[Federal Register Volume 72, Number 130 (Monday, July 9, 2007)]
[Rules and Regulations]
[Pages 37109-37115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-13207]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2007-0467; FRL-8337-2]
RIN NA2040
Withdrawal of Federal Marine Aquatic Life Water Quality Criteria
for Toxic Pollutants Applicable to Washington State
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is proposing to amend the Federal regulations to withdraw
its 1992 federally promulgated marine copper and cyanide chronic
aquatic life water quality criteria for Washington State, thereby
enabling Washington to implement its current EPA-approved chronic
numeric criteria for copper and cyanide that cover all marine waters of
the State.
In 1992, EPA promulgated Federal regulations establishing water
quality criteria for priority toxic pollutants for 12 States, including
Washington, and two Territories that had not fully complied with the
Clean Water Act (CWA). These regulations are known as the ``National
Toxics Rule'' or ``NTR.'' On November 18, 1997, Washington adopted
revised chronic marine aquatic life criteria for copper and cyanide,
the only two marine aquatic life priority toxic pollutants in the NTR
applicable to Washington. These revisions included a chronic marine
aquatic life water quality criterion for copper for all marine waters
and a chronic site-specific cyanide criterion for the Puget Sound. EPA
approved these criteria on February 6, 1998. On August 1, 2003,
Washington adopted revisions to its water quality standards, including
a chronic marine criterion for cyanide for all marine waters except the
Puget Sound. EPA approved this criterion on May 23, 2007. Since
Washington now has marine copper and cyanide chronic aquatic life
criteria effective under the CWA that EPA has approved as protective of
Washington's designated uses, EPA is proposing to amend the NTR to
withdraw the federally promulgated criteria.
DATES: This rule is effective on September 7, 2007 without further
notice, unless EPA receives adverse comment by August 8, 2007. If EPA
receives such comment, EPA will publish a timely withdrawal in the
Federal Register informing the public that this rule, or the relevant
provisions of this rule, will not take effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2007-0467, by one of the following methods:
www.regulations.gov: Follow the on-line instructions for
submitting comments.
E-mail: [email protected].
Mail to either: Water Docket, USEPA, Mailcode: 2822T, 1200
Pennsylvania Ave., NW., Washington, DC 20460 or Becky Lindgren,
Washington Marine Aquatic Life NTR Removal, U.S. EPA, Region 10, OWW-
131, 1200 Sixth Avenue, Seattle, WA 98101, Attention Docket ID No. EPA-
HQ-OW-2007-0467.
[[Page 37110]]
Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Ave., NW., Washington, DC, 20004 or Becky Lindgren,
Washington Marine Aquatic Life NTR Removal, 1200 Sixth Avenue, Seattle,
WA 98101, Attention Docket ID No. EPA-HQ-OW-2007-0467. Such deliveries
are only accepted during the Docket's normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2007-
0467. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit information that you consider to
be CBI or otherwise protected through www.regulations.gov or e-mail.
The www.regulations.gov Web site is an ``anonymous access'' system,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through www.regulations.gov
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available
on the Internet. If you submit an electronic comment, EPA recommends
that you include your name and other contact information in the body of
your comment and with any disk or CD-ROM you submit. If EPA cannot read
your comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. 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 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 Avenue, 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 U.S. EPA, 1200 Sixth Avenue, Seattle, WA
98101. Docket materials can be accessed from 9 a.m. until 3 p.m.,
Monday through Friday, excluding legal holidays. The telephone number
is (206) 553-0775.
FOR FURTHER INFORMATION CONTACT: Becky Lindgren, U.S. EPA, Region 10,
1200 Sixth Avenue, Seattle, WA 98101 (telephone: 206-553-1774 or e-
mail: [email protected]) or Claudia Fabiano, U.S. EPA
Headquarters, Office of Science and Technology, 1200 Pennsylvania
Avenue, NW., Mail Code 4305T, Washington, DC 20460 (telephone: 202-566-
0446 or e-mail: [email protected]).
SUPPLEMENTARY INFORMATION: This section is organized as follows:
Table of Contents
I. Why Is EPA Using a Direct Final Rule?
II. General Information
A. What Entities May be Affected by this Action?
B. What Should I Consider as I Prepare My Comments for EPA?
III. Background
A. What Are the Applicable Federal Statutory and Regulatory
Requirements?
B. Why Is EPA Withdrawing Federal Marine Aquatic Life Water
Quality Criteria for Toxic Pollutants Applicable to Washington?
C. What are the Federal Marine Aquatic Life Water Quality
Criteria for Toxic Pollutants Applicable to Washington that EPA is
Withdrawing?
IV. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination with
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children from
Environmental Health Risks and Safety Risks)
H. Executive Order 13211 (Actions that Significantly Affect
Energy Supply, Distribution or Use)
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898 (Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations)
K. Congressional Review Act
I. Why Is EPA Using a Direct Final Rule?
EPA is publishing this rule without a prior proposed rule because
the Agency views this action as noncontroversial and anticipates no
adverse comment. Because the public had the opportunity to comment on
Washington State's adoption of marine copper and cyanide aquatic life
criteria, EPA does not anticipate any adverse comments on the
withdrawal of Washington from the NTR, located at 40 CFR 131.36 (57 FR
60848), for those criteria. For this reason, EPA is taking this action
in a direct final rule. However, in the ``Proposed Rules'' section of
the Federal Register, EPA is publishing a separate notice that will
serve as a parallel proposed rule to withdraw the same Federal marine
aquatic life water quality criteria for toxic pollutants applicable to
Washington in the event that adverse comments are received on all or
distinct provisions of this direct final rule.
If EPA receives any adverse comment regarding any or all provisions
of this direct final rule, the Agency will publish a timely withdrawal
in the Federal Register informing the public that this direct final
rule, or the relevant provisions of this direct final rule, will not
take effect. In that event, EPA would address all public comments in
any subsequent final rule based on the parallel proposed rule. Any
provisions of this direct final rule that are not timely withdrawn by
EPA will become effective on September 7, 2007, notwithstanding adverse
comment on any other provision. EPA will not institute a second comment
period on this direct final rule. Any parties interested in commenting
must do so at this time. For further information about commenting on
this rule, see the ADDRESSES section of this document.
II. General Information
A. What Entities May Be Affected by This Action?
This direct final rule, if made final, will withdraw federally
promulgated marine copper and cyanide aquatic life water quality
criteria for waters in Washington State. Entities discharging copper or
cyanide pollutants to the marine surface waters of Washington could be
affected by this rulemaking since water quality standards are used in
determining National Pollutant Discharge Elimination System (NPDES)
permit limits, CWA section 404 dredge and fill permits, and other
activities requiring CWA section 401 certification.
[[Page 37111]]
Categories and entities that may ultimately be affected include:
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Category Examples of potentially affected entities
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Industry..................... Industries discharging pollutants to
surface waters in Washington State.
Municipalities............... Discharges from publicly-owned facilities
such as publicly-owned treatment works
and water filtration facilities.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding NPDES-regulated entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action. Other
types of entities not listed in the table could also be affected. To
determine whether your facility may be affected by this action, you
should carefully examine today's proposed rule. If you have questions
regarding the applicability of this action to the particular entity,
consult the person listed in the preceding FOR FURTHER INFORMATION
CONTACT section.
B. What Should I Consider as I Prepare My Comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
www.regulations.gov or e-mail. Clearly mark the part or all of the
information that you claim to be CBI. For CBI information in a disk or
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as
CBI and then identify electronically within the disk or CD-ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations (CFR) part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
III. Background
A. What Are the Applicable Federal Statutory and Regulatory
Requirements?
In 1992, EPA promulgated a final rule (known as the ``National
Toxics Rule'', or ``NTR'') to establish numeric water quality criteria
for toxic pollutants for 12 States and two Territories (hereinafter
referred to as ``States'') that had failed to comply fully with section
303(c)(2)(B) of the Clean Water Act (``CWA'') (57 FR 60848, 60910,
December 22, 1992). Section 303(c)(2)(B) required States to adopt
numeric water quality criteria for those priority toxic pollutants for
which EPA had published recommended water quality criteria pursuant to
Section 304(a) of the Act. The criteria that EPA promulgated in the NTR
were based on EPA's then current Section 304(a) recommended water
quality criteria. The NTR criteria are codified at 40 CFR 131.36 and
became the applicable water quality criteria in those 14 States for CWA
purposes on February 5, 1993.
As described in the preamble to the final NTR, when a State adopts,
and EPA approves, numeric water quality criteria, thus meeting the
requirements of section 303(c)(2)(B) of the CWA, EPA will issue a rule
amending the NTR to withdraw the Federal criteria for that State. See
57 FR 60860. 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. 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
provide an opportunity for public comment before withdrawing the
federally promulgated criteria. See 57 FR 60860.
B. Why Is EPA Withdrawing Federal Marine Aquatic Life Water Quality
Criteria for Toxic Pollutants Applicable to Washington?
On November 18, 1997, Washington adopted revisions to its surface
water quality standards. Washington adopted a chronic marine aquatic
life water quality criterion for copper for all marine waters and a
chronic site-specific cyanide criterion for the Puget Sound. EPA Region
10 approved these criteria on February 6, 1998, finding that they were
consistent with the CWA and EPA's implementing regulations at 40 CFR
part 131. On August 1, 2003, Washington adopted revisions to its water
quality standards, including a revised chronic cyanide criterion for
all marine waters except the Puget Sound. EPA Region 10 approved this
revised criterion on May 23, 2007, finding that it was consistent with
the CWA and EPA's implementing regulations at 40 CFR part 131. By
adopting chronic numeric criteria for copper and cyanide that are
applicable to all marine waters of the State, Washington has complied
with the requirements of section 303(c)(2)(B) of the CWA, which
requires that states adopt numeric criteria for toxic pollutants for
which EPA has published recommended water quality criteria and the
discharge or presence of which in the affected waters could reasonably
be expected to interfere with those designated uses adopted by the
State, as necessary to support such designated uses. This fact, plus
EPA's approval of Washington's numeric criteria as protective of
designated uses, makes the federally promulgated criteria no longer
necessary for compliance with the CWA. Therefore, EPA has determined
that the federally promulgated criteria are no longer needed and is
proposing to withdraw the federally promulgated criteria for
Washington.
C. What Are the Federal Marine Aquatic Life Water Quality Criteria for
Toxic Pollutants Applicable to Washington That EPA Is Withdrawing?
In this action, EPA is withdrawing Washington from the NTR for
those
[[Page 37112]]
marine cyanide and copper chronic criteria that the State has adopted
and EPA has approved. Table 1 provides a summary of the marine copper
and cyanide chronic aquatic life values under the NTR, Washington's
1997 criteria, and EPA's current recommended 304(a) criteria.
1. Chronic Marine Aquatic Life Criterion for Cyanide Applicable to All
Waters Except Puget Sound
Washington has adopted, and EPA has approved, a marine aquatic life
criterion for cyanide of 1 microgram per liter ([mu]g/l) chronic
applicable to all marine waters except the Puget Sound. This criterion
is identical to the federally promulgated cyanide criterion in the NTR,
which is 1 [mu]g/l for the chronic value. This criterion is also
identical to EPA's Section 304(a) recommended water quality criterion.
Because Washington's criterion is identical to, i.e., no less stringent
than, the federally promulgated criterion in the NTR, the Federal
criterion is no longer necessary for compliance with the CWA, and EPA
is withdrawing it with this action. See 57 FR 60860.
2. Chronic Marine Aquatic Life Criterion for Cyanide Applicable to
Puget Sound
Washington has adopted and EPA has approved a chronic site-specific
marine aquatic life criterion for cyanide. The chronic site-specific
cyanide criterion is 2.8 [mu]g/l and is only applicable to the waters
within the borders of Puget Sound (the waters east of a line from Point
Roberts to Lawrence Point to Green Point to Deception Pass, and south
from Deception Pass and of a line from Partridge Point to Point
Wilson). This value is less stringent than the cyanide value
promulgated in the NTR and less stringent than the value listed as part
of EPA's current recommended CWA section 304(a) criteria. Despite this
fact, EPA worked closely with Washington in developing the chronic
site-specific cyanide criterion, reviewing the test methodology and
resulting data, and approved the criterion on February 6, 1998. See EPA
Region 10 approval of Washington State's site-specific criteria for the
Puget Sound, February 6, 1998.
The Federal water quality standards regulation at 40 CFR 131.11
requires states to adopt water quality criteria protective of
applicable designated uses. Section 131.11(b)(1) states that states
should, in adopting criteria, establish numerical values based on
Section 304(a) Guidance, Section 304(a) Guidance modified to reflect
site-specific conditions, or other scientifically defensible methods.
Regarding cyanide, Washington established site-specific chronic numeric
criterion based on EPA's CWA section 304(a) Guidance modified to
reflect site-specific conditions in the Puget Sound, which EPA approved
on February 6, 1998.
Site-specific criteria, as with all water quality criteria, must be
based on a sound scientific rationale and ensure protection of the
applicable designated use. Washington's site-specific marine cyanide
criterion for Puget Sound was based on modifying EPA's methodology for
deriving aquatic life criteria by using species found in Puget Sound.
In developing the site-specific criteria for Puget Sound, Washington
substituted toxicity information from all species in the Cancer genus
found within Puget Sound for the toxicity data representing an
exclusively east coast species of crab (Cancer irroratus). In reviewing
the methodology utilized by Washington in performing this substitution,
EPA found that it was scientifically defensible because it used the
same scientific methodology followed in the development of EPA's own
section 304(a) recommended chronic criteria for cyanide, and because
the methodology Washington used in developing the site-specific
criterion used all the same genus that were recommended in EPA's
Guidelines for Deriving Numerical National Water Quality Criteria for
the Protection of Aquatic Organisms and Their Uses (EPA, 1985, PB85-
227049). Therefore, as described in EPA's February 6, 1998 approval
letter, EPA approved the State's site-specific criterion based on EPA's
conclusion that these criterion were scientifically defensible, as well
as protective of aquatic life in the Puget Sound.
Consequently, Washington now has a chronic marine aquatic life
water quality criterion for cyanide that meets the requirements of the
statute and federal regulation. As such, the deficiencies leading to
EPA's promulgation of this criterion in the NTR for the State have been
remedied and the federal regulatory provisions applying this criterion
to the Puget Sound in Washington is no longer needed for compliance
with the CWA.
3. Chronic Marine Aquatic Life Criterion for Copper Applicable to All
Waters
Washington has adopted, and EPA has approved, marine aquatic life
criterion for copper of 3.1 [mu]g/l chronic. The value promulgated in
the NTR for the copper chronic criterion is 2.4 [mu]g/l. The Washington
State criterion for copper is, therefore, less stringent than the value
promulgated in the NTR. However, Washington's criterion for copper is
equal to EPA's most recent CWA section 304(a) recommended criterion for
the protection of aquatic life for copper, which EPA updated in 1995.
EPA derived the section 304(a) recommended chronic criterion for
the protection of aquatic life for copper using up-to-date scientific
information. Under CWA section 304(a), EPA periodically publishes
updated ambient water quality criteria recommendations to reflect the
latest data and scientific information about the relationship between
pollutant concentrations and environmental and human health effects.
EPA's national recommended water quality criteria serve as guidance to
states and authorized tribes in adopting water quality standards under
the CWA. After December 1992, when EPA promulgated a copper criterion
for Washington as part of the NTR using the Agency's then current
section 304(a) criteria recommendations, new data on the toxicity of
copper to aquatic organisms in marine waters became available. Thus,
EPA updated its national CWA section 304(a) recommended chronic marine
aquatic life criterion for copper in 1995 to reflect this new
scientific data. On November 18, 1997, Washington State adopted a
marine copper aquatic life criterion equivalent to EPA's revised CWA
section 304(a) recommended marine copper chronic aquatic life criteria.
Washington did this in order to incorporate the latest scientific
knowledge into its State water quality standards.
EPA also relies on its section 304(a) recommended water quality
criteria when EPA promulgates water quality standards for a State. EPA
did this in 2000 when it promulgated acute and chronic criteria for
copper in California. Those water quality standards were based on EPA's
updated 1995 recommended water quality criteria for copper. See 40 CFR
131.38.
As described in EPA's February 6, 1998 approval, Washington State's
chronic marine aquatic life criterion for copper met the requirements
of 40 CFR 131.11, which provides that states may adopt criteria based
on EPA's CWA section 304(a) recommended criteria. Based on the science
supporting EPA's recommended water quality criteria, EPA concluded that
Washington's chronic marine aquatic life criterion for copper is
protective of the applicable aquatic life designated uses. While
Washington's chronic marine aquatic life criterion for copper is less
stringent than the corresponding value in the NTR, in its February 6,
1998 approval, EPA concluded that Washington's
[[Page 37113]]
chronic marine aquatic life water quality criterion for copper is
protective of Washington's designated uses and meets the requirements
of the CWA and federal regulation. As such, the deficiencies leading to
EPA's promulgation of this criterion in the NTR for the State have been
remedied and the federal regulatory provisions applying this criterion
to the Puget Sound in Washington is no longer needed. Therefore, EPA is
removing Washington from the NTR for chronic marine copper aquatic life
criterion with this action.
Table 1.--Summary of Marine Chronic Copper and Cyanide Aquatic Life Criteria
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EPA's current
1992 NTR values 1997 Revised recommended 304(a)
Chemical (Chronic ([mu]g/L)) Washington values criteria (Chronic
(Chronic ([mu]g/L)) ([mu]g/L))
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Copper........................................ 2.4 3.1 3.1
Cyanide....................................... 1 1* 1
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* The Puget Sound site-specific criterion is 2.8 [mu]g/L chronic and is applicable only to waters which are east
of a line from Point Roberts to Lawrence Point to Green Point to Deception Pass and south from Deception Pass
and of a line from Partridge Point to Point Wilson (these are the borders of Puget Sound).
IV. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
This action withdraws Federal requirements applicable to Washington
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
OMB review.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
because it is administratively withdrawing Federal requirements that
are no longer needed in Washington. It does not include any information
collection, reporting or recordkeeping requirements. However, the
Office of Management and Budget (OMB) has 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, EPA ICR number 1530.12. A copy of the OMB approved
Information Collection Request (ICR) may be obtained from Susan Auby,
Collection Strategies Division; U.S. Environmental Protection Agency
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by
calling (202) 566-1672.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) 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 (SBA) 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 II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in
[[Page 37114]]
the development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
This 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, 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
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations 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 government.''
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.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' 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.
G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 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 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 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) since Washington's criteria apply to
all marine waters in the State, 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 Washington's State-
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) and will be effective on September 7, 2007.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
[[Page 37115]]
Dated: July 2, 2007.
Stephen L. Johnson,
Administrator.
0
For the reasons set forth in the preamble, 40 CFR part 131 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 by revising the table in paragraph
(d)(14)(ii) to read as follows:
Sec. 131.36 Toxic criteria for those states not complying with Clean
Water Act Section 303(c)(2)(B).
* * * * *
(d) * * *
(14) * * *
(ii) * * *
------------------------------------------------------------------------
Use classification Applicable criteria
------------------------------------------------------------------------
Fish and Shellfish; Fish............... These classifications are
assigned the criteria in:
Column D2--all.
Water Supply (domestic)................ These classifications are
assigned the criteria in:
Column D1--all.
Recreation............................. This classification is assigned
the criteria in: Column D2--
Marine waters and freshwaters
not protected for domestic
water supply.
------------------------------------------------------------------------
* * * * *
[FR Doc. E7-13207 Filed 7-6-07; 8:45 am]
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