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[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
------------------------------------------------------------------------
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
----------------------------------------------------------------------------------------------------------------
                                       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
----------------------------------------------------------------------------------------------------------------

    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
----------------------------------------------------------------------------------------------------------------
                                       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
----------------------------------------------------------------------------------------------------------------

    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

[[Page 57653]]

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
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