[Federal Register Volume 61, Number 221 (Thursday, November 14, 1996)]
[Proposed Rules]
[Pages 58444-58449]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-28910]



[[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

  Federal Register / Vol. 61, No. 221 / November 14, 1996 / Proposed 
Rules  

[[Page 58444]]



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 (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 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 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 back-
calculated the CMC from the field-derived CCC for total selenium, 
arriving at a value of 19.98 g/L, which it rounded to 20 
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 g/L, while a 
CMC for selenate (selenium VI) might have been 12.82 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 field-
data approach and calculated a CMC of 19.34 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 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

1. 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 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 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.

[[Page 58447]]

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  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 c1 is the concentration of selenite and other selenium 
assumed to have the toxicity of selenite, c2 is the concentration 
and selenate and other selenium assumed to have the toxicity of 
selenate; and CMC1 and CMC2 are the CMCs for selenite and 
selenate respectively. A Criterion Maximum Concentration, CMCSe, 
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 f1 and f2 are the fractions of total selenium that are 
treated as selenite and selenate respectively (that is, 
f1=c1/cSe and cSe=c1+c2), and 
f1+f2=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 (c1=0) 
then the Criterion Maximum Concentration (CMCSe) would be 
calculated to be 12.82 g/L, the CMC of selenate. On the other 
hand, if the concentrations of selenate and other selenium are zero, 
then CMCSe would be calculated to be 185.9 g/L, the CMC 
of selenite.
    If the concentrations of selenite and selenate are equal, then 
f1=f2=0.5 (in this special case irrespective of the 
concentration of other selenium), and CMCSe would be calculated to 
be 23.99 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 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 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 Seleno-
DL-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

    1. 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 (g/L)      Conversion
                                                             factor (CF)
------------------------------------------------------------------------
Selenium.....................................      (e)CMCSe        0.996
------------------------------------------------------------------------

* * * * *
    (e)
    [GRAPHIC] [TIFF OMITTED] TP14NO96.002
    
    Notes:
* * * * *
    The terms ``f1'' and ``f2'' are the fractions of total 
selenium that are treated as selenite and selenate, respectively. 
CMCSe is the CMC expressed as total recoverable selenium.
* * * * *
[FR Doc. 96-28910 Filed 11-13-96; 8:45 am]
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