[Federal Register Volume 66, Number 195 (Tuesday, October 9, 2001)]
[Notices]
[Pages 51430-51432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25258]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-7076-1]


Clean Water Act (CWA) 303(d): Addition of Five Waters to the 
State of New Jersey's 1998 Section 303(d) List

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice.

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SUMMARY: EPA today notices its final decision to disapprove the State 
of New Jersey's omission of five waters on its 1998 Clean Water Act 
Section 303(d) list. EPA is adding the following five waters to New 
Jersey's 1998 Section 303(d) list for toxic pollutant impairment: 
Ackerman's Creek, Berry's Creek, Birch Swamp Brook, Capoolony Creek, 
and Edmund's Creek.

DATES: Date of decision was September 24, 2001.

ADDRESSES: Copies of the relevant supporting documents may be obtained 
by writing to Ms. Rosella O'Connor, U.S. Environmental Protection 
Agency Region 2, 290 Broadway, 24th Floor, New York, New York 10006-
1866, [email protected], or by calling (212) 637-3823.
    The administrative record containing background technical 
information is on file and may be inspected at the U.S. EPA, Region 2 
office between the hours of 8 a.m. and 5:30 p.m., Monday through 
Friday, except holidays. Arrangements to examine the administrative 
record may be made by contacting Ms. Rosella O'Connor.

FOR FURTHER INFORMATION CONTACT: Ms. Rosella O'Connor, telephone number 
(212) 637-3823.

SUPPLEMENTARY INFORMATION:

I. Background
II. Final Action
III. Summary of Comments Received and Agency Responses

I. Background

    Section 303(d) of the Clean Water Act (CWA) and EPA's implementing 
regulations at 40 CFR 130.7, require states and territories to: Develop 
lists of water-quality limited waters still requiring Total Maximum 
Daily Loads (TMDLs); establish a priority ranking of these waters; 
identify pollutants causing their impairment; and identify waters 
targeted for TMDL development over the next two (2) years. TMDLs 
include a determination of pollutant loadings compatible with 
achievement of applicable state water quality standards. State 303(d) 
lists and TMDLs are submitted to the EPA for approval or disapproval.

[[Page 51431]]

    Under 40 CFR 130.7(b)(1), water quality-limited segments are not 
required to be listed on a State's Section 303(d) list where: Effluent 
limitations required by the CWA; more stringent effluent limitations 
required by State, local, or federal authority; or, other pollution 
control requirements required by State, local or federal authority, are 
stringent enough to implement applicable water quality standards. 
Waters may be removed from the 303(d) list if any of the listed control 
actions will result in meeting water quality standards by the next 
listing cycle. If water quality standards are not expected to be 
achieved by the next listing cycle, through implementation of other 
required controls, it is appropriate for waters to remain on the 303(d) 
list to ensure that implementation of the required controls and 
progress towards compliance with applicable water quality standards 
occur.
    On September 15, 1998, the State of New Jersey (``New Jersey'') 
submitted its 1998 CWA Section 303(d) list to EPA for review and 
approval. On October 8, 1998, EPA approved New Jersey's CWA Section 
303(d) list. This list included approximately 1,048 water-quality 
limited segments. This list was challenged in a lawsuit commenced in 
the Federal District Court for the District of New Jersey, entitled 
American Littoral Society and New Jersey Public Interest Research Group 
v. United States Environmental Protection Agency, et al. (Civil Action 
No. 96-339 (MLC)). In a preliminary decision and order issued in this 
case in December 2000, the Court directed EPA to provide for the 
inclusion on New Jersey's 303(d) list the five following waters: 
Ackerman's Creek; Berry's Creek; Birch Swamp Brook; Capoolony Creek; 
and Edmund's Creek. These five waters should have been included on New 
Jersey's list due to impairment by toxic pollutants, but were 
inadvertently omitted.
    By a second order dated July 19, 2001, the Court directed that:

(EPA) shall have 60 days from the entry of this Order to submit to 
the Federal Register for publication a final notice adding 
Ackerman's Creek, Berry's Creek, Birch Swamp Brook, Capoolony Creek, 
and Edmunds Creek to the Clean Water Act section 303(d) list for the 
State of New Jersey. Prior to submission of that final notice to the 
Federal Register, [EPA] may submit to the Federal Register for 
publication a notice proposing the addition of those waters to the 
303(d) list and may seek public comment concerning the proposed 
addition.

This order was entered on July 27, 2001.

    In preparing its 1998 CWA Section 303(d) list, New Jersey relied 
upon several sources of information, including the EPA approved CWA 
Section 304(l) lists. Under CWA Section 304(l), States were required to 
submit to EPA several lists, including, pursuant to Section 
304(l)(A)(i)--a list of water bodies the State does not expect to 
achieve State water quality standards due to discharges of toxic 
pollutants from point or nonpoint sources (the ``mini list''). In 1993, 
EPA approved New Jersey's CWA Section 304(l) lists. A notice announcing 
EPA's final approval of New Jersey's 304(l) lists, including New 
Jersey's mini list, was published in the Federal Register on November 
2, 1993 (58 FR 58548).
    The five waters that EPA is adding--Ackerman's Creek, Berry's 
Creek, Birch Swamp Brook, Capoolony Creek, and Edmund's Creek 
(sometimes referred to below as the ``five omitted waters'')--originate 
from New Jersey's CWA Section 304(l) mini list. With the exception of 
these five waters and the Singac River, discussed below, the remaining 
waters listed on the CWA Section 304(l) mini list were included on New 
Jersey's 1998 CWA Section 303(d) list.
    The five omitted waters were found to be potentially impaired due 
to contamination from adjacent hazardous waste sites listed on the 
National Priority List.
    During the course of the litigation in early 2001, EPA determined 
that a sixth water, designated by New Jersey on its mini list as the 
Singac River, had also been inadvertently omitted from New Jersey's 
303(d) list, despite the fact that New Jersey had previously determined 
that it was impaired due to violations of whole effluent toxicity 
requirements. However, based on comments received from New Jersey 
during the comment period on this proposed action, EPA has determined 
that this water does not require listing under Section 303(d).

II. Final Action

    EPA is disapproving New Jersey's failure to list the five omitted 
waters on its 1998 CWA Section 303(d) list, and is adding these five 
waters (shown in Table 1) to New Jersey's 1998 Section 303(d) list. The 
pollutants potentially causing impairments of the listed waters are 
identified in Table 1. The proposed notice included zinc as a pollutant 
of concern for the Birch Swamp Brook. As a result of additional 
information received from New Jersey during the comment period, zinc 
was removed from the list of pollutants of concern.

  Table 1.--List of Five Waters Added to New Jersey's 1998 CWA Section
                               303(d) List
------------------------------------------------------------------------
            Waterbody                  Reach No.         Pollutant(s)
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Ackerman's Creek................  02030103..........  Chromium, mercury,
                                                       PCBs, chlorinated
                                                       benzenes.
Berry's Creek...................  02030103034.......  Mercury, other
                                                       metals.
Birch Swamp Brook...............  02030104..........  Arsenic, lead,
                                                       copper, PCBs.
Capoolony Creek.................  02030105..........  DDT.
Edmund's Creek..................  02030105..........  PCBs.
------------------------------------------------------------------------

    CWA Section 303(d)(1) and EPA's regulations at 40 CFR 130.7(b)(4) 
require States to prioritize waters on their Section 303(d) lists for 
TMDL development. EPA has assigned a ranking of low priority to the 
five omitted waters. A low priority is appropriate because of the 
control actions that are currently underway for the five omitted 
waters, all of which have been listed due to potential contamination 
from adjacent hazardous waste sites. EPA expects that these waters 
should be restored upon implementation of the remediation plans for the 
sites impacting the waters. EPA believes that any TMDL that is 
developed for these waters will rely on the remediation plans, required 
under 40 CFR 300.430 for the hazardous waste sites. EPA expects that 
New Jersey will track the progress of remediation plans for the 
relevant hazardous sites and the water quality of the above five 
waters.

III. Summary of Comments Received and Agency Responses

    EPA noticed its intent to disapprove the omission of the five 
omitted waters and the Singac River on August 2, 2001 (66 FR 40282). 
The public comment period closed on August 17, 2001. During the comment 
period, EPA received comments from the American Littoral Society, 
Delaware River Keeper, New Jersey Public Interest Group Citizen Lobby, 
and New Jersey. A

[[Page 51432]]

summary of the comments received and EPA's responses follow.
    Comment (American Littoral Society, Delaware River Keeper, and New 
Jersey Public Interest Group Citizen Lobby): The Court in American 
Littoral Society and New Jersey Public Interest Research Group v. 
United States Environmental Protection Agency, et al. (Civil Action No. 
96-339 (MLC)) ordered EPA to add ``six'' waters to New Jersey's Section 
303(d) list. EPA should disapprove New Jersey's 1998 Section 303(d) 
list because it is lacking these waters and promulgate a 303(d) list 
for New Jersey that includes the ``six'' waters.
    EPA Response: The Court's December 2000 and July 2001 orders 
addressed only the five omitted waters as follows: Ackerman's Creek; 
Berry's Creek; Birch Swamp Brook; Capoolony Creek; and Edmund's Creek. 
The action EPA is taking today adds these five waters to New Jersey 
Section 303(d) list, thereby satisfying the Court's orders. A sixth 
water, designated by New Jersey on its mini list as the Singac River, 
was identified by EPA in early 2001 as an additional water that EPA 
then believed should be added to the 303(d) list. However, based on 
comments received from New Jersey, EPA has determined that this water 
should not be listed on New Jersey's 303(d) list.\1\
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    \1\ In its comments, New Jersey informed EPA that its original 
designation of this water as the Singac River was an error and that 
the relevant water's correct name is the Singac Brook. EPA has 
confirmed this, as will be discussed in more detail below, and all 
subsequent references to this water will be to the Singac Brook.
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    Comment (New Jersey): Zinc should not be listed as a contaminant of 
concern for Birch Swamp Brook.
    EPA Response: EPA has reviewed the Remedial Investigation Report 
associated with the adjacent hazardous waste site and agrees that zinc 
has not been identified as a pollutant of concern.
    Comment (New Jersey): Surface water quality data associated with 
the hazardous waste site adjacent to Capoloony Creek indicate that the 
site has no impact on surface water quality. EPA issued a Record of 
Decision for the site in 1990 which states that no volatile organics or 
pesticides were detected in surface water and that trace amounts of 
inorganics were detected. Fish samples collected from the stream showed 
detectable levels of DDT and other site-related contaminants. Fish 
samples from other reaches of Capoloony Creek have shown similar levels 
of these contaminants. Capoloony Creek should not be added to New 
Jersey's 1998 Section 303(d) list.
    EPA Response: Data indicate that fish samples are contaminated with 
DDT and other contaminants. It is not clear whether the source of these 
contaminants is the hazardous waste site or other unidentified sources. 
However, data do not indicate that designated uses and water quality 
standards have been achieved. Therefore, EPA disagrees that Capoloony 
Creek should not be listed and will include the Creek on New Jersey's 
1998 Section 303(d) list. New Jersey may seek to remove Capoloony Creek 
from its 303(d) list at the time it is required to submit its next 
303(d) list to EPA, provided, however, that New Jersey submit data and 
information fully justifying such a delisting.\2\
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    \2\ The states are currently required to submit their next 
Section 303(d) list by April 1, 2002, but EPA has proposed to extend 
this date until October 1, 2002 (66 FR 41817, 8/9/01).
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    Comment (New Jersey): The Singac Brook was listed due to 
noncompliance with whole effluent toxicity limits in a permit issued to 
the Township of Wayne's Mountain View Water Pollution Control Facility. 
Whole effluent toxicity test results between 1998 and 2001 indicate 
that the permit limit was exceeded one time. Since a whole effluent 
toxicity test limit is in effect in the permit and the facility is 
expected to comply with the limit, Singac Brook should not be listed.
    EPA Response: EPA concurs that the Singac Brook should not be 
listed on New Jersey's 1998 Section 303(d) list. This waterbody was 
originally identified as requiring controls for whole effluent 
toxicity, as a consequence of the discharge from the Township of 
Wayne's Mountain View Water Pollution Control Facility (the ``Wayne 
Mountain facility'').\3\ The permit issued to the Wayne Mountain 
facility includes a limit for whole effluent toxicity. Under (40 CFR 
130.7(b)(1)(ii)), waters for which more stringent effluent limitations 
required by State or local authority are in effect are not required to 
be listed. Therefore, pursuant to 40 CFR 130.7(b)(1)(ii), the permit is 
a pollution control requirement, required by New Jersey, that is 
sufficiently stringent to implement the applicable water quality 
standard, and there is no longer any basis to list the Singac Brook for 
whole effluent toxicity.'' \4\
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    \3\ As noted above (footnote 1) New Jersey originally designated 
this water in its mini list as the Singac River. In its comments, 
New Jersey indicated that this was a misnomer and that the correct 
name for this water was the Singac Brook. To verify this, EPA 
reviewed its New Jersey Pollutant Discharge Elimination System data 
base, which indicates that the Wayne Mountain facility discharges to 
the Singac Brook, rather than the Singac River. Consequently, the 
relevant receptor waterbody is in fact the Singac Brook.
    \4\ In addition to the above comments, New Jersey submitted some 
general policy comments, and some technical comments with specific 
reference to Ackerman's Creek, Berry's Creek and Edmund's Creek. 
These comments, however, posed no objections to the listing of these 
three waters, the low priority ranking assigned to them by EPA, or 
to the pollutants for which they were proposed to be listed. 
Consequently, EPA believes that there is no reason to respond to 
these additional comments in this Federal Register notice. It is 
EPA's intent, however, to address the issues raised by these policy 
and technical comments directly with New Jersey in the immediate 
future.

    Dated: September 24, 2001.
William Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 01-25258 Filed 10-5-01; 8:45 am]
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