Water Quality Standards; Withdrawal of Certain Federal Water Quality Criteria Applicable to Alaska, Arkansas, and Puerto Rico

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

EPA is taking final action to amend the Federal regulations to withdraw certain water quality criteria applicable to Alaska, Arkansas, and Puerto Rico. In 1992, EPA promulgated Federal regulations, through the National Toxics Rule (“NTR”), establishing water quality criteria for toxic pollutants for 12 states and two territories, including Alaska, Arkansas, and Puerto Rico. These two states and one territory have now adopted, and EPA has approved, certain water quality criteria included in the NTR. Since Alaska, Arkansas, and Puerto Rico now have criteria, effective under the Clean Water Act, for the same priority toxic pollutants in the NTR, EPA has determined that the Federally promulgated criteria are no longer needed for these pollutants. In today's action, EPA is amending the Federal regulations to withdraw those certain criteria applicable to Alaska, Arkansas, and Puerto Rico. EPA is withdrawing its criteria without a notice and comment rulemaking because the adopted criteria are no less stringent than Federal criteria (see 65 FR 19659, April 12, 2000).

DATES:

This final rule is effective on October 29, 2004.

ADDRESSES:

EPA has established a docket for this action under Docket ID No. OW-2004-0006. All documents in the docket are listed in the EDOCKET index at http://www.epa.gov/edocket . Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available, docket materials are available either electronically in EDOCKET or in hard copy at the following: The administrative record for the withdrawal of Alaska's federally promulgated criteria is also available for public inspection at EPA Region 10, Office of Water, 1200 Sixth Avenue, Seattle, WA 98101, during normal business hours of 8 a.m. to 4:30 p.m. Pacific time. The administrative record for the withdrawal of Arkansas's federally promulgated criteria is also available for public inspection at EPA Region 6, Water Quality Protection Division, 1445 Ross Avenue, Dallas, TX 75202, during normal business hours of 7:30 a.m. to 11 a.m. and 1 p.m. to 4:30 p.m. central time. The administrative record for the withdrawal of Puerto Rico's Federally promulgated criteria is also available for public inspection at EPA Region 2, 290 Broadway, New York, NY 10007, during normal business hours of 9 a.m. to 4:30 p.m. eastern time Monday through Thursday, and 9 a.m.-1 p.m. eastern time on Friday.

FOR FURTHER INFORMATION CONTACT:

For questions regarding this action with respect to Alaska, contact Sally Brough with EPA's Region 10 at 206-553-1295. For questions regarding this action with respect to Arkansas, contact Russell Nelson with EPA's Region 6 at 214-665-6646. For questions regarding this action with respect to Puerto Rico, contact Wayne Jackson with EPA's Region 2 at 212-637-3807. For general and administrative concerns, contact Stephanie Thornton at EPA Headquarters, Office of Water (4305T), 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (202-566-0606).

SUPPLEMENTARY INFORMATION:

I. General Information

No one is regulated by this rule. This rule withdraws certain Federal water quality criteria applicable to Alaska, Arkansas, and Puerto Rico.

II. Background

In 1992, EPA promulgated the “National Toxics Rule” (“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, December 22, 1992). 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.

As described in the preamble to the final NTR, 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 the Federal criteria applicable to that State. If the State's criteria are no less stringent than the promulgated Federal criteria, EPA will withdraw its criteria without notice and comment because additional comment on the criteria is unnecessary (see 65 FR 19659, April 12, 2000). However, if a State adopts criteria that are less stringent than the Federally-promulgated criteria, but which the Agency judges to meet the requirements of the Act, EPA will seek public comment before withdrawing the Federally-promulgated criteria (see 57 FR 60860, December 22, 1992). Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public comment procedures are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and opportunity for public comment.

There is good cause for making today's rule final without prior proposal and comment because, being identical or more stringent, the States' criteria are no less stringent than the Federal regulations. For the same reason, and because this rule relieves a Federal restriction, good cause exists to waive the requirement for a 30-day period before the amendment becomes effective. Therefore, the amendment is immediately effective. This rule does not remove any water quality protections. It removes a Federal regulation that duplicates State regulation.

Alaska

On March 30 and April 27, 1999, Alaska adopted revisions to its surface water quality standards (18 AAC 70). Alaska submitted the revisions to EPA for approval by letter dated May 10, 1999, and EPA received the revisions on May 13, 1999.

EPA Region 10 approved the State's freshwater and marine water aquatic life criteria for certain NTR pollutants on September 28, 2001, because they were identical to the NTR values and were consistent with both the CWA and EPA's implementing regulations at 40 CFR part 131. These pollutants are Nickel (acute), Selenium (acute and chronic), Zinc (acute), Pentachlorophenol (acute), and Toxaphene (acute). Today, EPA is withdrawing Federal water quality criteria applicable to Alaska for the freshwater and marine aquatic life criteria.

Arkansas

On January 23,1998, Arkansas adopted revisions to its surface water quality standards (Regulation 2, Establishing Water Quality Standards for the Surface Waters of the State of Arkansas, Minute Order 98-03). Arkansas adopted acute and/or chronic freshwater aquatic life criteria as noted and conversion factors for these metals contained in the NTR:

• Cadmium (acute and chronic),
• Chromium (III) (acute and chronic),
• Chromium (VI) (acute and chronic),
• Copper (acute and chronic),
• Lead (acute and chronic),
• Mercury (acute and chronic),
• Nickel (acute and chronic),
• Selenium (acute and chronic),
• Silver (acute), and Zinc (acute and chronic).

Arkansas also adopted acute and chronic freshwater aquatic life criteria for Cyanide. EPA Region 6 approved the State's dissolved metals criteria and Cyanide criteria on May 17, 2001, because Arkansas's numeric criteria were consistent with both the CWA and EPA's implementing regulations at 40 CFR part 131. With the adoption of these numeric criteria, Arkansas complied with the requirements of section 303(c)(2)(B) of the CWA to have numeric criteria for toxic pollutants.

Today, EPA is withdrawing Arkansas from the NTR for those criteria and, as a result, completely removing Arkansas from the NTR.

Puerto Rico

On September 21, 1990, EPA Region 2 received revisions to Puerto Rico's water quality standards. The Chairman of the Puerto Rico Environmental Quality Board (PREQB) informed EPA that it may not be the final submission, since PREQB had not completed its public hearing process. Because of this caveat, and because Puerto Rico had not submitted the requisite certification from its Secretary of Justice as required by 40 CFR 131.6(e), EPA Region 2 did not act on these revisions immediately. As previously noted, EPA included Puerto Rico in the NTR in 1992, in large part because EPA did not consider Puerto Rico's 1990 revisions adopted. The Commonwealth's Secretary of Justice ultimately submitted the required certification to EPA on February 25, 2002.

EPA took final action on all new and revised provisions of the 1990 Puerto Rico Water Quality Standards Regulation (PRWQSR) on March 28, 2002, after it received the required certification. EPA Region 2 approved Puerto Rico's numeric criteria because they were consistent with the CWA and EPA's implementing regulations at 40 CFR 131.11. For all of these pollutants, the criteria were no less stringent than the promulgated Federal criteria in the NTR.

Meanwhile, in October 2001, Puerto Rico began an effort to revise the PRWQSR. This effort included adopting numerous chemical-specific numeric criteria for toxic pollutants contained in the NTR. EPA Region 2 approved Puerto Rico's criteria on June 26, 2003, since the adopted 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. With few exceptions, the adopted criteria were identical to EPA's April 1999 national recommended water quality criteria. In most cases, these criteria were no less stringent than the promulgated Federal criteria in the NTR. Puerto Rico adopted several criteria that are less stringent than the promulgated Federal criteria in the NTR. Consequently, EPA is not including any of these pollutants in today's withdrawal of NTR criteria applicable to waters in Puerto Rico. The criteria adopted by Puerto Rico and approved by EPA but not included in today's rulemaking are:

• Dichlorobromomethane,
• Benzo(a)Anthracene,
• Benzo(a)Pyrene,
• Benzo(b)Flouranthene,
• Benzo(k)Flouranthene,
• Chrysene,
• Dibenzo(a,h)Anthracene,
• Indeno(1,2,3-cd)Pyrene, and
• Isophrone.

Today, EPA is removing Puerto Rico from the NTR only for those pollutants whose criteria are no less stringent than those in the NTR.

EPA is removing Puerto Rico from the NTR for the following pollutants:

• Antimony (human health—water & organism and organism only),
• Arsenic (all),
• Cadmium (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),
• Chromium III (aquatic life—freshwater (acute and chronic)),
• Chromium VI (aquatic life—freshwater (acute and chronic)),
• Copper (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),
• Lead (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),
• Mercury (aquatic life—freshwater (acute), aquatic life—marine water (acute), and human health—water & organism and organism only),
• Nickel (all),
• Selenium (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),
• Silver (aquatic life—freshwater (acute) and aquatic life—marine water (acute)),
• Zinc (aquatic life—freshwater (acute and chronic) and marine water (acute and chronic)),
• Cyanide (all),
• Asbestos (human health—water & organism),
• Acrolein (human health—water & organism and organism only),
• Acrylonitrile (human health—water & organism and organism only),
• Benzene (human health—water & organism and organism only),
• Bromoform (human health—water & organism and organism only),
• Carbon Tetrachloride (human health—water & organism and organism only),
• Chlorobenzene (human health—water & organism and organism only),
• Chlorodibromomethane (human health—water & organism and organism only),

regulatory requirements that might significantly or uniquely affect small governments and is therefore not subject to UMRA section 203.

• Chloroform (human health—water & organism and organism only),
• 1,2-Dichloroethane (human health—water & organism and organism only),
• 1,1-Dichloroethylene (human health—water & organism and organism only),
• 1,3-Dichloropropylene (human health—water & organism and organism only),
• Ethylbenene (human health—water & organism and organism only),
• Methyl Bromide (human health—water & organism and organism only),
• Methylene Chloride (human health—water & organism and organism only),
• 1,1,2,2-Tetrachloroethane (human health—water & organism and organism only),
• Tetrachloroethylene (human health—water & organism and organism only),
• Toluene (human health—water & organism and organism only),
• 1,1,2-Trichloroethane (human health—water & organism and organism only),
• Trichloroethylene (human health—water & organism and organism only),
• Vinyl Chloride (human health—water & organism and organism only),
• 2,4-Dichlorophenol (human health—water & organism and organism only),
• 2-Methyl-4,6-Dinitrophenol (human health—water & organism and organism only),
• Pentachlorophenol (human health—water & organism and organism only),
• Phenol (human health—water & organism and organism only),
• 2,4,6-Trichlorohenol (human health—water & organism and organism only),
• Anthracene (human health—water & organism and organism only),
• Benzidene (human health—water & organism and organism only),
• Bis (2-Chloroethyl) Ether (human health—water & organism and organism only),
• Bis (2-Chloroisopropyl) Ether (human health—water & organism and organism only),
• Bis (2-Ethylhexyl) Phthalate (human health—water & organism and organism only),
• 1,2-Dichlorobenzene (human health—water & organism and organism only),
• 1,3-Dichlorobenzene (human health—water & organism and organism only),
• 1,4-Dichlorobenzene (human health—water & organism and organism only),
• 3,3-Dichlorobenzidene (human health—water & organism and organism only),
• Diethyl Phthalate (human health—water & organism and organism only),
• Dimethyl Phthalate (human health—water & organism and organism only),
• Di-n-Butyl-Phthalate (human health—water & organism and organism only),
• 2,4-Dinitrotoluene (human health—water & organism and organism only),
• 1,2-Diphenylhydrazine (human health—water & organism and organism only),
• Fluoranthene (human health—water & organism and organism only),
• Fluorene (human health (water & organism)),
• Hexachlorobenzene (human health—water & organism and organism only),
• Hexachlorbutadiene (human health—water & organism and organism only),
• Hexachlorocyclopentadiene (human health—water & organism and organism only),
• Hexachloroethane (human health—water & organism and organism only),
• Nitrobenzene (human health—water & organism and organism only),
• N-Nitroso-dimethylamine (human health—water & organism and organism only),
• N-Nitrosodiphenylamine (human health—water & organism and organism only),
• Pyrene (human health—water & organism and organism only),
• Aldrin (aquatic life—freshwater (acute), aquatic life—marine water (acute), and human health—water & organism and organism only),
• gamma-BHC (aquatic life—freshwater (acute), aquatic life—marine water (acute), and human health—water & organism and organism only),
• Chlordane,
• 4,4-DDT, 4,4-DDE (human health—water & organism and organism only),
• 4,4-DDD (human health—water & organism and organism only),
• Dieldrin (all),
• a-Endosulfan (aquatic life—freshwater (acute and chronic) and human health—water & organism and organism only),
• b-Endosulfan (aquatic life—freshwater (acute and chronic) and human health—water & organism and organism only),
• Endrin (aquatic life—freshwater (acute), aquatic life—marine (acute and chronic), and human health—water & organism and organism only),
• Heptachlor (all), and
• Toxaphene (all).

III. Statutory and Executive Order Reviews

A. Executive Order 12866—Regulatory Planning and Review

This action withdraws Federal requirements applicable to Alaska, Arkansas, and Puerto Rico, 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 the Office of Management and Budget (OMB) review.

B. 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 Alaska, Arkansas, and Puerto Rico.

C. 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.

D. Unfunded Mandates 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 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.

E. 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.

F. 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” (59 FR 22951, November 6, 2000).

G. 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.

H. 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.

I. 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.

J. 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. 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 public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including reasons therefore, and established an effective date of October 29, 2004. 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
• Reporting and recordkeeping requirements
• Water pollution control

For reasons set out in the preamble of title 40, chapter I, of the Code of Federal Regulations 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.

2. Section 131.36 is amended as follows:

a. Revising the table in paragraph (d)(4)(ii),

b. Revising the table in paragraph (d)(12)(ii), and

c. Removing and reserving paragraph (d)(8).