[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.                
------------------------------------------------------------------------

    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