0001
1
2
3
4
5
6
7
ENVIRONMENTAL
PROTECTION
AGENCY
8
PUBLIC
HEARING
9
DECEMBER
12,
2002,
2:
00
TO
5:
00
PM
10
11
HELD
AT
THE
SHERATON
BIRMINGHAM
12
2101
RICHARD
ARRINGTON,
JR.
BLVD.
NORTH
13
BIRMINGHAM,
ALABAMA
35203
14
15
16
17
18
TRANSCRIPT
PREPARED
BY
19
MANDY
BRYANT,
COURT
REPORTER
20
FOSHEE
&
TURNER
21
1933
RICHARD
ARRINGTON,
JR.,
BLVD.
SOUTH
22
BIRMINGHAM,
ALABAMA
35209
23
0002
1
MR.
MCGILL:
Good
afternoon
2
ladies
and
gentlemen.
I
am
Thomas
3
McGill
and
I
am
Chief
of
the
West
4
Standards,
Monitoring
and
TMDL
Section
5
of
the
Water
Management
Division
of
the
6
Environmental
Protection
Agency
(
or
EPA)
7
Region
4
Office
in
Atlanta,
Georgia.
8
This
hearing
is
being
held
to
9
receive
public
comments
on
proposed
10
water
quality
standards
for
the
segment
11
of
Five
Mile
Creek
in
Jefferson
County
12
from
Newfound
Creek
to
Ketona.
EPA
13
proposed
the
water
quality
standards
for
14
this
stream
segment
in
the
Federal
15
Register
on
October
23,
2002.
The
16
information
from
this
hearing
will
be
17
used
by
EPA
to
assess
the
attainability
18
of
aquatic
uses
for
this
stream
and
to
19
determine
if
the
proposed
federal
use
20
designation
is
appropriate
for
this
21
water
body.
22
Background
information
on
EPA's
23
proposed
action
is
included
in
a
Fact
0003
1
Sheet
which
is
available
at
the
2
registration
table.
Also,
a
copy
of
the
3
October
23,
2002
Federal
Register,
which
4
contains
the
text
of
EPA's
proposed
rule
5
and
the
supporting
preamble
to
the
6
proposal,
is
available
at
the
7
registration
table.
8
If
you
have
not
filled
out
a
9
registration
form,
please
do
so,
as
that
10
is
how
I
will
know
you
would
like
to
11
speak.
This
hearing
will
be
held
in
two
12
sessions:
from
2:
00
until
5:
00
this
13
afternoon,
and
from
7:
00
until
9:
00
this
14
evening.
15
If
you
are
planning
to
speak
16
today,
please
specify
on
the
17
registration
form
if
you
are
only
18
available
for
one
of
the
sessions,
or
19
for
a
limited
time
during
one
of
the
20
sessions.
We
will
try
to
make
sure
that
21
you
are
called
to
speak
during
those
22
times.
23
After
I
have
explained
the
0004
1
ground
rules
for
the
hearing
and
a
few
2
details
about
how
EPA
will
use
the
3
information
gathered
today,
I
will
begin
4
to
call
the
names
of
those
people
who
5
have
expressed
an
interest
in
making
6
comments
during
the
hearing.
7
This
hearing
was
announced
on
8
October
28,
2002,
in
the
Birmingham
9
News.
A
notice
of
this
hearing
was
also
10
announced
in
the
Federal
Register,
11
Volume
67,
Number
205,
on
October
23,
12
2002.
These
notices
stated
that
EPA
is
13
requesting
that
written
information
and
14
other
data
be
submitted
to
EPA
by
15
December
23,
2002.
These
written
16
comments
should
be
directed
to
Mr.
Fritz
17
Wagener
at
EPA
Region
4,
Atlanta
Federal
18
Center,
Water
Management
Division,
61
19
Forsyth
Street
Southwest,
Atlanta,
20
Georgia,
30303.
This
address
is
also
21
listed
on
the
Fact
Sheet
available
at
22
the
registration
desk.
The
Federal
23
Register
notice
also
describes
other
0005
1
ways
that
comments
may
be
submitted
to
2
EPA,
including
comments
submitted
by
3
E­
mail,
by
hand
delivery
or
courier,
and
4
by
commenting
through
EPA's
Internet
5
site
at
www.
epa.
gov/
edocket.
The
6
Federal
Register
Notice
also
contains
7
instructions
on
how
to
review
EPA's
8
official
public
docket
for
this
9
proposal.
The
docket
can
either
be
10
reviewed
at
EPA's
Region
4
Office
in
11
Atlanta,
or
on
EPA's
internet
site.
I
12
encourage
you
to
read
the
Federal
13
Register
notice
for
a
full
explanation
14
of
how
to
view
the
docket
on­
line.
15
Although
the
proceedings
of
this
16
hearing
are
being
recorded
and
a
17
transcript
will
be
included
in
the
18
administrative
record,
I
also
ask
that
19
you
leave
a
copy
of
your
comments
if
you
20
have
prepared
a
printed
version.
21
I
ask
that
you
keep
your
22
presentations
on
the
topic
that
is
the
23
subject
on
this
hearing,
which
is
0006
1
information
that
relates
to
the
2
appropriate
and
attainable
aquatic
uses
3
and
water
quality
for
Five
Mile
Creek.
4
I
may
interrupt
and
cut
short,
if
5
necessary,
any
oral
presentation
6
exceeding
this
limit
or
outside
the
7
scope
of
this
hearing.
There
may
be
8
times
that
I,
or
other
EPA
9
representatives
with
me
today,
may
ask
10
questions
of
those
of
you
making
11
comments
to
EPA
where
it
is
necessary
to
12
clarify
the
nature
or
substance
of
the
13
comments.
14
Section
303(
c)
of
the
Clean
15
Water
Act
directs
states
with
oversight
16
by
EPA
to
adopt
water
quality
standards
17
to
protect
public
health
and
welfare,
18
enhance
the
quality
of
water
and
serve
19
the
purposes
of
the
Act.
Under
Section
20
303,
States
have
the
primary
21
responsibility
to
establish
water
22
quality
standards,
which
are
defined
as
23
designated
uses,
or
use
goals,
of
a
0007
1
water
segment,
the
water
quality
2
criteria
to
support
those
uses,
and
an
3
antidegradation
policy
applicable
to
all
4
state
waters.
The
Act
specifies
the
5
minimum
beneficial
uses
to
be
considered
6
by
states
in
establishing
water
quality
7
standards
as
public
water
supplies,
8
propagation
of
fish
and
wildlife,
9
recreation,
agricultural
uses,
10
industrial
uses
and
navigation.
11
Section
101(
a)(
2)
of
the
Clean
12
Water
Act
states,"...
it
is
the
national
13
goal
that
wherever
attainable,
an
14
interim
goal
of
water
quality
which
15
provides
for
the
protection
and
16
propagation
of
fish,
shellfish,
and
17
wildlife
and
provides
for
recreation
in
18
and
on
the
water..."
The
term
for
these
19
uses
has
been
shortened
to
the
20
"
fishable/
swimmable
uses."
21
Section
303
also
includes
a
22
requirement
that
states
review
their
23
standards
at
least
once
every
three
0008
1
years
during
a
process
that
includes
2
public
participation
and
EPA
review
of
3
the
state­
adopted
standards.
Under
4
Section
303(
c),
EPA
is
required
to
5
either
approve
new
or
revised
state
6
standards
that
meet
the
requirements
of
7
the
Act,
or
disapprove
standards
that
8
fail
to
meet
those
requirements.
Where
9
EPA
takes
an
action
to
disapprove
a
10
state
standard,
Section
303(
c)(
4)(
A)
of
11
the
Act
states
that
EPA
is
to
promptly
12
propose
substitute
federal
standards
and
13
promulgate
federal
standards
within
90
14
days
thereafter.
15
The
implementing
regulations
for
16
the
federal
water
quality
standards
17
program
are
found
at
40
CFR
Part
131.
18
These
regulations
interpret
and
19
implement
these
portions
of
the
Clean
20
Water
Act
by
requiring
that
water
21
quality
standards
provide
for
fishable/
22
swimmable
uses
unless
those
uses
have
23
been
shown
to
be
unattainable.
This
0009
1
effectively
creates
the
presumption
of
2
attainability
of
fishable/
swimmable
3
uses.
The
mechanism
in
EPA's
4
regulations
used
to
overcome
this
5
presumption
is
a
use
attainability
6
analysis.
7
A
use
attainability
analysis
is
8
defined
in
40
CFR
Section
131.3(
g)
as
a
9
"
structured
scientific
assessment
of
the
10
factors
affecting
the
attainment
of
a
11
use
which
may
include
physical,
12
chemical,
biological,
and
economic
13
factors
as
described
in
Section
14
131.10(
g)."
A
use
attainability
15
analysis
is
designed
to
answer
the
16
following
questions:
17
(
1)
What
are
the
aquatic
uses
currently
18
being
achieved
in
the
water
body?
19
(
2)
What
are
the
causes
of
any
20
impairment
of
the
aquatic
uses?
and
21
(
3)
What
are
the
aquatic
uses
that
can
22
be
attained
based
on
the
physical,
23
chemical,
and
biological
characteristics
0010
1
of
the
water
body?
2
Under
40
CFR
Section
131.10(
j),
3
states
are
required
to
conduct
a
use
4
attainability
analysis
whenever
a
state
5
designates
uses
that
do
not
include
the
6
uses
specified
in
Section
101(
a)(
2)
of
7
the
Act,
in
other
words,
8
"
fishable/
swimmable"
uses,
or
when
a
9
state
wishes
to
remove
a
designated
use
10
that
is
specified
in
Section
101(
a)(
2)
11
of
the
Act,
or
when
a
state
adopts
12
subcategories
of
uses
that
require
less
13
stringent
criteria.
14
Under
40
CFR
Section
131.10(
k),
15
"
A
State
is
not
required
to
conduct
a
16
use
attainability
analysis
under
this
17
Regulation
whenever
designating
uses
18
which
include
those
specified
in
Section
19
101(
a)(
2)
of
the
Act."
20
On
October
14,
1986,
the
21
Regional
Administrator
for
Region
4
22
disapproved
use
designations
adopted
by
23
the
State
of
Alabama
for
49
stream
0011
1
segments
because
the
State
failed
to
2
justify
lower
use
classifications
in
3
accordance
with
40
CFR
Section
4
131.10(
j).
Although
the
State
had
5
previously
submitted
use
attainability
6
analysis
for
these
stream
segments,
the
7
analysis
did
not
adequately
describe
the
8
basis
for
the
lower
use
classifications
9
nor
did
they
provide
adequate
10
information
to
determine
if
such
11
classifications
were
appropriate.
From
12
1986
to
1991,
19
of
the
aquatic
use
13
designations
were
either
upgraded
by
the
14
state
of
Alabama
to
the
fish
and
15
Wildlife
use
classification
or
approved
16
by
EPA
for
the
Agricultural
and
17
Industrial
Water
Supply
use
designation
18
based
on
a
demonstration
that
Fish
and
19
Wildlife
uses
were
not
attainable.
In
20
the
context
of
the
Clean
Water
Act,
the
21
Fish
and
Wildlife
use
classification
22
includes
the
Section
101(
a)(
2)
fishable/
23
swimmable
uses.
The
State's
0012
1
Agricultural
and
Industrial
Water
Supply
2
use
designation
does
not
include
the
3
full
complement
of
fishable/
swimmable
4
uses,
as
the
aquatic
life
protection
use
5
for
this
classification
includes
only
6
fish
survival.
7
On
July
18,
1991,
the
EPA
8
Regional
Administrator
for
Region
4
9
disapproved
30
beneficial
use
10
designations
adopted
by
the
State,
29
of
11
which
were
previously
disapproved
by
EPA
12
in
1986.
Five
of
these
30
segments
were
13
upgraded
to
the
Fish
and
Wildlife
use
14
designation
by
the
state
between
1991
15
and
1996.
16
Between
July
18,
1991
and
17
today's
proposal,
the
Alabama
Department
18
of
Environmental
Management
(
or
ADEM)
19
reclassified
the
use
designations
of
17
20
of
these
30
segments
to
the
Fish
and
21
Wildlife
use
designation.
On
August
1,
22
2000,
ADEM
incorporated
a
new
use
23
classification
of
Limited
Warmwater
0013
1
Fishery
as
a
provision
of
the
State
2
water
quality
regulations
at
3
335­
6­
10­.
09(
6)
and
ADEM
has
since
4
reclassified
10
of
these
30
stream
5
segments
to
the
Limited
Warmwater
6
Fishery
use
designation.
In
addition,
7
EPA
approved
ADEM's
Agricultural
and
8
Industrial
Water
Supply
use
designation
9
for
two
of
these
30
segments.
Although
10
ADEM
reclassified
a
segment
of
Five
Mile
11
Creek
from
Newfound
Creek
to
Ketona
to
12
Fish
and
Wildlife
in
April
1997,
the
13
state
has
not
completed
actions
to
14
reclassify
the
segment
of
Five
Mile
15
Creek
from
Newfound
Creek
to
Ketona
to
16
Fish
and
Wildlife
or
completed
a
use
17
attainability
analysis
for
this
segment
18
to
show
that
the
Fish
and
Wildlife
use
19
is
not
attainable.
The
Five
Mile
Creek
20
segment
from
Locust
Fork
to
Ketona
is
21
the
only
remaining
segment
of
the
30
22
segments
disapproved
by
EPA
on
July
18,
23
1991,
that
does
not
now
have
an
approved
0014
1
use
designation.
2
As
I
stated
previously,
Section
3
303(
c)
of
the
Clean
Water
Act
authorizes
4
the
EPA
Administrator
to
promulgate
5
water
quality
standards
to
supersede
6
State
standards
that
have
been
7
disapproved,
or
in
any
case
where
the
8
Administrator
determines
that
a
new
or
9
revised
standard
is
necessary
to
meet
10
the
requirements
of
the
Act.
It
is
11
these
Section
303(
c)
authorities
that
12
EPA
used
in
releasing
the
proposed
13
standards
which
are
the
subject
of
14
today's
hearing.
15
Prior
to
EPA's
proposal
of
this
16
rule,
EPA
reviewed
all
available
17
relevant
physical,
chemical,
biological,
18
and
economic
information
for
Five
Mile
19
Creek.
EPA
applied
a
presumption
that
20
the
State's
Fish
and
Wildlife
uses
were
21
attainable
unless
it
could
be
22
affirmatively
demonstrated
that
these
23
uses
were
not
attainable.
However,
EPA
0015
1
believes
that
the
available
data
does
2
not
refute
the
conclusion
that
the
Fish
3
and
Wildlife
uses
are
attainable.
4
The
citation
for
the
proposed
5
standards
is
40
CFR
Section
131.34.
6
Subsection
(
a),
entitled
"
Use
7
designations
for
surface
waters,"
is
8
proposed
as
a
listing
of
the
use
9
classification
for
the
segment
of
Five
10
Mile
Creek
from
Newfound
Creek
to
11
Ketona.
Subsection
(
b),
entitled
"
Water
12
quality
standards
variances,"
is
13
proposed
as
a
procedure
for
granting
14
variances
to
the
federal
rule.
15
Inclusion
of
this
procedure
acknowledges
16
that
a
variance
to
the
provisions
of
a
17
final
federal
rule
can
only
be
granted
18
by
EPA
and
establishes
the
Regional
19
Administrator
of
EPA
Region
4
as
the
20
authorized
representative
of
EPA
with
21
that
authority.
A
variance
to
the
22
proposed
rule
could
be
granted
only
if
23
requirements
equivalent
to
those
listed
0016
1
in
the
40
CFR
Section
131.10(
g)
have
2
been
met,
and
the
variance
would
not
3
result
in
the
situation
where
the
4
continued
existence
of
any
threatened
or
5
endangered
species
listed
under
Section
6
4
of
the
Endangered
Species
Act
would
be
7
jeopardized
or
such
species'
critical
8
habitat
would
be
adversely
modified.
9
It
is
important
to
recognize
10
that
the
inclusion
of
a
variance
11
mechanism
in
the
proposed
rule
will
12
establish
an
additional
level
of
13
flexibility
that
may
be
currently
14
allowed
under
the
current
State­
adopted
15
surface
water
use
classifications.
16
Also,
a
variance
would
apply
only
to
one
17
water
quality
parameter,
while
all
other
18
criteria
for
the
Fish
and
Wildlife
use
19
classification
remain
in
effect.
This
20
allows
a
higher
level
of
protection
than
21
the
alternate
option
which
assigns
a
22
lower
use
classification,
such
as
23
Limited
Warmwater
Fishery
or
0017
1
Agricultural
and
Industrial
Water
2
Supply,
as
these
use
classifications
3
include
less
protective
criteria
based
4
of
the
protection
of
other
uses
or
5
protect
for
Fish
and
Wildlife
uses
only
6
during
certain
parts
of
the
year.
7
EPA
also
encourages
comments
on
8
the
variance
mechanism
included
in
the
9
October
23,
2002
proposal,
as
we
10
consider
it
to
be
an
important
part
of
11
implementation
of
EPA's
guidance
for
12
assignment
of
designated
uses
and
13
protection
of
water
quality.
14
After
December
23,
2002,
which
15
is
the
end
of
the
public
comment
period,
16
EPA
will
review
all
information
17
available
to
the
agency
on
this
stream
18
segment.
Based
on
the
information
19
available
at
that
time,
EPA
will
20
determine
if
revisions
to
the
proposed
21
rule
are
warranted.
In
developing
the
22
proposed
standards
for
Five
Mile
Creek,
23
EPA
used
the
procedures
set
out
for
0018
1
States
in
the
40
CFR
Part
131,
and
EPA's
2
implementing
policies,
procedures,
and
3
guidance.
4
I
would
now
like
to
introduce
5
the
hearing
panel.
On
my
left
is
6
Claudia
Fabiano
of
the
Office
of
Water
7
in
EPA's
Headquarters
Office
in
8
Washington,
D.
C.
Also
to
my
left
is
9
Craig
Higgason,
Associate
Regional
10
Counsel
of
EPA
Region
4
Office
of
11
Regional
Counsel.
Also
on
the
panel
is
12
Fritz
Wagener,
Water
Quality
Standards
13
Coordinator
for
EPA's
Region
4
Atlanta
14
Office.
15
Given
that
as
a
general
16
description
of
the
need
and
purposes
for
17
this
hearing,
I
will
now
call
the
first
18
speaker.
As
we
proceed
with
the
19
hearing,
I
would
like
to
ask
each
person
20
making
a
statement
to
step
to
the
21
microphone,
state
his
or
her
name,
22
spelling
it
if
necessary,
and
state
your
23
interest
or
organization
represented.
0019
1
Our
first
speaker
will
be
Mr.
2
James
McIndoe,
Director
of
the
Water
3
Division
of
the
Alabama
Department
of
4
Environmental
Management.
After
Mr.
5
McIndoe
we
will
hear
from
any
elected
6
officials
who
have
requested
to
speak
at
7
the
hearing.
8
We
have
numbered
the
9
registration
cards
in
the
order
that
10
they
were
turned
in,
so
after
the
11
elected
officials,
I
will
call
others
12
who
have
expressed
an
interest
to
speak.
13
MR.
MCINDOE:
Good
afternoon.
I
14
am
James
McIndoe,
Chief
of
the
Water
15
Division,
Alabama
Department
of
16
Environmental
Management,
and
I
would
17
like
to
make
a
brief
statement
on
behalf
18
of
the
department.
19
U.
S.
Environmental
Protection
20
Agency
is
proposing
to
promulgate
the
21
Fish
and
Wildlife
water
use
22
classification
for
the
segment
of
Five
23
Mile
Creek
extending
from
Newfound
Creek
0020
1
upstream
to
Ketona.
Current
2
classification
for
this
segment
is
3
Agricultural
and
Industrial
Water
4
Supply.
When
ADEM
considered
a
similar
5
upgraded
classification
earlier
this
6
year
Sloss
Industries
Corporation
7
submitted
comments
questioning
the
8
appropriateness
of
that
action.
We
9
understand
that
Sloss
Industries
now
10
supports
the
classification
of
Five
Mile
11
Creek
as
Fish
and
Wildlife,
will
express
12
that
support
during
this
hearing,
and
13
will
recommend
that
ADEM
undertake
the
14
reclassification
through
the
state
15
rule­
making
process.
16
ADEM
believes
the
state
17
administrative
framework
is
the
18
appropriate
forum
for
water
use
19
classification
actions
and
has
begun
the
20
rule­
making
process
to
upgrade
Five
Mile
21
Creek
to
Fish
and
Wildlife.
In
light
of
22
these
developments
it
would
appear
that
23
further
EPA
action
will
not
be
0021
1
necessary.
2
We
appreciate
the
opportunity
to
3
provide
our
comments.
Thank
you.
4
MR.
MCGILL:
Our
next
speaker
5
will
be
Jim
Henry
of
Sloss
Industries
6
Corporation.
7
MR.
HENRY:
Thank
you.
My
name
8
is
Jim
Henry,
and
I'm
the
Manager
of
9
Technical
Services
for
Sloss
Industries
10
Corporation.
My
duties
include
the
11
administration
of
the
Environmental
12
Compliance
Program
at
Sloss.
13
I'm
here
today
on
behalf
of
14
Sloss
Industries
to
make
the
following
15
comments
for
the
record:
Approximately
16
one
year
ago
the
state
of
Alabama,
17
through
its
Department
of
Environment
18
Management,
proposed
to
upgrade
Five
19
Mile
Creek
to
the
Fish
and
Wildlife
20
classification.
At
that
time,
although
21
Sloss
Industries
was
not
opposed
to
the
22
upgrade
to
Fish
and
Wildlife,
Sloss
did
23
not
believe
there
was
sufficient
0022
1
technical
data
included
or
being
relied
2
upon
to
support
the
recommendation.
In
3
addition,
Sloss
was
concerned
about
the
4
economic
impact
of
such
an
upgrade
and
5
what
that
upgrade
might
have
on
the
6
company,
its
employees,
and
the
7
surrounding
community.
8
Now
the
federal
government,
9
through
the
Environmental
Protection
10
Agency,
has
proposed
to
upgrade
Five
11
Mile
Creek.
In
the
last
year
Sloss
has
12
evaluated
additional
information,
both
13
technical
and
economic,
and
now
fully
14
supports
the
designation
of
Five
Mile
15
Creek
as
a
Fish
and
Wildlife
waterway.
16
We
recognize
the
importance
of
such
a
17
designation
and
its
long­
term
positive
18
environmental
benefit
to
Five
Mile
19
Creek.
In
the
preamble
to
the
proposed
20
rule
EPA
indicates
that
if
Alabama
was
21
to
upgrade
Five
Mile
Creek
to
Fish
and
22
Wildlife
that
it
would
not
be
necessary
23
for
EPA
to
propose
the
upgrade
and
make
0023
1
the
proposed
upgrade
final.
Sloss
has
2
communicated
its
position
to
the
Alabama
3
Department
of
Environmental
Management
4
and
fully
supports
the
return
of
5
regulatory
oversight
for
Five
Mile
6
Creek's
classification
as
Fish
and
7
Wildlife
to
Alabama,
and
Sloss
has
urged
8
ADEM
to
repromulgate
Five
Mile
Creek
to
9
the
Fish
and
Wildlife
classification
10
which
Sloss
fully
supports.
Therefore
11
Sloss
stands
ready
to
work
cooperatively
12
with
EPA
and
ADEM
to
help
achieve
and
13
maintain
Fish
and
Wildlife
status
for
14
Five
Mile
Creek
through
the
state
15
classification.
Sloss
recommends
16
therefore
that
the
designation
of
Five
17
Mile
Creek
as
Fish
and
Wildlife
be
18
returned
to
the
state
rule­
making
19
process
and
that
EPA
withdraw
this
20
proposed
rule.
21
Thank
you.
22
MR.
MCGILL:
Our
next
speaker
is
23
Chris
Sorenson
of
the
Five
Mile
Action
0024
1
Committee
Incorporated.
2
MR.
SORENSON:
Good
afternoon
3
members
of
the
staff.
I'm
Chris
4
Sorenson.
I'm
president
of
the
Five
5
Mile
Action
Committee
here
in
Jefferson
6
County.
We're
primarily
a
watershed
7
monitoring
group
that
has
been
8
monitoring
Five
Mile
Creek
for
some
ten
9
years
now.
We
fully
support
your
10
efforts
here
today
to
have
the
stream
11
reclassified
to
Fish
and
Wildlife.
I
12
think
it's
only
appropriate
that
the
13
state
has
had
30
years
under
the
Clean
14
Water
Act
to
continue
and
promulgate
15
these
rules
and
has
failed
to
do
so
at
16
this
point,
so
we
ask
that
you
continue
17
on
with
this
process.
We
feel
that
it's
18
the
only
way
that
we
can
ever
have
our
19
stream
classified
appropriately.
20
Let
me
say
that
I
also
21
appreciate
the
fact
we
are
now
22
considering
this
segment
of
the
stream
23
in
a
memo
from
Tracy
Mahan
of
the
EPA's
0025
1
Regional
Water,
or
administrative
2
assistant.
There
is
a
new
attempt
to
3
bring
about
total
watershed
management.
4
I
think
this
is
one
of
the
things
that
5
we
have
failed
to
have
here
in
Alabama
6
is
a
total
watershed
management
approach
7
as
exhibited
by
the
segment
that
is
8
still
classified
as
Agricultural
and
9
Industrial
while
being
located
between
10
two
Fish
and
Wildlife
segments.
11
Historically
Five
Mile
Creek
12
upstream
of
the
ENI
segment
has
served
13
as
a
water
supply
for
the
city
of
14
Birmingham.
As
a
matter
of
fact
the
15
city
of
Birmingham
or
the
Birmingham
16
Waterworks
Board
is
just
recently
17
announced
a,
donated
portions
of
that
18
land
as
a
green
lake,
so
that's
19
something
that
shows
that
the
water
20
quality
upstream
of
these
discharge
21
points
is
in
fact
capable
of
meeting
22
Fish
and
Wildlife.
23
As
you
continue
downstream
to
0026
1
the
confluence
of
Newfound
Creek
it
once
2
again
turns
into
Fish
and
Wildlife
and
3
this
is
at
the
point
of
the
entry
of
a
4
stream
which
is
classified
on
a
303
D
5
list,
which
means
that
it
fails
to
meet
6
the
water
quality
requirements
of
the
7
state
and
of
the
federal
government.
So
8
we
have
a
stream
that
is
Agricultural
9
and
Industrial
being
joined
by
a
303
B
10
stream
which
is
then
classified
to
Fish
11
and
Wildlife
which
makes
no
sense.
The
12
segment
that's
upstream
should
also
be
13
classified
Fish
and
Wildlife.
14
We
will
be
submitting
15
information
through
the
E­
docket
that
16
supports
our
stance
on
this,
information
17
from
the
U.
S.
Geological
Survey,
18
information
collected
under
the
Alabama
19
Water
Watch
Program,
and
other
20
government
agencies
supports
the
21
classification
as
Fish
and
Wildlife.
It
22
is
not
a
seasonal
support
of
that.
It
23
is
year­
around
support
for
0027
1
classification,
so
we
don't
feel
that
2
any
Limited
Warmwater
Fishery
3
classification
should
be
considered.
It
4
should
be
taken
as
Fish
and
Wildlife
5
completely.
6
Five
Mile
Creek
is
not
on
the
7
303
D
list
which
means
that
there
has
8
been
no
effort
to
develop
a
TMDL
stream.
9
The
state
has
indicated
that
they
have
10
backed
off
from
providing
TMDL
analysis
11
for
the
stream.
We
feel
if
that
was
in
12
fact
developed
that
it
would
support
13
fish
and
wildlife.
14
As
previously
mentioned
in
this
15
meeting
the
Environmental
Commission
for
16
the
State
of
Alabama
recommended
that
17
this
stream
be
upgraded
to
Fish
and
18
Wildlife.
Due
to
opposition
and
due
to
19
interaction
with
the
Alabama
Joint
20
Committee
on
Administrative
Regulations
21
that
classification
was
overturned,
so
22
we
have
the
state
environmental
23
regulatory
body
recognizing
that
Fish
0028
1
and
Wildlife
is
achievable,
but
they
are
2
overwritten
by
a
legislative
committee.
3
As
far
as
the
discharges
into
4
the
stream
that
would
prevent
the
5
classification
of
Fish
and
Wildlife
6
presently
Jefferson
County
is
under
a
7
consent
decree
agreement
in
which
they
8
will
limit
the
amount
of
bypass
and
9
create
measures
to
prevent
further
10
discharge
of
industrial
or
municipal
11
sewage
into
the
stream
due
to
overflow
12
situations.
13
In
our
submittal
on
E­
docket
14
we're
also
including
various
drafts
from
15
ABC
and
the
Sloss
Industries.
They
have
16
permits
that
expired
in
August
of
1999
17
and
September
of
1998.
We
have
an
18
extended
time
period
they
have
been
19
allowed
to
operate
under
permits
that
20
have
been
expired.
They
are
21
continuously
exceeding
limitations
on
22
those
discharge
permits,
and
these
23
permits
are
structured
under
the
ENI
0029
1
classification
which
allows
for
large
2
discharges
of
cyanide
and
that
in
turn
3
feeds
the
fact
that
the
stream
is
not
4
capable
of
supporting
fish.
We
have
5
various
reports
that
we
are
presenting
6
that
shows
that
there
have
been
fish
7
kills
in
the
stream.
There's
even
an
8
item
that's
on
the
docket
already
that
9
indicates
an
inspection
found
dead
10
crawfish
and
other
aquatic
organisms
11
near
the
discharge
points
of
some
of
12
these
industrial
activities.
13
The
classification
of
Industrial
14
and
Agricultural
is
no
more
than
just
a
15
permit
for
assimilation
of
waste.
16
Included
in
the
discharge
permit
for
the
17
Sloss
Industries
operation
is
a
thirteen
18
thousand
gallon
per
day
discharge
which
19
is
trucked
in
from
South
Alabama
from
20
AirChem.
So
Five
Mile
Creek
is
being
21
used
as
a
dumping
grounds
for
waste
from
22
off­
site.
23
A
review
of
the
information
0030
1
that's
available
to
us
shows
that
other
2
industries
and,
or
other
operations
in
3
coke
and
other
related
industries
have
4
complied
with
the
Fish
and
Wildlife
5
discharge
requirements.
Some
have
been
6
noted
as
winning
awards
for
their
7
participation
and
their
accomplishments
8
in
cleaning
up
some
of
the
discharges
9
that
they
have.
10
What
we
would
like
to
do
in
11
addition
to
the
comments
here
today
on
12
the
Fish
and
Wildlife
classification
is
13
we
would
like
to
request
that
the
EPA
14
step
in
and
further
enforce
the
15
violations
that
have
been
made
to
these
16
permits
in
order
to
ensure
that
the
Fish
17
and
Wildlife
classifications
are
met.
18
We're
approaching
sometimes
ten
times
19
the
permitted
discharge
of
cyanide
into
20
the
creek.
That
is
something
that
can
21
be
avoided.
We're
failing
to
even
meet
22
the
limitations
on
ENI
and
that
is
not
23
the
technological
problem,
that
is
an
0031
1
operational
problem.
We'd
also
ask
that
2
the
EPA
consider
including
COD
and
BOD
3
requirements
on
discharge
permits
of
the
4
discharges
going
into
the
streams.
In
5
order
to
assure
that
we
are
fully
in
6
compliance
with
the
Fish
and
Wildlife
7
designation
we'd
like
to
ask
that
any
8
permits
that
are
written
for
discharge
9
into
this
stream
consider
total
cyanide,
10
not
just
free
cyanide.
11
The
documentation
that
has
been
12
developed
to
support
the
testing
for
13
free
cyanide
is
based
on
discharges
that
14
occur
in
gold
production
and
other
heavy
15
metal
producing
industries
which
is
a
16
total
different
situation
than
it
occurs
17
in
the
coke
processing
process.
One
of
18
the
disadvantages
of
using
a
total
19
cyanide
testing
protocol
is
that
that
20
test
has
been
shown
to
be
impacted
and
21
have
adverse
indications
as
a
result
of
22
sulfur
compounds
that
may
be
present
in
23
the
stream.
As
we
all
know
these
0032
1
discharges
do
contain
a
quantity
of
2
sulfur
compounds.
3
In
addition,
information
that
is
4
included
in
the
docket,
and
in
5
particular
a
report
from
CH
2
ML
under
6
docket
0W
2002
023­
02
dated
February
22,
7
2002
from
J.
P.
Martin
to
the
ADEM
8
hearing
officer,
indicates
that
cyanide
9
salt
content
in
the
discharge
from
these
10
operations
strongly
affects
the
toxicity
11
of
the
effluent.
Depending
on
the
12
acification
of
the
salt
this
may
not
be
13
detected
under
the
new
protocol.
So
14
we'd
ask
that
under
the
development
of
15
any
permits
for
the
Fish
and
Wildlife
or
16
even
the
ENI
segment
that
it
consider
17
that
comment.
18
We
would
like
to
request
once
19
again
that
enforcement
actions
be
20
proceeded
again
on
the
discharges
for
21
the
abundant
amount
of
cyanide
that
is
22
being
released
in
the
stream.
We
23
appreciate
your
time
this
afternoon,
and
0033
1
we
will
be
submitting
documents
under
2
the
E­
docket.
3
MR.
MCGILL:
The
next
speaker
4
will
be
Brad
McClain
with
the
Alabama
5
Rivers
Alliance.
6
MR.
MCCLAIN:
I
had
signed
up
to
7
speak
this
evening
but
since
you
called
8
me
I
will
briefly
say
on
behalf
of
the
9
Alabama
Rivers
Alliance
that
we
were
10
prepared
to
support
the
EPA's
actions
11
and
we
still
support
EPA
moving
forward
12
with
this
proposed
rule
until
such
time
13
as
the
ADEM
proposed
rule
is
adopted,
14
but
we're
very
encouraged
to
hear
that
15
ADEM
supports
the
proposed
upgrade
to
16
Fish
and
Wildlife
and
plans
to
move
17
forward
at
the
state
level
and
that
18
Sloss
Industries
supports
state
action
19
to
that
effect.
So
that
will
conclude
20
my
comments
for
now.
I
may
speak
again
21
this
evening
or
may
not.
Thank
you.
22
MR.
MCGILL:
The
next
speaker
is
23
Roger
Conville
with
the
Black
Warrior
0034
1
Riverkeeper.
2
MR.
CONVILLE:
As
the
State
of
3
Alabama
has
had
its
problems
with
4
enforcement
areas
of
Clean
Water
the
5
Black
Warrior
Riverkeeper
would
like
to
6
ask
that
in
light
of
the
fact,
and
using
7
this
particular
case
as
a
study,
Black
8
Warrior
Riverkeeper
would
like
to
ask
9
because
of
the
ineffectiveness
and
the
10
unwillingness
of
the
state
either
ADEM
11
and/
or
legislator
or
legislation
to
EPA
12
to
come
in
and
take
primacy
in
the
State
13
of
Alabama
for
the
effectiveness
or
the
14
implementation
of
the
Clean
Water
Act
15
that
has
been
in
place
that
has
not
been
16
able
to
be
completed
or
fulfilled.
17
Again,
this
case
being
a
study,
and
18
would
ask
that
EPA
would
take
primacy
as
19
you
did
in
Mississippi
and
help
Alabama
20
do
what
it
does
not
seem
to
be
able
to
21
do
for
itself.
22
Thank
you.
23
MR.
MCGILL:
Is
there
anyone
0035
1
else
who
wishes
to
speak?
If
so
I'd
ask
2
you
to
fill
out
a
registration
form,
but
3
I
think
that's
everybody.
What
I
think
4
we'll
do
is
take
a
15­
minute
recess.
We
5
want
to
give
everyone
who
wants
to
speak
6
during
this
public
hearing,
which
lasts
7
until
5:
00,
an
opportunity
to
speak.
8
We'll
return
here
or
we'll
begin
again
9
at
2:
50
and
see
if
at
that
time
we
have
10
anyone
else
who
wishes
to
speak.
11
12
(
A
recess
was
taken.)
13
14
MR.
MCGILL:
The
next
speaker
is
15
Guy
Moore
who
is
a
property
owner
and
16
pastor
in
the
community.
17
MR.
MOORE:
I
apologize
being
18
unprepared.
I
am
coming
in
at
the
last
19
second
like
this.
20
I'm
a
property
owner
in
the
21
area,
have,
my
father
and
I
together
22
have
about
a
quarter
of
a
mile,
well
a
23
little
over
half
a
mile.
I
have
about
a
0036
1
quarter
of
a
mile,
my
dad
a
little
over
2
a
quarter
of
a
mile
of
creekfront
3
property
there,
and
we
been
living
on
4
Five
Mile
Creek
all
my
life.
It's
a
5
beautiful
creek
and
just
to
give
you
6
some
quick
points
about
it.
The
creek
7
came
back
to
life
miraculously
a
few
8
years
ago,
about
10
or
12
years
ago,
and
9
it
was
a
dead
creek
for
years.
When
I
10
grew
up
as
a
kid
it
was
a
dead
creek
but
11
it
came
back
to
life
and
on
one
occasion
12
just
a
few
years
ago
down
there
with
my
13
family,
just
some
of
us
as
we
wade
that
14
creek
and
we
fish
that
creek,
we
caught
15
over
100
fish
in
one
day
down
there
but
16
you
can't
catch
100
fish
down
there
now,
17
about
the
last
two
or
three
years.
I
18
don't
know
what's
killed
all
the
fish
19
but
something
has.
I've
got
a
pretty
20
good
idea
what
it
is.
21
I've
had
rashes
that
have
broken
22
out
on
my
body
as
I've
been
in
the
creek
23
wading
and
have
been
irritated
as
I've
0037
1
waded
the
creek.
It's
a
creek
that
2
we've
enjoyed.
3
I'm
also
a
local
pastor.
The
4
creek
also
is,
creek
front
property
that
5
the
church
that
I
pastor
is
on
there,
6
Republic
Baptist
Church.
We
baptize
one
7
of
the
little
communities
right
down
8
below
the
creek
down
there.
Some
of
the
9
church
members
have
a
little
place
that
10
was
the
old,
where
they
baptized
years
11
ago.
We
have
a
baptistry
with
our
12
church.
We
had
some
of
the
church
13
members
in
the
last
decade
have
asked
to
14
be
baptized
there.
We
baptized
about
15
seven
people
in
the
creek
a
few
years
16
ago
as
well.
One
of
my,
one
of
the
17
folks
in
the
community
asked
me
are
they
18
all
still
living
now.
I
said
well
not
19
all
of
them,
some
of
them
are
still
20
living.
21
I
really
do
believe
this.
I
22
believe
that
the
creek
it
needs
to
be
23
upgraded.
I
mean
this,
I
mean
we,
this
0038
1
is
insanity
that
we
are
here
talking.
2
We're
talking
about
30
years
later,
3
we've
got
a
Clean
Water
Act.
We've
got
4
storm
water
management
in
Jefferson
5
County
now
that
everybody,
that
every
6
tax
payer
is
paying
five
dollars,
or
7
fifteen
dollars
on
their
tax
bill
to
8
take
care
of
clean
water,
and
we're
9
letting
somebody
dump
into
our
creek
10
that
goes
right
into
the
Warrior
River.
11
Now
I'm
probably
repeating
12
what's
already
been
said
here.
This
is
13
insanity.
I
mean
I
can't
believe
we're
14
still
here.
I
can't
believe
we've
got
15
legislatures
that
turns
around
when
16
we've
already
made
a
decision
and
are
17
able
to
do
what
they've
done
and
people
18
still
support
them
and
put
them
back
in
19
office
again.
It's
ridiculous
and
so
20
I'm
outraged
as
a
citizen
of
Jefferson
21
County,
but
also
I'm
outraged
that
so
22
far
that
the
folks
that
I
depend
upon
23
and
my
government
is
not
doing
something
0039
1
to
help
me
beyond
just
my
legislature
2
and
that's
the
reason
I
appreciate
so
3
much
today
that
we're
here
but
don't
let
4
them
put
it
off
forever.
I
mean
this
is
5
ridiculous.
Thirty
years
is
long
6
enough.
It's
time
now.
Let's
go
ahead
7
and
clean
our
creek
up
and
get
it
where
8
it
needs
to
be,
and
if
I
sound
intense
9
it's
because
I
am.
I'm
not
near
as
10
been,
as
near
demonstrative
today
as
I
11
have
been
in
the
past
as
I've
discussed
12
this
with
others
in
the
system
and
part
13
of
my
legislature.
14
I
would
appreciate
if
you
would
15
pay
careful
attention.
I
realize
by
16
being
a
bureaucrat
myself
and
being
for
17
so
long
in
local
politics,
well
in
the
18
local
government,
that
what
gets
19
attention
is
people
showing
up.
There's
20
a
lot
of
people
that
care
about
this
21
issue
that
are
not
here
today
that
are
22
depending
on
the
few
of
us
who
are
here
23
to
enforce
their
opinion.
0040
1
There
will
be
more
writings
2
about
this,
but
I
just
want
to
3
communicate
to
you
that
the
creek
has
4
been
alive
and
viable
and
it's
a
5
beautiful
recreational
creek.
We
can
6
make
it
that
again.
Do
not
put
this
off
7
any
longer.
It's
time
to
go
ahead
and
8
clean
our
creek
up,
and
I
think
the
9
people
in
Jefferson
County
and
of
10
Alabama
will
be
served
by
doing
so.
11
Thank
you.
12
MR.
MCGILL:
Is
there
anyone
13
else
who
has
filled
out
a
registration
14
form
indicating
they
would
like
to
15
speak?
If
not
we
will
recess
until
16
3:
30.
We
will
be
here
until
5:
00.
The
17
hearing
will
last
until
then,
so
we'll
18
resume
at
3:
30
and
see
if
we
have
19
anymore
speakers
at
that
time.
20
Thank
you.
21
22
(
A
recess
was
taken.)
23
0041
1
MR.
MCGILL:
We
don't
have
any
2
other
speakers
who
have
signed
up,
or,
3
that
is,
we
haven't
had
anybody
else
4
register
to
speak
and
so
in
case
I'm
5
mistaken
please
correct
me
if
there's
6
anyone
out
there
who
does
need
to
speak
7
who
has
not
yet.
We
will
take
another
8
recess
until
4:
15.
We'll
see
you
then.
9
10
(
A
recess
was
taken.)
11
12
MR.
MCGILL:
May
I
have
your
13
attention?
Because
no
one
else
has
14
registered
to
speak
we
will
continue
the
15
recess
until
4:
45,
and
if
there
are
16
still
no
speakers
that
register
by
that
17
time
we
will
plan
to
adjourn
at
that
18
time.
19
20
(
A
recess
was
taken.)
21
22
MR.
MCGILL:
I
want
to
thank
23
each
of
you
for
your
participation
in
0042
1
this
public
hearing.
The
comments
which
2
we
have
received
today,
both
oral
and
3
written,
will
be
carefully
considered
4
and
evaluated
as
we
make
our
5
determinations
regarding
Five
Mile
6
Creek.
We
will
close
the
official
7
public
comment
period
on
December
23,
8
2002.
9
Again,
thank
you
for
your
10
participation,
and
the
afternoon
session
11
of
the
hearing
is
adjourned.
We
will
12
begin
the
evening
session
of
this
13
hearing
promptly
at
7:
00
p.
m.
14
15
END
OF
HEARING
16
17
18
19
20
21
22
23
