AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) proposes to amend the federal regulations to withdraw certain human health criteria applicable to waters in Washington because Washington adopted, and the EPA approved, human health criteria that the EPA determined are protective of Washington's designated uses for its waters. The EPA is providing an opportunity for public comment on this proposed withdrawal of certain federally promulgated human health criteria. The withdrawal will enable Washington to implement its EPA-approved human health criteria, submitted on August 1, 2016, and approved on May 10, 2019, as applicable criteria for Clean Water Act (CWA or the Act) purposes.

DATES:

Comments must be received on or before October 7, 2019.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-HQ-OW-2015-0174, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/​dockets/​commenting-epa-dockets.

The EPA is offering two public hearings so that interested parties may also provide oral comments on this proposed rulemaking. For more details on the public hearings and to register to attend the hearings, please visit https://www.epa.gov/​wqs-tech/​water-quality-standards-regulations-washington.

FOR FURTHER INFORMATION CONTACT:

Erica Fleisig, Office of Water, Standards and Health Protection Division (4305T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-1057; email address: fleisig.erica@epa.gov.

SUPPLEMENTARY INFORMATION:

This proposed rule is organized as follows:

I. General Information

Does this action apply to me?

II. Background

A. What are the applicable federal statutory and regulatory requirements?

B. What are the applicable federal water quality criteria that the EPA is proposing to withdraw?

III. Statutory and Executive Order Reviews

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

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

C. Paperwork Reduction Act (PRA)

D. Regulatory Flexibility Act (RFA)

E. Unfunded Mandates Reform Act (UMRA)

F. Executive Order 13132: Federalism

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

J. National Technology Transfer and Advancement Act of 1995

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

I. General Information

Does this action apply to me?

This proposed action is proposing to withdraw certain federal human health criteria that are no longer needed due to the EPA's approval of corresponding state human health criteria on May 10, 2019. Entities discharging in Washington waters, citizens, as well as the state of Washington may be interested in this rulemaking, as after the completion of this rulemaking Washington's EPA-approved human health criteria, rather than the federal human health criteria, will be the applicable water quality standards in Washington waters for CWA purposes. If you have questions regarding the applicability of this action to a particular entity, consult the person identified in the preceding FOR FURTHER INFORMATION CONTACT section.

II. Background

A. What are the applicable federal statutory and regulatory requirements?

Consistent with the CWA, the EPA's water quality standards (WQS) program assigns to states and authorized tribes the primary authority for adopting WQS.^[1] After states adopt WQS, they must be submitted to the EPA for review and action in accordance with the CWA. The Act authorizes the EPA to promulgate federal WQS following the EPA's disapproval of state WQS or an Administrator's determination that new or revised WQS are “necessary to meet the requirements of the Act.” ^[2]

On September 14, 2015, the EPA proposed a federal rule to establish updated human health criteria in Washington based on an Administrator's determination that new or revised WQS were necessary to meet the requirements of the Act. Specifically, in its 2015 proposed rulemaking, the EPA considered data representing regional and local fish consumption that reflected consumption levels much higher than the National Toxics Rule (NTR) fish consumption rate of 6.5 grams/day, and accordingly “determined that the federal human health criteria in the NTR as applied to Washington no longer protect the relevant designated uses of Washington's waters.” ^[3] To address the Administrator's determination pursuant to its section 303(c) authority, the EPA's proposed rulemaking established human health criteria using a fish consumption rate of 175 grams/day.^[4] As explained in the EPA's May 10, 2019, letter, the EPA also used all of the inputs from the EPA's recently updated 2015 CWA section 304(a) recommendations to calculate the proposed federal criteria.^[5]

Following the EPA's 2015 proposed rulemaking, on August 1, 2016, Washington submitted human health criteria for the EPA's review.^[6] Washington's criteria were based on a fish consumption rate of 175 grams/day and incorporated most of the components of the EPA's updated 2015 CWA section 304(a) recommendations.^[7] By using a fish consumption rate of 175 grams/day which is consistent with the EPA's proposed rulemaking, Washington's human health criteria addressed the basis for the EPA's 2015 Administrator's determination—that it is necessary to adopt new or revised human health criteria based on a higher fish consumption rate.

For the reasons explained in the EPA's 2016 disapproval letter and final federal rule, the EPA partially disapproved certain human health criteria that Washington submitted to the EPA.^[8] The EPA's final federal rule was issued concurrent with its partial disapproval letter.^[9] In explaining the rationale underlying the partial disapproval of Washington's August 1, 2016, submittal, the EPA “agree[d] with Washington's decision to derive the human health criteria using a FCR of 175 g/day,” noting that that value was consistent with the EPA's final federal rule,^[10] however the EPA disagreed with the risk management decisions the State made during the development of its human health criteria and its decision not to incorporate all components of the updated 2015 CWA section 304(a) recommendations.^[11]

Although the EPA promulgated human health criteria for Washington in the NTR, and subsequently in November 2016, the EPA prefers that states maintain primary responsibility and establish their own WQS. In response to a February 21, 2017, petition from several entities asking the EPA to reconsider the partial disapproval of Washington's August 2016 human health criteria,^[12] the EPA issued a letter on August 3, 2018 stating its intent to reconsider its partial disapproval of Washington's human health criteria and its subsequent promulgation of federal criteria.^[13] After a thorough review of the State's 2016 submittal and applicable provisions of the CWA, implementing regulations and longstanding EPA guidance, on May 10, 2019, the EPA reconsidered its partial disapproval of Washington's human health criteria and approved all but two of the criteria that the EPA previously disapproved.^[14]

As provided in 40 CFR 131.21(c), federally promulgated WQS that are more stringent than EPA-approved state WQS remain applicable for purposes of the CWA until the EPA withdraws the federal standards. Accordingly, the EPA is proposing to amend the federal regulations to withdraw those federally promulgated human health criteria for which the EPA has approved Washington's criteria and is providing an opportunity for public comment on this proposed action.

The EPA's proposal to withdraw federal criteria following approval of state criteria is consistent with the federal and state roles contemplated by the CWA. Consistent with the cooperative federalism structure of the CWA, once the EPA approves state WQS addressing the same pollutants for which the EPA has promulgated federal WQS, it is incumbent on the EPA to withdraw the federal WQS to enable the EPA-approved state WQS to become the applicable WQS for CWA purposes. That is what the EPA is proposing to do in this proposed rulemaking. This proposal is consistent with the EPA's withdrawal of other federally promulgated WQS following the EPA's approval of state-adopted WQS.^[15] Further, although the state of Washington opposes the EPA withdrawing the 2016 federal human health criteria, the State remains free to promulgate the federal standards into state law if it so chooses.^[16]

Shortly before taking its action to approve Washington's human health criteria, the EPA received several letters expressing concerns about the EPA revising or repealing the federal criteria and the EPA's authority under the CWA to “propose new standards” for a state.^[17] As described herein, the EPA reconsidered the human health criteria that Washington submitted to the EPA in 2016 and approved the majority of those criteria. In light of that approval, the EPA proposes to amend federal regulations to withdraw the federal criteria the EPA previously promulgated for Washington. Thus, in this proposed rulemaking, the EPA is not proposing to promulgate any new or revised federal criteria for Washington. The EPA's authority to promulgate new or revised federal criteria is not at issue in this proposal to withdraw the federal criteria.

B. What are the applicable federal water quality criteria that the EPA is proposing to withdraw?

This action proposes to amend federal regulations to withdraw all federal human health criteria promulgated for Washington in November 2016 at 40 CFR 131.45,^[18] with the exception of criteria for arsenic, methylmercury, and bis(2-chloro-1-methylethyl) ether. For arsenic, on May 10, 2019, the EPA reaffirmed its November 2016 disapproval of the two criteria Washington submitted for arsenic (water + organism and organism only), and therefore the federal arsenic criteria for Washington at 40 CFR 131.45 will remain in place.^[19] For methylmercury and bis(2-chloro-1-methylethyl) ether, Washington did not submit criteria for those pollutants and therefore the federally promulgated criteria are the only criteria in effect for those pollutants in the State. Although the EPA is proposing to maintain the federally promulgated criteria for these pollutants, the EPA is also soliciting comment on whether to withdraw the federally promulgated criteria for methylmercury and bis(2-chloro-1-methylethyl) ether.

1. Washington Human Health Criteria That the EPA Approved on May 10, 2019

On May 10, 2019, the EPA revised its disapproval of 141 of Washington's human health criteria and approved those criteria. In addition, the EPA approved four criteria for two pollutants (thallium and 2,3,7,8-TCDD [dioxin]) that the EPA previously deferred action on in November 2016.^[20]

Because Washington now has 145 additional human health criteria approved by the EPA for CWA purposes, the EPA has determined that the 141 corresponding federally promulgated human health criteria are no longer needed in Washington. As noted in the EPA's May 10, 2019, action, the EPA determined upon reconsideration that Washington's 2016 human health criteria are scientifically sound and protective of the applicable designated uses in the state.^[21] More information on the EPA's action to approve Washington's human health criteria upon reconsideration, including the EPA's approval letter and associated Technical Support Document, can be accessed at https://www.epa.gov/​wqs-tech/​water-quality-standards-regulations-washington and in the docket for this proposed rulemaking.

As explained above, the EPA seeks public comment before withdrawing the federally promulgated criteria. Although the EPA has determined that these state criteria are scientifically sound and protective of the applicable designated uses for waters in the state and otherwise meet the requirements of the CWA and EPA's implementing regulations at 40 CFR 131, the EPA recognizes that many of Washington's human health criteria are less stringent than the EPA's federally promulgated criteria which are based on the EPA's CWA section 304(a) criteria (see Table 1). However, as explained in the EPA's May 10, 2019, approval and Technical Support Document, the EPA's CWA section 304(a) criteria are national recommendations and states retain discretion to adopt different criteria, that may be less stringent, if the state's criteria are based on sound science and protect the designated use. In issuing the May 10, 2019, approval, the EPA determined that Washington's human health criteria meet the requirements of the CWA and the EPA's regulations because the State's inputs are based on sound science and the resulting criteria protect the designated uses.

2. Methylmercury and bis(2-chloro-1-methylethyl) ether

Washington did not submit human health criteria for methylmercury or bis(2-chloro-1-methylethyl) ether in August 2016. For methylmercury, Washington explained in its August 2016 submittal documents that it “decided to defer state adoption of [human health criteria] for methylmercury at this time, and plans to schedule adoption of methylmercury criteria and develop a comprehensive implementation plan after the current rulemaking is completed and has received EPA Clean Water Act approval.” ^[22] To date, the EPA is not aware of any efforts Washington has undertaken since 2016 to adopt methylmercury criteria or develop associated implementation materials, likely because the EPA promulgated a federal criterion. For bis(2-chloro-1-methylethyl) ether (which was previously named `bis(2-chloroisopropyl) ether' in the NTR), Washington explained its position that “bis(2-chloroisopropyl) ether does not have a [CWA section] 304(a) national recommended criteria associated with it, thus the proposed criteria for this chemical were deleted from the [state's] final rule. Ecology has determined that the older NTR criteria for bis(2-chloroisopropyl) ether were incorrect, and were not developed for that particular priority pollutant. Ecology is adopting criteria only for the priority pollutants for which EPA has published 304(a) criteria documents.” ^[23]

CWA section 303(c)(2)(B) requires states to adopt numeric criteria for all toxic pollutants listed pursuant to CWA section 307(a)(1) for which the EPA has published 304(a) criteria, as necessary to protect the states' designated uses. In 1992, the EPA promulgated the NTR at 40 CFR 131.36, establishing chemical-specific numeric criteria for 85 priority toxic pollutants for 14 states and territories (states), including Washington, that were not in compliance with the requirements of CWA section 303(c)(2)(B). In the proposed NTR, the EPA provided states three options for demonstrating compliance with section 303(c)(2)(B).^[24]

• Option 1: Adopt statewide numeric criteria in state WQS for all section 307(a) toxic pollutants for which the EPA has developed criteria guidance, regardless of whether the pollutants are known to be present.
• Option 2: Adopt chemical-specific numeric criteria for priority toxic pollutants that are the subject of the EPA's section 304(a) criteria guidance, where the state determines based on available information that the pollutants are present or discharged and can reasonably be expected to interfere with designated uses.
• Option 3: Adopt a procedure to be applied to a narrative WQS provision prohibiting toxicity in receiving waters. Such procedures would be used by the state in calculating derived numeric criteria which must be used for all purposes under section 303(c) of the CWA. At a minimum, such criteria need to be developed for section 307(a) toxic pollutants, as necessary to support designated uses, where these pollutants are discharged or present in the affected waters and could reasonably be expected to interfere with designated uses.

For the NTR in Washington, the EPA applied Option 1, explaining that Washington “has not adopted numeric criteria for any human health based criteria for priority pollutants, and EPA has reason to believe that at least some additional criteria are necessary to comply with section 303(c)(2)(B).” ^[25] The EPA further explained that it did not attempt “to determine the specific priority pollutants and water bodies that require criteria. However, EPA has determined that at least some Federal criteria are necessary to protect designated uses. This determination is supported by information in the record which demonstrates that priority toxic pollutants are discharged or present in surface waters at levels that can reasonably be expected to interfere with State designated uses. For some priority toxic pollutants, available data clearly demonstrate use impairment and the need for toxics criteria. For most priority toxic pollutants, however, available data on the discharge and presence of priority toxic pollutants are spatially and temporally limited. Nevertheless, EPA believes that the data for many of these pollutants are sufficient to satisfy the `reasonable expectation' test established in section 303(c)(2](B).” ^[26]

In 2016, Washington explained in its submittal that it was following Option 1 outlined in the NTR by adopting human health criteria for all CWA section 307(a) priority toxic pollutants (except mercury/methylmercury) for which the EPA has developed national recommended CWA section 304(a) criteria, regardless of whether the pollutants are known to be present in the state.^[27] The EPA followed this same approach in 2016 when promulgating federal human health criteria for Washington.^[28] However, while Washington concluded in 2016 that it wanted to retain the 1992 federally promulgated NTR criteria for mercury and adopt methylmercury criteria in the future, the EPA determined that revised criteria for all priority pollutants were necessary in Washington and therefore promulgated a fish tissue methylmercury criterion (replacing the NTR water column mercury criteria) for Washington in 2016. Also, as explained in a memo to the file in the docket for the 2016 rulemaking,^[29] the EPA disagreed with Washington's conclusion that bis(2-chloro-1-methylethyl) ether was not a CWA section 307(a) priority pollutant with associated CWA section 304(a) criteria, and therefore the EPA promulgated criteria for bis(2-chloro-1-methylethyl) ether at 40 CFR 131.45. Because the EPA followed the same Option 1 approach in 2016 as it used in the NTR and as Washington used for its submittal in 2016, the EPA did not specifically conduct a search for available information indicating that any of the priority pollutants, including methylmercury and bis(2-chloro-1-methylethyl) ether, are present or discharged in Washington and can reasonably be expected to interfere with Washington's designated uses.

However, as Washington noted in its 2016 submittal, mercury contamination is widespread across all 50 states, and Washington has listed waters as impaired and issued fish advisories due to mercury.^[30] Additionally, Washington's 2016 cost-benefit analysis for its human health criteria rulemaking identified mercury as one of the five most detected chemicals in three discharger categories (wastewater treatment plants, pulp and paper mills, and resource extraction).^[31] For its final rulemaking in 2016, the EPA identified reasonable potential for certain industrial dischargers in the state to cause or contribute to exceedances of the federally promulgated methylmercury criterion.^[32] Therefore, the available evidence indicates that mercury is present and discharged in Washington and can reasonably be expected to interfere with Washington's designated uses.

The available data on bis(2-chloro-1-methylethyl) ether are more limited. The EPA did not identify reasonable potential for any dischargers in Washington to cause or contribute to exceedances of the federally promulgated criteria for bis(2-chloro-1-methylethyl) ether. Washington did not evaluate bis(2-chloro-1-methylethyl) ether in its cost-benefit analysis because it did not include this pollutant in the state rulemaking. Therefore, the EPA is not aware of evidence on whether bis(2-chloro-1-methylethyl) ether is present or discharged in Washington and can reasonably be expected to interfere with Washington's designated uses.

Given the information outlined above, the EPA proposes to retain (i.e., not withdraw) the methylmercury and bis(2-chloro-1-methylethyl) ether human health criteria promulgated for Washington at 40 CFR 131.45 (81 FR 85417, November 28, 2016). This is consistent with the Option 1 approach and will ensure that Washington has CWA-effective human health criteria for these two pollutants that may be present in Washington's waters. The EPA specifically solicits any additional information on whether mercury/methylmercury and/or bis(2-chloro-1-methylethyl) ether are present or discharged in Washington and can reasonably be expected to interfere with Washington's designated uses. Based on the public comments received, the EPA may consider withdrawing the federally promulgated criteria for one or both of these pollutants. If the EPA withdraws the federal criteria for methylmercury and/or bis(2-chloro-1-methylethyl) ether, there would be no applicable numeric criteria for CWA purposes. Washington may, at any time adopt and submit to the EPA human health criteria for either pollutant, consistent with CWA section 303(c) and the EPA's implementing regulations at 40 CFR part 131.

III. Statutory and Executive Order Reviews

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

It has been determined that this proposed rule is not a “significant regulatory action” under the terms of Executive Order 12866 (58 FR 51735, October 4, 1993) and is, therefore, not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). The proposed rule does not establish any requirements directly applicable to regulated entities or other sources of toxic pollutants.

B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

This action is expected to be an Executive Order 13771 deregulatory action.

C. Paperwork Reduction Act (PRA)

This action does not impose any new information-collection burden under the Paperwork Reduction Act (PRA) because it is administratively withdrawing federal requirements that are no longer needed in Washington. It does not include any information collection, reporting, or recordkeeping requirements. The Office of Management and Budget (OMB) has previously approved the information collection requirements contained in the existing regulations 40 CFR part 131 and has assigned OMB control number 2040-0286.

D. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (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.

E. Unfunded Mandates Reform Act (UMRA)

This action contains no unfunded federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. As this action proposes to withdraw certain federally promulgated criteria, the action imposes no enforceable duty on any state, local, or tribal governments, or the private sector.

F. Executive Order 13132: Federalism

This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This rule imposes no regulatory requirements or costs on any state or local governments. Thus, Executive Order 13132 does not apply to this action.

G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

This action may have tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. In the state of Washington, there are 29 federally recognized Indian tribes.

The EPA initiated consultation with federally recognized tribal officials under the EPA's Policy on Consultation and Coordination with Indian tribes early in the process of developing this proposed rule to allow meaningful and timely input into its development. The EPA initially offered tribal consultation on this rule making on May 21, 2019. EPA staff then offered two informational calls for tribal staff on June 4 and 5, 2019, to assist tribes with the consultation process, including the tribes' decisions on whether to accept the offer to consult. Many tribes have expressed dissatisfaction that EPA did not offer consultation prior to its May 10, 2019, decision and have questioned how meaningful the EPA's offer for consultation is on this rule making as a result. To the extent tribes have been interested in consulting on this rulemaking, they have emphasized the importance of consultation occurring prior to publication of a proposed rule. A number of tribes expressed the need for more time prior to the proposed rule publication to conduct consultation, for more information provided in advance to prepare for and engage in consultation and for the actual EPA decision-maker to be present.

Input received from tribes during consultation, meetings and through letters received thus far, indicates tribes are opposed to this proposed action. Tribes have raised health, economic and implementation concerns, as well as the EPA's trust responsibility, treaty obligations and consultation practices. While the EPA acknowledges it may not satisfy the tribal consultation expectations of each tribe, the EPA will continue to offer the opportunity to consult up to the point of finalizing this rule and will evaluate the input received before making a final decision.

H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

This rule is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because the environmental health or safety risks addressed by this action do not present a disproportionate risk to children.

I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

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

J. National Technology Transfer and Advancement Act of 1995

This proposed rulemaking does not involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA concludes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The EPA has previously determined that Washington's adopted and EPA-approved criteria are protective of human health.

List of Subjects in 40 CFR Part 131

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

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

PART 131—WATER QUALITY STANDARDS

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

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

Subpart D—Federally Promulgated Water Quality Standards

2. Amend § 131.45 by revising paragraph (b) to read as follows:

Footnotes