RULES AND REGULATIONSRULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Great Lakes Initiative (GLI)
[27 Pa.B. 6799]
The Environmental Quality Board (Board) by this order amends Chapter 93 (relating to water quality standards) to read as set forth in Annex A. These regulatory changes incorporate requirements of the Great Lakes Water Quality Guidance (GLI) into the water quality standards regulation.
This notice is given under Board order at its meeting of September 16, 1997.
A. Effective Date
These amendments are effective upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact Edward R. Brezina, Chief, Division of Water Quality Assessment and Standards, Bureau of Watershed Conservation, 10th Floor, Rachel Carson State Office Building, P.O. Box 8555, 400 Market Street, Harrisburg, PA 17105-8555, (717) 787-9637 or William J. Gerlach, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P.O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department) Web site (http://www.dep.state.pa.us).
C. Statutory Authority
The final rulemaking is promulgated under the authority of the following acts: sections 5(b)(1) and 402 of The Clean Streams Law (act) (35 P. S. §§ 691.5(b)(1) and 691.402); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grant to the Board the authority to develop and adopt rules and regulations to implement the provisions of the act.
D. Background of the Amendment
The Commonwealth's Water Quality Standards, which are set forth in part in Chapter 93, implement the provisions of sections 5 and 402 of the act and section 303 of the Federal Clean Water Act (33 U.S.C.A. § 1313). Water quality standards consist of the designated uses of the surface waters of this Commonwealth and the specific numeric and narrative criteria necessary to achieve and maintain those uses.
The GLI requirements, promulgated at 40 CFR Part 132 on March 23, 1995 (60 F.R. 15366), provide for consistent protection for fish and shellfish in the Great Lakes System and the people and wildlife who consume them. The GLI focuses on long-lasting pollutants called bioaccumulative chemicals of concern (BCCs) that accumulate in the food web of large lakes. The major elements of the GLI are: water quality criteria to protect human health, aquatic life and wildlife; methodologies for criteria development; procedures for developing effluent limits for point sources; and antidegradation policies and procedures. States are required to adopt water quality standards, antidegradation policies and implementation procedures ''as protective as'' the GLI.
The Commonwealth's strategy for complying with the GLI has two major objectives. The first objective is, wherever possible, to provide Statewide consistency, so that unequal requirements are not focused on specific regions of this Commonwealth. The second objective is to provide special protection to the unique resource known as the Great Lakes System in this Commonwealth. To meet these objectives, these amendments apply scientifically sound methodologies from both current practice and as identified in the GLI, Statewide. Exceptions to Statewide procedures are made when the unique character of the Great Lakes System demands special consideration. For example, BCCs pose a particular threat to the Great Lakes because of the long retention of pollutants in the Great Lakes, which contrasts with the ability of streams to flush out those pollutants by means of their flow. For this reason, application of procedures for BCCs is different for the Great Lakes than in other waters of this Commonwealth.
The Department held several public meetings, met with technical and advisory committees, and made the proposed strategy available for review and comment prior to formally submitting proposed rulemaking to the Board. A public meeting was held in Erie on the requirements of the GLI on September 5, 1995. In February 1996, the Commonwealth's proposed strategy was made available on the world wide web for public comment. Two meetings were also held on June 5, 1996, one with an ad hoc Great Lakes Technical Committee and the second with the public, to discuss the proposed strategy. In addition, the Department has met on several occasions with the Water Subcommittee of the Air and Water Quality Technical Advisory Committee (AWQTAC) to discuss the GLI strategy, and has sent representatives to participate in meetings with the Council of Great Lakes Governors Working Group and Technical Subcommittee, which provides a forum for the states to discuss how each is addressing the GLI requirements. Particular issues were raised and responded to at these meetings.
In addition to these final-form regulations, the Department is incorporating numerous GLI provisions into the statement of policy in Chapter 16 (relating to water quality toxics management strategy). The proposed amendments to the statement of policy were published in the Pennsylvania Bulletin on December 28, 1996. The amendments to Chapter 16 are being finalized concurrent with this regulation and are published at 27 Pa.B. 6817 (December 27, 1997).
E. Summary of Comments and Responses on the Proposed Rulemaking
The proposed amendments were approved by the Board at its February 18, 1997, meeting, and notice of the proposed rulemaking was published at 27 Pa.B. 1561 (March 29, 1997). The proposal included provisions for a 45-day public comment period and a public hearing to receive additional written and oral testimony on these GLI regulatory amendments. The public hearing was held on May 13, 1997, at the Rachel Carson State Office Building in Harrisburg, but no witnesses came forward to provide testimony. The Board received comments from three commentators during the public comment period the United States Environmental Protection Agency (EPA), Region 3; GENCO, GPU Generation, Inc; and the Independent Regulatory Review Commission (IRRC).
The major comments and responses are summarized as follows: Comments were received concerning definitions for terms included in the regulatory proposal. One commentator stated that the proposed definition for ''BCCs'' is incomplete because it does not include the specific methodologies for BAFs. The definition has been amended to include reference to the methodologies for BAFs, and has also been moved to § 93.8a(k)(1). Another comment stated that the Department must incorporate the definitions found in 40 CFR 132.2 when state provisions reference GLI requirements. In response, except where a term is defined otherwise in Commonwealth law or regulation, the definitions of terms defined in 40 CFR 132.2 will be utilized in applying Appendix F, Procedure 3.D., and all subparts referenced in that procedure, except when these definitions reference the vacated Procedure 3.C., in which case they will not be used.
As noted by a commentator, there are several water quality regulation amendments under development at this time. Specific language concerning protection of threatened and endangered species is contained in the antidegradation regulation proposed at 27 Pa.B. 1459. One commentator recommended that, if the entire GLI antidegradation language in Appendix E to 40 CFR Part 132 were not adopted by reference, the Board should explain that position in this order. In accordance with that recommendation, notice is given that implementation measures for the GLI antidegradation provisions will be included in separate guidance documents.
Several comments and recommendations were received concerning Total Maximum Daily Loads (TMDLs) and mixing zones. On June 6, 1997, the United States Court of Appeals for the District of Columbia ruled in American Iron and Steel Institute v. EPA, 115 F.3d 979 (1997) that portions of the EPA GLI regulation were invalid. The proposed regulation has been amended accordingly to reflect the court decision. See Part F of this Preamble for details.
The Department has responded to these comments by making appropriate revisions to the proposal as described in Section F of this Preamble. The Department will also develop separate implementation guidance for the GLI provisions.
F. Summary of Changes to the Proposed Rulemaking
Based upon questions raised during the public comment period, the development of this final-form rulemaking, and subsequent case law, the Department has revised portions of the proposed regulatory amendments to provide clarification and consistency with the requirements of the GLI provisions as they are to apply in this Commonwealth.
Some of the changes resulted from a court decision. On June 6, 1997, the United States Court of Appeals for the District of Columbia ruled in American Iron and Steel Institute v. EPA, that portions of the EPA GLI regulation were invalid. Specifically, the Court vacated: (1) the procedure in Appendix F, Procedure 8.D, insofar as it would impose point source water quality based effluent limitations upon a facility's internal waste streams; (2) the proposed human health and wildlife criteria for polychlorinated biphenyls (PCBs); and (3) Appendix F, Procedure 3.C, and remanded the rule to EPA for further cost-benefit analysis on the effects of eliminating mixing zones for dischargers of BCCs to the Great Lakes Basin.
In light of the AISI decision, several changes have been made to the proposed regulation. First, the proposed § 93.8a(k)(1) (relating to development of site-specific water quality criteria) has been eliminated. That section had provided that dischargers of BCCs to waters of the Great Lakes System had to comply with the mixing zone procedures of Appendix F, Procedure 3.C. This change assures that the dischargers are not compelled to follow procedures, including phasing out their mixing zones for BCCs in their discharge by 2007, which have been invalidated. Second, proposed § 93.8a(k)(2) has been modified to provide that TMDLs for Open Waters of the Great Lakes shall be derived following the procedures at Appendix F, Procedure 3.D., including all other subparts referenced in subpart D except Procedure 3.C. This change assures that TMDLs will be derived based on Procedure 3.D, and all subparts referenced in that procedure, except the subpart (3.C) which has been vacated and remanded to EPA for further action.
The revisions from the proposed rulemaking are summarized as follows:
Description of Recommended Revision from Section Proposed to Final Rulemaking 93.1 Definitions: Definitions for ''BAF--bioaccumulation factor,'' ''BCC--bioaccumulative chemicals of concern,'' ''Great Lakes System,'' and ''Open Waters of the Great Lakes'' are moved from this section to § 93.8a(k)(1) since they apply specifically to the Great Lakes System. Moreover, except where a term is defined otherwise in Commonwealth law or regulation, the definitions of terms defined in 40 CFR Section 132.2 will be utilized in applying Appendix F, Procedure 3.D., and all subparts referenced in that Procedure, for the derivation of TMDLs in the Open Waters of the Great Lakes System, except when the definitions reference the vacated Procedure 3.C, in which case they will not be used. 93.8 Development of site-specific water quality criteria: (b) This paragraph is updated to reference the current version of the EPA Water Quality Standards Handbook (1994). (f) For consistency with other revisions, the term ''aquatic life'' is being deleted from this section which describes site-specific criteria. 93.8a Toxic substances: (k)(1) The new subsection (k), relating to requirements for discharges to the Great Lakes System, is revised by inserting a new § 93.8a(k)(1) adopting the definitions proposed at § 93.1 relating to protection of the Great Lakes System. As a result, the previously proposed paragraphs are renumbered. Proposed (k)(1) is deleted because of new case law. (k)(2) A statement is inserted which describes that all other subparts referenced in Subpart D of 40 CFR Part 132, Appendix F, Procedure 3, except Subpart C, shall be followed to derive TMDLs for Open Waters of the Great Lakes System. (k)(4) The language relating to economic or social benefits outweighing water quality degradation has been deleted to be consistent with the GLI.
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
1. Benefits--Overall, the citizens of this Commonwealth will benefit from these recommended changes because they will provide appropriate protection of surface waters in the Great Lakes System, including concerns specific to this Commonwealth.
2. Compliance Costs--Discharges to the Great Lakes System, especially to the Open Waters of the Great Lakes, may require alternate disposal methods and the installation of additional technology to meet any more stringent effluent limitations which may result from application of these final-form regulations. Compliance costs may be higher for discharges to these waters, if more stringent effluent limits are needed.
The changes may have some fiscal impact on or create additional compliance costs for the Commonwealth, political subdivisions, local governments and the private sector with wastewater discharges to the Great Lakes System. The number of affected discharges depends on the types and amounts of substances they discharge (whether or not they are BCCs). Currently, no permitted discharge to the Great Lakes System is known to be discharging BCCs and, therefore, no discharge currently has any effluent limitations for any BCCs.
3. Compliance Assistance Plan--The Department plans to educate and assist the affected public with understanding the revised requirements and how to comply with them by developing guidance. Regional Office permitting staff will work with dischargers, where necessary, to assist them in meeting any additional requirements imposed by the GLI. Based on currently available information, significant changes to permit limits and compliance levels are not expected.
4. Paperwork Requirements--The regulatory revisions should not have any additional paperwork impacts on the Commonwealth, its political subdivisions and the private sector.
H. Pollution Prevention
Pollution prevention approaches to environmental management often provide environmentally sound and longer-term solutions to environmental protection because pollution is prevented at the source. Pollution prevention is defined by the EPA as measures taken to avoid or reduce generation of all types of pollution--solid/hazardous waste, wastewater discharges and air emissions--at their point of origin; however, it does not include activities undertaken to treat, control or dispose of pollution once it is created. The Federal Pollution Prevention Act of 1990 established a National policy and an environmental management hierarchy that promotes pollution prevention as the preferred manner for achieving state environmental protection goals. The hierarchy is as follows:
a. Pollution should be prevented or reduced at the source.
b. Pollution that cannot be prevented should be recycled in an environmentally safe manner whenever feasible.
c. Pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible to render it less hazardous, toxic or harmful to the environment.
d. Disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.
The short- and long-term health of this Commonwealth's economy depends on clean air, pure water and the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvanians spend over $1 billion per year in efforts to control pollutants through regulation of both industrial point discharges and nonpoint sources. To meet the Commonwealth's economic development and environmental protection goals successfully, the Commonwealth needs to adopt programs like pollution prevention that not only protect the environment but also significantly reduce costs and increase the competitiveness of the regulated community. When pollution is prevented up front, it can reduce a company's bottom-line costs and overall environmental liabilities often by getting the company out of the regulatory loop. It also can get the Department out of the business of regulating pollution that may not need to be generated in the first place.
In keeping with Governor Ridge's interest in encouraging pollution prevention solutions to environmental problems, these final-form regulations have incorporated the following provisions and incentives to meet that goal:
These final-form regulations are consistent with the GLI provisions that encourage pollution prevention by promoting the development of pollution prevention analysis and activities in the level of detection, mixing procedures and antidegradation. Also, special provisions for BCCs reduce the discharge of these pollutants in the future, and therefore aid in preventing pollution.
I. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended. In addition, these final-form regulations are water quality standards which will be reviewed at least triennially, as required by Federal regulations.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 17, 1997, the Department submitted a copy of the proposed rulemaking to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment. The notice was published at 27 Pa.B. 1561 (March 29, 1997). In compliance with section 5(b.1) of the Regulatory Review Act, the Board also provided IRRC and the Committees with copies of the comments received as well as other documentation.
In preparing these final-form regulations, the Board has considered all comments received from IRRC and the public. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Committees on October 27, 1997. IRRC met on November 6, 1997, and approved the regulations in accordance with section 5(c) of the Regulatory Review Act.
K. Findings of the Board
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 1561.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
L. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department of Environmental Protection, 25 Pa. Code Chapter 93, are amended by amending §§ 93.1, 93.8, and 93.8a to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect immediately upon publication in the Pennsylvania Bulletin.
JAMES M. SEIF,
(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 27 Pa.B. 6128 (November 22, 1997).)
Fiscal Note: Fiscal Note 7-312 remains valid for the final adoption of the subject regulations.
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 93. WATER QUALITY STANDARDS
§ 93.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * *
Surface waters--Perennial and intermittent streams, rivers, lakes, reservoirs, ponds, wetlands, springs, natural seeps and estuaries, excluding water at facilities approved for wastewater treatment such as wastewater treatment impoundments, cooling water ponds, and constructed wetlands used as part of a wastewater treatment process.
* * * * *
§ 93.8. Development of site-specific water quality criteria.
(a) The Department will consider a request for site-specific criteria for protection of aquatic life, human health or wildlife when a person demonstrates that there exist site-specific biological or chemical conditions of receiving waters or exposure factors which differ from conditions upon which the water quality criteria were based. Site specific criteria may be developed for use only in place of current Statewide or regional (such as the Great Lakes System) criteria. The request for site specific criteria shall include the results of scientific studies for the purpose of:
(1) Defining the areal boundaries for application of the site-specific criteria which will include the potentially affected wastewater dischargers identified by the Department, through various means, including, but not limited to, water quality modeling, the wasteload allocation process or biological assessments.
(2) Developing site-specific criteria which protect its existing use and designated use.
(b) Scientific studies shall be performed in accordance with the procedures and guidance in the Water Quality Standards Handbook (EPA 1994), as amended and updated, guidance provided by the Department or other scientifically defensible methodologies approved by the Department.
(c) This section applies to the criteria in regulations adopted by the EQB, including § 93.5(f) (relating to application of total residual chlorine criteria); § 93.7, Table 3 (relating to specific water quality criteria) or in the statement of policy implementing § 93.8a (relating to toxic substances) set forth at § 16.51 (relating to table) and § 16.61 (relating to water quality criteria for the Great Lakes System); or otherwise forming the basis for effluent limitations established under § 93.7(f). These provisions include criteria developed by the EPA under section 304(a) of the Water Pollution Control Act (33 U.S.C.A. § 1314(a)), and adopted in their original or modified form, and criteria developed by the Department.
(d) Prior to conducting studies specified in subsections (a) and (b), a proposed plan of study shall be submitted to and approved by the Department.
(e) Signed copies of all reports including toxicity test data shall be submitted to the Department within 30 days of completion of the tests.
(f) If as a result of its review of the report submitted, the Department determines that a site-specific criterion is appropriate, the Department will, for site-specific changes to criteria in § 93.5(f) or § 93.7, prepare a recommendation to the EQB in the form of proposed rulemaking, incorporating that criterion for the water body segment. The site-specific changes to the criteria will become effective for the water body segment following adoption by the EQB as final rulemaking and publication in the Pennsylvania Bulletin.
(g) A person challenging a Department action under this section shall have the burden of proof to demonstrate that the Department's action does not meet the requirements of this section.
§ 93.8a. Toxic substances.
(a) The waters of this Commonwealth may not contain toxic substances attributable to point or nonpoint source waste discharges in concentrations or amounts that are inimical to the water uses to be protected.
(b) Water quality criteria for toxic substances shall be established under Chapter 16 (relating to water quality toxics management strategy--statement of policy) wherein the criteria and analytical procedures will also be listed. Chapter 16 along with changes made to it is hereby specifically incorporated by reference.
(c) Water quality criteria for toxics substances which exhibit threshold effects will be established by application of margins of safety to the results of toxicity testing to prevent the occurrence of a threshold effect.
(d) Nonthreshold carcinogenic effects of toxic substances, will be controlled to a risk management level of one excess case of cancer in a population of one million (1x10-6) over a 70-year lifetime. Other nonthreshold effects of toxic substances will be controlled at a risk management level as determined by the Department.
(e) Design conditions for toxics shall be determined under § 93.5(b) (relating to application of water quality criteria to discharge of pollutants), except that for carcinogens, the design stream flow shall be that which results in a lifetime--70 years--average exposure corresponding to the risk management level specified in subsection (d).
(f) The Department will consider both the acute and chronic toxic impacts to aquatic life and human health.
(g) The Department may consider synergistic, antagonistic and additive toxic impacts.
(h) The Department may require effluent toxicity testing as a basis for limiting the addition of toxic substances to waters of this Commonwealth, and may establish water quality based effluent limitations based on the results of effluent toxicity testing.
(i) At intervals not exceeding 1 year, the Department will publish a new or revised water quality criteria for toxic substances, and revised procedures for criteria development in the Pennsylvania Bulletin.
(j) A person challenging criteria established by the Department under this section shall have the burden of proof to demonstrate that the criteria does not meet the requirements of this section. In addition, a person who proposes an alternative site-specific criterion shall have the burden of proof to demonstrate that the site specific criterion meets the requirements of this section.
(k) The requirements for discharges to and antidegra- dation requirements for the Great Lakes System are as follows.
(1) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
BAF--Bioaccumulation Factor--The ratio in liters per kilogram of a substance's concentration in tissues of an aquatic organism to its concentration in the ambient water, when both the organism and its food are exposed and the ratio does not change substantially over time.
BCC--Bioaccumulative Chemical of Concern--A chemical that has the potential to cause adverse effects which, upon entering the surface waters, by itself or its toxic transformation product, accumulates in aquatic organisms by a human health BAF greater than 1000, after considering metabolism and other physiochemical properties that might enhance or inhibit bioaccumulation, under the methodology in 40 CFR Part 132 Appendix B (relating to Great Lakes Water Quality Initiative). Current BCCs are listed in 40 CFR 132.6, Table 6, Subpart A (relating to pollutants of initial focus in the Great Lakes Water Quality Initiative).
Great Lakes System--The streams, rivers, lakes and other bodies of surface water within the drainage basin of the Great Lakes in this Commonwealth.
Open Waters of the Great Lakes--The waters within the Great Lakes in this Commonwealth lakeward from a line drawn across the mouth of the tributaries to the lakes, including the waters enclosed by constructed breakwaters, but not including the connecting channels.
(2) Total Maximum Daily Loads (TMDLs). TMDLs for Open Waters of the Great Lakes shall be derived following the procedures in 40 CFR Part 132, Appendix F, Procedure 3, Subpart D (relating to Great Lakes Water Quality Initiative implementation procedures), including all other subparts referenced in Subpart D, except Subpart C.
(3) Statewide antidegradation requirements in Chapters 93 and 95 (relating to water quality standards; and wastewater treatment requirements) and in the Federal regulation in 40 CFR 131.32(a) (relating to Pennsylvania) as applicable, apply to all surface waters of the Great Lakes System.
(4) If, for any BCC, the Quality of the surface water exceeds the levels necessary to support the propagation of fish, shellfish, and wildlife and recreation in and on the waters, that quality shall be maintained and protected, unless the Department finds that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the surface water is located.
[Pa.B. Doc. No. 97-2079. Filed for public inspection December 26, 1997, 9:00 a.m.]
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