[Federal Register Volume 60, Number 86 (Thursday, May 4, 1995)]
[Rules and Regulations]
[Pages 22228-22229]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10147]




[[Page 22227]]

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Part IV





Environmental Protection Agency





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40 CFR Part 131



Stay of Federal Water Quality Criteria for Metals; Water Quality 
Standards; Establishment of Numeric Criteria for Priority Toxic 
Pollutants; States' Compliance--Revision of Metals Criteria; Final 
Rules

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

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.

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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 [[Page 22229]] 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 Sec. 131.36(b)(1) 
the following ``Note to paragraph (b)(1)'':


Sec. 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