Protecting Public Health and the Environment.

Water Quality: Docket No. 58-0102-1701 - Proposed Rule

Rulemaking initiated to update selenium criteria for aquatic life.

Public Comment Opportunities | Negotiated Rulemaking History

Status of Rulemaking

Proposed rule open for public comment September 6 through October 6, 2017.

November 2017 Board of Environmental Quality Meeting

Rulemaking Documents Required by Idaho Administrative Procedure Act

Documents Referenced in Rule

Overview

This rulemaking has been initiated to update the selenium criteria for aquatic life use. This proposed update is identified as a Reasonable and Prudent Alternative (RPA) in the National Oceanic and Atmospheric Administration’s (NOAA) biological opinion (BiOp) on Idaho’s criteria for toxic substances to support aquatic life. This BiOp concluded that the current selenium criterion was likely to adversely affect endangered species and would result in adverse modification of critical habitat. The NOAA recommendation is to use EPA’s 2016 304(a) selenium criterion based on fish-tissue concentrations. NOAA has called for state adoption and EPA approval or EPA promulgation of this criterion by May 2018. In order to avoid EPA promulgating a federal selenium standard for Idaho, DEQ initiated this rulemaking for a revised selenium aquatic life criterion in Idaho’s water quality standards. DEQ’s 2014 triennial review identified revision of the aquatic life criteria for selenium as a medium priority.

Although selenium may cause acute toxicity at high concentrations, the most detrimental effect on aquatic organisms is due to its bioaccumulative properties. Aquatic organisms exposed to selenium accumulate it primarily through their diets and not directly through water. In fish, selenium toxicity occurs primarily through transfer to the eggs, reducing reproductive success and survival. Current criteria derived from water column concentrations do not take into account the effects of selenium bioaccumulation in aquatic systems and are generally under-protective of aquatic life. The proposed criterion is derived from the allowable concentration of selenium in fish tissue found to be protective of aquatic life. The fish-tissue concentration, in conjunction with site-specific bioaccumulation factors, can be used to determine the allowable concentration of selenium in ambient water. Aquatic communities are expected to be protected by this chronic criterion from any potential acute effects of selenium. By adopting the fish-tissue-derived criterion, DEQ will ensure that its criterion neither unnecessarily burdens dischargers nor increases risk to aquatic life.

This proposed rule replaces the existing water column-based criteria for selenium with a four-part criterion. The recommended elements are (1) a fish egg-ovary element, (2) a fish whole-body and/or muscle element, (3) a water column element which includes one value for lentic (still water) and one value for lotic (running water) aquatic systems, and (4) a water column intermittent element to account for potential chronic effects from short-term exposures (one value for lentic and one value for lotic aquatic systems).

This proposed rule also includes the addition of Section 287, Site-Specific Aquatic Life Criteria for Selenium. Subsections 287.01 through 287.04 were negotiated in response to proposals for site-specific selenium criteria submitted by Nu-West Industries, Inc., and J.R. Simplot Company. Subsections 287.01 and 287.02 set out site-specific selenium criteria for Upper Blackfoot River and Georgetown Creek Watersheds. Subsections 287.03 and 287.04 set out the site-specific selenium criteria for Hoopes Spring, Sage Creek, and Crow Creek near the Smoky Canyon Mine. The negotiated rulemaking also included site-specific selenium criteria for portions of Idaho (Subsection 287.05). This proposed rule applies to a site defined as all waters of the state except the main stems of the Kootenai, Salmon, and Snake Rivers within the historic range of white sturgeon, as well as subbasins flowing directly into the aforementioned rivers and those designated as critical salmonid habitat or bull trout habitat. Information regarding the site-specific selenium criteria includes (1) Nu-West Industries’ Proposal for Site-Specific Selenium Criteria: Upper Blackfoot River and Georgetown Creek Watersheds; (2) J.R. Simplot Company’s Proposed Site-Specific Selenium Criterion for Hoopes Spring, Sage Creek, and Crow Creek near the Smoky Canyon Mine; and (3) DEQ’s Justification for Site-Specific Selenium Criterion for Aquatic Life in Portions of Idaho. These documents are available on this webpage.

Idahoans that recreate in, drink from, or fish Idaho’s surface waters and all who discharge pollutants to those same waters may be interested in commenting on this proposed rule. After consideration of public comments, DEQ intends to present the final proposal to the Idaho Board of Environmental Quality on November 16, 2017, for adoption of a pending rule. The rule is expected to become final and effective upon the conclusion of the 2018 legislative session if adopted by the Board and approved by the Legislature.

Nu-West Industries, Inc., and J.R. Simplot Company Proposals for Site-Specific Selenium Criteria

Proposals for Site-Specific Criteria Date Posted Date of Meeting Discussion Written Comment Deadline

Nu-West Industries, Inc.

Nu-West Industries, Inc. Proposal for Site-Specific Selenium Criteria: Upper Blackfoot River and Georgetown Creek Watersheds, July 2017

Nu-West Industries’ Proposal for Site-Specific Selenium Criteria has been revised in response to input received from various stakeholders participating in the negotiated rulemaking process. This updated July 2017 version replaces the June 2017 version that was posted on June 23, 2017.

Revised Nu-West Proposal for Site-Specific Selenium Criteria - PowerPoint Presentation, July 2017

07/21/17

 

 

 

 

 

 

 

 

 

 

 

07/25/17

07/25/17 08/01/17

Nu-West Industries, Inc. Proposal for Site-Specific Selenium Criteria: Upper Blackfoot River and Georgetown Creek Watersheds, June 2017

Nu-West Industries’ Proposal for Site-Specific Selenium Criteria has been revised to incorporate brown trout in Georgetown Creek. The key revisions are found in Table 2 on page 4 (listing brown trout as resident in Georgetown Creek) and Table 3 on page 5 (listing the brown trout specific egg/ovary value for Georgetown Creek). This updated June 2017 version replaces the April 2017 version that was posted on April 27, 2017.

06/23/17   06/23/17

Nu-West Industries, Inc. Proposal for Site-Specific Selenium Criteria: Upper Blackfoot River and Georgetown Creek Watersheds, April 2017

Nu-West Proposal for Site-Specific Selenium Criteria -PowerPoint Presentation, June 2017

04/27/17

 

 

 

 

06/14/17

06/13/17 06/23/17

J.R. Simplot Company

Revised J.R. Simplot Company Proposed Site-Specific Selenium Criterion for Hoopes Spring, Sage Creek, and Crow Creek near the Smoky Canyon Mine, August 2017

J.R. Simplot Company’s Draft Proposed Site-Specific Selenium Criterion has been revised in response to input received from various stakeholders participating in the negotiated rulemaking process. This updated August 2017 version replaces the April 2017 version that was posted on April 27, 2017.

09/05/17

N/A

N/A
Comments on Proposal for a Site-Specific Selenium Criterion in SE Idaho: Smoky Canyon Mine, Caribou County, Idaho – J.R. Simplot Company PowerPoint Presentation, July 2017

07/25/17

07/25/17

08/01/17

J.R. Simplot Company Draft Proposal for Site-Specific Selenium Criterion for Hoopes Spring, Sage Creek, and Crow Creek near the Smoky Canyon Mine, April 2017

J.R. Simplot Company Proposal for a Site-Specific Selenium Criterion in Southeast Idaho: Smoky Canyon Mine, Caribou County, Idaho - PowerPoint Presentation, June 2017

04/27/17

 

 

 

 

 

 

06/14/17

06/13/17

06/23/17

Written Public Comments

Submitted by Date Received
J.R. Simplot Company 08/01/17
Wyoming Department of Environmental Quality 08/01/17
EPA Region 10 07/19/17

Effective for Clean Water Act Purposes

Water quality standards adopted and submitted to EPA since May 30, 2000, are not effective for federal Clean Water Act (CWA) purposes until EPA approves them (see 40 CFR 131.21). This is known as the Alaska Rule. This rulemaking will be promulgated so that the existing rule, which continues to be effective for CWA purposes, remains in the Idaho Administrative Code until EPA approves the rule revisions. Notations explaining the effectiveness of the rule sections are also included. Upon EPA approval, the revised rule will become effective for CWA purposes and the previous rule and notations will be deleted from the Idaho Administrative Code. Information regarding the status of EPA review will be posted here.

Public Comment Opportunities

Submit all written comments by mail, fax or email to:

Paula Wilson
Idaho Department of Environmental Quality
1410 N. Hilton, Boise, ID 83706
Fax: (208) 373-0481, paula.wilson@deq.idaho.gov

Comment Deadline

October 6, 2017

Public Hearing

Pursuant to Section 67-5222(2), Idaho Code, a public hearing will be held if requested in writing by twenty-five (25) persons, a political subdivision, or an agency. Written requests for a hearing must be received by the undersigned on or before September 22, 2017. If no such written request is received, a public hearing pursuant to Section 67-5222(2), Idaho Code, will not be held. The public will have the opportunity to provide oral comments on the proposed rule during the November 16, 2017, meeting of the Board.

Written Public Comments

Submitted by Date Received
Idaho Department of Fish and Game, Pocatello 09/27/17
Idaho Mining Association 10/05/17
Wyoming Department of Environmental Quality 10/06/17
Kinross DeLamar Mining Company 10/06/17
EPA Region 10 10/06/17
J.R. Simplot Company 10/06/17

Negotiated Rulemaking History

The text of the proposed rule was drafted based on discussions held and concerns raised during negotiations conducted pursuant to Idaho Code § 67-5220 and IDAPA 58.01.23.810-815. The Notice of Negotiated Rulemaking was published in the April 2017 issue of the Idaho Administrative Bulletin, and a preliminary draft rule was made available for public review. Meetings were held on April 27, June 13, and July 25, 2017. Key information was posted on the DEQ rulemaking web page and distributed to the public. Members of the public participated in the negotiated rulemaking process by attending the meetings and submitting written comments.

All comments received during the negotiated rulemaking process were considered by DEQ when making decisions regarding development of the rule. For comments that were not incorporated into the draft rule, DEQ’s response to those comments is included in the negotiated rulemaking summary. At the conclusion of the negotiated rulemaking process, DEQ formatted the final draft for publication as a proposed rule. DEQ is now seeking public comment on the proposed rule. The negotiated rulemaking record, which includes the negotiated rule drafts, written public comments, documents distributed during the negotiated rulemaking process, and the negotiated rulemaking summary, is available on this webpage.

Negotiated Rulemaking Meeting Schedule

No additional meetings are scheduled.

Previous Meetings

July 25, 2017 - Agenda | Sign-in Sheets
June 13, 2017 -
Agenda| Sign-in Sheets
April 27, 2017
- Agenda| Sign-in Sheets

Draft Negotiated Rule and Related Documents

Draft Negotiated Rule Date Posted Date of Meeting Discussion Written Comment Deadline

Draft No. 4

09/05/17

N/A

The comment period for this negotiated rulemaking has concluded. The comment period on the proposed rule will commence upon publication of the proposed rule in the September 6, 2017, issue of the Idaho Administrative Bulletin.

Draft No. 3

Aquatic Life Criterion for Selenium Negotiated Rulemaking – DEQ PowerPoint Presentation (July 2017)

07/21/17

 

07/25/17

07/25/17 08/01/17

Draft No. 2

Aquatic Life Ambient Water Quality Criterion for Selenium – Freshwater, EPA-822-R-16-006, Appendix K: Translation of a Selenium Fish Tissue Criterion Element to a Site-Specific Water Column Value (June 2016)

Aquatic Life Criterion for Selenium Negotiated Rulemaking – DEQ PowerPoint Presentation (June 2017)

06/09/17

 

 

 

 

 

 

 

06/14/17

06/13/17 06/23/17

Preliminary Draft (Draft No. 1)

Aquatic Life Criterion for Selenium: Preliminary Draft Negotiated Rule – DEQ PowerPoint Presentation (April 2017)

03/27/17

 

04/27/17

04/27/17

05/05/17

Written Public Comments

Comment Submitted by Date Received
Comment on Draft No. 3 U.S Fish and Wildlife Service, Eastern Idaho Field Office 07/31/17
Comment on Draft No. 3 J.R. Simplot Company 08/01/17
Comment on Draft No. 3 Wyoming Department of Environmental Quality 08/01/17
Comment on Draft No. 3 National Marine Fisheries Service (NMFS) 08/02/17
Comment on Draft No. 2 EPA Region 10 07/19/17
Comment on Draft No. 2 Idaho Mining Association (IMA) 06/23/17
Comment on Draft No. 2 Idaho Conservation League (ICL) 06/23/17
Comment on Draft No. 2 J.R. Simplot Company 06/26/17
Comment on Draft No. 1 Bureau of Land Management (BLM) 05/02/17
Comment on Draft No. 1 J.R. Simplot Company 05/05/17
Comment on Draft No. 1 Nu-West Industries, Inc. 05/05/17
Comment on Draft No. 1 Idaho Conservation League (ICL) 05/05/17
Comment on Draft No. 1 EPA Region 10 06/06/17

Documents Distributed for Negotiated Rulemaking

Meeting Presentations and Miscellaneous Documents Date Posted
Rulemaking Schedule 03/27/17

Page Subscription

Staff Contacts

Water Quality Standards Scientist
Stephanie Jenkins
DEQ State Office
1410 N. Hilton
Boise, ID 83706
(208) 373-0407
stephanie.jenkins@deq.idaho.gov

Administrative Rules Coordinator
Paula Wilson
DEQ State Office
Attorney General's Office
1410 N. Hilton
Boise, ID 83706
(208) 373-0418
paula.wilson@deq.idaho.gov