PROPOSED RULEMAKING

[25 PA. CODE CHS. 92, 93 AND 95]

Water Quality Amendments--Antidegradation

[27 Pa.B. 1459]

   The Environmental Quality Board (Board) proposes to amend Chapters 92, 93 and 95 (relating to National Pollutant Discharge Elimination System; water quality standards; and wastewater treatment requirements) to read as set forth in Annex A. The proposed regulatory changes consolidate the antidegradation requirements in the water quality standards regulations in Chapter 93.

   This notice is given under Board order at its meeting of January 21, 1997.

A.  Effective Date

   These amendments will be effective upon publication in the Pennsylvania Bulletin as final rulemaking.

B.  Contact Persons

   For further information, contact Edward R. Brezina, Chief, Division of Water Quality Assessment and Standards, Bureau of Watershed Conservation, P. O. Box 8555, Rachel Carson State Office Building, 10th Floor, 400 Market Street, Harrisburg, PA 17105-8555, (717) 787-9637 or William J. Gerlach, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, 9th Floor, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users) and request that the call be relayed. This proposal is available electronically through the Department of Environmental Protection's (Department's) Web site (http://www.dep.state.pa.us).

C.  Statutory Authority

   These proposed amendments are made under the authority of the following acts: sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402); and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grant to the Board the authority to develop and adopt rules and regulations to implement the provisions of The Clean Streams Law.

D.  Background of the Amendment

   The Commonwealth's Water Quality Standards, which are set forth in part in Chapter 93, implement the provisions of sections 5 and 402 of The Clean Streams Law and section 303 of the Federal Clean Water Act (33 U.S.C.A. § 1313). Water quality standards consist of the designated uses of the surface waters of this Commonwealth and the specific numeric and narrative criteria necessary to achieve and maintain those uses. In addition to protection of uses, portions of the regulations focus on preventing degradation to high quality and natural quality waters.

   The Federal antidegradation requirements at 40 CFR 131.12 provide for three tiers of water quality protection. Under Tier 1, existing instream water uses and the level of water quality necessary to protect and maintain the existing uses must be maintained and protected. This level of protection is defined by meeting established water quality criteria and is applicable to all surface waters. Tier 2 or High Quality Waters are to be maintained and protected at existing quality unless lowering of water quality is necessary to accommodate important economic or social development in the area in which the surface water is located. Where surface waters of high quality constitute an Outstanding National Resource Water (ONRW), that water quality shall be maintained and protected (Tier 3). In the current Commonwealth program, Exceptional Value Waters are more broadly defined than the Federal Tier 3 definition.

   The Commonwealth has implemented an effective and protective antidegradation program since 1968, when a ''Conservation Area'' use designation was included in the water quality standards regulations. The Environmental Protection Agency (EPA) approved the Commonwealth's antidegradation program in 1981.

   On February 12, 1994, the then Department of Environmental Resources completed its Triennial Review of Water Quality Standards. The EPA generally lauded the Commonwealth's antidegradation program as an ''excellent vehicle to protect valuable resources'' but disapproved portions of it on June 6, 1994. In response to the EPA's disapproval, the Department solicited comments on the Special Protection (Antidegradation) Waters program at a public meeting on January 11, 1995, and a public hearing on April 20, 1995. With the assistance of a professional facilitator, the Department convened a group of interested stakeholders representing conservationists, the regulated community and government in a regulatory negotiation (Reg Neg) process. The Department committed to use all consensus reached by the group in drafting new regulations. Meetings with the Reg Neg group began in June 1995 and continued monthly thereafter until August 1, 1996. In addition, smaller workgroup meetings to address specific issues were held between the main meetings. The group signed a Phase I Interim Report on April 1, 1996, and presented it to Secretary Seif on May 6, 1996. That report describes some issues on which conditional consensus had been reached and the issues remaining to be resolved. At its August 1, 1996, meeting, the Reg Neg group reached the conclusion that they were at an impasse on several outstanding issues. The Reg Neg group agreed to submit separate reports to the Department and the Reg Neg process was concluded. These reports were submitted to the Department during the week of August 19, 1996.

   On April 16, 1996, the United States District Court for the Eastern District of Pennsylvania ordered the EPA to promptly promulgate proposed Federal regulations for the Commonwealth's antidegradation program. On May 13, 1996, at a status conference on the matter, the EPA proposed, and Judge Louis C. Bechtle, Jr. accepted, a schedule requiring that proposed Federal antidegradation regulations for the Commonwealth be completed and signed by the EPA Administrator by August 26, 1996. The EPA met that obligation. Proposed Federal regulations were published in the Federal Register on August 29, 1996 (61 FR 45379). The EPA provided a public comment period and held a public hearing on the proposed regulations on October 16, 1996. Final Federal regulations were published in the Federal Register on December 9, 1996 (61 FR 64816).

   The Department initially prepared a draft proposal based on the Reg Neg group's April 1, 1996, Phase I Interim Report. The Phase I Interim Report was an informed, thoughtful consideration by a representation of diverse public viewpoints on the antidegradation program and served as a good starting point for new regulations because it incorporated extensive public input. The draft proposal was made available for public comment. The public comment period concluded with a public hearing on June 18, 1996, in Harrisburg. Ten persons provided oral testimony at the public hearing, and 107 persons sent written comments.

   Most public comments were provided by members of the conservation community, and expressed a common viewpoint. Many comments urged no weakening of regulations to protect High Quality and Exceptional Value Waters, no degradation and/or no discharge to these waters, and use of waste minimization and pollution prevention techniques. The comments generally recommended adoption of the Federal Tier 1 language to protect existing uses; a broader definition for High Quality Waters that provides for more waters receiving Tier 2 protection, including Class A Wild Trout Streams; expressed concerns with the biological test and use of assimilative capacity in High Quality Waters; and expressed support for a stringent Exceptional Value Waters program. Other comments supported adopting the Federal definition for ''Tier 3'' waters and a stronger public participation process.

   Following the public hearing, the Department considered the public comments and the reports submitted by the parties participating in the Reg Neg process in the preparation of recommendations to the Board for these proposed amendments.

   The Department also has prepared an accompanying Proposed Statement of Policy (Chapter 15) that contains implementation procedures for antidegradation in support of the proposed amendments. Notice of the Proposed Statement of Policy appears at 27 Pa.B. 1473 (March 22, 1997).

E.  Summary of Regulatory Revisions

Section	Brief Description of Proposed Revision
92.81 & 92.83	General NPDES permits and inclusion of individual dischargers in general NPDES permits: These sections currently preclude the use of general NPDES permits in ''special protection'' waters. Following consideration of discussions of the Reg Neg group, these sections are proposed to be amended to allow limited use of certain general permits in High Quality Waters. The restriction on the use of general permits in Exceptional Value Waters is not proposed to be changed.
93.1	Definitions: The Federal definition for ''High Quality Waters (HQ)'' is proposed to be added. The proposed definition for ''Exceptional Value Waters (EV)'' is very similar to the current Pennsylvania definition and includes outstanding National, State, regional and local waters. The ''Exceptional Value Waters'' definition is more encompassing than the Federal definition which focuses only on Outstanding National Resource Waters (ONRW). A definition of ''surface waters'' is added to clarify the scope of Pennsylvania waters subject to the water quality antidegradation standards. ''Natural quality'' is defined as conditions in the absence of human related activities.
	Neither the definition of ''Exceptional Value Waters'' nor any other part of the proposal resolves the EPA disapproval issue whereby the EPA policy interprets that protection of ONRWs must be accomplished by prohibiting all but certain temporary discharges to these waters. In response to the EPA's disapproval on this point, the Department stated that there is no legal, regulatory or statutory basis for that policy.
93.3	Protected water uses: High Quality and Exceptional Value Waters are proposed for deletion as protected uses. This is consistent with Federal regulations which do not require antidegradation categories to be defined as protected uses. Under the proposed regulation, HQ and EV Waters would be antidegradation management categories.
	The Department would continue to assess waters, evaluate the technical data, and make recommendations to the Board under the existing regulatory process for formal designation as HQ or EV Waters. The Department evaluated options for varying levels of Board participation in the antidegradation classification, but determined that, since the Department already protects the surface water under consideration after evaluation of technical data, there would be no benefit in removing the designation process from the Board.
93.4	Statewide water uses: Subsection (c) is proposed for amendment by deleting the words ''under subsection (b)'' to make clear that in no case may waters be redesignated to less restrictive uses than existing uses.
	Subsection (d) is proposed to be deleted from this section and placed in the new § 93.4a to address protection of existing uses (Tier 1) and interim protection for High Quality and Exceptional Value Waters as part of the antidegradation requirements.
93.4a--93.4e	Antidegradation requirements: These proposed new sections include all elements of the antidegradation requirements, including the portions currently housed in various sections in this chapter and Chapter 95 (relating to wastewater treatment requirements).
93.4a	Existing uses: This section provides a description of the level of protection for surface waters and states that existing uses are protected when the Department establishes, after evaluation of technical data, that an existing use is being or has been attained. The language has been developed to respond to EPA's disapproval of the current language regarding protection of existing uses. Protection of Federal and Pennsylvania threatened and endangered aquatic species and their critical habitat is assured by explicitly stating the Department's authority to use all necessary measures, specifically limiting mixing areas, in permitting discharges that may impact these species. This replaces the current practice of using endangered species as a qualifier for Exceptional Value Waters. The EPA holds that the water quality criteria are protective of endangered species and there is no explicit Federal antidegradation regulation for special protection of endangered species. With the additional language, endangered and threatened species will, therefore, be adequately protected under Tier 1.
93.4b	High Quality Waters: This section addresses High Quality Waters. Subsection (a) establishes chemical (generally better than water quality criteria or natural quality) and biological tests as qualifiers for High Quality Waters. The chemistry test is water quality better than criteria for a list of chemical parameters or natural quality. The biology test is based on the EPA's Rapid Bioassessment Protocol or other peer-reviewed procedures, or a Class A Wild Trout Stream which has been publicly participated and designated by the Fish and Boat Commission. Subsection (b) describes the level of protection (maintain and protect water quality) for HQ Waters unless there is important social or economic justification to lower water quality and the benefits to the public outweigh any expected water quality degradation. Subsection (c) provides that the combination of discharges to HQ Waters shall meet water quality standards. Subsection (d) specifies that sewage treatment facilities designed to correct documented public health or pollution hazards are deemed to satisfy the social or economic justification (SEJ) requirement. Subsection (e) specifies that newly proposed sewage facilities which satisfy the SEJ requirements at the planning stage need not redo the demonstration at the discharge permitting stage unless the project has materially changed, or the technology, applicable laws or regulations have changed. Subsection (f) provides that the use of up to 25% of the water's assimilative capacity from all existing and anticipated sources maintains and protects water quality, and dischargers utilizing that portion of assimilative capacity or under NPDES General Permits need not comply with the SEJ requirements.
	The Board specifically seeks comment and suggestions on the following issues: (1) implementation of the proposed balancing between lowering water quality and the social or economic benefit in High Quality Waters and (2) the criteria used for determining SEJ.
93.4c	Exceptional Value Waters: This section addresses Exceptional Value Waters. Subsection (a) establishes chemical and biological tests as qualifiers for Exceptional Value Waters that include the same criteria and procedures as the qualifiers for High Quality Waters, except the biology test must indicate ''outstanding'' aquatic communities, and the alternate biology test is designation as a Wilderness Trout Stream by the Fish and Boat Commission. Subsection (b) provides that water quality in EV Waters be maintained and protected.
93.4d	General requirements for High Quality and Exceptional Value Waters: This section includes provisions common to High Quality and Exceptional Value Waters. Subsection (a) provides that discharges to HQ or EV Waters must evaluate and use alternatives to stream discharge that are environmentally sound and cost-effective, and use best technologies. Subsection (b) provides that the Department will implement programs that promote cost-effective and reasonable best management practices for nonpoint sources. Subsection (c) provides that HQ and EV Waters shall be listed following completion of regulatory designation by the Board. Finally, subsection (d) provides interim protection for waters determined by the Department's technical evaluation to qualify for HQ or EV Waters, pending their designation.
93.4e	Public participation in High Quality and Exceptional Value Waters: This section adds specific public participation requirements to the antidegradation program. Public participation is provided on five separate occasions: 1) with a provision for submittal to the Department of a complete antidegradation evaluation report at the same time a redesignation petition is submitted to the Board; a complete report may take the place of the Department's field evaluation of a water and the Department will determine if the report supports the requested antidegradation classification; 2) prior to the Department's assessment of waters to seek input and comments; 3) during the sewage facility planning process; 4) at the time of a proposed discharge; and 5) by requiring a public hearing for proposed discharges to Exceptional Value Waters. This ''early and often'' public participation expands the opportunities for public input to the antidegradation process.
	The Board seeks comment on if and in what way the public participation provisions for EV Waters should be expanded.
93.7	Specific water quality criteria: Table 5 is proposed to be revised to delete High Quality and Exceptional Value Waters as protected uses, and to add a new Table 5a to contain the specific criteria for the antidegradation categories.
93.9a--93.9z	Drainage lists: The drainage lists are proposed to be amended to delete ''HQ'' and ''EV'' from the Water Uses Protected Column and instead list the designated use (WWF, CWF, TSF, and the like). Exceptional Value Waters and High Quality Waters are proposed to be listed in a new column in the drainage lists.
95.1	General wastewater treatment requirements: Subsections (b)--(d), which discuss High Quality and Exceptional Value Waters, are proposed to be deleted and repositioned as modified in the new §§ 93.4a--93.4e.

   The purpose of these regulatory amendments is to address the concerns upon which the EPA based its June 6, 1994, disapproval, and to be consistent with Federal requirements, while, at the same time, using the public input from the Reg Neg effort and public comments to re-engineer an antidegradation program which addresses concerns specific to this Commonwealth.

   The Reg Neg process has involved and informed the public of the purpose, requirements, costs and consequences of adoption of the proposed regulations. Furtherpublic input was solicited through the public comment period and public hearing held by the Department prior to preparation of the proposed regulations. Additional public comments will be requested as part of the rulemaking process.

F.  Benefits, Costs and Compliance

   Executive Order 1996-1 requires a cost/benefit analysis of the proposed regulations.

   Benefits--Overall, the citizens of this Commonwealth will benefit from these recommended changes because they will provide appropriate protection of surface waters in the Commonwealth, including existing uses and High Quality and Exceptional Value waters. The proposed antidegradation program addresses the EPA's disapproval of certain antidegradation provisions and provides an antidegradation program which reflects the input of the Reg Neg stakeholders and public comment and addresses concerns specific to this Commonwealth.

   Compliance Costs--New, additional or increased discharges to special protection waters may require alternate disposal methods, installation of higher technology, or more stringent effluent limitations than discharges to Tier 1 waters, and compliance costs may be higher for those proposing new, additional or increased discharges to such waters.

   The changes may have some fiscal impact on or create additional compliance costs for the Commonwealth, political subdivisions, local governments and the private sector planning new, additional or increased wastewater discharges to High Quality or Exceptional Value Waters. The number of affected discharges cannot be determined because of the uncertainty in which waters will be evaluated as High Quality and Exceptional Value Waters, and because future discharges cannot be known.

   Compliance Assistance Plan--The Department plans to educate and assist the public with understanding the newly revised requirements and how to comply with them. The Special Protection Waters Implementation Handbook was developed as a multipurpose document in November 1992 to provide information and guidance about the development of acceptable point and nonpoint source control measures and as a general source for antidegradation implementation policies and procedures. An updated version of the Handbook will be prepared to reflect changes in the regulation and requirements for antidegradation waters and will be made widely available to the public.

   Paperwork Requirements--The regulatory revisions will have some paperwork impacts on the Commonwealth, its political subdivisions and the private sector primarily based on development and additional processing of requests for SEJ which will be necessary because of the increased number of High Quality Waters which will likely result from implementation of this regulatory proposal.

G.  Pollution Prevention--The antidegradation program is a major pollution prevention tool because its objective is to prevent degradation by maintaining and protecting existing water quality. Although wastewater discharges are not prohibited by the antidegradation program, nondischarge alternatives are encouraged and required, when appropriate. Nondischarge alternatives remove impacts to the surface water and reduce the overall level of pollution to the environment by remediation of the effluent through the soil.

H.  Sunset Review

   These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

I.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed rulemaking on March 10, 1997, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.

   If IRRC has objections to any portion of the proposed amendments, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for the Department, the Governor and the General Assembly to review these objections before final publication of the regulations.

J.  Public Comments

   The Board specifically seeks comment and suggestions on the following issues: (1) implementation of the proposed balancing between lowering water quality and the social or economic benefit in High Quality Waters; (2) the criteria used for determining SEJ; and (3) if and in what way the public participation provisions for EV Waters should be expanded.

   Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendments to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by May 21, 1997 (within 60 days of publication in the Pennsylvania Bulletin). Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by May 21, 1997 (within 60 days following publication in the Pennsylvania Bulletin). The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulation will be considered.

   Electronic Comments--Comments may be submitted electronically to the Board at RegComments@A1.dep.state.pa.us. A subject heading of the proposal and return name and address must be included in each transmission. Comments submitted electronically must also be received by the Board by May 21, 1997.

K.  Public Hearing

   The Board will hold a public hearing for the purpose of accepting comments on this proposal. The hearing will be held at 1 p.m. as follows:

May 7, 1997

Department of Environmental    Protection 1st Floor Meeting Room, Rachel    Carson State Office Bldg. 400 Market Street Harrisburg, PA

   Persons wishing to present testimony at the hearing are requested to contact Nancy Roush at the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf.

   Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact Nancy Roush directly at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Department may accommodate their needs.

JAMES M. SEIF,   
Chairperson

   Fiscal Note:  7-310. (1) General Fund; (2) Implementing Year 1996-97 is $ Minimal; (3) 1st Succeeding Year 1997-98 is $; 2nd Succeeding Year 1998-99 is $; 3rd Succeeding Year 1999-00 is $; 4th Succeeding Year 2000-01 is $; 5th Succeeding Year 2001-02 is $;

(4)	Fiscal Year 1995-96	$13,343,278;
	Fiscal Year 1994-95	$14,684,546;
	Fiscal Year 1993-94	$14,504,928;

   (7)  Environmental Protection Management; (8) recommends adoption. This proposed action revises antidegradation regulations for Pennsylvania's streams to address Federal requirements. Requests for new, expanded or additional discharges to certain High Quality Waters will require additional treatment efforts and documentation. The Department will incur minor additional costs to review these requests and State and local agencies owning treatment plants in these situations will incur additional treatment costs.

Annex A

PART I.  DEPARTMENT OF
ENVIRONMENTAL PROTECTION

Subpart C.  PROTECTION OF NATURAL RESOURCES

ARTICLE II.  WATER RESOURCES

CHAPTER 92.  NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

§ 92.81.  General NPDES permits.

   (a)  Coverage and purpose. The Director may issue a general NPDES permit, in lieu of issuing individual NPDES permits, for a clearly and specifically described category of point source discharges, if the point sources meet all of the following paragraphs:

*      *      *      *      *

   (8)  Do not discharge to waters classified as [''special protection''] ''Exceptional Value Waters'' under Chapter 93 (relating to water quality standards).

*      *      *      *      *

§ 92.83.  Inclusion of individual dischargers in general NPDES permits.

*      *      *      *      *

   (b)  Denial of coverage. The Director shall deny any application for coverage under a general permit when one or more of the following conditions exist:

*      *      *      *      *

   (8)  The discharge would be to waters classified as [''special protection''] ''Exceptional Value Waters'' under Chapter 93 (relating to water quality standards).

*      *      *      *      *

CHAPTER 93.  WATER QUALITY STANDARDS

§ 93.1.  Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

*      *      *      *      *

   Exceptional Value Waters--Surface waters of high quality which constitute an outstanding National, State, regional or local resource. Examples which qualify for Exceptional Value Waters designation if they meet the conditions specified in § 93.4c (relating to Exceptional Value Waters) are as follows:

   (i)  Waters located in National, State or county parks or forests.

   (ii)  Waters in wildlife refuges or State game lands.

   (iii)  Waters which have been designated by the Fish and Boat Commission as ''Wilderness Trout Streams.''

   (iv)  Other waters of exceptional recreational or ecological significance.

*      *      *      *      *

   High Quality Waters--Surface waters having quality which exceeds levels necessary to support propagation of fish, shellfish and wildlife and recreation in and on the water.

*      *      *      *      *

   Natural quality--The water quality conditions that exist or that would reasonably be expected to exist in the absence of human related activity.

*      *      *      *      *

   Surface waters--Perennial and intermittent streams, rivers, lakes, reservoirs, ponds, wetlands, springs, natural seeps and estuaries. The term does not include water at facilities approved for wastewater treatment such as wastewater treatment impoundments, cooling water ponds and constructed wetlands used as part of a wastewater treatment process.

*      *      *      *      *

§ 93.3.  Protected water uses.

   Water uses which shall be protected, and upon which the development of water quality criteria shall be based, are set forth, accompanied by their identifying symbols, in the following Table 1:

Table 1

Symbol	Protected Use
*      *      *      *      *
[	Special Protection
HQ	High Quality Waters--A stream or watershed which has excellent quality waters and environmental or other features that require special water quality protection.
EV	Exceptional Value Waters--A stream or watershed which constitutes an outstanding national, State, regional or local resource, such as waters of national, State or county parks or forests, or waters which are used as a source of unfiltered potable water supply, or waters of wildlife refuges or State game lands, or waters which have been characterized by the Fish Commission as ''Wilderness Trout Streams,'' and other waters of substantial recreational or ecological significance.]

 

*      *      *      *      *

§ 93.4.  Statewide water uses.

*      *      *      *      *

   (c)  Redesignation of waters. Waters considered for redesignation [under subsection (b)] may not be redesignated to less restrictive uses than the existing uses.

   [(d)  Protection of water bodies.

   (1)  When the Department's evaluation of technical data establishes that a waterbody attains the criteria for an existing use which is more protective of the waterbody than the designated use, that waterbody shall be protected at its existing use until the conclusion of rulemaking action as a result of the evaluation. At the conclusion of the rulemaking procedure, the waterbody shall be protected at its designated use.

   (2)  When the Department's evaluation under paragraph (1) establishes that a waterbody attains the criteria for ''High Quality Waters,'' as defined in § 93.3 (relating to protected water uses), that waterbody shall be protected at its existing use. Proposed new and expanded discharges to the waterbody shall maintain and protect the existing quality of the waterbody unless the person proposing the new or expanded discharge demonstrates the criteria in § 95.1(b)(1) and (2) (relating to general requirements).]

ANTIDEGRADATION REQUIREMENTS

§ 93.4a.  Existing uses.

   Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected when the Department's evaluation of technical data establishes that a surface water attains or has attained an existing use. If the Department has confirmed the presence or critical habitat of endangered or threatened, Federal or Pennsylvania aquatic species listed in ''The Pennsylvania Natural Diversity Inventory'' (PNDI), discharges to these waters shall be limited to ensure protection of these species and critical habitat.

§ 93.4b.  High Quality Waters.

   (a)  Qualifying as High Quality Waters. For a surface water to qualify as High Quality Waters, the Department must determine that the water quality meets the conditions set forth in paragraphs (1)--(3).

   (1)  Chemistry test. One of the following shall exist:

   (i)  Water quality shall be generally better than the water quality criteria in § 93.7, Table 3 (relating to specific water quality criteria) and in Chapter 16, Appendix A, Table 1 (relating to water quality criteria for toxic substances) based on water quality analysis obtained from one or more grab samples collected at representative stream flow conditions for the following parameters:

pH	alkalinity	dissolved    oxygen
total dissolved    solids	ammonia    nitrogen	nitrite--    nitrogen
nitrate--    nitrogen	hardness	chloride
sulfate	iron	manganese
aluminum	arsenic*	cadmium*
chromium VI*	copper*	lead*
nickel*	zinc*
(where ''*'' means dissolved analyses are to be performed).

   (ii)  The water is determined by the Department to be of natural quality.

   (2)  Biology test. One or more of the following shall exist:

   (i)  The water quality shall support nonimpaired, high quality aquatic communities as determined by the Department using peer-reviewed biological assessment procedures that consider physical habitat and one or both of benthic macroinvertebrates and fishes. These procedures shall be based on Rapid Bioassessment Protocols for Use in Streams and Rivers; Benthic Macroinvertebrates and Fish, Plafkin, et al., (EPA/444/4-89-001).

   (ii)  The water quality satisfies other peer-reviewed biological assessment procedures that the Department may approve to determine the condition of the aquatic community of a surface water.

   (iii)  The surface water has been designated a Class A Wild Trout Stream by the Fish and Boat Commission following public notice and comment.

   (3)  Additional information.  The Department may consider additional chemical or biological information which characterizes or indicates the quality of a water in making its determination.

   (b)  Level of protection/social or economic justification (SEJ). The quality of High Quality Waters shall be maintained and protected unless a person proposing a new, additional or increased discharge of sewage, industrial waste or other pollutants demonstrates, and the Department finds, after public notification and participation as described in § 93.4e(d) (relating to public participation in high quality and Exceptional Value Waters). The proposed discharge is necessary to accommodate important economic or social development in the area in which the surface water is located and will result in economic or social benefits to the public which outweigh any water quality degradation which the proposed discharge is expected to cause.

   (c)  Compliance with water quality standards. A proposed discharge to High Quality Waters, alone or in combination with other existing and anticipated discharges, may not preclude any use in the waters and downstream from the waters, nor result in a violation of any of the water quality criteria which are applicable to the receiving waters.

   (d)  Special provisions for sewage facilities correcting public health or pollution hazards. A proposed sewage facility that the Department determines is designed for the purpose of correcting public health or pollution hazards shall be deemed to satisfy subsection (b).

   (e)  Social or economic justification approval in sewage facilities planning and approval. For a proponent of a new sewage facility in High Quality waters who seeks to demonstrate social or economic justification for lowering water quality as part of the application for an official sewage facilities plan or an official plan revision under Chapter 71 (relating to administration of sewage facilities planning program), the following conditions shall apply:

   (1)  The proponent shall evaluate discharge alternatives in accordance with § 93.4d(a) (relating to general requirements for high quality and exceptional value).

   (2)  The proponent shall complete and submit an SEJ impact analysis as part of the sewage facilities planning submittal.

   (3)  The Department will make a determination regarding the SEJ impact analysis for consistency with subsection (b) during its review of the official plan or plan revision.

   (4)  Upon the submission of a wastewater discharge permit application, the applicant shall document that none of the following has occurred:

   (i)  There has been a material change in the scope or characteristics of the project.

   (ii)  There has been a change in the laws or regulations affecting the sewage facilities planning, wastewater discharge or other related aspects of the proposed project.

   (iii)  There has been a change in technology which makes a nondischarge alternative or combination of discharge and nondischarge alternatives, environmentally sound and economically feasible.

   (5)  If one or more of the changes in paragraph (4) has occurred, the applicant shall submit a revised SEJ impact analysis to the Department for review and approval as part of the wastewater discharge permit application.

   (f)  Special provisions for minimal impact discharges. If a proposed discharge to High Quality Waters meets one or more of the following conditions, that discharge maintains and protects water quality and is not subject to subsection (b).

   (1)  The discharge of any pollutant, alone or in combination with other discharges into those waters, utilizes 25% or less of the surface water's assimilative capacity. To comply with this condition, the proposed discharge shall maintain and protect water quality by satisfying an effluent limit established by the Department through mathematical modeling based on an antidegradation allowance for the regulated parameter as calculated by the following formula:

C_A = 0.25(C_WQ - C_RS) + C_RS
Where C_A = antidegradation allowance for the
      parameter
C_WQ = water quality criterion for the
      parameter and
C_RS = natural quality of the
      parameter in the receiving stream or in the reference stream if receiving stream data is not available

   (2)  The discharge of pollutants qualifies for a general permit under §§ 92.81 and 92.83 (relating to general NPDES permits; and inclusion of individual dischargers in general NPDES permits) and the terms and conditions of the permit.

§ 93.4c.  Exceptional Value Waters.

   (a)  Qualifying as Exceptional Value Waters. For a surface water to qualify as Exceptional Value Waters, the Department must determine that the water quality meets conditions set forth in this subsection.

   (1)  Chemistry test. One or more of the following shall existing:

   (i)  Water quality shall be generally better than the water quality criteria in § 93.7, Table 3 (relating to specific water quality criteria) and in Chapter 16, Appendix A, Table 1 (relating to water quality criteria for toxic substances) based on water quality analysis obtained from one or more grab samples collected at representative stream flow conditions for the following parameters:

pH	alkalinity	dissolved    oxygen
total dissolved    solids	ammonia    nitrogen	nitrite--    nitrogen
nitrate--    nitrogen	hardness	chloride
sulfate	iron	manganese
aluminum	arsenic*	cadmium*
chromium VI*	copper*	lead*
nickel*	zinc*
(where ''*'' means dissolved analyses are to be performed).

   (ii)  The water is determined by the Department to be of natural quality.

   (2)  Biology test. One of the following shall exist:

   (i)  The water quality shall support nonimpaired, outstanding aquatic communities as determined by the Department using peer-reviewed biological assessment procedures that consider physical habitat. benthic macroinvertebrates, or fishes based on Rapid Bioassessment Protocols for Use in Streams and Rivers; Benthic Macroinvertebrates and Fish. Plafkin, et al. (EPA/444/4-89-001);

   (ii)  The water quality satisfies other peer-reviewed biological assessment procedures that the Department may approve to determine the condition of the aquatic community of a surface water.

   (iii)  The surface water has been designated a wilderness trout stream by the Fish and Boat Commission following public notice and comment.

   (3)  Additional information. The Department may consider additional chemical or biological information which characterizes or indicates the quality of a water in making its determination.

   (b)  Level of protection for Exceptional Value Waters. The quality of Exceptional Value Waters shall be maintained and protected.

§ 93.4d.  General requirements for High Quality and Exceptional Value Waters.

   (a)  Discharge alternatives/use of best technologies. A person planning or proposing a new, additional or increased discharge to high quality or Exceptional Value Waters shall evaluate alternatives to the discharge and use an alternative that is environmentally sound and cost-effective when compared with the cost of the proposed stream discharge. A proposed discharge shall use the best available combination of cost-effective treatment, land disposal and wastewater reuse technologies.

   (b)  Nonpoint sources. The Department will implement programs that will promote cost-effective and reasonable best management practices for nonpoint source control.

   (c)  Designation and listing. High Quality and Exceptional Value Waters are listed in §§ 93.9a--93.9z following designation through the regulatory process.

   (d)  Protection pending designation. When the Department's evaluation of technical data establishes that a surface water qualifies as High Quality or Exceptional Value Waters, that surface water shall be protected as High Quality or Exceptional Value Waters, respectively, pending designation.

§ 93.4e.  Public participation in High Quality and Exceptional Value Waters.

   (a)  Submission of antidegradation evaluation reports and petitions. A person who petitions the EQB for stream redesignation under Chapter 23, Appendix A (relating to special procedures for petitions for stream redesignations under The Clean Streams Law and Chapter 93--statement of policy) may submit to the Department complete documentation of an antidegradation evaluation conducted by a non-Department entity with a conclusion concerning eligibility for antidegradation protection. The Department will review the antidegradation evaluation for completeness and will consider if the evaluation supports the proposed redesignation without additional information.

   (b)  Assessment of waters for High Quality or Exceptional Value Waters Classification. The Department will publish in the Pennsylvania Bulletin and in a local newspaper of general circulation notice of its intent to assess surface waters for potential classification as High Quality or Exceptional Value Waters. The notice will request submittal of technical and scientific information concerning the water quality of the waters to be assessed for use by the Department to supplement its technical evaluation. The Department will send a copy of the notice to all municipalities containing waters subject to the assessment.

   (c)  Public participation requirements for official sewage facilities plans or revisions to official plans in High Quality or Exceptional Value Waters. A proponent of a sewage facility in High Quality or Exceptional Value Waters seeking approval of an official plan or revision shall comply with the public participation requirements in Chapter 71 (relating to administration of sewage facilities planning program) regarding notice of antidegradation classification of the receiving waters.

   (d)  Public participation requirements for proposed discharges to High Quality or Exceptional Value Waters. In addition to the public participation requirements in §§ 92.61, 92.63 and 92.65 (relating to public notice of permit application and public hearing; public access to information; and notice to other government agencies), the following requirements apply to a proposed discharge to High Quality or Exceptional Value Waters.

   (1)  Proof of publication of a notice in a local newspaper of general circulation that the applicant intends to apply for a permit to discharge into High Quality or Exceptional Value Waters, and seeks comment for a 30-day period on the proposal. The notice shall state the name of the receiving water and its antidegradation classification, and shall provide the address of an accessible public location, such as a public library, where interested persons may review information regarding the discharge, including social or economic justification analyses, and public comments submitted to the applicant regarding its proposal.

   (2)  The applicant shall provide the Department with a copy of public comments received and a response to the comments prior to the Department's review of the proposal.

   (3)  The Department's notice of complete application in § 92.61(a) (relating to public notice of permit application and public hearing) will note the antidegradation classification of the receiving water.

   (e)  Public hearings for discharges to Exceptional Value Waters. The Department will hold public hearings on proposed discharges, into waters designated as Exceptional Value Waters.

§ 93.7.  Specific water quality criteria.

*      *      *      *      *

   (e)  Table 5 contains groups of specific water quality criteria based upon water uses to be protected. When the symbols listed in Table 5 appear in the Water Uses Protected column in [§ 93.9] §§ 93.9a--93.9z, they have the meaning listed in [the] Table 5. Exceptions to these standardized groupings 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.

Table 5

Symbol	Water Uses Include	Specific Criteria
*      *      *      *      *
[ HQ-WWF	Statewide list plus High Quality Waters	Statewide list plus DO1 and Temp2
HQ-CWF	Statewide list plus High Quality Waters and Cold Water Fish	Statewide list plus DO6 and Temp1
HQ-TSF	Statewide list plus High Quality Waters and Trout Stocking	Statewide list plus DO1 and Temp3
EV	Statewide list plus Exceptional Value Waters]	Existing quality

*      *      *      *      *

   (g)  Table 5a contains groups of specific water quality criteria for High Quality and Exceptional Value Waters.

Table 5a

Symbol		Category Specific
		Criteria
HQ-WWF	Statewide List Plus High Quality Waters	Statewide List Plus DO1 and Temp2
HQ-CWF	Statewide List Plus High Quality Waters and Cold Water Fish	Statewide List Plus DO6 and Temp1
HQ-TSF	Statewide List Plus High Quality Waters and Trout Stocking	Statewide List Plus DO1 and Temp3
EV	Statewide List Plus Exceptional Value Waters	Existing Quality

   Editor's Note:  Sections 93.9a--93.9z are proposed to be amended like the following example of an amended drainage list. ''HQ'' and ''EV'' would no longer be listed in the ''Water Uses Protected'' column, but in a new column titled ''Antidegradation Classification.'' ''EV'' in the ''Water Uses Protected'' column would be replaced with the designated use of the water (in most cases, CWF) See Editor's Note as follows:

§ 93.9c.  Drainage List C.

Delaware River Basin in Pennsylvania
Delaware River

				Exceptions	Antidegra-
			Water Uses	to Specific	dation
Stream	Zone	County	Protected	Criteria	Classification
1--Delaware River	Main Stem, Lackawaxen River to Tocks Island	Pike	WWF, MF	Delete Bac1, pH1, and TDS, Add Bac5, pH4, Temp4, Temp9, TON, TDS3 Tur5 upstream of RM 254.75 and Tur6, downstream of RM 254.75, MBAS1 and Rad
2--Unnamed Tributaries to Delaware River	Basins Lackawaxen River to Tocks Island	Pike	[HQ-CWF] CWF	None	HQ
2--Panther Creek	Basin	Pike	[HQ-CWF] CWF	None	HQ
2--Shohola Creek	Basin	Pike	[HQ-CWF] CWF	None	HQ
2--Twin Lakes Creek	Basin	Pike	[HQ-CWF] CWF	None	HQ
2--Pond Eddy Creek	Basin	Pike	[HQ-CWF] CWF	None	HQ
2--Bush Kill	Basin	Pike	[EV] CWF	None	EV
2--Rosetown Creek	Basin	Pike	[HQ-CWF] CWF, MF	None	HQ

   Editor's Note:  Sections 93.9a--93.9z are proposed to be amended as follows:

   In the ''Water Uses Protected'' column, ''HQ'' and ''EV'' are deleted and relocated in a new column and titled ''Antidegradation Classification''; the designated uses (that is, CWF, WWF or TSF and MF, if listed) are retained in the column.

   The entry for the ''Water Uses Protected'' column for EVs is ''CWF'' for all except the following streams:

				Water Uses
Drainage List	Stream	Zone	County	Protected
(§ 93.9f Pa. Code p. 93-53)	4--Peters Creek	Basin	Berks	WWF
(§ 93.9g Pa. Code p. 93-62)	5--Broad Run	Basin	Chester	TSF, MF
(§ 93.9o Pa. Code p. 93-129)	5--Elders Run	Basin	Lancaster	TSF
(§ 93.9o Pa. Code p. 93-134)	3--Black Run	Basin, Source to Unnamed Tributary at RM 2.50	Chester	TSF, MF
(§ 93.9o Pa. Code p. 93-134)	3--Unnamed Tributary to Octoraro Creek at RM 13.60	Basin	Chester	TSF, MF
(§ 93.9o Pa. Code p. 93-135)	4--Jordan Run	Basin	Chester	TSF, MF
(§ 93.9o Pa. Code p. 93-135)	4--Barren Brook	Basin	Chester	TSF, MF

CHAPTER 95.  WASTEWATER TREATMENT REQUIREMENTS

§ 95.1.  General requirements.

   [(a)]  Specific treatment requirements and effluent limitations for each waste discharge shall be established based on the more stringent of [subsections (b) and (c)] antidegradation requirements under §§ 93.4a--93.4e (relating to antidegradation requirements), the water quality criteria specified in Chapter 93 (relating to water quality standards), the applicable treatment requirements and effluent limitations to which a discharge is subject under 33 U.S.C.A. § 1251 or the treatment requirements and effluent limitations of this title provided that specific treatment requirements and effluent limitations for waste discharges from overflows as defined in § 94.1 (relating to definitions) shall be established based on applicable treatment requirements and effluent limitations to which [such] the discharge is subject under 33 U.S.C.A. § 1251 [et seq].

   [(b)  Waters having a water use designated as ''High Quality Waters'' in § 93.6 and 93.9 (relating to general water quality criteria; and designated water uses and water quality criteria) shall be maintained and protected at their existing quality or enhanced, unless the following are affirmatively demonstrated by the proposed discharger of sewage, industrial wastes, or other pollutants:

   (1)  The proposed new, additional or increased discharge or discharges of pollutants is justified as a result of necessary economic or social development which is of significant public value.

   (2)  The proposed discharge or discharges, alone or in combination with other anticipated discharges of pollutants to the waters, will not preclude any use presently possible in the waters and downstream from the waters, and will not result in a violation of any of the numerical water quality criteria specified in § 93.9 which are applicable to the receiving waters.

   (c)  Waters having a use designated as ''Exceptional Value Waters'' in § 93.9 shall be maintained and protected at a minimum at their existing quality. The Department will hold a public hearing on any proposed discharge into waters having a water use designated as ''Exceptional Value Waters'' in § 93.9.

   (d)  A project or development which would result in a new, additional or increased discharge or discharges of sewage, industrial wastes or other pollutants into waters having a water use designated as ''High Quality Waters'' in § 93.9 will be permitted only in compliance with the requirements of (b) and, furthermore, shall be required to:

   (1)  Utilize the best available combination of treatment and land disposal technologies and practices for the wastes, where the land disposal would be economically feasible, environmentally sound and consistent with other provisions of this title; or

   (2)  If the land disposal is not economically feasible, is not environmentally sound, or cannot be accomplished consistent with other provisions of this title, utilize the best available technologies and practices for the reuse and discharge of the wastes.]

[Pa.B. Doc. No. 97-443. Filed for public inspection March 21, 1997, 9:00 a.m.]

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