Withdrawal of Federal Human Health and Aquatic Life Water Quality
Criteria for Toxic Pollutants Applicable to Michigan
[Federal Register: November 8, 2002 (Volume 67, Number 217)]
[Rules and Regulations]
[Page 68039-68041]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08no02-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-7406-1]
Withdrawal of Federal Human Health and Aquatic Life Water Quality
Criteria for Toxic Pollutants Applicable to Michigan
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: EPA is taking direct final action to amend the Federal
regulations to withdraw water quality criteria applicable to Michigan.
In 1992, EPA promulgated Federal regulations establishing water quality
criteria for priority toxic pollutants for 12 States and two
territories, including Michigan, that had not fully complied with Clean
Water Act (CWA); these regulations are known as the ``National Toxics
Rule'' or ``NTR''. Thereafter, EPA published regulations pursuant to
section 118 of the CWA to establish consistent enforceable protections
for the Great Lakes system (Water Quality Guidance for the Great Lakes
System). In compliance with the Water Quality Guidance for the Great
Lakes System, Michigan adopted water quality standards on July 29,
1997, which included numeric water quality criteria and methodologies
for deriving numeric criteria for the same priority toxic pollutants
included in the NTR. EPA approved these standards on August 4, 2000.
Since Michigan now has criteria, effective under the CWA, for the same
priority toxic pollutants in the NTR, EPA has determined that the
Federally promulgated criteria are no longer needed. In this direct
final rule, EPA is withdrawing Michigan from the NTR without prior
proposal because EPA views this action as noncontroversial and does not
anticipate adverse comment.
DATES: This rule is effective on February 6, 2003 without further
notice, unless EPA receives adverse comment by December 9, 2002. If EPA
receives such comment, EPA will publish a timely withdrawal of this
direct final rule in the Federal Register informing the public that
this rule will not take effect. Comments postmarked after this date may
not be considered.
ADDRESSES: Please send an original and three copies of comments and
enclosures (including references) to W-01-15, WQCR Comment Clerk; Water
Docket, U.S. EPA, 1200 Pennsylvania Ave NW, MC-4101T, Washington, DC
20460. Alternatively, comments may be submitted electronically in ASCII
or Word Perfect 5.1, 5.2, 6.1, or 8.0 formats avoiding the use of
special characters and any form of encryption to OW-Docket@epa.gov.
Identify electronic comments by the docket number W-01-15. Submit hand
delivered comments to W-01-15, EPA's Water Docket, U.S. EPA, EPA West,
1301 Constitution Ave NW, Room B135, Washington DC 20460. No facsimiles
(faxes) will be accepted. Comments will be available at the Water
Docket, 202-566-2426, Monday through Friday, excluding legal holidays,
during normal business hours of 8:30 a.m. to 4:30 p.m.
The supporting record for this rulemaking may be inspected at EPA
Region 5, Office of Water, 77 West Jackson Boulevard, 16th Floor,
Chicago, IL 60604-3507, Monday through Friday, excluding legal
holidays, during normal business hours of 9 a.m. to 5 p.m.. Please
contact Dave Pfeifer, as listed in the FOR FURTHER INFORMATION CONTACT
section, before arriving.
A copy of Michigan's water quality standards may be obtained
electronically from EPA's Water Quality Standards Repository, at http:/
/www.epa.gov/waterscience/standards/wqslibrary/mi/mi.html.
FOR FURTHER INFORMATION CONTACT: Manjali Gupta Vlcan at EPA
Headquarters, Office of Water (4305T), 1200 Pennsylvania Ave NW.,
Washington, DC., 20460 (tel: 202-566-0373, fax 202-566-0409) or email
at vlcan.manjali@epa.gov , or Dave Pfeifer in EPA's Region 5 at 312-
353-9024 or e-mail at pfeifer.david@epa.gov.
SUPPLEMENTARY INFORMATION:
Potentially Regulated Entities
No one is regulated by this rule. This rule merely withdraws
Federal water quality criteria applicable to Michigan.
Background
In 1992, EPA promulgated a final rule known as the ``National
Toxics Rule,'' or ``NTR,'' to establish numeric water quality criteria
for 12 States and two Territories, including Michigan, (hereafter
``States'') that had not complied fully with section 303(c)(2)(B) of
the CWA (57 FR 60848). The criteria, codified at 40 CFR 131.36, became
the applicable water quality standards in
[[Page 68040]]
those 14 States for all purposes and programs under the CWA effective
February 5, l993.
As described in the preamble to the final NTR, when a State adopts,
and EPA approves, water quality criteria that meet the requirements of
section 303(c)(2)(B) of the CWA, EPA will issue a rule amending the NTR
to withdraw the Federal criteria for that State. 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 on the criteria is unnecessary (see 65 FR
19659). However, if a State adopts criteria that are less stringent
than the federally promulgated criteria, but that in the Agency's
judgment fully meet the requirements of the Act, EPA will provide an
opportunity for public comment before withdrawing the federally
promulgated criteria. (See 57 FR 60860, December 22, 1992) Michigan
adopted water quality standards, effective July 29, 1997, pursuant to
the requirements of 40 CFR part 132, Water Quality Guidance for the
Great Lakes System (60 FR 15366), hereafter referred to as the ``GLI.''
These standards include numeric criteria for the protection of aquatic
life for 15 toxic pollutants and numeric criteria for the protection of
human health for 18 toxic pollutants. Michigan also adopted a
methodology to derive numeric criteria and values as needed to
implement the State's narrative criteria of ``no toxic in toxic
amounts''. EPA approved these water quality standards on August 4, 2000
(65 FR 47864-47874). All waters in the State of Michigan are within the
Great Lakes drainage basin. Therefore, the standards that were adopted
and approved to comply with 40 CFR part 132 (which applies to all
waters in the Great Lakes basin) apply statewide.
In 1988, EPA published guidance to States on how to adopt water
quality standards to comply with CWA section 303(c)(2)(B) (see Rebecca
W. Hanmer memo, December 12, 1988, ``Guidance for State Implementation
of Water Quality Standards for CWA Section 303(c)(2)(B)'' at
www.epa.gov/waterscience/library/wqstandards/finalguidance.pdf). This
guidance was reflected in the preamble to the National Toxics Rule (57
FR 60853, December 22, 1992). EPA described three options for
satisfying the requirements of CWA section 303(c)(2)(B). These options
are:
Option 1: Adopt statewide numeric criteria in State water
quality standards for all section 307(a) toxic pollutants for which
EPA has published criteria guidance.
Option 2: Adopt specific numeric criteria in State standards for
section 307(a) toxic pollutants, as necessary, to protect the
designated uses.
Option 3: Adopt a procedure to derive a numeric criterion, as
necessary, from a narrative water quality standard provision that
prohibits toxicity in receiving waters.
As described earlier, Michigan's water quality standards include a
procedure to derive a numeric criterion from a narrative water quality
criterion that prohibits toxicity in receiving waters. EPA's guidance
describes numerous conditions that EPA indicated, if satisfied, would
ensure acceptable scientific quality and full involvement of the public
and EPA and therefore allow the State to use Option 3 to satisfy the
requirements of section 303(c)(2)(B). Michigan has satisfied these
conditions:
(1) Michigan adopted a procedure to calculate numeric criteria
and values for the protection of designated uses.
(2) Michigan adopted the procedure identified in 40 CFR part
132. Therefore, EPA determines that Michigan's procedure results in
numeric criteria that are sufficiently protective to meet the goals
of the Act.
(3) Michigan provided full opportunity for public participation
during the adoption of the procedure.
(4) The procedure was formally adopted as a State rule and is
mandatory in application.
(5) The procedure was submitted to EPA for review and approval
as part of the State's water quality standards regulation.
By adopting numeric criteria for some priority toxic pollutants and
a methodology to translate the narrative criterion into numeric values
for the remaining priority toxic pollutants, Michigan has complied with
the requirements of section 303(c)(2)(B) of the CWA to have numeric
criteria for priority toxic pollutants. As mentioned earlier, EPA
approved these water quality standards on August 4, 2000 (65 FR 47864-
47874). Since Michigan now has criteria, effective under the Clean
Water Act, for the same priority toxic pollutants in the NTR, EPA has
determined that the Federally-promulgated criteria are no longer
needed.
While EPA has determined that Michigan has fully complied with the
requirements of CWA section 303(c)(2)(B), EPA recognizes that
Michigan's standards differ from NTR criteria in certain respects
because Michigan's standards reflect EPA's most recent guidance as
published by EPA in the GLI. Under the procedures set out in the NTR,
EPA would normally take comment prior to withdrawal from the NTR.
However, as required by the GLI, EPA took comment on its decision to
approve the portion of Michigan's standards relevant to today's action
in a notice published in the Federal Register on September 14, 1999 (64
FR 49803). Because the public had the opportunity to comment both on
the State's adoption of criteria and EPA's approval of the State's
criteria, EPA does not anticipate any adverse comments on withdrawal of
Michigan from the NTR. For this reason, EPA is taking this action in a
direct final rule. However, in the ``Proposed Rules'' section of
today's Federal Register publication, EPA is publishing a separate
document that will serve as the proposal to withdraw Federal water
quality criteria for toxic pollutants applicable to Michigan if adverse
comments are filed. This rule will be effective on February 6, 2003
without further notice unless EPA receives adverse comment by December
9, 2002. If EPA receives adverse comment, the Agency will publish a
timely withdrawal in the Federal Register informing the public that the
rule will not take effect. EPA will address all public comments in a
subsequent final rule based on the proposed rule. EPA will not
institute a second comment period on this action. Any parties
interested in commenting must do so at this time.
Statutory and Executive Order Reviews
Executive Order 12866--Regulatory Planning and Review
This action withdraws Federal requirements applicable to Michigan
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
OMB review.
Paperwork Reduction Act
This rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 because it is
administratively withdrawing Federal requirements that no longer need
to apply to Michigan.
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
[[Page 68041]]
economic impact on a substantial number of small entities. This 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.
Unfunded Mandates Reform Act
Title III of the Unfunded Mandates Reform Act (UMRA) (Pub. L. 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 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 rule is not
subject to the requirements of UMRA sections 202 and 205 for a written
statement and small government agency plan. Similarly, EPA has
determined that this rule contains no regulatory requirements that
might significantly or uniquely affect small governments and is
therefore not subject to UMRA section 203.
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 rule
imposes no regulatory requirements or costs on any State or local
governments, therefore, it does not have federalism implications under
Executive Order 13132.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
Again, this 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).
Executive Order 13045--Protection of Children from Environmental Health
and Safety Risks
This 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.
Executive Order 13211--Actions That Significantly Affect Energy Supply,
Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
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.
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 action is not a ``major rule'' as defined by 5 U.S.C.
804(2) and will be effective on February 6, 2003.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians--land, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: November 1, 2002.
Christine Todd Whitman,
Administrator.
For the reasons set out in the preamble, 40 CFR part 131 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.
Sec. 131.36 [Amended]
2. Section 131.36 is amended by removing and reserving paragraph
(d)(7).
[FR Doc. 02-28497 Filed 11-7-02; 8:45 am]
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