[Federal Register Volume 65, Number 107 (Friday, June 2, 2000)]
[Rules and Regulations]
[Pages 35283-35286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-13771]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 132

[FRL-6707-7]
RIN 2040-AC08


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Partial revocation of final rule.

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

EFFECTIVE DATE: June 2, 2000.

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

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

SUPPLEMENTARY INFORMATION:

I. Discussion

A. Potentially Affected Entities

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

[[Page 35284]]



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                          Category                                 Examples of potentially affected entities
----------------------------------------------------------------------------------------------------------------
Industry....................................................  Industries discharging or intending to discharge
                                                               selenium to waters in the Great Lakes System as
                                                               defined in 40 CFR 132.2.
Municipalities..............................................  Publicly owned treatment works discharging or
                                                               intending to discharge selenium to waters of the
                                                               Great Lakes System as defined in 40 CFR 132.2.
----------------------------------------------------------------------------------------------------------------

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

B. Background

    On March 23, 1995, EPA promulgated the Final Water Quality Guidance 
for the Great Lakes System (Guidance) required under section 118(c)(2) 
of the Clean Water Act, 33 U.S.C. 1268(c)(2). See 60 FR 15366 (March 
23, 1995). The Guidance protects the waters of the Great Lakes and 
their tributaries by establishing water quality criteria for 29 
pollutants to protect aquatic life, wildlife and human health, and 
detailed methodologies to develop criteria for additional pollutants. 
It also establishes implementation procedures to help Great Lakes 
States and Tribes develop more consistent, enforceable water-quality 
based effluent limits in discharge permits, as well as more consistent 
total maximum daily loads for the Great Lakes System. For a description 
of the environmental significance of the Great Lakes System and the 
serious environmental threats it faces (particularly from persistent, 
bioaccumulative chemicals), see the April 16, 1993, preamble to the 
proposed Guidance (58 FR 20802).
    The ambient water quality criteria included in the Guidance to 
protect aquatic life set maximum ambient concentrations for harmful 
pollutants to be met in all waters in the Great Lakes System. See 40 
CFR part 132, Tables 1 and 2. Great Lakes States and Tribes were 
required to adopt criteria consistent with EPA's criteria by March 
1997. CWA section 118(c)(2)(c). If any State or Tribe fails to adopt 
criteria, EPA must promulgate criteria applying in that State or 
Tribe's jurisdiction. Id. Once the criteria take effect, permits for 
discharges of such pollutants into the Great Lakes System must include 
limits as necessary to attain the criteria.
    EPA promulgated aquatic life criteria for 15 toxic pollutants 
including selenium. The selenium criterion was based on field data from 
Belews Lake in North Carolina. The chronic criterion, or Criterion 
Continuous Concentration (CCC), was set at 5 micrograms per liter 
(<greek-m>g/L) (the concentration of selenium in a portion of Belews 
Lake where no chronic effects were observed). The acute criterion, or 
Criterion Maximum Concentration (CMC), was calculated as 19.34 
<greek-m>g/L (by multiplying the CCC by a laboratory-derived acute to 
chronic ratio and dividing by two). The total recoverable criteria 
published for selenium in part 132 were derived with the same data as 
provided in the criteria document, ``Ambient Water Quality Criteria for 
Selenium--1987'' (EPA 440/5-87-008).
    Several industries and trade associations challenged the acute 
aquatic life criterion, or CMC, for selenium. AISI v. EPA, 115 F. 3d 
979 (1997). Among the issues they raised was that inorganic selenium 
has two oxidation states, selenite and selenate, that have different 
toxicities to aquatic life, and that EPA erred by promulgating a single 
acute criterion that failed to properly account for the two oxidation 
states. EPA re-examined the issue, and decided, that it would be in the 
public interest to propose and provide an opportunity to comment on a 
new approach for deriving a CMC for selenium that takes into account 
not only the different toxicities of the two oxidation states described 
above, but also new data indicating that all forms of selenium are 
additive. EPA requested the reviewing Court to remand the acute 
criterion to allow EPA to propose revisions. On September 19, 1996, the 
U.S. Court of Appeals for the District of Columbia Circuit issued an 
order vacating the acute criterion.

C. Decision to Remove the Aquatic Life CMC for Selenium

    EPA proposed a revised CMC for aquatic life for selenium on 
November 14, 1996 (61 FR 58444). Because EPA intended to promulgate a 
new selenium criterion soon after its 1996 proposal, EPA did not 
immediately withdraw the vacated regulation from the Code of Federal 
Regulations as is its normal practice. However, based on comments 
received on the proposal, as well as earlier comments EPA had received 
on the methodology used to develop the national selenium criteria, EPA 
decided to subject the selenium criteria methodology to a broader 
workgroup and peer review process. While the selenium workgroup and 
peer reviewers have made good progress they are still months away from 
making final recommendations on the selenium CMC. At least one member 
of the public has raised concern that, since the criterion continues to 
appear in the CFR, it appears to remain in effect. EPA agrees that the 
criterion is not in effect, and, since EPA has not been able to replace 
it promptly, removing it will reduce the potential for confusion. 
Therefore, EPA has decided to withdraw the selenium CMC from part 132, 
Table 1(a).
    EPA plans to propose a new selenium CMC for the Great Lakes 
Guidance once the workgroup and peer review process is complete. EPA is 
not removing the 1995 CCC for selenium codified in Table 2(a) to part 
132. EPA is not withdrawing the Clean Water Act section 304(a) criteria 
document for either the acute or the chronic criterion for selenium 
recommended for use in the national program because criteria developed 
for the national program are guidance and States and Tribes may adopt 
other criteria that are scientifically defensible. ``Ambient Water 
Quality Criteria for Selenium--1987'' (EPA 440/5-87-008). EPA will 
consider revising the national document after the workgroup and peer 
reviewers complete their work, and sometime later EPA will propose a 
new Great Lakes criterion. The Court's order does not affect the status 
of either the 1995 CCC for the Guidance or any portion of the national 
criteria document.

D. Consequences of Today's Action

    As a result of today's action, States and Tribes need not adopt or 
submit to EPA for review an aquatic life CMC for selenium for waters of 
the Great Lakes Basin. In the interim, EPA is recommending that States 
and Tribes rely on the aquatic life CCC for selenium in Table 2(a) of 
part 132 when setting

[[Page 35285]]

permit limits. States and Tribes have submitted aquatic life CCC for 
selenium that are as protective as the 1995 Guidance CCC for selenium.

II. ``Good Cause'' Under the Administrative Procedure Act

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

III. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA 
must determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or Tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

IV. Submission to Congress and the General Accounting Office

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

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

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

VI. Unfunded Mandates Reform Act

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

VII. Paperwork Reduction Act

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

VIII. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    Under section 6 of the Executive Order 13132, EPA may not issue a 
regulation that has federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has federalism implications and that preempts State law, unless 
the Agency consults with State and local officials early in the process 
of developing the proposed regulation.
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. Because the AISI Court vacated 
the aquatic life CMC for selenium in 1996, EPA is removing it from the 
final Great Lakes Guidance in 40 CFR part 132. As a result, States and 
Tribes need not adopt or submit to EPA for review an aquatic life CMC 
for selenium for waters of the Great Lakes Basin as part of their part 
132 submission. Thus, the requirements of section 6 of the Executive 
Order do not apply to this rule.

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

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the

[[Page 35286]]

Federal government provides the funds necessary to pay the direct 
compliance costs incurred by the Tribal governments, or EPA consults 
with those governments. If EPA complies by consulting, Executive Order 
13084 requires EPA to provide to the Office of Management and Budget, 
in a separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected Tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    Today's rule does not significantly or uniquely affect the 
communities of Indian tribal governments nor does it impose substantial 
direct compliance costs on them. Today's final rule only withdraws the 
selenium CMC from part 132, Table 1(a) of the final Great Lakes 
Guidance. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this rule.

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

    Executive Order 13045, Protection of Children from Environmental 
Health Risks and Safety Risks (62 FR 19885, April 23, 1997), applies to 
any rule that: (1) Is determined to be ``economically significant'' as 
defined under Executive Order 12866, and (2) concerns an environmental 
health or safety risk that EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866. In 
addition, this rule does not concern an environmental health or safety 
risks that EPA has reason to believe may have a disproportionate effect 
on children. This final rule merely removes the aquatic life CMC for 
selenium from part 132, Table 1(a) of the Guidance, consistent with the 
1996 Court order vacating the acute (CMC) criterion for selenium. In 
the interim, EPA is recommending that States and Tribes rely on the 
aquatic life CCC for selenium in Table 2(a) of part 132 when setting 
permit limits. States and Tribes have submitted aquatic life CCC for 
selenium that are as protective as the 1995 Guidance CCC for selenium.

XI. National Technology Transfer and Advancement Act of 1995

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

List of Subjects in 40 CFR Part 132

    Environmental protection, Administrative practice and procedure, 
Great Lakes, Indians-lands, Intergovernmental relations, Reporting and 
recordkeeping requirements, Water pollution control.

    Dated: May 25, 2000.
Carol M. Browner,
Administrator.
    For the reasons set out in the preamble Title 40, Chapter I of the 
Code of Federal Regulations is amended as follows:

PART 132--WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM

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

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

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

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