58420 proposed rules - us epafederal register / vol. 56, no. 223 / tuesday, november 19, 1991 /...

Federal Register / Vol. 56, No. 223 / Tuesday, November 19, 1991 / Proposed Rules

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Part 131

[WH-FRL-4029-2]

Amendments to the Water QualityStandards Regulation To Establish theNumeric Criteria for Priority ToxicPollutants Necessary to Bring AllStates Into Compliance With Section303(c)(2)(B)

AGENCY: Environmental ProtectionAgency.ACTION: Proposed rule.

SUMMARY: This proposed rulemakingwould promulgate the chemical-specific,numeric criteria for priority toxicpollutants necessary to bring all Statesinto compliance with the requirementsof section 303(c)(2)(B) of the CleanWater Act (CWA). States which havebeen determined by EPA to fully complywith section 303(c)(2)(B) requirementswould not be affected by today'sproposed rulemaking.

The proposed rulemaking addressesseveral situations. For a few States EPAwould promulgate only a limited numberof criteria because the Agencypreviously identified, in disapprovalletters to such States, the specificpriority toxic pollutants that require newor revised criteria. For these States, EPAwould promulgate Federal criteria onlyfor the priority toxic pollutants whichrequire new or revised criteria. In thevast majority of States, EPA wouldpromulgate, at a minimum, broadlyapplicable Federal criteria for allpriority toxic pollutants for which EPAhas issued section 304(a) water qualitycriteria guidance and that are not thesubject of approved State criteria.

For those priority toxic pollutantsincluded in today's proposed rulemakingwhere the section 304(a) criteriarecommendation is based oncarcinogenicity, the proposed criteriaare based on an incremental one in onemillion cancer risk level (i.e., 10-).

The primary focus of this rule is theinclusion of the water quality criteria forpollutant(s) in State standards asnecessary to support water quality-based control programs. The Agency isaccepting comment on the criteriaproposed in today's rule. However,Congress has established a veryambitious schedule for the promulgationof the final criteria. The statutorydeadline in section 303(c)(4) clearlyindicates that Congress intended theAgency to move very expeditiouslywhen Federal action is warranted. TheAgency believes that the limited timeavailable for promulgation of the

regulation can be used most efficientlyand effectively by addressing thoseissues that have not already comebefore the Agency.DATES: All written comments receivedon or before December 19, 1991, will beconsidered in the preparation of anyfinal rulemaking.

A public hearing will be held onDecember 19, 1991, in Washington, DC,beginning at 9 a.m. The hearing officerreserves the right to limit oral testimonyto 10 minutes, if necessary.

ADDRESSES: Comments, inquadruplicate, on this proposed ruleshould be addressed to William R.Diamond, Director, Standards andApplied Science Division (WH-585),Office of Science and Technology, 401 MStreet, SW., Washington, DC 20460(Telephone: 202-260-1315). The publicmay inspect the administrative recordfor this rulemaking, includingdocumentation supporting the aquaticlife and human health criteria, and allcomments received on this proposedrule at EPA's Public InformationReference Unit, EPA Library, room 2904,Waterside Mall, 401 M Street, SW.,Washington, DC 20460 (Telephone: 202-260-5926) on weekdays during theAgency's normal business hours of 8a.m. to 4:30 p.m. Each of EPA's tenRegional offices will also have copiesfor public inspection and copying of theadministrative records for the States inthat Region. These records will beavailable in the Water ManagementDivisions of each respective Regionaloffice. A reasonable fee will be chargedfor photocopies.

The public hearing will be held in theEPA auditorium, '401 M Street, SW.,Washington, DC.FOR FURTHER INFORMATION CONTACT:David K. Sabock or R. Kent Ballentine,Telephone 202-260-1315.

SUPPLEMENTARY INFORMATION:This preamble is organized according

to the following outline:

A. Introduction and Overview1. Introduction2. Overview

B. Statutory and Regulatory Background1. Pre-Water Quality Act Amendments of

1987 (P.L. 100-4)2. The Water Quality Act Amendments of

1987 (P.L. 100-4)a. Description of the New Requirementsb. EPA's Initial Implementing Actions for

Sections 303(c) and 304(l)3. EPA's Program Guidance for Section

303(c)2](B]4. Revisions to the Water Quality

Standards Regulation to Incorporate theRequirements of Section 303(c)(2](B)

C. State Actions Pursuant to Section303(c)(2)(B)

D. Determining State Compliance WithSection 303(c)(2)(B)

1. EPA's Review of State Water QualityStandards for Toxics

2. Determining Current Compliance StatusE. Rationale and Approach for Developing

Today's Proposed Rulemaking1. Legal Basis2. Approach for Developing Today's

Proposed Rulemaking3. Approach for States That Fully Comply

Subsequent to Issuance of Today'sProposed Rulemaking

F. Derivation of Proposed Criteria1. Section 304(a) Criteria Process2. Aquatic Life Criteria3. Criteria for Human Health4. Section 304(a) Human Health Criteria

Excluded5. Cancer Risk Level Proposed6. Applying EPA's Nationally Derived

Criteria to State WatersC. Description of the Proposed Rule

1. Scope2. EPA Criteria for Priority Toxic Pollutants3. Applicability

H. Specific Issues for Public CommentI. Executive Order 12291J. Regulatory Flexibility ActK. Paperwork Reduction Act

A. Introduction and Overview

1. Introduction

. This section of the preambleintroduces the topics which areaddressed subsequently and provides abrief overview of EPA's basis andrationale for proposing to promulgateFederal criteria for priority toxicpollutants. Section B of this preamblepresents a description of the evolutionof the Federal Government's efforts tocontrol toxic pollutants beginning with adiscussion of the authorities in theFederal Water Pollution Control ActAmendments of 1972. Also described insome detail is the development of thewater quality standards review andrevision process which provides forestablishing both narrative goals andenforceable numeric requirements forcontrolling toxic pollutants. Thisdiscussion includes the recent changesenacted in the 1987 Clean Water ActAmendments which are the basis forthis proposed rulemaking. Section Csummarizes State efforts since 1987 tocomply with the requirements of Section303(c)(2)(B). Section D describes EPA'sprocedure for determining whether aState has fully complied with Section303(c)(2)(B). Section E sets out therationale and approach for developingtoday's proposed rulemaking, includinga discussion of EPA's legal basis.Section F describes the development ofthe criteria included in today's proposedrulemaking. Section G summarizes theprovisions of the proposed rule andSection 1-1 highlights certain issues

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raised by the proposal for publiccomment. Sections 1, J, and K addressthe requirements of Executive Order12291, the Regulatory Flexibility Act.and the Paperwork Reduction Act,respectively. Section L provides a list ofsubjects covered in today's proposedrulemaking.

2. Overview

Today's proposed rulemaking toestablish Federal toxics criteria forStates is important for a number ofenvironmental, programmatic and legalreasons.

First, control of toxic pollutants insurface waters is an important priorityto achieve the Clean Water Act's goalsand objectives. The most recentNational Water Quality Inventoryindicates that one-third of monitoredriver miles, lake acres, and coastalwaters have elevated levels of toxics.Forty-seven States and Territories havereported elevated levels of toxicpollutants in fish tissues. States haveissued a total of 586 fishing advisoriesand 135 bans, attributed mostly toindustrial discharges and land disposal.

The absence of State water qualitystandards for toxic pollutantsundermines EPA's overall toxic controlefforts to address these problems.Without clearly established waterquality goals, the effectiveness of manyof EPA's water programs is jeopardized.Permitting, enforcement, coastal waterquality improvement, fish tissue qualityprotection, certain nonpoint sourcecontrols, drinking water qualityprotection, and ecological protection alldepend to a significant extent oncomplete and adequate water qualitystandards. Numeric criteria for toxicsare essential to the process ofcontrolling toxics because they allowStates and EPA to evaluate theadequacy of existing and potentialcontrol measures to protect aquaticecosystems and human health. Formallyadopted standards form the legal basisfor including water quality-basedeffluent limitations in NPDES permits tocontrol toxic pollutant discharges. Thecritical importance of controlling toxicpollutants has been recognized byCongress and is reflected, in part, by theaddition of section 303(c)(2)(B} to theAct. Congressional impatience with thepace of State toxics control programs iswell documented in the legislativehistory of the 1987 CWA amendments.In order to protect human health,aquatic ecosystems, and successfullyimplement toxics controls, EPA believesthat all actions which are available tothe Agency must be taken to ensure thatall necessary numeric criteria for

priority toxic pollutants are establishedin a timely manner.

Second. as States and EPA continuethe transition from an era of primarilytechnology-based controls to an era inwhich technology-based controls areintegrated with water quality-basedcontrols, it is important that EPAensures timely compliance with CWArequirements. An active Federal role isessential to assist States in getting inplace complete toxics criteria as part oftheir pollution control programs. Whilemost States recognize the need forenforceable water quality standards fortoxic pollutants, their recent adoptionefforts have often been stymied by avariety of factors including limitedresources, competing environmentalpriorities, and difficult scientific, policyand legal challenges. Although manywater quality criteria for toxic pollutantshave been available since 1980 and thewater quality standards regulation hasrequired State adoption of numericcriteria for toxic pollutants since 1983(see 40 CFR 131.11), a preliminaryassessment of the water qualitystandards for all States in February of1990 showed that only six States hadestablished fully acceptable criteria fortoxic pollutants. This rate of toxicscriteria adoption is contrary to the CWArequirements and is a reflection of thedifficulties faced by States. EPA shouldexercise its CWA authorities to assistStates in such circumstances.

EPA's proposed action will also helprestore equity among the States. TheCWA is designed to ensure all watersare sufficiently clean to protect publichealth and the environment. The CWAallows some flexibility and differencesamong States in their adopted andapproved water quality standards, but itwas not designed to reward inactionand inability to meet statutoryrequirements.

Although most States have madesome progress toward satisfying CWArequirements, many appear to havefailed to fully comply with section303(c)(2)(B). The CWA assigns EPA thelegal responsibility to promulgatestandards where necessary to meet therequirements of the Act. Where Stateshave not satisfied the CWA requirementto adopt water quality standards fortoxic pollutants, which was re-emphasized by Congress in 1987, it isimperative that EPA take action.

EPA's ability to oversee Statestandards-setting activities and tocorrect deficiencies in State waterquality standards is critical to theeffective implementation of section303(c)(2)(B). This proposed rulemaking isa necessary and important component of

EPA's implementation of section303(c)(2)(B) as well as EPA's overallefforts to control toxic pollutants insurface waters.

B. Statutory and Regulatory Background

1. Pre-Water Quality Act Amendmentsof 1987 (Pub. L. 100-4)

Section 303(c) of the 1972 FederalWater Pollution Control ActAmendments (FWPCA) (33 U.S.C.1313(c)) established the statutory basisfor the current water quality standardsprogram. It completed the transitionfrom the previously established programof water quality standards for interstatewaters to one requiring standards for allsurface waters of the United States.

Although the major innovation of the1972 FWPCA was technology-basedcontrols, Congress maintained theconcept of water quality standards bothas a mechanism to establish goals forthe Nation's waters and as a regulatoryrequirement when standardizedtechnology controls for point sourcedischarges and/or nonpoint sourcecontrols were inadequate. In recentyears these so-called water quality-based controls have received newemphasis by Congress and EPA in thecontinuing quest to enhance andmaintain water quality to protect thepublic health and welfare.

Briefly stated, the key elements ofsection 303(c) are:

(a) A water quality standard isdefined as the designated beneficialuses of a water segment and the waterquality criteria necessary to supportthose uses;

(b) The minimum beneficial uses to beconsidered by States in establishingwater quality standards are specified aspublic water supplies, propagation offish and wildlife, recreation, agriculturaluses, industrial uses and navigation;

(c) A requirement that State standardsmust protect public health or welfare,enhance the quality of water and servethe purposes of the Clean Water Act;

(d) A requirement that States mustreview their standards at least onceeach three year period using a processthat includes public participation;

(e) The process for EPA review ofState standards which may ultimatelyresult in the promulgation of asuperseding Federal rule in cases wherea State's standards are not consistentwith the applicable requirements of theCWA, or in situations where the Agencydetermines Federal standards arenecessary to meet the requirements ofthe Act.

Another major innovation in the 1972FWPCA was the establishment of the

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Natioial Polliutant DischargeElininalion System (NPDES) whichrequires point source dischargers toobtain a permit before legallydischarging to the waters of the UnitedStates. In addition to the permit limitsestablished on the basis of technology(e.g. effluent limitations guidelines), theAct requires dischargers to meetinstream water quality standards. (Seesection 301 (b)(1](C), 33 U.S.C.1311(b)(1)(C)).

Thus water quality standards serve adual function under the Clean WaterAct regulatory scheme. Standardsestablish narrative and numericdefinitions and quantification of theAct's goals and policies (see section 101,33 U.S.C. 1251) which provide a basis foridcntifying impaired waters. Waterquality standards also establishregulatory requirements which aretranslated into specific dischargerequirements. In order to fulfill thiscritical function, adopted State criteriamust contain sufficient parametriccoverage to protect both human healthand aquatic life.

In its initial efforts to control toxicpollutants, the FWPCA, pursuant tosection 307. required EPA to designate alist of toxic pollutants and to establishtoxic pollutant effluent standards basedon a formal rulemaking record. Suchrulemaking required formal hearings,including cross-examination ofwitnesses. EPA struggled with thisunwieldy process and ultimatelypromulgated effluent standards for sixtoxic pollutants, pollutant families ormixtures. (See 40 CFR part 129.)Congress amended section 307 in the1977 Clean Water Act Amendments byendorsing the Agency's alternativeprocedure of regulating toxic pollutantsby use of effluent limitationguidelines,by amending the procedure forestablishing toxic pollutant effluentstandards to provide for more flexibilityin the hearing process for establishing arecord, and by directing the Agency toinclude sixty-five specific pollutants orclasses of pollutants on the toxicpollutant list. EPA published therequired list on January 31, 1978 (43 FR4109). This toxic pollutant list was thebasis on which EPA's efforts on criteriadevelopment for toxics was focused.

During planning efforts to developeffluent limitation guidelines and waterquality criteria, the list of sixty-fivetoxic pollutants was judged too broad assome of the pollutants were, in fact,general families or classes of organiccompounds consisting of manyindividual chemicals. EPA 3elected keychemicals of concern within the 65families of pollutants and identified a

more specific list of 129 priority toxicpollutants. Three volatile chemicalswere removed from the list (see 46 FR2266, January 8, 1981; 46 FR 10723,February 4, 1981) so that at present thereare 126 priority toxic pollutants. This listis published as Appendix A to 40 CFRpart 423.

Another critical section of the 1972FWPCA was section 304(a) (33 U.S.C.1314(a)). Section 304(a)(1) provides, inpertinent part, that EPA* . * shall develop and publishcriteria for water quality accurately reflectingthe latest scientific knowledge (A) on thekind and extent of all identifiable effects onhealth and welfare including, but not limitedto, plankton, fish, shellfish, wildlife, plant life,shorelines, beaches, esthetics, and recreationwhich may be expected from the presence ofpollutants in any body of water, * * * and(C) on the effects of pollutants on biologicalcommunity diversity, productivity, andstability, * * *

In order to avoid confusion, it must berecognized that the Clean Water Actuses the term "criteria" in two separateways. In section 303(c), which isdiscussed above, the term is part of thedefinition of a water quality standard.That is, a water quality standard iscomprised of designated uses and thecriteria necessary to protect those uses.Thus, States are required to adoptregulations or statutes which containlegally achievable criteria. However, insection 304(a), the term criteria is usedin a scientific sense and EPA developsrecommendations which States considerin adopting regulatory criteria.

In response to this legislative mandateand an earlier similar statutoryrequirement, EPA and a predecessoragency have produced a series of waterquality criteria documents. EarlyFederal efforts were Water QualityCriteria (1968 "Green Book") andQuality Criteria for Water (1976 "RedBook"). EPA also sponsored a contracteffort with the National Academy ofScience-National Academy ofEngineering which resulted in WaterQuality Criteria, 1972 (1973 "BlueBook"). These early efforts werepremised on the use of literaturereviews and the collective scientificjudgment of Agency and advisorypanels. However, when faced with thelist of 65 toxic pollutants and the need todevelop criteria for human health aswell as aquatic life, the Agencydetermined that new procedures werenecessary. Continued reliance solely onexisting scientific literature was nowinadequate, since for many pollutantsessential information was not available.EPA scientists developed formalmethodologies for establishingscientifically defensible criteria. These

were subjected to review by theAgency's Science Advisory Board andthe public. This effort culminated onNovember 28, 1980, when the Agencypublished criteria developmentguidelines for aquatic life and for humanhealth, along with criteria for 64 toxicpollutants. (See 45 FR 79318.) Since thatinitial publication, the aquatic lifemethodology was slightly amended (50FR 30784, July 29, 1985) and additionalcriteria were proposed for publiccomment and finalized as Agencycriteria guidance. EPA summarized theavailable criteria information in QualityCriteria for Water 1986 (1986 "GoldBook") which is updated from time-to-time. However, the individual criteriadocuments, as updated, are the officialguidance documents.

EPA's criteria documents provide acomprehensive toxicological evaluationof each chemical. For toxic pollutants,the documents tabulate the relevantacute and chronic toxicity informationfor aquatic life and derive the criteriamaximum concentrations (acute criteria)and criteria continuous concentrations(chronic criteria) which the Agencyrecommends to protect aquatic liferesources. For human health criteria, thedocument provides the appropriatereference doses, and if appropriate thecarcinogenic slope factors, and derives.recommended criteria. The details ofthis process are described more fully ina following part of this preamble.

Programmatically, EPA's initial effortswere aimed at converting a programfocused on interstate waters into oneaddressing all interstate and intrastatesurface waters of the United States.Guidance was aimed at the inclusion oftraditional water quality parameters toprotect aquatic life (e.g., pH,temperature, dissolved oxygen and anarrative "free from toxicity" provision),recreation (e.g., bacteriological criteria)and general aesthetics (e.g., narrative"free from nuisance" provisions). EPAalso required State adoption of anantidegradation policy to maintainexisting high quality or ecologicallyunique waters as well as maintainimprovements in water quality as theyoccur.

The initial water quality standardsregulation was actually a part of EPA'swater quality management regulationsimplementing section 303(e) (33 U.S.C.1313(e)) of the Act. It was notcomprehensive and did not addresstoxics or any other criteria specifically.Rather, it simply required States toadopt appropriate water quality criterianecessary to support designaied uses.(See-40 CFR 130.17 as promulgated in 40FR 55334, November 28, 1975).

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After several years of effort and facedwith increasing public andCongressional concerns about toxicpollutants, EPA realized that proceedingunder section 307 of the Act would notcomprehensively address in a timelymanner the control of toxics througheither toxic pollutant effluent standardsor effluent limitations guidelinesbecause these controls are onlyapplicable to specific types ofdischarges. EPA sought a broader, moregenerally applicable mechanism anddecided to vigorously pursue thealternative approach of EPA issuance ofscientific water quality criteriadocuments which States could use toadopt enforceable water qualitystandards. These in turn could be usedas the basis for establishing State andEPA permit discharge limits pursuant tosection 301(b)(1)(C) which requiresNPDES permits to contain

' * * any more stringent limitation, includingthose necessary to meet water qualitystandards * *, or required to implementany applicable water quality standardestablished pursuant to this Act.

Thus, the adoption by States ofappropriate toxics criteria applicable totheir surface waters, such as thoserecommended by EPA in its criteriadocuments, would be translated byregulatory agencies into point sourcepermit limits. Through the use of waterquality standards, all discharges oftoxics are subject to permit limits andnot just those discharged by particularindustrial categories. In order tofacilitate this process, the Agencyamended the water quality standardsregulation to explicitly address toxiccriteria requirements in State standards,The culmination of this effort was thepromulgation of the present waterquality standards regulation onNovember 8, 1983 (40 CFR part 131, 48FR 51400).

The current water quality standardsregulation (40 CFR part 131) is muchmore comprehensive than itspredecessor. The regulation addresses indetail both the beneficial use componentand the criteria component of a water.quality standard. Section 131.11 of theregulation requires States to reviewavailable information and," * * to identify specific water bodies wheretoxic pollutants may be adversely affectingwater quality or the attainment of thedesignated water use or where the levels oftoxic pollutants are at a level to warrantconcern and must adopt criteria for suchtoxic pollutants applicable to the water bodysufficient to protect the designated use.

The regulation provided that either orboth numeric and narrative criteria may

be appropriately used in water qualitystandards.

EPA's water quality standardsemphasis since the early 1980's reflectedthe increasing importance placed oncontrolling toxic pollutants. States werestrongly encouraged to adopt criteria intheir standards for the priority toxicpollutants, especially where EPA hadpublished criteria guidance underSection 304(a) of the Act.

Under the statutory scheme, duringthe 3-year triennial review periodfollowing EPA's 1980 publication ofwater quality criteria for the protectionof human health and aquatic life, Statesshould have reviewed those criteria andadopted standards for many prioritytoxic pollutants. In fact, State responseto EPA's criteria publication and toxicsinitiative was disappointing. A fewStates adopted large numbers ofnumeric toxics criteria, althoughprimarily for the protection of aquaticlife. Most other States adopted few or nowater quality criteria for priority toxicpollutants. Some relied on a narrative"free from toxicity" criterion, and so-called "action levels" for toxicpollutants or occasionally calculatedsite-specific criteria. Few Statesaddressed the protection of humanhealth by adopting numeric humanhealth criteria.

In support of the November, 1983,water quality standards rulemaking,EPA issued program guidance entitled,Water Quality Standards Handbook(December 1983) simultaneously withthe publication of the final rule. Theforeword to that guidance noted EPA'stwo-fold water quality based approachto controlling toxics: chemical specificnumeric criteria and biological testing inwhole effluents or ambient waters tocomply with narrative "no toxics intoxic amounts" standards. Moredetailed programmatic guidance on theapplication of biological testing wasprovided in the Technical SupportDocument for Water Quality BasedToxics Control (TSD) (EPA 440/4-85-032, September 1985). This documentprovided the needed information toconvert chemical specific andbiologically based criteria into waterquality standards for ambient receivingwaters and permit limits for dischargesto those waters. The TSD focused on theuse of bioassay testing of effluents (so-called whole effluent testing or WETmethods) to develop effluent limitationswithin discharge permits. Such effluentlimits were designed to implement the"free from toxicity" narrative standardsin State water quality standards. TheTSD also focused on water qualitystandards. Procedures and policy werepresented for appropriate design flows

for EPA's section 304(a) acute andchronic criteria. EPA revised the TSD.(Technical Support Document for WaterQuality-based Toxics Control, EPA 505/2-90-001, March 1991.) A Notice ofAvailability was published in theFederal Register on April 4, 1991 (56 FR13827). All references in this Preambleare to the revised TSD.

The Water Quality StandardsHandbook and the TSD are examples ofEPA's efforts and assistance that wereintended to help, encourage and supportthe States in adopting appropriate waterquality standards for the protection oftheir waters against the deleteriouseffects of toxic pollutants. In someStates, more and more numeric criteriafor toxics were being included as wellas more aggressive use of the "free fromtoxics" narratives in setting protectiveNPDES permit limits. However, by thetime of Congressional consideration andaction on the CWA reauthorization,most States had adopted few, if any,water quality standards for prioritytoxic pollutants.

State practices of developing case-by-case effluent limits using proceduresthat were not standardized in Stateregulations made it difficult to ascertainwhether such procedures wereconsistently applied. The use ofapproaches to control toxicity that didnot rely on thestatewide adoption ofnumeric criteria for the priority toxicpollutants generated frustration inCongress. Senator Robert Stafford, firstchairman and then ranking minoritymember of the authorizing committee,noted during the Senate debate:

An important problem in this regard is thatfew States have numeric ambient criteria fortoxic pollutants. The lack of ambient criteria(for toxic pollutants) make it impossible tocalculate additional discharge limitations fortoxics * * * It is vitally important that thewater quality standards program operate insuch a way that it supports the objectives ofthe Clean Water Act to restore and maintainthe integrity of the Nation's Waters.(bracketed material added). A LegislativeHistory of the Water Quality Act of 1987(Pub. L. 100-4), Senate Print 100-144, USGPO,November 1988 at page 1324.

Other comments in the legislativehistory similarly note the Congressionalperception that the States were failing toaggressively address toxics and thatEPA was not using its oversight role topush the States to move more quicklyand comprehensively. Thus Congressdeveloped the water quality standardsamendments to the Clean Water Act forreasons similar to those strongly statedduring the Senate debate by a chiefsponsor, Senator John Chaffee,

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A cornerstone of the bill's new toxicpod lition control requirements is the so calledbeyond-BAT program. * * * Adopting thebeyond BAT provisions will assure that EPAcontinues to move forward rapidly on theprogram. * * * If we are going to repair thedamage to those water bodies that havebecome highly degraded as a result of toxicsubstances, we are going to have to moveforward expeditiously on this beyond-BATprogram. The Nation cannot tolerate endlessdelays and negotiations between EPA andStates on this program. Both entities mustmove aggressively in taking the necessarysteps to make this program work within thetime frame established by this Bill * Ibid,at page 1309.

This Congressional impatience withthe pace of State and EPA progress andan appreciation that the lack of Statestandards for toxics undermined theeffectiveness of the entire CWA-basedRcheme, resulted in the 1987 adoption ofstringent new water quality standardprovisions in the Water Quality Actamendments.

2. The Water Quality Act Amendments

of 1987 (Pub.. L 100-4)

a. Description of the New Requirements

The 1987 Amendments to the CleanWater Act added section 303(c)(2)(B)which provides:

Whenever a State reviews waterquality standards pursuant to paragraph(1) of this subsection, or revises oradopts new standards pursuant to thisparagraph, such State shall adoptcriteria for all toxic pollutants listedpursuant to section 307(a)(1) of this Actfor which criteria have been publishedunder section 304(a), the discharge orpresence of which in the affected waterscould reasonably be expected tointerfere with those designated usesadopted by the State, as necessary tosupport such designated uses. Suchcriteria shall be specific numericalcriteria for such toxic pollutants. Wheresuch numerical criteria are notavailable, whenever a State reviewswater quality standards pursuant toparagraph (1). or revises or adopts newstandards pursuant to this paragraph,such State shall adopt criteria based onbiological monitoring or assessmentmethods consistent with informationpublished pursuant to section 304(a)(8).Nothing in this section shall beconstrued to limit or delay the use ofeffluent limitations or other permitconditions based on or involvingbiological monitoring or assessmentmethods or previously adoptednumerical criteria.

b. EPA's Initial Implementing Actionsfor Sections 303(c) and 304(l)

This new requirement to the existingwater quality standards review and

revision process of section 303(c) did notchange the existing procedural or timingprovisions. For example, section303(c)(1) still requires that States reviewtheir water quality standards at leastonce each 3 year period and transmit theresults to EPA for review. EPA'soversight and promulgation authoritiesand statutory schedules in section303(c)(4) were likewise unchanged.Rather, the provision required the Statesto place heavy emphasis on adoptingnumeric chemical-specific criteria fortoxic pollutants (i.e., rather than justnarrative approaches) during the nexttriennial review cycle. As discussed inthe previous section, Congress wasfrustrated that States were not using thenumerous section 304(a) criteria thatEPA had developed, and was continuingto develop, to assist States in controllingthe discharge of priority toxic pollutants.Congress therefore took an usual action;for the first time in the history of theClean Water Act, it explicitly mandatedthat States adopt numeric criteria forspecific toxic pollutants.

In response to this new Congressionalmandate, EPA redoubled its efforts topromote and assist State adoption ofwater quality standards for prioritytoxic pollutants. EPA's efforts includedthe development and issuance ofguidance to the States on acceptableimplementation procedures for severalnew sections of the Act, includingSections 303(c)(2)(B) and 304(1).

The 1987 CWA Amendments addedto, or amended, other CWA sectionsrelated to toxics control. Section 304(1)(33 U.S.C. 1314(1)) was an importantcorollary amendment because itrequired States to take actions toidentify waters adversely affected bytoxic pollutants, particularly thosewaters entirely or substantiallyimpaired by point sources. Section 304(1)entitled "Individual Control Strategiesfor Toxic Pollutants," requires in part,that States identify and list waterbodieswhere the designated uses specified inthe applicable water quality standardscannot reasonably be expected to beachieved because of point sourcedischarge of toxic pollutants. For eachsegment so identified, the State isrequired to develop individual controlstrategies to reduce the discharge oftoxics from point sources so that inconjunction with existing controls onpoint and nonpoint sources, waterquality standards will be attained. Toassist the States in identifying watersunder section 304(1), EPA's guidancelisted a number of potential sources ofavailable data for States to review.States generally assembled data for abroad spectrum of pollutants, includingthe priority toxic pollutants, which could

be useful in complying with sections304(l) and 303(c)(2)(B]. In fact, betweenFebruary 1988 and October 1988, EPAassembled pollutant candidate lists forsection 304(1) which were thentransmitted to each jurisdiction. Thus,each State had a preliminary list ofpollutants that had been identified aspresent in, or discharged to, surfacewaters. Such lists were limited by thequantity and distribution of availableeffluent and ambient monitoring data forpriority toxic pollutants. This listingexercise further emphasized the need forwater quality standards for toxicpollutants. Lack of standards increasedthe difficulty of identifying impairedwaters. On the positive side, the datagathered in support of the 304(1) activityproved helpful in identifying thosepollutants most obviously in need ofwater quality standards.

EPA, in devising guidance for section303(c)(2)(B), attempted to provide themaximum flexibility in its options thatnot only complied with the expressstatutory language but also with theultimate congressional objective: Promptadoption of numeric toxics criteria. EPAbelieved that flexibility was importantso that each State could comply withsection 303(c)2)(B), accommodate itsexisting water quality standardsregulatory approach, and not violate theresource constraints specific to theState. These options are described in thenext Section of this preamble. EPA'sprogram guidance was issued in finalform on December 12, 1988 but was notsubstantially different from earlierdrafts available for review by the States.The availability of the guidance waspublished in a Federal Register notice onJanuary 5, 1989 (54 FR 346).

3. EPA's Program Guidance for Section303(c)(2)(B

EPA's section 303(c)(2)(B) programguidance identified three options thatcould be used by a State to meet therequirement that the State adopt toxicpollutant criteria " * the discharge orpresence of which in the affected waterscould reasonably be expected tointerfere with those designated usesadopted by the State, as necessary tosupport such designated uses."

Option 1. Adopt statewide numericcriteria in State Water QualityStandards for all section 307(a) toxicpollutants for which EPA has developedcriteria guidance, regardless of whetherthe pollutants are known to be present.

This option is the most comprehensiveapproach to satisfy the statutoryrequirements because it would includeall of the priority toxic pollutants torwhich EPA has prepared section 304(a)

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criteria guidance for either or bothaquatic life protection and human healthprotection. In addition to a simpleadoption of EPA's section 304(a)guidance as standards, a State mustselect a risk level for those toxicpollutants which EPA believes arecarcinogens (i.e., that cause, or maycause cancer in humans). EPA alsorecommended that States shouldsupplement this comprehensiveapproach with a water quality standardvariance and/or a site-specific criteriamethodology to provide the opportunityfor flexibility in applying criteria.

Many States found this optionattractive because it ensuredcomprehensive coverage of the prioritytoxic pollutants with scientificallydefensible criteria without the need toconduct a resource-intensive evaluationof the particular segments andpollutants requiring criteria or futureprevalence of priority toxic pollutants intheir waters. It was also determined thisoption would not be more costly todischargers than the other optionsbecause permit limits would only bebased on the regulation of the particulartoxic pollutants in their discharges andnot on the total listing in-the waterquality standards. Thus, actual permitlimits should be the same under any ofthe options.

Option 2. Adopt chemical-specificnumeric criteria for priority toxicpollutants that are the subject of EPAsection 304(a) criteria guidance, wherethe State determines based on availableinformation that the pollutants arepresent or discharged and canreasonably be expected to interfere withdesignated uses.

This option results in the adoption ofnumeric water quality standards forsome subset of those pollutants forwhich EPA has issued section 304(a)criteria guidance based on a review ofcurrent information. To satisfy thisoption, the guidance recommended thatStates use the data gathered during thesection 304(1) water quality assessmentsas a starting point to identify thosewater segments that need water qualitystandards for priority toxic pollutants.That data would be supplemented by aState and public review of other datasources to ensure sufficient breadth ofcoverage to meet the statutory objective.Among the available data to bereviewed were: (1) Ambient watermonitoring data, including those for thewater column, sediment, and aquatic life[e.g., fish tissue data); (2) NPDES permit-applications and permittee self-monitoring reports; (3) effluent guidelinedevelopment documents, many of whichcontain priority toxic pollutant scans: (4)

pesticide and herbicide applicationinformation and other records ofpesticide or herbicide inventories; (5)public water supply source monitoringdata noting pollutants with maximumcontaminant levels (MCLs); and (6) anyother relevant information on toxicpollutants collected by Federal, State,industry, agencies, academic groups, orscientific organizations. EPA alsorecommended that States adopt atranslator provision similar to thatdescribed in Option 3 but applicable toall chemicals causing toxicity, and notjust priority toxic pollutants.

This Option 2 review resulted in aState proposing new or revised waterquality standards and providing anopportunity for public review andcomment on the pollutants, criteria, andwater bodies included. Throughout thisprocess, EPA's Regional Offices wereavailable to assist States by providingadditional guidance and technicalassistance on applying EPA'srecommended criteria to particularsituations in the States.

Option 3. Adopt a procedure to beapplied to a narrative water qualitystandard provision prohibiting toxicityin receiving waters. Such procedureswould be used by the State incalculating derived numeric criteriawhich must be used for all purposesunder section 303(c) of the CWA. At aminimum, such criteria need to bedeveloped for section 307(a) toxicpollutants, as necessary to supportdesignated uses, where these pollutantsare discharged or present in the affectedwaters and could reasonably beexpected to interfere with designateduses.

The combination of a narrativestandard (e.g., "free from toxics in toxicamounts") and an approved translatormechanism as part of a State's waterquality standards satisfies therequirements of section 303(c)(2)(B). Asnoted above, such a procedure is also avaluable supplement to either option 1or 2. There are several regulatory andscientific requirements EPA's guidancespecifies are essential to ensureacceptable scientific quality and fullinvolvement of the public and EPA inthis approach. Briefly stated these are:

e The procedure (i.e., narrativecriterion and translator) must be used tocalculate numeric water quality criteria;

* The State must demonstrate to EPAthat the procedure results in numericcriteria that are sufficiently protective tomeet the goals of the Act;

* The State must provide for fullopportunity for public participationduring the adoption of the procedure;

e The procedure must be formallyadopted as a State rule and bemandatory in application; and

* The procedure must be submittedfor review and approval by EPA as partof the State's water quality standardsregulation.

Several States currently applytranslators that have been approved byEPA. The scientific elements of atranslator are similar to EPA's 304(a)criteria methodologies when applied ona site-specific basis. For example,aquatic criteria are developed using asufficient number and diversity ofaquatic species representative of thebiological assemblage of a particularwater body. Human health criteria focuson determining appropriate exposureconditions (e.g. amount of aquatic lifeconsumed per person per day) ratherthan underlying pollutant toxicity. Theresults of the procedures arescientifically defensible criteria that areprotective for the site's particularconditions. EPA review of translatorprocedures includes an evaluation of thescientific merit of the procedure usingthe Section 304(a) methodolgy as aguide.

Ideally, States adopting option 3translator procedures should prepare apreliminary list of criteria and specifythe waters the criteria apply to at thetime of adoption. Although under option3 the State retains flexibility to derivenew criteria without revising theadopted standards, establishing thispreliminary list of derived criteria at thetime of the triennial review will assistthe public in determining the scope ofthe adopted standards, and help ensurethat the State ultimately complies withthe requirement to establish criteria forall pollutants that can "reasonably beexpected" to interfere with uses. EPAbelieves that States selecting solelyoption 3 should prepare an analysissimilar to that required of option 2States at the time of the triennial review.

EPA's December 1988 guidance alsoaddressed the timing issue for Statecompliance with section 303(c)(2)(B).The statutory directive was clear: AllState standards triennial reviewsinitiated after passage of the Act mustinclude a consideration of numeric toxiccriteria.

The structure of section 303(c) is torequire States to review their waterquality standards at least once eachthree year period. Section 303(c)(2)(B)instructs States to include reviews fortoxics criteria whenever they initiate atriennial review. EPA initially looked atFebruary 4, 1990, the 3-year anniversaryof the 1987 CWA amendments, as aconvenient point to index State

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compliar.ce. The April 1990 FederalRegister notice used this index point forthe preliminary assessment. However,some States were very nearlycompleting their State administrativeprocesses for ongoing reviews when the1987 amendments were enacted andcould not legally amend thoseproceedings to address additional toxicscriteria. Therefore, in the interest offairness, and to provide such States afull 3-year review period, EPA's FY 1990Agency Operating Guidance providedthat "By the end of the FY 88-90triennium, States should have completedadoption of numeric criteria to meet thesection 303(c)(2)(B) requirements." (p.48.) The FY 88-90 triennium ended onSeptember 30, 1990.

Clean Water Act section 303(c) doesnot provide penalties for States that donot complete timely water qualitystandards reviews. In no previous casehas the EPA Administrator found thatState failure to complete a review withinthree years jeopardized the publichealth or welfare to such an extent thatpromulgation of Federal standardspursuant to section 303(c)(4)(B) wasjustified. The pre-1987 CWA nevermandated State adoption of prioritytoxic pollutants or other specific criteria.EPA relied on its water qualitystandards regulation (40 CFR 131.11) andits criteria and program guidance to theStates on appropriate parametriccoverage in State water qualitystandards, including toxic pollutants.However, because of Congressionalconcern exhibited in the legislativehistory for the 1987 Clean Water Actamendments regarding undue delays byStates and EPA, and because Stateshave been explicitly required to adoptnumeric criteria for appropriate prioritytoxic pollutants since 1963, the Agencyin this proposed rulemaking isproceeding pursuant to section303(c)(4)(B] and 40 CFR 131.22(b).4. Revisions to the Water QualityStandards Regulation to Incorporate theRequirements of Section 303(c)(2)(B)

In a rulemaking separate from today'sproposal, EPA intends to proposeamendments to the Water QualityStandards Regulation to incorporate therequirements of section 303(c)(2)(B).EPA views the effects of that intendedrulemaking to be prospective only.EPA's expected regulatory changewould provide principally moreconsistency among the States in their -approaches to adopting appropriatetoxic and other criteria in futuretriennial reviews.

The current requirements for waterquality criteria in State water qualitystandards are addressed in 40 CFR

56, No. 223 / Tuesday, November 19, 1991 / Proposed Rules

131.11. EPA's intended rulemaking willpropose amendments to this section andincorporate the three options describedin its December 12, 1988 guidance. Ofspecial concern are the specificrequirements for the translator provisiondescribed as option 3.

The current regulation at 40 CFR part131 in conjunction with the statutorylanguage provides a clear andunambiguous basis and process fortoday's proposed Federal promulgation.

C. State Actions Pursuant to Section303(c)(2)(B)

There has been substantial progressby many States in the adoption, andEPA approval, of water qualitystandards for toxic pollutants. Forexample, for freshwater aquatic lifeuses, the average number of prioritytoxic pollutants with criteria adoptedhas tripled from ten per State in 1986 tothirty per State on February 4, 1990. Inaddition, the number of States with atleast some aquatic life criteria adoptedhas increased from thirty-three in April1986 to forty-five as of February 4, 1990.

Furthermore, virtually all States haveat least proposed new toxics criteria forpriority toxic pollutants since section303(c}(2)(B} was added to the CWA inFebruary of 1987. Unfortunately, not allsuch State proposals address, in acomprehensive manner, therequirements of section 303(c)(2)(B). Forexample, some States have proposed toadopt criteria to protect aquatic life, butnot human health; other States haveproposed human health criteria whichdo not address major human exposurepathways. In addition, in some casesfinal adoption of proposed State toxicscriteria which would be approvable byEPA has been substantially delayed dueto controversial and difficult issuesassociated with the toxics criteriaadoption process. For purposes oftoday's proposed rulemaking, it is EPA'sjudgment that only 35 States completedactions which fully satisfy therequirements of section 303(c](2)B).

The difficulties faced by States inadopting criteria for priority toxicpollutants are exemplified by recentState efforts to adopt criteria for thepriority toxic pollutant 2,3,7,8-TCDD(dioxin). As is generally true of Statesection 303(c)(2)(B) efforts, State effortsto adopt numeric human htalth dioxincriteria have been slow andcontroversial, but in many respectsimpressive. For example, since 1987, atotal of 34 States have adopted numerichuman health criteria for dioxin whichhave been approved by EPA. In total, 38States have adopted numeric humanhealth criteria for dioxin. Twenty-five ofthese 38 States adopted criteria during

calendar year 1991, showing that thepace of State actions to adopt dioxincriteria has accelerated substantially.

The progress which has been made byStates in adopting dioxin criteria isparticularly impressive in light of thesubstantial attention and controversywhich has been focused on such actions.EPA, States, dischargers, environmentalgroups, and the public at large havebeen involved in discussions concerningthe ambient level of protection that isprotective of public health. In someStates, the struggle to select anappropriate dioxin criterion has beenthe major impediment to successfulcompletion of section 303(c)(2)(B)actions.

At issue are scientific questionsspecific to dioxin, such as determiningthe carcinogenic potency of the pollutantand the extent to which the pollutanttends to accumulate in fish tissues.Other issues are generic to EPA'Shuman health criteria, such asdetermining the rate at which humansconsume fish and other forms of aquaticlife, and the necessity of setting ambientcriteria at levels which may not bedetected by state-of-the-art laboratories.Most of these issues relate, directly orindirectly, to concerns expressed bydischargers regarding the cost ofcomplying with water quality-basedeffluent limits for dioxin which, althoughvariable from State to State, generallyare based on State numeric waterquality criteria that allow only minutequantities of dioxin per liter of water.For example, twelve States haveadopted EPA's recommended ambientwater column concentration of 0.013picograms per liter.

Currently, a total of eleven Stateshave proposed, or are expected topropose, numeric human health-basedcriteria for dioxin. These States couldface the same issues, obstacles, andresource requirements that the 38 Stateswhich previously adopted criteria havefaced.

In summary, States have devotedsubstantial resources, and have madesubstantial progress, in adopting new orrevised numeric criteria for prioritypollutants. In so doing they haveaddressed a number of significant anddifficult issues. These issues and theattendant controversy has accounted, atleast in part, for the fact that 22jurisdictions still have not adoptednumeric toxics criteria that fully complywith section 303(c)(2)(B). For a moredetailed State-specific outline of actionstaken in response to section 303(c)(2)(B),refer to part III of appendix 1, whichitemizes State actions to adopt toxiescriteria for States approved by EPA is

. ... J m ....


being in full compliance as well asStates which EPA has not approved asbeing in full compliance with section303(c)(2)(B).

D. Determining State Compliance WithSection 303(c)(2)(B)

1. EPA's Review of State Water QualityStandards for Toxics

The EPA Administrator has delegatedthe responsibility and authority forreview and approval or disapproval ofall State water quality standards actionsto the 10 EPA Regional Administrators(see 40 CFR 131.21). State section303(c)(2)(B) actions are thus submittedto the appropriate EPA RegionalAdministrator for review and approval.This de-centralized EPA system forState water quality standards reviewand approval is guided by EPAHeadquarter's Office of Water, whichissues national policies and guidance tothe States and Regions such as theannual Office of Water OperatingGuidance and various technicaloperating guidance manuals.

For purposes of evaluating Statecompliance with CWA section303(c)(2)(B}, EPA relied on the languageof section 303(c)(2)(B), the existing waterquality standards regulation, andsection 303(c)(2)(B) national guidance toprovide the basis for EPA review. Insome cases, individual Regions alsoused Regional policies and proceduresin reviewing State section 303(c)(2)(B)actions. The flexibility provided by thenational guidance, coupled with subtledifferences in Regional policies andprocedures, contributed to somedifferences in the approaches taken byStates to satisfy section 303{c}(2)(B)requirements.

As discussed previously, EPA's finalguidance on compliance with section303{c)(2)(B] was developed to provideStates with the necessary flexibility toallow State standards revisions thatwould complement the State's existingwater quality standards program, fullycomply with section 303(c)(2)(B), and notviolate State-specific resourceconstraints. As guidance. it did notcontain clearly defined limits on therange of acceptable approaches, butrather described EPA'srecommendations on approaches Statescould use to satisfy the statutoryrequirements. Some innovative Stateapproaches were expected as well asdifferences in terms of criteria coverage,stringency and application procedures.

Although the guidance provided forState flexibility, it was also consistentwith existing water quality standardsregulation requirements at 40 CFR 131.11that explicitly require State criteria to be

sufficient to protect designated uses.Such water quality criteria also must bebased on sound scientific rationale andsupport the most sensitive usedesignated for a water body.

The most complicated EPAcompliance determinations involveStates that select EPA Options 2 or 3.Since most States use EPA's Section304(a) criteria guidance, where Statesselect Option 1, EPA normally is able tofocus Agency efforts on verifying that allavailable EPA criteria are included,appropriate cancer risk levels areselected, and that sufficient applicationprocedures are in place (e.g. laboratoryanalytical methods, mixing zones, flowcondition, etc.).

However, for States using EPA'sOption 2 or 3, substantially more EPAevaluation and judgment is requiredbecause the Agency must evaluatewhich priority pollutants and, in somecases, segments or designated uses,require numeric criteria. Under theseoptions, the State must adopt or derivenumeric criteria for priority toxicpollutants for which EPA has section304(a) criteria, " * * the discharge orpresence of which in the affected waterscould reasonably be expected tointerfere with those designated usesadopted by the State * * " Thenecessary justification and the ultimatecoverage and acceptability of a State'sactions vary State-to-State because ofdifferences in the adequacy of availablemonitoring information, local waterbodies use designations, the effluent andnonpoint source controls in place, anddifferent approaches to the scientificbasis for criteria.

In submitting criteria for theprotection of human health, States arenot limited to a I in 1 million risk level(10-9. EPA generally regulatespollutants treated as carcinogens in therange of 10- 6 to 10- 4 for averageexposed individuals. If a State selects acriterion that represents an upper boundrisk level less protective than 1 in100,000 (i.e., 10-9, however, the Statewill need to have substantial support inthe record for this level. This supportshould focus on two distinct issues.First, the record must includedocumentation that the decision makerconsidered the public interest of theState in selecting the risk level,including documentation of publicparticipation in the decision makingprocess as required by the water qualitystandards regulation at 40 CFR 131.20(b).Second, the record must include ananalysis showing that the risk levelselected, when combined with other riskassessment variables, is a balanced andreasonable estimate of actual riskposed, based on the best and most

representative information available.The importance of the estimated actualrisk increases as the degree ofconservatism in the selected risk leveldiminishes. EPA will carefully evaluateall assumptions used by a State if theState chooses to alter any one of thestandard EPA assumption values.

Where States select Option 3, EPAreviews must also include an evaluationof the scientific defensibility of thetranslator procedure. EPA must alsoverify that a requirement to apply thetranslator whenever toxics mayreasonably be expected to interfere withdesignated uses (e.g., where such toxicsexist or are discharged) is included inthe State's water quality standards.Satisfactory application proceduresmust also be developed by Statesselecting Option 3.

In general, each EPA Region madecompliance decisions based onwhatever information was available tothe State at the time of the triennialreview. For some States, information onthe presence and discharge of prioritytoxic pollutants is extremely limited.Nevertheless, during the period ofFebruary 1988 to October 1990, tosupplement State efforts, EPAassembled the available informationand provided each State with variouspollutant candidate lists in support ofthe section 304(1) and section303(c)(2)(B) activities. These were basedin part on computerized searches ofexisting Agency data bases.,

Beginning in 1988, EPA providedStates with candidate lists of prioritytoxic pollutants and water bodies insupport of CWA section 304(1)implementation. These lists weredeveloped because States were requiredto evaluate existing and readilyavailable water-related data in order tocomply with section 304(l). 40 CFR130.10(d). A similar "strawman"analysis of priority pollutantspotentially requiring adoption ofnumeric criteria under section303(c)(2)(B} was furnished to most Statesin September or October of 1990 for theiruse in on-going and subsequent triennialreviews. The primary differencesbetween the "strawman" analysis andthe section 304[1) candidate lists werethat the "strawman" analysis: (1)Organized the results by chemical ratherthan by water body, (2) included datafor certain STORET monitoring stationsthat were not used in constructing thecandidate lists, (3) included data fromthe Toxics Release Inventory database,and (4) did not include a number of datasources used in preparing the candidatelists (e.g., those, such as fish kill

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information, that did not providechemical specific information).

In its 1988 section 303(c)(2)(B)guidance, EPA urged States, at aminimum, to use the informationgathered in support of section 304(1)requirements as a starting point foridentifying which priority toxicpollutants require adoption of numericcriteria. EPA also encouraged States toconsider the presence or potentialconstruction of facilities thatmanufacture or use priority toxicpollutants as a strong indication of theneed for toxics criteria. Similarly, EPAindicated to States that the presence ofpriority pollutants in ambient waters(including those in sediments or inaquatic life tissue) or in discharges frompoint or nonpoint sources also beconsidered as an indication that toxicscriteria should be adopted. A limitedamount of data on the effluentcharacteristics of NPDES dischargeswas readily available to States. Stateswere also expected to take into accountnewer information as it becameavailable, such as information in annualreports from the Toxic Chemical ReleaseInventory requirements of theEmergency Planning and CommunityRight-To-Know Act of 1986. (Title III,Pub. L. 99-499.)

In summary, EPA and the States hadaccess to a variety of informationgathered in support of section 304(1),section 303(c)(2)(B), and section 305(b)activities. For some States, as notedabove, such information for prioritytoxic pollutants is extremely limited. Inthe final analysis, the RegionalAdministrator made a judgment on aduly submitted State standards triennialreview based on the State's record andthe Region's independent knowledge ofthe facts and circumstances surroundingthe State's actions. These actions, takenin consultation with the Office of Water,determined which State actions weresufficiently consistent with the coveragecontemplated in the statute to justifyapproval. These approval actionsinclude allowable variations amongState water quality standards. EPAapproval indicates that, based on therecord, the State water qualitystandards met the requirements of theAct.

2. Determining Current ComplianceStatus

The following summarizes the processgenerally followed by the Agency inassessing compliance with section303(c)(2)(B). As with other aspects ofthis rule, EPA invites comments on thecompliance determination process.

A State was determined to be in fullcompliance with the requirements ofsection 303(c)(2)(B) if,

a. The State had submitted a waterquality standards package for EPAreview since enactment of the 1987Clean Water Act amendments or wasdetermined to be already in compliance,and,

b. The adopted State water qualitystandards are effective under State lawand consistent with the CWA and EPA'simplementing regulations (EPA'sDecember 1988 guidance described threeOptions, any one, or a combination ofwhich EPA suggested States could adoptfor compliance with the CWA and EPAregulations), and

c. EPA has issued a formal approvaldetermination to the State.

States meeting these criteria are notincluded in this proposed rulemaking.

States which adopted standardsfollowing Option 1 generally have beenfound to satisfy section 303(c)(2)(B). Anexception exists for selected Stateswhich attempted to follow Option 1 byadopting all EPA section 304(a) criteriaby reference. EPA has withheldapproval for a few States which haveadopted such references into theirstandards because the adoptedstandards did not specify applicationfactors necessary to implement thecriteria (e.g., a risk level forcarcinogens). Other States haveachieved full compliance followingoptions 1, 2, 3, or some combination ofthese options.

As of the date of signature of today'sproposal, the Agency has determinedthat 35 States and Territories are in fullcompliance with the requirements ofsection 303(c)(2)(B). Compliance statusfor all States and Territories is set forthin Table 1.

TABLE 1.-PRELIMINARY ASSESSMENT OFSTATE COMPLIANCE WITH CWA SEC-TION 303(c)(2)(B)

Is State in complianceState with section

303(c)(2)(B)?

Alabam a .............................. Yes.Alaska .................................. N o.Arizona ................................ No.Arkansas ............................. No.California ............................ No.Colorado .............................. No.Connecticut ......................... No.Delaware ............................. Yes.Florida .................................. N o.G eorgia ................................ Yes.H aw aii .................................. No.Idaho .................................... N o.Illinois ................................... Yes.Indiana ................................. e as.Iow a ..................................... Yes.Kansas ................................. No.Kentucky ............................. Yes.

TABLE 1.-PRELIMINARY ASSESSMENT OF

STATE COMPLIANCE WITH CWA SEC-.

TION 303(c)(2)(B)-Continued

Is State in complianceState with section

303(c)(2)(B)?

Louisiana ............................. No.M aine .................................. Yes.M aryland .............................. Yes.Massachusetts .................... Yes.M ichigan .............................. No.Minnesota ............................ Yes.M ississippi ........................... Yes.M issouri ............................... Yes.Montana .............................. Yes.Nebraska ............................. Yes.Nevada ................................ No.New Hampshire .................. No.New Jersey ......................... No.New Mexico ..................... Yes.New York ........................... Yes.North Carolina .................... Yes.North Dakota ...................... Yes.O hio ..................................... Yes.Oklahoma ......................... Yes.O regon ................................. Yes.Pennsylvania ....................... Yes.Rhode Island ...................... No.South Carolina .................... Yes.South Dakota ...................... Yes.Tennessee .......................... Yes.Texas ................................... Yes.U tah ..................................... Yes.Verm ont ............................... No.Virginia ................................. N o.W ashincton ......................... No.W est Virginia ....................... Yes.W isconsin ............................ Yes.W yom ing .............................. Yes.American Samoa ................ Yes.Commonwealth of the No.

Northern MarianasIslands.

District of Columbia ........... No.G uam ................................... Yes.Puerto Rico ......................... No.Tr. Territories ...................... Yes.Virgin Islands ...................... Yes.

Section III of appendix 1 provides aState-by-State summary of howcompliance was achieved for the EPA-approved States, and what has been,and yet needs to be, accomplished inStates included in this proposed rule.

E. Rationale and Approach forDeveloping Today's ProposedRulemaking

The addition of section 303(c)(2)(B) tothe Clean Water Act was anunequivocal signal to the States thatCongress wanted toxics criteria in theState's water quality standards. Thelegislative history notes that the"beyond BAT" program (i.e., controlsnecessary to comply with water qualitystandards that are more stringent thantechnology-based controls) was thecornerstone to the Act's toxic pollutioncontrol requaements.

The major innovation of the 1972Clean Water Act Amendments was theconcept of effluent limitation guidelines

5C42


which were to be incorporated intoNPDFS permits. In many cases, thisstrategy has succeeded in halting thedecline in the quality of the Nation'swaters and, often, has providedimprovements. However, the effluentlimitation guidelines for industrialdischarges and the similar technology-based secondary treatmentrequirements for municipal dischargesare not capable, by themselves, ofensuring that the fishable-swimmablegoals of the Clean Water Act will bemet.

The basic mechanism to accomplishthis in the Act is water qualitystandards. States are required toperiodically review and revise thesestandards to achieve the goals of theAct. In the 1987 CWA amendments,Congress focused on addressing toxicsin several sections of the Act, butspecial attention was placed on thesection 303 water quality standardsprogram requirements. Congressintended that the adoption of numericcriteria for toxics would result in directimprovements in water quality byforcing. where necessary, effluent limitsmore stringent than those resulting fromtechnology-based effluent limitationsguidelines.

As the legislative historydemonstrates, Congress was dissatisfiedwith the piecemeal, slow progress beingmade by States in setting standards fortoxics. Congress reacted by legislatingnew requirements and deadlinesdirecting the States to establish toxicscriteria for pollutants addressed in EPASection 304(a) criteria guidance,especially for those priority toxicpollutants that could reasonably beexpected to interfere with designateduses. In today's action, EPA isexercising its authority under section303(c)(4) to propose criteria whereStates have failed to act in a timelymanner.

For those States not in compliancewith section 303(c)(2)(B] four and one-half years after enactment, EPA nowbegins the process that will culminate inthe promulgation of appropriate toxicscriteria and the determination of thenecessary parametric coverage andstringency of such criteria. While theprevious section of this preambleexplains EPA's approach to evaluatingthe adequacy of State actions inresponse to section 303(c)(2)(B), thissection explains EPA's legal basis forissuing today's proposed rulemaking,discusses EPA's general approach fordeveloping the proposed State-specificrequirements in § 131.36(d).

In addition to the Congressionaldirective and the legal basis for thisproposed action, there are a number of

environmental and programmaticreasons why further delay inestablishing water quality standards fortoxic pollutants is no longer acceptable.

Prompt control of toxic pollutants insurface waters is critical to the successof a number of Clean Water Actprograms and objectives, includingpermitting, enforcement, fish tissuequality protection, coastal water qualityimprovement, sediment contaminationcontrol, certain nonpoint sourcecontrols, pollution prevention planning,and ecological protection. The decade-long delay in State adoption of waterquality standards for toxic pollutantshas had a ripple effect throughout EPA'swater programs. Without clearlyestablished water quality goals, theeffectiveness of many water programs isjeopardized.

Failure to take prompt action at thisjuncture would also undermine thecontinued viability of the currentstatutory scheme to establish standards.Continued delay subverts the entireconcept of the triennial review cyclewhich is to combine current scientificinformation with the results of previousenvironmental control programs todirect continuing progress in enhancingwater quality.

Finally, another reason to proceedexpeditiously is to bring closure to thislong-term effort and allow Stateattention and resources to be directedtowards important, new nationalprogram initiatives. Until standards fortoxic pollutants are in place, neitherEPA nor the States can fully focus onthe emerging, ecologically based waterquality activities such as wetlandscriteria, biological criteria and sedimentcriteria.

1. Legal Basis

Clean Water Act section 303(c]specifies that adoption of water qualitystandards is primarily the responsibilityof the States. However, section 303(c)also describes a role for EPA ofoverseeing State actions to ensurecompliance with CWA requirements. Ifthe Agency's review of the State's

* standards finds flaws or omissions, thenthe Act authorizes EPA to initiatepromulgation to correct the deficiencies(see section 303(c)(4)). The water qualitystandards promulgation authority hasbeen used by EPA to issue final rules onnine separate occasions. These actionshave addressed both insufficientlyprotective State criteria and/ordesignated uses and failure to adoptneeded criteria. Thus, today's action isnot unique, although it would affectmore States and pollutants thanprevious actions taken by the Agency.

The Clean Water Act in section303(c](4) provides two bases forpromulgation of Federal water qualitystandards. The first basis in paragraph(A) applies when a State submits new orrevised standards that EPA determinesare not consistent with the applicablerequirements of the Act. If, after EPA'sdisapproval, the State does not promptlyamend its rules so as to be consistentwith the Act, EPA must promulgateappropriate Federal water qualitystandards for that State. The secondbasis for EPA's action is paragraph (B),which provides that EPA ohall promptlyinitiate promulgation " * * in any casewhere the Administrator determinesthat a revised or new standard isnecessary to meet the requirements ofthis Act." EPA is relying on both section303(c)(4)(A and section 303(c)(4)(B) asthe legal basis for this proposedrulemaking.

Section 303[c)(4](A) supports today'saction for several States. These Stateshave submitted criteria for some numberof priority toxic pollutants and EPA has

' disapproved the State's adoptedstandards. The basis for EPA'sdisapproval generally has been the lackof sufficient criteria or particular criteriathat were insufficiently stringent. Inthese cases, EPA has, by letter to theState, noted the deficiencies andspecified the need for corrective action.(See section III of appendix 1 for asummary description of each State'ssection 303(c)(2)(B) history.) Not havingreceived an appropriate correctionwithin the statutory time frame, EPA istoday proposing the needed criteria. Theaction in today's proposal pursuant tosection 303(c)(4)(A) may differ fromthose taken pursuant to section303(c)(4)(B) by being limited to criteriafor specific priority toxic pollutants,particular geographic areas, orparticular designated uses.

Section 303(c)(4)(B) is the basis forEPA's proposed requirements for mostStates. For these States, theAdministrator proposes criteria thatwould bring the States into compliancewith the requirements of the CWA. Inthese cases, EPA is proposing, at aminimum, criteria for all priority toxicpollutants not addressed by approvedState criteria. EPA is also proposingcriteria for priority toxic pollutantswhere any previously-approved Statecriteria do not reflect current sciencecontained in revised criteria documentsand other guidance sufficient to fullyprotect all designated uses or humanexposure pathways, or where suchpreviously-approved State criteria arenot applicable to all appropriatedesignated uses. EPA's action pursuant

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to section 304(c)(4)(B) may includeseveral situations.

In some cases, the State has failed toadopt and submit for approval anycriteria for those priority toxicpollutants for which EPA has publishedcriteria. This includes those States thathave not submitted triennial reviews. Inother cases, the State has adopted andEPA has approved criteria for eitheraquatic life or human health, but notboth. In yet a third siuation, States havesubmitted some criteria but not allnecessary criteria. Lastly, one State hassubmitted criteria that do not apply toall appropriate geographic sections ofthe waters of the State. (See section IIIof appendix 1.)

The use of section 303(c)(4)(B)requires a determination by theAdministrator " * * that a revised ornew standard is necessary to meet therequirements of * *" the Act. TheAdministrator's determination could besupported in different ways.

One approach would be for EPA toundertake a time-consuming effort toresearch and marshall data todemonstrate the need for promulgationfor each criteria for each streamsegment or waterbody in each State.This would include evidence for eachsection 307(a) priority toxic pollutant forwhich EPA has section 304(a) criteriaand that there is a "discharge orpresence" which could reasonably "beexpected to interfere with" thedesignated use. This approach wouldnot only impose an enormousadministrative burden, but would becontrary to the statutory scheme and thecompelling Congressional directive forswift action reflected in the 1987addition of section 303(c)(2)(B) to theAct.

An approach that is more reasonableand consistent with Congressionalintent focuses on the State's failure tocomplete the timely review andadoption of the necessary standardsrequired by section 303(c)(2)(B) despiteinformation that priority toxic pollutantsmay interfere with designated uses ofthe State's waters. This approach isconsistent with the fact that in enactingsection 303(c)(2)(B) Congress expressedits determination of the necessity forprompt adoption and implementation ofwater quality standards for toxicpollutants. Therefore, a State's failure tomeet this fundamental 303(c)(2)(B)requirement of adopting appropriatestandards constitutes a failure "to meetthe requirements of the Act." Thatfailure to act can be a basis for theAdministrator's determination undersection 303(c)(4)(B) that new or revisedcriteria are necessary to ensuredesignated uses are adequately

protected. Here, this determination isbuttressed by the existence of evidenceof the discharge or presence of prioritytoxic pollutants in a State's waters forwhich the State has not adoptednumeric water quality criteria. TheAgency has compiled an impressivevolume of information in the record forthis rulemaking (See appendix 1) on thedischarge or presence of toxic pollutantsin State waters. This data supports theAdministrators's proposeddetermination pursuant to section303(c)(4)(B).

The Agency's choice to base theproposed determination on the secondapproach is supported by both the elicitlanguage of the statutory provision andby the legislative history. Congressadded subsection 303(c)(2)(B) to section303. with full knowledge of the existingrequirements in section 303(c)(1) fortriennial water quality standards reviewand submission to EPA and in section303(c)(4)(B) for EPA promulgation. Therewas a clear expectation that theseprovisions be used in concert toovercome the programmatic delay thatmany fegislators criticized and achievethe Congressional objective of the rapidavailability of enforceable water qualitystandards for toxic pollutants. Asquoted earlier, chief Senate sponsors,including Senators Stafford, Chafee andothers, wanted the provision toeliminate State and EPA delays andforce aggressive action.

In normal circumstances, it might beargued that to exercise section303(c)(4)(B) the Administrator mighthave the burden of marshallingconclusive evidence of "necessity" forFederally promulgated water qualitystandards. However, in adopting section303(c)(2}(B), Congress made clear thatthe "normal" procedure had becomeinadequate. The specificity and deadlinein section 303(c)(2)(B} were layered ontop of a statutory scheme alreadydesigned to achieve the adoption oftoxic water quality standards.Congressional action to adopt anessentially redundant provision wasdriven by their impatience with the lackof State progress. The new provisionwas essentially a Congressional"determination" of the necessity for newor revised comprehensive toxic waterquality standards by States. Indeference to the principle of Stateprimacy, Congress, by linking section303(c)(2)(B to the section 303(c)(1) three-year review period, gave States a lastchance to correct this deficiency on theirown. However, this Congressionalindulgence does not alter the fact thatsection 303(c)(2(B) changed the natureof the CWA State/EPA water qualitystandard relationship. The new

provision and its legislative backgroundindicate that the Administrator'sdetermination to invoke his section303(c)(4)(B) authority in thiscircumstance can be met by a genericfinding of inaction on the part of a Stateand without the need to develop data forindividual stream segments. Otherwise,the Agency would face the heavy datagathering burden of justifying the needfor each Federal criterion, the processcould stretch for years and never berealized. To interpret the combination ofsubsections (c)(2)(B) and (c)(4) as aneffective bar to prompt achievement ofstatutory objectives would be a perverseconclusion and render section303(c)(2)(B) essentially meaningless.

A second strong argument againstrequiring EPA to shoulder a heavyburden to exercise section 303(c)(4)(B)authority is that it would invert thetraditional statutory scheme of EPA asnational overseer and States as theentity with the greatest local expertise.The CWA provides States the flexibilityto tailor water quality standards to localconditions and needs based upon their-wealth of first-hand experience,knowledge and data. However, thisallowance for flexibility is based on anassumption of reasoned and timely Stateaction, not an abdication of Stateresponsibility by failure to act. EPAdoes not possess the local expertise orresources necessary to successfullytailor State water quality standards.Therefore, the fact that the CWA allowsStates flexibility in standardsdevelopment does not impose aninappropriate burden on EPA in theexercise of its oversight promulgationresponsibilities. A broad Federalpromulgation based on a showing ofState inaction coupled with basicinformation on the discharge andpresence of toxic pollutants meets thestatutory objective of having criteria inplace that are protective of public healthand the environment. Without localexpertise to help accurately narrow thislist of pollutants and segments requiringcriteria, there is no assurance ofcomparable protection. Nothing in theoverall statutory water qualitystandards scheme anticipates EPAwould develop this expertise in lieu ofthe States. EPA's lack of familiarity withlocal conditions argues strongly for asimple "determination" test to triggersection 303(c)(4)(B) promulgations. Italso supports the concept of an across-the-board rulemaking for all prioritytoxic pollutants with section 304(a)criteria.

A final major reason supporting asimple determination to trigger303(c)(4(B) action is that comprehensiv'e

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Federal promulgation imposes no undueor inappropriate burden on States ordischargers. It merely puts in placestandards for toxic pollutants that areutilized in implementing Clean WaterAct programs. Under this rulemaking, aState still retains the ability to adoptalternative water quality standardssimply by completing its standards'adoption process. Upon EPA approval ofthose standards, EPA would takeactions to withdraw the Federally-promulgated criteria.

Federal promulgation of State waterquality standards should be a course oflast resort. It is symptomatic ofsomething awry with the basic statutoryscheme. Yet, when it is necessary toexercise this authority, as the evidencesuggests is this case, there should be noundue impediments to its use. Section303(c)(4) is replete with deadlines andCongressional directives for theAdministrator to act "promptly" in thesecases. The statute indicates that theAdministrator of EPA, is to " **promptly prepare and publish proposedregulations setting forth a revised ornew water quality standard * * " and.... shall promulgate any revised or

new standard * * * not later than 90days after he published such proposedstandards, unless prior to suchpromulgation, such State has adopted arevised or new standard which theAdministrator determines to be inaccordance with the Act." EPA intendsto make every effort to meet the 90 dayschedule. The adoption of section303(c)(2)(B) reinforced this emphasis onexpeditious actions. EPA hasdemonstrated extensive deference toState primacy and a willingness toprovide broad flexibility in theiradoption of State standards for toxics.However, to fulfill its statutoryobligation requires that EPA's deferenceand flexibility cannot be unlimited.

For the reasons just discussed, EPAdoes not believe it is necessary tosupport the criteria proposed today on apollutant specific, State-by-State,waterbody-by-waterbody basis.Nonetheless, over the course of the pastseveral years in working with andassisting the States, the Agency hasreviewed the readily-available data onthe discharge and presence of prioritytoxic pollutants. While this data is notnecessarily comprehensive, itconstitutes a substantial record tosupport aprimafacie case for the needfor numeric criteria for most prioritytoxic pollutants with section 304(a)criteria guidance in most States. In theabsence of final State actions to adoptcriteria pursuant to either Option 2 or 3which meet the requirements for EPA

approval, this evidence stronglysupports EPA's decision to propose,pursuant to Section 303(c)(4)(B), criteriafor all priority toxic pollutants not fullyaddressed by State criteria. The EPAdata supporting this assertion isdiscussed more fully in the next section.

2. Approach for Developing Today'sProposed Rulemaking

The proposed State-specificrequirement6 in § 131.36(d) weredeveloped using one of two approaches.In the formal review of the adoptedstandards for certain States, EPA hasdetermined that specific numeric toxicscriteria are lacking. For some, criteriawere omitted from the State standards,even though in EPA's judgment, thepollutants can reasonably be expectedto interfere with designated uses. Inthese cases where EPA has specificallyidentified deficiencies in a Statesubmission, today's proposed rule wouldestablish Federal criteria for that limitednumber of priority toxic pollutantsnecessary to correct the deficiency.

For the balance of the States, EPAproposes to apply, to all appropriateState waters, the section 304(a) criteriafor all priority toxic pollutants which arenot the subject of approved Statecriteria. EPA also proposes topromulgate Federal criteria for prioritytoxic pollutants where any previously-approved State criteria do not reflectcurrent science contained in revisedcriteria documents and other guidancesufficient to fully protect all designateduses or human health exposurepathways, where such previously-approved State criteria do not protectagainst both acute and chronic aquaticlife effects, or where such previously-approved State criteria are notapplicable to all appropriate Statedesignated uses. EPA encourages publiccomments regarding any data whichdemonstrate that specific prioritypollutants or water bodies may notrequire Federal criteria to protect Statedesignated uses.

Absent a State-by-State pollutantspecific analysis to narrow the list,existing data sources strongly support acomprehensive rulemaking approach.Information in the rulemaking recordfrom a number of sources indicates thedischarge, potential discharge orpresence of virtually all priority toxicpollutants in all States. The dataavailable to EPA has been assembledinto a "strawman"- analysis designed toidentify priority toxic pollutants thatpotentially require the adoption ofnumeric criteria. Information onpollutants discharged or present wasidentified by accessing various nationaldata sources:

-Final section 304(1) short listsidentifying toxic pollutants likely toimpair designated uses;

-Water column, fish tissue andsediment observations in the StorageRetrieval (STORET) data base (i.e..where the pollutant was detected):

-The National Pollutant DischargeElimination System's (NPDES) PerritCompliance System data base toidentify those pollutants limited indirect dischargers' permits;

-Pollutants included on Form 2(c)permit applications which have beensubmitted by wastewater dischargers:

-Information on discharges to surfacpwaters or POTWs from the ToxicsRelease Inventory required by theEmergency Planning and CommunityRight-To-Know Act of 1986 (title Il1.Pub. L. 99-499);

-Pollutants predicted to be in theeffluent of NPDES dischargers basedon industry-specific analysesconducted for the Clean Water Acteffluent guideline program.The extent of this data supports a

conclusion that promulgation of Federalcriteria for all priority toxic pollutantswith section 304(a) criteria guidancedocuments is appropriate for thoseStates that have not completed theirstandards adoption process. Thisconclusion is supported by several otherfactors.

First, many of the available datasources have limitations which argueagainst relying on them solely to identifyall needed water quality criteria. Forexample, the section 304(1) short listsonly identified water bodies where useswere impaired by point sourcedischarges; State long lists did notgenerally identify pollutants causing useimpairment by nonpoint sources. Otheravailable data sources (i.e., NPDESpermit limits) have a similar narrowscope because of their particularpurposes. Even the value of those databases designed to identify ambientwater problems is restricted by theavailability of monitoring data.

In many States, the quantity, spatialand temporal distribution, and pollutantcoverage of monitoring data is severelylimited. For example, the most recentWater Quality Inventory Report toCongress included an evaluation of useattainment for only one-third of all rivermiles and less than one-half of lakeacres. Even for those waters where useattainment status was reported, manyassessments were based on data whichdid not include the chemical-specificinformation necessary to identify thepriority toxic pollutants which pose athreat to designated uses. Afterevaluating this data, EPA concluded that

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it most likely understates the adversepresence or discharge of priority toxicpollutants.

Further evidence justifying a broadpromulgation rulemaking can .be foundin the State actions to date in theirstandards adoption process. Whilemany have not come to -completion, theinitial steps have led many States todevelop or propose rulemaking packageswith extensive pollutant coverage. Thenature of these preliminary Statedeterminations argues for a Federalpromulgation of all section 304(a)criteria pollutants to ensure adequatepublic health and environmentalprotection against priority toxicpollutant insults.

EPA's strawman analysis for eachState is described in greater detail inpart III of appendix I and the completerecord is available for public review.

The detailed assumptions and "rules"followed by EPA in writing the proposed§ 131.36(d) requirements for alljurisdictions are listed below. Commentis invited on the details of thesedeterminations.

(1) No criteria are'proposed for Stateswhich have been fully approved by EPAas complying with the section303(c)(2)(B) requirements.

(2] For States which have not beenfully approved, if EPA has notpreviously determined which specificpollutants/criteria /waterbodies arelacking from a State's standards (i.e., aspart of an approval/disapproval actiononly), all of the criteria in columns B, C,and D of the proposed § 131.36(b) matrixare proposed for statewide applicationto all appropriate designated uses,except as provided for elsewhere inthese rules. That is, EPA proposes tobring the State into compliance withsection 303(c)(2)(B) via an approachwhich is comparable to option 1 of theDecember 1988 national guidance forsection 303(c)(2)(B).

(3) If EPA has previously determinedwhich specific pollutants[criteria[waterbodies are needed to comply withCWA section 303(c)(2}[B) (i.e., as part ofan approval/disapproval a ction only),the critezia in proposed section 131.36(b)are proposed for only those specificpollutants/criteria/waterbodies (i.e.,EPA proposes to bring the State intocompliance via an approach which iscomparable to option 2 of the December1988 national guidance for section303(c)(2)(B).

(4) For aquatic life, except as providedfor elsewhere in these rules, all waterswith designated aquatic life usesproviding even minimal support toaquatic life are included in the proposedrule (i.e., fish survival, marginal aquaticlir'e, etc.).

(5a) For human health, except asprovided for elsewhere in these rules, allwaters with designated uses providingfor public water supply protection (andtherefore a potential water consumptionexposure route) or minimal aquatic lifeprotection (and therefore a potential fish.consumption exposure route) areincluded in the proposed rule.

(5b) Where a State has determined thespecific aquatic life segments whichprovide a fish consumption exposureroute (i.e., fish or other aquatic life arebeing caught and consumed] and EPAapproved this determination as part ofstandards approval/disapproval action,the proposed rule includes the fishconsumption (Column D(MJ) criteria foronly those aquatic life segments, exceptas provided for elsewhere in these rules.In making a determination that certainsegments do not support a fishconsumption exposure route, a Statemust have completed, and EPAapproved, a use attainability analysisconsistent with the provisions of 40 CFR131.10(j). In the absence of such anapproved State determination, EPA hasproposed fish consumption criteria forall aquatic life segments.

(6) Uses/Classes other than thosewhich support aquatic life or humanhealth are not included in the proposedrulemaking [e.g., livestock watering,industrial water supply), unless they aredefined in the State standards as alsoproviding protection to aquatic life orhuman health (i.e., unless they aredescribed as protecting multiple usesincluding aquatic life or human health).For example, if the State standardsinclude a use such as industrial watersupply, and in tie narrative descriptionof the use the State standards indicatethat the use includes protection forresident aquatic life, then this use isincluded in the proposed rulemaking.

(7) For human health, the"water+ fish" criteria in Column D(I) of§ 131.36(b) are proposed for allwaterbodies where public water supplyand aquatic life uses are designated,except as provided for elsewhere inthese rules (e.g., rule 9).

(8) If the State has public watersupplies where aquatic life uses havenot been designated, or public watersupplies that have been determined notto provide a potential fish consumptionexposure pathway, the "water only"criteria in Column D(I) of § 131.36(b) areproposed for such waterbodies, exceptas provided for elsewhere in these rules(e.g., rule 9).

(9) EPA is generally not proposingcriteria for priority toxic pollutants forwhich a State has adopted criteria andreceived EPA approval. The exceptions

to this general rule are described inrules 10 and 11.

(10) For priority toxic pollutantswhere the State has adopted humanhealth criteria and received EPAapproval, but such criteria do not fullysatisfy section 303{cJ(2)(B) requirements,the proposed rule includes human healthcriteria for such pollutants. For example,consider a case where a State has awater supply segment that poses anexposure risk to human health from bothwater and fish consumption. If the Statehas adopted, and received approval for,human health criteria based on waterconsumption only (e.g., Safe DrinkingWater Act Maximum ContaminantLevels (MCLs)) which are less stringentthan the "4water +-fish" criteria inColumn D(I) of proposed § 131.36(b), theColumn D(I) criteria are proposed forthose water -supply segments. Therationale for this is to ensure that bothwater and fish consumption exposurepathways are adequately addressed andhuman health is fully protected. If theState has adopted water consumptiononly criteria which are more stringent orequal to the Column D[I) criteria, the"water+fish" criteria in Column D(I)criteria are not proposed.

(11) For priority toxic pollutantswhere the State has adopted aquatic lifecriteria and previous to the 1987 CWAAmendments received EPA approval,but such criteria do not fully satisfysection 303(c)(2)(B] requirements, theproposed rule includes aquatic lifecriteria for such pollutants. For example,if the State has adopted not-to-be-exceeded aquatic life criteria which areless stringent than the 4-day averagechronic aquatic life criteria in § 131.36(bj(i.e., in Columns B(ill) and C11l)), theacute and chronic aquatic life criteria inSection 131.36(b) are proposed for thosepollutants.

The rationale for this is that the State-adopted criteria do not protect residentaquatic life from both acute and chroniceffects, and that Federal criteria arenecessary to fully protect aquatic lifedesignated uses. If the State hasadopted not-to-be-exceeded aquatic lifecriteria which are more stringent orequal to the chronic aquatic life criteriain § 131.36(b), the acute and chronicaquatic life criteria in § 131.36(b) are notproposed for those pollutants.

(12] Under certain conditionsdiscussed in rules 9, 10, and 11, criterialisted in § 131.36(b) are not proposed forspecific pollutants; however, EPA madesuch exceptions only for pollutants forwhich criteria have been adopted by theStale and approved by EPA, where suchcriteria are currently effective underState law the appropriate EPA Region

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concluded that the State's criteria fullysatisfy section 303(c)(2)(B) requirements.

3. Approach' for States That FullyComply Subrequent to Issuance ofToday's Propcsed Rulemaking

As discussed in prior sections of thispreamble, the water quality standardsprogram has been established with anemphasis on State primacy. Althoughthis proposed rule has been developedto Federally promulgate toxics criteriafor States, EPA prefers that Statesmaintain primacy, revise their ownstandards, and achieve full compliance.EPA is hopeful that today's proposedrulemaking will provide additionalimpetus for non-complying States toadopt the criteria for priority toxicpollutants necessary to comply withsection 303(c)[2)(B).

For States that achieve fullcompliance before publication of thefinal rulemaking, EPA will not includesuch States in the final rulemaking. Atany point in the process prior to finalpromulgation, a State can ensure that itwill not be affected by this action byadopting the necessary criteria pursuantto State law and receiving EPAapproval. The content of the adoptedstandards must be within theboundaries of the several acceptableapproaches described earlier in thispreamble.

Following a final promulgation of thisrule, removal of a State from the rulewill require rulemaking by EPAaccording to the requirements of theAdministrative Procedure Act (5 U.S.C.551 et seq.). EPA will withdraw theFederal rule without a notice andcomment rulemaking when the Stateadopts standards no less stringent thanthe Federal rule (i.e., standards whichprovide, at least, equivalentenvironmental protection). For example,see 51 FR 11580, April 4, 1986, whichfinalized EPA's removal of a Federalrule for the State of Mississippi.

However, if a State adopts standardsfor toxics which are less stringent thanthe Federal rule but, in the Agency'sjudgment, fully meet the requirements ofthe Act, EPA will propose to withdrawthe rule with a notice of proposedrulemaking and provide for publicparticipation. This procedure would berequired for partial or complete removalof a State from this rulemaking. A Statecovered by the final rule could adopt thenecessary criteria using any of the threeoptions or combinations of thoseOptions described in EPA's 1989guidance.

EPA cautions States and the publicthat promulgation of a Federal ruleremoves most of the flexibility availableto States for modifying their standards

on a discharger-specific or stream-specific basis. For example, variances,site-specific criteria and schedules ofcompliance actions pursuant to Statelaw for federally promulgqted criteriaare precluded. Each of these types ofmodifications would require Federalrulemaking on a case-by-case basis tochange the Federal rule for that State.

F. Derivation of Proposed Criteria

1. Sections 304(a) Criteria Process

Under the authority of CWA section304(a) EPA has developedmethodologies and specific criteria toprotect aquatic life and human health.These methodologies are intended toprovide protection for all surface wateron a national basis. As described below,there are site specific procedures formore precisely addressing site specificconditions for an individual water body.However, these site-specific criteriaprocedures are infrequently usedbecause the section 304(a) criteriarecommendations have proventhemselves to be appropriate for thevast majority of water bodies. Themethodologies have been subject topublic review, as have the individualcriteria documents. Additionally, themethodologies have been reviewed andapproved by EPA's Science AdvisoryBoard.

EPA incorporates by reference intothe record of this proposed rulemakingthe aquatic life methodology asdescribed in "Appendix B-Guidelinesfor Deriving Water Quality Criteria forthe Protection of Aquatic Life and ItsUses" (45 FR 79341, November 28, 1980)as amended by "Summary of Revisionsto Guidelines for Deriving NumericalNational Water Quality Criteria for theProtection of Aquatic Organisms andTheir Uses" (50 FR 30792, July 29, 1985).EPA also incorporates by reference intothe record of this proposed rulemakingthe human health methodology asdescribed in "Appendix C-Guidelinesand Methodology Used in thePreparation of Health EffectsAssessment Chapters of the ConsentDecree Water Criteria Documents" (45FR 79347, November 28, 1980). EPA alsorecommends that the following bereviewed for information: "AppendixD-Response to Comments onGuidelines for Deriving Water QualityCriteria for the Protection of AquaticLife and Its Uses," (45 FR 79357,November 28, 1980); "Appendix E-Responses to Public Comments on theHuman Health Effects Methodology forDeriving Ambient Water QualityCriteria" (45 FR 79368, November 28,1980); and "Appendix B-Response toComments on Guidelines for Deriving

Numerical National Water Quality.'Criteria for the Protection of AquaticOrganisms and Their Uses" (50 FR30793, July 29, 1985). EPA also is placinginto the record the most currentindividual criteria documents for thepriority toxic pollutants included intoday's proposal.

The primary focus of this rule is theinclusion of the water quality criteria forpollutant(s) in State standards asnecessary to support water quality-based control programs. The Agency isaccepting comment on the criteriaproposed in today's rule. I [owever,Congress has established a veryambitious schedule for the promulgationof the final criteria. The statutorydeadline in section 303(c)(4) clearlyindicates that Congress intended theAgency to move very expeditiouslywhen Federal action is warranted. TheAgency believes that the limited timeavailable for promulgation of theregulation can be used most efficientlyand effectively by addressing thoseissues that have not already comebefore the Agency.

The methodology used to develop thecriteria and the criteria themselves (tothe extent not updated through IRIS)have previously undergone scientificpeer review and public review andcomment, and have been revised asappropriate. For the most part, thisreview occurred before Congressamended the Act in 1987, to require theinclusion of numeric criteria for certaintoxic pollutants in State standards.Congress acted with full knowledge ofthe EPA process for developing criteriaand the Agency's recommendationsunder section 304(a). EPA believes it isconsistent with Congressional intent torely in large part on existing criteriarather than engage in a time-consumingreevaluation of the underlying basis forwater quality criteria. Accordingly, theAgency does not intend in thisrulemaking to address the issues thathave already been addressed by theAgency in response to previouscomments. It is the Agency's belief thatthis approach will best achieve thepurpose of moving forward inpromulgating criteria for States not incompliance with section 303(c)(2)[B) sothat environmental controls intended byCongress can be put into place toprotect public health and welfare andenhance water quality.

It should be noted that the Agency isinitiating a review of the basicguidelines for developing criteria andthat comments received in thisrulemaking may be of value in thateffort as well. Future revisions to thecriteria guidelines will be revicived by

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the Agency's Science Advisory Boardand submitted to the public for reviewand comment following the sameprocess that was used in issuing theexisting methodological guidelines.Subsequent revisions of criteriadocuments and the issuance of any newcriteria documents will also be subjectto public review.

2. Aquatic Life Criteria

Aquatic life criteria may be expressedin numeric or narrative forms. EPA'sguidelines describe an objective,internally consistent and appropriateway of deriving chemical-specific,numeric water quality criteria for theprotection of the presence-of, as well asthe uses of, both fresh and marine wateraquatic organisms.

An aquatic life criterion derived usingEPA's section 304(a) method representsan estimate of the highest concentrationof a pollutant in water that does notpresent a significant risk to aquaticorganisms per se or to their use. EPA'sguidelines are designed to derive criteriathat protect aquatic communities byprotecting most of the species and theiruses most of the time, but notnecessarily all of the species all of thetime. Aquatic communities can toleratesome stress and occasional adverseeffects on a few species so that totalprotection of all species all of the time isnot necessary. EPA's guidelines attemptto provide a reasonable and adequateamount of protection with only a smallpossibility of substantial overprotectionor underprotection. As discussed indetail below, there are severalindividual factors which may make thecriteria somewhat overprotective orunderprotective. Clearly, addressingthem all is probably infeasible and, inany case, would make the criteriaderivation process unduly resourceintensive and time consuming. Theapproach EPA is using is believed to beas well balanced as possible, given thestate of the science.

Numerical aquatic life criteria derivedusing EPA's most recent guidelines areexpressed as short-term and long-termnumbers, rather than one number, inorder that the criteria more accuratelyreflect toxicological and practicalrealities. The combination of a criteriamaximum concentration (CMC), a one-hour average acute limiL and a criteriacontinuous concentration (CCC), a four-day average concentration chronic limit,provide protection of aquatic life and itsuses from acute and chronic toxicity toanimals and plants, and frombioconcentration by aquatic organisms,without being as restrictive as a one-number criterion would have to be.

The two number criteria are intendedto identify average pollutantconcentrations which will producewater quality generally suited tomaintenance of aquatic life and theiruses while restricting the duration ofexcursions over the average so that totalexposures will not cause unacceptableadverse effects. Merely specifying anaverage value over a time period isinsufficient unless the time period isshort, because excursions higher thanthe average can kill or cause substantialdamage in short periods.

EPA's guidelines were developed onthe assumption that the results oflaboratory tests are generally useful forpredicting what will happen in fieldsituations. Certain ambient waters mayhave some capacity to bind pollutantsand make them less bioavailable. Thesite-specific criteria process provides ameans of addressing this effect (i.e., byallowing development and use of a"water effect ratio" that quantifies thedifference in toxicity of a pollutant insite water versus the toxicity of thepollutant in the laboratory water used todevelop the section 304(a) criteriarecommendation). However, in theabsence of such an approach, thecriteria may be somewhatoverprotective in some situations.

A minimum data set of eight specifiedfamilies is required for criteriadevelopment (details are given in themethodology cited above). The eightspecific families are intended to berepresentative of a wide spectrum ofaquatic life. For this reason it is notnecessary that the specific organismstested be actually present in the waterbody. States may develop site-specificcriteria using native species, providedthat the broad spectrum represented bythe eight families is maintained. Allaquatic organisms and their commonuses are meant to be considered, but notnecessarily protected if relevant dataare available.

EPA's application of guidelines todevelop the criteria matrix in theproposed rule is judged by the Agencyto be applicable to all waters of theUnited States, and to all ecosystems.There are waters and ecosystems wheresite-specific criteria could be developed,as discussed below, but it is up to Statesto identify those waters and develop theappropriate site-specific criteria.

Fresh water and salt water (includingboth estuarine and marine waters.] havedifferent chemical compositions, andfreshwater and saltwater species rarelyinhabit the same water simultaneously.To provide additional accuracy, criteriadeveloped recently are developed forfresh water and for salt water.

Assumptions which may make thecriteria underprotective include the useof criteria on an individual basis, withno consideration of additive orsynergistic effects, and the general lackof consideration of impacts on wildlife,due principally to a lack of data.

3. Criteria for Human Health

As with aquatic life, EPA's guidelinesfor human health criteria attempt toprovide a reasonable and adequateamount of protection with only a smallpossibility of substantial overprotectionor underprotection. EPA's section 304(a)criteria for human health are based ontwo types of biological endpoints:

(1) Carcinogenicity and (2) systemictoxicity (i.e., all other adverse effectsother than cancer). Thus, there are twoprocedures for assessing these healtheffects: One for carcinogens and one fornon-carcinogens.

EPA's guidelines assume thatcarcinogenicity is a "non-thresholdphenomenon," that is, there are no"safe" or "no-effect levels" becauseeven extremely small doses areassumed to cause a finite increase in theincidence of the response (i.e., cancer).Therefore, EPA's water quality criteriafor carcinogens are presented aspollutant concentrations correspondingto increases in the risk of developingcancer.

For pollutants that do not manifestany apparent carcinogenic effects inanimal studies {i.e., systemic toxicants),EPA assumes that the pollutant has athreshold below which no -effects will beobserved. This assumption is based onthe premise that a physiologicalmechanism exists within livingorganisms to avoid or overcome theadverse effects of the pollutant belowthe threshold concentration.

The human health risks of a substancecannot be determined with any degreeof confidence unless dose-responserelationships are quantified. Therefore,a dose-response assessment is requiredbefore a criterion can be calculated. Thedose-response assessment determinesthe quantitative relationships betweenthe amount of exposure to a substanceand the onset of toxic injury or disease.Data for determining dose-responserelationships are typically derived fromanimal studies, or less frequently, fromepidemiological studies in exposedpopulations.

The dose-response informationneeded for carcinogens is an estimate ofthe carcinogenic potency of thecompound. Carcinogenic poo ncy isdefined here -as a general term for achemical's human cancer-causingpotential. This term is often used loosely

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to refer to the more specific carcinogenicor cancer slope factor which is definedas an estimate of carcinogenic potencyderived from animal studies orepidemiological data of humanexposure. It is based on extrapolationfrom test exposures of high dose levelsover relatively short periods of time tomore realistic low dose levels over alifetime exposure period by use of linearextrapolation models. The cancer slopefactor, ql*, is EPA's estimate ofcarcinogenic potency and is intended tobe a conservative upper bound estimate(e.g. 95% upper bound confidence limit).

For non-carcinogens, EPA uses thereference dose (RfD) as the doseresponse parameter in calculating thecriteria. 'The RfD was formerly referredto as an "Acceptable Daily Intake" orADI. The RID is useful as a referencepoint for gauging the potential effects ofother doses. Doses that are less than theRfD are not likely to be associated withany health risks, and are therefore lesslikely to be of regulatory concern. As thefrequency of exposures exceeding theRfD increases and as the size of theexcess increases, the probabilityincreases that adverse effects may beobserved in a human population.Nonetheless, a clear conclusion cannotbe categorically drawn that all dosesbelow the RfD are "acceptable" and thatall doses in excess of the RfD are"unacceptable." In extrapolating non-carcinogen animal test data to humansto derive an RfD, EPA divides a no-observed-effect dose observed in animalstudies by an "uncertainty factor" whichis based on professional judgment oftoxicologists and typically ranges from10 to 10,000.

For section 304([) criteriadevelopment, EPA typically considersonly exposures to a pollutant that occurthrough the ingestion of waters andcontaminated fish and shellfish. Thusthe criteria are based on an assessmentof risks related to the surface waterexposure route only.

The assumed exposure pathways incalculating the criteria are theconsumption of 2 liters per day at thecriteria concentration and theconsumption of 6.5grams per day offish/shellfish contaminated at a levelequal to the criteria concentration butmultiplied by a "bioconcentration.actor." The use of fisn consumption asan exposure factor requires thequantification of pollutant residues inthe edible portions of the ingestedspecies. Bioconcentration factors (BCFs)are used to relate pollutant resi-iues inaquatic organisms to the pollutantconcentration in ambient waters. BCFsare quantified by various procedures

depending on the lipid solubility of thepollutant. For lipid soluble pollutants,the average BCF is calculated from theweighted average percent lipids in theedible portions of fish/shellfish, whichis about 3%; or it is calculated fromtheoretical considerations using theoctanol/water partition coefficient. Fornon-lipid soluble compounds, the BCF isdetermined empirically. The assumedwater consumption is taken from theNational Academy of Sciencespublication "Drinking Water andHealth" (1977). The 6.5 grams per daycontaminated fish consumption value isequivalent to the average per-capitaconsumption rate of all (contaminatedand non-contaminated) freshwater andestuarine fish for the U.S. population.

EPA also assumes in calculatingwater quality criteria that the exposedindividual is an average adult with bodyweight of 70 kilograms. The issue ofconcern is dose per kilogram of bodyweight. EPA assumes 6.5 grams per dayof contaminated fish consumption and 2liters per day of contaminated drinkingwater consumption for a 70 kilogramperson in calculating the criteria.Persons of smaller body weight areexpected to ingest less contaminatedfish and water, so the dose per kilogramof body weight is generally expected tobe roughly comparable. There may besubpopulations within a State, such assubsistence fishermen, who as a resultof greater exposure to a contaminant,are at greater risk than the hypothetical70 kilogram person eating 6.5 grams perday of maximally contaminated fish andshellfish and drinking 2 liters per day ofmaximally contaminated drinking water.(EPA is in part addressing the potentialthat highly exposed subpopulationsexist by selecting a relatively stringentcancer risk level (10- 9 for use inderiving State-wide criteria forcarcinogens. Individuals that ingest tentimes more of a pollutant than isassumed in derivation of the criteria willbe protected to a 10 - 5 level, which EPAhas historically considered to beadequately protective. There may,nevertheless, be circumstances wheresite-specific numeric criteria that aremore stringent than the State-widecriteria are necessary to adequatelyprotect highly exposed subpopulations.Although EPA intends in this initialpromulgation to foous on promulgationof appropriate State-wide criteria thatwill reduce risks to all exposedindividuals, including highly exposedsubpopulations, site specific criteriamay be developed subsequently by EPAor the States where warranted toprovide necessary additionalprotection.)

For non-carcinogens RfDs aredeveloped based on pollutantconcentrations that cause thresholdeffects. The RfD is an estimate (withuncertainty spanning perhaps an orderof magnitude) of a daily exposure to thehuman population (including sensitivesubgroups) that is likely to be withoutappreciable risk of deleterious effectsduring a lifetime.

Criteria are calculated -for individualchemicals with no consideration ofadditive, synergistic or antagonisticeffects in mixtures. If the conditionswithin a State differ from theassumptions EPA used, the States havethe option to perform the analyses fortheir conditions.

EPA has a process to develop ascientific consensus on oral referencedoses and carcinogenic slope factors.Reference doses and slope factors arevalidated by two Agency work groups(i.e., one work group for each) which arecomposed of senior Agency scientistsfrom all of the program offices and theOffice of Research and Development.These work groups develop a consensusof Agency opinion for Rfds and slopefactors which are then used throughoutthe Agency for consistent regulation andguidance development. EPA maintainsan electronic data base which containsthe official Agency consensus for Rfd'sand slope factors which is known as theIntegrated Risk Information System(IRIS). It is available for use throughEPA's electronic mail system, and alsoavailable through the Public HealthNetwork of the Public HealthFoundation, and on the NationalInstitutes of Health National Library ofMedicine's TOXNET system. For thecriteria included in today's proposal,EPA used the criteria recommendationfrom the appropriate section 304(a)criteria document. (The availability ofEPA's criteria documents has beenannounced in various Federal Registernotices. These documents are alsoplaced in the record for today'sproposed rule.) However, if the Agencyhas changed in IRIS any parametersused in criteria derivation sinceissuance of the criteria guidancedocument, EPA recalculated the criteriarecommendation with the latestinformation. (This information isincluded in the record.) Thus, there maybe differences between the originalrecommendation, and those In today'sproposal, but today's proposal presentsthe Agency's most current section 304(a)criteria recommendation. Therecalculated human health numbers aredenoted by an "a" in the criteria matrixin subsection 131.38(b) of today'sproposed rule.

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In order to base its regulatorydecisions on the best available science,EPA continuously updates itsassessment of the risk from exposure tocontaminants. On September 11, 1991,EPA's Office of Research andDevelopment (ORD) began reassessingthe scientific models and exposurescenarios used to predict the risks ofbiological effects from exposure to lowlevels of dioxin. This reassessment hasthe potential to alter the risk assessmentfor dioxin and accordingly the Agency'sregulatory decisions related to dioxin.At this time, EPA is unable to say withany certainty what the degree ordirections of any changes in riskestimates might be. This rulemakingincludes a proposed Agency action withregard to dioxin that may be affected bythe reassessment. The Agency will becarefully monitoring ORD's efforts inorder to ensure that appropriate actionsare taken during the course of thisrulemaking to reflect any necessarychanges resulting from thereassessment. If a final Agency actionon this rulemaking occurs prior tocompletion of ORD's work, the Agencywill consider revisiting that decision.

4. Section 304(a) Human Health CriteriaExcluded

Today's proposal does not containcertain of the Section 304(a) criteria forpriority toxic pollutants because thosecriteria were not based on toxicity. Thebasis for these particular criteria areorganoleptic effects (e.g., taste and odor)which would make water and edibleaquatic life unpalatable but not toxic.Because the basis for this proposedrulemaking is to protect the publichealth and aquatic life from toxicityconsistent with the language in section303(cd{2)(B], EPA is proposing criteriaonly for those priority toxic pollutantswhose criteria recommendations arebased on toxicity. The Section 304(a)human health criteria based onorganoleptic effects for copper, zinc, 2.4-dimethylphenol, and 3-methyl-4-chlorophenol are excluded for thisreason.

5. Cancer Risk Level Proposed

EPA's Section 304(a) criteria guidancedocuments for priority toxic pollutantswhich are based on carcinogenicitypresent concentrations for upper boundrisk levels of 1 excess cancer per 100.000people (10-5), per 1,000,000 people (10-),dnd per 10,000,000 people (10-).However, the criteria documents do notrecommend a particular risk factor asEPA policy.

In the April, 1990, Federal Registernotice of preliminary assessment ofState compliance, EPA announced the

intention to include in the proposedrulemaking an incremental cancer risklevel of one in a million (10-9 for allpriority toxic pollutants regulated ascarcinogens. That cancer risk level isreflected in this proposed rule. Thereasons supporting this decision arediscussed below. However, EPA's Officeof Water's guidance to the States hasconsistently reflected the Agency'spolicy of accepting cancer risk policiesfrom the States in the range of 10 - 6 to10- . EPA reviews individual Statepolicies as part of its water qualitystandards oversight function anddetermines if States have appropriatelyconsulted its citizens and applied goodscience In adopting water qualitycriteria.

First, EPA's human health criteriahave been developed based on anumber of exposure assumptions. Manyof these assumptions are based on theexposure for an average individual. Forexample, EPA's criteria assumesexposure of a 70 kilogram (154 pound)adult who consumes 2 liters (2.1 quarts)of water per day and 6.5 grams of fishper day (less than 7 ounces per month).These assumptions are based onapproximate national averages, butconsiderably understate the exposurethat would occur for certain segments ofthe population that have high fishconsumption or depend on fishconsumption for subsistence. Similarly,it would overstate the exposure of thosewho consume less fish than the Nationalaverage amount. Therefore, althoughEPA would accept a lower Stateadopted risk level, in the range of 10 -

4 to10- 1, EPA has chosen a 10-' risk level toprotect the average exposed individualat a conservative incremental lifetimecancer risk.

A second strong reason is that a 10-6risk level is consistent with what mostStates have selected, or are expected toselect, as their risk level. A recent EPAstatus report on State compliance withsection 303(c)(2)(B) found that 36 of the57 States and Territories will select 10-6as their risk level (12 States haveselected or are expected to select 10- 5and 9 of the remaining States areundecided). EPA's proposal is thereforeconsistent with the majority of theStates, does not contradict those Stateschoosing a 10- risk level and does notpreclude States from eventuallychoosing a risk level below 10- .

Third, by selecting a risk level of 10- 6

for the average exposed individual,some assurance is provided against thepossibility that current section 304(a)criteria are not sufficiently stringent.The various parameters used in derivingthe Section 304(a) criteria (e.g. cancer

potency slopes, reference doses,bioaccumulation factors, etc.) are basedon the state of present science. Withadditional research and experience,EPA may find that one or more of thesefactors understates the actual publicrisk. In addition, in many cases, EPA'scriteria are based upon a single healtheffect. As the science evolves andavailable information expands, there isthe potential that EPA will determinethat other endpoints or effects are moresensitive than those currentlyconsidered. This risk level also reflects arecognition that certain factors are notconsidered in the current criteriamethodology.

A proposed 10-6 risk level does notpreclude State alternatives. If a Statedecides that a different risk level ismore appropriate, it may avoid Federalpromulgation by completing itsstandards adoption process incompliance with section 303(c)(2)(B). Asdiscussed earlier, this would be the caseboth in advance of or subsequent tofinal promulgation.

6. Applying EPA 's Nationally DerivedCriteria to State Waters

To assist States in modifying EPA'swater quality criteria, the Agency hasprovided guidance on developing sitespecific criteria for aquatic life andhuman health (see Water QualityStandards Handbook and the Guidelinesfor Deriving Numerical National WateiQuality Criteria). This guidance can beused by the appropriate regulatoryauthority to develop alternative criteriaWhere such criteria are more stringentthan the criteria finally developedpursuant to this proposed rulemaking,section 510 of the Clean Water Act (33U.S.C. 1370) provides authority for theirimplementation and enforcement in lieuof today's proposed criteria.

EPA's experience with such site-specific criteria has verified that thenational criteria are generally protectiveand appropriate for direct use by theStates.

G. Description of the Proposed Rule

EPA's final rule would establish anew § 131.36 in 40 CFR part 131 entitled."Toxics Criteria for Those States NotFully Complying With Clean Water Actsection 303(c)(2}(B)."

1. Scope

Subsection (a), entitled "Scope",clarifies that this section is not a generalpromulgation of the section 304(a)criteria for priority toxic pollutants butis restricted to specific pollutants inspecific States.

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Federal Register / Vol. 56, No. 223 / Tuesday, November 19, 1991 1 Proposed Rules

2. EPA Criteria for Priority ToxicPollutants

Subsection (b) presents a matrix ofthe applicable EPA criteria for prioritytoxic pollutants. Section 303(c)(2)(B) ofthe Act addresses only pollutants listedas "toxic" pursuant to section 307(a) ofthe Act. As discussed earlier in thispreamble, the section 307(a) list oftoxics contains 65 compounds andfamilies of compounds, whichpotentially include thousands of specificcompounds. The Agency uses the list of126 "priority toxic pollutants" foradministrative purposes (see 40 CFRpart 423, appendix A). Reference in thisproposed rule to priority toxicpollutants, toxic pollutants, or toxicsrefers to the 126 priority toxic pollutants.

However, EPA has not developedboth aquatic life and human healthsection 304(a) criteria for all of the 126priority toxic pollutants. The matrix inparagjaph (b) contains human healthcriteria in Column D for 102 prioritytoxic pollutants which are divided intocriteria (Column I) for waterconsumption (i.e., 2 liters per day) andaquatic life consumption (i.e., 6.5 gramsper day of aquatic organisms), andColumn I1 for aquatic life consumptiononly. The term aquatic life includes fishand shellfish such as shrimp, clams,oysters and mussels. The total numberof priority toxic pollutants with criteriaproposed today differs from the totalnumber of priority toxic pollutants withsection 304(a) criteria because EPA hasdeveloped and is proposing chromiumcriteria for two valence states. Thus,although chromium is a single prioritytoxic pollutant, there are two criteria forchromium. See numbers 5a and 5b inproposed § 131.36(b).

The matrix contains aquatic lifecriteria for 30 priority pollutants. Theseare divided into freshwater criteria(Column B) and saltwater criteria(Column C). These columns are furtherdivided into acute and chronic criteria.The aquatic life criteria are consideredby EPA to be protective when appliedunder the conditions described in thesection 304(a) criteria documents and inthe "Technical Support Document forWater Quality-based Toxics ControL"For example. waterbody uses should beprotected if the criteria are notexceeded, on average, once every threeyear period. It should be noted that thecriteria maximum concentrations (theacute criteria) are one-hour averageconcentrations and that the criteriacontinuous concentrations (the chroniccriteriaj are four-day averages. It shouldalso be noted that for certain of themetals, the actual criteria are equationswhich are included as footnotes to the

matrix. The toxicity of these metals arewater hardness dependent. The valuesshown in the table are based on ahardness expressed as calciumcarbonate of 100 mg/l. Finally, thecriterion for pentachlorophenol is pHdependent The equation is the actualcriterion and is included as a footnote.The value shown in the matrix is for apH of 7.8 units.

Several of the freshwater aquatic lifecriteria are incorporated into the matrixin the format used in -the 1980 criteriamethodology. This distinction is noted infootnote {g) to the table. EPA has notupdated these criteria for variousreasons. Footnote (g) describes anapproximate method to translate these1980 criteria to the equivalent criteria bythe 1985 methodology. EPA could makethis translation in a final rule andsolicits public comment on whichapproach is better.

The matrix also includes toxicity-based human health criteria for copper,2-chloroethylvinyl ether, 1.,2-trans-dichloroethylene, 2-chlorophenol,acenaphthene, butylbenzyl phthalate,and N-nitrosodi-n-propylamine. Thecriteria for these substances are shownin parentheses and are not beingproposed today but are included forinformational purposes and as notice forconsideration in all future State triennialreviews. Although sufficient informationon these compounds was previouslyunavailable to calculate a section 304(a)criterion based on carcinogenicity orsystemic toxicity, Agency-approvedinformation in IRIS now allowcalculation of these criteria using theEPA criteria guidelines. EPA hasassembled another matrix whichprovides all of the factors used tocalculate the proposed human healthcriteria. This supplementary matrix isincluded in the record for this proposal.

3. Applicability

Section 131.36(d) establishes theapplicability of the criteria proposed foreach included State. It provides that thecriteria promulgated for each Statesupersede and/or complement any Statecriteria for that toxic pollutant. EPAbelieves it has not proposed tosupersede any State criteria for prioritytoxic pollutants unless the State-adopted criteria are disapproved orotherwise insufficient. The approachfollowed by the Agency in preparingproposed § 131.36(d) is described insection E.2, and further rationale isprovided in section E.3 of this preamble.EPA invites comment on the accuracy ofthe Agency's decisions to include orexclude particular priority toxicpollutant criteria. ,

EPA's principal purpose today is topropose the toxics criteria necessaty tocomply with section 3031c)(2)(B).However, in order for such criteria toachieve their intended purpose theimplementation scheme must be suchthat the final results protect the publichealth and welfare. In section F of thispreamble a discussion focused on thefactors in EPA's assessment of criteriafor carcinogens. For example, fishconsumption rates, bioaccunmulationfactors, and cancer potency slopes werediscussed. When any one of thesefactors is changed, the others must alsobe evaluated so that, on balance,resulting criteria are adequatelyprotective.

Once an appropriate critorion isselected for either aquatic life or humanhealth protection, then appropriateconditions for calculating water quality-based effluent limits for that chemicalmust be established in order to maintainthe intended stringency and achieve thenecessary toxics control. EPA hasincluded in this proposal appropriateimplementation factors necessary tomaintain the level of protectionintended. These proposals are includedin subsection (c).

For example, most States have lowflow values for streams and riverswhich establish flow rates below whichnumeric criteria may be exceeded.These low flow values became designflows for sizing treatment plants anddeveloping water quality-based effluentlimits. Historically, these so-called"design" flows were selected for thepurposes of waste load allocationanalyses which focused on instreamdissolved oxygen concentrations andprotection of aquatic life. With thepublication of the 1985 TechnicalSupport Document for Water QualityBased Toxics Control (TSD), EPAintroduced hydrologically andbiologically based analyses for theprotection of aquatic life and humanhealth.1 EPA recommended either oftwo methods for calculating acceptablelow flows, the traditional hydrologicmethod developed by the U.S.Geological Survey and a biologicalbased method developed by FPA. The

' These concepts have been expandedsubsequently in guidance ertitled "TecnicalGuidance Manual for Performing WasteladAllocations. Book S, Design Conditions," USEPA.Office of Water Regulations and Standards,Washington, DC (1986}.These new developmentsare included in appendix D of the revired 1 bI). Thediscussion here is greatly simplified and is providedto support EPA's decision to propose baselineapplication values for Instream flows and therebymaintain the intended itringency of the c.ritvria forpriority toxic pollutants.

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resalts of either of these two methodsmay be used.

Some States have adopted specificlow flow requirements for streams andrivers to protect designated uses againstthe effects of toxics. Generally thesehave followed the guidance in the TSD.However, EPA believes it is essential toinclude proposed design flows in today'sproposed rule so that, where States havenot yet adopted such design flows, thecriteria proposed today would beimplemented appropriately. Clearly, ifthe proposed criteria were implementedusing inadequate design flows, theresulting toxics controls would not befully effective, because the resultingambient concentrations would exceedEPA's recommended levels.

In the case of aquatic life, morefrequent violations than the once in 3years assumed exceedences wouldresult in diminished vitality of streamecosystems characteristics by the loss ofdesired species such as sport fish. Thelow flow values proposed are:

Aquatic Life:Acute criteria. 1 Q 10 or I B 3.

(CMC).Chronic criteria 7 Q 10 or 4 B 3

(CCC).Human Health:

Non-carcinogens ...... 30 Q 5.Carcinogens ............... harmonic mean flow.

Where:I Q 10 is the lowest one day flow with an

average recurrence frequency of once in 10years determined hydrologically;

1 B 3 is biologically based and indicates anallowable exceedence of once every 3years. It is determined by EPA'scomputerized method (DFLOW model);

7 Q 10 is the lowest average 7 consecutiveday low flow with an average recurrencefrequency of once in 10 years determinedhydrologically;

4 B 3 is biologically based and indicates anallowable exceedence for 4 consecutivedays once every 3 years. It is determinedby EPA's computerized method (DFLOWmodel);

30 Q 5 is the lowest average 30 consecutiveday low flow with an average recurrencefrequency of once in 5 years determinedhydrologically; and

The harmonic mean flow is a long term meanflow value calculated by. dividing thenumber of daily flows analyzed by the sumof the reciprocals of those daily flows.

EPA is proposing the harmonic meanflow to be applied with human healthcriteria. The concept of a harmonicmean is a standard statistical dataanalysis technique. EPA's model forhuman health effects assumes that sucheffects occur because of a long-termexposure to low concentration of a toxicpollutant. For example, two liters of

water per day for seventy years. Toestimate the concentrations of the toxicpollutant in those two liters per day bywithdrawal from streams with a highdaily variation in flow, EPA believes theharmonic mean flow is the correctstatistic to use in computing such designflows rather than other averagingtechniques.

2

All waters, whether or not suitable forsuch hydrologic calculations butincluded in this proposed rule (includinglakes, estuaries, and marine waters),must contain the criteria proposedtoday. Such attainment must occur atthe end of the discharge pipe, unless theState has an EPA approved mixing zoneregulation. If the State has an EPAapproved mixing zone regulation, thenthe criteria would apply at the locationsstated in that regulation. For example,the chronic criteria (CCC) must apply atthe geographically defined boundary ofthe mixing zone. Discussion and-guidance of these factors are included inthe revised TSD in chapter 4.

EPA is aware that the criteriaproposed today for some of the prioritytoxic pollutants are at concentrationsless than EPA's current analyticaldetection limits. Detection limits havenever been an acceptable basis forsetting standards since they are notrelated to actual environmental impacts.The environmental impact of a pollutantis based on a scientific determination,not an arbitrary measuring techniquewhich is subject to change. Setting thecriteria at levels that reflect adequateprotection tends to be a forcingmechanism to improve analyticaldetection methods. As the methodsimprove, limits closer to the actualcriteria necessary to protect aquatic lifeand human health are measurable. TheAgency does not believe it isappropriate to promulgate insufficientlyprotective criteria (e.g., criteria equal tothe current analytical detection limits).

EPA does believe, however, that theuse of analytical detection limits areappropriate for determining compliancewith NPDES permit limits. Thishistorical view of the role of detectionlimits was recently articulated inguidance for translating dioxin criteriainto NPDES permit limits which is theprincipal method used for water qualitystandards enforcement. s This guidance

2 For a description of harmonic means see"Design Stream Flows Based on Harmonic Means,"Lewis A. Rossman, J. of Hydraulics Engineering,Vol. 116, No. 7. July, 1990. This article is containedin the record for this proposal.

3 Strategy for the Regulation of Discharges ofPHDDs and PHDFs from Pulp and Paper Mills toWaters of the United States," memorandum fromthe Assistant Administrator for Water to theRegional Water Management Division Directors andNPDES State Directors, May 21, 1990.

presents a model for addressing toxicpollutants which have criteriarecommendations less than currentdetection limits. This guidance is equallyapplicable to other priority-toxicpollutants with criteriarecommendations less than currentdetection limits. The guidance explainsthat detection limits may be used forpurposes of determining compliancewith permit limits, but not for purposesof establishing water quality criteria orpermit limits. Because under the CleanWater Act analytical detection limitsare appropriately used only inconnection with NPDES permit limitcompliance determinations, EPA has not

-considered analytical detection limits inderiving the criteria proposed today.

EPA has added provisions inparagraph (c)(3) to determine whenfresh water or saltwater aquatic lifecriteria apply. The structure of theparagraph is to establish presumptivelyapplicable rules and to allow for site-specific determinations where the rulesare not consistent with actual fieldconditions. Because a distinctseparation generally does not existbetween fresh water and marine wateraquatic communities, EPA is proposingthe following: (1) The fresh watercriteria apply at salinities of 1 part perthousand and below; (2) marine watercriteria apply at 10 parts per thousandand above; and (3) at salinities between1 and 10 parts per thousand the morestringent of the two apply unless EPAapproves another site specific criterionfor the pollutant. This proposedassignment of criteria for fresh, brackishand marine waters was developed inconsultation with EPA's researchlaboratories at Duluth, Minnesota andNarragansett, Rhode Island. The Agencybelieves such an approach is consistentwith field experience.

In paragraph (c)(4)(i) EPA hasincluded a limitation on the amount ofhardness that EPA can allow toantagonize the toxicity of certain metals(see footnote (e) in the criteria matrix inparagraph (b) of the rule). The data baseused for the Section 304(a) criteriadocuments for metals do not includedata supporting the extrapolation of thehardness effects on metal toxicitybeyond a range of hardness of 25 mg/Ito 400 mg/l (expressed as calciumcarbonate). Thus, the aquatic life valuesfor the CNC (acute) and CCC (chronic)criteria for these metals in waters with ahardness less than 25 mg/l, mustnevertheless use 25 mg/l whencalculating the criteria; and in waterswith a hardness greater than 400 mg/i,must nevertheless use 400 mg/i whencalculating the criteria.

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Subsection (d) lists the States forwhich rules are being proposed. Foreach identified State, the water usesimpacted (and in some cases the waterscovered) and the criteria proposed areidentified.H. Specific Issues for Public Comment

As is the Agency's custom, EPA wouldlike to request that particular publicreview be directed to the issues andalternatives presented in this section.Although the issues presented below areparticularly notable and worthy ofcomment, EPA encourages publiccomment on any aspect of this proposed-rule.

1. In section D of this preamble, EPAhas presented a discussion of how EPAdetermines State compliance withsection 303(c)(2)(9). The processdescribed has been the Agency's generalpractice since the beginning of the waterquality standards program, although therequirements specific to toxics criteriahave evolved over the years. Brieflystated, EPA's ten Regional officesreview the State-adopted standards toascertain compliance with the CleanWater Act using the informationdeveloped by the State and otherrelevant and available data andinformation.

For compliance with sectioX303(c)(2)(B), EPA's focus in many caseswas on the process the State used toassemble the criteria for those prioritytoxic pollutants which could reasonablybe expected to interfere with the State'sdesignated uses. For example, EPA'sreview of individual State water qualitystandards had to balance a need fornational consistency with the need toimplement the CWA scheme thatprovides for State primacy and State-specific approaches. If EPA hadinformation on a toxic pollutantsufficient to satisfy the test that thepollutant can reasonably be expected tointerfere with designated uses, and theState did not adopt sufficient,scientifically defensible criteria for thatpollutant, EPA disapproved the Stateaction as being inconsistent withSection 303(c)(2)(B). Alternativeapproaches could have had either anarrower focus on fewer priority toxicpollutants (for example, relying only onthe results of the section 304(1) short listprocess) or might have been broader,(for example, requiring most States toadopt criteria for the complete list ofpriority toxic pollutants addressed inEPA section 304(a) criteriarecommendations). EPA solicitscomment on whether the Agency'straditional review process should havebeen changed.

2. EPA's approach and rationale fordeciding which criteria to propose for aState is discussed in section E of thisPreamble. Briefly stated, EPA either: (1)Proposed to promulgate Federal criteriafor all priority toxic pollutants notacceptably addressed by approved Statecriteria (this approach is used for mostStates), or (2) proposed to promulgateFederal criteria only for specific prioritypollutants for which State criteria arelacking or insufficient (this approach isused for only a few States). EPA couldhave used other approaches and solicitspublic comment. For example, EPAcould have relied totally on the State'sown determination pursuant to section304(1) and 305(b), or entirely on anOption 1 approach of promulgating allFederal criteria for all State waters.

3. This proposed rulemaking includesproposed minimum implementationfactors for the criteria, such as flowconditions. As proposed, these factorsare dependent on existing State rulesbut subject to base values which arethose used in developing the criteria.EPA's revised TSD explains more fullythe details of these base values. EPAcould rely entirely on existing Staterules or establish the proposed Federalrules.

4. The conditions under which Stateswill be remoyed from the rule, eitherbefore or after final promulgation, aredescribed in section E.4 of thispreamble. EPA could make theconditions for removing the applicabilityof the rule to a State more or lessstringent. A difficult aspect of this issueis a definition of what the State mustadopt for EPA to withdraw theapplicability of its rule entirely. Ascurrently stated, EPA's policy is that ifthe State's standards are judged to meetthe requirements of the Act and therebyprovide adequate environmentalprotection, EPA will withdraw theapplicability of the Federal Rule as tothat State. In the context of thisproposal, the State would have todemonstrate that the criteria it adoptedmeet the statutory test of protecting thepublic health and would protectdesignated uses. State compliance couldbe by any one or a combination of the 3options described in EPA's guidance.Once such a showing were made EPAwould propose to withdraw theapplicability of its rule entirely.However, if a State fails to make such ademonstration for all pollutants, partialwithdrawals for certain pollutants couldoccur, leaving applicable parts of theFederal rule.

5. EPA must also decide whether itshould pick a uniform cancer risk levelof, for example, 10-6, for all States

included in a final rule, or whetherdifferent risk levels for different Statesare appropriate. EPA today proposes thehuman health criteria at a cancer ,isklevel of 10-0 because such a risk level isconservative for the general populationand in the generally applied risk range.However, as noted in section F.5., EPAhas approved human health risk levelsof 10- 5 in 10 States, and for somecriteria and uses risk levels of 10- 4

.

EPA's review of the explanationsprovided by the States supporting State-adopted risk levels of less than 10- 5focuses on public participation and thesupportability of the risk factorsincluded in the State's analysis.

While today's proposed action ispredicated on a 10- 6 risk level forcarcinogens, another option that thepublic should consider in icsponding tothis rule is the application of theproposed criteria at a 10- 5 risk level.EPA's rationale for proposing at a 10- 6

risk level was articulated earlier in thepreamble. fHlowever, there are severalarguments to support a less protective10-5level. The model used to calculatethe criteria for carcinogens is aconservative one and has a very lowprobability of underestimating thepotency of a carcinogen. As a result, ahigher level of accepted risk as theendpoint for criteria calculations may bereasonable. For "Class C" carcinogens,i.e., those for which the datademonstrating oncogenicity in animalstudies are most limited, a 10- 5 risklevel is closer to the criteria valuescalculated as Rfds (non-cancerendpoints of toxicity) for thesechemicals. Use of RfDs reduces thelikelihood that EPA is over-regulatingchemicals of less definitive cancerpotency. A 10- 5 risk is within the rangeof accepted risks for other major EPArulemakings which aim to protect thegeneral public, such as national drinkingwater standards.

Similarly, EPA must decide what aState must adopt in the way of a risklevel for EPA to withdraw a final rule.The question to be addressed is whetherEPA can accept less stringent risk levels(applied statewide; by individualchemicals, or by geographical sub-area)than contained in EPA's final rule ifsuch less stringent risk levels wereadopted following State administrativeprocedures and adequately supportedby the administrative record.

6. Today's proposed rulemakingincludes an Agency proposal toestablish criteria for .nly those EPApriority toxic pollutant criteria whichare based on toxic effects, The Agenc-could include other section 304(a)priority toxic pollutant criteria

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recommendations which are based onorganoleptic (i.e., taste and odor) efiects.The logic would be that thecongressional reference to "toxicpollutants" in section 303(c)(2)(B) % asthe generic list of 126 priority toxicpollutants and EPA should include allsuch criteria developed for thesepollutants rather than just those basedon toxicity. Organoleptic effects causetaste and odor problems in drinkingwater which may increase treatmentcosts or the selection by the public ofalternative but less protective sources ofdrinking water; and may cause taintingor off flavors in fish flesh and otheredible aquatic life reducing theirmarketability, thus diminishing therecreational and resource value of thewater. EPA believes that because theSection 303(c)(2)(B) focuses on toxicityof the priority toxic pollutants, EPA'sproposal should likewise focus ontoxicity.

7. EPA also invites public comment onthe merits, of promulgating a translatorprocedure (that could support derivationof new or revised chemical-specificcriteria for those priority toxicpollutants for which EPA has not issuedsection 304(a) criteria guidance] forStates in this rule to enhance State andEPA implementation of section 303(c)(2)(B). Such a procedure wouldsupplement the specific numeric criteriaincluded in this proposal. The rationalefor, and specifics of, such an approachare described below.

As discussed in previous sections ofthis preamble, CWA section 303(c)(2)(B)represents a clear congressionalmandate for State adoption of chemical-specific numeric criteria for prioritytoxic pollutants where EPA has issuedsection 304(a) criteria guidance.However, where no such criteria exist,section 303(c)(2)(B) went on to directStates that," * * * Where suchnumerical criteria are not available,whenever a State reviews water qualitystandards * * * or revises or adoptsnew standards * *, such State shalladopt criteria based on biologicalmonitoring or assessment methods

EPA's December 1988 nationalguidance provided States with threeoptions for satisfying the chemical-specific criteria requirements. Option 3of the guidance allows States to adoptand apply translator procedures. Asdescribed in section B-3 of thispreamble, such translator proceduresare defined as the methods, equations,and protocols bywhich a Statecalculates derived chemical-specificnumeric criteria for priority toxicpollutants to ensure that the State's

narrative toxics criterion is fullysatisfied.

There are several alternativeapproaches.for establishing a translatorprocedure. All approaches would utilizeEPA's criteria guidelines (i.e., for aquaticlife and human health as described insection F.1. of this preamble) as thebasis for deriving chemical-specificcriteria. They could also require EPA toperiodically issue an updated list ofderived numeric criteria and notice theavailability of the list in the FederalRegister.

One alternative would be to promulgatea mechanism for State usage only for thepollutants where EPA has not issued asection 304 (a) criteria guidancedocument.

Another alternative would be to allowcriteria revisions in specific situationswhere EPA determines that a revisedcriterion is necessary. For example, ifEPA issued a final revised estimate ofthe cancer potency slope of a prioritytoxic pollutant (i.e., by adding it to IRIS),such cancer slopes would be availablefor use in deriving new human healthcriteria for that pollutant following thetranslator procedure. Another examplewould be situations where additionaldata on the toxicity of a pollutant toaquatic life becomes available such thatthe minimum database requirements inthe EPA criteria guidelines are satisfied.In such situations, the data could beapplied to the translator procedure toderive new or revised aquatic lifecriteria more rapidly than the currentmethod of proposing for comment andthen publishing a final section 304(a)recommendation for subsequentconsideration by States. This alternativewould apply to criteria for both aquaticlife and human health protection andcould apply to pollutants for which asection 304(a) criteria recommendationexists or to those pollutants where nosuch recommendation exists.

A third approach would limit theapplicability of the translator procedureto the priority toxic pollutants for whichnumeric criteria are contained in today'sproposed rulemaking. Under thisalternative, criteria could not be derivedfor pollutants without a section 304(a)criteria recommendation using thetranslator procedure, even where: (1)Formal Agency estimates of theparameters necessary to supportderivation are issued, or (2) the datanecessary to satisfy the minimumdatabase requirements becomeavailable.

A final alternative providing onlylimited flexibility would be to limit useof the translator procedure to humanhealth criteria where the Agency issues

a final revised risk assessment for theparameter in IRIS. Such IRIS estimatesare subject to extensive intra-Agencyreview. This alternative would limprevisions to situations where EPAmakes a formal determination that arevised human health risk assessment isappropriate.

The Agency invites public commenton the environmental, programmatic andlegal aspects of including apromulgation of a criteria translatormechanism for each State in the finalissuance of this rulemaking. Comment isalso invited on the scope and details ofsuch an approach as described above.

8. EPA solicits comment on the section304(a) assessment methodology (cancerand non-cancer) used to derive humanhealth criteria for section 307(a) prioritytoxic pollutants. This methodology isdiscussed in section F of the Preamblebut is derived in the criteriamethodology published in the FederalRegister on November 26, 1980 (45 FR79347). For example, EPA has includedproposed criteria for 3 PAHs(acenaphthylene, benzo(ghi)peryleneand phenanthrene). The includedcriteria treat these PAHs as carcinogenand are based on data forbenzo(a~pyrene. The section 304(a)criteria methodology does notdistinguish, between classes ofcarcinogens and allows the use ofclosely related chemicals of similarstructure to carry the same criteriarecommendation. This methodology isbasic to the development of the humanhealth criteria proposed today.

I. Executive Order 12291Executive Order 12291 requires EPA

and other agencies to perform regulatoryimpact analyses for major regulations.Major regulations are those that imposean annual cost to the economy of $100million or more, or. meet other criteria.This is a major regulation, however, aregulatory impact analyses has beenwaived by the Office of Managementand Budget for this proposal for thereasons discussed below.

This rulemaking establishes a legalminimum standard where States havefailed to comply with the statutorymandate to adopt numeric criteria fortoxic pollutants. The impacts todischargers are no different than whatwould occur if States had acted to adopt

'their own standards. There will be acost to dischargers for complying withthese proposed new standards as thestandards are translated into specificNPDES permit limits for individualdischargers. However, for reasonsdiscussed in more detail below, ameaningful cost estimate is difficult to

58440


develop. The increased costs incurredwill depend upon the type and amountof pollutants discharged and the extentto which additional treatment needs tobe installed beyond that which isrequired to meet the generallyapplicable technology-based limitregulations. As discussed earlier in thePreamble, the control of toxic pollutantsis expected to provide societal benefitsby reducing risk to human health and toreduce ecological impacts on aquaticlife.

The general impacts on point sourcedischargers, publicly owned treatmentworks (POTWs) and nonpoint sourcesmay be described. By establishing newgoals for a waterbody, the addition ofcriteria for toxic pollutants into Statewater quality standards will affect thewasteload allocations developed foreach waterbody segment to the extentthe pollutant is actually discharged intothe stream. If the pollutant is not presentin the wastestream, the addition ofcriteria has no impact. Revisedwasteload allocations may result inadjustments to individual NPDES permitlimits for point source dischargers whichcould result in increased incrementaltreatment costs required to meet therevised water quality standards. Thesecosts will vary depending on the typesof treatment involved, the number andkind of pollutant(s) being treated, andthe controls necessary to meet thetechnologically based effluent limits fora given industry.

Compliance costs for indirectindustrial dischargers will be reflectedin increased incremental costs forPOTWs assuming that industrial sourcesare the primary source of toxicsdischarged by POTWs and that theincremental treatment costs incurred byPOTWs will be passed along to theirindustrial dischargers. Possible areaswhere the addition of criteria for toxicpollutants into State standards mayhave a cost impact include: (1) POTWexpansion, (2) operational changes, and(3) increased operator training costs.

Increased costs may also be incurredby nonpoint sources of toxic pollutantsto the extent that best managementpractices need to be modified to reflectthe revised standards. Although there isno comparable Federal permit programfor nonpoint sources as there is tocontrol point source discharges, thereare existing State regulatory programs tocontrol nonpoint sources.

Monitoring programs to generateinformation on the existing quality ofwater and the kinds and amount ofpollutants being discharged are likely tobe affected by this proposed rulemaking.However, the addition of criteria fortoxic pollutants into State standards

does not require the State to engage in aprogram to monitor for all suchpollutants unless there is somereasonable expectation that thepollutants are manufactured or actuallyused in the State with the likelihood thatthey will be discharged into surfacewaters.

While recognizing that the applicationof criteria for toxic pollutants will resultin increased treatment costs and thatsuch costs are appropriately consideredin several areas of the standards topermits process, it is important toconsider the difficulties and the largepotential uncertainties involved indeveloping meaningful cost estimatesfor purposes of this proposedrulemaking. The development ofcompliance cost estimates would requirenumerous assumptions about pollutantloadings, impacts of technology-basedregulations on loadings, combinations ofpollutants handled by a given treatmentapproach, the costs of each treatmenttrain and the variables for eachpollutant in each waterbody in eachState. There are many sources ofuncertainty in making theseassumptions, and the resulting estimatescould contain such significantestimation errors that the figures wouldhave questionable value.

This proposed rule, including theabove determination, has been reviewedby the Office of Management andBudget. Any written comments fromOMB to EPA and any EPA response tothose comments are included in thepublic record and are available forinspection.

1. Regulatory Flexibility Act

The Regulatory Flexibility Act (5U.S.C. 601 et seq., Pub. L. 96-354)requires EPA to assess whether itsregulations create a disproportionateeffect on small entities. According to theprovisions of the Act, EPA must preparean initial regulatory flexibility analysisfor all proposed regulations that have asignificant impact on a substantialnumber of small entities. There will be acost to dischargers for complying withthese standards as they are translatedinto permit limits for individualdischargers. However, for the reasonsdiscussed in the previous section, ameaningful estimate of the total cost orimpact on small entities cannot bemeaningfully computed.

This proposed regulation fills aregulatory void left by States not fullycomplying with the statute; thus, theimpact on small entities is not differentthan what would have occurred if Stateshad acted to adopt standards. Inaddition, the water quality standardsregulation provides several means (such

as adjusting designated uses, settingsite-specific criteria, or grantingvariances] to consider costs and adjuststandards to account for the impacts ondischargers.

K. Paperwork Reduction Act

The information collectionrequirements associated with thisproposed rule have been submitted forapproval to the Office of Managementand Budget (OMB) under the PaperworkReduction Act, 44 U.S.C. 3501 et seq. AnInformation Collection Request (ICR)document has been prepared by EPA(ICR No. 0988.04) and a copy may beobtained from Sandy Farmer,Information Policy Branch; EPA; 401 MSt., SW. (PM-223Y); Washington, DC20460 or by calling (202) 382-2740.

Public reporting burden for'thiscollection of information is estimated toaverage 745 hours per respondent,including time for reviewinginstructions, searching existing datasources, gathering and maintaining thedata needed, and completing andreviewing the collection information.

Send comments regarding the burdenestimate or any other aspect of thiscollection of information, includingsuggestions for reducing this burden, toChief, Information Policy Branch, PM-223Y, U.S. EPA, 401 M St., SW.,Washington, DC 20460; and to the Officeof Information and Regulatory Affairs;Office of Management and Budgct,Washington, DC 20503, marked"Attention: Desk Officer for EPA." Thefinal rule will respond to any OMB orpublic comments on the informationcollection requirements contained in th sproposal.

List of Subjects

Water quality standards, Toxicpollutants.

Dated: November 6, 1991.William K. Reilly,A dministrator.

For the reasons set out in thepreamble, part 131 of title 40 of the Codeof Federal Regulations is proposed to beamended as follows:

PART 131-WATER QUALITYSTANDARDS

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

Authority: Clean Water Act, Pub. L. 92-5(0.as amended; 33 U.S.C. 1251 et seq.

2. Section 131.36 is added to subpam Dto read as follows:

1 I lilt-. .1,4-1


§ 131.36 Toxics criteria for those statesnot complying with Clean Water Act section303(c)(2)(B)

(a) Scope. This section is not a generalpromulgation of the section 304(a)

criteria for priority toxic pollutants butis restricted to specific pollutants inspecific States.

(b) EPA's Section 304(a) Criteria forPriority Toxic Pollutants

B C

Freshwater Saltwater

Criterion CriterionCAS No. maximum continuous

concentration concentrationd (jug/L) 81 d (jig/L) B2

Criterion Criterionmaximum continuous

concentration concentrationd (p g/L) Cl d (j.g/L) C2

D

Human health (10-6 risk forcarcinogens)

For consumption of:

Water and Organismsorganisms only (j.g/L) D2(jig/L) D1

Antim ony ............................................ : ..............Arsenic .......................................................Berylflium ...........................................................Cadmium ............ . . . ............Chromium (111) ...................................................Chrom ium (VI) ..................................................Copper ..............................................................Lead ...................................................................M ercury ......................................................Nick6l .................................................................Selenium ...........................................................Silver .................................................................Thallium .............. . . . ............Zinc..................................................................Cyanide ............... . . . ............Asbestos ...........................................................2,3,7,8-TCDD (Dioxin) .....................................Acrolein .............................................................Acrylonitrile .......................................................Benzene ............................................................Brornolorm ........................................................Carbon Tetrachoride ......................................Chlorobenzene ................................................Chlorodibromomethane ....................Chloroethane ....................................................2-Chloroethylvinyl Ether ..................................Chloroform ........................................................Dichlorobrom om ethane ...................................1,1-Dichloroethane ..........................................1,2-Dichloroethane ..........................................11-Dichoroethylene .......................................1,2-Dichloropropane ........................................1,3-Dichloropropylene .....................Ethylbenzene ....................................................M ethyl Brom ide ................................................Methyl Chloride .........................M ethylene Chloride .........................................1,1,2,2-Tetrachloroethane ..............................Tetrachloreethylene .........................................Toluene .............................................................1.2-Trans-Dichloroethylene ............................1.1,1 -Tnchloroethane ......................................1, 1,2-Trichloroethane ......................................Trichloroethylene .............................................Vinyl Chloride ...................................................2-Chlorophenol ................................................2,4-Dichlorophenol ..........................................2,4-Dirnethylphenol ..........................................2-M ethyl-4.6-Dinitrophenol ..............................2.4-Dinitrophenol ..............................................2-Nitrophenol . .................................................4-Nit .phenol . .......................................3-M ethyl4-Churophenol . ............................Pentachlorophenol ...........................................Phenol ...............................................................2.4.6-Trichlorophenol ......................................Acenaphthene .................................................Acenaphthylene ..............................................Anthracene ............................................. .Benzidine .....................................................Benzo(a)Anthracene ........................................Benzo(a)Pyrane ...............................................Benzo(b)Fluoranthene ............................

7440360 4....................................................................................................................... 14 a 4300 a7440382 360 190 69 36 0.018-bc 0.14 bc7440417 ....................................................................................................................... 0.0077 ac 0.13 ac7440439 3.9 e 1.1 e 43 9.3 16 170 aj16065831 1700 e 210 e ............................................................ 33000 a 670000 a18540299 16 11 1100 50 170 a 3400 a7440508 18 e 12 e 2.9 2.9 (1300) b ............................7439921 62 e 3.2 e 220 8.5 50 ............................7439976 2.4 0.012 i 2.1 0.025 i 0.14 0.157440020 1400 e 160e 75 8.3 610 a 4600 a7782492 20 5 300 71 100 b 6800 bj7440224 4.1 e .............................. 2.3 .............................. 105 a 65000 ai7440280 ....................................................................................................................... 1.7 a 6.3 a7440666 120 e 110 e 95 86 .........................................................

57125 22 5.2 1 1 700a 220000 aj1332214 7,000,000 fibers/L k1746016 ........................................................................................................................ 0.000000013 c 0.000000014 c107028 ................................................................................. : ...................................... 320 780107131 ........................................................................................................................ 0.059 ac 0.66 ac71432 ........................................................................................................................ 1.2 ac 71 ac75252 ....................................................................................................................... . 4.3 ac 360 ac56235 ................................................................................... ..................................... 0.25 ac 4.4 ac108907 ........................................................................................................................ 680 a 21000 a124481 ........................................................................................................................ 0.41 ac 34 ac75003 .................................................................................................................................................................................

110758 ................................................................................................................................................................................67663 .......................................................................................................................5.7 ac 470 ac75274 ........................................................................................................................ 0.27 ac 22 ac75343 ................................................................................................................................................................................

107062 ........................................................................................................................ 0.38 ac 99 ac75354 ....................................................................................................................... 0.057 ac 3.2 ac78875. ....................................................................................................................... . (0.52) kc (39) kc

542756 ................................................................................................................... lO a 1700 a100414 ........................................................................................................................ 3100 a 29000 a

74839 ...................................................................................................................... 48 a 4000 a74873 ........................................................................................................................ 5.7 ac 470 ac75092 ....................................................................................................................... 4.7 ac 1600 ac79345 ........................................................................................................... . . 0.17 ac 11 a c

127184 ...................................................................................................... ......... 0.8 c 8.85 c108883 ........................................................................................................................ 6800 a 200000 a156605 ........................................................................................................................ (700) a (140000)a

71556 ........................ ......................................... ............................................. 3100 a (170000)o79005 ....................................................................................................................... 0.60 ac 42 ac79016 ........................................................................................................................ 2.7 c 81 c75014 ........................................................................................................................ 2 c 525 c95578 ....................................................................................................................... (120) a (400) a

120832 ....................................................................................................................... 93 a 790a105679 ........................................................................................................................ (540) a (2300) a534521 ........................................................ ....................................................... 13.4 76551285 .................................................................................................................. 70 a 14000 a88755 ..............................................................................................................................................................................

100027 .................................................................................................................................................................................59507 ..................................................................................................................................................................................87865 20f 13 1 13 7.9 0.28 ac 8.2 aci

108952 ....................................................................................................................... 21000 a 4600000 aj88062 ........................................................................................................................ 2.1 ac 6.5 ac83329 ...................................... ............................................................................ (1200) a (2700) a

208968 ....................................... ............................................................................. 0.0028 c 0.031 c120127 ........................................................................................................................ 9600 a 110000 a92875 ........................................................................................................................ 0.00012 ac 0.00054 ac56553 ........................................................................................................................ 0.0028 c 0.031 c50328 ........................................................................................................................ 0.0028 c 0.031 c

205992 .................................................... 0.0028 c 0.031 c

A

(#) Compound

58442

Federal Register / Vol. 56, No. 223 / Tuesday, November 19, 1991 / Proposed Rules 58443

A B C D

Freshwater Saltwater Human health (10- risk forcarcinogens)

Compound CAS No. Criterion Criterion Criterion Criterion For consumption of:maximum continuous maximum continuous

concentration concentration concentration concentration Water and Organismsd (jLg/L) BI d (jig/L) B2 d ()xg/L) CI d (jIg/L) C2 organisms

(gg/L) D1 only (Itg/L) D2

Benzo(ghi)Perylene .........................................Benzo(k)Fluoranthene .....................................Bis(2-Chloroethoxy)M ethane ..........................Bis(2-Choroethyl)Ether ...................................Bis(2-Chloroisopropyl)Ether ............................Bis(2-Ethylhexyl)Phthalate ..............................4-Brornophenyt Phenyl Ether .........................B tylbenzyl Phthalate ......................................2-Chioronaphthalene . ... ............4-Chlorophenyl Phenyl Ether .........................Chryserie .......... . ...............Dibenzo(aoh)Anthracene .................................1,2-Dichlorobenzene .......................................1,3-Dichlorobenzene .......................................1,4-Dichilorobenzene .....................................3.3'-Dichlorobe izidine ....................................Diethyl Phthalate ..............................................Dim ethyl Phthe late ..........................................Di-n- Butyl Phthalate ......................................2,4-Dinitrotoluene ............................................2,6-D initrototuene .............................................Di-n-Octyl Phthalate ........................................1,2-Diphenylhydrazine .....................................Fluoranthene ......... ..... . . ............Fluorene ............................................................Hexachlorobenzene .........................................Hexachorobutadiene ......................................Hexachlorocyclopentadiene ...........................Hexachloroethane ...........................................lndeno(1,2,3-cd)Pyrene ...................................Isophorone .......................................................Naphthalene .....................................................Nitrobenzene . .................N-Nitrosodim ethylam ine ..................................N-Nitrosodi-n-Propylam ine .............................N-Nitrosodiphenylamlne ..................................Phenanthrene ...................................................Pyrene ...............................................................1,2,4-Tdchlorobenzene ...................................Aidrin . ...................alpha-BHC ......................................................beta-BHC ..........................................................gamma-BHC .......... . . ............delta-SHC ........................................................Chlordane ................... . ............4-4"-DDT ...........................................................4,4'-D DE ........................................................4,4'-ODD ...........................................................Dieldrin ..............................................................alpha-Endosulfan ............................................beta-Endosulfan ...............................................Endosulfan Sulfate ..........................................Endrin ................................................................Endrin Aldehyde ....................................... .Heplachior ........................................................Heptachlor Epoxide ........................................PCB-1242 .........................................................PCB-1254 .......................................................PCB-1221 .........................................................PCB-1232 ............ . . . ............PCB-1248 ........................................................PCB-1260 ........... . . . .............PCB-1016 .........................................................Toxaphene .......................................................

Total No. of Criteria (h) =.............................

191242 ........................................................................................................................207089 ........................................................................................................................111911 .........................................................................................................................111444 .......................................................................................................................108601 ........................................................................................................................117817 ........................................................................................................................101553 ........................................................................................................................85687 .....................................................................................................................91587 ........................................................................................................................

7005723 .........................................................................................................................218019 ........................................................................................................................

53703 .......................................................................................................................95501 ........................................................................................................................

541731 ........................................................................................................................106467 .....................................................................................................................91941 ........................................................................................................................84662 ......................................................................................................................131113 .......................................................................................................................84742 .......................................................................................................................

121142 ........................................................................................................................606202 ..........................................................................................................117840 ........................................................................................................................122667 ........................................................................................................................206440 ................................ ...................................................................................86737 .......................................................................................................................113741 ......................................................................................................................87683 .......................................................................................................................77474 ........................................................................................................................67721 .....................................................................................................................193395 ........................................................................................................................78591 ......................................................................................................................91203 ...... ..........................................................................................................98953 ........................................................................................................................62759 ......................................................................................................................

621647 .......................................................................................................................86306 ........................................................................................................................85018 ........................................................................................................................

129000 ........................................................................................................................120821 ........................................................................................................................309002 3 g .............................. 1.3 g ..............................319846 ...................................................................................................................319857 ......................................................................................................................58899 2 g 0.08 g 0.16 g ..............................319868 ........................................................................................................................57749 2.4 g 0.0043 g 0.09 g 0.004 g50293 1.1 g 0.001 g 0.13 g 0.001 g72559 ........................................................................................................................72548 .......................................................................................................................60571 2.5 g 0.0019 g 0.71 g 0.0019 g959988 0.22 g 0.056 g 0.034 g 0.0087 g

33213659 0.22 g 0.056 g 0.034 g 0.0087 g1031078 .......................................................................................................................

72208 0.18 g 0.0023 g 0.037 g 0.0023 g7421934 ........................................................................................................................

76440 0.52 g 0.0038 g 0.053 g 0.0036 g1024573 0.52 g 0.0038 g 0.053 g 0.0036 9

53469219 ............................. 0.014 g .............................. 0.03 g11097691 .............................. 0.014 9 .............................. 0.03 g11104282 .............................. 0.014 g .............................. 0.03911141165 ......................... 0.014 g .............................. 0.03912672296 ............................ 0.014 g ............................ 0.03 g11096825 .............................. 0.014 g .............................. 0.03 912674112 ............................. 0.014 g .............................. 0.03 g8001352 0.73 0.0002 0.21 0.0002

..................... 24 29 33 27

0.0028 c 0.031 c0.0028 c 0.031 c

0.031 ac 1.4 ac1400 a 170000 81.8 ac 5.9 ac

(3000) a (5200) a(1700) a (4300) a

0.0028 c 0.03 1 c0.0028 c 0.031 c

2700 a 17000 a400 2600400 2600

0.04 ac 0.077 ac23000 a 120000 a313000 290000027008 12000 a0.11 c 9.1 c

0.040 ac300a

130080.00075 ac

0.44 ac240 a1.9 ac

0.0028 c8.4 ac

17 a0.00069 ac(0.005) ac

5.0 ac0.0028 c

960 a0.00013 ac

0.0039 ac

0.014 ac0.019 c

0.00057 ac0.00059 ac0.00059 ac0.00083 ac

0.00014 ac0.93 a0.93 a0.93 a0.76 a0.76 a

0.00021 ac0.00010 ac

0.000044 ac0.000044 ac0.000044 ac0.000044 ac0.000044 ac0.000044 ac0.000044 ac0.00073 ac

0.54 ac370 a

14000 a0.00077 ac

50 ac17000 al8.9 ac

0.031 c600 ac

1900 al8.1 ac

(1.4) ac16 ac

0.031 c11000 a

0.00014 ac0.013 ac0.046 ac0.063 c

0.00059 ac0.00059 ac0.00059 ac0.00084 ac0.00014 ac

2.0 a2.0 a2.0 a

0.81 al0.61 a1

0.00021 ac0.00011 ac

0.000045 ac0.000045 ac0.000045 ac0.000045 ac0.000045 ac0.000045 ac0.000045 ac0.00075 ac

Footnotes:a. Criteria revised to reflect current agency q " or RfD, as contained in the Integrated Risk Information System (IRIS). The fish tissue bioconcentration factor

(BCF) from the 1980 criteria documents was retained in all cases. Values In parentheses indicate that no health based criteria appeared in the 1990 documents Thecriteria in parentheses are not being proposed today but are presented as notice for inclusion in future state triennial reviews.

..... ................ ..................................


b. EPA in the Office of Research and Development's Environmental Criteria and Assessment Office prepared draft updates of criteria documents for arsenic,copper and selenium which are used instead of IRIS for this rulemaking. Each document was entitled as an "Addendum" to the prior criteria documents. Thesedocuments are available in the record for this proceeding.

c. Criteria based on carcinogenicity (10-6 risk).d. Criteria Maximum Concentration=the highest concentration of a pollutant to which aquatic life can be exposed for a short period of time (1-hour average)

without deleterious effects.Criteria Continuous Concentration=the highest concentration of a pollutant to which aquatic life can be exposed for an extended period of time (4-days)

without deleterious effects.Ag/L=micrograms per liter

e. Freshwater aquatic life criteria for these metals are expressed as a function of total hardness (mg/L), as follows (where exp represents the base e exponentialfunction). (Values displayed above in the matrix correspond to a total hardness of 100 mg/L.)

CMC.= exp{mA CCC=exp{mc

[In(hardness)] + bA) lIn(hardness)] + be}

M. bA mc bc

Cadm ium ............................................................................................................................................... ............................. 1.128 - 3.828 0.7852 - 3.490

Copper ............................................................................................................................................................................... 0.9422 - 1.464 0.8545 - 1.465

Chrom ium (111) .................................................................................................................................................................... 0- .8190 3.688 0.8190 1.561Lead .................................................................................................................................................................................... 1.273 - 1.460 1.273 - 4.705Nickel ................................................................................................................................................................................. 0.8460 3.3612 0.8460 1,1645=

Slive r .................................................................................................... .............................................................................. 1.7 2 - 6 .52 ..................... ..I............ .......

Zinc ..................................................................................................................................................................................... 0.8473 0.8604 0.8473 0.7614

f. Freshwater aquatic life criteria for pentachlorophenol are expressed as a function of pH, and are calculated as follows. (Values displayed above in the matrixcorrespond to a pH of 7.8.)

CMC= exp(1.005(pH)- 4.830) CCC=exp(1.005(pH)- 5.290)g. Aquatic life criteria for these compounds were issued in 1980 utilizing the 1980 Guidelines for criteria development. The acute values shown are final acute

values (FAV). According to the 1980 Guidelines, the acute values were intended to be interpreted as instantaneous maximum values, and the chronic values shownwere interpreted as 24-hour average values. EPA has not updated these criteria pursuant to the 1985 Guidelines. However, as an approximation, dividing the finalacute values in columns B1 and C1 by 2 yields a Criterion Maximum Concentration: No numeric changes are required for columns B2 and C2, and EPA suggestsusing these values directly as Criterion Continuous Concentration.

h. These totals simply sum the criteria in each column. For aquatic life, there are 30 priority toxic pollutants with some type of freshwater or saltwater, acute orchronic criteria proposed. For human health, there are 102 priority toxic pollutants with either "water + fish" or "fish only" criteria proposed. Note that these totalscount chromium as one pollutant even though EPA has developed criteria based on two valence states. In the matrix. EPA has assigned numbers 5a and 5b to theproposed criteria for chromium to reflect the fact that the list of 126 priority toxic pollutants includes only a single listing for chromium. Criteria enclosed inparentheses are also not included in the totals.

i. Applies to methyl mercury.j. No criteria for protection of human health from consumption of aquatic organisms (excluding water) was presented in the 1980 criteria document or in the 1986

Ouality Criteria for Water. Nevertheless, the criterion value has not been placed in parentheses, because sufficient information was presented in the 1980 document toallow a calculation of a criterion, even though the results of such a calculation were not shown in the document.

k. The criterion for asbestos is the MCL (56 FR 3526, January 30, 1991). The criteria for 1,2-dichloropropane have been derived using MCL (56 FR 3526, January30, 1991).

General notes:(1) This chart lists all of EPA's priority toxic pollutants whether or not criteria recommendations are available. Blank spaces indicate the absence of criteria

recommendations, Because of variations in chemical nomenclature systems, this listing of toxic pollutants does not duplicate the listing in appendix A of 40 CPR part423. EPA has added the Chemical Abstracts Service (CAS) registry numbers, which provide a unique identification for each chemical.

(2) The following chemicals have organoleptic based criteria recommendations that are not included on this chart (for reasons which are discussed in thepreamble): copper, zinc, chlorobenzene, 2-chlorophenol, 2,4-dichlorophenol, acenaphthene, 2,4-dimethyphenol, 3-methyl-4-chlorophenot, hexachlorocyclopentadienepentachloropheno, phenol

(3) For purposes of this rulemaking, freshwater criteria apply at salinity lavels equal to or less than 1 part per thousand (ppt); saltwater criteria apply at salinitylevels equal to or greater than 10 ppt; for waters with salinity between 1 and 10 ppt, the applicable criteria are the more stringent of the freshwater or saltwatercriteria.

(c) Applicability. (1) The criteria inparagraph (b) of this section apply to theStates' designated uses cited inparagraph (d) of this section andsupersede any criteria adopted by theState, except when State regulationscontain criteria which are more stringentfor a particular use in which case theState's criteria will continue to apply;

(2) The criteria established in thissection are subject to the State's generalrules of applicability in the same wayand to the same extent as are the othernumeric toxics criteria when applied tothe same use classifications includingmixing zones, and low flow valuesbelow which numeric standards can beexceeded in flowing fresh waters, butonly if these State general policies havebeen reviewed and approved previouslyby EPA after November 8, 1983.

[i) For all waters with approved EPAmixing zone regulations orimplementation procedures, the criteriaapply at the appropriate locationswithin or at the boundary of the mixing

zones; otherwise the criteria applythroughout the waterbody including atthe end of any discharge pipe, canal orother discharge point.

(ii) A State shall not use a low flowvalue below which numeric standardscan be exceeded that is less stringentthan the following for waters suitablefor the establishment of low flow returnfrequencies (i.e., streams and rivers):Aquatic Life

acute criteria (CMC): I Q 10 or I B 3chronic criteria (CCC): 7 Q 10 or 4 B 3

Human Healthnon-carcinogens; 30 Q 5carcinogens; harmonic mean flow

where:CMC-criteria maximum

concentration=the water quality criteria toprotect against acute effects in aquatic lifeand is the highest instream concentration of apriority toxic pollutant consisting of a one-hour average not to be exceeded more thanonce every three yebrs on the average.

CCC-criteria continuousconcentration= the Water quality criteria toprotect against chronic effects in aquaiL life

is the highest instream concentration of apriority toxic pollutant consisting of a 4-dayaverage not to be exceeded more than onceevery three years on the average.1 Q 10 is the lowest one day flow with an

average recurrence frequency of once in 10years determined hydrologically;

I B 3 is biologically based and indicates anallowable exceedence of once every 3years. It is determined by EPA'scomputerized method (DFLOW model):

7 Q 10 is the lowest average 7 consecutiveday low flow with an average recurrencefrequency of once in 10 years determinedhydrologically:

4 B 3 is biologically based and indicates anallowable exceedence for 4 consecutivedays once every 3 years. It is determinedby EPA's computerized method (DFLOWmodel):

30 Q 5 is the lowest average 30 consecutiveday low flow with an average recurrencefrequency of once in 5 years determinedhydrologically and, the harmonic meanflow is a long term mean flow valuecalculated by dividing the number of dailyflows analyzed by the sum of thereciprocals of those daily flows.

5844458444


(iii) If a State does not have such alow flow value for numeric standardscompliance, then none shall apply andthe criteria included in paragraph (d) ofthis section herein apply at all flows.

(3) The aquatic life criteria in thematrix in paragraph (b) of this sectionapply as follows:

(i) For waters in which the salinity isequal to or less than 1 part perthousand, the applicable criteria are thefreshwater criteria in Column B.

(ii) For waters in which the salinity isequal to or greater than 10 parts perthousand, the applicable criteria are thesaltwater criteria in Column C;

(iii) For waters in which the salinity isbetween I and 10 parts per thousand,the applicable criteria are the morestringent of the freshwater or saltwatercriteria. However, the RegionalAdministrator may approve the use ofalternative criteria if scientificallydefensible information and datademonstrate that on a site-specific basisthe biology of the waterbody isdominated by freshwater aquatic lifeand that freshwater criteria are moreappropriate;, or conversely, the biologyof the waterbody is dominated bysaltwater aquatic life and that saltwatercriteria are more appropriate.

(4] Application of metals criteria. (i)For purposes of calculating freshwateraquatic life criteria for metals from theequations in footnote (e) in the criteriamatrix in paragraph (b) of this section,the minimum hardness allowed for usein those equations shall not be less than25 mg/l, as calcium carbonate, even ifthe actual ambient hardness is less than25 mg/l as calcium carbonate. Themaximum hardness value for use inthose equations shall not exceed 400mg/l as calcium carbonate, even if theactual ambient hardness is greater than400 mg/l as calcium carbonate.

(ii) The hardness values used shall beconsistent with the design dischargeconditions established in pararaph (c)(2)of this section for flows and mixingzones.

(d) Criteria for SpecificJurisdictions.-{1) Connecticut, Region 1

fi) All waters assigned to thefollowing use classifications in the"State of Connecticut Water QualityStandards" adopted pursuant to section22a-426 of the Connecticut GeneralStatutes are subject to the criteria inparagraph (d)(1)(ii) of this section,without exception:l1.5.(A)-Class AA Surface Waters

.11.5.{B)--Class A and SA Surface Watersl1.5.(C)--Class B and SB Surface Waters

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the use classifications

identified in paragraph (d)(1)(i) of this

identified in paragraph (d){1}(i} of thissection:

Use classification Applicable criteria

Class AA; Class A; Class Each of theseB waters where water classifications issupply use is assigned the criteriadesignated. In:

Column B(l)-all.Column B(1)-all.Column D(l)-all.

Class B waters where This classification Iswater supply use Is not assigned the criteriadesignated. in:

Column B(l)-all.Column B(ll)-all.Column D(Il).

Class SA; Class SB ............ Each of theseclassifications isassigned the criteriaIn:

Column C(l)-all.Column C(ll)-all.Column D (11)-all.

(2) New Hampshire, Region 1(i) All waters assigned to the

following use classifications in the NewHampshire Revised Statutes AnnotatedChapter 149:3 are subject to the criteriain paragraph (d)(2)(ii) of this section,without exception:

149:3.1 Class A149:3.11 Class B149:3.111 Class C

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d](a)(i) of thissection:


Class A; Class B waters Each of thesewhere water supply use classifications isIs designated. assigned the criteria

In:Column D ()-#16.

Class B waters where Column D(1l)-#16.water supply use Is notdesignated Class C.

(3) Rhode Island, Region I(i) All waters assigned to the

following use classifications in theWater Quality Regulations for WaterPollution Control adopted underchapters 46-12, 42-17.1, and 42-35 of theGeneral Laws of Rhode Island aresubject to the criteria in paragraphd(3)(ii) of this section without exception:6.21 Freshwater

Class AClass BClass C

6.22 SaltwaterClass SAClass SBClass SC

(ii)-The following criteria from thematrix in paragraph (b) of this section

apply to the use classificationsidentified in paragraph (d)(3)(i) of thissection:


Class A; Class B waterswhere water supply useis designated.

Class 6 waters wherewater supply use is notdesignated Class C;Class SA; Class SB;Class SC.

These classifications areassigned the criteriaIn:

Column D (I)-all.Each of these

classifications isassigned the criteriain:

Column 0 (lf)-al.

(4) Vermont, Region 1(i) All waters assigned to the

following use classifications in theVermont Water Quality Standardsadopted under the authority of theVermont Water Pollution Control Act(10 V.S.A., Chapter 47) are subject to thecriteria in paragraph (d){4)(ii) of thissection, without exception:

Class AClass BClass C

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d](4)(i) of thissection:


Class A; Class B waterswhere water supply useis designated.

Class B waters wherewater supply use is notdesignated; Class C.

This classification isassigned the criteriain:

Column B(l)-all.Column 8(l)-all.Column 0(l)-all.These classifications are

assigned the criteriain:

Column B(l)-all.Column B(l)-all.Column D(l)-all.

(5) NewJersey, Region 2(i) All waters assigned to the

following use classifications in the NewJ.ersey Administrative Code (N.J.A.C.)7:9-4.1 et seq., Surface Water QualityStandards, are subject to the criteria inparagraph (d)(5)(ii) of this section,without exception:

N.J.A.C. 7:9-4.12(c): Class FW2N.I.A.C. 7:9-4.12(d): Class SE1N.1.A.C. 7:9-4.12(e): Class SF2N.1.A.C. 7:9-4.12(0: Class SE3N.J.A.C. 7:94.12(g): Class SC

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(5)(i} of thissection:

58445


Use APclassificatior plicable criteria

FW .........

SE1, SE SE3.SC.

This classification is assigned thecriteria in: Column B(1)-allexcept #102, 105. 107, 108,111, 112. 113, 115, 117, and118.

Column B(2)-all except #105,107, 108, 111, 112, 113, 115,117, 118, 119, 120. 121, 122.123, 124, and 125.

Column D(1)-all except #4, 5a,5b, 7, 10, and 11.

Column D(2)-all.These classifications are each as-

signed the criteria in:Column C()-all except #102,

105, 107, 108. 111, 112, 113,115, 117, and 118.

Column C(2)-all except #105,107, 108, 111. 112, 113, 115,117, 118, 119, 120, 121, 122,123, 124, and 125.

Column D(2)-all.

(6) Puerto Rico, Region 2(i) All waters assigned tothe

following use classifications in thePuerto Rico Water Quality Standards(promulgated by Resolution Number R-83-5-2) aie subject to the criteria inparagraph (d)(6)(ii) of this section,without exception.

Article 2.2.2-Class SBArticle 2.2.3-Class SCArticle 2.2.4-Class SD

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(6)(i) of thissection:

Useclassification Applicable criteria

Class So ............. This classification is assigned cri-teria in:

Column B()-all, except: 10, 102,105, 107, 108, 111, 112, 113,115, 117, and 126.

Column B(2)-all, except: 105,107, 108, 112, 113, 115, and117.

Column D(1)-all, except: 4, 5a,5b, 6, 7. 10, 11, 14, 105, 112,113, and 115.

Column D(2)-all, except: 4, Sa,5b, 10, 14, 105, 112, 113, and115.

Class SB, These classifications are assignedClass SC. criteria in:

Column C(1)-all, except: 4, 5b, 7.8, 10, 11, 13, 102, 105, 107.108, 111, 112, 113, 115, 117,and 126.

Column C(2)-all, except: 4. 5b,10, 13, 108, 112, 113, 115, and117.

Column D(2)-all, except: 4, 5a.5b, 10. 14, 105, 112, 113, and115.

(7) Virginia, Region 3(i) All waters assigned to the

following use classifications in the

Virginia Water Quality Standards,VR680-21 are subject to the critleria inparagraph (d){6)(ii) of this sectionwithout exception:VR680-21-08 Classes 1-VII and PWS

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(7](i) of thissection:

Use Applicable criteriaclassification

Class I ................. This classification is assigned thecriteria in:

Column C(l)-all.Column dill)-all.Column D(11)-all, except #16.

Class II ................. This classification is assigned thecriteria in:

Column B(l)-all.Column B(11)-all.Column C(l)-all.Column C(ll)-all.Column 0(l)-all, except #16.

Class Ill-VII . Each of these classifications is as-signed the criteria in:

Column B(l)-all.Column B(ll)-all.Column D(l)-all, except #16.

PWS .................... This classification is assigned theadditional criteria in:

Column D(l)-all, except #16.

(8) District of Columbia, Region 3(i) All waters assigned to the

following use classifications in Chapter11 Title 21 DCMR, Water QualityStandards of the District of Columbiaare subject to the criteria in paragraph(d)(8)(ii) of this section withoutexception:1101.2 Class C waters

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the use classification identifiedin paragraph (d)(8)(i) of this section:

Use Applicable criteriaclassification

Class C ............... This classification is assigned theadditional criteria in:

Column B(ll)-#10, 118, 126.Column D(l)-#7, 15. 16, 44. 67,

68, 79, 80, 81, 88, 114, 116,118.

Column D(l)-all.

(9) Florida, Region 4(i) All waters assigned to the

following use classifications in Chapter17-301 of the Florida AdministrativeCode (i.e., identified in Section 17-302.600) are subject to the criteria inparagraph (d)(9)(ii) of this section,without exception:Class IClass IIClass III

(ii) The following criteria from thematrix paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(9)(i) of thissection:

Useclassification Applicable criteria

Class I ................. This classification is assigned thecriteria in:

Columns B1 and B2-5(b), 6, 7, 8.9, 10, 11, 107, 111, 115, 118.and 126; and

Column Dl -all.Class II; Class This classification is assigned theIlI (marine). criteria in:

Columns Cl and C2-2, 6, 7, 8, 9.11, 13, 14, 111, 115, 118, and126; and

Column D2-all.Class III This classification is assigned the

(freshwater). criteria in:Columns B1 and 82-5(b), 6. 7, 8,9, 10, 11, 107, 111, 115, 118,and 126; and

Column D2-all.

(10) Michigan, Region 5(i) All waters assigned to the

following use classifications in theMichigan Department of NaturalResources Commission General Rules, R323.1043 Definitions; A to N, (i.e.,identified in Section (g) "Designateduse") are subject to the criteria inparagraph (d)(10)(ii) of this section,without exception:

(A) Industrial water supply(B) Agricultural water supply(C) Public water supply(D) Recreation(E) Fish, other aquatic life, and

wildlife(F) Navigation(ii) The following criteria from the

matrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(1b)(i) of thissection:


Public water supply . This classification is as-signed the criteria in:Column B (I)-all,Column B (1l)-all,Column D ()-all.

All other These classifications are as-designations. signed the criteria in:

Column B (I)-all,Column B (1)-all, andColumn D (11)-all.

(11) Arkansas, Region 6(i) All waters assigned to the

following use classification in Section4C (Waterbody uses) identified inArkansas Department of PollutionControl and Ecology's Regulation No. 2as amended and entitled, "RegulationEstablishing Water Quality Standards

58446


for Surface Waters of the State ofArkansas" are subject to the criteria inparagraph (d)(11)(ii) of this section.without exception:

(A) Extraordinary Resource Waters(B) Ecologically Sensitive Waterbody(C) Natural and Scenic Waterways(D) Fisheries:(1) Trout(2) Lakes and Reservoirs(3) Streams(i) Ozark Highlands Ecoregion(il Boston Mountains Ecoregion(iii) Arkansas River Valley Ecoregion(iv) Ouachita Mountains Ecoregion(v) Typical Gulf Coastal Ecoregion(vi) Spring Water-influenced Gulf

Coastal Ecoregion(vii) Least-altered Delta Ecoregion(viii) Channel-altered Delta Ecoregion

Domestic Water Supply(ii) The following criteria from the

matrix in paragraph (b) of this sectionapply to the use classification identifiedin paragraph (d)(11)(i) of this section:

Use classification f Applicable criteria

Extraordinaryresource waters

Ecologically sensitivewaterbody

Natural and scenicwaterways

Fisheries:(1) Trout(2) Lakes and

reservoirs(3) Streams(a) Ozark

highlandsecoregion

(b) Bostonmountainsecoregion

(c) Arkansas rivervalley ecoregion

(d) Ouachitamountainsecoregion

(e) Typical gulfcoastalEcoregion

(f) Spring water-influenced gulfcoastalecoregion

(g) Least-alteredDelta ecoregion

(h) Channel- These uses are each as-altered Delta signed the criteria inecoregion. Column 81-# 2, 4, 5a,

5b, 6. 7, 8, 9, 10. 11, 13.14.

Column B2-# 2. 4, 5a. 5b.6, 7,8, 9, 10, 13, 14.

Column D2-all.Domestic water This use is assigned the cri-

supply teria in:Column D-all.

(12) Louisiana, Region 6(i) All waters assigned to the

following use designations in theLouisiana Administrative Code, Title33-Environmental Quality, Part IX-

Water Quality Regulations, Chapter 11(i.e., identified in Section 1111 WaterUse Designations) are subject to thecriteria in paragraph (d)(12)(ii) of thissection, without exception:

(A) Public Water Supply(B) Fish and Wildlife Propagation(C) Oyster Propagation(ii) The following criteria from the

matrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(12)(i) of thissection:


Public water supply . This classification is as-signed the criteria in:Column D(I)-#16.

Fish and wildlife These classifications are as-propagation. signed the criteria in:

Column D(11) #16.Oyster propagation Column D(I) #16.

(13) Kansas, Region 7(i) All waters assigned to the

following use classification in theKansas Department of Health andEnvironment regulations, K.A.R. 28-16-28b through K.A.R. 28-16-28f, aresubject to the criteria in paragraph(d)(13)(ii) of this section, withoutexception.

Section 28-16-28d:Section (2}(A)-Special Aquatic Life Use

WatersSection (2)(B}-Expected Aquatic Life Use

WatersSection (2)(C)-Restricted Aquatic Life Use

WatersSection 3-Domestic Water SupplySection (6)(c)-Consumptive Recreation

Use.(ii) The following criteria from the

matrix is paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(13}(i) of thissection:


Sections (2)(A), These classifications are(2)(B), (2)(C), 6(C). each assigned all criteria

in:Column B(l), except #9. 13,

102, 105. 107, 108. 111-113, 115,.117. and 126;

Column B(11), except #9 13,105, 107, 108, 111-113,115, 117, 119-125, and126; and

Column D(11), except #9, 10,112. 113, and 115.

Section (3) .................... This classification is as-signed all criteria in:

Column D(l), except #9, 10,12,112, 113, and 115.

(14) Colorado, Region 8(i)(A) All waters assigned to the

following use classifications in the

Colorado Classifications and NumericStandards for the following Basins:

(1) Arkansas River Basin-3.2.0 (5COR1002-8);

(2) Upper Colorado River Basin andNorth Platte River Basin (PlanningRegion 12)-3.3.0 (5CCR 1002-8);

(3) San Juan and Dolores RiverBasins-3.4.0 (5CCR 1002-8);

(4) Gunnison and Lower Dolores RiverBasins-3.5.0 (5CCR 1002-8);

(5) Rio Grande River Basin 3.6.0(5CCR 1002-8);

(6) Lower Colorado Basin-3.7.0(5CCR 1002-8);

(7) South Platte River Basin, LaramieRiver Basin, Republican River Basin.Smoky Hill River Basin-3.8.0 (5CCR1002-8);are subject to the criteria in paragraph(d)(14)(ii) of this section, except whereonly particular segments require criteriaas delineated in paragraph (d)(14)(ii) ofthis section.

The following are the useclassifications:

(1) Domestic Water Supply(2) Class 1-Cold Water Aquatic Life(3) Class 2-Cold Water Aquatic Life(4) Class 1-Warm Water Aquatic

Life(5) Class 2-Warm Water Aquatic

Life(ii) The following criteria from the

matrix in paragraph (b of this sectionapply to the use classifications inparagraph (d)(14)(i) of this section:


Domestic watersupply.

Class 1 Cold WaterA.L.

Class 2 Cold WaterA.L

Class 1 Warm WaterA.L.

Class 2 Warm WaterA.L..

All waters assigned to thisuse classification are sub-joct to the criteria in:

Column D(l)-all except #4.5a, 5b, 6, 7, 10, 11, 22,33, 39, 41, 44, 53, 66. 77,90, 95, 115.

All waters assigned to theseuse classifications are sub-ject to the criteria in:

Column B(I)-#10.Column B(l)-#10.Column D(11)-all and the fol-

lowing specific segments(which have been as-signed one of those squat-ic'life uses) are further as-signed the criteria set forthbelow.

1. The criteria in: B(I]-#2. 4. 5a, 5b. 6. 7. 8,9, 11, 13, 14; B(l)-#2, 4, 5a, 5b, 0, 7, 8. 9, 13.14 are assigned to the following specificsegments:

# Basin 3.2.0

5a447


Upper Arkansas River Basin: segments 14.26

Middle Arkansas River Basin: segments 4,13,18

Fountain Creek Basin: segments 3a, 8Lower Arkansas River Basin: segments 2.

6b, 13Cimarron River Basin: segment 1

" Basin 3.3.0Blue River Basin (140100021: segments 5, 20Eagle River Basin (14010003): segment 11North Platte River Basin (1018001,

10180002): segment 7Yampa River Basin (14050001, 14050002):

segment 12" Basin 3.4.0

San Juan River Basin: segments 3, 10. 11Piedra River Basin: segment 6Los Pinos River Basin: segment 6Animas and Florida River Basin: segment

13bLa Plata River, Mancos River, McElmo

Creek and San Juan River Basin inMontezuma County and DoloresCounties: segments 3, 6, 8

Dolores River Basin: segment 11" Basin 3.5.0

Upper Gunnison River Basin: segments 6b,16, 28, 32

North Fork of the Gunnison River Basin:segment 6, 10

Upcomphgre River Basin: segments 10. 12.Lower Gunnison River Basin: segment 4San Miguel River Basin: segment 12Lower Dolores River Basin: segment 4

" Basin 3.6.0Rio Grande River Basin: segments 15b, 25Closed Basin-San Luis Valley: segment 3

" Basin 3.7.0Lower Yampa River/Green River Basin:

segments 3a, 3b, 6, 14, 17, 20White River Basin: segments 5, 9, 13a, 22Lower Colorado River Basin: segments 11b,

lie, 13" Basin 3.8.0

Republican River Basin: segments 6, 7South Platte River Basin (Region 1):

segment 2Cache La Poudre River Basin: segments 8,

13Big Thompson River Basin: segments 6, 10South Platte River Basin (Region 21:

segment 3St. Vrain Creek Basin: segment 6Boulder Creek Basin: segments 8, 11Big Dry Creek Basin: segment 1Clear Creek Basin:. segments 8, 16, 18Cherry Creek Basin: segment 4South Platte River Basin (Regions 2, 3, 4]:

segments 7a, 11a, 16South Platte River Basin (Region 3 and 4):

segment 72. The criteria in: Column B(l)--#9; Column

B(It---#9 are assigned to the followingspecific segments:* Basin 3.3.0

Blue River Basin (14010002): segment 12* Basin 3.4.0

Animas and Florida River Basin: segment15

La Plata River, Mancos River, McElmoCreek and San Juan River Basin inMontezuma County and DoloresCounties: segment 9

• Basin 3.8.0Big Thompson River Basin: segment 13

Boulder Creek Basin: segments 4c, 6Clear Creek Basin: segment 12Bear Creek Basin: segments 4a, 5South Platte River Basin (Region 2, 3, and

4): segment 7b3. The criteria in: Column B(l-#8; Column

B(ll)---t8 are assigned to the followingspecific segments:" Basin 3.7.0-Lower Colorado River Basin:

segment 4" Basin 3.8.0-South Platte River Basin

(Region 2, 3, and 4): segment 11b4. The criteria in: Column B(l)-#14;

Column B(Il)-#14 are assigned to thefollowing specific segment:* Basin 3.2.0-Upper Arkansas River Basin:

segment 8b5. The criterion in: Column B(l)-#11 is

assigned to the following specific segment:* Basin 3.7.0-Lower Colorado River Basin:

segment 4.

(15) Arizona, Region 9(i) All waters assigned the use

classifications in chapter 21 of theArizona Administrative Code (AAC)'which are referred to in paragraph(d)(15)(ii) of this section, are subject tothe criteria in paragraph (d)(15)(ii) ofthis section, without exception. Thesecriteria amend the existing Statestandards contained in chapter 21 of theAAC sections R9-21-101 through 304,Water Quality Standards for Waters ofthe State, for the toxic pollutantsidentified in paragraph (d)(15)(ii) of thissection. For purposes of this action, thespecific standards to be applied arebased on the following selected usedesignations as defined in chapter 21,AAC § § R9-21-101 through R9-21-304:

(A) DWS-Domestic Water Source(B] A&W-Aquatic & Wildlife

(including any aquatic lifedesignation)

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the water and useclassifications defined in paragraph(d)(15)(i) of this section and identifiedbelow:

Water and use Applicable criteriaclassification

Waters of the State withA&W but without DWS.

Waters of the State withA&W and DWS.

Those waters areassigned the criteriain:

Column 81-allpollutants.

Column B2-allpollutants.

Column D2-allpollutants.

These waters areassigned the criteriain:



Column D-allpollutants.


Waters of the State withDWS but without A&W.


Column Dr -allpollutants.

.(16) California, Region 9(i) All waters assigned any aquatic

life or human health use classificationsin the Water Quality Control Plans forthe various Basins of the State ("BasinPlans"), as amended, adopted by theCalifornia State Water ResourcesControl Board ("SWRCB"), except forocean waters covered by the WaterQuality Control Plan for Ocean Watersof California ("Ocean Plan"] adopted bythe SWRCB with resolution Number 90-27 on March 22, 1990, are subject to thecriteria in paragraph (d)(16)[ii) of thissection, without exception. Thesecriteria amend the portions of theexisting State standards contained inthe Basin Plans. More particularly thesecriteria amend water quality criteriacontained in the Basin Plan Chaptersspecifying water quality objectives (theState equivalent of federal water qualitycriteria) for the toxic pollutantsidentified in paragraph (d)(16)(ii) of thissection. Although the State has adoptedseveral use designations for each ofthese waters, for purposes of this action,the specific standards to be applied inparagraph (d){16)(ii) of this section arebased on the presence in all waters ofsome aquatic life designation and thepresence or absence of the MUN usedesignation (Municipal and domesticsupply). (See Basin Plans for moredetailed use definitions).

(ii) The following criteria from thematrix in paragraph (b] of this sectionapply to the water & use classificationsdefined in paragraph (d)(16)(i) of thissection and identified below:

Water and use = Applicable criteriaclassification

Waters of the statedefined as bays orestuaries except theSacramento-SanJoaquin Delta and SanFrancisco Bay.


Column Bl-allpollutants.


Column Cl-allpollutants.

Column C2-allpollutants.

Column D2-allpc"jtants

m r i i

58448


Water and useclassification Applicable criteria

Waters of theSacramento-SanJoaquin Delta andwaters of the statedefined as inland (i.e.,all surface waters ofthe state not bays orestuaries or ocean)that include a MUNuse designation exceptthe San Joaquin Riverfrom the mouth of theMerced River toVernalis and theSacramento River andits tributaries upstreanfrom Hamilton City.

Waters of the statedefined as inlandwithout an MUN usedesignation exceptwaters flowing toGrasslands WaterDistrict, San LuisNational WildlifeRefuge and Los BanosState Wildlife Area.

Waters of the SanJoaquin River from themouth of the MercedRiver to Vemalis.

Waters of theSacramento River andits tributaries upstrearrfrom Hamilton City.

Waters flowing toGrasslands WaterDistrict. San LuisNational WildlifeRefuge, and LosBanos State WildlifeArea.

Waters of San FranciscoBay.




Column D-allpollutants.






Column 81-allpollutants except #10.


Column Di-allpollutants except #10.

These wates areassigned the criteriain:

Column 81-allpollutants except #4,6,13.

Column B2-allpollutants except #4,6, 13.

Column 01-allpollutants except #4.




Co!umn D2-allpollutants except #10.




Column Cl-allpollutants except #10.

Column C2-allpollutants except # 10.


(17) Nevada, Region 9(i) All waters assigned the use

classifications in chapter 445 of theNevada Administrative Code (NAC),Nevada Water Pollution ControlRegulations, which are referred to inparagraph (d)(17)(ii), of this section, aresubject to the criteria in paragraph

(d)(17)(ii) of this section, withoutexception. These criteria amend theexisting State standards contained inthe Nevada Water Pollution ControlRegulations. More particularly, thesecriteria amend or supplement the tableof numeric standards in NAC 445.1339for the toxic pollutants identified inparagraph (d)(17)(ii) of this section.

(ii) The following criteria from thematrix in paragraph (b) of this sectionapply to the waters defined in paragraph(d)(16)(i) of this section and identifiedbelow:


Waters that the State These waters arehas included in NAC assigned the criteria445.1339 where in:municipal or domestic Column Bl-pollutantsupply is a designated #118.use. Column B2-pollutant

#118.Column 01-pollutants

15, 16, 18, 19, 20, 21,23, 26, 27. 29. 30. 34,35, 36, 37, 38, 42, 43,55, 57-64, 66, 73, 74,78, 82, 85, 87-89, 91,92, 96, 98-100, 103,104, 105, 114. 116,117, 118.

Waters that the State These waters arehas included in NAC assigned the criteria445.1339 where in:municipal or domestic Column B1-pollutantsupply is not a #118.designated use. Column 82-pollutant

#118.

Column D2-allpollutants except #2.

(18) Hawaii, Region 9(i) All waters assigned the use

classifications in the existing Statestandards ("State Standards") which arereferred to in paragraph (d)(18)(ii) of thissection, are subject to the criteria inparagraph (d)(18)(ii) of this section,without exception. These criteria amendthe existing State standards.Specifically, these criteria supplementthe table of numeric standards for toxicpollutants applicable to all of Hawaii'swaters in section 11-54-04(b)(3).



Waters of the Stateassigned to ClassesAA, A, 1, and 2.


Column D2-pollutants#3, 8.


'Waters of the State These waters areassigned to'Classes assigned criteria in:AA and A. Column Cl-pollutant

#6.Column C2-pollutants

#6, 7, 8.

(19) Conmon wealth of the Northern

Mariana Islands. Region 9(i) All waters assigned the use

classifications in the existingCommonwealth of the Northern MarianaIslands Marine and Fresh Water QualityStandards ("Standards") which arereferred to in paragraph [d)(19)(ii) of thissection, are subject to the criteria inparagraph (d)(19)(ii) of this section,without exception. These criteria amendthe existing standards. Specifically,these criteria supplement the table ofnumeric standards in part 7.10 of theStandards.


Water and use Applicable criteriaclassification A

Fresh surface waters ofthe Commonwealthassigned to classes 1and 2.

Marine waters of theCommonwealth toclasses AA and A..


Column DI-allpollutants.

Column B1-pollutants#53, 108, 118.

Column 82-pollutants#53, 108, 118.


Column D2-allpollutants.

Column Cl-pollutants#53, 108, 118.

Column C2-poliutan(s#53, 108, 118.

(20) Alaska, Region 10(i) All waters assigned to the

following use classifications in theAlaska Administrative Code (AAC),chapter 18 (i.e., identified in 18 AAC70.020) are subject to the criteria inparagraph(d)(20)(ii) of this section,without exception:

70.020.(1)(A) .............. Fresh water.Water supply.

(i) Drinking, culinary, anofood processing,(ii) Aquaculture;

70.020.(1)(B) .............. Water recreation.(i) Contact recreation,(ii) Secondary recreation;

70.020.(1)(C) .............. Growth and propagation offish, shellfish, other aquati-life. and wildlife.

I '11 I __ 2--"" ...... i __.__1,.--. .....

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70.020.(2)(A) . Marine water.Water supply.

(i) Aquaculture,(it) Seafood processing,

70.020.(2)(8) .............. Water recreation.(1) Contact recreation,(ii) Secondary recreation;

70.020.(2)(C) .............. Growth and propagation offish, shellfish, other aquaticlife, and wildlife;

70.020.(2)(D) .............. Harvesting for consumption ofraw mollusks or other rawaquatic life.

(ii) The following criterta from thematrix in paragraph (b) of this sectionapply to the use classificationsidentified in paragraph (d)(20)(i) of this

section:


(1)(A)i ... ......................... .....

.....A.i...................

(1() ............................

(1(~ i............ ...................

(1)(C) This classificationis assigned the criteriain:.

Same as for (1)(B)(nm .........

This classification isassigned tho criteriain:

Column D()-#'s 9, 10,53.

Column D(l)-humanhealth carcinogens:#'s 2, 3, 16, 18, 19.20, 21. 23, 26, 27, 29,30, 35, 36, 37, 42, 43,44, 55, 57-64, 66, 68.73, 74, 78, 82, 85,.67,88, 89, 91, 92, 96, 97,98, 99,100,102-111,117-126.


Same as for (1)(A)i(above) plus:

Column B(l)-all.Column B(l)-#'s 9, 10,

13, 53.This classification is


Same as for (1)(A)iabove.


Column B()-all.Column B(il)-#'s 9, 10,

13, 53.Column D(l)-#'s 9, 10,

53.Column Dill) human

health carcinogens:#'s 2. 3, 16. 18, 19,20, 21, 23, 26, 27, 29,30, 35, 36, 37, 42, 43,44. 55, 57-64, 66, 68,73, 74, 78, 82, 85, 87.88. 89. 91, 92, 96. 97,98, 99, 100,102-111,117-126


.(2)(A)i .................................. This classification isassigned the critenain:

Column C(l)-all.Column C(l)-#'s 9, 10,

13, 53.Column D(li)-#'s 9, 10,

53.Column D(l)-human

health carcinogens:#'s 2, 3, 16, 18, 19,20, 21, 23, 26, 27, 29,30, 35, 36, 37. 42, 43,44, 55, 57-64, 66. 68,73, 74, 78, 82. 85, 87,88, 89, 91, 92, 96, 97,98, 99, 100, 102-111,117-126

(2)(A)i ... ........... ........... This classification isassigned the criteriain:

Column C(l)-all.Column C(ll)-only for

#'s 9, 10, 13, 53.(2)(B)i & ii .................. These classifications are


Column Dill) for #'s 9,10, 53.

Column D(11)-humanhealth carcinogens:#'s 2, 3, 16, 18, 19,20, 21, 23, 26, 27. 29,30, 35, 36, 37, 42, 43,44, 55, 57-64, 66, 68,73, 74, 78, 82, 85, 87,88, 89, 91, 92, 96, 97.98, 99, 100. 102-111,117-126.

(2)(C) and (2)(D) ................. These classifications areassigned the criteriain:

Same as for (2)(A)i.

(21) Idaho, Region 10(i) All waters assigned to the

following use classifications in theIdaho Administrative Procedures Act(IDAPA), chapter 16 (i.e., identified inIDAPA 16.01.2100,02-16.01.2100,07) aresubject to the criteria in paragraph(d)(21)(ii) of this section, withoutexception:

16.01.2100.02.16.01.2100,03.16.01.2100,04.16.01.2100.05.16.01.2100,06.16.01.2100,07.

Domestic Water Supplies.Cold Water Biota.Warm Water Biota.Salmonid Spawning.Primary Contact Recreation.Secondary Contact Recreation.



02 .................................. This classification is as-signed the criteria in:Column D(l)-all except

#'s 4, 5, 7, 10, 11. 14,115.


03, 04 and 05 ............. These classifications are as-signed the criteria in:Column B(l)-al.Column B(11)-all.Column D(l)-all.

06 ................................. This classification is as-signed the criteria in:Column B(l)-all.Column 8(il)-all.

07 ................................. This classification is as-signed the criteria in:Column B(l)-all.Column B(11)-all.Column D(11)-all.

(22) Washington, Region 10(i) All waters assigned to the

following use classifications in theWashington Administrative Code(WAC), chapter 173-201 (i.e., identifiedin WAC 173-201-045) are subject to thecriteria in paragraph (d)(22)(ii) of thissection, without exception:

173-201-045. Class AA water supplies.Class A.Class B.Class C.Lake class.


Use classification

AA and A .....................

B and C ......................

Lake class ....................

Applicable criteria

These classifications are as-signed the criteria in:Column D(t)-all.Column D(l)-all.Columns 8(l), B(11), C(l),

and C(l): all except #'s4, 5a&b, 7, 8, 9, 11, 13,53, 108, 109, 110. 115,117, 119-126

These classifications are as-signed the criteria in:Same as for AA and A

except do not includeColumn D(l).

This classification is as-signed the criteria in:Same as for AA and A

except do not includeColumns C(l), C(1) orD0().

(Note.-The following appendix will nolappear in the Code of Federal Regulations.)

Appendix to Preamble of Today'sProposal

I. Introduction

The purpose of this appendix is toprovide background information andfurther explanation of today's proposedrulemaking. Two major topics arediscussed. The first topic concerns thedetailed assumptions and rules followed

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by EPA in writing the State-specificproposed regulatory requirements (i.e.,the water quality uses and criteria)contained in proposed section§ 131.36(d). The second topic concernsEPA's rationale for proposing the§ 131.36(d) requirements. Separate,customized rationales are provided foreach jurisdiction included in the waterquality standards program (i.e.. asdefined by 40 CFR 131.3(j)).

I. Assurnntons and Rules Followed byEPA in Writing the Proposed Section131.36(d) Requirements for ollJurisdictions

The "rules" followed by EPA inwriting the proposed § 131.36(d)requirements for all jurisdictions are asfollows:

1. No criteria are proposed for Stateswhich have been fully approved by EPAas complying with the section303(c)(2)(B) requirements.

2. For States which have not beenfully approved, if EPA has notpreviously determined which specificpollutants/criteria/ waterbodies arelacking from a State's standards (i.e., aspart of an approval/disapproval actiononly), all of the criteria in Columns B, C,and D of the proposed.§ 131.36(b) matrixare proposed for statewide applicationto all appropriate designated uses,except as provided for elsewhere inthese rules. That is, EPA proposes tobring the State into compliance withsection 303(c)(2)(B) via an approachwhich is comparable to option 1 of theDecember 1988 national guidance forsection 303{c)(2)(B).

3. If EPA has previously determinedwhich specific pollutants/criteria/waterbodies are needed to comply withCWA section 303(c)(2)(B) (i.e., as part ofan approval/disapproval action only),the criteria in proposed § 131.36(b) areproposed for only those specificpollutants/criteria/waterbodies (i.e.,EPA proposes to bring the State intocompliance via an approach which iscomparable to option 2.of the December1988 national guidance for section303(c)(2)(13).

4. For aquatic life, except as providedfor elsewhere in these rules, all waterswith designated aquatic life usesproviding even minimal support toaquatic life are included in the proposedrule (i.e., fish survival, marginal aquaticlife, etc.).

5(a). For human health, except asprovided for elsewhere in these rules, allwaters with designated uses providingfor public water supply protection (andtherefore a potential water consumptionexposure route) or minimal aquatic lifeprotection (and therefore a potential fish

consumption exposure route) areincluded in the proposed rule.

5(b). Where a State has determinedthe specific aquatic life segments whichprovide a fish consumption exposureroute (i.e., fish or other aquatic life arebeing caught and consumed) and EPAapproved this determination as part of astandards approval/disapproval action,the proposed rule includes the fishconsumption (Column D(II)) criteria foronly those aquatic life segments, exceptas provided for elsewhere in these rules.In making a determination that certainsegments do not support a fishconsumption exposure route, a Statemust complete and EPA must havepreviously approved, a use attainabilityanalysis consistent with the provisionsof 40 CFR part 131.10(j). In the absenceof such an approved Statedetermination, EPA has proposed fishconsumption criteria for all aquatic lifesegments.

6. Uses/Classes other than thosewhich support aquatic life or humanhealth are not included in the proposedrulemaking (e.g., livestock watering,industrial water supply), unless they aredefined in the State standards as alsoproviding protection to aquatic life orhuman health (i.e., unless they aredescribed as protecting multiple usesincluding aquatic life or human health).For example, if the State standardsinclude a use such as industrial watersupply, and in the narrative descriptionof the use the State standards indicatethat the use includes protection forresident aquatic life, then this use isincluded in the proposed rulemaking.

7. For human health, the "water +fish" criteria in Column D(I) of§ 131.36(b) are proposed for allwaterbodies where public water supplyand aquatic life uses are designated,except as provided for elsewhere inthese rules (e.g., rule 9).

8. If the State has public watersupplies where aquatic life uses havenot been designated, or public watersupplies that have been determined notto provide a potential fish consumptionexposure pathway, the "water + fish"criteria in Column D(I) of § 131.36(b) areproposed for such waterbodies, exceptas provided for elsewhere in these rules(e.g., rule 9).

9. EPA is generally not proposingcriteria for priority toxic pollutants forwhich a State has adopted criteria andreceived EPA approval. The exceptionsto this general rule are described inrules 10 and 11.

10. For priority toxic pollutants wherethe State has adopted human healthcriteria and received EPA approval, butsuch criteria do not fully satisfy section303(c)(2)(B) requirements, the proposed

rule includes human health criteria forsuch pollutants. For example, consider acase where a State has a water supplysegment that poses an exposure risk tohuman health from both water and fishconsumption. If the State has adopted,and received approval for, human healthcriteria based on water consumptiononly (e.g., Safe Drinking Water ActMaximum Contaminant Levels (MCLs))which are less stringent than the "water+ fish" criteria in Column D(l) ofproposed § 131.36(b), the Column D(l)criteria are proposed for those watersupply segments. The rationale for thisis to ensure that both water and fishconsumption exposure pathways areadequately addressed and human healthis fully protected. If the State hasadopted water consumption only criteriawhich are more stringent or equal to theColumn D(1) criteria, the "water + fish"criteria in Column D(I) criteria are notproposed.

11. For priority toxic pollutants wherethe State has adopted aquatic lifecriteria and received EPA approval, butsuch criteria do not fully satisfy section303(c)(2)(131 requirements, the proposedrule includes aquatic life criteria forsuch pollutants (e.g., because previouslyapproved State criteria do not reflectcurrent science contained in revisedcriteria documents and other guidancesufficient to protect all designated usesor human health exposure pathways).For example, if the State has adoptednot-to-be-exceeded aquatic life criteriawhich are less stringent than the 4-dayaverage chronic aquatic life criteria in§ 131.36(b) (i.e., in Columns B(ll) andC(1I)), the acute and chronic aquatic lifecriteria in § 131.36(b) are proposed forthose pollutants. The rationale for this isthat the State-adopted criteria do notprotect resident aquatic life from bothacute and chronic effects, and thatfederal criteria are necessary to fullyprotect aquatic life designated uses. Ifthe State has adopted not-to-be-exceeded aquatic life criteria which aremore stringent or equal to the chronicaquatic life criteria in § 131.36(b), theacute and chronic aquatic life criteria in§ 131.36(b) are not proposed for thosepollutants.

12. Under certain conditions discussedin rules 9, 10, and 11, criteria listed in§ 131.36(b) are not proposed for specificpollutants; however, EPA made suchexceptions only for pollutants for whichcriteria have been adopted by the Stateand approved by EPA, where suchcriteria are currently effective underState law and fully satisfy section303(c)(2)(B) requirements.

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III. State-by-State Summary Informationand Rationale

EPA's jurisdiction-specific rationalefor the § 131.36(d) requirements isdescribed below. In addition, allproposed § 131.36(d) requirementsconform to the rules specified in theprevious section of this appendix.

Region 1

Connecticut is included in today'sproposal because the State has notadopted any criteria for priority toxicpollutants, either before or in responseto the statutory requirement, and EPAhas reason to believe that at least somecriteria are necessary to comply withsection 303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Connecticut's actions to respond tothe 1987 section 303(c)(2](B) requirementcan be summarized as follows.-August, 1990. Draft WQS revisions

were submitted to EPA by the State.In this draft revision the Stateproposed adopting criteria for allpriority pollutants for fresh wateraquatic life and human healthprotection. No criteria were proposedfor marine waters.

-December, 1990. EPA Region I notifiedConnecticut that adoption of criteriafor marine waters is necessary toachieve compliance with section303(c)(2)(B).This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously-approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously-approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:

-Priority toxic pollutants on the StateSection 304(1) short list for whichState criteria have not been adoptedand approved.

-State efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but not,completed) efforts to adopt new orrevised chemical-specific, numericcriteria for 34 priority toxic pollutants.These efforts represent evidence ofthe State's recognition of the need fornumeric criteria for these prioritytoxic pollutants.

-Presence in surface waters of theState of priority pollutants for whichsufficient State numeric criteria havenot been adopted, based on surfacewater monitoring data in STORET.

-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.

.- Long Island Sound study conducted aspart of the National Estuaries Programwhich indicates presence of prioritypollutants in Long Island Sound.Maine has not been included in

today's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-June 1990. Legislative adoption of all

EPA issued section 304(a)(1) criteriaby reference.

-December 20, 1990. EPA approved theadopted State criteria.EPA fully approved the criteria for

priority toxic pollutants adopted byMaine in June of 1990 as beingconsistent with option 1 of theDecember 12, 1988 section 303(c)(2)(B)guidance document.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B) it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Massachusetts has not been includedin today's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

Massachusetts' actions to respond tothe 1987 section 303(c)(2)(B) requirementcan be summarized as follows:-Massachusetts adopted revised

standards on July 23, 1990. The Stateadopted the section 304(a)(1) criteriafor aquatic life protection in fresh andmarine waters.

-Massachusetts toxicity control policyadopted with the standardsincorporates a 10-6 risk level.

-December 20, 1990. EPA fullyapproved the Massachusetts toxicscriteria as fully satisfying therequirements of section 303(c)(2(B).EPA fully approved the criteria for

priority toxic pollutants adopted byMassachusetts as being consistent withoption I of the December 12, 1988 section303(c)(2)(B) guidance document.

If additional information is submitted(luring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B) it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

New Hampshire is included in today'sproposal because although the Stateadopted numeric criteria for somepriority toxic pollutants before the 1987amendments, the State has notcompleted a review of their numericcriteria for priority toxic pollutants inresponse to the statutory requirementand EPA has reason to believe that atleast some additional criteria arenecessary to comply with section

5845?


303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

New Hampshire's actions to respondto the 1987 section 303fc)(2)(B)requirement can be summarized asfollows:-August 1990. The State adopted water

quality standards revisions followingan option 1 approach using EPAnational criteria for all pollutants.New Hampshire used a 10-6 riskassumption for human healthprotection for all pollutants except2,3,7,8-TCDD for which a risk level of10- 5 was assumed.

-December 19, 1990. The revised toxicscriteria adopted by the State wereapproved with the exception of thehuman health criteria for dioxin,which was disapproved.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B. Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and the

need for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-State efforts since 1987 to adopt

additional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for 126 priority toxicpollutants. These efforts representevidence of the State's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.


-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory data base and/orthe Permit Compliance System database.Rhode Island is included in today's

proposal because although the State hascompleted a review and adoptednumeric criteria for some prioritypollutants in response to the statutoryrequirement, EPA has reason to believethat at least some additional criteria arenecessary to comply with section303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Rhode Island's actions to respond tothe 1987 section 303(c)(2)(B) requirementcan be summarized as follows:-October 1989. The State adopted

revised WQS incorporating an option1 approach for all section 304(a)(1)criteria for aquatic life protection infresh and marine waters. No criteriawere adopted for the protection ofhuman health.

-March 30, 1989. EPA approved thewater quality standards and informedRhode Island that to come into fullcompliance with Section 303(c)(2)(B)

that the State would have to adopthuman health criteria.

This proposed rulemaking wouldFederally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously-approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously-approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons Which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(13). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged ur present andthat Federal, criteria are necessary maybe summarized as follows:

-Priority toxic pollutants on the Statesection 304(1) short list for whichState toxics criteria have not beenadopted and approved.

-State efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numeric

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criteria for an as yet undeterminednumber of priority toxic pollutants.These efforts represent evidence ofthe State's recognition of the need fornumeric criteria for these prioritytoxic pollutants.



-Superfund monitoring data indicatingpresence of priority pollutants athazardous waste sites that may entersurface water through surfacedrainage and ground water migration.

-The Narragansett Bay Studyconducted under the NationalEstuaries Program which indicatedpresence of priority pollutants in fishand shellfish tissue.Vermont is included in today's

proposal because the State has notadopted any criteria for priority toxicpollutants, either before or in responseto the statutory requirement, and EPAhas reason to believe that at least somecriteria are necessary to comply withsection 303(c)(2](B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2](B] because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B} which have beenfully approved by the appropriate EPARegional Administrator.

Vermont's actions to respond to the1987 section 303(c)(2}(B} requirementcan be summarized as follows:-April 1990. Vermont proposed draft

water quality standards revisionsfollowing an option 1 approach for alloecton 304(a)(1) pollutants foraquatic life and human healthprotection.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)[2)(B]. Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority to> ic pollutants where any

previously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited.Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-State efforts since 1987 to adopt

additional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but notcompleted] efforts to adopt new orrevised chemical-specific, numericcriteria for 126 priority toxicpollutants. These efforts representevidence of the State's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.



Region 2New Jersey is included in today's

proposal because although the Stateadopted numeric criteria for somepriority toxic pollutants before the 1987

amendments, the State has notcompleted a review/revision of theirnumeric criteria for priority toxicpollutants in response to the statutoryrequirement and EPA has reason tobelieve that additional criteria arenecessary to comply with section303(c)(2}(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2](B) because it has not adoptedwater quality standards consistent withsection 303(c}(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

New Jersey adopted criteria for somepriority toxic pollutants prior to passageof section 303(c)(2)(B] on April 29, 1985(N.J.A.C 7:9-4.1 et seq.). EPA approvedthese criteria on July 8, 1985. Some ofthese criteria are not affected by today'sproposed rulemaking.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:

-June 20, 1988: the State published apublic notice of proposed revisions tothe State Surface Water QualityRegulation, including new numericcriteria for toxic pollutants.

-July 14, 1989: The State adoptedrevisions to the State Surface WaterQuality Standards Regulation.Numeric criteria were not included inthe adopted revisions.

-July 16, 1990: The State informed EPAthat it would be proposing numericcriteria for all EPA priority pollutants.

This proposed rulemaking wouldFederally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c](2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously-approved State criteria areinsufficiently stringent tc L.Iy protectall designated uses, or where suchpreviously-approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific priority

•

II I i

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pollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This de'ermination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-Priority toxic pollutants on the State

section 304(1) list for whichappropriate State criteria have notbeen adopted and approved, includingmetals.

-State efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for 16 priority toxic pollutants.These efforts represent evidence ofthe State's recognition of the need fornumeric criteria for these prioritytoxic pollutants.



-Correspondence from the Stateindicating that the adoption of criteriafor all EPA priority pollutants wouldbe proposed for adoption.Puerto Rico is included in today's

proposal because although the Stateadopted numeric criteria for somepriority toxic pollutants before the 1987amendments, the State has notcompleted a review/revision of theirnumeric criteria for priority toxicpollutants in response to the statutoryrequirement and EPA has reason to

believe that additional criteria arenecessary to comply with section303(c)(2(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Puerto Rico adopted criteria for somepriority pollutants prior to passage ofsection 303(c)(2)(B) on February 28, 1983(Puerto Rico Water Quality StandardsRegulation, as amended, promulgated byEnvironmental Quality Board ResolutionNumber R-83-5-2). Some of thesecriteria are not affected by today'sproposed rulemaking.

Puerto Rico's actions to respond to the1987 Section 303(c)(2)(B) requirementcan be summarized as follows:-March 15, 1990: The Commonwealth

submitted draft water qualitystandards revisions to EPA for reviewprior to issuing proposed standardsfor public comment.

-May 2-3, 1990 and July 12-13, 1990:The Commonwealth held publichearings on its proposed water qualitystandards revisions.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the Commonwealthinto full compliance with section303(c)(2)(B). To fully protect PuertoRico's designated uses, and to ensurethat the required criteria are adopted,EPA proposes to apply broadly thecriteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate Commonwealth waters, thecriteria in proposed § 231.36(b) for allpriority toxic pollutants which are notthe subject of approved Commonwealthcriteria. EPA also proposes topromulgate Federal criteria for prioritytoxic pollutants where any previouslyapproved Commonwealth criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved Commonwealthcriteria are not applicable to allappropriate Commonwealth designateduses. EPA invites public commentregarding any specific priority pollutantsor water bodies for which Federalcriteria may not be necessary to protectPuerto Rico's designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported by

information in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withPuerto Rico's designated uses. For somepriority toxic pollutants, available dataclearly demonstrate use impairment andthe need for toxics criteria. For mostpriority toxic pollutants, however,available data on the discharge andpresence of priority toxic pollutants arespatially and temporally limited.Nevertheless, EPA believes that the datafor many of these pollutants aresufficient to satisfy the "reasonableexpectation" test established in section303(c)(2)(B). The information in therecord which demonstrates that prioritytoxic pollutants are discharged orpresent and that Federal criteria arenecessary may be summarized asfollows:

-Priority toxic pollutants on theCommonwealth's section 304(1) shortlist for which appropriate statecriteria have not been adopted andapproved, including metals andorganic compounds.

-The Commonwealth's efforts since1987 to adopt additional numericcriteria for priority toxic pollutants, asdescribed above. The Commonwealthhas initiated (but not completed)efforts to adopt new or revisedchemical-specific, numeric criteria for9 priority toxic pollutants. Theseefforts represent evidence of theCommonwealth's recognition of theneed for numeric criteria for thesepriority toxic pollutants.

-Presence in surface waters of theCommonwealth's priority pollutantsfor which sufficient Commonwealthnumeric criteria have not beenadopted, based on surface watermonitoring data in STORET.

-Discharge to surface waters of prioritypollutants for which sufficientCommonwealth numeric criteria havenot been adopted, based on data inthe Toxics Release Inventorydatabase and/or the PermitCompliance System database.

-Previously proposed revisions toPuerto Rico's Water QualityStandards Regulation indicating thatnumeric criteria for additional prioritypollutants are necessary.New York has not been included in

today's proposed rulemaking becausethe State has water quality standardswhich meet the requirements of section303(c)(2)(B). The State has met therequirements of section 303(-)(2)(B) ofthe Act through a combined Option 2and Option 3 approach, as described in

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EPA's December 12, 1988 guidancedocument.

State actions in response to the CleanWater Act requirement to adopt criteriamay be summarized as follows:-September 1985: The State adopted

numeric criteria for 95 substances orclasses of substances, includingaquatic life and/or human healthcriteria. The State also adoptedprocedures, in regulation, fordeveloping both aquatic life andhuman health based criteria. Theprocedures are used for developingthe numeric criteria in the standardsas well as for developing guidancevalues to be used for all purposes forwhich numeric criteria are used. TheState has applied these procedures todevelop aquatic life or human healthbased criteria for a total of 215substances or classes of substances.

-September 30, 1985: EPA approved theState Water Quality Standardssubmittal.

-June 8,1990: EPA approved Statesection 304(l) lists. No segments wereincluded on the "short list" underSection 3040) due to the presence ofEPA priority pollutants for which theState did not have either a numericcriterion or derived guidance value.

-New York State had begun a triennialreview prior to the 1987 amendmentsto the Clean Water Act. A notice of apublic hearing and public informationmeetings was issued on May 25, 1990.The State has proposed the adoptionof a limited number of aquatic life andhuman health based criteria for EPApriority pollutants. Public hearingsand meetings were conducted inAugust 1990. A number of theproposed aquatic life and humanbased criteria were formerly includedas guidance values. The State may beexpected to convert additionalguidance values during the nexttriennial review.EPA approved the criteria for priority

toxic pollutants adopted by New Yorkon September 27, 1990, as beingconsistent with options 2 and 3 of the..December 12 1988 section 303(c)(2)(B)guidance document. In this letter, EPAdirected the State to adequately addressthree issues: the need for greater publicparticipation in the use of guidancevalues; the need for additionalbioconcentration/bioaccumulation-based criteria and guidance values: andparticipation in the process to identifyappropriate water quality criteria for

* use in developing TMDLs/WLAs for thewaters of the New York/New Jersey

.Harbor Complex. EPA believesthat theState has established standards whichinclude or provide for the derivation of.

numeric criteria for all priority toxicpollutants which "may reasonably beexpected to interfere with designateduses".

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2JIB), it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

The U.S. Virgin Islands has not beenincluded in today's rulemaking. No EPApriority pollutants have been identifiedas impairing designated uses in the U.S.Virgin Islands through water qualitymonitoring and assessment activities.Further, EPA believes that there are nopriority toxic pollutants present ordischarged to surface waters which"may reasonably be expected tointerfere with designated uses."

The following information supportsEPA's conclusion:-June 4, 1989. The U.S. Virgin Islands

submitted lists of impaired waterspursuant to section 304(1). No waterswere included on the section 304(l)"short list." No EPA prioritypollutants were identified asimpairing uses on other section 304(1)lists.

-May 9, 1990: EPA approved section304(l) lists submitted by the U.S.Virgin Islands.EPA has determined that the Water

Quality Standards of the U.S. VirginIslands fully meet the requirements ofCWA section 303(c)(2)(B).

If additional information is submittedduring the public comment periodasserting that the U.S. Virgin Islands hasnot fully complied with section303(C)(2)(B), it will be necessary at thattime to respond to those comments andreevaluate the Agency's determinationof full compliance.

Region 3

Virginia is included in today'sproposal because although the Stateadopted numeric criteria for somepriority toxic pollutants before the 1907amendments, such criteria are notmandatory in application and,furthermore, the State has not completeda review of their numeric criteria forpriority toxic pollutants in response tothe statutory requirement. EPA hasreason to believe that at least someadditional criteria are necessary tocomply with section 303(c)(2)[B).Therefore, EPA has determined forpurposes of today's proposedrulemaking that the State is not......currently in compliance with section." 303(c)(2)(B] because it has not adopted

water quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

The State's actions to respond to the1987 section 303(c)(2)[B) reqt irementscan be summarized as follows:

-September 29, 1987. The State WaterControl Board adopted a resolution toadopt numerical criteria for toxicpollutants immediately after EPAissuance of CWA section 303(c)(2)(B)guidance.

-November 29, 1988. The State held apublic meeting to receive commentson the adoption of criteria for toxicpollutants.

-December 30, 1988. EPA sent the Statefinal "Guidance for StateImplementation of Water QualityStandards for CWA section303(c](2J(B)."

-January 10, 1989. EPA submittedformal comments from the publicmeeting.

-October 23, 1989. Virginia requestedEPA to submit recommendations forits triennial review.

-November 21, 1989. EPA responded toVirginia's request for triennial reviewrecommendations.

-December 14, 1989. Virginia beganpublic meetings to receive commentson issues to be included in thetriennial review.

-February 12,1990. Virginia beganpublic hearings on a water qualitystandard for dioxin.

-February 16, 1990. EPA informed theState of EPA's intent to include theState in the national rule topromulgate numeric water qualitycriteria for priority toxic pollutants forthose States which failed to meet therequirements of section 303(c)(2)B).

-March 5, 1990. EPA submittedcomments on Virginia's proposeddioxin standard.

-April 9, 1990. The EPA AssistantAdministrator for the Office of Waterinformed the State that it was going tobe included in a proposed nationalrule to establish numeric, surfacewater criteria for toxic pollutantsdesigned to bring all States into full-compliance with the requirements ofsection 303(c)(2)(B).

-July 25, 1990. Virginia began publichearings on proposed water qualitystandards, including criteria fortoxics.

-August 7. 1990. EPA submittedcomments on Virginia's proposed

* standards.-August 17. 1990. Virginia reproposed

changes to the water qualitystandards forpublic comment.


-September 14, 1990. EPA submittedcomments on the revisions to theproposed water quality standards.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed section 131.36(b) for allpriority toxic pollutants which are notthe subject of approved State criteria.EPA also proposes to promulgateFederal criteria for priority toxicpollutants where any previously-approved State criteria are insufficientlystringent to fully protect all designateduses, or where such previously-approved State criteria are notapplicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)[B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-Priority toxic pollutants on the State

section 304(l) short list for whichmandatory State criteria have notbeen adopted and approved.

-State efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants, as described above.The State has adopted a human healthcriterion for dicxin and has initiated

(but not completed) efforts to adoptnew or revised chemical-specific,numeric criteria for 67 other prioritytoxic pollutants. These effortsrepresent evidence of the State'srecognition of the need for numericcriteria for these priority toxicpollutants.


-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.Delaware has not been included in


The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-December 30, 1988. EPA sent the State

final "Guidance for StateImplementation of Water QualityStandards for CWA Section303(c)(2)(B)."

-November 18, 1988. First draftrevisions to water quality standards,including toxics.

-January 25, 1989. Second draftrevisions to water quality standards.

-March 1, 1989. Third draft revisions tostandards.

-June 1, 1989. Workshop draft of waterquality standards, includingdevelopment documents.

-June 12,1989. Delaware began publicworkshops on standards revisions.

-July 10, 1989. EPA providedpreliminary comments on theworkshop draft revisions.

-July 28, 1989. Delaware submittedrevised standards for EPA review.

-September 6, 1989. Delaware held apublic hearing on the triennial reviewrevisions to the water qualitystandards.

-September 6, 1989. EPA providedcomments at the public hearing.

-February 2. 1990. Delaware adoptedrevisions to the water qualitystandards.

-February 5, 1990. Delaware submittedrevised standards to EPA.

-February 16, 1990. EPA informed theState of EPA's intent to include theState in the national rule topromulgate numeric water qualitycriteria for priority toxic pollutants for

those States which failed to meet therequirements of section 303(c)(2)(B).

-March 13, 1990. Delaware completed aresponsiveness summary for itsstandards review.

-March 21, 1990. Delaware's AttorneyGeneral certified the revisedstandards.

-April 9, 1990. The EPA AssistantAdministrator for the Office of Waterinformed the State that it was going tobe included in a proposed nationalrule to establish numeric, surfacewater criteria for toxic pollutantsdesigned to bring all States into fullcompliance with the requirements ofsection 303(c)(2)(B).

-August 24, 1990. EPA approvedDelaware's revised standards fortoxics.

EPA fully approved the criteria forpriority toxic pollutants adopted byDelaware on February 2, 1990 as beingconsistent with option 2 of theDecember 12, 1988 section 303(c)(2)(B)guidance document. As part of itssubmittal of revised standards for EPAreview, the State included informationwhich demonstrated that numericcriteria had been adopted for all prioritytoxic pollutants which "may reasonablybe expected to interfere with designateduses."

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c](2)(B], it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Maryland has not been included intoday's proposed rulemaking, becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(C)(2)(B) requirementand received Environmental ProtectionAgency (EPA) approval for the criteriaportion of the water quality standards.

The State's response to the 1987section 303(C)(2](B) requirement can besummarized as follows:

-December 30, 1988. EPA sent the Statefinal "Guidance for StateImplementation of Water QualityStandards for CWA section303(c)(2)(B)."

-February 16, 1990. EPA informed theState of EPA's intent to include theState in the national rule topromulgate numeric water qualitycriteria for priority toxic pollutants forthose States which failed to meet therequirements of section 303(c)(2)(B).

-March 21, 1990. The State adoptedrevised water quality standards which

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included numeric criteria for prioritytoxic pollutants.

-April 9, 1990. The EPA AssistantAdministrator for the Office of Waterinformed the State that it was going tobe included in a proposed nationalrule to establish numeric, surfacewater criteria for toxic pollutantsdesigned to bring all States into fullcompliance with the requirements ofsection 303(c](2)(BJ.

-April 30, 1990. The State submitted theadopted water quality standards witha State Attorney General certificationto EPA for approval/disapproval.

-May 4, 1990. The State proposed in theMaryland Register to adopt maximumcontaminant levels (MCLs] forselenium and silver as drinking watercriteria, which corrects a printingerror resulting in the criteria beingplaced in the wrong column in theregulations proposed on November 3,1989.

-June 12, 1990. Maryland submitted forEPA review the public hearing recordfor the toxic substances regulationsproposed November 3, 1989.

-- September 12, 1990. EPA approved therevised State numeric criteria forpriority toxic pollutants.EPA approved the criteria for priority

toxic pollutants adopted by Marylandon March 21, 1990, as being consistentwith option 2 of the December 12, 1988section 303(cJ(2)(B) guidance document.As part of its submittal of final revisedstandards for EPA review, the Stateincluded information whichdemonstrated that numeric criteria hadbeen adopted for all priority toxicpollutants which "may reasonably beexpected to interfere with designateduaes".

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B), it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Pennsylvania has not been included intoday's proposed rulemaking becausethe State has adopted a translatorprocedure to derive numeric criteria forpriority toxic pollutants in response tothe section 303(c)(2)(B) requirement andreceived full EPA-approval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-August 26, 1987. The State submitted

to EPA a proposed list of issues to beaddressed during the triennial waterquality standards review.

-April 5, 1988. EPA submittedcomments on the draft proposed

revisions to the water qualitystandards.

-June 16 1988. The State held a publichearing on its proposed water qualitystandards revisions, at which EPAprovided verbal testimony.

-June 20, 1988. EPA submitted writtencomments to the State regarding theproposed water quality standardsrevisions.

-November 15, 1988. The State adoptedrevised water quality standards whichincluded a translator procedure(option 3) for deriving numeric criteriafor priority toxic pollutants.


-April 17, 1989. The State submitted theadopted water quality standards witha State Attorney General certificationto EPA for approval/disapproval.

-July 21, 1989. EPA requestedclarification on the enforceability ofthe procedure adopted to derivecriteria for priority toxic pollutants.

-July 28, 1989. The State responded toEPA's clarification request.

-September 29, 1989. EPA conditionallyapproved the State's water qualitystandards due to concerns regardingthe enforceability and publicparticipation of the translatorprocedure and the derived criteria.

-November 15, 1989. The Stateresponded to EPA's conditionalapproval.

-January 18, 1990. EPA requestedadditional clarification regarding theState's response to the conditionalapproval.

-February 10, 1990. EPA informed theState of EPA's intent to develop anational rule to promulgate numericwater quality criteria for priority toxicpollutants for those States whichfailed to meet the requirements ofsection 303(c)(2)(B).

-February 20, 1990. The State providedadditional clarification, in response toEPA's January 18, 1990, letter.

-April 9, 1990. The EPA AssistantAdministrator for the Office of Waterinformed the State that it was going tobe included in a proposed nationalrule to establish numeric, surfacewater criteria for toxic pollutantsdesigned to bring all States into fullcompliance with the requirements ofsection 303(c)(2)(B).

-April 11, 1990. EPA approved thetranslator procedure for developingcriteria for priority toxic pollutants.EPA fully approved the procedure for

developing numeric criteria for prioritytoxic pollutants which was adopted by

Pennsylvania on November 15, 1988 asbeing consistent with option 3 of theDecember 12, 1988 section 303(c)(2}(B1guidance document.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B, it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

West Virginia has not been includedin today's proposal because the Statehas adopted criteria for priority toxicpollutants in response to the statutoryrequirement and will receive full EPAapproval by September 13, 1990.

The State's actions to respond to the1987 section 303(c)(2)(B requirementcan be summarized as follows:-June 23, 1988. The State submitted a

draft list of toxic pollutants for criteriadevelopment to EPA for review priorto issuing proposed standards forpublic comment.

-July 25, 1988. EPA provided writtencomments on the draft list of toxicpollutants for criteria development.

-September 12, 1988. The State held apublic hearing on its proposed waterquality standards revisions, at whichEPA provided verbal testimony.

-September 21, 1988. EPA providedwritten comments on the proposedrevisions to the water qualitystandards.

-October 18, 1988. The State submittedproposed revisions to EPA for reviewand approval.

-December 30, 1988. EPA sent the Statefinal "Guidance for StateImplementation of Water QualityStandards for CWA section303(c)(2)(BJ."

-April 27, 1989. The State adopted finalrevisions to the water qualitystandards.

-September 29, 1989. EPA disapprovedcriteria for seven priority pollutants.Aquatic life criteria were disapprovedfor arsenic, cadmium, mercury, nickel,lead, selenium, and silver. Humanhealth criteria were disapproved forarsenic,'mercury and nickel. Inaddition, EPA disapproved site-specific toxics criteria (cyanide,hexavalent chromium, and copper) fortwo waterbody segments (Little ScaryCreek and Turkey Run).

-November 13, 1989. The Stateresponded to EPA's disapproval of thefinal revisions to the water qualitystandards.

-January 30, 1990. The State sent aletter to EPA which stated that thepermittee discharging to Turkey Run


was relocating its outfall to anotherwater body.

-January 31, 1990. EPA responded tothe State's November 13, 1989 reply toEPA's disapproval of the waterquality standards revisions.

-February 16, 1990. EPA informed theState of EPA's intent to develop anational rule to promulgate numericwater quality criteria for priority toxicpollutants for those States whichfailed to meet the requirements ofsection 303(c)(2)(B).

-March 12, 1990. EPA granted the Statean extension to address EPA'sdisapproval.

-April 9, 1990. The EPA AssistantAdministrator for the Office of Waterinformed the State that it was going tobe included in a proposed nationalrule to establish numeric, surfacewater criteria for toxic pollutantsdesigned to bring all States into fullcompliance with the requirements ofsection 303(c](2)(B).

-April 1990. The State submittedrejustification for a disapproved site-specific criterion for copper.

-June 13, 1990. The State submittedemergency revisions to the waterquality standards to address EPA'sdisapproval.

-July 16, 1990. The State held a publichearing on its emergency rulemaking.at which EPA provided verbaltestimony.

-July 25, 1990. The State submittedcomments received on the standardsrevisions by industrial representativesand requested EPA's reaction to thecomments.

-July 27, 1990. EPA held a conferencecall with the State and discharger toLittle Scary Creek to discuss the site-specific copper criteria rejustificationsubmitted in April, 1990.

-August 2, 1990. EPA sent the Staterecommended revised site-specificcopper criteria for Little Scary Creek.

-August 13, 1990. EPA replied to theState's July 25, 1990 request torespond to comments received byindustrial representatives.

-August 20, 1990. The State adoptedfinal emergency revisions to the waterquality standards to address EPA'sremaining concerns.

-August 27, 1990. The State submittedthe adopted final emergency revisionsto the water quality standards with aState Attorney General certification toEPA for approval/ disapproval.

-September 18, 1990. EPA fullyapproved the State's revised Statewater quality standards, including fullapproval of the revised numericcriteria for priority toxic pollutants.EPA fully approved the criteria for

oriority toxic pollutants adopted by

West Virginia on August 20, 1990 asbeing consistent with option 2 of theDecember 12, 1988 section 303(c)(2)(B)guidance document. As part of itssubmittal of final revised standards forEPA review, the State includedinformation which demonstrated thatnumeric criteria had been adopted forall priority toxic pollutants which "mayreasonably be expected to interfere withdesignated uses."


The District of Columbia is includedin today's proposal because although theDistrict adopted numeric criteria formost priority toxic pollutants before the1987 amendments, the District has notcompleted a review of their numericcriteria for priority toxic pollutants inresponse to the statutory requirement,and EPA has reason to believe that atleast some additional criteria arenecessary and some criteria need to berevised to comply with section303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the District isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

On August 26, 1985, prior to thepassage of section 303(c)(2)(B), theDistrict of Columbia adopted underemergency powers some criteria forpriority toxic pollutants, chapter 11 oftitle 21 DCMR, "Water QualityStandards of the District of Columbia."EPA approved these criteria on October31, 1985. The District made theemergency rules final on December 27,1985.

The District's actions to respond tothe 1987 section 303(c)(2)(B) requirementcan be summarized as follows:-August 26, 1988. EPA sent comments

to the District as to what issuesshould be addressed for the upcomingtriennial water quality standardsreview.


-February 15, 1989. The Districtsubmitted draft water qualitystandards revisions to EPA for reviewprior to issuing proposed standardsfor public comment.

-May 30, 1989. EPA sent the District aletter which emphasized the need forexpediting the triennial water qualitystandards review.

-June 26, 1989. The District submittedproposed water quality standaidsrevisions to EPA for review.

-July 5, 1989. The District held a publichearing on the proposed water qualitystandards revisions.

-September 15, 1989. The Districtsubmitted revised proposed waterquality standards revisions to EPA forreview.

-September 25, 1989. EPA submittedcomments on the proposed wc erquality standards revisioas andindicated that the District must adopthuman health criteria for theconsumption of fish.

-October 3, 1989. The Districtresponded to EPA's comments.

-November 3, 1989. EPA providedadditional comments on the proposedwater quality standards revisions.

-December 11, 1989. EPA telephonedthe District to inquire about aresponse to EPA's November 3, 1989.letter and the status of the waterquality standards revisions.

-February 16, 1990. EPA informed theDistrict of EPA's intent to develop anational rule to promulgate numericwater quality criteria for priority toxicpollutants for those States whichfailed to meet the requirements ofsection 303(c)(2)(BJ.

-April 9, 1990. The EPA AssistantAdministrator for the Office of Waterinformed the State that it was going tobe included in a proposed nationalrule to eatablish numeric, surfacewater criteria for toxic pollutantsdesigned to bring all States into fullcompliance with the requirements ofsection 303(c)(2)(B).

-September 7, 1990. The District publicnoticed for comment proposed waterquality standards revisions.

-October 5, 1990. EPA submittedcomments on the proposed waterquality standards revisions.The District has adopted aquatic life

criteria for 120 priority toxic pollutantsand human health criteria for 107priority toxic pollutants. The aquatic lifecriteria for two of the pollutants(selenium and toxaphene) and thehuman health criterion for one of thepollutants (hexachlorobenzene) exceedEPA's section 304(a)(1) criteriarecommendations. Therefore, EPAbelieves that revised criteria for thesepollutants are necessary. The Districtdid not adopt human health criteriaapplicable to public water supplies fornine priority toxic pollutants (lead,asbestos, 2,3,7,8-tetrachlorodibenzo-p-

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dioxin, vinyl chloride, bis(2-chloroisopropyl) ether, bis(2-ethylhexyljphthalate, diethyl phthalate, dimethylphthalate, and di-n-butyl phthalate) andhas not provided justification that thedischarge or presence of thesepollutants cannot reasonably beexpected to interfere with designateduses in the District's surface waters.Therefore, EPA believes that humanhealth criteria for the consumption ofwater are necessary for these pollutants.

The District has not adopted anycriteria for the protection of humansfrom the consumption of fish. Since theDistrict's 1989 State Clean WaterStrategy identifies that fishing doesoccur on District waters, EPA believes itis necessary to propose human healthcriteria for fish consumption for allpriority toxic pollutants for which EPAhas issued section 304(a)(1) criteriarecommendations.

This proposed rulemaking wouldfederally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c}(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollu'ants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState des:gnated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority tox'_ pollu'ants are spatially

and temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:


-Presence in surface waters of theState of priority pollutants for whichsufficient numeric criteria have notbeen adopted, based on surface watermonitoring data in STORET.

Region 4

Alabama has not been included intoday's proposed rulemaking becausethe State has adopted criteria forpriority toxic pollutants in response tothe section 303(c)(2)(B) requirement andreceived full EPA approval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:

-January 24, 1990. The Alabama-Environmental ManagementCommission adopted the triennialreview of water quality standards.

-May 23, 1990. The State AttorneyGeneral notified EPA that the adoptedwater quality standards would not becertified.

-June 1, 1990. The State sent EPA acopy of the revised standards withouta request for formal EPA review andapproval.

-November 26, 1990. The Statesubmitted draft water qualitystandards revisions for EPA review.These revisions include: (1) Criteriafor protection of aquatic life based onan Option I approach as described inEPA's December 12, 1988 guidancedocument, (2] numeric criteria forprotection of human health for 17priority toxic pollutants based onOption II of the guidance, and (3)proposed criteria equations based onOption III of the guidance for theprotection of human health for theremaining priority toxic pollutants.

-January 17, 1991. The State held publichearings on the proposed revisions towater quality standards.

-February 20, 1991. The State adoptedrevisions to water quality standardsincluding the numeric criteria forpriority toxic.pollutant based on anOption I approach as described inEPA's December 12, 1988 guidancedocument.

-April 18, 1991. EPA received theState's request for formal review ofthe adopted water quality standards.

-May 24, 1991. The State AttorneyGeneral submitted informationrelating to the legal certification of theadopted water quality standards.

-July 3, 1991. The State AttorneyGeneral submitted further informationrelating to the legal certification of theadopted water quality standards.

-July 18, 1991. EPA approved therevised State water quality standards.

EPA fully approved the criteria forpriority toxic pollutants adopted byAlabama on July 18, 1991 as beingconsistent with Option I of theDecember 12, 1988 guidance document.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B) it willbe necessary at that time to iespond tothose comments and reevaluate theAgency's determination of fullcompliance.

Florida is included in today's proposalbecause although the State has adoptednumeric criteria for priority toxicpollutants in response to the statutoryrequirement, the State has not yetrequested or obtained EPA approval ofthe adopted criteria. In addition, EPAhas reason to believe that criteria for atleast one other priority toxic pollutant isnecessary to comply with section303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B] because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

On September 24, 1987 EPA approvedthe previous triennial review of FloridaWater quality standards with theexception of three areas of the waterquality standards which weredisapproved. Included in the waterquality standards which were approvedby EPA were several numeric criteria fortoxic priority pollutants derived for theprotection of aquatic life. These criteriawere initially adopted by the State aswater quality standards in adoptionproceedings prior to 1985. These criteriawere not revised In the State's triennialreview completed in 1987.

Federal Register / Vol' 56, No. 223 / Tuesday, November 19, 1991 / Proposed Rules

These criteria included criteria valueswhich are less stringent in value thanseveral of the national ambient waterquality criteria included in the proposedrulemaking. Data used to develop thena,ional ambient water quality criteriawere not available for consideration bythe Slate at the time of the initialadoption of these criteria by the State.

In the letter approxing revisions towater quality standards, EPA instructedthe State "to initiate a review of existingcriteria at the earliest possible date."This review was necessary to addressthe 1987 requirements of section303(c)(2)(B) for adoption of numericcriteria for toxic priority pollutants.

In directing the State to complete thisreview, EPA stated, "Recent changes infederal law relating to water qualitystandards will make it necessary for theState to complete an extensive review ofwater quality criteria during the nexttriennial review of water qualitystandards. The Water Quality Act of19.7 mandates that each state adoptnumerical criteria for all 307(a) toxicsfor which national criteria are availableor adopt procedures which will result innumeric limitations in National PollutantDischarge Elimination System permitsfor these contaminants.

Considering the above, EPA isincluding the national ambient aquaticlife-based water quality criteria valuesfor these toxic priority pollutants in thisproposed rulemaking.

In addition, the criteria adopted bythe State in 1990 for the protection ofhuman health have not been formallysubmitted and certified to EPA with arequest for approval. Therefore, EPA isincluding all national ambient waterquality criteria for protection of humanhealth (as a class of criteria).

The State's actions to respond to the1987 section 303(c)2)(B) requirementcan be summarized as follows:-December 27, 1989. The State

submitted draft water qualitystandards revisions to EPA for review.These revisions include proposedcriteria for protection of human healthbased on an Option II approach asdescribed in EPA's December 12, 1988guidance document as well as updatesto adopted criteria for protection ofaquatic life.

-February 7 and May 1, 1990. The Stateheld public workshops on its proposedwatei quality standards revisions.

-December 7, 1990. The State adoptedrevisions to water quality standardswhich include 66 numeric criteria forpriority toxic pollutants.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into full

compliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed section 131.36(b) for allpriority toxic pollutants which are notthe subject of approved. State criteria.EPA invites public comment regardingany specific priority pollutants or waterbodies for which Federal criteria maynot be necessary to protect Statedesignated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-priority toxic pollutants on the section

304(1) lists;-State efforts since 1987 to adopt

additional numeric criteria for prioritytoxic pollutants, as described above.The State has adopted new or revisedchemical-specific, numeric criteria for66 priority toxic pollutants. Theseefforts represent evidence of theState's recognition of the need fornumeric criteria for these prioritytoxic pollutants.

-Priority toxic pollutants for whichthere exist water quality-based limitsin an NPDES permit or where NPDESpermit screening shows that theFederal 304(a) criteria may beexceeded instream;

-Priority toxic pollutant ambientmonitoring data or site specific datawhich show that the Federal 304(a)criteria in the water column or in fishtissue may be exceeded;

-Priority toxic pollutant data in theToxics Release Inventory undersection 313 of SARA title III or in theNational Bioaccumulation Studywhich show that the Federal 304(a)criteria in the water column or in fishtissue may be exceeded;

-Priority toxic pollutant data for whichthere are reasonable expectations thatthe Federal 304(a) criteria will beexceeded in the water column or fishtissue as a result of impacts fromSuperfund or RCRA sites; and

-Consideration of other data such assediment data and location of storagefacilities of priority toxic pollutantswhere these pollutants couldreasonably be expected to interferewith designated uses.

Georgia has not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's actions to respond to the1987 Section 303(c)(2)(B) requirementcan be summarized as follows:

-December 7, 1988. The State adoptedrevisions to water quality standardswhich included 12 criteria for 307(a)toxics.

-December 8, 1988. The State submittedthe adopted revisions to water qualitystandards for review and approval.

-March 29, 1989. EPA disapproved theadopted 307(a) criteria adopted by theState.

-December 6, 1989. The State adoptedwater quality standards whichincluded an Option I approach for thesection 303(c){2)(B) requirement withthe exception of 2,3,7,8 TCDD (dioxin)and PCBs.

-December 14, 1989. The Statesubmitted the adopted revisions towater quality standards for reviewand approval.

-March 28, 1990. The State adoptedwater quality criteria for dioxin andPCBs.

-April 3, 1990. EPA approved thepriority toxic pollutant criteriaadopted by the State on December 6,1989.

-May 29, 1990. The State submitted tieadopted criteria for dioxin and PCBsfor EPA review and approval.

-October 29, 1990. The State submitteddraft revisions to water qualitystandards including revised criteriafor dioxin.

-November 27, 1990. EPA disapprovedthe adopted criteria for dioxin andapproved the adopted criteria forPCB-.

Sa461


-January 23, 1991. The State adoptedrevised criteria for dioxin.

-April 2, 1991. The State submitted therevised water quality standard fordioxin with a State Attorney Generalcertification to EPA for approval.

-June 3, 1991. EPA approved the dioxincriteria, thus bringing the State intofull compliance with section303(c)(2)(B).EPA fully approved the criteria for

priority toxic pollutants on June 3, 1991as being consistent with Option 1 of theDecember 12, 1988 guidance.


Kentucky has not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2](B) requirementand received full EPA approval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-May 31, 1990. The State adopted

revised water quality standards whichincluded numeric criteria for prioritytoxic pollutants based on Option Iapproach for the section 303(c)(2)(B)requirement.

-June 29, 1990. The State submitted theadopted water quality'standards witha State Attorney General certificationto EPA for approval.

-October 5, 1990. EPA approved therevised State water quality standards,including full approval of the revisednumeric criteria for priority toxicpollutants.EPA fully approved the criteria for

priority toxic pollutants adopted byKentucky on October 5, 1990 as beingconsistent with Option I of theDecember 12, 1988 guidance document.


Mississippi has not been included intoday's proposed rulemaking becausethe State has adopted criteria forpriority toxic pollutants in response tothe section 303(c)(2(B) requirement andreceived ftll EPA approval..


-March 22, 1990. The State adoptedrevisions to water quality standardsin response to the section 303(C)(2)(B)requirement. The adopted revisionsdid not include criteria for dioxin.

-May 14, 1990. The State submitted theadopted revisions to water qualitystandards for review and approval.

-October 5, 1990. EPA approved thewater quality criteria adopted by theState with the exception of theabsence of criteria for dioxin, whichwas disapproved.

-January 29, 30 and 31, 1991. The Stateheld public hearings to receivecomments on the proposed dioxincriteria.

-March 28, 1991. The State adopteddioxin criteria of 1.0 ppq for protectionof human health from the exposureroutes of consumption of fish andshellfish and consumption of water.

-July 12, 1991. The State submitted theadopted dioxin criteria for EPAreview and approval.

-July 15, 1991. The State submitted theadopted dioxin criteria for EPAreview and approval.

-July 24, 1991. EPA approved the State-adopted water quality criteria fordioxin.EPA fully approved the criteria for

priority toxic pollutants adopted byMississippi on July 24, 1991, as beingconsistent with Options I and III of theDecember 12, 1988 guidance document.


North Carolina has not been includedin today's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-July 13, 1989. The State adopted

revisions to water quality standardsin response to the section 303(C)(2)(B)requirement.

-- October 27, 1989. The State submittedthe adopted revisions to water qualitystandards for review and approval.

-April 12, 1990. EPA approved thewater quality criteria adopted by theState with the exception of the criteriafor arsenic (saltwater), chromium(freshwater), copper, lead,pentachlorophenol and zinc.

-October 5, 1990. EPA approved theadopted criteria for chromium

(freshwater) and decided that nocriteria were required forpentachlorophenol to meet the303(c)(2)(B) requirement. In addition.EPA conditionally approved thecriteria for arsenic (saltwater), copper,lead and zinc based on a commitmentby the State that revisions to thesecriteria would be adopted by the Stateby December 13, 1990.

-December 13, 1990. The State adoptedrevised criteria for arsenic, copper,chromium, lead and zinc.

-January 18, 1991. The State submitteothe adopted water quality standardswith a State Attorney Generalcertification to EPA for approval.

-February 7, 1991. EPA approved therevised North Carolina water qualitystandards, including full approval ofthe revised criteria for priority toxicpollutants.On February 7, 1991, EPA fully

approved the criteria for priority toxicpollutants adopted by North Carolina asbeing consistent with Options U and Illof the December 12, 1988 guidancedocument.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B), it willbe necessary at that time to respond tothose comments and-reevaluate theAgency's determination of fullcompliance.

South Carolina has not been includedin today's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-April 27, 1990. The State Legislature

adopted revisions to water qualitystandards in response to the section303(c)(2)(B) requirement.

-May 26, 1990. The State submitted theadopted revisions to water qualitystandards for review and approval.

-June 14, 1990. The State submitted forEPA review draft water qualitystandards revisions including numerichuman health-based criteria based onOption I of the December 12, 1988guidance document.

-August 1 and 2, 1990. The State heldpublic hearings on proposed revisionsto water quality standards whichincluded 103 water quality criteria forprotection of human health.

-October 5, 1990. EPA approved thewater quality criteria adopted by theState with the exception of the criteri'for protection .f human health as a

I . ,

58462


class of criteria. The human healthcriteria for arsenic and lead wereapproved by EPA.

-- October 11, 1990. The South CarolinaBoard of Health and EnvironmentalControl promulgated the proposedrevisions to water quality standardswhich included 103 criteria for theprotection of human health.

-December 7, 1990. Promulgation by theBoard of the South CarolinaDepartment of Health andEnvironmental Control.

-March 13, 1991. Attorney Generalcertification made.

-April 26, 1991. Revisions to SouthCarolina Water Classifications andStandards, Regulation 61-68,pertaining to numeric human healthcriteria for Clean Water Actionsection 307(a] toxics became effectiveupon publication in the State Register.

-May 8, 1991. The State submitted theadopted human health criteria for EPAreview and approval.

-July 9, 1991. EPA approved theadopted standards, thus bringing theState into full compliance with section303(c)(2](B).If additional information is submitted

during the public comment periodasserting that the State has not fullycomplied with section 303(c}{2)(B), it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Tennessee has not been included intoday's proposed rulemaking becausethe State has adopted criteria forpriority toxic pollutants in response tothe section 303(c)(2)(B} requirement andreceived full EPA approval.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-May 1, 1989. The State submitted draft

water quality standards revisions toEPA for review.

-December 15, 1989. The Statesubmitted draft water qualitystandards revisions to EPA for review.The proposal included revisions to thedraft water quality standards basedon comments made by EPA and thepublic.

-December 15, 1989. The State held apublic hearing on proposed revisionsto water quality standards.

-July 30, 1990. The State submitteddraft water quality standardsrevisions to EPA for review. Theproposal included revisions to thedraft water quality standards basedon comments made by EPA and thepublic.

-November 15, 1990. The State held asecond public hearing on proposed

revisions to the water qualitystandards.

-January 17, 1991. The State adoptedrevised water quality standards whichincluded numeric criteria for prioritytoxic pollutants based on Option II ofEPA's December 12, 1988 guidance.

-August 14, 1991. The State submittedthe adopted water quality standardswith a State Attorney Generalcertification to EPA for approval.

-September 28, 1991. EPA approved therevised State water quality standard,including full approval of the criteriafor toxic pollutants.EPA fully approved the criteria for

toxic pollutants adopted by Tennesseeon September 28, 1991 as beingconsistent with Option II of theDecember 12, 1988 guidance.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303{c}(2) B), it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Region 5

Wisconsin has not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's response to the 1987section 303{c)(2)(B requirements can besummarized as follows:-February 1987. The Natural Resources

Board authorized public hearings onChapter NR 105.

-December 1987. The NaturalResources Board authorized publichearings on Chapter NR 106.

-Thirteen public hearings were held onthe water quality standards revisionsin 1987 and 1988.

-November 17, 1988 and December 15,1988. The State adopted revised waterquality standards (Chapter NR 106and Chapter NR 105, respectively]which included numeric criteria forpriority pollutants.

-February 3, 1989. WisconsinDepartment of Natural Resourcessubmitted the adopted water qualitystandards with a State AttorneyGeneral certification to EPA forapproval/disapproval,

-March 1, 1989. Water qualitystandards became effective.

-May 15, 1989. USEPA approved therevised State water quality standards,including full approval of the revisednumeric criteria for priority toxicpollutants.

USEPA fully approved tile criteria forpriority toxic pollutants adopted byWisconsin on November 17 andDecember 15, 1988 as being consistentwith option 2 of the December 12, 1988section 303(c(2}(B} guidance documentAs part of its submittal of final revisedstandards for USEPA review, the Stateincluded information whichdemonstrated that numeric criteria hadbeen adopted for all priority toxicpollutants which "may reasonably beexpected to interfere with designateduses."

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)2}(B} it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Illinois has not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2}(B} requirementand received full EPA approval.

The State's response to the 1987section 303(c}(2)(B) requirements can besummarized as follows:-January 25, 1990. The State adopted

reyised water quality standards whichincluded criteria for priority toxicpollutants.

-February 2, 1990. The State submittedthe adopted water quality standardswith a State Attorney Geneialcertification to USEPA for approval/disapproval.

-February 13, 1990. Water qualitystandards rules became effective.

-February 15, 1990. USEPA approvedthe revised water quality standards(Docket A], including full approval ofthe revised criteria for prioritypollutants.USEPA fully approved the criteria for

priority toxic pollutants adopted byIllinois on January 25,1990 as beingconsistent with a combination of options2 and 3 of the December 12, 1988 section303(c)(2)(B guidance document. As partof its submittal of final revisedstandards for USEPA review, the Stateincluded information whichdemonstrated that numeric criteria-hadbeen adopted for all priority toxicpollutants which "may reasonably beexpected to interfere with designateduses."

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c](2)(B it willbe necessary at that time to respond tothose comments and reevaluate the

58463


Agency's determination of fullcompliance.

Indiana has not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's response to the 1987section 303(cJ(2)(B) requirements can besummarized as follows:-March 1. 2, and 7, 1989. The State

conducted public hearings for thewater quality standards rulesrevisions.

-December 13, 1989. The State adoptedrevised water quality standards whichincluded criteria for priority toxicpollutants. The Governor signed thei evised standards on January 31, 1990.

-March 3, 1990. Water qualitystandards rules became effective.

-April 5, 1990. The State submitted theadopted water quality standards witha State Attorney General certificationto USEPA for approval/disapproval.

-May 7, 1990. USEPA approved therevised water quality standardsincluding full approval of the revisednumeric criteria for priority pollutants.USEPA fully approved the criteria. for

priority toxic pollutants adopted byIndiana on December 15, 1989 as beingconsistent with a combination of options2 and 3 of the December 12, 1988 section303(c)(2)(B) guidance document. As partof its submittal of final revisedstandards for USEPA review, the Stateincluded information whichdemonstrated that numeric criteria hadbeen adopted for all priority toxicpollutants which "may reasonably beexpected to interfere with designateduses."


Ohio has not been included in today'sproposed rulemaking because the Statehas adopted revised criteria for prioritytoxic pollutants in response to thesection 303{c)(2)(B) requirement andreceived full EPA approval.

The State's response to the 1987section 303(c)(2)(B) requirements can besummarized as follows:-November 28, 29 and 30,1989. Ohio

EPA conducted public hearingsaddressing water quality standards'revisions.

-December 18, 1989 Public recordclosed.

-February 1, 1990. The State adoptedrevised water quality standards whichincluded criteria for priority toxicpollutants.

-February 12, 1990. The Statesubmitted the adopted water qualitystandards to USEPA for approval/disapproval.

-March 13, 1990. The State submittedthe required Attorney Generalcertification of the water qualitystandards.

-April 25, 1990. USEPA approved therevised water quality standardsincluding full approval of the revisednumeric criteria for priority pollutants.

-May 1, 1990. Water quality standardsrules became effective.USEPA fully approved the criteria for

priority toxic pollutants adopted byOhio on February 1, 1990 as beingconsistent with a combination of options2 and 3 of the December 12, 1988 section303(c)(2)(B) guidance document. As partof its submittal of final revisedstandards for USEPA review, the Stateincluded information whichdemonstrated that numeric criteria hadbeen adopted for all priority toxicpollutants which "may reasonably beexpected to interfere with designateduses."


Michigan is included in today'sproposal because although the Stateadopted criteria for priority pollutantsbefore the 1987 amendments, the Statehas not completed a review of theircriteria for priority toxic pollutants inresponse to the statutory requirementand USEPA has reason to believe thatmodification of the water qualitystandards is necessary to comply withsection 303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c](2)(B because it has not adoptedwater quality. standards consistent withsection 303(c)(2)[B) which'have beenfully approved by the appropriate EPARegional Administrator.

Michigan adopted criteria for prioritytoxic pollutants consistent with option 3of the December 12, 1988 section303(c)(2)(B) guidance document prior toactual passage of section 303(c)(2)(B) on.November 14. 1986 (General Rules of theMichigan Water Resources Commission,.Part.4, Water.Quality Standards. R 323of the Michigan Administrative Code).

USEPA approved these criteria onAugust 4, 1987. However, the translatormechanism guidelines implementingRule 57 were not included within thewater quality standards regulation itselfand, therefore, the criteria calculatedthrough the implementation of thisprocedure were not bind-ng upon theWater Resources Commission butinstead are considered to berecommendations to the Commission.The State's efforts in response to section•303(c)(2)(B) have consisted of bringingthe existing option 3 procedure withinRule 57 itself, thereby makingimplementation of the procedure-generated criteria in permits mandatory.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementscan be summarized as follows:-July 21, 1988. MDNR staff presented

and the Michigan Water ResourcesCommission approved a proposedwater quality standards reviewprocess and schedule.

-August, September and October 1988.Informal public comment on requestsfor changes in the water qualitystandards taken in Water ResourcesCommission meetings at Houghton,Lansing and Tawas, Michigan,respectively.

-February 28, 1989. Scoping sessionheld by MDNR staff with interestedparties prior to development of waterquality standards package.

-August 20, 1989. Draft proposed waterquality standards package aspresented to the Commission and wasapproved for informal public commentthrough September 29, 1989.

-October 20, 1989. Staff presented adraft proposed standards package tothe Commission which theCommission approved for.formalpublic hearings.

-December 31, 1989. The proposedwater quality standards werepublished in the November, 1989Michigan Register along with a Noticeof Public Hearing.

-February 20. 21 and 22, 1990. PublicHearings on the proposed standardswere held in Lansing. Traverse Cityand Marquette, respectively.

-April 2, 1990. Public comment periodended.

-May 1990. Water ResourcesCommission approved revised waterquality standards.

-September 1990. Revised waterquality standards are to go beforeJoint Committee on AdministrativeRules ()CAR) for approval/disapproval. The JCAR dropped thisitem from its-agenda and did notaddress it during 1990. The Michigan

58464


DNR has again submitted the existingrevisions to JCAR for its reviewduring February 1991.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-Priority toxic pollutants on the

Michigan Section 304(l) short list(February 3, 1989) for which Statecriteria consistent with Section303(c)(2)(B) have not been adoptedand approved, including metals,dioxin, and polynuclear aromatichydrocarbons.

-Presence in surface waters of theState of priority pollutants for which

sufficient State numeric criteria havenot been adopted, based on surfacewater monitoring data in STORET.


-1990 Michigan 305(b) Report.-Current implementation of Michigan's

Rule 57 in the State's NPDES program(e.g., Form 2c data, presence of waterquality-based effluent controls inexisting NPDES permits).Minnesota has not been included in


The State's actions to respond to the1987 section 303[c)(2)(B) requirementscan be summarized as follows:-December 1989. Minnesota Pollution

Control Agency begins rulemakingproceedings on amendments toMinnesota Rules Chapter 7050.

-February 1 to March 16, 1990.Minnesota Pollution Control Agencyholds nine public hearings addressingthe revised standards.

-April 10, 1990. Public record for thestandards revisions closed.

-Ma, 10, 1990. Administrative LawJudge issued his report on thestandards revisions.

-June 25, 1990. Minnesota PollutionControl Agency staff met with theMinnesota Pollution Control AgencyBoard-Water Quality Committee todiscuss standards revision issues.

-July 24, 1990. Board approved andadopted the standards revisions.

-july 16, 1991. EPA approved therevised Minnesota water quality

standards, including full approval ofthe revised criteria for priority toxicpollutants.If additional information is submitted

during the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B) it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Region 6Arkansas is included in today's

proposal because although the State hascompleted a review and adoptednumeric criteria for some priority toxicpollutants in response to the statutoryrequirement, EPA has reason to believethat at least some additional criteria arenecessary to comply with section

303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Arkansas adopted some criteria forpriority pollutants on November 1984and January 1988. EPA approved thesecriteria on 1/28/85 and 5/6/88 and thesecriteria are not affected by today'srulemaking.


-November 1984. The State adoptedrevised water quality standards thatincluded numeric criteria for 16 toxicsubstances to protect aquatic life.These were approved by EPA onJanuary 28, 1985.

-January 1988. The State adoptedrevised water quality standards thatincluded numeric criteria for 24priority pollutants to protect aquatic'life. These were approved by EPA onMay 6, 1988.

-July 27, 1990. The State proposedrevised water quality standards thatincluded numeric criteria for 36priority pollutants to protect aquaticlife and for 13 priority pollutants toprotect human health at a 10.- risk.

-August 27, 1990. The State held apublic hearing to receive publiccomment on the proposed revisionsmentioned above.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attempted

5d465


to determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). A listof the pollutants requiring criteria wasincluded in letters to the State datedFebruary 15, 1990 and June 11, 1990(copies are contained in the record). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-Priority toxic pollutants on the State

section 304(1) short list for which Statecriteria consistent with Section303(c)(2)(B) have not been adoptedand approved,


-Presence in surface waters of theState of priority pollutants for whichsufficient State numeric criteria havenot been adopted, based on surfacewater monitoring data in STORET andthe National Bioaccumulation Study.

-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.Louisiana is included in today's

proposal because although the State hasadopted criteria for some priority toxicpollutants in response to the statutoryrequirement, EPA disapproved the lackof criteria for dioxin and has reason tobelieve that some additional criteria are

necessary to comply with section303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent with-Section 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

The State completed a triennialrevision of its water quality standardssince passage of the Clean Water Act(CWA) section 303(c)(2)(B) and adoptedrevised standards on September 20,1989. The revised numeric criteria wereapproved by EPA on December 19, 1989with the exception of dioxin (nocriterion proposed). Since this revision,a review of several databases-STORET, TRI, State 305(b) reports, andNPS assessments-indicated the needfor Louisiana to adopt additionalnumeric criteria for mercury, lead,cadmium, copper and nickel via anOption 2 approach.

On March 20, 1991 the State adoptednumeric criteria for 5 metals (cadmium,copper, lead, mercury and nickel). EPAreceived these revisions for our reviewon June 20,1991.

Today's rule would only promulgatenumeric criteria for dioxin and themetals listed above. Criteria approvedon December 19, 1989 by EPA are notaffected by today's proposedrulemaking.

New Mexico has-not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-June 6, 1988. The State proposed

revised waterquality standards thatincluded numeric criteria for 11priority pollutants to protect aquaticlife. Additionally, the State proposeda narrative statement about protectingagainst toxic substances in domesticwater supplies that create more than a10-5 cancer risk.

-June 13, 1990. The State held a publichearing to receive public comment onthe proposed revisions mentionedabove.

-May 22, 1991. The State adoptednumeric criteria for 14 prioritypollutants. EPA received theserevisions for our review on June 7,1991.

-August 19, 1991. EPA approved therevised New Mexico water qualitystandards, including full approval of

the revised criteria for priority toxicpollutants.If additional information is submitted


Oklahoma has not been included intoday's proposed rulemaking becausethe State has adopted criteria forpriority pollutants in response to thesection 303(c)(2)(B) requirement andreceived full approval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-June 10, 1989. The State adopted

revised water quality standards whichincluded numeric criteria for prioritytoxic pollutants.

-November 1, 1989. The State submittedthe adopted water quality standardswith a State Attorney General'scertification to EPA for approval/disapproval.

-January 18, 1990. EPA approved therevised State water quality standards,including full approval of the numericcriteria for priority toxic pollutants.EPA fully approved the criteria for

priority toxic pollutants adopted byOklahoma on June 10, 1989 as beingconsistent with Option 1 for aquatic lifecriteria and Option 2 for human healthcriteria as described in the December 12,1988 section 303(c)(3)(B) guidancedocument. EPA's review concluded thatnumeric criteria had been adopted forall priority toxic pollutants which "mayreasonably be expected to interfere withdesignated uses."

If additional information is submittedduring the public comment periodasserting that the State is not incompliance with section 303(c)(2)(B),EPA will transmit these comments toOklahoma and will reevaluate theAgency's determination of fullcompliance after Oklahoma's submittalof their 1992 revised water qualitystandards to EPA for our approval/disapproval.

Texas has not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-April 7, 1988. The State adopted

revised water quality standards thatincluded numeric crileria for 30 toxic

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Federal Register I VoL 5K, No. 223 / Tuesday, November 19, 1991 / Proposed Rules

substances to protect aquatic life. Thenumeric criteria adopted for mercuryprotected human health in addition toaquatic life.

-June 29 1985. EPA approved theaquatic life criteria for 30 prioritytoxic pollutants and the human healthcriterion for mercury.

-December 24, 1990. The State issuedproposed water quality standardsrevisions for public comment. Theproposed revisions included numericcriteria for 29 priority pollutants.

-February 25,1991. The State held apublic hearing on the proposedrevisions to the water qualitystandards mentioned above.

-June 12,1991. The State adoptednumeric criteria for 29 prioritypollutants. EPA received theserevisions for our review on July 1,1991.

-September 25, 1991. EPA approved therevised Texas water qualitystandards, including full approval ofthe revised criteria for priority toxicpollutants.If additional information is submitted


Region 7Iowa has not been included in today's

proposed rulemaking because the Statehas adopted revised criteria for prioritytoxic pollutants in response to thesection 303[c)(2(B) requirement andreceived full EPA approval.

The State's actions to respond to the1987 section 303(c](2)(B] requirementcan be summarized as follows:-March 19, 1990-The Iowa

Environmental Protection Commissionadopted aquatic life use protectioncriteria for several priority toxicpollutants.

-April 9, 1990-The State submitted theadopted aquatic life criteria to EPAwith a proposed effective date of May23, 1990.

-May 3,1990-The State submitteddraft human health criteria to EPA.

-June 1, 1990-The State resubmitteddraft human health criteria to EPA.

-July 11, 1990-The State published anotice of intended action concerningstandards revisions for human healthcriteria and scheduled publichearings

-August 1. 2, and 7, 1990-The Stateheld public hearings at three locationsin the State.

-September 17.1990--The Statescheduled adoption by the

Environmental Protection Commissionfor October 15,1990.

-December 19, 1990. Standards becomeeffective.

-June 11. 1991. EPA approved therevised State water quality standardsas satisfying the requirement ofsection 303(c)(2)(B].EPA fully approved the criteria for

priority toxic pollutants adopted byIowa on June 11, 1991, as beingconsistent with Option 1 of theDecember 12. 1988 guidance.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303{c)(2)(B) it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

EPA has withheld approval of theaquatic life criteria revisions until theState completes and submits all of therevisions and documentation necessaryunder section 303 (c)(2)(B).

This proposed rulemaking wouldFederally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)B}. Tofully protect State designated uses, andto ensure that the required criteria areadopted. EPA proposes to apply broadlythe criteria in'proposed § 131.30(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most priority

toxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand tempoially limited- Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2J(B]. Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:

-Priority toxic pollutants on the Statesection 304 (1) short list includingmetals for which revised state criteriahave not been adopted and approved.

-State efforts since 1987 to adoptadditional numeric criteria for priorilytoxic pollutants, as described above.The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for - priority toxicpollutants. These efforts representevidence of the State's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.

-- Regional Ambient Fish TissueMonitoring data Indicating elevatedfish flesh concentrations of pesticideswhich are not currently covered withapproved state criteria.

-STORET data indicating the presencein surface waters of priority toxicpollutants which are not currentlycovered with approved state criteria.Kansas is included in today's proposal

because although the state adoptednumeric criteria for a few priority toxicpollution before the 1987 amendments,the state has not completed a review oftheir numeric criteria for priority toxicpollutants in response to the statutoryrequirements and the EnvironmentalProtection Agency (EPA) has reason tobelieve that at least some additionalcriteria are necessary to comply withsection 303(c)2)(B. Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c](2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Kansas adopted some criteria forpriority toxic pollutants prior to thepassage of section 303{c)(2)(B) on May 1.1986 (State Regulation K.A.R. 28-16-28e). EPA approved these criteria onJune 19, 1986, and most of these criteriaare not affected by today's proposedrulemaking. (Those not affected areaquatic life criteria for nickel, silver,zinc, aldrin, chlordane, DDT, dieldrin.

58467


endosulfan, endrin, heptachlor, lindane.and PCBs).,

The state's actions to respond to the1987 section 303[c)(2)(B) requirementcan be summarized as follows:-January 1990-The state submitted a

preliminary draft of numeric criteriafor EPA prior to starting an internaland external review of water qualitystandards revisions.

-July 1990-The state stopped allaction on the standards revisionsciting concerns over the costs ofcompliance.

-January 1991-The state submitted adraft package of standards revisionsto EPA including numeric criteria tosatisfy section 303(c)(2)(B) and set adate of June 1991.for final adoption.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303[c)(2)[B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously-approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously-approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" test

established in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows;-Priority toxic pollutants on the state

section 304(1) short and mini lists forwhich State criteria have not beenadopted and approved, includingmetals.

-State efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for - priority toxicpollutants. These efforts representevidence of the State's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.

-STORET data indicating the presencein surface water of priority toxicpollutants which are not currentlycovered with approved state criteria.Missouri has not been included in


The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-March 17, 1989-Missouri Clean

Water Commission adoptedadditional numeric criteria for prioritytoxic pollutants for aquatic life useprotection.

-April 15, 1989--The adopted criteriabecame effective under State law.

-October 13, 1989-EPA approvedcriteria with a recommendation thatMissouri review the need foradditional human health criteria.

-August 6, 1990-The State held apublic meeting to discuss humanhealth criteria revisions.

-August 23, 1990-The State scheduleda public hearing and adoption beforethe Missouri Clean WaterCommission for October 23, 1990.

-December 12, 1990. Clean WaterCommission adopts water qualitystandards.

-January 30, 1991. Standards sumbittedto EPA for review.

-March 4, 1991. Standards becomeeffective in State.

-June 11, 1991. EPA approves standardsas complying with section 303(c)(2)(B).EPA fully approved the criteria for

priority toxic pollutants adopted byMissouri on June 11, 1991 as beingconsistent with Option 1 of theDecember 12, 1988 guidance.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c](2)(B) it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Nebraska has not been included intoday's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c)(2)(B) requirementand received full EPA approval.


-May 20, 1988-The state adoptednumeric criteria for aquatic lifeprotection for priority toxic pollutants.

-August 29, 1988-The adopted criteriabecame effective under state law.

-October 18, 1988-EPA approvedNebraska's Water Quality Standardsnoting that the need for additionalhuman health criteria must beevaluated.

-December 1, 1989-The state adoptedsome numeric priority toxic pollutantcriteria for a human health use(drinking water supply).

-February 20, 1990-The adoptedcriteria became effective under statelaw.

-January 17, 1990-DEC proposedhuman health fish consumptioncriteria for priority toxic pollutants.

-February 16, 1990-The state adoptedthe proposed human health fishconsumption numeric criteria.

-June 27, 1990-The human health fishconsumption numeric criteria becameeffective under state law.

-August 10, 1990--The state proposedrevisions to mixing zone provisions ofState Water Quality Standards whichaffect the application of numericcriteria.

.- September 21, 1990-The stateadopted proposed revisions to mixingzone policies.

-August 2, 1991. EPA approved therevised Nebraska water qualitystandards, including full approval ofthe revised criteria for priority toxicpollutants.


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Region 8

Colorado is included in today'sproposal because, although Coloradohas completed a review and adoptednumeric criteria for some priority toxicpollutants in response to the statutoryrequirement, EPA has reason to believethat at least some additional criteria arenecessary to comply with section303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)[(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Colorado's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-June 5, 1989-Region VIII notified the

State that the priority pollutantstandards under consideration foradoption would not fully satisfy therequirements of section 303(c](2)(B).

-August 17, 1989-Colorado completedits triennial review and revised theState's Basic Standards andMethodologies. The revised Standardswere submitted to EPA for review onOctober 6, 1989. The revised BasicStandards and Methodologiesincluded new numeric criteria forsome of the priority toxic pollutants;however, not all of the priority toxicpollutants for which EPA hasdeveloped 304(a) criteria wereincluded in the revised State rule.

-January 17, 1990-Region VIII sent aletter to the State explaining therequirements for full compliance withsection 303(c)(2)(B). The letterexplained that where a State selectedan option 2 approach to fullcompliance (i.e., option 2 as describedin EPA's December 12, 1988 guidance-and the Region's January 17, 1990letter to the State), the burden was onthe State to demonstrate thatadditional criteria beyond thosealready adopted were not needed.

-February 5, 1990-In a letter from theColorado Water Quality ControlDivision to EPA Region VIII, Coloradonotified EPA that it intended to meetthe full compliance requirements byway of option 2. To date, however, thedocumentation supporting fullcompliance with option Z has not beenreceived.

-July 9, 1990-Region VIII sent a letterto the State commenting on what theRegion considered to be neededrevisions to the State's BasicStandards and Methodologies. In theletter, the Region again advised theState that the current toxics

provisions of the Basic Standards andMethodologies were incomplete andsubject to the federal promulgation.The letter explained the Agency'sapproach to the upcomingpromulgation. and the proposedregulatory language and criteriavalues to be promulgated wereenclosed for State review.

-July 12, 1990-In a memorandum tothe State, Region VIII providedadditional information on compliancewith the toxic requirements and theupcoming federal promulgation. Thememorandum. included a listing ofEPA published and modified toxicscriteria which could be used inproposing needed amendments to theexisting toxics provisions in the BasicStandards and Methodologies(modified criteria were based on themost recent information in IRIS).

-August 13, 1990-Region VIII sent animproved version of the toxics criteriachart to the State staff.

-September 19, 1990. Region VIII sentto the State a "strawman" dataanalysis which provided stream-specific information regarding thepriority toxic pollutants that mayrequire adoption of criteria to satisfythe option 2 full compliancerequirements of section 303(c)(2)(B).

-February 21, 1991. The State proposedamendments to the Basic Standardsand Methodologies for its Julytriennial review hearing. Theproposed amendments include: (1)Revisions and additions to theexisting aquatic life criteria, and (2]application of EPA's human healthcriteria to all class I waters and anyclass 2 waters which provide anexposure pathway via consumption ofcontaminated aquatic organisms and/or drinking water.

-May 21, 1991. Region VIII sent a letterto the State detailing threedeficiencies in the State's February 21,1991 proposed revisions to the BasicStandards and Methodologies: (1)Failure to explain why health-based.standards applicable to water supplysegments were not included for morethan 40 priority toxic pollutantsaddressed by section 304(a) guidance,(2) failure to explain why health-based standards applicable to aquaticlife segments were not included formore than 20 priority toxic pollutantsaddressed by section 304(a) guidance,and (3) failure to finally resolve withinthe Basic Standards andMethodologies the applicability of. (a)The numeric aquatic life and humanhealth standards for inorganics, and

- (b) certain human health numericstandards (i.e., those that addresshuman exposure-from water and ,fish

consumption) for organics. The RegionVIII letter notified the State that thesedeficiencies would need to beaddressed to satisfy the fullcompliance requirements and toensure that Colorado would not beaffected by the Federal section303(c)[2)tB) promulgation.

-July 1, 1991. The State held a publichearing on the proposed standardsrevisions. At the hearing. EPAsubmitted written testimony thatidentified the specific issues andoptions related to section 303(c)(2](B)compliance.

-August 20, 1991. In a letter to theState, EPA Region VIII approved theAugust 17, 1989 toxics criteria adoptedby Colorado as partially fulfilling therequirements of section 303(c)(2)[B).The letter clearly indicated thatadditional State action would berequired to achieve full compliance.

-- October 8, 1991. The State WaterQuality Control Commission adoptedadditional numeric criteria for prioritytoxic pollutants, including criteria forall such toxics addressed by EPAsection 304(a) criteria guidance. Theadopted standards were intended toresolve all issues related to section303(c)(2)HB) compliance. Because EPAhas not yet had sufficient opportunityto review and approve thesestandards, today's proposal is basedon the standards previously adoptedby the State on August 17, 1089.This proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate.Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. For example, to fullyprotect aquatic life uses from theimpacts of inorganic priority toxicpollutants (including metals), EPAproposes to promulgate aquatic lifecriteria for only those particularsegments and inorganic substances forwhich State aquatic life criteria have notbeen applied. EPA invites public-comment regarding any specific prioritypollutants or water bodies for which

IIIIII I

58469


Federal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific.prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessaryto protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-State efforts since 1987 to adopt

additional numeric criteria for prioritytoxic pollutants, as described above.These efforts represent evidence ofthe State's recognition of the need fornumeric criteria for these prioritytoxic pollutants.


-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory data base and/orthe Permit Compliance System database.North Dakota has not been included

in today's proposed rulemaking becausethe State has adopted revised criteria inresponse to the section 303(c)(2)(B)requirement and received full EPAapproval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-May 1, 1989. North Dakota completed

its triennial review and revised theState's standards. The revisedstandards were submitted to EPA forreview on September 20, 1989. Therevised standards included newnumeric criteria for some of thepriority toxic pollutants; however, not

all of the priority toxic pollutants forwhich EPA has developed 304(a)criteria were included in the revisedState rule.

-January 17, 1990. Region VIII sent aletter to the State explaining therequirements for full compliance withsection 303(c)(2)(B). The letterexplained that the burden was on theState to demonstrate that additionalcriteria beyond those already adoptedwere not needed.

-February 7, 1990. In a letter from theNorth Dakota Water Supply andPollution Control Division to EPARegion VIII, North Dakota notifiedEPA that it intended to meet the fullcompliance requirements by way ofoption I (i.e., an option 1 approach asdescribed in EPA's December 12, 1988guidance document and the Region'sJanuary 17, 1990 letter to the State).

-July 12, 1990. In a memorandum to theState, Region VIII provided additionalinformation on compliance with thetoxics requirements and the upcomingfederal promulgation. Thememorandum included a listing ofEPA published and modified toxicscriteria which could be used inproposing needed amendments to theexisting toxics provisions in the Statestandards (modified criteria werebased on the most recent informationin IRIS).

-August 13, 1990. Region VIII sent animproved version of the toxics criteriachart to the State staff.

-October 16, 1990. The Regionapproved the previously adoptedState standards as partially fulfillingthe section 303(c)(2)(B) requirementsand notified the State that thestandards would be consideredincomplete pending completion of thefull compliance requirements. TheRegional WQS review letter alsonotified the State that the incompleteportions of the State rule would besubject to the proposed federalpromulgation.

-November 15, 1990. North Dakotaadopted additional standards for thepriority toxic pollutants. The amendedstandards include criteria for all of thepriority pollutants for which EPA haspublished 304(a) criteria plusadditional criteria based on the mostrecent information in EPA's IRIS database. The amended standards meetthe requirements for full compliancewith section 303(c)(2)(B). Theamended standards became effectiveFebruary 1, 1991, and the standardswere submitted by the State for EPAreview and approval on February 25,1991,

-March 8, 1991. Region VIII approvedthe amended State water quality

standards and advised the State thatthe amended standards met the fullcompliance requirements of section303(c)(2)(B).If additional information is submitted

during the public comment period .asserting that the State has not fullycomplied with section 303fc)(2)(B) it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

South Dakota has not been includedin today's proposed rulemakingbecausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 393(c)(2}(B) requirementand received full EPA approval.

South Dakota's actions to respond tothe 1987 section 303(c)(2)(B} requirementcan be summarized as follows:-October 8, 1987. South Dakota

completed its triennial review andrevised the State's Standards. Therevised Standards were submitted toEPA for review on May 5, 1989. Therevised Standards included areference to EPA's Water OualityCriteria, 1986 as the numeric criteriaincorporated in State Standards;however, the State did not include oridentify certain information needed todistinguish which specific EPA criteriahad been adopted as State Standards.

-January 17, 1990. Region VIII sent aletter to the State explaining therequirements for full compliance withsection 303(c)(2)(B). The letterexplained that incorporation of EPA'snational criteria into State Standardsby reference to EPA's Quality Criteriafor Water, 1986 was acceptable;however, such a reference would haveto include sufficient information toidentify the specific numeric criteriawhich comprised State Standards. Theneeded information was not providedprior to today's proposal.

-February 13, 1990. Region VIII sent aletter to the State further explainingthe issues that would have to beclarified before the Region would beable to grant final approval of thetoxics portion of the State waterquality standards.

-March 8, 1990. South Dakota furtheramended the State Standards toclarify the role of the Department ofNatural Resources in applying thecriteria in Quality Criteria for Water,1986; however, the new amendmentsdid not address the specificinformation needed to satisfy the fullcompliance requirements for section303(c)(2)(B).

-July 12, 1990. Region VIII sentadditional information to the State on

58470


compliance with the toxicsrequirements and the upcomingfederal promulgation. Thememorandum included a listing ofEPA published and modified toxicscriteria which could be used inproposing needed amendments to theexisting toxics provisions in the Statestandards (modified criteria werebased on the most recent informationin IRIS).

-August 13, 1990. Region VIII sent animproved version of the toxics criteriachart to the State staff,

-November 6, 1990. Region VIII sentadditional information to the Statefurther delineating the specificapplication information that would beneeded to achieve approval of thetoxics provisions of the water qualitystandards.

-March 6, 1991. In a letter from theDivision of Environmental Regulation,South Dakota provided a completeinterpretation of the toxics controlprovisions in section 74:03:02:14, thesection of the South Dakota waterquality standards which incorporatesEPA's Quality Criteria for Water, 1986by reference. The State's letterincluded a listing of the specificcriteria which are considered to bestandards of the State. The listincluded all of the published 304(a)criteria and identified the uses towhich the criteria applied.

-March 13, 1991. The Region approvedthe adopted State criteria as fulfillingthe section 303(c)(2)(B) requirements.If additional information is submitted


Utah has not been included in today'sproposed rulemaking because the Statehas adopted revised criteria in responseto the section 303(c)(2)(B) requirementand received full EPA approval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-April 21, 1988. Utah completed its

triennial review and revised theState's standards. The revisedstandards were submitted to EPA forreview on February 10, 1989. Therevised standards included newnumeric criteria for some of thepriority toxic pollutants for whichEPA has developed 304(a) criteriawere included in the revised Staterule.

-January 17, 1990. Region VIII sent aietter to the State enplaning the

requirements for full compliance withsection 303(c)(2)(B). The letterexplained that the burden was on theState to demonstrate that additionalcriteria beyond those already adoptedwere not needed.

-January 31, 1990. In a letter from theUtah Bureau of Water PollutionControl to EPA Region VIII, Utahnotified EPA that it intended to meetthe full compliance requirements byway of option 1 (i.e., an option 1approach as described in EPA'sDecember 12, 1988 guidance documentand the Region's January 17, 1990letter to the State).


-August 13, 1990. Region VIII sent animproved version of the toxics criteriachart to the State staff.

-November 29, 1990. The Regionapproved the previously adoptedState standards as partially fulfillingthe section 303(c)(2)(B) requirementsand notified the State that thestandards would be consideredincomplete pending completion of thefull compliance requirements. TheRegional water quality standardsreview letter also notified the Statethat the incomplete portions of theState rule would be subject to theprovisions of the proposed federalpromulgation.

-January 18, 1991. Utah adoptedadditional standards for the prioritytoxic pollutants. The amendedstandards include criteria for all of thepriority pollutants for which EPA haspublished 304(a) criteria. Theamended standards meet therequirements for full compliance withsection 303(c)(2)(B). The amendedstandards were submitted by theState for EPA review and approval onFebruary 13, 1991.

-March 8, 1991. Region VIII approvedthe amended State water qualitystandards and advised the State thatthe amended standards met the fullcompliance requirements of section303(c)(2)(B).If additional information is submitted

during the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B) it will

be necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Wyoming has not been included intoday's proposed rulemaking becausethe State has adopted revised criteria inresponse to the section 303(c)(2)(B)requirement and received full EPAapproval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-January 17, 1990. Region VIII sent a

letter to the State explaining therequirements for full compliance withsection 303(c)(2)(B). The letterexplained that the burden was on theState to demonstrate that additionalcriteria beyond those already adoptedwere not needed.

-February 12, 1990. In a letter from theWyoming Water Quality Division ofthe Department of EnvironmentalQuality, Wyoming notified EPA that itintended to meet the full compliancerequirements by way of option 1 (i.e.,an option 1 approach as described inEPA's December 12, 1988 guidancedocument and the Region's January17, 1990 letter-to the State).

-May 29, 1990. Region VIII providedwritten comments for the WyomingEnvironmental Quality Counciltriennial review hearing. The Region'scomments further explained therequirements for full compliance withsection 303(c)(2)(B).


-July 19, 1990. Region Vill providedadditional written comment to theWyoming Environmental QualityCouncil. The Region's commentsprovided further information on thetoxics requirements, including specificlists of published and modifiedcriteria for the priority pollutantswhich would meet the full compliancerequirements.

-August 13, 1990. Region Vill sent animproved version of the toxics criteriachart to the State staff.

-October 3, 1990. Wyoming adoptedadditional standards for the prioritytoxic pollutants. The amendedstandards include criteria for all of the

r18471


priority pollutants for which EPA haspublished 304(a) criteria plusadditional criteria based on the mostrecent information in EPA's IRIS database. The amended standards meetthe requirements for full compliancewith section 303(c)(2)(B). Theamended standards became effectiveNovember 29, 1990, and the standardswere submitted by the State for EPAreview and approval on December 24,1990. Clarification of the legalstanding of the newly adopted rulewas provided with a memorandumfrom the State dated January 12, 1991.

-- March 8, 1991. Region VIII approvedthe amended State water qualitystandards and advised the State thatthe amended standards met the fullcompliance requirements of section303(c)(2)(B).If additional information is submitted

during the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B) it willbe necessary to respond to thosecomments and reevaluate the Agency'sdetermination of full compliance.

Montana has not been included intoday's proposed rulemaking becausethe State has adopted revised criteria inresponse to the section 303(c)(2)(B)requirement and received full EPAapproval. The State's response to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-September 23, 1988. The State adopted

final water quality standards whichincluded numeric criteria for thepriority toxic pollutants (by referenceto EPA's Quality Criteria for Water,1986 through update #2 1987 includingsupporting information).

-December 9, 1988. The State submittedthe adopted water quality standardswith a State Attorney Generalcertification to EPA for approval/disapproval.

-March 8, 1989. EPA approved theportion of the revised State waterquality standards which responded tothe requirements of section303(c)(2)(B) (other portions of therevised standards were disapproved).

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2)(B) it willbe necessary to respond to thosecomments and reevaluate the Agency'sdetermination of full compliance.

Region 9

American Samoa has not beenincluded in today's proposed rulemakingbecause it has adopted revised criteriafor priority toxic pollutants in response

to the section 303(c)(2)(B) requirementand received full EPA approval.

American Samoa's response to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-January 1990. American Samoa

submitted draft water qualitystandards revisions to EPA and thepublic for review.

-February 1990. American Samoa helda public hearing on its proposed waterquality standards revisions.

-September 7, 1990. The AmericanSamoa Environmental Commissionadopted its proposed water qualitystandards revisions which includenumeric criteria for priority toxicpollutants.

-September 20, 1990. American Samoasubmitted the adopted water qualitystandards to EPA for approval/disapproval.

-September 25,1990. American Samoasubmitted the State Attorney Generalcertification.

-September 27, 1990. EPA approved therevised American Samoa waterquality standards, including fullapproval of the revised numericcriteria for priority pollutants.EPA fully approved the criteria for

priority toxic pollutants adopted byAmerican Samoa on September 27, 1990based on a determination that thecriteria are consistent with option 1 ofthe December 12, 1988 section303(o)(2)(B) guidance document.

If additional information is submittedduring the public comment periodasserting that American Samoa has notfully complied with section 303(c)(2)(B),it will be necessary at that time torespond to those comments andreevaluate the Agency's determinationof full compliance.

Arizona is included in today'sproposal because, although the Stateadopted numeric criteria for somepriority toxic pollutants before the 1987amendments, the State has notcompleted a review of their numericcriteria for priority toxic pollutants inresponse to the statutory requirementand EPA has reason to believe that atleast some additional criteria arenecessary to comply with section303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized .as follows:

-Late 1988. The State submitted aseries of discussion papers.to EPAand the public.

-June 7, 1989. The State submitted draftwater quality standards revisions toEPA for review prior to issuingproposed standards for publiccomment.

-December 11, 1989. The Statetransmitted a Surface Water QualityStandards Triennial Review BriefingBook, dated December 8, 1989, to EPAand the public.

-February 15, 1990. The Statesubmitted, to EPA and the public,draft proposed revisions to its SurfaceWater Quality Standards, ,

-March 16, 1990. The State submittedProposed Surface Water QualityStandards Rules to EPA and thepublic.

-During 1988-90, the State held severalpublic meetings and roundtablesregarding the proposed water qualitystandards.

-October 26, 1990. Arizona preparedrevised draft water quality standardswhich were released for commentOctober 29, 1990.

-December 14. 1990. EPA providedwritten comments to the States.

-January 15, 1991. Arizona prepared are-draft of the water quality standardsfor review and comment.

-February 13, 1991. EPA providedwritten comments to the States.

-May 8, 1991. Arizona approval by theGovernor's Regulatory ReviewCouncil on May 7, 1991 of theNavigable Water Quality Standardsproposed rules and the EconomicImpact Statement.Also announced the schedule of oral

proceedings and availability of theproposed rules.

Today's proposed rulemaking wouldFederally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum. EPA proposes to apply, to allappropriate State waters, thecriteria inproposed § 131.36(b) for all priority toxicpollutants which are not included inapproved State criteria. EPA alsoproposes to promulgate the § 131.36(b)criteria where any previously-approvedState criteria are insufficiently stringentto fully protect all designated uses, orwhere such previously-approved Statecriteria are not applicable to all waterswith relevant State designated uses.EPA invites public comment regardingany specific priority pollutants or waterbodies for which Federal criteria.may

NNOMMENOMMU"58472


not be necessary to protect Statedesignated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for section 303(c)(2)(B) criteria. Formost priority toxic pollutants, however,available data on the discharge andpresence of such pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat section 303(c)(2}(B) criteria arenecessary may be summarized asfollows:-Priority toxic pollutants on the State

Section 304(1) lists (as updated), andsupporting documentation, for whichState criteria have not been adoptedand approved, including metals,dioxin, and some organics.

-State efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for 126 priority toxicpollutants. These efforts representevidence of the State's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.

-STORET data indicating the presencein surface waters of a majority of thepriority toxic pollutants which are notcovered with approved State criteria.

-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.California is included in today's

proposal because, although the State hascompleted a review and adoptednumeric criteria for some priority toxicpollutants for some waters in responseto the statutory requirement, EPA hasreason to believe that at least some

additional criteria are necessary tocomply with section 303(c)(2)(B).Therefore, EPA has determined forpurposes of today's proposedrulemaking that the State is notcurrently in compliance with section303(c)(2}(B) because it has not adoptedwater quality standards consistent withsection 303(c](2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

For ocean waters, the State adoptedrevised criteria on March 22, 1990, andEPA fully approved those criteria onJune 23, 1990. Regarding inland watersand bays and estuaries, the Stateadopted numeric criteria for somepriority toxic pollutants before the 1987amendments and a few site specificcriteria since 1987. Included amongthese criteria are numeric criteria forcopper, cadmium and zinc applicable tothe Sacramento River and its tributariesupstream of Hamilton City adopted bythe State on August 16, 1984, andapproved by EPA on August 7, 1985.Since the 1987 amendments, the Stateadopted numeric monthly mean andmaximum criteria for selenium in theSan Joaquin River from the mouth of theMerced River to Vernalis and monthlymean criteria in flows to GrasslandsWater District, San Luis NationalWildlife Refuge, and Los Banos StateWildlife Area on September 21, 1989;EPA approved these criteria on April 13,1990, and, at the same time, disapprovedselenium criteria for other locations.These approved numeric criteria complywith section 303(c)(2)(B) and are notamended by today's proposedrulemaking. Subsequent to these specificefforts, the State completed a review oftheir numeric criteria for priority toxicpollutants for State inland waters andbays and estuaries and transmittedthem to EPA. EPA has reason to believethat at least some additional criteria arenecessary to comply with section303(c](2)(B). In addition, several partieshave petitioned State Court to restrainthe SWRCB from utilizing the standardsfor inland waters and bays andestuaries.

The State's actions, regarding inlandwaters and bays and estuaries, torespond to the 1987 section 303(c)(2)(B)requirement can be summarized asfollows:-October 6, 1989. The State issued a

staff report proposing methodologiesfor development of water qualitycriteria for statewide plans.

-December 1, 1989. EPA submittedwritten comments to State on itsproposed methodology.

-January 29, 1990. The State issueddraft water quality standards for

inland surface waters and enclosedbays and estuaries for EPA and publicreview.

-February 28 and March 5, 1990. TheState held public hearings onproposed standards revisions.

-March 29, 1990. EPA submittedwritten comments to the State onproposed standards revisions.

-August 16, 1990. The State held apublic workshop on development andimplementation of standards foragricultural drains and ephemeralstreams. (EPA testified.)

-August 22, 1990. EPA submittedwritten comments to the State ondevelopment and implementation ofstandards for agricultural drains andephemeral streams.

-November 2, 1990. The State issuedrevised draft water quality standardsfor EPA and public review.

-December 7, 1990. EPA submittedwritten comments on the revised draftwater quality standards.

-December 10, 1990. The State held ahearing on the revised draftstandards. (EPA testified.)

-February 8, 1991. EPA providedwritten comments to the State re: theagricultural drains section of theInland Surface Waters Plan.

-March 26, 1991. The State issueddrafts of the Statewide Water QualityControl Plans for Inland SurfaceWaters and Enclosed Bays andEstuaries.

-March 27, 1991. EPA provided writtencomments to the San Francisco BayRegional Water Quality Control Boardre: proposed interim objectives fortoxic pollutants in the South Bay.

-April 10, 1991. EPA provided writtencomments to the State re: TheStatewide Water Quality ControlPlans for Inland Surface Waters andEnclosed Bays and Estuaries.

-April 10, 1991. EPA provided writtencomments to the State re: EPA'sposition on how to proceed withdioxin related programs.

-April 11, 1991. The State adopted theStatewide Waters Quality ControlPlans for Inland Surface Water andEnclosed Bays and Estuaries.

-May 10, 1991. The State transmitted toEPA the Statewide Waters QualityControl Plans for Inland SurfaceWater and Enclosed Bays andEstuaries.Today's proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2}(B). Tufully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broad~ythe criteria in proposed § 131.36(b). At a

58473


minimum, EPA proposes to apply, to allState inland waters and bays andestuaries, the criteria in proposed§ 131.36(b) for all priority toxicpollutants which are not included inEPA approved State criteria. EPA alsoproposes to promulgate section303(c)(2)(B) criteria for priority toxicpollutants where any previously-approved State criteria are insufficientlystringent to fully protect all designateduses, or where such previously-approved State criteria are notapplicable to all waters with relevantState designated uses. EPA invitespublic comment regarding any specificpriority pollutants or water bodies forwhich Federal criteria may not benecessary to protect State designateduses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some additional Federalcriteria are necessary to protectdesignated uses. This determination issupported by information in the recordwhich demonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for section 303(c)(2)(B) criteria. Formost priority toxic pollutants, however,available data on the discharge andpresence of such pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat section 303(c)(2)(B) criteria arenecessary may be summarized asfollows:

-priority toxic pollutants discussed inthe State Section 304(1) lists, andsupporting documentation, for whichState criteria have not been adoptedand approved, including metals,dioxin, and some organics,

-State efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants for inland waters andbays and estuaries, as describedabove. The State has completedefforts to adopt new or revisedchemical-specific, numeric criteria for68 priority toxic pollutants. Theseefforts represent evidence of theState's recognition of the need for

numeric criteria for these prioritytoxic pollutants.

-STORET data indicating the'presencein inland waters and bays andestuaries of priority toxic pollutantswhich are not covered with approvedState criteria (e.g., detection of morethan 40 priority toxic pollutants in thewater column).

-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.The Commonwealth of the Northern

Mariana Islands (CNMI) is included intoday's proposal because, although theState adopted numeric criteria for somepriority toxic pollutants before the 1987amendments, the State has notcompleted a review of their-numericcriteria for priority toxic pollutants inresponse to the statutory requirementand EPA has reason to believe that atleast some additional criteria arenecessary to comply with section303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

The Commonwealth's actions torespond to the 1987 section 303(c)(2)(B)requirements can be summarized asfollows:-March 22, 1990. The Commonwealth

transmitted a letter to EPA indicatingthat its water quality standardsrevision process had been delayed.

-March 28, 1991. CNMI submitted draftwater quality standards revisions toEPA for review.

-May 22, 1991. EPA provided commentsto CNMI re: the draft revisedstandards.Today's proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not included inapproved State criteria. EPA alsoproposes to promulgate the § 131.36(b)criteria where any previously-approvedState criteria are insufficiently stringentto fully protect all designated uses, or

,Where such previously-approved Statecriteria are not applicable to all waterswith relevant State designated uses.EPA invites public comment regardingany specific priority pollutants or waterbodies for which Federal criteria maynot be necessary to protect Statedesignated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:

-CNMI efforts since 1987 to adoptadditional numeric criteria for prioritytoxic pollutants, as described above.CNMvI has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for 108 priority toxicpollutants. These efforts representevidence of the CNMI's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.

-STORET data indicating the presencein CNMI waters of priority toxicpollutants which are not covered withapproved CNMI criteria.

Guam has not been included intoday's proposed rulemaking becauseGuam has adopted revised criteria forpriority toxic pollutants in response tothe section 303(c)(2)(B) requirement andreceived full EPA approval.

Guam's response to the 1987 section303(c)(2)(B] requirement can besummarized as follows:

-July 2, 1987. Guam adopted revisedwater quality standards which includenumeric criteria for priority toxicpollutants.

58474


-August 1987. Guam submitted theadopted water quality standards withan Attorney General certification toEPA for approval/disapproval.

-September 30,1987. EPA approved therevised Guam water qualitystandards, including full approval ofthe revised numeric criteria forpriority toxic pollutants. EPA fullyapproved the criteria for priority toxicpollutants adopted by Guam on July 2,1987. It has been determined sincethat time that the criteria areconsistent with option 1 of theDecember 12, 1988 section 303(c)(2)(B)guidance document.If additional information is submitted

during the public comment periodasserting that Guam has not fullycomplied with section 303(c](2)(B), it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Hawaii is included in today's proposalbecause, although the State hascompleted a review and adoptednumeric criteria for some priority toxicpollutants in response to the statutoryrequirement. EPA has reason to believethat at least some additional criteria arenecessary to comply with section303(c)(2)(BJ. Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)[2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

The State's actions to respond to the1987 section 303(c)(2)(B) requirementscan be summarized as follows:-January 8, 1990. The State adopted

revised criteria.-February 9, 1990. Hawaii submitted

the adopted water quality standardswith a State Attorney Generalcertification to EPA for approval/disapproval.

-May 9, 1990. EPA approved Hawaii'swater quality standards noting thatomission of human health limits forfive toxic metals precluded fullsatisfaction of the section 303(c)(2)(B)requirement.

-May 29, 1990. The State responded tothe EPA approval indicating plans toadopt human health limits for the fivetoxic metals.

-July 13, 1990. EPA clarified portions ofthe May 1990 approval letter.Because the State has adopted criteria

for priority toxic pollutants using anoption I approach as described in EPA'sDecember 12, 1988 guidance documentEPA is taking an approach of proposing

criteria for all remaining priority toxicpollutants which have been the subjectof section 304(a)(1) criteriarecommendations. EPA believes that thedischarge or presence of these prioritytoxic pollutants can reasonably beexpected to interfere with designateduses in the State and that Federalcriteria therefore are necessary to.protect Hawaii designated uses. Thisconclusion is based on the followinginformation in the record:-priority toxic pollutants on the State

section 304(l) lists for which Statecriteria have not been adopted andapproved, Including these metals,

-STORET data indicating the presencein surface waters of these prioritytoxic pollutants.Nevada is included in today'sproposal because, although the Statehas completed a review and adoptednumeric criteria for some prioritytoxic pollutants in response to thestatutory requirement, EPA hasreason to believe that at least someadditional criteria are necessary tocomply with section 303(c)(2)(B).Therefore, EPA has determined forpurposes of today's proposedrulemaking that the State is notcurrently in compliance with section303(c)(2)(B) because it has notadopted water quality standardsconsistent with section 303(c)(2)(B)which have been fully approved bythe appropriate EPA RegionalAdministrator.The State's actions to respond to the

1987 section 303(c)(2)(B) requirementcan be summarized as follows:-May 24, 1988. The State held a public

hearing on it's proposed water qualitystandards revisions.

-September 12, 1988. The Statesubmitted draft water qualitystandards revisions to EPA and thepublic for review.

-September 20, 1988. EPA providedcomments to Nevada regarding itsproposed water quality standards fortoxics.

-October 21, 1988. The State submittedrevisions to the Nevada toxic materialdefinition and bioassay procedures toEPA and the public for review.

-November 10. 1988. The State held apublic hearing on its proposed waterquality standards revisions.

-November 29, 1988. The State held apublic hearing on its proposed waterquality standards revisions.(Revisions to the definition of "toxic"were adopted following this hearing.)

-May 31, 1989. The State submitteddraft water quality standardsrevisions to EPA and the public forreview.

-June 22,1989. EPA provided commentsto Nevada regarding its proposedstandards for toxics.

-August 9, 1989. The State submitteddraft water quality standardsrevisions to EPA and the public forreview.

-August 22,1989. The State submitteddraft water quality standardsrevisions and rationale to EPA.

-September 18,1989. EPA providedcomments on Nevada's proposedwater quality standards for toxics.

-September 27, 1989. The State held apublic hearing on its proposed waterquality standards revisions.(Revisions to the bioassayrequirements as part of the narrativetoxics standard were adoptedfollowing this hearing.)

-February 2M,1990. The Statesubmitted draft water qualitystandards revisions to EPA and thepublic for review.

-March 27, 1990. EPA providedcomments on Nevada's proposedFebruary 26, 1990 toxics standards.

-March 28, 1990. The State held apublic hearing on its proposed waterquality standards revisions.

-May 2, 1990. EPA provided commentsregarding the latest proposedstandards revisions.

-May 2, 1990. The State adopted waterquality standards revision whichincluded some numeric criteria forpriority toxic pollutants.

-August 23, 1990. State transmittedapproved water quality standardsrevisions without a State AttorneyGeneral Certification to EPA forapproval/disapproval.

-September 28,1990. The StateAttorney General certified the May 2,1990 adoption.

-January 16, 1991. EPA approved inpart and disapproved in partstandards adopted by the State andnotified them of the actions theyneeded to take pursuant to thedisapproval and that they had notfully satisfied section 303[cJt2)(B).

-March 14, 1991. The State respondedto the January 1991 approval/disapproval of standards.Today's proposed rulemaking would

Federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(Z)B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not included inapproved State criteria. EPA also

58475


proposes to promulgate the § 131.36(b)criteria where any previously-approvedState criteria are insufficiently stringentto fully protect all designated uses, orwhere such previously-approved Statecriteria are. not applicable to all waterswith relevant State designated uses.EPA invites public comment regardingany specific priority pollutants or waterbodies for which Federal criteria maynot be necessary to protect Statedesignated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedtodetermine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for criteria. For most priority toxicpollutants, however, available data onthe discharge and presence of suchpollutants are spatially and temporallylimited. Nevertheless, EPA believes thatthe data for many of these pollutants aresufficient to satisfy the "reasonableexpectation" test established in section303(c)(2)(B). The information in therecord which demonstrates that prioritytoxic pollutants are discharged orpresent and that section 303(c)(2)(B)criteria are necessary may besummarized as follows:-State efforts since 1987 to adopt

additional numeric criteria for prioritytoxic pollutants, as described above.The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for 108 priority toxicpollutants. These efforts representevidence of the State's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.


-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.The Trust Territories of the Pacific

Islands (Palau) has not been included intoday's proposed rulemaking because

Palau has adopted revised criteria forpriority toxic pollutants in response tothe section 303(c)(2)(B) requirement andreceived full EPA approval.

Palau's response to the 1987 section303(c)(2)(B) requirement can besummarized as follows:-November 7, 1990. Palau adopted

revised water quality standards whichinclude numeric criteria for prioritytoxic pollutants.

-December 12, 1990. Palau submittedthe adopted water quality standardswith an Attorney General certificationto EPA for approval/disapproval.

-January 11, 1991. EPA approved therevised Palau water quality standards,including full approval of the revisednumeric criteria for priority toxicpollutants.EPA fully approved the criteria for

priority toxic pollutants adopted byPalau on January 11, 1991 based on adetermination that the criteria areconsistent with option I of the December12, 1988 section 303(c)(2)(B) guidancedocument.

If additional information is submittedduring the public comment periodasserting that Palau has not fullycomplied with section 303(c)(2)(B), it willbe necessary at that time to resp6nd tothose comments and reevaluate theAgency's determination of fullcompliance.

Region 10

Alaska is included in today's proposalbecause although the State hadpreviously adopted all section 304(a)criteria by reference, the State AttorneyGeneral has decided that the adoptionby reference is invalid. Based oninformation in the record (see below),EPA has reason to believe that at leastsome criteria are necessary to complywith section 303(c)(2)(B). Therefore, EPAhas determined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c)(2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Alaska's actions to respond to the1987 section 303(c)(2)(B) requirementcan be summarized as follows:-December 20, 1989. The State

submitted draft water qualitystandards revisions to EPA and thepublic for review

-April 6, 1990. The State held publichearings and accepted writtencomments on its proposed waterquality standards revisions throughthis date.

-On November 4, 1991, Region 10 senta letter to the State partiallyapproving the State's incorporation byreference of EPA's toxic pollutantcriteria: and noting the deficiencieswhich will be included in EPA'sproposed rulemaking (e.g. Alaska'sfailure to adopt a human healthcriteria).

This proposed rulemaking wouldfederally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be. necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However; EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-State efforts since 1987 to adopt

additional numeric criteria for prioritytoxic pollutants, as described above.

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Federal Register / Vol. 56, No. 223 / Tuesday, November 19, 1991 J Proposed Rules

The State has initiated (but notcompleted) efforts to adopt new orrevised chemical-specific, numericcriteria for 103 priority toxicpollutants. These efforts representevidence of the State's recognition ofthe need for numeric criteria for thesepriority toxic pollutants.

-STORET data indicating the presencein surface waters of priority toxicpollutants which are not currentlycovered with approved State criteria.

-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.Idaho is included in today's proposal

because although the State adoptedsome numeric criteria for human healthprotection for some priority toxicpollutants before the 1987 amendments,the State has not completed a review oftheir numeric criteria for priority toxicpollutants in response to the statutoryrequirement. Furthermore, the State'scriteria protecting human health arebased only on drinking water maximumcontaminant levels: fish consumption isnot protected, and EPA has reason tobelieve that at least some additionalcriteria are necessary to comply withsection 303(c)(2)(B). Therefore, EPA hasdetermined for purposes of today'sproposed rulemaking that the State isnot currently in compliance with section303(c](2)(B) because it has not adoptedwater quality standards consistent withsection 303(c)(2)(B) which have beenfully approved by the appropriate EPARegional Administrator.

Idaho's action to respond to the 1987section 303(c)(2)(B) requirement can besummarized as follows:-July 23, 1990. The State submitted

draft water quality standardsrevisions to EPA and the public for

review.This proposed rulemaking would

federally promulgate the criterianecessary to bring the State into fullcompliance with section 303(c)(2](B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously approved State criteria areinsufficiently stringent to fully protectall designated uses. or where such

previously aapproved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determinedthat at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2)(B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-Priority toxic pollutants on the State

Section 304(1) short list for whichState criteria have not been adoptedand approved, including metals andsome organics.


-Discharge to surface waters of prioritypollutants for which sufficient Statenumeric criteria have not beenadopted, based on data in the ToxicsRelease Inventory database and/orthe Permit Compliance Systemdatabase.Oregon has not been included in

today's proposed rulemaking becausethe State has adopted revised criteriafor priority toxic pollutants in responseto the section 303(c](2)(B) requirementand received full EPA approval.

The State's response to the 1987section 303(c)(2)(B) requirement can besummarized as follows.-August 28, 1987. The State adopted

revised water quality standards which -included numeric criteria for prioritytoxic pollutants.

-January 26, 1988. The State submittedthe adopted water quality standards

with a State Attorney Generalcertification to EPA for approval/disapproval.

-March 9,1988. EPA approved therevised State water quality standards,including full approval of the revisednumeric criteria for priority toxicpollutants.EPA fully approved the criteria for

priority toxic pollutants adopted byOregon on February 12, 1989 as beingconsistent with option 2 of theDecember 12, 1988 section 303(c)(2)(B)guidance document.

If additional information is submittedduring the public comment periodasserting that the State has not fullycomplied with section 303(c)(2) 13) it willbe necessary at that time to respond tothose comments and reevaluate theAgency's determination of fullcompliance.

Washington is included In today'sproposal because although the Stateadopted numeric criteria for somepriority toxic pollutants before the 1987amendments, the State has not adoptednumeric criteria for any human healthbased criteria for priority pollutants, andEPA has reason to believe that at leastsome additional criteria are necessaryto comply with section 303(c(2)(B).Therefore, EPA has determined forpurposes of today's proposedrulemaking that the State is notcurrently in compliance with section303(c)(2)(B because it has not adoptedwater quality standards consistent withsection 303(c)(2](B) which have beenfully approved by the appropriate EPARegional Administrator.

Washington adopted 26 freshwaterand marine criteria which EPA fullyapproved on March 4, 1988 (see below).The State has not completed a review oftheir criteria for priority toxic pollutantsin response to the statutory requirementand EPA has reason to believe that atleast some additional criteria arenecessary to comply with section303(c)}2)(B).

The State's actions to respond to the1987 section 303(c)(2](B) requirementcan be summarized as follows:-February 9, 1988. The State submitted

the adopted water quality standardswith a State Attorney Generalcertification to EPA for approval/disapproval.

-March 4, 1988. EPA approved therevised State water quality standards.

-July 20, 1990. Washington released its* proposed water quality standards

with public comments acceptedthrough this date..This proposed rulemaking woula

Federally promulgate the criteria

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necessary to bring the State into fullcompliance with section 303(c)(2)(B). Tofully protect State designated uses, andto ensure that the required criteria areadopted, EPA proposes to apply broadlythe criteria in proposed § 131.36(b). At aminimum, EPA proposes to apply, to allappropriate State waters, the criteria inproposed § 131.36(b) for all priority toxicpollutants which are not the subject ofapproved State criteria. EPA alsoproposes to promulgate Federal criteriafor priority toxic pollutants where anypreviously-approved State criteria areinsufficiently stringent to fully protectall designated uses, or where suchpreviously-approved State criteria arenot applicable to all appropriate Statedesignated uses. EPA invites publiccomment regarding any specific prioritypollutants or water bodies for whichFederal criteria may not be necessary toprotect State designated uses.

For reasons which are fully discussedin the preamble, EPA has not attemptedto determine the specific prioritypollutants and water bodies that requirecriteria. However, EPA has determined

that at least some Federal criteria arenecessary to protect designated uses.This determination is supported byinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present insurface waters at levels that canreasonably be expected to interfere withState designated uses. For some prioritytoxic pollutants, available data clearlydemonstrate use impairment and theneed for toxics criteria. For most prioritytoxic pollutants, however, availabledata on the discharge and presence ofpriority toxic pollutants are spatiallyand temporally limited. Nevertheless,EPA believes that the data for many ofthese pollutants are sufficient to satisfythe "reasonable expectation" testestablished in section 303(c)(2](B). Theinformation in the record whichdemonstrates that priority toxicpollutants are discharged or present andthat Federal criteria are necessary maybe summarized as follows:-Priority toxic pollutants on the State

Section 304(1) short list for whichState criteria have not been adopted

and approved, including metals andsome organics.




[FR Doc. 91-27270 Filed 11-18-91: 8:45 am]BILLING CODE 6560-SO-M

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