August 16, 2002

Mr. Bradley

M. Campbell Commissioner New Jersey

Department of Environmental Protection CN 402 Trenton, New Jersey

08625
- 0402 Dear Commissioner Campbell: The U.S. Environmental Protection Agency (EPA) has completed its review of the revisions to the New Jersey

Surface Water Quality

Standards (NJSWQS) under New Jersey Administrative Code (N.J.A.C.) 7:9B, submitted by the New Jersey

Department of Environmental Protection (NJDEP) on March 1, 2002. These revisions were approved by th e New Jersey

Attorney General and were adopted by

the State and became effective on January 22, 2002. Submitted with the revised NJSWQS were the following: 1. the certification letter from the Deputy Attorney General Darren R. Epply (January 24, 2002); and, 2. the applicable notices from the New Jersey Register (dated December 18, 2000 and January

22, 2002). Under Section 303(c) of the Clean Water Act (CWA), 33 U.S.C. ' 1313(c), states are to submit revised or new water quality standards to EPA for approval no less frequently than every

three ye ars. Federal regulations at 40 C.F.R. ' ' 131.21 and 131.22 implement these requirements. Ina February

3, 1998 letter (enclosed) from Ms. Kathleen C. Callahan, Director, Division of Environmental Planning and Prote ction, to Mr. Robert Tudor, Administrator Office of Environmental Planning, EPA acknowledged that New Jersey would use a two phase process for the review and revision of the NJSWQS to meet the State = s statutory A sunset date @ of April 1998 for the expiratio n of its water quality standards. However, EPA stated that it would take action only when New Jersey

completed all applicable revisions to the NJSWQS resulting from both phases of the State process. During A Phase 1, @ New Jersey completed and adopted revi sions to its water quality

standards regulations on April 17, 1998. The April 17, 1998 A Phase 1" rulemaking consisted of re
- adopting the existing NJSWQS with changes for consistency with the New Jersey

Pollutant Discharge Elimination Sy stem (NJPDES) Rules , which were adopted by the State on February

5, 1997. These revisions were relatively minor and non
- controversial. Aspart of the A Phase 2" review process, NJDEP held two public hearings to receive public input and

comment on the proposed revisions to the NJSWQS on January 10 and January

18, 2001. The January 22, 2002 A Phase 2" rulemaking resulted in more substantial revisions to the policies and criteria included in the NJSWQS. This letter constitutes EPA = s action on both phases of the revisions to the NJSWQS. EPA considers the adoption of revisions to N.J.A.C. 7:9B, along with the public review and comment process, to constitute the State = s triennial review of water quality standards. Based on our review, the procedures of both phases of New Jer sey = s process are consistent with, and satisfy the procedural requirements of 40 C.F.R. ' 131.20. The revisions to the NJSWQS enhance and improve the NJSWQS program, including:

$ the additions and/or revisions of several definitions, including some new definitions to be consistent with the NJPDES regulations (N.J.A.C. 7:9B
- 1.4) which are approved as being consistent with the requirements under 40 C.F.R. ' 131.3;

$ inclusion of applicable technical, administrative, and/or editorial corrections or clarifications to existing definitions and provisions which are approved as being consistent with the requirements under 40 C.F.R. ' 131.3;

$ deletion of certain NJPDES
- based provisions or terms because they are either out of date, or have been adopted into the NJPD ES regulations, and therefore, no longer need to remain in the NJSWQS, which is approved as being consistent with the requirements under 40 C.F.R. ' 131.3;

$ the addition of a provision stating that it is the State = s policy to restore, maintain and preserv e all freshwaters as potential sources of potable water supplies. This proposed policy provides that all fresh surface waters should be protected as potential sources of public water supplies to provide adequate, clean potable water for the present and future (N.J.A.C. 7:9B
- 1.5(a)), which is approved as being consistent with the requirements under 40 C.F.R. ' 131.10(a);

$ the revision of the harmonic mean flow for toxic pollutants with a bioaccumulation/ bioconcentration factor greater than 200 L/kg and fo r bromodichloromethane, to a design flow which is exceeded 75% of the time for the appropriate A period of record @ as determined by

the United States Geological Survey (USGS). (N.J.A.C. 7:9B
- 1.5(c)(2)), which is approved as being consistent with the require ments under 40 C.F.R. ' 131.13;

$ the adoption of the conversion factors published by EPA (60 Fed. Reg. 22229; May 4, 1995) as metal translators, unless a site
- specific metal translator is developed through a site
- specific water quality study or if a meta l translator is developed as part of a study through the watershed process or through a TMDL process which undergoes EPA review and approval (N.J.A.C. 7:9B
- 1.5(c)(6)), which is approved as being consistent with the requirements under 40 C.F.R. ' 131.11(b)( 1)(ii);$ revisions to the State = s nutrient policies to specify that nutrients will not be permitted in concentrations that cause: (1) abnormal diurnal fluctuations in dissolved oxy gen or pH; or (2) changes to the composition of aquatic ecosy stems, in addi tion to the existing conditions that are not allowed in freshwaters except due to natural conditions (N.J.A.C. 7:9B
- 1.5(g)), which are approved as being consistent with the requirements under 40 C.F.R. ' 131.11(b)(2);

$ revisions to the State = s mixing zon e policies and their implementation procedures to clarify the scope of the policy

and provide specificity

to ensure uniform implementation (N.J.A.C. 7:9B
- 1.5(h)), which are approved as being consistent with the requirements under 40 C.F.R. ' 131.13;

$ revi sions to the State = s phosphorus criteria to acknowledge that criteria may be developed through the watershed process (N.J.A.C. 7:9B
- 1.14(c)5), which are approved as being consistent with the requirements under 40 C.F.R. ' 131.6(c) and, 40 C.F.R. ' 131.11(b );

$ deletion of the portion of the State = s criteria for total dissolved solids (TDS) specifying changes in TDS levels up to 133% shall be deemed to be in compliance with the TDS criteria, and the addition of the use of toxicity tests to confirm whether the re are any adverse effects (N.J.A.C. 7:9B
- 1.14(c)8), which are approved as being consistent with the requirements under 40 C.F.R. ' 131.6(c) and, 40 C.F.R. ' 131.11(b);

$ adoption of ammonia criteria which are specifically developed to protect the uses of the respective surface water classifications and are based on toxicity data on New Jersey
specific species (N.J.A.C. 7:9B
- 1.14(c)13vi), which are approved as being consistent with the requirements under 40 C.F.R. ' 131.6(c) and, 40 C.F.R. ' 131.11(b)(1)(ii );

$ the revision of the State = s human health criteria for PCBs consistent with EPA = s final rule entitled, Water Quality

Standards; Establishment of Numeric Criteria for Priority Toxic Pollutants; States' Compliance
-- Revision of Poly chlorinated Biphenyls (P CBs) Criteria; Final Rule, which was published in the Federal Register on November 9, 1999 (64 FR 61182) (N.J.A.C. 7:9B
- 1.14(c)13xxxii), which is approved as being consistent with the requirements under 40 C.F.R. ' 131.6(c) and, 40 C.F.R. ' 131.11(b)(1)(i) ; and,

$ revisions to several water body classifications based on trout status (N.J.A.C. 7:9B
- 1.15), which are approved as being consistent with the requirements under 40 C.F.R. ' 131.10(a)
- (e). EPA supports New Jersey = s use of a metal criterion = s c onversion factor as the metal translator to express the dissolved aquatic life criterion in the equivalent total recoverable form. When developing an effluent limit under the NJPDES program (expressed as a total recoverable concentration) to meet the disso lved metal criterion, a translator is required. Use of the criterion = s conversion factor, as discussed in guidance (EPA 823
- B
- 96
- 007), provides an environmentally

conservative translator. When monitoring for compliance with the criteria,however, NJDEP s hould sample for and analy ze the dissolved form of the metal in the ambient environment and directly

compare those sampling results with the dissolved
- based aquatic criteria. It would not be appropriate to determine compliance by using the metal translato r to compare the total recoverable concentration measured in the ambient environment with the dissolved aquatic life criterion developed under laboratory conditions. I am approving the State = s adoption of the marine acute and chronic aquatic life criteria for lead, and also approving, for now, NJDEP = s freshwater acute and chronic criteria for lead as non
hardness dependent values. At hardness levels below 200 mg/L CaCO 3 , NJDEP = s fresh water criteria appear less protective than EPA = s. However, direct comparisons are not possible because EPA = s fresh water criteria are hardness dependent. EPA is in the process of updating its aquatic life criteria for lead and may revise the Agency = s national recommended water quality criteria. EPA conducted a literature r eview for lead in 1997 and generated a draft document. EPA previously provided NJDEP a copy

of this draft document, as well as and some unpublished data that was received in response to the Agency = s 1999 solicitation of data from the public (64 FR 58409, October 29,1999). New acute data considered acceptable for use is available for C. dubia (Bitton et al. 1993 and Diamond et al. 1997). New acceptable saltwater acute and chronic data along with a new acute to chronic ratio (ACR) is available for the cope pod, Eurytemora affinis , (Hall et al 1997 Unpublished report). Additional saltwater acute data are also available in the draft document for amphipods, surf clams, bay scallops and y ellow crabs, but not all have been reviewed y et by EPA. Once EPA publi shes its updated national recommended aquatic life water quality criteria for lead, New Jersey

should review its water quality criteria to determine if they are still protective of aquatic life based on the most recent science. EPA remains available to pr ovide NJDEP with any technical support necessary to assist the State in future revisions to its lead criteria. As y ou are aware, the National Toxic Rule (NTR) (57 FR 60848) criteria still apply in New Jersey for PCBs and lead criteria values for Clean Water Act programs. We will begin the process of withdrawing New Jersey from the NTR for PCBs and for lead during the next round of withdrawals from the NTR. By this letter, Iam pleased to approve the revisions to the NJSWQS pursuant to Section 303(c) of the CWA, subject to the results of consultation under section 7(a)(2) of the Endangered Species Act. EPA initiated consultation with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (Services) on July 18, 2002, under Section 7 (a)(2) of the Endangered Species Act. Section 7(a)(2) requires that federal agencies, in consultation with the Services, insure that their actions are not likely to jeopardize the existence of federally listed species or result in the adverse modification of designated critical habitat of such species. Upon completion of consultation, EPA will notify the State of the results.Itis my

understanding, consistent with the State = s commitment in the SFY = 02
- 04 New Jersey Performance Partnership Agreement, that NJDEP will soon be proposing State adoption of revisions to the New Jersey = s antidegradation policy , including a statement to provide that the maintenance, migration, protection, and propagation of federally listed threatened and endangered species ar e considered existing uses and will be maintained and protected. At the same time NJDEP will also propose State adoption of the New Jersey
- specific wildlife criteria for PCBs, DDT and mercury that were jointly

developed by

NJDEP, FWS and EPA to protect fe derally listed endangered and threatened species, including the bald eagle and peregrine falcon. EPA Region I I looks forward to continuing to work with NJDEP to further improve New Jersey 's Surface Water Quality

Standards. I f you have any questions, plea se call me at (212) 637
- 5000 or have your staff contact Mr. Walter Mugdan, Director, Division of Environmental Planning and Protection at (212) 637
- 3725. Sincerely , William J. Muszy

nski Deputy Regional Administrator Enclosure cc: Brenda Jogan, NJDEP Steven Lubow, NJDEP Fred Leutner, OST
- SHPD Marjorie Pitts, OST
- SHPD bcc: Mario Del Vicario, CEPB Felix L ocicero, CEPB
- F&ET Way ne Jackson, CEPB
- F&ET Dick Weisberg, ORC
- WGGL **G: \**  **user \**  **share \**  **swqb \**  **tes \** **wqs \**  **nj \**  **appr ove.nj.wpd**