[Federal Register Volume 67, Number 232 (Tuesday, December 3, 2002)]
[Rules and Regulations]
[Pages 71843-71847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-30599]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-7416-3]


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.

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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

[[Page 71844]]

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 (202) 566-2426 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: 202-566-0386, fax 202-566-0409) or e-mail 
[email protected]. 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 [mu]g/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 [mu]g/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

[[Page 71845]]

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 [mu]g/L was scientifically defensible; that the State's 
calculation of a cadmium freshwater aquatic life criteria (Criteria 
Maximum Concentration) of 4.5 [mu]g/l was scientifically defensible; 
that the State's calculation of a cadmium freshwater aquatic life 
criteria (Criteria Continuous Concentration) of 2.5 [mu]g/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

[[Page 71846]]

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.


Sec.  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:


Sec.  131.36  Toxics criteria for those states not complying with Clean 
Water Act Section 303(c)(2)(B).

    (d) * * *
    (2) * * *
    (ii) * * *

[[Page 71847]]



------------------------------------------------------------------------
           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,     These classifications are each
 SE2, SE3, SC, Delaware Bay Zone 6.       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,   i. Column B1--none.
 3, 4, and 5.
                                         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.
------------------------------------------------------------------------

* * * * *
[FR Doc. 02-30599 Filed 12-2-02; 8:45 am]
BILLING CODE 6560-50-P