83 FR 64059 - Water Quality Standards; Establishment of a Numeric Criterion for Selenium for the State of California
ENVIRONMENTAL PROTECTION AGENCY Federal Register Volume 83, Issue 239 (December 13, 2018)
Federal Register Volume 83, Issue 239 (December 13, 2018)
| Page Range | 64059-64078 | |
| FR Document | 2018-26781 |
[Federal Register Volume 83, Number 239 (Thursday, December 13, 2018)] [Proposed Rules] [Pages 64059-64078] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-26781] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 131 [EPA-HQ-OW-2018-0056; FRL-9987-61-OW] RIN 2040-AF79 Water Quality Standards; Establishment of a Numeric Criterion for Selenium for the State of California AGENCY: Environmental Protection Agency (EPA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: The Environmental Protection Agency (EPA) is proposing to establish a federal Clean Water Act (CWA) selenium water quality criterion applicable to California that protects aquatic life and aquatic-dependent wildlife in the fresh waters of California. In 2016, the EPA published a revised recommended aquatic life selenium criterion for freshwater based on the latest scientific knowledge. The EPA is proposing to amend the California Toxics Rule to include a revised statewide chronic selenium water quality criterion for California fresh waters to protect aquatic life and aquatic-dependent wildlife which builds upon the science in the EPA's 2016 Final Aquatic Life Ambient Water Quality Criteria for Selenium--Freshwater. DATES: Comments date: Comments must be received on or before February 11, 2019. Public hearing dates: Tuesday, January 29, 2019 from 9 a.m.-11 a.m. PT, Wednesday, January 30, 2019 from 4 p.m.-6 p.m. PT. ADDRESSES: Comments: Submit your comments, identified by Docket ID No. EPA-HQ-OW-2018-0056, at https://www.regulations.gov (our preferred method), or the other methods identified at https://www.epa.gov/dockets/commenting-epa-dockets. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets. Docket: All documents in the docket are listed in the 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 material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in 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. Public Hearings: The EPA is offering two online public hearings so that interested parties may provide oral comments on this proposed rulemaking. For more details on the public hearings and a link to register, please visit https://www.epa.gov/wqs-tech/water-quality-standards-establishment-numeric-criterion-selenium-fresh-waters-california. FOR FURTHER INFORMATION CONTACT: Julianne McLaughlin, Office of Water, Standards and Health Protection Division (4305T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-2542; email address: [email protected]; or Diane E. Fleck, P.E., Esq., Water Division (WTR-2-1), U.S. Environmental Protection Agency Region 9, 75 Hawthorne Street, San Francisco, CA 94105; telephone number: (415) 972- 3527; email address: [email protected]. SUPPLEMENTARY INFORMATION: This proposed rule is organized as follows: I. General Information II. Background A. Statutory and Regulatory Authority B. National Toxics Rule C. California Toxics Rule D. Litigation E. Selenium and Sources of Selenium III. Proposed Criterion A. Approach B. Administrator's Determination of Necessity C. Proposed Criterion D. Implementation E. Incorporation by Reference IV. Endangered Species Act V. Applicability of the EPA Promulgated Water Quality Standards When Final VI. Implementation and Alternative Regulatory Approaches II. Economic Analysis A. Identifying Affected Entities B. Method for Estimating Costs C. Results VIII. Statutory and Executive Orders A. Executive Order 12866 (Regulatory Planning and Review) and Executive [[Page 64060]] Order 13563 (Improving Regulation and Regulatory Review) B. Executive Order 13771 (Reducing Regulations and Controlling Regulatory Costs) C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132 (Federalism) G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) H. Executive Order 13045 (Protection of Children from Environmental Health and Safety Risks) I. Executive Oder 13211 (Actions That Significantly Affect Energy Supply, Distribution, or Use) J. National Technology Transfer and Advancement Act of 1995 K. Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations) I. General Information Applicability Entities such as industries, stormwater management districts, or publicly owned treatment works (POTWs) that directly or indirectly discharge selenium to the fresh waters of California could be indirectly affected by this rulemaking because federal water quality standards (WQS) promulgated by the EPA would apply to CWA regulatory programs, such as National Pollutant Discharge Elimination System (NPDES) permitting. Citizens concerned with water quality in California could also be interested in this rulemaking. Categories and entities that could be affected include the following: ------------------------------------------------------------------------ Examples of potentially-affected Category entities ------------------------------------------------------------------------ Industry.......................... Industries discharging pollutants to fresh waters of California. Municipalities.................... Publicly owned treatment works or other facilities discharging pollutants to fresh waters of California. Stormwater Management Districts... Entities responsible for managing stormwater discharges to fresh waters of California. Agriculture....................... Entities with agriculture drainage to fresh waters of California. ------------------------------------------------------------------------ This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that could be affected by this action. Any parties or entities who depend upon or contribute to the water quality of California waters where the freshwater criterion would apply could be indirectly affected by this proposed rule. To determine whether your facility or activities could be affected by this action, you should carefully examine this proposed rule. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section. II. Background A. Statutory and Regulatory Authority CWA section 101(a)(2) (33 U.S.C. 1251(a)(2)) establishes a national goal, wherever attainable, of ``water quality which provides for the protection and propagation of fish, shellfish, and wildlife and provides for recreation in and on the water . . .'' In this proposal, the relevant goals are the protection and propagation of fish, shellfish, and wildlife. CWA section 303(c) (33 U.S.C. 1313(c)) directs states to adopt WQS for their waters subject to the CWA. CWA section 303(c)(2)(A) \1\ requires that whenever a state revises or adopts a new standard that the state's WQS specify designated uses of the waters and water quality criteria based on those uses. The EPA's regulations at 40 CFR 131.11(a)(1) provide that ``[s]uch criteria must be based on sound scientific rationale and must contain sufficient parameters or constituents to protect the designated use [and] [f]or waters with multiple use designations, the criteria shall support the most sensitive use.'' In addition, 40 CFR 131.10(b) provides that ``[i]n designating uses of a water body and the appropriate criteria for those uses, the [s]tate shall take into consideration the water quality standards of downstream waters and shall ensure that its water quality standards provide for the attainment and maintenance of the water quality standards of downstream waters.'' --------------------------------------------------------------------------- \1\ CWA 303(c)(2)(A): Whenever the State revises or adopts a new standard, such revised or new standard shall be submitted to the Administrator. Such revised or new water quality standard shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses. Such standards shall be such as to protect the public health or welfare, enhance the quality of water and serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational purposes, and agricultural, industrial, and other purposes, and also taking into consideration their use and value for navigation. --------------------------------------------------------------------------- States are required to review applicable WQS at least once every three years and, if appropriate, revise or adopt new WQS (CWA section 303(c)(1) \2\ and 40 CFR 131.20). Any new or revised WQS must be submitted to the EPA for review and approval or disapproval (CWA section 303(c)(2)(A) and (c)(3) \3\ and 40 CFR 131.20 and 131.21). Under CWA section 303(c)(4)(B),\4\ the Administrator is authorized to determine that a new or revised standard is needed to meet CWA requirements. --------------------------------------------------------------------------- \2\ CWA 303(c)(1): The Governor of a State or the state water pollution control agency of such State shall from time to time (but at least once each three year period beginning with October 18, 1972) hold public hearings for the purpose of reviewing applicable water quality standards and, as appropriate, modifying and adopting standards. Results of such review shall be made available to the Administrator. \3\ CWA 303(c)(3): If the Administrator, within sixty days after the date of submission of the revised or new standard, determines that such standard meets the requirements of this chapter, such standard shall thereafter be the water quality standard for the applicable waters of that State. If the Administrator determines that any such revised or new standard is not consistent with the applicable requirements of this chapter, he shall not later than the ninetieth day after the date of submission of such standard notify the State and specify the changes to meet such requirements. If such changes are not adopted by the State within ninety days after the date of notification, the Administrator shall promulgate such standard pursuant to paragraph (4) of this subsection. \4\ CWA 303(c)(4): The Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality standard for the navigable waters involved--(A) if a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for such waters is determined by the Administrator not to be consistent with the applicable requirements of this chapter, or (B) in any case where the Administrator determines that a revised or new standard is necessary to meet the requirements of this chapter. The Administrator shall promulgate any revised or new standard under this paragraph not later than ninety days after he publishes such proposed standards, unless prior to such promulgation, such State has adopted a revised or new water quality standard which the Administrator determines to be in accordance with this chapter. --------------------------------------------------------------------------- Under CWA section 304(a), the EPA periodically publishes criteria recommendations for states to consider when adopting water quality criteria for particular pollutants to meet the CWA section 101(a)(2) goals. In establishing numeric criteria, states should adopt water quality criteria based on the EPA's CWA section 304(a) criteria, section 304(a) criteria modified to reflect site-specific conditions, or other scientifically defensible methods (40 CFR 131.11(b)(1)). CWA section 303(c)(2)(B) \5\ requires states to adopt [[Page 64061]] numeric criteria for all toxic pollutants listed pursuant to CWA section 307(a)(1) for which the EPA has published 304(a) criteria, as necessary to support the states' designated uses. --------------------------------------------------------------------------- \5\ CWA 303(c)(2)(B): Whenever a State reviews water quality standards pursuant to paragraph (1) of this subsection, or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria for all toxic pollutants listed pursuant to section 1317(a)(1) of this title for which criteria have been published under section 1314(a) of this title, the discharge or presence of which in the affected waters could reasonably be expected to interfere with those designated uses adopted by the State, as necessary to support such designated uses. Such criteria shall be specific numerical criteria for such toxic pollutants. Where such numerical criteria are not available, whenever a State reviews water quality standards pursuant to paragraph (1) or revises or adopts new standards pursuant to this paragraph, such State shall adopt criteria based on biological monitoring or assessment methods consistent with information published pursuant to section 1314(a)(8) of this title. Nothing in this section shall be construed to limit or delay the use of effluent limitations or other permit conditions based on or involving biological monitoring or assessment methods or previously adopted numerical criteria. --------------------------------------------------------------------------- B. National Toxics Rule On December 22, 1992, the EPA promulgated Water Quality Standards; Establishment of Numeric Criteria for Priority Toxic Pollutants; States' Compliance at 57 FR 60848 (hereafter referred to as the National Toxics Rule or NTR).\6\ The NTR established chemical-specific numeric criteria for priority toxic pollutants for states that the EPA Administrator had determined were not in compliance with the requirements of CWA section 303(c)(2)(B). The NTR included selenium water quality criteria for the protection of aquatic life in the waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; and waters of Salt Slough, Mud Slough (north) and the San Joaquin River, Sack Dam to Vernalis. The NTR established the following criteria: For waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta, a chronic criterion of 5 micrograms per liter ([micro]g/L) and an acute criterion of 20 [micro]g/L; for Salt Slough and Mud Slough (north), a chronic criterion of 5 [micro]g/L and an acute criterion of 20 [micro]g/L; for the San Joaquin River from Sack Dam to the mouth of Merced River, an acute criterion of 20 [micro]g/L; and for the San Joaquin River from Sack Dam to Vernalis, a chronic criterion of 5 [micro]g/L. All criteria are expressed in the total recoverable form of selenium. --------------------------------------------------------------------------- \6\ The NTR is codified at 40 CFR 131.36. --------------------------------------------------------------------------- The selenium criteria in the NTR were based on the EPA's CWA section 304(a) recommended criteria values that existed at the time. These recommendations are documented in the EPA's Ambient Water Quality Criteria for Selenium--1987, Office of Water, EPA-440/5-87-008, September 1987. The EPA derived the 1987 freshwater aquatic life recommended criteria values for selenium from observed impacts on fish populations at a contaminated lake, Belews Lake, in North Carolina. The lake, a cooling water reservoir, had been affected by selenium loads from a coal-fired power plant. Since aquatic life was exposed to selenium from both the water column and diet, the criteria reflect both types of exposure in Belews Lake. The EPA derived the 1987 saltwater aquatic life recommended criteria values for selenium using data from lab studies. The EPA calculated the criteria in accordance with the EPA's Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses, Office of Research and Development, 1985. The 1987 recommended freshwater criteria values for total recoverable selenium are 5 [micro]g/L (chronic) and 20 [micro]g/L (acute), and the saltwater criteria values for total recoverable selenium are 71 [micro]g/L (chronic) and 290 [micro]g/L (acute). In the NTR, the EPA promulgated acute and chronic selenium criteria for the San Francisco Bay and Delta based on the 1987 freshwater recommended criteria values for selenium, even though the San Francisco Bay and Delta are marine and estuarine waters. The EPA used the more stringent freshwater values because of a concern that the saltwater criteria were not sufficiently protective ``based on substantial evidence that there are high levels of selenium bioaccumulation in San Francisco Bay and the saltwater criteria fail to account for food chain effects'' and ``utilization of the saltwater criteria for selenium in the San Francisco Bay/Delta would be inappropriate.'' (57 FR 60898). Since the NTR promulgation, the EPA has revised the 1987 CWA section 304(a) recommended criteria for selenium to better account for bioaccumulation through the food chain in different ecosystems. The EPA recently published a revised CWA section 304(a) freshwater recommended criterion for selenium: Final Aquatic Life Ambient Water Quality Criterion for Selenium--Freshwater 2016, US EPA, Office of Water, EPA 822-R-16-006, June 2016. The 2016 recommended chronic freshwater criterion is comprised of four criterion elements, two of which are based on the concentration of selenium in fish tissue and two of which are based on the concentration of selenium in the water column. The recommended elements are: (1) A fish egg-ovary element of 15.1 mg/kg dry weight; (2) a fish whole-body element of 8.5 mg/kg dry weight and/ or a muscle element of 11.3 mg/kg dry weight; (3) a water column element of 3.1 [micro]g/L in lotic aquatic systems and 1.5 [micro]g/L in lentic aquatic systems; and (4) a water column intermittent element derived from the chronic water column element to account for potential chronic effects from short-term exposures (one value for lentic and one value for lotic aquatic systems). The EPA considered the methodology and information used to derive the 2016 CWA section 304(a) recommended selenium criterion, along with additional information specific to aquatic-dependent wildlife in California, in developing a revised selenium criterion for the fresh waters of California in this proposed rule. C. California Toxics Rule On May 18, 2000, the EPA promulgated Water Quality Standards; Establishment of Numeric Criteria for Priority Toxic Pollutants for the State of California at 65 FR 31681 (hereafter referred to as the California Toxics Rule or CTR).\7\ The CTR established numeric water quality criteria for priority toxic pollutants for inland surface waters and enclosed bays and estuaries within California. As referenced earlier, CWA section 303(c)(2)(B) requires states to adopt numeric water quality criteria for priority toxic pollutants for which the EPA has issued CWA section 304(a) recommended criteria reflecting the latest scientific knowledge (referred to as CWA 304(a) recommended criteria), the presence or discharge of which could reasonably be expected to interfere with maintaining designated uses. The EPA promulgated the CTR to fill a gap in California WQS that was created in 1994 when a State court overturned the State's water quality control plans which contained water quality criteria for priority toxic pollutants including selenium. The CTR included water quality criteria for priority toxic pollutants for inland surface waters and enclosed bays and estuaries within California. For the authority to promulgate the 2000 CTR, the EPA relied on an EPA Administrator's determination under section 303(c)(4) of the CWA, included in the 1997 CTR proposal, that numeric criteria are necessary in California to meet the requirements of section 303(c)(2)(B) to protect the State's [[Page 64062]] designated uses.\8\ The criteria that the EPA previously promulgated for California in the NTR,\9\ together with the criteria promulgated in the CTR and California's designated uses and antidegradation provisions, established WQS for priority toxic pollutants for inland surface waters and enclosed bays and estuaries in California. --------------------------------------------------------------------------- \7\ The CTR is codified at 40 CFR 131.38. \8\ See the CTR preamble at section E. Rationale and Approach for Developing the Final Rule, 1. Legal Basis, ``EPA is using section 303(c)(4)(B) as the legal basis for today's final rule.'' 65 FR 31687, May 18, 2000. \9\ The CTR Criteria Table at 40 CFR 131.38(b)(1) includes all water quality criteria previously promulgated in the NTR, so that readers can find all federally promulgated water quality criteria for California in one place. All criteria previously promulgated in the NTR are footnoted as such in the CTR. --------------------------------------------------------------------------- As required by section 7 of the Endangered Species Act (ESA) (16 U.S.C. 1531 et seq.), the EPA had consulted with the U.S. Fish and Wildlife Service (FWS) and the U.S. National Marine Fisheries Service (NMFS) (collectively, the Services) concerning the EPA's rulemaking actions for California. The EPA initiated consultation in 1994, and in March 2000, the Services issued a final Joint Biological Opinion. The final Joint Biological Opinion \10\ recorded commitments by the EPA to withhold promulgation of (i.e., reserve) the EPA's proposed acute \11\ freshwater aquatic life criterion for selenium in the final CTR and revise the CWA section 304(a) recommended acute and chronic aquatic life criteria for selenium and later update the criteria for California consistent with the revised recommendations. Subsequently, the EPA reserved the acute freshwater selenium criterion and finalized the chronic freshwater selenium criterion in the May 2000 CTR, as well as the acute and chronic saltwater selenium criteria. --------------------------------------------------------------------------- \10\ Final Joint Biological Opinion dated March 24, 2000, from the National Marine Fisheries Service, Long Beach, California, and the U.S. Fish and Wildlife Service, Sacramento, California, concerning the EPA's final rule for the Promulgation of Water Quality Standards: Establishment of Numeric Criteria for Priority Toxic Pollutants for the State of California (CTR). \11\ The proposed freshwater acute selenium criterion in the CTR was as follows: The CMC = l/[(f1/CMC1) + (f2/CMC2)] where f1 and f2 are the fractions of total selenium that are treated as selenite and selenate respectively, and f1 + f2 = 1. CMC1 and CMC2 are the CMCs for selenite and selenate, respectively, or 185.9 [micro]g/L and 12.83 [micro]g/L, respectively. This criterion was in the total recoverable form. CMC is the continuous maximum concentration. --------------------------------------------------------------------------- Because a distinct separation generally does not exist between freshwater and saltwater aquatic communities, the EPA further established the following rule in the CTR \12\ for determining which criteria to apply in certain situations: (1) The freshwater criteria apply at salinities of 1 part per thousand \13\ and below at locations where this occurs 95% or more of the time; (2) the saltwater criteria apply at salinities of 10 parts per thousand and above at locations where this occurs 95% or more of the time; and (3) at salinities between 1 and 10 parts per thousand, the more stringent of the two apply. --------------------------------------------------------------------------- \12\ See the CTR at 40 CFR 131.38 (c)(3). \13\ In previous federal rules, including the NTR and the CTR, salinity was referred to using the units of parts per thousand (ppt). Since these rules were published, the scientific community has started referring to salinity in practical salinity units (psu). This proposed rule will stay consistent with the CTR terminology, but it should be noted that ppt is generally no longer used to describe salinity. --------------------------------------------------------------------------- In addition to the NTR and CTR acute and chronic criteria for selenium discussed in the preceding paragraphs, California had also adopted site-specific acute and chronic criteria (objectives) in the lower San Joaquin River area. In 1990, prior to the NTR, the Central Valley Regional Water Quality Control Board (CVRWQCB) adopted, and the EPA approved, an acute selenium objective of 12 [micro]g/L maximum concentration for the San Joaquin River, mouth of Merced River to Vernalis, and a chronic site-specific objective for the Grassland Water District, the San Luis National Wildlife Refuge, and the Los Banos State Wildlife Refuge of 2 [micro]g/L monthly mean. Therefore, the State acute criterion is effective for the San Joaquin River, mouth of Merced River to Vernalis. In addition, the EPA did not promulgate a chronic criterion for the Grassland Water District, the San Luis National Wildlife Refuge, and the Los Banos State Wildlife Refuge in the CTR. The CVRWQCB subsequently amended its Basin Plan, to apply the chronic 2 [micro]g/L monthly mean selenium objective (and an acute 20 [micro]g/L maximum concentration objective) only to ``Salt Slough and constructed and reconstructed water supply channels in the Grassland watershed listed in Appendix 40 [of the CVRWQCB Basin Plan]'' (The Water Quality Control Plan (Basin Plan) for the California Regional Water Quality Control Board Central Valley Region, Fourth Edition, July 2016). The EPA approved this change to California's WQS under CWA section 303(c) in a letter dated May 24, 2000. The Basin Plan amendment also included a chronic site-specific objective of 5 [micro]g/L (4-day average) for Mud Slough (north) and for the San Joaquin River from Sack Dam to Vernalis, and an acute objective of 20 [micro]g/L for Mud Slough (north) and the San Joaquin River from Sack Dam to the mouth of the Merced River, to be consistent with the previously promulgated criteria in the NTR. This proposed rule does not apply to the San Joaquin River from Sack Dam to Vernalis, Mud Slough, or Salt Slough because they have applicable selenium criteria from the NTR and/or approved CVRWQCB site- specific criteria (objectives). This proposed rule also does not apply to the constructed and reconstructed water supply channels in the Grassland watershed listed in Appendix 40 of the CVRWQCB's Basin Plan. The CVRWQCB's Staff Report for the Basin Plan amendment indicates that the existing chronic 2 [micro]g/L monthly mean objective is intended to protect both aquatic life and waterfowl from the toxic effects of selenium. This proposed rule does apply the revised chronic criterion to the waters of the San Luis National Wildlife Refuge and the Los Banos State Wildlife Refuge to protect aquatic life and wildlife from short-term and long-term exposures of selenium. The proposed rule also does not apply to surface waters that are tributaries to the Salton Sea. The Colorado River Regional Water Quality Control Board adopted, and the EPA approved on May 29, 2000, site-specific selenium water quality objectives ``for all surface waters that are tributaries to the Salton Sea.'' The site-specific objectives consist of an acute objective of 20 [micro]g/L one-hour average and a chronic objective of 5 [micro]g/L four-day average (The Water Quality Control Plan (Basin Plan) for the California Regional Water Quality Control Board Colorado River Basin Region, August 2017). The State of California has nine Regional Water Quality Control Boards (Regional Boards), each located in and overseeing different areas of the State. Each Regional Board has a regional water quality control plan (Basin Plan) that sets forth the EPA-approved designated (beneficial) uses for the waterbodies it oversees. Once the EPA finalizes the proposed criterion, the criterion becomes the applicable CWA-effective criterion for CWA implementation purposes by each of the Regional Boards. D. Litigation In 2013, two organizations filed a legal complaint against the EPA in the United States District Court for the Northern District of California. The complaint was based in part on the fact that the EPA had previously determined, in the proposed CTR, that an acute criterion was necessary to implement section 303(c)(2)(B) of the CWA (62 FR 42160, August 5, 1997) and the work to update the reserved [[Page 64063]] freshwater acute selenium criterion from the 2000 CTR had not yet been completed. The EPA ultimately entered into a consent decree resolving these claims in 2014 (Our Children's Earth Foundation and Ecological Rights Foundation v. U.S. Environmental Protection Agency, et al., 13- cv-2857 (N.D. Cal., August 22, 2014)). Under the terms of the consent decree, the EPA committed to proposing selenium criteria for California fresh waters covered by the original CTR to protect aquatic life and aquatic-dependent wildlife by November 30, 2018. The consent decree also requires that the EPA request initiation of any necessary ESA section 7(a)(2) consultation with the Services on the proposed selenium criteria no later than nine months after the date the EPA proposes the criteria. Further, under the consent decree, the EPA is required to finalize its proposal of selenium criteria within six months of the later of either making a ``no effect'' determination, receiving written concurrence from the Services, or concluding formal consultation with the Services. In the event that the EPA approves selenium criteria for the protection of aquatic life and aquatic-dependent wildlife submitted by California for all or any portion of fresh waters in the rest of California (i.e., all fresh waters not part of the San Francisco Bay and Delta) the EPA would no longer be obligated to propose or finalize criteria for such waters. E. Selenium and Sources of Selenium Selenium is an element that occurs naturally in sediments of marine origin and enters the aquatic environment when rainwater comes into contact with deposits. Selenium is mobilized through anthropogenic activities such as agriculture irrigation, mining, and petroleum refining. It also comes into contact with the environment due to releases from holding ponds associated with mining. Selenium is emitted from power plants that burn coal or oil, selenium refineries, smelters, milling operations, and end-product manufacturers (e.g. semiconductor manufacturers).\14\ Once inorganic selenium is converted into a bioavailable form, it enters the food chain and can bioaccumulate. Depending on environmental conditions, one or another form of selenium such as selenate, selenite or organo-selenium, which differ in transformation rates and bioavailability, may predominate in the aquatic environment. --------------------------------------------------------------------------- \14\ U.S. Department of Health and Human Services. Public Health Service. Agency for Toxic Substances and Disease Registry. Toxicological Profile for Selenium. September 2003 (https://www.atsdr.cdc.gov/toxprofiles/tp92.pdf). --------------------------------------------------------------------------- Selenium is an essential micronutrient and low levels of selenium in the diet are required for normal cellular function in almost all animals. However, selenium at amounts not much above the required nutritional levels can have toxic effects on aquatic life and aquatic- dependent wildlife, making it one of the most toxic of the biologically essential elements. Egg-laying vertebrates have a lower tolerance than do mammals, and the transition from levels of selenium that are biologically essential to those that are toxic for these species occurs across a relatively narrow range of exposure concentrations. (see Final Aquatic Life Ambient Water Quality Criteria for Selenium--Freshwater 2016, US EPA, Office of Water, EPA 822-R-16-006, June 2016). Elevated selenium levels above what is nutritionally required in fish and other wildlife inhibit normal growth and reduce reproductive success through effects that lower embryo survival, most notably teratogenesis (i.e., embryo/larval deformities). The deformities associated with exposure to elevated selenium in fish may include skeletal, craniofacial, and fin deformities, and various forms of edema that result in mortality. Elevated selenium exposure in birds can reduce reproductive success including decreased fertility, reduced egg hatchability (embryo mortality), and increased incidence of deformities in embryos. Scientific studies \15\ indicate that selenium toxicity to aquatic life and aquatic-dependent wildlife is driven by diet (i.e., the consumption of selenium-contaminated prey) rather than by direct exposure to dissolved selenium in the water column. Unlike other bioaccumulative contaminants such as mercury, the single largest step in selenium accumulation in aquatic environments occurs at the base of the food web where algae and other microorganisms accumulate selenium from water. The vulnerability of a species to selenium toxicity is determined by a number of factors in addition to the amount of contaminated prey consumed. A species' sensitivity to selenium, its population status, and the duration, timing and life stage of exposure are all factors to consider. In addition, the hydrologic conditions and water chemistry of a water body affect bioaccumulation; in general, slow-moving, calm waters or lentic waters enhance the production of bioavailable forms of selenium (selenite), while faster-moving waters or lotic waters limit selenium uptake given the rapid movement and predominant form of selenium (selenate). The EPA considered these and other factors in determining the proposed selenium criterion for California. --------------------------------------------------------------------------- \15\ Scientific studies used in the development of this rulemaking can be found in this proposed rule's docket, as well as dockets EPA-HQ-OW-2004-0019 and EPA-HQ-OW-2015-0392. --------------------------------------------------------------------------- Sources of Selenium in California Selenium is found in the upper Cretaceous and Tertiary marine and sedimentary deposits that form the California Coast Ranges and inland Central Valley basin. Sedimentary rocks, particularly shales, have the highest naturally occurring selenium content and the natural weathering of geologic strata containing selenium can lead to selenium leaching into groundwater and surface water. Two major categories of anthropogenic activities are known to cause increased selenium mobilization and introduction into aquatic systems. The first is human disturbances to the geological sedimentary deposits; the second is irrigation of selenium-rich soils. Additional sources include five oil refineries along the San Francisco Bay, which are not included in the scope of this proposal. In California, areas with Tertiary and Cretaceous marine sedimentary deposits are known to have elevated selenium. Watersheds in these areas may have elevated selenium levels in water, especially if human disturbances to the geological sedimentary deposits in these areas are high. For instance, human disturbances have included expanding the width and depth of open drainage channels for flood control purposes in agricultural and urbanized areas and conducting construction activities in the upland hills that contain marine shales. These activities have disrupted and exposed the underlying selenium- bearing marine sedimentary deposits subjecting them to erosion, weathering, and transport to downslope areas in the watershed. Irrigation of selenium-rich soils for crop production in arid and semi-arid regions of California can mobilize selenium and move it off- site in drainage water that has leached through soil. Where deposits of Cretaceous marine shales occur, they can weather to produce high selenium soils. In semi-arid areas of California, irrigation water applied to soils containing soluble selenium can leach selenium. The excess water (from tile drains to irrigation return flow) containing selenium can be discharged into basins, ponds, or streams. For example, [[Page 64064]] elevated selenium levels at the Kesterson Reservoir in California originated from agricultural irrigation return flow collected in tile drains that discharged into the reservoir. III. Proposed Criterion A. Approach In 2016, the EPA updated its CWA section 304(a) recommendation for a chronic aquatic life criterion for selenium for freshwater, based on the latest scientific knowledge on selenium toxicity and bioaccumulation (Final Aquatic Life Ambient Water Quality Criteria for Selenium--Freshwater 2016, US EPA, Office of Water, EPA 822-R-16-006, June 2016). This information was not available when the EPA finalized the NTR or the CTR in 1992 and 2000, respectively. The EPA is now proposing a revised chronic selenium criterion to protect aquatic life and aquatic-dependent wildlife for the fresh waters of California based on this latest scientific knowledge and consistent with its obligation under the consent decree. This chronic freshwater selenium criterion will apply to California waters in a manner consistent with the CTR. The freshwater and saltwater aquatic life criteria listed in the CTR apply as follows: (1) The freshwater criteria apply at salinities of 1 part per thousand and below at locations where this occurs 95% or more of the time; (2) saltwater criteria apply at salinities of 10 parts per thousand and above at locations where this occurs 95% more of the time; and (3) at salinities between 1 and 10 parts per thousand the more stringent of the two apply. The proposed criterion would establish levels of selenium that protect California's aquatic life and aquatic-dependent wildlife designated (beneficial) uses for fresh waters of California consistent with California's implementation of the CTR. California's applicable designated uses for the protection of aquatic life and aquatic- dependent wildlife are listed in Table 2. --------------------------------------------------------------------------- \16\ Refer to document titled, ``Applicable Designated (Beneficial) Uses for California,'' in the docket associated with this rulemaking, to find designated uses captured in the California Regional Water Quality Control Boards' Water Quality Control Plans (i.e., Regional Boards' Basin Plans). Table 2--Applicable Designated (Beneficial) Uses for California \16\ ------------------------------------------------------------------------ Use Abbreviation Definition ------------------------------------------------------------------------ Warm Freshwater Habitat...... WARM Uses of water that support warm water ecosystems including, but not limited to, preservation or enhancement of aquatic habitats, vegetation, fish, or wildlife, including invertebrates. Cold Freshwater Habitat...... COLD Uses of water that support cold water ecosystems including, but not limited to, preservation or enhancement of aquatic habitats, vegetation, fish, or wildlife, including invertebrates. Migration of Aquatic MIGR Uses of water that Organisms. support habitats necessary for migration or other temporary activities by aquatic organisms, such as anadromous fish. Spawning, Reproduction, and/ SPWN Uses of water that or Early Development. support high quality aquatic habitats suitable for reproduction and early development of fish. Estuarine Habitat............ EST Uses of water that support estuarine ecosystems including, but not limited to, preservation or enhancement of estuarine habitats, vegetation, fish, shellfish, or wildlife (e.g., estuarine mammals, waterfowl, shorebirds). Wildlife Habitat............. WILD Uses of water that support terrestrial ecosystems including, but not limited to, preservation or enhancement of terrestrial habitats, vegetation, wildlife (e.g., mammals, birds, reptiles, amphibians, invertebrates), or wildlife water and food sources. Rare, Threatened, or RARE Uses of water that Endangered Species. support habitats necessary, at least in part, for the survival and successful maintenance of plant or animal species established under state or federal law as rare, threatened or endangered. ------------------------------------------------------------------------ B. Administrator's Determination of Necessity As noted above, as part of the prior CTR rulemaking, the EPA invoked its authority under CWA section 303(c)(4)(B) when it proposed acute and chronic selenium criteria for fresh waters in California not subject to numeric criteria. The basis for that 303(c)(4)(B) determination was California's lack of numeric criteria, including selenium criteria as required by CWA section 303(c)(2)(B), which directs states to adopt numeric criteria for those toxic pollutants for which the EPA has published CWA 304(a) recommended criteria. In 1997, the EPA proposed acute and chronic aquatic life criteria for selenium based on the EPA's then-current CWA 304(a) recommended criteria. Through the course of that rulemaking, the EPA consulted with the Services pursuant to section 7(a) of the Endangered Species Act. As part of that consultation process, the EPA committed to reserving (not promulgating) the proposed acute criterion. Because the EPA did not finalize the proposed acute criterion, nor did it reconsider the accompanying section 303(c)(4)(B) determination, the EPA remained subject to a statutory duty to promulgate an acute selenium criterion for California. The EPA did promulgate chronic selenium criteria in 2000, but also committed to proposing revised chronic criteria by 2003. The Services incorporated the EPA's commitments as Terms and Conditions in the final biological opinion on the effects of the final promulgation of the CTR. Today's proposal of a revised chronic selenium criterion is necessary to complete actions initiated pursuant to the Administrator's 1997 and 2000 CTR determinations. The EPA is proposing a revised numeric selenium criterion, to comply with CWA section 303(c)(2)(B). The EPA is proposing a chronic criterion for California based on the EPA's current CWA 304(a) recommended criterion for selenium, which only includes a chronic criterion. The current science shows that an acute criterion is not necessary to protect from the lethal effects of selenium if a protective chronic criterion is in place, which by definition protects against [[Page 64065]] sublethal effects and effects of short-term elevations of selenium that are introduced into the food web and could result in chronic effects. Therefore, if a protective chronic selenium criterion, such as the EPA is proposing today, is ultimately promulgated, an acute criterion would no longer be necessary to meet the requirements of the CWA, and so the Administrator's determinations contained in the 1997 and 2000 preambles to the CTR will be negated insofar as they called for the promulgation of an acute selenium criterion. C. Proposed Criterion Water quality criteria establish the maximum allowable pollutant level that is protective of the designated uses of a water body. States adopt or, as in this case, the EPA may promulgate criteria as part of WQS. Under the CWA, WQS are used to derive water quality-based effluent limitations (WQBELs) in permits for point source dischargers, thereby limiting the amount of pollutants that may be discharged into a water body to maintain its designated uses. The EPA is proposing a selenium water quality criterion for California comprised of criterion elements of fish tissue, bird tissue, and a performance-based approach to be used by California to translate the tissue criterion elements into protective water column elements on a site-specific basis. The EPA is proposing selenium fish and bird tissue elements because they reflect biological uptake through diet, the predominant pathway for selenium toxicity, and because they are most predictive of the observed biological endpoint of concern: Reproductive toxicity. The EPA is proposing the freshwater selenium criterion in California that is depicted in Table 3. The EPA is proposing its recommended 2016 CWA section 304(a) selenium criterion for freshwater with the addition of a bird tissue criterion element and the replacement of the 304(a) selenium monthly average exposure water column criterion element with a performance-based approach \17\ for translating the tissue elements into corresponding water-column elements on a site-specific basis. This performance-based approach maximizes the flexibility for the State to develop water-column translations specifically tailored to each individual waterbody. The available data indicate that applying the criterion in Table 3 would protect aquatic life and aquatic-dependent wildlife from the toxic effects of selenium, recognizing that fish tissue elements and the bird tissue element supersede any translated site-specific water column elements and that the fish egg-ovary element supersedes all other fish tissue elements. The proposed tissue criterion elements consist of a bird egg criterion element of 11.2 mg/kg dry weight, a fish egg-ovary criterion element of 15.1 mg/kg dry weight, a fish whole-body criterion element of 8.5 mg/kg dry weight or a fish muscle criterion element of 11.3 mg/kg dry weight. The fish tissue and bird tissue criterion elements were developed to protect aquatic and aquatic-dependent wildlife populations from impacts caused by selenium. Tissue data provide instantaneous point measurements that reflect integrative accumulation of selenium over time and space in fish or birds at a given site. California will have flexibility in how they interpret a discrete fish sample to represent a given species' population at a site. Generally, fish and bird tissue samples collected to calculate average tissue concentrations (often in composites) for a species at a site are collected in one sampling event, or over a short interval due to logistical constraints and cost for obtaining samples. The proposed performance-based approach consists of a methodology, Draft Translation of Selenium Tissue Criterion Elements to Site-Specific Water Column Criterion Elements for California Version 1, August 8, 2018, available in the docket for this rulemaking, to translate the tissue criterion elements to site-specific water column criterion elements (discussed in greater detail below Table 3). The EPA is also proposing an intermittent exposure water column element that would be derived from the site-specific water column criterion elements. The EPA is proposing that the bird tissue element be independently applicable from and equivalent to the fish tissue elements, but that all tissue elements will supersede translated water column elements for the specific taxon when both are measured. --------------------------------------------------------------------------- \17\ A performance-based approach relies on the state or authorized tribe adopting a process (i.e., a criterion derivation methodology, with associated implementation procedures) rather than a specific outcome (e.g., numeric criterion or concentration of a pollutant) in its water quality standards regulation. In instances where the EPA promulgates a water quality standard (including a performance-based approach) for a state or authorized tribe, the EPA is held to the same requirements and expectations for that water quality standard as the state or authorized tribe. The concept of a performance-based approach was first described in the Federal Register Notice EPA Review and Approval of State and Tribal Water Quality Standards--Final Rule (65 FR 24641-24653; April 27, 2000). --------------------------------------------------------------------------- The EPA is proposing the following criterion: BILLING CODE 6560-50-P [[Page 64066]] [GRAPHIC] [TIFF OMITTED] TP13DE18.007 BILLING CODE 6560-50-C Performance-Based Approach for Translating Tissue Criterion Elements to Site-Specific Water Column Criterion Elements As part of the proposed criterion depicted in Table 3, the EPA is including a methodology, incorporated by reference, to translate the fish tissue criterion elements' concentrations and the bird tissue criterion element's concentration into site-specific water column concentrations. This is considered a performance-based approach to developing site-specific water column elements consistent with other elements of the criterion. This set of binding procedures for translating fish and bird tissue criterion elements is detailed in the Draft Translation of Selenium Tissue Criterion Elements to Site- Specific Water Column Criterion Elements for California, Version 1, August 8, 2018 and is located in the docket for this rulemaking. The performance-based approach provides two methodologies for deriving site-specific water column criterion elements: The mechanistic modeling approach and the empirical bioaccumulation factor (BAF) approach. [[Page 64067]] The mechanistic modeling approach uses scientific knowledge of the physical and chemical processes underlying bioaccumulation to establish a relationship between the concentrations of selenium in the water column and the concentration of selenium in the tissue of aquatic and aquatic-dependent organisms. The mechanistic modeling approach enables formulation of site-specific models of trophic transfer of selenium through aquatic food webs and translation of the tissue elements into an equivalent site-specific water column selenium element. It is also the approach used to develop the 2016 CWA 304(a) recommended selenium criterion water column elements. The empirical BAF approach establishes a site-specific relationship between water column selenium concentrations and fish (or bird) tissue selenium concentrations by measuring both directly and using the relationship between them to determine a site-specific water column criterion element. If, after soliciting comment, the EPA finalizes a selenium criterion that includes the proposed performance-based approach as part of the federal promulgation, each resulting site-specific water column criterion element would be applicable for CWA purposes, without the need for EPA approval under CWA section 303(c). Importantly, for public transparency, the EPA recommends that California maintain a list of the resulting site-specific water column criterion elements and the underlying data used for their respective derivation on their publicly accessible website. The proposed chronic selenium criterion applies to the entire aquatic community, including fish, amphibians, invertebrates, and aquatic-dependent wildlife. Based on the analysis in the accompanying Technical Support Document (TSD) to this proposed rule (Aquatic Life and Aquatic-Dependent Wildlife Selenium Water Quality Criterion for Fresh Waters of California) and the EPA's previous work (Final Aquatic Life Ambient Water Quality Criteria for Selenium--Freshwater 2016, US EPA, Office of Water, EPA 822-R-16-006, June 2016), as well as currently available data, fish and birds are considered the most sensitive taxa to selenium effects. Selenium criterion elements based on fish tissue (egg-ovary, whole body, and/or muscle) or bird egg tissue data will override the performance-based translated water column concentrations because fish and bird tissue concentrations provide the most robust and direct information on potential selenium effects in fish and birds. Although selenium may cause acute toxicity at high concentrations, i.e., toxicity from a brief but highly elevated concentration of selenium in the water, chronic dietary exposure poses the highest risk to aquatic life and aquatic-dependent wildlife. Chronic toxicity occurs primarily through maternal transfer of selenium to eggs and causes subsequent reproductive effects, such as larval and embryo structural deformity, edema, and mortality. Because chronic effects of selenium are observed at much lower concentrations than acute effects, the chronic criterion is also expected to protect aquatic and aquatic- dependent communities from any potential acute effects of selenium. However, some high concentration, short-term exposures could be detrimental by causing significant long-term, residual, bioaccumulative effects (i.e., by the introduction of a significant selenium load into the system). Therefore, the EPA is also proposing the performance-based approach be used to address intermittent exposure criterion to selenium to prevent long-term detrimental effects from these high concentration, short-term exposures. The EPA's proposed intermittent exposure criterion element should be derived mathematically, from the performance-based site-specific monthly water column elements for lentic and/or lotic waters using the equation shown in Table 3. The equation expresses the intermittent exposure water criterion element in terms of the 30-day average chronic water criterion element, for a lentic or lotic system, as appropriate, while accounting for the fraction in days of any 30-day period the intermittent spikes occur and for the background concentration occurring during the remaining time. The intermittent exposure criterion calculation is consistent with the EPA's national 304(a) recommended freshwater aquatic life criterion for selenium (see Section 3.3.) and is meant to be used in situations where a noncontinous discharge is present in the water body of interest. The EPA solicits comment on the Draft Translation of Selenium Tissue Criterion Elements to Site-Specific Water Column Criterion Elements for California, Version 1, August 8, 2018 and how it has been applied in this proposed rule and requests any additional information for consideration by the EPA. The EPA specifically solicits comment on whether it would be appropriate to include a method for a larger scale (e.g., ecoregional or state-wide) water column translation from fish or bird egg tissue in a performance-based approach, and if so, what methods are available and appropriate for this large scale translation. Such an approach would need, for example, methods for selecting sites from a larger area and would need to specify in the performance-based approach how decisions will be made using information from multiple sites. Additionally, the EPA is soliciting public comment on an alternative to the proposed criterion whereby the criterion would be expressed in the same manner as in this proposed rule (same bird tissue, fish tissue, and intermittent exposure criterion elements as presented in Table 3), however, in addition to the performance-based approach to translate site-specific water column criterion elements, the EPA would include the water column criterion elements from the Agency's 2016 CWA section 304(a) selenium criterion for freshwater: A lotic water column criterion element of 3.1 [micro]g/L and a lentic water column criterion element of 1.5 [micro]g/L. The derivation of these water column criterion elements is described in detail in the accompanying TSD to this proposed rule and the EPA's previous work in its 2016 CWA section 304(a) selenium criterion for freshwater. The EPA also solicits comment on an alternative that would be expressed in the same manner as the proposed criterion (same bird tissue, fish tissue, and intermittent exposure criterion elements as presented in Table 3), and include the EPA water column criterion elements from the Agency's 2016 CWA section 304(a) selenium criterion for freshwater, instead of including the performance-based approach. The EPA also solicits comment on the criterion structure whereby rather than proposing one criterion that protects applicable aquatic life and wildlife designated uses, the rule, if finalized, would consist of two separate criteria with one intended to protect the applicable aquatic life designated uses and one intended to protect the applicable wildlife designated uses. The two separate criteria would be structured as follows: (1) An aquatic life criterion, consisting of the same fish tissue elements and performance-based approach presented in Table 3, to protect the applicable aquatic life designated uses; and (2) an aquatic-dependent wildlife criterion, consisting of the same bird tissue element and performance-based approach presented in Table 3, to protect the applicable wildlife designated uses. The EPA solicits comment on the criterion structure and whether one criterion or two separate criteria are preferred for [[Page 64068]] implementation reasons. This approach could also utilize either the performance-based approach to translate tissue elements to site- specific water-column elements or the water-column elements from the Agency's 2016 CWA section 304(a) selenium criterion for freshwater. If the proposed rule is finalized as currently written, one criterion (as shown in Table 3) would be used to protect both aquatic life and aquatic-dependent wildlife designated uses in the waters covered by this proposed rule, as opposed to two separate criteria, each intended to protect a separate designated use. D. Implementation The EPA is proposing that for purposes of assessing attainment of the criterion, the bird tissue element be independently applicable from the fish tissue elements (i.e., if the bird tissue element is exceeded, the criterion is not being attained for the applicable wildlife designated use), but that all tissue elements will supersede translated water column elements for the specific taxon when both are measured (i.e., if both of the tissue elements are being met, the criterion is being attained even if the water column element is exceeded). Additionally, fish egg-ovary data supersedes any whole-body, muscle, or translated water column element data for that taxon when fish-egg ovary are measured (i.e., if the fish egg-ovary element is being met, the criterion is being attained even if the whole-body, muscle, or water column elements are not being met). Similarly, the bird tissue element supersedes translated water column elements for that taxon when both are measured. California has flexibility in how to evaluate individual and composite samples for each taxon. The State's assessment methodology should make its decision-making process in this situation clear. This construct is equivalent to the EPA's CWA 304(a) recommended selenium criterion in that tissue criterion elements have primacy over water column criterion elements. Selenium concentrations in fish and bird tissue are primarily a result of selenium bioaccumulation via dietary exposure. Because of this, fish and bird tissue concentrations in waters with new inputs of selenium may not fully represent potential effects on fish, birds, and the aquatic ecosystem. New inputs are defined as new anthropogenic activities resulting in the release of selenium into a lentic or lotic aquatic system. New inputs do not refer to seasonal variability of selenium that occurs naturally within a system (e.g. spring run-off events or precipitation-driven pulses). In this circumstance fish tissue data and bird tissue data may not fully represent potential effects on the aquatic ecosystem, making the use of a translated water column element derived using the mechanistic model portion of the performance-based approach more appropriate to protect the entire aquatic ecosystem. Because tissue concentrations alone may present challenges when attempting to incorporate them directly in NPDES permits, the EPA is also proposing a performance-based approach for California to use to translate tissue elements to site-specific water column concentrations. These translated water column criterion concentrations would not prevent California from also using the tissue criterion elements for monitoring and regulation of pollutant discharges. In implementing the water quality criterion for selenium under the NPDES permits program, California may need to establish additional procedures due to the unique components of the selenium criterion. Where California uses a translated selenium water column concentration only (as opposed to using both the water column and fish tissue or bird tissue elements) for conducting reasonable potential (RP) determinations and establishing WQBELs per 40 CFR 122.44(d), existing implementation procedures used for other aquatic life protection criteria may be appropriate. However, if California also decides to use the selenium fish tissue criterion elements and bird tissue criterion element for NPDES permitting purposes, additional state WQS implementation procedures (IPs) will likely be needed to determine the need for and development of WQBELs necessary to ensure that the tissue criterion element(s) are met. E. Incorporation by Reference The EPA is proposing that the final EPA regulatory text will incorporate one EPA document by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the final version of the EPA's current Draft Translation of Selenium Tissue Criterion Elements to Site-Specific Water Column Criterion Elements for California, Version 1, August 8, 2018, discussed in Section III.C. of this preamble. The EPA has made, and will continue to make, this document available electronically through www.regulations.gov at the docket associated with this rulemaking and at the appropriate EPA office (see the ADDRESSES section of this preamble for more information). IV. Endangered Species Act Pursuant to section 7(a)(2) of the Endangered Species Act (ESA), the EPA is consulting with the FWS and NMFS concerning the EPA's rulemaking action for the selenium water quality criterion in California. The EPA will transmit to the Services documentation that supports the selenium water quality criterion in this proposed rule. As a result of this consultation, the EPA may modify some provisions of this proposed rule. V. Applicability of the EPA Promulgated Water Quality Standards When Final Under the CWA, Congress gave states primary responsibility for developing and adopting WQS for their waters (CWA section 303(a)-(c)). Although the EPA is proposing a selenium criterion for the protection of aquatic life and aquatic-dependent wildlife for the fresh waters of California, California continues to have the option to adopt and submit to the EPA selenium criteria (objectives) for the State's waters consistent with CWA section 303(c) and the EPA's implementing regulations at 40 CFR part 131. The EPA encourages California to expeditiously adopt selenium criteria. Consistent with CWA section 303(c)(4) and the terms of the consent decree, if California adopts and submits selenium criteria for the protection of aquatic life and aquatic-dependent wildlife, and the EPA approves such criteria before finalizing this proposed rule, the EPA would not proceed with the promulgation for those waters for which the EPA approves California's criteria. Under those circumstances, federal promulgation would no longer be necessary to meet the requirements of the Act. If the EPA finalizes this proposed rule and California subsequently adopts and submits selenium criteria for the protection of aquatic and aquatic-dependent wildlife for California, the EPA would approve California's criteria if those criteria meet the requirements of section 303(c) of the CWA and the EPA's implementing regulation at 40 CFR part 131. If the EPA's federally-promulgated criteria are more stringent than the State's criteria, the EPA's federally-promulgated criteria are and will be the applicable water quality standard for purposes of the CWA until the Agency withdraws those federally- promulgated standards. The EPA would expeditiously undertake such a rulemaking to withdraw the federal criteria if and when California adopts and the EPA approves corresponding criteria. After the EPA's withdrawal of [[Page 64069]] federally promulgated criteria, the State's EPA-approved criteria would become the applicable criteria for CWA purposes. If the State's adopted criteria are as stringent or more stringent than the federally- promulgated criteria, then the State's criteria would become the CWA applicable WQS upon the EPA's approval (40 CFR 131.21(c)). VI. Implementation and Alternative Regulatory Approaches The federal WQS regulation at 40 CFR part 131 provides several tools that California has available to use at its discretion when implementing or deciding how to implement these aquatic life criteria, once finalized. Among other things, the EPA's WQS regulation: (1) Specifies how states and authorized tribes establish, modify or remove designated uses, (2) specifies the requirements for establishing criteria to protect designated uses, including criteria modified to reflect site-specific conditions, (3) authorizes and provides regulatory guidelines for states and authorized tribes to adopt WQS variances that provide time to achieve the applicable WQS, and (4) allows states and authorized tribes to authorize the use of compliance schedules in NPDES permits to meet WQBELs derived from the applicable WQS. Each of these approaches are discussed in more detail in the next sections. Designated Uses The EPA's proposed selenium criterion applies to fresh waters of California where the protection of aquatic life and aquatic-dependent wildlife are designated uses. The federal regulations at 40 CFR 131.10 provide information on establishing, modifying, and removing designated uses. If California removes designated uses such that no aquatic life or aquatic-dependent wildlife uses apply to any particular water body segment affected by this rule and adopts the highest attainable use,\18\ the State must also adopt criteria to protect the newly designated highest attainable use consistent with 40 CFR 131.11. It is possible that criteria other than the federally promulgated criteria would protect the highest attainable use. If the EPA finds removal or modification of the designated use and the adoption of the highest attainable use and criteria to protect that use to be consistent with CWA section 303(c) and the implementing regulation at 40 CFR part 131, the Agency would approve the revised WQS. The EPA would then undertake a rulemaking to withdraw the corresponding federal WQS for the relevant water(s). --------------------------------------------------------------------------- \18\ If a state or authorized tribe adopts a new or revised WQS based on a required use attainability analysis, then it must also adopt the highest attainable use (40 CFR 131.10(g)). Highest attainable use is the modified aquatic life, wildlife, or recreation use that is both closest to the uses specified in section 101(a)(2) of the Act and attainable, based on the evaluation of the factor(s) in 40 CFR 131.10(g) that preclude(s) attainment of the use and any other information or analyses that were used to evaluate attainability. There is no required highest attainable use where the state demonstrates the relevant use specified in section 101(a)(2) of the Act and sub-categories of such a use are not attainable (see 40 CFR 131.3(m)). --------------------------------------------------------------------------- Site-Specific Criteria The regulations at 40 CFR 131.11 specify requirements for modifying water quality criteria to reflect site-specific conditions. In the context of this rulemaking, a site-specific criterion (SSC) is an alternative value to the federal selenium criterion that would be applied on an area-wide or water body-specific basis that meets the regulatory test of protecting the designated uses, being scientifically defensible, and ensuring the protection and maintenance of downstream WQS. A SSC may be more or less stringent than the otherwise applicable federal criterion. A SSC may be called for when further scientific data and analyses indicate that a different selenium concentration (e.g., a different fish tissue or bird tissue criterion element) may be needed to protect the aquatic life and aquatic-dependent wildlife-related designated uses in a particular water body or portion of a water body. WQS Variances California's WQS provide sufficient authority to apply WQS variances when implementing a federally promulgated criterion for selenium, as long as such WQS variances are adopted consistent with 40 CFR 131.14 and submitted to the EPA for review and approval under CWA section 303(c). Federal regulations at 40 CFR 131.14 define a WQS variance as a time-limited designated use and criterion, for a specific pollutant or water quality parameter, that reflects the highest attainable condition during the term of the WQS variance. WQS variances adopted in accordance with 40 CFR 131.14 (including a public hearing consistent with 40 CFR 25.5) provide a flexible but defined pathway for states and authorized tribes to meet their NPDES permit obligations by allowing dischargers the time they need (as demonstrated by the state or authorized tribe) to make incremental progress toward meeting WQS that are not immediately attainable but may be in the future. When adopting a WQS variance, states and authorized tribes specify the interim requirements of the WQS variance by identifying a quantitative expression that reflects the highest attainable condition (HAC) during the term of the WQS variance, establishing the term of the WQS variance, and describing the pollutant control activities expected to occur over the specified term of the WQS variance. WQS variances help states and authorized tribes focus on improving water quality, rather than pursuing a downgrade of the underlying water quality goals through modification or removal of a designated use, as a WQS variance cannot lower currently attained water quality. WQS variances provide a legal avenue by which NPDES permit limits can be written to comply with the WQS variance rather than the underlying WQS for the term of the WQS variance. If dischargers are still unable to meet the WQBELs derived from the applicable WQS once a WQS variance term is complete, the regulation allows the state and authorized tribe to adopt a subsequent WQS variance if it is adopted consistent with 40 CFR 131.14. The EPA is proposing a criterion that applies to use designations that California has already established. California's WQS currently include the authority to use WQS variances when implementing criteria, as long as such WQS variances are adopted consistent with 40 CFR 131.14. California may use EPA-approved WQS variance procedures when adopting such WQS variances. Compliance Schedules The EPA's regulations at 40 CFR 122.47 and 40 CFR 131.15 address how permitting authorities can use permit compliance schedules in NPDES permits if dischargers need additional time to undertake actions like facility upgrades or operation changes to meet their WQBELs based on the applicable WQS. The EPA's regulation at 40 CFR 122.47 allows permitting authorities to include compliance schedules in their NPDES permits, when appropriate and where authorized by the state or authorized tribe, in order to provide a discharger with additional time to meet its WQBELs implementing applicable WQS. The EPA's regulation at 40 CFR 131.15 requires that states and authorized tribes that choose to allow the use of NPDES permit compliance schedules adopt specific provisions authorizing their use and obtain the EPA approval under CWA section 303(c) to ensure that a decision to allow permit compliance schedules is transparent and allows for public input (80 FR 51022, August 21, 2015). The EPA's approval of the state's or authorized tribe's permit compliance schedule authorizing provision (CSAP) [[Page 64070]] as a WQS pursuant to 40 CFR 131.15 ensures that any NPDES permit that contains a compliance schedule meets the requirement that the WQBEL derive from and comply with all applicable WQS (40 CFR 122.44(d)(1)(vii)(A)). California is authorized to administer the NPDES program and has adopted several mechanisms to authorize compliance schedules in NPDES permits. In 2008, California adopted a statewide CSAP that the EPA subsequently approved under CWA section 303(c), the Policy for Compliance Schedules in National Pollutant Discharge Elimination System Permits, SWRCB Resolution No. 2008-0025, April 15, 2008. This EPA- approved regulation authorizes the use of permit compliance schedules consistent with 40 CFR 131.15, and is not affected by this rule. The CSAP will allow California, as the permitting authority, to use permit compliance schedules, as appropriate, for the purpose of achieving compliance with a WQBEL based on a final federal selenium criterion that is more stringent than the existing criteria for California, as soon as possible. VII. Economic Analysis The proposed criterion would serve as a basis for development of new or revised NPDES permit conditions for point source dischargers and additional best management practice (BMP) controls on nonpoint sources of pollutant loadings. The EPA cannot be certain of whether a particular discharger would change their operations if this proposed criterion were finalized and the discharger were found to have reasonable potential to cause or contribute to an exceedance of a WQS. Moreover, the EPA cannot anticipate how California would implement the criterion. California is authorized to administer the NPDES program and retains discretion in implementing WQS. In addition to examples laid out in Section VI--any of which would be consistent with the regulatory requirement at 40 CFR 122.44(d)(1)(i) to ensure that State NPDES permits comply with the applicable CWA WQS--the State can calculate water column criterion elements on a site-specific basis relying on the performance-based approach. Despite this discretion, if California determines that a permit is necessary, such permit would need to comply with the EPA's regulations at 40 CFR 122.44(d)(1)(i). Still, to best inform the public of the potential impacts of this proposed rule, the EPA made some assumptions to evaluate the potential costs associated with State implementation of the EPA's proposed criterion. The EPA chose to evaluate the expected costs associated with State implementation of the Agency's proposed selenium criterion based on available information. This analysis is documented in Economic Analysis for Proposed Selenium Water Quality Standards Applicable to the State of California, which can be found in the docket for this rulemaking. The EPA seeks public comment on all aspects of the economic analysis including, but not limited to, its assumptions relating to the baseline criteria, affected entities, implementation, and compliance costs. For the economic analysis, the EPA assumed the baseline to be full implementation of existing water quality criteria (i.e., ``baseline criteria'') and then estimated the incremental impacts for compliance with the selenium criterion in this proposed rule. Aside from the freshwater chronic criterion of 5 [mu]g/L established under the CTR, the EPA assumed that the following sites have site-specific criteria: The San Joaquin River from Sack Dam to Vernalis, Mud Slough, Salt Slough, the constructed and reconstructed water supply channels in the Grassland watershed, the surface water tributaries to the Salton Sea, and the San Francisco Bay Delta. There are approximately 76 existing selenium impairments pursuant to the existing baseline freshwater criterion of 5 [mu]g/L. The EPA assumes that the California Regional Water Quality Control Boards will develop total maximum daily loads (TMDLs) and implementation plans to bring all these waters into compliance with baseline criteria. Therefore, any incremental costs identified by the economic analysis to comply with the proposed criterion above and beyond the baseline are attributable to this proposed rule. For point source costs, any NPDES-permitted facility that discharges selenium could potentially incur compliance costs. The types of affected facilities could include industrial facilities and publicly owned treatment works (POTWs) discharging wastewater to fresh surface waters. To facilitate this analysis, the EPA interpreted the proposed criterion as the lentic and lotic water-column elements from the Agency's 2016 CWA section 304(a) selenium criterion for freshwater, and refer to this as the economic analysis criterion. Using the proposed performance-based approach detailed in Draft Translation of Selenium Tissue Criterion Elements to Site-Specific Water Column Criterion Elements for California Version 1, August 8, 2018, site-specific water- column translations of tissue elements may be more or less stringent than the economic analysis criterion for lentic and lotic waters. Because the economic analysis criterion reflects the 20th percentile of a national set of tissue element translations (see Figure 3.9 on page 92 of the EPA's 2016 selenium criterion document), the use of these values as proxies for the site-specific translations using the performance-based approach may be more or less conservative with respect to estimating potential associated costs of implementation. Hereafter in this section, the term ``economic analysis criterion'' refers to the lentic value of 1.5 [mu]g/L and the lotic value of 3.1 [mu]g/L as proxies for the performance-based approach water-column translations of the tissue elements. A. Identifying Affected Entities The EPA estimated costs to municipal, industrial, and other dischargers under the proposed criterion. The EPA used its Integrated Compliance Information System National Pollutant Discharge Elimination System (ICIS-NPDES) database to identify individually permitted facilities in California whose NPDES permits contain effluent limitations and/or monitoring requirements for selenium. The EPA excluded facilities that discharge to saltwater, as well as the facilities discharging to waters where SSC are in place for selenium (listed above). Based on this review, the EPA identified 110 facilities to evaluate for reasonable potential to cause or contribute to an exceedance of the applicable proposed criterion (i.e., the lentic or lotic water column value applicable based on the receiving water). Nineteen facilities demonstrated reasonable potential to exceed the applicable proposed criterion that results in the need for water quality-based effluent limits that could be lower than current limits. Even though the EPA only had sufficient data to analyze 110 facilities for reasonable potential to exceed the proposed criterion, the EPA identified 249 potentially affected facilities. See the Economic Analysis for more details. B. Method for Estimating Costs The EPA estimated costs for point source dischargers that receive more stringent limits based on the proposed criterion and existing effluent concentrations. The EPA reviewed facility permits, existing treatment systems, and available treatment technologies to develop likely compliance scenarios and associated incremental costs for each permittee to meet their proposed effluent limitations. [[Page 64071]] After the EPA costed for the facilities that demonstrated reasonable potential to exceed the proposed criterion, it extrapolated those costs to the remaining potentially affected facilities, when possible. To estimate costs for nonpoint source controls, the EPA compared available water quality measurements for selenium against the economic analysis criterion to identify lentic and lotic fresh waters that might be incrementally impaired under the proposed criterion. Although the State of California's implementation procedures may result in different waters identified as impaired for selenium and the State may choose a different approach to achieving water quality criteria, the EPA assumed, for the purpose of its cost analysis, that nonpoint dischargers of agricultural drainage return flows to impaired waters in regions with a high percentage of irrigated cropland would need to implement BMPs to reduce irrigation drainage. To estimate the potential incremental impact of the rule on nonpoint sources, the EPA identified the incrementally impaired waters with high proportions of cropland. The EPA's estimate for incremental BMPs costs included annualized costs for implementing drip irrigation to replace a less efficient type of irrigation to reduce the return flow from agricultural areas surrounding the impaired waters. The EPA also estimated the potential administrative costs to government entities to develop TMDLs for the potentially impaired waters. C. Results The EPA provides estimated costs to point source dischargers by type, based on capital and operation and maintenance costs, reported on an annual basis as the sum of annual O&M costs and capital costs annualized at a 3% discount rate over the 20-year life of the capital equipment. Total costs, if all controls were implemented in the first year, range from $34.1 to 50.2 million per year; when reflecting a 5- year phase-in due to NPDES permit cycle, total costs range from $31.0 to 45.7 million per year. Deferring some cost to later years reduces the total amount and is likely given the 5-year NPDES permit renewal cycle and staggered TMDL development. The estimated costs to nonpoint sources that may result from state implementation of the proposed criterion range from $9.9 to $11.0 million per year, using a 13-year TMDL phase-in period. The EPA annualized BMP capital costs over the expected useful life of the BMPs using a 3% discount rate and added annual operation and maintenance costs to derive annual cost estimates. See the Economic Analysis for more details. If there are incrementally impaired waters under the proposed criterion, then the California Regional Water Quality Control Boards may need to develop TMDLs for these waters, thereby incurring incremental government regulatory costs. If there is a separate TMDL for each of the 28 incrementally impaired waterbodies, and each TMDL costs between $37,000 and $40,000 to complete,\19\ then the cumulative costs for doing all of them in a single year may be $1.0 million to $1.1 million. Distributing this cost uniformly over 13 years results in annual costs of $0.08 to $0.09 million. --------------------------------------------------------------------------- \19\ These unit cost estimates derive from values provided in a U.S. EPA draft report from 2001, entitled The National Costs of the Total Maximum Daily Load Program (EPA 841-D-01-003), escalated to $2017. These unit costs per TMDL represent practices from nearly 20 years ago, and therefore may not reflect increased costs of analysis using more sophisticated contemporary methods. --------------------------------------------------------------------------- Note that, while this analysis is based on the best publicly available data, it may not fully reflect the impact of the proposed criterion. If additional monitoring data were available, or if the California Regional Water Quality Control Boards increase monitoring of ambient conditions in future assessment periods, additional impairments may be identified under the baseline and/or proposed criteria. Conversely, there may be fewer waters identified as impaired for selenium after California has fully implemented baseline activities to address sources of existing impairments for selenium or other contaminants (e.g., planned baseline BMPs for stormwater discharges from urban or industrial sources for metals TMDLs). Table 4 shows aggregate costs for point source controls, nonpoint source BMPs, and administrative costs for the 3% discount rate, where the total annual cost ranges from $41 million to $57 million. The 7% discount rate estimates of total annual costs range from $45 million to $61 million. See the economic analysis for full derivation. Table 4--Summary of Total Annual Cost Estimates [Millions; 2017$] ------------------------------------------------------------------------ Cost type Low cost High cost ------------------------------------------------------------------------ Point Sources \1\....................... $31.0 $45.7 Nonpoint Sources \1\.................... 9.9 11.0 Government Administration \2\........... 0.04 0.04 ------------------------------- Total............................... 40.9 56.7 ------------------------------------------------------------------------ \1\ Annual costs include capital costs annualized over the 20-year expected life of the equipment at 3% plus annual operating and maintenance costs. Annual costs also reflect a 5-year implementation period for point sources and a 13-year implementation period for nonpoint source BMPs. \2\ Total TMDL development costs are uniformly distributed over 13 years. VIII. Statutory and Executive Orders A. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) As determined by the Office of Management and Budget (OMB), this action is a significant regulatory action and was submitted to OMB for review. Any changes made during OMB's review have been documented in the docket. The EPA evaluated the potential costs to NPDES dischargers associated with State implementation of the EPA's proposed criteria. This analysis, Economic Analysis for Proposed Selenium Water Quality Standards Applicable to the State of California, is summarized in Section VII of the preamble and is available in the docket. B. Executive Order 13771 (Reducing Regulations and Controlling Regulatory Costs) This action is expected to be an Executive Order 13771 regulatory action. Details on the estimated costs of this proposed rule can be found in the EPA's analysis of the potential costs and benefits associated with this action. [[Page 64072]] C. Paperwork Reduction Act (PRA) This action does not impose an information collection burden under the PRA. While actions to implement these WQS could entail additional paperwork burden, this action does not directly contain any information collection, reporting, or record-keeping requirements. D. Regulatory Flexibility Act (RFA) I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. The EPA- promulgated WQS are implemented through various water quality control programs including the NPDES program, which limits discharges to navigable waters except in compliance with a NPDES permit. CWA Section 301(b)(1)(C) \20\ and the EPA's implementing regulations at 40 CFR 122.44(d)(1) and 122.44(d)(1)(A) provide that all NPDES permits shall include any limits on discharges that are necessary to meet applicable WQS. Thus, under the CWA, the EPA's promulgation of WQS establishes standards that the state implements through the NPDES permit process. While the state has discretion in developing discharge limits, as needed to meet the WQS, those limits, per regulations at 40 CFR 122.44(d)(1)(i), ``must control all pollutants or pollutant parameters (either conventional, nonconventional, or toxic pollutants) which the Director determines are or may be discharged at a level that will cause, have the reasonable potential to cause, or contribute to an excursion above any [s]tate water quality standard, including [s]tate narrative criteria for water quality.'' As a result of this action, the State of California will need to ensure that permits it issues include any limitations on discharges necessary to comply with the WQS established in the final rule. In doing so, the State will have a number of choices associated with permit writing. While California's implementation of the rule may ultimately result in new or revised permit conditions for some dischargers, including small entities, the EPA's action, by itself, does not impose any of these requirements on small entities; that is, these requirements are not self-implementing. --------------------------------------------------------------------------- \20\ 301(b) Timetable for Achievement of Objectives. In order to carry out the objective of this chapter there shall be achieved-- (1)(C): Not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter. --------------------------------------------------------------------------- E. Unfunded Mandates Reform Act (UMRA) This action does not contain any unfunded mandates as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. As these water quality criteria are not self- implementing, the action imposes no enforceable duty on any state, local or tribal governments or the private sector. F. Executive Order 13132 (Federalism) Under the technical requirements of Executive Order 13132, the EPA has determined that this proposed rule may not have federalism implications but believes that the consultation requirements of the Executive Order have been satisfied in any event. On several occasions over the course of February 2018 through September 2018, the EPA discussed with the California State Water Quality Control Board and several Regional Water Quality Control Boards the Agency's development of the federal rulemaking and clarified early in the process that if and when the State decided to develop and establish its own selenium standards, the EPA would instead assist the State in its process. During these discussions, the EPA explained the scientific basis for the fish and bird tissue elements of the selenium criterion and the methodologies for translating the tissue elements to water column values; the external peer review process and the comments the Agency received on the derivation of the criterion; the Agency's consideration of those comments and responses; possible alternatives for a criteria or criterion matrix; and the overall timing of the federal rulemaking effort. The EPA coordinated with the State and considered the State's initial feedback in making the Agency's decision to propose and solicit comment on the criterion matrix and the various options described in Section III. Proposed Criterion of this proposed rulemaking. The EPA specifically solicits comments on this proposed action from state and local officials. G. Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments) This action does not have tribal implications as specified in Executive Order 13175. This proposed rule does not impose substantial direct compliance costs on federally recognized tribal governments, nor does it substantially affect the relationship between the federal government and tribes, or the distribution of power and responsibilities between the federal government and tribes. Thus, Executive Order 13175 does not apply to this action. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, the EPA consulted with tribal officials during the development of this action. The EPA will continue to communicate with the tribes prior to its final action. H. Executive Order 13045 (Protection of Children From Environmental Health and Safety Risks) The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of ``covered regulatory action'' in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk. I. Executive Order 13211 (Actions That Significantly Affect Energy Supply, Distribution, or Use) This action is not a ``significant energy action'' because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. J. National Technology Transfer and Advancement Act of 1995 This proposed rulemaking does not involve technical standards. K. Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations) The human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations. The criteria in this proposed rule would support the health and abundance of aquatic life and aquatic-dependent wildlife in California and would, therefore, benefit all communities that rely on these ecosystems. List of Subjects in 40 CFR Part 131 Environmental protection, Incorporation by reference, Indians-- lands, Intergovernmental relations, Reporting and recordkeeping requirements, Water pollution control. [[Page 64073]] Dated: November 29, 2018. Andrew R. Wheeler, Acting Administrator. For the reasons set forth in the preamble, the EPA proposes to amend 40 CFR part 131 as follows: PART 131--WATER QUALITY STANDARDS 0 1. The authority citation for part 131 continues to read as follows: Authority: 33 U.S.C. 1251 et seq. 0 2. Amend Sec. 131.38 by revising the table in paragraph (b)(1) and paragraphs (c)(3)(ii) and (iii) to read as follows: Sec. 131.38 Establishment of numeric criteria for priority toxic pollutants for the State of California. * * * * * (b)(1) * * * -------------------------------------------------------------------------------------------------------------------------------------------------------- A B Freshwater C Saltwater D Human health (10-\6\ risk ------------------------------------------------------------------------------------------------------------------------- for carcinogens) for consumption of: Criterion Criterion Criterion Criterion ------------------------------- maximum continuous maximum continuous Water and Number compound CAS No. conc.\d\ conc.\d\ conc.\d\ conc.\d\ organisms Organisms only ([micro]g/L) ([micro]g/L) ([micro]g/L) ([micro]g/L) ([micro]g/L) ([micro]g/L) B1 B2 C1 C2 D1 D2 -------------------------------------------------------------------------------------------------------------------------------------------------------- 1. Antimony............................. 7440360 .............. .............. .............. .............. \a\ \s\ 14 \a\ \t\ 4300 2. Arsenic \b\.......................... 7440382 \i\ \m\ \w\ \i\ \m\ \w\ \i\ \m\ 69 \i\ \m\ 36 .............. .............. 340 150 3. Beryllium............................ 7440417 .............. .............. .............. .............. (\n\) (\n\) 4. Cadmium \b\.......................... 7440439 \e\ \i\ \m\ \e\ \i\ \m\ \i\ \m\ 42 \i\ \m\ 9.3 (\n\) (\n\) \w\ \x\ 4.3 \w\ 2.2 5a. Chromium (III)...................... 16065831 \e\ \i\ \m\ \e\ \i\ \m\ .............. .............. (\n\) (\n\) \o\ 550 \o\ 180 5b. Chromium (VI) \b\................... 18540299 \i\ \m\ \w\ 16 \i\ \m\ \w\ 11 \i\ \m\ 1100 \i\ \m\ 50 (\n\) (\n\) 6. Copper \b\........................... 7440508 \e\ \i\ \m\ \e\ \i\ \m\ \i\ \m\ 4.8 \i\ \m\ 3.1 1300 .............. \w\ \x\ 13 \w\ 9.0 7. Lead \b\............................. 7439921 \e\ \i\ \m\ \e\ \i\ \m\ \i\ \m\ 210 \i\ \m\ 8.1 (\n\) (\n\) \z\ 65 \z\ 2.5 8. Mercury \b\.......................... 7439976 [Reserved] [Reserved] [Reserved] [Reserved] \a\ 0.050 \a\ 0.051 9. Nickel \b\........................... 7440020 \e\ \i\ \m\ \e\ \i\ \m\ \i\ \m\ 74 \i\ \m\ 8.2 \a\ 610 \a\ 4600 \w\ 470 \w\ 52 10. Selenium \b\........................ 7782492 (\p\) (\q\ \aa\) \i\ \m\ 290 \i\ \m\ 71 (\n\) (\n\) 11. Silver \b\.......................... 7440224 \e\ \i\ \m\ .............. \i\ \m\ 1.9 .............. .............. .............. 3.4 12. Thallium............................ 7440280 .............. .............. .............. .............. \a\ \s\ 1.7 \a\ \t\ 6.3 13. Zinc \b\............................ 7440666 \e\ \i\ \m\ \e\ \i\ \m\ \i\ \m\ 90 \i\ \m\ 81 .............. .............. \w\ \x\ 120 \w\ 120 14. Cyanide \b\......................... 57125 \o\ 22 \o\ 5.2 \r\ 1 \r\ 1 \a\ 700 \a\ \j\ 220,000 15. Asbestos............................ 1332214 .............. .............. .............. .............. \k\ \s\ .............. 7,000,000 fibers/L 16. 2,3,7,8-TCDD (Dioxin)............... 1746016 .............. .............. .............. .............. \c\ \c\ 0.000000013 0.000000014 17. Acrolein............................ 107028 .............. .............. .............. .............. \s\ 320 \t\ 780 18. Acrylonitrile....................... 107131 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.059 0.66 19. Benzene............................. 71432 .............. .............. .............. .............. \a\ \c\ 1.2 \a\ \c\ 71 20. Bromoform........................... 75252 .............. .............. .............. .............. \a\ \c\ 4.3 \a\ \c\ 360 21. Carbon Tetrachloride................ 56235 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.25 4.4 22. Chlorobenzene....................... 108907 .............. .............. .............. .............. \a\ \s\ 680 \a\ \j\ \t\ 21,000 23. Chlorodibromomethane................ 124481 .............. .............. .............. .............. \a\ \c\ \y\ \a\ \c\ 34 0.41 24. Chloroethane........................ 75003 .............. .............. .............. .............. .............. .............. 25. 2-Chloroethylvinyl Ether............ 110758 .............. .............. .............. .............. .............. .............. 26. Chloroform.......................... 67663 .............. .............. .............. .............. [Reserved] [Reserved] 27. Dichlorobromomethane................ 75274 .............. .............. .............. .............. \a\ \c\ \y\ \a\ \c\ 46 0.56 28. 1,1-Dichloroethane.................. 75343 .............. .............. .............. .............. .............. .............. 29. 1,2-Dichloroethane.................. 107062 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 99 0.38 30. 1,1-Dichloroethylene................ 75354 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.057 3.2 31. 1,2-Dichloropropane................. 78875 .............. .............. .............. .............. \a\ 0.52 \a\ 39 32. 1,3-Dichloropropylene............... 542756 .............. .............. .............. .............. \a\ \s\ 10 \a\ \t\ 1,700 33. Ethylbenzene........................ 100414 .............. .............. .............. .............. \a\ \s\ 3,100 \a\ \t\ 29,000 34. Methyl Bromide...................... 74839 .............. .............. .............. .............. \a\ 48 \a\ 4,000 35. Methyl Chloride..................... 74873 .............. .............. .............. .............. (\n\) (\n\) 36. Methylene Chloride.................. 75092 .............. .............. .............. .............. \a\ \c\ 4.7 \a\ \c\ 1,600 37. 1,1,2,2-Tetrachloroethane........... 79345 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 11 0.17 38. Tetrachloroethylene................. 127184 .............. .............. .............. .............. \c\ \s\ 0.8 \c\ \t\ 8.85 39. Toluene............................. 108883 .............. .............. .............. .............. \a\ 6,800 \a\ 200,000 40. 1,2-Trans-Dichloroethylene.......... 156605 .............. .............. .............. .............. \a\ 700 \a\ 140,000 41. 1,1,1-Trichloroethane............... 71556 .............. .............. .............. .............. (\n\) (\n\) 42. 1,1,2-Trichloroethane............... 79005 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 42 0.60 [[Page 64074]] 43. Trichloroethylene................... 79016 .............. .............. .............. .............. \c\ \s\ 2.7 \c\ \t\ 81 44. Vinyl Chloride...................... 75014 .............. .............. .............. .............. \c\ \s\ 2 \c\ \t\ 525 45. 2-Chlorophenol...................... 95578 .............. .............. .............. .............. \a\ 120 \a\ 400 46. 2,4-Dichlorophenol.................. 120832 .............. .............. .............. .............. \a\ \s\ 93 \a\ \t\ 790 47. 2,4-Dimethylphenol.................. 105679 .............. .............. .............. .............. \a\ 540 \a\ 2,300 48. 2-Methyl-4,6-Dinitrophenol.......... 534521 .............. .............. .............. .............. \s\ 13.4 \t\ 765 49. 2,4-Dinitrophenol................... 51285 .............. .............. .............. .............. \a\ \s\ 70 \a\ \t\ 14,000 50. 2-Nitrophenol....................... 88755 .............. .............. .............. .............. .............. .............. 51. 4-Nitrophenol....................... 100027 .............. .............. .............. .............. .............. .............. 52. 3-Methyl-4-Chlorophenol............. 59507 .............. .............. .............. .............. .............. .............. 53. Pentachlorophenol................... 87865 \f\ \w\ 19 \f\ \w\ 15 13 7.9 \a\ \c\ 0.28 \a\ \c\ \j\ 8.2 54. Phenol.............................. 108952 .............. .............. .............. .............. \a\ 21,000 \a\ \j\ \t\ 4,600,000 55. 2,4,6-Trichlorophenol............... 88062 .............. .............. .............. .............. \a\ \c\ 2.1 \a\ \c\ 6.5 56. Acenaphthene........................ 83329 .............. .............. .............. .............. \a\ 1,200 \a\ 2,700 57. Acenaphthylene...................... 208968 .............. .............. .............. .............. .............. .............. 58. Anthracene.......................... 120127 .............. .............. .............. .............. \a\ 9,600 \a\ 110,000 59. Benzidine........................... 92875 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.00012 0.00054 60. Benzo(a)Anthracene.................. 56553 .............. .............. .............. .............. \a\ \c\ 0.0044 \a\ \c\ 0.049 61. Benzo(a)Pyrene...................... 50328 .............. .............. .............. .............. \a\ \c\ 0.0044 \a\ \c\ 0.049 62. Benzo(b)Fluoranthene................ 205992 .............. .............. .............. .............. \a\ \c\ 0.0044 \a\ \c\ 0.049 63. Benzo(ghi)Perylene.................. 191242 .............. .............. .............. .............. .............. .............. 64. Benzo(k)Fluoranthene................ 207089 .............. .............. .............. .............. \a\ \c\ 0.0044 \a\ \c\ 0.049 65. Bis(2-Chloroethoxy)Methane.......... 111911 .............. .............. .............. .............. .............. .............. 66. Bis(2-Chloroethyl)Ether............. 111444 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.031 1.4 67. Bis(2-Chloroisopropyl)Ether......... 108601 .............. .............. .............. .............. \a\ 1,400 \a\ \t\ 170,000 68. Bis(2-Ethylhexyl)Phthalate.......... 117817 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 1.8 5.9 69. 4-Bromophenyl Phenyl Ether.......... 101553 .............. .............. .............. .............. .............. .............. 70. Butylbenzyl Phthalate............... 85687 .............. .............. .............. .............. \a\ 3,000 \a\ 5,200 71. 2-Chloronaphthalene................. 91587 .............. .............. .............. .............. \a\ 1,700 \a\ 4,300 72. 4-Chlorophenyl Phenyl Ether......... 7005723 .............. .............. .............. .............. .............. .............. 73. Chrysene............................ 218019 .............. .............. .............. .............. \a\ \c\ 0.0044 \a\ \c\ 0.049 74. Dibenzo(a,h)Anthracene.............. 53703 .............. .............. .............. .............. \a\ \c\ 0.0044 \a\ \c\ 0.049 75. 1,2 Dichlorobenzene................. 95501 .............. .............. .............. .............. \a\ 2,700 \a\ 17,000 76. 1,3 Dichlorobenzene................. 541731 .............. .............. .............. .............. 400 2,600 77. 1,4 Dichlorobenzene................. 106467 .............. .............. .............. .............. 400 2,600 78. 3,3'-Dichlorobenzidine.............. 91941 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.04 0.077 79. Diethyl Phthalate................... 84662 .............. .............. .............. .............. \a\ \s\ 23,000 \a\ \t\ 120,000 80. Dimethyl Phthalate.................. 131113 .............. .............. .............. .............. \s\ 313,000 \t\ 2,900,000 81. Di-n-Butyl Phthalate................ 84742 .............. .............. .............. .............. \a\ \s\ 2,700 \a\ \t\ 12,000 82. 2,4-Dinitrotoluene.................. 121142 .............. .............. .............. .............. \c\ \s\ 0.11 \c\ \t\ 9.1 83. 2,6-Dinitrotoluene.................. 606202 .............. .............. .............. .............. .............. .............. 84. Di-n-Octyl Phthalate................ 117840 .............. .............. .............. .............. .............. .............. 85. 1,2-Diphenylhydrazine............... 122667 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.040 0.54 86. Fluoranthene........................ 206440 .............. .............. .............. .............. \a\ 300 \a\ 370 87. Fluorene............................ 86737 .............. .............. .............. .............. \a\ 1,300 \a\ 14,000 [[Page 64075]] 88. Hexachlorobenzene................... 118741 .............. .............. .............. .............. \a\ \c\ \a\ \c\ 0.00075 0.00077 89. Hexachlorobutadiene................. 87683 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 50 0.44 90. Hexachlorocyclopentadiene........... 77474 .............. .............. .............. .............. \a\ \s\ 240 \a\ \j\ \t\ 17,000 91. Hexachloroethane.................... 67721 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 1.9 8.9 92. Indeno(1,2,3-cd) Pyrene............. 193395 .............. .............. .............. .............. \a\ \c\ 0.0044 \a\ \c\ 0.049 93. Isophorone.......................... 78591 .............. .............. .............. .............. \c\ \s\ 8.4 \c\ \t\ 600 94. Naphthalene......................... 91203 .............. .............. .............. .............. .............. .............. 95. Nitrobenzene........................ 98953 .............. .............. .............. .............. \a\ \s\ 17 \a\ \j\ \t\ 1,900 96. N-Nitrosodimethylamine.............. 62759 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 0.00069 8.1 97. N-Nitrosodi-n-Propylamine........... 621647 .............. .............. .............. .............. \a\ 0.005 \a\ 1.4 98. N-Nitrosodiphenylamine.............. 86306 .............. .............. .............. .............. \a\ \c\ \s\ \a\ \c\ \t\ 16 5.0 99. Phenanthrene........................ 85018 .............. .............. .............. .............. .............. .............. 100. Pyrene............................. 129000 .............. .............. .............. .............. \a\ 960 \a\ 11,000 101. 1,2,4-Trichlorobenzene............. 120821 .............. .............. .............. .............. .............. .............. 102. Aldrin............................. 309002 \g\ 3 .............. \g\ 1.3 .............. \a\ \c\ \a\ \c\ 0.00013 0.00014 103. alpha-BHC.......................... 319846 .............. .............. .............. .............. \a\ \c\ 0.0039 \a\ \c\ 0.013 104. beta-BHC........................... 319857 .............. .............. .............. .............. \a\ \c\ 0.014 \a\ \c\ 0.046 105. gamma-BHC.......................... 58899 \w\ 0.95 .............. \g\ 0.16 .............. \c\ 0.019 \c\ 0.063 106. delta-BHC.......................... 319868 .............. .............. .............. .............. .............. .............. 107. Chlordane.......................... 57749 \g\ 2.4 \g\ 0.0043 \g\ 0.09 \g\ 0.004 \a\ \c\ \a\ \c\ 0.00057 0.00059 108. 4,4'-DDT........................... 50293 \g\ 1.1 \g\ 0.001 \g\ 0.13 \g\ 0.001 \a\ \c\ \a\ \c\ 0.00059 0.00059 109. 4,4'-DDE........................... 72559 .............. .............. .............. .............. \a\ \c\ \a\ \c\ 0.00059 0.00059 110. 4,4'-DDD........................... 72548 .............. .............. .............. .............. \a\ \c\ \a\ \c\ 0.00083 0.00084 111. Dieldrin........................... 60571 \w\ 0.24 \w\ 0.056 \g\ 0.71 \g\ 0.0019 \a\ \c\ \a\ \c\ 0.00014 0.00014 112. alpha-Endosulfan................... 959988 \g\ 0.22 \g\ 0.056 \g\ 0.034 \g\ 0.0087 \a\ 110 \a\ 240 113. beta-Endosulfan.................... 33213659 \g\ 0.22 \g\ 0.056 \g\ 0.034 \g\ 0.0087 \a\ 110 \a\ 240 114. Endosulfan Sulfate................. 1031078 .............. .............. .............. .............. \a\ 110 \a\ 240 115. Endrin............................. 72208 \w\ 0.086 \w\ 0.036 \g\ 0.037 \g\ 0.0023 \a\ 0.76 \a\ \j\ 0.81 116. Endrin Aldehyde.................... 7421934 .............. .............. .............. .............. \a\ 0.76 \a\ \j\ 0.81 117. Heptachlor......................... 76448 \g\ 0.52 \g\ 0.0038 \g\ 0.053 \g\ 0.0036 \a\ \c\ \a\ \c\ 0.00021 0.00021 118. Heptachlor Epoxide................. 1024573 \g\ 0.52 \g\ 0.0038 \g\ 0.053 \g\ 0.0036 \a\ \c\ \a\ \c\ 0.00010 0.00011 119-125. Polychlorinated biphenyls .............. .............. \u\ 0.014 .............. \u\ 0.03 \c\ \v\ \c\ \v\ (PCBs)................................. 0.00017 0.00017 126. Toxaphene.......................... 8001352 0.73 0.0002 0.21 0.0002 \a\ \c\ \a\ \c\ 0.00073 0.00075 --------------------------------------------------------------------------------------------------------------- Total Number of Criteria \h\........ .............. 22 21 22 20 92 90 -------------------------------------------------------------------------------------------------------------------------------------------------------- Footnotes to Table In Paragraph (b)(1): \a\ Criteria revised to reflect the Agency q1* or RfD, as contained in the Integrated Risk Information System (IRIS) as of October 1, 1996. The fish tissue bioconcentration factor (BCF) from the 1980 documents was retained in each case. \b\ Criteria apply to California waters except for those waters subject to objectives in Tables III-2A and III-2B of the San Francisco Regional Water Quality Control Board's (SFRWQCB) 1986 Basin Plan that were adopted by the SFRWQCB and the State Water Resources Control Board, approved by the EPA, and which continue to apply. For copper and nickel, criteria apply to California waters except for waters south of Dumbarton Bridge in San Francisco Bay that are subject to the objectives in the SFRWQCB's Basin Plan as amended by SFRWQCB Resolution R2-2002-0061, dated May 22, 2002, and approved by the State Water Resources Control Board. The EPA approved the aquatic life site-specific objectives on January 21, 2003. The copper and nickel aquatic life site-specific objectives contained in the amended Basin Plan apply instead. \c\ Criteria are based on carcinogenicity of 10 (-6) risk. \d\ Criteria Maximum Concentration (CMC) equals the highest concentration of a pollutant to which aquatic life can be exposed for a short period of time without deleterious effects. Criteria Continuous Concentration (CCC) equals the highest concentration of a pollutant to which aquatic life can be exposed for an extended period of time (4 days) without deleterious effects. ug/L equals micrograms per liter. \e\ Freshwater aquatic life criteria for metals are expressed as a function of total hardness (mg/L) in the water body. The equations are provided in matrix at paragraph (b)(2) of this section. Values displayed above in the matrix correspond to a total hardness of 100 mg/l. \f\ Freshwater aquatic life criteria for pentachlorophenol are expressed as a function of pH, and are calculated as follows: Values displayed above in the matrix correspond to a pH of 7.8. CMC = exp(1.005(pH)-4.869). CCC = exp(1.005(pH)-5.134). [[Page 64076]] \g\ This criterion is based on 304(a) aquatic life criterion issued in 1980, and was issued in one of the following documents: Aldrin/Dieldrin (EPA 440/ 5-80-019), Chlordane (EPA 440/5-80-027), DDT (EPA 440/5-80-038), Endosulfan (EPA 440/5-80-046), Endrin (EPA 440/5-80-047), Heptachlor (440/5-80-052), Hexachlorocyclohexane (EPA 440/5-80-054), Silver (EPA 440/5-80-071). The Minimum Data Requirements and derivation procedures were different in the 1980 Guidelines than in the 1985 Guidelines. For example, a ``CMC'' derived using the 1980 Guidelines was derived to be used as an instantaneous maximum. If assessment is to be done using an averaging period, the values given should be divided by 2 to obtain a value that is more comparable to a CMC derived using the 1985 Guidelines. \h\ These totals simply sum the criteria in each column. For aquatic life, there are 23 priority toxic pollutants with some type of freshwater or saltwater, acute or chronic criteria. For human health, there are 92 priority toxic pollutants with either ``water + organism'' or ``organism only'' criteria. Note that these totals count chromium as one pollutant even though the EPA has developed criteria based on two valence states. In the matrix, the EPA has assigned numbers 5a and 5b to the criteria for chromium to reflect the fact that the list of 126 priority pollutants includes only a single listing for chromium. \i\ Criteria for these metals are expressed as a function of the water-effect ratio, WER, as defined in paragraph (c) of this section. CMC = column B1 or C1 value x WER; CCC = column B2 or C2 value x WER. \j\ No criterion for protection of human health from consumption of aquatic organisms (excluding water) was presented in the 1980 criteria document or in the 1986 Quality Criteria for Water. Nevertheless, sufficient information was presented in the 1980 document to allow a calculation of a criterion, even though the results of such a calculation were not shown in the document. \k\ The CWA 304(a) criterion for asbestos is the MCL. \l\ [Reserved]. \m\ These freshwater and saltwater criteria for metals are expressed in terms of the dissolved fraction of the metal in the water column. Criterion values were calculated by using the EPA's Clean Water Act 304(a) guidance values (described in the total recoverable fraction) and then applying the conversion factors in Sec. 131.36(b)(1) and (2). \n\ The EPA is not promulgating human health criteria for these contaminants. However, permit authorities should address these contaminants in NPDES permit actions using the State's existing narrative criteria for toxics. \o\ These criteria were promulgated for specific waters in California in the National Toxics Rule (``NTR''), at Sec. 131.36. The specific waters to which the NTR criteria apply include: Waters of the State defined as bays or estuaries and waters of the State defined as inland, i.e., all surface waters of the State not ocean waters. These waters specifically include the San Francisco Bay upstream to and including Suisun Bay and the Sacramento- San Joaquin Delta. This section does not apply instead of the NTR for this criterion. \p\ No acute criterion applies except as follows. A criterion of 20 [micro]g/L was promulgated for specific waters in California in the NTR in the total recoverable form and still applies to waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; waters of Salt Slough; Mud Slough (north); and the San Joaquin River, Sack Dam to the mouth of Merced River. The State of California adopted and the EPA approved site-specific acute criteria that still apply to the San Joaquin River, mouth of Merced to Vernalis; Salt Slough; constructed and reconstructed water supply channels in the Grassland watershed listed in Appendix 40 of the State of California Central Valley Regional Water Quality Control Board Basin Plan; and all surface waters that are tributaries to the Salton Sea. \q\ The chronic criterion specified in footnote aa applies except as follows. A chronic criterion of 5 [micro]g/L was promulgated for specific waters in California in the NTR in the total recoverable form and still applies to waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; waters of Salt Slough; Mud Slough (north); and the San Joaquin River, Sack Dam to Vernalis. Footnote aa does not apply instead of the NTR for these waters. The State of California adopted and the EPA approved a site-specific criterion for the Salt Slough, constructed and reconstructed water supply channels in the Grassland watershed listed in appendix 40 of the State of California Central Valley Regional Water Quality Control Board Basin Plan, and all surface waters that are tributaries to the Salton Sea; therefore, footnote aa does not apply to these waters. \r\ These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include: Waters of the State defined as bays or estuaries including the Sacramento-San Joaquin Delta within California Regional Water Board 5, but excluding the San Francisco Bay. This section does not apply instead of the NTR for these criteria. \s\ These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include: Waters of the Sacramento-San Joaquin Delta and waters of the State defined as inland (i.e., all surface waters of the State not bays or estuaries or ocean) that include a MUN use designation. This section does not apply instead of the NTR for these criteria. \t\ These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include: Waters of the State defined as bays and estuaries including San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta; and waters of the State defined as inland (i.e., all surface waters of the State not bays or estuaries or ocean) without a MUN use designation. This section does not apply instead of the NTR for these criteria. \u\ PCBs are a class of chemicals which include aroclors 1242, 1254, 1221, 1232, 1248, 1260, and 1016, CAS numbers 53469219, 11097691, 11104282, 11141165, 12672296, 11096825, and 12674112, respectively. The aquatic life criteria apply to the sum of this set of seven aroclors. \v\ This criterion applies to total PCBs, e.g., the sum of all congener or isomer or homolog or aroclor analyses. \w\ This criterion has been recalculated pursuant to the 1995 Updates: Water Quality Criteria Documents for the Protection of Aquatic Life in Ambient Water, Office of Water, EPA-820-B-96-001, September 1996. See also Great Lakes Water Quality Initiative Criteria Documents for the Protection of Aquatic Life in Ambient Water, Office of Water, EPA-80-B-95-004, March 1995. \x\ The State of California has adopted and the EPA has approved site specific criteria for the Sacramento River (and tributaries) above Hamilton City; therefore, these criteria do not apply to these waters. \y\ The State of California adopted and the EPA approved a site-specific criterion for New Alamo Creek from Old Alamo Creek to Ulatis Creek and for Ulatis Creek from Alamo Creek to Cache Slough; therefore, this criterion does not apply to these waters. \z\ The State of California adopted and the EPA approved a site-specific criterion for the Los Angeles River and its tributaries; therefore, this criterion does not apply to these waters. aa Proposed California Freshwater Selenium Ambient Chronic Water Quality Criterion for Protection of Aquatic Life and Aquatic-Dependent Wildlife [[Page 64077]] [GRAPHIC] [TIFF OMITTED] TP13DE18.008 General Notes to Table in Paragraph (b)(1) 1. The table in this paragraph (b)(1) lists all of the EPA's priority toxic pollutants whether or not criteria guidance are available. Blank spaces indicate the absence of national section 304(a) criteria guidance. Because of variations in chemical nomenclature systems, this listing of toxic pollutants does not duplicate the listing in appendix A to 40 CFR part 423-126 Priority Pollutants. The EPA has added the Chemical Abstracts Service (CAS) registry numbers, which provide a unique identification for each chemical. 2. The following chemicals have organoleptic-based criteria recommendations that are not included on this chart: Zinc, 3-methyl-4- chlorophenol. 3. Freshwater and saltwater aquatic life criteria apply as specified in paragraph (c)(3) of this section. * * * * * (c) * * * (3) * * * (ii) For waters in which the salinity is equal to or greater than 10 parts per [[Page 64078]] thousand 95% or more of the time, the applicable criteria are the saltwater criteria in Column C, except for selenium in waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta where the applicable criteria are the freshwater criteria in Column B of the National Toxic Rule (``NTR'') at Sec. 131.36. (iii) For waters in which the salinity is between 1 and 10 parts per thousand as defined in paragraphs (c)(3)(i) and (ii) of this section, the applicable criteria are the more stringent of the freshwater or saltwater criteria, except for selenium in waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin Delta where the applicable criteria are the freshwater criteria in Column B of the NTR. However, the Regional Administrator may approve the use of the alternative freshwater or saltwater criteria if scientifically defensible information and data demonstrate that on a site-specific basis the biology of the water body is dominated by freshwater aquatic life and that freshwater criteria are more appropriate; or conversely, the biology of the water body is dominated by saltwater aquatic life and that saltwater criteria are more appropriate. Before approving any change, the EPA will publish for public comment a document proposing the change. * * * * * [FR Doc. 2018-26781 Filed 12-12-18; 8:45 am] BILLING CODE 6560-50-P
![Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules 64059
• Does not have Federalism SUMMARY: The Environmental Protection available only in hard copy. Publicly
implications as specified in Executive Agency (EPA) is proposing to establish available docket materials are available
Order 13132 (64 FR 43255, August 10, a federal Clean Water Act (CWA) either electronically in
1999); selenium water quality criterion www.regulations.gov or in hard copy at
• Is not an economically significant applicable to California that protects two Docket Facilities. The Office of
regulatory action based on health or aquatic life and aquatic-dependent Water (‘‘OW’’) Docket Center is open
safety risks subject to Executive Order wildlife in the fresh waters of California. from 8:30 a.m. until 4:30 p.m., Monday
13045 (62 FR 19885, April 23, 1997); In 2016, the EPA published a revised through Friday, excluding legal
• Is not a significant regulatory action recommended aquatic life selenium holidays. The Docket telephone number
subject to Executive Order 13211 (66 FR criterion for freshwater based on the is (202) 566–2426 and the Docket
28355, May 22, 2001); latest scientific knowledge. The EPA is address is OW Docket, EPA West, Room
• Is not subject to requirements of proposing to amend the California 3334, 1301 Constitution Ave. NW,
Section 12(d) of the National Toxics Rule to include a revised Washington, DC 20004. The Public
Technology Transfer and Advancement statewide chronic selenium water Reading Room is open from 8:30 a.m. to
Act of 1995 (15 U.S.C. 272 note) because quality criterion for California fresh 4:30 p.m., Monday through Friday,
application of those requirements would waters to protect aquatic life and excluding legal holidays. The telephone
be inconsistent with the CAA; and aquatic-dependent wildlife which number for the Public Reading Room is
• Does not provide EPA with the builds upon the science in the EPA’s (202) 566–1744.
discretionary authority to address, as 2016 Final Aquatic Life Ambient Water Public Hearings: The EPA is offering
appropriate, disproportionate human Quality Criteria for Selenium— two online public hearings so that
health or environmental effects, using Freshwater. interested parties may provide oral
practicable and legally permissible comments on this proposed rulemaking.
DATES: Comments date: Comments must
methods, under Executive Order 12898 For more details on the public hearings
be received on or before February 11,
(59 FR 7629, February 16, 1994). and a link to register, please visit
2019. https://www.epa.gov/wqs-tech/water-
In addition, the SIP is not approved Public hearing dates: Tuesday,
to apply on any Indian reservation land quality-standards-establishment-
January 29, 2019 from 9 a.m.–11 a.m.
or in any other area where EPA or an numeric-criterion-selenium-fresh-
PT, Wednesday, January 30, 2019 from
Indian tribe has demonstrated that a waters-california.
4 p.m.–6 p.m. PT.
tribe has jurisdiction. In those areas of FOR FURTHER INFORMATION CONTACT:
ADDRESSES: Comments: Submit your
Indian country, the rule does not have Julianne McLaughlin, Office of Water,
comments, identified by Docket ID No.
tribal implications and will not impose Standards and Health Protection
EPA–HQ–OW–2018–0056, at https://
substantial direct costs on tribal Division (4305T), U.S. Environmental
www.regulations.gov (our preferred
governments or preempt tribal law as Protection Agency, 1200 Pennsylvania
method), or the other methods
specified by Executive Order 13175 (65 Avenue NW, Washington, DC 20460;
identified at https://www.epa.gov/
FR 67249, November 9, 2000). telephone number: (202) 566–2542;
dockets/commenting-epa-dockets. Once
email address: mclaughlin.julianne@
List of Subjects in 40 CFR Part 52 submitted, comments cannot be edited
epa.gov; or Diane E. Fleck, P.E., Esq.,
or removed from the docket. The EPA
Environmental protection, Air Water Division (WTR–2–1), U.S.
may publish any comment received to
pollution control, Carbon monoxide, Environmental Protection Agency
its public docket. Do not submit
Incorporation by reference, Region 9, 75 Hawthorne Street, San
electronically any information you
Intergovernmental relations, Lead, Francisco, CA 94105; telephone
consider to be Confidential Business
Nitrogen dioxide, Ozone, Particulate number: (415) 972–3527; email address:
Information (CBI) or other information
matter, Reporting and recordkeeping Fleck.Diane@EPA.gov.
whose disclosure is restricted by statute.
requirements, Sulfur oxides, Volatile Multimedia submissions (audio, video, SUPPLEMENTARY INFORMATION: This
organic compounds. etc.) must be accompanied by a written proposed rule is organized as follows:
Dated: November 27, 2018. comment. The written comment is I. General Information
Cathy Stepp, considered the official comment and II. Background
should include discussion of all points A. Statutory and Regulatory Authority
Regional Administrator, Region 5.
B. National Toxics Rule
[FR Doc. 2018–26924 Filed 12–12–18; 8:45 am] you wish to make. The EPA will C. California Toxics Rule
BILLING CODE 6560–50–P
generally not consider comments or D. Litigation
comment contents located outside of the E. Selenium and Sources of Selenium
primary submission (i.e., on the web, III. Proposed Criterion
ENVIRONMENTAL PROTECTION cloud, or other file sharing system). For A. Approach
AGENCY additional submission methods, the full B. Administrator’s Determination of
EPA public comment policy, Necessity
40 CFR Part 131 information about CBI or multimedia C. Proposed Criterion
D. Implementation
[EPA–HQ–OW–2018–0056; FRL–9987–61–
submissions, and general guidance on E. Incorporation by Reference
OW] making effective comments, please visit IV. Endangered Species Act
https://www.epa.gov/dockets/ V. Applicability of the EPA Promulgated
RIN 2040–AF79 commenting-epa-dockets. Water Quality Standards When Final
amozie on DSK3GDR082PROD with PROPOSALS1
Docket: All documents in the docket VI. Implementation and Alternative
Water Quality Standards; are listed in the www.regulations.gov Regulatory Approaches
Establishment of a Numeric Criterion index. Although listed in the index, II. Economic Analysis
for Selenium for the State of California some information is not publicly A. Identifying Affected Entities
B. Method for Estimating Costs
AGENCY: Environmental Protection available, e.g., CBI or other information C. Results
Agency (EPA). whose disclosure is restricted by statute. VIII. Statutory and Executive Orders
Certain other material, such as A. Executive Order 12866 (Regulatory
ACTION: Proposed rule.
copyrighted material, will be publicly Planning and Review) and Executive
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![64060 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules
Order 13563 (Improving Regulation and I. Executive Oder 13211 (Actions That (POTWs) that directly or indirectly
Regulatory Review) Significantly Affect Energy Supply, discharge selenium to the fresh waters
B. Executive Order 13771 (Reducing Distribution, or Use) of California could be indirectly affected
Regulations and Controlling Regulatory J. National Technology Transfer and
Costs) Advancement Act of 1995 by this rulemaking because federal
C. Paperwork Reduction Act (PRA) K. Executive Order 12898 (Federal Actions water quality standards (WQS)
D. Regulatory Flexibility Act (RFA) to Address Environmental Justice in promulgated by the EPA would apply to
E. Unfunded Mandates Reform Act Minority Populations and Low-Income CWA regulatory programs, such as
(UMRA) Populations) National Pollutant Discharge
F. Executive Order 13132 (Federalism) Elimination System (NPDES)
G. Executive Order 13175 (Consultation I. General Information
permitting. Citizens concerned with
and Coordination With Indian Tribal Applicability
Governments) water quality in California could also be
H. Executive Order 13045 (Protection of Entities such as industries, interested in this rulemaking. Categories
Children from Environmental Health and stormwater management districts, or and entities that could be affected
Safety Risks) publicly owned treatment works include the following:
Category Examples of potentially-affected entities
Industry ........................................... Industries discharging pollutants to fresh waters of California.
Municipalities ................................... Publicly owned treatment works or other facilities discharging pollutants to fresh waters of California.
Stormwater Management Districts .. Entities responsible for managing stormwater discharges to fresh waters of California.
Agriculture ....................................... Entities with agriculture drainage to fresh waters of California.
This table is not intended to be whenever a state revises or adopts a new 131.21). Under CWA section
exhaustive, but rather provides a guide standard that the state’s WQS specify 303(c)(4)(B),4 the Administrator is
for readers regarding entities that could designated uses of the waters and water authorized to determine that a new or
be affected by this action. Any parties or quality criteria based on those uses. The revised standard is needed to meet CWA
entities who depend upon or contribute EPA’s regulations at 40 CFR 131.11(a)(1) requirements.
to the water quality of California waters provide that ‘‘[s]uch criteria must be Under CWA section 304(a), the EPA
where the freshwater criterion would based on sound scientific rationale and periodically publishes criteria
apply could be indirectly affected by must contain sufficient parameters or recommendations for states to consider
this proposed rule. To determine constituents to protect the designated when adopting water quality criteria for
whether your facility or activities could use [and] [f]or waters with multiple use particular pollutants to meet the CWA
be affected by this action, you should designations, the criteria shall support section 101(a)(2) goals. In establishing
carefully examine this proposed rule. If the most sensitive use.’’ In addition, 40 numeric criteria, states should adopt
you have questions regarding the CFR 131.10(b) provides that ‘‘[i]n water quality criteria based on the EPA’s
applicability of this action to a designating uses of a water body and the CWA section 304(a) criteria, section
particular entity, consult the person appropriate criteria for those uses, the 304(a) criteria modified to reflect site-
listed in the FOR FURTHER INFORMATION [s]tate shall take into consideration the specific conditions, or other
CONTACT section. water quality standards of downstream scientifically defensible methods (40
waters and shall ensure that its water CFR 131.11(b)(1)). CWA section
II. Background 303(c)(2)(B) 5 requires states to adopt
quality standards provide for the
A. Statutory and Regulatory Authority attainment and maintenance of the
CWA section 101(a)(2) (33 U.S.C. water quality standards of downstream standard for the applicable waters of that State. If
waters.’’ the Administrator determines that any such revised
1251(a)(2)) establishes a national goal, or new standard is not consistent with the
wherever attainable, of ‘‘water quality States are required to review applicable requirements of this chapter, he shall not
which provides for the protection and applicable WQS at least once every later than the ninetieth day after the date of
propagation of fish, shellfish, and three years and, if appropriate, revise or submission of such standard notify the State and
adopt new WQS (CWA section specify the changes to meet such requirements. If
wildlife and provides for recreation in such changes are not adopted by the State within
and on the water . . .’’ In this proposal, 303(c)(1) 2 and 40 CFR 131.20). Any new ninety days after the date of notification, the
the relevant goals are the protection and or revised WQS must be submitted to Administrator shall promulgate such standard
the EPA for review and approval or pursuant to paragraph (4) of this subsection.
propagation of fish, shellfish, and 4 CWA 303(c)(4): The Administrator shall
wildlife. disapproval (CWA section 303(c)(2)(A)
promptly prepare and publish proposed regulations
CWA section 303(c) (33 U.S.C. and (c)(3) 3 and 40 CFR 131.20 and setting forth a revised or new water quality standard
1313(c)) directs states to adopt WQS for for the navigable waters involved—(A) if a revised
agricultural, industrial, and other purposes, and or new water quality standard submitted by such
their waters subject to the CWA. CWA also taking into consideration their use and value State under paragraph (3) of this subsection for such
section 303(c)(2)(A) 1 requires that for navigation. waters is determined by the Administrator not to be
2 CWA 303(c)(1): The Governor of a State or the consistent with the applicable requirements of this
1 CWA 303(c)(2)(A): Whenever the State revises or state water pollution control agency of such State chapter, or (B) in any case where the Administrator
adopts a new standard, such revised or new shall from time to time (but at least once each three determines that a revised or new standard is
standard shall be submitted to the Administrator. year period beginning with October 18, 1972) hold necessary to meet the requirements of this chapter.
amozie on DSK3GDR082PROD with PROPOSALS1
Such revised or new water quality standard shall public hearings for the purpose of reviewing The Administrator shall promulgate any revised or
consist of the designated uses of the navigable applicable water quality standards and, as new standard under this paragraph not later than
waters involved and the water quality criteria for appropriate, modifying and adopting standards. ninety days after he publishes such proposed
such waters based upon such uses. Such standards Results of such review shall be made available to standards, unless prior to such promulgation, such
shall be such as to protect the public health or the Administrator. State has adopted a revised or new water quality
welfare, enhance the quality of water and serve the 3 CWA 303(c)(3): If the Administrator, within standard which the Administrator determines to be
purposes of this chapter. Such standards shall be sixty days after the date of submission of the in accordance with this chapter.
established taking into consideration their use and revised or new standard, determines that such 5 CWA 303(c)(2)(B): Whenever a State reviews
value for public water supplies, propagation of fish standard meets the requirements of this chapter, water quality standards pursuant to paragraph (1)
and wildlife, recreational purposes, and such standard shall thereafter be the water quality of this subsection, or revises or adopts new
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designated uses.8 The criteria that the apply in certain situations: (1) The mouth of the Merced River, to be
EPA previously promulgated for freshwater criteria apply at salinities of consistent with the previously
California in the NTR,9 together with 1 part per thousand 13 and below at promulgated criteria in the NTR.
the criteria promulgated in the CTR and locations where this occurs 95% or This proposed rule does not apply to
California’s designated uses and more of the time; (2) the saltwater the San Joaquin River from Sack Dam to
antidegradation provisions, established criteria apply at salinities of 10 parts per Vernalis, Mud Slough, or Salt Slough
WQS for priority toxic pollutants for thousand and above at locations where because they have applicable selenium
inland surface waters and enclosed bays this occurs 95% or more of the time; criteria from the NTR and/or approved
and estuaries in California. and (3) at salinities between 1 and 10 CVRWQCB site-specific criteria
As required by section 7 of the parts per thousand, the more stringent (objectives). This proposed rule also
Endangered Species Act (ESA) (16 of the two apply. does not apply to the constructed and
U.S.C. 1531 et seq.), the EPA had In addition to the NTR and CTR acute reconstructed water supply channels in
consulted with the U.S. Fish and and chronic criteria for selenium the Grassland watershed listed in
Wildlife Service (FWS) and the U.S. discussed in the preceding paragraphs, Appendix 40 of the CVRWQCB’s Basin
National Marine Fisheries Service California had also adopted site-specific Plan. The CVRWQCB’s Staff Report for
(NMFS) (collectively, the Services) acute and chronic criteria (objectives) in the Basin Plan amendment indicates
concerning the EPA’s rulemaking the lower San Joaquin River area. In that the existing chronic 2 mg/L monthly
actions for California. The EPA initiated 1990, prior to the NTR, the Central mean objective is intended to protect
consultation in 1994, and in March Valley Regional Water Quality Control both aquatic life and waterfowl from the
2000, the Services issued a final Joint Board (CVRWQCB) adopted, and the toxic effects of selenium. This proposed
Biological Opinion. The final Joint EPA approved, an acute selenium rule does apply the revised chronic
Biological Opinion 10 recorded objective of 12 mg/L maximum criterion to the waters of the San Luis
commitments by the EPA to withhold concentration for the San Joaquin River, National Wildlife Refuge and the Los
promulgation of (i.e., reserve) the EPA’s mouth of Merced River to Vernalis, and Banos State Wildlife Refuge to protect
proposed acute 11 freshwater aquatic life a chronic site-specific objective for the aquatic life and wildlife from short-term
criterion for selenium in the final CTR Grassland Water District, the San Luis and long-term exposures of selenium.
and revise the CWA section 304(a) National Wildlife Refuge, and the Los The proposed rule also does not apply
recommended acute and chronic aquatic Banos State Wildlife Refuge of 2 mg/L to surface waters that are tributaries to
life criteria for selenium and later monthly mean. Therefore, the State the Salton Sea. The Colorado River
update the criteria for California acute criterion is effective for the San Regional Water Quality Control Board
consistent with the revised Joaquin River, mouth of Merced River to adopted, and the EPA approved on May
recommendations. Subsequently, the Vernalis. 29, 2000, site-specific selenium water
EPA reserved the acute freshwater In addition, the EPA did not quality objectives ‘‘for all surface waters
selenium criterion and finalized the promulgate a chronic criterion for the that are tributaries to the Salton Sea.’’
chronic freshwater selenium criterion in Grassland Water District, the San Luis The site-specific objectives consist of an
the May 2000 CTR, as well as the acute National Wildlife Refuge, and the Los acute objective of 20 mg/L one-hour
and chronic saltwater selenium criteria. Banos State Wildlife Refuge in the CTR. average and a chronic objective of 5 mg/
Because a distinct separation The CVRWQCB subsequently amended L four-day average (The Water Quality
generally does not exist between its Basin Plan, to apply the chronic 2 mg/ Control Plan (Basin Plan) for the
freshwater and saltwater aquatic L monthly mean selenium objective California Regional Water Quality
communities, the EPA further (and an acute 20 mg/L maximum Control Board Colorado River Basin
established the following rule in the concentration objective) only to ‘‘Salt Region, August 2017).
CTR 12 for determining which criteria to Slough and constructed and The State of California has nine
reconstructed water supply channels in Regional Water Quality Control Boards
8 See the CTR preamble at section E. Rationale
the Grassland watershed listed in (Regional Boards), each located in and
and Approach for Developing the Final Rule, 1. overseeing different areas of the State.
Legal Basis, ‘‘EPA is using section 303(c)(4)(B) as Appendix 40 [of the CVRWQCB Basin
the legal basis for today’s final rule.’’ 65 FR 31687, Plan]’’ (The Water Quality Control Plan Each Regional Board has a regional
May 18, 2000. (Basin Plan) for the California Regional water quality control plan (Basin Plan)
9 The CTR Criteria Table at 40 CFR 131.38(b)(1)
Water Quality Control Board Central that sets forth the EPA-approved
includes all water quality criteria previously designated (beneficial) uses for the
promulgated in the NTR, so that readers can find Valley Region, Fourth Edition, July
all federally promulgated water quality criteria for 2016). The EPA approved this change to waterbodies it oversees. Once the EPA
California in one place. All criteria previously California’s WQS under CWA section finalizes the proposed criterion, the
promulgated in the NTR are footnoted as such in
303(c) in a letter dated May 24, 2000. criterion becomes the applicable CWA-
the CTR. effective criterion for CWA
10 Final Joint Biological Opinion dated March 24, The Basin Plan amendment also
2000, from the National Marine Fisheries Service, included a chronic site-specific implementation purposes by each of the
Long Beach, California, and the U.S. Fish and objective of 5 mg/L (4-day average) for Regional Boards.
Wildlife Service, Sacramento, California,
concerning the EPA’s final rule for the
Mud Slough (north) and for the San D. Litigation
Promulgation of Water Quality Standards: Joaquin River from Sack Dam to
In 2013, two organizations filed a
Establishment of Numeric Criteria for Priority Toxic Vernalis, and an acute objective of 20
Pollutants for the State of California (CTR). legal complaint against the EPA in the
mg/L for Mud Slough (north) and the
11 The proposed freshwater acute selenium United States District Court for the
San Joaquin River from Sack Dam to the
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criterion in the CTR was as follows: The CMC = l/ Northern District of California. The
[(f1/CMC1) + (f2/CMC2)] where f1 and f2 are the
fractions of total selenium that are treated as 13 In previous federal rules, including the NTR complaint was based in part on the fact
selenite and selenate respectively, and f1 + f2 = 1. and the CTR, salinity was referred to using the units that the EPA had previously
CMC1 and CMC2 are the CMCs for selenite and of parts per thousand (ppt). Since these rules were determined, in the proposed CTR, that
selenate, respectively, or 185.9 mg/L and 12.83 mg/ published, the scientific community has started an acute criterion was necessary to
L, respectively. This criterion was in the total referring to salinity in practical salinity units (psu).
recoverable form. CMC is the continuous maximum This proposed rule will stay consistent with the
implement section 303(c)(2)(B) of the
concentration. CTR terminology, but it should be noted that ppt CWA (62 FR 42160, August 5, 1997) and
12 See the CTR at 40 CFR 131.38 (c)(3). is generally no longer used to describe salinity. the work to update the reserved
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![Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules 64071
After the EPA costed for the facilities entities to develop TMDLs for the thereby incurring incremental
that demonstrated reasonable potential potentially impaired waters. government regulatory costs. If there is
to exceed the proposed criterion, it a separate TMDL for each of the 28
C. Results
extrapolated those costs to the incrementally impaired waterbodies,
remaining potentially affected facilities, The EPA provides estimated costs to and each TMDL costs between $37,000
when possible. point source dischargers by type, based and $40,000 to complete,19 then the
on capital and operation and cumulative costs for doing all of them
To estimate costs for nonpoint source
maintenance costs, reported on an in a single year may be $1.0 million to
controls, the EPA compared available
annual basis as the sum of annual O&M $1.1 million. Distributing this cost
water quality measurements for
costs and capital costs annualized at a uniformly over 13 years results in
selenium against the economic analysis
3% discount rate over the 20-year life of annual costs of $0.08 to $0.09 million.
criterion to identify lentic and lotic the capital equipment. Total costs, if all Note that, while this analysis is based
fresh waters that might be incrementally controls were implemented in the first on the best publicly available data, it
impaired under the proposed criterion. year, range from $34.1 to 50.2 million may not fully reflect the impact of the
Although the State of California’s per year; when reflecting a 5-year phase- proposed criterion. If additional
implementation procedures may result in due to NPDES permit cycle, total monitoring data were available, or if the
in different waters identified as costs range from $31.0 to 45.7 million California Regional Water Quality
impaired for selenium and the State per year. Deferring some cost to later Control Boards increase monitoring of
may choose a different approach to years reduces the total amount and is ambient conditions in future assessment
achieving water quality criteria, the EPA likely given the 5-year NPDES permit periods, additional impairments may be
assumed, for the purpose of its cost renewal cycle and staggered TMDL identified under the baseline and/or
analysis, that nonpoint dischargers of development. proposed criteria. Conversely, there may
agricultural drainage return flows to The estimated costs to nonpoint be fewer waters identified as impaired
impaired waters in regions with a high sources that may result from state for selenium after California has fully
percentage of irrigated cropland would implementation of the proposed implemented baseline activities to
need to implement BMPs to reduce criterion range from $9.9 to $11.0 address sources of existing impairments
irrigation drainage. To estimate the million per year, using a 13-year TMDL for selenium or other contaminants (e.g.,
potential incremental impact of the rule phase-in period. The EPA annualized planned baseline BMPs for stormwater
on nonpoint sources, the EPA identified BMP capital costs over the expected discharges from urban or industrial
the incrementally impaired waters with useful life of the BMPs using a 3% sources for metals TMDLs).
high proportions of cropland. The EPA’s discount rate and added annual Table 4 shows aggregate costs for
estimate for incremental BMPs costs operation and maintenance costs to point source controls, nonpoint source
included annualized costs for derive annual cost estimates. See the BMPs, and administrative costs for the
implementing drip irrigation to replace Economic Analysis for more details. 3% discount rate, where the total
a less efficient type of irrigation to If there are incrementally impaired annual cost ranges from $41 million to
reduce the return flow from agricultural waters under the proposed criterion, $57 million. The 7% discount rate
areas surrounding the impaired waters. then the California Regional Water estimates of total annual costs range
The EPA also estimated the potential Quality Control Boards may need to from $45 million to $61 million. See the
administrative costs to government develop TMDLs for these waters, economic analysis for full derivation.
TABLE 4—SUMMARY OF TOTAL ANNUAL COST ESTIMATES
[Millions; 2017$]
Cost type Low cost High cost
Point Sources 1 ........................................................................................................................................................ $31.0 $45.7
Nonpoint Sources 1 .................................................................................................................................................. 9.9 11.0
Government Administration 2 ................................................................................................................................... 0.04 0.04
Total .................................................................................................................................................................. 40.9 56.7
1 Annualcosts include capital costs annualized over the 20-year expected life of the equipment at 3% plus annual operating and maintenance
costs. Annual costs also reflect a 5-year implementation period for point sources and a 13-year implementation period for nonpoint source BMPs.
2 Total TMDL development costs are uniformly distributed over 13 years.
VIII. Statutory and Executive Orders review have been documented in the B. Executive Order 13771 (Reducing
A. Executive Order 12866 (Regulatory docket. The EPA evaluated the potential Regulations and Controlling Regulatory
Planning and Review) and Executive costs to NPDES dischargers associated Costs)
Order 13563 (Improving Regulation and with State implementation of the EPA’s
proposed criteria. This analysis, This action is expected to be an
Regulatory Review) Executive Order 13771 regulatory
Economic Analysis for Proposed
amozie on DSK3GDR082PROD with PROPOSALS1
As determined by the Office of action. Details on the estimated costs of
Selenium Water Quality Standards
Management and Budget (OMB), this this proposed rule can be found in the
Applicable to the State of California, is
action is a significant regulatory action EPA’s analysis of the potential costs and
and was submitted to OMB for review. summarized in Section VII of the
preamble and is available in the docket. benefits associated with this action.
Any changes made during OMB’s
19 These unit cost estimates derive from values Daily Load Program (EPA 841–D–01–003), escalated may not reflect increased costs of analysis using
provided in a U.S. EPA draft report from 2001, to $2017. These unit costs per TMDL represent more sophisticated contemporary methods.
entitled The National Costs of the Total Maximum practices from nearly 20 years ago, and therefore
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![64072 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules
C. Paperwork Reduction Act (PRA) these requirements on small entities; it substantially affect the relationship
This action does not impose an that is, these requirements are not self- between the federal government and
information collection burden under the implementing. tribes, or the distribution of power and
PRA. While actions to implement these responsibilities between the federal
E. Unfunded Mandates Reform Act
WQS could entail additional paperwork government and tribes. Thus, Executive
(UMRA)
burden, this action does not directly Order 13175 does not apply to this
This action does not contain any action.
contain any information collection,
unfunded mandates as described in
reporting, or record-keeping Consistent with the EPA Policy on
UMRA, 2 U.S.C. 1531–1538, and does
requirements. Consultation and Coordination with
not significantly or uniquely affect small
D. Regulatory Flexibility Act (RFA) governments. As these water quality Indian Tribes, the EPA consulted with
criteria are not self-implementing, the tribal officials during the development
I certify that this action will not have of this action. The EPA will continue to
a significant economic impact on a action imposes no enforceable duty on
any state, local or tribal governments or communicate with the tribes prior to its
substantial number of small entities final action.
under the RFA. This action will not the private sector.
impose any requirements on small F. Executive Order 13132 (Federalism) H. Executive Order 13045 (Protection of
entities. The EPA-promulgated WQS are Children From Environmental Health
Under the technical requirements of and Safety Risks)
implemented through various water
Executive Order 13132, the EPA has
quality control programs including the
determined that this proposed rule may The EPA interprets Executive Order
NPDES program, which limits
not have federalism implications but 13045 as applying only to those
discharges to navigable waters except in
believes that the consultation regulatory actions that concern
compliance with a NPDES permit. CWA
requirements of the Executive Order environmental health or safety risks that
Section 301(b)(1)(C) 20 and the EPA’s
have been satisfied in any event. On the EPA has reason to believe may
implementing regulations at 40 CFR
122.44(d)(1) and 122.44(d)(1)(A) provide several occasions over the course of disproportionately affect children, per
that all NPDES permits shall include February 2018 through September 2018, the definition of ‘‘covered regulatory
any limits on discharges that are the EPA discussed with the California action’’ in section 2–202 of the
necessary to meet applicable WQS. State Water Quality Control Board and Executive Order. This action is not
Thus, under the CWA, the EPA’s several Regional Water Quality Control subject to Executive Order 13045
promulgation of WQS establishes Boards the Agency’s development of the because it does not concern an
standards that the state implements federal rulemaking and clarified early in environmental health risk or safety risk.
through the NPDES permit process. the process that if and when the State
I. Executive Order 13211 (Actions That
While the state has discretion in decided to develop and establish its
Significantly Affect Energy Supply,
developing discharge limits, as needed own selenium standards, the EPA
Distribution, or Use)
to meet the WQS, those limits, per would instead assist the State in its
regulations at 40 CFR 122.44(d)(1)(i), process. During these discussions, the This action is not a ‘‘significant
‘‘must control all pollutants or pollutant EPA explained the scientific basis for energy action’’ because it is not likely to
parameters (either conventional, the fish and bird tissue elements of the have a significant adverse effect on the
nonconventional, or toxic pollutants) selenium criterion and the supply, distribution, or use of energy.
which the Director determines are or methodologies for translating the tissue
elements to water column values; the J. National Technology Transfer and
may be discharged at a level that will Advancement Act of 1995
cause, have the reasonable potential to external peer review process and the
cause, or contribute to an excursion comments the Agency received on the This proposed rulemaking does not
above any [s]tate water quality standard, derivation of the criterion; the Agency’s involve technical standards.
including [s]tate narrative criteria for consideration of those comments and
water quality.’’ As a result of this action, responses; possible alternatives for a K. Executive Order 12898 (Federal
the State of California will need to criteria or criterion matrix; and the Actions To Address Environmental
ensure that permits it issues include any overall timing of the federal rulemaking Justice in Minority Populations and
limitations on discharges necessary to effort. The EPA coordinated with the Low-Income Populations)
comply with the WQS established in the State and considered the State’s initial
The human health or environmental
final rule. In doing so, the State will feedback in making the Agency’s
risk addressed by this action will not
have a number of choices associated decision to propose and solicit comment
have potential disproportionately high
with permit writing. While California’s on the criterion matrix and the various
and adverse human health or
implementation of the rule may options described in Section III.
environmental effects on minority, low-
ultimately result in new or revised Proposed Criterion of this proposed
income or indigenous populations. The
permit conditions for some dischargers, rulemaking.
The EPA specifically solicits criteria in this proposed rule would
including small entities, the EPA’s support the health and abundance of
action, by itself, does not impose any of comments on this proposed action from
state and local officials. aquatic life and aquatic-dependent
20 301(b) Timetable for Achievement of
wildlife in California and would,
Objectives. In order to carry out the objective of this
G. Executive Order 13175 (Consultation therefore, benefit all communities that
amozie on DSK3GDR082PROD with PROPOSALS1
chapter there shall be achieved—(1)(C): Not later and Coordination With Indian Tribal rely on these ecosystems.
than July 1, 1977, any more stringent limitation, Governments)
including those necessary to meet water quality List of Subjects in 40 CFR Part 131
standards, treatment standards, or schedules of This action does not have tribal
compliance, established pursuant to any State law implications as specified in Executive Environmental protection,
or regulations (under authority preserved by section Order 13175. This proposed rule does Incorporation by reference, Indians—
1370 of this title) or any other Federal law or
regulation, or required to implement any applicable
not impose substantial direct lands, Intergovernmental relations,
water quality standard established pursuant to this compliance costs on federally Reporting and recordkeeping
chapter. recognized tribal governments, nor does requirements, Water pollution control.
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![Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules 64073
Dated: November 29, 2018. PART 131—WATER QUALITY ■ 2. Amend § 131.38 by revising the
Andrew R. Wheeler, STANDARDS table in paragraph (b)(1) and paragraphs
Acting Administrator. (c)(3)(ii) and (iii) to read as follows:
■ 1. The authority citation for part 131 § 131.38 Establishment of numeric criteria
For the reasons set forth in the continues to read as follows: for priority toxic pollutants for the State of
preamble, the EPA proposes to amend California.
40 CFR part 131 as follows: Authority: 33 U.S.C. 1251 et seq.
* * * * *
(b)(1) * * *
A B C D
Freshwater Saltwater Human health
(10¥6 risk for carcinogens)
for consumption of:
Criterion Criterion Criterion Criterion
maximum continuous maximum continuous
Number compound CAS No. Water and Organisms
conc.d conc.d conc.d conc.d organisms only
(μg/L) (μg/L) (μg/L) (μg/L) (μg/L) (μg/L)
B1 B2 C1 C2 D1 D2
1. Antimony .................. 7440360 ........................ ........................ ........................ ........................ a s 14 a t 4300
2. Arsenic b ................... 7440382 i m w 340 i m w 150 i m 69 i m 36 ........................ ........................
3. Beryllium .................. 7440417 ........................ ........................ ........................ ........................ (n) (n )
4. Cadmium b ............... 7440439 e i m w x 4.3 e i m w 2.2 i m 42 i m 9.3 (n) (n )
5a. Chromium (III) ........ 16065831 e i m o 550 e i m o 180 ........................ ........................ (n) (n )
5b. Chromium (VI) b ..... 18540299 i m w 16 i m w 11 i m 1100 i m 50 (n) (n )
6. Copper b ................... 7440508 e i m w x 13 e i m w 9.0 i m 4.8 i m 3.1 1300 ........................
7. Lead b ....................... 7439921 e i m z 65 e i m z 2.5 i m 210 i m 8.1 (n) (n )
8. Mercury b .................. 7439976 [Reserved] [Reserved] [Reserved] [Reserved] a 0.050 a 0.051
9. Nickel b ..................... 7440020 e i m w 470 e i m w 52 i m 74 i m 8.2 a 610 a 4600
10. Selenium b .............. 7782492 (p) (q aa) i m 290 i m 71 (n) (n )
11. Silver b .................... 7440224 e i m 3.4 ........................ i m 1.9 ........................ ........................ ........................
12. Thallium ................. 7440280 ........................ ........................ ........................ ........................ a s 1.7 a t 6.3
13. Zinc b ...................... 7440666 e i m w x 120 e i m w 120 i m 90 i m 81 ........................ ........................
14. Cyanide b ................ 57125 o 22 o 5.2 r1 r1 a 700 a j 220,000
15. Asbestos ................ 1332214 ........................ ........................ ........................ ........................ k s 7,000,000 ........................
fibers/L
16. 2,3,7,8-TCDD
(Dioxin) ..................... 1746016 ........................ ........................ ........................ ........................ c 0.000000013 c 0.000000014
17. Acrolein .................. 107028 ........................ ........................ ........................ ........................ s 320 t 780
18. Acrylonitrile ............ 107131 ........................ ........................ ........................ ........................ a c s 0.059 a c t 0.66
19. Benzene ................. 71432 ........................ ........................ ........................ ........................ a c 1.2 a c 71
20. Bromoform ............. 75252 ........................ ........................ ........................ ........................ a c 4.3 a c 360
21. Carbon Tetra-
chloride ..................... 56235 ........................ ........................ ........................ ........................ a c s 0.25 a c t 4.4
22. Chlorobenzene ....... 108907 ........................ ........................ ........................ ........................ a s 680 a j t 21,000
23.
Chlorodibromometha-
ne .............................. 124481 ........................ ........................ ........................ ........................ a c y 0.41 a c 34
24. Chloroethane ......... 75003 ........................ ........................ ........................ ........................ ........................ ........................
25. 2-Chloroethylvinyl
Ether ......................... 110758 ........................ ........................ ........................ ........................ ........................ ........................
26. Chloroform ............. 67663 ........................ ........................ ........................ ........................ [Reserved] [Reserved]
27.
Dichlorobromometha-
ne .............................. 75274 ........................ ........................ ........................ ........................ a c y 0.56 a c 46
28. 1,1-Dichloroethane 75343 ........................ ........................ ........................ ........................ ........................ ........................
29. 1,2-Dichloroethane 107062 ........................ ........................ ........................ ........................ a c s 0.38 a c t 99
30. 1,1-
Dichloroethylene ....... 75354 ........................ ........................ ........................ ........................ a c s 0.057 a c t 3.2
31. 1,2-Dichloropropane 78875 ........................ ........................ ........................ ........................ a 0.52 a 39
32. 1,3-
Dichloropropylene ..... 542756 ........................ ........................ ........................ ........................ a s 10 a t 1,700
33. Ethylbenzene ......... 100414 ........................ ........................ ........................ ........................ a s 3,100 a t 29,000
34. Methyl Bromide ...... 74839 ........................ ........................ ........................ ........................ a 48 a 4,000
35. Methyl Chloride ...... 74873 ........................ ........................ ........................ ........................ (n) ( n)
36. Methylene Chloride 75092 ........................ ........................ ........................ ........................ a c 4.7 a c 1,600
37. 1,1,2,2-
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Tetrachloroethane .... 79345 ........................ ........................ ........................ ........................ a c s 0.17 a c t 11
38. Tetrachloroethylene 127184 ........................ ........................ ........................ ........................ c s 0.8 c t 8.85
39. Toluene .................. 108883 ........................ ........................ ........................ ........................ a 6,800 a 200,000
40. 1,2-Trans-
Dichloroethylene ....... 156605 ........................ ........................ ........................ ........................ a 700 a 140,000
41. 1,1,1-Trichloro-
ethane ....................... 71556 ........................ ........................ ........................ ........................ (n) (n )
42. 1,1,2-Trichloro-
ethane ....................... 79005 ........................ ........................ ........................ ........................ a c s 0.60 a c t 42
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g This criterion is based on 304(a) aquatic life criterion issued in 1980, and was issued in one of the following documents: Aldrin/Dieldrin (EPA
440/5–80–019), Chlordane (EPA 440/5–80–027), DDT (EPA 440/5–80–038), Endosulfan (EPA 440/5–80–046), Endrin (EPA 440/5–80–047),
Heptachlor (440/5–80–052), Hexachlorocyclohexane (EPA 440/5–80–054), Silver (EPA 440/5–80–071). The Minimum Data Requirements and
derivation procedures were different in the 1980 Guidelines than in the 1985 Guidelines. For example, a ‘‘CMC’’ derived using the 1980 Guide-
lines was derived to be used as an instantaneous maximum. If assessment is to be done using an averaging period, the values given should be
divided by 2 to obtain a value that is more comparable to a CMC derived using the 1985 Guidelines.
h These totals simply sum the criteria in each column. For aquatic life, there are 23 priority toxic pollutants with some type of freshwater or salt-
water, acute or chronic criteria. For human health, there are 92 priority toxic pollutants with either ‘‘water + organism’’ or ‘‘organism only’’ criteria.
Note that these totals count chromium as one pollutant even though the EPA has developed criteria based on two valence states. In the matrix,
the EPA has assigned numbers 5a and 5b to the criteria for chromium to reflect the fact that the list of 126 priority pollutants includes only a sin-
gle listing for chromium.
i Criteria for these metals are expressed as a function of the water-effect ratio, WER, as defined in paragraph (c) of this section. CMC = col-
umn B1 or C1 value × WER; CCC = column B2 or C2 value × WER.
j No criterion for protection of human health from consumption of aquatic organisms (excluding water) was presented in the 1980 criteria docu-
ment or in the 1986 Quality Criteria for Water. Nevertheless, sufficient information was presented in the 1980 document to allow a calculation of
a criterion, even though the results of such a calculation were not shown in the document.
k The CWA 304(a) criterion for asbestos is the MCL.
l [Reserved].
m These freshwater and saltwater criteria for metals are expressed in terms of the dissolved fraction of the metal in the water column. Criterion
values were calculated by using the EPA’s Clean Water Act 304(a) guidance values (described in the total recoverable fraction) and then apply-
ing the conversion factors in § 131.36(b)(1) and (2).
n The EPA is not promulgating human health criteria for these contaminants. However, permit authorities should address these contaminants in
NPDES permit actions using the State’s existing narrative criteria for toxics.
o These criteria were promulgated for specific waters in California in the National Toxics Rule (‘‘NTR’’), at § 131.36. The specific waters to
which the NTR criteria apply include: Waters of the State defined as bays or estuaries and waters of the State defined as inland, i.e., all surface
waters of the State not ocean waters. These waters specifically include the San Francisco Bay upstream to and including Suisun Bay and the
Sacramento-San Joaquin Delta. This section does not apply instead of the NTR for this criterion.
p No acute criterion applies except as follows. A criterion of 20 μg/L was promulgated for specific waters in California in the NTR in the total re-
coverable form and still applies to waters of the San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San Joaquin
Delta; waters of Salt Slough; Mud Slough (north); and the San Joaquin River, Sack Dam to the mouth of Merced River. The State of California
adopted and the EPA approved site-specific acute criteria that still apply to the San Joaquin River, mouth of Merced to Vernalis; Salt Slough;
constructed and reconstructed water supply channels in the Grassland watershed listed in Appendix 40 of the State of California Central Valley
Regional Water Quality Control Board Basin Plan; and all surface waters that are tributaries to the Salton Sea.
q The chronic criterion specified in footnote aa applies except as follows. A chronic criterion of 5 μg/L was promulgated for specific waters in
California in the NTR in the total recoverable form and still applies to waters of the San Francisco Bay upstream to and including Suisun Bay and
the Sacramento-San Joaquin Delta; waters of Salt Slough; Mud Slough (north); and the San Joaquin River, Sack Dam to Vernalis. Footnote aa
does not apply instead of the NTR for these waters. The State of California adopted and the EPA approved a site-specific criterion for the Salt
Slough, constructed and reconstructed water supply channels in the Grassland watershed listed in appendix 40 of the State of California Central
Valley Regional Water Quality Control Board Basin Plan, and all surface waters that are tributaries to the Salton Sea; therefore, footnote aa does
not apply to these waters.
r These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include:
Waters of the State defined as bays or estuaries including the Sacramento-San Joaquin Delta within California Regional Water Board 5, but ex-
cluding the San Francisco Bay. This section does not apply instead of the NTR for these criteria.
s These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include:
Waters of the Sacramento-San Joaquin Delta and waters of the State defined as inland (i.e., all surface waters of the State not bays or estuaries
or ocean) that include a MUN use designation. This section does not apply instead of the NTR for these criteria.
t These criteria were promulgated for specific waters in California in the NTR. The specific waters to which the NTR criteria apply include:
Waters of the State defined as bays and estuaries including San Francisco Bay upstream to and including Suisun Bay and the Sacramento-San
Joaquin Delta; and waters of the State defined as inland (i.e., all surface waters of the State not bays or estuaries or ocean) without a MUN use
designation. This section does not apply instead of the NTR for these criteria.
u PCBs are a class of chemicals which include aroclors 1242, 1254, 1221, 1232, 1248, 1260, and 1016, CAS numbers 53469219, 11097691,
11104282, 11141165, 12672296, 11096825, and 12674112, respectively. The aquatic life criteria apply to the sum of this set of seven aroclors.
v This criterion applies to total PCBs, e.g., the sum of all congener or isomer or homolog or aroclor analyses.
w This criterion has been recalculated pursuant to the 1995 Updates: Water Quality Criteria Documents for the Protection of Aquatic Life in Am-
bient Water, Office of Water, EPA–820–B–96–001, September 1996. See also Great Lakes Water Quality Initiative Criteria Documents for the
Protection of Aquatic Life in Ambient Water, Office of Water, EPA–80–B–95–004, March 1995.
x The State of California has adopted and the EPA has approved site specific criteria for the Sacramento River (and tributaries) above Ham-
ilton City; therefore, these criteria do not apply to these waters.
y The State of California adopted and the EPA approved a site-specific criterion for New Alamo Creek from Old Alamo Creek to Ulatis Creek
and for Ulatis Creek from Alamo Creek to Cache Slough; therefore, this criterion does not apply to these waters.
z The State of California adopted and the EPA approved a site-specific criterion for the Los Angeles River and its tributaries; therefore, this cri-
terion does not apply to these waters.
aa Proposed California Freshwater Selenium Ambient Chronic Water Quality Criterion for Protection of Aquatic Life and Aquatic-Dependent
Wildlife
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![64078 Federal Register / Vol. 83, No. 239 / Thursday, December 13, 2018 / Proposed Rules
thousand 95% or more of the time, the course of five years (2019–2024). These activities. In case of problems accessing
applicable criteria are the saltwater activities include glaucous-winged gull these documents, please call the contact
criteria in Column C, except for and climate monitoring activities in listed above (see FOR FURTHER
selenium in waters of the San Francisco Glacier Bay National Park (GLBA NP), INFORMATION CONTACT).
Bay upstream to and including Suisun Alaska and marine bird and mammal
National Environmental Policy Act
Bay and the Sacramento-San Joaquin survey activities conducted by the
(NEPA)
Delta where the applicable criteria are Southwest Alaska Inventory and
the freshwater criteria in Column B of Monitoring Network (SWAN) in To comply with the National
the National Toxic Rule (‘‘NTR’’) at national parks and adjacent lands. As Environmental Policy Act of 1969
§ 131.36. required by the Marine Mammal (NEPA; 42 U.S.C. 4321 et seq.) and
(iii) For waters in which the salinity Protection Act (MMPA), NMFS is NOAA Administrative Order (NAO)
is between 1 and 10 parts per thousand proposing regulations to govern that 216–6A, NMFS must review our
as defined in paragraphs (c)(3)(i) and (ii) take and requests comments on the proposed action (i.e., the issuance of an
of this section, the applicable criteria proposed regulations. incidental take authorization) with
are the more stringent of the freshwater DATES: Comments and information must respect to potential impacts on the
or saltwater criteria, except for selenium be received no later than January 14, human environment.
in waters of the San Francisco Bay 2019. This action is consistent with
upstream to and including Suisun Bay categories of activities identified in CE
ADDRESSES: You may submit comments B4 of the Companion Manual for NOAA
and the Sacramento-San Joaquin Delta on this document, identified by NOAA–
where the applicable criteria are the Administrative Order 216–6A, which do
NMFS–2018–0059, by any of the not individually or cumulatively have
freshwater criteria in Column B of the following methods:
NTR. However, the Regional the potential for significant impacts on
• Electronic submission: Submit all the quality of the human environment
Administrator may approve the use of electronic public comments via the
the alternative freshwater or saltwater and for which we have not identified
Federal e-Rulemaking Portal. Go to any extraordinary circumstances that
criteria if scientifically defensible www.regulations.gov/#!docketDetail;D=
information and data demonstrate that would preclude this categorical
NOAA-NMFS-2018-0059, click the exclusion. Accordingly, NMFS has
on a site-specific basis the biology of the ‘‘Comment Now!’’ icon, complete the
water body is dominated by freshwater preliminarily determined that the
required fields, and enter or attach your issuance of the proposed rule and
aquatic life and that freshwater criteria comments.
are more appropriate; or conversely, the subsequent Letters of Authorization
• Mail: Submit written comments to qualifies to be categorically excluded
biology of the water body is dominated Jolie Harrison, Chief, Permits and
by saltwater aquatic life and that from further NEPA review. We will
Conservation Division, Office of review all comments submitted in
saltwater criteria are more appropriate. Protected Resources, National Marine
Before approving any change, the EPA response to this notice prior to
Fisheries Service, 1315 East West concluding our NEPA process or making
will publish for public comment a Highway, Silver Spring, MD 20910.
document proposing the change. a final decision on the request.
Instructions: Comments sent by any
* * * * * other method, to any other address or Purpose and Need for Regulatory
[FR Doc. 2018–26781 Filed 12–12–18; 8:45 am] individual, or received after the end of Action
BILLING CODE 6560–50–P the comment period, may not be This proposed rule, to be issued
considered by NMFS. All comments under the authority of the Marine
received are a part of the public record Mammal Protection Act (MMPA) (16
DEPARTMENT OF COMMERCE and will generally be posted for public U.S.C. 1361 et seq.), would establish a
viewing on www.regulations.gov framework for authorizing the take of
National Oceanic and Atmospheric without change. All personal identifying marine mammals incidental to NPS’s
Administration information (e.g., name, address), gull and climate monitoring activities
confidential business information, or within GLBA NP and marine bird and
50 CFR Part 217 otherwise sensitive information mammal surveys in the SWAN region.
[Docket No. 180411364–8364–01] submitted voluntarily by the sender will Researchers conducting these surveys
be publicly accessible. NMFS will may cause behavioral disturbance (Level
RIN 0648–BH90 accept anonymous comments (enter ‘‘N/ B harassment) of harbor seals and
A’’ in the required fields if you wish to Steller sea lions.
Taking and Importing Marine remain anonymous). Attachments to
Mammals; Taking Marine Mammals We received an application from NPS
electronic comments will be accepted in requesting five-year regulations and
Incidental to National Park Service’s Microsoft Word, Excel, or Adobe PDF
Research and Monitoring Activities in authorization to take harbor seals and
file formats only. Steller sea lions. Take would occur by
Southern Alaska National Parks
FOR FURTHER INFORMATION CONTACT: Gray Level B harassment incidental to
AGENCY: National Marine Fisheries Redding, Office of Protected Resources, research and monitoring activities due
Service (NMFS), National Oceanic and NMFS, (301) 427–8401. to behavioral disturbance of pinnipeds.
Atmospheric Administration (NOAA), SUPPLEMENTARY INFORMATION: The regulations would be valid from
Commerce. 2019 to 2024. Please see ‘‘Background’’
amozie on DSK3GDR082PROD with PROPOSALS1
Availability
ACTION: Proposed rule; request for below for definitions of harassment.
comments. A copy of NPS’s application and any
supporting documents, as well as a list Legal Authority for the Proposed Action
SUMMARY: NMFS has received a request of the references cited in this document, Section 101(a)(5)(A) of the MMPA (16
from the National Park Service (NPS) for may be obtained online at: https:// U.S.C. 1371(a)(5)(A)) directs the
authorization to take marine mammals www.fisheries.noaa.gov/national/ Secretary of Commerce to allow, upon
incidental to research and monitoring marine-mammal-protection/incidental- request, the incidental, but not
activities in southern Alaska over the take-authorizations-research-and-other- intentional taking of small numbers of
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Document Created: 2018-12-13 01:15:08
Document Modified: 2018-12-13 01:15:08
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Comments date: Comments must be received on or before February 11, 2019. | |
| Contact | Julianne McLaughlin, Office of Water, Standards and Health Protection Division (4305T), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; | |
| FR Citation | 83 FR 64059 | |
| RIN Number | 2040-AF79 | |
| CFR Associated | Environmental Protection; Incorporation by Reference; Indians-Lands; Intergovernmental Relations; Reporting and Recordkeeping Requirements and Water Pollution Control |
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