 States.    -.  ;.  . .•'         v  .,•  •
  ,i. General Condition 9. General
 condition 9 establishes that npnpoint
 source load allocations must be based  ,
 on existing or anticipated increased
 loading rates unless a lower loading rate
 is reasonably.expected to occur within
 a reasonable period of time as a result
 of implementation of best management
 practices or other control measures.
 This general condition assures that,
• nohpoint source contributions will be
 consistently considered as  TMDLs are _
 established and that anticipated .
 reductions in loadings from nonpoint
 sources will be used in establishing
 TMDLs only where these reduced
 loadings are reasonably expected to
 occur.          "               .  . .".
   j. General Condition 10.  General
- condition 10 requires that if WLAs are
 .expressed as a concentration of a
 pollutant in a discharge, that the TMDL
 also specify the point source effluent
 flow assumed in deriving the WLA. This
 will facilitate establishment of mass
 loading limitations in NPDES permits
: .pursuant toi lie proposed Guidance.
 This general condition assures that
• common assumptions are used in
 establishing TMDLs and corresponding
 NPDES permit limits.         '
 •  k. General Condition 11. General
 condition 11 establishes that once a •   ,
 ' TMDL is in place for a water body, a
 riew source or new discharger can locate
 on the. water body  only if its loading is
 " consistent with the existing TMDL (i.e.,
 the TMDL included a reserved
 allocation for future growth)  or the
 TMDL is revised to include an
 allocation for the new source.,This
 general condition assures that the
 impacts of new sources will be
 considered.
 5. Special Provisions for BCCs
    Bioaccumulative chemicals of
 concern (BCCs) are those chemicals,
 which'after considering metabolism and
 other physicochemical properties which
 might enhance or inhibit
 bioaccumulation, have a BAF of greater
 than 1000. Although levels of certain
 BCCs have significantly declined in
 recent years, -the rate of decline has
 diminished and contaminant levels  •
 appear to be levelling off. It is estimated
 that .under current loadings it will take
 years, perhaps decades, for fish tissue
 concentrations of certain BCCs to
  decline to levels that would allow
 unrestricted consumption  of fish in the
 Great Lakes. Due to the unique
 characteristics of the Great Lakes,
.primarily long pollutant residence
 times, the Steering Committee wished to
 assure that similar problems did not
 occur in the future for other BCCs. A
 more detailed description of the
 .rationale for,the proposed increased    ,
 controls on BCCs is provided in section
 I.D of this preamble.
   a. Reason for Restricting Discharge, of
 BCCs. The proposed Guidance would
 restrict the introduction and
 accumulation of BCCs in the Great
 Lakes System by requiring, in general,
 that mixing zones for existing     .-"•'.
 discharges of BCCs be eliminated within
 10 years and for new sources, that no
 mixing .zone be provided. This proposed
 restriction reflects the Steering   v   .
 Committee's belief that every reasonable
 effort should be made to reduce all   .
 loadings of BCCs. In particular,  the
 Steering Committee believed mixing
 zones should be eliminated for BCCs as
 a way to reduce mass loadings to the
 Great Lakes, The Steering Committee's
 approach is discussed further in section
 I.D of this preamble. EPA is seeking
 comment on whether the elimination of
 mixing zones over a 10-year period is an
 appropriate mechanism for addressing
 concerns with BCCs in the Great Lakes
 System.            ,         •'
   . b. Elimination of Mixing Zones for
 BCCs. Mixing zones are areas within the
 water body where the effluent mixes
 with the receiving water and where
 chronic water quality standards, are not
 required to be met. Mixing zones for
 existing discharges of BCCs are
 proposed to be eliminated after a ten
 year period, after which time
 concentrations in any discharge which
 has the reasonable potential to.cause or
 contribute to an excursion above a BCC
 criterion of value must be at or below
 the water quality criterion or value for
 the bipaccumulative pollutant. This ten
 year time period equates to two five- -
 year terms for NPDES permits. This time
 period represents a reasonable period
 for implementing the phase out that
 works toward the Great Lakes Water
 Quality Agreement goal of virtual
 elimination of persistent toxic
 substances.                          .
   The concept of eliminating mixing
 zones for BCCs is consistent with
 current National regulations and
 guidance and the Great, Lakes Water   .
 Quality Agreement. EPA regulations
 provide that States may, at their
 discretion, provide for mixing zones as
 part of their State water quality
 standards. The TSD recommends that
 States prov^e a definitive statement in
 .their water quality standards as to
 whether or not mixing zones are     . .
 allowed and states. As our _^.,       „
understanding of pollutant impacts on
ecological systems evolves, there insy be
dases identified where no mixing zone .
is appropriate. In addition, a general -
principle of the GLWQA at Annex 2
Paragraph 2.(d) supports the elimination
of point source impact zones (mixing
zones) for toxic substances.
  c. New Sources. New sources of BCCs
are riot afforded the phase-in time. New
sources that have a reasonable potential
to cause or contribute to  an excursion
above a BCC criterion or value are to
achieve the criterion/value at the
discharge point at the time of  -
commencing discharge. •
  d. Mixing Zones During the Ten Year
Phase Out. Until mixing zones for
existing sources of BCCs are phased out,
TMDLs that include WLAs for such -,--,
sources would be established using the
mixing zone provisions set forth in each
option or, where there are no specific
provisions, in accordance with x
applicable requirements of State law.
  e. Exception to the Ten Year Phase
Out of Mixing Zones. Both options    *
provide an exception to the required
elimination of mixing zones (sections
B.4 of both procedures 3A and 3B).
Limited mixing zones may be granted
beyond ths ,10-year period where water
conservation measures leading to
overall load reductions are used. When
a facility implements water
conservation measures, the
concentration of the pollutant in the
effluent may increase while the mass of
the pollutants discharged does not. The
Steering Committee believed that the
effect of eliminating mixing zones could
discourage permittees from utilizing •
water conservation measures, because of
the potential for pollutants to increase -
in concentration in the effluent, causing
a higher possibility that compliance
with the concentration-based effluent
limitation would not be  achieved. The
Steering Committee believed that    "
because water conservation is desirable,
that an exception may be appropriate in
certain circumstances. The primary
concern for BCCs is the mass of the
pollutant entering the Great Lakes  •
System. Concentration levels would still
be controlled to assure no short term
affects in the mixing zone. In no event,
however, may the State grant mixing
zones larger than those available when
non-BGCs are discharged pollutants.
6. TMDLs for Open Waters of the Great   ,
•Lakes -"-  ..-  .-'- ..-, •'.. •  v,-.'" -,.'.  ;..   ...',,-:
   Both options describe the process fpr ,
developing TMDLs for OWGLs; inland;
lakes and other waters of the Great >
Lakes System that exhibit lentic ,  —
conditions (section 3.G of both     -, •? _•.
procedures 3A and 3B). In both options,

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  20932
Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993  / Proposed Rules
  general guidance for development of
  TMDLs on a lake-wide basis is
  provided,
   a. Point Source Mixing Zones for
  Chronic Criteria and Values. Both
  options provide that absent a mixing
  zone study, individual wasteload
  allocations for point sources not be
  based on • mixing zone larger than is
  provided by mixing one part effluent
  mixed with ten  parts lake water
  (containing background concentrations
  of pollutants). A smaller mixing zone or
  rato discharge may be deemed
 niceisary to meet criteria and values,
   The 10:1 mixing factor was derived
 from mixing zone studies conducted for
 tho Milwaukee Metropolitan South
 Shora wastewater treatment plant and
 for the Green Bay Metropolitan
 wastowater treatment plant. For these
 cases, it was shown that the ten to one
 mixing factor represents an area of
 mixing where the velocity and
 momentum associated with an effluent
 being discharged from the end of a pipe
 is dissipated and any further dilution or
 mixing which then occurs is associated
 only with the typically slower natural
 process of diffusion, wind, temperature
 or current induced dispersion. The
 mixing zone assumption for open lake
 discharges accounts for background
 concentrations in the lake and
 essentially bases the TMDL on meeting
 criteria and values when one part
 effluent is mixed with ten parts lake
 water. Option A  describes the 10:1
 mixing zone in a narrative format, while
 Option B embodies the concept in a
 formula.
  Under Option  B, for non-BCCs, when
 a party believes that the 10:1
 assumption does not reflect tha actual
 a»a of discharge-induced mixing, a
 different mixing  zone may bs provided
 if the provisions  of section 3.E of
 procoduro 3B are met. Under Option A,
 the mixing zone  available is not
 necessarily constrained by the area of
 discharge induced mixing if it is
 demonstrated that an alternative mixing
 zone is appropriate for protection of
 designated and existing uses and
 implementation of all criteria and
 values.
  EPA invites comment on the relative
 merits of those different formats.
  b. Calculating Load Allocations.
 Under both options, appropriate
 dilution assumptions to be used when
 establishing load allocations for
 nonpoint sources shall be determined in
accordance with  State law on a case-by-
casa basis by the  authority establishing
 tha TMDL.
  c. Protection from Acute Effects,
Option A provides for a cross check to  l
ensure that acute criteria are met within
                      applicable acute mixing zones
                      authorized under State law. The option
                      does not include a specific final acute
                      value (FAV) cap, but instead relies on
                      site-specific analysis of limits necessary
                      to assure attainment of acute criteria
                      and values within the applicable acute
                      mixing zone.
                        To protect against acute effects in
                      mixing zones, Option B requires that.
                      effluent limitations for point sources
                      never exceed the final acute value
                      (FAV). In some circumstances, however,
                      the effluent limit may be required on a
                      case-by-case basis to be more stringent
                      than the FAV to protect against acute
                      effects. The FAV is twice the CMC, as
                      provided in the methodology for
                      derivation of aquatic life criteria and
                      values (appendix A to part 132).
                        d. Procedures When High Background
                      Concentrations are Present. Under both
                      Options, specific procedures are only
                      provided for the situation where
                      background concentrations do not
                      exceed criteria or values. When ambient
                      water quality concentrations do  exceed
                      chronic narrative or numeric criteria or
                      Tier II values, any discharge that has a
                      reasonable potential to cause or
                      contribute to an excursion above a
                      criterion or value should either be
                      prohibited or a multiple source TMDL
                      established that ensures the attainment
                      of criteria or values. Under both
                      Options, the procedures used in
                      developing multiple source TMDLs for
                      discharges to OWGL and other lentic
                      waters are to be developed on a case-by-
                      case basis, consistent with applicable
                     regulatory requirements. There may be
                      situations in which a phased TMDL is
                     most appropriate. In a phased TMDL,
                     best professional judgement is used to
                     derive LAs and WLAs that will lead to
                     attainment of water quality standards
                     with a MOS. However, for example, due
                     to large nonpoint source contributions
                     and uncertainties regarding current
                     loadings and probable success of
                     nonpoint source controls, it is necessary
                     to carefully monitor the effectiveness of
                     the controls developed as a result of the
                     TMDL. The phased TMDL and controls
                     must result in attainment of water
                     quality standards within a reasonable
                     period of time, although during the
                     implementation of controls, there will
                     be a period of time when water quality
                     standards may not be met. Frequent
                     monitoring of the effectiveness of
                     controls, particularly nonpoint source
                     controls, is necessary in order to
                     determine both the validity of the
                     phased TMDL and the ultimate success
                     of controls in attaining wate^quality
                     standards.
                       Under the proposed procedure 9 of
                     appendix F to part 132, compliance
 schedules in NPDES permits for point
 sources are limited to-three years. Thus,
 there is a maximum period of eight
 years after the establishment of a TMDL
 in which permits can be reissued and
 point source limits consistent with a
 TMDL can be attained (five years for the
 expiration of existing permits and three
 years for the permittee to come into
 compliance with a new limit based on
 a TMDL). EPA also believes that in most
 situations it is appropriate to factor
 nonpoint sources reductions  that are
 reasonably expected to occur within an
 8 year time period into a TMDL, absent
 case-specific considerations.
 .  e. Margin of Safety—L Chronic
 Criteria and Values. In situations where
 background concentration do not exceed
 criteria and values, EPA believes that a
 MOS is generally provided through the
 use of a ten to one mixing zone. Given
 the size of the OWGL and other lentic
 receiving waters in the Great Lakes  -
 System, such a limited mixing zone
 provides a MOS with respect  to
 attainment of water quality standards in
 ambient waters. In situations where a
 larger mixing zone is allowed based on
 a mixing zone study, the TMDL must
 include an explanation of how the MOS
 is provided.
   li. Acute Criteria and Values. EPA
 believes that restricting effluent levels to
 less than or equal to the FAV for acute
 criteria and values, provides the needed
 MOS. In other situations, such as
 TMDLs developed under Option A
 allowing larger loadings, the TMDL
 must include an explanation of how the
 MOS is provided.

 7. TMDLs for Discharges to Tributaries
  The principal differences between
 options A and B relate to TMDL
 development for tributaries. The initial
 focus of Option A is on attainment of
 water quality standards in a tributary
 basin, followed by assuring that water
 quality standards are attained at
 discharge points throughout the basin'
 Option A does not specify the size  of
 mixing zones, leaving such
 considerations to existing State
 requirements. Option B, on the other  ,
 hand, has detailed procedures for
 developing tributary basin and source
 specific TMDLs that are applicable
 where background concentrations do
 not exceed water quality standards.
 These detailed procedures include
 specific mixing zone provisions. Option
 B envisions development of tributary
basin  TMDLs at the discretion of the
TMDL authority, or where the  source
 specific procedures are not applicable or
appropriate.
  a. Steady State Mass Balance
Approach Common to Both  Options.

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                Federal Register /Vol. 58, No. 72  /Friday, April 16,  1993 /Proposed Rules
                                                                   20933
 Both options envision predominant use •
 of a simple, stead;yVstate mass balance
 approach. A mass balance approach is a
 method used to approximate the mass of
 pollutants within a water body. It is
 based on the physical law of ,
 conservation of mass thatstates that     ;
 mass cannot be created or destroyed but
 only transformed. This approach
 assumes that the input or mass into the
 system (e.g., through point and  ;
 nonpoint source loadings, atmospheric
 deposition, groundwater seepage) equals
 the loss of mass from the system plus
 any losses due to transformation of mass
 within the system. Because both options
 assume a simple steady state, it-is    _
 assumed that no mass can be
 accumulated in the system. This
 provides for a first approximation of
 allowable loading allocations.
 Subsequent monitoring will identify any
 shortcomings to this approach and
 indicatejwhether revisions are        •
 necessary. Although Options A and.B
 are based on steady state conditions
 which assume fixed low flows, EPA is
 seeking comment on whether the final
 rule should allow the use of more
 sophisticated dynamic flow models.
   b. Design Flows Common to Both
 'Options. Many of the point source.
 dischargers regulated under the Clean
 Water Act discharge effluent           ,
 continuously toflowing streams.
 However, the amount of water available
 to dilute the discharge typically varies
: with the season and with, periodic storm
 or drought conditions.  In deriving
 TMDLs it is necessary to determine the
 stream conditions under which criteria
 and values must be attained. The  .
 criteria and values derived pursuant to
 today's Guidance are not designed to be
 never-exceeded values. Rather, they
 may be exceeded at varying frequencies
 and durations without injury to human
 health, wildlife or aquatic life.'
 '   Both options specify tributary design
 - flows at which criteria and values are to
 be attained. The volume of water
 flowing through the tributary in a given
 time period at the design flow
 conditions is the volume that is
 considered available to dilute all
 pollutants present or introduced into
 the water body. Because of differences  .
 in criteria derivation methodologies, the
 proposed Guidance specifies different
 design flows for chronic aquatic life,
 wildlife, and human health criteria. For
 WLAs based upon chronic aquatic life
 criteria or values^ the hydrologically-
 based 7Q10 flow or the biologically-
 based 4B3 flow is used; for TMDLs
 based upon wildlife criteria or values,
 , the hydrologically-based 30Q5 flow is
 used; and for TMDLs based upon
human health criteria, the harmonic
mean flow is used.        . - .     '
  With respect to implementing chronic
aquatic life criteria using a mass balance;
approach, the proposed Guidance
specifies the use of either the 7Q10
design flow or the 4B3 biologically-
based design flow.
  The 4B3 is that flow determined on a
case-by-case basis that would provide
for an excursion of chronic aquatic life
criteria, over a 4-day averaging period,
only once every three years. This flow;
is selected because criteria developed'
pursuant to procedures in the proposed
Guidance may be exceeded over a 4-day .
averaging period once every three years
without injury to the aquatic ecosystem. •
(See Technical Support Document to
Water Quality-based Toxics Controls, or
TSD)
 ; The biologically-based 4B3 flow can
be calculated by the computer program
DFLOW supported on EPA's computers
at the National Computer Center in   ,
Research Triangle Park, NC. (Further
information may .be obtained from
Assessment and Watershed Protection
Division, U.S. Environniental Protection
Agency, 401 M  St, S.W., Washington,   -.
D.C. 20460)
  The second alternative design flow .
allowed in the proposed rule is the
hydrologically-based 7Q10 flow. The
 7Q10 is the lowest 7-day, average flow
expected to occur on the average once:
in every ten years, based on the period
 of record. Empirical data from
 approximately 60 streams show that the
 7Q10 flow provides a degree of
 protection approximately equivalent to
 the 4B3 flow. Statistics based on stream
. gages operated by the U.S. Geological
 Survey are routinely published. These
 statistics commonly include estimates of
 the 7Q10 for most riverine systems.
   EPA solicits comment on whether the..
 final rule should specify a design flow
 for the purposes of implementing acute
 aquatic life criteria. Current EPA
 guidance recommends use of a IQIO for
 this purpose (Technical Support
•Document for Water Quality-based
 Toxics Control). The design flow would
 be used in conducting acute cross-
 checks under Option A, andln     .
 determining whether the FAV cap is
 sufficient to protect against acute effects
 in Option B.   -,':'-.'           --  <
   Human health criteria represent
 ambient pollutant concentrations that
 are acceptable based on a lifetime (70
 years) of exposure. Accordingly,
 discharges shouldbe regulated such that
 criteria will not be exceeded under
 stream conditions that represent long-
 term average conditions. Current EPA
 guidance recommends, use of the long-
 term harmonic mean flow to implement
human health criteria (TSD). The
harmonic mean flow is the sum of the
reciprocals of individual flow
measurements divided into the total
number of individual flow
measurements.               .
  Since wildlife criteria have not been
implemented by EPA before, there is no
current EPA guidance regarding a
design flow for their implementation.
Based on the recommendations of the
State of Wisconsin and the GLWQI
Steering Committee, EPA is proposing
that a 30Q5 flow rate be used for the
implementation of wildlife criteria. This
is the lowest 30-day average flow that
would occur on the average every five
years based on a statistical review of  .-..-.
historic flow data.
  -The Steermg Committee's starting   ;
point in selecting a 30Q5 flow rate for • •
wildlife criteria was analysis of the    :
7Q10 flow rate currently used in the  •
implementation of aquatic life criteria.
For wildlife, impacts of chemicals with,
a high propensity to bioaccumulate in
aquatic organisms is of greatest concern.
Aquatic organisms comprise a major
portion of the diet of many wildlife   .
species. Because of relatively slow ra.es
of uptake by aquatic organisms of
bioaccumulative chemicals, residues in
the food chain would have a delayed  .
response to increases in ambient
concentrations of chemicals during
short-term periods, such as during low/
flow events. Accordingly, the Steering! ,
Committee judged a 30-day averaging
period was more appropriate than the 7-
day averaging period used in the aquatic
life design flow. The Steering
Committee selected a five-year return
interval as adequate to ensure that
criteria exceedances did not occur too
frequently to interfere with
reproduction of wildlife species, and no
unacceptable adverse effects on the
population would result
  EPA recognizes that the .use of a 30-
day averaging p'eriod is conservative
given the: long time it may take for
bioaccumulative chemicals to reach
steady state in an aquatic organism. EPA
is interested,in receiving comments on
the proposed 30Q5 design flow for the
implementation of wildlife criteria.
Given the long time to equilibrium for r
bioaccumulative chemicals,  EPA
particularly solicits comments on
whether, a 90Q10 flow, the long-term
 (period of record) harmonic mean flow,
or the lowest annual harmonic mean
flow expected to oecur on the average
within a 5 or 10 year period shouldbe. .:
used for the implementation of wildlife
criteria. The latter two alternatives  ;'
 above are iessentially a 365Q5 or
 365Q10, where a harmonic mean rather
 than an arithmetic mean is used.

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 20934
Federal Register 7 Vol. 58, No.  72 / Friday, April  16,  1993 / Proposed Rules
 Comments are requested on these flow
 rates because the harmonic mean is
 recognized as a better predictor of the
 average concentration than is the
 arithmetic moan.
   Tha requirements in the proposed
 Guidance for use of design flow are
 consistent with the recommendations in
 tJie TSD. A more complete description
 of tho selection of design flows, steady-
 state and dynamic modeling
 approaches, and the reasons for the
 requirements in today's proposed rule
 may be found on pages 36. 78-82, and
 appendix D of that document EPA
 invites comment on the use of these
 design flows and on the use of steady-
 state and dynamic modeling
 approaches.
   c. Overview of Option A—L Load
 Inventory. A  load inventory is prepared
 under Option A that documents all
 loadings from point and nonpoint
 sources to the entire basin. Option. A
 allows a number of different data
 sources to be used in calculating
 loadings from point sources: Current
 NPDBS permit limits, calculated limits
 reflecting now technology-based
 requirements, interim limits in an
 enforceable schedule of compliance,
 and actual loadings of pollutants
 determined, for example, through
 discharge monitoring. Tha data source
 actually used in a load inventory should
 ba determined on a case-by-case basis,
 with tha objective of ensuring the
 ultimata success of the TMDL in
 bringing about attainment of water
 quality standards.
  The load inventory also includes
 natural background loadings of
 pollutants, and loadings from nonpoint
 sources It may be particularly difficult
 to assess loadings from nonpoint
 sources. Any uncertainties in this regard
 should be reflected in the margin of
 safety established for the TMDL.
  Pollutants may degrade into non-toxic
 byproducts as they travel from the point
 of discharge to the farthest downstream
 location in the tributary basin. It is
 permissible to discount pollutant
 loadings to the farthest downstream
 point of the basin to the extent that
 degradation can be estimated with
 accuracy.
  it. Loading Capacity. The next step in
 deriving a tributary TMDL under Option
A is to calculate the total loading of
pollutants that can enter the basin and
still ensure attainment of all applicable
 water quality standards at the furthest
downstream location in the basin. When
chronic numeric criteria or values are
available, this loading capacity is
calculated by multiplying the numeric
criterion or value, expressed as a
concentration of pollutant, times a given
                      tributary design flow. As is discussed
                      above, the design "flow varies with the
                      type of criterion or value being
                      implemented. For example, the loading
                      capacity associated with attaining
                      chronic aquatic life criteria is calculated
                      for a design flow representing the lowest
                      7-day average flow that occurs once
                      every 10 years, Tha loading capacity
                      associated with implementing human
                      health criteria or values, on the other
                      hand, is calculated based on the
                      harmonic mean flow of the stream.
                      Thus, for example, if a human health
                      criterion is expressed as 10 milligrams
                      of pollutant per liter of water, and 10
                      million liters of water pass the lowest
                      downstream location of the tributary
                      during a day at the harmonic mean flow,
                      then the loading capacity of the
                      tributary would be 100 kilograms of
                      pollutant per day;
                        Where numeric criteria or values have
                      not been calculated, a case-by-case
                      determination must be made as to the
                      loadings of pollutants to the tributary
                      that are consistent with attainment of
                      narrative water quality criteria and
                      protection of designated and existing
                      uses.
                        If degradation is assumed in
                      calculating the baseline inventory, it
                      should also be assumed in calculating
                      the loading capacity of the tributary
                      basin. This may be difficult, however,
                      since the loading capacity will vary
                      depending on where the pollutants are
                      introduced. Correlation to existing
                      loading patterns will ensure the most
                      accurate estimate of loading capacity
                      given the current discharge situation.
                        iii. Basin Margin of Safety. TMDLs are
                      to be derived with a margin of safety to
                      account for uncertainties. An
                      assessment of uncertainties hi
                      calculating the loading inventory and
                      loading capacity should be  made, and a
                      portion of the basin loading capacity set
                      aside as a margin of safety that reflects
                      the uncertainties presented. Of course, if
                      the loading inventory and loading
                      capacity are initially calculated in a
                      conservative (protective of the
                      environment) manner, then a separate
                      set-aside of loading capacity for a
                      margin of safety may not be necessary,
                        iv. Load Reduction Targets. The
                      loading capacity minus any specified
                     •basin margin of safety is the loading that
                      is available for allocating to all sources
                      (including natural background) of the
                      basin. The amount of load reduction
                      necessary to meet water quality
                      standards at the downstream end of the
                      tributary can be calculated as the
                      baseline inventory load minus the basin
                      loading capacity adjusted by any
                      specified basin margin of safety.
   v. Basin Allocations. Allocations are
 made consistent with load reduction
 targets identified above. TMDLs must
 not include allocations which are not
 reasonably anticipated to be attained. :
 Accordingly, load allocations for
 nonpoint sources should be based on
 current or anticipated increased
 loadings, unless there is a reasonable
 bdsis for assuming that there will be a
 reduction in nonpoint source loadings
 within a reasonable time period. As
 discussed above, EPA will typically
 consider eight years to be a reasonable
 time period. Whatever portion of the
 loading capacity is not allocated to
 nonpoint sources, background, and
 reserve capacity for future growth may
 be allocated to existing point source "
 dischargers,
   vi.  Site-specific Cross-checks. After
 allocations are established to ensure
 attainment of water quality standards at
 the furthest downstream location in the
 tributary, site-speciEc cross-checks are
 conducted at each source location to
 ensure that water quality standards
 (acute and chronic aquatic life, wildlife
 and human health) are attained at the
 edges of applicable mixing zones .or. if
 mixing zones are not allowed under
 state law, throughout the basin. Option
 A does not specify the size of mixing
 zones for this purpose; mixing zone
 requirements (if any) adopted by the
 various states will be used for the cross-
 checks. The cross-checks should apply
 the margin of safety concept to the local
 discharge area. In addition,  they must
 account for background concentrations
 of pollutants in tie immediate vicinity
 of the discharge.
  If a site-specific cross-check indicates
 that standards will not be attained in the
 vicinity of a nonpoint source, the LA
 may be reduced if such a revised LA can
 reasonably be expected to be promptly
 attained by that source in a reasonable
 time period. Otherwise, WLAs for
 upstream point sources must be reduced
 to ensure attainment of standards in the
 vicinity of the nonpoint sources. In
some instances it may be more
 economical for the upstream point
 sources to fund nonpoint source control
 measures to achieve needed load
 reductions than to institute  additional
treatment measures at their  locations. If
such ah agreement is binding on the
 parties and can reasonably be expected
 to promptly provide the needed load
reductions in a reasonable time period,
the TMDL can include a reduced load
 allocation reflecting the agreement.
  vii. Establish Final Allocations. Final
 allocations in TMDLs developed under
 Option A are the more stringent of those
 developed through the basin analysis or
through site-specific cross checks..

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                 Federal Register / Vol.  58,  No. 72  /* Friday rApril ifr. 1993V/Proposed Rules'         26935*
 However, if certain basin allocations are
 reduced as a result of site-specific cross
 checks, other basin allocations could be
 correspondingly increased provided that
 such increased allocations are deemed
 acceptable after conducting site-specific
 cross-checks.
  ; viii. Monitoring Provisions, If there is
 a significant nonpoint source
 contribution of the pollutant addressed
 in the TMDL, the TMDL should
 typically include, a monitoring plan that
 will test the success of the TMDL in
 leading to attainment of water quality
• standards. States may consider
 performing the monitoring themselves,
 or requiring ambient monitoring as a
 condition of NPDES permits issued to
 point source dischargers of the
 pollutant. If the  ambient monitoring
 indicates continued exceedances of
 water quality standards, the TMDL
 should be revised to include more
 stringent allocations. Such phased
 TMDLs are appropriate when nonpoint
 Sources are present because it is
 currently very difficult to accurately
 estimate nonpoint source loadings and
 reductions that can be achieved through
 implementation of nonpoint source
 controls.
   d. Overview of Option B, Option B
 includes detailed procedures to derive
 tributary basin and source specific
 WLAs for point sources where    ;
 background concentrations do not
 exceed water quality standards, but
 where the additional discharge of the
 point source or sources in question has
 a reasonable potential to cause or
 contribute to such an exceedance. ,
   The detailed source specific        .
 procedures could pose an inequitable ,
 burden in some situations on the
 particular point source responsible for
' the marginal loading that could result in
 a water quality standards exceedanee.
 Upstream sources also contributing to
 the water quality impairment would not
 need source-specific TMDLs under this
 approach. Accordingly, Option  B also
 includes an approach for deriving
 tributary basin TMDLs that would
 spread the load reduction burden among
 a number of sources. A tributary basin
 TMDL is also necessary where
 background loadings at point source
 locations exceed applicable water
 quality standards.
  Consistent with the general
conditions set forth in section A.2 of
procedure 3B, the tributary basin TMDL
will include WLAs for point sources
and LAs for nonpoint sources such that
their sum is not greater than the loading
capacity minus the stun of any specified
MOS and reserve capacity for future
growth. Also, each individual WLA
must be no less stringent than the
requirements for source specific TMDLs
as specified in section D.3 of procedure
3B, .     "'   --•'•;'.'    ••'-   •'.-.-  •
  i. Source-specific TMDLs. Option B  ,
includes a formula in section D.S.c.i of
, procedure 3B  for deriving a WLA in
situations where background
concentrations do not exceed water
quality standards. By considering •""   .
background concentrations in the
formula, all upsbeam loadings are
accounted for, and a WLA" is generated
that will ensure attainment of water
quality "standards at the discharge     ;
location. The proposed formula reflects
current EPA guidance for deriving a
WLA using steady state mass-balance
assumptions:   -'.-.-
                    ™  A  ^
                    WLA <:
                             (criterion)[Qad + (1 - f )(efiPuent flow)] - (background)Qad
                                                      -,.,   • .  -
                                                     effluent  flow
. The formula contains five major
 functional components. The first
 component of the formula is the WLA—
 the mass of pollutant that may be
 discharged over a given period of time
 by the point source and still provide for
 attainment of water quality standards.
 The second :major component of the
 formula is:
                                   :  , (criterion)^ + (1 - f )(effluent flowJ]
 .This set of terms calculates the mixing
  zone capacity (expressed as mass of
  pollutants per unit of time) within a   ' .
  specified mixing zone and accoimting-
  for water introduced by the point source
  to the stream. The third major  •
  component of the formula is
  (background)Qad. This component
  calculates the loading (also expressed as
  mass of pollutants per unit of time) ••
  already present in the volume of stream
  flowing to the discharge location  that
  will be used for mixing. -The mixing
  zone capacity minus the background
  loading yields the additional point
  source loading (in mass per unit of time)
  that may be discharged without causing
  an exceedance of water quality,
  standards. When this is divided by the
  effluent flow in units of volume per unit
  time, the fourth major component of the
  formula, it yields a concentration that
  may be discharged (in units of mass per
  volume  of flow). The fifth factor in the
  equation, X, is used to convert-the
  concentration based value to a mass
 based discharge limitation expressec
 over an appropriate time period (such, as
 mass discharge per day). The loading
 capacity and background loading
 components of the formula are
 described in more detail belowi
   ii. Mixing Zone Capacity. The mixing
 zone capacity is the capacity to
 assimilate pollutants and attain criteria
 in the portion of the stream designated
 for mixing, assuming no pollutants
 present,'and is provided by:
                                                    aj.+(1<- f )(effluent flow)]
    The criterion is a chronic Tie): I
  criterion, chronic Tier n value, or oilier
  numeric criterion or numeric
  interpretation of a narrative criterion,
  expressed as a concentration of the
  pollutant. A chronic criterion or value .s

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 20936         Federal Register .  Vol. 58, No.  72 / Friday, April 16, 1993  / Proposed Rules
 designed to protect against effects that
 may arise due to long-term exposure.
 Such criteria are typically more
 stringent than acute criteria, so this
 implementation typically also provides
 protection from acuta or subchronic
 effects, depending upon mixing zone
 considerations.
  Tha Qfd is that portion of the
 receiving water at an appropriate design
 flow that is allowed to oe used to dilute
 the discharge. Section D,3.c.ii of
 procedure 3B specifies that the Q»d is
 calculated by multiplying the stream
 design flow by the dilution fraction. As
 discussed in more detail above, the
 design flow of the stream varies with the
 type of criteria being implemented (e.g.,
 chronic aquatic life or human health),
 and accounts for the fact that there
 typically will be differing amounts of
 dilution water available in a stream
 depending on the season and periods of
 drought or flooding. WLAs for
 continuous discharges must consider
 this variability in receiving water flow.
  The dilution fraction is derived based
 on the relationship of the effluent flow
 of the point source to the flow of the
 receiving water, and an assumption
 regarding how rapidly mixing occurs.
 Stream data showing effluent and
 receiving water flow show that the
 discharge from a point source to a small
 stream will mix relatively rapidly with
 a greater percentage of the water in the
 receiving stream as compared to the
 discharge of a similar point source to a
 large stream. The ratio of the stream
 flow to the effluent flow is used in
 section D.3.c,iii of procedure 3B to
 determine the amount of flow to be
 granted as the default dilution fraction.
 Tha dilution fraction varies from 0.1 to
 0.25, depending on this ratio. Thus, the
 dilution fraction specifies the size of the
 mixing zone in terms of the percentage
 of stream flow (10-25 percent) that is
 available for dilution. The proposed
 Guidance provides for an opportunity to
 demonstrate that a larger mixing zone is
 acceptable within the constraints set
 forth in section E. In no case, however,
 may the dilution fraction exceed 0.75.
  The concept of the fraction of the
 stream design flow is based upon
 recommendations found in the Water
 Quality Criteria—Report of the National
 Technical Advisory Committee to the
 Secretary of the Interior, April, 1968
 (Green Book) and upon guidance from
 EPA's 1983 Water Quality Standards
 Handbook. The Green Book
 recommended that in order to prevent
 the initial mixing of wastewater of point
 sources from erecting a barrier to fish
 and other aquatic organisms, only 25
 percent of the cross-sectional area of the
river should be used for mixing. The
 Handbook suggests that the value of 25
 percent of total river flow is a rational
 estimate of the amount of river flow in
 25 percent of the cross-sectional area.
 The basis  of the use of a fraction of the
 cross-sectional area is then tied to the
 allowance forjmixing zones found in
 each State's water quality standards.
 The use of the 25 percent fraction has
 been incorporated as policy in the water
 quality standards of some States across
 the Nation and included in the Great
 Lakes System for many years in order to
 account for the uncertainties
 surrounding available data, discharge
 fluctuations, impacts on aquatic
 resources, etc. Option B's use of a
 fraction of the cross-sectional area for
.deriving WLAs is consistent with the
 longstanding EPA guidance and State
 policies on mixing.
  The proposed procedure specifically
 sets the default dilution fraction to vary
 inversely with the stream flow to
 effluent flow ratio. A larger portion of
 the stream design flow is allowed for
 those situations where the source flow
 closely approximates the stream design
 flow. This means that when the effluent
 mixes with the stream rapidly, a larger
 portion (25 percent) of the stream is
 justified as a dilution fraction. But when
 the effluent does not mix rapidly with
 the stream, a smaller portion (10
 percent) of the stream flow is justified
 as a dilution fraction. This reduction in
 the dilution fraction effectively reduces
 the volume of water available for
 dilution in larger rivers. This reflects a
 compromise approach when compared
 to some States within the Great Lakes
 System. For example, the State of Ohio
 uses a graduated scale for the fraction
that ranges between 10 percent and 100
 percent of the stream design flow. The
 State of Michigan, on the other hand,
uses a straight 25 percent of the  stream
 design flow for all categories of criteria
 or values, with an opportunity to
 demonstrate for a larger percentage.
  Similar to the approach used by Ohio,
 the dilution fraction is only determined
based upon the ratio of the 7Q10 to the
effluent source flow. Once a dilution ,
 fraction is determined, the same
 dilution fraction would be used when
 assessing the need for all water quality-
based controls for a particular
 discharger. As required by the proposed
Guidance, the dilution fraction would
never be determined using the harmonic
mean 30Q5 flow of a receiving water.
The constant dilution fraction for
varying stream design flows is specified,
in order to ease administrative burden. •
EPA solicits comments on the proposed
method of calculating a default dilution
fraction, and also solicits suggestions
(with supporting rationale) for
alternative methods.
  EPA believes that the dilution fraction
provisions are conservative, and
contribute to a margin of safety for
TMDLs derived using the equations. As
such, EPA believes that in most
situations an additional margin of safety
will not need to be provided when this
equation is used to derive source-
specific TMDLs. This procedure,
however, may not provide an adequate •
MOS where there is more than one
discharger in a relatively short stretch of
river where the design flow (drought,
flow) of the receiving stream does not
substantially increase between the
upstream and downstream  dischargers
or where background levels are high. In
such a situation, the tributary basin
procedure should be used, or some
other method used to provide an
adequate margin of safety.
  The approach is somewhat more
conservative (contributes more to a
MOS) with respect to TMDLs for
wildlife and human health criteria,
since the dilution fraction is always
calculated using the low design flow
(7Q10) used to implement chronic
aquatic life criteria. EPA believes that
use of the formula will promote
consistency in developing TMDLs in the :
Great Lakes System. Comments on the
proposed mixing zone/margin of safety
approach built into the formula are,
specifically invited.
  The component of the formula that is
used to calculate loading capacity also
includes the terms (1-fj(effluent flow).
"f is defined as the fraction of the
effluent flow that is withdrawn from the
receiving water.
  The (1-f) factor is applied to take into
account whether or not the point source
is increasing stream flow (and available
dilution) by adding water to the
receiving stream. In situations when the
receiving water of the discharge is the
same water body as the facility's source
water, the flow from the effluent should
already be accounted for in the stream
flow value and the receiving water is
only receiving additional loading of
pollutants. Where the'facility source
water is from a different water body
than the receiving water, the factor has
the effect of increasing the allowable
dilution flow of the stream to account
for the additional water introduced by
the point source.
  iii. Background Loadings. The
background conditions of the receiving
water are accounted for in the formula  -
in proposed section D.3.c.i of procedure
3B by the term (background) Qad. As
discussed above, Q^ is the portion of
the receiving water that is allowed to
dilute the discharge. When  this flow is  ;

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                 Federal Register  / Vol, Sft, No, 72, / Friday, April 16, 1993  /Proposed;' Rules
                                                                     20937
 multiplied by the background
 concentration of pollutants in the
 receiving water immediately upstream
 :of the point source (calculated in
 accordance with section A.S), the result
 is a background loading of pollutants in
 the portion of the receiving water flow
 .that is available for diluting the
 discharge, in units of mass of pollutants
 per unit of time.    . ., ..            ' •
'  iv. Formula Modification Based an.
 Mixing Zone Studies. Option. B allows
 any interested party to prepare a mixing
 zone; study and allows the TMDL
 authority to modify the dilution fraction
 described, above in accordance 'with
 such studies. The dilution fraction -
 could be either reduced or eliminated,
 or increased to a maximurja. of 75
 percent of the 7Q10 flow. Option B;
 section E describes several required
 elements of a mixing zone study, all
 designed to address the area of mixing
 that can be allowed consistent with
 attainment of water quality standards.
 Mixing zone studies are to assume that
 pollutants do not degrade within mixing
 zones, unless the mixing zone study is
 accompanied by scientifically valid
 field studies or other relevant
 information demonstrating that   ,
 degradation of the pollutant will occur
 in the mixing zone under the full range
 of environmental conditions expected to
 be encountered and such studies or
 other, information also address factors
 other than degradation, that affect the
 level of pollutants in the water column,
 tncludina resuspension of sediments,
 chemical speciation, and .biological arid
 chemical transformation.   .
   v. Limitation on Use of Source-
 specific  TMDL Formula. In situations
 where the term, (background) Qad is
 larger tharLthe term Ccriterion)[Qad +. (1-
. f)(effluent flow}}, the formula will
 generate a negative WLA. .This will
 typically occur where the background
 concentration of pollutants exceeds
'criteria levels, and the point source uses
 the receiving water as its source of
 intake water. Where the formula^.      •
 generates a negative WLA, a discharge ;
 which has the reasonable-.potential to
 cause or contribute to an excursion
 above a criterion or value cannot be
 allowed unless a multiple-source TMDL
 is prepared that will ensure attainment
 of water quality standards,.
   e Pollutant Degradation. Alt&ough
 pollutant degradation may be
 considered for different purposes under
 Options A andB, both.Options allow
 TMDLs to account for degradation of a
 pollutant provided two conditions are
 met. The first condition is that the
 regulatory authority must have
 information regarding, the  rate of
 degradation of the pollutant in the form
 of field studies or other relevant
 information. Field studies, if used, must
 document that degradation, of the
 pollutant will occur under the full range
 of critical conditions exriected to be  ••-'.
 encountered, and should quantify the
 degradation. Critical conditions should
 include the design conditions that are
 established for the implementation of
 criteria in ambient waters as well as
 other conditions such as periods of
 stratification Of the water body and
 variability of the facility effluent flow
 rate. If field study information is not
 available, the regulatory authority can
- use other relevant information such as  .
 literature references from similar sites.
 Regardless of the type of information
 used, all information must be reviewed
 by the regulatory authority and found to
 be scientifically valid, EPA invites
 specific comment on what type of
; information is sufficient to demonstrate
 degradation in ambient waters, and in
 particular, whether literature
 information or field data from similar
 sites can be used, to quantify
 degradation.       ,  .     ...
   The second condition is that.the.
 studies take into account factors other '
 than, pollutant degradation that affect
 the concentration of the pollutant in the
 water column including but not limited
 to resuspension of sediments, speciation
 and transformation.
'  The Steering Committee
 recommended" including a requirement
 that the degradation in the mixing zone
 must be rapid and significant. EPA is
 not proposing these requirements today
 since these  terms are vague and since
 any degradation that does occur in. the
 mixing zone will in practice be rapid
 due to the relatively small size of the
 mixing zones; Further,EPA does not
 believe that the degradation need be
 significant,  but rather that the permittee
 be allowed to receive consideration for
 any degradation that can. be
 demonstrated to occur, in the mixing
 zone.
   The Steering Committee
 recommended,that the Guidance specify
, that losses from the water column due
 to physical  transfer of pollutants to
 other media is not an acceptable
 environmental fate process for
 increasing TMDL allocations. The
 Steeling Committee was concerned .that
 inter-media transfers, including
 volatilization (evaporation from the
 water to the, atmosphere},
 bioaccumulation In the .tissues of
 organisms and sorption to sediment and
 suspended solids in the water body may
 not be permanent losses and that
 pollutants could be reintroducect into
 the water column at some later time
 EFA is not proposing,these
 requirements today, however, because
 EPA believes that the concerns of the
 Steering Committee can be answered
 through other mechanisms.
   Each of the Great Lakes States has"    ".
 already adapted a narrative criterion
 specifying that waters shall be free from
 pollutants that settle to form
 objectionable deposits. EPA's existing
 NPDES requirements (40 CFR 122.44(d))
 require permit effluent limitations to
 meet these narrative criteria. Each
 option also contains identical text in
 general condition 6 requiring that
 TMDLs prevent the accumulation of
 pollutants in sediments to levels'
 injurious to designated or existing uses.
 Inclusion of this provision in the
 proposed Guidance reflects EPA's
 concern about sediment quality in the
 Great Lakes System and a recognition
 that ft may often need to be considered.
  ,EPA is currently developing new
 methods for preventing sediment
 contamination. The first step is to
 develop numeric sediment criteria
 guidance. Upon State adoption of-
 sediment criteria as part of a State WQ.S,
 regulatory authorities will need to factor
 such criteria into the TMDL and NPDES
 permitting-process.
   To the extent that volatilization does
 not represent a permanent loss from the,
 Great Lakes System, it will be accounted
 for in determining background     „
 concentrations. Accordingly, it does not
 seem necessary to prohibit accounting
; for volatilization in establishing TMDLs.
 It would be extremely difficult to
 establish a significant loss of ambient
 pollutaiits as a result of          .
 bioaccumulation. Since most TMDLs
 assume steady state conditions, it
 should also be assumed that the aquatic
 biota is at equilibrium regarding
 pollutant uptake and depuration.
   Likewise, thepotentialloss of   .
 pollutants from the water column by
 bioaccumulation into fish tissue is offset
 by the return of pollutants via
 depuration in more complete models.
 Again, the regulatory authority has
 available a more appropriate mechanism
 for addressing physical transport.
 Finally, EPA believes that pollutant
 volatilization is an irreversible  loss  of ,
 pollutants from water column. EPA
 recognizes that allowing discharge of   •
 volatile pollutants may lead to elevated
 pollutant concentrations in the air,  '    .
 However, EPA believes that these   , .
 potential releases are better controlled
 using other statutory authorities, for
 example, the Clean Air Act. EPA invites
 comment on whether some or all -   *
 physical transport processes should be
 precluded from consideration in. the
 development ofTMDLs and WLAs.   ,

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 20938
Federal Register / Vol. 58, No. 72  / Friday,  April 16, 1993 7 Proposed Rules
 8. Pollution Trading Opportunities
  The TMDL process provides an
 opportunity for pollution trading in the
 water quality program as long as CWA
 goals and requirements are met. Effluent
 limits and nonpoint source controls, for
 example, must be designed, maintained
 and enforced so that water quality
 standards and other program
 requirements are met. For purposes of
 the proposed Guidance, trading refers to
 approaches which introduce market
 incentives into water quality control
 decisions by acknowledging the ability
 of a point source to  achieve water
 quality basod loading reductions
 through creative, enforceable, market
 mechanisms.
  Tho proposed Guidance allows States
 to look for pollution trading
 opportunities as TMDLs are established.
 It should be noted, however, that some
 of the general conditions of applicability
 in both Options may limit trading
 opportunities since  they specify, for
 example, that mixing zones for BCC
 discharges must be eliminated within 10
 years and focus primarily on developing
 TMDLs necessary to derive point source
 permit limits. These types of conditions
 may serve to define  the characteristics
 of trading programs  acceptable within
 any given basin of the Great Lakes
 System.
  While the proposed Guidance focuses
 primarily on providing two options
 designed to provide consistent TMDL
 procedures among the States, each
 option does provide general guidance
 for completing TMDLs on varying
 geographic scales. TMDLs completed for
 larger geographic areas are generally
 moro complex and deal with pollution
 from point and nonpoint sources. As the
 number of sources and pollutants
 included in a TMDL and the geographic
 area grows larger, opportunities for
 trading and the types of trading
 programs appropriate to specific sites
and water quality problems will grow.
 9, State Adoption
  In order to achieve consistent
application of the TMDL procedures,
 the proposed Guidance would require
States to adopt a TMDL procedure
consistent with procedure 3 of the final
Guidance, or an equally stringent
alternative. If a State chooses to adopt
an alternative approach, the selected
approach must result in equal or more
stringent  controls than the final
procedure 3.
10. Summary of Other Options
Considered
  Earlier  drafts of procedure 3 focused
only on tha development of WLAs for
                      point sources using predominantly
                      Option B. One State, New York, uses a
                      different TMDL procedure from the
                      other Great Lakes States. During the
                      Technical Work Group sessions it
                      became evident that these approaches
                      differed in respect to establishing
                      TMDLs for tributaries and in the general
                      level of detail and assumptions used.
                      The Steering Gommittee, believing that
                      both approaches may be consistent with
                      National guidance and the GLWQA,
                      decided to propose both approaches as
                      options and to request comment on
                      them.
                        Additionally, the Steering Committee
                      considered whether, based upon
                      demonstrations that the effluent rapidly
                      mixes with the receiving water, the
                      regulatory authorities should have the
                      flexibility to specify effluent limitations
                      based upon acute aquatic life criteria
                      which are greater than the FAV. These
                      demonstrations would define the'acute
                      mixing zones, which are also known ag
                      zones of initial dilutions (ZIDs) and
                      areas of initial mixing (AIMs). As
                     .explained earlier in the preamble,
                      Option B restricts the WLA for the
                      control of acute toxicity to not greater
                      than the FAV, while Option A provides
                      for case-by-case determinations and
                      applications of State-developed acute
                      mixing zone policies in deriving WLAs
                      necessary to prevent acute toxicity. EPA
                      would like to receive comments on the
                      relative merits of the two approaches.
                       The Technical Work Group had
                      recommended that Option B prohibit
                      mixing zones from extending from a
                      tributary into a lake or connecting
                      channel. The prohibition was intended
                      to ensure that additional mixing based
                      upon the dilution from OWGLs or
                      CCGLs would not be incorporated into
                      the WLA development. EPA was
                      concerned that this prohibition could
                      result in  an inequitable elimination of
                      mixing zones for sources located at the
                     mouths of tributaries. Accordingly, this
                      language was deleted from the proposed
                     Guidance and replaced with a condition
                     in section D.2 of procedure 3B requiring
                     that when information on mixing zones
                     is available for a point source discharge  •
                     that demonstrates that the mixing zone
                     extends into an OWGL or CCGL, the
                     WLA is determined using the more
                     stringent dilution allowance provided in
                     either section C.I or section D.S.c. States
                     will use professional judgement in
                     assessing when a mixing zone extends
                     beyond the boundary of the tributary
                     basin. EPA solicits comments on
                     whether this revision to the
                     recommendation of the Technical Work
                     Group is appropriate and, if not,
                     alternative proposals for dealing with
                     discharges at the mouth of tributaries.
 11. Request for Comments
   Comments are invited on all aspects
 of the two proposals for TMDL
 development and on possible
 alternatives, EPA is interested in
 receiving comments individually on
 both Options A and B. Area's in which
 EPA is particularly interested in
 receiving comments include the overall
 technical and programmatic approach
 set out in each option, the technical
 issues involved in applying each option
 to a varied set of water quality
 problems, consistency with existing
 national policy and program approaches
 and the degree to which each option
 allows for integrated development of
 effective point and nonpoint source
 controls. In addition to comments on
 each option, EPA is also interested in
 receiving comments on the consistency
 between Options A and B. EPA is
 particularly interested in receiving
 comments concerning the overall
 compatibility, technical and
 programmatic strength? and weaknesses
 of each option. EPA is particularly
 interested in the potential impact that
 any differences in these options might
 have on the perceptions and interest of
 the public and regulated community.
   Comments are also invited on how the
 options should be incorporated into the
 final implementation procedures. EPA
 is very interested in receiving comments
 which address the  compatibility of these
 two options. Should, for example, all
 the States in the Great Lakes System be
 required to adopt either Option A or B,
 or a combined approach so that only
 one consistent approach is employed
 throughout the Great Lakes System. Or,
 alternatively, should States be required
 to adopt one or the other of these
 options so that all the States in the Great
 Lakes basin are committed to using
 either Option A or B. Finally, should
 States be permitted to use one or the
 other option according to the situation
 at hand. EPA also solicits comments on
 the option of not providing specific
 TMDL provisions in the final Great
 Lakes Guidance, relying instead on a
 continuation of the existing national
 program in this area.
  •EPA would like to receive comments
 on the elimination of mixing zones for
 BCCs. In addition, EPA welcomes
 comments on whether the lO^year
 implementation period is reasonable
 and if other periods are more
 appropriate.
  EPA would also like comments from
the public on whether acute mixing-
 zones should be allowed and if so,
whether the Guidance should include
any maximum size  for acute mixing
zones, and what that size should be.

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                                                                     20939
 Further, EPA would like comments on
 the need for, and applicability o£. a final
 effluent cap,, such, as the Final Acute
 Value which is proposed in Option B,
   EPA invites comment on the
 procedures to account for the
 environmental fate of pollutants;,  .
 including: the requirement for tiia
 permittee to submit documentation on
 the rate of degradation inside the mixing
 zone; allowing field studies based on a
 similar stream anda similar discharge to
 be considered acceptable and the
 information to be submitted by the   ,
 permittee.        ,
   EPA also invites comments on the
 provisions related to background data
 requirements, specifically on how
 background is defined and on including
 caged fish tissue andloading data as
 acceptable available data. EPA also
 invites comment on the requirement
 that the'background concentrations be
 representative and on providing1 .
 relatively Iittle,detail in the     h
 methodology regarding determination of
 what is representative, or on how to
 adjust data to make it representative.
   The public is also invited to comment
 on setting data points below the
 detection level to one-half of the ,
 reported detection level for the purposes
 of calculating a geometric mean;: setting
 data points between the detection level
 and the quantification level at the mid-
 point between f&& twa reported! levels;
 and setting the background level as zero-
 when all data are below the level of
 detection.                     ;
   It is EPA's intent that the Great Lakes
 States will, at a minimum, use this
 procedure for developing TMDLs for all
 pollutants except those identified in
 Table 5,of the proposed Guidance. The
 results of'dynamic modeling may be
 used only where the results can be
 shown to be more restrictive thaii the
 results due to the steady-state     \ •
 assumptions of both options in.
 proposed procedure 3. EPA would like
 comments on whether the States should
 be allowed to use the results of dynamic
 modeling whether the results are less
 stringent or not when compared with
 the results using the steady-state
 approaches in procedure 3.
   Finally, cominenters may provide
 additional information or alternative
 approaches to TMBL development. In
 particular, EPA welcomes comments on
 means for controlling nonpoint sources,

 D. Additivity                        •
 1. Introduction
*   Traditionally* EPA has developed  ••-
 numerical criteria on a single pollutant
 basis. However, many instances of
 contamination in surface waters involve
 mixtures of two or more pollutants.
 Such mixtures can interact in various
 ways which may affect the magnitude
 and nature of risks or effects on human .
 health, aquatic life and wildlife. With
 respect to impacts on aquatic life, the
 interactive'effects of discharged
 pollutants on organisms is ascertained
 through direct exposure of test ,
 organisms to a point source effluent in
 whole effluent toxicity (WET) tests as
 described in procedure 6 of appendix F
 of the proposed Guidance, The use of
 such tests to determine additive
 pollutant effects on aquatic organisms is
 a well-established .component of
 existing Clean Water Act regulatory
 programs, EPA currently has no
 guidance regarding consideration of
 additive effects of pollutants on
 wildlife.
   EPA has considered-mechanisms for  .
 assessing effects resulting from human
 exposure to pollutant mixtures. On
 September 24,1986, the EPA published
 "Guidelines for the Health Risk
 Assessment of Chemical Mixtures C51
, FR 34O14D," which is available in the
 administrative record feir this
 rulemaking. These guidelines set forth
 principles and procedures for human
 health risk assessment/of chemical .
 mixtures. Although the calculation  ."
 procedures ia these guidelines differ for
 carcinogenic and non-carcinogenic'
 effects, both procedures assume dose
 additfvity in the absence of information
' on specific mixtures. Dose additivity is
 based on the assumption that the      --
 components in a mixture hava the same
 mode of action and elicit titts same types
 of effects. Because information on the
 interaction of pollutants and on the
modes of action, is so sparse, EPAt
 recommends in the 1386 guidelines that
 risk assessments of mixtures be based   :
 on an assumption! of additivity, as long
 as the components elicit similar effects.
 Dose additivity could result im errors in
 risk estimates if synergistic or
 antagonistic interactions occur ft.e»,
 additivity assumptions could result in
 overestimates or underestimates of the
 actual, risks); Thus, the assumption is
 not a "worst-case" assumption, but a
 reasonable assumption within the
 bounds of possibility when specific
 information on pollutant interaction is
 not available.
   In an effort to address the concurrent
 human exposure to combinations1 of
 carcinogens, three Great Lakes States
 (Illinois, Minnesota and Wisconsin}
 assum® ia criteria development that the
 risk of a combination pfcarcinogens in
 a mixture is equal to the sum of risks
 associated with exposure to each
' individual pollutant in the mixture.
 These three States have adopted an.
 acceptable cancer risk level of 10~5 for
 exposures to individual pollutants. In
 Minnesota and Wisconsin, the total
 risks associated with exposure to   ,
 mixtures is aot to- exceed 1&~5 while
 Illinois allows a total cancer risk level
 of 10'""* for exposure to mixtures.   •  •'
"The Great Lakes Water Quality   *  . :
 Agreement addresses this issue in
 Annex 12t which states that "The
 Parties shall establish action levels to
 protect humaa health based on_   v
 multimedia exposure and the interactive
 effect of toxic substances. ** In addition,
 Annex 12 of the Agreement
 recommends that research efforts on the
, interactive effects of residues of toxic
 substances om aquatic life, wildlife, and
 human health be intensified. A
 supplement to Annex 1 of the
 Agreement also provides for the /
 development of specific'objectives
 addressing synergisiic and additive
 effects of pollutants,

 2. Approaches Considered
  The Committees of tfaalaitiative .
 sought to develop a consistent approach
 to additivity within the Great Lakes
 States. Their deliberations resulted in
 proposals for the use of sdditivity for
 the .protection of aquaticHfe, wildlife   =
 and human health. EPA evaluated the-
 Committees' proposals as well as other
 alternatives; both the Committees*
 proposals arid alternatives are discussed
 below.
  EPA's traditional approach is to
 address each pollutant OH an individual
 basis in the derivation of criteria; and
 values. However, EPA has provided   V:
 guidanqs in the past on how to take    —
.additivity into account for the
 protection of aqtiatic life and human
 health. With respect to the proposed
 Great Lakes Water QualityGuidance,
 EPA mvites comment on. the additivity-
 relatedissues discussed below and on
 whether a specific procedure, should be
 either required or set forth as guidance-
 irt the final rule.
  a. Aquatic lAfel As proposed by the
 Committees of the Eiitiative, the
 proposed Guidance accounts for
 additive effects on aquatic life through
 establishment of whole-effluent toxieity
 (\VETJ limitations, WET requirements
 are proposed under procedure ® of
 appendix F of the proposed GuMancev
  • b. Human Health—Carcinogens. For .-
 carcinogenic effects on. humam health,
 the 1986 guidelines for mixture       >
 recommend that in, the absence of
 contrary information: it be assumed that
 the total cancer risk posed by a mixture
 of chemicals is the sum of risks: posed
 by exposures to individual chemicals.
 Since information on the interaction ./f
 pollutants in a mixture is generally

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Federal Register / Vol. 58, No,  72 / Friday, April 16, 1993 / Proposed Rules
 rather limited, the 1986 guidelines
 recommend the use of the additivity
 assumption under most circumstances.
 However, the guidelines indicate a
 preference for relying on actual data on
 the interaction or pollutants in mixtures
 whenever adequate data are available.
 Therefore, EPA recommends that in
 those cases where it can he
 demonstrated that the carcinogenic risks
 of a mixture are not additive, the
 additivity assumption should not be
 used.
  In its December 16,1992, report,
 "Evaluation of the Guidance for the
 Great Lakes Water Quality Initiative,"
 the EPA's Science Advisory Board
 (SAB) stated that additivity should not
 ba used as a default, hut rather multiple
 carcinogens should he considered on a
 casa-by-case basis. This is because
 additivity assumes a common
 mechanism of action and carcinogens
 ore known to act by a. wide variety of
 mechanisms and to target different
 organs. The SAB report goes on to say
 that for compounds that act at the same
 receptor (such as dioxin, fuians and
 PCBs) an assumption of additivity might
 well b« defensible. EPA invites
 comment on whether the assumption of
 additivity for carcinogens should be
 limited to those situations when
 adequate data are available on the
 mechanisms of action,
  EPA invites comment on whether the
 narrative criteria of the States and
Tribes providing that waters be free
 from substances that injure or are toxic
 to humans, animals or plants should be
 Interpreted to account for the additive
 offsets of chemicals. The purpose of this
approach would be to prevent the total
risk associated with carcinogens in
ambient waters from exceeding a non-
appreciable level. As discussed
elsewhere in the proposed Guidance,
EPA is proposing criteria/values for
single pollutants based on a 10~5 cancer
risk lovel, EPA believes that the use of
a risk level on total risk associated with
chemical mixtures would enhance
protection of human health, and
consistency in addressing additive
impacts throughout the Great Lakes
System. It would also be consistent with
tb.8 provisions of the Great Lakes Water
Quality Agreement calling for
consideration of the interactive effects
of toxic substances. Insofar as it may
require greater reductions of pollutant
discharges than would be required
through implementation of individual
chemical criteria alone, it would also
further the "virtual elimination" goal of
the Agreement. EPA requests comments
on the possible use of 10~s as a cap on
tho cancer risk associated with mixtures
and on alternative risk levels (e.g., 10-*}
                      that may be considered. A specific •
                      option that would require interpretation
                      of narrative criteria to establish a 10~5
                      cap on cancer risk associated with
                      chemical mixtures is set forth in section
                      3 of this preamble discussion.
                        EPA also requests comments on
                      whether -the additivity concept should
                      be applied only to a limited (i.e., finite)
                      number of the carcinogens in ambient
                      waters that individually pose the
                      greatest cancer risk to exposed
                      populations rather than to all detected
                      carcinogens. For example, the narrative
                      criteria could be interpreted such that •
                      the cumulative cancer risk posed by the
                      presence of five (or some other number
                      of) carcinogens in any given waterbody
                      or segment would not exceed 10~s.
                      Such a modification would reflect the
                      fact, recognized in EPA's 1986
                      Guidelines for the Health Risk
                      Assessment of Chemical Mixtures, that
                      as the number of pollutants covered by
                      the additivity assumption increases, the
                      uncertainty associated with the
                      resulting risk assessment is also likely to
                      increase. This approach could also
                      greatly ease the administrative burden
                      of preparing total maximum daily loads
                      (TMDLs) and water quality-based
                      effluent limits (WQBELs) based on the
                      additivity assumption, since it would
                      provide a cut-off to what otherwise
                      might be an extended inquiry and
                      would relieve regulatory authorities of
                      the burden  of identifying risks and
                      sources associated .with carcinogens that
                      pose a relatively insignificant risk to
                      human health. Finally, EPA requests
                      comments on whether a separate water
                      quality criterion (WQC) should be
                      established for carcinogenicity (e.g.,
                      total cancer risk for ambient waters not
                      to exceed 10 ~4,10 ~5, or some other
                      cancer risk level) rather than the
                      approach discussed above for
                      implementing narrative criteria.
                        These alternatives differ considerably
                      from the proposal of the Committees of
                      the Initiative with respect to considering
                      additivity for carcinogens. The
                      Committees proposed that the additivity
                      assumption be applied only with
                      respect to facilities otherwise requiring
                      WQBELs for individual carcinogens,
                      and only as to those carcinogens
                      requiring WQBELs. Thus, the
                      Committees did not propose application
                      of the additivity assumption in setting
                      or interpreting ambient water quality
                      criteria. Rather, their proposed approach
                      would have resulted in further
                      limitations beyond WQBEL levels so
                      that the carcinogens covered by
                      WQBELs from a given facility would
                      not, after mixing with receiving waters,
                      represent a total cancer risk greater than
                      10 ~s. Thus, the Committees' approach
did not address Carcinogens for which
WQBELs were not needed. In addition,
because not all sources discharging a
pollutant for which WQBELs are needed
necessarily need WQBELs in order to
provide for attainment of water quality
standards, not all sources discharging a
given carcinogen would have the
additivity assumption applied to their
discharges.
  Although EPA agrees that the '
approach proposed by the Committees
of the Initiative offers certain
administrative advantages as compared
with other alternatives, EPA is
concerned that the Committees'
approach could be inequitable in its
application. The full text of the proposal
of the Committees is reproduced below
under section 4 of this preamble. EPA
invites comment on the possible use of
that approach in the final rule to .
account for the additive effects of
carcinogens in the Great Lakes.
  c. Human Health—Non-carcinogens.
The 1986 EPA guidelines on chemical
mixtures acknowledge that additivity of
effects for non-carcinogens is most
appropriate when pollutants in a
mixture elicit the same type of effect by
the same mechanism of action.   •
However, because information, on the
mechanism of action is rather limited
for many pollutants, the 1986 EPA
guidelines on chemical mixtures
recommend that when two or more
compounds produce adverse effects on
the same organ system (i.e., target organ)
the effects should be considered
additive. The 1986 guidelines
additionally state that additivity for
dissimilar effects does not have strong
scientific support. Thus, the underlying
assumption in the 1986 guidelines is
that the components of a mixture whick
produces adverse effects on the same
target organ are additive. This approach
could overestimate or underestimate the
actual risks due to possible antagonistic
or synergistic'interactions among
components in a mixture.
  The 1986 guidelines recommend the  ,
use of a hazard index (HI) approach for
non-carcinogenic toxic agents. The
hazard index indicates if there is a
concern with a mixture by providing a
rough measure of likely toxicity.
However, it does not define dose-
response relationships (i.e., its
numerical value is not a direct estimate
of risk).
  EPA solicits comment on the HI
approach for applying additivity to non-
carcinogenic effects, as described in the
1986 guidelines. This approach assumes
that multiple, simultaneous exposures
to a chemical could result in an adverse
health effect and that the magnitude of
the effect is proportional to the  sum of -

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                 Federal Register /Vol. 58, No. 72 I Friday, April  16, 1993 / Proposed Rules
                                                                                                    20941
 the ratios of the* actual exposures to
 "acceptable" exposures. When the HI
 exceeds unity (i.e., 1) a potential, for
 adverse health effects exists. While any
 single chemical with an exposure- level
 greater than the toxicity value (i.e.,  .
 threshold or Reference dose (RfD)) will
 cause the HI to exceed unity, for
 mixtures, the HI can also exceed unity
 even' if no single chemical exceeds its
 RfD.       ,                •'"-'.;•'
   The hazard index approach assumes
 dose addition for those compounds that
 induce the same target organ response -
 and, therefore, a separate hazard index
 should he developed for each end point.
 Dose addition (additivity) for dissimilar
 effects does not have strong scientific
 support. For estimating the "HI" of a
 mixture of non-carcinogens based on
 additivity, the following equation may
 be applied:
HI
-   EI   i
                  E
                RfD
                       1     t
 Where, for i = 1 through n:
 EI = exposure level of the chemical in
     the mixture.
 RfDi = The Reference dose for that
     chemical.
   : Since publication of the 1986
 guidelines, EPA has published a
 "Technical Support Document on Risk
 Assessment of Qiemical Mixtures
 (November 1988)", which discusses the .
 hazard index approach as well as an
 alternative "toxicity equivalency factor"
' (TEF) approach. This document is
 available in the administrative record
 for this rulemaking. The "toxicity'
 equivalency factor" approach was not
 discussed in the 1986 guidelines but has
 since been recommended by EPA for
 risk assessment of certain chemical
 classes.: One advantage of the TEF
 approach is that it allows the use of data -
 to assess  and quantify the toxicity of
 mixtures that are not used to quantify
 the risk from exposure to single ; ,
 chemicals (lie.,- acute data, data from
 atypical routes of environmental
 exposure and in vitro data). The 1988
 Technical Support Document states that
 the TEF approach should be applied;
 only to compounds that have the same
 mode of action or act independently.  ;.
 The approach described in the 1988
, Technical Support Document is more,
 restrictive than the 1986 guidelines in
 the use pf the additivity assumption for
 non-carcinogens but it is consistent with-
 the proposal for the use of TEFs made
 by the Committees of the' Initiative. EPA
 also believes that the approach in the
 1988 Technical Support Document is
 not inconsistent with the original 1986
 guidelines which state: "No single '
 approach can be recommended to risk
 assessments for multiple chemical
 exposures."
   The preferred approach presented in
 the 1986 guidelines for conducting risk
 assessment of mixtures is to use in vivo
 toxicity data on the mixture itself based
 on the route of exposure and duration
 period of concern. However, this
 approach is not practical in most cases .-.
 because adequate toxicity data are
 available on very few complex mixtures.
 The "toxicity equivalency factor"
 approach involves estimating the
 potency of less well-studied
 components in a mixture relative to the
 potency of better studied components,.
 using data from comparable types of in
 vitro and short-term in vivo assays. So
 far, this approach has been used only to
 estimate the toxicity of mixtures of
 chlorinated dioxins and dibenzofurans
 by using extensive data on the in vitro
 activity of these compounds. Today's
 proposal requests .comments on whether
 EPA should consider the "toxicity
 equivalency factor" approach for these
 chemical classes and for any other  ,    .
 mixtures for which TEFs may
 reasonably be calculated in the future as
 this area of research progresses and EPA
 is able to develop additional TEFs.
   EPA specifically solicits comment on
 two possible approaches to addressing
 additivity for non-carcinogens, set forth
. in sections 3'and 4 of this preamble.
 Both would require that mixture of
 CDDs and GDFs be considered additive,
 in accordance with specific TEFs
 described in more detail in section 2.d.
 of the preamble. In addition, the option
 described in section 3 would require use
 of bioaccumulation equivalency factors
 (BEFs) (discussed in detail below) to
 account for differences in
 bioaccumulation potential of different
 CDDs and CDFs. The alternative set
 forth in section 3 would require
 generally that noncancereffects.be
 considered additive for those pollutants
 for which available scientific     •'  •
 information supports a reasonable
 assumption that the pollutants produce
 the same adverse effects through the
 same mode of action, and for which
 TEFs and BEFs may reasonably, be
 calculated. Thus, this option would
 establish a general requirement for
 States and Tribes to develop specific
 additivity protocols for classes of
 pollutants when sufficiently supported
 by scientific information.
   The second option which EPA
 specifically solicits comment on is set  ,
 forth in section 4. It would require
 application of additivity assumptions  ,
 only -for those pollutants for which TEFs
 are set forth as part of the Great Lakes
 Guidance. Pollutants covered initially
would include CDDs and CDFs, but
more pollutants could be addressed
through future revisions to die rule.'
This option would best promote    •
consistency among the Great Lakes
States and Tribes, but may involve more
lag time between availability of
scientific, support for application of  •
additivity-and use in water quality
management than would ike option set
forth in section 3. •        •
  d.  TEFs and BEFs for Chlorinated
Dibenzo-p-dioxins (CDDs) and
Chlorinated Dibenzofurans (CDFs).
Chlorinated dibenzo-p-dioxiris and
dib~ehzofurans (CDDs/CDFs) constitute a:
family of 210 structurally related
chemical compounds. During the late
1970s and early 1980s, EPA
encountered a number of incidents of  ',
environmental pollution in which the
toxic potential of CDDs and CDFs
figured prominently. Initially, concern
was focused solely on 2,3,7,8-TCDD,
which was produced as a low level by-
product during the manufacture of
certain herbicides.
  During the past 20 years, many
studies have been conducted to    '
elucidate the toxic effects of 2,3,7,8--
TCDD. The data obtained from these
studies are summarized in a number of
reviews (U.S. EPA, 1984; U.S. EPA,
1985; U.S. EPA, 1988; WHO, 1977;
NRCC, 1981), which are available in the
administrative record for this"
rulemaking. EPA is currently engaged in
a major effort to generate more data on
dioxih toxicity, and to update its      :
analysis of existing data. While research
efforts to date have not answered all of,
the questions, the data do show that
2,3,7,8-TCDD can prbduce a variety of
toxic effects, including cancer and
reproductive effects in .laboratory
animals at very low doses. : . •
  Data on the toxicity of other CDDs and
for CDFs is considerably more limited.
These data are summarized in two EPA
documents entitled "Interim Procedures
for Estimating Risks Associated with .
Exposures to Mixtures of Chlorinated
Dibenzo-p-Dioxins and -Dibenzofurans
(CDDs and CDFs)", (October 1986), and
"1989 Update to'the Interim Procedures
for Estimating Risks Associated with
Exposures to Mixtures of Chlorinated
Dibenzo-p-Dioxins and -Dibenzofurans.
(CDDs and CDFs)", (March 1989) {the
"1989 TEF Update"), which are
available in, the, administrative record   •
for this rulemaking. While data
available from long-term in vivo studies
are limited for the majority of CDDs and
CDFs, a much larger body of data is     '.'.,
available on short-term in vivo studies
and a variety of in vitro studies. These
experiments cover a wide variety of end
points; e.g.,. developmental toxicity, cell

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 transformation, and enzyme induction
 (aryl hydrocarbon hydroxylase [AHH]).
 While the doses necessaiy to'elicit the
 toxic response differ in each case, the
 relative potency of the different
 compounds compared to 2,3,7,8-TCDD
 Is generally consistent from one end
 point to another.
   This information, developed by
 researchers in several laboratories
 around the world, reveals a strong
 structure-activity relationship between
 tho chemical structure of a particular
 ODD or CDF congener and its ability to
 elicit a biological or toxic response in
 various in vivo and in vitro test systems,
 (Bandiera et al., 1984; Olson et at, 1989;
 U.S. EPA 1989; NATO/CCMS 1988a,b).
 Research has also revealed a
 mechanistic basis for these observations.
 That is, a necessary (but not sufficient)
 condition for expression of much of the
 toxiciU' of a given CDD or CDF congener
 Is its ability to bind with a particular
 protein receptor located hi the
 cytoplasm of the cell. This congener
 receptor complex then migrates to the
 nucleus of the cell, where it initiates
 reaction loading to expression of
 toxidty (Poland and Knutson, 1982).
  Based on this type of Information,
 scientists suggested the development of
 numerical factors  ("toxic equivalency
 factors" or "TEFs") that could be used
 to equate the toxicity posed by various
 CDDs and CDFs to 2,3,7,8-TCDD for
 purposes of conducting risk assessments
 including mixtures of the chemicals.
 EPA developed an Interim procedure
 that was reviewed and approved by
 EPA's Science Advisory Board, and
 published as a monograph of EPA's Risk
 Assessment Forum in 1987. The
 procedure was modified in certain
 respects in the 1989 TEF Update, and
 has been adopted for international use
by the North Atlantic Treaty
 Organization.
  EPA solicits comment on whether
EPA should require use of the specified
TEF-based approach to equate mixtures
 of CDDs and CDFs to a concentration of
 2,3,7,8-TCDD for purposes of
implementing the human health and
wildlife criteria for 2,3,7,8-TCDD.
Specific options are set forth in sections
3 and 4 of this preamble. The TEFs are
tho samoas those set forth in EPA's
 1989 TEF Update, and that Update
provides the technical basis for the
proposal. EPA also invites comment on
whether other TEFs should be used
rather than those listed in the 1989 TEF
Update.
  The CDD/CDF TEFs address the
toxicity of various chemicals as
compared to 2,3,7,8-TCDD, but do not
address differences in bioaccumulation
potential between  the chemicals.
                      Because the criteria for 2,3,7,8-TCDD are
                      largely driven by the relatively large
                      bioaccumulation factor for the chemical,
                      and because available information
                      suggests that other CDDs and CDFs have
                      different bioaccumulation factors, EPA
                      believes that it may be appropriate to
                      use factors accounting for the different
                      BAFs in converting concentrations of
                      CDDs and CDFs to equivalent
                      concentrations of 2,3,7,8-TCDD. The
                      option set forth in section 3 incorporates
                      this approach. The technical rationale
                      for the particular "bioaccumulation
                      equivalency factors" (BEFs) selected is
                      provided in a "Draft Technical Support
                      Document for Bioaccumulation
                      Equivalency Factors," which is
                      available in the administrative record  :
                      for this rulemaking.
                       The Committees of the Initiative did  .
                      not propose use of bioaccumulation
                      equivalency factors; their proposal
                      would have assumed that BAFs for all
                      CDDs and CDFs are identical to that
                      calculated for 2,3,7,8-TCDD. Because
                      available information on BAFs for other
                      CDDs and CDFs suggests that BAFs for
                      those chemicals are generally smaller
                      than for 2,3,7,8-TCDD, the Committee's
                      proposal would be a conservative, as
                      well as a simplifying, approach. EPA
                      solicits comment on this option, set
                      forth in section 4 of this preamble.
                       e. Wildlife. As stated earlier, EPA has
                      no present policy on the use of
                      additivity for wildlife effects. EPA
                      solicits comment, however, on whether
                      additivity with respect to wildlife
                      effects should be treated in a manner
                      consistent with the options described  '
                      above for noncancer human health
                      effects and for mixtures of CDDs and
                      CDFs. EPA believes that an argument
                      can be made that the TEFs for CDDs  and
                      CDFs developed for use in human
                      health risk assessments should generally
                      be applicable to wildlife, since the TEFs
                      are based largely on animal studies.
                      Using the TEF approach, the total
                      allowed exposure level for mixtures  of
                      these congeners would not exceed the
                      level established by the wildlife criteria
                      for 2,3,7,8-TCDD, based on 2,3,7,8-
                     TCDD equivalents. Two specific
                      alternatives regarding application of
                      additivity principles to wildlife effects
                      are  set forth in sections 3 and 4 of this
                      preamble. EPA requests comment on
                     these options, and on possible
                      alternatives to them.
                       In developing this proposed
                      Guidance, the use of TEFs for
                     polychlorinated biphenyls (PCS)
                      congeners for wildlife was considered.
                     In December 1990, EPA's Risk
                     Assessment Forum held a workshop  to
                     specifically address the use of TEFs for
                     PCBs (Risk Assessment Forum,
 Workshop Report on Toxicity
 Equivalency Factors for Polychlorinated
 Biphenyl Congeners, June 1991, EPA/
 625/3-91-020). This workshop
 concluded that the application of TEFs
 to PCBs is not as straightforward as it is
 in the case of GDDs and CDFs, but that
 TEFs for dioxin-like PCB congeners are
 feasible and may be considered additive
 with those for CDDs and CDFs. Further,
 the workshop  concluded that current
 dioxin-like TEFs appear to be useful in
 assessing traditional measures of
 wildlife toxicity. The workshop, •
 however, recommended that a TEF
 scheme for PCBs should be seen as an '
 interim procedure and promising
 bioassay approaches should also be
 vigorously pursued.
   On March 19-20,1992, a Dioxin
 Ecotpx Subcommittee of the Ecological
 Processes and  Effects Committee of the
 Science Advisory Board met to review
 EPA's research proposals to  support the
 development of an ambient aquatic liie
 water quality criterion for 2,3,7,8-
 TCDD. At that meeting, the
 Subcommittee addressed the general
 issue of research needed to support the
 use of TEFs for aquatic life and wildlife.
 In their final report dated August 1992,
 the Committee stated that the TEF
 approach appears promising for aquatic
 life and wildlife but more studies are
 needed to show phylogenetic
 variability. The Committee concluded
 that at the present time there are
 insufficient data available to judge the
 reliability and  the accuracy of the TEF
 approach.                     .
  A recent study of the potencies of
 CDDs, CDFs and PCBs relative to
 2,3,7,8-TCDD for producing early life
 stage mortality in rainbow trout
 calculated TEFs for each of these classes
 of chemicals (Walker and Peterson,
 1991). The TEFs calculated in this study
 for CDDs and CDFs were similar to
 those proposed by Safe (1990),
 However, the TEFs for the PCB
 congeners were 14 to 80 times less than
 those proposed in Safe (1990), The
 results of the Walker and Peterson study
 illustrate the significant uncertainties in
 applying TEFs  across species and
 endpoints for PCB congeners. Further,
 another recent  study concluded that the
TEFs proposed in Safe (1990) for the
 "dioxin-like" PCBs overestimate the    '.
potency of these compounds by a factor
 of 10-1,000 (DeVito et al., 1992).
  EPA solicits  comments on whether
TEFs for PCBs  should be included
together with those for CDDs and CDFs
in the use of the additivity concept for .
wildlife effects. Table VDI.D-1 presents
TEFs for PCB congeners from Safe.
1990. EPA specifically requests

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Federal Register  /-Vol. 58>
                                                                            1G, 1993 '/ Imposed faiJes           20943
comment on the inclusion of these TEFs
for wildlife in the Great Lakes Guidance..

  TABLE VIII.D-1.—Toxic EQUIVALENCY
       FACTOR VALUES FOR PCBs

(a) Coplanar PCBs:
-3,3',4,4',5-PeCB 	 .....
3,3',4,4',5,5'-HxCB .......
3 3',4,4'-TCB 	 	 	
(b) Monoortho Coplanar
PCBs:
• 233'44'-PeCB 	 	 	
234 4'-PeCB 	 	
2' 3 4 4' 5-PeCB 	 	
,2,3',4,4',5-PeCB 	
2,3,3',4,4',5-HxCB 	
2,3,3',4,4',5-HxCB ........
2,3',4,4',5,5'-HxCB .......
2,3,3',4,4',5,5'-HpCB ....
'IUPAC
•..#'
126
169
. 77
105
114
< 123
118
156
157
167
189
TEF
Value
0.1
.05
.01
.001
.001
.001
.001
.001
.001
.001
.001
3. Request for Comment on Approach
Considered for Implementing the States'
Narrative Criteria

   The text presented below represents
one approach that would specify that '
the narrative criteria be interpreted to
account for the additive effects of     '
chemicals. EPA requests comments on
whether the language below should be
added to the Implementation
Procedures of the final Guidance,
 - The following procedures establish the
manner in which the additive effects of
chemical mixtures shall be treated when
interpreting the narrative criteria of the States
and Tribes requiring that all waters be. free
from substances that injure or are toxic or ,
produce adverse physiological responses in  •
humans, animals or plants.              ,
   A. Aquatic Life Effects. Whole-effluent
toxicity requirements established under
procedure'6-of appendix F of part 132 shall
be used to account for additive effects to
aquatic organisms.
   B. Wildlife Effects. The effects of
individual pollutants shall be considered ;
additive for chlorinated dibenzo-p-dioxins
and chlorinated dibenzofurans, and for other
pollutants for which available scientific
information Supports a reasonable
assumption that the pollutants produce the
same adverse effects through the same
mechanism of action, and for which toxic
equivalency factors and bioaccumulation
equivalency factors may reasonably be
calculated. For chlorinated dibenzo-p-
dioxins and chlorinated  dibenzofurans,
additivity shall be accounted for hi
accordance with section E. For other
pollutants, toxic equivalency factors and
bioaccumulation equivalency factors shall he
 developed and thereafter applied in a manner
. similar to that described in section E based
 either on a relationship to 2,3,7,8-TCDD or to
 some other chemical, as  appropriate.
   C. Human Health—Non-cancer Effects.
 The effects of individual pollutants shall be
 considered additive for chlorinated dibenzo-
 p-dioxins and chlorinated dibenzofurans,
                        and for other pollutants for which available
                        scientific information supports a reasonable
                        assumption that the pollutants produce the
                        same adverse effects through the same
                        mechanisnl of action, and for which toxic
                        equivalency factors and bioaccumulation
                        equivalency factors may reasonably be
                        calculated. For chlorinated diberizo-p-
                        dioxins and chlorinated dibenzofurans,
                        additivity shall be accounted for in  ,
                        accordance with section E. For other
                        pollutants, toxic equivalency factors and
                        bioaccumulation equivalency factors shall be
                        developed and thereafter applied hi a manner
                        similar to that described hi section E based
                        either on a relationship to 2,3,7,8-TCDD or to
                        some other chemical, as appropriate.
                          D. Human Health—Cancer Effects. The
                        incremental cancer risk of each carcinogen
                        shall be considered to be additive and the,
                        total cancer risk shall not exceed 10~5,
                        However, the State or Tribe may determine,
                        based on information submitted by a
                        permittee or otherwise available to the State
                        Or Tribe, that the carcinogenic risk for a given
                        mixture is not additive.
                          E. Toxicity Equivalency Factors. The
                        following TEFs shall be used when
                        implementing human health or wildlife
                        criteria for 2,3,7,8-TGDD. The concentration
                        of each CDD and CDF in an effluent shall be
                        converted to a 2,3,7,8-TCDD equivalent
                        concentration by multiplying me   ,
                        concentration of the CDD or CDF by the TEF
                        shown in Table VIIID.2 below, and
                        multiplying that product by the
                        bioaccumulation equivalency factor in Table
                        VHI.D.3 below. All resultant concentrations
                        shall be added to produce an equivalent
                        2,3,7,8-TCDD concentration. The equivalent
                        2,3,7,8-TCDD concentration shall be used to
                        establish TMDLs (including wastelqad and
                        load allocations) pursuant to procedure 3.
                        This equivalent 2,3,7,8-TCDD concentration
                        , shall also be used as the .concentration of "
                        2,3,7,8-TCDD for purposes of assessing the
                        total cancer risk of carcinogens pursuant to
                        section 4.D.

                           TABLE VIII.D-2.--TOXIC EQUIVALENCY
                           FACTOR VALUES FOR CDDs AND CDFs
    TABLE Vlll.D-3.—BJOACCUMULATION
      EQUIVALENCY FACTORS (BEFs)
" v Congener
2,3,7,8-TCDD 	 	 :................
1 ,2,3,7,8-PeCDD ......:,..... 	 ...
1 ,2,3,4,7,8-HxCDD 	
1 2,3,6,7,8-HxCDD 	 	 .............;...
1 ,2,3,7,8,9-HxCDD 	 	 :............
1 ,2,3,4,6,7,8-HpCDD 	 	 	 	
OCDD „ 	 	 	 	 	 	
2,3,7,8-TCDF ........ 	 	 	
1 ,2,3,7,8-PeCDF 	 	
2,3,4,7,8-PeCDF 	 	 ...................
1 ,2,3,4,7,8-HxCDF 	 	 „.. 	 ....
1 ,2,3,6,7,8-HxCDF 	 .....;...........
2,3,4,6,7,8-HxCDF 	
1 ,2,3,7,8,9-HxCDF 	 	 	 ; 	
1 ,2,3,4,6,7,8-HpCDF 	 	 	 	
1 ,2,3,4,7,8,9-HpCDF 	 	
OCDF 	 	 	 	 	 	
TEF
1.0
.5 -
.1
.1
.1
.01
.001
.1
.05
.5
.1
.1
.1
.1
. .01
. .01
.001
Congener
2,3,7,8-TCDD 	 	 .......„;
1,2,3,7,8-PeCDD 	 .-. 	 	
1,2,3,4,7,8-rHxCDD 	 	 	
1,2,3,6,7,8-HxCDD 	 	 	 	
1 ,2,3,7,8,9-HxCDD 	 	 	 	
1 ,2,3,4,6,7,8-HpCDD ..*. 	 	
OCDD 	 : 	 	 	 	 	
2,3,7,8-TCDF 	 	
1 ,2,3,7,8-PeCDF 	 	 	 	 	
2,3,4,7,8-PeCDF 	 	 	 	 ...
1 ,2,3,4,7,8-HxCDF 	 	 	 	 	 	
1 ,2,3,6,7,8-HxCDF 	 .....;'.......
2,3,4,6,7,8-HxCDF 	 	 	
1 ,2,3,7,8,9-HxCDF 	 	 .....:...
1,2,3,4,6,7,8-HpCDF ............... 	
1 ,2,3,4,7,8,9-HpCDF 	 	 	 	
OCDF 	 	 	 	 	
TCDD
BEF
10
£0.8
£0.3
£0.2
£0.2
<0.03
£0.02
1.2
0.3
1.8
£03
£0.3
£0.5
£0.5
£0.003
£0.1
£0.005
   Notes:
   1..xBEFxTcPDBAF =
   2. xBAF=lipid-based bioaccumulation factor
 for total congener concentration in water.

   The TEFs provided in Table Vm.D-2
 are the same as those set forth in EPA's
 1989 TEF Update. However, this Table
 has been reorganized to make it
 consistent With Table Vm.D-3 above
 (which lists the BEFs for specific
 congeners and does not include CDDs
 and CDFs with TEF values of zero),

 4, Request for Comment on Alternative
 Approach

   The text presented below represents
 the proposal for additivity of the
 Committees of .the Initiative, modified
 by EPA to delete the application of TEFs
 for PCBs to wildlife. EPA requests
 comments on whether the language
 below should be added to the
 implementation procedures of the final
 Guidance.            ,             •
   The toxic action of some pollutants in
mixtures is additive in their effects on
 organisms. The following procedure
, establishes the manner hi which the additive
 effects of chemical mixtures shall he treated. •
 This provision shall be applied to point
 source discharges.
   A. Aquatic Life Effects. Whole-effluent
 toxicity requirements established under
 procedure 6 of appendix F of part 132 shall
 be used to account for additive effects to
 aquatic organisms.          •        ,
   B. Wildlife Effects. When establishing
 wasteload allocations (WLAs) for the
 protection of wildlife, the effects of
 individual pollutants shall he considered
 additive for the pollutants for which toxicity
 equivalency factors (TEFs), as provided in
 section E of this procedure, are available. •
 .  C. Human Health—-Non-cancer Effects.
 When establishing wasteload allocations
 (WLAs) for the protection of human health
 for non-carcinogens, the effects of individual
 pollutants shall be considered additive for
 the pollutants for which toxicity equivalency

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20944         Federal Re^ster  1 Vol. 58, No. 72 ? Friday, April 16, 1993  /  Proposed Rules
 factors, as provided hi part F of this
 procedure, are available.
   D. Human Health—Cancer Effects. When
 establishing wasteload allocations (WLAs) for
 tho protection of human health for
 carcinogens, the following shall apply:
   (1) Except as noted hi (2) below, in cases
 where an effluent contains detected levels of
 moro than one pollutant for which a Tier I
 criterion or Tier n value exists and for which
 a water quality-based limitation is required
 under Procedure 5, the incremental risk of
 •ach cardnogan shall be considered to be.
 additive and the total cancer risk shall not
 exceed 10~5. The wasteload allocation
 (WLAJ for each carcinogen shall be
 established in a permit to protect against
 potential additive effects associated with
 simultaneous, multiple-chemical human
 exposure such that the following condition is
 met:

             rj              C
        .4.	2_+...+_±a—^1
           WLA2         WLAn
 Where:
 Ci.  . .n = tho monthly average effluent
     limitation expressed as
     concentration of each separate
     carcinogen in the effluent.
 WLAi. .  ,n = the wasteload allocation
     concentration calculated for each
     substance at each permitted facility
     independent of other carcinogens
     that may be present in the receiving
     waters based oa the human cancer
     criterion for each respective
     carcinogen.
  (2) If tha permitting authority determines,
 based on information submitted by the
 p&rmiUea, that the carcinogenic risk for a
 mixture is not additive, the permitting
 authority may establish wasteload based on
 that Information.
  B. TEFs applied to Wildlife Effects. Tha
 permitting authority shall usa toxlcity
 equivalency factors when establishing
 wasteload allocations for the protection of
 wildlife for chlorinated dibonzodioxins
 (CDDt) and chlorinated dibenzofurans
 (CDFs). Tb* concentration of each CDD and
 CDF in an effluent shall be converted to a
 2,3,7,8-TCDD equivalent concentration by
 multiplying the concentration of the CDD or
 CDF by tha TEF shown In Table VHLD.4. All
 resultant concentrations shall be added to
 pro-due* an equivalent 2,3,7,8-TCDD
 concentration. The equivalent 2,3,7,8-TCDD
 concentration shall bo usod to establish a
 wasteload allocation consistent with
 procedure 3. Whenever one or more CDDs
 and/or CDFs aro present in an effluent, the
 permitting authority shall establish a
 wasteload allocation for 2,3,7,8-TCDD. The
 permittee shall be considered in compliance
 only if thasum of the effluent concentration
 times the TEF for all the CDDs and CDFs are
 less or equal to the wasteload allocation for
 2,3,7,8-TCDD. If there are carcinogens other
 than CDDs and CDFs hi the effluent, the sum
 calculated for tho equivalent 2,3,7,8-TCDD
concentration must bo used in the formula hi
D(l) abova  foe Cj» where k represents 2,3,7,8-
TCDD.
                                          F. TEFs applied to Human Health—Cancer
                                        Effects. The permitting authority shall use
                                        toxicity equivalency factors when
                                        establishing wasteload allocations for human
                                        health-based criteria for CDDs and CDFs. The
                                        concentration of each CDD and CDF hi an
                                        effluent shall be converted to a 2,3,7,8-TCDD
                                        equivalent concentration by multiplying the
                                        concentration of the CDD or CDF by the TEF
                                        shown in Table VTH.D.4. All resultant
                                        concentrations shall be added to produce an
                                        equivalent 2,3,7,8-TCDD concentration. The
                                        equivalent 2,3,7,8-TCDD concentration shall
                                        be used to establish a wasteload allocation
                                        consistent with procedure 3. Whenever one
                                        or more CDDs and/or CDFs are present in an
                                        effluent, the permitting authority shall
                                        establish a wasteload allocation for 2,3,7,8-
                                        TCDD. The permittee shall be considered in
                                        compliance only if the sum of the effluent
                                        concentration times the TEF fpr all the CDDs,
                                        and CDFs are less or equal to the wasteload
                                        allocation for 2,3,7,8-TCDD. If there are
                                        carcinogens other than CDDs and CDFs in the
                                        effluent, the sum calculated for the
                                        equivalent 2,3,7,8-TCDD concentration must
                                        be used hi the formula in D(l) above for Ck,  •
                                        where k represents 2,3,7,8-TCDD.

                                          TABLE VlH-D-4.—Toxic EQUIVALENCY
                                          FACTOR VALUES FOR CDDs  AND CDFs
                                                 Compound
                                        1. Dioxlns:
                                         Mono-, Di-, and TriCODs ..
                                         2,3,7,8-TCDD 	
                                           Other TCODs	
                                         2,3,7,6,-PeCDO	
                                           Other PeCDDs	
                                         2,3,7.8-HxCDDs	
                                           Other HxCDDs	
                                        2,3,7,8-HpCDD 	
                                           Other HpCDDs		
                                         OCDD'...™	
                                        2. Furans:
                                         Mono-, Dl-, and TriCFDs ..
                                         2,3,7,8-TCDF 	
                                           Other TCDFs	
                                         2,3,4,7,8-PeCDF	
                                         1,2,3,7,8-PeCDF 	
                                           Other PeCDFs..	........
                                         2,3,7,6-HxCDFs  	
                                           Other HxCDFs	
                                         2,3,7,8-HpCDFs  .„	
                                           Other HpCDFs 	
                                         OCDF	
TEF
value
 0
 1
 0
 0.5
  .0
  .1
  .0
  .01
  .0
  .001

 0
 0.1
  .0
  .5
  .05
  .0
  .1
  .0
  .01
  .0
  .001"
                                       5. Request for Comments
                                         EPA requests comment on each
                                       element of the text for the two
                                       approaches to additivity presented in
                                       sections 3 and 4 above, including all
                                       subjects and issues raised in the
                                       preamble discussion whether or not
                                       specific regulatory text has been,
                                       provided in the proposed Guidance, and
                                       any suggested alternative requirements
                                       or combinations of requirements to
                                       address these elements and issues in the
                                       final rule. EPA may promulgate final
                                       rules based on any of the issues or
                                       subjects discussed in this preamble or
  based on a combination of possible
  requirements to address these subjects
  and issues.

  E. Reasonable Potential for Exceeding
  Numeric Water Quality Standards
   The purpose'of this section is to
  define the proposed procedures for
  determining whether an NPDES permit
  for discharges to the Great Lakes System
  must include a water quality-based
  effluent limitation for a parameter or
  pollutant parameter (not including
  whole effluent toxicity). Considerations
  related to whole  effluent toxicity and
  the basis for such considerations are
  addressed separately in section G of this
  preamble. The proposed Guidance
  would require permitting authorities to
  follow specific procedures where
  facility-specific effluent monitoring  data
  is available. Where this data is not
,  available, including when all available
  effluent data for a pollutant or pollutant
.  parameter is below the applicable
  analytical detection level, this Guidance
  does not establish any new or specific
  requirements, and permitting authorities
  will continue to follow existing Federal,
,  State or Tribal regulations and guidance.
  Existing guidance for determination of
  reasonable potential in the absence of
  facility-specific effluent monitoring data
  are discussed in section S.E.I of the
  preamble, below.

  1. Existing National Rules and Guidance
   EPA's existing regulations require
  NPDES permits to contain effluent
  limitations necessary to meet applicable
  technology-based requirements of
  Federal and State law. These
  technology-based limitations are
  derived directly from application of
  National effluent limitation guidelines
  or on the basis of the permitting
  authority's best professional judgment
  (40 CFR 125.3); States are currently
  required to adopt regulations consistent
  with these provisions as part of their •
  approved NPDES State permitting
  program (40 CFR 123.25(a)(36)J, EPA is
  not proposing to amend the
  requirements governing the
  establishment of technology-based
  limitations in to the proposed Guidance.
   In addition to these technology-based
  requirements, EPA's existing regulations
  require NPDES permits to include water
  quality-based effluent limitations
  (WQBELs) to control all pollutants or
 pollutant parameters.which the      . ..
 permitting.authority determines are or
  maybe discharged at a level which will
,  cause, have the reasonable potential  to
  cause, or contribute to an excursion
  above any water quality standard,
 including numeric and narrative criteria
  for water quality (40 CFR 122.44(d)(l))..

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Federal Register T Vol. 58, No; 72 7 FrUiayv
                                                                       16,' 1993 / Proposed Rules
                              20945
 When determining whether a discharge
 will cause, has the reasonable potential
 to cause, or contributes to an excursion
 above any State or Tribal water quality
 standard, the permitting authority must
 use all relevant available data, including
 facility-specific effluentmonitoring data
 where available. Additionally, the   ,
 permitting authority must use
 procedures which account for existing
 controls on point and nonppint sources
 of pollution; variability of the pollutant
 or pollutant parameter in the effluent;
 and, where appropriate, the dilution of
 the effluent in the receiving water (40
 . CFR 122 44(d)(l)(ii)). If the permitting-
 authority determines that a discharge  .
 has the reasonable potential to cause or
 contribute to an excursion of an
 applicable numeric or narrative water
 quality criterion, it must include a
 WQBEL for the individual pollutant in
 the permit (40 CFR 122.44(d)(l)(iii)). In
 the absence of a numeric water quality
 criterion for an individual pollutant
 under these circumstances, the'    •
 permitting authority must derive
 appropriate WQBELs from thq State or
 Tribal narrative water quality criterion
 by: using a calculated numeric criterion
 for the pollutant that attains the
 applicable narrative criterion and
 protects designated uses; establishing
 effluent limitations on a case-by-case  '
 basis using EPA's water quality criteria
 developed under section 304(a) of the
; Clean Water Act, supplemented with
 other information where necessary; or
 establishing effluent limitations on an
 indicator pollutant (40 CFR
   EPA has provided guidance on how to
 apply these requirements in the
 "Technical Support Documenifor Water
 Quality-based Toxics Control (TSD)"
 (EPA/505/2-90-081,. March 1991),
 which is available in the administrative
 record for this rulemaking. Copies are
 also available upon written request from
 the person listed in section XIII of this
 preamble. In the TSD, EPA recommends
 that facility-specific effluent monitoring
 data be used, where available, to project
 receiving water concentrations, which
 are then compared to water quality
 criteria. This comparison in the TSD
 guidance is comprised first of
 calculating the pollutant concentration
 in the receiving water after considering
 dilution (if allowed by the water quality
 standards regulation), the contributions
 .of other point and nonpoint sources,
 and the potential for effluent variability
 ,to justifyhigher effluent concentrations:
 . than have actually been measured; and
 second, comparing this calculation to
 the applicable water quality criterion.
 The TSD guidance allows the permitting
                       authority the flexibility to determine the
                       appropriate approach for assessing
                       reasonable potential. For example, an.
                       authority may opt to use a stochastic   ,
                       dilution model that incorporates both
                       ambient dilution and effluent variability
                       rather than use a steady state dilution   ;
                       model with a statistically defined
                       maximum effluent concentration. Also,
                       a permitting authority may develop a
                       WQBEL in lite absence of facility-
                       specific effluent monitoring data.    .
                       Whatever approach is selected by the
                       authority, it must satisfy all   .
                       requirements of 40 CFR 122.44(d)(l)(ii)
                       summarized above.
                         One of four outcomes will be reached
                       when using the TSD protocol:
                         a. Excursion Above the Water Qualify
                       Standard. If the permitting authority  .
                       determines that pollutants or pollutant
                       parameters in a facility's discharge are
                       or may be discharged at a level which
                       causes or contributes to an excursion
                       above a narrative or numeric water
                       quality criterion, it must establish a
                       WQBEL m the permit for those
                       pollutants (40 CFR 122.44(d)(l)(i).
                         b. Reasonable'Potential for Excursion
                       Above the Water Quality Standard, If
                       the permitting authority determines that
                       pollutants or pollutant parameters in a
                       facility's discharge are or may be
                       discharged at a level which has the
                       reasonable potential to cause or '. - .
                       contribute to an excursion above a
                       narrative or numeric water quality
                       criterion, it must establish a  WQBEL in
                       the permit for that pollutant (40 CFR  :
                       122.44(d)(l)(i)J. EPA believes that
                       reasonable potential is shown where an
                       effluent in conjunction with other
                       sources of a pollutant is projected to
                       cause an excursion above the water
                       quality criterion. This projection is
                       based upon an analysis of available data
                       that accounts, for limited sample size
                       and effluent variability. EPA's guidance
                       in the TSD does not, however, constrain -
                       the determination of reasonable
                       potential to a projection of an excursion
                       above a water quality criterion based
                       solely on effluent variability. The   .   ,
                      . guidance recognizes that reasonable
                       potential determinations include
                       consideration of the factors in 40 CFR
                       122.44(d)(l)(iij and any other
                       appropriate factors based on the
                       professional judgement of the
                       permitting authority. These other factors
                      ; may include the existing data on toxic .
                       pollutants; type of receiving water and
                      . designated uses (e.g., high-use fishery);
                       relative proximity to the-water quality
                       standard; existing controls on point and
                       nonpoint sources; compliance history of
                       the facility; and type of treatment
                       facility.            ,:    ,
  c. No Reasonable Potential for
Excursions Above the Water Quality
Standards. If the permitting authority
determines that the pollutants or
pollutant parameters in a facility's
discharge are not discharged at a level
that have the reasonable potential to
cause or contribute to an excursion
above a narrative or numeric water
quality criterion, then a WQBEL for
those pollutants is not necessary. In
these situations, EPA's guidance
recommends that the effluent.
monitoring be repeated at a frequency of
at least once every five years (see TSD
at p. 64).
  d.Inadequate Information. If a
permitting authority has inadequate
information to determine whether a
discharge contains pollutants or
pollutant parameters which are or may
be discharged at a level which has the
reasonable potential to cause or  '
contribute to an excursion of a narrative
or numeric water quality criterion,  ..
EPA's existing guidance recommends
that the permit contain appropriate
monitoring requirements and a reopener-
clause (see TSD at p. 64). This clause
would require reopening of the permit
and establishment" of a WQBEL based
upon any monitoring results or other
new factors which substantiate that the
effluent causes, has the reasonable
potential to cause, or contributes to an
excursion above water quality     ..:.
standards.

2. Proposed Procedure 5
  Procedure. 5 of the proposed Guidance
requires jthe permitting authority to
include a WQBEL in an NPDES permit
whenever a pollutant is or may be   r
discharged into the Great Lakes System
at a level which will cause, have the  •
reasonable potential to cause, or     •
contribute to an excursion above any    •
Tier I criterion or-Tier H value.      .
Procedure 5 of appendixF to part 132
sets forth a two-step process for
.determining whether the discharge of a
pollutant will cause, have the  -
reasonable potential to cause, or
contribute to an excursion above any
Tier I criterion or Tier II value. -."-..-.
  First, under procedure 5.A of      :
appendix F, permitting authorities must
develop preliminary effluent limitations
that will ensure that all Tier I criteria
and Tier n values will be met in-stream, ••
after discharge where there is sufficient
data to develop such criteria or values.
If such data do hot exist, permitting
authorities must apply the provisions in.
procedure 5.D of appendix F to
determine whether such data must be
generated. Second, procedure 5..B and
5.C of appendix F set forth procedures  ;
to be followed to determine: the,  •...'...-  .

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 20946          Federal Register / Vol. 58, No.  72 I Friday, April  16,  1993 / Proposed Rules
 projected effluent quality (PEQ) of the
 effluent that will be discharged; and
 whether a WQBEL must be established
 based on specified ratios between the
 PEQ and the preliminary effluent
 limitation. If such effluent data do not
 exist or if all such effluent data for a
 pollutant or pollutant parameter are
 below the analytical detection level for
 that pollutant or pollutant parameter,
 permitting authorities will continue to
 apply existing Federal, State or Tribal
 regulations and guidance for making
 reasonable potential determinations.
 Finally, procedure 5.E of appendix F
 provides that, regardless of the manner
 in which the reasonable potential
 determination is made, all effluent
 limitations must also comply with all
 other applicable State, Tribal and
 Federal requirements.
  The proposed Guidance provides
 permitting authorities with specific
 requirements for making reasonable
 potential determinations based on
 faeilUy-spacific effluent monitoring data
 consistent with the provisions of 40 CFR
 122.44(dKlXO. (ii), (Hi), and (vi). As
 discussed in section n.D of the
 preamble, the proposed Guidance
 requires the States and Tribes to adopt
 the Tier I criteria in Tables 1 through 4
 of 40 CFR part 132 and the
 methodologies for deriving Tier I
 criteria and Tier n values in appendixes
 A, C, and D of 40 CFR part 132 into their
 water quality standards for the Great
 Lakas System. Part 132.3 of the
 proposed Guidance defines Tier I
 criteria as:
  * * * numeric values derived by use of the
 Tier I methodologies in appendixes A, C and
 D, Uia methodology in appendix B, and the
 procedures in appendix F, that either have
 MO a adopted as numeric criteria into a water
 qutlity standard or aro used to implement
 narrativo water quality criteria.
 Tier n values are defined as:
  • * * numeric values derived by use of the
 Tier II methodologies in appendixes A, C and
 D, tho methodology in appendix B, and the
 procedures in appendix F, that are used to
 Implement narrativo water quality criteria.
 Procedure 5 implements the provisions
 of 40 CFR 122.44(d)(l)(i) for discharges
 %vithin the Groat Lakes System by
 requiring that WQBELs be established
 whenever pollutants or pollutant
 parameters "are or may be discharged at
 a level which will cause, have the
 reasonable potential to cause, or
 contribute to an excursion above any
 State water quality standard, including
 State narrative criteria for water
 quality." Procedure 5 of appendix F is
 also consistent with the provisions of 40
 CFR 122.44(dKD(iiilrequiring WQBELS
bo established whenever a discharge
 "causes, has the reasonable potential to
 cause, or contributes to an in-stream
 excursion above the allowable ambient
 concentration of a State numeric
 criterion" because the Tier I criteria will
 serve as minimum numeric water
 quality criteria for the Great Lakes
 System.
  Procedure 5 of appendix F to part 132
 is also consistent with the provisions of ,
 40 CFR 122.44(d)(l)(vi)(A). This section
 requires authorities to establish
 WQBELS to implement narrative water
 quality criteria using one or more of the
 specified options. Option
 122.44(d)(l)(A) allows the permitting
 authority to establish WQBELs using a
 calculated numeric water quality
 criterion for the pollutant that will
 attain and maintain applicable narrative
 criteria and fully protect the designated
 uses. The Guidance implements this
 option by providing Tier I and Tier n
 methodologies to translate narrative
 water quality criteria into numerical
 criteria or effluent limitations.
  Finally, procedure 5 of appendix F to
 part 132 also includes consideration of
 controls on point and nonpoint sources
 and dilution (see procedure 5. A of
 appendix F) and effluent variability
 through statistical characterizations (see
 procedures 5.B and 5.C of appendix F),
'and is, therefore, consistent with the
 requirements of 40 CFR 122.44(d)(l)(ii).
  The procedures of this section are not
 intended to implement the regulations
 at 40 CFR 122.44(d)(l) (iv) and (v)
 which pertain to whole effluent toxicity.
 These provisions are implemented by
 procedure 6 of appendix F of the
 proposed Guidance. Furthermore, the
 procedures of this section do not affect
 the permitting authorities' existing
 obligation to implement the regulations
 at 40 CFR 122.44(d)(l)(vii) which
 pertain to expression of WQBELs.
  a. Developing Preliminary Effluent
 Limitations. Procedure 5.A of the
 proposed Guidance describes how the
 permitting authority must establish
 preliminary effluent limitations. For a
 specific water body or stream segment,
 the allowable total maximum daily load
 (TMDL) for a pollutant is defined as the
 sum of the individual wasteload
 allocations (WLAs) and load allocations
 (LAs); a margin of safety is included to
 ensure that allocated loads, regardless of
 source, will not produce an excursion
 above water quality standards. The
 WLAs are those portions of the TMDL
 assigned to point sources; the LAs are
those portions of the TMDL assigned to
nonpoint sources and background
 sources. (40 CFR 130.2(f)). Iii procedure
 5. A of appendix F of the proposed
 Guidance, the permitting authority is
required to develop preliminary
 wasteload allocations based upon and
 consistent with the wasteload allocation
 procedures defined in procedure 3 of
 appendix F of the proposed Guidance,
 and then develop preliminary effluent
 limitations based on the preliminary
 wasteload allocations.
  Procedure 5.A.2 of appendix F of the
 proposed Guidance specifies the
 procedure for developing preliminary
 effluent limitations based on the
 preliminary wasteload allocations. The
 preliminary effluent limitations are
 expressed as either a single day value,
 a weekly average, or a monthly average,
 and are used in determining if a facility
 causes, has the reasonable potential to
 cause or contribute to excursions above
 water quality criteria by being compared
 to actual effluent information in
 procedure 5.B of appendix F. Because
 the preliminary effluent limitations are
 for use to compare to actual effluent
 information, the Guidance expresses the
 preliminary effluent limitations in the
 same form that effluent data are
.typically available to permitting
 authorities. Effluent information is
 typically available to jpermitting
 authorities either in the permit,
 application or in the Discharge
 Monitoring Records (DMR). Both the
 application for.rns and DMRs require
 effluent concentrations to be reported as
 weekly and monthly averages for
 publicly owned treatment works
 (POTWs) and as single day values and
 monthly averages for non-POTW. The
 use of these single day values, weekly
 averages, and monthly averages allows
 for direct comparison of preliminary
 effluent limitations to effluent data
 without requiring additional
 manipulations or conversion of the
 effluent data. EPA believes that this
 reduces the burden to the permitting
 authorities and facilities in reviewing
 and using effluent concentration data in
 determining if a WQBEL is necessary.
  Each preliminary wasteload allocation
has a corresponding preliminary
effluent limitation which matches to the
extent possible the criterion (or value)
and dilution basis used to develop the
wasteload allocation. The preliminary
effluent limitation based on wildlife
criteria is expressed in proposed section
 5.A.2 as a monthly average because the
wasteload allocation is calculated usiiig
a 30-day (monthly) average flow under
proposed procedure 3 of appendix F.
The preliminary effluent limitation
based on human health criteria is
expressed as a monthly average because,
although the wasteload allocation is
calculated using a harmonic mean
 (annual) river flow, the monthly
averaging period is the closest
expression of the preliminary effluent

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                 Federal, Register / Vol.  58, No. 72 /Friday,^ April  16,  1993 / Proposed Rules
                                                                    20947
 limitations to an annual average. The   ,
 preliminary effluent limitation eased on
 acute aquatic life .criteria is expressed as
 a daily value to reflect that the criteria
 themselves are expressed as: one-hour   ;
: averages and the wasteload allocation is
 calculated using a seven-day (weekly)
 average 'river flow. The preliminary .
 effluent limitation based on chronic
 aquatic life criteria is expressed as a
 weekly average value to reflect that the
 criteria themselves are expressed as
 four-day averages and the wasteload;
 allocation is calculated using a seven- -
 day (weekly) average river flow. In      :
 addition, the preliminary'effluent
 limitation based on chronic aquatic life
 criteria can as an option be expressed as
 a monthly average value to reflect that
 weekly average effluent data; may not be
 available for non-POTW facilities.
   Because the preliminary effluent
 limitations are based on the preliminary
 wasteload allocations; procedure S.A.I
 of appendix F accounts for dilution and
 existing controls on point and.nonpoint
 sources of pollution, two of the required
 factors of federal NPDES regulations at
 40 CFR 12'2.44(d)(l}(ii). The remaining
 factor of 40 CFR 122.44(d)(l)(iij, the
 potential for effluent variability, is
 accounted for in procedures 5.B and S.C
 of appendix F of the proposed
. Guidance.      r
  : The proposed procedures in
 procedure 5. A of appendix F are limited
 to determination of the need for a
 WQBEL. Procedures for converting
 wasteload allocations into WQBELs and
 for expressing effluent limitations in    .
 NPDES permits shall continue to be
 governed by existing State, Tribal and
 Federal requirements or guidance (see
 40 CFR 122 45(d) and (e)).
   EPA invites comment on all aspects of
 the proposed methodology for  .•
 calculating a preliminary effluent
 limitation, including the
 appropriateness of specifying a
 methodology and any suggested
 alternative methodologies. In particular,
 EPA invites comment on whether.the
 preliminary effluent limitation needs to
 be expressed using exactly the same   ;
 terms as the wasteload allocation (e.g.,
 an annual average preliminary effluent
 limitation based on a wasteload
 allocation for human health protection),
 EPA also invites specific comment on
 the use of probabilistic or dynamic
 modeling procedures to calculate the
 preliminary wasteload allocations
 instead of the procedures proposed in
 procedure 3 of appendix F.
   •b. Determining yVhether There is
 Reasonable Potential to Exceed the
 Preliminary Effluent Limitations.
 Procedures 5.B and 5.C of appendix F of.
 the proposed Guidance specify.
 procedures for determining the        .,
 Projected Effluent Quality (PEQ) based
 on fadlity-specific-effluent monitoring
 data. Available effluent monitoring data
. includes information from discharge
 monitoring reports (DMRs), data from
 NPDES permit application forms 2A and
 2C, and other data requested of or
 submitted by the facility of'available to
 the permitting authority. Procedures 5.B
 and S.C of appendix F specify         -
 procedures for determining the PEQin .
 three different situations: procedure,   ;.'.
 5.B.1 of appendix F addresses situations
 where ten or more effluent data points
 are available and the effluent flow rate
 is less than the seven-day, 10-year low
 flow rate of the stream, or the discharge
 is to the' Open Waters of the Great Lakes;
 procedure 5.B.2  of appendix F addresses
•situations where tea or more effluent   ;
 data points are available and the
 effluent flow rate is equal to or greater
 than the seven-day; 10-year, low flow of,
 the stream; and procedure 5 C of,
 appendix F addresses situations wherei
 at least one but less than ten data points
 exist, regardless  of the effluent flow rate.
   i.  Determining Reasonable Potential' ,
 Where Ten or More Effluent Data Points
 are Available and the Effluent Flow Rate
 is Less than the 7-day, W-yearFlow
 Rate or the Discharge is to Open Wafers
 of the Great Lakes. Procedure S.B.I of ;
 appendix F to part 132 provides two
 alternative methods of developing the
 PEQ for discharges to the open waters
 of the Great Lakes or to free flowing.
 streams where the effluent flow rate is ..'
 less than the stream seven-day, 10-year
 flow. The first method, which is set
 forth at procedures  S.B.I.a through c of
 appendix F, requires the PEQ to be
 specified as: Thp greater of the
 maximum daily  effluent concentration
 or the' 89th percentile of the distribution
 of the daily data; the 99th percentile of
 the; distribution  of mbnthly averages;
 and the 99th percentile of the
 distribution of weekly averages. Under,
 this first method, a WQBEL must be   ,
 established if the maximum effluent
 concentration or the 99th percentile,of
 the  available daily data .exceeds the,
 preliminary effluent limitation based  on;
 the  criteria and values for the protection
 of aquatic life from acute effects; the
 99th percent^ of the distribution of
 monthly averages exceeds the   ^
 preliminary effluent limitation based  on
' criteria and values to protect aquatic life
 from chronic effects, human health or
 wildlife; or the 99th percentile of the   .
 distribution of weekly averages exceeds
 the  prelimuiary  effluent limitation T
 based on the criteria and values for
 protection of aquatic life from chronic
 effects.
   The basis for the first approach is that
 reasonable potential decisions must be
 performed ;forthose effluent and ,
 environmental conditions which cause,
 have the reasonable potential to cause or
 contribute to an excursion above a water
 quality criterion. The consideration of
: effluent variability is an important    .
 component of the reasonable potential   •
 decision. Accordingly, the Great Lakes
 Initiative Steering Committee developed.
 procedure 5;B.l.a through S.B.l.c of
 appendix F to provide a statistical   ;
 approach to better characterize the   "  '
 effects of effluent'Variability as
 measured by a predicted maximum
 effluent concentration. In the proposed
 rule, the estimated maximum
 concentration is calculated, in most  .
 applications, as an upper bound (99th
 percentile) of the distribution of effluent
 concentrations. The 99th percentile was
 selected as a reasonable measure of the
 maximum effluent concentration. Where
 a sufficient number of effluent .
 measurements exist, the maximum  .
 value of all of the concentrations may be
 a close approximation of the 99th
 percentile concentration! The
. information is then used by the    ,
 permitting authority to determine the
 need for a WQBEL.  '-' ' •    .
   The second method, which is set forth
 at procedure S.B.l.d'of appendix F to
 part 132, provides that the PEQ may be
 calculated as the upper 95 percent
 confidence level of the 95t£ percentile
 based on a log-normal distribution  of  '
 the effluent concentration data. This
 statistical procedure is consistent with
 the procedure described in section  3.3
 of the TSD. Procedure S-.B.l.d of •'.
 appendix F specifies that a WQBEL
 must be established if the PEQ, as
 calculated under this second method," ,
 exceeds any/of the preliminary effluent •''•'
 limitations developed in accordance
 with section 8.A.  '     ,
   The basis for procedure: S.B.l.d of
 appendix F to part 132 is that all
 effluent assessment approaches for
 individual pollutants have some degree
 of uncertainty associated with them. .
; The more limited the amount of test
• data available, the larger the uncertainty
• and the lower the precision of the
 methodology for characterizing the
 maximum effluent concentration.
 Because of this uncertainty, EPA
. developed the guidance in the TSD to
 provide a statistical approach to better
 characterize the effects of effluent
; variability and reduce uncertainty in the
 process of deciding whether to require
 a WQBEL for a particular pollutant. The.
 TSD guidance combines knowledge of
 effluent variability as estimated by a
 coefficient of variation with the  *   ..
, uncertainty due to a limited number of.

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20948
Federal Register / Vol. 58. No. 72 /Friday, April 16, 1993  /Proposed Rules
data to project an estimated maximum
concentration for individual pollutants
In a facility's effluent. The estimated
maximum concentration is calculated as
an upper bound of the expected
lognormal distribution of effluent
concentrations at a high confidence
level, Tn0 information is then used by
tha permitting authority to determine
the need for a WQBEL.
  Procedure S.B.l.d of appendix F to
pert 132 is based on the principles
expressed in the TSD guidance
document. Under procedure S.B.l.d of
appendix F to part 132, the PEQ is
calculated by multiplying the maximum
effluent concentration value by a factor
which represents the uncertainty in the
dcgroo of variability in the effluent. The
specific value of this factor depends
upon the number of effluent
concentration values and the variability
of the effluent. The proposed Great
Lakes Guidance provides these factors
to Table 1 of procedure 6 of appendix
F.
  Tho calculation of the factors in Table
8 of procedure 6 of appendix F to part
132 has two parts. The first is
characterization of the highest measured
effluent concentration based on the
desired confidence level. The
relationship that describes this is:

    pn S: (1 - confidence level)1/n
%vhera "pn" is the lower bound ("worst
case") percontile represented by the
highest concentration in the data and
"n" is the number of samples.
  The second part of this calculation is
a relationship between the percentile
described above and the selected upper
bound of the lognormal effluent
distribution. EPA's industrial treatment
effluent database, which was used by
EPA to develop and  promulgate effluent
guidelines, suggests  that the lognormal
distribution characterizes effluent
concentrations well. For example, if five
samples were collected (of which the
highest value represents at least the 40th
percentile at the upper 95 percent
confidence level), the coefficient of
variation is 0.6, and  the desired upper
bound of the effluent distribution is the
95th percentils, then the two percentiles
can bo related using  the coefficient of
variation (CV) as shown below:

C9S =  exp(l.645(T-0.5a*)  =^

c4Q   exp(-0.258
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                  Federal Register  / Vol. 58, No.  72 /.Friday, April  16,  1993  /  Proposed Rules          20949
 year FlowRate.. Procedure 5.B.2 of    •
 appendix F the proposed Guidance
 establishes requirements .for situations
 where the effluent flow rate is equal to
 or greater than the critical low flow of
 the stream (7Q10) and 1Q or more
 effluent data points are available. In
 such effluent dominated discharge
 situations, the requirements are
 identical to those in procedure 5.B.1 of
 appendix F with two exceptions: The
 maximum effluent value, the 99th
 percentile value of daily samples and
 the 99th percentile value weekly and
 monthly averages must be compared to
 50 percent of the preliminary effluent.
 limitations based on wasteload
• allocations (instead of to the full 100
 percent of the preliminary limitations);
 and use of the statistical approach   ':
 contained in procedure S.B.l.d of
 appendix F is precluded. Open Waters
 of the Great Lakes System are not
 considered to be effluent dominated
 under any circumstance because the-
 volume of surface water is much greater
 than the volume of effluent;       '
  , With respect to the first difference,
 the proposed  requirement to compare
 the PEQto 50 percent'of the preliminary
 effluent limitation will not increase the
 stringency of a WQBEL; instead it better
 ensures that a WQBEL will be included
 in a NPDES permit in effluent
 dominated, situations in the Great Lakes
 System due to the lack of ambient
 dilution to compensate for the effects of
 high effluent concentrations. Because
 the procedures in procedure 5.B of
 appendix F are based on statistical
 estimates, there is a smalTpotential for
 a facility to discharge pollutants at
 higher concentrations that would
 exceed a water quality criterion. One
 fundamental principle of the statistical
 methods used in procedure 5.B of
 appendix F is that a*higher
 concentration is always possible
 although less  likely to occur. This
 potential is offset by consideration -of
 the available dilution in the receiving   -
 water, because the simultaneous    ,   ;
 occurrence of the high effluent
 concentration and low stream flow is
 rare. In contrast, there is little
' substantial ambient stream flow in
 streams with low dilution capacity. EPA
believes that the 50 percent factor in
 procedure 5.B of appendix F provides a
 reasonable level of assurance that a
 WQBEL is imposed where appropriate.
   With respect to the second difference,
 the statistical  approach described in -
 procedure S.B.l.d of appendix F to part
 132 does not provide a separate explicit
 mechanism to account for the need for
 additional assurances in low dilution
 streams. Rather, the approach addresses
 this factor implicitly in tJfre selection of  "
 the confidence level used. In instances
 of low dilution streams, a permitting
 authority could use a higher confidence
 levelto increase the likelihood that a
 WQBEL will be required and thereby
 provide the appropriate level of
 additional assurance. EPA believes that
 proper application of the proposed
 procedures under procedures S.B.l.d
 and 5.B.2 of appendix F may result in
 the same likelihood of requiring a   •
 WQBEL. EPA is not proposing to allow
 use of procedure S.B.l.d of appendix F
 in effluent dominated streams, however,
 because the TSD does not include
 specific guidance on how high to adjust
 the confidence level in these situations,
 EPA invites comment on whether the
 level of at least 50 percent of the
 potential limitation in a effluent
 dominated situation is reasonable to
 ensure that WQBELs are required where
 necessary, and whether the statistical
 approach in procedure 5.B.l,d of  '
 appendix F or an alternative approach
 based on the TSD should also be
 available as  an option to the permitting -
 authority,            -
   iii. Determining Reasonable Potential
 Where there is at Least One but Less
 than Ten Data Points Available.
 Procedure 5,C of appendix F to the
 proposed Guidance establishes
 requirements for determining reasonable
 potential for small data sets (those with
 .at least one,  but less than 10 samples).
 The approach in procedure 5.C of-
 appendix F is consistent with procedure
 5.B.l.d of appendix F discussed above
 and is also consistent with the
 recommendations in Chapter 3 of the
 TSD. Under this provision, a maximum
 value is calculated from the highest
 value in the  data set and a multiplying
 factor is based pn the assumption that
 the coefficient of variation is 0.6 for all
 effluents, EPA believes that where there
 are less than 10 items of data, the
 uncertainty in the coefficient of
 variation is .too large to calculate a
 standard deviation or mean with
 sufficient confidence. Based on the data
 in EPA's effluent guidelines database,
 which was used to develop and
 promulgate effluent guidelines for
 industrial wastewaters, a coefficient of
 variation of 0.6 typifies average effluent
variability. For this reason, only one
value of the coefficient of variation is
 assumed. If the maximum value thus
calculated is greater than the         ';
preliminary  effluent limitations based
 on the preliminary wasteload
allocations, a WQBEL must be included
in the permit,
  EPA invites comment on all aspects of
this provision, including whether a
distinction should be made basedjan'the
number of representative effluentHata
  samples, and whether 10 or less such
  samples is an appropriate basis for
  making a distinction. EPA also requests
  comment on establishing a coefficient of
  variation of 0.6 when there are fewer
  than 10 representative effluent data
  samples.
   c. Determining the Need for Water !
  Quality-based Effluent Limitations in
  the Absence of Effluent Monitoring Data
 fora Specific Facility. The proposed
  Guidance does not establish any new or
  specific requirements for determining
  the need for WQBELs in the absence of
  effluent data for a specific facility. In
 these instances, the permitting authority
  must continue to apply, existing : *
 regulations and procedures consistent
 with 40 CFR 122.44(d)(l) to determine
  on a case-by-case basis whether
 WQBELs are necessary. EPA's existing
 guidance recommends that the
 regulatory authority use a variety of     :
 . factors and information when
 determining whether or not a discharge
 will cause, has the reasonable potential
 to cause, or Contributes to an excursion
 of a" water quality standard if facility-
 •specific effluent monitoring data are
 unavailable. (See TSD at pp. 50-55.) At
 a minimum, the proposed Guidance,
 consistent with existing regulations,
 requires the permitting authority to
 consider the four factors identified in 40
 CFR 122.44(d)(l)(ii) in making a
 reasonable  potential determination
 regardless of the availability of facility-
 -specific effluent monitoring data.
   If the permitting authority, after
 evaluating all available information on
 the facility, is not able to determine
 whether the discharge will cause, has ','.
 the reasonable potential to cause, or
 contributes to an excursion above a
 water quality standard, existing EPA
 guidance provides that the authority
 should require whole effluent toxicity or
 chemical-specific effluent monitoring to
 acquire additional data. The permitting
 authority should require the monitoring
 prior to permit issuance, if sufficient
 time exists, or as a condition of the
 issued or reissued permit. If monitoring;
 is required  after permit issuance, the
 permitting authority should also include
, a specific reopener clause to allow for
 subsequent modification of the permit   .
 to include a WQBEL if the monitoring
 establishes  that the discharge causes,
 has the reasonable potential to cause, or
 contributes to an excursion above a •   -
 water quality .criterion. (See TSD at p.
 55)   -    .. ,. . -.'•••'. -    -.'-./.-     ..-.--
   EPA invites comments on whether
 existing guidance is sufficient for    •'
 determining the need for WQBELs in   ^
 the absence of facility-specific effluent
 monitoring data, or whether minimum
 requirements should be specified iivthe

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Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 / Proposed Rules
final Guidance. EPA also solicits
comments on any alternative procedures
to make this determination in the
absence of facility-specific data.
  d. Determination of Reasonable
Potential for Pollutants for Which Great
Lakss Tier It Values are Not Available.
Procedure 5,D of appendix F of the
proposed Guidance specifies
requirements for determining whether
pcrmitting-authoritios must generate or
require permittees to generate, data
sufficient to calculate Tier H values
when pollutants on Table 6 are known
or suspected of being discharged into
Lho Great Lakes System, but neither Tier
I criteria nor Tier n values have been
derived duo to a lack of toxicological
data. In some cases, toxicological data
for a particular pollutant may be
available which meets the minimum
database requirements for one of the
categories of Tier I criteria or Tier n
values, for example aquatic life, but not
for human health and wildlife. Other
cases may involve a pollutant present in
the effluent for which, no toxicological
data exist. A preliminary assessment
conducted by EPA indicates that there
are data currently available to calculate
Tier I or Tier E criteria/values for
aquatic life, human health and wildlife
for most of the pollutants in Table 6.
  EPA recognizes that it would be
preferable to have Tier I criteria
available to compute WQ3ELs in all
circumstances. However, the
development of Tier I criteria is often
costly and time-consuming. In the
absence of a Tier I criterion, the
permitting authority must have some
mechanism with which to interpret and
ensure that the narrative prohibition
against tho discharge of toxic substances
in toxic amounts is reflected in permits
(40 CFR 122.44(dKD(vi)).
  Tha Steering Committee considered
four options to address the discharge of
pollutants in the absence of Tier I
criterion: preclude discharge of the
pollutant unless and until a Tier I
criterion is developed; allow
unregulated discharge unless and until
a Tier I criterion is developed; allow
permitting authorities to translate the
narrative criterion into a numeric
criterion on a case-by-case basis; or
develop systematic methodologies for
deriving numeric criteria and
determining the need for a WQBEL to
implement the criteria in the absence of
a full database. As discussed in section
II.D of the preamble above, the proposed
Guidance implements the latter
option—to propose the use of a Tier II
methodology to derive values in the
absence of Tier I criteria. Consistent
with this decision, procedure 5.D of
appendix F proposes a methodology for
                      determining whether Tier n data must
                      be generated by the permitting authority
                      or discharging facility to determine the
                      need for a WQBEL for a pollutant in the
                      NPDES permit.
                        Procedure S.D.I of appendix F the
                      proposed Guidance requires the
                      permitting authority to use all available,
                      relevant information including
                      Quantitative Structure Activity
                      Relationship (QSAR) information and
                      other relevant toxicity information to
                      develop "ambient screening values" for
                      each of the following water quality
                      criteria categories: aquatic life (acute
                      and chronic); wildlife; and non-cancer
                      human health for pollutants included iri
                      Table 6 of the proposed Guidance.
                      These ambient screening values must be
                      specified at a level which would not be
                      expected to cause an excursion of the
                      narrative water quality standard.
                      Examples on development of ambient
                      screening values are provided in
                      "Technical Support Document:
                      Establishment of Ambient Screening
                      Values under the Great Lakes Water
                      Quality Initiative", February 1993,
                      which is available in the administrative
                      record for this rulemaking. Copies are
                      also available upon' written request from
                      the person listed in.section XIII of this
                      preamble.
                        Based on the specifics of the effluent
                      data base and discharge situation (i.e.,
                      whether there are more or less than 10
                      data points for the particular pollutant
                      in the effluent, and whether it is an
                      effluent dominated or a non-effluent
                      dominated receiving water), the
                      permitting authority must apply the
                      appropriate procedure described in
                      procedures 5.A, 5.B or 5.C of appendix
                      F to calculate a preliminary wasteload
                      allocation and preliminary effluent
                      limitation using the calculated ambient
                      screening value. If based on this
                      information, the permitting authority
                      concludes the discharge will cause, has
                      the reasonable potential to cause, or
                      contributes to an excursion above
                      ambient screening value, the regulatory
                      authority must either generate or require
                      the permittee to generate the data
                      necessary to derive Tier n values for the
                      protection of aquatic life, wildlife, and
                      human health for the pollutant. Once
                      sufficient data are generated to calculate
                      a Tier n value, the permitting authority
                      must follow the procedures set forth in
                      procedures 5.A through 5.C of appendix
                      F to determine whether a WQBEL must
                      be incorporated into an NPDES permit
                      based on the Tier n value.
                        Procedure 5.D.2 of appendix F of the
                      proposed Guidance includes an
                      alternative provision for existing
                      discharges of pollutants listed in Table
                      6 other than those identified as
 bioaccumulative pollutants of concern,
 if data sufficient to calculate Tier I     .
 criteria and Tier H values for aquatic life
 are not available. In these cases,
 proposed procedure 5.D.2 of appendix F
 does not require permitting authorities
 to generate or have the permittee
 generate the data necessary to derive
 Tier n values for aquatic life or include
 pollutant-specific, aquatic life-based
 effluent limits in the NPDES permit for
 the discharge of those pollutants if the
 discharge is to segments where a
 biological assessment has demonstrated
 no acute or chronic effects on aquatic
 organisms and the whole effluent has
 not exhibited toxicity in accordance
 with the procedures in procedure 6 of
 appendix F. Procedure 5.D.2 of
 appendix F allows this exception from
 the procedures in proposed procedure
 S.D.I of appendix F for non-  • •,
 bioaccumulative chemicals  of concern
 as defined in proposed 40 CFR 132,2.
  EPA is proposing procedures 5.D.1
 and 5.D.2 of appendix F to implement
 the existing NPDES regulation at 40 CFR
 122.44(d)(l)(vi). These regulations
 direct permitting authorities in the
 absence of an applicable numeric water
 quality criterion, to  establish effluent
 limitations for pollutants that cause,
 have the reasonable potential to cause,
 or contribute to an excursion of a
 narrative water quality criterion using
 one or more of the following options:
 calculate a site-specific numeric
 criterion; use EPA's water quality
 criteria (developed in accordance with
 section 304(af6f the Clean Water Act)
 supplemented where necessary by other
 relevant information; or establish
 effluent limitations on an indicator
 pollutant. Proposed procedure 5.D.1 of
 appendix F implements the first option
 by providing a mechanism to determine
 whether the effluent has the reasonable
 potential to cause or contribute to an
 exceedance of the Tier H values. As
 discussed in section n.D above, these
 values will serve as  calculated
 minimum water quality criteria for an,
 individual discharge to the Great Lakes
 System. The Steering Committee
 believed that a prescribed methodology
 for conducting reasonable-potential
 determinations was  necessary to
 improve consistent translation of
 narrative water quality criteria within
 the Great Lakes System. The proposed
 approach is also consistent with existing
 regulations which allow permitting
.authorities to require permittees to
 submit any data necessary to support
 permit development. If the permitting
 agency determines that a pollutant is or
 may be discharged at a level that will
 cause, have the reasonable potential to

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                 Federal, Register  /Vol.  58, No. 72 /Friday, April 16,  1993  /Proposed Rules         20951
 cause, or contribute to an exceedance of
 any water quality standard including
 narrative criteria, it may require the    ,
 submittal of data necessary to compute
 a WQBEL for that pollutant, including ,
 the data necessary to calculate a Tier I
' value. EPA invites comment on all
 aspects of this provision including
 whether permitting authorities should
 be allowed to use alternative procedures
 consistent, with 40 CFR 122.44(d)(l)(vi)
"in interpreting a State's narrative water
 quality criterion for the purposes of
 establishing a WQBEL.        ,    ":
   The proposed .Guidance in procedure
 5.D.1 of appendix F to part 132 does not
 require the permitting authority to
 estimate ambient screening values or to
 generate or require the generation of
 data sufficient to develop a Tier II value
 for human health based on carcinogenic
 effects; For such pollutants,, the Steering
 Committee believed that permitting   ..
, authorities already have sufficient
 information to protect human health
 from, carcinogenic effects by applying
 one of the three options specified in 40
 CFR 122.44(d)(l)(vi) for the purpose  of
 determining whether a discharge has the
 reasonable potential to cause or
 contribute to an exceedance of a,
 narrative water quality criterion for
 human health based on carcinogenic
 effects. In contrast to wildlife, aquatic
•life, and non-carcinogenic criteria, EPA
 has developed criteria pursuant to
 section 304(a) of the CWA or maintains
 information for developing a criterion to
.protecting human health from         ,
 carcinogenic effects for all but four, of.
 the "pollutants listed hi Table 6: 2-
 chloroethyl vinyl ether, 2-chlorophenyl
 phenyl ether, di-n-octyl phthalate, and
 octaehlorostyrene.. EPA currently does
 not have information to indicate
 whether these pollutants have the
 characteristics of carcinogens, and
 invites comment oh this.
   Permitting authorities must consider
 all relevant information, including
 criteria published by EPA pursuant to
 304(a), in making reasonable potential
 determinations under 40 CFR
 122-.44(d)(l)(vi). EPA believes that the   .
 above approach of using 304(a) criteria
, and other information available, to
 calculate a criterion satisfies the
' requirements of § 122.44(d)(i)(vi) while.
 providing flexibility to the permitting'
 authority to establish any necessary    :
 effluent limitations to meet narrative or
 numeric .water quality criteria and fully
 protect designated'uses. EPA invites
 comment on all aspects of this provision
 including whether the permitting  *
 authority should be required to generate
 ambient screening values and if
 necessary, generate or have generated
 data sufficient to develop a Tier n value
 based on the protection of human health
 from carcinogenic effects of pollutants.
   The proposed Guidance in procedure
 5.D.2 of appendix F also does not     ., !
 require the development of a Tier II
 value for the protection of aquatic life
 (except for those pollutants which are
.considered to be bioaccumulative
 chemicals of concern) if the permittee
 demonstrates through a biological     _"j
 assessment that there are no acute or
 chronic effects on aquatic life in the
 receiving water and that the, whole
 effluent does not exhibit acute or
 chronic toxicity based on the  "       '
 requirements in procedure 6 of  ,
 appendix F. EPA has developed
 guidance on conducting biological-.
 assessments in Rapid Bioassessment
 Protocols for Use in Streams and Rivers
 (EPA/440/4-89/001, May 1.989), which
 are available in the administrative
 record for this rulemaking. EPA believes
 that the results of a biological
 assessment in conjunction with acute
 and chronic toxicity tests serve as
 available, relevant information for the
 purposes of applying EPA's existing
 regulation at 40 CFR 122.44(d)(l)(vi)(C).
 This regulation allows permitting
 authorities, in the absence of an ,      :
 applicable numeric water quality
 criterion to establish any necessary
 WQBELs to control the pollutant by use
 of an indicator parameter..In the case of
 protection of aquatic life, EPA believes
 that whole effluent toxicity can serve as
 an indicator parameter in appropriate
 circumstances. Whole effluent toxicity
 measures the combined toxic effect of
 all chemicals in an effluent. This .--..-
 approach is. also consistent with EPA's
 policy on independent'application of
 water quality criteria discussed below
 because this procedure is limited to
 circumstances where whole effluent
 toxicity requirements are not exceeded,
 biological criteria are attained, and there
"are no data to develop a numeric
 criterion for the pollutant of concern.
, Because there is no.analogous indicator
 parameter for the protection of human
 health and .wildlife, EPA has proposed
 limiting application of this provision to
 the protection of aquatic life. EPA
 invites comment on all aspects of this
 provision including the exception from
 the requirement to generate data
 necessary to derive Tier II values for the
 protection of aquatic life if the permittee
 demonstrates that biological
 assessments have shown there are no
 acute or chronic effects  on aquatic life..
 and the whole effluent toxicity does not
 exhibit any acute or.chronic toxicity.
 EPA also invites comment on the types
 of information that comprise a valid
 bioassessment, including whether
 minimum requirements for conducting
 these assessments should be specified in
 the final Great Lakes Guidance.  .
   The proposed Guidance for procedure
 5.D.2 of appendix F does not allow a
 similar exception for bioconcentratable
 chemicals of concern (BCCs) because
 the use of whole effluent toxicity as an
 indicator parameter may not be
 appropriate for these pollutants. Whole
 effluent toxicity measures the combined
 effect of all toxic chemicals in an
 effluent over the duration of the test.
 The whole effluent toxicity test
 methodologies published as guidance by
 EPA .are conducted over a period of up
 to eight days, hi contrast, the effects of
 bioaccumulation of a pollutant on an
 aquatic organism may not be  observable
'within 30 days, and perhaps until the
 end of the lifetime of the organism. For
 this reason, EPA believes that whole
 effluent toxicity tests may be
 insufficient to identify significant toxic  ;
 effects of BCCs. EPA invites comment
 on all  aspects of this proposal including:
 whether the exception should apply to
 pollutants that have been identified as  -•
 BCCs.
   Application of procedure 5.D.1 of
 appendix F of the proposed Guidancels
 only required for pollutants in Table 6.
 The basis for selecting the pollutants hi;.'..
 Table 6 is discussed in section n of the  .
 preamble, above. EPA believes that
 requiring permitting authorities to
 generate or have permittees generate   :
 ambient screening values and   '      -
 potentially Tier n values for all    •...".
 pollutants present ih;or known to be  ,
 discharged to the. Great Lakes may be
 unnecessarily burdensome on regulated
 discharges or permitting authorities.
 EPA believes that limitation of      :
 procedure 5.D of appendix F to Table 6
 pollutants is a reasonable means to     .
 improve uniform application of
 minimum permitting requirements
^throughout the Great Lakes System for
 the'pollutants of most concern to EPA  ,
 and the .Great Lakes States within these "
 waters. Determinations of the
 appropriate WQBEL for a pollutant not ,
 identified in Table 6 will continue to be
 made subject to the requirements in 40
 CFR 122.44(d)(l)(vi) (A), (B), and (C). In
 applying  these regulations, permitting  :
 authorities may interpret State or Tribal
 narrative, water quality-criteria by either
 calculating site-specific numeric
 criteria; applying EPA's water quality
 guidance under section 304(a) of the
 Clean  Water Act, supplemented by other
 relevant information;  or establishing an
 effluent limitation on an indicator
 parameter for the pollutant of concern.
   EPA .invites comment on all         •.
 requirements and exceptions  in      •'->'•
 procedures 5.D.I and 5.D.2 of appendix

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 20952
Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993  /  Proposed Rules
 F including the procedure for
 determining whether the permitting
 authorities must generate or have the
 permittee generate the data necessary to
 derive Tier n values for the protection
 of aquatic life, wildlife, and human
 health for all pollutants known or
 suspected to be present in discharges;
 identification of procedures to minimize
 the costs of this data generation on
 permitting authorities and discharging
 facilities; and identification of
 procedures to minimize or eliminate
 possible inequities between facilities  ,
 due to application of the data generated
 by one facility to subsequent permitting
 decisions regarding other dischargers.
  Procedure 5.D.3 of appendix F of the
 proposed Guidance states that, where
 there is insufficient information to
 develop a Tier n value, nothing in
 procedure 5.D of appendix F precludes
 or denies the right of a State or Tribe to
 determine in the absence of the data
 necessary lo derive a Tier I criterion or
 a Tier n value, that the discharge of a
 pollutant will cause, have the
 reasonable potential to cause or
 contribute to an excursion above the
 State's narrative criterion for water
 quality or incorporate a WQBEL for that
 pollutant in a NPDES permit. This
 provision is consistent with section 510
 of the dean Water Act which expressly
 retains the State's authority to adopt and
 enforce standards, limitations or
 requirements more stringent than those
 in effect under the Clean Water Act.
 Finally, proposed procedure 5.D.4 of
 appendix F clarifies that if the
 permitting authority develops a WQBEL
 pursuant to procedure 5.D.3 of appendix
 F under other more stringent authority,
 it Is not obligated to generate or require
 tha permittee to generate the data
 necessary to derive a Tier n value for
 that pollutant When a permitting
 authority develops a WQBEL. the
 WQBEL must achieve State water
 quality standards including both
 numeric and narrative water quality
 criteria as required by 40 CFR
 122.44(d)(l)(vii). As previously
 discussed in the preamble, Tier n
 criteria are tha permitting authority's
 interpretation of narrative water quality
 criteria. Therefore, if a permitting
 authority establishes a WQBEL under
 other more stringent authority when a
 WQBEL is not mandated by procedure
 S of appendix F, it is not also required
 to apply the Tier H methodologies to
interpret that narrative water quality
 criterion.
  o. Consideration of Make Water
 Pollutants When Determining
Reasonable Potential—-i. Introduction.
The proposed Guidance in appendix F,
 procedure 5.A. through D., provides
                      procedures for permitting authorities to
                      determine if a discharge causes, has the
                      reasonable potential to cause or
                      contributes to an excursion above a
                      State or Tribal numeric or narrative
                      water quality criterion. These proposed
                      procedures require the permit authority
                      to establish water quality-based effluent
                      limitations upon determination that a
                      pollutant is or may be discharged at
                      sufficient levels to cause, have the
                      reasonable potential to cause or
                      contribute to an excursion above any
                      Tier I criterion or Tier II value.
                        The proposed procedures for
                      conducting reasonable potential
                      determinations in 5.A. through 5.D. do
                      not provide special considerations for
                      pollutants contained in a facility's"
                      intake water. In some'situations, the
                      sole or primary origin of a pollutant in
                      a discharge may be the'intake water for
                      a facility. For example, the origin of
                      many pollutants in once through
                      cooling water is the water body where
                      the facility obtains the water rather than
                     ' a facility wastestream.
                        Procedure 5.E. of appendix F of the
                      proposed Guidance provides a separate
                      mechanism for permitting authorities to
                      consider the presence  of intake water
                      pollutants in a facility's discharge when
                      determining the necessity for WQBELs.
                      Procedure 5.E. of appendix F would
                      allow the permitting authority to
                      determine that tha return of identified
                      intake water pollutants to the same body
                      of water under specified circumstances
                      does not have the reasonable potential
                      to cause or contribute to an exceedance
                      of water quality standards without
                      application of the reasonable potential
                      procedures set forth in procedure 5.A.
                      through 5.D of appendix F. Based on
                      this determination, the permitting
                      authority would not be required to
                      establish WQBELs for the identified
                      intake water pollutants. This procedure
                      would apply to facilities that return
                      unaltered intake water pollutants to the
                      same body of water without increasing
                      the mass loading rate or concentration
                      of the pollutant atthe edge of any
                      available mixing zone, and that do not
                      discharge the intake water pollutants at
                      a time or location that would cause
                      adverse water quality effects to occur
                      that would not have occurred if the
                      pollutants were left in place.
                        The proposed procedure would
                      supplement existing mechanisms to
                      modify technology-based effluent
                      limitations to reflect intake water
                      pollutants, and to derive appropriate
                      WQBELs for discharges to water that
                      exceed water quality criteria. These
                      mechanisms include Total Maximum
                      Daily Loads (TMDLs), temporary
                      variances from water quality standards,
modifications to designate uses, and
site-specific modifications to criteria.
Application of these existing
mechanisms to address intake water
pollutants is discussed below.
  In addition to the proposed procedure
5.E of appendix F to part 132, EPA
considered four alternative options for,
addressing intake water pollutants. Each
of these options is discussed in more
detail in subsection e.iv below.
  Option 1. Option 1 reflects the current
national approach. While EPA's existing
regulations do not provide for a special
credit for pollutants present in a
facility's intake water in the calculation
of WQBELs, several mechanisms are
available that may result in an
adjustment in a WQBEL to reflect the
presence of intake water pollutants (e.g.
TMDLs, temporary variances from water
quality standards, and changes in the
designated use of the water body or site-
specific criteria modifications). Option 1
would limit the regulatory procedures to
address intake water pollutants to these
existing mechanisms,,        •
  Option 2. In addition to allowing the
use of the procedures in Option 1,
Option 2 would allow a permitting
authority to modify WQBELs directly to
provide a full or partial credit for intake
water pollutants when the pollutants are
discharged to the same water body as
the intake water. A specified level of
credit would be allowed under this
approach even when the facility
contributes an additional amount of the
intake water pollutant from its process
waste stream.                  . •    .  •
  Option 3. This option is similar to
Option 3, but it would also allow the
permitting authority to modify WQBELs
when the source, of the intake water is
different from the receiving water.
  Option 4. This option is the initial
procedure developed by the Great Lakes
Technical Work Group. It is a
combination of Options 2 and 3 and
would provide a direct mechanism for
reflecting a credit, for pollutants in a
facUity's intake water under specified
circumstances.
  Although the Great Lakes Steering  .
Committee did not adopt the procedure
drafted by the Technical Work Group
(Option 4), it believed that the draft
Great Lakes Guidance should include  a
provision addressing the discharge of
intake water pollutants to the Great
Lakes System. Accordingly, EPA agreed
to Convene a separate workgroup to
evaluate the extent to which permitting
authorities may consider the presence of
intake water pollutants during the
development of WQBELs. Proposed
procedure 5.E of appendix F reflects the
efforts of this workgroup. EPA requests
comment on all aspects of this subject,

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                 Federal Register / Vol. 58, No.  72 / Friday, April  16.  1993 / Proposed Rules
                              20953
 including proposed procedure 5.33, all
 issues raised in the preamble discussion
 below, and any'suggested alternative
 requirements or" combinations of
 requirements to address the subject and
 issues in the final rule.
   iL Current National Approach—(A)
 Net/Gross Credits for Technology-based
 Limits. EPA's NPDES permitting
 regulation at 40 CFR i22.45(g) currently
 provides a mechanism for adjusting
 treatment technology-based effluent
 limitations to reflect credit for
 pollutants in a discharger's intake water.
 The regulation specifies the
 circumstances under which EPA will
• adjust a facility's technology-based '
 effluent limitation to account for the
 presence of pollutants in a discharger's
 intake water. The regulation provides
 that technology-based limitations shall
 be adjusted where the applicable
 effluent limitations guidelines direct
 limitations be applied on a net basis or
 where the discharger demonstrates that
 the presence of intake water pollutants
 prevents compliance with the
 applicable technology-based limitations
 despite proper installation and
 operation of the treatment systems. The
 regulation also identifies four specific
 conditions restricting the use of net
 credits:        •
   (1) The regulation precludes lie use
 of net credits for generic or indicator
 pollutants unless the permittee
 demonstrates that the constituents, of the
 generic measure in the, effluent and
 influent are substantially simikir or  . .  •
 unless appropriate additional limits are
 placed on process water pollutants.
   (2) Credit may be granted only to the
 extent necessary to meet the applicable
 technology-based limitation, up to a'
, maximum value equal to the influent
 value.
   (3) Credit is generally limited to
 discharges to the same body of water
 from which the .intake water is drawn
 although the Director may waive this
 requirement if no.environmental
 degradation will result.             •
   (4) Credit is precluded for return of
 materials generated from the treatment
 of intake water (e.g., raw water clarifier
 sludge).                •  - • ;  .
 .  The provision granting credit only to
 the extent necessary to achieve a
 technology-based limitation assures that
 a discharger uses the appropriate
 technology-based level of treatment (e.g.
 BPT/BAT/BCT) in removing pollutants
 that originate from the discharger's
 facility. This provision in essence
•;assures the proper operation of
 treatment technology.
   In the promulgation of this "40 CFR
 122.45(g), EPA declined to develop a
 similar mechanism to adjust water
quality-based effluent limitations to
reflect credit for intake water pollutants.
EPA explained that "[i]he Clean Water
Act's requirement to protect and
enhance water-quality is not   "     .
conditioned on factors such as intake   ;
waterqualityanditwould.be
inappropriate for EPA to impose such a
condition. Eligibility for a net credit
under these [technology-based]
regulations does not imply any right to
violate water quality standards." (49 FR
37998, 38027 (September 26,1984)).
EPA recognized the complexity of water
quality-based permitting, however, and
indicated that permit writers may take
the presence of intake water pollutants
into account, as appropriate, in
.individual permitting decisions. In all
cases, EPA noted that permit limits
"must be adequate to meet the water
quality objectives of the Clean Water -
Act when considered along with control,
requirements for other discharges to the
stream." (49 FR 38027 (September 26,
1984)). The existing mechanisms for   .
simultaneously considering control
requirements for all dischargers to a
single body of water are total maximum
daily loads (TMDLs) and NPDES
permits written to implement these
TMDLs. The use of TMDLs to address
intake water pollutants is discussed    -
further below,
  (BJ Consideration-of Intake Water
Pollutants for Water Quality-based
Limits, Existing National regulations
and guidance allow the permitting
authority  to utilize four mechanisms to
determine appropriate WQBELs when
the receiving water exceeds a water
quality criterion. These mechanisms
which are discussed below are total
maximum daily loads, variances,
removal of non-existing uses,  and site-
specific modifications to water quality
criteria.                    ,
  In addition to mechanisms, facilities
with intake water that contain
pollutants at concentrations above water
quality criteria.may be able to reduce
the level of these pollutants through
.pollution prevention measures.
Although pollution prevention is-a
voluntary action under the existing
NPDES permit program, pollution
prevention techniques can help reduce
the amount of a pollutant in an intake
water and therefore reduce the amount
of a pollutant that a facility may need
to discharge. For example, a facility
using groundwater contaminated with
DDT may be able to use an alternative
intake water source, such as a municipal
or surface water supply, that does not
contain this pollutant. Substitution of
an alternative source of intake water
may remove the necessity for or
decrease the stringency of any WQBEL
 and improve the quality of the receiving
 water body.
  Another type of pollution prevention
 involves source reduction within the
 facility. One example of this approach is
 a waste paper facility that discharges
 PCBs (that are present in a process
 waste stream and the' intake water
. source) to a receiving body of water that
 already exceeds the criterion for PCBs,
 By switching to a different source of
 waste paper, one with less PCBs in the
 ink, the facility maybe able to meets its <
 WQBEL without having to install
 additional treatment technology. This
 type of source reduction is also
 beneficial to the environment because '
 the effluent would contain less PCBs, a
 toxic bioaccumulative pollutant of
 concern.
  A second example of source reduction
 within a facility is a utility with an
, effluent containing copper due at least
 in part to corrosion from its copper
 pipes at a level that would have a
 reasonable potential to cause or
 contribute to an exceedance of the   '~
 criterion for copper. The facility could
 increase the hardness of the water that
 passes through the copper pipes,
 thereby reducing the amount of copper
 in the effluent from corrosion. The
 utility may then be able to comply with
 any necessary WQBEL for copper
 through this source reduction measure.
  In addition to pollution prevention
 efforts conducted by the facility,
 regulatory authorities may utilize four
 mechanisms to determine appropriate
 WQBELs when the receiving water
 exceeds a water quality criterion.
 Regulatory authorities may:
  (1) Develop an appropriate waste load
 allocation for the discharger through a
 TMDL that is designed to lead to
 attainment of water quality standards,
 pursuant to State requirements    '
 consistent with 40 CFR Part 130;
  (2) Grant a "temporary variance from
 water quality standards to an individual
 discharger, pursuant to State
 requirements consistent with 40 CFR
 131.10 and 131.13;
  (3) Remove a non-existing designated
 use where unattainable and designate a
 less stringent use and corresponding1
 criteria to protect existing and/or
 attainable uses pursuant to State
 requirements consistent with 40 CFR
 131.10; or
  (4) Develop a site-specific criterion for
 the water segment pursuant to State
 requirements consistent with 40 CFR
   If the permitting authority utilizes a
 TMDL, a WQBEL for the pollutant may
 be less stringent or unnecessary if the, '
 TMDL provides for the attainment of
 water quality standards .through load

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Federal Register / Vol. 58, No. 72/Friday,  April 16, 1993 / Proposed Rules
 reductions from other point or nonpoint
 sources. If the pennitting authority
 utilizes a variance from water quality
 standards, a modified designated use or
 a silo-specific criterion, a WQBEL for
 tha pollutant may be less stringent than
 the WQPEL necessary to meet the
 original criterion or unnecessary to
 reflect the temporary variance or change
 in tho State water quality standards.
  ,,As discussed below, application of
 one or more of these mechanisms may
 bo appropriate to reflect the presence of
 intake water pollutants above State
 water quality criteria. All four existing
 mechanisms can be applied whether toe
 discharge is to a body of water meeting
 or exceeding water quality standards,
 and regardless of the intake water
 quality. EPA offers this variety of
 mechanisms because decisions whether
 a WQBEL is necessary, and if so,
 establishment of the appropriate level,
 should be made on a case-by-case basis.
 In some situations, one of these
 mechanisms will provide a clear vehicle
 for establishing appropriate WQBELs
 whan background concentrations
 exceed water quality standards. For
 example, if the sole cause for non-
 attainment of water quality criteria is
 that the criteria do not reflect local
 unique conditions, then a site-specific
 criterion modification is the appropriate
 mechanism. In other cases, compliance
 with water quality standards may be
 possible only with a combination of
 mechanisms. Additional discussion of
 those mechanisms is also contained in
 the following preamble sections: section
 Vffl.D., TotalMaximum Daily Load,
 Wasteload Allocations Procedures;
 section VEI.C, Variances from Water
 Quality Standards; and section Vm.B,
 Site-Specific Modifications to Criteria/
 Values.
   (1) TMDLs. Section 303[d) of the CWA
 and 40 CFR 130.7 require States to
 dovolop TMDLs for waters that are not
 expected to meet applicable water
 quality standards after existing
 pollution control requirements
 (Including technology-based controls)
 are in place. A TMDL establishes the
 total allowable pollutant load that can
 exist in a body of water while
 maintaining water quality standards; the
 TMDL allocates this allowable load
 among all pollutant sources. A TMDL is
 tha sum of the waste load allocations
 (point source load allocations), load
 allocations (nonpoint source load
 allocations), a margin of safety to
 account for any uncertainties, and any
reserve capacity for future growth.
  Pollutants in a facility's intake water
may originate from upstream point
sources or nonpoint sources (including
natural background). If the TMDL
                      provides for the attainment of water
                      quality standards through load
                      reductions from sources other than the
                      facility's discharge, a WQBEL may be
                      unnecessary for the facility's discharge
                      of intake water pollutants.
                        EPA interprets section 303(d) of the
                      Clean Water Act as requiring States to
                      develop TMDLs and begin requiring
                      pollution control even in the absence of
                      complete information. EPA's April
                      1991, Guidance for Water Quality-based
                      Decisions: The TMDL Process, which is
                      available in the administrative record
                      for this rulemaking, encourages a
                      phased approach to TMDL development
                      in situations where data are incomplete
                      or modelling is difficult. Under the
                      phased approach, a TMDL is developed
                      using all available information,
                      professional judgment, and a margin of
                      safety to account for uncertainties. The
                      TMDL includes a monitoring plan and
                      a schedule for assessing the  attainment
                      of water quality standards after
                      implementation of the pollution
                      controls. The monitoring program acts
                      as a safeguard  and, if water quality
                      standards are not attained after ,
                      implementation of the TMDL or it is
                      determined that allocations could be
                      larger without exceeding standards, the
                      data obtained through the monitoring
                      program can be used to develop a
                      revised TMDL.
                        Phased TMDLs can be effectively used
                      to address the presence of intake water
                      pollutants and to remedy violations of
                      existing water quality standards by
                      fairly allocating the burden of reducing
                      undesirable discharges among all
                      sources. An example where a phased
                      TMDL may be appropriate to address
                      intake water pollutants is a facility that
                      discharges mercury attributed to both its
                      intake water and process waste stream
                      to a water body that exceeds the water
                      quality criterion for mercury. The
                      sources of ambient mercury in the
                      intake water include upstream
                     permitted point source dischargers, and
                     releases from contaminated sediments.
                     A phased TMDL could reflect projected
                       iductions in mercury loads  from  a
re
                     required or scheduled sediment
                     remediation proje'ct and from reductions
                     in discharges from upstream point
                     sources. Under these circumstances, the
                     pennitting authority may determine that
                     a WQBEL for mercury for this facility is
                     unnecessary or should be less stringent
                     to reflect the projected load reductions.
                     Additional load reductions by this
                     facility beyond the capability of the
                     required treatment technology would
                     not be necessary if attainment of
                     standards could be achieved by these
                     other measures. The TMDL would
                     identify the implementation plan for
  load reductions, document that these
  actions are expected to attain water
  quality standards based on predictive
  water quality models, and in the case of
  a phased TMDL, describe the plan for
  implementation, monitoring, and
  assessing whether standards are in fact
  attained after implementation.
  . Elimination or modification of
  WQBELs based on a phased TMDL may
  be available to dischargers whose intake
  water contains pollutants for which the
  water quality criteria are exceeded. The
  phased approach for TMDLs is
  discussed further in section VLI.D of the
  preamble.
   (2) Variances from Water. Quality
  Standards. Second, States may currently
  grant a temporary variance from water
  quality standards to an individual
  discharger pursuant to State
  requirements consistent with 40 CFR
  131.10 and 131.13 and National
  guidance. The intent of a variance from
  water quality standards is to provide a
  mechanism by which a permit can be
  written to meet an interim standard in
  situations where short-term compliance
  with the underlying non-attained water
  quality standard is demonstrated not to
 be feasible because of one or more of the
 reasons  listed in 40 CFR 131.10(g). In   ,
 addition, a variance from water quality
 standards maintains the designated use
 as a goal to be achieved in the long-term
 instead of removing a use where the
 current limiting conditions are
 considered ultimately correctable.
 Procedure 2.C of appendix F of the
 proposed Guidance would allow the
 Great Lakes States to continue to grant
 variances for -the same reasons
 recognized under the National program.
   There are several conditions under
 which variances from water quality
 standards may be granted that are
 appropriate to issues of background
 water quality. For example, a State
 could allow a variance under 40 CFR
- 131.10(g)(l) and proposed procedure
 2.C.1 of appendix F when "naturally
 occurring pollutant concentrations
 prevent the attainment of the use"; 40
 CFR 131.10(g)(3) and proposed
 procedure 2.C.3 of appendix F when
 "human caused conditions or sources of
 pollution prevent the attainment of the
 use and cannot be remedied or would
 cause more environmental damage to
 correct than to leave in place"; or 40
 CFR 131.10(g)(6) and proposed
 procedure 2.C.6 of appendix F when    :
 "controls more stringent than those
 required by sections 301(b) and 306 of
 the CWA would result in substantial
 and widespread economic and social
 impact.'' Such, variances may be
 available to dischargers whose intake

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                 Federal Regiister / Vol. 58, No.  72 / Friday, April 16, 1993 /Proposed Rule?
                                                                      20955
 water contains pollutants for which the
 water quality criteria are exceeded.
   An example where a variance may be
 appropriate is a situation where a
 stream bed contains sediments upstream
 of a permitted discharger contaminated
 by a specified pollutant, Resuspension
 of the contaminated sediments has
 resulted in an exceedance of the water
 quality criterion for the pollutant in-
: stream. Removing the sediments may
 .cause more environmental damage than
 to leave them in place for future  .
 remediation. The permitted facility
 discharges effluent containing this
 pollutant that is present hi both the
 intake water and in its process waste
 stream. By granting a variance and
 calculating an interim water quality
 criterion based on the current condition
 of the water body reflecting the
 background source of the pollutant, a
 WQBEL for this discharge would be
 established to meet this interim water
 quality criterion. This approach should
 still result in further improvement
 towards attaining the existing water
 quality standards..
   Another example  where a variance
 may be appropriate is a utility company
 with intake-water containing levels of
 copper that exceed the applicable water
 quality criterion. The facility's discharge
 also contains a small amount of copper
 due to corrosion of the facility's pipes.
 Adding a treatment system to remove
 the copper in the discharge to a level  '
 necessary to assure attainment of the
 designated use or switching to an
 alternative source of intake water might
 increase facility costs substantially. If
 those costs would result in large  •  ••-.
 increases in utility rates in the area, they
 could be considered to cause a
 substantial and widespread social and
 economic impact. By granting a variance
 from water quality standards that
 establishes an interim criterion for
 copper that accounts for the background
 level and the level of incidental removal
 obtained by the discharger's proposed or
existing treatment systems, an NPDES
permit could be written which enr.ures
compliance with the interim  criterion
without requiring additional treatment
by the facility. !
  Another example where a variance
may be appropriate is a regional public
water supply with an intake water that
contains an ubiquitous pollutant which
is found in almost all water bodies in a
watershed at about the same
concentration due to watershed-wide
contributions from nonpoint sources,
and for which the  concentrations exceed
the applicable water quality criterion.
Adding a treatment system to remove
the pollutant hi the discharge to a level
necessary to assure attainment of the
  designated use might result in large
  increases in utility rates in the area and
  could be considered to cause a
  substantial and widespread social and
  economic impact. Also, switching to an
  alternative source of intake water may.
  not be practical because the pollutant
  exists throughout the basin due to
  nonpoint sources. By granting a
'  variance from water quality standards
  that establishes an interim criterion for
  the pollutant that accounts for the
  background level and the level of
  incidental removal obtained by the
  discharger's proposed or existing
,  treatment systems, an NPDES permit
  could be written which ensures
  compliance with the interim criterion
  without requiring additional treatment
  by the facility.
    The use of variances to address
  discharges to water bodies exceeding
  water quality standards within the Great
  Lakes System is discussed further in
  section Vm.C of the preamble.
    (3) Modifications to Designated Uses,
 "Third, States may currently remove a
  non-existing designated use where
  unattainable and adopt less stringent:
  criteria to protect existing and/or
  attainable uses pursuant to State
  requirements consistent with 40 CFR
  Part 131.10. This regulatory provision is
  appropriate to address situations whe^e
  the water quality standards for a water
 body are not attainable hi the future. A
  State may remove'a designated use that
 is not an existing use if it can
  demonstrate that attaining the use is not
 feasible due to one or more of the six
 factors,in 40 CFR 131.10(g). These are
 the same factors for granting a variance
 identified in EPA's existing guidance
 and hi procedure 2 of appendix F of the
 proposed rule. A State is required to
 conduct a use attainability analysis in
 accordance with 40 CFR 131.10 if the
 revised uses are less than the fishable/
 swimmable goals of the CWA specified
 in section 101(a) or if the State adopts
 Subcategories of uses specified in
 section 101{a) which require less
stringent criteria.       . ;>.
   The proposed Guidance requires '
States to adopt specific numeric criteria
for the protection of human health that
' are equal to or more stringent than those
set forth in section 132.3, Table 3. All
of the criteria are calculated assuming
that the waters are used for fishing,
However, the Table includes both
cancer and non-cancer criteria that  .
differ depending on whether the State
waters are designated for (or have
existing) drinking water uses. For many
pollutants the criteria are more stringent
for waters with drinking water uses,   .-•••;
Thus, if States remove a non-existing
drinking water designated use for a
 water body, the human health criteria
 that would be required under the
 proposed Guidance would be less
 stringent for many chemicals than it
 would be otherwise. Similar relief is
 possible when the proposed human
 health methodology is used to derive
 criteria or values'for pollutants other
 than those listed in Table 3.
 Modifications of designated uses for
 aquatic life and wildlife protection
 would have no impact under the
 proposed Guidance because the criteria
 set forth in Tables 1, 2 and 4, and the
 criteria and values developed pursuant
 to methodologies referenced in § 132.4,
 apply to waters of the Great Lakes basin
 regardless of designated use. Site.'
 specific modifications to acute and
 chronic aquatic life criteria are available
 in procedure 1 of appendix F of the
 proposed Guidance hi those instances
 where local water chemistry alters the
 biological availability or toxicity of a
 pollutant or where the sensitivity of the
 local aquatic organisms differ
 significantly from the species used to
 develop the criteria. In addition, site
 specific modifications to  chronic  "
 aquatic life criteria are available in
 procedure 1 of appendix F of the
 proposed Guidance to reflect local
 physical and hydrological conditions.
   (4) Site-Specific Modifications to
 Criteria. Fourth, a State or permittee
 may develop site-specific criteria for a
 water body. Site-specific modifications
 need to be submitted to EPA for
 approval or disapproval pursuant to
 CWA section 303(c)(2). EPA guidance
 on development of site-specific, aquatic
 life criteria is contained hi Chapter 4 of
 the U.S.EPA Water Quality Standards
 Handbook, which is available in the
 administrative record for this
 rulemaking. The guidance provides for
 site-specific adjustment of criteria when
 (1) site water has different chemical
 characteristics of water than the water
 used in studies upon which the criteria
 are based, where the differences have
 been demonstrated to affect the
 biological availability and/or toxicity of
 a pollutant, or  (2) the sensitivity of local
 aquatic organisms (i.e. those that would
 live in the water absent human-induced
 pollution) differs significantly from the
 sensitivity of species tested in    <
 developing the criterion.
  Under the proposed Guidance, site-
 specific modifications may result in  *
either more or  less stringent acute and
 chronic aquatic life criteria, but may
result only in more stringent wildlife or
human health criteria. Accordingly, '
such modifications maybe available to
provide relief in situations involving
pollutants in intake waters where the
most stringent criterion for a pollutant

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Federal Register / Vol. 58, No. 72 /Friday, April 16, 1993 / Proposed Rules
of concern is an acute or chronic aquatic
Ufa criterion. The bases a State may use
for justifying such less stringent criteria
are discussed in section VELA of the
preamble,
  (5) Additional Examples of
Application of Existing Mechanisms.
Another example of the application of
existing mechanisms to address intake
water pollutants is a facility located on
a river that uses the river as both its
intake water source and receiving water
for the discharge. Contaminated
sediments amassed behind a dam on the
river are contributing to polynuclear
aromatic hydrocarbon (PAH)
concentrations that currently exceed the
State water quality criterion for PAHs.
The facility discharge includes PAHs
from both its process waste stream and
from the intake water.
  Under Option 1, the permitting
authority would apply proposed
procedures 5.A through 5.D of appendix
F to determine whether the discharge
has the reasonable potential to cause or
contribute to the exceedance of water
quality standards. If reasonable
potential is demonstrated, the
permitting authority would need to
determine an appropriate WQBEL for
PAHs based on the existing State water
quality standards for this discharge to a
non-attainment water. At least two
exceptions to a WQBEL based on
existing State criteria, however, maybe '
available for this scenario for discharges
to the Great Lakes System under the
proposed Guidance. First, if the
contaminated sediments could not be
remedied in the near term or would
causa more environmental damage to
correct than to leave hi place, the
facility could request a temporary
variance from the water qualify criterion
under proposed procedure 2 of
appendix F of the proposed Guidance.
This would result in the facility
receiving a less stringent or no WQBEL
for PAHs in the discharge.
  Second, if remediation of the
contaminated sediments was
technologically feasible, the appropriate
authority could develop a phased TMDL
under proposed procedure 3 of
appendix F of the proposed Guidance
based on available information,
professional judgment, and a margin of
safety to account for uncertainties.
Based on documentation of a required
implementation plan for remediation of
the contaminated sediments, the TMDL
could allot a larger wasteload allocation
to the facility to correspond to the
projected loading reductions to be
attained in a reasonable time period.
from sediment release. This would
result in either a less stringent or no
WQBEL for PAHs for the facility.
                      Additional examples of the use of
                      TMDLs, variances from standards, and
                      site-specific criteria modifications to
                      address pollutants from intake waters
                      exceeding water quality criteria are
                      contained in the discussion of those
                      procedures above..
                        iii. Proposed Guidance. Procedure 5.E
                      of appendix F of the proposed Guidance
                      provides a new procedure for
                      considering the presence of intake water
                      pollutants in water quality-based
                      permitting decisions in addition to the
                      available mechanisms described above.
                      The proposed Guidance would allow
                      the permitting authority to determine
                      that there is no reasonable potential for
                      the discharge of a particular intake
                      water pollutant to cause or contribute to
                      an excursion above a narrative or
                      numeric water quality criterion without
                      application of the procedures in
                      procedure 5. A through 5.D of appendix
                      F based on the permittee's
                      demonstration of specified conditions. If
                      these conditions are demonstrated, the
                      permitting authority would not be
                      required to include a WQBEL for the
                      pollutant in the facility's permit, If these
                      conditions are not satisfied, the
                      permitting authority would follow the
                      reasonable potential procedures in
                      procedure 5.A through 5.D of appendix
                      F to determine whether a WQBEL is
                      necessary for these discharges*
                        Proposed procedure 5.E of appendix F
                      was developed by a joint EPA and State
                      work group in 1992. Upon initial review
                      of the draft provision addressing intake
                      water pollutants developed by the Great
                      Lakes Technical Work Group (Option 4
                      in the preamble), EPA was concerned
                      that the provision may be inconsistent
                      with EPA's regulations and
                      interpretation of the CWA. These
                      concerns are expressed in the
                      discussion of Options 2, 3, and 4 below.
                      EPA formed a joint EPA and State work
                      group comprised of all ten EPA regional
                      offices, EPA's national office, and five
                      States to review the existing national
                      regulations to determine whether an
                      alternative option should be developed
                      to address intake water pollutants. This
                      work group identified and evaluated the
                      relevant technical factors and issues,
                      and drafted a procedure for determining
                      whether a discharge of intake water
                      pollutants would cause or contribute to
                      excursions above numeric or narrative
                      water quality criteria] Proposed
                      procedure 5.E of appendix F reflects the
                      efforts of that work group.
                        Proposed procedure 5.E. of appendix
                      F would provide a separate mechanism
                      for determining whether water quality-
                      based effluent limitations are necessary
                      for facilities that return unaltered intake
                      water pollutants to the source of the
intake water. EPA believes that the  .
return of intake water pollutants to the
waters of the United States after removal
and use of the water by industrial
facilities is an addition of pollutants
subject to regulation under section 402
of the CWA. Once the water is removed
for use in industrial operations, it has
lost its status as waters of the United
States and the discharge must be
governed by appropriate conditions in
an NPDES permit, including any
limitations necessary to meet applicable
water quality standards. (See, NWFv,
Consumers Power, 862 F.2d 580, 589
(6th Cir. 1988), distinguishing
impoundment and subsequent release of
water at hydroelectric facilities which
generally is not subject to section 402
regulation from "the diversion of waters
of the United States by industrial
operations for cooling purposes in
which the water loses its status as water
of the United States". See also, NWF, Id.
at 585, distinguishing impoundment
and subsequent release of water at
hydroelectric facilities from discharges
from seafood processors which remove
fish from the waters of the United States
for processing and discharge the
•remaining fish materials back to the
waters of the U.S.; Association of Pacific
Fisheries v. EPA, 615 F.2d 794 (9th Cir.
1980), affirming in part, EPA's national
effluent guideline regulating discharges
from seafood processing facilities;
Rybachek vrEPA, 904 F. 2d 1276, "1285
(9th Cir. 1990), holding that
resuspension or redepositing of
materials discharged in placer mining,
including materials  originally from the  .
streambed or adjoining banks, is the
addition of pollutants; United States v.
M.C.C. of Florida, Inc., 772 F. 2d 1501,
1506 (llth Cir. 1985), holding that
redepositing of vegetation and sediment
by propellers of tugboat onto adjacent
sea grass beds is the addition of
pollutants; Avoyelles Sportsmen's
League v. Marsh, 715 F. 2d 897, 923-   -
924 (5th Cir. 1983), holding that
redepositing of materials taken from
wetlands during land clearing activity is
the addition of pollutants.)
  Industrial representatives have
previously argued that the discharge of '
intake water pollutants is not an
addition of pollutants subject to
regulation under the CWA and,
therefore, that EPA should provide for
simple subtraction of all amounts of
intake pollutants from any technology-.
based effluent standards. (49 FR 38025-
38027, September 26,1984; See also,
Appalachian Power v. Train, 545 F.2d
1351,1377 (4th Cir. 1977); American
Iron and Steel Institute v. EPA, 526 F.2d
1027 (3rd Cir. 1975)). EPA rejected these

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                 Federal Register /Vol. 58, No.  72 /Friday, April 16, 1993 7 Propdsed Rules          20957
arguments in the preamble supporting
the 1984 net-gross regulation for
technology-based limitations reasoning
that such subtraction was inappropriate
because treatment systems typically
reduce pollutants to a given level
despite variations in influent-
concentrations. EPA asserted that to
grant an absolute credit under these
circumstances:         •        ,
  may give an unfair advantage to facilities
with measurable levels of pollutants in their
intake waters. Such facilities, by relying on
intake credits; could "comply" with effluent
limitations by utilizing a lower level of
treatment than their competitors on cleaner
streams—frequently a far lower level of
treatment than that designated by EPA as
BAT. (49 FR at 38026).        :   •    -
  Based on this reasoning, the final
regulation at 40 CFR 122.45(g) limited
the availability of credits for intake
water pollutants in calculating
technology-based limitations to the
specified conditions discussed in
subsection 5.E.2,e.ii.(A) above,
including that credit could only be
granted to •the extent necessary to meet
the applicable technology-based limit,
up to a maximum value equal to the
influent value. This requirement
generally precludes an,"absolute" credit
equal to the amount of pollutants in'the
intake water to the extent that these
pollutants can be removed through
proper operation and maintenance of
'the facility's control systems. EPA also
indicated-in the supporting preamble .
that such limitations on the availability
of net credits for calculating technology-
based limits comported with the Fourth
Circuit's decision in Appalachian
Power. Id., at 38027.. (See .also,
American Petroleum Institute v. EPA,
540 F.2d 1023 (10th Cir. 1976) and
Hooker Chemicals and Plastics v. Train,
537 F.2d 620 (2dCir. 1976) holding that
EPA's 1975 net-gross regulation was a
satisfactory answer to the  argument that
all technology-based effluent limitations
must be  expressed in net terms);
Although'challenges were also filed to
the 1984 regulation governing intake
credits for technology-based effluent
limitations, the United States Court of
Appeals for the District of Columbia
Circuit held that the rule was not ripe
for review until applied in a specific
permit. (NRDC v. EPA, 859 F.2d 156,
~ 204-205 (D.C. Cir. 1988).
   Reliance on these decisions by
industry representatives to support an
argument that EPA is required to allow
net credits in the calculation of
WQBELs is also misplaced because of -
the fundamental differences between
technology-based and water quality-
based effluent limitations'under the
 CWA. The authority for establishing the.
 existing intake regulation is derived
 generally from EPA's authority to
 establish technology-based effluent
 limits under sections 301, 304 and 306
 of the CWA. Under those sections, EPA
 must develop increasingly stringent
' effluent limitations based on the
 improving technological capabilities of
 treatment plants and economic
 achievability. In developing a
 mechanism for net credits in the
 calculation of technology-based
 limitations, EPA recognized that the
 presence of pollutants in intake water
 may prevent a facility in some   ,    ;
 circumstances from obtaining the  .
 statutorily mandated level of pollutant
 removal (e.g.BPT, BAT orBCT). Under
• those circumstances, the failure to allow
 adjustment of technology-based limits to
 reflect the pollutants would in effect
' impose a higher, level of control than
 statutorily required. As discussed
 further above, three Circuits have
 indicated'that the 1975 net credit
 regulation provides an adequate
 mechanism for addressing this problem
 in the calculation of technology-based
 limits.              ',       ;
   The authority to establish WQBELs, in
 contrast, is derived primarily from
 section 301(b)(l)(C) of the CWA. This
 section requires application of any more
 stringent limitation necessary to meet
 water quality standards after application
 of technology-based controls. Legislative
 history and judicial decisions have
 emphasized the fundamental differences
 and purposes of these two effluent
 limitations, [See, House Debate H.R.
 11896 (March 27,. 1972, Leg. Hist, at
* 375,379). See also, NRDC-v. EPA/859
 F.2d 156, 210 (D.C. Chvl988), holding
 that the CWA by virtue of .the important
 differences between technology-based
 and water quality-based standards, does
 not require EPA to provide for an upset
 defense to water quality-based permit
 limitations violations and remanding for"
 farther-proceedings}.
   EPA has gained extensive technical,.
 expertise in the two decades of NPDES
 permitting on the nature of pollutants
 and the effects of pollutants on waters
 on the United States. Based on this
 experience, EPA believes that
 determinations whether a discharge of
 intake water pollutants should be
 limited by a WQBEL and, if so, the
 scope of such limitations, must be   •
 determined after consideration of site-
 specific factors. These factors include
 consideration of the. applicable water
 quality  criteria, the quality of the
 receiving water in relation to these .
 criteria, additional pollutant loadings
 from other point and non-point sources,
 and evaluation of the facility's effluent.
 As discussed further below, the effect of
 the discharge4 of intake water pollutants
 may also vary substantially depending '
 on the location of the outfall in relation
 to the intake point, the time interval
 between intake and discharge of the
 water, alterations of the pollutant by the
 waste water treatment process, or
 synergistic or additive interactions  ;  .
 between the intake water and other .
 waste water pollutants.
  Additionally, EPA recognizes that
 impairment of water quality is  .       "
 determined not only by the magnitude
 of a pollutant, but also by its chemical
 nature in the environment. For example,
 100 jig71 of lead in a dissolved form in
 a river would likely cause a fish kill
 whereas it rnay not if the lead was
 tightly bound to suspended solids. With
 regards to pollutants in a facility's
 intake water, removal of 10 kg/day of
 non-bioavailable lead and replacement
 with 10 kg/day of bioavailable lead
 "would place an additional stress upon
 the receiving water.
 ; EPA believes that proposed procedure
 5.E of appendix F would provide a
 reasonable mechanism for evaluating   .
 the site-specific water quality effects
 from the discharge of intake water "
 pollutants. This procedure would allow
 permitting authorities to conclude that
 the return of unaltered intake water
 pollutants to the same body of water
 under identified ckcumstances does not
 have the reasonable potential to cause or
 contribute to an exceedance of water
 quality standards. Under this procedure,
 permitting authorities would not be
 required to apply the reasonable
  Eotential determination procedures, set
  Drth in procedure 5.A.  through 5.D of
 appendix F or to establish a WQBEL to
 control the discharge of an intake water
 pollutant       :
   Proposed procedure 5 ,E of appendix F
 would be applied on a pollutant-by-
 pollutant and outfall-by-outfall basis.
 For example, if a'facility takes in water
 containing lead and copper, procedure .
 5,E of appendix F would be available for
 the parameter lead, even if the facility
 contributes additional .copper to its
 discharge from a waste' stream or other
 source but does not contribute
 additional lead or alter the lead in the
, intake water. The determination
 whether a WQBEL would be necessary
 for copper under these  circumstances
 would be made based on the procedures
 in procedure 5.A through 5.D of
 appendix F.
   An example of the application of
 proposed procedure 5.E of appendix F
 is  fora steam electric power plant with
 once-through cooling water. In this
 example, a steam electric facilityis
 located downstream from a shoe
 manufacturer that discharges bis(2-

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Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 /Proposed Rules
ethylhexyl)phthalate. The steam electric
plant's intake water contains this
pollutant in a concentration that
exceeds the State water quality
criterion. The facility is able to
demonstrate that it does not contribute
an additional amount of this pollutant
from any source other than the intake
water; that the pollutant is not
concentrated at the edge of any mixing
zone or adversely altered in the process
of ones-through cooling prior to its
return to the same body of water; and
that the timing and location of the
effluent discharge does not cause
adverse impacts to occur that would not
occur if the pollutant was left instream.
This steam electric power plant would
qualify for a determination of no
reasonable potential for bis{2-
ethylhaxyDphthalate and would not
need a WQBEL for this pollutant.
  The permittee would oe eligible for
the reasonable potential procedure in
proposed procedure 5.E of appendix F
upon demonstration of five conditions.
First, the permittee would need to
demonstrate that it withdraws 100
percent of the intake water containing
the pollutant from the same body of
water into which the discharge is made.
Facilities with multiple sources of
intake water that are not commingled
but discharged from separate outfalls
would be efigible for this new procedure
for any outfall(s) where 100 percent of
the intake water is drawn from the same
body of water into which the discharge
is made. Facilities with co-mingled
intake waters would also be eligible if
they could demonstrate that the
pollutant of concern is not present in
intake water withdrawn from any other
body of water. If the discharge from an
outiall includes intake water containing
the pollutant of concern from sources
other than the receiving water, the
permitting authority would instead need
to make a determination of reasonable
potential based on the procedures in
procedures 5.A through 5.D of appendix

  EPA believes that restriction of
proposed procedure 5.E of appendix F
to dischargers to the same body of water
is appropriate to ensure consistency
with the structure and function of State
or Tribal water quality standards. Water
  Duality standards include State
  esignated uses and both narrative and
numeric criteria to ensure protection of
those uses foraspecified water body or
segment 40 CFR 131.3(i). The failure to
restrict this provision to discharges to
tha same body of water as the intake
source would allow the addition of
pollutants to a separate water body or
segment for the first time without
determining whether the new discharge
                      has the reasonable potential to cause or
                      contribute to an exceedance of
                      applicable water quality criteria based
                      on consideration of site-specific factors
                      including the condition of the receiving
                      water and contributions by other point
                      or non-point source discharges.
                        The restriction of proposed procedure
                      5.E of appendix F to the same body of
                      water is also consistent with the general
                      preclusion of credits for the discharge of
                      intake water pollutants to different
                      bodies of water when deriving
                      technology-based limitations under 40
                      CFR 122.45(g). As discussed further
                      above, this technology-based regulation
                      does not affect the discharger's
                      obligation to comply with any more
                      stringent limitations necessary to meet
                      the applicable water quality standards.
                      The regulation initially precluded credit
                      for intake water pollutants in deriving   '
                      technology-based limitations under all
                      circumstances unless the permittee
                      demonstrated that the intake water was
                      drawn from the same body of water into
                      which the discharge was made (45 FR
                      33451, section 122.63(h)(l) (May 19, ,
                      1980)). hi 1982, EPA proposed to delete
                      the same body of water restriction for
                      calculating technology-based
                      limitations. Industry commenters
                      supported this proposal arguing that
                      limitations to implement water quality
                      standards would be sufficient to protect
                      receiving waters. Commenters opposed
                      to this proposal argued that limitations
                      based on water quality standards alone
                      were inadequate because States had not
                      developed numeric water quality
                      criteria for many toxic pollutants (47 FR
                      52081). In the final rule, EPA agreed
                      with commenters that many States had
                      not yet developed specific criteria for
                      many toxic pollutants and, therefore,
                      "meeting water quality standards [was]
                      not alone a sufficient condition for this
                      waiver." Based on this concern, EPA
                      retained the general preclusion of credit
                      for intake water pollutants from sources
                      other than the receiving water in the
                      calculation of technology-based
                      limitations, but allowed the Director to
                      waive the same body of water
                      requirement for those limitations if no
                      environmental degradation would result
                      from the discharge. (49 FR 38026
                      (September 26,1984)).
                        EPA invites comment on all aspects of
                      this condition including whether the
                      final Guidance should define the phrase
                      "same body of water" or allow
                      permitting authorities discretion to
                      interpret this phrase on a case-by-case
                      basis. As discussed further above, the
                      purpose of restricting the application of
                      proposed procedure 5.E of appendix F
                      to dischargers to the same body of water
                      is to ensure adequate evaluation of the
 applicable water quality standards for
 the receiving water and consideration of
 the presence and amounts of other
 sources of the pollutant. One option
 under consideration is to define "same
 body of water" to include water.
 segments designated in State or Tribal
 water quality standards. This approach
 may result in inconsistent
 determinations between permitting
 agencies, however, particularly if there
 are large variations in the size of the
 designated individual water segments.
 EPA requests comment on this
 interpretation, including whether the
 final Guidance should specify a
 maximum limit to the size of the water
 segment if this element is selected in. the
 final Guidance.
   Another possible approach would be
 to allow permitting authorities the
 flexibility to interpret "same body of
 water" on a case-by-case basis. Factors
 that might be considered in this
 determination include whether the
 intake and outfall points are within the
 same water segment identified in State
 or Tribal water quality standards;
 whether the discharge is upstream or
 downstream from the intake point in
, flowing waters or in close proximity to
 the intake point in open lake waters;
. whether the intake pollutants would
 reach the outfall point within a
 reasonable time period in the absence of
 the removal and discharge back to the
 receiving.water; or whether the water
 chemistry (e.g. hardness and pH) are ,
 similar. Based on consideration of these
 factors, for example, a permitting
 authority might determine that a
 discharge is to the same body • of water
 where intake waters are taken from a
 relatively clean tributary of a relatively
 dirty body of water and discharged to
 the latter body in close proximity to
 where the tributary itself flows into the
 larger water body. EPA also requests
 comment on whether and, if so, under
 what circumstances the phrase "same  .
 body of water" should be interpreted to
 cover waters within the same
 watershed. For example, should the
 phrase "same body of water" encompass
 intake waters taken from a relatively
 clean water body and discharged into
 another water body containing the
 pollutant at higher concentrations
 where both water bodies are within the
 same watershed. EPA requests comment
 on the interpretation of "same body of
 water" and identification of any
 additional factors that the permitting -
 authority should evaluate in making this
 determination. EPA also requests
 comment on any alternative
 interpretations of this phrase.
   The second condition that the
 permittee would need to demonstrate to

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                 Federal Register / Vol. 58, No. 72 7 Friday,  April 16; 1993 7 Proposed Rules
                                                                     20959
 be eligible for procedure 5.E of       ,-,
 appendix F is that it does not contribute
 any additional mass of the specified
 intake water pollutant to its wastewater.
 Contributions include pollutants
 discharged to the process waste stream,
 corroded from the facility's pipes, or ':
 that are introduced from intake water
 sources other than the receiving water.
 The pollutant present in the discharge
 must be due solely to its presence in
 intake water from the receiving water
 body.
   EPA believes that this provision may
 he necessary to implement the statutory
 and regulatory requirements discussed
 above, and to further the goals of'the
 CWA and GLWQA to restore and
 maintain, the physical, chemical and
 biological integrity of the Nation's
 waters. In non-attained waters,
 restoration can only be achieved by
 removal or natural degradation of past
 pollutant loadings or by reduction hi  •
 future pollutant loadings. One
 reasonable step towards restoration of
. non-attained waters is to limit
 application of the proposed provisions .
 of procedure 5.E.l?b. of appendix F to
 "facilities that dp not contribute any
 additional mass of a pollutant from its,
 process waste stream.       ..' •   :
   The determination whether the
 discharge contributes an additional
 mass of the intake water pollutant
 should be based on monitoring data and
 information on the kinds of pollutants
 generated by the particular type of
 facility. Forexample, a facility would
 monitor the effluent flow.fvolume. per
 day) and effluent pollutant            :
 concentration, and then wouldrcalculate
 the mass of the pollutant'by multiplying
 the effluent flow by a conversion factor
 to transfer the, volume of water into
 mass of water, and then multiplying by
 .the concentration. If adequate data do
 not exist to make this determination, the
, permitting authority would apply the
 reasonable potential procedures in
 procedure 5,A through 5.D of appendix
 F. EPA invites comment on all aspects
 of this provision including the
 interpretation of "contribution of no
 additional amount," the data discussed
 for making,this determination, the use
 of statistical methods to make this
 determination, and whether minimum
 data requirements should be specified
• in the final regulation.
   The third condition the permittee
 would need to demonstrate to he
 eligible for proposed procedure 5.E of
' appendix Fis that it does not alter the
 identified intake water pollutant
 chemically or physically in a manner
 that would cause adverse water quality
 impacts to occur from the discharge that
 would not occur if the pollutant was  left
in-stream. Alterations may occur as long
as they do not cause adverse water
quality impacts. An example of the type
of alteration that would cause adverse
water quality impacts would be a    '
change in pH or temperature that affects
the structure of some pollutants
contained in non-contact cooling water
such that the toxic effects associated
with the effluent pollutants are
increased. Another example is where a
facility reduces the hardness of its
water, thereby increasing the toxicity of
a metal. However, simple removal of a  -
portion of the pollutants through
treatmentis not considered to be an
alteration that would cause adverse
water quality impacts. If the permittee
does not demonstrate to the satisfaction
of the permitting authority;that an
intake pollutant is not chemically or
physically altered in a manner that
would cause adverse water quality
impacts, the permitting authority must
determine the necessity for and level of
any appropriate WQBEL for the altered
pollutant according to the reasonable
potential procedures in procedures 5.A..
through 5.D of appendix F  after
consideration of the individual facts.
  EPA invites comment on all aspects of
this provision including the  _.
interpretation of "chemical and physical
alteration," the interpretation of
"adverse water quality impacts", the
specific environmental and pollutant
parameters needing evaluation for
making this determination, the use of
statistical methods to make this
determination, and whether minimum
data requirements should be specified
in the final regulation. For example,
should the final rule include a list of
environmental parameters such as
hardness, pH, and percent of the
pollutant in the dissolved state for
determining if the pollutant is altered.
Also, should the final rule specify the
maximum extent to which these
environmental parameters can change
without causing an adverse impact on
water quality.
  The fourth condition the permittee
would need to demonstrate to be
eligible for proposed procedure 5.E of  '
appendix F is that the pollutant is not
concentrated at the edge of any available
mixing zone after discharge from the  ,
facility. Attainment of water quality
standards generally is measured by
comparing the concentration of a
pollutant in an ambient water to the
water quality criterion which is
represented as a concentration. 'A non-
attained surface water is one where the
ambient concentration exceeds the
water quality criteria at the edge of a
mixing zone, if one is allowed by State
water quality standards, or at the end of
 a discharge, pipe, if the water quality
 pollutants at the edge of a mixing zone,
 especially in non-attained waters, may
 contribute to an, exceedance of water
 quality standards. Accordingly,
: proposed procedure 5.E of appendix F
 does not apply if there is an increase of
 the pollutant concentration at the edge
 .of a mixing zone as compared to the
 pollutant concentration in the intake   .:
 water; if no mixing zone is allowed by
 a State's water quality standards/the
 appropriate comparison is instead to the
 point of discharge. However, proposed
 procedure 5.E of appendix F would
 allow consideration of increased    :
 concentrations at the edge of any
 allowable mixing zone to accommodate
 water conservation in order to be
 consistent "with the proposed provisions
 in procedure 3 of appendix F that allow
 the continued use of mixing zones when
 water conservation measures would
 result in increased pollutant
 concentrations without increases in
 mass loadings. EPA invites comment on
 all aspects of this provision including
 the interpretation of "no concentration";
 whether a particular statistical
 methodology for measuring "no
 concentration" should be included in
 the final Guidance; and whether any
 provision in the final Guidance for
 intake water pollutants should allow
 consideration of a maximum increased
 concentration resulting from
 evaporation of cooling water.
   The fifth condition that the permittee
 would need to demonstrate to be
 eligible for proposed procedure 5.E of
 appendix F is that the timing and
 location of the effluent discharge does
 not cause adverse water quality impacts
 to occur from the simple pass-through of
 an intake water pollutant that would not
 occurif the pollutant were left in-
 stream. This, condition is designed to
 protect the water body from adverse
 impacts that could result if intake water
 were withdrawn, for example, at high
 flow conditions and discharged at low
 flow conditions of at high tide and
' discharged at low tide. EPA is aware
 that in some cases, differences due to
 timing of the discharge would not cause
 adverse water quality impacts, but
 believes that there are some cases where
 timing differences would cause adverse
 impacts that must be considered by the
 permitting authority.
   This condition also ensures that the
 location of the effluent discharge does
 not cause adverse water quality impacts
 to occur from the simple pass-through of
 an intake water pollutant that would not
 otherwise occur if the pollutant were
 left in-stream. An example where there

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Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
 may be an adverse water quality impact
 is where the intake pipe is located mid-
 stream, and the discharge is at the edge
 of the river bank where there is a critical
 habitat for a breeding population of fish.
 Another example is where the intake
 and outfall pipes are within the same
 body of water but several miles apart.
 The size of a water body segment
 designated by the State or Tribe may
 vary substantially. One large river
 segment, for example, may contain both
 portions that are in compliance with the
 designated use and water quality
 criteria, and portions that exceed
 criteria due to other dischargers. Under
 this circumstance, adverse impacts
 might occur if the intake  pipe was
 located in the non-attainment portion of
 the water body and the discharge was to
 the higher quality water further
 upstream. Accordingly, EPA believes
 that the permitting authority should
 evaluate the possibility of adverse
 impacts due to the location of the intake
 ana outfall pipes as a condition of
 granting relief under proposed
 procedure 5.E of appendix F. EPA
 invites comment on all aspects of this
 condition including whether the final
 regulation should specify a maximum
 distance between the intake and outfall
 or a maximum time interval between
 intake and discharge to be eligible for
 proposed procedure 5.E of appendix F.
   Proposed procedure  5.E. ol appendix
 F of part 132 identifies three conditions
 that the permitting authority must
 address in the NPDES permit or fact
 shoot if it determines under procedure
 5.E of appendix F that simple pass-
 through of an identified intake water,
 pollutant does not have the reasonable
 potential to cause or contribute to an
 exceedance of a water quality standard.
. First, the permitting authority must
 summarize the basis for the
 determination that there is no
 reasonable potential for the discharge of
 an identified intake water pollutant to
 causa or contribute to an  excursion
 above a narrative or numeric water
 quality criterion within a State water
 quality standard in the NPDES permit
 fact sheet or statement of basis. This
 would include evaluation of the
 permittee's demonstration of the five
 specified conditions discussed above.
 Documentation of all calculations and
 rationales is required by the existing
 NPDES regulations at 40 CFR 124.7.
   Second, proposed procedure 5.E of
 appendix F would require that the
 permit require all monitoring of the
 influent, effluent and ambient water
 necessary to determine that the
 conditions of procedure 5.E of appendix
 F are maintained during the permit
 term. Appropriate monitoring is
                      necessary, for example, to identify
                      changes in the mass or concentration of
                      an intake water pollutant or
                      introduction of a new source of the"
                      identified pollutant through the
                      facility's waste stream. The selection of
                      appropriate monitoring requirements
                      may vary based on consideration of the
                      individual circumstances at each facility
                      or within the receiving water.
                      Accordingly, EPA believes that
                      permitting authorities should identify,
                      the appropriate monitoring parameters
                      and frequencies to be included in the
                      NPDES permit based on their best
                      professional judgment. EPA invites
                      comment on this condition, including'
                      whether the final Guidance should
                      specify minimum monitoring
                      requirements for  all facilities, whether
                      permitting authorities should be
                      required to consider specified factors in
                      making this determination, or whether
                      other permit conditions would be
                      adequate in lieu of the proposed
                      monitoring provisions.
                        Third, proposed procedure 5.E of
                      appendix F would require that the
                      permit contain a reopener clause
                      authorizing the permitting authority to
                      modify or revoke and reissue the permit
                      if new information demonstrates
                      changes in any of the conditions of
                      procedure 5.E of appendix F. For
                      example, a facility may obtain a
                      different source of intake water or may
                      relocate its discharge into a different
                      receiving water. In these instances, new
                      amounts of pollutants are added to the
                      receiving water for the first time.
                      Similarly, monitoring may demonstrate
                      that an intake water pollutant is altered
                      by some change in the process waste
                      stream subsequent to permit issuance.
                      In either circumstance, the permitting
                      authority must evaluate whether a
                      WQBEL is necessary given the changed
                      circumstance, This condition is  '  . , ,
                      consistent with EPA's authority to
                      modify permits for new information
                      under 40 CFR 122.62(a)(2).
                        The last part of the proposed language
                      for proposed procedure 5.E of appendix
                      F addresses the relationship between
                      the option and any available waste load
                      allocation CWLA) or total maximum
                      daily load (TMDL). The proposed
                      provisions of procedure 5.E of appendix
                      F do not alter the permitting authority's
                      existing obligation to develop effluent
                      limits consistent with the assumptions
                      and requirements of any WLA or TMDL
                      that is developed by the State and
                      approved by EPA. (40 CFR'
                      122.44(dKlXvii).)
                        Similarly, application of procedure
                      5.E of appendix F, if finalized, would
                      not alter a State's obligation to identify
                      water quality-limited segments and
establish priorities for conducting
TMDLs for those waters under 40 CFR
130.7. The required evaluation of
existing and available water quality data
to make these determinations under
existing § 130.7(b)(5) would include
consideration of the information
submitted or generated to support
permit decisions under procedure 5.E of
appendix F.           .
  If the permitting authority cannot
.make the determination under
procedure 5.E of appendix F for any
reason,  then the permitting authority
would need to use the procedures under
procedure 5.A through 5.D of appendix
F for determining whether a discharge
has the  reasonable potential to cause or
contribute to an exceedance of water
quality  standards. Additionally,
ineligibility of a facility for the simple
pass-through determination of
procedure 5.E of appendix F would not
affect that facility's ability to request the
application of existing mechanisms for
consideration of intake water pollutants
in setting WQBELs (e.g., TMDL,
variance from water quality standards,
and modifications to designated uses
and criteria), described earlier in this
preamble and in other parts of this
Guidance.
  Finally, § 132.4(g) of today's proposed
Guidance provides that the Great Lake
States and Tribes may,-but are not
required to, apply any of the proposed
implementation procedures to the
pollutants and pollutant parameters
listed in Table S of the proposed rule at
40 CFR part 132. EPA believes that
application of proposed procedure 5.E
of appendix F to the pollutants ha Table
5, including generic pollutant
parameters (e.g., biochemical oxygen
demand (BOD) and total suspended
solids (TSS)), is technically feasible as
long as the proposed requirements of
procedure 5.E of appendix F are
demonstrated. EPA invites comment on
the application of the procedures, to all
pollutants, including identification of
pollutant characteristics that may
prevent demonstration of any of the
proposed requirements of procedure 5.E
of appendix F.
  iv. Alternative Options Considered.
EPA considered several options
described below that reflect
consideration of intake water pollutants
in establishing water quality-based
limits in addition to the proposed
approach. EPA requests comment onall
aspects  of these alternative options.
  (A)  Option 1. Option 1 is the current
National approach. EPA's existing
regulations do not provide a specific
mechanism to allow special credit or
consideration for pollutants present in a
facility's intake water when setting

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                 Federal Register / Vol. 58, No.  72 /Friday, April 16, .1993 / Proposed Rules
                                                                     20961
 WQBELs comparable to the intake credit
 provision for technology-based
 limitations at 40 CFR 122.45{g). If the
 permitting authority determines that a
 facility's discharge has the reasonable
 potential to cause or contribute to an
 exceedance of water quality standards;
 for any pollutant in the effluent, the
 NPDES permit mustinclude-an
 'appropriate WQBEL for that pollutant.
 EPA's existing regulations and guidance
 provide several mechanisms, however,  -
 that may be used to derive any WQBEL
 necessary to control discharges of
 pollutants to receiving waters that
 exceed water quality standards,
 including discharges containing .those
- poU^ants found in a discharger's intake
 water. These mechanisms include
 TMDLs, temporary variances from water
 quality standards, and changes; in the
 designated use of the water body or site-
 specific criteria modifications. Each of
 these mechanisms is described above.  ,
   Option 1 is the current EPA approach.
 This approach forwards the CWA
 section 101(a) goal of restoring the
 physical, chemical and biological
 integrity of the Nation's waters. It is also
 consistent with requirements in CWA
 section 3Ql(b)(l)(C) to include all
 limitations necessary in NPDES permits'
 to meet applicable State water quality
 standards. Option 1 also creates an
 incentive for regulatory authorities to
 develop TMDLs for non-attainment
• waters consistent with the requirements
 of CWA section 303(d). CWA section
 303(d) is designed to remedy  existing
 in-stream excursions above State Water
 quality standards and can be;used to
 fairly allocate the burden of reducing
 undesirable discharges among all
 sources, point and ndnpoint. Finally,
 Option 1 also allows use of temporary .
 variances in the Great Lakes System to
 the extent provided under National
 regulations and site-specific criteria
 .modifications to the extent described in
 section VIILA above.
   Some States have expressed concern
 with the use of these existing
 mechanisms/to address discharges of
 intake water pollutants to non-
 attainment waters. For example,
 approval of a variance or site-specific
 modification to a water quality criterion
 requires time for public participation
 and extends the duration of the permit
 issuance process. In addition,    .
 completion and approval of a TMDL
 may require additional time for
 evaluation of available data and could
 also extend the duration of the permit
 issuance process. Delays in permit
 issuance may impose additional costs •
 on facilities and permitting .authorities.
 Based on these concerns, the  Initiative
 Committees beh'eved that the proposed
 Great Lakes Guidance should present
 additional mechanisms to address
 intake water pollutants. •., *
   If EPA selects Option 1 in the final
 Guidance, no regulatory language would
 .be included to specifically address
 intake water pollutants. EPA believes
 that the existing mechanisms in, Option
 1 generally" pro vide sufficient
 procedures to address discharges to
 non-attainment waters, including
 discharges that contain intake water
 pollutants. As discussed  above,  7
 however, EPA is also soliciting
 comment on the adoption of proposed
 procedure 5.E of appendix F to     .
 specifically address the simple pass-
 through of unaltered intake water
 pollutants in addition to  continued
 application of these existing
 mechanisms,
   (B) Option 2. EPA is also considering
 whether to include a provision in the
 final rule that would allow the
 permitting authority to directly modify
 WQBELs to reflect a credit for intake
 water pollutants if the pollutants are- •   .•
 discharged to the same body of water as
 the intake water. A specified level of
 credit would be allowed under this
 approach even when the facility
 contributes an additional amount of the
 intake water pollutant from its process
 waste stream. However, credit would be
 precluded under Option 2 if the facility
 failed to demonstrate the remaining
 conditions specified in section.S.E.l.a,
 c, d, and e of proposed procedure 5.E of
 appendix F. For example, credit would
 be precluded under Option 2 similar to
 the proposed procedure 5.E of appendix
 F if the facility altered the identified
 intake water pollutant chemically or
 physically in a manner that would cause
 adverse water quality impacts to occur
 that would not have occurred if the  -  -
" pollutant was left uvstream;
 concentrated the intake water pollutant
 at the edge of the mixing zone (or end
 of pipe if a mixing zone is prohibited)
 as compared to the concentration in the
 . intake; withdrew intake water from a
 different body of water than the
 receiving water; or discharged at a time
 or location that may cause adverse
 effects to occur that would not occur if
 the pollutant was left'instream.
   Option 2a would allow a facility to
 discharge an effluent containing, at a
 maximum, the same mass of the
 pollutant withdrawn from the receiving
 water. If a facility is able  to remove any
 of the pollutant from the  intake water
 either before use at the facility or during
 waste water "treatment, the facility could
 offset this reduction by increasing the
 amount of the pollutant contributed by
 the process wastewater.       ••
  Option 2b would allow a facility to
discharge an effluent containing, at a
maximum, the same mass of the
pollutant in the intake water after   :
deduction of the amount removed by
the facility's treatment system prior to
use of the intake water in the facility.
This variation could result in a lower
discharge than allowed under option 2a.
If a facility removes any of the pollutant
originating in the intake water prior to
use at the facility, the facility would not
be able to offset this reduction. If a
facility is able to remove any of the
intake water pollutant during the
treatment process, however, it would be
able to increase the amount of the  ,
pollutant contributed in the process
wastewater. The following scenario
demonstrates application of options 2a
and 2b.                           .
  A facility is located on a river segment
with a lead concentration of 50 ug/L that
exceeds the State water quality criteria
of three ug/L. The facility withdraws
200,000,000 liters/day [53 million.
gallons/day) of water at a concentration,
of 50 ug/L; this corresponds to 10 kg/
day of lead in the intake water. The
facility treats its intake water prior to
use in the industrial process to remove
solids; this treatment removes 60
percent of the lead (six kg/day). The
facility's wastewater treatment system ^
removes 90 percent of lead from the
combination of the intake water and
process, waste water and "discharges the
remaining 10 percent.
  Option 2a would allow the facility to
discharge an effluent containing the
same mass of lead withdrawn from the
receiving water, i.e., 10 kg/day of lead.
Under this scenario, the facility could
contribute 96 kg/day of lead from its
process waste stream prior to treatment
and still be able to discharge the-same
mass of lead withdrawn from the river*
that is, 10 kg/day. This calculation is
expressed as {10 kg- 6 kg + 96 kg)(Q.10)
= 10 kg.
  Option 2b would allow the facility to
discharge an effluent containing the
same mass of lead withdrawn from the
receiving' water after deduction of the
amount removed by the facility prior to
use in the process stream, i.e., four kg/
day of lead. Under this seenario.'the
facility could contribute 36- kg/day of
lead from its process waste stream prior
to treatment. The facility would,
however, have the net environmental
benefit of removing six kg/day of lead
from the river even though it is
discharging pollutants that did not
originate from the receiving water. This
calculation is expressed as (10 kg—6 kg
+ 36 kg)(0.10) = 4 kg. The amount of
discharge allowed under Option 2b
would be greater for a facility that did;

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Federal Register / Vol. 58, No. 72  /  Friday, April 16, 1993 / Proposed Rules
 not have to pretreat its intake water to
 fulfill industrial process needs.
   In developing NPDES permit
 conditions under Option 2, a permitting
 authority would need to require
 sufficient information and monitoring of
 the intake water quality to determine
 tho appropriate WQJ3EL, including
 information on the restrictions
 identified as part of the proposed
 procedure 5.E of appendix F (e.g.,
 alteration of the pollutant, concentration
 at tho edge of the mixing zone, and time
 and location of the discharge). In
 addition, the permitting authority
 would need to require intake water
 monitoring during the permit term to
 determine if ambient concentrations
 ducreast, and include a specific
 reopancr provision In the permit to
 allow the permit modification to
 address any changed circumstances
 including changed concentrations in the
 intake water similar to the proposed
 requirements of the proposed procedure
 5£ of appendix F.
   Finally, neither option 2a or 2b would
 altar the authority of the regulatory or
 permitting authority to develop
 WQBBLs to account for the presence of
 intake water pollutants pursuant to a
 TMDL, temporary variance, or other
 allowable modifications to water quality
 standards pursuant to State and EPA
 regulations and this proposed Guidance,
 If a TMDL was developed, effluent
 limitations derived using Option 2
 would need to be adjusted so that the
 TMDL was not exceeded.
   Similarly, if EPA finalized a direct "
 mechanism to modify WOjBELs to
 reflect a credit for discharges containing
 intake water pollutants, application of
 this mechanism would not alter a State's
 obligation to identify water quality-
 limited segments and establish priorities
 for conducting TMDLs for those waters
 under 40 CFR 130.7. The required
 evaluation of existing and available
 water quality data to make these
 determinations under existing
 S 130.7(b)(5) would include
 consideration of the information
 submitted or generated to support these
 permit decisions.
  There are some advantages to this
 option. In particular, this approach
 %vould explicitly recognize that the
 waiving water is the original source  of
 some or even all of the pollutants
 discharged by the facility and provide a
 direct mechanism for adjusting the
NPDES effluent limitations to reflect
this contribution from the intake  water.
Option 2 does not require a facility to
remove constituents from the intake
water prior to discharging the water
back to the receiving water. The
mechanism provided by Option 2 would
                      not delay permit-issuance; in contrast,
                      the mechanisms available under EPA's
                      current regulations may delay permit
                      issuance as discussed in Option 1
                      above. This approach would at least
                      assure that current water column
                      concentrations that exceed either Tier I
                      criteria or Tier H values would not be ,
                      increased.
                        Further, EPA recognizes that in some
                      instances, Option 2 could result hi
                      reductions  in water column
                      concentrations which may improve the
                      overall water quality. These instances
                      could occur where a facility discharges
                      less than the mass of a pollutant that it
                      removed from its intake water. For
                      example, if a facility's intake water
                      contained 10 kg/day of lead, the current
                      treatment system removed 6 kg/day of
                      the intake pollutant, and the facility
                      offset 3 kg/day of the removed amount
                      with waste  stream pollutants (i.e., the
                      facility discharged 7 kg/day of lead), the
                      water quality may improve because of
                      the overall decrease in the mass of lead
                      in the water. Whether this discharge
                      would  result in water quality
                      improvements, however, would depend
                      on several factors including the
                      magnitude of the actual decrease in  the
                      pollutant concentration in the water
                      column, the lowered concentration in
                      the water column as compared to the  ,
                      Water quality criterion, and
                      consideration of the factors identified in
                      the proposed procedure 5.E of appendix
                      F (e.g.,  alteration of the pollutant,
                      concentration at the edge of any
                      applicable mixing "zone, and time and
                      location of the discharge).
                        EPA has several concerns, however,
                      about Options 2a and 2b. First, both
                      options 2a and 2b may be viewed as
                      inconsistent with the CWA and GLWQA
                      goals of restoring the physical, chemical
                      and biological integrity of the Nation's
                      waters. In non-attained waters,
                      restoration Can only be achieved by
                      removal or natural degradation of past
                      pollutant loadings or by reduction in
                      future pollutant loadings. Option 2a
                      does not produce any further reduction
                      in pollutant levels because the facility
                      may discharge waste stream pollutants
                      up to the total pollutant mass in the
                      intake water. Option 2b provides some
                      reduction because any pollutant mass
                      removed by a facility prior to use of the
                      intake water in the process system
                      cannot be returned to the surface water.
                      However, option 2b also allows any
                      further removal of pollutants by the
                      facility's wastewater treatment system to
                      be replaced by an increased discharge of
                      the pollutants from the process waste
                      stream.  Therefore, both options allow
                      offset of incidental removal of
 pollutants in whole or in part by
 contributions from facility discharges.
   Second, Option 2 may be interpreted
 as inconsistent with EPA's existing
 regulation of intake water pollutants for
 technology-based limitations. The
 NPDES regulation at 40 CFR
 122.45(g)(3) provides that the credit
 shall be granted "only to the  extent
 necessary to meet the applicable
 limitation or standard up to the influent
 value." This regulation does not provide
 full credit in the calculation of
 technology-based limitations for all
 pollutants contained in intake water,
 but instead precludes credit for
 pollutants removed by the existing or
 proposed intake and effluent  treatment
 systems.
   In the preamble to the final
 rulemaking promulgating 40 CFR
 122.45(g)(3), EPA discussed a comment
 that asserted that a simple subtraction of
 intake pollutant values from effluent
 values should be made when  setting
 technology-based permit limits and
 measuring compliance. EPA rejected
 this argument in part because:
  To grant a net/gross credit may give an
 unfair advantage to facilities with measurable
 levels of pollutants in their intake waters.
 Such facilities, by relying on intake credits,
 could "comply" with effluent limitations by
 utilizing a lower level of treatment than their
 competitors on cleaner streams *  * *.
 Furthermore, intake pollutants rarely pass
 through a facility and all its associated intake"
 and/or effluent treatment without some
 removal and/or complicated exchange of
 pollutants* * *. [T]he current regulation
 * * * does not allow a full credit, but only'
 a credit after consideration of removal in  ,
 intake and effluent treatment systems.
 Today's regulation replaces that complicated
 calculation with a more simple approach of
 granting credit as .needed to meet technology-
 based standards. (49 FR 38026 (September
 26,1984));

  Option 2 could be viewed as
 inconsistent with this position by
 allowing facilities to replace pollutants
 removed by treatment of the effluent
 (and, under option 2a, treatment of the
 influent as well) with additional
 pollutants from their process waste
 stream prior to discharge.
  Additionally, although adjustment of
technology-based limits is appropriate
to reflect intake water pollutants under
narrow circumstances, EPA believes
that a similar direct credit provision to
adjust WQBELS may not be appropriate
because of the fundamental differences,
between the two types of permit
limitations. The authority for
establishing the existing intake
regulation is derived from EPA's
authority to  establish technology-based
effluent limitations under sections 301,
304, and 306 of the CWA. Under those

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                 Federal Register /Vol. 58, No. 72  / Friday,  April 16, 1993 /Proposed Rules         20963
 sections, EPA must develop increasingly
 stringent effluent limitations based on
 the improving technological capabilities
 of treatment plants. In developing this
 mechanism to ad just technology-based
 effluent limitations, EPA recognized
 that the presence of pollutants in intake
 water may in some circumstances
 prevent a facility from obtaining the
 statutorily mandated level of pollutant
 removal (e.g., BPT, BAT, orBCT). Under
 those circumstances, the failure to allow
 adjustment of technology-based  •
 limitations to reflect the pollutants,
 would in effect impose a higher level of
 control than statutorily required. The
 authority to establish WQBELs, in
 contrast, is derived primarily from
 section 30lCb)(l)(C). This getStion
 requires application of "any more
 stringent limitation * * * necessary to
 meet water quality standards" after
 application'of technology-based
 controls.                    -       "
   Third, EPA is concerned that both
 options 2a and 2b would allow facilities
 to discharge pollutants originating from
 a process waste stream into a surface
 receiving water that currently exceeds
 an applicable water quality criterion. In
 the absence of a temporary variance
 from existing water quality standards,
 site-specific modifications to criteria or
 designated uses, or an appropriate
 wasteload allocation pursuant to a
 TMDL, EPA believes that the permitting
 authority should establish appropriate
 WQBELs to control discharge from
 process wastewaters if they have the
 reasonable potential to cause or s. ". •.
 contribute to an exceedance of existing
 State water quality standards.  -
   Fourth, Option 2 may create an
 economic incentive for facilities  to
 relocate to water bodies that are the
 most polluted, that is, have the highest
 ambient pollutant concentrations.
 Under both options 2a and 2b, the
 amount of a pollutant that a facility.
 could discharge is not based solely on
 attainment of water .quality standards; in
 these cases, the amount of the pollutant
 currently in the receiving water and the
 efficiency of the facility's treatment
 systems also affectthe effluent
 limitations. Wastewater treatment
 systems generally are able to remove a
 set percentage of a pollutant mass in the
 influent to the wastewater treatment
 system. (There are exceptions to  this
 general concept but these occur when
 the influent concentrations are greatly
 dissimilar, e.g., one influent
 concentration is near the analytical
 method detection limit and the other is
 greater by a factor of 10 or more.) As a
 result, the higher the ambient pollutant
 concentration, the greater the pollutant
. mass that alacility could discharge."
   In the previous example used to
 describe Option 2a, the facility removed
 10 kg/day of lead from the-river and was
 able to contribute 96 kg/day from its
 process wastewater in order to achieve
 a discharge requirement of 10 kg/day. If
 the concentration in the river at the
 intake was double (160 ug/i), Option 2a
 would allow the facility.to discharge
 more of the pollutant (20 kg/day of
 lead). Under this condition of a higher
 concentration in the intake water, the
 facility could contribute 192 kg/day of
 lead from its process waste stream, prior
 to treatment. This calculation is
 expressed as (20 kg—12 kgf192
 kg)(0.10)=20 kg. Therefore, the higher
.the pollutant concentration in the
 receiving water, the more of that
 pollutant that the facility can contribute
 from its process wastewater under
 Option 2a before it is treated and still
 discharge the same mass of lead
 withdrawn from the river.
   The same principle holds for Option
 2b', Under the example used to describe
 Option 2b, the facility is able to
 discharge 4 kg/day of lead which '>
 represents the mass removed from the
 river by the intake after discounting the
 amount removed by the facility prior to
 use,in the process. The facility was able
 to contribute 36 kg/day from its process
 wastewater in order to achieve a    ,
 discharge requirement of 4 kg/day. If the
 concentration in the river at the intake -.
 was double (100 Hg/L), Option 2b would
 allow the facility to discharge more of
 the pollutant (8 kg/day of lead). Under
 this condition of a higher concentration
 in the intake water.'the facility could
 contribute 72 kg/day of lead from its
 process waste stream prior to treatment.
 This calculation is expressed as (20
 kg -12 kg + 72 kgKO.10) = 8 kg.
 Therefore, the higher the pollutant
 concentration in the receiving water, the
 more of that pollutant that the facility
 can contribute from its process
 wastewater under Option 2b before it is
 treated and still discharge the same
 mass of lead withdrawn from the river
 less the amount removed by the facility
 prior to use in the process*
   EPA is concerned that any incentive
 for facilities to relocate to surface waters
 that are more polluted may be
 interpreted as inconsistent with the
 shared goal of the CWA and the
 GLWQA to restore the physical,
 chemical and biological integrity of the
 Nation's waters. In non-attained surface
 waters, restoration can only be achieved
 by removal or natural degradation of
 past pollutant loadings or reduction in
 future pollutant loadings. Creating an
 incentive for facilities to relocate to non-
 attained waters may delay or frustrate
 achievement of this goal.             ,
   EPA requests comment on all aspects
 of Option 2, including whether any
. consideration of this approach should
 be limited to intake water pollutant
 discharges that result in a minimum
 specified decrease in the total mass of
 the pollutant in the receiving water and/
 or improvement in water quality. EPA
 also requests comment on the       '
 conditions that would be necessary to:
 demonstrate improvement in water
 quality under these circumstances; any
 appropriate methods for determining
 decreases io. total pollutant mass; and  .
 whether a specified minimum level of
 decrease should be required for this
 option. For example, should this
 approach, if adopted, specify a
 minimum percent reduction in the
 ambient concentration of the pollutant
 or require that the ambient
 concentration after discharge be within
 a certain percentage of the water quality
 criterion.
   Finally, EPA requests comment on
 whether application of a mechanism to
 modify WQBELs to directly reflect
 credit for intake water pollutants, if
 adopted, should be limited to one
 permit term (a maximum of five years)
 absent State completion of a TMDL for
 the water quality-impaired receiving
 water. As discussed further above,
 existing § 130.7 currently requires States
 to identify water quality-limited
 segments and establish priorities for
 conducting TMDLs for those -waters. A
 time limitation on the availability of ,
 intake credits un^er Option 2 may
 facilitate restoration of water quality-
 limited segments by encouraging timely
 development of appropriate wasteload
 allocations .and load allocations for all
 discharges into these impaired waters.
 EPA requests comment on this
 limitation, including the reasonableness
 of a restriction to one permit term, and
 on all other aspects of Option 2.
   (C) Option 3. EPA considered another
 option that would allow the permitting
 authority to directly modify WQBELs to
 reflect a credit for intake water
 pollutants regardless of where the intake
 water source is located. Option 3 is
 similar to Option 2 in all'aspects except
 that Option 3 extends the concept of
 intake credits for WQBELS to situations
 where all or a portion of the intake
.. water source is a different body of water
 than the receiving water. EPA
 considered three variations to this  r
 option.
   Option 3a would allow a facility to    ,
 discharge an effluent containing, at'a
 maximum, the same mass of the, •    ;
 pollutant that the facility receives from
 any water source including sources
 other than the receiving water. If a ;    .
 facility is able to remove any of the

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20964
Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993 /Proposed Rules
pollutant from the intake water, the
facility could offset this reduction by
increasing the amount of the pollutant
contributed by the process wastewater.
  Option 3b woula similarly allow a
facility to discharge an effluent
containing, at a maximum, the same
mass of the pollutant contained in
intake water from any source after
deduction of the amount removed by
tha facility's treatment system prior to
uso of the intake water in the facility. If
a facility is able to remove any of the
pollutant originating in any intake water
through wastewater treatment, the
facility could similarly offset this
reduction by increasing the amount of
tha pollutant contributed by the process
wastewater.
  Option 3c would allow a facility to
discharge an effluent containing, at a
maximum, the same concentration of
the pollutant that Is present in the
raceiving water. If a facility is able to
romova any of the pollutant from the
intake water, the facility will be able to
offset this reduction by increasing the
amount of the pollutant contributed by
the process wastewater. The following
scenario demonstrates application of
options 3a, 3b, and 3c.
  A facility is located on a river segment
with a lead concentration of 50 ug/L that
exceflds the State water quality criteria
of three Ug/L. The facility obtains
200,000,000 liters/day (53 million „
gallons/day) of water at a  concentration
of 10 ug/L from a nearby lake; this
corresponds to two kg/day of lead in the
intake water. The facility treats its
intake water prior to use in the
industrial process to remove solids; this
treatment removes 60% of the lead (1.2
kg/day). The facility's wastewater
treatment system removes 90 percent of
lead from the combination of the intake
water and process wastewater and
thereby discharges the remaining 10
percent.
  Option 3a would allow the facility to
discharge an effluent to the river which
contains the same mass of lead in the
water removed from the lake, i.e., two
kg/day of lead from the lake. Under this
scenario, the facility could contribute
19.2 kg/day of lead from its process
waste stream prior to treatment.  This
calculation is expressed as (2 kg-1.2
kg*19.2 kg)(0.10]=2 kg. This discharge
also would increase the lead mass in the
river by two kg/day.
  Option 3b would allow the facility to
discharge an effluent to the river which
contains the same mass of lead
withdrawn from the lake after deduction
of the amount removed by the facility
prior to use in the process stream, i.e.,
0.8 kg/day of lead. Under this scenario,
the facility could therefore contribute
                      7.2 kg/day of lead from its process waste
                      stream prior to treatment. This
                      calculation is expressed as (2 kg—,1.2
                      kg+7.2 kg)(0.10)=0.8 kg. This also would
                      increase the mass in the river by 0,8 kg/
                      day.
                        Option 3c would allow the facility to
                      discharge an effluent to the river which
                      contains the same concentration of lead
                      as in the receiving water. In the
                      example, the river has a concentration
                      of 50 ug/1. The facility would be able to
                      discharge 10 kg/day of lead to the river
                      which represents a discharge of
                      200,000,000 I/day at a concentration of
                      50 ug/1. Under this scenario, the facility
                      could contribute 99.2 kg/day of lead
                      from its process waste stream prior to
                      treatment. This calculation is expressed
                      as (2 kg-1.2 kg+99.2 kg)(0.10)=10 kg.
                      This discharge also would increase the
                      lead mass in the river by 10 kg/day.
                        In developing NPDES permit
                      conditions under Option 3, as with
                      Option 2, a permitting authority would
                      need to require sufficient monitoring of
                      the intake water quality to determine
                      eligibility for and compliance with
                      appropriate WQBELs and incorporate a
                      specific reopener provision in the
                      permit to allow permit modification to
                      address any changes in the ambient
                      concentration of the pollutant. Also
                      consistent with Option 2, Options 3a,
                      3b, and 3c would not alter the authority
                      of the regulatory or permitting authority
                      to develop WQBELs to account for the
                      presence of intake water pollutants
                      pursuant to a TMDL, temporary
                      variance, or other allowable        ,. ' •
                      modifications to water quality standards
                      pursuant to State and EPA regulations
                      and this proposed Guidance, If a TMDL
                      was developed, effluent limitations
                      derived using Option 3a, 3b, or 3c
                      would need to be adjusted so that the  •.
                      TMDL was not exceeded.
                        Option 3 has the same advantages as
                      identified above for Option 2. In
                      particular, the option would recognize
                      that the intake water is the original
                      source of some or all of the pollutants
                      discharged by the facility and provides
                      a direct mechanism for adjusting the
                      facility permit limits to reflect this,
                      contribution. For example, where a
                      facility receives its intake water from a
                      commercial or public water supplier,
                      this approach allows the facility to
                      discharge into the receiving water the
                      same amount of pollutants, either
                      treated or untreated, as present in the
                      intake water.
                        EPA recognizes that in some instances
                      Option 3 could result in reductions in
                      water column concentrations which
                      may improve the overall water quality.
                      These instances could occur if a facility
                      discharges less than the concentration of
a pollutant that is present in the
receiving water. For example, if a
facility discharged an effluent
containing 10 ug/1 of lead into a river
with a concentration of 50 ug/1, the
discharge may dilute the ambient
concentration and therefore lower the
river concentration. Although the
ambient concentration could be lower,
however, the mass of a pollutant would
increase by the transfer of pollutants to
a different body of water. Whether this
discharge would result in overall water
quality improvements would depend on
several factors including, the magnitude
of the actual decrease in the pollutant
concentration in the water column, the
lowered concentration in the water
column as compared to the water
quality criterion, consideration of the
factors identified under the proposed
procedure 5.E of appendix F (e.g.,
alteration of the pollutant, concentration
at the edge of any applicable mixing
zone, and time and location of the
discharge), the impacts of additional
mass on pollutant levels in sediment
and fish tissue, and the transfer of the
additional mass through volatilization "•
and sedimentation into nonpoint
sources of atmospheric deposition and
sediment resuspension. In particular,
the additional mass of a persistent
pollutant may offset some of the
environmental benefits  of lowering
water concentrations because the
additional mass, if cycled through
sediments by deposition and
resuspension, could delay the date of
achieving the water quality criterion.
  EPA has several concerns, however,
with options 3a, 3b or 3c of the
proposed Guidance. In addition to the
reasons discussed for options 2a and 2b,
options 3a, 3b and 3c would allow '
facilities to increase the mass of
pollutants in a surface receiving water
that currently exceeds an applicable
water quality criterion. Under Option 3,
the pollutants in the intake water
originated from outside the water body
and would otherwise not be introduced
into the receiving water except for the
discharge of the facility. The approach
of Option 3 therefore may be interpreted
as inconsistent with the CWA and
GLWQA goals of restoring the physical,
chemical and biological integrity of the
Nation's waters. In non-attained waters,
restoration can only be achieved by
removal or natural degradation of jpast
pollutant loadings or by reduction in
future pollutant loadings. Options 3a, 3b
and 3c increase the pollutant levels by
increasing the pollutant mass in the
receiving water.
  Option 3 is also inconsistent with the
structure and function of State water
quality standards under the CWA. Water

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                 Federal  Register / Vol.  58,  No. 72 7 Friday, April 16, 1993 / Proposed Rules
                                                                        20965
  [uality standards include Stata ,
  lesignated uses and criteria to ensure
 protection of those uses for a specified
 water body or water segment, dption 3
 would allow facilities to introduce
 pollutants from a different body of water
 for the first time without determining
 whether the new discharge has the .
 reasonable potential to cause or
 contribute to an exceedance. of  .
 applicable water quality criteria for the
 receiving water.  '
   EPA requests comment on all aspects
 of Option 3, including whether any
 consideration of this approach should
 be limited to-intake water pollutant
 discharges that result in a specified
 minimum decrease in the concentration
 of the pollutant in the receiving water
 and/or improvement in water quality..
 EPA also requests comment on the
 conditions that would be necessary to
 demonstrate improvement in water
 quality under these circumstances; any
 appropriate methods for restricting
' increases in total pollutant mass; and .
 whether a specified maximum level of
 mass increase should be required for
 this option. EPA also requests comment
 on whether this option should only be
 considered for .those pollutants that do
 not bioconcentrate in aquatic organism
 tissue or accumulate in sediments. For
 example, should this approach if
'adopted specify a minimum percent
 reduction in the ambient Sjpncijntration
 of the pollutant or require that the
 ambient concentration after discharge be
 within a certain percentage of the water
 quality criterion or'require  a maximum
 allowable increase in title mass loading
 to the water.                  •
   (D) Option 4. This option is;the initial
 procedure developed by the Gifeat Lakes
 Technical Work Group during the
 Initiative process. Option 4 is presented
 below in its entirety from the December
 6,1991 version. This version was
 originally included in the Great Lakes
. Implementation Guidance as. Part, ll.B t
 (now procedure 3 of appendix F to part
,132) and is listed below;   .
•••-••>.•.•     • :,'   '• ' ' '•• ^ .' ••
   B. Background concentrations greater thpn
 the water quality standard or criteria. This
• section includes provisions for determining ,
 effluent limitations when the. background .
 concentration of a pollutant in a receiving
 water exceeds an applicable water quality
 standard or criterion. In applying these
, provisions.'hdwever, all effluent limitations
 .derived by this provision must not cause any
 applicable TMDL to be exceeded. In such  .
 cases, the effluent limitations, shall be
 adjusted so that the TMDL is not exceeded.
   (1) Point sources using water from a source
 other than the water body to which the
'effluent is discharged.
   (a) Whenever the representative
 background concentration for a toxic
 substance in- the receiving.: water is '
 determined to be greater than any applicable
 water quality standard or criterion for that.
 substance and the source of at least 90
 percent of the Wastewater is from
 groundwater or a public drinking water
 supply system, the concentration value of the
 WLA for that substance, shall be equal to the
 lowest applicable water quality standard or
 .criterion except as provided by part B,(l)(b).
 POTWs which discharge to the same surface
 water from which the water supply is
 withdrawn shall be subject to .part B(2). of
 this procedure.
   (b) The concentration value of the WLA
 "may be established at a concentration greater
 than the water quality standard or criterion
 for the substance in the receiving water as '
 required by part B.(l)(a) in a range up to, but
• not greater than the representative
 concentration of the substance hi the •
 receiving water. The WLA shall only be
 increased above the standard or criterion if
 it is demonstrated to the permitting agency
 that the concentration of the substance in the
 groundwater or public, drinking water-supply
 system at the point of intake exceeds that
 applicable standard or criterion for that
 substance and that reasonable, practical or
 otherwise required methods are implemented
• to minimize the addition of the toxic
 substance to the wastewater. This part shall
 not apply where groundwater is withdrawn
 from a location of contaminated
 groundwater.           .              '
   (2) Point sourcesusing water from the
 same water body to which the effluent is
 discharged.
   fa) Whenever the representative  :
 background concentration bt a toxic
 substance in the receiving water is
 determined to be greater than any applicable
 water quality standard or criterion for that
 substance and the source of more than 10
 percent of the wastewater for any discharger
 is from the same receiving water, the
 concentration value of the WLA for that
 substance shall equal  the representative
 background of that substance in the receiving
 water. In addition, or as an alternative, the '
 mass value of the WLA may be established
 at a value which requires that there be no net
 addition of the. toxic substance in the
 wastewater as compared to;the intake or
 source water.        ..._..
  . Option 4 represents a combination of
 Options 2a and 3c. The procedure
 provides mechanisms for reflecting a
 credit for pollutants in a facility's intake
 water under two circumstances.
   First, when at least 90 percent of the
 intake water source is from ground
 water or public drinking water supply,
 Option 4 would allow a facility to .
 discharge an effluent containing a
 concentration of a pollutant ranging
 from, at the low end, the water quality
 criterion, to, at the high end, the _
 .concentration of the pollutant in the  '•
 receiving water. The permitting        ,
 authority would use its professional
 judgment and Would consider the
 reasonable, practical, and required
 methods to minimize addition of toxics,
 in deciding where to establish the
  effluent limitation within the range of
  possible effluent limitations;    .
  .  Second, when a minimum of 10
  percent of wastewater is from the same
  water body into which the effluent is
  discharged, Option 4 would allow a
  facility to discharge an effluent at a
  concentration equal to the receiving
  water or containing a mass of a
  pollutant equal to the mass the facility
  receives from the water body. This  .
.  option would apply even if 90 percent
  of the wastewater is from the process
  waste stream or from waters other than
  the receiving stream.    -       .
    The same scenarios used to illustrate
  options 2a and 3c and permitting     >   :
  considerations can also be used to
  illustrate application of this option; EPA
  has concerns about Option 4 in the
  proposed Guidance  similar to those   , •
  expressed above for options 2a and'Sc.
  In addition, the requirement that
  effluent limitations must be consistent  ,
  with the provisions  of a TMDL is not
  sufficient to resolve the deficiencies of
  this option. There is no guarantee that
  a TMDL will be developed for any
  particular water body that accounts for
  all significant point  and nonpoint
  sources and the option alone does not
,  ensure  attainment of water quality
  standards in the receiving waters.
    EPA is also concerned that Option 4
  would not prevent facilities-from
  discharging pollutants that, although ,
.  equal in mass to that in the intake waterV
  may be biologically  more active and
  thereby cause a greater adverse impact
  on the receiving water than leaving the  :
  pollutants in place. As previously
  discussed, EPA recognizes that        ;
  impairment of water quality is
  determined by both the magnitude of a •.-
  pollutant and.its chemical affects on the
  environment. This led to the proposal of
  the provisions of proposed procedure
  5 .E of appendix F that a facility not
  contribute additional mass of the
  pollutant, or alter an intake water
  pollutant chemically or physically, or '
  discharge at a time or location that may
  cause adverse impacts to occur which  ;
  would not occur absent removal akd
  redischarge of the pollutants.       ,
    Finally, EPA recognizes that in some ;
  instances Option 4 could result in-
  reductions in water column
  concentrations which.may improve the
  overall water quality in circumstances
  and for reasons identical to those     :';-'
  discussed previously for Option 3. EPA
  requests comment on all* aspects of
  Option 4, including the issues identified
  for comment under Options 2 and 3.
    v. Request for Public Comment. EPA.
  invites public comment on all aspects of
 .the proposed Guidance and all other, •.-..•.•
  options: for procedure 5,.Eof appendix.F

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Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
for determining whether a discharge has
the reasonable potential to cause or
contribute to an excursion of water
quality standards, including the specific
issues and alternatives for public
comment identified througnout this
preamble. Additionally, EPA requests
public comment on any additional
options for consideration, including
new options based on consideration or
combination of factors discussed in the
preamble.
  EPA intends to include a provision in
the final Guidance specifying the extent
to which permitting authorities in the
Great Lakes may consider the presence
of intake water pollutants when
establishing water quality based effluunt
limitations. EPA requests comment on
all aspects of this subject, including all
issues raised in the preamble discussion
above, and any suggested alternative
requirements or combinations of
requirements to address the subject and
issues in the final rule.
  In addition, EPA invites comment on
whether any finalized requirements
addressing intake water pollutants
should bo restricted only to those
pollutants that, due to nonpoint source
contributions such as atmospheric
opposition, are present throughout the
Groat Lakes Basin at about the same
concentration which already exceeds
toe water quality criterion. The presence
of these pollutants was a primary
impetus for Hie Steering Committee's
Initial development of draft provisions
addressing intake water pollutants.
Reductions in ambient concentrations of
somo of these pollutants may be very
difficult to currently achieve. For
example, the current ambient
concentrations of PCBs may reflect moro
tho contributions of nonpoint loadings
from atmospheric deposition and
contaminated sediments than from
point sources. Removal of all sediments
containing PCBs from the Basin may not
bo practical duo to the amount of
sediments and the availability of
disposal or treatment of the sediments.
Likewise, control of all contributions of
PCBs into the air may not be
immediately possible, particularly if the
introduction of PCBs into the air occurs
outside the United States. Pollutants of
this type, due to their wide-spread
presence in the Basin, may represent the
greatest application of the Options for
addressing intake water pollutants.
  f. Other Applicable Conditions.
Procedure 5.F.1 of appendix F of the
proposed Guidance states that effluent
limitations are required to comply with
other State, Tribal and Federal laws and
regulations, including technology-based
requirements and antidegradation
policies. Section 301(b) of the Clean
                      Water Act requires NPDES permits to
                      contain effluent limitations to meet both
                      the technology and water quality-based
                      requirements of the CWA. The proposed
                      Guidance addresses implementation
                      procedures for establishing appropriate
                      water quality-based controls and does
                      not provide specific direction to permit
                      authorities regarding implementation of
                      State, Tribal or Federal technology-
                      based requirements. In addition, State or
                      Tribal law or regulations may require
                      NPDES permits to include WQBELs
                      even if the reasonable potential
                      determination procedures in procedures
                      5.B.1, 5.B.2, and 5.C of appendix F
                      would not require a WQBEL to be
                      included in the permit. In these cases,
                      the more stringent State or Tribal
                      requirements may be applied pursuant
                      to section 510 of the Clean Water Act.
                        Additionally, implementation of the
                      antidegradation requirements of
                      appendix E of the proposed Guidance
                      may require establishment of numeric
                      effluent limitations in a permit in order
                      tn assure that further degradation of a
                      water body by the point source will not
                      occur, These limitations would be set,
                      not to ensure that a facility will achieve
                      a numeric water quality criterion, but
                      rather to limit increases in a facility's
                      effluent discharge under specified
                      circumstances consistent with the
                      antidegradation policy.
                        Also, procedure 5.F.2 of appendix F
                      provides that when the permitting
                      authority is determining the necessity
                      for WQBELs, information from
                      chemical-specific, whole effluent
                      loxicity and biological assessments must
                      be considered independently. EPA has
                      established a "Policy on the Use of
                      Biological Assessments and Criteria in
                      the Water Quality Program" (June 1991),
                      which is available in die administrative
                      record for this rulemaking. The policy
                      recommends that permitting authorities
                      fully integrate chemical specific, whole
                      effluent toxicity and bioassessment
                      approaches into their water quality-
                      based toxic control programs. This
                      policy is also discussed in the TSD at p.
                      22, Because each water quality
                      assessment method has unique as well
                      as overlapping attributes, sensitivities,
                      and program applications, EPA believes
                      that no single approach for detecting
                      impacts should be considered uniformly
                      superior to any other approach. For
                      example, the inability to detect
                      receiving water impacts using a
                      biosurvey alone is insufficient evidence
                      to waive or relax an effluent limitation,
                      established using either of the other
                      methods. The most protective results
                      from each assessment conducted should
                      be used in the effluent characterization
                      process. Similarly, the results of one
 assessment technique should not be
 used to contradict or overrule, the results
 of the other(s).         '        •
   Proposed procedure 5.F-2 of appendix
 F is consistent with the National policy
 of independent applicability. EPA
 invites comment on all aspects of this
 provision including whether the policy
. of independent applicability should
 apply to determinations of appropriate
 effluent limitations based on either Tier
 I criteria or Tier II values in the Great
 Lakes System.
   Finally, procedure 5.F.3 of appendix
 F requires that permitting authorities
 also establish a WQBEL if the discharger
 has a pollutant in its effluent at
 detectable levels and fish tissue from
 the water body also contains the
 pollutant at levels that exceed the tissue
 basis of the water quality criteria. This
 provision applies to instances where
 proposed procedures 5.B and 5.C of
 appendix F do not project the
 reasonable potential of a discharger to .
 cause or contribute to an excursion
 above a Tier I criterion or Tier II value
 but tissue data from ambient fish
 sampling demonstrates an excursion.
 These instances occur when ambient
 water concentration monitoring either
 does not include the pollutant of
 concern or else the pollutant is present
 in ambient waters at a level below the
 ability of analytical chemical methods
 to detect or quantify. Nevertheless,  the
 presence of the pollutant in fish tissue
 at levels that exceed the tissue basis of
 the Tier I criterion or Tier n value
 demonstrates that the criterion or value
 is not met. Under NPDES regulations at
 40 CFR 122.44(d)(l){i), a WQBEL is
 required for that pollutant or pollutant
 parameter whenever there is
 information that demonstrates that the
 discharge, of a pollutant causes or
 contributes to such an excursion. The
 provisions of proposed procedure 5.F.3
 of appendix F implements the
 requirements of 40 CFR 122.44(d)(l)(i)
 with respect to ambient fish tissue data.
   In using fish tissue data, care should
 be exercised by the permitting authority
 .in determining what fish tissue data are
 representative of ambient conditions.
 For example,  a fish must be expected to
 have lived within the geographic area of
 concern sufficiently long .enough to
 have reached or approached steady state
 conditions in terms of bioaccumulation.
 Steady state occurs when the level  of
 pollutant uptake is approximately equal
 to the level of pollutant elimination
 from the fish. EPA guidance on these
 considerations is provided in
 "Assessing Human Health Risks from
 Chemically Contaminated Fish and
 Shellfish: A Guidance Manual" (USEPA
 September 1989, EPA-503/8-89-002),

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                 Federal Register / Vol. 58, No.  72 /Friday, April  16,  1993 7  Proposed Rules
                                                                     20967
 which is available in the administrative
 record for this rulemaking.
   The proposed procedure 5.F.3 of
 appendix F compares the geometric
 mean of tissue samples collected from
 ambient fish to the tissue basis of the
 Tier I criterion and Tier II values for
 human health and wildlife protection.
 The tissue basis is equal to the
 bioaccumulation factor that was used to
 calculate the Tier I criterion'or Tier IE "
 value multiplied by the Tier I criterion
 :or Tier-H value. The tissue basis for the
 same pollutant may differ for human
 health arid wildlife criteria arid values;
 if any tissue basis is exceeded,  ,
 reasonable potential exists with respect
 to facilities discharging detectable levels
 of the pollutant.      .; '
   The mean of the ambient data is used
 in the comparison to be/consistent with
 the assumptions of the criteria, that is,
 wildlife-and human consumers of fish
 eat an assemblage of fish. A mean best
 reflects this assemblage. The geometric
 mean is used as the most representative
 way to  reflect the average of
 environmental samples. EPA invites
 specific comment on what characteristic
 of. ambient data (mean, average,
 maximum,  etc.) should be used for .
 comparison to the tissue basis of Tier I
. criteria or Tier II values. EPA also
. invites comment on what type of mean,
 geometric, arithmetic, harmonic, or  ;
 others, should.be used for this  •__•
 comparison.
   The proposed procedure 5.F.3 of    :
 appendix F also recognizes that there
 may be differences in tissue
 concentrations between fish samples
 collected from a specific water body.
 The reasons for this include differences
 in lipid content between fish, the ages
' offish, arid the actual exposure of
 individual fish. The use of a geometric
 mean in the comparison serves to
 overcome some of the inherent
 variability because the mean reduces the
 effect of any one sample. However, there
 may still be some variability associated
 with using fish tissue data. Therefore,
 the proposed procedure 5.F.3 of
 appendix F directs the permitting  .    :
 authority to consider the variability of a
 pollutant's biocoiicentration and .
 bioaceumulation in fish. The assessment
 of the variability may-be accomplished
 by applying specific factors to adjust for
 differences in lipid content or age, or by
 applying an overall factor based on
 review'bf the variability in literature or
 field data. Whatever method is used by
 the permitting authority taiust be
 described in the administrative record
 supporting the permit decision. EPA
 invites comment on whether 'the final
 Guidance should allow permitting   .  ;
 authorities to determine this variability
on a site-specific basis; or otherwise
include specific procedures, for     :
addressing each part of the variability or
a uniform factor to address overall
variability.
  The proposed procedure 5.F.3 of
appendix F applies to all facilities that
discharge detectable levels of a
pollutant into a water body where the.'   .
pollutant is found in the fish tissue in
the water body at levels exceeding the
tissue basis of a Tier I criterion or Tier
n value. EPA is proposing that all
facilities that discharge detectable levels
of this pollutant into the water body are
contributing the pollutant and therefore
meet the requirements of 40 CFR
122.44(d)(l)(i). Because fish are mobile
and thereby reflect exposure'over the
entire water body, the fish tissue
concentrations reflect the accumulated
effect of all discharges.  EPA invites
specific comment on this provision of
the proposal including whether the term
"wate'r body" should be defined in the
final rule; any specific factors that
should be considered in defining this
term; and whether the scope of this -
provision should be limited to the
definition of "same body of water"
discussed as part of proposed procedure
5.E of appendix F to part 132 in the
preamble above.

F. Whole Effluent Toxicity
1. Background

^   Today's preamble has focused, thus
far, on the effect of individual pollutants
on the water environment. In nature,
pollutants are often not isolated;, they
are combined in effluents, and these
effluents are, in turn, combined in
receiving waters. Because the toxic
effects of pollutants may change when
they react with other pollutants, a focus
on individual pollutants does not
provide complete protection of water
quality. Procedure 6 of appendix F of
the proposed Guidance sets forth
procedures for controlling the toxic
effect of an effluent as a whole (known
as "whole effluent toxicity" or "WET").
   Concern for controlling the toxic
effects of effluents is reflected in both
the CWA and the Great Lakes Water
Quality Agreement (GLWQA). Article II
of the GLWQA and section 101(a) of the
CWA provide that the discharge of
. toxics in toxic amounts should be
prohibited. In addition, General      .
Objective (d) of Article HI of the
GLWQA provides that water should be
free from materials that will produce
conditions that are toxic or harmful to
human, animal or aquatic life. Pursuant
to these goals, today's proposed
procedure seeks to ensure that
combinations of pollutants do .not cause
toxic effects.
  The whole effluent approach to toxics '-•
control for the protection of aquatic life
involves the use qf acute and chronic
toxicity tests to measure the toxicity of
wastewaters. An acute test is defined as
a test of 96 hours or less in which
lethality or immobilization of aquatic
organisms is the measured endpoint. A
chronic test is defined as a long-term
test in which sublethal effects, such as ,
impaired fertilization, growth, or' • •
reproduction, are measured, in addition
to lethality or immobilization. Aquatic
organisms used hi the tests include
invertebrates, fish, and plants.
  Terms commonly u§ed to express the
toxicity of ah effluent include the lethal
concentration  (LC) and the no observed
effect concentration (NOEC). The LC is
the'concentration of an effluent at
which a certain percentage of test
organisms die  (for example, if 50
percent of the test organisms die in 20
percent effluent, the LC50=20). The ;
NOEC is the highest concentration of
effluent that causes no ohservable .     :
adverse effects in the test organisms (for
example, if none of the test organisms
exhibit any.adverse effects in 20 percent
effluent, but some organisms exhibit
adverse effects in 21 percent effluent,
the NOEG - 20). Other commonly used
terms are acute toxic units (TUa) and  ,
chronic toxic units (TUC), which are
defined as follows:    .    •

       "TUa=10Q/LC50

        TUC = 1007 NOEC
  For example, an effluent with LCso = '
20 translates to 5 TUa's.
2. Current National Guidance
   a. Regulations. EPA regulations define'
whole effluent toxicity as the aggregate
toxic effect of an effluent measured    ••
directly by a toxicity test (40 CFR
122.2). EPA's authority to set limits on;
toxicity was upheld in Natural
Resources Defense Council Inc. v. EPA,
859 F.2d 156 (D.C.Cir. 1988).
   As discussed in section Vin.E of -
today's preamble, EPA's existing     :
regulations require NPDES permits to
include water quality-based effluent
limitations (WQBELsj to control all
pollutants or pollutant parameters,   .
including WET, that the permitting
authority determines are or may be
discharged at a level which will cause,
have the reasonable potential to cause,
or contribute to an excursion above any
water quality standards including     -
numeric and narrative criteria for water
. quality (40 CFR 122.44(d)(i)); When r   -
determining whether a discharge will
cause, have the reasonable potential to

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 20968         Federal Register / Vol. 58, No. 72 / Friday, April  16,  1993 / Proposed Rules
 cause, or contribute to an excursion
 above a water quality standard, a
 permitting authority must use relevant
 available data, including facility-
 specific effluent monitoring data where
 available. Additionally, a permitting
 authority must use procedures that
1 account for existing controls on point
 and nonpoint sources of pollution;
 sensitivity of aquatic organisms;
 variability of the pollutant or pollutant
 parameter in the effluent; and, where
 appropriate, the dilution of the effluent
 In tho receiving water (40 CFR
 122.44{dMlHii)).
   If a permitting authority determines
 that a discharge causes, has the
 reasonable potential to cause, or
 contributes to an excursion of an
 applicable numeric water quality
 criterion for WET, it must include a
 WQBBL for WET in the permit (40 CFR
 122,44(d}{l)(iv)). In the absence of a
 numeric water quality criterion for WET
 fa a water quality standard, a permitting
 authority must derive an appropriate  •
 WQBEL for WET that will insure
 compliance with narrative criteria for
 wat«r quality unless the permitting
 authority demonstrates that chemical-
 spedOc WQBELs are sufficient to attain
 and maintain applicable numeric and
 narrative water quality criteria (40 CFR
 122,44(dJ(lKv)).
   Currant NPDES regulations at 40 CFR
 part 136 require permitting authorities
 to use analytical methods promulgated
 at 40 CFR part 136. In the case of WET,
 there are no promulgated analytical
 methods. When there is no analytical
 method promulgated, permitting
 authorities have the discretion to
 specify the method for use.
   b. Existing Technical Guidance. EPA
 guidance on developing WQBELs for
 WET is set forth in the "Technical
 Support Document for Water Quality-
 based Toxics Control ("TSD"}" (EPA/
 505/2-90-001, March 1991), which is
 available La the administrative record
 for this rulernaking. Copies are also
 available upon written request from the
 person listed in section XIII of this
 preamble. In the TSD, EPA provides
 recommendations on methods for,
 among other things, developing acute
 and chronic WET criteria from State or
 Tribal narrative water quality criteria,
 determining when a discharge has the
 reasonable potential to cause or
 contribute to an excursion above water
 quality standards, and conducting
 additional studies to identify the cause
 and method for treating WET. The TSD
 is EPA guidance only. It does not
 establish or affect legal rights or
 obligations.
   Currently, there are no National water
 quality criteria for WET. In the TSD,
EPA recommends that a State's narrative
criterion be interpreted as 0.3 TUa and
1.0 TUC. Achievement of the criterion is
measured with acute and chronic WET
tests using at least three aquatic species.
EPA also recommends in the TSD that
the 0.3 TUa and 1.0 TUC values be
applied as 24-hour and 4-day averages
respectively, and that these values not
be exceeded more than once every three
years. These recommendations mirror
the duration and frequency assumptions
of EPA's National chemical criteria for
protection of aquatic life.
  The TSD explains the derivation of
the 0.3 TUa and 1.0 TUC values. The 0.3
TUa value represents the concentration
that assures no lethality or mortality.at
any point xvithin the ambient water
column. EPA collected information on
496 acute 96-hour WET tests in the early
1980's which showed no mortality at
the 0.3 TUa level in 91 percent of the
samples and used this information to
support the recommendations in the
TSD. The 1.0 TU0 value represents the
highest concentration at which chronic
tqxicity effects are not observed
throughout a waterbody.
  In the TSD, EPA recommends
applying the 0.3 TUa acute criteria value
at the edge of an acute mixing zone and
the 1.0 TU0 chronic criteria value at the
edge of a chronic mixing zone, unless
otherwise prohibited by a State's water
quality standards. (EPA interprets the
CWA to give States the discretion to
allow mixing zones in their water
quality standards.) The TSD recognizes
mat in States that prohibit mixing
zones, effluent limitations must assure
that all State;adopted numeric criteria
or interpretations of the narrative
criterion are met within the discharge
itself.                    -
  An acute mixing zone is a zone    ~
immediately surrounding a discharge
point ivhere neither  acute nor chronic
criteria need be met. (Acute mixing
zones are also sometimes referred to as
zones of initial dilution (ZEDs) or areas
of initial mixing (AIMs). However, these
terms may also have different regulatory
definitions and may not be always used
to denote an acute mixing zone.) A
chronic mixing zone is where acute
criteria must be met. All chronic criteria
must be met at the edge of that zone.
The TSD guidance also recommends
that mixing zones be restricted in size
in order to prevent impairment of the
integrity of a waterbody.
  The TSD guidance recognizes that
permitting authorities have flexibility in
assessing whether a discharge has
reasonable potential to exceed water
quality standards. For example, an
authority may opt to use a stochastic
dilution model that incorporates both
 ambient dilution and effluent variability
 rather than use a steady state dilution
 model with a statistically defined
 maximum effluent concentration. Also,
 a permitting authority may decide to
 develop a WQBEL in the absence-of
 facility-specific effluent monitoring
 data. Whatever approach is selected by
 the authority, it must satisfy all
 requirements of 40 CFR 122.44(d)(l)(ii)
 summarized above.
  Under EPA regulations, at least three
 outcomes are possible when deciding
 whether a facility causes, has the
 reasonable potential to cause,  or
 contributes to an excursion above a
 water quality criterion. First, a
 permitting authority may determine that
, WET in a facility's discharge may be
 discharged at a level which causes, has
 the reasonable potential to cause, or
 contributes to an excursion above a
 narrative or numeric water quality
 criterion. In this case, EPA regulations
 require that the permitting authority
 establish a WQBEL in the permit. (40
 CFR 122.44(d)(l)(i)) This WQBEL must
 be for WET, unless the permitting
 authority can demonstrate that
 chemical-specific limits are sufficient to
 attain and maintain applicable
 standards. (40 CFR 122-44(d)(l)(v))
  Under EPA regulations and the TSD,
 reasonable potential is shown  where an
 effluent, in conjunction with other point
 and nonpoint sources, is projected to
 cause an excursion above the water
 quality criterion. This projection is
 based upon an analysis of available data
 that accounts for, among other things,
 limited sample size and effluent
 variability.
  Second, a permitting authority may
 have inadequate information to
 determine whether a discharge causes,
 has the reasonable potential to cause, or
 contributes to an excursion of a water
 quality criterion. In this case, EPA
 regulations do not require that the •
 permitting authority establish  a WQBEL,
 however, the TSD recommends that the
 permitting authority establish
 appropriate monitoring requirements
 and a reopener clause in the permit (see
 TSD at p. 60). A reopener clause
 authorizes "reopening" the permit and
 establishing additional permit
 conditions based upon monitoring
 results or other new factors that indicate
 that the effluent may cause, hav.e the
 reasonable potential to cause, or
 contribute to an excursion above Water
 quality standards. When permits are '
 "reopened" in this manner, permitting
 authorities typically impose WQBELs
 for WET or require a discharger to
 perform a toxicity reduction evaluation  ,
 (TRE).

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Federal Register / Vol. -58, No. 72 / Friday, April 16, 1993 / Proposed Rules
                              20969
•-  Third, a permitting authority may .
 determine that WET in a facility's
 discharge is not discharged at a level
 that causes, has the reasonable potential
 to cause, or contributes to an excursion
 above a water quality criterion. In this
 case, EPA regulations do not require
 that the permitting authority establish a.
 WQBEL, however. The TSD
 recommends that effluent monitoring be
 .repeated at a frequency of at least once
 every five years (see TSD at p, 60).
   In the TSD, EPA also recognizes that
 permitting authorities may need to
. require permittees to take specific
 actions to identify the causes of •
 exceedances of WET WQBELs. The TSD
 recommends that permitting authorities
 require permittees that are not  in
 compliance with their WET WQBEL to
 ;use TREs to identify the causes of WET,
 isolate the sources of WET, evaluate the
 effectiveness of WET control options,
 and confirm the reduction of TOT. EPA
 has published guidance for conducting
 TREs including "Generalized
 Methodology for Conducting Industrial
 Toxicity Reduction Evaluations (EPA/
 600/2-88/070)", "Toxicity Reduction
 Evaluation Protocol for Municipal
 Wastewater Treatment Plants (EPA/600/
 2-88/062)", "Methods for Aquatic'
 Toxicity Identification Evaluations;
 Phase i Toxicity Characterization
 Procedures (EPA/600/3-88/034)",
 "Methods for Aquatic Toxicity
 Identification Evaluations; Phase 2
 Toxicity Identification Procedures
 '(EPA/600/3-88/035)", and "Methods for
 Aquatic Toxicity Identification
 Evaluations; Phase. 3 Toxicity
 Confirmation Procedures (EPA/600/3-
 88/036)", which are available in the
 administrative record for this
 rulemakirig.
   EPA's guidance in the TSD
 recommends that TREs be required
 whenever a discharger exceeds a WET
 WQBEL and the effluent exhibits
 measurable WET more than 20 percent
 of the time. The recommendation in the
 TSD was based on the performance
 experience of EPA's research laboratory
 in Duluth, Minnesota which has
 successfully performed the toxicity
 identification evaluation step of a TRE
 on over 60 dischargers. If the discharge
 exhibits WET less than 20 percent of the
 time, the specific procedures of EPA's
 toxicity reduction evaluation guidance
 may be unable reliably to identify the
 cause of toxicity.

 3. Great Lakes Guidance
   Procedure 6 of appendix F of the
 proposed Guidance provides specific
 requirements for controlling the WET of
 discharges to the Great Lakes System.
 The procedure contains four sections:
                      Discharge requirements for WET,
                      appropriate test methods to measure
                      WET, requirements for permit     •"  •
                      conditions, and reasonable potential
                      procedures for determining whether or
                      not limits for WET are necessary. The
                     . procedure does not cover all topics
                      addressed in the TSD. The proposed
                      Guidance on WET merely supplements,
                      rather than replaces, the regulations at
                      40 CFR 122.44(d)(l) for dischargers to
                      the Great Lakes System.
                        The requirements of procedure 6 of
                      appendix F apply without regard to the
                      cause of toxicity in an effluent.
                      Specifically, these requirements apply
                      whether or not one or more of the
                      pollutants listed in Table 5 of part 132
                      of this Guidance is the cause or possible
                      cause of toxicity in an effluent. As set
                      in more detail elsewhere in this
                      preamble, the.ratibnale for not applying
                      Implementation Procedures 1 through 5
                      and 7 through 9 to the Table 5 '-..'•"
                      pollutants relates to fundamental    /
                      inconsistencies between.the nature of
                      the pollutants and the specific
                      requirements of the procedure,?. These
                     ? considerations are not relevant with
                      respect to procedure 6, which sets forth
                      requirements with respect .to the  toxicity
                      pf effluents as a whole. A contrary
                      viewpoint would seriously limit the
                      effectiveness of the WET procedure
                      since at least one of the Table 5
                      pollutants is  likely to be present in the
                      vast majority of discharges to  the Great
                      Lakes System.
                       • a. WET Basic Requirements.
                      Procedure 6.A of appendix F prohibits
                      any discharge from: exceeding 1.0 TUa
                      at the point of discharge; causing or
                      contributing to receiving water quality
                      exceeding 1.0 TUC (subject to  certain
                      exceptions); and causing or contributing
                      to causing an excursion above any    ,
                      numeric WET criterion Or narrative
                      criterion for water quality within a  State
                      or Tribal water quality standard.
                        Procedure 6 does not require a  Great
                      Lakes State or Tribe to adopt numeric
                      criteria for WET. The proposed Great
                      Lakes Guidance, rather, specifies .
                      effluent restrictions that apply when
                      either narrative or numeric criteria are
                      involved. Like the Federal regulations at
                      40 CFR 122,44(d)(l) (iv) or (v), which
                      provide for control of WET with either -
                      numeric or narrative criteria,
                      respectively,  the proposed Great Lakes
                      Guidance allows- the Great Lakes  States
                      or Tribes to choose the preferred form
                      of criteria to implement. The proposed
                     .Guidance is at least as-.stringent as the
                      Federal regulations.
                        The Technical Work Group  of the
                      Initiative Committees considered
                      whether to require all Great Lakes States
                      or Tribes to adopt numeric criteria for
 WET- This approach has the potential to
 ensure the greatest consistency when,!
 controlling WET, The Technical Work
 Group chose not'to require the adoption-
 of numeric criterion for WET due to a
 regulatory difference between
 implementation of numeric criteria and
 implementation of narrative criteria in
 existing Federal regulations. Under 40
 CFR 122.44(d)(l)(v), permitting
 authorities, may decide that WQBELs for
 WET are not necessary if the State's
 water quality standard does not contain
 a numeric criterion for WET and the
 permitting authority demonstrates in the
 fact sheet ,or statement of basis of the   "
 NPDES permit that chemical-specific
 limits will be sufficient to prevent ...;".
 toxicity. This same discretion is not
 available for States that have, a numeric
 criterion for WET in their WQS. To ,
 preserve this flexibility for the Great
 Lakes States, the Technical Work Group
 chose to structure procedure 6 in the
 manner set forth in the proposed
 Guidance. However, under proposed ,
 procedure 6, Great Lakes States and
 Tribes will be required to meet certain
 specific requirements in controlling
 WET whether the applicable water
 quality criteria are expressed in the
 narrative or numeric form. EPA believes
 that, under this procedure, discharge
 requirements for WET will be  '        :
 reasonably consistent among the Great
Lakes States and Tribes.
  EPA invites comments from the
 public as to whether the proposed
 Guidance should require Great Lakes^
 States and Tribes to adopt numeric
 criteria for WET. In addition, if numeric
 criteria should be adopted, EPA is
 interested in receiving comments
regarding what numeric criteria,
 including those specified in the TSD
 (0.3 TUa and 1.0 TUc), would be
 appropriate.numeric criteria for WET
  i. Acute Toxicity Control. To protect
 against acute (short-term) effects in
 mixing zones, procedure 6.A.1 of the
 proposed Great Lakes Guidance
proposes that no discharge exceed 1.0
TUa. The 1,0 TUa maximum limitation
 or "cap" is by definition no more than
 50 percent mortality or immobilization.
 in 100 percent effluent.
  The 1.0 TUa effluent cap is based
upon the proposals of the Great Lakes
Initiative Steering Committee.'The
 Steering Committee believed that the 1.0
TUa cap would protect water quality
either as a single effluent limitation in
water providing substantial dilution or
in concert with a chronic WET limit in
waters without substantial dilution.
Whether a chronic limit is required to
supplement a limit of 1.0 TUa depends
upon the amount of dilution that will
occur in the receiving water. In waters

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 20970          Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993  /  Proposed Rules
 providing dilution of more than three
 times effluent flow, a 1.0 TU, limit will
 ba sufficient to attain and maintain the
 WET criteria recommended in the TSD
 (0.3 TUJ. (There is approximately a
 three-fold difference between the 1.0
 and 0.3 TU» values.) Indeed, in these
 situations, there is a possibility that a
 1,0 TU. may be overly stringent since,
 in these situations, the actual effect of
 the effluent in the receiving water, after
 dilution, may be less than  0.3 TU, if the
 effluent is completely mixed after
 discharge. However, effluents in many
 of these situations actually form plumes
 and ara not completely mixed for some
 distance downstream of the discharge.
 Discharge plumes can overlap such that
 tho toxic effects of the effluent are
 compounded La the ambient water to
 the degree that the toxicity overwhelms
 thtt immediate aquatic life  community.
 In addition, calculation of the WET
 concentrations at the edge  of the plumes
 can pose an administrative burden in
 collecting the necessary dispersion
 information for conducting the
 calculations, For these reasons, the
 consensus of the Steering Committee
 was to propose an effluent cap of 1.0
 TU«,
  The Steering Committee recognized
 that in discharge situations which
 provide dilution of less than three times
 tlw effluent flow, the 1.0 TU. effluent
 limitation may not be stringent enough
 to insure that a narrative "no lethality"
 criterion, the 0,3 TU, value or other
 approved numeric  criterion for acute
 WET would be met. The reason for this
 lies in the definition ofi.O TU.as 100
 times the reciprocal of the  LC50. The
 LC50, as previously discussed in today's
 preamble, is the effluent concentration
 at which 50 percent of the  exposed
 aquatic organisms demonstrate lethality
 or immobilization.  In discharge
 dominated situations where the
 receiving water is comprised of a
 substantial fraction of the effluent, an
 effluent discharged at toxicity of 1.0 TU,
 may not be sufficiently diluted to
 prevent lethality to organisms in the
 receiving water. In  these situations, the
 appropriate control on toxicity should
 be based on the threshold at which
 ocuto toxicity occurs. The proposed
 Guidance uses effluent limitations on
 chronic toxicity as the means for
 accomplishing this. In contrast to the
acute effluent limitation, the chronic
 effluent limitation is based on meeting
 a receiving water condition of 1.0 TUC
ot the edge of the mixing zone, if such
a mixing zone is allowed. The definition
of 1,0 TU£ is the lowest effluent
concentration at which no  effects,
Deluding lethality  or immobilization,
 are observed. It is a measure of the
 threshold of.incipient toxicity.
 Therefore, for discharge scenarios with
 small amounts of available dilution,
 chronic testing should be performed and
 evaluated for unacceptable acute
 toxicity. When acute effects are
 measured, then a chronic limit based
 upon the level causing lethal effects
 should be imposed in addition to or in  ,
 lieu of the 1.0 TU. effluent cap.
  The  1.0 TUa effluent cap is consistent
 with the goal of the GLWQA at Annex
 10, Part 3.(a)(i), where acute
 lexicological effects are prohibited. The
 GLWQA defines acute toxicological
 effects as whether the substance is lethal
 to "one-half of the  test population of
 aquatic animals in 96 hours."
 Depending on the test species, the acute
 tests will last for either 48 hours (for
 invertebrates) or up to 96 hours (for
 vertebrates). Acute mixing zones would
 provide the basis for toxicity greater
 than 1.0 TUa, and are therefore not part
 of the proposed Guidance.
  EPA invites comment on the utility of
 other options for preventing acute WET
 effects in low dilution receiving water
situations. In specific, EPA invites
 comment on the use of another acute
 WET testing endpoint, such as the LCi
 (effluent concentration at which 1
 percent of the organisms demonstrate
 lethality or immobility) or a chronic
 toxicity test endpoint equivalent to 0,3
TUa, either applied directly as an
 effluent limitation  or as an ambient
 condition  applied at the edge of the
 mixing zone. EPA also invites comment
 on whether the final Guidance should
 allow for acute mixing zones, and if so,
what should be the maximum size.
  In addition, EPA invites comment on
the utility of other  options for
preventing acute WET effects in high
dilution receiving water situations. In
specific, EPA invites comments on ..
whetherthe proposed'effluent cap of 1.0
TU« is too restrictive in high dilution
situations, and if so, what effluent
conditions would be fully protective of
the narrative water quality criterion. In
addition, EPA invites comment on the
utility of an ambient criterion of 0.3 TUa
applied at the edge of an acute mixing
zone for these situations, and on
appropriate methods to calculate or
estimate acute mixing zones.
  EPA  also invites  comments on
whether it would be appropriate to
allow discharges with toxicity in excess
of 1.0 TUa where site-specific
information is available to demonstrate
that such discharges will not cause,
contribute or have the reasonable
potential to cause or contribute to an
exceedance of a State or Tribal water
quality standard.
   ii. Chronic Toxicity Control. The
 proposed Guidance, at procedure 6.A.2
 of appendix F, requires that a value of
 1.0 TUC must be maintained at all points
 of the receiving water except (i) within
 a mixing zone, or (ii) in any portion of
 the receiving water for which a  '
.. permitting authority has demonstrated
 that due to the site-specific physical and
 hydrological conditions, it is
 unnecessary to apply any chronic WET
 requirements to protect aquatic life. The
• 1.0 TUC value is, by definition, the point
 at which no effect is observed in a test
 solution that approximates the dilution
 of the effluent in the receiving water.
 This requirement is consistent with the
 TSD recommendation.
   EPA invites comment on the ability of
 1.0 TUC applied at the edge of a chronic
 mixing zone to sufficiently achieve a
 State or Tribe's narrative water quality
 criterion. In particular, EPA invites
 comment on alternative definitions of
 1.0  TUC based on the use of a different
 chronic toxicity test endpoint (for
 example the.IQjs endpoint). In addition
 EPA invites comment on whether the
 1.0  TUC criterion should be adjusted
 higher or lower to reflect the sensitivity
 of aquatic organisms indigenous to the
_Great Lakes System.
   Under procedure 6.A.2 of appendix F
 of the proposed Guidance, a Great Lakes
 State need not apply the 1.0 TUC
 requirement (and therefore need not
 impose a chronic WET WQBEL) when a
 State demonstrates that due to local
 physical or hydrologic conditions of the
 receiving water, it is unnecessary to
 apply any chronic whole effluent
 toxicity requirements to protect aquatic
 life. This text is similar to that included
 in procedure 1 of appendix F, which
 provides that.States may develop site-
 specific modifications to chronic
 aquatic life criteria/values for individual
 pollutants to reflect local physical or
 hydrologic conditions.
   As explained in section VIII. A of this
 preamble, EPA believes that there may
 be sites within the Great Lakes System
 where, due to physical or hydrologic
 conditions, aquatic life will not remain
 for more than 96 hours. In such
 situations, WQBELs are not necessary to
 protect aquatic life from chronic
 impacts. Since the physical and
 hydrologic condition justification for
 the  exception to procedure 6.A.2 of
 appendix F is functionally equivalent to
 a justification for the removal of a
 designated use at 40 CFR 131.10(g)(2),
 (4),  and (5), EPA expects this exception
 will typically be used for waters where
 a full aquatic life use is unattainable.
 States must ensure that the application
 of this exception does not impair the
 water quality of downstream waters.

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                                                                     20971
   EfA invites comment on the ability of
 this exception to provide adequate
 protection of waters tributary to those
 waters where the exception may apply.
 In particular, EPA invites comment on, •
• the use of a 96-hour exposure psriod to
 define the waters where the exception
 applies and whether an alternative
 definition should be uspd.
   iii. Numeric and Narrative Criteria.
 The proposed Guidance prohibits any
 discharge from causing or contributing
 to an excursion above any State or Tribe
 adopted numeric criteria for WET or
 interpretation of the narrative criterion
 for water quality. This provision was
 not contained in the Steering
 Committee's proposal. EPA added
  Erocedure 6.A.3 of appendix F to make
  : clear that the proposed Guidance on
 WET merely supplements, rather than
 replaces, the requirements of 40 CFR
 122.44(d)(l) for dischargers into the
 Great Lakes System. EPA believes that
 procedure- 6.A.3 is necessary because
 there may be instances where a
 Federally-approved State or Tribal water.
 quality standard has additional or more
 stringent requirements pertaining to
 toxicity than those contained in today's
 proposal. Procedure 6.A.3 makes it clear
 that these additional requirements must
 still be met. EPA solicits comment on
 whether.or not procedure 6.A.3 of
 appendix F is a necessary or appropriate
 part for the proposed Guidance.
 • b. WET Test Methods. Procedure 6.B.
 of appendix F of the proposed Guidance
 requires all WET tests be performed in
 accordance with test procedures  -
 approved under 40 CFR part 136-.
 Current NPDES regulations at 40 CFR
 part 136 require permitting -authorities
 to use analytical methods promulgated
 at 40 CFR part 136. In the case of WET,
 there are no promulgated analytical
 methods. When there is no analytical
 method promulgated, permitting     ;
 authorities have the discretion to
 specify the method for use. The
 proposed Guidance at procedure 6.B is
 consistent with this .current NPDES
 requirement.  '•.           •.   '    '.--...
   Although EPA has yet to approve any
 analytical  methods for WET under 40
 CFR part 136. EPA expects to do so
 before the proposed Great lakes Water
 Quality Guidance is finalized. Until
 such methods are approved, permitting
 authorities have the discretion under
 procedure 6.B to choose appropriate
 analytical methods,           '
  EPA expects that permitting
 authorities, in exercising this discretion,
' will require WET analytical methods
 that include conditions  such as the test
 species to be used in tests, length of
 exposure for both acute  and chronic test
 procedures, conditions of the effluent
and control water solution, appropriate
methods for evaluating the data, and
reporting requirements.
  EPA invites comment on the WET test
methods that should be identified in the
final Great Lakes Water Quality
Guidance. In addition, EPA invites
specific comment on what factors a
permitting authority should consider in
approving any particular test, and
whether consideration of such factors
should be required in the final
Guidance.       .                 ,
  c. Permit Conditions. The proposed
Guidance proposes specific permit
requirements for each of three
situations. These are:
  (l) When sufficient data demonstrate
that the reasonable potential to violate
the requirements of procedure 6.A of
appendix F exists;
 - 12) When sufficient data are not
available to determine whether the
discharge has the reasonable potential to
violate the requirements of procedure
6.A; and
  (3) When adequate data demonstrate
that reasonable potential to violate the
requirements of procedure 6.A does not
exist.        ,
  i. Data Indicates the Reasonable
Potential for WET. Procedure 6 .C.I of
appendix F requires that permitting   '
authorities impose effluent limitations
for WET when sufficient effluent-
specific data demonstrate, in accordance
with, procedures 6.D.2 or D.3, that the
reasonable potential exists to violate the
requirements of procedure 6.A.
Procedure 6.C. 1. also includes three
other provisions:
.  (1) Chronic WQBELs shall be
calculated based upon the dilution
calculations specified in sections C and ,
D of procedure B3 of appendix F;
  .(2) A schedule of compliance
consistent with procedure 9 of appendix
F of the proposed Guidance may be
(deluded in the NPDES permit; and
  (3) When regulating using a narrative
criterion for water quality, a specific
WQBEL for WET may not be necessary
.if it can be shown f and documented in
a taci sneei or statement ol basis tor a
NPDES permit) that chemical-specific
WQBELs will ensure compliance with
the requirements of procedure 6.A*
  When  reasonable potential exists, the
effluent limitations for acute WET will
be equal to. or less than, 1.0. TUa. The
effluent limitations .for chronic WET,
will be derived using the equation
.specified in procedure B3.C.2.a of
appendix F for lake discharges or the
Qad developed for the discharge using
the requirement in. procedure B3.D.3.a.ii
for tributary discharges. These specific
procedures from procedure B3 calculate
the .effect of dilution in establishing an
 effluent limitation that achieve a
 criterion at the edge of the mixing zone.
: EPA believes that these dilution
 considerations that were developed to
 apply to specific pollutants also apply
'to WET. EPA invites specific comment
 on the use of these procedures for WET,
 and if not appropriate, suggestions on
 what alternative procedure should be
 included in the final Guidance.
 .  EPA expects that the WQBELs for
 WET will be compared for compliance
 purposes to all species tested. EPA
 invites comments on Whether it is
 necessary to provide specific      .
 requirements to meet the most sensitive
 species.    ^         :             •
   Because some existing dischargers  .'.
 may not be able to meet WET limits at
 the time that their permits are reissued
 or modified to include new WET limits,
 EPA believes that allowing some
 permittees time in which to achieve
 compliance may be appropriate where
 allowed for in State or Tribal water
 quality standards. The proposed.
 Guidance requires that compliance   .
 schedules, however, be developed in
 accordance with procedure 9 of
 appendix F of the proposed Guidance.
 EPA invites comment of this provision
 in conjunction with the comments on.
 procedures.
   The provision at procedure G.C.l.d
 mirrors the existing regulation at 40 CFR
 122.44(d)(l)(v). As discussed earlier,  •
 EPA is including this provision to
 eliminate any confusion about the      ,
 applicability of 40 CFR 122.44(d)Ci)(v)
 to facilities covered by,the Guidance.
   ii, Insufficient Data to Determine the
 Reasonable Potential for WET. As
 previously discussed in this preamble,
 40 CFR 122.44(d)(l)(i) requires a
 permitting authority to impose effluent
 limitations whenever it finds that a
 facility has the reasonable potential to
.cause or contribute to an excursion
 above a  State's numeric or narrative  ..
 water quality criterion, Procedure 6.C.2
 of the proposed Guidance recognizes the
 potential for a permitting authority to
 have insufficient information reliably to
 aetermme waether a facility causes, has
 the reasonable potential to cause, or
 contributes to such an excursion. In this
 instance, the proposed Guidance
 requires permitting authorities" to collect
 sufficient information by requiring
 effluent monitoring in permits.
   The Technical Work Group   ,
 recognized the necessity to make
 permitting decisions based on  good
 information and the preference for
 facility-specific effluent monitoring data
 for making these decisions. The
 Technical Work Group considered
 several ways in which to collect such
 information, One approach is to collect

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Federal Register / Vol. 58, No. 72  / Friday, .April 16, 1993  /: Proposed Rules
the necessary Information as a permit
monitoring condition. In this approach,
the permitting authority would impose
specific WET monitoring requirements
that reflect the site-specific factors of the
facility. This approach allows the
permitting authority to gather
information that is representative of the
effluent condition pver a multiple-year
period, and therefore the effluent's
variability can be reasonably assessed.
In addition, this approach allows the
permitting authority to tailor the
requirements for sample collection to
the specific instances of the facility
based on the information in the permit
application, However, this approach
does delay the determination of
reasonable potential to the next permit
reissuance action which may be five
years later.
  Another approach is to require
sufficient information as part of the
permit application process. In this
approach, the permitting authority
would require the facility to collect the
necessary WET monitoring information
prior to permit issuance. This approach
has the advantage in providing the
nacessary information to make
reasonable potential determinations
before the first permit reissuance.
However, there may not be sufficient
lima to collect such information prior to
permit issuance nor may the permitting
authority know of all site-specific
factors that it may need to appropriately
determine the monitoring conditions.
  A third approach is for the permitting
authority to collect the necessary
information itself prior to permit
issuance. This approach has the same
advantages and disadvantages as
requiring facilities to submit WET
monitoring information with the permit
application. It also has the additional
disadvantage of imposing a large
resource burden on States due to the
need to send inspectors to each facility
to collect the information.
  Tho Technical Work Groupproposed
the alternative of requiring effluent
monitoring as a  permit condition. This
proposal is also  consistent with EPA's
guidance (TSD at page 60). The
proposed Guidance does not identify
the type of fedlity required to collect
this information, nor the amount and
type of effluent monitoring data that
would comprise a sufficient set of
information. The proposed Guidance
reserves the existing discretion of
permitting authorities to make these
decisions based on the site-specific
characteristics of the facility and its
receiving water. In deciding what
facilities are required to collect effluent
V4IET monitoring data, permitting
authorities may  consider a number of
                      factors including the type of facility, the
                      potential sources of toxic contaminants,
                      the presence of individual toxic
                      pollutants in the effluent, and known
                      impacts on the receiving water In
                      deciding the type of monitoring that
                      comprises a sufficient data set, EPA
                      expects permitting authorities to require
                      WET tests using multiple aquatic
                      species to be consistent with the
                      provision of 40 CFR 122.44(d)(lKii) that
                      requires consideratioh.of aquatic species
                      sensitivity. The amount of information
                      is left entirely to the discretion of the
                      permitting authority; the means to
                      account for the uncertainties posed by
                      infrequent monitoring are addressed in
                      the discussion of procedure 6.D of
                      appendix F of part 132 in today's
                      preamble.
                        Recognizing that the approach of
                      collecting effluent monitoring data as a
                      permit condition could delay effluent
                      controls necessary to achieve State
                      numeric and narrative water quality
                      criteria, the Technical Work Group  also
                      proposed that such effluent monitoring
                      be combined with a permit requirement
                      that the permittee initiate a TRE if the
                      monitoring demonstrated the reasonable
                      potential. The effluent conditions
                      necessary to initiate a TRE are not
                      specified in the proposed Guidance;
                      again, permitting authorities retain the
                      discretion to make these decisions based
                      on the site-specific characteristics of the
                      facility and its receiving water.
                        EPA invites comment on this,
                      proposed approach, and/or whether any
                      alternatives should be included in the
                      final Guidance. In particular, EPA
                      invites comment on whether the final
                      Guidance should require specific
                      monitoring conditions such as the
                      minimum number of samples to be
                      collected, the type of WET tests (acute
                      or chronic, and which species), and
                      which facilities need effluent WET
                      monitoring as a permit condition. EPA
                      also invites comment on whether a TRE
                      should be required as a permit
                      condition if the effluent monitoring
                      demonstrates reasonable potential, and
                      whether the final Guidance should
                      include a specific condition that
                      requires initiation of a TRE. EPA would
                      also like comment on whether
                      procedure 6 of appendix F should
                      require a specific reopener clause for
                      WET as opposed to or in addition to the
                      TRE requirement mentioned above.
                        iii. Data Indicates No Reasonable
                      Potential for WET. Procedure 6.C.3  of
                      appehdix F restates the current
                      authority for a permitting authority to
                      establish monitoring requirements for
                      WET in an NPDES permit. The
                      permitting authority may decide that it
                      is appropriate to impose continued
testing conditions upon those
dischargers for which it does not find
the reasonable potential to exceed
numeric or narrative water quality
criteria. Where the permitting authority
concludes that a continued monitoring
requirement is warranted based upon
the particular circumstances of a    '
discharge, the permitting authority may
require continued testing for a,
reasonable period of time and then
evaluate the monitoring results at the
conclusion of this period. For example,
a permitting authority may decide to
impose continued monitoring for a
discharger for which available effluent
WET data are limited or for which more
recent information raises the specter of
reasonable potential. Under sections 308
and 402 of the CWA, a permitting
authority can require NPDES permittees
to provide WET testing data to assure
compliance with State or Tribal water
quality standards.
   d. Reasonable Potential
Determinations. The proposed Guidance
specifies how a permitting  authority
shall determine the reasonable potential
to exceed the condition of procedure
6.A of appendix F. These specific
procedures are similar to those of
procedure 5  of the proposed Guidance
which pertains only to individual
pollutants.
  The proposed Guidance requires that
the factors described in 40 CFR
I22.44(d)(a)(ii) be evaluated when
making a determination whether
.reasonable potential to violate
procedure 6.A of appendix F exists.
These factors need to be considered in
all evaluations because the conditions of
40 CFR 122.44(d) require that when the
reasonable potential to exceed State
water quality standards exists, a  limit
must be imposed into a permit. The
conditions for evaluating reasonable
potential are not limited to situations
where effluent-specific data are
available. The regulatory factors  which
apply to WET and need to be evaluated
are: accounting for existing controls on
the point and nonpoint sources of
pollution, the variability of the pollutant
parameter in' the effluent, the sensitivity
of the species to toxicity testing and
where appropriate the dilution of the
effluent in the receiving water.
  The first factor in 40 CFR
122.44(d)(l)(ii) requires that existing
controls on point and nonpoint sources
must be evaluated. States must ensure
that existing controls on adjacent
discharges and the discharge of interest, .
as a whole, maintain the in-stream water
quality requirements for acute and
chronic WET. If the total controls
cannot ensure that the WET
requirements will be attained and

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                 Federal Register  /Vol. 58, No.  72 /Friday ."April  16,  1993  / Proposed Rules
                                                                      20973
 maintained, then additional controls
 need to be required in one or all cases.
 Existing State procedures also need to
 be used to account for multiple
 dischargers or toxicity from upstream
 source?.
   Procedure 6 applies for the most part
 when facility-specific effluent data are
 available. However, there are situations
 when a permitting authority may
 determine without facility-specific
 effluent data that the  reasonable
 potential to cause an  excursion of a
 WET criterion or the narrative criterion
 exists. Effluent data from similar
 industrial operations  can be.used to
 evaluate a facility for which no effluent-
 specific data exist. This information,
 within the judgement of the permitting
 authority can be used as a;ba"sis for
 .evaluating whether the reasonable
• potential to violate the WET
 requirements exists.  ,   ;
   When effluent data are available,
 procedures 6.D.1, D.2 and D.3 of
 appendix F also apply. It is believed
 that the procedures set forth in
 procedures 6.D.1, D.2 and D.3
 incorporate most of those.factors to
 some extent. There may be some
 situations, however, where those  ,
 formulas, themselves, do not involve all
 of the evaluating factors from 40 CFR
 122.44(d)(l)(ii). In those situations, the •••
 additional factors must be considered.
   i. Characterizing Acute and Chronic
 Toxicity Values. Great Lakes Guidance
 for-determining the reasonable potential
 to cause or contribute to a violation of
 State water quality standards for toxicity
 is provided in procedure 6.D or
 appendix F. (The Great Lakes Guidance
 for assessing reasonable potential to
 cause or contribute to water quality
 standards violations of chemical-
 specific numeric criteria is included in
 procedure  5 of appendix F, which was
 discussed in section VIII.E. of this
 preamble.) Procedure 6.D.1 provides
jguidance for three areas: how to
 characterize effluents when1 more than
 one toxicity result is available for a
 given time period; how to evaluate
 toxicity results for different test Species;
 and how to predict either chronic or
 acute toxicity levels if only one of the
 types of toxicity results are available.  ',:/
   If several acute tests are performed oh
 an effluent discharged on a given day or
 several chronic tests are performed.
 during a given month, procedures
 6.D.l.a and l.b recognize that averaging
 the data for the same species is
 appropriate. When only one WET test
 sample is collected, it is generally
 considered representative.and the most
 toxic result for each species is used.to
 determine if an effluent causes, has the
 reasonable.potentiai to cause or;. -
 contributes to a violation of the  -    ,' •
 requirements in procedure 6.A.
 However, due to the possibility that
 multiple tests may be conducted during
 the same day for acute tests or the same
 month for chronic tests, the proposed
 Guidance provides additional guidance.
   Acute test results generally equate to
 one day maxima, and therefore the.  " . • -
 proposed;Great Lakes Guidance, •  :
 proposes that all acute tests for the same
 species collected during one contiguous
 24-hour period will be averaged to give
 one daily result. Similarly, since
"chronic test results in the existing Great
 Lakes State NPDES programs generally
 equate to monthly average:
 concentrations, all chronic tests taken
 during the same calendar month for the
 same species will be averaged to give
 one 'monthly result. The acute and
 chronic averages will be used in the
 comparison provided  in procedure 6.D.2
 and procedure 6.D.3, respectively, to
 determine the need for-a limit.
   The regulations at 40 CFR
 122.44(d)(l)(ii) require that.species
 sensitivity be taken into account when
 determining whether the reasonable.
 potential to exceed water quality
 standards" exist. Species sensitivity
 occurs because aquatic species react
 differently to the causes of the toxicity ,
 in an effluent. In order to address this
 potential for variation and to be
 consistent with the regulatory
 requirements, the proposed Guidance at
 procedures 6.D.l.a and l.b of appendix
 F provides explicit direction to average
 only test results which are for the same ,
 test species. If the results from a
 sensitive species were averaged with a
 less sensitive species,  the average would
 mask the worse case toxicity levels for
 the most sensitive species. The
 "average'' results for each species along
 with other available effluent data will be
 used in the reasonable potential
 determinations provided in procedures
 6.D.2orD.3.
   The provision in paragraph D. 1 ,c of
 procedure 6 of appendix F provides the
 guidance for a State or Tribe to predict
 chronic toxicity from acute toxicity
 results or acute toxicity from chronic
 toxicity results, if one of the types of   •
 toxicity test results are not available.. It
 is  not unusual to have only one type of
 test, i.e. either acute WET tests or
 chronic WET tests, for a particular
 effluent. The  acute-to-chronic ratio
 (ACR) expresses the relationship
 between the concentration of WET, or a
 toxicant causing acute toxicity to a
 species, and the concentration of WET;
 or a toxicant causing chronic toxicity to
 the same species. An ACR is commonly
 used to extrapolate to  a chronic toxicity
 concentration using exposure      »
 considerations and available acute
 toxicity data when chronic toxicity data
 for the effluent are not available. This is
 often used in order to reduce testing:
 costs. The AGR is ideally calculated
 using effluent-specific acute and
 chronic test results. In the absence of
 data to develop a facility-specific ACR,
 the TSD suggests that .an ACR of 10 is
 an appropriate default, The default ACR
 is the upper 90th percentile of all the
 ACR data presented in appendix A-3 of
 the TSD. Given the protective margin of
 safety inherent with the use of a critical
. flow for the calculation of a chronic
: receiving water concentration, an ACR
:of 10 should provide ample protection
 against chronic instream impacts.
 •„ The proposed Guidance states that
 effluent-specific ACRs shall be used
 where available. Gathering enough data
 to develop an effluent-specific ACR can
 be costly and may be unnecessary to
 characterize an effluent. The proposed
 Great Lakes Guidance, consistent with
 National guidance, allows the use'of
 effluent specific ACRs, and in the.,
 absence of effluent specific ACR, the use
 of a default AGR of 10. EPA invites
 comments on whether other values
 above or below 10 would be more
 suitable for default ACRs. EPA would be
 interested in receiving comment oil the '
 alternative numbers and the justification
 for those alternative ACRs.
   ii. Specific Conditions for Acute
 Toxicity. The Great Lakes Guidance for
 WET also contains specific  ...  ,    •  -
 requirements for determining the
 reasonable potential to exceed the
 conditions of procedure 6.A of appendix
 F when effluent data are available.
 Procedure 6.D contains the reasonable
 potential requirements for WET which  :
 are equivalent to procedure 5 for - -.
 chemical-specific criteria. Procedures
 6.D.2 and D.3 provide customized
 requirements for determining the '    '
 reasonable potential to violate the WET
 requirements in procedure 6.A for acute
 and chronic WET effects, respectively.;
 Specifically for acute toxicity,   '  :  '
 reasonable potential exists if the results
 from an acute WET test divided into 50 ;
 percent is less than a factor that     ',...':
 accounts for effluent variability  and the
 number of effluent samples collected.   -
   These factors were calculated using a
 95 percent confidence level and a 95  \
 percent probability basis. The factor is
, applied to account for uncertainties-and
 variability with the effluent data. As    ^;.
 mentioned above, this is a function of
 the number of samples and the  •
 coefficient of variation of the effluent '
• samples. Because of the Uncertainty in:- . "
 deriving a CV for data sets with less    •
 than 10 data points, the GV is assumed
 to be Oi6. For data sets with 10 of,greater

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Federal  Register / Vol. 58, No,. 72 / Friday, April 16, 1993 / Proposed Rules
samples, the CV shall be calculated by
determining tho standard deviation of
the values and dividing by the mean.
  The term "individual WET tests"
means any results of acute WET tests
derived from samples taken on a
particular day when no other test results
are available) for the same day, and the
average of results, derived in accordance
with procedure G.D.l.a, when more than
ono sample was taken on a particular
day, The samples used in averaging
results for a day, would not be
accounted for in the number of samples
for determining the CV. For example, a
permittee may have eight acute test
results of samples taken on 8  separate
days. In addition, a sample was split
between the permittee and EPA during
an inspection on another day. Assuming
that both results of the split sample
meet the appropriate quality assurance
goals, both shall be averaged and the
results treated as one sample  and one
result, in accordance with the guidance
at procedure 6.D.I.Q. In order to
determine whether effluent has the
reasonable potential according to
procedure 8.D.2, the CV would be based
upon a sample of 9 results and not 10
results.
  Tha equation at procedure 6.D.2
provides a concise formula with which
to determine whether the reasonable
potential exists to violate the  1.0 TU.
effluent cap and therefore violate any
narrative criterion for water quality or
numeric criterion for acute WET. The
equation is based upon the discussion
provided in tha TSD for determining
wh«thor reasonable potential exists.
This equation and the premise in the
TSD is to statistically estimate the
greatest level of WET that could exist in
a particular effluent, A statistically
derived factor is applied to the highest
WET love! based upon actual effluent
data. The resultant would then be the
estimate of the highest possible level of
acute WET that could be reasonably
oxpoctod in the effluent.
  This procsdf.'e is consistent with that
specified inprocedura 5 of the proposed
Guidance, The preamble discussion at
section VflI,E.2!b.i provides a thorough
explanation of the justification for this
statistical approach used in both
procedures. The equation has been
modified for acute toxicity, to relate to
tho TSD recommendations with the
basic policy of the Steering Committee
of no acute mixing zones beyond 1.0
TU,, tho criterion will equal 50 percent
without accounting for additional
receiving water flow. The expression of
tho process has been placed in equation
format for tho proposed Great Lakes
Guidance,
                        Comments on the basic statistical  ,
                      approach should address the discussion
                      provided in the preamble discussion for
                      procedure 5 of appendix F. EPA invites
                      comments, however, regarding whether
                      the application of this reasonable
                      potential procedure is appropriate for
                      acute WET.
                        iii: Specific Conditions for Chronic ,,..,.
                      Toxicity. The reasonable potential
                      determination for chronic toxicity is
                      similar to the discussion for acute
                      toxicity. The proposed Great Lakes
                      Guidance formula for determining
                      whether reasonable potential to exceed
                      the 1.0 TUC requirement is that
                      reasonable potential exists if the level of
                      chronic toxicity of the effluent is greater
                      than the reciprocal of the product of a
                      multiply factor and the receiving water
                      concentration (RWC) of the effluent
                      Again, the size of the data sets dictates
                      the CV that is used in selecting the
                      multiplying factor. In addition, the
                      dilution flow from the receiving water is
                      taken into account. The dilution flow is
                      calculated using the guidance  from
                      procedure B3.C for lake dischargers and
                      procedure B3.D for tributary
                      dischargers.
                        The proposed Great Lakes Guidance
                      provides additional requirements when
                      deriving  the appropriate amount of
                      dilution which should be used in
                      developing the RWC. The RWC is based
                      upon the dilution of the effluent in the
                      receiving water. For tributary
                      discharges, the RWC is calculated
                      differently if the entity uses the,
                      receiving water for any portion of its
                      process wastewater. For entities which
                      do not use  the receiving water for the
                      source water, the RWC is the source
                      flow divided by the sum of the Qad
                      derived using procedure B3 of appendix
                      F plus the effluent flow. For entities
                      which use the receiving water for some
                      or all of its source water, the RWC is
                      derived by dividing the effluent flow by
                      the Qad. The RWC for lake discharges is
                      the effluent flow divided by 11.
                        When the RWC is high and the
                      coefficient of variation is great, the
                      formula will calculate chronic effluent
                      levels that cannot be measured. For the
                      situations where B is greater than I/ .
                      RWC, the proposed Great Lakes
                      Guidance provides flexibility for the
                      State to review the raw chronic toxicity
                      results to determine whether or not the
                      discharge has the reasonable potential to
                      exceed the 1.0 TUC level.
                        This formula is consistent with the
                      guidance provided in the TSD, section
                      3. The proposed Great Lakes Guidance
                      recommends estimating an upper bound
                      of the amount of toxicity which, would
                      be allowed in the receiving water based
                      up on the available dilution. If the .
chronic test results exceed the upper
bound estimate of what can be
discharged, then the effluent has the'
reasonable potential to cause an
excursion above the numeric chronic
WET requirement.              .      .
  EPA invites comments on whether
this approach is appropriate for
determining the reasonable potential to
exceed the chronic WET requirements
of procedure 6. A of appendix F.
  e. State and Tribal Adoption of
Guidance. Section 132.4(a)(7) of the
proposed Guidance requires Great Lakes
States and Tribes to adopt procedures
that are consistent with the proposed
Great Lakes Water Quality Guidance.
Great Lakes States and Tribes shall
adopt procedures for deriving permit
limits to control WET that are consistent
with procedure 6 of the Implementation
Procedures of appendix F of the
proposed Guidance. Procedure 6 of the
proposed Guidance is intended to
implement both narrative and numeric
criteria for toxicity. In the event a Great
Lakes State or Tribe choosesjo regulate
WET through narrative water quality
criteria, those criteria may not be
implemented in any manner less
stringent than specified in the proposed
procedure. In the event a Great Lakes
State or Tribe chooses to regulate WET
through numeric water quality criteria,
those numeric criteria must be
sufficiently stringent to provide a basis
for requiring all dischargers to comply
with the terms of procedure 6. A of
appendix F.
  In addition, a Great Lakes State or
Tribe must adopt procedures that, at a
minimum, require -consideration of the
same types of information as specified
in the proposed procedure 6.D of
appendix F and reach a decision that an
effluent limit is necessary where the
proposed procedures 6.D.2 and D.3
require effluent limitations.

G. Loading Limits

1. Expression of WQBELs as
Concentration and Mass Loading Rates

  In the proposed Guidance, EPA is
proposing to require that water quality-
based effluent limits (WQBELs) for all
pollutants discharged to the Great Lakes
System be limited in NPDES permits in
terms of concentration and mass loading
rate, except for those which cannot
appropriately be expressed in terms of
mass. These requirements are intended
to clarify what EPA believes to be the
appropriate application of the existing
Federal regulations at 40 CFR 122.45(f)
to the Great Lakes System to most
effectively implement the objectives of
the Clean Water Act and GLWQA,

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                 Federal Register / Vol. 58, No.  72 / Friday,"April' 16,  1903 / Proposed Rules
                                                                     20975
'  ,The unique character of the Great
 Lakes System is the basis for the
 proposed requirement that WQBELs be
 expressed in terms of both
 concentration and mass loading rates.
 Because of the long retention time and
 the complex flow patterns of the water ,
 in the Great Lakes System, the Lakes
 tend to act as a sink, accumulating
 persistent pollutants discharged to
 them. Many of the lingering         ,
 contamination problems in the Great
 Lakes System are the result of the long-
 term build-up and slow elimination rate
 of persistent contaminants in the   ,   ....-
 System, These characteristics are     .
 discussed in Background sections LA
 and ID of the preamble. During
 deliberations on the proposed Guidance,
 the Great Lakes States proposed
 inclusion of a provision requiring the "
 expression of WQBELs as both
 concentration and mass loading rate  •
 values to protect the integrity of the
 Great Lakes System. In particular,
 concerns werje expressed that increased
 loads of pollutants, which might comply
 with concentration limits, could
 accumulate in the Great Lakes System
 and result in increased difficulty in  :  •.
 attaining the goals and objectives of the
 Clean Water Act, the GLWQA and the
 Great Lakes Governors' Toxics-
 Agreement. The Great Lakes States were
 concerned that any additional        '
 accumulation of these chemicals in the
 Great Lakes System could prevent the
 attainment of beneficial uses*
  EPA shares these concerns and
 believes that the use of niass loading
- rate limitations is appropriate to  '
 implement the general purpose of the
 GLWQA to restore and maintain the  '
 chemical, physical and biological .
 integrity of the waters of the Great Lakes
 Basin Ecosystem. In order to achieve .
 this purpose, the Governments of the
 United States and Canada agreed, in the
 GLWQA to establish programs to
 eliminate and reduce to the maximum
 extent practicable the discharge of
 pollutants into the Great Lakes System.
 (Article H). The Governments also
 agreed that, consistent with these
 provisions of the GLWQA, it is the   •
 policy of the United States and Canada
 that "the discharge of toxic substances
 in toxic amounts be prohibited and the
 discharge of any or all persistent toxic
 substances be virtually eliminated."
 (Article n(a)). Additionally, the United
 States and Canada agreed that all
 reasonable and practicable measures
 must be taken to maintain and improve
 the existing water quality in those areas
 of the boundary waters of the Great
 Lakes System where such water quality
 is better than that prescribed by Specific
Objectives and.in those areas having
outstanding natural resource value.  .
(Article IV(c)). The proposed
requirement to establish both
concentration and mass-based WQBELs
in permits for discharges of pollutants to
the Great Lakes System will help to
assure progress toward these goals and
objectives.-                 :
  The existing Federal regulations at 40
CFR 122.45(f) require, with several   :
limited exceptions, the establishment .of
mass loading limitations in NPDES
permits.  The following discussion
compares the requirements in the
proposed Guidance to the existing
regulation, with emphasis on the .
exceptions" in the existing regulation.
  First, the proposed Guidance provides
one exception from the requirement to
express WQBELs in both concentration
values and mass loading rates.  •
Consistent with the existing Federal •
regulations at 40 CFR 122.45(0(1), the
,proposed Guidance does not require
Great Lakes  States to express WQBELs
as mass loading rates for pollutants
which cannot be appropriately
expressed in terms of mass, such as pH,
color, temperature, or radiation.
  Second, the Federal regulation also
includes an  exception to the
requirement for the development of
mass-based WQBELs for pollutants for
which technology-based limits,  •
developed on a case-by-case basis using
40 CFR 125.3, cannot feasibly be
expressed in terms of mass. Because the
proposed Guidance does not apply to
technology-based limits, it.does'not
affect the application of this provision
of the Federal regulations.
  Third, the proposed Guidance does
not include  the exception from mass
limits in 40  CFR 122.45(f) for pollutants
for which applicable standards or
limitations are expressed in terms of  ''•
other units of measurement Based on
this exceptioni permitting authorities
are not currently required to establish
mass loading rate WQBELs in all NPDES
permits if, for example,.the applicable
water quality standards are expressed
only in terms of concentration in the
ambient  water. Although 40 CFR
122.45(f) does not require establishment
of mass loading limits in all permits
under these circumstances, the
permitting authority must, hpwever,
currently include any limits determined
necessary based on best professional
judgment to meet water quality
standards, including, where
appropriate, mass loading rate limits.
(CWA sec, 301(b)(l)(c); 40  CFR
122.44(d).)
  The proposed Guidance  is consistent
with existing EPA guidance supporting
the use of mass loading rate limitations
 to protect water quality under these
 circumstances. The March 1991 revised
 "Technical Support Document for Water
 Quality-based Toxics Control (TSD)" '
 which is available in the administrative
 record for this proposed rulemaking,
 provides EPA's current nationwide
 guidance oh the implementation of the
 statutory requirements of section
 301(b)(l)(C) of the Clean Water Act and
 the associated Federal regulations;
 specifically 40 CFR 122.44(d)(l). Copies ;
 of this document are also available upon
 written request from the person listed in
 section XHI of this preamble. The TSD
 explicitly addresses the expression of
 WQBELs in terms of mass loading rates.
 Section 5;7.1 of tKe TSD clarifies that
'mass loading rate limitations are,
 especially important for the control of
.bioconceiitratable pollutants or those
 pollutants with effluent concentrations
 that are below detection levels. It further
 supports the. complementary, use of
 concentration limits and mass limits;
 particularly in low dilution situations.
 (See also 49 FR 38031,  September 26,   '.
 1984, "Permit writers are encouraged to
 express limits in terms of both mass and
 concentration. Mass-based limits are
 necessary and encouraged to prevent the
 use of dilution as a mean's of treatment
 and also,-where water quality is
 limiting, control total loadings in regard
 to the assimilative capacity of the .  •••••'
 receiving water body.")
  Finally, the proposed Guidance to
 express WQBELs as both.conceittration
 values and mass loading rates is  . .•
 necessary to implement the proposed
 antidegradationpolicy for the Great
 Lakes System. The use of mass limits in
 the Great Lakes antidegradation analysis
 is discusse'd in appendix E of the  •
 proposed Guidance.
  For the reasons identified above, EPA
 believes that WQBELs for discharges.to
 the Great Lakes System should be   . '•
 established as both a concentration
 value and an equivalent mass loading
 rate. EPA requests comment on all
 aspects of procedure 7  of appendix F of
 part 132 including whether the     ,
 requirement to establish WQBELs as
 both concentration values and mass •
 loading rates should be limited to an
 identified class of pollutants, (e.g.,
 persistent or bioaccumulatiye   .
 pollutants) and identification of any
 alternative provisions to achieve the
 goals of-the CWA, GLWQA, and the
 Great Lakes Governors'Toxics
 Agreement.
 2. Procedures to Calculate Mass Loading
 Limits
  Proposed procedure  7 of appendix F •
 establishes procedures to calculate mass
 loading rate effluent limitations to     "

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20976          Federal Register / Vol. 58, No. 72 / Friday, April-16, 1993 / Proposed Rules
restrict the loadings of pollutants to the
Great Lakes System. As discussed
above, procedure 7 requires that when
a WQBEL is developed based on
procedures 3,5, or other State
procedures, the limitation must be
expressed in terms of both
concentration and mass loading rate.
  Proposed procedure 7 also requires
that the concentration and mass
limitations must be consistent in terms
of daily, weekly, and monthly averages,
or in other appropriate time-related
terms, (procedure 7.A). For example,
where a concantration-based WQBEL is
expressed in terms of maximum  daily
and average monthly limitations, the
corresponding mass loading rate
limitations must likewise be expressed
as maximum daily and average monthly
limitations, The existing Federal
regulation at 40 CFR 122.45(d) requires
that limitations for continuous
discharges be expressed, unless
Impracticable, as average weekly and
average monthly limitations for POTWs
and maximum daily and average
monthly limitations for all other
continuous discharges. The proposed
Guidance does not change these existing
requirements, but instead ensures-
consistency between mass and
concentration-based limitations in
individual NPDES permits.
  During the Initiative Committee's
deliberations on the proposed Guidance,
an alternative was considered regarding
tha use of averaging periods for
WQBELs that are based on the criterion
that U» limits wera derived to protect.
Under such an alternative, WQBELs
would bo expressed hi term,s which are
consistent with the duration of the
criterion/value upon which the
Emitatlons were based. For example,
WQBELs based upon acute aquatic life
criteria would be expressed only as
daily maxima. Similarly, it would be
acceptable under such an approach to
express WQBELs based on human
health criteria as only annual averages
because the human health criteria are
derived using long-term exposure
assumptions. This approach, however,
appears is inconsistent with the existing
NPDES regulations for continuous
discharges at 40 GFR 122.45(d). The
existing regulation allows deviations
from the standard application of daily
maxima or weekly averages, and
monthly averages only in cases where
deriving such limitations is
impracticable. EPA's guidance provided
in the TSD provides the mechanism hi
most circumstances to derive daily
maximum, weekly average, and monthly
average limitations, regardless of the
criterion, as is required by the existing
regulation. EPA welcomes comment on
 all aspects of procedure 7. A of appendix
 F, including the identified alternative,
 other alternatives, and the practicability
 of implementing the proposed
 approach. EPA also requests comment
 on whether only requiring that mass
 loading limitations be expressed as
 monthly averages, in combination with
 the appropriate concentration limits
 which would still be required to fully
 implement 40 CFR 122.45(d), would
 adequately implement the objectives  of
 the CWA and GLWQA for the Great
 Lakes System. As discussed below with .
 regard to wet-weather discharges, such
 an approach may be appropriate to
 address short-term effluent mass
 discharge variability that may be
 associated with wet weather.
  Proposed procedure 7.B of appendix F
 directs the permit writer to use effluent
 flow rates when developing the mass :
 loading rate limits that are consistent "
 with those used in procedures 3, 5, or
 other State procedures, to develop the
 concentration-based WQBELs. For
 example, under procedure 3 of
 appendix F, ,a specific effluent flow rate
 and a receiving water flow rate will be
 utilized for each pollutant to determine •
 the TMDL and WLA, and from them the
 WQBEL, that will protect the water
 quality standards (WQS) in the
 receiving water. Under the requirements
 of- procedure 7.B, an effluent flow rate
 that is consistent with that used in the
 foregoing process to derive  a
 concentration-based WQBEL for a
 pollutant would be applied to derive the
 mass loading rate limitation. The
 existing Federal regulations at 40 CFR
 a22.44(d)(l)(vii){B) and 123.25(a)(15)
 require that water quality-based effluent
 limits in State and Federal NPDES
 permits be"* *  * consistent with the
 assumptions and requirements of any
 available wasteload allocation for the
 discharge * *  *". By specifying this
 requirement in today's proposal, EPA
believes that it will eliminate confusion
 that might arise regarding the proper
 effluent flow rate to be used in
 development of mass loading rate
permit limitations and thereby ensure
greater consistency between WQBELs in
the Great Lakes System.
  During the deliberation process on the
proposed Guidance, EPA and the Great
Lakes States considered requiring
permitting authorities to use design
flows for POTWs and annual average
flows for industrial facilities in all
circumstances to calculate mass loading
limitations as an alternative to proposed
procedure 7.B.  These flows are used as
default values by some Great Lakes
States in establishing WQBELs and may
have the beneficial effect of providing a
consistent requirement applicable to 'all
WQBELs in a permit, rather than
requiring the development of differing
effluent flow rates to correspond to
different criteria. EPA is not proposing
this alternative in the proposed
Guidance, because EPA believes that it
is more appropriate to ensure that the
permitting authority retains the  •
flexibility in establishing effluent flow
rates to adequately account for effluent
variability. EPA welcomes comment on
all aspects of procedure 7.B, including
the identified alternative or other
alternative procedures.

3. Special Provisions Applicable to Wet-
weather Discharges
  During Technical Work Group
deliberations on the proposed Guidance
EPA and the Great Ldkes States
considered including specific
provisions in the loading limits
procedure to address elevated effluent
flo'ws from continuous discharges that
might occur during wet-weather
discharge events, EPA is not proposing
such text in the proposed Guidance
because it believes that the procedures
for development Of TMDLs and WLAs,
and from them WQBELs; already
provide the permitting authority with
the ability to adequately account for
effluent variability in continuous
discharges, including that resulting from
wet-weather events. EPA invites ,
comment on this conclusion and on the
provisions discussed below, which were
considered by the Technical Work
Group.
  During Technical Work Group
deliberations on the proposed Guidance,
concerns were expressed regarding the
increased discharge flow rates that
might be associated with wet weather,
and.their effept.on compliance with
mass-loading rate limitations.
Specifically, it was argued that if wetr
weather events increase the flow rates
from certain point source discharges,
the  potential to exceed mass loading
rate limits may also increase if the wet-
weather.portion of the discharge carries
any of the limited pollutants. In
contrast, it was argued that wet weather
will generally not pose a similar
concern for compliance with
concentration limits, as the wet-weather
component of a discharge will typically
be dilute even when it may be
contaminated with the limited
pollutant. Furthermore, the effect of the
wet-weather discharges on the receiving
water may be more complicated as
nonpoint contributions may increase
and the resulting ambient pollutant
concentrations may increase or
decrease. The effect'of wet weather on
compliance with WQS is discussed '
more;thoroughly elsewhere in the

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     proposed Guidance. To account for the
     perceived uncertain effect on water
     quality of increased wet-weather mass
     loading rates and potential for permit
     limit violations, the Technical Work
     Group considered a procedure that
     would have allowed the permitting
     authority, to establish special permit
     conditions associated with wet-weather
     mass loading rates for non-BGe
     pollutants as long as such loading rates
     would still result in the attainment of
    the applicable water quality criteria.
    The provision would have been limited
    to,non-BCC pollutants because of the
    overriding concerns, discussed above,
    associated with long-term mass loadings
    of BCC pollutants,

      EPA is not proposing to include
    specific provisions in the loading limits
    procedure to address wet-weather flows,
    because it believes that effluent
    variability, which such a provision
    Would seek to address, may already be
    adequately addressed on a case-byrcase
    basis by the permitting authority.
    Effluent variability is already a required
   .consideration^ determining if
   WQBELs are necessary to protect water
   quality (40 CFR 122.44(d)(l)(ii)), and
   EPA's TSD provides EPA's guidance on
   how effluent variability should be
   addressed in WQBEL development.
   Permitting authorities continue to have -
   the ability to account for effluent
   variability, even though the.proposed
   Guidance on loading limits provides no
   specific provisions for addressing wet-
   weather, flows. Furthermore, EPA is not
   aware of information showing that the
   risk of violating mass limitations as a
   result of wet-weather flows is actually
   significant and cannot be adequately
   addressed by accounting for effluent -
  variability.      ,
    EPA requests comment on the
  approach to the development of mass
,  loading rate limits to account for wet-
  weather effluent variability supported
  by the proposed Guidance and also
  solicits information on the effect of wet-
  weather pollutant contributions on the
  ability of permittees to comply with
  mass loading limitations. EPA also
  requests comment on the alternative
  identified and any other methods to
  appropriately account for wet-weather
  induced effluent variability in the
.development of WQBELs. Finally, EPA
  invites comments regarding whether it
  may be appropriate to only require
  monthly average mass loading WQBELs,
  as discussed above in conjunction with
 /procedure .7. A of appendix F, as a
 mechanism to address wekweather
 effluent variability     ,
                                                                                                              20977
    H. WQBELs Below the Level of
    Quantification

      Many GreatLakes Water Quality
    Initiative (GLJVQ!) pollutants cause
    unacceptable toxic effects in amounts
    lower than can be reliably measured by
    the most sensitive current analytical
    techniques. Accordingly ,-the calculated
    water quality-based effluent limitations
    (WQBEL) for; those pollutants are often
    below a level that is analytically
    quantifiable.:^Vhen the W@BEL is
    calculated to be lower than a level that
    can be quantified, it is difficult to
    determine whether or not the facility is
   complying with the WQBEL. In these
   circumstances special techniques may
   be necessary to assess and assure
   compliance.
   1, Existing National Guidance
     NPDES regulations do not require
   specific procedures when WQBELs are
   less than quantification. However,
   several EPA guidance documents have
   addressed this issue. First, EPA's "Final
   Guidance on Section 304(1) Listing and
   Permitting of Pulp and Paper Mills" was
   released on March 15,1989 (March IS,
 ,  1989 Guidance), which is available in
   the administrative record for this
  rulemaking. This document
  recommends that where WQBELs are
  less than the detection level for the   ;
  specified analytical method, the WQBEL
  should be included in the permit and
.. the quantification  level of the analytical
  method should be the threshold for
  compliance determinations. This same
  issue was discussed in EPA's "Strategy
  for the Regulation of Discharges of
  PHDDs and PHDFs from Pulp and Paper
  Mills to Waters of the United States,"
  dated May'21, 1990 ("May 21,1990
  Strategy"), which is available in the    • '
 administrative record for this    :'
 rulemaking. The May 21,1990 Strategy
 modified the March 15,1989  Guidance
 by recommending that the permit writer
 specify the minimum level (ML) as the
 compliance evaluation level in permits
 that limit dioxin.
   Finally, in March 1991, EPA
 published the Technical Support
 Document for Water Quality-based
 Toxics Control ("TSD"),' which further
 expanded guidance on this subject. This
 document is-available in the
 administrative record for this
 rulemaking. Copies are also available -.
 upon written request from the address
 justed at the beginning of this preamble.
 The TSD recommends applying the
 concepts contained  in the May 21,1990
 Strategy to all pollutants.
   NPDES regulations do specify how
 samples are  averaged to obtain a
 monthly or weekly discharge limit.
 -   According to 40 CFR 122.2, average
    monthly (weekly) discharge limit means
    the highest allowable average of daily
    discharges over a calendar month
    (week), calculated as the sum of all
    daily discharges measured during a
    calendar month (week) divided by the
   ; number of daily discharges measured
    during that month (week). All samples
    taken must be included in these
    averages.         ,  :'..•          ,.-.-•-

   2, Great Lakes Guidance
     The Great Lakes proposaTestablishes
  ' P™£^£*et f?raddress"ig: Expression of
   a WQBEL below a level of quantification
   in a permit; the appropriate compliance
   evaluation level (CEL)~; and permit
   conditions to be included to ensure
   compliance when the WQBEL is below
   a level that can be analytically
   quantified. This procedure is specified
   in procedure 8 of appendix F of part 132
   of this proposed Guidance.           '
 - ,  The Great Lakes Guidance requires
  that the actual, calculated WQBEL he
  expressed in each permit. Even though
  a WQBEL cannot be measured
 'analytically, it mustbe specified. In
  addition to the exact WQBEL, the
  permit must specify the analytical
  method to be used to analyze the
  monitoring samples; the CEL; and the
  measurement frequency. The analytical
  methods used to analyze wastewater
  samples must be "ones specified in or  '
  approved as an Alternate Testing
  Procedure under 40 CFR part 136. This
  portion of the Great Lakes Guidance
 .closely follows the guidance of section

    There are many possible ways of
 defining a CEL, Some examples in
 current use are: .ML, method detection
 limit (MDL), and practical  -
 quantification level (PQL). The Great
 Lakes Guidance follows the TSD
 recommendation in that the proposed
 CEL for the purposes of this procedure
 is the ML. The GEL is defined in 40 CFR
 132.2 of the proposed. Guidance as the
 ML. The ML is defined in 40.CFR part
 136 as the level at which the analytical
 system gives recognizable spectra and
 acceptable cah'bration points. An ML is
 back calculated from method-specific
 weights and injection volumes. The use
 of MLs in evaluating acceptable
 quantification has been used by EPA in
 the development of the 1624 and 1625
 organic analytical methods (40 CFR part
 136), and the. 1613 analytical method as
 proposed in 56 FR 5090. In addition,
 EPA is in the process of developing
 additional MLs for the other analytical
 methodologies.
  When MLs are not available for a
pollutant, the permitting authority must
still specify a CELin the permit. The

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20978
Federal Register / VoL 58, No. 72  /Friday. April  16,  1993 /Proposed Rules
permitting authority has the discretion
to select the GEL in these instances. EPA
expects that the permitting axithority
will select a CEL that reflects the similar
performance of the ML, that is, the CEL
defines the lower bound of
quantification of a chemical analytical
method,                        ,
  There are several ways that permuting
authorities may specify the CEL in the
absence of a ML. One way is to use the
MDL specified in 40 CFR part 136. The
MDL is the minimum concentration of
a substance that can be measured and
reported with 99 percent confidence
that the analyte concentration is greater
than zero and is determined from the
analysis of a sample to a given matrix
containing the analyte.
  Another possibility is the minimum
quantification level (MQL). MQLs have
been developed as an interim measure
in the absence of strictly defined MLs.
An MQL is defined, similar to the ML,
 as the lowest concentration at which a
 particular substance can be
 quantitatively measured. MQLs for
 priority pollutants are based upon a
 literature search of existing information.
 The primary source selected was the
 Contract Required Quantitation Levels
  (CRQLs) and Contract Required
 Detection Levels (CRDLs) which were
  developed under the Contract
  Laboratory Program administered under
  CERCLA. When CRQLs were compared
  with the MLs for similar gas
  chromalography/mass spectroscopy
  (GC/MS) methods, the results showed
  that the levels are within the same order
  of magnitude. Therefore, defining MQLs
  as CRQLs or CRDLs appears to be
  appropriate as an interim measure
  where MLs have not yet been
  developed. EPA would like to receive
  VAWW w*wwwv*» ***** ,.•,———         »-^»T
  comments on the use of MDLs, MQLs or
  any other measure of the threshold of
  quantification as an alternative CEL hi
  the absence of MLs.            ...
    Procedure 8.A allows the permittee to
  demonstrate that a higher CEL is
  appropriate because of matrix
  interference. Quantification levels are
  unique for each selected analytical
  method. The presence of other
  pollutants in the effluent may cause
  interference with the analysis and affect
  the level at which quantification can be
  assessed. This matrix interference could
  raise the level at which one is able to
  determine that a pollutant is
  quantifiable.
     The proposed Guidance in procedure
  8 B specifies that a narrative statement
  should be included hi the permit. This
  statement must explain that the WQBEL
  for the pollutant is less than the ML.
  This statement clarifies to both the
  permittee and the public that it is not
                      currently possible to analytically
                      measure at those levels with available
                      methods and that other procedures for
                      assessing compliance with the effluent
                      limit wi5.be used.            ,
                        Procedure 8.C of the proposed Great
                      Lakes Guidance proposes text be
                      included hi each permit that defines
                      compliance with the CEL for maximum
                      daily permit limits, average weekly
                      limits, and average monthly limits.
                      Procedure 8.C states that any discharge
                      of a pollutant in amounts greater than or-
                      equal to the daily CEL for that pollutant
                      is an exceedance. Procedure 8.C further
                      states that, when a permit contains a
                      weekly or monthly limit, all discharges
                      sampled during such time period be
                      averaged according to" methods
                      established by the permitting authority,
                      with the average value compared to the
                      weekly or monthly CEL to determine
                       compliance.               .
                         Usually, when assessing compliance
                      with weekly or monthly average permit
                       limits, the limit is compared to an
                       average of samples taken during the
                       relevant time period. The permittee is
                       required to supply the minimum
                       required number of samples, and must
                       supply data for additional samples if
                       taken from the appropriate  period of
                       tune. In some cases, the permit may
                       require only one sample to  assess
                       compliance. If one sample is required
                       and supplied, then it represents the
                       average concentration of that pollutant
                       for the entire period of interest.
                          When the WQBEL is below the CEL,
                       and the effluent data set includes both"
                       quantifiable and non-quantifiable
                       samples, the compliance determination
                       is not simple. In this situation, some
                       method must be developed for
                       "averaging" these non-quantifiable
                       values to assess compliance with
                        weekly or monthly average limits.
                        Current EPA Guidance does n
\jujLi.o*j.w f " **• vjfc**wujj.wJ CLOGS HOc
specifically address this issue, and
today's proposed Procedure allows
permitting authorities to specify then-
own methods for "averaging" values in
this situation. EPA invites comment on
whether the proposed Guidance should
require Great Lakes States and Tribes to
adopt uniform methods for averaging
quantifiable and non-quantifiable values
in this situation and, if so, what such
methods should be.
  When a WQBEL is below the ML, one
cannot make a definitive statement as to
whether or not the concentration of the
pollutant in the effluent is above or
below the WQBEL. Because of this
constraint, other requirements are
necessary in order to increase the
likelihood that the concentration of the
pollutant in the effluent is as close to
meeting the WQBEL as possible.
Procedure 8.D of the proposed Great
Lakes Guidance requires that a pollutant
minimization program (PMP) be
specified in the permit in this instance.
This program would require a facility to
develop a pollutant minimization
program to reduce all quantifiable levels
of the pollutant in all internal or
indirect wastewater streams
contributing to the permittee's
wastewater collection system to
maintain the effluent at or below the
WQBEL. A PMP shall include, but not
be limited to the following: Annual
review an(l semi-annual monitoring of
sources of the pollutant, quarterly
monitoring of the pollutant in the
influent to the treatment system .
submittal of a control strategy for
reducing loading of the pollutants of
concern to the treatment system,
reporting of actions which are
consistent with the control strategy as
the sources of the pollutants are
 discovered, and annual status reporting
 of activities and accomplishments. EPA
 invites specific comments regarding
 whether the conditions otthe PMP are
 appropriate, including whether the
 frequency for monitoring of the sources
 of the pollutant (procedure 8.D.1) and
 the influent (procedure 8.D.2.) are
 appropriate.               -
   EPA expects the PMP to recognize
 that there are practical constraints on
 treatment capabilities. Therefore, EPA
 does not view the PMP as a zero  ''
 discharge requirement. Instead, it is
 viewed as a means to ensure that
 WQBELs are achieved. The effects of the
 PMP may be to reduce all levels of the
 substances hi the internal streams to
 non-detectable levels, but this is not
 equivalent to a zero discharge
 requirement. A PMP-type requirement is
 consistent with the Guidance found in
 section 5.7.3  of the TSD and in the May
 21,1990 Strategy.             .
    A permittee may consider cost-
 effectiveness hi developing a pollutant
 minimization program. In considering
  alternative elements of a pollution
  minimization program, the permittee
  may choose to consider the cost-
  effectiveness of each element. EPA
  solicits comments on whether the final
  Guidance should allow a facility to
  consider cost-effectiveness in
  developing a pollutant minimization
  program, and if so, what data the facility
  should consider in developing the
                                                              program.
                                                                Procedure 8.E specifies that if all
                                                              samples of the effluent are below the
                                                              CEL for the maximum daily limits, all
                                                              required averages are below the CEL for
                                                              the average weekly and monthly limits,
                                                              and the conditions of the PMP are met,
                                                              then the permittee will be deemed in

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                 Federal Regisit0r / VoL 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
                                                                    20979
. compliance with the permit. If one of
 tie conditions of the,PMP is not met,
 the permittee is in violation: of the .   ,--
 permit conditions. If an effluent sample
 is above the CEL for tie maximum daily
 limit and the average of samples are
. above the CEL for weekly and monthly
 average limits, then the conditions of
 procedure 8.G are invoked.  '•",'•
   Special requirements are  specified kt
 procedure 8.F of the Implementation
 Procedures for the cases where BCCs are
 limited below the quantification level.
 The special requirements generate
 additionalinformation with which to
 use in judging whether or not the,
 discharge is contributing enough of a
;s pollutant to cause bioaccumulation of
 the pollutant In fish tissue. The
 additional provisions require the
 permittee to determine if the pollutant
 from the effluent is bioconcentrating or
 bioaccumulating hi fish tissue. This
 condition is also consistent with the
 section 5.7.3 of the TSD and May 21,
 1990 Strategy. Approaches to determine
 whether a pollutant is bioconcentrating
 or bioaccumulating are specified in the
 proposed Great Lakes Guidance. EPA ,
 believes that there are many acceptable
 approaches to performing fish
 monitoring or effluent bioconcentration
 studies. Examples,of acceptable
 methods are: "U.S. EPA Interim
 Methods for the  Sampling and Analysis
 of Priority Pollutants in Sediments and
 Fish Tissue" {U.S. EPA, 1982), and
 "Draft Assessment and Control of
 Bioconcentratable Contaminants ;in
 Surface Water" (U.S. EPA, March 1991),
 which are available in the             '
 administrative record for this
 proceeding. The regulatory  authority
 may require that other approaches be
 used; If the results of the studies show
 that the effluent  is bioconcentrating or
 bioaccumulating at unacceptable levels,
 the control strategy, as part  of the PMP,
 must be reviewed and modified
 appropriately.                :
   The proposed  Great Lakes Guidance
 provides two approaches for
 .determining unacceptable tissue levels.
 One approach is" to estimate
! concentrations of a pollutant in
 receiving waters based upon the levels
 of the pollutant in the fish tissues
 calculated using the criteria equations
 and assumed inputs. If this
 concentration is above the water quality
 standards, then ways to modify the
 control strategy are warranted and
 necessary. A complementary approach
 is to compare the level of the pollutant
 in the monitored fish tissue to the level
 used to develop  the water quality
 criteria for that pollutant.'In both cases,
 the variability of the bioconcentration
 test an^ the calculated dilution of the
 effluent flow in the receiving water
 must be considered. EPA welcomes
 comments on these and differing
 approaches to defining unacceptable
 tissue levels and the extent to which
 "unacceptable tissue levels" should be
 defined in the text of the procedure..
  In addition,.the permitting authority "
 may impose other conditions, as
 provided in procedure 8.H, upon      .
 permittees on a case-by-case basis to
 require: Derivation and/or use of new
 analytical equipment and/or methods;
 use of internal waste stream monitoring
 and mass balance modeling techniques;
 and use of any other innovative
 monitoring techniques and results with
 which to assess compliance with the
 WQBEL. This section acknowledges the
 authority of a State under section 510 of
 the CWA to require more stringent
 provisions.       	       ..    :   ;

 3. State and Tribal Adoption
 Requirements
  In order to  achieve consistent
 application of this procedure, the Great
 Lakes State or Tribe must adopt a
 procedure that requires: The actual
 WQBEL derived from the WQS to be
 imposed in the effluent limitations'
 table of the pennit; the minimum level
 as the CEL of preference, when
 available; PMPs to he specified in all
 permits so that internal sources of the
 pollutant are being reduced; when the
 WQBEL is for a BCC, studies to
 demonstrate whether bioaccumulation
 or bioconcentration is occurring in fish,
 tissue due to  the discharge be
 submitted, and the results used to    .
 modify the PMP, as necessary; and one
 quantified sample of the pollutantfat or
 above the CEL) to be considered as an
 exceedance of the maximum daily limit
 for that reporting period, and any
 average above the CEL to be considered ;
 as an exceedance of the average limit for
 that reporting period. The text does not
 have to be adopted verbatim. However,
 the permitting authority must show that
 the above conditions are met.

 4. Options Considered
  During the Great Lakes Water Quality
 Initiative process, it was suggested that
 numerous violations of the WQBEL will
 occur although actual effluent
 concentrations may be below the CEL,
 due to .analytical uncertainty
 surrounding measurements at the CEL.
 Suggestions were made that other
 measurement levels, like the MDL or the
 PQL, would be more appropriate. EPA
 does not believe that the MDL or PQL
 would be more appropriate, because: the
 MDL is not a measure of.quantification,
 and the PQL  (which is typically set as
. a multiple 5 or 10 times the MDL) is not
 as precise as the ML. EPA invites
 specific comments if whether other
 levels would provide a more valid :
 determination of the ability of an
 analytical method to quantify a
 pollutant concentration and the     ,-
 published scientific data supporting
 such levels.         '
   Alternate text was discussed by the
 Initiative Committees during
 . development of this proposed provision.
 This text was "Include permit language .
 clarifying that any discharge of the
 pollutant at or above the detection level
 is an exceedance requiring further    r'
 action." This text incorporates two
 concepts:  t    .          -          .
   a. Averaging effluent samples for a
 particular reporting period would not be
 allowed; and             .       :...  .
   b. Permitting authorities would have
 the authority to require further action to
 confirm exceedances of WQBELs. The
 following text will discuss the
 Technical Work Group's reasons and
 other options considered.
   The Initiative Committees considered
 many approaches for assessing values of
 pollutant measurements below the -  ,
 quantification level. The original
 Technical Work Group proposal of.
 prohibiting the averaging of effluent
 samples was chosen as a simple,
 conservative approach to assessing
 compliance. As mentioned previously,
 when a WQBEL is below a detection or
• quantification level, and the effluent
 data set includes both quantifiable and
 non-quantifiable samples, the
 compliance determination is not simple.
 The Technical Work Group believed
 that when a pollutant is detected or
 quantified in compliance monitoring,  .
 then it is known that the pollutant is
 present in the discharge at levels above
 the magnitude of the WQBEL, Limited
 'agreement was reached on appropriate
 means for averaging detected/quantified
 values with non-detected/non-
 quantified values.,
   EPA did not believe that the
 conservative approach would     • ,  ,
 necessarily be appropriate in all cases,
 and therefore revised paragraph C of
 procedure 8 of appendix F as it is
 published today. Procedure 8.C states
 that an exceedance of an average limits
 occurs with respect to a reporting period
 when the average of a pollutant is above7
 the CEL during  that averaging period.  '
 The specific means for calculating the
 average is left to the discretion of the
 permitting authority.
   Several other approaches for assessing
 values of pollutant measurements below
 the quantification level were discussed
 during the Initiative Cpmmittees' Work-
_ Group meetings.and during the drafting "
 of this proposal package. An alternative ;

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20980
Federal Register / Vol. 58, No. 72  /  Friday,  April 16,  1993 / Proposed Rules
approach would be to specify the means
fot averaging by assigning a value
somewhere in the range from zero to the
CEL, to the non-quantified samples. A
value which assigns an equal amount of
risk to the environment and to the
discharger is 50 percent of the CEL or
the WQBEL, whichever is less. Another
approach would be to assign a zero
value to all samples below the
minimum value, average all of the
samples and then compare the result to
the WQBEL (even if less than the
minimum level). If this approach was
selected in the final Guidance, this
would require changing the definition of
the CEL to equal the WQBEL for both
weekly and monthly average effluent
limitation. EPA invites comments on
those alternative approaches, any
combination of approaches, or other
approaches to address this issue.
  Additional methods for evaluating
compliance with mixed data sets of
quantified and non-quantified samples
are as follows: First, compliance could
be assessed by calculating the
percentage of quantified samples from
the total number of samples, and
declaring noncomplianoe when the
percentage of quantified samples is
equal to or greater than 50 percent.
Another option would be to substitute
lha WQBEL value for the values which
aro below the CEL, average all values,
and then compare the results to the CEL.
If the results are below the CEL, then
compliance is declared. If the results are
at or above the CEL, then
noncompliance is declared. Neither of
these approaches were considered by
the Technical Work Group, however.
EPA believes that these proposals bear
some merit and welcomes comments on
these and other methods for averaging
effluent samples or for accounting for
non-quantified samples in determining
compliance with effluent limits which
are below  the level of quantification.
  The second concept of the Initiative
Committees' version of paragraph C of
procedure 8 was addressed because the
Committees believed that this text
would reduce the effects of potential
analytical uncertainty at the detection
level.  Comments received during the
drafting process expressed that when
the concentration is close to the DL, the
uncertainty regarding the assessment of
detection and/or quantification appears
to be higher. Chemists typically use
some degree of judgment in assessing
tho amount of a pollutant during the
process of analysis. Judgment is used to
quantify the amount of a pollutant that
is present in a sample, no matter the
definition of the detection level. This
judgment may, hi some cases, result in
false positives, i.e., the analysis
                      indicating the presence of a pollutant
                      when the pollutant actually is not
                      present.
                        The Initiative Committees believed
                      that for analytical results close to the
                      detection level, since there may be.
                      uncertainty regarding its validity, the
                      regulatory authority should be allowed
                      to reserve judgement regarding the
                      compliance status of that sample. Permit
                      authority would require further action,
                      for example, increased monitoring of the
                      pollutant for an extended period of
                      time, of the permittee before a final
                      compliance judgement would be made.
                      It was envisioned that once the
                      additional monitoring work was
                      provided or other appropriate actions
                      w.ere completed, an assessment of
                      whether the original point violated the
                      limit would be made by the regulatory
                      authority. EPA did not include this text
                      in proposed procedure 8 of appendix F
                      because EPA maintains that any
                      exceedance of a permit limit including
                      a WQBEL is a violation as defined by
                      section 309 of the CWA. Of course,
                      dischargers always have the opportunity
                      to demonstrate that any measurement is
                      inaccurate or invalid. In addition,
                      because the CEL of preference is the ML,
                      EPA believes that the analytical
                      uncertainty of false detects is less of a
                      concern than if a true detection level
                      were used as the CEL. EPA, however,
                      welcomes comments on all aspects of
                      this issue, including the appropriateness
                      of the original text prepared by the .
                      Initiative Committees.

                      I. Compliance Schedules
                        A compliance schedule in this context
                      refers to an enforceable sequence of
                      interim requirements leading to ultimate
                      compliance with the requirements of the
                      Clean Water Act. Procedure 9 of the
                      implementation procedures allows
                      schedules for compliance in peftnits
                      with WQBELs hi specified
                      circumstances. However, the permitting
                      authority has discretion not to include
                      compliance schedule provisions.
                        The circumstances under which a
                      compliance schedule may be provided
                      depend on whether a new discharger, an
                      increasing discharger, or an existing
                      discharger i& involved. For purposes of
                      procedure 9, a "new discharger" is
                      defined as any facility which
                      commences discharging on or after the
                      effective date of this regulation._An
                      "increasing discharger" is defined as an
                      existing discharger which on or after the
                      effective date of this regulation has an
                      increase in flow, concentration or
                      loading from that which was previously
                      specified in its permit. An "existing
                      discharger" is defined as any facility
                      which commenced discharging prior to
the effective date of this regulation,
provided it is not an increasing
discharger.          •
  Schedules of compliance are not
available for new or increasing
dischargers. Procedure 9.A provides that
when a permit is issued, reissued, or
modified to contain an effluent
limitation derived from Tier I criteria,
Tier II values, whole effluent toxicity
criteria, or narrative criteria for a new or
increasing discharger, the permittee
shall comply with the new effluent
limitations upon the commencement of
the new or increased discharge.
  The Initiative Committees believed
that schedules of compliance  for .
WQBELs should not be available for
new or increased dischargers because
their changed operations would occur
on or after the effective date of this
regulation; and hence after they are. on
notice of the water quality standards
which are required under the  Great  .
Lakes Initiative. The Initiative
Committees believed that it is
reasonable to expect immediate
compliance with effluent limits derived
from the Tier I and Tier II
methodologies in these circumstances as
soon as the new or increased discharges
commence and that this action would
further the goal of reducing discharges
to the Great Lakes System as soon as
possible.  •        -
  Procedure 9.B addresses the
circumstances under which compliance
schedules would be appropriate when
new or more restrictive limitations are
established in permits for existing
dischargers. This section provides that
when a permit for an existing  discharger
is modified or reissued to contain more
stringent effluent limitations due to Tier
I criteria, Tier II values, whole effluent
toxicity criteria, or narrative criteria, the
permit may allow a reasonable time, not
to exceed the term of the permit or three
years, whichever is less, to comply with
the new limitations. As a matter of
practice, EPA has generally supported  •
and allowed a three year maximum on
compliance schedules in discussions'
with States, if this does not extend past
the term of the permit. This time frame
is also consistent with that provided
pursuant tb section 304(1) for Individual
Control Strategies. During this period,
the permittees must comply with either
the terms of the previous permit or any
more stringent interim limitations and
other requirements specified in the
schedule of compliance.
  If a permit establishes a schedule of
compliance which exceeds one year
from the date of the permit issuance, the
schedule shall set forth interim
requirements and the dates for their,
achievement. Interim requirements may;

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                 Federal  Register / Vol. 58, No. 72 1 Friday,-April 16, 1993 / Proposed Rules          20981
 be construction milestones; they need,
 not necessarily be interim effluent
 limitations. The time between interim
" dates for compliance schedules under
 this provision may not exceed one year.
 If the time necessary for completion of
 any "interim requirement is more than
 one year and is not readily divisible into
 stages for completion* the permit shall
 specify interim dates for the submission
 of progress reports toward, completion of
 the interim requirements and indicate a ~
 projected completion date. Specification
 of interim compliance dates is cumrently
 required in all NPDES permits issued by
 EPA or authorized States. (40 CFR
 122.47,123.25).
 •  Procedure 9.C provides the discretion -
 for the permitting-authority to provide
 additional flexibility for complying with
 Tier II limitations in modified or
 reissued permits for existing
 dischargers, to accommodate the
 situation where additional studies may
 provide the basis for developing a Tier
 I criteria or modifying a Tier II value.
 Under these circumstances, the permit
- may provide up to two years from
 permit issuance for completion of.
 specified studies (this would occur
 during the up to three-year period for
 compliance provided under procedure
 9.B}. If such studies are completed in a
 timely fashion, and new criteria or
 values are developed, the permit may be
 reopened and modified to reflect the
 new Tier I criteria or revised Tier jl
 value. As long as the specified studies
 are completed, whether or not they turn
 out to justify new criteria or values, the
 permittee may have a reasonable time,
 within the remaining term of the permit;
 to comply with the limit(s) in question.
 Any additional time which will be
 granted to a permittee should be ~ ,
 appropriate for the activities which the
 permittee will have to undergo in order
 to achieve compliance with the revised
 WQBEL, or, if hot revised, the originally
 established WQBEL. The reasonable
 time will be determined by a permitting
 authority on a permit-by-permit basis.
 For example, if the WQBEL is revised to
 become less stringent and minor process
 changes are necessary to achieve
 compliance, then no additional time
• may be necessary or additional time  ••
 may not be more than six months. On
 the other hand, a facility may need to
 add on additional treatment involving
 construction. In this case, two years may
 be appropriate in order for the facility
 to achieve compliance. In any case, due
 to the.fact that the permits must be
 modified in order to incorporate 'the
 results of the studies the public would
 have an opportunity to comment upon
 the appropriateness of any extension of
the compliance schedule as well as .the
modified WQBEL. In addition, EPA has
review authority to ensure -that the
additional time period is "reasonable"
and not based upon a" standard practice
of granting additional time which
equates to the remaining term of the
permit. If the studies are not completed
in a timely fashion, the permittee must
comply under the original not-to-exceed
three-year schedule. In addition, the
permittee may not presume that a
revised WQBEL has been established or
additional time for compliance has been
provided, until the permitting authority
has modified the facility's NPDES
permit to reflect these changes.
  EPA has long had a practice of
considering reasonable schedules of
compliance in permits based oh newly
adopted or revised water quality
standards promulgated after July 1,
1977. Recent orders in In Re Star-Kist
Caribe, lac,, NPDES Appeal No. 88-5,
have emphasized the need for States
and Tribes to provide specific        -
authorization for such schedules. In
light of the deadline in'section
301(b)(i)(C) of the Clean Water Apt,
which requires that permits assure
compliance with applicable water
quality standards, these Orders state
that schedules of compliance for
limitatipns based on post-July 1,1977,
standards are prohibited unless the
standards themselves or State or Tribal
implementing regulations expressly
authorize such schedules.
 - Because the implementation
procedures proposed today are expected
to be adopted by States and Tribes as
part of their standards programs or
implementation regulations for the ,
Great Lakes System, such adoption will
allow the proposed use of schedules of
compliance in NPDES permits in those
States and Tribal lands. Of course, no
State or Tribe is obligated to include a
schedule of compliance in a particular
permit under the proposed procedures
and States or Tribes can be more
stringent by not providing for
compliance schedules. Because the
pollutants in Table 5 are not addressed
by procedure 9, any States or Tribes
wishing to provide schedules of-
compliance for limits based on .criteria
. for Table 5 pollutants will heed to do so
separately.   ,   .  '      •
  In addition, facilities being regulated
under section 304(1) of the Clean Water
Act (CWA) are not exempt from their
 304(1) compliance requirements. For
example, if facilities are located in one
 of the Great Lakes States or on Tribal
land but were listed on a 304(1) list,
their 304(1) compliance-requirements
 cannot be extended by any compliance
 schedules adopted pursuant to the    <
 proposed Great Lakes .Water Quality
 Initiative Guidance.
   Another issue which was raised
 during the development process of
 procedure 9 is whether the anti-    .-:'.-
 backsliding requirements of section .
 402(6) of the CWA would apply to
 limits which have a scheduled date of
 compliance beyond the effective date of
 the permit. The anti-backsliding
 provision of the CWA prohibits
 reissuing or modifying an NPDES
 permit to include less stringent effluent
 limitations unless certain tests are met
 The proposed Guidance provides that
 anti-backsliding restrictions do not
 apply to revisions to effluent limitations
 made before the scheduled date of
 compliance for those limitations.
 Additional discussion of anti-
 backsliding requirements is contained
 in section II.D of today's preamble^
   EPA would like to receive comments
 from the public regarding the three
 approaches outlined concerning
 compliance by dischargers .with the Tier
 I criteria and Tier ri values presented in
 Procedure 9.A through C, inclusive, of
 appendix F. For example, do the
 timeframes detailed hi Procedure 9.B
 and ,C provide sufficient time both to .
 comply generally, and, in particular, to
 adequately complete the necessary
 studies referred to in these sections? In
 addition, EPA specifically invites
 comment .oh whether it is appropriate to
 provide for extension of a compliance   ,
 schedule where a permittee conducts a
 study'as to the appropriateness of a Tier
 JI limitation. EPA has traditionally taken
 the position that a. facility can challenge,
 study or litigate both technology-based
 and water quality-based terms and
 conditions of a permit on its own time,
 but that these activities do not extend
 otherwise applicable compliance dates.
 EPA invites comment on whether the
 approaches described in Procedure 9.C
 are appropriate. EPA would also
 appreciate comment from the public as
 to whether the time permitted for
 compliance under the Guidance is
 appropriate,  i.e., if no studies are done,
 up to three years; or, if the studies are
 'done, whether or not they justify less
 stringent limits, then up to five years. In
 addition, another topic for consideration
 is what factors; or procedures should be
 used by the permitting authority to
 assess what would be the reasonable
 amount of any of the compliance
 period(s) or interim schedule(s); EPA •
• also invites comments on the proposed
 text precluding compliance schedules
 for new or increasing dischargers; and
 the proposed definitions of new,
 existing, and increasing dischargers  .
 applicable to compliance schedules.

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Federal  Register  / Vol.  58, No. 72 / Friday, April 16, 1993 / Proposed Rules
IX. Executive Order 12291
A. Introduction and Rationale for
Estimating Costs and Benefits for the
Great Lakes Water Quality Guidance
  Executive Order 12291 requires EPA
to prepare a Regulatory Impact Analysis
(RlA) for major regulations, which, are
defined by certain levels of costs and
impacts. For example, the Executive
Order specifies that a regulation
imposing an annual cost and benefit to
the economy of $100 million or more is
considered major under the terms of the
Order. According to the Executive
Order, the Regulatory Impact Analysis
should contain descriptions of both
potential costs and benefits.
  Under the Clean Water Act, costs are
not directly relevant in establishing
water quality criteria. However, if a
range of scientifically defensible criteria
that are protective of the designated use
in question are identified, costs may be
considered in selecting a particular
criterion within that range. In addition,
under EPA's regulations, certain costs
can be considered in the context of use
attainability analyses, variances, and
antldegradation. Moreover, as a matter
of good government, EPA likes to be
aware of costs and benefits of its
proposals. Accordingly, the question of
costs and benefits has been an integral
part of the deliberations involving the
States and EPA in the development of
tho Great Lakes Water Quality Guidance
(GLWQG). In addition to the
requirements set forth in Executive
Order 12291, the States of Ohio,
Michigan and Wisconsin have
specifically requested that EPA examine
the costs and benefits of the Initiative.
Some members of the Public
Participation Group also expressed a
concern during the Steering Committee
meetings that the posts to point sources
could be sizeable. Other public
comments expressed concern about
potential benefits. During the Steering
Committee deliberations in November
and December 1991, EPA expressly
committed to estimate various costs and
benefits that could accrue from the
proposed GLWQG.
  Toe following discussion describes
how EPA has estimated both costs and
benefits associated with the proposed
Guidance, Aggregate costs are estimated
for all direct and indirect dischargers in
the Great Lakes System. Benefits and
costs are assessed for direct industrial
and municipal dischargers at three sites
in the System, The results of these case
studies are not appropriate to use in
evaluating the aggregate benefits and
costs of th« proposed GLWQG. EPA is
requesting comments on the
methodologies used to estimate both
                      costs and benefits. Commenters should
                      provide data to support their comments.
                      EPA will evaluate all comments and
                      supporting data received through the
                      public comment process. As noted
                      above, E.0.12291 requires EPA to
                      prepare a Regulatory Impact Analysis
                      for proposed and final major rules. The
                      studies described below have been
                      submitted to Office of Management and
                      Budget (OMB) to fulfill this
                      requirement. These cost and benefit
                      studies are summarized below. The
                      documents underlying this summary are
                      available in the administrative record
                      for this rulemaking.

                      B. Overview of Projected Costs
                      Attributable to the Great Lakes Water
                      Quality Guidance
                      1. Introduction
                       EPA acknowledges that some point
                      source dischargers, including cities and
                      towns, will incur costs in complying
                      with the requirements of the GLWQG
                      after the proposed Guidance is
                      promulgated and Great Lakes States and
                      Tribes have adopted it. These
                      requirements, when added to current
                      State or Tribe water quality standards
                      and permitting regulations, could
                      require additional construction of
                      treatment facilities and/or process
                      changes, including pollution prevention
                      and waste minimization programs. The
                      magnitude of these incremental costs
                      would depend on the types of treatment
                      or other pollution control installed, the
                      number and type of pollutants treated,
                      and implementation of such pollutant
                      management programs as pollution
                      prevention, community and facility
                      waste minimization programs, and best
                      management practices in a variety of
                      areas.
                       Similar sources of costs and the
                      variables affecting costs would also
                      apply to indirect industrial dischargers
                      to the extent that the industrial
                      discharger is a source of pollutants
                      discharged to a Publicly  Owned
                      Treatment Works (POTW). In addition,
                      the POTW may incur costs for
                      expansion, operational changes,
                      additional treatment, modified  .
                      pretreatment programs and increased
                      operator training.
                       Monitoring programs are another
                      source of potential incremental costs to
                      dischargers and regulatory authorities.
                      Monitoring programs to generate
                      information on the existing quality of
                      water and the types and amounts of
                      pollutants being discharged are
                      potentially affected by the imposition of
                      the proposed GLWQG criteria. The
                      addition of criteria and values for toxic
                      pollutants as a result of States' or Tribes'
use of the Tier I and Tier n
methodologies of the GLWQG can lead
to additional compliance monitoring by
facilities and regulatory authorities as
well as additional ambient water quality
assessment costs. However, this
monitoring is not solely triggered by the
adoption of GLWQG criteria or
methodologies, but is contingent on the
States' implementation actions in
discharger permits add other control
mechanisms. Additionally, it is possible
that pollution prevention type measures
(source reduction and increased
recycling) would enable dischargers to
reduce their discharges, eliminate
pollutants, and therefore decrease
monitoring.
  Nonpoint sources of pollutants
covered by the proposed Guidance may
also incur increased costs to the extent
that best management practices need to
be modified to comply with the revised
water quality standards resulting from
the aquatic, human health and wildlife
criteria adopted under  the proposed
Guidance. However, there is no Federal
permit program requiring control of
nonpoint sources comparable to that for
point sources. Some Great Lakes States
have developed regulatory programs
under State law that will require some
nonpoint source dischargers to comply
with the numeric criteria and values
proposed hi the proposed Guidance. As
these State Nonpoint Source
Management Plans are  implemented in
the Great Lakes, best management
practices will begin to reduce discharges
from nonpoint sources  within an
increasing number of drainage basins
and will require application  of the
antidegradation provisions specified in
the final Guidance. These costs are not
directly attributable to  this proposal.

2. Methodology for Estimating Costs to
Point Sources Attributable to the
Proposed Great Lakes Water Quality
Guidance

  EPA decided to focus its initial
assessment on categories of industries
and municipalities that would be both '
likely to be affected by the proposed
Guidance and serve as  the bases for a
reasonable extrapolation of costs to the
universe of Great Lakes System
dischargers. Based on a review of lists
that States generated and of permits
issued since March 1991, EPA assumed
that the largest aggregate impact would
most likely be on the major direct
dischargers. EPA defines major
municipal dischargers as those that
serve over 20,000 persons and have
flows in excess of 1,000,000 gallons per
day; there are 316 major municipal
dischargers in the System.,

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                 Federal Register / Vol.  58,  No. 72  / Friday, April  16,  1993; /Proposed Rules
                                                                      20983
   In defining major industrial  ••/.
 dischargers, EPA considers several
 factors, including the amount of toxic ..
 pollutants in the discharge as Well as
 volume discharged; there are 272 major
 industrial dischargers in the Great Lakes
 System, Thus, the GLWQG could affect
 a total of 588 major industrial and
 municipal dischargers.
   EPA also distinguishes a second.
 group of dischargers, minor dischargers,
 that fall outside of these definitions;
 Minor facilities may discharge
 contaminated process wastes that could
 have a significant toxic component, or
 have other characteristics that would be
 the focus of the GLWQI. There are 3,207
 such minor dischargers located.in the
 Great Lakes basin.  '.
'.,.  These are all the facilities currently
 permitted by either EPA or the eight
 Great Lakes,States authorized to
 administer the National Pollutant
 Discharge Elimination System (NPDES)
 program—588 majors arid 3,207 minors,
 for a total of 3,795 permittees.
   The .subset of facilities used in the
 cost study was selected primarily from
 .the universe of major facilities to enable
 EPA to reasonablyextrapolate the most
 significant costs in the Great Lakes basin
 as a whole. After reviewing a variety of
 lists of facilities—permits issued since
 March 1991, those recommended by
 each State and the  lists, of major and
 minor facilities—EPA randomly
 selected 59 facilities (50 major arid nine
 minor). These facilities represented a
 limited, but practical, number of:.
 dischargers for estimating costs and for
 extrapolating these costs to estimate
 total costs for all direct dischargers in
 the'Great Lakes basin. EPA conducted a
 detailed review of these facilities that it
 considered representative of all tjfpes
 and sizes of facilities iri the Great Lakes,
 basin.      ,   '     ' .  '".-'.''
 •  Due to differences in the universe of
 major and minor dischargers, two
 separate methodologies were used to
 select representative major and minor
 facilities. For major dischargers, all   •
 randomly selected facilities were
 grouped into 10 categories .which
 included nine primary industrial groups
 and a category for municipalities, also
 known as Publicly Owned Treatment
 Works or POTWs. The nine industrial
 categories are: Mining, Food'and Food
 Products, Pulp and Paper, Inorganic
 Chemical Manufacturing, Organic
 Chemical Manufacturing/Petroleum
 Refining, Metals Manufacturing,-
 Electroplating/Metal Fabrication, Steam
 Electric Power Plants, and
 Miscellaneous facilities.
    This initial categorization of major
 facilities was then stratified by flow
 within each, category. While each
 industrial category was divided into two
 or three flow strata, these distinctions
 were tailored to each category. The
 differing flow distinctions were used to
 decrease reliance on estimating cost
 strictly based on flow rates and to
 decrease the skewing effect on the
 analysis of greatly varying flow rates
 between categories. EPA feels that flow
 distinctions chosen independently for
 each category represent a natural
 clustering of the flow rate data that put
 roughly equal numbers of facilities into
 each flow stratum. These distinctive
 flow strata were designed to address the.
 following objectives:
   a. Ensure that the strata allows for
 random selection and costing of at least •.
 two sites from each flow strata arid
 category of discharge;   :
   b. Ensure a balance in the number of
 sites Within each flow strata to provide
 roughly proportional representation iri
 the sample of sites with varying flows;
   c. Ensure enough flow divisions so
 that reported flows differ as little as
 possible within any single flow strata;
 and            •-.'.-.'
   d. Ensure allocation of more sites to
 discharger categories with a greater
 number of facilities to allow more flow
 'strata to be formed within these
 categories.     -.--.    ,  .'.-'•-      - .
   These objectives allow for greater
• precision in estimating cost and allow
 for more efficient extrapolation of the
 cost estimates to the entire System^
 Since POTWs represented the largest
 category of major.dischargers, more
 POTWs were selected  from that group to
 ensure a more statistically reliable
 representation.
   Further, a number of minor facilities
 were evaluated even though they are not
 expected to discharge  a large number or
 quantity of toxic pollutants as compared
" to major dischargers. Because little or no
 compliance costs are anticipated by
 minor dischargers, EPA analyzed a     .',
 limited number of randomly s'elected .
 minors to verify that assumption.
 Furthermore, because  EPA has. little or
 no flow'data:for minor dischargers, it is
 not possible to adopt a flow-stratified
 analytical plan  similar to that for
 majors. For each facility under review,
 the most current, necessary NPDES
 permit data and background information
 was collected to: calculate the limits
 •;that would be anticipated from current
 regulatory requirements (if hot
 incorporated into the current permit);
 and develop additional permit
 requirements based on the proposed '
 Guidance. EPA gathered information
 from State and Regional files that
 included permit applications, permit
 fact sheets or rationale, inspection
 reports, discharge monitoring reports,
. pretreatment reports, short-term waste
 characterization studies,'receiving '-•'-»
 stream low-flow scenarios and total    "•
 maximum daily loads/waste .load
 allocation reports, and,any other readily
 available information. In most instances,
 State permit writers were directly
 contacted to: verify collected
 information; assist iri the interpretation
 of previous permit limit calculations;
 and assist in interpreting water quality
 standards and implementation
 procedures adopted in the past two
 years to comply with section
 303(c)(2)(B),of the Clean Water Act.
 Permit writers and water quality experts
 from the following organizations were
 consulted: Minnesota Pollution Control
 Agency, the New York State Department
 of Environmental Conservation, the
 Michigan Department of Natural
.Resources, the Ohio Environmental
 Protection Agency, the Wisconsin
 Department of Natural Resources, the
 Indiana Department of Environmental
 Management, the Pennsylvania
 Department of Erivironriiental
 Resources, the Indiana United States
 Geological Survey, the Michigan United
 States Geological Survey, the Minnesota
 United States Geological Survey and
 EPA Regions 2, 3, and 5.
   For each facility on the review list,
 new permit limits and additional permit
 conditions were developed based on the
 implementation procedures in the .
 proposed Guidance. The proposed  ,
'criteria would require some permitted
-facilities to meet new limits and adopt
 other permit conditions such as whole
 effluent toxicity testing and additional
 monitoring. The limits developed for  -
 estimating costs were calculated for
 those 34 pollutants for which numeric
 Tier I and Tier 31 criteria and values
 have been proposed. For a given facility,
 only those pollutants that were detected
 in the discharge, or expected to be    '•
- present in the discharge but were
 reported as not detected because less
 sensitive EPA approved analytical
 methods were used, were evaluated.  ••
 The need for whole effluent toxicity
 limits and monitoring was also
 evaluated in accordance with this
 proposal. For each facility, limits were
 calculated for the outfalls that contain
 or may contain observed or anticipated
 loadings for the pollutants of concern.
   If the existing effluent limits for some
 of the permitted facilities selected did
 not reflect current State water quality
 standards,and implementation policies,
 these differences needed to be
 accounted for prior to estimating the  '.'
 incremental difference between the
 current requirements arid the GLWQG-
 based effluent limits. Therefore, prior to
 comparing the limits and conditions   '••

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20984         Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993 /Proposed Rules
that are based on the GLWQG, EPA
recalculated the permit limits to reflect
th® newly-revised State standards and
requirements that are based on the
adoption of toxic water quality
standards under section 303 (c)(2)(B)
(referred to here as baseline
requirements). This approach should
reflect more accurately differences
between existing effluent limits based
on newly-revised State requirements
and procedures required in the
Initiative, In other words, for older
permits, two sets of permit limits were
calculated—a first set of permit limits to
reflect the current, but not fiilly
implemented, regulatory baseline
requirements for facilities, and a second
set of limits to determine what the
GLWQG will add to these baseline
requirements.
  In determining specific requirements
imposed by the GLWQG, it was
necessary to calculate wasteload
allocations  for discharges to both the
open waters of the Great Lakes and their
tributaries,  In doing so, EPA assumed
that the data necessary to calculate total
maximum daily loads (TMDLs) would
not ba available for specific pollutants
on specific  receiving waters. Therefore,
EPA calculated site-specific wasteload
allocations  for each discharger using
equations set forth in the draft
implementation procedures. Due to the
general lack of background
concentration data for receiving waters,
two different Waste Load Allocations
(WLAs) were calculated for each
facility. The first WLA assumed zero
background in the absence  of
background data  (WLA #1). The second
WLA assumed a value for background
concentrations where no background
data existed (WLA #2). The assumed
background value was based on the
average proportion of the actual
measurable background data from seven
facilities to the GLWQG criteria and
values. The assumed background values
wore approximately 50 percent of the
GLWQG water quality criteria and
values.
  The proposed implementation
procedures do not contain specific
procedures for converting WLAs into
Water Quality Based Effluent Limits
(WQBELs).  In this study, the dally
maximum WQBEL for a pollutant was
sot equal to tha WLA calculated to
protect the acute aquatic life criterion
(i.e., the Final Acute Value). Monthly
average WQBELs were set equal to the
most stringent WLA calculated to
protect chronic aquatic life, wildlife, or
human health criteria. There were
several instances when negative WLAs
were calculated for a pollutant. This
occurred duo to high background
concentrations of pollutants reported for
a receiving water. Since the
implementation procedures do not
contain procedures for dealing with
negative WLAs, two different sets of
WQBELs were calculated for each
facility, which resulted in different
compliance cost scenarios. In cases
where negative WLAs were calculated
using WLA. #1, the WQBEL was set
equal to the background concentration
(WQBEL #1); when negative WLAs were
calculated using WLA #2, then the
WQBEL was set equal to the most
stringent water quality criteria (WQBEL
#2).                          .
  The specific assumptions and
protocols used in making these
calculations are set forth in the
Assessment of Compliance Costs
Resulting from Implementation of die
Proposed Great Lakes Water Quality
Guidance. This document is available in
the administrative record for this
rulemaking. EPA solicits any comments
on the methodologies used to estimate
costs, including the underlying
assumptions and the supporting data
used. Commenters should provide data
supporting their comments during the
public comment period to enable EPA to
conduct a thorough evaluation.

3. Determinations of Costs
  The three main cost categories
assessed are:
  a. Treatment costs associated with
installation, modification or expansion
of treatment systems;
  b. Monitoring costs for facilities for
the purpose of tracking the presence of
toxic pollutants thought or known to be
in a discharge, but at levels too low to
justify direct regulation through effluent
limits; and,
  c. Costs related to facility or system
management, such as enhancement of
pretreatment programs, special studies,
toxicity reduction programs, pollution
prevention programs and waste
minimization.
  If the GLWQG-based effluent limits
were more stringent than the existing
effluent limits either in current permits
or calculated against current regulatory
requirements, then EPA developed costs
to comply with the more stringent
effluent limits on a facility-by-facility
basis. In developing these cost estimates
several factors were taken into
consideration, including:
  i. Ability of the existing treatment
system and process to treat any or all "of
the pollutants for which GLWQG limits
have been calculated;
  ii. Whether or not the incremental
amount of a pollutant or pollutants to be
evaluated were below treatable levels;
  iii. Degree to which influent
concentrations of pollutants to be
treated are present at levels amenable to
existing treatment, or would require
additional treatment;
  iv. Opportunities available for
retrofitting existing treatment systems in
terms of add-ons, process
enhancements, etc.;
  v. Opportunities for source reductioi.
through pretreatment program •
modifications, pollution prevention,
waste minimization and best
management practices (of particular
importance for municipalities');
  vi. Treatment options and costs
identified in EPA development
documents associated with policy,
guidance and effluent guideline
regulation.development; and,
  vii. Costs for additional monitoring,
implementation of special conditions -
such as toxic reduction evaluations and
special studies to verify presence of
suspected toxicants.
  These factors were applied to each of
the facilities reviewed. Each review is
documented in a facility-specific report
.that outlines the application of the
methodology, including the findings
and conclusions. These individual,
facility-specific review reports and the'
report collating the information from all
of the reviews are, available for review
in the administrative record. EPA
requests public comment on this
methodology, the facility reviews and
the tentative conclusions set forth
below.
4. Estimated Facility Compliance Costs
  a. Basic Considerations. Following the
identification of pollutants of concern
for each facility and the development of
water quality-based effluent limits based
upon the proposed Guidance criteria
and implementation procedures, the
final step involved an estimate  of costs
to the particular facilities reviewed. An
engineering analysis for each facility in
the sample was conducted to develop
potential compliance options. This
included a review of existing trea*	
systems at the facility, and an
assessment of the need to add new
treatment or supplement existing
treatment capabilities. Having defined
the control options, the compliance
costs to facilities implementing each
option were estimated. Compliance
costs generally included treatment costs,
monitoring and operations and
maintenance costs, and a variety of one-
time costs of limited durations (e.g.,
waste minimization audits of
production processes).
  In performing this analysis, EPA used
its own development documents for
effluent guidelines and standards, die

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                  federal Register / Vol. 58, No. 72 / Friday, April 16, 1993  /Proposed Rules
                                                                      20985
  Office of Research and Development
  Risk Reduction Engineering
  Laboratory's RREL Treatability
  Database, and other information that
  was available in State or EPA records.
  This information enabled EPA to,  ;
  develop estimates for the toxic effluent
  levels currently achieved at facilities
  and the levels-that could be anticipated
  to be achieved with alternative
  treatment systems. If this analysis
  showed that additional treatment was
.; needed, unit processes were then
  selected as additional end-of-pipe  .   '
.  treatment. EPA generally assumecTthat
  additional treatment would be added as
  end-of-pipe because it did not have such
  process-specific information such as
  flows, treatment-in-place, process waste
  characteristics or recycling capabilities
  that would allow an assessment of other
  potentially less expensive alternatives.
  The estimates most affected by the end-
  of-pipe assumption would be the size of
  the  treatment units because this
  assumption had to be based on  ,
  treatment of the entire flow. Where
  process-specific information was .
  available, however, EPA attempted to
  develop estimates for treating separate
•  process waste streams.             •
    In several instances, additional end-
  of-pipe treatment was not projected for
  a facility. This was the case where
  existing treatment facilities could
  accomplish the required treatment,  .
  current permit requirements or
  construction plans were already in place
  to provide the additional treatment, or
  the incremental amounts of pollutants
  to be removed were minimal/In each of
  these instances, it is not currently    '.,
  anticipated that there will be
  appreciable treatment requirements
  directly attributable to the GLWQG.
  . b. POTW Costs. In the case of
  municipalities, orPQTWs, compliance
  costs are also a function of their ability
 ,to implement additional controls
  through pretreatment programs they
 administer. Therefore, in setting cost
 estimates for these systems, -
 consideration was'given to the number
 and  types of industrial users discharging
 to the collection system, as well as the
 size  of the POTW. If additional
 pretreatment controls or modifications
 seemed unlikely to achieve the
 pollutant reductions, then additional
 treatment at the POTW was  considered
 the next most likely option.
   Capital costs were estimated for
 facilities where the analysis indicated
 that  additional or enhanced treatment
 was needed. After identification .of ;the
 treatment system, these costs were then
 estimated based on the information from
 such readily available EPA documents
, ,as the Development Document for    \.
  Effluent Limitations Guidelines and
  Standards for the Metal Finishing Point
  Source Category CEPA/440/1-83/091)
  June 1983; Development Document for
  Existing Source Pretreatment Standards
  for the Electroplating Point Source
  Category (EPA/440/1-79/003) August
  1979; and Treatability Manual, Volume
  IV: Cost Estimating (EPA/600/8-80-
  042d) July 1980, which are available in
 . the administrative record for this
  rulemaking.
    Effluent guidelines and development
  documents appropriate to-each facility's
  industrial category were also consulted.
  However, since the majority of the
  proposed Guidance pollutants of
  concern were metals, EPA decided that
  the metal finishing and electroplating
  development documents were the most
  appropriate for use in this study. Once
  the estimates were made, they were
  converted into first quarter,1992 dollars
  using the Engineering News Record
  Construction Cost Index.
    For assessing annual costs associated\
  with operation and maintenance of the
  facilities, the analysis focused on the
  costs associated with the addition of
 supplemental treatment systems. These
 costs were generally based on the same
 information and sources as the capital
 costs, and reconciled using the same
 Engineering News Record Construction
 Cost Index.
    c. Monitoring Costs.. Monitoring costs
 for permitted facilities were also
 estimated. In those cases where
 additional parameters and limitations,
 were deemed necessary due to the
 GLWQG, the monitoring regimes (i.e.,
 sampling frequency) were established
 consistent with the existing monitoring
' requirements for other parameters.
 Monitoring costs were then estimated
 based upon information generated hi the
 development of the draft NPDES Permit
 Application Form 2A. This information,
 based on an evaluation of laboratories
 for costs of over 60 established     '
 analytical methods, provides average   '
 costs per method for the more common
 techniques.
   As the discharge of bioaccumulative
.chemicals of concern (BCCs) are of
 special concern under the proposed
 Guidance, this study included
 monitoring-only costs for Tier I BCGs for
 all effected facilities regardless of
 whether Tier I BCCs were detected or
 expected to be present in a discharge.
 These monitoring costs were estimated
 using the same average analytical costs
 described above for determining
 compliance with effluent limitations.
   Residual management costs were also
 estimated for industrial and municipal.
 facilities that were projected to install
 end-of-pipe treatment and generate
  additional sludge (e.g., chemical
  precipitation). These disposal costs
  were estimated for, each appropriate
  facility in the sample and then      -
  extrapolated to derive total costs for all
  facilities discharging to the Great Lakes
  System.
    A number of other costs were also
  considered depending on the specific
  circumstances surrounding a particular
  type of facility. These were generally
  one time costs related to pollutant,     ,
  minimization studies, bioconcentration
  studies, whole effluent tbxicity testing,
  pretreatmeht program revisions, waste
  minimization audits, and implementing
  pollution prevention techniques.
  Generally these costs were included
  with the capital cpstslbr purposes of
  calculating annualized costs of
  compliance,

  5. Extrapolation of Total Compliance
  Costs for Sample to the Great Lakes
  Community pi Point Sources
   Four different cost estimates were
  developed to account for differences
  between limits based on WLA #i (zero
  background absent actual data) and
  WLA #2 (assumed 50 percent
 background absent actual data), as well
  as the potential range of costs associated
  with implementation of waste and   •
  pollutant minimization studies and
  controls. These scenarios are described
 below:            •
   Scenario 1: Limits basedon WLA #1
- and the low end of the estimated range
 of waste minimization costs for all   ,
 facilities.   ,                   '
   Scenario 2: Limits based on WLA #2,
 the middle of the estimated range of
 waste minimization costs for industrial
 facilities, and PQTWs aggressively
 implement the pretreatment program to
 promote source control (high-end cost),
   Scenario 3: Limits based on WLA #2,
 the middle of the estimated range of
 waste minimization costs for industrial
 facilities, and POTWs install end-of-
 pipe treatment.                  .
   Scenario 4: Limits based on WLA #24
 high-end of an- estimated range of waste
 minimization costs, and POTWs install
 end-of-pipe treatment.
   The major difference between   ' •  .
 Scenario 2 and Scenario 3 is the
 emphasis on pollution prevention
 versus end-of-pipe; Assumptions
 underlying Scenario 2 emphasize
 pollution prevention through source-
 control. Scenario 3 focuses on end-of:
 pipe treatment, especially at POTWs.
 EPA believes that facilities will most
 likely follow the pollution prevention"
 approach to meet the requirements—
 Scenario 2 will be the most likely
 scenario of compliance. This approach
 is also consistent with EPA's desire to

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20986
Federal Register / Vol. 58, No.  72 / Friday, April 16,  1993 /Proposed  Rules
encourage pollution prevention as well
as the general preference of facilities to
reduce wastes first before considering
treatment.
  To develop a single cost estimate for
each facility for each scenario described
above, the three cost categories
mentioned above were combined into a
single annualized cost, which reflects
the annual economic costs associated
with recurring activities, repaying
capital expenses, and special studies.
Annualized costs were calculated by
assuming that all capital costs and
special study costs would be paid by
borrowing money at an interest rate of  •
seven percent and paying it back over a
10-year period. Annual costs of
monitoring, operation and maintenance
were added directly.
  Given a single  estimate of the
annualized cost for each facility, the
procedure for extrapolating costs from
the sample to the entire population is
pra-datermined by the stratified random
sampling procedure used to select the
subset of facilities examined hi detail.
Using the single annualized cost figure
lor each plant, an estimate of the cost for
each category/stratum was calculated by
averaging the values for individual
(sample) plants, and then multiplying
by the total (population) number of
plants in that category/stratum. The cost
estimate for the category is calculated
simply by summing over the strata in
the category. The cost estimate for the
entire universe of facilities is simply the
sum across categories. This procedure is
followed to estimate costs for each
scenario.
  EPA has identified an estimated 3,500
indirect industrial dischargers that
discharge to POTWs in the Great Lakes
System and has developed preliminary  •
"estimates of compliance costs for them.
These preliminary cost estimates are
based on the assumption that indirect
dischargers affected by the GLWQG
would incur the average cost that same
type of direct industrial dischargers
would incur under cost Scenario 2. In
addition, EPA assumed that costs to
categorical industrial users would be
higher than the costs to non-categorical
significant industrial users. The
following four scenarios for indirect
dischargers are consistent with the four
cost scenarios developed for direct
dischargers.
   Scenario 1: Assumes that 10 percent
of all indirect dischargers in the Great
Lakes basin would install treatment
controls.
   Scenario 2: Assumes that 30 percent
of all indirect dischargers in the Great
Lakes basin would install additional
controls
                        Scenario 3: Assumes that 20 percent
                      of all indirect dischargers would install
                      additional controls.
                        Scenario 4: Assumes that 20 percent
                      of all indirect dischargers would install
                      additional controls.
                        The estimated percent of indirect
                      dischargers affected by the Initiative
                      was based on an assessment of
                      conditions involving industrial users
                      arid their toxic dischargers to a
                      moderately large POTW in the Great
                      Lakes basin.

                      C. Limitations of the Analysis

                      1. Limitations in Scope
                        This analysis addresses costs to point
                      source dischargers and indirect
                      dischargers only. EPA did not attempt to
                      identify the least costly means of
                      controlling a particular pollutant or to
                      estimate costs to nonpoint sources. EPA
                      also did not attempt to estimate the
                      costs associated with other aspects of
                      the GLWQG, such possible future Tier I
                      numeric criteria and use of Tier n
                      values in individual permits, nor does it
                      quantify the incremental costs to States
                      of implementing the proposed
                      Guidance. Alternatively, the study does
                      not account for potential cost savings
                      from less stringent limits that could be
                      granted through the variance provisions.
                      It also does not attempt to estimate cost
                      reductions to direct and indirect
                      industrial and municipal dischargers
                      that are able to allocate part of the
                      burden of pollutant reduction to diffuse
                      sources under State nonpoint source
                      regulations.
                      2. Impact of Technical Assumptions
                        Based on the  limited resources and
                      data available for this analysis, certain
                      simplifying assumptions were made that
                      could impact estimates of compliance
                      costs. Several of these assumptions and
                      their potential impact on the
                      compliance costs are summarized
                      below.
                        a. Due to the lack of effluent data,
                      process descriptions, etc., in some of the
                      permit files, as well as the constrained
                      analytical detection capabilities
                      reported by some facilities, it was
                      unclear if some of the pollutants of
                      interest were actually in the effluent at
                      detectable levels. If a facilities'
                      maximum observed values were at or
                      below detection levels, but the detection
                      limit was higher than what is achievable
                      using the most sensitive EPA-approved
                      analytical methods, then for purposes of
                      determining the need for WQBELs, the
                      value of the highest detection limit was
                      used as the maximum effluent
                      concentration. This would tend to '
                      overestimate the need to control toxic
discharges, and potentially overestimate
costs.
  b. In the absence of any receiving
water critical low flow values, zero flow
was assumed (i.e., effluent dominated
flow). This most likely results in more
stringent WQBELs, and tends to
overestimate costs. Additionally, for
many facilities the 30Q5 and harmonic
mean flows were estimated from the
7Q10 low flow. Use of the actual 30Q5
and harmonic mean could result in
either less or more stringent limitations.
  c. The most common program
component considered for this
evaluation for POTWs is development of
local limits for the pollutant(s) for
which WQBELs were established.
Estimation of local limit development
costs tend to overestimate compliance
costs, as the existing General'
Pretreatment Program regulations (40
CFR part 403) already require
pretreatment POTWs to evaluate the
need for new or revised local limits at
least every five years.

D. Findings

1. General Observations
  a. The proposed Great Lakes water
quality criteria and values and
implementation procedures did not
always result in more stringent effluent
limitations for a particular pollutant, as
compared to existing permit limitations
and conditions or those limitations that
would be imposed as a result of current
regulatory requirements. This was
particularly true for the metals and
phenol for which either technology-
based and/or water quality-based
limitations were commonly found in
permits.
  b. Some States appear to have
implemented controls more
aggressively. Therefore, permittees in
these States will incur proportionally
less compliance costs to comply with
the GLWQG.
  c. Most of the data contained in   -
permit files  (e.g., the permit application)
and in PCS was not reported using
analytical methods sensitive enough to
accurately assess the true impact of the
GLWQG. This analysis tended to err on
the conservative side, as limits were
derived for pollutants that were
reported as below less stringent
detection levels. Permit writers could
require further analyses using more
stringent analytical methods to
determine whether a pollutant is indeed
present.
  d. Where GLWQG-based limitations
were found to be more stringent than
the existing permit limitations, the
.incremental difference,was typically
.relatively small. Further, in the absence

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                Federal Register /Vol. 58, tfp.  72 I Friday, April  16,  1993  /Proposed Rules
                                                                     20987
of an existing permit limitation, the
incremental difference between the
GLWQG-based limitations and reported
concentrations was also found to be
relatively smalL Generally, on a
concentration basis, the incremental;
difference was found to be less than one
part per million (or one milligram per
liter).   .,.        '•'.           :.

2, Specific Findings -        r      . V
  a. Of the 3,795 direct discharging
facilities hi the Great Lakes System,
about 85 percent of these facilities are .
minor dischargers. POTWs account for
more-than-half (54 percent) of all major
dischargers.
  b. Over 23 billion gallons per day
(total daily average) of wastewateris
 discharged by major dischargers into the
 Great Lakes System. The.steam electric
 category alone accounts for over 70
 percent of the total .daily average flow
 discharged to the Great Lakes System.
 Over 40 percent of all direct dischargers
 are located in Michigan; over 20 percent
 are located in Ohio.         '   ...'-.
   c. The total annualized compliance
 costs of implementing the GLWQG to
" direct and indirect dischargers is
 estimated to be between $80 million
 under Scenario 1 and $505 million.
 under Scenario 4 (See Table IX—1).
 Major increases in costs between
 Scenario 1 and Scenario 2 are attributed
 to direct industrial and municipal
 majors and to indirect dischargers as
 POTWs implement aggressive source/
pretreatment programs; Under Scenario
3, costs to.major municipal facilities   ,
more than double from Scenario 2 costs
as they-'are projected to install end-6f-
pipe treatment systems. These
additional treatment systems at POTWs
will substantially incfease.the residual
management costs—from about $5    .  ,
million under Scenario 2 to.over $200
million under Scenario 3. Costs to  ,,
mdirect dischargers decline under
Scenario 3 because POTWs are
installing .end-of-pipe treatment rather
than aggressively implementing the
pretreatment program. As a result, a
smaller number ofIndirect dischargers
are expected to incur costs.       ;
                                     TABLE IX-1—SUMMARY OF ANNUALIZED COSTS
                                          -  -•  [First quarter 1992 $, millions]
; •-'•'.'• Cost categories "• . ' " -
, '-.-'' ' - • . ' . ; -.. _ ... -• • - *~_ • .
Major direct dischargers— Industrial 	 	 	 	 	 	 	 	 	
Major direct dischargers — Municipal 	 	 	 	 	 	 '• 	 	 	 ........ 	 	 	 ....; 	 	 	 ........

Indirect dischargers 	 	 -.....; 	 	 	 	 	 	 	 .—• 	 — • 	 •• 	 • — ".—• 	 •••—
Total costs 	 , 	 	 	 	 	 	 	 	 	 	 	 ;. 	 .................
Scenarios
r',"'
: 37.4
5.1
10.5
26.5
79.5
2
, 61.1
41;,2
10:5
79.5
192.3
3
61.5
48.9
10.5
53.0
173.9
•«,',
88.5
53.5
10.5
53.0
205.5
  Source: Assessment of Compliance Costs Resulting from Implementation of the Proposed Great Lakes Water Quality Guidance.
  EPA considers Scenario 2 to be the
 most likely scenario of the four
 described above and estimates the  '• :
 annualized compliance cost to be about
 $192 million. Indirect and direct major
 industrial dischargers account for 41
 percent and 32 percent, respectively, of
 these costs. Major POTWs account for
 the largest proportion of total
 annualized costs borne by any of the
 category of dischargers; the mining
 category is estimated to incur the lowest
 proportion .of costs for the universe of
 industrial categories.
   d. Major industrial and municipal
 facilities would bear about 53 percent of
 the total annualized costsjunder
 Scenario 2 of the GLWQG. Indirect
 dischargers account for about 41 percent
 of the annualized costs. Minor
 industrial and municipal dischargers
 account for the remaining 6 percent of
 the total annualized costs. Among the
 majors, three categories account for the
 majority (79 percent) of the costs:
 POTWs (37 percent), organic chemicals/
 refining (27 percent) and pulp and
 paper (15 percent).
   e. Average plant costs range from
. about $2,800 to $1,080,000. The three
 highest average cost categories are
 organic chemieayrefining ($1,080,000),
 pulp and paper ($305,000), and .
 miscellaneous; ($211,400); Although
 major POTWs make up a large portion
 of the total cost, the average cost per
 plant is not among the .highest at
 $130,400.                  .""--.'
   About 3,200 minor dischargers or
 small facih'ties incur an estimated $10.5
 million in annualized costs for special  .
 monitoring studies. At 5 percent of the
 total annualized costs, this translates
 into less than $3,300 per facility.
   f. Annualized capital costs account for
 about 7 percent of the total annual cost
 for majors, but none of the costs for
 minors, which are not expected to
 require investment in treatment        "'
 technology.                    ,  '
   g. Waste/pollutant minimization
 studies and implementation of
 appropriate controls/techniques are a
 very significant portion of the total
 expected cost of the proposed Guidance.
 The total annualized costs of such
 studies make up about 54 percent of the
 costs for direct dischargers under
 Scenario 2.
   h. The annual cost of monitoring,
 operating and maintaining equipment,  ".
 etc., makes up about 36 percent of the
 estimated annual costs for direct
 dischargers. Special monitoring studies
 account for about 4 percent. .
 E. Provisions in the Proposed Guidance
 Available for Use at States' Discretion
 To Mitigate Compliance Costs

  ' The GLWQG includes several
 provisions that States can use under
 specified circumstances to allow
 dischargers to lower their cost of
 compliance. EPA has not projected the
 .use of these variances in estimating  .
 costs. These are summarized below and
: discussed in more detail in their
 respective sections;

 1. Additional Tune To Collect Data To
 Derive a Numeric Tier I Criteria or a
 New Tier n Value

   Procedure 9 of appendix F to part 132
 (Compliance Schedules) provides for
 States to grant dischargers time to
 collect additional toxicity data to derive
 aquatic life, wildlife, and human health
 criteria or  values. These additional data
 could be used to develop new effluent
 limits that may be less stringent and'
 hence potentially less costly to comply
 with.  ;    .'..'-.'..'           ,
 2. Variances From Water Quality
 Standards           '

*.  Procedure 2 of appendix F to part 132
 provides for States to grant WQS
 variances if a discharger follows these

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 20988          Federal Register / Vol. 58, No. 72  /  Friday,  April 16. 1993  /  Proposed Rules
 procedures. Such variances could result
 in lower compliance costs.
 3. Mixing Zones
   Procedure 3 of appendix F to part 132
 includes provisions regarding mixing
 zones for point source dischargers.
 Mixing zones generally allow less
 stringent effluent limitations.
 4. Reasonable Potential To Exceed
 Water Quality
   Procedure 5 of appendix F to part 132
 provides procedures for determining
 whether a discharge of a pollutant has
 the reasonable potential to cause or
 contribute to an exceedance of water
 quality standards and, therefore, must
 be controlled in the NPDES permit
 through a WQBEL. Under procedures
 discussed in appendix F, a permitting
 authority may allow dischargers
 additional time to derive numeric Tier
 I criteria instead of Tier n values for
 consideration in this determination and
 thereby reduce the likelihood of a
 finding of reasonable potential.
 5. Designated Use Modification
   The GLWQG provides methodologies
 for deriving human health criteria based
 upon (1) fish consumption and
 recreational exposure, and (2) fish
 consumption, recreational exposure and
 drinking water consumption. A State
 must provide protection based upon the
 second category of human health
 criteria  for water bodies that are used as
 public water supplies. The second
 category of human health criteria are
 generally more stringent than the first.
 Water bodies may be designated as
 public water supply. But if that use  does
 not exist, this designation may be
 removed hi accordance with the
 regulations at 40 CFR130. If the use is
 removed, then the first set of criteria
 would apply to the water body, and
 would result in less stringent water
 quality-based effluent limitations for
 dischargers. These provisions are
 discussed in more detail in section HE
 of the preamble.
 8. Site-specific Criteria
  Procedure 1 of appendix F to part 132
 provides for States to develop site-
 specific modifications to aquatic life
 criteria and values. These may result in
 less stringent criteria or values, and  ,
 subsequent WQBELs, which may be less
 costly to comply with.
 7. Total Maximum Daily Load CTMDL)/
 Waste Load Allocation (WLA)
  Procedure 3 of appendix F to part 132
 provides two options forTMDL
 development. These options can be used
to pTov>da alternative control measures
 for dischargers potentially subject to
 water quality-based controls.
   a. The State or Tribe may collect
 sufficient data to support a smaller
 margin of safety than would otherwise
 be possible. This would allow
 establishment of a larger WLA and
 corresponding less stringent permit
 limit.
   b. The State or Tribe may also allocate
 or reallocate the available load among
 various point and nonpoint sources.
 Such reallocations could be arranged at
 the request of two or more sources who
 may have reached an agreement
 between themselves regarding a shifting
 of the pollutant reduction burden. Such
 reallocation could result in less
 stringent effluent limits for some
 dischargers.

 8. Compliance Schedules
   Procedure 9 of appendix F to part 132,
 allows changes in schedules of
 compliance for existing dischargers to
 comply with new criteria and values.
 Where limits are based on Tier n values,
 such schedules may allow time to
 collect data to revise such values before
 compliance is required.
   EPA has not attempted to project the
 use of these provisions and, therefore,
 has not estimated the potential savings
 resulting from their application.
 Commenters should address the
 feasibility of using these and other
 provisions and estimating potential
 compliance cost savings attributable to
 the future usage of these provisions.

 F. Sensitivity Analyses
   As described in section D.I above,
 there were several limitations in the
 scope of the cost study. In an effort to
 evaluate the impacts of these study
 limitations on the total estimated
 compliance cost, several sensitivity
 analyses were performed.

 1. Tier I BCCs Are Found-
 Bioaccumulating
  As is required under the proposed
 GLWQG implementation procedures,
 when a water quality-based effluent
 limitation (WQBEL) for a BCC is below
 the most  sensitive analytical detection
 level, then a pollutant minimization
 study and a bioaccumulation study
 must be performed by the facility. For
 purposes of the cost study, EPA
 assumed  that each of these studies
would be performed only during the
 first year of the permit term; any future
 costs related to the assessment and
 control of Tier I BCCs found to be
bioaccumulating at unacceptable levels
were not  estimated. If this situation
 occurs, however, the proposed     . :
 Guidance requires the facility to review
 and modify the pollutant minimization
 study originally performed to control
 the discharge of the BCC.
   To address this issue EPA performed
 several calculations to estimate the
 potential incremental compliance cost.
 These calculations were based on the
 assumption that a facility would incur
 the same pollutant minimization study
 cost once more (including the Costs
 associated with monitoring, performing
 an initial assessment, and identification
 and implementation of control
 measures). It should be noted that
 bioancumulation studies were required
, for only 20 of the 59 sample facilities
 examined in the compliance cost study.
 Incremental costs were calculated under
 four different assumptions:
   a. Assuming each of the permittees
 required to perform bioaccumulation
 studies find pollutants in the waste
 stream which bioaccumulate;
   b. Assuming 50 percent of the
 permittees required to perform
 bioaccumulation studies find pollutants
 in the waste stream which
 bioaccumulate;
   c. Assuming 25 percent of the
 permittees required to perform
 bioaccumulation studies find pollutants
 bioaccumulating! and
   d. Assuming 10 percent of the
 permittees required to perform
 bioaccumulation studies find pollutants
 bioaccumulating.
 To calculate a total incremental cost,
' EPA extrapolated to the universe of
 direct dischargers in the Great Lakes
 System utilizing the same procedures
 used to calculate the total compliance
 cost in the cost study.
   Using this procedure, the incremental
 costs under the most conservative
 assumption (i.e., assuming 100 percent
 of the facilities required to perform • •
 bioaccumulation studies would require
 additional controls) range from about
 $10 million to $52 million under the
 four cost scenarios. Under the least
 conservative assumption (i.e., assuming
 10 percent of the facilities required to
 perform bioaccumulation studies would
 require additional controls) incremental
 costs range from about $1 million to $5
 million under the four cost scenarios.
   EPA believes that the most
 conservative assumption (i.e., 100
 percent failure) is unlikely to occur; the
 most likely incremental cost that would
 be incurred would be between the costs
 associated with 50 and 10 percent
 assumptions. Assuming that 25 percent
 is considered the most likely failure
 rate, and if cost scenario 2 is considered
 the most likely compliance cost estimate
 for the GLWQG, then the total
 incremental cost related to failure of

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                 Federal Register / Vol. 58, No. 72  /  Friday, April 16, 1993 / Proposed  Rules
                                                                       20989
.bioaccumulation studies would be about
 $5.0 million dollars annually.
 2. Proposed Antidegradation ,   .  L
 Requirements
   The baseline cost study did not
. address costs associated with the   .
 proposed antidegradation requirements.
 EPA developed preliminary cost ,
 estimates of the proposed GLWQG   :
 antidegradation policy upon the
• regulated community of the Great Lakes
 System. This preliminary analysis is   .
 based on the assumption that of the
 existing 3,795 permittees that will be.  ,
 affected by the GLWQG, approximately
 190 (5 percent) are expected to request
 an increase in permit limitations during
 a five-year permit cycle. For.purposes of
 this; apalysis, it is also assumed that
 certain new facilities will propose to
 initiate direct discharge and request to
 lower the water quality. Therefore, an
 additional 3 .percent of the existing
 minor facilities (3j>ercent of 3,207, or
 96 facilities) and I percent of the
 existing major facilities (l percent of
 588, or 6 facilities) were assumed to  .
 represent hew dischargers that choose to
 prepare antidegradation demonstrations,
• again, during a five year permit cycle. In
 summary, a total of ,8 percent (for minor
 facilities) and 6 percent (for major
 facilities) of the total number of
 facilities in each category and flow
 strata were assumed for this analysis.  "•
   Based on the above assumptions for
 the number of affected facilities and the
 results from the .cost study, preliminary
 cost estimates for demonstrating the
 rieed for antidegradation were
 developed. To perform the preliminary
 analysis, the cost,of implementing the
 results of each 6f the steps required for
 an antidegradation demonstration were
 developed separately (i.e., Step 1—
 pollution prevention, Step 2—  •
 alternative or enhanced treatment, Step
 3—social/economic analysis).
   a. Step 1—Pollution Prevention,The
 first step a facility must undertake to
 support a determination for the need for
 degradation or a justification for the
 heed to lower water quality is to show
 that implementing pollution prevention
 measures will not result in compliance
 with the existing effluent limits. The
 costs for assessing and implementing
 waste minimization/pollution
 prevention measures were derived from
 estimates contained in the GLWQG cost
 study. Each of these costs were then
 multiplied by 8 percent (for minor  .'
 facilities) and' 6 percent (for major
 facilities) of the total number of
, facilities in each category and flow
 strata and totalled.  •            '    '
   Assuming that all facilities
 performing-the Step 1 demonstration
 conclude that implementation of •
 pollution prevention will result in
 compliance with their existing effluent
 limits, the annualized compliance costs
 could range from about $2,7 million
 (under cost scenario 1) to $6.7 million
 (under cost scenario 4).      -.-"..'- r
   b. Step 2—Alternative or Enhanced
 Treatment. Assuming that all of the
 facilities performing a Step 1 analysis
 demonstrate that pollution prevention
 measures will not eliminate the need to
 significantly lower the water quality,
 then all of the assumed facilities would
 move on to a Step 2 analysis (assuming
'. there is still a desire by all facilities to
 pursue significant lowering of the water
 quality). To assess the costs of     -;
 alternative or enhanced treatment, three
 different costs were estimated including
 the additional costs to modify-the
 existing treatment train at a facility, the
 costs for additional treatment, and
 reporting costs. These three cost
 estimates were totalled and then
 multiplied by 8 percent (for minor
^facilities) and 6 percent (formajor
 facilities) of the total number of
 facilities in each category and totalled.
   If all assumed existing and new
 facilities were required to spend up to
 10 percent of average capital, and
 Operating and maintenance costs more
 than the treatment required to meet
 relaxed effluent limits, then-these
 additional  annualized costs could range
 from about $300,000 (under scenario 1).
 to about $724,000 (under scenarios 3 '>
 and 4). It is important to recognize that
 if these costs are incurred, the
 antidegradation procedures would not
 require the entity to go to Step 3 and
 none of the costs associated with Step
 3 would be incurred.
   c. Step 3—Social/Economic Impact. -
 To estimate costs for Step 3 it was
 assumed that all facilities performing a' :
 Tier 1 and Tier 2 analysis are denied
 their request to lower the water quality
 (i.e., the facilities did not adequately
 justify the  case for the social or
 economic benefits of lowering the water
 quality associated with the proposed
 action and therefore the facilities must
 incur the costs associated-with treating
 effluent to current water quality based
 effluent limits or loading rates). This  '
 , scenario ,is assumed to be conservative
 as it would be expected that many
 facilities would adequately'show that
 lowering the water quality would result.
 in social or economic benefit. For
 analysis of Step 3 costs it was assumed
 that each facility would incur the
 following costs to prevent the     •'-••••
 significant lowering of the water quality:
 the .additional costs to modify the     :
 existing treatment train at a facility, the
 costs for additional treatment; and the •
 costs to perform the social arid        \.
 economic analysis. These-three cost
 estimates were totalled and then    ,
 multiplied by 8 percent (for minor'
 facilities) and 6 percent (for major .
 facilities) of the total number of
 facilities in each category and totalled.
   Estimated annualized costs for Step 3
 range from about $i.5'million (under
 scenario 1) to $3.6 million (under
 scenarios 3 and 4)t EPA considers these
 costs to be overstated since some     ,
 pollutant reduction benefits from
 implementation of pollution prevention
 alternatives identified in Step 1 will be
 realized, by facilities.
   d. Summary. In summary, under the
 worst case/the proposed GLWQG anti-
 degradation procedures could cost the
 regulated community in the Great Lakes
 basin approximately $11 million per
 year. This estimate should be viewed as
 an overestimate due to the fact'that it is
 highly unlikely that a facility will incur
 the total cost for each step in the
 demonstration process (i.e., there will
 be some treatment benefit at the
 completion of steps 1 and 2 of the
 demonstration process). In addition,  •
 some facilities may be allowed to lower
 the water quality if social and economic
 impacts are demonstrated, and thus the
 facilities would not be required to incur
 all the costs for additional treatment.
 Assuming that Cost Scenario 2 is the
 most probable cost scenario, then the
 more •reasonable worst case,costs related
 to the proposed GLWQG anti-  _..:  ,
 degradation procedures swtould be about
 $7 million dollars.

 3. Future Detection of BCCs           '>
  •. Preliminary estimates were derived to
 reflect the potential incremental costs to
 direct dischargers to the waters of the
. Great Lakes System if BCCs for which
 Tier ! criteria are proposed in Tables 1
 through 4 of Part 132 are detected from
 increased monitoring. In accordance
 with the proposed GLWQI
 implementation procedures, a facility is
 required to conduct a pollutant
 minimization study and a
 bioconcentration study if a water
 quality-based effluent limitation
 (WQBEL) for a Tier IBCC is set below
 analytical detection levels. Based on
 these requirements, 20. of the 59  ;
 facilities evaluated in the cost study
 would be required t6 undertake a , ,  \
 pollutant minimization arid a
 bioconcentration study, ^incathe cost
 study included costs for all facilities to
 monitor for Tier I BGCs, an analysis was
 conducted to determine what the
 incremental-increase in pollutant
 minimization and bioconcentration
 study costs might be if Tier I BCCs are ;
 detected in the discharge. A simple set

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2099'
Federal Register / Vol. 58, No. 72 / Friday, April 16, 1993 / Proposed Rules
of assumptions was used to estimate the
possible incremental pollutant
minimization andbioconcentration *
study exists for the entira population
resulting from increased Tier IBCC
monitoring. These assumptions include:
each facility in the population is
expected to detect, at most, one of the
11 Tier I BCCsj and 25 percent of the
facilities in the population are expected
to detect one Tier I BCC. The costs to
perform the pollutant minimization
study and the bioconcentrau'on study
wore estimated using the same
procedures and cost assumptions used
in the cost study analysis—excluding
monitoring costs.
  The resulting total incremental
anmudized costs are estimated to range
from $13.4 million (under Cost Scenario
l) to $37.3 million (under Scenario 4).
Assuming that Cost Scenario 2 is the
most likely scenario, then the estimated
incremental cost is $27.8 million
annually. It should ba noted that the
cost contribution by minors account for
more than 50 percent of the additional
cost. Because minors generally do not
have toxics in their discharge, they are
not expected to detect any Tier I BCCs
in their discharge. Thus, the additional
costs are perceived to be overestimates.
4. Elimination of Mixing Zones for BCCs
  The proposed GLWQG
implementation procedures require that
within 10 years after the effective date
of the regulation, waste load allocations
(WLAs) for BCCs be set to the most
stringent water quality criterion or a
fraction of the WLA that has been
established (i.e., no mixing zones will
be allowed). EPA assessed the potential
costs resulting from future elimination
of mixing zones for BCCs for facilities
that were evaluated hi the cost study.
  To assess this future impact, EPA
compared the existing most stringent
GLWQG-based WQBEL with the most
stringent water quality criterion for the
20 of 59 facilities required to comply
with Tier I BCC VVQBELs. Presumably,
if some or all of these 20 facilities have
to comply with a more stringent -
Hinitation(s) (i.e., water quality criteria)
in 10 years, than they will incur costs
beyond what was  estimated in the
compliance cost study. EPA also
presupposed that  the results derived
from the evaluation of these 20 facilities
would be a good general indication on
the likely impact on the entire
population of dischargers. The results of
this comparison are provided below:
  a. Fifteen facilities had existing
WQBELs for Tier I BCCs that were equal
to the most stringent proposed numeric
water quality criteria. In addition, both
tha WQBEL and the water quality
                      criteria were below tha most sensitive
                      detection levels by at least one order of
                      magnitude. Thus, these facilities, as
                      evaluated under all of the assumptions
                      in the compliance cost study, would not
                      be expected to incur, any additional
                      , costs because elimination would not
                      require further reductions.
                        b. For seven facilities, proposed water
                      quality criteria were more stringent than
                      the WQBELs. These facilities would
                      appear to be candidates for incurring
                      additional compliance costs 10 years
                      from the effective date of the regulation.
                      , For facilities listed in this finding,
                      however, the WQBEL was at least one
                      order of magnitude less than currently
                      achievable detection levels (and
                      consequently the water quality criteria
                      was even further below detection
                      levels). While in theory, one can assume
                      that a water quality criterion, by virtue
                      of its being less than the WQBEL, will
                      result in additional costs and/or impacts
                      for facilities, a practical justification
                      appears difficult—unless the detection
                      limit for each Tier I BCC  in this category
                      can be  lowered by the time compliance
                      with water quality criteria are required
                      (10 years). Thus, because of the inability
                      to predict where the detection limit
                      might lie in 10 years, the prediction of
                      future costs has no basis  at this time for
                      facilities in this finding.
                        c. For two facilities, only one Tier I
                      BCC (endrin) had a detection level that
                      was lower than both the WQBEL and
                      the water quality criteria; In these cases,
                      it was determined that the WQBEL and
                      the water quality criteria were in the
                      range where costs associated with
                      compliance with both requirements can
                      be anticipated. But both of these
                      facilities had existing permit limits for
                      endrin that are more stringent than the
                      calculated WQBEL. Thus, the existing
                      permit limit was compared to the most
                      stringent proposed water quality
                      criteria. In both cases, the permit limit
                      is very close to the proposed water
                      quality criteria implying  that any future
                      compliance costs would be minimal.
                      Further, these facilities were already
                      projected to incur costs for the control
                      of other pesticides for which GLWQG-
                      based effluent limits were established.
                      Based on this, EPA believes that future
                      compliance costs for endrin are
                      negligible for both of these facilities.
                        Also, one of the two facilities had a
                      WQBEL for heptachlor that was greater
                      than the detection level. The most
                      stringent water quality criteria,
                      however, was below the most sensitive
                      detection level by one order of
                      magnitude. For the same reasons  .
                      discussed for endrin, the cost impact is
                      expected to be minimal.
  d. In summary, EPA's conclusions,
based on an evaluation of the 20
facilities on the future impact of the
elimination of mixing zones are:
  i. The current compliance cost
estimate appears to have indirectly
taken into consideration the impact of
end-of-pipa requirements for Tier I
BCCs for the majority of facilities in the
sample. Generally, the population of
dischargers is likely to exhibit the same
characteristics. For these facilities, no
future impacts are anticipated.
  ii. Since changes in analytical
detection levels cannot be predicted
and/or are unlikely, facilities.that have
a more stringent water quality criteria
than a WQBEL,  on a practical basis, are
the same as the facilities where the   -
WQBEL and the water quality criteria
are the same.
  iii. Assuming that no significant
changes in analytical detection  levels
occur over time, only two Tier I BCCs
(endrin and heptachlor) are expected to
cause additional costs from end-of-pipe
requirements for a very small portion of
the sample (2 facilities). These costs are
expected to not be significant.
5. Prevalence of Tier II BCCs and
Potential BCCs
  Since the cost study focused only on
pollutants with proposed Tier I numeric
criteria, the estimated compliance costs
reflect only those costs associated with
complying with water quality-based
effluent limitations (WQBELs) for Tier I
BCCs. Acknowledging that there may be
future costs associated with regulating
additional BCCs and potential BCCs
using Tier II values, EPA evaluated how
prevalent such Tier n BCCs and
potential BCCs were in the discharges of
the 59 facilities  examined for the cost
study. Using the results of this
evaluation, some general conclusions
were drawn on what the cost impact
might be if facilities are required to
comply with future Tier n BCC  and
potential BCC requirements. The two-
tiered approach is discussed in  more
detail in section II.D.
  To evaluate Tier II BCCs  and potential
BCCs, EPA re-examined the files of the -
59 sample facilities considered  in the
compliance cost study. Permit
application data and any other data in
the permit file were reviewed to
determine if any Tier n BCCs and
potential BCCs were pervasive in the
facilities' effluent. As part of the
evaluation EPA also examined each •
facility's existing permit to determine if
any Tier H BCCs and potential BGCs are
currently regulated (i.e., limited and/or
monitoring requirements). The findings
indicate that:

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                 Federal Register 7 Vol. 58, No. 72 /Friday, April 16, 1993  / Proposed Rules
                                                                     20991
   a. A total of 28 out of 50 facilities had
 monitoring data that ranged from a few
 (5) to most (27) of the 32 Tier II BCCs.
 (Nine of the 59 in the sample belong to
 the two minor categories. None of the
 minor facilities had analytical data for
 the Tier II BCCs and potential BCCs.
 Thus, only the results of facilities in the
 major categories (50) are reported.) Out
 of these 28 facilities, only two facilities,
 detected a Tier II BCC. Moreover, these
 facilities detected only two of the 17
 Tier II BCCs. These facilities detected
 one potential BCC each; and only 2 of
 the 15 Tier H potential BCCs.
   b. Sixteen  of the 50 facilities did not
 provide any monitoring data  (the    ;
 majority of which fall into the major
 POTW category).
   c. Nine of the 50 facilities did not
 provide any monitoring data but
 reported that the BCCs were "believed
 absent for some or most of the Tier n
 BCCs and potential BCCs.
   d. The detection levels reported for
 virtually all Tier II BCCs and potential
 BCCs were higher than the most   .
 .sensitive currently achievable detection
', levels.                 '•'.'•.'     :
   e. The concentrations of Tier II BCCs
 and potential BCCs detected were  ' •
 generally less than current Federal
 water quality criteria.          .. ' "   "
   f., Twelve of the 50  facilities had
 monitoring or other permit conditions,
 for several of the Tier II BCCs and
 potential BCCs.
   In summary, if water quality criteria
 are developed for Tier II BCCs and
 potentialBCCs under the GLWQI and
 these criteria become permit
 requirements, the increase in
 compliance costs for additional
 treatment and/or .control costs is not,
 expected to be significant. This-
 preliminary  conclusion is, based on the
 fact that several Tier.II BCCs  and     •
 potential BCCs are already regulated in
 permits for 12 of the sample facilities,
 .as well as the fact that, based on '
 discharge data reported by sample
 facilities, Tier n BCCs and potential
 BCCs were not often detected by the   •
 sample facilities in their effluent
 streams^ It should be noted that EPA is
 aware that a key consideration regarding
 .the available data is that the currently
 reported detection levels may be
 masking the presence of some Tier II
 BCCs and potential BCCs present in
 lower concentrations. This preliminary
 conclusion is also underscored by the
 fact that the presence of a water  quality
 criteria or value for a BCC (or any   :
 pollutant) does not explicitly mean that
 a facility will incur any additional
 compliance  costs. Even if a water
 quality Criterion or value has been
 developed, it may be highly unlikely
that the BCC is actually present (at least
for most of the industrial categories), so
nacompliance costs (other than
monitoring) wpuld be borne by the
facility.     ,         ,              ,

6. Evaluation of Intake Pollutant
Options ,
   The proposed GLWQG
implementation procedures at
procedure 5.E of appendix F of the
preamble provide a proposed
mechanism  for permitting authorities to
consider the presence of intake water
pollutants in a facility's discharge when
.determining the necessity for WQBELs,
Procedure 5.E of appendix F would
allow the permitting authority to
determine that the return of identified
intake water pollutants to the same body
of water under specified circumstances
does not have the reasonable potential'.
to cause or contribute to an exceedance
of water quality .standards. Based on this
determination, the permitting authority
would not be required to establish
WQBELs for the identified intake water
-pollutants. This procedure would apply
to facilities that-return unaltered intake
water pollutants to the same .body of
water without increasing the mass   .
loading rate or concentration of the .
pollutant at the edge of any available
mixing zone, and that do not discharge.
the intake water pollutants at a time or
location that would cause adverse water
quality effects to occur that would not
-have occurred if the pollutants were left
in place. EPA compared the cost study
assumptions and methodologies to the
options presented in the proposed
regulation in an attempt to evaluate the
associated compliance cost
implications,               '
   As previously described in section  .
I.B.2 of this preamble, for the purpose
of the cost study, EPA chose to handle
pollutants in intake water in several
ways in the cost study. First," WQBELs
were not calculated for outfalls that
contained uncontaminated non-contact
cooling water that was'-withdrawn from
the same water body to which it was
discharged. This is consistent with the
proposed Guidance in procedure 5.E'of
appendix F where a regulatory authority
could determine that there is no
reasonable potential to exceed'a Tier I
criterion or Tier II value if certain
conditions are met. EPA believes that
most uncontaminated once-through
non-contact cooling water would meet
these conditions. In addition, to
evaluate the costs associated with other
options for addressing intake water
pollutants where the pollutant
" concentrations exceed Tier I criteria or
Tier H values, the WQBELs were
calculated in two different scenarios:  "
   a. WQ3EL Scenario #1: WQBELs were
 set to the intake water column
 concentration regardless of the source of
 the intake water..
   b. WQBEL Scenario #2: WQBELs were
 set equal to the most stringent criterion
 regardless of the source of the intake
 water. •  . '      .,.       .'   -••'"'    . '
   Because the cost study used an
 approach that combined provisions of
' several of the intake credit options
 presented in this preamble, no direct
 comparison was possible between the  :.
 cost study estimates and the total costs
 related to the proposed options for
 allowing intake credits. However, the
 methods used to address instances,,
 where the intake water concentrations
 exceeded Tier I criteria and Tier H
 values and the resulting compliance   .
 cost estimates appear to bracket the total
 costs  of each of the intake credit
 options, with the exception of the
 proppsed Guidance and alternative
 Option 1.     - ,
   Proposed procedure 5 .E of appendix F
. is likely to have its greatest-application .
 with cleaner discharges such as once-"
 through non-contact cooling water. For
 this reason, the rationale discussed
 above, for excluding non-contact cooling
 water from cost consideration is"
, somewhat consistent with the proposed
 Guidance, It is possible-that some non- ...
 cooling water dischargers that were not .
 excluded from the eost evaluation
. would also meet the conditions . -  ,  '  ,
 necessary for'a permitting authority to
 determine that there is no reasonable   • •
 potential to exceed a Tier I criterion or '
 Tier n value. The impact of this
 potential on cost estimate cannot be
 accurately predicted because the permit
 file information is insufficient to .
 determine whether each of these
 facilities meet the five conditions
 associated with proposed procedure 5.E
 of appendix F. •
   Under the remaining alternative
 options for addressing intake water
 pollutants, depending on whether the
 WQBEL is set equal to the receiving
 water concentration, the water quality
 criterion (WQC) or at an alternate level,
 the cost study WQBEL #1 and WQBEL
 #2 scenarios may or may not be
 consistent. Generally, estimated costs to
 comply with the WQBEL #1 scenario
 may reflect the costs associated with the
 alternative options that may potentially
 -result in establishment of WQBELs
 equal to the background or intake
 pollutant concentration (i.e., portions of
 Options 2, 3, and 4).
   Alternatively, costs to comply with
 the WQBEL #2 scenario may reflect the
 costs associated with the alternative
 options that result in establishment of
 WQBELs at the lowest water quality

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20092
Federal Register / Vol. 58, No. 72 / Friday,  April 16, 1993 / Proposed Rules
standard or criterion (i.e., Option 4b).
The estimated cost to comply with
WQBEL #1 scenario is represented by
Cost Scenario 1 ($56.7 million per year
for direct dischargers). The estimated
costs to comply with WQBEL #2
scenario is represented by Cost
Scenarios 2,3, and 4 (ranging from
$112.8 million to $452.4 million per
ytwr).
  Assuming Scenario 2 is the most
likely of the costs associated with
complying with the WQBEL #2 scenario,
then tho potential costs associated with
the options addressing intake water
pollutants generally range from $52.9
million to $112.8 million per year. For
a given option, the actual total costs
would realistically tend to move toward
tho lower end of the range because (l)
if more pollutant data was available,
more situations where the intake water
pollutants exceed Tier I criteria and Tier
II values may be revealed, resulting in
potentially greater application of the
pftjpossd Guidance; and (2) the
compliance costs for all options except
1 and the proposed Guidance do not
include any cost reductions that would
result from application of phased
TMDLs, variances or specific
modifications to criteria. The extent of
such cost reductions cannot be
estimated because of the site-specific
nature of such allowances data
limitation.
  Alternatively, if existing mechanisms
(o,g,, variances and phased TMDLs, and
site-specific criteria modification) are
not utilized by a regulatory authority,
the potential compliance costs may
increase.                         .
7. Summary
  Sensitivity analyses of major cost
study technical assumptions were
performed to determine the potential
impact on the total estimated
compliance cost attributable to the
proposed Guidance. Table IX—2
summarizes the results of these
analyses.

TABLE IX-2—SUMMARY OF OTHER POTEN-
  TIAL  COMPLIANCE COSTS" NOT  AD-
  DRESSED IN THE  GLWQG COST STUDY
                      TABLE IX-2—SUMMARY OF OTHER POTEN-
                        TIAL  COMPLIANCE  COSTS   NOT  AD-
                        DRESSED   IN   THE   GLWQG   COST
                        STUDY—Continued
Original  Cost  Study Estl-
  ma:a,
1. Costs if Tier I BCCs are
  Found BtoaccumuJatlng.
2. Costs Related to Pro-
  posed  AnU-Dogradatfon
  Requframants.
3. Costs Related to  Future
  Detection of Tier I BCCs.
                          Annualized
                          costs (first
                         quarter 1992 $,
                           millions)
        192.3

          5.0

          7.0


         27.8
                      4. Costs Related to  Elimi-
                        nation of Mixing Zones for
                        BCCs.
                      5. Costs Related to Preva-
                        lence of Tier II BCCs.
                      6. Costs  Related  to Intake
                        Credit Options.
                                                 Annualized
                                                 costs (first
                                               quarter 1992 $,
                                                  millions)
                        Unknown—In-
                          •crease ex-
                          pected to not
                          be signifi-
                          cant
                        Unknown—In-
                          crease ex-
                          pected to not
                          be signifi-
                          cant.
                        Unknown—Can
                          result in ei-
                          ther cost sav-
                          ings or addi-
                          tional costs.
  Note: All costs reflect.Cost Scenario 2.  •  •
  Source: Assessment of Compliance Costs
Resulting   from   Implementation  of  the
Proposed   Great  Lakes  Water  Quality
Guidance.

  Based oa the sensitivity analyses
performed, and as summarized in Table
IX-2 above, an additional $40 million
annually in costs may also be
attributable to the proposed Guidance.
This incremental cost represents about a
21 percent increase above the cost study
estimate. If added to the most likely cost
study estimate (i.e., Cost Scenario 2), the
total compliance costs could reach as
high as $232 million annually.

G. Future Analyses
  In addition to refining the cost
estimates for the RIA that EPA will
prepare as part of the final rulemaking,
several other analyses will be
performed. EPA will assess the
economic impact of the estimated costs
on both industrial dischargers and
municipal facilities, including an
assessment of the impacts on small
businesses. The results of these analyses
will be placed in the record for this
rulemaking.
  The final EPA analysis will include
an economic assessment of various
options that are available to implement
the final Guidance, the effect of the final
Guidance on State implementation
policies, especially for facilities that are
not discharging to the waters of the
Great Lakes System, policy implications
of implementing the proposed Guidance
in States not part of the Great Lakes
System, and the relevant contributions
of other sources of pollution to the
waters of the Great Lakes System, EPA
will also assess the potential for using
market-based incentives (e.g., effluent
trading between point and nonpoint'
sources) that can be used to achieve
compliance with the requirements of the
proposed Guidance.
H. Cost-effectiveness

1. Introduction
  Cost-effectiveness values can be used
to compare the efficiency of,one
regulatory option in removing
pollutants to another regulatory option.
Cost-effectiveness is defined as the
incremental (to another option or to a
benchmark, such as existing treatment)
annualized costs of a pollution control
option per incremental pollutant
removal (measured in  copper-based
pounds equivalent). In other words, ths
cost-effectiveness value represents the
unit cost of removing the next pound-
equivalent of pollutant.
  The cost-effectiveness analysis is a
useful tool for evaluating regulatory
options for the removal of toxic
pollutants. A cost-effectiveness
calculation is simply a ratio of the
annualized costs of a control option for
a group of dischargers to the pollutant ,
loadings removed from surface waters
by that option. Three factors are of
particular importance  in the cost-
effectiveness calculations. First, the
analysis is based on removals of
pounds-equivalent—a term used to
describe a pound of a pollutant
weighted for its toxicity. Usa of pound-
equivalent values reflects the fact that
some pollutants are more toxic than
others and enables removals to be
summed across pollutants. Copper is
used as the standard pollutant for
developing toxic weighting factors.
Second, where there are a number of
control options being evaluated, the
analysis is often done  on an incremental
basis—using the incremental cost and
removals of one control option
compared to another option or to
existing treatment. Third, cost-
effectiveness values are considered high
or low only within a given context, such
as similar discharge status or for
comparison with other industries.

2. Pollutant Loadings Reductions
  Pollutant loadings reductions were
estimated to indicate the decrease in
pollutants discharged  due to more
stringent GLWQG limits. Baseline
loadings were determined in pounds per
day by multiplying the permit limit or
effluent concentration by the facility's
flow rate and a conversion factor. If
either the permit limit or effluent
concentration for a pollutant was
reported as less than a detectable level,
the reported detection level was divided
in half. Using extrapolation procedures

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                 Federal Register /Vol. 58, No.  72 /Friday, April  16, 1993 / Proposed Rules
                                                                     20993
 similar to those used for compliance"
 costs, sample facility baseline loadings
 were averaged across all facilities in
 each strata, multiplied by the total
 number of facilities in each strata, and
summed. Total baseline loadings for
each pollutant for all direct discharging
facilities are shown in Table IX-3 under
baseline,
                                     TABLE IX-3.— POLLUTANT LOAPJNG REDUCTIONS
                                                      ILbs/day]
Pollutants
Arsenic 	 	 	 ,.... 	 .'. 	 ,..„."....„.... 	 	 	 	 .

Cadmium 	 	 	 	 	 	 	 .....: 	 	 	 '.„ 	

Chlorobenzene 	 	 	 	 	 	 	 	 	 	 	 	 	 	
Chromium III 	 	 	 .-. 	 	 	 	 	 „ 	 	
Chromium VI 	 	 	 	 , 	 	 	 	
Copper 	 	 	 .'. 	 .......,.';....i. 	 	 	 	 	

Cyanide total 	 	 	 	 	 	 ..............; 	 	 	
4,4'DDT 	 	 ; 	 , 	 	 	 	 	 	 	 	 	
Dieldrin 	 	 	 	 	 	 	 	 	 .;....... 	 	 .
2,4-Dimethylphenol , 	 	 	 	 	 , 	 .....1 	
2,4-DInitrophenol 	 .*.. 	 	 	 	 	 ...., 	 	 	 , 	 	
Endrin 	 	 	 	 	 „ 	 	 	 	 	
Heptachlor 	 	 	 	 	 	 	 	 	 	 	

Hexachloroethane 	 	 	 	 	 	 	 .'. 	 	 	 	 	 ....'...„• 	 	
Lindane 	 	 	 	 	 ..„.. 	 	 	 	 	 	 	 .". 	
Mercury 	 	 	 „... 	 	 	 :..... 	
Methylene Chloride 	 	 	 	 	 	 	 	 	 	 	
Nickel 	 	 	 	 	
Parathlon 	 .'......i. 	 	 	 	 	 ,....; 	 	 	 	 	
PCBs 	 	 	 i....... 	 	 	 	 .
Pentachlorophenol 	 	 	 	 	 	 	 	 	 	 	 	

Selenium IV 	 	 	 	 .• 	 	 	 	 	 	 	
Selenium VI 	 	 	 	 	 	 	 	 	 	 	 	
Selenium, total 	 	 	 	 . 	 	 	 	 	 	 	 	
2,3,7,8-TCDD 	 	 	 	 	
Toluene 	 	 	 	 	 	 	 	 	 	
Toxaphene 	 	 	 „ 	 	 	 	 	 	 	

Zinc 	 	 	 .', 	 	 	 	 	 	 	 	 	 .....................
Totals..... 	 	 	 	 	 	 	 	 	 ; 	 	 	 	
Baseline
5356
•000
5,760.89
1 17
000
3.38
1533
78,598.67
7731
009
032
0 15
000
000
000
037
1 50
000
0 00
5658
000
8 659 86
000
3 16
6 84
000
0 00
0 00
911.50
00059
067
640
27 17
9,225.14
103,410.07
Scenario 1
reduction
1 10
000
5,367.95
043
0 00
0.00
944
75 664 12
3284
000
000
0 10
000
000
000
0 11
0 17
0 00
000
3879
000
8027
000
0 ?3
1 09
000
000
000
903.51
00056
•0 00
0 05
26 1 1
1,017.05
83,143.88
Scenario 1
percentage
•change
2
• • 0
"93
36
o
0
62
96
42
o
16
66
0
0
0
29
11
0
0
'68
0
•1
o
7
16
0
'- 0

99
95
n
•j
96
»p
80
Scenario 2
reduction
1 01
' o 00
5 622 53
: 0 BO
000
000

76 292 93
34 <}3
000
000
0 10
000
000
o no
0 21
017
o no
o no
45 BQ
0 00
9278
6 "00

2 02
000
000
0 00
90377
• 00056
000
"005
' OR 44
1,048.61
84,082.98
Scenario 2
percentage
change


98
Rfl

0
> RQ
97
AK
0"

fiflF
0'



11
A
0"

0'"
•i
0
•IO



0
99

0
•i
QR
11
81
  Note: Numbers may not add due to rounding.                          .                       .  :
  Source: Assessment of Compliancs Costs Resulting from Implementation of the Proposed Great Lakes Water Quality Guidance.
   Scenario 1 (reflecting WQBEL #1) and
 Scenario 2 (reflecting WQBEL #2)     ;
 loading reductions were calculated by
 finding the difference between the
 esdsting permit limits and the GLWQG
 limit for each pollutant. The resulting
 difference was converted to pounds per
 day by multiplying the difference by the
 facility's flow rate and a conversion
 factor. Several assumptions were made
 to calculate the loading reduction for a
.pollutant:
   a. If the difference between the
 GLWQG-water quality-based effluent
, limitation (WQBEL) and the highest
 reported concentration was negative,
 zero reduction was assumed. This  .
 situation occurred because there were
 instances where the reported
concentration was below the GLWQG
WQBEL.                           -
  b. When the highest reported
concentration was reported as below a
detection level, one-half of this level
was used as the baseline concentration.
  c. If GLWQG WQBEL was below
analytical detection levels, the
limitation was set equal to.the detection
level divided by two for purposes of
calculating a difference.
  d. It was assumed that facilities are
discharging at the level of the existing
permit limitation.
  Loading reductions were calculated
for each direct discharging facility in the
sample and then extrapolated to .all
direct discharging facilities in the Great
Lakes System (costs and pounds
removed from indirect dischargers are
excluded from these calculations).
These are also shown in Table IX-3.
  As shown in Table IX-3, Scenarios 1"
and 2 reduce the loadings of toxic   .
pounds by about 80 percent. In general,
metals are reduced by a much higher
percent than the organic pollutants.

3. Toxicity-Weighted Loadings
Reduction
 , .The pollutant loading reductions from
direct dischargers were weighted to
compare to national standards using
EPA toxic weights (EPA/C3ST1988 Cost
Effectiveness Criteria and Weights).
Toxic weighting factors are derived
primarily from chronic freshwater
criteria and toxicity values. However,

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20994
FederalRegister /Vol. 58, No. 72 /Friday, April 16, 1993 / Proposed Rules
both human and aquatic criteria are
used In cases where a human health
criterion has been established for the
consumption offish. Toxic weights
                      along with toxicity-weighted pounds are
                      shown in Table DC—4 as are the
                      reductions associated with Scenarios 1
                      and 2.
                                 TABLE IX-4.—POUND-EQUIVALENT LOADINQ^REDUCTIONS
                                                  (Ibs-equlvalerit/day]     .' '.'  •'.
Pollutants
AfsanJc „„ 	 	 	 .. . .
Bartzeno 	 	 „. 	 	
Cadmium 	 	 	
CWordarw ..„„.....„ 	 	 	 	
CWorobonzena 	 	 	
Chromium III 	 	 , 	 , 	 , 	
Chromium VI 	 .. 	 	 	
Coppar ,„. 	 	 	 	 	 . . .
Cyanfdo, fraa 	 	 	
Cyanide, total 	
4.4T3OT 	 	 	 	 	
DfaWrfn 	 .11. 	 	
2,4*Dlmethy!ph«nol 	
2,4-Dinttroph«noi 	 	
Endrln 	 	 	 v
HapiacWor 	 	 	 	
Haxachtorobonzona 	 	 	 	
HoxacWoroelhana 	 	 	
Undana .,..., 	 	 	
M«rcury 	 	 	 	 	 	
Mathyfana Chloride 	 	 	
Nfckel 	 	 	 	 	 	 	
Parathton 	 	 	 	 .., 	
PCBs 	 	 	 	
Pantachiorophenol ., 	 	 	
phono! 	
Sfteflkim IV 	 	
Selenium VI 	 - 	 	 .
Selonlum, total ., 	
2,3,7,8-TCDD 	
Totoona ,....„„„„ 	
Toxaphsno 	 	
TrfchlofoeU^fefM} 	 	 	 	 	


Totals 	 	
Toxic weights
3203
003
509
246899
000
0.02
3550
046
1 07
1 07
28,933.33
1031578
0.00
0.18
243684
3 404.71
756.80
007
7896
50502
003
009
430.76
7,488.60
043
000
0.16
0 16
" 016
40 005 600 00
000
2876712
000
005


Baseline
pounds equiva-
lent
1 715 53
000
29 322 96
288077
000
009
54429
36 682 00
8326
0 10
9,336.58
1 599 1 1
000
000
000
1 262 56
1 131 97
000
0 00
28 573 71
000
78805
0.00
23 681 .45
295
000
0.00
000
146 12
23 532 48
000
184 160 89
026
470 48

345,915.60
Scenario 1 re-
duction pounds
equivalent
35 08
000
27 322 89
1 053 17
000
000
33524
35 312 45
3537
000
150.34
1 053 24
0 00
000
000
36206
131 04
000
0 00
1958940
000
730
000
1 701 98
047
000
000
0 00
14484
22 450 43
0 00
1 567 12
024
51 87

111,304.55
Scenario '
percent
change

0
93
00
37
o
o
62
QR
42
o
1 6
66
0
o
o
29
11
o
o
68
•)
o
0
7
16
0
0
o
99
95
0
1
96
11

32
Scenario 2 re-
duction pounds
equivalent
oc no
0 00
28 61868
1 flfifi fin
0 00
000
375 70
oc enc OH
37 R1
0 00
15034
1 ns^ 94
0 00
0 00
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0 00
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119,143.84
Scenario 2
percent
change

t n
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34
  Note: Numbore may not add due to rounding.
  Sourot; Assessment of Compliance Costs Resulting from Implementation of the Proposed Great Lakes Water Quality Guidance.
  The proposed Guidance would reduce
the toxicity-weighted pounds, or
pounds-equivalent, by about 32 percent
under Scenario 1 and by about 34
porcent under Scenario 2,
4. Cost-effectiveness
  Tha cost-effcctivonoss values are
calculated by multiplying the pounds-
equivalent per day, shown in Table K-
4, with 365 days to derive total annual
pounds-equivalent reduced under each
scenario. Total annualized costs for
direct dischargers in each scenario are
then di^fidud by total annual pounds-
equivalent for each scenario to estimate
tho S/lb-eq. for each scenario. The cost-
ef&ctiveness of all four cost scenarios
ranges from $1.30 per pound-equivalent
to $10 40 per pound-equivalent over the
                      baseline; the cost-effectiveness of the
                      most likely scenario is $2.60 per pound-
                      equivalent. The costs for and pounds-
                      equivalent removed from indirect
                      dischargers are not included in these
                      calculations. When compared with the
                      cost-effectiveness of various effluent .
                      guidelines, these values are at the low
                      end of the range of $1-$500.
                      5. Sensitivity Analysis

                        Two additional analyses were
                      conducted to assess the impact on the
                      cost-effectiveness of assuming that
                      baseline values reported as less than a
                      detectable value equal one-half the
                      reported detection level. The following
                      alternatives for addressing baseline
                      values reported as less than a detection
level (in the absence of a permit limit)
were evaluated:
  a. The reported detection level was
used as the baseline concentration.
  b. Zero was used as the baseline
concentration.
  Using the first alternative resulted in
about a 22 percent increase in total
annual pounds-equivalent removed for
Scenario 1 and about a 20 percent
increase in total annual pounds-
equivalent removed for Scenarios 2-4
when compared to the original analysis.
Cost-effectiveness values ranged from
$1.07 per pound-equivalent to $8,72 per
pound-equivalent,
  Using the second alternative resulted
hi about a 22 percent decrease 'in total
annual pounds-equivalent removed for
Scenario 1 and about a 20 percent

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                  Federal Regist&r  /  Vol.  58/No. .72  / Friday, April 16, 1993 / Proposed Rules
                                                                      20995
  reduction in total annual pounds-
  equivalent removed for Scenarios 2-4
  when compared to the original analysis.
  This assumption yielded cost-
  effectiveness values ranging from $1.68
  per pound-equivalent to $12.87 per
  pound-equivalent for Scenarios 1-4.

  /. Overview of Projected Benefits
  Attributable to the Great Lakes Water
  Quality Guidance

  1. Introduction
   The benefits analysis is intended to
  provide insight into both the types and
  potential magnitude of the economic
  benefits expected to arise as a result of,
 - the GLWQG. A qualitative assessmenfbf
  these benefits is provided in section 1.2
  below. In addition to the qualitative
  assessment, more quantitative empirical
  estimates of the potential magnitude of
•- the benefits from controlling point
  sources are developed to the extent
  feasible and then compared to1 the
  estimated costs  of controlling-point
  sources in the proposed Guidance. This
  discussion is intended to demonstrate
  data needed and a methodology suitable
  for comparing benefits and costs. The
  methodology used to assess benefits and
  its results are summarized below. A
  complete study, Regulatory Impact
  Analysis of the Proposed Great Lakes
  Water Quality Guidance, is available in-
  the  administrative record for this
  rulemaking. EPA invites comments and
  requests that the commenters provide
.  detailed analysis and data to support  .
  their conclusions. The appropriate
  documentation would enable EPA to
 better evaluate these comments,

  2. Qualitative Assessment of Benefits
 Associated With the Great Lakes Water
 Quality Guidance
   This section provides a qualitative
 .review of £he benefits that can be
  expected from implementation of the"
 proposed Guidance. This qualitative
 assessment presents a characterization
 of anticipated benefits based on; (a) The
 sensitivity and unique attributes of the
 receiving waters, (b) the natureof the ...
 toxic pollutants addressed by the.
 GLWQG and some implications of the
 proposed Guidance for human health
 and ecological risk reductions, and (c)
 an overview of exposed and sensitive
 populations.
   a. Sensitivity and Unique Attributes of
 Receiving Waters. Bioaecumulative
 chemicals of concern have been.
 identified for special treatment in the ''.
 GLWQG. EPA believes addressing these
 pollutants will yield particularly high
 benefits given the  sensitivity and
 vulnerability of this aquatic ecosystem.
 Several characteristics of the Great
  Lakes make them particularly
  susceptible to relatively nondegradable,
  lipophilic chemicals, such as some of V
  the contaminants addressed by the Great
  Lakes Water Quality Guidance. These
  characteristics include:
   i. Long hydraulic retention time. (Less
  than one percent of the total volume of
  the Great Lakes drains through the St.
  Lawrence River on an annual basis.
  Retention times range from 173 years for
  Lake Superior to 2.7 years for Lake Erie.)
   ii Low suspended solids
  concentration.
   iii. Low biological productivity.
   iv. The presence of self-contained,
  vulnerable  plant and animal       ,
  populations.
   These attributes result in •
  contaminants remaining in the Great
  Lakes $ystem for long periods of time
  and bioaccumulating in fish and
  wildlife at concentrations that are orders
  of magnitude above those in the water
  column. Continued or new inputs of
 -toxic pollutants only exacerbate this
  problem. However, reductions in
  loadings of pollutants will, over the long
  term, reduce the rate of bioaccumulation
  (see sections LA. and I.D. of this
  preamble for further discussion).
   Because physical and biological
  processes in the Great Lakes encourage
  the recycling of toxics, pollutant
  loadings entering the Great Lakes
  System may be more likely to impact
  Great Lakes' wildlife, human and
  aquatic communities than in other
  ecosystems. Pollutants like the BCCs
  identified in the proposed Guidance
 tend to preferentially sorb to particles in
 the water column, and are subsequently
 transported to the bottom sediments in
 many locations. Because the Great Lakes
 efficiently cycle carbon and nutrients,
 higher trophic levels are exposed to
 many of the chemicals associated with
 biotic particles and create the risk of
 these chemicals bioaccumulating up the
 food chain/Pollutants are also released
 back to the water column as particulate
 matter is degraded by bacterial action,
 posing further risks to the fish and \
 wildlife. Even those particles that do
 reach the bottom sediments are subject
 to resuspension during storm events.
 While concentrations of these
 contaminants in current loadings may
 be expected to decline, the rate of
 decline in the total mass of these
 contaminants for the Great Lakes
 System, will occur much more slowly
. than in systems with shorter hyftraulic
 retention times, or greater sedimentation
 rates (EPA Region V, Great Lakes
 National Program Office, Great Lakes
 Risk Characterization Study, Review
 Draft, Chicago, IL, 1991). Accordingly,
 any new discharges of bibaccumiilative
 pollutants of concern will add to food :
 web contamination and prolong the
 time for the full restoration of beneficial
 uses of the Great Lakes and^   -^
 unacceptable levels of risk to human,
 wildlife and aquatic populations which
 utilize the Great Lakes Basin Ecosystem.
  1 For a number of years, the monitored
 concentrations of bioaccumulative   .
 chemical contaminants have declined in
 Great Lakes fish. Based on a review of
 lake trout and coho salmon data
 collected through 1990, however, it
 appears that the rate of decline in
 contaminant concentrations in fish
 tissue is slowing, and approaching zero
 (EPA Region V, 1991). Additionally,
 these data show; that fish tissue
 concentrations are stabilizing at
 unacceptabiy high concentrations,:-   '
 despite the decreased loadings resulting
 from previous regulatory actions.
 Contaminant concentrations measured
 in 1990 for PGBs and chlorinated
 pesticides exceed fish tissue  ,
 concentrations allowable .under current
 EPA water quality criteria, by several
 orders of magnitude. If, as the data
 suggest, a new equilibrium in ambient
 water quality and fish tissue
 concentrations is being reached given'
 current loading rates for these
 pollutants, then substantial further .-'••-
 reductions in loadings may be necessary
 to achieve fish tissue concentrations
 that would provide for the lifting of fish
 advisories and bans imposed at present
 in the Great Lakes region (EPA Region
 V, 1993).
  Finally, in recognizing the sensitive
 nature of the Great Lakes System,
 recommendations calling for special,.
 more restrictive measures for toxic
 pollutants will be consistent with the
 Greatlakes Water Quality Agreement
 goal of virtual elimination of persistent
 toxics, the Great Lakes Governors'
 Toxics Substance Control Agreement ,
 calling for continued reduction of toxics
 in the Great Lakes System to the
 maximum extent possible consistent
 with the Clean Water Act and Great
 Lakes Water Quality Agreement, and the
 fishable goal of the CWA. In addition to
 the purely ecologicbenefits associated-
 with reductions'in loadings of  .     '
 bioaccumulating toxics, these
 reductions will generate significant
benefits associated with improved
 opportunities for human uses of the
 fishery and related resources: increased .
recreational fishing and hunting
 opportunities, the potential fpr-c-  -  - ,-,.
 commercial fishery expansion; and
increased opportunities ahdV values to
 other recreational users of Great Lakes
basin waters.
  b; Nature of Toxic Pollutants
Addressed by the GLWQG and:   ;1:   "

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20996
Federal Register / Vol. 58, No.  72 / Friday, April  16,-'199-3 /* Proposed Rules
Implications for Risk Reduction. The
benefits of controlling discharges under
tha proposed Guidance depend on the
characteristics of the specific pollutants
that are reduced. A number of these
pollutants (those associated with control
                      of point source discharges), and
                      associated health and ecological risks,.
                      are summarized in Table IX-5. This
                      table illustrates several key points:
                        i. All compounds are highly
                      persistent, implying that future
reductions hi loadings will yield long-
term benefits. However, for the same
reason, current ambient conditions, due
to past loadings, are likely to delay the
realization of benefits for manv vears
into the future
                                                   -i	- • i,  * • •„ -

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         Federal Register /.Vol. 58, No. 72 /Friday, April 16, 1993 /Proposed kules
                                                                                                 120997
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-------
20998         Federal Register / VoL 58. No. 72  A Friday,  April 16, 1993-/ Proposed Rules
  ii. Half the compounds have a
relatively high potential for
Moacctanttlation. The implications are
consistent with those raised above with
respect to the persistence of the toxics—
®,g., even if all future loadings are
eliminated and reductions in water
column and sediment concentrations
are realized, it will take many years for
tissue concentrations of these pollutants
to decline in impacted biota to the point
where residual risks have been
minimized.
  iii. Dioxin and PCBs are considered
probable human carcinogens via
ingest ion, and both also are associated
with systemic (i.e., noncarcinogenic)
health risks. Cadmium, cyanide and
mercury also are of high concern for
systemic human health risks (kidney
and central nervous system). While
human health risk reductions may not
ba tho primary motivation for the
CLWQG, the potential for reducing
these risks may be appreciable.
Furthermore, because noncarcinogenic
effects of the contaminants are
presumed to exhibit threshold dose-
response functions, it is more difficult
to quantify reductions in these types of
risks than it is to quantify carcinogenic
risks.
  Iv. Most of the toxics addressed in the
GLWQG pose relatively high risk to
aquatic and terrestrial organisms, both
to tho survival of living organisms and
thek reproductive capacity. These risks
imply that the primary benefits of the
GLWQG will be related to ecologic
concerns. The toxics controlled by the
GLWQG pose risks to species of concern
and value apart from direct
consumptive use for recreation,
commercial or other such purposes. For
example, bald eagles, osprey,
cormorants, mink, otter and other
important piscivorous species are likely
to face reduced mortality risk and
increased breeding success if the levels
of the compounds are reduced in the
Groat Lakes environment. The resulting
benefits to society extend beyond more
commonly measured consumptive use
values and include nonuse or intrinsic
benefits, (nonconsumptive and indirect
use benefits also are relevant) and
option values (which are also
considered, in most circles, as a form of
us® value).
  Tho persistence and toxicity of the  -
compounds to be directly controlled
from point sources under the GLWQG
have important implications for the
benefits analysis. The principal benefits
exhibit characteristics that make them
less amenable to empirical evaluation
than benefits for other EPA actions
because: (l) Temporally, most of tha
direct benefits are likely to be delayed
 for many years, and (2) structurally, the
 benefits are largely of the ecologic or
 nonuse variety.
   c. Overview of Exposed and Sensitive
 Populations. The potential for
 significant health risk reduction benefits
 exists for certain populations who may
 be unaware of or ignore fish
 consumption advisories. For example,
 Native American .tribes in the Great
 Lakes basin also tend to consume a
 greater amount of local fish than the
 general population, and thus are at
 greater risk than the average exposed
 population for any associated health
 effects. East Asian populations such as
 the Hmong who rely heavily on
 subsistence fishing, and for many of
 whom English is a second language,
 may be particularly vulnerable to
 exposing themselves to toxic  •
 contaminants in fish. Finally, while
 advisories warn against consumption,
 many anglers consume recreationally-
 caught fish in excess of the
 recommended quantity. All of these
 populations will benefit from reduced
 health risks as the concentrations of
 toxic compounds in fish decrease.
   d. Conclusions. The benefits
 associated  with the proposed Great
 Lakes Water Quality Guidance may be
 substantial due to the significant health
 and ecologic risks posed by the
 chemicals addressed by the proposed
 Guidance, when combined with
 physical characteristics of the Great  .
 Lakes that cause them to be particularly
 vulnerable to bioaccumulative toxic
 pollutants. Given the long retention
 time, low sedimentation, low .
 productivity in the Great Lakes System
 and presence of-self contained,
 vulnerable populations (and hence the
 persistence of toxic contaminants in this,
 ecosystem), loadings reductions realized
 as a result of the GLWQG are expected
 to have lasting impacts on mortality risk
 and the reproductive success of many
 aquatic, avion, and mammalian species
 of concern. These benefits include
 increased productivity and protection of
 biological diversity,of Great Lakes
 species including salmonids and other
 fish species, cormorants, eagles, osprey,
 and otters.   -.-..-•
 "  Fish arid waterfowl consumption
• advisories are likely to be lifted as •
 concentrations of toxic compounds are
 reduced. Such actions, and water   ••
 quality improvements leading to those
 actions, would result in increased
 recreational fishing and hunting
 opportunities and increased values for.
 recreational fishing and hunting days.
 According to the U.S. Fish and Wildlife
 Service's 1985 National Survey of
 Fishing, Hunting, and Wildlife-        :
 Associated Recreatioa (U.S. Department
 of the Interior, Washington, B.C., 19891
 the Great Lakes supported more than 46
 million angler days in that year. Even a
 small increase in the-number of angler
 days or the value associated with
 improvements in Great Lakes angling
 would provide significant annual
 benefits. Other recreational
 opportunities, including boating,
 swimming, and wildlife observation-
 would also be expected to be enhanced
 as water quality and ecosystem health
 improve. Health risk reduction benefits
 are likely to be generated through
 reduced exposure via the following
 pathways: fish consumption
 (particularly among subsistence
 populations relying on Great Lakes fish
 and wildlife as a primary food source),
 ingestion of contaminated drinking
 water, and incidental forms of exposure
 to contaminants through recreational
 activities such as swimming. The value
 of these improvements touch not only
 direct users of the Great Lakes, but also
 nonusers who ascribe values to the
 ecologic benefits resulting from the
 implementation of the proposed
 Guidance.       ,

 3: Economic Concepts Applicable to: •
 Quantitative Benefits Analysis
 a. The,Economic Concept of Benefits.
 The term economic benefits refers to the
 dollar value associated with all of the
 expected, direct positive impacts of the
 Initiative; that is, all GLWQG outcomes .
 that lead to higher social welfare.
 Conceptually, the monetary value of
 benefits is embodied by the sum of the
 predicted changes in consumer (and  -
 producer) surplus. These surplus-
 measures are standard and widely  •
 accepted terms of applied welfare
 economics, and reflect the degree of
 well-being enjoyed by people given
 different levels of goods and prices  '
 (including those associated with  .  -.,
 en vironmental quality).          '

  This conceptual economic foundation
 raises three relevant issues and potential
 limitations for the benefits, analysis of
 the GLWQG. First, the standard
 economic approach to: estimating
 environmental benefits is •      -
 anthropocentric—all benefit values arise
 from how environmental changes are
 perceived and valued by humans.   ;
 Second; benefits of all future outcomes
 are valued by the present-day human
 population. Third, all near-term as well
 as temporally distant future physical  ,
 outcomes associated with reduced
 pollutant loadings need to be predicted --
, and then translated into the framework . -
 of present-day human activities and
 concerns.

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Federal Renter / Vol. 58, No. 72 ;/ '
                                                               'April '16, "LQ&X / Prdposed "Rules
                               20999
   b. Benefit Categories Applicable to the
 GLWQG. EPA divides the potential
 benefits associated with the GLWQG
 into two broad categories: use benefits
 and nonuse benefits (also referred to as
 passive use, or intrinsic benefits}. The
 use benefit category can embody both
 direct and indirect uses of the impacted
 waters, and the direct use category  •
 embraces both Consumptive (e.g.,
 fishing} and non-consumptive (e.g.,
 wildlife observation) activities. In most
 applications to pollutant reduction
 scenarios, the most prominent usa
 benefit categories are those related to
 ^recreational fishing, boating and/or
 'swimming.
   Whether or not recreational use
 benefits reflect society's prime
 motivation for environmental protection
 measures is unclear; however^
 recreational activities are amenable to
 various non-market valuation         -
 techniques (e.g., travel cost models) and,
 accordingly, have received considerable
 empirical attention from economic
 researchers' over the past two decades.
 Thus, there is a considerable body of
 knowledge relating to recreational
 fishing and related activities,, and these
 generally indicate that water-based
 recreation is a highly valued activity in
 society. Accordingly, many benefits-
 analyses focus on recreational values •
 because they are well understood, there
 is a large body of empirical research to
 draw upon, and the associated benefits
 tend to be quite large>
   Improved environmental quality can
 be valued by individuals apart from any
 past, present or anticipated future use of
 the resource in question;  Such rtomise
 (or passive use) values may be of a
 highly significant magnitude; but the
 benefit value to assign: to these   .
 motivations often is a matter of    .
 considerable debate. Whereas, human
 uses of a resource- can be observed
. directly and valued with a range of
 technical economic techniques, non-use
 values can only be ascertained from-'
 directly asking survey respondents to
 reveal their values. The inability to rely
 on revealed behavior to ascertain non-
 use values has led to-debates as to
 whether they exist for applicable '
 changes in environmental quality and, if
 so, whether they are of an, appreciable
 magnitude relative to use values. As
 described below, there is reason to
 anticipate that non-use benefits are
 relevant and may be appreciable for the
 proposed Guidance.
   Among the rnors relevant non-use
 values associated" with the GLWQG, are-
 ecological benefits associated with,
 decreasing the level of toxic compounds-
 found in Great Lakes waters and
 sediment. Such ecological benefits' are   .
                      likely to embody reduced risks, of direct
                      mortality, arid increased reproductive
                      success, in a range of important fish and
                      wildlife species. The species include,
                      but are not limited to; bald eagles,
                      cormorants, and other piscivorous avian
                      species; mink, river otter and other
                      mammalian species that feed on fish
                      and crustaceans; an
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21000	federal Register / Vol. 58, No.. 72 "I Friday, April 16. 1993"/'Proposed Rules
progress, or anticipated, absent the
GLWQG. Therefore, there is an
important distinction between present
observed conditions, and the conditions
that reflect the relevant baseline for the
GLWQG.
  Benefit analyses can be designed to
measure actual or theoretic changes in
water quality conditions. In both cases,
there must be a well defined baseline
condition beyond which«the value of
water quality improvements can be
measured. In this instance, the
establishment of a baseline level of
water quality conditions upon which
the benefits of the GLWQG should be
measured must be ascertained to
estimate the benefits relevant strictly to
the GLWQG. Benefits of improvements
expected to occur as a result of current
requirements need to be distinguished
from the benefits for which will accrue
as the results of the implementation of
tho final Great Lakes Guidance. In some '
instances, distinguishing between the
two la relatively straight forward. At
other times, several assumptions must
be made and believed to allow the two
stages to be distinguished from one
another.
  One approach for attributing benefits
to the GLWQG is to discern how toxic
loadings reductions will change from
present conditions to the WQG-relevant
baseline, and then from this baseline to
tha post-GLWQG loadings.
Unfortunately, the absence of loadings
data for all potential sources of toxics
(i.e., point and nonpoint sources) does
not allow for an assessment of the
results of the GLWQG to present
conditions. However, point source
loadings reduction estimates due to the
GLWQG relative  to expected loadings
that would be observed subsequent to
compliance with current regulatory
requirements indicate a substantial
reduction in tojdcity-weighted loadings
of pollutants could be achieved. Thus,
while the GLWQG will have a
significant impact relative to loadings at
its baseline, we have no empirical
information with which to discern how
this reduction compares to differences
that may exist between present
conditions and the GLWQG-relevant
baseline. The absence of this data makes
it difficult to attribute benefits to the
GLWQG  on the basis of changes in
loadings  with any certainty.
  d. Contingent Valuation Method
Issues, The empirical results presented
at the casa study analyses utilize
benefits estimates from relevant
research  on water quality
improvements. Several of these
estimates include results derived from
contingent valuation methodology
(CVM) (as well as Jhe travel cost
methodology (TCM) and other
techniques). CVM is an approacn in
which hypothetical markets are
constructed and presented to^
individuals in a survey format, with the
responses used to infer prices and
values for the goods and services being
evaluated (such as those associated with
different levels  of environmental
quality). Because the CVM approach
relies on survey responses to
hypothetical conditions and markets,
CVM is considered a potentially biased
approach to estimating benefits.
  In particular, there is an inherent
degree of skepticism among some
economists regarding the accuracy of
results derived from the CVM approach
relative to those derived from economic
research methods that rely on revealed
human behavior, such as TCM.
Likewise, where there  are no means of
relying on revealed behavior as a '
possible benchmark for accuracy and
validity, such as in estimating nonuse
values with CVM, the approach has
been the subject of considerable  debate.
The issues  surrounding the general
validity of the CVM approach are
discussed in the RIA, and have been the
subject of peer reviewed economics
literature for more than a decade (see,
for example, R.G. Cummings, D.S.
Brookshire and W.D. Schulze, Valuing
Environmental Goods, Rowan and
Allanheld,  Totowa, N.J., 1986; R.G.
"Cummings  and G.W. Harrison,
Identifying and Measuring Nonuse
Values for Natural and Environmental
Resources:  A Critical Review of the
State of the Art, Final Report, April
1992). Scholarly insights from a broad
range of relevant disciplines, including
psychology and statistics as well as
economics, have also been brought to
bear on defining appropriate approaches
to developing, implementing, and  '
interpreting state-of-the-art,
professionally credible CVM
instruments and results (e.g., R.C,
Mitchell and R.T. Carson, Using Surveys
to Value Public Goods: The Contingent
Valuation Method, Resources for the
Future, Hopkins University Press,
Washington, DC, 1989).
  As in any economic research
technique,  the credibility, accuracy, and
robustness  of CVM-derived results
depend entirely on the research  protocol
applied by the practitioners in designing
and implementing the CVM survey
instruments, Poorly designed and
executed CVM surveys are likely to  '"
generate results that may be biased and
misleading. However,  careful design
and implementation of surveys allow
researchers to test for (and account for)
potential biases and embedded values.
In brief, each CVM study.must be.
evaluated and interpreted on its own
merits; tnere are many nigh quantj
CVM research efforts that provide
credible and reliable information;
Accordingly, among numerous
academic and applied economic
researchers, CVM is recognized as
capable of providing robust and credible
benefits estimates.
  Indeed, a NOAA Blue Ribbon Panel
review (K. Arrow, R, Solbw, i-.R.
Portney, E.E. Learner, R. Radnerv and H.
Schuman, Report of the NOAA Panel on
Contingent Valuation, U.S. Department
of Commerce, National Oceanic and
Atmospheric Administration, Rockville,
Maryland, 1993)  of CVM to measure
nonuse values concluded that CVM can
produce reliable estimates for use in the
litigation process to determine natural
resource  damages. The panel set forth a
number of guidelines for CVM'survevs
The guidelines address survey design
(including the recommendation of a
personal interview format); elicitation
format (including the recommendation
of a conservatively designed referendum
eliciting willingness to pay (WTP) and
checks on understanding and
acceptance); and additional issues that
CVM surveys should explicitly address
(e.g., the warm glow of giving effect).
The Panel maintained that use of these
guidelines will generate more reliable
results.
  The NOAA panel evaluated CVM as a
means of estimating nonuse values for
use in litigation to determine the
liability of a specific party rather than  •
for use in a public policy setting. Thus,
the applicability of the standards set by
the Panel to analysis of regulatory
impacts should be evaluated
considering that the estimates are used
in an informational context, to compare
benefits to costs. Failure of the CVM
studies utilized in the case studies
analyses to conform to all of the NOAA
recommendations should therefore not
automatically preclude them from being
considered as a source for benefits
information.
  i. Using CVM to Estimate Use
(Recreational) Benefits The issues
associated with using CVM for use
values (e.g., recreational benefits) are
somewhat distinct from those of
estimating nonuse values. Since
recreational activities are amenable to
various non-market valuation
techniques, one means of assessing the
accuracy of CVM results for estimating
use values is to compare results of CVM
research for use benefits With those for
other valuation methods which rely on
revealed behavior (e.g., TCM,; hedonic
pricing). Examples can be found in the •
comparative reviews of R.G. Walsh
'D.M. Johnson, and J.R McKean

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                 Federal  Register /Vol. 58, No. 72  /  Friday,  April 16, 1993  /  Proposed Rales
                                                                    21001
 (Nonmarket Values From Two Decades
 of Research on Recreation Demand,
 Advances in Applied Microeconomics,
 Vol. 5, V. K. Smith arid A.N Link (eds),
 JAI Press Inc.,1990); Cummings,
 Brookshire, and Schulze (1986); and A. r
 M. Freeman .(The Economics of Valuing
 Marine Recreation: A Review of the >,
 Empirical Evidence, Draft Report to
 OPPE/USEPA, Washington, D; C.,1992).
 These studies reveal that the accuracy of
 both types of methodologies depends
 heavily on the study design, ana both
 iriethodologies can produce wide
 ranging estimates as a result.
, Furthermore, (JVM studies of recreation
 use benefits have performed reasonably
 well when compared to the available
 evidence from travel behavior, actual
 cash transactions, and controlled       :
 laboratory experiments.            :   .
   ii. Using CVM to Measure Nonuse
 Values. CVM provides a method for
 directly eliciting nonuse values where
• there do not appear to be direct market
' transactions or indirect methods based.
 on market behavkfr available to reveal ,
 these values. Indeed, CVM's greatest
 asset is its potential to measure any
 benefit category. As is the case with use
 values, efforts to measure nonuse values
 by CVM must be thoughtfully
 conceived, well designed, and carefully
, implemented. Where testable (recreation
 values only), estimates for use values
 from high quality. CVM studies have
 been found to compare favorably with
 results obtained from other accepted
 valuation methods. Providing similar
.test results for nonuse values has proved
 difficult, and thus critics of the CVM
 approach have questioned the reliability
 of CVM in estimating nonuse values for
 which alternate measures of comparison
 are difficult, if not impossible, to
 construct. While the NOAA Panel found
 the criticisms of CVM to take on added
 importance in light of this absence of
 alternate measures with which to
 compare the .estimates, it recognized
 that this problem would be inherent in
 any method of estimating nonuse
 values,     .                      '
 5.:Cost-Effectiveness of theProposed
 Guidance at Three Sites . :•
 •  For each of the. three case studies (Fox
 River/Green Bay, WI; Saginaw Bay, MI;
 and Black River, OH), loadings
 reductions were estimated for cost
 scenarios 1 and 2 using the approach
 outlined earlier. These, loadings were
 then converted into toxicity-weighted  .
 pounds (or pounds-equivalents).
 Pounds-equivalent per day were
 multiplied by 365 days to obtain annual
 reductions in the loadings.  Total
 annualized costs for .Scenarios 1 and .2
.were then divided by the total annual
reductions in toxkaty-weighted pounds
to obtain $ per pound-equivalent.  -.-.-•.
  The cost-effectiveness values for all
four Scenarios in the Fox Raver case
study range between $0.80 per pound-
equivalent and $4.02 per. pound-
equivalent over the baseline. The cost
effectiveness for the most likely
scenario, Scenario 2, is $146 per pound
equivalent. The cost-effectiveness for
the Sagiriaw Bay case study is between"
$1.70 per pound-equivalent and $22.50
per pound-equivalent over the baseline
for all four scenarios. The cost-
effectiveness for the most likely scenario
is about $4.62 per pound-equivalent
over the baseline. The cost-effectiveness
of all four scenarios for the Black River '.
case study range between $8.08 per
pound-equivalent and $164.73 per   "'
pound-equivalent over the baseline. The
cost-effectiveness of the most likely      '
scenario is $22 41 per pound-
equivalent. The results of these analyses
are presented in more details in the
Regulatory Impact Analysis of the :
Proposed Great Lakes Water Quality    ;
Guidance,

6 > Future Analysis   :

  The discussion above provides useful
insights into the potential impacts of the
proposed Guidance. It also indicates
areas in which additional analysis and
research may be useful for strengthening
our understanding of the GLWQG, the
Great Lakes Basin Ecosystem, and,
poh'cy analysis in general. Areas which
the EPA will consider for future
analyses include:
  a. Obtain more information and
conduct more sophisticated analyses to.
estimate the appropriate baseline for
analyzing the GLWQG, and the
improvements beyond that baseline
attributable to the GLWQG. These
efforts might focus on pollutant
loadings, the -physical/chemical
properties 6f receiving waters,  and
aquatic ecosystem impacts. This would
help define more reliable means for
assigning benefits to the GLWQG than
has been attempted in these case  "
studies.
  b. Expand the effort to encompass a
broader array of case study sites.  The
benefits and costs of water quality
improvements are highly site-specific.
The analysis can be broadened to
portray this, and establish a framework
by which information from case studies
can be used to represent aggregate
benefits of the GLWQG.    ,
  c. Incorporate Monte Carlo or Other
Sensitivity Analysis Techniques into the
analysis to more clearly and insightfully
portray the uncertainties in the results,
and the extent to which the assumptions
 necessary to conduct the analysis ."•...
 influence the outcomes.     '   v
   d. Broaden the perspective of the case
 studies to examine and properly
 account for the full suite -e£
 environmental actions necessary to ,  ;
 realizing important threshold-like
 improvements in water quality. Benefits
 typically accrue only when discrete
 changes in the environment are realized,
 and such changes generally arise as a...
 joint product of several efforts     v
 implemented over a course of time (e.g.,
 nonpoint source controls as well'as
 point sourca controls may both be
 required to attain fishable waters). The
 case study approach is a valuable tool
 for clearly identifying and assessing
 these multiple program arid associated
 benefits apportionment issues.
   e. Define, assess and interpret options
 for explicitly addressing the issue of
 how to portray arid account for long-
 term ecologic benefits in a benefit-cost
.analysis such that it appropriately
 balances normative concerns within a
 positive analytic paradigm.
   The results of additional analyses will
 be placed in the record.      ,
  • This proposed rule was submitted to"
 the Office of Management arid Budget
 for review as required by Executive
 Order 12291.

 X. Regulatory Flexibility Act
   Under the Regulatory Flexibility Act
 (RFA), 5 U.S.G. 601 et seq., EPA must
 prepare a;Regulatory Flexibility'
 Analysis for regulations having a
 significant impact on a substantial
 number of small entities. The RFA
 recognizes three kinds of small entities
 and defines them as follows:
—Small governmental jurisdictions—
   any government of a district with a  .,.
   population of less than 50,000.
—Small business—any business which
   is independently owned and  operated
   and not dominant-in its field as
••;  defined by Small Business
.   Administration regulations under
   Section 3 of the Small Business Aci,
 -^Small organization—any not-for-profit
   enterprise that is independently
   owned and operated and not
 \ dominant in its field. >;   •
   As discussed in section IX above,
 small facilities are projected to incur
 less than $3,300 per facility to comply
 with the requirements in the proposed
 Guidance. These costs are not expected
 to impose economic burdens on small
 facilities. Accordingly, I certify pursuant
 to 5 U.S.C. 605(b) that the proposed  -"„
 Guidance, if implemented, will not have
 a significant impact ;qn a substantial
 number of small entities and.that a
 Regulator* Flexibility Analysis, .-,.-.,.

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21002
federal Register /  Vol.  58, No. 72 / Friday, April 16, 1993 /Proposed Rules
therefore, is unnecessary. After the
proposal, EPA is planning to conduct a
moro detailed economic analysis and
Will reconsider this determination, if
warranted.
XI Paperwork Reduction Act
  Tho Information collection
requirements la this proposed rule have
boon submitted for approval to OMB
imdor th0 Paperwork Reduction Act, 44
U.S.C. 3501 et seg. EPA has prepared an
Information Collection Bequest (ICR)
document (ICRNo. 1639.01). Copies of
tho 1CR may be obtained by writing
Sandy Farmer, Information Policy-
Branch, EPA, 401M St., SW. (PM-
223 Y), Washington, DC 20460, or by
calling (202) 260-2740.
  Tho public reporting burden for this
collection cf information is estimated to
ba 80,283 hoos for the 3,795
pannlttees, or aa average 18,2 hours.
  Sand comments regarding the burden
estimate or ar.y other aspect of this
collection cf information, including
suggestions for reducing this burden to
Chief, Information Policy Branch. PM-
223Y, U.S. Environmental Protection
Agency, 401M St. SW., Washington,
DC 20460; and to the Office of
InfornjiaJion and Regulatory Affairs,
QfficfljfCManagementand Budget,
WasBiigton, DC 20503 The final rule
Will respond to any OMB or public
comments on the .information collection
requirements contained in this proposal.
Xtt Judicial Review of Provisions not
Amended
  In some situations, EPA is proposing
renumbering or other editorial changes
to regulations that have already been
promulgated, or to provide for ease in
reading proposed changes is repeating
an entire section, including the portions
not changed. The proposal and
promulgation of these regulations  does
not provide another opportunity to seek
judicial review on the substance of these
regulations.
XHI. Supporting Documents
  All documents that are referenced in
this preamble are available for
inspection and photocopying in the
administrative record for this
rulemaldng at the address listed at the
beginning of this preamble. A
reasonabfe fca will be charged for
photocopies.
  Tha documents listed below are also
BVftllablo for a fee upon written request
or telephone call to the National
Technical Information Center (NTIS),
US, Department of Commerce 5285
Port Royal Road, Springfield, VA 22161
Tho toll fre« number is 800-33,6-4700
and the local number is 703-487—4650
                      Alternatively, copies may be obtained
                      for a fee upon written request or
                      telephone call to tho Educational
                      Resources Information Center/
                      Clearinghouse for Science, Mathematics,
                      and Environmental Education (ERIC/
                      CSMEE), 1200 Chambers Road, room
                      310, Columbus, Ohio 43212 (phone
                      number: 614-292-6717). When
                      ordering, please include the NTIS or
                      ERIC/CSMEE accession npnber.
                        A. Great Lakes Water Quality
                      Initiative Criteria Documents for the
                      Protection cf Aquatic Life in Ambient
                      Water. NTIS Number: PB93-154656.
                      ERIC Number: 3900.
                        B. Great Lakes Water Quality
                      Initiative Technical Support Document
                      for the Procedure to Determine
                      Bioaccumulation Factors, NTIS Number:
                      PB93-154664. ERIC Number: 3910.
                        C. Derivation of Proposed Human
                      Health and Wildlife Bioaccumulation
                      Factors for the Great Lakes Initiative.
                      NTIS Number: PB93-154672. ERIC
                      Number: 3920.
                        D. Great Lakes Water Quality
                      Initiative Criteria Documents for the
                      Protection of Human Health. NTIS
                      Number: PB93-154880. ERIC Number:
                      3930.
                        E. Great Lakes Water Quality Initiative
                      Technical Support Document for
                      Human Health Criteria and Values, -
                      NTIS Number: PB93-154698. ERIC
                      Number: 3940.
                        F. Technical Support Document: •
                      Establishment of Ambient Screening
                      Values Under the Great Lakes Water
                      Quality Initiative. NTIS Number: PB93-
                      154706. ERIC Number 3950.
                        G. "Analysis of Acute and Chronic
                      Data for Aquaticlife," Host, G.E., R.R,
                      Regal, and C.E. Stephen, ,1-4-91 draft.
                      NTIS Number: PB93-154714. ERIC
                      Number 3960.
                        H. Great Lakes Water Quality
                      Initiative Criteria Documents for the
                      Protection of Wildlife. NTIS Number;
                      PB93-154722. ERIC Number. 3970.
                        I. Assessment of Compliance Costs
                      Resulting from Implementation of the
                      Proposed Great Lakes Water Quality
                      Guidance. NTIS Number. PB93-154730.
                      ERIC Number 3980
                        J. Regulatory Impact Analysis of the
                      Proposed Great Lakes Water Quality
                      Guidance. NTIS Number PB93-154748.
                      ERIC Number 3990,

                      Appendix to the Preamble—Great
                      Lakes Water Quality Initiative
                      Technical Support Document for
                      Wildlife Criteria      .
                        Note: This appendix to part 132 contains
                      .background material and material intended
                      to clarify portions of the regulation. It does
                      not establish any additional regulatory
                      requirements.               ..-.•'•
I. Introduction
;  The waters of the Great Lakes System
provide vital resources not only to
support numerous critical human
activities and habitat for aquatic
organisms, but also to sustain viable
mammalian and avian wildlife
communities. In order to assure that the
quality of the waters in the System are
adequate to support these uses, specific
water quality criteria need to be set.
  The purpose cf establishing water
quality criteria for wildlife is to
determine surface water concentrations
of toxicants that will remain protective
of avian and mammalian wildlife
populations that utilize waters,of the
Great Lakes System as a drinking and/
or foraging source. Specifically, each
criterion is the highest calculated ,
aqueous concentration of a toxicant
which causes no significant reduction in
the viability or usefulness (in a
commercial or recreational sense) of a-
population of exposed animals over
several generations. For the purpose of
these regulations, this concentration is
called the Great Lakes Wildlife Criterion
(GLWC).
  Ideally, a safe concentration of a given
pollutant would be calculated for every
species and the GLWC would be
determined based on the distribution of
these values across all species (an
approach similar to that used in
deriving criteria to protect aquatic life,
Stephen et aL,  1985,).Therefore, an
approach similar to that proposed to
derive a noncancer human health
criterion (section ffl.C.3 of appendix C
to part 132 of this rule. Methodologies
for Development of Human Health
Criteria and Values) was used in which
representative wildlife species were
selected to establish the basis for
employing interspecies unqertainty
factors for extrapolation of toxicity data
and to define specific exposure
parameters. Five Great Lakes basin
wildlife .species representative of avian
and mammalian species resident in the
Great Lakes basin which are likely to
experience significant exposure to
contaminants through the aquatic food
web were identified. These species are
the bald eagle, osprey, belted kingfisher
mink, and river otter. A Wildlife Value
(WV) is calculated for each
representative species (which is a safe
concentration of a given pollutant) and
then the geometric mean of these values
within each taxonomic class is
determinetLThe GLW'C is the lower of
two class-specific means.      .  •  , .
  To derive the WVs from whkh the
GLWC is determined, scientific
literature for the toxicant of concern is
reviewed for mammalian and. avian.    .

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                Federal Register / Vol. 58, No.  72 /Friday, April 16, 1993 / Proposed Rules
                                                                    21603
toxicity studies that meet the minimum
toxicity database requirements. A tiered
approach, is used in the derivation of -
these criteria. Tier I values are
developed for chemicals with databases
providing a high level of certainty in
quantifying concentrations at which
adverse effects may be experienced by
the avian and mammalian wildlife
communities. EPA is proposing four
specific Tier I criteria that will be
applicable across the Great Lakes
System. States and Tribes will be
expected to adopt into regulation these
criteria (or more stringent values). They
will also be expected to adopt the
procedure for developing Tier I values
for additional substances. EPA
encourages States and Tribes to adopt
these Tier I values as criteria.
   Chemicals with less extensive data, or
where the level of certainty is less, are
subject to Tier E values. States and
Tribes will be expected to adopt, by
regulation, the procedure for developing
Tier II values, rather than the numeric
values the procedure generates.
 H. Calculation of Wildlife Values for
 Tier I Criteria and Tier II Value
 Development     .      /    :'

 A Derivation of Equation
   The equation used to calculate
 Wildlife Values (WV), and ultimately  .
 the GLWC, has both a hazard and
 exposure component. The hazard      :
 component contains the NOAEL—the  .
 highest tested dose of a substance which
 does not result in an observed adverse
 effect. The exposure routes considered
 in this derivation are food and water
 ingestion. The intake level is dependent
 .on organism size and therefore it is  ,
 scaled to body weight. The total toxicant
 intake through these exposure routes is
 detennined and then set equal to the
 NOAEL as follows:
 Toxicant intake through drinking
     water=(WVxWA)/WtA (Equation 1)
   Toxicant intake through  ,
     food=(WVxFAxBAF)/WtA (Equation
     2)       ;  , ,-"_:  -..     •  -•;•  ..
   Where:         '      '.
   Wy=Wildlife value in milligrams of
                                                                                - substance per liter (mg/L).
                                                                               WA=Average daily volume of water  ..
                                                                                 consumed in liters per day (L/d) by
                                                                                 the representative species identified
                                                                                 for protection or the species
                                                                                 identified as. requiring greater :
                                                                                 protection.
                                                                               FA=Average daily amount of food
                                                                                 consumed in kilograms per day (kg/
                                                                                 d) by the representative species
                                                                                 identified for protection -or the
                                                                                 species identified as requiring
                                                                                 greater protection.
                                                                               BAF=Aquatic life bioaccumulation
                                                                                 factor for wildlife in liters per
                                                                                 kilogram (L/kg). Chosen using
                                                                                 guidelines for wiloUife presented in
                                                                                 appendix B to part 132 of this rule,
                                                                                 the Methodology for Development
                                                                                 of Bioaccumulation Factors.
                                                                               WtA=Average weight in kilograms  (kg)
                                                                                 for the representative species
                                                                                 identified for protection or the
                                                                                 species identified as requiring
                                                                                 greater protection.          -
                                                                               Equations one and two are combined
                                                                             to yield Equation three.
                          NOAEL > (WV x WA) / WtA + (WV x FA x BAF) / WtA
                                                                 (Equation 3)
 Where:
. NOAEL=No observed adverse effect
     level in milligrams of substance per
                                          kilogram of body weight per day
                                          (mg/kg - d) as derived from
                                          mammalian or avian toxicity
                                         , .studies.
                                         Factoring and rearranging produces:
                                           wy<  NOAELXW.,
                                              ,   ; WA+[FAXBAF]
                                                                (Equation 4)
  To account .for differences in toxicity
 among species, the NOAEL is  .
 multiplied by the species sensitivity
 factor; SSF. The final equation for the
 WVis:        -""    -
                                                [NOAEL x SSF] xWtA
                                                                                                  -...  " (Equation 5)
 B. Weight of the Test Animal,
 Representative Species, or Species
 Requiring Greater Protection      ,
  The weight of the test animal may be
. needed to convert the NOAEL
 determined in the study to the correct
 units for use in the equation to derive
 a Wildlife value. If a species is identified
 as requiring greater protection said is.not
 one of the representative species, its
 weight is needed for calculation of the
, GLWC. If this information is not given
in the chosen study, the average weight .
 of the test species shall be detennined
 from available literature, including, if
, necessary, metabolic rate models, such
 as those .presented by Nagy (1987), and
 discussed further, below.

 C. Drinking and Feeding Rates for the
 Test Animal or Species Requiring
 Greater Protection '";      .

   A feeding and drinking rate for a
 species identified as requiring greater
 protection and which is not one of the
 representative species identified for " -
                                                                             protection may also be needed for
                                                                             calculation of the GLWC. These rates are
                                                                             needed to accurately predict exposure.
                                                                             When consumption rates are given in
                                                                             the study of choice, they may be
                                                                             substituted directly into the equation. If
                                                                           .  this information is not available from,
                                                                             the chosen toxicity study, it shall be  •"
                                                                             obtained from other appropriate      '
                                                                             Hterature concerning the species. In
                                                                             some instances, however, this     :
                                                                             information is not available directly and
                                                                             needs to be estimated. The following

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 21004
'Federal Register /-Vol. 58, No. 72V Friday, AprillB, 1993 / Proposed Rules
 reference may be consulted for studies
 dona with domestic laboratory animals:
 Registry of Toxic Effects of Chemical
 Substances (National Institute for
 Occupational Safety and Health, the
 latest edition).
   When insufficient data exist for other
 mammalian or avian species, the
 allometric equations presented in
 appendix D to part 132 should be used
 to approximate the needed feeding or
 drinking rates. These equations were
 adopted from Calder and Braun (1983),
 and Nagy (1987),
   When replicated data exist, best
 professional judgement will be used ir
 iho selection of a single value. Barring
 th«t« the geometric mean of the data
 points will be utilized as the
 representative value.

 HI. Parameters of the Hazard
 Component of the Wildlife Criteria
 Methodology

 A. Minimum ToxicityDatabase fot Tier
 I Criteria Development

   The 90-day requirement for
 mammalian studies and the 28-day
 requirement for avian studies are to
 erasure that the toxicity data on which
 a wildlife criterion is based exceeds an
 acute exposure, which may
 underestimate the potency a compound
 would have following a chronic
 exposure. These minimum test length
 requirements are to be applied to both
 fiold and laboratory studies.

 B. Minimum Toxicity Database for Tier
 II Wildlife Value Development

  For those substances for which Tier I
 criteria cannot be derived, all data from
 avian and mammalian species may be
 considered in the development of Tier
 E values. Subchronic or chronic toxicity
 data shall be used whenever available.to
 derive a no observable adverse effect
 loval (NOAEL) for Tier H values. There
 are two major differences hi data
 requirements for Tier n values: (1) The
 minimum database requirements
 presented for the derivation of a Tier I
 wildlife criteria must only be met for
 one of the two taxonomic classes in
 ord«r to derive a Tier n wildlife value;
 and (2) a Tier H value may also be based
 on a mammalian study which fulfills
 tha requirements set forth for Tier I
 criteria excepting it may have only a 28-
 day duration.
  LD50 and eight-day LC50 data may be
 used in support of subchronic and
 chronic toxidty data; however, neither
 a Tier I criteria nor a Tier n value shall
be calculated solely on the basis of LD50
or eight-day LC50 data.
  C. LOAEL to NOAEL Extrapolations

    If a NOAEL hi proper units is
  available from the scientific literature, it
  may be substituted directly into the
  equation. In many instances, however, a
  NOAEL is unavailable and a LOAEL is •
  available for a particular animal. In
  these instances the LOAEL must be
  adjusted to estimate a NOAEL and
  converted to proper units before being
  substituted into the equation.
    The LOAEL is adjusted by dividing by
  an uncertainty factor which typically
  ranges hi value from 1.0 to 10 to lower
  the LOAEL into the range of the
  NOAEL. Experimental support of this
  concept is provided by Weiland
  McCollister (1963). A discussion and
  endorsement of this concept can be
  found hi Stokinger (1972) and Dourson
  and Stara (1983). In addition, this
  concept is endorsed by EPA in the
  Federal Register for Water Quality
  Criteria Documents (45 FR 79353-
  79354, November 28,1980) and hi the
  National Drinking Water Regulations (50
  FR 46944-46946, November 13,1985).
  Additional discussion on the use of a  •
  LOAEL to NOAEL uncertainty factor
  and the determination of its magnitude
  is also provided in appendix A to the
  Great Lakes Water Quality Initiative
  (GLWQQ Technical Support Document
  for Human Health Criteria and Values,
  which is available hi the administrative
  record for this rulemaking.

  D. Subchronic to Chronic Extrapolations

   In certain instances where only
  subchronic data are available,.a
  subchronic to chronic, uncertainty factor
  may be used to account for the
  uncertainty hi extrapolating from a
  subchronic NOAEL to a chronic
  NOAEL. The value of the uncertainty
  factor is within the range of 1.0 to 10,
  depending on the dose-response of the
  adverse effect. The subchronic NOAEL
  is divided by the uncertainty factor.
  This factor may be used when assessing
  highly bioaccumulative chemicals,
.  where toxicokinetic considerations
 suggest that a bioassay of limited length
 may underestimate hazard. This concept
 and the use of a 10-fold uncertainty
 factor is endorsed by EPA hi the Federal
 Register for Water Quality Criteria
 Documents (45 FR 79353-79354,
 November 28,1980) and in the National
 Drinking Water Regulations (50 FR
 46944-46946, November 13,1985).
 Additional discussion on the use of a-
 subchronic to chronic uncertainty factor
 is also provided hi appendix A to the
 Great Lakes Water Quality Initiative
 Technical Support Document for
 Human Health Criteria and Values,
                                                            which is available hi the administrative
                                                            record for this rulemaking..

                                                            E. Species Sensitivity Factor
                                                             The NOAEL shall be adjusted to
                                                            accommodate differences hi interspecies
                                                            toxicity with the use of an uncertainty
                                                            factor. This adjustment may be
                                                            necessary since the toxicity information
                                                            upon which a criterion is developed
                                                            will not necessarily be based on a study
                                                            using the representative wildlife species
                                                            Or the species identified as requiring
                                                            greater protection. In order to provide
                                                            protection for the representative species
                                                            or the species requiring greater
                                                            protection, an uncertainty factor called
                                                            the species sensitivity factor (SSF) shall
                                                            be used, the value of which shall be
                                                            based on the physicochemical,
                                                            toxicokinetic and toxicodynamic
                                                            properties of the substance  hi question.
                                                            The value of the SSF shall also be  based
                                                            on the amount and quality of available
                                                            toxicological data—both the duration
                                                            and quality of available studies and the
                                                            diversity of species for which data is
                                                            available. Toxicity information for
                                                            chemicals which operate by the same
                                                            mode of action can also be considered
                                                           hi deriving the SSF for a given
                                                           chemical. The SSF is notintended to
                                                           adjust for potential differences with
                                                           regard to body weight and food and
                                                           water consumption rates between the
                                                           test species and the representative
                                                           species or species requiring greater
                                                           protection. The factor selected shall  .
                                                           reflect the uncertainty with which the
                                                           available toxicity data are appropriate
                                                           for the representative species or the
                                                           species requiring greater protection.
                                                             For Tier I wildlife criteria, the SSF
                                                           generally shall be used  for extrapolating
                                                           toxicity data across species within a
                                                           taxonomic class and have a value within
                                                           the range of 0.01 and 1.0. Use of a SSF
                                                           outside of this range is prohibited
                                                           unless approved by EPA. An interclass
                                                           extrapolation employing a SSF may be
                                                           used for a specific chemical if it can be
                                                           supported by a validated biologically-
                                                           based dose-response model,
                                                           incorporating acceptable endpoints, for
                                                           a chemical analog that acts Under the
                                                           same mode of toxic action.
                                                             For Tier H wildlife values, interclass
                                                           extrapolations are permitted. Because of
                                                           the uncertainties hi performing  •
                                                           interclass extrapolations, the SSF for
                                                           calculating Tier n values may not be
                                                           greater than 1.0 but may be lower than
                                                           0.01 without requiring a written
                                                           justification. It is stressed that Tier E
                                                          •values are by definition and design
                                                           conservative. Tier Rvalues can be
                                                           derived when subchronic or chronic
                                                           data are available, from only one
                                                           taxonomic class; however, because there "

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                  Federal Register./Vol. 88*:No, 72-I Friday, April 16, 199"3 /Tiropdseif Rules
                                                                     21005
-  is more uncertainty in perlprming     :
  interciass extrapolation, a more
  conservative SSF may be applied,      -
 .   To determine the proper range for the-
 .' species sensitivity factor, LD50 data
  were reviewed for approximately 50
  chemicals and chronic toxicity data
  were reviewed where available. Table I
  of the annex contains LD50 data for rune
  pesticides,'PCBs (Aroclor 1242) and
  2,3,7',8-tetrachlorodibenzo-p-dio:dn.
  This table demonstrates how toxieity,
  from certain chemicals differs among
  species/Table n of this annex contains
 , chronic toxicity data for organomercury
  compoundsin mammalian species.
  These data support both the use of an
  interspecies uncertainty factor and the  ';
  range of the SSF established within this
  procedure.         :
    In application, a  database containing
  both chronic and reproductive/.        •
  developmental data for a diversity of
  • species may require a SSF of between
  0,1 and 1.0. If these data are from
  numerous species and represent 'the  •
  most sensitive mammalian and avian
  species, the SSF maybe equal to 1.0.-.

  IV. Parameters of the Exposure
  Component of the Wildlife Criteria
  Methodology.
             ' - '  _'.   * •	"  [t'".",'.'
  A. Bioaccumulation Faptors           •

   . A bioaccinnulation factor (BAF) is  •.;„' .
  necessary to estimate the. concentration
  of the chemical in the; wildlife food  :
  source based on its concentration in the.
 - water source. The procedure to derive
  the BAF is specified hi appendix B to
  part 132 of this rule. This methodology
. specifies that, in general, trophic level
. three and four BAFs are used in the
  .derivation of wildh'fe values, although '..
  options to use plant or other .trophic
  level BAFs are permitted based on the
  identification of species requiring
  greater protection which are not obligate
  piscivorous or are not .likely to consume
 : only ;fish species at trophic level three
  or four     .      .         ..•:--..-

  V. Determination of Species Identified
  for Protection and Associated Exposure
  Parameters
    Wildlife exposure to environmental
  contaminants in aquatic systems can be
  quite variable depending on natural.
 . history characteristics of species and on
  animal physiology.  Furthermore, for  ,
  most species there are few data to,
  estimateiexposure in nature (e.g.,,
  ingestion rates of natural foods, field
 . metabolic rates). The procedure
  outlined below integrates appropriate   ..
  exposure information for a broad array
:' of species with variable  exposure ,  '
; scenarios-and was used to determine
  representative! species idenUfiedfor
 protection in deriving the Great Lakes
 Wildlife Criteria. .This analysis also
 supports the WV derivation procedure
. which reflects an approach similar to -
 the human non-carcinogen: water quality
 criteria derivation procedure.

 A. Selection of Species Identified for
 Protection
   The analysis described in this section
 was performed to determine
 representative avian and mammalian
 species of the Great Lakes basin which
 are likely to experience significant
 exposure to contaminants in aquatic
 ecosystems through the food chain. As
 a consequence, emphasis is on species
 with foraging behaviors and trophic    •
 levels of their forage sources which
 suggest high exposure to contaminants.
 Therefore, the wildlife species of
 primary concern are piscivorous.
   In general, small endbtherms have a
 higher ingestion rate relative to body
 mass than large endotherms, because
 small animals generally have a larger
 surface area to volume ratio and lose
 proportionately more energy as heat.
 This suggests that small animals would
 be exposed to contaminants to a greater
 degree than large animals, and would
 always be at a higher level, of risk.
 However, small piscivorous are
 generaUy size-limited predators and
 feed on smaller fish in a lower trophic
 status than larger piscivorous. Since the
 concentration of bioaccumulative
 pollutants is usually less at lower
 trophic levels, it can not be assumed
 that small animals have a greater
 exposure. Therefore, to. adequately
 predict exposure, information on animal
 size, food habits, and behavior is
 needed.      '     '                  .
   Detorminations were made of ,  . - -.
 representative species that reside in the
 Great Lakes basin, based on animal size
 (small, medium, and large) and foraging
 style. Animals with different foraging
 styles may also have different
 morphologies and activity patterns that
 ultimately influence food or water
 ingestion rates and other factors that
 determine exposure to contaminants,
   1. Selection of Avian Species.,
 Piscivorous avian species cartbe   ,
 classified into three general types of    .
 foraging styles; raptorial predators,
 diving and swimming predators, and
 wading,,"sit-and-wait" predators. Some,
 species which reside in the GreatLakes
 basin and exhibit each.pf these.foraging
 styles are listed here:
   a. Raptorial: Bald eagle, osprey,  :   • -••
 kingfisher and cc-mmon tern;
   b. Diving: Double-crested cormorant,
 common loon, common merganser and
 redrbroastedmerganser,and  :,  , ,'.•
   c. Wading: Great blue heron and
 green-badced heron.       •
   Exposure data with sufficient detail to
 make reasonable exposure estimates for
 six Great Lakes basin piscivorous birds
 .was obtained: Bald eagle, osprey,
 common merganser, common loon,
 double-crested cormorant and belted
 kingfisher. These species represent two
 of the three foraging styles identified.
 Analysis of these data indicate that the
 ingestion rates are proportional to the
 animal mass and the differing foraging  .
 styles do not contribute to differences in
 the ingestion rate. A representative
 sample of the variability in bird
 exposure to contaminants in water can
 be gained by calculating WVs for the
 three raptorial species (eagle, osprey
 and kmgfisher) which represent the
 range and extremes in body siz». The
 additional data, since it is only for a
 small number of species, was not used
 because it could skew-the distribution,.
   2. Selection of Mammalian Species.
 Two mammals were identified hi the
 Great Lakes basin which are piscivorous
 and therefore likely to experience
 significant exposure to contaminants in
 aquatic food chains—the mink and river
 otter. The two species have different
 body sizes (adult otters are six-to-eight "
 times larger than adult mhik), and
 different food habits. Wildlife Values
 should be calculated "for both mammal
 species. The mink has alarger food
 ingestion rate relative to body size than
 the otter. However, it is unlikely that   ••;
 mink have a diet that is comprised    !
 solely of fish from the higher trophic
 level as is predicted for me otter.
 Therefore, calculatkig Wys for both"
 mammals may account for the
 variabilijty in exposure that likely occurs
 in mammals.     .   -   ,           .'•'.'}

 JB; Derivation of Exposure Parameters
 and Body Weights for Species Identified
for Protection    ,  •••,'  ;.;..".    ••"•     ,
   1, Bald Eagle (Haliaeetus
 leucocephalus). Adult eagles wdgh .
 from 3.0 to 6.3 kg with an average adult
 weighing about 4.5 kg. (Bortolotti, 1984;
 Stabnaster and Gessaman, 1984; Pahner,
 1988)v
  There have, been several estinaates of
 food ingestion rates of-captive and-free-
 ranging eagles. Stahnaster and     ,'•>•
 Gessaman (1982) found that captive     .
 eagles consumed about  9.2 percent of   ,
 theirbody mass m fish each day
 (approximately 414 g/d).Ho"wever, by
weighing fish carcasses before and alter
 they were fed upon by free-ranging
 eagles, Stalmaster and Gessaman (1984)
 estimated that eagles Wintering on the
Nooksack River, WA, consumed about ^
490 gof fish each day Using models-    ;
produced by Gessaman  and Stahnaste

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21006         Federal Register /  Vol.  58,'No. 72 / Friday, April 16, 1993 / Proposed Rules
(1084), Craig et al. (1988) estimated that
adult eagles wintering along the lower
Connecticut River, CT, consume about
§20 g of food per day. Therefore, it is
assumed that a typical adult eagle
consumes about 500 g of fish per day.
  Tha water ingestion rate is derived
from the allomelric equation presented
in appendix D to part 132 and is 0.16
L/d.
  2. Osprey (Pandton haliatus). Adult
ospreys weigh from 1.1 kg to 2.0 kg with
a typical adult weighing approximately
1.5 kg (Newell et al., 1987; Palmer,
1988; Poole, 1989).
  As reviewed by Palmer (1988), adult
osprey consume 286 kcal/d. Assuming
the metabolizable energy in fish is
approximately 1 kcal/g (Palmer, 1988;
Stalmaster and Gessaman, 1982), osprey
require 286 g of fish per day. A review
of data for European Ospreys,
summarized by Palmer, 1988, suggested
that food requirements were about 300
to 400 g/d. Nagy (1987) presents models
to calculate field metabolic rates (FMRs)
of birds and mammals based on body
weights. The equation for calculating
the FMR (in kcal/bird-d) of anon-
passerine bird is as follows:
log FMR (kcal/bird-d)=O.Q594+0.749 log
    Wt (g)
where Wt is in g, wet weight.
  The Nagy (1987) model predicts that
osproy require 274 g of fish per day,
assuming osprey weigh 1500 g and the
metabolizable energy in fish is 1 kcal/
g. Also, Newell et el (1987) estimated
that osprey would require 300 g/d
assuming birds consume 20% of their
body weight each day. Therefore, it
appears that a reasonable estimate of
food ingestion rate for adult ospreys is
approximately 300 g/d.
  The water ingestion rate is derived
from the allometric equation presented
In appendix D to part 132 of this rule
and is 0.077 L/d.
  3. Belted Kingfisher (Ceryle alcyon).
The average adult belted kingfisher
weighs approximately 0.15 kg (Fry,
1980; Dunning, 1984).
  Alexander (1977) reviewed the
literature and estimated that adult
Belted Kingfishers may consume up to
50 percent of their body weight in fish
each day. This would equate to
approximately 75 g/d. Since this was an
estimate, the Nagy (1987) model was
applied to calculate the FMR in kcal/d
for a non-passerine bird:
log FMR (kcal/bird-d)=0.0594+0.749 log
    Wt(g).
  Assuming kingfishers weigh 150 g,  ,
and that the metabolizable energy in
fish is 1 kcal/g (Stalmaster and
Gessaman, 1982; Palmer, 1988), the
Nagy model predicts that birds would
require about 50 g/d. Therefore, a
reasonable estimate of the kingfisher
food ingestion rate would be about 75 g
of fish per day.
  The water ingestion rate is derived
from the allometric equation presented
in appendix D to part 132 and is 0.017
L/d.
  4. Mink (Mustela vison). Adult male
mink range from 0.9 to 1.6 kg, and
females range from 0.6 to 1.1 kg
(Linscombe et al., 1982). Therefore, it is
assumed that an average adult mink has
a body mass of 1.0 kg (see also Newell
et al., 1987).
  Estimates of food ingestion rates of
captive mink range from about 12
percent to 16 percent of the adult body
weight per day (Aulerich et al., 1973;
Bleavins and Aulerich, 1981). Therefore,
it will be assumed that a one kg adult
mink consumes about 150 g of food per
day (Aulerich et al., 1973; Newell  et al.,
1987).
  The water ingestion rate is derived
from the allometric equation presented
in appendix D to part 132 and is 0.099
L/d.
  5. River Otter (Lutra canadensis).
Adult otters range from 5 kg to 15  kg,
with a typical adult weighing 8 kg
(Lauhachinda,  1978; Toweill and Tabor,
1982).
  ToweiE and Tabor (1982) reviewed
two studies reporting food ingestion
rates of captive otters. North American
otters were reported to require about
700 to 900 g of prepared food each day,
while European otters consumed 900 to
1000 g of live fish each day. Therefore,
.it is assumed that otters consume about
900 g of food per day.
  The water ingestion rate is derived
from the allometric equation presented
in appendix D to part 132 and is 0.64
L/d.

C. Derivation of Dietary Trophic Levels
for Species Identified for Protection;

  1. Bald Eagle (Haliaeetus
leucocephalus). Bald Eagles are known
to consume a variety of foods including
fish, waterfowl, small mammals, and
carrion. However, if available, fish are
their principal food and large fish may
make up 100 percent of their diet
(Newell et al., 1987; Palmer, 1988; Kozie
and Anderson, 1991). Therefore, it is
assumed that eagles consume only
trophic level 4 fish.
  2. Osprey (Pandion haliatus). The diet
of Osprey is almost 100 percent live
fish, concentrating on fish weighing
150-300 g (Palmer, 1988 and Poole,
1989). Therefore, it is assumed that
Osprey are consuming only trophic
level 3 fish.
  3. Belted Kingfisher (Ceryle alcyon).
Kingfishers may eat a variety of foods
including fish, amphibians, and insects!
However, small fish are known to
comprise roughly 90 percent of their
total diet (Alexander, 1977). Therefore,
it is assumed that kingfishers have a diet
of only trophic level a fish.
  4. Mink (Mustela vison). Mink are
opportunistic carnivores (Linscombe et
at, 1982); however, aquatic organisms
sometimes comprise almost 100 percent
of their diet with fish usually making up
less than 50 percent of their total intake
(Aulerich, 1973; Alexander, 1977;
Linscombe et al,, 1982; Newell et al.,
1987). It is assumed that the diet of
mink foraging in habitats comprising the
shores of the Great Lakes and major
tributaries is made up of trophic level 3
fish.
  5. fliVer Otter (Lutra canadensis). The
bulk of the otter's diet is composed of
fish (typically greater than 90 percent)
with other aquatic organisms making up
lesser portions (Toweill and Tabor, .
1982; Newell et al., 1987). It is assumed
that otters consume a diet composed of
50 percent trophic level 3 and 50
percent trophic level 4 fish.
                                TABLE I.—SENSITIVITY OF SPECIES BASED ON LDj0 Data
Chemical and Species
«*tn: .. . .-. . , , ,,,i , 	 .,.;.. 	 ,. '„• .„. , •..
FiHvou* whistling duck 	 	 	 	 	 „ 	 	 	 	 	 	
Malard 	 , 	 	 	 	 	 „ 	 	

pheasant 	 	 	 	 	 	
MoteDaer 	 , 	 „ 	 	 	 , 	 	 	 	
LDjo (mg/kg)
292
520
659
168 .
18.8-37.5
[95% Con-
fidence Inter-
val]
[22 2-38 4]
[229-1 i210]
[5 00-8 66]
[14 1—200]


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                         Federal Register  /  Vol. 58, No;  72; /  Friday,  April  16,  1993 7 Proposed Rides
                               21007
                                         TABLE I.—SENSITIVITY OF SPECIES BASEPON LDjo Data—Continued
                                               Chemical and Species
 Chlordane:    \  •  -'     -        \\-  •,'"'  ".-••'        .          -  .      "..:-.  :  .--,-,   .''..;""•     "". '      .   -.;'   ".'-  ""•"•-•.
 '    'Mallard	....»...,..........„..„....„......;	..............	...,A...!.........i..»...«.;™.....J.	................   1,200
      California Quail	,	;	..........;	„„	   14.1
      Pheasant ......................	—.		.	•„=	„•„	..............	„'..-.'  24.0-727o
 DDT.---'.  -.-"•-..   ..••".-   -.-.••   :  •-.":';-•'   vV';  "•   ••   ''•.'.'•  •.  '••. -':'"•   '.    .-    '-  ":   :
      Bullfrog	...;„,	....'.	;	............	..................   72,000    ,
      Mallard	'.	.................		..;....	.'..............	.".....	   72,240
      California Quail ...,........:..,..„..	,.:	„......,	......i......;........,,	..;	   595
      Japanese Quail	...	........................	......;................™........!;:..;»...	   841
      Pheasant	..r.	......„............;;.........................„	......V,.	   1,334
      Sahdhiil Crane	...............		.......;..„.„....!.....„..	.....:.	..   71,200
      Rock Dove  ...7.	•„.;'.	.:......•...........	;....	„.	  74?,000
 Dleldrin:        ,.                                                             :         •           '  .;         ;         '.'.-.
,  -"   Canada Goose	!....„...	........	..:.......	...;....	..../......I	    <141
     ^.Fulvous Whistling Duck .........;	...................................	.;.	   100-200
 =     Mallard	„......;	:......	   381
   •   California Quail	,....;....;	.,		   8.78
      Japanese Quail 	.-.	„.......:.:.„„.	!...„'.„...;	   69.7
      Pheasant	.....>....	......................;	......	   79.0
      Chukar	.„	...'	.'............................		.;..   25.3
      Gray Partridge	....................	......:	.'.	   8.84
      Rock Dove  ..........	...„...,	.,	........		.;  26.6
      House Sparrow	.,.............;......„..........„„„..„..„....„.„....	;.	.........   47.6
 .     Mule Deer	...„,..;.	,.;.......	.....:...		...L..-........J.-.;.	.	........   75-150
      Domestic Goat ......:.	...„		...^....;..........   10f>-200
 Endrih:'   .       ".'..  •. "*'-•  •' -' .'..-••.   .-.  .,,   _.":             '-'  .     .  ,.,  '     ',-  '"  ''  -   -  ;'-'.'       ".        '•           "
      Mallard	...'....!	.;......,.			^.,.....»i...	.„„   5.64
   •-  Sharp Tailed  Grouse	;.„.......'..,:......	;...	.	......	...........'................L.....,....;.:	.....".	„.	  1.06
      California Quail	..„.........„.,	;.,..,..........	,.....;........		......i   1.19
   '   Pheasant*	.....;............;	...,...„.	...„.........,.....;.		;	........;...„.....!	.„......„.....•..„„...   i,7S    /
      Rock Dove	1.................	;..,	......„.....;..	;	...„   2.6-5.0   '
      Mule Deer......;......:......	,,.;....;	.....^......«.		,	,.4.;..,.....	6.25-12.5
      Domestic Goat	»	~.					...,......„,.„   25.0-50,0 ,
 Hexachlorobenzene:    ,   •       ...                                            • -..'
      Mallard	....„.,......!		..'........;.„...	    7i,4t4
      Pheasant .....................	...............		   118
 Parathlon:.         .•_'..''             -     '•[•'..
      Fulvous Whistling Duck .:.......	'•.		...........„„„   0.125-0.250
      Mallard —........;........	...........		.„„.„..				  ^2.40
      Mallard	....:............;.......................	....,...,.;i.......;.......i.	.„.........;.	....;...	...;	..„   1.90
     - Mallard	..........-.:.	..........».............^	.'.........„.   2.34 '
      Mallard...;.......	..........^«.....;.....l......:..™...	:.........:...;...	;..................		....	..  1.44
 :  .•   Mallard	;.......;...	.,....„;.........		..„.....„•	;............		.......	;  .              i 44     .
    .  Mallard Duckling  (MM)	.,..«..„	.„...:....	.-„	   0.898
      Sharp Tailed  Grouse	.,...	.......„......,......;..„....„„	„...„.„..   5.66
      California Quail	'..........	   16.9
      Japanese Quail ........!	.................—	..„.'..........„.....		...„„   5.95
      Ptieasant	I.™.............;....,.........:..	....;.........;..„;...„„....„	  12.4
      Pheasant	.•..„.....	.„..„.	;........	...................;	   >24.0
     ;Chukar	.......:....;..,....................	.....,^......\		  24.0
      Gray Partridge  ..;	..:.....		'.....'..		...-......:	„........„   16.0
    '  Rock Dove.'..;..:....-...........;		.....;..........„......;	..„	....................I.......™..................  2.52
      House Sparrow :.	....:			   3.36    '.•'-.
      Mule Deer	„		  22.0-44.0
      Domestic Goat ..—..,.;.,........i.......			„					.;.„	  28.0-56.0
      PCS (Aroclpr 1242):.                                                          :
   .   Mallard Duck	.,—..............—......,.,.....,...........;	  2,098
      Pheasant	...i	   2078
      Mink ,....".....„..		.".:.,.....„„.„..„„.;,	........„.........".:,.	...;.,.....	.'....•„...„.„..„„	^^......;...;.........  "1*0-8.6
      Ferret	..............I..!...'......		......		^.....-........««......	;.....;...	1..   >20
   :  : Rat...........'..	...........'...„.........,................	»	...'.	.„.....,..'	..........i......................'.!........   0.8-11.0
      Rabbit	...	.	......;.....	„.	.i...........	.„	......	.		  8.7 .
.Temephos:   .             ':   ,      -.-''"..                       '-.."'•.   :•       .
   -   Bullfrog  ....r......	...:.......^...™...l	;..„..;	.,.,			;......v.....  >2,000     ,
      Mallard	...;	:.........	............;.„	  79.4
 :.'  ,   California Quail	..,.................^.,......JW,..	   18.9
   .   Japanese Quail	]	„...,.....	  B4.1
 .  .  ^Pheasant .,	......,.,........:,.,.........,..;.l....,..............«.«........!.	«.!.,.......;..«...'...;.........i...."...!.....w.l....i,.  35.4
 .',.-'   Chukar ....„...........'.	........,.;...^L;.,...^...........<....,,........I.»,..^^                        	....„.,....„„.  24d ,
      RQCk Dove	........;............^.....^'...«..........«.i.«...........;.................;,..  SO.t
LDso(mg/kg)
 [95% Con-
fidence -Inter-.
   :••• val]
                           [954-1,510}
                           (9.14-21.7V
                             [430-825]
                           [607-1.170]
                           [894-1,990]
                           [6.47-11.9]
                            [40.0-121]
                            [21.6-289
                           [15.2-42.2
                           [1.24-62.8
                           [19.2-36.9
                           [34.3-66.0
                           [2.71-11.7]
                          [0.552-2.04
                          [0.857-1.65
                           [1.12-2.83;
                            [93.6-148]
                           [1.67-4.01]
                           [1.37-2.64
                           [1.88-2.92
                           [1.13-1.83
                           [1.16-1.80
                          [0.770-1.05!
                           [3.46-^9.24
                           [12.2-23.5
                           [3.38-10.5
                         :  [10,1-15.2

                           [16.8-34^;
                           [4.00-64.0'
                           [1.82-3.50
                           [2.43-4.66
                            [38.5-163]
                           [15.0-23.8j
                            [60.6-116
                           [25.5-49.0
                         "•'''
                                      ,
                            [16.7-150

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21008
Federal Register / Vol. 58, No.  72 /  Friday,  April  16, 1993  /Proposed Rules
                              TABLE I,—SENSITIVITY OF SPECIES BASED ON LD3o p
Chemical and Species

Housa Sparrow 	 ."....... 	 	 	 	 	 	 	 ,.
2,3,7,8-TCDD:
RUt , .. 	 	 	 	 	
Rhosus Monkey 	 	 	 • 	
Don . 	 , 	
M 	 	 	 	 	
Sbmp Tsllod Qrouso ....» 	 ...» 	 	 	 	 	 — «. 	 • 	 »»• 	 	 	
Bobwhita * , . * 	 •• 	 • 	




Hom*d urk 	 	 	 	 .............;;.;.:.: 	 ...:..:.....„................ 	 ...........

Dorosstfa Goat 	 	 	 	 	 • 	
LDso (mg/kg)

35.4
0.6-2 H<5/kg
22-45 ng/kg
<70 fig/kg
1 00-200 ng/kg
114-284 jig/kg
115|ig/kg
1,157-5,051 jig/kg
99.0
30.8
70.7
19.9
85.5
23.7
40.0
23.7
100-316
581
139-240
>160
[95% Con-
fidence Inter-
val]

[8.85-141







[37.2-264]
[23.3-40.6]
[37.6-133]
[14.1-28.2]
[59.3-123]
[11.9-47.4]
[20.0-80.0]
[20.0-28.3]

[425-794]


  Adopted from Bsler 1986a,b and Hudson, et al. 1984.
TABLE II.—TOXICITY OF ORGANOMERCURY
  COMPOUNDS TO SELECTED MAMMALIAN
  SPECIES
Species
Doa 	 	 	
Cat 	 	 	
pfg 	 „ 	 , 	
Rhesus Monkey
MW< 	 	 	
Rivsr Otter. 	
Dose (mg/
kg)
0.1-0.25
0.25
0.5
0.5
1.0
>2.0
Effect
Stillbirths.
Death.
Stillbirths.
Maternal
Toxlcity.
Death.
Death,
  Adopted from Eisler 1987.

VI. References
  Alexander, G. 1977. Food of vertebrate
predators of trout waters In north central
lower Michigan. Michigan Academician.
10:181-195.
  Aulcrfch, R. J., R. K. Ringer and S.
twamoto. 1973. Reproductive failure and
mortality in mink fad on Great Lakes fish. J.
Raprod. Pert. (Suppl.) 19:365-376.
  Bicavins, M. R. and R. J. Aulerich. 1981.
Feed consumption and food passage in mink
(Mustola vison) and European ferrets
(Mustola putorius furo). Lab. Animal Sci.
31:268-269.
  Bortolottl, G. R. 1984. Sexual size
dimorphism and age-related size variation in
bold eagles. J. Wildl. Manage. 48:72-81.
  Older in, W. A., and E. J. Braun. 1983.
Scaling of osmotic regulation in mammals
and birds. American Journal of Physiology.
244:601-606.
  Orals. R. J., E. S. Mitchell and J. E.
Mitchell. 1988. Time and energy budgets of
bald eagles wintering along the Connecticut
River. J. Field Omithol. 59:22-32.
  Dourson, M. L. and J. F. Stara. 1983.
Regulatory history and experimental support
                         of uncertainty (safety) factors. Regulatory
                         Toxicology and Pharmacology. 3:224.
                           Dunning, J. B. 1984. Body weights of 686
                         North American birds, Monograph #1,
                         Western Bird Banding Association.
                           Eisler, R. 1986a. Dioxin hazards to fish,
                         wildlife, and invertebrates: a synoptic
                         review. U.S. Fish and Wildlife Service
                         Biological Report. 85(1.8): 37pp.
                           Eisler, R. 1986b. Polychlorinated biphehyl
                         hazards to fish, wildlife, and invertebrates: a
                         synoptic review. U.S. Fish and Wildlife
                         Service. Biological Report. 85(1.7): 72 pp.'
                           Eisler, R. 1987.-Mercury hazard to fish,
                         wildlife and invertebrates: a synoptic review.
                         U.S. Fish and Wildlife Service Biological
                         Report. 85(1.10): 90pp.
                           Fry, C. 1980. The evolutionary biology of
                         kingfishers (Alcedinidea). In: The Living
                         Bird, 1979-1980. The Laboratbry of
                         Ornithology, Cornell Univ., Ithaca, pp. 113-
                         160.
                           Great Lakes Water Quality Initiative.
                         Appendix A: Uncertainty Factors. HI Great
                         Lakes Water Quality Criteria Initiative
                         Technical Support Document for Human
                         Health Criteria and Values. NTIS #PB93-
                         15468. ERIC: 3940.
                           Hudson, R. H., R. K. Tucker, and M. A.
                         Haegele. 1984. Handbook of toxicity of
                         pesticides to wildlife, U.S. Fish and Wildlife
                         Service, Resource Publication #153, 90 pp.
                           Kozie, K. D. and R. K. Anderson. 1991.
                         Productivity, diet, and environmental
                         contaminants in bald eagles nesting near the
                         Wisconsin shoreline of Lake Superior. Arch.
                         Environ. Contain. Toxicol. 20:41-48.
                           Lauhachinda, V. 1978. Life history of the
                         river otter in Alabama with emphasis "on food
                         habits. Ph.D. dissertation. University of
                         Alabama, Auburn, AL. 169 pp.
                           Linscombe, G., N. Kinler and R. Aulerich.
                         1982. Mink. In: J. Chapman and G.
                         Feldhamer (eds.), Wild Mammals of North ,
                         America: Biology, management and  ,
economics. John Hopkins Univ. Press,
Baltimore, pp. 629-643.
  Nagy, K. A. 1987. Field metabolic rate and
food requirement scaling in mammals and
birds. Ecological Monographs. 57(2):111-128
  National Institute for Occupational Safety
and Health. Latest edition. Registry of Toxic
Effects of Chemical Substances (available •
only on microfiche or as an electronic data
base). Cincinnati, OH.
  Newell, A. J., D. W. Johnson and L. K.
Allen. 1987. Niagara River biota
contamination project: Fish flesh criteria for
piscivorous wildlife. New York State,
Division of Environmental Contaminants.
Technical Report 87-3.
  Palmer, R. S. Editor. 1988. Handbook of
North American birds: Volume 4. Yale
University Press. 433 pp.
  Poole, A. F. 1989. Ospreys: A natural and
unnatural history. Cambridge, MA:
Cambridge University Press.
  Registry of Toxic Effects of Chemical
Substances. Latest edition. National Institute
for Occupational Safety and Health.
Cincinnati, OH.
  Stalmaster, M. V. and J. A. Gessaman.
1982. Food consumption and energy
requirements of captive bald eagles. J. Wildl.
Manage. 46:646-654.             '
„ Stalmaster, ,M. V. and J. A. Gessaman.
1984. Ecological energetics and foraging
behavior of overwintering bald eagles. Ecol.
Monogr. 54:407-428.
  Stephen, C. E., D. I. Mount, D. J. Hansen,
J. H. Gentile, G. A. Chapman, and W. A.
Brungs. 1985. Guidelines for deriving
numerical national water quality fcriteria'fof
the protection of aquatic organisms and their
uses.  PB85-227049. National Technical
Information Service. Springfield, VA.
  Stokinger, H.E! 1972. Concepts of  "
thresholds in. standard setting. Arch.  Environ.
Health. 25:153-157.

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                  Federal Register / Vol. 58, No. 72 / Friday, April 16,  1993 / Proposed Rules          21009
   Toweill, D. E. and J. E. Tabor. J982. River
 otter. In: J. Chapman and G. Feldhammer
 (eds.), Wild Mammals of North America.
 John Hopkins Univ. Press, Baltimore, pp.
 688-703.                       .-...-
   U.S. EPA. 1980. Appendix C. Guidelines
 and Methodology Used in the Preparation'of "
 Health Effect AssessmentiChapters of the
 Consent Decree Water Criteria Documents,  .
 pp, 79347-79357 in Water Quality Criteria
 Documents; Availability. 45 FR 79318-
 79378. Friday, November 28,1980.   ,
   U.S. EPA. 1985. Section V.C. Evaluation of
 Health Effects and Determination of RMCLs
 pp. 46944-46950 in National Primary
 Drinking Water Regulations; Synthetic
 Organic Chemicals; Inorganic Chemicals and
 Microorganisms. 50 FR 46936-^4702:2.
 Wednesday November 13,1985.
          i, and D.D. McCollister, 1963.
         tip between short-and long-term
 studies in designing an effective toxicity test.
 Agric. Food Chem. 11:486-491.     '-'

 List of Subjects

 40 CFR Part 122

   Administrative practice and
 procedure, Confidential business
 information, Great Lakes, Hazardous
 substances/ Reporting  and
 recordkeeping requirements, Water
 pollution control.

 40 CFR Part-123

 '  Admii;istratiye practice and
 procedure, Confidential business
 information, Great Lakes, Hazardous
-substances, Indians-lands,...
 Intergovernmental relations, Penalties,
 Reporting and recordkeeping
 requirements, Water pollution control.

 40CFRPartl31

  , Great Lakes^Reporfing and
 recordkeeping requirements, Water
 pollution control.

 .40 CFR Part 132

   Administrative practice and
 procedure, Great Lakes, Indians-lands,
 Intergovernmental relations, Reporting
 and recordkeeping requirements, Water
 pollution control.
  Dated: March 30,1993.'
 Carol M. Browner,      ,   ,  ;
 Administrator.
   For the reasons set forth in the
 preamble, EPA proposes to amend 40
 CFR.parts 122,123, and 13.1, and add
 part 132 as follows:

 PART 122—EPA ADMINISTERED
 PERMJT PROGRAMS: THE NATIONAL
 POLLUTANT DISCHARGE
 ELIMINATION SYSTEM      ;       ;

   l.-The authority citation for part, 122
 , continues to read as follows: .
  Authority: the Clean Water Act, 33 U.S.C.
:1251etse
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                Federal Register / Vol. 58, No. 72 7 Friday,  April 16, 1993 / Proposed Rules
  11. Section 131.21 is amended by
revising paragraph (b) to read as follows:

S131.21  EPA review and approval of water
quality standards.
»    *    *    *    *
  (b) The Regional Administrator's
approval or disapproval of a State water
quality standard shall he based on the
requirements of the Act as described in
§§ 131.5 and 131.6, and, with respect to
Great Lakes States or Tribes (as defined
in 40 CFR 132.2), 40 CFR part 132.
*    *    *    * ,   *        -,'
  12. Part 132 is proposed to be added
as follows;

PART 132—WATER QUALITY
GUIDANCE FOR THE GREAT LAKES
SYSTEM

Sec.
132.1  Scope, purpose, and availability of
    documents.
132.2  Definitions.
132,3  Adoption of criteria.
132.4  State adoption and application of
    methodologies, policies and procedures.
132.5  Procedures for adoption and EPA
    review.
132,6  Application of part 132 requirements
    in Great Lakes States and Tribes.
Table* to Part 132
Appendix A to Part 132—Great Lakes Water
    Quality Initiative Methodologies for
    Development of Aquatic Life Criteria
    and Values
Appendix B (o Fart 132—Great Lakes Water
    Quality Initiative Methodology for
    Development of Bioaccumulation
    Factors
Appendix C to Part 132—Great Lakes Water
    Quality Initiative Procedure for
    Development of Human Health Criteria
    and Values
Appendix D to Part 132—Great Lakes Water
    Quality Initiative Methodology for the
    Development of VVildlifa Criteria and
    Values
Appendix E to Part 132—Great Lakes Water
    Quality Initiative Antidegradation
    Policy
Appendix t to Part 132—Great Lakes Water
    Quality Initiative Implementation
    Procedures
  Authority: 33 U.S.C. 1251 etseq.

§ 132.1 Scop*, purpose, and availability of
documents.
  (a) This part constitutes the Water
Quality Guidance for the Great Lakes
System required by section 118(c)(2) of
the Clean Water Act (33 U.S.C. 1251 ei
seo.) as amended by the Great Lakes
Critical Programs Act of 1990 (Pub. L.
101-598,104 Stat 3000 et seg.). This
Guidance specifies minimum water
quality standards, antidegradation
policies, and implementation
procedures for the Great Lakes System
to protect human health/aquatic life,
and wildlife.
  (b) Certain documents referenced in
the appendixes to this part with a  •
designation of NTIS and/or ERIC are
available for a fee upon written request
to the National Technical Information
Center (NTIS), U.S. Department of
Commerce, 5285 Port Royal Road,
Springfield, VA 22161. Alternatively,
copies may be obtained for a fee upon -
written request to the Educational
Resources Information Center/
Clearinghouse for Science, Mathematics,
and Environmental Education (ERIC/
CSMEE), 1200 Chambers Road, Room
310, Columbus, Ohio 43212. When
ordering, please include the NTIS or
ERIC/CSMEE accession number.
  (c) [Reserved]
[Note: The reporting or recordkeeping
information provisions in this proposed rule
have been submitted to the Office of
Management and Budget under section
3504(b) of the Paperwork Reduction Act of
1980,44 U.S.C. 3501 ef seq. (ICR number
1639.01). When the reporting requirements
have been approved by OMB, the text of this
paragraph will be added in the final rule.]

§132.2 Definition*.
  The following definitions applvjn
this part. Terms not defined in this
section have the meaning given'by the
Clean Water Act or EPA implementing
regulations.
  Acceptable daily exposure (ADE) is an
estimate of the maximum daily dose of
a substance which is not expected to -
result in adverse effects to the general
human population, including sensitive
subgroups.
  Acute toxic unit (TUa) is 100/LC50
where the LC50 is expressed as a
percent.
  Acute toxicityis an,adverse effect hi
an organism as a result of exposure to
a toxicant for a relatively short period of
time relative to the organism's natural
life span.    '
  Acute-chronic ratio (ACR) is the ratio
of the acute toxicity of an effluent or a
toxicant to its chronic toxicity. The ACR
.is used as a factor for estimating chronic
toxicity on the basis of acute toxicity
data, or for estimating acute toxicity on
the basis of chronic toxicity data.
  Adverse effect is any deleterious effect
to organisms due to exposure to a
substance. This includes effects which
are or may become debilitating, harmful
or toxic to the normal functions of the
organism, but does not include non-
harmful effects such as tissue '
discoloration alone or the induction of
enzymes involved in the metabolism of
the substance.
  Allowable dilution flow (Qaj) is the
portion of the stream design flow used
in developing the wasteload allocation
for sources regulated by the National
 Pollution Discharge Elimination System
 (NPDES) program. The Qad is calculated
 in procedure B3, section D.S.a.ii, of
 appendix F of this part.
   Bioaccumulation is the uptake and
 retention of a substance by an aquatic
 organism from its surrounding media
 and food,
   Bioaccum ulation factor (BAF) is the
 ratio (hi L/kg) of the substance's
 concentration in tissue of aquatic
• organisms resulting from .•
 bioaccumulation, versus its
 concentration in ambient water.
   Bioaccumulative chemical of concern
 (BCC) is any chemical which, upon
 entering the surface waters, by itself or
 as its toxic transformation product,
 bioaccumulates in aquatic organisms by
 a human health bioaccumulation factor
 greater than 1000, after considering
 metabolism and other physicochemical
 properties that might enhance or inhibit
 bioaccumulation, in accordance with
 the methodology in appendix B of this
 part. BCCs include, but are not  limited
 to, the pollutants identified as BCCs in
 part A of Table 6 of this part.   . ;   .
   Bioconcentration is the uptake and
 retention of a substance by an aquatic
 organism from the surrounding water
 only through gill membranes or other
 external body surfaces.
   Bioconcentration factor (BCF) is the
. ratio of the substance's concentration in
 tissue of aquatic organisms resulting
 from bioconcentration versus its
 concentration in water.
   Biomagnification is the transfer and
 step-wise increase in bioaccumulation
 of a chemical in organisms through
 successive trophic  levels.
   Carcinogen is a substance which     ^
 causes an increased.incidence of benign
 or malignant neoplasms, or substantially
 decreases the time  to develop
 neoplasms, in animals or humans.
   Chronic toxic unit (TUC) is 100/NOEC,
 where the NOEC is expressed as a
 percent.
   Chronic toxicityis an adverse effect in
 an organism as a result of exposure to
 a toxicant for a major portion of time
 relative to the organism's natural life
 span.
   Compliance evaluation level (CEL) is
 the level at which compliance with a
 water quality-based effluent limitation
 in an NPDES permit is assessed. It is the
 minimum level, when the water quality-
 based effluent limit is less than the     "
 minimum level. Otherwise, it is the
 water quality-based effluent limn.
   Connecting channels of the Great
 Lakes are the Saint Mary's River, Saint
 Clair River, Detroit River, Niagara River,
 and Saint Lawrence River to the
 Canadian Border.

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>  Fbderal Register  / Vol.  58,  No; 72 /Friday, April 16,1993  / feoposed
                                                                                                           21011
   Criterion continuous concentration
  (CCC) is the lower of the Final Plant
  Value or the Final Chronic Value. It is
  the highest instream concentration of a
  material to which aquatic organisms can
  be exposed indefinitely without causing
  unacceptable effect              -,--.'
   - Criterion maximum concentration
  (CMC)[is one half the FAV. Itis the'
  highest instream concentration  of a
  material to which aquatic organisms can
  be'exposed for a brief period of time
  without causing an unacceptable acute
  effect
   Depuration is the loss of a substance
  from an aquatic organism.       .
   Detection level is the minimum
  concentration of an analyte (substance)
  that can be measured and reported  with
  a 99 percent confidence that the analyte
  concentration is greater than zero as
  determinedby the procedure set forth at
 ^appendix B of 4p CFR part 136.
   Dilution fraction is the factor  wlu'ch,
  when multiplied by the stream design
  flow, determines the allowable dilution
  flow (Qad). The dilution fraction is
  calculated as detailed in section
  D.S.a.iii. of procedure B3 in appendixF
  of this part
   EC50 is the concentration of a test
  material at which 50 percent of the
 exposed organisms exhibit an
  observable adverse effect (such as death,
  immobilization, or serious  •
  incapacitation) during a specified time
 jperlod.          •
  - Existing dischargee is any source
 which is neither a new source,as >
  defined by 40 CFR 122.2 nor a new
  discharge as defined by 40 CFR 122.2.
 . - • Existing uses are those uses actually
 attained in the water body on or alter
 November 28,1975, whether or not they
 are included in the water quality
  standards.  ,
-  Federal Indian Reservation, Indian
 Reservation, or Reservation means all
  land within the  limits of any Indian
 reservation under the jurisdiction of the
 United States Government,
 notwithstanding the issuance of any    •
 patent, andincluding rights-pf-way
 ruhninff through the reservation.
  - Finalacute value (FAV) is an.esllmate
 of the concentration of a material such
- that 95 percent of the genera {with
 which acceptable acute toxicjty tests
 have been conducted on the material}
• have higher acute toxicity values.The
. calculated FAV may be lowered to be
 equal to the Species Mean Acute Value
 of a commercially or recreationally
 important species of the Great Lakes
 System.'         '         •  ;
   Final chronic  value (FCV) is an
 estimate of the concentration of a
 'material such that 95 percent «f the  '-
 genera (with which acceptable-chronic
                         toxicity tests have been conducted on
                         the material) have higher chronic
                         toxicity values. Alternatively, the FCV
                         may be determined by dividing the FAV
                         by an acute-chronic ratio. The
                         calculated FCV may be lowered to be
                         equal to the Species Mean Chronic
                         Value of a commercially or
                         recreationally important species of the
                         Great Lakes System.
                           Final plant value (FPV) is the result
                         of a 96-hour test conducted with an alga
                         or chronic test conducted with an
                         aquatic vascular plant
                           Genus mean acute value (GMAVJis
                         the geometric mean of the Species Mean
                         Acute Values for the genus.
                           Genus mean chrome value (GMCV) is
                         the geometric mean of the Species Mean
                         Chronic Values for the genus.
                           Great Lakes means Lake Ontario, Lake
                         Erie, Lake Huron (including Lake St
                         Clair), Lake Michigan, and Lake
                         Superior; and the connecting channels
                         (Saint Mary's River, Saint Clair River,
                         Detroit River, Niagara River, and Saint  ,
                         Lawrence River to the Canadian Border).
                           Great Lakes States and Great Lakes
                         Tribes, or Great Lakes States and Tribes
                        ..means {he States of Illinois, Indiana,
                         Michigan, Minnesota, New York, Ohio,
                         Pennsylvania, and Wisconsin, and any
                         Indian tribe as defined in this part
                         which is located in whole or In part
                         within the drainage basin of the Great
                         Lakes, and that EPA has determined
                         qualifies under section 518 of the Clean
                         Water Act to administer programs under
                         sections 303 (see 40 CFR 131.8) and/of
                         402 of the Clean Water Act.
                           Great Lakes System means all the
                         streams, rivers, lakes and other bodies of
                         water within the drainage basin of the ,
                         Great Lakes.
                         •  Human cancer criterion (HOC) is a
                         Human Cancer Value (HC V) for a• ,
                         pollutant that meets the minimum data
                         requirements for Tier I specified in
                         appendix G of this part  -
                        •'  Human cancer value (HGV) is the  '
                         maximum ambient water concentration
                         of a substance at or below which a,
                         lifetime of exposure from either:  ^  -
                         drmking the water, consuming fish from
                         the water, and water-related recreation
                         activities; or consuming fish from tlia
                         water, «nd water related recreation
                         activities, will represent a plausible ,
                         upper bound risk of contracting cancer
                         of one in lOO.OGQusing the exposure
                         assumptions specified in the
                         methodologies for the development of -
                         Human  Health Criteria and Values in
                         appendix C pf this part      •
                          • Human noncancer criterion (HNC) is
                         a Human Noncancer Value (HNV) for a
                         pollutant that meets the minimum data
                         requirements for Tier I specified in
                         appendix C of this part;-
    Human noncancer value (HNV) is the
  maximum ambient water concentration
  of a substance at or belowr which
  adverse noncancer effects are not likely
  to occur in the human population from
  lifetime exposure via either: drinking
  the water, consuming fish.from the •
  water, and water-related recreation
  activities; or consuming fish from the
  water, and water-related recreation
  activities using the Human Health
  Criteria and Values in appendix C of
  tills part.         .                   ?
    Indian Tribe or Tribe meansiany  -
  IndianTribe, hand, group,  or
  community recognized by the Secretary
  of the Interior and exercising
  governmental authority over a Federal
  Indian reservation.                   '
    LC50 is the concentration of a test
  material at which 50 percent of the
  exposed organisms die during a
  specified time period.  ,
    Linear multi-stage model is a.
  conservative mathematical model for
  cancer risk assessment This model fits
  linear dose-response curves to low
  doses. It is consistent with a no-
  threshold model of carcinogenesis, i.e.,
  exposure to even a very small amount'
  of the substance produces a finite
  increased risk of cancer.
    Load allocation (LA) is the portion of-
  a receiving water's loading capacity that
  is attributed either to one of its existing
  or future non-point sources or to natural
  background sources, as more fully
  defined at 40 CFR 130.2(g). Nonpoint
  sources include: in-place contaminants,
  direct wet and dry deposition,
  groundwater inflow, andoverland
  runoff.;  . >• -"-  •-  ./-... •   •••. • -'   •''  --•  ••
    Loading capacity is the greatest
  amount of loading that a water can
  receive without violating water quality
  standards.
    Lowest observed adverse effect level
  (LOAELjisthe lowest tested dose or
 'concentration of a substance which
  resulted in an observed adverse effect in
  exposed test organisms when all higher
  doses or concentrations resulted in the
  same or more severe effects.
   Minimumlevel(ML) is the level at
  which the analytical system gives ''.-•-
  recognizable spectra and acceptable
-  calibration points; ,It is based upon
  interlaboratory analyses for the analyte • :"
  in the matrix of concern;
   No observed adverse effect level •;
  (NOAELjis the highest tested dose or
  concentration of a substance which
  resulted in no observed adverse effect in
  exposed, test organisms when .all lower
  levels resulted in no observed adverse
 effect . " •  ;';" :•"   " ' ..-";..'';-- ''  '• •' "•  -
   No observed effect concentration
  (NOEC) is the highest tested
  concentration of an «ffluent or a

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21012
Federal Register / Vol. 58, No.- 72  /  Friday,  April 16, 1993  / Proposed  Rules
toxicant at which, no adverse effects are
observed on the aquatic test organisms,
at a specific time of observation, when
all lower levels resulted in no observed
effect
  Noncarcinogen is a substance which
is not classified as a known, probable,
or possible human carcinogen according
to the weight-of-evidence assessment.
  Octanol/water partition coefficient
(KnJ is the ratio, at equilibrium, of the
concentration of a substance in the
octanol phase to its concentration in the
aqueous phase in a two-phase octanol/
water system.
  Open waters of the Great Lakes means
all of the waters within Lake Erie, Lake
Huron (including Lake St. Glair), Lake
Michigan, Lake  Ontario, and Lake
Superior lakeward from a line drawn
across the mouth of tributaries to the
Lakes, including all waters enclosed by
constructed breakwaters, but not
including the connecting channels.
  Quantification level is a measurement
of the concentration of a chemical
obtained by using a specified laboratory
procedure, at a specified concentration
above the detection level. It is
considered the lowest concentration at
which a particular substance can be
quantitatively measured using a
specified laboratory procedure.
  Quantitative structure activity
relationship (QSAR) or structure activity
relationship (SAR) is a mathematical
relationship between a property
(activity) of a chemical and a number of
descriptors of the chemical. These
descriptors are chemical or physical
characteristics obtained experimentally
or from the structure of the chemical.
  Reasonable potential is where an
effluent is projected or calculated to
cause or contribute to an excursion
above any water quality standard,
including State narrative criteria for
water, by using procedures which at a
minimum account for existing controls
on point and nonpoint sources of
pollution, the variability of the pollutant
or pollutant parameter in the effluent,
the sensitivity of the species to toxicity
testing (when evaluating whole effluent
toxicity), and where appropriate the
dilution of the effluent In the receiving
water.
  Relative source contribution (RSC) is
the factor (percentage) used in
calculating a HNV or HNC to account
for all sources of exposure to a
contaminant. The RSC reflects the
percent of total exposure which can be
attributed to surface water through
water intake and fish consumption.
  Risk associated dose (RADjis a dose
of a known or presumed carcinogenic
substance in rnilligrams/kilogram/day
which, over a lifetime of exposure is
                      calculated to be associated with a
                      plausible upper-bound incremental
                      cancer risk equal to one hi 100,000..
                        Slope factor, also known as qi*, is the
                      incremental rate of cancer development
                      calculated through use of a linear
                      multistage model. It is expressed in (mg/
                      kg)/day of exposure to the chemical in
                      question.
                        Species mean acute value (SMAV) is
                      the geometric mean of the results of all
                      flow-through acute toxicity tests (LC50)
                      in which the concentrations of test
                      material were measured. For a species
                      for which no such result is available, the
                      SMAV should be calculated as the
                      geometric mean of all available acute
                      values.                         '   •
                        Species mean chronic value (SMCV)
                      is the geometric mean of the results of
                      aH flow-through chronic toxicity tests in
                      which the concentrations of test
                      material were measured. For a species
                      for which no such result is available, the
                      SMCV Should be calculated as the
                      geometric mean of all available chronic
                      values.
                        Steady-state BAF/BCFis a BAF or
                      BCF that does not change substantially
                      over time. It is the BAF or BCF that
                      exists when uptake and depuration are
                      equal.
                        Stream design flow is the stream flow
                      that represents critical conditions,
                      upstream of the source, for protection of
                      aquatic life, human health, and wildlife.
                        Superlipophilic chemicals are
                      chemicals with a very strong affinity for
                      lipids, having a log Kow greater than 6.5.
                        Threatened or endangered species are
                      those species that are listed as
                      threatened or endangered under the
                      Federal Endangered Species Act.
                        Threshold effect is an effect of a
                      substance for which there is a
                      theoretical or empirically established
                      (Jose or concentration below which the
                      effect does not occur.
                        Tier I criteria are numeric values
                      derived by use of the Tier I
                      methodologies hi appendixes A, C and

                      appendix B of this part, and the
                      procedures in appendix F of this part,
                      that either have oeen adopted as
                      numeric criteria into a water quality
                      standard or are used to implement
                      narrative water quality criteria.
                        Tier II vajues are numeric values
                      derived by use of the Tier n
                      methodologies in appendixes A, C and
                      D of this part, the methodology in
                      appendix B of this part, and the
                      procedures in appendix F of this part,
                      that are used to implement narrative
                      water quality criteria.
                        Total maximum daily load (TMDL) is
                      the sum of the individual wastelpad
                      allocations for point sources and load
allocations for nonpoint sources and
natural background, as more fully
defined at 40 CFR 130.2(i)'. A TMDL sets
and allocates the maximum amount of
a pollutant which may be introduced
into a water body and still assure
attainment and maintenance of water
quality standards.
  Tributaries of the Great Lakes System
means,all waters of the Great Lakes
System that are not open waters of the
Great Lakes, or connecting channels.
  Uncertainty factor (UF) is one of
several, generally 10-fold, factors used
in operationally deriving criteria from
experimental data.
  Uptake is the sorption of a substance
into or onto an aquatic organism.
  Wasteload allocation (WLA) is the.
portion of a receiving water's loading
capacity that is allocated to one of its
existing or future point sources of
pollution, as more fully defined at 40
CFR130.2(h).
  Wet weather point source is  a point
source which is either,an outfall from a
municipal separate storm sewer as
defined at 40 CFR 122.26(b)(?), a storm
water discharge associated with
industrial activity as defined at 40 CFR
122.26(b)(14), or a combined sewer
overflow. A  combined sewer overflow is
a flow from a combined sewer in excess
of the interceptor or regulator capacity
which is  discharged into a receiving
water body without going to a  publicly
owned treatment works. Combined
sewer overflows occur prior to the
headworks of a treatment facility. A
storm water discharge associated with
industrial activity which is mixed with
process wastewater shall not be
considered a wet-weather point source.

§132.3  Adoption of criteria.
  The Great Lakes States and Tribes
shall adopt numeric water quality
criteria for the purposes of section
303(c) of the Clean Water Act applicable
to waters of the Great Lakes System in
accordance with § 132.4(d) that are
equal to or more restrictive than:
  (a) The acute water quality criteria for
protection of aquatic life in Table 1 of
this part, or a site-specific modification
thereof in accordance with procedure 1
of appendix F of this part;
  (b) The chronic water quality criteria
for protection of aquatic life in Table 2
of this part,  or a site-specific >
modification thereof in accordance with
procedure 1 of appendix F of.ihis^partu
  (c) The water quality criteria for
protection of human health in Table 3
of this part, or a site-specific
modification thereof in accordance with
procedure 1 of appendix F of this part;
and

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                 Federal Register /VojL 58, No. 72 / Friday, April 16, 1993 /Proposed Rules
                                                                     21013
   (d) The water quah'fy criteria for
 protection of wildlife in Table 4 of this
 part, or a site-specific modification ,
 thereof in accordance wijii procedure 1
 of appendix F of this part

 §132.4 State adoption and application of.
 methodologies, policies and procedures.
   {a)The Great Lakes States and Tribes
 shall adopt requirements applicable to
 waters of theGreat Lakes System for the.
 purposes of sections 118,303,^ and 402
 of the Clean Water Act that are
 consistent with:
   (1) The definitions in §132.2;
   (2) The Methodologies for        "
 Development of Aquatic Life Criteria
 and Values in appendix A of this part;
   (3) The Methodology for Development
 of Bioaccumulation Factors in appendix
 B of this part;
  , (4) The Methodologies for
 Development of Human Health Crjiteria
 and Values in appendix C of this piart;
   <5) The Methodologies for
 Development of Wildlife Criteria and
 Values in appendix D of this part;
   (6) The Antidegradation Policy in
 appendix E of this part; and
   (7) The Implementation Procedures in
 appendix F of this part
   (b) Except as provided in paragraphs
 {g) and (h) of this section, the Great
 Lakes States and Tribes shall use the
 methodologies designated as Tier i;
 methodologies in appendixes A, C, and:
 D of this part, the methodology in
 appendix B of this part, and fee
 procedures in appendix F of this part
 when adopting or revising numeric
 water quality criteria for the purposes of
 section 303(c) of the Clean Water Act for
 the Great Lakes System.    -
•   (c) Except as provided La paragraphs
 (gj and (h) of this section, the Great
 Lakes States and Tribes shall apply the
 methodologies designated as Tier I and
1 Tier n methodologies in appendixes A,
 C, and D of this part, the methodology
 in appendix B of this part, and the
 procedures in appendix F of this part to
- develop numeric values when
 implementing narrative water quality
 criteria adopted for purposes of section
 303(c) of the Clean Water Act.
   (d) The water quality criteria and  -
 values adopted or developed pursuant
 to paragraphs (a) through (c) of this
 section shall apply as follows:  •   -
   jl) The acute water quality criteria
 and values for the protection of aquatic
 life, or site-specific modifications
 thereof,'shall apply to all waters of the
 Great Lakes System.
   (2) The chronic water quality criteria
 and values for the protection of aquatic
 life, or site-specific modifications
 thereof, shall apply to all waters of the
 Great Lakes System.
   {3) The water quality criteria and •
 values for protection of human health,
 orsiterspecific modifications thereof,
 shall apply as follows:
   (i) Criteria and values derived as
 HCVrDrinking and HNV-Drinking shall
 apply to the Open Waters of the Great
 Lakes, all connecting channels of &e
 Great Lakes, and all other waters of the
 Great Lakes System that have been
 designated as public water supplies by
 any State or Tribe  in accordance with 40
 GFR131.1Q.
   (ii) Criteria and values derived as
 HCV-Nondrinking and HNV-
 Nondrinking shall apply to all waters of
 the Great Lakes System other than those
 in paragraph (d)(3)(i) of this section.
   (4)I Criteria and values for protection
 of wildlife, or site-specific modifications
 thereof, shall apply to all waters of the.
 Great Lakes System.
   (e) The Great Lakes States and Tribes
 shall apply the implementation
 procedures adopted pursuant to
 § 132.4{a){7) for all applicable purposes
 under the Glean Water Act, including
 developing total maximum daily loads
 for the purposes of section 303{d) and
 water quality-based effluent limits for
 the purposes of section 402, in
 establishing controls on the discharge of
 any pollutant to the Great Lakes System
 by any point source with the following
 exceptions:      .
   (1) The Great Lakes States and Tribes
 are not required to apply these
 implementation procedures to   ,
 establishing controls on the discharge of
 any pollutant by a wet weather point
 source. Any adopted implementation
 procedures shall conform with all
 applicable Federal, State and Tribal
 requirements.       •
   (2) The Great Lakes States and Tribes
 may, but are not required to, apply
 procedures 1,2,3,4,5,7,8, and 9 of
 appendix F of this part in establishing
 controls on the discharge t)f any
 pollutant set forth in Table 5 of this
 part. Any procedures.applied in lieu of
'these implementation procedures shall
 conform with all applicable Federal.,
 State, and Tribal requirements.
   (fj The Great Lakes States and Tribes
 shall apply the antidegradation policy
 adopted pursuant to § 132.4(a)(6) for all
 applicable purposes under the Glean
 Water Act, including 40 CFR 131.12, for
 all pollutants.     .          •..'/'.,
   (g) For pollutants listed in Table 5 of
 this part, or for any pollutant other than
 those in Table 5 of this part for which
 the State or Tribe demonstrates that one
 or more methodologies or procedures in
 this part are not scientifically
 defensible, the Great Lakes States and
 Tribes shall:                  '
  (1) Apply any methodologies and   .
procedures acceptable under 40 CFR
part 131 when developing water qualify
criteria or implementing narrative
criteria; and
  (2) Apply the implementation
procedures in appendix F of this part or
alternative procedures consistent with
all applicable Federal, State, and Tribal
laws.".     -.   •   '.'••'.••  --:    -  •'  '•  -'-
  (h) Nothing in this part shall prohibit
the Great Lakes States and Tribes from
adopting numeric water qualify criteria;
narrative criteria, or water qualify
values that are more stringent than
criteria or values that would be derived
from application of the methodologies
set forth in appendixes A, B, C, and D
of this part or to adopt antidegradation
policies and implementation procedures
more stringent than those set forth in
appendixes E and F of this part

§ 132.5  Procedures for adoption and EPA
review.  ~.
  (a) The Great Lakes States and Tribes
shall adopt and submit for EPA review
and approval the criteria,
methodologies, policies, and procedures
developed pursuant to this part no later
than eighteen months from the date of
final publication of this part
  •{b) The following elements must be
included in each submission to EPA for
review:
  (1) The criteria, methodologies,
policies, and procedures developed
pursuant to this part;
  (2) Certification by the Attorney
General or other appropriate legal
authority pursuant to 40 CFR 123.62
and 40 CFR 131,6Ce) as appropriate;     .
  (3-) All other information: required for
submission of NPDES program
modifications under 40 CFR 123.62; and
  (4) General information which will .'
aid EPA in determining whether the
criteria, methodologies, policies and
procedures are consistent with the
requirements of the Clean Water Act
and this part; as well as information on
general policies which may affect then*
.application and implementation.
.  (c) If a Great Lakes State or Tribe fails
to submit any criteria, methodologies,
policies, and procedures pursuant to
this part to EPA for review, the
requirements of this part shall apply to
discharges within the State or Federal
Indian Reservation upon EPA's
publication Of a" final rule indicating the
effective date of the part 132
requirements hi the identified
jurisdictions,.   ;'            -,'
  fd) If a Great Lakes State or Tribe
submits criteria, methodologies,   '
policies, and procedures pursuant to
this part to EPA for review, EPA shall
issue public notice and provide a  >;

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21014
Federal Register / Vol. 58, No.  72 / Friday, April  16,  1993  / Proposed Rules '
minimum of 30 days for public
comment on all received State or Tribal
submissions. The public notice shall
conform with the requirements of 40
CFR 123.62. Following the public
comment period, EPA shall either:
  (1) Publish notice of approval of the
submission in the Federal Register
within 60  days of such submission; or
  (2) Notify the State or Tribe within 90
days of such submission that EPA has
determined that all or part of the
submission is inconsistent with the
requirements of the Clean Water Act or
this part and identify any necessary
changes to obtain EPA approval. If the
State or Tribe fails to adopt such
changes within 90 days after the
notification, EPA shall publish a notice
in the Federal Register identifying the
approved  and disapproved elements of
the submission and a final rule in the
Federal Register identifying the
provisions of part 132 that shall apply
to discharges within the State or Federal
Indian Reservation.
  (e) EPA's approval or disapproval of
a State or  Tribal submission shall be
based on the requirements of this part
find of the Clean Water Act. EPA will
determine that the criteria,
methodologies, policies, and procedures
in a State  or Tribal submission are
consistent with the requirements of this
part if:
   (1) For pollutants listed in Tables 1,
2,3, and 4 of this part. The Great Lakes
State or Tribe has adopted numeric
water quality criteria equal to or more
restrictive than each of the numeric
criteria in Tables 1,2,3, and 4 of this
part, talcing into account any site-
specific criteria modifications in
accordance with procedure 1 of
appendix F of this part;
   (2) For pollutants other than those
listed Sn Tables 1,2,3, and 4 of this
part. The  Great Lakes State or Tribe
demonstrates that either:
   (i) It has adopted numeric criteria in
its water'quality standards that were
derived, or are  equal to or more
restrictive than could be derived, using
                      the methodologies in appendixes A, B,
                      C, and D of this part, and the site-
                      specific criteria modification procedures
                      of appendix F of this part; or
                        (ii) It has adopted a procedure by  "
                      which water quality-based effluent
                      limits and total maximum daily loads
                      are developed using the more restrictive
                      of:
                        (A) Numeric criteria adopted by the
                      State into State water quality standards
                      prior to the date of final publication of
                      this part; or
                        (B) Water quality criteria and values
                      derived pursuant to § 132.4(c); and
                        (3) For methodologies, policies, and
                      procedures. The Great Lakes State or
                      Tribe has adopted methodologies,
                      policies, and procedures equal to or
                      more restrictive than the corresponding
                      methodology, policy, or procedure in
                      § 132.4. The Great Lakes State or Tribe
                      may adopt provisions which are more
                      restrictive than those contained in this
                      part; however, a more restrictive
                      individual provision is not justification
                      for adoption of a less restrictive'
                      requirement for a separate element of
                      this part.
                         (f) EPA's approval of the elements of
                      a State's or Tribe's submission will
                      constitute approval under section 118 of
                      the Clean Water Act, approval of the
                      submitted water quality standards
                      pursuant to section 303 of the Clean
                      Water Act, and approval of the
                      submitted modifications to the State's or
                      Tribe's NPDES program pursuant to
                      section 402 of the Clean Water Act.

                      § 132.6 Application of part 132
                      requirements In Great Lakes States and
                      Tribes  [Reserved]
                         [Note: The text of this section is reserved.
                      Text will be added as necessary through
                       subsequent rulemaking in accordance with
                       §132.5.]
Tables to Part 132

TABLE 1.—ACUTE WATER  QUALITY CRI-
  TERIA  PCJR PROTECTION  OF AQUATIC
  LIFE IN AMBIENT WATER
Chemical
Arsenic (III) 	
Cadmium 	 	 	 .;...
Chromium (III) 	
Chromium (VI) 	
CoDoer 	

Dieldrin 	 	
Endrin 	
Lindane 	 	 	
Mercury (II) .'. 	 	 	
Nickel 	 	 	

Pentachlorophenol 	 	 	 	
Phenol 	 	 	
Total Selenium 	
Zinc 	
CMC (ng/L)
340
12.1
1 1000
16
17.3
22
0.24
0.09
0.95
0.83
1260
.065
2 5.3
3700
20
'67
  1 The toxicity of this chemical  is hardness
related;  the  criterion  expressed  is  at  a
hardness of 50 mg/L.
  2 The  criterion for this chemical  is  pH
dependent; the criterion expressed is at a pH
of 6.5.
TABLE 2.—CHRONIC WATER QUALITY CRI-
  TERIA  FOR  PROTECTION  OF  AQUATIC
  LIFE IN AMBIENT WATER
Chemical
Arsenic (III) 	 	 	

Chromium (III) 	
Chromium (VI) 	


Dieldrin 	 	 ....."... 	
Endrin 	 	
Mercury (II) 	 	 	 	
Nickel 	
Parathion 	 	 	 	
Pentachlorophenol 	
Phenol 	 	
Total Selenium 	
Zinc 	
CCC(ng/L)
150
'0.78
M9
11
15.2
5.2
0.056
0.037
0.44
129
0.013
2 3.3
120
5.0
160
  1The toxicity of this chemical is hardness
 related;  the criterion expressed  is  at  a
 hardness of 50 mg/L.
  2 The toxicity of this chemical is pH related;
 the criterion expressed is at a pH of 6.5.
                                        ,        ,,.      .
                          TABLE 3.—WATER QUALITY CRITERIA FOR PROTECTION OF HUMAN HEALTH
Chemical
. • • '. • in ", in - 	 . ' , '*•'.; i- -.-••'. ;vi»
&0nz@fK) ... 	 	
Chlordano . 	
Chlfwihflfiyflfwi

DDT . . . 	
DjoWrin . " 	 .". 	 „..»..!!..
2 4- Di mo thy! phono!
2 4-Diotoophonol .... . '. . 	
HoptacMor 	 , 	 	 	
HNV(ng/L)
Drinking
2.E4
9
5.E5
8.E5
1.0
7
3.E5
7.E4
300
Nondrinking
2.E5
9
1.8E6
6.E7
1.0
7
5.E5
1.7E6
300
HCV(ng/L)
Drinking
1.E4
0.2

0.07
0.1

0.5
Nondrinking
1.E5
r. 0.2

0.07
0.1

0.5 ,

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                  Federal Register  /  Vol.  58,  No. 72  /Friday,  April 16, 1993  / Proposed Rules    '      210115
                   ,,        ,           .    .   ,.t.,                                     .   .
                    , TABLE a.^VVATER QUAUTY CRITERIA FOR PROTECTION OF HUMAN HEALTH— Continued
••• . ' -! • ' Chemical
Hexachlorobenzene 	 	 , 	 	 	 	 	 	 	
Hexachloroethane 	 	 	 	 	 	 	 ,
Lindane 	 ,-. 	 	 	 	 	 	 	 	 	 '
Mercury1 	 	 	 	 	 	 	 	 	 	 ..: 	 	
Methylene chloride 	 	 ..,...., 	 '..- 	 	 	 .
PCBs (class) ..........:„ 	 	 	 	 	 .:...... 	 	 	 	 	
Pentachlorophenol 	 	 	 .
2,3,7,8-TCDD .. 	 „.... 	 	 	 	
Toluene 	 ,...". 	 	 	 	 	 	 	
Toxaphene , 	 	 	 	 	 	
Trichlordethylene ...;.....'..............; 	 ;„ 	 ...; 	 	 	 	
HNV(ng/L)
Drinking •
10 '->
2.E3
,700
-. • . ' 2
2.E6
2.E5
1.E-4
6.E6
6
6.E5
Nondrinking
10
3.E3
800
- »•'£''
9.6E7
2.E5
1B-4
. 2.6E7
6
5.E6
HCV(ngA.)
Drinking
0.1
3.E3 .

5.E4
3.E-3 '
500
1.E-5
0.02
3.E4
Nondrinking
0.1
4.E3

2.E6
3.E-3
' • - 600 >
1.E-5
0.02
2.E5
   -1 Includes MetHylmercury.
  TABLE 4.—WATER QUALITY CRITERIA FOR
    .  ,. PROTECTION OF WILDLIFE
Chemical - . .
DDT and Metabolites 	 	 	
Mercury (including
Methylmercury) ...„..:. 	
Polychlorinated biphenyls
(PCBs) 	 	 	 	
2,3,7,6-TCDD 	
Criteria (pg/L)
0.87
180
17
• 0.0096
 Table 5. Excluded pollutants
 Alkalinity            .       •„       ;
 Ammonia  '                 •.•.-".
 Bacteria                       ;,.
. Biochemical oxygen demand (BOD)
 Chlorine
 Color                     ;   \  .'.;- .;.
 Dissolved oscygen:        ;
 Dissolved solids          .
 Hydrogen sulfide ,
 PH                 .-.  .,   -   -..;
 Phosphorus                       .
 Salinity.
 "Sulfide      '        :   ..       '
 Temperature
 Total and suspended solids
 Turbidity

 Table 6. Pollutants of Initial Focus in
 the Great Lakes Water Quality
 Initiative  •         ,   •
   A. Pollutants that are biqaccumulative
 chemicals of concern (BCCsJ:
 Aldrin
 4-Bromophenyl phenyl ether
 Chlordane
 4,4-DDD; p.p-DDD; 4,4-TDE; p.p-TDE
^^-DDE; p,p-DDE               .
 4,4-DDT; p,p-DDT
 Dieldrin
 Endrin                  •    ;
 Hepjachlor  ,;               ,;
 Heptachlor eppxide              ,
 Hexachlorohenzene      .   ..-.;,.   ,.
 Hexachlorobutadiene; hexachiorc--l,3-
   butadiene  :               .'',..
 Hexachlorocyclohexane; BHC
 alpha-Hexacmordcyclohexane; alpha-:
   BHC     '  , .  -;'-.     ^  '     -  •.•:
 beta-Hexachlorocyclohexane; beta-BHC
 delta-Hexachlproeyclohexane; delta-   •
  BHC           '
. Lindane; gamma-BHC; gamma-
 • hexachlorocyclohexane
 Mercury
 Methoxychlor            -\,'
 Mirex; dechlorane
 Octachlorostyrene
 PCBs; polychlorinated biphenyls
 Pentachlorobenzene  •
 Photomirex
 2,3,7,^TCDD; dioxin"'
 1,2,3,4-Tetrachlorpbenzene       .  "
 1,2,4,5-Tetrachlorobenzene
Toxaphene           -   ,  :
  B. Pollutants that are potential
bioaccumulative chemicals of concern:
Benzo[a]pyrene; 3,4-benzopyrene
 3,4-Benzoitluoranthene;
 • benzo[b]fluoranthene   '.
 11,12-BenzofluoranJhene;
  benzo [k] fluoranthene
 l,12-Benzoperylene;benzo[ghi]perylene
4-Chlorophenyl phenyl ether
l,2:5,6-Dibenzanthracene;          '
  dib8nz[a,h]anthracene
Dibutyl phthalate; di-n-butyl phthalate
mdeno[l,2,3-cd]pyrene; 2,3-o-
  phenylene pyrene
Phenol         -.-•'•
Toluene; methylbenzene
  C. Pollutants that are neither
bioaccumulative chemicals of concern
nor potential bioaccumulative       ;
chemicals of concern:
Acenaphthene.         '        •
Acenaphthylene-           -
Acrolein; 2-propenal              .
Acrylonitnle
Aluminum
Anthracene  .'' t-       ,     :
Antimony  . . "                •
Arsenic     '   '   :    '  .  .   '    ••'.
Asbestos     ;  ;              v
l^-Benzanthracenejbenztalanthracene
Benzene                ;   ^
Benzidine
Beryllium         "  -..        "
Bis{2-chloroeth6xy)methane
 Bis(2-chloroethyl) ether
 Bis(2-chloroisopropyl) ether      '.  . •
 Bromdform; tribromomethane
 Butyl benzyl phthalate
 Cadmium
 Carbon tetrachloride;
   tetrachloromethane  ,
 Chlorobenzene
 p-Chloro-m-cresol; 4-chloro-3-
   methylphenol      ..-'••
 Chlorodibromomethane
 Qiloroethane         .
 2-Chloroethyl vuiyl ether
 Chloroform; trichlorbmethane
 2-Chloronaphthalene
• 2-Chlorophenol   •
 Chlorpyrifos t  ~-
 Chromium  .-;
 Chrysene  .         ,
 Copper                   " "
 Cyanide            ••;.'.
 2,4-D; 2,4-Dichlorophenoxyacetic acid
 DEHP; di(2-ethylhexyl) phthalate
 Diazinon
 1,2-Dichlorpbenzene
 1,3-^Dichlorobenzene
 1,4-Dichlorpbenzene
 3,3-Dichlorobenziduie
 Dichlorobromomethane;
   bromodichloromethane
 1,1-Dichloroethane
 1,2-Dichloroethane; vinylidene chloride
 1,1-Dichloroethylene
 1,2-trans-Dichloroethylene
 2,4-Dichlorophenol           ..'-.".
 1,2-Dichloropropane          "
 1,3-Dichloropropene; 1,3-
   dichloropropylene
 Diethyl phthalate
 2,4-Dimethylphenol; 2,4-xylehol
 Dimethyl phuialate
 4;6-Dinitro-o-cresol; 2-methyl-4,6>-
-  dinitrophenol
 2,4-Dinitrophenol ..               v.
 2,4-Dinitrotoluene        .      ; .   ''
 2,6-Dmitrotoluene .           .
\Dioctyl phthalate; di-n-octyl phthalate
 1,2-Diphenylhydrazine 	
 Ehdosulfan; thiddan     • 1;  ;
 alpha-Endosulfan                 v"

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21016           Federal  Register  / Vol.  58, No. 72  /Friday, April  16, 1993  /  Proposed Rules
beta-Endosulfan
Endosulfan sulfate
Endrin aldehyde
Ethylbenzane
Fluoranthona
Fluorene; 9H-fluore,ne
Fluorido
Gulbion
Hoxachlorocyclopentadiene
Hexachlorcethane
Iron
Isophorono
Lead
Malathion
Methyl bromide; bromomethane
Mathyl chloride; chloromethane
Methylene chloride; dichloromethane
Naphthalene
Nickel
Nitrobenzene
2-Nitrophenol
4-Nitroph0nol
N-Nitrosodimethylamine
N-NitrosodJphenylamine
N-Nitrosodipropylamine; N-nitrosodi-n-
  propylamine
ParatMon
Pontachlorophenol
Fhenanthrene
Pyrena
Selenium
Silver        	      ""  ;	';
1,1,2,2-Tetradilorciethane
Tetrachloroethylene
Thallium
1,2,4-Trichlorobenzene  '
1,1,1-Trichloroethane
1,1,2-Trichloroethana
Trichloroethylene; trichloroethene
2,4,6-Trichlorophenol
Vinyl chloride; chloroethylene;
  chloroethene
Zinc
Appendix A to Part 132—Great Lakes
Water Quality Initiative Methodologies
for Development of Aquatic Life
Criteria and Values
Methodology for Deriving Aquatic Life
Criteria'. Tier I
I. Definitions
  A. Material of Concern, 1. Each saparate
chemical that does not ionize substantially in
mo»t natural bodies of water should usually
bo considered a separata material, except
possibly for structurally similar organic
compounds that only exist in large quantities
as commercial mixtures of the various
compounds and apparently have similar
biological, chemical, physical, and
toxicologies! properties.
  2. For chemicals that ionize substantially
in most natural bodies of water (e.g. some
phenols and organic acids, soma salts of
phenols and organic acids, and most
inorganic salts and coordination complexes
of metals and metalloids), all forms that
would be in chemical equilibrium should
usually be considered one material. Each
different oxidation state of a metal and each
 different non-ionizable cpvalently bonded
 organometallic compound should usually be
" considered a separate material.
   3. The definition of the material should
 include an operational analytical component
 Identification of a material simply as
 "sodium," for example, implies "total
 sodium", but leaves room for doubt. If "total"
 is meant, it must be explicitly stated. Even
 "total" has different operational definitions,
 some of which do not necessarily measure
 "all that is there" in all samples. Thus, it is
 also necessary to reference or describe the
 analytical method that is intended. The
 selection of the operational analytical
 component should take into account the
 analytical and environmental chemistry of
 the material, the desirability of using the
 same analytical method on samples from
 laboratory tests, ambient water, and aqueous
 effluents, and various practical
 considerations, such as labor and equipment
 requirements, and whether the method
'would require measurement in the field or
 would allow measurement after samples are
 transported to a laboratory.
   The primary requirements of the
 operational analytical component are that it
 be appropriate for use on samples of
 receiving water, that it be compatible with
 the available toxicity and bioaccumulation
 data without making extrapolations that are
 too hypothetical, and that it rarely result in
 underprotection or overprotection of aquatic
 organisms and their" uses.
   Because an ideal analytical measurement
 will rarely be available, a compromise
 measurement will usually have to be used.
 This compromise measurement must fit with  *
 the general approach that if an ambient
 concentration is lower than the criterion,
 unacceptable effects will probably not occur,
 i.e., the compromise measure must not err on
 the side of underprotection when
 measurements are made on a surface water.
 Because the chemical and physical properties
 of an effluent are usually quite different from
 those of the receiving water, an analytical
 method that is acceptable for analyzing an
 effluent might not  be appropriate for
 analyzing a receiving water, and vice versa.
 If the ambient concentration calculated from
 a measured concentration in an effluent is
 higher then the criterion, an additional
 option is to measure the concentration after
 dilution of the effluent with the receiving
 water to determine if the measured
 concentration is lowered by such phenomena
 as complexation or sorption. A further
 option, of course, is to derive a site-specific
 criterion. Thus, the criterion should be based
 on an appropriate analytical measurement,
 but the criterion is not rendered useless if an
 ideal measurement either is not available or
 is not feasible.
   Note: The analytical chemistry of the
 material might have to be taken into account
 when defining the material or when judging
 the acceptability of some toxicity tests, but a
 criterion must not be based on  the sensitivity
 of an analytical method. When aquatic
 organisms are more sensitive than routine
. analytical methods, the proper solution is to
 develop better analytical methods, not to
 underprotect aquatic life.
   B. Acute Toxicity. An adverse effect
 (usually lethality) in an aquatic organism as
a result of exposure to a toxicant for a
relatively short period (i.e., 24 to 96 hours)
of tune relative to the organism's natural life
span.
  C. Chronic Toxicity. An adverse effect (i.e.,
reduced growth, reproductive effects, etc.> in
addition to lethality) in an aquatic organism
as a result of exposure to a toxicant for a
significant portion of time relative to the
organism's natural life span.
D. Collection of Data
  A. Collect all data available on the material
concerning toxicity to aquatic animals and •,
plants.
  B. AH data that are used should be
available in typed, dated, and signed hard
copy (publication, manuscript, letter,
memorandum, etc.) with enough supporting
information to indicate that acceptable test
procedures were used and that the results are
probably reliable. In some cases, it may be
appropriate to obtain written information
from the investigator, if possible. Information
that is not available for distribution shall not
be used.
  C. Questionable data, whether published or
unpublished,  must not be used. For example,
data must be rejected if they are from tests
that did not contain a control treatment, tests
in which too many organisms in the control
treatment died or showed signs of stress or
disease, and tests in which distilled or
deionized water was used as the dilution
water without the addition of appropriate
salts.                               '
  D. Data on technical grade, materials may
be used if appropriate, but data on
formulated mixtures and emulsifiable
concentrates of the material must not be
used.
  E. For some highly volatile, hydrolyzable, •
or degradable materials, it is probably
appropriate to use only results of flow-
through tests in which  the concentrations of
test material in test solutions were measured
using acceptable  analytical methods.
  F. Data must be rejected if obtained using:
  1. Brine shrimp, because they usually only
occur naturally in water witn salinity greater
than35g/kg.
  2. Species that do not have reproducing .
wild populations in North America.
  3. Organisms that were previously exposed
to substantial concentrations of the test
material or other contaminants.
  4. Saltwater species except for use in
deriving acute-chronic ratios.
  G. Questionable data, data on formulated
mixtures and  emulsifiable concentrates, and
data obtained with non-resident species or
previously exposed organisms may be used
to provide auxiliary information but shall not
be used in the derivation of criteria.
III.  Required Data
.  A. Certain data should be available to help
ensure that each of the major kinds of
possible adverse effects receives adequate
consideration. Results of acute and chronic
toxicity tests with representative species of
aquatic animals are necessary so that data
available for tested species can be considered
a useful indication of the sensitivities of
appropriate untested species. Fewer data
concerning toxicity to aquatic plants are
required because procedures for conducting

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                   Federal Register  / Vol.  58, No. 72 /  Friday.  April 16, 1993 / Proposed Rules
                                                                              21017
 tests with plants and interpreting the results
 of such tests are not as well developed,
   B. To derive a Great Lakes Tier I criterion
 for freshwater aquatic organisms and their
 uses, the following must be available:;
   1, Results of acceptable acute tests (see
 section IV of this appendix) with at least one
 species of freshwater animal in at least eight
 different families such that all of the    .
 following are included:              ,
   a. The family Salmonidae in the class
 Osteichthyes;
 ' - • b. One ojther family (preferably a
 commercially, orrecreationally important,
 warm-water species) in the class Osteichthyes
, (e.g., bluegill, channel catfish, etc.);
   c.,A third family in the phylum Chordata
 (e.g., fish, amphibian, etc.);              __
   d. A planktonic crustacean (e.g., a
 cladoceran, copepod, etc.);
   e. A benthic crustacean (e.g., ostracod,
 isopod, amphipod, crayfish, etc.);
   f. An insect (e.g., mayfly, dragonfly,
 damselfly, stonefly, caddisfly, mosquito,
 midge, etc.); _             •     -
   g. A family in a phylum other than
 Arthropoda or Chordata (e.g., Rotifera,
 Annelida, Mollusqa, etc.);         -
   h. A family in any order of insect or any
 phylum not already represented.
   2. Acute-chronic ratios (see section VI of
 this appendix) with a species of aquatic'
 animal in at least three different families
.provided that of the three species:
   a. At least one is a fish;
  b. At least one is an invertebrate; and
  , c. At least one species is an acutely
 sensitive freshwater species (the other two
 may be saltwater species).
   3. Results of at least one acceptable test
 with a freshwater algae or vascular plant is
 -desirable but not required for criterion.
 derivation (see section VIE of this appendix).
 If plants are among the aquatic organisms
_most sensitive to the material, results of a test
 With a plant in another phylum (division)  •
 should also be available. -           " - •
  C. If all required data are available, a
 numerical criterion can usually be derived, _
 except in some cases. Also, if a criterion  is
 to be related to a water quality characteristic
 (see sections V and VII of this appendix)
 more data will be required.
   Similarly, if all required data are not
 available, a numeric criterion should not be "
 derived except in special cases. For example,
 derivation of a criterion might not be possible
 if the available acute-chronic  ratios vary by
 more than a factor of ten with no apparent
 pattern. Also, if a criterion is to be related to
 a water quality characteristic  (see sections V
 and VII of this appendix) more data will be
 required.        .
   Similarly, if all required data are not
 available, a numeric criterion should not be
 derived except in special cases.,
  D. Confidence in a criterion usually
 increases as the amount of available pertinent
 information increases. Thus, additional data
 are usually desirable.
 IV. Final Acute Value
. A. Appropriate measures of the acute
 (short-term) toxicity :of the material to a
 variety of species of aquatic animals are used
 to calculate the Final Acute Value. The Final
 Acute Value is an estimate of the
 concentration of the material corresponding
 to a cumulative probability of 0.05 in tha
 acute tbxicity values for the genera with
 which acceptable acute tests have been
 conducted on the material. However, in some
 cases, if the Species Mean Acute. Value of a
 commercially or recreationally important
 species of the Great Lakes System is lower
 than that calculated Final Acute Value, then
 the Species Mean Acute Value replaces the
 calculated Final Acute Value in order to
 provide protection for that important species,
  B. Acute toxicity tests shall be conducted
 using acceptable procedures.
  C. Except for results with saltwater  '.
 annelids and mysids, results of acute tests
 during which the test organisms were fed
 shall not be used, unless data indicate that
 the food did not affect the toxicity of the test
 material.
  • D. Results of acute tests conducted hi •.
 unusual dilution water, e.g., dilution water hi
 which total organic carbon or particulate
 matter exceeded five mg/L, should not be
 used, unless a relationship is developed
 between acute toxicity and organic carbon or
 particulate matter, or unless data show that
 organic carbon or particulate matter, etc., do
 not affect toxicity.         .
  E. Acute values must be based upon
 endpoints which reflect the total severe
 adverse impact of the test material on tha
 organisms used hi the test. Therefore, only
 the following kinds of data on acute tpxicity  '
 to aquatic animals shall be used:
  1. Tests with daphnids and'other
 cladocerans must be started with organisms
 less than 24 hours old and tests with midges
 should be started with second or third instar
 larvae. The results should be the 48-hour
EC50 based on percentage of organisms lulled •
 or immobilized, if such an EC50 is not
 available for'a test, the 48-hour LC50 should
be used in place of the desired 48-hour ECSO.
 An ECSO or LC50 of longer than 48 hours can
be used as long as the animals were not fed
 and the control animals were acceptable at
 the end of the test
  2. The results of srtest with embryos and
 larvae of barnacles, bivalve molluscs (clams,
mussels, oysters and scallops), sea urchins,
 lobsters, drabs, shrimp and abalones should
be the 96-hour ECSO based on percentage of
 organisms with incompletely developed
shells plus percentage of organisms killed. If"
such an ECSO is not available from a test, of
the values that are available from the test, the
lowest of the following should be used in
place of the desired 96-hour ECSO: 48- to 96-
hour ECS Os based on percentage of organisms
with incompletely developed shells plus
percentage of organisms killed, 48-to 96-
hour ECS Os based upon percentage of
organisms with incompletely developed
shells, and 48- to 96-hour LCSOs.
  3. The result of tests with all other aquatic
animal species and older life stages of
barnacles, bivalve molluscs (clams, mussels,
oysters and scallops), sea urchins, lobsters,  ~
crabs, shrimp and abalones should be the 96-
hour EC50 based on percentage of organisms
exhibiting loss of equilibrium plus
percentage of organisms immobilized plus
percentage of organisms killed. If such an
ECSO is not available from a test, of the
values that are available from a test the lower
 of the following should be used in place of
 the desired 96-hour ECSO: the 96-hour ECSO
 based on percentage of organisms exhibiting
 loss of equilibrium plus percentage of  •
 organisms immobilized and the 96-hour
 LC50.
   4. Tests whose results take into account the
 number of young produced, such as most
 tests with protozoans, are not considered
 acute tests, even if the duration was 96 hours
 or less.
   5. If the tests were conducted properly,
 acute values reported as "greater than"
 values and those which are above the
 solubility bf the test material should be used,
 because rejection of such acute values would
 bias the Final Acute Value by eliminating  '
 acute values for resistant species.
   F. If the acute toxicity of the material to
 aquatic animals has been shown to be related
 to a water quality characteristic such as
 hardness or particulate matter for freshwater
 animals, refer to section V of this appendix.
 .  G. The agreement of the data within and
 between species must be considered. Acute
 values that appear to be questionable in     .
 comparison with other acute and chronic
 data for the same species and for other
 species in the same genus must not be used.
 For example, if the acute values available for
 a species or genus differ by more than a
 fector of 10, rejection of some or all of the
 values is probably appropriate.
. •  H. If the available data indicate that one or
 more life stages are at least a fector of two
 or more resistant than one or more other life
 stages of the same species, the data for the
 more resistant life stages must not be used in
 the calculation of the Species Mean Acute '
 Value because a species cannot be considered
 protected from acute toxicity if all of the life
 stages  are not protected,  ..•               ;
   I. For each species for which at least one
 acute value is available, the Species Mean
 Acute Value (SMAV) should be calculated as
 the geometric mean of the results of all flow-
 through tests in which the concentrations of
 test material were measured. For a species for
.which no such result is available, the SMAV
 shall be calculated as the geometric of all
 available acute values, i.e., results of flow-
 through tests in which the concentrations
 were not measured and results of static and
 renewal tests based on initial concentrations
 (nominal concentrations are acceptable for
 most test materials if measured
 concentrations are not available) of test
 material.
   Note 1: Data reported by original
 investigators must not be rounded off.
 Results bf all intermediate calculations must
 be rounded off to no fewer than four
 significant digits.
   Note 2: The geometric mean of N numbers
 is the Nth root of the product of the N
 numbers. Alternatively, the geometric mean
 can be calculated by adding the logarithms of
 the N numbers, dividing the sum by N, and
 taking the antilog of the quotient. The
geometric mean of two numbers is the square
root of the product of the two numbers, and
 the geometric mean of one number is that
number. Either natural (base e) or common
 (base 10) logarithms can be used to calculate
geometric means as long as they are used
consistently within each set of data, i.e., the
antilog used must match the logarithms used.

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                     Federal  Register / Vol. 58, No. 72 /  Friday,  April  16, J993  / Proposed Rules
     Note 3: Geometric means, rather than
   arithmetic means are used here because the
   distributions of sensitivities of individual
   organisms in toxidty tests on most materials
   and the distributions of sensitivities of
   species within a genus are more likely to be
   lognormal than normal. Similarly, geometric
   moans are used for acute-chronic ratios
   because quotients are likely to be closer to
   lognormal than normal distributions. In
   addition, division of the geometric mean of
   a set of numerators by the geometric mean of
                                           the set of denominators will result in the
                                           geometric mean of the set of corresponding
                                           quotients.
                                             J. tor each genus for which one or more
                                           SMAVs are available, the Genus Mean Acute
                                           Value (GMAV) shall be calculated as the
                                           geometric mean of the SMAVs available for
                                           the genus.
                                             K. Order the GMAVs from high to low.
                                             L. Assign ranks, R, to the GMAVs from "1"
                                           for the lowest to "N" for the highest. If two -
 or more GMAVs are identical, assign them
 successive ranks.
  M. Calculate the cumulative probability, P,
 for each GMAV as R/(N+1).
  N. Select the four GMAVs which have
 cumulative probabilities closest to 0.05 (if
 there are less than 59 GMAVs, these will
 always be the four lowest GMAVs).
  O. Using the selected GMAVs andPs,
 calculate.
                                          S2 =
                                                ^GMAV^-G^f1^
    Note; Natural logarithms (logarithms to
  btsa e, denoted as In) are used herein merely
  because they are easier to use on some hand
  calculators and computers than common
  (bra 10) logarithms. Consistent use of either
  will produce the same result
    P. If for • commercially or recreationally
  important species of the Groat Lakes System
.  tht goomatric mean of the acute values from
  flow-through tests hi which the
  concentrations of test material were
  metjured is lower than the calculated Final
  Acute Value (FAV), then that geometric mean
  must bo used as the FAV instead of the
  calculated FAV.
    Q, S«a section VI of this appendix. •
  V, Final Acute Equation
    A, When enough data are available to show
  that scute toxidty to two or more species is
  similarly related to a water quality
  characteristic, the relationship shall be taken
  Into account as described in sections V.B
  through G of this appendix or using analysis
  ofcovmriance. The two methods are
  equivalent and produce identical results. The
  manual method described below provides an
  understanding of this application of
  covariance analysis, but computerized
  versions of covariance analysis are much
  more convenient for analyzing large data sets.
  If two or more factors affect toxicity, multiple
  regression analysis shall be used.
    B. For each species for which comparable
  acute toxicity values are available at two or
  more different values of the water quality
  characteristic, perform a least squares
  regression of the acute toxicity values on the
  corresponding values of the water quality
  characteristic to obtain the slope and its 95
  percent confidence limits for each species.
    Note: Because the best documented
  relationship is that between hardness and
                                             _5>  GMAV)-s(]T(Vp))
                                           acute toxicity of metals hi fresh water and a
                                           log-log relationship fits these data, geometric
                                           means and natural logarithms of both toxicity
                                           and water quality are used in the rest of this
                                           section. For relationships based on other
                                           water quality characteristics, such as pH,
                                           temperature, or salinity, no transformation or
                                           a different transformation might fit the data
                                           better, and appropriate changes will be
                                           necessary throughout this section.
                                            "C. Decide whether the data for each species
                                           is useful, taking into account the range and
                                           number of the tested values of the water
                                           quality characteristic and the degree of
                                           agreement within and between species. For
                                           example, a slope based on six data points
                                           might be of limited value if it is based only
                                           on data for a very narrow range of values of
                                           the water quality characteristic. A slope
                                           based on only two data points, however,   '
                                           might be useful if it is consistent with other
                                           information and if the two points cover a
                                           broad enough range of the water quality     ,
                                           characteristic. In addition, acute values that
                                           appear to be questionable in comparison with
                                           other acute and chronic data available for the
                                           same species and for other species in the
                                           same genus shall not be used. For example,
                                           if after adjustment for the water quality
                                           characteristic, the acute values available for
                                           a species or genus differ by more than a
                                           factor of 10, rejection of some or all of the
                                           values is probably appropriate. If useful
                                           slopes are not available for at least one fish
                                           and one invertebrate or if the available slopes
                                           are too dissimilar or if too few data are
                                           available to adequately define the
                                           relationship between acute toxicity and the
                                           water quality characteristic, return to section
                                           IV.G of this appendix, using the results of
                                           tests conducted under conditions and in
                                           waters similar to those commonly used for
                                           toxicity tests with the species.
  D. Individually for each species calculate
the geometric mean of the available acute
values and then divide each of the acute
values for a species by the me.an for the
species. This normalizes the acute values so
that the geometric mean of the normalized  •
values for each species individually and for
any combination of species is 1.0.
  E. Similarly normalize the values of the .
water quality characteristic for each species
individually.
  F. Individually for each species perform a
least squares regression of the normalized
acute values of the water quality
characteristic. The resulting slopes and 95
percent confidence limits will be identical to
those obtained in section B of this appendix.
Now, however, if the data are actually...
plotted, the line of best fit for each individual
species will go through the point 1,1 in the
center of the graph.
  G. Treat all of the "normalized data as if
they were all for the same species and
perform a least squares regression of all of the
normalized acute, values on the
corresponding normalized values of the
water quality characteristic to obtain the
pooled acute slope, V, and its 95 percent
confidence limits. If ail of the normalized
data are actually plotted, the line of best fit
will go through the point 1,1 in the center of
the graph.
.  H. For each species calculate the geometric
mean, W, of the acute toxicity values and the
geometric mean, X, of the values of the water
quality characteristic. (These were calculated
hi sections D and E of this appendix".)
  I. For each species, calculate the logarithm,
Y, of the Species Mean Acute Value (SMAV)
at a selected value, Z, of the water quality
characteristic using the equation:

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                    Federal  Register / Vol. 58,  No.  72 7 Friday, April 16,  1993 /  Proposed Rules
                                                                               21019
      Y = In W - V(ln X - In Z)
   J. For each species calculate the SMAV at;
 X using the equation:   "

 *'-.•.;•::;.'SMAV =eY.-,:.;;.
   Note: Alternatively, the SMAVs at Z can be
 obtained by skipping step H above, using the
 equations in steps I and J to adjust each acute
 value individually to Z, and then calculating
 .the geometric mean of the adjusted values for
 eac'h species individually. This alternative
 procedure allows an examination of the range
 of the adjusted acute values for each species.
   K. Obtain the Final Acute Value at Z by
 using the procedure described in sections
 IV. J through 'O of this appendix,
   L. If for a commercially of recreationally
 important species of the Great Lakes System
  the. geometric mean of the acute values at Z
  from flow through tests in which the
  concentrations of the test material were
  measured is lower than the Final Acule
  Value at Z, then the geometric mean must be
  usejd as the Final Acute Value instead of the
  Final Acute Value,           , '
    M. The Final Acute Equation is written as:
                                Final Acute Value = e(vPn(water(Juality <*aracfcristic)]+A-V[ln Z])
 where:' .
   V=pooled acute slope, and A=ln(Final
 Acute Value at Z).
   Because V, A, and'Z are known, the Final
 Acute Value can be calculated for any '
 selected value of the water quality
 characteristic.
 VL Final Chronic Value
   A.iDepending on the data that are available
 concerning-chronic toxicity to aquatic
 animals, the Final (Chronic Value might be
'calculated in the same manner as the'Final
 Acute Value or by dividing the Final Acute
 Value by the Final Acute-Chronic Ratio. In
 some cases, it may  not be possible to
 calculate a Final Chronic Value for Tier I.
   Note: As the'name implies, the acute-
 chronic ratio (ACR) is a way of relating acute
 and chronic toxicities. The acute-chronic
 ratio is basically the inverse of the
 application factor, but this new name-is
 better because it is  more descriptive and
 should help prevent confusion between
 "application factors" and "safety factors."
 Acute-chronic ratios and application factors
 are ways of relating the acute and chronic
 toxicities of a material to aquatic organisms.
 Safety factors are used to provide an extra
 margin of safety beyond the known or
 estimated sensitivities of aquatic organisms.
 Another advantage of the acute-chronic ratio
 is that it will usually be greater than one; this
 should avoid the Confusion as to whether a
 large application factor is one that is close to -
 unity or one that has a denominator that is
 much greater than the numerator.
   B. Chronic values shall be based on results
 of flow-through (except renewal is acceptable
 for daphnids) chronic tests in which the
 concentration of test material in the test
 solutions were properly measured at
 appropriate tunes during the test.
 - C. Results of chronic tests in which
 survival, growth, or reproduction in the
, control treatment was unacceptably low shall
 not be used. The limits of acceptability will
 depend on the species.
   D. Results of chronic tests conducted in
 unusual dilution water, e.g., dilution water in
 which total organic carbon or particulate   •
 matter exceeded five mg/L, shall not be used,
 unless a relationship is developed between
 chronic toxicity and organic carbon or
 particulate matter, or unless data show that
 organic carbon, particulate matter, etc., do
 not affect toxicity.
   E. Chronic values must be based on
 eridpoints and lengths of exposure
 appropriate to the species. Therefore, only
 results of the following kinds of chronic
 toxicity tests shall be used:
   1. Life-cycle toxicity tests consisting of  ;
 exposures of each of two or more groups of.,..'
 individuals of a species to a different
 concentration of the test material throughout
 a life cycle. To ensure that all life stages and
: life processes are exposed, tests with fish
 should begin with embryos or newly hatched
 young less than, 48 hours old, continue
 through maturation and reproduction, and
 should end not less than 24 days (90 days for
 sahnonids) after the hatching of the next
 generation. Tests with daphnids should begin
 with young less than 24 hours old and last
 for not less than 21 days, and for
 Ceriodaphnia not less than seven days. Tests
 with mysids should begin With young less.
 than 24 hours old and continue until seven
 days past the median time of first brood
 release.in the controls. For fish, data should
 be obtained and analyzed on survival and
 growth of adults and young, maturation of
 males and females, eggs spawned per female,
 embryo viability (salmonids only), and
 hatchability. For daphnids, data should be
 obtained and analyzed on survival and young
 per female. For toysids, data should be
 obtained and analyzed on survival, growth,
 and young per female;
   •2. Partial life-cycle toxicity tests consist of
 exposures of each of two more groups of
 individuals of a species of fish to a different
 concentration of the test material through
 most portions of a life cycle. Partial life-cycle
 tests are allowed with fish species that
 require more than a year to reach sexual
 maturity, so that all major life stages can be
 exposed to the test material in less than 15
 months. Exposure to the test material should
 begin with Immature juveniles at least two
 months prior to active gonad development,
 continue through maturation and
 reproduction, and end not less than 24 days
 (90 days for sahnonids} after the hatching of
 the next generation. Data should be obtained
 and analyzed on survival and growth of -
 adults and young, maturation of males and
 females, eggs spawned per female, embryo
viability (sahnonids only), and hatchability.
 • 3. Early life-stage toxicity tests consisting  -
 of 28-to 3 2-day (60 days post hatch for
sahnonids) exposures of the early life stages
of a species of fish from shortly after
fertilization through embryonic, larval, and
early juvenile development. Data should be
obtained and analyzed on survival and
growth.     •
   Note: Results of an. early life-stage.test are
used as predictions of results of life-cycle
and partial life-cycle tests with the same
 species. Therefore, when results of a life-
 cycle or partial life-cycle test are available,
 results of an early life-stage test with the
 same species should not be used. Also,
 results of early life^stage tests in which the
 incidence of mortalities or abnormalities
 increased substantially near the end of the
 test shall not Be used because the results of
 such tests are possibly not good predictions
 of comparable life-cycle or partial life-cycle
 tests.  •                      •
   F. A chronic value may be obtained by
 calculating the geometric mean of the lower
 and upper chronic limits from a chronic test
 or by analyzing chronic data using regression
 analysis.
   1. A lower chronic limit is the highest
 tested concentration:
   a. In an. acceptable chronic test;      .
   b. Which did not cause an unacceptable
 amount of adverse effect on any of the
 specified biological measurements; and
   c. Below which no tested concentration
 caused an unacceptable effect,
  .2. An upper chronic limit is the lowest
 tested concentration:
   a. In an acceptable chronic test;
   b. Which did not cause an unacceptable
 amount of adverse effect on one or more of
 the specified biological measurements; and
 ,  c. Above which all tested concentrations
 also caused such an effect.   ' •'.
   Note: Because various authors have used a
 variety of terms and definitions to interpret '
 and report results of chronic tests, reported
 results should be reviewed carefully. The
 amount of effect that is considered
 unacceptable is often based on a statistical
 hypothesis test, but might also be defined in
 terms of a specified percent reduction from
, the  controls. A small percent reduction (e^g.,
 three percent) might be considered
 acceptable even if it is statistically           "
 significantly different from the control,
 whereas a- large percent reduction (e.g., 30 .
 percent) might be considered unacceptable
 even if it is not statistically significant. •
   G. If the chronic toxicity of the material to
 aquatic animals has been shown to be related
 to a water quality characteristic such as
 hardness or particulate matter for freshwater
 annuals, refer to section VII of this appendix.
   H. If chronic values are available for
 species in eight families as described in ,
 section ffl.B.l of this appendix, a Species
 Mean Chronic Value (SMCV) shall be
 calculated for each species for which at least
 one chronic value is available by calculating
 the geometric mean of all chronic values
 available for the species, and appropriate
 Genus Mean Chronic Values' shall also be

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Federal Register /  Vol.  58, No. 72 / Friday, April  16, 1993  / Proposed  Rules
 calculated, "The Final Chronic Value shall be
 obtained using the procedure described in
 sections IVJ through O of this appendix. See
 section VI.M of this appendix.
   I. For each chronic value for which at least
 ona corresponding appropriate acute value is
 available, calculate an acute-chronic ratio,
 using for the numerator the geometric mean
 of the results of all acceptable flow-through
 (except static is acceptable for daphnids and
 midges) acute tests in the same dilution
 •water in which the concentrations are
 measured. For fish, the acute test(s) should
 b« conducted with juveniles. The acute
 tos:(s) should be part of the same study as the
 chronic test. If acute tests are not conducted
 as part of the same study, acute tests
 conducted in the same laboratory and
 dilution water, but in a different study, may
 ba used. If no such acute tests are available,
 results of acute tests conducted in the same
 dilution water in a different laboratory may
 be us«d. If no such acute tests are available,
 an acute-chronic ratio shall not be calculated.
   J, For each species, calculate the Species
 Mean Acute-Chronic Ratio as the geometric
 mean of all acute-chronic ratios available for
 that species. Preference should be given to
 freshwater (versus saltwater) species acute-
 chronic ratios  when calculating a Final
 Acute-Chronic Ratio. If the minimum acute-
 chronic ratio data requirements (as described
 in section HI.B.2 of this appendix) are not
 mot with freshwater data alone, saltwater
 data may be used.
   K. For some materials, the acute-chronic
 ratio seems to be the same for all species, but
 for other materials the ratio seems to increase
 or decreaso as  the Species Mean Acute Value
 (SMAV) increases. Thus the Final Acute-
 Chronic Ratio can bo obtained in four ways,
 depending on the data available:
  1. If the species mean acute-chronic ratio
 seems to increase or decrease as the SMAVs
 increase, the Final Acute-Chronic Ratio shall
 bo calculated as the geometric mean of the
 acute-chronic ratios for species whose
 SMAVs aro dose to the Final Acute Value.
  2. If no major trend is apparent and the
 acute-chronic ratios for all species are within
 • factor often, the Final Acute-Chronic Ratio
 shall be calculated as the geometric mean of
 all of the Species Mean Acute-Chronic Ratios
 for both freshwater and saltwater species.
  3. For acute tests conducted on metals and
possibly other substances with embryos and
 larvae of barnacles, bivalve molluscs, sea
urchins, lobsters, crabs, shrimp,  and abalones
 (sea section IV.E.2 of this appendix), it is
probably appropriate to assume that the acute
 to chronic ratio is two. Chronic tests are very
 difficult to conduct with most such species,
but it is likely that the sensitivities of
embryos and larvae would determine the
results of life cycle tests. Thus, if the lowest
available SMAVs are determined with
embryos and larvae of such species, the Final
Chronic Value Is equal to the Criterion
Maximum Concentration (see section VI of
 this appendix).
  4. If the most appropriate species mean
acute-chronic ratios are less than 2.0, and
especially If they are less than 1.0,
acclimation has probably occurred during the
chronic test In this situation, because
continuous exposure and acclimation cannot
                         be assured to provide adequate protection in
                         field situations, the Final Acute-Chronic
                         Ratio should be assumed to be two, so that
                         the Final Chronic Value is equal to the
                         Criterion Maximum Concentration. (See
                         section X.B of this appendix)
                           If the available species mean acute-chronic
                         ratios do not fit one of these cases, a Final
                         Acute-Chronic Ratio probably cannot be
                         obtained and a Final Chronic Value probably
                         cannot be calculated for Tier I.
                           Preference shall be given to freshwater
                         (versus saltwater) species acute-chronic
                         ratios when calculating Final Acute-Chronic
                         Ratio. If the minimum acute-chronic ratio
                         data requirements (as described in section
                         ilI.B.2 of this appendix) are not met with
                         freshwater data alone, saltwater data may be
                         used.                            -
                           L. Calculate the Final Chronic Value by
                         dividing the Final Acute Value by the Final'
                         Acute-Chronic Ratio. If there is a Final Acute,
                         Equation rather than a Final Acute Value, see
                         also section V of this appendix. .
                           M. If the Species Mean Chronic Value of
                         a commercially or recreationally important
                         species of the Great Lakes System is lower
                         than the calculated Final Chronic Value, then
                         that Species  Mean Chronic Value must be
                         used as the Final Chronic Value instead of
                         the calculated Final Chronic Value.
                           N. See section VHI of this appendix.
                         VII. Final Chronic Equation
                           A. A Final Chronic Equation can be
                         derived in two ways. The procedure
                         described here in section VII. A of this
                         appendix will result in the chronic slope
                         being the same as the acute slope. The
                         procedure described in sections VII.B
                         through N of this appendix will usually
                         result in the chronic slope being different
                         from the acute slope.
                           1. If acute-chronic ratios are available for
                         enough species at enough values of the water
                         quality characteristic to indicate that the
                         acute-chronic ratio is probably the same for
                         all species and is probably independent of
                         the water quality characteristic, calculate the
                         Final Acute-Chronic Ratio as the geometric
                         mean of the available Species Mean Acute-
                         Chronic Ratios.
                           2. Calculate the Final Chronic Value at the
                         selected value Z of the water quality
                         characteristic by dividing the Final Acute
                         Value at Z. (see section V.M of this appendix)
                         by the Final Acute-Chronic Ratio.

                         3. Use V=pooled acute slope (see section
                             V.M of this appendix)
                         as
                           L=pooled chronic slope.
                          4. See section VnM of this appendix.
                          B. When enough data are available to show
                         that chronic toxicity to at least one species
                         is related to a water quality characteristic, the
                         relationship should be taken into account as
                         described in  sections B through G below or,
                         using analysis of covariance. The two
                         methods are equivalent and produce
                         identical results. The manual method
                         described below provides an understanding
                         of this application of covariance analysis, but
                         computerized versions of covariance analysis
                         ere much more convenient for analyzing
                         large data sets. If two or more factors affect
 toxicity, multiple regression analysis shall be.
 used.   .
   C. For each species for which comparable
 chronic toxicity values are available at two or
 more different values of the water quality
 characteristic, perform a least squares
 regression of the chronic toxioity values on
 the corresponding values of the water quality
 characteristic to obtain the slope and its 95
 percent confidence limits for each species.
   Note:,Because the best documented
 relationship is that between hardness and
 acute toxicity of metals in fresh water and a
 log-log relationship fits these data, geometric
 means and natural logarithms of both toxicity
 and water quality are used in the rest of this
 section. For relationships based on other
 water quality characteristics, such as pH,
 temperature, or salinity, no transformation or
 a different transformation might fit the data
 better, and appropriate changes will be
 necessary throughout this section. It is
 probably preferable, but not necessary, to use
 the same transformation that was used with
 the acute values in section V of this
 appendix.
   •D. Decide whether the data for each species
 is useful, taking into account the range and
 number of the tested values of the water
 quality characteristic and the degree of
 agreement within and between species. For
 example, a slope based on six data points
 might be of limited value, if it is based only
 on data for a very narrow range of values of
 the water quality characteristic. A slope
 based on only two data points, however,
 might be more useful if it is consistent with
 other information and if the two points cover
 a broad range of the water quality
 characteristic. In addition, chronic values
 that appear to be questionable in comparison
 with other acute and chronic data available
 for the same species and for other species in
• the same genus "probably should not be used.
 For example, if after adjustment for the water
 quality characteristic, pthe chronic values
 available for a species or genus differ by more
 than a factor of 10, rejection of some or all
 of the values is probably appropriate. If a
 useful chronic slope is not available for at
Jeast one species or if the available slopes are
 too dissimilar or if too few data are available
 to adequately define the relationship between
 chronic toxicity and the water quality
 characteristic, it might be appropriate to
 assume that the chronic slope is the same as
 the acute slope, which is equivalent to •
 assuming that the acute-chronic ratio is
 independent of the water quality
 characteristic. Alternatively, return to section
 VI.H of this appendix, using the results of
 tests conducted under conditions and in
 waters similar to those commonly used for
 toxicity tests with the species.
   E. Individually for each species calculate
 the geometric mean of the available  chronic
 values and then divide each chronic value for
 a species by the mean for the species. This
 normalizes the chronic values so that the
 geometric mean of the normalized values for
 each species individually, and for any
 combination of species, is 1.0.
   F. Similarly, normalize the values of the
 water quality characteristic for each species
 individually.                 "       ,.
   G. Individually for each Species perform a
 least squares regression of the normalized

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                    Federal  Register / Vol. 58, No.  72 /  Friday,  April 16,  1993 / Proposed Rules
                                                                               21021
  chronic toxicity values on the corresponding
  normalized values of the water quality
  characteristic. The resulting slopes and the
  95 percent confidence limits will be identical
  to those obtained in section VTLB of this  '
  appendix Now, however, if the data are
  actually plotted, the line of best fit for each
  individual species will go through the point
  1,1 in the center of the. graph.
  •.. H, Treat all of the normalized data as if
  they were all the same species and perform
  a least squares regression of all of the
  normalized chronic values on the ..
  corresponding normalized values of the
  water quality characteristic to obtain tie
  pooled chronic slope, L, and its 95 percent
  confidence limits.                 •  •   , -   , .
   If all normalized data are actually plotted,
•  the line of best fit will go through the point
  1,1  in the center of the graph.
   I. For each species, calculate the geometric
  mean. M, of the toxicity. values and the
 geometric mean, P, of the values of the water
 _ quality characteristic. (These are calculated
 in sections Vn.E and F of this appendix.)
   J. For each species, calculate the logarithm,
 Q, of the Species Mean Chronic Value at a
 selected value, Z, of the water quality
 characteristic using the equation:

     'Q = lnM-L(lnP-lnZ)
   Note: Although it is not necessary, it is
 recommended that the same value, of the
 water quality characteristic be used -here as
 was used in section VI of this appendix. -
   K. For each species, calculate a Species
 Mean Chronic Value  at Z using the equatidn:
   Note: Alternatively, the Species. Mean  '•
 Chronic Value at Z can be obtained by
 skipping section VH.J of this appendix, using
 the equations in sections Vn.J and K of this
 appendix to adjust each chronic value
 individually to Z and then calculating the
 geometric means of the adjusted values for
 each species individually. This alternative
 procedure allows an examination of the range
 of the adjusted chronic values for .each
 species.       -              :    '
 ,  t. Qbtain.the Final Chronic Value at Z by
 using the procedure described in sections
 IV.J through Oof this appendix.'"-''.,.
   M. If the Species Mean Chronic Value at
 _Z of a commercially or recreationally        '
 important specie's of the Great Lakes System
 is lower than the calculated Final Chronic   :
 Value at Z, then that Species Mean Chronic
 Value shall be used as the Fmal Chronic
 Value at Z instead of the calculated Final
 Chronic Value.

 •  N. The Final Chronic Equation is   •''-
 written as:
                              Final Chronic Value = e(L[ln(water quality <*aracterisuc)j+ins-L[inZ])
 where:
   L=popled chronic slope and S=Final
:      Chronic Value at Z.
;  Because L, S, and Z are known, the Final
 Chronic Value can be calculated for any
 selected value of the water quality     '-'  •  '
 characteristic.
 Vin. Final Plant Value
   A, Appropriate measures.of the toxicity of
 the material to aquatic plants are used to
. Compare the relative.sensitivities of aquatic
 plants and animals. Although procedures for
 conducting and interpreting the results of
 toxicity tests with plants are not well-
 developed, results of tests with plants
 usually indicate that criteria which
 adequately protect aquatic animals and their
 uses will probably also protect aquatic plants
 and their uses.
   B. A plant value'is the result of a 96-hour
 test .conducted with an alga or a chronic test
 conducted with an aquatic vascular plant.
   Note: A test of the toxicity of a metal to a '
 plant shall not be used if the medium
 contained an excessive amount of a •
 complexing agent, such as EDTA, that might
 affect the toxicity of the metal.  '      '.,•'.
' Concentrations'of EDTA above 200 ug/L
 should probably be considered excessive.
   C. The Final Plant Value shall be obtained
 by selecting the lowest result from a test with
 an important aquatic plant species in which
 the concentrations of test material are
 measured and the endpoint is biologically
 important.            .-•  ':
 DC. Other Data        ;    '       •
   Pertinent information that could not be
 used in earlier sections might be available
 concerning adverse effects on aquatic
 organisms and their uses. The most
 'important of these are data on cumulative  ,
 and,delayed toxicity, reduction in survival,
 growth, or reproduction, or any other adverse
 effect that has been shown to be biologically"
 important. Especially important are data for.
 species for which ho o.ther data are available
 Data from behavioral, biochemical,
 physiological, microcosm, and field studies
 might also be available. Data might be
 available from tests conducted in unusual
 dilution water (see sections IV.D and VLD of
 this appendix), from chronic tests in which
 the concentrations were not measured (see
 section VLB of this appendix), from tests
 with previously exposed organisms (see
 section H.F'of this appendix), and from tests
 on formulated mixtures or emulsifiable
' concentrates (see section H.D of this
 appendix). Such data might affect a criterion
 if the data were obtained with an important
 species, the test concentrations were
 measured, and the endpoint was biologically
 important.
 X. Criterion
   A. A criterion consists of two
 concentrations: the Criterion Maximum
 Concentration and the Criterion Continuous
.Concentration.
   B. The Criterion Maximum Concentration
 (CMC)  is equal to one-half the Fina} Acute
„ Value.   ,.
   C. The Criterion Continuous Concentration
 (CCC) is equal to the lowest of the Final.
 Chronic Value or the Final Plant Value (if
 available) unless other data (see section IX of
 this appendix) show that a lower value
 should be used. If toxicity is related to a
 water quality characteristic, the CCC is
 obtained from the Final Chronic Equation or
.Final Plant Value (if available) that results in
 the lowest concentrations in the Usual range
 of the water quality characteristic, unless ,
 other data (see section DC) show that a lower
 value should be used.
   D. Round.hpth the CMC and the CCC to  ,
 two significant digits.         "       •
   E. The criterion is stated as:
   The procedures described in the Tier I
 methodology indicate that, except possibly
 where a locally important species is very
 sensitive, aquatic organisms and their uses
 should not be affected unacceptably if the
 four-day average concentration of (1) does,
 not exceed (2) ug/L more than once every
. three years on the average and if the one-hour
 average concentration" does.not exceed (3) jig/
 •L more than once every three years on .the
 average.
   where:
 (1) = insert name of material
 (2) = insert the Criterion Continuous
   Concentration   '-'..'•-
 (3) = insert the Criterion Maximum
   Concentration
 XI. Final Review       '..".'..-.          ,
   A- The derivation of the criterion should be
 carefully reviewed by rechecking each step of
 the Guidance. Items that should be especially
 checked are:        ;
   1. If unpublished data are used, are they
 well documented?
   2. Are all required data available?
   3. Is the range of acute values-for any
 species greater than a factor of 10?
   4. Is the range of Species Mean Acute
 Values for any genus greater than a factor of
 10?     '
   5. Is there more than a factor of 10
. difference between the four lowest Genus
 Mean Acute Values?
   6. Are any of the lowest Genus Mean Acute
 Values questionable?
   7. Is the Final Acute Value reasonable in:
 comparison with the Species Mean Acute
 Values and Genus Mean AcuteValues?    ;
  r 8. For any commercially or recreationally
 important species'of the Great Lakes System,
 is the geometric mean of the acute values  •
 from flow-through tests in which the
 concentrations of test material were    '
 measured lower than the Final Acute Value?
   9. Are any of the chronic values'
 questionable?                '   .    :'"..'
   10." Are any chronic values available for
 acutely sensitive species?
   11. Is the range of acute-chronic ratios
 greater than a factor of 10?       _
   12. Is the Final Chronic Value reasonable   •
 in comparison with the available acute-and i
 chronic data?.       .       <•.      ,   • .-•
   13. Is the measured or predicted chronic ,
 value for any commercially or recreationally,

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 21022          Federal Register. /  Vol. 58, No. 72 / Friday, April 16, 1993  /  Proposed Rules
 Important species of the Great Lakes System
 below the Final Chronic Value?
'  14. Are any of the oilier data important?
   15, Do any data look like they might be
 outliers?
   18, A» thora any deviations from the
 Guidance? Am they acceptable?
   B. On the basis of all available pertinent
 laboratory and field information, determine if
 tho criterion Is consistent with sound
 tctentific evidence. If it is not, another
 criterion, cither higher or lower, shall be
 derived u*!ng appropriate modifications of
 this Guidance,

 Methodology foe Deriving Aquatic life
 Values; Ti»M
 XII. Secondary Acute Value
   If all eight minimum data requi
 calculating an FAV using Tier I ai
Iuiraments for
are not met,
a Secondary Acute Value (SAV) for the
waters of the Great Lakes basin shall be
calculated for a chemical as follows:
  To calculate a SAV, the iowast GMAV in
the database Is divided by the Secondary
Acute Factor (SAP] (Table A-l of this
appendix) corresponding to the number of
satisfied minimum data requirements listed
in the Tier I methodology (section III.B.1 of
this appendix). If all eight minimum data
requirements are satisfied, a Tier I criterion .
calculation may be possible. In order to
calculate a SAV, the database must contain,
at a minimum^ a genus mean acute value
(GMAV) for one of the following three genera
in the family Daphnidae—Cenodaphtua sp*
Daphnia sp., 6r Simocephalus sp.
  If appropriate, the SAV wdll be made a
function of a water quality characteristic in
a manner similar to that described in Tier I
XIIL Secondary Acute-Chronic Ratio
  If three or more experimentally determined
acute-chronic ratios ,(AC3?sJ, which are
acceptable based on Tier I, are available for
the chemical, determine the Final Acute-
Chronic Ratio PACK) using the procedure
described in Tier I. If fewer Jhan ithree
acceptable experimentally determined ACRs
are available, use enough assumad ACRs of
18 so that fee total -number of AGRs equals
three. Calculate the Secondary Acute-Chronic
Ratio (SACR) as &e geometric mean of the
three ACRs. Thus, if no experimentally
determined acute-chronic ratios are available.,
the SACR is 18.

XTV, Secondary Chronic Value
  Calculate the Secondary Chronic Vafee
(SCV) using one -of the following:
   A.
   B,
           scy=
           scv=
                                               '  FAV
                   (use FAV from Tier I)
                                       scv=
                                                SACR
   If appropriate, the SCV will be made a
 function of a water quality characteristic in
 a manner similar to that described in Tier I.
 XV, Commercially or Rocreationally
 Important Species
   If for a commercially or rocreationally
 important spades of the Great Lakes System
 ttiB geometric moan of the acute values from
 flow-through tests in which the
 concentrations of the test materials were
 measured Is lower than the calculated SAV,
 thon that geometric mean must be used as the
 SAV instead of the calculated SAV.
   If fora commercially orrecreationally
 Important species of the Great Lakes System
 tho geometric moan of the chronic values
 from flow-through tests in which the
 concentrations, of the test materials were
 measured is lower than the calculated SCV,
 thon that goometric mean must be used as the
 SCV Instead of the calculated SCV.
 XVLTlwO Value
   A, Secondary Value shall consist of -two
 concentrations: the Secondary Maximum
 ConoKitiatloa (SMC) and the Secondary
 Continuous Concentration (SCO).
   B. TJw SMC it equal to one-half of the
 SAV.
   C. Tho SCC If equal to the lowest of the
 SCV oc tfao Final Want Vmlue, if available,
 unless other data (See section DC of this
 appendix} show that a lower value should be
 usci
   If toxicity is related to a water quality
 characteristic, tha SCC is obtained from the
 Secondary Chronic Equation or Final Plant
 Valus, if available, that results in the lowest
 concentrations in tha usual range of the water
 quality characteristic, unless other data (See
 section IX of this appendix) chow that a
 lower valuo should be used.
                D. Round both the SMC and the SCC to *wo
               significant digits.
                E. The value is Stated as:
                The procedures described in the Tier H
               methodology indicate that, except possibly
               where a locally important species is very
               sensitive, aquatic organisms should not be
               affected unacceptably if the four-day average
               concentration of (1) does not exceed (2) ,ug/
               L more than once every three years on the
               average and if the one-hour average
               concentration does not exceed (3) ng/L more
               than once every mree years on the average..
               Where:
               (l)=insert name of material
               (2)=insertthe Secondary Continuous
                Concentration
               (3)=insert the Secondary Maximum
                Concentration

               XVII. Appropriate Modifications

                On the basis of all available pertinent
               laboratory and field information, determine if
               the value is consistent with sound .scientific
               evidence. If it is not, another value, either
               higher or lower, must be derived using
               appropriate modifications of these
               procedures.
               XVHL Availablity of Information

                The most recent secondary values shall be
               compiled on an annual basis by EPA Region
               V Water Division and be available for
               distribution to the public.
                                          Tables to Appendix A to Part 132

                                              TABJ.E A-l.—SECONDARY ACUTE
                                                         FACTORS
Number of satisfied minimum :
data requirements ,
1
2
3
4.
5
6,
7
0


	 ...„.„.„-.„.„ 	 1
	 ;. — ...„ 	 ,.. 	 ...,,
•AF
20
13
8.6
6,5
5,0
4.0
3.6
                                          Appendix B to Part 132—Great Lakes
                                          Water Quality Initiative Methodology
                                          for Development of Bioaccumulation
                                          Factors

                                         • /. Introduction       ,
                                            The purpose iof this methodology is to
                                          determine bioaccumulaHon factors to be used
                                          in the calculation of Great Lakes Water
                                          Quality Guidance (GLWGH3) human health
                                          and wildlife Tier.I criteria and Tier II values.
                                          The BAFs for human health criteria and
                                          values will also be used to identify the
                                          Bioaccumulative Chemicals of Concern
                                          (BCCs) to be considered under the Great
                                          Lakes Initiative (GLIJ programs.
                                            Bioaccumulation reflects uptake of a
                                          substance by aquatic organisms exposed to
                                          the substance through all routes, as would
                                          occur in nature. Bioconcentration reflects
                                          uptake of a substance by aquatic organisms
                                          exposed to the substance only from the
                                          surrounding water medium. Both
                                          bloaccumulatlon factors ;(BAFs) and
                                          bioconcentration factors {BCFsj are

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                    Federal Register"/  Vol."-"5 8," Wo. ",72  7 FrMy,  April  16, 1993  /Proposed Rules
                                                                             21023
   proportionality constants, relating the
 - concentration of a substance in aquatic
   organisms to its concentration in the   . -
   surrourfding water. BAFs, rather than BCFs.
   will be used to calculate Tier I criteria and
   Tier n values'because BAFs represent the
   bioaccumulation that occurs in natural
   aquatic systems. Measured BAEs will be used
   when possible; otherwise, predicted BAFs
   will be calculated, by multiplying a measured
   or predicted BCF by a food chain multiplier
   (FCM).      .      .    • •   , '

 •  II, Definitions     , •
    Bioaccumulation. The uptake and
   retention of a substance by an aquatic     ,
   organism from its surrounding medium and'
   food.
    Bioaccum ulationfactor (BAF). The ratio
 •  (in I/kg) of a substance's concentration in
 .  tissue to its concentration in the surrounding
   water in situations where both the organism
   and its food are  exposed and the ratio does
   not change substantially oyer time.
    Bioconcentration. The uptake and  •
   retention of a substance by an aquatic
   organism from the surrounding water only,
   through gill membranes or other external
   body surfaces.                        •
    Depuration. The loss of a substance from
   an aquatic organism.
    Food Chain Multiplier (FCM). A factor by
   which a BCF is multiplied to obtain a BAF;
   or, the ratio of the BAF to the BCF.
    Octahol-vyater partition coefficient KM}. .
   The ratio of the concentration of a substance
   in the octanol phase to its concentration in
   the aqueous phase in an equilibrate4 two-
   phase octahol-water system.
    Steady-State Bioconcentration Factor
   (BCF). The ratio (L/kg) of a substance's
   concentration in tissue to its concentration in
   the surrounding water, in situations where
   the organism is exposed through the water
   only, and the ratio does not change
   substantially over time; that is, a steady-state'
   BCF  exists when uptake and depuration are
   equal. In this methodology whenever (he
   term BCF is used, steady state is implied.
    "Uptake. The sorptionof a substance into or .
   onto an aquatic organism.      '   .   . -

  in. Overview of Procedure,             -
    Bioaccumulation factors are, derived in the
 "  three ways listed below from most preferred •
   to least preferred:           '   '  _
    A. A measured BAF based on a field study;
   especially if the  field study was'conducted
   on the Great Lakes with fish at or near the -
  top of the.aquatic food chain.
    B. A predicted BAF that is the product of
  a measured BCF from a laboratory study and
  a food chain multiplier (FCM).    -
    C. A predicted BAF for organic chemicals
  which is the product of a BCF estimated from
  a log Km, and a FCM, where log means
  logarithm to the  base 10.
    . BAFs for a chemical should be calculated
   by as many of the three methods as available
  data allow for comparative purposes. .The
 ' BAF  selected is based on the stated
  preferences unless there is a valid reason for
. selecting an alternative BAF. Formost .
  inorganic chemicals, and many organic
."Chemicals, the FCM will be 1.0; that is,
 , bioaccumulation and bioconcentration are  '
 equal. The lipid content of the test fish will
 be used to normalize BAFs and BCFs for
 organic chemicals so that data from different
 tissues and fish species can be integrated. •
   Fish are the dominant aquatic species
 consumed by humans in the Great Lakes
 basin. Thus, BAFs for human health Tier I
 criteria and Tier n values will be based on
 fish. Because Great Lakes basin wildlife
 include many  piscivorous species, BAFs for
 wildlife criteria and values will generally be
 based on fish data as well. Oh a case-specific
 basis, wildlife BAFs may be weighted to
 reflect the proportion of plants, invertebrates,
 and fish in the diet of the species to be
 protected.

 IV. Review and Selection of Data
   A. Data Sources. Measured BAFs.and BCFs
 are assembled  from available sources
 including the following:
   1. EPA Ambient Water Quality Criteria
 documents issued after January 1,1980.
   2. AQUIRE database.
   3. Published scientific literature.
   4. Reports issued by EPA or other reliable
 sources.
   5. Unpublished data.         ,
   B. Data Review.and Selection. Measured
 BCFs and, if applicable, measured BAFs
 should meet the procedural and quality
 assurance requirements specified in the
 ASTM (1990) "Standard Practice for
 Conducting Bioconcentration Tests with
 Fishes and Saltwater Bivalve Molluscs", and
 in the U.S. EPA guidance contained in
 Stephen et al. (1985) "Guidelines for
 Deriving Numerical National Water Quality
 Criteria for the Protection of Aquatic
 Organisms and Their Uses". In particular, the
 following should be met:.
   1. The bioconcentration factor is steady-
 state,  or steady-state BCF can be estimated.
   2. The concentration of the substance did
 not have an adverse effect on the test
 organisms.  ,
   3. The concentration of the substance in
 the water was measured and was relatively
 constant during the steady-state time period."
The concentration should be averaged over
the period during which steady-state
 conditions were achieved. All average (mean)
values are geometric means unless specified
otherwise.                .
   4. For measured BCFs, the organisms were
exposed to the  substance using a flow-
through or renewal procedure.
   5. For organic chemicals, the percent lipid
was measured in, or can be reliably
determined for, the test organisms.
  This methodology provides overall
guidance for the derivation of BAFs, but it
cannot cover all the decisions that must be
made  in the review and selection of
acceptable data. Professional judgment is
required throughout the process. A degree of
uncertainty is associated with the
determination of any BAF or BCF. The •..
amount of uncertainty involved hi deriving a
BAF depends on both the quality of data
available and the method used to derive the
BAF..              :,•.•-...••   .
  Field-measured BAFs should be based on
fish species, preferably living in the Great _..
Lakes at or near the top of the aquatic food
chain (trophic level 3 or 4). This is    •
  particularly true for organic chemicals with
  log Row values greater than four. The
 'conditions of the field study should not be
  so unique that the BAF is not applicable to
  other locations where the criteria and values
  willapply.
    Laboratory-measured BCFs also should be
  based on fish species, but BCFs for molluscs
  and other invertebrates maybe used with
  caution. For example, because invertebrates
  metabolize some chemicals less efficiently"-
  than vertebrates, the BCF obtained with
  invertebrates for such chemicals will be
  higher than the BCF obtained with fish on a
  lipid basis.
    The percent lipid content of the test
  organisms and the analytical method used to
  measure lipids should be reported as part of
  a BAF or BCF study on organic chemicals.
  An average lipid value representative of
  tissue in the test organisms should be used.
  If percent lipid is hot reported for the test .
  organisms in the original studyr it may be
  obtained from the author; or, in the case of
  a laboratory study, lipid data for the same
  laboratory population of test organisms that
  were us,ed in the original study may be used.  •
   If measured BCFs for a substance vary with
  the test concentration of the substance in a
  laboratory test, the BCF measured at the
  lowest test concentration that is above
  concentrations that exist in the control water
  should be used; i.e.y do not use the BCF from
  a control treatment
   BAFs and BCFs should be used only if they
  are expressed on a wet weight basis. BAFs  ,
"'. and BCFs reported on a dry weight basis
  should be converted to wet weight only if a
  conversion factor was determined for the test
 ' organisms or comparable organisms from the
  same study.          •
   Hereinafter in this methodology, the terms
'. BAF and BCF refer to those BAFs and BCFs'
 that are consistent with the above provisions
  for data review and selection.   .    ,

  V. Determination of BAFs for Inorganic
  Chemicals
   BAFs are assumed to be equal to BCFs for
 most inorganic substances. However,  a food
 chain multiplier may be applicable to some
 metals, for example, if an organometallic
 form of the metal biomagnifies.
   Concentrations of an inorganic substance
 in a BAF or BCF study should be greater than
 nonrtal background levels and greater than
 levels required for normal nutrition of the
 test species if the substance is a
 micronutrient, while still below levels which
 adversely affect the species. Bioaccumulation
 of inorganic substances may be  . •
 inappropriately overestimated if
 concentrations are at or below normal   •
 background levels due to, for example,
 nutritional requirements of the test
 organisms.   ..;.-   ',     .
 A. BAF for Human Health Criteria and
 Values,   /  -' ,      • "
   1. BAFs and BCFs used to determine
 human health BAFs should be based on
 edible tissue (e.g., muscle) of freshwater fish'
 unless it can be demonstrated that whole
 body BAFs or BCFs are similar to edible
 tissue BAFs or BCFs. BCFs for non-fish ,
 species and non-edible tissues offish are ,  '
 generally higher than for muscle of fish.

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 21024
Federal Register  /  VoL 58, No. 72 / Friday, April 16, 1993  /  Pjsopo&ed
 Thesa other BCFs and BAFs should only be
 used to set upper limits on the BCF or BAF
 for odibls tissues. Plant BCFs and BAFs
 should not boused for human health criteria
 and values.,
  2.If ono or more measured BAFs are
 available for am Inorganic chemical the
 geomeMc mean of those BAFs will be used.
  3, A predicted BAF used to derive human
 health criteria and values equals an odibla-
 porfton BCF times a food chain multiplier. If
 tr.ora Una one edible-partksa BCF is
 available, the geometric mean of those values
 wIU bo used. The food chain multiplier will
 bo 1.0 unless chemical specific
 Momtgnlfiottioa data support using a
 multiplier other thaa 1.0.
 B. BAF for Wildlife Criteria and Values
  1. BAFs «ad BCFs used to determine
 wildlife criteria and values should be based
 on wholo-body fish data unless it can be
 demonstrated that, BAFs or BCFs for edible
 Uf tut, arc similar to whole body BAFs or
 BCFs. BCFs Kid BAFs for non-fish species
 a:sd aoBHXliblft tissues of fish are generally
 higher OUB for muscle of fish. The BCFs and
 BAFs for non-fish species and non-edible
 t braes of fish should only be used to sot
 lower limits oa the desired BCF or BAF for
 whole body.
  2. if ono armors measured BAFs are
 tvxiUbk, the goomfttricmean of those BAFs
 will be used.
  3. A pwdicted BAF used to derive wildlife
 criteria tad values equals a whole-body BCF
 times a food chain multiplier. If more than
 oca whole-body BCF Is available, the
 gtonsetric meaa will be uisd. The food chain
 multiplier will bo 1.0 unless chemical
 specific biotnagnification data support using
 a multiplier other than 1.0.
  4, BAFs or BCFs, used to determine
 wildlife criteria and values, for whole-body
 fish, Invertebrates and aquatic plants may ba
 considered oa a cass-by-case basis. If used.
 they should be used in proportion to the
 percent-by- weight of invertebrate or plant
 material consumed by the wildlife species to
 be protected.

 ViT. Detent/notion of BAFs for Organic
 Cltemicals
 A, LipSd Nonntlizttloa
  For lipophillc organic chemicals, BAFs and
 BCFs are at fumed to be directly proportional
 to the percent lipid from ono tissue to
 another aad frota one aquatic species to
 another, Percent lipid data are used to
 convert reported BAFs and BCFs to BAFs and
 BCFs appropriate for tha fisheries of the
 Groat Lakes basin, Percent lipid data are also
 used to determine human health and wildlife
 BAFs from the simo data.
  The percent lipid of the test organism
 (whole body credible tissue) should be
 obtained from the BAF or BCF study. BAFs
 and BCFs are normalized to one percent lipid
 by dividing the BAFs or BCFs by the mean
 percent lipid. Both whole body and edible
 tissue BAFs and BCFs are normalized using
 lha respective whole body and edible tissue
 percent lipid values. Unless comparability
 can ba determined, the percent lipid should
be determined on the test organisms.
                        B. Food -Cham Multiplier
                          In the absence of measured BAFs for
                        organic chemicals, a food chain multiplier
                        (FCM) is -used to predict the BAF. 'The
                        appropriate FCM is selected from Table 1
                        based on the chemical's log KOW. A FCM
                        greater than 1.0 is applicable to most
                        lipophHic organic chemicals with log KOW
                        values of four or more. For human health
                        BAFs, a FCM from Table 1 for trophic level
                        4 (top predator fish) is used. For wildlife
                        BAFs, FCMs for trophic levels 3 (small fish)
                        and 4 are used depending on the model bird
                        or mammal being considered. For
                        superlipophilic chemicals, i.e., log Kow
                        greater than 6.5, chemical-specific
                        information should be used to determine the
                        appropriate FCM to use because the FCM
                        may range from 0.1 and 100. In the absence
                        of chemical-specific information, a FGM of
                        one should be used.
                        C. Predicted BCFs Based on Qclanol-Water
                        Partition Coefficient
                          In the absence of acceptable measured
                        B AFs-and/or BCFs for lipophilic organic
                        chemicals, a BAF is calculated using the
                        relationship between the BCF and the log of
                        the octanol-water partition coefficient. BCFs
                        based on log Kow values will be multiplied
                        by tie appropriate FCM to reflect
   a. Human Health BAE=»(mean normalized
 BCF) (5.0) {FCMJ
   b. Wildlife BAF=et
 al. (1985) "Guidelines for Deriving Numerical
 National Water Quality Criteria for the
 Protection of Aquatic Organisms andThefc
 Uses." NTIS # PB85-227049. U.S.
 Department of Commerce, 5285 Port Royal
 Road, Springfield, VA 22161.
   ASTM. 1990, Standard Practice  for
 Conducting Bioeoncentration Tests with •
 Fishes and .Saltwater Bivalve Molluscs.
_ Designation E 1022—84. Pages 606-62 2. ife
 Annual Book of ASTM Standards. Section
 11, Water and Environmental Xechnologyj
 Volume 11.04. American Society for Testing
 and Materials, t'916 Race 'Street, Phila. PA
 19103.
   Thomann, R.V, 1989. Bioaccumulation
 Model of Organic Chemical Distribution In
 Aquatic Food Chains, .Environ. Sci. Teehnol.
 23: 699-707.
   UJS. Environmental Protection Agency.  .
 1991. Assessment and Ceotroi af            '
 Bioconcentratable 'Contaminants in Surface
 Waters, Draft 0.S. EPA, Office of Water.,
 Permits Division, EN-336, 401 MSbreet,
 Washington DC 20480.      ,
   Veith, G.D. and P. Kosian. 1983. Estimating
 Bioconcentration Potential from Octanol/
 Water Partition Coefficients, Chapter 15 in '
 PCBs in the Craat Lakes. Mackay, D.,. R.
 Patterson, S. Eisenreich, , and M. Simmons    ,
 (eds.) Ann Arbor Science, Publishers, Ana    j
 Arbor, Michigan.       ,                 1

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                   Federal Register / Vol. 58, No.  72 /  Friday,  April  16, 1993  / Proposed Rules
                                                                             2102a
 Tables to Appendix B of Part 132

    TABLE B-1.—AQUATIC FOOD CHAIN
               MULTIPLIERS
LogKcw
:£3.9
4.0
4.1
4.2
4.3
•4.4
4.5
4.6
4.7
4.8
4.9
. 5.0
5.1
5.2
'. 5.3
,5.4
5.5
5.6
5.7
5.8
5.9
6.0
6.1
, 6.2
6.3
6.4
6.5
>6.5
Trophic Level"
2
1.0
1.1
1.1
1.1
1.1
• "1.2"
1.2
1.2
1.3
1.4
1.5
1.6
1.7
1.9
2.2
2.4
2.8
3.3
3.9
4.6
5.6
6.8
8.2
10
13
15
19
(")
3
1.0
1.0
1.1
1.1
1.1
1.1
1.2
1.3
1.4
1.5
1.8
2.1
2.5
3.0
3.7
4.6
5.9
7.5
9.8
13
17
21
25
29
34
39
45
(b)
4
1.0
1.0
1.1
1.1
1.1
1.1
1.2
1.3
1.4
1.6
2.0
2.6
3.2
4.3
5.8
8.0
11
16
23
33
47
67
75
84
92
98
100
(")
   "Trophic level: 2 Is zooplankton, 3 Is small
 fish,  4  is  piscivorous  fish  including  top
 predators.
 .  b For chemicals with log Kow values greater
.than 6.5 the  FCM can range from 0.1 to 100.
 Such   chemicals   should   be   evaluated
 individually to determine the appropriate FCM.
 In  the   absence   of   chemical-specific
 information, a FCM of 1.0 should be used.

 Appendix C to Part 132—Great Lakes
 Water Quality Initiative Methodology
 for Development of Human Health
 Criteria and Values

 J. Introduction
 A. Goal
   The goal of the human, health criteria for
 the Great Lakes System is the protection of
 humans from unacceptable exposure to
 toxicants via consumption of contaminated
 fish and drinking water and from ingesting
 water as a result of participation hi water-
 oriented recreational activities.
 B. Levelof Protection
   The criteria developed shall provide a level
 of protection likely to be without appreciable
 risk of carcinogenic and/or non-carcinogenic
 effects. Criteria are a function of the level of
 .design risk or no adverse effect estimation,
 selection of data and exposure assumptions.
 Ambient criteria for single carcinogens shall
 not be set at a level representing a lifetime
 incremental risk greater than one in 100,000
 of developing cancer using the hazard
 assessment techniques and exposure
 assumptions described'herein. Criteria
 affording protection from noncarcinogenic
 effects shall be established at levels that,
 taking into account uncertainties, are
 considered likely to be without an
 appreciable risk of adverse human health
 effects (i.e., acute, subchronic and chronic
 toxicity including reproductive and
 developmental effects) during a lifetime of
 exposure, using the risk assessment
 techniques and exposure assumptions
 described herein.
 C. Two-tiered Classification
  Chemical concentration levels in surface
 water protective of human health shall be
 derived based on either a Tier I or Tier n
 classification. The two Tiers are primarily  '.
.distinguished by the amount of toxicity data
 available for deriving the concentration
 levels.

 n. Minimum Data Requirements
  The best available toxicity data on the
 adverse health effects of a chemical shall be
 used when developing Tier Icriteria or Tier
 H values. The best available toxicity data
 shall .include data from well conducted
 epidemiolpgic and/or animal studies which
 provide (in the case of carcinogens) an
 adequate weight of evidence of potential.
 human carcinogsnicity and, in the case of
 non-carcinogens, a dose response
 relationship involving critical effects
 biologically relevant to humans. Such
 information should be obtained from the EPA
 Integrated Risk Information System (IRIS)
 database, the  scientific literature, and other
 informational databases, studies and/or
 reports containing adverse health effects data'
 of adequate quality for use in this procedure.
 Strong consideration shall be given to the
 most currently available guidance provided
 by IRIS ia deriving criteria or values,
 supplemented with any recent-data not
 incorporated into IRIS.           ;
 A. Carcinogens
  Tier I criteria and Tier n values will be
 derived pursuant to section III. A of this
 appendix when there is adequate evidence of
 potential Tinman carcinogenic effects for a
 chemical.' It is strongly recommended that
 the EPA classification system for chemical
 carcinogens,-which is described in the 1986
 EPA Guidelines for Carcinogenic Risk
 Assessment (U.S. EPA. 1986), or future
 modifications thereto, be used in determining
 whether adequate evidence of potential
 carcinogenic effects exists.
  1.  Tier I: Weight of evidence of potential
 human carcinogenic effects sufficient to     :
 derive a Tier I human cancer criterion shall
 generally include human carcinogens, and
 probable human carcinogens. Chemicals are
 described as human carcinogens when there
 is sufficient evidence from epidemiologieal
 studies to support a causal association
 between exposure to the agents and cancer.
 Chemicals described as probable human
 carcinogens include agents for which the
 weight of evidence of human carcinogenicity
 based on epidemiological studies is limited.
 Probable human carcinogens are'also agents
 for which there is sufficient evidence from
 animal studies and for which there is     -
 inadequate evidence or no data from
 epidemiologic studies. Possible human
 carcinogens, may be suitable for Tier I
 criterion development Vrhere studies have
 been well-conducted albeit are limited, when
 • compared to studies Used in classifying
 human and probable human carcinogens,
 because they involve only a single species,
 strain or experiment which does not
 demonstrate a high incidence, unusual site or
 type of tumor, or early onset. Possible human
 carcinogens are agents with limited evidence
 of carcinogenicity in animals in the absence
 of human data. Limited evidence includes a
 wide variety of evidence, e.g., (a) a malignant
 tumor response ha a single well-conducted
 experiment that does not meet conditions for
 sufficient evidence, (b) tumor response of
 marginal statistical significance in studies
 having inadequate design Or reporting, (c)
 benign but not malignant tumors with an
 agent showing no, response in a variety,of
 short-term tests for mutagenicity, and (d)
 response of marginal statistical significance
 hi a tissue known to have a high or variable
' background rate.
   a. The weight of evidence for
 carcinogenicity from studies in humans is
 classified as:
   i. Sufficient when the evidence indicates
 that there is a causal relationship between
 the agent and human cancer.
   ii. Limited when the evidence  indicates
 that a causal interpretation is credible, but
 that alternative explanations, such as chance,
 bias, or confounding, could not adequately be
 excluded.
   iii. Inadequate when the evidence indicates
 that one of two conditions prevailed:
   (a) There were few pertinent data, or
   (b) The available studies, while showing
 evidence of association, did not exclude
 chance, bias, or confounding and therefore a
 causal interpretation is not credible.
   b. The weight of evidence for
 carcinogenicity from studies in experimental
 animals is classified as:
   i. Sufficient when the evidence indicates
 that there is an increased incidence of
 malignant tumors or combined malignant
 and benign tumors:
   (a) In multiple species or strains;   '".'•-
   (b) In multiple experiments (e.g., with
 different'routes of administration orusing
 different dose levels); or      •
   (c) To an unusual degree in a single
 experiment with regard to high incidence,
 unusual site of type of tumor, or  early age at
 onset.
 Additional evidence maybe provided by data
 : on dose-re'sponse effects, as well as
 information from short-term tests or on  .
 chemical structure.
   ii. Limited when the data suggest a
 carcinogenic effect but are limited because:
   (a) The studies involve a single species,
 strain, or experiment and do not meet criteria
 for sufficient evidence (see preceding
 paragraph); or                          '--
   (b) The experiments are restricted by
 inadequate dosage levels, inadequate
 duration of exposure to the agent, inadequate
 period of follow-up, poor survival, too few
 animals, or inadequate reporting; or
   (c) The studies indicate an increase in the
 incidence of benign tumors only.
   iii. Inadequate when; because of major
 qualitative or quantitative limitations, the
 evidence cannot be interpreted as showing
 either the presence or absence of a
 carcinogenic effect.         •

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Federal Register / Vol. 58,  No.  72  /Friday,  April  16, 1993  / Proposed Rules
  2, Tier 11: Welght-of-ovidencB of possible
human carcinogenic effects sufficient to
derive a Tier H human cancer value shall
include thosa possibla human carcinogens,
with da'.a sufficient for quantitative risk
assessment, however inadequate for Tier I
criterion development due to a tumor
response of marginal statistical significance
or iBibility to derive a strong dose-response
relationship.
B. Noaeareinogens
  All available toxicity data shall he
evaluated considering the full range of
possible health effects of a chemical, i.e.,
acute/subtcute, chronic/subchronic and
reproductive/developmental effects, in order
to oest describe the dose-response
relationship of the chemical, and to calculate
human noncancor criteria and values data
•which will protect against the most sensitive
endpo!nt(s) of toxicity. Although it is
desirable to have an extensive database
which considers a wide range of possible
adversa effects, this type of data exists for a
very limited number of chemicals. For many
others, there is a range in quality and
quantity of data available. To assure
minimum reliability of criteria and values, it
Is necessary to establish a minimum database
below which development of criteria or
values cannot proceed. The following,
although not idoal, represent the minimum
data sets necessary for this procedure.
  1. Tfcf /; The minimum data sufficient to
derive a Tier I human criterion shall include
at least pne, well-conducted opidemiologic
study or animal study- A well-conducted
epldemlologic study for a Tier I human
noncsneef" criterion must quantify exposure
levol(s)  and demonstrate positive association
between exposure to a chemical and adverse
effects) in humans. A well-conducted study
in animals must demonstrate a dose response
relationship involving one or more critical
offect(s) biologically relevant to humans. (For
cxamplo, study results from an animal whose
phannacokinetics and toxicokinetics match
those of a human would be  considered most
biologically relevant.) Ideally, the duration of
a study should span multiple generations of
exposed test species or at least a major
portion of the lifespan of one generation.
This type of data is currently very limited. By.
tho uss  of uncertainty adjustments, shorter,
term studios (such as 90-day subchronic
studios) with evaluation of more limited
cffec'(s) may be used to extrapolate to longer
exposures or to account for a variety of
adverse offsets. For Tier I criteria developed
pursuant to this procedure, such a limited
study must be conducted for at least 90 days
Jn rodents or 10 percent of the lifespan of
other appropriate test species and
demonstrate a no observable adverse effect
level (NOAEL). Chronic studies of one year
or longer in rodents or 50 percent of the
lifespan or greater in other appropriate test
species that demonstrate a lowest observable
adverse effect level (LOAEL) may be
sufficient for use in Tier I criterion derivation
if tho effects observed at the LOAEL were
relatively mild and reversible as compared to
effects at higher doses. This does not
preclude tho use of a LOAEL from a study
with only one or two doses if the effects
observed appear minimal when compared to
                         effect levels observed at higher doses in other
                         studies.
                           2, r/erff: When sufficierit data are not     -
                         available to meet the Tiefl data
                         requirements, a more limited database may
                         be considered for Tier II values development.
                         As with Tier I, all available data shall be
                         considered and ideally should address a
                         range of adverse health effects with exposure -
                         over a substantial portion of the lifespan (or
                         multiple generations) of the test species.
                         When such data are lacking it may be
                         necessary to rely on less than ideal data in
                         order to establish a Tier II value. .With the use
                         of appropriate uncertainty factors to account
                         for such limited data, the minimum data
                         sufficient to derive a Tier n value shall
                         include a NOAEL from at least one well-
                         conducted short-term repeated dose study.
                         This study shall be of at least 28 days
                         duration, in animals demonstrating a dose-
                         response, and involving effects biologically
                         relevant to humans. Data from studies of
                         longer duration (greater than 28 days) and
                         LOAELs from such studies may be more
                         appropriate in some cases for derivation of
                         Tier II values." Use of a particular LOAEL
                         should be based on consideration of the
                         following information: severity of effect,
                         quality of the study and duration of the
                         study. An additional uncertainty factor may
                         be applied to a LOAEL or NOAEL in addition
                         to the standard uncertainty factors which
                         account for intra- and interspecies variability
                         (and for a lack of an identifiable NOAEL
                         when a LOAEL is used), in order to further
                         accommodate the extrapolation of short
                         study duration (28  days) to lifetime exposure
                         and to compensate for the lack of a complete
                         toxicological data base. Structure-activity
                         relationships (S AR) may be used along with
                         all other data available on a chemical to
                         determine the appropriate additional
                         uncertainty factor to be used with such
                         limited data.
                         Iff. Principles for Development of Tier I
                         Criteria or Tier II Values
                           The fundamental components of the
                         procedure to calculate Tier I criteria or Tier
                         II values are the same. However, certain of
                         the aspects of the procedure designed to
                         account for short-duration studies or other
                         limitations in data are more likely to be
                         relevant in deriving Tier II values than Tier
                         I criteria.
                         A. Carcinogens
                            1. A non-threshold mechanism of
                         carcinogenesis shall be assumed unless
                         biological data adequately demonstrate the
                         existence of a threshold on a chemical-^
                         specific basis.
                            2. All appropriate human epidemiologic
                         data and animal cancer bioassay data shall be
                         considered. Data specific to an
                         environmentally appropriate route of
                         - exposure shall be used. Oral exposure should
                         be used preferentially over dermal and
                         inhalation. The risk associated dose shall^be
                         set at a level corresponding to an incremental
                         cancer risk of one in 100,000. If acceptable
                         human epidemiologic data are available for a
                         chemical, it shall.be used to derive the risk
                         associated dose. If acceptable human
                         epidemiologic data are not available, the risk
                         associated dose shall be derived from
available animal bioassay data. Data from a
species that responds most like humans is
preferred where all other considerations
regarding quality of data are equal. For
example, in'the absence of data to distinguish
the most relevant species, data from the most
sensitive species tested, i.e., the species
showing a carcinogenic effect at the lowest   .
administered dose, shall generally be used.
  3. When animal bioassay data are used and
a non-threshold mechanism of
carcinogenicity is assumed, the data are fitted
to a linearized multistage computer model
(e.g, Global "86 or equivalent model). Global
'86 is the linearized multistage model,
derived by Howe, Crump and Van
Landingham (1986) which EPA uses to   .
determine cancer potencies. The upper-
bound 95 percent confidence limit on risk
(or, the lower 95 percent confidence limit on ,
dose) at the one in 100,000 risklevel shall
be used to calculate a risk associated dose
(RAD). Other models, including
modifications or variations of the linear
multistage model which consider the data
more appropriately may be used on a case-
by-case basis.
  4. If the duration of experiment is
significantly less than the natural lifespan of
the test animal (for example, as cited in the
Human Health TSD, 78 weeks for mice and
90'weeks for rats), the slope will be adjusted
to compensate for latent tumors which were
not expressed (see, e.g., U.S. EPA, 1980.)
  5. A species scaling factor shall be used to
account for differences between test species
and humans. It shall be assumed that
milligrams per surface area per day is a«
equivalent dose between species (U.S. EP/,.
1986). All doses presented in mg/kg ,
bodyweight will be converted to an
equivalent surface area dose by raising the
mg/kg dose to the % power. However, if ,
adequate pharmacokinetic and metabolism
studies are available, these data may be
factored into the adjustment for species
differences on a case-by-case basis.
  6. Additional data selection and
adjustment decisions must also be made in
the process of quantifying risk. Consideration
must be given to tumor selection for    .
modeling, e.g., pooling estimates for multiple
tumor types and identifying and combining  -
benign and malignant tumors. All doses shall
be adjusted to give an average daily dose over
the study duration. Adjustments in the rate
of tumor response must be made for early
mortality in test species. The goodness-of-fit
of the model to the data must also be
assessed.
   7. When a linear, non-threshold dose
response relationship is assumed, the risk
associated dose shall be calculated using the
following equation:
           RAD =
                     0.00001
 Where:                    '
   RAD = risk associated dose in milligrams
 of toxicant per kilogram body weight per day
 (mg/kg/day).
   0.00001 (1 x 10-3) = incremental risk of
 developing cancer equal to one in 100,000.
  -qi* = slope factor (mg/kg/day)~'.

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                  Federal Register  /  Vol.'58, No. 72 I Friday, April  16, 1993 / Proposed Rules          21027
   8. If human epidemiologic data and/or
 other biological data (animal] indicate that a
 chemical causes cancer via a threshold
 mechanism, the risk associated dose may be
 calculated via a method which assumes a
 threshold mechanism is operative on a case-
 by-case basis.
 B. Noncarcinogens "             v-
   1. Noncarcinogens shall generally be
 assumed to have a threshold dose or
 concentration below which no adverse effects
 should be observed^Therefore, the Tier I
 criterion or Tier II value is the maximum
 water concentration of a substance at or
 below which a lifetime exposure from
 drinking the water, consuming fish caught in
 the water, and ingesting water as a result of
• participating in v?ater-related recreation
 activities is likely*to be without appreciable
 risk of deleterious effects.
   For some rioncarcinogens, there may not be
 a threshold dose below which no adverse
 effects should be observed. Chemicals acting
 as genotoxic teratogens and germline
 mutagens are thought to possibly produce
 reproductive and/or developmental effects
 via a genetically linked mechanism which
 may have no threshold. Other chemicals; also
 may not demonstrate a threshold. Criteria for
 these types of chemicals will be established
 on a case-by-case basis using appropriate
 assumptions reflecting the likelihood that no
 threshold exists.
   2. All appropriate human and animal
 tpxicologicdata shall be reviewed and
 evaluated. Exposure should be via a route
 most relevant to environmental exposure.
 When acceptable human data are not
 available (e.g., well-conducted epidemioldgiG
 studies), animal data from species most
 biologically relevant to humans shall be
 used. In the absence of data to distinguish the
 most relevant species, data from the most
 sensitive animal species tested, te., the
 species showing a toxic effect at the lowest
 administered dose (given a relevant route of
 exposure), shall generally be used.
   3. Minimum data requirements are
 specified in section n.B of this appendix. The
 experimental exposure level representing the
 highest level tested at which no adverse
 effects were demonstrated (NOAEL) from
 studies satisfying the provisions of section
 n.B of this appendix shall be used for criteria
 calculations. In the absence of a NOAEL, the •
 lowest observable  adverse effect level
 (LOAEL) from studies satisfying the  _.'••- .
 provisions of section n.B of this appendix
 may be used if it is based on relatively mild
 and reversible effects.
   4, Uncertainty factors shall be used to
 account for the uncertainties in predicting -
 acceptable dose levels for the general human
 population based upon experimental animal
 data or limited human data.       -
   a. An uncertainty factor of 10 shall
 generally be used when extrapolating from
 valid experimental results from studies on
 prolonged exposure to average healthy   .
 humans,  this 10-fold factor is used to protect
 sensitive members of the human population,
   b. An uncertainty factor of 100 shall
 generally be used when extrapolating from
 valid results of long-term studies on
 experimental animals when results of studies
 of human exposure are not available or are
 inadequate. In comparison to a, above, this
 represents an additional 10-fold uncertainty
 factor in extrapolating data from the average
 animal to the average human.
.   c. An uncertainty factor of up to 1000 shall
 generally'be used when extrapolating from
 animal studies for which the exposure -
 duration is less than chronic or when other
 significant deficiencies in study quality are
 present, and when useful long-term human
 data are not available. In comparison to b,
 above, this represents an additional
 uncertainty factor of up to 10-fold. The level
 of additional uncertainty applied for
 subchronic exposure depends on the
^duration of the study used relative to the
 lifetime of the experimental animal.
   d. An additional uncertainty factor of
between one and ten may be used when
deriving a criterion from a lowest observable
adverse effect level (LOAEL). This
uncertainty factor accounts for the lack of an
identifiable no observable adverse effect level
(NOAEL). The level of additional uncertainty
applied may depend upon the severity of the
observed adverse effect.                  '
   e. An additional uncertainty factor of
between one and ten may be applied when
there are limited effects data or incomplete
subacute or chronic tqxicity data. The level
of quality and quantity of the experimental
data available as well as structure-activity
relationships may be used to determine the
factor selected.                    ,
   £ When deriving an uncertainty factor in
developing a Tier I criterion or Tier n value,
the total uncertainty, as calculated following
the guidance of 4.a-e, cited above,  shall not
exceed 30,000.      •
   5. All study results shall be converted, as
necessary, to the standard unit for acceptable
daily exposure of milligrams of toxicant per
kilogram of body weight per day (mg/kg/day)..
Doses will be adjusted for continuous
exposure, i.e., seven days/week, 24 hours/
day, etc.     ,
C. Criteria and Value Derivation
   1. Standard Exposure Assumptions. The
following represent the standard exposure
assumptions used to calculate Tier! criteria
and Tier II values for carcinogens and
noncarcinogens. Higher levels of exposure
may be assumed by States and Tribes t
pursuant to CWA section 510, or-where '
appropriate in deriving site-specific criteria
pursuant to procedure 1 in appendix F to
part 132.

   Wh = weight of an average human
(Wh = 70kg).
.   WCd = per capita water consumption  .
(both drinking and incidental exposure)
for surface waters classified  as public -
water supplies = two liters/day.;
or
   WC, = per capita incidental daily
water ingestion for surface waters not
used as human drinking water sources
= 0.01 liters/day.
  FG = per capita daily consumption of
regionally caught freshwater fish =
0.015 kg/day.    .
  B AF = bioaccumulation factor, as
derived using the BAF methodology in
appendix B to part 132.
    2. Carcinogens. The Tier I human
  cancer criteria or Tier n values shall be
  calculated as follows:
      HCV = -
                   RADxWh
               WC-f (EC x BAF)
  Where:          ;,  -,'_..         .   :   ,
    HCV = Human Cancer Value in
,  milligrams per liter (mg/L).
    RAD = Risk associated dose in
,  milligrams toxicant per kilogram body
  weight per day (mg/kg/day) that is
  associated with a lifetime incremental
  cancer risk equal to one in 100,000.
    Wh = weight of an average human  •
  (Wh=70kg).
    WCd = per capita water .consumption
  (both drinking and incidental exposure)
  for surface waters classified as public
  water supplies = two liters/day.
•or ;•'-•  -.     .•••'•  -i'  ''•.'""     • :
    WCr = per capita incidental daily
  water ingestion, for surface waters not
  used as human drinking water sources
  = 0.01 liters/day.
    FC = per capita daily consumption of
  regionally caught freshwater fish - .
  0.015 kg/day.
    BAF = bioaccumulation factor; as  •'
  derived using the BAF methodology in
  appendix B to part 132.
    3. Noncarcinogens. The Tier I human
 noncancer criteria or Tier n values shall
 be calculated as follows:
      HNV =
               ADExWhxRSC
               WC+(FCxBAF)
'Where: .          '.''•-  ;              ;
   HNV = Human noncancer value in
 milligrams per liter (mg/L).  ','•
   ADE = Acceptable daily exposure in
 milligrams toxicant per kilogram body -
 weight per day (mg/kg/day).
   RSC = Relative source contribution
 factor of 0.8 for bioaccumulative
 chemicals of concern. This shall be
 applied to bioaccumulative chemicals of
 concern.                       •
.   Wh = weight of an average human
 (Wh=70kg).
   WCd = per capita water consumption
 (both drinking and incidental exposure)
 for surface waters classified as  public
 watersupplies = two liters/day.
 or
   WCr = per capita incidental daily
 water ingestion for surface waters not  •
 used as human drinking water  sources
 = 0.01 liters/day.
   FC = per capita daily consumption of
 regionally caught freshwater fish =
 0.015 kg/day.        v
   BAF = bioaccumulation factor, as  •
 derived using the BAF methodology in
 appendix B to part 132.

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21028           Federal Register / Vol. 58, No.  72 / Friday, April 16, 1993  / Proposed Rules
IV. nefarences
  Howa, R.B,, K.S. Crump and C. Van
Landingham. 1986, Computer Program to
Extrapolate) Quantitative Animal Toxicity
Data to Low Doses, Prepared for EPA under
subcontract #2-25lU-2745 to Research
Triangle Institute.
  U.S, Environmental Protection Agency.
1980. Water Quality Criteria Availability,
Appendix C Guidelines and Methodology
Used in the Preparation of Health Effects
Assessment Chapters of the Consent Decree
Water Quality Criteria Documents. Available
from U.S. Environmental Protection Agency,
OHlco of Water Resource Center (WJS-550A),
401M St., SW., Washington, DC 20460.
  U.S. Environmental Protection Agency.
1986. Guidelines for Carcinogen Risk
Assessment. Available from U.S,
Environmental Protection Agency, Office of
Water Resource Center (WH-S50A), 401 M
St., SW., Washington, DC 20460.

Appendix D to Part 132—Great Lakes
Water Quality Initiative Methodology
for the Development of Wildlife Criteria
and Values

I, Introduction
  A Groat Lakes Water Quality Wildlife
Criterion (GLWC) is the concentration of a
substance which, if not exceeded, protects
avian and mammalian wildlife populations
Inhabiting the Great Lakes basin from adverse
effects resulting from the ingestion of surface
•waters and aquatic prey taken from surface
wafers of the Groat Lakes System. These
criteria are numeric or narrative in nature
and are based on existing toxicologies!
studies of the substance of concern and
quantitative information about the exposure
of wildlife species to the substance (i.e., food
and water consumption rates). Since
toxkologictl and exposure data for
Individual wildlife species is limited, a
GLWC is derived using a methodology
similar to that used to derive noncancer
human health criteria (Barnes and Dourson,
1988; NAS. 1977; NAS, 1980; U.S. EPA.
1980). Separate avian and mammalian values
are developed using taxonomic class-specific
toxicity data and exposure data for five
representative Groat Lakes basin wildlife
gpcdes. The representative wildlife species
selected are representative of avian and
mammalian species resident in the Great
Lakes basin which are likely to experience
significant exposure to contaminants through
the aquatic food web; they are the bald eagle,
osproy. belted kingfisher, mink, and river
otter. Taxonomic class-specific avian and
mammalian Wildlife Values (WVs)—
concentrations of a substance which if not
exceeded should protect the wildlife
species—are calculated using the geometric
moans of the species' WVs and the lower of
the mammalian and avian WVs is selected as
thoGLWC.
   This appendix establishes a two-tiered
approach to the protection of avian and
mammalian communities in the Great Lakes
basin. This appendix sets forth the method
for deriving both Tier I criteria and Tier n
values.
n. Calculation of Wildlife Values for Tier I
Criteria and Tier U Value Development
  Table 4 of part 132 and Table D-l of this
appendix to part 132 contain the proposed
Tier I criteria calculated by EPA pursuant to
the provisions below. No Tier II values have
been calculated.
A. Equation for Avian and Mammalian
Wildlife Values"
  The Tier I GLWC is the lower of the two
taxonomic class-specific wildlife values. A
Tier H value may be based on the wildlife -
value derived from a single taxonomic class.
These wildlife values are calculated using the
equation presented below.
  wv=
[NOAELxSSF]xWtA
   WA+[FAXBAF]
Where:
  WV = Wildlife value in milligrams of
substance per liter (mg/L).
  NOAEL = No observed adverse effect
level in milligrams of substance per
kilogram of body weight per day (mg/kg-
d) as derived from mammalian or avian
studies as described in section II.E of
this document,
  WIA = Average weight in kilograms
(kg) for the representative species
identified for protection or the species
identified as requiring greater
protection.
  WA = Average daily volume of water
consumed in liters per day (L/d) by the
representative species identified for
protection or the species identified as
requiring greater protection.
  SSF = Species sensitivity factor. An
extrapolation factor to account for
differences in toxicity between species.
Further information is provided in
section ELI of this document.
  FA = Average daily amount of food
consumed in kilograms per day (kg/d)
by the representative species identified
for protection or the species identified
as requiring greater protection.
  BAF = Aquatic life bioaccumulation
factor for wildlife in liters per kilogram
(L/kg). Chosen using guidelines for
wildlife presented in appendix B to part
132, Methodology for Development of
Bioaccumulation Factors.
  The term "wildlife value" is used to denote
any value which results from each
application of the equation presented above
or any averaging of such numbers. It can refer
to values derived using either the Tier I or
Tier n database requirements. Wildlife values
calculated for the representative species are
used to calculate taxonomic class-specific
wildlife values. "Tier II wildlife value," or
"Tier II value," is used to denote any final
number derived from data meeting only the
Tier n requirements and using the procedure
presented in this document. "Tier I wildlife
value," or Tier I value," is used to denote any
final number derived from.data meeting .the.
Tier I database requirements calculated using
 the procedure presented in this document.  <
 "Tier I criteria" are the four wildlife criteria
 presented in Table 4 of part 132 and in Table
 D-l of this appendix to part 132,
 B. Identification of Representative Species for
 Protection
  Piscivorous species are identified as the
 focus of concern for wildlife criteria
 development in the Great Lakes, An analysis
 of known or estimated exposure components
 for avian and mammalian wildlife species is
 presented in the Technical Support
 Document for Wildlife Criteria (U.S. EPA,
 1993a). This analysis identifies three avian
 species and two mammalian species as
, representative species for protection. The
 NOAEL obtained from toxicity data for each
 taxonomic class is used to calculate Wildlife
 Values (WVs) for each of the five
 representative species identified for
 protection.
  Because of the lack of empirical species-
 specific exposure information for all wildlife
 species in each taxonomic class, the
 geometric means of wildlife values for the
 representative species within each taxonomic
 class are used to determine the taxonomic
 class-specific wildlife value.
 C. Identification of Species Requiring Greater
 Protection                       '
  If exposure and/or hazard data identifies a
 Great Lakes basin avian or mammalian
 wildlife species which is at risk, for which
 the wildlife criteria or Tier II value based on
 the representative species may not be
 adequately protective, the final avian or
 mammalian WV will be calculated
 specifically for that species. A class-specific
 WV for a species determined to require
 greater protection is calculated using the
 equation presented above, but using exposure
 information for the species determined to
 require greater protection. Toxicity
 information specific for that species is .also
 used if it is available. This  provision can be
 invoked in the derivation of site-specific
 criteria where a wildlife species has been
 determined to require greater protection.
 D. Calculation of Avian and Mammalian
 Wildlife Values
   The taxonomic class-specific Wildlife .
 Values (WV) can be determined in two  wayd
 both of which use the equation presented
 above. The avian WV is the geometric mean
 of the WVs calculated for the three
 representative avian species identified for
 protection or it is the WV calculated for an
 avian species determined to require greater
 protection. The mammalian WV is the
 geometric mean of the WVs calculated for the
 two representative mammalian species or it
 is the WV calculated for a mammalian
 species determined to require greater
 protection. When a WV is calculated for a
 species determined to require greater
 protection, the taxonomic class-specific WV
 . for use hi the determination of a GLWC is the
 lower of the WVs 'calculated for the given
 taxonomic class (the geometric mean of the
 WVs calculated for the representative species
 or the WV calculated for the species
 determined to require greater protection).
 The Tier I GLWC is set equivalent to the
 lower of the avian or mammalian WVs
 determined,

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                   Federal  Register / Vol.  58, No. 72 7 Friday, April  16, 1993  /  Proposed Rules
                                                                             21029
 Iff. Parameters of the Hazard.Component of
 the Wildlife Criteria Methodology
 A. Definitions
   The following definitions provide
 additional specificity and guidance in the "-. •
' evaluation of toxieity data and the
 application of this methodology. These
 definitions are applicable to both Tier I
 criteria and tier fl value development.
   Acceptable eridpoints. For the purpose of
 wildlife criteria derivation, acceptable
 subchronic and chronic endpoints are those
 which affect organismal growth or viability,
 or reproductive or developmental success or
 any other endpoint which is, or is directly
 related to, parameters that influence
 population dynamics.    .
   Chronic effect An adverse effect, measured
 by assessing an acceptable endpoint,
 resulting from continual exposure over
 several generations, or at least over a
 significant part of the test species projected
 life span or life stage.
   Lowest-observed-adverse-effect-level
 (LOAEL). The lowest tested dose or
 concentration of a substance which resulted
 in an observed adverse effect in exposed test
 organisms when all higher doses or
 concentrations resulted in the same o:t more
 severe effects.
   No-observed-qdverse-effect-level (NOAEL).
 The highest tested.dose or concentration of
 a substance which did not result in an
 observed adverse effect in exposed test.,;
 .Organisms.  :
 ,  Subchronic effect. An adyerse.effecf,
 measured by assessing an acceptable " .. - .
 endpoint, resulting from continual exposure
 for a period of time less than that deemed
 necessary for a chronic test         :
 B. Minimum Toxieity Database for The I
 Criteria Development
•:  A NOAEL or LOAEL value is required for
 . criterion calculation. To derive a Tier I
 criterion for wildlife, the minimum toxieity
 database required must provide^enough data ,
 to generate a subchronic or chronic dose-
 response curve for any given substanca for
 boUi mammalian and avian species.
 • In reviewing the toxieity data available
 which meets the mhiiiniim data requirements
 for each taxonomic class, the following order
 of preference shall be applied to select the
 appropriate NOAEL or LQAEL tp be used for
! calculation of individual wildlifayarues.
•• Data from peer-reviewed field studies of
 wildlife species takes precedence oveit other
 types of studies. An acceptable field study
. must be of subphrpniic or chronic dotation,
 provide a defensible, chemical-specific dose-
 response curve in which cause and effect are
 clearly established, and assess acceptable
 endpoints as defined in this document. When
 acceptable wildlife field studies are not
 available, the needed toxieity information
 may come from peer-reviewed laboratory
 studies. When laboratory studies are used,
 preference shall be given to laboratory
 studies with  wildlife species over traditional
 laboratory animals to reduce uncertainties in
 making interspecies extrapolations.
 Whenever possible, all available laboratory
 data and field studies shall be reviewed to
 corroborate .the final GLWC, to Assess the
 reasonableness of'the toxieity,value used,
 and to assess the appropriateness of any
 uncertainty factors which are applied.     •
" • When laboratory data are used, the
 following requirements must be met:
   1. The mammalian data must come from at
 least one well-conducted study of 90 days or
 greater designed to observe subchronic or
 chronic effects as defined in this document.
   2. The. avian data must come from at least
 one well-conducted study of 28 days or
 greater designed to observe subchronic or
 chronic effects as defined in this document.
   In reviewing the studies from which a
 NOAEL is derived for use hi calculating a •
 wildlife value, studies involving exposure
 routes other than oral may be considered
 only when an equivalent oral daily dose can
 be estimated and technically justified. This is
 because the mechanism of toxieity and/or
 issues of dosimetry (e.g. delivered dose to
 target organs, extent of xenobiotic    '  - -   .
 metabolism, etc.) for other routes of exposure
 (e.g., dermal or inhalation) may differ; and
 the criteria and value calculations are based
 on an oral route of exposure.
   In assessing the studies which meet the
 minimum data requirements, preference
 should be given to studies which assess
 effects oh developmental or reproductive
'endpoints because, in general, these are more
 important endpoints in ensuring that a
 population's productivity is maintained.
 C Minimum Toxieity Database for Tier n
 Wildlife Value Development
   For those substances for which Tier I  .
 criteria cannot be derived, all data from  avian
 and mammalian species may be considered
 in the development of Tier n values. To
 derive a Tier II value for wildlife, the
 minimum toxieity database required must
 provide enough data to generate a subchronic
 or chronic dose-response curve for any given.
 substance for either a mammalian or avian
 species. Subchronic or chronic toxieity data
 shall be used to derive NOAELs for Tier II
 values. When laboratory data for avian
 species is used to calculate a Tier II wildlife
 value, it must meet the same requirements
 presented above for Tier I criteria derivation.
 When laboratory data for mammals is used tp
 calculate a Tier n wildlife value, a 28-day
 subchronic study which assessed acceptable  '
 endpoints may be used in addition to studies
 which meet the requirements presented
 above for Tier I criteria derivation. Relevant
 LD50 or eight-day LC50 values from avian
 and mammalian studies may be used in
 support of subchronic and chronic toxieity
 data; however, a Tier n value shall not be
 calculated solely on the basis of LD50 or
 eight-day LC50 data.
 D. Selection of NOAEL or LOAEL Data
.   In selecting data to be used in the
 derivation of wildlife values, the nature  of
 the observed endpoints will be the primary
 selection criterion. All data not part of the
 selected subset may be used to assess the
 reasonableness of the toxieity value and the
 appropriateness of any uncertainty factor
 which is applied.
   1. If more than one NOAEL is available  :•
 within a taxonomic class, based on different
 endpoints of toxieity, that NOAEL which
 likely best reflects potentialimpacts to
 wildlife populations throughi resultant
 changes in mortality and/or fecundity rates :
 shall be used for the calculation of wildlife
. values. ,  •            -...;.        -••'      •
   2. If more than one NOAEL is available
 within a taxonomic class based on the same
 endpoint of toxieity, the NOAEL from the
 most sensitive species is used.
   3. If more than one NOAEL based on the
 same endpoint of toxieity is Available for a
 given species, the NOAEL for that species
 shall be. calculated usmg the geometric mean
 of those NOAELs.
 E, Determination of the NOAEL in Proper
 Units           •;..;•        :           :   ,
   In those cases in which a NOAEL is         ,
 available in units other than mg/kg-d, the
 following procedures shall be used to convert
 the .NOAEL to appropriate units prior to
 calculating a wildlife value.
   If the NOAEL is given in milligrams of
 toxicant per liter of water consumed by the
 test animals (mg/L), the NOAEL shall be       •
 multiplied by the daily average volume of  ,
 water consumed by the test animals in liters
 per day (L/d) and divided by the average
 weight of the test animals in kilograms (kg).
   If the NOAEL is given in milligrams of
 toxicant per kilogram of food consumed by ^
 the test animals (mg/kg), the NOAEL shall be
 multiplied by the average amount of food in
 kilograms consumed daily by  the test animals
 (kg/d) and divided by the average weight of
 the test animals in .kilograms (kg).
 F. Drinking and Feeding Rates       .
   When drinking and feeding rates and body
 weight are needed to express the NOAEL in
 mg/kg-d, they should be obtained from the
 study from which the NOAEL was derived.
 If not already determined, body weight, and
 drinking and feeding rates are to be        -
 converted to a wet weight basis.      •
  lithe study does not provide the needed...    •
values, they shall be determined from
 appropriate data tables-Air the particular
 study species. For studies done with
 domestic laboratory animals, the following
reference should be consulted:' Registry of
Toxic Effects of Chemical Substances
 (National Institute for OccupationaLSafety
 and Health, the latest edition,  Cincinnati,       '
 OH.). When insufficient data exist for other
mammaUan or avian species, the allometric    ;
.equations from Calder and BraUn (1983) and
Nagy (1987) which are presented below phall
be applied to approximate the needed
 feeding or drinking rates.              '
  For mammalian species the  allometric
 equations are;


   i.     FA = 0.0687 x (WtA)°-82

Where:        ,                    ""..
   FA=Feeding rate of mammalian
     species in kilograms per day (kg/d)  ,
     dry weight.
   WtA=Average weight in kilograms (kg)
 ,  •;  of the test animals.             ,':;
   2.     \\k = 0.099 x
Where: ;:  .'.".  :: _./{: :.,'•.• •".,• ; '•''-•'• .-" ••
   Wx=I3rinking rate of mammalian  •
     specdes in liters per day (L/d).

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231030	Federal Register / Vol.  58, No. 72  I Friday,  April  16, 1993 /• Proposed Rules
  WtA=«Averag3 weight in kilograms (kg)
    of the test animals.
  For avian species the allometric
equations are:

  3.    FA= 0,0582 x(WtA)°'65

Where:
  FAs=Feoding rate of avian species in
    kilograms per day (kg/d) dry
    weight.
  WU^Average weight in kilograms (kg)
    of the test animals.

  4,    WA= 0.059 x(WtA)°'67

Where:
  WA=Drinking rate of avian species in
    liters per day (L/d).
  WtA»Averag9 weight in kilograms (kg)
    of the test animals.
G. LOAEL to NOAH. Extrapolations
  la those cases in -which a NOAEL is
unavailable and a LOAEL is available, the
LOAHL may be adjusted to estimate the
NOAEL. Typically, the LOAEL is divided by
an uncertainty factor to estimate a NOAEL for
ute in deriving wildlife values. The value of
the uncertainty factor is typically within the
range of 1.0 and 10, depending on the dose-
rosponta curve. Additional references which
support this concept and are useful in
choosing an appropriate LOAEL to NOAEL
unwUinty factor are provided in the
Technical Support Document for Wildlife
Criteria (U.S, EPA, 1993a). Assistance in
choosing an appropriate LOAEL to NOAEL
uncertainty factor is also provided in
appendix A to the Great Lakes Water Quality
Initiative (GLWQI) Technical Support
Document for Human Health Criteria and
Values (U.S. EPA, 1993b).
H. Subchronic to Chronic Extrapolations
  In certain Instances where only subchronic
data ate available, the NOAEL may be
dMWtod by an uncertainty factor to
extrapolate from tubchronlc to chronic
levels. Typically the value of the uncertainty
fecloc Is within the range of 1.0 and 10. This
factor may he usad when assessing highly
biotccumuktive substances where
tojdcoldnrtlc considerations suggest that a
hkwscay of limited length underestimates
chronic hazard. Assistance in choosing an
appropriate subchronic to chronic
uncertainty factor is provided in appendix A
to the GLWQJ Technical Support Document
tor Human Health Criteria and Values (U.S.
EPA. 1993b),
I. Spedts Sensitivity Factor
  The selection of the species sensitivity
factor (SSF) shall be based on the available
lexicological data and on available data
concerning the physicochemical,
toxlcofclnatic and toxicodynamic properties
of the substance in question and the amount
and quality of available data. This value is an
uncertainty factor that is intended to account
for differences in lexicological sensitivity
among species. Guidance for choosing the
SSF is provided in the Technical Support
Document for Wildlife Criteria (U.S. EPA,.
1993a).Tfle discussion of an interspecies
uncertainty factor located in appendix A to
the GLWQI Technical Support Document for
Human Health Criteria and Values (U.S. EPA/
1993b) may also be useful in determining the
appropriate value for a SSF.
  For the derivation of Tier I criteria, a SSF
within the range of 0.01 to 1.0 may be
applied. If a SSF outside this range is used,
it must be based on sound scientific and
technical reasons and must be accompanied
by a written justification presenting this
reasoning. This justification shall be
provided to EPA as part of the State's or
Tribe's submission as required under § 132.5.
Use of a SSF outside this range is prohibited
unless approved by EPA based on its
consideration of the justification provided.
F.orTier I wildlife criteria, the SSF shall ba
used ftjr extrapolating toxicity data across
species within a taxonomic class. The Tier I
SSF is not intended for interclass
extrapolations because of the poorly defined'.
comparative toxicokinetic and
toxicodynamic parameters between mammals
and birds. However, an interclass
extrapolation employing a SSF may be used
for a given chemical if it can be supported
by a validated biologically-based dose-
response model or by an analysis of
interclass toxicologies! data, considerate of
acceptable endpoints, for a chemical analog
that acts under the same mode of toxic
action.
  For the derivation of Tier H wildlife values,
a SSF may not be greater than 1.0 but may
be lower than 0.01 without requiring a
written justification..For Tier H wildlife
values, the SSF may be used to extrapolate  .
toxicity data across the two taxonomic
classes.      ,
IV. Parameters of the Exposure Component of
the Wildlife Criteria Methodology
A. Drinking and Feeding Rates of
Representative Species or Species Requiring
Greater Protection
  The body weights (WU), feeding rates (FA),
and drinking rates |WA) for each of the  five
representative species are presented in Table
D-2 of this appendix. Trophic level dietary
composition for these species are also
presented in Table D-2 of this appendix for
use in selecting the correct bioaccumulation
factor for use in the WV equation.
  If the feeding rate (FA) or drinking rate
(WA) for the species requiring greater
protection are not known, they can  be
estimated using tho allometric equations
presented above in section III.F of this
appendix.
B. Bioaccumulation Factors
  The Methodology for Development of
Bioaccumulation Factors is presented hi
appendix B to part 132. This Guidance
document specifies that, in general, trophic
level three or four BAFs are to be used  in the
derivation of wildlife values, depending on
the species identified for protection. "Trophic
level three and four BAFs are used because
these are the-trophic levels at which the
representative species identified for
protection feed. Options to use plant and or
other trophic level BAFs are permitted based
on the identification of a species requiring
greater protection which may feed, in part or
whole, at other trophic levels.

V. References
  Barnes D. G. and M. Dourson. 1988.
Reference Dose (RfD): Description and Use in
Health Risk Assessments. Regul. Toxicol.
PharmacoL  8:471-486. Academic Press, Inc.
1250 6th Avenue;San Diego, CA 92101-
4312.
  Calder ffl, W, A. and E, J. Braun. 1983.
Scaling of Osmotic Regulation in Mammals
and Birds. American Journal of Physiology.
244:601-606. Williams and Wilkins, 1316
East 16th Street, Brooklyn, NY 11230-6003,
  Nagy, K. A. 1987. Field Metabolic Rate and
Food Requirement Sealing in Mammals and
Birds. Ecological Monographs. 57(2):111-
128. Ecological Society of America, Arizona
State University, Tempo, AZ 85287-0001.
 • National Academy of Sciences. 1977.
Chemical Contaminants: Safety and Risk
Assessment, pp. 19-62 in Drinking Water
and Health, Volume 1. National Academy
Press, 2101 Constitution Avenue, NW.,
Washington, DC 20418.
  National Academy of Sciences. 1980.
Problems of Risk Estimation, pp. 25-«5 in
Drinking Water and Health, Volume 3.
National Academy Press, 2101 Constitution
Avenue, NW., Washington, DC 20418.
  National Institute for Occupational Safety
and Health. Latest edition. Registry of Toxic
Effects of Chemical Substances (available
only on microfiche or as an electronic
database). Division of Standards
Development and Technology Transfer, 4676
Columbia Parkway, Cincinnati, OH 45226.
  U.S. EPA. 1980. Appendix C. Guidelines
and Methodology Used in the Preparation of'
Health Effect Assessment Chapters pf the
Consent Decree Water Criteria Documents.
'pp. 79347-79357 in Water Quality Criteria
Documents; Availability. Available from U.S,
Environmental Protection Agency, Office of
Water Resource Center (WH-550A), 401 M
St.. SW., Washington, DC 20460.
   U.S. EPA. 1985. Section V.C. Evaluation .of
Health Effects and Determination of RMCLs
pp. 46944-46950 in National Primary
.Drinking Water Regulations; Synthetic
Organic Chemicals; Inorganic Chemicals and
Microorganisms. Available from U.S,
Environmental Protection Agency, Office of
Water Resource Center (WH-550A), 401 M
St., SW,, Washington, DC 20460.
   U.S. EPA. 1993a. Great Lakes Water.
 Quality Initiative Technical Support
 Document for Wildlife Criteria. Available .
 from U.S. Environmental Protection Agency,
 Office of Water Resource Center IWH-55DA)
 401 M St. SW,, Washington, DC 20460.
   U.S. EPA. 1993b. Great Lakes Water
 Quality Criteria Initiative Appendix Ai

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              '  " Federal Register /Vol.'58.  No.  72  /'Friday/April 16, 1993 / Proposed. Rules          21031
  Uncertainty Factors, in Great Lakes Water
  Quality Criteria Initiative Technical Support
  Document for Human Health Criteria and
  Values.^ NTIS #PB93-15468.ERIC: 3940.
 Tables to Appendix D to Part 132
                                       TABLE D-i .--TIER I GREAT LAKES WILDLIFE CRITERIA
,-. . ; •• ' '; '• •• .Substance - • - ,' ' ' '--. ' ;
• - -• 	 -''--• ..-..-«• • •
DDT & Metabolites 	 	 .................;.. 	 '. 	 	 	 .: 	 „ 	 	 	 	 	 	 	 	 	 	
Mercury 	 	 	 	 	 	 	 	 	 :........ 	 	 	 	 . .
PCBs (total) 	 	 	 :; 	 	 	 ;... 	 	 	 	 	 	 	 	 	 	 	 	 	 ;........................; 	 ; .
2,3,7,8-TCDD 	 	 	 	 	 	 	 	 	 	 	 	 	 	 .. 	 ; 	 	 	 	
Criterion
0 87 DO/L
180 PQ/L - •
17pg/L
0.0096 pg/L
             TABLE D-2.—EXPOSURE PARAMETERS FOR THE FIVE REPRESENTATIVE §PECIES IDENTIFIED: FOR PROTECTION
, - •'.' Species
Mink 	 	 	 	 	 	 	 .....>....,..„ 	 .......:....... 	 .....;.; •
Otter.... 	 	 	 	 	 	 	 	 	 	 	 ...... 	 	 	 	

Kingfisher 	 :... 	 	 	 	 	 	 	 „....,-
Osprey 	 	 	 ........;. 	 	 	 	 	 	 	 ;.. 	 	 .. .....
Eagle 	 	 	 ., 	 	 	 ................I 	 	 	
Body Wt.
(WtA)
(Kg)
10
80

015
15
4.5 :
Ingestion
rate f A)
(Kg)d)
0"15
09

0 075
03
0.5
Drinking
rate (WA)
(L/d)
0099
064

0017
0 077
0.16
Trophic level
of wildlife
food source
3'
3
' 4


- "• . ', 4
Percent diet
at each
trophic level
10fl
50
50
inn
ion
100
 Appendix E to Part 132—Great Lakes
 Water Quality Initiative
 Antidegradation Policy          ' .

 ' I. Antidegradation Standard
   This antidegradation standard shall be
 applicable to any source, point orrionpoint,
 of pollutants to surface waters of the Great
 : Lakes System. Pursuant to this standard:
 ,  A. Existing instream water uses, as defined
 pursuant to 40 CFR part 131, and the level
 of water quality necessary to protect existing
' uses shall be maintained and protected.
 Where designated uses of the water body are
 impaired, there shall be no lowering of the
 water quality with respect to the pollutant or
 pollutants which are causing the impairment;
 '  B, Where, for any parameter, the water
 quality exceeds that level necessary to   ,
 support the propagation offish, shellfish, and
 wildlife and recreation hi and  on the waters,
 that water shall be considered  high quality
 for that parameter and that quality shall be
 maintained and protected unless the State •
 finds, after full satisfaction of
 intergovernmental coordination and public
 participation provisions of the State's
 continuing planning process, that allowing
 ipwer water quality is necessary to
 accommodate important economic or social
. development in the area in which the waters
 are located. In allowing such degradation, the
 State shall assure water quality adequate to
 protect existing uses fully. Further, the State
 shall assure that there shall be achieved the
 highest statutory and regulatory requirements
 for all new and existing point sources and all
 cost effective and reasonable best
 management practices for nonpoint source
 controls. The State shall utilize the
 Antidegradation Implementation Procedures
 of section II of this appendix, the
 Antidegradation Demonstration provisions of
 section ID of this appendix, and the .
 Antidegradation Decision provisions of
 section IV of this appendix in determining if .
 the significant lowering'of water quality shall
 he allowed;              :
   C. Where high quality waters constitute an
 outstanding National resource, such as
 waters of National and State parks and
 wildlife refuges and waters of exceptional
 recreational of ecological significance, that,.
 water quality shall be maintained and  .,   :
 protected; and
   D. In those cases where the potential  ,
 lowering of water quality is associated with
 a thermal discharge, the decision to allow
 such degradation shall be consistent with
 section 316 of the Clean Water Act

 JI. Antidegradation Implementation.
 Procedures   :     • •  .'
   A. Definitions—Bioaccumulative chemical
 of concern. A bioaccumulative chemical of •
 concern is: Any chemical which, upon
 entering the surface waters, by itself or as its
. transformation product, bioaccumulates in
 aquatic organisms by a factor greater than
 1000. BCCs include all of the pollutants
.identified as BCCs in Tab.le 6 of part 132."
   De minimis. The lowering of water quality
iby a pollutant may be considered de minimis
 if it satisfies all of the following criteria for
 the pollutant under consideration, arid such
 a determination is consistent with applicable
 requirements and limitations in appendix F
 to 40 CFR 132 (implementation procedures),
 including appropriate margin of safety
 allocations:
 —The lowering of water quality does not
   involve a bioaccumulative chemical of
   concern;               .*  ,
 —The lowering of water quality uses less
   than 10 percent of the unused assimilative
   capacity; and
 —For pollutants included on Table 5 of part
   132, at least 10 percent of the total
   assimilative capacity remains unused after  .
 •  the lowering of water quality;            '
 where;  ,       ;
 —Unless impracticable, the total assimilative
   capacity is determined as the product of
   the applicable water quality criterion times
   the critical, low flow, or designated mixing
   volume in the.case of lakes, for the water
  , body in the area where the water quality
: is proposed to be lowered, expressed as a
 > mass loading rate. The unused assimilative
   capacity is that amount of the total
  - assimilative capacity not utilized by point

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 21032
Federal Register / Vol. 58,  No.  72  /  Friday,  April 16, 1993  / Proposed Rules
   source and nonpoint source discharges.
   Tho unused assimilative capacity is
   wtabHsfaed at the time the request to lower
   water quality is considered,
   H&J» quality waters. High quality waters
 are those that satisfy the criteria spcified in
 soction 1.B of this appendix regarding the
 quality of tho water.
   Lake Superior Basin—Outstanding
 National Resource Wafers. Lake Superior
 Basic—Outstanding National Resource
 Waters shall be those designated as such by
 tho Stale consistent with the September 1991
 Bi-Ntllonil Program to Restore and Protect
 the Lake Superior Basin. The purpose of such
 desSgnettons shall be to prohibit new or
 increased discharges of Lake Superior
 bio-accumulative substances of immediate
 ccr.com from point sources in these areas.
   Lake Supurtarbioaccumulalive substances
 offamsdiata concern, A list of substances
 identified Sa tho September 1891 Bi-National
 Program to Restore and Protect the Lake
 SuptHor Batin. They include: 2,3,7,8-TCDD;
 octachloioftyrenej hexachlorobonzene;
 chlocdtae; DDT, DDE, and other metabolites;
 toxupfaese; PCBs; and mercury. Other
 chemicals may be added to the list following
 tha State's assessments of environmental
 effects and impacts and after public review
 mad comment,
   Qr.titanding National flesouree Waters.
 Outstanding National Resource Waters
 (GNRW*) shall be those designated as such
 by fta States, The State ONRW designation
 shall describe the quality of such waters to
 stttva M Us« benchmark of the water quality
 that thill be maintained and protected.
 Categories of watars which are eligible for
 designation include but are not limited to the
 following five categories, which are waters
 recognized as;
 —Important because of protection through
  official action, such as Federal or State law.
  Presidential or Secretarial action,
  mtanwlionel treaty, or Interstate compact;
 —•Having exceptional recreational
  significance;
 —Having exceptional ecological significance;
 —Htving other special environmental,
  recreation:.!, or ecological attributes: or
 —Waters whose designation as Outstanding
  National Resource Waters is reasonably
  necessity for the protection of waters
  Identified in above.
  Pollutant, The term pollutant is as defined
 to fecttoa 502 of tHe Clean Water Act and
 includes toxic, conventional and
 noccoQventional pollutants, and
 bloaccumula'.ivo chemicals of concern as
 they are defined in this section.
  Significant lowering of water quality. A
 significant lowering of water quality occurs
 when any of the following conditions exist:
—There is an Increase in the rate of mass
  loading. In excess of that defined by the
  existing effluent quality controls
  established pursuant to section II. D. 1. of
  this appendix, of any bioaccumulative
  chemical of concern to the surface water
  from an action by the permitted at aa
  existing, expanding or new point source;
 -That* is art increase in the rate of mass
  loading, in excess of that defined by the
  existing effluent quality controls
                           established pursuant to section n. D. 1. of
                           this appendix, of any bioaccumulative
                           chemical of concern to the surface water
                          • from an action by the regulated entity at an
                           existing, expanding or new nonpoint
                           source, where existing independent
                           regulatory authority requires compliance
                           with water quality standards;
                         —There is an increase, other than a de
                           minimis increase, in the permit limitations
                           governing the rate of mass loading of any
                           pollutant that is not a bioaccumulative
                           chemical of concern to  the surface water at
                           an existing, expanding or new point
                           source, unless the ambient concentration of
                           the pollutant in the affected water body,
                           outside of a designated point source
                           mixing zone, where applicable, will not
                           increase. The Director may also take into
                           consideration potential impacts on
                           sediments and biota;
                         —There is aa increase in the permit
                           limitations governing the rate of mass
                           loading of any pollutant that is not a
                           bioaccumulative chemical of concern from
                           a nonpoint source, where existing
                           independent regulatory authority requires
                           compliance with water quality standards,
                           where such permit limitations are those
                           authorized by the governing nonpoint
                           source program, unless  the ambient  '
                           concentration of the pollutant in the
                           affected water body, outside of a
                           designated mixing zone, where applicable,
                           will not increase. The Director may also
                           take into consideration potential impacts
                          on sediments and biota; or
                        —For any action, where such action is
                           determined by the Director, on a case-by-
                          case basis, to be significant
                          B. For all waters, the Director shall ensure
                        that the level of water quality necessary to
                        protect existing uses is maintained. In order
                        to achieve this requirement, and consistent
                        with 40 CFR 131.10, water quality standards
                        use designations must include all existing
                        uses. Controls shall be established as
                        necessary on point End nonpoint sources of
                        pollutants to ensure that the criteria
                        applicable to the designated use are achieved
                        ia the water and that any designated use of
                        a downstream water is protected Where
                        water quality does not support the designated
                        uses of a water body or ambient pollutant
                        concentrations exceed water quality criteria
                        applicable to that water body, the Director
                        shall allow no lowering of water quality for
                        the pollutant or pollutants preventing the
                        attainment of such uses or exceeding such
                        criteria.
                          C. For Outstanding National Resource
                        Waters:
                          1. The Director shall ensure, through tie
                        application of appropriate controls on
                        pollutant sources, that water quality is
                        maintained and protected.
                          2. Exception. A short-term, temporary
                        (weeks or months) lowering of water quality
                        may be permitted by the Director.
                          D. For high quality waters, the Director
                        shall ensure that no significant lowering of
                        water quality occurs except as the action
                        resulting in the significant lowering of water
                        quality satisfies the conditions of section ill
                        of this appendix regarding completion of an  ,
                        antidegradation demonstration and the
 information thus provided is determined by
 the Director pursuant to section IV of this
 appendix to adequately support the
 significant lowering of water quality.
   1. To prevent the significant lowering of
 water quality that would result from any
 increased rate of mass loading of a
 bioaccumulative chemical of concern from
 ajiy source, the Director shall establish
 conditions in the control document
 applicable to the pollutant source  that
 restricts, unless prior approval for an
 increase is received from the Director, the
 rate of mass loading of such bioaccumulativi,
 chemical of concern to the baseline level
 established, considering historical rates of
 discharge, at the time of issuance of the
 control document. In establishing  the
 existing effluent quality level, all data
 collected over the term of the previous
 control document that are representative of
 (a) the typical operation of the pollutant
 source at the time of permit issuance and (b)
 bioaccumulative chemical of concern mass
 loading rates at the time of permit  reissuance,
 should be utilized to define the existing
 effluent quality. The Director may  account
 for recent temporary changes in effluent
 quality that are not, representative of mass
 loading rates generally experienced and
 expected to resume in the future.
   For point source dischargers, such control
 requirements shall be specified in  the
 discharger's National Pollutant Discharge
 Elimination System (NPDES) permit upon
 reissuance and may include,  but are not
 limited to, effluent limitations, notification
 requirements, or discharge prohibitions,
 provided that the control requirements
 utilized prevent any increase in the rate of
 bioaccumulative chemical of concern mass
 loading. A subsequent increase in the rate of
 mass loading may be authorized by the -
 Director provided such increase has been
 supported by a satisfactory antidegradation
 demonstration pursuant to section III of this
 appendix, and provided the control
 document is modified to specify the newly
 approved rate of mass loading. Control
 documents shall also contain a condition
 which prohibits the entity responsible for the
 pollutant loading from undertaking any •
 deliberate action the result of which would
 be an increase in the rate of mass loading of
 any bioaccumulative chemical of concern,
 unless an antidegradation demonstration is
 provided to the Director and prior approval
 is obtained from the Director.
  2. To prevent the significant lowering of
water quality that may result  from a change
in control requirements, such as effluent
limitations in an NPDES permit, except as
such change is determined by the Director to
result in a de minimis lowering of water
quality based on the criteria in section II.A
of this appendix, no such change shall be
allowed unless and until an antidegradation
demonstration pursuant to section  III of this
appendix is provided by the entity  and
approved by the Director! In addition to the
above requirements, no limitation in an
NPDES permit may be made less stringent in
a subsequently issued permit except as in
compliance with40 CFR 122.44(1),
  3. Fact Sheets prepared pursuant to 40 GFR
124.8 and 124.56 shall indicate when

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                    Federal Register / VoL 58, No.  72 /  Friday,  April  16, 1993  / Frooosed Rules
                                                                             21033
  conditions developed under sections ILD. 1 or
  CUD. 2 of this appendix are included in a
  permit.
    E. Special Provisions for Lake Superior.
  The following conditions apply in addition
  to those specified in sections n.B through ILD
  of this appendix for waters of Lake Superior
  so designated.
    1. A State may designate certain specified
  areas of the Lake Superior Basin as Lake
  Superior Basin— Outstanding National
  Resource Waters for the purpose of
  prohibiting the new or increased discharge of
  Lake Superior bioaccumulative substances of
  immediate concern from point sources in    :
  these areas.
    2. States may designate all watersof the
  Lake Superior Basin as Outstanding
  International Resource Waters for jthe
  purpose of restricting the increased discharge
  of Lake Superior bioacaimulative substances
  of immediate concern from point sources
  consistent with the requirements of sections
  III.C and IV. A.3 of this appendix.
    F. Exemptions. Except as the Director may
  determine  on a case-by-flase basis that the
  application of these procedures is required to
  adequately protect water quality, or as the
 . affected water body is an outstanding
  National resource water as defined in section
  H. A of this appendix, the  procedures in this
  part do not apply to:
    1, Short-term, temporary {weeks' or
  months) lowering of water quality;
    2. Bypasses that are not prohibited at 40
 . CFR 122.41(m); and               ,
    3. Response actions pursuant to the
  Comprehensive Environmental Response,
,  Compensation and Liability Act, as amended,
  or similar Federal or State authorities,
  undertaken to alleviate a release into tha
  environment  of hazardous substances,
  pollutants or  contaminants which may pose
  an imminent  and substantial danger to public
  health or welfare.     .         .

  III. Antidegmddtion Demonstration
    Any entity seeking to significantly lower
  water quality ia a high quality water or create
  a new or increased discharge of Lake
•  Superior bioaccumulativa substances of
  immediate  concern in a Lake Superior
  Outstanding International Resource Water
  must first, as required by sections H.D or
  II.E.2 of this appendixt Submit an          '
  antidegradation demonstration for
  consideration by the Director The
  antidegradation demonstration shall identify:
    A. Pollution Prevention  Alternatives
 Analysis. Identify any prudent and feasible
 pollution prevention alternatives and
 techniques that are available to the entity *Nt
 would eliminate or significantly reduce the
 extent of the lowering of water quality.
    1.  Alternatives that must be evaluated
 include:- •     .           '.    '  •  - .   •
    a. Substitution of bioaccumulative
 chemicals of concern with non-         ,    -
 bioaccumulative and/or non-toxic     .:•  ,
.substances;                       .      •
  , b. Application of water conservation ,.
 methods;     , .   . ,.  , :  '  .
   c. Waste source reductions within process .
 ,
-> d-Recycle/reuse of waste by-products,
 either liquid, solid, or gaseous; and      .
   e, Manufacturing process operational
 changes,
   2. Should such alternatives eliminate the
 need to significantly lower water quality, the
 entity shall not be required to provide the
 infoniiatibn specified in sections HLB and
 III.D of this appendix.                ,  ,  :
   B, Alternative or Enhanced Treatment,
 Identify alternative or enhanced treatment
 techniques that are available to the entity that
 would eliminate  the significant lowering of
 water quality. The evaluation shall define the
 total capital and operation costs associated
 with such alternative or enhanced treatment
 techniques as well as the total capital and
. operation costs associated with pollution
 control facilities necessary to achieve Federal
 effluent guidelines-based, water quality-
 based effluent limitations and other
 applicable State or Federal s'tandards, and   '•
 calculate the ratio of the former costs to the
 latter costs. If the ratio is less than or equal
 to 1.1, the entity shall not be required to
 provide information specified in section ffl.D
 of this appendix.       .-..--•
   C. Lake Superior. If the States designate the
 waters .of Lake Superior as Outstanding
 International Resource Waters pursuant to
 section II.E.2 of this appendix, then any
 entity proposing a new or increased !
 discharge of any Lake Superior
 bioaceunnilative substance of immediate
 concern to the Lake Superior Basin shall
 identify the best technology in process and
 treatment to eliminate or reduce the extent of
 the significant lowering of water quality. In  •
 this case, the requirements ia section HLB of
 this appendix do not apply.           s
   D. Important Social or Economic
 Development. Identify the social or economic
 developments to the area in which'the waters
 are located that will be foregoae.if the
 significant lowering of water quality is not
 allowed. Developments eonsidered-ia'ust fall
 into one of the following categories:
   1. Increase in the number of jobs;
   2, Increase in personal income or wages;
   3, Reduction in the unemployment rate or
 other social service expenses;
.4. Increase hi tax revenues; or  .  •
   5. Provision of necessary social.services?
   E. Special Provision for Remedial Actions,
 Entities proposing remedial actions pursuant
 to the Comprehensive Environmental
 Response, Compensation and Liability Act,
 as amended, corrective actions pursuant to
 the Resource Conservation and Recovery Act,
 as amended, or similar actions pursuant to
 other Federal or State environmental statutes
 may submit information to the Director that
 demonstrates that the action utilizes the most
cost effective pollution prevention and
 treatment techniques available, and
minimizes the necessary lowering of water
quality, hi lieu of the information required by
sections ffl.B through ELD of this appendix.

IV. Antidegradation Decision
  A. Once the Director determines that the
information provided by the entity pursuant
to sections 31I.A through HLDof.this
appendix is administratively complete the
Director shall-use the informattont as follows,
to determine the extent to which water
quality may be lowered by the entity.
Remedial actions covered-by section HLE of
  this appendix shall be required to implement
  the most cost-effective pollution prevention
  and treatment techniques available. All other
  actions shall be required to implement
  controls as identified pursuant to sections
  IV.A.1 through IV.A.5 of this appendix, In no
  event may the decision, reached under this
  section allow the water quality to be lowered
  below the minimum level required to fully
  support existing uses and designated uses.
    1. If the information provided pursuant to
  section IIL A of this appendix demonstrates
  that there exist prudent and feasible  •
  pollution prevention alternatives which
  significantly reduce the lowering of water
  quality, the Director shall require
  •implementation of such measures as part of
  the authorization to significantly lower water
  quality or deny the significant lowering of
  water quality.
    2. If the cost ratio defined pursuant to
  section ffi.B of this appendix is less than or
  equal to 1.1, then the Director shall deny the
  request to significantly lower water quality.
    3. If States designate the waters of .Lake
  Superior as Outstanding International
  Resource Waters pursuant to section ILE.2 of
  this appendix, any entity requesting to lower
  water quality in the Lake  Superior Basin as
  a result of the new or increased discharge of
  aay Lake Superior bioaccumulative:
  substance of immediate concern shall be
  required to install and utilize the best
  technology in process and treatment as
  identified by the Director.
    4, Should the requirements of section
  IV.A.1, IV.A.2, or IV. A.3 of this appendix not
  preclude the significant lowering o~f water
  quality, the Director shall consider the social
  or economic developments associated with
  the action identified pursuant to section TTTTI
  of this appendix and the environmental
  effects of the significant lowering of water
  quality. Based on this analysis, the Director
  shall determine if the significant lowering of
  water quality should be proposed to be
  allowed.
    5. The Director may choose to defer the
  review in section IV.A.4 of this appendix
  until after the public is provided the
••  opportunity to comment, siibject to the
  conditions of section IV.B.2 of this appendix
   B. The tentative decision of the Director
  regarding the'extent to which water quality
  may be significantly lowered shall be subject
  to the public participation requirements of 40
  CFR part 25. To the extentthat the tentative
  decision is embodied in the conditions of an •
  NPDES permit, the public participation
  requirements may be satisfied by the public
  notice of the draft permit and fact sheet  •
  which discusses the antidegradation
  demonstration and decision regarding the
  significant lowering of water quality.
   1. If the Director's decision is based on the
  analysis in section IV.A.4 of this Appendix,
  then the public notice of the decision shall.
 define the extent of significant lowering of
 water quality tentatively determined by the
 Director to be allowable, and the factors
 coaslderedln reaching that decision. •
 .2. If the DLrector chooses to defer the
 review as provided in section IY.A.5 of this
 appendix, then the Director shall tentatively
 determine that the significant lowering of
 water quality is not allowable. The public

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21034
Federal Register / Vol. 58, No.  72 /  Friday,  April  16, 1993  /Proposed Rules
                                                                                "K Li, I1:,,,,111. "I1,,!,,1
notka shall state that a decision that is based
on • review of the social or economic
developments and environmental effects
associated •with the action, has been deferred,
ponding review of the comments received
from the public, and that the tentative
decision may subsequently be revised.

Appendix F to Part 132—Great Lakes
Water Quality Initiative
Implementation Procedures

[Note: For casa of reference, sections in this
appendix may be referred to by appending
the section designation lo the procedure
number. For example, section A.l of
procedure 1 may be referred to as procedure
i.A.1 of appendix F.]

Procedure 1: Site-specific Modifications to
Criteria/Values
  A. Requirements for Site-specific
Modifications to Criteria/Values. Criteria or
values may be modified on a site-specific
basis !o reflect local environmental
conditions as restricted by the following
provisions, Any such modifications must be:
protective of designated uses and aquatic life,
wikilifa and human health; and submitted to
EPA for approval/disapproval. In addition,
any site-specific modifications that result in
lits stringent criteria must be based on sound
scientific rationale.
  I, Aquatic Ufa. Aquatic life criteria or
values may be modified on a site-specific
basis to provide an additional level of
protection, pursuant to authority reserved to
the States and Tribes under Clean Water Act
section 510.
  I. Less stringent site-specific modifications
to chronic or acute aquatic life criteria or
values may be developed when:
  1. The local water quality parameters such
as pH, hardness, temperature, color, etc.,
alter tho biological availability and/or
toxidty of a pollutant; and/or
  ii. The sensitivity of the local aquatic
organisms (i.e., those that would live in the
water absent man-induced pollution) differs
significantly from the species actually tested
in developing tho criteria.
  Guidance oa developing site-specific
criteria in these instances is provided in
Chapter 4 of the U.S. EPA Water Quality
Standards Handbook.
  b. Lets stringent modifications also may be
developed to tha chronic aquatic life criteria
or values to reflect local physical and
hydrologicsl conditions.
  2. Wildlife. Wildlife criteria or values may
be modified on a site-specific basis to
provide an additional level of protection,
pursuant to authority reserved to the States
and Tribes under Clean Water Act section
S10. This may be accomplished through the
u$o of an additional uncertainty or other
documented factor in the equation for the
Wildlife Value.
  3, Bioaccumulation. Bicaccumulation
factors may be modified on a site-specific
basis to larger values than derived pursuant
to authority reserved to the States and Tribes
under Clean Water Act section 510.
Bioaccumulation factors shall be modified on
• tito-sptcific basis where reliable data
shows that local bipaccumulation is greater
than the system-wide value.
                           4. Human Health. Human health, criteria or
                         values may be modified on a site-specific
                         basis to provide an additional level of
                         protection, pursuant to authority reserved to
                         the States and Tribes under Clean Water Act
                         section 510. Human health criteria or values
                         shall be modified on a site-specific basis to
                          Erovide additional protection appropriate for
                          ighly exposed subpopulations.
                           B. Notification Requirements. When a State
                         proposes a site-specific modification to a
                         criterion or value as allowed in section A
                         above, the State shall notify the other Great
                         Lakes States of such a proposal and, for less
                         stringent criteria, supply appropriate
                         justification.
                           C. References. U.S. EPA. 1983. Water
                         Quality Standards Handbook. Chapter 4. U.S.
                         Environmental Protection Agency, Office of
                         Water Resource Center (RG-4100), 401 M
                         Street, SW., Washington, DC 20960.

                         Procedure 2: Variances from Water Quality   '
                         Standards for Point Sources
                          The Great Lakes States or Tribes may adopt
                         water quality standards (WQS) variance
                         procedures and may grant WQS variances for
                         point sources in compliance with such
                         procedures. Any adopted variance
                         procedures shall be at least as stringent as the
                         provisions in this Guidance.
                           A. Applicability. The Great Lakes States or
                         Tribes may grant a variance to a water quality
                         standard (WQS) which is the basis of a water
                         quality-based effluent limitation included in
                         an NPDES permit. A WQS variance applies
                         only to the permittee requesting the .variance
                         and only to the pollutant or pollutants
                         specified in the variance. A variance does not
                         affect, or require the Great Lakes States or '
                         Tribes to modify, the corresponding WQS for
                         the water body as a whole.
                           This provision shall not apply to new
                         dischargers or recommencing dischargers.
                           B. Maximum Timeframefor Variances. A
                         WQS variance shall not exceed three years.
                         Upon expiration of a variance, the WQS of
                         the water body will have full force and effect
                         on the permittee.      '
                           C. Conditions to Grant a Variance. A
                         variance may be granted if the permittee
                         demonstrates to the Great Lakes State or
                         Tribe that  attaining the WQS is not feasible
                         because:
                           1. Naturally occurring pollutant
                         concentrations prevent the attainment of the
                         WQS;
                           2. Natural, ephemeral, intermittent or low
                         flow conditions or water levels prevent the
                         attainment of the WQS, unless these
                         conditions may be compensated for by the
                         discharge of sufficient volume of effluent
                         discharges without violating State or Tribal
                         water conservation requirements to enable
                         WQS to be met;
                           3. Human-caused conditions or sources of
                         pollution prevent the attainment of the WQS
                         and cannot be remedied or would cause more
                         environmental damage to correct than to
                         leave in place;
                           4. Dams, diversions or other types of
                         hydrologic modifications preclude the
                         attainment of the WQS, and it is not feasible
                         to restore the water body to its original
                         condition or to operate such modification in
                         a way that would result in the attainment of
                         the WQS;                 ;
  5. Physical conditions.related to the
natural features of the water body, such as
the lack of a proper substrate cover, flow,
depth, pools, riffles, and the like, unrelated
to water quality, preclude attainment of
WQS; or             .
  6. Controls more stringent than those
required by sections 301(b) and 3Q6 of the
Clean Wa'er Act would result in substantial
and widespread economic and  social impact,
provided that the permittee also:
demonstrates that the variance  requested
conforms to the requirements of the State or
Tribe's antidegradation procedures; and
demonstrates the extent of any  increased risk
to human health and the environment
associated with compliance with the variance
compared with compliance with WQS absent
the variance, and the State or Tribe
concludes that any such increased risk is
consistent with the protection of the public
health, safety and welfare.         .
  A WQS variance may not be granted if  .
standards will be attained by implementing
effluent limits required under sections 301(b)
and 306 of the Clean Water Act and by the
permittee implementing cost-effective and
reasonable best management practices for '
nonpoint source control.
  D. Timeframe to Submit Application. The
permittee shall submit an application for a
variance no later than 60 days after the
regulatory authority reissues or modifies the
permit. The application shall include:
  1. All relevant information demonstrating
that attaining the WQS is not feasible based
on one or more of the conditions  in sections
C.1 through C.6 of this procedure; and
  2. A demonstration of compliance with the
general conditions in section C of this
procedure.
  E. Public Notice of Preliminary Decision.
Upon receipt of a complete application for a
variance, and upon making a preliminary
decision regarding the variance, the Great
Lakes State or Tribe shall issue a  public
notice of the request and preliminary
decision for public comment pursuant to the
regulatory authority's Administrative
Procedure Act and shall notify  the other
Great Lakes States and Tribes of the
preliminary decision.               .   •
  F. Final Decision on Variance Request. The
Great Lakes State or Tribe shall issue a final
decision on the variance request within 90"
days of the expiration of the public comment
period as required in section E  of this
procedure. If all or part of the variance is
approved by the State or Tribe, the decision
shall specify all permit conditions needed to
implement those parts of the variance so'
approved. Such permit conditions shall, at a
minimum, require:
  1. Compliance with an initial effluent
limitation which, at the time the  variance is
granted, represents the level currently
achievable by the permittee, but no less   •
stringent than that achieved under the
previous permit;
  2. That reasonable progress be made
toward attaining the water quality standards
for the water body as a whole through
appropriate conditions; and
  3. Compliance with the effluent limitation
in effect immediately prior to the granting of
the variance upon the expiration of said
' variance.         •

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                                               / Proposed Eules -
                                                                                                                         21S35
     The Great Lakes State or Tribe stall deny
 '•.  a requested variance if the permittee fails to
   make the demonstration required under
   section Cof this procedure.  :      .  v
     G. Incorporating State or Tribal Approved
   Variance into Permit. Tie NPDES pkmitting
   authority shall initiate a penhit modification
 -  to establish and:incorporate Into the
   permittee's NPDES permit all conditions
   needed to'implement the  variance as
   determined in section F,6f this procedure.  -
     H. Renewal of Variance. A variance may be
   renewed, subject So the requirements of
   sections A through G of this procedure,
   except that renewal application shall bo
   submitted no later thafi the required
 •  submission of a permit application !br a
•   NPDES permit, or 60 .days prior to tlie
   expiration of the variance, whichevsir occurs
.   earliest As part of any renewal application,
   the permittee shall again have the burden of
 .  demonstrating that attaining WQS is not
   feasible based on the requirements of section
   C of this procedure. The permittee's,,
   application shall also contain information
   concerning its compliance with the
   conditions incorporated into 'its penult as
   part of the variance pursuant to section G of
   this procedure. A variance shall not be
 • renewed if the permittee did not comply with
   the conditions of the variance.
     I. EPA Approval. Ail variances, including;
    •1. Relevant permittee applications
  .pursuant to section D of this procedure;
     2. Public comments and public hearing
   record pursuant to section E of this     ,
   procedure;
   ..3. Approvals pursuant to section F.of this
   procedure; and
    4. NPDES permits issued pursuant to
   section G of this procedure shall be  ,    '  "
   submitted by the State or Tribe to the
   appropriate EPA RegionaLoffice.
    Items requiredrby sections 1.1 through 3 of
   this procedure shall be submitted by me
  Great Lakes State or Tribe  within 30 days of
  the date of the final variance decision'. Items
  required by section 14 of this  procedure shall
  be submitted in accordance, with me State or
  Tribal Memorandum of Agreement with the
  Regional Administrator pursuant to 40 CHR
  123,24.                '   '
    EPA shall review the State or Tribe
  submittal for compliance with the CWA
  pursuant to 40 CFR 123.44, and 40 CFJR
.131.21.
   'I- WQSHeMsJons.AllvariaMesmustbe   '
 appended to the State or Tribal WQS rules.

 Procedure 3A: Total Maximum Daily Loads,
  Wasteload Allocations and Load Allocations
 for Point and Noapoiat Sources; (Option A)
   A. General Conditions of Application,The,
 following are conditions applicable to'  *
 establishing total maximum daily loads ., .~
 (TMDLs)'for all pollutants  and waters within
 the Great Lakes System subject to the
 exceptions included in 40 CFR 132<4.
    1. TMDLs Required. TMDLs shall, at a
 minimum, be established for each pollutant
 for which it is determined pursuant to
 procedure 5 of this appendix that there is a
 reasonable potential that a  discharge wM
 cause or contribute to an.exceedance of water
 quality standards, and in advance of issuance
 of any new or revised permit for the
  dischargo of such pollutant, unless it is
.  determined pursuant to these procedures that
  a TMDL is not needed.     •  .
  , 2. Load Reductions. TMDLs.shall also be
  prepared if the sum of existing point source
  aad nonpoint source (including natural
  background) loadings  exceeds the loading
  capacity minus any specified margin of safety
  for a substance. A TMDL must ensure
  attainment of allnumeric and narrative
  criteria and Tier fl values for a given
  pollutant TMDLs shall include WLAs&r
  point sources aad LAs for nonpoint sources
  such that then- sum is  not greater than the
  loading capacity minus the sum of any
  specified MOS and reserve capacity for
  future growth.
   3. WLA Values. Point sources must be
  regulated so as to ensure attainment of all
  downstream water quality standards. If
  separate TMDLs are prepared for the same
  pollutant in different segments of the same
  drainage basin, and the separate TMDLs each
  include WL As for one  or more of the same
  point sources, then WQBELS shall be
  consistent with the most stringent WLA in an
  EPA approved o^EPA established TMDL.
   4. Margin of Safety (MOS). Each TMDL
  shall include a MOS sufficient to account for
  uncertainties in establishing the TMDL and
,  describe the manner in which a MOS is
  provided. The MOS may be provided by
  leaving a portion of the loading capacity
 unallocated or by use of protective modeling
 assumptions to account for the uncertainties
' in deriving the TMDL.  If a separate allocation
 of loading capacity is set aside to provide a
 MOS, the amount of such allocation shall be
 described. If protective modeling
 assumptions are relied on to provide a MOS,
 the specific assumptions providing the MOS
 shall be identified.
   5. More Stringent Requirements. States may
 exercise authority reserved to them under
 section 510 of the Clean Water Act to develop
 more stringent TMDLs  (including WLAs and
 LAs) than are required  herein, providing that
 all LAs in suchTMDLs reflect actual
 nonpoint source loads or those loads that can
 reasonably he expected to occur within a
 reasonable time period as a result of       •
 implementing nonpoint source controls.:
   6. Accumulation in Sediments. TMDLs
shall be sufficiently stringent so as to prevent
accumulation of the pollutant of concern in
sediments to levels injurious to designated or
existing uses, human health, wildlife and
aquatic life. TMDLs shall consider
contributions to the water column from
sediments inside and outside of any
applicable mixing zones.
   7, Wei Weather Events. This guidance does
not provide specific procedures for wet
weather events. However, some of ihese
procedures may be deemed appropriate for
such purposes on a case-by-case basis,
   8. Background Concentrations of
Pollutants, The representative background
concentration of pollutants shall be
established in accordance with this
subsection to develop TMDLs and to
determine reasonable potential throughuse
of procedure S of this appendix Such
loadings may be accounted for in a TMDL
through an allocation to a single
"background" category, or through
  individual allocations to the various
  background sources,
 :• ."a..Requirements for Calculating  •"•' •
  Background. "Background'' represents all
  loadings that (1) Flow from upstream waters
  into the specified watershed, water body or- "
  water body segment fbr which a TMDL is''
  being developed, (2) enter the specified
  watershed, water body or water body
  , segment through atmospheric deposition or
  sediment release or resuspeasiori, or (3)
  occur within the watershed, water body or
  water body segment as a result of chemical
  reactions. Background concentrations shall  ;
  be determined on a case-by-case basis using
  acceptable .available data on the specified
 .watershed, water body or water body
  segment, or on similar water bodies, and bast
  professional judgement Available data shall
  include available ambient water column :
  measurements, caged fish tissue
  measurements, and pollutant loading data.
  When determining what available data are
  acceptable, best professional judgement
  should be used,-including consideration of
  the sampling locatipn and the reliability of
  the data through eomparisonio reported •
  analytical detection levels and quantification
  levels;                .   :
    b. Calculation Requirements. Except as
  provided below, the representative
  background concentration for a pollutant •-:.--•
  shall be established as the geometric mean of;
    i. Acceptable available water column data:
    ii. Water column concentrations estimated
  through use of acceptable available caged fish
  tissue data; or    :
    iii. Acceptable available mass loading data
  used to estimate water column levels.
    When more thaa one of the above three
  data sets exist, best professional judgement
  should be used to select .the  one data set most
  likely to accurately estimate background
  concentrations, in utilizing mass loading
  data, pollutant degradation and transport
 information raay be considered.
    In certain circumstjances, caged fish tissue
 data or ambient monitoring data may be used
 to estimate  ambient concentrations at a given
 upstream location, and data  on mass loadings
 upstream may be used to adjust that value to
 the background level entering the  water body
 or water body segment of concern.
   For the purpose of calculating the
 geometric mean, data reported as below the
 detection level shall be assumed to be one-
 half of the reported detection level; data
 reported as above the detection level but
 below the quantification level shall be
 assumed to  be the detection leys! plus one-
 half of the difference between the reported
 detection level and the reported
 quantification levei When all of the
 acceptable available data in a data set ojr
 category such as water column, caged fish
 tissue or mass loading data, are below the
 level of detection for a pollutant, then all tha
• data for that pollutant in that data set shall
 be assumed to be  zero,
   9. TMDL Allocations. Nonpomt source load
 allocations shall be based on: a. existing
 loading rates if changes in loading rates are
 not anticipated; b. anticipated increased
 loading rates; or c. anticipated lower loading
 rate if such lower loading rate is technically
 reasonable and anticipated to occur within a

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21036
Federal  Register / Vol.  58, No. 72 / Friday, April 16,  1993 / Proposed Rules
reasonable tima period as a result of
implementation of best management
practices or other load reduction measures.
la determining whether any expected load
reduction? aro technically reasonable and
will occur within a reasonable period of time,
technical and institutional factors should be
considered. These decisions are case-specific
and should reflect the particular TMDL
under consideration. The portion of the
loading capacity not assigned to nonpoint
sources, or to a MOS, or reserved for future
growth is allocated to point sources. Upon
reissuenee, NPDES permits for these point
sources must Include limitations consistent
with tha WLAs in EPA approved or EPA
established TMDLs.
  10. Effluent Flow. If WLAs are expressed as
concentrations of pollutants, the TMDL shall
also indicate the point source effluent flows
assumed in the analyses. Mass loading
limitations established in NPDES permits
must bo consistent with both the WLA and
assumed effluent flows used in establishing
tha TMDL.
  11. New Source or Discharger. TMDLs may
include reserved allocations of loading
capacity to accommodate future growth and
additional sources. Where such reserved
allocations are not included in a TMDL, a
new or expanded discharge cannot be
permitted unless the TMDL is revised in
accordance with these procedures to include
• WLA for the new or expanded discharge.
  B, Misting Zones for Bsoaccumulative
Chemicals of Concern (BCCs).
Notwithstanding any other provision in these
ruin, tho following requirements (or any
more stringent requirement established in
accordp.net) with section 510 of the Clean
Water Act) shall be applied in TMDLs for
BCCs:
  I. Up until {insert 10 years from the
effective date of tha final rule], mixing zones
for BCCs may be allowed for existing
dischargers pursuant to the procedures
specified in sections C and D of this
procedure. However, for implementation of
numeric or narrative criteria and values
(Including, but not limited to HCC, HCV,
HNV, HNC, wildlife criteria and values, and
chronic aquatic criteria and values),
Individual WLAs for discharges to the open
waters of tha Great Lakes shall assume no
greater dilution than one part effluent to ten
parts receiving water.
  2. No later man [insert 10 years from the
effective data of ths final rule], there shall be
no mixing zones available) to existing
dischargers for BCCs. Accordingly, the WLAs
for existing dischargers shall be such as are
Decenary to attain water quality standards
for BCCs at tha point of discharge. Thus, they
shall bo set (1) equal to the most stringent
water quality criteria or values for the BCCs
in question, or (2) at a more stringent level
than the most stringent water quality criteria
or values if necessary due to background
concentrations to meet such criteria and
values at the point of discharge. Permits
Isfuod within five years prior to [insert 10
years from tha effective date of the final rule]
must include a more stringent set of
limitation* applicable on [insert 10years
from tha effective data of the final rulei if
necessary to implement this requirement
                           3. Beginning on the effective date of these
                         procedures, there shall be no mixing zones
                         for BCCs available to new dischargers or new
                         sources. Accordingly, the WLAs for new
                         dischargers shall be such as are necessary to
                         attain water quality standards for BCCs at the
                         point of discharge. Thus, they shall be set (1)
                         equal to the most stringent water quality
                         criteria or values for the BCCs in question, or
                         (2) at a more stringent level than the most
                         stringent water quality criteria or values if
                         necessary due to background concentrations
                         to meet such criteria and values at the point
                         of discharge.
                           4. States may grant mixing zones beyond
                         the dates specified in paragraphs 2 and 3 of
                         this section, where it can be demonstrated on
                         a case-by-case basis that failure to grant a
                         mixing zone would preclude water
                         conservation measures that would lead to
                         overall load reductions in BCCs, even though
                         higher concentrations of BCCs occur in the
                         effluent. Such mixing zones must also be
                         consistent with sections C and D of this
                         procedure.
                           C. Deriving TMDLs for Discharges to Lakes.
                         This section addresses conditions for
                         deriving TMDLs for Open Waters of the Great
                         Lakes (OWGL), inland lakes and other waters
                         of the Great Lakes System with no
                         appreciable flow relative to their volumes.
                           1. Individual point source WLAs shall
                         assume no greater dilution than one part
                         effluent to 10 parts receiving water
                         (containing background levels of pollutants)
                         for implementation of numeric or narrative
                         chronic criteria and values (including, but
                         not limited to Tier I and Tier II HNVs, HCVs
                         and chronic aquatic life and wildlife criteria
                         and values), unless; subject to restrictions for
                         BCCs in section B of this procedure, an
                         alternative mixing zone is demonstrated as
                         appropriate in a mixing zone study
                         conducted pursuant to subsection 3 of this
                         section.
                           2. Appropriate mixing zone assumptions to
                         be used in calculating load allocations for
                         nonpoint sources shall be determined,
                         consistent with applicable State
                         requirements, on a case-by-case basis by the
                         authority establishing the TMDL.
                           3. Data generated by mixing zone studies
                         conducted by any interested party shall be
                         used to establish allocations when, in the
                         best professional judgement of the authority
                         establishing the TMDL, it is determined that
                         the mixing zone study demonstrates that a
                         dilution allowance other than those specified
                         in or established pursuant to sections C.I and
                         C.2 of this procedure is appropriate for the
                         protection of designated and existing uses,
                         and implementation of numeric and narrative
                         criteria and values. Mixing zone studies shall
                         address factors identified by the authority
                         establishing the TMDL, including, but not
                         limited to, density or temperature
                         stratification of the water body, dispersion of
                         the effluent discharge relative to situations
                         such as the location of a water supply intake
                         and critical biological habitat areas.
                           4. In cases where background
                         concentrations exceed criteria or values,
                         WLAs shall be set equal to zero or a multiple
                         source TMDL shall be established that  '
                         ensures attainment of criteria or values and
                         control of BCCs pursuant to section B of this
                         procedure. •                    <
  5. A separate check is made to assure that
the final WLAs provide, for attainment of
acute aquatic life criteria and values at the
boundary of any acute mixing zone allowed
under State law.
  D. The Tributary Basin Mass Balance
TMDL Approach. The basin approach to
developing TMDLs addresses all known
sources of a pollutant in a drainage basin in
a single analysis. Where it is either not
required or not feasible to develop a basin-
wide TMDL, the regulatory authority shall
develop a TMDL for a smaller geographic
unit as necessary. The TMDL analysis shall
be undertaken pursuant to the following
steps:
  1.  Calculation of the Tributary Basin
Loading Capacity. The loading capacity is
initially calculated at the furthest   •
downstream location in the drainage basin.,
The maximum allowable loading consistent
with the attainment of each numeric criterion
or value for a given pollutant is determined
by multiplying the criterion or value by the
flow at the furthest downstream location in
the tributary basin at the design flow
condition below:
  a. Harmonic mean flow for human health
criteria or values.        ,-..'•
  b.  30-day, five-year low flow for wildlife
criteria or values.     .    .
  c. 7-day, 10-year low flow or 4-day, 3-year
biologically-based low flow for chronic
aquatic life criteria or values.       - ...
  The lowest load is then selected as the
loading capacity.                         (
  2.  Inventory of Baseline Pollutant Loads.
An inventory of pollutant loadings (including
natural background) from all known sources
in the tributary basin shall be constructed.
  a. The inventory for point sources uses a
pollutant loading baseline which should, as
appropriate, be derived from:
  i. The permit limit(s) of sources
discharging the pollutant of concern. The
limits may be technology-based limits, water
quality-based limits, or a combination of  ,
both. Actual effluent flow rates are used to
convert concentration-based permit limits to
an estimate of mass of pollutants discharged
overtime.
  ii. The level of treatment currently required
or required pursuant to  an enforceable
schedule of compliance. In appropriate
circumstances this could be BAT limits for
industrial  discharges or secondary treatment
limits for POTWs.
  iii. Actual loadings of a pollutant from a
facility when, for example, a limitation for
the pollutant is not included in the facility's .
permit.            .              '•!"""'
  b. The inventory of nonpoint source
pollutant loadings includes contributions
from urban runoff, agricultural runoff,
groundwater contributions (including
groundwater contaminated by leaching from
landfill or industrial waste disposal sites),
atmospheric deposition and resuspension/
resolution from contaminated sediment.
Measured  loading rates  shall be used, when
available, or best estimates calculated.
Estimates should be based on loadings
expected after implementation of nonpoint .
source controls expected to occur within a
reasonable time period.    ,   ,
   3. Environmental Fate. The inventory of
baseline loadings conducted in sections D.2

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                   Federal Register 7  Vol. 58, No. 72  /Friday, April 16,  1993 /Proposed Rules
                                  31037
 and D.7 of this procedure and the site-
 specific cross checks in sections D..8 and D.9
 of this procedure shall be based on the.,
 assumption that a pollutant does not degrade.
 If, however, each of the following conditions -.
 are met, the regulatory authority may take
 into account degradation of a pollutant:
   a. Scientifically valid field studies or other
 relevant information demonstrate that
 degradation of the pollutant will occur under
 the full range of .environmental conditions
 expected to be encountered; and
   b. The field studies and other relevant
 information address other factors that affect  "
 the level of pollutants in the water column
 including, but not limited to, resuspension of
 sediments, chemical speciation, and
 biological and chemical transformation.
   4. Establish the Basin Margin of Safety
 (MOS). The basin margin of safety maybe
 represented as a portion of the loading
 capacity whiclrmust remain unallocated to
 account for the uncertainties in deriving the
 TMDL. Identification of a MOS should reflect
, consideration of the baseline loading chosen
 to develop the inventory (e.g., permitted
 versus actual loads, estimated versus
 measured nonpoint loads) as well as
 uncertainties in calculating loading capacity.
 For example, the MOS may vary depending
 on the degree of uncertainty associated with
 predicted nonpoint source loadings. The
 basin MOS will be unique and specific for
 each tributary basin depending on the degree
 of uncertainty.  .
   5. Compare Allowable Loading with
 Baseline Loading. Compare the difference of
 the loading.capacity calculated in section D.I
 of this procedure minus any specified MOS
. calculated in section D.4 of this procedure to
 the inventory baseline load calculated in
 section D.2 of this procedure from all sources
 for the pollutant of concern. If the baseline
 load is greater than the difference of the    -
 loading capacity minus any specified MOS,  ,
 then the tributary basin is water quality- ~
 limited'and a TMDL must be developed. If
 the baseline load is less than the difference
 of the loading capacity minus any specified
 •MOS, the basin is not water quality-limited
 and a TMDL for the entire basin is not
 necessary; Whether or not a TMDL for the
 entire basin is required, a mass balance cross
 check, as described in sections D.8 and D.9
 of this procedure shall be conducted in the
 vicinity of each source to determine if a
 TMDL for a segment of the basin is necessary.
   6. Identify Load Reductions Subject to
 Allocation. For a water quality-limited basin,
 the portion of the pollutant load which must
 .be reduced to meet water quality standards
 shall be equal to the baseline load'minus the
 loading capacity adjusted by the MOS. This
 represents the load reduction which must be
, achieved through new or revised load and/
 or wasteload allocations in order to meet
 water quality standards at the downstream
 terminus of the'basin. Additional reductions
 may be necessary as determjned.,in sections
 D.8 and D.9 of this procedure to ensure
 attainment of water quality standards
 throughout the basin.       ' \\  .-.'.-.
   '7. Conduct Allocation. The WLAs and LAs
 shall be established by a reasonable process
 for the particular basin under investigation.
 Examples of allocation methods include but.
 are not limited to;'.,..      .     ....'    .
   a. Reduction of all sources proportional'to
 then-current share of the baseline load.  ,
   b. Equal percent reduction.              '
   c. Equal effluent concentrations.   ,
   d. Most efficient reductions by selected
 sources.
   In no event shall a load allocation be set
 .at a level which reflects an unreasonable
 expectation of load reductions that will be
 .attained by a nonpoint source within a
 reasonable time period.                  .
   8. Mass Balance Site-specific Chronic
, Allocation Cross-check. The basin approach
 to the TMDL/allocation analysis initially
 focuses on attainment of water quality
 standards at the selected downstream
 location. It must also be determined whether
 standards will be met at all locations within
 the basin.
   At each individual point source location, a
 site-specific cross-check shall be performed
 that generates a WLA for the source that is
 necessary to implement all water quality
 standards for protection from chronic effects
 at that location. Such cross-checks take into
 .consideration background concentrations
 immediately upstream of the point source,
 any applicable State mixing zone policies
 and a margin of safety to account for
 uncertainties. .
   Permittees may be required to conduct
 mixing zone demonstrations in accordance
 with directives of the authority establishing
 the TMDL where the authority determines
 that such a demonstration is necessary to
 adequately conduct the basin TMDL analysis
 or to evaluate chronic toxicity conditions at
 the edge of any applicable mixing zone.
   A site specific chronic cross-check is also
 conducted with respect.to nonpoint source
 loadings, and may indicate that reduced
 loadings are necessary in the vicinity of the
 nonpoint source to attain water quality
 standards there. It may be appropriate to
 reduce the LA for the nonpoint source to
 reflect the requisite load reduction if it can
' reasonably be expected that such a load
 reduction will hi fact be achieved within a
 reasonable time period. Otherwise, it maybe
 necessary to reduce the WLAs of upstream
 point sources in order to ensure that water
 quality standards are attained in the vicinity
 of the nonpoint source. If either the LA for
 a nonpoint source or the WLAs for upstream
 point sources ate reduced for this purpose, it
 is possible that .the allocations for some
 sources'downstream in the tributary could be
 increased hi the final TMDL from those,
 initially calculated in the basin analysis,
 depending on site-specific considerations
 including individual acute and chronic cross-
 checks.
   9. Acute Criteria Cross-check. A separate
 check shall be made to assure that acute
 aquatic life criteria and values are met at the
 boundary of any applicable acute criteria
 mixing zone allowed under State law. If
 mixing zones from two or more proximate
 sources interact or overlap, the combined
 •effect will be evaluated to determine if '
 criteria and values will be met at the edge of
 any applicable acute criteria mixing zones.
   The acute criteria cross-check shall
 include, but not be limited to, consideration
 of:: (1) The expected dilution under all     ...
 effluent flow and concentration conditions at
idesign stream flow,-(2) maintenance of a zone
of passage for aquatic organisms and (3)
protection of'critical aquatic habitat.
  A permittee may be required to conduct an
acute criteria mixing zone demonstration in
accordance with the directives of the
authority establishing the TMDL where the
authority determines that such a
demonstration is necessary to adequately
conduct the basin TMDL/allocation analysis
or is necessary to evaluate acute toxicity
conditions at the edge of the acute criteria
mixing zone. ;             .
  10. Determine the WLA. The more stringent
of the basin WLA, the site-specific chronic
WLA or site-specific acute WLA'is typically
applied as a WQBEL in the source's NPDES,
permit. However, where a more stringent
WLA is established as a result bf a site-
specific cross check than was initially
calculated using the basin-wide analysis,
revision of other WLAs or LAs initially
calculated under the basin approach may be
appropriate to reflect the additional
unallocated basin loading, depending on site-
specific considerations, including other   , .
individual acute and chronic cross checks.
  11. TMDL Validation. Where available,
ambient monitoring and other relevant data
should be evaluated to assess the accuracy of
the mass balance basin approach.
Comparison bf measured versus  calculated
ambient concentrations (calculated from the
load inventory at the furthest downstream
location) can serve as a check on the
accuracy of the TMDL." Such analyses could  •
demonstrate that a full-scale kinetic model
may be useful in developing a TMDL for the
basin.       ,   •
Procedure 3B: Total Maximum Daily Loads,
Wasteload Allocations and Load Allocations
for Point and Nonpoint Sources; (Option B)"
  A. General.Conditions of Application. The
following are conditions applicable to
establishing total maximum daily loads
(TMDLs) for all pollutants and waters within
the'Great Lakes System subject to the
exceptions included in 40 CFR 132.4.
  1. TMDLs Required. TMDLs shall, at a
minimum, be established for each pollutant
for which it is determined pursuant to
procedure 5 of this appendix that there is a
reasonable potential that a'discharge will
cause or contribute to an exceedance of water
quality standards, and in advance of issuance
of any new or revised permit for the
discharge of such pollutant, unless it is
determined pursuant to these procedures that
a TMDL is not needed.
  2. Load Reductions. TMDLs shall also be
prepared if the sum of existing point source
and nonpoint source (including natural
background) loadings exceeds the loading
capacity minus any specified margin of safety
for a substance. A TMDL must ensure
attainment of all numeric and narrative
criteria and Tier n values for a given
pollutant. TMDLs shall include WLAs for
point sources and LAs, for nonpoint sources
such that their sum is not greater than the
loading capacity minus the sum  of any
specified MOS and reserve capacity for
future growth.
  3. WLA Values. Point sources must be
regulated so as to ensure attainment of all .

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Federal Register / Vol.  58, No. 72 / Friday, April 16, 1993  / Proposed Rules
downstream water quality standards. If
separate TMDLs are prepared for the same
pollutant In different segments of the same
drainage basin, and the separate TMDLs each
include WLAs for one or more of the same
point sources, then WQBELS shall be
consistent with the most stringent WLA in an
EPA approved or EPA established TMDL.
  4. Momn of Safety (MOS). Each TMDL
shall include a MOS sufficient to account for
uncertainties in establishing the TMDL and
describe the manner in which a MOS is
provided. The MOS may bo provided by
waving a portion of the loading capacity
unallocated or by use of protective modeling
assumpUo&s to account for the uncertainties
in deriving the TMDL If a separate allocation
of loading capacity is set aside to provide a
MOS, the amount of such allocation shall be
described. If protective modeling
assumptions are relied on to provide a MOS,
the specific assumptions providing the MOS
•hull bo identified.
  S. Mora Stringent Requirements. States may
exercise authority reserved to them under
section 510 of the Gean Water Act to develop
more stringent TMDLs (including WLAs and
LAs) than are required heroin, providing that
all LAs in such TMDLs reflect actual
nonpcirit source loads or those loads that can
reasonably be expected to occur within a
msotuiblt- time period as a result of  ,
implementing conpoint source controls.
  6. Accumulation in Sediments. TMDLs
shall be sufficiently stringent so as to prevent
accumulation of the pollutant of concern in
sediments to levels injurious to designated or
existing uses, human health, wildlife and
aquatic Ufa. TMDLs shall consider
contributions to the water column from
sediment! inside and outside of any
applicable mixing zones.
  7. Wat Weather Events. This guidance does
not provide specific procedures for wet
weather events. However, some of these
procedures maybe deemed appropriate for
such purposes on a caso-by-caso basis.
  8. Background Concentrations of
Pollutants,  The representative background
concentration cf pollutants shall be
established in accordance with this
subsection to develop TMDLs and to
determine reasonable potential through use
of procedure 8 of this appendix. Such
loadings may be accounted for in a TMDL
through an allocation to a single
"background" category, or through
indlviduil allocations to the various
bsclgrijund sources.
  a. Requirements for Calculating
Background "Background" represents all
losding* that: (1) Flow from upstream waters,
into the specified watershed, water body or
wa'.or body seipnent for which a TMDL is
being developed, (2) enter the specified
watershed, water body or water body
segment through atmospheric deposition or
sediment roloasa or re suspension, or (3)
occur within the watershed, water body or
water body segment as a result of chemical
reactions. Background concentrations shall
be determined on a case-by-case basis using
acceptable available data on the specified
watershed, water body or water body
segment, or on similar water bodies, and best
professional judgement. Available data shall
                         include available ambient water column
                         measurements, caged fish tissue
                         measurements, and pollutant loading data.
                         When determining what available data are
                         acceptable, best professional judgement
                         should be used, including consideration of
                         the sampling location and the reliability of
                         the data through comparison to reported
                         analytical detection levels and quantification
                         levels. ......................................... ' ........ , ............................. .
                           b. Calculation Requirements. Except as
                         provided below, the representative
                         background concentration for a pollutant
                         shall be established as the geometric mean of:
                           i. Acceptable available water column data;
                           ii. Water column concentrations estimated
                         through use of acceptable available caged fish
                         tissue data; or
                           iii. Acceptable available mass loading data
                         used to estimate water column levels.
                           When more than one of the above three
                         data sets exist, best professional judgement
                        ^.....
                        likely to accurately estimate background
                        concentrations. In utilizing mass loading
                        data, pollutant degradation and transport
                        information may be considered.
                           In certain circumstances, caged fish tissue
                        data or ambient monitoring data may be used
                        to estimate ambient concentrations at a given
                        upstream location, and data on mass loadings
                        upstream may be used to adjust that value to
                        the background level entering the water body
                        or water body segment of concern.
                           For the purpose of calculating the
                        geometric mean, data reported as below the
                        detection level shall be assumed to be one-
                        half of the reported detection level; data
                        reported as above the detection level but
                        below the quantification level shall be
                        assumed to be the detection level plus one-
                        half of the difference between the reported
                        detection level and the reported
                        quantification level. When all of the
                        acceptable available data in a data set or
                        category such as water column, caged fish
                        tissue or mass loading data, are below the
                        level of detection for a pollutant, then all the
                        data for that pollutant in that data set shall
                        be assumed to be zero.
                           9. TMDL Allocations. Nonpoint source load
                        allocations shall be based on: a. existing
                        loading rates if changes in loading rates are
                        not anticipated; b. anticipated increased
                        loading rates; or c. anticipated lower loading
                        rate if such lower loading rate is technically
                        reasonably and anticipated to occur within a
                        reasonable time period as a result of
                        implementation of best management
                        practices or other load reduction measures.
                        In determining whether any expected load
                        reductions are technically reasonable and
                        will occur within a reasonable period of time,
                        technical and institutional factors should be
                        considered. These decisions are case-specific
                        and should reflect the .particular TMDL
                        under consideration. The portion of the
                        loading capacity not assigned to nonpoint
                        sources, or to a MOS, or reserved for future
                        growth is allocated to point sources. Upon
                        reissuance, NPDES permits for these point
                        sources must include limitations consistent
                        with the WLAs in EPA approved or EPA
                        established TMDLs.
                           10. Effluent Flow. If WLAs are expressed as
                        concentrations of pollutants, the TMDL shall
 also indicate the point source effluent flows.
 assumed in the analysis. Mass loading
 limitations established hi NPDES permits
 must be consistent with both the WLA and
 assumed effluent flows used in establishing
 the TMDL.
   11. New Source or Discharger. TMDLs may
 include reserved allocations of loading
 capacity to accommodate future growth and
 additional sources. Where such reserved
 allocations are not included in a TMDL, a
 new or expanded discharge cannot be
 permitted unless the TMDL is revised in
 accordance with these procedures to include
 a WLA for the new or expanded discharge.'
   B. Mixing Zones for Bioaccum ulatiys
 Chemicals of Concern (BCCs).
 Notwithstanding any other provision in these
 rules, the following requirements (or any
 more stringent requirement established in
 accordance with section 510 of the Clean
 Water Act) shall be applied in TMDLs for
 BCCs:  .   ' ,  .   -,..'''.....-.   ',
   il Up until [insert 10 years from the
 effective date of the final rule], mixing zones
 for BCCs may be allowed for existing
 dischargers pursuant to the procedures
 specified in sections C and Dof this
 procedure. However, for Implementation of
 numeric or narrative criteria and values
 including, but not limited to HOC, HCV, .
 HNV, HNC, wildlife criteria and values, and
 chronic aquatic life criteria and values,
 individual WLAs for discharges to open
 waters of the Great Lakes shall assume no
 greater dilution than one part effluent to ten
 parts receiving water, and for discharges to
 Great Lakes System tributaries shall assume
 no greater  dilution than that allowed under
 section D.3.c.iii of this procedure.
   2. No later than [insert 10 years from the
 effective date of the final rule], there shall  be
 no mixing zones available to existing
 dischargers for BCCs.  Accordingly, the WLAs
 for existing dischargers shall be such as are
 necessary to attain water quality standards
 for BCCs at the point of discharge. Thus, they
 shall be set (1) equal to the most stringent
 water quality criteria or values for the BCCs
 in question, or (2) at a more stringent level
 than the most stringent water quality criteria
 or values if necessary due to background
 concentrations to meet such criteria and
 values at the point of  discharge. Permits
 issued within five years prior to [insert 10
 years from the effective date of the final rule]
 must include a more stringent set of
 limitations applicable on [insert 10 years
 from the effective date of the final rule] if
 necessary to implement this requirement.
   3. Beginning on [insert the effective date of
 the final rule], there shall be no mixing zones
 for BCCs available to new dischargers or new
 sources. Accordingly, the WLAs for new
 dischargers shall  be such as are necessary  to
 attain water quality standards for BCCs at  the
 point of discharge. Thus, they shall be set  (1)
 equal to the most stringent water quality
 criteria or values  for the BCCs in question, or
• (2) at a more stringent level than the most
 stringent water quality criteria or values if
 necessary due to background concentrations
 to meet such criteria and values at the point
 of discharge.
   4. States may grant  mixing zones beyond
 the dates specified in paragraphs 2 and 3 of

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                   -Federal Register / Vol. 58,  No.  72  /  Friday, April  16, 1993  /  Proposed Rules
                                                                                          21039
  this section, where it can be demonstrated on
  a case-by-case basis that failure to grant a
  mixing zone would preclude water
  conservation measures that woultJlead to
  overall load reductions in BCCs, even though
  higher concentrations of BCCs occur in the
  efflueat. Such mixing zones must also be
 c consistent with sections C and D of this   .
 'procedure.    '.-..-
   C. Deriving TMDLs for Discharges to Lakes.
 .This section addresses conditions for
  deriving TMDLs for Open Waters of the. Great
              Lakes (QWGL), inland lakes and other waters
              of the Great Lakes System with no
              appreciable flow relative to their volumes.
                1. Individual point source WLAs shall
              assume no greater dilution than one part
              effluent to 10 parts receiving water
              (containing background levels of pollutants)
              for implementation of numeric or narrative
              chronic criteria and values (including, but
              not limited to Tier I and Tier EHNVs, HCVs,
              chronic aquatic life, and wildlife criteria and
              values), unless, subject to restrictions for
 BCCs in section B of this procedure, an
 alternative mixing zone is demonstrated as
 appropriate in a mixing zone study
 conducted pursuant to section E of this   .
 procedure.             -  •
 .  a. Implementing Numeric Criteria and
, Values. Unless an alternative mixing zone is
 approved, WLAs based upon protection of
 aquatic life, wildlife and human health from
 chronic effects shall not exceed:
                                          WLA < 1 l(criterion) - IQ(background)
 Where:
   Criterion = a numeric criterion or value
     designed to protect aquatic life, wildlife
     criterion or value, and/or human health
     from chronic adverse effects (including,
     but not limited to a Tier I or Tier IIHNV,
     HCV, chronic aquatic life criterion or
     value, or a wildlife criterion or value
     derived pursuant to this Guidance)
     specified in units of mass per unit of
     volume;                 -.   '.-.'.'
   Background = background concentration
    , determined pursuant to section A.8 of
     this procedure; specified.in units of mass
     per unit of volume; and
   A demonstration for a smaller or larger
 mixing zone may be provided, approved and
 implemented in accordance with section E of
 this procedure. In no case shall the
 1 permitting authority grant a mixing zone
 based on a mixing zone  demonstration which
 exceeds" the area where discharge-induced
 mixing occurs.
   2. Appropriate dilution assumptions to be~~
 used in calculating load allocations for .
 npnpoint sources shall be determined,"
 consistent with applicable State
 requirements, oh a case-by-case basis by the
 authority establishing the TMDL.
   3. In cases where background
 concentrations.exceed numeric or narrative
 criteria or values, the WLA shall be set to
 zero or a multiple source TMDL shall be
 established that ensures attainment of criteria
 or values and control of BCCs pursuant to
 section B of this procedure.
   4. WLAs based on acute aquatic life criteria
 or values shall not exceed the Final Acute
 Value.
'  5. The final TMDL shall include the most
 stringent of the WLAs derived pursuant to
 sections C.I, 3 and 4 of this procedure.
 .  p. Deriving TMDLs and WLAs/LAsfor
 Discharges toGreatLakesSystem Tributaries.
 This section applies to tributaries and
              connecting channels of the Great Lakes that
              exhibit appreciable flows relative ,to their
              volumes,  . ;      ..  '           .    .
                1. Stream design flow. The appropriate
              stream design flow used in TMDL ~
              development shall be:                ••••••
                a. Either the 7-day, 10-year low flow
              (7Q10) or the-4-day, 3-year.biologically-based
              design flow for chronic aquatic life criteria or
              values;         ....         •-'...
               . b. The harmonic mean flow for human
              health criteria or values; and
                c. The 30-day, 5-year low flow (30Q5) for
              wildlife criteria or values.
                2. Tributary Basin. When a TMDL is
              established for a tributary basin or watershed
              within a tributary basin:
                a. An adequate MOS shall be identified in
              the TMDL and shall include but may not be
              necessarily limited to the unused capacity
              provided by not utilizing more than the
              allowable dilution flow defined in section
              D.3.C.U of this procedure;      "
                b. When available information indicates
              that a mixing zone for a point source extends
              in an OWGL'or CCGL, the WLA is,        :
              determined using the more stringent dilution
              allowance provided in either section C.I or
              D,3.c of this procedure;
                c. WLAs shall not exceed the FAV to
              ensure protection of aquatic life'from acute
              effects;
                d. The WLA for a particular point source
              shall be the more stringent of either:
                i. The portion of the loading capacity for
              the basin or. portion thereof, which is not
              allocated to.LAs, MOS, reserve capacity (if
              any) and WLAa-for other point source
              dischargers; or
                ii. The WLA developed using the       '
             -procedures in section D.3 of this procedure.
                e. Tributary basin TMDLs shall be based on
              the assumption that a pollutant does not
              degrade. If, however, each of the following
              conditions are met, the regulatory authority
 may take into account degradation of a
"pollutant:          "-.-'
   i. Scientifically valid field studies or other
 relevant information demonstrate that
, degradation of the pollutant will occur under
 the full range of environmental conditions
 expected to be encountered; and  ;
   ii. The field studies and other relevant
 information address other factors that affect
 the level of pollutants in the water column  •
 including, but not limited to, resuspension of
 sediments,chemicalspeciation,and,  •
 biological and chemical,transformation,
   3. Source Specific TMDLs. Source specific-
 TMDLs shall be calculated in accordance  ,
 with this section. The procedures in this
 section are applicable only when background
 concentrations (see section A.8 of this
 procedure) at the source location prior to the
 addition-of discharge pollutants do not
 exceed criteria and values. In other
 situations, the regulatory authority shall
 develop a TMDL in accordance with section
 D. 2 of this procedure.   ,
   a. An adequate MOS shall be identified in
 the TMDL and shall include unused capacity
 provided by' not utilizing more than the
 allowable dilution flow determined in
 section D.3.c.ii of this procedure..
   b. Where there is information that a mixing
 zone for a point source discharge extends
 from a tributary into ah OWGL or a
•connecting channel, the WLA for that point
 source discharge shall be determined by
 applying the procedures in section C.1 of this
 procedure or section D.3.C of this procedure,
whichever is more stringent.
   c. Existing Sources. TMDLs based upon   -.
chronic aquatic life, wildlife and human
 health criteria or values shall be developed
 in accordance with the following
requirements:'              •
                      WLA<
< (criterion)[Qad +(l-f)(effluent flow)]-(backgix>und)Qad  ,
                                                          effluent flow
                                                                       (X).
 Where:    . v  -

   (Jritenon = a numeric criterion or
     "value, designed to protect aquatic
    . life, wildlife, and/or hum.ait health
     from, chronic adverse effects
                  (including, but not limited to, a Tier
                  I or Tier H HNV, HCV, chronic
                  aquatic life criterion or value, or a
                  wildlife criterion or value derived .
                  pursuant to this procedure)
     specified in units of mass per unit
     of volume.    .         •  ...:'.

    ad = allowable dilution flow as
     calculated in section D.3.c.ii of this
    :procedure,                  -

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21040
Federal Register / Vol. 58, No.  72 /  Friday,  April  16, 1993  /  Proposed Rules
   f M fraction of the source flow that is
     withdrawn from the receiving
     water,
   Effluent flow « flow rate of the
     discharger specified in units of
     volume per time,
   Background ** background
     concentration at the discharge
     location calculated pursuant to
     section A,8 and specified in units of  procedure.
                             mass per unit of volume,
                           X = a conversion factor which
                             converts units of mass per unit
                             volume to units of mass per unit
                             time.
                           ii. The allowable dilution flow [QaJ will be
                         _        __     1 * * t    il   1     J  •       V*-*J KAOtHO* M4.CL4A «4VfU Uklk -J.UtJt> IH.IU-H. WWV| I.UU
                         determined by mulbplytag the stream design   ^^ fraction ^ be no ffeater than the
                         flow by the dilution fraction specified in              «,« fcllnwina «nna«nm
                         either section D.3.c.iii or section E.3 of this
  iii. Unless an alternative mixing zone is
allowed consistent with section E, the
dilution fraction is based upon the ratio of
the 7Q10 to the effluent flow. If the ratio is:
  (a) less than or equal to 250, the dilution
fraction shall be no greater than 0.25;
  (b) greater than 250 but less than 300, the
result of the following equation:
                                  _,   .    "•••    ;'••:•:    103-0^1(7Q16/Source Flow)
                                  Dilution fraction =	—
   (c) is equal to or greater than 300, the
 dilution fraction shall be no greater than 0,1.
   d, New Sources. WLAs based upon chronic
 aquatic Ufa, wildlife and human health
 criteria or values shall equal the criteria or
 value*, unless a mixing study is provided,
 approved, and implemented in accordance
 with soction E of this procedure. In no case
 shall • demonstration result in a mixing zone
 •which provides greater dilution than is
 provided by section D.3.c.ii of this
 procedure,
   e. Existing and Mew Sources. WLAs based
 on aculo aquatic lifo criteria or values for
 both existing and new sources shall not
 exceed the Final Acute Value.
   f. The final WLA  for an existing point
 source is tha most stringent value calculated
 under paragraphs c and  e. The final WLA for
*« new point source  Is the most stringent
 value  calculated under sections D.3.d and
 D.3.e of this procedure.
   B. Mixing Zone Demonstration
 Requirements. 1. A  mixing zone
 demonstration must:
   i. Describe the degree of dilution occurring
 at the boundaries of the  proposed mixing
 zone and the size, shape, and location of the
 urea of mixing, including the manner in
 which diffusion and dispersion occur;
   b. Define the location  at which discharge-
 induced mixing ceases for sources to the
 open waters of the Great Lakes;
   c. Document the substrate character and
 gsomorphology within the mixing zone;
   d. Show that the mixing zone does not
 in!«fo:a with or block passage offish or
 aquatic lifo;
   e. Show that the mixing zone does not
 extend to drinking water intakes;
   f. Show that the mixing zone would not
 otherwise interfere  with the designated uses
 of the receiving water or downstream waters;
 and
   g. Document background water quality
 concentrations.
   2. la addition, the mixing zone
 demonstration shall address the following
 factors;
   a. Whether or not adjacent mixing zones
 overlap;
   b. Whether organisms would be attracted to
 Ine area of mixing as a result of the effluent
 character;
   c Whither the habitat supports endemic or
 naturally occurring species;
                           d. That the mixing zone does not promote
                         undesirable aquatic life or result in a
                         dominance of nuisance species; and
                           e. That by allowing additional mixing/
                         dilution:
                           i. Substances will not settle to form
                         objectionable deposits;
                           ii. Floating debris, oil, scum, and other
                         matter in concentrations that form nuisances
                         will not be produced;
                           iii. Objectionable color, odor, taste or
                         turbidity will not be produced.
                           3. For situations where a mixing zone
                         demonstration, as set forth in sections E.I
                         and E.2 of this procedure, has been provided
                         by the point source or any interested party,
                         if the permitting authority approves the
                         demonstration made according to the
                         conditions outlined above, an adjustment for
                         existing sources of non-BCCs to the dilution
                         ratio specified in section C.I of this
                         procedure or the dilution fraction specified
                         in section D.3.c.iii of this procedure may be
                         made. The maximum adjustment to the
                         dilution ratio specified in section C.l.a of
                         this procedure shall reflect the dilution
                         available in  the area where discharged
                         induced mixing occurs. The adjustment to
                         the dilution fraction in section D.S.c.iii of -
                         this procedure shall not increase the dilution
                         fraction to greater than 0.75.
                           4. The mixing zone demonstration shall be
                         based on the assumption that a pollutant
                         does not degrade within the proposed mixing
                         zone, except that the regulatory authority
                         may take into account degradation of a
                         pollutant provided each of the following
                         conditions are met:
                           a. Scientifically valid field studies or other
                         relevant information demonstrate that
                         degradation of the pollutant will occur under
                         the full range of environmental conditions
                         expected to  be encountered; and
                           b. The field studies and other relevant
                         information include other factors that affect ...
                         the level of pollutants in the water column,
                         including, but not limited to, resuspension of
                         sediments, chemical speciation, and
                         biological and chemical transformation.

                         Procedure 4: Additivity
                            [Reserved]

                         Procedure 5: Reasonable Potential To Exceed
                         Water Quality Standards
                            If a permitting authority determines that a
                         pollutant is or may be discharged into the
                         Great Lakes System at a level which will
cause, have the reasonable potential to cause,
or contribute to an excursion above any Tier
I criterion or Tier E value, the permitting
authority shall incorporate a water quality-
based effluent limitation (WQPEL) in an
NPDES permit for the discharge of that
pollutant. When facility-specific effluent
monitoring data are available, the permitting
authority shall make this determination by  ,
developing preliminary effluent limitations
and comparing those effluent limitations to
the projected effluent quality (PEQ) of the
discharge in accordance with the following
procedures. In addition, the permitting
authority shall use any relevant information
that indicates a reasonable potential to
exceed any Tier I criterion or Tier II value.
A. Developing Preliminary Effluent
Limitations on the Discharge of a Pollutant
From a Point Source                 /
  1. In accordance with procedure 3 this
appendix, the permitting authority shall
develop preliminary wasteload allocations
for the discharge of the pollutant from the
point source to protect human health,
wildlife, acute aquatic life, and chronic
aquatic life, based upon any existing Tier I
criteria. Where there is no Tier I criterion, the
permitting authority shall calculate a Tier II
value for such pollutant and the preliminary
wasteload allocations shall be based upon
such values; Where there is  insufficient data
to calculate a Tier II value, the permitting
authority shall apply the procedure set forth
in section D of this procedure to determine
whether data must be generated to calculate
a Tier II value.
  2. The permitting authority shall develop
preliminary effluent limitations consistent
with the preliminary wasteload allocations
developed pursuant to section A.I of this
procedure, and in accordance with existing
State or Tribal procedures for converting
wasteload allocations into water quality-
based effluent limitations. At a minimum:
  a. The preliminary effluent limitations
based upon criteria and values for the
protection of human health and wildlife shall
be expressed as monthly limitations;
  b. The preliminary effluent limitations
-based upon criteria and values for the
protection of aquatic life from chronic effects
shall be expressed as either monthly  •
 limitations or weekly limitations; and
   c. The preliminary effluent limitations
based upon the criteria and values for the
 protection of aquatic life from acute effects •
 shall be expressed as daily limitations.

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                   Federal Register / Vol. 58,  No.  72  / Friday, April 16, 1993 /Proposed Rules
                                                                             21041
 B. Determining Reasonable Potential for
 Pollutants Where There Are Ten or More
 Effluent Data Samples   • .   ' ;..
   1. If ID or more facility-specific efiliient
 monitoring data samples are available for a
 pollutant discharged from a. point SOTOTCB to
 the Open Waters of the Great Lakes or to" a
 free-flowing stream where the effluent flow
 rats is less than the stream seven-day, 10-year
 flow, the permitting authority shall apply the
 following procedures:
   a. The permitting authority shall specify
 the PEQ as the greater of the mgyirnum
 effluent concentration or the 99th percentile
 of the distribution of the daily values of the
 facility-specific effluent monitoring data. If
 the PEQ as either the maximum effluent
 concentration or calculated as the 99lh     .
 percentile of the distribution of the. data
 exceeds the preliminary effluent limitation
 based on the criteria and values for the
 protection of aquatic life from acute effects
 developed in accordance with section A of
 this procedure, the permitting authority shall
 establish a WQBEL in an NPDES permit for
 such pollutant;
   b. The permitting authority shall calculate
 the PEQ as the 99th percentile of the
 distribution of monthly averages of tlie
 facility-specific effluent monitoring data. If
, the PEQ exceeds the preliminary effluent    .
 limitation based on criteria and values for the
 protection of aquatic life from chronic effects,,
 human health or wildlife developed In
 accordance with section A of this procedure,
 the permitting authority shall establish a
 WQBEL in an NPDES permit for such
 pollutant; and
   c. The permitting authority shall cfdculate
 the PEQ as the 99th percentile of the.
 distribution of weakly averages of thi?
 facility-specific effluent monitoring data. If  '
 the PEQ exceeds the preliminary effluent
 limitation based on criteria and values to
 protect aquatic life from chronic effects  '
 developed in accordance with section A of
 this procedure, the permitting authority shall
 establish a WQBEL in an NPDES permit for
 such pollutant.            '
   d, As an alternative to the procedures set
 forth in procedures S.B.I.a through S.B.l.c of
 this appendix, the permitting author! ty may
 calculate .the PEQ as the 95 percent
 confidence level of the 95th percentile based
 on a log-normal distribution of the effluent
 concentration.,In calculating the PEQ, the
 permitting authority shall identify'the , -
 number of effluent samples and the
 coefficient of variation of the effluent: data,
 obtain the appropriate multiplying factor
 from. Table 1 of procedure 6 of appendix F,
 and multiply the maximum effluent
 concentration by that factor. The coefficient
 of variation of the effluent data shall be
• calculated as the ratio of the standard
'deviation of the effluent data divided by the
 arithmetic average of the effluent data. If the
 PEQ exceeds any of the preliminary effluent
 limitations developed in accordance with    -
 section A of this procedure, the permitting
 authority shall establish a WQBEL in an
: NPDES permit for such pollutant  -
  - 2. if 10 or more facility-specific effluent
 monitoring data samples are available for a
' p'ollutant. discharged from a point source to
 a free flowing, stream where the-effluent flow
 rate is equal to or greater than the stream
 seven-day, -ID-year flow, the permitting
 authority shall apply the following
 procedures:                          '
   a. The permitting authority shall specify
 the PEQ as the greater of the maximum
 effluent concentration and the 99th
 percentile of the distribution of the daily
 values of the facility-specific effluent
 monitoring data. If the PEQ, as either the
 maximum effluent concentration or
 calculated as the 99th percentile of the
 distribution of the data, exceeds 50 percent
 of the preluninary effluent limitation based;
 on the criteria and values for the protection
 of aquatic life from acute effects developed
 in accordance with section A of this    :
 procedure, the permitting authority shall
 establish a WQBEL in an NPDES permit for
 such pollutant;
   b. The permitting authority shall calculate
 the P_EQ as the 99th percentile of the
 distribution of monthly averages of the
 facility-specific effluent monitoring data. If
 the PEQ exceeds 50 percent of the
 preliminary effluent limitation based on
 criteria and. values for the protection of
 aquatic life from chronic effects, human   '
 health or wildlife developed in accordance
 with section A of this procedure, the
 permitting authority shall establish a WQBEL
 in an NPDES jsermit for such pollutant; and
   c. The permitting authority shall calculate
 the PEQ as the 99th percentile of the
 distribution of weekly averages of the
 facility-specific effluent monitoring data. If
 the PEQ exceeds 50 percent of the
 preluninary limitation based on criteria and
 values to protect aquatic life from chronic
 effects developed in accordance with section
 •A of this procedure, the permitting authority
 shall establish a WQBEL in an NPDES permit
 for such pollutant.
.C. Determining Reasonable Potential for
 Pollutants Where There Are Less Than Ten  .
 Effluent Data Samples
   If less than 10 representative effluent data
 samples are available for a pollutant
 discharged from a point source, the
 pannitting authority shall apply the
 following procedures:
 ,  1. Calculate the PEQ as follows: a.     -
 Determine the number of data samples
 available for the pollutant discharged from"
 the point source and the corresponding
 multiplying factor from Table F5-1 of this
 appendix:
   b. The PEQ shall be the product of the
 appropriate multiplying factor and the
 maximum effluent concentration.
  2, If the PEQ exceeds any of the
 preliminary effluent limitations developed in
 accordance with section A of this procedure,
 the permitting authority shall establish.a
 WQBEL in an NPDES permit for such
 pollutant     -
 D. Developing Necessary Data To Calculate
 Tier H Values Where Such Data Does Not
 Currently Exist
   1. Except as provided in sections D.2, D.3
 or E of'this procedure, for. each pollutant
 listed in Tables of part 132 that a permittee
 reports as known or believed to be present in
 its effluent at a level for. which data sufficient
 tp calculate Tier n values for noncancer  -'-•••.'
  human jiealth, wildlife, acute aquatic life and
  chronic aquatic life does not .exist, the
  permitting authority shall:
    a. Use all available, relevant information,
  including Quantitative Structure Activity  ,
  Relationship information and other relevant
  toxicity information, to estimate ambient
  screening values for such pollutant which  : ..
  will protect-humans from health effects other
  than cancer, aquatic life from,acute and
  chronic effects, and wildlife,-;
    b. In accordance with procedure 3 of this
  appendix, the permitting authority shall
,  develop preliminary wasteload allocations
  for the discharge of the pollutant from the
  point source to protect human health,
  wildlife, acute aquatic life, and chronic
  aquatic life, based upon the estimated
  ambient screening values.                 .
    c. The permitting authority shall develop
  preliminary effluent limitations ia
  accordance with section A.2 of this
  procedure, and consistent with the
  preliminary wasteload allocations developed
  in accordance with section D.l.b of this., ;
  procedure.
    d. The permitting authority shallcompare
 \thePEQdevelopedaccordingtothe
  procedures set forth in sections B and C of
  this procedure to the preliminary effluent
  limitations developed in accordance with
  sectipn D.l.c of this procedure. If the PEQ
  exceeds any of the preliminary effluent
  limitations (or 50 percent of any of the
  preluninary effluent limitations where  the
  pollutant is being discharged into a free-
  flowing stream where the discharger design
  flow is equal to or greater than the stream 7- -
  day, 10-year flow), the permitting authority
.' shall generate, or require the permittee to
  generate, the data necessary to derive Tier H
  values fer noncancer human health, wildlife,
•  acute aquatic life and chronic aquatic life.
    e. The data generated in accordance with,
  section D. i.d of this procedure shall be used
  ia calculating Tier II values as required under
  section A.1 of this procedure.
    2. A permitting authority is not required to
  apply the procedures set forth in section D,i
  of this procedure, and include WQBELs to
  protect aquatic life on the,discharge of any
  pollutant listed in Table 6 of part 132, other
  than bioaccumulative chemicals of concern,
  by an existing point source into the Great
  Lakes System, if:       .
    a. There is insufficient" data to calculate a /
  Tier I criterion or Tier II value for aquatic life
  for such pollutant;          '•'.-.-•••
    b. The permittee has demonstrated through
  a biological assessment that there are no
  acute or chronic effects on aquatic life in the
  receiving water; and'
  •  c, The permittee has demonstrated in
  accordance with procedure 6 Of this
  appendix .that the whole effluent does not
  exhibit acute pr chronic toxieity,
    3, Nothing in sections D,l or D.2 of this
  procedure shall preclude or deny the right of .
  a permitting authority to:        ,  ,     '/;
    a. Determine, in the absence of the data -.-•  •
  necessary to .derive a Tier II value, that the  ,
  discharge of the pollutant will cause, have
  the reasonable potential to cause or
  contribute to an excursion above a narrative
  criterion for water quality; and    .    ' -^
    b. To incorporate a WQBEL for the ,
 '- pollutant into an NPDES permit     :  ..-;,., -.

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21042
Federal Register / Vol. 58,  No.  72 7 Friday, April 16,  1993 7 Proposed Rules
  4. If the permitting authority develops a
water quality-based effluent limitation
consistent with section D.3 of this procedure,
it shall not be obligated to generate or require
tho permitted to generate the data necessary
to derive a Tier II value or values for that
pollutant
B. Determining Reasonable Potential for
Intake Water Pollutants
  1. The permitting authority may determine
that there is no reasonable potential for the
discharge of an identified intake water
pollutant or pollutant parameter to cause or
contribute* to an excursion above a narrative
or numeric water quality criterion within a
State or Tribal water quality standard if the
permittee demonstrates that:
  a. The facility withdraws 100 percent of
the intake water containing the pollutant
from the same body of water into which the
discharge is made;
  b. The facility docs not contribute any
additional mass of the identified intake water
pollutant to its wastewaterj
  c. The facility does not alter the identified
intake water pollutant chemically or
physically hi a manner that would cause
advene water quality impacts to occur that
would not occur if the pollutants were left in-
strearn;
  d. The facility docs not increase the
identified intake water pollutant
concentration at the edge of the mixing zone,
or at the point of discharge if a mixing zone
is not allowed, as compared to the pollutant
concentration in the intake water; and
  e. The timing and location of the discharge
would not cause adverse water quality
impacts to occur from the discharge of the
identified intake water pollutant that would
not occur if the pollutants were left in-
stream.
  2. Upon demonstration of the conditions La
section B.1 of this procedure, the permitting
authority is not required to include a water
quality-bused effluent limitation for the
identified intake water pollutant in the
facility's pormlt, provided:
  a. The NPDES permit fact sheet or
statement of basis summarizes the basis for
the determination that there is no reasonable
potential for the discharge of an identified
intake water pollutant to cause or contribute
to art excursion above a narrative or numeric
water quality criterion and references
appropriate supporting documentation
included in the administrative record;
  b, The permit requires all influent, effluent,
and ambient monitoring necessary to
demonstrate that the conditions in section
E,l of this procedure are maintained during
the permit term; and
   c. The permit contains a reopener clause
authorizing modification or revocation and
relssuance of the permit if new information
indicates changes in the conditions hi section
B.1 of this procedure.
   3, Absent demonstration of the conditions
in section E.I of this procedure, the
parmltting authority shall use the procedures
tinder sections A through D of this procedure
to determine whether a discharge has the
reasonable potential to cause or contribute to
an excursion above a narrative or numeric
water quality criterion.
                           "'  „;,; ,; •,'<".•:   ,«;. ;,,••:!  .",,: Vs;,,.;,, ',:>".; ',. ;••„>.';:•'.•
                           4. This section does not alter the
                         permitting authority's existing obligation to
                         develop effluent limitations consistent with
                         the assumptions and requirements of any
                         available waste load allocation for the
                         discharge prepared by the State or Tribe and
                         approved by EPA pursuant to 40 CFR 130.7.
                         F. Other Applicable Conditions
                           1. In addition to the above procedures,
                         effluent limitations shall be established to
                         comply with all other applicable State, Tribal
                         and Federal laws and regulations, including
                         technology-based requirements and
                         antidegradation policies.
                           2. When determining whether water,
                         quality-based effluent limitations are
                         necessary, information from chemical-
                         specific, whole effluent toxicity and
                         biological assessments shall be considered
                         independently.
                           3. If the geometric mean of a pollutant in
                         fish tissue samples collected from a water
                         body exceeds the tissue basis of a Tier I
                         criterion or Tier n value, after consideration
                         of the variability of the pollutant's
                         bioconcentration and bioaccumulation in
                         fish, each facility that discharges detectable
                         levels of such pollutant has the reasonable
                         potential to cause or contribute to an
                         excursion above a Tier I criteria or a Tier II
                         value and the permitting authority shall
                         establish a WQBEL for such pollutant hi the
                         NPDES permit for such facility.

                         Tables to Procedure 5 of Appendix F

                                        TABLE F5-1
Number of samples
1 	 	 	
2
3 	
4 	
5 	
6 	 	 	
7 	 	
8 	
9 	 	 	
Multiplying fac-
tor for CV=0.6
6.2
3.8
3.0
2.6
2.3
2.1
2.0
1.9
1.8
                          Procedure 6t Whole Effluent Toxicity
                          Requirements for Point Sources
                          A. Whole Effluent Toxicity Requirements
                            The following requirements shall apply to
                          all discharges:
                            1. No discharge shall exceed 1.0 acute toxic
                          unit (TUJ at the point of discharge;
                            2. No discharge shall cause or contribute to
                          causing any point in a receiving water to
                          exceed 1.0 chronic toxic unit (TUJ; provided
                          that, at the discretion of the permitting
                          authority, the foregoing requirement shall not
                          apply, (i) within a mixing zone, or (ii) in any
                          portion of a receiving water for which a
                          permitting authority nas demonstrated that
                          due to the site-specific physical and
                          hydrological conditions, it is unnecessary to
                          apply any chronic whole effluent toxicity
                          (WET) requirements to protect aquatic life;
                          and
                            3. No discharge shall cause or contribute to
                          causing an excursion above any numeric
                          WET criteria or narrative criteria for water
                          quality within a State or Tribal water quality
                          standard.                      • •  ..
 B. WET Test Methods
  All WET tests performed pursuant to :this   ,
 procedure 6 shall be performed in
 accordance with test procedures approved
 under 40 CFR part 136. If there are no test
 procedures for WET approved under 40 CFR
 part 136, all WET tests performed pursuant
 to this procedure shall be performed in
 accordance with:
  1. "Methods for Measuring the Acute
 Toxicity of Effluents and Receiving Waters to
 Freshwater and Marine Organisms", EPA/
 600/4-90/027;
  2. "Short-Term Methods for Estimating the
 Chronic Toxicity of Effluents and Receiving
 Waters to Freshwater Organisms", EPA/600/
 4-89/001, and Supplement, EPA/600/4-89/
 OOla (except Method #1001 and #1003); or
  3. other acute or chronic toxicity testing
 methods determined to be acceptable by the
 permitting authority,
 C. Permit Conditions
  1. Where a permitting authority determines
 that a discharge violates or has the reasonable
 potential to violate the requirements of
 section A of this procedure, the permitting
 authority:
,  a. Shall establish a water quality-based
 effluent limitation (WQBEL) or WQBELs for
 WET to ensure compliance with section A of
 this procedure;
  b. Shall calculate the WQBEL to ensure
 compliance with the requirements of section
 A.2 of this procedure based upon the dilution.
 calculations specified in sections C and D of
 procedure B3 of this appendix;
   c. May allow an appropriate schedule of
 compliance consistent with procedure 9 of
 this appendix; and
   d. May decide that WQBELs for WET are
 not necessary if the State or Tribe's water
 quality standard does not contain a numeric
 criterion for WET, and the permitting
 authority demonstrates in the fact sheet or
 statement of basis of the NPDES permit that
 chemical-specific effluent limits" are
 sufficient to ensure compliance with section
 A of this procedure.            -    ,
   2. Where a permitting authority does not
 determine that a discharge violates or has the
 reasonable potential to violate the
 requirements of section A of this procedure,
 but the permitting authority lacks sufficient
 data to demonstrate pursuant to section D
 that the discharge does not violate or have
 the reasonable potential to violate the
 requirements of section A of this prodedure,
 then the permitting authority shall include:
   a. WET testing requirements in NPDES
 permits to generate the data needed to
 adequately characterize the aquatic toxicity
 of the effluent; and  ,    '    .
   b. Appropriate language requiring the
 initiation and completion of a toxicity
 reduction evaluation by the permittee if the
 toxicity testing data required by  section
 6.C.2.a of this appendix indicate that the
 discharge violates or has reasonable potential
 to violate the requirements of section A of
 this procedure.
   3. Where sufficient data are available for a
 permitting authority to determine pursuant to
 section D of this procedure that a discharge
 does not violate or have the reasonable
 potential to violate the requirements in

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                  Federal Register -/ Vol. 58,  No.  72 /  Friday, • April  16, 1993  / Proposed Rules
                                                                             21043
 section A of this procedure, the permitting
 authority shall hot he required to include in
 the permit those conditions set forth in
 section C.2 of this procedure, hut may do so
 at its discretion.
 D. Reasonable Potential Determinations
 "'. The permitting authority shall take Into
 account the factors described in 40 CFR
 122.44(d)(l)(ii} in determining whether a
 discharge causes, has the reasonable
 potential to cause, or contributes to a
 violation of the requirements of section A of
 this procedure. In cases where facility-
 specific WET effluent data are available, a
 permitting authority shall use the following
 procedures hi determining whether a      :
 discharge .causes, has the reasonable
 potential to cause, or contributes to a
 violation of section A of this procedure:
  1. The-permitting authority shall  ,''.'.
 characterize the toxicity of the discharge by;"
  a. Averaging acute toxicity values collected
 within the same day for each species;       •
   b. Averaging chronic toxicity values
 collected within the same calendar month for
 each species; and
   c. When either chronic or acute toxicity
 values are unavailable; estimating the
 missing result by using ah effluent-specific :
 acute/chronic ratio, except that when there is
 no effluent-specific acute/chronic ratio, the
 missing value shall be predicted using a
 default acute/chronic ratio of 10.
   2. A'discharge causes, has the reasonable
 potential to cause, or contributes to a
 violation of 1.0 TUa when sufficient  effluent-
 specific information demonstrates that
                50%
    % effect in 100% effluent
                                   iV(BxRWC)
where B is the multiplying factor taken from
Table F6-1 of this procedure and RWC is the
receiving water concentration of the effluent
expressed in decimal form. Where there are
less than ten individual WET tests, the    •
multiplying factor taken from Table F6-1 of
this procedure shall be based on a CV of 0.6.
Where there are ten or more  individual WET
tests, the multiplying factor taken from Table
F8—1 qf this procedure shall  be based on a
CV calculated as the standard deviation of
the WET tests by the arithmetic mean of the
WET tests, For discharges to Tributaries of
the Great Lakes System, RWC is determined
by dividing the source flow by the Q,
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21044
Federal  Register / Vol.  58, No. 72, / Friday, April 16,  1993 / Proposed Rules
      TABLE F6-t.—REASONABLE POTENTIAL MULTIPLYING FACTORS: 95% CONFIDENCE LEVEL AND 95% PROBABILITY BASIS—
                                                          Continued                ^
Number of samples
•jg 	 , 	 	 	
20 ..„.„.„..... 	
Coefficient of variation
0.1
1.1
1.1
0.2
1.1
1.1
0.3
1.2
1.2
0.4
1.3
1.2
0.5
1.3
1.3
0.6
1.4
1.4
0.7
1.5
1.4
0.8
1.5
1.5
0.9
1.6
1.5
1.0
1.6
1.6
1.1
1.7
1.7
1.2
1.8
1.7
1.3
1.8
1.8
1.4
1.9
1.8
1.5
1.9
1.8
1.6
2.0
1.9
1.7
2.0
1.9
1.8
2.0
2.0
1.9
2.1
2.0
2.0
2.1
2.0
Ptocedura 7: Loading Limits
  Whenever a water quality-based affluent
limitation (WQBEL) is developed based upon
(ha provisions of procedures 3 and 5 of this
appendix, or other State procedures except
for pollutants which cannot be appropriately
expnsied in terms of mass, the WQBEL shall
bo established as both a concentration value
and an equivalent mass loading rate value.
  A, Both values shall be consistent in terms
of dally or weekly, and monthly averages, or
la other appropriate time-related terms.
  B. The mass loading values shall be
calculated using (he effluent flow rate values
that are consistent with those used in the  -
development of WQBEL concentration values
pursuant to procedures 3 and 5 of this
appendix, or other State procedures.
Procedure 8: Water Quality-Based Effluent
Limitations Below the Levels of
Quantification
  Whan a water quality-based effluent
limitation (WQBEL) for a pollutant is
determined to bo less than the minimum
lavcl (ML) of the most sensitive analytical  >
technique specified In or approved under 40
CFR part 136, the permitting authority shall
ula the following strategy to regulate the
source of that pollutant in the NPDES permit
A, Permit Limit
  Include the WQBEL in the NPDES permit,
specify an analytical method and
measurement frequency, and identify the
compliance evaluation level (GEL) for the
pollutant that is not to be exceeded. The GEL
is the level at which compliance with, an
effluent limit is assessed. The permittee shall
bo given the opportunity to demonstrate that
a higher level is appropriate because of
matrix interference.
B, Narrative Statement
  Include permit text explaining that the
WQBEL for the pollutant is less than the GEL
of lha specified analytical method.
C. Daily, Weekly and Monthly Limits
  Include text in each permit stating that any
discharge of a pollutant in amounts greater
than or equal to the daily CEL for that
pollutant is an exceedance. Include text
when a permit contains a weekly or monthly
limit, (i) requiring that all discharges
sampled during such time period be averaged
according to procedures established by the
permitting authority, and (ii) stating than an
average value greater than or equal to a
weekly or monthly CEL is an exceedance.
D. Program Requirement
  Include a condition in the permit which
requires the permittee to develop and
conduct a pollutant minimization program.
The goal of the pollutant minimization
                         program shall be to reduce all potential
                         sources of the pollutant to maintain the
                         effluent at or below the WQBEL. The
                         minimization program shall, as a minimum,
                         include the following:
                           1. An annual review arid semi-annual
                         monitoring of potential sources of the
                         pollutant;
                           2. Quarterly monitoring for the pollutant in
                         the influent to the wastewater treatment .
                         system;
                           3. Submittal of a control strategy designed
                         to proceed toward the goal of maintaining all
                         sources of the pollutant to the wastewater
                         collection system below the WQBEL;
                           4. When the sources of the pollutant are
                         discovered, appropriate control measures
                         shall be implemented, consistent with the
                         control strategy; and
                           5. An annual status jeport shall be sent to
                         the permitting authority including:
                           a. All minimization program monitoring
                         results for the previous year;
                           b. A list of potential sources of the
                         pollutant; and
                           c. All action taken to determine and
                         eliminate the pollutant
                         E. Compliance Text
                           Include permit text specifying that the
                         permittee will be considered in compliance
                         during any time period if all applicable
                         discharge limits are being met, the Pollutant
                         Minimization Program described in section D
                         of this procedure is being fully performed,
                         and all other terms and conditions of the
                         permit are being fully satisfied.
                         F. BCCs
                           If the WQBEL is for a pollutant which is
                         aBCC:
                           1. Include a condition in the permit which
                         requires the permittee to determine if the
                         pollutant is bioconcentrating or
                         bioaccumulating in fish exposed to the
                         effluent. Resident fish monitoring/caged fish
                         monitoring, effluent pollutant
                         bioconcentration studies, and/or application
                         of other approvable procedures shall be
                         required as part of the permit condition.
                           2. To the extent that these studies reveal
                         unacceptable accumulation in fish tissue as
                         a result of the discharge, the control strategy
                         required by section D.3 of this procedure
                         shall be reviewed and modified as
                         appropriate. For purposes of the foregoing,
                         "unacceptable accumulation" shall be /
                         determined by: (i) Comparing the level of the
                         pollutant in the monitored fish tissue to the
                         level used to develop the water quality
                         criteria for that pollutant (accounting for the
                         variability of the bioconcentration test and
                         for the calculated dilution of the effluent
                         flow hi the receiving water), or (ii)
                         calculating the effluent concentration of the
                         pollutant from fish tissue monitoring and
comparing the result to the water quality
criteria for that pollutant (accounting for the
variability of the bioconcentration test and
for the calculated dilution of the effluent
flow in the receiving water).
G. Other Conditions
  The permit may also require the
development and implementation of other
innovative monitoring programs. These
programs would be determined On a case-by-
case basis and may include:
  1. New analytical equipment and methods
more sensitive than the analytical method
specified in the permit;
  2. Internal waste stream monitoring and
mass balance modeling techniques; and
  3. Other innovative monitoring techniques
capable of adequately determining the
compliance status of the effluent.

Procedure 9: Compliance Schedules
A. New or More Restrictive Limitations.fbr
New or Increasing Dischargers
  When a permit is issued, reissued or
modified to contain an effluent limitation
derived from a Tier I criterion or Tier II
value, whole effluent toxicity criterion or
narrative criterion to address a new or -
increased discharge, the permittee shall
comply with the new effluent limitation
upon the commencement of the new or
increased discharge. -     •    •
B. New or More Restrictive Limitations for
Existing Discharges
  1. Any existing permit which is reissued or
modified to contain a new or more restrictive
effluent limitation based upon a Tier I
criterion or Tier II value, whole effluent
toxicity criterion, or narrative criterion may
allow a reasonable period of time, not to
exceed the term of the permit or three, years,
whichever is less, for the permittee to comply
with that limit, provided that the Tier I
criterion. Tier II value, whole effluent
toxicity criterion, or narrative criterion was
adopted (or, in the case of a narrative
criterion, was newly interpreted) after July 1,,
1977.
 , 2. If a permit establishes a schedule of
compliance which exceeds one year from the
date of permit issuance, the schedule shall
set forth, interim requirements and the dates
for their achievement. The time between
interim dates for compliance schedules
under this provision may not exceed one
year. If the tune necessary for completion of ;
any interim requirement is more than one
year and is not readily divisible into stages
for completion, the permit shall specify
interim dates which shall be at least annual
for the submission of progress reports toward
completion of the interim requirements and
indicate a projected completion date.

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                  Federal Register /  Vol. 58, No. 72  / Friday, April 16,  1993 /  Proposed Rules
                                                                             21045
C. Delayed Effectiveness of Tier n
Limitations for Existing Discharges
  Whenever a limit based upon a Tier II
value is included in a final permit issued to
an existing discharger, the permit may^
provide a reasonable period of time up to two
years in which to provide additional studies
necessary to develop a Tier I criterion or to
modify the Tier II value. In such cases, the
permit shall require compliance with the Tier
II limitation within a reasonable time no later
than three years after permit issuance  and
contain a reopener clause allowing permit
modification if specified studies have been
provided by the permittee or any person
during the time allowed for generation of
additional data. If the permittee or any
person demonstrates through additional
studies that a revised'limit is appropriate,
that limit shall be incorporated through
permit modification,and a reasonable time
period allowed for compliance up to the
permit term. If the specified studies have
been performed and do not demonstrate that
a revised limit is appropriate, the permitting
authority may provide the permittee a
reasonable additional tune with which to
achieve compliance with the original effluent
limitation within the remaining term of the
permit. The limit revised based upon
additional studies is not affected by the anti:
backsliding provisions of section 402(o)  of
the Clean Water Act.
D. Definitions     , ':   1
  Existing discharger. Any facility that.
commenced discharging prior to [insert the  ,
effective date affinal rule], provided it is not,
an increasing discharger.  '•'"-•!.•
  Increasing discharger. An existing
discharger that on or after [insert the effective
dateoffinal.rule] has an increase in flow,
concentration or loading from that which was
previously specified in its permit.
  New discharger. Any facility that
commences discharging on or after [insert the
effective date affinal ru/ej.

[FR Doc. 93-7832 Filed 4-15-93; 8:45,am]
BILLING CODE 6560-60-P

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21046	Federal Register / Vol. 58, No. 72  /  Friday, April 16,  1993 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Parts 122,123,131, and 132

[FRL-4613-8]

F1N204Q-AC06

Proposed Water Quality Guidance for
the Great Lakes System

AGENCY; U.S. Environmental Protection
Agency
ACTION: Proposed rule; correction.

SUMMARY: EPA is making corrections to
tho preamble to the proposed rule for
the Water Quality Guidance for the
Great Lakes System which appears
elsewhere in this separate part of the
Federal Register. The corrections
provide missing text and changes that
were inadvertently omitted during
editing of the proposed rule. In
addition, EPA is encouraging
commonters on the Guidance to provide
one copy of their comments in
electronic format
DATES: EPA will accept public
comments on the proposed Guidance
including the corrections until
September 13,1993. Comments
postmarked after this date may not be
considered.
ADDRESSES: An original and 4 copies of
all comments on the proposed Guidance
including the corrections should be
addressed to Wendy Schumacher, Water
Quality Branch (WQS-16J), U.S. EPA,
Region V, 77 West Jackson Blvd.,
Chicago, Illinois, 60604 (telephone:
312-886-0142), In addition, EPA
encourages commenters to provide one
copy of their comments in electronic
format, preferably 5.25" or 3.5" diskettes
compatible with WordPerfect for DOS,
FOR FURTHER INFORMATION CONTACT:
Kenneth A. Fenner, Water Quality
Branch Chief CWQS-16J), U.S. EPA
Region V, 77 W. Jackson Blvd.,,Chicago
Illinois, 60604 (Telephone: 312-353-
2079).
SUPPLEMENTARY INFORMATION: This
document provides corrections to
several paragraphs in the preamble to
tho proposed Water Quality Guidance
for the Great Lakes System ("Guidance")
developed under section 118(c)(2) of the
Clean Water Act (CWA), and published
elsewhere in this separate part of the
Federal Register. This Guidance, once
finalized, will establish minimum water
quality standards, antidegradation
policies, and implementation
procedures for waters within the Great
Lakes System in the  States of New York,
Pennsylvania, Ohio, Indiana, Illinois,
Minnesota, Wisconsin, and Michigan,
including the waters within the
jurisdiction of Indian Tribes.
  The corrections provide missing text
and changes that were inadvertently
omitted during editing of the proposed
rule,	i		,_ f	
Correction 1 •
   „ "   ;' I    , •   ''''!!' • ,: '•', '! , " H'" ' ' ' :'"'i ' ' ,,",* , ' .",' "iiL" -..' '
  Replace the 17th paragraph in section
I.A.4.b of the preamble with the two
naw paragraphs below. The revision
corrects an inadvertent omission of text
that references the source of measured
concentrations of pollutants in fish
tissue in the Great Lakes system,
references a recent EPA study, and
requests additional comments. The two
new paragraphs would read:
  These substances appear to be
approaching equilibrium in the Great
Lakes System at unacceptably high
levels due to continuing loadings froni
a variety of sources, such as: (1)
Historically contaminated sediments in
the embayments as well as the open
lakes; (2) tributary inputs resulting from
point sources, spills and direct runoff
from urban and rural areas, and/or
resuspension from contaminated
sediments; and (3) atmospheric
deposition of pollutants.
  Concentrations measured.in 1990 in
lake trout in Lake Michigan of PCBs and
chlorinated pesticides exceed the fish  .
tissue concentrations that correspond to
current EPA 304(a) water quality criteria
by several orders of magnitude (Table I—
1) (DeVault 1993a). As discussed above,
coho salmon respond much faster to
changes in water column concentrations
than lake trout. If a new equilibrium is
being reached given current mass
loadings, then substantial further
reductions in mass loadings to the lakes
will be necessary to eliminate fish
advisories.
  EPA recently released a national
study on chemical residues in fish (EPA,
1992). Many of the fish samples
evaluated in the study were from sites
in the Great Lakes basin known to be
influenced by various point and
nonpbint sources. EPA invites
comments on the applicability of data
from the study to the analysis of toxic
pollutants in the Great Lakes ecosystem.
Correction 2
  Replace the fifth paragraph of section
n.E.l.b of the preamble with the new
paragraph below. The editorial changes
that were inadvertently omitted clarify
the Agency's position that the proposed
Guidance would be applicable to
decisions under other statutes "to the
extent independent regulatory authority
requires compliance with the Clean
Water Act." The new paragraph would
read:
  Finally, upon Incorporation into'
enforceable State, Tribal, or Federal
laws, the criteria and values or
appropriate site-specific modifications
developed under the proposed
Guidance will apply to a wide range of
regulatory decisions, including
decisions uader other statutes tt> the
extent independent regulatory authority
requires compliance with the Clean
Water Act. Examples of such
application include:
Correction 3
  Replace the six&.paragraph of section
n.I of the preamble with the new
paragraph below. The text inadvertently
omitted reference to Table 5. The new
paragraph would read:
  For pollutants other than those listed
in Tables 1, 2, 3, 4, and 5, the
requirements of § 132.5(e)(2) are
intended to ensure that State or Tribal
criteria methodologies and narrative
implementation procedures result in
criteria or values equal to or more
restrictive than the proposed Guidance
methodology produces.
Correction 4
  Replace the fourth sentence of the
first paragraph of sectionTV.B.5 of the
preamble with the three new sentences
below. The text corrects a reference to
the chemicals that the Agency believes
may be affected by the use of
bioaccumulation factors.  The three new
sentences would read:
  This change will result in more
stringent criteria for a number of
chemicals in the Great Lakes system.
The chemicals most affected would be
those listed as bioaccumulative
chemicals of concern and potential
bioaccumulative chemicals of concern
in Table 6 of part 132, This change is
also consistent with EPA's existing
guidance ("Technical Support
Document for Water Quality-based
Toxics Control" (EPA 505/2-90-001)'
and draft "Assessment and Control of
Bioconcentratable Contaminants in
Surface Waters" (56 FR13150)).
Correction 5
  Replace the third last paragraph of
section VII.D.S.g of the preamble with •
the new paragraph below. The editorial
changes that were inadvertently omitted
clarify .the scenario presented in the
preamble. The new paragraph Would
read;
  In this scenario, the return to  the
higher production rate may be subject to
antidegradation, depending on the   ...
timing of the previous production
patterns and whether or not they are
reflected in the effluent limits and EEQ
baseline conditions established at the

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                .Federal  Register / Vol. 58, No.  72 I Friday, April 16, 199a /Proposed Rules
                                                                     21047
 time of. permit reissuance. As discussed
 above, information from the preceding ;
 permit term should be used to
 determine the effluent quality. The
 permit writer has the flexibility to use
 the most representative information
 from the preceding permit term in
 making the determination. The permit
 •writer could account for a recent   • -' • -
 downturn in production by setting the
 effluent limits and establishing EEQ
 baseline conditions to reflect conditions
 prior to the downturn. In this, j:ase,   '-,.
 permit limits would aLready^e^et at
. levels that will accommodate^rlturn to
 historic production levels. In contrast, if
 a production decrease was in evidence
 over the previous permit term and likely
 to continue, the permit would likely  ,
 establish effluent limits and baseline
 EEQ conditions at the level
 representative of the previous permit
 term, and a firm'seeking to return to    .
 production levels achieved hi an earlier
 time period would be subject to
 antidegradation (if changes to these
 permit limits are necessary to
 accommodate this increase in
 production). _                 ' .-

 Correction 6

  Replace the third sentence of the last
 paragraph of section VILF.S.e of the
 •preamble with the new sentence below.
 The editorial changes that were
 inadvertently omitted add the words "or
 analyze the cost-effectiveness of a;    -';
 pollution prevention alternative" to the
 sentence. The new sentence would read:
,   While the proposed Guidance does
 not explicitly require cost/benefit or
 cosi effectiveness analyses, in .
 determining what is prudent and
 feasible EPA believes that the Director
 will likely weigh the cost of the
 pjollution prevention measures against
 the benefits with regard to the
 reductions in pollutant loading.or
 analyze the cost-effectiveness of a
 pollution prevention alternative.

 Correction 7
   Replace the last digit of the
 Educational Resources Information
 Center (ERIC) order numbers for
 documents appearing in section Xm of
 the preamble with the capital letter "D"
 This change corrects a typographical
 error in editing. For examplspthe ERIC.
 order number for document A in section
 XEI should read "390D" instead of
 "3900".  Similar changes should be
 made ,in the ERIC order numbers for
 these documents wherever they may
 appear in the preamble, rule text, and
 appendixes.      _„
 Electronic Submission of Comments
   EPA'is encouraging people who
 submit comments on the proposed
 Guidance to provide one copy of their
 comments in electronic format. Having
 comments in electronic formatwill
 facilitate analysis of the comments
 received, and will help ensure
 comments on specific topics.are
 efficiently addressed EPA believes that
 because a large majority ofcommenters
 will-probably use microcomputers to,
 prepare the comments, it may be
 relatively easy for commenters to
 prepare a diskette copy of the
 comments. EPA would welcome
 comments in any common diskette
 format, but prefers 5.25" or 3.5""
 diskettes compatible with WordPerfect
 for DOS to reduce chances for incorrect
 transfers from different formats to the
 format EPA is likely to use.
   Submission of a copy of the
 comments in electronic format is   ,
 voluntary. EPA will give full   :
 consideration to comments whether or •
 not they are accompanied by a copy in
 electronic format.      '- -        '   "   ,
   Submission of comments in electronic
 format does not eliminate the need for
 commenters to provide an "original and
 four copies of comments in hardcopy
 format.
  'To facilitate public review of the,    •.
 Guidance, diskette copies of the       :
 Guidance and selected supporting
 materials are available from the
, addresses shown in section XIH of the
 preamble. The NTIS order number is
 PB-9'a-504-504. The ERIC order
 number is 526D.
   Dated: April 8,1993.
 Tudor T.Davies,
 Acting Assistant Administrator,
 [FR Doc. 93-8659 Filed 4-15-93; 8:45 am]
 BILUNG CODE 6580-01-P

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