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Rule

Revocation of the Selenium Criterion Maximum Concentration for the Final Water Quality Guidance for the Great Lakes System

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Information about this document as published in the Federal Register.

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AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Partial revocation of final rule.

SUMMARY:

In March 1995, EPA promulgated acute and chronic aquatic life criteria for selenium as part of the Final Water Quality Guidance for the Great Lakes System (40 CFR part 132). In 1996 the U.S. Court of Appeals for the District of Columbia Circuit issued an order vacating the acute criterion for selenium. AISI v. EPA, 115 F. 3d 979 (1997) (order dated September 10, 1996). EPA did not immediately publish a notice removing the vacated acute criterion from the Code of Federal Regulations because it anticipated promulgating a new acute criterion within one year. Although EPA proposed a new criterion in November 1996, it has not yet promulgated a final criterion. Based on comments received on the proposal, as well as earlier comments EPA had received on the methodology used to develop the national selenium criteria, EPA decided to subject the selenium criteria methodology to a broader workgroup and peer review process. While the selenium workgroup and peer reviewers have made good progress they are still months away from making final recommendations on the acute criterion for selenium. In the meantime, to avoid potential confusion about the status of the vacated acute criterion, EPA has decided to remove it from the final Great Lakes Guidance in 40 CFR part 132. EPA plans to propose a new replacement acute criterion once the workgroup and peer review process is complete. In the interim, EPA is recommending that States and Tribes rely on the chronic aquatic life criterion for selenium in setting permit limits. Today's action will not affect that chronic aquatic life criterion.

EFFECTIVE DATE:

June 2, 2000.

ADDRESSES:

The public docket for this and earlier rulemakings concerning the Water Quality Guidance for the Great Lakes System, including the proposal, public comments in response to the proposal, other major supporting documents, and the index to the docket are available for inspection and copying at U.S. EPA Region 5, 77 West Jackson Blvd., Chicago, IL 60604 by appointment only. Appointments may be made by calling Mary Willis Jackson (telephone 312-886-3717).

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FOR FURTHER INFORMATION CONTACT:

Mark Morris (4301), U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, NW, Washington, DC 20460 (202-260-0312).

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SUPPLEMENTARY INFORMATION:

I. Discussion

A. Potentially Affected Entities

Citizens concerned with water quality in the Great Lakes System may be interested in this rulemaking. Also, entities potentially affected by today's action are those discharging or intending to discharge selenium to waters of the United States in the Great Lakes System. Categories and entities that may ultimately be affected include:

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CategoryExamples of potentially affected entities
IndustryIndustries discharging or intending to discharge selenium to waters in the Great Lakes System as defined in 40 CFR 132.2.
MunicipalitiesPublicly owned treatment works discharging or intending to discharge selenium to waters of the Great Lakes System as defined in 40 CFR 132.2.

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your facility is affected by this action, you should carefully examine the definition of “Great Lakes System” in 40 CFR 132.2 and examine the preamble to 40 CFR part 132, which describes the part 132 regulations. See 60 FR 15366 (March 23,1995). If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the preceding FOR FURTHER INFORMATION CONTACT section.

B. Background

On March 23, 1995, EPA promulgated the Final Water Quality Guidance for the Great Lakes System (Guidance) required under section 118(c)(2) of the Clean Water Act, 33 U.S.C. 1268(c)(2). See 60 FR 15366 (March 23, 1995). The Guidance protects the waters of the Great Lakes and their tributaries by establishing water quality criteria for 29 pollutants to protect aquatic life, wildlife and human health, and detailed methodologies to develop criteria for additional pollutants. It also establishes implementation procedures to help Great Lakes States and Tribes develop more consistent, enforceable water-quality based effluent limits in discharge permits, as well as more consistent total maximum daily loads for the Great Lakes System. For a description of the environmental significance of the Great Lakes System and the serious environmental threats it faces (particularly from persistent, bioaccumulative chemicals), see the April 16, 1993, preamble to the proposed Guidance (58 FR 20802).

The ambient water quality criteria included in the Guidance to protect aquatic life set maximum ambient concentrations for harmful pollutants to be met in all waters in the Great Lakes System. See 40 CFR part 132, Tables 1 and 2. Great Lakes States and Tribes were required to adopt criteria consistent with EPA's criteria by March 1997. CWA section 118(c)(2)(c). If any State or Tribe fails to adopt criteria, EPA must promulgate criteria applying in that State or Tribe's jurisdiction. Id. Once the criteria take effect, permits for discharges of such pollutants into the Great Lakes System must include limits as necessary to attain the criteria.

EPA promulgated aquatic life criteria for 15 toxic pollutants including selenium. The selenium criterion was based on field data from Belews Lake in North Carolina. The chronic criterion, or Criterion Continuous Concentration (CCC), was set at 5 micrograms per liter (μg/L) (the concentration of selenium in a portion of Belews Lake where no chronic effects were observed). The acute criterion, or Criterion Maximum Concentration (CMC), was calculated as 19.34 μg/L (by multiplying the CCC by a laboratory-derived acute to chronic ratio and dividing by two). The total recoverable criteria published for selenium in part 132 were derived with the same data as provided in the criteria document, “Ambient Water Quality Criteria for Selenium—1987” (EPA 440/5-87-008).

Several industries and trade associations challenged the acute aquatic life criterion, or CMC, for selenium. AISI v. EPA, 115 F. 3d 979 (1997). Among the issues they raised was that inorganic selenium has two oxidation states, selenite and selenate, that have different toxicities to aquatic life, and that EPA erred by promulgating a single acute criterion that failed to properly account for the two oxidation states. EPA re-examined the issue, and decided, that it would be in the public interest to propose and provide an opportunity to comment on a new approach for deriving a CMC for selenium that takes into account not only the different toxicities of the two oxidation states described above, but also new data indicating that all forms of selenium are additive. EPA requested the reviewing Court to remand the acute criterion to allow EPA to propose revisions. On September 19, 1996, the U.S. Court of Appeals for the District of Columbia Circuit issued an order vacating the acute criterion.

C. Decision to Remove the Aquatic Life CMC for Selenium

EPA proposed a revised CMC for aquatic life for selenium on November 14, 1996 (61 FR 58444). Because EPA intended to promulgate a new selenium criterion soon after its 1996 proposal, EPA did not immediately withdraw the vacated regulation from the Code of Federal Regulations as is its normal practice. However, based on comments received on the proposal, as well as earlier comments EPA had received on the methodology used to develop the national selenium criteria, EPA decided to subject the selenium criteria methodology to a broader workgroup and peer review process. While the selenium workgroup and peer reviewers have made good progress they are still months away from making final recommendations on the selenium CMC. At least one member of the public has raised concern that, since the criterion continues to appear in the CFR, it appears to remain in effect. EPA agrees that the criterion is not in effect, and, since EPA has not been able to replace it promptly, removing it will reduce the potential for confusion. Therefore, EPA has decided to withdraw the selenium CMC from part 132, Table 1(a).

EPA plans to propose a new selenium CMC for the Great Lakes Guidance once the workgroup and peer review process is complete. EPA is not removing the 1995 CCC for selenium codified in Table 2(a) to part 132. EPA is not withdrawing the Clean Water Act section 304(a) criteria document for either the acute or the chronic criterion for selenium recommended for use in the national program because criteria developed for the national program are guidance and States and Tribes may adopt other criteria that are scientifically defensible. “Ambient Water Quality Criteria for Selenium—1987” (EPA 440/5-87-008). EPA will consider revising the national document after the workgroup and peer reviewers complete their work, and sometime later EPA will propose a new Great Lakes criterion. The Court's order does not affect the status of either the 1995 CCC for the Guidance or any portion of the national criteria document.

D. Consequences of Today's Action

As a result of today's action, States and Tribes need not adopt or submit to EPA for review an aquatic life CMC for selenium for waters of the Great Lakes Basin. In the interim, EPA is recommending that States and Tribes rely on the aquatic life CCC for selenium in Table 2(a) of part 132 when setting Start Printed Page 35285permit limits. States and Tribes have submitted aquatic life CCC for selenium that are as protective as the 1995 Guidance CCC for selenium.

II. “Good Cause” Under the Administrative Procedure Act

Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because EPA finds it “unnecessary” to provide an opportunity to comment on the strictly legal issue of the impact of the AISI decision on the March 1995 selenium CMC. The U.S. Court of Appeals for the District of Columbia Circuit issued an order vacating the acute criterion for selenium in 1996. This rule merely removes the criterion from the CFR to eliminate confusion. Thus, notice and public procedure are contrary to the public interest. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B). For this reason, EPA has also determined that it has “good cause” under 5 U.S.C. 553(d) to make the rule immediately effective upon publication.

III. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA must determine whether the regulatory action is “significant” and therefore subject to Office of Management and Budget (OMB) review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:

(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

It has been determined that this rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

IV. Submission to Congress and the General Accounting Office

The Congressional Review Act (5 U.S.C. 801 et seq.) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of June 2, 2000. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

V. Regulatory Flexibility Act as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996

Because the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (see section II), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

VI. Unfunded Mandates Reform Act

Because the Agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (see section II), it is not subject to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4).

VII. Paperwork Reduction Act

There are no information collection requirements in this final rule and therefore there is no need to obtain OMB approval under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.

VIII. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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.”

Under section 6 of the Executive Order 13132, EPA may not issue a regulation that has federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has federalism implications and that preempts State law, unless the Agency consults with State and local officials early in the process of developing the proposed regulation.

This final rule 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, as specified in Executive Order 13132. Because the AISI Court vacated the aquatic life CMC for selenium in 1996, EPA is removing it from the final Great Lakes Guidance in 40 CFR part 132. As a result, States and Tribes need not adopt or submit to EPA for review an aquatic life CMC for selenium for waters of the Great Lakes Basin as part of their part 132 submission. Thus, the requirements of section 6 of the Executive Order do not apply to this rule.

IX. Executive Order 13084, Consultation and Coordination With Indian Tribal Governments

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Start Printed Page 35286Federal government provides the funds necessary to pay the direct compliance costs incurred by the Tribal governments, or EPA consults with those governments. If EPA complies by consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected Tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”

Today's rule does not significantly or uniquely affect the communities of Indian tribal governments nor does it impose substantial direct compliance costs on them. Today's final rule only withdraws the selenium CMC from part 132, Table 1(a) of the final Great Lakes Guidance. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this rule.

X. Executive Order 13045 on Protection of Children From Environmental Health Risks and Safety Risks

Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

This final rule is not subject to the Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, this rule does not concern an environmental health or safety risks that EPA has reason to believe may have a disproportionate effect on children. This final rule merely removes the aquatic life CMC for selenium from part 132, Table 1(a) of the Guidance, consistent with the 1996 Court order vacating the acute (CMC) criterion for selenium. In the interim, EPA is recommending that States and Tribes rely on the aquatic life CCC for selenium in Table 2(a) of part 132 when setting permit limits. States and Tribes have submitted aquatic life CCC for selenium that are as protective as the 1995 Guidance CCC for selenium.

XI. National Technology Transfer and Advancement Act of 1995

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impracticable. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

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List of Subjects in 40 CFR Part 132

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Dated: May 25, 2000.

Carol M. Browner,

Administrator.

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For the reasons set out in the preamble Title 40, Chapter I of the Code of Federal Regulations is amended as follows:

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PART 132—WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM

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1. The authority citation for part 132 continues to read as follows:

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

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2. Table 1(a) to part 132 is amended by removing the entry for selenium.

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[FR Doc. 00-13771 Filed 6-1-00; 8:45 am]

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