[Federal Register Volume 68, Number 122 (Wednesday, June 25, 2003)]
[Proposed Rules]
[Pages 37926-37929]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16231]



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Part III





Environmental Protection Agency





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40 CFR Part 131



Water Quality Standards; Withdrawal of Federal Aquatic Life Water 
Quality Criteria for Copper and Nickel Applicable to South San 
Francisco Bay, California; Proposed Rule

  Federal Register / Vol. 68, No. 122 / Wednesday, June 25, 2003 / 
Proposed Rules  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-7519-4]


Water Quality Standards; Withdrawal of Federal Aquatic Life Water 
Quality Criteria for Copper and Nickel Applicable to South San 
Francisco Bay, California

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: This action proposes to amend the Federal regulations to 
withdraw aquatic life water quality criteria for copper and nickel 
applicable to south San Francisco Bay, California. South San Francisco 
Bay is the area of San Francisco Bay that is located south of the 
Dumbarton Bridge. On May 18, 2000, EPA promulgated Federal regulations 
establishing water quality criteria for priority toxic pollutants for 
the State of California, since the State had not complied with the 
Clean Water Act. This regulation is known as the ``California Toxics 
Rule'' or ``CTR.'' Thereafter, on May 22, 2002, the California Regional 
Water Quality Control Board, San Francisco Bay Region (the RWQCB), 
adopted amendments to its Water Quality Control Plan for the San 
Francisco Bay Basin (Basin Plan). The amendments contained copper and 
nickel aquatic life water quality criteria for south San Francisco Bay. 
The State of California calls these criteria site-specific water 
quality objectives or site-specific objectives. The State of 
California's State Water Resources Control Board (SWRCB) and Office of 
Administrative Law (OAL) then reviewed and approved the Basin Plan 
amendments containing the site-specific objectives. On January 9, 2003, 
the SWRCB submitted the Basin Plan amendment containing the site-
specific objectives to EPA Region 9 for review and approval. On January 
21, 2003, EPA Region 9 approved the copper and nickel aquatic life 
site-specific objectives for south San Francisco Bay.
    Since the State of California now has aquatic life site-specific 
objectives, effective under the Clean Water Act (CWA), for copper and 
nickel for south San Francisco Bay, EPA has determined that the 
Federally-promulgated copper and nickel aquatic life criteria are no 
longer needed for south San Francisco Bay. In this proposed rule, EPA 
is proposing to withdraw the copper and nickel aquatic life criteria 
for south San Francisco Bay from the CTR.

DATES: All written comments received on or before July 25, 2003, will 
be considered in preparation of the final rule. Comments postmarked 
after this date may not be considered.

ADDRESSES: You should address written comments to Diane E. Fleck, P.E., 
Esq., Water Division (WTR-2), U.S. EPA Region 9, 75 Hawthorne Street, 
San Francisco, California 94105, Attention Docket ID No. OW-2003-0015. 
Please send an original and three copies of comments and enclosures 
(including references). You may also submit comments electronically or 
through hand-delivery or courier. Follow the detailed instructions as 
provided under ``How and To Whom to Submit Comments.''

FOR FURTHER INFORMATION CONTACT: Diane E. Fleck, P.E., Esq. (WTR-2) or 
Nancy Yoshikawa (WTR-5) at U.S. EPA Region 9, Water Division, 75 
Hawthorne Street, San Francisco, CA 94105 (tel: 415-972-3480 or 415-
972-3535, respectively, fax: 415-947-3537 or 415-974-3545, 
respectively) or e-mail at [email protected] or 
[email protected]. For general or administrative questions, 
please contact Brian Thompson at U.S. EPA Headquarters, Office of 
Water, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (tel: 202-
566-0382, fax: 202-566-0409) or e-mail at [email protected].

SUPPLEMENTARY INFORMATION: 

Potentially Regulated Entities

    No one is regulated by this proposed rule. This proposed rule, if 
adopted, merely withdraws Federal copper and nickel aquatic life water 
quality criteria applicable to south San Francisco Bay, California.

How To Obtain Copies of This Document and Other Related Information

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2003-0015. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing 
under, ``Water Quality Standards; Withdrawal of Federal Aquatic Life 
Water Quality Criteria for Copper and Nickel Applicable to South San 
Francisco Bay, California,'' at U.S. EPA Region 9, Water Division, 75 
Hawthorne Street, San Francisco, California 94105, phone: 415-972-3480. 
This Docket Facility is open from 8:30 a.m. PST to 4:30 p.m. PST, 
Monday through Friday, excluding legal holidays. A reasonable fee will 
be charged for copies.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings 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.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility. EPA intends to work towards providing electronic 
access to all of the publicly available docket materials through the 
EPA electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the

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version of the comment that is placed in EPA's electronic public 
docket. The entire printed comment, including the copyrighted material, 
will be available through the docket facility.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket, 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

How and To Whom To Submit Comments

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' While EPA is 
not required to consider these late comments, we will make every 
attempt to consider them.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EDOCKETS. Your use of EPA's electronic public docket to submit 
comments to EPA electronically is EPA's preferred method for receiving 
comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and 
follow the online instructions for submitting comments. To access EPA's 
electronic public docket from the EPA Internet Home Page, select 
``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the 
system, select ``search,'' and then key in Docket ID OW-2003-0015. The 
system is an ``anonymous access'' system, which means EPA will not know 
your identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    ii. E-mail. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. OW-2003-0015. In contrast 
to EPA's electronic public docket, EPA's e-mail system is not an 
``anonymous access'' system. If you send an e-mail comment directly to 
the Docket without going through EPA's electronic public docket, EPA's 
e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the address identified in the following paragraph. 
These electronic submissions will be accepted in WordPerfect or ASCII 
file format. Avoid the use of special characters and any form of 
encryption.
    2. By Mail. Send your comments to: Diane E. Fleck, P.E., Esq., 
Water Division (WTR-2), U.S. EPA Region 9, 75 Hawthorne Street, San 
Francisco, California 94105, Attention Docket ID No. OW-2003-0015.
    3. By Hand Delivery or Courier. Deliver your comments to the 
address identified in the preceding paragraph, attention Docket ID OW-
2003-0015. Such deliveries are only accepted during the docket's normal 
hours of operation from 8:30 a.m. PST to 4:30 p.m. PST, Monday through 
Friday, excluding legal holidays.

Background

    On May 18, 2000, EPA promulgated a final rule known as the 
``California Toxics Rule'' or ``CTR'' to establish numeric water 
quality criteria for priority toxic pollutants for the State of 
California, since the State had not complied fully with section 
303(c)(2)(B) of the Clean Water Act (CWA) (65 FR 31682). The criteria, 
codified at 40 CFR 131.38, became the applicable water quality criteria 
in California effective May 18, 2000, for all purposes and programs 
under the CWA.
    EPA acknowledged in the preamble to the CTR that the State of 
California is working to satisfy the requirements of CWA section 
303(c)(2)(B) and anticipated that the Agency, once the state submitted 
its water quality standards to EPA, would approve the State-adopted 
water quality criteria for pollutants included in the CTR (65 FR 31684, 
May 18, 2000). The State of California calls these criteria site-
specific water quality objectives or site-specific objectives. The 
water quality standards program was developed with an emphasis on State 
primacy. Although in the CTR EPA promulgated toxic criteria for the 
State of California, EPA prefers that States maintain primacy, revise 
their own standards, and achieve full compliance (see 57 FR 60860, 
December 22, 1992).
    In a rulemaking similar to the CTR, EPA determined that if the 
State's criteria were no less stringent than the promulgated Federal 
criteria, EPA would withdraw its criteria without notice and comment. 
However, if the State adopted criteria that were less stringent than 
the Federally-promulgated criteria, but in the Agency's judgment fully 
met the requirements of the Act, EPA would provide an opportunity for 
public comment before withdrawing the Federally-promulgated criteria 
(see 57 FR 60860, December 22, 1992). As described in detail below 
under ``Site-Specific Aquatic Life Objectives for Copper and Nickel,'' 
the State of California recently adopted copper and nickel aquatic life 
site-specific objectives for the south San Francisco Bay which EPA 
subsequently approved.
    In today's action, EPA is proposing to amend the CTR by withdrawing 
aquatic life copper and nickel criteria applicable to south San 
Francisco Bay, California.

Site-Specific Aquatic Life Objectives for Copper and Nickel

    On May 22, 2002, the California Regional Water Quality Control 
Board, San Francisco Bay Region, adopted site-specific water quality 
objectives for nickel and copper to protect aquatic life in the south 
San Francisco Bay and submitted the revised Water Quality Control Plan 
to EPA on January 9, 2003. The aquatic life water quality criteria for 
copper contained in the CTR table at 40 CFR 131.38(b)(1) for saltwater 
are: 4.8 ug/l dissolved acute (exposure for a short period of time) and 
3.1 ug/1 dissolved chronic (exposure for an extended [4 day] period of 
time). The aquatic life water quality criteria for

[[Page 37928]]

nickel contained in the CTR table at 40 CFR 131.38(b)(1) for saltwater 
are: 74 ug/l dissolved acute (exposure for a short period of time) and 
8.2 ug/l dissolved chronic (exposure for an extended [4 day] period of 
time). Both the copper and nickel criteria are further expressed as a 
function of the water-effect ratio (or WER). The WER in the CTR is 
assumed to be 1 for all applicable pollutants but may be otherwise 
defined by the State using appropriate procedures (see 65 FR 31718).
    The aquatic life water quality objectives for copper adopted by the 
State of California and approved by EPA for south San Francisco Bay 
are: 10.8 ug/l dissolved acute (exposure for a 1 hour average period of 
time) and 6.9 ug/l dissolved chronic (exposure for a 4 day average 
period of time). The aquatic life water quality objectives for nickel 
adopted by the State of California and approved by EPA for south San 
Francisco Bay are: 62.4 ug/l dissolved acute (exposure for a 1 hour 
average period of time) and 11.9 ug/l dissolved chronic (exposure for a 
4 day average period of time).
    Under the procedures set out in the National Toxics Rule, published 
December 22, 1992, and referenced in the CTR, when a state adopts and 
EPA approves water quality criteria that meet the requirements of the 
CWA, EPA will issue a rule amending the federal regulations to withdraw 
the federally applicable 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 is unnecessary. However, if a State adopts criteria that are 
less stringent than the Federally promulgated criteria, but that in the 
Agency's judgement fully meet the requirements of the Act, EPA will 
provide an opportunity for public comment before withdrawing the 
Federally promulgated criteria.
    On October 17, 2002, the State Water Resources Board adopted the 
site-specific objectives for copper and nickel in the lower south San 
Francisco Bay. The objectives were subsequently submitted to EPA on 
January 9, 2003, for its review and approval. EPA recognizes that three 
out of the four California criteria for copper and nickel are less 
stringent than the federally CTR promulgated criteria. However, the 
site-specific objectives were developed from the results of a number of 
detailed studies and technical reports that were the subject of 
technical peer review and were part of the collaborative stakeholder 
process known as the ``Santa Clara Basin Watershed Management 
Initiative.'' Based on this additional information, EPA determined that 
these adopted criteria are fully protective of the aquatic life 
designated uses of California's waters in the south San Francisco Bay 
and met the requirements of the Clean Water Act. EPA approved 
California's water quality objectives on January 21, 2003. Therefore, 
EPA determined that the federal aquatic life water quality criteria for 
copper and nickel in these waters are no longer necessary.
    Because three out of the four California criteria for copper and 
nickel are less stringent than the federally promulgated criteria, EPA 
is requesting comments on its action to withdraw copper and nickel 
criteria from the CTR. EPA will address public comments in a subsequent 
final rule based on this proposed rule. Any parties interested in 
commenting must do so at this time.

Statutory and Executive Order Reviews

1. Executive Order 12866--Regulatory Planning and Review

    This action withdraws specific Federal requirements applicable to 
south San Francisco Bay, California 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 Office of Management and 
Budget (OMB) review.

2. Paperwork Reduction Act

    This proposed 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.) because it is administratively proposing to withdraw 
Federal requirements that no longer need to apply to south San 
Francisco Bay, California.

3. 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 proposed 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.

4. Unfunded Mandate Reform Act

    Title III of the Unfunded Mandates Reform Act (UMRA) (Public Law 
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 proposed 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 proposed rule is not subject to the requirements of UMRA 
section 202 and 205 for a written statement and small government agency 
plan. Similarly, EPA has determined that this proposed rule contains no 
regulatory requirements that might significantly or uniquely affect 
small governments and is therefore not subject to UMRA section 203.

5. 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 
proposed rule imposes no regulatory requirements or costs on any State 
or local governments, therefore, it does not have federalism 
implications under Executive Order 13132.

6. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    Again, this proposed 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).

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7. Executive Order 13045--Protection of Children From Environmental 
Health and Safety Risks

    This proposed 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.

8. Executive Order 13211--Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211, 
entitled ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, and Use'' (66 FR 28355, May 22, 2001), 
because it is not a significant regulatory action under Executive Order 
12866.

9. 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.

List of Subjects in 40 CFR Part 131

    Environmental protection, Indian-lands, Intergovernmental 
Relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: June 20, 2003.
Christine Todd Whitman,
Administrator.

    For the reasons set out in the preamble, 40 CFR part 131 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.

Subpart D--[Amended]

    2. Section 131.38(b)(1) is amended by revising Footnote b to read 
as follows:


Sec.  131.38  Establishment of Numeric Criteria for Priority Toxic 
Pollutants for the State of California.

* * * * *
    (b)(1) * * *
    Footnotes to Table in Paragraph (b)(1):
* * * * *
    b. Criteria apply to California waters except for those waters 
subject to objectives in Tables III-2A and III-2B of the San 
Francisco Regional Water Quality Control Board's (SFRWQCB) 1986 
Basin Plan that were adopted by the SFRWQCB and the State Water 
Resources Control Board, approved by EPA, and which continue to 
apply. For copper and nickel, criteria apply to California waters 
except for waters south of Dumbarton Bridge in San Francisco Bay 
that are subject to the objectives in the SFRWQCB's Basin Plan as 
amended by SFRWQCB Resolution R2-2002-0061, dated May 22, 2002, and 
approved by the State Water Resources Control Board. EPA approved 
the aquatic life site-specific objectives on January 21, 2003. The 
copper and nickel aquatic life site-specific objectives contained in 
the amended Basin Plan apply instead.
* * * * *
[FR Doc. 03-16231 Filed 6-24-03; 8:45 am]
BILLING CODE 6560-50-P