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: May 4, 1995]
[[Page 22227]]
Part IV
Environmental Protection Agency
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
[[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.
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]
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