Water Quality Standards; Establishment of a Numeric Criterion for Selenium for the State of California, 101914-101938 [2024-29483]
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FOR FURTHER INFORMATION CONTACT:
ENVIRONMENTAL PROTECTION
AGENCY
Environmental Protection
Agency (EPA).
ACTION: Final rule.
Maria Letourneau, Office of Water,
Standards and Health Protection
Division (4305T), Environmental
Protection Agency, 1200 Pennsylvania
Avenue NW, Washington, DC 20460;
telephone number: (202) 566–2700;
email address: letourneau.maria@
epa.gov; or Diane Fleck, Water Division
(WTR–2–1), Environmental Protection
Agency Region 9, 75 Hawthorne Street,
San Francisco, CA 94105; telephone
number: (213) 244–1836; email address:
fleck.diane@epa.gov.
SUPPLEMENTARY INFORMATION: This final
rule is organized as follows:
The Environmental Protection
Agency (the EPA or the Agency) is
amending a Federal Clean Water Act
(CWA) rule, the California Toxics Rule,
to promulgate a final, revised statewide
chronic freshwater selenium water
quality criterion applicable to certain
California waters to protect aquatic life
and aquatic-dependent wildlife from
exposure to toxic levels of selenium.
This revised criterion builds upon the
science underlying the EPA’s current
national CWA section 304(a)
recommended aquatic life freshwater
criterion for selenium.
DATES: This rule is effective on January
16, 2025. The incorporation by reference
of certain publications listed in the rule
is approved by the Director of the
Federal Register as of January 16, 2025.
ADDRESSES: The EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OW–2018–0056. All
documents in the docket are listed on
the https://www.regulations.gov
website. Although listed in the index,
some information is not publicly
available, e.g., confidential business
information (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
electronically through
www.regulations.gov.
I. General Information
A. Applicability
B. The EPA’s Development of the Final
Rule
II. Background
A. Statutory and Regulatory Authority
B. Applicable Selenium Criteria in
California
C. California Toxics Rule and Endangered
Species Act Consultation
D. Litigation
E. Selenium and Sources of Selenium
III. Final Freshwater Chronic Selenium
Criterion
A. The EPA’s Approach
B. Administrator’s Determination of
Necessity
C. Final Chronic Selenium Criterion for
California’s Fresh Waters
D. Implementation of the Final Chronic
Selenium Criterion in California
E. Incorporation by Reference
IV. Endangered Species Act
V. Applicability of the EPA-Promulgated
Water Quality Standards
VI. Conditions When Federal Standards
Would Be Withdrawn
VII. Alternative Regulatory Approaches
VIII. Economic Analysis
IX. Statutory and Executive Orders
A. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 14094 (Modernizing Regulatory
Review)
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act
(UMRA)
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
40 CFR Part 131
[EPA–HQ–OW–2018–0056; FRL 6322–03–
OW]
RIN 2040–AF79
Water Quality Standards;
Establishment of a Numeric Criterion
for Selenium for the State of California
AGENCY:
SUMMARY:
Category
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A. Applicability
Federal water quality standards
(WQS) promulgated by the EPA in this
rule will be the applicable WQS for
certain waters in California for Clean
Water Act (CWA) purposes after the
effective date of this rule. Specifically,
the chronic freshwater selenium
criterion in the final rule will apply to
California waters in a manner consistent
with the California Toxics Rule (CTR)
and the EPA’s proposed rulemaking for
this action (83 FR 64059, December 13,
2018). 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% or
more of the time; and (3) the more
stringent of the two apply at salinities
between 1 and 10 parts per thousand.
As a result, many estuarine waters will
be covered by this rule.
WQS serve as the basis for CWA
programs, such as National Pollutant
Discharge Elimination System (NPDES)
permitting and identifying impaired
waters under CWA section 303(d).
Categories and entities that could
potentially be affected by this rule
include the following:
Industries discharging pollutants to certain waters of California.
Publicly owned treatment works or other facilities discharging pollutants to certain waters of California.
Entities responsible for managing stormwater discharges to certain waters of California.
Agricultural entities discharging to certain waters of California.
This table is not exhaustive but,
rather, it provides a guide that identifies
entities that could be affected by this
action. If you have questions regarding
the effect of this action on a particular
entity, please consult the person listed
19:50 Dec 16, 2024
I. General Information
Examples of potentially affected entities
Industry ...........................................
Municipalities ...................................
Stormwater Management Districts ..
Agriculture .......................................
VerDate Sep<11>2014
G. Executive Order 13045 (Protection of
Children From Environmental Health
and Safety Risks)
H. Executive Order 13211 (Actions That
Significantly Affect Energy Supply,
Distribution, or Use)
I. National Technology Transfer and
Advancement Act of 1995
J. Executive Order 12898 (Federal Actions
To Address Environmental Justice in
Minority Populations and Low-Income
Populations) and Executive Order 14096
(Revitalizing Our Nation’s Commitment
to Environmental Justice for All)
K. Congressional Review Act (CRA)
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in the FOR FURTHER INFORMATION
CONTACT section.
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B. The EPA’s Development of the Final
Rule
On November 29, 2018, the
Administrator of the EPA signed a
proposed rulemaking to establish a
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selenium water quality criterion
applicable to California that protects
aquatic life and aquatic-dependent
wildlife in certain waters of California.
The proposal was published in the
Federal Register at 83 FR 64059 on
December 13, 2018. For the proposed
rulemaking, the EPA provided a 60-day
public comment period with a 45-day
extension and held two public hearings
on March 19 and March 20, 2019, to
accept verbal public comments. By the
end of the public comment period on
March 28, 2019, the EPA received a total
of 32 comments on a range of issues
submitted by organizations and
individuals to the docket for the rule
and during the two public hearings.
For the final rule, the EPA carefully
considered the public comments and
feedback the Agency received on the
proposed rulemaking. In relevant
sections of the preamble below, the EPA
provides brief summaries of certain
comments. Some comments addressed
issues beyond the scope of this rule. For
all the comments the EPA received and
the EPA’s responses, see the EPA’s
Response to Comments document in the
public docket for this rule: Docket ID
No. EPA–HQ–OW–2018–0056.
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II. Background
A. Statutory and Regulatory Authority
The CWA establishes the basic
structure for regulating pollutant
discharges from point sources into the
waters of the United States. In the CWA,
Congress established the national
objective to restore and maintain the
chemical, physical, and biological
integrity of the Nation’s waters. The
CWA also sets forth the interim goal of
achieving water quality, wherever
attainable, that provides for both: (1) the
protection and propagation of fish,
shellfish, and wildlife; and (2)
recreation in and on the water (sections
101(a) and 101(a)(2)). 33 U.S.C. 1251(a),
(a)(2). To help achieve these goals, the
CWA created two complementary
structures for regulating discharges in
CWA section 402 NPDES permits: first,
technology-based effluent limitations
(TBELs) that set a floor for the
performance for categories of regulated
dischargers; and second, water qualitybased effluent limitations (WQBELs)
that are established where TBELs are
insufficient to meet applicable WQS or
site-specific water quality goals. See 33
U.S.C. 1342(a). TBELs in NPDES
permits are derived from secondary
treatment standards (for publicly owned
treatment works), effluent limitations
guidelines (CWA sections 301 and 304,
33 U.S.C. 1311 and 1314), new source
performance standards (CWA section
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17:03 Dec 16, 2024
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306, 33 U.S.C. 1316) promulgated by the
EPA, and/or established on a case-bycase basis under section 402(a)(1) of the
Act (to the extent that EPA-promulgated
effluent limitations are inapplicable). If
TBELs are not sufficient to achieve the
WQS in the receiving water, the CWA
(section 301(b)(1)(c), 33 U.S.C.
1311(b)(1)(c)) and the EPA’s NPDES
regulation, 40 CFR 122.44(d), require
that the permit writer develop more
stringent WQBELs.
WQS are the foundation of the water
quality-based pollution control
programs required by the CWA. Such
standards serve as a description of the
desired water quality condition for
particular waterbodies. In addition,
WQS serve as the basis for several CWA
programs, including:
• WQBELs in NPDES permits under
section 402, 33 U.S.C. 1342;
• Waterbody assessments and
establishment of total maximum daily
loads (TMDLs) under section 303(d), 33
U.S.C. 1313(d);
• Certifications of Federal licenses
and permits under section 401, 33
U.S.C., 1341.
CWA section 303(c) directs states to
adopt WQS for their waters subject to
the CWA. WQS consist of designated
uses of the waters, water quality criteria
to protect those uses, and an
antidegradation policy to maintain
water quality (CWA section 303(c)(2)(A)
and (d)(4)(B)). The EPA’s regulation at
40 CFR 131.11(a)(1) provides 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.’’
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)
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)
and 40 CFR 131.20 and 131.21). Under
CWA section 303(c)(4)(B), the
Administrator is authorized to
determine that a new or revised
standard is necessary to meet CWA
requirements.
Under CWA section 304(a), the EPA is
required to periodically publish
national water quality 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
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101915
304(a) criteria modified to reflect sitespecific conditions, or other
scientifically defensible methods (40
CFR 131.11(b)(1)). CWA section
303(c)(2)(B) requires states to adopt
numeric criteria for all toxic pollutants
listed pursuant to CWA section
307(a)(1) for which the EPA has
published CWA section 304(a) criteria,
where the presence or discharge of those
pollutants could reasonably be expected
to interfere with maintaining designated
uses.
B. Applicable Selenium Criteria in
California
The EPA has promulgated selenium
water quality criteria for various
waterbodies in California. First, in 1992,
the EPA promulgated selenium criteria
for certain California waters as part of
the Water Quality Standards;
Establishment of Numeric Criteria for
Priority Toxic Pollutants; States’
Compliance at 57 FR 60848, December
22, 1992, (hereafter referred to as the
National Toxics Rule or NTR),1 and then
again in 2000, as part of the Water
Quality Standards; Establishment of
Numeric Criteria for Priority Toxic
Pollutants for the State of California at
65 FR 31681, May 18, 2000, (hereafter
referred to as the California Toxics Rule
or CTR).2 In each case, the EPA
promulgated the EPA’s recommended
aquatic life criteria values at the time. In
addition to the NTR and CTR selenium
criteria, California has also adopted sitespecific acute and chronic selenium
criteria (California uses the term
‘‘objectives’’ instead of criteria). The
criteria that the EPA previously
promulgated for California in the NTR,3
together with the criteria promulgated
in the CTR and California’s site-specific
objectives, established WQS for priority
toxic pollutants for inland surface
waters and enclosed bays and estuaries
in California.
For a full summary of the applicable
selenium criteria covered by the NTR,
the CTR, and California site-specific
selenium objectives, please refer to the
preamble of the EPA’s proposed
rulemaking for this action, sections II.B
and II.C (83 FR 64059, December 13,
2018). For a discussion on the scope of
1 The NTR is codified at 40 CFR 131.36. https://
www.ecfr.gov/current/title-40/chapter-I/subchapterD/part-131#131.36.
2 The CTR is codified at 40 CFR 131.38. https://
www.ecfr.gov/current/title-40/chapter-I/subchapterD/part-131/subpart-D/section-131.38.
3 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.
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California waters covered by this rule,
please see section V. of this preamble.
C. California Toxics Rule and
Endangered Species Act Consultation
As required by section 7 of the
Endangered Species Act (ESA) (16
U.S.C. 1531 et seq.), the EPA 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
proposed and final CTR. The EPA
initiated consultation with the Services
in 1994. In March 2000, the Services
issued a final Joint Biological Opinion.
The final Joint Biological Opinion 4
recorded commitments by the EPA to:
(1) withhold promulgation of (i.e.,
reserve) the EPA’s proposed acute 5
freshwater aquatic life criterion for
selenium in the final CTR; (2) revise the
national CWA section 304(a)
recommended acute and chronic aquatic
life criteria for selenium; and (3) later
update the acute and chronic aquatic
life criteria for California consistent
with the revised national CWA section
304(a) recommendations. As a result, in
the May 2000 CTR, the EPA finalized
the chronic freshwater selenium
criterion 6 and the acute and chronic
saltwater selenium criteria but did not
finalize the acute freshwater selenium
criterion.
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D. Litigation
Section 303(c)(4)(B) of the CWA gives
the EPA Administrator authority to
promulgate water quality standards for
a state where necessary to meet the
requirements of CWA section 303. The
EPA made an Administrator’s
determination under section
303(c)(4)(B) of the CWA, included in the
1997 proposed 7 and 2000 final CTR,
that numeric criteria are necessary in
California to meet the requirements of
section 303(c)(2)(B) to protect the State’s
4 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 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).
5 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 mg/L and 12.83 mg/
L, respectively. This criterion was in the total
recoverable form. CMC is the continuous maximum
concentration.
6 The final chronic criterion was based on the
EPA’s 1987 national CWA section 304(a)
recommended criterion.
7 Proposed California Toxics Rule, 62 FR 42160
(August 5, 1997).
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designated uses.8 In 2013, two
organizations filed a 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 CTR, that
selenium criteria were necessary to
implement section 303(c)(2)(B) of the
CWA (62 FR 42160, August 5, 1997) and
the work to update the reserved
freshwater acute selenium criterion
from the 2000 CTR had not yet been
completed. In 2014, the EPA entered
into a consent decree to resolve these
claims (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 aquaticdependent wildlife by November 30,
2018. On November 29, 2018, the EPA
satisfied this commitment when the
Administrator of the EPA signed the
proposed rulemaking to establish a
selenium water quality criterion
applicable to California that protects
aquatic life and aquatic-dependent
wildlife in certain waters of California.
The consent decree also required that
the EPA request to 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
proposed the criteria. The EPA satisfied
this commitment by initiating ESA
consultation with the Services on the
proposed selenium criterion on August
12, 2019.
Further, under the consent decree, the
EPA is required to finalize its proposed
selenium criteria within six months of
the later of the following: (1) the date of
the EPA’s conclusion (if any) that it will
not seek ESA section 7(a)(2)
consultation because some or all of the
proposed selenium criteria have ‘‘no
effect’’ on any listed ESA species or
designated critical habitat; (2) the date
of written concurrence from the
Services with any EPA conclusion that
some or all of the proposed selenium
criteria are ‘‘not likely to adversely
affect’’ listed ESA species or designated
critical habitat; or (3) the date of the
Services’ Biological Opinion(s)
concluding any formal consultation on
the proposed selenium criteria.
8 See the CTR preamble at section E.1., ‘‘EPA is
using section 303(c)(4)(B) as the legal basis for
today’s final rule.’’ 65 FR 31687 (May 18, 2000).
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E. Selenium and Sources of Selenium
Selenium is a naturally occurring, but
relatively rare, element present in
sedimentary rocks and soils. It is also
present in the atmosphere as methyl
derivatives of selenium. There are
around 40 known selenium-containing
minerals, some of which can have as
much as 30% selenium, but all are rare
and generally occur together with
sulfides of metals such as copper, zinc,
and lead.9 The distribution of organicenriched sedimentary rocks, black
shales, petroleum source rocks, ore
deposits, phosphorites, and coals, in
which selenium typically co-occurs, is
well characterized in the United
States.10 Two major anthropogenic (i.e.,
human-caused) activities can cause
selenium to become mobilized and
introduced into aquatic systems. The
first is extracting metals, minerals, and
fossil fuels; the second is irrigation of
selenium-rich soils. Once inorganic
selenium is converted into a
bioavailable form (i.e., a form that can
be absorbed into the body following
skin contact, ingestion, or inhalation), it
enters the food chain and can
bioaccumulate (i.e., can be taken up and
retained by an aquatic organism from
any surrounding media, e.g., water,
food, sediment).
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) (see
2021 Revision to: Final Aquatic Life
Ambient Water Quality Criteria for
Selenium—Freshwater 2016, US EPA,
Office of Water, EPA 822–R–21–006,
August 2021). The deformities
associated with exposures 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 11 indicate that
selenium toxicity to aquatic life and
9 Emsley, John. October 2011. Nature’s Building
Blocks: An A–Z Guide to the Elements, 2nd Edition.
10 Presser TS, Piper DZ, Bird KJ, Skorupa JP,
Hamilton SJ, Detwiler Sj, Huebner MA. 2004. The
Phosphoria Formation: a model for forecasting
global selenium sources to the environment. In: JR
Hein, editor. Life cycle of the phosphoria formation:
From deposition to post-mining environment. New
York (NY): Elsevier. P 299–319. See Figures 1 and
2.
11 Scientific studies used in the development of
this rulemaking can be found in this rule’s docket,
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aquatic-dependent wildlife is driven by
diet (i.e., the consumption of seleniumcontaminated 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 when algae and other
particulate material take up 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. Those factors include a
species’ sensitivity to selenium, its
population status, and the duration,
timing, and life stage of exposure. In
addition, the hydrologic conditions and
water chemistry of a waterbody affect
bioaccumulation; in general, slowmoving, calm waters or lentic waters
enhance the production of bioavailable
forms of selenium (selenite), while
faster-moving waters or lotic waters
limit selenium uptake by aquatic life
and aquatic-dependent wildlife given
the rapid movement and predominant
form of selenium (selenate). The EPA
considered these and other factors in
determining the selenium criterion for
California.
III. Final Freshwater Chronic Selenium
Criterion
A. The EPA’s Approach
In 2016, the EPA published a revised
national CWA section 304(a)
recommended chronic freshwater
aquatic life criterion for selenium to
better account for bioaccumulation
through the food chain in different
ecosystems, and published an erratum
in 2021, 2021 Revision to: Final Aquatic
Life Ambient Water Quality Criterion for
Selenium—Freshwater 2016, US EPA,
Office of Water, EPA 822–R–21–006,
August 2021.12 For purposes of clarity
in this preamble, all subsequent
references to the EPA’s current national
CWA section 304(a) recommended
chronic freshwater criterion for
selenium refers to its 2021 published
version. The recommended chronic
freshwater criterion is comprised of four
criterion elements, two of which are fish
tissue concentrations and two of which
are water column concentrations. The
recommended elements are: (1) a fish
egg-ovary element of 15.1 milligram per
kilogram (mg/kg) dry weight; (2) a fish
whole-body element of 8.5 mg/kg dry
weight or a muscle element of 11.3 mg/
kg dry weight; (3) a water column
element of 3.1 mg/L in lotic aquatic
systems and 1.5 mg/L in lentic aquatic
systems; and (4) a water column
intermittent exposure 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).
As stated previously, on November
29, 2018, the EPA Administrator signed
the proposed rulemaking to establish a
selenium water quality criterion that
protects aquatic life and aquaticdependent wildlife in certain fresh
waters of California. The EPA proposed
its recommended 2016 CWA section
304(a) selenium criterion for freshwater
with two modifications to the criterion.
First, the EPA proposed adding a bird
tissue criterion element derived to
protect aquatic-dependent wildlife to
the EPA’s national CWA section 304(a)
selenium criterion. Second, the EPA
proposed replacing the EPA’s national
CWA section 304(a) selenium monthly
average exposure water column (lentic
or lotic) criterion element (referred to as
the default water column criterion
element) with a performance-based
approach (PBA) for translating a tissue
criterion element into a corresponding
water column criterion element on a
site-specific basis and took comment on
whether to keep the default water
column criterion element, in addition to
the PBA, in the final rule.
In this rule, the EPA considered the
methodology and information used to
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derive the current national CWA section
304(a) recommended selenium criterion,
additional information specific to
aquatic-dependent wildlife in
California, and the public comments
and feedback the EPA received on the
proposed rulemaking in order to ensure
broad protection for both aquatic and
aquatic-dependent species. The final
freshwater chronic selenium criterion
for certain waters in California adds a
bird tissue criterion element to the
national CWA section 304(a) selenium
criterion, consistent with the proposed
rulemaking, in addition to the PBA. The
EPA also included the default water
column criterion element from the
EPA’s national CWA section 304(a)
selenium criterion, in addition to the
PBA in the final rule. The PBA will
allow the State to develop a site-specific
water column element to be used
instead of the default water column
criterion element. For a further
discussion of the EPA’s final chronic
freshwater selenium criterion and what
the EPA considered in finalizing this
rule, see section III.C of this preamble
and also refer to the EPA’s Response to
Comments document in the public
docket for this rule.
As mentioned previously, the chronic
freshwater selenium criterion in this
final rule will apply to California waters
in a manner consistent with the CTR
and the EPA’s proposed rulemaking for
this action (83 FR 64059, December 13,
2018).
The promulgated criterion establishes
levels of selenium that protect
California’s aquatic life and aquaticdependent wildlife designated uses
(California uses the term ‘‘beneficial
uses’’ instead of designated uses) for
certain waters of California consistent
with California’s implementation of the
CTR. California’s applicable designated
(beneficial) uses for the protection of
aquatic life and aquatic-dependent
wildlife are listed in table 1 of this
preamble.
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TABLE 1—APPLICABLE DESIGNATED (BENEFICIAL) USES FOR CALIFORNIA 13
Use
Abbreviation
Definition
Warm Freshwater Habitat .........
WARM ............
Cold Freshwater Habitat ...........
COLD .............
Migration of Aquatic Organisms
MIGR ..............
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.
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.
Uses of water that support habitats necessary for migration or other temporary activities by
aquatic organisms, such as anadromous fish.
as well as dockets EPA–HQ–OW–2004–0019 and
EPA–HQ–OW–2015–0392.
12 In 2021, the EPA identified that the following
text was missing from the second sentence in
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footnote 4 in the selenium criterion table: ‘‘When
selenium inputs are increasing’’ and issued an
erratum. The EPA corrected footnote 4 to state: ‘‘4.
Water column values are based on dissolved total
selenium in water and are derived from fish tissue
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values via bioaccumulation modeling. When
selenium inputs are increasing, water column
values are the applicable criterion element in the
absence of steady-state condition fish tissue data.’’
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TABLE 1—APPLICABLE DESIGNATED (BENEFICIAL) USES FOR CALIFORNIA 13—Continued
Use
Abbreviation
Definition
Spawning, Reproduction, and/or
Early Development.
Estuarine Habitat ......................
SPWN .............
EST ................
Wildlife Habitat ..........................
WILD ..............
Rare, Threatened, or Endangered Species.
RARE .............
Uses of water that support high quality aquatic habitats suitable for reproduction and early
development of fish.
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).
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.
Uses of water that 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 previously noted, in the 1997
proposed and 2000 final CTR, the EPA
Administrator determined under CWA
section 303(c)(4)(B) that selenium
criteria were necessary in California. In
the 1997 proposed CTR, the EPA
proposed both acute and chronic
freshwater selenium criteria. In the 2000
final CTR, the EPA promulgated a
chronic freshwater selenium criterion;
withheld promulgation of (i.e., reserved)
an acute freshwater selenium criterion;
and committed to revising the national
CWA section 304(a) recommended acute
and chronic aquatic life criteria for
selenium and later updating the acute
and chronic aquatic life criteria for
California consistent with the revised
national CWA section 304(a)
recommendations. The Services
incorporated the EPA’s commitments as
Terms and Conditions in the final Joint
Biological Opinion for the CTR.
In November 2018, the EPA proposed
a revised chronic selenium criterion
based on the EPA’s current national
CWA section 304(a) recommended
criterion for selenium, which only
includes a chronic criterion. The EPA’s
current national CWA section 304(a)
recommendation does not include a
separate acute criterion because
selenium is bioaccumulative and
toxicity primarily occurs through
dietary exposure. Although selenium
may cause acute toxicity at high
concentrations, the most harmful effect
on aquatic organisms is due to its
bioaccumulative properties; these
chronic effects occur at lower
concentrations of selenium in aquatic
organisms than acute effects. In
addition, as discussed further in section
III.C of this preamble, application of the
13 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).
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intermittent exposure criterion element
(that the EPA is promulgating as part of
the chronic criterion) to single day, high
exposure events will provide protection
from the most important selenium
toxicity effect, reproductive toxicity, by
protecting against selenium
bioaccumulation in the aquatic
ecosystem resulting from short-term,
high exposure events. Since the time of
the EPA’s proposed rulemaking in
November 2018, the EPA is not aware of
any significant scientific updates to alter
the scientific basis underlying the EPA’s
current national CWA section 304(a)
recommended freshwater chronic
selenium criterion. As a result, the EPA
is not including a separate freshwater
acute selenium criterion.
Accordingly, promulgation of the
freshwater chronic selenium criterion in
this rule completes the EPA’s action
pursuant to the Administrator’s
Determination as it pertains to selenium
criteria, as provided in the 1997 and
2000 preambles to the CTR.
In addition, this promulgation
satisfies the Services’ Term and
Condition included in the final Joint
Biological Opinion for the CTR to
update the selenium criterion for
California consistent with the current
national CWA section 304(a)
recommendations (see section II.C. of
this preamble). For more information
about the ESA consultation completed
for this final rule, see section IV. of this
preamble.
C. Final Chronic Selenium Criterion for
California’s Fresh Waters
In this final rule, the EPA is
promulgating its current national CWA
section 304(a) recommended chronic
selenium criterion for certain fresh
waters in California (including the
default water column criterion element),
with the addition of a bird tissue
criterion element and a performancebased approach (PBA) 14 for translating
14 A performance-based approach relies on the
state or authorized Tribe adopting a process (i.e., a
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a tissue criterion element into a
corresponding water column criterion
element on a site-specific basis. In its
proposed rulemaking, the EPA solicited
comment on whether to replace the
default water column criterion element
from the Agency’s 2016 CWA section
304(a) selenium criterion with the PBA,
replace the PBA with the default water
column criterion element from the
Agency’s 2016 CWA section 304(a)
selenium criterion, or include both. As
discussed further in this section and in
the EPA’s Response to Comments
document in the public docket for this
rule, the EPA is including both the
default water column criterion element
and the PBA in its promulgation of the
chronic criterion; a site-specific water
column value developed using the PBA
may be used in place of the default
(lentic or lotic) water column criterion
element.
The final freshwater chronic selenium
criterion for California is depicted in
table 2 of this preamble.
In the proposed rulemaking, the EPA
solicited comment on two potential
criteria structures: (1) one criterion that
protects both the applicable aquatic life
and aquatic-dependent wildlife
designated uses; and (2) two separate
criteria with one intended to protect the
applicable aquatic life designated uses
and one intended to protect the
applicable aquatic-dependent wildlife
designated uses. Most commenters
requested that the EPA keep the
proposed option of one criterion.
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 performancebased approach) for a state or authorized Tribe, the
EPA is held to the same policies, procedures,
analyses, and public participation requirements for
that water quality standard as the state or
authorized Tribe. See 40 CFR 131.22(c). The
concept of a performance-based approach was first
described in the Federal Register document EPA
Review and Approval of State and Tribal Water
Quality Standards—Final Rule (65 FR 24641–
24653; April 27, 2000).
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After considering comments, the EPA
is finalizing the rule as proposed,
meaning that one criterion (with
multiple criterion elements as shown in
table 2 of this preamble) will be used to
protect both aquatic life and aquaticdependent wildlife designated uses in
the waters covered by this rule. The one
criterion consists of the following
criterion elements: fish egg-ovary tissue,
fish muscle or whole-body tissue, bird
egg tissue, default water column (lentic
and lotic), intermittent exposure water
column, and a PBA for translating the
tissue criterion elements into
corresponding water column criterion
elements on a site-specific basis.
The tissue criterion elements consist
of (1) a fish egg-ovary criterion element
of 15.1 mg/kg dry weight, (2) 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, and
(3) a bird egg criterion element of 11.2
mg/kg dry weight. The fish egg-ovary
tissue (from which all other fish tissue
elements were derived) and bird egg
tissue criterion elements were
developed to protect aquatic and
aquatic-dependent wildlife populations
from impacts caused by selenium: they
reflect biological uptake of selenium
through diet, which is the predominant
pathway for selenium toxicity, and are
most predictive of the observed
biological endpoint of concern,
reproductive toxicity.
The water column criterion elements
consist of (1) the default water column
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criterion element for lentic waters, 1.5
mg/L, or for lotic waters, 3.1 mg/L and (2)
the intermittent exposure water column
criterion element. In addition to the
default water column criterion element,
EPA is also promulgating the PBA
Method for Translating Selenium Tissue
Criterion Elements into Site-specific
Water Column Criterion Elements for
California, Version 2, December 2024,
which is available in the docket for this
rulemaking and incorporated by
reference as part of this rule.
The chronic selenium criterion
applies to the entire aquatic community,
including aquatic-dependent wildlife.
Based on the analysis in the
accompanying Technical Support
Document (TSD) to this rule (FINAL
Aquatic Life and Aquatic-Dependent
Wildlife Selenium Water Quality
Criterion for Freshwaters of California
(December 2024)) and the EPA’s
previous work (2021 Revision to: Final
Aquatic Life Ambient Water Quality
Criterion for Selenium—Freshwater
2016, US EPA, Office of Water, EPA
822–R–21–006, August 2021), as well as
currently available data, fish and birds
are considered the most sensitive
aquatic and aquatic-dependent taxa to
selenium effects, respectively.
The available data indicate that
applying the criterion in table 2 of this
preamble would protect aquatic life and
aquatic-dependent wildlife from the
toxic effects of selenium, recognizing
that the bird tissue criterion element is
independently applicable from and
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101919
equivalent to the fish tissue criterion
elements; the fish egg-ovary criterion
element supersedes all other fish tissue
elements; the fish tissue criterion
elements (egg-ovary, whole-body, and/
or muscle) supersede water column
criterion elements for aquatic life when
fish tissue is measured; and the bird
tissue criterion element supersedes
water column criterion elements for
aquatic-dependent wildlife when bird
egg tissue is measured. This hierarchy
reflects the fact that fish and bird tissue
concentrations provide the most robust
and direct information on potential
selenium effects in fish and birds. See
section III.D Implementation of the
Final Chronic Selenium Criterion in
California of this preamble for the
discussion regarding implementation of
the final chronic selenium criterion and
one exception to the hierarchy
described above when selenium inputs
are increasing.
The EPA is promulgating the
following chronic criterion in new
paragraph (b)(1)(i) of 40 CFR 131.38.
The EPA is also making revisions to
footnote q in the criteria table in
paragraph (b)(1) and clarifying edits
regarding the applicability of this
criterion in paragraphs (c)(3)(ii) and
(iii). The EPA is not amending or
revising the contents of the table in
(b)(1) and language in 40 CFR 131.38,
except as specified in the preceding two
sentences.
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Table 2: California Freshwater Selenium Ambient Chronic Water Quality Criterion
for Protection of A uatic Life and A uatic-De endent Wildlife
8.5 mg/kg dw
whole-body
1.5 µg/L in lentic
aquatic systems
3 .1 µg/L in lotic
or
aquatic systems
15.1 mg/kg dw
=
WQC30-day -
Cbkgrnd (1
- f int)
lint
Instantaneous
measurement7
Instantaneous
measurement7
Instantaneous
measurement7
30 days
Number of days/month with an
elevated concentration
exceeded
Notto be
exceeded
Not to be
exceeded
Not more than
once in three
years on average
Not more than once in three years
on average
1. Fish tissue criterion elements are expressed as steady-state.
2. Fish egg-ovary supersedes any whole-body, muscle, or water column criterion elements for aquatic life when fish egg-ovary are
measured, except as noted in footnote 4. Bird egg supersedes water column criterion elements for aquatic-dependent wildlife when
bird eggs are measured, except as noted in footnote 4. The bird tissue criterion element is independently applicable from and
equivalent to the fish tissue criterion elements.
3. Fish whole-body or muscle tissue supersedes the water column criterion elements when both fish tissue and water concentrations
are measured, except as noted in footnote 4.
4. Water column criterion elements are based on dissolved total selenium in water and are derived from fish tissue and bird tissue
criterion elements via bioaccumulation modeling. When selenium inputs are increasing, water column criterion elements are the
applicable criterion elements in the absence of steady-state condition fish tissue or bird tissue data.
5. The water column criterion element, which applies independently to the respective aquatic life and aquatic-dependent wildlife uses,
is applicable for all CWA purposes and consists of a water column value of 1.5 µg/L in lentic aquatic systems and 3.1 µg/L in lotic
aquatic systems unless or until a site-specific water column criterion element is derived for a particular waterbody following the
methodology described in Method for Translating Selenium Tissue Criterion Elements into Site-specific Water Column Criterion
Elements for California, Version 2, December 2024. This publication is incorporated by reference into this section with the
approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available at
EPA, OW Docket, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC, 20004; phone: (202) 566-2426; website:
https://www.epa.gov/wqs-tech/water-quality-standards-establishment-numeric-criterion-selenium-fresh-waters-california. It is also
available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this
material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email fr.inspection@nara.gov.
6. Where WQC30-day is the applicable water column monthly criterion element, Cbkgmd is the average background selenium
concentration, and fint is the fraction of any 30-day period during which elevated selenium concentrations occur, with fint assigned a
value 2':0.033 (corresponding to 1 day).
7. Fish tissue and bird tissue data provide instantaneous point measurements that reflect integrative accumulation of selenium over
time and space in bird or fish population(s) at a given site.
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11.3 mg/kg dw
muscle
(skinless,
boneless filet)
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Performance-Based Approach (PBA) for
Translating Tissue Criterion Elements to
Site-Specific Water Column Criterion
Elements
As part of the criterion depicted in
table 2 of this preamble, the EPA is
incorporating by reference the PBA,
Method for Translating Selenium Tissue
Criterion Elements into Site-specific
Water Column Criterion Elements for
California, Version 2, December 2024.
The PBA is a methodology that the State
may use to translate the bird and fish
tissue criterion elements into water
column criterion elements on a sitespecific basis.
If the State chooses to use the PBA,
the State will coordinate with the EPA
at the beginning of the process. The PBA
is itself incorporated by reference into
this rule and thus is part of the
applicable WQS that the EPA is
promulgating. As such, California is not
required to adopt and submit the
outcomes that result from using the PBA
(i.e., water column criterion elements
for site-specific waterbodies) to the EPA
for CWA section 303(c) review. In this
rule, the EPA is promulgating the PBA
as a scientifically defensible
methodology that is sufficiently detailed
and has suitable safeguards to ensure
predictable, repeatable outcomes that
will protect California’s applicable
beneficial uses. If California chooses to
use the PBA for a particular site, each
resulting site-specific water column
criterion element would be applicable
for CWA purposes, without the need for
separate EPA approval under CWA
section 303(c).
The PBA provides two methodologies
for deriving a site-specific water column
criterion element: (1) the mechanistic
modeling approach; and (2) the
empirical bioaccumulation factor (BAF)
approach:
(1) 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. This
approach enables formulation of sitespecific models of trophic transfer of
selenium through aquatic food webs and
translation of the tissue elements into an
equivalent site-specific water column
element. It is also the approach the EPA
used to develop the national CWA
section 304(a) recommended selenium
water column criterion elements.
(2) The empirical BAF approach
establishes a site-specific relationship
between water column selenium
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concentrations and fish or bird tissue
selenium concentrations by measuring
both directly and using the relationship
between the concentrations to
determine a site-specific water column
criterion element.
As stated in footnote 5 of criterion,
the default water column criterion
element, consisting of a water column
value of 1.5 mg/L dissolved total
selenium in lentic aquatic systems and
3.1 mg/L dissolved total selenium in
lotic aquatic systems, applies for all
CWA purposes according to the
hierarchy of the criterion, unless a sitespecific water column criterion element
is derived following the PBA.
If California decides to use the PBA to
translate the applicable fish tissue or
bird tissue criterion elements into sitespecific water column criterion
elements, those translated values would
be applicable for, and protective of, the
use for which the translation was
completed. For example, if California
used the PBA to translate the fish tissue
criterion element into a water column
criterion element, that water column
criterion element would protect aquatic
life; if California used the PBA to
translate the bird tissue criterion
element into a water column criterion
element, that water column criterion
element would protect aquaticdependent wildlife.
The EPA looks forward to
coordinating and working with the State
to ensure consistency with the PBA
methodology before implementation in
other CWA programs. Importantly, for
public transparency, the EPA
recommends California maintain a list
of the resulting site-specific water
column criterion elements. The EPA
also recommends that California make
its analyses and the underlying data
used for each site-specific water column
derivation available on a publicly
accessible State website.
As with other criteria, the State
maintains discretion to adopt new or
revised site-specific criteria and submit
them to the EPA in accordance with
CWA section 303(c) and EPA’s
implementing regulations at 40 CFR part
131. This could arise in the context of
an entirely different criterion, an
alternative water column criterion
element, or an alternative tissue to water
column derivation methodology. Please
refer to section VI, Conditions When
Federal Standards Would Be Withdrawn
of this preamble for a discussion
regarding the applicability of Californiaadopted, EPA-approved WQS in light of
this Federal promulgation.
If the State chooses not to follow the
PBA as prescribed, the State would need
to adopt and submit site-specific water
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101921
column criterion elements to the EPA
for CWA section 303(c) review and
approval in accordance with the
procedures at 40 CFR part 131 in order
to rely on them as applicable WQS for
other CWA programs such as the TMDL
and NPDES permitting programs. This is
because the new value would not derive
from or comply with applicable WQS
(see 40 CFR 122.44(d)).15
In the proposed rulemaking, the EPA
took comment on whether the national
CWA section 304(a) recommended
water column criterion element (lentic
and lotic) should be included as a
default, in addition to or in place of the
PBA, in the final selenium criterion.
Most commenters supported including
the PBA in the final rule, and some
requested that the default water column
criterion element not be included in the
final rule. However, several comments
highlighted implementation concerns,
such as gaps in protection before the
PBA can be used to develop site-specific
water column criterion elements,
anticipated burdens on industry to rely
on the PBA to derive site-specific water
column criterion elements, and new
discharger considerations that could be
mitigated by including the default water
column criterion element, in addition to
the PBA.
In consideration of these public
comments and to maintain consistency
with the EPA’s latest scientific
recommendation to ensure protection of
aquatic life and aquatic-dependent
wildlife from exposure to toxic levels of
selenium, as articulated in the EPA’s
current national CWA section 304(a)
recommended freshwater aquatic life
criterion for selenium and the TSD
accompanying this final rule, the EPA
decided to include the default water
column criterion element as part of the
California selenium criterion for the
final rule, in addition to the PBA. This
will ensure protection from excessive
selenium in certain waters in California
when tissue data are unavailable.
Specifically, water column data and
criterion elements can be applied for
CWA implementation purposes when
tissue data are unavailable. When all of
the criterion elements are applied
together, the tissue and water column
criterion elements protect aquatic life
and aquatic-dependent wildlife from the
chronic effects of exposure to selenium
in waterbodies. This will also help
ensure that California is able to
implement the Federally promulgated
selenium criterion as soon as it is
effective under the CWA.
The EPA also specifically solicited
comment on whether it would be
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appropriate to include a method for a
larger scale (e.g., ecoregional or statewide) water column translation from
fish or bird egg tissue in the PBA, and
if so, what methods are available and
appropriate for this large-scale
translation. Most commenters agreed
that a larger-scale translation method
was not appropriate, finding the PBA
was more appropriate and scientifically
defensible on a waterbody site-specific
scale, given the highly localized
conditions that affect selenium
bioaccumulation. After taking into
consideration all comments, EPA
decided to keep the allowable
application of the PBA limited to an
individual waterbody or waterbody
segment. Developing a water column
translation for a larger geographic area
involves additional considerations that
are not included in the PBA. These
additional considerations are likely
unique to the geographic area and
would be better addressed through an
individual site-specific criteria process
by the State. California retains the
ability to develop a site-specific
criterion for a larger site, such as a
watershed or ecoregion. Any such stateadopted, site-specific criterion must be
submitted to the EPA for review and
approval pursuant to CWA section
303(c) and the EPA’s implementing
regulations at 40 CFR part 131 to be
effective for CWA purposes.
The EPA intends for the PBA to be
severable from the remainder of the
final selenium criterion in this rule. As
explained above, the EPA has chosen to
promulgate the PBA as part of the
criterion, providing one means for the
State to translate the bird and fish tissue
criterion elements into water column
criterion elements on a site-specific
basis. The EPA included the PBA in this
final rule to provide an efficient means
to account for site-specific information
to inform the applicable water column
criterion element. The removal of the
PBA would not change how the overall
rule functions. The final selenium
criterion protects aquatic life and
aquatic-dependent wildlife through the
applicable tissue and water column
criterion elements for all the specified
waters in California. In contrast, as
discussed above, California’s use of the
PBA in the final rule is optional and not
mandatory. As such, the tissue and
water column criterion elements apply
independently of the PBA and function
separately to meet the requirements of
CWA section 303(c). In the absence of
the PBA, the other criterion elements of
the final selenium criterion will still
protect the designated uses for aquatic
life and aquatic-dependent wildlife in
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accordance with CWA section 303(c)
and the EPA’s implementing
regulations. In other words, the final
selenium criterion, with the criterion
elements absent the PBA, still functions
as the applicable criterion to protect the
designated uses. Further, California
could pursue other options in lieu of
using the PBA to adopt site-specific
selenium criteria. For example, as with
other criteria, the State maintains
discretion to adopt new or revised sitespecific criteria and submit them to the
EPA in accordance with CWA section
303(c) and the EPA’s implementing
regulations at 40 CFR part 131.
Accordingly, the EPA intends this
portion of the rule to be severable from
the remainder of the rule.
Intermittent Exposure Criterion Element
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 aquaticdependent 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 lower
concentrations than acute effects, the
chronic criterion is 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 elevated selenium load
into the system). Therefore, the EPA is
also promulgating the intermittent
exposure criterion element within the
chronic criterion to prevent long-term
detrimental effects from these high
concentration, short-term exposures.
The EPA’s intermittent exposure
criterion element is derived
mathematically from either the default
water column criterion element or the
performance-based, site-specific
monthly water column criterion
element, using the equation shown in
Table 2 of this preamble. The equation
expresses the intermittent exposure
water column criterion element in terms
of the 30-day default water column
criterion element, 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 element calculation
is consistent with the EPA’s current
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national CWA section 304(a)
recommended chronic freshwater
aquatic life criterion for selenium. It is
meant to be used in situations where a
noncontinuous discharge containing
selenium is present in the waterbody of
interest.
D. Implementation of the Final Chronic
Selenium Criterion in California
Identification of Impaired Waters and
TMDL Development
WQS provide the basis for identifying
impaired waters (waters not attaining
the applicable WQS) and developing
TMDLs pursuant to CWA section
303(d). With the promulgation of this
multi-element criterion, all criterion
elements will be available for
assessment purposes. If multiple types
of data are collected at a site, they will
be used for implementation purposes
according to the hierarchical structure
of the selenium criterion. For purposes
of assessing attainment of the WQS
based on the criterion and as mentioned
in section III.C of this preamble, the bird
tissue criterion element is
independently applicable from the fish
tissue criterion elements. Specifically, if
the bird tissue criterion element is
exceeded, the criterion is not being
attained for the applicable aquaticdependent wildlife designated uses, and
if the fish tissue criterion element is
exceeded (using the hierarchy for fish
tissue), the criterion is not being
attained for the applicable aquatic life
designated uses. For aquatic-dependent
wildlife, the bird egg tissue element
supersedes the water column elements
if both are measured. For aquatic life,
the fish egg-ovary tissue criterion
element supersedes the muscle or
whole-body criterion elements and all
fish tissue criterion elements supersede
water column criterion elements.
However, there is one exception to this
hierarchy. When selenium is increasing
due to new inputs, footnote 4 of the
criterion specifies that the water column
criterion elements must be used when
steady-state fish or bird tissue data are
not available for each respective use, as
discussed further below. Also, the
default water column criterion element
applies for CWA purposes for each
respective designated use unless sitespecific water column criterion
elements are derived following the
methodology described in the PBA, or
site-specific water column criterion
elements that do not follow the
methodology prescribed by the PBA are
adopted by California and approved by
the EPA pursuant to CWA section 303(c)
and the EPA’s implementing
regulations.
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Selenium concentrations in fish and
bird tissue are primarily a result of
selenium bioaccumulation via dietary
exposure. In both the EPA’s current
national CWA section 304(a)
recommended aquatic life criterion for
selenium and this California selenium
rulemaking, steady-state refers to
conditions where sufficient time has
passed after the introduction of a new
or increased input of selenium into a
waterbody or watershed of a waterbody
such that fish tissue concentrations of
selenium are no longer increasing in the
long-term average or multi-year average.
For a tissue measurement to be
meaningful, the water from which the
sample is taken should not be
experiencing or have recently
experienced new inputs of selenium.
When there are new selenium inputs to
a waterbody, fish tissue data and bird
tissue data may not fully represent the
potential effects on the aquatic
ecosystem, making the use of the water
column criterion elements more
appropriate to protect the entire aquatic
ecosystem. New inputs are defined as
new anthropogenic activities resulting
in the release of selenium into a lentic
or lotic aquatic system.16 These ‘‘new
inputs’’ are both new and increased
inputs of selenium and are referring to
the release of a substantial amount of
additional selenium from either
anthropogenic point or nonpoint
sources into a waterbody or watershed.
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) or de minimis inputs to a
watershed or waterbody.17
The water column criterion elements
take precedence over the fish tissue
criterion elements and the bird egg
tissue criterion element until tissue data
have returned to a steady-state
condition after a new input of selenium.
In the interim, in systems with new
inputs, the EPA recommends California
sample tissue and water and use sitespecific data to gain a better
understanding of the selenium
bioaccumulation dynamics in a
receiving water and to determine if and
16 USEPA. 2021. 2021 Revision to: Aquatic Life
Ambient Water Quality Criterion for Selenium–
Freshwater 2016. EPA 822–R–21–006. U.S.
Environmental Protection Agency, Office of Water,
Washington, DC. https://www.epa.gov/system/files/
documents/2021-08/selenium-freshwater2016-2021revision.pdf.
17 USEPA. 2024. Technical Support for Adopting
and Implementing the EPA’s 2016 Selenium
Criterion in Water Quality Standards. EPA–820–R–
24–001. U.S. Environmental Protection Agency,
Office of Water, Washington, DC. https://
www.epa.gov/system/files/documents/2024-03/
selenium-adopting-tsd.pdf.
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when steady-state conditions have been
reached.
California has flexibility to determine
how to evaluate individual and
composite samples for each taxon.
Tissue data provide instantaneous point
measurements that reflect integrative
accumulation of selenium over time and
space in fish or birds at a given site.
This final selenium criterion provides
California with flexibility in how the
State can interpret a discrete bird egg or
fish tissue sample to represent a given
species’ population at a site. Generally,
fish and bird egg tissue samples
collected to calculate average tissue
concentrations (often in composites) for
a species at a site are collected during
one sampling event, or over a short
interval due to logistical constraints and
the cost for obtaining samples. The State
should clearly describe its decisionmaking process in its assessment
methodology.
NPDES Permitting
Under the CWA, WQS are used to
derive WQBELs in NPDES permits for
point source discharges, thereby
limiting the amount of pollutants that
may be discharged into a waterbody to
attain and maintain its designated uses.
The EPA is promulgating the default
water column criterion element and the
option for California to use the PBA to
translate tissue criterion elements into
site-specific water column criterion
elements, which can be used to facilitate
implementation, e.g., NPDES
permitting. However, these water
column criterion elements would not
prevent California from also using the
tissue criterion elements for monitoring
and regulating pollutant discharges
where appropriate.
As with assessments, all criterion
elements are available for NPDES
permitting. When multiple data types
are available for making permitting
decisions, the hierarchy of the criterion
will determine which data type will
take precedence. In addition, as
described above, when selenium is
increasing due to new inputs, footnote
4 of the criterion specifies that the water
column criterion elements must be used
when steady-state fish or bird tissue
data are not available.
When implementing the selenium
criterion under the NPDES permits
program, California may need to
establish additional implementation
procedures due to the unique
components of the selenium criterion.
Where California uses a water column
criterion element only (as opposed to
using both the water column and fish
tissue or bird tissue criterion elements)
for conducting reasonable potential
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101923
determinations and establishing
WQBELs per 40 CFR 122.44(d), it may
be appropriate for the State to evaluate
existing implementation procedures for
other water column aquatic life criteria.
However, if California also decides to
use the selenium fish tissue criterion
elements and bird tissue criterion
elements for NPDES permitting
purposes, additional State WQS
implementation procedures 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 regulatory text incorporates one
EPA document by reference,
specifically, the EPA’s Method for
Translating Selenium Tissue Criterion
Elements into Site-specific Water
Column Criterion Elements for
California, Version 2, December 2024,
discussed in section III.C of this
preamble. The EPA has made, and will
continue to make, this document
available electronically at its website
(https://www.epa.gov/wqs-tech/waterquality-standards-establishmentnumeric-criterion-selenium-freshwaters-california) and through
www.regulations.gov at the docket
associated with this rulemaking.
IV. Endangered Species Act
Section 7(a)(2) of the ESA requires
that each Federal agency ensure that any
action authorized, funded, or carried out
by such agency is not likely to
jeopardize the continued existence of
any endangered or threatened species or
result in the destruction or adverse
modification of critical habitat. For this
rule, the EPA transmitted a Biological
Evaluation to NMFS and FWS on
November 23, 2022.
On June 21, 2024, the EPA received a
final Biological Opinion from FWS that
determined that the EPA’s action is
likely to adversely affect but will not
jeopardize the continued existence of
bonytail, razorback sucker, Santa Ana
sucker, tidewater goby, unarmored
threespine stickleback, arroyo toad,
California red-legged frog, foothill
yellow-legged frog, light-footed
Ridgway’s rail, Yuma Ridgway’s rail,
and California least tern. FWS also
concurred with the EPA that the action
may affect but is not likely to adversely
affect the other Federally listed species
and designated critical habitats for all
species that were included in the
consultation, including the longfin
smelt for which the FWS provided
supplemental concurrence with the EPA
on October 29, 2024, that the action may
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affect but is not likely to adversely affect
that species.18
On August 28, 2024, the EPA received
a final Biological Opinion from NMFS
that determined that the EPA’s action is
likely to adversely affect but will not
jeopardize the continued existence of
Central California Coast coho salmon,
Southern Oregon/Northern California
Coast coho salmon, Southern California
steelhead, Central Valley steelhead,
Northern California steelhead, Central
California Coast steelhead, SouthCentral California Coast steelhead,
Sacramento River winter-run Chinook
salmon, Central Valley spring-run
Chinook salmon, Central California
Coast Chinook salmon, the Southern
distinct population segment of North
American green sturgeon, nor is the
proposed action likely to result in the
destruction or adverse modification of
critical habitat for these species. NMFS
also concurred with the EPA that the
action may affect but is not likely to
adversely affect the other Federally
listed species and the designated critical
habitat for the other species that were
included in the consultation.
The EPA’s receipt of these final
Biological Opinions and concurrences
from the Services concludes the
consultation for this rule under ESA
section 7(a)(2). Documents associated
with this ESA consultation are available
in the docket associated with this rule
(Docket ID: EPA–HQ–OW–2018–0056).
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V. Applicability of the EPAPromulgated Water Quality Standards
This final rule for a chronic selenium
freshwater criterion applies to certain
waters of California in a manner
consistent with the CTR where the
protection of aquatic life and aquaticdependent wildlife are designated uses,
which includes the waters of the San
Luis National Wildlife Refuge and the
Los Banos State Wildlife Refuge.
The final rule does not apply to
California waters where site-specific
selenium criteria have been adopted,
nor does it apply to California waters
where selenium criteria have been
promulgated in the NTR. In other
words, this final rule does not apply to
waters of the San Francisco Bay
18 FWS proposed to list the San Francisco BayDelta distinct population segment of longfin smelt
as an endangered species on October 7, 2022 (87 FR
60957) and finalized the rule on July 30, 2024 (89
FR 61029) with an effective date of August 29, 2024.
The San Francisco Bay-Delta distinct population
segment of longfin smelt had not been identified as
part of the consultation in the EPA’s biological
evaluation or the FWS’s Biological Opinion that the
EPA received on June 21,2024, before the final rule
was signed. As such, the EPA worked with FWS to
address this species listing prior to signing the final
rule.
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upstream to and including Suisun Bay
and the Sacramento-San Joaquin Delta,
the San Joaquin River from Sack Dam to
Vernalis, Mud Slough (north), Salt
Slough, or constructed and
reconstructed water supply channels in
the Grassland watershed listed in
Appendix 40 of the Central Valley
Regional Water Quality Control Board’s
Basin Plan because these waters have
applicable selenium criteria from the
NTR and/or approved Central Valley
Regional Water Quality Control Board
site-specific objectives.
Lastly, the final rule does not apply to
surface waters that are tributaries to the
Salton Sea because California adopted,
and EPA-approved, site-specific water
quality objectives for these waters.
As noted previously, this action adds
clarifying language to the regulatory
provisions regarding applicability of the
CTR based on the salinity level of the
waterbody in paragraphs (c)(3)(ii) and
(iii) of 40 CFR 131.38. The added
language is not intended to affect the
substance of those applicability
provisions.
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 EPA-approved designated
(beneficial) uses for the waterbodies it
oversees. The criterion will become the
applicable CWA-effective criterion for
CWA implementation purposes by each
of the Regional Boards after the effective
date of this rule (i.e., 30 days after the
date of publication of this rule in the
Federal Register).
VI. Conditions When Federal Standards
Would Be Withdrawn
Under the CWA, Congress gave states
the primary responsibility for
developing and adopting WQS for their
waters (CWA section 303(a) through (c)).
Although the EPA is promulgating a
selenium criterion for the protection of
aquatic life and aquatic-dependent
wildlife for certain waters of California,
California continues to have the option
to adopt and submit to the EPA
selenium criteria for the State’s waters
consistent with CWA section 303(c) and
the EPA’s implementing regulations at
40 CFR part 131.
If California adopts and submits
selenium criteria for the protection of
aquatic and aquatic-dependent wildlife
for California (fresh water and/or salt
water), the EPA will 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
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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 EPA 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 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)).
VII. Alternative Regulatory Approaches
The EPA’s 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 this
selenium criterion. Among other things,
the EPA’s regulation: (1) specifies how
states and authorized Tribes 19 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) specifies the
requirements 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 of this preamble.
Designated Uses
The EPA’s action applies to certain
waters of California where the
protection of aquatic life and aquaticdependent wildlife are designated uses.
The regulation at 40 CFR 131.10
provides information on establishing,
modifying, and removing designated
uses. If California removes designated
uses such that no aquatic life or aquaticdependent wildlife uses apply to any
particular waterbody or waterbody
segment affected by this rule and adopts
the highest attainable use,20 the State
19 For purposes of this rule, an Indian Tribe that
obtains EPA approval to administer a WQS program
under CWA section 303(c) for its reservation is
referred to as an ‘‘authorized Tribe.’’
20 If a state or authorized Tribe adopts a new or
revised WQS based on a use attainability analysis,
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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 were to find removal or
modification of the designated use and
the adoption of the highest attainable
use and criteria to protect that use is
consistent with CWA section 303(c) and
the implementing regulations at 40 CFR
part 131, the EPA would approve the
revised WQS. The EPA would then
undertake a rulemaking to withdraw the
corresponding Federally promulgated
WQS for the relevant water(s).
Site-Specific Criteria
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The regulation at 40 CFR 131.11
specifies requirements for modifying
water quality criteria to reflect sitespecific 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
waterbody-specific basis that meets the
regulatory test of protecting the
designated uses, being scientifically
defensible, and ensuring the protection
and maintenance of downstream WQS.
In this context, as discussed in section
III.C of this preamble, SSC are different
than a site-specific water column
criterion element developed through the
PBA incorporated by reference in this
final rule. 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 waterbody or portion of a
waterbody. Any such state-adopted SSC
will need to be submitted to the EPA for
review and approval pursuant to CWA
section 303(c) and the EPA’s
implementing regulation at 40 CFR part
131.
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 subcategories of such a use are not attainable (see 40
CFR 131.3(m)).
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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). The EPA’s
regulation at 40 CFR 131.3(o) defines 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 131.20(b))
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 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. NPDES permit limits can
be written to comply with the WQS
variance rather than the underlying
WQS for the specified 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 state or authorized
Tribe may adopt a subsequent WQS
variance if adopted consistent with 40
CFR 131.14.
Compliance Schedules
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. 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
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101925
authorizing their use and obtain 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 a state or authorized Tribe’s
permit compliance schedule authorizing
provision as a WQS pursuant to 40 CFR
131.15 ensures that any NPDES permit
that contains a compliance schedule
meets the requirement that the level of
water quality to be achieved by 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 specify
compliance schedules in NPDES
permits. In 2008, California adopted a
statewide compliance schedule
authorizing provision that the EPA
subsequently approved under CWA
section 303(c), the Policy for
Compliance Schedules in National
Pollutant Discharge Elimination System
Permits, State Water Resources Control
Board 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 compliance schedule authorizing
provision will allow California, as the
permitting authority, to specify
compliance schedules in permits, as
appropriate, for the purpose of
achieving compliance with a WQBEL
based on the selenium criterion
promulgated in this final rule, which is
more stringent than the existing criteria
for California, as soon as possible.
VIII. Economic Analysis
To best inform the public of the
potential impacts of this rule, the EPA
evaluated the potential costs associated
with State implementation of the EPA’s
selenium criterion based on available
information. This analysis is
documented in Economic Analysis for
the Final Selenium Water Quality
Criterion for the State of California,
which can be found in the docket for
this rule. For this analysis, the EPA
assumed that California fully
implements its existing selenium
criteria (i.e., ‘‘baseline criteria’’) and
estimated the incremental impacts for
compliance with the selenium criterion
in this rule. To facilitate this analysis,
the EPA interpreted the criterion as the
default water column criterion element
(i.e., a lentic and lotic value) from the
EPA’s current CWA section 304(a)
selenium criterion for fresh water. For
point source costs, the EPA assumed
any NPDES-permitted facility that
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discharges selenium would have
reasonable potential and would be
subject to effluent limits and would
incur compliance costs if it chose to
continue discharging. The EPA also
evaluated nonpoint sources that
contribute selenium loadings to waters
that would be considered impaired for
selenium under the final criterion and
evaluated whether they would incur
incremental costs for additional best
management practices. The total
annualized cost of this final rule was
estimated to range from $28.34 million
to $44.84 million at a 2% discount rate.
See Economic Analysis for the Final
Selenium Water Quality Criterion for the
State of California for a detailed
summary of the information and
assumptions the EPA relied on to
estimate potential costs to implement
the final rule.
IX. Statutory and Executive Orders
A. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 14094 (Modernizing Regulatory
Review)
This action is not a significant
regulatory action as defined in
Executive Order 12866, as amended by
Executive Order 14094, and was
therefore not subject to a requirement
for Executive Order 12866 review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new
information-collection burden under the
PRA. This action does not directly
contain any information collection,
reporting, or record-keeping
requirements. The Office of
Management and Budget (OMB) has
previously approved the information
collection requirements contained in the
existing regulations at 40 CFR part 131
and has assigned OMB control number
2040–0049.
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C. 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) 21 and the EPA’s
21 301(b),
Timetable for achievement of objectives:
In order to carry out the objective of the chapter
there shall be achieved not later than July 1, 1977,
any more stringent limitation, including those
necessary to meet water quality standards,
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implementing regulations at 40 CFR
122.44(d)(1) introductory text and
(d)(1)(i) 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 the
regulation 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 must ensure that NPDES
permits it issues include any limitations
on discharges necessary to comply with
the WQS established in the final rule.
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.
D. Unfunded Mandates Reform Act
(UMRA)
This action does not contain an
unfunded mandate as described in
UMRA, 2 U.S.C. 1531–1538, and does
not significantly or uniquely affect small
governments. The action imposes no
enforceable duty on any state, local, or
Tribal governments or the private sector.
E. Executive Order 13132 (Federalism)
This action does not have federalism
implications. The EPA believes,
however, that this action may be of
significant interest to state governments.
Consistent with the EPA’s policy to
promote communications between the
EPA and state and local governments,
the EPA consulted with California early
in the process of developing this
rulemaking to provide the State with an
opportunity to provide meaningful and
timely input.
On several occasions starting in
February 2018, the EPA discussed the
development of this rule with the
treatment standards, or schedules of compliance,
established pursuant to any State law or regulations
(under authority preserved by section 1370 of the
title) or any other Federal law or regulation, or
required to implement any applicable water quality
standard established pursuant to the chapter.
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California State Water Resources
Control Board and several Regional
Water Quality Control Boards. Early in
this process, the EPA clarified that if
and when the State decides to develop
and establish its own selenium
standards, the EPA would assist the
State in its process. During these
discussions, the EPA also 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 EPA received on
the derivation of the criterion; the EPA’s
consideration of those comments and
responses; possible alternatives for
criteria or a criterion matrix; the
assumptions and data being used in the
economic analysis associated with the
rule; and the overall timing of the
Federal rulemaking effort. The EPA took
these discussions with the State into
account during the drafting of this final
rule.
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This action does not have Tribal
implications as specified in Executive
Order 13175. This 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, during the development
of this action, the EPA offered Tribal
leaders of potentially affected Tribes in
California government-to-government
consultation on the proposed selenium
rulemaking. The Torres Martinez Desert
Cahuilla Indian Tribe responded, with
questions and concerns about selenium
monitoring in the tributaries to the
Salton Sea. The tributaries to the Salton
Sea have State-adopted and EPAapproved site-specific water quality
criteria (objectives) in place that are not
affected by this rule.
G. 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
E:\FR\FM\17DER1.SGM
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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
the definition of ‘‘covered regulatory
action’’ in section 2–202 of the
Executive order. Therefore, this action is
not subject to Executive Order 13045
because it does not concern an
environmental health risk or safety risk.
This rule relates to protection of aquatic
life and aquatic-dependent wildlife.
Since this action does not concern
human health, the EPA’s Policy on
Children’s Health also does not apply.
H. 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.
This action impacts water quality
standards, which do not regulate the
supply, distribution, or use of energy.
ddrumheller on DSK120RN23PROD with RULES1
I. National Technology Transfer and
Advancement Act of 1995
This rule does not involve technical
standards.
J. Executive Order 12898 (Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations) and Executive
Order 14096 (Revitalizing Our Nation’s
Commitment to Environmental Justice
for All)
The EPA believes that the human
health and environmental conditions
that exist prior to this action do not
result in disproportionate and adverse
effects on communities with
environmental justice concerns. In the
EPA’s Economic Analysis for the Final
Selenium Water Quality Criterion for the
State of California (economic analysis
document), which can be found in the
docket for this rule, Exhibit 5–2
illustrates the geographic distribution of
waters where available data indicate
elevated levels of selenium. These
waters are located throughout the State.
An analysis of proximity to minority
and low-income populations might or
might not reveal patterns of association
that differ from waters that are not
impaired. However, making definitive
connections between waters monitored
for water quality and the effects of
selenium from the use of these resources
would likely depend on many other
local factors, such as accessibility to and
availability of alternative water sources.
The EPA believes that this action is
not likely to result in new
disproportionate and adverse effects on
communities with environmental justice
concerns. The freshwater criterion for
selenium in California does not address
human health impacts, and only applies
to aquatic life and aquatic-dependent
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wildlife uses. This rule will support the
health and abundance of aquatic life
and aquatic-dependent wildlife in
California and will, therefore, not only
benefit those species but also benefit all
communities that rely on or use these
ecosystems. The EPA finds that, as
compared to higher-income
populations, low-income populations
tend to rely more on fishing as a food
source,22 and therefore, this rule may
benefit low-income communities. This
and other EPA actions with goals of
protecting fishing resources are a high
priority for the EPA. The potential
benefits associated with this final rule
are also addressed in the economic
analysis document.
To achieve the benefits associated
with a final rule, the EPA recognizes
that some facilities may need to add
pollution control measures and incur
additional compliance costs over time to
meet any WQBELs needed to achieve
the promulgated selenium criterion. The
EPA used the California Communities
Environmental Health Screening Tool:
CalEnviroScreen 4.0 tool developed by
California Office of Environmental
Health Hazard Assessment and
determined that none of the facilities
identified in the EPA’s Economic
Analysis for the Final Selenium Water
Quality Criterion for the State of
California that would incur additional
annual costs, are located in
communities with elevated
environmental justice concerns. This is
one line of evidence that these
communities would not bear a
disproportionate share of the burden
with promulgation of this rule. To
further explore the anticipated impacts,
the EPA analyzed two facilities
identified in the EPA’s economic
analysis that may incur additional
compliance costs over time to meet any
WQBELs needed to achieve the
promulgated selenium criterion. For
illustrative purposes, the EPA first
analyzed the Michelson Water
Reclamation Plant (WRP), which serves
an area located in parts of Orange
County. Using CalEnviroScreen 4.0, the
EPA examined education level, poverty
level, and unemployment level within
the service area. Some areas showed low
environmental justice concerns (high
education, low poverty, and low
unemployment), whereas other areas in
the county had slightly higher
environmental justice concerns
(moderate education levels, poverty,
22 Von Stackelberg, K., et al. (2017). Results of a
national survey of high-frequency fish consumers in
the United States. Environmental Research 158,
126–136. https://bgc.seas.harvard.edu/assets/
vonstackelberg2017.pdf.
PO 00000
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101927
and unemployment). There did not
appear to be a clear pattern of
disproportionate impacts to specific
communities. As presented in the
economic analysis document, the EPA
estimates that pollution control
upgrades to the Michelson WRP could
potentially result in a total cost of
$4,856,000. The population served by
Michelson WRP is 331,500 people,
which would result in a per-person
increased cost of $14.65 per year. The
average household size in Orange
County (the area served by Michaelson
WRP) is 3.01 23 people per household,
resulting in an estimated additional
average household cost of $44.09 per
year, or $3.67 per month. This
potentially modest increase in monthly
sewerage bill of $3.67 per household per
month appears unlikely to
disproportionally impact low-income
populations, populations with low
education levels, and/or communities
with low employment rates.
The second facility that the EPA has
included in this analysis for illustrative
purposes may incur annual costs due to
implementing pollution control
upgrades is the Auburn Wastewater
Treatment Plant (WWTP). The Auburn
WWTP serves 13,800 people in the city
of Auburn in Placer County. Using the
CalEnviroScreen 4.0 tool, the EPA
examined education level, poverty level,
and unemployment level within the
service area. Auburn showed relatively
high education levels, moderate poverty
levels, and moderate unemployment
levels. There did not appear to be a clear
pattern of disproportionate impacts to
specific communities. As presented in
the economic analysis document, the
EPA estimates that pollution control
upgrades to the Auburn WWTP could
potentially result in a total cost of
$491,000. The population served by the
Auburn WWTP is 13,800 people, which
would result in a per-person increased
cost of $35.58 per year. The average
household size in Auburn is 2.15 24
people per household, resulting in an
estimated additional average household
cost of $76.50 per year, or $6.37 per
month. This potentially modest increase
in monthly sewerage bill of $6.37 per
household per month appears unlikely
to disproportionally impact low-income
populations, populations with low
education levels, and/or communities
with low employment rates.
These examples show that while these
communities only have moderate
environmental justice concerns
23 https://www.census.gov/quickfacts/
orangecountycalifornia.
24 https://www.census.gov/quickfacts/
auburncitycalifornia.
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ddrumheller on DSK120RN23PROD with RULES1
(according to CalEnviroScreen), the lowincome portions of these communities
would not incur a significant burden as
a result of this final rule. Overall, the
EPA anticipates that the
abovementioned benefits will ultimately
outweigh these potential pass-through
sewerage costs and that this rule will
help address any environmental justice
concerns by benefitting aquatic species
and the communities that may rely on
or use them.
In addition to Executive Order 12898,
and in accordance with Title VI of the
Civil Rights Act of 1964, each Federal
agency shall ensure that all programs or
activities receiving Federal financial
assistance that affect human health or
the environment do not directly, or
through contractual or other
arrangements, use criteria, methods, or
practices that discriminate on the basis
of race, color, or national origin. With
that directive in mind, in August 2011
the Environmental Justice Interagency
Working Group established a Title VI
Committee to address the intersection of
agencies’ environmental justice efforts
with their Title VI enforcement and
compliance responsibilities. While the
EPA only has an oversight role for CWA
implementation, if California receives
Federal funds for CWA implementation,
the State is legally prohibited from
discriminating on the basis of race,
VerDate Sep<11>2014
17:03 Dec 16, 2024
Jkt 265001
color, or national origin under Title VI
when engaging in CWA implementation
activities. Additionally, and in
compliance with Executive Order
12898, the EPA expects that California
will consider disproportionately high
and adverse human health and
environmental effects on minority and
low-income populations when
implementing this rulemaking under the
CWA.
The information supporting this
Executive Order review is contained in
the EPA’s Economic Analysis for the
Final Selenium Water Quality Criterion
for the State of California, the California
Communities Environmental Health
Screening Tool: CalEnviroScreen 4.0
tool developed by California Office of
Environmental Health Hazard
Assessment, and the 2022 United States
census data for Orange County,
California and Auburn, California.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and
the EPA will submit a rule report to
each House of Congress and to the
Comptroller General of the United
States. This action is not a ‘‘major rule’’
as defined by 5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 131
Environmental protection,
Incorporation by reference, Indians-
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lands, Intergovernmental relations,
Reporting and recordkeeping
requirements, Water pollution control.
Michael S. Regan,
Administrator.
For the reasons set forth in the
preamble, the EPA amends 40 CFR part
131 as follows:
PART 131—WATER QUALITY
STANDARDS
1. The authority citation for part 131
continues to read as follows:
■
Authority: 33 U.S.C. 1251 et seq.
2. Amend § 131.38 by adding a
heading for paragraph (b) and revising
paragraphs (b)(1) and (c)(3)(ii) and (iii)
to read as follows:
■
§ 131.38 Establishment of numeric criteria
for priority toxic pollutants for the State of
California.
*
*
*
*
*
(b) Criteria. (1) Criteria for priority
toxic pollutants in the State of
California as described in table 1 to this
paragraph (b)(1):
Table 1 to Paragraph (b)(1)
BILLING CODE 6560–50–P
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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
A
B
C
D
Freshwater
Saltwater
Human health
(10-6 risk for carcinogens)
for consumption of:
CAS No.
Criterion
continuous
cone. d
Criterion
maximum
cone. d
Criterion
continuous
cone. d
(µg/L)
(µg/L)
(µg/L)
(µg/L)
Bl
B2
Cl
C2
1. Antimony
7440360
2. Arsenic b
7440382
3. BeryIlium
7440417
4. Cadmium b
7440439
4.3
e,i,m,w,x
2.2 e,i,m,w
5a. Chromium (III)
16065831
550 e,i,m,o
180 e,i,m,o
5b. Chromium (VI) b
18540299
16 i,m,w
11 i,m,w
1100 i,m
6. Copper b
7440508
13
e,i,m,w,x
9.0 e,i,m,w
7. Lead b
7439921
65 e,i,m,z
8. Mercury b
7439976
9. Nickel b
Water
and
organisms
(µg/L)
Organisms
only
D1
D2
(µg/L)
14 a,s
4300 a,t
n
n
n
n
n
n
50 i,m
n
n
4.8i,m
3.1 i,m
1300
2.5 e,i,m,z
210 i,m
8.1 i,m
n
n
[Reserved]
[Reserved]
[Reserved]
[Reserved]
0.050 a
0.051 a
7440020
470
e,i,m,w
52 e,i,m,w
74i,m
8.2 i,m
610 a
4600 a
10. Selenium b
7782492
p
q,l
290 i,m
71 i,m
n
n
11. Silver b
7440224
3.4 e,i,m
12. Thallium
7440280
1.7 a,s
6.3 a,t
13. Zinc b
7440666
700 a
220,000 a,j
14. Cyanide b
ddrumheller on DSK120RN23PROD with RULES1
Criterion
maximum
cone. d
57125
340 i,m,w
120
e,i,m,w,x
22
150 i,m,w
69i,m
42i,m
36 i,m
9.3 i,m
1.9 i,m
120 e,i,m,w
90i,m
81 i,m
5.2 0
1r
1r
0
15. Asbestos
1332214
7,000,000
fibers/L
k,s
16. 2,3,7,8-TCDD (Dioxin)
1746016
0.0000000
13 C
0.000000014
C
17. Acrolein
107028
320 s
780 t
18. Acrylonitrile
107131
0.059 a,c,s
0.66 a,c,t
19. Benzene
71432
1.2 a,c
71 a,c
20. Bromoform
75252
4.3 a,c
360 a,c
21. Carbon Tetrachloride
56235
0.25 a,c,s
4.4 a,c,t
108907
680 a,s
21,000 a,j,t
22. Chlorobenzene
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Number Compound
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
23. Chlorodibromomethane
124481
24. Chloroethane
34 a,c
75003
25. 2-Chloroethylvinyl
Ether
ddrumheller on DSK120RN23PROD with RULES1
0.41 a,c,y
110758
26. Chloroform
67663
[Reserved]
[Reserved]
27. Dichlorobromomethane
75274
0.56 a,c,y
46 a,c
28. 1,1-Dichloroethane
75343
29. 1,2-Dichloroethane
107062
0.38 a,c,s
99 a,c,t
30. 1,1-Dichloroethylene
75354
0.057 a,c,s
3.2 a,c,t
31. 1,2-Dichloropropane
78875
0.52 a
39 a
32. 1,3-Dichloropropylene
542756
10 a,s
1,700 a,t
33. Ethylbenzene
100414
3,100 a,s
29,000 a,t
34. Methyl Bromide
74839
48 a
4,000 a
35. Methyl Chloride
74873
n
n
36. Methylene Chloride
75092
4.7 a,c
1,600 a,c
37. 1,1,2,2Tetrachloroethane
79345
0.17 a,c,s
11 a,c,t
38. Tetrachloroethylene
127184
0.8 c,s
8.85 c,t
39. Toluene
108883
6,800 a
200,000 a
40. 1,2-TransDichloroethylene
156605
700 a
140,000 a
41. 1, 1, 1-Trichloroethane
71556
n
n
42. 1, 1,2-Trichloroethane
79005
0.60 a,c,s
42 a,c,t
43. Trichloroethylene
79016
2.7 c,s
81 c,t
44. Vinyl Chloride
75014
2 c,s
525 c,t
45. 2-Chlorophenol
95578
120 a
400 a
46. 2,4-Dichlorophenol
120832
93 a,s
790 a,t
47. 2,4-Dimethylphenol
105679
540 a
2,300 a
48. 2-Methyl-4,6Dinitrophenol
534521
13.4 s
765 t
49. 2,4-Dinitrophenol
51285
70 a,s
14,000 a,t
50. 2-Nitrophenol
88755
51. 4-Nitrophenol
100027
0.28 a,c
8.2 a,cj
52. 3-Methyl-4Chlorophenol
59507
53. Pentachlorophenol
87865
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15 f,w
Fmt 4700
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13
7.9
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54. Phenol
108952
21,000 a
4,600,000
a,j,t
55. 2,4,6-Trichlorophenol
88062
2.1 a,c
6.5 a,c
56. Acenaphthene
83329
1,200 a
2,700 a
57. Acenaphthylene
208968
58. Anthracene
120127
9,600 a
110,000 a
59. Benzidine
92875
0.00012
a,c,s
0.00054 a,c,t
60. Benzo(a)Anthracene
56553
0.0044 a,c
0.049 a,c
61. Benzo(a)Pyrene
50328
0.0044 a,c
0.049 a,c
62. Benzo(b)Fluoranthene
205992
0.0044 a,c
0.049 a,c
63. Benzo(ghi)Perylene
191242
64. Benzo(k)Fluoranthene
207089
0.0044 a,c
0.049 a,c
65. Bis(2Chloroethoxy)Methane
111911
66. Bis(2-Chloroethyl)Ether
111444
0.031 a,c,s
1.4 a,c,t
67. Bis(2Chloroisopropyl)Ether
108601
1,400 a
170,000 a,t
68. Bis(2Ethylhexyl)Phthalate
117817
1.8 a,c,s
5.9 a,c,t
69. 4-Bromophenyl Phenyl
Ether
101553
70. Butylbenzyl Phthalate
85687
3,000 a
5,200 a
71. 2-Chloronaphthalene
91587
1,700 a
4,300 a
218019
0.0044 a,c
0.049 a,c
74. Dibenzo(a,h)Anthracene
53703
0.0044 a,c
0.049 a,c
75. 1,2 Dichlorobenzene
95501
2,700 a
17,000 a
76. 1,3 Dichlorobenzene
541731
400
2,600
77. 1,4 Dichlorobenzene
106467
400
2,600
78. 3,3'-Dichlorobenzidine
91941
0.04 a,c,s
0.077 a,c,t
79. Diethyl Phthalate
84662
23,000 a,s
120,000 a,t
131113
313,000 s
2,900,000 t
84742
2,700 a,s
12,000 a,t
82. 2,4-Dinitrotoluene
121142
0.11 c,s
9.1 c,t
83. 2,6-Dinitrotoluene
606202
84. Di-n-Octyl Phthalate
117840
72. 4-Chlorophenyl Phenyl
Ether
80. Dimethyl Phthalate
81. Di-n-Butyl Phthalate
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E:\FR\FM\17DER1.SGM
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7005723
73. Chrysene
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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
85. 1,2-Diphenylhydrazine
122667
0.040 a,c,s
0.54 a,c,t
86. Fluoranthene
206440
300 a
370 a
86737
1,300 a
14,000 a
118741
0.00075
a,c
0.00077 a,c
89. Hexachlorobutadiene
87683
0.44 a,c,s
50 a,c,t
90.
Hexachlorocyclopentadiene
77474
240 a,s
17,000 aj,t
91. Hexachloroethane
67721
1.9 a,c,s
8.9 a,c,t
193395
0.0044 a,c
0.049 a,c
93. lsophorone
78591
8.4 c,s
600 c,t
94. Naphthalene
91203
95. Nitrobenzene
98953
17 a,s
1,900 a,j,t
96. NNitrosodimethylamine
62759
0.00069
a,c,s
8.1 a,c,t
621647
0.005 a
1.4 a
98. N-Nitrosodiphenylamine
86306
5.0 a,c,s
16 a,c,t
99. Phenanthrene
85018
960 a
11,000 a
0.00013
a,c
0.00014 a,c
87. Fluorene
88. Hexachlorobenzene
92. Indeno(l,2,3-cd) Pyrene
97. N-Nitrosodi-nPropylamine
100. Pyrene
129000
101. 1,2,4-Trichlorobenzene
120821
102. Aldrin
309002
103. alpha-BHC
319846
0.0039 a,c
0.013 a,c
104. beta-BHC
319857
0.014 a,c
0.046 a,c
0.019
0.063
ddrumheller on DSK120RN23PROD with RULES1
105. gamma-BHC
58899
3g
1.3 g
0.16 g
0.95 w
C
C
106. delta-BHC
319868
107. Chlordane
57749
2.4 g
0.0043 g
0.09 g
0.004 g
0.00057
a,c
0.00059 a,c
108. 4,4'-DDT
50293
1.1 g
0.001 g
0.13 g
0.001 g
0.00059
a,c
0.00059 a,c
109. 4,4'-DDE
72559
0.00059
a,c
0.00059 a,c
110. 4,4'-DDD
72548
0.00083
a,c
0.00084 a,c
111. Dieldrin
60571
0.24w
0.056 w
0.71 g
0.0019 g
0.00014
a,c
0.00014 a,c
959988
0.22 g
0.056 g
0.034 g
0.0087 g
110 a
240 a
33213659
0.22 g
0.056 g
0.034 g
0.0087 g
110 a
240 a
112. alpha-Endosulfan
113. beta-Endosulfan
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E:\FR\FM\17DER1.SGM
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101932
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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
114. Endosulfan Sulfate
1031078
115. Endrin
72208
116. Endrin Aldehyde
0.037 g
0.0023 g
240 a
0.76 a
0.81 aj
0.76 a
0.81 aj
76448
0.52g
0.0038 g
0.053 g
0.0036 g
0.00021
a,c
0.00021 a,c
1024573
0.52 g
0.0038 g
0.053 g
0.0036 g
0.00010
a,c
0.00011 a,c
0.03 u
0.00017
c,v
0.00017 c,v
119-125. Polychlorinated
biphenyls (PCBs)
126. Toxaphene
0.036 w
7421934
117. Heptachlor
118. Heptachlor Epoxide
0.086w
110 a
0.014 u
8001352
Total Number of Criteria h
0.73
0.0002
0.21
0.0002
0.00073
a,c
0.00075 a,c
22
21
22
20
92
90
a. Criteria revised to reflect the Agency q 1* or RID, 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 III2A 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.
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/1.
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e. Freshwater aquatic life criteria for metals are expressed as a function of total hardness (mg/L)
101934
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
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(l.005(pH)-4.869). CCC= exp(l.005(pH)-5.134).
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 440/580-071). 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 Bl or Cl 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.
1. See paragraph (b)(1 )(i) of this section.
m. These freshwater and saltwater criteria for metals are expressed in terms of the dissolved
Clean Water Act 304(a) guidance values (described in the total recoverable fraction) and then
applying the conversion factors in§ 131.36(b)(l) and (2).
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fraction of the metal in the water column. Criterion values were calculated by using the EPA's
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
101935
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 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 paragraph (b)(l)(i) of this section 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. Paragraph (b)(1 )(i) 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, paragraph (b)(l)(i) 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
criteria.
s. These criteria were promulgated for specific waters in California in the NTR. The specific
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excluding the San Francisco Bay. This section does not apply instead of the NTR for these
101936
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
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, EP A-820-B96-001, 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
(i) California Freshwater Selenium
Ambient Chronic Water Quality
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Criterion for Protection of Aquatic Life
and Aquatic-Dependent Wildlife.
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Table 2 to Paragraph (b)(1)(i)
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Angeles River and its tributaries; therefore, this criterion does not apply to these waters.
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
101937
8.5 mg/kgdw
whole-body
1.5 µg/L in lentic
aquatic systems
or
15.1 mg/kg dw
11.3 mg/kg dw
muscle
(skinless,
boneless filet)
3 .1 µg/L in lotic
aquatic systems
WQCint
=
WQC30-day -
cbkgrnd(l - lint)
lint
Instantaneous
measurement7
Instantaneous
measurement7
Instantaneous
measurement7
30 days
Number of days/month with an
elevated concentration
exceeded
Not to be
exceeded
Not to be
exceeded
Not more than
once in three
years on average
Not more than once in three years
on average
BILLING CODE 6560–50–C
(ii) Priority toxic pollutants. Table 1 to
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 criteria guidance under CWA
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section 304(a). 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. The EPA has added the
Chemical Abstracts Service (CAS)
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registry numbers, which provide a
unique identification for each chemical.
(iii) Criteria recommendations not
included in table 1 to this paragraph
(b)(1). The following chemicals have
organoleptic-based criteria
recommendations that are not included
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1. Fish tissue criterion elements are expressed as steady-state.
2. Fish egg-ovary supersedes any whole-body, muscle, or water column criterion elements for aquatic life when fish egg-ovary are
measured, except as noted in footnote 4. Bird egg supersedes water column criterion elements for aquatic-dependent wildlife when
bird eggs are measured, except as noted in footnote 4. The bird tissue criterion element is independently applicable from and
equivalent to the fish tissue criterion elements.
3. Fish whole-body or muscle tissue supersedes the water column criterion elements when both fish tissue and water concentrations
are measured, except as noted in footnote 4.
4. Water column criterion elements are based on dissolved total selenium in water and are derived from fish tissue and bird tissue
criterion elements via bioaccumulation modeling. When selenium inputs are increasing, water column criterion elements are the
applicable criterion elements in the absence of steady-state condition fish tissue or bird tissue data.
5. The water column criterion element, which applies independently to the respective aquatic life and aquatic-dependent wildlife uses,
is applicable for all CWA purposes and consists of a water column value of 1.5 µg/L in lentic aquatic systems and 3 .1 µg/L in lotic
aquatic systems unless or until a site-specific water column criterion element is derived for a particular waterbody following the
methodology described in Method for Translating Selenium Tissue Criterion Elements into Site-specific Water Column Criterion
Elements for California, Version 2, December 2024. This publication is incorporated by reference into this section with the
approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. All approved material is available at
EPA, OW Docket, EPA West, Room 3334, 1301 Constitution Ave., NW, Washington, DC, 20004; phone: (202) 566-2426; website:
https://www.epa.gov/wqs-tech/water-quality-standards-establishment-numeric-criterion-selenium-:fresh-waters-california. It is also
available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this
material at NARA, visit www.archives.gov/federal-registerlcfr/ibr-locations or emailfr.inspection@nara.gov.
6. Where WQC 3o-day is the applicable water column monthly criterion element, Cbkgrnd is the average background selenium
concentration, and fint is the fraction of any 30-day period during which elevated selenium concentrations occur, with fint assigned a
value 2':0.033 (corresponding to 1 day).
7. Fish tissue and bird tissue data provide instantaneous point measurements that reflect integrative accumulation of selenium over
time and space in bird or fish population(s) at a given site.
101938
Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations
in table 1: zinc, 3-methyl-4chlorophenol.
(iv) Freshwater and saltwater aquatic
life criteria. 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
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
§ 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. 2024–29483 Filed 12–16–24; 8:45 am]
BILLING CODE 6560–50–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 174
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[EPA–HQ–OPP–2022–0231; FRL–12399–01–
OCSPP]
Brevibacillus Laterosporus
Mpp75Aa1.1 and Bacillus
Thuringiensis Vpb4Da2 Proteins;
Exemptions From the Requirement of
a Tolerance
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
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This regulation establishes
exemptions from the requirement of a
tolerance for residues of the
Brevibacillus laterosporus Mpp75Aa1.1
and Bacillus thuringiensis Vpb4Da2
proteins (hereafter Mpp75Aa1.1 and
Vpb4Da2 proteins) in or on the food and
feed commodities of corn: corn, field;
corn, sweet, and corn, pop when used
as plant-incorporated protectants (PIP)
in corn. Bayer CropScience LP.,
submitted a petition to EPA under the
Federal Food, Drug, and Cosmetic Act
(FFDCA), requesting these exemptions.
These regulations eliminate the need to
establish maximum permissible levels
for residues of Mpp75Aa1.1 and
Vpb4Da2 proteins.
SUMMARY:
This regulation is effective
December 17, 2024. Objections and
requests for hearings must be received
on or before February 18, 2025, and
must be filed in accordance with the
instructions provided in 40 CFR part
178 (see also Unit I.C. of the
SUPPLEMENTARY INFORMATION).
DATES:
The docket for this action,
identified by docket identification (ID)
number EPA–HQ–OPP–2022–0231, is
available at https://
www.regulations.gov. Please review the
visitor instructions and additional
information about the docket available
at https://www.epa.gov/dockets.
ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
Madison Le, Biopesticides and Pollution
Prevention Division (7511M), Office of
Pesticide Programs, Environmental
Protection Agency, 1200 Pennsylvania
Ave. NW, Washington, DC 20460–0001;
main telephone number: (202) 564–
5754; email address: BPPDFRNotices@
epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
You may be potentially affected by
this action if you are an agricultural
producer, food manufacturer, or
pesticide manufacturer. The following
list of North American Industrial
Classification System (NAICS) codes is
not intended to be exhaustive, but rather
provides a guide to help readers
determine whether this document
applies to them. Potentially affected
entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code
112).
• Food manufacturing (NAICS code
311).
• Pesticide manufacturing (NAICS
code 32532).
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B. How can I get electronic access to
other related information?
You may access a frequently updated
electronic version of 40 CFR part 174
through the Office of the Federal
Register’s e-CFR site at https://
www.ecfr.gov/current/title-40/chapter-I/
subchapter-E/part-174.
C. How can I file an objection or hearing
request?
Under FFDCA section 408(g), 21
U.S.C. 346a(g), any person may file an
objection to any aspect of this regulation
and may also request a hearing on those
objections. You must file your objection
or request a hearing on this regulation
in accordance with the instructions
provided in 40 CFR part 178. To ensure
proper receipt by EPA, you must
identify docket ID number EPA–HQ–
OPP–2022–0231, in the subject line on
the first page of your submission. All
objections and requests for a hearing
must be in writing and must be received
by the Hearing Clerk on or before
February 18, 2025. Addresses for mail
and hand delivery of objections and
hearing requests are provided in 40 CFR
178.25(b).
In addition to filing an objection or
hearing request with the Hearing Clerk
as described in 40 CFR part 178, please
submit a copy of the filing (excluding
any Confidential Business Information
(CBI)) for inclusion in the public docket.
Information not marked confidential
pursuant to 40 CFR part 2 may be
disclosed publicly by EPA without prior
notice. Submit the non-CBI copy of your
objection or hearing request, identified
by docket ID number EPA–HQ–OPP–
2022–0231, by one of the following
methods:
Federal eRulemaking Portal: https://
www.regulations.gov. Follow the online
instructions for submitting comments.
Do not submit electronically any
information you consider to be CBI or
other information whose disclosure is
restricted by statute.
Mail: OPP Docket, Environmental
Protection Agency Docket Center (EPA/
DC), (28221T), 1200 Pennsylvania Ave.
NW, Washington, DC 20460–0001.
Hand Delivery: To make special
arrangements for hand delivery or
delivery of boxed information, please
follow the instructions at https://
www.epa.gov/dockets/where-sendcomments-epa-dockets.
Additional instructions on
commenting or visiting the docket,
along with more information about
dockets generally, is available at https://
www.epa.gov/dockets.
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Agencies
[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101914-101938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29483]
[[Page 101914]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[EPA-HQ-OW-2018-0056; FRL 6322-03-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: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Environmental Protection Agency (the EPA or the Agency) is
amending a Federal Clean Water Act (CWA) rule, the California Toxics
Rule, to promulgate a final, revised statewide chronic freshwater
selenium water quality criterion applicable to certain California
waters to protect aquatic life and aquatic-dependent wildlife from
exposure to toxic levels of selenium. This revised criterion builds
upon the science underlying the EPA's current national CWA section
304(a) recommended aquatic life freshwater criterion for selenium.
DATES: This rule is effective on January 16, 2025. The incorporation by
reference of certain publications listed in the rule is approved by the
Director of the Federal Register as of January 16, 2025.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2018-0056. All documents in the docket are
listed on the https://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (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 electronically
through www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Maria Letourneau, Office of Water,
Standards and Health Protection Division (4305T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 566-2700; email address:
[email protected]; or Diane Fleck, Water Division (WTR-2-1),
Environmental Protection Agency Region 9, 75 Hawthorne Street, San
Francisco, CA 94105; telephone number: (213) 244-1836; email address:
[email protected].
SUPPLEMENTARY INFORMATION: This final rule is organized as follows:
I. General Information
A. Applicability
B. The EPA's Development of the Final Rule
II. Background
A. Statutory and Regulatory Authority
B. Applicable Selenium Criteria in California
C. California Toxics Rule and Endangered Species Act
Consultation
D. Litigation
E. Selenium and Sources of Selenium
III. Final Freshwater Chronic Selenium Criterion
A. The EPA's Approach
B. Administrator's Determination of Necessity
C. Final Chronic Selenium Criterion for California's Fresh
Waters
D. Implementation of the Final Chronic Selenium Criterion in
California
E. Incorporation by Reference
IV. Endangered Species Act
V. Applicability of the EPA-Promulgated Water Quality Standards
VI. Conditions When Federal Standards Would Be Withdrawn
VII. Alternative Regulatory Approaches
VIII. Economic Analysis
IX. Statutory and Executive Orders
A. Executive Order 12866 (Regulatory Planning and Review) and
Executive Order 14094 (Modernizing Regulatory Review)
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132 (Federalism)
F. Executive Order 13175 (Consultation and Coordination With
Indian Tribal Governments)
G. Executive Order 13045 (Protection of Children From
Environmental Health and Safety Risks)
H. Executive Order 13211 (Actions That Significantly Affect
Energy Supply, Distribution, or Use)
I. National Technology Transfer and Advancement Act of 1995
J. Executive Order 12898 (Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations) and Executive Order 14096 (Revitalizing Our Nation's
Commitment to Environmental Justice for All)
K. Congressional Review Act (CRA)
I. General Information
A. Applicability
Federal water quality standards (WQS) promulgated by the EPA in
this rule will be the applicable WQS for certain waters in California
for Clean Water Act (CWA) purposes after the effective date of this
rule. Specifically, the chronic freshwater selenium criterion in the
final rule will apply to California waters in a manner consistent with
the California Toxics Rule (CTR) and the EPA's proposed rulemaking for
this action (83 FR 64059, December 13, 2018). 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% or more of the time; and (3)
the more stringent of the two apply at salinities between 1 and 10
parts per thousand. As a result, many estuarine waters will be covered
by this rule.
WQS serve as the basis for CWA programs, such as National Pollutant
Discharge Elimination System (NPDES) permitting and identifying
impaired waters under CWA section 303(d). Categories and entities that
could potentially be affected by this rule include the following:
------------------------------------------------------------------------
Examples of potentially affected
Category entities
------------------------------------------------------------------------
Industry.......................... Industries discharging pollutants to
certain waters of California.
Municipalities.................... Publicly owned treatment works or
other facilities discharging
pollutants to certain waters of
California.
Stormwater Management Districts... Entities responsible for managing
stormwater discharges to certain
waters of California.
Agriculture....................... Agricultural entities discharging to
certain waters of California.
------------------------------------------------------------------------
This table is not exhaustive but, rather, it provides a guide that
identifies entities that could be affected by this action. If you have
questions regarding the effect of this action on a particular entity,
please consult the person listed in the FOR FURTHER INFORMATION CONTACT
section.
B. The EPA's Development of the Final Rule
On November 29, 2018, the Administrator of the EPA signed a
proposed rulemaking to establish a
[[Page 101915]]
selenium water quality criterion applicable to California that protects
aquatic life and aquatic-dependent wildlife in certain waters of
California. The proposal was published in the Federal Register at 83 FR
64059 on December 13, 2018. For the proposed rulemaking, the EPA
provided a 60-day public comment period with a 45-day extension and
held two public hearings on March 19 and March 20, 2019, to accept
verbal public comments. By the end of the public comment period on
March 28, 2019, the EPA received a total of 32 comments on a range of
issues submitted by organizations and individuals to the docket for the
rule and during the two public hearings.
For the final rule, the EPA carefully considered the public
comments and feedback the Agency received on the proposed rulemaking.
In relevant sections of the preamble below, the EPA provides brief
summaries of certain comments. Some comments addressed issues beyond
the scope of this rule. For all the comments the EPA received and the
EPA's responses, see the EPA's Response to Comments document in the
public docket for this rule: Docket ID No. EPA-HQ-OW-2018-0056.
II. Background
A. Statutory and Regulatory Authority
The CWA establishes the basic structure for regulating pollutant
discharges from point sources into the waters of the United States. In
the CWA, Congress established the national objective to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters. The CWA also sets forth the interim goal of achieving
water quality, wherever attainable, that provides for both: (1) the
protection and propagation of fish, shellfish, and wildlife; and (2)
recreation in and on the water (sections 101(a) and 101(a)(2)). 33
U.S.C. 1251(a), (a)(2). To help achieve these goals, the CWA created
two complementary structures for regulating discharges in CWA section
402 NPDES permits: first, technology-based effluent limitations (TBELs)
that set a floor for the performance for categories of regulated
dischargers; and second, water quality-based effluent limitations
(WQBELs) that are established where TBELs are insufficient to meet
applicable WQS or site-specific water quality goals. See 33 U.S.C.
1342(a). TBELs in NPDES permits are derived from secondary treatment
standards (for publicly owned treatment works), effluent limitations
guidelines (CWA sections 301 and 304, 33 U.S.C. 1311 and 1314), new
source performance standards (CWA section 306, 33 U.S.C. 1316)
promulgated by the EPA, and/or established on a case-by-case basis
under section 402(a)(1) of the Act (to the extent that EPA-promulgated
effluent limitations are inapplicable). If TBELs are not sufficient to
achieve the WQS in the receiving water, the CWA (section 301(b)(1)(c),
33 U.S.C. 1311(b)(1)(c)) and the EPA's NPDES regulation, 40 CFR
122.44(d), require that the permit writer develop more stringent
WQBELs.
WQS are the foundation of the water quality-based pollution control
programs required by the CWA. Such standards serve as a description of
the desired water quality condition for particular waterbodies. In
addition, WQS serve as the basis for several CWA programs, including:
WQBELs in NPDES permits under section 402, 33 U.S.C. 1342;
Waterbody assessments and establishment of total maximum
daily loads (TMDLs) under section 303(d), 33 U.S.C. 1313(d);
Certifications of Federal licenses and permits under
section 401, 33 U.S.C., 1341.
CWA section 303(c) directs states to adopt WQS for their waters
subject to the CWA. WQS consist of designated uses of the waters, water
quality criteria to protect those uses, and an antidegradation policy
to maintain water quality (CWA section 303(c)(2)(A) and (d)(4)(B)). The
EPA's regulation at 40 CFR 131.11(a)(1) provides 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.''
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) 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) and 40 CFR 131.20 and 131.21). Under CWA
section 303(c)(4)(B), the Administrator is authorized to determine that
a new or revised standard is necessary to meet CWA requirements.
Under CWA section 304(a), the EPA is required to periodically
publish national water quality 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) requires states
to adopt numeric criteria for all toxic pollutants listed pursuant to
CWA section 307(a)(1) for which the EPA has published CWA section
304(a) criteria, where the presence or discharge of those pollutants
could reasonably be expected to interfere with maintaining designated
uses.
B. Applicable Selenium Criteria in California
The EPA has promulgated selenium water quality criteria for various
waterbodies in California. First, in 1992, the EPA promulgated selenium
criteria for certain California waters as part of the Water Quality
Standards; Establishment of Numeric Criteria for Priority Toxic
Pollutants; States' Compliance at 57 FR 60848, December 22, 1992,
(hereafter referred to as the National Toxics Rule or NTR),\1\ and then
again in 2000, as part of the Water Quality Standards; Establishment of
Numeric Criteria for Priority Toxic Pollutants for the State of
California at 65 FR 31681, May 18, 2000, (hereafter referred to as the
California Toxics Rule or CTR).\2\ In each case, the EPA promulgated
the EPA's recommended aquatic life criteria values at the time. In
addition to the NTR and CTR selenium criteria, California has also
adopted site-specific acute and chronic selenium criteria (California
uses the term ``objectives'' instead of criteria). The criteria that
the EPA previously promulgated for California in the NTR,\3\ together
with the criteria promulgated in the CTR and California's site-specific
objectives, established WQS for priority toxic pollutants for inland
surface waters and enclosed bays and estuaries in California.
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\1\ The NTR is codified at 40 CFR 131.36. https://www.ecfr.gov/current/title-40/chapter-I/subchapter-D/part-131#131.36.
\2\ The CTR is codified at 40 CFR 131.38. https://www.ecfr.gov/current/title-40/chapter-I/subchapter-D/part-131/subpart-D/section-131.38.
\3\ 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.
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For a full summary of the applicable selenium criteria covered by
the NTR, the CTR, and California site-specific selenium objectives,
please refer to the preamble of the EPA's proposed rulemaking for this
action, sections II.B and II.C (83 FR 64059, December 13, 2018). For a
discussion on the scope of
[[Page 101916]]
California waters covered by this rule, please see section V. of this
preamble.
C. California Toxics Rule and Endangered Species Act Consultation
As required by section 7 of the Endangered Species Act (ESA) (16
U.S.C. 1531 et seq.), the EPA 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 proposed and final
CTR. The EPA initiated consultation with the Services in 1994. In March
2000, the Services issued a final Joint Biological Opinion. The final
Joint Biological Opinion \4\ recorded commitments by the EPA to: (1)
withhold promulgation of (i.e., reserve) the EPA's proposed acute \5\
freshwater aquatic life criterion for selenium in the final CTR; (2)
revise the national CWA section 304(a) recommended acute and chronic
aquatic life criteria for selenium; and (3) later update the acute and
chronic aquatic life criteria for California consistent with the
revised national CWA section 304(a) recommendations. As a result, in
the May 2000 CTR, the EPA finalized the chronic freshwater selenium
criterion \6\ and the acute and chronic saltwater selenium criteria but
did not finalize the acute freshwater selenium criterion.
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\4\ 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 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).
\5\ 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.
\6\ The final chronic criterion was based on the EPA's 1987
national CWA section 304(a) recommended criterion.
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D. Litigation
Section 303(c)(4)(B) of the CWA gives the EPA Administrator
authority to promulgate water quality standards for a state where
necessary to meet the requirements of CWA section 303. The EPA made an
Administrator's determination under section 303(c)(4)(B) of the CWA,
included in the 1997 proposed \7\ and 2000 final CTR, that numeric
criteria are necessary in California to meet the requirements of
section 303(c)(2)(B) to protect the State's designated uses.\8\ In
2013, two organizations filed a 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 CTR, that selenium criteria were necessary to
implement section 303(c)(2)(B) of the CWA (62 FR 42160, August 5, 1997)
and the work to update the reserved freshwater acute selenium criterion
from the 2000 CTR had not yet been completed. In 2014, the EPA entered
into a consent decree to resolve these claims (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)).
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\7\ Proposed California Toxics Rule, 62 FR 42160 (August 5,
1997).
\8\ See the CTR preamble at section E.1., ``EPA is using section
303(c)(4)(B) as the legal basis for today's final rule.'' 65 FR
31687 (May 18, 2000).
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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. On November 29, 2018, the EPA satisfied this
commitment when the Administrator of the EPA signed the proposed
rulemaking to establish a selenium water quality criterion applicable
to California that protects aquatic life and aquatic-dependent wildlife
in certain waters of California. The consent decree also required that
the EPA request to 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 proposed the criteria.
The EPA satisfied this commitment by initiating ESA consultation with
the Services on the proposed selenium criterion on August 12, 2019.
Further, under the consent decree, the EPA is required to finalize
its proposed selenium criteria within six months of the later of the
following: (1) the date of the EPA's conclusion (if any) that it will
not seek ESA section 7(a)(2) consultation because some or all of the
proposed selenium criteria have ``no effect'' on any listed ESA species
or designated critical habitat; (2) the date of written concurrence
from the Services with any EPA conclusion that some or all of the
proposed selenium criteria are ``not likely to adversely affect''
listed ESA species or designated critical habitat; or (3) the date of
the Services' Biological Opinion(s) concluding any formal consultation
on the proposed selenium criteria.
E. Selenium and Sources of Selenium
Selenium is a naturally occurring, but relatively rare, element
present in sedimentary rocks and soils. It is also present in the
atmosphere as methyl derivatives of selenium. There are around 40 known
selenium-containing minerals, some of which can have as much as 30%
selenium, but all are rare and generally occur together with sulfides
of metals such as copper, zinc, and lead.\9\ The distribution of
organic-enriched sedimentary rocks, black shales, petroleum source
rocks, ore deposits, phosphorites, and coals, in which selenium
typically co-occurs, is well characterized in the United States.\10\
Two major anthropogenic (i.e., human-caused) activities can cause
selenium to become mobilized and introduced into aquatic systems. The
first is extracting metals, minerals, and fossil fuels; the second is
irrigation of selenium-rich soils. Once inorganic selenium is converted
into a bioavailable form (i.e., a form that can be absorbed into the
body following skin contact, ingestion, or inhalation), it enters the
food chain and can bioaccumulate (i.e., can be taken up and retained by
an aquatic organism from any surrounding media, e.g., water, food,
sediment).
---------------------------------------------------------------------------
\9\ Emsley, John. October 2011. Nature's Building Blocks: An A-Z
Guide to the Elements, 2nd Edition.
\10\ Presser TS, Piper DZ, Bird KJ, Skorupa JP, Hamilton SJ,
Detwiler Sj, Huebner MA. 2004. The Phosphoria Formation: a model for
forecasting global selenium sources to the environment. In: JR Hein,
editor. Life cycle of the phosphoria formation: From deposition to
post-mining environment. New York (NY): Elsevier. P 299-319. See
Figures 1 and 2.
---------------------------------------------------------------------------
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) (see 2021 Revision to:
Final Aquatic Life Ambient Water Quality Criteria for Selenium--
Freshwater 2016, US EPA, Office of Water, EPA 822-R-21-006, August
2021). The deformities associated with exposures 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 \11\ indicate that selenium toxicity to aquatic
life and
[[Page 101917]]
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
when algae and other particulate material take up 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. Those factors include a species' sensitivity to selenium, its
population status, and the duration, timing, and life stage of
exposure. In addition, the hydrologic conditions and water chemistry of
a waterbody 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 by aquatic life and aquatic-dependent wildlife given
the rapid movement and predominant form of selenium (selenate). The EPA
considered these and other factors in determining the selenium
criterion for California.
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\11\ Scientific studies used in the development of this
rulemaking can be found in this rule's docket, as well as dockets
EPA-HQ-OW-2004-0019 and EPA-HQ-OW-2015-0392.
---------------------------------------------------------------------------
III. Final Freshwater Chronic Selenium Criterion
A. The EPA's Approach
In 2016, the EPA published a revised national CWA section 304(a)
recommended chronic freshwater aquatic life criterion for selenium to
better account for bioaccumulation through the food chain in different
ecosystems, and published an erratum in 2021, 2021 Revision to: Final
Aquatic Life Ambient Water Quality Criterion for Selenium--Freshwater
2016, US EPA, Office of Water, EPA 822-R-21-006, August 2021.\12\ For
purposes of clarity in this preamble, all subsequent references to the
EPA's current national CWA section 304(a) recommended chronic
freshwater criterion for selenium refers to its 2021 published version.
The recommended chronic freshwater criterion is comprised of four
criterion elements, two of which are fish tissue concentrations and two
of which are water column concentrations. The recommended elements are:
(1) a fish egg-ovary element of 15.1 milligram per kilogram (mg/kg) dry
weight; (2) a fish whole-body element of 8.5 mg/kg dry weight 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 exposure 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).
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\12\ In 2021, the EPA identified that the following text was
missing from the second sentence in footnote 4 in the selenium
criterion table: ``When selenium inputs are increasing'' and issued
an erratum. The EPA corrected footnote 4 to state: ``4. Water column
values are based on dissolved total selenium in water and are
derived from fish tissue values via bioaccumulation modeling. When
selenium inputs are increasing, water column values are the
applicable criterion element in the absence of steady-state
condition fish tissue data.''
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As stated previously, on November 29, 2018, the EPA Administrator
signed the proposed rulemaking to establish a selenium water quality
criterion that protects aquatic life and aquatic-dependent wildlife in
certain fresh waters of California. The EPA proposed its recommended
2016 CWA section 304(a) selenium criterion for freshwater with two
modifications to the criterion. First, the EPA proposed adding a bird
tissue criterion element derived to protect aquatic-dependent wildlife
to the EPA's national CWA section 304(a) selenium criterion. Second,
the EPA proposed replacing the EPA's national CWA section 304(a)
selenium monthly average exposure water column (lentic or lotic)
criterion element (referred to as the default water column criterion
element) with a performance-based approach (PBA) for translating a
tissue criterion element into a corresponding water column criterion
element on a site-specific basis and took comment on whether to keep
the default water column criterion element, in addition to the PBA, in
the final rule.
In this rule, the EPA considered the methodology and information
used to derive the current national CWA section 304(a) recommended
selenium criterion, additional information specific to aquatic-
dependent wildlife in California, and the public comments and feedback
the EPA received on the proposed rulemaking in order to ensure broad
protection for both aquatic and aquatic-dependent species. The final
freshwater chronic selenium criterion for certain waters in California
adds a bird tissue criterion element to the national CWA section 304(a)
selenium criterion, consistent with the proposed rulemaking, in
addition to the PBA. The EPA also included the default water column
criterion element from the EPA's national CWA section 304(a) selenium
criterion, in addition to the PBA in the final rule. The PBA will allow
the State to develop a site-specific water column element to be used
instead of the default water column criterion element. For a further
discussion of the EPA's final chronic freshwater selenium criterion and
what the EPA considered in finalizing this rule, see section III.C of
this preamble and also refer to the EPA's Response to Comments document
in the public docket for this rule.
As mentioned previously, the chronic freshwater selenium criterion
in this final rule will apply to California waters in a manner
consistent with the CTR and the EPA's proposed rulemaking for this
action (83 FR 64059, December 13, 2018).
The promulgated criterion establishes levels of selenium that
protect California's aquatic life and aquatic-dependent wildlife
designated uses (California uses the term ``beneficial uses'' instead
of designated uses) for certain waters of California consistent with
California's implementation of the CTR. California's applicable
designated (beneficial) uses for the protection of aquatic life and
aquatic-dependent wildlife are listed in table 1 of this preamble.
Table 1--Applicable Designated (Beneficial) Uses for California \13\
----------------------------------------------------------------------------------------------------------------
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 Organisms.......... MIGR....................... Uses of water that support habitats
necessary for migration or other
temporary activities by aquatic
organisms, such as anadromous fish.
[[Page 101918]]
Spawning, Reproduction, and/or Early SPWN....................... Uses of water that support high quality
Development. 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 Endangered Species. RARE....................... Uses of water that 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
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\13\ 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).
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As previously noted, in the 1997 proposed and 2000 final CTR, the
EPA Administrator determined under CWA section 303(c)(4)(B) that
selenium criteria were necessary in California. In the 1997 proposed
CTR, the EPA proposed both acute and chronic freshwater selenium
criteria. In the 2000 final CTR, the EPA promulgated a chronic
freshwater selenium criterion; withheld promulgation of (i.e.,
reserved) an acute freshwater selenium criterion; and committed to
revising the national CWA section 304(a) recommended acute and chronic
aquatic life criteria for selenium and later updating the acute and
chronic aquatic life criteria for California consistent with the
revised national CWA section 304(a) recommendations. The Services
incorporated the EPA's commitments as Terms and Conditions in the final
Joint Biological Opinion for the CTR.
In November 2018, the EPA proposed a revised chronic selenium
criterion based on the EPA's current national CWA section 304(a)
recommended criterion for selenium, which only includes a chronic
criterion. The EPA's current national CWA section 304(a) recommendation
does not include a separate acute criterion because selenium is
bioaccumulative and toxicity primarily occurs through dietary exposure.
Although selenium may cause acute toxicity at high concentrations, the
most harmful effect on aquatic organisms is due to its bioaccumulative
properties; these chronic effects occur at lower concentrations of
selenium in aquatic organisms than acute effects. In addition, as
discussed further in section III.C of this preamble, application of the
intermittent exposure criterion element (that the EPA is promulgating
as part of the chronic criterion) to single day, high exposure events
will provide protection from the most important selenium toxicity
effect, reproductive toxicity, by protecting against selenium
bioaccumulation in the aquatic ecosystem resulting from short-term,
high exposure events. Since the time of the EPA's proposed rulemaking
in November 2018, the EPA is not aware of any significant scientific
updates to alter the scientific basis underlying the EPA's current
national CWA section 304(a) recommended freshwater chronic selenium
criterion. As a result, the EPA is not including a separate freshwater
acute selenium criterion.
Accordingly, promulgation of the freshwater chronic selenium
criterion in this rule completes the EPA's action pursuant to the
Administrator's Determination as it pertains to selenium criteria, as
provided in the 1997 and 2000 preambles to the CTR.
In addition, this promulgation satisfies the Services' Term and
Condition included in the final Joint Biological Opinion for the CTR to
update the selenium criterion for California consistent with the
current national CWA section 304(a) recommendations (see section II.C.
of this preamble). For more information about the ESA consultation
completed for this final rule, see section IV. of this preamble.
C. Final Chronic Selenium Criterion for California's Fresh Waters
In this final rule, the EPA is promulgating its current national
CWA section 304(a) recommended chronic selenium criterion for certain
fresh waters in California (including the default water column
criterion element), with the addition of a bird tissue criterion
element and a performance-based approach (PBA) \14\ for translating a
tissue criterion element into a corresponding water column criterion
element on a site-specific basis. In its proposed rulemaking, the EPA
solicited comment on whether to replace the default water column
criterion element from the Agency's 2016 CWA section 304(a) selenium
criterion with the PBA, replace the PBA with the default water column
criterion element from the Agency's 2016 CWA section 304(a) selenium
criterion, or include both. As discussed further in this section and in
the EPA's Response to Comments document in the public docket for this
rule, the EPA is including both the default water column criterion
element and the PBA in its promulgation of the chronic criterion; a
site-specific water column value developed using the PBA may be used in
place of the default (lentic or lotic) water column criterion element.
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\14\ 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 policies, procedures, analyses, and public
participation requirements for that water quality standard as the
state or authorized Tribe. See 40 CFR 131.22(c). The concept of a
performance-based approach was first described in the Federal
Register document EPA Review and Approval of State and Tribal Water
Quality Standards--Final Rule (65 FR 24641-24653; April 27, 2000).
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The final freshwater chronic selenium criterion for California is
depicted in table 2 of this preamble.
In the proposed rulemaking, the EPA solicited comment on two
potential criteria structures: (1) one criterion that protects both the
applicable aquatic life and aquatic-dependent wildlife designated uses;
and (2) two separate criteria with one intended to protect the
applicable aquatic life designated uses and one intended to protect the
applicable aquatic-dependent wildlife designated uses. Most commenters
requested that the EPA keep the proposed option of one criterion.
[[Page 101919]]
After considering comments, the EPA is finalizing the rule as
proposed, meaning that one criterion (with multiple criterion elements
as shown in table 2 of this preamble) will be used to protect both
aquatic life and aquatic-dependent wildlife designated uses in the
waters covered by this rule. The one criterion consists of the
following criterion elements: fish egg-ovary tissue, fish muscle or
whole-body tissue, bird egg tissue, default water column (lentic and
lotic), intermittent exposure water column, and a PBA for translating
the tissue criterion elements into corresponding water column criterion
elements on a site-specific basis.
The tissue criterion elements consist of (1) a fish egg-ovary
criterion element of 15.1 mg/kg dry weight, (2) 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, and (3) a bird egg criterion element
of 11.2 mg/kg dry weight. The fish egg-ovary tissue (from which all
other fish tissue elements were derived) and bird egg tissue criterion
elements were developed to protect aquatic and aquatic-dependent
wildlife populations from impacts caused by selenium: they reflect
biological uptake of selenium through diet, which is the predominant
pathway for selenium toxicity, and are most predictive of the observed
biological endpoint of concern, reproductive toxicity.
The water column criterion elements consist of (1) the default
water column criterion element for lentic waters, 1.5 [micro]g/L, or
for lotic waters, 3.1 [micro]g/L and (2) the intermittent exposure
water column criterion element. In addition to the default water column
criterion element, EPA is also promulgating the PBA Method for
Translating Selenium Tissue Criterion Elements into Site-specific Water
Column Criterion Elements for California, Version 2, December 2024,
which is available in the docket for this rulemaking and incorporated
by reference as part of this rule.
The chronic selenium criterion applies to the entire aquatic
community, including aquatic-dependent wildlife. Based on the analysis
in the accompanying Technical Support Document (TSD) to this rule
(FINAL Aquatic Life and Aquatic-Dependent Wildlife Selenium Water
Quality Criterion for Freshwaters of California (December 2024)) and
the EPA's previous work (2021 Revision to: Final Aquatic Life Ambient
Water Quality Criterion for Selenium--Freshwater 2016, US EPA, Office
of Water, EPA 822-R-21-006, August 2021), as well as currently
available data, fish and birds are considered the most sensitive
aquatic and aquatic-dependent taxa to selenium effects, respectively.
The available data indicate that applying the criterion in table 2
of this preamble would protect aquatic life and aquatic-dependent
wildlife from the toxic effects of selenium, recognizing that the bird
tissue criterion element is independently applicable from and
equivalent to the fish tissue criterion elements; the fish egg-ovary
criterion element supersedes all other fish tissue elements; the fish
tissue criterion elements (egg-ovary, whole-body, and/or muscle)
supersede water column criterion elements for aquatic life when fish
tissue is measured; and the bird tissue criterion element supersedes
water column criterion elements for aquatic-dependent wildlife when
bird egg tissue is measured. This hierarchy reflects the fact that fish
and bird tissue concentrations provide the most robust and direct
information on potential selenium effects in fish and birds. See
section III.D Implementation of the Final Chronic Selenium Criterion in
California of this preamble for the discussion regarding implementation
of the final chronic selenium criterion and one exception to the
hierarchy described above when selenium inputs are increasing.
The EPA is promulgating the following chronic criterion in new
paragraph (b)(1)(i) of 40 CFR 131.38. The EPA is also making revisions
to footnote q in the criteria table in paragraph (b)(1) and clarifying
edits regarding the applicability of this criterion in paragraphs
(c)(3)(ii) and (iii). The EPA is not amending or revising the contents
of the table in (b)(1) and language in 40 CFR 131.38, except as
specified in the preceding two sentences.
[[Page 101920]]
[GRAPHIC] [TIFF OMITTED] TR17DE24.066
[[Page 101921]]
Performance-Based Approach (PBA) for Translating Tissue Criterion
Elements to Site-Specific Water Column Criterion Elements
As part of the criterion depicted in table 2 of this preamble, the
EPA is incorporating by reference the PBA, Method for Translating
Selenium Tissue Criterion Elements into Site-specific Water Column
Criterion Elements for California, Version 2, December 2024. The PBA is
a methodology that the State may use to translate the bird and fish
tissue criterion elements into water column criterion elements on a
site-specific basis.
If the State chooses to use the PBA, the State will coordinate with
the EPA at the beginning of the process. The PBA is itself incorporated
by reference into this rule and thus is part of the applicable WQS that
the EPA is promulgating. As such, California is not required to adopt
and submit the outcomes that result from using the PBA (i.e., water
column criterion elements for site-specific waterbodies) to the EPA for
CWA section 303(c) review. In this rule, the EPA is promulgating the
PBA as a scientifically defensible methodology that is sufficiently
detailed and has suitable safeguards to ensure predictable, repeatable
outcomes that will protect California's applicable beneficial uses. If
California chooses to use the PBA for a particular site, each resulting
site-specific water column criterion element would be applicable for
CWA purposes, without the need for separate EPA approval under CWA
section 303(c).
The PBA provides two methodologies for deriving a site-specific
water column criterion element: (1) the mechanistic modeling approach;
and (2) the empirical bioaccumulation factor (BAF) approach:
(1) 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. This 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 element. It is also the approach the EPA
used to develop the national CWA section 304(a) recommended selenium
water column criterion elements.
(2) 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 the concentrations to determine a site-
specific water column criterion element.
As stated in footnote 5 of criterion, the default water column
criterion element, consisting of a water column value of 1.5 [micro]g/L
dissolved total selenium in lentic aquatic systems and 3.1 [micro]g/L
dissolved total selenium in lotic aquatic systems, applies for all CWA
purposes according to the hierarchy of the criterion, unless a site-
specific water column criterion element is derived following the PBA.
If California decides to use the PBA to translate the applicable
fish tissue or bird tissue criterion elements into site-specific water
column criterion elements, those translated values would be applicable
for, and protective of, the use for which the translation was
completed. For example, if California used the PBA to translate the
fish tissue criterion element into a water column criterion element,
that water column criterion element would protect aquatic life; if
California used the PBA to translate the bird tissue criterion element
into a water column criterion element, that water column criterion
element would protect aquatic-dependent wildlife.
The EPA looks forward to coordinating and working with the State to
ensure consistency with the PBA methodology before implementation in
other CWA programs. Importantly, for public transparency, the EPA
recommends California maintain a list of the resulting site-specific
water column criterion elements. The EPA also recommends that
California make its analyses and the underlying data used for each
site-specific water column derivation available on a publicly
accessible State website.
As with other criteria, the State maintains discretion to adopt new
or revised site-specific criteria and submit them to the EPA in
accordance with CWA section 303(c) and EPA's implementing regulations
at 40 CFR part 131. This could arise in the context of an entirely
different criterion, an alternative water column criterion element, or
an alternative tissue to water column derivation methodology. Please
refer to section VI, Conditions When Federal Standards Would Be
Withdrawn of this preamble for a discussion regarding the applicability
of California-adopted, EPA-approved WQS in light of this Federal
promulgation.
If the State chooses not to follow the PBA as prescribed, the State
would need to adopt and submit site-specific water column criterion
elements to the EPA for CWA section 303(c) review and approval in
accordance with the procedures at 40 CFR part 131 in order to rely on
them as applicable WQS for other CWA programs such as the TMDL and
NPDES permitting programs. This is because the new value would not
derive from or comply with applicable WQS (see 40 CFR 122.44(d)).\15\
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\15\ 82 FR 25628, April 27, 2000.
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In the proposed rulemaking, the EPA took comment on whether the
national CWA section 304(a) recommended water column criterion element
(lentic and lotic) should be included as a default, in addition to or
in place of the PBA, in the final selenium criterion. Most commenters
supported including the PBA in the final rule, and some requested that
the default water column criterion element not be included in the final
rule. However, several comments highlighted implementation concerns,
such as gaps in protection before the PBA can be used to develop site-
specific water column criterion elements, anticipated burdens on
industry to rely on the PBA to derive site-specific water column
criterion elements, and new discharger considerations that could be
mitigated by including the default water column criterion element, in
addition to the PBA.
In consideration of these public comments and to maintain
consistency with the EPA's latest scientific recommendation to ensure
protection of aquatic life and aquatic-dependent wildlife from exposure
to toxic levels of selenium, as articulated in the EPA's current
national CWA section 304(a) recommended freshwater aquatic life
criterion for selenium and the TSD accompanying this final rule, the
EPA decided to include the default water column criterion element as
part of the California selenium criterion for the final rule, in
addition to the PBA. This will ensure protection from excessive
selenium in certain waters in California when tissue data are
unavailable. Specifically, water column data and criterion elements can
be applied for CWA implementation purposes when tissue data are
unavailable. When all of the criterion elements are applied together,
the tissue and water column criterion elements protect aquatic life and
aquatic-dependent wildlife from the chronic effects of exposure to
selenium in waterbodies. This will also help ensure that California is
able to implement the Federally promulgated selenium criterion as soon
as it is effective under the CWA.
The EPA also specifically solicited comment on whether it would be
[[Page 101922]]
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
the PBA, and if so, what methods are available and appropriate for this
large-scale translation. Most commenters agreed that a larger-scale
translation method was not appropriate, finding the PBA was more
appropriate and scientifically defensible on a waterbody site-specific
scale, given the highly localized conditions that affect selenium
bioaccumulation. After taking into consideration all comments, EPA
decided to keep the allowable application of the PBA limited to an
individual waterbody or waterbody segment. Developing a water column
translation for a larger geographic area involves additional
considerations that are not included in the PBA. These additional
considerations are likely unique to the geographic area and would be
better addressed through an individual site-specific criteria process
by the State. California retains the ability to develop a site-specific
criterion for a larger site, such as a watershed or ecoregion. Any such
state-adopted, site-specific criterion must be submitted to the EPA for
review and approval pursuant to CWA section 303(c) and the EPA's
implementing regulations at 40 CFR part 131 to be effective for CWA
purposes.
The EPA intends for the PBA to be severable from the remainder of
the final selenium criterion in this rule. As explained above, the EPA
has chosen to promulgate the PBA as part of the criterion, providing
one means for the State to translate the bird and fish tissue criterion
elements into water column criterion elements on a site-specific basis.
The EPA included the PBA in this final rule to provide an efficient
means to account for site-specific information to inform the applicable
water column criterion element. The removal of the PBA would not change
how the overall rule functions. The final selenium criterion protects
aquatic life and aquatic-dependent wildlife through the applicable
tissue and water column criterion elements for all the specified waters
in California. In contrast, as discussed above, California's use of the
PBA in the final rule is optional and not mandatory. As such, the
tissue and water column criterion elements apply independently of the
PBA and function separately to meet the requirements of CWA section
303(c). In the absence of the PBA, the other criterion elements of the
final selenium criterion will still protect the designated uses for
aquatic life and aquatic-dependent wildlife in accordance with CWA
section 303(c) and the EPA's implementing regulations. In other words,
the final selenium criterion, with the criterion elements absent the
PBA, still functions as the applicable criterion to protect the
designated uses. Further, California could pursue other options in lieu
of using the PBA to adopt site-specific selenium criteria. For example,
as with other criteria, the State maintains discretion to adopt new or
revised site-specific criteria and submit them to the EPA in accordance
with CWA section 303(c) and the EPA's implementing regulations at 40
CFR part 131. Accordingly, the EPA intends this portion of the rule to
be severable from the remainder of the rule.
Intermittent Exposure Criterion Element
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 lower concentrations than acute effects, the chronic
criterion is 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 elevated selenium load into the system).
Therefore, the EPA is also promulgating the intermittent exposure
criterion element within the chronic criterion to prevent long-term
detrimental effects from these high concentration, short-term
exposures.
The EPA's intermittent exposure criterion element is derived
mathematically from either the default water column criterion element
or the performance-based, site-specific monthly water column criterion
element, using the equation shown in Table 2 of this preamble. The
equation expresses the intermittent exposure water column criterion
element in terms of the 30-day default water column criterion element,
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 element calculation is consistent with the EPA's
current national CWA section 304(a) recommended chronic freshwater
aquatic life criterion for selenium. It is meant to be used in
situations where a noncontinuous discharge containing selenium is
present in the waterbody of interest.
D. Implementation of the Final Chronic Selenium Criterion in California
Identification of Impaired Waters and TMDL Development
WQS provide the basis for identifying impaired waters (waters not
attaining the applicable WQS) and developing TMDLs pursuant to CWA
section 303(d). With the promulgation of this multi-element criterion,
all criterion elements will be available for assessment purposes. If
multiple types of data are collected at a site, they will be used for
implementation purposes according to the hierarchical structure of the
selenium criterion. For purposes of assessing attainment of the WQS
based on the criterion and as mentioned in section III.C of this
preamble, the bird tissue criterion element is independently applicable
from the fish tissue criterion elements. Specifically, if the bird
tissue criterion element is exceeded, the criterion is not being
attained for the applicable aquatic-dependent wildlife designated uses,
and if the fish tissue criterion element is exceeded (using the
hierarchy for fish tissue), the criterion is not being attained for the
applicable aquatic life designated uses. For aquatic-dependent
wildlife, the bird egg tissue element supersedes the water column
elements if both are measured. For aquatic life, the fish egg-ovary
tissue criterion element supersedes the muscle or whole-body criterion
elements and all fish tissue criterion elements supersede water column
criterion elements. However, there is one exception to this hierarchy.
When selenium is increasing due to new inputs, footnote 4 of the
criterion specifies that the water column criterion elements must be
used when steady-state fish or bird tissue data are not available for
each respective use, as discussed further below. Also, the default
water column criterion element applies for CWA purposes for each
respective designated use unless site-specific water column criterion
elements are derived following the methodology described in the PBA, or
site-specific water column criterion elements that do not follow the
methodology prescribed by the PBA are adopted by California and
approved by the EPA pursuant to CWA section 303(c) and the EPA's
implementing regulations.
[[Page 101923]]
Selenium concentrations in fish and bird tissue are primarily a
result of selenium bioaccumulation via dietary exposure. In both the
EPA's current national CWA section 304(a) recommended aquatic life
criterion for selenium and this California selenium rulemaking, steady-
state refers to conditions where sufficient time has passed after the
introduction of a new or increased input of selenium into a waterbody
or watershed of a waterbody such that fish tissue concentrations of
selenium are no longer increasing in the long-term average or multi-
year average. For a tissue measurement to be meaningful, the water from
which the sample is taken should not be experiencing or have recently
experienced new inputs of selenium. When there are new selenium inputs
to a waterbody, fish tissue data and bird tissue data may not fully
represent the potential effects on the aquatic ecosystem, making the
use of the water column criterion elements more appropriate to protect
the entire aquatic ecosystem. New inputs are defined as new
anthropogenic activities resulting in the release of selenium into a
lentic or lotic aquatic system.\16\ These ``new inputs'' are both new
and increased inputs of selenium and are referring to the release of a
substantial amount of additional selenium from either anthropogenic
point or nonpoint sources into a waterbody or watershed. 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) or de minimis inputs to a watershed or waterbody.\17\
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\16\ USEPA. 2021. 2021 Revision to: Aquatic Life Ambient Water
Quality Criterion for Selenium-Freshwater 2016. EPA 822-R-21-006.
U.S. Environmental Protection Agency, Office of Water, Washington,
DC. https://www.epa.gov/system/files/documents/2021-08/selenium-freshwater2016-2021-revision.pdf.
\17\ USEPA. 2024. Technical Support for Adopting and
Implementing the EPA's 2016 Selenium Criterion in Water Quality
Standards. EPA-820-R-24-001. U.S. Environmental Protection Agency,
Office of Water, Washington, DC. https://www.epa.gov/system/files/documents/2024-03/selenium-adopting-tsd.pdf.
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The water column criterion elements take precedence over the fish
tissue criterion elements and the bird egg tissue criterion element
until tissue data have returned to a steady-state condition after a new
input of selenium. In the interim, in systems with new inputs, the EPA
recommends California sample tissue and water and use site-specific
data to gain a better understanding of the selenium bioaccumulation
dynamics in a receiving water and to determine if and when steady-state
conditions have been reached.
California has flexibility to determine how to evaluate individual
and composite samples for each taxon. Tissue data provide instantaneous
point measurements that reflect integrative accumulation of selenium
over time and space in fish or birds at a given site. This final
selenium criterion provides California with flexibility in how the
State can interpret a discrete bird egg or fish tissue sample to
represent a given species' population at a site. Generally, fish and
bird egg tissue samples collected to calculate average tissue
concentrations (often in composites) for a species at a site are
collected during one sampling event, or over a short interval due to
logistical constraints and the cost for obtaining samples. The State
should clearly describe its decision-making process in its assessment
methodology.
NPDES Permitting
Under the CWA, WQS are used to derive WQBELs in NPDES permits for
point source discharges, thereby limiting the amount of pollutants that
may be discharged into a waterbody to attain and maintain its
designated uses. The EPA is promulgating the default water column
criterion element and the option for California to use the PBA to
translate tissue criterion elements into site-specific water column
criterion elements, which can be used to facilitate implementation,
e.g., NPDES permitting. However, these water column criterion elements
would not prevent California from also using the tissue criterion
elements for monitoring and regulating pollutant discharges where
appropriate.
As with assessments, all criterion elements are available for NPDES
permitting. When multiple data types are available for making
permitting decisions, the hierarchy of the criterion will determine
which data type will take precedence. In addition, as described above,
when selenium is increasing due to new inputs, footnote 4 of the
criterion specifies that the water column criterion elements must be
used when steady-state fish or bird tissue data are not available.
When implementing the selenium criterion under the NPDES permits
program, California may need to establish additional implementation
procedures due to the unique components of the selenium criterion.
Where California uses a water column criterion element only (as opposed
to using both the water column and fish tissue or bird tissue criterion
elements) for conducting reasonable potential determinations and
establishing WQBELs per 40 CFR 122.44(d), it may be appropriate for the
State to evaluate existing implementation procedures for other water
column aquatic life criteria. However, if California also decides to
use the selenium fish tissue criterion elements and bird tissue
criterion elements for NPDES permitting purposes, additional State WQS
implementation procedures 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 regulatory text incorporates one EPA document by reference,
specifically, the EPA's Method for Translating Selenium Tissue
Criterion Elements into Site-specific Water Column Criterion Elements
for California, Version 2, December 2024, discussed in section III.C of
this preamble. The EPA has made, and will continue to make, this
document available electronically at its website (https://www.epa.gov/wqs-tech/water-quality-standards-establishment-numeric-criterion-selenium-fresh-waters-california) and through www.regulations.gov at
the docket associated with this rulemaking.
IV. Endangered Species Act
Section 7(a)(2) of the ESA requires that each Federal agency ensure
that any action authorized, funded, or carried out by such agency is
not likely to jeopardize the continued existence of any endangered or
threatened species or result in the destruction or adverse modification
of critical habitat. For this rule, the EPA transmitted a Biological
Evaluation to NMFS and FWS on November 23, 2022.
On June 21, 2024, the EPA received a final Biological Opinion from
FWS that determined that the EPA's action is likely to adversely affect
but will not jeopardize the continued existence of bonytail, razorback
sucker, Santa Ana sucker, tidewater goby, unarmored threespine
stickleback, arroyo toad, California red-legged frog, foothill yellow-
legged frog, light-footed Ridgway's rail, Yuma Ridgway's rail, and
California least tern. FWS also concurred with the EPA that the action
may affect but is not likely to adversely affect the other Federally
listed species and designated critical habitats for all species that
were included in the consultation, including the longfin smelt for
which the FWS provided supplemental concurrence with the EPA on October
29, 2024, that the action may
[[Page 101924]]
affect but is not likely to adversely affect that species.\18\
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\18\ FWS proposed to list the San Francisco Bay-Delta distinct
population segment of longfin smelt as an endangered species on
October 7, 2022 (87 FR 60957) and finalized the rule on July 30,
2024 (89 FR 61029) with an effective date of August 29, 2024. The
San Francisco Bay-Delta distinct population segment of longfin smelt
had not been identified as part of the consultation in the EPA's
biological evaluation or the FWS's Biological Opinion that the EPA
received on June 21,2024, before the final rule was signed. As such,
the EPA worked with FWS to address this species listing prior to
signing the final rule.
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On August 28, 2024, the EPA received a final Biological Opinion
from NMFS that determined that the EPA's action is likely to adversely
affect but will not jeopardize the continued existence of Central
California Coast coho salmon, Southern Oregon/Northern California Coast
coho salmon, Southern California steelhead, Central Valley steelhead,
Northern California steelhead, Central California Coast steelhead,
South-Central California Coast steelhead, Sacramento River winter-run
Chinook salmon, Central Valley spring-run Chinook salmon, Central
California Coast Chinook salmon, the Southern distinct population
segment of North American green sturgeon, nor is the proposed action
likely to result in the destruction or adverse modification of critical
habitat for these species. NMFS also concurred with the EPA that the
action may affect but is not likely to adversely affect the other
Federally listed species and the designated critical habitat for the
other species that were included in the consultation.
The EPA's receipt of these final Biological Opinions and
concurrences from the Services concludes the consultation for this rule
under ESA section 7(a)(2). Documents associated with this ESA
consultation are available in the docket associated with this rule
(Docket ID: EPA-HQ-OW-2018-0056).
V. Applicability of the EPA-Promulgated Water Quality Standards
This final rule for a chronic selenium freshwater criterion applies
to certain waters of California in a manner consistent with the CTR
where the protection of aquatic life and aquatic-dependent wildlife are
designated uses, which includes the waters of the San Luis National
Wildlife Refuge and the Los Banos State Wildlife Refuge.
The final rule does not apply to California waters where site-
specific selenium criteria have been adopted, nor does it apply to
California waters where selenium criteria have been promulgated in the
NTR. In other words, this final rule does not apply to waters of the
San Francisco Bay upstream to and including Suisun Bay and the
Sacramento-San Joaquin Delta, the San Joaquin River from Sack Dam to
Vernalis, Mud Slough (north), Salt Slough, or constructed and
reconstructed water supply channels in the Grassland watershed listed
in Appendix 40 of the Central Valley Regional Water Quality Control
Board's Basin Plan because these waters have applicable selenium
criteria from the NTR and/or approved Central Valley Regional Water
Quality Control Board site-specific objectives.
Lastly, the final rule does not apply to surface waters that are
tributaries to the Salton Sea because California adopted, and EPA-
approved, site-specific water quality objectives for these waters.
As noted previously, this action adds clarifying language to the
regulatory provisions regarding applicability of the CTR based on the
salinity level of the waterbody in paragraphs (c)(3)(ii) and (iii) of
40 CFR 131.38. The added language is not intended to affect the
substance of those applicability provisions.
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 EPA-approved designated
(beneficial) uses for the waterbodies it oversees. The criterion will
become the applicable CWA-effective criterion for CWA implementation
purposes by each of the Regional Boards after the effective date of
this rule (i.e., 30 days after the date of publication of this rule in
the Federal Register).
VI. Conditions When Federal Standards Would Be Withdrawn
Under the CWA, Congress gave states the primary responsibility for
developing and adopting WQS for their waters (CWA section 303(a)
through (c)). Although the EPA is promulgating a selenium criterion for
the protection of aquatic life and aquatic-dependent wildlife for
certain waters of California, California continues to have the option
to adopt and submit to the EPA selenium criteria for the State's waters
consistent with CWA section 303(c) and the EPA's implementing
regulations at 40 CFR part 131.
If California adopts and submits selenium criteria for the
protection of aquatic and aquatic-dependent wildlife for California
(fresh water and/or salt water), the EPA will 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 EPA 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 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)).
VII. Alternative Regulatory Approaches
The EPA's 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 this selenium criterion.
Among other things, the EPA's regulation: (1) specifies how states and
authorized Tribes \19\ 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) specifies the requirements 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 of this preamble.
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\19\ For purposes of this rule, an Indian Tribe that obtains EPA
approval to administer a WQS program under CWA section 303(c) for
its reservation is referred to as an ``authorized Tribe.''
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Designated Uses
The EPA's action applies to certain waters of California where the
protection of aquatic life and aquatic-dependent wildlife are
designated uses. The regulation at 40 CFR 131.10 provides 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 waterbody or waterbody segment
affected by this rule and adopts the highest attainable use,\20\ the
State
[[Page 101925]]
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 were to find removal or
modification of the designated use and the adoption of the highest
attainable use and criteria to protect that use is consistent with CWA
section 303(c) and the implementing regulations at 40 CFR part 131, the
EPA would approve the revised WQS. The EPA would then undertake a
rulemaking to withdraw the corresponding Federally promulgated WQS for
the relevant water(s).
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\20\ If a state or authorized Tribe adopts a new or revised WQS
based on a 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)).
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Site-Specific Criteria
The regulation at 40 CFR 131.11 specifies 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 waterbody-specific basis that meets the
regulatory test of protecting the designated uses, being scientifically
defensible, and ensuring the protection and maintenance of downstream
WQS. In this context, as discussed in section III.C of this preamble,
SSC are different than a site-specific water column criterion element
developed through the PBA incorporated by reference in this final rule.
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 waterbody or portion of a waterbody.
Any such state-adopted SSC will need to be submitted to the EPA for
review and approval pursuant to CWA section 303(c) and the EPA's
implementing regulation at 40 CFR part 131.
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). The EPA's regulation at 40 CFR 131.3(o) defines 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 131.20(b)) 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
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. NPDES
permit limits can be written to comply with the WQS variance rather
than the underlying WQS for the specified 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 state or
authorized Tribe may adopt a subsequent WQS variance if adopted
consistent with 40 CFR 131.14.
Compliance Schedules
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. 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
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 a state or
authorized Tribe's permit compliance schedule authorizing provision as
a WQS pursuant to 40 CFR 131.15 ensures that any NPDES permit that
contains a compliance schedule meets the requirement that the level of
water quality to be achieved by 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 specify compliance schedules in NPDES
permits. In 2008, California adopted a statewide compliance schedule
authorizing provision that the EPA subsequently approved under CWA
section 303(c), the Policy for Compliance Schedules in National
Pollutant Discharge Elimination System Permits, State Water Resources
Control Board 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
compliance schedule authorizing provision will allow California, as the
permitting authority, to specify compliance schedules in permits, as
appropriate, for the purpose of achieving compliance with a WQBEL based
on the selenium criterion promulgated in this final rule, which is more
stringent than the existing criteria for California, as soon as
possible.
VIII. Economic Analysis
To best inform the public of the potential impacts of this rule,
the EPA evaluated the potential costs associated with State
implementation of the EPA's selenium criterion based on available
information. This analysis is documented in Economic Analysis for the
Final Selenium Water Quality Criterion for the State of California,
which can be found in the docket for this rule. For this analysis, the
EPA assumed that California fully implements its existing selenium
criteria (i.e., ``baseline criteria'') and estimated the incremental
impacts for compliance with the selenium criterion in this rule. To
facilitate this analysis, the EPA interpreted the criterion as the
default water column criterion element (i.e., a lentic and lotic value)
from the EPA's current CWA section 304(a) selenium criterion for fresh
water. For point source costs, the EPA assumed any NPDES-permitted
facility that
[[Page 101926]]
discharges selenium would have reasonable potential and would be
subject to effluent limits and would incur compliance costs if it chose
to continue discharging. The EPA also evaluated nonpoint sources that
contribute selenium loadings to waters that would be considered
impaired for selenium under the final criterion and evaluated whether
they would incur incremental costs for additional best management
practices. The total annualized cost of this final rule was estimated
to range from $28.34 million to $44.84 million at a 2% discount rate.
See Economic Analysis for the Final Selenium Water Quality Criterion
for the State of California for a detailed summary of the information
and assumptions the EPA relied on to estimate potential costs to
implement the final rule.
IX. Statutory and Executive Orders
A. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 14094 (Modernizing Regulatory Review)
This action is not a significant regulatory action as defined in
Executive Order 12866, as amended by Executive Order 14094, and was
therefore not subject to a requirement for Executive Order 12866
review.
B. Paperwork Reduction Act (PRA)
This action does not impose any new information-collection burden
under the PRA. This action does not directly contain any information
collection, reporting, or record-keeping requirements. The Office of
Management and Budget (OMB) has previously approved the information
collection requirements contained in the existing regulations at 40 CFR
part 131 and has assigned OMB control number 2040-0049.
C. 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) \21\ and the EPA's implementing
regulations at 40 CFR 122.44(d)(1) introductory text and (d)(1)(i)
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 the regulation 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.''
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\21\ 301(b), Timetable for achievement of objectives: In order
to carry out the objective of the chapter there shall be achieved
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 the title) or any other Federal law or regulation, or required to
implement any applicable water quality standard established pursuant
to the chapter.
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As a result of this action, the State of California must ensure
that NPDES permits it issues include any limitations on discharges
necessary to comply with the WQS established in the final rule. 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.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or Tribal governments or the private sector.
E. Executive Order 13132 (Federalism)
This action does not have federalism implications. The EPA
believes, however, that this action may be of significant interest to
state governments. Consistent with the EPA's policy to promote
communications between the EPA and state and local governments, the EPA
consulted with California early in the process of developing this
rulemaking to provide the State with an opportunity to provide
meaningful and timely input.
On several occasions starting in February 2018, the EPA discussed
the development of this rule with the California State Water Resources
Control Board and several Regional Water Quality Control Boards. Early
in this process, the EPA clarified that if and when the State decides
to develop and establish its own selenium standards, the EPA would
assist the State in its process. During these discussions, the EPA also
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 EPA received on the derivation of the
criterion; the EPA's consideration of those comments and responses;
possible alternatives for criteria or a criterion matrix; the
assumptions and data being used in the economic analysis associated
with the rule; and the overall timing of the Federal rulemaking effort.
The EPA took these discussions with the State into account during the
drafting of this final rule.
F. Executive Order 13175 (Consultation and Coordination With Indian
Tribal Governments)
This action does not have Tribal implications as specified in
Executive Order 13175. This 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, during the development of this action, the EPA
offered Tribal leaders of potentially affected Tribes in California
government-to-government consultation on the proposed selenium
rulemaking. The Torres Martinez Desert Cahuilla Indian Tribe responded,
with questions and concerns about selenium monitoring in the
tributaries to the Salton Sea. The tributaries to the Salton Sea have
State-adopted and EPA-approved site-specific water quality criteria
(objectives) in place that are not affected by this rule.
G. 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
[[Page 101927]]
the definition of ``covered regulatory action'' in section 2-202 of the
Executive order. Therefore, this action is not subject to Executive
Order 13045 because it does not concern an environmental health risk or
safety risk. This rule relates to protection of aquatic life and
aquatic-dependent wildlife. Since this action does not concern human
health, the EPA's Policy on Children's Health also does not apply.
H. 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. This action impacts water quality
standards, which do not regulate the supply, distribution, or use of
energy.
I. National Technology Transfer and Advancement Act of 1995
This rule does not involve technical standards.
J. Executive Order 12898 (Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations) and
Executive Order 14096 (Revitalizing Our Nation's Commitment to
Environmental Justice for All)
The EPA believes that the human health and environmental conditions
that exist prior to this action do not result in disproportionate and
adverse effects on communities with environmental justice concerns. In
the EPA's Economic Analysis for the Final Selenium Water Quality
Criterion for the State of California (economic analysis document),
which can be found in the docket for this rule, Exhibit 5-2 illustrates
the geographic distribution of waters where available data indicate
elevated levels of selenium. These waters are located throughout the
State. An analysis of proximity to minority and low-income populations
might or might not reveal patterns of association that differ from
waters that are not impaired. However, making definitive connections
between waters monitored for water quality and the effects of selenium
from the use of these resources would likely depend on many other local
factors, such as accessibility to and availability of alternative water
sources.
The EPA believes that this action is not likely to result in new
disproportionate and adverse effects on communities with environmental
justice concerns. The freshwater criterion for selenium in California
does not address human health impacts, and only applies to aquatic life
and aquatic-dependent wildlife uses. This rule will support the health
and abundance of aquatic life and aquatic-dependent wildlife in
California and will, therefore, not only benefit those species but also
benefit all communities that rely on or use these ecosystems. The EPA
finds that, as compared to higher-income populations, low-income
populations tend to rely more on fishing as a food source,\22\ and
therefore, this rule may benefit low-income communities. This and other
EPA actions with goals of protecting fishing resources are a high
priority for the EPA. The potential benefits associated with this final
rule are also addressed in the economic analysis document.
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\22\ Von Stackelberg, K., et al. (2017). Results of a national
survey of high-frequency fish consumers in the United States.
Environmental Research 158, 126-136. https://bgc.seas.harvard.edu/assets/vonstackelberg2017.pdf.
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To achieve the benefits associated with a final rule, the EPA
recognizes that some facilities may need to add pollution control
measures and incur additional compliance costs over time to meet any
WQBELs needed to achieve the promulgated selenium criterion. The EPA
used the California Communities Environmental Health Screening Tool:
CalEnviroScreen 4.0 tool developed by California Office of
Environmental Health Hazard Assessment and determined that none of the
facilities identified in the EPA's Economic Analysis for the Final
Selenium Water Quality Criterion for the State of California that would
incur additional annual costs, are located in communities with elevated
environmental justice concerns. This is one line of evidence that these
communities would not bear a disproportionate share of the burden with
promulgation of this rule. To further explore the anticipated impacts,
the EPA analyzed two facilities identified in the EPA's economic
analysis that may incur additional compliance costs over time to meet
any WQBELs needed to achieve the promulgated selenium criterion. For
illustrative purposes, the EPA first analyzed the Michelson Water
Reclamation Plant (WRP), which serves an area located in parts of
Orange County. Using CalEnviroScreen 4.0, the EPA examined education
level, poverty level, and unemployment level within the service area.
Some areas showed low environmental justice concerns (high education,
low poverty, and low unemployment), whereas other areas in the county
had slightly higher environmental justice concerns (moderate education
levels, poverty, and unemployment). There did not appear to be a clear
pattern of disproportionate impacts to specific communities. As
presented in the economic analysis document, the EPA estimates that
pollution control upgrades to the Michelson WRP could potentially
result in a total cost of $4,856,000. The population served by
Michelson WRP is 331,500 people, which would result in a per-person
increased cost of $14.65 per year. The average household size in Orange
County (the area served by Michaelson WRP) is 3.01 \23\ people per
household, resulting in an estimated additional average household cost
of $44.09 per year, or $3.67 per month. This potentially modest
increase in monthly sewerage bill of $3.67 per household per month
appears unlikely to disproportionally impact low-income populations,
populations with low education levels, and/or communities with low
employment rates.
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\23\ https://www.census.gov/quickfacts/orangecountycalifornia.
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The second facility that the EPA has included in this analysis for
illustrative purposes may incur annual costs due to implementing
pollution control upgrades is the Auburn Wastewater Treatment Plant
(WWTP). The Auburn WWTP serves 13,800 people in the city of Auburn in
Placer County. Using the CalEnviroScreen 4.0 tool, the EPA examined
education level, poverty level, and unemployment level within the
service area. Auburn showed relatively high education levels, moderate
poverty levels, and moderate unemployment levels. There did not appear
to be a clear pattern of disproportionate impacts to specific
communities. As presented in the economic analysis document, the EPA
estimates that pollution control upgrades to the Auburn WWTP could
potentially result in a total cost of $491,000. The population served
by the Auburn WWTP is 13,800 people, which would result in a per-person
increased cost of $35.58 per year. The average household size in Auburn
is 2.15 \24\ people per household, resulting in an estimated additional
average household cost of $76.50 per year, or $6.37 per month. This
potentially modest increase in monthly sewerage bill of $6.37 per
household per month appears unlikely to disproportionally impact low-
income populations, populations with low education levels, and/or
communities with low employment rates.
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\24\ https://www.census.gov/quickfacts/auburncitycalifornia.
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These examples show that while these communities only have moderate
environmental justice concerns
[[Page 101928]]
(according to CalEnviroScreen), the low-income portions of these
communities would not incur a significant burden as a result of this
final rule. Overall, the EPA anticipates that the abovementioned
benefits will ultimately outweigh these potential pass-through sewerage
costs and that this rule will help address any environmental justice
concerns by benefitting aquatic species and the communities that may
rely on or use them.
In addition to Executive Order 12898, and in accordance with Title
VI of the Civil Rights Act of 1964, each Federal agency shall ensure
that all programs or activities receiving Federal financial assistance
that affect human health or the environment do not directly, or through
contractual or other arrangements, use criteria, methods, or practices
that discriminate on the basis of race, color, or national origin. With
that directive in mind, in August 2011 the Environmental Justice
Interagency Working Group established a Title VI Committee to address
the intersection of agencies' environmental justice efforts with their
Title VI enforcement and compliance responsibilities. While the EPA
only has an oversight role for CWA implementation, if California
receives Federal funds for CWA implementation, the State is legally
prohibited from discriminating on the basis of race, color, or national
origin under Title VI when engaging in CWA implementation activities.
Additionally, and in compliance with Executive Order 12898, the EPA
expects that California will consider disproportionately high and
adverse human health and environmental effects on minority and low-
income populations when implementing this rulemaking under the CWA.
The information supporting this Executive Order review is contained
in the EPA's Economic Analysis for the Final Selenium Water Quality
Criterion for the State of California, the California Communities
Environmental Health Screening Tool: CalEnviroScreen 4.0 tool developed
by California Office of Environmental Health Hazard Assessment, and the
2022 United States census data for Orange County, California and
Auburn, California.
K. Congressional Review Act (CRA)
This action is subject to the CRA, and the EPA will submit a rule
report to each House of Congress and to the Comptroller General of the
United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).
List of Subjects in 40 CFR Part 131
Environmental protection, Incorporation by reference, Indians-
lands, Intergovernmental relations, Reporting and recordkeeping
requirements, Water pollution control.
Michael S. Regan,
Administrator.
For the reasons set forth in the preamble, the EPA amends 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 adding a heading for paragraph (b) and
revising paragraphs (b)(1) and (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) Criteria. (1) Criteria for priority toxic pollutants in the
State of California as described in table 1 to this paragraph (b)(1):
Table 1 to Paragraph (b)(1)
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[GRAPHIC] [TIFF OMITTED] TR17DE24.111
(i) California Freshwater Selenium Ambient Chronic Water Quality
Criterion for Protection of Aquatic Life and Aquatic-Dependent
Wildlife.
Table 2 to Paragraph (b)(1)(i)
[[Page 101937]]
[GRAPHIC] [TIFF OMITTED] TR17DE24.067
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(ii) Priority toxic pollutants. Table 1 to 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 criteria guidance under CWA section 304(a). 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. The EPA has added the Chemical Abstracts Service (CAS) registry
numbers, which provide a unique identification for each chemical.
(iii) Criteria recommendations not included in table 1 to this
paragraph (b)(1). The following chemicals have organoleptic-based
criteria recommendations that are not included
[[Page 101938]]
in table 1: zinc, 3-methyl-4-chlorophenol.
(iv) Freshwater and saltwater aquatic life criteria. 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 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. 2024-29483 Filed 12-16-24; 8:45 am]
BILLING CODE 6560-50-P