Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules 23239 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, the SIP is not approved 

to apply on any Indian reservation land 

or in any other area where EPA or an 

Indian tribe has demonstrated that a 

tribe has jurisdiction. In those areas of 

Indian country, the proposed rule does 

not have tribal implications and will not 

impose substantial direct costs on tribal 

governments or preempt tribal law as 

specified by Executive Order 13175 (65 

FR 67249, November 9, 2000). 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Carbon monoxide, 

Incorporation by reference, 

Intergovernmental relations, Lead, 

Nitrogen dioxide, Ozone, Particulate 

matter, Reporting and recordkeeping 

requirements, Sulfur oxides, and 

Volatile organic compounds. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: April 7, 2016. 

Ron Curry, 

Regional Administrator, Region 6. 

[FR Doc. 2016–08927 Filed 4–19–16; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2015–0804; FRL–9945–03– 

OW] 

RIN 2040–AF59 

Proposal of Certain Federal Water 

Quality Standards Applicable to Maine 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) proposes federal Clean 

Water Act (CWA) water quality 

standards (WQS) that would apply to 

certain waters under the state of Maine’s 

jurisdiction. EPA proposes human 

health criteria (HHC) to protect the 

sustenance fishing use in those waters 

in Indian lands and for waters subject to 

sustenance fishing rights under the 

Maine Implementing Act (MIA) based 

on a fish consumption rate that 

represents an unsuppressed level of fish 

consumption by the four federally 

recognized tribes. EPA proposes six 

additional WQS for waters in Indian 

lands in Maine, two WQS for all waters 

in Maine including waters in Indian 

lands, and one WQS for waters in Maine 

outside of Indian lands. These proposed 

WQS take into account the best 

available science, including local and 

regional information, as well as 

applicable EPA policies, guidance, and 

legal requirements, to protect human 

health and aquatic life. EPA proposes 

these WQS to address various 

disapprovals of Maine’s standards that 

EPA issued in February, March, and 

June 2015, and to address the 

Administrator’s determination that 

Maine’s disapproved HHC are not 

adequate to protect the designated use 

of sustenance fishing for certain waters. 

DATES: Comments must be received on 

or before June 20, 2016. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

OW–2015–0804 at http://

www.regulations.gov. Follow the online 

instructions for submitting comments. 

Once submitted, comments cannot be 

edited or removed from Regulations.gov. 

EPA may publish any comment received 

to its public docket. Do not submit 

electronically any information you 

consider to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Multimedia submissions (audio, video, 

etc.) must be accompanied by a written 

comment. The written comment is 

considered the official comment and 

should include discussion of all points 

you wish to make. 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 

http://www.epa.gov/dockets/

commenting-epa-dockets. EPA is 

offering two virtual public hearings so 

that interested parties may also provide 

oral comments on this proposed rule. 

The first hearing will be on Tuesday, 

June 7, 2016 from 5:00 p.m. to 7:00 p.m. 

Eastern Daylight Time. The second 

hearing will be on Thursday, June 9, 

2016 from 9:00 a.m. to 11:00 a.m. 

Eastern Daylight Time. For more details 

on the public hearings and a link to 

register, please visit http://

www.epa.gov/wqs-tech/proposed-rulemaine-water-quality-standards. 

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: Brundage.jennifer@

epa.gov. 

SUPPLEMENTARY INFORMATION: This 

proposed rule is organized as follows: 

I. General Information 

Does this action apply to me? 

II. Background 

A. Statutory and Regulatory Background 

B. EPA’s Disapprovals of Portions of 

Maine’s Water Quality Standards 

C. Scope of Waters 

D. Applicability of EPA Promulgated Water 

Quality Standards When Final 

III. CWA 303(c)(4)(B) Determination of 

Necessity for Human Health Criteria 

That Protect Sustenance Fishing 

IV. Proposed Water Quality Standards 

A. Proposed WQS for Waters in Indian 

Lands in Maine and for Waters Outside 

of Indian Lands in Maine Where the 

Sustenance Fishing Designated Use 

Established by 30 M.R.S. 6207(4) and (9) 

Applies 

B. Proposed WQS for Waters in Indian 

Lands in Maine 

C. Proposed WQS for All Waters in Maine 

D. Proposed WQS for Waters in Maine 

Outside of Indian Lands 

V. Economic Analysis 

A. Identifying Affected Entities 

B. Method for Estimating Costs 

C. Results 

VI. Statutory and Executive Order Reviews 

A. Executive Order 12866 (Regulatory 

Planning and Review) and Executive 

Order 13563 (Improving Regulation and 

Regulatory Review) 

B. Paperwork Reduction Act 


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1USEPA. 2000. Memorandum #WQSP–00–03. 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. http://water.epa.gov/

scitech/swguidance/standards/upload/2000_10_31_

standards_shellfish.pdf. 

2Final Updated Ambient Water Quality Criteria 

for the Protection of Human Health, (80 FR 36986, 

June 29, 2015). See also: USEPA. 2015. Final 2015 

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. http://

water.epa.gov/scitech/swguidance/standards/

criteria/current/hhfinal.cfm. 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

H. Executive Order 13211 (Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use) 

I. National Technology Transfer and 

Advancement Act of 1995 

J. Executive Order 12898 (Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations) 

I. General Information 

Does this action apply to me? 

Entities such as industries, 

stormwater management districts, or 

publicly owned treatment works 

(POTWs) that discharge pollutants to 

waters of the United States in Maine 

could be indirectly affected by this 

rulemaking, because federal WQS 

promulgated by EPA are applicable to 

CWA regulatory programs, such as 

National Pollutant Discharge 

Elimination System (NPDES) 

permitting. Citizens concerned with 

water quality in Maine, including 

members of the federally recognized 

Indian tribes in Maine, could also be 

interested in this rulemaking. 

Dischargers that could potentially be 

affected include the following: 

TABLE 1—DISCHARGERS POTENTIALLY AFFECTED BY THIS RULEMAKING

Category Examples of potentially affected entities 

Industry ................................................................ Industries discharging pollutants to waters of the United States in Maine. 

Municipalities ....................................................... Publicly owned treatment works or other facilities discharging pollutants to waters of the 

United States in Maine. 

Stormwater Management Districts ...................... Entities responsible for managing stormwater runoff in the state of Maine.

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities that could 

be indirectly affected by this action. 

Any parties or entities who depend 

upon or contribute to the water quality 

of Maine’s waters could be affected by 

this proposed rule. To determine 

whether your facility or activities could 

be affected by this action, you should 

carefully examine this proposed rule. If 

you have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

II. Background 

A. Statutory and Regulatory Background 

1. Clean Water Act (CWA) 

CWA section 101(a)(2) establishes as 

a national goal ‘‘water quality which 

provides for the protection and 

propagation of fish, shellfish, and 

wildlife, and recreation in and on the 

water, wherever attainable.’’ These are 

commonly referred to as the ‘‘fishable/ 

swimmable’’ goals of the CWA. EPA 

interprets ‘‘fishable’’ uses to include, at 

a minimum, designated uses providing 

for the protection of aquatic 

communities and human health related 

to consumption of fish and shellfish.1

CWA section 303(c) (33 U.S.C. 

1313(c)) directs states to adopt water 

quality standards (WQS) for waters 

under their jurisdiction subject to the 

CWA. CWA section 303(c)(2)(A) and 

EPA’s implementing regulations at 40 

CFR part 131 require, among other 

things, that a state’s WQS specify 

appropriate designated uses of the 

waters, and water quality criteria to 

protect those uses that are based on 

sound scientific rationale. EPA’s 

regulations at 40 CFR 131.11(a)(1) 

provide that such criteria ‘‘must be 

based on sound scientific rationale and 

must contain sufficient parameters or 

constituents to protect the designated 

use.’’ In addition, 40 CFR 131.10(b) 

provides that ‘‘[i]n designating uses of a 

water body and the appropriate criteria 

for those uses, the state shall take into 

consideration the water quality 

standards of downstream waters and 

ensure that its water quality standards 

provide for the attainment and 

maintenance of the water quality 

standards of downstream waters.’’ 

States are required to review 

applicable WQS at least once every 

three years and, if appropriate, revise or 

adopt new standards (CWA section 

303(c)(1)). Any new or revised WQS 

must be submitted to EPA for review, to 

determine whether it meets the CWA’s 

requirements, and for approval or 

disapproval (CWA section 303(c)(2)(A) 

and (c)(3)). If EPA disapproves a state’s 

new or revised WQS, the CWA provides 

the state ninety days to adopt a revised 

WQS that meets CWA requirements, 

and if it fails to do so, EPA shall 

promptly propose and then promulgate 

such standard unless EPA approves a 

state replacement WQS first (CWA 

section 303(c)(3) and (c)(4)(A)). If the 

state adopts and EPA approves a state 

replacement WQS after EPA 

promulgates a standard, EPA then 

withdraws its promulgation. CWA 

section 303(c)(4)(B) authorizes the 

Administrator to determine, even in the 

absence of a state submission, that a 

new or revised standard is necessary to 

meet CWA requirements. Upon making 

such a determination, EPA shall 

promptly propose, and then within 

ninety days promulgate, any such new 

or revised standard unless prior to such 

promulgation, the state has adopted a 

revised or new WQS which EPA 

determines to be in accordance with the 

CWA. 

Under CWA section 304(a), EPA 

periodically publishes water quality 

criteria recommendations for states to 

consider when adopting water quality 

criteria for particular pollutants to 

protect the CWA section 101(a)(2) goal 

uses. For example, in 2015, EPA 

updated its 304(a) recommended criteria 

for human health for 94 pollutants (the 

2015 criteria update).2 Where EPA has 

published recommended criteria, states 

should consider adopting water quality 

criteria based on EPA’s CWA section 

304(a) criteria, section 304(a) criteria 

modified to reflect site-specific 

conditions, or other scientifically 

defensible methods (40 CFR 

131.11(b)(1)). CWA section 303(c)(2)(B) 

requires states to adopt numeric criteria 

for all toxic pollutants listed pursuant to 

CWA section 307(a)(1) for which EPA 

has published 304(a) criteria, as 

necessary, to support the states’ 

designated uses. 


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3 Generally, the norm elsewhere in the country is 

that EPA has authority to set WQS for Indian 

country waters, with tribes that have obtained 

treatment in a manner similar to a state under CWA 

section 518 gaining authority to set WQS for their 

reservations. 

4As discussed above, unlike in other states, 

Maine has the authority to promulgate WQS for 

waters in Indian lands in Maine, as a result of state 

and federal statutes that resolved the land claims 

of tribes in Maine. 

5EPA’s March and June decisions included 

several disapprovals for which no promulgation is 

necessary, and therefore those disapprovals are not 

discussed herein. Those disapprovals related to 

certain pesticide and chemical discharge 

provisions, certain exceptions to prohibitions on 

discharges to Class AA and SA waters, and the 

reclassification of a 0.3 mile segment of Long Creek 

that flows through Westbrook, Maine. In addition, 

EPA is not promulgating WQS related to certain 

HHC that EPA disapproved for the reasons 

discussed in section IV.A.1.c. 

2. Maine Indian Settlement Acts 

There are four federally recognized 

Indian tribes in Maine represented by 

five governing bodies. The Penobscot 

Nation and the Passamaquoddy Tribe 

have reservations and trust land 

holdings in central and coastal Maine. 

The Passamaquoddy Tribe has two 

governing bodies, one on the Pleasant 

Point Reservation and another on the 

Indian Township Reservation. The 

Houlton Band of Maliseet Indians and 

the Aroostook Band of Micmacs have 

trust lands further north in the state. To 

simplify the discussion of the legal 

framework that applies to each Tribe’s 

territory, EPA will refer to the Penobscot 

Nation and the Passamaquoddy Tribe 

together as the ‘‘Southern Tribes’’ and 

the Houlton Band of Maliseet Indians 

and Aroostook Band of Micmacs as the 

‘‘Northern Tribes.’’ EPA acknowledges 

that these are collective appellations the 

tribes themselves have not adopted, and 

the Agency uses them solely to simplify 

this discussion. 

In 1980, Congress passed the Maine 

Indian Claims Settlement Act (MICSA) 

that resolved litigation in which the 

Southern Tribes asserted land claims to 

a large portion of the state of Maine. 25 

U.S.C. 1721, et seq. MICSA ratified a 

state statute passed in 1979, the Maine 

Implementing Act (MIA, 30 M.R.S. 

6201, et seq.), which was designed to 

embody the agreement reached between 

the state and the Southern Tribes. In 

1981, MIA was amended to include 

provisions for land to be taken into trust 

for the Houlton Band of Maliseet 

Indians, as provided for in MICSA. 30 

M.R.S. 6205–A; 25 U.S.C. 1724(d)(1). 

Since it is Congress that has plenary 

authority as to federally recognized 

Indian tribes, MIA’s provisions 

concerning jurisdiction and the status of 

the tribes are effective as a result of, and 

consistent with, the Congressional 

ratification in MICSA. 

In 1989, the Maine legislature passed 

the Micmac Settlement Act (MSA) to 

embody an agreement as to the status of 

the Aroostook Band of Micmacs. 30 

M.R.S. 7201, et seq. In 1991, Congress 

passed the Aroostook Band of Micmacs 

Settlement Act (ABMSA), which ratified 

the MSA. 25 U.S.C. 1721, Act Nov. 26, 

1991, Public Law 102–171, 105 Stat. 

1143. One principal purpose of both 

statutes was to give the Micmacs the 

same settlement that had been provided 

to the Maliseets in MICSA. See ABMSA 

2(a)(4) and (5). In 2007, the U.S. Court 

of Appeals for the First Circuit 

confirmed that the Micmacs and 

Maliseets are subject to the same 

jurisdictional provisions in MICSA. 

Aroostook Band of Micmacs v. Ryan, 

484 F.3d 41 (1st Cir. 2007). Where 

appropriate, this preamble discussion 

will refer to the combination of MICSA, 

MIA, ABMSA, and MSA as the 

‘‘settlement acts.’’ 

As discussed in greater detail in 

EPA’s February 2, 2015, decision 

disapproving certain Maine WQS in 

waters in Indian lands, a key purpose of 

the settlement acts was to confirm and 

expand the Tribes’ land base, in the 

form of both reservations and trust 

lands, so that the Tribes may preserve 

their culture and sustenance practices, 

including sustenance fishing. For the 

Passamaquoddy Tribe and Penobscot 

Nation, the settlement acts expressly 

confirmed an aboriginal right to 

sustenance fishing in their reservations. 

See 30 M.R.S. 6207(4). 

The legislative record of the 

settlement acts makes clear that 

Congress also intended to ensure the 

tribes’ continuing ability to practice 

their traditional sustenance lifeways, 

including fishing, from their trust lands. 

With regard to the Passamaquoddy and 

Penobscot trust lands, legislative intent 

to provide for tribal sustenance fishing 

practices is, for example, reflected in 

MIA provisions which grant tribal 

control of fishing in certain trust waters 

and require the consideration of tribal 

sustenance practices in the setting of 

fishing regulations for the remaining 

trust waters. See 30 M.R.S. 6207(1), (3). 

As for the Micmacs and Maliseets, the 

settlement acts similarly provide for the 

opportunity to continue their 

sustenance fishing practices, though 

subject to more direct state regulation 

than that of the Passamaquoddy or 

Penobscot. In its February 2, 2015, 

decision, EPA concluded that MICSA 

directly provides the state with 

jurisdiction to set WQS in the Northern 

Tribes’ trust lands and that MICSA also 

ratifies provisions of MIA that provide 

the state with such authority in the 

Southern Tribes’ territories. That 

decision provided a detailed 

explanation of the legal basis for the 

state’s jurisdiction to set WQS in waters 

in Indian lands in Maine. Because of the 

unique jurisdictional formula Congress 

ratified in the settlement acts, EPA is in 

the unusual position of reviewing state 

WQS in waters in Indian lands.3

Having disapproved certain state 

WQS longer than ninety days ago, as 

explained in section II.B., EPA is 

required by the CWA to promptly 

propose and then promulgate federal 

standards unless, in the meantime, the 

state adopts and EPA approves state 

replacement WQS that address EPA’s 

disapproval. 

B. EPA’s Disapprovals of Portions of 

Maine Water Quality Standards 

On February 2, March 16, and June 5, 

2015, EPA disapproved a number of 

Maine’s new and revised WQS. These 

disapproval letters are available in the 

docket for this rulemaking. These 

decisions were prompted by an on-going 

lawsuit initiated by Maine against EPA. 

As discussed further below, some of the 

disapprovals applied only to waters in 

Indian lands in Maine, while others 

applied to waters throughout the state or 

to waters in the state outside of Indian 

lands.4 EPA concluded that the 

disapproved WQS did not adequately 

protect designated uses related to the 

protection of human health and/or 

aquatic life. EPA requested that the state 

revise its WQS to address the issues 

identified in the disapprovals. The 

statutory 90-day timeframe provided to 

the state to revise its WQS has passed 

with respect to all of the disapproved 

WQS. The state has filed an amended 

complaint as part of an ongoing lawsuit 

challenging EPA’s February 2, 2015 

disapprovals. Discussed below are those 

disapprovals for which EPA today 

proposes new and revised WQS.5

1. Disapprovals That Apply Only to 

Waters in Indian Lands in Maine 

In its February 2015 decision, EPA 

concluded that MICSA granted the state 

authority to set WQS in waters in Indian 

lands. EPA also concluded that in 

assessing whether the state’s WQS were 

approvable for waters in Indian lands, 

EPA must effectuate the CWA 

requirement that WQS must protect 

applicable designated uses and be based 

on sound science in consideration of the 

fundamental purpose for which land 

was set aside for the tribes under the 

Indian settlement acts in Maine. EPA 

found that those settlement acts, which 

include MICSA and other state and 

federal statutes that resolved Indian 


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6Because EPA had never previously acted on any 

Maine WQS for waters in Indian lands, they 

remained ‘‘new or revised’’ WQS as to those waters, 

even though EPA had approved many of them for 

other state waters. They were therefore subject to 

EPA review and approval or disapproval pursuant 

to CWA section 303(c). 

7EPA proposes a separate phenol criterion for 

water plus organisms for the waters in Indian lands. 

8EPA has included in the docket for this 

rulemaking a Technical Support Document, entitled 

‘‘Scope of Waters,’’ which provides further 

information regarding, for purposes of this 

proposed rulemaking, the waters that are included 

in the term ‘‘waters in Indian lands’’ and the waters 

where the designated use of sustenance fishing 

applies. 

land claims in the state, provide for land 

to be set aside as a permanent land base 

for the Indian tribes in Maine, in order 

for the tribes to be able to continue their 

unique cultures, including the ability to 

exercise sustenance fishing practices. 

Accordingly, EPA interprets the state’s 

‘‘fishing’’ designated use, as applied to 

waters in Indian lands, to mean 

‘‘sustenance fishing’’ and approved it as 

such; and EPA approved a specific 

sustenance fishing right reserved in one 

of the settlement acts as a designated 

use for certain tribal reservation waters. 

Against this backdrop, EPA approved or 

disapproved all of Maine’s WQS as 

applied to waters in Indian lands after 

evaluating whether they satisfied CWA 

requirements as informed by the 

settlement acts.6 EPA’s disapprovals of 

WQS for waters in Indian lands in 

Maine were based on two distinct 

rationales, depending on the WQS. 

First, EPA disapproved Maine’s HHC 

for toxic pollutants based on EPA’s 

conclusion that they do not adequately 

protect the health of tribal sustenance 

fishers in waters in Indian lands, 

because they are not based on the higher 

fish consumption rates that reflect the 

tribes’ sustenance fishing practices, and, 

in the case of one HHC, because the 

cancer risk level was not adequately 

protective of the sustenance fishing use. 

These disapprovals, discussed in EPA’s 

February and March decisions, are 

specifically related to unique aspects of 

the tribes’ use of waters in Indian lands. 

EPA proposes to promulgate WQS 

related to the HHC disapprovals as 

explained in section IV.A. 

Second, EPA, in its March and June 

decisions, disapproved a number of 

WQS as applied to waters in Indian 

lands because those standards, although 

approved for other waters in Maine 

many years ago, no longer satisfy CWA 

requirements (i.e., they do not protect 

designated uses and/or are not based on 

sound scientific rationale). EPA 

proposes to promulgate six WQS related 

to those disapprovals, which include: 

(1) Narrative and numeric bacteria 

criteria for the protection of primary 

contact recreation and shellfishing; (2) 

ammonia criteria for protection of 

aquatic life in fresh waters; (3) a 

statutory exception for naturally 

occurring toxic substances from the 

requirement to regulate toxic substances 

at the levels recommended by EPA, as 

it applies to HHC, and a natural 

conditions clause, as it applies to HHC; 

(4) the mixing zone policy; (5) the pH 

criterion for fresh waters; and (6) tidal 

temperature criteria. Because EPA had 

previously approved these provisions 

for other waters in Maine, the 

disapprovals and corresponding 

proposed WQS apply to only waters in 

Indian lands. 

2. Disapprovals That Apply to All 

Waters in Maine, Including Waters in 

Indian Lands 

In its March and June 2015 decisions, 

EPA disapproved a number of new and 

revised WQS as applied to all waters 

throughout Maine, including waters in 

Indian lands. These are WQS that EPA 

had not previously acted upon for any 

waters. EPA proposes two WQS for all 

waters in Maine related to the 

disapprovals of (1) a statute allowing the 

waiver or modification of protection and 

improvement laws, as it pertains to 

WQS; and (2) the numeric criteria for 

dissolved oxygen in Class A waters. 

EPA proposes one WQS for waters in 

Maine outside of Indian lands related to 

the disapproval of the phenol criterion 

for water plus organisms.7

C. Scope of Waters 

To address the disapprovals discussed 

in section II.B.1, EPA proposes HHC for 

toxic pollutants as well as six other 

WQS that apply only to waters in Indian 

lands. For the purpose of this 

rulemaking, ‘‘waters in Indian lands’’ 

are those waters in the tribes’ 

reservations and trust lands as provided 

for in the settlement acts. 

In addition, as described below in 

section III, EPA proposes the same HHC 

for toxic pollutants pursuant to a 

determination of necessity under CWA 

303(c)(4)(B) for the following waters: (1) 

Waters in Indian lands in the event that 

a court determines that EPA’s 

disapprovals of HHC for such waters 

were unauthorized and that Maine’s 

existing HHC are in effect; and (2) 

waters where there is a sustenance 

fishing designated use outside of waters 

in Indian lands.8

D. Applicability of EPA Promulgated 

Water Quality Standards When Final 

Once finalized, EPA’s water quality 

standards would apply to the relevant 

waters for CWA purposes. Although 

EPA proposes WQS to address the 

standards that it disapproved or for 

which it has made a determination, 

Maine continues to have the option to 

adopt and submit to EPA new or revised 

WQS that remedy the issues identified 

in the disapprovals and determination, 

consistent with CWA section 303(c) and 

EPA’s implementing regulations at 40 

CFR part 131. EPA encourages Maine to 

expeditiously adopt protective WQS 

that address the changes EPA identified 

in its disapprovals and determination, 

discussed in section III, as being 

necessary to meet CWA requirements. 

Consistent with CWA section 303(c)(4), 

if Maine adopts and submits new or 

revised WQS and EPA approves them 

before finalizing this proposed rule, 

EPA would not proceed with the final 

rulemaking for those waters and/or 

pollutants for which EPA approves 

Maine’s new or revised standards. 

If EPA finalizes this proposed rule, 

and Maine subsequently adopts and 

submits new or revised WQS that EPA 

finds meet CWA requirements, EPA 

proposes that once EPA approves 

Maine’s WQS, they would become 

effective for CWA purposes, and EPA’s 

corresponding promulgated WQS would 

no longer apply. EPA would still 

undertake a rulemaking to withdraw the 

federal WQS for those pollutants, but 

any delay in that process would not 

delay Maine’s approved WQS from 

becoming the sole applicable WQS for 

CWA purposes. EPA solicits comment 

on this approach. 

III. CWA 303(c)(4)(B) Determination of 

Necessity for HHC That Protect 

Sustenance Fishing 

Per EPA’s regulations at 40 CFR 

131.11(a), water quality criteria must be 

sufficient to protect the designated uses. 

As discussed in section II.A.2. and in 

EPA’s February 2015 disapproval, the 

settlement acts reflect Congress’s intent 

that the tribes in Maine must be able to 

engage in sustenance fishing to preserve 

their culture and lifeways. In waters 

where the settlement acts provide for 

the tribes to engage in sustenance 

fishing, EPA interprets Maine’s 

designated use of ‘‘fishing’’ to include 

sustenance fishing, and EPA has further 

approved section 6207(4) and (9) of MIA 

as the establishment of a sustenance 

fishing designated use for fresh waters 

in the Southern Tribes’ reservations. 

For the reasons discussed in EPA’s 

February and March 2015 disapproval 

decisions and summarized below in 

section IV.A.1.b., most of Maine’s HHC 

for toxic pollutants are not adequate to 

protect the sustenance fishing 

designated use because they are based 

on a fish consumption rate that does not 


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9 In its February 2015 Decision, EPA concluded 

that section 6207(4) and (9) of MIA constituted a 

new or revised water quality standard and approved 

the provision as a designated use of sustenance 

fishing applicable to all inland waters of the 

Southern Tribes’ reservations in which populations 

of fish are or may be found. Accordingly, EPA’s 

approval of MIA section 6207(4) and (9) as a 

designated use of sustenance fishing applies to all 

waters where the Southern Tribes have a right to 

sustenance fish, irrespective of whether such waters 

are determined to be outside of the scope of their 

reservation for purposes other than sustenance 

fishing. 

10USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. http://www.epa.gov/waterscience/

criteria/humanhealth/method/complete.pdf. 

11Final Updated Ambient Water Quality Criteria 

for the Protection of Human Health, 80 FR 36986 

(June 29, 2015). See also: USEPA. 2015. Final 2015 

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. http://

water.epa.gov/scitech/swguidance/standards/

criteria/current/hhfinal.cfm. 

reflect the tribes’ unsuppressed 

sustenance fishing level of 

consumption. 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. EPA therefore 

proposes HHC for such waters in this 

rule in accordance with this section 

303(c)(4)(B) determination. The specific 

HHC to which this determination and 

corresponding proposal apply are set 

forth in Table 3. This determination also 

applies to Maine’s HHC for arsenic 

(including, specifically, Maine’s cancer 

risk level of 10–4 for arsenic), thallium, 

and dioxin. As discussed in section 

IV.A.1.c., EPA is reserving its proposal 

for criteria for these three HHC until a 

later date, pending the outcome of 

additional scientific assessments. 

This determination applies to two 

groups of waters in Maine: 

1. Any waters in Indian lands in 

Maine for which a court in the future 

determines that EPA’s 2015 

disapprovals of HHC for such waters 

were unauthorized and that Maine’s 

existing HHC are in effect. Maine has 

challenged EPA’s disapprovals in 

federal district court, asserting that EPA 

did not have the authority to disapprove 

the HHC in waters in Indian lands. 

While EPA’s position is that the 

disapprovals were authorized and 

Maine’s existing HHC are not in effect, 

this determination ensures that EPA has 

the authority to promulgate the 

proposed HHC, and that the tribes’ 

sustenance fishing use would be 

protected, even if Maine’s challenge to 

EPA’s disapproval authority were to 

prevail. 

2. Any water in Maine where 

sustenance fishing is a designated use 

but such water is determined not to be 

a ‘‘water in Indian lands.’’ 9 EPA notes 

that there may be one or more waters 

where the sustenance fishing designated 

use based on MIA section 6207(4) and 

(9) extends beyond ‘‘waters in Indian 

lands.’’ See ‘‘Scope of Waters’’ 

Technical Support Document in the 

docket for this rulemaking. This 

determination and corresponding 

rulemaking apply to any water to which 

the sustenance fishing designated use 

based on MIA section 6207(4) and (9) 

applies that is beyond the scope of 

‘‘waters in Indian lands.’’ 

EPA’s determination is not itself a 

final action, nor part of a final action, at 

this time. After consideration of 

comments on the proposed rule, EPA 

will take final agency action on this 

rulemaking. It is at that time that any 

challenge to the determination and/or 

water quality standards applicable to 

Maine based on such determination may 

occur. 

IV. Proposed Water Quality Standards 

A. Proposed WQS for Waters in Indian 

Lands in Maine and for Waters Outside 

of Indian Lands in Maine Where the 

Sustenance Fishing Designated Use 

Established by 30 M.R.S. 6207(4) and (9) 

Applies 

1. Human Health Criteria for Toxic 

Pollutants 

a. General Recommended Approach 

for Deriving HHC. HHC for toxic 

pollutants are designed to minimize the 

risk of adverse cancer and non-cancer 

effects occurring from lifetime exposure 

to pollutants through the ingestion of 

drinking water and consumption of fish/ 

shellfish obtained from inland and 

nearshore waters. EPA’s practice is to 

establish 304(a) HHC for the combined 

activities of drinking water and 

consuming fish/shellfish obtained from 

inland and nearshore waters, and 

separate HHC for consuming only fish/ 

shellfish originating from inland and 

nearshore waters. The latter criteria 

apply in cases where the designated 

uses of a waterbody include supporting 

fish/shellfish for human consumption 

but not drinking water supply sources 

(e.g., in non-potable estuarine waters). 

The criteria are based on two types of 

biological endpoints: (1) Carcinogenicity 

and (2) systemic toxicity (i.e., all 

adverse effects other than cancer). EPA 

takes an integrated approach and 

considers both cancer and non-cancer 

effects when deriving HHC. Where 

sufficient data are available, EPA 

derives criteria using both carcinogenic 

and non-carcinogenic toxicity endpoints 

and recommends the lower value. HHC 

for carcinogenic effects are typically 

calculated using the following input 

parameters: cancer slope factor, excess 

lifetime cancer risk level, body weight, 

drinking water intake rate, fish 

consumption rate(s), and 

bioaccumulation factor(s). HHC for noncarcinogenic and nonlinear carcinogenic 

effects are typically calculated using 

reference dose, relative source 

contribution (RSC), body weight, 

drinking water intake rate, fish 

consumption rate(s) and 

bioaccumulation factor(s). Each of these 

inputs is discussed in more detail 

below, in EPA’s 2000 Human Health 

Methodology (the ‘‘2000 

Methodology’’),10 and in the 2015 

criteria update.11

i. Cancer Risk Level. For cancercausing pollutants where the 

carcinogenic effects have a linear 

relationship to exposure, EPA’s 304(a) 

HHC generally assume that 

carcinogenicity is a ‘‘non-threshold 

phenomenon,’’ which means that there 

are no ‘‘safe’’ or ‘‘no-effect’’ levels of 

exposure because even extremely low 

levels of exposure to most known and 

suspect carcinogenic compounds are 

assumed to cause a finite increase in the 

risk of developing cancer over the 

course of a lifetime. As a matter of 

policy, EPA calculates its 304(a) HHC at 

concentrations corresponding to a 10¥6

cancer risk level (CRL), meaning that if 

exposure were to occur as set forth in 

the 304(a) methodology at the 

prescribed concentration over the 

course of one’s lifetime, then the risk of 

developing cancer from the exposure as 

described would be one in a million on 

top of the background risk of developing 

cancer from all other exposures. EPA 

recommends cancer risk levels of 10¥6

(one in a million) or 10¥5 (one in one 

hundred thousand) for the general 

population and notes that states and 

authorized tribes can also choose a more 

protective risk level, such as 10¥7 (one 

in ten million), when deriving HHC. 

ii. Cancer Slope Factor and Reference 

Dose. For noncarcinogenic toxicological 

effects, EPA uses a chronic-duration oral 

reference dose (RfD) to derive HHC. An 

RfD is an estimate (with uncertainty 

spanning perhaps an order of 

magnitude) of a daily oral exposure of 

the human population to a substance 

that is likely to be without an 

appreciable risk of deleterious effects 

during a lifetime. An RfD is typically 

derived from a laboratory animal dosing 

study in which a no-observed-adverseVerDate Sep<11>2014 14:51 Apr 19, 2016 Jkt 238001 PO 00000 Frm 00056 Fmt 4702 Sfmt 4702 E:\FR\FM\20APP1.SGM 20APP1

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12USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. 

13USEPA. 2011. EPA Exposure Factors 

Handbook. United States Environmental Protection 

Agency. Washington, DC EPA 600/R–090/052F. 

http://cfpub.epa.gov/ncea/risk/recordisplay.cfm?

deid=236252. 

14USEPA. 2014. Estimated Fish Consumption 

Rates for the U.S. Population and Selected 

Subpopulations (NHANES 2003–2010). United 

States Environmental Protection Agency, 

Washington, DC, USA. EPA 820–R–14–002. 

15USEPA. 2011. EPA Exposure Factors 

Handbook. United States Environmental Protection 

Agency. Washington, DC EPA 600/R–090/052F. 

http://cfpub.epa.gov/ncea/risk/recordisplay.cfm?

deid=236252. 

16USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. http://www.epa.gov/waterscience/

criteria/humanhealth/method/complete.pdf. 

17USEPA. January 2013. Human Health Ambient 

Water Quality Criteria and Fish Consumption Rates: 

Frequently Asked Questions. http://water.epa.gov/

scitech/swguidance/standards/criteria/health/

methodology/upload/hhfaqs.pdf. 

18USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. 

19USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. 

20USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. http://www.epa.gov/waterscience/

criteria/humanhealth/method/complete.pdf. 

21 In addition, for certain waters in the Southern 

Tribes’ reservations, EPA also approved a 

sustenance fishing designated use specified in MIA. 

effect level (NOAEL), lowest-observedadverse-effect level (LOAEL), or 

benchmark dose can be obtained. 

Uncertainty factors are applied to reflect 

the limitations of the data.12 For 

carcinogenic toxicological effects, EPA 

uses an oral cancer slope factor (CSF) to 

derive HHC. The oral CSF is an upper 

bound, approximating a 95% 

confidence limit, on the increased 

cancer risk from a lifetime oral exposure 

to a stressor. 

iii. Exposure Assumptions. In EPA’s 

2015 criteria update, EPA used a default 

drinking water intake rate of 2.4 liters 

per day (L/day) and a default rate of 

22.0 g/day for total consumption of fish 

and shellfish from inland and nearshore 

waters. Additionally, pollutant-specific 

bioaccumulation factors (BAFs) or 

bioconcentration factors (BCFs) were 

used to relate aqueous pollutant 

concentrations to predicted pollutant 

concentrations in the edible portions of 

ingested species. 

EPA’s national default drinking water 

intake rate of 2.4 L/day represents the 

per capita estimate of combined direct 

and indirect community water ingestion 

at the 90th percentile for adults ages 21 

and older.13 EPA’s national default FCR 

of 22.0 g/day represents the 90th 

percentile consumption rate of fish and 

shellfish from inland and nearshore 

waters for the U.S. adult population 21 

years of age and older, based on 

National Health and Nutrient 

Examination Survey (NHANES) data 

from 2003 to 2010.14 EPA calculates 

HHC using a default body weight of 80.0 

kilograms (kg), the average weight of a 

U.S. adult age 21 and older, based on 

NHANES data from 1999 to 2006.15

Although EPA uses these default 

values to calculate national 304(a) HHC, 

EPA’s 2000 Methodology notes a 

preference for the use of local data to 

calculate HHC (e.g., locally derived 

FCRs, drinking water intake rates and 

body weights, and waterbody-specific 

bioaccumulation rates) over national 

default values, where data are sufficient 

to do so.16 EPA also generally 

recommends, where sufficient data are 

available, selecting a FCR that reflects 

consumption that is not suppressed by 

concerns about the safety of available 

fish 17 or fish availability. Deriving HHC 

using an unsuppressed FCR furthers the 

restoration goals of the CWA, and 

ensures protection of human health as 

pollutant levels decrease, fish habitats 

are restored, and fish availability 

increases. While EPA encourages doing 

so in general, where sustenance fishing 

is a designated use of the waters (due to, 

for example, tribal treaty or other federal 

law that provides for a tribe to fish for 

its sustenance), in EPA’s scientific and 

policy judgment, selecting a FCR that 

reasonably represents current 

unsuppressed fish consumption based 

on the best currently available 

information is necessary and 

appropriate to ensure that such 

sustenance fishing use is protected. 

Such FCR must consider suppression 

and where adequate data are available to 

clearly demonstrate what that value is 

for the relevant population, the FCR 

must reflect that value. If sufficient data 

regarding unsuppressed fish 

consumption levels are not readily 

available, consultation with tribes is 

important to ensure that all data and 

information relevant to this issue are 

considered. 

iv. Relative Source Contribution. 

EPA’s 2000 Methodology describes 

different approaches for addressing 

water and non-water exposure pathways 

to derive human health criteria 

depending on the toxicological endpoint 

of concern, the toxicological effect 

(noncarcinogenic or carcinogenic), and 

whether toxicity is considered a linear 

or threshold effect. Water sources of 

exposure include both consuming 

drinking water and eating fish or 

shellfish from inland and nearshore 

waters that have been exposed to 

pollutants in the water body. For 

pollutants that exhibit a threshold of 

exposure before deleterious effects 

occur, as is the case for noncarcinogens 

and nonlinear carcinogens, EPA applies 

a relative source contribution (RSC) to 

account for other potential human 

exposures to the pollutant.18 Other 

sources of exposure might include, but 

are not limited to, exposure to a 

particular pollutant from ocean fish or 

shellfish consumption (which is not 

included in the FCR), non-fish food 

consumption (e.g., consumption of 

fruits, vegetables, grains, meats, or 

poultry), dermal exposure, and 

inhalation exposure. 

For substances for which the toxicity 

endpoint is carcinogenicity based on a 

linear low-dose extrapolation, only the 

exposures from drinking water and fish 

ingestion are reflected in HHC; that is, 

non-water sources are not explicitly 

included and no RSC is applied.19 In 

these situations, HHC are derived with 

respect to the incremental lifetime 

cancer risk posed by the presence of a 

substance in water, rather than an 

individual’s total risk from all sources of 

exposure. EPA derived a RSC (ranging 

from 0.2 to 0.8) for each chemical 

included in the 2015 criteria update, by 

using the Exposure Decision Tree 

approach described in the 2000 

Methodology.20

b. What did EPA disapprove? On 

February 2, 2015 and March 12, 2015, 

EPA disapproved Maine’s HHC for toxic 

pollutants for waters in Indian lands 

because EPA found that they did not 

meet CWA requirements, i.e., they were 

not adequate to protect the designated 

use of sustenance fishing in those 

waters. EPA reached this conclusion by 

applying the CWA’s requirements that 

water quality criteria protect designated 

uses and be based on a sound scientific 

rationale, in consideration of the 

purpose of the settlement acts discussed 

above to preserve the tribes’ culture and 

sustenance practices. EPA determined 

that in order to protect the function of 

the waters in Indian lands to preserve 

the tribes’ unique culture and to provide 

for the safe exercise of their sustenance 

practices, EPA must interpret Maine’s 

designated use of ‘‘fishing’’ to include 

sustenance fishing.21


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22Maine’s FCR for all toxic HHC except arsenic 

is 32.4 g/day, and for arsenic is 138 g/day. 

23http://cfpub.epa.gov/ncea/iris/index.cfm

?fuseaction=iris.showQuickView&substance_nmbr=

1012. 

24http://cfpub.epa.gov/ncea/iris/index.cfm

?fuseaction=iris.showQuickView&substance_

nmbr=1024. 

25Federal Register Vol. 65, No. 97, Thursday, 

May 18, 2000, Rules and Regulations. 

26After further consideration, by letter of January 

19, 2016, EPA withdrew its February 2, 2015 

disapprovals of Maine’s HHC for six pollutants 

(copper, asbestos, barium, iron, manganese and 

nitrates) and instead approved them. EPA 

concluded that those criteria were not calculated 

using a fish consumption rate, and therefore the 

basis for EPA’s disapprovals of the HHC in the 

February 2, 2015 decision letter did not apply. EPA 

approved them as being consistent with EPA’s 

recommended 304(a) criteria. In addition, EPA has 

withdrawn its February 2, 2015 disapprovals of 

Maine’s HHC for the following HHC and instead 

approved them: (1) For the consumption of water 

plus organisms for 1,2-dichloropropane, 1,4- 

dichlorobenzene, dichlorobromomethane, 

chlorodibromomethane, chrysene, methylene 

chloride, chlorophenoxy herbicide (2, 4, 5–TP), 

chlorophenoxy herbicide (2,4–D), and Nnitrosopyrrolidine; (2) for the consumption of 

organisms alone for acrolein and gamma-BHC 

(Lindane); and (3) for both the consumption of 

water plus organisms and for the consumption of 

organisms alone for 1,2-dichloroethane, 

acrylonitrile, benzidine, bis(chloromethyl) ether, 

chloroform, methyl bromide, and 

tetrachloroethylene. EPA calculated the HHC for 

these pollutants using the best science reflected in 

the 2015 criteria updates (which were finalized 

after the disapprovals), along with a FCR of 286 to 

protect the sustenance fishing use, and concluded 

that the resulting HHC were either the same or less 

stringent than Maine’s HHC that EPA had 

disapproved. Accordingly, EPA withdrew the 

disapprovals and approved these HHC based on 

their being adequate to protect the sustenance 

fishing use. 

27EPA recognizes that the general public has the 

right to access some tribal waters and to fish there 

subject to conditions that do not discriminate 

between tribal members and non-members. See 

MIA § 6207(1). 

EPA’s analysis of the settlement acts 

also led EPA to consider the tribes to be 

the general target population in their 

waters. Accordingly, EPA applied the 

2000 Methodology’s recommendations 

on exposure and cancer risk for the 

general target population in its 

evaluation of whether Maine’s HHC 

protect the sustenance fishing use in 

waters in Indian lands. In other words, 

EPA considered whether the FCR 

reflected, as accurately as possible, the 

tribes’ sustenance level FCR, and 

whether the CRL was protective of the 

sustenance fishers as a general 

population rather than as a highly 

exposed subpopulation. As explained in 

the February 2, 2015 disapproval 

decision, EPA concluded that the FCRs 

on which Maine’s HHC are based 22 do 

not result in criteria that ensure 

protection of the sustenance designated 

use for waters in Indian lands. This is 

because Maine’s FCRs do not reflect the 

best available information regarding the 

tribes’ sustenance level of consumption 

unsuppressed by pollutant concerns, 

which EPA determined in its scientific 

and policy judgment was necessary and 

appropriate in developing criteria to 

protect the sustenance fishing 

designated use of waters in Indian lands 

as required by the CWA. EPA also 

concluded, as explained in the March 

16, 2015 decision, that Maine’s 10¥4

CRL for arsenic does not adequately 

protect the general target population of 

tribal sustenance fishers in waters in 

Indian lands. (EPA approved a separate 

provision in Maine’s regulations that 

requires that HHC be based on a CRL of 

10¥6, finding that it is consistent with 

EPA’s 2000 Methodology and 

adequately protects tribal sustenance 

fishers as a general target population.) 

c. Criteria for Which EPA is Reserving 

Action. Although EPA disapproved 

Maine’s criteria for arsenic, dioxin, and 

thallium for waters in Indian lands, 

there is some uncertainty regarding 

aspects of the science upon which 

EPA’s 304(a) HHC are based such that 

EPA is deferring proposal of these 

criteria at this time. EPA did not update 

the 304(a) HHC for these three 

pollutants in 2015. For thallium, EPA’s 

IRIS database does not currently contain 

a quantitative RfD assessment.23 For 

dioxin, IRIS does not currently contain 

a quantitative carcinogenicity 

assessment.24

While EPA disapproved Maine’s 

arsenic criteria for waters in Indian 

lands because the cancer risk level and 

fish consumption rate together did not 

provide a sufficient level of protection 

of the sustenance fishing use, EPA 

recognizes that there is substantial 

uncertainty surrounding the 

toxicological assessment of arsenic with 

respect to human health effects. EPA’s 

current plan for addressing these issues 

is described in the Assessment 

Development Plan for the Integrated 

Risk Information System (IRIS) 

Toxicological Review of Inorganic 

Arsenic (EPA/630/R–14/101 November 

2015). During a similar period of 

uncertainty surrounding the 

toxicological assessment of arsenic in 

2000, EPA similarly did not promulgate 

arsenic HHC for the State of 

California.25

Without specific numeric criteria in 

place for arsenic, thallium, and dioxin 

in waters in Indian lands, Maine is in 

a position to rely on the latest science 

and policy as it becomes available to 

interpret the existing narrative water 

quality criteria for waters in Indian 

lands. For example, permitting 

authorities in Maine should rely on 

existing narrative water quality criteria 

to establish effluent limitations as 

necessary for arsenic, thallium, and 

dioxin. Federal regulations at 40 CFR 

122.44(d)(1)(vi) describe options 

available to the state for this purpose. 

Unless Maine submits and EPA 

approves these criteria, EPA plans to 

propose criteria for thallium, dioxin, 

and arsenic for waters in Indian lands 

and any waters that are covered by the 

determination set forth in section III 

once it has updated the 304(a) HHC. 

d. What is EPA Proposing? EPA 

proposes HHC for 96 26 of the toxic 

pollutants applicable to waters in Indian 

lands that EPA disapproved. Table 3 

provides the criteria proposed for each 

pollutant as well as the HHC inputs 

used to derive each one, as discussed 

below. These proposed criteria also 

apply to any waters that are covered by 

the determination set forth in section III. 

i. Maine-Specific HHC Inputs—1. Fish 

Consumption Rate. In EPA’s February 2, 

2015 decision and in this proposal, EPA 

treats the tribes as the target general 

population for waters in Indian lands. 

EPA proposes this approach because 

EPA has determined that sustenance 

fishing is the applicable designated use 

for waters in Indian lands based on 

EPA’s interpretation of Maine’s 

designated use of ‘‘fishing,’’ and, for 

fresh waters in the Southern Tribes’ 

reservations, also based on EPA’s 

approval of section 6207(4) and (9) of 

MIA as a sustenance fishing designated 

use. Therefore, the criteria must protect 

that use. As discussed at length in EPA’s 

February 2015 decision on Maine’s 

WQS, these Indian lands and their 

associated waters have been specifically 

set aside for the Maine tribes to exercise 

their sustenance practices. These waters 

are at the core of the resource base 

provided for under the settlement acts 

to support these tribes as sustenance 

cultures.27 Having found that 

sustenance fishing is a designated use in 

the waters in Indian lands, it is 

reasonable for EPA to target tribal 

sustenance fishers as the general 

population for the purpose of 

establishing criteria to protect that use. 

The same analysis applies to waters 

outside of Indian lands where the 

sustenance fishing designated use 

applies. 

EPA derived the HHC to protect the 

sustenance fishing use based on a total 

fish consumption rate (FCR) of 286 g/

day. EPA selected this consumption rate 

based on information contained in an 

historical/anthropological study, 

entitled the Wabanaki Cultural Lifeways 


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28Harper, B., Ranco, D., et al. 2009. Wabanaki 

Traditional Cultural Lifeways Exposure Scenario. 

http://www.epa.gov/sites/production/files/2015-08/

documents/ditca.pdf. 

29 Id., pp. 61–66. 

30 Includes marine mammals for coastal lifestyle 

model only. 

Exposure Scenario 28 (‘‘Wabanaki 

Study’’), which was completed in 2009. 

EPA also consulted with the tribes in 

Maine about the Wabanaki Study and 

their sustenance fishing uses of the 

waters in Indian lands. There has been 

no contemporary local survey of current 

fish consumption, adjusted to account 

for suppression, that documents fish 

consumption rates for sustenance 

fishing in the waters in Indian lands in 

Maine. In the absence of such 

information, EPA concluded that the 

Wabanaki Study contains the best 

currently available information for the 

purpose of deriving an unsuppressed 

FCR for HHC adequate to protect 

sustenance fishing for such waters. 

The peer-reviewed Wabanaki Study 

was produced under a Direct 

Implementation Tribal Cooperative 

Agreement (DITCA) awarded by EPA to 

the Aroostook Band of Micmac Indians 

on behalf of all of the Maine tribes. The 

purpose of the Study was to use 

available anthropological and ecological 

data to develop a description of Maine 

tribes’ traditional cultural uses of 

natural resources, and to present the 

information in a format that could be 

used by EPA to evaluate whether or not 

tribal uses are protected when EPA 

reviews or develops WQS in Indian 

lands in Maine. It is relevant to 

contemporary water quality because 

another purpose of the Study ‘‘is to 

describe the lifestyle that was universal 

when resources were in better condition 

and that some tribal members practice 

today (and many more that are waiting 

to resume once restoration goals and 

protective standards are in place).’’ It 

provides a numerical representation of 

the environmental contact, diet, and 

exposure pathways of the traditional 

tribal lifestyle, including the use of 

water resources for food, medicine, 

cultural and traditional practices, and 

recreation. The report used 

anthropological and ecological data to 

identify major activities that contribute 

to environmental exposure and then to 

develop exposure factors related to 

traditional diet, drinking water, soil and 

sediment ingestion, inhalation rate and 

dermal exposure. Credible ethnohistorical, ecological, nutritional, 

archaeological, and biomedical 

literature was reviewed through the lens 

of natural resource use and activities 

necessary to survive in the Maine 

environment and support tribal 

traditions. Along with single, best 

professional judgment estimates for 

direct exposures (inhalation, soil 

ingestion, water ingestion) as a 

reasonable representation (central 

tendency) of the traditional cultural 

lifeways, the Wabanaki Study provides 

an estimated range of diets that reflect 

three major habitat types. 

In developing the dietary component 

of the exposure scenario, the Wabanaki 

Study authors assembled information 

about general foraging, seasonal 

patterns, dietary breadth, abundance, 

and food storage. From these they 

evaluated the relative proportion of 

major food groups, including fish, as 

well as nutritional information, total 

calories and quantities of foods. This 

resulted in an estimate of a nutritionally 

complete diet for the area east of the 

Kennebec River, which is the area most 

heavily used by tribal members today 

and where farming is marginal due to 

climate. With regard to the consumption 

of fish, the Wabanaki Study identifies 

three traditional lifestyle models, each 

with its own diet: 

1. Permanent inland residence on a 

river with anadromous fish runs 

(‘‘inland anadromous’’), 

2. Permanent inland residence with 

resident fish only (‘‘inland nonanadromous’’), and 

3. Permanent coastal residence 

(‘‘coastal’’). 

The study provides estimates of 

average adult consumption of aquatic 

resources, game, fowl, and plant-based 

foods for each lifestyle model based on 

a 2,000 kcal/day diet. Aquatic resources 

were divided into two categories: 

‘‘resident fish and other aquatic 

resources’’ and ‘‘anadromous and 

marine fish and shellfish.’’ Table 2 

summarizes the consumption of aquatic 

resources for each lifestyle model. 

TABLE 2—CONSUMPTION OF AQUATIC RESOURCES BY LIFESTYLE MODEL 29

Lifestyle model 

Resident fish 

& other 

aquatic 

resources 

(g/day) 

Anadromous & 

marine fish, 

shellfish 

(g/day) 30

Total 

Inland Anadromous ...................................................................................................................... 114 400 514 

Inland Non-anadromous .............................................................................................................. 286 0 286 

Coastal ......................................................................................................................................... 57 457 514 

The Wabanaki Study provides a range 

of consumption rates specifically for 

Maine Indians using natural resources 

for sustenance living and reduces the 

uncertainties associated with a lack of 

knowledge about tribal exposure in 

Maine Indian waters. 

In addition to evaluating the 

Wabanaki Study, EPA consulted with 

the four Maine tribes to gather 

additional information about current 

practices, present day circumstances 

related to the species composition of 

available fish, and any other 

information that the tribes thought was 

relevant to EPA’s decision making. EPA 

also considered the Penobscot Nation’s 

use of a FCR of 286 g/day in developing 

HHC in its 2014 tribal WQS. In its 

September 23, 2014 responses to 

comments on the final WQS, the Nation 

explained that it chose the inland nonanadromous total FCR of 286 g/day 

because, although the Penobscot lands 

are in areas that would have historically 

supported an inland anadromous diet 

(with a total FCR of 514 g/day), the 

contemporary populations of 

anadromous species in Penobscot 

waters are currently too low to be 

harvested in significant quantities. The 

Nation’s representative reiterated this 

rationale in the September 9, 2015 tribal 

consultation with EPA. The 

representative of the Aroostook Band of 

Micmacs also stated during the 

consultation that the Wabanki Study’s 

inland non-anadromous lifestyle diet 

reflects the current Micmac diet, 

although the tribe has a goal of the 

return and consumption of anadromous 

fish. 

EPA proposes to use a FCR of 286 g/ 

day to represent present day sustenancelevel fish consumption, unsuppressed 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules 23247 

31USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. http://www.epa.gov/waterscience/

criteria/humanhealth/method/complete.pdf. 

32USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. US Environmental Protection 

Agency. pp. 2–6. 

33Final Updated Ambient Water Quality Criteria 

for the Protection of Human Health, (80 FR 36986, 

June 29, 2015). See also: USEPA. 2015. Final 2015 

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. http://

water.epa.gov/scitech/swguidance/standards/

criteria/current/hhfinal.cfm. 

34USEPA. 2000. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health. U.S. Environmental Protection 

Agency, Office of Water, Washington, DC. EPA– 

822–B–00–004. http://www.epa.gov/waterscience/

criteria/humanhealth/method/complete.pdf. 

35Final Updated Ambient Water Quality Criteria 

for the Protection of Human Health, (80 FR 36986, 

June 29, 2015). See also: USEPA. 2015. Final 2015 

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. http://

water.epa.gov/scitech/swguidance/standards/

criteria/current/hhfinal.cfm. 

36USEPA. 2002. National Recommended Water 

Quality Criteria: 2002 Human Health Criteria 

Calculation Matrix. EPA–822–R–02–012. U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. http://water.epa.gov/scitech/

swguidance/standards/upload/2002_12_30_

criteria_wqctable_hh_calc_matrix.pdf. 

37Final Updated Ambient Water Quality Criteria 

for the Protection of Human Health, (80 FR 36986, 

June 29, 2015). See also: USEPA. 2015. Final 2015 

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. http://

water.epa.gov/scitech/swguidance/standards/

criteria/current/hhfinal.cfm. 

38Final Updated Ambient Water Quality Criteria 

for the Protection of Human Health, (80 FR 36986, 

June 29, 2015). See also: USEPA. 2015. Final 2015 

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. http://

water.epa.gov/scitech/swguidance/standards/

criteria/current/hhfinal.cfm. 

by pollution concerns, in the waters 

covered by this action. This value 

reflects the Wabanaki Study’s 286 g/day 

FCR for the inland non-anadromous 

lifestyle, which relied on resident fish 

species only. For tribes that followed 

the inland anadromous lifestyle, 286 g/ 

day represents all of the resident species 

fish consumption rate (114 g/day) as 

well as approximately 43% of the 400 

g/day consumption rate for anadromous 

and other non-resident species (172 g/

day). For tribes that followed the coastal 

lifestyle, 286 g/day represents all of the 

resident species fish consumption rate 

(57 g/day) as well as approximately 50% 

of the 457 g/day consumption rate for 

anadromous and other non-resident 

species (229 g/day). It is reasonable to 

assume that the inland anadromous and 

coastal lifestyle tribes would have 

shifted a substantial percentage of the 

sustenance fishing diet from the 

formerly widely available but now less 

available anadromous species (such as 

salmon) or protected marine mammals 

to resident fish species, including 

introduced freshwater species, 

corresponding to the FCR for the inland 

non-anadromous lifestyle. That 

assumption is consistent with the 

Penobscot Nation’s approach to deriving 

a current, unsuppressed FCR to protect 

sustenance fishing. 

Since the Wabanaki Study presented 

estimates of the total amount of fish and 

aquatic organisms consumed and not 

the amount consumed of each trophic 

level, for the purpose of developing 

HHC for the Maine tribes, EPA assumes 

that Maine tribes consume the same 

relative proportion of fish and aquatic 

organisms from the different trophic 

levels 2 through 4 as the general U.S. 

population, as identified in the 2015 

criteria update (i.e., 36%, 40%, and 

24% of the total amount consumed for 

trophic levels 2, 3, and 4, respectively). 

Accordingly, EPA proposes to use 

trophic-specific fish consumption rates 

of 103 g/day (trophic level 2), 114 g/day 

(trophic level 3), and 68.6 g/day (trophic 

level 4) for the HHC for those 

compounds which the 2015 criteria 

update included trophic level specific 

BAFs. 

2. Pollutant Bioaccumulation and 

Bioconcentration Factors. In order to 

prevent harmful exposures to 

waterborne chemicals through the 

consumption of contaminated fish and 

shellfish, HHC must address the process 

of chemical bioaccumulation in aquatic 

organisms. For the 2015 criteria update, 

EPA estimated chemical-specific BAFs 

for three different trophic levels of fish 

(levels 2 through 4), using a framework 

for deriving national BAFs described in 

EPA’s 2000 Methodology.31 EPA 

proposes to use those BAFs to calculate 

the proposed HHC. 

Where EPA did not update BAFs for 

certain pollutants in the 2015 criteria 

update, and for cyanide, EPA proposes 

HHC using the BCFs (which are not 

trophic-level specific) that the Agency 

used the last time it updated its 304(a) 

HHC for those pollutants as the best 

available scientific information. 

3. Cancer Risk Level. Maine’s water 

quality regulations, at Maine’s 

Department of Environmental Protection 

(DEP) Rule Chapter 584 section 4, 

specify that water quality criteria for 

carcinogens must be based on a CRL of 

10¥6 (except for a 10¥4 CRL for arsenic, 

which EPA disapproved). On February 

2, 2015, EPA approved the 10¥6 CRL for 

waters in Indian lands, since it is 

consistent with the range of CRLs that 

EPA considers to be appropriate for the 

general population. This is also the risk 

level that EPA uses when publishing its 

304(a) HHC and when promulgating 

federal criteria.32 As explained above, 

EPA considers the tribes to be the 

general target population for waters in 

Indian lands. For these reasons, EPA 

proposes to use a 10¥6 CRL in its 

criteria for carcinogens for waters 

covered by this action. 

4. Relative Source Contribution. EPA 

recommends using a RSC for noncarcinogens and nonlinear carcinogens 

to account for sources of exposure other 

than drinking water and consumption of 

inland and nearshore fish and shellfish 

(see 2015 criteria update, section 

II.B.d).33 In 2015, after evaluating 

information on chemical uses, 

properties, occurrences, releases to the 

environment and regulatory restrictions, 

EPA developed chemical-specific RSCs 

for non-carcinogens and nonlinear 

carcinogens ranging from 0.2 (20%) to 

0.8 (80%) following the Exposure 

Decision Tree approach described in 

EPA’s 2000 Methodology and used them 

in the 2015 criteria updates.34 35 For 

these pollutants, EPA proposes to use 

the same RSCs to derive the HHC. For 

pollutants where EPA did not update 

the 304(a) HHC in 2015, EPA proposes 

to use a default RSC of 0.2 to derive 

HHC following the Exposure Decision 

Tree approach described in EPA’s 2000 

Methodology; a RSC of 0.2 is used as a 

default RSC when EPA has not 

developed a pollutant-specific RSC 

based on exposure/occurrence data. In 

the case of antimony (for which EPA did 

not update the 304(a) HHC in 2015), 

EPA proposes to use an RSC of 0.4 

consistent with the RSC value used the 

last time the Agency updated this 

criterion.36

5. Body Weight. EPA proposes to 

calculate HHC using a body weight of 

80.0 kg, which represents the average 

weight of a U.S. adult. In 2015, EPA 

updated its recommended adult body 

weight to 80.0 kg based on national 

survey data (see 2015 criteria update, 

section II.B.c).37 EPA is not aware of any 

local body weight data applicable to 

Maine tribes that would suggest a 

different value. 

6. Drinking Water Intake. EPA 

proposes to calculate HHC using a 

drinking water intake rate of 2.4 L/day. 

In 2015, EPA updated its national 

default drinking water intake rate in the 

304(a) HHC to 2.4 L/day (see 2015 

criteria update, section II.B.c).38 This 

rate is based on the national survey data 

and represents the per capita estimate of 

combined direct and indirect 

community water ingestion at the 90th 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
23248 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules 

39Final Updated Ambient Water Quality Criteria 

for the Protection of Human Health, (80 FR 36986, 

June 29, 2015). See also: USEPA. 2015. Final 2015 

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

Office of Water, Washington, DC. http://

water.epa.gov/scitech/swguidance/standards/

criteria/current/hhfinal.cfm. 

40EPA proposes a fish tissue-based 

methylmercury criterion rather than a fish tissuebased mercury criterion (which EPA disapproved in 

Indian waters) because methylmercury is the form 

of mercury found in fish and to which humans are 

exposed through eating fish. Human exposure to 

other forms of mercury is typically not associated 

with the aquatic environment. 

percentile for adults ages 21 and older. 

EPA is not aware of any local data 

applicable to Maine tribes that suggest 

a different rate. 

7. Pollutant-Specific Reference Doses 

and Cancer Slope Factors. As part of 

EPA’s 2015 criteria update, EPA 

conducted a systematic search of eight 

peer-reviewed, publicly available 

sources to obtain the most current 

toxicity values for each pollutant (RfDs 

for non-carcinogenic effects and CSFs 

for carcinogenic effects).39 EPA 

proposes to calculate HHC using the 

same toxicity values that EPA used in 

its 2015 criteria update, to ensure that 

the resulting criteria are based on a 

sound scientific rationale. Where EPA 

did not update criteria for certain 

pollutants in 2015, EPA proposes to use 

the toxicity values that the Agency used 

the last time it updated its 304(a) HHC 

for those pollutants. 

ii. Proposed Criteria. EPA proposes 

HHC for 96 different pollutants (93 

organism-only criteria, 88 water-plusorganism criteria) to protect the 

sustenance fishing designated use in the 

waters covered by this action (see Table 

3). In accordance with Maine DEP Rule 

Chapter 584, paragraph 1, the proposed 

‘‘Water & Organisms’’ criteria would 

apply to all waters except for marine 

waters, where the proposed ‘‘Organisms 

Only’’ criteria would apply. 

All of the proposed HHC criteria are 

proposed in units of micrograms per 

liter (mg/L) except for methylmercury,40

which is expressed as mg/kg in the 

edible portion of fish. 

BILLING CODE 6560–50–P 


Lhorne on DSK5TPTVN1PROD with PROPOSALS

EP20AP16.000</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

TABLE 3-PROPOSED HHC AND KEY PARAMETERS USED IN THEIR DERIVATION 

Chemical Name CAS Cancer Relative Reference Bioaccumu- Bioaccumu- Bioaccumu- Bioconce

Number Slope Source Dose, lation Factor lation Factor lation Factor tration 

Factor, Contribution RID for Trophic for Trophic for Trophic Factor 

CSF RSC (-) (mg/kg·d) Levell Level3 Level4 (L/kg 

(per (L/kg tissue) (L/kg tissue) (L/kg tissue) tissue)e 

mg/kg·d) 

1 1,1,2,2- 79-34-5 0.2 - - 5.7 7.4 8.4 - 

Tetrachloroethane 

2 1, 1,2-Trichloroethane 79-00-5 0.057 - - 6.0 7.8 8.9 - 

3 1, 1-Dichloroethy lene 75-35-4 - 0.20 0.05 2.0 2.4 2.6 - 

4 1,2,4,5- 95-94-3 - 0.20 0.0003 17,000 2,900 1,500 - 

Tetrachlorobenzene 

5 1,2,4- 120-82-1 0.029 - - 2,800 1,500 430 - 

Trichlorobenzene 

6 1 )-Dichlorobenzene 95-50-1 - 0.20 0.3 52 71 82 - 

7 1 ,2-Dichloropropane 78-87-5 0.036 - - 2.9 3.5 3.9 - 

8 1,2- 122-66-7 0.8 - - 18 24 27 - 

Diphenvlhvdrazine 

9 1,2-Trans- 156-60-5 - 0.20 o.oz 3.3 4.2 4.7 - 

Dichloroethylene 

10 1 ,3 -Dichlorobenzene 541-73-1 - 0.20 0.002 31 120 190 - 

11 1 ,3-Dichloropropene 542-75-6 0.122 - - 2.3 2.7 3.0 - 

12 1 ,4-Dich1orobenzene 106-46-7 - 0.20 O.o7 28 66 84 - 

13 2,4,5-Trichlorophenol 95-95-4 - 0.20 0.1 100 140 160 - 

14 2,4,6-Trichlorophenol 88-06-2 0.011 - - 94 130 150 - 

15 2,4-Dichlorophenol 120-83-2 - 0.20 0.003 31 42 48 - 

16 2,4-Dimethylphenol I 05-67-9 - 0.20 0.02 4.8 6.2 7.0 - 17 2,4-Dinitrophenol 51-28-5 - 0.20 0.002 4.4a 4.4a 4.4" - 18 2,4-Dinitrotoluene 121-14-2 0.667 - - 2.8 3.5 3.9 - 19 2-Chloronaphthalene 91-58-7 - 0.80 0.08 150 210 240 - 

20 2-Chlorophenol 95-57-8 - 0.20 0.005 3.8 4.8 5.4 - 

21 2-Methyl-4,6- 534-52-1 - 0.20 0.0003 6.8 8.9 10 - 

Dinitrophenol 

22 3,3'- 91-94-1 0.45 - - 44 60 69 - 

Dichlorobenzidine 

EP20AP16.001</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

TABLE 3- PROPOSED HHC AND KEY PARAMETERS USED IN THEIR DERIVATION 

Chemical Name CAS Cancer Relative Reference Bioaccumu- Bioaccumu- Bioaccumu- Bioconce

Number Slope Source Dose, lation Factor lation Factor lation Factor tration 

Factor, Contribution RID for Trophic for Trophic for Trophic Factor 

CSF RSC (-) (mg/kg·d) Level2 Level3 Level4 (L/kg 

(per (Likg tissue) (Likg tissue) (L/kg tissue) tissue)" 

mg/kg·d) 

23 4,4'-DDD 72-54-8 0.24 - - 33,000 140,000 240,000 - 

24 4,4'-DDE 72-55-9 0.167 - - 270,000 1,100,000 3,100,000 - 

25 4,4'-DDT 50-29-3 0.34 - - 35,000 240,000 1,100,000 - 

26 Acenaphthene 83-32-9 - 0.20 0.06 510a 510" 510" - 

27 Acrolein 107-02-8 - 0.20 0.0005 1.0 1.0 1.0 - 

28 Aldrin 309-00-2 17 - - 18,000 310,000 650,000 - 

29 alpha-BHC 319-84-6 6.3 - - 1,700 1.400 1,500 - 

30 alpha-Endosulfan 959-98-8 - 0.20 0.006 130 180 200 - 

31 Anthracene 120-12-7 - 0.20 0.3 610" 610" 610" - 

32 Antimony 7440-36-0 - 0.40 0.0004 - - - 1 

33 Benzene 71-43-2 b0.055 - - 3.6 4.5 5.0 - 

34 Benzo (a) Anthracene 56-55-3 0.73 - - 3,900" 3,900" 3,900' - 

35 Benzo (a) Pyrene 50-32-8 7.3 - - 3,900a 3,900a 3,900" - 36 Benzo (b) 205-99-2 0.73 - - 3,900" 3,900" 3,900" - 

Fluoranthene 

37 Benzo (k) 207-08-9 0.073 - - 3,900a 3,900a 3,900" - 

Fluoranthcnc 

38 bcta-BHC 319-85-7 1.8 - - 110 160 180 - 

39 beta-Endosulfan 33213-65-9 - 0.20 0.006 80 110 130 - 

40 Bis(2-Ch1oro-1- 108-60-1 - 0.20 0.04 6.7 8.8 10 - 

Methv1ethyl) Ether 

41 Bis(2-Ch1oroethyl) 111-44-4 l.l - - 1.4 1.6 1.7 - 

Ether 

42 Bis(2-Ethylhexy1) 117-81-7 0.014 - - 710a 710" 710" - 

Phthalate 

43 Bromoform 75-25-2 0.0045 - - 5.8 7.5 8.5 - 

44 Butylbenzyl Phthalate 85-68-7 0.0019 - - 19,000" 19,000" 19,000" - 

45 Carbon Tetrachloride 56-23-5 0.07 - - 9.3 12 14 - 

EP20AP16.002</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

TABLE 3- PROPOSED HHC AND KEY PARAMETERS USED IN THEIR DERIVATION 

Chemical Name CAS Cancer Relative Reference Bioaccumu- Bioaccumu- Bioaccumu- Bioconce

Number Slope Source Dose, lation Factor lation Factor lation Factor tration 

Factor, Contribution RID for Trophic for Trophic for Trophic Factor 

CSF RSC (-) (mg/kg·d) Leve12 Level3 Leve14 (L/kg 

(per (L/kg tissue) (L/kg tissue) (Likg tissue) tissue)" 

mg/kg·d) 

46 Chlordane 57-74-9 0.35 - - 5,300 44,000 60,000 - 

47 Chloroben7ene IOS-90-7 - 0.20 0.02 14 19 22 - 

48 Chlorodibromomctha 124-48-1 0.040 - - 3.7 4.8 5.3 - 

ne 

49 Chrysene 218-01-9 0.0073 - - 3,900" 3,900" 3,900" - 

50 Cyanide 57-12-5 - 0.20 0.0006 - - - 1 

51 Dibenzo (a,h) 53-70-3 7.3 - - 3,900" 3,900" 3,900" - 

Anthracene 

52 Dichlorobromometha 75-27-4 0.034 - - 3.4 4.3 4.8 - 

ne 

53 Dieldrin 60-57-1 16 - - 14,000 210,000 410,000 - 

54 Diethyl Phthalate 84-66-2 - 0.20 0.8 920a 920" 920" - 

55 Dimethyl Phthalate 131-11-3 - 0.20 10 4,000" 4,000" 4,000" - 

56 Di-n-Butyl Phthalate 84-74-2 - 0.20 0.1 2,900" 2,900" 2,900" - 

57 Dinitrophenols 25550-58-7 - 0.20 0.002 - - - 1.51 

58 Endosulfan Sulfate 1031-07-8 - 0.20 0.006 88 120 140 - 

59 Endrin 72-20-S - O.SO 0.0003 4,600 36,000 46,000 - 

60 Endrin Aldehyde 7421-93-4 - 0.80 0.0003 440 920 850 - 

61 Ethy I benzene 100-41-4 - 0.20 0.022 100 140 160 - 

62 Fluoranthene 206-44-0 - 0.20 0.04 1,500" 1,500" 1,500" - 

63 Fluorene S6-73-7 - 0.20 0.04 230 450 710 - 

64 gamma-BHC 58-89-9 - 0.50 0.0047 1,200 2.400 2,500 - 

(Lindane) 

65 Heptachlor 76-44-8 4.1 - - 12,000 180,000 330,000 - 

66 Heptachlor Epoxide 1024-57-3 5.5 - - 4,000 28.000 35,000 - 

67 Hexachlorobenzene 118-74-1 1.02 - - 18,000 46,000 90,000 - 

68 Hexachlorobutadiene 87-68-3 0.04 - - 23,000 2,800 1,100 - 

EP20AP16.003</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

TABLE 3- PROPOSED HHC AND KEY PARAMETERS USED IN THEIR DERIVATION 

Chemical Name CAS Cancer Relative Reference Bioaccumu- Bioaccumu- Bioaccumu- Bioconce

Number Slope Source Dose, lation Factor lation Factor lation Factor tration 

Factor, Contribution RID for Trophic for Trophic for Trophic Factor 

CSF RSC (-) (mg/kg·d) Leve12 Level3 Leve14 (Likg 

(per (L/kg tissue) (L/kg tissue) (L/kg tissue) tissue)e 

mg/kg·d) 

69 Hexachlorocyclohexa 608-73-1 1.8 - - 160 220 250 - 

ne-Technical 

70 Hexachlorocyclopenta 77-47-4 - 0.20 0.006 620 1.500 uoo - 

diene 

71 Hexachloroethane 67-72-1 0.04 - - 1,200 280 600 - 

72 Indeno (1,2,3-cd) 193-39-5 0.73 - - 3,900" 3,900" 3,900" - 

Pyrene 

73 Isophorone 78-59-1 0.00095 - - 1.9 2.2 2.4 - 

74 Methoxychlor 72-43-5 - 0.80 2.E-05 1,400 4,800 4,400 - 75 Methylene Chloride 75-09-2 0.002 - - 1.4 1.5 1.6 - 76 Methylmercury 22967-92-6 - 2.70E-05 0.0001 - - - - 

77 Nickel 7440-02-0 - 0.20 0.02 - - - 47 

78 Nitrobenzene 98-95-3 - 0.20 0.002 2.3 2.8 3.1 - 79 Nitrosamines - 43.46 - - - - - 0.20 

80 N- 924-16-3 5.43 - - - - - 3.38 

Nitrosodibutylamine 

81 N- 55-18-5 43.46 - - - - - 0.20 

Nitrosodiethy !amine 

82 N- 62-75-9 51 - - - - - 0.026 

Nitrosodimethy lamine 

83 N-Nitrosodi-n- 621-64-7 7.0 - - - - - 1.13 

propvlamine 

84 N- 86-30-6 0.0049 - - - - - 136 

Nitrosodiphcny laminc 

85 N-Nitrosopyrrolidine 930-55-2 2.13 - - - - - 0.055 

86 Pentachlorobenzene 608-93-5 - 0.20 0.0008 3,500 4,500 10,000 - 

87 Pentachlorophenol 87-86-5 0.4 - - 44 290 520 - 

88 Phenol I 08-95-2 - 0.20 0.6 1.5 1.7 1.9 - 

EP20AP16.004</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

TABLE 3-PROPOSED HHC AND KEY PARAMETERS USED IN THEIR DERIVATION 

Chemical Name CAS Cancer Relative Reference Bioaccumu- Bioaccumu- Bioaccumu- Bioconcen- 

Number Slope Source Dose, lation Factor lation Factor lation Factor tration 

Factor, Contribution RID for Trophic for Trophic for Trophic Factor 

CSF RSC (-) (mg/kg·d) Level2 Level3 Level4 (L/kg 

(per (L/kg tissue) (L/kg tissue) (L/kg tissue) tissuet 

rug/kg·d) 

89 Polychlorinated 1336-36-3 2 - - - - - 31,200 

Biphenyls (PCBs) 

90 Pyrene 129-00-0 - 0.20 0.03 860" 860" 860" - 

91 Selenium 7782-49-2 - 0.20 0.005 - - - 4.8 

92 Toluene 108-88-3 - 0.20 0.0097 11 15 17 - 

93 Toxaphene 8001-35-2 1.1 - - 1,700 6,600 6,300 - 

94 Trichloroethylene 79-01-6 0.05 - - 8.7 12 13 - 95 Vinyl Chloride 75-01-4 1.5 - - 14 1.6 1.7 - 

96 Zinc 7440-66-6 - 0.20 0.3 - - - 47 

"This bioaccumulation factor was estimated from laboratory-measured bioconcentration factors; EPA multiplied tlris bioaccumulation factor by th

286 g/d to calculate the human health criteria. 

bEPA's 304(a) HHC for benzene use a CSF range of 0.015 to 0.055 per mglk:g-day. EPA proposes to use the higher end of the CSF range (0.055 p

proposed benzene criteria. 

"This criterion is ex'})ressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish) and applies equally to fresh and marine 

Criterion for the Protection of Human Health: Methylmercury (EP A-823 -R -01-001, January 3, 2001) for how tlris value is calculated using the cri

Methodology rearranged to solve for a protective concentration in fish tissue rather than in water. 

"This criterion applies to total PCBs (e.g., the sum of all congener or isomer or homolog or Aroclor analyses). 

eEP A multiplied this bioconccntration factor by the overall fish consumption rate of 286 g/d to calculate the human health criteria. 
23254 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules 

41USEPA. 2010. Report on 2009 National 

Epidemiologic and Environmental Assessment of 

Recreational Water Epidemiology Studies. United 

States Environmental Protection Agency, 

Washington, DC EPA–600–R–10–168. 

42http://www.penobscotadventures.com/onlinebooking/ (whitewater rafting on Penobscot River 

Oct. 2–4, 2015); http://www.paddleandchowder.

org/ (paddling/kayaking in October) 

43USEPA. 1986. Quality Criteria for Water 1986, 

United States Environmental Protection Agency, 

Washington, DC. EPA 440/5–86–001. 

BILLING CODE 6560–50–C 

B. Proposed WQS for Waters in Indian 

Lands 

1. Bacteria Criteria 

a. What did EPA disapprove? On 

March 16, 2015, EPA disapproved 

Maine’s 1985 bacteria criteria for the 

protection of the designated use of 

‘‘recreation in and on the water’’ 

(recreational criteria), as revised in 2005 

and 2008, for Class B, C, GPA, SB and 

SC waters in Indian lands. This 

designated use and these criteria are set 

forth in 38 M.R.S. 465(3.B) and (4.B), 

465–A(1.B), and 465–B(2.B) and (3.B), 

respectively. EPA’s disapproval of 

Maine’s recreational criteria for waters 

in Indian lands was based on a review 

of whether the criteria, as a whole, 

protect the applicable designated use. 

Because Maine’s recreational criteria 

apply only to fecal sources of human 

and domestic origin and do not include 

an explicit duration and frequency of 

exceedance, EPA concluded that 

Maine’s recreational criteria are not 

fully protective of the recreation 

designated use in waters in Indian 

lands. 

Maine’s recreational bacteria criteria 

for Class B, C, GPA, SB and SC waters 

include only fecal sources of ‘‘human 

and domestic origin’’ and fail to include 

naturally occurring sources. In the case 

of bacteria, pathogens that pose human 

health risks can come from naturally 

occurring sources such as wildlife as 

well as from human and domestic 

sources. Therefore, a potential human 

health risk from recreational exposure to 

bacteria exists in wildlife-impacted 

waters (2012 Recreational Water Quality 

Criteria, section 3.5.1–2). In addition, 

EPA published new recommended 

304(a) recreational criteria in 2012, 

which include two numeric thresholds 

(geometric mean and statistical 

threshold value, or STV), an averaging 

duration, and a maximum frequency of 

exceedance. Maine’s recreational 

criteria do not include an explicit 

duration and frequency of exceedance 

or an STV, all of which EPA finds are 

necessary to protect designated uses. 

On June 5, 2015, EPA disapproved the 

narrative bacteria criteria for Class AA, 

A and SA waters in Indian lands for the 

protection of recreation uses and, in the 

case of SA waters, also for shellfishing 

uses. These criteria are set forth in 38 

M.R.S. 465(1.B and 2.B) and 465–B(1.B), 

respectively. These criteria specify that 

the bacteria content of these waters shall 

be ‘‘as naturally occurs.’’ Although the 

intent of these criteria is to reflect 

conditions unaffected by human 

activity, in the case of bacteria, 

pathogens that pose human health risks 

from recreational exposure or shellfish 

consumption can result from naturally 

occurring sources such as wildlife. 

Because these narrative bacteria criteria 

do not address bacteria from wildlife 

sources, EPA disapproved them as not 

adequately protecting recreation in and 

on the waters in Class AA, A and SA 

waters, and propagation and harvesting 

of shellfish in Class SA waters. 

b. What is EPA proposing? i. 

Recreational Bacteria Criteria. EPA is 

proposing recreational criteria for Class 

AA, A, B, C, GPA, SA, SB and SC waters 

in Indian lands based on EPA’s 2012 

Recreational Water Quality Criteria 

(RWQC) recommendations (EPA Office 

of Water 820–F–12–058). The criterion 

magnitude is expressed in terms of 

Escherichia coli colony forming units 

per 100 milliliters (cfu/100 ml) for fresh 

waters and Enterococcus spp. colony 

forming units per 100 milliliters (cfu/

100 ml) for marine waters, consistent 

with Maine’s current criteria expression 

and EPA’s 2012 recommendations. 

The 2012 RWQC recommendations 

offer two sets of numeric concentration 

thresholds, either of which would 

protect the designated use of primary 

contact recreation and, therefore, would 

protect the public from exposure to 

harmful levels of pathogens. The 

proposed criteria’s magnitude, duration 

and frequency are based on EPA’s 

illness rate of 32 NGI per 1,000 primary 

contact recreators, where NGI represents 

the gastrointestinal illnesses as 

measured by EPA’s National 

Epidemiological and Environmental 

Assessment of Recreational Water 

(NEEAR) study.41 EPA chose the 32 NGI 

per 1,000 primary contact recreators 

illness rate because the resulting 

geometric mean components of the 

criteria most closely match the 

geometric means in Maine’s criteria. 

EPA specifically invites comment on 

whether instead to base the criteria on 

EPA’s alternative illness threshold of 36 

NGI per 1,000 primary contact 

recreators set forth in the 2012 RWQC. 

In addition, for Class AA, A and SA 

waters in Indian lands, EPA is 

proposing to include Maine’s narrative 

criteria expression that bacteria content 

of these waters be no greater than as 

‘‘naturally occurs.’’ This maintains 

Maine’s intention that the waters be free 

of human caused pathogens, while the 

specific numeric criteria EPA proposes 

also provide protection for designated 

recreational uses in the event there are 

wildlife sources. 

Finally, in accordance with the 

recommendation to Maine in EPA’s 

March 16, 2015 letter, EPA is proposing 

that the criteria apply all year long in all 

waters in Indian lands. This differs from 

Maine’s disapproved criteria, which do 

not apply from October 1 through May 

14 in Classes B, C, GPA, SB, and SC 

waters. EPA does not have a record to 

support a conclusion that no recreation 

in and on these waters occurs between 

October 1 and May 14. On the contrary, 

EPA has found information indicating 

that white water rafting, paddling, and 

kayaking occur after October 1,42 and 

during consultation EPA learned from 

the Penobscot Nation that as long as 

there is no ice on the Penobscot River, 

recreators are on the river paddling and 

fishing. At the same time, EPA 

recognizes that there may be periods 

during which recreational activities do 

not occur in and on these waters. 

Therefore, EPA specifically invites 

comment on whether EPA should 

promulgate an alternative seasonal term 

during which the criteria would not 

apply that would adequately protect 

recreational uses, such as, for example, 

December through February. 

ii. Shellfishing Bacteria Criteria. EPA 

proposes shellfishing criteria for SA 

waters in Indian lands based on 

recommendations from the National 

Shellfish Sanitation Program (NSSP). 

The criteria magnitude is expressed in 

terms of total coliform Most Probable 

Number (MPN)/100 ml. 

EPA last provided recommendations 

for bacteria to protect shellfish 

harvesting uses in its 1986 304(a) 

recommendations,43 which provided 

fecal coliform criteria for shellfish 

harvesting. As described in that 

document, the basis for the criteria was 

a study from the NSSP which related an 

accepted international standard of total 

coliforms to fecal coliforms. NSSP has 

published several versions of its 

guidance which provides 

recommendations for criteria expressed 

as fecal coliform or total coliform. EPA 

proposes to promulgate criteria as total 

coliform to be consistent with Maine’s 

narrative criteria to protect shellfish 

harvesting in Class SB and SC waters, 

which say that the numbers of total 

coliform bacteria or other specified 

indicator organisms in samples 

representative of the waters in Class SB 

and SC shellfish harvesting areas may 

not exceed criteria recommended under 


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44USDA. 2013. National Shellfish Sanitation 

Program (NSSP) Guide for the Control of Molluscan 

Shellfish: 2013 Revision. United States Food and 

Drug Administration, Washington, DC page 210. 

posted at http://www.fda.gov/downloads/Food/

GuidanceRegulation/FederalStateFoodPrograms/

UCM415522.pdf 

45USEPA. 2013. Aquatic Life Ambient Water 

Quality Criteria for Ammonia—Freshwater 2013. 

United States Environmental Protection Agency, 

Washington, DC EPA 822–R–13–001 

46USEPA. 1986. Quality Criteria for Water 1986, 

United States Environmental Protection Agency, 

Washington, DC. EPA 440/5–86–001, pH section. 

47USEPA. 1986. Quality Criteria for Water 1986, 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. EPA 440/5–86–001. 

Temperature section. 

48 Id. 

the National Shellfish Sanitation 

Program, United States Food and Drug 

Administration. 

EPA proposes that in Class SA 

shellfish harvesting areas, the number of 

total coliform bacteria in samples 

representative of the waters in shellfish 

harvesting areas shall not exceed a 

geometric mean for each sampling 

station of 70 MPN (most probable 

number) per 100 ml, with not more than 

10% of samples exceeding 230 MPN per 

100 ml for the taking of shellfish. The 

proposal is consistent with the current 

NSSP recommendations for total 

coliform included in the ‘‘Standard for 

the Approved Growing Area 

Classification in the Remote Status.’’ 44

Therefore, the proposed criteria are 

protective of shellfish harvesting uses in 

Class SA waters. 

2. Ammonia Criteria for Fresh Waters. 

a. What did EPA disapprove? On March 

16, 2015, EPA disapproved the 

ammonia criteria for protection of 

aquatic life for fresh waters in Indian 

lands. The criteria are set forth in DEP 

Rule Chapter 584, Appendix A. EPA’s 

disapproval was based on a review of 

whether the criteria protect the 

applicable designated uses and are 

based on sound scientific rationale. EPA 

revised its CWA Section 304(a) 

recommended ammonia criteria for 

fresh waters in August 2013 and 

incorporated the latest science for 

freshwater mussels and snails, which 

are sensitive to ammonia toxicity.45

This science was not included in EPA’s 

1999 ammonia criteria 

recommendations, on which Maine’s 

criteria are based. Therefore, EPA 

concluded that Maine’s criteria are not 

protective of the designated use because 

they are not protective of freshwater 

mussels and snails and, accordingly, 

disapproved the criteria. 

b. What is EPA proposing? Ammonia 

is a constituent of nitrogen pollution. 

Unlike other forms of nitrogen, which 

can cause eutrophication of a waterbody 

at elevated concentrations, the primary 

concern with ammonia is its direct toxic 

effects on aquatic life, which are 

exacerbated by elevated pH and 

temperature. 

EPA proposes ammonia criteria for 

fresh waters in Indian lands based on 

the 2013 updated 304(a) recommended 

ammonia criterion. The acute and 

chronic criteria concentrations in EPA’s 

2013 update are expressed as functions 

of temperature and pH, so the 

applicable criteria vary by waterbody, 

depending on the temperature and pH 

of those waters. The criteria document 

describes the relationship between 

ammonia and these water quality factors 

and provides tables showing how the 

criteria values change with varying pH 

and temperatures. EPA’s proposed 

criteria include tables that contain 

Criterion Maximum Concentrations 

(CMC) and Criterion Continuous 

Concentrations (CCC) that correspond to 

a range of temperatures and pH values, 

and require that the applicable CMCs 

and CCCs shall not be exceeded. In 

addition, consistent with EPA’s 

recommended criteria, the proposed 

criteria include a requirement that the 

highest four-day average within the 

same 30-day period used to determine 

compliance with the CCC shall not 

exceed 2.5 times the CCC, more than 

once every three years. For the reasons 

explained in EPA’s 304(a) criteria 

recommendations for ammonia, EPA’s 

proposed criteria are protective of the 

designated aquatic life use and based on 

sound science. 

3. pH Criterion for Fresh Waters. a. 

What did EPA disapprove? Maine’s 

freshwater pH criterion in 38 M.R.S. 

464(4.A(5)) prohibits discharges from 

causing the pH of receiving waters to 

fall outside the range of 6.0 to 8.5. On 

June 5, 2015, EPA disapproved the pH 

criterion for fresh waters in Indian lands 

because the lower end of the range (6.0) 

is not protective of aquatic life uses. 

b. What is EPA proposing? EPA 

proposes a pH criterion with a range of 

6.5 to 8.5. The proposal is based on the 

lower value of EPA’s recommended pH 

criterion (6.5 to 9.0) 46 to protect 

freshwater fish and bottom-dwelling 

invertebrates that provide food for 

freshwater fish. In waters that are more 

acidic than 6.5, the likelihood of harm 

to aquatic species increases when 

periodic acidic inputs (either natural or 

anthropogenic in origin) liberate CO2

from bicarbonate in the water leading to 

direct lethality as a result of lack of 

oxygen, or causing a further drop in pH 

into potentially lethal ranges. Fish suffer 

adverse physiological effects increasing 

in severity as the degree of acidification 

increases, until lethal levels are reached. 

Therefore, EPA proposes that the pH of 

fresh waters in Indian lands in Maine 

shall not fall below 6.5. EPA includes in 

the proposal Maine’s existing value of 

8.5 for the upper end of the pH range 

because it is within the range of 6.5 to 

9.0 that EPA recommends in order to 

protect aquatic species from extreme pH 

conditions. 

4. Temperature Criteria for Tidal 

Waters. a. What did EPA disapprove? 

On June 5, 2015, EPA disapproved 

Maine’s tidal temperature criteria in 

DEP Rule Chapter 582(5), for tidal 

waters in Indian lands (specifically, the 

intertidal zone at Pleasant Point), 

because they are not protective of 

aquatic life uses. The criteria allow a 

4 °F monthly average rise in ambient 

temperatures from individual 

dischargers from September 2 to May 

30, and a 1.5 °F monthly average rise 

from June 1 to September 1, as 

measured outside of any mixing zone; 

they also allow a maximum temperature 

of 85 °F as measured outside of any 

mixing zone. EPA disapproved the 4 °F 

temperature rise provision and the 

maximum temperature criterion of 85 °F 

as not protective of indigenous species 

that have been associated with tidal 

waters in the vicinity of Pleasant Point, 

where typical temperatures are in the 

37 °–52 °F range based on the nearest 

NOAA monitoring station at Eastport, 

Maine. 

b. What is EPA proposing? In order to 

assure protection of the indigenous 

marine community characteristic of the 

intertidal zone at Pleasant Point, EPA 

proposes criteria consistent with EPA’s 

304(a) recommended criteria for tidal 

waters.47 EPA proposes a maximum 

increase in the weekly average baseline 

ambient temperature resulting from 

artificial sources of 1 °C (1.8 °F) during 

all seasons of the year, provided that the 

summer maximum of 18 °C (64.4 °F) is 

not exceeded. The proposal specifies 

that the weekly average baseline thermal 

condition must be calculated using the 

daily maxima averaged over a 7-day 

period, and must be measured at a 

reference site where there is no 

unnatural thermal addition from any 

source, that is in reasonable proximity 

to the thermal discharge (within five 

miles), and that has similar hydrography 

to that of the receiving waters at the 

discharge. Further, EPA proposes that 

daily temperature cycles characteristic 

of the waterbody shall not be altered in 

either amplitude or frequency.48

The natural temperature fluctuation 

provision in the proposed rule is 

necessary to induce and protect the 

reproductive cycles of aquatic 


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49 Id, 

50 Id. 

51 Id. 

52 Id. 

53 Id. 

54Cargnelli et al. National Oceanic and 

Atmospheric Administration. NOAA Technical 

Memorandum NMFS–NE–131. Essential Fish 

Habitat Source Document: Pollock, Pollachius 

virens, Life History and Habitat Characteristics. 

September 1999. Pages 1–38. 55 Id. 

56 Davies, Tudor T., Establishing Site Specific 

Aquatic Life Criteria Equal to Natural Background, 

EPA Memorandum to Water Management Division 

Directors, Regions 1–10, State and Tribal Water 

Quality Management Program Directors, posted at: 

http://www.epa.gov/sites/production/files/2014–08/

documents/naturalbackground-memo.pdf 

57EPA approved these natural conditions 

provisions for waters in Indian lands as they relate 

to aquatic life, acknowledging that there may be 

naturally occurring concentrations of pollutants 

that exceed the national criteria published under 

section 304(a) of the CWA that are still protective 

of aquatic life. 

organisms and to regulate other life 

factors. Since aquatic organisms are 

essentially poikilotherms (cold 

blooded), the temperature of the water 

regulates their metabolism and ability to 

survive and reproduce effectively. In 

addition, natural temperature 

fluctuations are essential to maintain 

the existing community structure and 

the geographic distribution of species.49

In intertidal waters, elevated 

temperatures affect periphyton, benthic 

invertebrates, and fish, in addition to 

causing shifts in the dominant primary 

producers. Community balance can be 

influenced strongly by temperaturedependent factors, including: rates of 

reproduction, recruitment, and growth 

of each component population—all of 

which were considered in deriving all 

components of the temperature criteria 

in this rule. A few degrees elevation in 

average monthly temperature outside of 

the conditions described in this rule can 

appreciably alter a community through 

changes in interspecies relationships.50

The intertidal zone at Pleasant Point 

is home to indigenous species such as 

pollock, haddock, juvenile flounder, 

juvenile and adult shad, cod, alewife, 

blueback herring as well as various 

species of clams, crabs, urchins and 

lobsters found in the vicinity of these 

waters (personal communication Dr. 

Theo Willis, University of Southern 

Maine and Dr. Robert Stephenson, St. 

Andrews Biological Station, St. 

Andrews NB). 

Pollock are indigenous fish that 

inhabit the subtidal and intertidal zones 

of the Gulf of Maine.51 Within the 

subtidal and intertidal zones, pollock 

move to different locations depending 

on the temperature conditions.52

Pollock are abundant in the intertidal 

zone in the summer and fall months, 

and as such, are an appropriate 

sensitive, indigenous species by which 

to set a summer maximum temperature 

criterion.53 EPA proposes a summer 

weekly maximum of 18 °C (64.4 °F), 

which is consistent with EPA’s Gold 

Book methodology and is the value 

identified in the scientific literature that 

is protective of juvenile pollock 

(Pollachius virens).54

The summer maximum of 18 °C (64.4 

°F) is a weekly average value and is 

calculated using the daily maxima 

averaged over a 7-day period, similar to 

the calculation of the baseline ambient 

temperature. EPA uses a weekly average 

maximum temperature because, as 

explained in regional guidance, ‘‘it 

describes the maximum temperatures 

. . . but is not overly influenced by the 

maximum temperature of a single day. 

Thus it reflects an average of maximum 

temperatures that fish are exposed to 

over a week-long period.’’ 55

Collectively, the criteria that EPA 

proposes will protect aquatic life from 

the deleterious effects of increased mean 

water temperature and from alterations 

in the amplitude and frequency of 

mean-high and mean-low water 

temperatures. EPA’s recommended 

304(a) criteria, on which this proposal is 

based, are designed to protect aquatic 

species from short- and long-term 

temperature anomalies, resulting in the 

maintenance of reproductive, 

recruitment, and growth cycles. 

5. Natural Conditions Provisions. a. 

What did EPA disapprove? On June 5, 

2015, EPA disapproved, for waters in 

Indian lands, two natural conditions 

provisions as they apply to water 

quality criteria to protect human health. 

Specifically, EPA disapproved 38 

M.R.S. 420(2.A), which states ‘‘Except 

as naturally occurs or as provided in 

paragraphs B and C, the board shall 

regulate toxic substances in the surface 

waters of the State at the levels set forth 

in federal water quality criteria as 

established by the United States 

Environmental Protection Agency 

pursuant to the Federal Water Pollution 

Control Act, Public Law 92–500, Section 

304(a), as amended’’; and 38 M.R.S. 

464(4.C), which states: ‘‘Where natural 

conditions, including, but not limited 

to, marshes, bogs and abnormal 

concentrations of wildlife cause the 

dissolved oxygen or other water quality 

criteria to fall below the minimum 

standards specified in sections 465, 

465–A and 465–B, those waters shall 

not be considered to be failing to attain 

their classification because of those 

natural conditions.’’ 

EPA concluded that to the extent that 

these provisions would allow an 

exception from otherwise applicable 

HHC, they are not consistent with EPA’s 

interpretation of the relationship 

between natural conditions and the 

protection of designated human health 

uses, which is articulated in EPA’s 

November 5, 1997 guidance entitled 

‘‘Establishing Site Specific Aquatic Life 

Criteria Equal to Natural 

Background.’’ 56 In contrast with aquatic 

life uses,57 a naturally occurring level of 

a pollutant does not necessarily protect 

designated human health uses. 

Naturally occurring levels of a pollutant 

are assumed to protect aquatic life 

species that have naturally developed in 

the affected waters. However, human 

health does not adapt to higher ambient 

pollutant levels, even if they are 

naturally caused. Consequently, the 

same assumptions of protectiveness 

cannot be made with regard to 

designated uses that affect human 

health (e.g., people eating fish or 

shellfish from Maine waters, and 

recreating in Maine waters). For this 

reason, EPA’s 1997 guidance also states 

that where the natural background 

concentration exceeds the state-adopted 

human health criterion, at a minimum, 

states should re-evaluate the human 

health use designation. 

EPA disapproved the natural 

conditions clauses at 38 M.R.S 464(4.C) 

and 420(2.A) for waters in Indian lands 

as they apply to criteria that protect 

human health because the application of 

these provisions fails to protect 

designated human health uses as 

required by the CWA and federal WQS 

regulations at 40 CFR 131.11(a). 

b. What is EPA proposing? For each 

of the disapproved naturally occurring 

or natural conditions exceptions, EPA 

proposes a regulation that states that 

such provision ‘‘does not apply to water 

quality criteria intended to protect 

human health.’’ Under this approach, 

Maine still could implement the natural 

conditions provisions for other criteria 

related to non-human health uses. 

6. Mixing Zone Policy. a. What did 

EPA disapprove? On June 5, 2015, EPA 

disapproved, for waters in Indian lands, 

Maine’s mixing zone policy set forth in 

38 M.R.S. 451. This provision allows the 

DEP to establish mixing zones that 

would allow the ‘‘reasonable’’ 

opportunity for dilution or mixture of 

pollutants before the receiving waters 

would be evaluated for WQS 

compliance. 

States are not required to adopt 

mixing zone policies into their WQS, 

but if they do, they are subject to EPA 


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58USEPA. 2014. Water Quality Standards 

Handbook, Chapter 5. EPA–820–B–14–004. 

59 Id. at p. 4. 

60 Id. at pp. 9–10. 61 Id. at p. 10. 

review and approval. 40 CFR 131.13. A 

mixing zone is a limited area or volume 

of water where initial dilution of a 

discharge takes place, and where certain 

numeric criteria may be exceeded, but 

the designated uses of the waterbody as 

a whole must still be protected. EPA’s 

guidance includes specific 

recommendations to ensure that mixing 

zones do not impair the designated uses 

of the waterbody as a whole. Among 

other things, a state mixing zone policy 

must ensure that pollutant 

concentrations in the mixing zone are 

not lethal to organisms passing through 

and do not cause significant human 

health risks; and that mixing zones do 

not endanger critical areas such as 

breeding or spawning grounds, drinking 

water intakes and sources, shellfish 

beds, or endangered or threatened 

species habitat. Maine’s mixing zone 

law does not contain any of these or 

other protective safeguards to ensure the 

protection of designated uses. The only 

specific limitation on mixing zones in 

Maine’s mixing zone statute is that they 

be ‘‘reasonable.’’ There are also no state 

regulations that define the boundaries of 

a ‘‘reasonable’’ mixing zone. Therefore 

EPA disapproved Maine’s law for waters 

in Indian lands as being inadequate to 

protect designated uses. 

b. What is EPA proposing? EPA 

proposes, for waters in Indian lands, a 

mixing zone policy that retains Maine’s 

statutory mixing zone language and 

expands upon it by: 1. Including 

specific information that a request for a 

mixing zone must contain, and 2. 

including minimum requirements that 

any mixing zone must satisfy in order to 

qualify for approval by DEP. 

The proposed information 

requirements are intended to ensure that 

any discharger seeking DEP’s approval 

of a mixing zone provides sufficient 

information for DEP to determine 

whether and to what extent a mixing 

zone may be authorized. 

The proposed mixing zone minimum 

requirements are intended to ensure that 

any mixing zone approved by DEP will 

not interfere with or impair the 

designated uses of the waterbody as a 

whole. They are consistent with 

recommendations in EPA’s Water 

Quality Standards Handbook (2014).58

The proposed rule clarifies the extent to 

which water quality criteria may be 

exceeded in a mixing zone: chronic 

water quality criteria for those 

parameters approved by DEP may be 

exceeded within the mixing zone; acute 

water quality criteria may be exceeded 

for such parameters, but only within the 

zone of initial dilution inside the 

mixing zone, and the acute criteria must 

be met as close to the point of discharge 

as practicably attainable; and no water 

quality criteria may be exceeded outside 

of the boundary of a mixing zone as a 

result of the discharge for which the 

mixing zone was authorized. The 

proposed rule also specifies that a 

mixing zone must be as small as 

necessary, and that pollutant 

concentrations must be minimized and 

reflect the best practicable engineering 

design of the outfall to maximize initial 

mixing.The proposal includes a 

requirement that mixing zones be 

established consistent with the 

methodologies in Section 4.3 and 4.4 of 

EPA’s ‘‘Technical Support Document for 

Water Quality-based Toxics Control’’ 

EPA/505/2–90–001, dated March 1991. 

This requirement is consistent with 

EPA’s recommendation that mixing 

zone policies describe the general 

procedures for defining and 

implementing mixing zones in terms of 

location, maximum size, shape, outfall 

design, and in-zone water quality, at a 

minimum.59 EPA also proposes a 

requirement that the mixing zone 

demonstration be based on the 

assumption that a pollutant does not 

degrade within the proposed mixing 

zone, unless a valid scientific study 

demonstrates otherwise. This 

assumption provides a conservative 

estimate of potential pollutant 

concentrations to be used when 

calculating allowable mixing zone 

discharges. 

EPA proposes to prohibit the use of a 

mixing zone for bioaccumulative 

pollutants and for bacteria, consistent 

with EPA’s guidance that recommends 

that mixing zone policies not allow 

mixing zones for discharges of these 

pollutants in order to protect the 

designated uses.60 EPA adopted this 

approach for bioaccumulative pollutants 

in 2000 when it amended its 1995 Final 

Water Quality Guidance for the Great 

Lakes System at 40 CFR part 132 to 

phase out mixing zones for existing 

discharges of bioaccumulative 

pollutants within the Great Lakes Basin 

and ban such mixing zones for new 

discharges within the Basin. Because 

fish tissue contamination tends to be a 

far-field problem affecting entire or 

downstream waterbodies rather than a 

near-field problem being confined to the 

area within a mixing zone, EPA has 

emphasized that it may be appropriate 

to restrict or eliminate mixing zones for 

bioaccumulative pollutants in certain 

situations such as where mixing zones 

may encroach on areas often used for 

fish harvesting, particularly for 

stationary species such as shellfish, and 

where there are uncertainties in the 

assimilative capacity of the waterbody. 

Similarly, because bacteria mixing 

zones may cause significant human 

health risks and endanger critical areas 

(e.g., recreational areas), EPA 

recommends that mixing zone policies 

not allow mixing zones for bacteria in 

waters designated for primary contact 

recreation. As explained in EPA’s 

guidance, the presumption in waters 

designated for primary contact 

recreation is that primary contact 

recreation can safely occur throughout 

the waterbody and, therefore, that 

bacteria levels will not exceed criteria.61

People recreating in or through a 

bacteria mixing zone may be exposed to 

greater risk of illnesses than would 

otherwise be allowed by the criteria for 

protection of the recreation use. Primary 

contact recreation is a designated use for 

all waters in Maine, including in Indian 

lands. EPA is therefore proposing to 

prohibit mixing zones for bacteria for 

the waters in Indian lands because they 

could result in a significant human 

health risk. 

EPA is not aware of instances where 

DEP has previously authorized mixing 

zones for bioaccumulative pollutants or 

bacteria, and therefore EPA does not 

expect that these prohibitions will pose 

hardship to existing dischargers. 

The proposed rule also establishes a 

number of restrictions to protect 

designated uses, such as requirements 

that the mixing zone be unlikely to 

jeopardize the continued existence of 

any endangered or threatened species 

listed under section 4 of the Endangered 

Species Act or result in the destruction 

or adverse modification of such species’ 

critical habitat; not extend to drinking 

water intakes or sources; not cause 

significant human health risks; not 

endanger critical areas such as breeding 

and spawning grounds, habitat for statelisted threatened or endangered species, 

areas with sensitive biota, shellfish 

beds, fisheries, and recreational areas; 

not result in lethality to mobile, 

migrating, and drifting organisms 

passing through or within the mixing 

zone; not overlap with another mixing 

zone; not attract aquatic life; and not 

result in any objectionable color, odor, 

taste, or turbidity. 


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62 Dissolved oxygen values expressed as mg/L are 

equivalent to the same values expressed as ppm. 

63EPA’s recommended criteria for non-early life 

stages are expressed as 30 day mean (6.5 mg/L in 

cold water, 5.5 mg/L in warm water), 7 day mean 

minimum (5.0 mg/L in cold water, 4.0 mg/l in warm 

water), and 1 day minimum (4.0 mg/L in cold 

water, 3.0 mg/L in warm water). From USEPA. 

1986. Quality Criteria for Water 1986, U.S. 

Environmental Protection Agency, Office of Water, 

Washington, DC. EPA 440/5–86–001. Dissolved 

Oxygen section. 

C. Proposed WQS for All Waters in 

Maine 

1. Dissolved Oxygen Criteria for Class A 

Waters 

a. What Did EPA Disapprove? On June 

5, 2015, EPA disapproved Maine’s 

dissolved oxygen (DO) criteria for Class 

A fresh waters, set forth in 38 M.R.S. 

465(2.B), for all waters in Maine, 

including waters in Indian lands. 

Maine’s criteria state that ‘‘The 

dissolved oxygen content of Class A 

waters shall be not less than 7 parts per 

million or 75% of saturation, whichever 

is higher.’’ Maine’s DO criteria for Class 

A fresh waters are protective of all life 

stages of warmwater species and adult 

coldwater species, but are not high 

enough to protect the early life stages of 

coldwater species. Therefore, EPA 

disapproved the criteria because they do 

not protect early life stages of coldwater 

species and, therefore, do not protect 

the full aquatic life designated use. 

b. What Is EPA Proposing? EPA 

proposes year-round DO criteria for 

Class A waters that are identical to 

Maine’s existing criteria (not less than 7 

mg/L or 75% of saturation, whichever is 

higher).62

Maine’s existing year-round criteria 

are higher, and more protective than, 

EPA’s minimum DO recommendations 

for non-early life stages.63 EPA therefore 

proposes the same year-round criteria 

that Maine uses for these waters, in 

deference to Maine’s determination of 

what is necessary to protect non-early 

life stages and to be consistent with 

Maine’s criteria for Class B waters. 

For fish spawning areas in Class A 

waters, for the period of October 1 

through May 14, EPA proposes a 7-day 

mean DO concentration of ≥ 9.5 mg/L 

and a 1-day minimum of ≥ 8 mg/L. 

These proposed criteria to protect more 

sensitive early life stages of coldwater 

species are consistent with EPA’s 304(a) 

criteria recommendations and will 

protect those stages against potentially 

damaging and lethal effects. EPA’s 

proposed criteria for fish spawning 

areas for early life stages are also 

consistent with Maine’s criteria for early 

life stages in Class B waters. 

2. Waiver or Modification of WQS 

a. What Did EPA Disapprove? On June 

5, 2015, for all waters in Maine, EPA 

disapproved 38 M.R.S. 363–D as it 

relates to WQS. Under this law, the DEP 

Commissioner (or designee) may waive 

or modify any provision of Maine’s Title 

38, Chapter 3 (related to the protection 

and improvement of waters), which 

includes WQS, to assist in any oil spill 

response activity conducted in 

accordance with the national or state 

contingency plans, or as otherwise 

directed by the federal on-scene 

coordinator or the Commissioner (or 

designee). 

EPA disapproved this statute as it 

relates to WQS, because it is not 

consistent with the minimum federal 

requirements that must be satisfied in 

order for a state to modify or waive a 

WQS. Specifically, waivers or 

modifications of WQS that would have 

the effect of removing a designated use 

or creating a subcategory of use, 

including waiving or modifying criteria 

necessary to support the use, may occur 

under the CWA only in accordance with 

40 CFR 131.10(g) (which, among other 

things, requires a use attainability 

analysis). Before taking such action, 

states must provide public notice and a 

public hearing, and revised WQS are 

subject to EPA review and approval. 

Because 38 M.R.S. 363–D does not 

contain any of these requirements, EPA 

disapproved it—for WQS purposes 

only—as being inconsistent with federal 

law. 

b. What Is EPA Proposing? EPA 

proposes a regulation that states that 38 

M.R.S. 363–D does not apply to state or 

federal WQS applicable to waters in 

Maine, including designated uses, 

criteria to protect designated uses, and 

antidegradation requirements. The 

proposed regulation would not interfere 

with the Commissioner’s authority to 

modify applicable WQS through the 

removal of a use or establishment of a 

subcategory of a use if justified by a use 

attainability analysis, consistent with 40 

CFR 131.10(g), or to grant a WQS 

variance, consistent with 40 CFR 

131.14. Before taking such actions, the 

Commissioner must provide for public 

notice and a public hearing; and revised 

WQS, including WQS variances, are 

subject to EPA review and approval. 

Maine can still get short-term relief from 

compliance with WQS during oil spills 

through its permitting program. EPA’s 

regulations at 40 CFR 122.3(d) provide 

a limited exception from the need to get 

an NPDES permit, and indirectly, to 

comply with WQS, for ‘‘any discharge 

in compliance with the instructions of 

an On-Scene Coordinator pursuant to 40 

CFR part 300 (The National Oil and 

Hazardous Substances Pollution 

Contingency Plan) or 33 CFR 153.10(e) 

(Pollution by Oil and Hazardous 

Substances).’’ Maine has a similar 

permitting provision at 38 M.R.S. 

413(2–G.B) that it can rely on in such 

circumstances. 

D. Proposed WQS for Waters in Maine 

Outside of Indian Lands 

1. HHC for Phenol Consumption of 

Water Plus Organisms 

a. What Did EPA Disapprove? On 

March 16, 2015, EPA disapproved 

Maine’s phenol criterion for the 

protection of human health 

consumption of water plus organisms, 

in DEP Rule Chapter 584, Appendix A, 

submitted to EPA on January 14, 2013, 

for waters throughout Maine. While DEP 

had based the criterion on EPA’s thencurrent criterion recommendation, DEP 

made an inadvertent mathematical error 

that resulted in a less stringent criterion 

than EPA’s recommendation (10,514 mg/ 

L rather than the correctly computed 

result of 10,267 mg/L). In the absence of 

supporting scientific information to 

justify a finding that the less stringent 

criterion adequately protects the 

designated use, EPA disapproved the 

criterion for all waters in Maine as not 

being protective of the designated use 

and based on sound scientific rationale. 

b. What Is EPA Proposing? In June 

2015, soon after EPA’s March 2015 

disapproval, EPA updated its section 

304(a) recommended criterion for 

phenol as part of a broader package of 

304(a) criteria and identified a 

recommended criterion of 4000 mg/L. 

When promulgating federal criteria, 

EPA bases the criteria on the most upto-date scientific information. 

Consistent with the June 2015 

recommendation, EPA accordingly 

proposes a phenol criterion for the 

protection of human health 

consumption of water plus organisms of 

4000 mg/L for waters in Maine outside 

of Indian lands. This proposed phenol 

criterion is based on EPA’s default 

inputs for relative source contribution, 

body weight, drinking water intake, and 

pollutant-specific reference doses and 

cancer slope factors, discussed in more 

detail in section IV.A.1.a. Since this 

criterion will apply in state waters 

outside of Indian lands, EPA used 

Maine’s default fish consumption rate of 

32.4 g/day, as well as a cancer risk level 

of 10–6 consistent with DEP Rule 

Chapter 584. The FCR reflects local 

survey data, and the CRL is consistent 

with EPA’s recommendation. Therefore, 

the proposed criterion is protective of 

human health in waters in Maine 


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outside of Indian lands, for the reasons 

discussed in EPA’s 2015 criteria update. 

V. Economic Analysis 

These WQS may serve as a basis for 

development of NPDES permit limits. 

Maine has NPDES permitting authority, 

through which it ensures that discharges 

to waters of the state do not cause or 

contribute to an exceedance of WQS. 

EPA evaluated the potential costs to 

NPDES dischargers associated with state 

implementation of EPA’s proposed 

WQS. This analysis is documented in 

the ‘‘Economic Analysis for Proposal of 

Certain Federal Water Quality Standards 

Applicable to Maine,’’ which can be 

found in the record for this rulemaking. 

Any NPDES-permitted facility that 

discharges pollutants for which the 

proposed WQS are more stringent than 

the WQS on which permit limits are 

currently based could potentially incur 

compliance costs. The types of affected 

facilities could include industrial 

facilities and POTWs discharging 

wastewater to surface waters (i.e., point 

sources). EPA attributed to the proposed 

rule only those incremental costs that 

are above the costs associated with 

compliance with water quality based 

effluent limits (WQBELs) in current 

permits. Proposed criteria for pH, 

temperature, ammonia, and all but one 

HHC (for waters in Indian lands), 

proposed criteria for phenol (for state 

waters outside Indian lands), and 

proposed criteria for dissolved oxygen 

(for all state waters) are not expected to 

result in incremental costs to permitted 

dischargers. The cost analysis identifies 

potential costs of compliance with one 

HHC (bis(2-ethylhexyl)phthalate), 

bacteria, and the proposed mixing zone 

policy for waters in Indian lands. 

EPA did not fully evaluate the 

potential for costs to nonpoint sources 

for this preliminary analysis. Very little 

data were available to assess the 

potential for the rule to result in WQS 

exceedances attributable to nonpoint 

sources. It is difficult to model and 

evaluate the potential cost impacts of 

this proposed rule to nonpoint sources 

because they are intermittent, variable, 

and occur under hydrologic or climatic 

conditions associated with precipitation 

events. Finally, legacy contamination 

(e.g., in sediment) may be a source of 

ongoing loading. Atmospheric 

deposition may also contribute loadings 

of the pollutants of concern (e.g., 

mercury). EPA did not estimate 

sediment remediation costs, or air 

pollution controls costs, for this 

preliminary analysis. 

A. Identifying Affected Entities 

EPA identified 33 dischargers to 

waters in Indian lands and their 

tributaries, two facilities that discharge 

phenol to other state waters, and 26 

facilities that discharge to Class A 

waters throughout the state. EPA 

identified 16 point source facilities that 

could incur additional costs as a result 

of this proposed rule. Of these 

potentially affected facilities, eight are 

major dischargers and eight are minor 

dischargers. Two are industrial 

dischargers and the remaining 14 are 

publicly owned treatment works 

(POTWs). EPA did not include general 

permit facilities in its analysis because 

data for such facilities are limited. EPA 

evaluated all of the potentially affected 

facilities. 

B. Method for Estimating Costs 

For the 16 facilities that may incur 

costs, EPA evaluated existing baseline 

permit conditions and potential to 

exceed new effluent limits based on the 

proposed rule. In instances of 

exceedances of projected effluent 

limitations under the proposed criteria, 

EPA determined the likely compliance 

scenarios and costs. Only compliance 

actions and costs that would be needed 

above the baseline level of controls are 

attributable to the proposed rule. 

EPA assumed that dischargers will 

pursue the least cost means of 

compliance with WQBELs. Incremental 

compliance actions attributable to the 

proposed rule may include pollution 

prevention, end-of-pipe treatment, and 

alternative compliance mechanisms 

(e.g., variances). EPA annualized capital 

costs, including study (e.g., variance) 

and program (e.g., pollution prevention) 

costs, over 20 years using a 3% discount 

rate to obtain total annual costs per 

facility. 

C. Results 

Based on the results for the 16 

facilities, EPA estimated a total annual 

cost of approximately $213,000 to $1.0 

million. The low end of the range 

reflects $28,000 in annual pollution 

prevention costs for one facility and 

$185,300 in incremental annual 

operating costs for all POTWs to 

disinfect year-round and for some 

POTWs to dechlorinate year round. The 

high end of the cost range reflects 

incremental annual operating costs of 

$705,200 for all POTWs to both 

disinfect and dechlorinate year-round; 

the maximum estimated annual cost of 

$273,000 to comply with the updated 

mixing zone policy; and $43,096 in 

estimated annual costs for one facility to 

provide end-of-pipe treatment for bis(2- 

ethylhexyl)phthalate. 

If the proposed criteria result in an 

incremental increase in impaired 

waters, resulting in the need for TMDL 

development, there could also be some 

costs to nonpoint sources of pollution. 

EPA had very limited information with 

which to assess potential impacts of the 

proposed revisions on ambient water 

quality. Given the scope of the proposed 

rule on certain waters and pollutants 

(notably toxic pollutants) and existing 

controls on wide-ranging nonpoint 

source pollution sources including in 

statewide TMDLs, EPA determined that 

any incremental costs on nonpoint 

sources are unlikely to be significant. 

VI. 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. The 

proposed rule does not establish any 

requirements directly applicable to 

regulated entities or other sources of 

pollutants. However, these WQS may 

serve as a basis for development of 

NPDES permit limits. Maine has NPDES 

permitting authority, through which it 

ensures that discharges to waters of the 

state do not cause or contribute to an 

exceedance of WQS. In the spirit of 

Executive Order 12866, EPA evaluated 

the potential costs to NPDES dischargers 

associated with state implementation of 

EPA’s proposed criteria. This analysis, 

Economic Analysis for Proposal of 

Certain Federal Water Quality 

Standards Applicable to Maine, is 

summarized in section V of the 

preamble and is available in the docket. 

B. Paperwork Reduction Act 

This action does not impose any 

direct new information collection 

burden under the provisions of the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. Actions to implement these 

WQS could entail additional paperwork 

burden. Burden is defined at 5 CFR 

1320.3(b). This action does not include 

any information collection, reporting, or 

record-keeping requirements. 

C. Regulatory Flexibility Act 

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 


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businesses or small governmental 

jurisdictions, are not directly regulated 

by this rule. This proposed rule will 

thus not impose any requirements on 

small entities. We continue to be 

interested, however, in the potential 

impacts of the proposed rule on small 

entities and welcome comments on 

issues related to such impacts. 

D. Unfunded Mandates Reform Act 

This action contains no federal 

mandates under the provisions of Title 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for state, local, or tribal 

governments or the private sector. As 

these water quality criteria are not selfimplementing, EPA’s action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

Therefore, this action is not subject to 

the requirements of sections 202 or 205 

of the UMRA. This action is also not 

subject to the requirements of section 

203 of UMRA because it contains no 

regulatory requirements that could 

significantly or uniquely affect small 

governments. 

E. Executive Order 13132 

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. 

F. Executive Order 13175 (Consultation 

and Coordination With Indian Tribal 

Governments) 

This action has tribal implications. 

However, it would 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, as described above, the state has 

jurisdiction for setting water quality 

standards for all waters in Indian lands 

in Maine. This rule would affect 

federally recognized Indian tribes in 

Maine because the water quality 

standards being proposed would apply 

to all waters in Indian lands and some 

will also apply to waters outside of 

Indian lands where the sustenance 

fishing designated use established by 30 

M.R.S. 6207(4) and (9) applies, and 

because many of the proposed criteria 

for such waters are protective of the 

sustenance fishing designated use, 

which is based in the Indian claims 

settlement acts in Maine. 

The EPA consulted with tribal 

officials under the EPA Policy on 

Consultation and Coordination with 

Indian Tribes early in the process of 

developing this proposed rule to permit 

them to have meaningful and timely 

input into its development. A summary 

of that consultation is provided in 

‘‘Summary of Tribal Consultations 

Regarding Water Quality Standards 

Applicable to Waters in Indian Lands 

within the State of Maine,’’ which is 

available in the docket for this 

rulemaking. 

G. Executive Order 13045 (Protection of 

Children From Environmental Health 

and Safety Risks) 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA 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. 

The public is invited to submit 

comments or identify peer-reviewed 

studies and data that assess effects of 

early life exposure. 

H. 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. 

I. National Technology Transfer and 

Advancement Act of 1995 

This action does not involve technical 

standards. 

J. Executive Order 12898 (Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations) 

The EPA believes the human health or 

environmental risk addressed by this 

action will not have potential 

disproportionately high and adverse 

human health or environmental effects 

on minority, low-income or indigenous 

populations. 

Conversely, this action would 

increase protection for indigenous 

populations in Maine from 

disproportionately high and adverse 

human health effects. EPA developed 

the criteria included in this proposed 

rule specifically to protect Maine’s 

designated uses, using the most current 

science, including local and regional 

information on fish consumption. 

Applying these criteria to waters in the 

state of Maine will afford a greater level 

of protection to both human health and 

the environment. 

List of Subjects in 40 CFR Part 131 

Environmental protection, Indians— 

lands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Dated: April 11, 2016. 

Gina McCarthy, 

Administrator. 

For the reasons set forth in the 

preamble, EPA proposes to amend 40 

CFR part 131 as follows: 

PART 131—WATER QUALITY 

STANDARDS 

■ 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 

■ 2. Add § 131.43 to read as follows: 

§ 131.43 Maine. 

(a) Human health criteria for toxics 

for waters in Indian lands and for 

waters outside of Indian lands where the 

sustenance fishing designated use 

established by 30 m.r.s. 6207(4) and (9) 

applies. The criteria for toxic pollutants 

for the protection of human health are 

set forth in the following table 1: 

TABLE 1—PROPOSED HUMAN HEALTH CRITERIA

Chemical name CAS No. 

Water & 

organisms 

(μg/L) 

Organisms 

only 

(μg/L) 

1. 1,1,2,2-Tetrachloroethane ....................................................................................................... 79–34–5 0.09 0.2 

2. 2-Trichloroethane ..................................................................................................................... 79–00–5 0.31 0.66 

3. 1,1-Dichloroethylene ................................................................................................................ 75–35–4 300 1000 


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TABLE 1—PROPOSED HUMAN HEALTH CRITERIA—Continued 

Chemical name CAS No. 

Water & 

organisms 

(μg/L) 

Organisms 

only 

(μg/L) 

4. 1,2,4,5-Tetrachlorobenzene ..................................................................................................... 95–94–3 0.002 0.002 

5. 1,2,4-Trichlorobenzene ............................................................................................................ 120–82–1 0.0056 0.0056 

6. 1,2-Dichlorobenzene ................................................................................................................ 95–50–1 200 300 

7. 1,2-Dichloropropane ................................................................................................................ 78–87–5 ........................ 2.3 

8. 1,2-Diphenylhydrazine ............................................................................................................. 122–66–7 0.01 0.02 

9. 1,2-Trans-Dichloroethylene ..................................................................................................... 156–60–5 90 300 

10. 1,3-Dichlorobenzene .............................................................................................................. 541–73–1 1 1 

11. 1,3-Dichloropropene .............................................................................................................. 542–75–6 0.21 0.87 

12. 1,4-Dichlorobenzene .............................................................................................................. 106–46–7 ........................ 70 

13. 2,4,5-Trichlorophenol ............................................................................................................. 95–95–4 40 40 

14. 2,4,6-Trichlorophenol ............................................................................................................. 88–06–2 0.20 0.21 

15. 2,4-Dichlorophenol ................................................................................................................. 120–83–2 4 4 

16. 2,4-Dimethylphenol ................................................................................................................ 105–67–9 80 200 

17. 2,4-Dinitrophenol ................................................................................................................... 51–28–5 9 30 

18. 2,4-Dinitrotoluene .................................................................................................................. 121–14–2 0.036 0.13 

19. 2-Chloronaphthalene ............................................................................................................. 91–58–7 90 90 

20. 2-Chlorophenol ...................................................................................................................... 95–57–8 20 60 

21. 2-Methyl-4,6-Dinitrophenol .................................................................................................... 534–52–1 1 2 

22. 3,3’-Dichlorobenzidine ........................................................................................................... 91–94–1 0.0096 0.011 

23. 4,4’-DDD ................................................................................................................................ 72–54–8 9.3E–06 9.3E–06 

24. 4,4’-DDE ................................................................................................................................ 72–55–9 1.3E–06 1.3E–06 

25. 4,4’-DDT ................................................................................................................................ 50–29–3 2.2E–06 2.2E–06 

26. Acenaphthene ........................................................................................................................ 83–32–9 6 7 

27. Acrolein .................................................................................................................................. 107–02–8 3 ........................

28. Aldrin ...................................................................................................................................... 309–00–2 5.8E–08 5.8E–08 

29. alpha-BHC ............................................................................................................................. 319–84–6 2.9E–05 2.9E–05 

30. alpha-Endosulfan ................................................................................................................... 959–98–8 2 2 

31. Anthracene ............................................................................................................................ 120–12–7 30 30 

32. Antimony ................................................................................................................................ 7440–36–0 4.8 45 

33. Benzene ................................................................................................................................. 71–43–2 0.40 1.2 

34. Benzo (a) Anthracene ........................................................................................................... 56–55–3 9.8E–05 9.8E–05 

35. Benzo (a) Pyrene .................................................................................................................. 50–32–8 9.8E–06 9.8E–06 

36. Benzo (b) Fluoranthene ......................................................................................................... 205–99–2 9.8E–05 9.8E–05 

37. Benzo (k) Fluoranthene ......................................................................................................... 207–08–9 0.00098 0.00098 

38. beta-BHC ............................................................................................................................... 319–85–7 0.0010 0.0011 

39. beta-Endosulfan ..................................................................................................................... 33213–65–9 3 3 

40. Bis(2-Chloro-1-Methylethyl) Ether ......................................................................................... 108–60–1 100 300 

41. Bis(2-Chloroethyl) Ether ........................................................................................................ 111–44–4 0.026 0.16 

42. Bis(2-Ethylhexyl) Phthalate ................................................................................................... 117–81–7 0.028 0.028 

43. Bromoform ............................................................................................................................. 75–25–2 4.0 8.7 

44. Butylbenzyl Phthalate ............................................................................................................ 85–68–7 0.0077 0.0077 

45. Carbon Tetrachloride ............................................................................................................. 56–23–5 0.2 0.3 

46. Chlordane .............................................................................................................................. 57–74–9 2.4E–05 2.4E–05 

47. Chlorobenzene ...................................................................................................................... 108–90–7 40 60 

48. Chlorodibromomethane ......................................................................................................... 124–48–1 ........................ 1.5 

49. Chrysene ............................................................................................................................... 218–01–9 ........................ 0.0098 

50. Cyanide .................................................................................................................................. 57–12–5 4 30 

51. Dibenzo (a,h) Anthracene ..................................................................................................... 53–70–3 9.8E–06 9.8E–06 

52. Dichlorobromomethane ......................................................................................................... 75–27–4 ........................ 2 

53. Dieldrin ................................................................................................................................... 60–57–1 9.3E–08 9.3E–08 

54. Diethyl Phthalate ................................................................................................................... 84–66–2 50 50 

55. Dimethyl Phthalate ................................................................................................................ 131–11–3 100 100 

56. Di-n-Butyl Phthalate ............................................................................................................... 84–74–2 2 2 

57. Dinitrophenols ........................................................................................................................ 25550–58–7 10 70 

58. Endosulfan Sulfate ................................................................................................................ 1031–07–8 3 3 

59. Endrin .................................................................................................................................... 72–20–8 0.002 0.002 

60. Endrin Aldehyde .................................................................................................................... 7421–93–4 0.09 0.09 

61. Ethylbenzene ......................................................................................................................... 100–41–4 8.9 9.5 

62. Fluoranthene .......................................................................................................................... 206–44–0 1 1 

63. Fluorene ................................................................................................................................. 86–73–7 5 5 

64. gamma-BHC (Lindane) .......................................................................................................... 58–89–9 0.33 ........................

65. Heptachlor ............................................................................................................................. 76–44–8 4.4E–07 4.4E–07 

66. Heptachlor Epoxide ............................................................................................................... 1024–57–3 2.4E–06 2.4E–06 

67. Hexachlorobenzene ............................................................................................................... 118–74–1 5.9E–06 5.9E–06 

68. Hexachlorobutadiene ............................................................................................................. 87–68–3 0.0007 0.0007 

69. Hexachlorocyclohexane-Technical ........................................................................................ 608–73–1 0.00073 0.00076 

70. Hexachlorocyclopentadiene ................................................................................................... 77–47–4 0.3 0.3 

71. Hexachloroethane .................................................................................................................. 67–72–1 0.01 0.01 

72. Indeno (1,2,3-cd) Pyrene ....................................................................................................... 193–39–5 9.8E–05 9.8E–05 

73. Isophorone ............................................................................................................................. 78–59–1 28 140 


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TABLE 1—PROPOSED HUMAN HEALTH CRITERIA—Continued 

Chemical name CAS No. 

Water & 

organisms 

(μg/L) 

Organisms 

only 

(μg/L) 

74. Methoxychlor ......................................................................................................................... 72–43–5 0.001 ........................

75. Methylene Chloride ................................................................................................................ 75–09–2 ........................ 90 

76. Methylmercury ....................................................................................................................... 22967–92–6 ........................ a 0.02 (mg/kg) 

77. Nickel ..................................................................................................................................... 7440–02–0 20 24 

78. Nitrobenzene ......................................................................................................................... 98–95–3 10 40 

79. Nitrosamines .......................................................................................................................... ........................ 0.0007 0.0322 

80. N-Nitrosodibutylamine ........................................................................................................... 924–16–3 0.0044 0.015 

81. N-Nitrosodiethylamine ........................................................................................................... 55–18–5 0.0007 0.0322 

82. N-Nitrosodimethylamine ........................................................................................................ 62–75–9 0.00065 0.21 

83. N-Nitrosodi-n-propylamine ..................................................................................................... 621–64–7 0.0042 0.035 

84. N-Nitrosodiphenylamine ........................................................................................................ 86–30–6 0.40 0.42 

85. N-Nitrosopyrrolidine ............................................................................................................... 930–55–2 ........................ 2.4 

86. Pentachlorobenzene .............................................................................................................. 608–93–5 0.008 0.008 

87. Pentachlorophenol ................................................................................................................. 87–86–5 0.003 0.003 

88. Phenol .................................................................................................................................... 108–95–2 3,000 20,000 

89. Polychlorinated Biphenyls (PCBs) ......................................................................................... 1336–36–3 b 4.5E–06 b 4.5E–06 

90. Pyrene ................................................................................................................................... 129–00–0 2 2 

91. Selenium ................................................................................................................................ 7782–49–2 21 58 

92. Toluene .................................................................................................................................. 108–88–3 24 39 

93. Toxaphene ............................................................................................................................. 8001–35–2 5.3E–05 5.3E–05 

94. Trichloroethylene ................................................................................................................... 79–01–6 0.3 0.5 

95. Vinyl Chloride ........................................................................................................................ 75–01–4 0.019 0.12 

96. Zinc ........................................................................................................................................ 7440–66–6 300 360 

aThis criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish) and applies equally to fresh and marine waters. bThis criterion applies to total PCBs (e.g., the sum of all congener or isomer or homolog or Aroclor analyses). 

(b) Bacteria criteria for waters in 

Indian lands. (1) The bacteria content of 

Class AA and Class A waters shall be as 

naturally occurs, and the minimum 

number of Escherichia coli bacteria 

shall not exceed a geometric mean of 

100 colony-forming units per 100 

milliliters (cfu/100 ml) in any 30-day 

interval; nor shall 320 cfu/100 ml be 

exceeded more than 10% of the time in 

any 30-day interval. 

(2) In Class B, Class C, and Class GPA 

waters, the number of Escherichia coli 

bacteria shall not exceed a geometric 

mean of 100 colony forming units per 

100 milliliters (cfu/100 ml) in any 30- 

day interval; nor shall 320 cfu/100 ml be 

exceeded more than 10% of the time in 

any 30-day interval. 

(3) The bacteria content of Class SA 

waters shall be as naturally occurs, and 

the number of Enterococcus bacteria 

shall not exceed a geometric mean of 30 

cfu/100 ml in any 30-day interval, nor 

shall 110 cfu/100 ml be exceeded more 

than 10% of the time in any 30-day 

interval. 

(4) In Class SA shellfish harvesting 

areas, the number of total coliform 

bacteria in samples representative of the 

waters in shellfish harvesting areas shall 

not exceed a geometric mean for each 

sampling station of 70 MPN (most 

probable number) per 100 ml, with not 

more than 10% of samples exceeding 

230 MPN per 100 ml for the taking of 

shellfish. 

(5) In Class SB and SC waters, the 

number of Enterococcus bacteria shall 

not exceed a geometric mean of 30 cfu/ 

100 ml in any 30-day interval, nor shall 

110 cfu/100 ml be exceeded more than 

10% of the time in any 30-day interval. 

(c) Ammonia criteria for fresh waters 

in Indian lands. (1) The one-hour 

average concentration of total ammonia 

nitrogen (in mg TAN/L) shall not 

exceed, more than once every three 

years, the criterion maximum 

concentration (i.e., the ‘‘CMC,’’ or 

‘‘acute criterion’’) set forth in Tables 2 

and 3 of this section. 

(2) The thirty-day average 

concentration of total ammonia nitrogen 

(in mg TAN/L) shall not exceed, more 

than once every three years, the 

criterion continuous concentration (i.e., 

the ‘‘CCC,’’ or ‘‘chronic criterion’’) set 

forth in Table 4. 

(3) In addition, the highest four-day 

average within the same 30-day period 

as in 2 shall not exceed 2.5 times the 

CCC, more than once every three years. 

BILLING CODE 6560–50–P 


Lhorne on DSK5TPTVN1PROD with PROPOSALS

EP20AP16.005</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

Table Temperature and pH-Dependent Values ofthe CMC (Acute Criterion Magnitude)-Oncorhynchus spp

Aquatic Life Ambient Water Quality Criteria for Ammonia-Freshwater, EPA 822-R-13-001, Ap

Temperature ("C) 

pH 0-14 15 16 17 18 19 20 21 22 23 24 25 26 2

6.5 33 33 32 29 27 25 23 21 19 18 16 15 14 

6.6 31 31 30 28 26 24 22 20 18 17 16 14 13 

6.7 30 30 29 27 24 22 21 19 18 16 15 14 13 

6.8 28 28 27 25 23 21 20 18 17 15 14 13 12 

6.9 26 26 25 23 21 20 18 17 15 14 13 12 11 

7.0 24 24 23 21 20 18 17 15 14 13 12 11 10 9

7.1 22 22 21 20 18 17 15 14 13 12 11 10 9.3 8

7.2 20 20 19 18 16 15 14 13 12 11 9.8 9.1 8.3 7

7.3 18 18 17 16 14 13 12 11 10 9.5 8.7 8.0 7.4 6

7.4 15 15 15 14 13 12 11 9.8 9.0 8.3 7.7 7.0 6.5 6

7.5 13 13 13 12 11 10 9.2 8.5 7.8 7.2 6.6 6.1 5.6 5

7.6 11 11 11 10 9.3 8.6 7.9 7.3 6.7 6.2 5.7 5.2 4.8 4

7.7 9.6 9.6 9.3 8.6 7.9 7.3 6.7 62 5.7 52 4.8 4.4 4.1 3

7.8 8.1 8.1 7.9 7.2 6.7 6.1 5.6 5.2 4.8 4.4 4.0 3.7 3.4 3

7.9 6.8 6.8 6.6 6.0 5.6 5.1 4.7 4.3 4.0 3.7 3.4 3.1 2.9 2

8.0 5.6 5.6 5.4 5.0 4.6 42 3.9 3.6 3.3 3.0 2.8 2.6 2.4 28.1 4.6 4.6 4.5 4.1 3.8 3.5 3.2 3.0 2.7 2.5 2.3 2.1 2.0 1

8.2 3.8 3.8 3.7 3.5 3.1 2.9 2.7 2.4 2.3 2.1 1.9 1.8 1.6 18.3 3.1 3.1 3.1 2.8 2.6 2.4 2.2 2.0 1.9 1.7 1.6 1.4 1.3 1

8.4 2.6 2.6 2.5 2.3 2.1 2.0 1.8 1.7 1.5 1.4 1.3 1.2 1.1 1

8.5 2.1 2.1 2.1 1.9 1.8 1.6 1.5 1.4 1.3 1.2 1.1 0.98 0.90 0.8

8.6 1.8 1.8 1.7 1.6 1.5 1.3 1.2 1.1 1.0 0.96 0.88 0.81 0.75 0.6

8.7 1.5 1.5 1.4 1.3 1.2 1.1 1.0 0.94 0.87 0.80 0.74 0.68 0.62 0.5

8.8 1.2 1.2 1.2 1.1 1.0 0.93 0.86 0.79 0.73 0.67 0.62 0.57 0.52 0.4

8.9 1.0 1.0 1.0 0.93 0.85 0.79 0.72 0.67 0.61 0.56 0.52 0.48 0.44 0.4

9.0 0.88 0.88 0.86 0.79 0.73 0.67 0.62 0.57 0.52 0.48 0.44 0.41 0.37 0.3

EP20AP16.006</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

Table Temperature and pH-Dependent Values ofthe CMC (Acute Criterion Magnitude)-Oncorhynchus 

Aquatic Life Ambient Water Quality Criteria for Ammonia-Freshwater, EPA 822-R-13-001, A

Temperature CC) 

pH 0-10 

6.5 6.6 

6.7 6.8 

6.9 

7.0 7.1 

7.2 

7.3 

7.4 

7.5 

7.6 7.7 7.8 

7.9 

8.0 

8.1 

8.2 

8.3 

8.4 

8.5 

8.6 8.7 8.8 

8.9 9.0 

51 

49 46 44 

41 

38 34 

31 

27 24 21 

18 

15 13 

11 

8.8 

7.2 

6.0 

4.9 

4.1 

3.3 

2.8 2.3 

1.9 1.6 1.4 

11 12 

48 44 46 42 44 40 

41 38 

38 35 

35 33 

32 30 

29 27 26 24 22 21 

19 18 17 15 14 13 12 11 

9.9 9.1 

8.2 7.6 

6.8 6.3 

5.6 5.2 

4.6 4.3 

3.8 3.5 

3.1 2.9 

2.6 2.4 2.2 2.0 

1.8 1.7 

1.5 1.4 1.3 1.2 

13 14 

41 37 

39 36 37 34 

35 32 

32 30 30 28 

27 25 25 23 22 20 

19 18 17 15 14 13 12 11 10 9.3 

8.4 7.7 

7.0 6.4 

5.8 5.3 

4.8 4.4 

3.9 3.6 

3.2 3.0 

2.7 2.4 2.2 2.0 

1.8 1.7 

1.5 1.4 1.3 1.2 

1.1 1.0 

15 16 17 18 19 

34 32 29 27 25 33 30 28 26 24 

31 29 27 24 22 

30 27 25 23 21 

28 25 23 21 20 

25 23 21 20 18 

23 21 20 18 17 21 19 18 16 15 

18 17 16 14 13 16 15 14 13 12 

14 13 12 11 10 

12 11 10 9.3 8.6 

10 9.3 8.6 7.9 7.3 

8.5 7.9 7.2 6.7 6.1 

7.1 6.6 3.0 5.6 5.1 

5.9 5.4 5.0 4.6 4.2 

4.9 4.5 4.1 3.8 3.5 

4.0 3.7 3.4 3.1 2.9 

3.3 3.1 2.8 2.6 2.4 

2.7 2.5 2.3 2.1 2.0 

2.3 2.1 1.9 1.8 1.6 

1.9 1.7 1.6 1.5 1.3 

1.6 1.4 1.3 1.2 1.1 1.3 1.2 1.1 1.0 0.93 

1.1 1.0 0.93 0.85 0.79 

0.93 0.86 0.79 0.73 0.67 

20 21 22 23 24 25 26 

23 21 19 18 16 15 14 

22 20 18 17 16 14 13 

21 19 18 16 15 14 13 

20 18 17 15 14 13 12 

18 17 15 14 13 12 11 

17 15 14 13 12 11 10 

15 14 13 12 11 10 9.3 

14 13 12 11 9.8 9.1 8.3 12 11 10 9.5 8.7 8.0 7.4 

11 9.8 9.0 8.3 7.7 7.0 6.5 

9.2 8.5 7.8 7.2 6.6 6.1 5.6 

7.9 7.3 6.7 6.2 5.7 5.2 4.8 

6.7 6.2 5.7 5.2 4.8 4.4 4.1 

5.6 5.2 4.8 4.4 4.0 3.7 3.4 

4.7 4.3 4.0 3.7 3.4 3.1 2.9 

3.9 3.6 3.3 3.0 2.8 2.6 2.4 

3.2 3.0 2.7 2.5 2.3 2.1 2.0 

2.7 2.4 2.3 2.1 1.9 1.8 1.6 2.2 2.0 1.9 1.7 1.6 1.4 1.3 

1.8 1.7 1.5 1.4 1.3 1.2 1.1 

1.5 1.4 1.3 1.2 1.1 0.98 0.90 

1.2 1.1 1.0 0.96 0.88 0.81 0.75 

1.0 0.94 0.87 0.80 0.74 0.68 0.62 

0.86 0.79 0.73 0.67 0.62 0.57 0.52 

0.72 0.67 0.61 0.56 0.52 0.48 0.44 

0.62 0.57 0.52 0.48 0.44 0.41 0.37 

EP20AP16.007</GPH>Lhorne on DSK5TPTVN1PROD with PROPOSALS

Table 4. Temperature and pH-Dependent Values ofthe CCC (Chronic Criterion Magnitude). (Figure 6 in Aquati

Quality Criteria for Ammonia-Freshwater, EPA 822-R-13-001, April 2013.) 

Temperature CC) 

6.5 4.9 6.6 4.8 

6.7 4.8 

6.8 4.6 6.9 4.5 

7.0 4.4 7.1 4.2 

7.2 4.0 

7.3 3R 7.4 3.5 

7.5 3.2 

7.6 2.9 7.7 2.6 7.8 2.3 7.9 2.1 

8.0 1.8 

8.1 1.5 

8.2 1.3 

8.3 1.1 

8.4 0.95 

8.5 0.80 

8.6 0.68 

8.7 0.57 

8.8 0.49 

8.9 0.42 

9.0 0.36 

8 

4.6 4.5 4.5 4.4 4.2 4.1 

3.9 3.7 

3.5 3.3 3.0 

2.8 2.4 2.2 

1.9 1.7 1.5 1.2 

1.1 

0.89 0.75 0.64 0.54 0.46 0.39 0.34 

9 10 

4.3 4.1 4.3 4.0 4.2 3.9 4.1 3.8 4.0 3.7 

3.8 3.6 3.7 3.5 3.5 3.3 

3.3 3.1 

3.1 2.9 

2.8 2.7 2.6 2.4 2.3 2.2 2.1 1.9 

1.8 1.7 1.6 1.5 1.4 1.3 1.2 1.1 

0.99 0.93 0.84 0.79 0.71 0.67 0.60 0.56 0.51 0.47 0.43 0.40 0.37 0.34 0.32 0.30 

11 

3.8 3.8 3.7 3.6 3.5 3.4 3.2 3.1 

2.9 

2.7 2.5 2.3 2.0 

1.8 1.6 1.4 1.2 1.0 

0.87 0.74 0.62 0.53 0.44 0.38 0.32 0.28 

12 13 14 15 16 

3.6 3.3 3.1 2.9 2.8 

3.5 3.3 3.1 2.9 2.7 3.5 3.2 3.0 2.8 2.7 3.4 3.2 3.0 2.8 2.6 3.3 3.1 2.9 2.7 2.5 

3.2 3.0 2.8 2.6 2.4 3.0 2.8 2.7 2.5 2.3 

2.9 2.7 2.5 2.4 2.2 

2.7 2.6 2.4 2.2 2.1 

2.5 2.4 2.2 2.1 2.0 2.3 2.2 2.1 1.9 1.8 2.1 2.0 1.9 1.8 1.6 

1.9 1.8 1.7 1.6 1.5 1.7 1.6 1.5 1.4 1.3 

1.5 1.4 1.3 1.2 1.2 1.3 1.2 1.1 1.1 1.0 

1.1 1.1 0.99 0.92 0.87 

0.96 0.90 0.84 0.79 0.74 0.82 0.76 0.72 0.67 0.63 0.69 0.65 0.61 0.57 0.53 0.58 0.55 0.51 0.48 0.45 0.49 0.46 0.43 0.41 0.38 

0.42 0.39 0.37 0.34 0.32 

0.35 0.33 0.31 0.29 0.27 

0.30 0.28 0.27 0.25 0.23 0.26 0.24 0.23 0.21 0.20 

17 18 19 20 21 22 23 24 25 

2.6 2.4 2.3 2.1 2.0 1.9 1.8 1.6 1.5 

2.5 2.4 2.2 2.1 2.0 1.8 1.7 1.6 1.5 

2.5 2.3 2.2 2.1 1.9 1.8 1.7 1.6 1.5 

2.4 2.3 2.1 2.0 1.9 1.8 1.7 1.6 1.5 

2.4 2.2 2.1 2.0 1.8 1.7 1.6 1.5 1.4 2.3 2.2 2.0 1.:.2 1.8 1.7 1.6 1.5 1.4 2.2 2.1 1.9 1.8 1.7 1.6 1.5 1.4 1.3 

2.1 2.0 1.8 1.7 1.6 1.5 1.4 1.3 1.3 

2.0 1.8 1.7 1.6 1.5 1.4 1.3 1.3 1.2 

u; 1.7 1.6 1.5 1.4 1.3 1.3 1.2 1.1 

1.7 1.6 1.5 1.4 1.3 1.2 1.2 1.1 1.0 0

1.5 1.4 1.4 1.3 1.2 1.1 1.1 0.98 092 0

1.4 1.3 1.2 1.1 1.1 1.0 0.94 0.88 0.83 0

1.2 1.2 1.1 1.0 0.95 0.89 0.84 0.79 0.74 0

1.1 1.0 0.95 0.89 0.84 0.79 0.74 0.69 0.65 0

0.94 0.88 0.83 0.78 0.73 0.68 0.64 0.60 0.56 0

0.81 0.76 0.71 0.67 0.63 0.59 0.55 0.52 0.49 0

0.70 0.65 0.61 0.57 0.54 0.50 0.47 0.44 0.42 00.59 0.55 0.52 0.49 0.46 0.43 0.40 0.38 0.35 00.50 0.47 0.44 0.41 0.39 0.36 0.34 0.32 0.30 00.42 0.40 0.37 0.35 0.33 0.31 0.29 0.27 0.25 00.36 0.33 0.31 0.29 0.28 0.26 0.24 0.23 0.21 00.30 0.28 0.27 0.25 0.23 0.22 0.21 0.19 0.18 00.26 0.24 0.23 0.21 0.20 0.19 0.17 0.16 0.15 00.22 0.21 0.19 0.18 0.17 0.16 0.15 0.14 0.13 00.19 0.18 0.17 0.16 0.15 0.14 0.13 0.12 0.11 0
23266 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules 

(d) pH criteria for fresh waters in 

Indian lands. The pH of fresh waters 

shall fall within the range of 6.5 to 8.5. 

(e) Temperature criteria for tidal 

waters in Indian lands. (1) The 

maximum acceptable cumulative 

increase in the weekly average 

temperature resulting from all artificial 

sources is 1 °C (1.8 °F) during all 

seasons of the year, provided that the 

summer maximum is not exceeded. 

(i) Weekly average temperature 

increase shall be compared to baseline 

thermal conditions and shall be 

calculated using the daily maxima 

averaged over a 7-day period. 

(ii) Baseline thermal conditions shall 

be measured at or modeled from a site 

where there is no artificial thermal 

addition from any source, and which is 

in reasonable proximity to the thermal 

discharge (within 5 miles), and which 

has similar hydrography to that of the 

receiving waters at the discharge. 

(2) Natural temperature cycles 

characteristic of the water body segment 

shall not be altered in amplitude or 

frequency. 

(3) During the summer months (for 

the period from May 15 through 

September 30), water temperatures shall 

not exceed a weekly average summer 

maximum threshold of 18 °C (64.4 °F) 

(calculated using the daily maxima 

averaged over a 7-day period). 

(f) Natural conditions provisions for 

waters in Indian lands. (1) The 

provision in Title 38 of Maine Revised 

Statutes 464(4.C) which reads: ‘‘Where 

natural conditions, including, but not 

limited to, marshes, bogs and abnormal 

concentrations of wildlife cause the 

dissolved oxygen or other water quality 

criteria to fall below the minimum 

standards specified in section 465, 465– 

A and 465–B, those waters shall not be 

considered to be failing to attain their 

classification because of those natural 

conditions,’’ does not apply to water 

quality criteria intended to protect 

human health. 

(2) The provision in Title 38 of Maine 

Revised Statutes 420(2.A) which reads 

‘‘Except as naturally occurs or as 

provided in paragraphs B and C, the 

board shall regulate toxic substances in 

the surface waters of the State at the 

levels set forth in federal water quality 

criteria as established by the United 

States Environmental Protection Agency 

pursuant to the Federal Water Pollution 

Control Act, Public Law 92–500, Section 

304(a), as amended,’’ does not apply to 

water quality criteria intended to protect 

human health. 

(g) Mixing zone policy for waters in 

Indian lands—(1) Establishing a mixing 

zone. (i) The Department of 

Environmental Protection 

(‘‘department’’) may establish a mixing 

zone for any discharge at the time of 

application for a waste discharge license 

if all of the requirements set forth in 

paragraphs (g)(2) and (3) of this section 

are satisfied. The department shall 

attach a description of the mixing zone 

as a condition of a license issued for 

that discharge. After opportunity for a 

hearing in accordance with 38 MRS 

section 345–A, the department may 

establish by order a mixing zone with 

respect to any discharge for which a 

license has been issued pursuant to 

section 414 or for which an exemption 

has been granted by virtue of 38 MRS 

section 413, subsection 2. 

(ii) The purpose of a mixing zone is 

to allow a reasonable opportunity for 

dilution, diffusion or mixture of 

pollutants with the receiving waters 

such that an applicable criterion may be 

exceeded within a defined area of the 

waterbody while still protecting the 

designated use of the waterbody as a 

whole. In determining the extent of any 

mixing zone to be established under this 

section, the department will require 

from the applicant information 

concerning the nature and rate of the 

discharge; the nature and rate of existing 

discharges to the waterway; the size of 

the waterway and the rate of flow 

therein; any relevant seasonal, climatic, 

tidal and natural variations in such size, 

flow, nature and rate; the uses of the 

waterways that could be affected by the 

discharge, and such other and further 

evidence as in the department’s 

judgment will enable it to establish a 

reasonable mixing zone for such 

discharge. An order establishing a 

mixing zone may provide that the extent 

thereof varies in order to take into 

account seasonal, climatic, tidal, and 

natural variations in the size and flow 

of, and the nature and rate of, discharges 

to the waterway. 

(2) Mixing zone information 

requirements. At a minimum, any 

request for a mixing zone must: 

(i) Describe the amount of dilution 

occurring at the boundaries of the 

proposed mixing zone and the size, 

shape, and location of the area of 

mixing, including the manner in which 

diffusion and dispersion occur; 

(ii) Define the location at which 

discharge-induced mixing ceases; 

(iii) Document the substrate character 

and geomorphology within the mixing 

zone; 

(iv) Document background water 

quality concentrations; 

(v) Address the following factors: 

(A) Whether adjacent mixing zones 

overlap; 

(B) Whether organisms would be 

attracted to the area of mixing as a result 

of the effluent character; and 

(C) Whether the habitat supports 

endemic or naturally occurring species. 

(vi) Provide all information necessary 

to demonstrate whether the 

requirements in paragraph (g)(3) of this 

section are satisfied. 

(3) Mixing zone requirements. (i) 

Mixing zones shall be established 

consistent with the methodologies in 

Sections 4.3 and 4.4 of the ‘‘Technical 

Support Document for Water Qualitybased Toxics Control’’ EPA/505/2–90– 

001, dated March 1991. 

(ii) The mixing zone demonstration 

shall be based on the assumption that a 

pollutant does not degrade within the 

proposed mixing zone, unless: 

(A) Scientifically valid field studies or 

other relevant information demonstrate 

that degradation of the pollutant is 

expected to occur under the full range 

of environmental conditions expected to 

be encountered; and 

(B) Scientifically valid field studies or 

other relevant information address other 

factors that affect the level of pollutants 

in the water column including, but not 

limited to, resuspension of sediments, 

chemical speciation, and biological and 

chemical transformation. 

(iii) Water quality within an 

authorized mixing zone is allowed to 

exceed chronic water quality criteria for 

those parameters approved by the 

department. Acute water quality criteria 

may be exceeded for such parameters 

within the zone of initial dilution inside 

the mixing zone. Acute criteria shall be 

met as close to the point of discharge as 

practicably attainable. Water quality 

criteria shall not be violated outside of 

the boundary of a mixing zone as a 

result of the discharge for which the 

mixing zone was authorized. 

(iv) Mixing zones shall be as small as 

practicable. The concentrations of 

pollutants present shall be minimized 

and shall reflect the best practicable 

engineering design of the outfall to 

maximize initial mixing. Mixing zones 

shall not be authorized for 

bioaccumulative pollutants or bacteria. 

(v) In addition to the requirements 

above, the department may approve a 

mixing zone only if the mixing zone: 

(A) Is sized and located to ensure that 

there will be a continuous zone of 

passage that protects migrating, freeswimming, and drifting organisms; 

(B) Will not result in thermal shock or 

loss of cold water habitat or otherwise 

interfere with biological communities or 

populations of indigenous species; 

(C) Is not likely to jeopardize the 

continued existence of any endangered 

or threatened species listed under 


Lhorne on DSK5TPTVN1PROD with PROPOSALS
Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules 23267 

section 4 of the ESA or result in the 

destruction or adverse modification of 

such species’ critical habitat; 

(D) Will not extend to drinking water 

intakes and sources; 

(E) Will not otherwise interfere with 

the designated or existing uses of the 

receiving water or downstream waters; 

(F) Will not promote undesirable 

aquatic life or result in a dominance of 

nuisance species; 

(G) Will not endanger critical areas 

such as breeding and spawning grounds, 

habitat for state-listed threatened or 

endangered species, areas with sensitive 

biota, shellfish beds, fisheries, and 

recreational areas; 

(H) Will not contain pollutant 

concentrations that are lethal to mobile, 

migrating, and drifting organisms 

passing through the mixing zone; 

(I) Will not contain pollutant 

concentrations that may cause 

significant human health risks 

considering likely pathways of 

exposure; 

(J) Will not result in an overlap with 

another mixing zone; 

(K) Will not attract aquatic life; 

(L) Will not result in a shore-hugging 

plume; and 

(M) Is free from: 

(1) Substances that settle to form 

objectionable deposits; 

(2) Floating debris, oil, scum, and 

other matter in concentrations that form 

nuisances; and 

(3) Objectionable color, odor, taste, or 

turbidity. 

(h) Dissolved oxygen criteria for class 

A waters throughout the State of Maine, 

including in Indian lands. The 

dissolved oxygen content of Class A 

waters shall not be less than 7 ppm (7 

mg/L) or 75% of saturation, whichever 

is higher, year-round. For the period 

from October 1 through May 14, in fish 

spawning areas, the 7-day mean 

dissolved oxygen concentration shall 

not be less than 9.5 ppm (9.5 mg/L), and 

the 1-day minimum dissolved oxygen 

concentration shall not be less than 8 

ppm (8.0 mg/L). 

(i) Waiver or modification of 

protection and improvement laws for 

waters throughout the State of Maine, 

including in Indian lands. For all waters 

in Maine, the provisions in Title 38 of 

Maine Revised Statutes 363–D do not 

apply to state or federal water quality 

standards applicable to waters in Maine, 

including designated uses, criteria to 

protect existing and designated uses, 

and antidegradation policies. 

(j) Phenol criterion for the protection 

of human health for Maine Waters 

outside of Indian lands. The phenol 

criterion to protect human health for the 

consumption of water and organisms is 

4000 micrograms per liter. 

[FR Doc. 2016–09025 Filed 4–19–16; 8:45 am] 

BILLING CODE 6560–50–C 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 2, 22, 24, 25, 27, 90, 95 

and 101 

[ET Docket No. 15–170; DA 16–348] 

Incorporating the American National 

Standard for Compliance Testing of 

Transmitters Used in Licensed Radio 

Services (ANSI C63.26–2015) Into the 

Commission’s Rules 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: In this document, the 

Commission acknowledges the 

publication of ANSI C63.26–2015 

‘‘American National Standard for 

Compliance Testing of Transmitters 

Used in Licensed Radio Services’’ and 

seeks comment on incorporating it into 

the Commission’s rules by reference as 

part of an open rulemaking proceeding 

that addresses its equipment 

authorization (EA) rules and 

procedures. The standard was recently 

published and is now an ‘‘active 

standard’’—that is, the standards 

association considers it to be valid, 

current, and approved. 

DATES: Submit comments on or before 

May 5, 2016. Reply Comment Date: May 

16, 2016. 

ADDRESSES: Pursuant to sections 1.415 

and 1.419 of the Commission’s rules, 47 

CFR 1.415, 1.419, interested parties may 

file comments and reply comments on 

or before the dates indicated on this 

document. Comments may be filed 

using the Commission’s Electronic 

Comment Filing System (ECFS). See 

Electronic Filing of Documents in 

Rulemaking Proceedings, 63 FR 24121 

(1998). 

Electronic Filers: Comments may be 

filed electronically using the Internet by 

accessing the ECFS: http://

fjallfoss.fcc.gov/ecfs2/. 

Paper Filers: Parties who choose to 

file by paper must file an original and 

one copy of each filing. If more than one 

docket or rulemaking number appears in 

the caption of this proceeding, filers 

must submit two additional copies for 

each additional docket or rulemaking 

number. Filings can be sent by hand or 

messenger delivery, by commercial 

overnight courier, or by first-class or 

overnight U.S. Postal Service mail. All 

filings must be addressed to the 

Commission’s Secretary, Office of the 

Secretary, Federal Communications 

Commission. 

All hand-delivered or messengerdelivered paper filings for the 

Commission’s Secretary must be 

delivered to FCC Headquarters at 445 

12th St. SW., Room TW–A325, 

Washington, DC 20554. The filing hours 

are 8:00 a.m. to 7:00 p.m. All hand 

deliveries must be held together with 

rubber bands or fasteners. Any 

envelopes and boxes must be disposed 

of before entering the building. 

Commercial overnight mail (other 

than U.S. Postal Service Express Mail 

and Priority Mail) must be sent to 9300 

East Hampton Drive, Capitol Heights, 

MD 20743. 

U.S. Postal Service first-class, 

Express, and Priority mail must be 

addressed to 445 12th Street SW., 

Washington DC 20554. People with 

Disabilities: To request materials in 

accessible formats for people with 

disabilities (Braille, large print, 

electronic files, audio format), send an 

email to fcc504@fcc.gov or call the 

Consumer & Governmental Affairs 

Bureau at 202–418–0530 (voice), 202– 

418–0432 (tty). 

Comments, reply comments, and ex 

parte submissions will be available for 

public inspection during regular 

business hours in the FCC Reference 

Center, Federal Communications 

Commission, 445 12th Street SW., CY– 

A257, Washington, DC 20554. These 

documents will also be available via 

ECFS. Documents will be available 

electronically in ASCII, Microsoft Word, 

and/or Adobe Acrobat. 

FOR FURTHER INFORMATION CONTACT: 

Brian Butler, Office of Engineering and 

Technology, (202) 418–2702, email: 

Brian.Butler@fcc.gov, TTY (202) 418– 

2989. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s (Public 

Notice) ET Docket No 15–170, released 

April 1, 2016. The full text of this 

document is available for inspection 

and copying during normal business 

hours in the FCC Reference Center 

(Room CY–A257), 445 12th Street SW., 

Washington, DC 20554. The full text 

may also be downloaded at: 

www.fcc.gov. People with Disabilities: 

To request materials in accessible 

formats for people with disabilities 

(Braille, large print, electronic files, 

audio format), send an email to fcc504@

fcc.gov or call the Consumer & 

Governmental Affairs Bureau at 202– 

418–0530 (voice), 202–418–0432 (tty). 


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