Revocation of the Selenium Criterion Maximum Concentration for the Final Water Quality Guidance for the Great Lakes System

In March 1995, EPA promulgated acute and chronic aquatic life criteria for selenium as part of the Final Water Quality Guidance for the Great Lakes System (40 CFR part 132). In 1996 the U.S. Court of Appeals for the District of Columbia Circuit issued an order vacating the acute criterion for selenium. AISI v. EPA, 115 F. 3d 979 (1997) (order dated September 10, 1996). EPA did not immediately publish a notice removing the vacated acute criterion from the Code of Federal Regulations because it anticipated promulgating a new acute criterion within one year. Although EPA proposed a new criterion in November 1996, it has not yet promulgated a final criterion. Based on comments received on the proposal, as well as earlier comments EPA had received on the methodology used to develop the national selenium criteria, EPA decided to subject the selenium criteria methodology to a broader workgroup and peer review process. While the selenium workgroup and peer reviewers have made good progress they are still months away from making final recommendations on the acute criterion for selenium. In the meantime, to avoid potential confusion about the status of the vacated acute criterion, EPA has decided to remove it from the final Great Lakes Guidance in 40 CFR part 132. EPA plans to propose a new replacement acute criterion once the workgroup and peer review process is complete. In the interim, EPA is recommending that States and Tribes rely on the chronic aquatic life criterion for selenium in setting permit limits. Today's action will not affect that chronic aquatic life criterion.