[Federal Register Volume 59, Number 136 (Monday, July 18, 1994)] [Unknown Section] [Page 0] From the Federal Register Online via the Government Publishing Office [www.gpo.gov] [FR Doc No: 94-17379] [[Page Unknown]] [Federal Register: July 18, 1994] ----------------------------------------------------------------------- ENVIRONMENTAL PROTECTION AGENCY [FRL-5014-7] Approval of Maryland's Submission of a Substantial Program Revision to Its Authorized National Pollutant Discharge Elimination System (NPDES) Program AGENCY: Environmental Protection Agency (EPA). ACTION: Notice of Approval of Maryland's revisions to its NPDES program; publication of EPA's response to public comments on Maryland's regulation revisions. ----------------------------------------------------------------------- SUMMARY: The State of Maryland submitted amendments to its Code of Maryland Regulations (COMAR) (adopted by the Secretary of the Environment on May 6, 1993) to EPA for review as a revision to the State's authorized NPDES program. The submitted revisions to Maryland's regulations are considered to be substantial revisions to Maryland's NPDES program and can be found at COMAR 26.08.03.07 and COMAR 26.08.04.02-1. EPA requested comments from the public on the regulation revisions in Federal Register notices dated November 10, 1993 and January 3, 1994 at 58 FR 59724 and 59 FR 87, respectively. EPA considered all public comments in review of Maryland's regulation revisions. A summary of the comments and EPA's response can be found below. After careful consideration of the regulation revisions and all public comments, EPA has determined that the revisions satisfy the Clean Water Act (CWA) and minimum federal requirements. Therefore, EPA has approved the revisions found at COMAR 26.08.03.07 and COMAR 26.08.04.02-1. These permit regulation revisions may now be considered effective and may be implemented. DATES: Maryland's regulation revisions, COMAR 26.08.03.07 and COMAR 26.08.04.02-1, were approved by EPA on May 6, 1994. The regulation revisions are effective on May 6, 1994. FOR FURTHER INFORMATION CONTACT: Helene Drago, (215) 597-8242, U.S. EPA, Region III, 3WM55, 841 Chestnut Building, Philadelphia, PA 19107. SUPPLEMENTARY INFORMATION: On May 6, 1993, the State of Maryland, adopted changes to its NPDES permit program regulations found at COMAR 26.08.03.07 and COMAR 26.08.04.02-1. Pursuant to 40 CFR 123.62 and CWA 304 and 402, EPA reviewed the NPDES permit program regulation for compliance with federal regulation. The revisions to Maryland's regulations were described in Federal Register notices dated November 10, 1993 and January 3, 1994 at 58 FR 59724 and 59 FR 87, respectively. A public notice of the regulation revisions was also published in the Baltimore Sun on November 12, 1993. Copies of Maryland's regulation revisions were available for review at the EPA Region III office in Philadelphia, PA. Copies were also available for purchase. As part of the public comment period, EPA provided the opportunity for a public hearing. However, there were no requests for a public hearing. All comments or objections received by EPA Region III were considered by EPA in its review of the NPDES regulation revisions. A list of persons who provided comment are provided below. A summary of the comments and EPA's response can be found below. After careful consideration of the regulation revisions, all public comment, and supplemental information submitted by Maryland Department of the Environment (MDE) in letters dated June 1, 1993, February 15, 1994 and March 23, 1994, EPA has determined that the substantial revisions to the Maryland's NPDES regulations found at COMAR 26.08.03.07 and COMAR 26.08.04.02-1 meet the requirements of the CWA and federal regulations. Therefore, EPA has approved the regulation revisions on May 6, 1994. EPA's approval letter, dated May 6, 1994, to David A. C. Carroll, Secretary of MDE, provides a full explanation of EPA's grounds for approval. These permit regulation revisions may now be considered effective and may be implemented. Response Summary to Public Comments Comment: EPA should not disapprove any part of the NPDES regulations since disapproval will jeopardize the agreement reached by a group of plaintiffs, MDE and the Chesapeake Bay Foundation. EPA's response: EPA understands that MDE, the Chesapeake Bay Foundation and a large group of litigants underwent a lengthy and complex negotiation to reach the agreement that is reflected in the revisions to Maryland's NPDES program. However, EPA is obligated under the CWA and federal regulations to review any substantial revisions to a State's NPDES regulations to ensure that the revisions meet minimum federal requirements. It is not reasonable for any party to request that EPA forgo its legal duty to carefully review the regulation revisions. EPA must have the freedom to review, and if necessary disapprove, any part of the regulations regardless of whether that disapproval will impact a lawsuit settlement. Comment: Maryland's intake credit regulation is similar if not more restrictive than that proposed in the Great Lakes Water Quality Initiative (GLWQI) and therefore should be approved. EPA's response: EPA agrees with the commentor that Maryland's intake credit regulation appears to be similar to EPA's preferred option found in the proposed GLWQI. The implementation of the intake credit regulation should assure that any discharger that meets the requirements of the regulation has no reasonable potential to cause or contribute to an exceedance of an applicable numeric or narrative water quality standard. EPA finds the intake credit provisions in Maryland's regulations acceptable at this time with the understanding that changes may be appropriate once the GLWQI is finalized. Comment: Maryland's regulations provide adequate provisions for whole effluent toxicity (WET) and are consistent with federal law and regulations. EPA's response: Under 40 CFR 122.44(d)(1), permitting authorities must establish whole effluent toxicity or chemical-specific effluent limitations in NPDES permits where a discharge causes, has the reasonable potential to cause, or contributes to an exceedance of a numeric or narrative water quality standard. Because Maryland's regulation does not require WET limits where standards violations are possible, Maryland's regulation is not consistent with federal regulations. However, EPA understands that Maryland is committed to working toward providing WET regulatory provisions that adequately address federal regulations. EPA has agreed to approve the regulation revisions under the following conditions: (1) MDE has provided an Attorney General's Certification, dated May 10, 1993, that defines MDE's legal authority to impose WET limits. (2) MDE has agreed to continue to discuss its WET program and the issue of WET limits outside the context of the this regulation revision. MDE will work with EPA to finalize, within three months of this approval, mutually acceptable permitting procedures that will be used to place WET limits in permits where appropriate. (3) MDE has agreed to revise the regulations to embody the concepts of 40 CFR 122.44(d)(1) within two years of March 23, 1994. Comment: 40 CFR 122.44(d)(1) allows an NPDES authorized State to exercise discretion in establishing whether pollutants are discharged at a level which will cause, have the reasonable potential to cause, or contribute to an excursion above any State water quality standard. Maryland's regulation 26.08.04.02-1C implements this discretion by allowing the State to determine that no ``reasonable potential'' exists if a facility meets certain specific criteria. EPA's response: EPA agrees that the State determines whether a discharge will cause, contribute or have the reasonable potential to cause or contribute to an excursion of a water quality standard. However, in making this determination a State must consider, at a minimum, the criteria found at 40 CFR 122.44(d)(1)(ii). ``When determining whether a discharge causes, has the reasonable potential to cause, or contributes to an in-stream excursion above a narrative or numeric criteria within a State water quality standard, the permitting authority shall use procedures which account for existing controls on point and nonpoint sources of pollution, the variability of the pollutant or pollutant parameter in the effluent, the sensitivity of the species to toxicity testing (when evaluating whole effluent toxicity), and where appropriate, the dilution of the effluent in the receiving water''. Maryland must consider these minimum criteria in determining ``reasonable potential''. Comment: There is no provision in EPA's regulations stating that a State cannot exercise its discretion in NPDES permitting on the basis of generally applicable criteria. If EPA's position is that any decision under 40 CFR 122.44(d)(1)(i) must be made in the context of an individual permit, EPA's position is legally incorrect. Maryland's regulation at 26.08.04.02-1C is a valid determination that any discharges meeting the listed criteria will not cause, have the reasonable potential to cause, or contribute to an excursion of water quality standard. EPA's response: EPA agrees that reasonable potential determinations need not be made only in the context of individual permits. EPA does not have an objection to the concept of using a categorical provision, as opposed to a permit-by-permit decision, to determine reasonable potential. However, when EPA approves the use of any general criteria, it is important that that general criteria is rigorously examined to ensure that its use will adequately satisfy all federal requirements. As it is written, it is difficult to determine whether Maryland's regulation at 26.08.04.02-1C would prevent a discharge from causing, contributing or having the reasonable potential to cause or contribute to an excursion of a water quality standard. However, the State of Maryland has determined that the criteria listed in the regulation is so narrowly defined that the regulation applies only to dry weather copper discharges to Colgate Creek from the General Motors facility, outfalls 001-003 and 010, located in Baltimore, MD. EPA and Maryland have examined the discharge in question and have determined that it does not cause, contribute or have the reasonable potential to cause or contribute to a water quality standard violation. All the criteria listed in 26.08.04.02-1C ensure no other facility or discharger can use the regulation in the State of Maryland and it is uniquely applicable to only the General Motors facility. Due to dilution and tidal flow found at Colgate Creek, the specific outfalls in question do not discharge concentrations that cause, contribute or have the reasonable potential to cause or contribute to an excursion of a water quality standard. Should another discharger attempt to use this regulation, or another State wish to adopt similar provisions in their NPDES permit regulations, EPA would require specific site information, the State's exact rationale for a finding of ``no reasonable potential'' and definitive language which would limit use of such an exemption to an appropriate discharge. EPA has worked closely with Maryland regarding this regulation and we have determined that this regulation is acceptable based on the specific data obtained from MDE in letters dated June 1, 1993; February 15, 1994; and March 23, 1994. Written Comments Received 1. Frances Dubrowski, Attorney, Chesapeake Bay Foundation 2. George Van Cleve, Attorney, General Motors Corporation 3. Alan Bahl, Environmental Engineer, Red Star Yeast & Products, Baltimore, MD 4. Deborah Jennings, Potomac Electric Power Company 5. Colleen Lamont, Baltimore Gas and Electric, Baltimore, MD 6. The Plaintiffs including: Baltimore Gas and Electric Company, Delmarva Power & Light Company, General Motors Corporation, Bethlehem Steel Corporation, Potomac Electric Power Company, Maryland Chamber of Commerce 7. William Riley, Bethlehem Steel Corporation, Bethlehem, PA 8. David Carroll, Secretary, Maryland Department of the Environment Dated: June 27, 1994. Peter H. Kostmayer, Regional Administrator, Environmental Protection Agency, Region III. [FR Doc. 94-17379 Filed 7-15-94; 8:45 am] BILLING CODE 6560-50-P