0001
1
2
3
4
5
6
7
ENVIRONMENTAL
PROTECTION
AGENCY
8
PUBLIC
HEARING
9
DECEMBER
12,
2002,
7:
00
TO
9:
00
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
evening,
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
EPA
Region
4
Office
in
Atlanta,
Georgia.
7
This
hearing
is
being
held
to
8
receive
public
comments
on
proposed
9
water
quality
standards
for
the
segment
10
of
Five
Mile
Creek
from
Newfound
Creek
11
to
Ketona.
EPA
proposed
the
water
12
quality
standards
for
this
stream
13
segment
in
the
Federal
Register
October
14
23,
2002.
The
information
from
this
15
hearing
will
be
used
by
EPA
to
assess
16
the
attainability
of
aquatic
uses
for
17
this
stream
and
to
determine
if
the
18
proposed
federal
use
designation
is
19
appropriate
for
this
water
body.
20
This
is
the
second
of
two
21
sessions
being
held
today
to
receive
22
comments
on
EPA's
proposed
water
quality
23
standards
for
Five
Mile
Creek.
This
0003
1
evenings
session
will
be
held
open
until
2
9:
00
p.
m.
However
in
the
event
that
we
3
do
not
get
any
new
members
or
if
there
4
is
no
one
else
that
registers
between
5
now
and
8:
00
we
will
likely
adjourn
at
6
that
time.
The
first
session
was
held
7
earlier
today
from
2:
00
to
5:
00.
8
It
is
not
necessary
for
you
to
9
speak
this
evening
if
you
made
a
10
presentation
at
the
earlier
session
this
11
afternoon.
We
request
that
you
speak
12
this
evening
if
you
were
not
present
at
13
the
earlier
session,
or
if
you
wish
to
14
make
comments
in
addition
to
those
that
15
you
made
during
the
afternoon
session,
16
or
if
you
wish
to
respond
to
the
content
17
of
other
presenters.
18
Background
information
on
EPA's
19
proposed
action
is
included
in
the
Fact
20
Sheet
which
is
available
at
the
21
registration
table.
Also,
a
copy
of
the
22
October
23,
2002
Federal
Register,
which
23
contains
the
text
of
EPA's
proposed
rule
0004
1
and
the
supporting
preamble
to
the
2
proposal,
is
available
at
the
3
registration
table.
4
If
you
have
not
filled
out
a
5
registration
form,
please
do
so,
as
that
6
is
how
I
will
know
if
you
would
like
to
7
speak.
After
I've
explained
the
ground
8
rules
for
the
hearing
and
a
few
details
9
about
how
EPA
will
use
the
information
10
gathered
today,
I
will
begin
to
call
the
11
names
of
those
people
who
have
expressed
12
an
interest
in
making
comments
during
13
the
hearing.
14
The
public
hearing
was
announced
15
on
October
28,
2002
in
the
Birmingham
16
News.
A
notice
of
this
hearing
was
also
17
announced
in
the
Federal
Register,
18
Volume
67,
Number
205,
on
October
23,
19
2002.
These
notices
stated
that
EPA
is
20
requesting
that
written
information
and
21
other
data
be
submitted
to
EPA
by
22
December
23,
2002.
These
written
23
comments
should
be
directed
to
Mr.
Fritz
0005
1
Wagener
at
EPA
Region
4,
Atlanta
Federal
2
Center,
Water
Management
Division,
61
3
Forsyth
Street
Southwest,
Atlanta,
4
Georgia,
30303.
This
address
is
also
5
listed
on
the
Fact
Sheet
available
at
6
the
registration
desk.
The
Federal
7
Register
Notice
also
describes
other
8
ways
that
comments
may
be
submitted
to
9
EPA,
including
comments
submitted
by
10
E­
mail,
by
hand
delivery
or
courier,
and
11
by
commenting
through
EPA's
Internet
12
site
at
www.
epa.
gov/
edocket.
The
13
Federal
Register
Notice
also
contains
14
instructions
on
how
to
review
EPA's
15
official
public
docket
for
this
16
proposal.
The
docket
can
either
be
17
reviewed
at
EPA's
Region
4
Office
in
18
Atlanta,
or
on
EPA's
Internet
site.
I
19
encourage
you
to
read
the
Federal
20
Register
notice
for
a
full
explanation
21
on
how
to
view
the
docket
on­
line.
22
Although
the
proceedings
of
this
23
hearing
are
being
recorded
and
a
0006
1
transcript
will
be
included
in
the
2
administrative
record,
I
also
ask
that
3
you
leave
a
copy
of
your
comments
if
you
4
have
prepared
a
printed
version.
5
Section
303(
c)
of
the
Clean
6
Water
Act
authorizes
the
EPA
7
Administrator
of
promulgate
water
8
quality
standards
to
supersede
State
9
standards
that
have
been
disapproved,
or
10
in
any
case
where
the
Administrator
11
determines
that
a
new
or
revised
12
standard
is
necessary
to
meet
the
13
requirements
of
the
Act.
It
is
these
14
Section
303(
c)
authorities
that
EPA
used
15
in
releasing
the
proposed
standards
16
which
are
the
subject
of
today's
17
hearing.
18
Prior
to
EPA's
proposal
of
this
19
rule,
EPA
reviewed
all
available
20
relevant
physical,
chemical,
biological,
21
and
economic
information
for
Five
Mile
22
Creek.
EPA
applied
a
presumption
that
23
the
State's
Fish
and
Wildlife
uses
were
0007
1
attainable
unless
it
could
be
2
affirmatively
demonstrated
that
these
3
uses
were
not
attainable.
However,
EPA
4
believes
that
the
available
data
does
5
not
refute
the
conclusion
that
the
Fish
6
and
Wildlife
uses
are
attainable.
7
The
citation
for
the
proposed
8
standards
is
40
CFR
Section
131.34
9
Subsection
(
a),
entitled
"
Use
10
designations
for
surface
waters,"
is
11
proposed
as
a
listing
of
the
use
12
classification
for
the
segment
of
Five
13
Mile
Creek
from
Newfound
Creek
to
14
Ketona.
Subsection
(
b),
entitled
"
Water
15
quality
standard
variances,"
is
proposed
16
as
a
procedure
for
granting
variances
to
17
the
federal
rule.
Inclusion
of
this
18
procedure
acknowledges
that
a
variance
19
to
the
provisions
of
the
final
federal
20
rule
can
only
be
granted
by
EPA
and
21
establishes
the
Regional
Administrator
22
of
EPA
Region
4
as
the
authorized
23
representative
of
EPA
with
that
0008
1
authority.
A
variance
to
the
proposed
2
rule
could
be
granted
only
if
3
requirements
equivalent
to
those
listed
4
in
40
CFR
Section
131.10(
g)
have
been
5
met,
and
the
variance
would
not
result
6
in
a
situation
where
the
continued
7
existence
of
any
threatened
or
8
endangered
species
listed
under
section
9
4
of
the
Endangered
Species
Act
would
be
10
jeopardized
or
such
species'
critical
11
habitat
would
be
adversely
modified.
12
It
is
important
to
recognize
13
that
the
inclusion
of
a
variance
14
mechanism
in
the
proposed
rule
will
15
establish
an
additional
level
of
16
flexibility
than
may
be
currently
17
allowed
under
the
current
State­
adopted
18
surface
water
use
classifications.
Also,
19
a
variance
would
apply
only
to
one
water
20
quality
parameter,
while
all
other
21
criteria
for
the
Fish
and
Wildlife
use
22
classification
remain
in
effect.
This
23
allows
a
higher
level
of
protection
0009
1
than
the
alternate
option
which
assigns
2
a
lower
use
classification,
such
as
3
Limited
Warmwater
Fishery
or
4
Agricultural
and
Industrial
Water
5
Supply,
as
these
use
classifications
6
include
less
protective
criteria
based
7
on
the
protection
of
other
uses
or
8
protect
for
Fish
and
Wildlife
uses
only
9
during
certain
parts
of
the
year.
10
EPA
also
encourages
comments
on
11
the
variance
mechanism
included
in
the
12
October
23,
2002
proposal,
and
we
can
13
consider
it
to
be
an
important
part
of
14
the
implementation
of
EPA's
guidance
for
15
assignment
of
designated
uses
and
16
protection
of
water
quality.
17
After
December
23,
2002,
which
18
is
at
the
end
of
the
comment
period,
EPA
19
will
review
all
information
available
to
20
the
agency
on
this
stream
segment.
21
Based
on
the
information
available
at
22
that
time,
EPA
will
determine
if
23
revisions
to
the
proposed
rule
are
0010
1
warranted.
In
developing
the
proposed
2
standards
for
Five
Mile
Creek,
EPA
used
3
the
procedures
set
out
for
States
in
40
4
CFR
Part
131,
and
EPA's
implementing
5
policies,
procedures,
and
guidance.
6
I
would
like
to
now
introduce
7
the
hearing
panel.
On
my
left
is
8
Claudia
Fabiano
of
the
Office
of
Water
9
in
EPA's
Headquarters
Office
in
10
Washington,
D.
C.
On
her
left
is
Craig
11
Higgason,
Associate
Regional
Counsel
of
12
EPA
Region
4
Office
of
Regional
Counsel,
13
and
on
my
right
is
Fritz
Wagener,
Water
14
Quality
Standards
Coordinator
for
EPA's
15
Region
4
Atlanta
Office.
16
Given
that
as
a
general
17
description
of
the
need
and
purposes
for
18
this
hearing,
I
will
now
call
the
first
19
speaker.
As
we
proceed
with
the
20
hearing,
I
would
like
to
ask
each
person
21
making
a
statement
to
step
up
to
the
22
microphone,
state
his
or
her
name,
23
spelling
it
if
necessary,
and
state
your
0011
1
interest
or
organization
represented.
2
I'd
like
to
ask,
there
are
two
3
people
that
filled
out
forms
earlier
who
4
may
wish
to
speak,
Jim
Henry
of
the
5
Sloss
Industries
Corporation.
Jim,
6
would
you
like
to
speak?
7
MR.
HENRY:
Well
I
don't
think
8
there's
anyone
here
that
wasn't
here
9
before.
Is
that
correct?
10
MR.
MCGILL:
I
believe
that's
11
correct
with
the
exception
of
Mr.
12
Newton.
13
MR.
HENRY:
If
no
one
else
is
14
here
I
don't
have
any
comments.
Thank
15
you.
16
MR.
MCGILL:
Brad
McClain
was
17
the
only
other
person
to
register.
18
MR.
MCCLAIN:
I
went
ahead
and
19
spoke
before.
20
MR.
MCGILL:
Okay.
Well
what
21
I'd
like
to
do
is
take
a
recess
until
22
7:
50,
and
if
no
one
else
shows
up
that
23
wasn't
here
in
the
afternoon
session
0012
1
then
we
will
plan
to
adjourn
at
8:
00.
2
So
again
we
will
continue
at
7:
50.
3
Thank
you.
4
5
(
A
recess
was
taken.)
6
7
MR.
MCGILL:
I
want
to
thank
8
each
of
you
for
your
participation
in
9
this
public
hearing.
The
comments
which
10
we
have
received
today,
both
oral
and
11
written,
will
be
carefully
considered
12
and
evaluated
as
we
make
our
13
determinations
regarding
Five
Mile
14
Creek.
We
will
close
the
official
15
public
comment
period
on
December
23,
16
2002.
17
Again,
thank
you
for
your
18
participation,
and
the
evening
session
19
of
this
hearing
is
adjourned.
20
Thanks
very
much.
21
22
END
OF
HEARING
23
