[Federal Register Volume 68, Number 215 (Thursday, November 6, 2003)]
[Rules and Regulations]
[Pages 62744-62747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27949]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-7583-9]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final rule amends 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.'' On December 17, 2002, the State of California 
completed its adoption process to incorporate 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. On January 9, 2003,

[[Page 62745]]

the State submitted 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. On June 25, 2003, EPA 
requested comment on its proposed action to withdraw copper and nickel 
criteria applicable to the south San Francisco Bay from the CTR. EPA 
did not receive any adverse comments concerning EPA's proposal to 
withdraw the copper and nickel aquatic life criteria applicable to 
south San Francisco Bay from the CTR and is therefore publishing this 
final rule.

EFFECTIVE DATE: This rule is effective November 6, 2003.

ADDRESSES: The public docket for today's final rule is available for 
public inspection at the U.S. Environmental Protection Agency, Region 
9, 75 Hawthorne Street, San Francisco, California 94105, between the 
hours of 8 a.m. and 4:30 p.m. For access to the public docket, call 
Diane E. Fleck at 415-972-3480 or Nancy Yoshikawa at 415-972-3535 for 
an appointment. A reasonable fee may be charged for photocopies. The 
public docket may also be viewed electronically by following the 
instructions as provided under ``How to Obtain Copies of This Document 
and Other Related Information.''

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 Manjali Vlcan at U.S. EPA Headquarters, Office of Water, 
1200 Pennsylvania Avenue, NW., Washington, DC 20460 (tel: 202-566-0373, 
fax: 202-566-0409) or e-mail at [email protected].

SUPPLEMENTARY INFORMATION:

Effective Date

    EPA is making this final rule effective upon publication. Under the 
Administrative Procedures Act, 5 U.S.C. 553(d)(3), agencies must 
generally publish a rule notless than 30 days prior to the effective 
date of the rule except as otherwise provided for by the Agency for 
good cause found and published with the rule. The purpose of the 30-day 
waiting period is to give affected parties a reasonable time to adjust 
their behavior before the final rule takes effect. See Omnipoint Corp. 
v. F.C.C., 78 F.3d 620, 630-631 (D.C. Cir. 1996); Riverbend Farms, Inc. 
v. Madigan, 958 F.2d 1479, 1485 (9th Cir. 1992).
    In this instance, EPA finds good cause to make the final rule 
effective upon publication. In order to find good cause, an Agency 
needs to find that the 30-day period would be: (1) Impracticable, (2) 
unnecessary, or (3) contrary to the public interest. Here EPA is 
relying on the third reason to support its finding of good cause.
    EPA finds that, in this instance, waiting 30 days to make the rule 
effective is contrary to public interest. As explained in this 
preamble, both the California Toxics Rule copper and nickel criteria 
and California's copper and nickel site-specific objectives, approved 
by EPA on January 21, 2003, apply to the south San Francisco Bay. 
Therefore, it may be unclear which standards are the appropriate 
benchmarks when making permitting and CWA section 303(d) impaired 
waters listing decisions. Since a 30-day delay in effectiveness of this 
rule would unnecessarily extend this potential confusion when making 
water management decisions, EPA has determined that it would be in the 
public interest to make this rule effective immediately.

Potentially Regulated Entities

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

How Can I Get 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. Pacific time to 4:30 p.m. 
Pacific time, Monday through Friday, excluding legal holidays. A 
reasonable fee maybe 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 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. Although not all docket materials may be available 
electronically, you may still access any of the publicly available 
docket materials through the California docket facility identified 
earlier. Once in the system, select ``search,'' then key in the 
appropriate docket identification number.

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 was 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

[[Page 62746]]

full compliance (see 57 FR 60860, December 22, 1992).
    Under the procedures set out in the National Toxics Rule, published 
December 22, 1992 (see 57 FR 60860, 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. 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.
    On June 25, 2003, EPA requested comment on its proposed action to 
withdraw copper and nickel criteria applicable to the south San 
Francisco Bay from the CTR and received no adverse comments on the 
proposal (68 FR 37926, June 25, 2003).

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. On October 17, 2002, the State Water Resources 
Control Board approved the site-specific objectives for copper and 
nickel in the lower south San Francisco Bay. On December 17, 2002, the 
State of California completed its adoption process to incorporate 
copper and nickel aquatic life water quality criteria for south San 
Francisco Bay. On January 9, 2003, the SWRCB submitted the site-
specific objectives to EPA Region 9 for review and approval.
    The saltwater aquatic life water quality criteria for 
dissolvedcopper contained in the CTR table at 40 CFR 131.38(b)(1) are: 
4.8 ug/l acute (exposure for a short period of time) and 3.1 ug/l 
chronic (exposure for an extended [4 day] period of time). The 
saltwater aquatic life water quality criteria for dissolved nickel 
contained in the CTR table at 40 CFR 131.38(b)(1) are: 74 ug/l acute 
(exposure for a short period of time) and 8.2 ug/l 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 
(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 dissolvedcopper 
adopted by the State of California and approved by EPA for south San 
Francisco Bay are: 10.8 ug/l acute (exposure for a 1 hour average 
period of time) and 6.9 ug/l chronic (exposure for a 4 day average 
period of time). The aquatic life water quality objectives for 
dissolvednickel adopted by the State of California and approved by EPA 
for south San Francisco Bay are: 62.4 ug/l acute (exposure for a 1 hour 
average period of time) and 11.9 ug/l chronic (exposure for a 4 day 
average period of time).
    EPA recognizes that three out of the four California criteria for 
copper and nickel are less stringent than the Federally promulgated 
criteria in the CTR. 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 meet the requirements of the Clean 
Water Act. EPA approved California's water quality objectives on 
January 21, 2003. Therefore, EPA has 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, on 
June 25, 2003, EPA requested comments on its proposed action to 
withdraw copper and nickel criteria from the CTR. On July 25, 2003, EPA 
received two letters in support of the proposed withdrawal action. No 
other comments were received regarding the proposed action. EPA is 
therefore publishing this final rule to withdraw the copper and nickel 
aquatic life criteria for south San Francisco Bay from the CTR.

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 final 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 withdrawing 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 final 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) (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 final 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 final 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 final rule contains no

[[Page 62747]]

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 final 
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 final 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).

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

    This final 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 final rule is not subject to Executive Order 13211, entitled 
``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.

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.

10. 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). This rule will be effective November 6, 2003.

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians-lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: October 30, 2003.
Marianne Lamont Horinko,
Acting Administrator.


0
For the reasons set out in the preamble, 40 CFR part 131 is amended as 
follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

Subpart D--[Amended]

0
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. 03-27949 Filed 11-5-03; 8:45 am]
BILLING CODE 6560-50-P