53212 Federal Register / Vol. 62, No. 197 / Friday, October 10, 1997 / Rules and Regulations

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.

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:

Category Examples of potentially 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 § 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
Federal Register / Vol. 62, No. 197 / Friday, October 10, 1997 / Rules and Regulations 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 μg/l), ADOPTED IN NOTE 5 OF THE ALASKA WATER QUALITY STANDARDS 18

AAC 70.020(b)

[December, 1996]

Compound Fresh water acute (μg/l) Salt water

acute (μg/l)

1. Arsenic (TR) ............................................................................................................................. 360 .............................................. 69

2. Cadmium (TR) ......................................................................................................................... * e(1.128[ln(H)]-3.828) ......................... 43

3. Chromium III (TR) .................................................................................................................... * e(0.819[ln(H)]∂3.688) ....................... ......................

4. Chromium VI (TR) .................................................................................................................... 16 ................................................ 1100

5. Copper (TR) ............................................................................................................................. * e(0.9422(ln(H)]–1.464) ....................... 2.9

6. Lead (TR) 1 ............................................................................................................................... * e(1.266[ln(H)]–1.416) ......................... 140

7. Mercury (TR) ............................................................................................................................ 2.4 ............................................... 2.1

8. Silver (TR) ................................................................................................................................ * e(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 μg/l, chromium III = 1700 μg/l, copper = 18 μg/l, lead = 83 μg/l, and silver = 4.1 μg/l. 1Alaska 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 μg/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. 2Alaska 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). 3Alaska 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. 4Alaska 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
53214 Federal Register / Vol. 62, No. 197 / Friday, October 10, 1997 / Rules and Regulations

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.

§ 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]

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