[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71843-71847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30599]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-7416-3]
Withdrawal of Certain Federal Human Health and Aquatic Life Water
Quality Criteria Applicable to Vermont, the District of Columbia,
Kansas and New Jersey
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: In 1992, EPA promulgated Federal regulations establishing
water quality criteria for toxic pollutants for twelve States and two
territories (hereafter ``States''), including Vermont, the District of
Columbia, Kansas and New Jersey. These States have now adopted, and EPA
has approved, human health and aquatic life water quality criteria for
many of these pollutants. In today's action, EPA is amending the
Federal regulations to withdraw certain human health and aquatic life
water quality criteria applicable to these States. EPA published the
proposal to this rulemaking in the Federal Register on March 26, 2001
and provided an opportunity for public comment on the proposed
withdrawal of the criteria, because the States adopted certain criteria
less stringent than the promulgated Federal criteria. Seven comments
were received, but no changes were made to the proposed rulemaking and
EPA is finalizing the proposed withdrawal.
In addition, New Jersey adopted, and EPA approved, additional water
quality criteria no less stringent than the promulgated Federal
criteria. EPA is withdrawing these criteria without notice and comment
rulemaking because New Jersey's adopted criteria are no less stringent
than the promulgated Federal criteria.
DATES: This final rule is effective January 2, 2003.
ADDRESSES: The administrative record for this action in Vermont is
available for public inspection at EPA Region 1, Office of Water, 1
Congress Street, Suite 1100, Boston MA 02114-1505 during normal
business hours of 9 a.m. to 5 p.m. The administrative record for
today's action in the District of Columbia is available at EPA Region
3, Water Protection Division, 1650 Arch Street, Philadelphia PA 19103-
2029 during normal business hours of 9 am to 5 pm. The administrative
record for today's action in Kansas is available for public inspection
at EPA Region 7, Water, Wetland and Pesticides Division, 901 North 5th
Street, Kansas City, Kansas 66101 during normal business hours of 8
a.m. to 4:30 p.m. The administrative record for today's action in New
Jersey is available for public inspection at EPA Region 2, Division of
Environmental Planning and Protection, 290 Broadway, New York, New York
10007 during normal business hours of 8 a.m. to 4:30 p.m.
Comments and EPA's Response to Comments document are also available
for review at EPA Headquarters under docket number W-00-23. These
records are available for inspection and copying from 8:30 a.m. to 4:30
p.m., excluding
[[Page 71844]]
legal holidays at the Water Docket, U.S. EPA, EPA West, 1301
Constitution Ave NW, Room B135, Washington, DC 20460. For access to
Docket Materials, please call (202) 566-2426 to schedule an
appointment.
FOR FURTHER INFORMATION CONTACT: Thomas J. Gardner at EPA Headquarters,
Office of Water (4305T), 1200 Pennsylvania Ave NW., Washington, DC,
20460 (tel: 202-566-0386, fax 202-566-0409) or e-mail
[email protected]. Alternatively, for questions regarding Vermont,
contact Bill Beckwith in EPA's Region 1 at 617-918-1544; for questions
regarding the District of Columbia, contact Garrison Miller in EPA's
Region 3 at 215-814-5745; for questions regarding Kansas, contact Ann
Jacobs in EPA's Region 7 at 913-551-7930; and for questions regarding
New Jersey, contact Wayne Jackson in EPA's Region 2 at 212-637-3807.
SUPPLEMENTARY INFORMATION:
Potentially Regulated Entities
No one is regulated by this rule. This rule merely withdraws
certain Federal water quality criteria applicable in these States.
Background
In 1992, EPA promulgated a final rule (known as the ``National
Toxics Rule'', or ``NTR'') to establish numeric water quality criteria
for 14 States that had not complied fully with section 303(c)(2)(B) of
the Clean Water Act (``CWA'') (57 FR 60848). 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.
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 its criteria. If the State's criteria are no less
stringent than the promulgated Federal criteria, EPA will withdraw its
criteria without notice and comment rulemaking because additional
comment on the criteria is unnecessary. However, if a State adopts
criteria that are less stringent than the Federally promulgated
criteria, but that in the Agency's judgment fully meet the requirements
of the Act, EPA will withdraw the Federally promulgated criteria after
notice and opportunity for public comment. (see 57 FR 60860)
In today's action, EPA is amending the Federal regulations to
withdraw certain human health and aquatic life criteria applicable to
these States. In addition, this action makes certain nonsubstantive
revisions to the regulatory language at 40 CFR 131.36 to reflect format
changes in water quality standards that have occurred in the
corresponding State regulations cited at 40 CFR 131.36.
Vermont
On July 12, 1994, Vermont adopted revisions to its surface water
quality standards (Appendix C, Vermont Water Quality Standards,
effective August 1, 1994). EPA Region 1 approved the State's adoption
of criteria for all toxics contained in the NTR on December 5, 1996,
because they are consistent with the CWA and EPA's implementing
regulations at 40 CFR 131.11. EPA Region 1 requested that the Agency
withdraw the Federal criteria applicable to Vermont for which the State
now has numeric criteria.
In an earlier action, EPA withdrew Vermont from the NTR for certain
human health and aquatic life criteria where the State adopted criteria
that are no less stringent than the Federal criteria (see 65 FR 19659,
April 12, 2000). Today's action addresses an arsenic criterion Vermont
adopted that is less stringent than the corresponding Federal criteria
in the NTR, but that nonetheless meets the requirements of the CWA and
EPA's implementing regulations at 40 CFR 131.11. In reviewing Vermont's
submission, EPA Region 1 concluded that the State's calculation of the
arsenic human health criterion for the consumption of fish (organisms
only) of 1.5 [mu]g/L was scientifically defensible. EPA published a
proposed rule to remove this criterion in the Federal Register on March
26, 2001 (66 FR 1643) and provided an opportunity for public comment,
because the State's adopted criterion was less stringent than the
promulgated Federal criterion. No changes were made to the proposed
rulemaking, and EPA is finalizing the proposed withdrawal as to
Vermont. For a copy of the comments received and EPA's responses,
please see the ``Response to Comments'' document in the administrative
record for this rulemaking. Today's rule removes the arsenic human
health criterion for the consumption of fish (organisms only)
applicable to Vermont. Today's rule leaves in place the Federal
continuous concentration criterion of 0.08 [mu]g/L for gamma-BHC
(Lindane). The current adopted State criterion for this pollutant is
apparently the result of a transcription error resulting in a criterion
10 times higher than the promulgated Federal criterion. EPA will
initiate action to withdraw the Federally promulgated criterion for
this pollutant when the State corrects the error in its standards.
District of Columbia
On March 4, 1994, the District of Columbia adopted revisions to its
surface water quality standards [amended Chapter 11 of Title 21 DCMR
pursuant to the authority set forth in Section 5 of the Water Pollution
Control Act of 1984, D.C. Law 5-188, effective March 16, 1985, D.C.
Code Section 6-924 (1988) and Mayor's Order 85-152], adopting human
health criteria to protect from effects related to fish consumption and
removing the emergency public water supply use designation previously
identified for a segment of the Potomac River. EPA Region 3 approved
these revisions on November 4, 1996 and April 18, 2000, because the
revisions were consistent with the CWA and EPA's implementing
regulations at 40 CFR Part 131.11.
For those waters that did not have the previously-designated
emergency public water supply use designation, EPA has already acted.
That is, EPA withdrew the District of Columbia from the NTR for human
health criteria for the consumption of fish (organism only) because the
District adopted criteria that are no less stringent than the Federal
criteria (see 65 FR 19659, April 12, 2000). For those waters that did
have the previously-designated emergency supply use, EPA Region 3
requested that the Agency withdraw the Federal human health criteria
applicable to the District.
Today's action withdraws the District from the NTR for human health
criteria corresponding to the previously designated emergency public
water supply use. The District removed this use and therefore has no
need for human health criteria for water and organisms. EPA published a
proposed rule to remove these criteria in the Federal Register on March
26, 2001 (66 FR 1643) and provided an opportunity for public comment,
because the removed Federal criteria were not replaced by District
criteria. No changes were made to the proposed rulemaking, and EPA is
finalizing the proposed withdrawal as to the District of Columbia. For
a copy of the comments received and EPA's responses, please see the
``Response to Comments'' document in the administrative record for this
rulemaking.
Kansas
On June 28, 1994, Kansas adopted revisions to its water quality
standards (K.A.R. 28-16-28) regarding both human health and aquatic
life criteria, and submitted them to EPA Region 7 for
[[Page 71845]]
review and approval on October 31, 1994. On February 19, 1998, EPA
Region 7 approved certain new or revised water quality criteria for the
protection of human health and aquatic life because they are consistent
with the CWA and EPA's implementing regulations at 40 CFR 131.11. EPA
Region 7 requested that the Agency withdraw the Federal criteria
applicable to Kansas for which the State now has numeric criteria.
Also, on June 29, 1999, Kansas adopted new and revised ambient water
quality criteria for additional pollutants. They were submitted to EPA
for review and approval on August 10, 1999. On January 19, 2000, EPA
Region 7 approved these additional criteria because they are also
consistent with the CWA and EPA's implementing regulations at 40 CFR
131.11. EPA Region 7 requested that the Agency withdraw the Federal
criteria applicable to Kansas for which the State now has numeric
criteria.
In an earlier action, EPA withdrew Kansas from the NTR for certain
human health and aquatic life criteria where the State adopted criteria
that are no less stringent than the Federal criteria. (See 65 FR 19659,
April 12, 2000) Today's action addresses arsenic and cadmium criteria
Kansas adopted that are less stringent than the corresponding criteria
in the NTR, but that nonetheless meet the requirements of the CWA and
EPA's implementing regulation at 40 CFR 131.11. In reviewing Kansas's
submission, EPA Region 7 concluded that the State's calculation of an
arsenic human health criteria for the consumption of fish (organisms
only) of 20.5 [mu]g/L was scientifically defensible; that the State's
calculation of a cadmium freshwater aquatic life criteria (Criteria
Maximum Concentration) of 4.5 [mu]g/l was scientifically defensible;
that the State's calculation of a cadmium freshwater aquatic life
criteria (Criteria Continuous Concentration) of 2.5 [mu]g/L was
scientifically defensible, and that these criteria meet the
requirements of the CWA and EPA's implementing regulations at 40 CFR
131.11. EPA published a proposed rule to remove these criteria in the
Federal Register on March 26, 2001 (66 FR 1643) and provided an
opportunity for public comment, because the States' adopted criteria
were less stringent than the promulgated Federal criteria. No changes
were made to the proposed rulemaking, and EPA is finalizing the
proposed withdrawal as to Kansas. For a copy of the comments received
and EPA's responses, please see the ``Response to Comments'' document
in the administrative record for this rulemaking. Today's rule removes
the Federal human health criteria for the consumption of fish
(organisms only) for arsenic and the Federal freshwater acute and
chronic cadmium criteria for Kansas.
New Jersey
On August 4, 1994, New Jersey submitted to EPA Region 2 revisions
to its surface water quality standards (New Jersey Administrative Code
7:9B), including aquatic life and human health criteria. New Jersey
adopted aquatic life and human health criteria for many of the toxic
pollutants contained in the NTR and reorganized certain designated use
classifications and requirements pertaining to the Delaware River and
Bay. EPA Region 2 approved the State's criteria (with the exception of
the State's PCB human health criteria) on March 17, 2000, because New
Jersey's 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. EPA Region 2 requested that the Agency withdraw the
Federal criteria applicable to New Jersey for which the State now has
numeric criteria.
For certain pollutants, New Jersey adopted water quality criteria
for aquatic life and human health that are less stringent than the
promulgated Federal criteria, but that nonetheless meet the
requirements of the CWA and EPA's implementing regulations at 40 CFR
131.11. EPA published a proposed rule to remove these criteria in the
Federal Register on March 26, 2001 (66 FR 1643) and provided an
opportunity for public comment because the State's adopted criteria
were less stringent than the promulgated Federal criteria. No changes
were made to the proposed rulemaking, and EPA is finalizing the
proposed withdrawal as to New Jersey. For a copy of the comments
received and EPA's responses, please see the ``Response to Comments''
document in the administrative record for this rulemaking. Today's rule
removes the Federal criteria for these pollutants in New Jersey.
In addition, EPA is removing the Federal criteria for a number of
pollutants for which New Jersey has adopted water quality criteria for
aquatic life and human health that are no less stringent than the
promulgated Federal criteria. EPA has determined that New Jersey's
criteria are no less stringent than the promulgated Federal criteria
either because they are identical, identical when rounded using
conventional rounding techniques, or more stringent than the
promulgated Federal criteria. Today's rule removes the promulgated
Federal criteria for these pollutants without notice and comment
rulemaking because additional comment on the criteria is unnecessary
(see 57 FR 60860). Section 553 of the Administrative Procedure Act,
U.S.C. 553(b)(B) provides that, when an agency for good cause finds
that notice and public procedures are impracticable, unnecessary or
contrary to the public interest, the agency may issue a rule without
providing notice and opportunity for public comment. EPA has determined
that there is good cause for removing the Federal criteria for these
pollutants without prior proposal and opportunity for public comment
because EPA has determined that if a State's adopted and approved
criteria are no less stringent than the promulgated Federal criteria,
additional comment on the criteria is unnecessary. EPA finds that this
constitutes good cause for issuing a final rule removing the Federal
criteria for these pollutants without notice and comment. A list of the
Federal criteria which had been promulgated for New Jersey by the NTR
and are being removed by today's action is included in the Docket for
this rulemaking.
In 1994, New Jersey reorganized certain use classification
requirements pertaining to the Delaware River and Bay, including a
definition of the appropriate points of application for criteria in
these waters. EPA is making corresponding revisions to 40 CFR
131.36(d)(3) to be consistent with the State regulations that the
Federal regulations are intended to augment. In addition, on November
9, 1999, EPA amended the NTR criteria for PCBs-human health (columns D1
and D2 of the table at 40 CFR 131.36) to provide for a total criteria
for this pollutant, in lieu of criteria for individual isomers (see 64
FR 61181). EPA is making corresponding revisions to 40 CFR 131.36(d)(3)
to be consistent with this change. These changes do not result in any
substantive changes to the Federal criteria applicable to New Jersey.
These revisions clarify the existing Federal regulations.
Statutory and Executive Order Review
Executive Order 12866--Regulatory Planning and Review
This action withdraws Federal requirements applicable to Vermont,
the District of Columbia, Kansas and New Jersey 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
[[Page 71846]]
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 OMB review.
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 Vermont, the District of Columbia, Kansas and New Jersey.
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.
Unfunded Mandates Reform Act
Title III of the Unfunded Mandates Reform Act (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 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.
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.
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'' (65 FR 67249, November 6, 2000).
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.
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.
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.
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) and will be effective on January 2, 2003.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: November 26, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble 40 CFR part 131 is amended
as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Sec. 131.36 [Amended]
1. Section 131.36 is amended by:
a. Revising the table in paragraph (d)(2)(ii).
b. Revising the table in paragraph (d)(3)(ii).
c. Revising the table in paragraph (d)(5)(ii).
d. Revising the table in paragraph (d)(9)(ii).
The revisions read as follows:
Sec. 131.36 Toxics criteria for those states not complying with Clean
Water Act Section 303(c)(2)(B).
(d) * * *
(2) * * *
(ii) * * *
[[Page 71847]]
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Use classification Applicable criteria
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1. Classes A1, A2, B1, B2, B3.......... These classification are
assigned the criterion in:
Column B2--105.
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* * * * *
(3) * * *
(ii) * * *
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Use classification Applicable criteria
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1. Freshwater Pinelands, FW2........... These classifications are each
assigned the criteria in:
i. Column B1--2, 4,
5a, 5b, 6-11, 13.
ii. Column B2--2, 4,
5a, 5b, 6-10, 13.
iii. Column D1-- 125b
at a 10-\6\ risk level.
iv. Column D2--125b at
a 10-\6\ risk level.
v. Column D2--23, 30,
37, 42, 87, 89, 93 and 105 at
a 10-\5\ risk level.
2. PL (Saline Water Pinelands), SE1, These classifications are each
SE2, SE3, SC, Delaware Bay Zone 6. assigned the criteria in:
i. Column C1--2, 4,
5b, 6-11, 13.
ii. Column C2--2, 4,
5b, 6-10, 13.
iii. Column D1-- 125b
at a 10-\6\ risk level.
iv. Column D2--125b at
a 10-\6\ risk level.
v. Column D2--23, 30,
37, 42, 87, 89, 93 and 105 at
a 10-\5\ risk level.
3. Delaware River Zones 1C, 1D, 1E, 2, i. Column B1--none.
3, 4, and 5.
ii. Column B2--none.
iii. Column D1--none.
iv. Column D2--none.
4. Delaware River Zones 3, 4, and 5.... These classifications are each
assigned the criteria in:
i. Column C1--none.
ii. Column C2--none.
iii. Column D2--none.
------------------------------------------------------------------------
* * * * *
(5) * * *
(ii) * * *
------------------------------------------------------------------------
Use classification Applicable criteria
------------------------------------------------------------------------
1. Class C............................. This classification is assigned
the additional criteria in:
Column B2; 10, 118,
126.
------------------------------------------------------------------------
* * * * *
(9) * * *
(ii) * * *
------------------------------------------------------------------------
Use classification Applicable criteria
------------------------------------------------------------------------
1. Sections (2)(A), (2)(B), (2)(C), (4) These classifications are each
assigned criteria as follows:
i. Column B1, 2.
ii. Column D2, 12, 21,
29, 39, 46, 68, 79, 81, 86,
93, 104, 114, 118.
2. Section (3)......................... This classification is assigned
all criteria in:
Column D1, all except 1, 9, 12, 14, 15, 17, 22,
33, 36, 39, 44, 75, 77, 79,
90, 112, 113, and 115.
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[FR Doc. 02-30599 Filed 12-2-02; 8:45 am]
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