2766 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Proposed Rules

DATES: The hearing will be held on

Thursday, February 29, 1996, from 9:00

am to 5:00 pm. The extension for the

comment period will allow comments to

be received by EPA on or before

February 22, 1996.

In addition, pursuant to Section

307(d)(5), the public may submit

rebuttal and supplemental information

for thirty (30) days after the public

hearing. This comment period will end

on March 29, 1996.

ADDRESSES: The hearing will take place

at the Marriott Hotel, 1999 Jefferson

Davis Highway, in Arlington, Virginia

(accessed from the Crystal City Metro

stop). Comments should be submitted

(in duplicate if possible) to: Central

Docket Section, Environmental

Protection Agency, Attn: Air Docket No.

A–92–50, Washington, DC 20460.

Docket A–92–50 contains the

rulemaking record. The docket is

available for public inspection between

the hours of 8:00 a.m. and 5:30 p.m.,

Monday through Friday, in room M1500

of Waterside Mall, 401 M Street SW.,

Washington, DC, 20460. A reasonable

fee may be charged for copying. The fax

number is (202) 260–4400.

FOR FURTHER INFORMATION CONTACT:

Eleanor Thornton, Center for Federal

Guidance and Air Standards, Radiation

Protection Division, Office of Radiation

and Indoor Air (6602J), Environmental

Protection Agency, Washington, DC

20460, (202) 233–9773.

SUPPLEMENTARY INFORMATION: This

meeting is open to any member of the

public. As noted in the notice reopening

the comment period (60 FR 50161, No.

188, September 28, 1995), requests to

participate in the public hearing should

be made in writing to the Director,

Lawrence G. Weinstock, Radiation

Protection Division, Office of Radiation

and Indoor Air (6602J), Environmental

Protection Agency, 401 M Street SW.,

Washington, DC 20460, by February 15,

1996. Requests may also be faxed to

EPA at (202) 233–9629 or 233–9626.

Requests to participate in the public

hearing should also include an outline

of the topics to be addressed, the

amount of time requested, and the

names of the participants. EPA may also

allow testimony to be given at the

hearing without prior notice, subject to

time restraints and at the discretion of

the hearing officer. Three (3) copies of

testimony should be submitted at the

time of appearance at the hearings.

Dated: January 23, 1996.

Richard D. Wilson,

Acting Assistant Administrator for Air and

Radiation.

[FR Doc. 96–1557 Filed 1–26–96; 8:45 am]

BILLING CODE 6560–50–P

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.

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
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Proposed Rules 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–
2768 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Proposed Rules

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
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Proposed Rules 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
2770 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Proposed Rules

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
Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Proposed Rules 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 costeffective 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:

§ 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
2772 Federal Register / Vol. 61, No. 19 / Monday, January 29, 1996 / Proposed Rules

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

40 CFR Part 300

[FRL–5407–1]

National Oil and Hazardous

Substances Pollution Contingency

Plan; National Priorities List

AGENCY: Environmental Protection

Agency.

ACTION: Notice of Intent to Delete the

Folkertsma Refuse Site from the

National Priorities List; Request for

Comments.

SUMMARY: The United States

Environmental Protection Agency (US

EPA) Region V announces its intent to

delete the Folkertsma Refuse Site from

the National Priorities List (NPL) and

requests public comment on this action.

The NPL constitutes Appendix B of 40

CFR part 300 which is the National Oil

and Hazardous Substances Pollution

Contingency Plan (NCP), which US EPA

promulgated pursuant to Section 105 of

the Comprehensive Environmental

Response, Compensation, and Liability

Act of 1980 (CERCLA) as amended. This

action is being taken by US EPA,

because it has been determined that

Responsible Parties have implemented

all appropriate response actions

required. Moreover, US EPA and the

State have determined that remedial

activities conducted at the Site to date

have been protective of public health,

welfare, and the environment.

DATES: Comments concerning the

proposed deletion of this Site from the

NPL may be submitted on or before

February 28, 1996.

ADDRESSES: Comments may be mailed to

Gladys Beard, Associate Remedial

Project Manager, Office of Superfund,

U.S. EPA, Region V, 77 W. Jackson Blvd.

(HSR–6J), Chicago, IL 60604.

Comprehensive information on the site

is available at U.S. EPA’s Region V

office and at the local information

repository located at: Kent County

Public Library, 4293 Remembrance

N.W., Walker, Michigan, 49554.

Requests for copies of documents

should be directed formally to the

Region V Docket Office. The name,

address and phone number of the

Regional Docket Officer is Jan

Pfundheller, U.S. EPA, Region V, 77 W.

Jackson Blvd.(J–7J), Chicago, IL 60604,

(312) 353–5821.

FOR FURTHER INFORMATION CONTACT:

Karen Sikora, Remedial Project Manager

at (312) 886–1843, Gladys Beard,

Associate Remedial Project Manager at

(312) 886–7253, Office of Superfund,

U.S. EPA, Region V, 77 W. Jackson Blvd.

(HSR–6J), Chicago, IL 60604 or Denise

Gawlinski, Office of Public Affairs, U.S.

EPA, Region V, 77 W. Jackson Blvd.(P–

19J), Chicago, IL 60604, (312) 886–9859.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction

II. NPL Deletion Criteria

III. Deletion Procedures

IV. Basis for Intended Site Deletion

I. Introduction

The U.S. Environmental Protection

Agency (EPA) Region V announces its

intent to delete the Folkertsma Refuse

Site from the National Priorities List

(NPL), which constitutes Appendix B of

the National Oil and Hazardous

Substances Pollution Contingency Plan

(NCP), and requests comments on the

proposed deletion. The EPA identifies

sites that appear to present a significant

risk to public health, welfare or the

environment, and maintains the NPL as

the list of those sites. Sites on the NPL

may be the subject of remedial actions

financed by the Hazardous Substance

Superfund Response Trust Fund (Fund).

Pursuant to 40 CFR 300.425(e)(3) of the

NCP, any site deleted from the NPL

remains eligible for Fund-financed

remedial actions if the conditions at the

site warrant such action.

The U.S. EPA will accept comments

on this proposal for thirty (30) days after

publication of this notice in the Federal

Register.

Section II of this notice explains the

criteria for deleting sites from the NPL.

Section III discusses procedures that

U.S. EPA is using for this action.

Section IV discusses the history of this

site and explains how the site meets the

deletion criteria.

Deletion of sites from the NPL does

not itself create, alter, or revoke any

individual’s rights or obligations.

Furthermore, deletion from the NPL

does not in any way alter U.S. EPA’s

right to take enforcement actions, as

appropriate. The NPL is designed

primarily for informational purposes

and to assist in Agency management.

II. NPL Deletion Criteria

The NCP establishes the criteria the

Agency uses to delete sites from the

NPL. In accordance with 40 CFR

300.425(e), sites may be deleted from

the NPL where no further response is

appropriate. In making this

determination, U.S. EPA will consider,

in consultation with the State, whether

any of the following criteria have been

met:

(i) Responsible parties or other

persons have implemented all

appropriate response actions required;

or

(ii) All appropriate Fund-financed

responses under CERCLA have been

implemented, and no further response

action by responsible parties is

appropriate; or

(iii) The Remedial Investigation has

shown that the release poses no

significant threat to public health or the

environment and, therefore, remedial

measures are not appropriate.

III. Deletion Procedures

Upon determination that at least one

of the criteria described in the NCP 40

CFR 300.425(e) has been met, U.S. EPA

may formally begin deletion procedures

once the State has concurred. This

Federal Register notice, and a

concurrent notice in the local

newspaper in the vicinity of the Site,

announce the initiation of a 30-day

comment period. The public is asked to

comment on U.S. EPA’s intention to

delete the Site from the NPL. All critical

documents needed to evaluate U.S.

EPA’s decision are included in the

information repository and the deletion

docket.

Upon completion of the public

comment period, if necessary, the U.S.

EPA Regional Office will prepare a

Responsiveness Summary to evaluate

and address comments that were

received. The public is welcome to

contact Jan Pfundheller, Docket Officer

at the U.S. EPA Region V Office, 77 W.

Jackson Blvd. (J–7J), to obtain a copy of

this responsiveness summary, if one is

prepared. If U.S. EPA then determines

the deletion from the NPL is

appropriate, final notice of deletion will

be published in the Federal Register.

IV. Basis for Intended Site Deletion

The Folkertsma Refuse site is a former

industrial landfill located at 1426

Pannell Road NW., in Walker, Michigan.

The City of Walker, which borders the