RULES AND REGULATIONS
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 96]
Water Quality Standards Implementation--Chloride and Sulfate
[32 Pa.B. 6101] The Environmental Quality Board (Board) is amending Chapter 96 (relating to water quality standards implementation) to read as set forth in Annex A.
This order was adopted by the Board at its meeting of September 17, 2002.
A. Effective Date
The final-form rulemaking will go into effect 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 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's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
This final-form rulemaking is being 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 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 and Summary
The purpose of this final-form rulemaking is to revise existing water quality regulations in Chapter 96. This final-form rulemaking adds the sulfate and chloride criteria to the exceptions in § 96.3(d) (relating to water quality protection requirements). Section 96.3(d) provides for exception to the application of water quality criteria at all points instream after mixing for certain substances. The criteria for these substances, total dissolved solids (TDS), fluoride, nitrite-nitrate, phenolics, sulfate and chloride, are applicable at the point of all existing or planned surface potable water supply withdrawals, fully protecting the potable water supply use.
This final-form rulemaking will provide the appropriate level of protection for the potable water supply use. The current scientific information supports this final-form rulemaking because there are no adverse human health effects from the substances at the levels that the substances are regulated. 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 general criteria and other criteria listed in §§ 93.6 and 93.7 (relating to general water quality criteria; and specific water quality criteria).
The Board has considered all of the public comments received on its proposed rulemaking in preparing this final-form rulemaking. The draft final-form rulemaking was discussed with and approved by the Department's Water Resources Advisory Committee on May 8, 2002.
E. Summary of Comments and Responses on the Proposed Rulemaking
In the Preamble to the proposed rulemaking, the Department specifically sought information and comment on an appropriate health-based value for sulfate. Although some information was provided with comments, no new information was presented. The Department is not recommending a change to the sulfate water quality criterion.
Comments were received from one person who offered testimony at the public hearing and from nine other persons who provided written comments. All but one comment supported the proposed rulemaking. Some comments supported changing the sulfate and chloride criteria but there is not sufficient information on which to develop a change in the water quality criteria. The one opposing comment was concerned about protection of the esthetic use under the new rulemaking. The esthetic use, as well as the aquatic use, is protected by the osmotic pressure criterion and, if necessary, by the general narrative criteria in § 93.6.
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 change because it provides the appropriate level of protection for the uses of the Commonwealth's surface waters.
Compliance Costs
The final-form rulemaking will reduce future compliance costs on the regulated community, when compared to the existing regulation. Effluent limitations for chloride and sulfate will be applied where needed to protect potable water supplies, which will preclude the need for costly 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 final-form rulemaking 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 Section 93.5(e) (DEP 391-2000-019), will be amended to include sulfate and chloride and also to update the outdated section reference to reflect § 96.3(d). Staff members are available to assist regulated entities in complying with the regulatory requirements if any questions arise.
Paperwork Requirements
The 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 provides for controlling the discharge of the listed substances to the water environment to achieve or maintain water quality standards.
H. Sunset Review
This 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.
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. 428 (January 26, 2002), 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 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 all comments were considered.
(3) This regulation does not enlarge the purpose of the proposal published at 32 Pa.B. 428.
(4) This regulation 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 96, are amended by amending § 96.3 to read as set forth at 32 Pa.B. 428.
(b) The Chairperson of the Board shall submit this order and 32 Pa.B. 428 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 32 Pa.B. 428 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 7-375 remains valid for the final adoption of the subject regulation.
[Pa.B. Doc. No. 02-2221. Filed for public inspection December 13, 2002, 9:00 a.m.]
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