[Federal Register Volume 76, Number 51 (Wednesday, March 16, 2011)]
[Proposed Rules]
[Pages 14351-14358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5972]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 132
[EPA-HQ-OW-2010-0492; FRL-9279-6]
RIN 2040-AF23
Proposed Withdrawal of Certain Federal Aquatic Life Water Quality
Criteria Applicable to Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: EPA is proposing to withdraw 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 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. Once finalized, the
withdrawal will enable Wisconsin to implement its EPA-approved aquatic
life criteria.
DATES: Written comments must be received by April 15, 2011.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2010-0492, by one of the following methods:
http://www.regulations.gov: Follow the on-line
instructions for submitting comments.
E-mail: [email protected].
Mail to either: Water Docket, USEPA, Mailcode: 2822T, 1200
Pennsylvania Ave., NW., Washington, DC 20460 or Francine Norling,
Proposed Withdrawal of Certain Federal Aquatic Life Water Quality
Criteria Applicable to Wisconsin, U.S. EPA, Region 5, 77 West Jackson
Boulevard, Chicago, IL 60604, Attention Docket ID No. EPA-HQ-OW-2010-
0492.
Hand Delivery: EPA Docket Center, EPA West Room 3334, 1301
Constitution Ave., NW., Washington, DC 20229 or Francine Norling,
Proposed Withdrawal of Certain Federal Aquatic Life Water Quality
Criteria Applicable to Wisconsin, U.S. EPA, Region 5, 77 West Jackson
Boulevard, Chicago, IL 60604, Attention Docket ID No. EPA-HQ-OW-2010-
0492. Such deliveries are only accepted during the Docket's normal
hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Direct your comments to Docket ID No. EPA-HQ-OW-2010-
0492. EPA's policy is that all comments received will be included in
the public docket without change and may be made available online at
http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. The http://www.regulations.gov Web site
is an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an e-mail comment directly to EPA without
going through http://www.regulations.gov your e-mail address will be
automatically captured and included as part of the comment that is
placed in the public docket and made available on the Internet. If you
submit an electronic comment, EPA recommends that you include your name
and other contact information in the body of your comment and with any
disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. For additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other
[[Page 14352]]
material, such as copyrighted material, will be publicly available only
in hard copy. Publicly available docket materials are available either
electronically in http://www.regulations.gov or in hard copy at two
Docket Facilities. The Office of Water (OW) Docket Center is open from
8:30 a.m. until 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.
Publicly available docket materials are also available in hard copy at
the U.S. EPA Region 5 address. Docket materials can be accessed from 9
a.m. until 3 p.m., Monday through Friday, excluding legal holidays. The
telephone number is (312) 886-0271.
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: [email protected]) or Claudia Fabiano, U.S. EPA
Headquarters, Office of Science and Technology, 1200 Pennsylvania
Avenue, NW., Mail Code 4305T, Washington, DC 20460 (telephone: (202)
566-0446 or e-mail: [email protected]).
SUPPLEMENTARY INFORMATION: This notice is organized as follows:
General Information
What entities may be affected by this action?
What should I consider as I prepare my comments for EPA?
Background
What are the applicable Federal statutory and regulatory
requirements?
Why is EPA withdrawing certain Federal aquatic life water
quality criteria applicable to Wisconsin?
Why is EPA not withdrawing Wisconsin's endrin (chronic) aquatic
life use criterion for waters designated as warm water sportfish and
warm water forage fish use, and selenium (chronic) aquatic life use
criterion for waters designated as limited forage fish use?
What are the applicable Federal aquatic life water quality
criteria that EPA is withdrawing?
Statutory and Executive Order Reviews
Executive Order 12866 (Regulatory Planning and Review)
Paperwork Reduction Act
Regulatory Flexibility Act
Unfunded Mandates Reform Act
Executive Order 13132 (Federalism)
Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
Executive Order 13045 (Protection of Children From Environmental
Health and Safety Risks)
Executive Order 13211 (Actions That Significantly Affect Energy
Supply, Distribution, or Use)
National Technology Transfer and Advancement Act
Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations)
General Information
What entities may be affected by this action?
This rule proposes to withdraw Federally promulgated aquatic life
criteria for chronic and acute copper and nickel for all waters of the
Great Lakes System in the State of Wisconsin designated for aquatic
life uses. This rule also proposes to withdraw Federally promulgated
chronic aquatic life use criteria for endrin for waters designated by
Wisconsin as Cold Water, Limited Forage Fish, and Limited Aquatic Life
Use, and withdraw Federally promulgated chronic aquatic life use
criteria for selenium for waters designated as Cold Water, Warm Water
Sportfish, Warm Water Forage Fish, and Limited Aquatic Life 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 waters
within the Great Lakes System
as defined in 40 CFR 132.2 in
Wisconsin.
Municipalities........................ Publicly-owned treatment works
discharging to waters within
the Great Lakes System as
defined in 40 CFR 132.2 in
Wisconsin.
------------------------------------------------------------------------
To determine whether your facility may be affected by this proposed
withdrawal, examine 40 CFR 132.2, which defines ``Great Lakes System''
and describes the 40 CFR part 132 regulations. 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.
What should I consider as I prepare my comments for EPA?
1. Submitting CBI. Do not submit this information to EPA through
http://www.regulations.gov or e-mail. Clearly mark the part or all of
the information that you claim to be CBI. For CBI information in a disk
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM
as CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI. In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information
claimed as CBI must be submitted for inclusion in the public docket.
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.
2. Tips for Preparing Your Comments. When submitting comments,
remember to:
Identify the rulemaking by docket number and other
identifying information (subject heading, Federal Register date and
page number).
Follow directions--The agency may ask you to respond to
specific questions or organize comments by referencing a Code of
Federal Regulations part or section number.
Explain why you agree or disagree; suggest alternatives
and substitute language for your requested changes.
Describe any assumptions and provide any technical
information and/or data that you used.
If you estimate potential costs or burdens, explain how
you arrived at your estimate in sufficient detail to allow for it to be
reproduced.
Provide specific examples to illustrate your concerns, and
suggest alternatives.
[[Page 14353]]
Explain your views as clearly as possible, avoiding the
use of profanity or personal threats.
Make sure to submit your comments by the comment period
deadline identified.
Background
A. What are the applicable Federal statutory and regulatory
requirements?
In 1995, EPA promulgated a final rule known as ``Water Quality
Guidance for the Great Lakes System'' at 40 CFR part 132, hereinafter
referred to as the ``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.
Under CWA Section 118(c)(2), Great Lakes States were required to adopt
provisions, consistent with the Guidance, into their water quality
standards and NPDES permit programs. In the absence of State action, or
in the case of an EPA disapproval of the revised State water quality
standards, EPA was required to promulgate any necessary requirements
pursuant to the Guidance within a two-year period.
As described in the preamble of the Guidance, when a State adopts
and EPA approves revised numeric water quality criteria applicable to
the Great Lakes System, thereby meeting the requirements of CWA Section
303(c)(2)(B), EPA will publish a notice of approval in the Federal
Register at 40 CFR 132.5(f)(1). If EPA determines that all or part of
the State criteria are inconsistent with the requirements of the CWA or
the Guidance, then EPA will provide notice to the State and identify
changes necessary for EPA approval (40 CFR 132.5(f)(2)). If the State
does not adopt the changes within 90 days of the notification, then EPA
publishes a notice identifying the approved and disapproved elements of
the submission, then a proposed and subsequent final rule (40 CFR
132.5(f)(2)).
B. Why is 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 (40 CFR part 132). In October
2000, EPA disapproved six of Wisconsin's revised aquatic life criteria,
including chronic and acute copper and nickel, and chronic endrin and
selenium. In January 2008, Wisconsin began rulemaking to revise its
water quality standards to address 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), EPA is required to review and
approve new and revised State water quality standards before they can
become effective for CWA purposes. EPA found that Wisconsin's revised
criteria satisfy the Federal requirements for submittal of new or
revised water quality standards by a State to EPA and are consistent
with the CWA and the Guidance requirements. EPA approved Wisconsin's
revised 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.
EPA's approval of Wisconsin's aquatic life criteria makes the
Federally promulgated criteria no longer necessary for compliance with
the CWA. Therefore, EPA has determined that the Federal aquatic life
criteria for chronic and acute copper and nickel, chronic endrin (with
the exception of the aquatic life criterion for waters designated as
Warm Water Forage Fish and Warm Water Sportfish use), and chronic
selenium (with the exception of the aquatic life criterion for waters
designated as Limited Forage Fish use) may be withdrawn.
C. Why is EPA not withdrawing Wisconsin's endrin (chronic) aquatic life
use criterion for waters designated as warm water sportfish and warm
water forage fish use, and selenium (chronic) aquatic life use
criterion for waters designated as limited forage fish use?
On July 1, 2009, EPA approved Wisconsin's revised chronic endrin
aquatic life use criteria for all waters of the Great Lakes System in
the State of Wisconsin designated for aquatic life uses. However, due
to a transcription error, 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
[micro]g/L) is not identical to the criterion that Wisconsin submitted
to EPA and which EPA approved (0.036 [micro]g/L). Therefore, EPA is not
proposing to withdraw the Federal chronic endrin criterion for these
aquatic life uses until after Wisconsin concludes rulemaking to correct
the criterion in the State's regulations.
EPA took no action on Wisconsin's revised chronic selenium
criterion for Limited Forage Fish waters in its July 1, 2009 action
approving the other aquatic life criteria. In summary, 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, EPA is not proposing to
withdraw the Federal chronic aquatic life selenium criterion as it
applies to Wisconsin's Limited Forage Fish waters at this time.
Wisconsin may revise their chronic selenium criterion and submit to EPA
for review and approval.
D. What are the applicable Federal aquatic life water quality criteria
that EPA is withdrawing?
EPA is proposing to withdraw certain Federally promulgated aquatic
life criteria for Wisconsin included in the Guidance (40 CFR 132.6).
Specifically, EPA is proposing to withdraw 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. EPA also is proposing to amend 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 to amend 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. Once finalize, the rule withdrawal will enable Wisconsin to
implement under State law, the EPA-approved aquatic life criteria.
Wisconsin'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,
aquatic life designated uses of Cold Water communities, Warm Water
Sportfish communities, and Warm Water Forage Fish communities 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
[[Page 14354]]
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 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 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 contained in 40 CFR
part 132, applicable to all waters within the Great Lakes Basin (see
Table 2).
Table 2--Acute Copper Criteria Equation
[All surface water classifications]
------------------------------------------------------------------------
EPA criteria maximum concentration Wisconsin acute toxicity
([micro]g/L) criteria ([micro]g/L)
------------------------------------------------------------------------
CMC = exp(0.9422*ln(hardness)) - 1.700. ATC = exp(0.9436*ln(hardness))
1.6036
------------------------------------------------------------------------
The difference between EPA's and Wisconsin's intercept in the
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 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 EPA's 1985 slope calculation used in the Guidance. 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 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 has adopted and 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 surface water classifications]
------------------------------------------------------------------------
EPA Criterion continuous concentration Wisconsin chronic toxicity
([mu]g/L) criteria ([mu]g/L)
------------------------------------------------------------------------
CCC = exp(0.8545*ln(hardness)) - 1.702. CTC = exp(0.8557*ln(hardness))
1.6036
------------------------------------------------------------------------
The difference between EPA's and Wisconsin's copper equation
intercept is primarily due to the elimination of one of the most
sensitive species from the criteria calculation (northern pikeminnow,
genus Ptychocheilus), which is not native to Wisconsin. It is
scientifically defensible for Wisconsin to eliminate from the
calculation data for a non-native species which is not a surrogate for
taxon that are 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 0.8557 is slightly different from 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 EPA's
1985 slope calculation used in the Guidance. 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 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 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 that contained in the Great Lakes Water Quality Guidance,
40 CFR part 132 as well as EPA's CWA Section 304(a) national criteria
guidance (see Table 4). The equation is scientifically sound and
results in criteria that are protective of the use, therefore this
equation is
[[Page 14355]]
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 surface water classifications]
------------------------------------------------------------------------
EPA criteria maximum concentration Wisconsin acute toxicity
([mu]g/L) criteria ([mu]g/L)
------------------------------------------------------------------------
CMC = exp(0.846*ln(hardness)) + 2.255.. ATC = exp(0.846*ln(hardness)) +
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 EPA approved, two chronic nickel aquatic life
criteria equations (see Table 5). The first equation is used to
calculate the chronic nickel aquatic life criterion for Cold Water,
Warm Water Sportfish, Warm Water Forage Fish, and Limited Forage Fish
designated uses. The second equation is used to calculate the chronic
nickel aquatic life criterion for the Limited Aquatic Life designated
use.
Table 5--Chronic Nickel Criteria Equations
------------------------------------------------------------------------
Wisconsin chronic
toxicity criteria
([mu]g/L): Cold Wisconsin chronic
EPA criterion continuous water, warm water toxicity criteria
concentration ([mu]g/L) sportfish, warm ([mu]g/L): Limited
water forage fish, aquatic life
and limited forage
fish
------------------------------------------------------------------------
CCC = CTC = CTC =
exp(0.846*ln(hardness)) + exp(0.846*ln(hardne exp(0.846*ln(hardne
0.0584. ss)) + .0591. ss)) + .4004
------------------------------------------------------------------------
The equation used by Wisconsin for calculating the chronic 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 EPA's 304(a) recommendation. This difference is due to
Wisconsin's use of a slightly different intercept and the acute-chronic
ratio for the Cladoceran test data. The equation for the Limited
Aquatic Life classification has a different value for the intercept
because the fathead minnow data were not included in the calculation.
Fathead minnow data were not included because this species is not
expected to have a fish community in waters designed as Limited Aquatic
Life use.
The regulations at 40 CFR part 132 contain EPA's chronic nickel
aquatic life equation, which is applicable to all waters within the
Great Lakes Basin. For the Cold Water, Warm Water Sportfish, Warm Water
Forage Fish, and Limited Forage Fish water classifications, Wisconsin's
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 the Limited
Aquatic Life water classification, the elimination of data for a non-
resident species is an appropriate State-specific modification of EPA's
equation. Wisconsin's equation is scientifically sound and results in
criteria that are protective of the use, therefore Wisconsin's Limited
Aquatic Life equation is 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 EPA reviewed and approved a chronic endrin
criterion for Cold Water, Warm Water Forage Fish, and Warm Water
Sportfish classifications that is identical to 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 aquatic
life use endrin 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 EPA and which EPA approved (0.036 [micro]g/L).
Therefore, 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.
Table 6--Chronic Endrin Aquatic Life Criteria
----------------------------------------------------------------------------------------------------------------
Wisconsin chronic toxicity criteria
EPA criterion continuous ([mu]g/L): Cold water, warm water Wisconsin chronic toxicity criteria
concentration ([mu]g/L) forage fish, and warm water ([mu]g/L): Limited forage fish and
sportfish limited aquatic life
----------------------------------------------------------------------------------------------------------------
0.036 0.036 0.050
----------------------------------------------------------------------------------------------------------------
Wisconsin's criterion for Limited Aquatic Life and Limited Forage
Fish waters is higher than EPA's 304(a) recommendation. This is due to
the fact that three of the four most sensitive genera used to calculate
EPA's criterion do not exist in Limited Aquatic Life and Limited Forage
Fish waters in Wisconsin. These species are Perca (yellow perch),
Lepomis (bluegill), and micropterus (largemouth bass). Instead,
Wisconsin used data for the following
[[Page 14356]]
genera for the endrin criterion calculation for Limited Forage Fish
Waters: Pteronarcys (stonefly), which was also used by EPA; Cyprinus
(carp); Piemphales (fathead minnow); and Pteronarcella (stonefly). When
the fathead minnow data 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 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
Wisconsin adopted revised chronic aquatic life criteria for
selenium as reflected in Table 7. EPA reviewed and approved the revised
selenium criteria for Cold Water, Warm Water Sportfish, and Warm Water
Forage Fish classifications, which are identical to EPA's selenium
criteria in 40 CFR part 132. The criteria are scientifically sound and
protective of the uses, therefore they are 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 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 EPA's recommended 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 EPA's 1987 selenium aquatic life criteria
document (selenite, +4). Wisconsin's value of 46.5 [mu]g/L is slightly
different than EPA's calculated criterion of 44.72 [mu]g/L, because
Wisconsin removed the data for two saltwater species used in EPA's
calculation.
Wisconsin's chronic aquatic life selenium criterion of 46.5 [mu]g/L
for Limited Aquatic Life waters is consistent with the protection
provided for aquatic life in Limited Aquatic Life waters, for the
following reasons:
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).
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 to 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 EPA's 1987 selenium criteria document. Given these reasons,
EPA approved Wisconsin's chronic selenium criterion for Limited Aquatic
Life waters as an acceptable State-specific modification of 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.
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\1\ Lemly, 2002. Selenium Assessment in Aquatic Ecosystems: A
Guide for Hazard Evaluation. Springer Series on Environmental
management. Page 23.
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Wisconsin did not adopt EPA's chronic aquatic life selenium
criterion of 5 [mu]g/L, found in 40 CFR part 132, for Limited Forage
Fish waters. Wisconsin's basis for not adopting EPA's recommendation is
that Limited Forage Fish waters only support forage fish and
invertebrates, and EPA's recommended criterion was based on observed
effects of selenium on sportfish (blue gill) in field studies. Instead,
Wisconsin calculated a chronic selenium criterion for Limited Forage
Fish waters based on toxicity studies listed in EPA's 1987 selenium
aquatic life criteria document (selenite, +4).
EPA did not use these laboratory toxicity studies as the final
basis for the recommended national selenium criterion of 5 [mu]g/L
because these studies were based on water column-only exposure to
selenium. Given the available data showing the importance of dietary
exposure, 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, 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, at this time EPA is not
proposing to withdraw this Federal chronic aquatic life selenium
criterion. Therefore, EPA's Federally promulgated criteria will
continue to apply to Wisconsin's Limited Forage Fish waters.
[[Page 14357]]
Statutory and Executive Order Reviews
A. Executive Order 12866 (Regulatory Planning and Review)
This action proposes to withdraw 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
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, 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 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 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 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 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, 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 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)
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This rule imposes no
regulatory requirements or costs on any Tribal government. It does not
have substantial direct effects on Tribal governments, the relationship
between the Federal government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian Tribes, as specified in Executive Order 13175.
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 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.
[[Page 14358]]
This rule is not subject to Executive Order 13045 because it is not
economically significant and 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 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 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,
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.
EPA has determined that this rule will not have disproportionately
high and adverse human health or environmental effects on minority or
low-income populations because (1) since Wisconsin's criteria apply to
all marine waters in the State, EPA does not believe that this action
would disproportionately affect any one group over another, and (2) EPA
has previously determined, based on the most current science and EPA's
CWA Section 304(a) recommended criteria, that Wisconsin's adopted and
EPA-approved criteria are protective of human health and aquatic life.
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: March 7, 2011.
Lisa P. Jackson,
Administrator.
For the reasons set out in the preamble, 40 CFR Part 132 is
proposed to be amended as follows:
PART 132--WATER QUALITY GUIDANCE FOR THE GREAT LAKES SYSTEM
Authority: 33 U.S.C. 1251 et seq.
Section 132.6 is amended by revising paragraphs (f) and (g) to read
as follows:
Sec. 132.6 Application of part 132 requirements in Great Lakes States
and Tribes.
* * * * *
(f) Effective [insert date to be determined in final rule], 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 as Warm Water Sportfish and Warm Water Forage
Fish aquatic life use. Effective [insert date], the criterion for acute
and chronic copper and nickel in Tables 1 and 2 of this part may be
removed and reserved.
(g) Effective [insert date to be determined in final rule], 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, designated by Wisconsin as Limited Forage Fish aquatic life
use.
* * * * *
[FR Doc. 2011-5972 Filed 3-15-11; 8:45 am]
BILLING CODE 6560-50-P