

[Federal Register: July 9, 2007 (Volume 72, Number 130)]
[Rules and Regulations]               
[Page 37109-37115]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09jy07-4]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2007-0467; FRL-8337-2]
RIN NA2040

 
Withdrawal of Federal Marine Aquatic Life Water Quality Criteria 
for Toxic Pollutants Applicable to Washington State

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: EPA is proposing to amend the Federal regulations to withdraw 
its 1992 federally promulgated marine copper and cyanide chronic 
aquatic life water quality criteria for Washington State, thereby 
enabling Washington to implement its current EPA-approved chronic 
numeric criteria for copper and cyanide that cover all marine waters of 
the State.
    In 1992, EPA promulgated Federal regulations establishing water 
quality criteria for priority toxic pollutants for 12 States, including 
Washington, and two Territories that had not fully complied with the 
Clean Water Act (CWA). These regulations are known as the ``National 
Toxics Rule'' or ``NTR.'' On November 18, 1997, Washington adopted 
revised chronic marine aquatic life criteria for copper and cyanide, 
the only two marine aquatic life priority toxic pollutants in the NTR 
applicable to Washington. These revisions included a chronic marine 
aquatic life water quality criterion for copper for all marine waters 
and a chronic site-specific cyanide criterion for the Puget Sound. EPA 
approved these criteria on February 6, 1998. On August 1, 2003, 
Washington adopted revisions to its water quality standards, including 
a chronic marine criterion for cyanide for all marine waters except the 
Puget Sound. EPA approved this criterion on May 23, 2007. Since 
Washington now has marine copper and cyanide chronic aquatic life 
criteria effective under the CWA that EPA has approved as protective of 
Washington's designated uses, EPA is proposing to amend the NTR to 
withdraw the federally promulgated criteria.

DATES: This rule is effective on September 7, 2007 without further 
notice, unless EPA receives adverse comment by August 8, 2007. If EPA 
receives such comment, EPA will publish a timely withdrawal in the 
Federal Register informing the public that this rule, or the relevant 
provisions of this rule, will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2007-0467, by one of the following methods:
     http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
     E-mail: ow-docket@epa.gov.
     Mail to either: Water Docket, USEPA, Mailcode: 2822T, 1200 
Pennsylvania Ave., NW., Washington, DC 20460 or Becky Lindgren, 
Washington Marine Aquatic Life NTR Removal, U.S. EPA, Region 10, OWW-
131, 1200 Sixth Avenue, Seattle, WA 98101, Attention Docket ID No. EPA-
HQ-OW-2007-0467.

[[Page 37110]]

     Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301 
Constitution Ave., NW., Washington, DC, 20004 or Becky Lindgren, 
Washington Marine Aquatic Life NTR Removal, 1200 Sixth Avenue, Seattle, 
WA 98101, Attention Docket ID No. EPA-HQ-OW-2007-0467. Such deliveries 
are only accepted during the Docket's normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2007-
0467. EPA's policy is that all comments received will be included in 
the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information provided, 

unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit information that you consider to 
be CBI or otherwise protected through http://www.regulations.gov or e-mail. 

The http://www.regulations.gov Web site is an ``anonymous access'' system, 

which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an e-
mail comment directly to EPA without going through http://www.regulations.gov 

your e-mail address will be automatically captured and included as part 
of the comment that is placed in the public docket and made available 
on the Internet. If you submit an electronic comment, EPA recommends 
that you include your name and other contact information in the body of 
your comment and with any disk or CD-ROM you submit. 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. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.

    Docket: All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 

information is not publicly available, e.g., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, will be publicly available only in hard copy. 
Publicly available docket materials are available either electronically 
in http://www.regulations.gov or in hard copy at two Docket Facilities. The OW 

Docket Center is open from 8:30 a.m. until 4:30 p.m., Monday through 
Friday, excluding legal holidays. The Docket telephone number is (202) 
566-2426 and the Docket address is OW Docket, EPA West, Room 3334, 1301 
Constitution Avenue, NW., Washington, DC, 20004. The Public Reading 
Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, 
excluding legal holidays. The telephone number for the Public Reading 
Room is (202) 566-1744. Publicly available docket materials are also 
available in hard copy at U.S. EPA, 1200 Sixth Avenue, Seattle, WA 
98101. Docket materials can be accessed from 9 a.m. until 3 p.m., 
Monday through Friday, excluding legal holidays. The telephone number 
is (206) 553-0775.

FOR FURTHER INFORMATION CONTACT: Becky Lindgren, U.S. EPA, Region 10, 
1200 Sixth Avenue, Seattle, WA 98101 (telephone: 206-553-1774 or e-
mail: lindgren.becky@epa.gov) or Claudia Fabiano, U.S. EPA 
Headquarters, Office of Science and Technology, 1200 Pennsylvania 
Avenue, NW., Mail Code 4305T, Washington, DC 20460 (telephone: 202-566-
0446 or e-mail: fabiano.claudia@epa.gov).

SUPPLEMENTARY INFORMATION: This section is organized as follows:

Table of Contents

I. Why Is EPA Using a Direct Final Rule?
II. General Information
    A. What Entities May be Affected by this Action?
    B. What Should I Consider as I Prepare My Comments for EPA?
III. Background
    A. What Are the Applicable Federal Statutory and Regulatory 
Requirements?
    B. Why Is EPA Withdrawing Federal Marine Aquatic Life Water 
Quality Criteria for Toxic Pollutants Applicable to Washington?
    C. What are the Federal Marine Aquatic Life Water Quality 
Criteria for Toxic Pollutants Applicable to Washington that EPA is 
Withdrawing?
IV. Statutory and Executive Order Reviews
    A. Executive Order 12866 (Regulatory Planning and Review)
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132 (Federalism)
    F. Executive Order 13175 (Consultation and Coordination with 
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children from 
Environmental Health Risks and Safety Risks)
    H. Executive Order 13211 (Actions that Significantly Affect 
Energy Supply, Distribution or Use)
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898 (Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations)
    K. Congressional Review Act

I. Why Is EPA Using a Direct Final Rule?

    EPA is publishing this rule without a prior proposed rule because 
the Agency views this action as noncontroversial and anticipates no 
adverse comment. Because the public had the opportunity to comment on 
Washington State's adoption of marine copper and cyanide aquatic life 
criteria, EPA does not anticipate any adverse comments on the 
withdrawal of Washington from the NTR, located at 40 CFR 131.36 (57 FR 
60848), for those criteria. For this reason, EPA is taking this action 
in a direct final rule. However, in the ``Proposed Rules'' section of 
the Federal Register, EPA is publishing a separate notice that will 
serve as a parallel proposed rule to withdraw the same Federal marine 
aquatic life water quality criteria for toxic pollutants applicable to 
Washington in the event that adverse comments are received on all or 
distinct provisions of this direct final rule.
    If EPA receives any adverse comment regarding any or all provisions 
of this direct final rule, the Agency will publish a timely withdrawal 
in the Federal Register informing the public that this direct final 
rule, or the relevant provisions of this direct final rule, will not 
take effect. In that event, EPA would address all public comments in 
any subsequent final rule based on the parallel proposed rule. Any 
provisions of this direct final rule that are not timely withdrawn by 
EPA will become effective on September 7, 2007, notwithstanding adverse 
comment on any other provision. EPA will not institute a second comment 
period on this direct final rule. Any parties interested in commenting 
must do so at this time. For further information about commenting on 
this rule, see the ADDRESSES section of this document.

II. General Information

A. What Entities May Be Affected by This Action?

    This direct final rule, if made final, will withdraw federally 
promulgated marine copper and cyanide aquatic life water quality 
criteria for waters in Washington State. Entities discharging copper or 
cyanide pollutants to the marine surface waters of Washington could be 
affected by this rulemaking since water quality standards are used in 
determining National Pollutant Discharge Elimination System (NPDES) 
permit limits, CWA section 404 dredge and fill permits, and other 
activities requiring CWA section 401 certification.

[[Page 37111]]

Categories and entities that may ultimately be affected include:

------------------------------------------------------------------------
           Category            Examples of potentially affected entities
------------------------------------------------------------------------
Industry.....................  Industries discharging pollutants to
                                surface waters in Washington State.
Municipalities...............  Discharges from publicly-owned facilities
                                such as publicly-owned treatment works
                                and water filtration facilities.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding NPDES-regulated 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 may be affected by this action, you 
should carefully examine today's proposed rule. If you have questions 
regarding the applicability of this action to the particular entity, 
consult the person listed in the preceding FOR FURTHER INFORMATION 
CONTACT section.

B. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of the 

information that you claim to be CBI. For CBI information in a disk or 
CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as 
CBI and then identify electronically within the disk or CD-ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.

III. Background

A. What Are the Applicable Federal Statutory and Regulatory 
Requirements?

    In 1992, EPA promulgated a final rule (known as the ``National 
Toxics Rule'', or ``NTR'') to establish numeric water quality criteria 
for toxic pollutants for 12 States and two Territories (hereinafter 
referred to as ``States'') that had failed to comply fully with section 
303(c)(2)(B) of the Clean Water Act (``CWA'') (57 FR 60848, 60910, 
December 22, 1992). Section 303(c)(2)(B) required States to adopt 
numeric water quality criteria for those priority toxic pollutants for 
which EPA had published recommended water quality criteria pursuant to 
Section 304(a) of the Act. The criteria that EPA promulgated in the NTR 
were based on EPA's then current Section 304(a) recommended water 
quality criteria. The NTR criteria are codified at 40 CFR 131.36 and 
became the applicable water quality criteria in those 14 States for CWA 
purposes on February 5, 1993.
    As described in the preamble to the final NTR, when a State adopts, 
and EPA approves, numeric water quality criteria, thus meeting 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. See 
57 FR 60860. If the State's criteria are no less stringent than the 
promulgated Federal criteria, EPA will withdraw its criteria without 
notice and comment because additional comment on the criteria is 
unnecessary. 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.

B. Why Is EPA Withdrawing Federal Marine Aquatic Life Water Quality 
Criteria for Toxic Pollutants Applicable to Washington?

    On November 18, 1997, Washington adopted revisions to its surface 
water quality standards. Washington adopted a chronic marine aquatic 
life water quality criterion for copper for all marine waters and a 
chronic site-specific cyanide criterion for the Puget Sound. EPA Region 
10 approved these criteria on February 6, 1998, finding that they were 
consistent with the CWA and EPA's implementing regulations at 40 CFR 
part 131. On August 1, 2003, Washington adopted revisions to its water 
quality standards, including a revised chronic cyanide criterion for 
all marine waters except the Puget Sound. EPA Region 10 approved this 
revised criterion on May 23, 2007, finding that it was consistent with 
the CWA and EPA's implementing regulations at 40 CFR part 131. By 
adopting chronic numeric criteria for copper and cyanide that are 
applicable to all marine waters of the State, Washington has complied 
with the requirements of section 303(c)(2)(B) of the CWA, which 
requires that states adopt numeric criteria for toxic pollutants for 
which EPA has published recommended water quality criteria and the 
discharge or presence of which in the affected waters could reasonably 
be expected to interfere with those designated uses adopted by the 
State, as necessary to support such designated uses. This fact, plus 
EPA's approval of Washington's numeric criteria as protective of 
designated uses, makes the federally promulgated criteria no longer 
necessary for compliance with the CWA. Therefore, EPA has determined 
that the federally promulgated criteria are no longer needed and is 
proposing to withdraw the federally promulgated criteria for 
Washington.

C. What Are the Federal Marine Aquatic Life Water Quality Criteria for 
Toxic Pollutants Applicable to Washington That EPA Is Withdrawing?

    In this action, EPA is withdrawing Washington from the NTR for 
those

[[Page 37112]]

marine cyanide and copper chronic criteria that the State has adopted 
and EPA has approved. Table 1 provides a summary of the marine copper 
and cyanide chronic aquatic life values under the NTR, Washington's 
1997 criteria, and EPA's current recommended 304(a) criteria.
1. Chronic Marine Aquatic Life Criterion for Cyanide Applicable to All 
Waters Except Puget Sound
    Washington has adopted, and EPA has approved, a marine aquatic life 
criterion for cyanide of 1 microgram per liter ([mu]g/l) chronic 
applicable to all marine waters except the Puget Sound. This criterion 
is identical to the federally promulgated cyanide criterion in the NTR, 
which is 1 [mu]g/l for the chronic value. This criterion is also 
identical to EPA's Section 304(a) recommended water quality criterion. 
Because Washington's criterion is identical to, i.e., no less stringent 
than, the federally promulgated criterion in the NTR, the Federal 
criterion is no longer necessary for compliance with the CWA, and EPA 
is withdrawing it with this action. See 57 FR 60860.
2. Chronic Marine Aquatic Life Criterion for Cyanide Applicable to 
Puget Sound
    Washington has adopted and EPA has approved a chronic site-specific 
marine aquatic life criterion for cyanide. The chronic site-specific 
cyanide criterion is 2.8 [mu]g/l and is only applicable to the waters 
within the borders of Puget Sound (the waters east of a line from Point 
Roberts to Lawrence Point to Green Point to Deception Pass, and south 
from Deception Pass and of a line from Partridge Point to Point 
Wilson). This value is less stringent than the cyanide value 
promulgated in the NTR and less stringent than the value listed as part 
of EPA's current recommended CWA section 304(a) criteria. Despite this 
fact, EPA worked closely with Washington in developing the chronic 
site-specific cyanide criterion, reviewing the test methodology and 
resulting data, and approved the criterion on February 6, 1998. See EPA 
Region 10 approval of Washington State's site-specific criteria for the 
Puget Sound, February 6, 1998.
    The Federal water quality standards regulation at 40 CFR 131.11 
requires states to adopt water quality criteria protective of 
applicable designated uses. Section 131.11(b)(1) states that states 
should, in adopting criteria, establish numerical values based on 
Section 304(a) Guidance, Section 304(a) Guidance modified to reflect 
site-specific conditions, or other scientifically defensible methods. 
Regarding cyanide, Washington established site-specific chronic numeric 
criterion based on EPA's CWA section 304(a) Guidance modified to 
reflect site-specific conditions in the Puget Sound, which EPA approved 
on February 6, 1998.
    Site-specific criteria, as with all water quality criteria, must be 
based on a sound scientific rationale and ensure protection of the 
applicable designated use. Washington's site-specific marine cyanide 
criterion for Puget Sound was based on modifying EPA's methodology for 
deriving aquatic life criteria by using species found in Puget Sound. 
In developing the site-specific criteria for Puget Sound, Washington 
substituted toxicity information from all species in the Cancer genus 
found within Puget Sound for the toxicity data representing an 
exclusively east coast species of crab (Cancer irroratus). In reviewing 
the methodology utilized by Washington in performing this substitution, 
EPA found that it was scientifically defensible because it used the 
same scientific methodology followed in the development of EPA's own 
section 304(a) recommended chronic criteria for cyanide, and because 
the methodology Washington used in developing the site-specific 
criterion used all the same genus that were recommended in EPA's 
Guidelines for Deriving Numerical National Water Quality Criteria for 
the Protection of Aquatic Organisms and Their Uses (EPA, 1985, PB85-
227049). Therefore, as described in EPA's February 6, 1998 approval 
letter, EPA approved the State's site-specific criterion based on EPA's 
conclusion that these criterion were scientifically defensible, as well 
as protective of aquatic life in the Puget Sound.
    Consequently, Washington now has a chronic marine aquatic life 
water quality criterion for cyanide that meets the requirements of the 
statute and federal regulation. As such, the deficiencies leading to 
EPA's promulgation of this criterion in the NTR for the State have been 
remedied and the federal regulatory provisions applying this criterion 
to the Puget Sound in Washington is no longer needed for compliance 
with the CWA.
3. Chronic Marine Aquatic Life Criterion for Copper Applicable to All 
Waters
    Washington has adopted, and EPA has approved, marine aquatic life 
criterion for copper of 3.1 [mu]g/l chronic. The value promulgated in 
the NTR for the copper chronic criterion is 2.4 [mu]g/l. The Washington 
State criterion for copper is, therefore, less stringent than the value 
promulgated in the NTR. However, Washington's criterion for copper is 
equal to EPA's most recent CWA section 304(a) recommended criterion for 
the protection of aquatic life for copper, which EPA updated in 1995.
    EPA derived the section 304(a) recommended chronic criterion for 
the protection of aquatic life for copper using up-to-date scientific 
information. Under CWA section 304(a), EPA periodically publishes 
updated ambient water quality criteria recommendations to reflect the 
latest data and scientific information about the relationship between 
pollutant concentrations and environmental and human health effects. 
EPA's national recommended water quality criteria serve as guidance to 
states and authorized tribes in adopting water quality standards under 
the CWA. After December 1992, when EPA promulgated a copper criterion 
for Washington as part of the NTR using the Agency's then current 
section 304(a) criteria recommendations, new data on the toxicity of 
copper to aquatic organisms in marine waters became available. Thus, 
EPA updated its national CWA section 304(a) recommended chronic marine 
aquatic life criterion for copper in 1995 to reflect this new 
scientific data. On November 18, 1997, Washington State adopted a 
marine copper aquatic life criterion equivalent to EPA's revised CWA 
section 304(a) recommended marine copper chronic aquatic life criteria. 
Washington did this in order to incorporate the latest scientific 
knowledge into its State water quality standards.
    EPA also relies on its section 304(a) recommended water quality 
criteria when EPA promulgates water quality standards for a State. EPA 
did this in 2000 when it promulgated acute and chronic criteria for 
copper in California. Those water quality standards were based on EPA's 
updated 1995 recommended water quality criteria for copper. See 40 CFR 
131.38.
    As described in EPA's February 6, 1998 approval, Washington State's 
chronic marine aquatic life criterion for copper met the requirements 
of 40 CFR 131.11, which provides that states may adopt criteria based 
on EPA's CWA section 304(a) recommended criteria. Based on the science 
supporting EPA's recommended water quality criteria, EPA concluded that 
Washington's chronic marine aquatic life criterion for copper is 
protective of the applicable aquatic life designated uses. While 
Washington's chronic marine aquatic life criterion for copper is less 
stringent than the corresponding value in the NTR, in its February 6, 
1998 approval, EPA concluded that Washington's

[[Page 37113]]

chronic marine aquatic life water quality criterion for copper is 
protective of Washington's designated uses and meets the requirements 
of the CWA and federal regulation. As such, the deficiencies leading to 
EPA's promulgation of this criterion in the NTR for the State have been 
remedied and the federal regulatory provisions applying this criterion 
to the Puget Sound in Washington is no longer needed. Therefore, EPA is 
removing Washington from the NTR for chronic marine copper aquatic life 
criterion with this action.

                  Table 1.--Summary of Marine Chronic Copper and Cyanide Aquatic Life Criteria
----------------------------------------------------------------------------------------------------------------
                                                                                                EPA's current
                                                   1992 NTR values        1997 Revised       recommended 304(a)
                   Chemical                      (Chronic ([mu]g/L))    Washington values     criteria (Chronic
                                                                       (Chronic ([mu]g/L))       ([mu]g/L))
----------------------------------------------------------------------------------------------------------------
Copper........................................                   2.4                   3.1                   3.1
Cyanide.......................................                     1                    1*                    1
----------------------------------------------------------------------------------------------------------------
* The Puget Sound site-specific criterion is 2.8 [mu]g/L chronic and is applicable only to waters which are east
  of a line from Point Roberts to Lawrence Point to Green Point to Deception Pass and south from Deception Pass
  and of a line from Partridge Point to Point Wilson (these are the borders of Puget Sound).

IV. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review)

    This action withdraws Federal requirements applicable to Washington 
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.

B. Paperwork Reduction Act

    This action does not impose any new information collection burden 
because it is administratively withdrawing Federal requirements that 
are no longer needed in Washington. It does not include any information 
collection, reporting or recordkeeping requirements. However, the 
Office of Management and Budget (OMB) has previously approved the 
information collection requirements contained in the existing 
regulations 40 CFR part 131 under the provisions of the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB control 
number 2040-0049, EPA ICR number 1530.12. A copy of the OMB approved 
Information Collection Request (ICR) may be obtained from Susan Auby, 
Collection Strategies Division; U.S. Environmental Protection Agency 
(2822T); 1200 Pennsylvania Ave., NW., Washington, DC 20460 or by 
calling (202) 566-1672.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, or disclose or 
provide information to or for a Federal agency. This includes the time 
needed to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, and 
verifying information, processing and maintaining information, and 
disclosing and providing information; adjust the existing ways to 
comply with any previously applicable instructions and requirements; 
train personnel to be able to respond to a collection of information; 
search data sources; complete and review the collection of information; 
and transmit or otherwise disclose the information.
    An agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
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 significant economic impact on a substantial number 
of small entities. Small entities include small businesses, small 
organizations, and small governmental jurisdictions.
    For purposes of assessing the impacts of this action on small 
entities, small entity is defined as: (1) A small business as defined 
by the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (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.
    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.

D. Unfunded Mandates Reform Act

    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 an EPA rule 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 EPA 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 affected small governments to have meaningful and timely 
input in

[[Page 37114]]

the development of EPA regulatory proposals with significant Federal 
intergovernmental mandates, and informing, educating, and advising 
small governments on compliance with the regulatory requirements.
    This 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, this 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.

E. Executive Order 13132 (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.''
    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.

F. Executive Order 13175 (Consultation and Coordination With Indian 
Tribal Governments)

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule imposes no 
regulatory requirements or costs on any Tribal government. It does not 
have substantial direct effects on Tribal governments, 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.

G. Executive Order 13045 (Protection of Children From Environmental 
Health 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.
    This rule is not subject to Executive Order 13045 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.

H. 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.

I. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (NTTAA), Public Law 104-113, 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 rulemaking does not involve technical standards. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

J. Executive Order 12898--Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this rule will not have disproportionately 
high and adverse human health or environmental effects on minority or 
low-income populations because (1) since Washington's criteria apply to 
all marine waters in the State, EPA does not believe that this action 
would disproportionately affect any one group over another, and (2) EPA 
has previously determined, based on the most current science and EPA's 
CWA section 304(a) recommended criteria, that Washington's State-
adopted and EPA-approved criteria are protective of human health and 
aquatic life.

K. 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 September 7, 2007.

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians--lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control.


[[Page 37115]]


    Dated: July 2, 2007.
Stephen L. Johnson,
Administrator.

0
For the reasons set forth in the preamble, 40 CFR part 131 is amended 
as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

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


Sec.  131.36  [Amended]

0
2. Section 131.36 is amended by revising the table in paragraph 
(d)(14)(ii) to read as follows:


Sec.  131.36  Toxic criteria for those states not complying with Clean 
Water Act Section 303(c)(2)(B).

* * * * *
    (d) * * *
    (14) * * *
    (ii) * * *

------------------------------------------------------------------------
          Use  classification                  Applicable criteria
------------------------------------------------------------------------
Fish and Shellfish; Fish...............  These classifications are
                                          assigned the criteria in:
                                          Column D2--all.
Water Supply (domestic)................  These classifications are
                                          assigned the criteria in:
                                          Column D1--all.
Recreation.............................  This classification is assigned
                                          the criteria in: Column D2--
                                          Marine waters and freshwaters
                                          not protected for domestic
                                          water supply.
------------------------------------------------------------------------

* * * * *
[FR Doc. E7-13207 Filed 7-6-07; 8:45 am]

BILLING CODE 6560-50-P
