19046 Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Proposed Rules 

307(d)(1)(V) provides that the 

provisions of CAA section 307(d) apply 

to ‘‘such other actions as the 

Administrator may determine.’’ 42 

U.S.C. 7607(d)(1)(V). 

List of Subjects 

40 CFR Part 70 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Intergovernmental 

relations, Reporting and recordkeeping 

requirements. 

40 CFR Part 71 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Reporting and 

recordkeeping requirements. 

Michael Regan, 

Administrator. 

For the reasons stated in the 

preamble, the EPA proposes to amend 

title 40 CFR parts 70 and 71 as follows: 

PART 70—STATE OPERATING PERMIT 

PROGRAMS 

■ 1. The authority citation for part 70 

continues to read as follows: 

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

§ 70.6 [Amended] 

■ 2. In § 70.6, remove and reserve 

paragraph (g). 

PART 71—FEDERAL OPERATING 

PERMIT PROGRAMS 

■ 3. The authority citation for part 71 

continues to read as follows: 

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

§ 71.6 [Amended] 

■ 4. In § 71.6, remove and reserve 

paragraph (g). 

[FR Doc. 2022–06907 Filed 3–31–22; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 131 

[EPA–HQ–OW–2015–0174; FRL–7253.1–01– 

OW] 

RIN 2040–AG21 

Restoring Protective Human Health 

Criteria in Washington 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Proposed rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) has determined that 

Washington’s human health criteria 

(HHC) are not protective of 

Washington’s designated uses and are 

not based on sound scientific rationale 

and, accordingly, is proposing to restore 

protective HHC for Washington’s 

waters. EPA partially approved and 

partially disapproved Washington’s 

HHC in November 2016, and 

simultaneously promulgated federal 

HHC based on sound scientific 

rationale. In May 2019, EPA reversed its 

November 2016 disapproval and 

approved Washington’s HHC, and in 

June 2020 withdrew the 2016 HHC that 

EPA promulgated for Washington. 

Based on the best scientific information 

and analyses currently available, and 

consideration of these past decisions, 

EPA has concluded that Washington’s 

existing HHC are not based on sound 

scientific rationale and are therefore not 

protective of the applicable designated 

uses in Washington. EPA is therefore 

proposing to reinstate the protective and 

science-based federal HHC that EPA 

withdrew in June 2020 to protect 

Washington’s waters, including waters 

where tribes hold treaty-reserved rights 

to fish. 

DATES: Comments must be received on 

or before May 31, 2022. Public Hearing: 

EPA will hold two public hearings 

during the public comment period. 

Please refer to the SUPPLEMENTARY

INFORMATION section for additional 

information on the public hearings. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OW–2015–0174, by any of the following 

methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Standards and Health Protection 

Division Docket, Mail Code 28221T, 

1200 Pennsylvania Avenue NW, 

Washington, DC 20460. 

• Hand Delivery or Courier (by 

scheduled appointment only): EPA 

Docket Center, WJC West Building, 

Room 3334, 1301 Constitution Avenue 

NW, Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal holidays). 

Instructions: All submissions received 

must include the Docket ID No. EPA– 

HQ–OW–2015–0174 for this 

rulemaking. Comments received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. For 

detailed instructions on sending 

comments and additional information 

on the rulemaking process, see the 

‘‘Public Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. Out of an abundance of 

caution for members of the public and 

our staff, the EPA Docket Center and 

Reading Room are open to the public by 

appointment only, to reduce the risk of 

transmitting COVID–19. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries 

and couriers may be received by 

scheduled appointment only. For 

further information on EPA Docket 

Center services and the current status, 

please visit us online at https://

www.epa.gov/dockets. 

EPA is offering two public hearings 

on this proposed rulemaking. Refer to 

the SUPPLEMENTARY INFORMATION section 

below for additional information. 

FOR FURTHER INFORMATION CONTACT: 

Erica Fleisig, Office of Water, Standards 

and Health Protection Division (4305T), 

Environmental Protection Agency, 1200 

Pennsylvania Avenue NW, Washington, 

DC 20460; telephone number: (202) 

566–1057; email address: fleisig.erica@

epa.gov. 

SUPPLEMENTARY INFORMATION: This 

proposed rulemaking is organized as 

follows: 

I. Public Participation 

A. Written Comments 

B. Public Hearings 

II. General Information 

A. Does this action apply to me? 

III. Background 

A. Statutory and Regulatory Background 

B. General Recommended Approach for 

Deriving Human Health Criteria 

C. Prior EPA Actions Related to 

Washington’s Human Health Criteria 

IV. Administrator’s Determination That New 

or Revised HHC are Necessary for 

Washington 

A. Existing Criteria Are Not Protective of 

Designated Uses of Waters in the State of 

Washington 

B. Clean Water Act 303(c)(4)(B) 

Administrator’s Determination 

V. Derivation of Human Health Criteria for 

Washington 

A. Scope of EPA’s Proposal 

B. Washington-Specific Human Health 

Criteria Inputs 

C. Proposed Human Health Criteria for 

Washington 

D. Applicability 

E. Alternative Regulatory Approaches and 

Implementation Mechanisms 

VI. Economic Analysis 

A. Identifying Affected Entities 

B. Method for Estimating Costs to Point 

Sources 

C. Results 

VII. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

B. Paperwork Reduction Act 


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Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Proposed Rules 19047 

1USEPA. 2000. Memorandum 1BWQSP–00–03. 

U.S. Environmental Protection Agency, Office of 

Water, Washington, DC. https://www.epa.gov/sites/ 

production/files/2015-01/documents/standardsshellfish.pdf. 

2 33 U.S.C. 1313(a), (c). 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

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. Public Participation 

A. Written Comments 

Submit your comments, identified by 

Docket ID No. EPA–HQ–OW–2015– 

0174, at https://www.regulations.gov 

(our preferred method), or the other 

methods identified in the ADDRESSES

section. Once submitted, comments 

cannot be edited or removed from the 

docket. EPA may publish any comment 

received to its public docket. Do not 

submit to EPA’s docket at https://

www.regulations.gov any information 

you consider to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. EPA will generally not consider 

comments or comment contents located 

outside of the primary submission (i.e., 

on the web, cloud, or other file sharing 

system). For additional submission 

methods, the full EPA public comment 

policy, information about CBI or 

multimedia submissions, and general 

guidance on making effective 

comments, please visit https://

www.epa.gov/dockets/commenting-epadockets. 

Due to public health concerns related 

to COVID–19, the EPA Docket Center 

and Reading Room are open to the 

public by appointment only. Our Docket 

Center staff also continues to provide 

remote customer service via email, 

phone, and webform. Hand deliveries or 

couriers will be received by scheduled 

appointment only. For further 

information and updates on EPA Docket 

Center services, please visit us online at 

https://www.epa.gov/dockets. 

EPA continues to carefully and 

continuously monitor information from 

the Centers for Disease Control and 

Prevention (CDC), local area health 

departments, and our federal partners so 

that we can respond rapidly as 

conditions change regarding COVID–19. 

B. Public Hearings 

Please note that because of current 

CDC recommendations, as well as state 

and local orders for social distancing to 

limit the spread of COVID–19, EPA 

cannot hold in-person public meetings 

at this time. EPA is offering two online 

public hearings so that interested parties 

may also provide oral comments on this 

proposed rulemaking. For more details 

on the online public hearings and to 

register to attend the hearings, please 

visit https://www.epa.gov/wqs-tech/ 

federal-human-health-criteriawashington-state-waters. 

II. General Information 

A. Does this action apply to me? 

Entities that are subject to Clean 

Water Act (CWA) regulatory programs 

such as industrial facilities, stormwater 

management districts, or publicly 

owned treatment works (POTWs) that 

discharge pollutants to surface waters of 

the United States under the State of 

Washington’s jurisdiction could be 

affected by this rulemaking because the 

federal water quality standards (WQS) 

in this rulemaking, once finalized, will 

be the applicable WQS for surface 

waters in Washington for CWA 

purposes. Categories and entities that 

could potentially be affected by this 

rulemaking include the following: 

Category Examples of potentially affected entities 

Industry ........................................... Industrial point sources discharging pollutants to waters of the United States in Washington. 

Municipalities ................................... Publicly owned treatment works or similar facilities discharging pollutants to waters of the United States in 

Washington. 

Stormwater Management Districts .. Entities responsible for managing stormwater in the State of Washington. 

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. 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. 

III. Background 

A. Statutory and Regulatory Background 

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.’’ EPA 

interprets these CWA Section 101(a)(2) 

goals 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

Consistent with the CWA, EPA’s WQS 

program assigns to states and authorized 

tribes the primary authority for adopting 

WQS.2 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 that 

protect those uses. EPA’s regulations at 

40 CFR 131.11(a)(1) provide that ‘‘[s]uch 

criteria must be based on sound 

scientific rationale and must contain 

sufficient parameters or constituents to 

protect the designated use. For waters 

with multiple use designations, the 

criteria shall support the most sensitive 

designated use.’’ 

Under CWA Section 304(a), EPA 

periodically publishes criteria 

(including HHC) recommendations for 

states to consider when adopting water 

quality criteria for particular pollutants 

to protect CWA Section 101(a) goal uses. 

Where EPA has published 

recommended criteria, states should 

establish numeric water quality criteria 

based on EPA’s CWA Section 304(a) 

criteria recommendations, CWA Section 

304(a) criteria recommendations 

modified to reflect site-specific 

conditions, or other scientifically 

defensible methods (40 CFR 

131.11(b)(1)). 

After a state adopts a new or revised 

WQS, the state must submit it to EPA 

for review and action in accordance 


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19048 Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Proposed Rules 

3 33 U.S.C. 1313(c)(2)(A), (c)(3). 

4 Id. at (c)(4)(B). 

5 40 CFR 131.22(b) 

6 33 U.S.C. 1313(c)(4)(B). 

7USEPA. 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. https://www.epa.gov/sites/default/ 

files/2018-10/documents/methodology-wqcprotection-hh-2000.pdf. 

8 Id. 

9EPA’s 2000 Methodology also states: ‘‘Criteria 

based on a 10¥5 risk level are acceptable for the 

general population as long as states and authorized 

tribes ensure that the risk to more highly exposed 

subgroups (sport fishers or subsistence fishers) does 

not exceed the 10¥4 level.’’ 

10USEPA. Integrated Risk Information System 

(IRIS). U.S. Environmental Protection Agency, 

Office of Research and Development, Washington, 

DC. www.epa.gov/iris. 

11Final Updated Ambient Water Quality Criteria 

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

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

Updated National Recommended Human Health 

Criteria. U.S. Environmental Protection Agency, 

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

www.epa.gov/wqc/human-health-water-qualitycriteria. 

with CWA Section 303(c).3 If EPA 

determines that a state’s new or revised 

WQS is not consistent with the 

requirements of the Act, the state has 90 

days to submit a modified standard. If 

the state fails to adopt a revised WQS 

that EPA approves, CWA Section 

303(c)(4)(A) requires EPA to propose 

and promulgate a revised or new 

standard for the waters involved. In 

addition, CWA Section 303(c)(4)(B) 

grants the EPA Administrator discretion 

to determine ‘‘that a revised or new 

standard is necessary to meet the 

requirements of [the Act].’’ 4 After 

making such a determination, known as 

an Administrator’s Determination,5 the 

agency must ‘‘promptly’’ propose an 

appropriate WQS and finalize it within 

ninety days unless the state adopts an 

acceptable standard in the interim.6

B. General Recommended Approach for 

Deriving Human Health Criteria 

EPA’s 2000 Methodology for Deriving 

Ambient Water Quality Criteria for the 

Protection of Human Health 7 (2000 

Methodology) recommends that HHC be 

designed to reduce 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 a 

criterion for both drinking water 

ingestion and consumption of fish/ 

shellfish from inland and nearshore 

waters combined and a separate 

criterion based on ingestion of fish/ 

shellfish from inland and nearshore 

waters alone. This latter criterion 

applies in cases where the designated 

uses of a waterbody include supporting 

fish/shellfish for human consumption 

but not drinking water supply sources 

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

As discussed in EPA’s 2000 

Methodology, EPA recommends basing 

HHC on two types of toxicological 

endpoints: (1) Carcinogenicity and (2) 

noncancer toxicity (i.e., all adverse 

effects other than cancer). Where 

sufficient data are available, EPA 

derives criteria using both carcinogenic 

and non-carcinogenic toxicity endpoints 

and recommends the lower (i.e., more 

stringent) value. Under the 2000 

Methodology, HHC for carcinogenic 

effects are calculated using the 

following input parameters: Cancer 

slope factor (CSF), cancer risk level 

(CRL), body weight, drinking water 

intake rate, fish consumption rate (FCR), 

and a bioaccumulation factor(s). HHC 

for both non-cancer and nonlinear 

carcinogenic effects are calculated using 

a reference dose (RfD) and relative 

source contribution (RSC) in place of a 

CSF and CRL. The RSC is applied to 

apportion the RfD among the media and 

exposure routes of concern for a 

particular chemical to ensure that an 

individual’s total exposure from all 

exposure sources does not exceed the 

RfD. Each of these inputs is discussed 

in more detail in sections III.B.a through 

III.B.d of this preamble and in EPA’s 

2000 Methodology.8

a. Cancer Risk Level 

EPA’s 2000 Methodology generally 

assumes, in the absence of data to 

indicate otherwise, that carcinogens 

exhibit linear ‘‘non-threshold’’ doseresponses which means that there are no 

‘‘safe’’ or ‘‘no-effect’’ levels. Therefore, 

EPA calculates CWA Section 304(a) 

national recommended HHC for 

carcinogenic effects as pollutant 

concentrations corresponding to lifetime 

increases in the risk of developing 

cancer. EPA calculates its CWA Section 

304(a) national recommended HHC 

values at a 10¥6 (one in one million) 

CRL and recommends CRLs of 10¥6 or 

10¥5 (one in one hundred thousand) for 

the general population.9 EPA notes that 

states and authorized tribes can also 

choose a more stringent risk level, such 

as 10¥7 (one in ten million), when 

deriving HHC. 

b. Cancer Slope Factor and Reference 

Dose 

A dose-response assessment is 

required to understand the quantitative 

relationships between exposure to a 

pollutant and adverse health effects. 

EPA evaluates dose-response 

relationships based on the available data 

from animal toxicity and human 

epidemiological studies to derive doseresponse metrics. For carcinogenic 

effects, EPA uses an oral CSF to derive 

the HHC. The oral CSF is an upper 

bound, approximating a 95 percent 

confidence limit, on the increased 

cancer risk from a lifetime oral exposure 

to a pollutant. For non-carcinogenic 

effects, EPA uses the reference dose 

(RfD) to calculate the HHC. A RfD is an 

estimate of a daily oral exposure of an 

individual to a substance that is likely 

to be without an appreciable risk of 

deleterious effects during a lifetime. A 

RfD is often derived from a laboratory 

animal toxicity multi-dose study from 

which a no-observed-adverse-effect 

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

benchmark dose level can be identified. 

However, human epidemiology studies 

can also be used to derive a RfD. 

Uncertainty factors are applied to 

account for gaps or deficiencies in the 

available data (e.g., differences in 

response among humans) for a 

chemical. For the majority of EPA’s 

latest (2015) updated CWA Section 

304(a) national recommended HHC, 

EPA’s Integrated Risk Information 

System (IRIS) 10 was the source of both 

cancer and noncancer toxicity values 

(i.e., RfD and CSF).11 For some 

pollutants, EPA selected risk 

assessments produced by other EPA 

program offices (e.g., Office of Pesticide 

Programs, Office of Water, Office of 

Land and Emergency Management), 

other national and international 

programs, and state programs. 

c. Exposure Assumptions 

In the 2000 Methodology, EPA states 

that its assumptions ‘‘afford an overall 

level of protection targeted at the high 

end of the general population.’’ Toward 

this end, EPA selects a combination of 

high-end and central tendency inputs to 

the criteria derivation equation and 

avoids ‘‘double counting’’ of exposures 

and combining unlikely co-occurrences. 

Per EPA’s latest CWA Section 304(a) 

national recommended HHC, EPA uses 

a default drinking water intake rate of 

2.4 liters per day (L/day) and default 

rate of 22 grams per day (g/day) for 

consumption of fish and shellfish from 

inland and nearshore waters, multiplied 

by pollutant-specific bioaccumulation 

factors (BAFs) to account for the amount 

of the pollutant in the edible portions of 

the 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 


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Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Proposed Rules 19049 

12USEPA. 2011. EPA Exposure Factors 

Handbook. 2011 edition (EPA 600/R–090/052F). 

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

cfm?deid=236252. 13USEPA. 2014. Estimated Fish Consumption 

Rates for the U.S. Population and Selected 

Subpopulations (NHANES 2003–2010). United 

States Environmental Protection Agency, 

Washington, DC. EPA 820–R–14–002. 

14EPA’s national FCR is based on the total rate 

of consumption of fish and shellfish from inland 

and nearshore waters (including fish and shellfish 

from local, commercial, aquaculture, interstate, and 

international sources). This is consistent with a 

principle that each state does its share to protect 

people who consume fish and shellfish that 

originate from multiple jurisdictions. 

15USEPA. 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. https://www.epa.gov/sites/default/ 

files/2018-10/documents/methodology-wqcprotection-hh-2000.pdf at 5–4. (Explaining that 

‘‘[t]he 1980 Methodology for deriving 304(a) criteria 

for the protection of human health emphasized the 

assessment of bioconcentration (uptake from water 

only) through the use of the BCF . . . The 2000 

Human Health Methodology revisions contained in 

this chapter emphasize the measurement of 

bioaccumulation (uptake from water, sediment, and 

diet) through the use of the BAF.’’). 

16 65 FR 66444 November 3, 2000. 

17USEPA. 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. https://www.epa.gov/sites/default/ 

files/2018-10/documents/methodology-wqcprotection-hh-2000.pdf. 

18USEPA. 2003. Methodology for Deriving 

Ambient Water Quality Criteria for the Protection 

of Human Health (2000). Technical Support 

Document Volume 2: Development of National 

Bioaccumulation Factors. U.S. Environmental 

Protection Agency, Office of Water, Washington, 

DC. EPA–822–B–03–030. https://www.epa.gov/ 

sites/default/files/2018-10/documents/ 

methodology-wqc-protection-hh-2000.pdf. 

19 65 FR 66444 November 3, 2000. 

20Final 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. https://

www.epa.gov/wqc/human-health-water-qualitycriteria. 

21 Id. 

22USEPA. 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. https://www.epa.gov/sites/default/ 

files/2018-10/documents/methodology-wqcprotection-hh-2000.pdf. 

23As noted by the National Environmental Justice 

Advisory Council in the 2002 publication Fish 

Consumption and Environmental Justice, ‘‘a 

suppression effect may arise when fish upon which 

humans rely are no longer available in historical 

quantities (and kinds), such that humans are unable 

to catch and consume as much fish as they had or 

would. Such depleted fisheries may result from a 

variety of affronts, including an aquatic 

environment that is contaminated, altered (due, 

among other things, to the presence of dams), 

overdrawn, and/or overfished. Were the fish not 

depleted, these people would consume fish at more 

robust baseline levels. . . . In the Pacific 

Northwest, for example, compromised aquatic 

ecosystems mean that fish are no longer available 

for tribal members to take, as they are entitled to 

do in exercise of their treaty rights.’’). National 

Environmental Justice Advisory Council, Fish 

Consumption and Environmental Justice, p.44, 46 

(2002) (NEJAC Fish Consumption Report) available 

at https://www.epa.gov/sites/default/files/2015-02/ 

documents/fish-consump-report_1102.pdf. 

at the 90th percentile for adults ages 21 

and older.12 EPA’s national FCR of 22 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 2010.13 14

EPA calculates its CWA Section 304(a) 

national recommended HHC using a 

default body weight of 80 kilograms 

(kg), the average weight of a U.S. adult 

age 21 and older, based on NHANES 

data from 1999 to 2006. 

One reason EPA has determined that 

a subset of Washington’s 2016 HHC are 

inadequate is due to their reliance on 

bioconcentration factors (BCFs) rather 

than BAFs. To provide background for 

our discussion below, the history of the 

agency’s use of BCFs and BAFs is 

reviewed here. Prior to publication of 

the 2000 Methodology, in which EPA 

began recommending the use of BAFs to 

reflect the uptake of a contaminant from 

all sources by fish and shellfish,15 EPA 

relied on bioconcentration factors 

(BCFs) to estimate chemical 

accumulation of waterborne chemicals 

by aquatic organisms. However, BCFs 

only account for chemical accumulation 

in aquatic organisms through exposure 

to chemicals in the water column. In 

2000, EPA noted that ‘‘there has been a 

growing body of scientific knowledge 

that clearly supports the observation 

that bioaccumulation and 

biomagnification occur and are 

important exposure issues to consider 

for many highly hydrophobic organic 

compounds and certain 

organometallics.’’ For that reason, the 

2000 Methodology concluded that ‘‘[f]or 

highly persistent and bioaccumulative 

chemicals that are not easily 

metabolized, BCFs do not reflect what 

the science indicates.’’ 16 EPA’s 2000 

Methodology emphasizes using, when 

data are available, measured or 

estimated BAFs, which account for 

chemical accumulation in aquatic 

organisms from all potential exposure 

routes, including, but not limited to, 

food, sediment, and water.17 This BAFbased approach includes separate 

procedures to be used according to the 

physicochemical properties of the 

chemical. Separate BAFs for each 

trophic level are derived to account for 

potential biomagnification of chemicals 

in aquatic food webs, as well as 

physiological differences among 

organisms that may affect 

bioaccumulation.18

EPA derives national default BAFs, in 

part, as a resource for states and 

authorized tribes with limited resources 

for deriving site-specific BAFs.19 EPA’s 

approach for developing national BAFs 

represents the long-term average 

bioaccumulation potential of a pollutant 

in aquatic organisms that are commonly 

consumed by humans across the United 

States. In the 2015 national CWA 

Section 304(a) HHC update, EPA relied 

on field-measured BAFs and laboratorymeasured BCFs available from peerreviewed, publicly available databases 

to develop national BAFs for three 

trophic levels of fish.20 If this 

information was not available, EPA 

selected octanol-water partition 

coefficients (Kow values) from publicly 

available, published peer-reviewed 

sources for use in calculating national 

BAFs. As an additional line of evidence, 

EPA reported model-estimated BAFs for 

every chemical based on the Estimation 

Program Interface (EPI) Suite to support 

the field-measured or predicted BAFs.21

Although EPA uses national default 

exposure-related input values to 

calculate CWA Section 304(a) national 

recommended criteria, EPA’s 

methodology notes a preference for the 

use of local data, when available, to 

calculate HHC (e.g., locally derived 

FCRs, drinking water intake rates and 

body weights, and waterbody-specific 

bioaccumulation rates) over national 

default values. Using local data helps 

ensure that HHC represent local 

conditions.22 EPA also recommends, 

where sufficient data are available, 

selecting a FCR that reflects 

consumption that is not suppressed by 

fish availability or concerns about the 

safety of available fish.23 Deriving 

criteria 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. Moreover, as 

explained further below, selecting a FCR 

that reflects unsuppressed fish 

consumption could be necessary where 

tribal treaty or other reserved fishing 

rights apply. In such circumstances, if 

sufficient data regarding unsuppressed 

fish consumption levels are unavailable 

or inconclusive, states should consult 

with tribes when deciding which fish 

consumption data should be used in 

selecting an FCR. 


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24 ‘‘[RSC] defines the portion of the total exposure 

that comes from ingestion of water and fish from 

the ambient water body of interest. Other exposure 

information such as that from dietary, inhalation, 

and dermal routes should be considered and 

accounted for as part of the RSC human exposure 

analysis.’’ https://www.epa.gov/wqs-tech/ 

supplemental-module-human-health-ambientwater-quality-criteria. 

25 Id. 

26 80 FR 55,063 (September 14, 2015). 

27 Id. at 55,067. 

28 Id. 

29 Id. at 55,067–68. 

30 Id. at 55,068–69. 

31For PCBs, Washington’s criteria were based on 

a chemical-specific CRL of 2.3 × 10¥5. 

32Letter from Dan D. Opalski, Director, EPA 

Region 10 Office of Water and Watersheds to Maia 

Bellon, Director, Department of Ecology, Re: EPA’s 

Partial Approval/Partial Disapproval of 

Washington’s Human Health Water Quality Criteria 

and Implementation Tools; Enclosure, Technical 

Support Document (November 15, 2016) (2016 

Partial Approval/Partial Disapproval). 

33 81 FR 85417, November 28, 2016. 

34 81 FR 85422–27, November 28, 2016. 

35 2016 Partial Approval/Disapproval at 3. 

36 Id. at 16–17. 

d. Relative Source Contribution 

The inclusion of an RSC factor 24 is 

important for protecting public health. 

When deriving HHC for noncarcinogens and nonlinear carcinogens, 

EPA recommends including an RSC 

factor to account for sources of exposure 

other than drinking water and 

consumption of fish and shellfish from 

inland and nearshore waters. These 

other sources of exposure include ocean 

fish consumption (which is not 

included in EPA’s default national 

FCR), non-fish food consumption (e.g., 

fruits, vegetables, grains, meats, 

poultry), dermal exposure, and 

inhalation exposure. Using an RSC 

ensures that the level of a chemical 

allowed by a water quality criterion, 

when combined with other exposure 

sources, will not result in exposures that 

exceed the RfD and helps prevent 

adverse health effects from exposure to 

a given chemical over a person’s 

lifetime. EPA’s guidance 25 includes an 

approach for determining an 

appropriate RSC for a given pollutant 

ranging in value from 0.2 to 0.8 to 

ensure that drinking water and fish 

consumption alone are not apportioned 

the entirety of the RfD. This approach, 

known as the Exposure Decision Tree, 

considers the adequacy of available 

exposure data, levels of exposure, 

relevant sources/media of exposure, and 

regulatory agendas. As explained below 

in section V.B.d of this preamble, EPA 

made science-based adjustments to the 

application of the RSC in this proposed 

rulemaking to avoid ‘‘double counting’’ 

exposures. Washington’s failure to make 

such adjustments is another reason for 

EPA’s finding that its HHC are 

inadequate. 

C. Prior EPA Actions Related to 

Washington’s Human Health Criteria 

In 1992, EPA promulgated the 

National Toxics Rule (NTR) at 40 CFR 

131.36, establishing chemical-specific 

numeric criteria for 85 priority toxic 

pollutants for 14 states and territories 

(states), including Washington, that 

were not in compliance with the 

requirements of CWA Section 

303(c)(2)(B). Subsequently, when states 

covered by the NTR adopted their own 

criteria for toxic pollutants that were 

consistent with the CWA and EPA’s 

implementing regulations, EPA 

amended the NTR to remove those 

chemical-specific criteria for those 

states. In 2015, Washington was one of 

the states that remained covered by the 

NTR. 

On September 14, 2015, the EPA 

Administrator determined that updated 

HHC for Washington were ‘‘necessary’’ 

pursuant to CWA Section 303(c)(4)(B). 

EPA proposed HHC to protect the health 

of Washington residents, including 

tribes with treaty-reserved rights to 

fish.26 In that proposal, EPA explained 

that the majority of waters under 

Washington’s jurisdiction are subject to 

tribal treaty-reserved fishing rights.27 To 

give effect to such rights in establishing 

revised WQS for Washington waters, 

EPA determined that tribal treaty fishing 

rights ‘‘appropriately must be 

considered when determining which 

criteria are necessary to adequately 

protect Washington’s fish and shellfish 

harvesting designated uses.’’ 28

Specifically, EPA proposed to consider 

the tribal populations exercising their 

legal right to harvest and consume fish 

and shellfish as the general population 

for purposes of deriving protective HHC. 

To this end, EPA proposed HHC based 

on a FCR of 175 g/day and CRL of 10¥6

to reflect consideration of tribal treatyreserved rights, as informed by 

consultation with the tribes and fish 

consumption surveys of tribal 

members.29 In addition to a FCR and 

CRL calculated to ensure protection of 

applicable tribal treaty-reserved rights, 

EPA also utilized other inputs to derive 

the proposed HHC based on the 

agency’s latest science. Specifically, 

EPA calculated the proposed HHC using 

the national trophic level four BAFs and 

updated chemical-specific RSC values 

from its June 2015 CWA Section 304(a) 

criteria updates.30 EPA’s approach to 

deriving HHC using these inputs is 

described further in section III.B. of this 

preamble. 

Before EPA finalized the proposed 

Federal criteria, the State of Washington 

adopted HHC following an extensive 

public process and submitted the 

updated HHC to EPA for review on 

August 1, 2016. The updated HHC 

incorporated some of the new data and 

information from EPA’s June 2015 CWA 

Section 304(a) criteria updates. 

Washington’s HHC were based on the 

same 175 g/day FCR and 10¥6 CRL that 

EPA used to derive the proposed federal 

HHC, with the exception of the CRL for 

polychlorinated biphenyls (PCBs).31

Although Washington used the same 

FCR and CRL as EPA, because WA’s 

HHC did not use BAFs and used an RSC 

of 1, the resulting HHC for the majority 

of pollutants were less stringent than 

the HHC in EPA’s proposed rulemaking. 

On November 15, 2016, EPA partially 

approved and partially disapproved 

Washington’s HHC.32 For the criteria 

that were disapproved, EPA 

concurrently signed a final rule 

promulgating the Federal criteria it had 

proposed in 2015.33 Like EPA’s 2015 

proposal, the 2016 final rule articulated 

EPA’s conclusion that it is necessary 

and appropriate to consider tribal treatyreserved rights within the framework of 

the CWA, and provided a discussion of 

the tribal treaties relevant to the State of 

Washington and applicable case law.34

The 2016 final rule was informed by 

public comment that addressed both the 

proposed criteria and EPA’s 

consideration of tribal treaties, as well 

as consultation with a number of 

federally recognized tribes. 

As explained further in section IV.A 

of this preamble, EPA’s disapproval of 

Washington’s HHC was largely 

predicated on Washington’s use of input 

values that were not reflective of sound 

scientific rationale. In its letter to the 

State, EPA explained that the agency 

‘‘evaluated Washington’s criteria values 

against criteria that EPA determined 

would be protective of the State’s 

designated uses and scientifically 

defensible (e.g., based on appropriate 

bioaccumulation factors (BAFs) and 

protective relative source contribution 

(RSC) values of less than 1).’’ 35 EPA 

found that Washington had not 

demonstrated that the majority of its 

criteria were based on sound scientific 

rationale as required by the CWA and 

EPA’s implementing regulations.36

Specifically for PCBs, EPA found that 

Washington had not provided adequate 

support or analysis to justify its use of 

a chemical-specific CRL (2.3 x 10 5) 

that was less stringent than the CRL 

used for all other pollutants, and did not 

explain how the use of this CRL was 


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37 Id. at 26 (Determining that Washington ‘‘did 

not provide adequate justification for using the 

Washington Department of Health cancer risk level 

for this specific chemical and then adjusting that 

cancer risk level so that the criteria would be 

equivalent to the NTR criteria’’ and ‘‘did not 

demonstrate how the criteria were derived using a 

cancer risk level that is based on scientifically 

sound rationale and protective of applicable 

designated uses, including the tribal subsistence 

fishing portion of the fish and shellfish harvesting 

use as informed by treaty-reserved fishing rights.’’). 

38 Id. at 8. 

39 Id. 

40 Id. 

41Petition submitted by Northwest Pulp and 

Paper Association, America Forest and Paper 

Association, Association of Washington Business, 

Greater Spokane Incorporated, Treated Wood 

Council, Western Wood Preservers Institute, Utility 

Water Act Group and the Washington Farm Bureau. 

42EPA received letters from the Washington State 

Department of Ecology, Washington State Attorney 

General, the Northwest Indian Fisheries 

Commission, the Lower Elwha Klallam Tribe, the 

Nooksack Indian Tribe, the Jamestown S’Klallam 

Tribe, and Earthjustice (on behalf of the Pacific 

Coast Federation of Fishermen’s Associations, 

Institute for Fisheries Resources, and several 

Washington Waterkeepers). 

43May 10, 2019 letter and enclosed Technical 

Support Document from Chris Hladick, Regional 

Administrator, EPA Region 10, to Maia Bellon, 

Director, Department of Ecology, Re: EPA’s Reversal 

of the November 15, 2016 Clean Water Act Section 

303(c) Partial Disapproval of Washington’s Human 

Health Water Quality Criteria and Decision to 

Approve Washington’s Criteria; Withdrawal of 

Certain Federal Water Quality Criteria Applicable to 

Washington, 85 FR 28494 (May 13, 2020). 

44May 10, 2019 letter at pp. 8, 14–15. 

45State of Washington v. U.S. Envt’l Prot. Agency, 

No. 2:19-cv-884–RAJ (W.D. Wash.). 

46Puget Soundkeeper Alliance et al. v. U.S. Envt’l 

Prot. Agency, No. 2:20-cv-907–RAJ (W.D. Wash.). 

47 86 FR 7037 (January 25, 2021). 

48EPA disapproved 143 of Washington’s HHC in 

2016. In 2019, EPA reversed its disapproval of 141 

of those HHC, leaving its disapproval of the two 

HHC for arsenic in place. This rule addresses the 

141 HHC that EPA reversed its decision on in 2019. 

protective of the State’s designated 

uses.37

With respect to the criteria that EPA 

approved, the agency also explained 

that ‘‘while the EPA carefully considers 

the scientific defensibility and 

protectiveness of both the inputs used to 

derive criteria and the resulting criteria 

values, it is ultimately on the criteria 

values that the EPA takes approval or 

disapproval action under CWA Section 

303(c).’’ 38 After evaluating 

Washington’s criteria against criteria 

using appropriate scientific inputs, EPA 

determined that certain of Washington’s 

criteria were as or more stringent than 

scientifically defensible criteria that the 

EPA determined would be protective of 

Washington’s designated uses.39

Accordingly, EPA approved those 

criteria.40

In a petition dated February 21, 2017, 

several regulated entities requested that 

EPA reconsider its November 15, 2016, 

partial disapproval and repeal its 

concurrent promulgation of Federal 

criteria.41 Following the 2017 petition, 

Washington and several federally 

recognized tribes with treaty-reserved 

fishing rights sent letters urging EPA to 

deny the petition and to leave the 

federally promulgated HHC in place.42

Despite objections from the State and 

several tribes, on May 10, 2019, EPA 

granted the 2017 industry petition by 

reversing the agency’s prior partial 

disapproval of certain HHC and 

subsequently issuing a final rule 

withdrawing the federally promulgated 

criteria.43 EPA’s May 10, 2019 approval 

concluded that the State’s reliance on 

scientific inputs that were no longer 

reflective of the latest science was an 

appropriate risk-management 

decision.44 The withdrawal of the 

federal rule went into effect on June 12, 

2020, and as of that date, the HHC 

submitted by Washington on August 1, 

2016 and approved by EPA on May 10, 

2019 were in effect for CWA purposes. 

On June 6, 2019, the State of 

Washington filed a complaint 

challenging the legality of EPA’s May 

2019 decision to reverse its November 

2016 partial disapproval.45 The SaukSuiattle Indian Tribe and Quinault 

Indian Nation subsequently joined 

Washington’s lawsuit as plaintiffintervenors. On June 6, 2020, following 

EPA’s withdrawal of the promulgated 

federal HHC, another lawsuit was filed 

by the Makah Indian Tribe, the Pacific 

Coast Federation of Fishermen’s 

Associations, and environmental groups 

challenging both EPA’s withdrawal of 

the federally promulgated HHC and its 

May 10, 2019 decision to reverse the 

November 2016 partial disapproval.46 In 

September 2020, the Plaintiffs in the 

case filed by the State of Washington 

amended their complaints to also 

challenge EPA’s rule withdrawing the 

federal HHC. 

Consistent with Executive Order 

13990,47 in February 2021, EPA sought 

and was granted an abeyance in both 

cases to conduct an initial review to 

determine whether it intended to 

reconsider the challenged actions. 

During this initial three-month 

abeyance, EPA decided to reconsider 

the challenged actions. Based on its 

initial review of the agency’s prior 

actions, EPA sought a longer abeyance 

from the court, expressing substantial 

concern that Washington’s HHC may 

not be adequately protective and may 

not be based on sound scientific 

rationale. On July 6, 2021, the Court 

granted EPA an abeyance to reconsider 

its prior actions and to propose 

protective HHC for Washington and take 

final action on the proposal within 18 

months. 

IV. Administrator’s Determination That 

New or Revised HHC are Necessary for 

Washington 

For the reasons explained below in 

section IV.A of this preamble, EPA has 

concluded that the Washington HHC 

that EPA disapproved in 2016 and later 

approved in 2019 (the ‘‘2019 

Reconsidered HHC’’) 48 are not based on 

sound scientific rationale and are 

therefore not protective of the 

applicable designated uses in 

Washington. Accordingly, as set forth in 

section IV.B of this preamble, the 

Administrator has determined pursuant 

to CWA Section 303(c)(4)(B) that revised 

HHC are necessary. Pursuant to the 

authority of CWA Section 303(c)(4)(B), 

EPA is proposing new standards for 

Washington waters, as set forth in 

section V of this preamble. 

The agency’s determination and its 

decision to issue the proposed 

rulemaking are based on application of 

the CWA and EPA’s regulations to the 

facts before the agency at this time. In 

reaching the conclusions supporting 

these decisions, the agency has also 

carefully evaluated its 2016 and 2019 

actions on the State’s criteria. 

A. Existing Criteria Are Not Protective of 

Designated Uses of Waters in the State 

of Washington 

EPA has determined that the 2019 

Reconsidered HHC do not protect 

designated uses because the input 

values on which they rely are not 

supported by a sound scientific 

rationale. We review each of those input 

values—namely an RSC value of 1, 

BCFs, and a CRL of 2.3 × 105 for PCBs— 

in turn. 

1. RSC Value: Washington’s use of an 

RSC value of 1 to derive HHC is not 

based on sound scientific rationale as it 

apportions the entire ‘‘safe’’ dose of 

certain chemicals to drinking water and 

fish consumption, ignoring exposures to 

other sources of those chemicals. As 

discussed in section III.B above of this 

preamble, other sources of exposure 

include consumption of ocean fish and 

other foods (e.g., fruits, vegetables, 

grains, meats, poultry), dermal 

exposure, and inhalation exposure, and 

other routes. Washington’s use of an 

RSC of 1 to derive its criteria is based 

on the flawed assumption that 100% of 

human exposure to a pollutant is from 

fish and drinking water from waters that 

are subject to the State’s WQS. Because 

humans are exposed to pollutants 


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49May 10, 2019 letter at p. 19. 

50May 10, 2019 letter at pp. 16–17; see 

Department of Ecology. Washington State Water 

Quality: Human health criteria and implementation 

tools, Overview of key decisions in rule amendment. 

August 2016. Ecology Publication No. 16–10–025, 

p. 37. https://fortress.wa.gov/ecy/publications/ 

documents/1610025.pdf (‘‘The use of an RSC to 

compensate for sources of exposure outside the 

scope of the Clean Water Act when establishing 

HHC is a risk management decision that states need 

to carefully weigh. If the scope of the Clean Water 

Act is limited to addressing potential exposures 

from NPDES- or other Clean Water Act regulated 

discharges to surface water, it could be argued that 

an RSC of less than 1.0 inappropriately expands of 

the scope of what the Clean Water Act would be 

expected to control.’’). 

51From p. 4–16 of the 2000 Methodology: ‘‘A 

number of drinking water contaminants are volatile 

and thus diffuse from water into the air where they 

may be inhaled. In addition, drinking water is used 

for bathing and, thus, there is at least the possibility 

that some contaminants in water may be dermally 

absorbed. Volatilization may increase exposure via 

inhalation and decrease exposure via ingestion and 

dermal absorption. The net effect of volatilization 

and dermal absorption upon total exposure to 

volatile drinking water contaminants is unclear in 

some cases and varies from chemical to chemical. 

Dermal exposures are also important to consider for 

certain population groups, such as children and 

other groups with high soil contact.’’ 

52For example, the 2019 decision states that the 

disapproval decision ‘‘appears to treat the 304(a) 

recommendation to use an RSC range of 0.2–0.8 as 

a requirement’’ and also relied on a Frequently 

Asked Questions document that ‘‘does not have the 

force and effect of law.’’ 

53Final 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. https://

www.epa.gov/wqc/human-health-water-qualitycriteria. 

through other sources of exposure, this 

assumption is scientifically unsound. 

EPA has considered the statements 

made by the agency in its 2019 approval 

of Washington’s HHC. In that approval, 

the agency concluded that the RSC 

value should be ‘‘evaluated . . . in the 

context of the overall HHC package,’’ 

noting that Washington used other 

‘‘conservative’’ inputs such as a FCR of 

175 g/day and a 10 6 CRL.49 After 

careful review, the agency concludes 

that this rationale does not reasonably 

support the conclusion that the State’s 

criteria protect the designated uses and 

are based on sound scientific rationale. 

First, the CRL utilized by the State is 

irrelevant to evaluating the 

reasonableness of the State’s RSC 

because the CRL and RSC are inputs for 

derivation of criteria for mutually 

exclusive categories of pollutants: the 

CRL is an input for deriving criteria for 

carcinogens, whereas the RSC is an 

input for deriving criteria for noncarcinogens. Therefore, the CRL cannot 

offset or compensate for the health risk 

associated with the State’s use of an 

RSC which assumes that 100% of 

human exposure to pollutants is from 

waters covered by the criteria. 

Second, while the State’s use of a FCR 

of 175 g/day more accurately 

represented Washington fish consumers 

than the prior FCR of 6.5 g/day, that 

revision did not take into account risks 

associated with other routes of 

exposure. Given the lack of any other 

criteria derivation components that 

implicitly or explicitly account for other 

sources of exposure discussed above, 

the agency concludes that the State’s 

use of an RSC which ignores other 

sources does not protect designated uses 

and is not based on sound scientific 

rationale. 

When Washington submitted its 

criteria in 2016, it asserted that its RSC 

choice was informed, in part, by the 

conclusion that the CWA has limited 

ability to control sources outside of its 

jurisdiction (i.e., in non-water media).50

The agency has considered the State’s 

assertions and concludes that they do 

not support the conclusion that the 

State’s criteria protect designated uses 

and are based on sound scientific 

rationale. First, as a factual matter, 

several of the other pollutant exposure 

routes that the RSC is intended to 

account for (e.g., dermal exposure, 

inhalation) are impacted by water 

quality.51 Second, and more 

fundamentally, EPA’s longstanding 

approach to determining whether water 

quality criteria protect human health 

considers the totality of exposure which 

can contribute to adverse health effects. 

Even if the CWA does not provide a 

vehicle for addressing other sources of 

exposure, the protection of public 

health requires that those sources be 

accounted for when HHC are 

established. In the agency’s judgment, 

this approach to deriving criteria is 

consistent with and advances the 

CWA’s directive that WQS ‘‘shall be as 

such to protect the public health or 

welfare’’ (CWA Section 303(c)(2)(A)). 

Accordingly, since 2000, EPA has 

recognized the need to account for 

contributions from other sources to 

ensure protection of individuals whose 

exposure could be greater than 

indicated by currently available data 

about exposures from drinking water 

and freshwater and estuarine fish 

consumption. The 2000 Methodology 

recommends that states account for 

unknown sources of exposure and 

additional potential exposures to 

unknown levels from other sources, 

such as ocean fish consumption, food 

consumption other than fish, respiratory 

exposure, and/or dermal exposure. 

While states can and do make risk 

management choices in developing 

criteria, using an RSC value that 

allocates the entirety of exposure to a 

subset of specific pathways directly 

addressed in criteria derivation 

inappropriately disregards the risks 

from other exposure routes. In deriving 

water quality criteria to protect human 

health, an appropriate exercise of risk 

management discretion would be to 

make any necessary adjustments to the 

pollutant-specific RSCs to account for 

state-specific or pollutant-specific 

information about other exposure 

routes. EPA’s 2019 decision reversing 

our 2016 disapproval of a subset of 

Washington’s HHC rested in part on a 

conclusion that the disapproval was 

based solely on Washington’s failure to 

follow EPA’s guidance in setting the 

RSC.52 To be clear, EPA’s guidance 

informs, but does not dictate, EPA’s 

implementation of applicable statutory 

and regulatory requirements. Regarding 

RSC, the guidance recognizes the 

indisputable fact that exposure to 

pollutants through routes other than fish 

consumption can contribute to adverse 

impacts on human health and therefore 

need to be considered to ensure that 

criteria are scientifically sound and 

protect designated uses, as required by 

EPA’s regulations. EPA’s determination 

in this respect rests on the fact that the 

State’s RSC ignores entirely those other 

routes of exposure. 

As explained in section V below of 

this preamble, EPA followed the 

recommended approach in EPA’s 2015 

CWA Section 304(a) national 

recommended HHC to derive the water 

quality criteria in the proposed 

rulemaking, as well as in the final rule 

for Washington in 2016. We have 

applied pollutant-specific RSC values of 

less than or equal to 0.8 for all noncarcinogens and nonlinear 

carcinogens.53 Attributing 80% or less 

of exposure to drinking water or fish 

consumption (i.e., using an RSC value 

less than or equal to 0.8) ensures that an 

individual’s total exposure to a 

contaminant does not exceed the RfD of 

non-carcinogenic and nonlinear 

carcinogenic chemicals. 

2. Use of Bioconcentration Factors 

(BCFs) instead of Bioaccumulation 

Factors (BAFs): Washington used BCFs 

rather than BAFs to calculate its HHC, 

despite the availability of data to derive 

BAFs and EPA’s default recommended 

BAFs. The use of BCFs rather than 

BAFs, where BAF data are available, to 

calculate the HHC is inconsistent with 

sound scientific rationale on the 

bioaccumulation of pollutants. As noted 

in section III.B.c of this preamble, BAFs 

account for the multiple pathways for 

bioaccumulation of a contaminant in an 


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54May 10, 2019 letter at p. 16. 

55 Department of Ecology. Washington State 

Water Quality: Human health criteria and 

implementation tools, Overview of key decisions in 

rule amendment. August 2016. Ecology Publication 

No. 16–10–025, pp. 46–49. https://fortress.wa.gov/ 

ecy/publications/documents/1610025.pdf. 

56May 10, 2019 letter at p. 17. 

57 Department of Ecology. Washington State 

Water Quality: Human health criteria and 

implementation tools, Overview of key decisions in 

rule amendment. August 2016. Ecology Publication 

No. 16–10–025, p. 56. https://fortress.wa.gov/ecy/ 

publications/documents/1610025.pdf. 

58 Department of Ecology. Washington State 

Water Quality: Human health criteria and 

implementation tools, Overview of key decisions in 

rule amendment. August 2016. Ecology Publication 

No. 16–10–025, p. 67. https://fortress.wa.gov/ecy/ 

publications/documents/1610025.pdf. 

59U.S. Department of Health and Human Services 

(HHS). National Toxicology Program. 15th Report 

on Carcinogens. December 21, 2021. https://

ntp.niehs.nih.gov/whatwestudy/assessments/ 

cancer/roc/index.html. 

60https://iris.epa.gov/static/pdfs/0294_

summary.pdf. 

aquatic organism. BCFs only account for 

accumulation of a contaminant through 

water, whereas BAFs account for 

bioaccumulation through food, 

sediment, and water. As a result, the 

magnitude of bioaccumulation by 

aquatic organisms of certain chemicals 

can be substantially greater than the 

magnitude of bioconcentration absorbed 

solely from water. Using BCFs alone can 

therefore underestimate the extent of 

chemical accumulation in aquatic 

organisms, and can, in turn, affect 

human health through harmful exposure 

through fish and shellfish consumption. 

When data to derive BAFs are 

unavailable or inconclusive, it may be 

necessary to use BCFs to provide some 

approximation of pollutant uptake in 

aquatic organisms. Washington did have 

the data needed for the pollutants at 

issue here. Rather than use EPA’s 

national recommended default BAFs or 

develop State-specific BAFs, 

Washington used decades-old national 

default BCFs that were recommended 

prior to the development of its current 

national default recommended BAFs, 

which are available for states to use in 

the absence of local data. Thus, because 

the 2019 Reconsidered HHC are based 

on BCFs even where scientifically 

defensible BAFs are available, they are 

insufficiently protective of 

Washington’s designated uses and 

therefore do not meet the requirements 

of the CWA. 

When EPA approved Washington’s 

HHC in 2019, the agency acknowledged 

that Washington had spent several years 

engaging with stakeholders to develop 

its HHC. EPA’s 2019 approval asserted 

that Washington ‘‘was preparing to 

finalize its proposed HHC based on the 

EPA’s prior recommended BCFs, not the 

new national default BAFs.’’ 54 Because 

of that timing, in 2019 EPA determined 

that Washington’s failure to incorporate 

BAFs was not a reason for disapproval. 

EPA has determined that rationale 

was not well grounded then and should 

not apply now. As discussed above in 

section III.B.c. of this preamble, EPA 

began recommending the use of BAFs, 

rather than BCFs, in its 2000 

Methodology, 15 years prior to its 

issuance of revised criteria 

recommendations in 2015. Furthermore, 

Washington was aware of the agency’s 

scientific judgment that BAFs more 

accurately reflect the total uptake of a 

chemical.55 The 2015 CWA Section 

304(a) recommendations included 

pollutant-specific national default BAFs 

for states and authorized tribes to rely 

on. Even in the absence of these 

national default BAFs, states could still 

develop their own BAFs following 

EPA’s 2000 Methodology. Therefore, not 

only was Washington aware of the 

science supporting the importance of 

using BAFs, it also had the opportunity 

to develop its own BAFs prior to 

developing its revised HHC and 

sufficient notice of EPA’s nationally 

recommended pollutant-specific default 

BAFs. 

In approving Washington’s criteria 

relying on BCFs in 2019, EPA also 

emphasized consideration of the State’s 

prerogative to make its own riskmanagement decisions. This rationale 

improperly accepted Washington’s 

justifications for its use of BCFs as ‘‘risk 

management’’ decisions.56 Washington 

gave four reasons for using BCFs (1) 

BCFs are more closely related to the 

environmental media (water) that is 

regulated under the CWA; (2) BCFs do 

not include as many inputs and 

predictions based on national datasets 

that may not be reflective of 

Washington’s waters; (3) BCFs have 

fewer inputs and less uncertainty; and 

(4) relying on BCFs alone is acceptable 

under the CWA for criteria 

development.57

These justifications are not risk 

management decisions. The first one 

ignores the fact that the other exposure 

pathways taken into account in a BAF— 

food consumed by aquatic organisms 

and sediment—are affected by water 

quality regulated under the CWA. The 

second justification disregards the fact 

that EPA’s national default 

recommended BCFs from 1980 are no 

more reflective of Washington’s waters 

than EPA’s national default 

recommended BAFs from 2015. As for 

the third justification, accounting for 

more exposure pathways may increase 

the inputs in a BAF calculation, and 

therefore potentially increase 

uncertainty. But excluding known 

sources of chemical accumulation in 

aquatic organisms because additional 

inputs have the potential to introduce 

additional uncertainty is not 

scientifically supportable. The fourth 

justification mischaracterizes the use of 

BCFs. EPA used BCFs prior to 2000 but 

now only uses those BCFs when data to 

derive BAFs are unavailable or 

inconclusive. As noted above, while 

states have latitude to make risk 

management decisions in developing 

WQS, in doing so, that discretion does 

not go so far as to permit states to make 

decisions that are not consistent with 

EPA’s regulations which require that 

criteria be based on sound scientific 

rationale (40 CFR 131.11). 

3. PCB Cancer Risk Level (CRL): The 

State-adopted HHC for PCBs are not 

protective of Washington’s designated 

uses because of the selected chemicalspecific CRL, which is not based on a 

sound scientific rationale. Washington 

adopted HHC for PCBs of 0.00017 mg/L 

for both ‘‘water + organism’’ and 

‘‘organism only’’ based on a chemicalspecific CRL of 2.3 × 10¥5. 

Washington’s selected CRL of 2.3 × 

10¥5 is akin to a cancer risk of 

approximately 1 in 43,478, which is a 

greater risk than the 1 in 100,000 or 1 

in 1,000,000 CRLs which are commonly 

used by states and authorized tribes in 

their WQS. For all other pollutants 

except PCBs, Washington used a CRL of 

1 in 1,000,000 or 1 × 10¥6. As explained 

below, Washington’s criteria for PCBs 

do not protect designated uses and are 

not based on sound scientific rationale. 

First, Washington inappropriately 

links the stringency of its CRL with a 

value associated with its fish advisory 

program. In its 2016 submittal, 

Washington explained that ‘‘[t]he 

chemical-specific risk level for PCBs 

was chosen to be consistent with the 

level of risk/hazard in the toxicity factor 

used by the [Washington Department of 

Health] in developing fish 

advisories.’’ 58 The toxicity value that 

the Washington Department of Health 

uses for fish advisories is an RfD for the 

non-cancer impacts of one particular 

mixture of PCBs. Fish advisory 

programs are not bound by the same 

statutory and regulatory obligations as 

WQS. Setting protective HHC for PCBs 

requires evaluating the carcinogenic 

effects of PCBs in addition to the noncancer impacts, since PCBs are 

reasonably anticipated to be a human 

carcinogen.59 EPA has published a 

quantitative estimate of carcinogenic 

risk for PCBs.60 Relying on a risk level 


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61While EPA has determined that fish advisories 

may be used in determining attainment of WQS, 

this is distinct from using such advisories in 

establishing WQS. See Letter from Geoffrey Grubbs, 

USEPA. 2000. (‘‘EPA considers fish and shellfish 

tissue pollutant concentrations a scientifically 

defensible basis for determining attainment of water 

quality standards.’’). 

62https://www.atsdr.cdc.gov/csem/ 

polychlorinated-biphenyls/what_routes.html. 

63 Department of Ecology. Washington State 

Water Quality: Human health criteria and 

implementation tools, Overview of key decisions in 

rule amendment. August 2016. Ecology Publication 

No. 16–10–025, p. 67. https://fortress.wa.gov/ecy/ 

publications/documents/1610025.pdf. 64As described in EPA’s 2016 final Washington 

WQS rule, 81 FR 85422–26, numerous tribes in 

Washington have treaty-reserved rights to fish for 

their subsistence on waters throughout the State. 

EPA found that tribal members consume far greater 

quantities of fish in the exercise of those rights than 

the 6.5 g/day associated with the NTR PCB criteria, 

and accordingly found that those criteria were 

insufficiently protective. See 80 FR 55066. 

65EPA promulgated arsenic HHC for Washington 

in the National Toxics Rule of 1992. EPA’s federal 

rule in 2016 moved the arsenic criteria from 40 CFR 

131.36 to 40 CFR 131.45. 

66EPA is not proposing to change or supersede 

Washington’s HHC for dioxin and thallium that 

EPA approved in 2019. EPA had previously taken 

no action on these pollutants in 2016. 

67See 18 U.S.C. 1151 for definition of Indian 

Country. 

68 Department of Ecology. Washington State 

Water Quality Standards: Human health criteria 

and implementation tools, Overview of key 

decisions in rule amendment. August 2016. Ecology 

Publication no. 16–10–025. 

69Revision of Certain Water Quality Standards 

Applicable to Washington, 81 FR 85417 (November 

28, 2016). 

70 Id. at 85,420; 85,426–428. 

associated solely with an RfD for noncancer impacts used by the state’s fish 

advisory program is thus not a sound 

scientific rationale for HHC that must 

protect against both carcinogenic and 

non-carcinogenic adverse health effects. 

Additionally, fish advisories are 

intended to advise the public where 

current levels of pollution may result in 

designated uses not being met, whereas 

under EPA regulations, water quality 

criteria must be set at levels that 

‘‘protect’’ the designated use (40 CFR 

131.11(a)). Thus, criteria which are 

based in part on impaired water quality 

are not consistent with EPA’s 

regulations.61

Washington’s choice of a less 

protective CRL for PCBs also cannot be 

reconciled with the particular 

characteristics of PCBs in the 

environment and the science underlying 

human exposure to PCBs. PCBs are a 

group of man-made compounds that are 

highly bioaccumulative in aquatic 

organisms and have high environmental 

persistence. Humans are exposed to 

PCBs through fish and shellfish 

consumption, and PCBs can accumulate 

in human tissue, causing adverse health 

effects. The primary source of exposure 

to PCBs is through high-fat foods 62 such 

as higher trophic-level fish. Moreover, 

these higher trophic-level fish are a 

major component of a high fish 

consumers’ diet in Washington. While 

there is no specific CRL mandated by 

EPA regulations, the selected CRL of 2.3 

× 10¥5 is over an order of magnitude 

greater than the CRL Washington uses 

for all other pollutants. Despite the 

particular risks present here, EPA has 

discerned no rationale related to health 

protection or risk management to 

support using a less protective pollutant 

specific CRL for this pollutant, which is 

of particular environmental concern, 

than is otherwise applicable for all other 

pollutants in the State (1 × 10¥6 in 

Washington). 

Finally, Washington’s PCB criteria are 

based on an application of the HHC 

derivation equation that was outcomedeterminative. Washington arrived at 

the PCB CRL by solving for what the 

CRL would be if the body weight and 

FCR inputs into the equation were 

updated and the desired end result was 

the NTR PCB criteria already in effect at 

the time. As noted above, Washington 

began with a CRL based on the level of 

risk/hazard associated with that the 

State uses to develop fish advisories. 

When this CRL, paired with the updated 

body weight and FCR, resulted in 

criteria that were less stringent than the 

NTR PCB criteria, Washington then 

adjusted the CRL to maintain the NTR 

value.63

Thus, Washington’s PCB criteria are 

the same as the PCB criteria in the NTR 

that EPA had determined in 2015 to be 

insufficient because they were based, in 

part, on a FCR of 6.5 g/day that EPA 

concluded was not representative of fish 

consumption in Washington, including 

consumption by tribes with reserved 

rights.64 While the State revised its FCR 

to 175 g/day, its PCB-specific change to 

the CRL offset any additional health 

protection afforded by the FCR 

adjustment and therefore failed to 

remedy EPA’s previous finding that the 

criteria did not adequately protect fish 

consumers in Washington. For the 

reasons above, EPA concludes that 

Washington’s State-adopted HHC 

currently in effect for PCBs are not 

sufficient to protect Washington’s 

designated uses and do not meet the 

requirements of the CWA. 

B. Clean Water Act 303(c)(4)(B) 

Administrator’s Determination 

Because the 2019 Reconsidered HHC, 

which are currently effective for CWA 

purposes in Washington, are not based 

on sound scientific rationale and are not 

protective of the applicable designated 

uses per the CWA and EPA’s regulations 

at 40 CFR 131.11, EPA determines 

under CWA Section 303(c)(4)(B) that 

revised WQS for the protection of 

human health in Washington waters are 

necessary to meet the requirements of 

the CWA. EPA, therefore, proposes to 

revise these HHC for Washington in 

accordance with this CWA Section 

303(c)(4)(B) Administrator’s 

determination, as set forth in section V 

of this preamble. 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 rulemaking, EPA will take 

final agency action on this proposed 

rulemaking. It is at that time that any 

change to the WQS applicable to 

Washington waters for CWA purposes 

would occur. 

V. Derivation of Human Health Criteria 

for Washington 

A. Scope of EPA’s Proposal 

Based on the determination explained 

above, EPA is proposing Federal criteria 

that would supersede the 2019 

Reconsidered HHC. EPA is not 

proposing to change or supersede the 

federal HHC that EPA promulgated for 

arsenic,65 methylmercury, or bis (2- 

chloro-1-methylethyl) ether in 2016 and 

that remain in place for CWA purposes, 

nor Washington’s HHC that EPA 

approved in 2016.66

The HHC in this proposed rulemaking 

would apply to surface waters under the 

State of Washington’s jurisdiction, and 

not to waters within Indian country,67

unless otherwise specified in federal 

law. 

B. Washington-Specific Human Health 

Criteria Inputs 

a. Fish Consumption Rate, Body Weight, 

Drinking Water Intake 

EPA proposes to derive HHC for 

Washington using the same FCR of 175 

g/day, body weight of 80 kg and 

drinking water intake rate of 2.4 L/day 

that Washington used in 2016 68 and 

that EPA used in its 2016 federal rule.69

EPA does not have new data or 

information suggesting a need to revisit 

those choices at this time, and thus is 

applying the same rationale here as the 

agency articulated to support its use of 

those inputs in the 2016 federal rule.70

The agency believes it is important to 

keep these values consistent between 

the HHC in this rule and the other HHC 

that this rule will not impact (i.e., the 

HHC that Washington adopted and EPA 

approved in 2016, and the federal HHC 

that remain in place for arsenic, 

methylmercury, or bis (2-chloro-1- 


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71 Department of Ecology. Washington State 

Water Quality Standards: Human health criteria 

and implementation tools, Overview of key 

decisions in rule amendment. August 2016. Ecology 

Publication no. 16–10–025. 

72Revision of Certain Water Quality Standards 

Applicable to Washington, 81 FR 85417 (November 

28, 2016). 

73For example, there are 7 polycyclic aromatic 

hydrocarbons for which there is new toxicity 

information available since the promulgation of the 

2016 federal rule. Because the CWA Section 304(a) 

criteria development process can take several years, 

EPA is not able to review this information and 

complete this rulemaking by the end of the 18- 

month abeyance. Once EPA has developed updated 

CWA Section 304(a) criteria for these pollutants, the 

State may evaluate its HHC for these pollutants 

(e.g., during a triennial review), adopt new HHC 

based on the CWA Section 304(a) updates, and 

submit these HHC to EPA for review. 

74 Department of Ecology. Washington State 

Water Quality Standards: Human health criteria 

and implementation tools, Overview of key 

decisions in rule amendment. August 2016. Ecology 

Publication no. 16–10–025. 

75Revision of Certain Water Quality Standards 

Applicable to Washington, 81 FR 85417 (November 

28, 2016). 

76EPA 2000 Methodology, p. 2–6. The 

Methodology recommends that states set human 

health criteria CRLs for the target general 

population at either 10¥5 or 10¥6 (p. 2–6) and also 

notes that states and authorized tribes can always 

choose a more stringent risk level, such as 10¥7 (p. 

1–12). 

77 81 FR 85422–26. 

78 In 2016, tribes in Washington State generally 

viewed 175 g/day as a compromise minimum 

consumption rate so long as it is coupled with a 

CRL of 10¥6. 2016 Partial Approval/Disapproval p. 

15. 

79USEPA. 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. https://www.epa.gov/sites/default/ 

files/2018-10/documents/methodology-wqcprotection-hh-2000.pdf. 

80Final 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. https://

www.epa.gov/wqc/human-health-water-qualitycriteria. 

81 Fish Consumption Survey of the Umatilla, Nez 

Perce, Yakama, and Warm Springs Tribes of the 

Columbia River Basin (CRITFC 1994). 

82Revision of Certain Water Quality Standards 

Applicable to Washington, 81 FR 85417 (November 

28, 2016). 

methylethyl) ether), because these 

values are associated with the 

population that the criteria are intended 

to protect and are not pollutant-specific. 

b. Pollutant-Specific Reference Doses 

and Cancer Slope Factors 

EPA proposes to derive HHC for 

Washington using the same reference 

doses and cancer slope factors that 

Washington used in 2016 71 and that 

EPA used in its 2016 federal rule.72

These are the same toxicity values that 

EPA uses in its CWA Section 304(a) 

national recommended HHC. While 

there may be new toxicity information 

available for certain pollutants that is 

not yet reflected in EPA’s CWA Section 

304(a) national recommended HHC, 

such information has not yet been 

reviewed through EPA’s comprehensive 

CWA Section 304(a) criteria 

development process and therefore is 

not incorporated into this proposal.73

See Table 1, columns B1 and B3 for a 

list of EPA’s proposed toxicity factors by 

pollutant. 

c. Cancer Risk Level 

EPA proposes to derive HHC for 

Washington using the same CRL of 10¥6

that Washington used in 2016 74 and 

that EPA used in its 2016 federal rule 75

for all pollutants, including PCBs. 

EPA’s selection of a 10¥6 CRL is 

consistent with EPA’s 2000 

Methodology, which states that EPA 

intends to use the 10¥6 level when 

promulgating water quality criteria for 

states and tribes, which reflects an 

appropriate risk for the general 

population.76 In addition, as noted 

above and in EPA’s 2016 final rule for 

Washington,77 several tribes in 

Washington have treaty-reserved rights 

to fish on waters throughout the State. 

Consistent with those rights, tribal 

members catch and consume fish for 

their subsistence. EPA’s selection of a 

10¥6 CRL is protective of tribal 

members exercising their legal right to 

harvest and consume fish and shellfish 

at subsistence levels.78

Finally, many of Washington’s rivers 

are in the Columbia River basin, 

upstream of Oregon’s portion of the 

Columbia River. Oregon’s criteria for 

PCBs and other pollutants are based on 

a FCR of 175 g/day and a CRL of 10¥6. 

EPA’s proposal to derive HHC for 

Washington using a CRL of 10¥6 along 

with a FCR of 175 g/day helps ensure 

that Washington’s criteria will provide 

for the attainment and maintenance of 

Oregon’s downstream WQS as required 

by 40 CFR 131.10(b). 

d. Relative Source Contribution 

EPA recommends using an RSC for 

non-carcinogens and nonlinear 

carcinogens to account for sources of 

exposure other than drinking water and 

consumption of inland and nearshore 

fish and shellfish (see section III.B.d). In 

2015, after evaluating information on 

chemical uses, properties, occurrences, 

releases to the environment and 

regulatory restrictions, EPA developed 

chemical-specific RSCs for noncarcinogens and nonlinear carcinogens 

ranging from 0.2 (20 percent) to 0.8 (80 

percent) following the Exposure 

Decision Tree approach described in 

EPA’s 2000 Human Health 

Methodology.79 80

When EPA promulgated HHC for 

Washington in 2016, EPA adjusted RSC 

values using a ratio of the national 

dataset characterizing all FCRs versus 

inland and nearshore-only FCRs derived 

from the NHANES dataset. We then 

applied this ratio to the proportion of 

the RfD reserved for inland and 

nearshore fish consumption in the RSC. 

We used this adjustment to account for 

double-counted potential exposure to 

certain chemicals in certain anadromous 

fish species (e.g., salmon). This 

approach involves the following 

assumptions: 

• The pollutant concentrations in 

anadromous fish are the same as those 

in inland and nearshore fish; and 

• the ratio of all fish to inland and 

nearshore fish from NHANES data 

approximates the ratio of inland, 

nearshore, and anadromous fish to just 

inland and nearshore fish from 

Columbia River Inter-Tribal Fish 

Commission (CRITFC) 81 data (since 

CRITFC data were used to derive the 

175 g/day FCR). 

At the 90th percentile rate of 

consumption, the national adult 

consumption rate from NHANES data 

for all fish is 53 g/day and 22 g/day for 

inland and nearshore-only fish, or a 

ratio of 2.4. Applying this to an RSC of 

0.2 yields 0.48, or 0.5 rounding to a 

single decimal place. Because the 175 g/ 

day FCR includes some but not all 

marine species, EPA decided to use this 

approach to adjust the RSC values. 

However, EPA only adjusted RSC values 

to 0.5 for criteria calculations previously 

using an RSC between 0.2 and 0.5. 

Criteria derived using an RSC greater 

than 0.5 remained unchanged. EPA 

proposes to use these same 2016 RSCs 

to derive HHC for Washington in this 

rule, having no new data or information 

to suggest revising RSCs. The inclusion 

of protective RSCs in the development 

of HHC is a science-based decision that 

protects human health by ensuring that 

a person’s exposure to multiple sources 

of a chemical is accounted for. See 

Table 1, column B2 for a list of EPA’s 

proposed RSCs by pollutant. 

e. Pollutant-Specific Bioaccumulation 

Factors 

Where data are available, EPA uses 

BAFs to account for the uptake and 

retention of waterborne chemicals by 

aquatic organisms from all surrounding 

media and to ensure that resulting 

criteria are science-based and protect 

designated uses for human health. As in 

the 2016 federal rule for Washington,82


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83Because the surveyed population upon which 

the 175 g/day FCR is based consumed almost 

exclusively trophic level four fish (i.e., predator fish 

species), EPA proposes to use the trophic level four 

BAF from the 2015 CWA Section 304(a) HHC 

updates in conjunction with the 175 g/day FCR, in 

order to derive protective criteria. See Fish 

Consumption Survey of the Umatilla, Nez Perce, 

Yakama, and Warm Springs Tribes of the Columbia 

River Basin (CRITFC 1994). 

EPA proposes to apply the trophic level 

four BAF from the 2015 CWA Section 

304(a) HHC updates in conjunction with 

the 175 g/day FCR.83 EPA has no new 

data or information to suggest an 

alternative to its 2016 decision to use 

the trophic level four BAF, given that 

the species commonly consumed in 

Washington are trophic level four fish 

(e.g., salmon). Where science-based 

BAFs are not available at this time for 

certain pollutants, EPA proposes to use 

the BCFs that EPA used the last time it 

updated its CWA Section 304(a) 

recommended criteria for those 

pollutants as the best available scientific 

information. See Table 1, columns B4 

and B5 for a list of EPA’s proposed 

bioaccumulation factors by pollutant. 

C. Proposed Human Health Criteria for 

Washington 

EPA proposes 141 HHC for 72 

different pollutants (70 organism-only 

criteria and 71 water-plus-organism 

criteria) to protect the applicable 

designated uses of Washington’s waters 

(see Table 1). The proposed HHC are the 

same criteria that EPA promulgated in 

2016. The water-plus-organism criteria 

in column C1 of Table 1 are the 

applicable criteria for any waters that 

include the Domestic Water use 

(domestic water supply) defined in 

Washington’s WQS (WAC 173–201A– 

600). The organism-only criteria in 

column C2 of Table 1 are the applicable 

criteria for any waters that do not 

include the Domestic Water use 

(domestic water supply) and that 

Washington defines at WAC 173–201A– 

600 and 173–201A–610 as the 

following: 

• Fresh waters—Harvesting (fish 

harvesting), and Recreational Uses; 

• Marine waters—Shellfish 

Harvesting (shellfish—clam, oyster, and 

mussel—harvesting), Harvesting 

(salmonid and other fish harvesting, and 

crustacean and other shellfish—crabs, 

shrimp, scallops, etc.—harvesting), and 

Recreational Uses. 

EPA solicits comment on the criteria 

and the inputs EPA used to derive these 

criteria. 

TABLE 1—EPA PROPOSED HUMAN HEALTH CRITERIA FOR WASHINGTON

A B C 

Chemical CAS No. 

Cancer 

slope factor, 

CSF 

(per mg/ 

kg·d) 

Relative 

source Contribution, 

RSC (-) 

Reference 

dose, RfD 

(mg/kg·d) 

Bio-accumulation 

factor 

(L/kg tissue) 

Bio-concentration 

factor 

(L/kg tissue) 

Water & 

organisms 

(μg/L) 

Organisms 

only 

(μg/L) 

 (B1) (B2) (B3) (B4) (B5) (C1) (C2) 

1. 1,1,1-Trichloroethane ...................... 71556 .................... 0.50 2 10 ............................ 20,000 50,000 

2. 1,1,2,2-Tetrachloroethane ............... 79345 0.2 .................... .................... 8.4 ............................ 0.1 0.3 

3. 1,1,2-Trichloroethane ...................... 79005 0.057 .................... .................... 8.9 ............................ 0.35 0.90 

4. 1,1-Dichloroethylene ....................... 75354 .................... 0.50 0.05 2.6 ............................ 700 4,000 

5. 1,2,4-Trichlorobenzene ................... 120821 0.029 .................... .................... 430 ............................ 0.036 0.037 

6. 1,2-Dichlorobenzene ....................... 95501 .................... 0.50 0.3 82 ............................ 700 800 

7. 1,2-Dichloroethane .......................... 107062 0.0033 .................... .................... 1.9 ............................ 8.9 73 

8. 1,2-Diphenylhydrazine .................... 122667 0.8 .................... .................... 27 ............................ 0.01 0.02 

9. 1,2-Trans-Dichloroethylene ............. 156605 .................... 0.50 0.02 4.7 ............................ 200 1,000 

10. 1,3-Dichlorobenzene ..................... 541731 .................... 0.50 0.002 190 ............................ 2 2 

11. 1,3-Dichloropropene ...................... 542756 0.122 .................... .................... 3.0 ............................ 0.22 1.2 

12. 1,4-Dichlorobenzene ..................... 106467 .................... 0.50 0.07 84 ............................ 200 200 

13. 2,4-Dichlorophenol ........................ 120832 .................... 0.50 0.003 48 ............................ 10 10 

14. 2,4-Dinitrophenol ........................... 51285 .................... 0.50 0.002 4.4 ............................ 30 100 

15. 2-Chloronaphthalene ..................... 91587 .................... 0.80 0.08 240 ............................ 100 100 

16. 2-Methyl-4,6-Dinitrophenol ............ 534521 .................... 0.50 0.0003 10 ............................ 3 7 

17. 4,4’-DDD ....................................... 72548 0.24 .................... .................... 240,000 ............................ 7.9E–06. 7.9E–06 

18. 4,4’-DDE ........................................ 72559 0.167 .................... .................... 3,100,000 ............................ 8.8E–07 8.8E–07 

19. 4,4’-DDT ........................................ 50293 0.34 .................... .................... 1,100,000 ............................ 1.2E–06 1.2E–06 

20. Acenaphthene ............................... 83329 .................... 0.50 0.06 510 ............................ 30 30 

21. Aldrin ............................................. 309002 17 .................... .................... 650,000 ............................ 4.1E–08 4.1E–08 

22. alpha-BHC ..................................... 319846 6.3 .................... .................... 1,500 ............................ 4.8E–05 4.8E–05 

23. alpha-Endosulfan .......................... 959988 .................... 0.50 0.006 200 ............................ 6 7 

24. Anthracene .................................... 120127 .................... 0.50 0.3 610 ............................ 100 100 

25. Antimony ....................................... 7440360 .................... 0.50 0.0004 ............................ 1 6 90 

26. Benzo(a) Anthracene .................... 56553 0.73 .................... .................... 3,900 ............................ 0.00016 0.00016 

27. Benzo(a) Pyrene ........................... 50328 7.3 .................... .................... 3,900 ............................ 1.6E–05 1.6E–05 

28. Benzo(b) Fluoranthene ................. 205992 0.73 .................... .................... 3,900 ............................ 0.00016 0.00016 

29. Benzo(k) Fluoranthene ................. 207089 0.073 .................... .................... 3,900 ............................ 0.0016 0.0016 

30. beta-BHC ...................................... 319857 1.8 .................... .................... 180 ............................ 0.0013 0.0014 

31. Bis(2-Ethylhexyl) Phthalate ........... 117817 0.014 .................... .................... 710 ............................ 0.045 0.046 

32. Bromoform .................................... 75252 0.0045 .................... .................... 8.5 ............................ 4.6 12 

33. Butylbenzyl Phthalate ................... 85687 0.0019 .................... .................... 19,000 ............................ 0.013 0.013 

34. Chlordane ...................................... 57749 0.35 .................... .................... 60,000 ............................ 2.2E–05 2.2E–05 

35. Chlorobenzene .............................. 108907 .................... 0.50 0.02 22 ............................ 100 200 

36. Chlorodibromomethane ................. 124481 0.04 .................... .................... 5.3 ............................ 0.60 2.2 

37. Chloroform .................................... 67663 .................... 0.50 0.01 3.8 ............................ 100 600 

38. Chrysene ....................................... 218019 0.0073 .................... .................... 3,900 ............................ 0.016 0.016 

39. Cyanide ......................................... 57125 .................... 0.50 0.0006 ............................ 1 9 100 

40. Dibenzo(a,h) Anthracene .............. 53703 7.3 .................... .................... 3,900 ............................ 1.6E–05. 1.6E–05 

41. Dichlorobromomethane ................. 75274 0.034 .................... .................... 4.8 ............................ 0.73 2.8 

42. Dieldrin .......................................... 60571 16 .................... .................... 410,000 ............................ 7.0E–08 7.0E–08 

43. Diethyl Phthalate ........................... 84662 .................... 0.50 0.8 920 ............................ 200 200 

44. Dimethyl Phthalate ........................ 131113 .................... 0.50 10 4,000 ............................ 600 600 


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84 If a state or authorized tribe adopts a new or 

revised WQS based on a required use attainability 

analysis, then it must also adopt the highest 

attainable use (40 CFR 131.10(g)). The highest 

attainable use is the modified aquatic life, wildlife, 

or recreation use that is both closest to the uses 

Continued 

TABLE 1—EPA PROPOSED HUMAN HEALTH CRITERIA FOR WASHINGTON—Continued 

A B C 

Chemical CAS No. 

Cancer 

slope factor, 

CSF 

(per mg/ 

kg·d) 

Relative 

source Contribution, 

RSC (-) 

Reference 

dose, RfD 

(mg/kg·d) 

Bio-accumulation 

factor 

(L/kg tissue) 

Bio-concentration 

factor 

(L/kg tissue) 

Water & 

organisms 

(μg/L) 

Organisms 

only 

(μg/L) 

 (B1) (B2) (B3) (B4) (B5) (C1) (C2) 

45. Di-n-Butyl Phthalate ...................... 84742 .................... 0.50 0.1 2,900 ............................ 8 8 

46. Endosulfan Sulfate ........................ 1031078 .................... 0.50 0.006 140 ............................ 9 ........................

47. Endrin ............................................ 72208 .................... 0.80 0.0003 46,000 ............................ 0.002 0.002 

48. Ethylbenzene ................................ 100414 .................... 0.50 0.022 160 ............................ 29 31 

49. Fluoranthene ................................. 206440 .................... 0.50 0.04 1,500 ............................ 6 6 

50. Fluorene ........................................ 86737 .................... 0.50 0.04 710 ............................ 10 10 

51. gamma-BHC; Lindane .................. 58899 .................... 0.50 0.0047 2,500 ............................ 0.43 0.43 

52. Heptachlor ..................................... 76448 4.1 .................... .................... 330,000 ............................ 3.4E–07 3.4E–07 

53. Heptachlor Epoxide ....................... 1024573 5.5 .................... .................... 35,000 ............................ 2.4E–06 2.4E–06 

54. Hexachlorobenzene ...................... 118741 1.02 .................... .................... 90,000 ............................ 5.0E–06 5.0E–06 

55. Hexachlorobutadiene .................... 87683 0.04 .................... .................... 1,100 ............................ 0.01 0.01 

56. Hexachlorocyclopentadiene .......... 77474 .................... 0.50 0.006 1,300 ............................ 1 1 

57. Hexachloroethane ......................... 67721 0.04 .................... .................... 600 ............................ 0.02 0.02 

58. Indeno(1,2,3-cd) Pyrene ............... 193395 0.73 .................... .................... 3,900 ............................ 0.00016 0.00016 

59. Methyl Bromide ............................. 74839 .................... 0.50 0.02 1.4 ............................ 300 ........................

60. Methylene Chloride ....................... 75092 0.002 .................... .................... 1.6 ............................ 10 100 

61. Nickel ............................................ 7440020 .................... 0.50 0.02 ............................ 47 80 100 

62. Nitrobenzene ................................. 98953 .................... 0.50 0.002 3.1 ............................ 30 100 

63. Pentachlorophenol (PCP) ............. 87865 0.4 .................... .................... 520 ............................ 0.002 0.002 

64. Phenol ........................................... 108952 .................... 0.50 0.6 1.9 ............................ 9,000 70,000 

65. Polychlorinated Biphenyls (PCBs) ................ 2 .................... .................... ............................ 31,200 a7E–06 a7E–06 

66. Pyrene ........................................... 129000 .................... 0.50 0.03 860 ............................ 8 8 

67. Selenium ....................................... 7782492 .................... 0.50 0.005 ............................ 4.8 60 200 

68. Tetrachloroethylene ...................... 127184 0.0021 .................... .................... 76 ............................ 2.4 2.9 

69. Toluene ......................................... 108883 .................... 0.50 0.0097 17 ............................ 72 130 

79. Trichloroethylene ........................... 79016 0.05 .................... .................... 13 ............................ 0.3 0.7 

71. Vinyl Chloride ................................ 75014 1.5 .................... .................... 1.7 ............................ .................. 0.18 

72. Zinc ............................................... 7440666 .................... 0.50 0.3 ............................ 47 1,000 1,000 

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

D. Applicability 

Under the CWA, Congress gave states 

primary responsibility for developing 

and adopting WQS for their navigable 

waters (CWA Section 303(a)–(c)). 

Although EPA is proposing revised HHC 

for Washington, Washington continues 

to have the option to adopt and submit 

to EPA revised HHC for the State’s 

waters consistent with CWA Section 

303(c) and EPA’s implementing 

regulations at 40 CFR part 131. 

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

if Washington adopts and submits 

revised HHC and EPA approves such 

criteria before finalizing this proposed 

rulemaking, EPA would not proceed 

with the final rule for those waters 

and/or pollutants for which EPA 

approves Washington’s criteria. 

If EPA finalizes this proposed 

rulemaking, and Washington 

subsequently adopts and submits new 

HHC, EPA’s federally promulgated 

criteria will remain applicable for 

purposes of the CWA until EPA 

withdraws the federally promulgated 

criteria. EPA would undertake such a 

rulemaking to withdraw the Federal 

criteria if and when Washington adopts 

and EPA approves corresponding 

criteria that meet the requirements of 

Section 303(c) of the CWA and EPA’s 

implementing regulations at 40 CFR part 

131. 

E. Alternative Regulatory Approaches 

and Implementation Mechanisms 

The federal WQS regulation at 40 CFR 

part 131 provides several tools that 

Washington has available to use at its 

discretion when implementing or 

deciding how to implement these HHC, 

once finalized. Among other things, 

EPA’s WQS regulation: (1) Specifies 

how states and authorized tribes 

establish, modify, or remove designated 

uses (40 CFR 131.10); (2) specifies the 

requirements for establishing criteria to 

protect designated uses, including 

criteria modified to reflect site-specific 

conditions (40 CFR 131.11); (3) 

authorizes and provides a regulatory 

framework for states and authorized 

tribes to adopt WQS variances where it 

is not feasible to attain the applicable 

WQS at that time (40 CFR 131.14); and 

(4) allows states and authorized tribes to 

authorize the use of compliance 

schedules in NPDES permits to meet 

water quality-based effluent limits 

(WQBELs) derived from the applicable 

WQS (40 CFR 131.15). Each of these 

approaches is discussed in more detail 

in the next sections. Whichever 

approach a state pursues, however, all 

NPDES permits would need to comply 

with EPA’s regulations at 40 CFR 

122.44(d)(1)(i). 

a. Designated Uses 

EPA’s proposed HHC apply to waters 

that Washington has designated for the 

following: 

• Fresh waters—Harvesting (fish 

harvesting), Domestic Water (domestic 

water supply), and Recreational Uses; 

• Marine waters—Shellfish 

Harvesting (shellfish—clam, oyster, and 

mussel—harvesting), Harvesting 

(salmonid and other fish harvesting, and 

crustacean and other shellfish—crabs, 

shrimp, scallops, etc.—harvesting), and 

Recreational Uses (see WAC 173–201A– 

600 and WAC 173–201A–610). 

The federal regulation at 40 CFR 

131.10(g) provides requirements for 

establishing, modifying, and removing 

designated uses when attaining the use 

is not feasible based on one of the six 

factors in the regulation. If Washington 

removes a use and adopts the highest 

attainable use,84 the State must also 


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specified in Section 101(a)(2) of the CWA and 

attainable, based on the evaluation of the factor(s) 

in 40 CFR 131.10(g) that preclude(s) attainment of 

the use and any other information or analyses that 

were used to evaluate attainability. There is no 

required highest attainable use where the state 

demonstrates the relevant use specified in Section 

101(a)(2) of the Act and sub-categories of such a use 

are not attainable (see 40 CFR 131.3(m)). 85 80 FR 51022, August 21, 2015. 

86 General permits typically focus on best 

management practices. 

adopt criteria to protect the newly 

designated highest attainable use 

consistent with 40 CFR 131.11. It is 

possible that criteria other than the 

federally promulgated criteria would 

protect the highest attainable use. If EPA 

finds removal or modification of the 

designated use and the adoption of the 

highest attainable use and criteria to 

protect that use to be consistent with 

CWA Section 303(c) and the 

implementing regulation at 40 CFR part 

131, the agency would approve the 

revised WQS. EPA would then 

undertake a rulemaking to withdraw the 

corresponding federal WQS for the 

relevant water(s). 

b. WQS Variances 

Washington’s WQS provide authority 

to apply WQS variances when 

implementing federally promulgated 

HHC, as long as such WQS variances are 

adopted consistent with 40 CFR 131.14 

and submitted to EPA for review under 

CWA Section 303(c). The federal 

regulation at 40 CFR 131.3(o) defines a 

WQS variance as a time-limited 

designated use and criterion, for a 

specific pollutant or water quality 

parameter, that reflects the highest 

attainable condition during the term of 

the WQS variance. A WQS variance may 

be appropriate if attaining the use and 

criterion would not be feasible during 

the term of the WQS variance because 

of one of the seven factors specified in 

40 CFR 131.14(b)(2)(i)(A). These factors 

include a situation where NPDES permit 

limits more stringent than technologybased controls would result in 

substantial and widespread economic 

and social impact. WQS variances 

adopted in accordance with 40 CFR 

131.14 (including a public hearing 

consistent with 40 CFR 25.5) provide a 

flexible but defined pathway for states 

and authorized tribes to issue NPDES 

permits with limits that are based on the 

highest attainable condition during the 

term of the WQS variance. This allows 

dischargers to make water quality 

improvements when the WQS is not 

immediately attainable but may be in 

the future. When adopting a WQS 

variance, states and authorized tribes 

specify the interim requirements of the 

WQS variance by identifying a 

quantitative expression that reflects the 

highest attainable condition (HAC) 

during the term of the WQS variance, 

establishing the term of the WQS 

variance, and describing the pollutant 

control activities expected to occur over 

the specified term of the WQS variance. 

WQS variances provide a legal avenue 

by which NPDES permit limits can be 

written to comply with the WQS 

variance rather than the underlying 

WQS for the term of the WQS variance. 

If dischargers are still unable to meet the 

WQBELs derived from the applicable 

WQS once a WQS variance term is 

complete, the regulation allows the 

State to adopt a subsequent WQS 

variance if it is adopted consistent with 

40 CFR 131.14. EPA is proposing HHC 

that apply to use designations that 

Washington has already established. 

Washington’s WQS regulations 

currently include provisions to use 

WQS variances when implementing 

criteria (see WA 173–210A–420), as long 

as such WQS variances are adopted 

consistent with 40 CFR 131.14 and 

approved by EPA. Washington may use 

the State’s EPA-approved WQS variance 

procedures when adopting such WQS 

variances. 

c. NPDES Permit Compliance Schedules 

EPA’s regulations at 40 CFR 122.47 

and 131.15 address how permitting 

authorities can use schedules for 

compliance with a limit in the NPDES 

permit if the discharger needs 

additional time to undertake actions like 

facility upgrades or operation changes to 

meet a WQBEL based on the applicable 

WQS. EPA’s regulation at 40 CFR 122.47 

allows a permitting authority to include 

a compliance schedule in the NPDES 

permit, when appropriate and where 

authorized by the state, to provide a 

discharger with additional time to meet 

a WQBEL implementing applicable 

WQS. EPA’s regulation at 40 CFR 131.15 

requires that a state that intends to 

allow the use of NPDES permit 

compliance schedules adopt specific 

provisions authorizing their use and 

obtain EPA approval under CWA 

Section 303(c) to ensure that a decision 

to allow a permit compliance schedule 

is transparent and allows for public 

input.85 EPA already has approved 

Washington’s State law provision 

authorizing the use of permit 

compliance schedules (see WAC–173– 

201A–510(4)), consistent with 40 CFR 

131.15. Washington’s compliance 

schedule authorizing provision is not 

affected by this rule. Washington is 

authorized to grant permit compliance 

schedules, as appropriate, based on the 

federal HHC in Washington, if such 

permit compliance schedules are 

consistent with EPA’s permitting 

regulation at 40 CFR 122.47. 

VI. Economic Analysis 

EPA focused its economic analysis on 

the potential cost impacts to current 

holders of individual NPDES permits 

(point sources) and the costs the State 

of Washington may bear to develop 

Total Maximum Daily Loads (TMDLs) 

for waters newly identified as impaired 

under CWA Section 303(d) using the 

proposed WQS. Costs might also arise to 

holders of general permits 86 should the 

State modify those permits in some 

manner as a result of the proposed 

WQS, once finalized. Costs might also 

arise to sectors whose operations are 

nonpoint sources of pollutants through 

implementation of TMDLs or through 

other voluntary, incentivized, or Stateimposed controls. This rule does not 

directly regulate nonpoint sources and 

under the CWA states are responsible 

for the regulation of nonpoint sources. 

EPA recognizes that controls for 

nonpoint sources may be part of future 

TMDLs, but any such future decisions 

will be made by the State. Nonpoint 

sources are intermittent, variable, and 

occur under hydrologic or climatic 

conditions associated with precipitation 

events. Data to model and evaluate the 

potential cost impacts associated with 

nonpoint sources were not available and 

any estimate would be too uncertain to 

be informative. EPA also did not 

estimate potential sediment remediation 

costs for this analysis. 

These WQS may serve as a basis for 

development of NPDES permit limits. 

Washington has NPDES permitting 

authority and retains considerable 

discretion in implementing standards. 

EPA evaluated the potential costs to 

NPDES dischargers associated with 

State implementation of EPA’s proposed 

criteria. This analysis is documented in 

‘‘Economic Analysis for Water Quality 

Standards Applicable to the State of 

Washington,’’ which can be found in the 

record for this rulemaking. Any NPDESpermitted facility that discharges 

pollutants for which the revised HHC 

are more stringent than the applicable 

aquatic life criteria (or for which HHC 

are the only applicable criteria) 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). 

A. Identifying Affected Entities 

EPA identified 406 point source 

facilities that could ultimately be 


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87Ten industrial categories (coal mining, food 

and kindred products, paper and allied products, 

chemicals and allied products, petroleum refining 

and related industries, primary metal industries, 

fabricated metal products, electric, gas and sanitary 

services, and national security and international 

affairs) and municipal POTWs. 

affected by this proposed rulemaking. 

Of these potentially affected facilities, 

73 are major dischargers and 333 are 

minor dischargers. EPA did not include 

general permit facilities in its analysis 

because data for such facilities are 

limited and requirements typically 

focus on best management practices. Of 

the potentially affected facilities, EPA 

evaluated a sample of 18 major 

facilities. Minor facilities are less likely 

to incur costs as a result of 

implementation of the rule because of 

the reduced potential for significant 

presence of toxic pollutants in their 

effluent. EPA did not have effluent data 

on toxic pollutants to evaluate minor 

facilities for this analysis. Table 2 

summarizes these potentially affected 

facilities by type and category. 

TABLE 2—POTENTIALLY AFFECTED FACILITIES

Category Minor Major All 

Municipal ...................................................................................................................................... 169 44 213 

Industrial ...................................................................................................................................... 164 29 193 

Total ...................................................................................................................................... 333 73 406 

B. Method for Estimating Costs to Point 

Sources 

EPA evaluated the two major 

municipal facilities with design flows 

greater than 100 mgd and the largest 

industrial facility, to attempt to capture 

the facilities with the potential for the 

largest costs. For the remaining major 

facilities, EPA evaluated a random 

sample of facilities to represent 

discharger type and category. For all 

sample facilities, EPA evaluated existing 

baseline permit conditions, reasonable 

potential to exceed HHC based on the 

proposed rulemaking, and potential to 

exceed projected effluent limitations 

based on the last three years of effluent 

monitoring data (if available). Only 

compliance actions and costs that 

would be needed above the baseline 

level of controls are attributable to the 

proposed rulemaking. 

EPA assumes that dischargers would 

pursue the least cost means of 

compliance with WQBELs. Compliance 

actions attributable to the proposed 

rulemaking may include pollution 

prevention, end-of-pipe treatment, and 

alternative compliance mechanisms 

(e.g., WQS variances). EPA annualizes 

capital costs, including study (e.g., WQS 

variance) and program (e.g., pollution 

prevention) costs, over 20 years using 

discount rates of 3 percent and 7 

percent to obtain total annual costs per 

facility. To obtain an estimate of total 

costs to point sources, EPA extrapolates 

the annualized costs for the random 

sample based on the flow volume for the 

sample facilities and the flow volume 

for all facilities. 

C. Results 

Based on the results for 18 sample 

facilities across 10 industrial and 

municipal categories,87 EPA did not 

identify any incremental costs to any 

major point source discharges of process 

wastewater from POTWs or industrial 

facilities attributable to the proposed 

criteria revisions. This does not mean 

that EPA anticipates there would be no 

costs to point sources over time to 

implement controls or modify processes 

to meet future permit limits, only that 

available data did not indicate the 

immediate need for the facilities 

evaluated. It would be highly 

speculative to attempt to estimate 

potential costs either based on the 

possibility of measuring pollutant levels 

at lower levels as a result of future 

requirements or future technology, or 

based on changes to facility operations 

or practices. 

One important contributing factor to 

examining point source costs is the 

limitations of required analytical 

methods to measure chemical 

concentrations in effluents. Nearly half 

of pollutant parameters addressed in 

this proposed rulemaking have 

analytical quantitation limits that are 

above both the criteria currently in 

place and the proposed criteria. PCBs 

are a good example. The current 

criterion in place is 170 picograms per 

liter (pg/L) and the proposed criterion is 

7 pg/L. However, the State identifies the 

analytical quantitation limit for effluent 

measurement as 500,000 pg/L. EPA has 

completed a multi-laboratory validation 

of a new analytical method for PCBs 

(method 1628) that has an average 

analytical quantitation limit for each 

PCB congener of approximately 2,000 

pg/L, which is a substantial 

improvement over the current 

regulatory method, but still well above 

either the criterion currently in place or 

the proposed criterion. As a general 

matter, analytical methods and 

quantitation limits are subject to change 

over time. As such, it is important that 

WQS reflect the necessary level of 

protection regardless of contemporary 

limitations of analytical methods. 

EPA also evaluated potential 

administrative costs to the State for 

developing additional TMDLs under 

CWA Section 303(d) for any waters that 

are newly identified as impaired as a 

result of the proposed criteria. Using 

available ambient monitoring data, EPA 

compared pollutant concentrations to 

the baseline and proposed criteria, 

identifying waterbodies that may be 

incrementally impaired (i.e., impaired 

under the proposed criteria but not 

under the baseline). EPA identified 36 

impairments under the baseline criteria 

and 66 under the proposed criteria, 

resulting in 30 potential incremental 

impairments. The estimated total annual 

costs for TMDL development range from 

$98,000 to $179,000, at a 3 percent 

discount rate, based on single-cause 

single-waterbody TMDL development 

costs. Actual costs may be reduced if the 

State develops multi-cause or multiwaterbody TMDLs. 

VII. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 13563: Improving Regulation and 

Regulatory Review 

It has been determined that this 

proposed rulemaking is not a 

‘‘significant regulatory action’’ under 

the terms of Executive Order 12866 (58 

FR 51735, October 4, 1993) and is, 

therefore, not subject to review under 

Executive Orders 12866 and 13563 (76 

FR 3821, January 21, 2011). 


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88Fair treatment means that ‘‘no group of people 

should bear a disproportionate burden of 

environmental harms and risks, including those 

resulting from the negative environmental 

consequences of industrial, governmental and 

commercial operations or programs and policies.’’ 

Meaningful involvement occurs when ‘‘(1) 

potentially affected populations have an 

appropriate opportunity to participate in decisions 

about a proposed activity [e.g., rulemaking] that 

will affect their environment and/or health; (2) the 

public’s contribution can influence [the EPA’s 

rulemaking] decision; (3) the concerns of all 

participants involved will be considered in the 

decision-making process; and (4) [the EPA will] 

seek out and facilitate the involvement of those 

potentially affected.’’ A potential EJ concern is 

defined as ‘‘the actual or potential lack of fair 

treatment or meaningful involvement of minority 

populations, low-income populations, tribes, and 

tribal peoples in the development, implementation 

and enforcement of environmental laws, regulations 

and policies.’’ See ‘‘Guidance on Considering 

Environmental Justice During the Development of 

an Action.’’ Environmental Protection Agency, 

www.epa.gov/environmentaljustice/ 

guidanceconsidering-environmental-justiceduringdevelopment-action. See also https://

www.epa.gov/environmentaljustice. 

89Federal Actions to Address Environmental 

Justice in Minority Populations and Low-Income 

Populations. Available at https://www.epa.gov/ 

environmentaljustice/federal-actions-addressenvironmental-justice-minority-populations-andlow, accessed October 6, 2021. 

90Advancing Racial Equity and Support for 

Underserved Communities Through the Federal 

Government. Available at https://

www.federalregister.gov/documents/2021/01/25/ 

2021-01753/advancing-racial-equity-and-supportfor-underserved-communities-through-the-federalgovernment, accessed October 6, 2021. 

91Tackling the Climate Crisis at Home and 

Abroad. Available at https://www.federalregister.

gov/documents/2021/02/01/2021-02177/tacklingthe-climate-crisis-at-home-and-abroad. Accessed 

October 6, 2021. 

B. Paperwork Reduction Act 

This action does not impose any new 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. OMB has 

previously approved the information 

collection activities contained in the 

existing regulations at 40 CFR part 131 

and has assigned OMB control number 

2040–0049. 

C. Regulatory Flexibility Act 

I certify that this proposed rulemaking 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (RFA). Small entities, such as small 

businesses or small governmental 

jurisdictions, are not directly regulated 

by this rule. This proposed rulemaking 

will not impose any requirements on 

small entities. 

D. Unfunded Mandates Reform Act 

This action does not contain any 

unfunded mandate as described in 

UMRA, 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. The action imposes no 

enforceable duty on any state, local or 

tribal governments or the private sector. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the states, on the 

relationship between the national 

government and the states, or on the 

distribution of power and 

responsibilities among the various 

levels of government. This rule does not 

alter Washington’s considerable 

discretion in implementing these WQS, 

nor would it preclude Washington from 

adopting WQS that EPA concludes meet 

the requirements of the CWA, either 

before or after promulgation of the final 

rule, which would eliminate the need 

for federal standards. Thus, Executive 

Order 13132 does not apply to this 

action. 

In the spirit of Executive Order 13132 

and consistent with EPA policy to 

promote communications between EPA 

and state and local governments, EPA 

specifically solicits comments on this 

proposed action from state and local 

officials. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action has tribal implications. 

However, it will neither impose 

substantial direct compliance costs on 

federally recognized tribal governments, 

nor preempt tribal law. This rule could 

affect federally recognized Indian tribes 

in Washington because the numeric 

criteria for Washington will apply to 

waters adjacent to (or upstream or 

downstream of) the tribal waters, and 

because the proposed Washington 

criteria are informed by tribal reserved 

rights. Additionally, there are six 

federally recognized Indian tribes in the 

Columbia River Basin located in the 

states of Oregon and Idaho that this rule 

could affect because their waters could 

affect or be affected by the water quality 

of Washington’s downstream or 

upstream waters. 

EPA consulted with tribal officials 

under the EPA Policy on Consultation 

and Coordination with Indian Tribes 

early in the process of developing this 

regulation to permit them to have 

meaningful and timely input into its 

development. In August 2021, EPA held 

tribes-only technical staff and 

leadership consultation sessions to hear 

their views and answer questions of all 

interested tribes on the proposed 

rulemaking. Representatives from 

approximately 17 tribes and two tribal 

consortia participated in two leadership 

meetings held in August 2021. The 

tribes have repeatedly asked EPA to 

reinstate the 2016 federal HHC for 

Washington, which EPA is proposing to 

do in this rule. EPA considered the 

input received during consultation with 

tribes when developing this proposal. 

A Summary of EPA’s Pre-Proposal 

Consultation, Coordination, and 

Outreach With Federally Recognized 

Tribes on Potential Restoration of 

Protective Human Heath Criteria for 

Washington is available in the docket 

for this proposal. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

This proposed rulemaking is not 

subject to Executive Order 13045 

because it is not economically 

significant as defined in Executive 

Order 12866, and because EPA does not 

believe the environmental health or 

safety risks addressed by this action 

present a disproportionate risk to 

children. As noted in section III.A of 

this preamble, EPA recommends that 

HHC be designed to reduce 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 proposed HHC 

for Washington are similarly based on 

reducing the chronic health effects 

occuring from lifetime exposure and 

therefore are expected to be protective 

of a person’s exposure during both 

childhood and adult years. 

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 proposed rulemaking does not 

involve technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

1. Introduction 

EPA defines Environmental Justice 

(EJ) as the fair treatment and meaningful 

involvement of all people regardless of 

race, color, national origin, or income 

with respect to the development, 

implementation and enforcement of 

environmental laws, regulations and 

policies.88 Three Executive Orders (E.O. 

12898,89 13985 90 and 14008 91) advance 

EJ by calling on federal agencies to 

identify and address disproportionate 


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92 86 FR 23054, 23162 (April 30, 2021) (‘‘Going 

forward, EPA is committed to conducting 

environmental justice analysis for rulemakings 

based on a framework similar to what is outlined 

here, in addition to investigating ways to further 

weave environmental justice into the fabric of the 

rulemaking process including through enhanced 

meaningful engagement with environmental justice 

communities.’’). 

93 Department of Ecology. Fish Consumption 

Rates: Technical Support Document, A Review of 

Data and Information about Fish Consumption in 

Washington, Version 2.0 Final. January 2013. 

Ecology Publication No. 12–09–058, p.18. https://

apps.ecology.wa.gov/publications/documents/ 

1209058.pdf. 

94 80 FR 55063 (September 14, 2015) (‘‘In 

Washington, many tribes hold reserved rights to 

take fish for subsistence, ceremonial, religious, and 

commercial purposes, including treaty-reserved 

rights to fish at all usual and accustomed fishing 

grounds and stations in waters under state 

jurisdiction, which cover the majority of waters in 

the state. Such rights include not only a right to 

take those fish, but necessarily include an attendant 

right to not be exposed to unacceptable health risks 

by consuming those fish.’’). 

95 Fish Consumption Survey of the Umatilla, Nez 

Perce, Yakama, and Warm Springs Tribes of the 

Columbia River Basin (CRITFC 1994). 

impacts on historically underserved, 

marginalized, and economically 

disadvantaged people. Additionally, 

EPA has expressed a commitment to 

conducting EJ analyses for rulemakings 

as described in the April 30, 2021 

revisions to the Cross-State Air 

Pollution Rule (CSAPR).92

EPA believes that this proposed 

rulemaking, if finalized, is not expected 

to have disproportionately high and 

adverse human health or environmental 

effects on low-income populations, 

people of color, or tribal populations, as 

specified in Executive Order 12898 (59 

FR 7629, February 16, 1994). In its 

economic impact analysis, EPA only 

estimates administrative costs to the 

State of Washington to develop TMDLs 

and no incremental costs to point source 

discharges based on available data, as 

explained above in Section VI of this 

preamble. Therefore, EPA does not 

anticipate that this rule will impose any 

additional costs or other negative 

impacts on tribes or other low income 

or disadvantaged communities. 

Instead, this action identifies and 

ameliorates disproportionately high and 

adverse human health effects on tribal 

communities, people of color and lowincome populations in Washington by 

proposing to restore HHC in Washington 

that account for sound scientific 

rationale and protect high fish 

consumers. 

Many groups in Washington, such as 

Asian, Pacific Islanders, and subsistence 

and recreational tribal and non-tribal 

fishers consume large amounts of fish 

and shellfish as part of traditionally 

influenced diets.93 The 2019 

Reconsidered HHC currently expose 

these high fish consumers to greater risk 

from toxic pollutants because the 

criteria do not accurately account for 

pollutant bioaccumulation from water 

into fish and expose fish consumers to 

a greater risk of cancer from PCB 

exposure. 

Environmental impacts to tribes may 

be considered under the category of EJ 

in recognition that tribes may at times 

be among the disadvantaged 

communities disproportionately 

impacted by environmental degradation. 

Where tribal communities are part of a 

larger non-tribal community, many of 

the EJ considerations are very similar to 

those of other disadvantaged groups. 

However, there is a very unique set of 

EJ considerations for tribes, particularly 

in this context where tribes are 

exercising their cultural practices and 

reserved rights off their reservations on 

state waters. 

While the overall impacts to 

communities with EJ concerns are 

improved as a result of this rule, by 

relying on the fish consumption rates 

based on tribal data, this rule helps 

ensure that tribal members, in 

particular, and their treaty-protected 

activities and resources are protected.94

Specifically, this rule proposes to 

establish HHC based on a FCR of 175 g/ 

day reflective of regional tribal FCR 

survey data 95 to represent and protect 

higher fish consumers. Because a FCR of 

175 g/day is a compromise rate in the 

absence of conclusive data regarding 

unsuppressed fish consumption levels, 

the rule proposes to use a CRL of 10¥6

to derive HHC for all cancer-causing 

pollutants, including PCBs, to ensure 

that the effective CRL for tribes 

exercising treaty rights to fish is no 

greater than 10¥5. 

Central to working with tribes on their 

environmental issues and opportunities 

is government to government 

consultation, which is consistent with 

Executive Order 13175 (65 FR 67249, 

November 6, 2000). To ensure that this 

proposed rulemaking considers the 

interests and perspective of tribes, we 

engaged with tribes that may be affected 

by this action to receive meaningful and 

timely input from tribal officials as we 

developed the proposal. See section 

VII.F for a summary of tribal 

consultation. 

In addition to Executive Orders 12898 

and 13175, and in accordance with Title 

VI of the Civil Rights Act of 1964, each 

federal agency shall ensure that all 

programs or activities receiving federal 

financial assistance that affect human 

health or the environment do not 

directly, or through contractual or other 

arrangements, use criteria, methods, or 

practices that discriminate on the basis 

of race, color, or national origin. With 

that directive in mind, in August 2011 

the Environmental Justice Interagency 

Working Group established a Title VI 

Committee to address the intersection of 

agencies’ environmental justice efforts 

with their Title VI enforcement and 

compliance responsibilities. If 

Washington receives federal funds for 

CWA implementation, they are legally 

prohibited from discriminating on the 

basis of race, color or national origin 

under Title VI when engaging in CWA 

implementation activities. Additionally, 

and in compliance with Executive Order 

12898, EPA expects that Washington 

will consider disproportionately high 

adverse human health and 

environmental effects on minority and 

low-income populations when 

implementing this rulemaking under the 

CWA. 

List of Subjects in 40 CFR Part 131 

Environmental protection, Indianslands, Intergovernmental relations, 

Reporting and recordkeeping 

requirements, Water pollution control. 

Michael S. Regan, 

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. Amend § 131.45 by revising 

paragraph (b) to read as follows: 

§ 131.45 Revision of certain Federal water 

quality criteria applicable to Washington. 

* * * * * 

(b) Criteria for priority toxic 

pollutants in Washington. The 

applicable human health criteria are 

shown in Table 1 to paragraph (b). 


lotter on DSK11XQN23PROD with PROPOSALS1
19062 Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Proposed Rules 

TABLE 1 TO PARAGRAPH (B)—HUMAN HEALTH CRITERIA FOR WASHINGTON

A B C 

Chemical CAS No. 

Cancer 

slope factor, 

CSF 

(per mg/ 

kg·d) 

Relative source 

contribution, 

RSC (¥) 

Reference 

dose, RfD 

(mg/kg·d) 

Bio-accumulation 

factor 

(L/kg tissue) 

Bio-concentration 

factor 

(L/kg tissue) 

Water & 

organisms 

(μg/L) 

Organisms 

only 

(μg/L) 

(B1) (B2) (B3) (B4) (B5) (C1) (C2) 

1. 1,1,1-Trichloroethane ................ 71556 .................... 0.50 2 10 ............................ 20,000 50,000 

2. 1,1,2,2-Tetrachloroethane ......... 79345 0.2 .......................... .................... 8.4 ............................ 0.1 0.3 

3. 1,1,2-Trichloroethane ................ 79005 0.057 .......................... .................... 8.9 ............................ 0.35 0.90 

4. 1,1-Dichloroethylene ................. 75354 .................... 0.50 0.05 2.6 ............................ 700 4,000 

5. 1,2,4-Trichlorobenzene ............. 120821 0.029 .......................... .................... 430 ............................ 0.036 0.037 

6. 1,2-Dichlorobenzene ................. 95501 .................... 0.50 0.3 82 ............................ 700 800 

7. 1,2-Dichloroethane .................... 107062 0.0033 .......................... .................... 1.9 ............................ 8.9 73 

8. 1,2-Diphenylhydrazine .............. 122667 0.8 .......................... .................... 27 ............................ 0.01 0.02 

9. 1,2-Trans-Dichloroethylene ....... 156605 .................... 0.50 0.02 4.7 ............................ 200 1,000 

10. 1,3-Dichlorobenzene ............... 541731 .................... 0.50 0.002 190 ............................ 2 2 

11. 1,3-Dichloropropene ................ 542756 0.122 .......................... .................... 3.0 ............................ 0.22 1.2 

12. 1,4-Dichlorobenzene ............... 106467 .................... 0.50 0.07 84 ............................ 200 200 

13. 2,4-Dichlorophenol .................. 120832 .................... 0.50 0.003 48 ............................ 10 10 

14. 2,4-Dinitrophenol ..................... 51285 .................... 0.50 0.002 4.4 ............................ 30 100 

15. 2-Chloronaphthalene ............... 91587 .................... 0.80 0.08 240 ............................ 100 100 

16. 2-Methyl-4,6-Dinitrophenol ...... 534521 .................... 0.50 0.0003 10 ............................ 3 7 

17. 4,4′-DDD ................................. 72548 0.24 .......................... .................... 240,000 ............................ 7.9E–06 7.9E–06 

18. 4,4′-DDE ................................. 72559 0.167 .......................... .................... 3,100,000 ............................ 8.8E–07 8.8E–07 

19. 4,4′-DDT .................................. 50293 0.34 .......................... .................... 1,100,000 ............................ 1.2E–06 1.2E–06 

20. Acenaphthene ......................... 83329 .................... 0.50 0.06 510 ............................ 30 30 

21. Aldrin ....................................... 309002 17 .......................... .................... 650,000 ............................ 4.1E–08 4.1E–08 

22. alpha-BHC ............................... 319846 6.3 .......................... .................... 1,500 ............................ 4.8E–05 4.8E–05 

23. alpha-Endosulfan .................... 959988 .................... 0.50 0.006 200 ............................ 6 7 

24. Anthracene .............................. 120127 .................... 0.50 0.3 610 ............................ 100 100 

25. Antimony ................................. 7440360 .................... 0.50 0.0004 ............................ 1 6 90 

26. Arsenic * .................................. 7440382 1.75 .......................... .................... ............................ 44 a 0.018 a 0.14 

27. Benzo(a) Anthracene .............. 56553 0.73 .......................... .................... 3,900 ............................ 0.00016 0.00016 

28. Benzo(a) Pyrene ..................... 50328 7.3 .......................... .................... 3,900 ............................ 1.6E–05 1.6E–05 

29. Benzo(b) Fluoranthene ........... 205992 0.73 .......................... .................... 3,900 ............................ 0.00016 0.00016 

30. Benzo(k) Fluoranthene ........... 207089 0.073 .......................... .................... 3,900 ............................ 0.0016 0.0016 

31. beta-BHC ................................ 319857 1.8 .......................... .................... 180 ............................ 0.0013 0.0014 

32. Bis(2-Chloro-1-Methylethyl) 

Ether ** ....................................... 108601 .................... 0.50 0.04 10 ............................ 400 900 

33. Bis(2-Ethylhexyl) Phthalate ..... 117817 0.014 .......................... .................... 710 ............................ 0.045 0.046 

34. Bromoform .............................. 75252 0.0045 .......................... .................... 8.5 ............................ 4.6 12 

35. Butylbenzyl Phthalate ............. 85687 0.0019 .......................... .................... 19,000 ............................ 0.013 0.013 

36. Chlordane ................................ 57749 0.35 .......................... .................... 60,000 ............................ 2.2E–05 2.2E–05 

37. Chlorobenzene ........................ 108907 .................... 0.50 0.02 22 ............................ 100 200 

38. Chlorodibromomethane ........... 124481 0.04 .......................... .................... 5.3 ............................ 0.60 2.2 

39. Chloroform .............................. 67663 .................... 0.50 0.01 3.8 ............................ 100 600 

40. Chrysene ................................. 218019 0.0073 .......................... .................... 3,900 ............................ 0.016 0.016 

41. Cyanide ................................... 57125 .................... 0.50 0.0006 ............................ 1 9 100 

42. Dibenzo(a,h) Anthracene ........ 53703 7.3 .......................... .................... 3,900 ............................ 1.6E–05 1.6E–05 

43. Dichlorobromomethane ........... 75274 0.034 .......................... .................... 4.8 ............................ 0.73 2.8 

44. Dieldrin .................................... 60571 16 .......................... .................... 410,000 ............................ 7.0E–08 7.0E–08 

45. Diethyl Phthalate ..................... 84662 .................... 0.50 0.8 920 ............................ 200 200 

46. Dimethyl Phthalate .................. 131113 .................... 0.50 10 4,000 ............................ 600 600 

47. Di-n-Butyl Phthalate ................ 84742 .................... 0.50 0.1 2,900 ............................ 8 8 

48. Endosulfan Sulfate .................. 1031078 .................... 0.50 0.006 140 ............................ 9 ........................

49. Endrin ...................................... 72208 .................... 0.80 0.0003 46,000 ............................ 0.002 0.002 

50. Ethylbenzene .......................... 100414 .................... 0.50 0.022 160 ............................ 29 31 

51. Fluoranthene ........................... 206440 .................... 0.50 0.04 1,500 ............................ 6 6 

52. Fluorene .................................. 86737 .................... 0.50 0.04 710 ............................ 10 10 

53. gamma-BHC; Lindane ............ 58899 .................... 0.50 0.0047 2,500 ............................ 0.43 0.43 

54. Heptachlor ............................... 76448 4.1 .......................... .................... 330,000 ............................ 3.4E–07 3.4E–07 

55. Heptachlor Epoxide ................. 1024573 5.5 .......................... .................... 35,000 ............................ 2.4E–06 2.4E–06 

56. Hexachlorobenzene ................ 118741 1.02 .......................... .................... 90,000 ............................ 5.0E–06 5.0E–06 

57. Hexachlorobutadiene .............. 87683 0.04 .......................... .................... 1,100 ............................ 0.01 0.01 

58. Hexachlorocyclopentadiene .... 77474 .................... 0.50 0.006 1,300 ............................ 1 1 

59. Hexachloroethane ................... 67721 0.04 .......................... .................... 600 ............................ 0.02 0.02 

60. Indeno(1,2,3-cd) Pyrene ......... 193395 0.73 .......................... .................... 3,900 ............................ 0.00016 0.00016 

61. Methyl Bromide ....................... 74839 .................... 0.50 0.02 1.4 ............................ 300 ........................

62. Methylene Chloride ................. 75092 0.002 .......................... .................... 1.6 ............................ 10 100 

63. Methylmercury ......................... 22967926 .................... 2.7E–05 0.0001 ............................ ............................ .................. b 0.03 (mg/kg) 

64. Nickel ...................................... 7440020 .................... 0.50 0.02 ............................ 47 80 100 

65. Nitrobenzene ........................... 98953 .................... 0.50 0.002 3.1 ............................ 30 100 

66. Pentachlorophenol (PCP) ....... 87865 0.4 .......................... .................... 520 ............................ 0.002 0.002 

67. Phenol ..................................... 108952 .................... 0.50 0.6 1.9 ............................ 9,000 70,000

68. Polychlorinated Biphenyls 

(PCBs) ....................................... ................ 2 .......................... .................... ............................ 31,200 c 7E–06 c 7E–06 

69. Pyrene ..................................... 129000 .................... 0.50 0.03 860 ............................ 8 8 

70. Selenium ................................. 7782492 .................... 0.50 0.005 ............................ 4.8 60 200 

71. Tetrachloroethylene ................ 127184 0.0021 .......................... .................... 76 ............................ 2.4 2.9 

72. Toluene ................................... 108883 .................... 0.50 0.0097 17 ............................ 72 130 


lotter on DSK11XQN23PROD with PROPOSALS1
Federal Register / Vol. 87, No. 63 / Friday, April 1, 2022 / Proposed Rules 19063 

TABLE 1 TO PARAGRAPH (B)—HUMAN HEALTH CRITERIA FOR WASHINGTON—Continued 

A B C 

Chemical CAS No. 

Cancer 

slope factor, 

CSF 

(per mg/ 

kg·d) 

Relative source 

contribution, 

RSC (¥) 

Reference 

dose, RfD 

(mg/kg·d) 

Bio-accumulation 

factor 

(L/kg tissue) 

Bio-concentration 

factor 

(L/kg tissue) 

Water & 

organisms 

(μg/L) 

Organisms 

only 

(μg/L) 

(B1) (B2) (B3) (B4) (B5) (C1) (C2) 

73. Trichloroethylene ..................... 79016 0.05 .......................... .................... 13 ............................ 0.3 0.7 

74. Vinyl Chloride .......................... 75014 1.5 .......................... .................... 1.7 ............................ .................. 0.18 

75. Zinc ......................................... 7440666 .................... 0.50 0.3 ............................ 47 1,000 1,000 

aThis criterion refers to the inorganic form of arsenic only. 

bThis criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish). See Water Quality Criterion for the Protection of Human 

Health: Methylmercury (EPA–823–R–01–001, January 3, 2001) for how this value is calculated using the criterion equation in EPA’s 2000 Human Health Methodology 

rearranged to solve for a protective concentration in fish tissue rather than in water. cThis criterion applies to total PCBs (e.g., the sum of all congener or isomer or homolog or Aroclor analyses). 

* These criteria were promulgated for Washington in the National Toxics Rule at 40 CFR 131.36, and are moved into 40 CFR 131.45 to have one comprehensive 

human health criteria rule for Washington. 

** Bis(2-Chloro-1-Methylethyl) Ether was previously listed as Bis(2-Chloroisopropyl) Ether. 

* * * * * 

[FR Doc. 2022–06879 Filed 3–31–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF DEFENSE 

Defense Acquisition Regulations 

System 

48 CFR Parts 203, 204, 205, 207, 208, 

211, 212, 213, 215, 216, 217, 219, 222, 

223, 225, 226, 227, 232, 234, 237, 239, 

242, 243, 244, 245, 246, 247, and 252 

[Docket DARS–2022–0004] 

RIN 0750–AK31 

Defense Federal Acquisition 

Regulation Supplement: Revision of 

Definition of ‘‘Commercial Item’’ 

(DFARS Case 2018–D066) 

AGENCY: Defense Acquisition 

Regulations System, Department of 

Defense (DoD). 

ACTION: Proposed rule; correction. 

SUMMARY: DoD is correcting proposed 

regulations that published in the 

Federal Register on March 18, 2022. 

The document included an incorrect 

hyperlink. This document reflects the 

correct hyperlink. 

DATES: Comments for the proposed rule 

published March 18, 2022, at 87 FR 

15820, continue to be accepted on or 

before May 17, 2022, to be considered 

in the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by DFARS Case 2018–D066, 

using any of the following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Search for 

‘‘DFARS Case 2018–D066’’. Select 

‘‘Comment Now’’ and follow the 

instructions provided to submit a 

comment. Please include ‘‘DFARS Case 

2018–D066’’ on any attached 

documents. 

• Email: osd.dfars@mail.mil. Include 

DFARS Case 2018–D066 in the subject 

line of the message. 

Comments received generally will be 

posted without change to https://

www.regulations.gov, including any 

personal information provided. To 

confirm receipt of your comment(s), 

please check https://

www.regulations.gov, approximately 

two to three days after submission to 

verify posting. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Jennifer D. Johnson, telephone 571– 

372–6100. 

SUPPLEMENTARY INFORMATION: On March 

18, 2022, DoD published a proposed 

rule in the Federal Register at 87 FR 

15820 titled ‘‘Revision of Definition of 

‘‘Commercial Item’’ (DFARS Case 2018– 

D066)’’. The hyperlink at the end of the 

‘‘I. Background’’ section contained an 

incorrect hyperlink for the referenced 

Section 809 Panel Report. The correct 

hyperlink is ‘‘https://discover.dtic.mil/ 

section-809-panel/’’. 

Jennifer D. Johnson, 

Editor/Publisher, Defense Acquisition 

Regulations System. 

[FR Doc. 2022–06815 Filed 3–31–22; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 648 

[RTID 0648–XB846] 

Magnuson-Stevens Fishery 

Conservation and Management Act 

Provisions; Fisheries of the 

Northeastern United States; 

Amendment 8 to the Northeast Skate 

Complex Fishery Management Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Notice of availability of 

proposed fishery management plan 

amendment; request for comments. 

SUMMARY: The New England Fishery 

Management Council has submitted 

Amendment 8 to the Northeast Skate 

Complex Fishery Management Plan to 

NMFS for review and approval. 

Amendment 8 would update the 

objectives of the skate fishery 

management plan, which have been 

unchanged since the original plan was 

adopted in 2003. The purpose of this 

amendment is to ensure that the skate 

management continues to reflect and 

address the current needs and condition 

of the skate fishery. These revisions 

were initially included in Amendment 5 

and subsequently Framework 

Adjustment 9 to the Northeast Skate 

Complex Fishery Management Plan 

before those prior actions were 

discontinued by the Council. This 

notice is intended to alert the public to 

this action and provide an opportunity 

for comment. 

DATES: Comments must be received on 

or before May 31, 2022. 


lotter on DSK11XQN23PROD with PROPOSALS1