Proposed Federal Water Quality Standards for Surface Waters of the United States in New Mexico

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 131

[OW-FRL-5091-8]

Proposed Federal Water Quality Standards for Surface Waters of

the United States in New Mexico

AGENCY: United States Environmental Protection Agency (USEPA).

ACTION: Proposed rulemaking.

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SUMMARY: The Environmental Protection Agency is proposing a federal

regulation that would supersede an EPA disapproved provision in New

Mexico's water quality standards to ensure that the State's water

quality standards are implemented in a manner that is consistent with

the requirements of the Clean Water Act and its implementing

regulations. EPA solicits written comments on this proposal.

DATES: Written comments on this proposal must be submitted on or before

the close of business on December 2, 1994. In addition, oral and/or

written comments may be submitted at a public hearing on November 22,

1994 at 7 p.m.

ADDRESSES: Written comments should be submitted to: Myron O. Knudson,

P.E., Director, Water Management Division, EPA Region 6, 1445 Ross

Avenue, Dallas, Texas 75202. The public hearing will be held at the

State Capitol Building, Old Santa Fe Trail and Paseo de Paralta, Santa

Fe, New Mexico.

FOR FURTHER INFORMATION CONTACT: Russell Nelson (6W-QT), EPA Region 6,

1445 Ross Avenue, Dallas, Texas 75202, Phone: (214) 665-6646.

SUPPLEMENTARY INFORMATION:

A. Legal Authority

Under section 303(c) (33 U.S.C. 1313(c)) of the Clean Water Act

(CWA), States are required to develop water quality standards for the

surface waters of the State. At a minimum, water quality standards

consist of beneficial use designations, numeric or narrative water

quality criteria that support those designated uses, and an

antidegradation policy that protects existing water quality. States are

required to review, and if appropriate, revise their water quality

standards at least once every three years. States are required to

submit the results of their review of water quality standards to EPA

for review and approval or disapproval.

Whenever a State reviews its water quality standards or revises or

adopts new standards, CWA section 303(c)(2)(B) requires States to adopt

numeric criteria for all CWA section 307(a) priority toxic pollutants

for which criteria guidance has been published under CWA section

304(a), the discharge or presence of which in the affected waters could

reasonably be expected to interfere with designated uses adopted by the

State. The criteria must be specific numerical limitations for priority

toxic pollutants. If numerical criteria are not available, the CWA

requires the State to adopt criteria based on biological assessment or

monitoring methods.

The State may, at its discretion, include policies affecting the

application and implementation of mixing zones, low flows and variances

(40 CFR 131.13). These discretionary policies are subject to EPA review

and approval and, therefore, must also be submitted to EPA pursuant to

40 CFR 131.6(f).

Section 303(c)(4) of the CWA (33 U.S.C. 1313(c)(4)) authorizes the

EPA Administrator 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 requirements of the CWA.

B. Background

1. Basis for Disapproval of the New Mexico Standards

In the National Toxics Rule (NTR) (see 57 FR 60848, December 22,

1992, codified at 40 CFR 131.36.), EPA promulgated numeric criteria for

priority toxic pollutants for those 14 States that had failed to adopt

such criteria on their own as required by CWA section 303(c)(2)(B). At

the time of proposal of the NTR, New Mexico was determined to be in

compliance with the toxics provisions of the CWA. However, on October

8, 1991, New Mexico adopted revisions to its water quality standards

that affected its compliance status.

In accordance with the provisions of section 303(c) of the Act and

the Federal Water Quality Standards Regulation (40 CFR 131), Part 1-

105.E.4 of the New Mexico water quality standards was disapproved on

January 13, 1992. This regulatory section was determined to be

inconsistent with requirements set forth under section 303(c)(2)(B) of

the Act. In the NTR, EPA noted it's disapproval action for New Mexico,

and the potential for a separate rulemaking if the State did not adopt

acceptable water quality standards (57 FR 60848 @ page 60856, Note (2)

to Table 1).

Following disapproval of the New Mexico standards, EPA and State

staff discussed the modifications that were required to bring New

Mexico into compliance with section 303(c)(2)(B) of the CWA. It was

EPA's judgment that the New Mexico Environment Department was

attempting to appropriately revise its water quality standards through

the State's administrative procedures which includes final adoption by

the New Mexico Water Quality Control Commission (WQCC). As a result of

that effort, EPA allowed adequate time for the State to make

appropriate modifications to its water quality standards. With its

January 12, 1993 letter, EPA outlined the specific actions necessary

for New Mexico to take in order to revise the deficiency in its water

quality standards.

2. New Mexico's Response

In a February 25, 1993 letter to EPA, New Mexico committed to

correcting the deficiency in its standards by removing the disapproved

language. The State formally proposed deletion of the disapproved

language from its water quality standards and held hearings on its

proposal on October 13-15, 1993, and on January 12, 1994. To date,

however, the State has not taken final action on the proposal and has

thus failed to correct the disapproved standards.

3. Why New Mexico's Water Quality Standards Are Inadequate

The Water Quality Standards Regulation allows for application and

implementation of general discretionary policies in State water quality

standards, including provisions for mixing zones (40 CFR 131.13).

Section 1-105.E.4 of the New Mexico standards provides a specific

limitation for a general mixing zone policy that requires mixing zones

to be free from substances in concentrations that are acutely toxic to

aquatic organisms. The current State provision also allows a ``no-acute

toxicity'' provision to be determined by the performance of

biomonitoring procedures or by demonstration of compliance with acute

numeric water quality criteria. Determining compliance in this manner

essentially allows acute numerical criteria to be superseded by

biomonitoring.

For EPA to approve New Mexico's mixing zone policy, the policy must

protect against acute toxicity. Therefore, the policy must ensure that

the numeric criteria adopted pursuant to section 303(c)(2)(B) of the

CWA are not exceeded in the mixing zone. Biomonitoring cannot supersede

the State's acute numeric criteria for cadmium, chlordane, chromium,

copper, cyanide, lead, mercury, nickel, selenium, silver, and zinc.

EPA's Water Quality Standards Regulation provides that in

establishing criteria for toxic pollutants, States ``should * * *

establish narrative criteria or criteria based upon biomonitoring

methods where numerical criteria cannot be established or to supplement

numerical criteria,'' (40 CFR 131.11.(b)(2)). Clearly, narrative

criteria and criteria based on biomonitoring are to supplement

numerical criteria, not supersede them. Section 1-105.E.4 then, does

not comply with this requirement, thus resulting in this provision

being disapproved by EPA.

C. Description of the Proposed Rule

Today's proposed rule would supersede Section 1-105.E.4. of the New

Mexico water quality standards, and would establish a Federal

regulation which will ensure the application of acute numeric criteria.

The proposed rule would not allow the use of biomonitoring provisions

in lieu of, or as a surrogate for, chemical specific limits for

pollutants for which the State has numeric criteria in determining and

preventing acutely toxic conditions within mixing zones.

The proposed rule would maintain the State's narrative criteria

requiring that mixing zones be free of substances in concentrations

that are acutely toxic to aquatic organisms. Implementation of this

proposed rule will be determined by performance of the biomonitoring

procedures set out in section 1-103.D, and by demonstration of

compliance with acute numeric criteria set out in section 3-101.J and

applicable un-ionized ammonia and total chlorine residual standards in

sections 3-101.A, 3-101.C, 3-101.E, 3-101.F, and 3-101.H of the New

Mexico water quality standards.

These provisions provide for application of the State's numeric

criteria at the appropriate locations within the mixing zone, or

otherwise apply throughout the waterbody at the end of any discharge

pipe, canal or other discharge point.

D. 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 assure the application of numeric

criteria, narrative criteria, and biomonitoring, and would result in

the protection of aquatic life from specific pollutants that could

reasonably be expected to interfere with the health and survival of the

most sensitive species, including threatened and endangered aquatic

species. In addition, this proposed rule would allow more protection

for endangered and threatened species in that both biomonitoring and

criteria requirements for waterbodies are necessary.

EPA has requested and received concurrence from the United States

Fish and Wildlife Service that this proposed rule is unlikely to

adversely affect threatened or endangered species.

E. 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 is not a ``significant regulatory action'' under the terms of

Executive Order 12866, and is therefore not subject to OMB review.

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

significant impact on a substantial number of small entities. This

proposed rule is specific to New Mexico, and therefore limited in

scope. This proposed rule would not establish any new substantive

ambient water quality criteria that dischargers would need to meet. 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 to be rare.

G. Paperwork Reduction Act

This proposed rule places no information collection activities on

the State of New Mexico, 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.

H. Availability of the Record

The entire administrative record concerning the New Mexico Water

Quality Standards discussed in this preamble is available for public

inspection and copying at the EPA, Region 6 Office, Library Services,

1445 Ross Avenue, Dallas, Texas 75202, on weekdays during the Agency's

normal business hours of 8 a.m. to 4:30 p.m.

List of Subjects in 40 CFR Part 131

Water pollution control, Water quality standards, Toxic pollutants.

Dated: October 11, 1994.

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 131.38 is added to subpart D to read as follows:

Sec. 131.38 New Mexico.

The following provision is intended to supersede Section 1-105.E.4.

of the ``Water Quality Standards for Interstate and Intrastate Streams

in New Mexico,'' adopted by the Water Quality Control Commission under

authority of Paragraph C, Section 74-6-4 of the New Mexico Water

Quality Act (NMSA 1978):

(a) Mixing zones shall be free of substances in concentrations

which are acutely toxic to aquatic organisms passing through the zone

of mixing. Compliance with this provision shall be determined by:

(1) Performance of the biomonitoring procedures set out in Section

1-103.D; and

(2) By demonstration of compliance with acute standards set out in

Section 3-101.J, and applicable un-ionized ammonia and total chlorine

residual standards set out in Sections 3-101.A, 3-101.C, 3-101.E, 3-

101.F, and 3-101.H.

(b) (Reserved)

[FR Doc. 94-25746 Filed 10-17-94; 8:45 am]

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