[Federal Register Volume 62, Number 196 (Thursday, October 9, 1997)]
[Rules and Regulations]
[Pages 52926-52927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26862]
[[Page 52925]]
_______________________________________________________________________
Part VI
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 131
Withdrawal From Federal Regulations of Arsenic Human Health Water
Quality Criteria Applicable to Idaho; Final Rule
Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 /
Rules and Regulations
[[Page 52926]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-5903-4]
Withdrawal From Federal Regulations of Arsenic Human Health Water
Quality Criteria Applicable to Idaho
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rule amends the federal regulations by withdrawing the
federal human health water quality criteria for arsenic applicable to
Idaho. Idaho adopted human health criteria for arsenic and EPA
subsequently approved those criteria. On November 29, 1996, EPA
published a proposed rule and provided an opportunity for public
comment on the withdrawal of the federal criteria for arsenic. EPA
received one comment, which supported the withdrawal action.
EFFECTIVE DATE: November 10, 1997.
ADDRESSES: The administrative record for this action is available for
review and copying at the U.S. EPA Region 10, Office of Water, 1200
Sixth Avenue, Seattle, Washington 98101, between 8:00 a.m. and 4:30
p.m.
FOR FURTHER INFORMATION CONTACT: Fred Leutner at EPA Headquarters,
Office of Water, 401 M Street, SW, Washington, D.C. 20460 (202-260-
1542) or Lisa Macchio in EPA's Region 10 at 206-553-1834.
SUPPLEMENTARY INFORMATION:
A. Potentially Affected Entities.
B. Background.
C. Executive Order 12866.
D. Unfunded Mandates Reform Act.
E. Regulatory Flexibility Act.
F. Paperwork Reduction Act.
G. Submission to Congress and the General Accounting Office.
A. Potentially Affected Entities
Citizens concerned with water quality in Idaho may be interested in
this rulemaking. Entities discharging pollutants to waters of the
United States in Idaho could be affected by this rulemaking since human
health criteria are used in determining national pollutant discharge
elimination system (NPDES) permit limits. Categories and entities which
may ultimately be affected include:
------------------------------------------------------------------------
Examples of potentially
Category affected entities
------------------------------------------------------------------------
Industry.............................. Industries discharging
pollutants to surface waters in
Idaho.
Municipalities........................ Publicly-owned treatment works
discharging pollutants to
surface waters in Idaho.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding 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 potentially be affected by this
action. To determine whether your facility is affected by this action,
you should carefully examine the applicability criteria in Sec. 131.36
of Title 40 of the Code of Federal Regulations (CFR). If you have any
questions regarding the applicability of this action to a particular
entity, consult the person listed in FOR FURTHER INFORMATION CONTACT
section.
B. Background
In l992, EPA promulgated a final rule (known as the National Toxics
Rule) to establish numeric water quality criteria for 12 States and 2
Territories (hereafter ``States'') that had failed to comply fully with
section 303(c)(2)(C) of the Clean Water Act (57 FR 60848). The
criteria, codified at 40 CFR 131.36, became the applicable water
quality standards in those 14 jurisdictions for all purposes and
programs under the Clean Water Act effective February 5, l993.
When a State adopts criteria that meet the requirements of the
Clean Water Act, EPA withdraws its criteria. If the State's criteria
are no less stringent than the federal regulations, EPA will withdraw
its criteria without notice and comment rulemaking since additional
comment on the criteria is unnecessary. If a State's criteria are less
stringent than the federal regulations, EPA will withdraw its criteria
only after notice and opportunity for public comment on that decision
(see 57 FR 60860).
On August 24, 1994, Idaho adopted revisions to its surface water
quality standards (Title 1, Chapter 2, section 250 of the Idaho
Administrative Code), regarding surface water quality criteria for
toxic pollutants. For all pollutants except arsenic, Idaho adopted by
reference EPA's criteria. EPA Region 10 approved Idaho's criteria and
recommended to the Administrator that she withdraw the federal human
health criteria applicable to Idaho. In a separate final action
published in the Federal Register on November 29, 1996, EPA withdrew
without public comment those human health criteria applicable to Idaho
for which the State has adopted criteria identical to the federal
criteria (see 61 FR 60616).
Idaho adopted human health criteria for arsenic (0.020 g/l
for the consumption of water and organisms and 6.2 g/l for the
consumption of organisms); these criteria are less stringent than the
federal regulations (0.018 g/l for the consumption of water
and organisms and 0.14 g/l for the consumption of organisms).
Idaho's criteria for arsenic differ from the federal criteria because
the State used a bioconcentration factor (BCF) to derive its criteria
that is different from the BCF used by EPA. Idaho selected a BCF that
the State believes more accurately reflects the species of fish present
in State's surface waters. EPA had indicated in the preamble to the
National Toxic Rule that states may select fish species in developing
BCF values that would better reflect species found in State waters (see
57 FR 60888). Having reviewed Idaho's submission, EPA concluded that
the State's choice of a BCF to calculate the arsenic criteria was
appropriate and the State's arsenic criteria met the requirements of
the Clean Water Act.
Because the State's arsenic criteria are less stringent than the
federal criteria, EPA proposed to withdraw the human health criteria
for arsenic applicable to Idaho and solicited public comment on that
proposal (61 FR 60672; November 29, 1996). EPA received one comment on
the proposed rule. The commenter agreed with the appropriateness of
Idaho's ambient water quality criteria for arsenic for the protection
of human health.
C. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
must determine whether a regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines a
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
[[Page 52927]]
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
This withdrawal of the arsenic human health criteria imposes no
additional regulatory requirements. Therefore, it has been determined
that this rule is not a ``significant regulatory action'' under the
terms of Executive Order 12866 and is not subject to OMB review.
D. Unfunded Mandates Reform Act
This action will not result in the annual expenditure of $100
million or more for State, local, and tribal governments, in the
aggregate, or to the private sector, and is not a Federal mandate, as
defined by the Unfunded Mandates Reform Act of 1995 (UMRA) (P.L. 104-
4), nor does it uniquely affect small governments in any way. As such,
the requirements of sections 202, 203, and 205 of Title II of the UMRA
do not apply to this action.
E. Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA) (5 USC 601 et seq.),
whenever a federal agency is required to publish a general notice of
rulemaking or promulgates a final rule, the agency is generally
required to prepare an analysis describing the economic impact of the
regulatory action on small entities. However, under section 605(b) of
the RFA, if the head of the agency certifies that the rule will not
have a significant economic impact on a substantial number of small
entities, the agency is not required to prepare an RFA analysis.
Today's final rule establishes no requirements applicable to small
entities, and so is not susceptible to a regulatory flexibility
analysis.
This rule amends the National Toxics Rule (NTR), codified at 40 CFR
131.36, which promulgated federal water quality criteria to bring
several states into compliance with Clean Water Act requirements. The
NTR did not itself establish any requirements that are applicable to
small entities. The NTR criteria are implemented through various state
water quality control programs, including the NPDES permit program that
limits the discharge of contaminants into navigable waters. The NPDES
permit process is implemented by an authorized State, or absent an
approved state program, by EPA (the permit authority). Authorized
states and EPA have considerable discretion in carrying out the permit
program to meet water quality standards. Accordingly, while a
permitting authority's implementation of federally-promulgated water
quality criteria may ultimately affect small entities by changing their
permit limits, the criteria themselves do not apply to any discharger,
including small entities.
Since the NTR, as explained above, does not itself establish any
requirements that are applicable to small entities, certainly
withdrawing federal water quality criteria from the NTR would not
establish any requirements applicable to small entities. Moreover, even
if the State criteria that replace the federal criteria are more
stringent than the federal criteria, the State criteria themselves
would not affect small entities. As explained previously, the permit
authority implements the criteria through its permitting program where
it will have a number of discretionary choices in developing permit
limits.
For these reasons, the Administrator is certifying that this rule
will not have a significant impact on a substantial number of small
entities. Therefore the Agency has not prepared a regulatory
flexibility analysis.
F. Paperwork Reduction Act
This final rule does not impose any requirement subject to the
Paperwork Reduction Act.
G. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 131
Environmental protection, Water pollution control, Water quality
standards.
Dated: October 2, 1997.
Carol M. Browner,
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
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Sec. 131.36 [Amended]
2. Section 131.36(d)(13)(i) is amended by removing the following
uses classifications: ``16.01.2100.01.b. Domestic Water Supplies'',
``16.01.2100.03.a. Primary Contact Recreation'', and ``16.01.2100.03.b.
Secondary Contact Recreation''.
3. Section 131.36(d)(13)(ii) is amended by removing the following
use classifications and corresponding applicable criteria: ``01.b'',
``03.a'', ``03.b.''.
4. Section 131.36(d)(13)(ii) is amended in ``02.a'', ``02.b.'',
``02.cc'' use classification, under the listing of applicable criteria,
by removing ``Column D2''.
5. Section 131.36(d)(13)(iii) is removed in its entirety.
[FR Doc. 97-26862 Filed 10-8-97; 8:45 am]
BILLING CODE 6560-50-P
