EPA's Vessel General Permit and Small Vessel General

the original estimates (USEPA 2012a).
It is worth noting that while EPA considers their original loading estimates to be unrealistically
high they, nevertheless, concluded that risks to listed species from these high selenium
discharges would be “negligible” (for anadromous salmonids/sturgeons and marine mammals) or
“remote” (for all other taxa) (EPA BE Table 5-42). These conclusions were based on risk
quotients which ranged from 0.002 to 0.136 for surrogate animal taxa. In addition, to account for
any possible (although unexpected) difference in sensitivity between a listed species and its
surrogate, EPA opted to apply its recently published safety adjustment factor of 2.0 (Mayer et al.
2008) to the Agency’s criterion continuous concentration (i.e. chronic criterion) to further
evaluate risk to listed species. Risk quotients using the safety adjustment factor approach were
0.06 for saltwater and 0.1 for freshwater (EPA BE Table 5-56). Considering the relative
magnitude of these predicted loadings (based on original estimates) compared to known
anthropogenic sources of selenium, such as described above for the San Francisco Bay-Delta, it
is unwarranted that EPA’s methodology predicted that risks to listed species would so low.
As we analyzed the potential effects, on listed species, of selenium-containing vessel discharges
we became aware of information regarding the chemical/biological dynamics of selenium in
aquatic environments and effects to aquatic and aquatic-dependent species that did not appear to
be considered by EPA in their risk assessment. Much of this information was produced as the
outcome of prior consultations with EPA on water quality criteria for selenium in California.
The following excerpt from a 2010 USGS report by Presser and Luoma describes the history and
context for the derivation of selenium criteria intended to protect listed fish and wildlife species
in California which, we believe, will help inform the risk assessment for the VGPs:
“Adjustments to the development of Se criteria specifically for California were called for
by 1) the USEPA through the National Toxics Rule (NTR) and the California Toxics
Rule (CTR) (USEPA, 1992; 2000); and 2) the USFWS and National Marine Fisheries
Service (NMFS) through their Biological Opinion (USFWS and NMFS, 1998 and
amended, 2000). In general, these adjustments were necessary to consider 1) the
bioaccumulative nature of Se in aquatic systems; 2) Se’s long-term persistence in aquatic
sediments and food webs; 3) the importance of dietary pathways in determining toxicity;
and 4) protection of threatened and endangered species.” (Presser and Luoma 2010b)
Specifically, pursuant to section 7(a) of the U.S. Endangered Species Act (ESA) (1973), EPA
consulted with the USFWS and NMFS concerning EPA’s rulemaking action for California.
They submitted a Biological Evaluation for their review as part of the consultation process in
1994. This evaluation found that the proposed CTR was not likely to jeopardize the continued
existence of any federally listed species or result in the destruction or adverse modification of
designated critical habitat. In April of 1998, the Services sent EPA a draft Biological Opinion
that found that EPA’s proposed rule would jeopardize federally listed species. After discussions
with the USFWS and NMFS, the EPA agreed to several changes in the final rule and USFWS
and NMFS, in turn, issued a final Biological Opinion finding that EPA’s action would not likely
jeopardize the continued existence of federally-listed species. The agencies agreed that federally-
listed fish and wildlife species that are aquatic system foragers would be protected under future
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