[Federal Register Volume 84, Number 151 (Tuesday, August 6, 2019)]
[Proposed Rules]
[Pages 38150-38158]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16700]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2015-0174; FRL-9997-42-OW]
RIN 2040-AF94
Withdrawal of Certain Federal Water Quality Criteria Applicable
to Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) proposes to amend
the
[[Page 38151]]
federal regulations to withdraw certain human health criteria
applicable to waters in Washington because Washington adopted, and the
EPA approved, human health criteria that the EPA determined are
protective of Washington's designated uses for its waters. The EPA is
providing an opportunity for public comment on this proposed withdrawal
of certain federally promulgated human health criteria. The withdrawal
will enable Washington to implement its EPA-approved human health
criteria, submitted on August 1, 2016, and approved on May 10, 2019, as
applicable criteria for Clean Water Act (CWA or the Act) purposes.
DATES: Comments must be received on or before October 7, 2019.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0174, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e. on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.
The EPA is offering two public hearings so that interested parties
may also provide oral comments on this proposed rulemaking. For more
details on the public hearings and to register to attend the hearings,
please visit https://www.epa.gov/wqs-tech/water-quality-standards-regulations-washington.
FOR FURTHER INFORMATION CONTACT: Erica Fleisig, Office of Water,
Standards and Health Protection Division (4305T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 566-1057; email address: [email protected].
SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows:
I. General Information
Does this action apply to me?
II. Background
A. What are the applicable federal statutory and regulatory
requirements?
B. What are the applicable federal water quality criteria that
the EPA is proposing to withdraw?
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act of 1995
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. General Information
Does this action apply to me?
This proposed action is proposing to withdraw certain federal human
health criteria that are no longer needed due to the EPA's approval of
corresponding state human health criteria on May 10, 2019. Entities
discharging in Washington waters, citizens, as well as the state of
Washington may be interested in this rulemaking, as after the
completion of this rulemaking Washington's EPA-approved human health
criteria, rather than the federal human health criteria, will be the
applicable water quality standards in Washington waters for CWA
purposes. If you have questions regarding the applicability of this
action to a particular entity, consult the person identified in the
preceding FOR FURTHER INFORMATION CONTACT section.
II. Background
A. What are the applicable federal statutory and regulatory
requirements?
Consistent with the CWA, the EPA's water quality standards (WQS)
program assigns to states and authorized tribes the primary authority
for adopting WQS.\1\ After states adopt WQS, they must be submitted to
the EPA for review and action in accordance with the CWA. The Act
authorizes the EPA to promulgate federal WQS following the EPA's
disapproval of state WQS or an Administrator's determination that new
or revised WQS are ``necessary to meet the requirements of the Act.''
\2\
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\1\ 33 U.S.C. 1313(a), (c).
\2\ 33 U.S.C. 1313(c)(4).
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On September 14, 2015, the EPA proposed a federal rule to establish
updated human health criteria in Washington based on an Administrator's
determination that new or revised WQS were necessary to meet the
requirements of the Act. Specifically, in its 2015 proposed rulemaking,
the EPA considered data representing regional and local fish
consumption that reflected consumption levels much higher than the
National Toxics Rule (NTR) fish consumption rate of 6.5 grams/day, and
accordingly ``determined that the federal human health criteria in the
NTR as applied to Washington no longer protect the relevant designated
uses of Washington's waters.'' \3\ To address the Administrator's
determination pursuant to its section 303(c) authority, the EPA's
proposed rulemaking established human health criteria using a fish
consumption rate of 175 grams/day.\4\ As explained in the EPA's May 10,
2019, letter, the EPA also used all of the inputs from the EPA's
recently updated 2015 CWA section 304(a) recommendations to calculate
the proposed federal criteria.\5\
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\3\ Revision of Certain Water Quality Standards Applicable to
Washington, 80 FR 55063, 55066 (September 14, 2015).
\4\ Id. at 55066-55067.
\5\ May 10, 2019. Letter and enclosed Technical Support Document
from Chris Hladick, Regional Administrator, EPA Region 10 to Maia
Bellon, Director, Department of Ecology, Re: The EPA's Reversal of
the November 15, 2016 Clean Water Act Section 303(c) Partial
Disapproval of Washington's Human Health Water Quality Criteria and
Decision to Approve Washington's Criteria, at 7.
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Following the EPA's 2015 proposed rulemaking, on August 1, 2016,
Washington submitted human health criteria for the EPA's review.\6\
Washington's criteria were based on a fish consumption rate of 175
grams/day and incorporated most of the components of the EPA's updated
2015 CWA section 304(a) recommendations.\7\ By using a fish consumption
rate of 175 grams/day which is consistent with the EPA's proposed
rulemaking,
[[Page 38152]]
Washington's human health criteria addressed the basis for the EPA's
2015 Administrator's determination--that it is necessary to adopt new
or revised human health criteria based on a higher fish consumption
rate.
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\6\ Department of Ecology. Washington State Water Quality
Standards: Human health criteria and implementation tools, Overview
of key decisions in rule amendment. August 2016. Ecology Publication
no. 16-10-025.
\7\ Id.
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For the reasons explained in the EPA's 2016 disapproval letter and
final federal rule, the EPA partially disapproved certain human health
criteria that Washington submitted to the EPA.\8\ The EPA's final
federal rule was issued concurrent with its partial disapproval
letter.\9\ In explaining the rationale underlying the partial
disapproval of Washington's August 1, 2016, submittal, the EPA
``agree[d] with Washington's decision to derive the human health
criteria using a FCR of 175 g/day,'' noting that that value was
consistent with the EPA's final federal rule,\10\ however the EPA
disagreed with the risk management decisions the State made during the
development of its human health criteria and its decision not to
incorporate all components of the updated 2015 CWA section 304(a)
recommendations.\11\
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\8\ November 15, 2016. Letter (EPA Partial Disapproval Letter)
and enclosed Technical Support Document (Partial Disapproval TSD)
from Daniel D. Opalski, Director, Office of Water and Watersheds,
EPA Region 10 to Maia Bellon, Director, Department of Ecology, Re:
EPA's Partial Approval/Disapproval of Washington's Human Health
Water Quality Criteria and Implementation Tools; 81 FR at 85417
(``Concurrent with this final rule, EPA is taking action under CWA
303(c) to approve in part, and disapprove in part, the human health
criteria submitted by Washington.'').
\9\ Revision of Certain Water Quality Standards Applicable to
Washington, 81 FR 85417 (November 28, 2016). Contrary to at least
one comment letter EPA received prior to its May 10, 2019 Decision
to Approve Washington's criteria, the EPA did not provide the State
with 90 days to remedy the partial disapproval, as envisioned in
section 303(c)(3) of the Act. See May 7, 2019 Letter from the Lower
Elwha Klallam Tribe to Administrator Andrew Wheeler, EPA, Re:
Washington State Water Quality Standards at 4.
\10\ Partial Disapproval TSD at 16.
\11\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The EPA's
Reversal of the November 15, 2016 Clean Water Act Section 303(c)
Partial Disapproval of Washington's Human Health Water Quality
Criteria and Decision to Approve Washington's Criteria, at 7-9.
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Although the EPA promulgated human health criteria for Washington
in the NTR, and subsequently in November 2016, the EPA prefers that
states maintain primary responsibility and establish their own WQS. In
response to a February 21, 2017, petition from several entities asking
the EPA to reconsider the partial disapproval of Washington's August
2016 human health criteria,\12\ the EPA issued a letter on August 3,
2018 stating its intent to reconsider its partial disapproval of
Washington's human health criteria and its subsequent promulgation of
federal criteria.\13\ After a thorough review of the State's 2016
submittal and applicable provisions of the CWA, implementing
regulations and longstanding EPA guidance, on May 10, 2019, the EPA
reconsidered its partial disapproval of Washington's human health
criteria and approved all but two of the criteria that the EPA
previously disapproved.\14\
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\12\ February 21, 2017. Petition for Reconsideration of EPA's
Partial Disapproval of Washington's August 1, 2016 submission on
Human Health Water Quality Criteria and Implementation Tools, and
Repeal of the Final Rule Revision of Certain Federal Water Quality
Standards Applicable to Washington, 81 Fed. Reg 85,417 (Nov. 28,
2016) submitted by Northwest Pulp & Paper Association, American
Forest and Paper Association, Association of Washington Business,
Greater Spokane Incorporated, Treated Wood Council, Western Wood
Preservers Institute, Utility Water Act Group and Washington Farm
Bureau.
\13\ August 3, 2018. Letter from David P. Ross, Assistant
Administrator, Office of Water, EPA to Penny Shamblin, Counsel for
Utility Water Act Group, Re: Petition for Reconsideration of the
Environmental Protection Agency's (EPA) Partial Disapproval of
Washington's Human Health Water Quality Criteria and Implementation
Tools submitted by the State of Washington on August 1, 2016, and
Repeal of the Final Rule Revision of Certain Federal Water Quality
Standards Applicable to Washington.
\14\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The EPA's
Reversal of the November 15, 2016 Clean Water Act Section 303(c)
Partial Disapproval of Washington's Human Health Water Quality
Criteria and Decision to Approve Washington's Criteria.
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As provided in 40 CFR 131.21(c), federally promulgated WQS that are
more stringent than EPA-approved state WQS remain applicable for
purposes of the CWA until the EPA withdraws the federal standards.
Accordingly, the EPA is proposing to amend the federal regulations to
withdraw those federally promulgated human health criteria for which
the EPA has approved Washington's criteria and is providing an
opportunity for public comment on this proposed action.
The EPA's proposal to withdraw federal criteria following approval
of state criteria is consistent with the federal and state roles
contemplated by the CWA. Consistent with the cooperative federalism
structure of the CWA, once the EPA approves state WQS addressing the
same pollutants for which the EPA has promulgated federal WQS, it is
incumbent on the EPA to withdraw the federal WQS to enable the EPA-
approved state WQS to become the applicable WQS for CWA purposes. That
is what the EPA is proposing to do in this proposed rulemaking. This
proposal is consistent with the EPA's withdrawal of other federally
promulgated WQS following the EPA's approval of state-adopted WQS.\15\
Further, although the state of Washington opposes the EPA withdrawing
the 2016 federal human health criteria, the State remains free to
promulgate the federal standards into state law if it so chooses.\16\
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\15\ See e.g., Withdrawal of Certain Federal Water Quality
Criteria Applicable to California: Lead, Chlorodibromomethane, and
Dichlorobromomethane, 83 FR 52163 (Oct. 16, 2018); Water Quality
Standards for the State of Florida's Lakes and Flowing Waters;
Withdrawal, 79 FR 57447 (Sept. 25, 2014); Withdrawal of Certain
Federal Water Quality Criteria Applicable to California, New Jersey
and Puerto Rico, 78 FR 20252 (Apr. 4, 2013).
\16\ See May 7, 2019. Letter from Maia D. Bellon, Director,
Washington Department of Ecology, to Hon. Andrew R. Wheeler,
Administrator, EPA, Re: EPA's Intention to Reconsider Washington
State's Water Quality Standards for Human Health Criteria.
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Shortly before taking its action to approve Washington's human
health criteria, the EPA received several letters expressing concerns
about the EPA revising or repealing the federal criteria and the EPA's
authority under the CWA to ``propose new standards'' for a state.\17\
As described herein, the EPA reconsidered the human health criteria
that Washington submitted to the EPA in 2016 and approved the majority
of those criteria. In light of that approval, the EPA proposes to amend
federal regulations to withdraw the federal criteria the EPA previously
promulgated for Washington. Thus, in this proposed rulemaking, the EPA
is not proposing to promulgate any new or revised federal criteria for
Washington. The EPA's authority to promulgate new or revised federal
criteria is not at issue in this proposal to withdraw the federal
criteria.
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\17\ May 8, 2019. Letter from Bob Ferguson, Attorney General,
Washington, to Hon. Andrew R. Wheeler, Administrator, EPA; see also
May 7, 2019. Letter from Maia D. Bellon, Director, Washington
Department of Ecology, to Hon. Andrew R. Wheeler, Administrator,
EPA, Re: EPA's Intention to Reconsider Washington State's Water
Quality Standards for Human Health Criteria; May 7, 2019. Letter
from Frances G. Charles, Chairwoman, to Hon. Andrew R. Wheeler,
Administrator, EPA, Re: Washington State Water Quality Standards
(Human Health Criteria; May 3, 2019. Letter from Justin Parker,
Executive Director, Northwest Indian Fisheries Commission, to Hon.
Andrew R. Wheeler, Administrator, and Mr. David Ross, Assistant
Administrator, Office of Water, EPA, Re: EPA Action Regarding
Washington's Human Health Water Quality Criteria.
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B. What are the applicable federal water quality criteria that the EPA
is proposing to withdraw?
This action proposes to amend federal regulations to withdraw all
federal human health criteria promulgated for Washington in November
2016 at 40 CFR 131.45,\18\ with the exception of
[[Page 38153]]
criteria for arsenic, methylmercury, and bis(2-chloro-1-methylethyl)
ether. For arsenic, on May 10, 2019, the EPA reaffirmed its November
2016 disapproval of the two criteria Washington submitted for arsenic
(water + organism and organism only), and therefore the federal arsenic
criteria for Washington at 40 CFR 131.45 will remain in place.\19\ For
methylmercury and bis(2-chloro-1-methylethyl) ether, Washington did not
submit criteria for those pollutants and therefore the federally
promulgated criteria are the only criteria in effect for those
pollutants in the State. Although the EPA is proposing to maintain the
federally promulgated criteria for these pollutants, the EPA is also
soliciting comment on whether to withdraw the federally promulgated
criteria for methylmercury and bis(2-chloro-1-methylethyl) ether.
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\18\ Revision of Certain Water Quality Standards Applicable to
Washington, 81 FR 85417 (November 28, 2016).
\19\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The EPA's
Reversal of the November 15, 2016 Clean Water Act Section 303(c)
Partial Disapproval of Washington's Human Health Water Quality
Criteria and Decision to Approve Washington's Criteria.
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1. Washington Human Health Criteria That the EPA Approved on May 10,
2019
On May 10, 2019, the EPA revised its disapproval of 141 of
Washington's human health criteria and approved those criteria. In
addition, the EPA approved four criteria for two pollutants (thallium
and 2,3,7,8-TCDD [dioxin]) that the EPA previously deferred action on
in November 2016.\20\
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\20\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The EPA's
Reversal of the November 15, 2016 Clean Water Act Section 303(c)
Partial Disapproval of Washington's Human Health Water Quality
Criteria and Decision to Approve Washington's Criteria.
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Because Washington now has 145 additional human health criteria
approved by the EPA for CWA purposes, the EPA has determined that the
141 corresponding federally promulgated human health criteria are no
longer needed in Washington. As noted in the EPA's May 10, 2019,
action, the EPA determined upon reconsideration that Washington's 2016
human health criteria are scientifically sound and protective of the
applicable designated uses in the state.\21\ More information on the
EPA's action to approve Washington's human health criteria upon
reconsideration, including the EPA's approval letter and associated
Technical Support Document, can be accessed at https://www.epa.gov/wqs-tech/water-quality-standards-regulations-washington and in the docket
for this proposed rulemaking.
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\21\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The EPA's
Reversal of the November 15, 2016 Clean Water Act Section 303(c)
Partial Disapproval of Washington's Human Health Water Quality
Criteria and Decision to Approve Washington's Criteria.
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As explained above, the EPA seeks public comment before withdrawing
the federally promulgated criteria. Although the EPA has determined
that these state criteria are scientifically sound and protective of
the applicable designated uses for waters in the state and otherwise
meet the requirements of the CWA and EPA's implementing regulations at
40 CFR 131, the EPA recognizes that many of Washington's human health
criteria are less stringent than the EPA's federally promulgated
criteria which are based on the EPA's CWA section 304(a) criteria (see
Table 1). However, as explained in the EPA's May 10, 2019, approval and
Technical Support Document, the EPA's CWA section 304(a) criteria are
national recommendations and states retain discretion to adopt
different criteria, that may be less stringent, if the state's criteria
are based on sound science and protect the designated use. In issuing
the May 10, 2019, approval, the EPA determined that Washington's human
health criteria meet the requirements of the CWA and the EPA's
regulations because the State's inputs are based on sound science and
the resulting criteria protect the designated uses.
Table 1--Comparison of Federally Promulgated Criteria and EPA-Approved Washington Criteria
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Washington's criteria that EPA EPA Federally promulgated
approved on May 10, 2019 criteria at 40 CFR 131.45 that
------------------------------------ EPA is proposing to withdraw
Chemical CAS No. ---------------------------------
Water & Organisms only Water &
organisms ([micro]g/L) organisms Organisms only
([micro]g/L) ([micro]g/L) ([micro]g/L)
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1. 1,1,1-Trichloroethane..... 71556 47000........... 160000.......... 20000.......... 50000.
2. 1,1,2,2-Tetrachloroethane. 79345 0.12............ 0.46............ 0.1............ 0.3.
3. 1,1,2-Trichloroethane..... 79005 0.44............ 1.8............. 0.35........... 0.90.
4. 1,1-Dichloroethylene...... 75354 1200............ 4100............ 700............ 4000.
5. 1,2,4-Trichlorobenzene.... 120821 0.12............ 0.14............ 0.036.......... 0.037.
6. 1,2-Dichlorobenzene....... 95501 2000............ 2500............ 700............ 800.
7. 1,2-Dichloroethane........ 107062 9.3............. 120............. 8.9............ 73.
8. 1,2-Dichloropropane....... 78875 (*)............. (*)............. (*)............ (*).
9. 1,2-Diphenylhydrazine..... 122667 0.015........... 0.023........... 0.01........... 0.02.
10. 1,2-Trans- 156605 600............. 5800............ 200............ 1000.
Dichloroethylene.
11. 1,3-Dichlorobenzene...... 541731 13.............. 16.............. 2.............. 2.
12. 1,3-Dichloropropene...... 542756 0.24............ 2.0............. 0.22........... 1.2.
13. 1,4-Dichlorobenzene...... 106467 460............. 580............. 200............ 200.
14. 2,3,7,8-TCDD (Dioxin).... 1746016 0.000000064..... 0.000000064..... 0.000000013.... 0.000000014.
15. 2,4,6-Trichlorophenol.... 88062 (*)............. (*)............. (*)............ (*).
16. 2,4-Dichlorophenol....... 120832 25.............. 34.............. 10............. 10.
17. 2,4-Dimethylphenol....... 105679 (*)............. (*)............. (*)............ (*).
18. 2,4-Dinitrophenol........ 51285 60.............. 610............. 30............. 100.
19. 2,4-Dinitrotoluene....... 121142 (*)............. (*)............. (*)............ (*).
20. 2-Chloronaphthalene...... 91587 170............. 180............. 100............ 100.
21. 2-Chlorophenol........... 95578 (*)............. (*)............. (*)............ (*).
22. 2-Methyl-4,6- 534521 7.1............. 25.............. 3.............. 7.
Dinitrophenol.
23. 3,3'-Dichlorobenzidine... 91941 (*)............. (*)............. (*)............ (*).
24. 3-Methyl-4-Chlorophenol.. 59507 (*)............. (*)............. (*)............ (*).
25. 4,4'-DDD................. 72548 0.000036........ 0.000036........ 0.0000079...... 0.0000079.
[[Page 38154]]
26. 4,4'-DDE................. 72559 0.000051........ 0.000051........ 0.00000088..... 0.00000088.
27. 4,4'-DDT................. 50293 0.000025........ 0.000025........ 0.0000012...... 0.0000012.
28. Acenaphthene............. 83329 110............. 110............. 30............. 30.
29. Acrolein................. 107028 (*)............. (*)............. (*)............ (*).
30. Acrylonitrile............ 107131 (*)............. (*)............. (*)............ (*).
31. Aldrin................... 309002 0.0000057....... 0.0000058....... 0.000000041.... 0.000000041.
32. alpha-BHC................ 319846 0.0005.......... 0.00056......... 0.000048....... 0.000048.
33. alpha-Endosulfan......... 959988 9.7............. 10.............. 6.............. 7.
34. Anthracene............... 120127 3100............ 4600............ 100............ 100.
35. Antimony................. 7440360 12.............. 180............. 6.............. 90.
36. Arsenic.................. 7440382 Disapproved..... Disapproved..... N/A............ N/A.
37. Asbestos................. 1332214 (*)............. (*)............. (*)............ (*).
38. Benzene.................. 71432 (*)............. (*)............. (*)............ (*).
39. Benzidine................ 92875 (*)............. (*)............. (*)............ (*).
40. Benzo(a) Anthracene...... 56553 0.014........... 0.021........... 0.00016........ 0.00016.
41. Benzo(a) Pyrene.......... 50328 0.0014.......... 0.0021.......... 0.000016....... 0.000016.
42. Benzo(b) Fluoranthene.... 205992 0.014........... 0.021........... 0.00016........ 0.00016.
43. Benzo(k) Fluoranthene.... 207089 0.014........... 0.21............ 0.0016......... 0.0016.
44. beta-BHC................. 319857 0.0018.......... 0.002........... 0.0013......... 0.0014.
45. beta-Endosulfan.......... 33213659 (*)............. (*)............. (*)............ (*).
46. Bis(2-Chloroethyl) Ether. 111444 (*)............. (*)............. (*)............ (*).
47. Bis(2-Chloro-1- 108601 Not submitted... Not submitted... See explanation See explanation
Methylethyl) Ether \a\. below. below.
48. Bis(2-Ethylhexyl) 117817 0.23............ 0.25............ 0.045.......... 0.046.
Phthalate.
49. Bromoform................ 75252 5.8............. 27.............. 4.6............ 12.
50. Butylbenzyl Phthalate.... 85687 0.56............ 0.58............ 0.013.......... 0.013.
51. Carbon Tetrachloride..... 56235 (*)............. (*)............. (*)............ (*).
52. Chlordane................ 57749 0.000093........ 0.000093........ 0.000022....... 0.000022.
53. Chlorobenzene............ 108907 380............. 890............. 100............ 200.
54. Chlorodibromomethane..... 124481 0.65............ 3............... 0.60........... 2.2.
55. Chloroform............... 67663 260............. 1200............ 100............ 600.
56. Chrysene................. 218019 1.4............. 2.1............. 0.016.......... 0.016.
57. Copper................... 7440508 (*)............. (*)............. (*)............ (*).
58. Cyanide.................. 57125 19.............. 270............. 9.............. 100.
59. Dibenzo(a,h) Anthracene.. 53703 0.0014.......... 0.0021.......... 0.000016....... 0.000016.
60. Dichlorobromomethane..... 75274 0.77............ 3.6............. 0.73........... 2.8.
61. Dieldrin................. 60571 0.0000061....... 0.0000061....... 0.000000070.... 0.000000070.
62. Diethyl Phthalate........ 84662 4200............ 5000............ 200............ 200.
63. Dimethyl Phthalate....... 131113 92000........... 130000.......... 600............ 600.
64. Di-n-Butyl Phthalate..... 84742 450............. 510............. 8.............. 8.
65. Endosulfan Sulfate....... 1031078 9.7............. (*)............. 9.............. (*).
66. Endrin................... 72208 0.034........... 0.035........... 0.002.......... 0.002.
67. Endrin Aldehyde.......... 7421934 (*)............. (*)............. (*)............ (*).
68. Ethylbenzene............. 100414 200............. 270............. 29............. 31.
69. Fluoranthene............. 206440 16.............. 16.............. 6.............. 6.
70. Fluorene................. 86737 420............. 610............. 10............. 10.
71. Gamma-BHC; Lindane....... 58899 15.............. 17.............. 0.43........... 0.43.
72. Heptachlor............... 76448 0.0000099....... 0.00001......... 0.00000034..... 0.00000034.
73. Heptachlor Epoxide....... 1024573 0.0000074....... 0.0000074....... 0.0000024...... 0.0000024.
74. Hexachlorobenzene........ 118741 0.000051........ 0.000052........ 0.0000050...... 0.0000050.
75. Hexachlorobutadiene...... 87683 0.69............ 4.1............. 0.01........... 0.01.
76. Hexachlorocyclopentadiene 77474 150............. 630............. 1.............. 1.
77. Hexachloroethane......... 67721 0.11............ 0.13............ 0.02........... 0.02.
78. Indeno(1,2,3-cd) Pyrene.. 193395 0.014........... 0.021........... 0.00016........ 0.00016.
79. Isophorone............... 78591 (*)............. (*)............. (*)............ (*).
80. Methyl Bromide........... 74839 520............. (*)............. 300............ (*).
81. Methylene Chloride....... 75092 16.............. 250............. 10............. 100.
82. Methylmercury............ 22967926 (Not submitted). (Not submitted). See explanation See explanation
below. below.
83. Nickel................... 7440020 150............. 190............. 80............. 100.
84. Nitrobenzene............. 98953 55.............. 320............. 30............. 100.
85. N-Nitrosodimethylamine... 62759 (*)............. (*)............. (*)............ (*).
86. N-Nitrosodi-n-Propylamine 621647 (*)............. (*)............. (*)............ (*).
87. N-Nitrosodiphenylamine... 86306 (*)............. (*)............. (*)............ (*).
88. Pentachlorophenol (PCP).. 87865 0.046........... 0.1............. 0.002.......... 0.002.
89. Phenol................... 108952 18000........... 200000.......... 9000........... 70000.
[[Page 38155]]
90. Polychlorinated Biphenyls PCB 0.00017......... 0.00017......... 0.000007....... 0.000007.
(PCBs).
91. Pyrene................... 129000 310............. 460............. 8.............. 8.
92. Selenium................. 7782492 120............. 480............. 60............. 200.
93. Tetrachloroethylene...... 127184 4.9............. 7.1............. 2.4............ 2.9.
94. Thallium................. 7440280 0.24............ 0.27............ 1.7............ 6.3.
95. Toluene.................. 108883 180............. 410............. 72............. 130.
96. Toxaphene................ 8001352 (*)............. (*)............. (*)............ (*).
97. Trichloroethylene........ 79016 0.38............ 0.86............ 0.3............ 0.7.
98. Vinyl Chloride........... 75014 (*)............. 0.26............ (*)............ 0.18.
99. Zinc..................... 7440666 2300............ 2900............ 1000........... 1000.
----------------------------------------------------------------------------------------------------------------
\a\ Bis(2-Chloro-1-Methylethyl) Ether was previously listed as Bis(2-Chloroisopropyl) Ether.
* EPA approved Washington's criteria for these pollutants in November 2016 and therefore did not promulgate
corresponding federal criteria.
2. Methylmercury and bis(2-chloro-1-methylethyl) ether
Washington did not submit human health criteria for methylmercury
or bis(2-chloro-1-methylethyl) ether in August 2016. For methylmercury,
Washington explained in its August 2016 submittal documents that it
``decided to defer state adoption of [human health criteria] for
methylmercury at this time, and plans to schedule adoption of
methylmercury criteria and develop a comprehensive implementation plan
after the current rulemaking is completed and has received EPA Clean
Water Act approval.'' \22\ To date, the EPA is not aware of any efforts
Washington has undertaken since 2016 to adopt methylmercury criteria or
develop associated implementation materials, likely because the EPA
promulgated a federal criterion. For bis(2-chloro-1-methylethyl) ether
(which was previously named `bis(2-chloroisopropyl) ether' in the NTR),
Washington explained its position that ``bis(2-chloroisopropyl) ether
does not have a [CWA section] 304(a) national recommended criteria
associated with it, thus the proposed criteria for this chemical were
deleted from the [state's] final rule. Ecology has determined that the
older NTR criteria for bis(2-chloroisopropyl) ether were incorrect, and
were not developed for that particular priority pollutant. Ecology is
adopting criteria only for the priority pollutants for which EPA has
published 304(a) criteria documents.'' \23\
---------------------------------------------------------------------------
\22\ Department of Ecology. Washington State Water Quality
Standards: Human health criteria and implementation tools, Overview
of key decisions in rule amendment. August 2016. Ecology Publication
no. 16-10-025. Page 80.
\23\ Id.
---------------------------------------------------------------------------
CWA section 303(c)(2)(B) requires states to adopt numeric criteria
for all toxic pollutants listed pursuant to CWA section 307(a)(1) for
which the EPA has published 304(a) criteria, as necessary to protect
the states' designated uses. In 1992, the EPA promulgated the NTR at 40
CFR 131.36, establishing chemical-specific numeric criteria for 85
priority toxic pollutants for 14 states and territories (states),
including Washington, that were not in compliance with the requirements
of CWA section 303(c)(2)(B). In the proposed NTR, the EPA provided
states three options for demonstrating compliance with section
303(c)(2)(B).\24\
---------------------------------------------------------------------------
\24\ EPA. 1991. Amendments to the Water Quality Standards
Regulation to Establish the Numeric Criteria for Priority Toxic
Pollutants Necessary to Bring All States Into Compliance With
Section 303(c)(2)(B). 56 FR 58420, November 19, 1991. https://www.epa.gov/sites/production/files/2015-06/documents/ntr-proposal-1991.pdf.
---------------------------------------------------------------------------
Option 1: Adopt statewide numeric criteria in state WQS
for all section 307(a) toxic pollutants for which the EPA has developed
criteria guidance, regardless of whether the pollutants are known to be
present.
Option 2: Adopt chemical-specific numeric criteria for
priority toxic pollutants that are the subject of the EPA's section
304(a) criteria guidance, where the state determines based on available
information that the pollutants are present or discharged and can
reasonably be expected to interfere with designated uses.
Option 3: Adopt a procedure to be applied to a narrative
WQS provision prohibiting toxicity in receiving waters. Such procedures
would be used by the state in calculating derived numeric criteria
which must be used for all purposes under section 303(c) of the CWA. At
a minimum, such criteria need to be developed for section 307(a) toxic
pollutants, as necessary to support designated uses, where these
pollutants are discharged or present in the affected waters and could
reasonably be expected to interfere with designated uses.
For the NTR in Washington, the EPA applied Option 1, explaining
that Washington ``has not adopted numeric criteria for any human health
based criteria for priority pollutants, and EPA has reason to believe
that at least some additional criteria are necessary to comply with
section 303(c)(2)(B).'' \25\ The EPA further explained that it did not
attempt ``to determine the specific priority pollutants and water
bodies that require criteria. However, EPA has determined that at least
some Federal criteria are necessary to protect designated uses. This
determination is supported by information in the record which
demonstrates that priority toxic pollutants are discharged or present
in surface waters at levels that can reasonably be expected to
interfere with State designated uses. For some priority toxic
pollutants, available data clearly demonstrate use impairment and the
need for toxics criteria. For most priority toxic pollutants, however,
available data on the discharge and presence of priority toxic
pollutants are spatially and temporally limited. Nevertheless, EPA
believes that the data for many of these pollutants are sufficient to
satisfy the `reasonable
[[Page 38156]]
expectation' test established in section 303(c)(2](B).'' \26\
---------------------------------------------------------------------------
\25\ Id.
\26\ Id.
---------------------------------------------------------------------------
In 2016, Washington explained in its submittal that it was
following Option 1 outlined in the NTR by adopting human health
criteria for all CWA section 307(a) priority toxic pollutants (except
mercury/methylmercury) for which the EPA has developed national
recommended CWA section 304(a) criteria, regardless of whether the
pollutants are known to be present in the state.\27\ The EPA followed
this same approach in 2016 when promulgating federal human health
criteria for Washington.\28\ However, while Washington concluded in
2016 that it wanted to retain the 1992 federally promulgated NTR
criteria for mercury and adopt methylmercury criteria in the future,
the EPA determined that revised criteria for all priority pollutants
were necessary in Washington and therefore promulgated a fish tissue
methylmercury criterion (replacing the NTR water column mercury
criteria) for Washington in 2016. Also, as explained in a memo to the
file in the docket for the 2016 rulemaking,\29\ the EPA disagreed with
Washington's conclusion that bis(2-chloro-1-methylethyl) ether was not
a CWA section 307(a) priority pollutant with associated CWA section
304(a) criteria, and therefore the EPA promulgated criteria for bis(2-
chloro-1-methylethyl) ether at 40 CFR 131.45. Because the EPA followed
the same Option 1 approach in 2016 as it used in the NTR and as
Washington used for its submittal in 2016, the EPA did not specifically
conduct a search for available information indicating that any of the
priority pollutants, including methylmercury and bis(2-chloro-1-
methylethyl) ether, are present or discharged in Washington and can
reasonably be expected to interfere with Washington's designated uses.
---------------------------------------------------------------------------
\27\ Department of Ecology. Washington State Water Quality
Standards: Human health criteria and implementation tools, Overview
of key decisions in rule amendment. August 2016. Ecology Publication
no. 16-10-025. Page 20.
\28\ Revision of Certain Water Quality Standards Applicable to
Washington, 81 FR 85417 (November 28, 2016).
\29\ EPA. 2016. Bis chem CAS 108-60-1 Memo to File clean.
https://www.regulations.gov/document?D=EPA-HQ-OW-2015-0174-0301.
---------------------------------------------------------------------------
However, as Washington noted in its 2016 submittal, mercury
contamination is widespread across all 50 states, and Washington has
listed waters as impaired and issued fish advisories due to
mercury.\30\ Additionally, Washington's 2016 cost-benefit analysis for
its human health criteria rulemaking identified mercury as one of the
five most detected chemicals in three discharger categories (wastewater
treatment plants, pulp and paper mills, and resource extraction).\31\
For its final rulemaking in 2016, the EPA identified reasonable
potential for certain industrial dischargers in the state to cause or
contribute to exceedances of the federally promulgated methylmercury
criterion.\32\ Therefore, the available evidence indicates that mercury
is present and discharged in Washington and can reasonably be expected
to interfere with Washington's designated uses.
---------------------------------------------------------------------------
\30\ Department of Ecology. Washington State Water Quality
Standards: Human health criteria and implementation tools, Overview
of key decisions in rule amendment. August 2016. Ecology Publication
no. 16-10-025. Page 80.
\31\ Department of Ecology. Final Cost-Benefit and Least-
Burdensome Alternative Analyses. July 2016. Ecology Publication no.
16-10-019. Page 27.
\32\ Abt Associates. Economic Analysis for Water Quality
Standards Applicable to the State of Washington. October 21, 2016.
https://www.regulations.gov/document?D=EPA-HQ-OW-2015-0174-0300.
---------------------------------------------------------------------------
The available data on bis(2-chloro-1-methylethyl) ether are more
limited. The EPA did not identify reasonable potential for any
dischargers in Washington to cause or contribute to exceedances of the
federally promulgated criteria for bis(2-chloro-1-methylethyl) ether.
Washington did not evaluate bis(2-chloro-1-methylethyl) ether in its
cost-benefit analysis because it did not include this pollutant in the
state rulemaking. Therefore, the EPA is not aware of evidence on
whether bis(2-chloro-1-methylethyl) ether is present or discharged in
Washington and can reasonably be expected to interfere with
Washington's designated uses.
Given the information outlined above, the EPA proposes to retain
(i.e., not withdraw) the methylmercury and bis(2-chloro-1-methylethyl)
ether human health criteria promulgated for Washington at 40 CFR 131.45
(81 FR 85417, November 28, 2016). This is consistent with the Option 1
approach and will ensure that Washington has CWA-effective human health
criteria for these two pollutants that may be present in Washington's
waters. The EPA specifically solicits any additional information on
whether mercury/methylmercury and/or bis(2-chloro-1-methylethyl) ether
are present or discharged in Washington and can reasonably be expected
to interfere with Washington's designated uses. Based on the public
comments received, the EPA may consider withdrawing the federally
promulgated criteria for one or both of these pollutants. If the EPA
withdraws the federal criteria for methylmercury and/or bis(2-chloro-1-
methylethyl) ether, there would be no applicable numeric criteria for
CWA purposes. Washington may, at any time adopt and submit to the EPA
human health criteria for either pollutant, consistent with CWA section
303(c) and the EPA's implementing regulations at 40 CFR part 131.
III. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to
review under Executive Orders 12866 and 13563 (76 FR 3821, January 21,
2011). The proposed rule does not establish any requirements directly
applicable to regulated entities or other sources of toxic pollutants.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is expected to be an Executive Order 13771 deregulatory
action.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information-collection burden
under the Paperwork Reduction Act (PRA) because it is administratively
withdrawing federal requirements that are no longer needed in
Washington. It does not include any information collection, reporting,
or recordkeeping requirements. The Office of Management and Budget
(OMB) has previously approved the information collection requirements
contained in the existing regulations 40 CFR part 131 and has assigned
OMB control number 2040-0286.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (RFA). This action will not impose any requirements on
small entities. Small entities, such as small businesses or small
governmental jurisdictions, are not directly regulated by this rule.
E. Unfunded Mandates Reform Act (UMRA)
This action contains no unfunded federal mandates under the
provisions of Title II of the Unfunded Mandates Reform Act of 1995
(UMRA), 2 U.S.C. 1531-1538, and does not significantly or uniquely
affect small governments. As
[[Page 38157]]
this action proposes to withdraw certain federally promulgated
criteria, the action imposes no enforceable duty on any state, local,
or tribal governments, or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. This rule
imposes no regulatory requirements or costs on any state or local
governments. Thus, Executive Order 13132 does not apply to this action.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action may have tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. In the state of Washington,
there are 29 federally recognized Indian tribes.
The EPA initiated consultation with federally recognized tribal
officials under the EPA's Policy on Consultation and Coordination with
Indian tribes early in the process of developing this proposed rule to
allow meaningful and timely input into its development. The EPA
initially offered tribal consultation on this rule making on May 21,
2019. EPA staff then offered two informational calls for tribal staff
on June 4 and 5, 2019, to assist tribes with the consultation process,
including the tribes' decisions on whether to accept the offer to
consult. Many tribes have expressed dissatisfaction that EPA did not
offer consultation prior to its May 10, 2019, decision and have
questioned how meaningful the EPA's offer for consultation is on this
rule making as a result. To the extent tribes have been interested in
consulting on this rulemaking, they have emphasized the importance of
consultation occurring prior to publication of a proposed rule. A
number of tribes expressed the need for more time prior to the proposed
rule publication to conduct consultation, for more information provided
in advance to prepare for and engage in consultation and for the actual
EPA decision-maker to be present.
Input received from tribes during consultation, meetings and
through letters received thus far, indicates tribes are opposed to this
proposed action. Tribes have raised health, economic and implementation
concerns, as well as the EPA's trust responsibility, treaty obligations
and consultation practices. While the EPA acknowledges it may not
satisfy the tribal consultation expectations of each tribe, the EPA
will continue to offer the opportunity to consult up to the point of
finalizing this rule and will evaluate the input received before making
a final decision.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This rule is not subject to Executive Order 13045, because it is
not economically significant as defined in Executive Order 12866, and
because the environmental health or safety risks addressed by this
action do not present a disproportionate risk to children.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
J. National Technology Transfer and Advancement Act of 1995
This proposed rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States. The EPA concludes that this action
does not have disproportionately high and adverse human health or
environmental effects on minority populations, low income populations
and/or indigenous peoples, as specified in Executive Order 12898 (59 FR
7629, February 16, 1994). The EPA has previously determined that
Washington's adopted and EPA-approved criteria are protective of human
health.
List of Subjects in 40 CFR Part 131
Environmental protection, Indians-lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: July 23, 2019.
Andrew R. Wheeler,
Administrator.
For the reasons set forth in the preamble, the EPA proposes to
amend 40 CFR part 131 as follows:
PART 131--WATER QUALITY STANDARDS
0
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--Federally Promulgated Water Quality Standards
0
2. Amend Sec. 131.45 by revising paragraph (b) to read as follows:
Sec. 131.45 Revision of certain Federal water quality criteria
applicable to Washington.
* * * * *
(b) Criteria for priority toxic pollutants in Washington. The
applicable human health criteria are shown in Table 1 to paragraph (b).
[[Page 38158]]
Table 1 to Paragraph (b)--Human Health Criteria for Washington
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
A B C
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Cancer Slope Bio- Bio-
factor, CSF Relative source Reference accumulation concentration Water &
Chemical CAS No. (per mg/ contribution, RSC (-) dose, RfD (mg/ factor (L/kg factor (L/kg organisms Organisms only ([micro]g/L)
kg[middot]d) kg[middot]d) tissue) tissue) ([micro]g/L)
(B1) (B2) (B3) (B4) (B5) (C1) (C2)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1. Arsenic **.......................... 7440382 1.75 .......................... .............. .............. 44 \a\ 0.018 \a\ 0.14.
2. Bis(2-Chloro-1-Methylethyl) Ether *. 108601 .............. 0.50 0.04 10 .............. 400 900.
3. Methylmercury....................... 22967926 .............. 2.7E-05 0.0001 .............. .............. .............. \b\ 0.03 (mg/kg).
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ This criterion refers to the inorganic form of arsenic only.
\b\ This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish). See Water Quality Criterion for the Protection of Human Health: Methylmercury (EPA-
823-R-01-001, January 3, 2001) for how this value is calculated using the criterion equation in the EPA's 2000 Human Health Methodology rearranged to solve for a protective concentration in
fish tissue rather than in water.
* Bis(2-Chloro-1-Methylethyl) Ether was previously listed as Bis(2-Chloroisopropyl) Ether.
** These criteria were promulgated for Washington in the National Toxics Rule at 40 CFR 131.36, and are moved into 40 CFR 131.45 to have one comprehensive human health criteria rule for
Washington.
* * * * *
[FR Doc. 2019-16700 Filed 8-5-19; 8:45 am]
BILLING CODE 6560-50-P