03-25272. Final Administrative Determination Document on the Question of Whether Ferric Ferrocyanide Is One of the “Cyanides” Within the Meaning of the List of Toxic Pollutants Under the Clean Water Act

AGENCY:

Environmental Protection Agency.

ACTION:

Notice of document availability.

SUMMARY:

By order dated October 19, 1995, the United States District Court for the District of Massachusetts stayed the proceedings in Commonwealth of Massachusetts v. Blackstone Valley Electric Co. (No. 94-2286) and referred the question of whether ferric ferrocyanide qualifies as one of the “cyanides” within the meaning of the list of toxic pollutants under the Clean Water Act to the U.S. Environmental Protection Agency (EPA). This District Court order followed a U.S. Court of Appeals decision in which the First Circuit determined that it was appropriate to refer this question to EPA for an “administrative determination.” Today's notice announces the availability of EPA's final administrative determination that ferric ferrocyanide (FFC) is one of the “cyanides” within the meaning of the Toxic Pollutant List Under the Clean Water Act.

DATES:

This final administrative determination is available on October 6, 2003.

ADDRESSES:

The administrative record is available for inspection and copying at the Water Docket, located at the EPA Docket Center (EPA/DC) in the basement of the EPA West Building, Room B-102, 1301 Constitution Ave., NW., Washington, DC. The Final Administrative Determination and key supporting materials are also electronically available via EPA Dockets (Edocket) at http://www.epa.gov/​edocket/​.

FOR FURTHER INFORMATION CONTACT:

For further information, contact Marion Kelly, USEPA, Office of Water, Engineering and Analysis Division (4303T), 1301 Constitution Avenue, NW., Washington, DC; or call [phone]; or e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

I. How Can I Get Copies of This Document and Other Related Information?

A. Docket. EPA has established an official public docket for this action under Docket ID No. OW-2002-0036. The official public docket is the collection of materials that is available for public viewing at the Water Docket in the EPA Docket Center (EPA/DC), EPA West, Room B-102, 1301 Constitution Ave., NW., Washington, DC. The EPA Docket Center 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 [phone], and the telephone number for the Water Docket is [phone].

B. Electronic Access. You may access this Federal Register document electronically through the EPA Internet under the “Federal Register” listing at http://www.epa.gov/​fedrgstr/​.

An electronic version of the public docket is available through EPA's electronic public docket and comment system, EPA Dockets. You may use EPA Dockets at http://www.epa.gov/​edocket/​ to submit or view public comments, access the index listing of the contents of the official public docket, and to access those documents in the public docket that are available electronically. Once in the system, select “search,” then key in the appropriate docket identification number.

II. EPA's Determination Regarding Ferric Ferrocyanide

EPA has prepared a final administrative determination describing the Agency's interpretation of the term “cyanides” (found in 40 CFR 401.15, 40 CFR 302.4, and Table 302.4 at 40 CFR 302.4) as that interpretation applies to ferric ferrocyanide. 40 CFR 401.15 contains the list of toxic pollutants, 40 CFR 302.4 provides the designation of hazardous substances, and Table 302.4 at 40 CFR 302.4 contains the list of hazardous substances and reportable quantities. This final administrative determination responds to a referral from the United States District Court for the District of Massachusetts. By order dated October 19, 1995, the United States District Court for the District of Massachusetts stayed the proceedings in Commonwealth of Massachusetts v. Blackstone Valley Electric Co. (No. 94-2286) and referred the question of whether ferric ferrocyanide qualifies as one of the “cyanides” within the meaning of 40 CFR 401.15, 40 CFR 302.4, and Table 302.4 to EPA. This District Court order followed a U.S. Court of Appeals decision in which the First Circuit determined that it was appropriate to refer this question to EPA for an “administrative determination.” Commonwealth of Massachusetts v. Blackstone Valley Electric Co., 67 F.3d 981 (1st Cir. 1995).

This determination is not a legislative rule; notice and comment is not required. However, in reaching this determination, EPA provided an opportunity for public comment through a Federal Register notice announcing the availability of the Agency's preliminary determination (January 25, 2001, 66 FR 7759). EPA originally requested public comments on the preliminary determination by March 12, 2001 and then extended the comment period twice at the request of the litigants in the Blackstone case. After the close of the comment period for the preliminary determination, EPA found additional (and potentially relevant) historical documents and scientific articles, and reopened the comment period for comment on these new materials on November 4, 2002 (November 4, 2002, 67 FR 67183; corrected November 12, 2002, 67 FR 68725). The comment period for the additional materials ended January 3, 2003. In April 2003, EPA conducted a peer review of the preliminary determination in accordance with EPA's Peer Review policies, which are described in EPA's Science Policy Council Handbook—Peer Review, 2nd Edition (EPA 100-B-00-001, December 2001; the “Peer-review Handbook”).

EPA considered all comments and materials received, including those submitted by the peer reviewers, the litigants in the Blackstone case, Massachusetts, and other stakeholders. EPA has placed all comments, responses to comments, and all information used by the Agency in support of this administrative determination in the public docket. EPA also prepared, and included in the public docket, a final administrative determination document (EPA-821-R-03-014) that summarizes the Agency's analysis and rationale. EPA has determined that ferric ferrocyanide is one of the “cyanides” within the meaning of 40 CFR 401.15, 40 CFR 302.4, and Table 302.4.

Dated: September 24, 2003.

G. Tracy Mehan III,

Assistant Administrator for Water.