02-30599. 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.

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 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 [phone] 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: [phone], fax [phone]) or e-mail [e-mail]. 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 μg/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 μg/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 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 μg/L was scientifically defensible; that the State's calculation of a cadmium freshwater aquatic life criteria (Criteria Maximum Concentration) of 4.5 μg/l was scientifically defensible; that the State's calculation of a cadmium freshwater aquatic life criteria (Criteria Continuous Concentration) of 2.5 μg/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 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.

§ 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:

§ 131.36

Toxics criteria for those states not complying with Clean Water Act Section 303(c)(2)(B).

(d) * * *

(2) * * *

(ii) * * *

Use classification	Applicable criteria
1. Classes A1, A2, B1, B2, B3	These classification are assigned the criterion in: Column B2—#105.

* * * * *

(3) * * *

(ii) * * *

Use classification	Applicable criteria
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, SE2, SE3, SC, Delaware Bay Zone 6	These classifications are each 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, 3, 4, and 5	i. Column B1—none.
	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.

* * * * *