[Federal Register Volume 81, Number 243 (Monday, December 19, 2016)]
[Rules and Regulations]
[Pages 92466-92494]
[FR Doc No: 2016-30331]

Vol. 81

Monday,

No. 243

December 19, 2016

Part IX

Environmental Protection Agency

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40 CFR Part 131

Promulgation of Certain Federal Water Quality Standards Applicable to
Maine; Final Rule

Federal Register / Vol. 81 , No. 243 / Monday, December 19, 2016 /
Rules and Regulations

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[EPA-HQ-OW-2015-0804; FRL-9952-99-OW]
RIN 2040-AF59

Promulgation of Certain Federal Water Quality Standards
Applicable to Maine

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is finalizing
federal Clean Water Act (CWA) water quality standards (WQS) for certain
waters under the state of Maine's jurisdiction, including human health
criteria (HHC) to protect the sustenance fishing designated use in
waters in Indian lands and in waters subject to sustenance fishing
rights under the Maine Implementing Act (MIA). EPA is promulgating
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 HHC are not adequate to
protect the designated use of sustenance fishing for certain waters.

DATES: This final rule is effective on January 18, 2017. The
incorporation by reference of certain publications listed in the rule
is approved by the Director of the Federal Register as of January 18,
2017.

ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-HQ-OW-2015-0804. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available electronically through http://www.regulations.gov.

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 final rule is organized as follows:

I. General Information
    A. Does this action apply to me?
    B. How did EPA develop this final rule?
II. Background and Summary
    A. Statutory and Regulatory Background
    B. Description of Final Rule
III. Summary of Major Comments Received and EPA's Response
    A. Overview of Comments
    B. Maine Indian Settlement Acts
    C. Sustenance Fishing Designated Use
    D. Human Health Criteria for Toxics for Waters in Indian Lands
    E. Other Water Quality Standards
IV. Economic Analysis
    A. Identifying Affected Entities
    B. Method for Estimated Costs
    C. Results
V. 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)
    K. Congressional Review Act (CRA)

I. General Information

A. 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.
------------------------------------------------------------------------

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 quality of Maine's waters could be affected by this rule. To
determine whether your facility or activities could be affected by this
action, you should carefully examine this rule. If you have questions
regarding the applicability of this action to a particular entity,
consult Jennifer Brundage, whose contact information can be found in
the FOR FURTHER INFORMATION section above.

B. How did EPA develop this final rule?

    In developing this final rule, EPA carefully considered the public
comments and feedback received from interested parties. EPA provided a
60-day public comment period after publishing the proposed rule in the
Federal Register on April 20, 2016.\1\ In addition, EPA held two
virtual public hearings on June 7 and 9, 2016, to discuss the contents
of the proposed rule and accept verbal public comments.
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    \1\ See Proposal of Certain Federal Water Quality Standards
Applicable to Maine, 81 FR 23239, April 20, 2016.
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    Over 100 organizations and individuals submitted comments on a
range of issues. Some comments addressed issues beyond the scope of the
rulemaking, and thus EPA did not consider them in finalizing this rule.
In section III of this preamble, EPA discusses certain public comments
so that the public is aware of the Agency's position. For a full
response to these

and all other comments, see EPA's Response to Comments (RTC) document
in the official public docket.

II. Background and Summary

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.\2\
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    \2\ USEPA. 2000. Memorandum #WQSP-00-03. U.S. Environmental
Protection Agency, Office of Water, Washington, DC. https://www.epa.gov/sites/production/files/2015-01/documents/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 waterbody 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 within ninety
days 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 that EPA approves as being 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 CWA section
304(a) recommended criteria for human health for 94 pollutants (the
2015 criteria update).\3\ Where EPA has published recommended criteria,
states should adopt 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 CWA section 304(a)
criteria, as necessary to support the states' designated uses.
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    \3\ 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 farther north in the state.
To simplify the discussion, 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. Public Law 96-
420, 94 Stat. 1785. 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. Public Law 96-420, 94 Stat. 1785 section
5(d)(1); 30 M.R.S. 6205-A. 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. Act of
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 ``Indian
settlement acts'' or ``settlement acts.''
3. EPA's Disapprovals of Portions of Maine's Water Quality Standards
    On February 2, March 16, and June 5, 2015, EPA disapproved a number
of Maine's new and revised WQS. These decision letters are available in
the docket for this rulemaking. They were prompted by an ongoing
lawsuit

initiated by Maine against EPA.\4\ As discussed in the preamble to the
proposed rule (see 81 FR 23239, 23241-23242), 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.\5\ EPA concluded that the disapproved WQS did not
adequately protect designated uses related to the protection of human
health and/or aquatic life.\6\ EPA requested the state to 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. EPA is required by the CWA
to promptly propose and then, within 90 days of proposal, to promulgate
federal standards unless, in the meantime, the state adopts and EPA
approves state replacement WQS that address EPA's disapproval. The
state has not adopted WQS revisions to address the disapprovals. Having
published the proposed rule on April 20, 2016, EPA is today finalizing
the rule. With the exception of minor revisions to several human health
criteria as noted in section II.B.1.a and two small changes discussed
in section II.B.2, EPA's final rule is identical to the proposed rule.
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    \4\ The state has filed an amended complaint in that lawsuit,
challenging, among other things, EPA's February 2, 2015 approval of
certain designated uses and disapprovals of Maine's HHC.
    \5\ As discussed in the proposal for this rule, unlike in most
other states, Maine has the authority to promulgate WQS for waters
in Indian lands in Maine, as a result of the settlement acts.
    \6\ 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 CWA section 304(a)
criteria. In addition, by letter of April 11, 2016, EPA withdrew its
February 2, 2015, disapprovals of Maine's HHC for the following HHC
and instead approved them: (1) For the consumption of water plus
organisms for 1,2-dichloropropane, 1,4-dichlorobenzene,
dichlorobromomethane, chlorodibromomethane, chrysene, methylene
chloride, chlorophenoxy herbicide (2, 4, 5-TP), chlorophenoxy
herbicide (2,4-D), and Nnitrosopyrrolidine; (2) for the consumption
of organisms alone for acrolein and gamma-BHC (Lindane); and (3) for
both the consumption of water plus organisms and for the consumption
of organisms alone for 1,2-dichloroethane, acrylonitrile, benzidine,
bis(chloromethyl) ether, chloroform, methyl bromide, and
tetrachloroethylene. EPA calculated the HHC for these pollutants
using the best science reflected in the 2015 criteria updates (which
were finalized after the disapprovals), along with a fish
consumption rate (FCR) of 286 g/day 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.
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4. Scope of Action
a. Scope of Promulgation Related to Disapprovals
    To address the disapprovals discussed in section II.A.3, EPA is
promulgating human health criteria (HHC) for toxic pollutants and six
other WQS that apply only to waters in Indian lands; two WQS for all
waters in Maine including waters in Indian lands; and one WQS for
waters in Maine outside of 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.
b. Scope of Promulgation Related to the Administrator's Determination
    On April 20, 2016, EPA made a CWA section 303(c)(4)(B)
determination that, for any waters in Maine where there is a sustenance
fishing designated use and Maine's existing HHC are in effect, new or
revised HHC for the protection of human health in Maine are necessary
to meet the requirements of the CWA. EPA proposed (see 81 FR 23239,
23242-23243), and is now finalizing, HHC for toxic pollutants, in
accordance with the CWA section 303(c)(4)(B) determination, 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; \7\ and (2)
waters where there is a sustenance fishing designated use outside of
waters in Indian lands.\8\
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    \7\ 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 were to prevail in its
challenge to EPA's disapproval authority.
    \8\ 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.
    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.'' For example, a
federal district court recently held that the Penobscot Nation's
``reservation'' for sustenance fishing purposes, as contained in MIA
section 6207(4), is broader in scope than its ``reservation'' under
MIA section 6203(8). Penobscot Nation v. Mills, 151 F. Supp. 3d 181
(D. Maine Dec. 16, 2015) (formerly, Penobscot v. Schneider), appeal
docketed, No. 16-1435 (1st Cir. April 26, 2016). The court held that
the Penobscot Nation has a right to sustenance fish throughout the
main stem of the Penobscot River (from Indian Island to the
confluence of the East and West Branches of the Penobscot River),
though its reservation under section 6203(8) consists solely of the
islands in that stretch of the river. The determination and
corresponding final HHC apply to any water that is beyond the scope
of ``waters in Indian lands'' and to which the sustenance fishing
designated use based on MIA section 6207(4) and (9) applies. For a
more detailed discussion, see section III.D.5 of this preamble, and
also Topic 5 in EPA's Response to Comments document and the ``Scope
of Waters'' Technical Support Document; both documents are in the
docket for this rulemaking.
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5. Applicability of Water Quality Standards
    These water quality standards apply to the categories of waters for
CWA purposes, as described in II.B below. Although EPA is finalizing
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.
    Some commenters urged EPA to finalize its rule without any further
delay. Conversely, the state noted that EPA should give it additional
time to adopt and submit its own WQS to address EPA's disapprovals. EPA
acknowledges the perspectives of all of these commenters. EPA agrees
that there is a compelling need to finalize the WQS, particularly in
waters in Indian lands in Maine. For many pollutants, there are no
criteria in effect for CWA purposes in waters in Indian lands,
including most human health criteria, and it is important to remedy
this gap in protection without further delay where possible. Further,
the tribes have repeatedly expressed their desire for, and the
importance of, their right to a sustenance fishing way of life,
reserved for them under the settlement acts, to be protected. EPA, as a
federal government agency, is taking action to protect that right,
consistent with the settlement acts and CWA, as described further
below.
    EPA also agrees that the CWA is intended to protect the Nation's
waters through a system of cooperative federalism, with states having
the primary responsibility of establishing protective WQS for waters
under their jurisdiction. However, Maine is challenging EPA's
disapproval of the

HHC for waters in Indian lands in federal court, and it commented
adversely on EPA's proposed HHC, pH, bacteria, and tidal temperature
criteria for waters in Indian lands. Consequently, EPA has no assurance
that Maine will develop WQS that EPA can approve as scientifically
defensible and protective of Maine's designated uses.
    Having considered these comments, EPA, in keeping with its
statutory obligation to promulgate WQS within 90 days after proposing
them and the need for these WQS to meet the requirements of the CWA, is
finalizing the WQS.
    In the April 20, 2016, Federal Register notice, EPA proposed that
if Maine adopted and submitted WQS that meet CWA requirements after EPA
finalized its proposed rule, they would become effective for CWA
purposes upon EPA approval and EPA's corresponding promulgated WQS
would no longer apply. No commenters supported this proposal. Two
commenters objected to it, and one asked that EPA specify that WQS
adopted by the state would have to be at least as stringent as the
federally proposed WQS for EPA to approve and make the state WQS
effective for CWA purposes.
    Upon consideration of comments received on its proposed rule, EPA
decided not to finalize the above proposed approach. Consistent with 40
CFR 131.21(c), EPA's federally promulgated WQS are and will be
applicable for purposes of the CWA until EPA withdraws those federally
promulgated WQS. EPA would undertake a rulemaking to withdraw the
federal WQS if and when Maine adopts and EPA approves corresponding WQS
that meet the requirements of section 303(c) of the CWA and EPA's
implementing regulations at 40 CFR part 131.

B. Description of Final Rule

1. Final 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
a. Human Health Criteria for Toxic Pollutants
    After consideration of all comments received on EPA's proposed
rule, EPA is finalizing the proposed criteria for 96 toxic pollutants
in this rule applicable to waters in Indian lands.\9\ Table 2 provides
the criteria for each pollutant as well as the HHC inputs used to
derive each one. These criteria also apply to any waters that are
covered by the determination referenced in section II.A.4.
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    \9\ Final human health criteria for antimony,
dichlorobromomethane, nickel, nitrosamines, N-nitrosodibutylamine,
N-nitrosodiethylamine, PCBs, selenium, and zinc have been modified
slightly from the criteria as proposed to better reflect the
appropriate number of significant figures (i.e., precision) in the
value.

                                                                 Table 2--Final HHC and Key Parameters Used in Their Derivation
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                                                                                Bioaccumu-       Bioaccumu-       Bioaccumu-
                                                   Cancer slope  Relative source    Reference    lation factor    lation factor    lation factor      Bioconcen-      Water &
           Chemical name                CAS No.     factor, CSF    contribution     dose, RfD     for  trophic     for  trophic     for  trophic    tration factor   organisms   Organisms  only
                                                     (per mg/        RSC (-)          (mg/       level 2 (L/kg    level 3 (L/kg    level 4 (L/kg    (L/kg tissue)    ([micro]g/    ([micro]g/L)
                                                   kg[middot]d)                   kg[middot]d)      tissue)          tissue)          tissue)            \e\             L)
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1 1,1,2,2-Tetrachloroethane........       79-34-5           0.2  ...............  ............              5.7              7.4              8.4  ...............         0.09              0.2
2 1,1,2-Trichloroethane............       79-00-5         0.057  ...............  ............              6.0              7.8              8.9  ...............         0.31             0.66
3 1,1-Dichloroethylene.............       75-35-4  ............             0.20          0.05              2.0              2.4              2.6  ...............          300             1000
4 1,2,4,5-Tetrachlorobenzene.......       95-94-3  ............             0.20        0.0003           17,000            2,900            1,500  ...............        0.002            0.002
5 1,2,4-Trichlorobenzene...........      120-82-1         0.029  ...............  ............            2,800            1,500              430  ...............       0.0056           0.0056
6 1,2-Dichlorobenzene..............       95-50-1  ............             0.20           0.3               52               71               82  ...............          200              300
7 1,2-Dichloropropane..............       78-87-5         0.036  ...............  ............              2.9              3.5              3.9  ...............  ...........              2.3
8 1,2-Diphenylhydrazine............      122-66-7           0.8  ...............  ............               18               24               27  ...............         0.01             0.02
9 1,2-Trans-Dichloroethylene.......      156-60-5  ............             0.20          0.02              3.3              4.2              4.7  ...............           90              300
10 1,3-Dichlorobenzene.............      541-73-1  ............             0.20         0.002               31              120              190  ...............            1                1
11 1,3-Dichloropropene.............      542-75-6         0.122  ...............  ............              2.3              2.7              3.0  ...............         0.21             0.87
12 1,4-Dichlorobenzene.............      106-46-7  ............             0.20          0.07               28               66               84  ...............  ...........               70
13 2,4,5-Trichlorophenol...........       95-95-4  ............             0.20           0.1              100              140              160  ...............           40               40
14 2,4,6-Trichlorophenol...........       88-06-2         0.011  ...............  ............               94              130              150  ...............         0.20             0.21
15 2,4-Dichlorophenol..............      120-83-2  ............             0.20         0.003               31               42               48  ...............            4                4
16 2,4-Dimethylphenol..............      105-67-9  ............             0.20          0.02              4.8              6.2              7.0  ...............           80              200
17 2,4-Dinitrophenol...............       51-28-5  ............             0.20         0.002          \a\ 4.4          \a\ 4.4          \a\ 4.4  ...............            9               30
18 2,4-Dinitrotoluene..............      121-14-2         0.667  ...............  ............              2.8              3.5              3.9  ...............        0.036             0.13
19 2-Chloronaphthalene.............       91-58-7  ............             0.80          0.08              150              210              240  ...............           90               90
20 2-Chlorophenol..................       95-57-8  ............             0.20         0.005              3.8              4.8              5.4  ...............           20               60
21 2-Methyl-4,6-Dinitrophenol......      534-52-1  ............             0.20        0.0003              6.8              8.9               10  ...............            1                2
22 3,3'-Dichlorobenzidine..........       91-94-1          0.45  ...............  ............               44               60               69  ...............       0.0096            0.011
23 4,4'-DDD........................       72-54-8          0.24  ...............  ............           33,000          140,000          240,000  ...............      9.3E-06          9.3E-06
24 4,4'-DDE........................       72-55-9         0.167  ...............  ............          270,000        1,100,000        3,100,000  ...............      1.3E-06          1.3E-06
25 4,4'-DDT........................       50-29-3          0.34  ...............  ............           35,000          240,000        1,100,000  ...............      2.2E-06          2.2E-06
26 Acenaphthene....................       83-32-9  ............             0.20          0.06          \a\ 510          \a\ 510          \a\ 510  ...............            6                7
27 Acrolein........................      107-02-8  ............             0.20        0.0005              1.0              1.0              1.0  ...............            3  ...............
28 Aldrin..........................      309-00-2            17  ...............  ............           18,000          310,000          650,000  ...............      5.8E-08          5.8E-08
29 alpha-BHC.......................      319-84-6           6.3  ...............  ............            1,700            1,400            1,500  ...............      2.9E-05          2.9E-05
30 alpha-Endosulfan................      959-98-8  ............             0.20         0.006              130              180              200  ...............            2                2
31 Anthracene......................      120-12-7  ............             0.20           0.3          \a\ 610          \a\ 610          \a\ 610  ...............           30               30
32 Antimony........................     7440-36-0  ............             0.40        0.0004  ...............  ...............  ...............                1            5               40
33 Benzene.........................       71-43-2     \b\ 0.055  ...............  ............              3.6              4.5              5.0  ...............         0.40              1.2
34 Benzo (a) Anthracene............       56-55-3          0.73  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-05          9.8E-05
35 Benzo (a) Pyrene................       50-32-8           7.3  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-06          9.8E-06
36 Benzo (b) Fluoranthene..........      205-99-2          0.73  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-05          9.8E-05
37 Benzo (k) Fluoranthene..........      207-08-9         0.073  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      0.00098          0.00098
38 beta-BHC........................      319-85-7           1.8  ...............  ............              110              160              180  ...............       0.0010           0.0011
39 beta-Endosulfan.................    33213-65-9  ............             0.20         0.006               80              110              130  ...............            3                3
40 Bis(2-Chloro-1-Methylethyl)           108-60-1  ............             0.20          0.04              6.7              8.8               10  ...............          100              300
 Ether.............................
41 Bis(2-Chloroethyl) Ether........      111-44-4           1.1  ...............  ............              1.4              1.6              1.7  ...............        0.026             0.16
42 Bis(2-Ethylhexyl) Phthalate.....      117-81-7         0.014  ...............  ............          \a\ 710          \a\ 710          \a\ 710  ...............        0.028            0.028
43 Bromoform.......................       75-25-2        0.0045  ...............  ............              5.8              7.5              8.5  ...............          4.0              8.7
44 Butylbenzyl Phthalate...........       85-68-7        0.0019  ...............  ............       \a\ 19,000       \a\ 19,000       \a\ 19,000  ...............       0.0077           0.0077
45 Carbon Tetrachloride............       56-23-5          0.07  ...............  ............              9.3               12               14  ...............          0.2              0.3
46 Chlordane.......................       57-74-9          0.35  ...............  ............            5,300           44,000           60,000  ...............      2.4E-05          2.4E-05
47 Chlorobenzene...................      108-90-7  ............             0.20          0.02               14               19               22  ...............           40               60
48 Chlorodibromomethane............      124-48-1         0.040  ...............  ............              3.7              4.8              5.3  ...............  ...........              1.5
49 Chrysene........................      218-01-9        0.0073  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............  ...........           0.0098
50 Cyanide.........................       57-12-5  ............             0.20        0.0006  ...............  ...............  ...............                1            4               30
51 Dibenzo (a,h) Anthracene........       53-70-3           7.3  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-06          9.8E-06
52 Dichlorobromomethane............       75-27-4         0.034  ...............  ............              3.4              4.3              4.8  ...............  ...........              2.0
53 Dieldrin........................       60-57-1            16  ...............  ............           14,000          210,000          410,000  ...............      9.3E-08          9.3E-08
54 Diethyl Phthalate...............       84-66-2  ............             0.20           0.8          \a\ 920          \a\ 920          \a\ 920  ...............           50               50
55 Dimethyl Phthalate..............      131-11-3  ............             0.20            10        \a\ 4,000        \a\ 4,000        \a\ 4,000  ...............          100              100
56 Di-n-Butyl Phthalate............       84-74-2  ............             0.20           0.1        \a\ 2,900        \a\ 2,900        \a\ 2,900  ...............            2                2
57 Dinitrophenols..................    25550-58-7  ............             0.20         0.002  ...............  ...............  ...............             1.51           10               70
58 Endosulfan Sulfate..............     1031-07-8  ............             0.20         0.006               88              120              140  ...............            3                3
59 Endrin..........................       72-20-8  ............             0.80        0.0003            4,600           36,000           46,000  ...............        0.002            0.002

60 Endrin Aldehyde.................     7421-93-4  ............             0.80        0.0003              440              920              850  ...............         0.09             0.09
61 Ethylbenzene....................      100-41-4  ............             0.20         0.022              100              140              160  ...............          8.9              9.5
62 Fluoranthene....................      206-44-0  ............             0.20          0.04        \a\ 1,500        \a\ 1,500        \a\ 1,500  ...............            1                1
63 Fluorene........................       86-73-7  ............             0.20          0.04              230              450              710  ...............            5                5
64 gamma-BHC (Lindane).............       58-89-9  ............             0.50        0.0047            1,200            2,400            2,500  ...............         0.33  ...............
65 Heptachlor......................       76-44-8           4.1  ...............  ............           12,000          180,000          330,000  ...............      4.4E-07          4.4E-07
66 Heptachlor Epoxide..............     1024-57-3           5.5  ...............  ............            4,000           28,000           35,000  ...............      2.4E-06          2.4E-06
67 Hexachlorobenzene...............      118-74-1          1.02  ...............  ............           18,000           46,000           90,000  ...............      5.9E-06          5.9E-06
68 Hexachlorobutadiene.............       87-68-3          0.04  ...............  ............           23,000            2,800            1,100  ...............       0.0007           0.0007
69 Hexachlorocyclohexane-Technical.      608-73-1           1.8  ...............  ............              160              220              250  ...............      0.00073          0.00076
70 Hexachlorocyclopentadiene.......       77-47-4  ............             0.20         0.006              620            1,500            1,300  ...............          0.3              0.3
71 Hexachloroethane................       67-72-1          0.04  ...............  ............            1,200              280              600  ...............         0.01             0.01
72 Indeno (1,2,3-cd) Pyrene........      193-39-5          0.73  ...............  ............        \a\ 3,900        \a\ 3,900        \a\ 3,900  ...............      9.8E-05          9.8E-05
73 Isophorone......................       78-59-1       0.00095  ...............  ............              1.9              2.2              2.4  ...............           28              140
74 Methoxychlor....................       72-43-5  ............             0.80         2E-05            1,400            4,800            4,400  ...............        0.001  ...............
75 Methylene Chloride..............       75-09-2         0.002  ...............  ............              1.4              1.5              1.6  ...............  ...........               90
76 Methylmercury...................    22967-92-6  ............         2.70E-05        0.0001  ...............  ...............  ...............  ...............  ...........    \c\ 0.02 (mg/
                                                                                kg)
77 Nickel..........................     7440-02-0  ............             0.20          0.02  ...............  ...............  ...............               47           20               20
78 Nitrobenzene....................       98-95-3  ............             0.20         0.002              2.3              2.8              3.1  ...............           10               40
79 Nitrosamines....................  ............         43.46  ...............  ............  ...............  ...............  ...............             0.20      0.00075            0.032
80 N-Nitrosodibutylamine...........      924-16-3          5.43  ...............  ............  ...............  ...............  ...............             3.38      0.00438           0.0152
81 N-Nitrosodiethylamine...........       55-18-5         43.46  ...............  ............  ...............  ...............  ...............             0.20      0.00075            0.032
82 N-Nitrosodimethylamine..........       62-75-9            51  ...............  ............  ...............  ...............  ...............            0.026      0.00065             0.21
83 N-Nitrosodi-n-propylamine.......      621-64-7           7.0  ...............  ............  ...............  ...............  ...............             1.13       0.0042            0.035
84 N-Nitrosodiphenylamine..........       86-30-6        0.0049  ...............  ............  ...............  ...............  ...............              136         0.40             0.42
85 N-Nitrosopyrrolidine............      930-55-2          2.13  ...............  ............  ...............  ...............  ...............            0.055  ...........              2.4
86 Pentachlorobenzene..............      608-93-5  ............             0.20        0.0008            3,500            4,500           10,000  ...............        0.008            0.008
87 Pentachlorophenol...............       87-86-5           0.4  ...............  ............               44              290              520  ...............        0.003            0.003
88 Phenol..........................      108-95-2  ............             0.20           0.6              1.5              1.7              1.9  ...............        3,000           20,000
89 Polychlorinated Biphenyls (PCBs)     1336-36-3             2  ...............  ............  ...............  ...............  ...............           31,200    \d\ 4E-06        \d\ 4E-06
90 Pyrene..........................      129-00-0  ............             0.20          0.03          \a\ 860          \a\ 860          \a\ 860  ...............            2                2
91 Selenium........................     7782-49-2  ............             0.20         0.005  ...............  ...............  ...............              4.8           20               60
92 Toluene.........................      108-88-3  ............             0.20        0.0097               11               15               17  ...............           24               39
93 Toxaphene.......................     8001-35-2           1.1  ...............  ............            1,700            6,600            6,300  ...............      5.3E-05          5.3E-05
94 Trichloroethylene...............       79-01-6          0.05  ...............  ............              8.7               12               13  ...............          0.3              0.5
95 Vinyl Chloride..................       75-01-4           1.5  ...............  ............              1.4              1.6              1.7  ...............        0.019             0.12
96 Zinc............................     7440-66-6  ............             0.20           0.3  ...............  ...............  ...............               47          300              400
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ This bioaccumulation factor was estimated from laboratory-measured bioconcentration factors; EPA multiplied this bioaccumulation factor by the overall fish consumption rate of 286 g/day to
  calculate the human health criteria.
\b\ EPA's CWA section 304(a) HHC for benzene use a CSF range of 0.015 to 0.055 per mg/kg-day. EPA used the higher end of the CSF range (0.055 per mg/kg-day) to derive the final benzene
  criteria.
\c\ This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish) and applies equally to fresh and marine waters. See Water Quality Criterion for the
  Protection of Human Health: Methylmercury (EPA-823-R-01-001, January 3, 2001) for how this value is calculated using the criterion equation in EPA's 2000 Methodology rearranged to solve for
  a protective concentration in fish tissue rather than in water.
\d\ This criterion applies to total PCBs (i.e., the sum of all congener or isomer or homolog or Aroclor analyses).
\e\ EPA multiplied this bioconcentration factor by the overall fish consumption rate of 286 g/day to calculate the human health criteria.

i. Sustenance Fishing Designated Use and Tribal Target Population
    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 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 cultural practices,
including the ability to exercise sustenance fishing practices.
Accordingly, EPA interpreted the state's ``fishing'' designated use, as
applied to waters in Indian lands, to mean ``sustenance fishing'' and
approved it as such. EPA also approved a specific sustenance fishing
right reserved in MIA sections 6207(4) and (9) as a designated use for
all inland waters of the Southern Tribes' reservations. Against this
backdrop, EPA approved or disapproved all of Maine's HHC for toxic
pollutants as applied to waters in Indian lands after evaluating
whether they satisfied CWA requirements.
    EPA determined that the tribal populations must be treated as the
general target population in waters in Indian lands. EPA disapproved
many of 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. EPA concluded that the disapproved HHC did
not support the designated use of sustenance fishing in such waters
because they were not based on the higher, unsuppressed fish
consumption rates that reflect the tribes' sustenance fishing
practices. Accordingly, EPA proposed, and is now finalizing, HHC that
EPA has determined will protect the sustenance fishing designated use,
based on sound science and consistent with the CWA and EPA regulations
and policy.
ii. 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 CWA section 304(a) HHC for the combined
activities of drinking water and consuming fish/shellfish obtained from
inland and nearshore waters, and separate CWA section 304(a) HHC for
consuming only fish/shellfish originating from inland and nearshore
waters. The latter criteria apply in cases where the designated uses of
a waterbody include supporting fish/shellfish for human consumption but
not drinking water supply sources (e.g., in non-potable estuarine
waters).
    The criteria are based on two types of biological endpoints: (1)
Carcinogenicity and (2) systemic toxicity (i.e., all adverse effects
other than cancer). EPA takes an integrated approach and considers both
cancer and non-cancer effects when deriving HHC. Where sufficient data
are available, EPA derives criteria using both carcinogenic and non-
carcinogenic toxicity endpoints and recommends the lower value. HHC for
carcinogenic effects are typically calculated using the following input
parameters: Cancer slope factor, excess lifetime cancer risk level,
body weight, drinking water intake rate, fish consumption rate(s), and
bioaccumulation factor(s). HHC for noncarcinogenic and nonlinear
carcinogenic effects are typically calculated using reference dose,
relative source contribution (RSC), body weight, drinking water intake
rate, fish consumption rate(s) and bioaccumulation factor(s). EPA
selects a mixture of high-end and central (mean) tendency inputs to the
equation in order to derive recommended criteria that ``afford an
overall level of protection targeted at the high end of the general
population (i.e., the target population or the criteria-basis
population).'' \10\
---------------------------------------------------------------------------

    \10\ United States Environmental Protection Agency (U.S. EPA).
2000. Methodology for Deriving Ambient Water Quality Criteria for
the Protection of Human Health. EPA-822-B-00-004, p. 2-1.
---------------------------------------------------------------------------

    EPA received comments supporting and opposing specific input
parameters EPA used to derive the proposed HHC. The specific input
parameters used are explained in the following paragraphs.
iii. Maine-Specific HHC Inputs
    I. Cancer Risk Level. As set forth in EPA's 2000 Methodology for
Deriving Ambient Water Quality Criteria for the Protection of Human
Health (the ``2000 Methodology''), EPA calculates its CWA section
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 CWA section 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 a one in a
million increment above the background risk of developing cancer from
all other exposures.\11\
---------------------------------------------------------------------------

    \11\ Id., p. 2-6.
---------------------------------------------------------------------------

    In this rule, EPA derived the final HHC for carcinogens using a
10-\6\ CRL, consistent with EPA's 2000 Methodology and with
Maine Department of Environmental Protection (DEP) Rule Chapter 584,
which specifies that water quality criteria for carcinogens must be
based on a 10-\6\ CRL, and which EPA approved for waters in
Indian lands on February 2, 2015.\12\ The HHC provide the tribes
engaged in sustenance fishing in waters in Indian lands in Maine with
an equivalent level of cancer risk protection (i.e., 10-\6\)
as is afforded to the general population in Maine outside of waters in
Indian lands.
---------------------------------------------------------------------------

    \12\ The only exception from the requirement to use a CRL of
10-\6\ in Chapter 584 is for arsenic, for which a CRL of
10-\4\ is required. EPA disapproved the arsenic CRL for
waters in Indian lands.
---------------------------------------------------------------------------

    EPA received comments in favor of using the proposed
10-\6\ CRL level as well as recommendations for higher and
lower CRLs. Responses to those comments are summarized in section
III.D.5.
    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 an
individual to a substance that is likely to be without an appreciable
risk of deleterious effects during a lifetime. 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.
    EPA did not receive any comments on the pollutant-specific RfDs or
CSFs used in the derivation of the proposed criteria, which were based
on EPA's National Recommended Water Quality Criteria.\13\ EPA has used
the same values to derive the final HHC.
---------------------------------------------------------------------------

    \13\ 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. https://www.epa.gov/wqc/human-health-water-quality-criteria.
---------------------------------------------------------------------------

    III. Body Weight. The final HHC were calculated using the proposed
body weight of 80 kilograms (kg), consistent with the default body
weight used in EPA's most recent National

Recommended Water Quality Criteria.\14\ This body weight is the average
weight of a U.S. adult age 21 and older, based on National Health and
Nutrition Examination Survey (``NHANES'') data from 1999 to 2006.\15\
EPA received one comment regarding body weight, which requested that
EPA use a body weight of 70 kg. However, the commenter did not present
a sound scientific rationale to support the use of a different body
weight. See Topic 6 of the RTC document for a more detailed response.
---------------------------------------------------------------------------

    \14\ 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. https://www.epa.gov/wqc/human-health-water-quality-criteria.
    \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.
---------------------------------------------------------------------------

    IV. Drinking water intake. The final HHC were calculated using the
proposed drinking water intake rate of 2.4 liters per day (L/day),
consistent with the default drinking water intake rate used in EPA's
most recent National Recommended Water Quality Criteria.\16\ This rate
represents the per capita estimate of combined direct and indirect
community water ingestion at the 90th percentile for adults ages 21 and
older.\17\ EPA did not receive any comments regarding the proposed
drinking water intake rate.
---------------------------------------------------------------------------

    \16\ 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. https://www.epa.gov/wqc/human-health-water-quality-criteria.
    \17\ 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.
---------------------------------------------------------------------------

    V. Bioaccumulation Factors (BAFs) and Bioconcentration Factors
(BCFs). The final HHC were calculated using the proposed pollutant-
specific BAFs or BCFs, consistent with the factors used in EPA's most
recent National Recommended Water Quality Criteria.\18\ These factors
are used to relate aqueous pollutant concentrations to predicted
pollutant concentrations in the edible portions of ingested species.
EPA did not receive any comments regarding specific proposed BAFs or
BCFs.
---------------------------------------------------------------------------

    \18\ 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. https://www.epa.gov/wqc/human-health-water-quality-criteria.
---------------------------------------------------------------------------

    VI. Fish Consumption Rate (FCR). In finalizing the HHC, EPA used
the proposed FCR of 286 g/day to represent present day sustenance level
fish consumption for waters in Indian lands. This FCR supports the
designated use of sustenance fishing. EPA selected this consumption
rate based on information contained in an historical/anthropological
study, entitled the Wabanaki Cultural Lifeways Exposure Scenario \19\
(``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 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 estimate for
contemporary tribal sustenance level fish consumption for waters where
the sustenance fishing designated use applies.
---------------------------------------------------------------------------

    \19\ Harper, B., Ranco, D., et al. 2009. Wabanaki Traditional
Cultural Lifeways Exposure Scenario. https://www.epa.gov/tribal/wabanaki-traditional-cultural-lifeways-exposure-scenario.
---------------------------------------------------------------------------

    EPA received many comments that agreed and some that disagreed with
EPA's selection of the proposed FCR of 286 g/day. Responses to those
comments can be found in section III.D of this preamble and, in further
detail, in Topic 3 of the RTC document.
    VII. Relative Source Contribution (RSC). For pollutants that
exhibit a threshold of exposure before deleterious effects occur, as is
the case for noncarcinogens and nonlinear carcinogens, EPA applied a
RSC to account for other potential human exposures to the
pollutant.\20\ Other sources of exposure might include, but are not
limited to, exposure to a particular pollutant from non-fish food
consumption (e.g., consumption of fruits, vegetables, grains, meats, or
poultry), dermal exposure, and inhalation exposure. For substances for
which the toxicity endpoint is carcinogenicity based on a linear low-
dose extrapolation, only the exposures from drinking water and fish
ingestion are reflected in HHC; no other potential sources of exposure
to pollutants or other potential exposure pathways have been considered
in developing HHC.\21\ 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.
---------------------------------------------------------------------------

    \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.
    \21\ Id.
---------------------------------------------------------------------------

    As in the proposed HHC, for the pollutants included in EPA's 2015
criteria update, EPA used the same RSCs in the final HHC as were used
in the criteria update. Also as in the proposed HHC, for pollutants
where EPA did not update the section 304(a) HHC in 2015, EPA used a
default RSC of 0.20 to derive the final HHC except for antimony, for
which EPA used an RSC of 0.40 consistent with the RSC value used the
last time the Agency updated this criterion. EPA did not receive any
comments on specific RSCs used in the derivation of the proposed
criteria.

2. Final WQS for Waters in Indian Lands in Maine

a. Bacteria Criteria
i. Recreational Bacteria Criteria
    EPA is finalizing the proposed year-round recreational bacteria
criteria for Class AA, A, B, C, GPA, SA, SB and SC waters in Indian
lands. The magnitude criteria are 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 and are based on EPA's 2012 Recreational
Water Quality Criteria (RWQC) recommendations.\22\
---------------------------------------------------------------------------

    \22\ USEPA. 2012. Recreational Water Quality Criteria. U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
Office of Water 820-F-12-058. https://www.epa.gov/wqc/2012-recreational-water-quality-criteria.
---------------------------------------------------------------------------

    Several comments supported EPA's proposed rule and the year round
applicability of the criteria. Maine DEP objected to EPA's inclusion of
wildlife sources in the scope of the bacteria criteria and requested
that the criteria not be applicable from October 1-May 14, similar to
Maine's disapproved criteria. For the reasons discussed in section
III.E.2., EPA has determined that, based on best available information,
it is necessary to include wildlife sources in the scope of the
criteria, and to apply the criteria year round, in order to protect
human health and the designated use of recreation in and on the water.
ii. Shellfishing Bacteria Criteria
    EPA's final bacteria rule for Class SA shellfish harvesting areas
for waters in

Indian lands differs slightly from the proposed numeric total coliform
bacteria criteria, as a result of comments from the state. Maine DEP
requested EPA to express the criteria in terms of fecal coliform
bacteria rather than total coliform bacteria, noting that the National
Shellfish Sanitation Program (NSSP) allows the use of either indicator,
that Maine DEP sets permit limits on fecal coliform bacteria rather
than total coliform, and that Maine Department of Marine Resources
(DMR) uses fecal coliform bacteria as its indicator parameter when
making shellfish area opening/closure decisions. Maine DMR requested
EPA not to specify a specific numeric standard but rather to promulgate
the same narrative criterion that applies to Class SB and SC waters.
For those classes of waters, Maine's WQS provide that instream bacteria
levels may not exceed the criteria recommended under the NSSP.
    The NSSP is the federal/state cooperative program recognized by the
U.S. Food and Drug Administration (FDA) and the Interstate Shellfish
Sanitation Conference (ISSC) for the sanitary control of shellfish
produced and sold for human consumption.
    EPA agrees that the NSSP allows for the use of either fecal
coliform bacteria or total coliform bacteria as the indicator organism
to protect shellfish harvesting. The current NSSP recommendations \23\
for those organisms are consistent with EPA's national recommended
water quality criteria.\24\ The NSSP recommendations for fecal coliform
standards and sampling protocols are set forth in Section II. Model
Ordinance Chapter IV. Growing Areas .02 Microbial Standards (pages 51-
54). The NSSP recommendations for total coliform standards and sampling
protocols are set forth in Section IV, Guidance Documents Chapter II.
Growing Areas .01 Total Coliform Standards (pages 216-219). Both sets
of recommendations apply to various types of shellfish growing areas
including remote status, areas affected by point source pollution, and
areas affected by nonpoint source pollution.
---------------------------------------------------------------------------

    \23\ http://www.fda.gov/downloads/Food/GuidanceRegulation/FederalStateFoodPrograms/UCM505093.pdf.
    \24\ USEPA. 1986. Quality Criteria for Water 1986, United States
Environmental Protection Agency, Washington, DC. EPA 440/5-86-001.
---------------------------------------------------------------------------

    In light of the state's concerns and suggestions, EPA's final rule
contains a narrative criterion similar to Maine's approved criterion
for Class SB and SC waters. The final rule provides ``The numbers of
total coliform bacteria or other specified indicator organisms in
samples representative of the waters in shellfish harvesting areas may
not exceed the criteria recommended under the National Shellfish
Sanitation Program, United States Food and Drug Administration as set
forth in the Guide for the Control of Molluscan Shellfish, 2015
Revision.'' EPA has added a specific reference to the date of the NSSP
recommendations because there are legal constraints on incorporating
future recommendations by reference. The NSSP 2015 recommendations are
available online at: http://www.fda.gov/Food/GuidanceRegulation/FederalStateFoodPrograms/ucm2006754.htm. The recommendations are also
included in the docket for this rulemaking, which is available both
online at regulations.gov and in person at the EPA Docket Center
Reading Room, William Jefferson Clinton West Building, Room 3334, 1301
Constitution Avenue NW., Washington, DC 20004, and<PHONE_NUMBER>.
Finally, the 2015 NSSP recommendations are obtainable from the U.S.
Food and Drug Administration's Center for Food Safety and Applied
Nutrition, Shellfish and Aquaculture Policy Branch, 5100 Paint Branch
Parkway (HFS-325), College Park, MD 20740.
b. Ammonia Criteria for Fresh Waters
    EPA is finalizing the proposed ammonia criteria for fresh waters in
Indian lands to protect aquatic life. The criteria are based on EPA's
2013 updated CWA section 304(a) recommended ammonia criteria.\25\ They
are expressed as functions of temperature and pH, so the applicable
criteria vary by waterbody, depending on the temperature and pH of
those waters. EPA received several comments in support of the proposed
ammonia criteria, and received no comments requesting changes.
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    \25\ USEPA. 2013. Aquatic Life Ambient Water Quality Criteria
for Ammonia-Freshwater 2013. United States Environmental Protection
Agency, Washington, DC. EPA 822-R-13-001. https://www.epa.gov/wqc/aquatic-life-criteria-ammonia.
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c. pH Criterion for Fresh Waters
    EPA is finalizing the proposed pH criterion of 6.5 to 8.5 to
protect aquatic life in fresh waters in Indian lands. The criterion is
based on EPA's 1986 national recommended criterion.\26\ EPA received
comments from the state and one industry, both requesting that Maine's
pH criterion of 6.0-8.5 be retained. However, EPA does not agree that
6.0 adequately protects aquatic life and notes in particular that pH
values of 6.0 and lower have been shown to be detrimental to sensitive
aquatic life, such as developing Atlantic salmon eggs and
smolts.27 28 29 See Topic 11 of the RTC document for more
detailed responses to comments.
---------------------------------------------------------------------------

    \26\ USEPA. 1986. Quality Criteria for Water 1986, U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
EPA 440/5-86-001. pH section. https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=00001MGA.txt.
    \27\ Peterson, R.H., P.G. Daye, J.L. Metcalfe. 1980. Inhibition
of Atlantic salmon (Salmo salar) hatching at low pH. Can. J. Fish.
Aquat. Sci. 37: 770-774.
    \28\ Staurnes, M., F. Kroglund and B.O. Rosseland. 1995. Water
quality requirement of Atlantic salmon (Salmo salar) in water
undergoing acidification or liming in Norway. Water, Air and Soil
Pollution 85: 347-352.
    \29\ Staurnes, M., L.P. Hansen, K. Fugelli, R. Haraldstad. 1996.
Short-term exposure to acid water impairs osmoregulation, seawater
tolerance, and subsequent marine survival of smolts of Atlantic
salmon (Salmo salar L.) Can. J. Fish. Aquat. Sci. 53: 1965-1704.
---------------------------------------------------------------------------

d. Temperature Criteria for Tidal Waters
    EPA is finalizing the proposed temperature criteria for tidal
waters in Indian lands. The criteria will assure protection of the
indigenous marine community characteristic of the intertidal zone at
Pleasant Point in Passamaquoddy Bay, and are consistent with EPA's CWA
section 304(a) recommended criteria for tidal waters.\30\ They include
a maximum summer weekly average temperature and a maximum weekly
average temperature rise over reference site baseline conditions.
---------------------------------------------------------------------------

    \30\ USEPA. 1986. Quality Criteria for Water 1986, U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
EPA 440/5-86-001. Temperature section. https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=00001MGA.txt.
---------------------------------------------------------------------------

    Maine DEP commented with concerns about the difficulty of finding
reference sites to determine baseline temperatures and a question about
whether there should be a baseline established for each season. EPA is
confident that reference sites will not be difficult to identify, and
there is no need to establish separate baselines outside the defined
summer season. See Topic 12 of the RTC document for a more detailed
response.
e. Natural Conditions Provisions
    EPA is finalizing the proposed rule for waters in Indian lands that
stated that Maine's natural conditions provisions in 38 M.R.S. 420(2.A)
and 464(4.C) do not apply to water quality criteria intended to protect
public health. EPA received several comments in support of the proposed
rule, and received no comments requesting changes.
f. Mixing Zone Policy
    EPA is finalizing the proposed mixing zone policy for waters in
Indian lands with one small change to the

prohibition of mixing zones for bioaccumulative pollutants.
Specifically, in order to avoid confusion over what is meant by
``bioaccumulative pollutants'' for the purpose of this rule, EPA has
added a parenthetical definition which specifies that bioaccumulative
pollutants are those ``chemicals for which the bioconcentration factors
(BCF) or bioaccumulation factors (BAF) are greater than 1,000.'' This
definition is based on EPA's definition of bioaccumulation for chemical
substances found at 64 FR 60194 (November 4, 1999).
    EPA received several comments in support of the mixing zone policy.
One of those commenters added that a total ban on mixing zones would be
preferable. Two commenters asserted that EPA does not have the legal
authority or the scientific basis to ban mixing zones for
bioaccumulative pollutants outside the Great Lakes. EPA disagrees, for
the reasons discussed in section III.E.1 of this preamble. One
commenter raised comments about thermal mixing zones specific to its
facility, and EPA's response to those comments are contained in the RTC
document at Topic 9.
3. Final WQS for All Waters in Maine
a. Dissolved Oxygen for Class A Waters
    EPA is finalizing the proposed dissolved oxygen criteria for all
Class A waters in Maine. The rule provides that dissolved oxygen shall
not be less than 7 ppm (7 mg/L) or 75% of saturation, whichever is
higher, year-round. For the period from October 1 through May 14, in
fish spawning areas, the 7-day mean dissolved oxygen concentration
shall not be less than 9.5 ppm (9.5 mg/L), and the 1-day minimum
dissolved oxygen concentration shall not be less than 8 ppm (8.0 mg/L).
EPA received several comments in support of the proposed criteria, and
received no comments requesting changes.
b. Waiver or Modification of WQS
    EPA is finalizing the proposed rule stating that 38 M.R.S. 363-D,
which allows waivers of state law in the event of an oil spill, does
not apply to state or federal WQS applicable to waters in Maine,
including designated uses, criteria to protect designated uses, and
antidegradation requirements. EPA received several comments in support
of the proposed rule, and received no comments requesting changes.
4. Final WQS for Waters in Maine Outside of Indian Lands
a. Phenol HHC for Consumption of Water Plus Organisms
    EPA is finalizing the proposed phenol HHC for consumption of water
plus organisms of 4000 [mu]g/L, for waters in Maine outside of Indian
lands. The criterion is consistent with EPA's June 2015 national
criteria recommendation,\31\ except that EPA used Maine's default fish
consumption rate for the general population of 32.4 g/day, consistent
with DEP Rule Chapter 584.\32\ EPA received several comments in support
of the proposed rule, and received no comments requesting changes.
---------------------------------------------------------------------------

    \31\ 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. https://www.epa.gov/wqc/human-health-water-quality-criteria.
    \32\ 06-096 Code of Maine Rules, Chapter 584, Surface Water
Quality Criteria for Toxic Pollutants.
---------------------------------------------------------------------------

III. Summary of Major Comments Received and EPA's Response

A. Overview of Comments

    EPA received 104 total comments, 100 of which are unique comments.
The vast majority of the comments were general statements of support
for EPA's proposed rule from private citizens, including tribal
members. Tribes and others provided substantive comments that also were
generally supportive regarding the importance of protecting the
designated use of sustenance fishing, identifying tribes as the target
population, and using a 286 g/day fish consumption rate.
    EPA also received comments critical of the proposal, principally
from the Maine Attorney General and DEP, a single discharger and a
coalition of dischargers, and two trade organizations. The focus of the
remainder of this section III identifies and responds to the major
adverse comments. Additionally, a comprehensive RTC document addressing
all comments received is included in the docket for this rulemaking.

B. Maine Indian Settlement Acts

    Before providing a more detailed discussion of the rationale
relating to each element of EPA's analysis supporting this
promulgation, the Agency first addresses a general complaint made by
several commenters that EPA has developed a complex rationale for its
disapproval of Maine's HHC and corresponding promulgation.
    EPA acknowledges that there are several steps in the Agency's
analysis of how Maine's WQS must protect the uses of the waters in
Indian lands, including application of the Agency's expert scientific
and policy judgment. The basic concepts are as follows:
     The Indian settlement acts provide for the Indian tribes
to fish for their individual sustenance in waters in Indian lands and
effectively establish a sustenance fishing designated use cognizable
under the CWA for such waters.
     The CWA and EPA's regulations mandate that water quality
criteria must protect designated uses of waters provided for in state
law. Designated uses are use goals of a water, whether or not they are
being attained.
     When analyzing how water quality criteria protect a
designated use, an agency must focus on the population that is
exercising that use, and must assess the full extent of that use's
goal, where data are available.
    The relevant explanatory details for each step of this rationale
are presented below. But the underlying structure of the analysis is
straightforward and appropriate under and consistent with applicable
law.
    Another general comment EPA received was that the agency's approach
``would impermissibly give tribes in Maine an enhanced status and
greater rights with respect to water quality than the rest of Maine's
population.'' Comments of Janet T. Mills, Maine Attorney General, (page
2). EPA explains below why the analysis EPA presented in its February
2015 decision and the proposal for this action is not only permissible,
but also mandated by the CWA as informed by the Indian settlement acts.
But as a general matter EPA disagrees that this action is impermissible
because it accords the tribes in Maine ``greater rights'' or somehow
derogates the water quality protection provided to the rest of Maine's
population.
    EPA is addressing the particular sustenance fishing use provided
for these tribes under Maine law and ratified by Congress. Because that
use is confirmed in provisions in the settlement acts that pertain
specifically and uniquely to the Indian tribes in Maine, EPA's analysis
of the use and the protection of that use must necessarily focus on how
the settlement acts intend for the tribes to be able to use the waters
at issue here. However, Maine's claim that EPA is providing tribes in
Maine ``greater rights'' than the general population is incorrect. In
this action, EPA is not granting ``rights'' to anyone. Rather, EPA is
simply promulgating

WQS in accordance with the requirements of the CWA--i.e., identifying
the designated use for waters in Indian lands, and establishing
criteria to protect the target population exercising that use. As
explained above, in light of the Indian settlement acts, the designated
use is sustenance fishing, the tribes are the target population, and
EPA has selected the appropriate FCR of that target population. This
approach, together with EPA's selection of 10-6 CRL, is
consistent with Maine's approach to protecting the target population in
Maine waters outside of Indian lands. EPA's rule provides a comparable
level of protection for the target population (sustenance fishers) for
the waters in Indian lands that Maine provides to the target population
for its fishing designated use (recreational fishers) that applies to
waters outside Indian lands.\33\ Further, the resulting HHC that EPA is
promulgating in this rule protect both non-tribal members and tribal
members in Maine. The great majority of the waters subject to the HHC
are rivers and streams that are shared in common with non-Indians in
the state or that flow into or out of waters outside Indian lands. It
is not just the members of the Indian tribes in Maine who will benefit
from EPA's action today.
---------------------------------------------------------------------------

    \33\ EPA recognizes that the final HHC also reflect inputs
consistent with EPA's 2015 section 304(a) recommendations, which are
not currently reflected in Maine's HHC. EPA anticipates that Maine
will update its HHC consistent with these inputs in its next
triennial review.
---------------------------------------------------------------------------

    One striking aspect of the comments EPA received on its proposal is
that every individual who commented supported EPA's proposed action,
including many non-Indians. Nearly all of the comments were
individualized expressions of support, ranging from a profound
recognition of the need to honor commitments made to the tribes in the
Indian settlement acts to an acknowledgement that everyone in Maine
benefits from improved water quality. It is notable that the record for
this action shows that individuals in Maine who commented did not
express concern that the tribes are being accorded a special status or
that this action will in any way disadvantage the rest of Maine's
population.
    As described in section II.B.1, EPA previously approved MIA
sections 6207(4) and (9) as an explicit designated use for the inland
waters of the reservations of the Southern Tribes and interpreted and
approved Maine's designated use of ``fishing'' for all waters in Indian
lands to mean ``sustenance fishing.'' Several commenters challenged
EPA's conclusion that the Indian settlement acts in Maine have the
effect of establishing a designated use that includes sustenance
fishing. This section explains how the Indian settlement acts provide
for the Indian tribes in Maine to fish for their sustenance, and
responds to arguments that this conclusion violates the settlement
acts. Section III.C explains how EPA, under the CWA, interprets those
provisions of state law as a sustenance fishing designated use which
must be protected by the WQS applicable to the waters where that use
applies.
    As explained in more detail in the RTC document, MICSA, MIA, ABMSA,
and MSA include different provisions governing sustenance practices,
including fishing, depending on the type of Indian lands involved. In
the reservations of the Southern Tribes, MIA explicitly reserves to the
tribes the right to fish for their individual sustenance.\34\ In the
trust lands of the Southern Tribes, MIA provides a regulatory framework
that requires consideration of ``the needs or desires of the tribes to
establish fishery practices for the sustenance of the tribes,'' among
other factors.\35\ Congress clearly intended the Northern Tribes to be
able to sustain their culture on their trust lands, consistent with
Maine law, which amply accommodates a sustenance fishing diet.\36\
Therefore, each of these provisions under the settlement acts in its
own way is designed to establish a land base for these tribes where
they may practice their sustenance lifeways. Indeed, EPA received an
opinion from the Solicitor of the United States Department of the
Interior (DOI), which analyzed the settlement acts and concluded that
the tribes in Maine ``have fishing rights connected to the lands set
aside for them under federal and state statutes.'' \37\
---------------------------------------------------------------------------

    \34\ 30 M.R.S. section 6207(4).
    \35\ 30 M.R.S. section 6207(1), (3).
    \36\ 102 S. Rpt. 136 (1991).
    \37\ Letter from Hilary C. Tompkins, Solicitor, Department of
Interior, to Avi S. Garbow, General Counsel, EPA, January 30, 2015,
a copy of which is in the docket supporting this action.
---------------------------------------------------------------------------

    In its February 2015 decision, EPA analyzed how the settlement acts
include extensive provisions to confirm and expand the tribes' land
base. The legislative record makes it clear that a key purpose behind
that land base is to preserve the tribes' culture and support their
sustenance practices. MICSA section 5 establishes a trust fund to allow
the Southern Tribes and the Maliseets to acquire land to be put into
trust. In addition, the Southern Tribes' reservations are confirmed as
part of their land base.\38\ MICSA combines with MIA sections 6205 and
6205-A to establish a framework for taking land into trust for those
three Tribes, and laying out clear ground rules governing any future
alienation of that land and the Southern Tribes' reservations. Sections
4(a) and 5 of the ABMSA and section 7204 of the state MSA accomplish
essentially the same result for the Micmacs, consistent with the
purpose of those statutes to put that tribe in the same position as the
Maliseets.
---------------------------------------------------------------------------

    \38\ 30 M.R.S. section 6205(1)(A) and (2)(A).
---------------------------------------------------------------------------

    EPA has concluded that one of the overarching purposes of the
establishment of this land base for the tribes in Maine was to ensure
their continued opportunity to engage in their unique cultural
practices to maintain their existence as a traditional culture. An
important part of the tribes' traditional culture is their sustenance
lifeways. The legislative history for MICSA makes it clear that one
critical purpose for assembling the land base for the tribes in Maine
was to preserve their culture. The Historical Background in the Senate
Report for MICSA opens with the observation that ``All three Tribes
[Penobscot, Passamaquoddy and Maliseet] are riverine in their land-
ownership orientation.'' \39\ Congress also specifically noted that one
purpose of MICSA was to avoid acculturation of the tribes in Maine:
---------------------------------------------------------------------------

    \39\ Sen. Rep. No. 96-957, at 11.

    Nothing in the settlement provides for acculturation, nor is it
the intent of Congress to disturb the cultural integrity of the
Indian people of Maine. To the contrary, the Settlement offers
protections against this result being imposed by outside entities by
providing for tribal governments which are separate and apart from
the towns and cities of the State of Maine and which control all
such internal matters. The Settlement also clearly establishes that
the Tribes in Maine will continue to be eligible for all federal
Indian cultural programs.\40\
---------------------------------------------------------------------------

    \40\ Id. at 17.

    As both the Penobscot and Maliseet extensively documented in their
comments on this action, their culture relies heavily on sustenance
practices, including sustenance fishing. So if a purpose of MICSA is to
avoid acculturation and protect the tribes' continued political and
cultural existence on their land base, then a key purpose of that land
base is to support those sustenance practices.
    Several comments dispute that the settlement acts are intended to
provide for the tribes' sustenance lifeways, and assert instead that
their key purpose was to subject the tribes to the jurisdictional

authority of the state and treat tribal members identically to all
citizens in the state. These comments do not dispute the evidence EPA
relied on in February 2015 to find that Congress intended to support
the continuation of the tribes' traditional culture. Rather, the
commenters argue that the overriding purpose of the settlement acts was
to impose state law, including state environmental law, on the tribes,
which the commenters believe the state could do without regard to the
settlement act provisions for sustenance fishing. These assertions
reflect an overly narrow interpretation of the settlement acts, and
EPA, with a supporting opinion from DOI, has concluded that the
settlement acts both provide for the tribes' sustenance lifeways and
subject the tribal lands to state environmental regulation. Those two
purposes are not inconsistent, but rather support each other. It would
be inconsistent for the state to codify provisions for tribal
sustenance fishing in one state law, which was congressionally
ratified, and then in another state law subject that practice to
environmental conditions that render it unsafe.
    EPA disagrees with the comment that promulgation of the HHC
violates the jurisdictional arrangement in MICSA and MIA. The assertion
appears to be that the grant of jurisdiction to the state in the
territories of the Indian tribes in Maine means that the tribes must
always be subject to the same environmental standards as any other
person in Maine. As EPA made clear in its February 2015 decision, the
Agency agrees that MICSA grants the state the authority to set WQS in
Indian territories. Making that finding, however, does not then lead to
the conclusion that the state has unbounded authority to set WQS
without regard to the factual circumstances and legal framework that
apply to the tribes under both the CWA and the Indian settlement acts.
No state has authority or jurisdiction to adopt WQS that do not comply
with the requirements of the CWA. The state, like EPA and the tribes,
is bound to honor the provisions of the Indian settlement acts. Here,
the CWA, as informed by and applied in light of the requirements of the
settlement acts, requires that WQS addressing fish consumption in these
waters adequately protect the sustenance fishing use applicable to the
waters. Because this use applies only to particular waters that pertain
to the tribes, the WQS designed to protect the use will necessarily
differ from WQS applicable to other waters generally in the state. This
result does not violate the grant of jurisdiction to the state. Rather,
the state retains the authority to administer the WQS program
throughout the state, subject to the same basic requirements to protect
designated uses of the waters as are applicable to all states.
    EPA also disagrees that promulgation of the HHC violates the so-
called savings clauses in MICSA, Pub. L. 96-420, 94 Stat. 1785 sections
6(h) and 16(b), which block the application of federal law in Maine to
the extent that law ``accords or relates to a special status or right
of or to any Indian'' or is ``for the benefit of Indians'' and ``would
affect or preempt'' the application of state law. EPA has consistently
been clear that this action does not treat tribes in Maine in a similar
manner as a state (TAS) or in any way authorize any tribe in Maine to
implement tribal WQS under the federal CWA. Therefore, arguments about
whether MICSA blocks the tribes from applying to EPA for TAS under CWA
section 518(e) are outside the scope of, and entirely irrelevant to,
EPA's promulgation of federal WQS.
    Additionally, EPA disagrees that its disapproval of certain WQS in
tribal waters and this promulgation will ``affect or preempt the
application of the laws of the State of Maine'' using a federal law
that accords a special status to Indians within the meaning of MICSA
section 6(h) or a federal law ``for the benefit of Indians'' within the
meaning of section 16(b). With this promulgation, EPA is developing WQS
consistent with the requirements of the CWA as applied to the legal
framework and factual circumstances created by the Indian settlement
acts. EPA here is acting under CWA section 303, which was not adopted
``for the benefit of Indians,'' but rather sets up a system of
cooperative federalism typical of federal environmental statutes, where
states are given the lead in establishing environmental requirements
for areas under their jurisdiction, but within bounds defined by the
CWA and subject to federal oversight. In this case, the Indian
settlement acts provide for the tribes to fish for their sustenance in
waters in or adjacent to territories set aside for them, which has the
effect of establishing a sustenance fishing use in those waters.
Because that sustenance fishing use applies in those waters, CWA
section 303 requires Maine and EPA to ensure that use is protected. It
cannot be the case that the savings clauses in MICSA are intended to
block implementation of the Indian settlement acts or MICSA itself.
    In the RTC document, EPA addresses in detail the distinctions
contained in the Indian settlement acts for the Maine tribes and
comments received by EPA on this point. In short, the settlement acts
clearly codify a tribal right of sustenance fishing for inland,
anadromous, and catadromous fish in the inland waters of the Penobscot
Nation's and Passamaquoddy's reservations.\41\ EPA approved this right,
contained in state law, as an explicit designated use. The Southern
Tribes also have trust lands, to which the explicit sustenance fishing
right in section 6207 of MIA does not apply, but which are covered by a
regulatory regime under MIA that specifically provides for the Southern
Tribes to exercise their sustenance fishing practices. The statutory
framework for the Northern Tribes' trust lands provides for more direct
state regulation of those tribes' fishing practices. Nevertheless, as
confirmed by an opinion from the U.S. Department of the Interior,\42\
the Northern Tribes' trust lands include sustenance fishing rights
appurtenant to those land acquisitions, subject to state regulation.
Accordingly, EPA appropriately approved the ``fishing'' designated use
as ``sustenance fishing'' for all waters in Indian lands.
---------------------------------------------------------------------------

    \41\ 30 M.R.S. section 6207.
    \42\ Letter from Hilary C. Tompkins, Solicitor, Department of
Interior, to Avi S. Garbow, General Counsel, EPA, January 30, 2015,
a copy of which is in the docket supporting this action.
---------------------------------------------------------------------------

    Tribal representatives and members commented that EPA's
promulgation of HHC is consistent with EPA's trust responsibility to
the Indian tribes in Maine, and some suggested that EPA's trust
relationship with the tribes compels EPA to take this action.
Conversely, one commenter argued that this action is not authorized
because the federal government has no obligation under the trust
responsibility to take this action, and the Indian settlement acts
create no specific trust obligation to protect the tribes' ability to
fish for their sustenance. These comments raise questions about the
nature and extent of the federal trust responsibility to the Indian
tribes in Maine and the extent to which the trust is related to this
action. EPA agrees that this action is consistent with the United
States' general trust responsibility to the tribes in Maine. EPA also
agrees that the trust relationship does not create an independent
enforceable mandate or specific trust requirement beyond the Agency's
obligation to comply with the legal requirements generally applicable
to this situation under federal law, in this case the CWA as applied to
the circumstances of the tribes in Maine under the settlement acts.

    Consulting with affected tribes before taking an action that
affects their interests is one of the cornerstones of the general trust
relationship with tribes. EPA has fulfilled this responsibility to the
tribes in Maine. EPA has consulted extensively with the tribes to
understand their interests in this matter. EPA has also carefully
weighed input from the tribes, as it has all the comments the Agency
received on this action.
    EPA does not agree that the substance of this action is compelled
or authorized by the federal trust relationship with the tribes in
Maine independent of generally applicable federal law. This action is
anchored in two sets of legal requirements: First, the Indian
settlement acts, which reserve the tribes' ability to engage in
sustenance fishing; second, the CWA, which requires that this use must
be protected. The trust responsibility does not enhance or augment
these legal requirements, and EPA is not relying on the trust
responsibility as a separate legal basis for this action. The Indian
settlement acts created a legal framework with respect to these tribes
that triggered an analysis under the CWA about how to protect the
sustenance fishing use provided for under the settlement acts. This
analysis necessarily involves application of EPA's WQS regulations,
guidance, and science to yield a result that is specific to these
tribes, but each step of the analysis is founded in generally
applicable requirements under the CWA, not an independent specific
trust mandate.

C. Sustenance Fishing Designated Use

    Several commenters challenged EPA's approval, in its February 2015
Decision, of sections 6207(4) and (9) of the MIA as a designated use of
sustenance fishing applicable to inland waters of the Southern Tribes'
reservations. Several commenters also argued that EPA had no authority
to approve Maine's ``fishing'' designated use with the interpretation
that it means ``sustenance fishing'' for waters in Indian lands.
Related to both approvals, the commenters argued that Maine had never
adopted a designated use of ``sustenance fishing,'' thus EPA could not
approve such a use, and that EPA did not follow procedures required
under the CWA in approving any ``sustenance fishing'' designated use.
EPA disagrees, as discussed in sections III.C.1 and 2.
1. EPA's Approval of Certain Provisions in MIA as a Designated Use of
Sustenance Fishing in Reservation Waters.
    State laws can operate as WQS when they affect, create or provide
for, among other things, a use in particular waters, even when the
state has not specifically identified that law as a WQS.\43\ EPA has
the authority and duty to review and approve or disapprove such a state
law as a WQS for CWA purposes, even if the state has not submitted the
law to EPA for approval.\44\ Indeed, EPA has previously identified and
disapproved a Maine law as a ``de facto'' WQS despite the fact that
Maine did not label or present it as such.\45\
---------------------------------------------------------------------------

    \43\ See Florida Pub. Interest Grp v. EPA, 386 F.3d 1070, 1089-
90 (11th Cir. 2004) (holding that in order to determine whether a
state law constitutes a WQS, a district court must ``look beyond the
[state's] characterization of [the law]'' and ``determine[ ] whether
the practical impact of the [law] was to revise [the state's WQS]''
irrespective of the state's ``decision not to describe its own
regulations as new or revised [WQS]''); Pine Creek Valley Watershed
Ass'n v. United States, 137 F. Supp. 3d 767, 776 (E.D. Pa. 2015)
(deferring to EPA's determination on whether or not a state law
constitutes a WQS).
    \44\ See EPA, What is a New or Revised Water Quality Standard
Under CWA 303(c)(3)? Frequently Asked Questions, October 2012. See
also, Friends of Merrymeeting Bay v. Olsen, 839 F. Supp. 2d 366, 375
(D. Me. 2012) (``The EPA is under an obligation to review a law that
changes a water quality standard regardless of whether a state
presents it for review.''); Miccosukee Tribe of Indians v. EPA, 105
F.3d 599, 602 (11th Cir. 1997) (``Even if a state fails to submit
new or revised standards, a change in state water quality standards
could invoke the mandatory duty imposed on the Administrator to
review new or revised standards.'').
    \45\ Letter from Stephen S. Perkins, Director of Office of
Ecosystem Protection, EPA, to William J. Schneider, Maine Attorney
General (July 9, 2012) (disapproving as a WQS a state law that
required prevention of river herring passage on St. Croix River);
see Friends of Merrymeeting Bay, 839 F. Supp. 2d at 375 (indicating
EPA must consider whether such state law has the effect of changing
a WQS).
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    The MIA is binding law in the state, and sections 6207(4) and (9)
in that law clearly establish a right of sustenance fishing in the
inland reservation waters of the Southern Tribes. See Topic 3 of the
RTC document for a more detailed discussion. In other words, the state
law provides for a particular use in particular waters. It was
therefore appropriate for EPA to recognize that state law as a water
quality standard, and more specifically, as a designated use. EPA's
approval of these MIA provisions as a designated use of sustenance
fishing does not create a new federal designated use of tribal
``sustenance fishing,'' but rather gives effect to a WQS in state law
for CWA purposes in the same manner as other state WQS. Furthermore,
contrary to commenters' assertions, EPA did not fail to abide by any
required procedures before approving the MIA provisions as a designated
use. They were a ``new'' WQS for the purpose of EPA review, because EPA
had never previously acted on them. When EPA acts on any state's new or
revised WQS, there are no procedures necessary for EPA to undertake
prior to approval.\46\ The Maine state legislature, which has the
authority to adopt designated uses, held extensive hearings reviewing
the provisions of the MIA, including those regarding sustenance
fishing.
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    \46\ See 33 U.S.C. 1313(c)(3) and 40 CFR part 131.
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2. EPA's Interpretation and Approval of Maine's ``Fishing'' Designated
Use To Include Sustenance Fishing.
    In addition to approving certain provisions of MIA as a designated
use in the Southern Tribes' inland reservation waters, EPA also
interpreted and approved Maine's designated use of ``fishing'' to mean
``sustenance fishing'' for all waters in Indian lands. EPA disagrees
with comments that claim that EPA had no authority to do so because EPA
had previously approved that use for all waters in Maine without such
an interpretation. While EPA approved the ``fishing'' designated use in
1986 for other state waters, prior to its February 2015 decision, EPA
had not approved any of the state's WQS, including the ``fishing''
designated use, as being applicable to waters in Indian lands.
    Under basic principles of federal Indian law, states generally lack
civil regulatory jurisdiction within Indian country as defined in 18
U.S.C. 1151.\47\ Thus, EPA cannot presume a state has authority to
establish WQS or otherwise regulate in Indian country. Instead, a state
must demonstrate its jurisdiction, and EPA must determine that the
state has made the requisite demonstration and has authority, before a
state can implement a program in Indian country. Accordingly, EPA
cannot approve a state WQS for a water in Indian lands if it has not
first determined that the state has authority to do so.
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    \47\ Alaska v. Native Vill. of Venetie Tribal Gov't, 522 U.S.
520, 527 n.1. (1998) (``[g]enerally speaking, primary jurisdiction
over land that is Indian country rests with the Federal Government
and the Indian Tribe inhabiting it, and not with the States.''); see
also Okla. Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114, 128
(1993) (``[a]bsent explicit congressional direction to the contrary,
we presume against a State's having the jurisdiction to tax within
Indian Country . . . .'').
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    EPA first determined on February 2, 2015, that Maine has authority
to establish WQS for waters in Indian lands. Consistent with the
principle articulated above, it is EPA's position that all WQS
approvals that occurred prior to this date were limited to state

waters outside of waters in Indian lands. With regard to the
``fishing'' designated use, Maine submitted revisions to its water
quality standards program now codified at 38 M.R.S. section 464-470, to
EPA in 1986. This submittal included Maine's designated use of
``fishing'' for all surface waters in the state. On July 16, 1986, EPA
approved most of the revised WQS, including the designated uses for
surface waters, without explicit mention of the ``fishing'' designated
use or of the standards' applicability to waters in Indian lands. Maine
did not expressly assert its authority to establish WQS in Indian
waters until its 2009 WQS submittal, and EPA did not expressly
determine that Maine has such authority until February 2015. Therefore,
EPA did not approve Maine's designated use of ``fishing'' to apply in
Indian waters in 1986, and EPA's approval of that use for other waters
in Maine at that time was not applicable to Indian waters in Maine.
    EPA acknowledges the comment that, prior to February 2015, EPA had
not previously taken the position that Maine's designated use of
``fishing'' included a designated use of ``sustenance fishing.'' As
explained herein, it was not until February 2, 2015, that EPA
determined that Maine's WQS were applicable to waters in Indian lands,
so it was not until then that EPA reviewed Maine's ``fishing''
designated use for those waters and concluded that, in light of the
settlement acts, it must include sustenance fishing as applied to
waters in Indian lands.
    EPA disagrees with comments that asserted that EPA could not
approve the ``fishing'' designated use as meaning ``sustenance
fishing'' for waters in Indian lands unless EPA first made a
determination under CWA section 303(c)(4)(B) that the ``fishing''
designated use was inconsistent with the CWA. Because EPA had not
previously approved the ``fishing'' designated use for waters in Indian
lands, EPA had the duty and authority to act on that use in its
February 2015 decision, and was not required to make a determination
under CWA section 303(c)(4)(B) before it could interpret and approve
the use for waters in Indian lands. Additionally, because the term
``fishing'' is ambiguous in Maine's WQS, even if EPA had previously
approved it for all waters in the state, it is reasonable for EPA to
explicitly interpret the use to include sustenance fishing for the
waters in Indian lands in light of the Indian settlement acts.\48\ This
is consistent with EPA's recent actions and positions regarding tribal
fishing rights and water quality standards in the State of
Washington.\49\
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    \48\ See Arkansas v. Oklahoma, 503 U.S. 91, 110 (1992) (holding
that EPA's interpretation of state WQS in the NPDES context is
entitled to ``substantial deference'').
    \49\ See Revision of Certain Federal Water Quality Criteria
Applicable to Washington: 81 FR 85417 (November 28, 2016).
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    In acting on the ``fishing'' designated use for waters in Indian
lands for the first time, it was reasonable and appropriate for EPA to
explicitly interpret and approve the use to include sustenance fishing
for the waters in Indian lands. This interpretation harmonized two
applicable laws: The provision for sustenance fishing contained in the
Indian settlement acts, as explained above in section III.B, and the
CWA. Indeed, where an action required of EPA under the CWA implicates
another federal statute, such as MICSA, EPA must harmonize the two
statutes to the extent possible.\50\ This is consistent with
circumstances where federal Indian laws are implicated and the Indian
canons of statutory construction apply.\51\ Because the Indian
settlement acts provide for sustenance fishing in waters in Indian
lands, and EPA has authority to reasonably interpret state WQS when
taking action on them, EPA necessarily interpreted the ``fishing'' use
as ``sustenance fishing'' for these waters, lest its CWA approval
action contradict and, as a practical matter, effectively limit or
abrogate the Indian settlement acts (a power that would be beyond EPA's
authority).\52\ Accordingly, EPA's interpretation of Maine's
``fishing'' designated use reasonably and appropriately harmonized the
intersecting provisions of the CWA and the Indian settlement acts.
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    \50\ See Nat'l Ass'n of Home Builders v. Defenders of Wildlife,
551 U.S. 644, 664 (2007) (acknowledging EPA's duty to harmonize CWA
and Endangered Species Act to give effect to both statutes where the
Agency has discretion to do so); see also United States v. Borden
Co., 308 U.S. 188, 198 (1939) (``When there are two acts upon the
same subject, the rule is to give effect to both if possible.'').
    \51\ See Penobscot Nation v. Mills, 151 F. Supp. 3d at 213-214
(applying the Indian canons of statutory construction to MIA and
MICSA); see also Penobscot Nation v. Fellencer, 164, F.3d 706, 709
(1st Cir. 1999) (applying Indian cannon to MICSA and citing to
County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 247 (1985)
(``it is well established that treaties should be construed
liberally in favor of the Indians with ambiguous provisions
interpreted for their benefit'')).
    \52\ See Minn. v. Mille Lacs Band of Chippewa Indians, 526 U.S.
172, 202 (1999) (``Congress may abrogate Indian treaty rights, but
it must clearly express its intent to do so.'').
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    Finally, one commenter argued that the settlement acts' provisions
for sustenance fishing are merely exceptions to otherwise applicable
creel limits and have no implications for the WQS that apply to the
waters where the tribes are meant to fish. EPA does not agree with this
narrow interpretation of the relationship between the provisions for
tribal sustenance practices on the one hand and water quality on the
other. Fundamentally, the tribes' ability to take fish for their
sustenance under the settlement acts would be rendered meaningless if
it were not supported under the CWA by water quality sufficient to
ensure that tribal members can safely eat the fish for their own
sustenance.
    When Congress identifies and provides for a particular purpose or
use of specific Indian lands, it is reasonable and supported by
precedent for an agency to consider whether its actions have an impact
on a tribe's exercise of that purpose or use and to ensure through
exercise of its authorities that its actions protect that purpose or
use. For example, the Ninth Circuit Court of Appeals recently
determined that the right of tribes in the State of Washington to fish
for their subsistence in their ``usual and accustomed'' places
necessarily included the right to an adequate supply of fish, despite
the absence of any explicit language in the applicable treaties to that
effect.\53\ Specifically, the Court held that ``the Tribes' right of
access to their usual and accustomed fishing places would be worthless
without harvestable fish.'' \54\ Similarly, it would defeat the purpose
of MIA, MICSA, MSA, and ABMSA for the

tribes in Maine to be deprived of the ability to safely consume fish
from their waters at sustenance levels. Consistent with this case law,
the Department of the Interior provided EPA with a legal opinion which
concludes that ``fundamental, long-standing tenets of federal Indian
law support the interpretation of tribal fishing rights to include the
right to sufficient water quality to effectuate the fishing right.''
\55\ If EPA were to ignore the impact that water quality, and
specifically water quality standards under the CWA, could have on the
tribes' ability to safely engage in their sustenance fishing practices
on their lands, the Agency would be contradicting the clear purpose for
which Congress ratified the settlement acts in Maine and provided for
the establishment of Indian lands in the state. Therefore, it is
incumbent upon EPA when applying the requirements of the CWA to
harmonize those requirements with this Congressional purpose.
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    \53\ United States v. Washington, No. 13-35474, 2016 U.S. App.
Lexis 11709 (9th Cir. June 27, 2016). See also United States v.
Winans, 198 U.S. 371, 384 (1905) (tribe must be allowed to cross
private property to access traditional fishing ground); Kittitas
Reclamation District v. Sunnyside Valley Irrigation District, 763
F.2d 1032, 1033-34 (9th Cir. 1985) (tribe's fishing right protected
by enjoining water withdrawals that would destroy salmon eggs before
they could hatch); Grand Traverse Band of Ottawa and Chippewa
Indians v. Director, Mich. Dept of Nat. Resources, 141 F.3d 635 (6th
Cir. 1989) (treaty right to fish commercially in the Great Lakes
found to include a right to temporary mooring of treaty fishing
vessels at municipal marinas because without such mooring the
Indians could not fish commercially); Colville Confederated Tribes
v. Walton, 647 F.2d 42, 47-48 (9th Cir. 1981) (implying reservation
of water to preserve tribe's replacement fishing grounds); Winters
v. United States, 207 U.S. 564, 576 (1908) (express reservation of
land for reservation impliedly reserved sufficient water from the
river to fulfill the purposes of the reservation); Arizona v.
California, 373 U.S. 546, 598-601 (1963) (creation of reservation
implied intent to reserve sufficient water to satisfy present and
future needs).
    \54\ United States v. Washington, No. 13-35474, 2016 U.S. App.
Lexis 11709 (9th Cir. June 27, 2016). The court also acknowledged
that the fishing clause of the Stevens Treaties could give rise to
other environmental obligations, but that those would need to be
addressed on a case-by-case basis depending on the precise nature of
the action. Id. at *18-19.
    \55\ Letter from Hilary C. Tompkins, Solicitor, Department of
Interior, to Avi S. Garbow, General Counsel, EPA, January 30, 2015,
a copy of which is in the docket supporting this action.
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D. Human Health Criteria for Toxics for Waters in Indian Lands
1. Target Population
    EPA received two comments that it improperly and without
justification identified the tribes as the target population, as
opposed to a highly exposed subpopulation, for the HHC for waters in
Indian lands. On the contrary, EPA's approach is entirely consistent
with EPA regulations and policy, as informed by the settlement acts.
    Pursuant to 40 CFR 131.11(a)(1), water quality criteria must be
adequate to protect the designated uses. Developing HHC to protect the
sustenance fishing designated use in waters in Indian lands necessarily
involves identifying the population exercising that use as the target
population.\56\ The tribes are not a highly exposed or high-consuming
subpopulation in their own lands; they are the general population for
which the federal set-aside of these lands and their waters was
designed.\57\ Treating tribes as the target general population results
in HHC sufficient under the CWA to ensure that the tribes' ability to
exercise the designated use of sustenance fishing, as provided for in
the settlement acts, is not substantially affected or impaired.
Therefore, the tribal population must be the focus of the risk
assessment supporting HHC for the waters to which the sustenance
fishing use applies. To do otherwise risks undermining the purpose for
which Congress established and confirmed the tribes' land base, as
described more fully in section III.B.
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    \56\ One of the commenters, Maine's Attorney General, concedes
as much. Her objection to EPA's approach rests on her assertion that
there is no designated use of sustenance fishing for the waters in
Indian lands. But she recognizes that had the Maine Legislature
adopted proposed legislation for a ``subsistence fishing''
designated use for a portion of the Penobscot River, the adoption of
that use would have protected the subsistence fishers as the target
population for the stretch of the river to which the use applied.
See Comments of Maine's Attorney General at 11.
    \57\ EPA recognizes that tribal members will not be the only
population fishing from some of these waters. On major rivers such
as the Penobscot River, for example, the general population has the
right to pass through the waters in Indian lands. The presence of
some nonmembers fishing on these waters, however, does not change
the fact that the resident population in the Indian lands is made up
of tribal members who expect to fish for their sustenance in the
waters in Indian lands pursuant to the settlement acts.
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    Contrary to the commenters' claims, EPA's 2000 Methodology does not
mandate that the tribes be treated as a highly exposed subpopulation.
EPA's general approach in the 2000 Methodology, and in deriving
national CWA section 304(a) recommended criteria, is for HHC to provide
a high level of protection for the general population, while
recognizing that more highly exposed ``subpopulations'' may face
greater levels of risk.\58\ However, in addition to recommending
protection of the general population based on fish consumption rates
designed to represent ``the general population of fish consumers,'' the
2000 Methodology recommends that states assess whether there might be
more highly exposed subpopulations or ``population groups'' that
require the use of a higher fish consumption rate to protect them as
the ``target population group(s).'' \59\ The 2000 Methodology does not
speak to or expressly envision the unique situation of setting HHC for
waters where there is a tribal sustenance fishing designated use.
Nevertheless, it is entirely consistent with the 2000 Methodology for
EPA to identify the tribes as the target general population for
protection, rather than as a highly exposed subpopulation, and to apply
the 2000 Methodology's recommendations on exposure for the general
population, including the FCR and CRL, to the tribal target population.
---------------------------------------------------------------------------

    \58\ USEPA. 2000. Methodology for Deriving Ambient Water Quality
Criteria for the Protection of Human Health (2000). U.S.
Environmental Protection Agency, Office of Science and Technology,
Washington, DC. EPA 822-B-00-004, pp. 2-1 to 2-3.
    \59\ Id., pp. 4-24 to 4-25.
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2. Wabanaki Study
    EPA received several comments that the FCR of 286 g/day, derived to
support the sustenance fishing use, and used in the calculation of the
promulgated HHC, is too high and not based on sound science. In
particular, commenters asserted that it was improper for EPA to rely on
the Wabanaki Study because it is irrelevant and aspirational. These
commenters instead prefer the use of a 1992 study conducted by McLaren/
Hart--ChemRisk of Portland, Maine (``the 1992 ChemRisk Study'').\60\
EPA disagrees for the following reasons.
---------------------------------------------------------------------------

    \60\ ChemRisk, A Division of McLaren Hart, and HBRS, Inc.,
Consumption of Freshwater Fish by Maine Anglers, as revised, July
24, 1992.
---------------------------------------------------------------------------

    After considering other sources, including the 1992 ChemRisk Study
(see discussion below), EPA derived the FCR from a peer-reviewed
estimate of traditional sustenance fish consumption from the Wabanaki
Study. EPA finds that the Wabanaki Study used a sound methodology (peer
reviewed, written by experts in risk assessment and anthropology), and
contains the best currently available information for the purpose of
deriving an FCR for HHC adequate to protect present day sustenance
fishing for such waters. It is the only local study focused on the
tribal members and areas most heavily used by those members today.
While it relies on daily caloric and protein intake to derive heritage
FCRs, the FCR of 286 g/day is also the best currently available
estimate for contemporary tribal sustenance level fish consumption for
waters where the sustenance fishing designated use applies.
    In addition, EPA consulted with tribal governments to obtain their
views on the suitability of the Wabanaki Study and any additional
relevant information to select a FCR for this final rulemaking. The
tribes represented that the Wabanaki study and corresponding rate of
286 g/day is an appropriate and accurate portrayal of their present day
sustenance fishing lifeway, absent significant improvement in the
availability of anadromous fish species, and EPA gave significant
weight to the tribes' representations.\61\
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    \61\ Indeed, in developing its own 2014 tribal water quality
criteria, the Penobscot Nation used a FCR of 286 g/day. The Nation
explained that it chose the inland non-anadromous total FCR of 286
g/day presented in the Wabanaki Study because, although the
Penobscot lands are in areas that would have historically supported
an inland anadromous diet (with 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.
Penobscot Nation, Department of Natural Resources, Response to
Comments on Draft Water Quality Standards, September 23, 2014, p. 9.

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    As explained in EPA's disapproval and preamble to the proposed
rule, the data from the ChemRisk Study are not suitable as a source for
deriving the FCR for waters in Indian lands in Maine. That study was
not a survey of tribal sustenance fishers in tribal waters. Rather, it
was a statewide recreational angler survey that polled anglers with
state fishing licenses and was not a survey intended to characterize
tribal fish consumption in tribal waters. As explained by tribal
representatives both in comments on Maine's 2012 revisions and in
comments on this rule, and by DEP in its response to comments on the
2012 revisions, tribal members are not necessarily required to get
state licenses to fish and therefore were likely underrepresented in
the survey.\62\
---------------------------------------------------------------------------

    \62\ Id., Exhibit 8, pages 14 and 19; June 20, 2016, Letter from
Chief Brenda Commander, Houlton Band of Maliseet Indians, to Gina
McCarthy, Administrator, EPA, page 15.
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    In addition, EPA disagrees with commenters who assert that there
were no fish advisories or that there were an insignificant number of
river miles covered by fish advisories during the time of the ChemRisk
Study. It is well documented that fish advisories were in place on some
waters in Maine at the time of the ChemRisk Study. As documented by
Maine's Department of Health and Human Services in a 2008 history of
dioxin fish consumption advisories in Maine,\63\ fish advisories were
first issued in Maine on the Androscoggin River in 1985 and on the
Kennebec and Penobscot River in 1987, before the ChemRisk Study survey
was conducted. While relative to the state as a whole this may seem to
be a small portion of river miles that were affected by a fish
consumption advisory, the Penobscot River is a very large portion of
the sustenance fishery for the Penobscot Indian Nation, and it is a
waterbody with a high profile and symbolic significance in the Indian
community.
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    \63\ Smith, Andrew E., and Frohmberg, Eric, Evaluation of the
Health Implications of Levels of Polychlorinated Dibenzo-p-Dioxins
(dioxins) and Polychlorinated Dibenzofurans (furans) in Fish from
Maine Rivers, Maine Department of Health and Human Service, January,
2008, pages 2-3.
---------------------------------------------------------------------------

    Further, as documented by DEP in its response to comments on its
2012 WQS revisions, during the time that the ChemRisk survey was
conducted:

    [P]ublic awareness of historical pollution in industrialized
rivers can be expected to have suppressed fish consumption on a
local basis. The Department is unable to quantify the extent of
suppression due to historical pollution in the major rivers or the
dioxin advisories in place at the time of the ChemRisk study, but