[Federal Register Volume 66, Number 195 (Tuesday, October 9, 2001)]
[Notices]
[Pages 51430-51432]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-25258]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-7076-1]
Clean Water Act (CWA) 303(d): Addition of Five Waters to the
State of New Jersey's 1998 Section 303(d) List
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice.
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SUMMARY: EPA today notices its final decision to disapprove the State
of New Jersey's omission of five waters on its 1998 Clean Water Act
Section 303(d) list. EPA is adding the following five waters to New
Jersey's 1998 Section 303(d) list for toxic pollutant impairment:
Ackerman's Creek, Berry's Creek, Birch Swamp Brook, Capoolony Creek,
and Edmund's Creek.
DATES: Date of decision was September 24, 2001.
ADDRESSES: Copies of the relevant supporting documents may be obtained
by writing to Ms. Rosella O'Connor, U.S. Environmental Protection
Agency Region 2, 290 Broadway, 24th Floor, New York, New York 10006-
1866, [email protected], or by calling (212) 637-3823.
The administrative record containing background technical
information is on file and may be inspected at the U.S. EPA, Region 2
office between the hours of 8 a.m. and 5:30 p.m., Monday through
Friday, except holidays. Arrangements to examine the administrative
record may be made by contacting Ms. Rosella O'Connor.
FOR FURTHER INFORMATION CONTACT: Ms. Rosella O'Connor, telephone number
(212) 637-3823.
SUPPLEMENTARY INFORMATION:
I. Background
II. Final Action
III. Summary of Comments Received and Agency Responses
I. Background
Section 303(d) of the Clean Water Act (CWA) and EPA's implementing
regulations at 40 CFR 130.7, require states and territories to: Develop
lists of water-quality limited waters still requiring Total Maximum
Daily Loads (TMDLs); establish a priority ranking of these waters;
identify pollutants causing their impairment; and identify waters
targeted for TMDL development over the next two (2) years. TMDLs
include a determination of pollutant loadings compatible with
achievement of applicable state water quality standards. State 303(d)
lists and TMDLs are submitted to the EPA for approval or disapproval.
[[Page 51431]]
Under 40 CFR 130.7(b)(1), water quality-limited segments are not
required to be listed on a State's Section 303(d) list where: Effluent
limitations required by the CWA; more stringent effluent limitations
required by State, local, or federal authority; or, other pollution
control requirements required by State, local or federal authority, are
stringent enough to implement applicable water quality standards.
Waters may be removed from the 303(d) list if any of the listed control
actions will result in meeting water quality standards by the next
listing cycle. If water quality standards are not expected to be
achieved by the next listing cycle, through implementation of other
required controls, it is appropriate for waters to remain on the 303(d)
list to ensure that implementation of the required controls and
progress towards compliance with applicable water quality standards
occur.
On September 15, 1998, the State of New Jersey (``New Jersey'')
submitted its 1998 CWA Section 303(d) list to EPA for review and
approval. On October 8, 1998, EPA approved New Jersey's CWA Section
303(d) list. This list included approximately 1,048 water-quality
limited segments. This list was challenged in a lawsuit commenced in
the Federal District Court for the District of New Jersey, entitled
American Littoral Society and New Jersey Public Interest Research Group
v. United States Environmental Protection Agency, et al. (Civil Action
No. 96-339 (MLC)). In a preliminary decision and order issued in this
case in December 2000, the Court directed EPA to provide for the
inclusion on New Jersey's 303(d) list the five following waters:
Ackerman's Creek; Berry's Creek; Birch Swamp Brook; Capoolony Creek;
and Edmund's Creek. These five waters should have been included on New
Jersey's list due to impairment by toxic pollutants, but were
inadvertently omitted.
By a second order dated July 19, 2001, the Court directed that:
(EPA) shall have 60 days from the entry of this Order to submit to
the Federal Register for publication a final notice adding
Ackerman's Creek, Berry's Creek, Birch Swamp Brook, Capoolony Creek,
and Edmunds Creek to the Clean Water Act section 303(d) list for the
State of New Jersey. Prior to submission of that final notice to the
Federal Register, [EPA] may submit to the Federal Register for
publication a notice proposing the addition of those waters to the
303(d) list and may seek public comment concerning the proposed
addition.
This order was entered on July 27, 2001.
In preparing its 1998 CWA Section 303(d) list, New Jersey relied
upon several sources of information, including the EPA approved CWA
Section 304(l) lists. Under CWA Section 304(l), States were required to
submit to EPA several lists, including, pursuant to Section
304(l)(A)(i)--a list of water bodies the State does not expect to
achieve State water quality standards due to discharges of toxic
pollutants from point or nonpoint sources (the ``mini list''). In 1993,
EPA approved New Jersey's CWA Section 304(l) lists. A notice announcing
EPA's final approval of New Jersey's 304(l) lists, including New
Jersey's mini list, was published in the Federal Register on November
2, 1993 (58 FR 58548).
The five waters that EPA is adding--Ackerman's Creek, Berry's
Creek, Birch Swamp Brook, Capoolony Creek, and Edmund's Creek
(sometimes referred to below as the ``five omitted waters'')--originate
from New Jersey's CWA Section 304(l) mini list. With the exception of
these five waters and the Singac River, discussed below, the remaining
waters listed on the CWA Section 304(l) mini list were included on New
Jersey's 1998 CWA Section 303(d) list.
The five omitted waters were found to be potentially impaired due
to contamination from adjacent hazardous waste sites listed on the
National Priority List.
During the course of the litigation in early 2001, EPA determined
that a sixth water, designated by New Jersey on its mini list as the
Singac River, had also been inadvertently omitted from New Jersey's
303(d) list, despite the fact that New Jersey had previously determined
that it was impaired due to violations of whole effluent toxicity
requirements. However, based on comments received from New Jersey
during the comment period on this proposed action, EPA has determined
that this water does not require listing under Section 303(d).
II. Final Action
EPA is disapproving New Jersey's failure to list the five omitted
waters on its 1998 CWA Section 303(d) list, and is adding these five
waters (shown in Table 1) to New Jersey's 1998 Section 303(d) list. The
pollutants potentially causing impairments of the listed waters are
identified in Table 1. The proposed notice included zinc as a pollutant
of concern for the Birch Swamp Brook. As a result of additional
information received from New Jersey during the comment period, zinc
was removed from the list of pollutants of concern.
Table 1.--List of Five Waters Added to New Jersey's 1998 CWA Section
303(d) List
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Waterbody Reach No. Pollutant(s)
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Ackerman's Creek................ 02030103.......... Chromium, mercury,
PCBs, chlorinated
benzenes.
Berry's Creek................... 02030103034....... Mercury, other
metals.
Birch Swamp Brook............... 02030104.......... Arsenic, lead,
copper, PCBs.
Capoolony Creek................. 02030105.......... DDT.
Edmund's Creek.................. 02030105.......... PCBs.
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CWA Section 303(d)(1) and EPA's regulations at 40 CFR 130.7(b)(4)
require States to prioritize waters on their Section 303(d) lists for
TMDL development. EPA has assigned a ranking of low priority to the
five omitted waters. A low priority is appropriate because of the
control actions that are currently underway for the five omitted
waters, all of which have been listed due to potential contamination
from adjacent hazardous waste sites. EPA expects that these waters
should be restored upon implementation of the remediation plans for the
sites impacting the waters. EPA believes that any TMDL that is
developed for these waters will rely on the remediation plans, required
under 40 CFR 300.430 for the hazardous waste sites. EPA expects that
New Jersey will track the progress of remediation plans for the
relevant hazardous sites and the water quality of the above five
waters.
III. Summary of Comments Received and Agency Responses
EPA noticed its intent to disapprove the omission of the five
omitted waters and the Singac River on August 2, 2001 (66 FR 40282).
The public comment period closed on August 17, 2001. During the comment
period, EPA received comments from the American Littoral Society,
Delaware River Keeper, New Jersey Public Interest Group Citizen Lobby,
and New Jersey. A
[[Page 51432]]
summary of the comments received and EPA's responses follow.
Comment (American Littoral Society, Delaware River Keeper, and New
Jersey Public Interest Group Citizen Lobby): The Court in American
Littoral Society and New Jersey Public Interest Research Group v.
United States Environmental Protection Agency, et al. (Civil Action No.
96-339 (MLC)) ordered EPA to add ``six'' waters to New Jersey's Section
303(d) list. EPA should disapprove New Jersey's 1998 Section 303(d)
list because it is lacking these waters and promulgate a 303(d) list
for New Jersey that includes the ``six'' waters.
EPA Response: The Court's December 2000 and July 2001 orders
addressed only the five omitted waters as follows: Ackerman's Creek;
Berry's Creek; Birch Swamp Brook; Capoolony Creek; and Edmund's Creek.
The action EPA is taking today adds these five waters to New Jersey
Section 303(d) list, thereby satisfying the Court's orders. A sixth
water, designated by New Jersey on its mini list as the Singac River,
was identified by EPA in early 2001 as an additional water that EPA
then believed should be added to the 303(d) list. However, based on
comments received from New Jersey, EPA has determined that this water
should not be listed on New Jersey's 303(d) list.\1\
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\1\ In its comments, New Jersey informed EPA that its original
designation of this water as the Singac River was an error and that
the relevant water's correct name is the Singac Brook. EPA has
confirmed this, as will be discussed in more detail below, and all
subsequent references to this water will be to the Singac Brook.
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Comment (New Jersey): Zinc should not be listed as a contaminant of
concern for Birch Swamp Brook.
EPA Response: EPA has reviewed the Remedial Investigation Report
associated with the adjacent hazardous waste site and agrees that zinc
has not been identified as a pollutant of concern.
Comment (New Jersey): Surface water quality data associated with
the hazardous waste site adjacent to Capoloony Creek indicate that the
site has no impact on surface water quality. EPA issued a Record of
Decision for the site in 1990 which states that no volatile organics or
pesticides were detected in surface water and that trace amounts of
inorganics were detected. Fish samples collected from the stream showed
detectable levels of DDT and other site-related contaminants. Fish
samples from other reaches of Capoloony Creek have shown similar levels
of these contaminants. Capoloony Creek should not be added to New
Jersey's 1998 Section 303(d) list.
EPA Response: Data indicate that fish samples are contaminated with
DDT and other contaminants. It is not clear whether the source of these
contaminants is the hazardous waste site or other unidentified sources.
However, data do not indicate that designated uses and water quality
standards have been achieved. Therefore, EPA disagrees that Capoloony
Creek should not be listed and will include the Creek on New Jersey's
1998 Section 303(d) list. New Jersey may seek to remove Capoloony Creek
from its 303(d) list at the time it is required to submit its next
303(d) list to EPA, provided, however, that New Jersey submit data and
information fully justifying such a delisting.\2\
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\2\ The states are currently required to submit their next
Section 303(d) list by April 1, 2002, but EPA has proposed to extend
this date until October 1, 2002 (66 FR 41817, 8/9/01).
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Comment (New Jersey): The Singac Brook was listed due to
noncompliance with whole effluent toxicity limits in a permit issued to
the Township of Wayne's Mountain View Water Pollution Control Facility.
Whole effluent toxicity test results between 1998 and 2001 indicate
that the permit limit was exceeded one time. Since a whole effluent
toxicity test limit is in effect in the permit and the facility is
expected to comply with the limit, Singac Brook should not be listed.
EPA Response: EPA concurs that the Singac Brook should not be
listed on New Jersey's 1998 Section 303(d) list. This waterbody was
originally identified as requiring controls for whole effluent
toxicity, as a consequence of the discharge from the Township of
Wayne's Mountain View Water Pollution Control Facility (the ``Wayne
Mountain facility'').\3\ The permit issued to the Wayne Mountain
facility includes a limit for whole effluent toxicity. Under (40 CFR
130.7(b)(1)(ii)), waters for which more stringent effluent limitations
required by State or local authority are in effect are not required to
be listed. Therefore, pursuant to 40 CFR 130.7(b)(1)(ii), the permit is
a pollution control requirement, required by New Jersey, that is
sufficiently stringent to implement the applicable water quality
standard, and there is no longer any basis to list the Singac Brook for
whole effluent toxicity.'' \4\
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\3\ As noted above (footnote 1) New Jersey originally designated
this water in its mini list as the Singac River. In its comments,
New Jersey indicated that this was a misnomer and that the correct
name for this water was the Singac Brook. To verify this, EPA
reviewed its New Jersey Pollutant Discharge Elimination System data
base, which indicates that the Wayne Mountain facility discharges to
the Singac Brook, rather than the Singac River. Consequently, the
relevant receptor waterbody is in fact the Singac Brook.
\4\ In addition to the above comments, New Jersey submitted some
general policy comments, and some technical comments with specific
reference to Ackerman's Creek, Berry's Creek and Edmund's Creek.
These comments, however, posed no objections to the listing of these
three waters, the low priority ranking assigned to them by EPA, or
to the pollutants for which they were proposed to be listed.
Consequently, EPA believes that there is no reason to respond to
these additional comments in this Federal Register notice. It is
EPA's intent, however, to address the issues raised by these policy
and technical comments directly with New Jersey in the immediate
future.
Dated: September 24, 2001.
William Muszynski,
Acting Regional Administrator, Region 2.
[FR Doc. 01-25258 Filed 10-5-01; 8:45 am]
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