[Federal Register Volume 61, Number 19 (Monday, January 29, 1996)]
[Proposed Rules]
[Pages 2766-2772]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1550]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 131
[WH-FRL-5408-3]
Water Quality Standards for Surface Waters in Arizona
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule and request for comments.
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SUMMARY: EPA is proposing water quality standards that would be
applicable to waters of the United States in the State of Arizona. The
proposed standards address those six aspects of Arizona's water quality
standards that EPA, Region 9 disapproved in 1993 and 1994. EPA is
taking this action at this time pursuant to a court order to propose
such standards by January 31, 1996. The proposed standards would
establish standards for waters that are exempt from State-adopted
standards due to a State rule related to mining, designate fish
consumption as a use for certain waters, and make certain provisions in
the State's standards related to ``practical quantitation limits''
inapplicable for Clean Water Act purposes. In addition, this notice
proposes requirements related to implementation of certain narrative
criteria in the State's standards, and solicits comment on the policies
that EPA, Region 9, intends to use to implement these criteria as they
relate to nutrients, chronic toxicity, and the effects of mercury on
wildlife.
DATES: EPA will hold a public hearing on its proposed actions on
February 29, 1996, in Phoenix, AZ. EPA will consider written comments
on the proposed actions received by February 28, 1996, or March 8,
1996.
ADDRESSES: Comments should be addressed to Catherine Kuhlman, Chief,
Permits and Compliance Branch, W-5, Water Management Division, EPA,
Region 9, 75 Hawthorne St., San Francisco, CA 94105. The public hearing
will be held February 29, 1996, from 2 p.m. to 4 p.m. at the Arizona
Department of Environmental Quality (ADEQ) Public Meeting Room, South
Mall, ADEQ, 3033 North Central Ave., Phoenix, AZ 85012. This action's
administrative record is available for review and copying at 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. In the event of a government shutdown, also call (415)
744-1978 for information. 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. 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 the 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) (33 U.S.C. 1313(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'' in Arizona's
standards. In April
[[Page 2767]]
1994, EPA, Region 9, also disapproved Arizona's lack of water quality
criteria protective of wildlife for mercury.
Arizona is addressing the disapproved elements during the course of
its current triennial review of its standards. The Arizona Department
of Environmental Quality (ADEQ) has held public meetings and received
public comment and, on December 29, 1995, published proposed revisions
to its standards. See, 1 Ariz. Admin. Reg. 2811. ADEQ has indicated
that it intends as part of its current rulemaking to revise the
provision exempting mining impoundments. ADEQ has also indicated that
it intends to revise its standards to add the fish consumption use to
waters which Arizona has already designated as having the aquatic and
wildlife (cold water fishery) or aquatic and wildlife (warm water
fishery) uses. ADEQ has also indicated that it intends to delete its
list of practical quantitation limits (PQLs) from its water quality
standards regulations. Under ADEQ's anticipated timetable, revised
water quality standards pursuant to the current triennial review will
become effective no later than October 1996.
In addition, ADEQ completed a ``use attainability analysis'' (UAA)
related to the fish consumption use for effluent dominated waters, and
a UAA related to fish consumption and full body contact uses for
ephemeral waters in the State. EPA, Region 9, approved those UAAs in
November 1995.
ADEQ is participating, 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. Moreover, ADEQ intends to complete implementation
procedures for the State's narrative toxic and nutrient criteria. ADEQ
is developing its guidance document pertaining to the narrative
nutrient standard. ADEQ has also committed to develop implementation
procedures for its narrative toxic criterion. ADEQ expects to submit
the final guidance document pertaining to its narrative criterion to
EPA no later than December 1996.
Although Arizona has made progress in revising its standards, it
has not yet completed its process for revising the portions of the
State's standards to address EPA, Region 9's disapprovals in September
1993 and April 1994.
On November 1, 1995, the United States District Court for the
District of Arizona ordered EPA, within 90 days, to prepare and publish
proposed regulations setting forth revised or new water quality
standards for those standards disapproved in September 1993 and April
1994. Defenders of Wildlife v. Browner, Docket No. Civ 93-234 TUC ACM.
Consistent with the Court's order, this Federal Register notice
proposes standards related to the mining exclusion, fish consumption
designated use, PQLs, and implementation policies and procedures as
they relate to the disapproval. This notice also describes policies
that EPA, Region 9, intends to use in order to implement State
narrative criteria as they relate to toxicity, nutrients, and mercury.
The Court's order also directs EPA to promulgate final water quality
standards 90 days after proposal unless Arizona has adopted revised or
new water quality standards which EPA determines are in accordance with
the CWA.
Finally, it should be noted that EPA's longstanding practice in the
water quality standards program is to remove any final federal rule
after the State adopts appropriate rules which meet the CWA
requirements and are approved by EPA. Thus, EPA strongly encourages the
State to adopt appropriate standards so that EPA can remove any final
rule adopted subsequent to this proposal.
B. Proposed Standards
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 provides that
Arizona's standards do not apply to:
``Man-made surface impoundments and associated ditches and
conveyances used in the extraction, beneficiation and processing of
metallic ores, including pregnant leach solution ponds, raffinate
ponds, tailing impoundments, decant ponds, concentrate or tailing
thickeners, blowdown water ponds, ponds and sumps in mine pits
associated with dewatering activity, ponds holding water that has
come into contact with process or product and that is being held for
recycling, spill or upset catchment ponds or ponds used for on-site
remediation provided that any discharge from any such surface
impoundment to a navigable water is permitted under the National
Pollutant Discharge Elimination System program.''
In its December 1995 notice, ADEQ proposed to delete R18-11-103 in
its entirety, and proposed to revise R18-11-102 to provide that
Arizona's standards do not apply to:
``Man-made surface impoundments and associated ditches and
conveyances used in the extraction, beneficiation and processing of
metallic ores, including pits, pregnant leach solution ponds,
raffinate ponds, tailing impoundments, decant ponds, concentrate or
tailing thickeners, blowdown water ponds, ponds and sumps in mine
pits associated with dewatering activity, ponds holding water that
has come in contact with process or product and that is being held
for recycling, spill or upset catchment ponds, or ponds used for on-
site remediation that are located on either lands that were not and
are not surface waters or that are located on fast lands.''
Under the rules proposed by ADEQ in December 1995, the term ``fast
lands'' means
``land that was once a surface water but no longer remains a
surface water because it has been and remains legally converted to
land by the discharge of dredged or fill material that: (1) Was
authorized by a section 404 permit; (2) exempt from section 404
permit requirements; or (3) occurred before there was a section 404
permit requirement for the discharge of the dredged or fill
material.''
See, proposed R18-11-101.24.
Under section 303 of the CWA, States must adopt standards for
waters of the United States within the State. States 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.
While many of the mining impoundments which Arizona apparently
intended to exclude from standards by R18-11-103.2 may not be waters of
the United States, the rule's blanket exemption does not distinguish
among water bodies based upon their status as waters of the United
States, and therefore has the potential to exclude from standards a
water body that is a water of the United States. For example, mining-
related impoundments made by damming a natural stream or river would
appear to be exempt from Arizona's standards under R18-11-103.2 if any
discharge from the impoundment is permitted under section 402 of the
CWA or if the stream or river is fully dammed so that any release to a
water of the United States is prevented.
In order to ensure that the standards governing waters of the
United States in Arizona are consistent with the CWA, EPA is proposing
to adopt standards for any waters of the United States not governed by
State standards due to R18-11-103.2. Under the rule proposed by EPA, if
a water of the United States governed by R18-11-103.2 is an impoundment
of a water of the United States, it would have the standards of the
water body impounded. If a water of the United States governed by R18-
11-
[[Page 2768]]
103.2 is not such an impoundment, under the proposed rule it will have
the standards of the waterbody to which it is a tributary. Under the
proposed rule, only those water bodies which are waters of the United
States will be governed by such standards. Water bodies described in
R18-11-103.2 which are not waters of the United States are, of course,
not subject to water quality standards under the CWA, including the
standards that would be adopted in this rulemaking.
EPA is seeking comment on the Federal rule proposed in this notice.
In particular, EPA is seeking comment identifying any cases in which a
commenter believes that a water of the United States would have an
inappropriate water quality standard if the proposed Federal rule is
adopted. EPA is also seeking comment on the exclusion which Arizona has
proposed in its December 29, 1995, notice.
2. ``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 has completed UAAs showing that it need not designate the FC
use for those effluent dominated or ephemeral waters which it has 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, proposed R-18-11-104 and Appendix B of Title 18, Chapter 11,
Article 1, of Arizona Administrative Rules and Regulations. However,
ADEQ has not completed that revision to its regulations.
Section 101(a)(2) (33 U.S.C. 1251(a)(2)) of the CWA establishes
water quality goals for the nation, including a goal of water quality
which provides for the protection and propagation of fish and wildlife
and provides for recreation in and on the water by 1983. EPA's rules
regarding the establishment of water quality standards confirm that
such standards should, whenever attainable, provide water quality which
satisfies the section 101(a)(2) goal. See, e.g., 40 CFR 131.2,
131.3(i), 131.6, and 131.20(a). In addition, whenever a State has
designated uses that do not include the uses specified in section
101(a)(2), the State must conduct a UAA. 40 CFR 131.10(j). Section
101(a)(2) states that water quality should provide for the protection
of fish, and EPA has implemented this provision in the past by seeking
to ensure that such fish are suitable for human consumption. See, e.g.,
40 CFR 131.36 (containing toxics criteria for those states not
complying with section 303(c)(2)(B) of the CWA). Accordingly, EPA is
proposing to designate the fish consumption use for those waters in
Arizona having an ``aquatic and wildlife'' use, in those cases where
the requirements for completing a UAA have not been met.
The proposed Federal rule would add the FC use to 100 stream
segments or other water bodies. The affected stream segments and water
bodies are listed in proposed section 131.31(c). Each of the affected
waters has already been designated by Arizona as having the ``aquatic
and wildlife (cold water fishery)'' or ``aquatic and wildlife (warm
water fishery)'' use. EPA believes that only six NPDES permits allow
discharges to the affected waters, and that none of those permits would
have to be modified at this time to assure the FC use is met.
EPA is seeking comment on the proposed addition of the FC use to
the waters described.
3. Practical Quantitation Limits
Arizona 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. Arizona's regulations define
``practical quantitation limit'' as 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 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 PQLs in
a policy or guidance document separate from the standards regulations.
Inclusion of specific numeric PQLs in water quality standards is
inappropriate because the criteria must be set at levels protective of
the designated uses. See section 303(c)(2)(A). While constraints in the
ability of analytical methods to detect pollutants below certain levels
may be an appropriate factor in assessing compliance of a particular
discharger with water quality-based effluent limitations, the inclusion
of pollutant-specific numeric PQLs in the water quality standards
themselves has the potential to compromise the criteria adopted by the
State in its standards.
In December 1995, ADEQ proposed deleting the PQLs now prescribed in
Appendix C from its regulations and adopting the PQLs in a guidance
document. See, proposed R18-11-120. ADEQ has not completed its proposed
rulemaking, nor has it completed its procedures for adopting the PQLs
in the form of guidance.
EPA is proposing to adopt a provision in this federal rule that
would modify the purpose of the PQLs prescribed in Arizona's water
quality standards regulations, but this provision would not otherwise
modify Arizona's water quality standards regulations as they relate to
derivation of water quality criteria. Under the proposed Federal rule,
the practical quantitation limits in Appendix C would not be water
quality standards for the purposes of the CWA. EPA is seeking comment
on the proposal.
C. Implementation Policies
Certain of the disapproved elements of Arizona's standards relate
to procedures for implementing the state's narrative water quality
criteria contained in R18-11-108. EPA has proposed two water quality
standard provisions that would require the identification of
appropriate procedures and methods for interpreting and implementing
the state's narrative criteria with respect to toxicity and nutrients,
and the implementation of a monitoring program related to mercury, in
order to implement the requirements of R18-11-108. See proposed
sections 131.31 (e) and (f). As EPA explained in its disapproval
actions, 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
[[Page 2769]]
guidance documents. EPA's position is that there are advantages to
detailing such implementation procedures in the form of guidance rather
than regulation, since guidance leaves the implementing agency
flexibility in addressing the multitude of conditions and circumstances
that can arise in implementation of the criteria. Guidance can also be
revised more readily in response to advances in our understanding of
these issues. Therefore, in addition to proposing the language
contained in sections 131.31 (e) and (f), EPA is soliciting public
comment on guidance documents EPA intends to use in carrying out this
provision. The particulars of these proposals are discussed below.
EPA is proposing the language in sections 131.31(e) and (f) in
compliance with section 303(c)(4) of the CWA and the District Court's
order in Defenders of Wildlife. However, as stated in EPA's
disapprovals, EPA does not believe that it is necessary that the State
itself adopt regulatory provisions addressing these implementation
issues. Therefore, should the State adopt acceptable policies and
procedures prior to promulgation of a final rule by EPA, the Agency
would not include the regulatory provisions in the final rule.
1. Implementation Policy for Narrative Nutrient Criteria
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. EPA
noted at the time of the disapproval that Arizona had not shown that
its narrative criteria provided protection substantially equivalent to
that provided by numeric criteria related to nutrients that EPA had
adopted for various waters in Arizona. See, 40 CFR 131.31.
EPA is proposing section 131.31(e) to address this deficiency in
the State's standards and is soliciting comment regarding use of a
policy to guide the Region's implementation of Arizona's narrative
nutrient criteria set forth in ``EPA, Region 9, Policy for the
Implementation of Arizona's Narrative Nutrient Criteria.'' Region 9's
policy as set forth in that document is a general statement of policy,
intended to guide the Region's implementation of its activities related
to the narrative nutrient criteria, particularly the development of
permit conditions in Section 402 NPDES permits to ensure the narrative
criteria are met.
The document which EPA, Region 9, intends to use as its
implementation policy for the narrative nutrient criteria is available
for review and copying at Water Management Division, EPA, Region 9, 75
Hawthorne St., San Francisco, CA 94105. Copies of the document may be
obtained by contacting Gary Wolinsky at the address noted above. EPA,
Region 9, is seeking comment on the policy.
2. Implementation Policy for Narrative Toxicity Criterion
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. EPA, Region 9, believed that, without
procedures or a policy governing toxicity, the narrative criterion may
not fully protect Arizona's designated uses.
EPA is proposing section 131.31(e) to address this deficiency in
the State's standards and is soliciting comment regarding EPA's intent
to utilize a biomonitoring implementation policy for Arizona's
narrative criterion as it relates to chronic toxicity. The policy is
set forth in ``EPA, Region 9, Policy on Using Biomonitoring to
Implement Arizona's Narrative Toxicity Criterion''. Region 9's policy
as set forth in that document is not a rule, but a general statement of
policy to guide the Region's implementation of its activities related
to the narrative toxicity criterion, particularly the Section 402 NPDES
permit program and development of permit conditions to ensure the
narrative criterion is met.
The document which EPA, Region 9, intends to use as its
biomonitoring implementation policy for Arizona's narrative criterion
as it relates to chronic toxicity is available for review and copying
at Environmental Protection Agency, Region 9, Water Management
Division, 75 Hawthorne St., San Francisco, CA 94105. Copies of the
document may be obtained by contacting Gary Wolinsky at the address
noted above. EPA, Region 9, is seeking comment on the policy.
3. 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 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 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 have led to the development of an alternative program to
address the problem of mercury's impacts on endangered species. At
present, there is inadequate information regarding mercury's impacts on
wildlife in Arizona for EPA to develop a scientifically sound wildlife
criterion for this pollutant. For this reason, EPA, the State and FWS
worked to develop an alternative program for addressing potential
problems associated with the impacts of mercury on wildlife. EPA
intends the program will help ensure that existing protection for
wildlife contained in the State's narrative criterion for toxicity will
be properly implemented.
EPA is therefore proposing section 131.31(f) to address this
deficiency in the State's standards, and is soliciting comment upon
EPA's intent to implement a monitoring and source identification
program to ensure that the requirements of this provision are met. The
program is described in ``EPA, Region 9, Monitoring and Source
Identification Program for Mercury to Assess Attainment of Arizona's
Narrative Toxic Criterion.'' One of the program's objectives is to
assess the magnitude and extent of mercury bioaccumulation in the prey
base of the
[[Page 2770]]
bald eagle in Arizona. Under the program, EPA, ADEQ, the Arizona Game
and Fish Department, and FWS will conduct a tissue monitoring program
to evaluate the threat posed by mercury to bald eagles nesting along
watercourses in Arizona. A concurrent monitoring program of the
International Boundary Water Commission in the lower Colorado River
basin will assess the bioaccumulation of mercury in the prey base of
the brown pelican and the Yuma clapper rail. The program is not
designed to immediately develop a specific mercury water quality
criterion for the protection of wildlife. It instead is designed to
identify water bodies where the bioaccumulation of mercury may affect
endangered species, to guide the development of more extensive sampling
programs to identify and quantify the contribution of mercury sources
in watersheds where mercury is found to be bioaccumulating in aquatic
prey species, and to guide the development of controls for such sources
including, where appropriate, the adoption of site-specific water
quality criteria.
EPA believes that Arizona's narrative criterion for toxicity
contained in section R18-11-108.A, as supplemented by proposed section
131.31(f) and the program described above, are the most reasonable
approach at this time for protecting the designated uses, including use
of Arizona water by listed threatened and endangered wildlife species.
EPA is currently engaged in consultation with the FWS regarding this
approach. The Service has indicated its overall approval of this
approach to dealing with the problem of mercury as it relates to the
protection of wildlife. On January 17, 1996, the Service in a letter to
EPA, Region 9, revised its determination which initially identified
adoption of a mercury criteria as a reasonable and prudent alternative
for removing jeopardy to endangered species.
EPA will consider comment upon the program, for the purpose of
determining whether modifications to the program are warranted. The
program description is available for review and copying at Water
Management Division, EPA, Region 9, 75 Hawthorne St., San Francisco, CA
94105. Copies of the documents may be obtained by contacting Gary
Wolinsky at the address noted above.
C. 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 proposal would establish standards for waters
which are presently unprotected by State-adopted standards due to the
State's mining exclusion, would add the fish consumption use to various
waters which presently do not have the protection afforded by that
designation, and would remove the potential restriction on the
protectiveness of the standards presented by the PQLs in the standards
regulations. Today's action also provides protection for endangered and
threatened species by seeking comment designed to improve the policies
which EPA, Region 9, intends to use to guide its implementation of the
State's nutrient- and toxicity-related criteria.
EPA has initiated section 7 consultation under the Endangered
Species Act with the FWS regarding this rulemaking, and requested
concurrence from the FWS that this action is unlikely to adversely
affect threatened or endangered species. On January 17, 1996, the FWS
in a letter to EPA, Region 9 agreed that various elements of EPA's
proposal will improve the water quality standards program in Arizona
and are not likely to adversely affect listed species nor result in the
destruction or adverse modification of critical habitat.
D. 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 President's priorities, or the principles set forth in
the Executive Order.
Because the annualized cost of this proposed 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.
E. 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. In addition, EPA held a meeting on
December 14, 1995, in Phoenix, AZ, with members of the potentially
affected public including municipalities, industries and environmental
groups, to discuss the proposed action. EPA has scheduled a public
hearing on the proposed action for February 29, 1996.
F. 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 proposed rulemaking,
small entities are small dischargers, whether industrial or municipal.
The Agency concludes that this proposed rule would not have a
significant impact on a substantial number of small entities. This
proposed rule is limited to waters within Arizona and would not
substantially impact the terms and conditions that dischargers would
need to meet to comply with water quality standards. The requirements
affect monitoring requirements that most likely will be included in
future renewals of National Pollutant Discharge Elimination System
(NPDES) permits and in new NPDES permits. There may be treatment
process changes required in individual cases where the pollutant
specific monitoring requirements identify non-compliance. EPA expects
these process changes to be rare.
G. 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
[[Page 2771]]
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.
Under section 204 of the UMRA, EPA generally must develop a process
to permit elected officials of State, local and tribal governments (or
their designated employees with authority to act on their behalf) to
provide meaningful and timely input in the development of regulatory
proposals containing significant Federal intergovernmental mandates.
These consultation requirements build on those of Executive Order 12875
(``Enhancing the Intergovernmental Partnership'').
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 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.
EPA has 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.
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments.
F. Paperwork Reduction Act
This proposed action requires no information collection activities
subject to the Paperwork Reduction Act, and therefore no information
collection requirement (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. It should be noted that the
monitoring program required in proposed Section 131.31(f) is not
intended to impose additional reporting or recordkeeping burden on the
State.
List of Subjects in 40 CFR Part 131
Environmental protection, Water pollution control, Water quality
standards, Toxic pollutants.
Dated: January 23, 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 proposed to be 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), (c), (d),
(e), and (f) to read as follows:
Sec. 131.31 Arizona.
* * * * *
(b) A water of the United States to which State adopted standards
are not applicable by operation of R18-11-103.2 is subject to the water
quality standards of the water of the United States from which it is
impounded or, if not impounded from a water of the United States, the
water quality standards of the water of the United States to which it
is a tributary.
(c) 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:
COLORADO MAIN STEM RIVER BASIN: Hualapai Wash, Jacob Lake, Lonetree
Canyon Creek, Peeple's Canyon Creek, Red Canyon Creek, Sawmill Wash,
Warm Springs Creek
LITTLE COLORADO RIVER BASIN: Boot Lake, Camillo Tank, Chilson Tank, Cow
Lake, Crisis Lake (Snake Tank #2), Daves Tank, Deep Tank, Horse Lake,
Long Lake--upper, Mud Lake, Pine Tank, Potato Lake, Puerco River,
Quarter Circle Bar Tank, Rogers Reservoir, Sponseller Lake, Vail Lake,
Zuni River
MIDDLE GILA RIVER BASIN: Aqua Fria River (Camelback Road to Avondale
WWTP), Antelope Creek, Beehive Tank, Black Canyon Creek, Centennial
Wash Ponds, Galena Gulch, Gila River (Felix Road to the Salt River),
Gila River (Painted Rock Dam to the Colorado River), Hassayampa Lake,
Hit Tank, Lynx Creek, Painted Rock Lake, Perry Mesa Tank, Queen Creek
(Headwaters to the Superior WWTP), Queen Creek (Below Potts Canyon),
Turkey Creek
RED LAKE BASIN: Red Lake
RIO MAGDALENA BASIN: Holden Canyon Creek, Sycamore Canyon Creek
RIO YAQUI BASIN: Abbot Canyon, Blackwater Draw, Buck Canyon, Dixie
Canyon
Dry Canyon, Gadwell Canyon, Glance Creek, Gold Gulch, Johnson Canyon,
Mexican Canyon, Mule Gulch (Headwaters to Bisbee WWTP), Soto Canyon
SALT RIVER BASIN: Coon Creek, Gold Creek, Salt River (I-10 bridge to
the 23rd Avenue WWTP)
SAN PEDRO RIVER BASIN: Buehman Canyon Creek, Copper Creek, Garden
Canyon Creek, San Pedro River (Redington to the Gila River), Turkey
Creek
SANTA CRUZ RIVER BASIN: Agua Caliente Wash, Arivaca Creek, Bog Hole
Tank, Cienega Creek (Headwaters to I-10), Cienega Creek (Below Del Lago
dam), Davidson Canyon (I-10 to Cienega Creek), Empire Gulch (Below
Empire Ranch Spring), Gardner Canyon Creek, Harshaw Wash, Huachuca
Tank, Nogales Wash, Santa Cruz River (International Boundary to Nogales
WWTP), Soldier Lake, Sonoita Creek (Above the town of Patagonia),
Tanque Verde Creek, Tinaja Wash, Williams Ranch Tanks
UPPER GILA RIVER BASIN: Apache Creek, Bitter Creek, Chase Creek, Evans
Pond, Markham Creek, Pigeon Creek, San Simon River
VERDE RIVER BASIN: Aspen Creek, Barrata Tank, Bitter Creek (Headwaters
to the Jerome WWTP), Bitter Creek (Below 2.5 km downstream of the
Jerome WWTP), Fossil Springs, Foxboro Lake, Granite Creek, Horse Park
Tank, Meath Dam Tank, Willow Valley Lake
WILLCOX PLAYA: High Creek, Willcox Playa
(d) Appendix C (entitled ``Practical Quantitation Limits (PQLs)) of
Title 18, Chapter 11, Article 1, of Arizona Administrative Rules and
Regulations
[[Page 2772]]
shall not be applicable as a water quality standard for the purposes of
the CWA.
(e) To implement the requirements of R18-11-108.A.5 and R-18-11-
108.A.6 with respect to toxicity and nutrients, EPA shall identify
appropriate procedures and methods for interpreting and implementing
these requirements.
(f) 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. 96-1550 Filed 1-26-96; 8:45 am]
BILLING CODE 6560-50-P
