00-8957. Withdrawal of Certain Federal Human Health and Aquatic Life Water Quality Criteria Applicable to Rhode Island, Vermont, the District of Columbia, Kansas and Idaho

AGENCY:

Environmental Protection Agency.

ACTION:

Final rule.

SUMMARY:

In 1992, EPA promulgated Federal regulations establishing water quality criteria for toxic pollutants for several States, including Rhode Island, Vermont, the District of Columbia, Kansas and Idaho. These States have now adopted, and EPA has approved, human health and aquatic life water quality criteria. In this action, EPA is amending the Federal regulations to withdraw certain human health and aquatic life criteria applicable to these States. EPA is withdrawing its criteria applicable to these States without a notice and comment rulemaking because the States' adopted criteria are no less stringent than the Federal criteria.

DATES:

This rule is effective April 12, 2000.

ADDRESSES:

The administrative record for consideration of Rhode Island and Vermont's criteria 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 9:00 a.m. to 5:00 p.m. The administrative record for consideration of the District of Columbia human health criteria is available at EPA Region 3, Water Protection Division, 1650 Arch St, Philadelphia PA 19103-2029 during normal business hours of 9:00 am to 5:00 pm. The administrative record for consideration of Kansas's human health and aquatic life criteria is available for public inspection at EPA Region 7, Water Resources Protection Branch, 901 North 5th Street, Kansas City, Kansas 66101 during normal business hours of 8:00 a.m. to 4:30 p.m. The administrative record for consideration of Idaho's aquatic life criteria is available for public inspection at EPA Region 10, Office of Water, 1200 Sixth Avenue, Seattle, Washington 98101 during normal business hours of 8:00 a.m. to 4:30 p.m

FOR FURTHER INFORMATION CONTACT:

Thomas J. Gardner at EPA Headquarters, Office of Water (4305), 1200 Pennsylvania Ave NW, Washington, D.C., 20460 (tel: [phone]). For questions regarding Rhode Island and 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. For questions regarding Idaho, contact Lisa Macchio in EPA's Region 10 at 206-553-1834.

SUPPLEMENTARY INFORMATION:

Potentially Affected Entities

Citizens concerned with water quality in Rhode Island, Vermont, Kansas, the District of Columbia and Idaho may be interested in this rulemaking. Entities discharging toxic pollutants to waters of the United States in these States could be affected by this rulemaking since criteria are used in determining NPDES permit limits. Potentially affected categories and entities include:

Category	Examples of potentially affected entities
Industry	Industries discharging toxic pollutants to surface waters in Rhode Island, Vermont, District of Columbia, Kansas and Idaho.
Municipalities	Publicly-owned treatment works discharging toxic pollutants to surface waters in Rhode Island, Vermont, District of Columbia, Kansas and Idaho.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be potentially 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 is affected by this action, you should carefully examine the applicability criteria in § 131.36 of title 40 of the Code of Federal Regulations. If you have any questions regarding the applicability of this action to a particular entity, consult the appropriate person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section.

Background

In 1992, EPA promulgated a final rule (known as the “National Toxics Rule”, or “NTR”) to establish numeric water quality criteria for 12 States and two Territories (hereafter “States”) that had failed to comply 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 jurisdictions for all purposes and programs under the CWA effective February 5, 1993.

When a State adopts criteria that meet the requirements of the CWA, EPA will issue a rule amending the NTR to withdraw its criteria. Section 553 of the Administrative Procedure Act, U.S.C. 533(b)(B) provides that, when an agency for good cause finds that notice and public procedure 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 making today's rule final without prior proposal and opportunity for comment because EPA has determined that, if the State's criteria are no less stringent than the Federal regulations, additional comment on the criteria is unnecessary. EPA finds that this constitutes good cause for issuing this final rule without notice and comment. EPA has determined that the States criteria are no less stringent than the NTR criteria because they are identical, identical when rounded using conventional rounding techniques, or more stringent. For the same reason, and because this rule relieves a restriction, EPA has determined that good cause exists to waive the requirement for a 30-day period before the amendment becomes effective and therefore, the amendment will be immediately effective.

Rhode Island

On August 6, 1997, Rhode Island adopted revisions to its surface water quality standards (Regulation EVM 112-88.97-1), regarding human health criteria. Rhode Island adopted human health criteria for toxic pollutants contained in the NTR. EPA Region 1 approved the State's human health criteria on January 15, 1999, because Rhode Island's numeric criteria for the protection of human health were consistent with the CWA and EPA's implementing regulations at 40 CFR Part 131. By adoption of numeric criteria, Rhode Island complied with the requirements of Section 303(c)(2)(b) of the CWA to have numeric criteria for toxic pollutants. EPA Region 1 requested that the Agency withdraw the Federal criteria applicable to Rhode Island for which the State now has numeric criteria.

In today's action, EPA is withdrawing Rhode Island from the NTR for those criteria that the State has adopted that are no less stringent than the Federal criteria in the NTR. Rhode Island adopted, and EPA approved, a human health (organisms only) criterion of 50 μg/l for arsenic. The value promulgated in the NTR for this criterion is 0.14 μg/l. Rhode Island will remain in the NTR for this criterion. In a separate, upcoming action, EPA will propose to remove Rhode Island from the NTR for this criterion and provide for public comment. Additionally, Rhode Island adopted, and EPA approved, human health criteria of 18 mg/l and 59 mg/l (water and organisms, and organisms only, respectively) for bis(2)ethylhexyl pthalate. The values promulgated in the NTR are 18 μg/l and 59 μg/l, respectively. Rhode Island will remain in the NTR for these criteria.

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 Part 131. EPA Region 1 requested that the Agency withdraw the Federal criteria applicable to Vermont for which the State now has numeric criteria.

In today's action, EPA is withdrawing 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. Vermont adopted, and EPA approved, a human health (organisms only) criterion of 1.5 μg/l for arsenic. The value promulgated in the NTR for this criterion is 0.14 μg/l. Vermont will remain in the NTR for this criterion. In a separate, upcoming action, EPA will propose to remove Vermont from the NTR for this criterion and provide for public comment. Additionally, Vermont adopted and EPA approved, an aquatic life criterion continuous concentration (CCC) of 0.8 μg/l for gamma-BHC. The value promulgated for this criterion in the NTR was 0.08. Vermont will remain in the NTR for this criterion.

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, September 12, 1985], adopting human health criteria to protect from effects related to fish consumption. EPA Region 3 approved these revisions on November 4, 1996, because the District's numeric criteria are consistent with section 303(c)(2)(B) of the Clean Water Act and EPA's implementing regulations at 40 CFR Part 131. EPA Region 3 requested that the Agency withdraw the Federal human health (organism only) criteria applicable to the District for which the District now has numeric criteria.

In today's action, EPA is withdrawing the District of Columbia from the NTR for those human health “organism only” criteria that the District has adopted that are no less stringent than the Federal criteria in the NTR. The District remains in the NTR for organism + water human health criteria. The District removed the drinking water use for the only water body in the District designated for that use. EPA approved the removal of this use and, in a separate upcoming action, EPA will propose to remove the District from the NTR for organism + water human health criteria and will provide for public comment.

Kansas

On June 29, 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 section 303(c)(2)(B) of the CWA and EPA's implementing regulations at 40 CFR 131, and requested that the Agency withdraw the Federal criteria applicable to Kansas for which the State now has numeric criteria. Additionally, 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 section 303(c)(2)(B) of the CWA and EPA's implementing regulations at 40 CFR 131, and requested that the Agency withdraw the Federal criteria applicable to Kansas for which the State now has numeric criteria.

In today's action, EPA is removing Kansas from the NTR for certain human health and aquatic life criteria because the State's adopted criteria are no less stringent than the Federal criteria. Kansas remains in the NTR for arsenic (human health—organisms only) and cadmium (acute and chronic aquatic life). For these pollutants, Kansas adopted criteria that are less stringent than the Federal rule. In a separate, upcoming action, EPA will propose to withdraw the NTR criteria for these pollutants and provide for public comment. In addition, Kansas remains in the NTR for certain other toxic pollutants for which it has not yet adopted numeric criteria.

In addition, EPA is modifying the NTR for Kansas to reflect the State's adoption of a 10⁻⁶ risk level for carcinogens and a change in nomenclature for one of the State's use classifications.

Idaho

On August, 24, 1994, Idaho adopted revisions to its surface water quality standards (Title 1, chapter 2, Section 250 of the Idaho Administrative Code). For all aquatic life toxic pollutants, Idaho adopted the NTR criteria by reference. On June 25, 1996, EPA Region 10 approved the criteria because they were identical to the Federal criteria. EPA Region 10 requested that the Agency withdraw the Federal criteria applicable to Idaho for which the State now has numeric criteria.

In today's action, EPA is withdrawing Idaho from the NTR for all aquatic life criteria because the State adopted criteria that are identical to the Federal criteria.

Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.

This action does not involve technical standards; thus, 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. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA made such a good cause finding, including the reasons therefore, and established an immediate effective date of April 12, 2000. 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. This action is not a “major rule” as defined by 5 U.S.C. 804 (2).

List of Subjects in 40 CFR Part 131

• Environmental protection
• Indians—lands
• Intergovernmental relations
• Water pollution control

Dated: April 4, 2000.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble title 40, chapter I, of the Code of Federal Regulations is proposed to be 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]

2. Section 131.36 is amended by:

a. Revising the table in paragraph (d)(1)(ii).

b. Revising the table in paragraph (d)(2)(ii).

c. Revising the table in paragraph (d)(5)(ii).

d. Revising the table in paragraph (d)(9)(i).

e. Revising the table in paragraph (d)(9)(ii).

f. In paragraph (d)(9)(iii) by revising “State-proposed” to read “State-adopted”.

g. Removing and reserving paragraph (d)(13).

The revisions read as follows:

§ 131.36

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

* * * * *

(d) * * *

(1) * * *

(ii) * * *

Use classification	Applicable criteria
Class A Class B waters where water supply use is designated	These classifications are assigned the criteria in Column D1—#2, 68
Class B waters where water supply use is not designated Class C; Class SA; Class SB; Class SC	Each of these classifications is assigned the criteria in: Column D2—#2, 68

(2) * * *

(ii) * * *

Use classification	Applicable criteria
Class A Class B waters where water supply use is designated	This classification is assigned criteria in: Column B2—#105
Class B waters where water supply use is not designated Class C	These classifications are assigned all the criteria in: Column B2—#105 Column D2—#2

* * * * *

(5) * * *

(ii) * * *

Use classification	Applicable criteria
Class C	This classification is assigned the additional criteria in: Column B2—#10, 118, 126 Column D1—#15, 16, 44, 67, 68, 79, 80, 81, 88, 114, 116, 118.

* * * * *

(9) * * *

(i) * * *

Section (2)(A)—Special Aquatic Life Use Waters

Section (2)(B)—Expected Aquatic Life Use Waters

Section (2)(C)—Restricted Aquatic Life Use Waters

Section (3)—Domestic Water Supply.

Section (4)—Food Procurement Use.

(ii) * * *

Use classification	Applicable criteria
Sections (2)(A), (2)(B), (2)(C), (4)	These classifications are each assigned criteria as follows: Column B1, #2, 4 Column B2, #4 Column D2, #2, 12, 21, 29, 39, 46, 68, 79, 81, 86, 93, 104, 114, 118
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.

(iii) The Human Health Criteria shall be applied at the State adopted 10−⁶ risk level.

* * * * *