[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: 
<a href="/cdn-cgi/l/email-protection#acceded9c2c8cdcbc982c6c9c2c2c5cac9deecc9dccd82cbc3da"><span class="__cf_email__" data-cfemail="91f3e3e4fff5f0f6f4bffbf4fffff8f7f4e3d1f4e1f0bff6fee7">[email protected]</span></a> 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]
BILLING CODE 6560-50-P


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