Delaware • New Jersey • Pennsylvania
New York • United States of America
A RESOLUTION to amend the Water Quality Regulations and Comprehensive Plan by establishing pollutant minimization plan requirements for point and non-point discharges of toxic pollutants following issuance of a TMDL or assimilative capacity determination.
WHEREAS, in December of 2003, EPA Regions II and III jointly established a Stage 1 TMDL for PCBs in Water Quality Management Zones 2 through 5 of the tidal Delaware River ("the Delaware Estuary"), based on modeling and monitoring work led by the DRBC; and
WHEREAS, because of uncertainty associated with loading calculations in the Stage 1 TMDL, EPA recommended in its TMDL report dated December 15, 2003 that non-numeric rather than numeric water quality-based effluent limits (WQBELs) should be used in NPDES permits to ensure, in accordance with Clean Water Act requirements, that the permits would be consistent with the Stage 1 TMDL; and
WHEREAS, EPA recommended in particular that when reissued or renewed, the NPDES permits for a group of 60 point source dischargers labeled "Group 1" should be required to develop and implement waste minimization and reduction programs (sometimes called "pollutant minimization plans" or "PMPs") and to perform additional monitoring with Method 1668A; EPA further recommended that a group of 82 dischargers labeled "Group 2" should be required to perform monitoring with Method 1668A for an additional two years and that Group 2 dischargers should be required in year three to develop and implement waste minimization and reduction programs (also called "pollutant minimization plans" or "PMPs"); and
WHEREAS, the states in their capacity as NPDES program administrators determined that they would not reopen the large number of permits that in accordance with the Clean Water Act and the TMDL must include PMP requirements, but instead would add the requirements as appropriate at the time of each permit renewal; and
WHEREAS, because NPDES permits ordinarily are reissued only once every five years, it was proposed that the DRBC should consider imposing a pollutant minimization plan (PMP) requirement earlier, since doing so would ensure that steps to improve the estuary's water quality begin sooner; and
WHEREAS, in view of the need for a degree of uniformity in PMP requirements Basin-wide and the need for guidance to assist the regulated community and permit writers, respectively, in developing and evaluating PMPs, the Commission recognized the benefit of promulgating a basin-wide rule establishing the minimum elements of a PMP; and
WHEREAS, the Commission recognized that such a rule could ultimately be of value in addressing toxic pollutants other than PCBs, which also require TMDLs and for which the imposition of numeric WQBELs also might be impracticable; and
WHEREAS, in light of the importance of contributions to the problem of toxic contamination from another category of sources -- contaminated sites -- the Commission also recognized that the PMP approach could provide a mechanism for addressing such sites when they are not currently being addressed entirely through other state or federal regulatory programs; and
WHEREAS, the Commission staff developed a draft rule in May 2004 and informally solicited comment from state and federal agencies, municipal and industrial dischargers, and the environmental community on three successive versions of the draft -- in May, July and September, 2004; and
WHEREAS, the Commission made substantial modifications in response to written and oral comments before resolving in September 2004 to initiate formal notice and comment rulemaking on the proposed rule, including a 60-day comment period and a formal public hearing; and
WHEREAS, written and oral comments by the regulated community, environmental organizations and regulators generally were supportive of the PMP approach and included thoughtful recommendations for improving and refining the rule; and
WHEREAS, additional changes in response to comments have been made, without altering the basic scope or operation of the rule, which is based on concepts of pollution prevention and sustainability and a recognition that dischargers familiar with their own operations may be best situated to identify opportunities for achieving prompt loading reductions in a cost-effective manner; and
WHEREAS, the Commission desires to achieve a 50 percent reduction of the aggregate point and nonpoint source loads of total PCBs in the Delaware River Estuary within the next five years, and intends to periodically review and update this goal; and
WHEREAS, the Commission in consultation with the TMDL Implementation Advisory Committee intends to establish a peer review advisory committee to evaluate PMPs submitted to the Commission, advise the Executive Director, the Basin States and the dischargers of the anticipated effectiveness of the pollutant minimization measures proposed and identify additional pollutant minimization measures that may be practicable; now therefore,
BE IT RESOLVED by the Delaware River Basin Commission:
The Water Quality Regulations and Water Code are hereby amended by the addition of a new Section 4.30.9 to establish pollutant minimization plan requirements for point and non-point discharges following issuance of a TMDL or assimilative capacity determination.
The text of Section 4.30.9 is attached.
The Executive Director in consultation with the commissioners and the TMDL Implementation Advisory Committee will establish a peer review advisory committee to evaluate PMPs submitted in accordance with Section 4.30.9. in light of the Commission's aggregate goal for reducing PCB loadings and the particular circumstances of each discharge, including load reduction achieved prior to the promulgation of Section 4.30.9.
- This Resolution is hereby incorporated in the Commission's Comprehensive Plan.
/s/ Fred Nuffer
/s/ Pamela M. Bush
ADOPTED: May 18, 2005