Delaware River Basin Commission Amendments to the Water Quality Regulations, Water Code and Comprehensive Plan to Update Water Quality Criteria for pH
AGENCY: Delaware River Basin Commission.
I.D. No. Not applicable.
Filing Date: May 1, 2014
Effective Date: Thirty (30) days from publication of the corresponding notice of final rulemaking in the Federal Register.
The Delaware River Basin Commission is a federal-state regional agency charged with managing the water resources of the Delaware River Basin without regard to political boundaries. Its members are the governors of the four basin states – Delaware, New Jersey, New York and Pennsylvania – and the North Atlantic Division Commander of the U.S. Army Corps of Engineers, representing the federal government.
Action Taken: By Resolution No. 2013-9 on December 4, 2013, the Delaware River Basin Commission (“DRBC” or “Commission”) approved amendments to the Commission’s Comprehensive Plan, Water Quality Regulations and Water Code, relevant portions of which are included in New York State’s Codes, Rules and Regulations.
Statutory Authority: Delaware River Basin Compact, New York Laws of 1961, Chapter 148, Approved March 17, 1961.
Purpose: To update the Commission’s stream quality objectives for pH in interstate tidal and non-tidal reaches of the main stem Delaware River.
For Further Information Contact: Pamela M. Bush, Commission Secretary and Assistant General Counsel by phoning 609-883-9500 Ext. 203, or by email to pamela.bush@drbc.state.nj.us.
Supplementary Information: Notice of the proposed amendments appeared in the New York State Register (page 13) on October 9, 2013, as well as the Federal Register (78 FR 58985) on September 25, 2013, the Delaware Register of Regulations (17 DE Reg. 365) on October 1, 2013, the New Jersey Register (45 N.J.R. 2201) on October 7, 2013, and the Pennsylvania Bulletin (43 Pa.B. 5995) on October 12, 2013. Notice of the proposed changes also was published on the Commission’s web site on September 20, 2013. A public hearing was held on October 24, 2013 and written comments were accepted through November 21, 2013. No written or oral comments were received.
Supplementary Information: The Commission’s current criteria for pH in interstate streams were adopted in 1967. Today, these criteria are inconsistent with scientists’ increased understanding of natural fluctuations in freshwater and saltwater pH levels and with modern applications of pH criteria. The amendments approved by the Commission on December 4, 2013 will minimize regulatory inconsistencies and better address natural pH cycles in the main stem Delaware River. First, they will increase from 6.0 to 6.5 the lower threshold of the range of acceptable pH conditions in non-tidal zones of the main stem – DRBC Water Quality Zones 1A through 1E. Second, they will add a clause to the pH criteria for all interstate tidal and non-tidal water quality zones, recognizing natural deviations outside the 6.5 to 8.5 pH range. In accordance with these changes, the pH criteria for Water Quality Zones 1A through IE (the non-tidal main stem) and 2 through 6 (the tidal main stem and tidal portions of tributaries) will read, “Between 6.5 and 8.5 inclusive, unless outside this range due to natural conditions."
The affected sections of the Commission's Water Code and Water Quality Regulations (and the NYCRR) consist of subsection C.3 of each of sections 3.20.2 through 3.20.6, respectively (subsection (c)(3) of each of 21 NYCRR § § 860.8 through 860.12), for Water Quality Zones 1A through 1E (non-tidal main stem); and sections 3.30.2 through 3.30.6, respectively (21 NYCRR § § 860.27 through 860.31), for Water Quality Zones 2 through 6 (tidal main stem and tidal portions of tributaries). (Note that the affected sections relating to Water Quality Zones 1A through 1E were incorrectly identified in the Notice of Proposed Rulemaking as sections 2.20.2 through 2.20.6 of the Water Code and Water Quality Regulations. Sections 2.20.2 through 2.20.6 of the Water Code are part of an unrelated article; no sections numbered 2.20.2 through 2.20.6 exist in the Water Quality Regulations.) The exact rule text, showing insertions and deletions, appears below.
The complete text of Resolution No. 2013-9, the Water Code, the Administrative Manual Part III - Water Quality Regulations, a basis and background document setting forth the technical basis for the amendments, and additional documents concerning pH criteria for interstate non-tidal and tidal reaches of the main stem Delaware River are available on the Commission’s website, DRBC.net. Copies also may be obtained from the Commission’s Secretary and Assistant General Counsel at the telephone number and email address listed above. A charge for printing and mailing may apply.
Dated: May 1, 2014
PAMELA M. BUSH, ESQ.
Commission Secretary and Assistant General Counsel
PART 860
WATER QUALITY STANDARDS FOR THE DELAWARE RIVER BASIN (ARTICLE 3)
(Statutory authority: Delaware River Basin Compact, art. 5; § 14.2)
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INTERSTATE STREAMS – NONTIDAL
§ 860.8 Zone 1A.
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(c) Stream Quality Objectives.
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(3) pH. Between [6.0]6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.9 Zone 1B.
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(c) Stream Quality Objectives.
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(3) pH. Between [6.0]6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.10 Zone 1C.
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(c) Stream Quality Objectives.
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(3) pH. Between [6.0]6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.11 Zone 1D.
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(c) Stream Quality Objectives.
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(3) pH. Between [6.0]6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.12 Zone 1E.
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(c) Stream Quality Objectives.
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(3) pH. Between [6.0]6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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INTERSTATE STREAMS – TIDAL
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§ 860.27 Zone 2.
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(c) Stream Quality Objectives.
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(3) pH. Between 6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.28 Zone 3.
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(c) Stream Quality Objectives.
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(3) pH. Between 6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.29 Zone 4.
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(c) Stream Quality Objectives.
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(3) pH. Between 6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.30 Zone 5.
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(c) Stream Quality Objectives.
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(3) pH. Between 6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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§ 860.31 Zone 6.
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(c) Stream Quality Objectives.
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(3) pH. Between 6.5 and 8.5 inclusive, unless outside this range due to natural conditions.
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INFORMATION NOTICE
NOTICE OF FINAL RULEMAKING Amendments to the Water Quality Regulations, Water Code and Comprehensive Plan to Revise the Human Health Water Quality Criteria for PCBs in Zones 2 through 6 of the Delaware Estuary and Bay
AGENCY: Delaware River Basin Commission.
I.D. No. Not applicable.
Filing Date: May 1, 2014
Effective Date: Thirty (30) days from publication of the corresponding notice of final rulemaking in the Federal Register.
The Delaware River Basin Commission is a federal-state regional agency charged with managing the water resources of the Delaware River Basin without regard to political boundaries. Its members are the governors of the four basin states – Delaware, New Jersey, New York and Pennsylvania – and the North Atlantic Division Commander of the U.S. Army Corps of Engineers, representing the federal government.
Action Taken: By Resolution No. 2013-8 on December 4, 2013, the Delaware River Basin Commission (“DRBC” or “Commission”) approved amendments to the Commission’s Comprehensive Plan, Water Quality Regulations and Water Code, relevant portions of which are included in Title 21 of New York State’s Codes, Rules and Regulations.
Statutory Authority: Delaware River Basin Compact, New York Laws of 1961, Chapter 148, Approved March 17, 1961.
Subject: Human health water quality criteria for PCBs.
Purpose: To establish a uniform water quality criterion of 16 picograms per liter for polychlorinated biphenyls (PCBs) in the Delaware River Estuary and Bay, DRBC Water Quality Management Zones 2 through 6, for the protection of human health from carcinogenic effects.
For Further Information Contact: Pamela M. Bush, Commission Secretary and Assistant General Counsel, by phoning 609-883-9500 Ext. 203, or by email to pamela.bush@drbc.state.nj.us.
Supplementary Information: Notice of the proposed amendments appeared in the New York State Register (page 3) on August 14, 2013 as well as in the Federal Register (78 FR 47241) on August 5, 2013, the Delaware Register of Regulations (17 DE Reg. 143) on August 1, 2013, the New Jersey Register (45 N.J.R. 1907) on August 5, 2013, and the Pennsylvania Bulletin (43 Pa.B. 4740) on August 17, 2013. Notice of the proposed changes also was published on the Commission’s web site on August 2, 2013. A public hearing was held on September 10, 2013 and written comments were accepted through September 20, 2013.
The uniform water quality criterion of 16 picograms per liter for polychlorinated biphenyls (PCBs) in the Delaware Estuary and Bay for the protection of human health from carcinogenic effects is the product of more than a decade of data-gathering, assessment, debate and consensus-building involving dischargers, regulators, scientists, policy-makers and other stakeholders from across the region. The criterion is the product of a rigorous application of the most current available data and methodology, including site-specific data on fish consumption, site-specific bioaccumulation factors, and the current U.S. Environmental Protection Agency (EPA) methodology for the development of human health criteria for toxic pollutants (see EPA-822-B-00-004, October 2000). The criterion replaces the Commission’s current PCB criteria for the Estuary, which date from 1996. It supersedes less stringent state criteria in effect for Delaware Bay and eliminates the undue complexity associated with the application in tidal waters of criteria that vary by water quality zone.
In addition to proposing the new criterion, the Commission’s notice of proposed rulemaking in August 2013 invited comment on a draft strategy for implementing the criterion for both point and non-point sources. Developed by the DRBC in partnership with the environmental agencies of the states of Delaware, New Jersey and Pennsylvania, EPA Regions II and III and EPA Headquarters (collectively, “the co-regulators”), the draft strategy sets forth detailed approaches for reducing PCB loadings from point and non-point sources over the coming decades. A key objective of the strategy is to provide uniformity and a degree of certainty to National Pollutant Discharge Elimination System (NPDES) permits that will be issued by the states bordering the Estuary and Bay. Notably, no Commission action on the draft implementation strategy was or is proposed. As DRBC’s Notice of Proposed Rulemaking indicated, new total maximum daily loads (“Stage 2 TMDLs”) for PCBs in the Delaware Estuary and Bay are expected to be established by EPA on behalf of the Estuary states following publication of this Final Rule. The strategy document will be included as an Appendix to the Stage 2 TMDL report when issued. Until Stage 2 TMDLs based upon the new criterion are established, the NPDES permitting authorities have indicated they intend to apply the existing permit approach, which was published as an appendix to the Stage 1 TMDLs for PCBs established by EPA Regions II and III for the Delaware Estuary in 2003 and for the Delaware Bay in 2006.
The affected section of the Commission's Water Code and Water Quality Regulations is Section 3.30 (21 NYCRR § 860.30), Table 6: Stream Quality Objectives for Carcinogens for the Delaware River Estuary and Bay. Specifically, in accordance with this Final Rule, for the parameter "PCBs (Total)", in the column headed "Freshwater Objectives (ug/l): Fish & Water Ingestion," the number "0.0000444" is replaced by "0.000016"; in the column headed "Freshwater Objectives (ug/l): Fish Ingestion Only," the number "0.0000448" is replaced by "0.000016"; and in the column headed "Marine Objectives (ug/l): Fish Ingestion Only," the number "0.0000079" is replaced by "0.000016". The exact rule text, showing insertions and deletions, appears below.
The complete text of Resolution No. 2013-8, the Water Code, the Administrative Manual Part III - Water Quality Regulations, a basis and background document setting forth the technical basis for the new criterion, the response-to-comment document addressing comments received by DRBC on the proposed criterion and the draft implementation strategy, and additional documents concerning the control of PCBs in the Delaware Estuary all are available on the Commission’s website, DRBC.net. Copies also may be obtained from the Commission’s Secretary and Assistant General Counsel at the telephone number and email address listed above. A charge for printing and mailing may apply.
Dated: May 1, 2014
PAMELA M. BUSH, ESQ.
Commission Secretary and Assistant General Counsel
PART 860
WATER QUALITY STANDARDS FOR THE DELAWARE RIVER BASIN (ARTICLE 3)
(Statutory authority: Delaware River Basin Compact, art. 5; § 14.2)
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INTERSTATE STREAMS – TIDAL
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TABLE 6: STREAM QUALITY OBJECTIVES FOR CARCINOGENS FOR THE DELAWARE RIVER ESTUARY AND BAY.
