[Federal Register Volume 85, Number 172 (Thursday, September 3, 2020)]
[Proposed Rules]
[Pages 54967-54970]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18081]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2015-0804; FRL-10013-01-OW]
RIN 2040-AG00


Withdrawal of Certain Federal Water Quality Criteria Applicable 
to Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The United States Environmental Protection Agency (EPA or 
Agency) proposes to amend the federal regulations to withdraw human 
health criteria (HHC) for toxic pollutants applicable to waters in the 
State of Maine. EPA proposes to take this action because Maine adopted, 
and EPA approved, HHC that the Agency determined are protective of the 
designated uses for these waters. EPA is providing an opportunity for 
public comment on this proposed withdrawal of federally promulgated 
HHC. The withdrawal would enable Maine to implement its EPA-approved 
HHC, submitted on April 24, 2020, and approved on June 23, 2020, as 
applicable criteria for Clean Water Act (CWA or the Act) purposes.

DATES: Comments must be received on or before October 19, 2020.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2015-0804, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments at https://www.regulations.gov.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, Office of Water Docket, Mail Code 28221T, 1200 Pennsylvania 
Avenue NW, Washington, DC 20460.
     Hand Delivery or Courier (by scheduled appointment only): 
EPA Docket Center, WJC West Building, Room 3334, 1301 Constitution 
Avenue NW, Washington, DC 20004. The Docket Center's hours of 
operations are 8:30 a.m. to 4:30 p.m., Monday through Friday (except 
Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document. Out 
of an abundance of caution for members of the public and our staff, the 
EPA Docket Center and Reading Room are closed to the public, with 
limited exceptions, to reduce the risk of transmitting COVID-19. Our 
Docket Center staff will continue to provide remote customer service 
via email, phone, and webform. We encourage the public to submit 
comments via https://www.regulations.gov, as there may be a delay in 
processing mail and faxes. Hand deliveries and couriers may be received 
by scheduled appointment only. For further information on EPA Docket 
Center services and the current status, please visit us online at 
https://www.epa.gov/dockets.
    EPA is offering two virtual 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-maine. Refer to the SUPPLEMENTARY INFORMATION 
section below for additional information.

FOR FURTHER INFORMATION CONTACT: Jennifer Brundage, Office of Water, 
Standards and Health Protection Division (4305T), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: (202) 566-1265; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows:

I. Public Participation
    A. Written Comments

[[Page 54968]]

    B. Virtual Public Hearing
II. General Information
    Does this action apply to me?
III. Background
    A. What are the applicable federal statutory and regulatory 
requirements?
    B. What are the applicable federal water quality criteria that 
EPA is proposing to withdraw?
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

I. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2015-
0804, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. EPA may publish 
any comment received to its public docket. Do not submit to EPA's 
docket at https://www.regulations.gov 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. 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://www.epa.gov/dockets/commenting-epa-dockets.
    EPA is temporarily suspending its Docket Center and Reading Room 
for public visitors, with limited exceptions, to reduce the risk of 
transmitting COVID-19. Our Docket Center staff will continue to provide 
remote customer service via email, phone, and webform. We encourage the 
public to submit comments via https://www.regulations.gov/ as there may 
be a delay in processing mail and faxes. Hand deliveries or couriers 
will be received by scheduled appointment only. For further information 
and updates on EPA Docket Center services, please visit us online at 
https://www.epa.gov/dockets.
    EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our Federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

B. Virtual Public Hearing

    To register to speak at the virtual hearing, please visit https://www.epa.gov/wqs-tech/water-quality-standards-regulations-maine or 
contact Jennifer Brundage via telephone at (202) 566-1265 or via email 
at [email protected].
    Each commenter will have three minutes to provide oral testimony. 
EPA recommends submitting the text of your oral comments as written 
comments to the rulemaking docket. EPA may ask clarifying questions 
during the oral presentations but will not respond to the presentations 
at that time. Written statements and supporting information submitted 
during the comment period will be considered with the same weight as 
oral comments and supporting information presented at the public 
hearing.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.regulations.gov. While EPA expects the 
hearing to go forward as set forth above, please monitor our website or 
contact Jennifer Brundage via telephone at (202) 566-1265 or via email 
at [email protected] to determine if there are any updates. EPA 
does not intend to publish a document in the Federal Register 
announcing updates.

II. General Information

Does this action apply to me?

    This proposed action would serve to withdraw federal HHC that are 
no longer needed due to EPA's June 23, 2020, approval of corresponding 
State HHC. Entities discharging in Maine waters may be indirectly 
affected by this rulemaking. Citizens concerned with water quality in 
Maine, including members of the federally recognized Indian tribes in 
Maine, may also be interested in this rulemaking. The State of Maine 
may be interested in this rulemaking, as after the completion of this 
rulemaking, Maine's EPA-approved HHC, rather than the federal HHC, will 
be the applicable water quality standards (WQS) in Maine 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.

III. Background

A. What are the applicable federal statutory and regulatory 
requirements?

    Consistent with the CWA, EPA's WQS program assigns to states and 
authorized tribes the primary authority for adopting WQS.\1\ After 
states adopt WQS, they must be submitted to EPA for review and action 
in accordance with the CWA. The Act authorizes EPA to promulgate 
federal WQS following 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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B. What are the applicable federal water quality criteria that EPA is 
proposing to withdraw?

    On December 19, 2016, EPA promulgated federal HHC for 96 toxic 
pollutants for waters in Indian lands in Maine based on the Agency's 
2015 disapproval of corresponding state-established HHC and an 
Administrator's determination that new or revised WQS were necessary to 
meet the requirements of the Act. 81 FR 92466 (December 19, 2016). EPA 
also promulgated a phenol criterion to protect human health from 
consumption of water plus organisms for waters outside of Indian lands 
in Maine after disapproving the State's phenol criterion in 2015 
because it contained a mathematical error.
    EPA's 2015 disapproval of the State's HHC for waters in Indian 
lands was based on its decision that they were inadequate to protect 
the sustenance fishing designated uses that EPA interpreted and 
approved for waters in Indian lands in the same 2015 action. On May 27, 
2020, after a thorough review of the applicable provisions of the CWA, 
implementing regulations and longstanding EPA guidance, EPA withdrew 
its 2015 interpretation and improper approvals of the alleged 
sustenance fishing designated uses and

[[Page 54969]]

corresponding disapprovals of Maine's HHC that flowed from the flawed 
designated use determinations.\3\ Also on that date, EPA approved 
Maine's general fishing designated use for waters in Indian lands 
without the interpretation that it means ``sustenance fishing.'' \4\
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    \3\ Letter from Dennis Deziel, Regional Administrator, EPA 
Region 1, to Gerald D. Reid, Commissioner, Maine Department of 
Environmental Protection, ``Re: Withdrawal of Certain of EPA's 
February 2, 2015 Decisions Concerning Water Quality Standards for 
Waters in Indian Lands'' (May 27, 2020).
    \4\ In 2019, Maine adopted, and EPA approved, a sustenance 
fishing designated use (SFDU) subcategory of its general fishing 
designated use for certain identified waters where sustenance 
fishing or increased fish consumption is or may be occurring.
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    On April 24, 2020, the Maine Department of Environmental Protection 
(DEP) submitted new and revised WQS in accordance with section 303(c) 
of the CWA. The new and revised provisions included HHC. On June 23, 
2020, EPA approved the State's new and revised HHC as consistent with 
the requirements of the CWA and applicable federal regulations.\5\ 
There are two sets of HHC in the State's newly approved criteria. One 
set protects the statewide general ``fishing'' designated use, and the 
other set protects the State's new ``sustenance fishing'' designated 
use subcategory that applies to specifically identified waters where 
sustenance fishing is or may be occurring. Between these two sets of 
HHC, all of the waters covered by EPA's promulgated federal HHC for 
toxic pollutants in 2016 are addressed. The new and revised HHC also 
address all the toxic pollutants for which EPA promulgated federal HHC 
in 2016. All of EPA's prior decisions and action letters related to 
these Agency actions are available in docket ID EPA-HQ-OW-2015-0804 at 
https://www.regulations.gov.
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    \5\ Letter from Ken Moraff, Water Division Director, EPA Region 
1, to Gerald D. Reid, Commissioner, Maine Department of 
Environmental Protection, ``Re: Review and Action on Maine Water 
Quality Standards, 06-096 Chapter 584'' (June 23, 2020).
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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 EPA withdraws the federal standards. EPA's 
2016 federally promulgated HHC are as stringent as or more stringent 
than the State's newly approved HHC. Accordingly, EPA is proposing to 
amend the federal regulations to withdraw those federally promulgated 
HHC for which the Agency has approved Maine's corresponding HHC and is 
providing an opportunity for public comment on this proposed action.
    EPA additionally hereby withdraws its 2016 CWA section 303(c)(4)(B) 
determination (``Administrator's Determination'') that new or revised 
WQS are necessary to meet the requirements of the Act. 81 FR 23239, 
23243 (April 20, 2016) (``Accordingly, for the waters in Maine where 
there is a sustenance fishing designated use and Maine's existing HHC 
are in effect, EPA hereby determines under CWA section 303(c)(4)(B) 
that new or revised WQS for the protection of human health are 
necessary to meet the requirements of the CWA for such waters.''). As 
EPA stated in its Response to Comments document supporting its 
withdrawal and revision of its 2015 decisions, the Administrator's 
Determination was rendered inoperative when EPA withdrew the 2015 
sustenance fishing designated use approvals, as the determination was 
specifically linked to waters covered by and relied entirely on those 
now-withdrawn designated use approvals.\6\ Because the Administrator's 
Determination is now a nullity, EPA withdraws it as a matter of 
administrative clarity.
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    \6\ Attachment B, Letter from Dennis Deziel, Regional 
Administrator, EPA Region 1, to Gerald D. Reid, Commissioner, Maine 
Department of Environmental Protection, ``Re: Withdrawal of Certain 
of EPA's February 2, 2015 Decisions Concerning Water Quality 
Standards for Waters in Indian Lands'' (May 27, 2020).
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    EPA's proposal to withdraw federally promulgated HHC following 
approval of state corresponding HHC is consistent with the federal and 
state roles contemplated by the CWA. Consistent with the cooperative 
federalism structure of the CWA, once EPA approves state WQS addressing 
the same pollutants for which EPA has promulgated federal WQS, it is 
incumbent on EPA to withdraw the federal WQS to enable EPA-approved 
state WQS to become the applicable WQS for CWA purposes. That is what 
EPA is proposing to do in this proposed rulemaking. This proposal is 
consistent with EPA's withdrawal of other federally promulgated WQS 
following the Agency's approval of state-adopted WQS.\7\
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    \7\ See e.g., Withdrawal of Certain Federal Water Quality 
Criteria Applicable to California: Lead, Chlorodibromomethane, and 
Dichlorobromomethane, 83 FR 52163 (October 16, 2018); Water Quality 
Standards for the State of Florida's Lakes and Flowing Waters; 
Withdrawal, 79 FR 57447 (September 25, 2014); Withdrawal of Certain 
Federal Water Quality Criteria Applicable to California, New Jersey 
and Puerto Rico, 78 FR 20252 (April 4, 2013).
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    This action proposes to amend federal regulations to withdraw all 
federal HHC for waters in Indian lands and the phenol criterion for 
waters outside of Indian lands promulgated for Maine in December 2016 
at 40 CFR 131.43. All other federally promulgated criteria at 40 CFR 
131.43 will remain in effect.

IV. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders 
can be found at http://www2.epa.gov/laws-regulations/laws-and-executive-orders.

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 not expected to be a regulatory action under 
Executive Order 13771 because this action is not significant under 
Executive Order 12866.

C. Paperwork Reduction Act (PRA)

    This action does not impose any new information-collection burden 
under the PRA because it is proposing to administratively withdraw 
federal requirements that are no longer needed in Maine. 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 jurisdictions, 
are not directly regulated by this rule.

E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in 
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 proposes to withdraw certain 
federally promulgated criteria, the action imposes no enforceable duty 
on any state, local, or tribal governments, or the private sector.

[[Page 54970]]

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 has tribal implications. However, it will neither 
impose substantial direct compliance costs on federally recognized 
tribal governments, nor preempt tribal law. In the State of Maine, 
there are four federally recognized Indian tribes represented by five 
tribal governments. As a result of the unique jurisdictional provisions 
of the Maine Indian Claims Settlement Act, the state has jurisdiction 
for setting WQS for all waters in Indian lands in Maine. This rule will 
have no effect on that jurisdictional arrangement. This rule would 
affect federally recognized Indian tribes in Maine because it changes 
the water quality standards applicable to all waters in Indian lands.
    EPA initiated consultation with federally recognized tribal 
officials under 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. A summary of 
that consultation is provided in ``Summary of Tribal Consultations 
Regarding Water Quality Standards Decisions on Remand Applicable to 
Waters in Indian Lands within Maine,'' which is available in the docket 
for this rulemaking.

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 subject to Executive Order 13211, because it is 
not a significant regulatory action under Executive Order 12866.

J. National Technology Transfer and Advancement Act

    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

    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). EPA 
has previously determined that Maine's state-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.

Andrew Wheeler,
Administrator.
    For the reasons set forth in the preamble, 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


Sec.  131.43  [Amended]

0
2. Amend Sec.  131.43 by removing paragraphs (a) and (j) and re-
designating paragraphs (b) through (i) as paragraphs (a) through (h).

[FR Doc. 2020-18081 Filed 9-2-20; 8:45 am]
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