[Federal Register Volume 69, Number 184 (Thursday, September 23, 2004)]
[Notices]
[Pages 57010-57011]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21351]


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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 [email protected]; 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