65FR31681 Water Quality Standards; Establishment of Numeric Criteria for Priority Toxic Pollutants for the State of California, Part 1/4
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[Federal Register: May 18, 2000 (Volume 65, Number 97)]
[Rules and Regulations]
[Page 31681-31719]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18my00-16]
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Part III
Environmental Protection Agency
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40 CFR Part 131
Water Quality Standards; Establishment of Numeric Criteria for Priority
Toxic Pollutants for the State of California; Rule
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-6587-9]
RIN 2040-AC44
Water Quality Standards; Establishment of Numeric Criteria for
Priority Toxic Pollutants for the State of California
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: This final rule promulgates: numeric aquatic life criteria for
23 priority toxic pollutants; numeric human health criteria for 57
priority toxic pollutants; and a compliance schedule provision which
authorizes the State to issue schedules of compliance for new or
revised National Pollutant Discharge Elimination System permit limits
based on the federal criteria when certain conditions are met.
EPA is promulgating this rule based on the Administrator's
determination that numeric criteria are necessary in the State of
California to protect human health and the environment. The Clean Water
Act requires States to adopt numeric water quality criteria for
priority toxic pollutants for which EPA has issued criteria guidance,
the presence or discharge of which could reasonably be expected to
interfere with maintaining designated uses.
EPA is promulgating this rule to fill a gap in California water
quality standards that was created in 1994 when a State court
overturned the State's water quality control plans which contained
water quality criteria for priority toxic pollutants. Thus, the State
of California has been without numeric water quality criteria for many
priority toxic pollutants as required by the Clean Water Act,
necessitating this action by EPA. These Federal criteria are legally
applicable in the State of California for inland surface waters,
enclosed bays and estuaries for all purposes and programs under the
Clean Water Act.
EFFECTIVE DATE: This rule shall be effective May 18, 2000.
ADDRESSES: The administrative record for today's final rule is
available for public inspection at the U.S. Environmental Protection
Agency, Region 9, Water Division, 75 Hawthorne Street, San Francisco,
California 94105, between the hours of 8:00 a.m. and 4:30 p.m. For
access to the administrative record, call Diane E. Fleck, P.E., Esq. at
415 744-1984 for an appointment. A reasonable fee will be charged for
photocopies.
FOR FURTHER INFORMATION CONTACT: Diane E. Fleck, P.E., Esq. or Philip
Woods, U.S. Environmental Protection Agency, Region 9, Water Division,
75 Hawthorne Street, San Francisco, California 94105, 415-744-1984 or
415-744-1997, respectively.
SUPPLEMENTARY INFORMATION: This preamble is organized according to the
following outline:
A. Potentially Affected Entities
B. Introduction and Overview
1. Introduction
2. Overview
C. Statutory and Regulatory Background
D. California Water Quality Standards Actions
1. California Regional Water Quality Control Board Basin Plans, and
the Inland Surface Waters Plan (ISWP) and the Enclosed Bays and
Estuaries Plan (EBEP) of April 1991
2. EPA's Review of California Water Quality Standards for Priority
Toxic Pollutants in the ISWP and EBEP, and the National Toxics Rule
3. Status of Implementation of CWA Section 303(c)(2)(B)
4. State-Adopted, Site-Specific Criteria for Priority Toxic
Pollutants
a. State-Adopted Site-Specific Criteria Under EPA Review
b. State-Adopted Site-Specific Criteria With EPA Approval
E. Rationale and Approach For Developing the Final Rule
1. Legal Basis
2. Approach for Developing this Rule
F. Derivation of Criteria
1. Section 304(a) Criteria Guidance Process
2. Aquatic Life Criteria
a. Freshwater Acute Selenium Criterion
b. Dissolved Metals Criteria
c. Application of Metals Criteria
d. Saltwater Copper Criteria
e. Chronic Averaging Period
f. Hardness
3. Human Health Criteria
a. 2,3,7,8-TCDD (Dioxin) Criteria
b. Arsenic Criteria
c. Mercury Criteria
d. Polychlorinated Biphenyls (PCBs) Criteria
e. Excluded Section 304(a) Human Health Criteria
f. Cancer Risk Level
G. Description of Final Rule
1. Scope
2. EPA Criteria for Priority Toxic Pollutants
3. Implementation
4. Wet Weather Flows
5. Schedules of Compliance
6. Changes from Proposed Rule
H. Economic Analysis
1. Costs
2. Benefits
I. Executive Order 12866, Regulatory Planning and Review
J. Unfunded Mandates Reform Act of 1995
K. Regulatory Flexibility Act
L. Paperwork Reduction Act
M. Endangered Species Act
N. Congressional Review Act
O. Executive Order 13084, Consultation and Coordination With Indian
Tribal Governments
P. National Technology Transfer and Advancement Act
Q. Executive Order 13132 on Federalism
R. Executive Order 13045 on Protection of Children From
Environmental Health Risks and Safety Risks
A. Potentially Affected Entities
Citizens concerned with water quality in California may be
interested in this rulemaking. Entities discharging pollutants to
waters of the United States in California could be affected by this
rulemaking since water quality criteria are used by the State in
developing National Pollutant Discharge Elimination System (NPDES)
permit limits. Categories and entities that ultimately may be affected
include:
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Category Examples of potentially affected entities
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Industry..................... Industries discharging pollutants to
surface waters in California or to
publicly-owned treatment works.
Municipalities............... Publicly-owned treatment works
discharging pollutants to surface waters
in California
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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 be affected. To determine whether
your facility might be affected by this action, you should carefully
examine the applicability criteria in Sec. 131.38(c). If you have
questions regarding the applicability of this action to a particular
entity, consult the persons listed in the preceding FOR FURTHER
INFORMATION CONTACT section.
[[Page 31683]]
B. Introduction and Overview
1. Introduction
This section introduces the topics which are addressed in the
preamble and provides a brief overview of EPA's basis and rationale for
promulgating Federal criteria for the State of California. Section C
briefly describes the evolution of the efforts to control toxic
pollutants; these efforts include the changes enacted in the 1987 CWA
Amendments, which are the basis for this rule. Section D summarizes
California's efforts since 1987 to implement the requirements of CWA
section 303(c)(2)(B) and describes EPA's procedure and actions for
determining whether California has fully implemented CWA section
303(c)(2)(B). Section E provides the rationale and approach for
developing this final rule, including a discussion of EPA's legal basis
for this final rule. Section F describes the development of the
criteria included in this rule. Section G summarizes the provisions of
the final rule and discusses implementation issues. Sections H, I, J, K
, L, M, N, O, P, and Q briefly address the requirements of Executive
Order 12866, the Unfunded Mandates Reform Act of 1995, the Regulatory
Flexibility Act, the Paperwork Reduction Act, the Endangered Species
Act, the Congressional Review Act, Executive Order 13084, Consultation
and Coordination with Indian Tribal Governments, the National
Technology Transfer and Advancement Act, and Executive Order 13132,
Federalism, respectively.
The proposal for this rulemaking was published in the Federal
Register on August 5, 1997. Changes from the proposal are generally
addressed in the body of this preamble and specifically addressed in
the response to comments document included in the administrative record
for this rulemaking. EPA responded to all comments on the proposed
rule, including comments received after the September 26, 1997,
deadline. Although EPA is under no legal obligation to respond to late
comments, EPA made a policy decision to respond to all comments.
Since detailed information concerning many of the topics in this
preamble was published previously in the Federal Register in preambles
for this and other rulemakings, references are frequently made to those
preambles. Those rulemakings include: Water Quality Standards;
Establishment of Numeric Criteria for Priority Toxic Pollutants for the
State of California; Proposed Rule, 62 FR 42159, August 5, 1997
(referred to as the ``proposed CTR''); Water Quality Standards;
Establishment of Numeric Criteria for Priority Toxic Pollutants, 57 FR
60848, December 22, 1992 (referred to as the ``National Toxics Rule''
or ``NTR''); and the NTR as amended by Administrative Stay of Federal
Water Quality Criteria for Metals and Interim Final Rule, Water Quality
Standards; Establishment of Numeric Criteria for Priority Toxic
Pollutants; States' Compliance--Revision of Metals Criteria, 60 FR
22228, May 4, 1995 (referred to as the ``National Toxics Rule [NTR], as
amended''). The NTR, as amended, is codified at 40 CFR 131.36. A copy
of the proposed CTR and its preamble, and the NTR, as amended, and its
preambles are contained in the administrative record for this
rulemaking.
EPA is making this final rule effective upon publication. Under the
Administrative Procedure Act, 5 U.S.C. 553(d)(3), agencies must
generally publish a rule no more than 30 days prior to the effective
date of the rule except as otherwise provided for by the Agency for
good cause. The purpose of the 30-day waiting period is to give
affected parties a reasonable time to adjust their behavior before the
final rule takes effect. See Omnipoint Corp. v. F.C.C., 78 F.3d 620,
630-631 (D.C. Cir. 1996); Riverbend Farms, Inc. v. Madigan, 958 F.2d
1479, 1485 (9th Cir. 1992).
In this instance, EPA finds good cause to make the final rule
effective upon publication. In order to find good cause, an Agency
needs to find that the 30-day period would be: (1) Impracticable, (2)
unnecessary, or (3) contrary to the public interest. Here EPA is
relying on the second reason to support its finding of good cause. EPA
also notes that the State has requested EPA to make the rule
immediately effective.
EPA finds that in this instance, waiting 30 days to make the rule
effective is unnecessary. As explained in further detail elsewhere in
this preamble, this rule is not self implementing; rather it
establishes ambient conditions that the State of California will
implement in future permit proceedings. These permit proceedings will,
by regulation, take longer than 30 days to complete. This means that
although the rule is immediately effective, no discharger's conduct
would be altered under the rule in less than 30 days, and therefore the
30-day period is unnecessary.
2. Overview
This final rule establishes ambient water quality criteria for
priority toxic pollutants in the State of California. The criteria in
this final rule will supplement the water quality criteria promulgated
for California in the NTR, as amended. In 1991, EPA approved a number
of water quality criteria (discussed in section D), for the State of
California. Since EPA had approved these criteria, it was not necessary
to include them in the 1992 NTR for these criteria. However, the EPA-
approved criteria were subsequently invalidated in State litigation.
Thus, this final rule contains criteria to fill the gap created by the
State litigation.
This final rule does not change or supersede any criteria
previously promulgated for the State of California in the NTR, as
amended. Criteria which EPA promulgated for California in the NTR, as
amended, are footnoted in the final table at 131.38(b)(1), so that
readers may see the criteria promulgated in the NTR, as amended, for
California and the criteria promulgated through this rulemaking for
California in the same table. This final rule is not intended to apply
to waters within Indian Country. EPA recognizes that there are possibly
waters located wholly or partly in Indian Country that are included in
the State's basin plans. EPA will work with the State and Tribes to
identify any such waters and determine whether further action to
protect water quality in Indian Country is necessary.
This rule is important for several environmental, programmatic and
legal reasons. Control of toxic pollutants in surface waters is
necessary to achieve the CWA's goals and objectives. Many of
California's monitored river miles, lake acres, and estuarine waters
have elevated levels of toxic pollutants. Recent studies on California
water bodies indicate that elevated levels of toxic pollutants exist in
fish tissue which result in fishing advisories or bans. These toxic
pollutants can be attributed to, among other sources, industrial and
municipal discharges.
Water quality standards for toxic pollutants are important to State
and EPA efforts to address water quality problems. Clearly established
water quality goals enhance the effectiveness of many of the State's
and EPA's water programs including permitting, coastal water quality
improvement, fish tissue quality protection, nonpoint source controls,
drinking water quality protection, and ecological protection. Numeric
criteria for toxic pollutants allow the State and EPA to evaluate the
adequacy of existing and potential control measures to protect aquatic
ecosystems and human health. Numeric criteria also provide a more
precise basis for deriving water quality-based effluent limitations
(WQBELs) in
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National Pollutant Discharge Elimination System (NPDES) permits and
wasteload allocations for total maximum daily loads (TMDLs) to control
toxic pollutant discharges. Congress recognized these issues when it
enacted section 303(c)(2)(B) to the CWA.
While California recognizes the need for applicable water quality
standards for toxic pollutants, its adoption efforts have been stymied
by a variety of factors. The Administrator has decided to exercise her
CWA authorities to move forward the toxic control program, consistent
with the CWA and with the State of California's water quality standards
program.
Today's action will also help restore equity among the States. The
CWA is designed to ensure all waters are sufficiently clean to protect
public health and/or the environment. The CWA allows some flexibility
and differences among States in their adopted and approved water
quality standards, but it should be implemented in a manner that
ensures a level playing field among States. Although California has
made important progress toward satisfying CWA requirements, it has not
satisfied CWA section 303(c)(2)(B) by adopting numeric water quality
criteria for toxic pollutants. This section was added to the CWA by
Congress in 1987. Prior to today, the State of California had been the
only State in the Nation for which CWA section 303(c)(2)(B) had
remained substantially unimplemented after EPA's promulgation of the
NTR in December of 1992. Section 303(c)(4) of the CWA authorizes the
EPA Administrator to promulgate standards where necessary to meet the
requirements of the Act. The Administrator determined that this rule
was a necessary and important component for the implementation of CWA
section 303(c)(2)(B) in California.
EPA acknowledges that the State of California is working to satisfy
CWA section 303(c)(2)(B). When the State formally adopts, and EPA
approves, criteria consistent with statutory requirements, as
envisioned by Congress in the CWA, EPA intends to stay this rule. If
within the applicable time frame for judicial review, the States'
standards are challenged, EPA will withdraw this rule after such
judicial review is complete and the State standards are sustained.
C. Statutory and Regulatory Background
The preamble to the August 5, 1997, proposed rule provided a
general discussion of EPA's statutory and regulatory authority to
promulgate water quality criteria for the State of California. See 62
FR 42160-42163. EPA is including that discussion in the record for the
final rule. Commenters questioned EPA's authority to promulgate certain
aspects of the proposal. EPA is responding to those comments in the
appropriate sections of this preamble, and in the response to comments
document included in the administrative record for this rulemaking.
Where appropriate, EPA's responses expand upon the discussion of
statutory and regulatory authority found in the proposal.
D. California Water Quality Standards Actions
1. California Regional Water Quality Control Board Basin Plans, and the
Inland Surface Waters Plan (ISWP) and the Enclosed Bays and Estuaries
Plan (EBEP) of April 1991
The State of California regulates water quality through its State
Water Resources Control Board (SWRCB) and through nine Regional Water
Quality Control Boards (RWQCBs). Each of the nine RWQCBs represents a
different geographic area; area boundaries are generally along
watershed boundaries. Each RWQCB maintains a Basin Plan which contains
the designated uses of the water bodies within its respective
geographic area within California. These designated uses (or
``beneficial uses'' under State law) together with legally-adopted
criteria (or ``objectives'' under State law), comprise water quality
standards for the water bodies within each of the Basin areas. Each of
the nine RWQCBs undergoes a triennial basin planning review process, in
compliance with CWA section 303. The SWRCB provides assistance to the
RWQCBs.
Most of the Basin Plans contain conventional pollutant objectives
such as dissolved oxygen. None of the Basin Plans contains a
comprehensive list of priority toxic pollutant criteria to satisfy CWA
section 303(c)(2)(B). The nine RWQCBs and the SWRCB had intended that
the priority toxic pollutant criteria contained in the three SWRCB
statewide plans, the Inland Surface Waters Plan (ISWP), the Enclosed
Bays and Estuaries Plan (EBEP), and the Ocean Plan, apply to all basins
and satisfy CWA section 303(c)(2)(B).
On April 11, 1991, the SWRCB adopted two statewide water quality
control plans, the ISWP and the EBEP. These statewide plans contained
narrative and numeric water quality criteria for toxic pollutants, in
part to satisfy CWA section 303(c)(2)(B). The water quality criteria
contained in the SWRCB statewide plans, together with the designated
uses in each of the Basin Plans, created a set of water quality
standards for waters within the State of California.
Specifically, the two plans established water quality criteria or
objectives for all fresh waters, bays and estuaries in the State. The
plans contained water quality criteria for some priority toxic
pollutants, provisions relating to whole effluent toxicity,
implementation procedures for point and nonpoint sources, and
authorizing compliance schedule provisions. The plans also included
special provisions affecting waters dominated by reclaimed water
(labeled as Category (a) waters), and waters dominated by agricultural
drainage and constructed agricultural drains (labeled as Category (b)
and (c) waters, respectively).
2. EPA's Review of California Water Quality Standards for Priority
Toxic Pollutants in the ISWP and EBEP, and the National Toxics Rule
The EPA Administrator has delegated the responsibility and
authority for review and approval or disapproval of all new or revised
State water quality standards to the EPA Regional Administrators (see
40 CFR 131.21). Thus, State actions under CWA section 303(c)(2)(B) are
submitted to the appropriate EPA Regional Administrator for review and
approval.
In mid-April 1991, the SWRCB submitted to EPA for review and
approval the two statewide water quality control plans, the ISWP and
the EBEP. On November 6, 1991, EPA Region 9 formally concluded its
review of the SWRCB's plans. EPA approved the narrative water quality
criterion and the toxicity criterion in each of the plans. EPA also
approved the numeric water quality criteria contained in both plans,
finding them to be consistent with the requirements of section
303(c)(2)(B) of the CWA and with EPA's national criteria guidance
published pursuant to section 304(a) of the CWA.
EPA noted the lack of criteria for some pollutants, and found that,
because of the omissions, the plans did not fully satisfy CWA section
303(c)(2)(B). The plans did not contain criteria for all listed
pollutants for which EPA had published national criteria guidance. The
ISWP contained human health criteria for only 65 pollutants, and the
EBEP contained human health criteria for only 61 pollutants for which
EPA had issued section 304(a) guidance criteria. Both the ISWP and EBEP
contained aquatic life criteria for all pollutants except cyanide and
chromium III (freshwater only) for which EPA has CWA section
[[Page 31685]]
304(a) criteria guidance. The SWRCB's administrative record stated that
all priority pollutants with EPA criteria guidance were likely to be
present in California waters. However, the SWRCB's record contained
insufficient information to support a finding that the excluded
pollutants were not reasonably expected to interfere with designated
uses of the waters of the State.
Although EPA approved the statewide selenium objective in the ISWP
and EBEP, EPA disapproved the objective for the San Francisco Bay and
Delta, because there was clear evidence that the objective would not
protect the designated fish and wildlife uses (the California
Department of Health Services had issued waterfowl consumption
advisories due to selenium concentrations, and scientific studies had
documented selenium toxicity to fish and wildlife). EPA restated its
commitment to object to National Pollutant Discharge Elimination System
(NPDES) permits issued for San Francisco Bay that contained effluent
limits based on an objective greater than 5 parts per billion (ppb)
(four day average) and 20 ppb (1 hour average), the freshwater
criteria. EPA reaffirmed its disapproval of Californias' site-specific
selenium objective for portions of the San Joaquin River, Salt Slough,
and Mud Slough. EPA also disapproved of the categorical deferrals and
exemptions. These disapprovals included the disapproval of the State's
deferral of water quality objectives to effluent dominated streams
(Category a) and to streams dominated by agricultural drainage
(Category b), and the disapproval of the exemption of water quality
objectives to constructed agricultural drains (Category c). EPA found
the definitions of the categories imprecise and overly broad which
could have led to an incorrect interpretation.
Since EPA had disapproved portions of each of the California
statewide plans which were necessary to satisfy CWA section
303(c)(2)(B), certain disapproved aspects of California's water quality
standards were included in EPA's promulgation of the National Toxics
Rule (NTR) (40 CFR 131.36, 57 FR 60848). EPA promulgated specific
criteria for certain water bodies in California.
The NTR was amended, effective April 14, 1995, to stay certain
metals criteria which had been promulgated as total recoverable.
Effective April 15, 1995, EPA promulgated interim final metals criteria
as dissolved concentrations for those metals which had been stayed
(Administrative Stay of Federal Water Quality Criteria for Metals and
Interim Final Rule, Water Quality Standards; Establishment of Numeric
Criteria for Priority Toxic Pollutants; States' Compliance--Revision of
Metals Criteria; 60 FR 22228, 22229, May 4, 1995 [the NTR, as
amended]). The stay was in response to a lawsuit against EPA
challenging, among other issues, metals criteria expressed as total
recoverable concentrations. A partial Settlement Agreement required EPA
to stay specific metals criteria in the NTR. EPA then promulgated
certain metals criteria in the dissolved form through the use of
conversion factors. These factors are listed in the NTR, as amended. A
scientific discussion of these criteria is found in a subsequent
section of this preamble.
Since certain criteria have already been promulgated for specific
water bodies in the State of California in the NTR, as amended, they
are not within the scope of today's final rule. However, for clarity in
reading a comprehensive rule for the State of California, these
criteria are incorporated into 40 CFR 131.38(d)(2). Footnotes to the
Table in 40 CFR 131.38(b)(1) and 40 CFR 131.38(d)(3) clarify which
criteria (and for which specific water bodies) were promulgated by the
NTR, as amended, and are therefore excluded from this final rule. The
appropriate (freshwater or saltwater) aquatic life criteria which were
promulgated in the NTR, as amended, for all inland surface waters and
enclosed bays and estuaries include: chromium III and cyanide. The
appropriate (water and organism or organism only) human health criteria
which were promulgated in the NTR, as amended, for all inland surface
waters and enclosed bays and estuaries include:
antimony
thallium
asbestos
acrolein
acrylonitrile
carbon tetrachloride
chlorobenzene
1,2-dichloroethane
1,1-dichloroethylene
1,3-dichloropropylene
ethylbenzene
1,1,2,2-tetrachloroethane
tetrachloroethylene
1,1,2-trichloroethane
trichloroethylene
vinyl chloride
2,4-dichlorophenol
2-methyl-4,6-dinitrophenol
2,4-dinitrophenol
benzidine
bis(2-chloroethyl)ether
bis(2-ethylhexyl)phthalate
3,3-dichlorobenzidine
diethyl phthalate
dimethyl phthalate
di-n-butyl phthalate
2,4-dinitrotoluene
1,2-diphenylhydrazine
hexachlorobutadiene
hexachlorocyclopentadiene
hexachloroethane
isophorone
nitrobenzene
n-nitrosodimethylamine
n-nitrosodiphenylamine
Other pollutant criteria were promulgated in the NTR, as amended,
for specific water bodies, but not all inland surface waters and
enclosed bays and estuaries.
3. Status of Implementation of CWA Section 303(c)(2)(B)
Shortly after the SWRCB adopted the ISWP and EBEP, several
dischargers filed suit against the State alleging that it had not
adopted the two plans in compliance with State law. The plaintiffs in a
consolidated case included: the County of Sacramento, Sacramento County
Water Agency; Sacramento Regional County Sanitation District; the City
of Sacramento; the City of Sunnyvale; the City of San Jose; the City of
Stockton; and Simpson Paper Company.
The dischargers alleged that the State had not adopted the ISWP and
EBEP in compliance with the California Administrative Procedures Act
(Gov Code. Section 11340, et seq.), the California Environmental
Quality Act (Pub. Re Code, Section 21000, et seq.), and the Porter-
Cologne Act (Wat. Code, Section 13200, et seq.). The allegation that
the State did not sufficiently consider economics when adopting water
quality objectives, as allegedly required by Section 13241 of the
Porter Cologne Act, was an important issue in the litigation.
In October of 1993, the Superior Court of California, County of
Sacramento, issued a tentative decision in favor of the dischargers. In
March of 1994, the Court issued a substantively similar final decision
in favor of the dischargers. Final judgments from the Court in July of
1994 ordered the SWRCB to rescind the ISWP and EBEP. On September 22,
1994, the SWRCB formally rescinded the two statewide water quality
control plans. The State is currently in the process of readopting
water quality control plans for inland surface waters, enclosed bays
and estuaries.
CWA section 303(c)(2)(B) was fully implemented in the State of
California from December of 1992, when the NTR was promulgated, until
September of 1994, when the SWRCB was required to rescind the ISWP and
EBEP. The provisions for California in EPA's NTR together with the
approved portions of
[[Page 31686]]
California's ISWP and EBEP implemented the requirements of CWA section
303(c)(2)(B). However, since September of 1994, when the SWRCB
rescinded the ISWP and EBEP, the requirements of section 303(c)(2)(B)
have not been fully implemented in California.
The scope of today's rule is to re-establish criteria for the
remaining priority toxic pollutants to meet the requirements of section
303(c)(2)(B) of the CWA. Pursuant to section 303(c)(4), the
Administrator has determined that it is necessary to include in today's
action criteria for priority toxic pollutants, which are not covered by
the NTR, as amended, or by the State through EPA-approved site-specific
criteria, for waters of the United States in the State of California.
4. State-Adopted, Site-Specific Criteria for Priority Toxic Pollutants
The State has the discretion to develop site-specific criteria when
appropriate e.g., when statewide criteria appear over-or under-
protective of designated uses. Periodically, the State through its
RWQCBs will adopt site-specific criteria for priority toxic pollutants
within respective Basin Plans. These criteria are intended to be
effective throughout the Basin or throughout a designated water body.
Under California law, these criteria must be publicly reviewed and
approved by the RWQCB, the SWRCB, and the State's Office of
Administrative Law (OAL). Once this adoption process is complete, the
criteria become State law.
These criteria must be submitted to the EPA Regional Administrator
for review and approval under CWA section 303. These criteria are
usually submitted to EPA as part of a RWQCB Basin Plan Amendment, after
the Amendment has been adopted under the State's process and has become
State law.
a. State-Adopted Site-Specific Criteria Under EPA Review
The State of California has recently reviewed and updated all of
its RWQCB Basin Plans. All of the Basin Plans have completed the State
review and adoption process and have been submitted to EPA for review
and approval. Some of the Basin Plans contain site-specific criteria.
In these cases, the State-adopted site-specific criteria are used for
water quality programs.
EPA has not yet concluded consultation under the Endangered Species
Act with the U.S. Department of Interior, Fish and Wildlife Service,
and the U.S. Department of Commerce, National Marine Fisheries Service,
on EPA's tentative approval/disapproval actions on the RWQCB Basin
Plans. In this situation, the more stringent of the two criteria (the
State-adopted site-specific criteria in the RWQCB Basin Plans, or the
Federal criteria in this final rule), would be used for water quality
programs including the calculation of water quality-based effluent
criteria in National Pollutant Discharge Elimination System (NPDES)
permits.
b. State-Adopted Site-Specific Criteria With EPA Approval
In several cases, the EPA Regional Administrator has already
reviewed and approved State-adopted site-specific criteria within the
State of California. Several of these cases are discussed in this
section. All of the EPA approval letters referenced in today's preamble
are contained in the administrative record for today's rule.
Sacramento River: EPA has approved site-specific acute criteria for
copper, cadmium and zinc in the Sacramento River, upstream of Hamilton
City, in the Central Valley Region (RWQCB for the Central Valley
Region) of the State of California. EPA approved these site-specific
criteria by letter dated August 7, 1985. Specifically, EPA approved for
the Sacramento River (and tributaries) above Hamilton City, a copper
criterion of 5.6 <greek-m>g/l (maximum), a zinc criterion of 16
<greek-m>g/l (maximum) and a cadmium criterion of 0.22 <greek-m>g/l
(maximum), all in the dissolved form using a hardness of 40 mg/l as
CaCO3. (These criteria were actually adopted by the State and approved
by EPA as equations which vary with hardness.) These ``maximum''
criteria correspond to acute criteria in today's final rule. Therefore,
Federal acute criteria for copper, cadmium, and zinc for the Sacramento
River (and tributaries) above Hamilton City are not necessary to
protect the designated uses and are not included in the final rule.
However, the EPA Administrator is making a finding that it is necessary
to include chronic criteria for copper, cadmium and zinc for the
Sacramento River (and tributaries) above Hamilton City, as part of the
statewide criteria promulgated in today's final rule.
San Joaquin River: The selenium criteria in this rule are not
applicable to portions of the San Joaquin River, in the Central Valley
Region, because selenium criteria have been either previously approved
by EPA or previously promulgated by EPA as part of the NTR. EPA
approved and disapproved State-adopted site-specific selenium criteria
in portions of the San Joaquin River, in the Central Valley Region of
the State of California (RWQCB for the Central Valley Region). EPA's
determination on these site-specific criteria is contained in a letter
dated April 13, 1990.
Specifically, EPA approved for the San Joaquin River, mouth of
Merced River to Vernalis, an aquatic life selenium criterion of 12
<greek-m>g/l (maximum with the understanding that the instantaneous
maximum concentration may not exceed the objective more than once every
three years). Today's final rule does not affect this Federally-
approved, State-adopted site-specific acute criterion, and it remains
in effect for the San Joaquin River, mouth of Merced River to Vernalis.
Therefore, an acute criterion for selenium in the San Joaquin River,
mouth of Merced River to Vernalis is not necessary to protect the
designated use and thus is not included in this final rule.
By letter dated April 13, 1990, EPA also approved for the San
Joaquin River, mouth of Merced River to Vernalis, a State-adopted site-
specific aquatic life selenium criterion of 5 <greek-m>g/l (monthly
mean); however, EPA disapproved a State-adopted site-specific selenium
criterion of 8 <greek-m>g/l (monthly mean--critical year only) for
these waters. Subsequently, EPA promulgated a chronic selenium
criterion of 5 <greek-m>g/l (4 day average) for waters of the San
Joaquin River from the mouth of the Merced River to Vernalis in the
NTR. This chronic criterion applies to all water quality programs
concerning the San Joaquin River, mouth of Merced River to Vernalis.
Today's final rule does not affect the Federally-promulgated chronic
selenium criterion of 5 <greek-m>g/l (4 day average) set forth in the
NTR. This previously Federally-promulgated criterion remains in effect
for the San Joaquin River, mouth of Merced River to Vernalis.
Grassland Water District, San Luis National Wildlife Refuge, and
Los Banos State Wildlife Refuge: EPA approved for the Grassland Water
District, San Luis National Wildlife Refuge, and Los Banos State
Wildlife Refuge, a State-adopted site-specific aquatic life selenium
criterion of 2 <greek-m>g/l (monthly mean) by letter dated April 13,
1990. This Federally-approved, State-adopted site-specific chronic
criterion remains in effect for the Grassland Water District, San Luis
National Wildlife Refuge and Los Banos State Wildlife Refuge. Therefore
it is not necessary to include in today's final rule, a chronic
criterion for selenium for the Grassland Water District, San Luis
National Wildlife Refuge and Los Banos State Wildlife Refuge, and thus,
it is not included in this final rule.
[[Page 31687]]
San Francisco Regional Board Basin Plan of 1986: EPA approved
several priority toxic pollutant objectives (CWA criteria) that were
contained in the1986 San Francisco Regional Board Basin Plan, as
amended by SWRCB Resolution Numbers 87-49, 87-82 and 87-92, by letters
dated September 2, 1987 and December 24, 1987. This Basin Plan, the
SWRCB Resolutions, and the EPA approval letters are contained in the
administrative record for this rulemaking. It is not necessary to
include these criteria for priority toxic pollutants that are contained
in the San Francisco Regional Board's 1986 Basin Plan as amended, and
approved by EPA. Priority pollutants in this situation are footnoted in
the matrix at 131.38(b)(1) with footnote ``b.'' Where gaps exist in the
State adoption and EPA approval of priority toxic pollutant objectives,
the criteria in today's rule apply.
EPA is assigning ``human health, water and organism consumption''
criteria to waters with the States' municipal or ``MUN'' beneficial use
designation in the Basin Plan. Also, some pollutants regulated through
the Basin Plan have different averaging periods, e.g., one hour as
compared with the rule's ``short-term.'' However, where classes of
chemicals, such as polynuclear aromatic hydrocarbons, or PAHs, and
phenols, are regulated through the Basin Plan, but not specific
chemicals within the category, specific chemicals within the category
are regulated by today's rule.
E. Rationale and Approach for Developing the Final Rule
This section explains EPA's legal basis for today's final rule, and
discusses EPA's general approach for developing the specific
requirements for the State of California.
1. Legal Basis
CWA section 303(c) specifies that adoption of water quality
standards is primarily the responsibility of the States. However, CWA
section 303(c) also describes a role for the Federal government to
oversee State actions to ensure compliance with CWA requirements. If
EPA's review of the States' standards finds flaws or omissions, then
the CWA authorizes EPA to correct the deficiencies (see CWA section
303(c)(4)). This water quality standards promulgation authority has
been used by EPA to issue final rules on several separate occasions,
including the NTR, as amended, which promulgated criteria similar to
those included here for a number of States. These actions have
addressed both insufficiently protective State criteria and/or
designated uses and failure to adopt needed criteria. Thus, today's
action is not unique.
The CWA in section 303(c)(4) provides two bases for promulgation of
Federal water quality standards. The first basis, in paragraph (A),
applies when a State submits new or revised standards that EPA
determines are not consistent with the applicable requirements of the
CWA. If, after EPA's disapproval, the State does not amend its rules so
as to be consistent with the CWA, EPA is to promptly propose
appropriate Federal water quality standards for that State. The second
basis for an EPA action is in paragraph (B), which provides that EPA
shall promptly initiate promulgation ``* * * in any case where the
Administrator determines that a revised or new standard is necessary to
meet the requirements of this Act.'' EPA is using section 303(c)(4)(B)
as the legal basis for today's final rule.
As discussed in the preamble to the NTR, the Administrator's
determination under CWA section 303(c)(4) that criteria are necessary
to meet the requirements of the Act could be supported in several ways.
Consistent with EPA's approach in the NTR, EPA interprets section
303(c)(2)(B) of the CWA to allow EPA to act where the State has not
succeeded in establishing numeric water quality standards for toxic
pollutants. This inaction can be the basis for the Administrator's
determination under section 303(c)(4) that new or revised criteria are
necessary to ensure designated uses are protected.
EPA does not believe that it is necessary to support the criteria
in today's rule on a pollutant-specific, water body-by-water-body
basis. For EPA to undertake an effort to conduct research and studies
of each stream segment or water body across the State of California to
demonstrate that for each toxic pollutant for which EPA has issued CWA
section 304(a) criteria guidance there is a ``discharge or presence''
of that pollutant which could reasonably ``be expected to interfere
with'' the designated use would impose an enormous administrative
burden and would be contrary to the statutory directive for swift
action manifested by the 1987 addition of section 303(c)(2)(B) to the
CWA. Moreover, because these criteria are ambient criteria that define
attainment of the designated uses, their application to all water
bodies will result in additional controls on dischargers only where
necessary to protect the designated uses.
EPA's interpretation of section 303(c)(2)(B) is supported by the
language of the provision, the statutory framework and purpose of
section 303, and the legislative history. In adding section
303(c)(2)(B) to the CWA, Congress understood the existing requirements
in section 303(c)(1) for States to conduct triennial reviews of their
water quality standards and submit the results of those reviews to EPA
and in section 303(c)(4)(B) for promulgation. CWA section 303(c)
includes numerous deadlines and section 303(c)(4) directs the
Administrator to act ``promptly'' where the Administrator determines
that a revised or new standard is necessary to meet the requirements of
the Act. Congress, by linking section 303(c)(2)(B) to the section
303(c)(1) three-year review period, gave States a last chance to
correct this deficiency on their own. The legislative history of the
provision demonstrates that chief Senate sponsors, including Senators
Stafford, Chaffee and others wanted the provision to eliminate State
and EPA delays and force quick action. Thus, to interpret CWA section
303(c)(2)(B) and (c)(4) to require such a cumbersome pollutant specific
effort on each stream segment would essentially render section
303(c)(2)(B) meaningless. The provision and its legislative background
indicate that the Administrator's determination to invoke section
303(c)(4)(B) authority can be met by the Administrator making a generic
finding of inaction by the State without the need to develop pollutant
specific data for individual stream segments. Finally, the reference in
section 303(c)(2)(B) to section 304(a) criteria suggests that section
304(a) criteria serve as default criteria; that once EPA has issued
them, States were to adopt numeric criteria for those pollutants based
on the 304(a) criteria, unless they had other scientifically defensible
criteria. EPA also notes that this rule follows the approach EPA took
nationally in promulgating the NTR for States that failed to comply
with CWA section 303(c)(2)(B). 57 FR 60848, December 22, 1992. EPA
incorporates the discussion in the NTR preamble as part of this
rulemaking record.
This determination is supported by information in the rulemaking
record showing the discharge or presence of priority toxic pollutants
throughout the State. While this data is not necessarily complete, it
constitutes a strong record supporting the need for numeric criteria
for priority toxic pollutants with section 304(a) criteria guidance
where the State does not have numeric criteria.
Today's final rule would not impose any undue or inappropriate
burden on the State of California or its dischargers. It merely puts in
place numeric criteria
[[Page 31688]]
for toxic pollutants that are already used in other States in
implementing CWA programs. Under this rulemaking, the State of
California retains the ability to adopt alternative water quality
criteria simply by completing its criteria adoption process. Upon EPA
approval of those criteria, EPA will initiate action to stay the
Federally-promulgated criteria and subsequently withdraw them.
2. Approach for Developing This Rule
In summary, EPA developed the criteria promulgated in today's final
rule as follows. Where EPA promulgated criteria for California in the
NTR, EPA has not acted to amend the criteria in the NTR. Where criteria
for California were not included in the NTR, EPA used section 304(a)
National criteria guidance documents as a starting point for the
criteria promulgated in this rule. EPA then determined whether new
information since the development of the national criteria guidance
documents warranted any changes. New information came primarily from
two sources. For human health criteria, new or revised risk reference
doses and cancer potency factors on EPA's Integrated Risk Information
System (IRIS) as of October 1996 form the basis for criteria values
(see also 63 FR 68354). For aquatic life criteria, updated data sets
resulting in revised criteria maximum concentrations (CMCs) and
criteria continuous concentrations (CCCs) formed the basis for
differences from the national criteria guidance documents. Both of
these types of changes are discussed in more detail in the following
sections. This revised information was used to develop the water
quality criteria promulgated here for the State of California.
F. Derivation of Criteria
1. Section 304(a) Criteria Guidance Process
Under CWA section 304(a), EPA has developed methodologies and
specific criteria guidance to protect aquatic life and human health.
These methodologies are intended to provide protection for all surface
waters on a national basis. The methodologies have been subject to
public review, as have the individual criteria guidance documents.
Additionally, the methodologies have been reviewed by EPA's Science
Advisory Board (SAB) of external experts.
EPA has included in the record of this rule the aquatic life
methodology as described in ``Appendix B--Guidelines for Deriving Water
Quality Criteria for the Protection of Aquatic Life and Its Uses'' to
the ``Water Quality Criteria Documents; Availability'' (45 FR 79341,
November 28, 1980) as amended by the ``Summary of Revisions to
Guidelines for Deriving Numerical National Water Quality Criteria for
the Protection of Aquatic Organisms and Their Uses'' (50 FR 30792, July
29, 1985). (Note: Throughout the remainder of this preamble, this
reference is described as the 1985 Guidelines. Any page number
references are to the actual guidance document, not the notice of
availability in the Federal Register. A copy of the 1985 Guidelines is
available through the National Technical Information Service (PB85-
227049), is in the administrative record for this rule, and is
abstracted in Appendix A of Quality Criteria for Water, 1986.) EPA has
also included in the administrative record of this rule the human
health methodology as described in ``Appendix C--Guidelines and
Methodology Used in the Preparation of Health Effects Assessment
Chapters of the Consent Decree Water Criteria Documents'' (45 FR 79347,
November 28, 1980). (Note: Throughout the remainder of this preamble,
this reference is described as the Human Health Guidelines or the 1980
Guidelines.) EPA also recommends that the following be reviewed:
``Appendix D--Response to Comments on Guidelines for Deriving Water
Quality Criteria for the Protection of Aquatic Life and Its Uses,'' (45
FR 79357, November 28, 1980); ``Appendix E--Responses to Public
Comments on the Human Health Effects Methodology for Deriving Ambient
Water Quality Criteria'' (45 FR 79368, November 28, 1980); and
``Appendix B--Response to Comments on Guidelines for Deriving Numerical
National Water Quality Criteria for the Protection of Aquatic Organisms
and Their Uses'' (50 FR 30793, July 29, 1985). EPA placed into the
administrative record for this rulemaking the most current individual
criteria guidance for the priority toxic pollutants included in today's
rule. (Note: All references to appendices are to the associated Federal
Register publication.)
EPA received many comments related to the issue of what criteria
should apply in the CTR if the CWA section 304(a) criteria guidance is
undergoing re-evaluation, or if new data are developed that may affect
a recommended criterion. As science is always evolving, EPA is faced
with the challenge of promulgating criteria that reflect the best
science and sound science. EPA addressed this challenge in some detail
in its Federal Register notice that contained the Agency's current
section 304(a) criteria guidance (63 FR 68335, December 10, 1998).
There, EPA articulated its policy, reiterated here, that the existing
criteria guidance represent the Agency's best assessment until such
time as EPA's re-evaluation of a criteria guidance value for a
particular chemical is complete. The reason for this is that both EPA's
human health criteria guidance and aquatic life criteria guidance are
developed taking into account numerous variables. For example, for
human health criteria guidance, EPA evaluates many diverse toxicity
studies, whose results feed into a reference dose or cancer potency
estimate that, along with a number of exposure factors and
determination of risk level, results in a guidance criterion. For
aquatic life, EPA evaluates many diverse aquatic toxicity studies to
determine chronic and acute toxicity taking into account how other
factors (such as pH, temperature or hardness) affect toxicity. EPA
also, to the extent possible, addresses bioaccumulation or
bioconcentration. EPA then uses this toxicity information along with
exposure information to determine the guidance criterion. Importantly,
EPA subjects such evaluation to peer review and/or public comment.
For these reasons, EPA generally does not make a change to the
304(a) criteria guidance based on a partial picture of the evolving
science. This makes sense, because to address one piece of new data
without looking at all relevant data is less efficient and results in
regulatory impacts that may go back and forth, when in the end, the
criteria guidance value does not change that much. Certain new changes,
however, do warrant change in criteria guidance, such as a change in a
value in EPA's Integrated Risk Information System (IRIS) because it
represents the Agency consensus about human health impacts. These
changes are sufficiently examined across the Agency such that EPA
believes they can be incorporated into EPA's water quality criteria
guidance. EPA has followed this approach in the CTR. Included in the
administrative record for today's rule is a document entitled ``Status
of Clean Water Act Section 304(a) Criteria'' which further explains
EPA's policy on managing change to criteria guidance.
2. Aquatic Life Criteria
Aquatic life criteria may be expressed in numeric or narrative
form. EPA's 1985 Guidelines describe an objective, internally
consistent and appropriate way of deriving chemical-specific, numeric
water quality criteria for the protection of the presence of, as well
as
[[Page 31689]]
the uses of, both fresh and salt water aquatic organisms.
An aquatic life criterion derived using EPA's CWA section 304(a)
method ``might be thought of as an estimate of the highest
concentration of a substance in water which does not present a
significant risk to the aquatic organisms in the water and their
uses.'' (45 FR 79341.) EPA's guidelines are designed to derive criteria
that protect aquatic communities. EPA's 1985 Guidelines attempt to
provide a reasonable and adequate amount of protection with only a
small possibility of substantial overprotection or underprotection. As
discussed in detail below, there are several individual factors which
may make the criteria somewhat overprotective or underprotective. The
approach EPA is using is believed to be as well balanced as possible,
given the state of the science.
Numerical aquatic life criteria derived using EPA's 1985 Guidelines
are expressed as short-term and long-term averages, rather than one
number, in order that the criterion more accurately reflect
toxicological and practical realities. The combination of a criterion
maximum concentration (CMC), a short-term concentration limit, and a
criterion continuous concentration (CCC), a four-day average
concentration limit, are designed to provide protection of aquatic life
and its uses from acute and chronic toxicity to animals and plants,
without being as restrictive as a one-number criterion would have to be
(1985 Guidelines, pages 4 & 5). The terms CMC and CCC are the formal
names for the two (acute and chronic) values of a criterion for a
pollutant; however, this document will also use the informal synonyms
acute criterion and chronic criterion.
The two-number criteria are intended to identify average pollutant
concentrations which will produce water quality generally suited to
maintenance of aquatic life and designated uses while restricting the
duration of excursions over the average so that total exposures will
not cause unacceptable adverse effects. Merely specifying an average
value over a time period may be insufficient unless the time period is
short, because excursions higher than the average may kill or cause
substantial damage in short periods.
A minimum data set of eight specified families is recommended for
criteria development (details are given in the 1985 Guidelines, page
22). The eight specific families are intended to be representative of a
wide spectrum of aquatic life. For this reason it is not necessary that
the specific organisms tested be actually present in the water body.
EPA's application of its guidelines to develop the criteria matrix in
this rule is judged by the Agency to be appropriate for all waters of
the United States (U.S.), and to all ecosystems (1985 Guidelines, page
4) including those waters of the U.S. and ecosystems in the State of
California.
Fresh water and salt water (including both estuarine and marine
waters) have different chemical compositions, and freshwater and
saltwater species often do not inhabit the same water. To provide
additional accuracy, criteria are developed for fresh water and for
salt water.
For this rule, EPA updated freshwater aquatic life criteria
contained in CWA section 304(a) criteria guidance first published in
the early 1980's and later modified in the NTR, as amended, for the
following ten pollutants: arsenic, cadmium, chromium (VI), copper,
dieldrin, endrin, lindane (gamma BHC), nickel, pentachlorophenol, and
zinc. The updates used as the basis for this rule are explained in a
technical support document entitled, 1995 Updates: Water Quality
Criteria Documents for the Protection of Aquatic Life in Ambient Water
(U.S. EPA-820-B-96-001, September 1996), available in the
administrative record to this rulemaking; this document presents the
derivation of each of the final CMCs and CCCs and the toxicity studies
from which the updated freshwater criteria for the ten pollutants were
derived.
The polychlorinated biphenyls (PCB) criteria in the criteria matrix
for this rule differs from that in the NTR, as amended; for this rule,
the criteria are expressed as the sum of seven aroclors, while for the
NTR, as amended, the criteria are expressed for each of seven aroclors.
The aquatic life criteria for PCBs in the CTR are based on the criteria
contained in the 1980 criteria guidance document for PCBs which is
included in the administrative record for this rule. This criteria
document explains the derivation of aquatic life criteria based on
total PCBs. For more information see the Response to Comments document
for this rule. Today's chronic aquatic life criteria for PCBs are based
on a final residue value (FRV). In EPA's guidelines for deriving
aquatic life criteria, an FRV-based criterion is intended to prevent
concentrations of pollutants in commercially or recreationally
important aquatic species from affecting the marketability of those
species or affecting the wildlife that consume aquatic life.
The proposed CTR included an updated freshwater and saltwater
aquatic life criteria for mercury. In today's final rule, EPA has
reserved the mercury criteria for freshwater and saltwater aquatic
life, but is promulgating human health criteria for mercury for all
surface waters in California. In some instances, the human health
mercury criteria included in today's final rule may not protect some
aquatic species or threatened or endangered species. In such instances,
more stringent mercury limits may be determined and implemented through
use of the State's narrative criterion. The reasons for reserving the
mercury aquatic life numbers are explained in further detail in Section
L, Endangered Species Act.
a. Freshwater Acute Selenium Criterion
EPA proposed a different freshwater acute aquatic life criterion
for selenium for this rule than was promulgated in the NTR, as amended.
EPA's proposed action was consistent with EPA's proposed selenium
criterion maximum concentration for the Water Quality Guidance for the
Great Lakes System (61 FR 58444, November 14, 1996). This proposal took
into account data showing that selenium's two most prevalent oxidation
states, selenite and selenate, present differing potentials for aquatic
toxicity, as well as new data which indicated that various forms of
selenium are additive. Additivity increases the toxicity of mixtures of
different forms of the pollutant. The proposed approach produces a
different selenium acute criterion concentration, or CMC, depending
upon the relative proportions of selenite, selenate, and other forms of
selenium that are present.
The preamble to the August 5, 1997, proposed rule provided a
lengthy discussion of this proposed criterion for the State of
California. See 62 FR 42160-42208. EPA incorporates that discussion
here as part of this rulemaking record. In 1996, a similar discussion
was included in the proposed rule for the Great Lakes System.
Commenters questioned several aspects of the Great Lakes proposal. EPA
is continuing to respond to those comments, and to follow up with
additional literature review and toxicity testing. In addition, the
U.S. FWS and U.S. NMFS (collectively, the Services) are concerned that
EPA's proposed criterion may not be sufficiently protective of certain
threatened and endangered species in California. Because the Services
believe there is a lack of data to show for certain that the proposed
criterion would not affect threatened and endangered species, the
Services prefer that EPA further investigate the protectiveness of the
robop...@us.govnews.org
Posting-number: Volume 65, Issue 97, Page 31681, Part 1
[[Page 31707]]
among 128 major POTWs in the State, the average cost per plant would be
$61,000 per year. Chemical and petroleum industries would incur the
highest cost of the industrial categories (5.6 percent of the annual
costs, with an annual average of $25,200 per plant). About 57 percent
of the low-end costs would be associated with pollution prevention
activities, while nearly 38 percent would be associated with pursuing
alternative methods of compliance under the regulations.
Under the high-end cost scenario, major industrial facilities and
POTWs would incur about 94 percent of the potential costs, indirect
dischargers would incur about 17 percent of the potential costs, while
minor dischargers would incur about 5 percent. Among the major, direct
dischargers, two categories would incur the majority of potential
costs--major POTWs (82 percent), Chemical/Petroleum Products (9
percent). The average annual per plant cost for different industry
categories would ranges from zero to $324,000. The two highest average
cost categories would be major POTWs ($324,000 per year) and Chemical/
Petroleum Products ($221,264 per year). The shift in proportion of
potential costs between direct and indirect dischargers is due to the
assumption that more direct dischargers would use end-of-pipe treatment
under the high-end scenario. Thus, a smaller proportion of indirect
dischargers would be impacted under the high-end scenario, since some
municipalities are projected to add end-of-pipe treatment which would
reduce the need for controls from indirect discharges. Over 91 percent
of the annual costs are for waste minimization and treatment
optimization costs. Waste minimization would represent nearly 84% of
the total annual costs. Capital and operation and maintenance costs
would make up less than 9 percent of annual costs.
Cost-Effectiveness: Cost-effectiveness is estimated in terms of the
cost of reducing the loadings of toxic pollutants from point sources.
The cost-effectiveness is derived by dividing the projected annual
costs of implementing permit limits based on water quality standards
using today's criteria by the toxicity-weighted pounds (pound-
equivalents) of pollutants removed. Pound-equivalents are calculated by
multiplying pounds of each pollutant removed by the toxic weight (based
on the toxicity of copper) for that pollutant.
Based on this analysis, State implementation of permit limits based
on today's criteria would be responsible for the reduction of about 1.1
million to 2.7 million toxic pound-equivalents per year, or 15 to 50
percent of the toxic-weighted baseline loadings for the high-and low-
end scenarios, respectively. The cost-effectiveness of the scenarios
would range from $22 (high-end scenario) to $31 (low-end scenario) per
pound-equivalent.
2. Benefits
The benefits analysis is intended to provide insight into both the
types and potential magnitude of the economic benefits expected as a
result of implementation of water quality standards based on today's
criteria. To the extent feasible, empirical estimates of the potential
magnitude of the benefits were developed and then compared to the
estimated costs of implementing water quality standards based on
today's criteria.
To perform a benefits analysis, the types or categories of benefits
that apply need to be defined. EPA relied on a set of benefits
categories that typically apply to changes in the water resource
environment. Benefits were categorized as either use benefits or
passive (nonuse) benefits depending on whether or not they involve
direct use of, or contact with, the resource. The most prominent use
benefit categories are those related to recreational fishing, boating,
and swimming. Another use benefit category of significance is human
health risk reduction. Human health risk reductions can be realized
through actions that reduce human exposure to contaminants such as
exposure through the consumption of fish containing elevated levels of
pollutants. Passive use benefits are those improvements in
environmental quality that are valued by individuals apart from any use
of the resource in question.
Benefits estimates were derived in this study using an approach in
which benefits of discrete large-scale changes in water quality beyond
present day conditions were estimated wherever feasible. A share of
those benefits was then apportioned to implementation of water quality
standards based on today's criteria. The apportionment estimate was
based on a three-stage process:
First, EPA assessed current total loadings from all sources that
are contributing to the toxics-related water quality problems observed
in the State. This defines the overall magnitude of loadings. Second,
the share of total loadings that are attributable to sources that would
be controlled through implementation of water quality standards based
on today's criteria was estimated. Since this analysis was designed to
focus only on those controls imposed on point sources, this stage of
the process entailed estimating the portion of total loadings
originating from point sources. Third, the percentage reduction in
loadings expected due to implementation of today's criteria was
estimated and then multiplied by the share of point source loadings to
calculate the portion of benefits that could be attributed to
implementation of water quality standards based on today's criteria.
Total monetized annual benefits were estimated in the range of $6.9
to $74.7 million. By category, annual benefits would be $1.3 to $4.6
million for avoided cancer risk, $2.2 to $15.2 million for recreational
angling, and $3.4 to $54.9 million for passive use benefits.
There are numerous categories of potential or likely benefits that
have been omitted from the quantified and monetized benefit estimates.
In terms of potential magnitudes of benefit, the following are likely
to be significant contributors to the underestimation of the monetized
values presented above:
<bullet> Improvements in water-related (in-stream and near stream)
recreation apart from fishing. The omission of potential motorized and
nonmotorized boating, swimming, picnicking, and related in-stream and
stream-side recreational activities from the benefits estimates could
contribute to an appreciable underestimation of total benefits. Such
recreational activities have been shown in empirical research to be
highly valued, and even modest changes in participation and or user
values could lead to sizable benefits statewide. Some of these
activities can be closely associated with water quality attributes
(notably, swimming). Other recreational activities may be less directly
related to the water quality improvements, but might nonetheless
increase due to their association with fishing, swimming, or other
activities in which the participants might engage.
<bullet> Improvements in consumptive and nonconsumptive land-based
recreation, such as hunting and wildlife observation. Improvements in
aquatic habitats may lead (via food chain and related ecologic benefit
mechanisms) to healthier, larger, and more diverse populations of avian
and terrestrial species, such as waterfowl, eagles, and otters.
Improvements in the populations for these species could manifest as
improved hunting and wildlife viewing opportunities, which might in
turn increase participation and user day values for such activities.
Although the scope of the benefits analysis has not allowed a
quantitative assessment of these values at either pre- or post-rule
[[Page 31708]]
conditions, it is conceivable that these benefits could be appreciable.
<bullet> Improvements in human health resulting from reduction of
non-cancer risk. EPA estimated that implementation of water quality
standards based on the criteria would result in a reduction of mercury
concentrations in fish tissue and, thus, a reduction in the hazard from
consumption of mercury contaminated fish. However, EPA was unable to
monetize benefits due to reduced non-cancer health effects.
<bullet> Human health benefits for saltwater anglers outside of San
Francisco Bay were not estimated. The number of saltwater anglers
outside of San Francisco Bay is estimated to be 673,000 (based on
Huppert, 1989, and U.S. FWS, 1993). The omission of other saltwater
anglers may cause human health benefits to be underestimated. In
addition, benefit estimates in the EA may be slightly overstated since
potential benefits from reductions in chloroform discharges were
included in these estimates. EPA made a decision to reserve the
chloroform human health criteria after the EA was completed.
EPA received a number of comments which requested the Agency use
the cost-benefit analysis in the EA as a factor in setting water
quality criteria. EPA does not use the EA as a basis in determining
protective water quality criteria. EPA's current regulations at 40 CFR
131.11 state that the criteria must be based on sound scientific
rationale and must protect the designated use. From the outset of the
water quality standards program, EPA has explained that while economic
factors may be considered in designating uses, they may not be used to
justify criteria that are not protective of those uses. 44 FR 25223-
226, April 30, 1979. See e.g. Mississippi Commission on Natural
Resources v. Costle, 625 F. 2d 1269, 1277 (5th Cir. 1980). EPA
reiterated this interpretation of the CWA and its implementing
regulations in discussing section 304(a) recommended criteria guidance
stating that ``they are based solely on data and scientific judgments
on the relationship between pollutant concentrations and environmental
and human health effects and do not reflect consideration of economic
impacts or the technological feasibility of meeting the chemical
concentrations in ambient water.'' 63 FR 36742 and 36762, July 7, 1998.
I. Executive Order 12866, Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the 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
``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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
J. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating any regulation for which a written
statement is needed, section 205 of the UMRA generally requires EPA to
identify and consider a reasonable number of regulatory alternatives
and adopt the least costly, most cost-effective or least burdensome
alternative that achieves the objectives of the rule. The provisions of
section 205 do not apply when they are inconsistent with applicable
law. Moreover, section 205 allows an Agency to adopt an alternative
other than the least costly, most cost-effective or least burdensome
alternative if the Administrator publishes with the final rule an
explanation why that alternative was not adopted. Before EPA
establishes any regulatory requirements that may significantly or
uniquely affect small governments, including tribal governments, it
must have developed under section 203 of the UMRA a small government
Agency plan. The plan must provide for notifying potentially affected
small governments, enabling officials of the affected small governments
to have meaningful and timely input in the development of regulatory
proposals with significant Federal intergovernmental mandates, and EPA
informing, educating, and advising small governments on compliance with
the regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the Unfunded Mandates Reform Act (UMRA)) for
State, local, or tribal governments or the private sector. Today's rule
imposes no enforceable duty on any State, local or Tribal governments
or the private sector; rather, the CTR promulgates ambient water
quality criteria which, when combined with State-adopted uses, will
create water quality standards for those water bodies with adopted
uses. The State will then use these resulting water quality standards
in implementing its existing water quality control programs. Thus,
today's rule is not subject to the requirements of sections 202 and 205
of the UMRA.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. This rule establishes ambient water quality criteria
which, by themselves do not directly impact any entity. The State will
implement these criteria by ensuring that NPDES permits result in
discharges that will meet these criteria. In so doing, the State will
have considerable discretion. Until the State implements these water
quality standards, there will be no effect of this rule on any entity.
Thus, today's rule is not subject to the requirements of section 203 of
UMRA.
K. Regulatory Flexibility Act
The Regulatory Flexibility Act generally requires Federal agencies
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the Agency certifies that the
rule will not have a significant economic impact of a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions. For purposes
of assessing the impacts of today's rule on small entities, small
entity is defined as: (1) A small business according to RFA default
definitions for small businesses (based on SBA size
[[Page 31709]]
standards); (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This final
rule will not impose any requirements on small entities.
Under the CWA water quality standards program, States must adopt
water quality standards for their waters that must be submitted to EPA
for approval. If the Agency disapproves a State standard and the State
does not adopt appropriate revisions to address EPA's disapproval, EPA
must promulgate standards consistent with the statutory requirements.
EPA has authority to promulgate criteria or standards in any case where
the Administrator determines that a revised or new standard is
necessary to meet the requirements of the Act. These State standards
(or EPA-promulgated standards) are implemented through various water
quality control programs including the National Pollutant Discharge
Elimination System (NPDES) program that limits discharges to navigable
waters except in compliance with an EPA permit or permit issued under
an approved State NPDES program. The CWA requires that all NPDES
permits must include any limits on discharges that are necessary to
meet State water quality standards.
Thus, under the CWA, EPA's promulgation of water quality criteria
or standards establishes standards that the State, in turn, implements
through the NPDES permit process. The State has considerable discretion
in deciding how to meet the water quality standards and in developing
discharge limits as needed to meet the standards. In circumstances
where there is more than one discharger to a water body that is subject
to water quality standards or criteria, a State also has discretion in
deciding on the appropriate limits for the different dischargers. While
the State's implementation of federally-promulgated water quality
criteria or standards may result indirectly in new or revised discharge
limits for small entities, the criteria or standards themselves do not
apply to any discharger, including small entities.
Today's rule, as explained above, does not itself establish any
requirements that are applicable to small entities. As a result of
EPA's action here, the State of California will need to ensure that
permits it issues include limits as necessary to meet the water quality
standards established by the criteria in today's rule. In so doing, the
State will have a number of discretionary choices associated with
permit writing. While California's implementation of today's rule may
ultimately result in some new or revised permit conditions for some
dischargers, including small entities, EPA's action today does not
impose any of these as yet unknown requirements on small entities.
The RFA requires analysis of the economic impact of a rule only on
the small entities subject to the rule's requirements. Courts have
consistently held that the RFA imposes no obligation on an Agency to
prepare a small entity analysis of the effect of a rule on entities not
regulated by the rule. Motor & Equip. Mrfrs. Ass'n v. Nichols, 142 F.3d
449, 467 & n.18 (D.C. Cir. 1998)(quoting United States Distribution
Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996); see also
American Trucking Association, Inc. v. EPA, 175 F.3d 1027 (D.C. Cir.
1999). This final rule will have a direct effect only on the State of
California which is not a small entity under the RFA. Thus, individual
dischargers, including small entities, are not directly subject to the
requirements of the rule. Moreover, because of California's discretion
in implementing these standards, EPA cannot assess the extent to which
the promulgation of this rule may subsequently affect any dischargers,
including small entities. Consequently, certification under section
605(b) is appropriate. State of Michigan, et al. v. U.S. Environmental
Protection Agency, No. 98-1497 (D.C. Cir. Mar. 3, 2000), slip op. at
41-42.
L. Paperwork Reduction Act
This action requires no new or additional information collection,
reporting, or record keeping subject to the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
M. Endangered Species Act
Pursuant to section 7(a) of the Endangered Species Act (ESA), EPA
has consulted with the U.S. Fish and Wildlife Service and the U.S.
National Marine Fisheries Service (collectively, the Services)
concerning EPA's rulemaking action for the State of California. EPA
initiated informal consultation in early 1994, and completed formal
consultation in April 2000. As a result of the consultation, EPA
modified some of the provisions in the final rule.
As part of the consultation process, EPA submitted to the Services
a Biological Evaluation for their review in October of 1997. This
evaluation found that the proposed CTR was not likely to jeopardize the
continued existence of any Federally listed species or result in the
destruction or adverse modification of designated critical habitat. In
April of 1998, the Services sent EPA a draft Biological Opinion which
tentatively found that EPA's proposed rule would jeopardize the
continued existence of several Federally listed species and result in
the destruction or have adverse effect on designated critical habitat.
After lengthy discussions with the Services, EPA agreed to several
changes in the final rule and the Services in turn issued a final
Biological Opinion finding that EPA's action would not likely
jeopardize the continued existence of any Federally listed species or
result in the destruction or adverse modification of designated
critical habitat. EPA's Biological Evaluation and the Services' final
Biological Opinion are contained in the administrative record for
today's rule.
In order to ensure the continued protection of Federally listed
threatened and endangered species and to protect their critical
habitat, EPA agreed to reserve the aquatic life criteria for mercury
and the acute freshwater aquatic life criterion for selenium. The
Services believe that EPA's proposed criteria are not sufficiently
protective of Federally listed species and should not be promulgated.
EPA agreed that it would reevaluate these criteria in light of the
Services concerns before promulgating them for the State of California.
Other commitments made by EPA are described in a letter to the Services
dated December 16, 1999; this letter is contained in the administrative
record for today's rule.
N. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit 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 United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This rule is not a major rule as defined
[[Page 31710]]
by 5 U.S.C. 804(2). This rule will be effective May 18, 2000.
O. Executive Order 13084, Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies by consulting, Executive Order 13084
requires EPA to provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
Today's rule does not significantly or uniquely affect the
communities of Indian tribal governments nor does it impose substantial
direct compliance cots on them. Today's rule will only address priority
toxic pollutant water quality criteria for the State of California and
does not apply to waters in Indian country. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
P. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This final rule does not involve technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
Q. Executive Order 13132 on Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law, unless
the Agency consults with State and local officials early in the process
of developing the proposed regulation.
This final rule does not have federalism implications. It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government,
as specified in Executive Order 13132. The rule does not affect the
nature of the relationship between EPA and States generally, for the
rule only applies to water bodies in California. Further, the rule will
not substantially affect the relationship of EPA and the State of
California, or the distribution of power or responsibilities between
EPA and the State. The rule does not alter the State's authority to
issue NPDES permits or the State's considerable discretion in
implementing these criteria. The rule simply implements Clean Water Act
section 303(c)(2)(B) requiring numeric ambient water quality criteria
for which EPA has issued section 304(a) recommended criteria in a
manner that is consistent with previous regulatory guidance that the
Agency has issued to implement CWA section 303(c)(2)(B). Further, this
rule does not preclude the State from adopting water quality standards
that meet the requirements of the CWA. Thus, the requirements of
section 6 of the Executive Order do not apply to this rule.
Although section 6 of Executive Order 13132 does not apply to this
rule, EPA did consult with State and local government representatives
in developing this rule. EPA and the State reached an agreement that to
best utilize its respective resources, EPA would promulgate water
quality criteria and the State would concurrently work on a plan to
implement the criteria. Since the proposal of this rule, EPA has kept
State officials fully informed of changes to the proposal. EPA has
continued to invite comment from the State on these changes. EPA
believes that the final CTR incorporates comments from State officials
and staff.
R. Executive Order 13045 on Protection of Children From
Environmental Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
While this final rule is not subject to the Executive Order because
it is not economically significant as defined in Executive Order 12866,
we nonetheless have reason to believe that the environmental health or
safety risk addressed by this action may have a disproportionate effect
on children. As a matter of EPA policy, we therefore have assessed the
environmental health or safety effects of ambient water quality
criteria on children. The results of this assessment are contained in
section F.3., Human Health Criteria.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
[[Page 31711]]
Dated: April 27, 2000.
Carol Browner,
Administrator.
For the reasons set out in the preamble, part 131 of chapter I of
title 40 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.
Subpart D--[Amended]
2. Section 131.38 is added to subpart D to read as follows:
Sec. 131.38 Establishment of Numeric Criteria for Priority Toxic
Pollutants for the State of California.
(a) Scope. This section promulgates criteria for priority toxic
pollutants in the State of California for inland surface waters and
enclosed bays and estuaries. This section also contains a compliance
schedule provision.
(b)(1) Criteria for Priority Toxic Pollutants in the State of
California as described in the following table:
BILLING CODE 6560-50-P
[[Page 31712]]
[GRAPHIC] [TIFF OMITTED] TR18MY00.007
[[Page 31713]]
[GRAPHIC] [TIFF OMITTED] TR18MY00.008
[[Page 31714]]
[GRAPHIC] [TIFF OMITTED] TR18MY00.009
[[Page 31715]]
[GRAPHIC] [TIFF OMITTED] TR18MY00.010
BILLING CODE 6560-50-C
[[Page 31716]]
Footnotes to Table in Parargraph (b)(1):
a. Criteria revised to reflect the Agency q1* or RfD, as
contained in the Integrated Risk Information System (IRIS) as of
October 1, 1996. The fish tissue bioconcentration factor (BCF) from
the 1980 documents was retained in each case.
b. Criteria apply to California waters except for those waters
subject to objectives in Tables III-2A and III-2B of the San
Francisco Regional Water Quality Control Board's (SFRWQCB) 1986
Basin Plan, that were adopted by the SFRWQCB and the State Water
Resources Control Board, approved by EPA, and which continue to
apply.
c. Criteria are based on carcinogenicity of 10 (-6) risk.
d. Criteria Maximum Concentration (CMC) equals the highest
concentration of a pollutant to which aquatic life can be exposed
for a short period of time without deleterious effects. Criteria
Continuous Concentration (CCC) equals the highest concentration of a
pollutant to which aquatic life can be exposed for an extended
period of time (4 days) without deleterious effects. ug/L equals
micrograms per liter.
e. Freshwater aquatic life criteria for metals are expressed as
a function of total hardness (mg/L) in the water body. The equations
are provided in matrix at paragraph (b)(2) of this section. Values
displayed above in the matrix correspond to a total hardness of 100
mg/l.
f. Freshwater aquatic life criteria for pentachlorophenol are
expressed as a function of pH, and are calculated as follows: Values
displayed above in the matrix correspond to a pH of 7.8. CMC =
exp(1.005(pH)-4.869). CCC = exp(1.005(pH)-5.134).
g. This criterion is based on 304(a) aquatic life criterion
issued in 1980, and was issued in one of the following documents:
Aldrin/Dieldrin (EPA 440/5-80-019), Chlordane (EPA 440/5-80-027),
DDT (EPA 440/5-80-038), Endosulfan (EPA 440/5-80-046), Endrin (EPA
440/5-80-047), Heptachlor (440/5-80-052), Hexachlorocyclohexane (EPA
440/5-80-054), Silver (EPA 440/5-80-071). The Minimum Data
Requirements and derivation procedures were different in the 1980
Guidelines than in the 1985 Guidelines. For example, a ``CMC''
derived using the 1980 Guidelines was derived to be used as an
instantaneous maximum. If assessment is to be done using an
averaging period, the values given should be divided by 2 to obtain
a value that is more comparable to a CMC derived using the 1985
Guidelines.
h. These totals simply sum the criteria in each column. For
aquatic life, there are 23 priority toxic pollutants with some type
of freshwater or saltwater, acute or chronic criteria. For human
health, there are 92 priority toxic pollutants with either ``water +
organism'' or ``organism only'' criteria. Note that these totals
count chromium as one pollutant even though EPA has developed
criteria based on two valence states. In the matrix, EPA has
assigned numbers 5a and 5b to the criteria for chromium to reflect
the fact that the list of 126 priority pollutants includes only a
single listing for chromium.
i. Criteria for these metals are expressed as a function of the
water-effect ratio, WER, as defined in paragraph (c) of this
section. CMC = column B1 or C1 value x WER; CCC = column B2 or C2
value x WER.
j. No criterion for protection of human health from consumption
of aquatic organisms (excluding water) was presented in the 1980
criteria document or in the 1986 Quality Criteria for Water.
Nevertheless, sufficient information was presented in the 1980
document to allow a calculation of a criterion, even though the
results of such a calculation were not shown in the document.
k. The CWA 304(a) criterion for asbestos is the MCL.
l. [Reserved]
m. These freshwater and saltwater criteria for metals are
expressed in terms of the dissolved fraction of the metal in the
water column. Criterion values were calculated by using EPA's Clean
Water Act 304(a) guidance values (described in the total recoverable
fraction) and then applying the conversion factors in
Sec. 131.36(b)(1) and (2).
n. EPA is not promulgating human health criteria for these
contaminants. However, permit authorities should address these
contaminants in NPDES permit actions using the State's existing
narrative criteria for toxics.
o. These criteria were promulgated for specific waters in
California in the National Toxics Rule (``NTR''), at Sec. 131.36.
The specific waters to which the NTR criteria apply include: Waters
of the State defined as bays or estuaries and waters of the State
defined as inland, i.e., all surface waters of the State not ocean
waters. These waters specifically include the San Francisco Bay
upstream to and including Suisun Bay and the Sacramento-San Joaquin
Delta. This section does not apply instead of the NTR for this
criterion.
p. A criterion of 20 ug/l was promulgated for specific waters in
California in the NTR and was promulgated in the total recoverable
form. The specific waters to which the NTR criterion applies
include: Waters of the San Francisco Bay upstream to and including
Suisun Bay and the Sacramento-San Joaquin Delta; and waters of Salt
Slough, Mud Slough (north) and the San Joaquin River, Sack Dam to
the mouth of the Merced River. This section does not apply instead
of the NTR for this criterion. The State of California adopted and
EPA approved a site specific criterion for the San Joaquin River,
mouth of Merced to Vernalis; therefore, this section does not apply
to these waters.
q. This criterion is expressed in the total recoverable form.
This criterion was promulgated for specific waters in California in
the NTR and was promulgated in the total recoverable form. The
specific waters to which the NTR criterion applies include: Waters
of the San Francisco Bay upstream to and including Suisun Bay and
the Sacramento-San Joaquin Delta; and waters of Salt Slough, Mud
Slough (north) and the San Joaquin River, Sack Dam to Vernalis. This
criterion does not apply instead of the NTR for these waters. This
criterion applies to additional waters of the United States in the
State of California pursuant to 40 CFR 131.38(c). The State of
California adopted and EPA approved a site-specific criterion for
the Grassland Water District, San Luis National Wildlife Refuge, and
the Los Banos State Wildlife Refuge; therefore, this criterion does
not apply to these waters.
r. These criteria were promulgated for specific waters in
California in the NTR. The specific waters to which the NTR criteria
apply include: Waters of the State defined as bays or estuaries
including the San Francisco Bay upstream to and including Suisun Bay
and the Sacramento-San Joaquin Delta. This section does not apply
instead of the NTR for these criteria.
s. These criteria were promulgated for specific waters in
California in the NTR. The specific waters to which the NTR criteria
apply include: Waters of the Sacramento-San Joaquin Delta and waters
of the State defined as inland ( i.e., all surface waters of the
State not bays or estuaries or ocean) that include a MUN use
designation. This section does not apply instead of the NTR for
these criteria.
t. These criteria were promulgated for specific waters in
California in the NTR. The specific waters to which the NTR criteria
apply include: Waters of the State defined as bays and estuaries
including San Francisco Bay upstream to and including Suisun Bay and
the Sacramento-San Joaquin Delta; and waters of the State defined as
inland (i.e., all surface waters of the State not bays or estuaries
or ocean) without a MUN use designation. This section does not apply
instead of the NTR for these criteria.
u. PCBs are a class of chemicals which include aroclors 1242,
1254, 1221, 1232, 1248, 1260, and 1016, CAS numbers 53469219,
11097691, 11104282, 11141165, 12672296, 11096825, and 12674112,
respectively. The aquatic life criteria apply to the sum of this set
of seven aroclors.
v. This criterion applies to total PCBs, e.g., the sum of all
congener or isomer or homolog or aroclor analyses.
w. This criterion has been recalculated pursuant to the 1995
Updates: Water Quality Criteria Documents for the Protection of
Aquatic Life in Ambient Water, Office of Water, EPA-820-B-96-001,
September 1996. See also Great Lakes Water Quality Initiative
Criteria Documents for the Protection of Aquatic Life in Ambient
Water, Office of Water, EPA-80-B-95-004, March 1995.
x. The State of California has adopted and EPA has approved site
specific criteria for the Sacramento River (and tributaries) above
Hamilton City; therefore, these criteria do not apply to these
waters.
General Notes to Table in Paragraph (b)(1)
1. The table in this paragraph (b)(1) lists all of EPA's
priority toxic pollutants whether or not criteria guidance are
available. Blank spaces indicate the absence of national section
304(a) criteria guidance. Because of variations in chemical
nomenclature systems, this listing of toxic pollutants does not
duplicate the listing in Appendix A to 40 CFR Part 423-126 Priority
Pollutants. EPA has added the Chemical Abstracts Service (CAS)
registry numbers, which provide a unique identification for each
chemical.
2. The following chemicals have organoleptic-based criteria
recommendations that are not included on this chart: zinc, 3-methyl-
4-chlorophenol.
[[Page 31717]]
3. Freshwater and saltwater aquatic life criteria apply as
specified in paragraph (c)(3) of this section.
(2) Factors for Calculating Metals Criteria. Final CMC and CCC
values should be rounded to two significant figures.
(i) CMC = WER x (Acute Conversion Factor) x (exp{m<INF>A</INF>[1n
(hardness)]+b<INF>A</INF>})
(ii) CCC = WER x (Acute Conversion Factor) x
(exp{m<INF>C</INF>[1n (hardness)]+b<INF>C</INF>})
(iii) Table 1 to paragraph (b)(2) of this section:
----------------------------------------------------------------------------------------------------------------
Metal m<INF>A</INF> b<INF>A</INF> m<INF>C</INF> b<INF>C</INF>
----------------------------------------------------------------------------------------------------------------
Cadmium......................................... 1.128 -3.6867 0.7852 -2.715
Copper.......................................... 0.9422 -1.700 0.8545 -1.702
Chromium (III).................................. 0.8190 3.688 0.8190 1.561
Lead............................................ 1.273 -1.460 1.273 -4.705
Nickel.......................................... 0.8460 2.255 0.8460 0.0584
Silver.......................................... 1.72 -6.52
Zinc............................................ 0.8473 0.884 0.8473 0.884
----------------------------------------------------------------------------------------------------------------
Note to Table 1: The term ``exp'' represents the base e exponential function.
(iv) Table 2 to paragraph (b)(2) of this section:
----------------------------------------------------------------------------------------------------------------
Conversion CF for CF <SUP>a</SUP> for
factor (CF) for freshwater CF for saltwater
Metal freshwater chronic saltwater chronic
acute criteria criteria acute criteria criteria
----------------------------------------------------------------------------------------------------------------
Antimony....................................... (<SUP>d</SUP>) (<SUP>d</SUP>) (<SUP>d</SUP>) (<SUP>d</SUP>)
Arsenic........................................ 1.000 1.000 1.000 1.000
Beryllium...................................... (<SUP>d</SUP>) (<SUP>d</SUP>) (<SUP>d</SUP>) (<SUP>d</SUP>)
Cadmium........................................ <SUP>b</SUP> 0.944 <SUP>b</SUP> 0.909 0.994 0.994
Chromium (III)................................. 0.316 0.860 (<SUP>d</SUP>) (<SUP>d</SUP>)
Chromium (VI).................................. 0.982 0.962 0.993 0.993
Copper......................................... 0.960 0.960 0.83 0.83
Lead........................................... <SUP>b</SUP> 0.791 <SUP>b</SUP> 0.791 0.951 0.951
Mercury........................................ ............... .............. .............. ..............
Nickel......................................... 0.998 0.997 0.990 0.990
Selenium....................................... ............... (<SUP>c</SUP>) 0.998 0.998
Silver......................................... 0.85 (<SUP>d</SUP>) 0.85 (<SUP>d</SUP>)
Thallium....................................... (<SUP>d</SUP>) (<SUP>d</SUP>) (<SUP>d</SUP>) (<SUP>d</SUP>)
Zinc........................................... 0.978 0.986 0.946 0.946
----------------------------------------------------------------------------------------------------------------
Footnotes to Table 2 of Paragraph (b)(2):
<SUP>a</SUP> Conversion Factors for chronic marine criteria are not currently available. Conversion Factors for acute
marine criteria have been used for both acute and chronic marine criteria.
<SUP>b</SUP> Conversion Factors for these pollutants in freshwater are hardness dependent. CFs are based on a hardness of
100 mg/l as calcium carbonate (CaCO<INF>3</INF>). Other hardness can be used; CFs should be recalculated using the
equations in table 3 to paragraph (b)(2) of this section.
<SUP>c</SUP> Bioaccumulative compound and inappropriate to adjust to percent dissolved.
<SUP>d</SUP> EPA has not published an aquatic life criterion value.
Note to Table 2 of Paragraph (b)(2): The term ``Conversion
Factor'' represents the recommended conversion factor for converting
a metal criterion expressed as the total recoverable fraction in the
water column to a criterion expressed as the dissolved fraction in
the water column. See ``Office of Water Policy and Technical
Guidance on Interpretation and Implementation of Aquatic Life Metals
Criteria'', October 1, 1993, by Martha G. Prothro, Acting Assistant
Administrator for Water available from Water Resource Center, USEPA,
Mailcode RC4100, M Street SW, Washington, DC, 20460 and the note to
Sec. 131.36(b)(1).
(v) Table 3 to paragraph (b)(2) of this section:
------------------------------------------------------------------------
Acute Chronic
------------------------------------------------------------------------
Cadmium..................... CF=1.136672--[(ln CF = 1.101672--[(ln
{hardness}) {hardness})(0.04183
(0.041838)]. 8)]
Lead........................ CF=1.46203--[(ln CF = 1.46203--[(ln
{hardness})(0.14571 {hardness})(0.14571
2)]. 2)]
------------------------------------------------------------------------
(c) Applicability. (1) The criteria in paragraph (b) of this
section apply to the State's designated uses cited in paragraph (d) of
this section and apply concurrently with any criteria adopted by the
State, except when State regulations contain criteria which are more
stringent for a particular parameter and use, or except as provided in
footnotes p, q, and x to the table in paragraph (b)(1) of this section.
(2) The criteria established in this section are subject to the
State's general rules of applicability in the same way and to the same
extent as are other Federally-adopted and State-adopted numeric toxics
criteria when applied to the same use classifications including mixing
zones, and low flow values below which numeric standards can be
exceeded in flowing fresh waters.
(i) For all waters with mixing zone regulations or implementation
procedures, the criteria apply at the appropriate locations within or
at the boundary of the mixing zones; otherwise the criteria apply
throughout the water body including at the point of discharge into the
water body.
(ii) The State shall not use a low flow value below which numeric
standards can be exceeded that is less stringent than the flows in
Table 4 to paragraph (c)(2) of this section for streams and rivers.
(iii) Table 4 to paragraph (c)(2) of this section:
[[Page 31718]]
------------------------------------------------------------------------
Criteria Design flow
------------------------------------------------------------------------
Aquatic Life Acute Criteria (CMC)......... 1 Q 10 or 1 B 3
Aquatic Life Chronic Criteria (CCC)....... 7 Q 10 or 4 B 3
Human Health Criteria..................... Harmonic Mean Flow
------------------------------------------------------------------------
Note to Table 4 of Paragraph (c)(2): 1. CMC (Criteria Maximum
Concentration) is the water quality criteria to protect against
acute effects in aquatic life and is the highest instream
concentration of a priority toxic pollutant consisting of a short-
term average not to be exceeded more than once every three years on
the average.
2. CCC (Continuous Criteria Concentration) is the water quality
criteria to protect against chronic effects in aquatic life and is
the highest in stream concentration of a priority toxic pollutant
consisting of a 4-day average not to be exceeded more than once
every three years on the average.
3. 1 Q 10 is the lowest one day flow with an average recurrence
frequency of once in 10 years determined hydrologically.
4. 1 B 3 is biologically based and indicates an allowable
exceedence of once every 3 years. It is determined by EPA's
computerized method (DFLOW model).
5. 7 Q 10 is the lowest average 7 consecutive day low flow with
an average recurrence frequency of once in 10 years determined
hydrologically.
6. 4 B 3 is biologically based and indicates an allowable
exceedence for 4 consecutive days once every 3 years. It is
determined by EPA's computerized method (DFLOW model).
(iv) If the State does not have such a low flow value below which
numeric standards do not apply, then the criteria included in paragraph
(d) of this section apply at all flows.
(v) If the CMC short-term averaging period, the CCC four-day
averaging period, or once in three-year frequency is inappropriate for
a criterion or the site to which a criterion applies, the State may
apply to EPA for approval of an alternative averaging period,
frequency, and related design flow. The State must submit to EPA the
bases for any alternative averaging period, frequency, and related
design flow. Before approving any change, EPA will publish for public
comment, a document proposing the change.
(3) The freshwater and saltwater aquatic life criteria in the
matrix in paragraph (b)(1) of this section apply as follows:
(i) For waters in which the salinity is equal to or less than 1
part per thousand 95% or more of the time, the applicable criteria are
the freshwater criteria in Column B;
(ii) For waters in which the salinity is equal to or greater than
10 parts per thousand 95% or more of the time, the applicable criteria
are the saltwater criteria in Column C except for selenium in the San
Francisco Bay estuary where the applicable criteria are the freshwater
criteria in Column B (refer to footnotes p and q to the table in
paragraph (b)(1) of this section); and
(iii) For waters in which the salinity is between 1 and 10 parts
per thousand as defined in paragraphs (c)(3)(i) and (ii) of this
section, the applicable criteria are the more stringent of the
freshwater or saltwater criteria. However, the Regional Administrator
may approve the use of the alternative freshwater or saltwater criteria
if scientifically defensible information and data demonstrate that on a
site-specific basis the biology of the water body is dominated by
freshwater aquatic life and that freshwater criteria are more
appropriate; or conversely, the biology of the water body is dominated
by saltwater aquatic life and that saltwater criteria are more
appropriate. Before approving any change, EPA will publish for public
comment a document proposing the change.
(4) Application of metals criteria. (i) For purposes of calculating
freshwater aquatic life criteria for metals from the equations in
paragraph (b)(2) of this section, for waters with a hardness of 400 mg/
l or less as calcium carbonate, the actual ambient hardness of the
surface water shall be used in those equations. For waters with a
hardness of over 400 mg/l as calcium carbonate, a hardness of 400 mg/l
as calcium carbonate shall be used with a default Water-Effect Ratio
(WER) of 1, or the actual hardness of the ambient surface water shall
be used with a WER. The same provisions apply for calculating the
metals criteria for the comparisons provided for in paragraph
(c)(3)(iii) of this section.
(ii) The hardness values used shall be consistent with the design
discharge conditions established in paragraph (c)(2) of this section
for design flows and mixing zones.
(iii) The criteria for metals (compounds #1--#13 in the table in
paragraph (b)(1) of this section) are expressed as dissolved except
where otherwise noted. For purposes of calculating aquatic life
criteria for metals from the equations in footnote i to the table in
paragraph (b)(1) of this section and the equations in paragraph (b)(2)
of this section, the water effect ratio is generally computed as a
specific pollutant's acute or chronic toxicity value measured in water
from the site covered by the standard, divided by the respective acute
or chronic toxicity value in laboratory dilution water. To use a water
effect ratio other than the default of 1, the WER must be determined as
set forth in Interim Guidance on Determination and Use of Water Effect
Ratios, U.S. EPA Office of Water, EPA-823-B-94-001, February 1994, or
alternatively, other scientifically defensible methods adopted by the
State as part of its water quality standards program and approved by
EPA. For calculation of criteria using site-specific values for both
the hardness and the water effect ratio, the hardness used in the
equations in paragraph (b)(2) of this section must be determined as
required in paragraph (c)(4)(ii) of this section. Water hardness must
be calculated from the measured calcium and magnesium ions present, and
the ratio of calcium to magnesium should be approximately the same in
standard laboratory toxicity testing water as in the site water.
(d)(1) Except as specified in paragraph (d)(3) of this section, all
waters assigned any aquatic life or human health use classifications in
the Water Quality Control Plans for the various Basins of the State
(``Basin Plans'') adopted by the California State Water Resources
Control Board (``SWRCB''), except for ocean waters covered by the Water
Quality Control Plan for Ocean Waters of California (``Ocean Plan'')
adopted by the SWRCB with resolution Number 90-27 on March 22, 1990,
are subject to the criteria in paragraph (d)(2) of this section,
without exception. These criteria apply to waters identified in the
Basin Plans. More particularly, these criteria apply to waters
identified in the Basin Plan chapters designating beneficial uses for
waters within the region. Although the State has adopted several use
designations for each of these waters, for purposes of this action, the
specific standards to be applied in paragraph (d)(2) of this section
are based on the presence in all waters of some aquatic life
designation and the presence or absence of the MUN use designation
(municipal and domestic supply). (See Basin Plans for more detailed use
definitions.)
(2) The criteria from the table in paragraph (b)(1) of this section
apply to the water and use classifications defined in paragraph (d)(1)
of this section as follows:
[[Page 31719]]
------------------------------------------------------------------------
Water and use classification Applicable criteria
------------------------------------------------------------------------
(i) All inland waters of the United (A) Columns B1 and B2--all
States or enclosed bays and estuaries pollutants
that are waters of the United States (B) Columns C1 and C2--all
that include a MUN use designation. pollutants
(C) Column D1--all pollutants
------------------------------------------------------------------------
(ii) All inland waters of the United (A) Columns B1 and B2--all
States or enclosed bays and estuaries pollutants
that are waters of the United States (B) Columns C1 and C2--all
that do not include a MUN use pollutants
designation. (C) Column D2--all pollutants
------------------------------------------------------------------------
(3) Nothing in this section is intended to apply instead of
specific criteria, including specific criteria for the San Francisco
Bay estuary, promulgated for California in the National Toxics Rule at
Sec. 131.36.
(4) The human health criteria shall be applied at the State-adopted
10 (-6) risk level.
(5) Nothing in this section applies to waters located in Indian
Country.
(e)Schedules of compliance. (1) It is presumed that new and
existing point source dischargers will promptly comply with any new or
more restrictive water quality-based effluent limitations (``WQBELs'')
based on the water quality criteria set forth in this section.
(2) When a permit issued on or after May 18, 2000 to a new
discharger contains a WQBEL based on water quality criteria set forth
in paragraph (b) of this section, the permittee shall comply with such
WQBEL upon the commencement of the discharge. A new discharger is
defined as any building, structure, facility, or installation from
which there is or may be a ``discharge of pollutants'' (as defined in
40 CFR 122.2) to the State of California's inland surface waters or
enclosed bays and estuaries, the construction of which commences after
May 18, 2000.
(3) Where an existing discharger reasonably believes that it will
be infeasible to promptly comply with a new or more restrictive WQBEL
based on the water quality criteria set forth in this section, the
discharger may request approval from the permit issuing authority for a
schedule of compliance.
(4) A compliance schedule shall require compliance with WQBELs
based on water quality criteria set forth in paragraph (b) of this
section as soon as possible, taking into account the dischargers'
technical ability to achieve compliance with such WQBEL.
(5) If the schedule of compliance exceeds one year from the date of
permit issuance, reissuance or modification, the schedule shall set
forth interim requirements and dates for their achievement. The dates
of completion between each requirement may not exceed one year. If the
time necessary for completion of any requirement is more than one year
and is not readily divisible into stages for completion, the permit
shall require, at a minimum, specified dates for annual submission of
progress reports on the status of interim requirements.
(6) In no event shall the permit issuing authority approve a
schedule of compliance for a point source discharge which exceeds five
years from the date of permit issuance, reissuance, or modification,
whichever is sooner. Where shorter schedules of compliance are
prescribed or schedules of compliance are prohibited by law, those
provisions shall govern.
(7) If a schedule of compliance exceeds the term of a permit,
interim permit limits effective during the permit shall be included in
the permit and addressed in the permit's fact sheet or statement of
basis. The administrative record for the permit shall reflect final
permit limits and final compliance dates. Final compliance dates for
final permit limits, which do not occur during the term of the permit,
must occur within five years from the date of issuance, reissuance or
modification of the permit which initiates the compliance schedule.
Where shorter schedules of compliance are prescribed or schedules of
compliance are prohibited by law, those provisions shall govern.
(8) The provisions in this paragraph (e), Schedules of compliance,
shall expire on May 18, 2005.
[FR Doc. 00-11106 Filed 5-17-00; 8:45 am]
BILLING CODE 6560-50-P