[Federal Register Volume 62, Number 196 (Thursday, October 9, 1997)]
[Rules and Regulations]
[Pages 52926-52927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26862]



[[Page 52925]]

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Part VI





Environmental Protection Agency





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40 CFR Part 131



Withdrawal From Federal Regulations of Arsenic Human Health Water 
Quality Criteria Applicable to Idaho; Final Rule

Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / 
Rules and Regulations

[[Page 52926]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-5903-4]


Withdrawal From Federal Regulations of Arsenic Human Health Water 
Quality Criteria Applicable to Idaho

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This rule amends the federal regulations by withdrawing the 
federal human health water quality criteria for arsenic applicable to 
Idaho. Idaho adopted human health criteria for arsenic and EPA 
subsequently approved those criteria. On November 29, 1996, EPA 
published a proposed rule and provided an opportunity for public 
comment on the withdrawal of the federal criteria for arsenic. EPA 
received one comment, which supported the withdrawal action.

EFFECTIVE DATE: November 10, 1997.

ADDRESSES: The administrative record for this action is available for 
review and copying at the U.S. EPA Region 10, Office of Water, 1200 
Sixth Avenue, Seattle, Washington 98101, between 8:00 a.m. and 4:30 
p.m.

FOR FURTHER INFORMATION CONTACT: Fred Leutner at EPA Headquarters, 
Office of Water, 401 M Street, SW, Washington, D.C. 20460 (202-260-
1542) or Lisa Macchio in EPA's Region 10 at 206-553-1834.

SUPPLEMENTARY INFORMATION:

A. Potentially Affected Entities.
B. Background.
C. Executive Order 12866.
D. Unfunded Mandates Reform Act.
E. Regulatory Flexibility Act.
F. Paperwork Reduction Act.
G. Submission to Congress and the General Accounting Office.

A. Potentially Affected Entities

    Citizens concerned with water quality in Idaho may be interested in 
this rulemaking. Entities discharging pollutants to waters of the 
United States in Idaho could be affected by this rulemaking since human 
health criteria are used in determining national pollutant discharge 
elimination system (NPDES) permit limits. Categories and entities which 
may ultimately be affected include:

------------------------------------------------------------------------
                                             Examples of potentially    
               Category                         affected entities       
------------------------------------------------------------------------
Industry..............................  Industries discharging          
                                         pollutants to surface waters in
                                         Idaho.                         
Municipalities........................  Publicly-owned treatment works  
                                         discharging pollutants to      
                                         surface waters in Idaho.       
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be affected by this 
action. This table lists the types of entities that EPA is now aware 
could potentially be affected by this action. Other types of entities 
not listed in the table could also potentially be affected by this 
action. To determine whether your facility is affected by this action, 
you should carefully examine the applicability criteria in Sec. 131.36 
of Title 40 of the Code of Federal Regulations (CFR). If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in FOR FURTHER INFORMATION CONTACT 
section.

B. Background

    In l992, EPA promulgated a final rule (known as the National Toxics 
Rule) to establish numeric water quality criteria for 12 States and 2 
Territories (hereafter ``States'') that had failed to comply fully with 
section 303(c)(2)(C) of the Clean Water Act (57 FR 60848). The 
criteria, codified at 40 CFR 131.36, became the applicable water 
quality standards in those 14 jurisdictions for all purposes and 
programs under the Clean Water Act effective February 5, l993.
    When a State adopts criteria that meet the requirements of the 
Clean Water Act, EPA withdraws its criteria. If the State's criteria 
are no less stringent than the federal regulations, EPA will withdraw 
its criteria without notice and comment rulemaking since additional 
comment on the criteria is unnecessary. If a State's criteria are less 
stringent than the federal regulations, EPA will withdraw its criteria 
only after notice and opportunity for public comment on that decision 
(see 57 FR 60860).
    On August 24, 1994, Idaho adopted revisions to its surface water 
quality standards (Title 1, Chapter 2, section 250 of the Idaho 
Administrative Code), regarding surface water quality criteria for 
toxic pollutants. For all pollutants except arsenic, Idaho adopted by 
reference EPA's criteria. EPA Region 10 approved Idaho's criteria and 
recommended to the Administrator that she withdraw the federal human 
health criteria applicable to Idaho. In a separate final action 
published in the Federal Register on November 29, 1996, EPA withdrew 
without public comment those human health criteria applicable to Idaho 
for which the State has adopted criteria identical to the federal 
criteria (see 61 FR 60616).
    Idaho adopted human health criteria for arsenic (0.020 <greek-m>g/l 
for the consumption of water and organisms and 6.2 <greek-m>g/l for the 
consumption of organisms); these criteria are less stringent than the 
federal regulations (0.018 <greek-m>g/l for the consumption of water 
and organisms and 0.14 <greek-m>g/l for the consumption of organisms). 
Idaho's criteria for arsenic differ from the federal criteria because 
the State used a bioconcentration factor (BCF) to derive its criteria 
that is different from the BCF used by EPA. Idaho selected a BCF that 
the State believes more accurately reflects the species of fish present 
in State's surface waters. EPA had indicated in the preamble to the 
National Toxic Rule that states may select fish species in developing 
BCF values that would better reflect species found in State waters (see 
57 FR 60888). Having reviewed Idaho's submission, EPA concluded that 
the State's choice of a BCF to calculate the arsenic criteria was 
appropriate and the State's arsenic criteria met the requirements of 
the Clean Water Act.
    Because the State's arsenic criteria are less stringent than the 
federal criteria, EPA proposed to withdraw the human health criteria 
for arsenic applicable to Idaho and solicited public comment on that 
proposal (61 FR 60672; November 29, 1996). EPA received one comment on 
the proposed rule. The commenter agreed with the appropriateness of 
Idaho's ambient water quality criteria for arsenic for the protection 
of human health.

C. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether a regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines a 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or

[[Page 52927]]

    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    This withdrawal of the arsenic human health criteria imposes no 
additional regulatory requirements. Therefore, it has been determined 
that this rule is not a ``significant regulatory action'' under the 
terms of Executive Order 12866 and is not subject to OMB review.

D. Unfunded Mandates Reform Act

    This action will not result in the annual expenditure of $100 
million or more for State, local, and tribal governments, in the 
aggregate, or to the private sector, and is not a Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (UMRA) (P.L. 104-
4), nor does it uniquely affect small governments in any way. As such, 
the requirements of sections 202, 203, and 205 of Title II of the UMRA 
do not apply to this action.

E. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 USC 601 et seq.), 
whenever a federal agency is required to publish a general notice of 
rulemaking or promulgates a final rule, the agency is generally 
required to prepare an analysis describing the economic impact of the 
regulatory action on small entities. However, under section 605(b) of 
the RFA, if the head of the agency certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities, the agency is not required to prepare an RFA analysis. 
Today's final rule establishes no requirements applicable to small 
entities, and so is not susceptible to a regulatory flexibility 
analysis.
    This rule amends the National Toxics Rule (NTR), codified at 40 CFR 
131.36, which promulgated federal water quality criteria to bring 
several states into compliance with Clean Water Act requirements. The 
NTR did not itself establish any requirements that are applicable to 
small entities. The NTR criteria are implemented through various state 
water quality control programs, including the NPDES permit program that 
limits the discharge of contaminants into navigable waters. The NPDES 
permit process is implemented by an authorized State, or absent an 
approved state program, by EPA (the permit authority). Authorized 
states and EPA have considerable discretion in carrying out the permit 
program to meet water quality standards. Accordingly, while a 
permitting authority's implementation of federally-promulgated water 
quality criteria may ultimately affect small entities by changing their 
permit limits, the criteria themselves do not apply to any discharger, 
including small entities.
    Since the NTR, as explained above, does not itself establish any 
requirements that are applicable to small entities, certainly 
withdrawing federal water quality criteria from the NTR would not 
establish any requirements applicable to small entities. Moreover, even 
if the State criteria that replace the federal criteria are more 
stringent than the federal criteria, the State criteria themselves 
would not affect small entities. As explained previously, the permit 
authority implements the criteria through its permitting program where 
it will have a number of discretionary choices in developing permit 
limits.
    For these reasons, the Administrator is certifying that this rule 
will not have a significant impact on a substantial number of small 
entities. Therefore the Agency has not prepared a regulatory 
flexibility analysis.

F. Paperwork Reduction Act

    This final rule does not impose any requirement subject to the 
Paperwork Reduction Act.

G. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, EPA submitted 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 
General Accounting Office prior to publication of the rule in today's 
Federal Register. This rule is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

    Environmental protection, Water pollution control, Water quality 
standards.

    Dated: October 2, 1997.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I, part 
131 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.


Sec. 131.36  [Amended]

    2. Section 131.36(d)(13)(i) is amended by removing the following 
uses classifications: ``16.01.2100.01.b. Domestic Water Supplies'', 
``16.01.2100.03.a. Primary Contact Recreation'', and ``16.01.2100.03.b. 
Secondary Contact Recreation''.
    3. Section 131.36(d)(13)(ii) is amended by removing the following 
use classifications and corresponding applicable criteria: ``01.b'', 
``03.a'', ``03.b.''.
    4. Section 131.36(d)(13)(ii) is amended in ``02.a'', ``02.b.'', 
``02.cc'' use classification, under the listing of applicable criteria, 
by removing ``Column D2''.
    5. Section 131.36(d)(13)(iii) is removed in its entirety.

[FR Doc. 97-26862 Filed 10-8-97; 8:45 am]
BILLING CODE 6560-50-P