Withdrawal of Certain Federal Water Quality Criteria Applicable to Washington, 28494-28499 [2020-08497]
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Federal Register / Vol. 85, No. 93 / Wednesday, May 13, 2020 / Rules and Regulations
wiley.adina@epa.gov. Out of an
abundance of caution for members of
the public and our staff, the EPA Region
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reduce the risk of transmitting COVID–
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access to material indexed but not
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In FR doc.
2020–06160 at 85 FR 20178 in the issue
of April 10, 2020, the following
corrections are made:
SUPPLEMENTARY INFORMATION:
§ 52.1920
[Corrected]
1. On page 20181, in the second
column, amendatory instruction a.ii. is
corrected to read ‘‘Adding entries for
‘‘252:4–7–20’’, ‘‘252:4–17–1’’, ‘‘252:4–
17–2’’, ‘‘252:4–17–3’’, ‘‘252:4–17–4’’,
‘‘252:4–17–5’’, ‘‘252:4–17–6’’, ‘‘252:4–
17–7’’, ‘‘252:100–8–36.1’’; and’’
■
2. On the same page, in the third
column, amendatory instruction b.i. is
corrected to read ‘‘Amend the table
titled ‘‘EPA-Approved Nonregulatory
Provisions and Quasi-Regulatory
Measures in the Oklahoma SIP’’ by
adding a new entry at the end of the
table for: ‘‘Letter to Ms. Anne Idsal,
Regional Administrator, EPA Region 6,
dated May 16, 2018 regarding
‘‘Clarification of PSD Public
Participation Procedures under 2017
Revisions to the Oklahoma State
Implementation Plan’’.’’
■
3. On the same page, in the same
column, amendatory instruction b.ii. is
corrected to read ‘‘Amend the table
titled ‘‘EPA Approved Statutes in the
Oklahoma SIP’’ by adding new entries at
the beginning of the table for ‘‘25 O.S.
304(2)’’, ‘‘27A O.S. 2–5–112(E)’’, ‘‘27A
O.S. 2–14–103’’, ‘‘27A O.S. 2–14–301’’,
‘‘27A O.S. 2–14–302’’, ‘‘27A O.S. 2–14–
303’’, ‘‘27A O.S. 2–14–304’’; ‘‘51 O.S.
24A.3’’, ‘‘75 O.S. 302(B)’’, and ‘‘75 O.S.
303’’.
■
Dated: April 29, 2020.
Kenley McQueen,
Regional Administrator, Region 6.
[FR Doc. 2020–09550 Filed 5–11–20; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 131
[EPA–HQ–OW–2015–0174; FRL–10008–24–
OW]
RIN 2040–AF94
Withdrawal of Certain Federal Water
Quality Criteria Applicable to
Washington
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA or Agency) is taking final
action to amend the federal regulations
to withdraw certain human health water
quality criteria applicable to waters in
the State of Washington. The EPA is
taking this action because the State
adopted, and the EPA approved, human
health criteria that the Agency
determined are protective of
Washington’s designated uses for its
waters. In this action, the EPA is
amending the federal regulations to
withdraw those certain human health
criteria applicable to Washington but
promulgated by the Agency, as
described in the August 6, 2019
proposed rule. The withdrawal will
enable Washington to implement its
EPA-approved human health criteria,
submitted on August 1, 2016, and
approved on May 10, 2019, as
applicable criteria for Clean Water Act
(CWA or the Act) purposes.
DATES: This final rule is effective on
June 12, 2020.
ADDRESSES: The EPA has established a
docket for this action identified by
Docket ID No. EPA–HQ–OW–2015–
0174, at https://www.regulations.gov.
For additional information about the
EPA’s public docket, visit the EPA
Docket Center homepage at https://
www.epa.gov/dockets.
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.
SUMMARY:
This
proposed rule is organized as follows:
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SUPPLEMENTARY INFORMATION:
I. General Information
Does this action apply to me?
II. Background
What are the applicable federal statutory
and regulatory requirements?
III. What are the Federal Water Quality
Criteria that the EPA is withdrawing?
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A. Comments in Support of the EPA’s
Proposal To Withdraw the Federal HHC
B. Comments in Opposition to the EPA’s
Proposal To Withdraw the Federal HHC
C. Comments Concerning Methylmercury
and Bis (2-Chloro-1-Methylethyl) Ether
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act
(UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
J. National Technology Transfer and
Advancement Act
K. Executive Order 12898: Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General Information
Does this action apply to me?
This final action withdraws certain
federal human health criteria (HHC) in
the State of Washington that are no
longer needed due to the EPA’s
approval of the corresponding State
HHC on May 10, 2019. Entities
discharging pollutants in Washington
waters, citizens, as well as the State of
Washington may be interested in this
rulemaking, because after the effective
date of this rulemaking Washington’s
EPA-approved HHC, rather than the
federal HHC, will be the applicable
water quality standards in Washington
waters for CWA purposes. This action
applies only to waterbodies in the State
of Washington and does not apply to
waters that are within Indian Country as
defined in 18 U.S.C. 1151. If you have
questions regarding the applicability of
this action to a particular entity, consult
the person identified in the preceding
FOR FURTHER INFORMATION CONTACT
section.
II. Background
What are the applicable federal
statutory and regulatory requirements?
Consistent with the CWA, the EPA’s
water quality standards (WQS) program
assigns to states and authorized tribes
the primary authority for adopting
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WQS.1 After a state adopts WQS, the
state must submit them to the EPA for
review and action in accordance with
the CWA. If the EPA finds the state
WQS are based on sound science and
protect the state’s designated uses, the
CWA requires the EPA to approve those
state WQS. The Act authorizes the EPA
to promulgate federal WQS following
the EPA’s disapproval of state WQS or
following an Administrator’s
determination that new or revised WQS
are ‘‘necessary to meet the requirements
of the Act.’’ 2
On September 14, 2015, the EPA
proposed a federal rule to establish
updated HHC in Washington based on
an Administrator’s determination that
new or revised WQS were necessary to
meet the requirements of the Act.
Specifically, in its 2015 proposed rule,
the EPA considered data representing
regional and local fish consumption that
reflected consumption levels much
higher than the National Toxics Rule
(NTR) fish consumption rate of 6.5
grams/day, and accordingly
‘‘determined that the federal human
health criteria in the NTR as applied to
Washington no longer protect the
relevant designated uses of
Washington’s waters.’’ 3 To address the
Administrator’s determination pursuant
to its CWA Section 303(c) authority, the
EPA’s proposed rulemaking established
HHC using a fish consumption rate of
175 grams/day.4 The EPA also used all
of the inputs from the EPA’s recently
updated 2015 CWA Section 304(a)
national recommended water quality
criteria for the protection of human
health to calculate the proposed federal
criteria.5
Following the EPA’s 2015 proposed
rulemaking, on August 1, 2016,
Washington submitted HHC for the
EPA’s review.6 Washington’s criteria
were based on a fish consumption rate
of 175 grams/day and incorporated most
of the components of the EPA’s updated
2015 CWA Section 304(a) HHC
recommendations.7 By using a fish
consumption rate of 175 grams/day,
which is consistent with the EPA’s
proposed rulemaking, Washington’s
HHC addressed the basis for the EPA’s
2015 Administrator’s determination—
1 33
U.S.C. 1313(a), (c).
U.S.C. 1313(c)(4).
3 Revision of Certain Water Quality Standards
Applicable to Washington, 80 FR 55063, 55066
(September 14, 2015).
4 Id. at 55066–55067.
5 Id. at 55063, 55066.
6 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.
7 Id.
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2 33
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that it is necessary to adopt new or
revised HHC based on a higher fish
consumption rate.
For the reasons explained in the
EPA’s 2016 disapproval letter and final
federal rule, the EPA disapproved a
subset of the HHC that Washington
submitted to the EPA.8 The EPA’s final
federal rule was issued concurrent with
its partial disapproval letter.9 In
explaining the rationale underlying the
partial disapproval of Washington’s
August 1, 2016, submittal, the EPA
‘‘agree[d] with Washington’s decision to
derive the HHC using a FCR of 175 g/
day,’’ noting that the value was
consistent with the EPA’s final federal
rule.10 However, the EPA disagreed with
some of the risk management decisions
the State made during the development
of its HHC and its decision not to
incorporate all components of the
updated 2015 CWA Section 304(a) HHC
recommendations.11
Although the EPA promulgated HHC
for Washington in the NTR, and
subsequently in November 2016, the
EPA prefers that states maintain primary
responsibility and establish their own
WQS in keeping with the text and
structure of the CWA. In response to a
February 21, 2017, petition from several
entities asking the EPA to reconsider the
partial disapproval of Washington’s
August 2016 HHC,12 the EPA issued a
8 November 15, 2016. Letter (EPA Partial
Disapproval Letter) and enclosed Technical Support
Document (Partial Disapproval TSD) from Daniel D.
Opalski, Director, Office of Water and Watersheds,
EPA Region 10 to Maia Bellon, Director,
Department of Ecology, Re: EPA’s Partial Approval/
Disapproval of Washington’s Human Health Water
Quality Criteria and Implementation Tools; 81 FR
85417 (‘‘Concurrent with this final rule, EPA is
taking action under CWA 303(c) to approve in part,
and disapprove in part, the human health criteria
submitted by Washington’’).
9 Revision of Certain Water Quality Standards
Applicable to Washington, 81 FR 85417 (November
28, 2016).
Contrary to at least one comment letter EPA
received prior to its May 10, 2019 Decision to
Approve Washington’s criteria, the EPA did not
provide the State with 90 days to remedy the partial
disapproval, as envisioned in Section 303(c)(3) of
the Act. See May 7, 2019 Letter from the Lower
Elwha Klallam Tribe to Administrator Andrew
Wheeler, EPA, Re: Washington State Water Quality
Standards at 4.
10 Partial Disapproval TSD at 16.
11 November 15, 2016. Letter (EPA Partial
Disapproval Letter) and enclosed Technical Support
Document (Partial Disapproval TSD) from Daniel D.
Opalski, Director, Office of Water and Watersheds,
EPA Region 10 to Maia Bellon, Director,
Department of Ecology, Re: EPA’s Partial Approval/
Disapproval of Washington’s Human Health Water
Quality Criteria and Implementation Tools.
12 February 21, 2017. Petition for Reconsideration
of EPA’s Partial Disapproval of Washington’s
August 1, 2016 submission on Human Health Water
Quality Criteria and Implementation Tools, and
Repeal of the Final Rule Revision of Certain Federal
Water Quality Standards Applicable to Washington,
81 FR 85417 (November 28, 2016) submitted by
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28495
letter on August 3, 2018, stating its
intent to reconsider the partial
disapproval of Washington’s HHC and
the subsequent promulgation of federal
criteria.13 After a thorough review of the
State’s 2016 submittal and applicable
provisions of the CWA, its
implementing regulations, and
longstanding EPA guidance, on May 10,
2019, the EPA reconsidered its partial
disapproval of Washington’s HHC and
approved all but two of the criteria that
the EPA previously disapproved.14 In
addition, the EPA approved four criteria
for two pollutants (thallium and 2,3,7,8–
TCDD [dioxin]) that the EPA previously
deferred action on in November 2016.
The EPA reaffirmed its November 2016
disapproval of the two criteria that
Washington submitted for arsenic (water
+ organism and organism only).
As provided in 40 CFR 131.21(c),
federally promulgated WQS that are
more stringent than EPA-approved state
WQS remain applicable for purposes of
the CWA until the EPA withdraws the
federal standards. Accordingly, on
August 6, 2019 (84 FR 38150) the EPA
proposed to amend the federal
regulations to withdraw those federally
promulgated HHC for which the EPA
has approved Washington’s HHC and
provided an opportunity for public
comment on this proposed action. The
EPA received comments on the
proposed rulemaking and a listing of the
comments and the Agency’s responses
are contained in the document
‘‘Response to Comments, Revision of
Certain Federal Water Quality Criteria
Applicable to Washington,’’ which can
be accessed at OW docket number EPA–
HQ–OW–2015–0174. The EPA is now
taking action to finalize the withdrawal
of the federal rule as proposed.
The withdrawal of the federally
promulgated criteria will enable
Northwest Pulp & Paper Association, American
Forest and Paper Association, Association of
Washington Business, Greater Spokane
Incorporated, Treated Wood Council, Western
Wood Preservers Institute, Utility Water Act Group
and Washington Farm Bureau.
13 August 3, 2018. Letter from David P. Ross,
Assistant Administrator, Office of Water, EPA to
Penny Shamblin, Counsel for Utility Water Act
Group, Re: Petition for Reconsideration of the
Environmental Protection Agency’s (EPA) Partial
Disapproval of Washington’s Human Health Water
Quality Criteria and Implementation Tools
submitted by the State of Washington on August 1,
2016, and Repeal of the Final Rule Revision of
Certain Federal Water Quality Standards Applicable
to Washington.
14 May 10, 2019. Letter and enclosed Technical
Support Document from Chris Hladick, Regional
Administrator, EPA Region 10 to Maia Bellon,
Director, Department of Ecology, Re: The 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.
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Washington to implement its EPAapproved HHC, consistent with the
federal and state roles contemplated by
the CWA. Consistent with the
cooperative federalism structure of the
CWA, once the EPA approves state WQS
addressing the same pollutants for
which the EPA has promulgated federal
WQS, it is incumbent on the EPA to
withdraw the federal WQS to enable the
EPA-approved state WQS to become the
applicable WQS for CWA purposes.
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III. What are the federal water quality
criteria that the EPA is withdrawing?
As discussed in the proposed
rulemaking (see 84 FR 38150, August 6,
2019), this final rule amends the federal
regulations to withdraw all federal HHC
promulgated for Washington in
November 2016 at 40 CFR 131.45,15
with the exception of criteria for
arsenic, methylmercury, and bis (2chloro-1-methylethyl) ether. For arsenic,
on May 10, 2019, the EPA reaffirmed its
November 2016 disapproval of the two
criteria Washington submitted for
arsenic (water + organism and organism
only), and therefore the federal arsenic
criteria, originally promulgated under
the NTR and now at 40 CFR 131.45 for
Washington remain in place.16 For
priority pollutants methylmercury and
bis (2-chloro-1-methylethyl) ether,
Washington did not submit criteria for
those pollutants in its 2016 WQS
submittal. Therefore, the federal
methylmercury and bis (2-chloro-1methylethyl) ether criteria that the EPA
promulgated on November 28, 2016
(and that became effective on December
28, 2016) remain in effect in the State.
The EPA did not make any changes in
response to the comments received on
the proposed rulemaking. The EPA
received 333 unique comments on the
proposed rulemaking and
approximately 5,000 comments as part
of mass mailing campaigns. The EPA
also held two public hearings on the
proposed rulemaking (an online hearing
on August 28, 2019 and an in-person
hearing in Seattle, Washington on
September 25, 2019) and received
public comments during those hearings.
Brief summaries of the comments and
the EPA’s responses are provided in this
section. As noted previously, a full
accounting of the comments and the
15 Revision of Certain Water Quality Standards
Applicable to Washington, 81 FR 85417 (November
28, 2016).
16 May 10, 2019. Letter and enclosed Technical
Support Document from Chris Hladick, Regional
Administrator, EPA Region 10 to Maia Bellon,
Director, Department of Ecology, Re: The 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.
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Other commenters opposed the EPA’s
proposal to withdraw the federal HHC
and requested that the EPA retain the
federal criteria. Many of these
commenters focused on and described
their opposition to the EPA’s May 10,
2019 decision to approve Washington’s
HHC upon reconsideration. These
commenters asserted that Washington’s
HHC are less stringent than the federal
HHC and therefore expressed concern
that implementation of Washington’s
HHC would reduce protections for
human health, especially among
consumers of large quantities of fish
sourced from the waters subject to the
HHC. Several commenters asserted that
the EPA’s approval of Washington’s
HHC was arbitrary and capricious
because they alleged that Washington’s
HHC are not based on sound scientific
rationale, and accordingly urged the
EPA to retain the federal criteria which
they asserted are based on sound
scientific rationale. The EPA disagrees
with commenters who asserted or
implied that all of Washington’s HHC
are less stringent than the federal HHC.
As described in the EPA’s May 10, 2019
decision document, some of
Washington’s HHC are less stringent
than the federal HHC, and some are
more stringent. Indeed, in 2016 the EPA
approved 45 of Washington’s HHC that
were as stringent or more stringent than
the EPA’s calculated HHC. The EPA also
disagrees with commenters who
asserted that the EPA’s approval was
arbitrary and capricious and that
Washington’s HHC are not based on
sound science. The EPA’s rationale is
thoroughly described in the EPA’s May
10, 2019 decision document, including
the EPA’s conclusion that Washington’s
HHC are based on sound science and are
protective of Washington’s designated
uses.
Commenters also raised concerns
about the EPA’s approval of
Washington’s HHC for Polychlorinated
Biphenyls (PCBs) and requested that
EPA retain the federal PCB criteria.
Some of these commenters asserted that
the EPA lacks authority to reverse its
prior disapproval of Washington’s HHC
and that the reversal and withdrawal of
the federal rule would lead to litigation
and regulatory uncertainty.
The EPA’s authority to promulgate
new or revised federal criteria is not at
issue in this action to withdraw the
federal criteria. Because the EPA has
approved certain HHC developed and
submitted by the State, the federal HHC
that the Agency promulgated after its
initial disapproval of the State’s 2016
submittal are no longer needed. This
action is consistent with the federal and
state roles contemplated by the CWA
(see 40 CFR 131.21(c)). For the EPA’s
rationale for approving Washington’s
HHC, see the May 10, 2019 decision
document.18
17 May 10, 2019. Letter and enclosed Technical
Support Document from Chris Hladick, Regional
Administrator, EPA Region 10 to Maia Bellon,
Director, Department of Ecology, Re: The 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.
18 May 10, 2019. Letter and enclosed Technical
Support Document from Chris Hladick, Regional
Administrator, EPA Region 10 to Maia Bellon,
Director, Department of Ecology, Re: The 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.
Agency’s responses can be found in the
docket for this rulemaking.
A. Comments in Support of the EPA’s
Proposal To Withdraw the Federal HHC
Some commenters supported the
EPA’s May 10, 2019 decision to approve
Washington’s HHC upon
reconsideration and the EPA’s proposal
to withdraw the federal HHC. These
commenters asserted that Washington’s
HHC were sufficiently protective of the
applicable designated uses in the State
and that the federal HHC were
unattainable and costly. These
commenters stated that implementation
of Washington’s HHC will result in
meaningful improvements to water
quality, rather than regulatory
uncertainty. Some commenters also
noted that withdrawing the federal HHC
could result in significant cost savings.
The EPA appreciates the comments in
support of its May 10, 2019 action and
proposal to withdraw the federal HHC.
More information on the EPA’s action to
approve Washington’s HHC upon
reconsideration, including the EPA’s
approval letter and associated Technical
Support Document, can be accessed at
https://www.epa.gov/wqs-tech/waterquality-standards-regulationswashington and in the docket for this
proposed rule.
Some of these commenters also asked
the EPA to approve, upon
reconsideration, Washington’s HHC for
arsenic. Comments concerning the
EPA’s disapproval of Washington’s 2016
arsenic criteria are beyond the scope of
this rulemaking. The EPA’s May 10,
2019 decision document sets forth the
EPA’s rationale for the disapproval.17
B. Comments in Opposition to the EPA’s
Proposal To Withdraw the Federal HHC
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C. Comments Concerning
Methylmercury and Bis (2-Chloro-1Methylethyl) Ether
Several commenters stated that the
EPA should leave the federal HHC in
place for methylmercury and bis (2chloro-1-methylethyl) ether and that the
EPA cannot legally withdraw these HHC
and leave nothing in place. Other
commenters stated that the federal
methylmercury HHC are unattainable
and will result in widespread
impairments across the State. Some of
these commenters questioned the
scientific underpinnings of the
methylmercury HHC. Some commenters
recommended that the EPA promulgate
a revised methylmercury HHC for
Washington of 0.3 mg/kg in fish tissue,
which is the EPA’s CWA Section 304(a)
national recommended criterion for
methylmercury. All commenters who
addressed this issue noted that mercury
is a ubiquitous pollutant in
Washington’s waters. No commenters
provided information on the presence or
absence of bis (2-chloro-1-methylethyl)
ether in Washington’s waters.
CWA Section 303(c)(2)(B) requires
that states ‘‘shall adopt criteria for all
toxic pollutants listed pursuant to
Section 1317(a)(1) of this title for which
criteria have been published under
Section 1314(a) of this title, the
discharge or presence of which in the
affected waters could reasonably be
expected to interfere with those
designated uses adopted by the State, as
necessary to support such designated
uses.’’ The EPA is retaining the federal
HHC for methylmercury and bis (2chloro-1-methylethyl) ether, consistent
with CWA Section 303(c)(2)(B) for the
following reasons: (1) Methylmercury
and bis (2-chloro-1-methylethyl) ether
are both priority pollutants, (2)
commenters and the EPA agree that
methylmercury is ubiquitous in
Washington’s waters, and (3) no
commenters provided information that
counters the prior conclusion that these
priority pollutants could be expected to
interfere with Washington’s uses. The
EPA is not promulgating a revised HHC
value for methylmercury. The 0.3 mg/kg
CWA Section 304(a) recommended HHC
is based on a fish consumption rate of
17.5 g/day rather than the 175 g/day rate
adopted by the State of Washington and
used by the EPA in deriving the federal
HHC for methylmercury. There is
nothing in the EPA’s rulemaking record
that indicates a different fish
consumption rate should be used for a
methylmercury HHC. However, nothing
in this action or in any federal
regulation would preclude a future
rulemaking for HHC using a different
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fish consumption rate that is supported
by a rulemaking record.
The EPA acknowledges the concerns
that some commenters raised about
attainability of the existing federal
methylmercury HHC. In 2010, the EPA
published the comprehensive Guidance
for Implementing the January 2001
Methylmercury Water Quality Criterion
(EPA 823–R–10–001) (‘‘2010
Guidance’’), to aid states and authorized
tribes in implementing the EPA’s
national CWA Section 304(a)
recommended fish tissue-based
methylmercury water quality criterion.
The EPA recommends that Washington,
like certain other states that have
adopted a fish tissue-based
methylmercury criterion, implement the
fish tissue criterion using a combination
of pollutant minimization plans,
monitoring, and effluent limits or trigger
values as appropriate as explained in
the EPA’s 2010 Guidance.
In circumstances where attaining the
methylmercury HHC may not be
feasible, the State could undertake a
new rulemaking and exercise its
discretion in risk management to make
adjustments to the HHC factors in the
EPA’s 2015 304(a) HHC
recommendations, including adopting a
different fish consumption rate that is
supported by a rulemaking record.
Additionally, changes to the applicable
designated use or adoption of a WQS
variance may be an option. 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 for one of the six factors in the
regulation. 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), including if NPDES
permit limits more stringent than
technology-based 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 thereby
allowing dischargers to make water
quality improvements when the WQS is
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28497
not immediately attainable but may be
in the future.
It may be possible for the EPA to
identify widely applicable reduction
targets for mercury and other hard to
treat pollutants by partnering with
interested states and authorized tribes to
compile literature and share data on
available treatment technologies and
source reduction measures. The EPA
has included in the docket for this
rulemaking a brief presentation that the
Agency gave to Washington and a
handful of other states at a WQS
program meeting in September 2019 to
begin a dialogue on these technical
questions for select pollutants. The EPA
anticipates engaging further with
Washington and other interested states
and authorized tribes on how to best
address the challenges associated with
implementing the methylmercury HHC.
The EPA has established the email
address wqs-implementation@epa.gov
for states and authorized tribes to
express interest in and/or provide ideas
for future discussion.
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a significant
regulatory action and was therefore not
submitted to the Office of Management
and Budget (OMB) for review.
B. Executive Order 13771: Reducing
Regulations and Controlling Regulatory
Costs
This action is a deregulatory action
under Executive Order 13771.
C. Paperwork Reduction Act (PRA)
This action does not impose any new
information-collection burden under the
PRA because it is administratively
withdrawing federal requirements that
are no longer needed in Washington. It
does not include any information
collection, reporting, or recordkeeping
requirements. The OMB has previously
approved the information collection
requirements contained in the existing
regulations 40 CFR part 131 and has
assigned OMB control number 2040–
0049.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have
a significant economic impact on a
substantial number of small entities
under the RFA. This action will not
impose any requirements on small
entities. Small entities, such as small
businesses or small governmental
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Federal Register / Vol. 85, No. 93 / Wednesday, May 13, 2020 / Rules and Regulations
jurisdictions, are not directly regulated
by this rule.
E. Unfunded Mandates Reform Act
(UMRA)
This action contains no unfunded
federal mandates under the provisions
of Title II of the UMRA of 1995, 2 U.S.C.
1531–1538, and does not significantly or
uniquely affect small governments. As
this action withdraws certain federally
promulgated criteria, the action imposes
no enforceable duty on any state, local,
or tribal governments, or the private
sector.
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F. Executive Order 13132: Federalism
This action does not have federalism
implications. It will not have substantial
direct effects on the states, on the
relationship between the national
government and the states, or on the
distribution of power and
responsibilities among the various
levels of government. This rule imposes
no regulatory requirements or costs on
any state or local governments. Thus,
Executive Order 13132 does not apply
to this action.
G. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
This action may have tribal
implications. However, it will neither
impose substantial direct compliance
costs on federally recognized tribal
governments, nor preempt tribal law. In
the State of Washington, there are 29
federally recognized Indian tribes. As
part of today’s action, the EPA has met
its responsibilities under Executive
Order 13175 and its Tribal Consultation
Policy.
The EPA initiated consultation with
federally recognized tribal officials
under the EPA’s Policy on Consultation
and Coordination with Indian tribes
early in the process of developing this
rule to allow meaningful and timely
input into its development. The EPA
initially offered tribal consultation on
this rule making on May 21, 2019. EPA
staff then offered two informational
calls for tribal staff on June 4 and 5,
2019, to assist tribes with the
consultation process, including the
tribes’ decisions on whether to accept
the offer to consult. Many tribes
expressed dissatisfaction that EPA did
not offer consultation prior to its May
10, 2019, decision and questioned how
meaningful the EPA’s offer for
consultation was on this rule making as
a result. Between June and November
2019, the EPA’s representatives traveled
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and met in person with 16 tribes. One
tribe considered the meeting to be a
formal government-to-government
consultation. Additionally, members of
the Makah Tribe met with Headquarters
and Region 10 representatives on
October 23, 2019 in Washington, DC,
which the tribe considered to be
consultation.
The tribes expressed opposition to the
EPA’s May 10, 2019 decision and the
withdrawal of the federal HHC. A
central concern voiced by tribes is that
they believe the EPA did not engage in
meaningful consultation with tribal
governments prior to its May 10, 2019
decision. Tribes expressed concern that
treaty rights and the federal
government’s trust responsibility were
not considered adequately by the EPA
in the May 10, 2019 decision. Some of
the tribes questioned the EPA’s
authority to make such a decision.
Tribes described the cultural
importance of fish and water to their
livelihood and the local economy.
Although Washington’s HHC do not
apply in Indian Country, tribes
nonetheless were concerned about the
health impacts of Washington’s HHC on
their off-reservation treaty-reserved
fishing rights and expressed a desire for
‘‘pristine’’ waters for future generations.
Tribes noted that they believe
implementation tools exist for the
regulated community to adapt and meet
the federal criteria. Many of the tribes
indicated that they believe
environmental protection can be
balanced with economic progress,
especially through technology
improvements.
H. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
This rule is not subject to Executive
Order 13045, because it is not
economically significant as defined in
Executive Order 12866, and because the
environmental health or safety risks
addressed by this action do not present
a disproportionate risk to children.
I. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This action is not a ‘‘significant
energy action’’ because it is not likely to
have a significant adverse effect on the
supply, distribution, or use of energy.
J. National Technology Transfer and
Advancement Act
This rulemaking does not involve
technical standards.
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K. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
The EPA believes that this action does
not have disproportionately high and
adverse human health or environmental
effects on minority populations, low
income populations and/or indigenous
peoples, as specified in Executive Order
12898 (59 FR 7629, February 16, 1994).
The EPA is taking final action to amend
the federal regulations to withdraw
certain HHC applicable to waters in the
State of Washington. The withdrawal
will enable Washington to implement
its EPA-approved HHC. The EPA has
previously determined that
Washington’s adopted and EPAapproved criteria are protective of
human health.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of the Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 131
Environmental protection, Indianslands, Intergovernmental relations,
Reporting and recordkeeping
requirements, Water pollution control.
Dated: April 17, 2020.
Andrew Wheeler,
Administrator.
For the reasons set forth in the
preamble, the EPA amends 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).
E:\FR\FM\13MYR1.SGM
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Federal Register / Vol. 85, No. 93 / Wednesday, May 13, 2020 / Rules and Regulations
TABLE 1 TO PARAGRAPH (B)—HUMAN HEALTH CRITERIA FOR WASHINGTON
A
B
Chemical
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)
7440382
108601
1.75
........................
...............................
0.50 ......................
..................
0.04
............................
10
44
............................
a 0.018
400
a 0.14
900
22967926
........................
2.7E–05 ................
0.0001
............................
............................
..................
b 0.03
CAS No.
1. Arsenic * .........................
2. Bis (2-Chloro-1Methylethyl) Ether **.
3. Methylmercury ...............
C
Cancer slope
factor, CSF
(per mg/kg·d)
(mg/kg)
a This
criterion refers to the inorganic form of arsenic only.
b This 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 the EPA’s 2000 Human Health Methodology rearranged to solve for a protective concentration in fish tissue rather than in water.
* 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. 2020–08497 Filed 5–12–20; 8:45 am]
*
*
*
*
listed in the third column of the
following tables.
BILLING CODE 6560–50–P
FOR FURTHER INFORMATION CONTACT:
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 64
[Docket ID FEMA–2020–0005; Internal
Agency Docket No. FEMA–8629]
Suspension of Community Eligibility
Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
AGENCY:
This rule identifies
communities where the sale of flood
insurance has been authorized under
the National Flood Insurance Program
(NFIP) that are scheduled for
suspension on the effective dates listed
within this rule because of
noncompliance with the floodplain
management requirements of the
program. If the Federal Emergency
Management Agency (FEMA) receives
documentation that the community has
adopted the required floodplain
management measures prior to the
effective suspension date given in this
rule, the suspension will not occur and
a notice of this will be provided by
publication in the Federal Register on a
subsequent date. Also, information
identifying the current participation
status of a community can be obtained
from FEMA’s Community Status Book
(CSB). The CSB is available at https://
www.fema.gov/national-floodinsurance-program-community-statusbook.
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SUMMARY:
Effective Dates: The effective
date of each community’s scheduled
suspension is the third date (‘‘Susp.’’)
DATES:
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16:15 May 12, 2020
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If
you want to determine whether a
particular community was suspended
on the suspension date or for further
information, contact Adrienne L.
Sheldon, PE, CFM, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 400 C
Street SW, Washington, DC 20472, (202)
212–3966.
SUPPLEMENTARY INFORMATION: The NFIP
enables property owners to purchase
Federal flood insurance that is not
otherwise generally available from
private insurers. In return, communities
agree to adopt and administer local
floodplain management measures aimed
at protecting lives and new construction
from future flooding. Section 1315 of
the National Flood Insurance Act of
1968, as amended, 42 U.S.C. 4022,
prohibits the sale of NFIP flood
insurance unless an appropriate public
body adopts adequate floodplain
management measures with effective
enforcement measures. The
communities listed in this document no
longer meet that statutory requirement
for compliance with program
regulations, 44 CFR part 59.
Accordingly, the communities will be
suspended on the effective date in the
third column. As of that date, flood
insurance will no longer be available in
the community. We recognize that some
of these communities may adopt and
submit the required documentation of
legally enforceable floodplain
management measures after this rule is
published but prior to the actual
suspension date. These communities
will not be suspended and will continue
to be eligible for the sale of NFIP flood
insurance. A notice withdrawing the
suspension of such communities will be
published in the Federal Register.
In addition, FEMA publishes a Flood
Insurance Rate Map (FIRM) that
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Fmt 4700
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identifies the Special Flood Hazard
Areas (SFHAs) in these communities.
The date of the FIRM, if one has been
published, is indicated in the fourth
column of the table. No direct Federal
financial assistance (except assistance
pursuant to the Robert T. Stafford
Disaster Relief and Emergency
Assistance Act not in connection with a
flood) may be provided for construction
or acquisition of buildings in identified
SFHAs for communities not
participating in the NFIP and identified
for more than a year on FEMA’s initial
FIRM for the community as having
flood-prone areas (section 202(a) of the
Flood Disaster Protection Act of 1973,
42 U.S.C. 4106(a), as amended). This
prohibition against certain types of
Federal assistance becomes effective for
the communities listed on the date
shown in the last column. The
Administrator finds that notice and
public comment procedures under 5
U.S.C. 553(b), are impracticable and
unnecessary because communities listed
in this final rule have been adequately
notified.
Each community receives 6-month,
90-day, and 30-day notification letters
addressed to the Chief Executive Officer
stating that the community will be
suspended unless the required
floodplain management measures are
met prior to the effective suspension
date. Since these notifications were
made, this final rule may take effect
within less than 30 days.
National Environmental Policy Act.
FEMA has determined that the
community suspension(s) included in
this rule is a non-discretionary action
and therefore the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) does not apply.
Regulatory Flexibility Act. The
Administrator has determined that this
rule is exempt from the requirements of
the Regulatory Flexibility Act because
the National Flood Insurance Act of
E:\FR\FM\13MYR1.SGM
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]]>Agencies
[Federal Register Volume 85, Number 93 (Wednesday, May 13, 2020)]
[Rules and Regulations]
[Pages 28494-28499]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08497]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2015-0174; FRL-10008-24-OW]
RIN 2040-AF94
Withdrawal of Certain Federal Water Quality Criteria Applicable
to Washington
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (EPA or Agency) is taking
final action to amend the federal regulations to withdraw certain human
health water quality criteria applicable to waters in the State of
Washington. The EPA is taking this action because the State adopted,
and the EPA approved, human health criteria that the Agency determined
are protective of Washington's designated uses for its waters. In this
action, the EPA is amending the federal regulations to withdraw those
certain human health criteria applicable to Washington but promulgated
by the Agency, as described in the August 6, 2019 proposed rule. The
withdrawal will enable Washington to implement its EPA-approved human
health criteria, submitted on August 1, 2016, and approved on May 10,
2019, as applicable criteria for Clean Water Act (CWA or the Act)
purposes.
DATES: This final rule is effective on June 12, 2020.
ADDRESSES: The EPA has established a docket for this action identified
by Docket ID No. EPA-HQ-OW-2015-0174, at https://www.regulations.gov.
For additional information about the EPA's public docket, visit the EPA
Docket Center homepage at https://www.epa.gov/dockets.
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: [email protected].
SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows:
I. General Information
Does this action apply to me?
II. Background
What are the applicable federal statutory and regulatory
requirements?
III. What are the Federal Water Quality Criteria that the EPA is
withdrawing?
A. Comments in Support of the EPA's Proposal To Withdraw the
Federal HHC
B. Comments in Opposition to the EPA's Proposal To Withdraw the
Federal HHC
C. Comments Concerning Methylmercury and Bis (2-Chloro-1-
Methylethyl) Ether
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
I. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
J. National Technology Transfer and Advancement Act
K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
I. General Information
Does this action apply to me?
This final action withdraws certain federal human health criteria
(HHC) in the State of Washington that are no longer needed due to the
EPA's approval of the corresponding State HHC on May 10, 2019. Entities
discharging pollutants in Washington waters, citizens, as well as the
State of Washington may be interested in this rulemaking, because after
the effective date of this rulemaking Washington's EPA-approved HHC,
rather than the federal HHC, will be the applicable water quality
standards in Washington waters for CWA purposes. This action applies
only to waterbodies in the State of Washington and does not apply to
waters that are within Indian Country as defined in 18 U.S.C. 1151. If
you have questions regarding the applicability of this action to a
particular entity, consult the person identified in the preceding FOR
FURTHER INFORMATION CONTACT section.
II. Background
What are the applicable federal statutory and regulatory requirements?
Consistent with the CWA, the EPA's water quality standards (WQS)
program assigns to states and authorized tribes the primary authority
for adopting
[[Page 28495]]
WQS.\1\ After a state adopts WQS, the state must submit them to the EPA
for review and action in accordance with the CWA. If the EPA finds the
state WQS are based on sound science and protect the state's designated
uses, the CWA requires the EPA to approve those state WQS. The Act
authorizes the EPA to promulgate federal WQS following the EPA's
disapproval of state WQS or following an Administrator's determination
that new or revised WQS are ``necessary to meet the requirements of the
Act.'' \2\
---------------------------------------------------------------------------
\1\ 33 U.S.C. 1313(a), (c).
\2\ 33 U.S.C. 1313(c)(4).
---------------------------------------------------------------------------
On September 14, 2015, the EPA proposed a federal rule to establish
updated HHC in Washington based on an Administrator's determination
that new or revised WQS were necessary to meet the requirements of the
Act. Specifically, in its 2015 proposed rule, the EPA considered data
representing regional and local fish consumption that reflected
consumption levels much higher than the National Toxics Rule (NTR) fish
consumption rate of 6.5 grams/day, and accordingly ``determined that
the federal human health criteria in the NTR as applied to Washington
no longer protect the relevant designated uses of Washington's
waters.'' \3\ To address the Administrator's determination pursuant to
its CWA Section 303(c) authority, the EPA's proposed rulemaking
established HHC using a fish consumption rate of 175 grams/day.\4\ The
EPA also used all of the inputs from the EPA's recently updated 2015
CWA Section 304(a) national recommended water quality criteria for the
protection of human health to calculate the proposed federal
criteria.\5\
---------------------------------------------------------------------------
\3\ Revision of Certain Water Quality Standards Applicable to
Washington, 80 FR 55063, 55066 (September 14, 2015).
\4\ Id. at 55066-55067.
\5\ Id. at 55063, 55066.
---------------------------------------------------------------------------
Following the EPA's 2015 proposed rulemaking, on August 1, 2016,
Washington submitted HHC for the EPA's review.\6\ Washington's criteria
were based on a fish consumption rate of 175 grams/day and incorporated
most of the components of the EPA's updated 2015 CWA Section 304(a) HHC
recommendations.\7\ By using a fish consumption rate of 175 grams/day,
which is consistent with the EPA's proposed rulemaking, Washington's
HHC addressed the basis for the EPA's 2015 Administrator's
determination--that it is necessary to adopt new or revised HHC based
on a higher fish consumption rate.
---------------------------------------------------------------------------
\6\ 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.
\7\ Id.
---------------------------------------------------------------------------
For the reasons explained in the EPA's 2016 disapproval letter and
final federal rule, the EPA disapproved a subset of the HHC that
Washington submitted to the EPA.\8\ The EPA's final federal rule was
issued concurrent with its partial disapproval letter.\9\ In explaining
the rationale underlying the partial disapproval of Washington's August
1, 2016, submittal, the EPA ``agree[d] with Washington's decision to
derive the HHC using a FCR of 175 g/day,'' noting that the value was
consistent with the EPA's final federal rule.\10\ However, the EPA
disagreed with some of the risk management decisions the State made
during the development of its HHC and its decision not to incorporate
all components of the updated 2015 CWA Section 304(a) HHC
recommendations.\11\
---------------------------------------------------------------------------
\8\ November 15, 2016. Letter (EPA Partial Disapproval Letter)
and enclosed Technical Support Document (Partial Disapproval TSD)
from Daniel D. Opalski, Director, Office of Water and Watersheds,
EPA Region 10 to Maia Bellon, Director, Department of Ecology, Re:
EPA's Partial Approval/Disapproval of Washington's Human Health
Water Quality Criteria and Implementation Tools; 81 FR 85417
(``Concurrent with this final rule, EPA is taking action under CWA
303(c) to approve in part, and disapprove in part, the human health
criteria submitted by Washington'').
\9\ Revision of Certain Water Quality Standards Applicable to
Washington, 81 FR 85417 (November 28, 2016).
Contrary to at least one comment letter EPA received prior to
its May 10, 2019 Decision to Approve Washington's criteria, the EPA
did not provide the State with 90 days to remedy the partial
disapproval, as envisioned in Section 303(c)(3) of the Act. See May
7, 2019 Letter from the Lower Elwha Klallam Tribe to Administrator
Andrew Wheeler, EPA, Re: Washington State Water Quality Standards at
4.
\10\ Partial Disapproval TSD at 16.
\11\ November 15, 2016. Letter (EPA Partial Disapproval Letter)
and enclosed Technical Support Document (Partial Disapproval TSD)
from Daniel D. Opalski, Director, Office of Water and Watersheds,
EPA Region 10 to Maia Bellon, Director, Department of Ecology, Re:
EPA's Partial Approval/Disapproval of Washington's Human Health
Water Quality Criteria and Implementation Tools.
---------------------------------------------------------------------------
Although the EPA promulgated HHC for Washington in the NTR, and
subsequently in November 2016, the EPA prefers that states maintain
primary responsibility and establish their own WQS in keeping with the
text and structure of the CWA. In response to a February 21, 2017,
petition from several entities asking the EPA to reconsider the partial
disapproval of Washington's August 2016 HHC,\12\ the EPA issued a
letter on August 3, 2018, stating its intent to reconsider the partial
disapproval of Washington's HHC and the subsequent promulgation of
federal criteria.\13\ After a thorough review of the State's 2016
submittal and applicable provisions of the CWA, its implementing
regulations, and longstanding EPA guidance, on May 10, 2019, the EPA
reconsidered its partial disapproval of Washington's HHC and approved
all but two of the criteria that the EPA previously disapproved.\14\ In
addition, the EPA approved four criteria for two pollutants (thallium
and 2,3,7,8-TCDD [dioxin]) that the EPA previously deferred action on
in November 2016. The EPA reaffirmed its November 2016 disapproval of
the two criteria that Washington submitted for arsenic (water +
organism and organism only).
---------------------------------------------------------------------------
\12\ February 21, 2017. Petition for Reconsideration of EPA's
Partial Disapproval of Washington's August 1, 2016 submission on
Human Health Water Quality Criteria and Implementation Tools, and
Repeal of the Final Rule Revision of Certain Federal Water Quality
Standards Applicable to Washington, 81 FR 85417 (November 28, 2016)
submitted by Northwest Pulp & Paper Association, American Forest and
Paper Association, Association of Washington Business, Greater
Spokane Incorporated, Treated Wood Council, Western Wood Preservers
Institute, Utility Water Act Group and Washington Farm Bureau.
\13\ August 3, 2018. Letter from David P. Ross, Assistant
Administrator, Office of Water, EPA to Penny Shamblin, Counsel for
Utility Water Act Group, Re: Petition for Reconsideration of the
Environmental Protection Agency's (EPA) Partial Disapproval of
Washington's Human Health Water Quality Criteria and Implementation
Tools submitted by the State of Washington on August 1, 2016, and
Repeal of the Final Rule Revision of Certain Federal Water Quality
Standards Applicable to Washington.
\14\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The 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.
---------------------------------------------------------------------------
As provided in 40 CFR 131.21(c), federally promulgated WQS that are
more stringent than EPA-approved state WQS remain applicable for
purposes of the CWA until the EPA withdraws the federal standards.
Accordingly, on August 6, 2019 (84 FR 38150) the EPA proposed to amend
the federal regulations to withdraw those federally promulgated HHC for
which the EPA has approved Washington's HHC and provided an opportunity
for public comment on this proposed action. The EPA received comments
on the proposed rulemaking and a listing of the comments and the
Agency's responses are contained in the document ``Response to
Comments, Revision of Certain Federal Water Quality Criteria Applicable
to Washington,'' which can be accessed at OW docket number EPA-HQ-OW-
2015-0174. The EPA is now taking action to finalize the withdrawal of
the federal rule as proposed.
The withdrawal of the federally promulgated criteria will enable
[[Page 28496]]
Washington to implement its EPA-approved HHC, consistent with the
federal and state roles contemplated by the CWA. Consistent with the
cooperative federalism structure of the CWA, once the EPA approves
state WQS addressing the same pollutants for which the EPA has
promulgated federal WQS, it is incumbent on the EPA to withdraw the
federal WQS to enable the EPA-approved state WQS to become the
applicable WQS for CWA purposes.
III. What are the federal water quality criteria that the EPA is
withdrawing?
As discussed in the proposed rulemaking (see 84 FR 38150, August 6,
2019), this final rule amends the federal regulations to withdraw all
federal HHC promulgated for Washington in November 2016 at 40 CFR
131.45,\15\ with the exception of criteria for arsenic, methylmercury,
and bis (2-chloro-1-methylethyl) ether. For arsenic, on May 10, 2019,
the EPA reaffirmed its November 2016 disapproval of the two criteria
Washington submitted for arsenic (water + organism and organism only),
and therefore the federal arsenic criteria, originally promulgated
under the NTR and now at 40 CFR 131.45 for Washington remain in
place.\16\ For priority pollutants methylmercury and bis (2-chloro-1-
methylethyl) ether, Washington did not submit criteria for those
pollutants in its 2016 WQS submittal. Therefore, the federal
methylmercury and bis (2-chloro-1-methylethyl) ether criteria that the
EPA promulgated on November 28, 2016 (and that became effective on
December 28, 2016) remain in effect in the State.
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\15\ Revision of Certain Water Quality Standards Applicable to
Washington, 81 FR 85417 (November 28, 2016).
\16\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The 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.
---------------------------------------------------------------------------
The EPA did not make any changes in response to the comments
received on the proposed rulemaking. The EPA received 333 unique
comments on the proposed rulemaking and approximately 5,000 comments as
part of mass mailing campaigns. The EPA also held two public hearings
on the proposed rulemaking (an online hearing on August 28, 2019 and an
in-person hearing in Seattle, Washington on September 25, 2019) and
received public comments during those hearings. Brief summaries of the
comments and the EPA's responses are provided in this section. As noted
previously, a full accounting of the comments and the Agency's
responses can be found in the docket for this rulemaking.
A. Comments in Support of the EPA's Proposal To Withdraw the Federal
HHC
Some commenters supported the EPA's May 10, 2019 decision to
approve Washington's HHC upon reconsideration and the EPA's proposal to
withdraw the federal HHC. These commenters asserted that Washington's
HHC were sufficiently protective of the applicable designated uses in
the State and that the federal HHC were unattainable and costly. These
commenters stated that implementation of Washington's HHC will result
in meaningful improvements to water quality, rather than regulatory
uncertainty. Some commenters also noted that withdrawing the federal
HHC could result in significant cost savings.
The EPA appreciates the comments in support of its May 10, 2019
action and proposal to withdraw the federal HHC. More information on
the EPA's action to approve Washington's HHC upon reconsideration,
including the EPA's approval letter and associated Technical Support
Document, can be accessed at https://www.epa.gov/wqs-tech/water-quality-standards-regulations-washington and in the docket for this
proposed rule.
Some of these commenters also asked the EPA to approve, upon
reconsideration, Washington's HHC for arsenic. Comments concerning the
EPA's disapproval of Washington's 2016 arsenic criteria are beyond the
scope of this rulemaking. The EPA's May 10, 2019 decision document sets
forth the EPA's rationale for the disapproval.\17\
---------------------------------------------------------------------------
\17\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The 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.
---------------------------------------------------------------------------
B. Comments in Opposition to the EPA's Proposal To Withdraw the Federal
HHC
Other commenters opposed the EPA's proposal to withdraw the federal
HHC and requested that the EPA retain the federal criteria. Many of
these commenters focused on and described their opposition to the EPA's
May 10, 2019 decision to approve Washington's HHC upon reconsideration.
These commenters asserted that Washington's HHC are less stringent than
the federal HHC and therefore expressed concern that implementation of
Washington's HHC would reduce protections for human health, especially
among consumers of large quantities of fish sourced from the waters
subject to the HHC. Several commenters asserted that the EPA's approval
of Washington's HHC was arbitrary and capricious because they alleged
that Washington's HHC are not based on sound scientific rationale, and
accordingly urged the EPA to retain the federal criteria which they
asserted are based on sound scientific rationale. The EPA disagrees
with commenters who asserted or implied that all of Washington's HHC
are less stringent than the federal HHC. As described in the EPA's May
10, 2019 decision document, some of Washington's HHC are less stringent
than the federal HHC, and some are more stringent. Indeed, in 2016 the
EPA approved 45 of Washington's HHC that were as stringent or more
stringent than the EPA's calculated HHC. The EPA also disagrees with
commenters who asserted that the EPA's approval was arbitrary and
capricious and that Washington's HHC are not based on sound science.
The EPA's rationale is thoroughly described in the EPA's May 10, 2019
decision document, including the EPA's conclusion that Washington's HHC
are based on sound science and are protective of Washington's
designated uses.
Commenters also raised concerns about the EPA's approval of
Washington's HHC for Polychlorinated Biphenyls (PCBs) and requested
that EPA retain the federal PCB criteria. Some of these commenters
asserted that the EPA lacks authority to reverse its prior disapproval
of Washington's HHC and that the reversal and withdrawal of the federal
rule would lead to litigation and regulatory uncertainty.
The EPA's authority to promulgate new or revised federal criteria
is not at issue in this action to withdraw the federal criteria.
Because the EPA has approved certain HHC developed and submitted by the
State, the federal HHC that the Agency promulgated after its initial
disapproval of the State's 2016 submittal are no longer needed. This
action is consistent with the federal and state roles contemplated by
the CWA (see 40 CFR 131.21(c)). For the EPA's rationale for approving
Washington's HHC, see the May 10, 2019 decision document.\18\
---------------------------------------------------------------------------
\18\ May 10, 2019. Letter and enclosed Technical Support
Document from Chris Hladick, Regional Administrator, EPA Region 10
to Maia Bellon, Director, Department of Ecology, Re: The 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.
---------------------------------------------------------------------------
[[Page 28497]]
C. Comments Concerning Methylmercury and Bis (2-Chloro-1-Methylethyl)
Ether
Several commenters stated that the EPA should leave the federal HHC
in place for methylmercury and bis (2-chloro-1-methylethyl) ether and
that the EPA cannot legally withdraw these HHC and leave nothing in
place. Other commenters stated that the federal methylmercury HHC are
unattainable and will result in widespread impairments across the
State. Some of these commenters questioned the scientific underpinnings
of the methylmercury HHC. Some commenters recommended that the EPA
promulgate a revised methylmercury HHC for Washington of 0.3 mg/kg in
fish tissue, which is the EPA's CWA Section 304(a) national recommended
criterion for methylmercury. All commenters who addressed this issue
noted that mercury is a ubiquitous pollutant in Washington's waters. No
commenters provided information on the presence or absence of bis (2-
chloro-1-methylethyl) ether in Washington's waters.
CWA Section 303(c)(2)(B) requires that states ``shall adopt
criteria for all toxic pollutants listed pursuant to Section 1317(a)(1)
of this title for which criteria have been published under Section
1314(a) of this title, the discharge or presence of which in the
affected waters could reasonably be expected to interfere with those
designated uses adopted by the State, as necessary to support such
designated uses.'' The EPA is retaining the federal HHC for
methylmercury and bis (2-chloro-1-methylethyl) ether, consistent with
CWA Section 303(c)(2)(B) for the following reasons: (1) Methylmercury
and bis (2-chloro-1-methylethyl) ether are both priority pollutants,
(2) commenters and the EPA agree that methylmercury is ubiquitous in
Washington's waters, and (3) no commenters provided information that
counters the prior conclusion that these priority pollutants could be
expected to interfere with Washington's uses. The EPA is not
promulgating a revised HHC value for methylmercury. The 0.3 mg/kg CWA
Section 304(a) recommended HHC is based on a fish consumption rate of
17.5 g/day rather than the 175 g/day rate adopted by the State of
Washington and used by the EPA in deriving the federal HHC for
methylmercury. There is nothing in the EPA's rulemaking record that
indicates a different fish consumption rate should be used for a
methylmercury HHC. However, nothing in this action or in any federal
regulation would preclude a future rulemaking for HHC using a different
fish consumption rate that is supported by a rulemaking record.
The EPA acknowledges the concerns that some commenters raised about
attainability of the existing federal methylmercury HHC. In 2010, the
EPA published the comprehensive Guidance for Implementing the January
2001 Methylmercury Water Quality Criterion (EPA 823-R-10-001) (``2010
Guidance''), to aid states and authorized tribes in implementing the
EPA's national CWA Section 304(a) recommended fish tissue-based
methylmercury water quality criterion. The EPA recommends that
Washington, like certain other states that have adopted a fish tissue-
based methylmercury criterion, implement the fish tissue criterion
using a combination of pollutant minimization plans, monitoring, and
effluent limits or trigger values as appropriate as explained in the
EPA's 2010 Guidance.
In circumstances where attaining the methylmercury HHC may not be
feasible, the State could undertake a new rulemaking and exercise its
discretion in risk management to make adjustments to the HHC factors in
the EPA's 2015 304(a) HHC recommendations, including adopting a
different fish consumption rate that is supported by a rulemaking
record. Additionally, changes to the applicable designated use or
adoption of a WQS variance may be an option. 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 for one
of the six factors in the regulation. 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), including if NPDES permit limits more stringent
than technology-based 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
thereby allowing dischargers to make water quality improvements when
the WQS is not immediately attainable but may be in the future.
It may be possible for the EPA to identify widely applicable
reduction targets for mercury and other hard to treat pollutants by
partnering with interested states and authorized tribes to compile
literature and share data on available treatment technologies and
source reduction measures. The EPA has included in the docket for this
rulemaking a brief presentation that the Agency gave to Washington and
a handful of other states at a WQS program meeting in September 2019 to
begin a dialogue on these technical questions for select pollutants.
The EPA anticipates engaging further with Washington and other
interested states and authorized tribes on how to best address the
challenges associated with implementing the methylmercury HHC. The EPA
has established the email address [email protected] for states
and authorized tribes to express interest in and/or provide ideas for
future discussion.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is a deregulatory action under Executive Order 13771.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information-collection burden
under the PRA because it is administratively withdrawing federal
requirements that are no longer needed in Washington. It does not
include any information collection, reporting, or recordkeeping
requirements. The OMB has previously approved the information
collection requirements contained in the existing regulations 40 CFR
part 131 and has assigned OMB control number 2040-0049.
D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Small
entities, such as small businesses or small governmental
[[Page 28498]]
jurisdictions, are not directly regulated by this rule.
E. Unfunded Mandates Reform Act (UMRA)
This action contains no unfunded federal mandates under the
provisions of Title II of the UMRA of 1995, 2 U.S.C. 1531-1538, and
does not significantly or uniquely affect small governments. As this
action withdraws certain federally promulgated criteria, the action
imposes no enforceable duty on any state, local, or tribal governments,
or the private sector.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. This rule
imposes no regulatory requirements or costs on any state or local
governments. Thus, Executive Order 13132 does not apply to this action.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action may have tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. In the State of Washington,
there are 29 federally recognized Indian tribes. As part of today's
action, the EPA has met its responsibilities under Executive Order
13175 and its Tribal Consultation Policy.
The EPA initiated consultation with federally recognized tribal
officials under the EPA's Policy on Consultation and Coordination with
Indian tribes early in the process of developing this rule to allow
meaningful and timely input into its development. The EPA initially
offered tribal consultation on this rule making on May 21, 2019. EPA
staff then offered two informational calls for tribal staff on June 4
and 5, 2019, to assist tribes with the consultation process, including
the tribes' decisions on whether to accept the offer to consult. Many
tribes expressed dissatisfaction that EPA did not offer consultation
prior to its May 10, 2019, decision and questioned how meaningful the
EPA's offer for consultation was on this rule making as a result.
Between June and November 2019, the EPA's representatives traveled and
met in person with 16 tribes. One tribe considered the meeting to be a
formal government-to-government consultation. Additionally, members of
the Makah Tribe met with Headquarters and Region 10 representatives on
October 23, 2019 in Washington, DC, which the tribe considered to be
consultation.
The tribes expressed opposition to the EPA's May 10, 2019 decision
and the withdrawal of the federal HHC. A central concern voiced by
tribes is that they believe the EPA did not engage in meaningful
consultation with tribal governments prior to its May 10, 2019
decision. Tribes expressed concern that treaty rights and the federal
government's trust responsibility were not considered adequately by the
EPA in the May 10, 2019 decision. Some of the tribes questioned the
EPA's authority to make such a decision. Tribes described the cultural
importance of fish and water to their livelihood and the local economy.
Although Washington's HHC do not apply in Indian Country, tribes
nonetheless were concerned about the health impacts of Washington's HHC
on their off-reservation treaty-reserved fishing rights and expressed a
desire for ``pristine'' waters for future generations. Tribes noted
that they believe implementation tools exist for the regulated
community to adapt and meet the federal criteria. Many of the tribes
indicated that they believe environmental protection can be balanced
with economic progress, especially through technology improvements.
H. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
This rule is not subject to Executive Order 13045, because it is
not economically significant as defined in Executive Order 12866, and
because the environmental health or safety risks addressed by this
action do not present a disproportionate risk to children.
I. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
J. National Technology Transfer and Advancement Act
This rulemaking does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes that this action does not have disproportionately
high and adverse human health or environmental effects on minority
populations, low income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
EPA is taking final action to amend the federal regulations to withdraw
certain HHC applicable to waters in the State of Washington. The
withdrawal will enable Washington to implement its EPA-approved HHC.
The EPA has previously determined that Washington's adopted and EPA-
approved criteria are protective of human health.
L. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 131
Environmental protection, Indians-lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.
Dated: April 17, 2020.
Andrew Wheeler,
Administrator.
For the reasons set forth in the preamble, the EPA amends 40 CFR
part 131 as follows:
PART 131--WATER QUALITY STANDARDS
0
1. The authority citation for part 131 continues to read as follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--Federally Promulgated Water Quality Standards
0
2. Amend Sec. 131.45 by revising paragraph (b) to read as follows:
Sec. 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).
[[Page 28499]]
Table 1 to Paragraph (b)--Human Health Criteria for Washington
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A B C
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Cancer slope Reference Bio- Water &
factor, CSF Relative source contribution, dose, RfD Bio-accumulation concentration organisms
Chemical CAS No. (per mg/ RSC (-) (mg/ factor (L/kg factor (L/kg ([micro]g/ Organisms only ([micro]g/L)
kg[middot]d) kg[middot]d) tissue) tissue) L)
(B1) (B2)........................... (B3) (B4) (B5) (C1) (C2)
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1. Arsenic *........................... 7440382 1.75 ............................... ............ ................ 44 \a\ 0.018 \a\ 0.14
2. Bis (2-Chloro-1-Methylethyl) Ether 108601 .............. 0.50........................... 0.04 10 ................ 400 900
**.
3. Methylmercury....................... 22967926 .............. 2.7E-05........................ 0.0001 ................ ................ .......... \b\ 0.03 (mg/kg)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ This criterion refers to the inorganic form of arsenic only.
\b\ This 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 the EPA's 2000 Human Health Methodology rearranged to solve for a protective concentration in
fish tissue rather than in water.
* 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. 2020-08497 Filed 5-12-20; 8:45 am]
BILLING CODE 6560-50-P
