[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.

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

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.
---------------------------------------------------------------------------

    \1\ Lemly, 2002. Selenium Assessment in Aquatic Ecosystems: A 
Guide for Hazard Evaluation. Springer Series on Environmental 
management. Page 23.
---------------------------------------------------------------------------

    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