[29 Pa.B. 3720]
[Continued from previous Web Page] Public Participation for Discharges Which Could Impact HQ or EV Waters. Several comments questioned the need for an additional prepermit 30-day public comment period prior to the submission by an applicant of an application to discharge wastes into Commonwealth waters; others questioned whether the public participation provided for these activities was adequate. In response, the Board has eliminated the prepermit 30-day comment period; this additional public comment period was seen as redundant, and would result in additional paperwork and expense in the permit process. Additional public information and input possibilities are provided in the form of a public hearing requirement for discharges to EV Waters, when requested, as well as a requirement that public notices for discharge permits contain language noting the antidegradation classification of the receiving water.
Existing Use Protection. Several comments questioned the proposed process for existing use protection, stating that the requirement that existing uses not be protected until the Department evaluates technical data is inappropriate to protect existing uses. In response, language is added in § 93.4a(b) which is identical to the Federal language for existing use protection in 40 CFR 131.12(a)(1). Moreover, the amended language of the final-form regulations in § 93.4c(a) provides a procedure for existing use protection; existing use protection is provided by the Department based upon the best available information for a waterbody. The final existing use determination is made in the context of a Department permit or approval action. That action includes the opportunity for the public and the person seeking to conduct the activity requiring the permit or approval to provide water quality information.
SEJ ''Balancing'' Language. Several comments questioned the need for SEJ language in the proposal which provided that dischargers shall demonstrate that the SEJ for their proposed discharge into HQ Waters must outweigh the proposed environmental degradation from the discharge. The Board has removed the phrase ''which outweigh any water quality degradation which the proposed discharge is expected to cause'' because it is beyond that contained in the relevant Federal language in 40 CFR 131.12(a)(2) and is not necessary. The term ''important'' in ''important economic or social development'' provides sufficient authority to conduct a balancing test which balances the social or economic benefits of a proposed discharge against any water quality degradation the discharge is expected to cause.
Outstanding ''State, Regional or Local'' Resource Waters. Several comments expressed that the scope of EV waters should be ''outstanding National resource waters,'' which is the scope of the Federal regulation in 40 CFR 131.12(a)(3). The Board's EV Waters definition is broader than EPA's Tier 3 definition. The Commonwealth also protects outstanding State, regional and local resource waters. First, whereas the EPA's focus is only on outstanding National waters, the Board believes that there are also outstanding State, regional and local waters which merit EV protection. Second, the Commonwealth's antidegradation program has included outstanding State, regional and local waters for many years in its existing § 93.3, and the Board continues to believe that outstanding waters are worthy of EV status even though they may not be outstanding National resource waters. This Commonwealth has 83,000 miles of surface waters, more than any other state except Alaska, and to date approximately 1,700 miles, or less than 2% of these waters, have been classified as EV Waters. This percentage is not expected to change markedly under these regulations since these final regulations merely continue the existing inclusion of these waters as EV Waters.
Terminology/Subjectivity in the Classification of HQ/EV Waters. Several commentators believed that the criteria utilized for defining an EV Water in the proposal, particularly the phrase ''other waters of exceptional recreational or ecological significance,'' was unduly subjective. In response to the comments, the Board has added more objectivity to the regulations by specifically laying out the biological qualifying criteria in more detail (that is, 83% of macroinvertebrate populations of excellent reference waters to qualify as an HQ Water under the biology test), adding several new definitions of terms such as ''coordinated water quality protective measures,'' ''outstanding National, State, regional or local resource water,'' ''surface water of exceptional ecological significance,'' and ''surface water of exceptional recreational significance'' and specifically enumerating categories of National and State waters which, when accompanied by water quality which qualifies a water as HQ, qualify the water for EV protection. All these changes were designed to provide more objective criteria. Other measures which have been taken, such as deleting the word ''generally'' from the chemistry qualifying criteria for HQ, and the more precise laying out of criteria for HQ and EV, as well as specific procedures for existing use protection, also provide more objectivity in these final-form regulations.
Landowner Notification of Assessments for HQ/EV Status. Several comments suggested that either the Department, or the proponent of a petition to upgrade a water to HQ or EV status, should be required to notify all landowners in the watershed. In response, although the Department believes that public notification is appropriate, having petitioners or the Department try to search and send individual certified letters to each landowner in a watershed is onerous and burdensome and still may not reach everyone. The Department believes more workable and effective notification options include placing notices in local newspapers within the watershed, public service announcements on local radio or television, and working with municipalities to assist in the notification of the potentially affected local citizens, including landowners.
Adequate Public Participation in the Stream Designation Process. Several comments noted that there were not adequate opportunities for public input in the Board's redesignation of surface waters to HQ or EV status. In response, the Board has modified the proposal to expand public participation requirements. Section 93.4d(a) requires the Department to publish notices of intent to assess a water for potential HQ or EV designation in both the Pennsylvania Bulletin and local newspapers. In addition, a notice is also required when a completed evaluation is accepted by the Board. The Department will also notify municipalities in the affected watershed. These notices will request submittal of additional information for use by the Department. Section 93.4d(b) further provides for combined public meeting and fact-finding hearings to discuss the assessment or evaluation and solicit additional data.
G. ANFR
After considering all of the comments received on the proposal, the Department undertook an extensive effort to recraft the proposal in the form of an ANFR proposal, to seek additional public input. The Department developed the ANFR in a multistage process. First, a conceptual description of the ANFR was discussed at several outreach meetings with various stakeholder groups. Next, the conceptual ANFR was discussed with several advisory groups including the Citizen's Advisory Council (CAC), the WRAC and the Reg Neg group. The input from the stakeholders and the advisory committees was utilized in the development of a formal proposal. Notice of the availability of the ANFR appeared at 29 Pa.B. 455 with provisions for a public comment period which remained open until February 22, 1999. In addition, three public meetings/hearings were held at the following sites and dates: Harrisburg on February 8, 1999; Conshohocken on February 10, 1999; and Pittsburgh on February 18, 1999. The formal proposal was also discussed with the Agricultural Advisory Board (AAB).
The Department received 743 public comments on the ANFR. Many commentators were generally supportive of the ANFR. Several comments addressed issues such as: (1) landowner notification of stream upgrades; (2) SEJ issues such as whether the regulation should contain language ''balancing'' social or economic justification against environmental degradation; how extensive should the regulation be with regard to spelling out the factors for analyzing SEJ requests; expanding terms such as ''existing public health or pollution hazard'' and ''cost effective and environmentally sound''; and whether the ''automatic'' SEJ process for sewage facilities with existing public health or pollution hazards should be applied to industrial activities as well; (3) the appropriate chemical and biological methodology for ascertaining HQ and EV stream classifications; (4) whether the regulation should be limited to discharges or apply to more activities; (5) the appropriate language for protecting threatened and endangered species; (6) whether EV and HQ should be protected as uses; (7) the appropriate public hearing requirements for discharges in EV Waters; (8) the use of NPDES general permits in HQ and EV Waters; (9) the appropriate factors and methodology for EV Waters classifications, including where social and economic factors and information should be considered; and (10) the impact of these regulations on agricultural activities and other land uses. These comments are addressed in more detail as follows, except to the extent they are already addressed in Section E or F of this Preamble.
SEJ Issues. Several comments addressed various issues with SEJ terminology and implementation. In response, the Board has adopted the Federal SEJ language in 40 CFR 131.12(a)(2) as the Commonwealth's SEJ language. As such, the Department will look to Federal SEJ guidance on the terminology and its implementation; the guidance will be considered and appropriately tailored to meet the needs of Pennsylvanians.
Public Hearing Requirements for Discharges to EV Waters. Several comments expressed concern with the ANFR proposal to remove mandatory public hearing requirements for proposed discharges to EV Waters. The Board has added language, in response to the comments, which provides that a public hearing will be held on a proposed discharge to EV Waters when requested by an interested person. This language replaces § 95.1(c) which requires mandatory public hearings for all discharges to EV Waters, regardless of public interest. Numerous hearings have been scheduled and held with the expense of Department staff time and court reporters, and no testimony given. The new language assures that hearings are held when requested, while eliminating the necessity for holding a hearing when there is no public interest.
Social and Economic Impacts in Stream Classifications. Several comments requested that the Department consider the social and economic impacts of a stream classification during the stream assessment process. In response, the CWA precludes States from considering economic or social factors in developing water quality standards (including water uses and water quality criteria).
Impact of Stream Classifications on Land Uses. Several comments suggested that the antidegradation regulations will impact the ability of farmers to continue farming, and developers and builders to develop their property in areas near HQ/EV streams, and that these regulations may constitute a ''taking'' of their property rights. In response, Department regulations, including these final-form regulations, are drafted mindful of the takings provisions of the United States and Pennsylvania Constitutions. These final-form regulations represent a reasonable exercise of the Commonwealth's police powers and do not in any way prohibit all economically viable uses of a property owner based on the property owner's reasonable investment-backed expectations. The final-form regulations do not affect the right to dispose of private property, and instead provide protection to this Commonwealth's best waters. Experience has shown that numerous discharge permits have been granted for discharges to HQ and EV Waters. Moreover, there are no new or additional requirements in these final-form regulations regarding farms in HQ or EV Waters; these final-form regulations require the Department to assure that cost-effective and reasonable BMPs for nonpoint source control be achieved. This requirement tracks language in the Federal regulation in 40 CFR 131.12(a)(2). Existing requirements in Chapters 102 and 105, the Nutrient Management Act and the Manure Management Program will continue to govern.
Additional comments which were raised in the ANFR have been addressed in the response to comments on the proposed amendments in Section F of this Preamble, or as part of the description of the final-form regulations in Section E of this Preamble.
H. Benefits, Costs, and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits--Overall, the citizens of this Commonwealth will benefit from these changes because they will provide appropriate protection of surface waters in this Commonwealth, including existing uses and HQ and EV Waters. The antidegradation program in these final-form regulations addresses the EPA's disapproval of certain antidegradation provisions and provides an antidegradation program which reflects the input of the public, interested stakeholders and others, and addresses concerns specific to the Commonwealth.
Compliance Costs--New, additional or increased discharges to HQ or EV Waters, or those proposing other activities requiring a Department permit or approval in these 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.
The changes may have some fiscal impact on or create additional compliance costs for the Commonwealth, political subdivisions and the private sector planning new, additional or increased wastewater discharges or other activities requiring a Department permit or approval which may affect HQ or EV Waters. The number of affected discharges or other activities requiring a Department permit or approval cannot be determined because of the uncertainty in which waters will be evaluated as HQ and EV 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 regulations and requirements for antidegradation waters and will be made widely available to the public, with opportunities for public input and comment.
Paperwork Requirements--The regulatory revisions will have limited paperwork impacts on the Commonwealth, its political subdivisions and the private sector.
I. 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. Dischargers to HQ and EV Waters shall evaluate alternatives to stream discharge. If no cost-effective and environmentally sound alternative is available, the discharger shall use the best available combination of cost-effective treatment, land disposal, pollution prevention and wastewater reuse technologies.
J. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
K. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 10, 1997, the Department submitted a copy of the proposed rulemaking, published at 27 Pa.B. 1459, 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 all comments received on the proposed regulation, as well as other documentation.
In preparing these final-form regulations, the Department has considered all comments received from IRRC and the public. The Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House Environmental Resources and Energy Committee and the Senate Environmental Resources and Energy Committee on June 9, 1999. IRRC met on June 17, 1999, and deemed approved the final-form regulations in accordance with section 5(c) of the Regulatory Review Act.
L. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder in 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided, as required by law, and all comments were considered.
(3) These final-form regulations do not enlarge the purpose of the proposal published at 27 Pa.B. 1459.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
M. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapters 93 and 95, are amended by amending §§ 93.1, 93.3, 93.4, 93.7 and 95.1, and by adding §§ 93.4a--93.4d to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication.
JAMES M. SEIF,
Chairperson(Editor's Notes: The proposed amendment of §§ 92.81 and 92.83, included in the proposal at 27 Pa.B. 1459 have been withdrawn by the Board. Proposed amendments regarding these sections were included in the proposal at 28 Pa.B. 4431 (August 29, 1998). The proposal to amend §§ 93.9a--93.9z, which also appeared at 27 Pa.B. 1459, has been withdrawn.
For the text of the order of the Independent Regulatory Review Commission relating to this document see 29 Pa.B. 3492 (July 3, 1999).)
Fiscal Note: Fiscal Note 7-310 remains valid for the final adoption of the subject regulations.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 93. WATER QUALITY STANDARDS § 93.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Class A wild trout water--A surface water classified by the Fish and Boat Commission, based on species-specific biomass standards, which supports a population of naturally produced trout of sufficient size and abundance to support a long-term and rewarding sport fishery.
* * * * * Coordinated water quality protective measures--
(i) Legally binding sound land use water quality protective measures coupled with an interest in real estate which expressly provide long-term water quality protection of a watershed corridor.
(ii) Sound land use water quality protective measures include: surface or groundwater source protection zones, enhanced stormwater management measures, wetland protection zones or other measures which provide extraordinary water quality protection. Real estate interests include:
(A) Fee interests.
(B) Conservation easements.
(C) Government owned riparian parks or natural areas.
(D) Other interests in land which enhance water quality in a watershed corridor area.
* * * * * Exceptional Value Waters--Surface waters of high quality which satisfy § 93.4b(b) (relating to antidegradation).
* * * * * 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 by satisfying § 93.4b(a).
* * * * * Nonpoint source--A pollution source which is not a point source discharge.
* * * * * Outstanding National, State, regional or local resource water--A surface water for which a National or State government agency has adopted water quality protective measures in a resource management plan, or regional or local governments have adopted coordinated water quality protective measures along a watershed corridor.
* * * * * Point source discharge--A pollutant source regulated under the National Pollutant Discharge Elimination System (NPDES) as defined in § 92.1 (relating to definitions).
* * * * * 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.
* * * * * Surface water of exceptional ecological significance--A surface water which is important, unique or sensitive ecologically, but whose water quality as measured by traditional parameters (for example, chemical, physical or biological) may not be particularly high, or whose character cannot be adequately described by these parameters. These waters include:
(i) Thermal springs.
(ii) Wetlands which are exceptional value wetlands under § 105.17(1) (relating to wetlands).
Surface water of exceptional recreational significance--A surface water which provides a water-based, water quality-dependent recreational opportunity (such as fishing for species with limited distribution) because there are only a limited number of naturally occurring areas and waterbodies across the State where the activity is available or feasible.
* * * * * Water quality protective measures in a resource management plan--Measures in a resource management plan which expressly provide extraordinary long-term water quality protection of a watershed corridor. These measures include surface or groundwater source protection zones, enhanced stormwater management measures or wetland protection zones.
* * * * * Wilderness trout stream--A surface water designated by the Fish and Boat Commission to protect and promote native trout fisheries and maintain and enhance wilderness aesthetics and ecological requirements necessary for the natural reproduction of trout.
§ 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
Aquatic Life CWF Cold Water Fishes--Maintenance or propagation, or both, of fish species including the family Salmonidae and additional flora and fauna which are indigenous to a cold water habitat. WWF Warm Water Fishes--Maintenance and propagation of fish species and additional flora and fauna which are indigenous to a warm water habitat. MF Migratory Fishes--Passage, maintenance and propagation of anadromous and catadromous fishes and other fishes which ascend to flowing waters to complete their life cycle. TSF Trout Stocking--Maintenance of stocked trout from February 15 to July 31 and maintenance and propagation of fish species and additional flora and fauna which are indigenous to a warm water habitat. Water Supply PWS Potable Water Supply--Used by the public as defined by the Federal Safe Drinking Water Act, 42 U.S.C.A. § 300F, or by other water users that require a permit from the Department under the Pennsylvania Safe Drinking Water Act (35 P. S. §§ 721.1--721.18), or the act of June 24, 1939 (P. L. 842, No. 365) (32 P. S. §§ 631--641), after conventional treatment, for drinking, culinary and other domestic purposes, such as inclusion into foods, either directly or indirectly. IWS Industrial Water Supply--Use by industry for inclusion into nonfood products, processing and cooling. LWS Livestock Water Supply--Use by livestock and poultry for drinking and cleansing. AWS Wildlife Water Supply--Use for waterfowl habitat and for drinking and cleansing by wildlife. IRS Irrigation--Used to supplement precipitation for growing crops. Recreation B Boating--Use of the water for power boating, sail boating, canoeing and rowing for recreational purposes when surface water flow or impoundment conditions allow. F Fishing--Use of the water for the legal taking of fish. WC Water Contact Sports--Use of the water for swimming and related activities. E Esthetics--Use of the water as an esthetic setting to recreational pursuits. Special Protection HQ High Quality Waters EV Exceptional Value Waters Other N Navigation--Use of the water for the commercial transfer and transport of persons, animals and goods. § 93.4. Statewide water uses.
(a) Statewide water uses. The uses set forth in Table 2 were considered in determining the water quality criteria applicable to the particular waters listed in § 93.9 (relating to designated water uses and water quality criteria) except where otherwise indicated in § 93.9.
TABLE 2
Symbol Use Aquatic Life WWF Warm Water Fishes Water Supply PWS Potable Water Supply IWS Industrial Water Supply LWS Livestock Water Supply AWS Wildlife Water Supply IRS Irrigation Recreation B Boating F Fishing WC Water Contact Sports E Esthetics (b) Less restrictive uses. Less restrictive uses than those currently designated for particular water listed in § 93.9 may be adopted when it is demonstrated that the designated use is more restrictive than the existing use and one or more of the following conditions exist:
(1) The designated use is not attainable because of natural background conditions.
(2) The designated use is not attainable because of irretrievable man-induced conditions.
(3) Application of effluent limitations for existing sources more stringent than those required under section 301 of the Water Pollution Control Act (33 U.S.C.A. § 1311), to attain the designated use, would result in substantial and widespread adverse economic and social impact.
(c) Redesignation of water. Waters considered for redesignation may not be redesignated to less restrictive uses than the existing uses.
ANTIDEGRADATION REQUIREMENTS § 93.4a. Antidegradation.
(a) Scope. This section applies to surface waters of this Commonwealth.
(b) Existing use protection for surface waters. Existing instream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected.
(c) Protection for High Quality Waters--The water quality of High Quality Waters shall be maintained and protected, except as provided in § 93.4c(b)(1)(iii) (relating to implementation of antidegradation requirements).
(d) Protection for Exceptional Value Waters--The water quality of Exceptional Value Waters shall be maintained and protected.
§ 93.4b. Qualifying as High Quality or Exceptional Value Waters.
(a) Qualifying as a High Quality Water. A surface water that meets one or more of the following conditions is a High Quality Water.
(1) Chemistry.
(i) The water has long-term water quality, based on at least 1 year of data which exceeds levels necessary to support the propagation of fish, shellfish and wildlife and recreation in and on the water by being better than the water quality criteria in § 93.7, Table 3 (relating to specific water quality criteria) or otherwise authorized by § 93.8a(b) (relating to toxic substances), at least 99% of the time for the following parameters:
dissolved oxygen aluminum iron dissolved nickel dissolved copper dissolved cadmium temperature pH dissolved arsenic ammonia nitrogen dissolved lead dissolved zinc (ii) The Department may consider additional chemical and toxicity information, which characterizes or indicates the quality of a water, in making its determination.
(2) Biology. One or more of the following shall exist:
(i) Biological assessment qualifier.
(A) The surface water supports a high quality aquatic community based upon information gathered 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), as updated and amended. The surface water is compared to a reference stream or watershed, and an integrated benthic macroinvertebrate score of at least 83% shall be attained by the referenced stream or watershed.
(B) The surface water supports a high quality aquatic community based upon information gathered using other widely accepted and published peer-reviewed biological assessment procedures that the Department may approve to determine the condition of the aquatic community of a surface water.
(C) The Department may consider additional biological information which characterizes or indicates the quality of a water in making its determination.
(ii) Class A wild trout stream qualifier. The surface water has been designated a Class A wild trout stream by the Fish and Boat Commission following public notice and comment.
(b) Qualifying as an Exceptional Value Water. A surface water that meets one or more of the following conditions is an Exceptional Value Water:
(1) The water meets the requirements of subsection (a) and one or more of the following:
(i) The water is located in a National wildlife refuge or a State game propagation and protection area.
(ii) The water is located in a designated State park natural area or State forest natural area, National natural landmark, Federal or State wild river, Federal wilderness area or National recreational area.
(iii) The water is an outstanding National, State, regional or local resource water.
(iv) The water is a surface water of exceptional recreational significance.
(v) The water achieves a score of at least 92% (or its equivalent) using the methods and procedures described in subsection (a)(2)(i)(A) or (B).
(vi) The water is designated as a ''wilderness trout stream'' by the Fish and Boat Commission following public notice and comment.
(2) The water is a surface water of exceptional ecological significance.
§ 93.4c. Implementation of antidegradation requirements.
(a) Existing use protection.
(1) Procedures.
(i) Existing use protection shall be provided when the Department's evaluation of information (including data gathered at the Department's own initiative, data contained in a petition to change a designated use submitted to the EQB under § 93.4d(a), or data considered in the context of a Department permit or approval action) indicates that a surface water attains or has attained an existing use.
(ii) The Department will inform persons who apply for a Department permit or approval which could impact a surface water, during the permit or approval application or review process, of the results of the evaluation of information undertaken under subparagraph (i).
(iii) Interested persons may provide the Department with additional information during the permit or approval application or review process regarding existing use protection for the surface water.
(iv) The Department will make a final determination of existing use protection for the surface water as part of the final permit or approval action.
(2) Endangered or threatened species. If the Department has confirmed the presence, critical habitat, or critical dependence of endangered or threatened Federal or Pennsylvania species in or on a surface water, the Department will ensure protection of the species and critical habitat.
(b) Protection of High Quality and Exceptional Value Waters.
(1) Point source discharges. The following applies to point source discharges to High Quality or Exceptional Value Waters.
(i) Nondischarge alternatives/use of best technologies.
(A) A person proposing a new, additional or increased discharge to High Quality or Exceptional Value Waters shall evaluate nondischarge alternatives to the proposed discharge and use an alternative that is environmentally sound and cost-effective when compared with the cost of the proposed discharge. If a nondischarge alternative is not environmentally sound and cost-effective, a new, additional or increased discharge shall use the best available combination of cost-effective treatment, land disposal, pollution prevention and wastewater reuse technologies.
(B) A person proposing a new, additional or increased discharge to High Quality or Exceptional Value Waters, who has demonstrated that no environmentally sound and cost-effective nondischarge alternative exists under clause (A), shall demonstrate that the discharge will maintain and protect the existing quality of receiving surface waters, except as provided in subparagraph (iii).
(ii) Public participation requirements for discharges to High Quality or Exceptional Value Waters. The following requirements apply to discharges to High Quality or Exceptional Value Waters, as applicable:
(A) The Department will hold a public hearing on a proposed new, additional or increased discharge to Exceptional Value Waters when requested by an interested person on or before the termination of the public comment period on the discharge.
(B) For new or increased point source discharges, 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 applicant shall identify the antidegradation classification of the receiving water in the notice of complete application in § 92.61(a).
(iii) Social or economic justification (SEJ) in High Quality Waters. The Department may allow a reduction of water quality in a High Quality Water if it finds, after full satisfaction of the intergovernmental coordination and public participation provisions of the Commonwealth's continuing planning process, that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the waters are located. A reduction in water quality will not be allowed under this subparagraph unless the discharger demonstrates that the High Quality Water will support applicable existing and designated water uses (other than the high quality and exceptional value uses) in § 93.3, Table 1 (relating to protected water uses).
(2) Nonpoint source control. The Department will assure that cost-effective and reasonable best management practices for nonpoint source control are achieved.
(c) Special provisions for sewage facilities in High Quality or Exceptional Value Waters.
(1) SEJ approval in sewage facilities planning and approval in High Quality Waters. A proponent of a new, additional, or increased sewage discharge in High Quality Waters shall include impact analysis as part of the proposed revision or update to the official municipal sewage facilities plan under Chapter 71 (relating to administration of sewage facilities planning program). The Department will make a determination regarding the consistency of the SEJ impact analysis with subsection (b)(1)(iii). The determination will constitute the subsection (b)(1)(iii) analysis at the National Pollutant Discharge Elimination System (NPDES) permit review stage under Chapter 92 (relating to National Pollutant Discharge Elimination System), unless there is a material change in the project or law between sewage facilities planning and NPDES permitting, in which case the proponent shall recommence sewage facilities planning and perform a new social or economic justification impact analysis.
(2) SEJ for sewage facilities in High Quality Waters correcting existing public health or pollution hazards. A sewage facility, for which no environmentally sound and cost-effective nondischarge alternative is available under subsection (b)(1)(i)(A), proposed to discharge into High Quality Waters, which is designed for the purpose of correcting existing public health or pollution hazards documented by the Department, and approved as part of an official plan or official plan revision under § 71.32 (relating to Department responsibility to review and act upon official plans), satisfies the SEJ requirements in subsection (b)(1)(iii).
(3) 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 § 71.53(d)(6) (relating to municipal administration of new land development planning requirements for revisions).
§ 93.4d. Processing of petitions, evaluations and assessments to change a designated use.
(a) Public notice of receipt of evaluation, or assessment of waters, for High Quality or Exceptional Value Waters redesignation. The Department will publish in the Pennsylvania Bulletin and in a local newspaper of general circulation notice of receipt of a complete evaluation which has been accepted by the EQB recommending a High Quality or Exceptional Value Waters redesignation, or notice of the Department's intent to assess surface waters for potential redesignation as High Quality or Exceptional Value Waters. The assessments may be undertaken in response to a petition or on the Department's own initiative. The notice will request submission of information concerning the water quality of the waters subject to the evaluation, or to be assessed, for use by the Department to supplement any studies which have been performed. The Department will send a copy of the notice to all municipalities containing waters subject to the evaluation or assessment.
(b) Combined public meeting and fact-finding hearing. As part of its review of an evaluation or performance of an assessment, the Department may hold a combined public meeting and fact finding hearing to discuss the evaluation or assessment, including the methodology for the evaluation or assessment, and may solicit information, including technical data, to be considered in the Department's evaluation or assessment.
(c) Submission to EQB to alter designated use. Upon the completion of its assessment or review of a complete evaluation, and the satisfaction of the other applicable requirements of this section, the Department will submit the results of its assessment or review to the EQB for proposed rulemaking following review and comment by the petitioner, if applicable, in accordance with Chapter 23 (relating to Environmental Quality Board policy for processing petitions--statement of policy).
§ 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 §§ 93.9a--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 Included Specific Criteria WWF Statewide list Statewide list plus DO2 and Temp2 CWF Statewide list plus Cold Water Fish Statewide list plus DO1 and Temp1 TSF Statewide list plus Trout Stocking Statewide list plus DO5 and Temp3 * * * * *
CHAPTER 95. WASTEWATER TREATMENT REQUIREMENTS § 95.1. General requirements.
Specific treatment requirements and effluent limitations for each waste discharge shall be established based on the more stringent of antidegradation requirements under §§ 93.4a--93.4d (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 section 101 of the Federal Water Pollution Control Act (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 the discharge is subject under 33 U.S.C.A. §§ 1251--1387).
[Pa.B. Doc. No. 99-1123. Filed for public inspection July 16, 1999, 9:00 a.m.]
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