[Federal Register Volume 59, Number 136 (Monday, July 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17379]
[[Page Unknown]]
[Federal Register: July 18, 1994]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-5014-7]
Approval of Maryland's Submission of a Substantial Program
Revision to Its Authorized National Pollutant Discharge Elimination
System (NPDES) Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Approval of Maryland's revisions to its NPDES
program; publication of EPA's response to public comments on Maryland's
regulation revisions.
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SUMMARY: The State of Maryland submitted amendments to its Code of
Maryland Regulations (COMAR) (adopted by the Secretary of the
Environment on May 6, 1993) to EPA for review as a revision to the
State's authorized NPDES program. The submitted revisions to Maryland's
regulations are considered to be substantial revisions to Maryland's
NPDES program and can be found at COMAR 26.08.03.07 and COMAR
26.08.04.02-1. EPA requested comments from the public on the regulation
revisions in Federal Register notices dated November 10, 1993 and
January 3, 1994 at 58 FR 59724 and 59 FR 87, respectively. EPA
considered all public comments in review of Maryland's regulation
revisions. A summary of the comments and EPA's response can be found
below.
After careful consideration of the regulation revisions and all
public comments, EPA has determined that the revisions satisfy the
Clean Water Act (CWA) and minimum federal requirements. Therefore, EPA
has approved the revisions found at COMAR 26.08.03.07 and COMAR
26.08.04.02-1. These permit regulation revisions may now be considered
effective and may be implemented.
DATES: Maryland's regulation revisions, COMAR 26.08.03.07 and COMAR
26.08.04.02-1, were approved by EPA on May 6, 1994. The regulation
revisions are effective on May 6, 1994.
FOR FURTHER INFORMATION CONTACT: Helene Drago, (215) 597-8242, U.S.
EPA, Region III, 3WM55, 841 Chestnut Building, Philadelphia, PA 19107.
SUPPLEMENTARY INFORMATION: On May 6, 1993, the State of Maryland,
adopted changes to its NPDES permit program regulations found at COMAR
26.08.03.07 and COMAR 26.08.04.02-1. Pursuant to 40 CFR 123.62 and CWA
304 and 402, EPA reviewed the NPDES permit program regulation for
compliance with federal regulation. The revisions to Maryland's
regulations were described in Federal Register notices dated November
10, 1993 and January 3, 1994 at 58 FR 59724 and 59 FR 87, respectively.
A public notice of the regulation revisions was also published in the
Baltimore Sun on November 12, 1993. Copies of Maryland's regulation
revisions were available for review at the EPA Region III office in
Philadelphia, PA. Copies were also available for purchase. As part of
the public comment period, EPA provided the opportunity for a public
hearing. However, there were no requests for a public hearing. All
comments or objections received by EPA Region III were considered by
EPA in its review of the NPDES regulation revisions. A list of persons
who provided comment are provided below. A summary of the comments and
EPA's response can be found below.
After careful consideration of the regulation revisions, all public
comment, and supplemental information submitted by Maryland Department
of the Environment (MDE) in letters dated June 1, 1993, February 15,
1994 and March 23, 1994, EPA has determined that the substantial
revisions to the Maryland's NPDES regulations found at COMAR
26.08.03.07 and COMAR 26.08.04.02-1 meet the requirements of the CWA
and federal regulations. Therefore, EPA has approved the regulation
revisions on May 6, 1994. EPA's approval letter, dated May 6, 1994, to
David A. C. Carroll, Secretary of MDE, provides a full explanation of
EPA's grounds for approval. These permit regulation revisions may now
be considered effective and may be implemented.
Response Summary to Public Comments
Comment: EPA should not disapprove any part of the NPDES
regulations since disapproval will jeopardize the agreement reached by
a group of plaintiffs, MDE and the Chesapeake Bay Foundation.
EPA's response: EPA understands that MDE, the Chesapeake Bay
Foundation and a large group of litigants underwent a lengthy and
complex negotiation to reach the agreement that is reflected in the
revisions to Maryland's NPDES program.
However, EPA is obligated under the CWA and federal regulations to
review any substantial revisions to a State's NPDES regulations to
ensure that the revisions meet minimum federal requirements. It is not
reasonable for any party to request that EPA forgo its legal duty to
carefully review the regulation revisions. EPA must have the freedom to
review, and if necessary disapprove, any part of the regulations
regardless of whether that disapproval will impact a lawsuit
settlement.
Comment: Maryland's intake credit regulation is similar if not more
restrictive than that proposed in the Great Lakes Water Quality
Initiative (GLWQI) and therefore should be approved.
EPA's response: EPA agrees with the commentor that Maryland's
intake credit regulation appears to be similar to EPA's preferred
option found in the proposed GLWQI. The implementation of the intake
credit regulation should assure that any discharger that meets the
requirements of the regulation has no reasonable potential to cause or
contribute to an exceedance of an applicable numeric or narrative water
quality standard. EPA finds the intake credit provisions in Maryland's
regulations acceptable at this time with the understanding that changes
may be appropriate once the GLWQI is finalized.
Comment: Maryland's regulations provide adequate provisions for
whole effluent toxicity (WET) and are consistent with federal law and
regulations.
EPA's response: Under 40 CFR 122.44(d)(1), permitting authorities
must establish whole effluent toxicity or chemical-specific effluent
limitations in NPDES permits where a discharge causes, has the
reasonable potential to cause, or contributes to an exceedance of a
numeric or narrative water quality standard. Because Maryland's
regulation does not require WET limits where standards violations are
possible, Maryland's regulation is not consistent with federal
regulations. However, EPA understands that Maryland is committed to
working toward providing WET regulatory provisions that adequately
address federal regulations. EPA has agreed to approve the regulation
revisions under the following conditions:
(1) MDE has provided an Attorney General's Certification, dated May
10, 1993, that defines MDE's legal authority to impose WET limits.
(2) MDE has agreed to continue to discuss its WET program and the
issue of WET limits outside the context of the this regulation
revision. MDE will work with EPA to finalize, within three months of
this approval, mutually acceptable permitting procedures that will be
used to place WET limits in permits where appropriate.
(3) MDE has agreed to revise the regulations to embody the concepts
of 40 CFR 122.44(d)(1) within two years of March 23, 1994.
Comment: 40 CFR 122.44(d)(1) allows an NPDES authorized State to
exercise discretion in establishing whether pollutants are discharged
at a level which will cause, have the reasonable potential to cause, or
contribute to an excursion above any State water quality standard.
Maryland's regulation 26.08.04.02-1C implements this discretion by
allowing the State to determine that no ``reasonable potential'' exists
if a facility meets certain specific criteria.
EPA's response: EPA agrees that the State determines whether a
discharge will cause, contribute or have the reasonable potential to
cause or contribute to an excursion of a water quality standard.
However, in making this determination a State must consider, at a
minimum, the criteria found at 40 CFR 122.44(d)(1)(ii). ``When
determining whether a discharge causes, has the reasonable potential to
cause, or contributes to an in-stream excursion above a narrative or
numeric criteria within a State water quality standard, the permitting
authority shall use procedures which account for existing controls on
point and nonpoint sources of pollution, the variability of the
pollutant or pollutant parameter in the effluent, the sensitivity of
the species to toxicity testing (when evaluating whole effluent
toxicity), and where appropriate, the dilution of the effluent in the
receiving water''. Maryland must consider these minimum criteria in
determining ``reasonable potential''.
Comment: There is no provision in EPA's regulations stating that a
State cannot exercise its discretion in NPDES permitting on the basis
of generally applicable criteria. If EPA's position is that any
decision under 40 CFR 122.44(d)(1)(i) must be made in the context of an
individual permit, EPA's position is legally incorrect. Maryland's
regulation at 26.08.04.02-1C is a valid determination that any
discharges meeting the listed criteria will not cause, have the
reasonable potential to cause, or contribute to an excursion of water
quality standard.
EPA's response: EPA agrees that reasonable potential determinations
need not be made only in the context of individual permits. EPA does
not have an objection to the concept of using a categorical provision,
as opposed to a permit-by-permit decision, to determine reasonable
potential. However, when EPA approves the use of any general criteria,
it is important that that general criteria is rigorously examined to
ensure that its use will adequately satisfy all federal requirements.
As it is written, it is difficult to determine whether Maryland's
regulation at 26.08.04.02-1C would prevent a discharge from causing,
contributing or having the reasonable potential to cause or contribute
to an excursion of a water quality standard. However, the State of
Maryland has determined that the criteria listed in the regulation is
so narrowly defined that the regulation applies only to dry weather
copper discharges to Colgate Creek from the General Motors facility,
outfalls 001-003 and 010, located in Baltimore, MD. EPA and Maryland
have examined the discharge in question and have determined that it
does not cause, contribute or have the reasonable potential to cause or
contribute to a water quality standard violation. All the criteria
listed in 26.08.04.02-1C ensure no other facility or discharger can use
the regulation in the State of Maryland and it is uniquely applicable
to only the General Motors facility. Due to dilution and tidal flow
found at Colgate Creek, the specific outfalls in question do not
discharge concentrations that cause, contribute or have the reasonable
potential to cause or contribute to an excursion of a water quality
standard.
Should another discharger attempt to use this regulation, or
another State wish to adopt similar provisions in their NPDES permit
regulations, EPA would require specific site information, the State's
exact rationale for a finding of ``no reasonable potential'' and
definitive language which would limit use of such an exemption to an
appropriate discharge. EPA has worked closely with Maryland regarding
this regulation and we have determined that this regulation is
acceptable based on the specific data obtained from MDE in letters
dated June 1, 1993; February 15, 1994; and March 23, 1994.
Written Comments Received
1. Frances Dubrowski, Attorney, Chesapeake Bay Foundation
2. George Van Cleve, Attorney, General Motors Corporation
3. Alan Bahl, Environmental Engineer, Red Star Yeast & Products,
Baltimore, MD
4. Deborah Jennings, Potomac Electric Power Company
5. Colleen Lamont, Baltimore Gas and Electric, Baltimore, MD
6. The Plaintiffs including: Baltimore Gas and Electric Company,
Delmarva Power & Light Company, General Motors Corporation, Bethlehem
Steel Corporation, Potomac Electric Power Company, Maryland Chamber of
Commerce
7. William Riley, Bethlehem Steel Corporation, Bethlehem, PA
8. David Carroll, Secretary, Maryland Department of the Environment
Dated: June 27, 1994.
Peter H. Kostmayer,
Regional Administrator, Environmental Protection Agency, Region III.
[FR Doc. 94-17379 Filed 7-15-94; 8:45 am]
BILLING CODE 6560-50-P
