RULES AND REGULATIONS
Title 25—ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 93 ]
Triennial Review of Water Quality Standards
[50 Pa.B. 3426]
[Saturday, July 11, 2020]
The Environmental Quality Board (Board) amends Chapter 93 (relating to water quality standards). This final-form rulemaking fulfills the Commonwealth's obligations under State and Federal laws to review and revise, as necessary, water quality standards that are protective of surface waters.
This final-form rulemaking was adopted by the Board at its meeting of November 19, 2019.
A. Effective Date
This final-form rulemaking will be effective upon publication in the Pennsylvania Bulletin.
B. Contact Persons
For further information, contact, Thomas Barron, Bureau of Clean Water, 11th Floor, Rachel Carson State Office Building, P.O. Box 8774, 400 Market Street, Harrisburg, PA 17105-8774, (717) 787-9637; or Michelle Moses, 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 Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department of Environmental Protection's (Department) web site at www.dep.pa.gov (select ''Public Participation,'' then ''Environmental Quality Board'').
C. Statutory and Regulatory Authority
This final-form rulemaking is being made under the authority of sections 5(b)(1) and 402 of The Clean Streams Law (CSL) (35 P.S. §§ 691.5(b)(1) and 691.402), which authorize the Board to develop and adopt rules and regulations to implement the CSL (35 P.S. §§ 691.1—691.1001), and section 1920-A of The Administrative Code of 1929 (71 P.S. § 510-20), which grants to the Board the power and duty to formulate, adopt and promulgate rules and regulations for the proper performance of the work of the Department. In addition, sections 101(a)(2) and 303 of the Federal Clean Water Act (CWA) (33 U.S.C.A. §§ 1251(a)(2) and 1313) sets forth requirements for water quality standards.
D. Background and Purpose
Section 303(c)(1) of the CWA requires that states periodically, but at least once every 3 years, review and revise as necessary, their water quality standards. This final-form rulemaking constitutes this Commonwealth's current triennial review of its water quality standards.
Pennsylvania's water quality standards, which are codified in Chapters 93 and 16 (relating to water quality toxics management strategy—statement of policy), are designed to implement the requirements of sections 5 and 402 of the CSL and section 303 of the CWA. The water quality standards consist of the designated and existing uses of the surface waters of this Commonwealth, along with the specific numeric and narrative criteria necessary to achieve and maintain those uses, and an antidegradation policy. Thus, water quality standards are instream water quality goals that are implemented by imposing specific regulatory requirements—such as treatment requirements, best management practices and effluent limitations—on individual sources of pollution.
This final-form rulemaking will revise the Chapter 93 water quality standards regulations. These regulatory revisions will clarify requirements and update the regulations to be consistent with Federal guidance where indicated. This final-form rulemaking may affect persons who discharge wastewater into surface waters of this Commonwealth or otherwise conduct activities which may impact such waters.
The Department discussed this final-form triennial rulemaking with the Water Resources Advisory Committee (WRAC) on May 23, 2019. WRAC voted to concur with the Department's recommendation to present the final-form rulemaking to the Board. In addition, the Department provided to the Agricultural Advisory Board on April 25, 2019, a regulatory review that included the draft final triennial review of water quality standards.
The regulation was adopted by the Board as a proposed rulemaking at its April 18, 2017, meeting, and was published at 47 Pa.B. 6609 (October 21, 2017) with a provision for a 70-day public comment period that was scheduled to end December 29, 2017. The Board published a correction to this proposed rulemaking at 47 Pa.B. 6727 (October 28, 2017) to revise a printer error for one of the dates and locations of the public hearings as printed in the original preamble. The Board held public hearings, for the purpose of accepting comments on the proposed rulemaking, on December 6, 8 and 14, 2017, at the Department's Regional Offices in Wilkes-Barre (Northeast Region—NERO), Harrisburg (Southcentral Region—SCRO), and Pittsburgh (Southwest Region—SWRO), respectively. Public comments were received requesting the public comment period be extended, and that an additional public hearing be held in the southeast area of this Commonwealth. This request was granted and notice of this public comment period extension and additional public hearing was published at 47 Pa.B. 7852 (December 30, 2017). The additional public hearing was held on January 30, 2018, at the Department's Southeast Regional Office (SERO) in Norristown. The extended public comment period ended on February 16, 2018. Comments were received from 776 commenters including testimony from seven witnesses at the public hearings. Comments were received from the Independent Regulatory Review Commission (IRRC). The comments received on the proposed rulemaking are summarized in Section E.
The Department has considered all public comments received on the proposed rulemaking in preparing this final-form rulemaking.
Exceptions for fishable/swimmable waters
Part of the triennial review requires that states re-examine water body segments that do not meet the fishable or swimmable uses specified in section 101(a)(2) of the CWA. The Department evaluated two of the Commonwealth's waterbodies where the uses are not currently met: 1) the Harbor Basin and entrance channel to Outer Erie Harbor/Presque Isle Bay (§ 93.9x (relating to Drainage List X)); and 2) several zones in the Delaware Estuary (§§ 93.9e and 93.9g (relating to Drainage List E; and Drainage List G)).
The swimmable use designation was deleted from the Harbor Basin and entrance channel demarcated by United States Coast Guard buoys and channel markers on Outer Erie Harbor/ Presque Isle Bay because pleasure boating and commercial shipping traffic pose a serious safety hazard in this area. This decision was further supported by a Use Attainability Analysis (UAA) study conducted by the Department of Environmental Resources (DER) in 1985. Because the same conditions and hazards exist today, no change is proposed to the designated use for Outer Erie Harbor/Presque Isle Bay. The water contact sports (WC) use remains excluded from the designated uses for this portion of Lake Erie.
In April 1989, DER cooperated with the Delaware River Basin Commission (DRBC) and the United States Environmental Protection Agency (EPA) on a comprehensive UAA study in the lower Delaware River and Delaware Estuary. This study resulted in appropriate recommendations regarding the swimmable use, which the DRBC included in its regulations for water use classifications and water quality criteria for portions of the tidal Delaware River in May 1991. The appropriate DRBC standards were referenced in §§ 93.9e and 93.9g in 1994. The WC use remains excluded from the designated uses for river miles 108.4 to 81.8 because of continuing significant impacts from combined sewer overflows (CSO), and hazards associated with commercial shipping and navigation. However, the Board received comments indicating there are multiple instances where commenters have participated in and documented water contact and conducted paddling and kayaking on this stretch of the Delaware River and Delaware Estuary. Commenters suggested water contact is an existing use and should not be removed. Others commented that although the Department cites the CSOs as a reason for excluding water contact, this should be reconsidered noting the EPA policy on CSOs that was issued in 1994 and incorporated into the CWA in 2000. Commenters also point to Long-Term Control Plans that are now under development or in place for the CSOs in this portion of the Delaware River as a reason not to remove the water contact use. As suggested by commenters, the Department will initiate an effort with the DRBC to reevaluate the applicable standards to determine if the standards should include designated use protection for water contact/swimming. An updated recommendation regarding the WC use will be considered in the next triennial review of water quality standards, following outcome of this collaboration with the DRBC.
The Board also received comments on the limited uses for Zones 3 and 4, and upper Zone 5 of the Delaware Estuary, as incorporated into §§ 93.9e and 93.9g. These less restrictive uses, described in §§ 93.9e and 93.9g as Warm Water Fishes (WWF) (Maintenance Only) and Migratory Fishes (MF) (Passage Only), for tidal portions of the basin, from river mile 108.4 to the Pennsylvania-Delaware state border, date back to the original Article 301—Water Quality Criteria that were added to the Sanitary Water Board's rules and regulations in 1967. The current designated uses within these Zones do not include propagation and thus refer to the DRBC's standards which were developed to protect fish maintenance and passage only. The commenters cite recent data and observations that suggest significant improvement and recovery is occurring in propagation for some species in portions of these Zones.
Commenters also refer to the Federally endangered Atlantic sturgeon (Ancipenser oxyrhynchus) and other reproducing fish that currently live and breed in the tidal Delaware River (Zones 3—5) indicating the need for higher dissolved oxygen (DO) standards, and immediately protecting these zones for fish propagation. Commenters acknowledge the DRBC's adoption of a resolution (DRBC Res. No. 2017-4) committing DRBC to: conduct further study on the inclusion of propagation as a designated use in Zones 3 and 4 and the upper portion of Zone 5 of the Delaware Estuary; prepare a schedule for completing a full draft analysis of attainability within 3 1/2 years; and issue a final rule and an implementation strategy within 6 years of the adoption of the resolution. The commenters also refer to the Delaware Riverkeeper Network's petition to the Board to upgrade Zones 3 and 4 of the Delaware Estuary to include resident and migratory fish populations. These commenters state, however, that neither of these processes should deter the Board from fulfilling its obligation under 40 CFR 131.10(h)(2)(ii) (relating to designation of uses) to update the applicable designated uses during the current triennial review. They suggest the available data are sufficient to establish an existing use of fish propagation in Zones 3 and 4 and the upper portion of Zone 5 of the Delaware Estuary, and therefore the commenters suggest that the Board, when issuing its final rule, should change the designated use of these portions of the Delaware Estuary to match their existing use.
As described in the preamble to the proposed rulemaking, the demonstrated recovery in propagation for these Zones has occurred under the long-term implementation of the current criteria. So, in the short term, the existing DO criteria should provide adequate protection until more appropriate criteria can be determined. More recently, the Department has also become aware of improvements in water quality and propagation of key species through data presented from other programs, and from a report submitted to the DRBC by the Academy of Natural Sciences of Drexel University (ANSDU)—A Review of Dissolved Oxygen Requirements of Key Sensitive Species in the Delaware Estuary (ANSDU, November 2018; https://www.nj.gov/drbc/library/documents/Review_DOreq_KeySensSpecies_DelEstuary_ANStoDRBCnov2018.pdf)—which describes the occurrence and DO requirements of select key species, including that of the endangered species, Atlantic sturgeon (Ancipenser oxyrhynchus). This report also shows that Atlantic sturgeon are present and reproducing in these Zones of the Delaware Estuary, further reinforcing the need to reevaluate these designated uses.
Furthermore, the National Marine Fisheries Service recently designated the Delaware Estuary as critical habitat for the Atlantic sturgeon after having listed Atlantic sturgeon (Ancipenser oxyrhynchus) as Federally endangered in 2012 under the Endangered Species Act. 82 FR 39160 (August 17, 2017). Designating the Delaware Estuary as critical habitat confirms the presence, critical habitat, or critical dependence of Federal or State endangered or threatened species in or on a surface water of this Commonwealth. As such, the protections under § 93.4c(a)(2) (relating to implementation of antidegradation requirements) become relevant for the Delaware Estuary. The protections under § 93.4c(a)(2) will be provided, on a case-by-case basis, as National Pollutant Discharge Elimination System (NPDES) permits or other final approvals are issued or final actions are taken for activities in these waters.
As indicated in DRBC Res. No. 2017-4, the Department will continue to work with the DRBC and other signatory parties in determining the appropriate DO criteria that should apply to this section of the Delaware Estuary.
E. Summary of Responses to Comments and Changes to the Proposed Rulemaking
As a result of the public hearings and extended public comment period, the Board received comments from 776 commenters, including IRRC and EPA Region 3.
A more detailed summary of the comments submitted to the Board, and the Department's responses to those comments are available in the Comment and Response document that accompanies this final-form rulemaking.
A detailed description of the amendments to the Chapter 93 proposed rulemaking follows:
§ 93.1. Definitions
The Board is adding a definition for seven-day average, similar to the definitions for four-day, monthly, one-hour and thirty-day averages, as currently found at § 93.1. Seven-day average is defined as the arithmetic average of the samples collected during a consecutive 7-day period.
§ 93.7. Specific water quality criteria—Table 3
The Board is changing the following provisions in Table 3 criteria:
Ammonia criteria: In April 2013, the EPA released final recommendations for Aquatic Life Ambient Water Quality Criteria for Ammonia—Freshwater 2013 (EPA 822-R-13-001).This document can be accessed at https://www.epa.gov/wqc/aquatic-life-criteria-ammonia.
These recommendations are intended as guidance to states, territories and authorized tribes in developing water quality standards to protect aquatic life from exposure to ammonia. The Department assessed the peer-reviewed technical documentation for the recommended ammonia criteria and found it was scientifically sound and appropriate for the surface waters of the Commonwealth and, as such, the Department recommended revising the Table 3 Ammonia criteria to be fully consistent with the EPA's 2013 recommended Aquatic Life Ambient Water Quality Criteria for Ammonia—Freshwater 2013 as part of triennial review proposed rulemaking.
It should be noted that during the development of this final-form rulemaking, the EPA announced that there was a typesetting error discovered in the original EPA Aquatic Life Ambient Water Quality Criteria for Ammonia—Freshwater 2013 document (EPA 822-R-13-001). The equation to calculate the ammonia criterion maximum concentration (CMC) where Oncorhynchus species are absent was missing two parentheses which are needed to correctly calculate the criterion. This error (on page 42 of the EPA's 2013 document) did not affect the results for the criterion values presented in the original 2013 document, and the equation is correct elsewhere in the original 2013 document. The new publication number for the corrected 2013 Ammonia Criteria document is EPA-822-R-18-002.
Eight commenters indicated their support for the proposed ammonia criteria.
One commenter stated that the Department's justification for recommending the ammonia criteria was the protection of mussels, and the commenter went on to cite a Fish and Boat Commission (PFBC) study that documents the presence of endangered mussels in only 15 of Pennsylvania's 67 counties. The commenter stated that they do not operate in any of these 15 counties and they concluded that the proposed criteria are overly restrictive because there are so many areas where endangered mussel populations are not present. This same commenter did not recommend adoption of the criteria Statewide as sensitive mussel and salmonid populations do not occur throughout this Commonwealth. The commenter states that if the ammonia criteria are promulgated for application throughout Pennsylvania, then permittees that are not located on sensitive streams would then need to request site-specific criteria. The commenter reiterates that there are 52 counties where sensitive mussels do not exist, and therefore there may be a lot of permittees that could potentially apply for a site-specific criterion, thereby creating a significant burden to both the permittees and the Commonwealth's resources. The justification for proposing this criterion is that the newly developed Federal recommendations expand the freshwater toxicity database for ammonia and the national criteria recommendations are protective of the aquatic community as a whole (that is, not limited to sensitive freshwater mollusk species and salmonids). The Department agrees with the cited PFBC study that there are endangered mussels in 15 Pennsylvania counties, however there are approximately 65 species of sensitive unionid mussels throughout the entire Commonwealth along with other ammonia-sensitive species, and therefore the criteria should be promulgated Statewide.
The EPA and other commenters indicated that the proposed criterion was not consistent with how the criterion is expressed in the EPA's 2013 recommended Aquatic Life Ambient Water Quality Criteria for Ammonia—Freshwater 2013 (EPA 822-R-13-001). Based on these comments, the Board made changes in this final-form rulemaking to the ammonia criteria in Table 3. First, a clarification is made to the 30-day average period for the Criteria Continuous Concentration (CCC) to specify that it is to be calculated as a ''rolling'' average. Second, language is being modified to better describe that the highest 4-day average within the 30-day averaging period should not be more than 2.5 times the CCC (for example, 2.5 × 0.2 mg TAN/L at pH 9 and 20°C or 0.5 mg TAN/L) more than once in 3 years on average. Third, the Board changed the sample inputs for pH and TAN/L used in the previous sample calculations. Finally, the Board added language describing how to determine the pH and temperature values that are used in the equations to derive the appropriate ammonia criteria.
Bacteria criteria: The Board proposed amendments to the bacteria criteria that will include replacing the current fecal coliform-based criteria for WC during the swimming season (May 1 to September 30) with the EPA's recommended 2012 Recreation Water Quality Criteria (RWQC) (EPA 820-F-12-058) in the Commonwealth's surface waters. The Department assessed the peer-reviewed technical documentation for the EPA's recommended recreational criteria for bacteria and found it was scientifically sound and appropriate for the surface waters of the Commonwealth. The 2012 RWQC document can be accessed at https://www.epa.gov/sites/production/files/2015-10/documents/rwqc2012.pdf.
Two commenters indicated their general support of the Board's proposed amendments to the bacteria criteria. One commenter expressed the need for the thoughtful promulgation of appropriate criteria designed to be protective of the recreational use. Three commenters agreed with the Board's selection of E. coli as the indicator of fecal contamination during the swimming season, and one commenter cited scientific studies to offer further support for the Board. The EPA was pleased that the Board is adopting E. coli criteria to protect recreational waters, however the EPA noted that the proposed criterion is not fully consistent with the criteria expressions in the 2012 RWQC. Other commenters concurred with the EPA's concerns. The Board changed language in the Table 3 Bac1 criterion relating to the magnitude, duration, and frequency of the proposed bacteria criteria described in the geometric mean, and to include the missing reference to ''colony forming units'' to be consistent with the EPA's national recommendations and criteria expression. Commenters expressed concern that natural sources of E. coli could make it difficult for dischargers to meet the more stringent proposed standard and they suggested that a feasibility analysis should be conducted where there are no human activities. Data indicate that using E. coli will not result in an uncharacteristically high number of criteria exceedances. Other commenters stated concern that some industrial sectors may not be able to meet the criteria due to the presence of bacteria that are nonhuman and nonfecal in origin. The Department refers to the EPA publications which provide specific guidance for these concerns in its response on how to determine whether the standard is being attained where sources are characterized predominantly as nonhuman or nonfecal.
Many commenters expressed concern that the proposed criteria are confusing because they rely on two different indicators of fecal contamination, depending on the time of the year. It was also noted that it would be difficult to compare results and maintain consistent data year-round if the indicator is not the same year-round. Some of the commenters requested that the Board adopt E. coli standards that would apply year-round. The Board notes that two different indicators are already currently being used simultaneously, so there should be no added confusion. By collecting both E. coli and fecal coliform results, the samples could be compared to determine if there is any correlation between the two indicators. There is no change made in this triennial review for the nonswimming season part of the Bac1 criteria. For future consideration, the EPA is conducting research on a secondary contact recreational use criterion, which will apply to limited body contact, and the Department will evaluate the applicability of that criteria for the Commonwealth when it becomes available. Commenters stated that having different standards for the swimming and nonswimming seasons could be confusing to the regulated community. The existing regulations have different standards for the swimming and nonswimming seasons and there are no implementation problems.
Comments were received recommending the Board adopt a more protective risk paradigm. The 2012 RWQC provided two sets of criteria using E. coli as the indicator, and the EPA states that adoption of either set of criteria would adequately protect the designated use of primary contact recreation.
§ 93.8c. Human health and aquatic life criteria for toxic substances
Language is added to subsection (a) on this final-form rulemaking to clarify that local water quality conditions used in calculating equation-based criteria will be gathered using Department data collection protocols.
The human health criteria in Table 5 was proposed to be updated to reflect the latest scientific information and implementation of existing EPA policies in the Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (2000) (EPA-822-B-00-004). The proposed updates included new scientifically based exposure factors for body weight (80 kilograms), drinking water consumption rate (2.4 liters per day) and fish consumption rate (22.0 grams per day). After a thorough review of the 94 individual recommended criteria updates by the EPA, the updated criteria for 73 compounds and the addition of 11 new human health compounds to Table 5 were proposed to be adopted. There were ten EPA-recommended criteria that were the same as the criteria currently in Table 5, so therefore, no change was recommended for these criteria.
Pollutants in Table 5 were proposed to be clarified to have human health criteria that will remain based on the exposure inputs of 2 liters per day of drinking water and consumption of 17.5 grams of fish per day for the protection of a 70-kilogram person, due to the unavailability of information needed to calculate criteria according to new exposure assumptions.
Based on the EPA comments, several differences between the values of the proposed changes in Table 5 and the EPA-recommended values have been identified, particularly with respect to nickel, chlorophenoxy herbicide (2,4-D), 1,1-dichloroethylene and chloroform. In response to these comments, the Board will not make the proposed amendment to nickel. It will remain at its existing value of 610 ug/L.
The EPA identified that the proposed 1,000 ug/L criterion for chlorophenoxy herbicide (2,4-D) was an error. EPA's recommended criterion for chlorophenoxy herbicide (2,4-D) is rounded from 1,371 ug/L to 1,300 ug/L. This compound has low potential for bioaccumulation (that is, low exposure from ingestion of fish and shellfish), and the EPA has not established bioaccumulation factors (BAF's) for chlorophenoxy herbicide (2,4-D) according to trophic levels due to lack of data. The Department disagrees with the EPA's rounding of the criterion, as the suggested rounding does not follow the generally accepted rounding conventions. Therefore, the Board is adopting a final criterion of 1,400 ug/L.
The EPA recommended 300 ug/L for 1,1-dichloroethylene. Under the 1986 EPA Guidelines for Carcinogen Risk Assessment, 1,1-dichloroethylene is classified as a Group C compound, ''possible human carcinogen.'' Because the EPA has not identified a cancer slope factor for this compound, the Department applied a safety factor of 10 to the recommended criterion of 300 ug/L for protection from carcinogenic effects. Because the difference between the recalculated and existing criterion is insignificant, the existing criterion of 33 ug/L is considered protective. The Board inadvertently proposed 30 ug/L, but is maintaining the existing criterion.
There is a significant difference between the EPA-recommended criterion for chloroform and the Board's proposed criterion. Due to the significance of the difference between the values, and the absence of adequate documentation to support this difference, the Board is withdrawing its proposed change to chloroform. The Department will evaluate whether a change to the standard is appropriate during the next triennial review.
The EPA additionally commented on 11 criteria devel- oped by the Department for which there are currently no EPA-recommended criteria. The EPA requested additional clarification as to the scientific basis for these proposed revisions, including criteria for: 1,2 cis dichloroethylene; acetone; boron; formaldehyde; methyl ethyl ketone; metolachlor; resorcinol; 1,2,3-trichloropropane; 1,2,4-trimethylbenzene; 1,3,5-trimethylbenzene; and xylene. The EPA, however, did not comment on the proposed barium criterion. The Board is withdrawing the proposed criteria for these substances due to the limited documentation on the development and justification for revising the criteria. Instead, the Department will evaluate these criteria in the next triennial review.
The EPA noted several differences between their recommended criteria and the Board's proposed criteria, which relate to significant figures. Thus, the Board modified the criteria for the following pollutants to be consistent with the EPA's recommendations: 1,2-Diphenylhydrazine; cyanide; 2 methyl-4,6-dinitrophenol; acrolein; 1,3-dichlorobenzene; hexachlorocyclopentadiene; and endrin aldehyde.
The EPA also commented that the Board should adopt other criteria for which the EPA has published new or updated CWA section 304(a) recommendations since May 30, 2000. As revised in 2015, the EPA's regulations governing water quality standards provide that ''if a State does not adopt new or revised criteria for parameters for which EPA has published new or updated CWA section 304(a) criteria, then the State shall provide an explanation for why it did not when it submits the results of its triennial review to the Regional Administrator.'' See 40 CFR 131.20(a) (relating to State review and revision of water quality standards) and 80 FR 51020 and 51028 (August 21, 2015), explaining that this requirement applies to ''new or revised criteria for parameters for which the EPA has published new or updated CWA section 304(a) criteria recommendations since May 30, 2000.'' Specifically, the Board did not propose criteria for the following EPA recommendations: 2016 recommended aquatic life criteria for selenium (freshwater); 2016 recommended aquatic life criteria for cadmium; 2012 recommended aquatic life criteria for carbaryl; 2004 recommended aquatic life criteria for tributyltin (TBT); or 2002 recommended human health criteria for selenium, nitrosodibutylamine (CAS No. 924163), nitrosodiethylamine (CAS No. 55185), and nitrosopyrrolidine (CAS No. 930552).
The Department will evaluate these referenced recommended criteria during the next triennial to determine appropriate recommendations for waters in the Commonwealth.
Although there is no change on this final-form rule- making, the Board is finalizing a proposed regulation for the Chromium VI aquatic life criterion to be consistent with the EPA recommendations in 1995 Updates: Water Quality Criteria Documents for the Protection of Aquatic Life in Ambient Water (EPA-820-B-96-001), available at https://nepis.epa.gov/Exe/ZyPDF.cgi/20002924.PDF?Dockey=20002924.PDF.
§ 93.8d. Development of site-specific water quality criteria
Supportive comments were received on the proposed rulemaking to add to § 93.8d(c) that the Department may require the use of the Biotic Ligand Model (BLM) for the development of new or updated site-specific criteria for copper in freshwater systems. Additionally, comments were received asking that the Board identify in this final-form rulemaking the circumstances when the use of the BLM will be required. The EPA commented on related revisions to 25 Pa. Code § 16.24 (relating to metals criteria) in the proposed Chapter 16 Water Quality Toxics Management Strategy—Statement of Policy that Pennsylvania should clarify that the BLM can be required for development of site-specific criteria. The EPA also commented that Pennsylvania should consider adopting Statewide freshwater copper criteria based on the BLM. The Board acknowledges the BLM is the most current science for development of the criteria for copper, as opposed to the Water-Effect Ratio (WER) methodology. Although the Board is not adopting Statewide criteria based on the BLM in this final-form rulemaking, this final-form rulemaking adds clarification that the BLM will be required for development of site-specific water quality criteria for copper in freshwater systems.
Corrections to stream drainage lists
Amendments were proposed to the drainage lists to clarify stream names and segment boundaries and to reformat portions of drainage lists. Reformatting large basins to consolidate portions of Chapter 93 that have the same designated use enables readers to view that entire basin within a page or two and it should also decrease the errors in the drainage lists. In addition, the Board modified stream names in the drainage lists to be consistent with the National Hydrography Dataset (NHD) flowline. The Board made corrections to the designated uses of some streams where it has sufficient documentation to demonstrate that an error has occurred and what the correct designated use ought to be, based upon previous Department recommendations. These additional changes are nonsubstantive because they do not change any current designated uses in the drainage lists.
A comprehensive description of the comments received and the responses that the Department provided are available in the Comment and Response Document. Numerous comments were received pertaining to these proposed corrections to the drainage lists. The EPA requested clarification on several revisions to ensure that the designated use will not be altered. Commenters, in response to the EPA's comment, stated that a UAA needs to be conducted every time a stream is being downgraded. Commenters further concurred with the EPA's concerns about potential downgrades in Drainage Lists G, L, M, O and R. The Department did not complete a UAA as it is not recommending any changes or less restrictive uses to the designations of any waters as a result of this rulemaking. Rather, the Department is merely correcting documented errors in the drainage lists.
§ 93.9b. Drainage List B
One commenter noted that according to the Geographic Names Information System data for Pennsylvania updated in July 2017, the stream source for the Lackawaxen River is the confluence of West Branch Lackawaxen River and Dyberry Creek at 41.57751° N/75.253680° W. The NHD flowline incorrectly identifies the origin of Lackawaxen River at the confluence of West Branch Lackawaxen River and Van Auken Creek. Van Auken Creek is a tributary to West Branch Lackawaxen River and should have a 4 for hydrological order rather than a 3, as indicated in the NHD. The Department notified the United States Geological Survey, the agency that manages the NHD. The NHD Flowline has since been corrected. Corresponding corrections to this section have been made in the Annex A of this final-form rulemaking.
§ 93.9g. Drainage List G
Forty-five commenters requested a more thorough explanation of the Board's proposal to restore the correct designated use to the waters that are historically known in Pennsylvania as Goose Creek. Most of these commenters wanted to know if the Department has considered a UAA, as they perceived this correction to be a redesignation to a less restrictive use. A final-form rulemaking was correctly published at 15 Pa.B. 544 (February 16, 1985) which redesignated the aquatic life use of the basin locally known as Goose Creek from Trout Stocking (TSF) to WWF. The correct aquatic life designated use for the ''Goose Creek'' portion of Chester Creek is WWF. In the Comment and Response Document, the Department's response includes a comprehensive summary explaining how a subsequent rulemaking, which was finalized at 27 Pa.B. 3050 (June 28, 1997), effectively transposed the designated uses for Goose Creek and Unnamed Tributary 00605 (UNT 00605) to East Branch Chester Creek. The designation for UNT 00605 to East Branch Chester Creek is being corrected to TSF in this final-form rulemaking. This change is included as part of the basin designation for East Branch Chester Creek. The designation in the existing regulations appears incorrectly as WWF for 4-Westtown Run in this section.
This correction for Goose Creek in the Chester Creek basin is not a redesignation to a less restrictive use. In this most recent review, the Department is not relying on the Commonwealth's water quality standards in § 93.4(b) and does not need to complete a UAA because Goose Creek is not amended to a less restrictive use as part of this triennial review. This correction rectifies the transposition of designated uses that occurred in 1997 and restores the appropriate designation as originally published at 15 Pa.B. 544.
Comments were received pertaining to UNT 00322 to East Branch Brandywine Creek for which the aquatic life use is currently designated High Quality (HQ) Waters-TSF, Migratory Fishes (HQ-TSF, MF). The commenters questioned whether the aquatic life use of this stream was intended to be redesignated. This rulemaking does not change the designated use of UNT 00322. To clarify, UNT 00322 has the same designation (HQ-TSF, MF), and the mouth of UNT 00322 is the downstream limit of the zone that includes the basins of Shamona Creek and other tributaries, including UNT 00322 in this zone to East Branch Brandywine Creek. This is described in the Comment and Response Document that accompanies this final-form rulemaking.
Commenters noted their perception that Beaver Creek was being redesignated. The designated use of Beaver Creek is not being changed.
§ 93.9o. Drainage List O
An entry of Migratory Fishes (MF) was added to this section for the Trout Run (stream code = 10815) basin from the water supply dam to the mouth which includes its designated aquatic life use as HQ-Cold Water Fishes (CWF), as it was missing from the drainage list. A comment was received stating that the Department needs to provide additional documentation to support this revision as it is unclear from the information in the preamble of the proposed rulemaking that this is the correct designation. The entire Trout Run basin, including the lower portion from the dam to the mouth, was designated as a conservation area. The Conservation Areas were generally converted to High Quality Waters use and Wilderness Trout Waters to Exceptional Value Water use in a final rulemaking in 1979. Therefore, the aquatic life use of the entire basin was established as HQ-CWF. The portion of the basin upstream of the water supply dam was then classified as a Wilderness Trout Stream, and the aquatic life use of that portion of the basin was subsequently converted to EV in 1979.
The MF designated use for Trout Run was added as a result of the Commonwealth's 2009 Triennial Review of Water Quality Standards. A basin-wide MF designation was added to the Atlantic slope basin (drainage lists A through O and Z), and was published at 39 Pa.B. 2523 (May 16, 2009).
§ 93.9r. Drainage List R
One commenter noted that the proposed rulemaking deleted the stream name for Mill Run but did not provide any indication as to why the listing is erroneous. The stream in question is actually Mill Creek (stream code = 49706). The preamble erroneously referred to ''Mill Run'' not ''Mill Creek'' as listed in proposed amendments to this section.
F. Benefits, Costs and Compliance
Overall, the Commonwealth, its citizens and natural resources will benefit from these amendments because they provide the appropriate level of protection to preserve the integrity of existing and designated uses of surface waters in the Commonwealth.
Protecting water quality also provides economic value to present and future generations in the form of clean water for multiple water supply uses, recreational opportunities, and human health and aquatic life protection. It is important to realize all benefits and to ensure that activities that depend on surface water or that may affect the chemical, biological and physical integrity of those waters occur in a manner that is environmentally, socially and economically sound.
The amendments to Chapter 93 may impose additional compliance costs on the regulated community. These regulatory changes are necessary to improve total pollution control. The expenditures necessary to meet new compliance requirements may exceed that which is required under existing regulations.
Persons conducting or proposing activities or projects must comply with the regulatory requirements relating to designated and existing uses and updated water quality criteria. Persons expanding a discharge or adding a new discharge point to a stream could be adversely affected if they need to provide a higher level of treatment to meet more stringent criteria for selected parameters. These increased costs may take the form of higher engineering, construction or operating costs for facilities. Treatment costs and best management practies are site-specific and depend upon the size of the discharge in relation to the size of the stream and many other factors. Therefore, it is not possible to precisely predict the actual change in costs. Economic impacts would primarily involve the potential for higher treatment costs for implementing new or more stringent water quality criteria. The initial costs from technologically improved treatments or best management practices may be offset over time by potential savings from and increased value of improved water quality.
Compliance assistance plan
This final-form rulemaking has been developed as part of an established program that has been implemented by the Department since the early 1980s. This final-form rulemaking is consistent with and based on existing Department regulations relating to compliance.
This final-form rulemaking will be implemented, in part, through the NPDES permitting program. No additional compliance actions are anticipated. Staff is available to assist regulated entities in complying with the regulatory requirements if questions arise.
This final-form rulemaking should have no significant paperwork impact on the Commonwealth, its political subdivisions or the private sector.
G. Pollution prevention
The Federal Pollution Prevention Act of 1990 (42 U.S.C.A. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally-friendly materials, more efficient use of raw materials or the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance. This final-form rulemaking has incorporated the following pollution prevention provisions and incentives:
Water quality standards are a major pollution prevention tool because they protect water quality and designated and existing uses. The final regulations will be implemented through the Department's permit and approval actions. For example, the NPDES bases effluent limitations and best management practices on the water uses of the stream and the water quality criteria necessary to protect and maintain those uses.
H. Sunset Review
The Board is not establishing a sunset date for these regulations, since they are needed for the Department to carry out its statutory authority. The Department will continue to closely monitor these regulations for their effectiveness and recommend updates to the Board as necessary.
I. Regulatory Review
Under Section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on October 6, 2017, the Department submitted a copy of the notice of proposed rulemaking, published at 47 Pa.B. 6609, with related corrections and updates published at 47 Pa.B. 6727 and 47 Pa.B. 7852, to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment.
Under Section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing the final-form rulemaking, the Department has considered all comments from IRRC, the House and Senate Committees and the public.
On January 22, 2020, the House Environmental Resources and Energy Committee issued a disapproval notification of this final-form rulemaking, triggering a 14-day review period after IRRC consideration of the rulemaking under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)). Under section 5.1(e) of the Regulatory Review Act, IRRC met on January 31, 2020, and approved the final-form rulemaking.
On February 4, 2020, the House Environmental Resources and Energy Committee voted to report a concurrent resolution to disapprove the final-form rulemaking approved by IRRC to the General Assembly under section 7(d) of the Regulatory Review Act (71 P.S. § 745.7(d)). The concurrent resolution was not passed by the General Assembly within 30 calendar days or 10 legislative days from the reporting of the concurrent resolution, and therefore this final-form regulation may be promulgated.
J. 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), known as the Commonwealth Documents Law and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).
(2) A public comment period was provided as required by law. In addition, Board hearings were held. All comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 47 Pa.B. 6609, 47 Pa.B. 6727 and 47 Pa.B. 7852.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.
K. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending §§ 93.1, 93.7, 93.8a, 93.8c—93.8e, 93.9b—93.9g, 93.9j—93.9t, 93.9v—93.9x and 93.9z to read as set forth in Annex A with ellipses referring to the existing text of the regulations.
(Editor's Note: Section 93.1 was not included in the proposed rulemaking published at 47 Pa.B. 6609.)
(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.
(Editor's Note: See 50 Pa.B. 1001 (February 15, 2020) for IRRC's approval order.)
(Editor's Note: For a statement of policy relating to this final-form rulemaking, see 50 Pa.B. 3485 (July 11, 2020).)
Fiscal Note: Fiscal Note 7-534 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.
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Risk management—The process of evaluation and selection between alternative regulatory options. Risk management decisions may include consideration of risk assessment, analytical, socio-economic and political factors.
Seven-day average—The arithmetic average of the samples collected during a consecutive 7-day period.
State game propagation and protection area—An area established by the Game Commission for the propagation and protection of game or wildlife wherein game or wildlife may not be hunted, pursued, disturbed, molested, killed or taken at any time except as authorized by the Game Commission.
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WATER QUALITY CRITERIA
§ 93.7. Specific water quality criteria.
(a) Table 3 displays specific water quality criteria and associated critical uses. The criteria associated with the Statewide water uses listed in § 93.4, Table 2 apply to all surface waters, unless a specific exception is indicated in §§ 93.9a—93.9z. These exceptions will be indicated on a stream-by-stream or segment-by-segment basis by the words ''Add'' or ''Delete'' followed by the appropriate symbols described elsewhere in this chapter. Other specific water quality criteria apply to surface waters as specified in §§ 93.9a—93.9z. All applicable criteria shall be applied in accordance with this chapter, Chapter 96 (relating to water quality standards implementation) and other applicable State and Federal laws and regulations.
Parameter Symbol Criteria Critical Use* Alkalinity Alk Minimum 20 mg/l as CaCO3, except where natural conditions are less. Where discharges are to waters with 20 mg/l or less alkalinity, the discharge should not further reduce the alkalinity of the receiving waters. CWF,
Am In freshwater, the concentration of total ammonia nitrogen (TAN) shall not exceed (more than once in three years on average), the concentration calculated (in milligrams of TAN per liter) by the following:
1-hour average Criteria Maximum Concentration (CMC) acute criterion equation:
30-day rolling average Criteria Continuous Concentration (CCC) chronic criterion equation:
The highest 4-day average within the 30-day averaging period should not be more than 2.5 times the CCC (e.g. 2.5 × 0.2 mg TAN/L at pH 9 and 20°C or 0.5 mg TAN/L) more than once in 3 years on average.
The pH and temperature used to derive the appropriate ammonia criteria shall be determined by instream measurements or best estimates, based on reference waters that are representative of the median pH and temperature of the receiving water. Instream measurements for pH and temperature will be gathered using department data collection protocols. Bacteria Bac1 (Escherichia coli colony forming units per 100 milliliters (CFU per
100 ml)) During the swimming season (May 1 through September 30), the maximum E. coli level shall be a geometric mean of 126 CFU per 100 ml. The geometric mean for the samples collected in the waterbody should not be greater than 126 CFU per 100 ml in any 30-day interval. There should not be greater than a 10% excursion frequency of
410 CFU per 100 ml for the samples collected in the same 30-day duration interval. (Fecal coliforms/100 ml) For the remainder of the year, the maximum fecal coliform level shall be a geometric mean of 2,000 CFU per 100 ml based on a minimum of five consecutive samples collected on different days during a 30-day period.
WC Chloride Ch Maximum 250 mg/l. PWS * * * * *
§ 93.8a. Toxic substances.
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(b) Water quality criteria for toxic substances shall be established as described under Chapter 16 (relating to water quality toxics management strategy—statement of policy). The Department will develop water quality criteria for toxic substances not listed in Chapter 93, Table 5 in accordance with § 93.8d (relating to development of site-specific water quality criteria) and Chapter 16. The Department will maintain a publicly available online table of site-specific human health and aquatic life criteria that have been recently developed or adopted by the Department based on approved methodologies and the best scientific information currently available. For any analytical procedures or detection limits that are not EPA approved, the approved analytical procedures and detection limits for these substances will also be listed in Chapter 16. Chapter 16, along with changes made to it, is hereby specifically incorporated by reference.
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(j) The requirements for discharges to and antidegradation requirements for the Great Lakes System are as follows:
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(3) Statewide antidegradation requirements in this chapter and Chapter 96 (relating to water quality standards implementation) as applicable, apply to all surface waters of the Great Lakes System.
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§ 93.8c. Human health and aquatic life criteria for toxic substances.
(a) Table 5 and the table of site-specific criteria maintained by the Department list the aquatic life and human health criteria for toxic substances which the Department uses in development of effluent limitations in NPDES Permits and for other purposes. The human health criteria, which include probable modes of exposure (such as, but not limited to ingestion from drinking water and fish consumption, inhalation and dermal absorption), are further defined as to the specific effect (that is, cancer or threshold health effects). For those aquatic life criteria which are a function of local water quality conditions and are specified as a formula, such as several of the heavy metals, the values used for the local water quality condition to derive the appropriate water quality criteria shall be determined by instream measurements or best estimates based on reference waters that are representative of the median concentrations or conditions of the receiving water for the applicable time period and design conditions. Instream measurements for the water quality condition will be gathered using department data collection protocols. The priority pollutants are a set of specific chemical pollutants regulated by EPA. The priority pollutant numbers (PP NO) used by the EPA to identify priority pollutants are included in Table 5 for reference purposes. The toxics without a PP NO are nonpriority pollutants or State-derived criteria.
(b) Some of these criteria may be superseded for the Delaware Estuary, Ohio River Basin, Lake Erie Basin, and Genesee River Basin under interstate and international compact agreements with the Delaware River Basin Commission, Ohio River Valley Sanitation Commission and International Joint Commission, respectively. Water quality criteria for the Great Lakes System are contained in § 93.8e (relating to special criteria for the Great Lakes System) and Table 6 (relating to Great Lakes Aquatic Life and Human Health Criteria). Criteria in Table 5 may apply to the Great Lakes System for those substances not listed in Table 6. Criteria may be developed for the Great Lakes System for substances other than those listed in Tables 5 and 6, under the methodologies in § 16.61 (relating to special provisions for the Great Lakes system).
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