[Federal Register Volume 85, Number 245 (Monday, December 21, 2020)]
[Rules and Regulations]
[Pages 82936-82939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26998]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2015-0804; FRL-10017-97-OW]
RIN 2040-AG00
Withdrawal of Certain Federal Water Quality Criteria Applicable
to Maine
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The United States Environmental Protection Agency (EPA or
Agency) is taking final action to amend the Federal regulations to
withdraw human health criteria (HHC) for toxic pollutants applicable to
waters in the State of Maine. EPA is taking this action because Maine
adopted, and EPA approved, HHC that the Agency determined are
protective of the designated uses for these waters. This final rule
amends the Federal regulations to withdraw certain HHC applicable to
Maine that the Agency had promulgated, as described in the September 3,
2020 proposed rule. The withdrawal of these certain federally
promulgated HHC will 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: This final rule is effective December 21, 2020.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2015-0804. All documents in the docket are listed on the
http://www.regulations.gov website. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
for which disclosure is restricted by statute. Certain other material,
such as copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through http://www.regulations.gov.
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] or visit https://www.epa.gov/wqs-tech/federal-water-quality-standards-applicable-maine.
SUPPLEMENTARY INFORMATION: This final rule is organized as follows:
I. General Information
A. 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
EPA is withdrawing?
C. Comments on the Proposed Rulemaking
D. Effective Date of Withdrawal
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
D. Regulatory Flexibility Act
E. Unfunded Mandates Reform Act
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)
L. Congressional Review Act
I. General Information
A. Does this action apply to me?
The State of Maine, as well as entities that discharge pollutants
to waters of the United States under the State of Maine's jurisdiction,
such as industrial facilities, stormwater and combined sewer overflow
(CSO) management districts, or publicly owned treatment works (POTWs),
may be interested in this final rule because it withdraws Federal water
quality standards (WQS) promulgated by EPA to allow the State of
Maine's WQS to become the applicable WQS for CWA purposes. Entities
discharging in Maine's waters and citizens concerned with water quality
in Maine, including members of the federally recognized Indian tribes,
may be interested in this final rule. 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, 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
withdrawing?
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
[[Page 82937]]
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 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
submitted new and revised WQS in accordance with CWA Section 303(c).
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 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 WQS. EPA's 2016
federally promulgated HHC are as stringent or more stringent than the
State's newly approved HHC. Accordingly, EPA is amending the Federal
regulations to withdraw those federally promulgated HHC for which the
Agency has approved Maine's corresponding HHC.
EPA's withdrawal of federally promulgated HHC following approval of
corresponding state 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. This final rule will allow
Maine to implement its EPA-approved WQS. This final rule is consistent
with EPA's withdrawal of other federally promulgated WQS following the
Agency's approval of state-adopted WQS.\6\
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\6\ 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 final rule amends 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
remain in effect.
EPA did not make any changes in response to the comments received
on the proposed rulemaking. EPA received eight unique comments on the
proposed rulemaking. EPA also held two public, online hearings on the
proposed rulemaking (September 30, 2020, and October 1, 2020). EPA
received no comments during these hearings. Brief summaries of the
comments and EPA's responses are provided in the next section. As noted
previously, a full accounting of the comments and the Agency's
responses can be found in the docket for this rulemaking.
C. Comments on the Proposed Rulemaking
i. Comments in Support of EPA's Proposal To Withdraw the Federal HHC
EPA received several comments in support of the proposal to
withdraw the Federal HHC. EPA appreciates the comments in support of
this action. Several of these commenters also urged EPA to withdraw
other federally promulgated WQS, specifically relating to mixing zones
and aquatic life criteria for certain waters, which are not related to
the HHC for toxic pollutants that are the subject of this rulemaking.
EPA's proposal solicited comments only on withdrawing the Federal HHC
for toxic pollutants and these comments are outside the scope of this
proceeding.
ii. Comments in Opposition to EPA's Proposal To Withdraw the Federal
HHC
EPA received two comments in opposition to EPA's proposal to
withdraw the Federal HHC. Both comments object to the proposal based on
the stringency, scope, and enforceability of the HHC that would remain
in place after the withdrawal, i.e., the State of Maine's federally
approved HHC. The protectiveness of the State's federally approved HHC,
however, is outside the scope of this rulemaking. EPA's June 23, 2020,
approval of the State's HHC was a separate, final agency action. EPA's
rationale for this approval is provided in detail in the attachment to
the approval letter. More information on EPA's action to approve
Maine's HHC can be accessed at https://www.epa.gov/sites/production/files/2020-06/documents/hhc_approval_decision_final.pdf.
Given that EPA approved state HHC that correspond to the federally
approved HHC, the Agency is thus withdrawing its Federal criteria so
that the state criteria are the applicable WQS for CWA purposes. See 40
CFR 131.21(c).
D. Effective Date of Withdrawal
Section 553(d)(3) of the Administrative Procedure Act (APA), 5
U.S.C. 553(d), provides that final rules shall not become effective
until 30 days after publication in the Federal Register ``except . . .
as otherwise provided by the agency for good cause.'' The purpose of
this provision is to ``give affected parties a reasonable time to
adjust their behavior before the final rule takes effect.'' Omnipoint
Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see
also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977)
(quoting legislative history). Thus, in determining whether good cause
exists to waive the 30-day delay, an agency should ``balance the
necessity for immediate implementation against principles of
fundamental fairness which require that all affected persons be
afforded a reasonable amount of time to prepare for the effective date
of its ruling.'' Gavrilovic, 551 F.2d at 1105. In this case, EPA has
determined that there
[[Page 82938]]
is good cause for waiving the 30-day delayed effective date because the
final rule does not impose any new requirement on any affected entity,
rather it withdraws Federal WQS applicable to waters in the State of
Maine, thus allowing Maine's WQS to take effect for CWA purposes.
Because by itself this final rule does not impose new requirements on
affected entities, it is not necessary to provide affected entities
time to adjust to this final rule. Having this withdrawal take effect
upon publication in the Federal Register will help provide immediate
clarity for the State of Maine as it proceeds with creating its latest
list of impaired of waters under CWA Section 303(d), as well as in
issuing NPDES permits, developing TMDLs, and issuing water quality
certifications under CWA Section 401. For these reasons, the Agency
finds that good cause exists under APA Section 553(d)(3) to make this
rule withdrawing Federal WQS in Maine effective immediately upon
publication.
III. 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 a deregulatory action under Executive Order 13771.
C. Paperwork Reduction Act
This action does not impose any new information-collection burden
under the Paperwork Reduction Act because it is administratively
withdrawing 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
The Agency certifies that this action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act. This action will not impose any
requirements on small entities.
E. Unfunded Mandates Reform Act
This action does not contain Federal mandates under the provisions
of Title II of the Unfunded Mandates Reform Act 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 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 final rule
affects federally recognized Indian tribes in Maine because it changes
the WQS 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 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)
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the Agency has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
Section 2-202 of the Executive order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk that may disproportionately affect 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 final rule does not involve technical standards.
K. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)
The human health or environmental risk addressed by this action
will not have disproportionately high and adverse human health or
environmental effects on minority, low income or indigenous
populations. EPA has previously determined that Maine's state-adopted
and EPA-approved criteria are protective of human health.
L. Congressional Review Act
This action is subject to the Congressional Review Act and 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.
Andrew Wheeler,
Administrator.
For the reasons set forth in the preamble, EPA amends 40 CFR part
131 as follows:
[[Page 82939]]
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
redesignating paragraphs (b) through (i) as paragraphs (a) through (h).
[FR Doc. 2020-26998 Filed 12-18-20; 8:45 am]
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