Proposed Selenium Criterion Maximum Concentration for the Water Quality Guidance for the Great Lakes System; Proposed Rule

[Federal Register: November 14, 1996 (Volume 61, Number 221)]
[Proposed Rules]
[Page 58443-58449]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 58443]]

Part III

Environmental Protection Agency

40 CFR Part 132

Proposed Selenium Criterion Maximum Concentration for the Water Quality
Guidance for the Great Lakes System; Proposed Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 132

[FRL-5649-7]

Proposed Selenium Criterion Maximum Concentration for the Water
Quality Guidance for the Great Lakes System

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing a new acute aquatic life criterion for
selenium in the final Water Quality Guidance for the Great Lakes System
(the Guidance) that was published on March 23, 1995. The U.S. Court of
Appeals for the D.C. Circuit vacated the 1995 acute selenium criterion
on September 19, 1996. The proposal takes into account data showing
that selenium's two most prevalent oxidation states, selenite and
selenate, present differing potentials for aquatic toxicity, as well as
new data indicating that all forms of selenium are additive. Additivity
increases the toxicity of mixtures of different forms of the pollutant.
The new approach produces a different selenium acute criterion (also
called the Criterion Maximum Concentration, or CMC) depending upon the
relative proportions of selenite, selenate, and other forms of selenium
that are present. EPA believes that the proposed revisions more
accurately represent the numerical limits for acute criteria for
selenium necessary to protect aquatic life in the Great Lakes System.
EPA is not proposing to revise any other aspect of the selenium
criteria for aquatic life.

DATES: EPA will accept public comments on the proposal until December
16, 1996.

ADDRESSES: An original and 4 copies of all comments on the proposal
should be addressed to Mark Morris (4301), U.S. EPA, 401 M Street., SW,
Washington, D.C. 20460.

FOR FURTHER INFORMATION CONTACT: Mark Morris (4301), U.S. EPA, 401 M
Street, SW, Washington, D.C. 20460 (202-260-0312).

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Potentially Affected Entities

Entities potentially affected by this action are those discharging
pollutants to waters of the United States in the Great Lakes System.
Potentially affected categories and entities include:

Examples of Potentially Affected
Category Entities

Industry............................ Industries discharging selenium to

waters in the Great Lakes System
as defined in 40 CFR 132.2.

Municipalities...................... Publicly-owned treatment works

discharging selenium to waters of
the Great Lakes System as defined
in 40 CFR 132.2.

States & Tribes..................... Great Lakes States and Tribes must

adopt criteria consistent with
EPA's criteria by March 1997.

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 may be affected by this action, you should examine the
definition of Great Lakes System in 40 CFR 132.2 and examine 40 CFR
132.2 which describes the purpose of water quality standards such as
those established in this rule. 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. Great Lakes Water Quality Guidance

In March 1995, EPA promulgated the final Water Quality Guidance for
the Great Lakes System (the Guidance) required under section 118(c)(2)
of the Clean Water Act, 33 U.S.C. 1268(c)(2). See 60 FR 15366-15425
(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 limits on 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 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 must adopt
criteria consistent with EPA's criteria by March of 1997. CWA Section
118(c)(2)(c). If any State or Tribe fails to meet that deadline, 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 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 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 for selenium. AISI v. EPA, D.C. Cir. No. 95-1348
and consolidated cases. 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.
As a result of the Court's order, the 1995 acute criterion for
selenium is no longer effective. Normally, EPA would respond to a
vacatur by promulgating an immediately effective final rule withdrawing
the vacated regulation from the Code of Federal Regulations. This helps
inform all interested members of the public that the rule is no longer
in effect. In this case,

[[Page 58445]]

however, EPA intends to promulgate a new selenium criterion as soon as
possible and certainly before the next publication of the CFR.
Consequently, EPA does not intend to publish a separate notice
announcing the withdrawal of the acute criterion.
The action to promulgate a new CMC for selenium for the Guidance is
a rulemaking subject to the notice and comment requirements of the
Administrative Procedure Act, 5 U.S.C. 551 et seq. If EPA promulgates a
final CMC for selenium, it will codify it in Table 1(a) to Part 132.
Great Lakes States and Tribes will be required to modify their current
acute selenium criteria if they are not as protective as the final,
revised criterion. Should any State or Tribe fail to make required
modifications, EPA would promulgate a CMC for selenium identical to the
revised CMC without an additional round of notice and comment.
As explained in more detail below, EPA is not proposing any
revisions to the 1995 CCC for selenium codified in Table 2(a) to Part
132. Nor is EPA proposing at this time to amend the 304(a) criteria
document for either the acute or the chronic criterion for selenium
used in the national program. ``Ambient Water Quality Criteria for
Selenium--1987'' (EPA 440/5-87-008). EPA will consider revising the
national document at some future time. The Court's order does not
affect the status of either the 1995 CCC for the Great Lakes Guidance
or any portion of the national criteria document. EPA does not intend
to respond to comments raising issues outside the scope of this
proposal.

II. Derivation of the Current Criterion for Selenium

When EPA published a recommended freshwater aquatic life criterion
for selenium in 1987, it considered both field data on chronic toxicity
from Belews Lake in North Carolina and laboratory data showing chronic
effects. A comparison of the data indicated that selenium was more
toxic to aquatic life in the field than in standard laboratory toxicity
tests. Consequently, to ensure that the criterion would protect aquatic
life, EPA derived a chronic criterion, or Criterion Continuous
Concentration (CCC) of 5 <greek-m>g/L for total recoverable selenium
from the field data. Because the Belews Lake study did not distinguish
between selenite, selenate, and any other form of selenium, and because
some forms of selenium can convert to other forms over time (U.S. EPA,
1987), EPA established a single CCC for selenium rather than a separate
CCC for selenite and/or selenate.
EPA reasoned that acute effects would also be more severe in the
field than in the laboratory. EPA, however, was not able to find any
field studies assessing acute effects. Consequently, EPA backcalculated
the CMC from the field-derived CCC for total selenium,
arriving at a value of 19.98 <greek-m>g/L, which it rounded to 20
<greek-m>g/L. See ``Ambient Water Quality Criteria for Selenium--1987''
(EPA-440/5-87-006).
EPA noted that, had it concluded that laboratory data could serve
as a basis for the selenium criteria, there were sufficient laboratory
studies on acute effects to establish separate CMCs for both selenate
and selenite. EPA calculated that a CMC for selenite (selenium IV)
based on laboratory data might have been 185.9 <greek-m>g/L, while a
CMC for selenate (selenium VI) might have been 12.82 <greek-m>g/L. As
explained above, however, EPA chose to base the CMC on field data that
did not differentiate between selenite and selenate.
When EPA proposed and promulgated selenium criteria for the Water
Quality Guidance for the Great Lakes System, it used the same fielddata
approach and calculated a CMC of 19.34 <greek-m>g/L for all forms
of selenium. See ``Great Lakes Water Quality Initiative Criteria
Documents for the Protection of Aquatic Life in Ambient Water'' (EPA-
820-B-95-004).
EPA is not proposing today any revision to the CCC of 5 <greek-m>g/
L for selenium. The chronic criterion addresses longer-term exposures
to selenium under field conditions, including exposure through the food
chain. EPA has no field data that can support different chronic
criteria for different forms of selenium. Furthermore, EPA believes
that current studies show that the various forms of selenium
``interconvert'' to other forms over these longer time frames, so that
the relative proportions of the different forms change during the
exposure period. A form that exhibits low toxicity at one point during
the exposure period may convert to a different, more toxic form at a
different point.

III. Proposed Criterion Maximum Concentration for Selenium

EPA is proposing a revision to the approach used in the final
Guidance. EPA is proposing a new CMC for total selenium based on more
recent studies which indicate that the toxicities of all forms of
selenium are additive. EPA is proposing an equation that will allow
calculation of a CMC for selenium based on the relative proportions of
selenite, selenate and other selenium forms present in a specific water
body. The toxicities for selenite and selenate used in this equation
are based on the laboratory studies cited in the 1987 and 1995 selenium
criteria documents, and are identical to the values calculated in the
those documents.

A. Peer Review of Initial Draft of Revisions

In July 1996 EPA prepared a draft addendum to the criteria document
for the final Guidance setting out the new basis for a CMC for selenium
described above. See ``The Freshwater CMC for Selenium: Addendum to
Ambient Water Quality Criteria for Selenium--1987'' (U.S. EPA, July 7,
1996) (the ``peer review draft'') in the docket for today's proposed
action. In August 1996 this document was submitted to three external
reviewers for scientific peer review. Pages 3-1 through 3-3 of the peer
review draft presented EPA's new data on additivity and a new equation
for deriving a CMC that took into account the different toxicities of
different selenium forms. Generally, the peer reviewers supported this
approach. EPA made minor revisions to this portion of the July 1996
document and is today proposing to incorporate it as an addendum to the
final Guidance criteria document for selenium. See ``The Freshwater CMC
for Selenium: Addendum to Ambient Water Quality Criteria for Selenium--
1987'' (U.S. EPA, September 30, 1996)
A second portion of the July 1996 peer review draft (pages 3-3
through 3-6) presented the theory that fish in the field are exposed to
organic selenium that accumulates in their food sources, and, as a
result, carry a ``body burden'' of selenium that makes them more
sensitive to discharges of selenium to ambient water. It also presented
a sample calculation of a CMC which accounted for this body burden. The
peer reviewers generally thought the theory deserved further
investigation, but were concerned about the current lack of supporting
data. Due to the lack of empirical support, EPA has decided neither to
propose to base the CMC for selenium for the Guidance on this theory
nor to recommend that States or Tribes use this theory by including it
in the addendum to the criteria document for the final Guidance.
Therefore, EPA is not requesting comment on this portion of the peer
review draft. EPA hopes to investigate this theory further at some time
in the future.
Finally, the July 1996 peer review draft included a section
entitled ``Appendix: Three Kinds of Pollutants'' (pages 3-8 through 3-
12) setting out the theory that pollutants affecting aquatic life
should be grouped into three

[[Page 58446]]

categories based on their bioconcentration and bioaccumulation factors.
It recommends that, for 2 of the 3 categories, EPA and the States and
Tribes should take into account the ``body burden'' of the pollutant
that the fish in the field accumulate by eating food that has
accumulated the same pollutant. EPA did not specifically request
comment on this appendix in its charge to the peer reviewers; however,
the reviewers were concerned about the lack of data on ``body burden''
for selenium and would probably have similar concerns about the broader
application of the theory set out in the appendix. Due to the need to
expedite this rulemaking so that EPA can take final action before the
States and Tribes are required to submit their Great Lakes Guidance
implementation programs to EPA for review, EPA is not requesting
comment on this broader theory at this time. EPA encourages research on
this theory and hopes to investigate it further in the future.

B. Today's Proposal

Selenium Chemistry
Selenium takes several forms in ambient waters which can
significantly alter its toxicity to aquatic life, as shown below.
Inorganic selenium has two oxidation states (i.e., selenium IV, or
selenite, and selenium VI, or selenate), which can exist simultaneously
in aerobic surface water at pH 6.5 to 9.0. Chemical conversion from one
oxidation state to another often proceeds at such a slow rate in
aerobic surface water that thermodynamic considerations do not
determine the relative concentrations of the oxidation states. Although
selenate (selenium VI) is thermodynamically favored in oxygenated
alkaline water, substantial concentrations of both organoselenium
(selenium minus II) and selenite (selenium IV) are not uncommon (Burton
et al. 1980; Cutter and Bruland 1984; Measures and Burton 1978; North
Carolina Department of Natural Resources and Community Development
1986; Robberecht and Van Gricken 1982; Takayanagi and Cossa 1985;;
Takayanagi and Wong 1984a,b: Uchida et al. 1980).
Various forms of organic selenium also occur in water (Besser et
al. 1994; Cutter 1991). Toxicity data for some organic selenium forms
are available and are compared below to toxicity data for selenite and
selenate:

C. Riparius C. Riparius
Compound Zebrafish a b,c,d (mg/L) b,c,d (mg/L) Daphne magna e
(mg/L) (mg/L)

Selenate........................................ 18 .0 16.2 10.5 2.84
Seleno-DL-cystine............................... 12.0 .............. .............. 2.01
Selenite........................................ 1.0 7.95 14.6 0.55
Seleno-DL-methionine............................ 0.1 .............. .............. 0.31
Seleno-L-methionine............................. .............. 5.78 6.88 ..............

a. 10-day LC50 (Niimi and LaHam 1976).
b. 48-hr LC50 (Ingersoll et al. 1990).
c. River Water.
d. 48-hr LC50 (Maier et al. 1993).
e. 48-hr LC50 (Maier et al. 1993).

Cutter (1991) described methods for measuring total recoverable and
dissolved selenate, selenite, organoselenium, and selenium in water,
and other information concerning the measurement of selenium in water
has been published by Besser et al. (1994), McKeown and Marinas (1986),
Pitts et al. (1994), and Takayanagi and Cosa (1985).
2. Additivity
EPA believes that recent studies demonstrate the acute toxicities
of selenate, selenite, and one form of organoselenium are additive;
that is, these forms are more toxic together then they are separately.
(Hamilton and Buhl 1990; Maier et al. 1993). The studies demonstrated
additivity by comparing the toxicities of mixtures to the toxicities of
the separate toxicants. Thus, EPA believes that it would be appropriate
to establish separate CMCs for selenate and selenite only in situations
in which either selenate or selenite is the only form of selenium in
the water column. When more than one form occurs in the water,
additivity should be taken into account so that the CMC for selenium is
a function of the toxicities and concentrations of the forms. EPA is
proposing an equation that can be used to derive an appropriate
criterion for total selenium based on the relative concentrations of
selenite, selenate, and all other forms of selenium found in a
particular water body.
3. Toxicity of Three Categories of Selenium
a. Selenium (IV). EPA is proposing to rely on the laboratory data
contained in the 1987 and 1995 criteria documents to establish that the
acute toxicity for selenite is 12.83 <greek-m>g/L.
b. Selenium (VI). EPA is proposing to rely on the laboratory data
contained in the 1987 and 1995 criteria documents to establish an acute
toxicity of 185.9 <greek-m>g/L for selenate.
c. Other Forms of Selenium. EPA has not found and believes that
sufficient toxicity data do not exist to allow derivation of CMCs for
other selenium compounds. Nevertheless, as indicated in the previous
table, the acute toxicity of such other forms of selenium appears to be
significant with toxicity increasing by as much as 180 times depending
on the form of selenium and the test organism. Toxicity tests conducted
on the other forms of selenium indicate that they can be more toxic
than selenate and selenite. Consequently, in order not to ignore the
toxicity of these other forms of selenium, EPA is proposing to assume
that half of the measured or derived concentration of ``other''
selenium forms is as toxic as selenate and half is as toxic as
selenite. EPA believes this default assumption is more reasonable than
assuming either that the entire quantity of ``other forms'' is as toxic
as either selenate or selenite, or that it is not toxic. Such
assumptions would be more likely to over-predict or under-predict the
toxicity of this ``other forms'' category. EPA is also reluctant to
compute any type of ``average'' from the toxicity data on ``other
forms'' presented in the table above. These data are quite sparse.
Moreover, they reflect only organic selenium forms, and the toxicities
of other inorganic forms and compounds may be quite different. EPA
notes that at least one of the peer reviewers endorsed the proposed
approach as an adequate ``rule of thumb'' in the absence of more
specific data. EPA solicits comments on this approach and any
alternatives that might be preferable.

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4. Equation
Additive toxicity means that the concentrations of the different
forms should be added together after adjusting for the relative
toxicity of each. For a single toxicant the goal is for the
concentration, c, to be less than or equal to the criterion, CMC; that
is, the ratio c/CMC <ls-thn-eq> 1. For additive toxicants the goal is
for the sum of such ratios to be less than or equal to 1. Thus, for two
forms of selenium with additive acute toxicities, the concentration of
each form should be controlled such that:
[GRAPHIC] [TIFF OMITTED] TP14NO96.000

where c<INF>1 is the concentration of selenite and other selenium
assumed to have the toxicity of selenite, c<INF>2 is the concentration
and selenate and other selenium assumed to have the toxicity of
selenate; and CMC<INF>1 and CMC<INF>2 are the CMCs for selenite and
selenate respectively. A Criterion Maximum Concentration, CMC<INF>Se,
for the combined additive forms of selenium can then be calculated from
the following equation, which is derived from the previous one:
[GRAPHIC] [TIFF OMITTED] TP14NO96.001

where f<INF>1 and f<INF>2 are the fractions of total selenium that are
treated as selenite and selenate respectively (that is,
f<INF>1=c<INF>1/c<INF>Se and c<INF>Se=c<INF>1+c<INF>2), and
f<INF>1+f<INF>2=1.
The above equations, when coupled with the assumption that half of
the other selenium (including organoselenium) has the toxicity of
selenite and half has the toxicity of selenate, behave as follows. If
the concentrations of selenite and other selenium are zero (c<INF>1=0)
then the Criterion Maximum Concentration (CMC<INF>Se) would be
calculated to be 12.82 <greek-m>g/L, the CMC of selenate. On the other
hand, if the concentrations of selenate and other selenium are zero,
then CMC<INF>Se would be calculated to be 185.9 <greek-m>g/L, the CMC
of selenite.
If the concentrations of selenite and selenate are equal, then
f<INF>1=f<INF>2=0.5 (in this special case irrespective of the
concentration of other selenium), and CMC<INF>Se would be calculated to
be 23.99 <greek-m>g/L. In this case, because the total toxicity of the
selenite is half as small compared to that of the selenate half, the
CMC for selenium is almost (but not quite) double the CMC for selenate.
5. Total Recoverable/Dissolved Concentrations
The CMCs presented above are for total recoverable selenium. The
final Guidance, however, expressed a preference for expressing metals
criteria in dissolved form because that form more closely approximates
the bioavailable fraction of the metal in the water column. See 60 FR
15373 (March 23, 1995). The Guidance therefore incorporated a
methodology for converting total recoverable metals criteria into
dissolved metals criteria using appropriate conversion factors.
Consequently, EPA is proposing the conversion factor described below
for the Part 132 CMC for selenium. Consistent with the position taken
in the preamble to the final Guidance, EPA would promulgate the CMC for
selenium in the dissolved form if a State or Tribe failed to adopt an
approvable criterion.
On the basis of results of simulation tests, Stephan (1995) derived
a CMC conversion factor of 0.996 to convert a total recoverable CMC for
selenite to a dissolved CMC for selenite. No simulation tests were
conducted on selenate, and so 0.996 will be used as a default
conversion factor for selenate because both selenate and selenite are
oxyions, which are expected to be predominantly dissolved.
The conversion factor of 0.996 was derived on page G-7 of the March
11, 1995 draft document ``Derivation of Conversion Factors for the
Calculation of Dissolved Freshwater Aquatic Life Criteria for Metals.''
Page G-8 of this draft explains that the freshwater CCC for selenium is
based on data from Belews Lake and that 92.2 percent of the selenium in
the water column in Belews Lake was dissolved. Because the CMC in the
final Guidance had been back-calculated from the CCC, the conversion
factor of 0.922 was applied to both the CMC and the CCC (60 FR 15391-
15399, March 23, 1995). In today's proposal, EPA is deriving the
freshwater CMC for selenium on the basis of laboratory acute toxicity
tests. Consequently, it is appropriate to use the conversion factor of
0.996 for the acute criterion.

IV. Request for Public Comment

EPA is requesting comment on the data and approach for deriving the
proposed CMC for selenium. Specifically, EPA is requesting comment on
the scientific basis for establishing the additivity of the toxicities
of the various forms of selenium (selenate, selenite, and other
selenium compounds). EPA also requests comments on the procedure used
to account for the additivity of the various forms of selenium in the
criterion derivation algorithm. EPA is not requesting comment on the
CCC for selenium or on the general methodology for deriving aquatic
life criteria for the Great Lakes Guidance.

V. 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.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is not a ``significant regulatory action''
and is therefore not subject to OMB review.
Once promulgated, the acute selenium criterion in today's proposal
is not an enforceable criterion until adopted by States or Tribes, or
promulgated by EPA for a particular State or Tribe. Therefore, once
published as part of the Guidance, the proposed acute selenium
criterion will not have an immediate effect on dischargers. Until
actions are taken to promulgate and implement the acute selenium
criterion (or an equally protective criterion consistent with the Tier
I and Tier II methodologies for aquatic life in the 1995 Guidance--60
FR 15373, March 23, 1995), there will be no economic effect on any
dischargers.
Under the CWA, costs cannot be a basis for adopting water quality
criteria that will not be protective of designated uses. If a range of
scientifically defensible criteria that are protective can be
identified, however, costs may be considered in selecting a particular
criterion within that range. EPA assessed compliance costs for
facilities that could be affected by provisions adopted by States or
Tribes consistent with the 1995 Guidance. See ``Regulatory Impact
Analysis of the Final Great Lakes Water Quality Guidance'' (EPA 820-B-
95-011). In the

[[Page 58448]]

regulatory impact analysis (RIA) for the 1995 Guidance an acute
selenium criterion of 19.34 <greek-m>g/L was evaluated and shown to
have a minimal impact on facilities in the Great Lakes System because
many of the Great Lakes States currently implement selenium criteria
adopted under the national program that are similar in stringency.
Today's proposal is limited to the method for deriving a selenium
acute criterion ranging from approximately 13 to 186 <greek-m>g/L,
depending on the relative proportions of the various forms of selenium
in a facility's discharge. Thus, the method will in many cases result
in a selenium acute criterion less stringent than the selenium criteria
currently being implemented by the Great Lakes States under the
national program, or the criterion that would be developed using
existing toxicity data on selenium and the Tier I or Tier II
methodologies in the 1995 Guidance. For these reasons, EPA has
determined that the acute selenium criterion in today's proposal does
not meet the definition of a ``significant regulatory action'' and is
therefore not subject to OMB review.

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

The Regulatory Flexibility Act (RFA) provides that, whenever an
agency is required to publish a general notice of rulemaking for a
proposed rule, the agency must prepare regulatory flexibility analyses
for the proposed and final rule unless the head of the agency certifies
that it will not have a significant economic impact on a substantial
number of small entities. Regulatory flexibility analyses are to focus
on the regulatory requirements small entities will be required to meet
as a result of the rule and ways to tailor those requirements to reduce
the burden on small entities. Mid-Tex Electric Cooperative, Inc. v.
FERC, 773 F.2d 327 (D.C. Cir. 1985).
In view of the RFA's purpose and its requirements for regulatory
flexibility analyses, EPA believes that today's proposal to replace the
vacated acute selenium criterion in the 1995 Guidance with a new method
for deriving the criterion will not have a significant economic impact
on small entities within the meaning of the RFA. The proposal, if
promulgated, will not itself establish any requirements that apply to
small entities. Rather, the proposal will establish a minimum water
quality criterion for selenium (by establishing a method for
determining that criterion). Following publication, the Great Lakes
States and Tribes must adopt water quality standards that are
consistent with the promulgated method. In the event that a Great Lakes
State or Tribe fails to adopt a standard or adopts a standard that is
not consistent with the promulgated criterion, EPA will promulgate a
criterion for the State or Tribe. Any economic impact on small entities
will result, if at all, only as a consequence of later, discretionary
State or Tribal decisions about how to implement any criterion a State
or Tribe subsequently adopts (or has promulgated for it). Accordingly,
the Administrator certifies that this proposal will not have a
significant economic impact on a substantial number of small entities.
While there is no statutory requirements for regulatory flexibility
analyses with respect to EPA's action in establishing a revised
selenium criterion, EPA did generally assess the potential impact on
small entities that the 1995 Great Lakes Guidance would have if it were
adopted by States and Tribes. It found that the Guidance as a whole
would impose costs of only approximately $500 per small facility. (60
FR 15383, March 23, 1995). Since the acute selenium criterion is only
one of the many requirements imposed by the 1995 Guidance, EPA does not
believe that the costs of complying with the revisions to the
criterion, as proposed today (if adopted by States and Tribes) would
exceed that $500 per facility estimate. This provides an additional
basis for EPA's belief that there will be no significant impact on a
substantial number of small entities based on State or Tribal adoption.
Consequently, pursuant to section 605(b) of the RFA, the Administrator
certifies that the proposed rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities.

VII. 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 section 202 of the UMRA, 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, section 205 of the UMRA 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 section 205
do not apply when they are inconsistent with applicable law. Moreover,
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 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 section 203 of the UMRA a
small government agency plan. The plan must provide for notifying
potentially affected small governments, enabling officials of the
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.
As noted above, this rule is limited to the method for deriving a
selenium acute criterion, which in many cases will result in an aquatic
life criterion for selenium less stringent than the selenium criteria
currently being implemented by the Great Lakes States under the
national program, or that would be developed and implemented using
existing toxicity data on selenium and the Tier I or Tier II
methodologies in the 1995 Guidance, if adopted by States or Tribes. In
those few cases where the selenium acute criterion is more stringent
than those currently being implemented by the Great Lakes States, or
that would be implemented using the Tier I or Tier II methodologies in
the Guidance, it is not significantly more stringent. Therefore, if
States or Tribes adopt criteria consistent with today's proposal, they
will reduce, in more cases than not, any adverse economic impact that
might have been imposed by their current selenium criteria, or selenium
criteria developed and implemented using the Tier I and Tier II
methodologies in the 1995 Guidance. Consequently, EPA has determined
that this rule contains no regulatory requirements that might
significantly or uniquely affect small governments. EPA has also
determined that this rule does not contain a Federal mandate that may
result in expenditures of $100 million or more for State, local, and
Tribal governments, in the aggregate, or the private sector in any one
year. Thus, today's proposed rule is

[[Page 58449]]

not subject to the requirements of sections 202 and 205 of the UMRA.

VIII. Paperwork Reduction Act

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

IX. References

Besser, J.M., J.N. Huckins, and R.C. Clark. 1994. Separation of
selenium species released from se-exposed algae. Chemosphere 29:771-
780.
Burton, J.D., W.A. Maher, C.I. Measures and P.J. Statham. 1980.
Aspects of the distribution and chemical for of selenium and arsenic
in ocean waters and marine organisms. Thalassia Jugosl. 16:155-164.
Cutter, G.A., and K.W. Bruland. 1984. The Marine Biogeochemistry
of Selenium: A Re-evaluation. Limnol. Oceanogr. 29:1179-1192.
Cutter, G.A. 1991. Selenium Biogeochemistry in Reservoirs.
Volume 1: Time Series and Mass Balance Results. EN-7281, Volume 1.
Electric Power Research Institute, Palo Alto, CA.
Hamilton, S.J., and K.J. Buhl. 1990. Acute Toxicity of Boron,
Molybdenum, and Selenium to Fry of Chinook Salmon and Coho Salmon.
Arch. Environ. Contam. Toxicol. 19:366-373.
Ingersoll, C.G., F.J. Dwyer, and T.W. May. 1990. Toxicity of
inorganic and organic selenium to Daphnia magna (Cladoceran) and
Chironomus riparius (Diptera). Environ. Toxicol. Chem. 9:1171-1181.
Maier, K.J., C.G. Foe, and A.W. Knight. 1993. Comparative
Toxicity of Selenate, Selenite, and Seleno-DL-Methionine and SelenoDL
-Cystine to Daphnia magna. Environ. Toxicol. Chem. 12:755-763.
Measures, C.I. and J.D. Burton. 1978. Behaviour and speciation
of dissolved selenium in estuarine waters. Nature. 273:293-295.
McKeown, B., and B. Marinas. 1986. The Chemistry of Selenium in
an Aqueous Environment. In: Selenium in the Environment. Slocxum, D.
(ed.). California Agricultural Technology Institute, California
State University, Fresno, CA. pp.7-15.
Niimi, A.J. and Q.N. LaHam. 1976. Relative toxicity of organic
and inorganic compounds of selenium to newly hatched zebrafish
(Brachydanio rerio). Can. J. Zool. 54:501-509.
North Carolina Department of Natural Resources and Community
Development. 1986. North Carolina water quality standards
documentation: The freshwater chemistry and toxicity of selenium
with an emphasis on its effects in North Carolina. Report No. 86-02.
Raleigh, NC.
Pitts, L., P.J. Worsfold, and S.J. Hill. 1994. Selenium
Speciation--A Flow Injection Approach Employing On-Line Microwave
Reduction Followed by Hydride Generation-Quartz Furnace Atomic
Absorption Spectrometry. Analyst 119:2785-2788.
Robberecht, H. and R. Van Grieken. 1982. Selenium in
environmental waters: Determination, speciation and concentration
levels. Talanta. 29:823-844.
Takayanagi, K. and G.T.F. Wong. 1984a. Organic and colloidal
selenium in southern Chesapeake Bay and adjacent waters. Mar. Chem.
14:141-148.
Takayanagi, K. and G.T.F. Wong. 1984b. Total selenium and selenium
(IV) in the James River estuary and southern Chesapeake Bay. Estuarine
Coastal Shelf Sci. 18:113-119.
Takayanagi, K. and D. Cossa. 1985. Speciation of Dissolved Selenium
in the Upper St. Lawrence Estuary. In: Marine and Estuarine
Geochemistry. Sigleo, A.C., and A. Hattori (eds.). Lewis Publishers,
Chelsea, MI. pp.275-284.
Uchida, H., Y. Shimoishi, and K. Toei. 1980. Gas chromatographic
determination of selenium (-II,0), -(IV), and -(VI) in natural
waters. Environ. Sci. Technol. 14:541-544.
U.S. EPA. 1987. Ambient Water Quality Criteria for Selenium--
1987 (EPA 440/5-87-008). National Technical Information Service,
Springfield, VA.
U.S. EPA. 1995. Great Lakes Water Quality Initiative Criteria
Document for the Protection of Aquatic Life in Ambient Water (EPA-
8200-B-95-004).
U.S. EPA. 1995. Regulatory Impact Analysis of the Final Great
Lakes Water Quality Guidance (EPA 820-B-95-011).
U.S. EPA. 1995. The Final Water Quality Guidance for the Great
Lakes System. 60 FR 15366. March 23, 1995.
U.S. EPA. 1996. The Freshwater CMC for Selenium: Addendum to
Ambient Water Quality Criteria for Selenium--1987. July 7, 1996.
U.S. EPA. 1996. The Freshwater CMC for Selenium: Addendum to
Ambient Water Quality Criteria for Selenium--1987. September 30,
1996.

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: November 4, 1996.
Carol M. Browner,
Administrator.

For the reasons set out in the preamble title 40, chapter I of the
Code of Federal Regulations is proposed to be amended as follows:

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

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

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

2. In the table to paragraph (a) in Table 1 to part 132, revise the
entry for ``selenium'' and add a new footnote (e) in alphabetical order
and a new note to the end of the ``Notes'' to read as follows:
Table 1.--Acute Water Quality Criteria for Protection of Aquatic
Life in Ambient Water

* * * *
(a) * * *

CMC (<greek-
Chemical m>g/L) Conversion
factor (CF)

Selenium..................................... (e)CMC<INF>Se 0.996

* * * *
(e)
[GRAPHIC] [TIFF OMITTED] TP14NO96.002

Notes:

* * * *
The terms ``f<INF>1'' and ``f<INF>2'' are the fractions of total
selenium that are treated as selenite and selenate, respectively.
CMC<INF>Se is the CMC expressed as total recoverable selenium.
* * * *
[FR Doc. 96-28910 Filed 11-13-96; 8:45 am]
BILLING CODE 6560-50-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Proposed Selenium Criterion Maximum Concentration for the Water Quality Guidance for the Great Lakes System; Proposed Rule

Seleno-L-methionine............................. .............. 5.78 6.88 ..............

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