RULES AND REGULATIONS

Title 25--ENVIRONMENTAL PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 93]

Stream Redesignation (Trout Run)

[30 Pa.B. 6191]

   The Environmental Quality Board (Board) by this order amends § 93.9t (relating to Drainage List T) to read as set forth in Annex A.

   This order was adopted by the Board at its meeting of April 18, 2000.

   A.  Effective Date

   This amendment is effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.

   B.  Contact Persons

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

   C.  Statutory and Regulatory Authority

   This final-form rulemaking is being 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. In addition, the Federal regulation in 40 CFR 131.32 (relating to Pennsylvania) sets forth certain requirements for portions of the Commonwealth's antidegradation program.

   D.  Background of the Amendments

   The Commonwealth's Water Quality Standards, which are set forth in part in Chapter 93 (relating to water quality standards) implement 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 are in-stream water quality goals that are implemented by imposing specific regulatory requirements (such as treatment requirements and effluent limits) on individual sources of pollution.

   The Department considers candidates for High Quality (HQ) or Exceptional Value (EV) Waters designation in its ongoing review of water quality standards. In general, HQ and EV waters shall be maintained at their existing quality, and wastewater treatment requirements shall meet existing and designated water uses. The Department may identify candidates during routine waterbody investigations. Requests for consideration may also be initiated by other agencies, such as the Fish and Boat Commission (FBC). In addition, organizations, businesses or individuals may submit a rulemaking petition to the Board.

   The Department evaluated Trout Run, Westmoreland County, in response to a rulemaking petition from the Blairsville Municipal Authority. An aquatic survey was conducted by the Department's Bureau of Watershed Conservation. The physical, chemical and biological characteristics of Trout Run were evaluated to determine the appropriateness of the current and requested designations using applicable regulatory criteria and definitions. Based upon the data collected in this survey, the Board has made the designations set forth in Annex A.

   A copy of the Department's stream evaluation report is available from Edward R. Brezina whose address and telephone number are listed in Section B of this Preamble.

   E.  Summary of Changes and Comments and Responses on the Proposed Rulemaking

   The Board approved the proposed rulemaking on January 20, 1998. At that time, Trout Run was part of the Buck Hill Creek, et al. package. The Department separated Trout Run from that package for final-form rulemaking.

   The proposal, as part of the Buck Hill Creek, et al. package, was published at 28 Pa.B. 1635 (April 4, 1998) with provision for a 60-day public comment period that closed on June 3, 1998. A request for a public hearing was received during the public comment period. As a result, a Department public meeting and a Board public hearing were held at the Derry High School, Derry, on September 1, 1998. An additional public comment period, ending September 15, was also provided. Comments were received from a total of 14 commentators and the Independent Regulatory Review Commission (IRRC).

   A total of eight of the 14 public comments were in support of the proposed redesignation of the upper portion of Trout Run. These comments were provided by the general public, the Hillside Community Association, the Blairsville Municipal Authority, the Mid-Atlantic Karst Conservancy, the Loyalhanna Grotto of the National Speleological Society, the Loyalhanna Watershed Association and the Chestnut Ridge Conservancy.

   IRRC commented that the Department relies on the selection criteria in the ''Special Protection Waters Implementation Handbook'' to arrive at stream reclassifications. They noted that the handbook is only a guidance document. They also stated that the proposed redesignation should more appropriately cite statutes and regulations rather than the handbook. A number of commentators and IRRC indicated that the proposed redesignation was premature because the Department's antidegradation regulations were undergoing revision. Those revisions have been completed, with Board approval on May 19, 1999, and publication at 29 Pa.B. 3720 (July 17, 1999). The ''biological test'' used as the basis for the recommended redesignation of Trout Run has been incorporated into the antidegradation regulation in § 93.4b(a)(2) and (b)(1)(v) (relating to qualifying as High Quantity or Exceptional Value Waters).

   Several commentators asserted that reclassification based on one water chemistry grab sample used to represent 4.6 stream miles is not scientifically defensible. The redesignation is not based on water chemistry. It is based on the biological test in the antidegradation regulations, and this portion of Trout Run attains a 100% comparison to an EV reference station. The indigenous aquatic community is a good indicator of long-term water quality because the organisms complete portions of their life cycle in the stream. Water samples for chemical analysis were collected during the stream evaluation to provide a ''snapshot'' of water quality conditions, but these data do not form a basis for the recommended redesignation.

   Several commentators questioned the use of Indian Creek as the reference station in the evaluation of Trout Run since Indian Creek is classified as HQ. As stated in the evaluation report, Trout Run was compared to Camp Run, a tributary to Indian Creek. Camp Run is listed separately in Chapter 93 as EV, and is therefore an appropriate reference station.

   Two commentators believed the present Cold Water Fishes (CWF) classification is more than sufficient to protect the existing potable water supply and indigenous animal and plant life in the watershed. The Department's water quality standards are designed to protect the designated fish and aquatic life use, a number of water supply uses including potable water supply, and a number of recreational uses. While CWF may be sufficient to protect Trout Run, the headwaters of Trout Run meet the requirement of the biological test in the antidegradation regulation for designation as EV.

   A number of commentators stated the opinion that the proposed redesignation would halt economic growth in the area generally, as well as prevent planned development in this watershed in particular. The Department's antidegradation regulation does not preclude development. It does require that existing water quality be maintained in HQ and EV Waters. Any proposed development must include consideration of nondischarge alternatives and appropriate controls to assure that existing quality is maintained.

   The IRRC recommended that the Board analyze the economic impact of the regulation. The Federal Clean Water Act does not allow states to consider social and economic factors in developing water quality standards (including designated uses). Each water body is evaluated using the Department's regulatory criteria, and an appropriate classification is developed.

   This regulatory change will allow wastewater treatment requirements for dischargers to Trout Run to be consistent with the water uses to be protected. This regulatory amendment does not contain any standards or requirements that exceed requirements of the companion Federal regulations.

   F.  Benefits, Costs and Compliance

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

   1.  Benefits--Overall, the citizens of this Commonwealth will benefit from the recommended change because it will reflect the appropriate designated use and maintain the most appropriate degree of protection for Trout Run in accordance with the existing use.

   2.  Compliance Costs--Generally, the changes should have no fiscal impact on, or create additional compliance costs for the Commonwealth or its political subdivisions. The stream is already protected at its existing use, and therefore the designated use change will have no impact on treatment requirements. No costs will be imposed directly upon local government by this recommendation. Political subdivisions that add a new sewage treatment plant in the basin, or expand an existing facility, may experience changes in cost as noted in the discussion of impacts on the private sector.

   Persons conducting or proposing activities or projects that result in a discharge to the stream shall comply with the regulatory requirements relating to designated and existing uses. These persons could be adversely affected if they add a new or expanded discharge since they may need to provide a higher level of treatment to meet the designated and existing uses of the stream. These increased costs may take the form of higher engineering, construction or operating costs for wastewater treatment facilities. Treatment costs are site-specific and may depend upon the size of the discharge in relation to the size of the stream and many other factors. It is therefore not possible to precisely predict the actual change in costs.

   3.  Compliance Assistance Plan--The regulatory revision has been developed as part of an established program that has been implemented by the Department since the early 1980's. The revision is consistent with and based on existing Department regulations. The revision extends additional protection to a waterbody that exhibits exceptional water quality and is consistent with antidegradation requirements established by the Federal Clean Water Act and The Clean Streams Law. Surface waters in this Commonwealth are afforded a minimum level of protection through compliance with the water quality standards, which prevent pollution and protect existing water uses.

   The amendment will be implemented through the National Pollutant Discharge Elimination System (NPDES) permitting program since the stream use designation is a basis for determining allowable stream discharge effluent limitations. Permit conditions are established to assure water quality criteria are achieved and designated and existing uses are protected. New or expanding dischargers with water quality based effluent limitations are required to provide effluent treatment according to the water quality criteria associated with existing uses and designated water uses.

   4.  Paperwork Requirements--The regulatory revision should have no direct paperwork impact on the Commonwealth, local governments and political subdivisions, or the private sector. The regulatory revision is based on existing Department regulations and simply mirrors the existing use protection that is already in place. There may be some indirect paperwork requirements for new dischargers. For example, NPDES general permits are not currently available for new discharges to EV or HQ streams. Thus an individual permit, and its associated additional paperwork, would be required.

   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 and existing uses. Although the antidegradation program does not prohibit new or expanded wastewater discharges, nondischarge alternatives are encouraged, and required, when environmentally sound and cost effective. Nondischarge alternatives, when implemented, remove impacts to surface water and reduce the overall level of pollution to the environment by remediation of the effluent through the soil.

   H.  Sunset Review

   This regulation will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.

   I.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 23, 1998, the Department submitted a copy of the notice of proposed rulemaking, published at 28 Pa.B. 1635, to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment.

   Under section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments received, as well as other documentation. In preparing this final-form regulation, the Department has considered comments received from IRRC and the public. The Committees did not provide comments on the proposed rulemaking.

   This final-form regulation was deemed approved by the Senate and House Environmental Resources and Energy Committees on May 22, 2000. IRRC met on May 25, 2000, and disapproved the amendment in accordance with section 6(a) of the Regulatory Review Act (71 P. S. § 745.6(a)). Under section 7(b) of the Regulatory Review Act (71 P. S. § 745.7(b)), the Department determined it was desirable to implement the final-form regulation without revisions or modifications recommended by IRRC and submitted a report to the House and Senate Committees on May 31, 2000. On June 6, 2000, the Senate Committee passed a resolution disapproving the final-form rulemaking; however, no further action was taken during the remainder of the Committees' review period which ended on October 10, 2000.

   J.  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, 1 Pa. Code §§ 7.1 and 7.2.

   (2)  A public comment period was provided as required by law. In addition, a Board hearing was held and an additional public comment period was provided. All comments were considered.

   (3)  This final-form regulation does not enlarge the purpose of the proposal published at 28 Pa.B. 1635.

   (4)  This final-form regulation is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C this Preamble.

   K.  Order

   The Board, acting under the authorizing statutes, orders that:

   (a)  The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending § 93.9t to read as set forth in Annex A, with ellipses referring to the existing text of the regulation.

   (b)  The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for approval and review as to legality and form, as required by law.

   (c)  The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.

   (d)  The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.

   (e)  This order shall take effect immediately upon publication in the Pennsylvania Bulletin.

JAMES M. SEIF,   
Chairperson

   (Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 30 Pa.B. 2965 (June 10, 2000).)

   Fiscal Note: 7-333B. No fiscal impact; (8) recommends adoption.

   This regulation was previously published as 7-333. This has now been split into 7-333A, which designates water uses and water quality criteria in various streams in Monroe, Lebanon, Berks, Montgomery, Cameron and Somerset Counties; and 7-333B which designates water uses and water quality criteria for Trout Run in Westmoreland County.

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

§ 93.9t.  Drainage List T.

Ohio River Basin in Pennsylvania

Kiskiminetas River

Stream	Zone	County	Water Uses Protected	Exceptions To Specific Criteria
*      *      *      *      *
5--McGee Run	Main Stem, Farthest Upstream Crossing of Derry Borough Border to Mouth	Westmoreland	TSF	None
*      *      *      *      *
6--Trout Run	Basin, source to inlet of Blairsville Reservoir	Westmoreland	EV	None
6--Trout Run	Basin, inlet of Blairsville Reservoir to Mouth	Westmoreland	CWF	None
*      *      *      *      *

[Pa.B. Doc. No. 00-2058. Filed for public inspection December 1, 2000, 9:00 a.m.]

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