[Federal Register Volume 81, Number 76 (Wednesday, April 20, 2016)]
[Proposed Rules]
[Pages 23239-23267]
[FR Doc No: 2016-09025]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2015-0804; FRL-9945-03-OW]
RIN 2040-AF59

Proposal of Certain Federal Water Quality Standards Applicable to
Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) proposes federal
Clean Water Act (CWA) water quality standards (WQS) that would apply to
certain waters under the state of Maine's jurisdiction. EPA proposes
human health criteria (HHC) to protect the sustenance fishing use in
those waters in Indian lands and for waters subject to sustenance
fishing rights under the Maine Implementing Act (MIA) based on a fish
consumption rate that represents an unsuppressed level of fish
consumption by the four federally recognized tribes. EPA proposes six
additional WQS for waters in Indian lands in Maine, two WQS for all
waters in Maine including waters in Indian lands, and one WQS for
waters in Maine outside of Indian lands. These proposed WQS take into
account the best available science, including local and regional
information, as well as applicable EPA policies, guidance, and legal
requirements, to protect human health and aquatic life. EPA proposes
these WQS to address various disapprovals of Maine's standards that EPA
issued in February, March, and June 2015, and to address the
Administrator's determination that Maine's disapproved HHC are not
adequate to protect the designated use of sustenance fishing for
certain waters.

DATES: Comments must be received on or before June 20, 2016.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2015-0804 at http://www.regulations.gov. Follow the online instructions
for submitting comments. Once submitted, comments cannot be edited or
removed from Regulations.gov. EPA may publish any comment received to
its public docket. Do not submit electronically any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e. on the Web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit http://www.epa.gov/dockets/commenting-epa-dockets. EPA is offering two virtual public
hearings so that interested parties may also provide oral comments on
this proposed rule. The first hearing will be on Tuesday, June 7, 2016
from 5:00 p.m. to 7:00 p.m. Eastern Daylight Time. The second hearing
will be on Thursday, June 9, 2016 from 9:00 a.m. to 11:00 a.m. Eastern
Daylight Time. For more details on the public hearings and a link to
register, please visit http://www.epa.gov/wqs-tech/proposed-rule-maine-water-quality-standards.

FOR FURTHER INFORMATION CONTACT: Jennifer Brundage, Office of Water,
Standards and Health Protection Division (4305T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW., Washington, DC 20460;
telephone number:<PHONE_NUMBER>; email address:
<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows:

I. General Information
    Does this action apply to me?
II. Background
    A. Statutory and Regulatory Background
    B. EPA's Disapprovals of Portions of Maine's Water Quality
Standards
    C. Scope of Waters
    D. Applicability of EPA Promulgated Water Quality Standards When
Final
III. CWA 303(c)(4)(B) Determination of Necessity for Human Health
Criteria That Protect Sustenance Fishing
IV. Proposed Water Quality Standards
    A. Proposed WQS for Waters in Indian Lands in Maine and for
Waters Outside of Indian Lands in Maine Where the Sustenance Fishing
Designated Use Established by 30 M.R.S. 6207(4) and (9) Applies
    B. Proposed WQS for Waters in Indian Lands in Maine
    C. Proposed WQS for All Waters in Maine
    D. Proposed WQS for Waters in Maine Outside of Indian Lands
V. Economic Analysis
    A. Identifying Affected Entities
    B. Method for Estimating Costs
    C. Results
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 13563 (Improving Regulation and Regulatory Review)
    B. Paperwork Reduction Act

    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132
    F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
    G. Executive Order 13045 (Protection of Children From
Environmental Health and Safety Risks)
    H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
    I. National Technology Transfer and Advancement Act of 1995
    J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations)

I. General Information

Does this action apply to me?

    Entities such as industries, stormwater management districts, or
publicly owned treatment works (POTWs) that discharge pollutants to
waters of the United States in Maine could be indirectly affected by
this rulemaking, because federal WQS promulgated by EPA are applicable
to CWA regulatory programs, such as National Pollutant Discharge
Elimination System (NPDES) permitting. Citizens concerned with water
quality in Maine, including members of the federally recognized Indian
tribes in Maine, could also be interested in this rulemaking.
Dischargers that could potentially be affected include the following:

      Table 1--Dischargers Potentially Affected by This Rulemaking
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                                      Examples of potentially affected
             Category                             entities
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Industry..........................  Industries discharging pollutants to
                                     waters of the United States in
                                     Maine.
Municipalities....................  Publicly owned treatment works or
                                     other facilities discharging
                                     pollutants to waters of the United
                                     States in Maine.
Stormwater Management Districts...  Entities responsible for managing
                                     stormwater runoff in the state of
                                     Maine.
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    This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities that could be indirectly affected
by this action. Any parties or entities who depend upon or contribute
to the water quality of Maine's waters could be affected by this
proposed rule. To determine whether your facility or activities could
be affected by this action, you should carefully examine this proposed
rule. If you have questions regarding the applicability of this action
to a particular entity, consult the person listed in the FOR FURTHER
INFORMATION CONTACT section.

II. Background

A. Statutory and Regulatory Background

1. Clean Water Act (CWA)
    CWA section 101(a)(2) establishes as a national goal ``water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife, and recreation in and on the water, wherever
attainable.'' These are commonly referred to as the ``fishable/
swimmable'' goals of the CWA. EPA interprets ``fishable'' uses to
include, at a minimum, designated uses providing for the protection of
aquatic communities and human health related to consumption of fish and
shellfish.\1\
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    \1\ USEPA. 2000. Memorandum #WQSP-00-03. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. http://water.epa.gov/scitech/swguidance/standards/upload/2000_10_31_standards_shellfish.pdf.
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    CWA section 303(c) (33 U.S.C. 1313(c)) directs states to adopt
water quality standards (WQS) for waters under their jurisdiction
subject to the CWA. CWA section 303(c)(2)(A) and EPA's implementing
regulations at 40 CFR part 131 require, among other things, that a
state's WQS specify appropriate designated uses of the waters, and
water quality criteria to protect those uses that are based on sound
scientific rationale. EPA's regulations at 40 CFR 131.11(a)(1) provide
that such criteria ``must be based on sound scientific rationale and
must contain sufficient parameters or constituents to protect the
designated use.'' In addition, 40 CFR 131.10(b) provides that ``[i]n
designating uses of a water body and the appropriate criteria for those
uses, the state shall take into consideration the water quality
standards of downstream waters and ensure that its water quality
standards provide for the attainment and maintenance of the water
quality standards of downstream waters.''
    States are required to review applicable WQS at least once every
three years and, if appropriate, revise or adopt new standards (CWA
section 303(c)(1)). Any new or revised WQS must be submitted to EPA for
review, to determine whether it meets the CWA's requirements, and for
approval or disapproval (CWA section 303(c)(2)(A) and (c)(3)). If EPA
disapproves a state's new or revised WQS, the CWA provides the state
ninety days to adopt a revised WQS that meets CWA requirements, and if
it fails to do so, EPA shall promptly propose and then promulgate such
standard unless EPA approves a state replacement WQS first (CWA section
303(c)(3) and (c)(4)(A)). If the state adopts and EPA approves a state
replacement WQS after EPA promulgates a standard, EPA then withdraws
its promulgation. CWA section 303(c)(4)(B) authorizes the Administrator
to determine, even in the absence of a state submission, that a new or
revised standard is necessary to meet CWA requirements. Upon making
such a determination, EPA shall promptly propose, and then within
ninety days promulgate, any such new or revised standard unless prior
to such promulgation, the state has adopted a revised or new WQS which
EPA determines to be in accordance with the CWA.
    Under CWA section 304(a), EPA periodically publishes water quality
criteria recommendations for states to consider when adopting water
quality criteria for particular pollutants to protect the CWA section
101(a)(2) goal uses. For example, in 2015, EPA updated its 304(a)
recommended criteria for human health for 94 pollutants (the 2015
criteria update).\2\ Where EPA has published recommended criteria,
states should consider adopting water quality criteria based on EPA's
CWA section 304(a) criteria, section 304(a) criteria modified to
reflect site-specific conditions, or other scientifically defensible
methods (40 CFR 131.11(b)(1)). CWA section 303(c)(2)(B) requires states
to adopt numeric criteria for all toxic pollutants listed pursuant to
CWA section 307(a)(1) for which EPA has published 304(a) criteria, as
necessary, to support the states' designated uses.
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    \2\ Final Updated Ambient Water Quality Criteria for the
Protection of Human Health, (80 FR 36986, June 29, 2015). See also:
USEPA. 2015. Final 2015 Updated National Recommended Human Health
Criteria. U.S. Environmental Protection Agency, Office of Water,
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.

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2. Maine Indian Settlement Acts
    There are four federally recognized Indian tribes in Maine
represented by five governing bodies. The Penobscot Nation and the
Passamaquoddy Tribe have reservations and trust land holdings in
central and coastal Maine. The Passamaquoddy Tribe has two governing
bodies, one on the Pleasant Point Reservation and another on the Indian
Township Reservation. The Houlton Band of Maliseet Indians and the
Aroostook Band of Micmacs have trust lands further north in the state.
To simplify the discussion of the legal framework that applies to each
Tribe's territory, EPA will refer to the Penobscot Nation and the
Passamaquoddy Tribe together as the ``Southern Tribes'' and the Houlton
Band of Maliseet Indians and Aroostook Band of Micmacs as the
``Northern Tribes.'' EPA acknowledges that these are collective
appellations the tribes themselves have not adopted, and the Agency
uses them solely to simplify this discussion.
    In 1980, Congress passed the Maine Indian Claims Settlement Act
(MICSA) that resolved litigation in which the Southern Tribes asserted
land claims to a large portion of the state of Maine. 25 U.S.C. 1721,
et seq. MICSA ratified a state statute passed in 1979, the Maine
Implementing Act (MIA, 30 M.R.S. 6201, et seq.), which was designed to
embody the agreement reached between the state and the Southern Tribes.
In 1981, MIA was amended to include provisions for land to be taken
into trust for the Houlton Band of Maliseet Indians, as provided for in
MICSA. 30 M.R.S. 6205-A; 25 U.S.C. 1724(d)(1). Since it is Congress
that has plenary authority as to federally recognized Indian tribes,
MIA's provisions concerning jurisdiction and the status of the tribes
are effective as a result of, and consistent with, the Congressional
ratification in MICSA.
    In 1989, the Maine legislature passed the Micmac Settlement Act
(MSA) to embody an agreement as to the status of the Aroostook Band of
Micmacs. 30 M.R.S. 7201, et seq. In 1991, Congress passed the Aroostook
Band of Micmacs Settlement Act (ABMSA), which ratified the MSA. 25
U.S.C. 1721, Act Nov. 26, 1991, Public Law 102-171, 105 Stat. 1143. One
principal purpose of both statutes was to give the Micmacs the same
settlement that had been provided to the Maliseets in MICSA. See ABMSA
2(a)(4) and (5). In 2007, the U.S. Court of Appeals for the First
Circuit confirmed that the Micmacs and Maliseets are subject to the
same jurisdictional provisions in MICSA. Aroostook Band of Micmacs v.
Ryan, 484 F.3d 41 (1st Cir. 2007). Where appropriate, this preamble
discussion will refer to the combination of MICSA, MIA, ABMSA, and MSA
as the ``settlement acts.''
    As discussed in greater detail in EPA's February 2, 2015, decision
disapproving certain Maine WQS in waters in Indian lands, a key purpose
of the settlement acts was to confirm and expand the Tribes' land base,
in the form of both reservations and trust lands, so that the Tribes
may preserve their culture and sustenance practices, including
sustenance fishing. For the Passamaquoddy Tribe and Penobscot Nation,
the settlement acts expressly confirmed an aboriginal right to
sustenance fishing in their reservations. See 30 M.R.S. 6207(4).
    The legislative record of the settlement acts makes clear that
Congress also intended to ensure the tribes' continuing ability to
practice their traditional sustenance lifeways, including fishing, from
their trust lands. With regard to the Passamaquoddy and Penobscot trust
lands, legislative intent to provide for tribal sustenance fishing
practices is, for example, reflected in MIA provisions which grant
tribal control of fishing in certain trust waters and require the
consideration of tribal sustenance practices in the setting of fishing
regulations for the remaining trust waters. See 30 M.R.S. 6207(1), (3).
As for the Micmacs and Maliseets, the settlement acts similarly provide
for the opportunity to continue their sustenance fishing practices,
though subject to more direct state regulation than that of the
Passamaquoddy or Penobscot. In its February 2, 2015, decision, EPA
concluded that MICSA directly provides the state with jurisdiction to
set WQS in the Northern Tribes' trust lands and that MICSA also
ratifies provisions of MIA that provide the state with such authority
in the Southern Tribes' territories. That decision provided a detailed
explanation of the legal basis for the state's jurisdiction to set WQS
in waters in Indian lands in Maine. Because of the unique
jurisdictional formula Congress ratified in the settlement acts, EPA is
in the unusual position of reviewing state WQS in waters in Indian
lands.\3\
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    \3\ Generally, the norm elsewhere in the country is that EPA has
authority to set WQS for Indian country waters, with tribes that
have obtained treatment in a manner similar to a state under CWA
section 518 gaining authority to set WQS for their reservations.
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    Having disapproved certain state WQS longer than ninety days ago,
as explained in section II.B., EPA is required by the CWA to promptly
propose and then promulgate federal standards unless, in the meantime,
the state adopts and EPA approves state replacement WQS that address
EPA's disapproval.

B. EPA's Disapprovals of Portions of Maine Water Quality Standards

    On February 2, March 16, and June 5, 2015, EPA disapproved a number
of Maine's new and revised WQS. These disapproval letters are available
in the docket for this rulemaking. These decisions were prompted by an
on-going lawsuit initiated by Maine against EPA. As discussed further
below, some of the disapprovals applied only to waters in Indian lands
in Maine, while others applied to waters throughout the state or to
waters in the state outside of Indian lands.\4\ EPA concluded that the
disapproved WQS did not adequately protect designated uses related to
the protection of human health and/or aquatic life. EPA requested that
the state revise its WQS to address the issues identified in the
disapprovals. The statutory 90-day timeframe provided to the state to
revise its WQS has passed with respect to all of the disapproved WQS.
The state has filed an amended complaint as part of an ongoing lawsuit
challenging EPA's February 2, 2015 disapprovals. Discussed below are
those disapprovals for which EPA today proposes new and revised WQS.\5\
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    \4\ As discussed above, unlike in other states, Maine has the
authority to promulgate WQS for waters in Indian lands in Maine, as
a result of state and federal statutes that resolved the land claims
of tribes in Maine.
    \5\ EPA's March and June decisions included several disapprovals
for which no promulgation is necessary, and therefore those
disapprovals are not discussed herein. Those disapprovals related to
certain pesticide and chemical discharge provisions, certain
exceptions to prohibitions on discharges to Class AA and SA waters,
and the reclassification of a 0.3 mile segment of Long Creek that
flows through Westbrook, Maine. In addition, EPA is not promulgating
WQS related to certain HHC that EPA disapproved for the reasons
discussed in section IV.A.1.c.
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1. Disapprovals That Apply Only to Waters in Indian Lands in Maine
    In its February 2015 decision, EPA concluded that MICSA granted the
state authority to set WQS in waters in Indian lands. EPA also
concluded that in assessing whether the state's WQS were approvable for
waters in Indian lands, EPA must effectuate the CWA requirement that
WQS must protect applicable designated uses and be based on sound
science in consideration of the fundamental purpose for which land was
set aside for the tribes under the Indian settlement acts in Maine. EPA
found that those settlement acts, which include MICSA and other state
and federal statutes that resolved Indian

land claims in the state, provide for land to be set aside as a
permanent land base for the Indian tribes in Maine, in order for the
tribes to be able to continue their unique cultures, including the
ability to exercise sustenance fishing practices. Accordingly, EPA
interprets the state's ``fishing'' designated use, as applied to waters
in Indian lands, to mean ``sustenance fishing'' and approved it as
such; and EPA approved a specific sustenance fishing right reserved in
one of the settlement acts as a designated use for certain tribal
reservation waters. Against this backdrop, EPA approved or disapproved
all of Maine's WQS as applied to waters in Indian lands after
evaluating whether they satisfied CWA requirements as informed by the
settlement acts.\6\ EPA's disapprovals of WQS for waters in Indian
lands in Maine were based on two distinct rationales, depending on the
WQS.
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    \6\ Because EPA had never previously acted on any Maine WQS for
waters in Indian lands, they remained ``new or revised'' WQS as to
those waters, even though EPA had approved many of them for other
state waters. They were therefore subject to EPA review and approval
or disapproval pursuant to CWA section 303(c).
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    First, EPA disapproved Maine's HHC for toxic pollutants based on
EPA's conclusion that they do not adequately protect the health of
tribal sustenance fishers in waters in Indian lands, because they are
not based on the higher fish consumption rates that reflect the tribes'
sustenance fishing practices, and, in the case of one HHC, because the
cancer risk level was not adequately protective of the sustenance
fishing use. These disapprovals, discussed in EPA's February and March
decisions, are specifically related to unique aspects of the tribes'
use of waters in Indian lands. EPA proposes to promulgate WQS related
to the HHC disapprovals as explained in section IV.A.
    Second, EPA, in its March and June decisions, disapproved a number
of WQS as applied to waters in Indian lands because those standards,
although approved for other waters in Maine many years ago, no longer
satisfy CWA requirements (i.e., they do not protect designated uses
and/or are not based on sound scientific rationale). EPA proposes to
promulgate six WQS related to those disapprovals, which include: (1)
Narrative and numeric bacteria criteria for the protection of primary
contact recreation and shellfishing; (2) ammonia criteria for
protection of aquatic life in fresh waters; (3) a statutory exception
for naturally occurring toxic substances from the requirement to
regulate toxic substances at the levels recommended by EPA, as it
applies to HHC, and a natural conditions clause, as it applies to HHC;
(4) the mixing zone policy; (5) the pH criterion for fresh waters; and
(6) tidal temperature criteria. Because EPA had previously approved
these provisions for other waters in Maine, the disapprovals and
corresponding proposed WQS apply to only waters in Indian lands.
2. Disapprovals That Apply to All Waters in Maine, Including Waters in
Indian Lands
    In its March and June 2015 decisions, EPA disapproved a number of
new and revised WQS as applied to all waters throughout Maine,
including waters in Indian lands. These are WQS that EPA had not
previously acted upon for any waters. EPA proposes two WQS for all
waters in Maine related to the disapprovals of (1) a statute allowing
the waiver or modification of protection and improvement laws, as it
pertains to WQS; and (2) the numeric criteria for dissolved oxygen in
Class A waters. EPA proposes one WQS for waters in Maine outside of
Indian lands related to the disapproval of the phenol criterion for
water plus organisms.\7\
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    \7\ EPA proposes a separate phenol criterion for water plus
organisms for the waters in Indian lands.
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C. Scope of Waters

    To address the disapprovals discussed in section II.B.1, EPA
proposes HHC for toxic pollutants as well as six other WQS that apply
only to waters in Indian lands. For the purpose of this rulemaking,
``waters in Indian lands'' are those waters in the tribes' reservations
and trust lands as provided for in the settlement acts.
    In addition, as described below in section III, EPA proposes the
same HHC for toxic pollutants pursuant to a determination of necessity
under CWA 303(c)(4)(B) for the following waters: (1) Waters in Indian
lands in the event that a court determines that EPA's disapprovals of
HHC for such waters were unauthorized and that Maine's existing HHC are
in effect; and (2) waters where there is a sustenance fishing
designated use outside of waters in Indian lands.\8\
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    \8\ EPA has included in the docket for this rulemaking a
Technical Support Document, entitled ``Scope of Waters,'' which
provides further information regarding, for purposes of this
proposed rulemaking, the waters that are included in the term
``waters in Indian lands'' and the waters where the designated use
of sustenance fishing applies.
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D. Applicability of EPA Promulgated Water Quality Standards When Final

    Once finalized, EPA's water quality standards would apply to the
relevant waters for CWA purposes. Although EPA proposes WQS to address
the standards that it disapproved or for which it has made a
determination, Maine continues to have the option to adopt and submit
to EPA new or revised WQS that remedy the issues identified in the
disapprovals and determination, consistent with CWA section 303(c) and
EPA's implementing regulations at 40 CFR part 131. EPA encourages Maine
to expeditiously adopt protective WQS that address the changes EPA
identified in its disapprovals and determination, discussed in section
III, as being necessary to meet CWA requirements. Consistent with CWA
section 303(c)(4), if Maine adopts and submits new or revised WQS and
EPA approves them before finalizing this proposed rule, EPA would not
proceed with the final rulemaking for those waters and/or pollutants
for which EPA approves Maine's new or revised standards.
    If EPA finalizes this proposed rule, and Maine subsequently adopts
and submits new or revised WQS that EPA finds meet CWA requirements,
EPA proposes that once EPA approves Maine's WQS, they would become
effective for CWA purposes, and EPA's corresponding promulgated WQS
would no longer apply. EPA would still undertake a rulemaking to
withdraw the federal WQS for those pollutants, but any delay in that
process would not delay Maine's approved WQS from becoming the sole
applicable WQS for CWA purposes. EPA solicits comment on this approach.

III. CWA 303(c)(4)(B) Determination of Necessity for HHC That Protect
Sustenance Fishing

    Per EPA's regulations at 40 CFR 131.11(a), water quality criteria
must be sufficient to protect the designated uses. As discussed in
section II.A.2. and in EPA's February 2015 disapproval, the settlement
acts reflect Congress's intent that the tribes in Maine must be able to
engage in sustenance fishing to preserve their culture and lifeways. In
waters where the settlement acts provide for the tribes to engage in
sustenance fishing, EPA interprets Maine's designated use of
``fishing'' to include sustenance fishing, and EPA has further approved
section 6207(4) and (9) of MIA as the establishment of a sustenance
fishing designated use for fresh waters in the Southern Tribes'
reservations.
    For the reasons discussed in EPA's February and March 2015
disapproval decisions and summarized below in section IV.A.1.b., most
of Maine's HHC for toxic pollutants are not adequate to protect the
sustenance fishing designated use because they are based on a fish
consumption rate that does not

reflect the tribes' unsuppressed sustenance fishing level of
consumption. Accordingly, for the waters in Maine where there is a
sustenance fishing designated use and Maine's existing HHC are in
effect, EPA hereby determines under CWA section 303(c)(4)(B) that new
or revised WQS for the protection of human health are necessary to meet
the requirements of the CWA for such waters. EPA therefore proposes HHC
for such waters in this rule in accordance with this section
303(c)(4)(B) determination. The specific HHC to which this
determination and corresponding proposal apply are set forth in Table
3. This determination also applies to Maine's HHC for arsenic
(including, specifically, Maine's cancer risk level of 10-4 for
arsenic), thallium, and dioxin. As discussed in section IV.A.1.c., EPA
is reserving its proposal for criteria for these three HHC until a
later date, pending the outcome of additional scientific assessments.
    This determination applies to two groups of waters in Maine:
    1. Any waters in Indian lands in Maine for which a court in the
future determines that EPA's 2015 disapprovals of HHC for such waters
were unauthorized and that Maine's existing HHC are in effect. Maine
has challenged EPA's disapprovals in federal district court, asserting
that EPA did not have the authority to disapprove the HHC in waters in
Indian lands. While EPA's position is that the disapprovals were
authorized and Maine's existing HHC are not in effect, this
determination ensures that EPA has the authority to promulgate the
proposed HHC, and that the tribes' sustenance fishing use would be
protected, even if Maine's challenge to EPA's disapproval authority
were to prevail.
    2. Any water in Maine where sustenance fishing is a designated use
but such water is determined not to be a ``water in Indian lands.'' \9\
EPA notes that there may be one or more waters where the sustenance
fishing designated use based on MIA section 6207(4) and (9) extends
beyond ``waters in Indian lands.'' See ``Scope of Waters'' Technical
Support Document in the docket for this rulemaking. This determination
and corresponding rulemaking apply to any water to which the sustenance
fishing designated use based on MIA section 6207(4) and (9) applies
that is beyond the scope of ``waters in Indian lands.''
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    \9\ In its February 2015 Decision, EPA concluded that section
6207(4) and (9) of MIA constituted a new or revised water quality
standard and approved the provision as a designated use of
sustenance fishing applicable to all inland waters of the Southern
Tribes' reservations in which populations of fish are or may be
found. Accordingly, EPA's approval of MIA section 6207(4) and (9) as
a designated use of sustenance fishing applies to all waters where
the Southern Tribes have a right to sustenance fish, irrespective of
whether such waters are determined to be outside of the scope of
their reservation for purposes other than sustenance fishing.
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    EPA's determination is not itself a final action, nor part of a
final action, at this time. After consideration of comments on the
proposed rule, EPA will take final agency action on this rulemaking. It
is at that time that any challenge to the determination and/or water
quality standards applicable to Maine based on such determination may
occur.

IV. Proposed Water Quality Standards

A. Proposed WQS for Waters in Indian Lands in Maine and for Waters
Outside of Indian Lands in Maine Where the Sustenance Fishing
Designated Use Established by 30 M.R.S. 6207(4) and (9) Applies

1. Human Health Criteria for Toxic Pollutants
    a. General Recommended Approach for Deriving HHC. HHC for toxic
pollutants are designed to minimize the risk of adverse cancer and non-
cancer effects occurring from lifetime exposure to pollutants through
the ingestion of drinking water and consumption of fish/shellfish
obtained from inland and nearshore waters. EPA's practice is to
establish 304(a) HHC for the combined activities of drinking water and
consuming fish/shellfish obtained from inland and nearshore waters, and
separate HHC for consuming only fish/shellfish originating from inland
and nearshore waters. The latter criteria apply in cases where the
designated uses of a waterbody include supporting fish/shellfish for
human consumption but not drinking water supply sources (e.g., in non-
potable estuarine waters). The criteria are based on two types of
biological endpoints: (1) Carcinogenicity and (2) systemic toxicity
(i.e., all adverse effects other than cancer). EPA takes an integrated
approach and considers both cancer and non-cancer effects when deriving
HHC. Where sufficient data are available, EPA derives criteria using
both carcinogenic and non-carcinogenic toxicity endpoints and
recommends the lower value. HHC for carcinogenic effects are typically
calculated using the following input parameters: cancer slope factor,
excess lifetime cancer risk level, body weight, drinking water intake
rate, fish consumption rate(s), and bioaccumulation factor(s). HHC for
non-carcinogenic and nonlinear carcinogenic effects are typically
calculated using reference dose, relative source contribution (RSC),
body weight, drinking water intake rate, fish consumption rate(s) and
bioaccumulation factor(s). Each of these inputs is discussed in more
detail below, in EPA's 2000 Human Health Methodology (the ``2000
Methodology''),\10\ and in the 2015 criteria update.\11\
---------------------------------------------------------------------------

    \10\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA- 822-B-00-
004. http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf.
    \11\ Final Updated Ambient Water Quality Criteria for the
Protection of Human Health, 80 FR 36986 (June 29, 2015). See also:
USEPA. 2015. Final 2015 Updated National Recommended Human Health
Criteria. U.S. Environmental Protection Agency, Office of Water,
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.
---------------------------------------------------------------------------

    i. Cancer Risk Level. For cancer-causing pollutants where the
carcinogenic effects have a linear relationship to exposure, EPA's
304(a) HHC generally assume that carcinogenicity is a ``non-threshold
phenomenon,'' which means that there are no ``safe'' or ``no-effect''
levels of exposure because even extremely low levels of exposure to
most known and suspect carcinogenic compounds are assumed to cause a
finite increase in the risk of developing cancer over the course of a
lifetime. As a matter of policy, EPA calculates its 304(a) HHC at
concentrations corresponding to a 10-6 cancer risk level
(CRL), meaning that if exposure were to occur as set forth in the
304(a) methodology at the prescribed concentration over the course of
one's lifetime, then the risk of developing cancer from the exposure as
described would be one in a million on top of the background risk of
developing cancer from all other exposures. EPA recommends cancer risk
levels of 10-6 (one in a million) or 10-5 (one in
one hundred thousand) for the general population and notes that states
and authorized tribes can also choose a more protective risk level,
such as 10-7 (one in ten million), when deriving HHC.
    ii. Cancer Slope Factor and Reference Dose. For noncarcinogenic
toxicological effects, EPA uses a chronic-duration oral reference dose
(RfD) to derive HHC. An RfD is an estimate (with uncertainty spanning
perhaps an order of magnitude) of a daily oral exposure of the human
population to a substance that is likely to be without an appreciable
risk of deleterious effects during a lifetime. An RfD is typically
derived from a laboratory animal dosing study in which a no-observed-
adverse-

effect level (NOAEL), lowest-observed-adverse-effect level (LOAEL), or
benchmark dose can be obtained. Uncertainty factors are applied to
reflect the limitations of the data.\12\ For carcinogenic toxicological
effects, EPA uses an oral cancer slope factor (CSF) to derive HHC. The
oral CSF is an upper bound, approximating a 95% confidence limit, on
the increased cancer risk from a lifetime oral exposure to a stressor.
---------------------------------------------------------------------------

    \12\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA- 822-B-00-
004.
---------------------------------------------------------------------------

    iii. Exposure Assumptions. In EPA's 2015 criteria update, EPA used
a default drinking water intake rate of 2.4 liters per day (L/day) and
a default rate of 22.0 g/day for total consumption of fish and
shellfish from inland and nearshore waters. Additionally, pollutant-
specific bioaccumulation factors (BAFs) or bioconcentration factors
(BCFs) were used to relate aqueous pollutant concentrations to
predicted pollutant concentrations in the edible portions of ingested
species.
    EPA's national default drinking water intake rate of 2.4 L/day
represents the per capita estimate of combined direct and indirect
community water ingestion at the 90th percentile for adults ages 21 and
older.\13\ EPA's national default FCR of 22.0 g/day represents the 90th
percentile consumption rate of fish and shellfish from inland and
nearshore waters for the U.S. adult population 21 years of age and
older, based on National Health and Nutrient Examination Survey
(NHANES) data from 2003 to 2010.\14\ EPA calculates HHC using a default
body weight of 80.0 kilograms (kg), the average weight of a U.S. adult
age 21 and older, based on NHANES data from 1999 to 2006.\15\
---------------------------------------------------------------------------

    \13\ USEPA. 2011. EPA Exposure Factors Handbook. United States
Environmental Protection Agency. Washington, DC EPA 600/R-090/052F.
http://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
    \14\ USEPA. 2014. Estimated Fish Consumption Rates for the U.S.
Population and Selected Subpopulations (NHANES 2003-2010). United
States Environmental Protection Agency, Washington, DC, USA. EPA
820-R-14-002.
    \15\ USEPA. 2011. EPA Exposure Factors Handbook. United States
Environmental Protection Agency. Washington, DC EPA 600/R-090/052F.
http://cfpub.epa.gov/ncea/risk/recordisplay.cfm?deid=236252.
---------------------------------------------------------------------------

    Although EPA uses these default values to calculate national 304(a)
HHC, EPA's 2000 Methodology notes a preference for the use of local
data to calculate HHC (e.g., locally derived FCRs, drinking water
intake rates and body weights, and waterbody-specific bioaccumulation
rates) over national default values, where data are sufficient to do
so.\16\ EPA also generally recommends, where sufficient data are
available, selecting a FCR that reflects consumption that is not
suppressed by concerns about the safety of available fish \17\ or fish
availability. Deriving HHC using an unsuppressed FCR furthers the
restoration goals of the CWA, and ensures protection of human health as
pollutant levels decrease, fish habitats are restored, and fish
availability increases. While EPA encourages doing so in general, where
sustenance fishing is a designated use of the waters (due to, for
example, tribal treaty or other federal law that provides for a tribe
to fish for its sustenance), in EPA's scientific and policy judgment,
selecting a FCR that reasonably represents current unsuppressed fish
consumption based on the best currently available information is
necessary and appropriate to ensure that such sustenance fishing use is
protected. Such FCR must consider suppression and where adequate data
are available to clearly demonstrate what that value is for the
relevant population, the FCR must reflect that value. If sufficient
data regarding unsuppressed fish consumption levels are not readily
available, consultation with tribes is important to ensure that all
data and information relevant to this issue are considered.
---------------------------------------------------------------------------

    \16\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA-822-B-00-
004. http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf.
    \17\ USEPA. January 2013. Human Health Ambient Water Quality
Criteria and Fish Consumption Rates: Frequently Asked Questions.
http://water.epa.gov/scitech/swguidance/standards/criteria/health/methodology/upload/hhfaqs.pdf.
---------------------------------------------------------------------------

    iv. Relative Source Contribution. EPA's 2000 Methodology describes
different approaches for addressing water and non-water exposure
pathways to derive human health criteria depending on the toxicological
endpoint of concern, the toxicological effect (noncarcinogenic or
carcinogenic), and whether toxicity is considered a linear or threshold
effect. Water sources of exposure include both consuming drinking water
and eating fish or shellfish from inland and nearshore waters that have
been exposed to pollutants in the water body. For pollutants that
exhibit a threshold of exposure before deleterious effects occur, as is
the case for noncarcinogens and nonlinear carcinogens, EPA applies a
relative source contribution (RSC) to account for other potential human
exposures to the pollutant.\18\ Other sources of exposure might
include, but are not limited to, exposure to a particular pollutant
from ocean fish or shellfish consumption (which is not included in the
FCR), non-fish food consumption (e.g., consumption of fruits,
vegetables, grains, meats, or poultry), dermal exposure, and inhalation
exposure.
---------------------------------------------------------------------------

    \18\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA- 822-B-00-
004.
---------------------------------------------------------------------------

    For substances for which the toxicity endpoint is carcinogenicity
based on a linear low-dose extrapolation, only the exposures from
drinking water and fish ingestion are reflected in HHC; that is, non-
water sources are not explicitly included and no RSC is applied.\19\ In
these situations, HHC are derived with respect to the incremental
lifetime cancer risk posed by the presence of a substance in water,
rather than an individual's total risk from all sources of exposure.
EPA derived a RSC (ranging from 0.2 to 0.8) for each chemical included
in the 2015 criteria update, by using the Exposure Decision Tree
approach described in the 2000 Methodology.\20\
---------------------------------------------------------------------------

    \19\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA- 822-B-00-
004.
    \20\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA- 822-B-00-
004. http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf.
---------------------------------------------------------------------------

    b. What did EPA disapprove? On February 2, 2015 and March 12, 2015,
EPA disapproved Maine's HHC for toxic pollutants for waters in Indian
lands because EPA found that they did not meet CWA requirements, i.e.,
they were not adequate to protect the designated use of sustenance
fishing in those waters. EPA reached this conclusion by applying the
CWA's requirements that water quality criteria protect designated uses
and be based on a sound scientific rationale, in consideration of the
purpose of the settlement acts discussed above to preserve the tribes'
culture and sustenance practices. EPA determined that in order to
protect the function of the waters in Indian lands to preserve the
tribes' unique culture and to provide for the safe exercise of their
sustenance practices, EPA must interpret Maine's designated use of
``fishing'' to include sustenance fishing.\21\
---------------------------------------------------------------------------

    \21\ In addition, for certain waters in the Southern Tribes'
reservations, EPA also approved a sustenance fishing designated use
specified in MIA.

---------------------------------------------------------------------------

    EPA's analysis of the settlement acts also led EPA to consider the
tribes to be the general target population in their waters.
Accordingly, EPA applied the 2000 Methodology's recommendations on
exposure and cancer risk for the general target population in its
evaluation of whether Maine's HHC protect the sustenance fishing use in
waters in Indian lands. In other words, EPA considered whether the FCR
reflected, as accurately as possible, the tribes' sustenance level FCR,
and whether the CRL was protective of the sustenance fishers as a
general population rather than as a highly exposed subpopulation. As
explained in the February 2, 2015 disapproval decision, EPA concluded
that the FCRs on which Maine's HHC are based \22\ do not result in
criteria that ensure protection of the sustenance designated use for
waters in Indian lands. This is because Maine's FCRs do not reflect the
best available information regarding the tribes' sustenance level of
consumption unsuppressed by pollutant concerns, which EPA determined in
its scientific and policy judgment was necessary and appropriate in
developing criteria to protect the sustenance fishing designated use of
waters in Indian lands as required by the CWA. EPA also concluded, as
explained in the March 16, 2015 decision, that Maine's 10-4
CRL for arsenic does not adequately protect the general target
population of tribal sustenance fishers in waters in Indian lands. (EPA
approved a separate provision in Maine's regulations that requires that
HHC be based on a CRL of 10-6, finding that it is consistent
with EPA's 2000 Methodology and adequately protects tribal sustenance
fishers as a general target population.)
---------------------------------------------------------------------------

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

    c. Criteria for Which EPA is Reserving Action. Although EPA
disapproved Maine's criteria for arsenic, dioxin, and thallium for
waters in Indian lands, there is some uncertainty regarding aspects of
the science upon which EPA's 304(a) HHC are based such that EPA is
deferring proposal of these criteria at this time. EPA did not update
the 304(a) HHC for these three pollutants in 2015. For thallium, EPA's
IRIS database does not currently contain a quantitative RfD
assessment.\23\ For dioxin, IRIS does not currently contain a
quantitative carcinogenicity assessment.\24\
---------------------------------------------------------------------------

    \23\ http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showQuickView&substance_nmbr=1012.
    \24\ http://cfpub.epa.gov/ncea/iris/index.cfm?fuseaction=iris.showQuickView&substance_nmbr=1024.
---------------------------------------------------------------------------

    While EPA disapproved Maine's arsenic criteria for waters in Indian
lands because the cancer risk level and fish consumption rate together
did not provide a sufficient level of protection of the sustenance
fishing use, EPA recognizes that there is substantial uncertainty
surrounding the toxicological assessment of arsenic with respect to
human health effects. EPA's current plan for addressing these issues is
described in the Assessment Development Plan for the Integrated Risk
Information System (IRIS) Toxicological Review of Inorganic Arsenic
(EPA/630/R-14/101 November 2015). During a similar period of
uncertainty surrounding the toxicological assessment of arsenic in
2000, EPA similarly did not promulgate arsenic HHC for the State of
California.\25\
---------------------------------------------------------------------------

    \25\ Federal Register Vol. 65, No. 97, Thursday, May 18, 2000,
Rules and Regulations.
---------------------------------------------------------------------------

    Without specific numeric criteria in place for arsenic, thallium,
and dioxin in waters in Indian lands, Maine is in a position to rely on
the latest science and policy as it becomes available to interpret the
existing narrative water quality criteria for waters in Indian lands.
For example, permitting authorities in Maine should rely on existing
narrative water quality criteria to establish effluent limitations as
necessary for arsenic, thallium, and dioxin. Federal regulations at 40
CFR 122.44(d)(1)(vi) describe options available to the state for this
purpose. Unless Maine submits and EPA approves these criteria, EPA
plans to propose criteria for thallium, dioxin, and arsenic for waters
in Indian lands and any waters that are covered by the determination
set forth in section III once it has updated the 304(a) HHC.
    d. What is EPA Proposing? EPA proposes HHC for 96 \26\ of the toxic
pollutants applicable to waters in Indian lands that EPA disapproved.
Table 3 provides the criteria proposed for each pollutant as well as
the HHC inputs used to derive each one, as discussed below. These
proposed criteria also apply to any waters that are covered by the
determination set forth in section III.
---------------------------------------------------------------------------

    \26\ After further consideration, by letter of January 19, 2016,
EPA withdrew its February 2, 2015 disapprovals of Maine's HHC for
six pollutants (copper, asbestos, barium, iron, manganese and
nitrates) and instead approved them. EPA concluded that those
criteria were not calculated using a fish consumption rate, and
therefore the basis for EPA's disapprovals of the HHC in the
February 2, 2015 decision letter did not apply. EPA approved them as
being consistent with EPA's recommended 304(a) criteria. In
addition, EPA has withdrawn its February 2, 2015 disapprovals of
Maine's HHC for the following HHC and instead approved them: (1) For
the consumption of water plus organisms for 1,2-dichloropropane,
1,4-dichlorobenzene, dichlorobromomethane, chlorodibromomethane,
chrysene, methylene chloride, chlorophenoxy herbicide (2, 4, 5-TP),
chlorophenoxy herbicide (2,4-D), and N-nitrosopyrrolidine; (2) for
the consumption of organisms alone for acrolein and gamma-BHC
(Lindane); and (3) for both the consumption of water plus organisms
and for the consumption of organisms alone for 1,2-dichloroethane,
acrylonitrile, benzidine, bis(chloromethyl) ether, chloroform,
methyl bromide, and tetrachloroethylene. EPA calculated the HHC for
these pollutants using the best science reflected in the 2015
criteria updates (which were finalized after the disapprovals),
along with a FCR of 286 to protect the sustenance fishing use, and
concluded that the resulting HHC were either the same or less
stringent than Maine's HHC that EPA had disapproved. Accordingly,
EPA withdrew the disapprovals and approved these HHC based on their
being adequate to protect the sustenance fishing use.
---------------------------------------------------------------------------

    i. Maine-Specific HHC Inputs--1. Fish Consumption Rate. In EPA's
February 2, 2015 decision and in this proposal, EPA treats the tribes
as the target general population for waters in Indian lands. EPA
proposes this approach because EPA has determined that sustenance
fishing is the applicable designated use for waters in Indian lands
based on EPA's interpretation of Maine's designated use of ``fishing,''
and, for fresh waters in the Southern Tribes' reservations, also based
on EPA's approval of section 6207(4) and (9) of MIA as a sustenance
fishing designated use. Therefore, the criteria must protect that use.
As discussed at length in EPA's February 2015 decision on Maine's WQS,
these Indian lands and their associated waters have been specifically
set aside for the Maine tribes to exercise their sustenance practices.
These waters are at the core of the resource base provided for under
the settlement acts to support these tribes as sustenance cultures.\27\
Having found that sustenance fishing is a designated use in the waters
in Indian lands, it is reasonable for EPA to target tribal sustenance
fishers as the general population for the purpose of establishing
criteria to protect that use. The same analysis applies to waters
outside of Indian lands where the sustenance fishing designated use
applies.
---------------------------------------------------------------------------

    \27\ EPA recognizes that the general public has the right to
access some tribal waters and to fish there subject to conditions
that do not discriminate between tribal members and non-members. See
MIA Sec.  6207(1).
---------------------------------------------------------------------------

    EPA derived the HHC to protect the sustenance fishing use based on
a total fish consumption rate (FCR) of 286 g/day. EPA selected this
consumption rate based on information contained in an historical/
anthropological study, entitled the Wabanaki Cultural Lifeways

Exposure Scenario \28\ (``Wabanaki Study''), which was completed in
2009. EPA also consulted with the tribes in Maine about the Wabanaki
Study and their sustenance fishing uses of the waters in Indian lands.
There has been no contemporary local survey of current fish
consumption, adjusted to account for suppression, that documents fish
consumption rates for sustenance fishing in the waters in Indian lands
in Maine. In the absence of such information, EPA concluded that the
Wabanaki Study contains the best currently available information for
the purpose of deriving an unsuppressed FCR for HHC adequate to protect
sustenance fishing for such waters.
---------------------------------------------------------------------------

    \28\ Harper, B., Ranco, D., et al. 2009. Wabanaki Traditional
Cultural Lifeways Exposure Scenario. http://www.epa.gov/sites/production/files/2015-08/documents/ditca.pdf.
---------------------------------------------------------------------------

    The peer-reviewed Wabanaki Study was produced under a Direct
Implementation Tribal Cooperative Agreement (DITCA) awarded by EPA to
the Aroostook Band of Micmac Indians on behalf of all of the Maine
tribes. The purpose of the Study was to use available anthropological
and ecological data to develop a description of Maine tribes'
traditional cultural uses of natural resources, and to present the
information in a format that could be used by EPA to evaluate whether
or not tribal uses are protected when EPA reviews or develops WQS in
Indian lands in Maine. It is relevant to contemporary water quality
because another purpose of the Study ``is to describe the lifestyle
that was universal when resources were in better condition and that
some tribal members practice today (and many more that are waiting to
resume once restoration goals and protective standards are in place).''
It provides a numerical representation of the environmental contact,
diet, and exposure pathways of the traditional tribal lifestyle,
including the use of water resources for food, medicine, cultural and
traditional practices, and recreation. The report used anthropological
and ecological data to identify major activities that contribute to
environmental exposure and then to develop exposure factors related to
traditional diet, drinking water, soil and sediment ingestion,
inhalation rate and dermal exposure. Credible ethno-historical,
ecological, nutritional, archaeological, and biomedical literature was
reviewed through the lens of natural resource use and activities
necessary to survive in the Maine environment and support tribal
traditions. Along with single, best professional judgment estimates for
direct exposures (inhalation, soil ingestion, water ingestion) as a
reasonable representation (central tendency) of the traditional
cultural lifeways, the Wabanaki Study provides an estimated range of
diets that reflect three major habitat types.
    In developing the dietary component of the exposure scenario, the
Wabanaki Study authors assembled information about general foraging,
seasonal patterns, dietary breadth, abundance, and food storage. From
these they evaluated the relative proportion of major food groups,
including fish, as well as nutritional information, total calories and
quantities of foods. This resulted in an estimate of a nutritionally
complete diet for the area east of the Kennebec River, which is the
area most heavily used by tribal members today and where farming is
marginal due to climate. With regard to the consumption of fish, the
Wabanaki Study identifies three traditional lifestyle models, each with
its own diet:
    1. Permanent inland residence on a river with anadromous fish runs
(``inland anadromous''),
    2. Permanent inland residence with resident fish only (``inland
non-anadromous''), and
    3. Permanent coastal residence (``coastal'').
    The study provides estimates of average adult consumption of
aquatic resources, game, fowl, and plant-based foods for each lifestyle
model based on a 2,000 kcal/day diet. Aquatic resources were divided
into two categories: ``resident fish and other aquatic resources'' and
``anadromous and marine fish and shellfish.'' Table 2 summarizes the
consumption of aquatic resources for each lifestyle model.

                        Table 2--Consumption of Aquatic Resources by Lifestyle Model \29\
----------------------------------------------------------------------------------------------------------------
                                                                   Resident fish
                                                                      & other      Anadromous &
                         Lifestyle model                              aquatic      marine fish,        Total
                                                                   resources (g/  shellfish  (g/
                                                                       day)          day) \30\
----------------------------------------------------------------------------------------------------------------
Inland Anadromous...............................................             114             400             514
Inland Non-anadromous...........................................             286               0             286
Coastal.........................................................              57             457             514
----------------------------------------------------------------------------------------------------------------

    The Wabanaki Study provides a range of consumption rates
specifically for Maine Indians using natural resources for sustenance
living and reduces the uncertainties associated with a lack of
knowledge about tribal exposure in Maine Indian waters.
---------------------------------------------------------------------------

    \29\ Id., pp. 61-66.
    \30\ Includes marine mammals for coastal lifestyle model only.
---------------------------------------------------------------------------

    In addition to evaluating the Wabanaki Study, EPA consulted with
the four Maine tribes to gather additional information about current
practices, present day circumstances related to the species composition
of available fish, and any other information that the tribes thought
was relevant to EPA's decision making. EPA also considered the
Penobscot Nation's use of a FCR of 286 g/day in developing HHC in its
2014 tribal WQS. In its September 23, 2014 responses to comments on the
final WQS, the Nation explained that it chose the inland non-anadromous
total FCR of 286 g/day because, although the Penobscot lands are in
areas that would have historically supported an inland anadromous diet
(with a total FCR of 514 g/day), the contemporary populations of
anadromous species in Penobscot waters are currently too low to be
harvested in significant quantities. The Nation's representative
reiterated this rationale in the September 9, 2015 tribal consultation
with EPA. The representative of the Aroostook Band of Micmacs also
stated during the consultation that the Wabanki Study's inland non-
anadromous lifestyle diet reflects the current Micmac diet, although
the tribe has a goal of the return and consumption of anadromous fish.
    EPA proposes to use a FCR of 286 g/day to represent present day
sustenance-level fish consumption, unsuppressed

by pollution concerns, in the waters covered by this action. This value
reflects the Wabanaki Study's 286 g/day FCR for the inland non-
anadromous lifestyle, which relied on resident fish species only. For
tribes that followed the inland anadromous lifestyle, 286 g/day
represents all of the resident species fish consumption rate (114 g/
day) as well as approximately 43% of the 400 g/day consumption rate for
anadromous and other non-resident species (172 g/day). For tribes that
followed the coastal lifestyle, 286 g/day represents all of the
resident species fish consumption rate (57 g/day) as well as
approximately 50% of the 457 g/day consumption rate for anadromous and
other non-resident species (229 g/day). It is reasonable to assume that
the inland anadromous and coastal lifestyle tribes would have shifted a
substantial percentage of the sustenance fishing diet from the formerly
widely available but now less available anadromous species (such as
salmon) or protected marine mammals to resident fish species, including
introduced freshwater species, corresponding to the FCR for the inland
non-anadromous lifestyle. That assumption is consistent with the
Penobscot Nation's approach to deriving a current, unsuppressed FCR to
protect sustenance fishing.
    Since the Wabanaki Study presented estimates of the total amount of
fish and aquatic organisms consumed and not the amount consumed of each
trophic level, for the purpose of developing HHC for the Maine tribes,
EPA assumes that Maine tribes consume the same relative proportion of
fish and aquatic organisms from the different trophic levels 2 through
4 as the general U.S. population, as identified in the 2015 criteria
update (i.e., 36%, 40%, and 24% of the total amount consumed for
trophic levels 2, 3, and 4, respectively). Accordingly, EPA proposes to
use trophic-specific fish consumption rates of 103 g/day (trophic level
2), 114 g/day (trophic level 3), and 68.6 g/day (trophic level 4) for
the HHC for those compounds which the 2015 criteria update included
trophic level specific BAFs.
    2. Pollutant Bioaccumulation and Bioconcentration Factors. In order
to prevent harmful exposures to waterborne chemicals through the
consumption of contaminated fish and shellfish, HHC must address the
process of chemical bioaccumulation in aquatic organisms. For the 2015
criteria update, EPA estimated chemical-specific BAFs for three
different trophic levels of fish (levels 2 through 4), using a
framework for deriving national BAFs described in EPA's 2000
Methodology.\31\ EPA proposes to use those BAFs to calculate the
proposed HHC.
---------------------------------------------------------------------------

    \31\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA-822-B-00-
004. http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf.
---------------------------------------------------------------------------

    Where EPA did not update BAFs for certain pollutants in the 2015
criteria update, and for cyanide, EPA proposes HHC using the BCFs
(which are not trophic-level specific) that the Agency used the last
time it updated its 304(a) HHC for those pollutants as the best
available scientific information.
    3. Cancer Risk Level. Maine's water quality regulations, at Maine's
Department of Environmental Protection (DEP) Rule Chapter 584 section
4, specify that water quality criteria for carcinogens must be based on
a CRL of 10-6 (except for a 10-4 CRL for arsenic,
which EPA disapproved). On February 2, 2015, EPA approved the
10-6 CRL for waters in Indian lands, since it is consistent
with the range of CRLs that EPA considers to be appropriate for the
general population. This is also the risk level that EPA uses when
publishing its 304(a) HHC and when promulgating federal criteria.\32\
As explained above, EPA considers the tribes to be the general target
population for waters in Indian lands. For these reasons, EPA proposes
to use a 10-6 CRL in its criteria for carcinogens for waters
covered by this action.
---------------------------------------------------------------------------

    \32\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. US Environmental
Protection Agency. pp. 2-6.
---------------------------------------------------------------------------

    4. Relative Source Contribution. EPA recommends using a 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 2015 criteria update, section
II.B.d).\33\ In 2015, after evaluating information on chemical uses,
properties, occurrences, releases to the environment and regulatory
restrictions, EPA developed chemical-specific RSCs for non-carcinogens
and nonlinear carcinogens ranging from 0.2 (20%) to 0.8 (80%) following
the Exposure Decision Tree approach described in EPA's 2000 Methodology
and used them in the 2015 criteria updates.34 35 For these
pollutants, EPA proposes to use the same RSCs to derive the HHC. For
pollutants where EPA did not update the 304(a) HHC in 2015, EPA
proposes to use a default RSC of 0.2 to derive HHC following the
Exposure Decision Tree approach described in EPA's 2000 Methodology; a
RSC of 0.2 is used as a default RSC when EPA has not developed a
pollutant-specific RSC based on exposure/occurrence data. In the case
of antimony (for which EPA did not update the 304(a) HHC in 2015), EPA
proposes to use an RSC of 0.4 consistent with the RSC value used the
last time the Agency updated this criterion.\36\
---------------------------------------------------------------------------

    \33\ Final Updated Ambient Water Quality Criteria for the
Protection of Human Health, (80 FR 36986, June 29, 2015). See also:
USEPA. 2015. Final 2015 Updated National Recommended Human Health
Criteria. U.S. Environmental Protection Agency, Office of Water,
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.
    \34\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. EPA-822-B-00-
004. http://www.epa.gov/waterscience/criteria/humanhealth/method/complete.pdf.
    \35\ Final Updated Ambient Water Quality Criteria for the
Protection of Human Health, (80 FR 36986, June 29, 2015). See also:
USEPA. 2015. Final 2015 Updated National Recommended Human Health
Criteria. U.S. Environmental Protection Agency, Office of Water,
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.
    \36\ USEPA. 2002. National Recommended Water Quality Criteria:
2002 Human Health Criteria Calculation Matrix. EPA-822-R-02-012.
U.S. Environmental Protection Agency, Office of Water, Washington,
DC. http://water.epa.gov/scitech/swguidance/standards/upload/2002_12_30_criteria_wqctable_hh_calc_matrix.pdf.
---------------------------------------------------------------------------

    5. Body Weight. EPA proposes to calculate HHC using a body weight
of 80.0 kg, which represents the average weight of a U.S. adult. In
2015, EPA updated its recommended adult body weight to 80.0 kg based on
national survey data (see 2015 criteria update, section II.B.c).\37\
EPA is not aware of any local body weight data applicable to Maine
tribes that would suggest a different value.
---------------------------------------------------------------------------

    \37\ Final Updated Ambient Water Quality Criteria for the
Protection of Human Health, (80 FR 36986, June 29, 2015). See also:
USEPA. 2015. Final 2015 Updated National Recommended Human Health
Criteria. U.S. Environmental Protection Agency, Office of Water,
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.
---------------------------------------------------------------------------

    6. Drinking Water Intake. EPA proposes to calculate HHC using a
drinking water intake rate of 2.4 L/day. In 2015, EPA updated its
national default drinking water intake rate in the 304(a) HHC to 2.4 L/
day (see 2015 criteria update, section II.B.c).\38\ This rate is based
on the national survey data and represents the per capita estimate of
combined direct and indirect community water ingestion at the 90th

percentile for adults ages 21 and older. EPA is not aware of any local
data applicable to Maine tribes that suggest a different rate.
---------------------------------------------------------------------------

    \38\ Final Updated Ambient Water Quality Criteria for the
Protection of Human Health, (80 FR 36986, June 29, 2015). See also:
USEPA. 2015. Final 2015 Updated National Recommended Human Health
Criteria. U.S. Environmental Protection Agency, Office of Water,
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.
---------------------------------------------------------------------------

    7. Pollutant-Specific Reference Doses and Cancer Slope Factors. As
part of EPA's 2015 criteria update, EPA conducted a systematic search
of eight peer-reviewed, publicly available sources to obtain the most
current toxicity values for each pollutant (RfDs for non-carcinogenic
effects and CSFs for carcinogenic effects).\39\ EPA proposes to
calculate HHC using the same toxicity values that EPA used in its 2015
criteria update, to ensure that the resulting criteria are based on a
sound scientific rationale. Where EPA did not update criteria for
certain pollutants in 2015, EPA proposes to use the toxicity values
that the Agency used the last time it updated its 304(a) HHC for those
pollutants.
---------------------------------------------------------------------------

    \39\ Final Updated Ambient Water Quality Criteria for the
Protection of Human Health, (80 FR 36986, June 29, 2015). See also:
USEPA. 2015. Final 2015 Updated National Recommended Human Health
Criteria. U.S. Environmental Protection Agency, Office of Water,
Washington, DC. http://water.epa.gov/scitech/swguidance/standards/criteria/current/hhfinal.cfm.
---------------------------------------------------------------------------

    ii. Proposed Criteria. EPA proposes HHC for 96 different pollutants
(93 organism-only criteria, 88 water-plus-organism criteria) to protect
the sustenance fishing designated use in the waters covered by this
action (see Table 3). In accordance with Maine DEP Rule Chapter 584,
paragraph 1, the proposed ``Water & Organisms'' criteria would apply to
all waters except for marine waters, where the proposed ``Organisms
Only'' criteria would apply.
    All of the proposed HHC criteria are proposed in units of
micrograms per liter ([micro]g/L) except for methylmercury,\40\ which
is expressed as mg/kg in the edible portion of fish.
---------------------------------------------------------------------------

    \40\ EPA proposes a fish tissue-based methylmercury criterion
rather than a fish tissue-based mercury criterion (which EPA
disapproved in Indian waters) because methylmercury is the form of
mercury found in fish and to which humans are exposed through eating
fish. Human exposure to other forms of mercury is typically not
associated with the aquatic environment.
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B. Proposed WQS for Waters in Indian Lands

1. Bacteria Criteria
    a. What did EPA disapprove? On March 16, 2015, EPA disapproved
Maine's 1985 bacteria criteria for the protection of the designated use
of ``recreation in and on the water'' (recreational criteria), as
revised in 2005 and 2008, for Class B, C, GPA, SB and SC waters in
Indian lands. This designated use and these criteria are set forth in
38 M.R.S. 465(3.B) and (4.B), 465-A(1.B), and 465-B(2.B) and (3.B),
respectively. EPA's disapproval of Maine's recreational criteria for
waters in Indian lands was based on a review of whether the criteria,
as a whole, protect the applicable designated use. Because Maine's
recreational criteria apply only to fecal sources of human and domestic
origin and do not include an explicit duration and frequency of
exceedance, EPA concluded that Maine's recreational criteria are not
fully protective of the recreation designated use in waters in Indian
lands.
    Maine's recreational bacteria criteria for Class B, C, GPA, SB and
SC waters include only fecal sources of ``human and domestic origin''
and fail to include naturally occurring sources. In the case of
bacteria, pathogens that pose human health risks can come from
naturally occurring sources such as wildlife as well as from human and
domestic sources. Therefore, a potential human health risk from
recreational exposure to bacteria exists in wildlife-impacted waters
(2012 Recreational Water Quality Criteria, section 3.5.1-2). In
addition, EPA published new recommended 304(a) recreational criteria in
2012, which include two numeric thresholds (geometric mean and
statistical threshold value, or STV), an averaging duration, and a
maximum frequency of exceedance. Maine's recreational criteria do not
include an explicit duration and frequency of exceedance or an STV, all
of which EPA finds are necessary to protect designated uses.
    On June 5, 2015, EPA disapproved the narrative bacteria criteria
for Class AA, A and SA waters in Indian lands for the protection of
recreation uses and, in the case of SA waters, also for shellfishing
uses. These criteria are set forth in 38 M.R.S. 465(1.B and 2.B) and
465-B(1.B), respectively. These criteria specify that the bacteria
content of these waters shall be ``as naturally occurs.'' Although the
intent of these criteria is to reflect conditions unaffected by human
activity, in the case of bacteria, pathogens that pose human health
risks from recreational exposure or shellfish consumption can result
from naturally occurring sources such as wildlife. Because these
narrative bacteria criteria do not address bacteria from wildlife
sources, EPA disapproved them as not adequately protecting recreation
in and on the waters in Class AA, A and SA waters, and propagation and
harvesting of shellfish in Class SA waters.
    b. What is EPA proposing? i. Recreational Bacteria Criteria. EPA is
proposing recreational criteria for Class AA, A, B, C, GPA, SA, SB and
SC waters in Indian lands based on EPA's 2012 Recreational Water
Quality Criteria (RWQC) recommendations (EPA Office of Water 820-F-12-
058). The criterion magnitude is expressed in terms of Escherichia coli
colony forming units per 100 milliliters (cfu/100 ml) for fresh waters
and Enterococcus spp. colony forming units per 100 milliliters (cfu/100
ml) for marine waters, consistent with Maine's current criteria
expression and EPA's 2012 recommendations.
    The 2012 RWQC recommendations offer two sets of numeric
concentration thresholds, either of which would protect the designated
use of primary contact recreation and, therefore, would protect the
public from exposure to harmful levels of pathogens. The proposed
criteria's magnitude, duration and frequency are based on EPA's illness
rate of 32 NGI per 1,000 primary contact recreators, where NGI
represents the gastrointestinal illnesses as measured by EPA's National
Epidemiological and Environmental Assessment of Recreational Water
(NEEAR) study.\41\ EPA chose the 32 NGI per 1,000 primary contact
recreators illness rate because the resulting geometric mean components
of the criteria most closely match the geometric means in Maine's
criteria. EPA specifically invites comment on whether instead to base
the criteria on EPA's alternative illness threshold of 36 NGI per 1,000
primary contact recreators set forth in the 2012 RWQC.
---------------------------------------------------------------------------

    \41\ USEPA. 2010. Report on 2009 National Epidemiologic and
Environmental Assessment of Recreational Water Epidemiology Studies.
United States Environmental Protection Agency, Washington, DC EPA-
600-R-10-168.
---------------------------------------------------------------------------

    In addition, for Class AA, A and SA waters in Indian lands, EPA is
proposing to include Maine's narrative criteria expression that
bacteria content of these waters be no greater than as ``naturally
occurs.'' This maintains Maine's intention that the waters be free of
human caused pathogens, while the specific numeric criteria EPA
proposes also provide protection for designated recreational uses in
the event there are wildlife sources.
    Finally, in accordance with the recommendation to Maine in EPA's
March 16, 2015 letter, EPA is proposing that the criteria apply all
year long in all waters in Indian lands. This differs from Maine's
disapproved criteria, which do not apply from October 1 through May 14
in Classes B, C, GPA, SB, and SC waters. EPA does not have a record to
support a conclusion that no recreation in and on these waters occurs
between October 1 and May 14. On the contrary, EPA has found
information indicating that white water rafting, paddling, and kayaking
occur after October 1,\42\ and during consultation EPA learned from the
Penobscot Nation that as long as there is no ice on the Penobscot
River, recreators are on the river paddling and fishing. At the same
time, EPA recognizes that there may be periods during which
recreational activities do not occur in and on these waters. Therefore,
EPA specifically invites comment on whether EPA should promulgate an
alternative seasonal term during which the criteria would not apply
that would adequately protect recreational uses, such as, for example,
December through February.
---------------------------------------------------------------------------

    \42\ http://www.penobscotadventures.com/online-booking/
(whitewater rafting on Penobscot River Oct. 2-4, 2015); http://www.paddleandchowder.org/ (paddling/kayaking in October)
---------------------------------------------------------------------------

    ii. Shellfishing Bacteria Criteria. EPA proposes shellfishing
criteria for SA waters in Indian lands based on recommendations from
the National Shellfish Sanitation Program (NSSP). The criteria
magnitude is expressed in terms of total coliform Most Probable Number
(MPN)/100 ml.
    EPA last provided recommendations for bacteria to protect shellfish
harvesting uses in its 1986 304(a) recommendations,\43\ which provided
fecal coliform criteria for shellfish harvesting. As described in that
document, the basis for the criteria was a study from the NSSP which
related an accepted international standard of total coliforms to fecal
coliforms. NSSP has published several versions of its guidance which
provides recommendations for criteria expressed as fecal coliform or
total coliform. EPA proposes to promulgate criteria as total coliform
to be consistent with Maine's narrative criteria to protect shellfish
harvesting in Class SB and SC waters, which say that the numbers of
total coliform bacteria or other specified indicator organisms in
samples representative of the waters in Class SB and SC shellfish
harvesting areas may not exceed criteria recommended under

the National Shellfish Sanitation Program, United States Food and Drug
Administration.
---------------------------------------------------------------------------

    \43\ USEPA. 1986. Quality Criteria for Water 1986, United States
Environmental Protection Agency, Washington, DC. EPA 440/5-86-001.
---------------------------------------------------------------------------

    EPA proposes that in Class SA shellfish harvesting areas, the
number of total coliform bacteria in samples representative of the
waters in shellfish harvesting areas shall not exceed a geometric mean
for each sampling station of 70 MPN (most probable number) per 100 ml,
with not more than 10% of samples exceeding 230 MPN per 100 ml for the
taking of shellfish. The proposal is consistent with the current NSSP
recommendations for total coliform included in the ``Standard for the
Approved Growing Area Classification in the Remote Status.'' \44\
Therefore, the proposed criteria are protective of shellfish harvesting
uses in Class SA waters.
---------------------------------------------------------------------------

    \44\ USDA. 2013. National Shellfish Sanitation Program (NSSP)
Guide for the Control of Molluscan Shellfish: 2013 Revision. United
States Food and Drug Administration, Washington, DC page 210. posted
at http://www.fda.gov/downloads/Food/GuidanceRegulation/FederalStateFoodPrograms/UCM415522.pdf
---------------------------------------------------------------------------

    2. Ammonia Criteria for Fresh Waters. a. What did EPA disapprove?
On March 16, 2015, EPA disapproved the ammonia criteria for protection
of aquatic life for fresh waters in Indian lands. The criteria are set
forth in DEP Rule Chapter 584, Appendix A. EPA's disapproval was based
on a review of whether the criteria protect the applicable designated
uses and are based on sound scientific rationale. EPA revised its CWA
Section 304(a) recommended ammonia criteria for fresh waters in August
2013 and incorporated the latest science for freshwater mussels and
snails, which are sensitive to ammonia toxicity.\45\ This science was
not included in EPA's 1999 ammonia criteria recommendations, on which
Maine's criteria are based. Therefore, EPA concluded that Maine's
criteria are not protective of the designated use because they are not
protective of freshwater mussels and snails and, accordingly,
disapproved the criteria.
---------------------------------------------------------------------------

    \45\ USEPA. 2013. Aquatic Life Ambient Water Quality Criteria
for Ammonia--Freshwater 2013. United States Environmental Protection
Agency, Washington, DC EPA 822-R-13-001
---------------------------------------------------------------------------

    b. What is EPA proposing? Ammonia is a constituent of nitrogen
pollution. Unlike other forms of nitrogen, which can cause
eutrophication of a waterbody at elevated concentrations, the primary
concern with ammonia is its direct toxic effects on aquatic life, which
are exacerbated by elevated pH and temperature.
    EPA proposes ammonia criteria for fresh waters in Indian lands
based on the 2013 updated 304(a) recommended ammonia criterion. The
acute and chronic criteria concentrations in EPA's 2013 update are
expressed as functions of temperature and pH, so the applicable
criteria vary by waterbody, depending on the temperature and pH of
those waters. The criteria document describes the relationship between
ammonia and these water quality factors and provides tables showing how
the criteria values change with varying pH and temperatures. EPA's
proposed criteria include tables that contain Criterion Maximum
Concentrations (CMC) and Criterion Continuous Concentrations (CCC) that
correspond to a range of temperatures and pH values, and require that
the applicable CMCs and CCCs shall not be exceeded. In addition,
consistent with EPA's recommended criteria, the proposed criteria
include a requirement that the highest four-day average within the same
30-day period used to determine compliance with the CCC shall not
exceed 2.5 times the CCC, more than once every three years. For the
reasons explained in EPA's 304(a) criteria recommendations for ammonia,
EPA's proposed criteria are protective of the designated aquatic life
use and based on sound science.
    3. pH Criterion for Fresh Waters. a. What did EPA disapprove?
Maine's freshwater pH criterion in 38 M.R.S. 464(4.A(5)) prohibits
discharges from causing the pH of receiving waters to fall outside the
range of 6.0 to 8.5. On June 5, 2015, EPA disapproved the pH criterion
for fresh waters in Indian lands because the lower end of the range
(6.0) is not protective of aquatic life uses.
    b. What is EPA proposing? EPA proposes a pH criterion with a range
of 6.5 to 8.5. The proposal is based on the lower value of EPA's
recommended pH criterion (6.5 to 9.0) \46\ to protect freshwater fish
and bottom-dwelling invertebrates that provide food for freshwater
fish. In waters that are more acidic than 6.5, the likelihood of harm
to aquatic species increases when periodic acidic inputs (either
natural or anthropogenic in origin) liberate CO2 from
bicarbonate in the water leading to direct lethality as a result of
lack of oxygen, or causing a further drop in pH into potentially lethal
ranges. Fish suffer adverse physiological effects increasing in
severity as the degree of acidification increases, until lethal levels
are reached. Therefore, EPA proposes that the pH of fresh waters in
Indian lands in Maine shall not fall below 6.5. EPA includes in the
proposal Maine's existing value of 8.5 for the upper end of the pH
range because it is within the range of 6.5 to 9.0 that EPA recommends
in order to protect aquatic species from extreme pH conditions.
---------------------------------------------------------------------------

    \46\ USEPA. 1986. Quality Criteria for Water 1986, United States
Environmental Protection Agency, Washington, DC. EPA 440/5-86-001,
pH section.
---------------------------------------------------------------------------

    4. Temperature Criteria for Tidal Waters. a. What did EPA
disapprove? On June 5, 2015, EPA disapproved Maine's tidal temperature
criteria in DEP Rule Chapter 582(5), for tidal waters in Indian lands
(specifically, the intertidal zone at Pleasant Point), because they are
not protective of aquatic life uses. The criteria allow a 4 [deg]F
monthly average rise in ambient temperatures from individual
dischargers from September 2 to May 30, and a 1.5 [deg]F monthly
average rise from June 1 to September 1, as measured outside of any
mixing zone; they also allow a maximum temperature of 85 [deg]F as
measured outside of any mixing zone. EPA disapproved the 4 [deg]F
temperature rise provision and the maximum temperature criterion of 85
[deg]F as not protective of indigenous species that have been
associated with tidal waters in the vicinity of Pleasant Point, where
typical temperatures are in the 37 [deg]-52 [deg]F range based on the
nearest NOAA monitoring station at Eastport, Maine.
    b. What is EPA proposing? In order to assure protection of the
indigenous marine community characteristic of the intertidal zone at
Pleasant Point, EPA proposes criteria consistent with EPA's 304(a)
recommended criteria for tidal waters.\47\ EPA proposes a maximum
increase in the weekly average baseline ambient temperature resulting
from artificial sources of 1 [deg]C (1.8 [deg]F) during all seasons of
the year, provided that the summer maximum of 18 [deg]C (64.4 [deg]F)
is not exceeded. The proposal specifies that the weekly average
baseline thermal condition must be calculated using the daily maxima
averaged over a 7-day period, and must be measured at a reference site
where there is no unnatural thermal addition from any source, that is
in reasonable proximity to the thermal discharge (within five miles),
and that has similar hydrography to that of the receiving waters at the
discharge. Further, EPA proposes that daily temperature cycles
characteristic of the waterbody shall not be altered in either
amplitude or frequency.\48\
---------------------------------------------------------------------------

    \47\ USEPA. 1986. Quality Criteria for Water 1986, U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
EPA 440/5-86-001. Temperature section.
    \48\ Id.
---------------------------------------------------------------------------

    The natural temperature fluctuation provision in the proposed rule
is necessary to induce and protect the reproductive cycles of aquatic

organisms and to regulate other life factors. Since aquatic organisms
are essentially poikilotherms (cold blooded), the temperature of the
water regulates their metabolism and ability to survive and reproduce
effectively. In addition, natural temperature fluctuations are
essential to maintain the existing community structure and the
geographic distribution of species.\49\
---------------------------------------------------------------------------

    \49\ Id,
---------------------------------------------------------------------------

    In intertidal waters, elevated temperatures affect periphyton,
benthic invertebrates, and fish, in addition to causing shifts in the
dominant primary producers. Community balance can be influenced
strongly by temperature-dependent factors, including: rates of
reproduction, recruitment, and growth of each component population--all
of which were considered in deriving all components of the temperature
criteria in this rule. A few degrees elevation in average monthly
temperature outside of the conditions described in this rule can
appreciably alter a community through changes in interspecies
relationships.\50\
---------------------------------------------------------------------------

    \50\ Id.
---------------------------------------------------------------------------

    The intertidal zone at Pleasant Point is home to indigenous species
such as pollock, haddock, juvenile flounder, juvenile and adult shad,
cod, alewife, blueback herring as well as various species of clams,
crabs, urchins and lobsters found in the vicinity of these waters
(personal communication Dr. Theo Willis, University of Southern Maine
and Dr. Robert Stephenson, St. Andrews Biological Station, St. Andrews
NB).
    Pollock are indigenous fish that inhabit the subtidal and
intertidal zones of the Gulf of Maine.\51\ Within the subtidal and
intertidal zones, pollock move to different locations depending on the
temperature conditions.\52\ Pollock are abundant in the intertidal zone
in the summer and fall months, and as such, are an appropriate
sensitive, indigenous species by which to set a summer maximum
temperature criterion.\53\ EPA proposes a summer weekly maximum of 18
[deg]C (64.4 [deg]F), which is consistent with EPA's Gold Book
methodology and is the value identified in the scientific literature
that is protective of juvenile pollock (Pollachius virens).\54\
---------------------------------------------------------------------------

    \51\ Id.
    \52\ Id.
    \53\ Id.
    \54\ Cargnelli et al. National Oceanic and Atmospheric
Administration. NOAA Technical Memorandum NMFS-NE-131. Essential
Fish Habitat Source Document: Pollock, Pollachius virens, Life
History and Habitat Characteristics. September 1999. Pages 1-38.
---------------------------------------------------------------------------

    The summer maximum of 18 [deg]C (64.4 [deg]F) is a weekly average
value and is calculated using the daily maxima averaged over a 7-day
period, similar to the calculation of the baseline ambient temperature.
EPA uses a weekly average maximum temperature because, as explained in
regional guidance, ``it describes the maximum temperatures . . . but is
not overly influenced by the maximum temperature of a single day. Thus
it reflects an average of maximum temperatures that fish are exposed to
over a week-long period.'' \55\
---------------------------------------------------------------------------

    \55\ Id.
---------------------------------------------------------------------------

    Collectively, the criteria that EPA proposes will protect aquatic
life from the deleterious effects of increased mean water temperature
and from alterations in the amplitude and frequency of mean-high and
mean-low water temperatures. EPA's recommended 304(a) criteria, on
which this proposal is based, are designed to protect aquatic species
from short- and long-term temperature anomalies, resulting in the
maintenance of reproductive, recruitment, and growth cycles.
    5. Natural Conditions Provisions. a. What did EPA disapprove? On
June 5, 2015, EPA disapproved, for waters in Indian lands, two natural
conditions provisions as they apply to water quality criteria to
protect human health. Specifically, EPA disapproved 38 M.R.S. 420(2.A),
which states ``Except as naturally occurs or as provided in paragraphs
B and C, the board shall regulate toxic substances in the surface
waters of the State at the levels set forth in federal water quality
criteria as established by the United States Environmental Protection
Agency pursuant to the Federal Water Pollution Control Act, Public Law
92-500, Section 304(a), as amended''; and 38 M.R.S. 464(4.C), which
states: ``Where natural conditions, including, but not limited to,
marshes, bogs and abnormal concentrations of wildlife cause the
dissolved oxygen or other water quality criteria to fall below the
minimum standards specified in sections 465, 465-A and 465-B, those
waters shall not be considered to be failing to attain their
classification because of those natural conditions.''
    EPA concluded that to the extent that these provisions would allow
an exception from otherwise applicable HHC, they are not consistent
with EPA's interpretation of the relationship between natural
conditions and the protection of designated human health uses, which is
articulated in EPA's November 5, 1997 guidance entitled ``Establishing
Site Specific Aquatic Life Criteria Equal to Natural Background.'' \56\
In contrast with aquatic life uses,\57\ a naturally occurring level of
a pollutant does not necessarily protect designated human health uses.
Naturally occurring levels of a pollutant are assumed to protect
aquatic life species that have naturally developed in the affected
waters. However, human health does not adapt to higher ambient
pollutant levels, even if they are naturally caused. Consequently, the
same assumptions of protectiveness cannot be made with regard to
designated uses that affect human health (e.g., people eating fish or
shellfish from Maine waters, and recreating in Maine waters). For this
reason, EPA's 1997 guidance also states that where the natural
background concentration exceeds the state-adopted human health
criterion, at a minimum, states should re-evaluate the human health use
designation.
---------------------------------------------------------------------------

    \56\ Davies, Tudor T., Establishing Site Specific Aquatic Life
Criteria Equal to Natural Background, EPA Memorandum to Water
Management Division Directors, Regions 1-10, State and Tribal Water
Quality Management Program Directors, posted at: http://www.epa.gov/sites/production/files/2014-08/documents/naturalbackground-memo.pdf
    \57\ EPA approved these natural conditions provisions for waters
in Indian lands as they relate to aquatic life, acknowledging that
there may be naturally occurring concentrations of pollutants that
exceed the national criteria published under section 304(a) of the
CWA that are still protective of aquatic life.
---------------------------------------------------------------------------

    EPA disapproved the natural conditions clauses at 38 M.R.S 464(4.C)
and 420(2.A) for waters in Indian lands as they apply to criteria that
protect human health because the application of these provisions fails
to protect designated human health uses as required by the CWA and
federal WQS regulations at 40 CFR 131.11(a).
    b. What is EPA proposing? For each of the disapproved naturally
occurring or natural conditions exceptions, EPA proposes a regulation
that states that such provision ``does not apply to water quality
criteria intended to protect human health.'' Under this approach, Maine
still could implement the natural conditions provisions for other
criteria related to non-human health uses.
    6. Mixing Zone Policy. a. What did EPA disapprove? On June 5, 2015,
EPA disapproved, for waters in Indian lands, Maine's mixing zone policy
set forth in 38 M.R.S. 451. This provision allows the DEP to establish
mixing zones that would allow the ``reasonable'' opportunity for
dilution or mixture of pollutants before the receiving waters would be
evaluated for WQS compliance.
    States are not required to adopt mixing zone policies into their
WQS, but if they do, they are subject to EPA

review and approval. 40 CFR 131.13. A mixing zone is a limited area or
volume of water where initial dilution of a discharge takes place, and
where certain numeric criteria may be exceeded, but the designated uses
of the waterbody as a whole must still be protected. EPA's guidance
includes specific recommendations to ensure that mixing zones do not
impair the designated uses of the waterbody as a whole. Among other
things, a state mixing zone policy must ensure that pollutant
concentrations in the mixing zone are not lethal to organisms passing
through and do not cause significant human health risks; and that
mixing zones do not endanger critical areas such as breeding or
spawning grounds, drinking water intakes and sources, shellfish beds,
or endangered or threatened species habitat. Maine's mixing zone law
does not contain any of these or other protective safeguards to ensure
the protection of designated uses. The only specific limitation on
mixing zones in Maine's mixing zone statute is that they be
``reasonable.'' There are also no state regulations that define the
boundaries of a ``reasonable'' mixing zone. Therefore EPA disapproved
Maine's law for waters in Indian lands as being inadequate to protect
designated uses.
    b. What is EPA proposing? EPA proposes, for waters in Indian lands,
a mixing zone policy that retains Maine's statutory mixing zone
language and expands upon it by: 1. Including specific information that
a request for a mixing zone must contain, and 2. including minimum
requirements that any mixing zone must satisfy in order to qualify for
approval by DEP.
    The proposed information requirements are intended to ensure that
any discharger seeking DEP's approval of a mixing zone provides
sufficient information for DEP to determine whether and to what extent
a mixing zone may be authorized.
    The proposed mixing zone minimum requirements are intended to
ensure that any mixing zone approved by DEP will not interfere with or
impair the designated uses of the waterbody as a whole. They are
consistent with recommendations in EPA's Water Quality Standards
Handbook (2014).\58\ The proposed rule clarifies the extent to which
water quality criteria may be exceeded in a mixing zone: chronic water
quality criteria for those parameters approved by DEP may be exceeded
within the mixing zone; acute water quality criteria may be exceeded
for such parameters, but only within the zone of initial dilution
inside the mixing zone, and the acute criteria must be met as close to
the point of discharge as practicably attainable; and no water quality
criteria may be exceeded outside of the boundary of a mixing zone as a
result of the discharge for which the mixing zone was authorized. The
proposed rule also specifies that a mixing zone must be as small as
necessary, and that pollutant concentrations must be minimized and
reflect the best practicable engineering design of the outfall to
maximize initial mixing.The proposal includes a requirement that mixing
zones be established consistent with the methodologies in Section 4.3
and 4.4 of EPA's ``Technical Support Document for Water Quality-based
Toxics Control'' EPA/505/2-90-001, dated March 1991. This requirement
is consistent with EPA's recommendation that mixing zone policies
describe the general procedures for defining and implementing mixing
zones in terms of location, maximum size, shape, outfall design, and
in-zone water quality, at a minimum.\59\ EPA also proposes a
requirement that the mixing zone demonstration be based on the
assumption that a pollutant does not degrade within the proposed mixing
zone, unless a valid scientific study demonstrates otherwise. This
assumption provides a conservative estimate of potential pollutant
concentrations to be used when calculating allowable mixing zone
discharges.
---------------------------------------------------------------------------

    \58\ USEPA. 2014. Water Quality Standards Handbook, Chapter 5.
EPA-820-B-14-004.
    \59\ Id. at p. 4.
---------------------------------------------------------------------------

    EPA proposes to prohibit the use of a mixing zone for
bioaccumulative pollutants and for bacteria, consistent with EPA's
guidance that recommends that mixing zone policies not allow mixing
zones for discharges of these pollutants in order to protect the
designated uses.\60\ EPA adopted this approach for bioaccumulative
pollutants in 2000 when it amended its 1995 Final Water Quality
Guidance for the Great Lakes System at 40 CFR part 132 to phase out
mixing zones for existing discharges of bioaccumulative pollutants
within the Great Lakes Basin and ban such mixing zones for new
discharges within the Basin. Because fish tissue contamination tends to
be a far-field problem affecting entire or downstream waterbodies
rather than a near-field problem being confined to the area within a
mixing zone, EPA has emphasized that it may be appropriate to restrict
or eliminate mixing zones for bioaccumulative pollutants in certain
situations such as where mixing zones may encroach on areas often used
for fish harvesting, particularly for stationary species such as
shellfish, and where there are uncertainties in the assimilative
capacity of the waterbody.
---------------------------------------------------------------------------

    \60\ Id. at pp. 9-10.
---------------------------------------------------------------------------

    Similarly, because bacteria mixing zones may cause significant
human health risks and endanger critical areas (e.g., recreational
areas), EPA recommends that mixing zone policies not allow mixing zones
for bacteria in waters designated for primary contact recreation. As
explained in EPA's guidance, the presumption in waters designated for
primary contact recreation is that primary contact recreation can
safely occur throughout the waterbody and, therefore, that bacteria
levels will not exceed criteria.\61\ People recreating in or through a
bacteria mixing zone may be exposed to greater risk of illnesses than
would otherwise be allowed by the criteria for protection of the
recreation use. Primary contact recreation is a designated use for all
waters in Maine, including in Indian lands. EPA is therefore proposing
to prohibit mixing zones for bacteria for the waters in Indian lands
because they could result in a significant human health risk.
---------------------------------------------------------------------------

    \61\ Id. at p. 10.
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    EPA is not aware of instances where DEP has previously authorized
mixing zones for bioaccumulative pollutants or bacteria, and therefore
EPA does not expect that these prohibitions will pose hardship to
existing dischargers.
    The proposed rule also establishes a number of restrictions to
protect designated uses, such as requirements that the mixing zone be
unlikely to jeopardize the continued existence of any endangered or
threatened species listed under section 4 of the Endangered Species Act
or result in the destruction or adverse modification of such species'
critical habitat; not extend to drinking water intakes or sources; not
cause significant human health risks; not endanger critical areas such
as breeding and spawning grounds, habitat for state-listed threatened
or endangered species, areas with sensitive biota, shellfish beds,
fisheries, and recreational areas; not result in lethality to mobile,
migrating, and drifting organisms passing through or within the mixing
zone; not overlap with another mixing zone; not attract aquatic life;
and not result in any objectionable color, odor, taste, or turbidity.

C. Proposed WQS for All Waters in Maine

1. Dissolved Oxygen Criteria for Class A Waters
    a. What Did EPA Disapprove? On June 5, 2015, EPA disapproved
Maine's dissolved oxygen (DO) criteria for Class A fresh waters, set
forth in 38 M.R.S. 465(2.B), for all waters in Maine, including waters
in Indian lands. Maine's criteria state that ``The dissolved oxygen
content of Class A waters shall be not less than 7 parts per million or
75% of saturation, whichever is higher.'' Maine's DO criteria for Class
A fresh waters are protective of all life stages of warmwater species
and adult coldwater species, but are not high enough to protect the
early life stages of coldwater species. Therefore, EPA disapproved the
criteria because they do not protect early life stages of coldwater
species and, therefore, do not protect the full aquatic life designated
use.
    b. What Is EPA Proposing? EPA proposes year-round DO criteria for
Class A waters that are identical to Maine's existing criteria (not
less than 7 mg/L or 75% of saturation, whichever is higher).\62\
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    \62\ Dissolved oxygen values expressed as mg/L are equivalent to
the same values expressed as ppm.
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    Maine's existing year-round criteria are higher, and more
protective than, EPA's minimum DO recommendations for non-early life
stages.\63\ EPA therefore proposes the same year-round criteria that
Maine uses for these waters, in deference to Maine's determination of
what is necessary to protect non-early life stages and to be consistent
with Maine's criteria for Class B waters.
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    \63\ EPA's recommended criteria for non-early life stages are
expressed as 30 day mean (6.5 mg/L in cold water, 5.5 mg/L in warm
water), 7 day mean minimum (5.0 mg/L in cold water, 4.0 mg/l in warm
water), and 1 day minimum (4.0 mg/L in cold water, 3.0 mg/L in warm
water). From USEPA. 1986. Quality Criteria for Water 1986, U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
EPA 440/5-86-001. Dissolved Oxygen section.
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    For fish spawning areas in Class A waters, for the period of
October 1 through May 14, EPA proposes a 7-day mean DO concentration of
>= 9.5 mg/L and a 1-day minimum of >= 8 mg/L. These proposed criteria
to protect more sensitive early life stages of coldwater species are
consistent with EPA's 304(a) criteria recommendations and will protect
those stages against potentially damaging and lethal effects. EPA's
proposed criteria for fish spawning areas for early life stages are
also consistent with Maine's criteria for early life stages in Class B
waters.
2. Waiver or Modification of WQS
    a. What Did EPA Disapprove? On June 5, 2015, for all waters in
Maine, EPA disapproved 38 M.R.S. 363-D as it relates to WQS. Under this
law, the DEP Commissioner (or designee) may waive or modify any
provision of Maine's Title 38, Chapter 3 (related to the protection and
improvement of waters), which includes WQS, to assist in any oil spill
response activity conducted in accordance with the national or state
contingency plans, or as otherwise directed by the federal on-scene
coordinator or the Commissioner (or designee).
    EPA disapproved this statute as it relates to WQS, because it is
not consistent with the minimum federal requirements that must be
satisfied in order for a state to modify or waive a WQS. Specifically,
waivers or modifications of WQS that would have the effect of removing
a designated use or creating a subcategory of use, including waiving or
modifying criteria necessary to support the use, may occur under the
CWA only in accordance with 40 CFR 131.10(g) (which, among other
things, requires a use attainability analysis). Before taking such
action, states must provide public notice and a public hearing, and
revised WQS are subject to EPA review and approval. Because 38 M.R.S.
363-D does not contain any of these requirements, EPA disapproved it--
for WQS purposes only--as being inconsistent with federal law.
    b. What Is EPA Proposing? EPA proposes a regulation that states
that 38 M.R.S. 363-D does not apply to state or federal WQS applicable
to waters in Maine, including designated uses, criteria to protect
designated uses, and antidegradation requirements. The proposed
regulation would not interfere with the Commissioner's authority to
modify applicable WQS through the removal of a use or establishment of
a subcategory of a use if justified by a use attainability analysis,
consistent with 40 CFR 131.10(g), or to grant a WQS variance,
consistent with 40 CFR 131.14. Before taking such actions, the
Commissioner must provide for public notice and a public hearing; and
revised WQS, including WQS variances, are subject to EPA review and
approval. Maine can still get short-term relief from compliance with
WQS during oil spills through its permitting program. EPA's regulations
at 40 CFR 122.3(d) provide a limited exception from the need to get an
NPDES permit, and indirectly, to comply with WQS, for ``any discharge
in compliance with the instructions of an On-Scene Coordinator pursuant
to 40 CFR part 300 (The National Oil and Hazardous Substances Pollution
Contingency Plan) or 33 CFR 153.10(e) (Pollution by Oil and Hazardous
Substances).'' Maine has a similar permitting provision at 38 M.R.S.
413(2-G.B) that it can rely on in such circumstances.

D. Proposed WQS for Waters in Maine Outside of Indian Lands

1. HHC for Phenol Consumption of Water Plus Organisms
    a. What Did EPA Disapprove? On March 16, 2015, EPA disapproved
Maine's phenol criterion for the protection of human health consumption
of water plus organisms, in DEP Rule Chapter 584, Appendix A, submitted
to EPA on January 14, 2013, for waters throughout Maine. While DEP had
based the criterion on EPA's then-current criterion recommendation, DEP
made an inadvertent mathematical error that resulted in a less
stringent criterion than EPA's recommendation (10,514 [micro]g/L rather
than the correctly computed result of 10,267 [micro]g/L). In the
absence of supporting scientific information to justify a finding that
the less stringent criterion adequately protects the designated use,
EPA disapproved the criterion for all waters in Maine as not being
protective of the designated use and based on sound scientific
rationale.
    b. What Is EPA Proposing? In June 2015, soon after EPA's March 2015
disapproval, EPA updated its section 304(a) recommended criterion for
phenol as part of a broader package of 304(a) criteria and identified a
recommended criterion of 4000 [micro]g/L. When promulgating federal
criteria, EPA bases the criteria on the most up-to-date scientific
information. Consistent with the June 2015 recommendation, EPA
accordingly proposes a phenol criterion for the protection of human
health consumption of water plus organisms of 4000 [micro]g/L for
waters in Maine outside of Indian lands. This proposed phenol criterion
is based on EPA's default inputs for relative source contribution, body
weight, drinking water intake, and pollutant-specific reference doses
and cancer slope factors, discussed in more detail in section IV.A.1.a.
Since this criterion will apply in state waters outside of Indian
lands, EPA used Maine's default fish consumption rate of 32.4 g/day, as
well as a cancer risk level of 10-6 consistent with DEP Rule Chapter
584. The FCR reflects local survey data, and the CRL is consistent with
EPA's recommendation. Therefore, the proposed criterion is protective
of human health in waters in Maine

outside of Indian lands, for the reasons discussed in EPA's 2015
criteria update.

V. Economic Analysis

    These WQS may serve as a basis for development of NPDES permit
limits. Maine has NPDES permitting authority, through which it ensures
that discharges to waters of the state do not cause or contribute to an
exceedance of WQS. EPA evaluated the potential costs to NPDES
dischargers associated with state implementation of EPA's proposed WQS.
This analysis is documented in the ``Economic Analysis for Proposal of
Certain Federal Water Quality Standards Applicable to Maine,'' which
can be found in the record for this rulemaking.
    Any NPDES-permitted facility that discharges pollutants for which
the proposed WQS are more stringent than the WQS on which permit limits
are currently based could potentially incur compliance costs. The types
of affected facilities could include industrial facilities and POTWs
discharging wastewater to surface waters (i.e., point sources). EPA
attributed to the proposed rule only those incremental costs that are
above the costs associated with compliance with water quality based
effluent limits (WQBELs) in current permits. Proposed criteria for pH,
temperature, ammonia, and all but one HHC (for waters in Indian lands),
proposed criteria for phenol (for state waters outside Indian lands),
and proposed criteria for dissolved oxygen (for all state waters) are
not expected to result in incremental costs to permitted dischargers.
The cost analysis identifies potential costs of compliance with one HHC
(bis(2-ethylhexyl)phthalate), bacteria, and the proposed mixing zone
policy for waters in Indian lands.
    EPA did not fully evaluate the potential for costs to nonpoint
sources for this preliminary analysis. Very little data were available
to assess the potential for the rule to result in WQS exceedances
attributable to nonpoint sources. It is difficult to model and evaluate
the potential cost impacts of this proposed rule to nonpoint sources
because they are intermittent, variable, and occur under hydrologic or
climatic conditions associated with precipitation events. Finally,
legacy contamination (e.g., in sediment) may be a source of ongoing
loading. Atmospheric deposition may also contribute loadings of the
pollutants of concern (e.g., mercury). EPA did not estimate sediment
remediation costs, or air pollution controls costs, for this
preliminary analysis.

A. Identifying Affected Entities

    EPA identified 33 dischargers to waters in Indian lands and their
tributaries, two facilities that discharge phenol to other state
waters, and 26 facilities that discharge to Class A waters throughout
the state. EPA identified 16 point source facilities that could incur
additional costs as a result of this proposed rule. Of these
potentially affected facilities, eight are major dischargers and eight
are minor dischargers. Two are industrial dischargers and the remaining
14 are publicly owned treatment works (POTWs). EPA did not include
general permit facilities in its analysis because data for such
facilities are limited. EPA evaluated all of the potentially affected
facilities.

B. Method for Estimating Costs

    For the 16 facilities that may incur costs, EPA evaluated existing
baseline permit conditions and potential to exceed new effluent limits
based on the proposed rule. In instances of exceedances of projected
effluent limitations under the proposed criteria, EPA determined the
likely compliance scenarios and costs. Only compliance actions and
costs that would be needed above the baseline level of controls are
attributable to the proposed rule.
    EPA assumed that dischargers will pursue the least cost means of
compliance with WQBELs. Incremental compliance actions attributable to
the proposed rule may include pollution prevention, end-of-pipe
treatment, and alternative compliance mechanisms (e.g., variances). EPA
annualized capital costs, including study (e.g., variance) and program
(e.g., pollution prevention) costs, over 20 years using a 3% discount
rate to obtain total annual costs per facility.

C. Results

    Based on the results for the 16 facilities, EPA estimated a total
annual cost of approximately $213,000 to $1.0 million. The low end of
the range reflects $28,000 in annual pollution prevention costs for one
facility and $185,300 in incremental annual operating costs for all
POTWs to disinfect year-round and for some POTWs to dechlorinate year
round. The high end of the cost range reflects incremental annual
operating costs of $705,200 for all POTWs to both disinfect and
dechlorinate year-round; the maximum estimated annual cost of $273,000
to comply with the updated mixing zone policy; and $43,096 in estimated
annual costs for one facility to provide end-of-pipe treatment for
bis(2-ethylhexyl)phthalate.
    If the proposed criteria result in an incremental increase in
impaired waters, resulting in the need for TMDL development, there
could also be some costs to nonpoint sources of pollution. EPA had very
limited information with which to assess potential impacts of the
proposed revisions on ambient water quality. Given the scope of the
proposed rule on certain waters and pollutants (notably toxic
pollutants) and existing controls on wide-ranging nonpoint source
pollution sources including in statewide TMDLs, EPA determined that any
incremental costs on nonpoint sources are unlikely to be significant.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)

    This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review. The proposed rule does not establish any requirements
directly applicable to regulated entities or other sources of
pollutants. However, these WQS may serve as a basis for development of
NPDES permit limits. Maine has NPDES permitting authority, through
which it ensures that discharges to waters of the state do not cause or
contribute to an exceedance of WQS. In the spirit of Executive Order
12866, EPA evaluated the potential costs to NPDES dischargers
associated with state implementation of EPA's proposed criteria. This
analysis, Economic Analysis for Proposal of Certain Federal Water
Quality Standards Applicable to Maine, is summarized in section V of
the preamble and is available in the docket.

B. Paperwork Reduction Act

    This action does not impose any direct new information collection
burden under the provisions of the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. Actions to implement these WQS could entail additional
paperwork burden. Burden is defined at 5 CFR 1320.3(b). This action
does not include any information collection, reporting, or record-
keeping requirements.

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Small
entities, such as small

businesses or small governmental jurisdictions, are not directly
regulated by this rule. This proposed rule will thus not impose any
requirements on small entities. We continue to be interested, however,
in the potential impacts of the proposed rule on small entities and
welcome comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

    This action contains no federal mandates under the provisions of
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C.
1531-1538 for state, local, or tribal governments or the private
sector. As these water quality criteria are not self-implementing,
EPA's action imposes no enforceable duty on any state, local or tribal
governments or the private sector. Therefore, this action is not
subject to the requirements of sections 202 or 205 of the UMRA. This
action is also not subject to the requirements of section 203 of UMRA
because it contains no regulatory requirements that could significantly
or uniquely affect small governments.

E. Executive Order 13132

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.

F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)

    This action has tribal implications. However, it would neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. In the state of Maine,
there are four federally recognized Indian tribes represented by five
tribal governments. As a result of the unique jurisdictional provisions
of the Maine Indian Claims Settlement Act, as described above, the
state has jurisdiction for setting water quality standards for all
waters in Indian lands in Maine. This rule would affect federally
recognized Indian tribes in Maine because the water quality standards
being proposed would apply to all waters in Indian lands and some will
also apply to waters outside of Indian lands where the sustenance
fishing designated use established by 30 M.R.S. 6207(4) and (9)
applies, and because many of the proposed criteria for such waters are
protective of the sustenance fishing designated use, which is based in
the Indian claims settlement acts in Maine.
    The EPA consulted with tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this proposed rule to permit them to have meaningful and
timely input into its development. A summary of that consultation is
provided in ``Summary of Tribal Consultations Regarding Water Quality
Standards Applicable to Waters in Indian Lands within the State of
Maine,'' which is available in the docket for this rulemaking.

G. Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk that may disproportionately affect children.
    The public is invited to submit comments or identify peer-reviewed
studies and data that assess effects of early life exposure.

H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)

    This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act of 1995

    This action does not involve technical standards.

J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)

    The EPA believes the human health or environmental risk addressed
by this action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income
or indigenous populations.
    Conversely, this action would increase protection for indigenous
populations in Maine from disproportionately high and adverse human
health effects. EPA developed the criteria included in this proposed
rule specifically to protect Maine's designated uses, using the most
current science, including local and regional information on fish
consumption. Applying these criteria to waters in the state of Maine
will afford a greater level of protection to both human health and the
environment.

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians--lands, Intergovernmental
relations, Reporting and recordkeeping requirements, Water pollution
control.

    Dated: April 11, 2016.
Gina McCarthy,
Administrator.
    For the reasons set forth in the preamble, EPA proposes to amend 40
CFR part 131 as follows:

PART 131--WATER QUALITY STANDARDS

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. Add Sec.  131.43 to read as follows:

Sec.  131.43  Maine.

    (a) Human health criteria for toxics for waters in Indian lands and
for waters outside of Indian lands where the sustenance fishing