[Federal Register Volume 63, Number 43 (Thursday, March 5, 1998)]
[Proposed Rules]
[Pages 10799-10816]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5722]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-OW-5974-3]
RIN 2040-AC65
Water Quality Standards for Alabama
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: EPA is proposing water quality standards that would be
applicable to certain waters of the United States in the State of
Alabama. If promulgated as final standards, they will supersede use
designations for nine stream segments that EPA disapproved in 1986 and
1991 and which have not been revised by the State. EPA is taking this
action because it believes these disapproved State water quality
standards are inconsistent with the Clean Water Act and EPA's
implementing regulations. Specifically, EPA is proposing new use
designations for waters of the State whose current use designations
under State law do not meet applicable requirements of the Clean Water
Act.
DATES: EPA will accept public comments on this rulemaking until May 4,
1998. Comments postmarked after this date may not be considered. A
public hearing will be held in Montgomery, Alabama, on April 22, 1998.
Both oral and written comments will be accepted at the hearing.
ADDRESSES: An original plus 2 copies, and if possible an electronic
version of comments either in WordPerfect or ASCII format, should be
addressed to Fritz Wagener, Water Quality Standards Coordinator, U.S.
EPA Region 4, Water Management Division, Atlanta Federal Center, 61
Forsyth Street S.W., Atlanta, Georgia, 30303-3104. A public hearing
will be held at the Holiday Inn Hotel and Suites, 120 Madison Avenue,
Montgomery, Alabama, 36104 (334-264-2231) from 1-5 p.m. and 6-10 p.m.
on April 22, 1998. The administrative record for today's proposed rule
is available for public inspection at U.S. EPA Region 4, Water
Management Division, 15th Floor, Atlanta Federal Center, 61 Forsyth
Street S.W., Atlanta, Georgia, 30303-3104, between 8:00 a.m. to 4:30
p.m. Copies of all or portions of the record will be made available for
a charge of 20 cents per page.
FOR FURTHER INFORMATION CONTACT: Fritz Wagener, Water Quality Standards
Coordinator, U.S. EPA Region 4, Water Management Division, Atlanta
Federal Center, 61 Forsyth Street S.W., Atlanta, Georgia, 30303-3104
(telephone: 404-562-9267).
SUPPLEMENTARY INFORMATION: This Supplementary Information Section is
organized as follows:
I. Potentially Affected Entities
II. Background
A. Statutory and Regulatory Background
B. Rebuttable Presumption of Section 101(a) Uses
C. Factual Background
D. Current Alabama Water Quality Standards
III. Use Designations for Alabama Streams
A. Overview
B. Proposed Use Designations for Specific Waters of Alabama
1. Buck Creek
2. Lost Creek
3. Cane Creek--Oakman Segment
4. Flint Creek
5. Cane and Town Creeks (Jasper Segments)
6. Mobile River
7. Chickasaw Creek
8. Three Mile Creek
C. Request for Comment and Data
IV. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Site-Specific Criteria
C. Variances
D. Total Maximum Daily Loads (TMDLs)
V. Regulatory Impact Analysis
A. Evaluation of Possible Pollutant Reduction Responsibilities
B. Overview of Methodology to Estimate Potential Costs Related
to New Use Designations
C. Results for Stream Segments with Federal Use Designations
VI. Executive Order 12866
VII. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
VIII. Unfunded Mandates Reform Act
IX. Paperwork Reduction Act
X. Executive Order 12875
XI. Endangered Species Act
XII. National Technology Transfer and Advancement Act
I. Potentially Affected Entities
Citizens concerned with water quality in Alabama may be interested
in this rulemaking. Entities discharging pollutants to certain waters
of the United States in Alabama could be indirectly affected by this
rulemaking since water quality standards are used in determining
National Pollutant Discharge Elimination System (NPDES) permit limits.
Potentially affected entities include:
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Examples of affected
Category potentially entities
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Industry............................... Industries discharging
pollutants to Alabama surface
waters listed in section
131.34 of this proposed rule.
Municipalities......................... Publicly-owned treatment works
discharging pollutants to
Alabama surface waters listed
in section 131.34 of this
proposed rule.
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This table is not intended to be exhaustive, but rather provides a
guide for readers regarding NPDES regulated entities likely to be
affected by this action. This table lists the types of entities that
EPA is now aware could potentially be affected by this action. Other
types of entities not listed in the table could also be regulated. To
determine whether your facility, company or business may be affected by
this proposed action, you should carefully examine the list of waters
identified in Sec. 131.34 of today's proposed rule. If you have
questions regarding the applicability of this action to a particular
entity, consult the person listed in the proceeding ``For Further
Information Contact'' Section.
II. Background
A. Statutory and Regulatory Background
Section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA or ``the
Act'') directs States, with oversight by EPA, to adopt water quality
standards to protect the public health and welfare, enhance
[[Page 10800]]
the quality of water and serve the purposes of the CWA. Under section
303, States are required to develop water quality standards for waters
of the United States within the State. Section 303(c) provides that
water quality standards shall include the designated use or uses to be
made of the water, taking into account the water's use, and criteria
necessary to protect those uses. The beneficial uses to be considered
by States in establishing water quality standards are specified in the
Act: public water supplies, propagation of fish and wildlife,
recreation, agricultural uses, industrial uses and navigation. States
are required to review their water quality standards at least once
every three years and, if appropriate, revise or adopt new standards.
The results of this triennial review must be submitted to EPA, and EPA
must approve or disapprove any new or revised standards.
Section 303(c) of the CWA authorizes the EPA Administrator to
promulgate water quality standards to supersede State standards that
have been disapproved, or in any case where the Administrator
determines that a new or revised standard is needed to meet the CWA's
requirements. Today EPA is proposing federal standards to supersede
portions of Alabama's standards that have been disapproved by EPA and
have not been revised by the State.
EPA regulations implementing section 303(c) are published at 40 CFR
Part 131. Under these rules, the minimum elements that must be included
in a State's water quality standards include: use designations for all
water bodies in the State, water quality criteria sufficient to protect
those use designations, and an antidegradation policy. See 40 CFR
131.6. States may also include in their standards policies generally
affecting the standards' application and implementation. See 40 CFR
131.13. These policies are also subject to EPA review and approval.
Water quality standards establish the ``goals'' for a water body
through the designation of beneficial uses. Designated uses in turn
determine what water quality criteria apply to specific water bodies.
Section 101(a)(2) of the Act establishes as a national goal ``water
quality which provides for the protection and propagation of fish,
shellfish, and wildlife and * * * recreation in and on the water,''
wherever attainable. These national goals are commonly referred to as
the ``fishable/swimmable'' goals of the Act. Section 303(c)(2)(A)
requires water quality standards to ``protect the public health and
welfare, enhance the quality of water, and serve the purposes of this
Act.'' EPA's regulations at 40 CFR part 131 interpret and implement
these provisions by requiring that water quality standards provide for
fishable/swimmable uses unless those uses have been shown to be
unattainable, effectively creating a rebuttable presumption of
attainability, i.e., a default designation of fishable/swimmable
beneficial uses should apply. The mechanism in EPA's regulations used
to overcome this presumption is a use attainability analysis. (See
discussion below.)
Under 40 CFR 131.10(j), States are required to conduct a use
attainability analysis (UAA) whenever the State designates or has
designated uses that do not include the uses specified in section
101(a)(2) of the CWA, or when the State wishes to remove a designated
use that is specified in section 101(a)(2) of the Act, or adopt
subcategories of uses that require less stringent criteria. Uses are
considered by EPA to be attainable, at a minimum, if the uses can be
achieved (1) when effluent limitations under section 301(b)(1)(A) and
(B) and section 306 are imposed on point source dischargers, and (2)
when cost effective and reasonable best management practices are
imposed on nonpoint source dischargers. 40 CFR 131.10 lists grounds
upon which to base a finding that attaining the designated use is not
feasible, as long as the designated use is not an existing use.
A UAA is defined in 40 CFR 131.3(g) as a ``structured scientific
assessment of the factors affecting the attainment of a use which may
include physical, chemical, biological, and economic factors' (see
Secs. 131.3 and 131.10). In a UAA, the physical, chemical and
biological factors affecting the attainment of a use are evaluated
through a water body survey and assessment.
Guidance on water body survey and assessment techniques is
contained in the Technical Support Manual, Volumes I-III: Water Body
Surveys and Assessments for Conducting Use Attainability Analyses.
Volume I provides information on water bodies in general, Volume II
contains information on estuarine systems and Volume III contains
information on lake systems; Volumes I-II, November 1983; Volume III,
November 1984). Additional guidance is provided in the Water Quality
Standards Handbook: Second Edition (EPA-823-B-94-005, August 1994).
Guidance on economic factors affecting the attainment of a use is
contained in the Interim Economic Guidance for Water Quality Standards:
Workbook (EPA-823-B-95-002, March 1995).
In developing today's proposal, EPA developed water quality
standards according to the procedures set out for States in 40 CFR Part
131, and EPA's implementing policies, procedures, and guidance. The
basis for the proposed rule is described more fully below.
B. Rebuttable Presumption of Section 101(a) Uses
As discussed in section II.A., above, EPA regulations effectively
establish a ``rebuttable presumption'' that ``fishable/swimmable'' uses
are attainable and therefore should apply to a water body unless it is
affirmatively demonstrated that such uses are not attainable. EPA
adopted this approach in order to help achieve the national goal
articulated by Congress that, ``wherever attainable,'' water quality
provide for the ``protection and propagation of fish, shellfish and
wildlife'' and for ``recreation in and on the water.'' CWA 101(a).
While facilitating achievement of Congress' goals, the ``rebuttable
presumption'' approach preserves States'' paramount role in
establishing water quality standards in weighing any available evidence
regarding the attainable uses of a particular water body. The
rebuttable presumption approach does not restrict the discretion that
States have to determine that ``fishable/swimmable'' uses are not, in
fact, attainable in a particular case. Rather, if the water quality
goals articulated by Congress are not to be met in a particular water
body, the regulations simply require that such a determination be based
upon a credible, ``structured scientific assessment'' of use
attainability. See 40 CFR 131.3(g) (defining use attainability
analysis).
EPA believes that the rebuttable presumption policy reflected in
these regulations is an essential foundation for effective
implementation of the Clean Water Act as a whole. The ``use'' of a
water body is the most fundamental articulation of its role in the
aquatic and human environments, and all of the water quality
protections established by the CWA follow from the water's designated
use. If a use lower than ``fishable/swimmable'' is designated based on
inadequate information or superficial analysis, water quality-based
protections that might have enabled the water to achieve the goals
articulated by Congress in section 101(a) may not be put in place. As a
result, the true potential of the water body may never be realized, and
a resource highly valued by Congress may be forever lost.
[[Page 10801]]
EPA seeks, through its oversight under section 303(c) of the Act,
to ensure that any State's decision to forego protection of a water
body's potential to support ``fishable/swimmable'' uses results from an
appropriately ``structured'' analysis of use attainment. Where, as in
the case of these waters in Alabama, EPA concludes that the State
failed to adequately justify a lower than ``fishable/swimmable'' use
designation, EPA disapproves the use designation. In some cases, as
Alabama has done with regard to most of the use classifications
originally disapproved by EPA (see section II.C., below), the State
will revise its use classifications to protect fishable/swimmable uses.
In other cases, the State will conduct a more thorough analysis of use
attainability sufficient to rebut the rebuttable presumption reflected
in the regulations. Indeed, Alabama has done so for several of the
streams originally disapproved by EPA in 1986. Where, however, a State
does neither, EPA will undertake federal rulemaking to ensure the water
quality goals of the Act are effectively implemented.
In undertaking such federal rulemakings, EPA believes that it is
appropriate to follow the same rebuttable presumption approach that
applies under the regulation to State decision-making. EPA believes
this is appropriate for several reasons. First, the Agency does not
believe that it would be appropriate to alter the Part 131 approach to
making use designations merely because the forum for decision-making
has changed from the State to the federal level. Attaining the goals
articulated by Congress is no less important when EPA, as opposed to a
State, is making use designation determinations. Moreover, EPA believes
that failure to apply the rebuttable presumption in the federal context
could undermine how that presumption currently applies to State
decision-making under the Part 131 regulations. If the presumption did
not apply equally in the State and federal decision-making process, a
State could effectively shift the burden of demonstrating attainability
simply by failing to adequately justify its use designation and thereby
triggering a federal rulemaking proceeding.
Therefore, in reaching the decisions reflected in this proposed
rule, EPA applied a rebuttable presumption that fishable/swimmable uses
are attainable for these nine waters. EPA acknowledges that the
information related to actual and potential uses of these waters is, in
some cases, not extensive, and that deciding upon the appropriate use
designations is an inexact practice. At this time, and as explained in
detail below, EPA believes the available information regarding these
nine water body segments does not rebut the presumption that
``fishable/swimmable'' uses are attainable.
EPA's approach in this rulemaking does not undermine the State's
primary role in designating uses for waters in Alabama. As before, if,
prior to EPA's finalizing this rule, the State undertakes a sound
analysis of use attainability, taking into account appropriate
biological, chemical and physical factors, and concludes that the
``fishable/swimmable'' use is not attainable for these waters, EPA
would approve the State's action and not finalize this rule (or
initiate withdrawal if the State submits a sound analysis after EPA
takes final action). EPA encourages the State and any other party that
is aware of relevant information bearing upon the decisions in this
rule to provide such information in this rulemaking. EPA also
encourages the State to continue evaluating the appropriate use
designations for these waters.
C. Factual Background
In a letter dated October 14, 1986, the EPA Regional Administrator
for Region 4 disapproved use designations adopted by the Alabama
Department of Environmental Management (ADEM) for 49 stream segments
because the State failed to justify use classifications lower than
``fishable/swimmable'' uses in accordance with 40 CFR 131.10(j).
Although the State had previously submitted use attainability analyses
for these stream segments, the analyses did not adequately describe the
basis for the lower use classifications, nor did they provide adequate
information to determine if such classifications were appropriate. From
1986 to 1991, 20 of the use designations were either upgraded to the
Fish and Wildlife use classification (F&W use) by ADEM or approved as
the Agricultural and Industrial Water Supply use classification (A&I
use) by EPA. On July 18, 1991, the EPA Regional Administrator for
Region 4 disapproved 30 beneficial use designations adopted by ADEM, 29
of which were previously disapproved in 1986, plus the beneficial use
designation for one additional stream segment which lacked a use
attainability analysis.
Between July 18, 1991 and today's proposal, ADEM has upgraded to
the F&W use 13 of the stream segments disapproved by EPA. Most
recently, on May 30, 1997, ADEM adopted F&W use classifications for Hog
Bayou, Pigeon Creek, Unnamed Tributary of Pigeon Creek, Rocky Creek,
Hollinger Creek, Sougahatchee Creek, Sugar Creek and Little Bear Creek.
EPA approved these changes to the Alabama water quality standards on
December 9, 1997. Thus, as of today's proposal, there are 17 stream
segments for which EPA has disapproved the State use designation
classifications. In a separate State action on April 22, 1997, the
length of seven of these 17 remaining segments classified for less than
``fishable/swimmable'' uses was reduced, reflecting upgrades of a
portion of each of these segments to the F&W use classifications by the
State. However, the remaining portions of these seven streams remains
subject to EPA's disapproval.
On September 18, 1996 the Legal Environmental Assistance
Foundation, Inc. (LEAF) filed suit in District Court in Alabama against
EPA for failing to propose replacement Water Quality Standards for 12
stream segments in Alabama designated as ``Agricultural and Industrial
Water Supply'' or ``Industrial Operations'' which EPA had previously
disapproved. LEAF v. Browner No. CV-96-ETC-2454-S. On September 11,
1997 EPA and the plaintiffs entered into a consent decree covering 9 of
these stream segments. (EPA agreed outside the context of the consent
decree to continue evaluation of the other three segments identified in
the lawsuit). Under the terms and conditions of the consent decree, EPA
was required to sign a Federal Register notice proposing federal use
designations, or withdraw the EPA disapproval of the existing Alabama
standards for these waters, by February 28, 1998. Since the signing of
the consent decree, 2 of these 9 streams have been upgraded to the F&W
use classification by ADEM and approved by EPA, and therefore are not
covered by today's proposed federal water quality standards. Today's
proposal covers the remaining 7 streams subject to the consent decree,
as well as an additional 2 other streams still subject to EPA's
outstanding disapproval. EPA is continuing to evaluate available
information regarding the remaining 8 segments subject to EPA's
outstanding disapproval for the purposes of determining whether federal
use designations should be proposed for those waters.
On January 29, 1997, EPA published in the Federal Register (62 FR
4115) a notice of request for information and announced a public
hearing to solicit any information from interested parties which would
assist the Agency in
[[Page 10802]]
evaluating existing and potential beneficial uses of waters of the
State of Alabama. A public hearing was held on February 26, 1997 in
Montgomery, Alabama. EPA received 91 oral and written comments from
interested parties, and has considered that information in the
development of today's proposal.
As discussed above, the federal water quality standards regulations
require that water quality standards provide for fishable/swimmable
uses unless it has been demonstrated that attaining the designated
beneficial uses is not feasible for any of the reasons described in 40
CFR 131.10(g). Whenever the State designates or has designated uses
that do not include these fishable/swimmable uses or when the State
wishes to remove a designated use that is not an existing use, a use
attainability analysis must be completed and submitted to EPA for
review.
D. Current Alabama Water Quality Standards
Alabama's water quality regulations at 335-6-10 and 335-6-11,
revised most recently on May 30, 1997, contain the following use
classification categories: surface waters for public water supply,
swimming and other whole body water contact sports, shellfish
harvesting, fish and wildlife, agricultural and industrial water
supply, industrial operations, and navigation. Alabama has not adopted
a default use classification for unsurveyed waters into the state water
quality standards. The seven use designations contained in 335-6-10
have been applied, singly or in some combination, to all surface waters
of Alabama. As discussed above, in section II.C., EPA disapproved A&I
use classifications for the 9 streams segments in today's proposal.
Based upon written correspondence and conversations with Alabama's
Department of Environmental Management, it is EPA's understanding that
current State practice relies on a demonstration that ``fishable/
swimmable'' uses have actually been attained before the State takes
action to adopt the higher use into water quality standards. In EPA's
view, Alabama's approach assumes the unattainability of ``fishable/
swimmable'' uses, in impaired waters, by requiring a demonstration that
fishable/swimmable uses are actually attained before they will be
protected. This is inconsistent with the requirements of 40 CFR Part
140 131.10. (See discussion above.)
EPA is proposing that nine stream segments be classified as subject
to the Fish and Wildlife use set out at 335-6-10-.03 of the State's
regulations. In developing today's proposal, EPA evaluated Alabama's
existing water quality standards to determine which State use
designations correspond to ``fishable/swimmable'' uses, and would
therefore ensure protection of the CWA section 101(a) goals. Rather
than establish new federal use designations for these Alabama waters,
EPA believes it is preferable to apply use designations that both meet
the goals of the CWA and would be consistent with longstanding State
standards regulations. Because water quality standards for these
segments, if ultimately promulgated, will be the basis for establishing
NPDES permit limits by the State, the Agency believes that utilizing an
existing State use designation will facilitate implementation of the
standards. This also facilitates withdrawal of federal standards in the
future, if Alabama takes appropriate action justifying such withdrawal.
Subsection 335-6-10-.09(4) includes the descriptions of the Fish
and Wildlife uses and conditions and specific criteria necessary to
support the Fish and Wildlife use. Subsection 335-6-10-.09(4) (a), (b),
(c) and (d) specify the usage of waters classified for Fish and
Wildlife uses, as follows:
(4)(a) Best usage of waters: Fishing, propagation of fish,
aquatic life, and wildlife, and any other usage except for swimming
and water-contact sports or as a source of water supply for drinking
or food processing purposes.
(4)(b) Conditions related to best usage: the waters will be
suitable for fish, aquatic life and wildlife propagation. The
quality of salt and estuarine waters to which this classification is
assigned will also be suitable for the propagation of shrimp and
crabs.
(4)(c) Other usage of waters: It is recognized that the waters
may be used for incidental water contact and recreation during June
through September, except that water contact is strongly discouraged
in the vicinity of discharges or other conditions beyond the control
of the Department or the Alabama Department of Public Health.
(4)(d) Conditions related to other usage: The waters, under
proper sanitary supervision by the controlling health authorities,
will meet accepted standards of water quality for outdoor swimming
places and will be considered satisfactory for swimming and other
whole body water-contact sports.
If EPA promulgates final water quality standards as proposed,
Alabama's existing water quality criteria adopted to protect the F&W
use would apply to these waters. These criteria are set out at 335-6-
10-.05 (General Conditions Applicable to All Water Criteria), 335-6-
10-.06 (Minimum Conditions Applicable to All State Waters), 335-6-
10-.07 (Toxic Pollutant Criteria Applicable to State Waters), and 335-
6-10-.09(4) (Specific Water Quality Criteria--Fish and Wildlife use).
Subsection 335-06-10-.05 establishes State policies applicable to
all State waters regarding analytical procedures, collection of samples
used to determine compliance with water quality criteria, mixing zones,
criteria exceedances due to natural conditions, recreational use of
State waters, and schedules of compliance with new water quality
standards. Compliance with a modified effluent limit based on a new
standard is required as soon as possible, ``but in all cases within
three years of the adoption of the new standard.''
Subsection 335-10-.06 contains the ``free from'' toxicity
provisions of Alabama's water quality standards applicable to all State
waters. These provisions relate to general protection of State waters
from adverse effects due to substances attributable to sewage,
industrial wastes or other wastes from settling, floating, and
toxicity.
Section 335-6-10.07 includes a tabular listing of water quality
criteria applicable to State waters pursuant to applicable designated
uses. Included are numeric criteria or criteria equations for
protection of aquatic life from acute toxic effects for 24 parameters
(which apply to all State waters except those waters classified for
Navigation or Industrial Operations uses), numeric criteria or criteria
equations for protection of aquatic life from chronic toxic effects for
29 parameters (which apply to all State waters except those waters
classified for Navigation, Industrial Operations, or Agricultural and
Industrial Water Supply uses), human health-based criteria equations
and Maximum Contaminant Levels for 100 parameters (applicable to waters
classified for drinking water purposes), and the minimum instream
design flows to be used in application of water quality criteria.
This section also includes the criteria equations for 98 parameters
for protection of human health from the consumption of fish and
shellfish applicable to all State waters. Since the State's human
health-based water quality criteria apply to all State waters,
regardless of classification, human health criteria were not considered
to have a direct effect in the analysis of proposed revised
classifications of Fish and Wildlife uses for waters considered in this
rulemaking.
Subsection 335-6-10.09(4)(e) (Specific criteria) contains the water
quality criteria related to the protection of the above uses, including
numeric and/or narrative criteria for pH, temperature, dissolved
oxygen, whole
[[Page 10803]]
effluent toxicity, bacteria, radioactivity and turbidity.
Criteria for protection of aquatic life for dissolved oxygen (DO)
are contained in the Alabama water quality standards at Subsection
(4)(e)(4), which includes, in pertinent part:
(i) For a diversified warm water biota, including game fish, daily
dissolved oxygen concentrations shall not be less than 5 mg/l at all
times; except under extreme conditions due to natural causes, it may
range between 5 mg/l and 4 mg/l, provided that the water quality is
favorable in all other parameters. The normal seasonal and daily
fluctuations shall be maintained above these levels.
(ii) In coastal waters, surface dissolved oxygen concentrations
shall not be less than 5 mg/l, except where natural phenomena cause the
value to be depressed.
(iii) In estuaries and tidal tributaries, dissolved oxygen
concentrations shall not be less than 5 mg/l, except in dystrophic
waters or where natural conditions cause the value to be depressed.
(iv) In the application of dissolved oxygen criteria referred to above,
dissolved oxygen shall be measured at a depth of 5 feet in waters 10
feet or greater in depth; and for those waters less than 10 feet in
depth, dissolved oxygen criteria will be applied at mid-depth.
Subsection 335-6-10-.09(4)(e) also includes a reference to
toxicity-based criteria applicable to the Fish and Wildlife use in
section 335-6-10-.07. This Subsection includes narrative criteria for
the protection from adverse effects of taste, odor, and color effects,
including aesthetic qualities, as well as narrative criteria for the
protection of palatability and marketability of fish, wildlife, shrimp
and crabs taken from State waters.
III. Use Designations for Alabama Streams
A. Overview
As discussed above, the Agency believes that it is appropriate to
apply a rebuttable presumption that ``fishable/swimmable'' uses are
attainable in these waters. In terms of Alabama's water quality
standards, the Agency believes that the F&W use designation
appropriately reflects ``fishable/swimmable'' uses. EPA has evaluated
the information available to the Agency to determine whether that
information demonstrates the F&W use is not attainable for any of these
waters (i.e., to rebut the rebuttable presumption). EPA's analysis has
been informed by regulatory provisions and technical guidance that EPA
has provided to States for the development of UAAs. As noted above, EPA
regulations define a use attainability analysis as an assessment of the
factors affecting attainment of a use, which may include ``physical,
chemical, biological and economic factors * * *.'' 40 CFR 131.3(g).
Consistent with this provision, but within the limitations of the data
and information available, EPA evaluated several categories of
information in today's analysis of use attainability.
First, the Agency evaluated available information regarding the
existing characteristics of the waters in terms of the biological
communities that are present. If, in fact, the waters currently support
biological communities commensurate with the F&W use designation, EPA
considered this to be very strong evidence in favor of the conclusion
that such a use is, in fact, attainable. To facilitate evaluation, EPA
reviewed the technical literature and examined studies performed by
federal, State, or local agencies. EPA considered all the information
that it could obtain prior to today's proposal regarding these streams'
biology. However, in certain cases, this information was quite limited.
As discussed below, EPA is interested in obtaining from the public any
additional information regarding the biological state of these waters.
EPA recognizes the presence of aquatic life in a water is not the
only information which should be reviewed when evaluating designated
uses. Significant exceedances of criteria established to protect
``fishable/swimmable'' uses may indicate that, notwithstanding the
existing aquatic community, the use is impaired to some extent. In such
cases, full attainment of the use might lead to development of a more
robust and diverse aquatic community than is currently present.
Therefore, in addition to evaluating available biological information,
the Agency also reviewed available information regarding ambient stream
chemical characteristics. EPA extracted chemical-specific data from the
EPA Storage and Retrieval (STORET) data base, which houses ambient
water quality data for water bodies throughout the United States,
including Alabama. EPA's evaluation focused on those pollutant
parameters for which new or more stringent criteria would apply to the
affected stream segment under the proposed rule. According to the
procedures contained in Chapter 335 of the Alabama Department of
Environmental Management Regulations, chronic aquatic life protection
criteria are applied to stream segments classified as F&W use, whereas
only acute aquatic life criteria are applied for A&I use protection.
For all pollutants except dissolved oxygen (DO), EPA generated summary
statistics (minimum, average, and maximum values on record) for the
ambient water quality within each affected stream segment and compared
them to the State water quality criteria applicable to the F&W use
designation. EPA then evaluated the extent to which current ambient
stream chemical concentrations met the applicable criteria.
Alabama's criterion for DO adopted to protect and maintain the F&W
use is a minimum of 5 mg/L unless natural factors preclude the
attainment of a 5 mg/L standard, in which case the criterion is 4 mg/L.
In determining whether stream segments currently meet this criterion,
data were obtained from STORET and analyzed by year and month.
September generally had the lowest DO concentrations and the lowest
stream flow and was considered to represent the worst situation that
would be found on average. For purposes of EPA's analysis, if the mean
of September DO values was above 4 mg/L, then the criterion was deemed
to be met. If the mean of September DO values was below 4 mg/L, then
EPA performed an analysis using a mathematical model to project the
increase in DO that would result from removing the biological oxygen
demand (BOD) from point source discharges to each segment. If the
resulting DO concentration was above 4 mg/L, then EPA concluded that
the criterion could be met if appropriate controls were established for
point and nonpoint source discharges.
The above analysis was carried out solely to provide an estimate of
the extent to which DO conditions appear to be commensurate with the
F&W use. It should be recognized that the completion of more definitive
wasteload allocations could be needed for the purposes implementing
water quality control programs to ensure attainment of the F&W use
designation ultimately promulgated by EPA.
If significant exceedances of F&W water quality criteria (in terms
of relative magnitude above the applicable criteria, duration and
frequency of exceedance above the criteria, and the number and types of
pollutants) had occurred on a consistent basis, such information could
suggest that a F&W use is not being fully attained currently.
Considerable judgment, however, must be exercised when evaluating the
extent to which current exceedances of water quality criteria in the
stream indicate that the F&W use is not, in fact, attainable within the
meaning of the
[[Page 10804]]
water quality standards regulations. Findings regarding attainability
must take into account not only present circumstances, but also the
pollutant reductions that would be achieved, at a minimum, through
imposition of technology-based controls for point sources as well as
implementation of best management practices for nonpoint sources.
Moreover, where the biological and other information indicates that
a water body is or could be generally supportive of the F&W use,
exceedances of criteria for particular pollutant parameters might not,
in fact, support a conclusion that such a use is not currently being
attained or is otherwise unattainable. Rather, in some cases an aquatic
community could have acclimated to ambient conditions which are less
than ideal and the best approach may be to adopt site-specific criteria
protective of that F&W use for the particular water body (see
discussion of alternative regulatory approaches in section IV.B.,
below). Thus, in evaluating the significance of a water body's
exceedance of F&W criteria, EPA weighed that information along with
consideration of other related factors (e.g., biological and physical
characteristics, habitat, flow regime, tidal influences, etc.), as well
as the types of pollutants at issue and the significance of any
impairment, as well as discharger-specific information described below.
The last broad category of information considered by EPA in its
decision-making process was monitoring information for each of the
dischargers on the nine stream segments (as reflected in Discharge
Monitoring Reports or DMRs). As discussed in detail in section V.C.,
below, EPA analyzed the extent to which the proposed federal use
designations would require any facility to meet more stringent NPDES
permit limits and, if so, what types of controls would be needed by
these facilities to meet such limits. Discharger information was used
in one of two ways by the Agency. First, monitoring data was used to
assess the contribution of the point source dischargers to the affected
stream segment in order to assist in the determination of whether F&W
uses could be achieved. Second, the Agency used the monitoring data to
determine whether dischargers would need to significantly alter their
operations (or could, in fact, meet permit limits that would be
associated with the F&W use). Information indicating that dischargers
could generally meet such revised limits would support the presumption
that the F&W use is attainable.
An additional factor considered carefully by EPA in its analysis
has been the State of Alabama's analysis of use attainability. As
discussed above, the State has previously determined that the A&I use
was appropriate for these waters and, in some cases, submitted some
analyses in support of those designations. While EPA disapproved the
use designations on the grounds that the State had not provided use
attainability analyses that would meet applicable EPA requirements
(i.e., the analyses provided by the State focused on a facility's
inability to meet revised F&W permit limits instead of a broader
evaluation of the factors which might preclude a stream segment from
attaining the F&W use), the Agency nonetheless carefully evaluated the
State's conclusions and any supporting information. EPA also considered
initiatives that may be underway to address point and nonpoint sources
of pollution.
Finally, one important factor considered by EPA was the use
designations adopted by the State for similar or proximate areas. Where
a segment designated as A&I was similar in character to segments
designated as F&W by the State, in particular if the F&W stream segment
was located close to the A&I stream segment, the Agency considered such
information to strongly favor the presumption of attainability of the
F&W use.
B. Proposed Use Designations for Specific Waters of Alabama
Based upon the approach described above, EPA has evaluated any
available information to determine whether it is sufficient to rebut
the presumption the Fish and Wildlife use designation is attainable for
the nine stream segments in today's proposal. Each segment is addressed
below.
If, prior to any final rulemaking by EPA, Alabama classifies any of
the nine stream segments with use designations consistent with the CWA
and 40 CFR Part 131, EPA will approve those use designations and not
include such stream segments in any final rule promulgated by EPA.
1. Buck Creek
Ambient monitoring for several pollutants (including in part,
nutrients, DO, and BOD), was performed by EPA in Buck Creek for 4 days
in 1995. According to these monitoring data, the DO (reported as an
average of two samples on each occasion) upstream from the Alabaster
Waste Water Treatment Plant (WWTP), which is the only permitted point
source on Buck Creek, was below the 5 mg/L criterion on 3 of 4
occasions; DO directly downstream from the Alabaster WWTP was above the
DO criterion on all four occasions; DO about 1 mile downstream from the
Alabaster WWTP, was above 5 mg/L on 3 of 4 occasions. However, the
stream DO levels never fell significantly below the DO criterion and
were typically above 3.8 mg/L.
Alabama recently upgraded the lower portion of Buck Creek to the
F&W use. EPA is unaware of information indicating that water quality
conditions on the portion of Buck Creek that is subject to this
proposal is significantly different from the portion that Alabama has
upgraded to the F&W use. The alleged inability of the Alabaster WWTP to
meet permit limits based on the F&W criteria for DO is the rationale
ADEM is using to maintain the A&I use for this portion of Buck Creek.
However, as discussed further below, EPA does not believe that
designated uses should be determined solely based upon the ability of a
particular discharger to meet permit limits for a particular pollutant.
In the case of this discharger, moreover, EPA believes that the
existing effluent quality is very close to the permit limit that would
likely be imposed to assure compliance with the DO criterion for the
F&W use, based on the natural, low-flow conditions of this water body.
Taking into account the proximity of the segment to waters
designated as F&W, the available (although limited) DO data, as well as
the likely negligible impact of an upgrade on the only discharger on
this segment, EPA believes that proposing the F&W use designation for
this stream is appropriate.
2. Lost Creek
In 1993, two field studies were performed by ADEM on Lost Creek.
During the June 1993 study of Lost Creek, DO values at all stations,
including stations downstream from the Carbon Hill WWTP discharge, were
reported above the 5.0 mg/L F&W criterion. The results from the second
study performed in September 1993 were similar to the first in that DO
values at most stations were reported above the 5.0 mg/L criterion.
However, the DO occasionally dropped to just below the F&W criterion at
two stations located 6 to 7 miles downstream from the discharge from
the Carbon Hill WWTP. These two stations are also located just
downstream from Mill Creek and Cheatham Creek, two tributaries to Lost
Creek.
Based on available information, EPA proposes to upgrade this stream
segment to the F&W use designation. This segment of Lost Creek is 8.2
miles long,
[[Page 10805]]
and is located between upstream and downstream segments each classified
as F&W. The geographic relationship between this segment and other
segments classified as F&W by the State supports a conclusion that the
appropriate use designation for this segment should also be the F&W
use. EPA is aware of no information indicating that the biological,
physical or chemical characteristics of this segment are so
substantially different from the surrounding segments that its use
designation should be lower than those segments. Moreover, given the
length of this segment, EPA believes it is reasonable to infer fish
migration from the stream segments classified as F&W into the segment
currently classified as A&I.
The primary characteristic distinguishing this stream segment and
the surrounding segments classified as F&W by the State is that it is
influenced by the discharge from the Carbon Hill Wastewater Treatment
Plant. In a draft UAA provided to EPA, ADEM sought to justify the A&I
use designation for this segment on the presumed inability of that
plant to meet NPDES permit limits that would need to be imposed on that
plant to meet the F&W criterion for DO. As stated above, however, EPA
believes that determining the appropriate use designation for a water
requires consideration of both the actual and potential circumstances
in the water body, and should not be determined solely based upon the
ability of a particular discharger to meet permit limits for a
particular pollutant. As discussed further below, if attainment of a
particular permit limit is not feasible for a particular discharger,
the appropriate mechanism for dealing with that circumstance may be a
variance, rather than failing to protect the attainable uses of the
water body as a whole. While Alabama has chosen not to include variance
procedures in its standards, EPA does not believe that the use
designation for an entire water body should necessarily turn on the
feasibility of a particular discharger's meeting certain permit limits.
For the purposes of this rule, moreover, the Agency is proposing a
federal variance procedure (see discussion in section IV.).
In any case, based on an evaluation conducted by EPA, the Agency
believes that the existing effluent discharged by the Carbon Hill plant
is currently of sufficient quality to meet permit limits consistent
with F&W uses, and that the plant would similarly be able to meet such
limits operating at its design capacity. The Agency bases this
conclusion on a review of the existing treatment capabilities and
operations, and discussions with the plant operator and State
officials.
3. Cane Creek--Oakman Segment
In September 1997, EPA conducted a biological survey of Cane Creek
(from Alabama Highway 69 to its source). The survey compared a site in
the stream segment classified as F&W upstream from the Oakman WWTP and
a site in the A&I segment 2.5 miles downstream from the facility. The
results of this survey indicate that both sites were very similar. This
biological assessment in late summer indicates that the stream has a
substantial aquatic community. Chemical-specific water quality data
also collected during this survey, indicate no exceedances of
applicable F&W criteria, but did show potential water quality impacts
from discharges from mining areas within the watershed (as indicated by
elevated conductivity measurements found below the mining areas). While
these discharges from mining areas are having an impact on the aquatic
community, EPA does not believe, overall, that the level of stress
placed on the aquatic community is sufficient to warrant an A&I use
designation.
This segment of Cane Creek (Oakman Segment) is located below the
discharge of the Oakman WWTP (with a discharge design flow of 90,000
gallons per day). ADEM provided to EPA a draft UAA which indicated the
reason for not upgrading this stream segment is due to the presumed
inability of the WWTP to meet NPDES permit limits for carbonaceous BOD
that are necessary to achieve the F&W DO criterion.
As indicated above, however, the potential inability of a
particular discharger to meet certain permit limits should not alone
determine the appropriate use classification for the entire water body.
In any case, the facility is currently scheduled to upgrade its
existing treatment system. Because the quality of the discharge from
this facility should therefore improve, EPA does not believe that the
facility-specific concerns previously expressed by the State should
alone be relied upon to conclude that the F&W use is unattainable
within the meaning of the CWA. Taking into account the totality of the
available information, including the biological and chemical
information described above, EPA does not believe that the presumption
of attainability has been rebutted for this segment. EPA proposes to
upgrade this stream segment to the F&W use designation.
4. Flint Creek
The A&I segment of Flint Creek is located downstream from the
Hartselle WWTP and between two segments classified by the State as F&W.
EPA is aware that the Flint Creek watershed (including waters
classified as F&W by the State) is generally subject to adverse water
quality impacts. Both EPA and the State have committed substantial
resources to evaluating the sources and the extent of these impacts, as
well as potential solutions. These efforts have resulted in water
quality improvements over the last several years. For example, in 1992
and 1995, ADEM performed a macroinvertebrate bioassessment on the
segment of Flint Creek subject to this proposal, and concluded that
water quality had improved, as reflected by an increase in taxa
richness, diversity and equitableness during that period. EPA has
developed a total maximum daily load (TMDL) for the watershed
indicating the reduction in pollutant loads that would achieve the DO
criterion for F&W uses.
While the Agency recognizes that currently this segment is not as
vital and robust a water body as it could be, EPA believes that there
are sufficient indicators of both actual and potential uses of this
water to support the F&W use. This conclusion is supported by the fact
that the State has classified certain segments in the watershed as F&W,
and those segments are comparable to the segment the State has
classified as A&I. EPA is not aware of information that would justify
treating these segments differently than other F&W stream segments in
the watershed. Therefore, EPA is proposing to upgrade this stream
segment to the F&W use designation.
5. Cane and Town Creeks (Jasper Segments)
In September 1997, EPA conducted a biological survey of the Jasper
Segments of Town and Cane Creeks. These two streams are currently
classified as A&I at their confluence, Town Creek from its mouth to a
distance 1.1 miles upstream, and Cane Creek from the confluence to
Mulberry Branch. This survey indicated that viable benthic
macroinvertebrate populations exist within both creeks, except within
one segment of Town Creek, just downstream from the discharge from the
Jasper WWTP. While the Cane Creek A&I segment was sufficiently impacted
by the discharge to warrant an impaired rating in ADEM's biotic survey,
that aquatic community was significantly improved as compared to the
aquatic community of the upstream A&I Town Creek segment impacted by
the Jasper WWTP.
[[Page 10806]]
Further, the ADEM biotic survey indicates that the A&I segment of Cane
Creek has good potential to further improve its ability to support a
healthy aquatic community.
Although no data are provided in STORET for the Jasper Segments of
Cane and Town Creeks, EPA conducted a sampling investigation in June
1997. The long term BOD results and other data from the June sampling
have recently been completed and the data are being used to calibrate
and validate the water quality model for these streams. Preliminary
analysis of the data indicates that there are natural stagnant flow
conditions during low flow periods which may have an adverse impact on
DO levels. Further model analysis is necessary to better quantify the
impact the Jasper WWTP is having on the stream water quality and to
better assess the natural DO levels in the streams during critical low
flow conditions. The Jasper WWTP is currently undergoing an upgrade,
which includes the installation of an equalization basin to assist in
control and treatment of high infiltration and inflow from the
collection system. The installation of this basin is expected to
enhance treatment plant performance, which should result in improved DO
levels in the stream.
Based on EPA's review of the available information, the Agency has
concluded that it is appropriate to propose to upgrade this stream
segment to the F&W use designation. As noted above, viable benthic
communities are present, except in one segment just downstream from the
discharge from the Jasper WWTP. The aquatic community in the lower A&I
segment of Cane Creek is comparable to that of the upper F&W segment.
While stressed, the aquatic community in both these stream segments
currently classified as A&I is not incompatible with the aquatic
community found in the F&W segments of Cane and Town Creeks.
While the discharge from the Jasper treatment plant has some impact
on water quality, this plant is currently undergoing a facility upgrade
that should positively affect conditions in the stream. EPA believes
that the totality of the information does not indicate that the F&W use
is unattainable. EPA recognizes that additional work is needed to
assess the natural DO levels in the stream during critical low flow
conditions. A site-specific criterion for DO for these stream segments
that would both protect the F&W use classification while recognizing
natural conditions may be appropriate (see discussion of site-specific
criteria below, section IV.B.).
6. Mobile River
EPA identified numerous studies that have been performed on the
Mobile Bay watershed, which includes the Mobile River from its mouth to
the Spanish River. Most studies focused on evaluating the factors that
contribute to the relatively low levels of DO within the Bay itself. As
described further below, several of these studies included the Mobile
River. Several studies indicate the occurrence of a diversity of
freshwater, estuarine and marine invertebrate and vertebrate species in
the Mobile Bay watershed, which supports the presumption that the
portion of the Mobile River currently classified as A&I should be able
to attain the F&W use designation.
EPA evaluated several years of chemical-specific ambient monitoring
data provided in STORET for one station (Station MO2) on the segment of
the Mobile River affected by the new use designation. At Station MO2,
pH, metals, hardness and salinity are monitored. Station MO2 is located
approximately 2 miles downstream from discharges from two pulp and
paper facilities, as well as 1 mile downstream from Chickasaw Creek. Of
the pollutants for which there are data, Station MO2 reports occasional
water quality criteria exceedances for total cadmium and total mercury.
There were 28 analyses for total cadmium from 1982 to 1989. Cadmium was
detected three times above the criterion, with a maximum of 30
g/L and a minimum of 10 g/L. The criterion for that
part of the river is 4.5 g/L (based on the mean hardness value
reported in STORET). There were only five analyses for total mercury
from 1981 to 1985. Mercury was detected once at 1.4 g/L; the
criterion for mercury is 0.012 g/L.
Many of the studies of DO within the Mobile Bay estuary show levels
of DO below the F&W criterion of 5 mg/L. Several factors have been
identified as the potential causes of the low DO levels, including BOD
from upstream segments and natural influences associated with tidal
movements. Other studies point to the potential impact of past dredging
activities within the Mobile River that fundamentally change the
hydraulic characteristics of the river, and subsequently affect DO
levels.
In EPA's analysis of DO conditions for this proposal, it was
determined that the DO criterion applicable to the F&W use designation
could be met under low-flow conditions in the A&I segment of the Mobile
River, but episodic variations in upstream DO would occasionally cause
the standard to be exceeded. Evaluation and control of some upstream
point and nonpoint BOD sources, and control of in-segment point and
nonpoint BOD sources would facilitate achievement of the DO criterion
with greater consistency.
EPA recognizes that the periodic low DO conditions in the Mobile
River are current impairments to development of a more robust aquatic
community. Nonetheless, available ambient monitoring data does not show
significant exceedance of criteria for metals. Moreover, even under
low-flow conditions, monthly average DO conditions at most times are
consistent with a F&W use designation. Taken together, EPA believes
that, while existing conditions may be somewhat impaired, there is not
sufficient information to conclude that the F&W use designation is not
attainable for this stream segment. Therefore, EPA is proposing to
upgrade this stream segment to the F&W use designation.
7. Chickasaw Creek
EPA conducted water quality assessments of Chickasaw Creek in 1974
and 1990. In EPA's 1974 assessment, DO levels were found to be zero or
nearly zero in the lower portions of the water column within Chickasaw
Creek. The 1990 assessment showed improvement from 1974, but DO values
were still depressed in the lower portions of the water column.
However, the 1990 assessment concluded that surface DO values met DO
criteria for the F&W use at all monitoring stations.
EPA also extracted ambient monitoring data from STORET for two
stations on Chickasaw Creek. As reported in the STORET data set, data
indicate relatively few instances where ambient conditions do not meet
F&W water quality criteria. The stations are located at U.S. Highway 43
near the City of Mobile, and halfway between this upstream station and
the mouth of Chickasaw Creek at Mobile River.
Occasionally, total cadmium, total copper, and total mercury
exceeded the applicable F&W water quality criteria at the upstream U.S.
Highway 43 Station. There were 28 analyses for total cadmium between
1981 and 1991. Cadmium was detected twice above the criterion, once at
20 g/L and once at 10 g/L. The total cadmium
criterion for that part of the river is 1.5 g/L (based on the
mean hardness value reported in STORET). Also, there were 41 analyses
for total copper from 1974 to 1991. Copper was detected six times above
the criterion at a maximum of 250 g/L and a minimum of 10
g/L. The mean of the detected values was 57 g/L. The
total copper criterion for that part of the river is 25 g/L.
There were only five
[[Page 10807]]
analyses for total mercury between 1981 and 1985. Mercury was detected
once at 1.4 g/L; the criterion for mercury is 0.012
g/L.
The downstream station reports occasional exceedances of F&W water
quality criteria for total cadmium, total copper, and total mercury.
There were 26 analyses of total cadmium between 1981 and 1991. Cadmium
was detected above the criterion once at 30 g/L. The criterion
for that part of the river is 3.8 g/L (based on the mean
hardness value reported in STORET). There were 44 total copper analyses
between 1974 and 1991. Copper was detected seven times, with a mean of
57 g/L. On one occasion, however, copper was detected at 230
g/L, an exceedance of the 76.4 g/L criterion for this
part of the river. In addition, there were five analyses for total
mercury between 1981 and 1985. Mercury was detected once at 1.4
g/L; the criterion for mercury is 0.012 g/L. Thus,
monitoring indicates that the water segment meets the F&W criteria in
most cases.
Based on analysis of STORET data for Chickasaw Creek, a 5/4 mg/L DO
standard would not be achieved under low-flow conditions without
additional evaluation and control of upstream point (Prichard Brooks
WWTP) and nonpoint sources of BOD. Additional evaluation and control of
point (Chickasaw Lagoon WWTP and Shell Oil) and nonpoint sources of BOD
within the segment would facilitate achievement of the DO criterion on
a more consistent basis.
While existing conditions in Chickasaw Creek indicate depressed DO
levels, monitoring for other pollutants (cadmium, copper and mercury)
indicate that the stream segment meets the F&W criteria in most cases.
EPA recognizes that additional controls on point and nonpoint sources
would need to be implemented in order to support a robust F&W use.
However, based on currently available information, it has not been
demonstrated that implementation of such control measures is not
feasible (impacts of achieving reductions through point source controls
are discussed further in section V. below). Therefore, EPA is proposing
to upgrade the use of this segment to the F&W use designation.
8. Three Mile Creek
Ambient monitoring data were provided in STORET for one monitoring
station on Three Mile Creek which has several years of chemical-
specific data. The data show relatively few instances during which
ambient concentrations exceeded the water quality criteria for total
copper, total lead, and total mercury. There were 40 analyses for total
copper from 1974 to 1991. Copper was detected five times, with a
maximum of 230 g/L and a minimum of 20 g/L. The mean
of the detected values was 106 g/L. The criterion for that
part of the river is 32 g/L (based on the mean hardness value
reported in STORET). There were 27 measurements of total lead from 1981
to 1991. Lead was detected once above the criterion at 20 g/L.
The criterion for that part of the river is 3.9 g/L. There
were only five analyses for total mercury between 1981 and 1985.
Mercury was detected once at 2.1 g/L. The criterion for
mercury is 0.012 g/L.
For Three Mile Creek, a 5/4 DO standard could be met under low-flow
conditions by controlling the BOD discharges from the Mobile Smith and
Prichard Morris WWTPs. Control of upstream point and nonpoint, as well
as in-segment point and nonpoint, sources of BOD would facilitate
achievement of the DO criterion with greater consistency.
While existing conditions in this segment currently indicate some
difficulty in meeting F&W-based DO limits, the data for other
pollutants generally indicates no substantial impairment of the F&W
use. EPA recognizes that additional control measures would be needed to
support a robust F&W use. However, available information does not
indicate that implementation of such measures would be infeasible
(impacts of point source controls are discussed in section V. below).
Therefore, EPA is proposing to upgrade this stream segment to the F&W
use designation.
C. Request for Comment and Data
EPA believes the above proposed designated uses are appropriate
considering the requirements of the CWA and the data and information
available to EPA at the time of today's proposal. EPA acknowledges that
additional data and information may exist which may further support or
refute the attainment of today's proposed designated uses. Accordingly,
the Agency will evaluate any data and information submitted to EPA by
the close of the public comment period with regard to designating uses
for these nine stream segments. Based on that evaluation EPA will make
a final decision whether the designated uses in today's proposal are
appropriate and consistent with the Act. To assist the Agency in
ensuring that these decisions are based on the best available
information, the Agency is soliciting additional information. To assist
commenters, the following paragraphs provide guidance on the type of
information EPA considers as relevant.
Specifically EPA is seeking information that would assist in
determining whether the beneficial uses identified above are currently
being attained or have been attained in the past; whether natural
conditions or features or human caused conditions prevent the
attainment of these uses and whether these conditions can or cannot be
remedied or would cause more environmental damage to correct than to
leave in place; or whether the controls more stringent than those
required by section 301(b) and 306 of the CWA would be needed to attain
the uses and implementation of such controls would result in
substantial and widespread social and economic impact. Below is a
general discussion of the types of data/information requested by the
Agency:
Ambient Monitoring Information: (1) Any in-stream data for any of
the above stream segments reflecting either natural conditions (e.g.,
in-stream flow data or other data relating to stream hydrology) or
irretrievable human-caused conditions which cannot be remedied and
which prevent the uses or water quality criteria from being attained;
(2) any available in-stream biological data; (3) any chemical and
biological monitoring data that verify improvements to water quality as
a result of treatment plant/facility upgrades and/or expansions; and
(4) any in-stream data reflecting nonpoint sources of pollution or best
management practices that have been implemented for nonpoint source
control.
Current and Historical Effluent Data: (1) Any data and information
relating to mass loadings from point source discharges of pollutants
such as BOD, NH3-N, chlorine, metals (e.g., As, Cd, Cr, Cu,
Pb, Hg, Ni, Ag, Zn), other toxics (e.g., volatile organic chemicals
such as benzene or toluene, acid extractables such as
pentachlorophenol, base neutrals such as anthracene, fluorene or
pyrene, and pesticides such as aldrin, lindane, DDT, dieldrin, endrin
and toxaphene); (2) data and information related to facility or
treatment plant effluent quality; and (3) any information related to
releases of pollutants from other sources such as landfills,
transportation facilities, construction sites, agriculture/
silviculture, incinerators, and contaminated sediments.
Water Quality Modeling Information: (1) Any data or information on
analytical models which can be used to evaluate or predict stream
quality, flow, morphology; (2) any physical, biological or chemical
characteristics relating to beneficial uses; and (3) the results of
[[Page 10808]]
any such models which can be used to evaluate the attainment of
beneficial uses.
Economic Data: Any information relating to costs and benefits
associated or incurred as a result of facility or treatment plant
expansions or upgrades. This information includes: (1) Qualitative
descriptions or quantitative estimates of any costs and benefits
associated with facility or treatment plant expansions or upgrades, or
associated with facilities or treatment plants meeting limits; (2) any
information on costs to households in the community with facility or
treatment plant expansions or upgrades, whether through an increase in
user fees, an increase in taxes, or a combination of both; (3)
descriptions of the geographical area affected; (4) any changes in
median household income, employment, and overall net debt as a percent
of full market value of taxable property; and (5) any effects of
changes in tax revenues if the private-sector entity were to go out of
business, including changes in income to the community if workers lose
their jobs, and effects on other businesses both directly and
indirectly influenced by the continued operation of the private sector
entity.
IV. Alternative Regulatory Approaches and Implementation Mechanisms
As explained above in section II., EPA's regulation supports a
rebuttable presumption approach for designation of beneficial uses.
Today's proposal reflects EPA's determination of appropriate use
designations for these nine streams, based upon the information
available to EPA at this time. EPA will consider any data or
information submitted to the Agency by the close of the comment period
in developing a final rule. However, it is possible that data and
information may become available after completion of this rulemaking
that will be material to water quality standards for these streams. If
EPA ultimately promulgates federal use designations for these nine
streams, there are several mechanisms available to ensure that the
water quality standards and their implementing mechanisms appropriately
take into account such information. These mechanisms are described
below.
A. Designating Uses
States have considerable discretion in designating uses. The State
may find that changes in use designations are warranted. As stated
above, EPA will review any new or revised use designations adopted by
the State for any of the water bodies in today's proposal to determine
if the standards meet the requirements of the CWA and implementing
regulations. If approved, EPA would subsequently initiate withdrawal of
any final federal water quality standards which may result from today's
proposal. However, EPA cautions the State that it must conduct a use
attainability analyses as described in 40 CFR 131.3(g) when adopting
water quality standards which result in uses which are not specified in
section 101(a)(2) of the CWA, or which result in subcategories of uses
specified in section 101(a)(2) which require less stringent criteria.
B. Site-Specific Criteria
The State may also develop data which indicates a site-specific
water quality criteria for a particular pollutant is appropriate and
take action to adopt such a criteria into their water quality
standards. Site specific criteria are allowed by regulation and are
subject to EPA review and approval. 40 CFR 131.11 requires States to
adopt criteria to protect designated uses which are based on sound
scientific rationale and which contain sufficient parameters or
constituents to protect the designated use. In adopting water quality
criteria, States must establish numerical values based on 304(a)
criteria, 304(a) criteria modified to reflect site specific conditions,
or other scientifically defensible methods, or establish narrative
criteria where numerical criteria cannot be determined, or to
supplement narrative criteria.
Currently, EPA guidance has specified three procedures for States
and Tribes to follow in deriving site-specific criteria. These are the
Recalculation Procedure, the Water-Effect Ratio Procedure and the
Resident Species Procedure. These procedures can be found in the Water
Quality Standards Handbook (EPA-823-B940005a, 1994). There is not
currently any specific guidance for the development of site-specific
criteria for the protection of human health, although the Agency is
developing options for such guidance which it expects to include in the
proposed revisions to the Methodology for Deriving Ambient Water
Quality Criteria for the Protection of Human Health, expected in early
1998. EPA also recognizes there may be naturally occurring
concentrations of pollutants which may exceed the national criteria
published under section 304(a) of the CWA, and has issued policy
guidance on establishing site specific aquatic life criteria equal to
natural background. (Memo from Tudor T. Davies, Director, Office of
Science and Technology to the Regional Water Management Division
Directors, and State and Tribal Water Quality Management Program
Directors, dated 11/5/97)
C. Variances
Water quality standards variances are another alternative which can
provide a facility with a limited period of time to comply with water
quality standards. EPA recognizes that Alabama has chosen not to
include a variance procedure in its State standards. Such procedures
have, however, been adopted in many States and been approved by EPA.
The Agency is providing an explanation of this procedure as additional
information the public may find useful, and as discussed below, the
proposed rule contains a federal variance procedure.
EPA believes variances are particularly suitable when the cause of
unattainment is discharger-specific and/or it appears that the
designated use in question will eventually be attainable. EPA has
approved the granting of water quality standards variances by States in
circumstances which would otherwise justify changing a use designation
on grounds of unattainability (i.e., the six circumstances contained in
40 CFR 131.10(g)). In contrast to a change in standards which removes a
use designation for a water body, a water quality standards variance
can apply only to the discharger to whom it is granted and only to the
pollutant parameter(s) upon which the finding of unattainability was
based; the underlying standard remains in effect for all other
purposes.
For example, if a designated aquatic life use is currently
precluded because of high levels of metals from past mining activities
which cannot be remediated in the short term, but it is expected that
water quality will eventually improve, a temporary variance may be
granted to a discharger with relaxed criteria for such metals, until
remediation progresses and the use becomes attainable. The practical
effect of such a variance is to allow a permit to be written using less
stringent criteria, while encouraging ultimate attainment of the
underlying standard. A water quality standards variance provides a
mechanism for assuring compliance with sections 301(b)(1)(C) and
402(a)(1) of the CWA that require NPDES permits to meet applicable
water quality standards, while granting temporary relief to point
source dischargers.
While 40 CFR 131.13 allows States to adopt variance procedures for
State-adopted water quality standards, such State procedures may not be
used to
[[Page 10809]]
grant variances from federally adopted standards. EPA believes that it
is appropriate to provide comparable federal procedures where, as
proposed here, EPA adopts use designations which rely, at least in
part, on a rebuttable presumption that fishable/swimmable uses are
attainable or adopts more stringent criteria for the State's use
designations. Therefore, EPA is proposing to authorize the Region 4
Regional Administrator to grant water quality standard variances where
a permittee submits data indicating that an EPA-designated use is not
attainable for any of the reasons in 40 CFR 131.10(g). This variance
procedure will apply to standards promulgated by EPA for the specific
stream segments named in today's proposal.
Today's proposed rule spells out the process for applying for and
granting such variances. The Administrator is delegating to the
Regional Administrator the authority to propose and grant these
variances. This delegation should expedite the processing of variance
requests. EPA is proposing to use informal adjudication processes in
reviewing and granting variance requests. That process is contained in
40 CFR 131.34(b)(4) of today's proposed rule. Because water quality
standard variances are technically revised water quality standards, the
proposal provides that the Regional Administrator will provide public
notice of the proposed variance and provide for an opportunity for
public comment. EPA understands that variance related issues can often
arise in the context of permit issuance. EPA Region 4 will seek to work
closely with the State permitting authorities to ensure that variance
requests will be considered in tandem with the State NPDES permitting
process.
The proposed variance procedures require an applicant for a water
quality standards variance to submit a request to the Regional
Administrator (or his delegatee) with supporting information.
The burden is on the applicant to demonstrate to EPA's satisfaction
that the designated use is unattainable for one of the reasons
specified in 40 CFR 131.10(g). A variance may not be granted if the use
could be attained, at a minimum, by all dischargers implementing
effluent limitations required under sections 301(b) and 306 of the CWA
and the applicant implementing reasonable best management practices for
nonpoint source control.
Under the proposal, a variance may not exceed 3 years or the term
of the NPDES permit, whichever is less. A variance may be renewed if
the permittee demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if EPA finds that the
conditions of 40 CFR 131.10(g) are not met.
EPA is soliciting comment on the need for a variance process for
EPA-promulgated use designations, the appropriateness of the particular
procedures proposed today, and whether the proposed variance procedures
are sufficiently detailed.
D. Total Maximum Daily Loads (TMDLs)
State development of TMDLs are also an alternative approach for
allocating loads of pollutants and ensuring attainment of designated
uses in these water bodies. Section 303(d) of the CWA and its
implementing regulations establish the TMDL process to provide a
mechanism for allocating more stringent water quality-based
requirements when technology-based-controls are inadequate to achieve
State water quality standards. The TMDL process can broaden the
opportunity for public participation, expedite water quality based
NPDES permitting, and lead to technically sound and legally defensible
decisions for attaining and maintaining water quality standards. In
addition, the TMDL process provides a mechanism for integrating the
management of both point and nonpoint pollution sources that together
may contribute to a water body's impairment. (See Guidance for Water
Quality-based Decisions: The TMDL Process, EPA 440-4-91-001, April
1991)
V. Regulatory Impact Analysis
As explained more fully below in section VII. (Regulatory
Flexibility Act), EPA's proposed rule does not itself establish any
requirements directly applicable to regulated entities. While
implementation of today's proposed rule may ultimately result in some
new or revised permit conditions for some dischargers, EPA's action
today does not impose any of these as yet unknown requirements on
dischargers. Nonetheless, EPA is attempting, within the limits of these
uncertainties, to make an estimate of the possible indirect costs which
might ultimately result from this rulemaking.
The following is a summary of the proposed methodology being used
for the regulatory impact analysis (RIA) prepared for this proposed
rule. Further discussion is included in the full RIA, which is included
in the docket as part of this rulemaking.
In the time prior to proposal EPA attempted to assess, to the best
of its ability, compliance costs for facilities that could eventually
be indirectly affected by the designated uses of today's proposed rule.
As described below, EPA searched available data sources in order to
estimate as accurately as possible these potential costs. Although the
costs are not expected to be significant, EPA has developed a
methodology to estimate the potential indirect cost impacts on
facilities discharging pollutants to waters subject to the numeric
water quality criteria and uses established by this proposal.
However, because of data limitations, EPA's methodology and
analysis is restricted to estimating costs associated with controls to
reduce pollutants from industrial and municipal point source discharges
in the nine stream segments covered by today's proposal. As such, EPA's
methodology is unable to directly take into account the use of more
cost-effective ``best management practices and control technologies''
that could be applied to other point sources (e.g., storm water
outfalls) and nonpoint sources (e.g., runoff from agricultural and
animal farming operations) that would improve water quality and reduce
or possibly eliminate treatment costs for these industrial and
municipal facilities.
EPA is soliciting public comment and supporting data on the
fourteen facilities and nine stream segments it evaluated as part of
the RIA, and on the methodology used to estimate costs associated with
implementation of the proposed rule, as well as information and data on
other point and nonpoint sources of pollution affecting the proposed
F&W stream segments. EPA will review the comments and data provided by
the public as well as any information and data it gathers during the
public comment period, and will revise as necessary, the potential
costs to facilities as an indirect result of attaining uses proposed in
this rule. EPA will include this information as part of the final
rulemaking.
A. Evaluation of Possible Pollutant Reduction Responsibilities
As explained previously, in proposing F&W Use designations for the
9 stream segments in today's proposal, EPA recognizes that, in certain
cases, contributions from point and nonpoint sources may be impacting
existing water quality. The State of Alabama has considerable
discretion in determining how to allocate pollutant load reductions in
order to achieve applicable water quality standards (see discussion of
TMDLs, above). In many cases, the most efficient and cost-effective
means of reducing pollutant discharges may be through controls of
[[Page 10810]]
nonpoint source contributions instead of requiring point sources to
bear the brunt of the responsibility for meeting water quality
standards in the water body. Indeed, when faced with the possibility of
imposing significant treatment costs on point sources, EPA believes
that all other feasible alternatives for achieving the CWA's goals
should be fully explored.
For purposes of the RIA, however, EPA has effectively made the
``worst-case'' assumption from a costing perspective under its high-end
scenario that point sources in the segments covered by this rule will
bear full responsibility for bringing about any pollutant reductions
that would be associated with meeting criteria applicable to the F&W
Use designation for these waters. EPA made this assumption not because
it believes that the State should choose to exercise its discretion in
this fashion. Indeed, EPA would fully anticipate that the State would
seek to rationally apportion any pollutant reduction responsibilities
in a more cost-effective manner. Rather, EPA took this approach first
because detailed information was not available regarding nonpoint
source pollutant contributions to these waters and the measures that
could reduce such nonpoint source loadings. Second, EPA wanted to
ensure that the impacts to point sources located in these nine stream
segments would be subject to complete analysis by the Agency and review
by the public. The Agency believes that this approach ensures fully
informed decision-making about possible worst-case impacts from the
proposed rule. Thus, while it is conceivable that the costs described
below could be incurred by point source discharges indirectly affected
by the rule, it should not be assumed that such costs would actually be
incurred. If EPA finalizes these use designations, the Agency will work
closely with the State to ensure that responsibilities for meeting
water quality standards are rationally apportioned among the sources of
pollution. As discussed above in section IV., various options for
regulatory alternatives and implementation mechanisms are available.
B. Overview of Methodology to Estimate Potential Costs Related to New
Use Designations
The use designations being proposed by EPA, by themselves, will
have no impact or effect. However, when the Alabama water quality
criteria to protect these uses are applied to dischargers through the
National Pollutant Discharge Elimination System (NPDES) permit program,
then costs may be incurred by regulated entities (i.e., point source
dischargers) but these costs can vary significantly because of the wide
range of control strategies available to dischargers. Due to the
flexibility and discretion available in implementing water quality
criteria, analysis of all potential costs would be difficult to perform
for all potentially affected entities. EPA attempted to estimate the
potential costs attributable to the proposal by developing detailed
cost estimates for the 14 point source dischargers that may be impacted
by the proposed rule. The following discussion addresses the approach
that EPA used and is planning to follow as more data are obtained
through the public comment and rulemaking process.
The actual impact of the proposed rule will depend upon (1) the
procedures and policy decisions that will be established by the
permitting authority to implement the rule, and (2) the control
strategy the discharger selects in order to bring the facility into
compliance. The procedures and policy decisions established by the
permitting authority typically provide the methods to determine the
need for water quality-based effluent limits (WQBELs) and, if WQBELs
are required, how to derive WQBELs from applicable water quality
criteria. The implementation procedures used to derive WQBELs for this
analysis were based on the methods recommended in the EPA ``Technical
Support Document for Water Quality-based Toxics Control'' (or TSD) EPA/
505/2-90-001; March 1991). Specifically, a projected effluent quality
(PEQ) was calculated and compared to the projected WQBEL. A PEQ is
considered an effluent value statistically adjusted for uncertainty to
estimate a maximum value that may occur.
For each facility, EPA performed an evaluation of reasonable
potential to exceed WQBELs based on applicable water quality criteria
to protect the proposed federal use designations (i.e., fish and
wildlife). EPA considered any pollutant for which water quality
criteria existed and for which data were available. EPA assumed that
reasonable potential existed if a permit limit for the pollutant of
concern was included in the existing permit for the facility. In the
absence of a permit limit, but where monitoring data were available,
EPA evaluated reasonable potential based on the monitoring data and the
procedures contained in the TSD. To account for the possible effect of
the oxygen demand potential from these facilities, EPA assumed that any
discharger with a permit limit for dissolved oxygen, biochemical oxygen
demand, or chemical oxygen demand had a reasonable potential to exceed
the dissolved oxygen criteria.
To calculate WQBELs, EPA used the TSD procedures to derive maximum
daily and monthly average limits. Background concentrations were based
on the average of data contained in STORET for upstream monitoring
stations (including nearby tributaries); in the absence of background
data, EPA assumed the background value to be zero. Critical low flows
were extracted from the NPDES permit files or calculated from data
contained in the United States Geological Survey (USGS) Daily Flow file
data base for nearby gage stations. As required in Chapter 335 of the
Alabama Department of Environmental Management Regulations, the 7-day,
10-year low flow (7Q10) was used for chronic aquatic life protection.
In the absence of stream flow data, EPA conservatively assumed zero low
flow. Once WQBELs were derived, EPA derived cost estimates that
represent the cost to remove the incremental amount of pollutant(s) to
levels needed to comply with WQBELs.
Prior to estimating compliance costs, an engineering analysis of
how each facility could comply with the projected WQBEL was performed.
The costs were then estimated based on the decisions and assumptions
made in the analysis. To ensure consistency and reasonableness in
estimating the general types of controls that would be necessary for a
facility to comply with the proposal (assuming that implementation of
the rule resulted in more stringent discharge requirements), as well as
to integrate into the cost analysis the other alternatives available to
regulated facilities, a costing decision matrix was used for each
facility. Specific rules were established in the matrix to provide the
reviewing engineers with guidance for consistently selecting options.
Under the decision matrix, costs for minor treatment plant
operation and facility changes were considered first. Minor, low-cost
modification or adjustment of existing treatment was determined to be
feasible where literature indicated that the existing treatment process
could achieve the projected WQBEL and where the additional pollutant
reduction was relatively small (e.g., 10 to 25 percent of current
discharge levels).
Where it was not technically feasible to simply adjust existing
operations, the next most attractive control strategy was determined to
be waste minimization/pollution prevention controls. However, costs for
these controls were estimated only where they were considered feasible
based on the reviewing
[[Page 10811]]
engineer's understanding of the process(es) at a facility. The
practicality of techniques was determined based on several criteria
established in the decision matrix. Decision considerations included
the level of pollutant reduction achievable through waste minimization/
pollution prevention techniques, appropriateness of waste minimization/
pollution prevention for the specific pollutant, and knowledge of the
manufacturing processes generating the pollutant of concern.
If waste minimization/pollution prevention alone was deemed not
feasible to reduce pollutant levels to those needed to comply with the
F&W-based WQBELs, a combination of waste minimization/pollution
prevention, simple treatment, and/or process optimization was
considered. If these relatively low-cost controls could not achieve the
projected WQBELs, more expensive controls (e.g., end-of-pipe treatment)
were considered.
The decision to add new treatment systems or to supplement existing
treatment systems was based on a review of existing treatment at each
facility. For determining the need for additional or supplemental
treatment, sources of performance information included the EPA Office
of Research and Development (ORD), Risk Reduction Engineering
Laboratory's ``RREL Treatability Database'' (Version 4.0). The
pollutant removal capabilities of the existing treatment systems and/or
any proposed additional or supplemental systems were evaluated based on
the following criteria: (1) The effluent levels that were being
achieved currently at the facility; and (2) the levels that are
documented in the EPA ``RREL Treatability Database.'' If this analysis
showed that additional treatment was needed, unit processes that would
achieve compliance with the projected WQBELs were chosen using the same
documentation.
Due to the uncertainty of the State's approach to implementation at
this time, a range of costs was developed to represent a potential
range of impacts based on certain implementation assumptions. The
following generally describes how the low-and high-end of the range of
costs were developed for this study.
Under the low-end cost scenario, if the F&W-based permit limit was
more stringent than existing effluent concentrations, costs were
estimated for the incremental pollutant reductions required to achieve
the F&W-based limit. In the absence of any monitoring data, it was
assumed that no impact would occur even if a permit limit exists that
is less stringent than the F&W-based permit limit. (It was assumed that
if a permitted facility was not monitoring for a pollutant, it was not
expected to be present in the effluent.) If monitoring data were
available, but all values were reported below analytical detection
levels, it was assumed that no costs would occur. Finally, if the
estimated annualized cost for removal of a pollutant exceeded $200 per
toxic pounds-equivalent, it was assumed that dischargers would explore
the use of alternative regulatory approaches. When it was assumed that
facilities would pursue regulatory alternatives, no treatment cost was
estimated for a facility. However, costs associated with the pursuit of
the regulatory alternative were estimated for the facility and included
in the total estimated costs for the proposal.
Under the high-end cost scenario, if the F&W-based permit limit was
more stringent than the existing permit limit (or detectable effluent
concentration in the absence of a permit limit), costs were estimated
for the incremental pollutant reductions required to achieve the F&W-
based limit. If there were no permit limit and all monitored values
were reported below analytical detection levels, it was assumed that no
impacts would occur. Finally, acknowledging that opportunities for the
use of alternative regulatory approaches may be limited depending upon
the particular circumstances for a facility, it was assumed that no
alternative regulatory approaches would be allowed, and therefore, the
$200 per toxic pounds-equivalent trigger was removed from the decision
matrix for the high-end cost scenario.
The $200 per toxic pounds-equivalent trigger should not be
construed as an absolute measure of when a facility should pursue
regulatory alternatives or be granted relief from installing additional
treatment. This trigger, based on the one used for the low-end in the
EPA Assessment of Compliance Costs Resulting from Implementation of the
Final Great Lakes Water Quality Guidance (March 13, 1995), was used to
establish the low-end of a potential range of costs that reflects the
flexibility available when implementing and complying with water
quality-based permit limits. EPA acknowledges that some additional
treatment costs could result from the rule for a facility, even if a
regulatory alternative is granted for an individual pollutant. This
could occur since some incremental level of treatment could be required
as a condition of the action to grant the regulatory alternative.
Therefore, the actual cost of this rule is expected to fall somewhere
between the low-and high-end cost estimates. For this proposed action,
EPA believes the actual cost will most likely occur below the mid-point
of the estimated cost range because, as described earlier, EPA's
methodology did not account for more cost-effective best management
practices and control technologies that could be applied to other
upstream and in-segment point and nonpoint sources of pollution to
reduce or possibly eliminate treatment costs associated with industrial
and municipal facilities discharging directly to stream segments
covered by today's proposal.
C. Results for Stream Segments With Federal Use Designations
EPA identified 14 facilities that possess NPDES permits to
discharge to stream segments with specific use designations for which
new use designations are being proposed in this rule. Of these 14
facilities, 11 are classified as major dischargers, and 3 are
classified as minor dischargers. The following table presents the
universe of facilities EPA analyzed for today's proposed rulemaking.
Summary of Dischargers To Stream Segments With Proposed Federal Use Designations
----------------------------------------------------------------------------------------------------------------
Major (M)/
Stream Segment Facility name NPDES permit number minor (m) SIC code*
discharger
----------------------------------------------------------------------------------------------------------------
Buck Creek...................... Alabaster WWTP......... AL0002801 M 4952
Cane Creek (Oakman Segment)..... Oakman WWTP............ AL0025348 m 4952
Chickasaw Creek................. Chickasaw Lagoon....... AL0020885 M 4952
Chickasaw Creek................. Occidental Chemical.... AL0003514 M 2812
[[Page 10812]]
Chickasaw Creek................. Shell Oil Company...... AL0055859 M 2911
Chickasaw Creek................. UOP Molecular Sieve.... AL0002666 M 2819
Flint Creek..................... Hartselle WWTP......... AL0054640 M 4952
Lost Creek...................... Carbon Hill WWTP....... AL0024341 m 4952
Mobile River.................... International Paper-- AL0002780 M 2621
Mobile Mill.
Mobile River.................... Kimberly Clark Tissue.. AL0002801 M 2621
Three Mile Creek................ City of Mobile (Smith AL0023094 M 4952
WWTP).
Three Mile Creek................ Cavenham Forest AL0001104 m 2491
Industries.
Three Mile Creek................ City of Prichard AL0023205 M 4952
(Carlos A. Morris
WWTP).
Town and Cane (Jasper Segment) Jasper WWTP............ AL0023418 M 4952
Creeks.
----------------------------------------------------------------------------------------------------------------
* Standard Industrial Classification (SIC) Code.
Based on evaluation of the facilities that may be impacted, EPA
estimates that the total potential cost resulting from new designations
for the above nine stream segments will range from $1.6 million to
$14.7 million. Under the low-end, the annual costs for individual
facilities ranged from $0 (i.e., no projected impact) to just over
$780,000. Under the low-end, four facilities were assumed to pursue
alternative regulatory approaches. Under the high-end, the annual costs
for individual facilities ranged from $0 (i.e., no projected impact) to
over $8.6 million. Under the high-end, no facilities were assumed to
pursue alternative regulatory approaches.
The total baseline pollutant load for the 14 facilities is
approximately 240,000 toxic pound-equivalents per year (pollutant toxic
weights were derived using the EPA criterion for copper, 5.6 micrograms
per liter, as the standardization factor). The pollutant load reduction
under the low-end scenario is 20 percent or about 47,500 toxic pound-
equivalents per year. Mercury accounts for over 99 percent of the total
pollutant load reduction under the low-end. Under the high-end
scenario, the pollutant load reduction is over 90 percent or over
218,000 toxic pound-equivalents per year. Mercury and chromium (VI)
account for over 98 percent of the total pollutant load reduction under
this scenario.
The overall cost-effectiveness is estimated to be $34 per toxic
pound-equivalent and $67 per toxic pound-equivalent for the low-and
high-end scenarios, respectively. Pollutant load reductions associated
with implementation of the proposed rule do not include estimates of
load reductions from controls to comply with applicable Alabama
dissolved oxygen criteria. Although costs were estimated for these
controls and included in the estimated compliance costs for the
proposal, the absence of toxic weights for dissolved oxygen prohibited
calculation of toxic-weighted pollutant load reductions for this
pollutant. As such, the cost-effectiveness for this proposal is
significantly better than estimated above, which only accounts for
loads reduced for toxic pollutants (e.g., mercury, lead and cadmium).
The estimated costs and load reductions by pollutant, including those
associated with compliance with the dissolved oxygen criteria, are
presented below.
----------------------------------------------------------------------------------------------------------------
Low-end scenario High-end scenario
---------------------------------------------------
Load Load
Pollutant Annual reduction Annual reduction
costs (lbs-eq/ costs (lbs-eq/
year) year)
----------------------------------------------------------------------------------------------------------------
Dissolved Oxygen............................................ $574,122 *406,905 $3,775,568 *1,374,413
Cadmium..................................................... 51,362 77 1,773,735 1,685
Chromium (VI)............................................... 7,239 0 1,720,120 26,325
Lead........................................................ 61,034 340 1,916,628 2,066
Mercury..................................................... 897,616 47,086 4,747,721 188,436
Zinc........................................................ 9,864 0 749,197 199
----------------------------------------------------------------------------------------------------------------
*Pollutant load reductions for dissolved oxygen are presented as pounds of BOD reduced each year. Since a toxic
weight does not exist for either dissolved oxygen or BOD, toxic-weighted load reductions could not be
estimated and included in the total estimated pollutant load reduction for the proposal.
Under the low-end scenario, capital and operation & maintenance
(O&M) costs account for over 75 percent of the total costs, and costs
associated with pursuit of alternative regulatory approaches account
for just over 12 percent of the annual costs. Under the high-end
scenario, capital and O&M costs account for over 97 percent of the
total costs. Under the low-end, which assumed that more aggressive
controls on indirect dischargers would be utilized (as compared to end-
of-pipe treatment under the high-end), waste minimization costs
accounted for 8 percent of the total estimated annual costs. Under the
high-end, waste minimization costs account for 2 percent of the total
annual costs. Under both scenarios, monitoring costs account for less
than 1 percent.
EPA is requesting comments, data, and information for the 14
facilities that could assist EPA in evaluating the potential costs to
these facilities, including, but not limited to, descriptions of
existing treatment systems and pollutant control systems; pollutants
expected in effluent discharge; long-term average pollutant effluent
concentrations; long-term average receiving water pollutant
concentrations; and critical low flow
[[Page 10813]]
values for receiving water stream segments.
While EPA was only able to gather limited economic information on
the affected facilities in the time allowed for this proposal, this
information and EPA's regulatory impact analysis did not support a
finding that the uses in today's rule are not attainable. EPA's
analysis indicated that under the high-end scenario two facilities
could potentially incur relatively higher costs when compared to the
other 12 facilities subject to today's rule. In particular, EPA is
concerned about the level of treatment estimated under the high-end
scenario that may be required of municipal facilities discharging to
Three Mile and Chickasaw Creek if regulatory alternatives such as TMDLs
and site-specific criteria are not pursued. It is reasonable to expect,
however, that the State or affected municipalities will not ignore
regulatory alternatives and implementation options that could, if
pursued, substantially reduce the costs to facilities discharging to
streams covered by today's proposal.
In addition, EPA is also concerned about the levels of mercury
being discharged into Chickasaw Creek. If the limited mercury data are
accurate, these levels could present a significant risk to individuals
fishing and recreating in this watershed. EPA suspects that the limited
discharge data on mercury are inaccurate because the information for
one municipal facility indicates that it may be discharging mercury at
levels over 1,000 times higher than effluent concentrations observed by
EPA using ``clean'' analytical detection methods. EPA will work with
the State to further evaluate the validity of the data.
EPA could not conclude based on the information gathered prior to
proposal that costs estimated for this action are not justified or
would result in widespread social and economic impact. Should such
information become available for any of the facilities, the Agency
would consider this information for the final rule. EPA is committed to
working with the State and the various stakeholders affected by this
rule to ensure protection of public health and the environment, and
that costs remain reasonable.
VI. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), EPA
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, or 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 or 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.
It has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of Executive Order
12866, and is therefore not subject to OMB review.
VII. Regulatory Flexibility Act as Amended by the Small Business
Regulatory Enforcement Fairness Act of 1996
Under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.),
federal agencies generally are required to conduct an initial
regulatory flexibility analysis (IRFA) describing the impact of the
regulatory action on small entities as part of a proposed rulemaking.
However, under section 605(b) of the RFA, if the Administrator for the
agency certifies that the proposed rule will not have a significant
economic impact on a substantial number of small entities, the agency
is not required to prepare an IRFA. The Administrator is today
certifying, pursuant to section 605(b) of the RFA, that this proposed
rule will not have a significant economic impact on a substantial
number of small entities. Therefore, the Agency did not prepare an
initial regulatory flexibility analysis.
Under the CWA water quality standards program, states must adopt
water quality standards for their waters that must be submitted to EPA
for approval; if the Agency disapproves a State standard and the State
does not adopt appropriate revisions to address EPA's disapproval, EPA
must promulgate standards consistent with the statutory requirements.
EPA has authority to promulgate criteria or standards in any case where
the Administrator determines that a revised or new standard is
necessary to meet the requirements of the Act. These State standards
(or EPA-promulgated standards) are implemented through various water
quality control programs including the National Pollutant Discharge
Elimination System (NPDES) program that limits discharges to navigable
waters except in compliance with an EPA permit or permit issued under
an approved State program. The CWA requires that all NPDES permits must
include any limits on discharges that are necessary to meet State water
quality standards.
Thus, under the CWA, EPA's promulgation of water quality standards
establishes standards that the State implements through the NPDES
permit process. The State has discretion in deciding how to meet the
water quality standards and in developing discharge limits as needed to
meet the standards. While the State's implementation of federally-
promulgated water quality standards may result in new or revised
discharge limits being placed on small entities, the standards
themselves do not apply to any discharger, including small entities.
Today's proposed rule, as explained above, does not itself
establish any requirements that are applicable to small entities. As a
result of this action, the State of Alabama will need to ensure that
permits it issues include any limitations on discharges necessary to
comply with the standards established in the final rule. In doing so,
the State will have a number of discretionary choices associated with
permit writing. While Alabama's implementation of the final rule may
ultimately result in some new or revised permit conditions for some
dischargers, including small entities, EPA's action today does not
impose any of these as yet unknown requirements on small entities.
The RFA requires analysis of the impacts of a rule on the small
entities subject to the rule's requirements. See United States
Distribution Companies v. FERC, 88 F.3d 1105, 1170 (D.C. Cir. 1996).
Today's proposed rule establishes no requirements applicable to small
entities, and so is not susceptible to regulatory flexibility analysis
as prescribed by the RFA. (``[N]o [regulatory flexibility] analysis is
necessary when an agency determines that the rule will not have a
significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule,'' United Distribution
at 1170, quoting Mid-Tex Elec. Co-op v. FERC, 773 F.2d 327, 342 (D.C.
Cir. 1985) (emphasis added by United Distribution court).) The Agency
is thus certifying that today's proposed rule will not have a
significant economic impact on a substantial number of small entities,
within the meaning of the RFA.
[[Page 10814]]
VIII. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal Mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of the affected small governments to have meaningful and
timely input in the development of EPA regulatory proposals with
significant Federal intergovernmental mandates, and informing,
educating, and advising small governments on compliance with the
regulatory requirements.
Today's proposed rule contains no federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local or
Tribal governments or the private sector. The proposed rule imposes no
enforceable duty on the State or any local government or the private
sector; rather, this rule proposes designated uses for certain stream
segments of Alabama, which, when combined with State adopted water
quality criteria constitute water quality standards for those stream
segments. The State may use these resulting water quality standards in
implementing its water quality control programs. Today's proposed rule
does not regulate or affect any entity and therefore, is not subject to
the requirements of sections 202 and 205 of the UMRA.
EPA has determined that this proposed rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. As stated above, the rule imposes no enforceable
requirements on any party, including small governments. Moreover, any
water quality standards, including those proposed here, apply broadly
to dischargers and are not uniquely applicable to small governments.
Thus, this proposed rule is not subject to the requirements of section
203 of UMRA.
IX. Paperwork Reduction Act
This action requires no new or additional information collection
activities subject to the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.). Therefore, no Information Collection request will be submitted
to the Office of Management and Budget for review in compliance with
the Paperwork Reduction Act.
X. Executive Order 12875
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a State, local
or Tribal government unless the Federal Government provides the
necessary funds to pay the direct costs incurred by the State, local or
Tribal government or EPA provides to the Office of Management and
Budget a description of the extent of the prior consultation and
written communications with representatives of affected State, local
and Tribal governments and an Agency statement supporting the need to
issue the regulation. In addition, Executive Order 12875 requires EPA
to develop an effective process permitting elected officials and other
representatives of State, local and Tribal governments ``to provide
meaningful and timely input in the development of regulatory proposals
containing significant unfunded mandates.''
For the same reasons as stated above in section VIII., EPA has
determined this proposed rule does not impose federal mandates on
State, local or Tribal governments. Moreover, this rulemaking proposal
is required by statute. See CWA 303(c)(4) (requiring the Administrator
to promptly propose regulations setting forth revised or new water
quality standards where the Agency has disapproved State standards as
being inconsistent with the Act). Thus today's proposed rule is not
subject to E.O. 12875.
Nonetheless, EPA has involved State and local governments in the
development of this rule. Prior to this proposed rulemaking action, EPA
had numerous phone calls, meetings and exchanges of written
correspondence with representatives of Alabama's Division of
Environmental Management to discuss EPA's concerns with the State's
water quality standards, possible remedies for addressing the
disapproved sections of the water quality standards, the use
designations in today's proposal and the federal rulemaking process.
The data and descriptive information from these exchanges was essential
to evaluating and analyzing the attainment of use designations for the
nine stream segments in today's proposal. In addition, EPA issued a
notice in the Federal Register on January 29, 1997, requesting
information from the public on specific streams in Alabama, and held a
public hearing in Montgomery, Alabama on February 26, 1997. EPA will
continue to work with affected parties before finalizing these water
quality standards for Alabama.
EPA has scheduled a public hearing on April 22, 1998, in
Montgomery, Alabama. EPA's public notification process is targeting
parties across a wide range of interests, both within and outside of
government, to ensure them the opportunity for involvement. For
additional information contact the person listed under the For
Additional Information Contact section at the beginning of this
preamble.
XI. Endangered Species Act
Section 7 of the Endangered Species Act (ESA) requires federal
agencies, in consultation with the U.S. Fish and Wildlife Service (FWS)
and National Marine Fisheries Service (NMFS), to ensure their actions
are not likely to jeopardize the continued existence of any listed
species or result in the destruction or adverse modification of habitat
of such species which have been designated as ``critical.''
Consultation is designed to assist federal agencies in complying with
the requirements of section 7 by supplying a process within which FWS
and NMFS provide such agencies with advice and guidance on whether an
action complies with the substantive requirements of ESA.
As a result of consultation under section 7 of the ESA between EPA
and FWS, the FWS issued a biological opinion dated October 8, 1997
regarding the State of Alabama's Water Quality Standards program. The
opinion determined that the Alabama water quality standards program is
not likely to jeopardize the continued existence of listed species, or
result in the destruction or adverse modification of species' critical
habitat. The opinion also concluded that the standards will
[[Page 10815]]
result in ``take'' of listed species, including water bodies classified
with the Fish and Wildlife use. An Incidental Take Statement was issued
with the opinion that authorizes ``take'' associated with the Alabama
Water Quality Standard program. Within the body of the opinion, the FWS
stated that:
Any reclassification and/or classification of uses to less than
fishable/swimmable in stream segments harboring listed species would
be subject to section 7 (of the ESA) consultation on a case-by-case
basis, and would include an evaluation of the appropriateness of
criteria values at that time. (page 29)
In a letter dated June 5, 1997, the Fish and Wildlife Service
notified EPA that further consultation will not be necessary for
actions establishing F&W use designations for Alabama stream segments.
In today's proposed federal rulemaking, EPA is proposing F&W use
designations for nine stream segments.
XII. National Technology Transfer and Advancement Act
Under section 12(d) of the National Technology Transfer and
Advancement Act (NTTAA), the Agency is required to use voluntary
consensus standards in its regulatory activities unless to do so would
be inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office and Management and Budget, an explanation
of the reasons for not using such standards.
The Agency does not believe that this proposed rule addresses any
technical standards subject to the NTTAA. A commenter who disagrees
with this conclusion should indicate how today's notice is subject to
the NTTAA and identify any potentially applicable voluntary consensus
standards.
List of Subjects in 40 CFR Part 131
Environmental protection, Intergovernmental relations, Water
pollution control.
Dated: February 27, 1998.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, EPA proposes to amend 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.
Subpart D--[Amended]
2. Section 131.34 is added to read as follows:
Sec. 131.34 Alabama.
(a) Use designations for surface waters. In addition to the State
adopted use designations, the following water body segments in Alabama
have the beneficial uses designated in paragraph (a) of this section.
----------------------------------------------------------------------------------------------------------------
Basin Stream Segment From To Classification
----------------------------------------------------------------------------------------------------------------
CAHABA.......................... Buck Creek........ Cahaba Valley Shelby Co. Road 44 FISH&WILDLIFE.
Creek.
MOBILE BAY...................... Chickasaw Creek... Mobile River...... Limits of Tidal FISH&WILDLIFE.
Effects (Highway
43).
MOBILE BAY...................... Mobile River...... Its Mouth......... Spanish River..... FISH&WILDLIFE.
MOBILE BAY...................... Three Mile Creek.. Mobile River...... Its Source........ FISH&WILDLIFE.
TENNESSEE....................... Flint Creek....... Alabama Highway 36 Shoal Creek....... FISH&WILDLIFE.
WARRIOR......................... Cane Creek Mulberry Fork..... Town Creek........ FISH&WILDLIFE.
(Jasper).
WARRIOR......................... Cane Creek County Road 2.5 Alabama Highway 69 FISH&WILDLIFE.
(Oakman). Miles Southeast
of Oakman.
WARRIOR......................... Lost Creek........ Downey Branch..... US Highway 78 FISH&WILDLIFE.
crossing one mile
southeast of
Carbon Hill.
WARRIOR......................... Town Creek........ Cane Creek 100 Yards Upstream FISH&WILDLIFE.
(Jasper). of Southern
Railway Crossing
(1.1 Miles
Upstream of Cane
Creek).
----------------------------------------------------------------------------------------------------------------
(b) Water quality standard variances. (1) The Regional
Administrator, EPA Region 4, is authorized to grant variances from the
water quality standards in paragraph (a) of this section where the
requirements of this paragraph (b) are met. A water quality standard
variance applies only to the permittee requesting the variance and only
to the pollutant or pollutants specified in the variance; the
underlying water quality standard otherwise remains in effect.
(2) A water quality standard variance shall not be granted if:
(i) Standards will be attained by implementing effluent limitations
required under sections 301(b) and 306 of the CWA and by the permittee
implementing reasonable best management practices for nonpoint source
control; or
(ii) The variance would likely jeopardize the continued existence
of any threatened or endangered species listed under section 4 of the
Endangered Species Act or result in the destruction or adverse
modification of such species' critical habitat.
(3) Subject to paragraph (b)(2) of this section, a water quality
standards variance may be granted if the applicant demonstrates to EPA
that attaining the water quality standard is not feasible because:
(i) Naturally occurring pollutant concentrations prevent the
attainment of the use; or
(ii) Natural, ephemeral, intermittent or low flow conditions or
water levels prevent the attainment of the use, unless these conditions
may be compensated for by the discharge of sufficient volume of
effluent discharges without violating State water conservation
requirements to enable uses to be met; or
(iii) Human caused conditions or sources of pollution prevent the
attainment of the use and cannot be remedied or would cause more
environmental damage to correct than to leave in place; or
[[Page 10816]]
(iv) Dams, diversions or other types of hydrologic modifications
preclude the attainment of the use, and it is not feasible to restore
the water body to its original condition or to operate such
modification in a way which would result in the attainment of the use;
or
(v) Physical conditions related to the natural features of the
water body, such as the lack of a proper substrate, cover, flow, depth,
pools, riffles, and the like unrelated to water quality, preclude
attainment of aquatic life protection uses; or
(vi) Controls more stringent than those required by sections 301(b)
and 306 of the CWA would result in substantial and widespread economic
and social impact.
(4) Procedures. An applicant for a water quality standards variance
shall submit a request to the Regional Administrator of EPA Region 4.
The application shall include all relevant information showing that the
requirements for a variance have been satisfied. The burden is on the
applicant to demonstrate to EPA's satisfaction that the designated use
is unattainable for one of the reasons specified in paragraph (b)(3) of
this section. If the Regional Administrator preliminarily determines
that grounds exist for granting a variance, he shall provide public
notice of the proposed variance and provide an opportunity for public
comment. Any activities required as a condition of the Regional
Administrator's granting of a variance shall be included as conditions
of the NPDES permit for the applicant. These terms and conditions shall
be incorporated into the applicant's NPDES permit through the permit
reissuance process or through a modification of the permit pursuant to
the applicable permit modification provisions of Alabama's NPDES
program.
(5) A variance may not exceed 3 years or the term of the NPDES
permit, whichever is less. A variance may be renewed if the applicant
reapplies and demonstrates that the use in question is still not
attainable. Renewal of the variance may be denied if the applicant did
not comply with the conditions of the original variance, or otherwise
does not meet the requirements of this section.
[FR Doc. 98-5722 Filed 3-4-98; 8:45 am]
BILLING CODE 6560-50-U