[Federal Register Volume 76, Number 180 (Friday, September 16, 2011)]
[Rules and Regulations]
[Pages 57646-57653]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23817]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 132
[EPA-HQ-OW-2010-0492; FRL-9466-3]
RIN 2040-AF23
Final Withdrawal of Certain Federal Aquatic Life Water Quality
Criteria Applicable to Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The EPA is withdrawing the federal aquatic life water quality
criteria for chronic and acute copper and nickel, and chronic endrin
and selenium applicable to certain waters of the Great Lakes System in
Wisconsin. Wisconsin's revised and EPA-approved criteria adequately
protect all waters of the State designated for aquatic life use at a
level consistent with the federal requirements. As a result of this
withdrawal, Wisconsin will continue to implement its EPA-approved
aquatic life criteria.
DATES: This final rule is effective on October 17, 2011.
ADDRESSES: The EPA established a docket for this action under Docket ID
No. EPA-HQ-OW-2010-0492. All documents in the docket are listed on the
http://www.regulations.gov Web site. Although listed in the index, some
information is not publically available, e.g., confidential business
information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publically available only in
hard copy form. Publicly available docket materials are available
either electronically through http://www.regulations.gov or in hard
copy at the Office of Water (OW) Docket Center. This Docket Facility is
open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding
legal holidays. The Docket telephone number is (202) 566-2426, and the
Docket address is OW Docket, EPA West, Room 3334, 1301 Constitution
Ave., NW., Washington, DC 20004. The Public Reading Room is open from
8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal
holidays. The telephone number for the Public Reading Room is (202)
566-1744.
FOR FURTHER INFORMATION CONTACT: Francine Norling, U.S. EPA, Region 5,
77 W. Jackson Blvd., Chicago, IL 60604 (telephone: (312) 886-0271 or e-
mail: norling.francine@epa.gov) or Sara Hilbrich, U.S. EPA
Headquarters, Office of Science and Technology, 1200 Pennsylvania
Avenue, NW., Mail Code 4305T, Washington, DC 20460 (telephone: (202)
564-0441 or e-mail: hilbrich.sara@epa.gov).
SUPPLEMENTARY INFORMATION:
I. Potentially Affected Entities
II. Background
A. Applicable Federal Statutory and Regulatory Requirements
B. Why is the EPA withdrawing certain federal aquatic life water
quality criteria applicable to Wisconsin?
C. Why is the EPA not withdrawing Wisconsin's chronic endrin
aquatic life use criterion for waters designated as Warm Water
Sportfish and Warm Water Forage Fish use, and chronic selenium
aquatic life use criterion for waters designated as limited Forage
Fish use?
D. What are the applicable federal aquatic life water quality
criteria that the EPA is withdrawing?
III. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From
Environmental Health and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
I. National Technology Transfer and Advancement Act
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations)
K. Congressional Review Act
I. Potentially Affected Entities
This rule withdraws federal water quality standards, specifically
aquatic life criteria for chronic and acute copper and nickel and
chronic endrin and selenium for Wisconsin surface waters designated for
certain aquatic life uses in the Great Lakes System (described in 40
CFR part 132). As a result of this rule, Wisconsin will implement the
following State-revised and EPA-approved aquatic life criteria: chronic
and acute copper and nickel for all Wisconsin surface waters designated
for aquatic life use; chronic endrin for Wisconsin surface waters
designated for aquatic life use except waters designated as Warm Water
Forage Fish and Warm Water Sportfish use; chronic selenium for
Wisconsin surface waters designated for aquatic life use except waters
designated as Limited Forage Fish use. Entities discharging copper,
nickel, endrin or selenium to surface waters of Wisconsin could be
affected by this rulemaking given that water quality standards are used
to determine water quality based effluent limits in National Pollutant
Discharge Elimination System (NPDES) permits, and may affect Clean
Water Act (CWA) Section 404 dredge and fill permits, and other federal
licenses and permits requiring CWA 401 certification. Table 1, below,
provides examples of the types of NPDES-regulated entities that may
ultimately be affected by the federal rule withdrawal.
Table 1--Examples of Entities Potentially Affected by the Federal Rule
Withdrawal
------------------------------------------------------------------------
Examples of potentially affected
Category entities
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Industry.......................... Industries discharging to surface
waters in Wisconsin designated by
the State for aquatic life use.
[[Page 57647]]
Municipalities.................... Publicly-owned treatment works
discharging to surface waters in
Wisconsin designated by the State
for aquatic life use.
------------------------------------------------------------------------
If you have any questions regarding the applicability of this
action to a particular entity, consult the person identified in the
preceding section entitled FOR FURTHER INFORMATION CONTACT.
II. Background
A. Applicable Federal Statutory and Regulatory Requirements
In 1995, the EPA published the final Water Quality Guidance for the
Great Lakes System (Guidance), required by CWA Section 118(c)(2) (33
U.S.C. 1268). Among other provisions, the Guidance identified minimum
water quality standards to protect aquatic life as part of a
comprehensive plan to restore the health of the Great Lakes System (40
CFR 132.3). Under CWA Section 118(c)(2), within two years of publishing
the Guidance, Great Lakes States, including Wisconsin, were required to
adopt provisions consistent with the Guidance into their water quality
standards and NPDES permit programs. The regulation at 40 CFR 132.5(f)
provides that, after review of a State's water quality standards
submission, the EPA must either publish a notice of approval of the
State's submission in the Federal Register or notify the State that the
EPA has determined that all or part of its submission is inconsistent
with the CWA and/or the Guidance, and identify any changes needed to
obtain EPA approval. If the EPA notified the State of inconsistencies,
then the State had 90 days to make the necessary changes. If the State
failed to make the necessary changes, the EPA was required to publish a
document in the Federal Register identifying the approved and
disapproved elements of the submission and a final rule identifying the
provisions of the Guidance that apply to the State.
B. Why is the EPA withdrawing certain federal aquatic life water
quality criteria applicable to Wisconsin?
In 1997, Wisconsin adopted revised water quality standards to
comply with the Guidance requirements at 40 CFR part 132. In October
2000, the EPA disapproved six of Wisconsin's revised aquatic life
criteria including chronic and acute copper and nickel, and chronic
endrin and selenium. Subsequently the EPA published a final rule
effective February 5, 2001, making the following aquatic life criteria,
published at 40 CFR 132.6, effective for waters of the Great Lakes
System in the State of Wisconsin: (1) Chronic and acute copper and
nickel in Tables 1 and 2 of 40 CFR 132.6(f); (2) chronic endrin in
Table 2 of 40 CFR 132.6(f); and (3) chronic selenium in Table 2 of 40
CFR 132.6(g).
In January 2008, Wisconsin began rulemaking to revise its water
quality standards to address the EPA's disapproval of these aquatic
life criteria. The Wisconsin Natural Resources Board adopted the
State's revised criteria on June 24, 2008 and the Wisconsin Attorney
General certified these rules on December 22, 2008. On May 4, 2009, EPA
Region 5 received a letter from the Wisconsin Department of Natural
Resources requesting approval of final revisions to Chapter NR 105
(Surface Water Quality Criteria and Secondary Values for Toxic
Substances) of the Wisconsin Administrative Code (WAC).
Pursuant to CWA section 303(c)(3), the EPA is required to review
and approve new and revised State water quality standards before such
standards become effective for CWA purposes. The EPA found that
Wisconsin's revised criteria, with the exception of chronic selenium
for waters designated by Wisconsin as Limited Forage Fish use, satisfy
the federal requirements for submittal of new or revised water quality
standards to the EPA and are consistent with the CWA and the Guidance
requirements. Therefore, the EPA approved Wisconsin's revised aquatic
life criteria on July 1, 2009, with the exception of the chronic
aquatic life criterion for selenium in waters designated by Wisconsin
as Limited Forage Fish use.
The EPA's approval of Wisconsin's aquatic life criteria makes the
federal criteria no longer necessary for compliance with the CWA and
the Guidance. Therefore, the EPA determined that the following federal
aquatic life criteria for waters of the Great Lakes System in Wisconsin
may be withdrawn: chronic and acute copper and nickel for all aquatic
life uses; chronic endrin for all aquatic life uses with the exception
of waters designated by Wisconsin as Warm Water Forage Fish and Warm
Water Sportfish use; and chronic selenium for all aquatic life uses
with the exception of waters designated by Wisconsin as Limited Forage
Fish use.
C. Why is the EPA not withdrawing Wisconsin's chronic endrin aquatic
life use criterion for waters designated as Warm Water Sportfish and
Warm Water Forage Fish use, and chronic selenium aquatic life use
criterion for waters designated as limited Forage Fish use?
The EPA is not withdrawing the federal chronic endrin aquatic life
use criterion for waters of the Great Lakes System in Wisconsin
designated as Warm Water Sportfish and Warm Water Forage Fish use, due
to a State transcription error. While the EPA approved Wisconsin's
revised chronic endrin aquatic life use criteria for all waters in the
State of Wisconsin on July 1, 2009, the chronic aquatic life use
criterion for endrin for waters designated as Warm Water Forage Fish
and Warm Water Sportfish use published in Wisconsin's regulations at NR
105.06 (0.05 [mu]g/L) is not identical to the criterion that Wisconsin
submitted and that the EPA had approved (0.036 [mu]g/L). The EPA is not
withdrawing the federal chronic endrin criterion for these aquatic life
uses until after Wisconsin concludes rulemaking to correct the
criterion in the State's regulations.
The EPA is not withdrawing the federal chronic selenium aquatic
life use criterion for waters of the Great Lakes System in Wisconsin
designated for Limited Forage Fish use because the EPA took no action
on Wisconsin's revised chronic selenium criterion for this aquatic life
use in its July 1, 2009 action approving the other aquatic life
criteria. Therefore, the federal aquatic life use criterion for chronic
selenium will continue to apply to waters within the Great Lakes System
of Wisconsin, designated as Limited Forage Fish use. Wisconsin
calculated the chronic selenium criterion based on water column
toxicity studies, rather than through dietary exposure, which currently
available data indicates is the appropriate methodology to use. Because
Wisconsin does not have an EPA-approved chronic aquatic life selenium
criterion for Limited Forage Fish Waters, the EPA is not withdrawing
the federal chronic aquatic
[[Page 57648]]
life selenium criterion for Wisconsin's Limited Forage Fish waters in
this rule. Wisconsin may revise their chronic selenium criterion and
submit it to the EPA for review and approval at a future date.
D. What are the applicable federal aquatic life water quality criteria
that the EPA is withdrawing?
The EPA is withdrawing certain federal aquatic life criteria for
Wisconsin included in the Guidance at 40 CFR 132.6. Specifically, the
EPA is withdrawing the federal aquatic life use criteria for chronic
and acute copper and nickel (40 CFR 132.6(f)) applicable to all waters
of the Great Lakes System in Wisconsin designated for aquatic life
uses. The EPA is also amending the federal chronic aquatic life
criterion for endrin (40 CFR 132.6(f)) to apply exclusively to waters
designated by Wisconsin as Warm Water Sportfish and Warm Water Forage
Fish use, and amending the federal chronic aquatic life criterion for
selenium (40 CFR 132.6(g)) to apply exclusively to waters designated by
Wisconsin as Limited Forage Fish use. As a result of this final rule
withdrawal, Wisconsin will implement the EPA-approved aquatic life
criteria under State law.
Wisconsin has tiered aquatic life uses and the State's EPA-approved
aquatic life criteria revisions do not affect Wisconsin's designated
uses included in Chapter NR 105 of the WAC. Based on the designated
uses defined in NR 102.04(3) of the WAC, Wisconsin's aquatic life
designated uses of Cold Water, Warm Water Sportfish, and Warm Water
Forage Fish are consistent with the requirements of CWA Section
101(a)(2) for the protection and propagation of fish, shellfish, and
wildlife. The Limited Forage Fish aquatic life use does not meet this
requirement because these surface waters are capable of supporting only
a ``limited community of forage fish and other aquatic life,'' based on
``limited capacity and naturally poor water quality or habitat'' (WAC,
Chapter 102.04(3)(d)). The following section discusses and compares the
calculations and criteria included in the EPA's federal regulations and
those included in Wisconsin's revised criteria.
1. Acute Copper Aquatic Life Criteria Applicable to Cold Water, Warm
Water Sportfish, Warm Water Forage Fish, Limited Forage Fish, and
Limited Aquatic Life Designated Uses
Wisconsin adopted and the EPA reviewed and approved an acute copper
aquatic life criteria equation applicable to all surface waters in
Wisconsin designated for aquatic life use. The equation used by
Wisconsin to calculate the acute copper aquatic life criteria results
in a slightly higher value than the EPA equation at a given hardness
(see Table 2).
Table 2--Acute Copper Criteria Equation
[All aquatic life designated uses]
------------------------------------------------------------------------
EPA criteria maximum concentration Wisconsin acute toxicity criteria
([mu]g/L) ([mu]g/L)
------------------------------------------------------------------------
CMC = exp(0.9422*ln(hardness)) - ATC =
1.700 1.6036
------------------------------------------------------------------------
The difference between the EPA's and Wisconsin's intercept in the
acute copper equation is due to the elimination of one of the most
sensitive species from the criteria calculation (northern pikeminnow,
genus Ptychocheilus) and inclusion of additional data for three
species. Eliminating the Ptychocheilus data from the equation is
scientifically defensible because Ptychocheilus is not native to
Wisconsin and is not a surrogate for other Wisconsin taxa unrepresented
in the data set. The northern pikeminnow is a type of minnow, and other
minnows (fathead and bluntnose) found in Wisconsin are well-represented
in the copper data set. Wisconsin's slope of 0.9436 is slightly
different from the EPA's 0.9422 slope due to Wisconsin's inclusion of
additional data on three species (Daphnia magna, rainbow trout, and
bluegill) that were not included in the EPA's 1985 slope calculation
used in the Guidance. The EPA included these data in the 1995 criteria
update, but did not recalculate the slope used in the 1985 EPA copper
criteria document.
Wisconsin's method for deriving the acute copper criteria equation
is an acceptable State-specific modification of the EPA's criteria,
consistent with Wisconsin's methods for deriving criteria (WAC Chapter
NR 105). The equation is scientifically sound and results in criteria
that are protective of the use; therefore this equation is consistent
with CWA Sections 101(a)(2) and 303(c)(2), and 40 CFR Parts 131 and
132.
2. Chronic Copper Aquatic Life Criteria Applicable to Cold Water, Warm
Water Sportfish, Warm Water Forage Fish, Limited Forage Fish, and
Limited Aquatic Life Designated Uses
Wisconsin adopted and the EPA reviewed and approved a chronic
copper aquatic life criteria equation applicable to all surface waters
in Wisconsin designated for aquatic life use. The equation used by
Wisconsin for calculating chronic aquatic life criteria for copper
produces a slightly higher value than the EPA equation at a given
hardness (see Table 3).
Table 3--Chronic Copper Criteria Equation
[All aquatic life designated uses]
------------------------------------------------------------------------
EPA criterion continuous Wisconsin chronic toxicity criteria
concentration ([micro]g/L) ([micro]g/L)
------------------------------------------------------------------------
CCC = exp(0.8545*ln(hardness))- CTC
1.702 1.6036
------------------------------------------------------------------------
The difference between the EPA's and Wisconsin's chronic copper
equation intercept is primarily due to the elimination of one of the
most sensitive species from the federal criteria calculation (northern
pikeminnow, genus Ptychocheilus), which is not native to Wisconsin.
Wisconsin's elimination of data for a non-native species that is not a
surrogate for taxa that are unrepresented in the data set, is
scientifically defensible. The northern
[[Page 57649]]
pikeminnow is a type of minnow, and other minnows (fathead and
bluntnose) found in Wisconsin, are well-represented in the copper data
set. Wisconsin's slope of 0.8557 is slightly different from the EPA's
0.8545 slope due to Wisconsin's inclusion of additional data on three
species (Daphnia magna, rainbow trout, and bluegill) that were not
included in the EPA's 1985 slope calculation used in the Guidance. The
EPA included these data in the 1995 criteria update, but did not
recalculate the slope used in the 1985 copper criteria document.
Wisconsin's method for deriving the chronic copper criteria
equation is an acceptable State-specific modification of the EPA's
criteria, consistent with Wisconsin's methods for deriving criteria
(WAC Chapter NR 105). The equation is scientifically sound and results
in criteria that are protective of the use, therefore this equation is
consistent with CWA Sections 101(a)(2) and 303(c)(2), and 40 CFR parts
131 and 132.
3. Acute Nickel Aquatic Life Criteria Applicable to Cold Water, Warm
Water Sportfish, Warm Water Forage Fish, Limited Forage Fish, and
Limited Aquatic Life Designated Uses
Wisconsin adopted and the EPA reviewed and approved an acute nickel
aquatic life criteria equation applicable to all surface waters in
Wisconsin designated for aquatic life use. The equation used by
Wisconsin to calculate acute aquatic life criteria for nickel is
identical to the equation contained in the Great Lakes Water Quality
Guidance, 40 CFR part 132 as well as the EPA's CWA Section 304(a)
criteria (see Table 4). The equation is scientifically sound and
results in criteria that are protective of the use, therefore this
equation is consistent with CWA Sections 101(a)(2) and 303(c)(2), and
40 CFR parts 131 and 132.
Table 4--Acute Nickel Criteria Equation
[All aquatic life designated uses]
------------------------------------------------------------------------
EPA criteria maximum concentration Wisconsin acute toxicity criteria
([micro]g/L) ([micro]g/L)
------------------------------------------------------------------------
CMC = exp(0.846*ln(hardness)) + ATC =
2.255 2.255
------------------------------------------------------------------------
4. Chronic Nickel Aquatic Life Criteria Applicable to Cold Water, Warm
Water Sportfish, Warm Water Forage Fish, Limited Forage Fish, and
Limited Aquatic Life Designated Uses
Wisconsin adopted and the EPA reviewed and approved, two criteria
equations for chronic nickel for differing aquatic life uses (see Table
5).
Table 5--Chronic Nickel Criteria Equations
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Wisconsin chronic toxicity criteria
EPA criterion continuous ([micro]g/L): Cold water, warm water Wisconsin chronic toxicity criteria
concentration ([micro]g/L) sportfish, warm water forage fish, ([micro]g/L): Limited aquatic life
and limited forage fish
----------------------------------------------------------------------------------------------------------------
CCC = exp(0.846*ln(hardness)) + CTC = exp(0.846*ln(hardness)) + CTC
0.0584 .0591 .4004
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The equation used by Wisconsin for calculating the chronic nickel
criteria for Cold Water, Warm Water Sportfish, Warm Water Forage Fish,
and Limited Forage Fish designated uses results in a value that is
slightly higher than the resulting criterion from the EPA's equation at
a given hardness. This difference is due to Wisconsin's use of a
slightly different intercept and acute-chronic ratio for the Cladoceran
test data. The equation for the Limited Aquatic Life classification has
a different value for the intercept because data for the fathead
minnow, which are not expected to have a fish community in Limited
Aquatic Life use waters, were not included in the calculation.
For the Cold Water, Warm Water Sportfish, Warm Water Forage Fish,
and Limited Forage Fish water classifications, Wisconsin's chronic
nickel criteria equation is scientifically defensible and results in
criteria protective of the use and therefore is consistent with CWA
Sections 101(a)(2) and 303(c)(2), and 40 CFR parts 131 and 132. For
Wisconsin's equation for Limited Aquatic Life water classification, the
elimination of data for a non-resident species is an appropriate State-
specific modification of the EPA's equation. Wisconsin's equation is
scientifically sound and results in criteria that are protective of the
use, and is therefore consistent with CWA Sections 101(a)(2) and
303(c)(2), and 40 CFR parts 131 and 132.
5. Chronic Endrin Aquatic Life Criteria Applicable to Cold Water, Warm
Water Sportfish, Warm Water Forage Fish, Limited Forage Fish, and
Limited Aquatic Life Designated Uses
Wisconsin adopted and the EPA reviewed and approved a chronic
endrin criterion for Cold Water, Warm Water Forage Fish, and Warm Water
Sportfish classifications that is identical to the EPA's criterion in
the Guidance (40 CFR part 132). The criterion is scientifically sound
and protective of the use, therefore this criterion is consistent with
CWA Sections 101(a)(2) and 303(c)(2), and 40 CFR parts 131 and 132 (see
Table 6). However, due to a transcription error, the chronic endrin
aquatic life use criterion for waters designated as Warm Water Forage
Fish and Warm Water Sportfish use published in Wisconsin's regulations
NR 105.06 (0.05 [micro]g/L) is not identical to the criterion that
Wisconsin submitted to the EPA and which the EPA approved (0.036
[micro]g/L). Therefore, the EPA is not withdrawing the federal chronic
endrin criterion for these uses until after Wisconsin concludes
rulemaking to correct the criterion in the State's regulations.
[[Page 57650]]
Table 6--Chronic Endrin Aquatic Life Criteria
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Wisconsin chronic toxicity criteria
EPA criterion continuous ([micro]g/L): Cold water, warm water Wisconsin chronic toxicity criteria
concentration ([micro]g/L) forage fish, and warm water ([micro]g/L): Limited forage fish
sportfish and limited aquatic life
----------------------------------------------------------------------------------------------------------------
0.036 0.036 0.050
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Wisconsin's criterion for Limited Forage Fish and Limited Aquatic
Life waters is higher than the EPA's criterion because three of the
four most sensitive genera used to calculate the EPA's criterion do not
exist in these waters in Wisconsin, and were therefore excluded from
the State's calculation. These species are Perca (yellow perch),
Lepomis (bluegill), and micropterus (largemouth bass). Instead,
Wisconsin used data for the following genera for the endrin criterion
calculation for Limited Forage Fish Waters: Pteronarcys (stonefly),
which was also used by the EPA; Cyprinus (carp); Piemphales (fathead
minnow); and Pteronarcella (stonefly). When the fathead minnow data set
was removed from the Limited Aquatic Life calculation, the calculated
criterion was lower than the calculated criterion for Limited Forage
Fish waters. Under Wisconsin's rules NR 105.05(1)(a)(9), when this
occurs, the Limited Aquatic Life criterion can be set equal to the
Limited Forage Fish criterion if the species used to calculate the
Limited Aquatic Life criterion are already included in the database
used to calculate the Limited Forage Fish criterion. Therefore,
Wisconsin established the Limited Aquatic Life criterion for endrin at
a level that provides protection equal to the level for the Limited
Forage Fish criterion.
Wisconsin's method for deriving the chronic endrin criterion for
Limited Aquatic Life and Limited Forage Fish waters is an acceptable
State-specific modification of the EPA's criterion, consistent with
Wisconsin's methods for deriving criteria (Chapter NR 105 of the WAC).
The criterion is scientifically sound and protective of the use,
therefore this criterion is consistent with CWA Sections 101(a)(2) and
303(c)(2), and 40 CFR parts 131 and 132.
6. Chronic Selenium Aquatic Life Criteria Applicable to Cold Water,
Warm Water Sportfish, Warm Water Forage Fish, Limited Forage Fish, and
Limited Aquatic Life Designated Uses
The EPA reviewed and approved Wisconsin's revised chronic selenium
criterion for Cold Water, Warm Water Sportfish, and Warm Water Forage
Fish classifications, which are identical to the EPA's chronic selenium
criterion in 40 CFR part 132 (see Table 7). The criterion is
scientifically sound and protective of the uses, and is therefore
consistent with CWA Section 101(a)(2) and 303(c)(2), and 40 CFR parts
131 and 132.
Table 7--Chronic Selenium Aquatic Life Criteria
----------------------------------------------------------------------------------------------------------------
Wisconsin chronic toxicity criteria Wisconsin chronic toxicity criteria
EPA Criterion continuous ([mu]g/L): Cold water, warm water ([mu]g/L): Limited forage fish,
concentration ([micro]g/L) sportfish, warm water forage fish limited aquatic life
----------------------------------------------------------------------------------------------------------------
5.0 5.0 46.5
----------------------------------------------------------------------------------------------------------------
Wisconsin did not adopt the EPA's chronic aquatic life criterion
for selenium, found in 40 CFR Part 132, for Limited Aquatic Life
waters. Wisconsin's basis for this decision is that Limited Aquatic
Life waters only support an invertebrate community, and the EPA's
criterion was based on observed effects of selenium on sportfish
(bluegills) in field studies (Belews Lake, North Carolina, and others).
Instead, Wisconsin calculated a criterion for Limited Aquatic Life
waters based on toxicity studies listed in the EPA's 1987 selenium
aquatic life criteria document (selenite, +4). Wisconsin's value of
46.5 [micro]g/L is slightly different than the EPA's calculated
criterion of 44.72 [micro]g/L, because Wisconsin removed the data for
two saltwater species used in the EPA's calculation.
Wisconsin's chronic aquatic life selenium criterion of 46.5
[micro]g/L for Limited Aquatic Life waters is consistent with the
protection provided for aquatic life in Limited Aquatic Life waters,
for several reasons. First, two of the three freshwater studies used to
calculate the criterion, in accord with the 1985 Guidelines, were
conducted on invertebrates (Daphnia magna and Daphnia pulex). Wisconsin
followed their State procedures for deriving aquatic life criteria,
using these toxicity studies (Chapter NR 105 of the WAC). Second,
current literature on selenium states: ``The most important aspect of
selenium residues in aquatic food chains is not direct toxicity to the
organisms themselves, but rather the dietary source of selenium they
provide to fish and wildlife species that feed on them''.\1\ In the
case of Limited Aquatic Life waters, there are no fish that feed on the
invertebrates, and there is currently no information available to
determine effects on wildlife from eating these organisms. No new
studies have been conducted with invertebrates that would provide a
scientific basis to refute the 1987 invertebrate toxicity studies
reported in the EPA's 1987 selenium criteria document.
---------------------------------------------------------------------------
\1\ Lemly, A Dennis. 2002. Selenium Assessment in Aquatic
Ecosystems: A Guide for Hazard Evaluation. Springer Series on
Environmental Management. Page 23.
---------------------------------------------------------------------------
For the above reasons, the EPA approved Wisconsin's chronic
selenium criterion for Limited Aquatic Life waters as an acceptable
State-specific modification of the EPA's criterion, consistent with
Wisconsin's methods for deriving criteria. The criterion is
scientifically sound and protective of the use, therefore this
criterion is consistent with CWA Sections 101(a)(2) and 303(c)(2), and
40 CFR Parts 131 and 132.
Wisconsin did not adopt the EPA's chronic aquatic life selenium
criterion of 5 [micro]g/L, found in 40 CFR Part 132, for Limited Forage
Fish waters. Wisconsin's basis for not adopting the EPA's criterion is
that Limited Forage Fish waters only support forage fish and
invertebrates, and the EPA's criterion was based on observed effects of
selenium on sportfish (bluegill) in field studies. Instead, Wisconsin
calculated a chronic selenium criterion for Limited Forage Fish waters
based on toxicity studies listed in the EPA's 1987
[[Page 57651]]
selenium aquatic life criteria document (selenite, +4). The EPA did not
use these laboratory toxicity studies as the final basis for the
recommended national selenium criterion of 5 [micro]g/L because these
studies were based on water column-only exposure to selenium. Given the
available data showing the importance of dietary exposure, the EPA's
criteria recommendations are based on field studies that account for
bioaccumulation through the food chain as the main route of the
exposure. The available data indicate that the primary route of
exposure to all fish species is dietary. Consequently, a water column
exposure-based criterion, such as the criterion adopted by Wisconsin
for Limited Forage Fish waters, may not protect aquatic life in these
waters. Therefore, the EPA did not act on Wisconsin's revised chronic
selenium criterion for Limited Forage Fish waters in its July 1, 2009
action approving the other aquatic life criteria. Because Wisconsin
does not have an EPA-approved chronic aquatic life selenium criterion
for Limited Forage Fish Waters, the EPA is not withdrawing the federal
chronic aquatic life selenium criterion for these waters. Therefore,
the federal criteria for chronic selenium will continue to apply to
Wisconsin's Limited Forage Fish waters.
III. Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
This action withdraws federal requirements applicable to Wisconsin
and imposes no regulatory requirements or costs on any person or
entity, does not interfere with the action or planned action of another
agency, and does not have any budgetary impacts or raise novel legal or
policy issues. Thus, it has been determined that this 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
Office of Management and Budget (OMB) review.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
because it is administratively withdrawing Federal requirements that
are no longer needed in Wisconsin. It does not include any information
collection, reporting or recordkeeping requirements. However, the OMB
has previously approved the information collection requirements
contained in the existing regulations 40 CFR Part 131 under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2040-0049. The OMB control numbers for
the EPA's regulations are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have significant economic impact on a substantial number
of small entities. Small entities include small businesses, small
organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of this action on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
This rule imposes no regulatory requirements or costs on any small
entity. Therefore, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under UMRA Section 202, the EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, UMRA Section 205 generally requires the EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of UMRA Section 205
do not apply when they are inconsistent with applicable law. Moreover,
UMRA Section 205 allows the EPA to adopt an alternative other than the
least costly, most cost-effective or least burdensome alternative if
the Administrator publishes with the final rule an explanation of why
that alternative was not adopted. Before the EPA establishes any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
UMRA Section 203 a small government agency plan. The plan must provide
for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of the EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
This rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, Tribal, or local
governments or the private sector because it imposes no enforceable
duty on any of these entities. Thus, this rule is not subject to the
requirements of UMRA Sections 202 and 205 for a written statement and
small government agency plan. Similarly, the EPA has determined that
this rule contains no regulatory requirements that might significantly
or uniquely affect small governments and is therefore not subject to
UMRA Section 203.
E. Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the 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.''
This rule imposes no regulatory requirements or costs on any State
or local governments; therefore, it does not have federalism
implications under Executive Order 13132.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Subject to the Executive Order 13175 (65 FR 67249, November 9,
2000) the EPA may not issue a regulation that has tribal implications,
that imposes substantial direct compliance costs, and that is not
required by statute, unless
[[Page 57652]]
the Federal Government provides the funds necessary to pay the direct
compliance costs incurred by tribal governments, or the EPA consults
with tribal officials early in the process of developing the proposed
regulation and develops a tribal summary impact statement.
The EPA has concluded that this action may have tribal
implications. However, it will neither impose substantial direct
compliance costs on tribal governments, nor preempt Tribal law.
Wisconsin's revised and EPA-approved aquatic life criteria are
identical to, or only slightly less stringent than, the federal
criteria being withdrawn in this rule. In 2009 the EPA determined that
Wisconsin's revised criteria, with the exception of the chronic aquatic
life criterion for selenium in waters designated as Limited Forage Fish
use, adequately protect all waters of the State designated for aquatic
life use at a level consistent with the Guidance and CWA requirements.
Therefore, tribal consultation on this rule is unnecessary.
G. Executive Order 13045 (Protection of Children From Environmental
Health 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 the 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 rule is not subject to Executive Order 13045 because it is not
economically significant and the EPA has no reason to believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children.
H. Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not a
significant regulatory action under Executive Order 12866.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (NTTAA), Public Law 104-113, 12(d)(15 U.S.C. 272 note)
directs the EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. 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 the EPA to
provide Congress, through OMB, explanations when the Agency decides not
to use available and applicable voluntary consensus standards.
This rulemaking does not involve technical standards. Therefore,
the EPA is not considering the use of any voluntary consensus
standards.
J. 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 has determined that this rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations for several reasons.
First, this rule pertains to aquatic life use criteria only which,
based on current science and the EPA's CWA Section 304(a) recommended
criteria, the EPA has previously determined are protective of the
applicable aquatic life designated uses. Second, Wisconsin's revised
and EPA-approved aquatic life criteria apply to all waters in the State
designated for certain aquatic life uses. For these reasons, the EPA
believes that this action will not disproportionately affect any one
group over another in the State of Wisconsin.
K. Congressional Review Act
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 the Congress and to the Comptroller General of the
United States. The 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. A ``major rule''
cannot take effect until 60 days after it is published in the Federal
Register, however this action is not a ``major rule'' as defined by 5
U.S.C. 804(2). This rule will become effective 30 days after
publication in the Federal Register as provided under the
Administrative Procedure Act.
List of Subjects in 40 CFR Part 132
Environmental protection, Administrative practice and procedure,
Great Lakes, Indian lands, Intergovernmental relations, Reporting and
recordkeeping requirements, Water pollution control.
Dated: September 8, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, 40 CFR part 132 is amended
as follows:
PART 132--WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM
0
1. The authority citation for 40 CFR part 132 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
0
2. In Sec. 132.6 paragraphs (f) and (g) are revised to read as
follows:
Sec. 132.6 Application of part 132 requirements in Great Lakes States
and Tribes.
* * * * *
(f) Effective December 6, 2000, the chronic aquatic life criterion
for endrin in Table 2 of this part shall apply to the waters of the
Great Lakes System in the State of Wisconsin designated by Wisconsin as
Warm Water Sportfish and Warm Water Forage Fish aquatic life use.
(g) Effective February 5, 2001, the chronic aquatic life criterion
for selenium in Table 2 of this part shall apply to the waters of the
Great Lakes System in the State of Wisconsin
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designated by Wisconsin as Limited Forage Fish aquatic life use.
* * * * *
[FR Doc. 2011-23817 Filed 9-15-11; 8:45 am]
BILLING CODE 6560-50-P