[Federal Register Volume 67, Number 205 (Wednesday, October 23, 2002)]
[Proposed Rules]
[Pages 65256-65270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26845]



[[Page 65255]]

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Part IV





Environmental Protection Agency





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40 CFR Part 131



Water Quality Standards for Alabama; Proposed Rule

  Federal Register / Vol. 67, No. 205 / Wednesday, October 23, 2002 / 
Proposed Rules  

[[Page 65256]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[FRL-7397-2]
RIN 2040-AD35


Water Quality Standards for Alabama

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to establish a designated use for a segment 
of Five Mile Creek in Alabama. If this proposal is promulgated as 
final, the Federal designated use will supersede the State's designated 
use that EPA disapproved in 1986 and 1991. EPA disapproved the State's 
designated use because it is inconsistent with the Clean Water Act and 
EPA's implementing regulations. Specifically, EPA is proposing a 
designated use for the protection of fish and wildlife.

DATES: EPA will accept public comments on this proposed rule until 
December 23, 2002. Comments postmarked after this date may not be 
considered. A public hearing will be held on December 12, 2002 from 2 
to 5 P.M. and from 7 to 9 P.M. Both oral and written comments will be 
accepted at the hearing.

ADDRESSES: Send your comments by mail to: Docket Manager, Proposed 
Water Quality Standards for Alabama, EPA, Region 4, Sam Nunn Atlanta 
Federal Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104, 
Attention Docket ID No. OW-2002-0023. Comments may also be submitted 
electronically, or through hand delivery/courier. Follow the detailed 
instructions as provided in Section I.C. of the SUPPLEMENTARY 
INFORMATION section. The public hearing will occur at the Sheraton 
Birmingham, 2101 Richard Arrington Jr. Boulevard North, Birmingham, 
Alabama, 35203.

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) or James Keating, U.S. EPA Headquarters, 
Office of Science and Technology, 1200 Pennsylvania Avenue NW, 
Washington, DC, 20460 (telephone: 202-566-0383).

SUPPLEMENTARY INFORMATION: This supplementary information section is 
organized as follows:

I. General Information
    A. Potentially Affected Entities
    B. How Can I Get Copies of This Document and Other Related 
Information?
    1. Docket
    2. Electronic Access
    C. How and to Whom Do I Submit Comments?
    1. Electronically
    2. By Mail
    3. By Hand Delivery or Courier
    D. What Should I Consider as I Prepare My Comments for EPA?
II. Background
    A. Statutory and Regulatory Background
    B. Current Alabama Water Quality Standards
    C. Factual Background
1. Summary of State and EPA Administrative Actions
2. Summary of Legal Actions
3. Recent State Actions on Use Designation for Five Mile Creek
III. Use Designation for Five Mile Creek in Alabama
A. Overview
B. Proposed Use Designation for Five Mile Creek
C. Request for Comment and Data
IV. Alternative Regulatory Approaches and Implementation Mechanisms
A. Designating Uses
B. Site-Specific Criteria
C. Variances
V. Economic Analysis
A. Method for Estimating Cost
B. Estimated Costs Associated with Fish & Wildlife (F&W) Use
C. Estimated Pollutant Loading Reductions Associated with F&W Use
VI. Executive Order 12866--Regulatory Planning and Review
VII. Executive Order 13045--Children's Health
VIII. Executive Order 13132--Federalism
IX. Executive Order 13175--Consultation and Coordination with Indian 
Tribal Governments
X. Executive Order 13211--Energy
XI. Paperwork Reduction Act
XII. Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996
XIII. Unfunded Mandates Reform Act
XIV. National Technology Transfer and Advancement Act
XV. Endangered Species Act
XVI. Plain Language

I. General Information

A. Potentially Affected Entities

    Citizens concerned with water quality in Alabama may be interested 
in this rulemaking. Facilities 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 water 
quality-based National Pollutant Discharge Elimination System (NPDES) 
permit limits. Categories and entities that may indirectly be affected 
include:

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                                          Examples of those potentially
               Category                             affected
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Industry..............................  Industries discharging
                                         pollutants to the segment of
                                         Five Mile Creek identified in
                                         Sec.   131.34.
Municipalities........................  Publicly-owned treatment works
                                         discharging pollutants to the
                                         segment of Five Mile Creek
                                         identified in Sec.   131.34.
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding NPDES facilities 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 affected. To determine 
whether your facility may be affected by this action, you should 
carefully examine the water body segment 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 one of the 
persons listed in the preceding FOR FURTHER INFORMATION CONTACT 
section.

B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. EPA has established an official public docket for this 
action under Docket ID No. OW-2002-0023. The official public docket 
consists of the documents specifically referenced in this action, any 
public comments received, and other information related to this action. 
Although a part of the official docket, the public docket does not 
include Confidential Business Information (CBI) or other information 
whose disclosure is restricted by statute. The official public docket 
is the collection of materials that is available for public viewing 
under Proposed Water Quality Standards for Alabama at Water Management 
Division, EPA, Region 4, Sam Nunn Atlanta Federal Center, 61 Forsyth 
Street, SW, Atlanta, Georgia 30303-3104, phone  404-562-9267. 
This Docket Facility is open from 9:00 AM to 3:30 PM, Monday through 
Friday, excluding legal holidays. A reasonable fee will be charged for 
copies.
    2. Electronic Access. You may access this Federal Register document 
electronically through the EPA Internet under the ``Federal Register'' 
listings at http://www.epa.gov/fedrgstr/.
    An electronic version of the public docket is available through 
EPA's electronic public docket and comment system, EPA Dockets. You may 
use EPA Dockets at http://www.epa.gov/edocket/

[[Page 65257]]

 to submit or view public comments, access the index listing of the 
contents of the official public docket, and to access those documents 
in the public docket that are available electronically. Once in the 
system, select ``search,'' then key in the appropriate docket 
identification number.
    Certain types of information will not be placed in the EPA Dockets. 
Information claimed as CBI and other information whose disclosure is 
restricted by statute, which is not included in the official public 
docket will not be available for public viewing in EPA's electronic 
public docket. EPA's policy is that copyrighted material will not be 
placed in EPA's electronic public docket but will be available only in 
printed, paper form in the official public docket. To the extent 
feasible, publicly available docket materials will be made available in 
EPA's electronic public docket. When a document is selected from the 
index list in EPA Dockets, the system will identify whether the 
document is available for viewing in EPA electronic public docket. 
Although not all docket materials may be available electronically, you 
may still access any of the publicly available docket materials through 
the docket facility identified in I.B.1. EPA intends to work towards 
providing electronic access to all of the publicly available docket 
materials through EPA electronic public docket.
    For public commenters, it is important to note that EPA's policy is 
that public comments, whether submitted electronically or in paper, 
will be made available for public viewing in EPA's Electronic public 
docket as EPA receives them and without change, unless the comment 
contains copyrighted material, CBI, or other information whose 
disclosure is restricted by statute. When EPA identifies a comment 
containing copyrighted material, EPA will provide a reference to that 
material in the version of the comment that is placed in EPA's 
electronic public docket. The entire printed comment, including the 
copyrighted material, will be available through the docket facility 
identified in I.B.1.
    Public comments submitted on computer disks that are mailed or 
delivered to the docket will be transferred to EPA's electronic public 
docket. Public comments that are mailed or delivered to the Docket will 
be scanned and placed in EPA's electronic public docket. Where 
practical, physical objects will be photographed, and the photograph 
will be placed in EPA's electronic public docket along with a brief 
description written by the docket staff.
    For additional information about EPA's electronic public docket, 
visit EPA Dockets online or see 67 FR 38102, May 31, 2002.

C. How and To Whom Do I Submit Comments?

    You may submit comments electronically, by mail, or through hand 
delivery/courier. To ensure proper receipt by EPA, identify the 
appropriate docket identification number in the subject line on the 
first page of your comment. Please ensure that your comments are 
submitted within the specified comment period. Comments received after 
the close of the comment period will be marked ``late.'' While EPA is 
not required to consider these late comments, we will make every 
attempt to consider them.
    1. Electronically. If you submit an electronic comment as 
prescribed below, EPA recommends that you include your name, mailing 
address, and an e-mail address or other contact information in the body 
of your comment. Also include this contact information on the outside 
of any disk or CD ROM you submit, and in any cover letter accompanying 
the disk or CD ROM. This ensures that you can be identified as the 
submitter of the comment and allows EPA to contact you in case EPA 
cannot read your comment due to technical difficulties or needs further 
information on the substance of your comment. EPA's policy is that EPA 
will not edit your comment, and any identifying or contact information 
provided in the body of a comment will be included as part of the 
comment that is placed in the official public docket, and made 
available in EPA's electronic public docket. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment.
    i. EDOCKETS. Your use of EPA's electronic public docket to submit 
comments to EPA electronically is EPA's preferred method for receiving 
comments. Go directly to EPA Dockets at http://www.epa.gov/edocket, and 
follow the online instructions for submitting comments. To access EPA's 
electronic public docket from the EPA Internet Home Page, select 
``Information Sources,'' ``Dockets,'' and ``EPA Dockets.'' Once in the 
system, select ``search,'' and then key in Docket ID OW-2002-0023. The 
system is an ``anonymous access'' system, which means EPA will not know 
your identity, e-mail address, or other contact information unless you 
provide it in the body of your comment.
    ii. Email. Comments may be sent by electronic mail (e-mail) to 
[email protected], Attention Docket ID No. OW-2002-0023. In 
contrast to EPA's electronic public docket, EPA's e-mail system is not 
an ``anonymous access'' system. If you send an e-mail comment directly 
to the Docket without going through EPA's electronic public docket, 
EPA's e-mail system automatically captures your e-mail address. E-mail 
addresses that are automatically captured by EPA's e-mail system are 
included as part of the comment that is placed in the official public 
docket, and made available in EPA's electronic public docket.
    iii. Disk or CD ROM. You may submit comments on a disk or CD ROM 
that you mail to the address identified in I.C.2. These electronic 
submissions will be accepted in WordPerfect or ASCII file format. Avoid 
the use of special characters and any form of encryption.
    2. By Mail. Send your comments to: Docket Manager, Proposed Water 
Quality Standards for Alabama, EPA, Region 4, Sam Nunn Atlanta Federal 
Center, 61 Forsyth Street, SW, Atlanta, Georgia 30303-3104, Attention 
Docket ID No. OW-2002-0023.
    3. By Hand Delivery or Courier. Deliver your comments to the 
address identified in I.C.2., attention Docket ID OW-2002-0023. Such 
deliveries are only accepted during the Docket's normal hours of 
operation as identified in I.B.1.

D. What Should I Consider as I Prepare My Comments for EPA?

    You may find the following suggestions helpful for preparing your 
comments:
    1. Explain your views as clearly as possible.
    2. Describe any assumptions that you used.
    3. Provide any technical information and/or data you used that 
support your views.
    4. If you estimate potential burden or costs, explain how you 
arrived at your estimate.
    5. Provide specific examples to illustrate your concerns.
    6. Offer alternatives.
    7. Make sure to submit your comments by the comment period deadline 
identified.
    8. To ensure proper receipt by EPA, identify the appropriate docket 
identification number in the subject line on the first page of your 
response. It would also be helpful if you provided the name, date, and 
Federal Register citation related to your comments.

[[Page 65258]]

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, Territories, and authorized Tribes (hereafter 
referred to as ``States''), with oversight by EPA, to adopt water 
quality standards to protect the public health and welfare, enhance 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, and criteria necessary to protect those uses. The 
designated 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 a 
portion of Alabama's standards that EPA has disapproved and the State 
has not revised.
    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 policies generally affecting the 
standards' application and implementation in their standards. 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 establishment of designated 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. This effectively creates a rebuttable presumption of 
attainability, i.e., a default designation of fishable/swimmable 
beneficial uses should apply in the absence of sufficient information 
to the contrary. The mechanism in EPA's regulations used to overcome 
this presumption is a use attainability analysis (UAA).
    Under 40 CFR 131.10(j), States are required to conduct a 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 CWA, 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: (i) Naturally occurring pollutant concentrations prevent 
the attainment of the use; (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; (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; (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; (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.
    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 
Sec. Sec.  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 followed the same procedures set out for States in 40 CFR 
part 131, and EPA's implementing policies, procedures, and guidance.
    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 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 section 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

[[Page 65259]]

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.
    EPA believes that 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 not be realized, and a resource highly valued by 
Congress may be lost.
    EPA seeks, through its oversight under section 303(c) of the CWA, 
to ensure that any State's decision to forego protection of a water 
body's potential to support fishable/swimmable uses results from a 
``structured'' analysis of use attainment. Where, as in the case of 
this segment of Five Mile Creek in Alabama, the State provides no 
analysis to support a less 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 to support a less than fishable/swimmable designated 
use. Indeed, Alabama has done so for several of the streams originally 
disapproved by EPA in 1986. However, where a State does neither, as in 
the case of a segment of Five Mile Creek, EPA will undertake Federal 
rulemaking to ensure the water quality goals of the CWA are effectively 
implemented.
    In developing the attached proposed rule, EPA evaluated all 
available information, including physical, biological, and chemical 
parameters, to determine whether fishable/swimmable uses could be 
attained. As explained in detail below, EPA believes the available 
information regarding this water body segment does not rebut the 
presumption that fishable/swimmable uses are attainable. In fact, EPA 
believes that all of the currently available information affirmatively 
supports the conclusion that full fishable/swimmable uses are 
attainable.
    EPA is working within the existing State framework and relying on 
the State's Fish and Wildlife (F&W) designated use for the protection 
of fishable/swimmable water. Similarly, EPA is deferring to the State 
water quality criteria necessary for meeting a F&W designated use. 
EPA's approach in this rulemaking does not undermine the State's 
primary role in designating uses for waters in Alabama. If the State 
reclassifies the segment of Five Mile Creek with a fishable/swimmable 
designated use prior to EPA's finalizing this rule, EPA would approve 
the State's action and not finalize this rule. Alternatively, if the 
State completes 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 this 
water body segment, EPA would approve the State's action if it meets 
all requirements of EPA's regulations at 40 CFR part 131, and not 
finalize this rule (or initiate rulemaking to rescind the rule if the 
State submits an adequate analysis after EPA takes final action). EPA 
encourages the State to continue evaluating the appropriate use 
designation for this segment of Five Mile Creek.

B. Current Alabama Water Quality Standards

    Alabama's water quality regulations at 335-6-10 and 335-6-11 
establish the following designated uses for assignment to water bodies 
in the State: Outstanding Alabama Water, Public Water Supply, Swimming 
and Other Whole Body Water-Contact Sports, Shellfish Harvesting, Fish 
and Wildlife (F&W), Limited Warmwater Fishery (LWF), Agricultural and 
Industrial Water Supply (A&I). Alabama has applied these use 
designations, singly or in some combination, to all surface waters of 
the State.
    The current use designation adopted by the State for the segment of 
Five Mile Creek addressed in today's proposal is A&I. The best usage of 
waters designated for the A&I use includes ``agricultural irrigation, 
livestock watering, industrial cooling and process water supplies, and 
any other usage, except fishing, bathing, recreational activities, 
including water-contact sports, or as a source of water supply for 
drinking or food-processing purposes.'' The Alabama water quality 
regulations describe the A&I use as follows:

    The waters, except for natural impurities which may be present 
therein, will be suitable for agricultural irrigation, livestock 
watering, industrial cooling waters, and fish survival. The waters 
will be usable after special treatment, as may be needed under each 
particular circumstance, for industrial process water supplies.
    This category includes watercourses in which natural flow is 
intermittent and non-existent during droughts and which may, of 
necessity, receive treated wastes from existing municipalities and 
industries, both now and in the future. In such instances, 
recognition must be given to the lack of opportunity for mixture of 
the treated wastes with the receiving stream for purposes of 
compliance. It is also understood in considering waters for this 
classification that urban runoff or natural conditions may impact 
any waters so classified.

    EPA's regulations at 40 CFR part 131 require that waters designated 
for a use less protective than a fishable/swimmable use, such as the 
A&I use, be supported by a use attainability analysis, because neither 
the best usage or conditions related to the best usage for these waters 
include the fishable/swimmable uses, nor do all the criteria necessary 
to protect those uses apply. For example, only ``fish survival'' is 
included as a condition of the best usage, and recreational activities 
are specifically excluded as uses for A&I waters. As such, the criteria 
adopted to support the A&I use do not provide protection for the 
propagation of aquatic life, nor protection from human pathogens during 
the swimming season.
    As discussed in section II.C., EPA disapproved the designation of 
the A&I use for the segment of Five Mile Creek addressed in today's 
proposal. 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)(2) goals. Rather 
than establish a new Federal use designation for this segment of Five 
Mile Creek, EPA believes it is preferable to apply a use designation 
that both meets the goals of the CWA and is consistent with 
longstanding State standards regulations. Because water quality 
standards for this segment, if ultimately promulgated, will be the 
basis for establishing NPDES permit limits by the State, the Agency 
believes that using 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.
    EPA is proposing the State's F&W use set out at 335-6-10-.03 of the 
State's regulations for the segment of Five Mile Creek from Newfound 
Creek to Ketona.

[[Page 65260]]

The State's F&W use includes aquatic life uses and seasonal 
recreational uses that are consistent with the Clean Water Act section 
101(a)(2) goals of fishable/swimmable. The best usage of waters 
designated for the State's F&W use include ``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.'' The conditions related to best 
usage for F&W waters require that these waters ``will be suitable for 
fish, aquatic life and wildlife propagation.''
    The State, in the listing of other usages of waters designated for 
the F&W use recognizes that waters designated for the F&W use ``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,'' and that these 
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.'' This aspect of the F&W use is 
protected by criteria for fecal coliform bacteria identical to the 
criteria adopted for the Swimming and Other Whole Body Water-Contact 
Sports use classification. The bacteria criteria apply June through 
September for the F&W use, whereas the bacteria criteria apply year 
round for the Swimming and Other Whole Body Water-Contact Sports use. 
EPA regulations at 40 CFR 131.10(f) provide States the option to 
``adopt seasonal uses as an alternative to reclassifying a water body 
or segment thereof to uses requiring less stringent criteria'' as long 
as water quality criteria reflect the seasonal uses. As described 
below, the Alabama Environmental Management Commission determined that 
the F&W use was appropriate for this segment of Five Mile Creek in 
their recent reclassification efforts. EPA agrees that the F&W use, as 
applied to this segment of Five Mile Creek, reflects the CWA 101(a)(2) 
goal for ``recreation in and on the water'.
    Provisions of the Fish and Wildlife water use classification also 
apply to the State's Limited Warmwater Fishery (LWF) use 
classification, with the following exceptions. The best usage of waters 
for the months from May through November include ``agricultural 
irrigation, livestock watering, industrial cooling and process water 
supplies, and any other usage, except fishing, bathing, recreational 
activities, including water-contact sports, or as a source of water 
supply for drinking or food-processing purposes.'' Also, the conditions 
related to best usage for the months from May through November require 
that the waters ``will be suitable for agricultural irrigation, 
livestock watering, and industrial cooling waters. The waters will be 
usable after special treatment, as may be needed under each particular 
circumstance, for industrial process water supplies.''
    The standards for the LWF use also specify that, ``This category 
includes watercourses in which natural flow is intermittent, or under 
certain conditions non-existent, and which may receive treated wastes 
from existing municipalities and industries. In such instances, 
recognition is given to the lack of opportunity for mixture of the 
treated wastes with the receiving stream for purposes of compliance. It 
is also understood in considering waters for this classification that 
urban runoff or natural conditions may impact any waters so 
classified.''
    Given that the LWF use incorporates several provisions associated 
with the A&I use for the months from May through November, 40 CFR part 
131 requires that waters designated for the LWF use be supported by a 
use attainability analysis, because neither the best usage or 
conditions related to the best usage for these waters include all of 
the Clean Water Act section 101(a)(2) uses of fully fishable/swimmable.
    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 this segment of Five Mile Creek. 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 335-6-10-.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 335-6-10-.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: (1) Numeric criteria or criteria equations for 
protection of aquatic life from acute toxic effects for 24 parameters, 
(2) 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 Agricultural and 
Industrial Water Supply uses), (3) human health-based criteria 
equations, (4) Maximum Contaminant Levels for 100 parameters 
(applicable to waters classified for drinking water purposes), and (5) 
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. Because 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 the proposed revised 
classification of the Fish and Wildlife use for the stream segment 
considered in this proposed rule.
    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 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.
    (iv) In the application of dissolved oxygen criteria referred to 
above, dissolved oxygen

[[Page 65261]]

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.

C. Factual Background

1. Summary of State and EPA Administrative Actions
    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, 
including the segment of Five Mile Creek from Newfound Creek to Ketona, 
because the State failed to support a use classification less than 
``fishable/swimmable'' in accordance with 40 CFR 131.10(j). From 1986 
to 1991, 20 of the use designations were either upgraded to the Fish 
and Wildlife (F&W) use classification by ADEM or approved as the 
Agricultural and Industrial Water Supply (A&I) use by EPA based on a 
supporting analysis. On July 18, 1991, the EPA Regional Administrator 
for Region 4 disapproved 30 use designations adopted by ADEM, including 
the designation of A&I for the segment of Five Mile Creek from Newfound 
Creek to Ketona.
    Between July 18, 1991 and today's proposal, ADEM reclassified the 
use designations of 17 of these 30 segments to the F&W use designation. 
On August 1, 2000, ADEM incorporated a new use classification of 
Limited Warmwater Fishery (LWF) as a provision of the State water 
quality regulations at 335-6-10-.09 (6), and ADEM has since 
reclassified 10 of these 30 stream segments to the LWF use designation. 
Four of these 10 reclassification actions included alternative water 
quality criteria which established more stringent criteria than the LWF 
designation requires for these four segments based on consideration of 
site specific conditions. EPA approved some of the reclassification 
actions involving the LWF use on March 15, 2001. In addition, EPA 
approved ADEM's A&I use designation for one of these 30 segments on 
March 15, 2000. The State made revisions and provided additional 
supporting analyses for the other segments. These recent actions and 
new information are being reviewed by EPA Region 4 under section 303 
(c) of the CWA.
    Although ADEM reclassified a segment of Five Mile Creek from Locust 
Fork to Newfound Creek to F&W in April 1997, the State has not 
completed actions to reclassify the segment of Five Mile Creek from 
Newfound Creek to Ketona to F&W or completed a use attainability 
analysis for this segment to show that the F&W use is not attainable. 
This is the only remaining segment of the 30 segments disapproved by 
EPA on July 18, 1991, that does not now have an approved use 
designation or State-designated use reclassification action under 
review.
2. Summary of Legal Actions
    During the period from 1996 to the present when some of the 
administrative actions summarized above occurred, EPA has been served 
with several notices of intent to sue and subsequent suits for failure 
to take certain actions under section 303(c) of the CWA with regard to 
water quality standards disapproved by EPA. In each case, the Agency 
has entered into a consent decree with plaintiffs setting deadlines for 
EPA to take certain actions, which are described below.
    The first of these legal actions was filed on September 18, 1996, 
when the Legal Environmental Assistance Foundation, Inc. (LEAF) filed 
suit in District Court in Alabama against EPA for failing to promptly 
propose Federal replacement water quality standards for a subset of use 
designations in Alabama disapproved by EPA. LEAF v. Browner No. CV-96-
ETC-2454-S (N.D. Ala.). Under a consent decree that EPA and plaintiffs 
entered into on September 11, 1997, EPA proposed on March 5, 1998, to 
establish Federal water quality standards for nine stream segments in 
Alabama in a similar manner as today's proposed rule.
    On April 28, 1999, the Alabama Rivers Alliance, Inc. (ARA) filed a 
60-day notice under Section 505 of the Clean Water Act, stating an 
intention to file suit against EPA for failure to promulgate final 
standards for the stream segments addressed in EPA's March 5, 1998 
proposal, and for failure to promptly propose replacement Federal 
standards for the remaining stream segments disapproved by EPA. This 
notice combined the contents of similar notices previously filed by 
LEAF on July 20, 1998 and May 23, 1995.
    These parties filed suit on July 17, 2000. LEAF v. Browner No. CV-
96-ETC-2454-S (N.D. Ala.). EPA and the plaintiffs subsequently signed a 
second consent decree which was entered by the court on January 23, 
2001, which required that EPA either promulgate Federal standards for 
the stream segments addressed in the March 5, 1998 proposal, or approve 
the applicable State water quality standards for these 9 stream 
segments, no later than March 15, 2001. On December 5, 2000, ADEM had 
reclassified the use classifications for seven of the stream segments 
addressed in EPA's March 5, 1998, proposal to the LWF use, and 
reclassified the use designation for one of the stream segments 
addressed in EPA's March 5, 1998, proposal to the F&W use. On March 15, 
2001, EPA approved these revisions to the State's water quality 
standards. Also on that date, based on the provisions of 40 CFR 
131.10(g)(6), EPA approved the A&I use designation for the remaining 
stream segment that was addressed in EPA's March 5, 1998 proposal.
    Under the terms and conditions of the January 23, 2001, consent 
decree (as amended on January 2, 2002), EPA was also required to sign a 
Federal Register notice proposing federal use designations for the 
eight remaining stream segments with a disapproved designated use, or 
withdraw the EPA disapproval of the existing Alabama standards for 
these eight stream segments by October 15, 2002. The attached proposal 
for the segment of Five Mile Creek from Newfound Creek to Ketona, 
combined with EPA Region 4's approval of the State's revisions to the 
remaining streams' designated uses will fulfill EPA's obligation under 
the consent decree.
3. Recent State Actions on Use Designation for Five Mile Creek
    The ADEM held a public hearing on February 19, 2002, to consider 
proposed amendments to ADEM Administrative Code Rule 335-6-11-.02, 
which included a reclassification of a segment of Five Mile Creek from 
the A&I use to the F&W use. The public hearing was held to receive 
data, views, and arguments from interested persons regarding the 
proposed rules. The public comment period lasted from December 23, 
2001, to February 22, 2002, a total of 61 days. Several commenters 
expressed support for the proposed reclassification of Five Mile Creek 
from Newfound Creek to Ketona.
    However, one commenter opposed the reclassification because the 
level of total dissolved solids (including chlorides and sulfates) in 
the effluent of Sloss Industries (a discharger to Five Mile Creek) may 
result in its failure to meet

[[Page 65262]]

the chronic effluent toxicity requirements for LWF and F&W, and the 
cost of removing these salts were not considered in the 
reclassification. The commenter asserted that if those removal costs 
were considered, and if all costs were considered independent of the 
finances of the parent company (Walter Industries), then a substantial 
economic burden (as allowed by EPA's regulations at 40 CFR 131.10 
(g)(6)) would be established.
    In its Reconciliation Statement, which contains responses to 
comments received during the public comment period, ADEM stated that it 
``believes the proposed Fish and Wildlife (F&W) use classification is 
attainable for this segment of Five Mile Creek. ADEM bases (SIC) its 
decision on the fact that none of the six factors [identified at 40 CFR 
131.10(g)] can be used to support a designated use less than the F&W 
classification, which EPA has approved as consistent with the fishable/
swimmable goal.'' ADEM added, ``The reclassification of Five Mile Creek 
from A&I to F&W will result in more stringent permit requirements for 
Sloss Industries, and additional treatment controls will be necessary. 
However, a feasibility study of the treatment control alternatives 
available to Sloss Industries demonstrates that: (1) The F&W permit 
limitations can be met by the facility, and (2) the incremental costs 
of meeting the F&W permit limits (over and above the costs of meeting 
the A&I permit limits) will not result in substantial and widespread 
economic impact.'' With respect to costs, ADEM based its conclusions on 
a Draft Economic Impact Analysis prepared by EPA, dated December 2001, 
and EPA's Response to Sloss Industries' comments, dated March 2002.
    On April 9, 2002, the Alabama Environmental Management Commission 
approved reclassified use designations for several stream segments in 
the State, including the proposed segment of Five Mile Creek. On May 
15, 2002, the Joint Legislative Committee of Administrative Regulation 
Review disapproved the proposed amendment of Alabama Administrative 
Code Rule 335-6-11-.02, which would upgrade the aforementioned segment 
of Five Mile Creek from an A&I to F&W use classification. The Committee 
subsequently proposed an amendment deleting any changes to the status 
of this segment of Five Mile Creek. On June 25, 2002, the Alabama 
Environmental Management Commission approved the Joint Legislative 
Committee's proposed amendment deleting any changes to the status of 
this segment of Five Mile Creek.

III. Use Designation for Five Mile Creek in Alabama

A. Overview

    In terms of Alabama's water quality standards, EPA believes that 
the F&W use designation appropriately reflects fishable/swimmable uses. 
EPA has evaluated all available data and information to determine 
whether the F&W use is attainable. EPA's analysis was informed by the 
regulatory provisions at 40 CFR part 131 and technical guidance that 
EPA has provided to States for the development of use attainability 
analyses. 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, EPA evaluated 
several categories of information in today's analysis of use 
attainability.
    First, EPA evaluated available information regarding the 
characteristics of the waters in terms of habitat and the biological 
communities present. If the waters currently reflect habitat conditions 
and support biological communities commensurate with the F&W use 
designation, EPA considered this to be strong evidence in favor of an 
F&W designation. To facilitate this evaluation, EPA examined a 1997 
study performed by EPA regarding the habitat and biological conditions 
in Five Mile Creek (the findings of this study are discussed below in 
section III.B). A related factor considered by EPA was the use 
designation in the adjacent segments of Five Mile Creek that are 
designated as F&W. If the segment of Five Mile Creek designated as A&I 
was similar in character to adjacent segments designated as F&W by the 
State, EPA considered such information as supporting the attainability 
of the F&W use.
    Second, EPA reviewed available information regarding ambient stream 
chemical characteristics. EPA extracted chemical-specific data from the 
EPA Storage and Retrieval (STORET) Legacy system, 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 in Five Mile Creek. EPA evaluated the extent to 
which current ambient stream chemical concentrations met the F&W 
criteria. Significant exceedances of criteria established to protect 
fishable/swimmable uses may indicate that, notwithstanding the physical 
habitat and aquatic community present, the use is impaired to some 
extent. 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 may not be 
sufficient to preclude a F&W use. Rather, in some cases an aquatic 
community could reflect ambient conditions which are less than ideal. 
In such cases, full attainment of the criteria that support the use 
might lead to development of a more robust and diverse aquatic 
community than is currently present.
    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) occurred on a consistent basis, such information could 
suggest that a F&W use is currently not being fully attained. However, 
considerable judgment 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 attainable within the meaning of the 
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.
    The last broad category of information considered by EPA in its 
decision-making process was monitoring information for each of the 
dischargers on the stream segment (as reflected in Discharge Monitoring 
Reports or DMRs). As discussed in detail in section V.C., EPA analyzed 
the extent to which the proposed Federal use designations may lead to 
the development of 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 point sources to the 
affected stream segment and to assist in determining whether their 
pollutant discharges could contribute to ambient exceedances of 
criteria. 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

[[Page 65263]]

generally meet such revised limits would support the presumption that 
the F&W use is attainable.
    The location of elevated ambient levels of pollutants, combined 
with effluent monitoring data from permitted industrial and municipal 
wastewater discharges, provided information on possible sources of the 
pollutants, and whether combined sewer overflow (CSO) or other sources 
of storm water runoff might be contributing to any elevated pollutant 
levels. For example, if elevated pollutant levels occurred at stream 
locations upstream of permitted industrial and municipal wastewater 
discharges, or for pollutants not discharged in significant quantities 
from those sources, then this suggests that other sources are 
responsible for pollutant loadings to the stream segment. If elevated 
pollutant levels occurred at stream locations downstream of permitted 
industrial and municipal wastewater discharges, and there are records 
of discharge of those pollutants, then this suggests that those sources 
are contributing to pollutant loading. Based on the projected sources 
of pollutants, EPA projected potential costs of meeting criteria to 
protect the F&W use.

B. Proposed Use Designation for Five Mile Creek

    Based upon the approach described above, EPA evaluated all 
available data and information to determine whether the F&W use is 
attainable for Five Mile Creek. If, prior to any final rulemaking by 
EPA, Alabama classifies Five Mile Creek with use designations 
consistent with the CWA and 40 CFR part 131, EPA will approve those use 
designations, eliminating the need to promulgate Federal water quality 
standards.
    In 1997 EPA conducted a biological survey of several streams in the 
Birmingham area, including Five Mile Creek. The rapid bioassessment 
protocol utilized by agency scientists evaluated habitat, water 
chemistry, and benthic macroinvertebrate and fish communities. The 
study design allowed comparison of data from two sampling stations 
within the A&I segment to data from two sampling stations in the 
adjacent F&W segments (one in the upstream F&W segment and one in the 
downstream F&W segment). The results of this survey documented that 
Five Mile Creek had the most intact riparian zone and stream habitat of 
the Birmingham streams assessed in the study. All four stations 
received similar habitat evaluation scores (ranging from 118 to 123 
(compared to the score of 118 at the reference site)). The total number 
of macroinvertebrate taxa differed from 20 at both stations in the A&I 
segment to 26 and 27 in the F&W segments, yet both stations in the A&I 
segment were rated as similar to the stations in the F&W segment. 
Likewise, based on the evaluation of fish communities, one station in 
the A&I segment was rated as similar to the stations in the F&W 
segments. The biological survey revealed evidence of a reduction in 
pollution sensitive macro-invertebrates at both stations in the A&I 
segment (Ephemeroptera, Plecoptera, Trichoptera (EPT) scores of 1 and 2 
in the A&I segment versus 3 and 5 in the F&W segments), indicating that 
dischargers to the A&I segments may be affecting the local biological 
community.
    The results of this survey reveal evidence that there is a viable 
resident aquatic community in the A&I segment of Five Mile Creek that 
would benefit from increased protection afforded with a F&W use 
designation. The habitat as well as the macroinvertebrate and fish 
communities found at sampling stations in the A&I segment are similar 
to those of the F&W segments of Five Mile Creek. This information 
supports the assertion that F&W is attainable for this segment.
    Ambient chemical monitoring data are available for two stations on 
Five Mile Creek (FM1 and FM2) covering more than 20 years. EPA only 
evaluated data since 1980 to best reflect more recent stream 
conditions. Station FM1 is located just below two industrial 
dischargers, ABC Coke and Sloss Industries. Station FM2 is located 
downstream of FM1 and below the Five Mile Creek Waste Water Treatment 
Plant outfall. Available data from these stations include dissolved 
oxygen concentrations, levels of fecal coliform bacteria, and 
concentrations of various toxic priority pollutants and ammonia.
    Dissolved oxygen (DO) levels, necessary to support aquatic life, 
are generally very good in Five Mile Creek. The mean DO concentration 
at FM1 is 8.7 mg/L (191 observations), with only 2.6% of these 
observations less than 5 mg/L (the F&W criterion). The mean DO 
concentration at FM2 is 8.48 mg/L with only 1.4% of observations less 
than 5 mg/L.
    Criteria for fecal coliform bacteria are set to protect public 
health and welfare, as well as the seasonal recreational swimming use 
component of F&W. At station FM1, located upstream of the municipal 
wastewater discharge, 96.6% of the 88 observations from May 1989 to 
October 1998 meet (i.e., are less than) the F&W single sample maximum 
criterion of 2,000 units per 100 mL. The geometric mean of fecal 
coliform bacteria measurements for this station is 145 units per 100 
mL, below the F&W geometric mean criterion of 200 per 100 mL for June 
through September. At station FM2, below Five Mile Creek Waste Water 
Treatment Plant, 94.3% of the 87 observations from June 1989 to October 
1998 have bacteria counts less than the F&W single sample maximum 
criterion of 2,000 per 100 mL. The geometric mean of measurements for 
this station is 232 per 100 mL for all observations, which is less than 
the F&W geometric mean criterion of 1,000 per 100 mL outside the 
swimming season. However, the geometric mean between June and September 
of 363 per 100 mL exceeds the F&W geometric mean criterion of 200 per 
100 mL for this period of time. The exceedances of F&W fecal coliform 
criteria are generally not indicative of significant sewage treatment 
problems in this segment, yet appear largely attributable to the 
upstream Waste Water Treatment Plant. Optimization of Five Mile Creek 
Waste Water Treatment Plant's existing chlorination process would 
likely reduce fecal coliform levels to the necessary levels.
    Criteria for toxic pollutants protect the waters for aquatic life 
survival (acute criteria) and propagation (chronic criteria) as well as 
human health from the consumption of aquatic organisms. Acute aquatic 
life criteria and human health criteria apply both to the A&I and F&W 
use; however, the F&W use also has chronic aquatic life criteria. 
Reported concentrations of copper, cyanide, mercury, and zinc 
occasionally exceed the acute and chronic aquatic life criteria at both 
stations. Reported concentrations of lead occasionally exceed the 
chronic criterion at both stations and arsenic concentrations 
occasionally exceed the human health (organisms only) criterion at both 
stations. In particular, reported concentrations of cyanide frequently 
exceed the chronic aquatic life criterion at both stations.
    Both stations are downstream of facilities that discharge some of 
these pollutants found to be exceeding the ambient criteria. However, 
for other of these pollutants, there are no records indicating a 
discharge of such pollutants is occurring from the permitted 
facilities. As a result, some pollutants may continue to exceed 
criteria even with control of these permitted wastewater discharges, 
and additional controls on other sources might be needed to meet the 
current A&I use. If additional controls on other sources are put in 
place to meet the current A&I use, EPA projects that these controls 
would also provide the reductions needed to attain the F&W use. 
Jefferson County is

[[Page 65264]]

currently under a 1995 Consent Agreement with U.S. EPA to eliminate 
combined sewer overflow (CSO) discharges and frequent bypasses of the 
treatment facilities. However, there are no data on the relative 
contributions of the latter in relation to loadings from urban areas.
    While conditions in this segment of Five Mile Creek indicate some 
ambient toxic pollutant exceedances, the stream segment meets the F&W 
criteria in most cases. EPA recognizes that additional controls on 
sources of certain pollutants would need to be implemented to meet 
criteria applicable to both the current A&I use as well as the proposed 
F&W use. However, based on currently available information, 
implementation of such control measures has not been shown to be 
infeasible (impacts of achieving reductions through point source 
controls are discussed further in section V. below).
    As noted above, assessments of riparian zone, habitat, biological 
health, and ambient water quality demonstrate that this segment of Five 
Mile Creek supports viable benthic macroinvertebrate and fish 
communities and has physical parameters similar to those found to occur 
in the portions of Five Mile Creek currently classified for the F&W 
use. Also, while the discharges to this segment have some impact on 
water quality, the information available to EPA supports the conclusion 
that additional control measures are feasible. EPA believes that the 
currently available information as a whole supports the attainability 
of the F&W use. Therefore, EPA is proposing to reclassify this segment 
of Five Mile Creek to the F&W use designation.

C. Request for Comment and Data

    EPA believes the F&W proposed designated use is 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 
contradict the attainability of a F&W proposed designated use. 
Accordingly, the Agency will evaluate any new data and information 
submitted to EPA by the close of the public comment period with regard 
to designating the use for this stream segment. Based on that 
evaluation of any new data or information, EPA will make a final 
decision whether the F&W designated use in today's proposal is 
appropriate and consistent with the CWA. To assist the Agency in 
ensuring that this decision is 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 relevant.
    Specifically, EPA is seeking information that would assist in 
determining (1) whether the designated use identified above is 
currently being attained or has been attained in the past; (2) whether 
natural conditions or features or human caused conditions prevent the 
attainment of this use and whether these conditions can or cannot be 
remedied or would cause more environmental damage to correct than to 
leave in place; or (3) whether controls more stringent than those 
required by section 301(b) and 306 of the CWA would be needed to attain 
the use, and whether 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 the Five 
Mile Creek stream segment subject to this proposal reflecting either 
natural conditions (e.g., in-stream flow data or other data relating to 
stream hydrology) or human-caused conditions which cannot be remedied 
and which prevent the F&W use 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.
    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 designated uses; and (3) the results of any 
such models which can be used to evaluate the attainment of designated 
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 permit 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

    Today's proposal reflects EPA's determination that F&W is an 
appropriate use designation for the segment of Five Mile Creek from 
Newfound Creek to Ketona, 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 relevant to 
the water quality standards for this stream. If EPA ultimately 
promulgates a Federal F&W use designation for this stream, there are 
several mechanisms available to ensure that the use and its 
implementing mechanisms appropriately take into account future 
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 Five Mile Creek 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, the 
State must conduct a use attainability analysis as described in 40 CFR 
131.3(g) when adopting water quality standards which result in uses 
which do not include fishable/swimmable, or which result in 
subcategories of uses which require less stringent criteria.

B. Site-Specific Criteria

    The State may also develop data which indicates a site-specific 
water quality criterion for a particular pollutant is appropriate and 
take action

[[Page 65265]]

to adopt such a criterion into their water quality standards. Site 
specific criteria are allowed by regulation and are subject to EPA 
review and approval. 40 CFR 131.11(a) 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 
should 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 numeric 
criteria. See 40 CFR 131.11(b).
    Currently, EPA guidance describes 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). 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 
November 5, 1997).
    Today's proposed rule does not limit Alabama's ability to modify 
the criteria applicable to the Federal F&W use.

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. EPA 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 
non-attainment 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 described 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 
only applies 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 for the problem parameters, while encouraging 
ultimate attainment of the underlying standard. All other parameter/
pollutant criteria for that use would remain in effect. 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 for certain parameters.
    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 grant variances from Federally promulgated standards. EPA 
believes that it is appropriate to provide comparable Federal 
procedures to address new data and information that may become 
available in the future. Therefore, EPA is proposing to authorize the 
Region 4 Regional Administrator to grant water quality standard 
variances where a permittee submits data indicating that the F&W 
designated use is not attainable for any of the reasons in 40 CFR 
131.10(g). This variance procedure will apply to the F&W use for the 
specific segment of Five Mile Creek 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 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 work closely with 
the State permitting authorities to ensure that variance requests will 
be considered in conjunction 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 
applicant must demonstrate 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 implementing 
effluent limitations required under sections 301(b) and 306 of the CWA 
and implementing reasonable best management practices for nonpoint 
source control.
    Under the proposal, a variance may not exceed five 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 or if the permittee did not 
comply with the conditions of the original variance.
    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.

V. Economic Analysis

    It has been determined that this proposed rule is not a 
``significant regulatory action'' under the terms of Executive Order 
12866. EPA's proposed rule does not itself establish any requirements 
directly applicable to regulated entities. While implementation of 
today's rule may ultimately result in some new or revised permit 
conditions for some dischargers, EPA's action today does not impose any 
requirements on dischargers. Nonetheless, EPA is attempting, within the 
limits of these uncertainties, to make an estimate of the potential 
costs which might ultimately result from this rule-making. The 
following is a summary of the economic analysis (EA) prepared for this 
proposed rule. Further discussion is

[[Page 65266]]

included in the full EA, which is included in the docket for this rule-
making.

A. Method for Estimating Costs

    Before estimating potential costs, EPA performed a screening-level 
analysis of use attainability to determine both the achievability of 
criteria that support the F&W use for the stream where they are 
exceeded, and the sources of pollutants that would need to be 
controlled. EPA then estimated costs by evaluating National Pollutant 
Discharge Elimination System (NPDES) permitted dischargers to the 
specific segment of Five Mile Creek. The table below lists the 
municipal and industrial facilities potentially affected by a change in 
designated use. All three facilities are classified as major 
dischargers (municipal facilities discharging more than one million 
gallons per day (mgd) or industrial facilities discharging toxic 
pollutants in toxic amounts).

   Five Mile Creek Facilities Potentially Affected by the Use Upgrade
------------------------------------------------------------------------
            Facility (capacity)                       NPDES No.
------------------------------------------------------------------------
ABC Coke (0.12 mgd).......................  AL0003417
Five Mile Creek Wastewater Treatment Plant  AL0026913
 (WWTP) (20 mgd).
Sloss Industries (3.2 mgd)................  AL0003247
------------------------------------------------------------------------

    In evaluating these facilities, EPA used data and information from 
its Permit Compliance System and publicly available data sources, 
modeling results provided by ADEM, and information on facility 
treatment processes provided by EPA Region IV. EPA estimated revised 
facility effluent limits for conventional pollutants if data indicate 
that the segment is not currently attaining the State's receiving water 
criteria for the higher use designation, and the facility currently has 
permit limits for the pollutants. For toxic pollutants, EPA calculated 
revised effluent limits for pollutants exhibiting reasonable potential 
to exceed the State's criteria for each use (following Alabama's 
implementation procedures for developing effluent limits). EPA made a 
determination that reasonable potential exists to contribute to the 
exceedence of the water quality standard if the receiving water 
concentration that would result from discharge of a facility's maximum 
effluent concentration (MEC) would cause an exceedance of any of the 
State's criteria (e.g., acute or chronic) for toxic pollutants.
    For some toxic pollutants, NPDES permits for the two industrial 
facilities currently include only effluent guideline-based limits that 
represent best available technology (BAT). Section 301(b)(1)(c) of the 
CWA and EPA regulations at 40 CFR 122.44(d) require that more stringent 
limits be included in permits where necessary to meet applicable water 
quality standards. Therefore, EPA calculated water quality-based limits 
that would be necessary to achieve the A&I acute aquatic life and human 
health criteria. These effluent limits are consistent with the current 
A&I use, but have not been implemented in facility permits. EPA then 
estimated revised effluent limits for all toxic pollutants that would 
apply under a F&W classification based on acute and chronic aquatic 
life, and human health criteria (for consumption of organisms only). 
EPA used the two-value steady-state wasteload allocation procedure 
specified in EPA's Technical Support Document for Water Quality-based 
Toxics Control to make these calculations. EPA compared the MEC to the 
projected limits to estimate the pollutant loading reductions necessary 
for compliance. This conservative approach maximizes the estimate of 
necessary pollutant loading reductions.
    EPA estimated the most cost-effective control strategy for each 
facility to achieve compliance. To estimate the potential costs 
associated with the controls, EPA used readily available documentation 
and updated these sources to 2002 dollars.

B. Estimated Costs Associated With Fish and Wildlife (F&W) Use

    Point source dischargers to the 19.4 mile segment of Five Mile 
Creek are not meeting their current permit limits (some limits 
developed only to meet BAT and other limits developed to meet criteria 
to protect the current State designated use of A&I), and would require 
additional controls to come into compliance with these limits. Further, 
some of the current permit limits for these facilities are not 
reflective of the current (A&I) use designation, and additional costs 
would be incurred to meet limits based on the current A&I use 
designation. The annual costs to meet the State's current use 
designation of A&I for Five Mile Creek, which are not part of the costs 
for today's proposal to establish the F&W use designation for the same 
waterbody, could range from $4 million to $10 million.
    Once in compliance with limits to meet the current A&I use, only 
process optimization is needed for these facilities to achieve the 
incremental pollutant loading reductions associated with a F&W use. The 
table below summarizes the estimated annual costs of these controls for 
today's proposal. In addition, based on ambient data for several 
pollutants, it appears that additional controls on other sources might 
be needed to meet criteria to protect the current A&I use in a more 
consistent manner. EPA projects that these controls would also provide 
the reductions needed to similarly meet the criteria associated with 
the F&W use.

                  Estimated Annual Incremental Facility Costs To Achieve F&W Use Classification
                                              [Millions of 2002 $]
----------------------------------------------------------------------------------------------------------------
                                                                 Total        Annual                    Total
                          Facility                              capital    capital \1\      O&M         annual
----------------------------------------------------------------------------------------------------------------
ABC Coke....................................................         0.11        0.011          0.0        0.011
Five Mile Creek WWTP........................................         0.36        0.034          0.0        0.034
Sloss Industries............................................         0.26        0.025          0.0        0.025
                                                             --------------
    Total...................................................         0.73        0.070          0.0       0.070
----------------------------------------------------------------------------------------------------------------
\1\ Reflects capital costs annualized at 7% over 20 years.

    Toxic Pollutants. Analysis of effluent monitoring data indicates 
that ABC Coke and Sloss Industries would require additional controls to 
meet A&I acute aquatic life or human health criteria for PAHs, cyanide, 
ammonia, and metals. Both facilities would comply with projected 
effluent limits to meet F&W criteria with optimization of the treatment 
processes needed to reduce pollutant levels to the projected A&I 
limits.

[[Page 65267]]

    Conventional Pollutants. Fecal coliform bacteria counts in Five 
Mile Creek exceed the geometric mean criterion of 200 per 100 ml for a 
F&W use. The most likely source of fecal coliform bacteria is the Five 
Mile Creek WWTP. This facility does not have a limit for fecal 
coliforms and there are no effluent data for this pollutant. However, 
optimization of the existing chlorination process at the facility would 
likely reduce fecal coliform bacteria in the effluent to levels that 
would meet the F&W criterion.

C. Estimated Pollutant Loading Reductions Associated with F&W Use

    The table below summarizes the pollutant loading reductions needed 
for ABC Coke, Sloss Industries, and Five Mile Creek WWTP to comply with 
projected effluent limits associated with F&W use. For comparison, also 
shown are the reductions necessary to comply with the current 
designated use of A&I.

  Pollutant Loading Reductions Associated With the Use Classifications
                                 [lb/yr]
------------------------------------------------------------------------
                                                     Use  classification
                     Pollutant                      --------------------
                                                      A&I \1\    F&W \2\
------------------------------------------------------------------------
Ammonia-N..........................................  185,668           0
Benzo(a)Anthracene.................................      152           0
Benzo(a)Pyrene.....................................      201           0
Benzo(b)Fluoranthene...............................      211           0
Benzo(k)Fluoranthene...............................       79.1         0
Chrysene...........................................      160           0
Total Copper.......................................      261           0
  Total Cyanide....................................    6,772         157
  Total Lead.......................................       34.4       356
====================================================
------------------------------------------------------------------------
\1\ Based on reducing the maximum effluent concentration to the current
  or projected limit.
\2\ Load reduction of zero indicates that the projected A&I and F&W
  limits are equal.

VI. Executive Order 12866--Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735 (October 4, 1993)), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to 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 rule is not a ``significant 
regulatory action'' under the terms of Executive Order 12866 and is 
therefore not subject to OMB review.

VII. Executive Order 13045--Children's Health

    Executive Order 13045: ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that: (1) Is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children, and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This proposed rule is not subject to the Executive Order because it 
is not economically significant as defined in Executive Order 12866. 
Further, it does not concern an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. This proposed rule, if promulgated, would establish water 
quality standards to meet the requirements of the CWA and the 
implementing Federal regulations.

VIII. Executive Order 13132--Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999) requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This proposed rule does not have federalism implications. It will 
not have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The proposed rule would not 
affect the nature of the relationship between EPA and States generally, 
for the rule only applies to a water body segment in Alabama. Further, 
the proposed rule would not substantially affect the relationship of 
EPA and the State of Alabama, or the distribution of power or 
responsibilities between EPA and the various levels of government. The 
proposed rule would not alter the State's authority to issue NPDES 
permits or the State's considerable discretion in implementing these 
water quality standards. Further, this proposed rule would not preclude 
Alabama from adopting water quality standards that meet the 
requirements of the CWA. Thus, Executive Order 13132 does not apply to 
this proposed rule.
    Although Executive Order 13132 does not apply to this rule, EPA did 
consult with representatives of the State government in developing this 
rule. Prior to this proposed rulemaking action, EPA had numerous phone 
calls, meetings and exchanges of written correspondence with Alabama's 
Department 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 
designation 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 
stream segment in today's proposal. For a more detailed description of 
EPA's interaction with the State on this proposed rulemaking, refer to 
section II.C.2. EPA will continue to work with the State before 
finalizing these water quality standards for Alabama. In the spirit of 
Executive Order 13132, and consistent with EPA policy to promote 
communications between EPA and State and local governments, EPA 
specifically solicits comment on this proposed rule from State and 
local officials.

IX. Executive Order 13175--Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA

[[Page 65268]]

to develop an accountable process to ensure ``meaningful and timely 
input by tribal officials in the development of regulatory policies 
that have tribal implications.'' ``Policies that have tribal 
implications'' is defined in the Executive Order to include regulations 
that have ``substantial direct effects on one or more Indian tribes, on 
the relationship between the Federal government and the Indian tribes, 
or on the distribution of power and responsibilities between the 
Federal government and India tribes.''
    This proposed rule does not have tribal implications. It will not 
have substantial direct effects on tribal governments, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
There are no Indian Tribes in Jefferson County, Alabama, where Five 
Mile Creek is located. Thus, Executive Order 13175 does not apply to 
this rule.
    In the spirit of Executive Order 13175, and consistent with EPA 
policy to promote communications between EPA and tribal governments, 
EPA specifically solicits comment on this proposed rule from tribal 
officials.

X. Executive Order 13211--Energy

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.

XI. Paperwork Reduction Act

    This action does not impose an information collection burden under 
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). 
It does not include any information collection, reporting, or record-
keeping requirements. Burden means the total time, effort or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. This 
includes the time needed to review instructions; develop, acquire, 
install, and utilize technology and systems for the purposes of 
collecting, validating, and verifying information, processing and 
maintaining information, and disclosing and providing information; 
adjust the existing ways to comply with any previously applicable 
instructions and requirements; train personnel to be able to respond to 
a collection of information; search data sources; complete and review 
the collection of information; and transmit or otherwise disclose the 
information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR chapter 15.

XII. Regulatory Flexibility Act as Amended by the Small Business 
Regulatory Enforcement Fairness Act of 1996

    The Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) (5 U.S.C. 
601 et seq.), generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's proposed rule on 
small entities, small entity is defined as: (1) A small business 
according to RFA default definitions for small business (based on SBA 
size standards); (2) a small governmental jurisdiction that is a 
government of a city, county, town, school district or special district 
with a population of less than 50,000; and (3) a small organization 
that is any not-for-profit enterprise which is independently owned and 
operated and is not dominant in its field.
    After considering these economic impacts of today's proposed rule 
on small entities, I certify that this action will not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule will not impose any 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.
    Under the CWA water quality standards program, States must adopt 
water quality standards for their waters and must submit those water 
quality standards 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 also has the authority to 
promulgate criteria or standards in any case where the Administrator 
determines that a new or revised 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, which limits discharges to navigable waters except in 
compliance with an EPA permit or a permit issued under an approved 
State program. The CWA requires that all NPDES permits include any 
limits on discharges that are necessary to meet applicable 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 earlier, 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 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 small entities.

[[Page 65269]]

XIII. 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 final rule an explanation of 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 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 any State, local or Tribal governments or the 
private sector; rather, this rule proposes designated uses for Five 
Mile Creek in Alabama which, when combined with State adopted water 
quality criteria, constitute water quality standards for that stream. 
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, the proposed 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.

XIV. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs EPA 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, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This proposed rulemaking does not involve technical standards. 
Therefore, EPA is not considering the use of any voluntary consensus 
standards.
    EPA welcomes comment on this aspect of the proposed rulemaking, 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

XV. 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.
    There are no Federally listed species known to utilize this segment 
of Five Mile Creek and there is no critical habitat designated in Five 
Mile Creek. Therefore, EPA is not conducting section 7 consultation on 
this rulemaking with the FWS.

XVI. Plain Language

    Executive Order 12886 directs each agency to write all rules in 
plain language. We invite your comments on how to make this proposed 
rule easier to understand. For example:
--Have we organized the material to suit your needs?
--Are the requirements in the rule clearly stated?
--Does the rule contain technical language or jargon that isn't clear?
--Would a different format (grouping and order of sections, use of 
headings, paragraphing) make the rule easier to understand?
--Would more (but shorter) sections be better?
--What else could we do to make the rule easier to understand?

List of Subjects in 40 CFR Part 131

    Environmental protection, Indians-lands, Intergovernmental 
relations, Reporting and recordkeeping requirements, Water pollution 
control.

    Dated: October 15, 2002.
Christine Todd Whitman,
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.

    2. Section 131.34 is added to subpart D 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 segment in Alabama 
has the beneficial use designated in this paragraph (a).

[[Page 65270]]



----------------------------------------------------------------------------------------------------------------
             Basin                 Stream segment          From                To             Classification
----------------------------------------------------------------------------------------------------------------
Warrior........................  Five Mile Creek..  Newfound Creek...  Ketona...........  Fish & Wildlife.
----------------------------------------------------------------------------------------------------------------

    (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;
    (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;
    (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;
    (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;
    (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 met. The applicant must 
demonstrate 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 five 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. 02-26845 Filed 10-22-02; 8:45 am]
BILLING CODE 6560-50-P