[Federal Register: September 23, 2004 (Volume 69, Number 184)]
[Notices]
[Page 57010-57011]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23se04-45]
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DELAWARE RIVER BASIN COMMISSION
Notice of Proposed Rulemaking; Proposed Amendment of the Water
Quality Regulations, Water Code and Comprehensive Plan To Establish
Pollutant Minimization Plan Requirements for Point and Non-Point Source
Discharges of Toxic Pollutants
AGENCY: Delaware River Basin Commission.
SUMMARY: The Delaware River Basin Commission (``Commission'' or
``DRBC'') will hold a public hearing to receive comments on a proposed
amendment to the Commission's Water Quality Regulations, Water Code and
Comprehensive Plan to establish pollutant minimization plan
requirements for point and non-point source discharges of toxic
pollutants following issuance of a total maximum daily load (TMDL)
under section 303(d) of the Clean Water Act (CWA) by either a member
state or the U.S. Environmental Protection Agency (EPA), or issuance of
an assimilative capacity determination by the Commission.
A TMDL establishes the maximum loading of a pollutant that a water
body can receive without causing an impairment of the water quality
standard, which includes designated uses, water quality criteria
calculated to protect those uses, and antidegradation requirements.
When water quality standards are not attained, despite the technology-
based control of industrial and municipal wastewater (point sources),
the CWA requires that the impaired waters be identified on the state's
Section 303(d) list and that a TMDL be developed for the pollutant or
pollutants causing the impairment. A determination of the assimilative
capacity of a water body for a given pollutant under Section 4.30.7 of
the Commission's Water Quality Regulations is similar to the
establishment of maximum total loading for a water body in a TMDL. The
Commission may issue an assimilative capacity determination whenever a
stream quality objective (the Commission's term for a numeric water
quality criterion) is not being attained.
A TMDL or assimilative capacity determination does not in and of
itself result in any improvement in water quality. Rather, the total
loading or assimilative capacity must be allocated among the various
sources contributing to the water quality impairment, and each
discharger must reduce its discharge to achieve its allocated load. For
point source discharges, the individual load allocation typically is
converted to an effluent limitation in a National Pollutant Discharge
Elimination System (NPDES) permit issued under section 402 of the Clean
Water Act. For non-point sources, the load allocation typically is
achieved through Best Management Practices (BMPs).
For certain toxic pollutants in water bodies within the Delaware
River Basin, ambient and/or effluent monitoring shows that loadings are
many times higher than the levels required to ensure that water quality
standards are met. Substantial reductions in loadings of such
pollutants from all point and non-point sources are needed to protect
the designated uses. However, the process of developing and allocating
a total load or determining the assimilative capacity of the water body
for the pollutant may take the regulatory agencies many years. As has
become apparent in the case of the TMDL for polychlorinated biphenyls
(PCBs) in the Delaware Estuary, issued by EPA on December 15, 2003 on
behalf of the states of Delaware, New Jersey, and Pennsylvania, it may
be many more years before the states are able to incorporate
implementing provisions into NPDES permits for point sources and
require implementing BMPs for non-point sources. For PCBs, and possibly
for other persistent bioaccumulative toxic chemicals, still more time--
in some cases decades--will be needed before dischargers achieve
sufficient load reductions to achieve the water quality standards. The
proposed rule is intended to accelerate real improvements in water
quality by authorizing the Commission to require point and non-point
source dischargers to initiate load reduction efforts sooner. No
numeric targets are proposed. Rather, the rule is based on concepts of
pollution prevention and sustainability and the recognition that
dischargers that are familiar with their own operations may be best
situated to identify opportunities for achieving prompt loading
reductions in a cost-effective manner. To comply with the rule,
dischargers must plan and implement measures for achieving the maximum
practicable reduction of pollutant discharges to the air, soil, and
water.
The proposed rule is primarily a gap-filling measure. For point
sources, it will cease to apply to any discharge upon the next issuance
by the state or EPA of a NPDES permit or permit renewal with respect to
that discharge. For non-point discharges, the Commission's intention is
to apply the rule only where existing state and federal programs will
not ensure
[[Page 57011]]
implementation of the TMDL or assimilative capacity determination.
The rule has four principal parts. Section A addresses the scope of
the rule--both the pollutants and the entities intended to be
regulated. Section B sets forth procedures for submission, review,
implementation, and continuation of Pollutant Minimization Plans
(``PMPs'' or ``plans'') required under the rule, including the
relationship of the rule to the NPDES permit program. Section C lists
the elements required to be included in a PMP, and Section D sets forth
the requirement that dischargers submit a report annually, quantifying
changes in pollutant loadings since initiation of the PMP and
describing measures under way or completed to reduce loadings.
Additional sections include a waiver provision and a provision for the
development of guidance to assist dischargers in developing PMPs under
the rule.
Scope of the Proposed Rule. The scope of the proposed rule is
limited to toxic chemicals listed in Section A.1 of the rule. The
proposed rule lists one pollutant--PCBs--for which the EPA issued a
TMDL for the Delaware Estuary on December 15, 2003. Additional
pollutants may be added to the rule only through notice and comment
rulemaking.
Classes of dischargers or individual dischargers proposed to be
subject to the rule may be added by amendment or by a directive of the
Commission's Executive Director, upon approval by the Commission. Two
classes of PCB dischargers are initially proposed to be included: those
listed in Group 1 of Tables 3-2 through 3-5 of Appendix 3 of the
document, U.S. Environmental Protection Agency Regions II and III,
Total Maximum Daily Loads for Polychlorinated Biphenyls (PCBs) for
Zones 2-5 of the Tidal Delaware River (December 15, 2003); and those
listed in Group 2 of the same tables in the event that the presence of
PCB congeners is confirmed through monitoring in accordance with the
requirements set forth in Appendix 3 of the same document.
Procedures for Submission, Review, Implementation and Continuation
of PMPs. The proposed rule requires dischargers to submit a PMP to the
Commission and the permitting agency, if any, within three months of
publication of a final rule or issuance of a directive by the Executive
Director. The Commission staff, in consultation with the permitting
agency staff (if applicable), will review each PMP for completeness,
and the Executive Director will issue a completeness determination,
either confirming that a PMP contains all components required by the
rule, or identifying deficiencies in the PMP. Where a deficiency is
identified, a discharger has 30 days to submit a revised PMP reflecting
a good faith effort to cure the deficiency. The rule sets forth
procedures for subsequent revisions if necessary, and allows the
Executive Director to seek penalties against a discharger for repeated
failure to comply, or grant a waiver from a requirement of the rule for
good cause shown. The discharger must commence implementation of its
plan as submitted within 60 days of receipt of a determination of
completeness.
Upon issuance of a final new or renewed NPDES permit by EPA or a
member state after the imposition of a PMP requirement under the
proposed rule, the permit supersedes any provisions of the PMP that
relate to the NPDES-permitted discharge.
PMPs for point source discharges will receive a thorough
substantive review at the time of NPDES permit issuance or reissuance.
Due to limited agency resources, earlier substantive review of PMPs by
the Commission or the member states is authorized but not required. The
rule provides that if the Commission determines at any time that a PMP
is not likely to achieve the maximum practicable reduction of pollutant
discharges to the air, soil, or water, it may require the discharger to
submit a revised PMP to more aggressively reduce pollutant loading.
The initial term of the PMP is to be five years. The term of any
PMP that is not superseded by a NPDES permit within five years may be
extended by the Executive Director, following a review by the
Commission staff in consultation with the staff of the appropriate
state environmental agency.
Plan Elements. Interested parties are referred to the text of the
rule for the required elements of a PMP. Notably, these elements
include strategies for tracking down unknown sources of the pollutant,
as well as for minimizing releases of the pollutant where sources are
found. Plans also must include a description of the procedures to be
used to measure, demonstrate and report progress in reducing potential
and actual discharges of the pollutant, including annual sampling and
analysis of discharges using a prescribed analytical method if one is
listed in the rule. In the case of PCBs, dischargers are required to
measure loadings annually using EPA Method 1668, Revision A.
Dischargers are encouraged to use less complex and expensive analytical
methods where possible for purposes of screening or identifying
pollutant sources.
Annual Report. Annual sampling and reporting using a uniform method
are required in order for dischargers and regulators to determine the
effectiveness of a PMP in reducing pollutant loadings to a waterway.
DATES: The public hearing will be held on October 27, 2004 at 11 a.m.
as part of the Commission's regularly scheduled business meeting. The
hearing will end 60 to 90 minutes later, at the discretion of the
Commission chair. If necessary, the hearing will be continued at a date
and location announced by the Commission chair, until all those who
wish to testify are afforded an opportunity to do so. Persons wishing
to testify at the hearing are asked to register in advance with the
Commission Secretary by phoning (609) 883-9500, extension 224. Written
comments will be accepted through Friday, November 19, 2004.
ADDRESSES: The full text of the proposed rule will be posted no later
than October 1, 2004 on the Commission's Web site, http://www.drbc.net.
The public hearing will be held in the Kirby Auditorium at the National
Constitution Center, 525 Arch Street, Independence Mall, Philadelphia.
Written comments should be addressed to the Commission Secretary as
follows: by e-mail to paula.schmitt@drbc.state.nj.us; by fax to (609)
883-9522; by U.S. Mail to Commission Secretary, DRBC, PO Box 7360, West
Trenton, NJ 08628-0360; or by overnight mail to Commission Secretary,
DRBC, 25 State Police Drive, West Trenton, NJ 08628-0360.
FOR FURTHER INFORMATION CONTACT: Please contact Commission Secretary
Pamela Bush, (609) 883-9500 ext. 203, with questions about the proposed
rule or the rulemaking process.
Dated: September 17, 2004.
Pamela M. Bush,
Commission Secretary.
[FR Doc. 04-21351 Filed 9-22-04; 8:45 am]
BILLING CODE 6360-01-P