[Federal Register Volume 74, Number 156 (Friday, August 14, 2009)]
[Proposed Rules]
[Pages 41100-41101]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-19028]



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DELAWARE RIVER BASIN COMMISSION

18 CFR Part 410


Proposed Amendments to the Water Quality Regulations, Water Code 
and Comprehensive Plan To Revise the Human Health Water Quality 
Criteria for PCBs in the Delaware Estuary, To Apply the PCB Human 
Health Water Quality Criterion to Delaware Bay, and To Provide for the 
Use of Compliance Schedules To Implement Stream Quality Objectives 
Established by the Commission; Proposed Rulemaking and Public Hearing

AGENCY: Delaware River Basin Commission.

ACTION: Proposed rule; notice of public hearing.

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SUMMARY: The Delaware River Basin Commission (DRBC or ``Commission'') 
will hold a public hearing to receive comments on proposed amendments 
to the Commission's Water Quality Regulations, Water Code and 
Comprehensive Plan to revise the human health water quality criteria 
for polychlorinated biphenyls (PCBs) in the Delaware Estuary (DRBC 
Water Quality Management Zones 2 through 5), extend application of the 
DRBC's PCB human health water quality criterion to Delaware Bay (DRBC 
Water Quality Zone 6) and provide for the use of compliance schedules 
where implementation of a stream quality objective established by the 
Commission requires a reduction of the pollutant concentration or 
loading of a discharge to Basin waters.

DATES: Written comments on the proposed revised human health water 
quality criterion for PCBs and accompanying implementation plan will be 
accepted and must be received by 5 p.m. on Monday, October 19, 2009. 
The public hearing will be held at 1:30 p.m. on Thursday, October 8, 
2009. The hearing will continue until all those wishing to testify have 
had an opportunity to do so. Two informational meetings will be held in 
late September, 2009. The informational meeting dates will be posted on 
the Commission's Web site, http://DRBC.net, on or before August 17, 
2009.
    For more information regarding the procedures for the written 
comments and hearing, see SUPPLEMENTARY INFORMATION.

ADDRESSES: The public hearing will be held at the Commission's office 
building located at 25 State Police Drive, West Trenton, NJ. As 
Internet mapping tools are inaccurate for this location, please use the 
driving directions posted on the Commission's Web site. The locations 
of the two informational meetings will be posted on the Commission's 
Web site, http://DRBC.net, on or before August 17, 2009.

SUPPLEMENTARY INFORMATION: Persons wishing to testify at the hearing 
are asked to register in advance by phoning Ms. Paula Schmitt at 609-
883-9500, ext. 224. Written comments may be submitted as follows: If by 
e-mail, to [email protected]; if by fax, to Commission 
Secretary at 609-883-9522; if by U.S. Mail, to Commission Secretary, 
DRBC, P.O. Box 7360, West Trenton, NJ 08628-0360; or if by overnight 
mail, to Commission Secretary, DRBC, 25 State Police Drive, West 
Trenton, NJ 08628-0360. In all cases, please include the commenter's 
name, address and affiliation, if any, in the comment document and 
``PCB Rulemaking'' in the subject line.
    Background. The current DRBC water quality criteria for PCBs in the 
Delaware Estuary were established in 1996. They pre-date the collection 
of site-specific bioaccumulation data for the Delaware Estuary and Bay 
and site-specific fish-consumption data for Zones 2 through 4 that are 
relevant to the development of human health water quality criteria. 
They are also inconsistent with current U.S. Environmental Protection 
Agency (EPA) guidance for the development of such criteria, and they 
vary by water quality zone. One consequence of the current varied 
criteria is that in order to ensure that the current water quality 
criterion of 7.9 picograms per liter in the downstream portion of Zone 
5 can be achieved, the allowable PCB loading to Zones 2 and 3, where 
the applicable criterion currently is 44.4 picograms per liter, must be 
even lower than would be required if the proposed uniform criterion 
were in place. DRBC currently has no PCB water quality criteria for the 
Delaware Bay, a shared interstate water for which the States of New 
Jersey and Delaware have established a criterion of 64 picograms per 
liter.
    By Resolution No. 2003-11 on March 19, 2003 the Commission directed 
its executive director to initiate rulemaking on a proposal to revise 
the Commission's human health water quality criteria, including those 
for PCBs, to reflect site-specific data on fish consumption, site-
specific bioaccumulation factors, and current EPA guidance on 
development of human health criteria. Rulemaking was delayed, however, 
pending the completion of an effort by the Commission's Toxics Advisory 
Committee (TAC) to revise the criterion for PCBs and a separate effort 
to develop recommendations for achieving reductions in PCB loadings to 
the river that could be issued in conjunction with the criterion.
    Rigorously applying the most current available data and 
methodology, including site-specific data on fish consumption, site-
specific bioaccumulation factors, and the current EPA methodology for 
the development of human health criteria for toxic pollutants (see 
United States Environmental Protection Agency, Methodology for Deriving 
Ambient Water Quality Criteria for the Protection of Human Health 
(2000), EPA-822-B-00-004, October 2000), the TAC in July 2005 completed 
development of a revised human health water quality criterion for PCBs 
for the Delaware Estuary and Bay of 16 picograms per liter. 
Accordingly, by Resolution No. 2005-19 on December 7, 2005, the 
Commission directed the executive director to proceed with rulemaking 
to establish the new criterion in DRBC Water Quality Zones 2 through 6.
    Elevated levels of PCBs in the tissues of fish caught in the 
Delaware Estuary and Bay currently prevent the attainment of the 
designated uses ``maintenance and propagation of resident fish and 
other aquatic life'' (Zone 2, Zone 5 below River Mile 70 and Zone 6), 
``passage of anadromous fish'' (Zones 2 through 6), and ``maintenance 
of resident fish and other aquatic life'' (Zones 3, 4 and 5 above River 
Mile 70). (See DRBC Water Quality Regulations (WQR), Art. 3, sec's 
3.30.2 B.2, 3.30.3 B.2, 3.30.4 B.2, 3.30.5 B.2 and 3.30.6 B.2 for Zones 
2 through 6, respectively). These uses are commonly referred to 
collectively as ``fishable'' and are deemed to include human 
consumption of resident fish. Accordingly, these waters are listed by 
the bordering States as impaired under Section 303(d) of the Clean 
Water Act (CWA), which requires that a total maximum daily load (TMDL) 
be established for them. A TMDL expresses the maximum amount of a 
pollutant that a water body can receive and still attain water quality 
standards. Once the load is calculated, it is allocated to all sources 
in the watershed--point and nonpoint--which may not discharge loads in 
excess of the share allocated to them in order to achieve and maintain 
the water quality standards. EPA established TMDLs for PCBs in December 
of 2003 for the Delaware Estuary and in December of 2006 for the 
Delaware Bay (``Stage 1 TMDLs''). It is anticipated that EPA will 
establish revised TMDLs (``Stage 2 TMDLs'') for the Delaware Estuary 
and Bay to attain

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the revised PCB human health water quality criterion if approved.
    When the Commission directed the executive director in 2005 to 
initiate rulemaking on updated PCB criteria, in accordance with a 
recommendation of the TAC, it also asked her to work with State 
regulatory agencies and EPA (collectively, ``co-regulators'') to 
develop recommendations for implementing criteria for bioaccumulative 
toxic pollutants such as PCBs that would be ``consistent with the 
existing Clean Water Act National Pollutant Discharge Elimination 
System (NPDES) framework while * * * reflecting principles of adaptive 
management'' and to solicit public comment on these recommendations 
(DRBC Resolution No. 2005-19 par's. 3-4). It is expected that Stage 2 
TMDLs issued by EPA will include as an appendix a TMDL implementation 
plan developed by DRBC and its co-regulators. The implementation plan, 
which will take the form of a guidance document, will explain how the 
load allocations assigned by the TMDL to nonpoint sources and the 
wasteload allocations assigned to point sources can be achieved 
consistent with the Clean Water Act and principles of adaptive 
management.
    According to the 2003 and 2006 TMDLs, actual loadings of PCBs to 
the Delaware Estuary and Bay respectively are in some cases orders of 
magnitude above those needed to allow attainment of the designated use. 
The EPA's 2003 Delaware Estuary TMDL report projects that ``due to the 
scope and complexity of the problem that has been defined through these 
TMDLs, achieving the estuary water quality standards for PCBs will take 
decades.'' (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, p. xiii). As 
required by Section 4.30.9 of the DRBC Water Quality Regulations, 
adopted by DRBC Resolution No. 2005-9 on May 18, 2005, the largest 
point source dischargers of PCBs to the Delaware Estuary and Bay have 
already undertaken pollutant minimization plans designed to locate the 
sources of PCBs entering their wastewater and stormwater systems and 
contain or remove them. The TMDL implementation plan developed by the 
co-regulators recognizes that many point source dischargers already 
have reduced their PCB loadings in an effort to meet their TMDL 
wasteload allocations assigned by the Stage 1 TMDLs. Some point source 
dischargers are expected to achieve their required reductions soon; 
however, others will require an extended period of time, including in 
some instances decades, to achieve the PCB loading reductions needed to 
meet their assigned wasteload allocations. The implementation plan 
developed by the co-regulators will accommodate these dischargers 
through the use of compliance schedules consistent with the Clean Water 
Act and applicable regulations. It is understood that those dischargers 
who cannot achieve their wasteload allocations within a single five-
year permit cycle notwithstanding good faith efforts to do so as soon 
as possible will be given additional time, even if this requires 
compliance schedules extending well beyond a single five-year permit 
cycle.
    Subjects on which Comment is Expressly Solicited. Public comment is 
solicited on all aspects of the proposed rule. Without limiting the 
foregoing, the Commission has identified certain subject matters on 
which it expressly seeks comment. First, comments are solicited on the 
assumptions applied in developing the criterion, including the 
appropriate cancer risk level. (See DRBC Resolution No. 2005-19, par. 
2). In accordance with current DRBC regulations, that level is 
10-6, or one additional cancer in every one million humans 
exposed for 70 years. (See WQR, Sec.  3.10.3 D.4). The assumptions 
applied in developing the revised PCB criterion of 16 picograms per 
liter are set forth in a basis and background document that is 
available on the DRBC Web site, http://DRBC.net. The second area on 
which the Commission expressly seeks comment is best approaches for 
implementing water quality criteria for bioaccumulative pollutants 
consistent with the NPDES framework and principles of adaptive 
management. (See DRBC Resolution No. 2005-19, par. 4). The third is the 
implementation plan developed by the co-regulators, which is posted on 
the Commission's Web site, http://DRBC.net.

FOR FURTHER INFORMATION CONTACT: The text of the proposed rule, 
relevant DRBC resolutions, the basis and background document and the 
co-regulators' implementation plan for the proposed criterion will be 
available on the DRBC Web site, http://DRBC.net, on or before August 
17, 2009. For further information, please contact Commission Secretary 
Pamela M. Bush, 609-883-9500 ext. 203.

    Dated: August 4, 2009.
Pamela M. Bush,
Commission Secretary.
[FR Doc. E9-19028 Filed 8-13-09; 8:45 am]
BILLING CODE 6360-01-P