RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Great Lakes Initiative
[32 Pa.B. 6098] The Environmental Quality Board (Board) is amending Chapter 93 (relating to water quality standards) to read as set forth in Annex A. The final-form rulemaking incorporates Federal requirements concerning prohibitions and phasing out of mixing zones for bioaccumulative chemicals of concern (BCCs) in waters of the Great Lakes System.
This notice is given under Board order at its meeting of September 17, 2002.
A. Effective Date
This final-form rulemaking is effective upon publication in the Pennsylvania Bulletin.
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. Persons with a disability may use the AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users) and request that the call be relayed. This final-form rulemaking is available electronically through the Department of Environmental Protection (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
This final-form rulemaking is made under the authority of sections 5(b)(l) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402), which authorize the Board to develop and adopt rules and regulations to implement the provisions of 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
The Board approved the proposed rulemaking on November 20, 2001, and it was published at 32 Pa.B. 427 (January 26, 2002) with a provision for a 45-day public comment period that closed on March 12, 2002.
The purpose of this final-form rulemaking is to revise existing water quality regulations in Chapter 93. The Great Lakes Initiative (GLI) requirements were promulgated at 40 CFR Part 132 (relating to water quality guidance for the Great Lakes System) at 60 FR 15366 (March 23, 1995) to provide for consistent protection of the Great Lakes System. The Commonwealth promulgated the regulations for this Commonwealth waters in the Great Lakes System on December 27, 1997, and the Environmental Protection Agency (EPA) approved the regulations on March 17, 2000.
The EPA had promulgated a mixing zone prohibition provision as part of the regulation, but the provision was vacated by the United States Court of Appeals for the District of Columbia Circuit in the case of American Iron & Steel Institute v. EPA, 115 F.3d 979 (D.C. Cir. 1997), and was remanded to the EPA for further consideration. In response to the Court's remand, the EPA published a proposal on October 4, 1999, to amend the guidance to reinstate the provision to prohibit mixing zones for BCCs (64 FR 53632). The EPA promulgated the final rule to amend Appendix F, Procedure 3.C of 40 CFR Part 132 to prohibit mixing zones for BCCs in the Great Lakes System, subject to certain exceptions for existing discharges, by publication in 65 FR 67638 (November 13, 2000). The regulatory amendment to Chapter 93 provides consistency with the Federal guidance for the Great Lakes System by eliminating opportunity for the use of mixing areas for discharges of toxic and persistent chemicals known as BCCs. Examples of BCCs are mercury and dioxin. BCCs in the waters of the Great Lakes are not flushed from the system but build up for long periods of time, allowing aquatic organisms to accumulate and magnify the pollutants. Animals and humans who consume the fish are subject to increased loadings of these toxic pollutants. This final-form rulemaking eliminates the use of mixing areas in calculating allowable discharge limits for BCCs, thereby lessening loadings to the Great Lakes System.
For existing discharges to waters of the Great Lakes System, the final-form rulemaking prohibits mixing zones for BCCs after November 15, 2010. New discharges of BCCs to waters of the Great Lakes System are subject to the mixing zone prohibition when the EPA approves the State's submission of the final-form rulemaking. The three Great Lakes states, the Commonwealth, Ohio and New York, which did not include the BCC mixing zone provision in their regulations, are required to submit amended regulations for the EPA approval by May 13, 2002. The Federal regulation provides for an extension to November 13, 2002, for states making progress toward adopting the provision.
On May 8, 2002, the Water Resources Advisory Committee approved the final draft recommendation for presentation to the Board.
E. Summary of Comments and Responses on the Proposed Rulemaking
A 45-day public comment period for the proposed rulemaking ended on March 12, 2002. Two comments were received. The first comment asked the Department to develop a compliance plan in case a BCC is found in an existing discharge at a later date by improved analytical methods. Because the Department addresses compliance on a case-by-case basis, no plan will be developed unless, and until, one is needed.
The other comment alleged that use of the word ''subpart'' in the proposed rulemaking was incorrect. After discussion with the Legislative Reference Bureau, ''subpart'' was replaced with a ''.'' and corresponding changes were made to the final-form rulemaking. An editorial change was also made to the definition of ''BCC,'' removing the word ''subpart.''
F. Benefits, Costs and Compliance
Executive Order 1996-1, ''Regulatory Review and Promulgation'' provides for a cost/benefit analysis of the final-form rulemaking.
Benefits
Overall, the citizens of this Commonwealth will benefit from the final-form rulemaking because it provides the appropriate level of protection of the waters in the Great Lakes System. The revision also assures compliance with the applicable Federal requirements.
Compliance Costs
The final-form rulemaking is not expected to impose any significant additional compliance costs on the regulated community. No current NPDES permits provide for discharges of BCCs to the Great Lakes System in this Commonwealth. For this reason, no costs associated with phase out of mixing provisions need to be addressed. New discharges would have to meet the requirement when discharging commences, but there is no way of knowing if or when discharges will be proposed.
Compliance Assistance Plan
The final-form rulemaking adds a requirement that, in practice, will only be applicable if there are new discharges of BCCs to waters of the Great Lakes System. The requirement is straightforward and will not require implementation guidance. Staff are available to assist regulated entities in complying with the regulatory requirements if any questions arise.
Paperwork Requirements
This final-form rulemaking 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 final-form rulemaking specifically provides for prevention of additional loadings of BCCs to the water environment by requiring that the addition of these substances be significantly limited, even beyond that necessary to meet water quality standards.
H. Sunset Review
The final-form rulemaking 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. In addition, water quality standards are required to be reviewed by the Department at least once every 3 years, with the results of the review to be submitted to the EPA.
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 notice of proposed rulemaking published at 32 Pa.B. 427, to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees for review and comment.
Under section 5(c) of the Regulatory Review Act, IRRC and the Committees were provided with copies of the comments received during the public comment period, as well as other documents when requested. In preparing this final-form rulemaking, the Department has considered the comments received from IRRC, the Committees and the public.
Under section 5.1(d) of the Regulatory Review Act (71 P. S. § 745.5a(d)), on October 28, 2002, this final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 7, 2002, and approved the final-form rulemaking.
J. Findings
The Board finds that:
(1) Public notice of the 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, and all comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposal published at 32 Pa.B. 427.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.
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 § 93.8a to read as set forth in Annex A.
(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 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.
DAVID E. HESS,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission, relating to this document, see 32 Pa.B. 5816 (November 23, 2002).)
Fiscal Note: Fiscal Note 7-374 remains valid for the final adoption of the subject regulation.
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
ANTIDEGRADATION REQUIREMENTS § 93.8a. Toxic substances.
(a) The waters of this Commonwealth may not contain toxic substances attributable to point or nonpoint source waste discharges in concentrations or amounts that are inimical to the water uses to be protected.
(b) Water quality criteria for toxic management substances shall be established under Chapter 16 (relating to water quality toxics management strategy--statement of policy) wherein the criteria and analytical procedures will also be listed. Chapter 16 along with changes made to it is hereby specifically incorporated by reference.
(c) Water quality criteria for toxic substances which exhibit threshold effects will be established by application of margins of safety to the results of toxicity testing to prevent the occurrence of a threshold effect.
(d) Nonthreshold carcinogenic effects of toxic substances, will be controlled to a risk management level of one excess case of cancer in a population of 1 million (1 × 10-6) over a 70-year lifetime. Other nonthreshold effects of toxic substances will be controlled at a risk management level as determined by the Department.
(e) Water quality criteria for toxics shall be applied in accordance with Chapter 96 (relating to water quality standards implementation) and any other applicable State and Federal laws and regulations. For carcinogens, the design conditions shall result in a lifetime--70 years--average exposure corresponding to the risk management level specified in subsection (d).
(f) The Department will consider both the acute and chronic toxic impacts to aquatic life and human health.
(g) The Department may consider synergistic, antagonistic and additive toxic impacts.
(h) At intervals not exceeding 1 year, the Department will publish a new or revised water quality criteria for toxic substances, and revised procedures for criteria development in the Pennsylvania Bulletin.
(i) A person challenging criteria established by the Department under this section shall have the burden of proof to demonstrate that the criteria does not meet the requirements of this section. In addition, a person who proposes an alternative site-specific criterion shall have the burden of proof to demonstrate that the site specific criterion meets the requirements of this section.
(j) The requirements for discharges to and antidegradation requirements for the Great Lakes System are as follows:
(1) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
BAF--Bioaccumulation Factor--The ratio in liters per kilogram of a substance's concentration in tissues of an aquatic organism to its concentration in the ambient water, when both the organism and its food are exposed and the ratio does not change substantially over time.
BCC--Bioaccumulative Chemical of Concern--A chemical that has the potential to cause adverse effects which, upon entering the surface waters, by itself or its toxic transformation product, accumulates in aquatic organisms by a human health BAF greater than 1,000, after considering metabolism and other physiochemical properties that might enhance or inhibit bioaccumulation, under the methodology in 40 CFR Part 132 Appendix B (relating to Great Lakes Water Quality Initiative). Current BCCs are listed in 40 CFR 132.6, Table 6.A (relating to pollutants of initial focus in the Great Lakes Water Quality Initiative).
Great Lakes System--The streams, rivers, lakes and other bodies of surface water within the drainage basin of the Great Lakes in this Commonwealth.
Open Waters of the Great Lakes--The waters within the Great Lakes in this Commonwealth lakeward from a line drawn across the mouth of the tributaries to the lakes, including the waters enclosed by constructed breakwaters, but not including the connecting channels.
(2) Total Maximum Daily Loads (TMDLs). TMDLs for Open Waters of the Great Lakes shall be derived following the procedures in 40 CFR Part 132, Appendix F, Procedure 3.D (relating to Great Lakes Water Quality Initiative implementation procedures).
(3) Statewide antidegradation requirements in this chapter and 95 (relating to water quality standards; and wastewater treatment requirements) and in the Federal regulation in 40 CFR 131.32(a) (relating to Pennsylvania) as applicable, apply to all surface waters of the Great Lakes System.
(4) If, for any BCC, the quality of the surface water exceeds the levels necessary to support the propagation of fish, shellfish and wildlife and recreation in and on the waters, that quality shall be maintained and protected, unless the Department finds that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the surface water is located.
[Pa.B. Doc. No. 02-2220. Filed for public inspection December 13, 2002, 9:00 a.m.]
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