[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20686-20694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11080]
[[Page 20685]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 131
Water Quality Standards for Surface Waters in Arizona; Final Rule
Federal Register / Vol. 61, No. 89 / Tuesday, May 7, 1996 / Rules and
Regulations
[[Page 20686]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[FRL-5467-9]
Water Quality Standards for Surface Waters in Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This rule establishes water quality standards applicable to
waters of the United States in the State of Arizona. EPA is
promulgating this rule pursuant to a court order in Defenders of
Wildlife v. Browner (Docket No. Civ. 93-234 TUC ACM). The rule
designates fish consumption as a use for certain waters, and requires
implementation of a monitoring program regarding mercury's effects on
wildlife. On January 29, 1996, EPA published a proposed rule that
included other provisions which are not being promulgated as part of
today's rule because, after EPA's proposal, the Arizona Department of
Environmental Quality adopted revised regulations and policies in those
areas which EPA Region 9 has determined are in accordance with the
Clean Water Act.
EFFECTIVE DATE: June 6, 1996.
ADDRESSES: This action's administrative record is available for review
and copying at the Water Management Division, EPA, Region 9, 75
Hawthorne St., San Francisco, CA 94105. For access to the docket
materials, call (415) 744-1978 for an appointment. A reasonable fee
will be charged for copies.
FOR FURTHER INFORMATION CONTACT: Gary Wolinsky, Permits and Compliance
Branch, W-5, Water Management Division, EPA, Region 9, 75 Hawthorne
St., San Francisco, CA 94105, telephone: 415 744-1978.
SUPPLEMENTARY INFORMATION:
A. Regulated Entities
Entities potentially regulated by this action are those discharging
pollutants to waters of the United States in Arizona. Regulated
categories and entities include:
------------------------------------------------------------------------
Category Examples of regulated entities
------------------------------------------------------------------------
Industry.................... Industries discharging mercury to surface
waters in Arizona, or discharging
pollutants to particular surface waters
in Arizona listed in sec. 131.31(b) of
the rule.
Municipalities.............. Publicly-owned treatment works discharging
mercury to surface waters in Arizona, or
discharging pollutants to particular
surface waters listed in sec. 131.31(b)
of the rule.
------------------------------------------------------------------------
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. This table lists the types of entities that EPA is now aware
could potentially be regulated by this action. Other types of entities
not listed in the table could also be regulated. To determine whether
your facility is regulated by this action, you should examine the list
of waterbodies in section 131.31(b) of this rule, and examine 40 CFR
131.2 which describes the purpose of water quality standards such as
those established in this rule. If you have questions regarding the
applicability of this action to a particular entity, consult the person
listed in the preceding FOR FURTHER INFORMATION CONTACT section.
B. Background
Under section 303 (33 U.S.C. 1313) of the Clean Water Act (CWA),
states are required to develop water quality standards for waters of
the United States within the state. Section 303(c) provides that a
water quality standard shall include a designated use or uses to be
made of the water and criteria necessary to protect those uses. States
are required to review their water quality standards at least once
every three years and, if appropriate, revise or adopt new standards.
33 U.S.C. 1313(c). States are required to submit the results of their
triennial review of their water quality standards to EPA. EPA is to
approve or disapprove any new or revised standards. Id.
States may include in their standards policies generally affecting
the standards' application and implementation. See 40 CFR 131.13. These
policies are subject to EPA review and approval. 40 CFR 131.6(f), 40
CFR 131.13.
Section 303(c)(4) of the CWA authorizes EPA to promulgate water
quality standards that supersede disapproved State water quality
standards, or in any case where the Administrator determines that a new
or revised water quality standard is needed to meet the CWA's
requirements.
In September 1993, EPA, Region 9, disapproved portions of Arizona's
standards pursuant to section 303(c) of the CWA and 40 CFR 131.21. The
portions of Arizona's standards disapproved in September 1993 relate
to: the exclusion of mining-related impoundments from water quality
standards; the absence of ``fish consumption'' as a designated use for
certain water bodies; the absence of implementation procedures for the
State's narrative nutrient standard; the absence of biomonitoring
implementation procedures for the State's narrative toxicity criterion;
and the inclusion of practical quantitation limits (PQLs) in Arizona's
standards. In April 1994, EPA, Region 9, also disapproved Arizona's
lack of water quality criteria protective of wildlife for mercury.
On November 1, 1995, the United States District Court for the
District of Arizona ordered EPA to prepare and publish proposed
regulations setting forth revised or new water quality standards for
those standards disapproved in September 1993 and April 1994 within 90
days. Defenders of Wildlife v. Browner, Docket No. Civ 93-234 TUC ACM.
On December 29, 1995, the Arizona Department of Environmental
Quality (ADEQ) published proposed revisions to its standards. 1 Ariz.
Admin. Reg. 2811.
Consistent with the Court's order, on January 29, 1996, EPA
published a Federal Register notice proposing standards related to the
mining exclusion, fish consumption designated use, PQLs, and
implementation policies and procedures. 61 FR 2766. The notice also
identified, and sought comment on, policies that EPA, Region 9,
intended to use to implement State narrative criteria as they relate to
toxicity, nutrients, and mercury.
The Court order in Defenders of Wildlife directs EPA to promulgate
final water quality standards 90 days after EPA proposes such standards
unless Arizona has adopted revised or new water quality standards which
EPA determines are in accordance with the CWA. In January 1996, ADEQ
adopted implementation procedures for the State's narrative nutrient
criteria. In April 1996, ADEQ adopted implementation procedures for the
State's narrative toxic criteria. On April 26, 1996, EPA, Region 9,
approved Arizona's implementation procedures for the State's narrative
nutrient and toxic criteria. Because EPA has
[[Page 20687]]
determined that Arizona has addressed EPA's 1993 disapproval action
regarding the absence of appropriate implementation procedures for
toxicity and nutrients through the adoption of procedures that are in
accordance with the Act, EPA is not promulgating provisions in the
final rule related to these implementation procedures.
ADEQ adopted revisions to its standards on March 22, 1996, and,
after obtaining the approval of the State's Regulatory Review Council,
filed revisions to its standards with Arizona's Secretary of State on
April 24, 1996. ADEQ's rulemaking repealed the mining related provision
(R18-11-103.2) disapproved by EPA, Region 9, in September 1993, and
established a revised exemption related to mining impoundments at R18-
11-102. In addition, ADEQ's rulemaking added the fish consumption use
to most of the waters which would have been designated with the fish
consumption use under EPA's proposal. The State's rulemaking also
deleted the appendix which prescribed PQLs from the State's water
quality standards regulations. On April 26, 1996, EPA, Region 9
approved these revised regulations thereby removing the need to
promulgate a Federal regulation addressing these issues.
ADEQ has also participated, with EPA, Region 9, and the U.S. Fish
and Wildlife Service, in the development of an interim approach to
protect predatory wildlife from mercury until appropriate numeric
criteria can be developed. In conjunction with Arizona's priority
pollutant program, ADEQ, in cooperation with the Arizona Game and Fish
Department, the U.S. Fish and Wildlife Service, and EPA will conduct a
tissue monitoring program to assess the magnitude and extent of mercury
bioaccumulation in the prey base of the bald eagle and other fish-
eating birds in Arizona. The monitoring program identifies further
actions related to sampling, source identification and remedy selection
which the agencies will undertake if mercury levels in fish are found
above a specified action level. Because pursuit of this monitoring
program is an important component in addressing the problem of mercury
contamination in Arizona waters, EPA has included the proposed
regulatory provision related to mercury in the final rule. In addition,
EPA is promulgating the fish consumption use designation for
waterbodies identified in EPA's proposal for which the State did not
adopt the fish consumption use designation. As explained more fully
below, should EPA decide to approve ``use attainability analyses''
recently submitted by Arizona, EPA will proceed expeditiously to
withdraw the revised use designations contained in today's rule.
C. Summary of Final Rule and Response to Major Comments
A description of EPA's final action, and a summary of major
comments regarding the proposal and EPA's response, are set forth
below. Additional comments and responses to comments are in the
administrative record.
1. ``Fish Consumption'' Use
Arizona has designated several uses for its waters, including uses
defined as ``fish consumption'', ``aquatic and wildlife (cold water
fishery)'', ``aquatic and wildlife (effluent dominated water)'',
``aquatic and wildlife (ephemeral)'', and ``aquatic and wildlife (warm
water fishery)''. See, R-18-11-101, and Appendix B of Title 18, Chapter
11, Article 1, of Arizona Administrative Rules and Regulations.
In September 1993, EPA disapproved the lack of the ``fish
consumption'' (FC) use for water bodies which Arizona designated as
having an ``aquatic and wildlife'' use. For the standards to be
approvable, EPA stated that the State must either revise its standards
to include the FC use, or submit ``use attainability analyses'' (UAAs),
for the subject waters. A UAA is a scientific assessment showing
whether it is feasible to attain a particular use. See, 40 CFR 131.3(g)
and 131.10(j).
ADEQ subsequently completed UAAs showing that it need not designate
the FC use for those effluent dominated or ephemeral waters which it
had not already designated as having the FC use. EPA approved those
UAAs in November 1995.
In December 1995, ADEQ proposed to revise its standards to add the
FC use to waters within the State which have the ``aquatic and wildlife
(cold water fishery)'' or ``aquatic and wildlife (warm water fishery)''
use. See, 1 Ariz. Admin. Reg. 2811 (Dec. 29, 1995), proposed R-18-11-
104 and Appendix B of Title 18, Chapter 11, Article 1, of Arizona
Administrative Rules and Regulations.
In January 1996, EPA proposed to designate the fish consumption use
for those waters which Arizona had designated as having an ``aquatic
and wildlife'' use, in those cases where the requirements for
completing a UAA had not been met. The affected stream segments and
water bodies were listed in proposed section 131.31(c). Each of the
affected waters were, at the time of EPA's proposal, designated by
Arizona as having the ``aquatic and wildlife (cold water fishery)'' or
``aquatic and wildlife (warm water fishery)'' use.
With the exception of fifteen waterbodies, Arizona's April 1996
final rulemaking established the FC use for all the waterbodies subject
to EPA's proposal.
EPA is not promulgating a Federal rule designating the FC use for
those waters which now have that designated use under Arizona's rules.
In addition, EPA is not promulgating a Federal rule designating the FC
use for Quarter Circle Bar Tank. EPA has determined that that waterbody
is located within the boundaries of the Navajo Reservation and this
rulemaking only applies to waters within the jurisdiction of the State
of Arizona. The spelling of two waterbodies has been corrected in the
final rule.
On April 3 and April 10, 1996, ADEQ submitted UAAs in support of
its determination not to designate the FC use for eleven of the
fourteen State waterbodies listed in EPA's proposal which did not
receive the FC use designation under Arizona's April 1996 rulemaking.
EPA is currently reviewing the analyses provided by the State. In
accordance with Region 9 practice in this area, the Region has also
sent out the new analyses for public review and comment to persons and
organizations with interests related to water quality standards
determinations in Arizona. EPA has asked for comments by May 15, 1996.
ADEQ intends to submit a UAA in support of its determination not to
designate the FC use for the three remaining waterbodies (Davidson
Canyon and Tinaja Wash in the Santa Cruz River Basin, and Chase Creek
in the Upper Gila River Basin) listed in EPA's proposed rule. EPA,
Region 9, will send out that UAA for public review and comment.
Because EPA is under court order to promulgate this regulation by
the end of April, and the State submitted UAAs with insufficient time
for the Agency to adequately review the documentation and solicit
public comment prior to its court-ordered deadline, EPA is promulgating
the fish consumption use designation for waterbodies identified in
EPA's proposal which do not now have the FC designated use. Should EPA
approve, after completing its review of the UAAs and public comments,
the State's determination that attaining the FC use is not feasible
with respect to a waterbody listed in today's rule, EPA will proceed
expeditiously to withdraw the revised use designation contained in
section 131.31(c) with respect to that waterbody. If EPA approves the
State's UAA prior to the effective date of this rule with respect to a
waterbody listed
[[Page 20688]]
in section 131.31(c), EPA intends to stay the effectiveness of the
Federal use designation with respect to that waterbody pending
withdrawal of that part of the rule by EPA.
EPA received a number of comments opposing provisions of the
proposed rule relating to fish consumption. One commenter submitted
extensive comments objecting to EPA's proposal to promulgate the FC
designated use, particularly with respect to the segment of the Salt
River from the I-10 bridge to the 23rd Avenue WWTP discharge. The
commenter contended that EPA should not have disapproved the lack of
the FC use on waters designated by Arizona as having the aquatic and
wildlife (warm water fishery) use. The commenter stated that EPA's
disapproval did not explain how the Arizona standards were inconsistent
with section 101(a)(2) of the Act, that EPA's reliance upon 40 CFR
131.10(j)(1) in its disapproval was inappropriate, and that a UAA was
not required in order to avoid designating the FC use for the subject
waters. The commenter stated that EPA rules and guidance documents do
not require a FC designated use if other water quality standards are
sufficient to protect the health of persons who may consume harvested
aquatic life, and that the Act does not require a specific FC use for
any waters at all. This commenter further stated that EPA has generated
no evidence to support its hypothesis that the aquatic and wildlife
(warm water fishery) designated use is not sufficient for the minimal
harvesting of edible aquatic life that could potentially occur on the
Salt River segment between the I-10 Bridge and the 23rd Avenue
wastewater treatment plant. The commenter stated that Arizona's use
designations and criteria, taken as a whole, are entirely
``consistent'' with the goals of the CWA, and that consistency is all
that is required in light of 40 CFR 131.5 and 131.6. The commenter
stated that the CWA and Arizona law require protection of only those
uses that are actually occurring or are reasonably foreseeable, and
that EPA erroneously assumed in this case that the Act requires the FC
use found in the Arizona water quality standards to apply to all river
segments regardless of local environmental conditions, the degree and
types of harvesting by humans, and the types of aquatic life in the
riverbed.
EPA continues to believe that EPA Region 9's disapproval of the
absence of fish consumption use designations for certain waterbodies
was consistent with the requirements of the CWA. EPA regulations
regarding use designations provide that a State ``must conduct a use
attainability analysis as described in 40 CFR 131.3(g) whenever the
State designates or has designated uses that do not include the uses
specified in section 101(a)(2) of the Act.'' 40 CFR 131.10(j)(1).
Section 101(a)(2) of the CWA provides that water quality ``shall
provide for the protection of fish, shellfish, wildlife and recreation
in and on the water'', and, in EPA's view, the ``protection'' of fish,
shellfish, and recreation necessarily includes ensuring that fish are
not so contaminated that they are unhealthful for human consumption.
Nonetheless, the State had failed to include designated uses that would
protect such aquatic life for purposes of human consumption, or to
perform a UAA demonstrating that this use was not attainable. EPA,
Region 9, therefore appropriately concluded that the State's standards
were not ``consistent with'' the goals of the CWA. Finally, while this
commenter asserts that a FC designated use is not necessary if other
standards are sufficient to protect the health of persons, the State
has not contended that it has adopted criteria applicable to these
waters that would protect human health. The State's existing water
quality criteria were derived to protect aquatic life itself, not
humans who consume it. Unlike aquatic life criteria, human health
criteria take into account many factors that must be considered to
ensure that pollutant residues in fish, when consumed by humans, do not
result in adverse health effects. See generally 40 CFR Part 132,
Appendices A and C, 60 FR 15393-15411 (March 23, 1995) (containing
methodologies for deriving aquatic life and human health criteria for
the Great Lakes Basin). EPA therefore believes that there is not a
reasonable basis to conclude that the State's aquatic life criteria
will provide protection for persons consuming fish from these specified
waterbodies.
This commenter apparently also would seek to place the burden on
EPA Regions to demonstrate that existing uses and criteria are not
adequate to protect human health, taking into account local
environmental conditions and consumption patterns, prior to
disapproving state standards that fail to include the uses reflected in
section 101(a)(2) of the Act. This position ignores the fact that,
under EPA regulations, a UAA is the appropriate mechanism by which
States can determine whether local environmental conditions and other
factors justify the absence of a use otherwise meriting protection
under the Act. Turning this process on its head and requiring EPA,
which has far less familiarity with local circumstances and conditions
than does the State agency, to make these determinations would be
impracticable and would significantly undermine the health protection
goals of the Act. Finally, the issue in Arizona was not whether the
State had reasonably concluded that existing standards for these
waterbodies would protect human health. Rather, it was the State's
failure to adopt standards protecting human health that precipitated
the Region's disapproval action.
One commenter stated that, even if an additional use designation
were necessary and supported by an administrative record, EPA has
failed to promulgate scientifically supportable, reasonable and
necessary numeric criteria to protect the use. The commenter stated
that the CWA requires numeric criteria only for those toxic pollutants
for which criteria have been published under section 304(a) of the CWA,
the discharge or presence of which in the affected waters could
reasonably be expected to interfere with those designated uses adopted
by the State, as necessary to support such designated uses, and that
EPA has not conducted the analysis required by this section to
determine what numeric criteria would be appropriate to support the new
FC use on the affected surface waters. The commenter stated that there
is no administrative record to support EPA's FC use and associated
numeric criteria for all surface waters, and that EPA should have
considered whether any of the surface waters potentially subject to the
new FC use would be entitled to a modification of the use on the basis
of the factors in 40 CFR 131.10(g). The commenter also stated that the
social and economic impact of the FC designations would be severe in
Phoenix, noting that some of the Phoenix storm water outfalls discharge
into the Salt River segment that would be reclassified under the
proposed rule. The commenter stated that the proposed rule could have a
substantial impact on storm water discharges and substantially increase
costs to the public without any demonstrated improvement in public
health. The commenter further stated that the upgrading of the Salt
River and other segments with the FC use could also have a ripple
effect that would result in more costly standards for upstream
ephemeral segments, noting that Arizona water quality standards appear
to require that designated uses for upstream segments shall not cause a
violation of water quality standards in downstream segments, and that
economic impact of the proposed FC use could spread
[[Page 20689]]
upstream to ephemeral waters that clearly do not warrant the FC use.
The comments regarding the appropriateness of criteria that will
now apply to these waterbodies appear to indicate that commenters have
misunderstood EPA's action. The State has itself adopted criteria that
it believes are appropriate for providing protection of persons
consuming fish from many State waters. EPA is not second-guessing this
determination by the State. EPA also disagrees that it was under a duty
to evaluate the attainability of the fish consumption use taking into
account the factors in 40 CFR 131.10(g). Again, under EPA regulations,
States have the opportunity and responsibility for conducting UAAs to
demonstrate that uses consistent with the goals of the CWA are not
attainable. The State had failed to do so here. EPA therefore was
within its authority to determine that the use designations needed to
be revised to be consistent with the goals in CWA section 101(a)(2).
The State remains free to determine, based on local environmental
conditions or the costs that it determines could be associated with the
revised use designations, to downgrade use designations in accordance
with 40 CFR 131.10(g). No commenters provided information during the
public comment period indicating that, in fact, the revised use
designations were not attainable according to the criteria contained in
section 131.10(g).
Another commenter also questioned whether the segment of the Salt
River from the I-10 bridge to the 23rd Avenue WWTP discharge should be
designated as having the fish consumption use. The commenter stated
that, if EPA's rationale for promulgating the fish consumption use is
simply because the stream segment had been designated by Arizona as
having the ``aquatic and wildlife (warm water fishery)'' use, then the
process and rationale for designating the segment is suspect and should
be reviewed.
Another commenter stated that the fish consumption designated use
should not be presumptively applied to all water bodies, and should be
applied only when it is shown that fishing is a legal, continuous, and
widespread use of a particular water body. The commenter objected to
allowing the addition of designated uses to a stream segment without
the requirement to make any particular showing while the removal of a
use may take place only after a comprehensive use attainability
analysis which is often beyond the financial or technical capability of
the individuals most directly affected by the inappropriately
designated use.
Another commenter sought clarification that EPA's designation of
the fish consumption use would be limited to water bodies which are
waters of the United States.
As explained previously, EPA believes that it was appropriate and
consistent with the requirements and goals of the CWA to promulgate
fish consumption use designations where the State has designated the
waters as supporting aquatic life. EPA disagrees that the CWA places a
burden on EPA or States to demonstrate legal, widespread and continuous
use of a waterbody before adopting a FC use designation. No such
restriction is evident in the language or legislative history of the
CWA. To support a particular use designation, it is sufficient that
such a use be attainable in the waterbody. Regarding the use
designation for the Salt River from the I-10 bridge to the 23rd Avenue
WWTP discharge, that segment is not addressed by today's rule since the
State adopted the FC use for this waterbody. See, R-18-11-101, and
Appendix B of Title 18, Chapter 11, Article 1, of Arizona
Administrative Rules and Regulations, as filed on April 24, 1996.
The one commenter is correct that the revised use designations only
apply to waters that meet the definition of waters of the United
States.
2. Water Quality Criteria Protective of Wildlife for Mercury
Arizona has established numeric criteria for mercury for ``aquatic
and wildlife'', ``fish consumption'', ``domestic water source'' and
other uses designated for its waters. See, Appendix A of Title 18,
Chapter 11, Article 1, of Arizona Administrative Rules and Regulations.
As part of its consultation with EPA regarding Arizona's water quality
standards pursuant to section 7 of the Endangered Species Act, the U.S
Fish and Wildlife Service (FWS) determined that Arizona's mercury
criteria for protection of aquatic and wildlife uses were developed
without consideration of bioaccumulative effects for predatory
wildlife, and the FWS identified the adoption of mercury criteria
protective of wildlife as a means to remove jeopardy to endangered and
threatened species in the context of the Endangered Species Act.
Based upon FWS's determinations, EPA, Region 9, in April 1994
disapproved Arizona's lack of water quality criteria protective of
wildlife for mercury.
While the FWS identified the adoption of a mercury criterion
protective of wildlife as a reasonable and prudent alternative to avoid
jeopardizing endangered and threatened wildlife species, further
discussions between EPA, ADEQ, Arizona Game and Fish Department, and
the FWS led to the development of an alternative program to address the
problem of mercury's impacts on endangered and threatened species. The
Service indicated its overall approval of this approach to dealing with
the problem of mercury as it relates to the protection of wildlife and,
on January 17, 1996, revised its determination which initially
identified adoption of a mercury criterion as a reasonable and prudent
alternative for removing jeopardy to endangered species. Accordingly,
in January 1996, EPA proposed section 131.31(f) to address the
deficiency in the State's standards related to mercury's effect on
wildlife, and solicited comment upon EPA's intent to implement a
monitoring and source identification program to assist EPA in
implementing Arizona's narrative toxicity criteria.
ADEQ has continued to participate, with EPA, Region 9, and the U.S.
Fish and Wildlife Service, in the development of an interim program to
protect predatory wildlife from mercury until appropriate numeric
criteria can be developed. The program developed by the agencies is
described in ``Arizona Priority Pollutant Sampling Program, ADEQ/AGFD/
USFWS/USEPA Cooperative Program'', March 29, 1996. Under that program,
ADEQ, in cooperation with the Arizona Game and Fish Department, the
U.S. Fish and Wildlife Service, and EPA will conduct a tissue
monitoring program to assess the magnitude and extent of mercury
bioaccumulation in the prey base of the bald eagle and other fish-
eating birds in Arizona. This monitoring program identifies further
actions related to sampling, source identification, and remedy
selection which the agencies will undertake if mercury levels in fish
are found above a specified action level.
EPA received comment upon its proposal to adopt section 131.31(f)
and upon the monitoring and source identification program identified in
the Federal Register notice. A commenter stated that, even with the
implementation procedures proposed by EPA, Arizona's narrative toxicity
criteria would not protect against food chain accumulation in birds and
other fish-eating species. The commenter contended that there was no
deadline for completion of the monitoring and stated that there is no
need to wait for further fish tissue monitoring because recent tests in
certain lakes have found mercury levels exceeding the 0.1 mg/kg level
identified under the proposed
[[Page 20690]]
monitoring program as the trigger for further control efforts. The
commenter also noted that a mercury criterion to protect against food
chain accumulation has been established for the Great Lakes, and that a
similar criterion could be developed for Arizona. The commenter stated
that the Arizona criterion might differ if there were evidence that
mercury uptake rates among Arizona fishes are markedly different than
among Great Lakes fishes, but that EPA has offered no evidence to
suggest this is so.
EPA's long-term goal is the adoption of a mercury criterion for
wildlife. However, despite the claims by the commenter, the data
currently are not available to derive a mercury criterion for wildlife
in Arizona using the methodology developed for the Great Lakes. A
detailed discussion of the data needed to develop a criterion is
discussed below. In lieu of a numeric criterion, EPA believes that the
approach of using Arizona's narrative criterion in R18-11-108 for
toxicity in combination with the implementation of the tissue
monitoring program will satisfy the requirements of the CWA to provide
protection of designated uses, including wildlife protection and
propagation.
With regard to the commenter's general point regarding the
necessity of having numeric criteria in order to meet the requirements
of the CWA, it should be emphasized that the absence of a numeric
criterion for a specific pollutant is not unusual. EPA has not
published criteria guidance for the protection of aquatic life for all
pollutants. To account for this unavoidable absence of numeric criteria
for all pollutants, States include narrative criteria as part of their
standards. Narrative criteria are intended to cover all pollutants and
endpoints for which the state has not adopted numeric criteria. The
role of narrative criteria in the CWA's regulatory program is evident
in EPA's permitting regulations which include explicit provisions
requiring permit limits to ensure narrative criteria are not exceeded.
40 CFR 122.44(d)(1)(vi).
In addition, the commenter was concerned that there was no deadline
for completion of the tissue monitoring program. However, sampling will
commence in the spring of 1996 and continue through the year 2000. The
FWS biological opinion, and the FWS's revised determination regarding
reasonable and prudent alternatives, are included in the administrative
record for this rulemaking.
The purpose of the tissue monitoring program is to provide
information that can be used to assist in evaluating the magnitude of
mercury contamination of wildlife in Arizona. The monitoring program
was developed in consultation with the FWS, ADEQ, and Arizona Game and
Fish Department. EPA believes the sampling program is a reasonable
first step for identifying those areas in the State where problems may
exist and for designing control strategies that will help remediate
such problems to benefit wildlife protection in Arizona. The program
will assist EPA in determining whether contaminated fish species are
isolated cases due to particular sources of pollution (in which case
development of permit limits for a particular discharger based on the
State's existing narrative criterion may be the best means of remedying
the problem) or whether they are indicative of a larger State-wide
problem which needs to be addressed (potentially based on state-wide
numeric criteria, when development of such criteria are technically
feasible). If during the tissue monitoring it is determined that the
mercury tissue levels are consistently found above the action level of
0.1 mg/kg in the prey base of bald eagle or Yuma clapper rail, then
steps will be taken to identify the sources of the contamination and
identify possible corrective measures.
EPA is concerned with the elevated mercury levels at the
waterbodies identified by the commenter. While neither of the two lakes
specifically cited by the commenter were identified by FWS as priority
water bodies for sampling for mercury for threatened and endangered
species, EPA is seeking to identify the sources contributing to the
mercury levels detected in the two lakes and corrective measures for
them.
The commenter is correct that a methodology for deriving wildlife
criteria and a mercury criterion for wildlife were recently established
in the Great Lakes Water Quality Initiative (``GLI''). It is important
to note that the GLI wildlife methodology and criteria were developed
over several years with input from two national conferences and several
consultations with EPA's Science Advisory Board along with over 5000
public comments on the proposed GLI. In addition to the large effort
undertaken to develop the methodology and criteria, EPA stated very
clearly in the Supplementary Information Document to the GLI that:
EPA would like to reemphasize that the provisions in the
proposed and final Guidance are expressly applicable only to the
waters of the Great Lakes System * * * States or Tribes with waters
outside the Great Lakes Systems, in whole or in part, are encouraged
to implement any of the Guidance methodologies or procedures that
are scientifically and technically appropriate for their situations.
Supplementary Information Document, p. 82.
EPA believes the methodology used in the GLI for deriving a mercury
wildlife criteria may be appropriate for use in Arizona with some
modifications based on the specific conditions in Arizona. This does
not mean, however, that a criterion can simply be developed using the
data from the Great Lakes. In addition, the commenter implies that the
only question which needs to be considered when applying the GLI
methodology is whether the mercury uptake rates among Arizona fishes
are markedly different than among Great Lakes fishes. In fact, the
bioaccumulation potential is only one component that goes into the
derivation of wildlife criteria.
ADEQ reviewed the GLI methodology for deriving wildlife criteria to
evaluate its applicability to Arizona and submitted their comments to
EPA on May 12, 1995, which are part of the administrative record. EPA
agrees with ADEQ that ecological conditions differ in Arizona from the
Great Lakes region. Therefore direct application of the GLI methodology
without modification is probably not appropriate. Development of a
wildlife criterion to protect wildlife from mercury in Arizona will
likely require the completion of tasks analogous to those undertaken by
EPA in the GLI. This effort is necessary because several components
within the wildlife methodology are specific to the type of aquatic
ecosystem and associated wildlife species. It would not be
scientifically defensible to directly adopt the mercury wildlife
criterion for the Great Lakes in the regulation of Arizona ecosystems
without further analyses to support such a decision. Issues that will
require further data evaluation and analyses include: (1) The
establishment of representative wildlife species for aquatic ecosystems
in Arizona, including a determination of their water and food intake
rates and the prey that comprises their diets; (2) a determination of
appropriate mercury toxicity thresholds for the representative wildlife
species identified for Arizona ecosystems; and (3) the establishment of
mercury bioaccumulation factors appropriate for Arizona ecosystems and
their associated food chains.
The technical analyses needed to establish the representative
species (and their associated attributes) and appropriate mercury
bioaccumulation factors will likely require the largest effort because
these items are most closely associated with the site-specific nature
of wildlife criteria. In addition to
[[Page 20691]]
the data evaluation and analyses, peer review would be appropriate for
any wildlife methodology and associated criteria developed in Arizona
given the numerous technical and scientific issues involved in
developing such a methodology.
In summary, while EPA believes the development of a wildlife
criterion for mercury may be possible, with some modifications, using
the methodology developed in the GLI, the data to support the
development of such a criterion are not currently available. Therefore,
until this information is collected, EPA believes the approach of
relying on the narrative criterion combined with the tissue monitoring
program will provide protection of wildlife in a manner consistent with
the requirements of the Endangered Species Act and Clean Water Act.
EPA is continuing to evaluate the comments upon the substance of
the monitoring program, for the purpose of determining whether
modifications to the program are warranted.
Another commenter indicated that EPA's disapproval of Arizona's
lack of water quality criteria protective of wildlife for mercury
should have been limited to the need for a mercury criterion applicable
to only those surface waters where affected endangered species are
likely to be adversely impacted.
EPA's disapproval action was based upon the biological opinion
issued by the FWS, which found that the State's existing criteria for
mercury failed to consider the effects of bioaccumulation of pollutants
on wildlife. Because bioaccumulative effects may extend beyond
threatened and endangered species to other species of wildlife, EPA's
disapproval appropriately extended to Arizona's waters generally.
D. Summary of Provisions in Proposal Not Included in Final Rule
1. Mining Exclusion
In September 1993, EPA, Region 9, disapproved the exclusion related
to mining contained in the State's standards at Arizona Administrative
Rules and Regulations, R18-11-103.2. That exclusion provided that
Arizona's standards did not apply to certain impoundments and
associated ditches and conveyances used in the extraction,
beneficiation and processing of metallic ores.
In EPA's January 1996 Federal Register notice of proposed
rulemaking, EPA sought comment on a proposed Federal rule that would
adopt standards for any waters of the United States not governed by
State standards due to R18-11-103.2, as that State rule then existed.
In the preamble to the proposed Federal rule, EPA also solicited
comment regarding revisions to R18-11-102 that the State had proposed
in December 1995 regarding the applicability of its standards to
impoundments and associated ditches and conveyances used in the
extraction, beneficiation and processing of metallic ores.
In April 1996 Arizona repealed R18-11-103 in its entirety and
revised R18-11-102 by, among other things, adding provisions related to
the applicability of the State's standards to mining-related
impoundments. R18-11-102 as promulgated differs in certain respects
from the proposed revision upon which EPA sought comment in its January
1996 Federal Register notice.
EPA has determined that Arizona's repeal of R18-11 103.2, and
Arizona's adoption of revisions to R18-11-102 regarding the
applicability of the State's standards to certain impoundments and
associated ditches and conveyances, are consistent with the CWA, and
that a Federal rule with respect to such impoundments and associated
ditches and conveyances is not therefore needed to meet the CWA's
requirements. EPA believes that the State's revision to R18-11-103.2
adequately addresses EPA's concerns because it excludes from standards
only those waters that are not waters of the United States.
Accordingly, EPA is not promulgating the provision which it proposed
regarding mining-related impoundments, and comments opposing the
adoption of the proposed Federal rule are moot.
Other commenters objected to mining-related exclusions under
consideration in Arizona's rulemaking or encouraged adoption of a
Federal rule in order to clarify the applicability of water quality
standards to mining-related activities. One commenter supported the
application of water quality standards to surface water bodies that
have been converted into mining impoundments. The commenter also
indicated that EPA's rule should address the extent to which water
quality standards are applicable in cases involving stream diversions
and the placement of mining wastes in dammed creek beds or valleys. The
commenter indicated its support for broadening the protections
associated with water quality standards to cover impoundments built in
the drainages of diverted water bodies. Another commenter suggested
that uncertainty would be created if Arizona adopted the mining-related
revisions then under consideration. The commenter noted that it would
be difficult for persons to determine whether the particular conditions
for exempting water bodies under Arizona's proposal had been met. The
commenter suggested that accuracy and simplicity might be better served
by deleting the State's mining impoundment exemption. EPA considered
these comments prior to determining that Arizona's final rulemaking
with respect to mining impoundments is consistent with the CWA and that
a Federal rule is unneeded.
Under section 303 of the CWA, States must adopt standards for all
waters of the United States within the State. See, Kentucky v. Train, 9
ERC 1280, 1281 (E.D. Ky. 1976). States, however, need not adopt
standards for any water body which is not a water of the United States.
EPA has defined waters of the United States to include, among other
waters, rivers and streams the use, degradation, or destruction of
which would affect or could affect interstate commerce; impoundments of
such waters are also waters of the United States. See, 40 CFR 122.2 and
40 CFR 230.3(s). Accordingly, EPA's disapproval was based on the
premise that Arizona must adopt standards governing mining impoundments
which are waters of the United States. In the view of EPA, Region 9,
the State's revised mining language accords with the CWA because only
impoundments that are not waters of the United States will not be
subject to standards. EPA agrees that additional guidance addressing
the extent to which water quality standards are applicable in cases
noted by the commenters is desirable.
2. Practical Quantitation Limits
At the time of EPA's actions disapproving portions of Arizona's
water quality standards, Arizona had prescribed practical quantitation
limits (PQLs) in the regulations establishing its water quality
standards. See, R18-11-120, and Appendix C of Title 18, Chapter 11,
Article 1, of Arizona Administrative Rules and Regulations (1992).
Under Arizona's regulations, ``practical quantitation limit means the
lowest level of quantitative measurement that can be reliably achieved
during routine laboratory operations.'' R18-11-101.37. In September
1993, EPA, Region 9, disapproved Arizona's inclusion of the PQLs in its
regulations. EPA, Region 9, stated that, in order for the standards to
be approvable under CWA section 303(c), they must protect the
designated uses and must not be compromised by constraints related to
analytical methods. EPA, Region 9, further stated that Arizona may
choose to include the
[[Page 20692]]
PQLs in a policy or guidance document separate from the standards
regulations.
In December 1995, ADEQ proposed deleting the PQLs prescribed in
Appendix C from its regulations and adopting the PQLs in a guidance
document. See, 1 Ariz. Admin. Reg. 2811 (Dec. 29, 1995), proposed R18-
11-120.
In its January 1996 action, EPA proposed to adopt a Federal rule
that would provide that Appendix C of Arizona's regulations would not
be water quality standards for the purposes of the CWA.
In its April 1996 rulemaking, Arizona deleted Appendix C from its
regulations. Accordingly, EPA is not promulgating a rule addressing
this issue.
3. Implementation Policies
In September 1993, EPA disapproved the lack of implementation
procedures for Arizona's narrative nutrient criteria. Arizona's
narrative nutrient criteria provides that navigable waters shall be
free from pollutants in amounts or combinations that cause the growth
of algae or aquatic plants that inhibit or prohibit the habitation,
growth or propagation of other aquatic life or that impair recreational
uses. See, R18-11-108.A.6. At the time of the disapproval, Arizona had
not adopted an implementation process for its narrative criteria.
Also in September 1993, EPA, Region 9, disapproved the lack of
implementation procedures for Arizona's narrative toxicity criterion.
Arizona's narrative toxicity criterion provides that navigable waters
shall be free from pollutants in amounts or combinations that are toxic
to humans, animals, plants and other organisms. See, R18-11-108.A.5. At
the time of the disapproval, Arizona had not adopted implementation
procedures for toxicity.
In its January 1996 proposal, EPA proposed to adopt a Federal rule
to address these deficiencies in the State's standards. Proposed 40 CFR
131.31(e). In its January 1996 proposal, EPA also solicited comment
regarding the Region's use of two policies to guide the Region's
implementation of the subject narrative criteria: ``EPA, Region 9,
Policy for the Implementation of Arizona's Narrative Nutrient
Criteria'' and ``EPA, Region 9, Policy on Using Biomonitoring to
Implement Arizona's Narrative Toxicity Criterion''. As noted in EPA's
January 1996 Federal Register notice, EPA does not believe that it is
necessary that the State itself adopt regulatory provisions addressing
these implementation issues. EPA explained in the Federal Register
notice that such policies and procedures may be contained either in
water quality standards regulations themselves, or may be included in a
standards submission as policy or guidance documents. EPA also stated
in its January 1996 preamble that, should the State adopt acceptable
policies and procedures prior to promulgation of a final rule by EPA,
the Agency would not include the subject regulatory provisions in the
final rule.
In January 1996, Arizona adopted a policy for the implementation of
the State's narrative criteria for nutrients. ADEQ, Water Quality
Assessment Unit, ``Implementation Guidelines for the Narrative Nutrient
Standard''. In April 1996, Arizona adopted a policy for the
implementation of the State's narrative criteria for toxicity. ADEQ,
``Interim Whole Effluent Toxicity Implementation Guidelines for
Arizona''.
After reviewing the State-adopted implementation policies and the
comments received in response to the January 1996 Federal Register
notice, EPA, Region 9, approved the policies adopted by the State. With
respect to EPA's prior disapproval of Arizona's standards due to the
lack of implementation policies related to narrative criteria for
nutrients and toxicity, EPA has determined that Arizona's water quality
standards, as supplemented by the State's newly adopted implementation
plans, are consistent with the CWA and that no new Federal water
quality standard is necessary to meet the CWA's requirements.
Accordingly, EPA is not promulgating proposed 40 CFR 131.31(e).
EPA received comments regarding its implementation policies in
response to the January 1996 Federal Register notice. Because EPA has
approved Arizona's implementation policies, and therefore not
promulgated a final rule related to these policies, those comments are
no longer relevant to this rulemaking action. However, those comments
regarding EPA's policies that are material to EPA's decision to approve
Arizona's policies have been considered by the Agency in its approval
action and responses to those comments have been prepared and are part
of the record supporting EPA's approval of Arizona's narrative toxicity
and narrative nutrient standards implementation policies. A number of
comments having to do with the appropriateness of adopting Federal
implementation policies, or the necessity of having State policies, are
moot since the State has now adopted its own implementation policies.
Other comments received were specific to EPA's own toxicity policy for
Arizona (``EPA, Region 9, Policy on Using Biomonitoring to Implement
Arizona's Narrative Toxicity Criterion''). These comments addressed the
purpose and function of toxicity requirements in permits. Since
Arizona's toxicity policy does not address how the narrative toxicity
standard will be implemented in permits, these comments have not been
responded to in EPA's action approving the Arizona toxicity policy. EPA
will take these comments into account as we further refine the
implementation of toxicity narrative standards in National Pollutant
Discharge Elimination System permits in Arizona.
E. Endangered Species Act
Pursuant to section 7 of the Endangered Species Act (16 U.S.C. 1656
et seq.), Federal agencies must assure that their actions are unlikely
to jeopardize the continued existence of listed threatened or
endangered species or adversely affect designated critical habitat of
such species. Today's action adds the fish consumption use to various
waters which previously did not have the protections afforded by that
designation, and establishes that a monitoring program will be
undertaken to implement the State's narrative water quality criteria
with respect to the effects of mercury on wildlife.
EPA has completed section 7 consultation with the FWS regarding
this action.
F. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, of State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the
[[Page 20693]]
President's priorities, or the principles set forth in the Executive
Order.
Because the annualized cost of this final rule would be
significantly less than $100 million and would meet none of the other
criteria specified in the Executive Order, it has been determined that
this rule is not a ``significant regulatory action'' under the terms of
Executive Order 12866, and is therefore not subject to OMB review.
G. Executive Order 12875, Enhancing the Intergovernmental
Partnership
In compliance with Executive Order 12875 EPA has involved state,
local, and tribal governments in the development of this rule. EPA,
Region 9, consulted with ADEQ through conference calls, meetings and
review of draft and final documents. EPA held a meeting on December 14,
1995, in Phoenix, AZ, with members of the potentially impacted public
(e.g., municipalities, industries and environmental groups) to discuss
the proposed action. EPA held a public hearing on the proposed action
on February 29, 1996.
H. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires EPA
to assess whether its regulations create a disproportionate effect on
small entities. Among its provisions, the Act directs EPA to prepare
and publish an initial regulatory flexibility analysis (IRFA) for any
proposed rule which may have a significant impact on a substantial
number of small entities. For purposes of this rulemaking, small
entities are small dischargers, whether industrial or municipal.
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 605(b)), the Administrator certifies that this rule will not
have a significant economic impact on a substantial number of small
entities. This rule is limited to the designation of the fish
consumption use for fourteen waters within Arizona, and the requirement
that EPA or Arizona implement a monitoring program to assess attainment
of a specified State-adopted water quality standard. In light of the
limited geographic scope of the use designations included in the final
rule adopted by EPA (i.e., fourteen waterbodies), the Agency does not
believe that there will be significant impacts associated with this
aspect of the rule. The mercury monitoring program, moreover, will be
carried out by EPA and ADEQ, and does not itself impose any additional
obligations on small entities.
I. 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 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.
As noted above, this rule is limited to the designation of the fish
consumption use for fourteen waters within Arizona, and the requirement
that EPA or Arizona implement a monitoring program to assess attainment
of a State-adopted water quality standard. EPA has determined that this
rule contains no regulatory requirements that might significantly or
uniquely affect small governments. EPA has also determined that this
rule does not contain a Federal mandate that may result in expenditures
of $100 million or more for State, local, and tribal governments, in
the aggregate, or the private sector in any one year. Thus, today's
rule is not subject to the requirements of sections 202 and 205 of the
UMRA.
J. Paperwork Reduction Act
This action requires no information collection activities subject
to the Paperwork Reduction Act, and therefore no information collection
request (ICR) will be submitted to the Office of Management and Budget
(OMB) for review in compliance with the Paperwork Reduction Act, 44
U.S.C. 3501 et seq.
List of Subjects in 40 CFR Part 131
Environmental protection, Water pollution control, Water quality
standards, Toxic pollutants.
Dated: April 29, 1996.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, part 131 of title 40 of
the Code of Federal Regulations is amended as follows:
PART 131--WATER QUALITY STANDARDS
1. The authority citation for part 131 continues to read as
follows:
Authority: 33 U.S.C. 1251 et seq.
Subpart D--[Amended]
2. Section 131.31 is amended by adding paragraphs (b), and (c), to
read as follows:
Sec. 131.31 Arizona.
* * * * *
(b) The following waters have, in addition to the uses designated
by the State, the designated use of fish consumption as defined in R18-
11-101 (which is available from the Arizona Department of Environmental
Quality, Water Quality Division, 3033 North Central Ave., Phoenix, AZ
85012):
COLORADO MAIN STEM RIVER BASIN:
Hualapai Wash
MIDDLE GILA RIVER BASIN:
Agua Fria River (Camelback Road to Avondale WWTP)
Galena Gulch
Gila River (Felix Road to the Salt River)
Queen Creek (Headwaters to the Superior WWTP)
Queen Creek (Below Potts Canyon)
SAN PEDRO RIVER BASIN:
Copper Creek
SANTA CRUZ RIVER BASIN:
Agua Caliente Wash
Nogales Wash
Sonoita Creek (Above the town of Patagonia)
Tanque Verde Creek
Tinaja Wash
Davidson Canyon
UPPER GILA RIVER BASIN
[[Page 20694]]
Chase Creek
(c) To implement the requirements of R18-11-108.A.5 with respect to
effects of mercury on wildlife, EPA (or the State with the approval of
EPA) shall implement a monitoring program to assess attainment of the
water quality standard.
[FR Doc. 96-11080 Filed 5-6-96; 8:45 am]
BILLING CODE 6560-50-P
