RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[ 25 PA. CODE CH. 93 ]
Triennial Review of Water Quality Standards
[39 Pa.B. 2523]
[Saturday, May 16, 2009]The Environmental Quality Board (Board) is amending Chapter 93 (relating to water quality standards) as set forth in Annex A. This order was adopted by the Board at its meeting of January 20, 2009.
A. Effective Date
These amendments will be effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information contact Richard H. Shertzer, Chief, Division of Water Quality Standards, Bureau of Water Standards and Facility Regulation, 11th Floor, Rachel Carson State Office Building, P. O. Box 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 Pennsylvania 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) web site at www.depweb.state.pa.us.
C. Statutory Authority
The final-form rulemaking is being made under the authority of sections 5(b)(1) 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 provisions of The Clean Streams Law and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grants to the Board the power and duty to formulate, adopt and promulgate rules and regulations for the proper performance of the work of the Department. In addition, section 303 of the Federal Clean Water Act (33 U.S.C.A. § 1313) sets forth requirements for water quality standards and the Federal regulations in 40 CFR 131.32 (relating to Pennsylvania) set forth certain requirements for portions of the Commonwealth's antidegradation program and the Federal regulation in 40 CFR 131.41 (relating to bacteriological criteria for those states not complying with Clean Water Act section 303(i)(1)(A)) sets forth bacteria criteria for coastal recreation waters in this Commonwealth.
D. Background and Summary
Section 303(c)(1) of the Clean Water Act requires that states periodically, but at least once every 3 years, review and revise as necessary, their water quality standards.
This Commonwealth's water quality standards (WQS), which are codified in Chapter 93 and portions of Chapter 92 (relating to National Pollutant Discharge Elimination System Permitting, Monitoring and Compliance), are designed to implement sections 5 and 402 of The Clean Streams Law and section 303 of the Federal Clean Water Act. The WQS consist of the designated and existing uses of the surface waters of this Commonwealth, along with the specific numeric and narrative criteria necessary to achieve and maintain those uses and an antidegradation policy. Thus, WQS are in-stream water quality goals that are implemented by imposing specific regulatory requirements, such as treatment requirements and effluent limitations, on individual sources of pollution. These revised amendments constitute the Commonwealth's current triennial review of its WQSs.
The triennial review amendments, originally approved by the Board at its meeting of September 16, 2008, were reviewed by the General Counsel, Secretary of the Budget and the Secretary of Planning and Policy, in accordance with the Governor's Executive Order dated February 6, 1996, and titled ''Regulatory Review and Promulgation.'' Their review and approval of these amendments is evidence of the Commonwealth's ''compelling interest'' to protect human health even though the amendments may exceed Federal standards.
The Independent Regulatory Review Commission (IRRC), however, met on November 20, 2008, and disapproved that final-form rulemaking. IRRC's sole reason for disapproval of the final-form rulemaking focused on the addition of a water quality criterion for molybdenum (Mo), a toxic substance.
Under the Regulatory Review Act (71 P. S. §§ 745.1--745.12), an agency has three options to respond to a disapproval of its final-form rulemaking by IRRC. An agency may withdraw the amendment from further consideration, or an agency may decide to resubmit the amendment to IRRC with or without revisions. The Board decided to modify its triennial review rulemaking and to resubmit it to IRRC with revisions.
In response to IRRC's disapproval order, dated November 20, 2008, the Department asked the Board to reconsider its earlier approval of the triennial review rulemaking package and to remove the Mo water quality criterion at its January 20, 2009, meeting. At this meeting the Board amended its previous approval (dated September 16, 2008) by deleting the water quality criterion for Mo.
The Board deleted the water quality criterion for Mo to avoid further delay in final adoption of the triennial review final-form rulemaking. The final-form rulemaking contains many other needed revisions to the Commonwealth's water quality standards. Any further delay in final publication of these other needed changes is a problem because the Department is required by the Environmental Protection Agency (EPA) to complete its triennial review in a timely manner, and submission of a final triennial review to EPA is already beyond the 3-year due date. It is anticipated that removal of the Mo criterion from this final-form rulemaking will allow the amended regulation to be approved as a final-form rulemaking under the Regulatory Review Act because Mo was the only issue identified by IRRC in its disapproval order. The revised rulemaking otherwise remains as it was considered and approved by the Board on September 16, 2008.
In light of the continuing disagreement with IRRC concerning the need for and justification for a Statewide Mo criterion, the Department plans to return to the Board in the near future with a new proposed rulemaking to adopt a Statewide Mo water quality criterion. With this new proposed rulemaking, there will be an opportunity to seek additional scientific support from the public for the criterion development. Until a future rulemaking adopts Mo as a Statewide criterion, the Department will continue to exercise its existing authority to develop Mo criteria for individual permits on a case-by-case basis.
Regulatory revisions in this triennial review final-form rulemaking include: updating the water quality criteria; removing the Statewide criterion for Mo; merging sections of Chapter 16 (relating to water quality toxics management strategy--statement of policy) into Chapter 93; adding a definition in § 93.1 to clarify the term ''conventional treatment'' for potable water supply (PWS) that is used in § 93.3 (relating to protected water uses), Table 1 and clarifying in the footnote to Table 3 in § 93.7 (relating to specific water quality criteria) that other sensitive ''critical uses'' may apply; and correcting and changing drainage lists and other typographic and grammatical errors.
The triennial review also requires that states reexamine water body segments that do not meet the fishable or swimmable uses specified in section 101(a)(2) of the Federal Clean Water Act (33 U.S.C.A. § 1252(a)(2)). The Department evaluated these two water bodies in this Commonwealth where the uses are not currently met: (1) the Harbor Basin and entrance channel to Outer Erie Harbor/Presque Isle Bay (Drainage List X, § 93.9x); and (2) several zones in the Delaware Estuary (Drainage Lists E and G, §§ 93.9e and 93.9g).
The swimmable use designation was deleted from the Harbor Basin and entrance channel demarcated by United States Coast Guard buoys and channel markers on Outer Erie Harbor/Presque Isle Bay because pleasure boating and commercial shipping traffic pose a serious safety hazard in this area. This decision was further supported by a Use Attainability (UAA) study conducted by the Department in 1985. Because the same conditions and hazards exist today, no change to the designated use for Outer Erie Harbor/Presque Isle Bay is proposed.
In April 1989, the Department cooperated with the Delaware River Basin Commission (DRBC), EPA and other DRBC signatory states on a comprehensive UAA study in the lower Delaware River and Delaware Estuary. This study resulted in appropriate recommendations relating to the swimmable use, which the DRBC included in water use classifications and water quality criteria for portions of the tidal Delaware River in May 1991. The appropriate DRBC standards were referenced in §§ 93.9e and 93.9g (relating to drainage list E; and drainage list G) in 1994. The primary water contact use remains excluded from the designated uses for river miles 108.4 to 81.8 because of continuing significant impacts from combined sewer overflows, and hazards associated with commercial shipping and navigation.
The Department provided extensive opportunities for the public to comment on this final-form rulemaking. The Department's Water Resources Advisory Committee (WRAC), provided input on the proposed rulemaking at its May 10, 2006, October 13, 2006, and May 9, 2007. In addition, the Department presented the proposed rulemaking package to the Agricultural Advisory Board on August 22, 2007.
The amendments were adopted by the Board as proposed rulemaking at its October 16, 2007, meeting. The proposed rulemaking was published at 38 Pa.B. 236, 248 (January 12, 2008) with provision for a 45-day public comment period, including two public meetings and hearings that were held at the Department's Southcentral Regional Office in Harrisburg, PA on February 14, 2008. A correction was published at 38 Pa.B. 612 (February 2, 2008) to correct the criteria for two chemicals found in the proposed Table 5, § 93.8c (relating to human health and aquatic life criteria for toxic substances). Based on a request received, the public comment period was extended an additional 30 days and closed on March 27, 2008, as published at 38 Pa.B. 976 (February 23, 2008). The Board received public comments from 10 commentators including oral testimony from three witnesses at the February 14 public hearings. The comments received on the proposed rulemaking are summarized in Section E as follows.
The draft final-form rulemaking was discussed with WRAC on July 22, 2008, when the committee deliberated on aspects of the rulemaking including the adoption of Statewide criterion for Mo and the proposed definition of ''conventional treatment.'' Although WRAC approved the draft final-form rulemaking for consideration by the Board, some members of the WRAC expressed their concerns with the Mo criterion and the health data used to create the particular criterion. WRAC also provided recommendations to further clarify the proposed definition for ''conventional treatment,'' as it relates to the protection of the PWS use. The valuable input from the public and the collective knowledge and experience drawn from advisory committees and others on this proposal has been utilized to develop this final-form rulemaking. The Board has considered all of the public comments received on its proposed rulemaking, and all claims asserted in the November 20, 2008, IRRC's Disapproval Order in preparing this final-form rulemaking.
E. Summary of Responses to Comments and Changes to the Proposed Rulemaking
Comments were received from 10 commentators, as a result of the public hearings and public comment period, including IRRC and the EPA Region 3. The comments received covered four major topics: 1) the proposed Statewide Mo criterion; 2) clarification of language being added to § 93.7(a) concerning intervening critical uses; 3) moving the toxics criteria from Chapter 16 to Chapter 93; and 4) clarification on how the site-specific criteria in Chapter 16, Appendix A, Table 1A will be used.
Most of the comments received on the proposed rulemaking involved requests for the Board to justify the proposed Statewide criterion for Mo. For those facilities currently known to discharge Mo, the biological and chemical conditions of the receiving waters are not different from the conditions for other waters within this Commonwealth. Therefore, the Department believed it would be more effective and efficient to establish consistent, Statewide protection from the toxic effects of Mo. A more detailed analysis of the justification for a Mo criterion is described in Section F of this order.
Comments were received during the public comment period, and discussed during the July 22, 2008, WRAC, which suggested the Department used inappropriate data and methods to develop the proposed water quality criterion for Mo. The commentators contended that the Department did not consider the most recent and technically justifiable toxicological data in establishing the proposed Mo standard, nor did it properly calculate the standard. Commentators suggested that the Department base the determination on another study, Effects of Molybdenum on Fertility of Male Rats by Pandey and Singh, (BioMetals. 15: 65-72, 2002), which they contended contained better data. Based on this study, commentators suggested the Department use the Benchmark Dose Method (BMD), which may be used in calculating human health criteria, as an alternative to calculating the reference dose (RfD). Commentators believed BMD is an improved method in comparison to using the NOAEL/LOAEL (no observed adverse effects level/lowest observed adverse effects level), which is the approach used by the Department to calculate the RfD for the Mo criterion. While the EPA has approved the use of the BMD, it's use must be based on the most sensitive endpoint. Data input to the BMD must be obtained from reviewing several critical studies to establish the most sensitive endpoint. This endpoint is then used to calculate the RfD.
The commentators singled out one study upon which they requested the RfD be calculated. The EPA's and the Department's evaluation of the request found that the study did not represent the most sensitive study population or the most sensitive endpoint. Therefore, due to insufficient data for BMD determination, the EPA recommended that the Department use the NOAEL/LOAEL approach to calculate the reference dose.
The Department used information from the U.S. EPA Integrated Risk Information System (IRIS) to obtain supporting studies in developing a criterion for Mo. IRIS is an electronic database containing information on human health effects that may result from exposure to various substances in the environment. IRIS is prepared and maintained by the EPA's National Center for Environmental Assessment within the Office of Research and Development.
The Department originally developed a criterion for Mo using only toxicity data available in the IRIS data base. At the request of a commentator, the EPA Headquarters approved supplementing the IRIS database with additional sources of toxicity information obtained from a peer-reviewed toxicity report from the Institute of Medicine (IOM), which was published by the National Academy Press. This updated, combined dataset was then used to develop the best available scientifically calculated Mo criterion.
EPA Headquarters and EPA Region 3 staff reviewed and concurred that the Department used the appropriate data and methodologies, and developed an appropriate recommended Statewide human health criterion for Mo.
Although no public comments were received regarding the proposed definition for ''conventional treatment,'' further refinements were made to the definition on final-form rulemaking based on discussion and recommendations by WRAC. Conventional treatment, for the purpose of surface water protection of the PWS use, should reflect the treatment processes required to filter and disinfect water. The water supply treatment scheme will not have to bear the burden of removing nonconventional pollutants that should otherwise be controlled by those discharging the pollutants.
A comment received expressed concern that there may be confusion if all provisions in 40 CFR 131.41 are adopted by reference in § 93.9x (relating to drainage list X). The commentator recommended the adoption of only subsection (c) of the Federal regulation. Upon further evaluation, 40 CFR 131.41(a)--(e) is incorporated into the State regulations on final-form rulemaking. Only subsection (f) is excluded since it identifies a scheme for compliance schedules which is already addressed in Chapter 92.
Based on comments received, revisions to the ''Critical Use'' footnote in § 93.7(a) regarding ''other intervening, more sensitive uses'' were made. Protected and Statewide water uses, identified in §§ 93.3 and 93.4 (relating to Statewide water use), will be protected using criteria in §§ 93.6 (relating to general water criteria), 93.7 and 93.8c and site-specific criteria developed under § 93.8d (relating to development of site-specific water quality criteria). Based on activities in the watershed that require the protection of intervening uses, site-specific criteria will be developed on a case-by-case basis.
Other commentators requested clarification on why the Board was moving criteria from Chapter 16 into Chapter 93. Moving the criteria for toxic substances into Chapter 93 will give these criteria the full effect and advantage of regulation. This is appropriate since these criteria are not being changed or supplemented as frequently as originally anticipated. The original incentive for listing criteria as a Statement of Policy in Chapter 16 was to allow for flexibility in the timing of criteria development and revision.
The EPA supported the movement of criteria into regulation but requested clarification in § 93.8d(e) on how the site-specific criteria in Chapter 16, Appendix A, Table 1A will be used. Background or natural conditions are site-specific by nature, so the EPA is unsure how that criteria will be incorporated into Table 5, which appears to include only Statewide criteria. A new criterion to be placed in Chapter 16, Appendix A, Table 1A will remain a site-specific criterion as originally developed and be incorporated into the appropriate portion of §§ 93.9a--93.9z that relates to ''Exceptions to Specific Criteria'' unless, during rulemaking, it is determined that the same criterion has general Statewide applicability.
A detailed description of the revisions to the Chapter 93 proposal follows:
Section 93.1. Definitions.
The proposed definition for ''conventional treatment'' is revised. The definition will reflect the treatment processes required to filter and disinfect water.
Conventional treatment--for the purpose of surface water protection of the Potable Water Supply (PWS) use, conventional treatment is coagulation, followed by filtration for the removal of solids and disinfection for the control of pathogens to produce water for drinking and other human consumption.
Section 93.7. Specific water quality criteria.
The footnote for ''Critical Use'' in Table 3 is revised to clarify that intervening uses on a waterbody may be protected.
* Critical Use: The designated or existing use criteria are designed to protect. More stringent site-specific criteria may be developed to protect other more sensitive, intervening uses.
In § 93.7(d), the reference to Chapter 16, Appendix A, Table 1A will not be added, as proposed, because it is not applicable to a natural quality determination.
Section 93.8c. Human health and aquatic life criteria for toxic substances.
On January 20, 2009, the Board approved an amendment to this final-form rulemaking by removing the Mo criterion from Table 5 in response to IRRC's disapproval.
Section 93.8d. Development of site-specific water quality criteria.
Section 93.8d is restructured to further clarify how site-specific water quality criteria will be developed, reviewed and promulgated. The Department will consider a request for site-specific criteria when: (1) there exist site-specific biological or chemical conditions of receiving waters which differ from conditions upon which the Statewide water quality criteria were based; (2) more stringent criteria are needed for a parameter listed in § 93.7 to protect more sensitive, intervening uses; or (3) there exists a need for a site-specific criterion for a substance not listed in Chapter 93, Table 5.
All scientific studies shall be performed in accordance with the procedures and guidance in Chapter 16 and the Water Quality Standards Handbook (EPA 1994), as amended and updated, including: ''Guidance on the Determination and Use of Water-Effect Ratios for Metals'' (EPA-823-B-94-001, February 1994); and the ''Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health'' (2000). Other guidance approved by the Department, which is based on other EPA-approved or scientifically defensible methodologies, may be used. A proposed plan of study shall be submitted to the Department for review, consideration and approval prior to conducting these studies.
If the Department determines that site-specific criteria are appropriate according to one of the three conditions indicated previously, and the studies were conducted according to appropriate scientific methodologies, the Department will: (1) publish the site-specific criterion in the Pennsylvania Bulletin, along with other special conditions under § 92.61(a)(5) (relating to public notice of permit application and public hearing) and provide for public participation and public hearing in accordance with §§ 92.61, 92.63 and 92.65 (relating to public access information; and notice of reissuance of permits); (2) maintain publicly available lists of site-specific criteria; (3) submit the methodologies used for site-specific criteria development to the EPA's Regional Administrator for review and approval, within 30 days of the Department's final action; and (4) prepare a recommendation to the Board in the form of proposed rulemaking, incorporating that criterion for the waterbody segment.
If the Department determines that new Statewide criteria or modifications to Statewide criteria are appropriate, the Department will prepare a recommendation to the Board in the form of proposed rulemaking, incorporating the criteria into Chapter 93. The new criteria and changes to the criteria will become effective following adoption by the Board as final-form rulemaking and publication in the Pennsylvania Bulletin.
F. Summary of Response to the Independent Regulatory Review Commission's Disapproval Order
IRRC's disapproval order determined that this triennial review amendment is consistent with the statutory authority of The Clean Streams Law and the intention of the General Assembly. IRRC, however, also found that the Mo criterion portion of the proposed rulemaking was not in the public interest, based on criteria of the Regulatory Review Act.
IRRC's sole objection was the adoption of a Statewide water quality criterion for Mo. In its disapproval order, IRRC asserted three reasons for the disapproval: 1) IRRC questioned whether the Department had offered sufficient justification regarding the specific interest of the Commonwealth to exceed Federal water quality standards; 2) IRRC stated that the Board had not sufficiently addressed the economic and fiscal impact of imposing this new water quality criterion on the regulated community; and 3) IRRC stated that the Board had not fully demonstrated the impact of the consumption of Mo on the public health.
First, State-specific standards are often developed based on the types of industry, and pollutants related to those industries, that are located in this Commonwealth. Industries located in this Commonwealth that may discharge Mo include specialty steel, coal mining and coal-fired power generation.
Mo is shown to cause gout-like symptoms, characterized by pain, swelling, inflammation and deformities of the joints, and in all cases, an increase in the uric acid content of the blood. In addition, disorders of the gastrointestinal tract, liver, kidneys and the central nervous system, including brain function, have been documented. Mo is considered to be a toxic metal and has also been labled an embryonic mammalian teratogen because it can cause developmental deformities, as described in the Toxicity Profile--Toxicity Summary for Molybdenum prepared by the Oak Ridge National Laboratory and available at the online Risk Assessment Information System (RAIS).
Possible human exposure pathways for Mo include dermal, inhalation and ingestion. The Mo criterion was developed considering the ingestion pathway through both drinking water and fish consumption. Exposure conditions used include two liters of water per day and 17.5 grams of fish per day (as recommended by the EPA) for a 70 kg adult.
In Chapter 93, a ''toxic substance'' is defined as ''a chemical or compound in sufficient quantity or concentration which is, or may become, harmful to human, animal or plant life.'' Scientific literature shows that crops contaminated by Mo can be fatal to livestock if ingested. This condition has been documented in this Commonwealth. Based on the scientific evidence and the fact that industries in this Commonwealth discharge Mo, it is appropriate for the Commonwealth to ''exceed'' Federal water quality standards by adopting a standard for Mo.
Jon Capacasa, Director of EPA Region 3's Water Protection Division, provided a November 18, 2008, letter of support to Chairperson Coccodrilli of IRRC, in which he states that ''PADEP developed [a] numeric criterion for molybdenum to protect human health in accordance with its own state regulations (Chapter 16, Guidelines for Development of Human Health-Based Criteria), using the guidelines in PA Code § 16.32 for threshold level toxic effects and EPA's Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health (EPA-822-B-00-004, October 2000).'' Jon Capacasa went on to say that EPA Region 3 supports ''both the methodologies and the variables that PADEP used to develop a human health criterion for molybdenum. EPA also supports PADEP's determination that a molybdenum criteri [on] is necessary to protect Pennsylvania's statewide potable water supply use.''
The Department coordinated its Mo criteria development effort with EPA's regional water quality standards staff and its headquarters toxicologists. Even in the absence of a Federal standard, the EPA supports the numeric criterion that the Department developed for Mo.
Second, as the EPA properly indicated in its comments to IRRC, ''economic and technological factors may not be used to justify adoption of criteria'' under the Federal Clean Water Act. Water quality criteria are strictly based on science and are developed to protect water uses. Economic and technological factors are considered at the National Pollutant Discharge Elimination System (NPDES) permitting stage, when the conditions are established under which a permittee may discharge.
Although the Department is not obligated or permitted to evaluate technology when developing science-based water quality criteria, in response to IRRC's concerns, the Department provided a list of available wastewater treatment methods for Mo. The Federal Clean Water Act establishes a goal of pollution elimination. See 33 U.S.C. § 1251(a). The law envisions science-based water quality standards that drive technology development to further the goal of eliminating water quality degradation.
The application of technology and the compliance time available to employ the technology are considered at the permitting stage. As stated at IRRC's public hearing, to the extent that new treatment technology is being developed or tested, the Department will work with a discharger to provide for an appropriate time to achieve permit limits.
Finally, although IRRC asserts that there is a lack of data demonstrating adverse health impacts on the residents of this Commonwealth, the EPA and states regularly rely on National health data to support the development of water quality standards. The Department is concerned that IRRC has misapprehended or disregarded the strong scientific and supportive evidence during its review of this regulation. The Department based its scientific review on references that rely on a compilation of approximately 680 scientific papers. The Department has the expertise in developing water quality criteria and IRRC should defer to the Department's expertise on these scientific issues.
G. Benefits, Costs and Compliance
1. Benefits. Overall, the Commonwealth, its citizens and natural resources will benefit from these recommended changes because they provide the appropriate level of protection to preserve the integrity of existing and designated uses of surface waters in this Commonwealth. Protecting water quality provides economic values to present and future generations in the form of clean water, recreational opportunities and aquatic life protection. It is important that the citizens of this Commonwealth realize all of these benefits, and the Department ensures that activities that depend on surface water or that may affect its chemical, biological and physical integrity can continue in a manner that is environmentally, socially and economically sound. Maintenance of water quality ensures its future availability for all uses.
2. Compliance Costs. These final-form amendments to Chapter 93 may impose additional compliance costs on the regulated community. These regulatory changes are necessary to improve total pollution control. The expenditures necessary to meet new compliance requirements may exceed that which is required under existing regulations.
Persons conducting or proposing activities or projects shall comply with the regulatory requirements relating to designated and existing uses. Persons expanding a discharge or adding a new discharge point to a stream could be adversely affected if they need to provide a higher level of treatment to meet the more stringent criteria for selected parameters or there are changes in designated and existing uses of the stream. These increased costs may take the form of higher engineering, construction or operating cost for wastewater treatment facilities. Treatment costs are site-specific and depend upon the size of the discharge in relation to the size of the stream and many other factors. Therefore, it is not possible to precisely predict the actual change in costs. Economic impacts would primarily involve the potential for higher treatment costs for new or expanded discharges to streams that are redesignated. The initial costs from technologically improved treatments may be offset over time by potential savings from and increased value of improved water quality through these improved and possibly more effective or efficient treatments.
3. Compliance Assistance Plan. The final-form rulemaking has been developed as part of an established program that has been implemented by the Department since the early 1980s. The revisions are consistent with, and based on existing Department regulations.
This final-form rulemaking will be implemented through the Department's permit and approval actions. For example, the NPDES permitting program bases effluent limitations on the water uses of the stream. Permit conditions are established to assure water quality criteria are achieved and water uses are protected. No new compliance assistance measures are anticipated. Staff is available to assist regulated entities in complying with the regulatory requirements if questions arise.
4. Paperwork Requirements. These regulatory revisions should have no significant paperwork impact on the Commonwealth, its political subdivisions, or the private sector. There may be some additional paperwork requirements for new or expanding dischargers to streams upgraded to ''high quality'' or ''exceptional value.'' For example, NPDES general permits are not available for new or expanding discharges to these streams. Thus, an individual permit and its associated paperwork would be required. Additionally, paperwork associated with demonstrating social and economic justification may be required for discharges to certain high quality waters and consideration of nondischarge alternatives is required for discharges to these special protection waters.
H. Pollution Prevention
WQS are a major pollution prevention tool because they protect water quality and designated and existing uses. The final-form rulemaking will be implemented through the Department's permit and approval actions. For example, the NPDES bases effluent limitations on the designated use of the stream and the water quality criteria necessary to achieve designated and existing uses.
I. Sunset Review
This final-form rulemaking 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.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on December 21, 2007, the Department submitted a copy of the proposed rulemaking published at 38 Pa.B. 236, to IRRC and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees (Standing Committees) for review and comment.
Under section 5(c) of the Regulatory Review Act, the Department provided IRRC and the Standing Committees with copies of the comments received on the proposed rulemaking, as well as other documentation. The Department and Board have considered all public comments in preparing this final-form rulemaking.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on November 19, 2008, the Board's final-form rulemaking, dated September 16, 2008, was deemed approved by the House Standing Committee. The Senate Standing Committee, however, recommended, on October 8, 2008, that IRRC disapprove the original final-form rulemaking, and requested additional time to review IRRC's action on that final-form rulemaking. Under section 5.1(e) of the Regulatory Review Act, IRRC met on November 20, 2008, and disapproved the Board's final-form rulemaking dated September 16, 2008.
Under section 7(c) of the Regulatory Review Act (71 P. S. § 745.7(c)), on February 6, 2009, the Department submitted a copy of the revised final-form rulemaking to IRRC and the Standing Committees.
Under section 7(c.1) of the Regulatory Review Act (71 P. S. § 745.7(c.1)), on February 26, 2009, IRRC approved the revised final-form rulemaking. Under section 7(d) of the Regulatory Review Act, on March 13, 2009, the revised final-form rulemaking was deemed approved by the House and Senate Standing Committees.
K. Findings of the Board
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. In addition, Board hearings were held, and the public comment period was extended. All comments were considered.
(3) This final-form rulemaking does not enlarge the purpose of the proposal published at 38 Pa.B. 236 or the correction published at 38 Pa.B. 612.
(4) This final-form rulemaking is necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this order.
L. Order of the Board
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 93, are amended by amending §§ 93.1, 93.3, 93.7, 93.8a, 93.8d, 93.9, 93.9d, 93.9f, 93.9i, 93.9l, 93.9m, 93.9q, 93.9v and 93.9x, by deleting § 93.8 and by adding §§ 93.8b, 93.8c and 93.8e to read as set forth in Annex A, with ellipses referring to the existing text of the regulations.
(Editor's Note: In addition to the amendments ordered in subsection (a), the regulations of the Department are amended by adding the designation ''MF'' upon codification in §§ 93.9a--93.9o and 93.9z.)
(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 Standing 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.
JOHN HANGER,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 39 Pa.B. 1369 (March 14, 2009).)
(Editor's Note: For a Statements of Policy relating to this rulemaking, see 39 Pa.B. _____ (May 16, 2009).)
Fiscal Note: Fiscal Note 7-421 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
GENERAL PROVISIONS § 93.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
* * * * * Conventional treatment--For the purpose of surface water protection of the Potable Water Supply (PWS) use, coagulation, followed by filtration for the removal of solids, and disinfection for the control of pathogens to produce water for drinking and other human consumption.
* * * * * Toxic substance--A chemical or compound in sufficient quantity or concentration which is, or may become, harmful to human, animal or plant life. The term includes, but is not limited to, priority pollutants and those substances, which are identified in Tables 5 and 6. Additional toxic substances are also described in Chapter 16 Appendix A, Table 1A (relating to site-specific water quality criteria for toxic substances).
WER--Water Effect Ratio--A factor that expresses the difference between the measures of the toxicity of a substance in laboratory water and the toxicity in site water. The WER provides a mechanism to account for that portion of a metal that is toxic under certain physical, chemical or biological conditions.
* * * * * § 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 Table 1:
TABLE 1
Symbol Protected Use Aquatic Life * * * * *
MF Migratory Fishes--Passage, maintenance and propagation of anadromous and catadromous fishes and other fishes which move to or from flowing waters to complete their life cycle in other waters. * * * * *
Water Supply * * * * * IRS Irrigation--Used to supplement precipitation for crop production, maintenance of golf courses and athletic fields and other commercial horticultural activities. * * * * * § 93.7. Specific water quality criteria.
(a) Table 3 displays specific water quality criteria and associated critical uses. The criteria associated with the Statewide water uses listed in § 93.4, Table 2 apply to all surface waters, unless a specific exception is indicated in §§ 93.9a--93.9z. Other specific water quality criteria apply to surface waters as specified in §§ 93.9a--93.9z. All applicable criteria shall be applied in accordance with this chapter, Chapter 96 (relating to water quality standards implementation) and other applicable State and Federal laws and regulations.
TABLE 3
Parameter Symbol Criteria
Critical Use* * * * * *
Ammonia
NitrogenAm The maximum total ammonia nitrogen concentration (in mg/L) at all times shall be the numerical value given by: un-ionized ammonia nitrogen (NH3-N) x (log-1[pKT-pH] + 1), where: CWF,
WWF,
TSF,
MF* * * * * * Critical Use: The designated or existing use the criteria are designed to protect. More stringent site-specific criteria may be developed to protect other more sensitive, intervening uses.
(b) Table 4 contains specific water quality criteria that apply to the water uses to be protected. When the symbols listed in Table 4 appear in the Water Uses Protected column in §§ 93.9a--93.9z, they have the meaning listed in the second column of Table 4. 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.
* * * * * (d) If the Department determines that natural quality of a surface water segment is of lower quality than the applicable aquatic life criteria in Table 3 or 5, the natural quality shall constitute the aquatic life criteria for that segment. All draft natural quality determinations will be published in the Pennsylvania Bulletin and be subject to a minimum 30-day comment period. The Department will maintain a publicly available list of surface waters and parameters where this subsection applies, and will, from time to time, submit appropriate amendments to §§ 93.9a--93.9z.
§ 93.8. (Reserved).
§ 93.8a. Water quality criteria for toxic substances.
* * * * * (b) Water quality criteria for toxic substances shall be established as described under Chapter 16 (relating to water quality toxics management strategy--statement of policy). The Department will develop water quality criteria for toxic substances not listed in Chapter 93, Table 5 in accordance with § 93.8d (relating to development of site-specific water quality criteria) and Chapter 16. Appendix A, Table 1A in Chapter 16 lists site-specific human health and aquatic life criteria that have been recently developed or adopted by the Department based on approved methodologies and the best scientific information currently available. The approved analytical procedures and detection limits for these substances will also be listed in Chapter 16. Chapter 16, along with changes made to it, is hereby specifically incorporated by reference.
* * * * * (h) The Department will periodically, but at least once every 3 years, review, revise as necessary, and publish new or revised water quality criteria for toxic substances, and revised procedures for criteria development in the Pennsylvania Bulletin.
* * * * * (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 Chapter 96 (relating to water quality standards implementation) 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.
§ 93.8b. Metals criteria.
Dissolved criteria are footnoted in Table 5, and have been developed by applying the most current EPA conversion factors to the total recoverable criteria. The EPA factors are listed in the following Conversion Factors Table.
Conversion Factors Table
Chronic Acute Source Arsenic 1.000 (As3+) 1.000 (As3+) 1,2 Cadmium 1.101672- (ln[H] × 0.041838) 1.136672-
(ln[H] × 0.041838)2 Chromium VI 0.962 0.982 1,2 Copper 0.960 0.960 1,2 Lead* 1.46203-
(ln[H] × 0.145712Mercury 0.85 0.85 1,2 Nickel 0.997 0.998 1,2 Selenium 0.922 0.922 1 Silver NA 0.85 2 Zinc 0.986 0.978 1,2 * Conversion factor applies to both acute and chronic criteria.
Source 1--Final Water Quality Guidance for the Great Lakes System (60 FR 15366, March 23, 1995)
Source 2--Establishment of Numeric Criteria for Priority Pollutants; Revision of Metals Criteria-Interim Final Rule (60 FR 22229, May 4, 1995)
§ 93.8c. Human health and aquatic life criteria for toxic substances.
(a) Table 5 and Chapter 16, Appendix A, Table 1A (relating to site-specific water quality criteria for toxic substances) list the aquatic life and human health criteria for toxic substances which the Department uses in development of effluent limitations in NPDES Permits and for other purposes. The human health criteria, which include probable modes of exposure (such as, but not limited to ingestion from drinking water and fish consumption, inhalation and dermal absorption), are further defined as to the specific effect (that is, cancer or threshold health effects). For those aquatic life criteria which are hardness related and specified as a formula, such as several of the heavy metals, the Department will use the specific hardness of the receiving stream after mixing with the waste discharge in calculating criteria on a case-by-case basis. The priority pollutant numbers (PP NO) used by the EPA to identify priority pollutants are included in Table 5 for reference purposes. The toxics without a PP NO are nonpriority pollutants or State-derived criteria.
(b) Some of these criteria may be superseded for the Delaware Estuary, Ohio River Basin, Lake Erie Basin, and Genesee River Basin under interstate and international compact agreements with the Delaware River Basin Commission, Ohio River Valley Sanitation Commission and International Joint Commission, respectively. The criteria in Table 5 do not apply to the Great Lakes System. Water quality criteria for the Great Lakes System are contained in § 93.8e (relating to special criteria for the Great Lakes System) and Table 6 (relating to Great Lakes Aquatic Life and Human Health Criteria). Criteria may be developed for the Great Lakes System for substances other than those listed in § 93.8e under the methodologies in § 16.61 (relating to special provisions for the Great Lakes system).
TABLE 5
WATER QUALITY CRITERIA FOR TOXIC SUBSTANCES
Fish and Aquatic Life Criteria Human PP NO Chemical Name CAS Number Criteria Continuous
Concentrations (ug/L)Criteria Maximum
Concentration (ug/L)Health Criteria (ug/L) 1M ANTIMONY 07440360 220 1100 5.6 H 2M ARSENIC 07440382 150 (As3+) 340 (As3+) 10 H 3M BERYLLIUM 07440417 N/A N/A N/A - 4M CADMIUM 07440439 *{1.101672-(ln[H]×0.041838)}× *{1.136672-(ln[H]×0.041838)}× N/A Exp(0.7409×ln[H]-4.719) Exp(1.0166×ln[H]-3.924) - (ex: @H=100, CCC=0.25) (ex: @H=100, CMC=2.0) 5M CHROMIUM III 16065831 *0.860×Exp(0.819×ln[H]+0.6848) *0.316Exp(0.819×ln[H]+3.7256) N/A - (ex: @H=100, CCC=74) (ex: @H=100, CMC=570) 5M CHROMIUM VI 18540299 *10 *16 N/A - 6M COPPER 07440508 *0.960×Exp(0.8545×ln[H]-1.702) *0.960×Exp(0.9422×ln[H]-1.700) N/A - (ex: @H=100, CCC=9.0) (ex: @H=100, CMC=13) 7M LEAD 07439921 *{1.46203-(ln[H]×0.145712)}× *{1.46203-(ln[H]×0.145712)}× N/A - Exp(1.273×ln[H]-4.705) Exp(1.273×ln[H]-1.460) (ex: @H=100, CCC=2.5) (ex: @H=100, CMC=65) 8M MERCURY 07439976 *0.77 (Hg2+) *1.4 (Hg2+) 0.05 H 9M NICKEL 07440020 *0.997×Exp(0.846×ln[H]+0.0584) *0.998×Exp(0.846×ln[H]+2.255) 610 H (ex: @H=100, CCC=52) (ex: @H=100, CMC=470) 10M SELENIUM 07782492 *4.6 N/A N/A - 11M SILVER 07440224 N/A *0.850×Exp(1.72×ln[H]-6.590) N/A - (ex: @H=100, CMC=3.2) 12M THALLIUM 07440280 13 65 0.24 H 13M ZINC 07440666 *0.986×Exp(0.8473×ln[H]+0.884) *0.978×Exp(0.8473×ln[H]+0.884) N/A - (ex: @H=100, CCC=120) (ex: @H=100, CMC=120) 14M CYANIDE, FREE 00057125 5.2 22 140 H 1A 2-CHLOROPHENOL 00095578 110 560 81 H 2A 2,4-DICHLORO-PHENOL 00120832 340 1700 77 H 3A 2,4-DIMETHYL-PHENOL 00105679 130 660 380 H 4A 4,6-DINITRO-o-CRESOL 00534521 16 80 13 H 5A 2,4-DINITRO-PHENOL 00051285 130 660 69 H 6A 2-NITROPHENOL 00088755 1600 8000 N/A - 7A 4-NITROPHENOL 00100027 470 2300 N/A - 8A P-CHLORO-m-CRESOL 00059507 30 160 N/A - 9A PENTACHLORO-PHENOL 00087865 Exp(1.005×[pH]-5.134) Exp(1.005×[pH]-4.869) 0.27 CRL @pH= 6.5 7.8 9.0 @pH= 6.5 7.8 9.0 Crit= 4.1 15 50 Crit= 5.3 19 65 10A PHENOL 00108952 N/A N/A 21000 H 11A 2,4,6-TRICHLOROPHENOL 00088062 91 460 1.4 CRL 1V ACROLEIN 00107028 1 5 190 H 2V ACRYLONITRILE 00107131 130 650 0.051 CRL 3V BENZENE 00071432 130 640 1.2 CRL 5V BROMOFORM 00075252 370 1800 4.3 CRL 6V CARBON TETRACHLORIDE 00056235 560 2800 0.23 CRL 7V CHLORO-BENZENE 00108907 240 1200 130 H 8V CHLORODIBRO- MO-METHANE 00124481 N/A N/A 0.40 CRL 9V CHLOROETHANE 00075003 N/A N/A N/A - 10V 2-CHLOROETHYL VINYL ETHER 00110758 3500 18000 N/A - 11V CHLOROFORM 00067663 390 1900 5.7 CRL 12V DICHLOROBROMO- METHANE 00075274 N/A N/A 0.55 CRL 14V 1,1-DICHLORO-ETHANE 00075343 N/A N/A N/A - 15V 1,2-DICHLORO-ETHANE 00107062 3100 15000 0.38 CRL 16V 1,1-DICHLORO-ETHYLENE 00075354 1500 7500 33.0 H 17V 1,2-DICHLORO-PROPANE 00078875 2200 11000 N/A - 18V 1,3-DICHLORO-PROPYLENE 00542756 61 310 0.34 CRL 19V ETHYLBENZENE 00100414 580 2900 530 H 20V METHYL BROMIDE 00074839 110 550 47 H 21V METHYL CHLORIDE 0074873 5500 28000 N/A - 22V METHYLENE CHLORIDE 00075092 2400 12000 4.6 CRL 23V 1,1,2,2-TETRA- CHLOROETHANE 00079345 210 1000 0.17 CRL 24V TETRACHLORO-ETHYLENE 00127184 140 700 0.69 CRL 25V TOLUENE 00108883 330 1700 1300 H 26V 1,2-trans-DICHLORO- ETHYLENE 00156605 1400 6800 140 H 27V 1,1,1-TRICHLORO-ETHANE 00071556 610 3000 N/A - 28V 1,1,2-TRICHLORO-ETHANE 00079005 680 3400 0.59 CRL 29V TRICHLORO-ETHYLENE 00079016 450 2300 2.5 CRL 31V VINYL CHLORIDE 00075014 N/A N/A 0.025 CRL 1B ACENAPHTHENE 00083329 17 83 670 H 2B ACENAPHTHYLENE 00208968 N/A N/A N/A - 3B ANTHRACENE 00120127 N/A N/A 8300 H 4B BENZIDINE 00092875 59 300 0.000086 CRL 5B BENZO(a)-ANTHRACENE 00056553 0.1 0.5 0.0038 CRL 6B BENZO(a)PYRENE 00050328 N/A N/A 0.0038 CRL 7B 3,4-BENZO-FLUORANTHENE 00205992 N/A N/A 0.0038 CRL 8B BENZO(ghi)-PERYLENE 00191242 N/A N/A N/A - 9B BENZO(k)-FLUORANTHENE 00207089 N/A N/A 0.0038 CRL 10B BIS(2-CHLORO- ETHOXY)METHANE 00111911 N/A N/A N/A - 11B BIS(2-CHLORO- ETHYL)ETHER 00111444 6000 30000 0.030 CRL 12B BIS(2-CHLORO- ISOPROPYL)ETHER 00108601 N/A N/A 1400 H 13B BIS(2-ETHYL- HEXYL)PHTHALATE 00117817 910 4500 1.2 CRL 14B 4-BROMOPHENYL PHENYL ETHER 00101553 54 270 N/A - 15B BUTYLBENZYL PHTHALATE 00085687 35 140 150 H 16B 2-CHLORO-NAPHTHALENE 00091587 N/A N/A 1000 H 17B 4-CHLORO-PHENYL PHENYL ETHER 07005723 N/A N/A N/A - 18B CHRYSENE 00218019 N/A N/A 0.0038 CRL 19B DIBENZO(a,h)-ANTHRACENE 00053703 N/A N/A 0.0038 CRL 20B 1,2-DICHLORO-BENZENE 00095501 160 820 420 for dichloro- benzene H 21B 1,3-DICHLORO-BENZENE 00541731 69 350 See 20B H 22B 1,4-DICHLORO-BENZENE 00106467 150 730 See 20B H 23B 3,3-DICHLORO-BENZIDINE 00091941 N/A N/A 0.021 CRL 24B DIETHYL PHTHALATE 00084662 800 4000 17000 H 25B DIMETHYL PHTHALATE 00131113 500 2500 270000 H 26B DI-N-BUTYL PHTHALATE 00084742 21 110 2000 H 27B 2,4-DINITRO-TOLUENE 00121142 320 1600 0.05 for dinitro- toluene CRL 28B 2,6-DINITRO-TOLUENE 00606202 200 990 See 27B CRL 29B DI-N-OCTYL PHTHALATE 00117840 N/A N/A N/A - 30B 1,2-DIPHENYL-HYDRAZINE 00122667 3 15 0.036 CRL 31B FLUORANTHENE 00206440 40 200 130 H 32B FLUORENE 00086737 N/A N/A 1100 H 33B HEXACHLORO-BENZENE 00118741 N/A N/A 0.00028 CRL 34B HEXACHLORO-BUTADIENE 00087683 2 10 0.44 CRL 35B HEXACHLORO- CYCLOPENTADIENE 00077474 1 5 40 H 36B HEXACHLORO-ETHANE 00067721 12 60 1.4 CRL 37B INDENO(1,2,3-cd)PYRENE 00193395 N/A N/A 0.0038 CRL 38B ISOPHORONE 00078591 2100 10000 35 H 39B NAPHTHALENE 00091203 43 140 N/A - 40B NITROBENZENE 00098953 810 4000 17 H 41B N-NITROSO- DIMETHYLAMINE 00062759 3400 17000 0.00069 CRL 42B N-NITROSODI-N- PROPYLAMINE 00621647 N/A N/A 0.005 CRL 43B N-NITROSO- DIPHENYLAMINE 00086306 59 300 3.3 CRL 44B PHENANTHRENE 00085018 1 5 N/A - 45B PYRENE 00129000 N/A N/A 830 H 46B 1,2,4-TRICHLORO-BENZENE 00120821 26 130 35 H 1P ALDRIN 00309002 0.1 3 0.000049 CRL 2P alpha-BHC 00319846 N/A N/A 0.0026 CRL 3P beta-BHC 00319857 N/A N/A 0.0091 CRL 4P gamma-BHC (LINDANE) 00058899 N/A 0.95 0.098 H 5P delta-BHC 00319868 N/A N/A N/A - 6P CHLORDANE 00057749 0.0043 2.4 0.00080 CRL 7P 4,4-DDT 00050293 0.001 1.1 0.00022 CRL 8P 4,4-DDE 00072559 0.001 1.1 0.00022 CRL 9P 4,4-DDD 00072548 0.001 1.1 0.00031 CRL 10P DIELDRIN 00060571 0.056 0.24 0.000052 CRL 11P alpha-ENDOSUL-FAN 00959988 0.056 0.22 62 for endosulfan H 12P beta-ENDOSULFAN 33213659 0.056 0.22 See 11P H 13P ENDOSULFAN SULFATE 01031078 N/A N/A N/A - 14P ENDRIN 00072208 0.036 0.086 0.059 H 15P ENDRIN ALDEHYDE 07421934 N/A N/A 0.29 H 16P HEPTACHLOR 00076448 0.0038 0.52 0.000079 CRL 17P HEPTACHLOR EPOXIDE 01024573 0.0038 0.5 0.000039 CRL 18P PCB 0.014 N/A 0.000064 for PCBs CRL 25P TOXAPHENE 08001352 0.0002 0.73 0.00028 CRL PP 2,3,7,8-TCDD 01746016 N/A N/A 5.0 E-9 CRL -- ACETONE 00067641 86000 450000 3500 H -- ALUMINUM 07429905 N/A 750 N/A - -- BARIUM 07440393 4100 21000 2400 H -- BORON 07440428 1600 8100 3100 H -- COBALT 07440484 19 95 N/A - -- p-CRESOL 00106445 160 800 N/A - -- DIAZINON 333415 0.17 0.17 N/A - -- FORMALDEHYDE 00050000 440 2200 700 H -- 2-HEXANONE 00591786 4300 21000 N/A - -- LITHIUM 07439932 N/A N/A N/A - -- METHYLETHYL KETONE 00078933 32000 230000 21000 H -- METHYLISO-BUTYL KETONE 00108101 5000 26000 N/A - -- METOLACHLOR 51218452 NA NA 69 H -- I-PROPANOL 00071238 46000 230000 N/A - -- 2-PROPANOL 00067630 89000 440000 N/A - -- 1,2,3-TRICHLORO-PROPANE 00096184 N/A N/A 210 H -- VANADIUM 07440622 100 510 N/A - -- XYLENE 01330207 210 1100 70000 H
Acronyms and Footnotes to Table 5 * Indicates dissolved metal criterion; others are total recoverable metals. Each listed dissolved criterion in Table 5 is equal to the corresponding total recoverable criterion before rounding (from the EPA National Ambient Water Quality Criteria Documents) multiplied by the conversion factor (from the Conversion Factors Table); a criterion that is expressed as a hardness (H)-based equation is shown in Table 5 as the conversion factor (listed) multiplied by the hardness criterion equation; an example criterion at hardness=100mg/L is included.
CAS--Chemical Abstract Service number
CRL--Cancer risk level at 1 × 10-6
H--Threshold effect human health criterion; incorporates additional uncertainty factor for some Group C carcinogens.
ln [H]--Natural Logarithm of the Hardness of stream as mg/l CaCO3
ug/L--Micrograms per liter
N/A--Criterion not developed
PP NO--Priority Pollutant Number
§ 93.8d. Development of site-specific water quality criteria.
(a) The Department will consider a request for site-specific criteria when one or more of the following apply:
(1) There exist site-specific biological or chemical conditions of receiving waters which differ from conditions upon which the water quality criteria were based.
(2) More stringent criteria are needed for a parameter listed in § 93.7 (relating to specific water quality criteria) to protect more sensitive, intervening uses.
(3) There exists a need for a site-specific criterion for a substance not listed in § 93.8c, Table 5 (relating to water quality criteria for toxic substances).
(b) The request for site-specific criteria must include the results of scientific studies for the purpose of:
(1) Defining the areal boundaries for application of the site-specific criteria which will include the potentially affected wastewater dischargers identified by the Department, through various means, including, but not limited to, the total maximum daily load (TMDL) process described in Chapter 96 (relating to water quality standards implementation) or biological assessments.
(2) Developing site-specific criteria which protect the surface water's existing and designated uses.
(c) Scientific studies shall be performed in accordance with the procedures and guidance in the Water Quality Standards Handbook (EPA 1994), as amended and updated, including: ''Guidance on the Determination and Use of Water-Effect Ratios for Metals'' (February 1994); and the ''Methodology for Deriving Ambient Water Quality Criteria for the Protection of Human Health'' (2000). Other guidance approved by the Department, which is based on other EPA-approved or scientifically defensible methodologies, may be used.
(d) Prior to conducting studies specified in subsections (b) and (c), a proposed plan of study shall be submitted to the Department for review, consideration and approval.
(e) Signed copies of all reports including toxicity test data shall be submitted to the Department within 60 days of completion of the tests.
(f) If the Department determines that site-specific criteria are appropriate in accordance with subsection (a), the Department will do the following:
(1) Publish the site-specific criterion in the Pennsylvania Bulletin, along with other special conditions under § 92.61(a)(5) (relating to public notice of permit application; and public hearing) and provide for public participation and public hearing in accordance with § 92.61 and §§ 92.63 and 92.65 (relating to public access to information; and notice to other government agencies).
(2) Maintain publicly available lists of site-specific criteria.
(3) Submit the methodologies used for site-specific criteria development to the EPA's Regional Administrator for review and approval, within 30 days of Department's final action.
(4) Prepare a recommendation to the EQB in the form of proposed rulemaking, incorporating that criterion for the water body segment.
(g) If the Department determines that new Statewide criteria or modifications to Statewide criteria are appropriate, the Department will prepare a recommendation to the EQB in the form of proposed rulemaking, incorporating the criteria into this chapter. The new criteria and changes to the criteria will become effective following adoption by the EQB as final rulemaking and publication in the Pennsylvania Bulletin.
(h) A person challenging a Department action under this section shall have the burden of proof to demonstrate that the Department's action does not meet the requirements of this section.
§ 93.8e. Special criteria for the Great Lakes System.
(a) Special criteria. The special provisions in this section apply for the Great Lakes System, which includes the streams, rivers, lakes and other bodies of surface water within the drainage basin of the Great Lakes in this Commonwealth.
(b) Water quality criteria for the Great Lakes System. Human health and aquatic life criteria for the Great Lakes System are contained in Table 6 (relating to Great Lakes aquatic life and human health criteria). For any pollutant not listed in the table, criteria to protect existing and designated uses will be developed by the Department, as needed in accordance with this chapter and § 16.61 (relating to special provisions for the Great Lakes System).
TABLE 6
GREAT LAKES AQUATIC LIFE AND HUMAN HEALTH CRITERIA
Fish and Aquatic Life Criteria Human PP NO Chemical Name CAS Number Criteria Continuous
Concentrations (ug/L)Criteria Maximum
Concentration (ug/L)Health Criteria (ug/L) 2M Arsenic 07440382 *148 (As3+) *340 (As3+) N/A - 4M Cadmium 07440439 *{1.101672-(ln[H]×0.041838)}× Exp(0.7852×ln[H]-2.715)
(ex: @H=100, CCC=2.24)*{1.136672-(ln[H]×0.041838)}× Exp(1.128×ln[H]-3.6867)
(ex: @H=100, CMC=4.26)N/A - 5M Chromium, III 16065831 *0.860×Exp(0.819×ln[H]+0.6848) *0.316×Exp(0.819×ln[H]+3.7256) N/A - (ex: @H=100, CCC=74) (ex: @H=100, CMC=570) 5M Chromium, VI 18540299 *10.56 *15.73 N/A - 6M Copper 07440508 *0.960×Exp(0.8545×ln[H]-1.702) *(0.960×Exp(0.9422×ln[H]-1.700) N/A (ex: @H=100, CCC=8.96) (ex: @H=100, CMC=13.44) 8M Mercury 07439976 *0.77 *1.44 0.0031 H 9M Nickel 07440020 *0.997×Exp(0.846×ln[H]+0.0584 *[0.998×Exp(0.846×ln[H]+2.255) N/A H (ex: @H=100, CCC=52.01) (ex: @H=100, CMC=468.24) 10M Selenium 07782492 *4.61 N/A N/A - 13M Zinc 07440666 *0.986×Exp(0.8473×ln[H]+0.884) *0.978×Exp(0.8473×ln[H]+0.884) N/A (ex: @H=100, CCC=118.14) (ex: @H=100, CMC=117.18) 14M Cyanide, Free 00057125 5.2 22 600 H 3A 2,4-Dimethyl-phenol 00105679 N/A N/A 450 H 5A 2,4-Dinitro-phenol 00051285 N/A N/A 55 H 9A Pentachlorophenol 00087865 Exp(1.005[pH]-5.134) Exp (1.005[pH]-4.869) N/A - @pH= 6.5 7.8 9.0 @pH = 6.5 7.8 9.0 Crit = 4.05 14.95 49.95 Crit = 5.28 19.49 65.10 3V Benzene 00071432 N/A N/A 1.2 CRL 7V Chloro-benzene 00108907 N/A N/A 470 H 22V Methylene Chloride 00075092 N/A N/A 4.7 CRL 25V Toluene 00108883 N/A N/A 5600 H 29V Trichloro-ethylene 00079016 N/A N/A 2.9 CRL 33B Hexachloro-benzene 00118741 N/A N/A 0.000045 CRL 36B Hexachloro-ethane 00067721 N/A N/A 0.53 CRL 4P gamma-BHC (Lindane) 00058899 N/A 0.95 0.47 H 6P Chlordane 00057749 N/A N/A 0.000025 CRL 7P 4,4-DDT 00050293 N/A N/A 0.000015 CRL 10P Dieldrin 00060571 0.056 0.24 0.00000065 CRL 14P Endrin 00072208 0.036 0.086 N/A - 18P PCBs N/A N/A 0.00000039 CRL 25P Toxaphene 08001352 N/A N/A 0.0000068 CRL PP 2,3,7,8-TCDD 01746016 N/A N/A 8.6 E-10 CRL -- Parathion 00056382 0.013 0.065 N/A -
Acronyms and Footnotes to Table 6 * Indicates dissolved metal criterion; others are total recoverable metals. Each listed dissolved criterion in Table 6 is equal to the corresponding total recoverable criterion before rounding (from the EPA National Ambient Water Quality Criteria Documents) multiplied by the conversion factor (from the Conversion Factors Table); a criterion that is expressed as a hardness (H)-based equation is shown in Table 6 as the conversion factor (listed) multiplied by the hardness criterion equation; an example criterion at hardness=100mg/L is included.
CAS--Chemical Abstract Service number
CRL--Cancer risk level at 1 x 10-6
H--Threshold effect human health criterion; incorporates additional uncertainty factor for some Group C carcinogens.
ln [H]--Natural Logarithm of the Hardness of stream as mg/l CaCO3
ug/L--Micrograms per liter
N/A--Criterion not developed
PP NO--Priority Pollutant Number
(c) Wildlife criteria. Wildlife criteria will be developed for the bioaccumulative chemicals of concern (BCCs) in the Great Lakes System using methodologies contained in the Great Lakes guidance in 40 CFR Part 132, Appendix D (relating to Great Lakes Water Quality Initiative methodology for the development of wildlife criteria). The wildlife criteria are contained in the following table:
GREAT LAKES WILDLIFE CRITERIA
TABLE 7
PP Chemical Criterion NO Name (ug/L) 7-9P DDT & METABOLITES 0.000011 8M MERCURY 0.0013 18-24P PCBs (TOTAL) 0.00012 PP 2,3,7,8-TCDD 3.1 E-9
DESIGNATED WATER USES AND WATER QUALITY CRITERIA § 93.9. Designated water uses and water quality criteria.
(a) The tables in §§ 93.9a--93.9z display designated water uses and water quality criteria in addition to the water uses and criteria specified in Tables 2 and 3. Designated uses shall be protected in accordance with Chapters 95 and 96 (relating to wastewater treatment requirements; and water quality standards implementation) and any other applicable State and Federal laws and regulations. The tables also indicate specific exceptions to Tables 2 and 3 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. The county column in §§ 93.9a--93.9z indicates the county in which the mouth of the stream or the downstream limit of the zone described for that entry is located. Abbreviations used in the Stream and the ''Zone'' columns are as follows:
* * * * * (b) When appropriate, ''Exceptions to Specific Criteria'' provide reference to the Delaware River Basin Commission (DRBC) water quality regulations, Orsanco (Ohio River Valley Water Sanitation Commission) pollution control standards and the Great Lakes Water Quality Agreement (GLWQA) which specify the criteria that apply if a water quality standard is more stringent than those in this title. The applicable criteria can be obtained from the following:
* * * * * (Editor's note: A basin-wide migratory fishes (MF) designation is being applied to Drainage Lists A--O and Z, unless there are specific exceptions already noted for certain waterbodies or stream segments within one of these drainage lists. These specific changes to the drainage lists, however, are not reflected in this Annex, but will be added to the regulations upon codification in Chapter 93. Drainage lists A--G are located within the Delaware River Basin. Drainage lists H--O are located within the Susquehanna River Basin. Drainage list Z is located within the Potomac River Basin.)
* * * * * § 93.9d. Drainage List D.
Delaware River Basin in Pennsylvania
Lehigh River
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria* * * * * 3--Penn Springs Basin Carbon HQ-CWF, MF None 3--Black Creek 4--Hazle Creek Basin Carbon HQ-CWF, MF None 4--Beaver Creek Basin Carbon CWF, MF None 3--Black Creek Main Stem, Confluence of Hazle Creek and Beaver Creek to Mouth Carbon CWF, MF None 4--UNTs to Black Creek Basins, Confluence of Hazle Creek and Beaver Creek to Mouth Carbon HQ-CWF, MF None 4--Koons Creek Basin Carbon HQ-CWF, MF None 4--Quakake Creek Basin, Source to Wetzel Creek Carbon HQ-CWF, MF None 5--Wetzel Creek Basin Carbon CWF, MF None 4--Quakake Creek Basin, Wetzel Creek to Mouth Carbon CWF, MF None 4--Brushy Hollow Run Basin Carbon HQ-CWF, MF None 3--Maple Hollow Basin Carbon HQ-CWF, MF None * * * * *
§ 93.9f. Drainage List F.
Delaware River Basin in Pennsylvania
Schuylkill River
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria* * * * * 3--Monocacy Creek Basin Berks WWF, MF None 3--UNTs to Schuylkill River Basins, (all UNT's along Montgomery County shore), Berks-Chester-Montgomery County Border to Valley Creek Montgomery WWF, MF None 3--UNTs to Schuylkill River Basins (all UNTs along Chester County shore except those in Spring City and Phoenixville), Berks-Chester-Montgomery County Border to Valley Creek Chester HQ-TSF, MF None 3--UNTs to Schuylkill River Basins, in Spring City and Phoenixville Chester WWF, MF None * * * * *
3--Valley Creek Basin Montgomery- Chester EV, MF None 3--UNTs to Schuylkill River Basins, Valley Creek to Head of Tide Philadelphia WWF, MF None 3--Trout Creek Basin Montgomery WWF, MF None * * * * *
§ 93.9i. Drainage List I.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria* * * * * 2--Mehoopany Creek Basin, Source to North Branch Mehoopany Creek Wyoming HQ-CWF, MF None 3--North Branch Mehoopany Creek Basin Wyoming CWF, MF None 2--Mehoopany Creek Basin, North Branch Mehoopany Creek to Mouth Wyoming CWF, MF None 2--Taques Creek Basin Wyoming CWF, MF None 2--Tunkhannock Creek Main Stem, Source to Susquehanna-Wyoming County Border Susquehanna- Wyoming CWF, MF None 3--UNTs to Tunkhannock Creek Basins, Source to Susquehanna-Wyoming County Border Susquehanna CWF, MF None 3--Bear Swamp Creek Basin Susquehanna CWF, MF None 3--Bell Creek Basin Susquehanna CWF, MF None 3--Nine Partners Creek Basin Susquehanna CWF, MF None 3--Partners Creek Basin Susquehanna CWF, MF None * * * * *
§ 93.9l. Drainage List L.
Susquehanna River Basin in Pennsylvania
West Branch Susquehanna River
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria* * * * * 4--UNT 21134 Basin, Source to Rauchtown Creek Lycoming CWF, MF None 5--Rauchtown Creek 6--Rockey Run Basin Clinton HQ-CWF, MF None 6--Gottshall Run Basin Clinton HQ-CWF, MF None 5--Rauchtown Creek Basin, Confluence of Rockey Run and Gottshall Run to Mouth Lycoming CWF, MF None * * * * *
§ 93.9m. Drainage List M.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria* * * * * 3--Trout Run Basin Northumberland CWF, MF None 3--Bennys Run Basin Northumberland CWF, MF None 3--Millers Run Basin Northumberland CWF, MF None * * * * *
§ 93.9q. Drainage List Q.
Ohio River Basin in Pennsylvania
Allegheny River
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria* * * * * 4--Marsh Run Basin Crawford CWF None 4--Thompson Creek Basin, Source to Shirley Run Crawford CWF None 5--Shirley Run Basin Crawford HQ-CWF None 4--Thompson Creek Basin, Shirley Run to Mouth Crawford CWF None * * * * *
5--Caldwell Creek Basin, Source to West Branch Caldwell Creek Warren HQ-CWF None 6--West Branch Caldwell Creek Basin Warren EV None 5--Caldwell Creek Basin, West Branch Caldwell Creek to Mouth Crawford EV None § 93.9v. Drainage List V.
Ohio River Basin in Pennsylvania
Monongahela River
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria* * * * * 3--Bates Run Basin Fayette WWF None 3--Tenmile Creek Basin, Source to South Fork Tenmile Creek Greene- Washington TSF None 4--South Fork Tenmile Creek Basin, Source to Browns Creek Greene HQ-WWF None 5--Browns Creek Basin Greene HQ-WWF None 4--South Fork Tenmile Creek Basin, Browns Creek to Mouth Greene- Washington WWF None 3--Tenmile Creek Basin, South Fork Tenmile Creek to Mouth Greene- Washington- Fayette WWF None * * * * *
§ 93.9x. Drainage List X.
Lake Erie
Stream Zone County Water
Uses
ProtectedExceptions
To
Specific
Criteria1--Lake Erie All sections of lake in PA except Outer Erie Harbor and Presque Isle Bay Erie CWF Delete Fe, DO1 and Bac1
See GLWQA
Add E. coli per 40 CFR 131.41 (Except (f)) and See 28 Pa. Code § 18.28(b)(2) and (3)1--Lake Erie (Outer Erie Harbor and Presque Isle Bay) Portion of lake bordered by Presque Isle on west, longitude 80° 10` 18" on north, except harbor area and central channel dredged and maintained by United States Army Corps of Engineers. Erie WWF Delete pH
Add pH between
7 and 9
Add E. coli per 40 CFR 131.41 (Except (f)) and See 28 Pa. Code § 18.28(b)(2) and (3)1--Lake Erie (Outer Erie Harbor and Presque Isle Bay) Harbor area and central channel dredged and maintained by United States Army Corps of Engineers Erie WWF, Delete WC Delete pH and Bac1
Add pH between 7 and 9, Bac2* * * * *
[Pa.B. Doc. No. 09-916. Filed for public inspection May 15, 2009, 9:00 a.m.]
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