                        ENVIRONMENTAL PROTECTION AGENCY
                                40 CFR Part 131
                          [EPA-HQ-OW-2012-0095; FRL-] 
                                 RIN 2040-AF33
                                       
Response-to-Comments for Water Quality Standards; Withdrawal of Certain Federal Water Quality Criteria 
             Applicable to California, New Jersey and Puerto Rico

SUMMARY:  On April 5, 2012 the Environmental Protection Agency (EPA) issued a Notice of Proposed Rulemaking to amend the federal regulations to withdraw certain human health and aquatic life water quality criteria applicable to waters of New Jersey, Puerto Rico, and California's San Francisco Bay.  
In 1992, EPA promulgated the "National Toxics Rule" ("NTR") to establish numeric water quality criteria for 12 states and two Territories, including New Jersey, Puerto Rico and parts of California.  On May 18, 2000, EPA then promulgated a final rule known as the ``California Toxics Rule'' (``CTR'') in order to establish numeric water quality criteria for priority toxic pollutants for the State of California that were not previously in the NTR.   These two states and one territory have now adopted, and EPA has approved, water quality criteria for certain pollutants included in the NTR. Since California, New Jersey, and Puerto Rico now have 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 for these pollutants.  The comments received and the EPA's Response to those comments is listed below.
PUBLIC SUBMISSION
As of: December 04, 2012
Received: April 09, 2012
Status: Posted
Posted: April 10, 2012
Tracking No. 80fec2fc
Comments Due: June 04, 2012
Submission Type: Web
Docket: EPA-HQ-OW-2012-0095
Proposed Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Comment On: EPA-HQ-OW-2012-0095-0001
Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Document: EPA-HQ-OW-2012-0095-0002
Anonymous public comment
	The EPA should not withdraw the federally promulgated water quality criteria for the state of New Jersey because establishing less stringent standards for the listed pollutants is contrary to the purpose and goals of both the CWA and the National Toxics Rule, particularly with regard to protecting human health.
	As laid out in 40 CFR 131.2, the National Toxics Rule (codified in 40 CFR 131.36) was promulgated under §303(c)(2)(B) of the CWA for "the dual purposes of establishing the water quality goals for a specific water body and serve as the regulatory basis for the establishment of water-quality-based treatment controls and strategies beyond the technology-based levels of treatment required by sections 301(b) and 306 of the Act." (emphasis added).
	The phrase "beyond the technology-based levels of treatment" indicates that water quality standards for bodies of water were enacted to improve water quality in addition to the effluent limitations of the CWA, so that both strategies could work in tandem.  Water quality criteria were not produced to replace effluent limitations, but rather, were necessary to reach the goals of the CWA which could not be attained simply through effluent limitations due to the difficulty in regulating point sources.
	All but one of the pollutants to which New Jersey seeks to apply laxer standards are toxic pollutants, as listed under 40 CFR 401.15.  These pollutants are numbered on the list: 22. Copper, 27. Ichloroethylene, 43. Isophrone, 44. Lead, 45. Mercury, 47. Nickel, 59. Tetrachloroethane, and 63. Trichloroethane.  The one pollutant not on the toxic list, gamma-BHC (also called Lindane) is still of serious concern as it was dubbed "moderately toxic" by the World Health Organization in 2005.  
	Looking only at the effluent standards for toxic pollutants clearly shows the will of our Legislature to treat all toxic pollutants with more rigorous standards to carry out the purpose of the CWA: "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."  Toxic pollutants are subject to the most rigorous technology treatment standard for existing sources under the CWA, the "best available technology economically achievable... which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants..."  §301(b)(2)(A).  Since the EPA only is required to consider costs in determining the BAT and does not have to carry out a cost-benefit analysis, weighing costs against the benefits of effluent reduction as it does with the BPT and BCT standards, the choice to apply BAT to toxic pollutants confirms Congress's intent to regard them with heightened caution.
	Since the CWA unambiguously established its goal of treating toxic pollutants more rigorously than conventional pollutants, any regulation promulgated to explicitly further this interest should be read to require states to impose standards at least as stringent as federal standards. Giving states power to regulate their water bodies is a reasonable goal as far as it recognizes the familiarity state agencies have with their geographic area and how that can make them more effective in responding to the specific water quality challenges than the EPA.  This concept, however, should not translate into an allowance for states to pick and choose which federal regulations they wish to implement, particularly in states like NJ that have a troubled history of compliance.
	Given the current problems in NJ's ability to meet water quality criteria for aquatic life, and the fact that NJ exceeds federal phosphorus standards, it is inappropriate to consider lower standards of any kind on water quality.  According to the 2010 Integrated Water Quality Report published by the NJDEP, the number of limited use and impaired waterways in the state grew by 9.8% in the past two years.   The report also stated that the three largest sources of pollution are non-point, stormwater discharges, and combined sewer overflow.  Since all three of these are difficult or impossible to regulate through effluent limitations, it is necessary to maintain stringent quality standards for the surface waters to meet the overall goal of improving water quality nationwide.
	Additionally, as the 2010 report suggests, NJ should not be taken off of NTR because it has been sanctioned in the past for not expanding their water quality monitoring network, indicating that the state is not yet ready to take on the full responsibility of regulating its waters.
	Furthermore, NJ's proposed changes could lead to harmful conditions in the Delaware and Chesapeake bay as water body specific criteria ignores that water moves between water bodies and ultimately ends up in bays that provide water to other states. In this sense, allowing NJ an exemption to the strict federal standards would be inequitable as it could negatively impact other states that are held to higher standards.
      	"The [NJDEP's] goal is for all waters to fully support all uses, except for fish consumption. Non-support of the fish consumption use is caused by unsafe levels of toxic contaminants in fish tissues, which is generally due to legacy pollutants (like PCBs) or air deposition (like mercury), rather than active point source discharges. These types of pollutants generally require national or regional approaches to restore water quality. In New Jersey, non-support of the fish consumption use is addressed through public health advisories rather than pollution control measures." (http://www.state.nj.us/dep/wms/bwqsa/generalinfo.htm)
      
	It is imperative that the standards for the toxic pollutants listed by the NJDEP remain subject to the more protective federal standards.  Consideration of just two of the pollutants, lead and copper, illustrates this point:
	Lead is "a highly toxic metal the agency considers a major public health threat.", according to the EPA. The national Centers for Disease Control considers lead to be the country's number one preventable pediatric health problem.  More than 30 Million Americans are drinking water with lead levels in excess of the Maximum Contaminant Level set by the EPA.  (http://www.pure-earth.com/lead.html)
	The "Action Level" (concentration which, if exceeded, triggers treatment) for copper has also been set at 1.3 ppm because EPA believes, given present technology and resources, this is the lowest level to which water systems can reasonably be required to control this contaminant should it occur in drinking water at their customers home taps. EPA has found copper to potentially cause the following health effects when people are exposed to it at levels above the Action Level. (http://www.freedrinkingwater.com/water-contamination/copper-contaminants-removal-water.htm)
In order to further the goals of both the CWA and the NJDEP, NJ should remain subject to the NTR, and be required to adopt standards at least as stringent as the federal ones.
EPA Response:  

EPA appreciates the comments and to the extent a response is necessary, within the scope of this final rule, are addressed below.
The Clean Water Act tasks the States, Territories and authorized Tribes with adopting designated uses for their surface waters, and in adopting criteria to protect those uses. Federal criteria are being withdrawn  for New Jersey where the state has adopted, and EPA has approved criteria that, while not as stringent as the promulgated criteria, are scientifically defensible, protective of the designated uses and consistent with the Clean Water Act and EPA's implementing regulations at 40 CFR 131.11.  

The following is the list of pollutants (12 criteria) for which New Jersey adopted criteria, and which EPA approved, that are less stringent than the promulgated federal criteria, but that nonetheless meet the requirements of the CWA and EPA's implementing regulations at 40 CFR 131.11 covered in this proposal:

:: Copper (aquatic life -- marine (acute and chronic)).
:: Lead (aquatic life -- freshwater (chronic) and marine water (chronic)).
:: Mercury (aquatic life -- freshwater (chronic) and marine water (chronic)).
:: Nickel (aquatic life -- marine water (chronic)).
:: 1,1 - Dichloroethylene (human health -- organisms only).
:: 1,1,2,2 - Tetrachloroethane (human health -- organisms only).
:: 1,1,2 - Trichloroethane (human health -- organisms only).
:: Isophrone (human health --  organisms only).
:: gamma-BHC (human health -- organisms only).

The following six New Jersey criteria are less stringent than the NTR because they are equal to EPA's most recent 304(a) criteria recommendations:

   * Copper (aquatic life  -  marine (acute and chronic))
   * Mercury (aquatic life  -  freshwater (chronic) and marine water (chronic))
   * Isophrone (human health  -  organisms only)
   * gamma-BHC (human health  -  organisms only)

The following three New Jersey criteria are less stringent than the NTR because New Jersey developed applicable criteria as outlined below:

   * Lead (aquatic life  -  freshwater (chronic) and marine water (chronic)):  New Jersey updated its aquatic freshwater criteria for lead as nonhardness-dependent criteria.  In addition, the State used conversion factors recalculated by the Delaware River Basin Commission for both fresh and marine criteria, which are more stringent than the nationally recommended conversion factors, as well as the national species list and updated toxicity data reviewed and accepted by EPA (Great Lakes Water Quality Initiative, 1991).  



   * Nickel (aquatic life  -  marine water (chronic)): New Jersey adopted saltwater criteria for nickel which were recalculated based upon the most recent peer reviewed saltwater toxicity data available. 

The following three New Jersey criteria are less stringent than the NTR because New Jersey developed applicable criteria following the scientific methodology recommended by EPA, but used toxicity factors recommended by the New Jersey Drinking Water Quality Institute (NJDWQI) rather than the toxicity factors available in IRIS to ensure consistency with the State's Safe Drinking Water Program

   * 1,1-Dichloroethylene (human health  -  organisms only) 
   * 1,1,2,2-Tetrachloroethane (human health  -  organisms only)
   * 1,1,2-Trichloroethane (human health  -  organisms only)

In summary the above-referenced criteria have all been found to be scientifically defensible, protective of the designated uses, and consistent with the Clean Water Act and EPA's implementing regulations at 40 CFR 131.11.   

In terms of the specific concerns raised by the commenter, EPA offers the following:
 
   * In terms of the development of water quality based effluent limitations (WQBELs) for point source discharges, where such limits are found to be required the resultant criteria are used by States to derive these WQBELs in order to protect designated uses.

   * The withdrawal of the federal criteria is not intended to impact the scope of the State's water quality monitoring network.

   * With regard to the protection of Delaware and Chesapeake Bay, New Jersey remains obligated to comply with the requirements of 40 CFR 131.10(b) which states that, "in designating uses of a water body and the appropriate criteria for those uses, the State shall take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters."

   * Finally, with regard to the protection of drinking water, States adopt different sets of water quality criteria for the protection of aquatic life or human health. One of the purposes of this rule is to withdraw the federal aquatic life criteria, not human health criteria, for chronic and acute copper and lead, for fresh and marine waters designated for aquatic life use. The removal of the federal aquatic life criteria will allow New Jersey to implement its adopted and EPA-approved aquatic life criteria for copper and lead, and will not impact any drinking water-based criteria that are already adopted by the State. Therefore, the level of protection currently provided by the State for drinking water will not change with this rulemaking. 



PUBLIC SUBMISSION
As of: December 04, 2012
Received: May 17, 2012
Status: Posted
Posted: May 17, 2012
Tracking No. 81012611
Comments Due: June 04, 2012
Submission Type: Web
Docket: EPA-HQ-OW-2012-0095
Proposed Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Comment On: EPA-HQ-OW-2012-0095-0001
Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Document: EPA-HQ-OW-2012-0095-0027
Anonymous public comment

                             Submitter Information
Government Agency Type: Federal

                                General Comment
HELP ! Our water which falls from the sky onto our neighborhoods, fields and mountains, runs down our gutters and creeks, swells our rivers and cleans and maintains the Sacramento Delta is being 'sold' by folks I don't remember electing ! I know those folks and corporations in southern California need some of our water but they are killing the Delta, an area that supports vast amounts of 'Aquatic nurseries'.  If this was happening in Brazil, ecologist from Davis to 'Frisco would be screaming and signing petitions about how 'We Must Save....', But..because its in our back yard, We say / do nothing. 
As a remedy I suggest we triple the price of our water being shipped via the massive salmon killing pumps. When water is expensive to the mega corporations they will find a more sustainable means to farm the desert!  I personally am willing to pay 25 cents more per melon for wanting my grand kids see a delta I saw when I was young.
EPA Response:

EPA thanks you for your interest in water issues concerning the San Francisco Delta.  Your comment concerns water quantity (water flow) issues in the Delta, while our proposed rule concerns water quality in the Bay, specifically, the aquatic life saltwater cyanide criteria in San Francisco Bay.  EPA is only taking comment on the water quality criteria for cyanide in San Francisco Bay at this time.   However, we appreciate your interest in the Delta, and hope you continue to express your thoughts and concerns on these important matters.

PUBLIC SUBMISSION
As of: December 04, 2012
Received: May 21, 2012
Status: Posted
Posted: May 22, 2012
Tracking No. 81018a68
Comments Due: June 04, 2012
Submission Type: E-mail
Docket: EPA-HQ-OW-2012-0095
Proposed Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Comment On: EPA-HQ-OW-2012-0095-0001
Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Document: EPA-HQ-OW-2012-0095-0028
Comment submitted by Naomi Feger, Division Chief, San Francisco Bay Regional Water Quality Control Board

                             Submitter Information
Submitter's Representative: Barbara Baginska
Organization: San Francisco Bay Water Board
Government Agency Type: State

                                General Comment
See attached file(s)

                                  Attachments
Cover Letter
Comment

May 17, 2012
CWIQs Place no. 718825
U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street, WTR-3
San Francisco, California 94105
Sent via email to ow-docket@epa.gov
Sent via email to Diane Fleck: fleck.diane@epa.gov
Subject: PROPOSED WITHDRAWAL OF CERTAIN FEDERAL WATER QUALITY CRITERIA APPLICABLE TO CALIFORNIA, NEW JERSEY AND PUERTO RICO
Docket No. EPA-HQ-OW-2012-0095
Dear Ms. Fleck:

Please accept these comments into the docket for the withdrawal of the federally
promulgated saltwater aquatic life cyanide criteria for San Francisco Bay, as referenced
above.

The San Francisco Bay Regional Water Quality Control Board (Water Board) is the State of California's regional office with responsibility for enhancing and maintaining the water quality of the San Francisco Estuary. The San Francisco Bay Water Quality Control Plan establishes applicable water quality standards, including beneficial uses and water quality objectives, to protect water quality in the Estuary. The Water Board strives to implement water quality standards that are most relevant and protective of beneficial uses in the Bay.
We fully support the EPA action to amend the federal regulations to withdraw promulgated federal water quality criteria for cyanide applicable to San Francisco Bay and the EPA's approval of the site-specific aquatic life objectives put forward by the Water Board.

In December 2006, the Water Board adopted Resolution (R2-2006-0086) to establish site-specific marine cyanide objectives (acute 9.4 μg/L and chronic 2.9 μg/L) for all segments of San Francisco Bay to replace the existing National Toxics Rule (NTR) acute and chronic objectives of 1 μg/L. The adopted site-specific objectives reflect the relevant aquatic organisms present in the Bay and follow both state and federal guidance and policy guiding development of site-specific objectives. The state Policy for Implementation of Toxics Standards for Inland Surface Waters, Enclosed Bays, and Estuaries of California allows for consideration of site-specific objectives when permit limits based on existing water quality objectives may not be attainable, the current objectives are not appropriate for the water body, and there is no evidence of adverse water quality impacts. All these conditions are met for cyanide in San Francisco Bay. In particular, the NTR water quality criteria are heavily influenced by toxicological data for one species that is not present in San Francisco Bay, and are therefore not fully applicable. Despite the fact that the site-specific objectives are less stringent than the NTR criteria, cyanide data collected in the Bay consistently show concentrations that are well below the NTR objective. Furthermore, cyanide does not persist in natural waters and does not bioaccumulate in biota. We appreciate the opportunity to support the EPA action to update the NTR criteria for cyanide in San Francisco Bay.

If you have any further questions, please contact Barbara Baginska at 510 622-2474, or
via e-mail at bbaginska@waterboards.ca.gov.
Sincerely,
Naomi Feger
Division Chief
EPA Response:
EPA appreciates this letter of support from the State of California's San Francisco Bay Regional Water Quality Control Board.  We look forward to continuing to work with the Board on water quality issues.


PUBLIC SUBMISSION
As of: December 04, 2012
Received: June 04, 2012
Status: Posted
Posted: June 05, 2012
Tracking No. 81031243
Comments Due: June 04, 2012
Submission Type: Web
Docket: EPA-HQ-OW-2012-0095
Proposed Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Comment On: EPA-HQ-OW-2012-0095-0001
Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico
Document: EPA-HQ-OW-2012-0095-0029
Comment submitted by Jill Lipoti, Director, Water Monitoring and Standards, New Jersey Department of Environmental Protection (NJDEP)

                             Submitter Information
Submitter's Representative: Jill Lipoti, Director of Water Monitoring and Standards
Organization: Water Monitoring and Standards, New Jersey Department of Environmental Protection (NJDEP)
Government Agency Type: State
Government Agency: Water Monitoring and Standards, New Jersey Department of Environmental Protection (NJDEP)

                                General Comment
See attached file(s)

                                  Attachments
Comment
June 4, 2012
U.S. Environmental Protection Agency
Mail Code: 28221 T
Water Docket
1200 Pennsylvania Ave., NW
Washington, DC 20460
PO Box 420 (Mail Code 401-041)
401 East State Street
Trenton, New Jersey 08625-0420
Telephone: 609-292-1623
Fax: 609-633-1276
http://www.nj.gov/dep/wms/
Attn: Docket ID No. EPA- HQ-OW-2012-0095
Via email to: OW-Docket@epa.gov
Re: Docket ID No. EPA-HQ-OW-2012-0095
Proposed Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico

The New Jersey Department of Environmental Protection (NJDEP) appreciates the opportunity to comment on the U.S. Environmental Protection Agency's (USEPA), Proposed Withdrawal of Certain Federal Water Quality Criteria Applicable to California, New Jersey and Puerto Rico (Proposed Withdrawal) (66 FR 20585, April 5, 2012). NJDEP is pleased with USEPA's action to withdraw National Toxics Rule (NTR) aquatic life and human health water quality criteria applicable to New Jersey. NJDEP adopted criteria for those pollutants under the NTR through several revisions to the New Jersey Surface Water Quality Standards (N.J.A.C. 7:9B) since 1992. These criteria were approved by the USEP A subsequent to each revision.

USEPA has identified nine pollutants (12 criteria), which New Jersey adopted and USEPA approved, that are less stringent than the Federal promulgated NTR criteria. USEPA has compared NJDEP's current surface water quality criteria with the 1992 NTR criteria to arrive at the conclusion that these criteria are less stringent. However, USEPA has updated several of their criteria since 1992. When compared with the current USEPA National Recommended Water Quality Criteria  http://water.epa.gov/scitech/swguidance/standards/current/index.cfm), only six criteria are less stringent than USEPA's current recommended criteria. The following are comments on the criteria that are less stringent than current USEP A current recommendations.

Lead:
NJDEP has updated aquatic freshwater criteria for Lead in 2002 (34 N.J.R. 537(a); January 22, 2002), as a non-hardness-dependent criteria. In addition, NJDEP used conversion factors recalculated by the Delaware River Basin Commission (DRBC) for both fresh and marine criteria. USEPA approved these criteria on August 16, 2002 and indicated that they are in the process of updating criteria for lead. NJDEP may review its aquatic criteria for lead when USEPA updates its recommendations to determine if NJDEP criteria are still protective using the most recent scientific data.

Nickel:
NJDEP has updated aquatic marine criteria for update in 2006 (38 N.J.R. 4449(a); October 16, 2006) based on newer scientific information because USEPA failed to include its criteria recommendations based on new information. Marine criteria were recalculated using Technical Information Related to Developing a Saltwater Nickel Addendum to the Ambient Water Quality Criteria Document, 2003 (http://www.state.nj .us/dep/wms/bwqsa/support_ docs.htm).
USEPA approved these criteria on December 20, 2006. On April 6, 2010, USEPA, through a letter to Ronald Popowski, USFWS, indicated these criteria are more scientifically-sound and are not likely to adversely affect any applicable federally-listed aquatic or aquatic-dependent species under USFWS jurisdiction.

1,1,2,2-Tetrachloroethane, 1,1,2-Trichloroethane, and 1,1-Dichloroethylene:
NJDEP has updated human health criteria for saline water based upon fish only exposure for 1,1 ,2,2-Tetrachloroethane, 1,1,2- Trichloroethane, and 1,1 - Dichloroethylene in 2006 (38 N.J.R. 4449(a); October 16, 2006).
NJDEP developed these criteria following the scientific methodology recommended by USEPA. However, the NJDEP used toxicity factors recommended by the New Jersey Drinking Water Quality Institute (NJDWQI) rather than the toxicity factors available in IRIS to ensure consistency with our Safe Drinking Water Program. USEPA approved these criteria on December 20, 2006.

As part of the 2009 NJDWQI review, 1,1 ,2,2-Tetrachloroethane, 1,1 ,2-Trichloroethane, and 1, 1-Dichloroethylene, were classified as Suggestive Carcinogens (Possible Human Carcinogens). NJDWQI has reviewed the health effects information and has recommended revisions to these health based criteria. NJDWQI recommendations are: the human health criteria in saline waters for 1,1 ,2,2-Tetrachloroethane should be 14 )ug/L which is equal to the current USEPA recommendation; the human health marine criteria for 1,1,2- Trichloroethane should be 14 )ug/L which will be more stringent than the current US EPA recommendation of 16 ug/L; and the human health marine criteria for 1,1 -Dichloroethylene should be 1,286 ug/L which will be more stringent than the current US EPA recommendation of 1700 ug/L. In accordance with N.J.A.C. 7:9B-1.5(c) 6, once the Maximum Contaminant Levels (MCL)'s for these criteria are revised in the Safe Drinking Water Act Rules, the Department will publish a notice of administrative change in the New Jersey Register to update these criteria in the Surface Water Quality Standards.

I hope that the above comments on the Proposed Withdrawal will assist you in finalizing the document. Feel free to contact Debra Hammond by email at Debra.hammond@dep.state.nj .us or by phone at 609-777-1753 if you have any questions.

Sincerely
Jill Lipoti, Director, Water Monitoring and Standards
NJ Department of Environmental Protection
P.O. Box 420 (Mail Code 401-041)
401 East State Street
Trenton, NJ 08625-0420
EPA Response:
EPA appreciates this letter of support from the State of New Jersey's Department of Environmental Protection (NJDEP).  We look forward to continuing to work with the NJDEP on water quality issues.


