01-25258. 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.

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, [e-mail], or by calling [phone].

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 [phone].

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.

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

Waterbody	Reach No.	Pollutant(s)
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.

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 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]

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]

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]

Dated: September 24, 2001.

William Muszynski,

Acting Regional Administrator, Region 2.

Footnotes

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.

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).

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.