52926 Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations

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.

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:

Category Examples of potentially

affected entities

Industry .............. Industries discharging pollutants to surface waters

in Idaho.

Category Examples of potentially

affected entities

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 § 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 μg/l for the

consumption of water and organisms

and 6.2 μg/l for the consumption of

organisms); these criteria are less

stringent than the federal regulations

(0.018 μg/l for the consumption of water

and organisms and 0.14 μg/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
Federal Register / Vol. 62, No. 196 / Thursday, October 9, 1997 / Rules and Regulations 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 federallypromulgated 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.

§ 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