[Federal Register Volume 59, Number 200 (Tuesday, October 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-25746]


[[Page Unknown]]

[Federal Register: October 18, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131

[OW-FRL-5091-8]

 

Proposed Federal Water Quality Standards for Surface Waters of 
the United States in New Mexico

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Proposed rulemaking.

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SUMMARY: The Environmental Protection Agency is proposing a federal 
regulation that would supersede an EPA disapproved provision in New 
Mexico's water quality standards to ensure that the State's water 
quality standards are implemented in a manner that is consistent with 
the requirements of the Clean Water Act and its implementing 
regulations. EPA solicits written comments on this proposal.

DATES: Written comments on this proposal must be submitted on or before 
the close of business on December 2, 1994. In addition, oral and/or 
written comments may be submitted at a public hearing on November 22, 
1994 at 7 p.m.

ADDRESSES: Written comments should be submitted to: Myron O. Knudson, 
P.E., Director, Water Management Division, EPA Region 6, 1445 Ross 
Avenue, Dallas, Texas 75202. The public hearing will be held at the 
State Capitol Building, Old Santa Fe Trail and Paseo de Paralta, Santa 
Fe, New Mexico.

FOR FURTHER INFORMATION CONTACT: Russell Nelson (6W-QT), EPA Region 6, 
1445 Ross Avenue, Dallas, Texas 75202, Phone: (214) 665-6646.

SUPPLEMENTARY INFORMATION:

A. Legal Authority

    Under section 303(c) (33 U.S.C. 1313(c)) of the Clean Water Act 
(CWA), States are required to develop water quality standards for the 
surface waters of the State. At a minimum, water quality standards 
consist of beneficial use designations, numeric or narrative water 
quality criteria that support those designated uses, and an 
antidegradation policy that protects existing water quality. States are 
required to review, and if appropriate, revise their water quality 
standards at least once every three years. States are required to 
submit the results of their review of water quality standards to EPA 
for review and approval or disapproval.
    Whenever a State reviews its water quality standards or revises or 
adopts new standards, CWA section 303(c)(2)(B) requires States to adopt 
numeric criteria for all CWA section 307(a) priority toxic pollutants 
for which criteria guidance has been published under CWA section 
304(a), the discharge or presence of which in the affected waters could 
reasonably be expected to interfere with designated uses adopted by the 
State. The criteria must be specific numerical limitations for priority 
toxic pollutants. If numerical criteria are not available, the CWA 
requires the State to adopt criteria based on biological assessment or 
monitoring methods.
    The State may, at its discretion, include policies affecting the 
application and implementation of mixing zones, low flows and variances 
(40 CFR 131.13). These discretionary policies are subject to EPA review 
and approval and, therefore, must also be submitted to EPA pursuant to 
40 CFR 131.6(f).
    Section 303(c)(4) of the CWA (33 U.S.C. 1313(c)(4)) authorizes the 
EPA Administrator to promulgate water quality standards that supersede 
disapproved State water quality standards, or in any case where the 
Administrator determines that a new or revised water quality standard 
is needed to meet the requirements of the CWA.

B. Background

1. Basis for Disapproval of the New Mexico Standards

    In the National Toxics Rule (NTR) (see 57 FR 60848, December 22, 
1992, codified at 40 CFR 131.36.), EPA promulgated numeric criteria for 
priority toxic pollutants for those 14 States that had failed to adopt 
such criteria on their own as required by CWA section 303(c)(2)(B). At 
the time of proposal of the NTR, New Mexico was determined to be in 
compliance with the toxics provisions of the CWA. However, on October 
8, 1991, New Mexico adopted revisions to its water quality standards 
that affected its compliance status.
    In accordance with the provisions of section 303(c) of the Act and 
the Federal Water Quality Standards Regulation (40 CFR 131), Part 1-
105.E.4 of the New Mexico water quality standards was disapproved on 
January 13, 1992. This regulatory section was determined to be 
inconsistent with requirements set forth under section 303(c)(2)(B) of 
the Act. In the NTR, EPA noted it's disapproval action for New Mexico, 
and the potential for a separate rulemaking if the State did not adopt 
acceptable water quality standards (57 FR 60848 @ page 60856, Note (2) 
to Table 1).
    Following disapproval of the New Mexico standards, EPA and State 
staff discussed the modifications that were required to bring New 
Mexico into compliance with section 303(c)(2)(B) of the CWA. It was 
EPA's judgment that the New Mexico Environment Department was 
attempting to appropriately revise its water quality standards through 
the State's administrative procedures which includes final adoption by 
the New Mexico Water Quality Control Commission (WQCC). As a result of 
that effort, EPA allowed adequate time for the State to make 
appropriate modifications to its water quality standards. With its 
January 12, 1993 letter, EPA outlined the specific actions necessary 
for New Mexico to take in order to revise the deficiency in its water 
quality standards.

2. New Mexico's Response

    In a February 25, 1993 letter to EPA, New Mexico committed to 
correcting the deficiency in its standards by removing the disapproved 
language. The State formally proposed deletion of the disapproved 
language from its water quality standards and held hearings on its 
proposal on October 13-15, 1993, and on January 12, 1994. To date, 
however, the State has not taken final action on the proposal and has 
thus failed to correct the disapproved standards.

3. Why New Mexico's Water Quality Standards Are Inadequate

    The Water Quality Standards Regulation allows for application and 
implementation of general discretionary policies in State water quality 
standards, including provisions for mixing zones (40 CFR 131.13). 
Section 1-105.E.4 of the New Mexico standards provides a specific 
limitation for a general mixing zone policy that requires mixing zones 
to be free from substances in concentrations that are acutely toxic to 
aquatic organisms. The current State provision also allows a ``no-acute 
toxicity'' provision to be determined by the performance of 
biomonitoring procedures or by demonstration of compliance with acute 
numeric water quality criteria. Determining compliance in this manner 
essentially allows acute numerical criteria to be superseded by 
biomonitoring.
    For EPA to approve New Mexico's mixing zone policy, the policy must 
protect against acute toxicity. Therefore, the policy must ensure that 
the numeric criteria adopted pursuant to section 303(c)(2)(B) of the 
CWA are not exceeded in the mixing zone. Biomonitoring cannot supersede 
the State's acute numeric criteria for cadmium, chlordane, chromium, 
copper, cyanide, lead, mercury, nickel, selenium, silver, and zinc.
    EPA's Water Quality Standards Regulation provides that in 
establishing criteria for toxic pollutants, States ``should * * * 
establish narrative criteria or criteria based upon biomonitoring 
methods where numerical criteria cannot be established or to supplement 
numerical criteria,'' (40 CFR 131.11.(b)(2)). Clearly, narrative 
criteria and criteria based on biomonitoring are to supplement 
numerical criteria, not supersede them. Section 1-105.E.4 then, does 
not comply with this requirement, thus resulting in this provision 
being disapproved by EPA.

C. Description of the Proposed Rule

    Today's proposed rule would supersede Section 1-105.E.4. of the New 
Mexico water quality standards, and would establish a Federal 
regulation which will ensure the application of acute numeric criteria. 
The proposed rule would not allow the use of biomonitoring provisions 
in lieu of, or as a surrogate for, chemical specific limits for 
pollutants for which the State has numeric criteria in determining and 
preventing acutely toxic conditions within mixing zones.
    The proposed rule would maintain the State's narrative criteria 
requiring that mixing zones be free of substances in concentrations 
that are acutely toxic to aquatic organisms. Implementation of this 
proposed rule will be determined by performance of the biomonitoring 
procedures set out in section 1-103.D, and by demonstration of 
compliance with acute numeric criteria set out in section 3-101.J and 
applicable un-ionized ammonia and total chlorine residual standards in 
sections 3-101.A, 3-101.C, 3-101.E, 3-101.F, and 3-101.H of the New 
Mexico water quality standards.
    These provisions provide for application of the State's numeric 
criteria at the appropriate locations within the mixing zone, or 
otherwise apply throughout the waterbody at the end of any discharge 
pipe, canal or other discharge point.

D. Endangered Species Act

    Pursuant to Section 7 of the Endangered Species Act (16 U.S.C. 1656 
et seq.), federal agencies must assure that their actions are unlikely 
to jeopardize the continued existence of listed threatened or 
endangered species or adversely affect designated critical habitat of 
such species. Today's proposal would assure the application of numeric 
criteria, narrative criteria, and biomonitoring, and would result in 
the protection of aquatic life from specific pollutants that could 
reasonably be expected to interfere with the health and survival of the 
most sensitive species, including threatened and endangered aquatic 
species. In addition, this proposed rule would allow more protection 
for endangered and threatened species in that both biomonitoring and 
criteria requirements for waterbodies are necessary.
    EPA has requested and received concurrence from the United States 
Fish and Wildlife Service that this proposed rule is unlikely to 
adversely affect threatened or endangered species.

E. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:

    (1) Have an annual effect on the economy of $100 million or more 
or adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, of State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with 
an action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, 
grants, user fees, or loan programs of the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.

    Because the annualized cost of this proposed rule would be 
significantly less than $100 million and would meet none of the other 
criteria specified in the Executive Order, it has been determined that 
this is not a ``significant regulatory action'' under the terms of 
Executive Order 12866, and is therefore not subject to OMB review.

F. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires EPA 
to assess whether its regulations create a disproportionate effect on 
small entities. Among its provisions, the Act directs EPA to prepare 
and publish an initial regulatory flexibility analysis (IRFA) for any 
proposed rule which may have a significant impact on a substantial 
number of small entities. For purposes of this proposed rulemaking, 
small entities are small dischargers, whether industrial or municipal.
    The Agency concludes that this proposed rule would not have 
significant impact on a substantial number of small entities. This 
proposed rule is specific to New Mexico, and therefore limited in 
scope. This proposed rule would not establish any new substantive 
ambient water quality criteria that dischargers would need to meet. The 
requirements affect monitoring requirements that most likely will be 
included in future renewals of National Pollutant Discharge Elimination 
System (NPDES) permits and in new NPDES permits. There may be treatment 
process changes required in individual cases where the pollutant 
specific monitoring requirements identify non-compliance. EPA expects 
these to be rare.

G. Paperwork Reduction Act

    This proposed rule places no information collection activities on 
the State of New Mexico, and therefore no information collection 
requirement (ICR) will be submitted to the Office of Management and 
Budget (OMB) for review in compliance with the Paperwork Reduction Act, 
44 U.S.C. 3501 et seq.

H. Availability of the Record

    The entire administrative record concerning the New Mexico Water 
Quality Standards discussed in this preamble is available for public 
inspection and copying at the EPA, Region 6 Office, Library Services, 
1445 Ross Avenue, Dallas, Texas 75202, on weekdays during the Agency's 
normal business hours of 8 a.m. to 4:30 p.m.

List of Subjects in 40 CFR Part 131

    Water pollution control, Water quality standards, Toxic pollutants.

    Dated: October 11, 1994.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, part 131 of title 40 of 
the Code of Federal Regulations is proposed to be amended 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.

Subpart D--[Amended]

    2. Section 131.38 is added to subpart D to read as follows:


Sec. 131.38  New Mexico.

    The following provision is intended to supersede Section 1-105.E.4. 
of the ``Water Quality Standards for Interstate and Intrastate Streams 
in New Mexico,'' adopted by the Water Quality Control Commission under 
authority of Paragraph C, Section 74-6-4 of the New Mexico Water 
Quality Act (NMSA 1978):
    (a) Mixing zones shall be free of substances in concentrations 
which are acutely toxic to aquatic organisms passing through the zone 
of mixing. Compliance with this provision shall be determined by:
    (1) Performance of the biomonitoring procedures set out in Section 
1-103.D; and
    (2) By demonstration of compliance with acute standards set out in 
Section 3-101.J, and applicable un-ionized ammonia and total chlorine 
residual standards set out in Sections 3-101.A, 3-101.C, 3-101.E, 3-
101.F, and 3-101.H.
    (b) (Reserved)

[FR Doc. 94-25746 Filed 10-17-94; 8:45 am]
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