[Federal Register Volume 78, Number 65 (Thursday, April 4, 2013)]
[Rules and Regulations]
[Pages 20252-20255]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-07784]



[[Page 20252]]

-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2012-0095; FRL-9795-8]
RIN 2040-AF33


Water Quality Standards; Withdrawal of Certain Federal Water 
Quality Criteria Applicable to California, New Jersey and Puerto Rico

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: EPA is taking final action to amend the federal regulations to 
withdraw certain human health and aquatic life water quality criteria 
applicable to waters of New Jersey, Puerto Rico, and California's San 
Francisco Bay. In 1992, EPA promulgated the National Toxics Rule or NTR 
to establish numeric water quality criteria for 12 states and two 
Territories, including New Jersey, Puerto Rico and parts of California. 
On May 18, 2000, EPA then promulgated a final rule known as the 
California Toxics Rule or CTR in order to establish numeric water 
quality criteria for priority toxic pollutants for the State of 
California that were not previously in the NTR. These two states and 
one territory have now adopted, and EPA has approved, water quality 
criteria for certain pollutants included in the NTR. Since California, 
New Jersey, and Puerto Rico now have criteria that are applicable water 
quality standards for purposes of the Clean Water Act, EPA has 
determined that the federally promulgated criteria are no longer needed 
for these pollutants. In today's action, EPA is amending the federal 
regulations to withdraw those certain criteria applicable to 
California, New Jersey, and Puerto Rico as described in the April 5, 
2012 proposed rule. The withdrawal of the federally promulgated 
criteria will enable New Jersey, Puerto Rico, and California to 
implement their EPA-approved water quality criteria.

DATES: This final rule is effective on June 3, 2013.

ADDRESSES: EPA has established a docket for this action identified by 
Docket ID No. EPA-HQ-OW-2012-0095. For additional information about 
EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in www.regulations.gov or in hard copy at two Docket Facilities. The 
Office of Water (``OW'') Docket Center is open from 8:30 a.m. until 
4:30 p.m., Monday through Friday, excluding legal holidays. The Docket 
telephone number is (202) 566-2426 and the Docket address is OW Docket, 
EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC, 20004. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744. Publicly available docket 
materials are also available in hard copy at the U.S. EPA Region 2 and 
U.S. EPA Region 9 addresses. Docket materials can be accessed from 9:00 
a.m. until 3:00 p.m., Monday through Friday, excluding legal holidays.

FOR FURTHER INFORMATION CONTACT: For information with respect to New 
Jersey, contact Wayne Jackson, U.S. EPA, Region 2, Clean Water 
Division, 290 Broadway, New York, New York 10007 (telephone: (212) 637-
3807 or email: jackson.wayne@epa.gov). For information with respect to 
Puerto Rico, contact Izabela Wojtenko, U.S. EPA, Region 2, Clean Water 
Division, 290 Broadway, New York, NY 10007 (telephone: (212) 637-3814 
or email: wojtenko.izabela@epa.gov). For information with respect to 
California, contact Diane E. Fleck, P.E. Esq., U.S. EPA Region 9, WTR-
2, 75 Hawthorne St., San Francisco, CA 94105 (telephone: (415) 972-3480 
or email: fleck.diane@epa.gov). For general and administrative 
concerns, contact Bryan ``Ibrahim'' Goodwin, U.S. EPA Headquarters, 
Office of Science and Technology, 1200 Pennsylvania Avenue NW., Mail 
Code 4305T, Washington, DC 20460 (telephone: (202) 566-0762 or email: 
goodwin.bryan@epa.gov).

SUPPLEMENTARY INFORMATION: 

I. General Information

    No one is regulated by this rule. This rule withdraws certain 
federal water quality criteria applicable to New Jersey, Puerto Rico, 
and California. The withdrawal of the federal water quality criteria 
applicable to New Jersey and Puerto Rico in this action, in combination 
with previous federal withdrawal actions, results in the complete 
removal of New Jersey and Puerto Rico from the NTR.

Background

    In 1992, EPA promulgated the NTR to establish numeric water quality 
criteria for 12 states and two Territories, including New Jersey, 
Puerto Rico and parts of California (hereafter ``States'') that had 
failed to comply fully with Section 303(c)(2)(B) of the Clean Water Act 
or CWA, 33 U.S.C. 1313(c)(2)(B) (57 FR 60848, December 22, 1992). The 
criteria codified at 40 CFR 131.36 became the applicable water quality 
standards in those 14 States for all purposes and programs under the 
CWA effective February 5, 1993.
    On May 18, 2000, EPA then promulgated a final rule known as the CTR 
at 40 CFR 131.38 in order to establish numeric water quality criteria 
for priority toxic pollutants for the State of California that were not 
previously in the NTR, because the State had not complied fully with 
Section 303(c)(2)(B) of the CWA (65 FR 31682). At that time, any 
criteria promulgated as part of the NTR for California were codified in 
the criteria tables for the CTR at 40 CFR 131.38. The water quality 
standards program was developed with an emphasis on state primacy. 
Although in the NTR and CTR EPA promulgated toxic criteria for the 
certain States, EPA prefers that states maintain primacy and revise 
their own standards to achieve full compliance with the CWA (see 57 FR 
60860, December 22, 1992). As described in the preamble to the final 
NTR and CTR, when a State adopts, and EPA approves, water quality 
criteria that meet the requirements of the CWA, EPA issues a rule 
amending the NTR and/or CTR to withdraw the federal criteria applicable 
to that State. On April 5, 2012, EPA proposed the withdrawal of certain 
criteria for New Jersey, Puerto Rico and California's San Francisco Bay 
(see 77 FR 20585; April 5, 2012). EPA received comments for the 
proposed rule and a listing of the comments and EPA's responses are 
contained in the document ``Response to Comments for Water Quality 
Standards; Withdrawal of Certain Federal Water Quality Criteria 
Applicable to California, New Jersey and Puerto Rico.'' Today, EPA is 
taking final action on its proposal. This rule does not remove any 
water quality protections. Rather, it removes a federal regulation that 
essentially duplicates State regulation.

New Jersey

    As discussed in the proposal (77 FR 20585; April 5, 2012), this 
final rule

[[Page 20253]]

withdraws criteria for New Jersey related to two separate approval 
actions: August 16, 2002 and December 20, 2006. EPA's action approving 
New Jersey's adopted criteria (including a rationale for approving 
criteria that are less stringent than the federally promulgated 
criteria) can be accessed at OW docket number EPA-HQ-OW-2012-0095.
    Today, EPA is withdrawing the federal water quality criteria listed 
below, as the state's criteria have been determined to meet the 
requirements of the CWA and EPA's implementing regulations at 40 CFR 
131.

 Arsenic (aquatic life--freshwater (acute and chronic) and 
marine water (acute and chronic))
 Cadmium (aquatic life--freshwater (acute and chronic) and 
marine water (acute and chronic))
 Chromium III (aquatic life--freshwater (acute and chronic))
 Chromium VI (aquatic life--freshwater (acute and chronic) and 
marine water (acute and chronic))
 Copper (aquatic life--freshwater (acute and chronic) and 
marine water (acute and chronic))
 Lead (aquatic life--freshwater (acute and chronic) and marine 
water (acute and chronic))
 Mercury (aquatic life--freshwater (acute and chronic) and 
marine water (acute and chronic))
 Nickel (aquatic life--freshwater (acute and chronic) and 
marine water (acute and chronic))
 Selenium (aquatic life--freshwater (acute and chronic) and 
marine water (acute and chronic))
 Silver (aquatic life--freshwater (acute) and marine water 
(acute))
 Zinc (aquatic life--freshwater (acute and chronic) and marine 
water (acute and chronic))
 Chlorodibromomethane (human health--organisms only)
 1,1-Dichloroethylene (human health--organisms only).
 1,1,2,2-Tetrachloroethane (human health--organisms only).
 1,1,2-Trichloroethane (human health--organisms only).
 Fluorene (human health--organisms only)
 Hexachlorbutadiene (human health--organisms only)
 Isophrone (human health--organisms only)
 gamma-BHC (human health--organisms only)
 PCBs (human health--water & organisms and organisms only)

    The finalization of this action for New Jersey results in the 
complete removal of New Jersey from the NTR.

Puerto Rico

    As discussed in the proposal (77 FR 20585; April 5, 2012), this 
final rule withdraws criteria for Puerto Rico related to one approval 
action on August 4, 2010. EPA's actions approving Puerto Rico's adopted 
criteria (including a rationale for approving criteria that are less 
stringent than the federally promulgated criteria) can be accessed at 
OW docket number EPA-HQ-OW-2012-0095.
    Today, EPA is withdrawing the federal water quality criteria listed 
below, as Puerto Rico's criteria have been determined to meet the 
requirements of the CWA and EPA's implementing regulations at 40 CFR 
part 131.

 Chromium VI (aquatic life--marine water (acute and chronic))
 Mercury (aquatic life--freshwater (chronic) and marine water 
(chronic))
 Thallium (human health -water & organisms and organisms only)
 Dioxin (human health--water & organisms and organisms only)
 Dichlorobromomethane (human health--water & organisms and 
organisms only)
 Benzo(a)Anthracene (human health--water & organisms and 
organisms only)
 Benzo(a)Pyrene (human health--water & organisms and organisms 
only)
 Benzo(b)Flouranthene (human health--water & organisms and 
organisms only)
 Benzo(k)Flouranthene (human health--water & organisms and 
organisms only)
 Chrysene (human health--water & organisms and organisms only)
 Dibenzo(a,h)Anthracene (human health--water & organisms and 
organisms only)
 Fluorene (human health--organisms only)
 Indeno(1,2,3-cd) Pyrene (human health--water & organisms and 
organisms only)
 Isophrone (human health--water & organisms and organisms only)
 alpha-BHC (human health--water & organisms and organisms only)
 beta-BHC (human health--water & organisms and organisms only)
 gamma-BHC (aquatic life--freshwater (chronic))
 alpha-Endosulfan (aquatic life--marine water (acute and 
chronic))
 beta-Endosulfan (aquatic life--marine water (acute and 
chronic))
 Endosulfan Sulfate (human health--water & organisms and 
organisms only)
 Endrin (aquatic life--freshwater (chronic))
 Endrin Aldehyde (human health--water & organisms and organisms 
only)
 Heptachlor Epoxide (aquatic life--freshwater (acute and 
chronic) and marine water (acute and chronic) (human health--water & 
organisms and organisms only)
 PCBs (aquatic life--freshwater (chronic) and marine water 
(chronic)) (human health--water & organisms and organisms only)

    The finalization of the proposed actions for Puerto Rico results in 
the complete removal of Puerto Rico from the NTR.

California

    As discussed in the proposal (77 FR 20585; April 5, 2012), this 
final rule withdraws cyanide criteria applicable to San Francisco Bay, 
California, which EPA approved on July 22, 2008, from the NTR and makes 
conforming edits to the CTR regulations found in 40 CFR part 131. EPA's 
actions which approve California's adopted objectives can be accessed 
at OW docket number EPA-HQ-OW-2012-0095.
    Today, EPA is withdrawing those federal water quality criteria for 
which California's criteria have been determined to meet the 
requirements of the CWA and EPA's implementing regulations at 40 CFR 
part 131. This final rule will result in the withdrawal of saltwater 
aquatic life cyanide \1\ criteria for San Francisco Bay under the NTR 
(with conforming changes to the CTR). However, other criteria for 
cyanide for waters in California that are currently part of the NTR or 
CTR will remain unchanged in the federal regulations.
---------------------------------------------------------------------------

    \1\ In the regulatory text, saltwater criteria for cyanide are 
identified as Columns C1 and C2 of ``Compound 14'' in National 
Toxics Rule at 40 CFR 131.36(b)(1), therefore, the proposed 
withdrawal will remove Column C1 ``pollutant 14'' and Column C2 
``pollutant 14'' from the applicable criteria to Waters of San 
Francisco Bay, at 40 CFR 131.36(d)(10)(ii).
---------------------------------------------------------------------------

II. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    This action withdraws certain federal requirements applicable to 
California, New Jersey, and Puerto Rico, and imposes no regulatory 
requirements or costs on any person or entity, does not interfere with 
the action or planned action of another agency, and does not have any 
budgetary impacts or raise novel legal or policy issues. Thus it has 
been determined that this rule is not a

[[Page 20254]]

``significant regulatory action'' under the terms of Executive Order 
12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to 
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 
2011).

B. Paperwork Reduction Act

    This rule does not impose any new information-collection burden 
because it is administratively withdrawing federal requirements that 
are no longer needed in New Jersey, Puerto Rico, and California. It 
does not include any information-collection, reporting, or 
recordkeeping requirements. The Office of Management and Budget 
(``OMB'') has, however, previously approved the information-collection 
requirements contained in the existing regulations 40 CFR Part 131 
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et 
seq. and has assigned OMB control number 2040-0049. The OMB control 
numbers for EPA's regulations are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act or RFA (5 U.S.C. 601 et seq.), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally requires an agency to prepare a regulatory flexibility 
analysis of any rule subject to notice-and-comment rulemaking 
requirements under the Administrative Procedure Act or any other 
statute, unless the agency certifies that the rule will not have 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of this action on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's or SBA's regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district, or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise, which is independently owned and 
operated and is not dominant in its field.
    This rule imposes no regulatory requirements or costs on any small 
entity. Therefore, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

    Title III of the Unfunded Mandates Reform Act or UMRA (Pub. L. 104-
4) establishes requirements for Federal agencies to assess the effects 
of their regulatory actions on State, Tribal, and local governments and 
the private sector. Today's rule contains no federal mandates under the 
provisions of Title II of the Unfunded Mandates Reform Act of 1995 or 
UMRA, 2 U.S.C. 1531-1538 for State, local, or tribal governments or the 
private sector. The action imposes no enforceable duty on any state, 
local, or tribal governments, or the private sector. Thus, this rule is 
not subject to the requirements of UMRA Sections 202 and 205 for a 
written statement and small government agency plan. Similarly, EPA has 
determined that this rule contains no regulatory requirements that 
might significantly or uniquely affect small governments and is, 
therefore, not subject to UMRA Section 203.

E. Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
State and local government officials have an opportunity to provide 
input in the development of regulatory policies that have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of governments. This rule 
does not have federalism implications. It will not have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government, as specified 
in Executive Order 13132 of August 4, 1999, entitled ``Federalism'' (64 
FR 43255, August 10, 1999). This rule imposes no regulatory 
requirements or costs on any state or local governments. Thus, 
Executive Order 13132 does not apply to this action.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    This rule does not have tribal implications, as specified in 
Executive Order 13175 (65 FR 67249, November 9, 2000). This rule 
imposes no regulatory requirements or costs on any tribal government. 
It does not have substantial direct effects on tribal governments, the 
relationship between the Federal Government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified in Executive Order 13175. 
Thus, Executive Order 13175 does not apply to this action.

G. Executive Order 13045 (Protection of Children From Environmental 
Health and Safety Risks)

    This rule is not subject to Executive Order 13045, entitled 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant as defined in Executive Order 12866 and because EPA does 
not believe the environmental health or safety risks addressed by this 
action present a disproportionate risk to children.

H. Executive Order 13211 (Actions That Significantly Affect Energy 
Supply, Distribution, or Use)

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a 
significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities, unless to do so would be inconsistent with applicable law 
or otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority

[[Page 20255]]

populations and low-income populations in the United States.
    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because: (1) New Jersey's, Puerto Rico's, and 
California's criteria apply to all marine waters in the State, and thus 
EPA does not believe that this action would disproportionately affect 
any one group over another, and (2) EPA has previously determined, 
based on the most current science and EPA's CWA Section 304(a) 
recommended criteria, that New Jersey's, Puerto Rico's, and 
California's adopted and EPA-approved criteria are protective of human 
health and aquatic life.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 3, 2013.

List of Subjects in 40 CFR Part 131

    Environmental protection, Administrative practice and procedure, 
Reporting and recordkeeping requirements, Water pollution control.

    Dated: March 22, 2013.
Bob Perciasepe,
Acting Administrator.
    For the reasons set out in the preamble title 40, Chapter I, part 
131 of the Code of Federal Regulations is amended as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

    Authority:  33 U.S.C. 1251 et seq.

0
2. Section 131.36 is amended as follows:
0
a. Removing and reserving paragraphs (d) (3) and (d) (4).
0
b. Amending the table in paragraph (d)(10)(ii) as follows:
0
i. Adding a new first entry ``Waters of the Sacramento-San Joaquin 
Delta within Regional Water Board 5''; and
0
ii. Revising the entry for ``Waters of San Francisco Bay upstream to 
and including Suisun Bay and the Sacramento-San Joaquin Delta.''
The additions and revisions read as follows:


Sec.  131.36  Toxics criteria for those states not complying with Clean 
Water Act section 303 (c)(2)(B).

* * * * *
    (d) * * *
    (10) * * *
    (ii) * * *

------------------------------------------------------------------------
      Water and use classification             Applicable criteria
------------------------------------------------------------------------
Waters of the Sacramento-San Joaquin     Column C1--polluntant 14.
 Delta within Regional Water Board 5.    Column C2--pollutant 14.
------------------------------------------------------------------------
 
                              * * * * * * *
Waters of San Francisco Bay upstream to     These waters are assigned
 and including Suisun Bay and the            the criteria in:
 Sacramento-San Joaquin Delta.           Column B1--pollutants 5a, 10*
                                          and 14.
                                         Column B2--pollutants 5a, 10*
                                          and 14.
                                         Column D2--pollutants 1, 12,
                                          17, 18, 21, 22, 29, 30, 32,
                                          33, 37, 38, 42-44, 46, 48, 49,
                                          54, 59, 66, 67, 68, 78-82, 85,
                                          89, 90, 91, 93, 95, 96, 98.
 
                              * * * * * * *
------------------------------------------------------------------------

Sec.  131.38  [Amended]


0
3. Section 131.38 is amended by revising footnote ``r'' in the 
``Footnotes to Table in Paragraph (b) (1)'' to read as follows:


Sec.  131.38  Establishment of numeric criteria for priority toxic 
pollutants for the State of California.

* * * * *
    r. These criteria were promulgated for specific waters in 
California in the NTR. The specific waters to which the NTR criteria 
apply include: Waters of the State defined as bays or estuaries 
including the Sacramento-San Joaquin Delta within California Regional 
Water Board 5, but excluding the San Francisco Bay. This section does 
not apply instead of the NTR for these criteria.
* * * * *
[FR Doc. 2013-07784 Filed 4-3-13; 8:45 am]
BILLING CODE 6560-50-P