[Federal Register Volume 69, Number 209 (Friday, October 29, 2004)]
[Rules and Regulations]
[Pages 63079-63083]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24242]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[OW-2004-0006; FRL-7825-1]
Water Quality Standards; Withdrawal of Certain Federal Water
Quality Criteria Applicable to Alaska, Arkansas, and Puerto Rico
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: EPA is taking final action to amend the Federal regulations to
withdraw certain water quality criteria applicable to Alaska, Arkansas,
and Puerto Rico. In 1992, EPA promulgated Federal regulations, through
the National Toxics Rule (``NTR''), establishing water quality criteria
for toxic pollutants for 12 states and two territories, including
Alaska, Arkansas, and Puerto Rico. These two states and one territory
have now adopted, and EPA has approved, certain water quality criteria
included in the NTR. Since Alaska, Arkansas, and Puerto Rico now have
criteria, effective under the Clean Water Act, for the same priority
toxic pollutants in the NTR, 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 Alaska, Arkansas, and Puerto Rico.
EPA is withdrawing its criteria without a notice and comment rulemaking
because the adopted criteria are no less stringent than Federal
criteria (see 65 FR 19659, April 12, 2000).
DATES: This final rule is effective on October 29, 2004.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. OW-2004-0006. All documents in the docket are listed in the EDOCKET
index at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available, docket
materials are available either electronically in EDOCKET or in hard
copy at the following: The administrative record for the withdrawal of
Alaska's federally promulgated criteria is also available for public
inspection at EPA Region 10, Office of Water, 1200 Sixth Avenue,
Seattle, WA 98101, during normal business hours of 8 a.m. to 4:30 p.m.
Pacific time. The administrative record for the withdrawal of
Arkansas's federally promulgated criteria is also available for public
inspection at EPA Region 6, Water Quality Protection Division, 1445
Ross Avenue, Dallas, TX 75202, during normal business hours of 7:30
a.m. to 11 a.m. and 1 p.m. to 4:30 p.m. central time. The
administrative record for the withdrawal of Puerto Rico's Federally
promulgated criteria is also available for public inspection at EPA
Region 2, 290 Broadway, New York, NY 10007, during normal business
hours of 9 a.m. to 4:30 p.m. eastern time Monday through Thursday, and
9 a.m.-1 p.m. eastern time on Friday.
FOR FURTHER INFORMATION CONTACT: For questions regarding this action
with respect to Alaska, contact Sally Brough with EPA's Region 10 at
206-553-1295. For questions regarding this action with respect to
Arkansas, contact Russell Nelson with EPA's Region 6 at 214-665-6646.
For questions regarding this action with respect to Puerto Rico,
contact Wayne Jackson with EPA's Region 2 at 212-637-3807. For general
and administrative concerns, contact Stephanie Thornton at EPA
Headquarters, Office of Water (4305T), 1200 Pennsylvania Avenue, NW.,
Washington, DC 20460 (202-566-0606).
SUPPLEMENTARY INFORMATION:
I. General Information
No one is regulated by this rule. This rule withdraws certain
Federal water quality criteria applicable to Alaska, Arkansas, and
Puerto Rico.
II. Background
In 1992, EPA promulgated the ``National Toxics Rule'' (``NTR'') to
establish numeric water quality criteria for 12 states and two
Territories (hereafter ``States'') that had failed to comply fully with
section 303(c)(2)(B) of the Clean Water Act (``CWA'') (57 FR 60848,
December 22, 1992). The criteria, codified at 40 CFR 131.36, became the
applicable water quality standards in those 14 jurisdictions for all
purposes and programs under the CWA effective February 5, 1993.
As described in the preamble to the final NTR, when a State adopts,
and EPA approves, water quality criteria that meet the requirements of
the CWA, EPA will issue a rule amending the NTR to withdraw the Federal
criteria applicable to that State. If the State's criteria are no less
stringent than the promulgated Federal criteria, EPA will withdraw its
criteria without notice and comment because additional comment on the
criteria is unnecessary (see 65 FR 19659, April 12, 2000). However, if
a State adopts criteria that are less stringent than the Federally-
promulgated criteria, but which the Agency judges to meet the
requirements of the Act, EPA will seek public comment before
withdrawing the Federally-promulgated criteria (see 57 FR 60860,
December 22, 1992). Section 553 of the Administrative Procedure Act, 5
U.S.C. 553(b)(B), provides that, when an agency for good cause finds
that notice and public comment procedures are impracticable,
unnecessary or contrary to the public interest, the agency may issue a
rule without providing notice and opportunity for public comment.
There is good cause for making today's rule final without prior
proposal and comment because, being identical or more stringent, the
States' criteria are no less stringent than the Federal regulations.
For the same reason, and because this rule relieves a Federal
restriction, good cause exists to waive the requirement for a 30-day
period before the amendment becomes effective. Therefore, the amendment
is immediately effective. This rule does not remove any water quality
protections. It removes a Federal regulation that duplicates State
regulation.
Alaska
On March 30 and April 27, 1999, Alaska adopted revisions to its
surface water quality standards (18 AAC 70). Alaska submitted the
revisions to EPA for approval by letter dated May 10, 1999, and EPA
received the revisions on May 13, 1999.
EPA Region 10 approved the State's freshwater and marine water
aquatic life criteria for certain NTR pollutants on September 28, 2001,
because they were identical to the NTR values and were consistent with
both the CWA and EPA's implementing regulations at 40 CFR part 131.
These pollutants are Nickel (acute), Selenium (acute and
[[Page 63080]]
chronic), Zinc (acute), Pentachlorophenol (acute), and Toxaphene
(acute). Today, EPA is withdrawing Federal water quality criteria
applicable to Alaska for the freshwater and marine aquatic life
criteria.
Arkansas
On January 23,1998, Arkansas adopted revisions to its surface water
quality standards (Regulation 2, Establishing Water Quality Standards
for the Surface Waters of the State of Arkansas, Minute Order 98-03).
Arkansas adopted acute and/or chronic freshwater aquatic life criteria
as noted and conversion factors for these metals contained in the NTR:
Cadmium (acute and chronic),
Chromium (III) (acute and chronic),
Chromium (VI) (acute and chronic),
Copper (acute and chronic),
Lead (acute and chronic),
Mercury (acute and chronic),
Nickel (acute and chronic),
Selenium (acute and chronic),
Silver (acute), and Zinc (acute and chronic).
Arkansas also adopted acute and chronic freshwater aquatic life
criteria for Cyanide. EPA Region 6 approved the State's dissolved
metals criteria and Cyanide criteria on May 17, 2001, because
Arkansas's numeric criteria were consistent with both the CWA and EPA's
implementing regulations at 40 CFR part 131. With the adoption of these
numeric criteria, Arkansas complied with the requirements of section
303(c)(2)(B) of the CWA to have numeric criteria for toxic pollutants.
Today, EPA is withdrawing Arkansas from the NTR for those criteria
and, as a result, completely removing Arkansas from the NTR.
Puerto Rico
On September 21, 1990, EPA Region 2 received revisions to Puerto
Rico's water quality standards. The Chairman of the Puerto Rico
Environmental Quality Board (PREQB) informed EPA that it may not be the
final submission, since PREQB had not completed its public hearing
process. Because of this caveat, and because Puerto Rico had not
submitted the requisite certification from its Secretary of Justice as
required by 40 CFR 131.6(e), EPA Region 2 did not act on these
revisions immediately. As previously noted, EPA included Puerto Rico in
the NTR in 1992, in large part because EPA did not consider Puerto
Rico's 1990 revisions adopted. The Commonwealth's Secretary of Justice
ultimately submitted the required certification to EPA on February 25,
2002.
EPA took final action on all new and revised provisions of the 1990
Puerto Rico Water Quality Standards Regulation (PRWQSR) on March 28,
2002, after it received the required certification. EPA Region 2
approved Puerto Rico's numeric criteria because they were consistent
with the CWA and EPA's implementing regulations at 40 CFR 131.11. For
all of these pollutants, the criteria were no less stringent than the
promulgated Federal criteria in the NTR.
Meanwhile, in October 2001, Puerto Rico began an effort to revise
the PRWQSR. This effort included adopting numerous chemical-specific
numeric criteria for toxic pollutants contained in the NTR. EPA Region
2 approved Puerto Rico's criteria on June 26, 2003, since the adopted
numeric criteria for the protection of aquatic life and human health
were consistent with the CWA and EPA's implementing regulations at 40
CFR 131.11. With few exceptions, the adopted criteria were identical to
EPA's April 1999 national recommended water quality criteria. In most
cases, these criteria were no less stringent than the promulgated
Federal criteria in the NTR. Puerto Rico adopted several criteria that
are less stringent than the promulgated Federal criteria in the NTR.
Consequently, EPA is not including any of these pollutants in today's
withdrawal of NTR criteria applicable to waters in Puerto Rico. The
criteria adopted by Puerto Rico and approved by EPA but not included in
today's rulemaking are:
Dichlorobromomethane,
Benzo(a)Anthracene,
Benzo(a)Pyrene,
Benzo(b)Flouranthene,
Benzo(k)Flouranthene,
Chrysene,
Dibenzo(a,h)Anthracene,
Indeno(1,2,3-cd)Pyrene, and
Isophrone.
Today, EPA is removing Puerto Rico from the NTR only for those
pollutants whose criteria are no less stringent than those in the NTR.
EPA is removing Puerto Rico from the NTR for the following
pollutants:
Antimony (human health--water & organism and organism
only),
Arsenic (all),
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)),
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), aquatic life--
marine water (acute), and human health--water & organism and organism
only),
Nickel (all),
Selenium (aquatic life--freshwater (acute and chronic) and
marine water (acute and chronic)),
Silver (aquatic life--freshwater (acute) and aquatic
life--marine water (acute)),
Zinc (aquatic life--freshwater (acute and chronic) and
marine water (acute and chronic)),
Cyanide (all),
Asbestos (human health--water & organism),
Acrolein (human health--water & organism and organism
only),
Acrylonitrile (human health--water & organism and organism
only),
Benzene (human health--water & organism and organism
only),
Bromoform (human health--water & organism and organism
only),
Carbon Tetrachloride (human health--water & organism and
organism only),
Chlorobenzene (human health--water & organism and organism
only),
Chlorodibromomethane (human health--water & organism and
organism only),
regulatory requirements that might significantly or uniquely affect
small governments and is therefore not subject to UMRA section 203.
Chloroform (human health--water & organism and organism
only),
1,2-Dichloroethane (human health--water & organism and
organism only),
1,1-Dichloroethylene (human health--water & organism and
organism only),
1,3-Dichloropropylene (human health--water & organism and
organism only),
Ethylbenene (human health--water & organism and organism
only),
Methyl Bromide (human health--water & organism and
organism only),
Methylene Chloride (human health--water & organism and
organism only),
1,1,2,2-Tetrachloroethane (human health--water & organism
and organism only),
Tetrachloroethylene (human health--water & organism and
organism only),
Toluene (human health--water & organism and organism
only),
1,1,2-Trichloroethane (human health--water & organism and
organism only),
[[Page 63081]]
Trichloroethylene (human health--water & organism and
organism only),
Vinyl Chloride (human health--water & organism and
organism only),
2,4-Dichlorophenol (human health--water & organism and
organism only),
2-Methyl-4,6-Dinitrophenol (human health--water & organism
and organism only),
Pentachlorophenol (human health--water & organism and
organism only),
Phenol (human health--water & organism and organism only),
2,4,6-Trichlorohenol (human health--water & organism and
organism only),
Anthracene (human health--water & organism and organism
only),
Benzidene (human health--water & organism and organism
only),
Bis (2-Chloroethyl) Ether (human health--water & organism
and organism only),
Bis (2-Chloroisopropyl) Ether (human health--water &
organism and organism only),
Bis (2-Ethylhexyl) Phthalate (human health--water &
organism and organism only),
1,2-Dichlorobenzene (human health--water & organism and
organism only),
1,3-Dichlorobenzene (human health--water & organism and
organism only),
1,4-Dichlorobenzene (human health--water & organism and
organism only),
3,3-Dichlorobenzidene (human health--water & organism and
organism only),
Diethyl Phthalate (human health--water & organism and
organism only),
Dimethyl Phthalate (human health--water & organism and
organism only),
Di-n-Butyl-Phthalate (human health--water & organism and
organism only),
2,4-Dinitrotoluene (human health--water & organism and
organism only),
1,2-Diphenylhydrazine (human health--water & organism and
organism only),
Fluoranthene (human health--water & organism and organism
only),
Fluorene (human health (water & organism)),
Hexachlorobenzene (human health--water & organism and
organism only),
Hexachlorbutadiene (human health--water & organism and
organism only),
Hexachlorocyclopentadiene (human health--water & organism
and organism only),
Hexachloroethane (human health--water & organism and
organism only),
Nitrobenzene (human health--water & organism and organism
only),
N-Nitroso-dimethylamine (human health--water & organism
and organism only),
N-Nitrosodiphenylamine (human health--water & organism and
organism only),
Pyrene (human health--water & organism and organism only),
Aldrin (aquatic life--freshwater (acute), aquatic life--
marine water (acute), and human health--water & organism and organism
only),
gamma-BHC (aquatic life--freshwater (acute), aquatic
life--marine water (acute), and human health--water & organism and
organism only),
Chlordane,
4,4-DDT, 4,4-DDE (human health--water & organism and
organism only),
4,4-DDD (human health--water & organism and organism
only),
Dieldrin (all),
a-Endosulfan (aquatic life--freshwater (acute and chronic)
and human health--water & organism and organism only),
b-Endosulfan (aquatic life--freshwater (acute and chronic)
and human health--water & organism and organism only),
Endrin (aquatic life--freshwater (acute), aquatic life--
marine (acute and chronic), and human health--water & organism and
organism only),
Heptachlor (all), and
Toxaphene (all).
III. Statutory and Executive Order Reviews
A. Executive Order 12866--Regulatory Planning and Review
This action withdraws Federal requirements applicable to Alaska,
Arkansas, 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 ``significant regulatory action''
under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993)
and is therefore not subject to the Office of Management and Budget
(OMB) review.
B. Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 because it is
administratively withdrawing Federal requirements that no longer need
to apply to Alaska, Arkansas, and Puerto Rico.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (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 a rule that is 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.
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 (UMRA) (Public Law
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 regulatory provisions of Title II of the UMRA) for
State, Tribal, or local governments or the private sector because it
imposes no enforceable duty on any of these entities. Thus, today's
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
imposes no regulatory requirements or costs on any State or local
governments; therefore, it does not have Federalism implications under
Executive Order 13132.
[[Page 63082]]
F. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Again, this rule imposes no regulatory requirements or costs on any
Tribal government. It does not have substantial direct effects on
Tribal governments, on 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, entitled ``Consultation and Coordination with
Indian Tribal Governments'' (59 FR 22951, November 6, 2000).
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 and EPA has no reason to 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
The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply
because this rule does not involve technical standards.
J. 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. Section 808 allows the issuing agency to make a rule
effective sooner than otherwise provided by the CRA if the agency makes
a good cause finding that notice and public procedure is impracticable,
unnecessary or contrary to public interest. This determination must be
supported by a brief statement. 5 U.S.C. 808(2). As stated previously,
EPA has made such a good cause finding, including reasons therefore,
and established an effective date of October 29, 2004. 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. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: September 30, 2004.
Michael O. Leavitt,
Administrator.
0
For reasons set out in the preamble of title 40, chapter I, 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.
Sec. 131.36 [Amended]
0
2. Section 131.36 is amended as follows:
0
a. Revising the table in paragraph (d)(4)(ii),
0
b. Revising the table in paragraph (d)(12)(ii), and
0
c. Removing and reserving paragraph (d)(8).
Sec. 131.36 Toxics criteria for those states not complying with Clean
Water Act section 303(c)(2)(B).
* * * * *
(d) * * *
(4) * * *
(ii) * * *
------------------------------------------------------------------------
Use classification Applicable criteria
------------------------------------------------------------------------
Class SD............................... Column B1-- 118.
Column B2--s 8, 105,
115, 118, 119, 120, 121, 122,
123,124, 125a, 125b.
Column D1--s 12, 16,
27, 60, 61, 62, 64, 73, 74,
92,93, 103, 104, 114, 116,
118, 119, 120, 121, 122,
123,124, 125a, 125b.
Class SB, Class SC..................... Column C1--s 5b, 112,
113, 118.
Column C2--s 5b, 8,
112, 113, 118, 119, 120, 121,
122,123, 124, 125a, 125b.
Column D2--s 12, 16,
27, 60, 61, 62, 64, 73, 74,
87,92, 93, 103, 104, 114, 116,
118, 119, 120, 121, 122,123,
124, 125a, 125b.
------------------------------------------------------------------------
* * * * *
(12) * * *
(ii) * * *
------------------------------------------------------------------------
Use classification Applicable criteria
------------------------------------------------------------------------
(1)(A)(i).............................. Column D1--s 16, 18-
21, 23, 26, 27, 29, 30, 32,
37, 38, 42-44, 53, 55, 59-62,
64, 66, 68, 73, 74, 78, 82,
85, 88, 89, 91-93, 96, 98, 102-
105, 107-111, 117-126.
(1)(A)(iii)............................ Column D2--s 14, 16,
18-21, 22, 23, 26, 27, 29, 30,
32, 37, 38, 42-44, 46, 53, 54,
55, 59-62, 64, 66, 68, 73, 74,
78, 82, 85, 88-93, 95, 96, 98,
102-105, 107-111, 115-126.
(1)(B)(i), (1)(B)(ii), (1)(C).......... Column D2--s 14, 16,
18-21, 22, 23, 26, 27, 29, 30,
32, 37, 38, 42-44, 46, 53, 54,
55, 59-62, 64, 66, 68, 73, 74,
78, 82, 85, 88-93, 95, 96, 98,
102-105, 107-111, 115-126.
[[Page 63083]]
(2)(A)(i), (2)(B)(i), and (2)(B)ii, Column D2--s 14, 16,
(2)(C), (2)(D). 18-21, 22, 23, 26, 27, 29, 30,
32, 37, 38, 42-44, 46, 53, 54,
55, 59-62, 64, 66, 68, 73, 74,
78, 82, 85, 88-93, 95, 96, 98,
102-105, 107-111, 115-126.
------------------------------------------------------------------------
* * * * *
[FR Doc. 04-24242 Filed 10-28-04; 8:45 am]
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