22228 Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 131

[FRL–5196–2]

Stay of Federal Water Quality Criteria

for Metals

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Administrative stay.

SUMMARY: In December 1992, EPA

promulgated water quality criteria for

toxic pollutants in order to protect

human health and aquatic life in

fourteen states that had not adopted the

necessary toxics criteria as required by

the Clean Water Act. Some of the

criteria are for protection of aquatic life

from the effects of metals in the water.

After EPA promulgated the rule, EPA

issued a new policy for setting water

quality criteria for metals. In order to

allow permitting authorities in the states

covered by the rule the flexibility to

follow EPA’s new policy, the Agency is

staying the effectiveness of specific

metals criteria promulgated in the rule.

The stay will remain in effect until EPA

promulgates new metals criteria for the

states covered by the rule.

EFFECTIVE DATE: This stay is effective

April 14, 1995.

FOR FURTHER INFORMATION CONTACT: Tim

Kasten, Office of Science and

Technology, Office of Water (4304),

USEPA, 401 M Street SW., Washington,

D.C. 20460, (202) 260–5994.

SUPPLEMENTARY INFORMATION:

Background

In the National Toxics Rule (‘‘NTR’’),

EPA promulgated numeric water quality

criteria for toxic pollutants for fourteen

states and jurisdictions that had not

adopted sufficient criteria (‘‘NTR

states’’). 57 FR 60848 (December 22,

1992). That action brought those states

into compliance with section

303(c)(2)(B) of the Clean Water Act

(‘‘CWA’’) which requires states to adopt

criteria for all toxic pollutants the

discharge or presence of which could

interfere with state designated uses of

waters, and for which EPA had

published criteria.

Among the criteria that EPA

promulgated for the NTR states were

aquatic life water quality criteria for

metals (‘‘metals criteria’’). Aquatic life

water quality criteria are estimates of

the highest concentration of a substance

that may be present in water while

maintaining the protection of aquatic

life from acute or chronic effects. A

central issue in establishing and

implementing metals criteria is how to

accurately determine the fraction of the

total metal that is biologically available

and toxic.

At the time that EPA promulgated the

NTR, the Agency’s policy was to express

metals criteria using total recoverable

metal concentrations (‘‘total recoverable

metal’’). While metals criteria could be

implemented by measuring either total

recoverable metal or dissolved metal,

total recoverable metal measurement,

being more conservative, provided a

greater level of protection than

dissolved metal measurement. Because

the NTR was to cover a substantial

number of water bodies, EPA chose the

simplest, most protective approach, and

the one reflected in its criteria

documents to implement the metals

criteria, and promulgated metals criteria

based on total recoverable metal.

After promulgation of the NTR, the

Agency continued to address the issue

of how best to express metals criteria.

EPA held a meeting with invited experts

in January 1993 in Annapolis, Maryland

to further elicit comment on the use of

total recoverable metal versus dissolved

metal in developing national metals

criteria. The Agency solicited comments

on the recommendations made by

presenters at the meeting in the Federal

Register on July 9, 1993 (58 FR 32131).

Subsequently, EPA determined that

dissolved metal approximates the

biologically available fraction of

waterborne metals for aquatic organisms

better than total recoverable metal. On

October 1, 1993, the Agency issued

guidance on the interpretation and

implementation of metals criteria

providing that ‘‘[i]t is now the policy of

the Office of Water that the use of

dissolved metal to set and measure

compliance with water quality

standards is the recommended approach

* * *’’. Office of Water Policy and

Technical Guidance on Interpretation

and Implementation of Aquatic Life

Metals Criteria.

A number of parties brought lawsuits

challenging the NTR metals criteria. The

Plaintiffs in those lawsuits wanted the

permitting authorities in the NTR states

to use criteria based on dissolved metal.

EPA has concluded that it is in the

public interest to revise the metals

criteria promulgated in the NTR to

reflect the new metals policy. In

settlement of the litigation, EPA has

agreed to stay the numeric aquatic life

water quality criteria (expressed as total

recoverable metal) for: arsenic,

cadmium, chromium (III), chromium

(VI), copper, lead, mercury (acute only),

nickel, selenium (saltwater only), silver,

and zinc. This stay will be in effect until

EPA takes action to amend the NTR by

promulgating new metals criteria based

on dissolved metal.

Effective Date of the Stay

Pursuant to section 705 of the

Administrative Procedure Act (APA) (5

U.S.C. 705), ‘‘when an agency finds that

justice so requires, it may postpone the

effective date of actions taken by it,

pending judicial review.’’ EPA has

determined that this stay is necessary

pending resolution of the litigation.

Consequently, EPA finds issuance of

this stay is in the interests of justice.

In addition, under section 553 of the

APA (5 U.S.C. 553), when an Agency

finds good cause to exist, it may issue

a rule without first providing notice and

comment and make the rule

immediately effective. EPA believes that

it has good cause both to issue this stay

without notice and comment and to

make the stay immediately effective.

A stay of the metals criteria is central

to the settlement of the pending

litigation, and it is in the public interest

to avoid costly and potentially

protracted litigation by issuing a stay.

Further, the stay relieves a burden on

the regulated community. The stay will

avoid potential harm to dischargers in

the NTR states for which National

Pollutant Discharge Elimination System

permits are being issued pursuant to

section 402 of the Clean Water Act by

allowing permitting authorities to

establish permit limits based on

dissolved metal concentrations

consistent with current Agency policy.

It is not in the public interest to require

permitting authorities in the NTR states

to impose effluent limitations based on

total recoverable metal ambient water

quality criteria which EPA now

considers to be more stringent than may

be necessary to protect designated uses.

EPA considers staying the metals

criteria to be in the public interest as

noted above, and therefore good cause

exists to issue the stay without notice

and comment and to make the stay

immediately effective.

Regulatory Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (56 FR

51735, October 4, 1993), the Agency

must determine whether the regulatory

action is ‘‘significant’’ and therefore

subject to all the requirements of the

Executive Order (i.e., Regulatory Impact

Analysis and review by the Office of

Management and Budget). Under

section 3(f), the order defines

‘‘significant’’ as those actions likely to

lead to a rule: (1) Having an annual

effect on the economy of $100 million

or more, or adversely and materially
Federal Register / Vol. 60, No. 86 / Thursday, May 4, 1995 / Rules and Regulations 22229

1 In the NTR, EPA determined compliance with

Section 303(c)(2)(B) based on the status of State

compliance as of 1991, the date of the proposed

rulemaking, and then took into account EPA

approval actions between the proposed and final

rulemaking for those States included in the

proposed rule. EPA acknowledges that, due to

subsequent State actions to delete or otherwise

modify toxics criteria (e.g., see Table 1, 57 FR

60856, December 22, 1992), all States and

Territories currently may not be in full compliance

with Section 303(c)(2)(B).

2 Interim Guidance on Interpretation and

Implementation of Aquatic Life Criteria for Metals,

Continued

affecting a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities (also known as

‘‘economically significant’’); (2) creating

serious inconsistency or otherwise

interfering with an action taken or

planned by another agency; (3)

materially altering the budgetary

impacts of entitlements, grants, user

fees, or loan programs; or (4) raising

novel legal or policy issues arising out

of legal mandates, the President’s

priorities, or the principles set forth in

this order. Pursuant to the terms of this

order, EPA has determined that this stay

would not be ‘‘significant’’.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act,

5 U.S.C. 601 et seq., EPA is certifying

that a stay of these criteria would not

have a significant impact on a

substantial number of small businesses.

C. Paperwork Reduction Act

There are no information collection

requirements associated with this

administrative stay covered under the

provisions of the Paperwork Reduction

Act of 1980, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 131

Environmental protection, Water

pollution control, Water quality

standards, Toxic pollutants.

Dated: April 14, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the

preamble, part 131 of title 40 of the

Code of Federal Regulations is amended

as follows:

PART 131—[AMENDED]

1. The authority citation for part 131

continues to read as follows:

Authority: 33 U.S.C. 1251 et seq.

2. Part 131 is amended by adding at

the end of § 131.36(b)(1) the following

‘‘Note to paragraph (b)(1)’’:

§ 131.36 Toxics criteria for those States

not complying with Clean Water Act Section

303(c)(2)(B).

* * * * *

(b)(1) * * *

Note to paragraph (b)(1): On April 14,

1995, the Environmental Protection

Agency issued a stay of certain criteria

in paragraph (b)(1) of this section as

follows: the criteria in columns B and C

for arsenic, cadmium, chromium (VI),

copper, lead, nickel, silver, and zinc; the

criteria in B1 and C1 for mercury; the

criteria in column B for chromium (III);

and the criteria in column C for

selenium. The stay remains in effect

until further notice.

[FR Doc. 95–10147 Filed 5–3–95; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 131

[WH–FRL–5196–1]

Water Quality Standards;

Establishment of Numeric Criteria for

Priority Toxic Pollutants; States’

Compliance—Revision of Metals

Criteria

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Interim final rule, notice of data

availability and request for comments.

SUMMARY: EPA is promulgating new

aquatic life metals criteria for nine

States, Puerto Rico, and the District of

Columbia, that are subject to EPA’s 1992

National Toxics Rule (‘‘NTR’’). These

new metals criteria reflect EPA’s current

policy for setting water quality criteria

for metals. This interim final rule

establishes metals criteria that are

protective of aquatic life and

approximate, better than the 1992

criteria, the biologically available

fraction of water borne metals to aquatic

organisms. Use of the new metals

criteria will allow permitting authorities

in the nine States, Puerto Rico and the

District of Columbia, to establish

effluent limitations based on the new

metals criteria rather than the 1992

criteria which EPA now considers to be

more stringent than may be necessary to

protect designated uses for aquatic life.

The interim final rule will be in effect

while EPA considers public comments

and develops a final rule. This rule

terminates the Administrative Stay

published elsewhere in this issue of the

Federal Register.

DATES: This interim final rule is

effective April 15, 1995. Comments on

the interim final rule and other data

noticed in this preamble will be

accepted until July 3, 1995.

ADDRESSES: An original and 3 copies of

all comments and references on the

interim final rule and data should be

addressed to: Revision of the National

Toxics Rule-Dissolved Metals Criteria,

Comment Clerk; Water Docket (MC–

4101), U.S. Environmental Protection

Agency, 401 M Street SW., Washington,

DC 20460. The administrative record for

this rulemaking is available for review

and copying at the Environmental

Protection Agency, Office of Water

Docket, 401 M Street SW, Washington

DC, 20460, Room L102, on weekdays

during EPA’s normal business hours of

8 a.m. until 4:30 p.m. For access to the

Docket materials, call (202) 260–3027

between 9:00a.m.–3:30p.m., for an

appointment. A reasonable fee will be

charged for photocopies.

FOR FURTHER INFORMATION CONTACT:

Timothy J. Kasten, telephone 202–260–

5994.

SUPPLEMENTARY INFORMATION:

A. General Background

1. Regulatory Background

In the NTR, EPA promulgated

numeric water quality criteria for 12

States, Puerto Rico, and the District of

Columbia, that failed to comply fully

with Section 303(c)(2)(B) of the Clean

Water Act. (57 FR 60848, December 22,

1992 codified in the Code of Federal

Regulations at 40 CFR 131.36).1 Those

criteria became the legally enforceable

water quality standards in the named

States, Puerto Rico, and the District of

Columbia, for all purposes and

programs under the Clean Water Act on

February 5, 1993. Included among the

water quality criteria promulgated in the

NTR were numeric criteria for the

protection of aquatic life for 11 metals:

arsenic, cadmium, chromium (III),

chromium (VI), copper, lead, mercury,

nickel, selenium, silver, and zinc.

The Agency received extensive public

comment during the development of the

NTR regarding the most appropriate

approach for expressing the metals

criteria. The principal issue was the

correlation between metals that are

measured and metals that are

bioavailable and toxic to aquatic life.

2. Policy on Aquatic Life Metals Criteria

At the time of the NTR promulgation,

Agency policy was to express metals

criteria, as recommended in its Section

304(a) criteria documents, as total

recoverable metal measurements.

Agency guidance prior to the NTR

promulgation indicated that metals

criteria may be expressed either as total

recoverable metal or dissolved metal.2