[Federal Register Volume 62, Number 197 (Friday, October 10, 1997)]
[Rules and Regulations]
[Pages 53212-53214]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27019]



[[Page 53211]]

_______________________________________________________________________

Part V





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 131



Withdrawal From Federal Regulations of Nineteen Acute Aquatic Life 
Water Quality Criteria Applicable to Alaska; Final Rule

Federal Register / Vol. 62, No. 197 / Friday, October 10, 1997 / 
Rules and Regulations

[[Page 53212]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-5903-7]


Withdrawal From Federal Regulations of Nineteen Acute Aquatic 
Life Water Quality Criteria Applicable to Alaska

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 several states, 
including Alaska (40 CFR 131.36). Among the criteria promulgated for 
Alaska were acute aquatic life criteria for 24 pollutants. Recently, 
Alaska has clarified that certain criteria they have previously adopted 
are no less stringent than the acute aquatic life water quality 
criteria in the federal regulations. Based on the state's 
clarification, EPA is amending the federal regulations to withdraw 
acute aquatic life criteria for 19 pollutants applicable to waters of 
Alaska. EPA is withdrawing these criteria without a notice and comment 
rulemaking because the State's acute aquatic life criteria are no less 
stringent than the federal criteria. Federal aquatic life criteria for 
5 pollutants continue to apply to Alaska as well as federal human 
health criteria for carcinogens.

DATES: This amendment is effective October 10, 1997.

ADDRESSES: The administrative record for consideration of Alaska's 
acute aquatic life criteria is available for public inspection at EPA 
Region 10, Office of Water, 1200 Sixth Avenue, Seattle, Washington, 
98101, during normal business hours of 8 a.m. to 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 Sally Brough in EPA's Region 10 at 206-553-1295.

SUPPLEMENTARY INFORMATION:

A. Potentially Affected Entities
B. Background
C. Basis for Partial Withdrawal of Criteria
D. Related Issues
    1. Metals Expressed as Total Recoverable
    2. Specified Criteria
E. Executive Order 12866
F. Unfunded Mandates Reform Act
G. Regulatory Flexibility Act
H. Paperwork Reduction Act
I. Submission to Congress and the General Accounting Office

A. Potentially Affected Entities

    Citizens concerned with water quality in Alaska may be interested 
in this rulemaking. Entities discharging toxic pollutants to waters of 
the United States in Alaska could be affected by this rulemaking since 
acute aquatic life 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 Alaska.          
Municipalities............................  Publicly-owned treatment    
                                             works discharging          
                                             pollutants to surface      
                                             waters in Alaska.          
------------------------------------------------------------------------

    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 1992, EPA promulgated a final rule known as the National Toxics 
Rule or NTR. The NTR established numeric water quality criteria for 12 
States and 2 Territories (hereafter ``States'') that had failed to 
comply 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 
applicable water quality standards in those 14 jurisdictions for all 
purposes and programs under the CWA effective February 5, 1993.
    When a State adopts criteria that meet the requirements of the CWA, 
EPA's policy is to withdraw the federal criteria. If the State's 
criteria are no less stringent than the federal regulations, EPA has 
determined that additional comment on the criteria is unnecessary and 
constitutes good cause for issuing a final rule without notice and 
comment. For the same reason, EPA has determined that good cause exists 
to waive the requirement for a 30-day period before the amendment 
becomes effective and therefore, the amendment will be immediately 
effective. EPA has determined that both of these circumstances apply in 
this case.

C. Basis for Partial Withdrawal of Criteria

    Water quality criteria applicable in Alaska were included in the 
NTR due to ambiguity about whether the State had adopted by reference 
acute aquatic life criteria cited in EPA's Quality Criteria for Water 
July 1976, 45 FR 79318 (Nov. 28, 1980), 49 FR 5831 (Feb. 15, 1984), and 
50 FR 30784 (July 29, 1985). EPA included Alaska in the NTR for acute 
aquatic life criteria based on statements in two state documents (the 
State's Water Quality Standards Workbook published in July 1991 and an 
August 30, 1991 letter from the Alaska Department of Environmental 
Conservation (ADEC) to EPA Region 10), indicating that Alaska had 
adopted only chronic criteria. In a December 19, 1996 letter, ADEC 
clarified for EPA that Alaska had adopted both acute and chronic 
aquatic life criteria for toxic pollutants by reference in 1987. ADEC 
indicated that the statements in the two 1991 non-regulatory documents 
indicating the state had adopted only chronic aquatic life criteria 
were misstatements. Alaska explained that the adoption by reference of 
EPA criteria, in Note 5 to Alaska's water quality standards table at 18 
AAC 70.020(b), implicitly includes both acute and chronic aquatic life 
criteria. EPA Region 10 had approved the 1987 changes to the Alaska 
water quality standards, including the adoption of toxic criteria by 
reference found in Note 5, by letter dated April 6, 1987. Today's 
action is based on Alaska's explanation of what aquatic life water 
quality criteria are included in its water quality standards.

D. Related Issues

1. Metals Expressed as Total Recoverable

    The December 19, 1996 letter from ADEC to EPA also clarified that 
Alaska's metals criteria are to be measured as total recoverable metal. 
This approach is available to states implementing their own criteria. 
The NTR as amended (60 FR 22229, May 4, 1995) expresses aquatic life 
metals criteria for metals as dissolved metal with the exception of 
Fresh Water acute and chronic criteria for selenium.
    As noted above, Alaska adopted metals criteria by referencing EPA's 
criteria at 45 FR 79318 (Nov. 28, 1980) and 50 FR 30784 (July 29, 
1985). In the 1980 FR notice, EPA established water quality criteria 
for metals as measured

[[Page 53213]]

with the total recoverable method. In the 1985 FR notice, EPA published 
water quality criteria for metals as measured with the acid soluble 
method, but acknowledged that a final approved acid soluble method was 
unavailable and recommended the continued use of the total recoverable 
method. This statement apparently caused confusion over what sample 
preparation method Alaska should use to implement EPA's 1985 metals 
criteria it had adopted by reference.
    The December 19, 1996 ADEC letter acknowledges that Alaska's 
aquatic life criteria for metals are indeed expressed as total 
recoverable criteria. ADEC has indicated it will consistently apply 
aquatic life criteria for metals as total recoverable to water quality 
actions and decisions in Alaska, including NPDES permits, section 
303(d) lists, and TMDL development.

2. Specified Criteria

    Alaska has identified in the table below, the acute aquatic life 
criteria that were adopted by reference that are no less stringent than 
the Federal criteria in the NTR. A comparison of the criteria found in 
the NTR and in the EPA documents which Alaska adopted by reference 
raised questions regarding the stringency comparison for lead, lindane/
gamma BHC, endosulfan, and heptachlor. In the case of lead, the 
freshwater (FW) hardness equation in the NTR is different from the 
hardness equation adopted by Alaska. The NTR lists FW and saltwater 
(SW) acute aquatic life criteria for gamma BHC while Alaska adopted 
criteria for lindane. Alaska adopted FW and SW aquatic life criteria 
for endosulfan by citing EPA's 1980 Federal Register notice. However, 
the NTR acknowledges the separate toxicity of the alpha and beta 
isomers of endosulfan. Similarly, Alaska adopted FW and SW criteria for 
heptachlor while the NTR contains separate criteria for heptachlor and 
heptachlor epoxide (a breakdown product of heptachlor). The following 
table shows the acute aquatic life criteria, adopted by Alaska, for 
which EPA is withdrawing Alaska from the NTR. Footnotes 1 and 2 explain 
EPA Region 10's determinations for lead and lindane. Footnotes 3 and 4 
explain how Alaska interprets their criteria for endosulfan and 
heptachlor.

Alaska Acute Aquatic Life Criteria (in <greek-m>g/l), Adopted in Note 5 of the Alaska Water Quality Standards 18
                                                  AAC 70.020(b)                                                 
                                                [December, 1996]                                                
----------------------------------------------------------------------------------------------------------------
                                                                                                     Salt water 
                                                                                                        acute   
                 Compound                              Fresh water acute (<greek-m>g/l)             (<greek-m>g/
                                                                                                         l)     
----------------------------------------------------------------------------------------------------------------
1. Arsenic (TR)...........................  360...................................................        69    
2. Cadmium (TR)...........................  * e<SUP>(1.128[ln(H)]-3.828)...............................        43    
3. Chromium III (TR)......................  * e<SUP>(0.819[ln(H)]+3.688)...............................  ...<SUP>.........
4. Chromium VI (TR).......................  16....................................................      1100    
5. Copper (TR)............................  * e<SUP>(0.9422(ln(H)]-1.464)..............................         2.9  
6. Lead (TR) <SUP>1............................  * e<SUP>(1.266[ln(H)]-1.416)...............................       140    
7. Mercury (TR)...........................  2.4...................................................         2.1  
8. Silver (TR)............................  * e<SUP>(1.72[ln(H)]-6.52).................................         2.3  
9. Cyanide................................  22....................................................         1.0  
10. Aldrin................................  3.0...................................................         1.3  
11. Lindane/Gamma-BHC \2\.................  2.0...................................................         0.16 
12. Chlordane.............................  2.4...................................................         0.09 
13. DDT, 4,4'-............................  1.1...................................................         0.13 
14. Dieldrin..............................  2.5...................................................         0.71 
15. Endosulfan \3\........................  0.22..................................................         0.034
16. Endrin................................  0.18..................................................         0.037
17. Heptachlor \4\........................  0.52..................................................         0.053
18. Toxaphene.............................                                                                 0.070 
----------------------------------------------------------------------------------------------------------------
TR Total Recoverable method for measuring metal concentrations.                                                 
* Hardness dependent metals--numeric criteria are calculated using the equations in the above table where H =   
  ambient hardness. For example, the numeric criteria using 100 mg/l of hardness are: cadmium = 3.9 <greek-m>g/ 
  l, chromium III = 1700 <greek-m>g/l, copper = 18 <greek-m>g/l, lead = 83 <greek-m>g/l, and silver = 4.1 <greek-
  m>g/l.                                                                                                        
\1\ Alaska adopted the 1985 federal criteria document for lead which contains a hardness based equation to      
  calculate the numeric criterion using ambient hardness. The NTR hardness equation for FW acute aquatic life   
  for lead is different than the 1985 equation. However, the calculated numeric values for any specific ambient 
  hardness, using the two different equations, are within a few <greek-m>g/l of each other. Since the calculated
  values from the two equations are so close, EPA has determined by letter written on Sept. 18, 1996, to the    
  ADEC that the 1985 equation is functionally equivalent to the NTR equation for purposes of NTR removal.       
\2\ Alaska adopted acute aquatic life criteria for hexachlorocyclohexane (Lindane and a mixture of BHC isomers) 
  from the 1980 Federal Register (45 FR 79335). The NTR only includes gamma BHC. Lindane and gamma-BHC have the 
  same Chemical Abstract Service (CAS) numbers and are the same compounds. Therefore, Alaska's Lindane criteria 
  apply to gamma BHC. EPA has determined that Alaska can be removed from the NTR for gamma BHC (EPA letter dated
  September 18, 1996).                                                                                          
\3\ Alaska adopted the endosulfan criteria by reference from the 1980 FR (45 FR 79334). The NTR has criteria for
  the two endosulfan isomers, alpha and beta endosulfan. Alaska interprets its endosulfan criteria in this table
  to apply to the summation of both alpha and beta isomers of endosulfan.                                       
\4\ Alaska adopted heptachlor criteria from the 1980 FR (45 FR 79335). The NTR includes criteria for heptachlor 
  and heptachlor epoxide (a breakdown product of heptachlor). Alaska interprets its heptachlor criteria in this 
  table to apply as a summation of both heptachlor and heptachlor epoxide.                                      

    Alaska has not requested removal from the NTR for the following 
acute aquatic life criteria: freshwater (FW) and saltwater (SW) nickel, 
FW and SW selenium, FW and SW zinc, FW and SW pentachlorophenol, and FW 
toxaphene. The acute aquatic life criteria adopted by reference by 
Alaska for these five pollutants are less stringent than the Federal 
criteria. The NTR criteria for these five pollutants continue to apply 
in Alaska.

E. 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

[[Page 53214]]

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
    (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.
    The withdrawal of certain federal acute aquatic life criteria 
applicable to Alaska 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.

F. Unfunded Mandates Reform Act

    Today's 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) (Pub. 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.

G. Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA) (5 USC 601 et seq.), 
whenever a federal agency promulgates a final rule after being required 
to publish a general notice of proposed rulemaking under section 553 of 
the Administrative Procedures Act (APA), the agency generally must 
prepare a final regulatory flexibility analysis describing the economic 
impact of the regulatory action on small entities. EPA has not prepared 
a final regulatory flexibility analysis for this action because the 
Agency was not required to publish a general notice of proposed 
rulemaking for this rule.
    As explained above, section 553 of the APA provides that, when an 
agency for good cause finds that notice and public procedure are 
impracticable, unnecessary and contrary to the public interest, an 
agency may first issue a rule without providing notice and an 
opportunity for public comment. EPA has determined that there is good 
cause for making today's rule final without notice and opportunity for 
comment for the reasons spelled out above. In these circumstances, the 
RFA does not require preparation of a final regulatory flexibility 
analysis. Today's final rule establishes no requirements applicable to 
small entities.

H. Paperwork Reduction Act

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

I. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as amended 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 6, 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)(12)(ii) is amended in use classifications, 
(1)(A)i, (1)(A)iii, (1)(B)i, (1)(B)ii, and (1)(C) under the listing of 
applicable criteria, by replacing ``all'' with ``#9, 10, 13, 53, and 
126'' for Column B1.
    3. Section 131.36(d)(12)(ii) is amended in use classifications, 
(2)(A)i, (2)(B)i, (2)(B)ii, (2)(C), and (2)(D) under the listing of 
applicable criteria, by replacing ``all'' with ``# 9, 10, 13, and 53'' 
for column C1.

[FR Doc. 97-27019 Filed 10-9-97; 8:45 am]
BILLING CODE 6560-50-P