PROPOSED RULEMAKING
[25 PA. CODE CH. 96]
Water Quality Standards Implementation--Chloride and Sulfate
[32 Pa.B. 428] The Environmental Quality Board (Board) proposes to amend Chapter 96 (relating to water quality standards implementation) to read as set forth in Annex A. This proposed amendment clarifies the application of specific water quality criteria to surface waters in this Commonwealth.
This proposal was adopted by the Board at its meeting of November 20, 2001.
A. Effective Date
This proposed 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 Water Supply and Wastewater Management, 11th Floor, Rachel Carson State Office Building, P. O. Box 8467, Harrisburg, PA 17105-8467, (717) 787-9637 or Michelle Moses, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.
Information regarding submitting comments on this proposal appears in Section J of this Preamble. 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) website (http://www.dep.state.pa.us).
C. Statutory Authority
This proposed amendment is made under the authority of sections 5(b)(l) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(l) and 691.402), which authorize the Board to develop and adopt rules and regulations to implement The Clean Streams Law, and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grants the Board the power and duty to formulate, adopt and promulgate rules and regulations for the proper performance of the work of the Department.
D. Background and Purpose
The purpose of this proposal is to revise existing water quality regulations in Chapter 96. The water quality rulemaking under the Department's Regulatory Basics Initiative (RBI) and the Governor's Executive Order 1996-1 amended Chapter 93 (relating to water quality standards) and established Chapter 96 on November 13, 2000. The changes to Chapter 93 included deletion of § 93.7, Table 4 (relating to specific water quality criteria) and a clarification that all the specific criteria listed in § 93.7, Table 3 apply Statewide.
An inadvertent consequence of the restructuring of § 93.7 is the application of water quality based effluent limitations for the parameters sulfate and chloride in many situations when they were not applied under the prior version of these regulations. The criteria for sulfate and chloride are the same as the secondary maximum contaminant levels (SMCLs) of the drinking water program and are not a significant concern from a public health perspective, but are an aesthetic consideration. Historically, sulfate and chloride were not treated as Statewide parameters of concern and no environmental or public health concerns have been documented in this Commonwealth to support a change in this position. Under the proposed amendment, sulfate and chloride would be used to develop water quality-based effluent limits only in situations when there is potential for a downstream potable water supply to be negatively impacted by a discharge containing these contaminants.
The criteria for both chloride and sulfate date back to 1967, at which time the Sanitary Water Board (a predecessor of the Department) included them to prevent objectionable taste and odor in the water based on recommendations in the United States Public Health Service (US PHS) Drinking Water Standards of 1962. The US PHS recommended that chloride or sulfate should not exceed 250 mg/L in the water supply where other more suitable supplies were or could be made available. The limits were influenced primarily by considerations of taste. The Environmental Protection Agency's (EPA) SMCLs under the Federal Safe Drinking Water Act, which became effective in 1979, are set at the same levels. The Commonwealth's drinking water program is required to and has adopted the Federal standards into Chapter 109 (relating to safe drinking water).
In 1985, Chapter 93 was amended to provide for an exception to the Statewide application of water quality criteria at all points instream after mixing for four parameters: total dissolved solids, fluoride, nitrite-nitrate and phenolics. The criteria for these substances are applicable at the point of all existing or planned surface potable water supply withdrawals, fully protecting the potable water supply use. That change made in 1985 is identical to the changes the Board is proposing for sulfate and chloride. No adverse impacts have been documented instream from those criteria that apply at the point of all existing or planned surface potable water supply withdrawals. On November 18, 2000, the RBI amendments moved the provision, without change, to § 96.3(d) (relating to water quality protection requirements).
The Board proposes to add the sulfate and chloride criteria to the exceptions in § 96.3(d). This change will provide the appropriate level of protection for the potable water supply use. The current scientific information supports this change because, as discussed in this Preamble, there are no adverse human health effects from the substances. Effluent limitations required for discharges of these substances are calculated using critical (or stringent) conditions that include a requirement that the criteria be met 99% of the time, even at the low flow condition known as Q7-10 (that is, the lowest 7-day consecutive flow in a 10-year period), a condition that is seldom reached, even in drought conditions. This provides an additional margin of safety built into the effluent limitations to protect the potable water supplies, prior to withdrawal. In addition, other surface water uses will be protected by application of other criteria listed in § 93.7.
Water Quality Effects
a. Human Health
The criteria for sulfate and chloride protect potable water supplies from objectionable taste and odor impacts. There are no identified toxicity related human health impacts at or near the criteria values. In response to a 1996 amendment to the Federal Safe Drinking Water Act 42 U.S.C.A. § 300g-1(b)(12)(B) (relating to national drinking water regulations), the EPA and the Centers for Disease Control conducted the study, ''Health Effects from Exposure to High Levels of Sulfate in Drinking Water Study'' (815-R-99-001; January 1999) and organized a workshop to review the study and the available literature. The conclusions of the experts at the workshop are included in ''Health Effects from Exposure to High Levels of Sulfate in Drinking Water Workshop'' (815-R-99-002; January 1999). The expert panel concluded there is not enough scientific evidence on which to base a regulation, but existing data support issuing a health advisory, especially for infants, in places where sulfate levels in drinking water exceed 500 mg/L. The EPA announced that it would decide whether it will propose a primary MCL for sulfate some time in the near future.
The Department is also considering whether a health-based criterion should be developed for sulfate. The recent scientific literature indicates that a health-based criterion for sulfate may be between 500 and 1,000 mg/L. The Department is specifically seeking information and comment on an appropriate health-based value during this rulemaking process.
b. Aquatic Life
Instream aquatic life uses are not addressed by the current sulfate or chloride criteria. The EPA has recommended criteria for chloride to be protective of fish and aquatic life. The recommended criteria are a criterion maximum concentration of 860 mg/L and a criterion continuous concentration of 230 mg/L. The Commonwealth has not adopted the EPA criteria for aquatic life protection because an osmotic pressure criterion is applied. In 1984, the Board adopted the osmotic pressure criterion of 50 milliosmoles per kilogram to protect aquatic life from the adverse effects of dissolved solids. Dissolved solids include chloride, sulfate and other ions. Dissolved solids adversely impact aquatic life by altering the osmotic pressure of the external environment, which interferes with the organisms' osmoregulatory functions. The Department has protected aquatic life from the adverse effects of total dissolved solids through application of an osmotic pressure criterion (OP = 50 mOsm/kg). There has been no indication that the criterion is not protective of the use.
Advisory Groups
The Water Resources Advisory Committee (WRAC) to the Department discussed the draft regulation at its October 18, 2001, meeting. WRAC members commented on whether the Department will begin a trend toward the changing of criteria based on economic considerations and whether the Department evaluated how the changed standards will impact water systems. Overall, WRAC supported the Department's search for a health-based standard for sulfate, and a majority of WRAC members voted in favor of presenting the proposed rulemaking to the Board.
E. Summary of Regulatory Revisions
This proposed amendment to § 93.3 moves application of the specific water quality criteria for chloride and sulfate, which prevent objectionable taste and odor effects in potable water supplies, to the point of all existing or planned surface potable water supply withdrawals.
F. Benefits, Costs and Compliance
Executive Order 1996-1 provides for a cost/benefit analysis of the proposed amendment.
Benefits
Overall, the citizens of this Commonwealth will benefit from the recommended change because it provides the appropriate level of protection for the uses of surface waters in this Commonwealth.
Compliance Costs
The proposed amendment would reduce future compliance costs on the regulated community, when compared to the current regulation. Effluent limitations for chloride and sulfate will be applied where needed to protect potable water supplies, which will preclude the need for costly or perhaps nonexistent advanced treatment technologies or source reduction techniques to reduce these substances from wastewater discharges. Because effluent limits are case-specific, there is no accurate way to predict the costs required or saved by a single discharger or all dischargers.
Compliance Assistance Plan
The proposed amendment will be implemented according to procedures already available for the substances currently included in § 96.3(d). The technical guidance, Implementation Guidance for Application of § 93.5(e), will be amended to include the additional substances. Staff are available to assist regulated entities in complying with the regulatory requirements if any questions arise.
Paperwork Requirements
This proposed amendment should have no significant paperwork impact on the Commonwealth, its political subdivisions or the private sector.
G. Pollution Prevention
In keeping with Governor Schweiker's interest in encouraging pollution prevention solutions to environmental problems, this proposed amendment provides for controlling the discharge of the listed substances to the water environment to achieve or maintain water quality standards.
H. Sunset Review
This proposed amendment 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 January 11, 2002, the Department submitted a copy of the proposed rulemaking 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 amendment, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has any objections to any portion of the proposed amendment, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion of the amendment to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the amendment, by the Department, the Governor and the General Assembly.
J. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendment and the question relating to an alternative criterion for sulfate 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 March 12, 2002 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 March 12, 2002. 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-form regulation will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@state.pa.us and must also be received by the Board by March 12, 2002. A subject heading of the proposal and a return name and address must be included in each transmission.
K. Public Hearing
The Board will hold a public hearing for the purpose of accepting comments on this proposal. It will be held at 7 p.m. on February 26, 2002, at the Rachel Carson State Office Building, 400 Market Street, Harrisburg, PA.
Persons wishing to present testimony at the hearing are requested to contact Debra Failor 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 at each hearing.
Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact Debra Failor directly at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users) to discuss how the Board may accommodate their needs.
DAVID E. HESS,
ChairpersonFiscal Note: 7-375. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF
NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 96. WATER QUALITY STANDARDS IMPLEMENTATION § 96.3. Water quality protection requirements.
* * * * * (d) As an exception to subsection (c), the water quality criteria for total dissolved solids, nitrite-nitrate nitrogen, phenolics, chloride, sulfate and fluoride established for the protection of potable water supply shall be met at least 99% of the time at the point of all existing or planned surface potable water supply withdrawals unless otherwise specified in this title.
* * * * *
[Pa.B. Doc. No. 02-138. Filed for public inspection January 25, 2002, 9:00 a.m.]
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