[Federal Register Volume 85, Number 93 (Wednesday, May 13, 2020)]
[Rules and Regulations]
[Pages 28494-28499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08497]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2015-0174; FRL-10008-24-OW]
RIN 2040-AF94


Withdrawal of Certain Federal Water Quality Criteria Applicable 
to Washington

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Environmental Protection Agency (EPA or Agency) is taking 
final action to amend the federal regulations to withdraw certain human 
health water quality criteria applicable to waters in the State of 
Washington. The EPA is taking this action because the State adopted, 
and the EPA approved, human health criteria that the Agency determined 
are protective of Washington's designated uses for its waters. In this 
action, the EPA is amending the federal regulations to withdraw those 
certain human health criteria applicable to Washington but promulgated 
by the Agency, as described in the August 6, 2019 proposed rule. 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: This final rule is effective on June 12, 2020.

ADDRESSES: The EPA has established a docket for this action identified 
by Docket ID No. EPA-HQ-OW-2015-0174, at https://www.regulations.gov. 
For additional information about the EPA's public docket, visit the EPA 
Docket Center homepage at https://www.epa.gov/dockets.

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
    What are the applicable federal statutory and regulatory 
requirements?
III. What are the Federal Water Quality Criteria that the EPA is 
withdrawing?
    A. Comments in Support of the EPA's Proposal To Withdraw the 
Federal HHC
    B. Comments in Opposition to the EPA's Proposal To Withdraw the 
Federal HHC
    C. Comments Concerning Methylmercury and Bis (2-Chloro-1-
Methylethyl) Ether
IV. 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
    K. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    L. Congressional Review Act (CRA)

I. General Information

Does this action apply to me?

    This final action withdraws certain federal human health criteria 
(HHC) in the State of Washington that are no longer needed due to the 
EPA's approval of the corresponding State HHC on May 10, 2019. Entities 
discharging pollutants in Washington waters, citizens, as well as the 
State of Washington may be interested in this rulemaking, because after 
the effective date of this rulemaking Washington's EPA-approved HHC, 
rather than the federal HHC, will be the applicable water quality 
standards in Washington waters for CWA purposes. This action applies 
only to waterbodies in the State of Washington and does not apply to 
waters that are within Indian Country as defined in 18 U.S.C. 1151. 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

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

[[Page 28495]]

WQS.\1\ After a state adopts WQS, the state must submit them to the EPA 
for review and action in accordance with the CWA. If the EPA finds the 
state WQS are based on sound science and protect the state's designated 
uses, the CWA requires the EPA to approve those state WQS. The Act 
authorizes the EPA to promulgate federal WQS following the EPA's 
disapproval of state WQS or following an Administrator's determination 
that new or revised WQS are ``necessary to meet the requirements of the 
Act.'' \2\
---------------------------------------------------------------------------

    \1\ 33 U.S.C. 1313(a), (c).
    \2\ 33 U.S.C. 1313(c)(4).
---------------------------------------------------------------------------

    On September 14, 2015, the EPA proposed a federal rule to establish 
updated HHC 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 rule, 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 CWA Section 303(c) authority, the EPA's proposed rulemaking 
established HHC using a fish consumption rate of 175 grams/day.\4\ The 
EPA also used all of the inputs from the EPA's recently updated 2015 
CWA Section 304(a) national recommended water quality criteria for the 
protection of human health to calculate the proposed federal 
criteria.\5\
---------------------------------------------------------------------------

    \3\ Revision of Certain Water Quality Standards Applicable to 
Washington, 80 FR 55063, 55066 (September 14, 2015).
    \4\ Id. at 55066-55067.
    \5\ Id. at 55063, 55066.
---------------------------------------------------------------------------

    Following the EPA's 2015 proposed rulemaking, on August 1, 2016, 
Washington submitted HHC 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) HHC 
recommendations.\7\ By using a fish consumption rate of 175 grams/day, 
which is consistent with the EPA's proposed rulemaking, Washington's 
HHC addressed the basis for the EPA's 2015 Administrator's 
determination--that it is necessary to adopt new or revised HHC based 
on a higher fish consumption rate.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    For the reasons explained in the EPA's 2016 disapproval letter and 
final federal rule, the EPA disapproved a subset of the HHC 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 HHC using a FCR of 175 g/day,'' noting that the value was 
consistent with the EPA's final federal rule.\10\ However, the EPA 
disagreed with some of the risk management decisions the State made 
during the development of its HHC and its decision not to incorporate 
all components of the updated 2015 CWA Section 304(a) HHC 
recommendations.\11\
---------------------------------------------------------------------------

    \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 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\ 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.
---------------------------------------------------------------------------

    Although the EPA promulgated HHC for Washington in the NTR, and 
subsequently in November 2016, the EPA prefers that states maintain 
primary responsibility and establish their own WQS in keeping with the 
text and structure of the CWA. In response to a February 21, 2017, 
petition from several entities asking the EPA to reconsider the partial 
disapproval of Washington's August 2016 HHC,\12\ the EPA issued a 
letter on August 3, 2018, stating its intent to reconsider the partial 
disapproval of Washington's HHC and the subsequent promulgation of 
federal criteria.\13\ After a thorough review of the State's 2016 
submittal and applicable provisions of the CWA, its implementing 
regulations, and longstanding EPA guidance, on May 10, 2019, the EPA 
reconsidered its partial disapproval of Washington's HHC and approved 
all but two of the criteria that the EPA previously disapproved.\14\ 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. The EPA reaffirmed its November 2016 disapproval of 
the two criteria that Washington submitted for arsenic (water + 
organism and organism only).
---------------------------------------------------------------------------

    \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 FR 85417 (November 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.
---------------------------------------------------------------------------

    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, on August 6, 2019 (84 FR 38150) the EPA proposed to amend 
the federal regulations to withdraw those federally promulgated HHC for 
which the EPA has approved Washington's HHC and provided an opportunity 
for public comment on this proposed action. The EPA received comments 
on the proposed rulemaking and a listing of the comments and the 
Agency's responses are contained in the document ``Response to 
Comments, Revision of Certain Federal Water Quality Criteria Applicable 
to Washington,'' which can be accessed at OW docket number EPA-HQ-OW-
2015-0174. The EPA is now taking action to finalize the withdrawal of 
the federal rule as proposed.
    The withdrawal of the federally promulgated criteria will enable

[[Page 28496]]

Washington to implement its EPA-approved HHC, 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.

III. What are the federal water quality criteria that the EPA is 
withdrawing?

    As discussed in the proposed rulemaking (see 84 FR 38150, August 6, 
2019), this final rule amends the federal regulations to withdraw all 
federal HHC promulgated for Washington in November 2016 at 40 CFR 
131.45,\15\ with the exception of 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, originally promulgated 
under the NTR and now at 40 CFR 131.45 for Washington remain in 
place.\16\ For priority pollutants methylmercury and bis (2-chloro-1-
methylethyl) ether, Washington did not submit criteria for those 
pollutants in its 2016 WQS submittal. Therefore, the federal 
methylmercury and bis (2-chloro-1-methylethyl) ether criteria that the 
EPA promulgated on November 28, 2016 (and that became effective on 
December 28, 2016) remain in effect in the State.
---------------------------------------------------------------------------

    \15\ Revision of Certain Water Quality Standards Applicable to 
Washington, 81 FR 85417 (November 28, 2016).
    \16\ 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.
---------------------------------------------------------------------------

    The EPA did not make any changes in response to the comments 
received on the proposed rulemaking. The EPA received 333 unique 
comments on the proposed rulemaking and approximately 5,000 comments as 
part of mass mailing campaigns. The EPA also held two public hearings 
on the proposed rulemaking (an online hearing on August 28, 2019 and an 
in-person hearing in Seattle, Washington on September 25, 2019) and 
received public comments during those hearings. Brief summaries of the 
comments and the EPA's responses are provided in this section. As noted 
previously, a full accounting of the comments and the Agency's 
responses can be found in the docket for this rulemaking.

A. Comments in Support of the EPA's Proposal To Withdraw the Federal 
HHC

    Some commenters supported the EPA's May 10, 2019 decision to 
approve Washington's HHC upon reconsideration and the EPA's proposal to 
withdraw the federal HHC. These commenters asserted that Washington's 
HHC were sufficiently protective of the applicable designated uses in 
the State and that the federal HHC were unattainable and costly. These 
commenters stated that implementation of Washington's HHC will result 
in meaningful improvements to water quality, rather than regulatory 
uncertainty. Some commenters also noted that withdrawing the federal 
HHC could result in significant cost savings.
    The EPA appreciates the comments in support of its May 10, 2019 
action and proposal to withdraw the federal HHC. More information on 
the EPA's action to approve Washington's HHC 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 rule.
    Some of these commenters also asked the EPA to approve, upon 
reconsideration, Washington's HHC for arsenic. Comments concerning the 
EPA's disapproval of Washington's 2016 arsenic criteria are beyond the 
scope of this rulemaking. The EPA's May 10, 2019 decision document sets 
forth the EPA's rationale for the disapproval.\17\
---------------------------------------------------------------------------

    \17\ 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.
---------------------------------------------------------------------------

B. Comments in Opposition to the EPA's Proposal To Withdraw the Federal 
HHC

    Other commenters opposed the EPA's proposal to withdraw the federal 
HHC and requested that the EPA retain the federal criteria. Many of 
these commenters focused on and described their opposition to the EPA's 
May 10, 2019 decision to approve Washington's HHC upon reconsideration. 
These commenters asserted that Washington's HHC are less stringent than 
the federal HHC and therefore expressed concern that implementation of 
Washington's HHC would reduce protections for human health, especially 
among consumers of large quantities of fish sourced from the waters 
subject to the HHC. Several commenters asserted that the EPA's approval 
of Washington's HHC was arbitrary and capricious because they alleged 
that Washington's HHC are not based on sound scientific rationale, and 
accordingly urged the EPA to retain the federal criteria which they 
asserted are based on sound scientific rationale. The EPA disagrees 
with commenters who asserted or implied that all of Washington's HHC 
are less stringent than the federal HHC. As described in the EPA's May 
10, 2019 decision document, some of Washington's HHC are less stringent 
than the federal HHC, and some are more stringent. Indeed, in 2016 the 
EPA approved 45 of Washington's HHC that were as stringent or more 
stringent than the EPA's calculated HHC. The EPA also disagrees with 
commenters who asserted that the EPA's approval was arbitrary and 
capricious and that Washington's HHC are not based on sound science. 
The EPA's rationale is thoroughly described in the EPA's May 10, 2019 
decision document, including the EPA's conclusion that Washington's HHC 
are based on sound science and are protective of Washington's 
designated uses.
    Commenters also raised concerns about the EPA's approval of 
Washington's HHC for Polychlorinated Biphenyls (PCBs) and requested 
that EPA retain the federal PCB criteria. Some of these commenters 
asserted that the EPA lacks authority to reverse its prior disapproval 
of Washington's HHC and that the reversal and withdrawal of the federal 
rule would lead to litigation and regulatory uncertainty.
    The EPA's authority to promulgate new or revised federal criteria 
is not at issue in this action to withdraw the federal criteria. 
Because the EPA has approved certain HHC developed and submitted by the 
State, the federal HHC that the Agency promulgated after its initial 
disapproval of the State's 2016 submittal are no longer needed. This 
action is consistent with the federal and state roles contemplated by 
the CWA (see 40 CFR 131.21(c)). For the EPA's rationale for approving 
Washington's HHC, see the May 10, 2019 decision document.\18\
---------------------------------------------------------------------------

    \18\ 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.

---------------------------------------------------------------------------

[[Page 28497]]

C. Comments Concerning Methylmercury and Bis (2-Chloro-1-Methylethyl) 
Ether

    Several commenters stated that the EPA should leave the federal HHC 
in place for methylmercury and bis (2-chloro-1-methylethyl) ether and 
that the EPA cannot legally withdraw these HHC and leave nothing in 
place. Other commenters stated that the federal methylmercury HHC are 
unattainable and will result in widespread impairments across the 
State. Some of these commenters questioned the scientific underpinnings 
of the methylmercury HHC. Some commenters recommended that the EPA 
promulgate a revised methylmercury HHC for Washington of 0.3 mg/kg in 
fish tissue, which is the EPA's CWA Section 304(a) national recommended 
criterion for methylmercury. All commenters who addressed this issue 
noted that mercury is a ubiquitous pollutant in Washington's waters. No 
commenters provided information on the presence or absence of bis (2-
chloro-1-methylethyl) ether in Washington's waters.
    CWA Section 303(c)(2)(B) requires that states ``shall adopt 
criteria for all toxic pollutants listed pursuant to Section 1317(a)(1) 
of this title for which criteria have been published under Section 
1314(a) of this title, the discharge or presence of which in the 
affected waters could reasonably be expected to interfere with those 
designated uses adopted by the State, as necessary to support such 
designated uses.'' The EPA is retaining the federal HHC for 
methylmercury and bis (2-chloro-1-methylethyl) ether, consistent with 
CWA Section 303(c)(2)(B) for the following reasons: (1) Methylmercury 
and bis (2-chloro-1-methylethyl) ether are both priority pollutants, 
(2) commenters and the EPA agree that methylmercury is ubiquitous in 
Washington's waters, and (3) no commenters provided information that 
counters the prior conclusion that these priority pollutants could be 
expected to interfere with Washington's uses. The EPA is not 
promulgating a revised HHC value for methylmercury. The 0.3 mg/kg CWA 
Section 304(a) recommended HHC is based on a fish consumption rate of 
17.5 g/day rather than the 175 g/day rate adopted by the State of 
Washington and used by the EPA in deriving the federal HHC for 
methylmercury. There is nothing in the EPA's rulemaking record that 
indicates a different fish consumption rate should be used for a 
methylmercury HHC. However, nothing in this action or in any federal 
regulation would preclude a future rulemaking for HHC using a different 
fish consumption rate that is supported by a rulemaking record.
    The EPA acknowledges the concerns that some commenters raised about 
attainability of the existing federal methylmercury HHC. In 2010, the 
EPA published the comprehensive Guidance for Implementing the January 
2001 Methylmercury Water Quality Criterion (EPA 823-R-10-001) (``2010 
Guidance''), to aid states and authorized tribes in implementing the 
EPA's national CWA Section 304(a) recommended fish tissue-based 
methylmercury water quality criterion. The EPA recommends that 
Washington, like certain other states that have adopted a fish tissue-
based methylmercury criterion, implement the fish tissue criterion 
using a combination of pollutant minimization plans, monitoring, and 
effluent limits or trigger values as appropriate as explained in the 
EPA's 2010 Guidance.
    In circumstances where attaining the methylmercury HHC may not be 
feasible, the State could undertake a new rulemaking and exercise its 
discretion in risk management to make adjustments to the HHC factors in 
the EPA's 2015 304(a) HHC recommendations, including adopting a 
different fish consumption rate that is supported by a rulemaking 
record. Additionally, changes to the applicable designated use or 
adoption of a WQS variance may be an option. The federal regulation at 
40 CFR 131.10(g) provides requirements for establishing, modifying, and 
removing designated uses when attaining the use is not feasible for one 
of the six factors in the regulation. The federal regulation at 40 CFR 
131.3(o) defines a WQS variance as a time-limited designated use and 
criterion, for a specific pollutant or water quality parameter, that 
reflects the highest attainable condition during the term of the WQS 
variance. A WQS variance may be appropriate if attaining the use and 
criterion would not be feasible during the term of the WQS variance 
because of one of the seven factors specified in 40 CFR 
131.14(b)(2)(i)(A), including if NPDES permit limits more stringent 
than technology-based controls would result in substantial and 
widespread economic and social impact. WQS variances adopted in 
accordance with 40 CFR 131.14 (including a public hearing consistent 
with 40 CFR 25.5) provide a flexible but defined pathway for states and 
authorized tribes to issue NPDES permits with limits that are based on 
the highest attainable condition during the term of the WQS variance 
thereby allowing dischargers to make water quality improvements when 
the WQS is not immediately attainable but may be in the future.
    It may be possible for the EPA to identify widely applicable 
reduction targets for mercury and other hard to treat pollutants by 
partnering with interested states and authorized tribes to compile 
literature and share data on available treatment technologies and 
source reduction measures. The EPA has included in the docket for this 
rulemaking a brief presentation that the Agency gave to Washington and 
a handful of other states at a WQS program meeting in September 2019 to 
begin a dialogue on these technical questions for select pollutants. 
The EPA anticipates engaging further with Washington and other 
interested states and authorized tribes on how to best address the 
challenges associated with implementing the methylmercury HHC. The EPA 
has established the email address [email protected] for states 
and authorized tribes to express interest in and/or provide ideas for 
future discussion.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was 
therefore not submitted to the Office of Management and Budget (OMB) 
for review.

B. Executive Order 13771: Reducing Regulations and Controlling 
Regulatory Costs

    This action is a deregulatory action under Executive Order 13771.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information-collection burden 
under the 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 OMB has previously approved the information 
collection requirements contained in the existing regulations 40 CFR 
part 131 and has assigned OMB control number 2040-0049.

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 RFA. This 
action will not impose any requirements on small entities. Small 
entities, such as small businesses or small governmental

[[Page 28498]]

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 UMRA of 1995, 2 U.S.C. 1531-1538, and 
does not significantly or uniquely affect small governments. As this 
action withdraws 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. As part of today's 
action, the EPA has met its responsibilities under Executive Order 
13175 and its Tribal Consultation Policy.
    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 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 expressed dissatisfaction that EPA did not offer consultation 
prior to its May 10, 2019, decision and questioned how meaningful the 
EPA's offer for consultation was on this rule making as a result. 
Between June and November 2019, the EPA's representatives traveled and 
met in person with 16 tribes. One tribe considered the meeting to be a 
formal government-to-government consultation. Additionally, members of 
the Makah Tribe met with Headquarters and Region 10 representatives on 
October 23, 2019 in Washington, DC, which the tribe considered to be 
consultation.
    The tribes expressed opposition to the EPA's May 10, 2019 decision 
and the withdrawal of the federal HHC. A central concern voiced by 
tribes is that they believe the EPA did not engage in meaningful 
consultation with tribal governments prior to its May 10, 2019 
decision. Tribes expressed concern that treaty rights and the federal 
government's trust responsibility were not considered adequately by the 
EPA in the May 10, 2019 decision. Some of the tribes questioned the 
EPA's authority to make such a decision. Tribes described the cultural 
importance of fish and water to their livelihood and the local economy. 
Although Washington's HHC do not apply in Indian Country, tribes 
nonetheless were concerned about the health impacts of Washington's HHC 
on their off-reservation treaty-reserved fishing rights and expressed a 
desire for ``pristine'' waters for future generations. Tribes noted 
that they believe implementation tools exist for the regulated 
community to adapt and meet the federal criteria. Many of the tribes 
indicated that they believe environmental protection can be balanced 
with economic progress, especially through technology improvements.

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

    This rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    The EPA believes 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 is taking final action to amend the federal regulations to withdraw 
certain HHC applicable to waters in the State of Washington. The 
withdrawal will enable Washington to implement its EPA-approved HHC. 
The EPA has previously determined that Washington's adopted and EPA-
approved criteria are protective of human health.

L. Congressional Review Act (CRA)

    This action is subject to the CRA, and the EPA will submit a rule 
report to each House of the Congress and to the Comptroller General of 
the United States. This action is not a ``major rule'' as defined by 5 
U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians-lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: April 17, 2020.
Andrew Wheeler,
Administrator.

    For the reasons set forth in the preamble, the EPA amends 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 28499]]



                                                                 Table 1 to Paragraph (b)--Human Health Criteria for Washington
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                         A                                                                           B                                                                      C
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                      Cancer slope                                      Reference                           Bio-          Water &
                                                       factor, CSF    Relative source contribution,     dose, RfD   Bio-accumulation    concentration    organisms
                Chemical                   CAS No.      (per mg/                 RSC (-)                  (mg/        factor (L/kg      factor (L/kg    ([micro]g/   Organisms only ([micro]g/L)
                                                      kg[middot]d)                                    kg[middot]d)       tissue)           tissue)          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.
* 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.
** Bis (2-Chloro-1-Methylethyl) Ether was previously listed as Bis (2-Chloroisopropyl) Ether.

* * * * *
[FR Doc. 2020-08497 Filed 5-12-20; 8:45 am]
 BILLING CODE 6560-50-P