Water Quality Standards for Alabama

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: October 23, 2002 (Volume 67, Number 205)]
[Proposed Rules]
[Page 65255-65270]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23oc02-32]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-7397-2]
RIN 2040-AD35

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:

------------------------------------------------------------------------
Examples of those potentially
Category affected
------------------------------------------------------------------------
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
wagener.fritz@epa.gov, 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'' (59 FR 22951, 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

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Water Quality Standards for Alabama

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