[Federal Register Volume 82, Number 219 (Wednesday, November 15, 2017)]
[Rules and Regulations]
[Pages 52835-52838]
[FR Doc No: 2017-24164]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 39

[Docket No. FAA-2017-0715; Product Identifier 2017-NM-073-AD; Amendment
39-19096; AD 2017-23-02]
RIN 2120-AA64

Airworthiness Directives; The Boeing Company Airplanes

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: We are adopting a new airworthiness directive (AD) for certain
The Boeing Company Model 737-200, -200C, -300, -400, and -500 series
airplanes. This AD was prompted by an evaluation by the design approval
holder (DAH) indicating that the fuselage crown skin panels are subject
to widespread fatigue damage (WFD). This AD requires repetitive
inspections, replacement, and applicable on-condition actions for
certain fuselage crown skin panels. We are issuing this AD to address
the unsafe condition on these products.

DATES: This AD is effective December 20, 2017.
    The Director of the Federal Register approved the incorporation by
reference of a certain publication listed in this AD as of December 20,
2017.

ADDRESSES: For service information identified in this final rule,
contact Boeing Commercial Airplanes, Attention: Contractual & Data
Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA
90740-5600; telephone<PHONE_NUMBER>; Internet https://www.myboeingfleet.com. You may view this referenced service information
at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton,
WA. For information on the availability of this material at the FAA,
call<PHONE_NUMBER>. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-
0715.

Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-
0715; or in person at the Docket Management Facility between 9 a.m. and
5 p.m., Monday through Friday, except Federal holidays. The AD docket
contains this final rule, the regulatory evaluation, any comments
received, and other information. The address for the Docket Office
(phone:<PHONE_NUMBER>) is Docket Management Facility, U.S. Department of
Transportation, Docket Operations, M-30, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT: Jennifer Tsakoumakis, Aerospace
Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount
Boulevard, Lakewood, CA 90712-4137; phone:<PHONE_NUMBER>; fax: 562-627-
5210; email: [email protected].

SUPPLEMENTARY INFORMATION:

Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would apply to certain The Boeing Company
Model 737-200, -200C, -300, -400, and -500 series airplanes. The NPRM
published in the Federal Register on August 10, 2017 (82 FR 37366). The
NPRM was prompted by an evaluation by the DAH indicating that the
fuselage crown skin panels are subject to WFD. The NPRM proposed to
require repetitive inspections, replacement, and applicable on-
condition actions for certain fuselage crown skin panels.
    We are issuing this AD to detect and correct cracking in the
fuselage crown skin panels. Multiple adjacent cracks in the fuselage
crown skin could link up and lead to decompression or loss of
structural integrity of the airplane.

Comments

    We gave the public the opportunity to participate in developing
this final rule. We have considered the comments received.

Support for the NPRM

    Boeing concurred with the NPRM.

Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that accomplishing Supplemental
Type Certificate (STC) ST01219SE does not affect the ability to
accomplish the actions specified in the NPRM.
    We concur with the commenter. We have redesignated paragraph (c) of
the proposed AD as paragraph (c)(1) and added paragraph (c)(2) to this
AD to state that installation of STC ST01219SE does not affect the
ability to accomplish the actions required by this AD. Therefore, for
airplanes on which STC ST01219SE is installed, a ``change in product''
alternative method of compliance (AMOC) approval request is not
necessary to comply with the requirements of 14 CFR 39.17.

Conclusion

    We reviewed the relevant data, considered the comments received,
and determined that air safety and the public interest require adopting
this final rule with the changes described previously and minor
editorial changes. We have determined that these minor changes:
     Are consistent with the intent that was proposed in the
NPRM for correcting the unsafe condition; and
     Do not add any additional burden upon the public than was
already proposed in the NPRM.
    We also determined that these changes will not increase the
economic burden on any operator or increase the scope of this final
rule.

Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1358, dated April
27, 2017. This service information describes procedures for repetitive
inspections, replacement, and applicable on-condition actions for
certain fuselage crown skin panels. This service information is
reasonably available because the interested parties have access to it
through their normal course of business or by the means identified in
the ADDRESSES section.

Costs of Compliance

    We estimate that this AD affects 200 airplanes of U.S. registry. We
estimate the following costs to comply with this AD:

                                                 Estimated Costs
----------------------------------------------------------------------------------------------------------------
                                                                                Cost on U.S.
          Action                   Labor cost           Parts cost      Cost per product          operators
----------------------------------------------------------------------------------------------------------------
Inspection...............  Up to 507 work-hours x                 $0  Up to $43,095 per     Up to $8,619,000 per
                            $85 per hour = $43,095                     inspection cycle.     inspection cycle.
                            per inspection cycle.
Replacement..............  304 work-hours x $85 per           95,000  $120,840 per skin     Up to $24,168,000.
                            hour = $25,840 per skin                    panel.
                            panel.
----------------------------------------------------------------------------------------------------------------

    We have received no definitive data that will enable us to provide
cost estimates for the on-condition actions specified in this AD.

Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to
issue rules on aviation safety. Subtitle I, section 106, describes the
authority of the FAA Administrator. Subtitle VII: Aviation Programs,
describes in more detail the scope of the Agency's authority.
    We are issuing this rulemaking under the authority described in
Subtitle VII, Part A, Subpart III, Section 44701: ``General
requirements.'' Under that section, Congress charges the FAA with
promoting safe flight of civil aircraft in air commerce by prescribing
regulations for practices, methods, and procedures the Administrator
finds necessary for safety in air commerce. This regulation is within
the scope of that authority because it addresses an unsafe condition
that is likely to exist or develop on products identified in this
rulemaking action.
    This AD is issued in accordance with authority delegated by the
Executive Director, Aircraft Certification Service, as authorized by
FAA Order 8000.51C. In accordance with that order, issuance of ADs is
normally a function of the Compliance and Airworthiness Division, but
during this transition period, the Executive Director has delegated the
authority to issue ADs applicable to transport category airplanes to
the Director of the System Oversight Division.

Regulatory Findings

    This AD will not have federalism implications under Executive Order
13132. This AD will not have a substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government.
    For the reasons discussed above, I certify that this AD:
    (1) Is not a ``significant regulatory action'' under Executive
Order 12866,
    (2) Is not a ``significant rule'' under DOT Regulatory Policies and
Procedures (44 FR 11034, February 26, 1979),
    (3) Will not affect intrastate aviation in Alaska, and
    (4) Will not have a significant economic impact, positive or
negative, on a substantial number of small entities under the criteria
of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by
reference, Safety.

Adoption of the Amendment

    Accordingly, under the authority delegated to me by the
Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39--AIRWORTHINESS DIRECTIVES

0
1. The authority citation for part 39 continues to read as follows:

    Authority: 49 U.S.C. 106(g), 40113, 44701.

Sec.  39.13   [Amended]

0
2. The FAA amends Sec.  39.13 by adding the following new airworthiness
directive (AD):

2017-23-02 The Boeing Company: Amendment 39-19096; Docket No. FAA-
2017-0715; Product Identifier 2017-NM-073-AD.

(a) Effective Date

    This AD is effective December 20, 2017.

(b) Affected ADs

    None.

(c) Applicability

    (1) This AD applies to The Boeing Company Model 737-200, -200C,
-300, -400, and -500 series airplanes, certificated in any category,
as identified in Boeing Alert Service Bulletin 737-53A1358, dated
April 27, 2017.
    (2) Installation of Supplemental Type Certificate (STC)
ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/EBD1CEC7B301293E86257CB30045557A?OpenDocument&Highlight=st01219se)
does not affect the ability to accomplish the actions required by
this AD. Therefore, for airplanes on which STC ST01219SE is
installed, a ``change in product'' alternative method of compliance
(AMOC) approval request is not necessary to comply with the
requirements of 14 CFR 39.17.

(d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

(e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval
holder indicating that the fuselage crown skin panels are subject to
widespread fatigue damage. We are issuing this AD to detect and
correct cracking in the fuselage crown skin panels. Multiple
adjacent cracks in the fuselage crown skin could link up and lead to
decompression or loss of structural integrity of the airplane.

(f) Compliance

    Comply with this AD within the compliance times specified,
unless already done.

(g) Required Actions

    Except as required by paragraph (h) of this AD: At the
applicable times specified in paragraph 1.E., ``Compliance,'' of
Boeing Alert Service Bulletin 737-53A1358, dated April 27, 2017, do
all applicable actions identified as ``RC'' (required for
compliance) in, and in accordance with, the Accomplishment
Instructions of Boeing Alert Service Bulletin 737-53A1358, dated
April 27, 2017.

(h) Exceptions to Service Information Specifications

    (1) For purposes of determining compliance with the requirements
of this AD, the phrase ``the effective date of this AD'' may be
substituted for ``the original issue date of this service
bulletin,'' as specified in Boeing Alert Service Bulletin 737-
53A1358, dated April 27, 2017.
    (2) Where Boeing Alert Service Bulletin 737-53A1358, dated April
27, 2017, specifies contacting Boeing, and specifies that action as
RC: This AD requires using a method approved in accordance with the
procedures specified in paragraph (j) of this AD.
    (3) Part 7 of Boeing Alert Service Bulletin 737-53A1358, dated
April 27, 2017, specifies post-modification airworthiness limitation
inspections in compliance with 14 CFR 25.571(a)(3) at the modified
locations to support compliance with 14 CFR 121.1109(c)(2) or
129.109(b)(2). Although Part 7 is identified as RC, this AD does not
require accomplishment of Part 7. As airworthiness limitations,
these inspections are required by maintenance and operational rules.
It is therefore unnecessary to mandate them in this AD. Deviations
from these inspections require FAA approval, but do not require
approval of an alternative method of compliance.

(i) Terminating Action for Repetitive Inspections

    (1) Replacement of a skin panel, in accordance with Part 8 of
the Accomplishment Instructions of Boeing Alert Service Bulletin
737-53A1358, dated April 27, 2017, except as required by paragraph
(h)(2) of this AD, terminates the actions specified in Parts 1, 4,
and 6 of the Accomplishment Instructions of Boeing Alert Service
Bulletin 737-53A1358, dated April 27, 2017, as required by paragraph
(g) of this AD, for that replaced skin panel only. To be acceptable
as terminating action, the replacement may not be done prior to the
applicable time specified in Table 4 of paragraph 1.E.,
``Compliance,'' of Boeing Alert Service Bulletin 737-53A1358, dated
April 27, 2017.
    (2) Completion of a structural repair manual repair to repair
cracking, in accordance with Part 2 of the Accomplishment
Instructions of Boeing Alert Service Bulletin 737-53A1358, dated
April 27, 2017, except as required by paragraph (h)(2) of this AD,
terminates the repetitive inspections specified in Part 1 of the
Accomplishment Instructions of Boeing Alert Service Bulletin 737-
53A1358, dated April 27, 2017, as required by paragraph (g) of this
AD, for that repair location only.
    (3) Completion of a ``Category C repair'' to repair cracking, in
accordance with Part 3 of the Accomplishment Instructions of Boeing
Alert Service Bulletin 737-53A1358, dated April 27, 2017, except as
required by paragraph (h)(2) of this AD, terminates the repetitive
inspections specified in Part 1 of the Accomplishment Instructions
of Boeing Alert Service Bulletin 737-53A1358, dated April 27, 2017,
as required by paragraph (g) of this AD, for that repair location
only.
    (4) Completion of a ``Change Category C Repair to SB Repair,''
in accordance with Part 6 of the Accomplishment Instructions of
Boeing Alert Service Bulletin 737-53A1358, dated April 27, 2017,
except as required by paragraph (h)(2) of this AD, terminates the
inspections specified in Part 4 of the Accomplishment Instructions
of Boeing Alert Service Bulletin 737-53A1358, dated April 27, 2017,
as required by paragraph (g) of this AD, for that repair location
only.

(j) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles ACO Branch, FAA, has the authority
to approve AMOCs for this AD, if requested using the procedures
found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your
request to your principal inspector or local Flight Standards
District Office, as appropriate. If sending information directly to
the manager of the certification office, send it to the attention of
the person identified in paragraph (k) of this AD. Information may
be emailed to: [email protected].
    (2) Before using any approved AMOC, notify your appropriate
principal inspector, or lacking a principal inspector, the manager
of the local flight standards district office/certificate holding
district office.
    (3) An AMOC that provides an acceptable level of safety may be
used for any repair, modification, or alteration required by this AD
if it is approved by the Boeing Commercial Airplanes Organization
Designation Authorization (ODA) that has been authorized by the
Manager, Los Angeles ACO Branch, to make those findings. To be
approved, the repair method, modification deviation, or alteration
deviation must meet the certification basis of the airplane, and the
approval must specifically refer to this AD.
    (4) Except as required by paragraphs (h)(2) and (h)(3) of this
AD: For service information that contains steps that are labeled as
RC, the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) of this AD
apply.
    (i) The steps labeled as RC, including substeps under an RC step
and any figures identified in an RC step, must be done to comply
with the AD. If a step or substep is labeled ``RC Exempt,'' then the
RC requirement is removed from that step or substep. An AMOC is
required for any deviations to RC steps, including substeps and
identified figures.
    (ii) Steps not labeled as RC may be deviated from using accepted
methods in accordance with the operator's maintenance or inspection
program without obtaining approval of an AMOC, provided the RC
steps, including substeps and identified figures, can still be done
as specified, and the airplane can be put back in an airworthy
condition.

(k) Related Information

    For more information about this AD, contact Jennifer
Tsakoumakis, Aerospace Engineer, Airframe Section, FAA, Los Angeles
ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137;
phone:<PHONE_NUMBER>; fax:<PHONE_NUMBER>; email:
[email protected].

(l) Material Incorporated by Reference

    (1) The Director of the Federal Register approved the
incorporation by reference (IBR) of the service information listed
in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
    (2) You must use this service information as applicable to do
the actions required by this AD, unless the AD specifies otherwise.
    (i) Boeing Alert Service Bulletin 737-53A1358, dated April 27,
2017.
    (ii) Reserved.
    (3) For service information identified in this AD, contact
Boeing Commercial Airplanes, Attention: Contractual & Data Services
(C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-
5600; telephone<PHONE_NUMBER>; Internet https://www.myboeingfleet.com.
    (4) You may view this service information at the FAA, Transport
Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information
on the availability of this material at the FAA, call<PHONE_NUMBER>.
    (5) You may view this service information that is incorporated
by reference at the National Archives and Records

Administration (NARA). For information on the availability of this
material at NARA, call<PHONE_NUMBER>, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    Issued in Renton, Washington, on October 27, 2017.
Jeffrey E. Duven,
Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2017-24164 Filed 11-14-17; 8:45 am]
BILLING CODE 4910-13-P


believes that the ChemRisk (Ebert et al.) estimates of fish
consumption for rivers and streams as well as the inclusive `all
waters' categories are likely to have been affected to some
degree.\64\
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    \64\ January 14, 2013, Letter from Patricia Aho, DEP to Curt
Spalding, EPA, regarding ``USEPA Review of P.L. 2011, Ch. 194 and
revised 06-096 CMR 584'', Exhibit 8, pages 20-21.
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3. Cancer Risk Level
    With respect to the cancer risk management value used in deriving
the HHC of 10-6, one commenter noted that this value was
unduly protective of public health while another implied the Agency
could adopt a more protective risk management level, and several
supported EPA's use of 10-6. In promulgating HHC for the
tribes in Maine, EPA incorporated an excess cancer risk level of
10-6 as the appropriate target level for two reasons. First,
it is consistent with Maine DEP Rule 06-096, Chapter 584, which EPA
approved for waters in Indian lands on February 2, 2015, and which
specifies that water quality criteria for carcinogens must be based on
a 10-6 CRL.\65\ Second, it is consistent with EPA guidance
that states, ``For deriving CWA section 304(a) criteria or promulgating
water quality criteria for states and tribes under Section 303(c) based
on the 2000 Human Health Methodology, EPA intends to use the
10-6 risk level, which the Agency believes reflects an
appropriate risk for the general population.'' \66\ As explained above,
EPA considers the tribes to be the general target population for waters
in Indian lands. In promulgating HHC that correspond to an excess
cancer risk level of 10-6 for tribes in Maine, not only is
EPA acting consistent with both EPA guidance and Maine's existing rule,
but EPA is providing the tribes engaged in sustenance fishing in waters
in Indian lands with an equivalent level of cancer risk protection as
is afforded to the general population in Maine outside of waters in
Indian lands.
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    \65\ 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.
    \66\ 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, p. 2-6.
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4. Trophic Level Specific Fish Consumption Rates
    Since the Wabanaki Study presented estimates of the total amount of
fish and aquatic organisms consumed but not the amount consumed from
each trophic level, for the purpose of developing HHC for the Maine
tribes, EPA assumed that Maine tribes consume the same relative
proportion of fish and aquatic organisms from the different trophic
levels 2 through 4 as is consumed by the adult U.S. population. As
identified in the 2015 criteria update, the relative percent of the
total fish consumption rate for trophic levels 2 through 4 for the
adult U.S. population amounts to 36%, 40%, and 24%.\67\ Accordingly,
EPA adjusted the 286 g/day total tribal fish consumption rate by these
same percentages and arrived at trophic-specific fish consumption rates
of 103 g/day (trophic level 2), 114 g/day (trophic level 3), and 68.6
g/day (trophic level 4). These trophic specific fish consumption rates
were thus used in deriving the HHC for those compounds for which the
2015 criteria update included trophic level specific BAFs. For
compounds where, in 2015, EPA estimated BAFs from laboratory-measured
BCFs and therefore derived a single pollutant-specific BAF for all
trophic levels, and where EPA's existing 304(a) recommended human
health criteria for certain pollutants still incorporate a single BCF
and those pollutants are included in this final rule, EPA derived the
HHC using a total fish consumption rate of 286 g/day.
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    \67\ USEPA. 2014. Estimated Fish Consumption Rates for the U.S.
Population and Selected Subpopulations (NHANES 2003-2010). EPA-820-
R-14-002. https://www.epa.gov/sites/production/files/2015-01/documents/fish-consumption-rates-2014.pdf.
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    The Penobscot Nation requested EPA use a slightly different
weighting scheme when refining the fish consumption rate based on the
trophic levels of the fish and shellfish species they consume. While
EPA recommends the use of local data relevant to the population of
interest whenever possible in deriving human health criteria, such data
must be from a sound scientific study before it can be utilized. The
Penobscot Nation did not provided adequate information to support a
different trophic level weighting scheme. See Topic 5 in the RTC
document for a more detailed response.
5. Geographic Extent of Waters To Which the HHC Apply
    The HHC contained in the rule are designed to protect the
designated use of sustenance fishing as exercised by the tribes in
Maine. The HHC thus apply to waters where that designated use is
approved. EPA approved a sustenance fishing designated use in two
general categories of waters: (1) Waters in Indian lands, and (2)
waters outside Indian lands where the sustenance fishing right reserved
in MIA section

6207(4) applies.\68\ The first category, ``waters in Indian lands,''
covers waters within the tribes' reservations and trust lands as
provided for under the settlement acts. The second category applies in
the limited circumstances where it is determined that a Southern
Tribe's sustenance fishing right reserved in MIA section 6207(4)
extends to a waterbody outside of its reservation as provided for under
the settlement acts. As explained below, this situation currently
exists in only one waterbody, a clearly delineated stretch of the
Penobscot River.
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    \68\ For ``waters in Indian lands,'' this final rule promulgates
HHC as well as six other WQS (narrative and numeric bacteria
criteria for the protection of primary contact recreation and
shellfishing; ammonia criteria for protection of aquatic life in
fresh waters; provisions that ensure that WQS apply to HHC even if
they are naturally occurring; a mixing zone policy; a pH criterion
for fresh waters; and tidal temperature criteria). For the second
category of waters, where there is a sustenance fishing designated
use outside of waters in Indian lands, the rule promulgates only the
HHC. This response focuses on the HHC because the HHC apply to the
broadest set of tribal-related waters and because the comments
addressing the geographical scope of the rule are largely framed in
terms of concerns about the HHC.
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    The outer bounds of waters that may fall within the two categories
of the rule are based on the settlement acts and are thereby generally
identifiable. The rule, however, does not identify the specific
boundaries of each waterbody or portion thereof to which the HHC apply.
Whether a specific waterbody falls within one of these categories will
depend on the status of such water under applicable federal and state
law. The status of such a waterbody may therefore be determined as a
result of litigation or other legal developments regarding that
specific waterbody. The two general categories of waters to which the
HHC apply, however, will remain constant.
    Three commenters asserted that this approach is overly broad and
vague. EPA disagrees. Here, EPA has clearly described the specific
categories of waters to which this rule applies, which flow directly
from and are bounded by the express provisions of the settlement acts.
The purpose of the rule is to establish WQS that address EPA's
disapprovals and necessity determination and adequately protect
applicable designated uses. It is both reasonable and appropriate, and
consistent with prior practice under the CWA, for EPA to promulgate
these WQS without a final adjudication or determination of the precise
boundaries of each specific waterbody that falls within each category,
so long as the WQS protect the uses and clearly apply only to waters
subject to those uses. As described below, the extent of waters in
Indian lands is largely established under the settlement acts and
subsequent trust conveyances that have occurred under the terms of
those acts. But there are isolated disputes and one pending lawsuit
regarding the boundaries of Indian lands and the geographic extent of
tribal sustenance fishing rights. EPA's approach is designed to be
responsive to the potential that these disputes could result in
clarifications of the particular boundaries of the disputed waters,
while maintaining protection of the tribes' sustenance fishing use.\69\
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    \69\ It is important to note that EPA has expressly answered the
question of who has jurisdiction over all the waters involved in
this matter, irrespective of which category they fall under or which
use(s) and criteria apply. EPA did so in its February 2015 decision
when it determined that the state has jurisdiction to set WQS over
all waterbodies in Maine, including those within tribal reservations
and trust lands. EPA is also determining that the HHC at issue will
apply only where designated use of sustenance fishing applies. EPA
is not, however, making any determinations in this rulemaking on the
narrower technical question regarding the full extent of precise
waters to which that use, and thus the HHC, apply.
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a. Adequate Notice
    Although this rulemaking does not identify the exact boundaries of
each waterbody or portion thereof covered by the rule, it nevertheless
provides adequate notice to potentially regulated parties because the
categories are clearly described, and waters that could reasonably fall
within these two categories are either precisely described in the
settlement acts or, in circumstances where there are ongoing disputes
or uncertainties, located in limited areas in Maine representing a
small fraction of all waters within the state. In fact, any
uncertainties as to the scope of waters in Indian lands largely pertain
to particular stretches of the Penobscot and St. Croix Rivers. EPA
anticipates that any existing uncertainty will be addressed by the
current litigation regarding the Main Stem of the Penobscot River and
DOI's work with the Passamaquoddy Tribe to determine the status of the
relevant stretch of the St. Croix River.
    The first category--``waters in Indian lands''--covers waters
within a tribe's reservation or trust lands. The tribes' trust lands
are all the result of modern conveyances recorded after the 1980
settlements, the boundaries of which are described in the deeds for
those parcels. Although there are ongoing disputes over the extent of
some of the reservation lands, the Indian settlement acts identify the
outer bounds of what could reasonably be identified as reservation
land. In the Economic Analysis conducted for this rulemaking, EPA took
a conservative approach and identified all discharges for which there
is any reasonable potential that they discharge to waters in Indian
lands or their tributaries. In doing so, EPA identified a total of only
33 facilities, a small subset of the 478 Maine Pollutant Discharge
Elimination System (MEPDES) permitted dischargers in the state.
    One commenter expressed concern that the boundaries of the
sustenance fishing designated use as it applies to the tribes' trust
lands may expand if any of the tribes exercise what remaining authority
they may have under the settlement acts to purchase and take more land
into trust outside the reservations. However, EPA did not intend for
its approval and disapproval decisions on WQS for waters in Indian
lands, or for this rule, to apply to waters that may be part of after-
acquired trust lands. EPA's promulgation of HHC to address the
disapprovals is thus limited to waters in trust lands as of February 2,
2015, and waters in the Southern Tribes' reservations. EPA's
promulgation of HHC in accordance with the Administrator's
determination is likewise limited. The sustenance fishing designated
use and appropriate HHC would not apply to any waters in after-acquired
trust lands until such time as the state or EPA took further action
under the CWA. This step would give interested parties an opportunity
to comment on that action. EPA also notes that where the settlement
acts have not already specifically identified parcels that qualify to
be taken into trust, they clearly provide for the state to receive
notice of any trust acquisition.\70\
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    \70\ 30 MRSA 6205-A(1); 30 MRSA 7204.
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    The second category is quite narrow, limited to waterbodies outside
of Indian lands where the Southern Tribes' sustenance fishing right
reserved in MIA section 6207(4) applies. Currently, the Main Stem of
the Penobscot River is the only waterbody in the state that has been
adjudicated to be a waterbody outside of Indian lands to which a tribe,
the Penobscot Nation, has a right to sustenance fish based in MIA.\71\
The ``Main Stem'' addressed by the court in the Mills litigation is
clearly identified as ``a portion of the Penobscot River and stretches
from Indian Island north to the confluence of the East and West
Branches of the Penobscot River.'' \72\ Significantly, the court in
Mills concluded that the Penobscot Nation has a sustenance fishery
reservation, under MIA section 6207, in ``the waters

adjacent to its island reservation,'' under MIA section 6203.\73\
Accordingly, in scenarios like the one addressed by the court in Mills,
waters that fall under this second category will likely share a
geographic nexus with the Southern Tribes' reservations.
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    \71\ Penobscot Nation v. Mills, 151 F. Supp. 3d at 222-223.
    \72\ Id. at 186.
    \73\ Id. at 221-222.
---------------------------------------------------------------------------

    This second category thus represents a limited universe of
potential waters that fall outside the existing waters in Indian lands
only to the extent the fishing right reserved in MIA section 6207(4)
extends beyond the reservation of a Southern Tribe under MIA section
6203 under the reasoning of the U.S. District Court in the Mills
litigation. In the event the law of the case in the Mills litigation
changes, it is also possible that no waters would fall within this
second category. Accordingly, the waters covered by this rule are at
most the waters in Indian lands and the limited additional waters where
a Southern Tribe has a right to sustenance fish, which will likely
share a geographic nexus with the tribes' reservations.
b. General Approach
    Under the CWA, it is not uncommon for a state, authorized tribe, or
EPA to take an approach, when promulgating WQS (i.e., designated uses,
water quality criteria, and antidegradation policies), of identifying a
category of waters to which the WQS apply, where additional information
will need to be gathered before the implementing agency can determine
whether such WQS applies to any specific waterbody. For these WQS, any
uncertainties regarding applicability to a specific waterbody are
appropriately resolved as the standards are implemented through various
actions under the CWA, such as NPDES permitting and listing of impaired
waters under section 303(d) of the CWA, among others.
    An example of this approach already in effect in Maine involves the
state's criteria for dissolved oxygen (DO). Maine's longstanding DO
criteria for Class B and C waters include generally applicable criteria
as well as more protective criteria that apply only to fish spawning
areas in the colder months.\74\ The DO criteria do not list each
specific fish spawning area in Class B or C waters, nor do the more
general classifications of fresh waters at 38 M.R.S. 467 and 468.
Rather, Maine must determine whether a spawning area is implicated on a
permit-by-permit basis.\75\ Similarly, Maine's WQS contain certain
natural conditions provisions that alter the way in which pollutants
may be treated for WQS purposes if they are naturally occurring.\76\
The waters in which such conditions occur are not identified in the WQS
themselves but rather must be determined on a case-by-case basis.
---------------------------------------------------------------------------

    \74\ 38 M.R.S. sections 465.3.B and 465.4.B, respectively. Note
that as part of this rulemaking, EPA is promulgating dissolved
oxygen criteria for Class A waters, also with specific criteria that
apply to fish spawning areas.
    \75\ 06-096-585 Code of Maine Rules, Chapter 584, Surface Water
Quality Criteria for Toxic Pollutants.
    \76\ This rule includes provisions to ensure that these natural
conditions WQS are not applied to HHC.
---------------------------------------------------------------------------

    There are numerous examples from other states identifying general
categories of waters to which certain standards apply. For example, the
State of Wisconsin has several narrative water quality criteria that
apply to ``wetlands,'' defined as ``an area where water is at, near or
above the land surface long enough to be capable of supporting aquatic
or hydrophytic vegetation and which has soils indicative of wet
conditions.'' \77\ Florida has promulgated numeric interpretations of
its narrative nutrient criteria that apply to ``streams,'' defined as
``a predominantly fresh surface waterbody with perennial flow in a
defined channel with banks during typical climatic and hydrologic
conditions for its region within the state,'' but excluding certain
non-perennial stream segments, ditches, canals, and other conveyances
that have various characteristics as defined in the regulation.\78\
Whether a specific discharge implicates a waterbody that falls within
these general categories, and thus whether the associated water quality
criteria apply, is left to the implementing agency to determine by
applying the case-specific facts to the general category definition.
---------------------------------------------------------------------------

    \77\ Wis. Admin. Code NR section 103.03 (2016). For additional
examples of states with WQS for ``wetlands,'' see 5 Colo. Code Regs.
section 1002-31.11 (LexisNexis 2016); Iowa Admin. Code r. 567-61.3
(2016); Minn. R. 7050.0186 (2016)l 117 Neb. Admin. Code section 7-
001 (2015); 15A N.C. Admin. Code 02B.0231 (2016); Ohio Admin Code
3475-1-50.
    \78\ Fla. Admin. Code. Ann. r. 62-302.200 (2016).
---------------------------------------------------------------------------

    EPA is taking a similar approach here, by defining two general
categories of waters covered by this rule. The determination of whether
a specific waterbody falls within one of these categories will be made,
in the first instance, by the implementing (e.g., permitting)
authority. Determining whether a waterbody is within one of the two
categories covered by EPA's rule will require application of the facts
relevant to that particular waterbody to the definition of the
category. However, disputes regarding the extent of waters which may be
subject to this rule are primarily limited to stretches of two
waterbodies, as described above. Therefore, EPA anticipates that the
case-by-case identification of whether a waterbody is covered by this
rule will be straight-forward in most instances.
E. Other Water Quality Standards
1. Mixing Zone Policy for Waters in Indian Lands
    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. EPA's authority to
promulgate a mixing zone policy, and to prohibit its use for
bioaccumulative pollutants, derives from section 303(c) of the CWA.
While states are not required to adopt mixing zone policies, when a
state includes a mixing zone policy in its water quality standards, the
policy is subject to EPA's review and approval or disapproval. 40 CFR
131.13. Adoption of a mixing zone policy is necessary for a mixing zone
to be authorized in the issuance of a CWA discharge permit. EPA
disapproved Maine's mixing zone policy for waters in Indian lands
because it did not meet the requirements of the CWA. Recognizing that
Maine intended to authorize mixing zones as part of its water quality
standards, EPA, pursuant to CWA section 303(c)(4)(A), is now
promulgating a mixing zone policy that includes protections that were
missing from Maine's policy that EPA disapproved. EPA has determined
that a ban on a mixing zone for bioaccumulating pollutants is
reasonable and appropriate for the reasons discussed below, and nothing
in CWA section 303(c) or EPA's implementing regulations constrains
EPA's legal authority to do so.
    EPA guidance has long cautioned states and tribes against mixing
zone policies that allow mixing zones for discharges of bioaccumulative
pollutants, since they may cause significant ecological and human
health risks such that the designated use of the waterbody as a whole
may not be protected.79 80 81 EPA's WQS Handbook notes that
this is particularly the case where mixing zones may encroach on

areas used for fish harvesting. The waters in Indian lands, to which
this mixing zone policy will apply, not only are used for fish
harvesting but have a designated use of sustenance fishing. By their
very nature, bioaccumulative pollutants are those that accumulate in
fish and shellfish and other organisms. Moreover, as EPA has explained
elsewhere, the effects of such pollutants are not short term, nor are
they limited to a localized zone of initial dilution.\82\ Since the
effects could be persistent and occur well beyond the mixing zone,
there is no assurance that all designated uses would be protected. EPA
is particularly concerned about the potential adverse effects of such a
mixing zone on the sustenance fishing use for those reasons. EPA also
notes that the state has not in the past granted mixing zones for
bioaccumulative pollutants, and neither the state nor the regulated
community in Maine have raised a concern in their comments about EPA's
proposal that mixing zones cannot be authorized for bioaccumulative
pollutants. Therefore, EPA's final rule includes the prohibition on a
mixing zone for bioaccumulative pollutants.
---------------------------------------------------------------------------

    \79\ USEPA. 1991. Technical Support Document for Water Quality-
based Toxics Control. US Environmental Protection Agency, Office of
Water, Washington, DC. Section 2.2.2, p. 34; Section 4.3.1, p. 71;
Section 4.3.4, p. 72; Section 4.6.2, p. 87. EPA 505-290-001.
    \80\ Final Rule to Amend the Final Water Quality Guidance for
the Great Lakes System to Prohibit Mixing Zones for Bioaccumulative
Chemicals of Concern, 65 FR 67638, 67641-42 (November 13, 2000); 40
CFR part 132.
    \81\ USEPA. 2014. Water Quality Standards Handbook, Chapter 5 at
5-8. EPA 820-B-14-008.
    \82\ Id.
---------------------------------------------------------------------------

2. Bacteria Criteria for Waters in Indian Lands
a. Recreational Bacteria Criteria
    EPA received one comment in opposition to the proposed recreational
bacteria criteria. Maine DEP objected to EPA's inclusion of wildlife
sources in the scope of the bacteria criteria for several reasons. It
argued that inclusion of wildlife sources is beyond the scope of the
CWA, which DEP asserts is only concerned with human pollution, and that
E.coli are used only as an indicator of human sewage. It also asserted
that EPA incorrectly ``construed `animal sources' of bacteria from
studies as equivalent to naturally occurring `wildlife sources' in the
proposed rule''; that EPA cited to only one study in EPA's 2012
Recreational Water Quality Criteria (RWQC) that links potential human
health risks with non-human sources of fecal contamination; and that
because bacteria from natural sources are likely to be ``temporal,''
removing a use (recreation in and on the water) simply due to a high
level of E. coli where the bacteria source is of natural origins ``is,
at best, unwise.'' \83\ None of these comments provides a basis for
excluding wildlife sources from EPA's rule, which is based on the 2012
recommended RWQC.
---------------------------------------------------------------------------

    \83\ The commenter also refers to the 1997 Guidance
(``Establishing Site Specific Aquatic Life Criteria Equal to Natural
Background'') ``cited by EPA,'' and states that it ``stands for
possible reevaluation of uses based on known background
concentrations not establishing criteria which necessitates
regulation of naturally occurring bacteria. . . .'' EPA did not cite
to that guidance in the context of the proposed bacteria criteria,
and it has no bearing on EPA's decision to include wildlife sources
in the scope of the criteria.
---------------------------------------------------------------------------

    First, the CWA does not limit EPA to consideration of human causes
of pollution when developing water quality criteria protective of human
health. CWA section 502(23) defines ``pathogen indicator'' to mean ``a
substance that indicates the potential for human infectious disease''
with no limitation on source. EPA's recommended RWQC identify levels of
fecal indicator bacteria (which include fecal coliforms, E.coli,
enterococci or Enterococcus spp.) that will be protective of human
health. Those pathogen indicators are not limited to pathogens coming
only from human sources.\84\
---------------------------------------------------------------------------

    \84\ USEPA. 2012. Recreational Water Quality Criteria. U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
Office of Water 820-F-12-058, pages 1-9.
---------------------------------------------------------------------------

    Second, E. coli are typically found in the digestive systems of
warm-blooded animals, and can be used to indicate the presence of fecal
material in surface waters regardless of their origin, whether from
humans, domestic animals, or wildlife. The literature provides many
studies documenting wildlife as sources of E. coli.85 86 87
For decades, EPA's regulatory premise concerning recreational water
quality has been that nonhuman-derived human pathogens, including those
from wildlife, in fecally contaminated waters present a potential risk
to human health.\88\ EPA has investigated sources of fecal
contamination in its Review of Published Studies to Characterize
Relative Risks from Different Sources of Fecal Contamination in
Recreational Waters \89\ and Review of Zoonotic Pathogens in Ambient
Waters,\90\ and determined that both human and animal feces, including
feces from wildlife, in recreational waters do pose potential risks to
human health. EPA again confirmed, in the development of the 2012 RWQC,
that wildlife can carry both zoonotic pathogens capable of causing
illness in humans and fecal indicator bacteria, and these microbes can
be transmitted to surface waters.\91\
---------------------------------------------------------------------------

    \85\ Levesque, B., P. Brousseau, P. Simard, E. Dewailly, M.
Meisels, D. Ramsay, and J. Joly. 1993. Impact of the ring-billed
gull (Larus delawarenesis) on the microbiological quality of
recreational water. Applied and Environmental Microbiology 59 (4)
1128-1230.
    \86\ Center for Watershed Protection. 1999. Microbes and urban
watersheds: concentrations, sources, and pathways. Watershed
Protection Techniques. 3(1):554-565.
    \87\ Makino. S., H. Kobori, H. Asakura, M. Watarai, T.
Shirahata, T. Ikeda, K. Takeshi and T. Tsukamoto. 2000. Detection
and characterization of Shiga toxin-producing Escherichia coli from
seagulls. Epidemiol. Infect. 125: 55-61.
    \88\ USEPA. 2009. Review of Published Studies to Characterize
Relative Risks from Different Sources of Fecal Contamination in
Recreational Water. U.S. Environmental Protection Agency, Office of
Water, Health and Ecological Criteria Division. Washington, DC. EPA
822-R-09-001.
    \89\ Id.
    \90\ USEPA. 2009. Review of Zoonotic Pathogens in Ambient
Waters. U.S. Environmental Protection Agency, Office of Water,
Health and Ecological Criteria Division. Washington, DC. EPA-822-R-
09-002.
    \91\ USEPA. 2012. Recreational Water Quality Criteria. U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
Office of Water 820-F-12-058.
---------------------------------------------------------------------------

    Contrary to the commenter's assertion, EPA cited more than one
study in the RWQC that links potential human health risks with non-
human sources of fecal contamination.\92\ Furthermore, in the
development of the RWQC, EPA did not, as the commenter claimed, equate
bacteria from domestic animal sources to those of naturally occurring
wildlife. On the contrary, EPA's research for the development of the
RWQC clearly recognized that there is a risk differential between human
and non-human animal sources, as well as among non-human animal
sources.\93\ Nevertheless, because zoonotic pathogens are present in
animal (including wildlife) fecal matter, creating a potential risk
from recreational exposure to zoonotic pathogens in animal-impacted
waters, EPA found no scientific basis on which to exclude wildlife
altogether from the scope of the RWQC, nor has the commenter provided
any scientific basis for excluding wildlife sources altogether from the
scope of the EPA's rule for waters in Indian lands in Maine.
---------------------------------------------------------------------------

    \92\ Id., pages 34-38.
    \93\ Id., pages 36-38.
---------------------------------------------------------------------------

    Maine DEP commented that because bacteria from natural sources are
likely to be ``temporal,'' removing a use (recreation in and on the
water) simply due to a high level of E. coli where the bacteria source
is of natural origins ``is, at best, unwise.'' This circumstance is not
a justification for excluding wildlife sources altogether from the
scope of recreational bacteria criteria. EPA recognizes that health
risks associated with exposure to waters impacted by animal sources can
vary substantially, depending on the animal source. In some cases,
these risks can be similar to exposure to human fecal contamination,
and in other cases, the risk is lower.94 95 96 97 In
situations with

non-human sources of fecal contamination, the state may choose to
conduct sanitary surveys, epidemiological studies and/or a Quantitative
Microbial Risk Assessment (QMRA). If sanitary surveys, water quality
information, or health studies show the sources of fecal contamination
to be non-human, and the indicator densities reflect a different risk
profile, then the state has the option to develop and adopt site-
specific alternative recreational bacteria criteria to reflect the
local environmental conditions and human exposure patterns.\98\ For
waterbodies where non-human fecal sources predominate, QMRA can be used
to determine a different enterococci or E. coli criteria value that is
equally protective as the criteria EPA is promulgating today.\99\
---------------------------------------------------------------------------

    \94\ Schoen, M.E. and N.J. Ashbolt. 2010. Assessing pathogen
risk to swimmers at non-sewage impacted recreational beaches.
Environmental Science and Technology 44(7): 2286-2291.
    \95\ Soller, J.A., M.E. Schoen, T. Bartrand, J.E. Ravenscroft,
N.J. Ashbolt. 2010. Estimated human health risks from exposure too
recreational waters impacted by human and non-human sources of
faecal contamination. Water Research 44: 4674-4691.
    \96\ Soller, J.A., T. Bartrand, J. Ravenscroft, M. Molina, G.
Whelan, M. Schoen, N. Ashbolt. 2015. Estimated health risks from
recreational exposures to stormwater runoff containing animal faecal
material. Environmental Modelling and Software 72: 21-32.
    \97\ USEPA. 2010. Quantitative Microbial Risk Assessment to
Estimate Illness in Freshwater Impacted by Agricultural Animals
Sources of Fecal Contamination. U.S. Environmental Protection
Agency, Office of Water, Washington, DC. EPA 822-R-10-005.
    \98\ USEPA. 2012. Recreational Water Quality Criteria. U.S.
Environmental Protection Agency, Office of Water, Washington, DC.
Office of Water 820-F-12-058. Section 6.2.
    \99\ Id., Section 6.2.2.
---------------------------------------------------------------------------

    Maine DEP also objected to EPA's proposal to apply the bacteria
criteria year round, and requested that EPA exclude the period of
October 1-May 14, similar to Maine's disapproved criteria. The state
asserted that EPA had not demonstrated that recreational activities
occur in this time frame. Other commenters supported the year round
criteria. EPA disagrees with the state's characterization of the
record. First, the activities cited by EPA in the proposal were merely
examples of readily available information that recreation does occur
during the period October 1 to May 14. The record also included
information from one tribal member confirming that activities in and on
the Penobscot River occur whenever the waters are ice free. In its
comment supporting the proposed criteria, the Penobscot Nation
specifically noted that the tribe engages in year round activities in
and on the Penobscot River, including for paddling, fishing, and
ceremonial uses. EPA had invited comment on whether a seasonal term
shorter than October 1-May 14, during which the recreational bacteria
criteria would not apply, would still adequately protect recreational
uses. EPA received no comments that provided specific information that
could support the establishment of a seasonal timeframe in which the
absence of bacteria criteria would be protective of uses. Therefore,
EPA has retained the year round applicability in the final rule.

IV. Economic Analysis

    EPA is not required under CWA section 303(c) or its implementing
regulations at 40 CFR part 131 to conduct an economic analysis
regarding implementation of these EPA-promulgated WQS. For the purpose
of transparency, EPA conducted a cost analysis for the WQS in this
final rule. Potential economic effects of this rule are presented here.
    These WQS may serve as a basis for development of NPDES permit
limits. Maine has NPDES permitting authority and retains considerable
discretion in implementing standards. EPA evaluated the potential costs
to NPDES dischargers associated with state implementation of EPA's
final criteria. This analysis is documented in ``Final Economic
Analysis for Promulgation of Certain Federal Water Quality Criteria
Applicable to Maine,'' which can be found in the docket for this
rulemaking.
    Any NPDES-permitted facility that discharges pollutants for which
the revised WQS are more stringent than the previously applicable WQS
could potentially incur increased compliance costs. The types of
affected facilities could include industrial facilities and POTWs
discharging wastewater to surface waters (i.e., point sources). EPA did
not attribute compliance with water quality-based effluent limitations
(WQBELs) reflective of Maine's existing (hereafter ``baseline'') WQS to
the final rule. Once in compliance with WQBELs reflective of baseline
criteria, EPA expects that dischargers will continue to use the same
types of controls to come into compliance with any revised WQBELs
reflective of the more stringent WQS.
    The following final criteria are not expected to result in
incremental costs to permitted dischargers: pH, temperature, ammonia,
and all but one HHC (for waters in Indian lands); phenol (for state
waters outside Indian lands); and dissolved oxygen (for all state
waters). As described below, the cost analysis identifies potential
costs of compliance with one HHC (bis(2-ethylhexyl)phthalate),
bacteria, and the final mixing zone policy for waters in Indian lands.
    EPA did not fully evaluate the potential for costs to nonpoint
sources. Very little data were available to assess the potential for
the rule to result in WQS exceedances attributable to nonpoint sources.
It is difficult to model and evaluate the potential cost impacts of
this final rule to nonpoint sources because they are intermittent,
variable, and occur under hydrologic or climatic conditions associated
with precipitation events. Finally, legacy contamination (e.g., in
sediment) may be a source of ongoing loading. Atmospheric deposition
may also contribute loadings of the pollutants of concern (e.g.,
mercury). EPA did not estimate sediment remediation costs, or air
pollution control costs, for this analysis.

A. Identifying Affected Entities

    EPA identified 33 facilities (major and non-major) that discharge
to waters in Indian lands or their tributaries, two facilities that
discharge phenol to other state waters, and 26 facilities that
discharge to Class A waters throughout the state. EPA identified 16
point source facilities that could incur additional costs as a result
of this final rule. Of these potentially affected facilities, eight are
major dischargers and eight are minor dischargers. Two are industrial
dischargers and the remaining 14 are publicly owned treatment works
(POTWs). EPA did not include general permit facilities in its analysis
because data for such facilities are limited. EPA evaluated all of the
potentially affected facilities.
    EPA does not agree with the comment that its economic analysis
(``EA'') was deficient because uncertainty--including with respect to
the geographic scope of the rule's applicability--constrained the
Agency's ability to assess the economic impacts of the rule. Although
the commenter is correct that the geographic extent of the waters
covered by this promulgation could change due to litigation or other
legal developments regarding Indian land status, EPA used an inclusive
approach in its analysis that accounted for all facilities that could
reasonably fall within the two general categories of waters to which
the HHC may apply. If the geographic scope of waters to which the HHC
apply is smaller, then fewer facilities will be affected by the rule
and costs will be lower.

B. Method for Estimating Costs

    For the 16 facilities that may incur costs, EPA evaluated existing
baseline permit conditions and the potential to exceed new effluent
limits based on the

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

C. Results

1. Costs From Final Human Health Criteria Applicable to Waters in
Indian Lands
    Based on this approach, EPA identified one facility that has
reasonable potential to exceed permit effluent limits based on one
final criterion (bis(2-ethylhexyl)phthalate). EPA calculated a
projected effluent limitation based on the same procedures utilized by
Maine in its NPDES permitting practices. To estimate potential costs to
this facility from meeting the projected effluent limits, EPA
considered source controls, end-of-pipe treatments, and alternative
compliance mechanisms (e.g. variances). For this provision, EPA
estimated total annual compliance costs of $28,000 (for source
controls) to $43,000 (for end-of-pipe treatments).
2. Costs From Final Recreational Bacteria Criteria for Waters in Indian
Lands
    EPA does not expect the final recreational bacteria criteria to
result in any new treatment processes being added to facilities, but
does expect that 14 facilities with existing limitations for bacteria
will need to operate their disinfection systems year-round, extending
treatments for an additional 226 days per year. EPA estimated the costs
of chemicals and monitoring during this extended period based on the
facilities' effluent flow rate, type of treatment, and monitoring
costs. For this provision, EPA estimated total annual compliance costs
of $185,000 to $705,000.
3. Costs From Final Mixing Zone Policy
    EPA identified one facility with an existing permit that
establishes a thermal mixing zone that may affect waters in Indian
lands. It is unknown whether reductions in thermal loads will be
necessary to reduce the mixing zone to a size and configuration that
would meet the new mixing zone policy at this facility; possible
outcomes include the need for facility-specific studies, revisions to
permit conditions that could require recalculating thermal discharge
limits, or changes in facility processes or operations to reduce the
thermal load. To estimate the costs of this provision, EPA used as
lower-bound the cost to conduct a study to characterize the
discharger's existing thermal plume and support evaluation of whether
the current mixing zone complies with the new mixing zone policy
($1,000, annual cost for 20 years) and as upper-bound the potential
cost impacts for installing new cooling towers at the facility
($273,000, annualized over 30 years at a 3 percent discount rate).
4. Total Costs
    Table 3 summarizes the estimated point source compliance costs from
the final WQS. EPA estimates that the total annual compliance costs for
all provisions may be in the range of $214,000 to $1.0 million.

       Table 3--Summary of Estimated Point Source Compliance Costs
------------------------------------------------------------------------
                                                        Annualized costs
                      Final WQS                           (thousands;
                                                           2014$) \1\
------------------------------------------------------------------------
Human health criteria for waters in Indian lands.....            $28-$43
Recreational bacteria criteria for waters in Indian              185-705
 lands...............................................
Mixing zone policy...................................              1-273
                                                      ------------------
    Total............................................          214-1,021
------------------------------------------------------------------------
\1\ One-time costs are annualized over 20 years (30 years in the case of
  cooling towers under the mixing zone policy) using a 3% discount rate.

V. Statutory and Executive Order Reviews

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

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket.
    EPA prepared an analysis of the potential costs and benefits
associated with this action. This analysis is summarized in section IV
of the preamble and is available in the docket.

B. Paperwork Reduction Act

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

C. Regulatory Flexibility Act

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. This
action will not impose any requirements on small entities. Small
entities, such as small businesses or small governmental jurisdictions,
are not directly regulated by this rule. This rule will thus not impose
any requirements on small entities.
    EPA-promulgated standards are implemented through various water
quality control programs including the NPDES program, which limits
discharges to navigable waters except in compliance with an NPDES
permit. The CWA requires that all NPDES permits include any limits on
discharges that are necessary to meet applicable WQS. Thus, under the
CWA, EPA's promulgation of WQS establishes standards that the state
implements through the NPDES permit process. The state has discretion
in developing discharge limits, as needed to meet the standards. As a
result of this action, the

State of Maine will need to issue permits that include limitations on
discharges necessary to comply with the standards established in the
final rule. In doing so, the state will have a number of approaches
available to it associated with permit writing. While Maine's
implementation of the rule may ultimately result in new or revised
permit conditions for some dischargers, including small entities, EPA's
action, by itself, does not directly impose any requirements on small
entities. Any impact from EPA's action on small entities would
therefore only be indirect because the requirements of this rule are
not self-implementing.

D. Unfunded Mandates Reform Act

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

E. Executive Order 13132

    This action does not have federalism implications. It will not have
substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government. This rule
does not alter Maine's considerable discretion in implementing these
WQS, nor will it preclude Maine from adopting WQS in the future that
EPA concludes meet the requirements of the CWA, which will eliminate
the need for federal standards. Thus, Executive Order 13132 does not
apply to this action.

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

    This action has tribal implications, however, it would neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. Therefore, consultation is
not required under the Executive Order. In the state of Maine, there
are four federally recognized Indian tribes represented by five tribal
governments. As a result of the unique jurisdictional provisions of the
Maine Indian Claims Settlement Act, as described above, the state has
jurisdiction for setting water quality standards for all waters in
Indian lands in Maine. This rule will have no effect on that
jurisdictional arrangement. This rule would affect federally recognized
Indian tribes in Maine because the water quality standards will apply
to all waters in Indian lands. Some will also apply to waters outside
of Indian lands where the sustenance fishing designated use established
by 30 M.R.S. 6207(4) and (9) applies. Finally, many of the final
criteria for such waters are protective of the sustenance fishing
designated use, which is based in the Indian settlement acts in Maine.
    The EPA consulted with tribal officials under the EPA Policy on
Consultation and Coordination with Indian Tribes early in the process
of developing this rule to permit them to have meaningful and timely
input into its development. Summaries of those consultations are
provided in the following documents: ``Maine WQS Tribal Leaders
Consultation 4-27-16;'' ``Maine WQS Technical Consultation 4-11-16;''
and ``Summary of Tribal Consultations Regarding Water Quality Standards
Applicable to Waters in Indian Lands within the State of Maine,'' which
are available in the docket for this rulemaking.

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

    The EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that the EPA has reason to believe may disproportionately affect
children, per the definition of ``covered regulatory action'' in
section 2-202 of the Executive Order. This action is not subject to
Executive Order 13045 because it does not concern an environmental
health risk or safety risk that may disproportionately affect children.

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

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution or use of energy.

I. National Technology Transfer and Advancement Act of 1995

    This action does not involve technical standards.

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

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

K. Congressional Review Act (CRA)

    This action is subject to the CRA, and EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 131

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

    Dated: December 8, 2016.
Gina McCarthy,
Administrator.

    For the reasons set forth in the preamble, EPA amends 40 CFR part
131 as follows:

PART 131--WATER QUALITY STANDARDS

0
1. The authority citation for part 131 continues to read as follows:

    Authority: 33 U.S.C. 1251 et seq.

Subpart D--Federally Promulgated Water Quality Standards

0
2. Add Sec.  131.43 to read as follows:

Sec.  131.43   Maine.

    (a) Human health criteria for toxics for waters in Indian lands and
for Waters outside of Indian lands where the sustenance fishing
designated use established by 30 M.R.S. 6207(4) and (9) applies. The
criteria for toxic pollutants for the protection of human health are
set forth in the following table 1:

                                         Table 1--Human Health Criteria
----------------------------------------------------------------------------------------------------------------
                                                                 Water and
                Chemical name                     CAS No.        organisms         Organisms only ([mu]g/L)
                                                                 ([mu]g/L)
----------------------------------------------------------------------------------------------------------------
1. 1,1,2,2-Tetrachloroethane................         79-34-5            0.09  0.2
2. 1,1,2-Trichloroethane....................         79-00-5            0.31  0.66
3. 1,1-Dichloroethylene.....................         75-35-4             300  1000
4. 1,2,4,5-Tetrachlorobenzene...............         95-94-3           0.002  0.002
5. 1,2,4-Trichlorobenzene...................        120-82-1          0.0056  0.0056
6. 1,2-Dichlorobenzene......................         95-50-1             200  300
7. 1,2-Dichloropropane......................         78-87-5  ..............  2.3
8. 1,2-Diphenylhydrazine....................        122-66-7            0.01  0.02
9. 1,2-Trans-Dichloroethylene...............        156-60-5              90  300
10. 1,3-Dichlorobenzene.....................        541-73-1               1  1
11. 1,3-Dichloropropene.....................        542-75-6            0.21  0.87
12. 1,4-Dichlorobenzene.....................        106-46-7  ..............  70
13. 2,4,5-Trichlorophenol...................         95-95-4              40  40
14. 2,4,6-Trichlorophenol...................         88-06-2            0.20  0.21
15. 2,4-Dichlorophenol......................        120-83-2               4  4
16. 2,4-Dimethylphenol......................        105-67-9              80  200
17. 2,4-Dinitrophenol.......................         51-28-5               9  30
18. 2,4-Dinitrotoluene......................        121-14-2           0.036  0.13
19. 2-Chloronaphthalene.....................         91-58-7              90  90
20. 2-Chlorophenol..........................         95-57-8              20  60
21. 2-Methyl-4,6-Dinitrophenol..............        534-52-1               1  2
22. 3,3'-Dichlorobenzidine..................         91-94-1          0.0096  0.011
23. 4,4'-DDD................................         72-54-8         9.3E-06  9.3E-06
24. 4,4'-DDE................................         72-55-9         1.3E-06  1.3E-06
25. 4,4'-DDT................................         50-29-3         2.2E-06  2.2E-06
26. Acenaphthene............................         83-32-9               6  7
27. Acrolein................................        107-02-8               3  ..................................
28. Aldrin..................................        309-00-2         5.8E-08  5.8E-08
29. alpha-BHC...............................        319-84-6         2.9E-05  2.9E-05
30. alpha-Endosulfan........................        959-98-8               2  2
31. Anthracene..............................        120-12-7              30  30
32. Antimony................................       7440-36-0               5  40
33. Benzene.................................         71-43-2            0.40  1.2
34. Benzo (a) Anthracene....................         56-55-3         9.8E-05  9.8E-05
35. Benzo (a) Pyrene........................         50-32-8         9.8E-06  9.8E-06
36. Benzo (b) Fluoranthene..................        205-99-2         9.8E-05  9.8E-05
37. Benzo (k) Fluoranthene..................        207-08-9         0.00098  0.00098
38. beta-BHC................................        319-85-7          0.0010  0.0011
39. beta-Endosulfan.........................      33213-65-9               3  3
40. Bis(2-Chloro-1-Methylethyl) Ether.......        108-60-1             100  300
41. Bis(2-Chloroethyl) Ether................        111-44-4           0.026  0.16
42. Bis(2-Ethylhexyl) Phthalate.............        117-81-7           0.028  0.028
43. Bromoform...............................         75-25-2             4.0  8.7
44. Butylbenzyl Phthalate...................         85-68-7          0.0077  0.0077
45. Carbon Tetrachloride....................         56-23-5             0.2  0.3
46. Chlordane...............................         57-74-9         2.4E-05  2.4E-05
47. Chlorobenzene...........................        108-90-7              40  60
48. Chlorodibromomethane....................        124-48-1  ..............  1.5
49. Chrysene................................        218-01-9  ..............  0.0098
50. Cyanide.................................         57-12-5               4  30
51. Dibenzo (a,h) Anthracene................         53-70-3         9.8E-06  9.8E-06
52. Dichlorobromomethane....................         75-27-4  ..............  2.0
53. Dieldrin................................         60-57-1         9.3E-08  9.3E-08
54. Diethyl Phthalate.......................         84-66-2              50  50
55. Dimethyl Phthalate......................        131-11-3             100  100
56. Di-n-Butyl Phthalate....................         84-74-2               2  2
57. Dinitrophenols..........................      25550-58-7              10  70
58. Endosulfan Sulfate......................       1031-07-8               3  3
59. Endrin..................................         72-20-8           0.002  0.002
60. Endrin Aldehyde.........................       7421-93-4            0.09  0.09
61. Ethylbenzene............................        100-41-4             8.9  9.5
62. Fluoranthene............................        206-44-0               1  1
63. Fluorene................................         86-73-7               5  5
64. gamma-BHC (Lindane).....................         58-89-9            0.33  ..................................
65. Heptachlor..............................         76-44-8         4.4E-07  4.4E-07
66. Heptachlor Epoxide......................       1024-57-3         2.4E-06  2.4E-06
67. Hexachlorobenzene.......................        118-74-1         5.9E-06  5.9E-06
68. Hexachlorobutadiene.....................         87-68-3          0.0007  0.0007
69. Hexachlorocyclohexane-Technical.........        608-73-1         0.00073  0.00076
70. Hexachlorocyclopentadiene...............         77-47-4             0.3  0.3

71. Hexachloroethane........................         67-72-1            0.01  0.01
72. Indeno (1,2,3-cd) Pyrene................        193-39-5         9.8E-05  9.8E-05
73. Isophorone..............................         78-59-1              28  140
74. Methoxychlor............................         72-43-5           0.001  ..................................
75. Methylene Chloride......................         75-09-2  ..............  90
76. Methylmercury...........................      22967-92-6  ..............  0.02 \a\ (mg/kg)
77. Nickel..................................       7440-02-0              20  20
78. Nitrobenzene............................         98-95-3              10  40
79. Nitrosamines............................  ..............         0.00075  0.032
80. N-Nitrosodibutylamine...................        924-16-3         0.00438  0.0152
81. N-Nitrosodiethylamine...................         55-18-5         0.00075  0.032
82. N-Nitrosodimethylamine..................         62-75-9         0.00065  0.21
83. N-Nitrosodi-n-propylamine...............        621-64-7          0.0042  0.035
84. N-Nitrosodiphenylamine..................         86-30-6            0.40  0.42
85. N-Nitrosopyrrolidine....................        930-55-2  ..............  2.4
86. Pentachlorobenzene......................        608-93-5           0.008  0.008
87. Pentachlorophenol.......................         87-86-5           0.003  0.003
88. Phenol..................................        108-95-2           3,000  20,000
89. Polychlorinated Biphenyls (PCBs)........       1336-36-3       \b\ 4E-06  4E-06 \b\
90. Pyrene..................................        129-00-0               2  2
91. Selenium................................       7782-49-2              20  60
92. Toluene.................................        108-88-3              24  39
93. Toxaphene...............................       8001-35-2         5.3E-05  5.3E-05
94. Trichloroethylene.......................         79-01-6             0.3  0.5
95. Vinyl Chloride..........................         75-01-4           0.019  0.12
96. Zinc....................................       7440-66-6             300  400
----------------------------------------------------------------------------------------------------------------
\a\ This criterion is expressed as the fish tissue concentration of methylmercury (mg methylmercury/kg fish) and
  applies equally to fresh and marine waters.
\b\ This criterion applies to total PCBs (i.e., the sum of all congener or isomer or homolog or Aroclor
  analyses).

    (b) Bacteria criteria for waters in Indian lands. (1) The bacteria
content of Class AA and Class A waters shall be as naturally occurs,
and the minimum number of Escherichia coli bacteria shall not exceed a
geometric mean of 100 colony-forming units per 100 milliliters (cfu/100
ml) in any 30-day interval; nor shall 320 cfu/100 ml be exceeded more
than 10% of the time in any 30-day interval.
    (2) In Class B, Class C, and Class GPA waters, the number of
Escherichia coli bacteria shall not exceed a geometric mean of 100
colony forming units per 100 milliliters (cfu/100 ml) in any 30- day
interval; nor shall 320 cfu/100 ml be exceeded more than 10% of the
time in any 30-day interval.
    (3) The bacteria content of Class SA waters shall be as naturally
occurs, and the number of Enterococcus spp. bacteria shall not exceed a
geometric mean of 30 cfu/100 ml in any 30-day interval, nor shall 110
cfu/100 ml be exceeded more than 10% of the time in any 30-day
interval.
    (4) In Class SA shellfish harvesting areas, the 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. The
Director of the Federal Register approves this incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may
obtain a copy from the U.S. Food and Drug Administration Center for
Food Safety and Applied Nutrition, Shellfish and Aquaculture Policy
Branch, 5100 Paint Branch Parkway (HFS-325), College Park, MD 20740 or
http://www.fda.gov/Food/GuidanceRegulation/FederalStateFoodPrograms/ucm2006754.htm. You may inspect a copy at the U.S. Environmental
Protection Agency Docket Center Reading Room, William Jefferson Clinton
West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC
20004,<PHONE_NUMBER>, or at the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call<PHONE_NUMBER>, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    (5) In Class SB and SC waters, the number of Enterococcus spp.
bacteria shall not exceed a geometric mean of 30 cfu/100 ml in any 30-
day interval, nor shall 110 cfu/100 ml be exceeded more than 10% of the
time in any 30-day interval.
    (c) Ammonia criteria for fresh waters in Indian lands. (1) The one-
hour average concentration of total ammonia nitrogen (in mg TAN/L)
shall not exceed, more than once every three years, the criterion
maximum concentration (i.e., the ``CMC,'' or ``acute criterion'') set
forth in Tables 2 and 3 of this section.
    (2) The thirty-day average concentration of total ammonia nitrogen
(in mg TAN/L) shall not exceed, more than once every three years, the
criterion continuous concentration (i.e., the ``CCC,'' or ``chronic
criterion'') set forth in Table 4.
    (3) In addition, the highest four-day average within the same 30-
day period as in (2) shall not exceed 2.5 times the CCC, more than once
every three years.

[GRAPHIC] [TIFF OMITTED] TR19DE16.007

[GRAPHIC] [TIFF OMITTED] TR19DE16.008

[GRAPHIC] [TIFF OMITTED] TR19DE16.009

    (d) pH Criteria for fresh waters in Indian lands. The pH of fresh
waters shall fall within the range of 6.5 to 8.5.
    (e) Temperature criteria for tidal waters in Indian lands. (1) The
maximum acceptable cumulative increase in the weekly average
temperature resulting from all artificial sources is 1 [deg]C (1.8
[deg]F) during all seasons of the year, provided that the summer
maximum is not exceeded.
    (i) Weekly average temperature increase shall be compared to
baseline thermal conditions and shall be calculated using the daily
maxima averaged over a 7-day period.
    (ii) Baseline thermal conditions shall be measured at or modeled
from a site where there is no artificial thermal addition from any
source, and which is in reasonable proximity to the thermal discharge
(within 5 miles), and which has similar hydrography to that of the
receiving waters at the discharge.
    (2) Natural temperature cycles characteristic of the waterbody
segment shall not be altered in amplitude or frequency.
    (3) During the summer months (for the period from May 15 through
September 30), water temperatures shall not exceed a weekly average
summer maximum threshold of 18 [deg]C (64.4 [deg]F) (calculated using
the daily maxima averaged over a 7-day period).
    (f) Natural conditions provisions for waters in Indian lands. (1)
The provision in Title 38 of Maine Revised Statutes 464(4.C) which
reads: ``Where natural conditions, including, but not limited to,
marshes, bogs and abnormal concentrations of wildlife cause the
dissolved oxygen or other water quality criteria to fall below the
minimum standards specified in section 465, 465-A and 465-B, those
waters shall not be considered to be failing to attain their
classification because of those natural conditions,'' does not apply to
water quality criteria intended to protect human health.
    (2) The provision in Title 38 of Maine Revised Statutes 420(2.A)
which reads ``Except as naturally occurs or as provided in paragraphs B
and C, the board shall regulate toxic substances in the surface waters
of the State at the levels set forth in federal water quality criteria
as established by the United States Environmental Protection Agency
pursuant to the Federal Water Pollution Control Act, Public Law 92-500,
Section 304(a), as amended,'' does not apply to water quality criteria
intended to protect human health.
    (g) Mixing zone policy for waters in Indian lands. (1) Establishing
a mixing zone. (i) The Department of Environmental Protection
(``department'') may establish a mixing zone for any discharge at the
time of application for a waste discharge license if all of the
requirements set forth in paragraphs (g)(2) and (3) of this section are
satisfied. The department shall attach a description of the mixing zone
as a condition of a license issued for that discharge. After
opportunity for a hearing in accordance with 38 MRS section 345-A, the
department may establish by order a mixing zone with respect to any
discharge for which a license has been issued pursuant to section 414
or for which an exemption has been granted by virtue of 38 MRS section
413, subsection 2.
    (ii) The purpose of a mixing zone is to allow a reasonable
opportunity for dilution, diffusion, or mixture of pollutants with the
receiving waters such that an applicable criterion may be exceeded
within a defined area of the waterbody while still protecting the
designated use of the waterbody as a whole. In determining the extent
of any mixing zone to be established under this section, the department
will require from the applicant information concerning the nature and
rate of the discharge; the nature and rate of existing discharges to
the waterway; the size of the waterway and the rate of flow therein;
any relevant seasonal, climatic, tidal, and natural variations in such
size, flow, nature, and rate; the uses of the waterways that could be
affected by the discharge, and such other and further evidence as in
the department's judgment will enable it to establish a reasonable
mixing zone for such discharge. An order establishing a mixing zone may
provide that the extent thereof varies in order to take into account
seasonal, climatic, tidal, and natural variations in the size and flow
of, and the nature and rate of, discharges to the waterway.
    (2) Mixing zone information requirements. At a minimum, any request
for a mixing zone must:
    (i) Describe the amount of dilution occurring at the boundaries of
the proposed mixing zone and the size, shape, and location of the area
of mixing, including the manner in which diffusion and dispersion
occur;
    (ii) Define the location at which discharge-induced mixing ceases;
    (iii) Document the substrate character and geomorphology within the
mixing zone;
    (iv) Document background water quality concentrations;
    (v) Address the following factors;
    (A) Whether adjacent mixing zones overlap;
    (B) Whether organisms would be attracted to the area of mixing as a
result of the effluent character; and
    (C) Whether the habitat supports endemic or naturally occurring
species.
    (vi) Provide all information necessary to demonstrate whether the
requirements in paragraph (g)(3) of this section are satisfied.
    (3) Mixing zone requirements. (i) Mixing zones shall be established
consistent with the methodologies in Sections 4.3 and 4.4 of the
``Technical Support Document for Water Quality-based Toxics Control''
EPA/505/2-90-001, dated March 1991.
    (ii) The mixing zone demonstration shall be based on the assumption
that a pollutant does not degrade within the proposed mixing zone,
unless:
    (A) Scientifically valid field studies or other relevant
information demonstrate that degradation of the pollutant is expected
to occur under the full range of environmental conditions expected to
be encountered; and
    (B) Scientifically valid field studies or other relevant
information address other factors that affect the level of pollutants
in the water column including, but not limited to, resuspension of
sediments, chemical speciation, and biological and chemical
transformation.
    (iii) Water quality within an authorized mixing zone is allowed to
exceed chronic water quality criteria for those parameters approved by
the department. Acute water quality criteria may be exceeded for such
parameters within the zone of initial dilution inside the mixing zone.
Acute criteria shall be met as close to the point of discharge as
practicably attainable. Water quality criteria shall not be violated
outside of the boundary of a mixing zone as a result of the discharge
for which the mixing zone was authorized.
    (iv) Mixing zones shall be as small as practicable. The
concentrations of pollutants present shall be minimized and shall
reflect the best practicable engineering design of the outfall to
maximize initial mixing. Mixing zones shall not be authorized for
bioaccumulative pollutants (i.e., chemicals for which the
bioconcentration factors (BCF) or bioaccumulation factors (BAF) are
greater than 1,000) or bacteria.
    (v) In addition to the requirements above, the department may
approve a mixing zone only if the mixing zone:
    (A) Is sized and located to ensure that there will be a continuous
zone of passage that protects migrating, free-swimming, and drifting
organisms;
    (B) Will not result in thermal shock or loss of cold water habitat
or otherwise

interfere with biological communities or populations of indigenous
species;
    (C) Is not likely to jeopardize the continued existence of any
endangered or threatened species listed under section 4 of the
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.) or
result in the destruction or adverse modification of such species'
critical habitat;
    (D) Will not extend to drinking water intakes and sources;
    (E) Will not otherwise interfere with the designated or existing
uses of the receiving water or downstream waters;
    (F) Will not promote undesirable aquatic life or result in a
dominance of nuisance species;
    (G) Will not endanger critical areas such as breeding and spawning
grounds, habitat for state-listed threatened or endangered species,
areas with sensitive biota, shellfish beds, fisheries, and recreational
areas;
    (H) Will not contain pollutant concentrations that are lethal to
mobile, migrating, and drifting organisms passing through the mixing
zone;
    (I) Will not contain pollutant concentrations that may cause
significant human health risks considering likely pathways of exposure;
    (J) Will not result in an overlap with another mixing zone;
    (K) Will not attract aquatic life;
    (L) Will not result in a shore-hugging plume; and
    (M) Is free from:
    (1) Substances that settle to form objectionable deposits;
    (2) Floating debris, oil, scum, and other matter in concentrations
that form nuisances; and
    (3) Objectionable color, odor, taste, or turbidity.
    (h) Dissolved oxygen criteria for class A waters throughout the
State of Maine, including in Indian lands. The dissolved oxygen content
of Class A waters shall not be less than 7 ppm (7 mg/L) or 75% of
saturation, whichever is higher, year-round. For the period from
October 1 through May 14, in fish spawning areas, the 7-day mean
dissolved oxygen concentration shall not be less than 9.5 ppm (9.5 mg/
L), and the 1-day minimum dissolved oxygen concentration shall not be
less than 8 ppm (8.0 mg/L).
    (i) Waiver or modification of protection and improvement laws for
waters throughout the State of Maine, including in Indian lands. For
all waters in Maine, the provisions in Title 38 of Maine Revised
Statutes 363-D do not apply to state or federal water quality standards
applicable to waters in Maine, including designated uses, criteria to
protect existing and designated uses, and antidegradation policies.
    (j) Phenol criterion for the protection of human health for Maine
waters outside of Indian lands. The phenol criterion to protect human
health for the consumption of water and organisms is 4000 micrograms
per liter.

[FR Doc. 2016-30331 Filed 12-16-16; 8:45 am]
 BILLING CODE 6560-50-P