Stay of Federal Water Quality Criteria for Metals

SUMMARY: In December 1992, EPA promulgated water quality criteria for

toxic pollutants in order to protect human health and aquatic life in

fourteen states that had not adopted the necessary toxics criteria as

required by the Clean Water Act. Some of the criteria are for

protection of aquatic life from the effects of metals in the water.

After EPA promulgated the rule, EPA issued a new policy for setting

water quality criteria for metals. In order to allow permitting

authorities in the states covered by the rule the flexibility to follow

EPA's new policy, the Agency is staying the effectiveness of specific

metals criteria promulgated in the rule. The stay will remain in effect

until EPA promulgates new metals criteria for the states covered by the

rule.

EFFECTIVE DATE: This stay is effective April 14, 1995.

FOR FURTHER INFORMATION CONTACT: Tim Kasten, Office of Science and

Technology, Office of Water (4304), USEPA, 401 M Street SW.,

Washington, D.C. 20460, (202) 260-5994.

SUPPLEMENTARY INFORMATION:

Background

In the National Toxics Rule (``NTR''), EPA promulgated numeric

water quality criteria for toxic pollutants for fourteen states and

jurisdictions that had not adopted sufficient criteria (``NTR

states''). 57 FR 60848 (December 22, 1992). That action brought those

states into compliance with section 303(c)(2)(B) of the Clean Water Act

(``CWA'') which requires states to adopt criteria for all toxic

pollutants the discharge or presence of which could interfere with

state designated uses of waters, and for which EPA had published

criteria.

Among the criteria that EPA promulgated for the NTR states were

aquatic life water quality criteria for metals (``metals criteria'').

Aquatic life water quality criteria are estimates of the highest

concentration of a substance that may be present in water while

maintaining the protection of aquatic life from acute or chronic

effects. A central issue in establishing and implementing metals

criteria is how to accurately determine the fraction of the total metal

that is biologically available and toxic.

At the time that EPA promulgated the NTR, the Agency's policy was

to express metals criteria using total recoverable metal concentrations

(``total recoverable metal''). While metals criteria could be

implemented by measuring either total recoverable metal or dissolved

metal, total recoverable metal measurement, being more conservative,

provided a greater level of protection than dissolved metal

measurement. Because the NTR was to cover a substantial number of water

bodies, EPA chose the simplest, most protective approach, and the one

reflected in its criteria documents to implement the metals criteria,

and promulgated metals criteria based on total recoverable metal.

After promulgation of the NTR, the Agency continued to address the

issue of how best to express metals criteria. EPA held a meeting with

invited experts in January 1993 in Annapolis, Maryland to further

elicit comment on the use of total recoverable metal versus dissolved

metal in developing national metals criteria. The Agency solicited

comments on the recommendations made by presenters at the meeting in

the Federal Register on July 9, 1993 (58 FR 32131). Subsequently, EPA

determined that dissolved metal approximates the biologically available

fraction of waterborne metals for aquatic organisms better than total

recoverable metal. On October 1, 1993, the Agency issued guidance on

the interpretation and implementation of metals criteria providing that

``[i]t is now the policy of the Office of Water that the use of

dissolved metal to set and measure compliance with water quality

standards is the recommended approach * * *''. Office of Water Policy

and Technical Guidance on Interpretation and Implementation of Aquatic

Life Metals Criteria.

A number of parties brought lawsuits challenging the NTR metals

criteria. The Plaintiffs in those lawsuits wanted the permitting

authorities in the NTR states to use criteria based on dissolved metal.

EPA has concluded that it is in the public interest to revise the

metals criteria promulgated in the NTR to reflect the new metals

policy. In settlement of the litigation, EPA has agreed to stay the

numeric aquatic life water quality criteria (expressed as total

recoverable metal) for: arsenic, cadmium, chromium (III), chromium

(VI), copper, lead, mercury (acute only), nickel, selenium (saltwater

only), silver, and zinc. This stay will be in effect until EPA takes

action to amend the NTR by promulgating new metals criteria based on

dissolved metal.

Effective Date of the Stay

Pursuant to section 705 of the Administrative Procedure Act (APA)

(5 U.S.C. 705), ``when an agency finds that justice so requires, it may

postpone the effective date of actions taken by it, pending judicial

review.'' EPA has determined that this stay is necessary pending

resolution of the litigation. Consequently, EPA finds issuance of this

stay is in the interests of justice.

In addition, under section 553 of the APA (5 U.S.C. 553), when an

Agency finds good cause to exist, it may issue a rule without first

providing notice and comment and make the rule immediately effective.

EPA believes that it has good cause both to issue this stay without

notice and comment and to make the stay immediately effective.

A stay of the metals criteria is central to the settlement of the

pending litigation, and it is in the public interest to avoid costly

and potentially protracted litigation by issuing a stay. Further, the

stay relieves a burden on the regulated community. The stay will avoid

potential harm to dischargers in the NTR states for which National

Pollutant Discharge Elimination System permits are being issued

pursuant to section 402 of the Clean Water Act by allowing permitting

authorities to establish permit limits based on dissolved metal

concentrations consistent with current Agency policy. It is not in the

public interest to require permitting authorities in the NTR states to

impose effluent limitations based on total recoverable metal ambient

water quality criteria which EPA now considers to be more stringent

than may be necessary to protect designated uses.

EPA considers staying the metals criteria to be in the public

interest as noted above, and therefore good cause exists to issue the

stay without notice and comment and to make the stay immediately

effective.

Regulatory Assessment Requirements

A. Executive Order 12866

Under Executive Order 12866 (56 FR 51735, October 4, 1993), the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to all the requirements of the Executive Order

(i.e., Regulatory Impact Analysis and review by the Office of

Management and Budget). Under section 3(f), the order defines

``significant'' as those actions likely to lead to a rule: (1) Having

an annual effect on the economy of $100 million or more, or adversely

and materially [[Page 22229]] affecting a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities (also

known as ``economically significant''); (2) creating serious

inconsistency or otherwise interfering with an action taken or planned

by another agency; (3) materially altering the budgetary impacts of

entitlements, grants, user fees, or loan programs; or (4) raising novel

legal or policy issues arising out of legal mandates, the President's

priorities, or the principles set forth in this order. Pursuant to the

terms of this order, EPA has determined that this stay would not be

``significant''.

B. Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., EPA is

certifying that a stay of these criteria would not have a significant

impact on a substantial number of small businesses.

C. Paperwork Reduction Act

There are no information collection requirements associated with

this administrative stay covered under the provisions of the Paperwork

Reduction Act of 1980, 44 U.S.C. 3501 et seq.

List of Subjects in 40 CFR Part 131

Environmental protection, Water pollution control, Water quality

standards, Toxic pollutants.

.Dated: April 14, 1995.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, part 131 of title 40 of

the Code of Federal Regulations is amended as follows:

PART 131--[AMENDED]

1. The authority citation for part 131 continues to read as

follows:

Authority: 33 U.S.C. 1251 et seq.

2. Part 131 is amended by adding at the end of Sec. 131.36(b)(1)

the following ``Note to paragraph (b)(1)'':

Sec. 131.36 Toxics criteria for those States not complying with Clean

Water Act Section 303(c)(2)(B).

* * * * *

(b)(1) * * *

Note to paragraph (b)(1): On April 14, 1995, the Environmental

Protection Agency issued a stay of certain criteria in paragraph (b)(1)

of this section as follows: the criteria in columns B and C for

arsenic, cadmium, chromium (VI), copper, lead, nickel, silver, and

zinc; the criteria in B1 and C1 for mercury; the criteria in column B

for chromium (III); and the criteria in column C for selenium. The stay

remains in effect until further notice.

[FR Doc. 95-10147 Filed 5-3-95; 8:45 am]

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