PROPOSED RULEMAKING

[25 PA CODE CH. 901]

Amendment of the Water Quality Regulations, Water Code and Comprehensive Plan to Establish Pollutant Minimization Plan Requirements for Point and Nonpoint Source Discharges of Toxic Pollutants

[34 Pa.B. 5559]

   The Delaware River Basin Commission (Commission) 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 nonpoint source discharges of toxic pollutants following issuance of a total maximum daily load (TMDL) under section 303(d) of the Clean Water Act (CWA) (33 U.S.C.A. § 1313(d)) by either a member state or the United States Environmental Protection Agency (EPA) or issuance of an assimilative capacity determination by the Commission.

Supplemental Information

   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 § 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 CWA (33 U.S.C.A. § 1342). For nonpoint 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 or effluent, or both, 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 pollutants from all point and nonpoint 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 the EPA on December 15, 2003, on behalf of Delaware, New Jersey and the Commonwealth, 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 nonpoint 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 rulemaking is intended to accelerate real improvements in water quality by authorizing the Commission to require point and nonpoint 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 rulemaking 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 the EPA of a NPDES permit or permit renewal with respect to that discharge. For nonpoint discharges, the Commission's intention is to apply the rule only where existing state and Federal programs will not ensure 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 (plan) 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 plan. Section D sets forth the requirement that dischargers submit a report annually, quantifying changes in pollutant loadings since initiation of the plan 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 plans under the rule.

Scope of the Proposed Rulemaking

   The scope of the proposed rulemaking 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--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 Plans

   The proposed rulemaking requires dischargers to submit a plan to the Commission and the permitting agency, if any, within 3 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 plan for completeness, and the Executive Director will issue a completeness determination, either confirming that a plan contains all components required by the rule or identifying deficiencies in the plan. Where a deficiency is identified, a discharger has 30 days to submit a revised plan 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 the EPA or a member state after the imposition of a plan requirement under the proposed rulemaking, the permit supersedes any provisions of the plan that relate to the NPDES-permitted discharge.

   Plans 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 plans 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 plan 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 plan to more aggressively reduce pollutant loading.

   The initial term of the plan is to be 5 years. The term of any plan that is not superseded by an NPDES permit within 5 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 plan. 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 for dischargers and regulators to determine the effectiveness of a plan 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, (609) 883-9500, Ext. 224. Written comments will be accepted through Friday, November 19, 2004.

Addresses

   The full text of the proposed rulemaking is on the Commission's website: www.drbc.net. The public hearing will be held in the Kirby Auditorium, National Constitution Center, 525 Arch Street, Independence Mall, Philadelphia, PA. Written comments should be addressed to the Commission Secretary, DRBC, P. O. Box 7360, West Trenton, NJ 08628-0360, fax (609) 883-9522, paula.schmitt@drbc.state.nj.us. Overnight mail should be sent to Commission Secretary, DRBC, 25 State Police Drive, West Trenton, NJ 08628-0360.

Further Information and Contact Person

   Contact Pamela Bush, (609) 883-9500, Ext. 203, with questions about the proposed rulemaking or the rulemaking process.

   It is proposed to amend the Commission's Water Quality Regulations, Water Code and Comprehensive Plan by the addition of the following:

4.30.9 Pollutant Minimization Plans for Toxic    Pollutants

A.  Applicability. Following a determination of assimilative capacity by the Commission or the issuance of a TMDL by the U.S. Environmental Protection Agency or a Basin State for a toxic pollutant, the Commission may require, or in accordance with Section 4.30.9.A.2. below, may authorize the Executive Director to require, classes of point or non-point dischargers or individual dischargers to prepare pollutant minimization plans (''PMPs'') to reduce or prevent releases of the toxic pollutant to Basin waters.

1.  In accordance with Section 5.2 of the Delaware River Basin Compact, the Commission has determined that the effectuation of the Comprehensive Plan requires control and abatement of the pollutants listed below, through the PMP requirements set forth herein. Additional toxic pollutants may be added to this section by amendment of this rule.

(a)  Polychlorinated Biphenyls (PCBs).

2.  The following classes of dischargers shall be subject to the requirements of this rule for the pollutants listed in Section 4.30.9.A.1. Additional classes of dischargers or individual dischargers may be added to this section by amendment of this rule. In addition, the Executive Director, upon approval by the Commission, is authorized to subject additional individual dischargers to this rule based upon a determination in each instance that the discharge has an adverse effect on the water resources of the Basin, subject to the right of the discharger to contest the determination under Article 6 of the Rules of Practice and Procedure.

(a)  For PCBs:

(i)  Dischargers 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).

(ii)  Dischargers listed in Group 2 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), 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.

B.  Procedures for Submission, Review, Implementation and Continuation of PMPs. The following procedures shall apply to PMPs required under this rule:

1.  Time of Submission. A discharger shall submit a PMP to the Commission and the permitting agency (if any) simultaneously within three months of publication of a final rule covering the discharger under Section 4.30.9.A.2. or Commission approval of a decision of the Executive Director to require a PMP, under the same section.. The Commission shall provide written notice of the rule change or decision to affected dischargers.

2.  Completeness Determination. The Commission staff, in consultation with permitting agency staff (if applicable), shall review each PMP for completeness, and the Executive Director shall issue a completeness determination to the discharger, copied to the permitting agency, confirming that a PMP is complete or identifying deficiencies in the PMP. The completeness determination shall not be construed as a determination of the adequacy of the PMP to achieve the maximum practicable reduction of pollutant discharges to the air, soil or water in accordance with Section C.9.

3.  Cure of Deficiency. Within 30 days of receipt of a completeness determination in accordance with Section 4.30.9.B.2., above, dischargers shall submit a PMP to the Commission and the permitting agency (if applicable) that reflects a good faith effort to cure any deficiency identified in the determination. If the revised PMP is satisfactory, the Executive Director shall issue a second determination of completeness stating that the deficiency has been cured. If the revised PMP is still incomplete, the Executive Director in her discretion may either grant the discharger additional time to cure the deficiency or seek penalties against the discharger, unless for cause shown the Executive Director grants a waiver in accordance with Section 4.30.9.E. The Executive Director may commence an enforcement action and/or seek penalties in accordance with Section 14.17 of the Compact and Section 4.30.9.B.9 below in the event of persistent or bad faith failure by the discharger to submit a complete PMP.

4.  Commencement of PMP Implementation. The discharger shall commence implementation of its PMP as submitted, within 60 days of receipt of a determination of completeness under Section 4.30.9.B.2 or B.3.

5.  Initial Term of PMP. Each PMP shall be designed for an initial term of five years.

6.  Relationship to NPDES Permit. Upon issuance of a final new or renewed NPDES permit by the U.S. Environmental Protection Agency or a Basin State after the imposition of a PMP requirement under this rule, the permit shall supersede any provisions of the PMP that relate to NPDES-permitted discharges. An NPDES permit modification shall supersede elements of a PMP relating to NPDES-permitted discharges only if the permit modification expressly so states.

7.  Additional Term of PMP. For any discharge not controlled under the NPDES permit program, the term of the PMP shall be reviewed by the Commission staff in consultation with the state environmental agency staff, and an additional term shall be determined by the Executive Director.

8.  Plans Deemed Non-Compliant. If the Commission determines at any time, upon the recommendation of the Executive Director, that a PMP developed under this rule is not likely to achieve the maximum practicable reduction of pollutant discharges to the air, soil and water, then the Commission may require a revised PMP to be submitted to more aggressively reduce pollutant loading. The discharger shall submit a revised PMP responsive to the Commission's request within 60 days of receipt of the request. The provisions of Sections 4.30.9.B.2 through B.4., with respect to curing a deficiency and commencing implementation, shall apply.

9.  Persistent or Bad Faith Failure to Comply. The Executive Director is authorized to commence an enforcement action against a discharger in accordance with Article 7 of the Commission's Rules of Practice and Procedure for persistent or bad faith failure to submit a complete plan, to modify a plan deemed non-compliant, or to implement a plan.

C.  Plan Elements. A PMP prepared in accordance with these regulations shall contain the following elements:

1.  Good Faith Commitment. A signed and dated statement by the highest ranking official having day-to-day managerial and operational responsibilities for the facility, expressing the company's good faith commitment to reducing discharges of the target pollutant through the PMP process.

2.  Discharger Contact. Name and contact information for an individual who will serve as the Commission's contact for information concerning the PMP.

3.  Description and Maps of Facility

a.  For Industrial Facilities:

--company and facility name and address;

--raw materials and industrial processes used, and products generate;

--for facilities accepting non-facility wastes, a description of all such wastes;

--map of all point and nonpoint source discharges from the facility or site and description of the nature of such discharges (i.e., continuous or intermittent, to surface water or groundwater, flow rate);

--all applicable local, state and federal discharge permits and permit numbers for permits that control the pollutant or relate to discharges that contain the pollutant; and

--receiving stream for all discharges, including River Mile in instances where the receiving stream is the main stem Delaware River.

b.  For Municipal Wastewater Treatment Plants (WWTPs):

--facility name and address;

--description and map of the facility's service area;

--description and map or schematic diagram of the collection system;

--description of any wastes accepted from outside the collection system (e.g., wastes trucked or transported by rail to the site for treatment);

--map of all point and nonpoint source discharges from the facility or site and description of the nature of such discharges (i.e., continuous or intermittent, to surface or groundwater, flow rate);

--all local, state and federal permits and permit numbers for permits that control the pollutant or relate to discharges that contain the pollutant;

--receiving stream for all discharges, including River Mile in instances where the receiving stream is the main stem Delaware River; and

--a list of all industrial users of the collection system and pretreatment permit numbers if any.

4.  Description and Map of Known Sources

a.  Description of all materials, equipment, processes, soil areas or facilities within a facility, site, or service area, from which the pollutant is released directly or indirectly into a wastewater treatment system, sewage collection system, stormwater collection system, stream or river, including a description of the pathways if known.

b.  Site map or service area map showing location of known sources and pathways.

5.  List of Materials, Equipment, Processes, Soil Areas or Facilities Containing or Generating the Pollutant, but Which are Not Known Sources

a.  For industrial dischargers, to the extent practicable, identify any material, equipment, process, soil area or facility on the site known to contain or generate the pollutant, but that is not deemed a source because it is not known to be releasing the pollutant or because no known pathway to surface water or groundwater exists. Identify pollutant concentration if known.

b.  For municipal WWTPs, identify any material, equipment, process, soil area or facility that is part of the collection system or that is within the service area and that is known to contain the pollutant but that is not deemed a source because it is not known to be releasing the pollutant or because no known pathway to surface water or groundwater exists. Identify pollutant concentration if known.

6.  Strategy for Identifying Unknown Sources of the Pollutant (Trackdown)

a.  For industrial dischargers, the strategy for identifying pollutant sources may include, without limitation, investigation of an industrial process used by the discharger that is similar to one known to have generated the pollutant elsewhere; investigation of historic activities on the site; or investigation of possible soil or sediment contamination or stormwater management system contamination as a result of historic or ongoing activities.

b.  For municipal WWTPs, trackdown strategy may include, without limitation, identification, through screening, of portions of the collection system containing higher concentrations or volumes of the pollutant; identification of industrial users of the collection system that are likely to have used or generated the pollutant in the past; industrial processes known to be in use that could generate the pollutant; sites containing equipment that is likely contaminated with the pollutant, sites that have been used to dispose of the pollutant, etc.

c.  Trackdown efforts may rely upon analytical methods other than those required under Section 4.30.9.C.13, below, for purposes of screening or identification of pollutant sources.

7.  Previous, Ongoing or Planned Minimization Activities Undertaken Voluntarily or Required by Other Regulatory Programs. Previous, ongoing or planned pollutant minimization activities under way or to be undertaken voluntarily or in accordance with a federal or state requirement for the pollutant that is the subject of the PMP, including the level of clean-up attained, level of clean-up targeted, measures completed, measures under way, and the schedule for planned activities.

8.  For Municipal WWTPs Only, Recommendations for Action Under Other Regulatory Programs. Based on information known at the time of PMP submission or identified during implementation of the PMP, recommendations for remediation activities to be undertaken under the auspices of other agencies or regulatory programs.

9.  Pollutant Minimization Measures. A description of measures to be taken to achieve the maximum practicable reduction of discharges to the air, soil or water. For known or potential sources, such measures may include but are not limited to: source removal, changes in raw materials, industrial process modifications, treatment modifications, and elimination of pathways to surface and groundwater.

10.  Ranking. Ranking of known and potential sources, either individually or in categories, from most to least significant, on the basis of available information. Factors to be considered in ranking known sources should include, without limitation, available information on volume of the discharge, concentration of the pollutant, and likelihood of release into Basin waters. Factors to be considered in ranking potential sources may include, without limitation, type of current or past industrial activity, presence and type of PCB containing equipment, waste management activities and overall condition of the site and facilities.

11.  Key Dates. Date of submission of waste implementation plan; date by which initiation of plan activities is required (i.e., receipt of completeness determination plus 60 days); and schedule for implementation of each of the measures described in Section 4.30.9.C.9. above.

12.  Measurement of Progress. Description of the procedures to be used to measure, demonstrate and report progress in reducing potential and actual discharges of the pollutant. These procedures shall include at a minimum the following:

--establishing a loading baseline, utilizing methods listed in Section 4.30.9.C.13. below, if applicable;

--annual sampling and analysis of discharges, utilizing methods listed in Section 4.30.9.C.13 below, if applicable

No PMP shall be deemed complete that does not demonstrate that a loading baseline has been or will be established and that changes to mass loadings shall be measured on an annual basis. However, additional measures of progress may be used, including, but not limited to, lists of PCB-containing equipment removed or pathways blocked, or in the case of municipal WWTPs, inventories of PCB-containing equipment initiated or completed; educational programs put in place; areas of the collection system targeted through trackdown; etc.

13.  Sampling and Analytical Methods. The following sampling and analytical methods shall be used for establishing baseline discharges and for measuring pollutant reductions on an annual basis, unless this requirement is waived by the Executive Director in accordance with Section 4.30.9.E., below.

(a)  PCBs--EPA Method 1668, Revision A.

14.  Material Modifications. Within three months of any material modification to a facility's operations, site boundary, service area, or waste streams, the owner or operator must notify the Commission and make appropriate revisions to its PMP.

D.  Annual Report. Each year, commencing one year from the date by which initiation of PMP activities is required to begin in accordance with Section 4.30.9.B.4 above, and continuing through the fifth year of the plan, the discharger shall submit to the Commission and the permitting agency (if any) an annual report:

1.  demonstrating annual and cumulative changes from the pollutant loading baseline since initiation of the PMP; and

2.  describing measures under way and completed to reduce loadings since initiation of the PMP.

E.  Waiver. The Executive Director may waive any of the requirements set forth in Section 4.30.9., upon a showing that they are inapplicable to or inappropriate for a particular facility or site.

F.  Guidance. The Commission may develop guidance consistent with the requirements set forth in Section 4.30.9.B and C. to assist the agencies and dischargers in the development of PMPs under this rule.

G.  Nothing in this rule shall limit the authority of the Commission or the Executive Director under the Compact to control future pollution, abate existing pollution or require review under Section 3.8 of the Compact.

PAMELA M. BUSH,   
Secretary

   Fiscal Note: 68-44. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 25. ENVIRONMENTAL PROTECTION

PART V. DELAWARE RIVER BASIN COMMISSION

CHAPTER 901. GENERAL PROVISIONS

§ 901.2. Comprehensive Plan and water quality.

   The Comprehensive Plan regulations as set forth in 18 CFR Part 401, Subpart A [(2001)] (2004) and the Water Code and Water Quality Standards as set forth in 18 CFR Part 410 [(2001)] (2004) are hereby incorporated by reference and made a part of this title.

[Pa.B. Doc. No. 04-1852. Filed for public inspection October 8, 2004, 9:00 a.m.]

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---