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[Federal Register: July 15, 2010 (Volume 75, Number 135)]
[Proposed Rules]               
[Page 41106-41119]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15jy10-21]                         

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DELAWARE RIVER BASIN COMMISSION

18 CFR Part 410

 
Amendments to the Water Quality Regulations, Water Code and 
Comprehensive Plan to Update Water Quality Criteria for Toxic 
Pollutants in the Delaware Estuary and Extend These Criteria to 
Delaware Bay

AGENCY: Delaware River Basin Commission.

ACTION: Notice of proposed rulemaking.

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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 update many of the Commission's stream quality 
objectives (also called water quality criteria) for human health and 
aquatic life for toxic pollutants in the Delaware Estuary (DRBC Water 
Quality Zones 2 through 5) and to extend application of the criteria to 
Delaware Bay (DRBC Water Quality Zone 6). The proposed changes will 
bring the Commission's criteria for toxic pollutants into conformity 
with current guidance published by the U.S. Environmental Protection 
Agency (EPA) and provide a more consistent regulatory framework for 
managing the tidal portion of the main stem Delaware River.

DATES: The public hearing will take place on Thursday, September 23, 
2010 at 2:30 p.m. and will continue on that day until all those who 
wish to testify are afforded an opportunity to do so. Written comments 
will be accepted through 5 p.m. on Friday, October 1, 2010.

ADDRESSES: The public hearing will take place in the Goddard Room at 
the Commission's office building, located at 25 State Police Drive, 
West Trenton, New Jersey. Driving directions are available on the 
Commission's Web site, http://www.drbc.net. Please do not rely on 
Internet mapping services as they may not provide accurate directions 
to this location.
    Written comments may be submitted by e-mail to 
regs@drbc.state.nj.us by fax to Regulations at 609-883-9522; by U.S. 
Mail to Regulations c/o Commission Secretary, DRBC, P.O. Box 7360, West 
Trenton, NJ 08628-0360; or by private mail carrier to Regulations c/o 
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 and include ``Water Quality 
Criteria'' in the subject line.

FOR FURTHER INFORMATION CONTACT: The current rule and the full text of 
the proposed amendments are posted on the Commission's Web site, http://www.drbc.net, along with the report entitled ``Water Quality Criteria 
for Toxic Pollutants for Zones 2-6 of the Delaware Estuary: Basis and 
Background Document'' (DRBC, June 2010) and a set of PowerPoint slides 
presented to the Commission at the latter's public meeting on December 
9, 2009 by the chair of the Commission's Toxics Advisory Committee. 
Hard copies of these materials may be obtained for the price of postage 
by contacting Ms. Paula Schmitt at 609-883-9500, ext. 224. For 
questions about the technical basis for the rule, please contact Dr. 
Ronald MacGillivray at 609-477-7252. For queries about the rulemaking 
process, please contact Pamela Bush at 609-477-7203.

SUPPLEMENTARY INFORMATION:
    Background. At the request of the states of Delaware, New Jersey 
and Pennsylvania, which border the Delaware Estuary (hereinafter, ``the 
Estuary States''), the Commission in 1996 adopted water quality 
criteria for human health and aquatic life for Water Quality Zones 2 
through 5 (Trenton, New Jersey to Delaware Bay) of the main stem 
Delaware River and the tidal portions of its tributaries for a set of 
pollutants that included the list of Priority Pollutants published by 
the EPA in accordance with section 307 of the federal Clean Water Act 
(CWA); other pollutants for which EPA had published national 
recommended criteria in accordance with section 304(a) of the CWA; and 
additional pollutants for which one or more of the Estuary States had 
adopted criteria. See 40 CFR 401.15 (consisting of a list of 65 toxic 
pollutants, including categories of pollutants, for which effluent 
limitations are required in accordance with section 307(a)(1) of the 
Clean Water Act, 33 U.S.C. 1317(a)(1)); Appendix A of 40 CFR Part 423 
(consisting of a list of 129 ``Priority Pollutants,'' individual 
chemicals and forms of chemicals for which EPA has established national 
criteria); and 33 U.S.C. 1314(a) (providing for criteria development 
and publication by EPA).

[[Page 41107]]

    Managing an interstate waterway that is simultaneously an 
industrial and commercial hub, a source of drinking water for urban and 
suburban populations in three states and a fragile tidal ecosystem is a 
complex task. After nearly fifteen years of applying uniform human 
health and aquatic life criteria in the Delaware Estuary, the 
Commission has determined that maintaining a uniform set of criteria in 
a single regulatory code is an essential predicate to measuring and 
managing the ecological health of this vital interstate resource.
    Since 1996, EPA has updated its guidance for the development of 
human health water quality criteria and its list of national 
recommended water quality criteria for many toxic pollutants to reflect 
advances in scientific knowledge. Although the states have 
independently amended some of their criteria to conform to the current 
guidance and national recommended criteria, the Commission has not yet 
done so. The result is that many of DRBC's estuary toxics criteria are 
not currently consistent with state criteria, best available science, 
or current EPA guidance. Moreover, because the Bay and Estuary comprise 
a single tidal system in which each water quality zone is at times 
downstream and at times upstream of the adjacent zone or zones, 
regulators, dischargers and other stakeholders have determined that 
they are ill-served by excluding the Bay from application of uniform 
criteria in the Estuary. Amending the criteria at this time is 
necessary to restore consistency and fairness in the regulation of 
discharges, to facilitate coordination among state and federal programs 
and to continue to ensure that regulation of water quality in the 
shared interstate waters of the Estuary and Bay is based on the best 
science available.
    The proposed amendments to the Commission's human health and 
aquatic life criteria for the Estuary and Bay were developed by the 
Commission's standing Toxics Advisory Committee (TAC), comprised of 
representatives of the four basin states--Delaware, New Jersey, New 
York and Pennsylvania--and members of the academic, agricultural, 
public health, industrial and municipal sectors and non-governmental 
environmental community. The TAC in 2007 adopted as its objectives (a) 
evaluating recent data and current methodologies for establishing water 
quality criteria for toxic pollutants and (b) developing 
recommendations for revising the Commission's 1996 criteria to reflect 
current science and risk assessment procedures and provide for 
consistency across interstate waters. The TAC's recommendations were 
formally presented to the Commissioners at a public meeting on December 
9, 2009 by then TAC chair, Christopher S. Crocket of the Philadelphia 
Water Department. Dr. Crockett's PowerPoint presentation is available 
on the Commission's Web site.
    No Change Proposed to Criteria for PCBs and Taste and Odor. The 
amendments proposed by the Commission in this rulemaking do not include 
changes to the Commission's criteria for polychlorinated biphenyls 
(PCBs), currently listed in Table 6 (criteria for carcinogens) and 
Table 7 (criteria for systemic toxicants) of Article 3 of the 
Commission's Water Quality Regulations and Water Code, or to the 
criteria to protect the taste and odor of ingested water and fish, set 
forth in Table 4 of the same Article. The Commission initiated a 
separate rulemaking in August of 2009 to update its human health 
criteria for carcinogenic effects for PCBs in the Delaware Estuary (see 
74 FR 41100). The comment period for that proposal ended on October 19, 
2009 and the Commission has not yet approved a final rule. The current 
PCB criteria will continue in effect pending completion of the 
Commission's separate rulemaking for PCBs. The Commission's Toxics 
Advisory Committee has not yet taken up the matter of revisions to the 
criteria to protect taste and odor.
    Proposed Changes. The Commission's criteria for human health and 
aquatic life in the Delaware Estuary are listed in tables 3, 5, 6 and 7 
of section 3.30 ``Interstate Streams--Tidal'' of the Water Quality 
Regulations and Water Code. In addition to extending these criteria to 
Water Quality Zone 6, two major types of changes to the criteria are 
proposed: (1) Compounds are proposed to be added to or deleted from the 
four tables and (2) numeric criteria for many of the compounds 
currently listed in the tables are proposed to be revised. In addition, 
to assist users sub-headings have been added for categories of 
pollutants (metals, pesticides, etc.) and the sequence of the 
parameters has been modified to arrange them within these categories. 
Minor changes for consistency in spelling and capitalization are also 
proposed. The additions, deletions and criteria changes are proposed in 
order to make the list of regulated compounds consistent with current 
EPA guidance and to ensure the criteria are uniform throughout the 
shared waters. The Basis and Background Document cited above sets forth 
in detail the policies and technical assumptions on which the TAC 
relied in developing the revised criteria.
    The proposed changes to tables 3, 5, 6 and 7 are described briefly 
below:
    For Table 3, ``Maximum Contaminant Levels [``MCLs''] to be Applied 
as Human Health Stream Quality Objectives in Zones 2 and 3'':
     Antimony, Cadmium, 1,2-Dichloropropane, Ethylbenzene and 
1,2,4-Trichlorobenzene are proposed to be removed because the proposed 
updates to Table 7 (criteria for systemic toxicants) would establish 
DRBC criteria for these compounds more stringent than the MCLs.
     Nickel is proposed to be removed because the MCL for 
nickel was withdrawn by the EPA.
     Chromium (total) is proposed to be replaced by Chromium 
III for consistency with current EPA guidance.
     Current MCL values for Beryllium, Copper, Lead, alpha-BHC, 
beta-BHC, 2,4-Dichloro-phenoxyacetic acid (2,4-D), Methoxychlor, 
Toxaphene, Dioxin (2,3,7,8-TCDD), 2,4,5-Trichloro-phenoxypropionic acid 
(2,4,5-TP-Silvex), Benzene, Carbon Tetrachloride, 1,2-Dichloroethane, 
1,1-Dichloroethylene, Dichloromethane (methylene chloride), 
Tetrachloroethylene (PCE), Toluene, 1,1,1-Trichloroethane, 1,1,2-
Trichloroethane, Trichloroethylene, Vinyl Chloride, Benzo(a)pyrene, 
Asbestos, Bis(2-Ethylhexyl) Phthalate, Fluoride, Nitrate, and 
Pentachlorophenol are proposed to be added because these MCL values 
were developed by EPA after 1996 in accordance with the Safe Drinking 
Water Act, 42 U.S.C.A. Sec.  1412g-1(b).
    As to Table 5, ``Stream Quality Objectives for Toxic Pollutants for 
the Protection of Aquatic Life'', Table 6, ``Stream Quality Objectives 
for Carcinogens'' and Table 7, ``Stream Quality Objectives for Systemic 
Toxicants,'' nearly all of the freshwater and marine criteria are 
proposed to be updated to conform to current EPA guidance, resulting in 
minor changes in most instances and substantial changes in some. Most 
but not all of the proposed criteria are more stringent than the 
existing criteria.
    Proposed changes to Table 6 (criteria for carcinogens) also include 
the following:
     Beryllium and 1,1-Dichloroethene are proposed to be 
removed because EPA no longer lists these compounds as carcinogens.
     1,1,1,2-Tetrachloroethane is proposed to be removed 
because it is no longer recommended by the EPA for water quality 
criteria development.

[[Page 41108]]

     Arsenic, beta-BHC, N-Nitrosodi-N-butylamine, N-
Nitrosodiethylamine, and N-Nitrosopyrrolidine are proposed to be added 
because EPA and an Estuary State have adopted criteria for them.
     Dinitrotoluene mixture (2, 4 & 2, 6) is proposed to be 
replaced by 2, 4-Dinitrotoluene to be consistent with current EPA 
guidance.
     Hexachlorobutadiene is proposed to be moved to Table 6 
(criteria for carcinogens) from Table 7 because its toxicity is based 
on carcinogenicity.
    Proposed changes to Table 7 (criteria for systemic toxicants) also 
include the following:
     1,1,1,2-Tetrachloroethane is proposed to be removed 
because it is no longer recommended by the EPA for water quality 
criteria development.
     Chromium (Total), Methylmercury, alpha-Endosulfan, beta-
Endosulfan, Endosulfan Sulfate, Endrin Aldehyde, Benzene, 2-
Chloronaphthalene, Cyanide, 2-Methyl-4,6-dinitrophenol, 
Pentachlorobenzene, 1,2,4,5-Tetrachloro-benzene, 2,4,5-Trichlorophenol, 
and Vinyl Chloride are proposed to be added to Table 7 because EPA and 
an Estuary State adopted criteria for them.
     DDT is proposed to be replaced with ``DDT and Metabolites 
(DDD and DDE)'' to conform to current EPA guidance relating to the 
systemic toxicity of DDT and its degradation products, DDD and DDE. 
DDT, DDD and DDE, which are also deemed to be carcinogens, continue to 
be listed individually in Table 6.
     Hexachlorobutadiene has been moved from Table 7 to Table 6 
because its toxicity is based on carcinogenicity.
     The column identifying EPA classifications is proposed to 
be removed from Table 7 because this information is not needed for 
application of the criteria for systemic toxicants. Detailed 
information on derivation of the criteria, including EPA 
classifications, is presented in the Basis and Background Document 
posted on DRBC's Web site.
    Extension of Criteria to Delaware Bay (Zone 6). A new section 
3.10.6C.11. is proposed to be added to make tables 3 through 7 of 
Article 3 of the Water Quality Regulations and Water Code applicable to 
Water Quality Zone 6, Delaware Bay.
    It is proposed to amend the Water Quality Regulations and Water 
Code as follows:

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    Dated: July 8, 2010.
Pamela M. Bush,
Commission Secretary.
[FR Doc. 2010-17118 Filed 7-14-10; 8:45 am]
BILLING CODE 6360-01-P
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