Whole Effluent Toxicity: Guidelines Establishing Test Procedures for the Analysis of Pollutants; Final Rule, Technical Corrections

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: February 2, 1999 (Volume 64, Number 21)]
[Rules and Regulations]
[Page 4975-4978]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02fe99-7]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 136

[FRL-6227-4]

Whole Effluent Toxicity: Guidelines Establishing Test Procedures
for the Analysis of Pollutants; Final Rule, Technical Corrections

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule, technical corrections.

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SUMMARY: EPA is amending the ``Guideline Establishing Test Procedures
for the Analysis of Pollutants'' at 40 CFR part 136 for whole effluent
toxicity (WET) testing under the Clean Water Act, and also is amending
three technical documents incorporated by reference in those
regulations. The amendments correct minor errors and omissions, provide
technical clarifications, and establish consistency among the technical
documents.

DATES: These corrections are effective March 4, 1999. The incorporation
by reference of the publication dates listed in this rule is approved
by the Director of the Office of the Federal Register on March 4, 1999.
In accordance with 40 CFR 23.2, this rule shall be considered issued
for the purposes of judicial review February 16, 1999, at 1:00 pm EST.

FOR FURTHER INFORMATION CONTACT: Marion Thompson, Engineering and
Analysis Division (4303), U.S. Environmental Protection Agency, Office
of Science and Technology, 401 M Street, SW, Washington, DC 20460, or
call (202) 260-7117; or Teresa J. Norberg-King, National Health and
Environmental Effects Research Laboratory, Mid-Continent Ecology
Division, Office of Research and Development, U.S. Environmental
Protection Agency, 6201 Congdon Boulevard, Duluth, MN 55804, or call
(218) 529-5163.

SUPPLEMENTARY INFORMATION:

I. Background

In 1995, EPA amended the ``Guidelines Establishing Test Procedures
for the Analysis of Pollutants,'' 40 CFR part 136, to add whole
effluent toxicity (WET) testing methods to the list of Agency approved
methods in Tables IA and II, for data gathering and compliance
monitoring under the Clean Water Act (60 FR 53529, October 16, 1995).
This ``WET final rule'' amended 40 CFR 136.3 by adding methods that
employ standardized freshwater, marine, and estuarine vertebrates,
invertebrates, and plants to directly measure the acute and short-term
chronic toxicity of effluents and receiving waters. The WET final rule
incorporated the following three technical documents by reference:
Methods for Measuring the Acute Toxicity of Effluents and Receiving
Water to Freshwater and Marine Organisms; Fourth Edition, August 1993
(EPA/600/4-90/027F); Short-Term Methods for Estimating the Chronic
Toxicity of Effluents and Receiving Water to Freshwater Organisms,
Third Edition, July 1994 (EPA/600/4-91/002); and Short-Term Methods for
Estimating the Chronic Toxicity of Effluents and Receiving Water to
Marine and Estuarine Organisms, Second Edition, July 1994 (EPA/600/4-
91/003).
The WET final rule and the aquatic toxicity test manuals contained
various minor errors; today's amendments correct typographical errors
and minor omissions. These amendments also provide technical
clarifications and changes for consistency among the three test
manuals.
The Administrative Procedure Act, 5 U.S.C. 553, states that when an
Agency finds good cause, it may issue a rule without first providing
for notice and comment. This rule corrects typographical errors and
minor omissions, and provides consistency among the WET final rule and
the aquatic toxicity test manuals incorporated by reference at 40 CFR
136.3. Today's revisions eliminate confusion and provide clarification.
The revisions are not substantive. Most of these minor, non-substantive
corrections were brought to the Agency's attention by the public.
Therefore, prior notice and public opportunity for comment is
unnecessary.

II. Corrections to the Regulation

This rule corrects typographical errors and minor omissions and
provides consistency in the regulatory language and the three aquatic
toxicity test manuals incorporated by reference in the WET final rule.
Corrections include replacing or amending text with appropriate wording
for clarification and consistency.
Specifically, this rule corrects a typographical error in the
regulatory language for the WET final rule in Table II at Sec. 136.3(e)
by changing the ``maximum holding time'' for aquatic toxicity tests
from 6 hours to 36 hours. Despite the inclusion of the correct 36 hour
maximum holding time in the aquatic toxicity test manuals, 6 hours was
inadvertently listed in the regulatory language for the WET final rule.
The Agency's intention was to include the 36 hour maximum holding time
in the regulatory language for the WET final rule.
This rule also incorporates by reference an ``errata'' document
that lists specific corrections to each aquatic toxicity test manual
incorporated by reference in the WET final rule. The following three
paragraphs (A, B, and C) describe the errata for each aquatic toxicity
methods manual and address specific corrections included in each manual
that the Agency believes require further explanation. The title of the
errata document is: Errata for the Effluent and Receiving Water
Toxicity Testing Manuals: Acute Toxicity of Effluents and Receiving
Waters to Freshwater and Marine Organisms; Short-Term Methods for
Estimating the Chronic Toxicity of Effluents and Receiving Waters to
Freshwater Organisms; and Short-Term Methods for Estimating the Chronic
Toxicity of Effluents and Receiving Waters to Marine and Estuarine
Organisms (EPA-600/R-98/182, January 1999). A listing of the reference
for this errata document and where it can be viewed or obtained is
provided in Sections IV and V of this notice.

[[Page 4976]]

A. Corrections to Acute Manual

There are eight items in the errata: Methods for Measuring the
Acute Toxicity of Effluents and Receiving Waters to Freshwater and
Marine Organisms (hereinafter, acute manual). Four items (Items 1, 2, 3
and 7) establish consistent language among the three test manuals to
prevent confusion. When the WET rule was promulgated in 1995, the
language in the acute manual should have been the same as the language
included in the other two manuals. Upon close consideration after
rulemaking, it became apparent that the acute manual (published in
1993) did not include portions of the other manuals (published in
1994). Today's amendments, by incorporation of the errata document,
correct those omissions. Items 4 and 8 correct typographical errors and
minor omissions. Items 5 and 6 correct typographical errors to avoid
confusion regarding the supplemental test species list (Appendix B) and
the recommended test conditions for Cyprinella leedsi and Holmesimysis
costata. The name change of the species Notropis leedsi to Cyprinella
leedsi occurred after publication of acute manual and the correct
reference for this change is now cited.

B. Corrections to Freshwater Chronic Manual

There are 10 items in the errata: Short-Term Methods for Estimating
the Chronic Toxicity of Effluents and Receiving Waters to Freshwater
Organisms (hereinafter, freshwater chronic manual). For Item 1, the
section regarding effluent sampling in the freshwater chronic manual
are identical to those included in the acute manual. This language is
inappropriate and not intended for chronic tests because excessive
testing would be done and flow-through tests are not conducted for the
short-term tests in the freshwater chronic manual. Items 2 and 3
clarify the wording that describes the handling and feeding of nauplii.
Items 4, 5, 6, 7, and 9 are minor typographical corrections. Item 8
provides consistency in terminology and prevents confusion in the
reporting of survival values in the test controls and the mean number
of young per female for the Ceriodaphnia dubia test. Item 10 corrects
errors made in presenting the LC<INF>50</INF> value.

C. Corrections to Marine and Estuarine Chronic Manual

There are nine items in the errata: Short-Term Methods for
Estimating the Chronic Toxicity of Effluents and Receiving Waters to
Marine and Estuarine Organisms (hereinafter, marine and estuarine
chronic manual). For Item 1, the section regarding effluent sampling in
the marine and estuarine chronic manual are identical to those included
in the acute manual. This language is inappropriate and not intended
for chronic tests and would, therefore, cause excessive testing because
flow-through tests are not included for the short-term chronic tests
included in the marine and estuarine chronic manual. Items 2, 4, 5, 6,
7, 8 and 9 correct typographical errors. Item 3 corrects an
inconsistency between the tabulated data and the probit analysis of
that data.

III. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review by the Office of Management and Budget. In addition,
this action does not impose any enforceable duty, contain any unfunded
mandate, or impose any significant or unique impact on small
governments as described in the Unfunded Mandates Reform Act of 1995
(Pub. L. 104-4). This rule also does not require prior consultation
with State, local, and tribal government officials as specified by
Executive Order 12875 (58 FR 58093, October 23, 1993) or Executive
Order 13084 (63 FR 27655, May 10, 1998), or involve special
consideration of environmental justice related issues as required by
Executive Order 12898 (59 FR 7629, February 16, 1994). Because this
action is not subject to notice-and-comment requirements under the
Administrative Procedure Act or any other statute, it is not subject to
the regulatory flexibility provisions of the Regulatory Flexibility Act
(5 U.S.C. 601 et seq.). This rule also is not subject to Executive
Order 13045 (62 FR 19885, April 23, 1997) because EPA interprets E.O.
13045 as applying only to those regulatory actions that are based on
health or safety risks, such that the analysis required under section
5-501 of the Order has the potential to influence the regulation. This
rule is not subject to E.O. 13045 because it does not establish an
environmental standard intended to mitigate health or safety risks.
This action contains no information collection requirements. Therefore,
no information collection request has been submitted to the Office of
Management and Budget (OMB) for review and approval under the Paperwork
Reduction Act of 1980, 44 U.S.C. 3501 et seq.
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of Congress and to the Comptroller General of the United
States. However, section 808 provides that any rule for which the
issuing agency for good cause finds (and incorporates the finding and a
brief statement of reasons therefor in the rule) that notice and public
procedure thereon are impracticable, unnecessary, or contrary to the
public interest, shall take effect at such time as the Agency
promulgating the rule determines. 5 U.S.C. 808(2). As stated
previously, EPA has made such a good cause finding, including the
reasons therefor, and established an effective date of March 4, 1999.
EPA will submit a report containing this rule and other required
information to the U.S. Senate, the U.S. House of Representatives, and
the Comptroller General of the United States prior to publication of
the rule in the Federal Register. This rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).

IV. Materials Incorporated by Reference Into 40 CFR Part 136

USEPA, 1999. Errata for the Effluent and Receiving Water Toxicity
Testing Manuals: Acute Toxicity of Effluents and Receiving Waters to
Freshwater and Marine Organisms; Short-Term Methods for Estimating the
Chronic Toxicity of Effluents and Receiving Waters to Freshwater
Organisms; and Short-Term Methods for Estimating the Chronic Toxicity
of Effluents and Receiving Waters to Marine and Estuarine Organisms.
January 1999. U.S. Environmental Protection Agency, Office of Research
and Development, Duluth, MN. EPA-600/R-98/182.

V. Public Availability of Materials To Be Incorporated by Reference

The full text of the errata document incorporated by reference in
today's rulemaking will be available to the general public from the
following sources:
Water Docket: Paper version of the errata document, along with the
public record for this rule and the WET final rule, are available from
the U.S. Environmental Protection Agency, Water Docket, 401 M Street
SW, Washington, DC 20460. For access to these materials, call 202-260-
3027 on Monday through Friday, excluding Federal holidays, between 9:00
a.m. and 3:30 p.m. Eastern Time for an appointment.

[[Page 4977]]

Internet: Electronic version is available via the Internet at
http://www.epa.gov/OST.
National Center for Environmental Publications and Information
(NCEPI): Electronic or paper version is available from the U.S.
Environmental Protection Agency, National Center for Environmental
Publications and Information (NCEPI), P.O. Box 42419, Cincinnati, OH
45242 by phone at 1-800/490-9198, fax at (513) 489-8695, or via the
Internet at http://www.epa.gov/ncepihom.
EPA Office of Water Resource Center: Electronic or paper version is
available from the Water Resource Center, 401 M Street, SW, Washington,
DC 20460 by phone at (202) 260-7786.
EPA Regional Office Libraries: EPA has 10 Regional offices around
the country, each with a publicly accessible library. Copies of the
errata document can be viewed and copied at these EPA Regional
libraries: EPA Region I, JFK Federal Building, One Congress Street,
Boston, MA 02203-0001, (617) 918-1111; EPA Region 2, 290 Broadway, New
York, NY 10007, (212) 637-3185; EPA Region 3, 1650 Arch Street,
Philadelphia, PA 19103-2029, (215) 814-5000; EPA Region 4, Sam Nunn
Atlanta Federal Center, 61 Forsythe Street SW, Atlanta, GA 30303, (404)
562-8190; EPA Region 5, 77 West Jackson Blvd., Chicago, IL 60604-3507,
(312) 353-2022; EPA Region 6, First Interstate Bank Tower at Fountain
Place, 1445 Ross Avenue, 12th Floor, Suite 1200, Dallas, TX 75202-2733,
(214) 665-6424; EPA Region 7, 726 Minnesota Avenue, Kansas City, KS
66101, (913) 551-7003; EPA Region 8, 999 18th Street, Suite 500,
Denver, CO 80202-2466, (303) 312-6312; EPA Region 9, 75 Hawthorne
Street, San Francisco, CA 94105, (415) 744-1570; EPA Region 10, 1200
Sixth Avenue, Seattle, WA 98101, (206) 553-1200.
Public Libraries: A summary of this rule and the errata document
have been placed in the combined catalogues of the Online Computer
Library Center (OCLC) in Columbus, Ohio, available to all member
libraries across the country (approximately 13,000). This summary will
facilitate public access through interlibrary loans from the Regional
EPA libraries. Through OCLC, EPA has placed the summary and access
information in the Online Library System. Finally, EPA has provided the
national association of public libraries with a summary of this rule
and the errata document as a way of emphasizing their availability.
The errata document will also be available for viewing and copying
through the following state library associations: Alabama Library
Association, 400 S. Union Street, Suite 140, Montgomery, AL 36104;
Alaska Library Association, PO Box 81084, Fairbanks, AL 99708-1084;
Arizona State Library Association, 14449 North 73rd Street, Scottsdale,
AZ 85260-7838; Arkansas Library Association, 9 Shackleford Plaza, Suite
1, Little Rock, AR 72203; California Library Association, 717 K.
Street, Suite 300, Sacramento, CA 95814-3477; Colorado Library
Association, 4350 Wadsworth Boulevard, #340, Wheat Ridge, CO 80033;
Connecticut Library Association, Franklin Commons, 106 Route 32,
Franklin, CT 06254; Delaware Library Association, PO Box 816,
Wilmington, DE 19903; District of Columbia Library Association, PO Box
14177, Benjamin Franklin Station, Washington, DC 20044; Florida Library
Association, 1133 W. Morse Blvd., Winter Park, FL 32789-3788; Georgia
Library Association, c/o SOLINET, 1438 West Peachtree Street NW,
Atlanta, GA 30309-2955; Guam Library Association, PO Box 22515 GFM,
Barrigada, GU 96921; Hawaii Library Association, PO Box 4441, Honolulu,
HI 96813; Idaho Library Association, 3577 East Pecan, Boise, ID 83716-
7115; Illinois Library Association, 33 W. Grand Avenue, #301, Chicago,
IL 60610; Indiana Library Federation 6408 Carrollton Avenue,
Indianapolis, IN 46220-1615; Iowa Library Association, 505 Fifth
Avenue, Suite 823, Des Moines, IA 50309; Kansas Library Association,
South Central Kansas Library System, 901 N. Main, Hutchinson, KS 67501-
4401; Kentucky Library Association, 1501 Twilight Tr., Frankfort, KY
40601; Louisiana Library Association, PO Box 3058, Baton Rouge, LA
70821; Maine Library Association, Community Drive, Augusta, ME 04330;
Maryland Library Association, 400 Cathedral Street, 3rd Floor,
Baltimore, MD 21201; Massachusetts Library Association, Countryside
Offices 707 Turnpike St., North Andover, MA 08145; Michigan Library
Association, 6810 S. Cedar, Suite 6, Lansing, MI 48911; Minnesota
Library Association, 1315 Lowrey Avenue, N. Minneapolis, MN 55411-1398;
Mississippi Library Association, PO Box 20488, Jackson, MS 39289-1448;
Missouri Library Association, 1306 Business 63 South, Suite B,
Columbia, MO 65201; Montana Library Association, 507 Fifth Avenue,
Helena, MT 59601-4359; Nebraska Library Association, 1422 Boswell
Avenue, Box 98, Crete, NE 68333; Nevada Library Association, 100
Stewart Street, Carson City, NV 89710; New Hampshire Library
Association, PO Box 2322, Concord, NH 03235; New Jersey Library
Association, Box 1534, Trenton, NJ 08607; New Mexico Library
Association, PO Box 26074, Albuquerque, NM 87125; New York Library
Association, 252 Hudson Avenue, Albany, NY 12210; North Carolina
Library Association, State Library of North Carolina, 109 East Jones
Street, Raleigh, NC 27601; North Dakota Library Association, University
of North Dakota-Lake Region, 1800 N. College Drive, Devil's Lake, ND
58301; Ohio Library Council, 35 E. Gay Street, Suite 305, Columbus, OH
43215; Oklahoma Library Association, 300 Hardy Drive, Edmond, OK 73013;
Oregon Library Association, PO Box 2042, Salem, OR 97308; Pennsylvania
Library Association, 1919 N. Front Street, Harrisburg, PA 17110; Rhode
Island Library Association, PO Box 7858, Warwick, RI 02887-7858; South
Carolina Library Association, PO Box 219, Goose Creek, SC 29445; South
Dakota Library Association, PO Box 673, Pierre, SD 57501; Tennessee
Library Association, PO Box 158417, Nashville, TN 37215-8417; Texas
Library Association, 3355 Bee Cave Road, #401, Austin, TX 78746; Utah
Library Association, PO Box 711789, Salt Lake City, UT 84171-1789;
Vermont Library Association, Box 803, Burlington, VT 05402-0803; St.
Thomas/St. John Library Association, University of Virgin Islands, St.
Thomas, VI 00802; St. Croix Library Association, PO Box 306164,
Veterans Drive Station, Charlotte Amalie, VI 00803; Virginia Library
Association, PO Box 8277, Norfolk, VA 23503-0277; Washington Library
Association, 4016 First Avenue NE, Seattle, WA 98105-6502; West
Virginia Library Association, PO Box 5221, Charleston, WV 25361;
Wisconsin Library Association, 5250 East Terrace Drive, Suite A,
Madison, WI 53718-8345; Wyoming Library Association, Sweetwater County
Library, PO Box 550, Green River, WY 82935.
A limited number of copies of the errata document incorporated by
reference will be available from the EPA Regional offices and the State
NPDES permitting offices. Finally, after first printing, copies will be
available from the National Technical Information Service (NTIS),
Springfield, VA by phone at (703) 487-4650, by fax at (703) 321-8547,
or via the Internet at http://www.ntis.gov. NTIS is an organization
within the U.S. Department of Commerce.
EPA is also notifying the following groups of the availability of
these documents: International Association of Environmental Testing
Laboratories; American Society of Testing Materials; Society of
Environmental Toxicology

[[Page 4978]]

and Chemistry; American Chemical Society; Water Environment Federation;
Association of Metropolitan Sewerage Agencies; AOAC International; and
EPA's Discharge Monitoring Requirement Quality Assurance Program.

List of Subjects in 40 CFR Part 136

Environmental protection, Analytical methods, Incorporation by
reference, Monitoring, Reporting and recordkeeping requirements, Waste
treatment and disposal, Water pollution control.
Dated: January 22, 1999.
J. Charles Fox,
Assistant Administrator, Office of Water.

For the reasons set out in the preamble, Part 136, title 40,
chapter I of the Code of Federal Regulations, is amended as follows:

PART 136--GUIDELINES ESTABLISHING TEST PROCEDURES FOR THE ANALYSIS
OF POLLUTANTS

1. The authority citation for Part 136 continues to read as
follows:

Authority: Secs. 301, 304(h), 307, and 501(a) Pub. L. 95-217, 91
Stat. 1566, et seq. (33 U.S.C. 1251, et seq.) (the Federal Water
Pollution Control Act Amendments of 1972 as amended by the Clean
Water Act of 1977.)

2. Section 136.3 is amended by adding paragraph (b)(41) and
revising the entry for ``Table IA--Aquatic Toxicity Tests'' in
paragraph (e) Table II as follows:

Sec. 136.3 Identification of test procedures.

* * * * *
(b) * * *
(41) USEPA, January 1999 Errata for the Effluent and Receiving
Water Testing Manuals: Acute Toxicity of Effluents and Receiving Waters
to Freshwater and Marine Organisms; Short-Term Methods for Estimating
the Chronic Toxicity of Effluents and Receiving Waters to Freshwater
Organisms; and Short-Term Methods for Estimating the Chronic Toxicity
of Effluents and Receiving Waters to Marine and Estuarine Organisms.
U.S. Environmental Protection Agency, Office of Research and
Development, Duluth, MN. EPA-600/R-98/182.
* * * * *
(e) * * *

Table II.--Required Containers, Preservation Techniques, and Holding Times
----------------------------------------------------------------------------------------------------------------
Parameter No./name Container \1\ Preservation <SUP>2, <SUP>3 Maximum holding time \4\
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
Table IA--Aquatic Toxicity P,G. Cool, 4 deg.C \16\ 36 hours.
Tests: 6-10 Toxicity, acute and
chronic.

* * * * * *
*
----------------------------------------------------------------------------------------------------------------
\1\ Polyethylene (P) or glass (G). For microbiology, plastic sample containers must be made of sterilizable
materials (polypropylene or other autoclavable plastic).
\2\ Sample preservation should be performed immediately upon sample collection. For composite chemical samples,
each aliquot should be preserved at the time of collection. When use of an automatic sampler makes it
impossible to preserve each aliquot, then chemical samples may be preserved by maintaining at 4C until
compositing and sample splitting is completed.
\3\ When any sample is to be shipped by common carrier or sent through the United States Mails, it must comply
with the Department of Transportation Hazardous Materials Regulations (49 CFR Part 172). The person offering
such material for transportation is responsible for ensuring such compliance. For the preservation
requirements of Table II, the Office of Hazardous Materials, Transportation Bureau, Department of
Transportation, has determined that the Hazardous Materials Regulations do not apply to the following
materials: Hydrochloric Acid (HCl) in water solutions at concentrations of 0.04% by weight or less (pH about
1.96 or greater); Nitric Acid (HNO<INF>3) in water solutions of 0.15% by weight or less (pH about 1.62 or greater);
Sulfuric Acid (H<INF>2 SO<INF>4) in water solutions of 0.35% less (pH about 1.15 or greater); and Sodium Hydroxide
(NaOH) in water solutions at concentrations of 0.080% by weight or less (pH about 12.30 or less).
\4\ Samples should be analyzed as soon as possible after collection. The times listed in the table are the
maximum times that samples may be held before analyses and still be considered valid. Samples used for
toxicity tests are to be used for test initiation or for renewal of test solutions within 36h of collection as
grab samples, or within 36 hours of the collection of the last sample of the composite. Samples for bacteria
or chemical analysis may be held for longer periods than specified in this table only if the permittee or
monitoring laboratory has data on file to show that the specific types of samples under study, the analytes
are stable for the longer time, and has received a variance from the Regional Administrator under Para.
136.3(e). Some samples may not be stable for the maximum time period given in the table. A permittee or
monitoring laboratory is obligated to hold the samples for a shorter time if knowledge exists to show that
this is necessary to maintain sample stability. See Para. 136.3(e) for details. The term ``analyze
immediately'' usually means within 15 minutes or less of sample collection.
* * * * * *
*
\16\ Sufficient ice should be placed with the samples in the shipping container to ensure that ice is still
present when the samples arrive at the laboratory. However, even if ice is present when the samples arrive, it
is necessary to immediately measure the temperature of the samples and confirm that the 4C temperature maximum
has not been exceeded. In the isolated cases where it can be documented that this holding temperature can not
be met, the permittee can be given the option of on-site testing or can request a variance. The request for a
variance should include supportive data which show that the toxicity of the effluent samples is not reduced
because of the increased holding temperature.

[FR Doc. 99-2197 Filed 2-1-99; 8:45 am]
BILLING CODE 6560-50-P

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