[Federal Register Volume 78, Number 65 (Thursday, April 4, 2013)]
[Rules and Regulations]
[Pages 20252-20255]
From the Federal Register Online via the Government Publishing 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: [email protected]). 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: [email protected]). 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: [email protected]). 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:
[email protected]).
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