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

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


## 23240 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

1 USEPA. 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

. 2 Final 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:



### T ABLE 

### 1—D ISCHARGERS 

### P OTENTIALLY 

### A FFECTED BY 

### T HIS 

### R ULEMAKING

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. 4 As 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.

5 EPA’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


## 23242 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

6 Because 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). 7 EPA proposes a separate phenol criterion for water plus organisms for the waters in Indian lands.

8 EPA 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


## 23243 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

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. 10 USEPA. 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

.

11 Final 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 dosingstudy 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 20APP1Lhorne on DSK5TPTVN1PROD with PROPOSALS

## 23244 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

12 USEPA. 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.

13 USEPA. 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

.

14 USEPA. 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.

15 USEPA. 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

. 16 USEPA. 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

.

17 USEPA. 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

. 18 USEPA. 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.

19 USEPA. 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.

20 USEPA. 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


## 23245 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

22 Maine’s FCR for all toxic HHC except arsenic is 32.4 g/day, and for arsenic is 138 g/day.

23 http://cfpub.epa.gov/ncea/iris/index.cfm ?fuseaction=iris.showQuickView&substance

_ nmbr=

1012.

24 http://cfpub.epa.gov/ncea/iris/index.cfm ?fuseaction=iris.showQuickView&substance

_ nmbr=1024. 25 Federal Register Vol. 65, No. 97, Thursday, May 18, 2000, Rules and Regulations.

26 After 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.

27 EPA 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


## 23246 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

28 Harper, 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 anddermal 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 withresident 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.



### T ABLE 

### 2—C ONSUMPTION OF 

### A QUATIC 

### R ESOURCES BY 

### L IFESTYLE 

### M ODEL 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 Nationexplained 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


## 23247 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

31 USEPA. 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

.

32 USEPA. 2000. Methodology for Deriving Ambient Water Quality Criteria for the Protection

of Human Health. US Environmental Protection

Agency. pp. 2–6.

33 Final 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

.

34 USEPA. 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

.

35 Final 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

.

36 USEPA. 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

.

37 Final 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

.

38 Final 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. EPArecommends 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


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39 Final 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

. 40 EPA proposes a fish tissue-basedmethylmercury 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 (93organism-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 ( m g/L) except for methylmercury, 40 

### which is expressed as mg/kg in the edible portion of fish.

**BILLING CODE 6560–50–P**


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

Oct. 2–4, 2015); http://www.paddleandchowder. org/ (paddling/kayaking in October)

43 USEPA. 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


## 23255 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

44 USDA. 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

45 USEPA. 2013. Aquatic Life Ambient Water Quality Criteria for Ammonia—Freshwater 2013. United States Environmental Protection Agency, Washington, DC EPA 822–R–13–001 46 USEPA. 1986. Quality Criteria for Water 1986, United States Environmental Protection Agency, Washington, DC. EPA 440/5–86–001, pH section. 47 USEPA. 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 CO 2 

### 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.

54 Cargnelli 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

57 EPA 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 beinfluenced 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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58 USEPA. 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 breedingand 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.

63 EPA’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 m g/ L rather than the correctly computed

result of 10,267 m g/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 m g/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 m g/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. Asthese 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:



### T ABLE 

### 1—P ROPOSED 

### H UMAN 

### H EALTH 

### C RITERIA

Chemical name CAS No. Water & organisms

( μ g/L) Organisms only ( μ g/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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T ABLE 

### 1—P ROPOSED 

### H UMAN 

### H EALTH 

### C RITERIA 

### —Continued

Chemical name CAS No. Water & organisms

( μ g/L) Organisms only ( μ g/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 ......................................................................................... 1 08–60–1 100 300 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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T ABLE 

### 1—P ROPOSED 

### H UMAN 

### H EALTH 

### C RITERIA 

### —Continued

Chemical name CAS No. Water & organisms

( μ g/L) Organisms only ( μ g/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) ......................................................................................... 13 36–36–3 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

a This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish) and applies equally to fresh and marine waters.

b This 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**


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(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 ‘‘TechnicalSupport 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 ofpassage 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


## 23267 Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Proposed Rules

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).