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§131.38 Establishment of numeric criteria for priority toxic pollutants for the State of California.
(a) Scope. This section promulgates criteria for priority toxic pollutants in the State of California for inland surface waters and enclosed bays and estuaries. This section also contains a compliance schedule provision.
(b)(1) Criteria for Priority Toxic Pollutants in the State of California as
described in the following table:
a. Criteria revised to reflect the Agency q1* or RfD, as contained in the
Integrated Risk Information System (IRIS) as of October 1, 1996. The fish tissue
bioconcentration factor (BCF) from the 1980 documents was retained in each case.
b. Criteria apply to California waters except for those waters subject to
objectives in Tables III-2A and III-2B of the San Francisco Regional Water
Quality Control Board's (SFRWQCB) 1986 Basin Plan that were adopted by the
SFRWQCB and the State Water Resources Control Board, approved by EPA, and which
continue to apply. For copper and nickel, criteria apply to California waters
except for waters south of Dumbarton Bridge in San Francisco Bay that are
subject to the objectives in the SFRWQCB's Basin Plan as amended by SFRWQCB
Resolution R2-2002-0061, dated May 22, 2002, and approved by the State Water
Resources Control Board. EPA approved the aquatic life site-specific objectives
on January 21, 2003. The copper and nickel aquatic life site-specific objectives
contained in the amended Basin Plan apply instead.
c. Criteria are based on carcinogenicity of 10 (-6) risk.
d. Criteria Maximum Concentration (CMC) equals the highest concentration of a
pollutant to which aquatic life can be exposed for a short period of time
without deleterious effects. Criteria Continuous Concentration (CCC) equals the
highest concentration of a pollutant to which aquatic life can be exposed for an
extended period of time (4 days) without deleterious effects. ug/L equals
micrograms per liter.
e. Freshwater aquatic life criteria for metals are expressed as a function of
total hardness (mg/L) in the water body. The equations are provided in matrix at
paragraph (b)(2) of this section. Values displayed above in the matrix
correspond to a total hardness of 100 mg/l.
f. Freshwater aquatic life criteria for pentachlorophenol are expressed as a
function of pH, and are calculated as follows: Values displayed above in the
matrix correspond to a pH of 7.8. CMC = exp(1.005(pH)−4.869). CCC =
exp(1.005(pH)−5.134).
g. This criterion is based on 304(a) aquatic life criterion issued in 1980,
and was issued in one of the following documents: Aldrin/Dieldrin (EPA
440/5-80-019), Chlordane (EPA 440/5-80-027), DDT (EPA 440/5-80-038), Endosulfan
(EPA 440/5-80-046), Endrin (EPA 440/5-80-047), Heptachlor (440/5-80-052),
Hexachlorocyclohexane (EPA 440/5-80-054), Silver (EPA 440/5-80-071). The Minimum
Data Requirements and derivation procedures were different in the 1980
Guidelines than in the 1985 Guidelines. For example, a "CMC" derived using the
1980 Guidelines was derived to be used as an instantaneous maximum. If
assessment is to be done using an averaging period, the values given should be
divided by 2 to obtain a value that is more comparable to a CMC derived using
the 1985 Guidelines.
h. These totals simply sum the criteria in each column. For aquatic life,
there are 23 priority toxic pollutants with some type of freshwater or
saltwater, acute or chronic criteria. For human health, there are 92 priority
toxic pollutants with either "water + organism" or "organism only" criteria.
Note that these totals count 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 the criteria for chromium to reflect the fact that the list
of 126 priority pollutants includes only a single listing for chromium.
i. Criteria for these metals are expressed as a function of the water-effect
ratio, WER, as defined in paragraph (c) of this section. CMC = column B1 or C1
value×WER; CCC = column B2 or C2 value×WER.
j. No criterion for protection of human health from consumption of aquatic
organisms (excluding water) was presented in the 1980 criteria document or in
the 1986 Quality Criteria for Water. Nevertheless, sufficient information was
presented in the 1980 document to allow a calculation of a criterion, even
though the results of such a calculation were not shown in the document.
k. The CWA 304(a) criterion for asbestos is the MCL.
l. [Reserved]
m. These freshwater and saltwater criteria for metals are expressed in terms
of the dissolved fraction of the metal in the water column. Criterion values
were calculated by using EPA's Clean Water Act 304(a) guidance values (described
in the total recoverable fraction) and then applying the conversion factors in
§131.36(b)(1) and (2).
n. EPA is not promulgating human health criteria for these contaminants.
However, permit authorities should address these contaminants in NPDES permit
actions using the State's existing narrative criteria for toxics.
o. These criteria were promulgated for specific waters in California in the
National Toxics Rule ("NTR"), at §131.36. The specific waters to which the NTR
criteria apply include: Waters of the State defined as bays or estuaries and
waters of the State defined as inland, i.e., all surface waters of the State not
ocean waters. These waters specifically include the San Francisco Bay upstream
to and including Suisun Bay and the Sacramento-San Joaquin Delta. This section
does not apply instead of the NTR for this criterion.
p. A criterion of 20 ug/l was promulgated for specific waters in California
in the NTR and was promulgated in the total recoverable form. The specific
waters to which the NTR criterion applies include: Waters of the San Francisco
Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta;
and waters of Salt Slough, Mud Slough (north) and the San Joaquin River, Sack
Dam to the mouth of the Merced River. This section does not apply instead of the
NTR for this criterion. The State of California adopted and EPA approved a site
specific criterion for the San Joaquin River, mouth of Merced to Vernalis;
therefore, this section does not apply to these waters.
q. This criterion is expressed in the total recoverable form. This criterion
was promulgated for specific waters in California in the NTR and was promulgated
in the total recoverable form. The specific waters to which the NTR criterion
applies include: Waters of the San Francisco Bay upstream to and including
Suisun Bay and the Sacramento-San Joaquin Delta; and waters of Salt Slough, Mud
Slough (north) and the San Joaquin River, Sack Dam to Vernalis. This criterion
does not apply instead of the NTR for these waters. This criterion applies to
additional waters of the United States in the State of California pursuant to 40
CFR 131.38(c). The State of California adopted and EPA approved a site-specific
criterion for the Grassland Water District, San Luis National Wildlife Refuge,
and the Los Banos State Wildlife Refuge; therefore, this criterion does not
apply to these waters.
r. These criteria were promulgated for specific waters in California in the
NTR. The specific waters to which the NTR criteria apply include: Waters of the
State defined as bays or estuaries including the San Francisco Bay upstream to
and including Suisun Bay and the Sacramento-San Joaquin Delta. This section does
not apply instead of the NTR for these criteria.
s. These criteria were promulgated for specific waters in California in the
NTR. The specific waters to which the NTR criteria apply include: Waters of the
Sacramento-San Joaquin Delta and waters of the State defined as inland (
i.e., all surface waters of the State not bays or estuaries or ocean)
that include a MUN use designation. This section does not apply instead of the
NTR for these criteria.
t. These criteria were promulgated for specific waters in California in the
NTR. The specific waters to which the NTR criteria apply include: Waters of the
State defined as bays and estuaries including San Francisco Bay upstream to and
including Suisun Bay and the Sacramento-San Joaquin Delta; and waters of the
State defined as inland (i.e., all surface waters of the State not bays or
estuaries or ocean) without a MUN use designation. This section does not apply
instead of the NTR for these criteria.
u. PCBs are a class of chemicals which include aroclors 1242, 1254, 1221,
1232, 1248, 1260, and 1016, CAS numbers 53469219, 11097691, 11104282, 11141165,
12672296, 11096825, and 12674112, respectively. The aquatic life criteria apply
to the sum of this set of seven aroclors.
v. This criterion applies to total PCBs, e.g., the sum of all congener or
isomer or homolog or aroclor analyses.
w. This criterion has been recalculated pursuant to the 1995 Updates: Water
Quality Criteria Documents for the Protection of Aquatic Life in Ambient Water,
Office of Water, EPA-820-B-96-001, September 1996. See also Great Lakes Water
Quality Initiative Criteria Documents for the Protection of Aquatic Life in
Ambient Water, Office of Water, EPA-80-B-95-004, March 1995.
x. The State of California has adopted and EPA has approved site specific
criteria for the Sacramento River (and tributaries) above Hamilton City;
therefore, these criteria do not apply to these waters.
1. The table in this paragraph (b)(1) lists all of EPA's priority toxic
pollutants whether or not criteria guidance are available. Blank spaces indicate
the absence of national section 304(a) criteria guidance. Because of variations
in chemical nomenclature systems, this listing of toxic pollutants does not
duplicate the listing in Appendix A to 40 CFR Part 423-126 Priority Pollutants.
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: zinc, 3-methyl-4-chlorophenol.
3. Freshwater and saltwater aquatic life criteria apply as specified in
paragraph (c)(3) of this section. (2) Factors for Calculating Metals Criteria. Final CMC and CCC values should
be rounded to two significant figures. (i) CMC = WER × (Acute
Conversion Factor) × (exp{m (ii) CCC = WER ×
(Chronic Conversion Factor) × (exp{m (iii) Table 1 to paragraph (b)(2) of this
section: (iv) Table 2 to paragraph (b)(2) of this section: Note to Table 2 of Paragraph (B)(2): The term "Conversion
Factor" represents the recommended conversion factor for converting a metal
criterion expressed as the total recoverable fraction in the water column to a
criterion expressed as the dissolved fraction in the water column. See "Office
of Water Policy and Technical Guidance on Interpretation and Implementation of
Aquatic Life Metals Criteria", October 1, 1993, by Martha G. Prothro, Acting
Assistant Administrator for Water available from Water Resource Center, USEPA,
Mailcode RC4100, M Street SW, Washington, DC 20460 and the note to
§131.36(b)(1).
(v) Table 3 to paragraph (b)(2) of this section: (c) Applicability. (1) The criteria in paragraph (b) of this section
apply to the State's designated uses cited in paragraph (d) of this section and
apply concurrently with any criteria adopted by the State, except when State
regulations contain criteria which are more stringent for a particular parameter
and use, or except as provided in footnotes p, q, and x to the table in
paragraph (b)(1) of this section.
(2) The criteria established in this section are subject to the State's
general rules of applicability in the same way and to the same extent as are
other Federally-adopted and State-adopted numeric toxics criteria when applied
to the same use classifications including mixing zones, and low flow values
below which numeric standards can be exceeded in flowing fresh waters.
(i) For all waters with mixing zone regulations or implementation procedures,
the criteria apply at the appropriate locations within or at the boundary of the
mixing zones; otherwise the criteria apply throughout the water body including
at the point of discharge into the water body.
(ii) The State shall not use a low flow value below which numeric standards
can be exceeded that is less stringent than the flows in Table 4 to paragraph
(c)(2) of this section for streams and rivers.
(iii) Table 4 to paragraph (c)(2) of this section: Note to Table 4 of Paragraph (c)(2): 1. CMC (Criteria Maximum
Concentration) is the water quality criteria to protect against acute effects in
aquatic life and is the highest instream concentration of a priority toxic
pollutant consisting of a short-term average not to be exceeded more than once
every three years on the average.
2. CCC (Continuous Criteria Concentration) is the water quality criteria to
protect against chronic effects in aquatic life and is the highest in stream
concentration of a priority toxic pollutant consisting of a 4-day average not to
be exceeded more than once every three years on the average.
3. 1 Q 10 is the lowest one day flow with an average recurrence frequency of
once in 10 years determined hydrologically.
4. 1 B 3 is biologically based and indicates an allowable exceedence of once
every 3 years. It is determined by EPA's computerized method (DFLOW model).
5. 7 Q 10 is the lowest average 7 consecutive day low flow with an average
recurrence frequency of once in 10 years determined hydrologically.
6. 4 B 3 is biologically based and indicates an allowable exceedence for 4
consecutive days once every 3 years. It is determined by EPA's computerized
method (DFLOW model).
(iv) If the State does not have such a low flow value below which numeric
standards do not apply, then the criteria included in paragraph (d) of this
section apply at all flows.
(v) If the CMC short-term averaging period, the CCC four-day averaging
period, or once in three-year frequency is inappropriate for a criterion or the
site to which a criterion applies, the State may apply to EPA for approval of an
alternative averaging period, frequency, and related design flow. The State must
submit to EPA the bases for any alternative averaging period, frequency, and
related design flow. Before approving any change, EPA will publish for public
comment, a document proposing the change.
(3) The freshwater and saltwater aquatic life criteria in the matrix in
paragraph (b)(1) of this section apply as follows:
(i) For waters in which the salinity is equal to or less than 1 part per
thousand 95% or more of the time, the applicable criteria are the freshwater
criteria in Column B;
(ii) For waters in which the salinity is equal to or greater than 10 parts
per thousand 95% or more of the time, the applicable criteria are the saltwater
criteria in Column C except for selenium in the San Francisco Bay estuary where
the applicable criteria are the freshwater criteria in Column B (refer to
footnotes p and q to the table in paragraph (b)(1) of this section); and
(iii) For waters in which the salinity is between 1 and 10 parts per thousand
as defined in paragraphs (c)(3)(i) and (ii) of this section, the applicable
criteria are the more stringent of the freshwater or saltwater criteria.
However, the Regional Administrator may approve the use of the alternative
freshwater or saltwater criteria if scientifically defensible information and
data demonstrate that on a site-specific basis the biology of the water body is
dominated by freshwater aquatic life and that freshwater criteria are more
appropriate; or conversely, the biology of the water body is dominated by
saltwater aquatic life and that saltwater criteria are more appropriate. Before
approving any change, EPA will publish for public comment a document proposing
the change.
(4) Application of metals criteria. (i) For purposes of calculating
freshwater aquatic life criteria for metals from the equations in paragraph
(b)(2) of this section, for waters with a hardness of 400 mg/l or less as
calcium carbonate, the actual ambient hardness of the surface water shall be
used in those equations. For waters with a hardness of over 400 mg/l as calcium
carbonate, a hardness of 400 mg/l as calcium carbonate shall be used with a
default Water-Effect Ratio (WER) of 1, or the actual hardness of the ambient
surface water shall be used with a WER. The same provisions apply for
calculating the metals criteria for the comparisons provided for in paragraph
(c)(3)(iii) of this section.
(ii) The hardness values used shall be consistent with the design discharge
conditions established in paragraph (c)(2) of this section for design flows and
mixing zones.
(iii) The criteria for metals (compounds #1 -- #13 in the table in paragraph
(b)(1) of this section) are expressed as dissolved except where otherwise noted.
For purposes of calculating aquatic life criteria for metals from the equations
in footnote i to the table in paragraph (b)(1) of this section and the equations
in paragraph (b)(2) of this section, the water effect ratio is generally
computed as a specific pollutant's acute or chronic toxicity value measured in
water from the site covered by the standard, divided by the respective acute or
chronic toxicity value in laboratory dilution water. To use a water effect ratio
other than the default of 1, the WER must be determined as set forth in Interim
Guidance on Determination and Use of Water Effect Ratios, U.S. EPA Office of
Water, EPA-823-B-94-001, February 1994, or alternatively, other scientifically
defensible methods adopted by the State as part of its water quality standards
program and approved by EPA. For calculation of criteria using site-specific
values for both the hardness and the water effect ratio, the hardness used in
the equations in paragraph (b)(2) of this section must be determined as required
in paragraph (c)(4)(ii) of this section. Water hardness must be calculated from
the measured calcium and magnesium ions present, and the ratio of calcium to
magnesium should be approximately the same in standard laboratory toxicity
testing water as in the site water.
(d)(1) Except as specified in paragraph (d)(3) of this section, all waters
assigned any aquatic life or human health use classifications in the Water
Quality Control Plans for the various Basins of the State ("Basin Plans")
adopted by the California State Water Resources Control Board ("SWRCB"), except
for ocean waters covered by the Water Quality Control Plan for Ocean Waters of
California ("Ocean Plan") adopted by the SWRCB with resolution Number 90-27 on
March 22, 1990, are subject to the criteria in paragraph (d)(2) of this section,
without exception. These criteria apply to waters identified in the Basin Plans.
More particularly, these criteria apply to waters identified in the Basin Plan
chapters designating beneficial uses for waters within the region. Although the
State has adopted several use designations for each of these waters, for
purposes of this action, the specific standards to be applied in paragraph
(d)(2) of this section are based on the presence in all waters of some aquatic
life designation and the presence or absence of the MUN use designation
(municipal and domestic supply). (See Basin Plans for more detailed use
definitions.)
(2) The criteria from the table in paragraph (b)(1) of this section apply to
the water and use classifications defined in paragraph (d)(1) of this section as
follows: (3) Nothing in this section is intended to apply instead of specific
criteria, including specific criteria for the San Francisco Bay estuary,
promulgated for California in the National Toxics Rule at §131.36.
(4) The human health criteria shall be applied at the State-adopted 10 (−6)
risk level.
(5) Nothing in this section applies to waters located in Indian Country.
(e) Schedules of compliance. (1) It is presumed that new and existing
point source dischargers will promptly comply with any new or more restrictive
water quality-based effluent limitations ("WQBELs") based on the water quality
criteria set forth in this section.
(2) When a permit issued on or after May 18, 2000 to a new discharger
contains a WQBEL based on water quality criteria set forth in paragraph (b) of
this section, the permittee shall comply with such WQBEL upon the commencement
of the discharge. A new discharger is defined as any building, structure,
facility, or installation from which there is or may be a "discharge of
pollutants" (as defined in 40 CFR 122.2) to the State of California's inland
surface waters or enclosed bays and estuaries, the construction of which
commences after May 18, 2000.
(3) Where an existing discharger reasonably believes that it will be
infeasible to promptly comply with a new or more restrictive WQBEL based on the
water quality criteria set forth in this section, the discharger may request
approval from the permit issuing authority for a schedule of compliance.
(4) A compliance schedule shall require compliance with WQBELs based on water
quality criteria set forth in paragraph (b) of this section as soon as possible,
taking into account the dischargers' technical ability to achieve compliance
with such WQBEL.
(5) If the schedule of compliance exceeds one year from the date of permit
issuance, reissuance or modification, the schedule shall set forth interim
requirements and dates for their achievement. The dates of completion between
each requirement may not exceed one year. If the time necessary for completion
of any requirement is more than one year and is not readily divisible into
stages for completion, the permit shall require, at a minimum, specified dates
for annual submission of progress reports on the status of interim requirements.
(6) In no event shall the permit issuing authority approve a schedule of
compliance for a point source discharge which exceeds five years from the date
of permit issuance, reissuance, or modification, whichever is sooner. Where
shorter schedules of compliance are prescribed or schedules of compliance are
prohibited by law, those provisions shall govern.
(7) If a schedule of compliance exceeds the term of a permit, interim permit
limits effective during the permit shall be included in the permit and addressed
in the permit's fact sheet or statement of basis. The administrative record for
the permit shall reflect final permit limits and final compliance dates. Final
compliance dates for final permit limits, which do not occur during the term of
the permit, must occur within five years from the date of issuance, reissuance
or modification of the permit which initiates the compliance schedule. Where
shorter schedules of compliance are prescribed or schedules of compliance are
prohibited by law, those provisions shall govern.
(8) The provisions in this paragraph (e), Schedules of compliance, shall
expire on May 18, 2005.
[65 FR 31711, May 18, 2000, as amended at 66 FR 9961, Feb. 13, 2001;
68 FR 62747, Nov. 6, 2003] Editorial Note: At 66 FR 9961, Feb. 13, 2001, §131.38 was amended in
the table to paragraph (b)(1) under the column heading for "B Freshwater" by
revising the column headings for "Criterion Maximum Concentration" and
"Criterion Continuous Concentration"; under the column heading for "C Saltwater"
by revising the column headings for "Criterion Maximum Concentration" and
"Criterion Continuous Concentration"; and by revising entries "23." and "67.",
effective Feb. 13, 2001. However, this is a photographed table and the
amendments could not be incorporated into the text. For the convenience of the
user, the amended text is set forth as follows:
FOOTNOTES TO TABLE IN PARAGRAPH (B)(1):
GENERAL NOTES TO TABLE IN PARAGRAPH (B)(1)
----------------------------------------------------------------------------------------------------------------
Metal m[INF]A[/INF] b[INF]A[/INF] m[INF]C[/INF] b[INF]C[/INF]
----------------------------------------------------------------------------------------------------------------
Cadmium......................................... 1.128 -3.6867 0.7852 -2.715
Copper.......................................... 0.9422 -1.700 0.8545 -1.702
Chromium (III).................................. 0.8190 3.688 0.8190 1.561
Lead............................................ 1.273 -1.460 1.273 -4.705
Nickel.......................................... 0.8460 2.255 0.8460 0.0584
Silver.......................................... 1.72 -6.52
Zinc............................................ 0.8473 0.884 0.8473 0.884
----------------------------------------------------------------------------------------------------------------
Note to Table 1: The term ``exp'' represents the base e exponential function.
----------------------------------------------------------------------------------------------------------------
Conversion CF for CF [SU]a[/SU]
factor (CF) for freshwater CF for for saltwater
Metal freshwater chronic saltwater chronic
acute criteria criteria acute criteria criteria
----------------------------------------------------------------------------------------------------------------
Antimony....................................... ([SU]d[/SU]) ([SU]d[/SU]) ([SU]d[/SU]) ([SU]d[/SU])
Arsenic........................................ 1.000 1.000 1.000 1.000
Beryllium...................................... ([SU]d[/SU]) ([SU]d[/SU]) ([SU]d[/SU]) ([SU]d[/SU])
Cadmium........................................ [SU]b[/SU] [SU]b[/SU] 0.994 0.994
0.944 0.909
Chromium (III)................................. 0.316 0.860 ([SU]d[/SU]) ([SU]d[/SU])
Chromium (VI).................................. 0.982 0.962 0.993 0.993
Copper......................................... 0.960 0.960 0.83 0.83
Lead........................................... [SU]b[/SU] [SU]b[/SU] 0.951 0.951
0.791 0.791
Mercury........................................ ............... .............. .............. ..............
Nickel......................................... 0.998 0.997 0.990 0.990
Selenium....................................... ............... ([SU]c[/SU]) 0.998 0.998
Silver......................................... 0.85 ([SU]d[/SU]) 0.85 ([SU]d[/SU])
Thallium....................................... ([SU]d[/SU]) ([SU]d[/SU]) ([SU]d[/SU]) ([SU]d[/SU])
Zinc........................................... 0.978 0.986 0.946 0.946
----------------------------------------------------------------------------------------------------------------
Footnotes to Table 2 of Paragraph (b)(2):
[SU]a[/SU] Conversion Factors for chronic marine criteria are not currently available. Conversion Factors for
acute marine criteria have been used for both acute and chronic marine criteria.
[SU]b[/SU] Conversion Factors for these pollutants in freshwater are hardness dependent. CFs are based on a
hardness of 100 mg/l as calcium carbonate (CaCO[INF]3[/INF]). Other hardness can be used; CFs should be
recalculated using the equations in table 3 to paragraph (b)(2) of this section.
[SU]c[/SU] Bioaccumulative compound and inappropriate to adjust to percent dissolved.
[SU]d[/SU] EPA has not published an aquatic life criterion value.
------------------------------------------------------------------------
Acute Chronic
------------------------------------------------------------------------
Cadmium..................... CF=1.136672_[(ln CF = 1.101672_[(ln
{hardness} {hardness}
;) (0.041838)]. ;)(0.041838)]
Lead........................ CF=1.46203_[(ln CF = 1.46203_[(ln
{hardness} {hardness}
;)(0.145712)]. ;)(0.145712)]
------------------------------------------------------------------------
------------------------------------------------------------------------
Criteria Design flow
------------------------------------------------------------------------
Aquatic Life Acute Criteria (CMC)......... 1 Q 10 or 1 B 3
Aquatic Life Chronic Criteria (CCC)....... 7 Q 10 or 4 B 3
Human Health Criteria..................... Harmonic Mean Flow
------------------------------------------------------------------------
------------------------------------------------------------------------
Water and use classification Applicable criteria
------------------------------------------------------------------------
(i) All inland waters of the United (A) Columns B1 and B2_all
States or enclosed bays and estuaries pollutants
that are waters of the United States (B) Columns C1 and C2_all
that include a MUN use designation. pollutants
(C) Column D1_all pollutants
(ii) All inland waters of the United (A) Columns B1 and B2_all
States or enclosed bays and estuaries pollutants
that are waters of the United States (B) Columns C1 and C2_all
that do not include a MUN use pollutants
designation. (C) Column D2_all pollutants
------------------------------------------------------------------------
