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PA Bulletin, Doc. No. 10-1572




[ 25 PA. CODE CH. 95 ]

Wastewater Treatment Requirements

[40 Pa.B. 4835]
[Saturday, August 21, 2010]

 The Environmental Quality Board (Board) amends Chapter 95 (relating to wastewater treatment requirements) to read as set forth in Annex A. The final form rulemaking includes the elimination of a redundant provision and the establishment of new treatment requirements for new and expanding mass loadings of Total Dissolved Solids (TDS).

 This final form rulemaking ensures the continued protection of this Commonwealth's water resources from new and expanded sources of TDS. Most importantly, the final-form rulemaking guarantees that waters of this Commonwealth will not exceed a threshold of 500 mg/L. In doing so, the final-form rulemaking assures the continued use and protection of drinking water intakes on streams throughout this Commonwealth, provides the required protection of our aquatic life resources and maintains continued economic viability of the current water users.

 This final form rulemaking differs from the proposed rulemaking in several important respects. The differences are direct reflections of concerns raised by industries that would be impacted by this final-form rulemaking. The final-form rulemaking is responsive to those concerns, resulting in improved regulations.

 The changes to the final form rulemaking are protective of water resources in this Commonwealth and are appropriately applied by industrial sector, based on the potential impact of the specific sectors to receiving streams in this Commonwealth. While many existing industries throughout this Commonwealth are of concern, the lower TDS concentrations and total loadings of most of those industries does not necessitate treatment below a 2,000 mg/L threshold. A higher standard of 500 mg/L is being applied specifically to the natural gas sector, based on several factors.

 The most significant rationale for this industry standard is the fact that wastewaters resulting from the extraction of natural gas are of much higher concentration and represent higher overall loadings when compared to those from other industries. In other words, the effluent standard does not dictate the treatment technology. Instead, selection of the treatment technology is driven by the extraordinarily high raw wastewater TDS concentration. Second, treatment technologies are currently available and are being employed in this Commonwealth and other states for the treatment of these wastewaters, in contrast to other industries. Regulatory certainty provided with this final-form rulemaking will drive investment in and development of new technologies. Third, few other states allow the discharge of these treated wastewaters to their surface waters at all. Those that do allow discharge require the wastewater to be treated to standards very similar to the standards in this final-form rulemaking, dispelling any argument that the Commonwealth is creating an economic disadvantage for this industry. Fourth, this industry is new to this Commonwealth and without TDS controls it could impact existing industries, placing them at an economic disadvantage. The potential for growth within this sector is enormous and should that growth be realized, the potential impacts are just as massive. Finally, this industry has shown an ability to respond appropriately in addressing potential impacts to this Commonwealth's natural resources. Options currently exist for other disposal pathways, including nondischarge options and the creativity of the industry only assures that additional disposal and treatment options will flourish and allow for the continued expansion.

 While the intent of both the proposed and final-form rulemakings is to address new, larger sources of TDS, the proposed rulemaking focused upon controlling new sources of ''high-TDS'' wastewater through defining these sources in terms of those that were to be regulated, exempting by default those that were not. To provide greater clarity to the scope of the regulations, the final-form rulemaking takes the approach of specifically exempting certain classes of TDS discharges from the application of this final-form rulemaking. This approach is designed to clearly exclude from the scope of final-form rulemaking all existing loadings of TDS authorized by the Department of Environmental Protection (Department) prior to the effective date of this final-form rulemaking, as well as new and expanding TDS sources which the Department has determined are insignificant from a loading perspective.

 In addition, based on stakeholder comments received during an extensive public and stakeholder participation process, the final-form rulemaking adopts a combination of recommended approaches for addressing these larger loadings of TDS. This combination of approaches includes an industrial sector-based regulation along with a watershed-based analysis. The sector-based piece focuses on the oil and gas industry, mandating the treatment of wastewater. Treatment for wastewater that is not recycled shall be performed at a centralized wastewater treatment (CWT) facility to the standards in the proposed rulemaking. This approach sets treatment requirements for natural gas well wastewaters based on available, proven treatment technologies for this industry and takes cost into consideration. These requirements will assure that any threat of water pollution from this rapidly growing industry is prevented in accordance with the mandate of The Clean Streams Law (act) (35 P. S. §§ 691.1—691.1001).

 Since there are numerous industrial categories and subcategories that include TDS as a pollutant of concern in their wastewater discharges, the watershed-based approach for industrial sectors other than oil and gas establishes an effluent standard and also provides a variance option for these discharges. Industries other than oil and gas would be subject to this standard, but could be granted a variance when assimilative capacity exists based on a watershed analysis. Further details on the watershed-based approach adopted by the final-form rulemaking follow.

 This order was adopted by the Board at its meeting on May 17, 2010.

A. Effective Date

 This final-form rulemaking will go into effect upon publication in the Pennsylvania Bulletin.

B. Contact Persons

 For further information, contact Dana K. Aunkst, Director, Bureau of Water Standards and Facility Regulation, P. O. Box 8774, Rachel Carson State Office Building, Harrisburg, PA 17105-8774, (717) 787-8184; or Richard S. Morrison, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5988 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department's web site at us.

C. Statutory Authority

 The final-form rulemaking is adopted under the authority of sections 5 and 402 of the act (35 P. S. §§ 691.5 and 691.402), which provide for the adoption of regulations implementing the purposes and requirements of the act and for the regulation of activities which create a danger of pollution to the waters of this Commonwealth, and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which authorizes the Board to promulgate rules and regulations necessary to implement the act.

D. Background of the Amendments

Need for the Final-Form Rulemaking

 Many rivers and streams in this Commonwealth have remaining assimilative capacity for TDS when compared to a 500 mg/L TDS in-stream limit, but that capacity is limited. To characterize the relationship between in-stream TDS concentrations and stream flows and to predict the effect of additional TDS loadings on water quality in these waterways, regression analyses of stream flow and TDS were performed. Generally, TDS concentrations exhibit an inverse logarithmic or power relationship with stream flow, with higher TDS concentrations observed at lower flows and lower TDS concentrations observed at higher flows. The TDS-flow regression equations were used to estimate the in-stream TDS concentration at the low-flow condition known as the Q7-10 flow, which is defined as the flow below which the annual 7-day minimum flow falls in 1 out of 10 years on the long-term average. The Q7-10 was designed to match the dose-response toxicity profile of most pollutants with the flow profile of natural free-flowing surface waters.

 More specifically, the TDS-flow regressions performed by the Department were based on mean daily stream flow as recorded at United States Geological Survey (USGS) flow gauging stations and TDS samples collected at long-term monitoring stations near those flow gages. A regression equation was generated from the TDS-flow scatterplots, usually a logarithmic or power function best fit the observed TDS-flow relationships. The TDS concentration at Q7-10 streamflow was then estimated using the regression equation.

 For example, at Water Quality Network (WQN) Station 905 (Beaver River at Beaver Falls, PA) the existing in-stream concentration at the Q7-10 river flow of 530 cubic feet per second is 448 mg/L, based on 10 years of data. This means that about 90% of the assimilative capacity already has been consumed and only about 10% (52 mg/L or 150,000 lb/day) of assimilative capacity remains for the entire Beaver River watershed between the existing concentration and the water quality criterion of 500 mg/L. This type of water quality analysis shows that available assimilative capacity for TDS is limited in some watersheds, especially considering that the Department should reserve assimilative capacity for future uses and also maintain a margin of safety. The following table summarizes the results of these analyses at a number of sites.

Results of TDS Assimilative Capacity Analyses

Station #
Stream Name
Q7-10 flow
Period of
record for
TDS concentration
estimate (mg/L)
at Q7-10 flow
301 Susquehanna River Danville 1,130 1998-2007 95   255
302 Susquehanna River Retreat 1,003 1998-2008 97   271
305 Susquehanna River Towanda 585 1998-2008 104   211
306 Susquehanna River Conklin, NY 178 1998-2008 55   162
323 Susquehanna River Wilkes-Barre 748 1998-2008 57   242
401 West Branch Susquehanna River Lewisburg 764 1998-2007 94   259
402 West Branch Susquehanna River Williamsport 575 1998-2007 51   302
404 West Branch Susquehanna River Karthaus 222 2004-2007 52   542
406 West Branch Susquehanna River Bower 43 1998-2008 60   533
422 Clearfield Creek Dimeling 42 1998-2008 60   769
448 West Branch Susquehanna River Jersey Shore 463 2004-2008 68   319
701 Monongahela River Braddock 905 1998-2004 33   360
702 Monongahela River Elizabeth 651 1998-2008 60   403
714 Dunkard Creek Shannopin 3 1998-2008 61  2,667
725 Monongahela River Point Marion 353 1998-2008 58   346
822 Clarion River Cooksburg 105 1998-2009 58   255
867 Allegheny River Franklin 1,770 1998-2008 54   159
903 Raccoon Creek Moffatts Mill 8 1998-2010 68  1,396
905 Beaver River Beaver Falls 530 1985-2009 58   448

 In contrast to these analyses, representations of TDS assimilative capacity in surface waters that use a simple plot of TDS versus time tell very little until it is too late, when water quality violations are routine and good options do not remain. The Department is required to prevent violations of water quality standards by planning ahead and by using available data and good science. When data are lacking, a conservative approach is warranted. It is incumbent upon the Department, as well as any new proposed sources of loading, to first demonstrate that sufficient assimilative capacity is available before approving additional sources. The Department has broad experience managing the resource and is familiar with the minimum requirements that must be achieved.

 The Department has already been constrained by the situation. For example, in the West Branch Susquehanna River basin, eight applications for new treated discharges were submitted for new discharges of high-TDS wastewater, totaling about 2.6 million gallons of flow, or about 3.3 million lb/day of TDS loading. But there is not assimilative capacity available above Karthaus, so discharges may not be approved above Karthaus. Less than 1 million lb/day of assimilative capacity is available between Karthaus and Lewisburg, as compared to the approximately 3.3 million lb/day in requested capacity. Further, the Department will reserve capacity for future use and also provide a margin of safety for pollutants that may be influenced by nonpoint sources; consequently, much less capacity is actually available for allocation. It is unknown how many of these new facilities will be built, but it is clear that there is a large discrepancy between the amount of proposed TDS loading and the amount of TDS loading the resource can safely accommodate. This is true even considering the reduced projections of the volume of wastewater and TDS load that may result from development of the Marcellus Shale formation in this Commonwealth.


 TDS are comprised of inorganic salts, organic matter and other dissolved materials in water. They can be naturally present in water or the result of runoff, mining practices, oil and gas practices or industrial or municipal uses and treatment of water. TDS discharges contain minerals and organic molecules that can provide benefits such as nutrients, when moderately present, but also may contain contaminants such as toxic metals and organic pollutants. The moderate nutrient benefits are not likely in the case of a high TDS discharge. It is the inorganic TDS that are of concern. The concentration and composition of TDS in natural waters is determined by the geology of the drainage, atmospheric precipitation and the water balance (evaporation/precipitation).

 TDS causes toxicity to water bodies through increases in salinity, changes in the ionic composition of the water and toxicity of individual ions. The composition of specific ions determines the toxicity of elevated TDS in natural waters. Also, as the hardness increases, TDS toxicity may decrease.1 The major concern associated with high TDS concentrations relates mostly to direct effects of increased salinity on the health of aquatic organisms.

 Water quality analyses previously referenced indicate that the major watersheds of this Commonwealth have a very limited ability to assimilate increased loads of TDS, sulfates and chlorides. This phenomenon was most evident during the fall of 2008 when actual water quality issues regarding these parameters emerged in the Monongahela River basin. While river flows reached seasonal lows, the concentrations of TDS and sulfates in the river increased to historic highs, exceeding the water quality standards at all of the 13 potable water supply (PWS) intakes from the border with West Virginia to Pittsburgh. Water quality standards for TDS and sulfate were consistently exceeded in the river through November and December of 2008. Elevated chloride levels were observed on at least one major tributary, South Fork Tenmile Creek, and for the first time, elevated bromide levels were observed in these streams.

 During this period, several environmental agencies performed studies on the effects of TDS, sulfate and chloride discharges on the Monongahela and some of its tributaries. A study2 conducted by the United States Environmental Protection Agency (EPA), the Department and the Allegheny County Health Department also identified bromides as a key parameter of concern in these waters. The study concluded that a high percentage of the disinfection by-products (DBP) being formed in the drinking water systems were brominated DBPs, which pose a greater health risk than chlorinated DBPs; subsequent formation of brominated DBPs increases overall DBP concentrations, specifically trihalomethanes (THM). The study also concluded that based on the speciation there appears to be a strong correlation between THM formation and elevated source water bromide concentrations in the Monongahela River. As a result, the 17 PWS intakes on the Monongahela River are subject to higher levels of the more toxic brominated DBPs, which result in increased risks of bladder cancer to their consumers.

 Several studies3 4 on the potential impacts to aquatic life from these large TDS discharges were also conducted on major tributaries flowing into the Monongahela River in Greene County. Each of these studies documents the adverse effects of discharges of TDS, sulfates and chlorides on the aquatic communities in these receiving streams. The former concludes that there is a high abundance of halophilic (salt-loving) organisms downstream from the discharges of TDS and chlorides and a clear transition of fresh water organisms to brackish water organisms in the receiving stream from points above the discharge to points below. It is evident from this study that increases in salinity have caused a shift in biotic communities.

 The Monongahela River watershed is being adversely impacted by TDS discharges and many points in the watershed are already impaired, with discharges of TDS, sulfates and chlorides as the leading cause of impairment.

 Although the Monongahela has received the most attention, it is not an anomalous situation. The Department studied the results of stream monitoring and conducted an analysis on the water quality of the Beaver River in western Pennsylvania. These results show upward trends in TDS concentrations. The Department also conducted similar studies on the Shenango and Neshannock Rivers, with similar upward trends in TDS concentrations. Watershed analyses conducted by the Department of the West Branch of the Susquehanna River and the Moshannon Creek watersheds also indicate that these watersheds are limited in the capacity to assimilate new loads of TDS and sulfates.

 The Department received several permit applications for wastewater discharge in these areas with limited assimilative capacity. These permits, if issued, will necessarily have to impose conservative limitations on TDS loadings from the discharge due to the existing high in-stream concentrations of TDS. The Department is constrained from approving any significant portion of pending applications for new discharges of high-TDS wastewater that include sulfates and chlorides because of the threat posed by these proposed discharges to the quality of streams in this Commonwealth.

 Existing practices for controlling pollutants in high TDS-containing wastewaters concentrate on the removal of heavy metals, but the processes employed generally do not actually treat for TDS, sulfates and chlorides by removing those pollutants from the wastewater. Instead, control of the effects from high amounts of TDS, chlorides and sulfates currently rely on dilution of the wastewater by the flow of the receiving stream. Dilution is not treatment. As documented by the rising levels of TDS in the waters of this Commonwealth, dilution in and of itself can no longer be considered an adequate practice to control consistently the effects of wastewaters containing substantial loadings of TDS and its components such as sulfates and chlorides. Treatment technologies such as reverse osmosis and evaporation/crystallization will have to be employed to prevent new or expanded loadings of TDS from consuming all of the remaining assimilative capacity in waterways in this Commonwealth. In addition, as the Department moves forward with watershed restoration efforts, such as treatment of abandoned mine drainage discharges and implementation of Total Maximum Daily Loads (TMDL), treatment of TDS, sulfates and chlorides will be necessary to assure that watershed restoration is accomplished and that the existing and designated uses of our streams are maintained and protected.

Public Response and Public Involvement in Development of the Final-Form Rulemaking

 The proposed rulemaking was published at 39 Pa.B. 6467 (November 7, 2009). Due to a publishing error that listed an incorrect e-mail address for the Board, a correction to the proposed rulemaking was published at 39 Pa.B. 6547 (November 14, 2009). The Board advertised that the comment period for the proposed rulemaking was extended by 7 days. The public comment period officially closed on February 12, 2010. In addition, four public hearings were held as follows: December 14, 2009, in Cranberry Township, Butler County; December 15, 2009, in Ebensburg, Cambria County; December 16, 2009, in Williamsport, Lycoming County; and December 18, 2009, in Allentown, Lehigh County.

 The Board received extensive public comments regarding the proposed effluent standards for high-TDS wastewaters. A summary of the comments and responses to the proposed rulemaking appears in Section F.

Water Resources Advisory Committee Stakeholder Process

 Prior to recommending that the proposed rulemaking be provided to the Board, the Water Resources Advisory Committee (WRAC) suggested that further examination be made during the comment period to address two critical areas. WRAC suggested that the Department examine the costs of the proposed rulemaking on the sectors that would be impacted, and the technologies available to treat discharges high in TDS. WRAC created the TDS Stakeholders Subcommittee to work in cooperation with the Department on these issues.

 The TDS Stakeholders Subcommittee was tasked with examining the issue of cost and technology and to make recommendations to WRAC for submission to the Department in the form of formal comments on the proposed rulemaking. The TDS Stakeholders Subcommittee was made up of members of the various industries impacted as well as members of interested environmental groups. The TDS Stakeholders Subcommittee met monthly from August 2009 through March 2010; members of the Department involved in the development of the proposed rulemaking attended these meetings. During that time frame, various sector groups, as determined by TDS Stakeholders Subcommittee members, presented their findings on the impact of the proposed rulemaking on their industry or sector. Those sector groups were as follows: Drinking Water, Natural Resources, Utilities, Municipals, Industrial, Mining and Oil and Gas. All sector groups were provided with an opportunity to present their findings to the TDS Stakeholders Subcommittee and those presentations are available on the Department's web site at committee_%28wrac%29/14017/wrac_taskforce_on_chap ter_95/631764.

 Following the various sector presentations, the TDS Stakeholders Subcommittee debated recommendations for alternative approaches to the draft regulations as proposed by the Department. The Department staff were involved in all of these discussions. The TDS Stakeholders Subcommittee provided a summary of the proceedings to WRAC on March 17, 2010. Those comments are available at %203-12-10.pdf.

 In summary, the TDS Stakeholders Subcommittee suggested a watershed based approach that would allow for use of assimilative capacity when it was available. Further, the TDS Stakeholders Subcommittee suggested that the Department monitor the TDS loadings in watersheds Statewide and only enact effluent limits on dischargers when the loading within the water body was nearing the limit of assimilative capacity. The TDS Stakeholders Subcommittee also suggested that the oil and gas sector be incentivized or perhaps even required to recycle or reuse some percentage of fluids captured in the initial stages of well development, the flow back water as it is traditionally called. Finally, the TDS Stakeholders Subcommittee suggested that what wastewater could not be reused for fracturing other gas wells should be transported to treatment facilities that provide treatment to appropriate standards.

 The Department endorsed the process in which these recommendations were developed and has fully considered the recommendations provided by this group. The TDS Stakeholders Subcommittee was a broad reflection of impacted stakeholders and provided invaluable input, much of which the Department applied as it moved forward in revising the proposed rulemaking.

 The Department also met individually, on multiple occasions, with representatives of the Pennsylvania Coal Association (PCA), the Marcellus Shale Coalition (MSC), the Pennsylvania Chamber of Business and Industry (Chamber), Waste Management, the Electric Power Generation Association and the Allegheny Conference. The amendments being made in this final-form rulemaking directly respond to most of the recommendations made by the TDS Stakeholders Subcommittee and these other organizations. See the Summary of Changes to the Proposed Rulemaking in Section E of this preamble.

 In addition, prior to presenting this regulatory package as final to the Board, the Department met with WRAC on April 14, 2010, seeking concurrence in moving forward with the revised final-form rulemaking. During this discussion, WRAC members sought further clarification on the watershed approach, the impact on conventional gas drillers and the mandatory recycling provision in the proposed rulemaking. Clarification was provided by the Department, summarizing the intent of the watershed based approach. This included an explanation of what was deemed an existing discharge and further clarification that only the additional load above baseline would be subject to the final-form rulemaking should the total loading be more than the 5,000 pounds in mass loading, the Department has determined to be de minimis.

 Discussion on the impacts to the oil and gas industry, particularly the conventional well drillers, was also significant. The Department clarified its intent that existing CWT facilities, in particular those that treat conventional drilling wastewater, are considered as existing facilities and can continue to accept oil and gas wastewater at levels currently approved. Finally, discussion focused on a provision within the regulation that may require the recycling or reuse of oil and gas wastewater. WRAC members noted that this will negatively impact both conventional and Marcellus drillers and should be revised or removed from the final-form rulemaking. Specifically, the effective date of the final-form rulemaking and the subsequent impact that would have on the industry should the recycling provision remain was noted.

 The Department agreed to continue working to address the concerns of WRAC members and the stakeholders they represent, including further examination of the effective date. With the expected continued efforts of the Department noted, WRAC concurred unanimously to move the revised regulation forward to the Board. The motion that carried was:

 WRAC appreciates all of the Department's efforts to respond to our comments and improve the regulation. WRAC believes that the current draft of the regulation is substantially improved over the draft we reviewed in July of 2009, and we understand that additional improvements will be made based on our comments today. Although some of the individual WRAC members continue to have significant concerns about the regulation and whether it should proceed without an advance notice of final rulemaking, in light of the progress and efforts made to date and in light of the Department's wish to proceed with the regulation, the consensus of the Committee is that the regulation should proceed for final consideration by the Board.

Sector-Based Approach for the Oil and Gas Industry

 The Department reviewed the comments received and determined that a sector-by-sector approach to controlling TDS is appropriate. High-TDS wastewaters from different industries present different treatment challenges. Not all industrial wastewaters containing TDS are consistent. Based on the need for regulation of a rapidly expanding industry which generates wastewaters with extraordinarily high levels of TDS and chlorides, the readily available proven treatment technologies for this wastewater, the costs associated with treatment, and the overwhelming public comment in favor of a standard for this industry, the proposed rulemaking refined its original focus on treatment for oil and gas wastewaters. The final-form rulemaking now contains more specific treatment requirements for wastewater generated from all natural gas drilling activities.

 This approach is consistent with the Federal regulatory approach that separates technology-based, end-of-pipe requirements by industry sectors. These requirements establish effluent limits based on best available technologies within an industry, and thus encourage the development and spread of these technologies. This approach further accounts for economic impacts by distinguishing between new and existing sources of pollution, recognizing that new sources can plan their operations factoring in the regulatory requirements for wastewater treatment. The Marcellus shale play has resulted in thousands, and will result in tens of thousands, of new sources of natural gas drilling wastewaters. Although the industry has shown some recent success with reduction in volumes of wastewater needing treatment through the recycling and reuse of flowback and production waters, it is clear that the future wastewater return flows and treatment needs will be substantial. It is appropriate to have a regulatory framework in place now that protects the streams in this Commonwealth under any future scenario. It is not appropriate to simply ''wait and see.'' The Department believes that this approach will promote the reuse of flow back and production waters thus minimizing the costs of treatment. This approach will also drive methods of treatment and disposal that do not involve stream discharge, thus providing the protection for a valuable resource.

 As stated throughout this preamble, as noted by the TDS Stakeholders Subcommittee, as identified in the Department's Strategy for Addressing High-TDS Wastewater and as recognized by an overwhelming majority of public comments on this final-form rulemaking, the primary threat to the quality of streams in this Commonwealth from TDS is coming from the development of the Marcellus shale play. This play, estimated to contain as much as a 500 trillion cubic feet of recoverable natural gas, could result in the development of up to 50,000 new, producing gas wells over the next 20 years.

 The Department is encouraged that the industry has developed and is implementing recycling and reuse and that the play is drier than anticipated, together reducing flow back volumes significantly from the original estimates that created the initial urgency for the proposed rulemaking. The Department remains concerned, however, that development of the play is still in its infancy and as the play matures these phenomena may change significantly. Evidence from the Barnett shale experience supports this concern. As the play matured, flow back rates increased.

 Second, the current Marcellus experience does not provide enough information on the long term rates of produced water to be expected to return from the formation. These wells are anticipated to produce very highly concentrated TDS wastes (over 300,000 mg/L5 ) continuously over the course of 20 to 30 years. For example, if these wells produce an average of ten barrels per week of produced water over their useful lives, a single average well could produce about 27 tons of salt per year (at 300,000 mg/L). Multiply this amount by tens of thousands of Marcellus gas wells, and the potential pollutional effects from these loadings are tremendous. Finally, not enough is known at this point about whether Marcellus wells may need to be ''re-fracked'' one or more times in the future, thus providing additional uncertainty regarding treatment and disposal needs for the wastewater.

 The Department is responsible for assuring that future generations in this Commonwealth have the right to clean air, pure water and to the preservation of the natural, scenic, historic and esthetic values of the environment. This responsibility, along with all of the uncertainty related to the development of the Marcellus play and the potential wastewater generation, leads the Department to take a conservative, proactive approach to regulating the treated wastewater discharges from this new production.

Available Technologies

 Wastewater originating in this formation presents treatment challenges due to the presence of high concentrations of chlorides, barium and strontium, and the presence of naturally-occurring radioactive radium. It is clear that technology for treating the extraordinarily high TDS wastewater from natural gas well drilling operations is both proven and widely available. The Department met with over 60 manufacturers and vendors of technologies for treating the very high levels of TDS from the oil and gas industry, specifically the Marcellus shale formation. While some of these vendors do not have actual facilities in operation and are seeking to get into the business, at least six manufacturers have either piloted the technology at full scale or have facilities currently operating in other states.

 Much of the hesitancy on the part of these technology vendors is the result of uncertainty in the current regulatory framework. Companies are reluctant to move forward without a clear direction concerning required treatment levels for TDS. Implementing this final-form rulemaking will provide regulatory certainty for companies proposing treatment facilities for high TDS wastewaters.

 Notably, treatment facilities for wastewater from natural gas well operations will have a positive economic impact. Investment companies have indicated that without clear direction they are less willing to provide capital for financing these types of wastewater treatment facilities. One company provided information that their treatment plant, if built and operated, could create approximately 70 to 100 short-term jobs during construction and about 12 permanent jobs during operation of their facility. Some companies have also indicated that they may be able to produce a salable salt product after treatment of the high TDS water.

 The Department issued two National Pollutant Discharge Elimination System (NPDES) permits for facilities to treat these wastewaters to the standards in the proposed rulemaking, one in the Williamsport area—Terraqua Resource Management6 —and one in Somerset County—Somerset Regional Water Resources.7 The Department has at least 29 other permit applications currently under review. In addition, facilities have been constructed and are in operation in other states. AOP Clearwater8 recently began operation of a zero liquid discharge facility in Fairmont, West Virginia, and 212 Resources9 operates a treatment facility in Colorado. Integrated Water Technologies10 has recently completed full-scale pilot studies documenting that their technologies are successful in treating these wastewaters to the proposed standards or better.

 The common thread with these facilities is that all employ a form of evaporation/distillation. Flow back waters from natural gas well drilling activities can generally be recycled until they reach certain very high concentrations of TDS, at which point the wastewater must be disposed because it can no longer be effectively reused. Wastewaters that are extremely high in TDS concentration, that is, greater than 30,000 mg/L, are generally not amenable to other technologies. Therefore, the very high concentrations of TDS in this industry's wastewater will necessitate treatment by evaporation/distillation technology. For example, reverse osmosis cannot economically treat the extraordinarily high levels of TDS because the membranes foul and need to be changed too often. It is also important to understand that use of evaporation/distillation technology always results in treated water with TDS concentration levels significantly lower than the 500 mg/L standard for CWT effluent in the final-form rulemaking (it can be as low as 10 mg/L). It is the extraordinarily high TDS quality of the raw wastewater that drives the treatment technology; therefore, the specific effluent standards for the natural gas industry in the proposed rule have been retained in the final-form rulemaking.

Costs of Treatment

 The natural gas well drilling industry in this Commonwealth has a long and notable history. Hydraulic fracturing is not new to this Commonwealth, either. According to the Pennsylvania Oil and Gas Association (POGAM), almost every oil and gas well in this Commonwealth since the early 1960s has been hydraulically fractured in some way to enhance recovery. Handling and disposing of fracturing fluids (produced water) is an old practice. Prior to the Marcellus shale activity in this Commonwealth, oil and gas production (and its concomitant generation of produced waters) was gradually diminishing. The old practice common to this industry of addressing TDS through dilution thus posed a retreating threat to the water quality of streams in this Commonwealth. The arrival of the Marcellus play has drastically changed that paradigm.

 In the preamble to the proposed rulemaking, the Board referred to estimated costs for treating this wastewater at approximately 25¢ per gallon. Each of the manufacturers previously cited that has technology operating has verified that the true costs for treatment of this wastewater range between 12¢ and 25¢ per gallon.

 The MSC provided the TDS Stakeholders Subcommittee with revised estimates of the anticipated treatment and disposal capacity need through a presentation at the November 10, 2009, subcommittee meeting. Their estimate of 2 million gallons per day is based on current flow back rates. The Department believes that this estimate may be low at this point in time, because of the infancy of Marcellus well development in this Commonwealth (see previous discussion). If the estimate were to be doubled, the annual cost of treatment for the industry Statewide could be as high as $365 million (4 million gal/day * 25¢/gal).

 The cost of wastewater treatment, when compared with estimates of the annual revenue from Marcellus Shale gas extraction, is minuscule. Using industry projections, if there are indeed 500 trillion cubic feet of gas recoverable over the next 50 years, and if the price per 1,000 cubic feet were to hold at today's levels (about $5, which is an extremely conservative assumption), the annual revenue industry-wide could be $50 billion. Based on the treatment needs estimates by the industry and this analysis, the cost of treatment would be 0.4% to 0.8% of annual revenue, an insignificant percentage. Moreover, this industry has shown an ability to quickly adjust and develop cost effective solutions, as evidenced by the development and embrace of techniques for reuse of fracturing fluids. Treatment to levels in the final-form rulemaking clearly can be achieved at a reasonable cost to the natural gas industry in this Commonwealth. On the other side, the benefits from preventing the rise of TDS and chloride pollution levels in this Commonwealth's water resources are significant. For example, in economic terms, the TDS Stakeholders Subcommittee noted that stream-related tourism and recreation in this Commonwealth brings in an estimated $28 million annually.

 The Marcellus Shale play is in its infancy, but the industry is clearly growing and will continue to grow for at least the next 10 years throughout the Marcellus Shale formation in this Commonwealth. The Department's aim is to ensure that future growth of this industry is considered in the rules and regulations it puts in place.

 Other industries potentially impacted by this final-form rulemaking are not in a growth stage, nor on a scale as large. Part of the Department's mission is to consider the cost effectiveness of regulations, their impact on the regulated community and whether the regulated community can continue to operate should rules be enacted. This evaluation has led the Department to recognize that other industries throughout this Commonwealth could not effectively adapt to broad-based required end-of-pipe load reductions in TDS; therefore, the watershed based approach was selected for these other industries.

 The Board received comments on the proposed rulemaking from over 4,220 commentators. It is important to recognize that over 90% of those comments supported the proposed rulemaking and that the overwhelming majority of the supporting comments either assumed the proposed effluent standards were for the oil and gas industry or supported the effluent standards applying only to the oil and gas industry. The Department cannot simply discount this tremendous degree of public direction.

 Effective and responsible management of the very real environmental challenges involved with the natural gas industry in this Commonwealth are needed to move forward with its development. The Department must address these challenges now to provide the public and the industry with the regulatory framework to assure that the Marcellus Shale formation in this Commonwealth can be developed safely and rapidly, while protecting and preserving our other natural resources. The wealth and promise of the resource is indisputable, and appropriate environmental management will promote the development of the formation, not hinder it. The amendments to Chapter 95 in this final-form rulemaking are essential to providing needed regulatory certainty.

Watershed-Based Approach for Industries Other than Oil and Gas

 The Board agrees with the comments that were received by various industries pointing out that the proposed rulemaking is a one-size-fits-all approach that may not be appropriate. Different industries have very different wastewaters, even in the composition of the TDS. There are many different technologies that would be necessary to treat these different wastewaters and the costs of treatment to a given standard could create an inequitable economic problem. For example, achieving a 500 mg/L standard for two different industries could require two different technologies, based on the type of TDS, with one technology being much more expensive than the other.

 At the same time, allowing TDS discharges from all of these industrial sectors based only upon dilution, that is, controlling TDS based on water quality-based effluent limitations alone (as recommended by the Chamber), also creates an unlevel playing field. Effluent limitations would then be based on location only, and could give some competing businesses an advantage for simply being located in a watershed without a PWS intake.

 Inorganic TDS is known as a conservative parameter, meaning that TDS is not subject to fate during transport in the water column. These solids are dissolved and will stay dissolved barring huge changes in stream pH. This means that a pound of TDS discharged in the headwaters of a watershed is still a pound of TDS at the mouth of the watershed, or of more concern, at the location of the PWS intake. Cumulative loadings of TDS from multiple discharges upstream of these intakes can cause violations of water quality criteria at design conditions and result in the need for an allocation strategy. Allocation strategies are inequitable unless the same requirements apply to all contributing discharges, independent of the location of each discharge in the watershed.

 The Board addressed this issue and the comments received from the various potentially-affected industries in this final-form rulemaking. The approach establishes an effluent standard for sectors (other than natural gas well operations) at 2,000 mg/L, and allows a variance from this standard under certain conditions specific to the watershed in which the discharge is located. The 2,000 mg/L as a monthly average standard was selected for several reasons. First, it is the bar set in the proposed rulemaking for a high-TDS discharge, meaning that TDS-containing discharges from most industrial sectors and publicly owned treatment works (POTW) do not contain more than 2,000 mg/L TDS and thus would not be subject to this final-form rulemaking. Moreover, unless the discharge flow volume is quite low, a discharge containing greater than 2,000 mg/L will have a TDS loading rate that significantly impacts the assimilative capacity of the receiving stream, even if that stream has substantial flow volume. Second, the final-form rulemaking applies only to new and expanding loads of TDS, not the existing loads, making it more easily achieved and enabling industries that will be affected to plan their operations to meet the new standard. Finally, while the end-of-pipe 2,000 mg/L standard is less stringent than the instream water quality criterion, it is within four to five times that value, and in the Department's Best Professional Judgment assures that adequate instream dilution will be available to prevent exceeding the water quality standard.

 Variances to this standard can be approved by the Department provided that the applicant can demonstrate the need for a variance. A demonstration must be based on the character of the wastewater, the availability of treatment technologies and the costs associated with meeting the standard. These variances are not without limitations. The Department will develop guidance materials to assist applicants in the completion of requests for variances prior to the effective date of this final-form rulemaking.

 Under the final-form rulemaking, an upper bound that limits the degree a discharge can vary from the standard will be established based on water quality considerations. In addition, the watershed analysis must assure that the cumulative load from all sources at the next downstream PWS intake does not exceed 75% of the water quality-based assimilative capacity at design stream flow conditions, as required in § 96.3 (relating to water quality protection requirements), that is, Q7-10.

 The Department will closely monitor TDS levels and take steps necessary to limit increased or future discharges and prevent water quality criteria violations. When the remaining assimilative capacity of a receiving stream falls below 25%, based on analysis at design stream flow conditions, the Department will develop a wasteload allocation for all discharges of TDS that contribute to the specific water quality standards compliance point.

Real-Time Management or Flow Management

 Throughout the comment period, the Board received recommendations that a real-time, or flow management, approach to controlling TDS should be implemented by the Department in place of imposing treatment requirements. Specifically, the recommendation was that the Department should set aside the Chapter 96 (relating to water quality standards implementation) requirement that allocations be based on the Q7-10 design low-flow condition in the receiving water. Support for this position relies on a rationale that does not reflect real-world considerations or good science. This method of managing flows on a real-time basis presents many problems, most notably compliance with Federal and State regulatory water quality standards.

Water quality standards. The fundamental characteristic of numeric water quality criteria is that they include three components: magnitude, frequency and duration. This is especially true of water quality criteria designed to protect aquatic life. Each criterion has been substantiated and advanced based on underlying limitations and conditions that have been specified in the criteria development documentation. Implementation of these criteria is invalid unless the underlying limitations and conditions are preserved. If there is a 230 mg/L water quality criterion for chloride designed to protect aquatic life, the criterion magnitude is advanced on the basis that exposure to concentrations that high will occur rarely (in this case, a frequency of no more than once every 3 years) and for limited periods of time (a duration of no more than 4 days). For the rest of the time, the underlying requirement is that the target organism is not stressed by exposure to chloride at any significant level, that is, that exposure to elevated concentrations of chloride is a rare and isolated event. To achieve the underlying frequency and duration components of the water quality criterion, Water Quality Based Effluent Limitations (WQBEL) must be developed that limit the frequency and duration of instream concentrations of the pollutant of concern.

 An example of a target distribution that would achieve the magnitude, frequency, and duration components of the water quality criteria looks something like the following chart. The criterion magnitude is challenged only rarely with near-background concentrations existing most of the time.

 The effect of using real-time flow management is to allow instream concentrations to approach the criterion magnitude value more often and for longer periods of time. An example of real-time flow management, a target distribution that would achieve the magnitude component but not achieve the frequency and duration components of the water quality criterion might look more like the following chart. The criterion magnitude is challenged continually and concentrations essentially never drop to near-background levels. The WQBEL has not been designed to achieve the frequency and duration components of the water quality criterion, even if the criterion magnitude has not been exceeded.

 The Q7-10 design flow condition was not arbitrarily selected. It was designed to match the flow profile of natural free-flowing surface waters with the dose-response toxicity profile of the pollutant, and thereby achieve the underlying frequency and duration components of the water quality criteria. Use of the steady-state Q7-10 design flow condition is the standard in NPDES permitting at both the State and Federal level for most pollutants. Real-time flow management is inconsistent with the underlying frequency and duration components of the water quality criteria and violates the criterion as surely as if the instream concentration exceeds the criterion magnitude. Failure to achieve the frequency and duration components of the water quality criteria has real-world consequences in terms of biological and other impacts.

Reliance on the dose-response relationship. There are limitations inherent in the methods employed to produce water quality criteria. The normal objective is to define the dose-response relationship using one or more sensitive species. The organisms are exposed to different concentrations of the toxicant for different time periods and the resulting adverse effects are used to define the dose-response relationship. There are two important limitations of the methods. First, for practical reasons when three major variables (species, concentration and exposure time) are involved, there are limits to the number and time-length of these exposure tests. For instance, laboratory analyses may be able to expose sensitive organisms to calibrated concentrations of the pollutant for days or weeks, but not months or years. Hence, the long-term effects of continuous exposure to most toxicants typically are largely unknown. Second, there are limits to measuring toxicity. Third, toxicity alone is not necessarily the only issue. For instance, changing the hardness of water, independent of toxic effects, may have significant impacts on aquatic life. Native species that are acclimated and thrive in soft water may be at a disadvantage to species that perform better in hard water. The hard water is not toxic to the native soft-water species, they just lose out in the competition to better adapted species in the same or similar ecological niche.

 The Q7-10 design flow reflects the limitations of laboratory dose-response toxicity testing and the underlying bases. New criteria are developed with the same underlying limitations and conditions. The Q7-10 design flow prevents nontoxicity effects from manifesting because it assures that the fundamental nature of the receiving water is not changed. Reliance on other methods that allow for higher discharge loading rates moves away from the dose-response model and may pose altering the fundamental nature of the receiving water.

 Pennsylvania Marcellus Shale-related solids will be present in massive quantities. The constituents of greatest concern, especially chloride, do not volatilize or degrade and would remain mostly in the dissolved, bioavailable phase. The sequential loadings of the conservative solids discharged from multiple facilities would accumulate in the receiving water, with dilution the only mitigating factor. The Q7-10 design flow condition is more important than ever, given the nature of TDS and its component solids, to preserve the fundamental nature of the receiving waters as freshwater streams and rivers typical of this Commonwealth.

Protection of Drinking Water

 Water suppliers were generally supportive of the intent of the final-form rulemaking because it will provide more assurance that levels of TDS, a secondary maximum contaminant for drinking water, are not exceeded at the point of intake. Commentators recognized the benefits of the final-form rulemaking but did offer suggested revisions. Those suggestions included support for a watershed based approach. In addition, comments from some water suppliers also included support for technology based limits targeted toward new sources of high-TDS discharges.

 Water suppliers noted that the cost of removal of TDS by water suppliers should be considered as well as additional costs such as notification requirements when secondary maximum contaminant levels (MCLs) are exceeded. There are 349 drinking water suppliers in this Commonwealth that rely on surface water or groundwater under the direct influence of surface water as their primary sources. The impact of not implementing a discharge standard that provides adequate protection to streams and downstream water suppliers would necessitate many of those suppliers to install treatment technologies for TDS removal. While it is true that this treatment may not be necessary at all times, installation for cases in which it is warranted would still be necessary and costly. These costs would be borne by the rate-payers of these water systems.

 As the Department examined the cost-effectiveness of the final-form rulemaking, it was clear that good public policy dictates that the responsibility for the treatment and removal of TDS should not fall to the water suppliers and their customers. The approach the Board has taken in this final-form rulemaking ensures that this cost will not be borne by these end users.

E. Summary of Changes to the Proposed Rulemaking

§ 95.10(a)—Existing Versus New and Expanding—De minimis

 Final-form § 95.10(a) (relating to treatment requirements for new and expanding mass loadings of Total Dissolved Solids (TDS)) differs from the proposed rulemaking. Specifically, this subsection of the proposed rulemaking defined ''high-TDS'' discharges as those discharges that did not exist on April 1, 2009, and that contain TDS concentrations greater than 2,000 mg/L or TDS loads of more than 100,000 lbs/day. The intent was to only regulate these discharges under the effluent standards proposed in § 95.10(b).

 The approach in the proposed rulemaking resulted in a great deal of confusion on the part of regulated dischargers. The Department received numerous telephone calls and comments from dischargers who assumed they would be subject to the effluent standards but who had discharges that would not have been applicable to the proposed rulemaking. These dischargers knew their effluent concentrations were greater than 500 mg/L and thus assumed they would have to provide treatment, when in fact the discharge did not exceed 2,000 mg/L and the discharge would have been exempt from the final-form rulemaking.

 Further, many existing dischargers assumed this exemption would only apply until the next time their permit was to be renewed. They assumed they would then be subject to the requirements for new and expanding discharges, even though they were not expanding. In addition, many dischargers assumed that moving their existing discharge from one location to another, without changing the actual TDS loading, would result in a new discharge, thus invoking the effluent standards. This was most noted by the mining industry.

 From the inception of the rule, the intent of the Board was to exempt existing discharges, and insignificant discharges, from the effluent standards aimed at controlling the new, larger source of TDS. The majority of watersheds in this Commonwealth did not exhibit violations of water quality criteria and Department analyses showed that even with these existing discharges assimilative capacity remained. It was the threat to this available assimilative capacity from new loads of TDS, most notably from the new Marcellus shale gas operations (see discussion of § 95.10(b)) that prompted the Department to take a proactive step to prevent future compromises to water quality standards through the proposed rulemaking.

 Therefore, the final-form rulemaking changes the approach for identifying those larger, new and expanding loads of TDS that would be subject to this regulation. Instead of defining those discharges that are to be included by defining ''high-TDS,'' this final-form rulemaking specifically identifies those existing and smaller discharges of TDS that are not subject to this regulation. The Board believes that this approach provides clarity and improves the regulation.

§ 95.10(a)(1). This section makes it clear that discharge loads of TDS authorized by the Department, under NPDES permits or other authority that were issued or reissued prior to the effective date of this final-form rulemaking, are exempt from the regulation until the net load is to be increased. It is important to note that only an increase in net TDS load is considered to be a new or expanding discharge loading.

 Discharge loads of TDS may be authorized by the Department without actual effluent limitations or monitoring requirements having been placed in an NPDES permit. In most cases, discharge TDS data (or in the case of mining operations, specific conductivity and sulfates data) are submitted with the sample results required for permit applications. Upon review of those data, the Department may determine that these loads do not pose a threat to receiving water quality and thus limitation are not needed. In these cases, the TDS discharge has been authorized, but not limited. Therefore, if TDS (or conductivity) data have been reviewed by the Department as part of an application for an authorized discharge, the discharge load of TDS has been authorized upon issuance of the permit (or other vehicle), regardless of whether there is an actual limitation or monitoring requirement.

 Further, the Board also recognizes that discharges from industries are production-based. A currently-authorized discharge load may not reflect past authorizations due to changes in product lines or current economic conditions. Therefore, the regulation identifies the existing discharge load of TDS as the maximum daily discharge load authorized ''prior to'' the effective date of the final-form rulemaking. This provision allows a discharger to have past authorized, or preexisting, TDS loads considered as existing loads.

 Currently, authorized loadings of TDS, and its components such as sulfates and chlorides, are considered to be the existing discharge loads, even if the facility has in fact typically discharged at a lower load than that authorized by its permit. If a facility applies for a net increase in its authorized TDS loading rate, only the amount of the net increase in its authorized TDS loading will be considered as a new and expanding discharge of TDS subject to the requirements in this rule. The section also clarifies that authorized loads are not subject to the rule if they are merely being combined or relocated from one point in a watershed to another, so long as net mass loadings are not increased by the combination or relocation activity. This section also clarifies that existing waste treatment facilities, such as POTWs and CWTs, that accept and treat wastes from other industries or sources under existing permit authorizations are not subject to this rule, so long as net mass loadings accepted and treated are not increased.

 The Department also received inquiries regarding the proper method for establishing existing discharge loads for the purpose of separating them from proposed load expansions. Guidance materials will be developed to accompany this regulation and will be completed prior to the rule becoming effective. When an expansion is contemplated, the existing discharge loads can be established through sampling of the existing discharge. At least ten daily composite samples, representative of the discharge during normal operations and taken at least 1 week apart, should be adequate to characterize the existing discharge load. These samples can then be averaged to determine the average daily load. Note that this is a mass loading, thus flow measurements at the time of sampling are necessary.

 Finally, it should be noted that the requirements in § 95.10 are expected to be implemented through the Department's administration of the NPDES permitting program. Section 95.10 sets forth treatment requirements which will be implemented in accordance with the framework established by § 92.2a (relating to treatment requirements).

§ 95.10(a)(2). This section clarifies that abandoned mine sites eligible for funding under sections 101, 102, 201 and 401—415 of the Surface Mining Control and Reclamation Act of 1977 (SMCRA) are not considered new and expanding loadings of TDS. Sections 402(g)(4) and 404 of the SMCRA (30 U.S.C.S. §§ 1232(g)(4) and 1234) describe eligible abandoned mine lands; these include lands and water affected by mining and abandoned or left in an inadequate reclamation status prior to August 1977 when the SMCRA was enacted, and sites for which an inadequate bond was forfeited after 1977 and prior to July 1982 when the Commonwealth obtained primary jurisdiction over surface coal mining operations within this Commonwealth. These discharges are clearly not new or expanding loadings of TDS. Moreover, while the Board recognizes that existing discharges from abandoned mine lands substantially contribute to TDS loadings in surface waters, treatment facilities for these discharges are constructed, operated and maintained by the Department itself or by nonprofit watershed groups working in conjunction with the Department. Title IV grants, and other grant funds, are used for this purpose, and the remediation of the legacy of abandoned mine drainage in this Commonwealth is an enormous project which will take many years to accomplish. The Department will retain flexibility to direct scarce Commonwealth resources to treat abandoned mine discharges in a manner which is both cost-effective and achieves the best overall pollution prevention within a watershed.

§ 95.10(a)(3). This section clarifies that surface coal mining operations engaged in remining, with preexisting discharges of TDS covered by the remining regulations in Chapters 87, 88 and 90 (relating to surface mining of coal; anthracite coal; and coal refuse disposal), are not considered new and expanding sources of TDS. Based on sampling data, the Board generally expects that discharges of TDS from erosion and sediment control facilities at surface mining operations will be de minimis. However, preexisting abandoned discharges can contain somewhat higher loadings of TDS. An exception for preexisting discharges covered by remining regulatory requirements is being included to assure that remining operations are not discouraged by this regulation. Because these are preexisting discharges of abandoned mine drainage, they are already contributing TDS and sulfates to the receiving stream. More importantly, the remining operation is expected to abate or reduce the pollutant load of these existing abandoned discharges, thereby resulting in an overall improvement to water quality in the watershed. The mining regulations in Chapter 87, Subchapter F, Chapter 88, Subchapter G, and Chapter 90, Subchapter F (relating to surface coal mines: minimum requirements for remining areas with pollutional discharges; anthracite surface mining activities and anthracite bank removal and reclamation activities: minimum requirements for remining areas with pollutional discharges; and coal refuse disposal activities on areas with preexisting pollutional discharges) will continue to provide the applicable criteria for permitting preexisting discharges on remining areas.

§ 95.10(a)(4). This section clarifies that active surface coal mining operations with an open pit dimension of less than 450,000 square feet exposed at any time are exempt from this regulation. Discharge loads of TDS from these activities are considered to be insignificant.

§ 95.10(a)(5). This section clarifies that TDS discharges from erosion and sediment control facilities used at surface mining activities, which are defined in § 86.1 (relating to definitions), are exempt from this regulation. Discharge loads of TDS from these activities are considered to be insignificant.

§ 95.10(a)(6). This section clarifies that existing mine drainage that is directed to mine pools for further treatment through the pool are exempt from this rule. The mine pool water must be undergoing treatment in accordance with Chapters 91—96. Like the exception for remining, this provision is being included to assure that certain projects involving reclamation of unreclaimed coal refuse piles with existing mine drainage are not discouraged by this regulation.

§ 95.10(a)(7). This section establishes a de minimis loading for new and expanding discharges, exempting small discharges and small increases in discharges from this regulation. New or increased net loads of TDS that total less than 5,000 lbs/day as an annual average daily load are considered to be de minimis and exempt.

§ 95.10(a)(8). This section exempts those dischargers of TDS for which Federal regulations have established effluent limitation guidelines (ELGs) for TDS, chlorides or sulfates. This regulation is not intended to supersede requirements the EPA establishes, or has established, in the form of Best Available Treatment Technology economically achievable (BAT), Best Available Control Technology (BCT) or new source performance standards for a specific industrial subcategory for any of these three parameters. These discharges will be exempt from this regulation.

 The Board recognizes that there are industries for which the EPA has determined, as part of the ELG development process, that BAT, BCT and new source standards for TDS, chlorides or sulfates are not necessary. Discharges of TDS from these sources may be exempt from this rule, depending on the EPA reasoning for not establishing a technology-based limitation. These situations will be reviewed by the Department upon formal written request on a case-by-case basis.

§ 95.10(b)—Sector-Based Approach for the Oil and Gas Industry

§ 95.10(b)(1). This section prohibits discharges to waters of this Commonwealth of wastewater resulting from fracturing, production, field exploration, drilling or well completion of natural gas wells. This section is consistent with the Federal ELG for the on-shore oil and gas industrial subcategory in 40 CFR Part 435 (relating to oil and gas extraction point source category).

§ 95.10(b)(2). In response to concerns raised by WRAC and by the natural gas industry itself, the Board modified the recycling mandate that was contained in the draft final version of the regulation presented to WRAC at its April 14, 2010, meeting. The language in the regulation was changed to promote recycling and requires the development of a waste reduction strategy. The purpose of this change is to drive maximum recycling and reuse of these wastewaters to reduce treatment and disposal threats to streams, treatment and disposal costs to the industry and costs to the industry and taxpayers in the form of wear and tear on state and local highways.

 Concern was voiced that the application of the new TDS standards to conventional shallow gas operations may force the premature abandonment of shallow gas production in this Commonwealth because this section required operators to recycle those wastewaters. By removing the mandate to recycle, the Board believes it has addressed this concern. The Board fully understands that conventional gas well operators confront economic concerns unlike those faced by the new Marcellus operators. Many of these smaller, conventional operators will be unable to recycle their wastewaters because of the marginal economics of the wells. The operators will still have the disposal at existing treatment facilities option available to manage their wastewaters.

 In addition, the concern that conventional brine treatment facilities cannot operate under the proposed rule is without basis. Wastewaters may continue to be sent to existing brine treatment facilities that have historically accepted and treated them. These existing facilities may continue to operate under their existing permits and are not necessarily required to install new treatment. A new or ''expanding mass loading'' of TDS from these existing facilities would require them to comply with the new TDS standards in this regulation. Contrary to misperception, this new requirement does not apply to existing facilities simply when the current NPDES permit term expires. Section 95.10(a)(1) was amended to add further clarity in this regard.

§ 95.10(b)(3). This section provides that new or expanding treated discharges of wastewaters resulting from natural gas well operations may be authorized under an NPDES permit under specific conditions:

§ 95.10(b)(3)(i). The wastewater is hauled to and treated at a permitted CWT facility as this term is defined in 40 CFR 437.2(c) (relating to general definitions). A CWT means any facility that treats for disposal, recycling or recovery of material, hazardous or nonhazardous industrial wastes, hazardous or nonhazardous industrial wastewater, or used material received from offsite. Notably, the definition for CWT facility in 40 CFR 437.2(c) states that the term includes both a facility that treats waste received exclusively from offsite and a facility that treats wastes generated onsite as well as waste received from offsite. This allows for a range of industrial waste treatment facilities to take gas drilling wastewater for treatment, so long as the facility meets the effluent requirements in § 95.10(b).

§ 95.10(b)(3)(ii). The wastewater may not be discharged directly to a POTW without first receiving pretreatment at a permitted CWT. The final rule governing natural gas industry wastewater disposal at POTWs is different than the proposed rule and the April 2009 TDS permitting strategy. Under that strategy, the Department would have allowed POTWs to discharge high TDS wastewaters provided they obtained EPA approval of a pretreatment program under 40 CFR Part 403 (relating to general pretreatment regulations for existing and new sources of pollution) and install appropriate pretreatment facilities. The strategy also would have allowed acceptance of these wastewaters by POTWs only if they met all applicable effluent limits and treatment requirements necessary to protect downstream water supply intakes.

 The final rule is aimed at discouraging POTWs that are not currently approved to accept these wastes from doing so. POTWs do not provide treatment of TDS. They merely pass TDS through their treatment process by means of a dilution. Accepting these high-TDS loads has the very real potential to ruin the POTW's biological treatment process, causing significant noncompliance. Therefore, the final rule establishes that POTWs may accept these wastewaters only if the wastes are first treated at a CWT facility and meet the end-of-pipe effluent standards imposed by the rule. In effect, the final rule regulates these indirect discharges in a manner consistent with direct discharges of these wastes. Again, it is important to note that the majority of other gas-producing states do not allow the surface water discharge of this wastewater at all. Underground injection and nondischarge options are the norm in those states. This rule encourages those options in this Commonwealth.

§ 95.10(b)(3)(iii)—(vii). CWTs treating this wastewater must meet the effluent requirements contained in these subparagraphs.

§ 95.10(b)(4). This section specifies that when these wastewaters are hauled to sites for deep underground injection in this Commonwealth, the sites shall comply not only with the Federal underground injection control requirements but also with § 78.18 (relating to disposal and enhanced recovery well permits), when applicable.

§ 95.10(c)—Effluent Standards for Other than Oil and Gas

 This section establishes the effluent standard of 2,000 mg/L for TDS for all industrial sectors other than oil and gas and provides an optional variance provision, which is detailed in the following section. As previously stated, inorganic TDS is known as a conservative parameter, meaning that TDS is not subject to fate during transport in the water column. Cumulative loadings of TDS from multiple discharges upstream of these intakes can cause violations of water quality criteria at design conditions and result in the need for an allocation strategy. These allocation strategies are inequitable unless the same requirements apply to all contributing discharges, independent of the location of each discharge in the watershed.

 The Board addressed this issue and the comments received from the various potentially-affected industries in this final rule. The approach establishes an effluent standard for sectors (other than natural gas well operations) at 2,000 mg/L and allows a variance from this standard under certain conditions specific to the watershed in which the discharge is located. The 2,000 mg/Las a monthly average standard was selected for several reasons. First, it is the bar set in the proposed regulation for a high-TDS discharge, meaning that TDS-containing discharges from most industrial sectors and POTWs do not contain more than 2,000 mg/L TDS and thus would not be subject to this rule. Moreover, unless the discharge flow volume is quite low, a discharge containing greater than 2,000 mg/L will have a TDS loading rate that significantly impacts the assimilative capacity of the receiving stream, even if that stream has substantial flow volume. Second, the rule applies only to new and expanding loads of TDS, not the existing loads, making it more easily achieved and enabling industries that will be affected to plan their operations to meet the new standard. Finally, while the end-of-pipe 2,000 mg/L standard is less stringent than the instream water quality criterion, it is within four to five times that value and in the Department's Best Professional Judgment assures that adequate instream dilution will be available to prevent exceeding the water quality standard.

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1  Soucek, D.J. & A.J. Kennedy. 2004. Effects of Hardness, Chloride and Acclimation on the Acute Toxicity of Sulfate to Freshwater Invertebrates.

2  Handke, Paul. 2009. Trihalomethane Speciation And The Relationship To Elevated Total Dissolved Solid Concentrations Affecting Drinking Water Quality At Systems Utilizing The Monongahela River As A Primary Source During The Third And Fourth Quarters Of 2008, PA-DEP.

3  Spear, Rick and Kenderes, Gary. February 2009. Cause and Effect Survey, South Fork Tenmile Creek, PA-DEP.

4  Milavec, Pamela J. November 2008. Aquatic Survey of Lower Dunkard Creek, PA-DEP.

5  STW Resources, Inc. August 26, 2008. Presentation to PA-DEP.

6  Terraqua Resource Management, LLC, 1000 Commerce Park Drive, Williamsport, PA 17703. NPDES Permit No. PA0233650.

7  Somerset Regional Water Resources, Larry Mostoller, 888 Stoystown Road, Somerset, PA 15501. NPDES Permit No. PA0253987.

8  AOP Clearwater, Rob Bealko, Operations Manager, 168 AFR Drive, Fairmont, WV 26554.

9  212 Resources. Robert Waits. Executive VP, Business and Government Affairs, 2825 E. Cottonwood Parkway, Suite 180, Salt Lake City, UT 84121.

10  Wastewater Demonstration Final Report. Integrated Water Technologies. 150 Clove Road, Little Falls, NJ 07424. Mavickar Environmental Consultants. January 2010.

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