Water Quality Standards; Withdrawal of Federal Aquatic Life Water
Quality Criteria for Copper and Nickel Applicable to South San
Francisco Bay, California
[Federal Register: June 25, 2003 (Volume 68, Number 122)]
[Proposed Rules]
[Page 37925-37929]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr25jn03-24]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-7519-4]
Water Quality Standards; Withdrawal of Federal Aquatic Life Water
Quality Criteria for Copper and Nickel Applicable to South San
Francisco Bay, California
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: This action proposes to amend the Federal regulations to
withdraw aquatic life water quality criteria for copper and nickel
applicable to south San Francisco Bay, California. South San Francisco
Bay is the area of San Francisco Bay that is located south of the
Dumbarton Bridge. On May 18, 2000, EPA promulgated Federal regulations
establishing water quality criteria for priority toxic pollutants for
the State of California, since the State had not complied with the
Clean Water Act. This regulation is known as the ``California Toxics
Rule'' or ``CTR.'' Thereafter, on May 22, 2002, the California Regional
Water Quality Control Board, San Francisco Bay Region (the RWQCB),
adopted amendments to its Water Quality Control Plan for the San
Francisco Bay Basin (Basin Plan). The amendments contained copper and
nickel aquatic life water quality criteria for south San Francisco Bay.
The State of California calls these criteria site-specific water
quality objectives or site-specific objectives. The State of
California's State Water Resources Control Board (SWRCB) and Office of
Administrative Law (OAL) then reviewed and approved the Basin Plan
amendments containing the site-specific objectives. On January 9, 2003,
the SWRCB submitted the Basin Plan amendment containing the site-
specific objectives to EPA Region 9 for review and approval. On January
21, 2003, EPA Region 9 approved the copper and nickel aquatic life
site-specific objectives for south San Francisco Bay.
Since the State of California now has aquatic life site-specific
objectives, effective under the Clean Water Act (CWA), for copper and
nickel for south San Francisco Bay, EPA has determined that the
Federally-promulgated copper and nickel aquatic life criteria are no
longer needed for south San Francisco Bay. In this proposed rule, EPA
is proposing to withdraw the copper and nickel aquatic life criteria
for south San Francisco Bay from the CTR.
DATES: All written comments received on or before July 25, 2003, will
be considered in preparation of the final rule. Comments postmarked
after this date may not be considered.
ADDRESSES: You should address written comments to Diane E. Fleck, P.E.,
Esq., Water Division (WTR-2), U.S. EPA Region 9, 75 Hawthorne Street,
San Francisco, California 94105, Attention Docket ID No. OW-2003-0015.
Please send an original and three copies of comments and enclosures
(including references). You may also submit comments electronically or
through hand-delivery or courier. Follow the detailed instructions as
provided under ``How and To Whom to Submit Comments.''
FOR FURTHER INFORMATION CONTACT: Diane E. Fleck, P.E., Esq. (WTR-2) or
Nancy Yoshikawa (WTR-5) at U.S. EPA Region 9, Water Division, 75
Hawthorne Street, San Francisco, CA 94105 (tel: 415-972-3480 or 415-
972-3535, respectively, fax: 415-947-3537 or 415-974-3545,
respectively) or e-mail at Fleck.Diane@EPA.gov or
Yoshikawa.Nancy@EPA.gov. For general or administrative questions,
please contact Brian Thompson at U.S. EPA Headquarters, Office of
Water, 1200 Pennsylvania Avenue, NW., Washington, DC 20460 (tel: 202-
566-0382, fax: 202-566-0409) or e-mail at Thompson.Brian@EPA.gov.
SUPPLEMENTARY INFORMATION:
Potentially Regulated Entities
No one is regulated by this proposed rule. This proposed rule, if
adopted, merely withdraws Federal copper and nickel aquatic life water
quality criteria applicable to south San Francisco Bay, California.
How To Obtain Copies of This Document and Other Related Information
1. Docket. EPA has established an official public docket for this
action under Docket ID No. OW-2003-0015. The official public docket
consists of the documents specifically referenced in this action, any
public comments received, and other information related to this action.
Although a part of the official docket, the public docket does not
include Confidential Business Information (CBI) or other information
whose disclosure is restricted by statute. The official public docket
is the collection of materials that is available for public viewing
under, ``Water Quality Standards; Withdrawal of Federal Aquatic Life
Water Quality Criteria for Copper and Nickel Applicable to South San
Francisco Bay, California,'' at U.S. EPA Region 9, Water Division, 75
Hawthorne Street, San Francisco, California 94105, phone: 415-972-3480.
This Docket Facility is open from 8:30 a.m. PST to 4:30 p.m. PST,
Monday through Friday, excluding legal holidays. A reasonable fee will
be charged for copies.
2. Electronic Access. You may access this Federal Register document
electronically through the EPA Internet under the ``Federal Register''
listings at http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to submit or view public
comments, access the index listing of the contents of the official
public docket, and to access those documents in the public docket that
are available electronically. Once in the system, select ``search,''
then key in the appropriate docket identification number.
Certain types of information will not be placed in the EPA Dockets.
Information claimed as CBI and other information whose disclosure is
restricted by statute, which is not included in the official public
docket will not be available for public viewing in EPA's electronic
public docket. EPA's policy is that copyrighted material will not be
placed in EPA's electronic public docket but will be available only in
printed, paper form in the official public docket. To the extent
feasible, publicly available docket materials will be made available in
EPA's electronic public docket. When a document is selected from the
index list in EPA Dockets, the system will identify whether the
document is available for viewing in EPA electronic public docket.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the docket facility. EPA intends to work towards providing electronic
access to all of the publicly available docket materials through the
EPA electronic public docket.
For public commenters, it is important to note that EPA's policy is
that public comments, whether submitted electronically or in paper,
will be made available for public viewing in EPA's electronic public
docket as EPA receives them and without change, unless the comment
contains copyrighted material, CBI, or other information whose
disclosure is restricted by statute. When EPA identifies a comment
containing copyrighted material, EPA will provide a reference to that
material in the
[[Page 37927]]
version of the comment that is placed in EPA's electronic public
docket. The entire printed comment, including the copyrighted material,
will be available through the docket facility.
Public comments submitted on computer disks that are mailed or
delivered to the docket will be transferred to EPA's electronic public
docket. Public comments that are mailed or delivered to the docket will
be scanned and placed in EPA's electronic public docket. Where
practical, physical objects will be photographed, and the photograph
will be placed in EPA's electronic public docket along with a brief
description written by the docket staff.
For additional information about EPA's electronic public docket,
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.
How and To Whom To Submit Comments
You may submit comments electronically, by mail, or through hand
delivery/courier. To ensure proper receipt by EPA, identify the
appropriate docket identification number in the subject line on the
first page of your comment. Please ensure that your comments are
submitted within the specified comment period. Comments received after
the close of the comment period will be marked ``late.'' While EPA is
not required to consider these late comments, we will make every
attempt to consider them.
1. Electronically. If you submit an electronic comment as
prescribed below, EPA recommends that you include your name, mailing
address, and an e-mail address or other contact information in the body
of your comment. Also include this contact information on the outside
of any disk or CD ROM you submit, and in any cover letter accompanying
the disk or CD ROM. This ensures that you can be identified as the
submitter of the comment and allows EPA to contact you in case EPA
cannot read your comment due to technical difficulties or needs further
information on the substance of your comment. EPA's policy is that EPA
will not edit your comment, and any identifying or contact information
provided in the body of a comment will be included as part of the
comment that is placed in the official public docket, and made
available in EPA's electronic public docket. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.
i. EDOCKETS. Your use of EPA's electronic public docket to submit
comments to EPA electronically is EPA's preferred method for receiving
comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and
follow the online instructions for submitting comments. To access EPA's
electronic public docket from the EPA Internet Home Page, select
``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the
system, select ``search,'' and then key in Docket ID OW-2003-0015. The
system is an ``anonymous access'' system, which means EPA will not know
your identity, e-mail address, or other contact information unless you
provide it in the body of your comment.
ii. E-mail. Comments may be sent by electronic mail (e-mail) to
Fleck.Diane@EPA.gov, Attention Docket ID No. OW-2003-0015. In contrast
to EPA's electronic public docket, EPA's e-mail system is not an
``anonymous access'' system. If you send an e-mail comment directly to
the Docket without going through EPA's electronic public docket, EPA's
e-mail system automatically captures your e-mail address. E-mail
addresses that are automatically captured by EPA's e-mail system are
included as part of the comment that is placed in the official public
docket, and made available in EPA's electronic public docket.
iii. Disk or CD ROM. You may submit comments on a disk or CD ROM
that you mail to the address identified in the following paragraph.
These electronic submissions will be accepted in WordPerfect or ASCII
file format. Avoid the use of special characters and any form of
encryption.
2. By Mail. Send your comments to: Diane E. Fleck, P.E., Esq.,
Water Division (WTR-2), U.S. EPA Region 9, 75 Hawthorne Street, San
Francisco, California 94105, Attention Docket ID No. OW-2003-0015.
3. By Hand Delivery or Courier. Deliver your comments to the
address identified in the preceding paragraph, attention Docket ID OW-
2003-0015. Such deliveries are only accepted during the docket's normal
hours of operation from 8:30 a.m. PST to 4:30 p.m. PST, Monday through
Friday, excluding legal holidays.
Background
On May 18, 2000, EPA promulgated a final rule known as the
``California Toxics Rule'' or ``CTR'' to establish numeric water
quality criteria for priority toxic pollutants for the State of
California, since the State had not complied fully with section
303(c)(2)(B) of the Clean Water Act (CWA) (65 FR 31682). The criteria,
codified at 40 CFR 131.38, became the applicable water quality criteria
in California effective May 18, 2000, for all purposes and programs
under the CWA.
EPA acknowledged in the preamble to the CTR that the State of
California is working to satisfy the requirements of CWA section
303(c)(2)(B) and anticipated that the Agency, once the state submitted
its water quality standards to EPA, would approve the State-adopted
water quality criteria for pollutants included in the CTR (65 FR 31684,
May 18, 2000). The State of California calls these criteria site-
specific water quality objectives or site-specific objectives. The
water quality standards program was developed with an emphasis on State
primacy. Although in the CTR EPA promulgated toxic criteria for the
State of California, EPA prefers that States maintain primacy, revise
their own standards, and achieve full compliance (see 57 FR 60860,
December 22, 1992).
In a rulemaking similar to the CTR, EPA determined that if the
State's criteria were no less stringent than the promulgated Federal
criteria, EPA would withdraw its criteria without notice and comment.
However, if the State adopted criteria that were less stringent than
the Federally-promulgated criteria, but in the Agency's judgment fully
met the requirements of the Act, EPA would provide an opportunity for
public comment before withdrawing the Federally-promulgated criteria
(see 57 FR 60860, December 22, 1992). As described in detail below
under ``Site-Specific Aquatic Life Objectives for Copper and Nickel,''
the State of California recently adopted copper and nickel aquatic life
site-specific objectives for the south San Francisco Bay which EPA
subsequently approved.
In today's action, EPA is proposing to amend the CTR by withdrawing
aquatic life copper and nickel criteria applicable to south San
Francisco Bay, California.
Site-Specific Aquatic Life Objectives for Copper and Nickel
On May 22, 2002, the California Regional Water Quality Control
Board, San Francisco Bay Region, adopted site-specific water quality
objectives for nickel and copper to protect aquatic life in the south
San Francisco Bay and submitted the revised Water Quality Control Plan
to EPA on January 9, 2003. The aquatic life water quality criteria for
copper contained in the CTR table at 40 CFR 131.38(b)(1) for saltwater
are: 4.8 ug/l dissolved acute (exposure for a short period of time) and
3.1 ug/1 dissolved chronic (exposure for an extended [4 day]
period of
time). The aquatic life water quality criteria for
[[Page 37928]]
nickel contained in the CTR table at 40 CFR 131.38(b)(1) for saltwater
are: 74 ug/l dissolved acute (exposure for a short period of time) and
8.2 ug/l dissolved chronic (exposure for an extended [4 day]
period of
time). Both the copper and nickel criteria are further expressed as a
function of the water-effect ratio (or WER). The WER in the CTR is
assumed to be 1 for all applicable pollutants but may be otherwise
defined by the State using appropriate procedures (see 65 FR 31718).
The aquatic life water quality objectives for copper adopted by the
State of California and approved by EPA for south San Francisco Bay
are: 10.8 ug/l dissolved acute (exposure for a 1 hour average period of
time) and 6.9 ug/l dissolved chronic (exposure for a 4 day average
period of time). The aquatic life water quality objectives for nickel
adopted by the State of California and approved by EPA for south San
Francisco Bay are: 62.4 ug/l dissolved acute (exposure for a 1 hour
average period of time) and 11.9 ug/l dissolved chronic (exposure for a
4 day average period of time).
Under the procedures set out in the National Toxics Rule, published
December 22, 1992, and referenced in the CTR, when a state adopts and
EPA approves water quality criteria that meet the requirements of the
CWA, EPA will issue a rule amending the federal regulations to withdraw
the federally applicable criteria. If the State's criteria are no less
stringent than the promulgated Federal criteria, EPA will withdraw its
criteria without notice and comment rulemaking because additional
comment is unnecessary. However, if a State adopts criteria that are
less stringent than the Federally promulgated criteria, but that in the
Agency's judgement fully meet the requirements of the Act, EPA will
provide an opportunity for public comment before withdrawing the
Federally promulgated criteria.
On October 17, 2002, the State Water Resources Board adopted the
site-specific objectives for copper and nickel in the lower south San
Francisco Bay. The objectives were subsequently submitted to EPA on
January 9, 2003, for its review and approval. EPA recognizes that three
out of the four California criteria for copper and nickel are less
stringent than the federally CTR promulgated criteria. However, the
site-specific objectives were developed from the results of a number of
detailed studies and technical reports that were the subject of
technical peer review and were part of the collaborative stakeholder
process known as the ``Santa Clara Basin Watershed Management
Initiative.'' Based on this additional information, EPA determined that
these adopted criteria are fully protective of the aquatic life
designated uses of California's waters in the south San Francisco Bay
and met the requirements of the Clean Water Act. EPA approved
California's water quality objectives on January 21, 2003. Therefore,
EPA determined that the federal aquatic life water quality criteria for
copper and nickel in these waters are no longer necessary.
Because three out of the four California criteria for copper and
nickel are less stringent than the federally promulgated criteria, EPA
is requesting comments on its action to withdraw copper and nickel
criteria from the CTR. EPA will address public comments in a subsequent
final rule based on this proposed rule. Any parties interested in
commenting must do so at this time.
Statutory and Executive Order Reviews
1. Executive Order 12866--Regulatory Planning and Review
This action withdraws specific Federal requirements applicable to
south San Francisco Bay, California and imposes no regulatory
requirements or costs on any person or entity, does not interfere with
the action or planned action of another agency, and does not have any
budgetary impacts or raise novel legal or policy issues. Thus, it has
been determined that this rule is not a ``significant regulatory
action'' under the terms of Executive Order 12866 (58 FR 51735, October
4, 1993) and is therefore not subject to Office of Management and
Budget (OMB) review.
2. Paperwork Reduction Act
This proposed rule does not impose an information collection burden
under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.) because it is administratively proposing to withdraw
Federal requirements that no longer need to apply to south San
Francisco Bay, California.
3. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, generally requires an agency to prepare a regulatory flexibility
analysis of a rule that is 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
significant economic impact on a substantial number of small entities.
This proposed rule imposes no regulatory requirements or costs on any
small entity. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
4. Unfunded Mandate Reform Act
Title III of the Unfunded Mandates Reform Act (UMRA) (Public Law
104-4) establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, Tribal and local
governments and the private sector. Today's proposed rule contains no
Federal mandates (under the regulatory provisions of Title II of the
UMRA) for State, Tribal, or local governments or the private sector
because it imposes no enforceable duty on any of these entities. Thus,
today's proposed rule is not subject to the requirements of UMRA
section 202 and 205 for a written statement and small government agency
plan. Similarly, EPA has determined that this proposed rule contains no
regulatory requirements that might significantly or uniquely affect
small governments and is therefore not subject to UMRA section 203.
5. Executive Order 13132--Federalism
Executive Order 13132, entitled, ``Federalism'' (64 FR 43255,
August 10, 1999), requires EPA to develop an accountable process to
ensure State and local government officials have an opportunity to
provide input in the development of regulatory policies 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 governments. This
proposed rule imposes no regulatory requirements or costs on any State
or local governments, therefore, it does not have federalism
implications under Executive Order 13132.
6. Executive Order 13175--Consultation and Coordination With Indian
Tribal Governments
Again, this proposed rule imposes no regulatory requirements or
costs on any Tribal government. It does not have substantial direct
effects on Tribal governments, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal government and Indian tribes, as
specified in Executive Order 13175, entitled ``Consultation and
Coordination with Indian Tribal Governments'' (59 FR 22951, November 6,
2000).
[[Page 37929]]
7. Executive Order 13045--Protection of Children From Environmental
Health and Safety Risks
This proposed rule is not subject to Executive Order 13045,
entitled ``Protection of Children from Environmental Health Risks and
Safety Risks'' (62 FR 19885, April 23, 1997), because it is not
economically significant, and EPA has no reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children.
8. Executive Order 13211--Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211,
entitled ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, and Use'' (66 FR 28355, May 22, 2001),
because it is not a significant regulatory action under Executive Order
12866.
9. National Technology Transfer and Advancement Act
The requirements of section 12(d) of the National Technology
Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply
because this rule does not involve technical standards.
List of Subjects in 40 CFR Part 131
Environmental protection, Indian-lands, Intergovernmental
Relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: June 20, 2003.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, 40 CFR part 131 is
proposed to be 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(b)(1) is amended by revising Footnote b to read
as follows:
Sec. 131.38 Establishment of Numeric Criteria for Priority Toxic
Pollutants for the State of California.
* * * * *
(b)(1) * * *
Footnotes to Table in Paragraph (b)(1):
* * * * *
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. For copper and nickel, criteria apply to California waters
except for waters south of Dumbarton Bridge in San Francisco Bay
that are subject to the objectives in the SFRWQCB's Basin Plan as
amended by SFRWQCB Resolution R2-2002-0061, dated May 22, 2002, and
approved by the State Water Resources Control Board. EPA approved
the aquatic life site-specific objectives on January 21, 2003. The
copper and nickel aquatic life site-specific objectives contained in
the amended Basin Plan apply instead.
* * * * *
[FR Doc. 03-16231 Filed 6-24-03; 8:45 am]
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