[40 Pa.B. 4835]
[Saturday, August 21, 2010]
[Continued from previous Web Page] § 95.10(d)—Variance Provision
Variances to this standard can be approved by the Department provided that the applicant can demonstrate the need for a variance. The demonstration shall be based on the character of the wastewater, the availability of treatment technologies and the costs associated with meeting the standard. These variances are not without limitations. The Department will develop guidance materials to assist applicants in the completion of requests for variances prior to the effective date of this regulation.
§ 95.10(e)—Variance Request Subject to Public Notice
This provision establishes that a request for a variance submitted to the Department in accordance with § 95.10(c) will be required to comply with the public notice provisions applicable to NPDES permit applications in § 92.61 (relating to public notice of permit application and public hearing). The basic contents for the variance request are stated in § 95.10(d) and the Department will develop forms to be used when submitting a variance request. However, given that a variance will generally be included as part of an NPDES permit, this section makes clear that the variance request shall comply with public notice procedures used for NPDES permit applications.
§ 95.10(f)—Department Approval of Variances
Under the rule, an upper bound that limits the degree a discharge can vary from the standard will be established based on water quality considerations. This upper bound is set to assure that at the point of discharge existing uses are maintained and water quality standards, both numeric and narrative, are not compromised.
In addition, a watershed analysis must assure that the cumulative TDS load from all sources at the next downstream PWS intake does not exceed 75% of the water quality-based assimilative capacity at design stream flow conditions, as required in § 96.3, that is, Q7-10. The Department will closely monitor TDS levels and take steps necessary to limit increased or future discharges and prevent water quality criteria violations. When the remaining assimilative capacity of a receiving stream falls below 25%, based on analysis at design stream flow conditions, the Department will develop a wasteload allocation for discharges of TDS that contribute to the specific water quality standards compliance point. For this evaluation, a watershed will consist of that area that drains to a PWS, which also is the water quality standards compliance point.
§ 95.10(g)—Compliance Date for Coal-Fired Electric Steam Generating Units
Coal-fired electric steam generating units have expressed concern over the timing of compliance with the requirements in this regulation and difficulties in planning, designing and constructing the necessary treatment equipment on account of an overlap with new air pollution control requirements, and the pending issuance of an ELG for TDS for this industrial category (that is, subject to 40 CFR Part 423 (relating to steam electric power generating point source category)). Two new EPA regulations—the Clean Air Interstate Rule (CAIR), see 70 FR 25162 (May 12, 2005), and the Clean Air Mercury Rule (CAMR), see 70 FR 28606 (May 18, 2005)—will require these facilities to install scrubbers or other air pollution control equipment which will ultimately generate wastewater with high TDS loadings. These regulations have not yet been finalized. The EPA is also currently developing an ELG for TDS for this industrial subcategory which is scheduled for completion by March 2014 (Docket No. EPA-HQ-OW-2009-0819). The industry has provided estimates of the time needed (approximately 3 years) to plan, design and construct treatment facilities for wastewater from the new air pollution control equipment installed to meet the CAIR.
The overlap of the wastewater treatment requirements in this regulation with the air pollution control requirements in the CAIR and the CAMR and the development of an ELG for TDS by the EPA scheduled for issuance in March 2014, necessitates establishment of a later compliance date for these industrial facilities. This section provides that coal-fired electric steam generating units will have additional time to come into compliance with the wastewater treatment requirements in § 95.10(c). These facilities shall comply with the requirements in § 95.10(c) by December 31, 2018. This section also recognizes that discharges from these facilities may still qualify for exemptions established by § 95.10(a), such as those in subsection (a)(1) for existing mass loadings of TDS authorized prior to the effective date of this regulation or for new and expanding loadings less than 5,000 lbs/day as an annual average daily load in subsection (a)(7). Finally, if an applicable effluent limit guideline is established by the EPA for this industrial subcategory, as is currently expected in March 2014, discharges from these facilities may qualify for the exemption in subsection (a)(8).
F. Summary of Comments and Responses on the Proposed Rulemaking
The Board approved publication of the proposed rulemaking at its meeting on August 18, 2009. The proposed rulemaking was published at 39 Pa.B. 6467 with a 90-day comment period. Due to a publishing error in the proposed rulemaking that listed an incorrect e-mail address for the Board, a correction to the proposed rulemaking was published at 39 Pa.B. 654. The Board advertised that the comment period for the proposed rulemaking was extended by 7 days. The public comment period officially closed on February 12, 2010. In addition, four public hearings were held as follows: December 14, 2009, in Cranberry Township, Butler County; December 15, 2009, in Ebensburg, Cambria County; December 16, 2009, in Williamsport, Lycoming County; and December 18, 2009, in Allentown, Lehigh County.
During the comment period, the Allegheny Conference, the PCA, the MSC and the Chamber submitted comments that questioned the need for the regulation based on their review of watershed data. The Board's response to these comments follows. Responses are also in the Background section of this preamble.
Allegheny Conference
The Allegheny Conference provided two major comments:
• There was an absence of scientific data to support the regulation.
• There was the potential for the proposed rule to seriously damage the economy of southwestern Pennsylvania and this Commonwealth.
The final-form rulemaking has been amended to address many of the issues identified in regard to economic effects by clarifying the misunderstanding of many industries as to how this rule would impact them, especially in the Monongahela River watershed. In the Monongahela, TDS levels have already exceeded water quality criteria. This means that allocations of TDS loads must be made for all dischargers in the watershed to bring the river back to compliance. The Department will be listing the Monongahela as impaired on its upcoming impaired waters list as required by the Clean Water Act (33 U.S.C.A. §§ 1251—1376).
In other watersheds, the Board recognizes that high-TDS wastewaters from different industries present different treatment challenges. Not all industrial wastewaters containing TDS are consistent. Based on the need for regulation of a rapidly expanding industry which generates wastewaters with extraordinarily high levels of TDS and chlorides, the readily available proven treatment technologies for this wastewater, the low costs associated with treatment and the overwhelming public comment in favor of a standard for this industry, the proposed rulemaking refined its original focus on treatment for oil and gas wastewaters. The final-form rulemaking now contains more specific treatment requirements for wastewater generated from all natural gas drilling activities and provides exemptions and an option variance provision for non-natural gas industries designed in part to address economic issues identified.
With regard to their comment on the lack of scientific data to support the regulation, the Allegheny Conference unfortunately discounted important evidence. Their analysis used a simple frequency analysis, but the Department's WQN data set contains an adequate number of independent observations that allow more powerful statistical distribution tests, as outlined in the 2009 Assessment and Listing Methodology (http://www.portal. state.pa.us/portal/server.pt/community/water_quality_ standards/10556/2009_assessment_methodology/666876). The Department's analyses of watersheds across this Commonwealth were conducted using these more rigorous methods. When the Department's analyses of WQN data showed the potential for water quality criteria violations, detailed studies were conducted in those watersheds.
First, conductivity is highly correlated with TDS and conductivity can be monitored continuously using probes. Although discrete TDS samples at the WQN sites in the Monongahela River may not fully elucidate the problem of increasing TDS, the continuous monitoring of conductivity is convincing. This increase in conductivity prompted the Department to conduct chemical grab sampling in various pools in the Monongahela in 2008 and 2009. Careful analysis of these samples, taking into consideration both the frequency and duration components of water quality criteria, showed they exceeded the 500 mg/L PWS TDS criteria in pools with drinking water intakes.
The Allegheny Conference comments that ''The spikes recorded in 2007-2009, after a decade of readings below 500 parts per million, indicate a condition worth studying to understand its nature and severity, but a handful of samples is not enough to justify a new set of regulations for the entire state.'' The spikes in fact did elicit more study as the Department began systematically collecting additional grab samples in the Monongahela. The result was the discovery of a severe TDS problem in the river leading to an impairment listing. Uncovering the severity of this problem prompted the Department to recognize the need to deploy more continuous conductivity probes in other waters to learn whether the TDS problem is more widespread than just the Monongahela.
The assessment process by the Department in the Beaver River watershed is the same as that in the Monongahela. The potential for a TDS problem has been identified from WQN data, and the Department is responding by collecting grab samples and deploying conductivity probes. It takes time to collect the data, but when an adequate number of samples become available the Department will not simply rely upon a WQN frequency analysis, as suggested, but must consider the entire weight of evidence. Similar assessments of WQN data were made for the West and North Branches of the Susquehanna River, the Clarion River and Moshannon Creek, which were previously discussed.
Allegheny Conference omits any mention of the environmental disaster in Dunkard Creek that devastated 26 miles of that stream. The problem was high TDS concentrations leading to colonization and growth of golden algae, as well as osmotic pressure exceeding the regulatory numeric criterion. Dunkard Creek is a good example of what can happen if TDS is not controlled, and the loss of this important public resource was an environmental tragedy, documented by the loss of aquatic life, including endangered mussels.
Allegheny Conference's analysis of the WQN data can in no way be considered a risk assessment with any merit. Based on their simple frequency analysis the Conference suggests that the Board should delay any regulations because their analysis does not show many 500 mg/L exceedance at WQN sites. As previously documented, the WQN data can be used to calculate the background TDS concentration at each site and from that determine how much additional TDS load can be added before there is environmental harm. This is done by computing the assimilative capacity at Q7-10 design flow, and is a much more robust risk assessment.
PCA
The Board received significant comments from the PCA. In addition, the PCA participated in the TDS Stakeholders Subcommittee and provided a detailed presentation of how the PCA believed this regulation would affect their industry. Finally, the PCA also submitted comments to the Independent Regulatory Review Committee (IRRC), which were in turn submitted to the Board.
The PCA comments opposed the regulation for several reasons. First, the PCA assumed that at some point in time the Board would regulate all sources of high-TDS as new or expanding discharges, thus negating any exemptions. Second, the large volumes of mine drainage would be considered high-TDS, not because of their concentrations but because of the TDS loadings, and that all discharges from mining activities would eventually be regulated. The PCA added together the cumulative costs across the industry for treating TDS for all of its activities and discharges, including legacy operations for which their membership is currently responsible, and developed an estimate of the total industry costs to comply. Needless to say, when estimated in this manner, that cost was astronomical.
Upon Board review of the PCA comments, the IRRC comments and the PCA presentation to the TDS Stakeholders Subcommittee, it was apparent that the Board's intent to exempt existing loads of TDS from mining activities was not clearly discernable in the proposed rule as written. It was never the intention of the Board to capture these existing discharge loads of TDS from this industry in this regulation. The regulation was intended only to capture new loadings of high-TDS wastewater.
Therefore, in this final-form rulemaking the Board restructured the proposed rule to include § 95.10(a), intended to more clearly define those existing sources of TDS that are not subject to the rule. Specific concerns identified by the PCA are addressed in § 95.10(a)(1)—(6). Further details on the intent of these sections are described later in this preamble.
MSC
The Board also received comments from the MSC. In addition, the MSC and the POGAM were represented on the TDS Stakeholders Subcommittee. The new Marcellus shale play in this Commonwealth and the projected wastewater treatment and disposal needs from that new industry was the primary impetus for the Board's proposing this new rule.
In these TDS Stakeholders Subcommittee meetings, the MSC and POGAM provided data, arguments and a presentation aimed at convincing the Board that, with a drier Marcellus formation than anticipated and new recycle and reuse practices, the projected need for treatment and disposal was an order of magnitude less than original projections. These groups representing the oil and gas industry in this Commonwealth argued that there was not a need for this regulation and that real-time flow management practices, which simply allow dilution of TDS loads in streams in this Commonwealth, were adequate to manage these new loads. They also proposed that increased energy demand from the limited treatment technologies would create worse pollution effects in media other than water, for example, air.
Further, the industry argues both that technology has not been fully developed to treat these wastes, and that the ''significant'' costs associated with the technology may inhibit the development of the new Marcellus gas play in this Commonwealth. The industry disputes the Board's treatment cost estimate, provided in the preamble for the proposed rule at approximately 25¢ per gallon, saying that the actual costs will be much higher.
The MSC was opposed to the proposed regulation as unnecessary. The Department conducted a thorough review of the information and the data presented by this industry, by treatment manufacturers and vendors, from existing treatment operations in this Commonwealth and other states and from full-scale pilot treatment studies. Based on this review, the Board does not agree that real-time flow management complies with water quality standards requirements, that there is no longer a need for this regulation, that technology has yet to be developed or that its original cost estimate of approximately 25¢ per gallon is either inaccurate or prohibitive.
This final-form rulemaking includes new § 95.10(b) that is specific to the oil and gas industrial category, which continues to include effluent standards designed to drive treatment of the wastewater to be disposed by this industry. At the recommendation of the TDS Stakeholders Subcommittee, this final-form rulemaking also includes incentives for recycling and reuse of these flow back wastewaters intended to minimize the amount of wastewater to be disposed. Further discussion on real-time flow management, wastewater treatment and disposal needs, potential multimedia pollution, treatment technologies and treatment costs can be found in this preamble.
Chamber
After considerable review of the comments from the Chamber, the Board agrees that a different path forward is warranted. The Chamber accurately pointed out that the rule as proposed captures a very broad and varied spectrum of industries across this Commonwealth. As noted by the Chamber, these industries produce a wide array of different wastewaters containing TDS, and that a sector-by-sector approach to controlling TDS is likely the best option. The Department has heeded that recommendation and the final rule reflects a change in approach.
In addition, the Chamber also noted that TDS cannot simply be ignored, recognizing that if not addressed or controlled in some manner, certain watersheds could exceed water quality standards, adversely affecting drinking water supplies and aquatic life. The Chamber recommends a watershed-by-watershed approach be pursued by the Board to avoid this potential problem.
The Chamber provided comments similar to the Allegheny Conference, PCA and the MSC regarding the degree to which our watersheds are in jeopardy from TDS. In addition, the Chamber recommends a form of flow management as a potential solution for controlling TDS. Analyses by the Department, addressed in this preamble, are real, accurate and based on compliance with State and Federal standards. These analyses document that in many watersheds the assimilative capacity is much closer to being exceeded, at design stream flow conditions, than is evidenced by a simplistic plot of monthly sample results and spikes over time. Further, at the initial meeting of the TDS Stakeholders Subcommittee, the Department presented statistical and scientific reasoning rejecting flow management as an option.
In this final-form rulemaking the Board restructured the proposed rule to include § 95.10(a) intended to more clearly define those existing sources of TDS that are not subject to the rule. Specific concerns identified by the PCA are addressed in § 95.10(a)(1)—(6). In addition, the Board recognized that different industries have different wastewaters. However, as described in the discussion regarding § 95.10(c), not establishing some level of performance for addressing TDS from these industries (other than oil and gas) results in significant economic inequities between industrial sectors. The final rule proposes a Statewide standard of 2,000 mg/L for these industries, with a variance provision that is based on a watershed assimilative capacity analysis. Further details on the intent of these sections are described in this preamble.
The following is a summary of other comments received during the public comment period, organized according to subject matter.
Drilling-Related Comments
Drilling-related comments are those comments that seemed to be targeted at the natural gas industry and, in some cases, more specifically the drilling and hydraulic fracturing of gas wells. Since this final-form rulemaking is primarily to establish wastewater treatment requirements for wastewaters containing TDS, many of the comments in this category were not applicable to the rule. They are listed here to demonstrate that much of the public comment focused on regulating the natural gas industry.
Comment: The fracking industry uses poisonous cocktails of contaminants. The Commonwealth and its citizens have a right to know and the drilling companies have an obligation to tell us what they are putting into the ground when they perform hydrofrack activities regardless of whether the chemicals are corporate secrets. Our groundwater and streams need to be protected from these chemicals. Set health-based standards for all contaminants that may be found in wastewater gas drilling including arsenic, benzene, radium, magnesium, volatile organic compounds, and radioactivity. The proposed standards are not stringent enough to protect our streams and additional steps need to be taken by PA DEP now to prevent further degradation of the State's waterways and water resources.
Response: The Department knows what additives are used in the fracturing process and sampled flow back waters to determine the relative quantities of these constituents. The Department has posted a list of these chemicals on its web site at http://www.dep.state.pa.us/dep/deputate/minres/oilgas/FractListing.pdf.
Current well construction standards are designed to protect groundwater resources from any contamination that could result from drilling and fracturing wells and the Department has recently taken steps through new regulations to make those standards even more protective.
The Commonwealth currently has health-based standards in place for arsenic, benzene, radium exposure to radiation and volatile organic compounds. These standards are found in the drinking water MCLs and the water quality standards for surface waters in this Commonwealth. These standards are based on sound science and are as stringent as they need to be to protect the public health and streams in this Commonwealth.
Comment: The high pressure hydraulic fracturing technology invented by Halliburton, now located in Dubai, has been used in TX, WY, western PA, and CO with disastrous consequences. There have been fires, explosions, and other ''accidents'' in all of these other places around the country, making many farms, ranches, and homesteads uninhabitable. There should be mandated buffer zones between well site and drinking water sources, wetlands, or streams.
Response: This final-form rulemaking addresses effluent standards for the treatment of wastewaters containing TDS. This comment is not applicable to this final-form rulemaking.
Comment: Opening land to drilling has the potential to pollute surface and ground water resources. Enact a moratorium on leasing public land for gas drilling until an impact analysis can be done. Severely limit the number of wells in one area. Drilling the number of wells that they are drilling significantly dilutes the environmental quality of these pristine lands. Once damaged, it may take decades or centuries for them to return to their former state, if ever.
Response: This final-form rulemaking addresses effluent standards for the treatment of wastewaters containing TDS. This comment is not applicable to this rulemaking.
Comment: We need to make sure especially that our very best waterways, those designated as Exceptional Value or High Quality, as well as all sources of our public and private drinking water, are fully protected. Prohibit O&D drilling in EV watersheds. Testing water quality before, during, and after drilling should be mandatory, not voluntary. Require individual permits for gas development in HQ watersheds. Inspect each well during each phase—siting, drilling, casing, connecting, altering, and stimulating. Must consider cumulative impacts of drilling in watersheds.
Response: This final-form rulemaking addresses effluent standards for the treatment of wastewaters containing TDS. This comment is not applicable to this rulemaking.
Comment: Demand safe and biodegradable fracking chemicals in PA. Many people in Dimrock have already had their wells contaminated. Use the methods of the offshore oil and gas drilling in European waters where chemicals must be nontoxic in case of spills into the waters. Use less toxic ''fracing'' chemicals by implementing best practices identified by researchers at Texas A&M University's Global Petroleum Research Institute, as a start.
Response: The final-form rulemaking promotes reuse of fracturing fluids as suggested.
Comment: Require recycling and reuse of hydrofracking wastewater. Create regulations to oversee the reuse of drilling wastewater. There is little oversight over the reuse of drilling wastewater and whether in fact this is a waste disposal method as opposed to closed loop water recycling. Mandate closed-loop systems for managing wastewater, as well as steel tanks to contain the concentrated leftovers.
Response: The final-form rulemaking promotes reuse of fracturing fluids as suggested.
Comment: Require ''cradle-to-grave'' tracking of wastewater from drilling sites from generation through treatment and disposal. Do not allow the use of brine for dust control on dirt roads, since many of these roads are used for recreational purposes. No frackwater treated or untreated should go into our streams. Marcellus ''frackwater'' should not be left in lined lagoons during any stage of the process.
Response: This type of tracking is already required under Chapters 287—299, regarding residual waste. The final-form rulemaking establishes treatment standards for this wastewater that shall be met, which are protective of the uses of receiving streams, prior to discharge to surface water, as suggested.
Comment: We should be vigilant to threats to the quality of our waters. We also should learn from past mistakes: we are still paying to clean up acid mine drainage and other water pollution left as a legacy of lax regulation of the coal industry in times past. With the expansion of Marcellus gas drilling in Pennsylvania, we need to have strong protective measures in place before another disaster like the 2009 Dunkard Creek incident occurs.
Response: The final-form rulemaking establishes treatment standards for this wastewater that shall be met, which are protective of the uses of receiving streams, prior to any discharge to surface water, as suggested.
Comment: The proposed new regulations on TDS have already had a very positive result. The gas drilling industry has quickly moved to develop wastewater management strategies that rely on recycling. The gas exploration industry is very well funded and technically based. They have the means, as they already have proven, to respond to the challenges of their own wastewater. Put to the task, this industry is developing strategies that other industries can follow. These new technologies will translate into good, home grown jobs. Please hold the line on the proposed new standards. They are not perfect, but they are a very good start.
Response: The Board appreciates this comment.
Comment: These drillers need to be strictly regulated and they need to be taxed. This is no fledgling industry. With the good people of Pennsylvania already taxed to the gills, it makes no sense to have these well-organized predatory energy companies lobbying themselves into a free ride.
Response: This final-form rulemaking addresses effluent standards for the treatment of wastewaters containing TDS. This comment is not applicable to this final-form rulemaking.
Comment: We are concerned that that the projected discharges from drilling operations are greatly overstated and the ability to reuse flow back water has been underestimated.
Response: This final-form rulemaking takes a proactive approach to controlling TDS from the natural gas industry. The Marcellus Shale play is indeed in its infancy. The industry does not yet have answers to most of the questions about the play and, in particular, about the impacts the play could have on the waters of this Commonwealth. The Board's aim is to ensure that future growth of this industry is considered in the rules and regulations it puts in place now.
Comment: Streamline residual waste regs for the handling of brines after they have left a production site. Allow the ability for brine transfer stations or transfer operations to operate with streamlined regulations.
Response: This final-form rulemaking addresses effluent standards for the treatment of wastewaters containing TDS. This comment is not applicable to this final-form rulemaking.
Comment: The targets of this regulation appear to be one-time dischargers, such as the hydrofacking industry. Refocus the regulation to apply to the oil and gas industry only.
Response: Based on stakeholder comments received during an extensive public participation process, the final-form rulemaking adopts a combination of recommended approaches for addressing these larger loadings of TDS. This combination of approaches includes an industrial sector-based regulation along with a watershed-based analysis. The sector-based piece focuses on the natural gas industry.
Comments: After four decades of demonstrable improvement in water quality, the US Army Corps of Engineer's data shows that conditions are reversing on Pennsylvania's rivers. It is becoming apparent that the assimilative capacity of some rivers to receive TDS, if not already exceeded, is close to being exceeded, and simply cannot sustain the additional loading projected as a result of natural gas exploration activities. In the last two years, evidence of degradation, based on elevated specific conductivity readings recorded at water quality monitors located on the Monongahela River at Elizabeth, OA, the Casselman River at Markelton, PA, and the Conemaugh Dam, in addition to the recent Dunkard Creek aquatic kill, demonstrates that high TDS wastewaters threaten to undermine historical water quality improvements, posing a genuine and extreme threat to regional water quality.
Response: The Board agrees, and these facts support the need for this final-form rulemaking.
Mining-Related Comments
Mining-related comments are those comments that were from the mining industry or were in support of the mining industry. This final-form rulemaking is primarily to establish wastewater treatment requirements for wastewaters containing TDS; however, many believed that it could affect mining operations. The final-form rulemaking has been revised to make it clear that it does not apply to most mining operations.
Comment: The lack of regulation and insufficient bonding in the early years of coal mining have caused major environmental damage, requiring years and much money to clean up. Over 3,000 miles of streams are still impaired from that irresponsible behavior. We need to prevent this from happening in the future by regulating discharges of high TDS wastewater.
Response: The Board agrees, and this final-form rulemaking takes a proactive approach to controlling TDS from the natural gas industry.
Comment: The proposed standards are not based on sound science, are costly, burdensome, unworkable and therefore, threaten the vitality of the mining industry. Placing obstacles such as this does nothing to retain the jobs we have.
Response: From the inception of the final-form rulemaking, the intent of the rule was to exempt existing discharges, and insignificant discharges, from the effluent standards aimed at controlling the new, larger source of TDS. The provisions specifically allow for continued discharges of TDS wastewaters at authorized TDS loading levels and are designed to lessen the effects on existing and small discharges of TDS in this Commonwealth through the exemption and variance provisions. This new regulation will not impact reclamation activities at abandoned mines frequently operated by local watershed groups.
Comment: Current discharges from existing waste coal sites that are conducted in an environmentally sound manner should continue to be regulated under existing requirements. We believe that the proposed regulations could prevent remining and reclamation of waste coal sites.
Response: The final-form rulemaking exempts discharge loads of TDS authorized prior to August 21, 2010.
Comment: Revise 95.10(b)(5) to exempt discharges into mine pools that are permitted under Chapters 87, 88, 89, or 90.
Response: The regulation has been changed accordingly.
Health Based Comments
These were comments regarding the effects on public health that could be impacted by the final-form rulemaking. Most of the comments regarding the protection of drinking water. Most relate to fracking chemicals, but others related to the brominated disinfection byproducts that occurred in the Monongahela River.
Comment: There are no currently operating facilities capable of removing TDS. Since public water suppliers cannot treat this type of polluted water, the wastewater should be treated to a degree that would be protective of drinking water prior to discharge. Maintain the proposed treatment standards of 500 mg/L for TDS, and 250 mg/L for sulfates and chlorides.
Response: There are technologies that are capable of meeting these standards as noted in this preamble. The standards referenced were maintained for high-TDS wastewaters associated with the natural gas industry. For other industries, a different standard was set, but a variance from that standard can be granted when local streams are able to assimilate the loads without violating water quality standards.
Comment: Studies have shown that disinfection byproducts resulting from chemical reactions between disinfectants and organic materials present health risks to humans. The worst of these is brominated water, which has been shown to cause bladder cancer in humans. At present, the Monongahela River, with high concentrations of TDS presents higher levels of several of these contaminants.
Response: The Board agrees and cites one of these studies as a reference.
Environmental Comments
These were comments regarding the effects on the environment that could be impacted by the final-form rulemaking. Many related to harmful effects from an inadequately regulated mining industry. Others are concerned about the quality of streams in this Commonwealth and with aquatic life protection.
Comment: The Dunkard Creek tragedy is a good indicator of the consequences of high TDS wastewater discharges into our fresh water streams. The discharge of high TDS wastewater into the stream completely damaged the biological community in the stream by allowing the growth of toxic algae, which can only survive in salt water. The algae was responsible for the destruction of 43 miles of stream, including 161 species of fish, 14 species of freshwater mussels, and other aquatic creatures such as salamanders by dissolving exposed cells, including gills.
Response: The Board agrees and this incident was considered in the analysis and the need for the final-form rulemaking.
Comment: Watershed analyses conducted by the PA DEP indicate that several rivers are severely limited in their capacity to assimilate new loads of TDS and sulfates —primarily due to acid mine drainage from long-abandoned coal mines—a legacy of Pennsylvania's last energy rush. Increased TDS and sulfate loading would reverse years of hard-won progress by PA DEP in improving water quality in these watersheds.
Response: The Board agrees and these facts formed part of the basis for the final-form rulemaking.
Comment: DEP has not shown, by monitoring or sampling data, that water resources are at any sustainable risk from TDS concentrations.
Response: The Board does not agree. Studies described and others cited in this preamble provide more than a sufficient basis for this final-form rulemaking.
Comment: Research in 1997 states that TDS over 400 mg/L has a direct negative affect on the diversity of fish populations. Additional research in 2007 confirms this. It is recommended that the TDS standard be lowered to 400 mg/L.
Response: The recommended 400 mg/L standard is an ''instream'' number that would have to be achieved after mixing and dilution of the discharge with the receiving stream. The Department has reviewed the relevant data and determined that the current osmotic pressure criterion in water quality standards regulations provide protection for aquatic life at the point of discharge. The 500 mg/L standard proposed for the natural gas industry wastewaters is more stringent, as it would be applied at the end of the discharge pipe.
Economic Comments
These were comments regarding the effects on the economy that could be impacted by the final-form rulemaking, whether large-scale or small-scale. Some commentators felt that the Department did not understand the economic impact of the regulation and some believed that small oil and gas producers would be the hardest hit. Others commented that the regulation would discourage investment in this Commonwealth.
Comment: DEP does not fully understand, and has not evaluated, the economic impact this regulation has on industries in PA. The statewide impact will be in the billions of dollars to comply and will put companies of the Commonwealth at a disadvantage with its competitors.
Response: The Board does understand and has evaluated, through the TDS Stakeholders Subcommittee process, the rule's effect on a very large cross section of industries in this Commonwealth. To provide greater clarity to the scope of the regulation, the final-form rulemaking specifically exempts certain classes of TDS discharges from the application of the rule. This approach is designed to clearly exclude from the scope of this regulation all existing loadings of TDS authorized by the Department prior to the effective date of this final-form rulemaking, as well as new and expanding TDS sources, which the Department has determined are insignificant from a loading perspective.
Further, the Board agrees with the comments that were received by industries other than the oil and gas sector that point out that the proposed rulemaking was a one-size-fits-all approach that may not be appropriate. Different industries have vastly different wastewaters, even in the composition of the TDS. There are many different technologies that would be necessary to treat these different wastewaters, and the costs of treatment to a given standard could create an inequitable economic problem.
The Board addressed this issue and the comments received from the industries other than oil and gas in this final-form rulemaking. The approach establishes an effluent standard for these sectors at 2,000 mg/L and allows a variance from this standard under certain conditions specific to the watershed in which the discharge is located. The rule applies only to new and expanding loads of TDS, not the existing loads, making it more easily achieved.
Comment: The proposed regulations will limit the availability of commercial treatment of brine. The proposed regulations will essentially eliminate much of the current capacity to take brines to municipal treatment plants for disposal.
Response: The Board does not agree. The final-form rulemaking will provide regulatory certainty. The Department met with over 60 manufacturers and vendors of technologies for treating the very high levels of TDS from the natural gas industry, specifically the Marcellus shale formation. While many of these vendors do not have actual facilities in operation and are seeking to get into the business, at least six manufacturers have either piloted the technology at full scale or have facilities currently operating in other states.
Much of the hesitancy on the part of these technology vendors is the uncertainty regarding this rule. The companies are reluctant to move forward without a clear direction in regulation concerning what levels they will need to treat to for TDS. Implementing this final-form regulation will provide certainty to the companies proposing treatment facilities and give a clear guidance on what their facility will need to treat to regarding high TDS wastewaters.
In addition, investment companies have indicated that without clear direction they are less willing to provide capital for financing these types of wastewater treatment facilities. One company provided information that their treatment plant, if built and operated, could create approximately 70 to 100 short-term jobs during construction and about 12 permanent jobs during operation of their facility.
Finally, these highly-concentrated TDS wastewaters pose a great threat to the biological treatment processes at municipal sewage treatment plants and the final-form rulemaking prohibits that without adequate pretreatment facilities.
Comment: Each treatment option leaves a residual waste product which required further disposal adding to the cost of treatment for an issue that has not been identified as a Statewide or even prevalent concern. In addition, other environmental concerns associated with TDS reduction, such as energy consumption, air emissions, landfill capacity, and disposal costs have not been addressed.
Response: The Board appreciates this comment; however, based on the collective comments received determined that a sector-by-sector approach to controlling TDS is appropriate. High-TDS wastewaters from different industries present different treatment challenges. Not all industrial wastewaters containing TDS are consistent. Based on the need for regulation of a rapidly expanding industry which generates wastewaters with extraordinarily high levels of TDS and chlorides, the readily available proven treatment technologies for this wastewater, the low costs associated with treatment and the overwhelming public comment in favor of a standard for this industry, the final-form rulemaking focuses on treatment for oil and gas wastewaters. The final-form rulemaking now contains more specific treatment requirements for wastewater generated from all natural gas drilling activities.
New technologies are being developed that treat this wastewater without using large amounts of energy or emitting large quantities of air pollutants and the Board believes that this final-form rulemaking will continue to move that industry in that direction. In fact, the Board believes that the certainty provided by this rule will accelerate the development of more efficient treatment technologies, zero discharge technologies and also drive conservation and pollution prevention through reuse of the wastewater.
This industry will generate the residual solids as suggested. The Department continues to work with treatment technology providers to develop reusable end products from these materials to reduce waste and costs associated with this treatment.
Comment: The concerns of industry and environment are not mutually exclusive. Industry should be held to a high standard. Well run businesses know that it is much easier and less expensive to do job right first time, rather than clean up mistakes later.
Response: The Board appreciated these comments.
Legal Comments
These were comments regarding the legal concerns of the final-form rulemaking. For example, some stated that the Department failed to adequately consider statutory elements for rulemaking.
Comment: Environmental justice communities have been targeted for disposal of toxic wastewater. DELCORA had been permitted to receive, treat, and dispose of toxic wastewater into the Delaware River, even though the sewage treatment plant would not adequately treat the wastewater. Although the permit was rescinded due to community outrage, significant concern exists that it will happen in the future.
Response: DELCORA's permit to receive this wastewater was rescinded at the request of DELCORA. Regardless, all permit applications for treatment of this type of wastewater will be reviewed in accordance with existing Department regulations and, when effective, this final-form rulemaking. This final-form rulemaking requires adequate pretreatment of the natural gas wastewater to the specified standards.
Comment: The proposed rulemaking fails to adequately consider statutory elements, including the consideration of water quality management and pollution control in the watershed as a whole and the immediate and long-range economic impact upon the Commonwealth and its citizens.
Response: As stated in this preamble, this final-form rulemaking differs from the proposed rulemaking in several important respects. To provide greater clarity to the scope of the regulation, the final-form rulemaking specifically exempts certain classes of TDS discharges from the application of this final-form rulemaking. In addition, based on stakeholder comments received, the final-form rulemaking adopts a combination of recommended approaches for addressing these larger loadings of TDS. This combination of approaches includes an industrial sector-based regulation along with a watershed-based analysis. Since there are numerous industrial categories and subcategories that include TDS as a pollutant of concern in their wastewater discharges, the watershed-based approach for all industrial sectors other than oil and gas establishes an effluent standard, but also provide a variance option for these discharges. Further, the combination of these approaches does indeed consider the long-term economic impacts, as discussed throughout this preamble.
Comment: Definitions are overbroad and vague, and do not identify who is covered by the regulation and who is not.
Response: The Board agrees that the scope section should be revised. To provide greater clarity to the scope of the regulation, the final-form rulemaking specifically exempts certain classes of TDS discharges from the application of this rule. This approach is designed to clearly exclude from the scope of this regulation all existing loadings of TDS authorized by the Department prior to the effective date of this final-form rulemaking, as well as new and expanding TDS sources, which the Department has determined are insignificant from a loading perspective.
Comment: Chapter 95 should not replace Effluent Limitation Guidelines (ELGs) or Best Professional Judgment in the writing of permits.
Response: The final rulemaking does not do either. When ELGs exist, they are used to set effluent limitations. Best Professional Judgment is used by Department staff as a general rule in writing permits. The requirements of § 95.10 will be implemented in accordance with the framework established under § 92.2a (relating to treatment requirements).
Comment: DEP authority under state law is unclear or not clearly stated.
Response: The final-form rulemaking is adopted specifically under the authority of sections 5 and 402 of the act, which provide for the adoption of regulations implementing the purposes and requirements of the act and for the regulation of activities which create a danger of pollution to the waters of this Commonwealth, and section 1920-A of The Administrative Code of 1929, which authorizes the Board to promulgate rules and regulations necessary to implement the provisions of the act. In addition, section 304 of the act (35 P. S. § 691.304) authorizes the Department to adopt regulations necessary for the protection of the purity of the waters of this Commonwealth. Section 501 of the act (35 P. S. § 691.501) authorizes the protection of domestic water supplies. Notably, one of the fundamental policy objectives of the act, in section 4 (35 P. S. § 691.4) is ''to prevent further pollution of the waters of the Commonwealth.''
Technical Comments
These were comments regarding the technical aspects of the proposed rulemaking. Some were concerned with the perceived limited technical justification of the final-form rulemaking and others stated that the regulation does not offer a solution that addresses the problem.
Comment: The proposed rulemaking does not explain the problem nor does it offer a solution that addresses the problem. This proposed rulemaking has offered no scientific data or justification for imposing such severe limits. The proposed rulemaking is predicated on very limited sampling in the Monongahela River between October and December 2008 when river levels were at historical lows and there were high dissolved solids concentrations entering the Commonwealth from West Virginia.
Response: The Board disagrees with this comment. Neither the proposed rulemaking nor the final rulemaking is based on the conditions that are occurring in the Monongahela watershed. In the Monongahela, TDS levels have already exceeded water quality criteria. This means that allocations of TDS loads must be made for all dischargers in the watershed to bring the river back to compliance. The Department will be listing the Monongahela as impaired on its upcoming impaired waters list as required by the Federal Clean Water Act. The final-form rulemaking s intended to prevent other watersheds from becoming impaired, like the Monongahela.
The Board disagrees with the commentator's suggestions that the proposed rulemaking is not based on sufficient scientific data. The Department's analyses of watersheds across this Commonwealth were conducted using rigorous statistical methods. When the Department's analyses of WQN data showed the potential for water quality criteria violations, detailed studies were conducted in those watersheds.
The assessment process by the Department in the Beaver River watershed is the same as occurred in the Monongahela. The potential for a TDS problem has been identified from WQN data, and the Department is responding by collecting grab samples and deploying conductivity probes. It takes time to collect the data, but when an adequate number of samples become available, the Department will not simply rely upon a WQN frequency analysis, as suggested. It will consider the entire weight of evidence. Similar assessments of WQN data were made for the West and North Branches of the Susquehanna River, the Clarion River and Moshannon Creek, which were previously discussed.
A glaring omission by those who question the scientific need for the rule is any mention of the environmental disaster in Dunkard Creek that destroyed 26 miles of stream. The problem was high TDS concentrations leading to colonization and growth of golden algae, as well as osmotic pressure exceeding the regulatory numeric criterion. Dunkard Creek is a good example of what can happen if TDS is not controlled, and the loss of this important public resource was an environmental tragedy, documented by the loss of aquatic life, including endangered mussels.
Comment: The fact that the proposed rule focuses on a statewide limit, as opposed to being imposed on a watershed specific basis like other wastewater discharge requirements, will not result in an efficient use of resources.
Response: The Board agreed and revised its approach in the final-form rulemaking to include a watershed-by-watershed analysis as suggested, to more efficiently use its limited resources.
Comment: The health of aquatic organisms is protected by the current osmotic pressure water quality standard.
Response: The Board agrees to the extent that the effects of individual discharges on receiving streams are evaluated at the point of discharge; however, TDS is a conservative parameter, meaning that TDS is not subject to fate during transport in the water column. This means that a pound of TDS discharged in the headwaters of a watershed is still a pound of TDS at the mouth of the watershed. Osmotic pressure is not an effective measure of water quality from cumulative loadings of TDS from multiple discharges that can cause violations of water quality criteria at design conditions.
Comment: The number of NPDES permit applications should not be used as a basis for further regulation since these applications are speculative in nature.
Response: The Board disagrees and notes that the Department will treat these applications as authentic, each requesting a part of any available assimilative capacity, unless they are formally withdrawn.
Comment: The criteria for TDS, sulfates and chlorides are based on secondary maximum containment levels and are not a risk to human health.
Response: The Board does not necessarily agree with this suggestion. While TDS and sulfate concentrations manifest as secondary contaminants at the levels established as MCLs, they are toxic to both humans and aquatic life at higher concentrations. For example, sulfates begin to exhibit a laxative effect on humans at concentrations between 500 mg/L and 750 mg/L, while the secondary MCL is 250 mg/L.
Administrative Comments
These were comments regarding administrative aspects of the rulemaking, especially as it relates to the scope of the regulation. Many comments stated that the final-form rulemaking should be implemented immediately, some wanted elimination of the threshold for large sources, others wanted whole effluent toxicity requirements and others wanted regulation of the reuse of fracking wastewater.
Comment: Implement these proposed standards immediately. Do not postpone the effective date until 2011.
Response: The final-form rulemaking will become effective August 21, 2010.
Comment: The time frame of January 1, 2011 is an unrealistic goal for the implementation of this proposed rulemaking. The time required for design, permitting, ordering, construction, and final testing will not be possible sooner than 30-36 months.
Response: The Permitting Strategy for High—TDS Wastewaters (April 2009) establishes two dates-April 1, 2009, when the strategy became effective and January 1, 2011, when compliance with effluent standards was expected. In this final-form rulemaking, both the April 1, 2009, and January 1, 2011, have been changed to August 21, 2010. Prior to August 21, 2010, facilities are considered to be existing. After August 21, 2010, they will be new or expanding loads.
The final-form rulemaking only applies to new and expanding facilities, meaning facilities that will not have been constructed by August 21, 2010. These new facilities literally will not be able to accept wastewater and discharge until they are constructed. Until these new facilities are constructed, wastewater can continue to be treated and disposed at existing facilities. There is currently no shortage of treatment capacity. Therefore, it appears that this argument is without merit.
Comment: The limits should be applicable to all treatment plants. New sources should be covered immediately, and existing sources of large TDS discharges should be covered through the NPDES renewal process.
Response: From the inception of the final-form rulemaking, the intent of the Board was to exempt existing discharges, and insignificant discharges, from the effluent standards aimed at controlling the new, larger source of TDS. The provisions specifically allow for continued discharges of TDS wastewaters at current loads and are designed to lessen the effects on existing and small discharges of TDS in this Commonwealth through the exemption and variance provisions.
Comment: Minimize impacts to existing operating facilities; including POTWs which receive trucked in wastewaters and septage, which often contains in excess of 2,000 mg/L.
Response: From the inception of the final-form rulemaking, the intent of the Board was to exempt existing discharges, and insignificant discharges, from the effluent standards aimed at controlling the new, larger source of TDS. The provisions specifically allow for continued discharges of TDS wastewaters at current loads and are designed to lessen the effects on existing and small discharges of TDS in this Commonwealth through the exemption and variance provisions.
Comment: The standards for TDS and the threshold concentration should be stated as daily maximum, not a monthly average.
Response: The Board does not agree with this suggestion. The 500 mg/L standard as a monthly average allows for effluent variability from treatment facility operations, and is more in line with the instream standard and MCL for TDS, which are both monthly averages.
Comment: There should be a minimum requirement that all discharges not cause background in-stream concentrations of TDS to rise above 133% of background levels (the Delaware River Basin Commission standard).
Response: The Board included this provision in the final-form rulemaking.
Comment: Due to the highly varying toxicity of both TDS discharges and especially Marcellus wastewater, Whole Effluent Toxicity (WET) testing should be required utilizing both an acute and chronic toxicity standard.
Response: If TDS are controlled to less than 500 mg/L, no WET is necessary.
Comment: Consideration should be given for the implementation of seasonal or flow-based TDS limits, with the intent of restricting TDS mass discharges during periods of low flow. Consideration should be given to the implementation of a TDS trading system, which could effectively address legacy TDS contributors in return for higher discharge limits for municipalities and industry.
Response: Real-time management is discussed in great detail in this preamble. Support for this position relies on a certain rationale that does not reflect real-world considerations or good science. This method of managing flows on a real-time basis presents many problems, most notably compliance with Federal and State regulatory water quality standards.
Comment: The regulation penalizes water reuse and recycling. Reduction in water use will result in a higher concentration for the same mass loading. Change ''2000 mg/L or 100,000 lbs/day'' to ''100,000 lbs/day and 2000 mg/L'' in applicability criteria.
Response: The final-form rulemaking promotes reuse of natural gas industry wastewater. The final-form rulemaking no longer defines high-TDS wastewater in the manner cited in this comment.
Comment: Sampling done by DEP and posted on the SWRO web site used an inappropriate testing method, drying the samples at 105 Deg, rather than at 180, which is required by EPA and USGS test methods, which could result in higher TDS concentrations due to the inclusion of water in the results.
Response: This comment is not accurate. Both laboratory methods are correct. In fact, the method used by the Department may be ''more correct'' in measuring ''total'' dissolved solids, as it measures both the organic and inorganic components of the TDS.
Comment: Since changes are inevitable, you should republish as proposed or advanced notice of final rulemaking.
Response: The Board did not publish an advanced notice of final rule making. Issuing an advanced notice of final rulemaking is discretionary and, given the extensive public outreach for this regulation, including the cooperative work by the Department with the TDS Stakeholders Subcommittee, and the fact that the final-form rulemaking incorporates many of the recommendations of the stakeholders, the Board does not believe an advanced notice of final rulemaking will result in additional value, but rather would only lead to unnecessary delay.
Comment: Consider separate standards for estuaries and other high naturally-occurring TDS waters.
Response: The watershed-based approach contained in the final-form rulemaking accomplishes this.
G. Benefits, Costs and Compliance
Benefits
Promulgation and implementation of this final-form rulemaking will assure that watersheds in this Commonwealth will not exceed 500 mg/L of TDS in stream, protecting aquatic life and drinking water. This added level of protection will prevent impairment of watersheds and prevent existing and new dischargers of TDS from having to make large investment in treatment technologies resulting from Federally-mandated TMDL allocations.
This final-form rulemaking exempts many small dischargers that are not a part of the projected problem, such as sewage treatment plants, abandoned mine discharge treatment plants, surface mining, small food processors, and the like The final-form rulemaking allows these existing dischargers to continue operating under current scenarios.
The final-form rulemaking addresses the overwhelming public comments in support of a 500 mg/L standard for the oil and gas industry. The final-form rulemaking focuses more precisely on the specific pollution prevention problem that needs to be addressed so that the regulatory requirement is reasonable.
The final-form rulemaking is consistent with the Federal approach by separating industry sectors and requirements for ''new'' versus ''existing'' sources. It also assures the public that the Marcellus Industry in this Commonwealth will not harm streams. It accomplishes this through requiring treatment, promoting the reuse of flowback and production waters, driving methods of treatment and disposal that do not involve stream discharge and encouraging treatment technology expansion and development for future sources of high TDS, in turn creating new jobs for residents in this Commonwealth.
Finally, it employs the approach preferred by most members of industry. The final-form rulemaking addresses the difficulty from setting an end-of-pipe effluent limitation applicable to numerous industry sectors because of differences in feasible technology and costs across industries affected. This final-form rulemaking is fair to existing operations and industries.
Compliance Costs
The final-form rulemaking could present new costs for treatment if an existing industrial facility wishes to expand, or a new industry wishes to start, and is unable to obtain a variance.
The final-form rulemaking will present treatment costs to the oil and gas industry, which may be minimized through recycling and reuse, zero discharge treatment technologies or underground injection options. However, this industry should be very capable of absorbing these costs as minimal when compared to the expected revenues from the Marcellus shale formation in this Commonwealth.
Compliance Assistance Plan
The Department will provide written notification of the changes to the industrial categories that may be affected.
Paperwork Requirements
There are no paperwork requirements imposed by this final-form rulemaking.
H. Pollution Prevention
The matters affected by this final-form rulemaking promote pollution prevention and control.
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 final-form rulemaking effectively fulfills the goals for which it was intended.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 28, 2009, the Department submitted a copy of the notice of proposed rulemaking, published at 39 Pa.B. 6467, to IRRC and the Chairpersons of the Senate and House Environmental Resources and Energy Committees (Committee) 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 the final-form rulemaking, the Department has considered all comments from IRRC, the Committees and the public.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on June 8, 2010, the Senate Committee notified IRRC of its intent to review the final-form rulemaking. Under section 5.1(j.2) of the Regulatory Review Act, on July 2, 2010, after the conclusion of the additional review period requested, the final-form rulemaking was deemed approved by the Senate Committee. Under section 5.1(j.2) of the Regulatory Review Act, on June 16, 2010, this final-form rulemaking was deemed approved by the House Committee. Under section 5.1(e) of the Regulatory Review Act, IRRC met on June 17, 2010, and approved the final-form rulemaking.
K. 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 and all comments were considered.
(3) The regulations do not enlarge the purpose of the proposed rulemaking published at 39 Pa.B. 6467 with a correction published at 39 Pa.B. 6547.
(4) These regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C.
L. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 95, are amended by amending § 95.2 and by adding § 95.10 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 review and approval as to legality and form, as required by law.
(c) The Chairperson of the Board shall submit this order and Annex A to IRRC and the 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 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 40 Pa.B. 3753 (July 3, 2010).)
Fiscal Note: Fiscal Note 7-446 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 95. WASTEWATER TREATMENT REQUIREMENTS § 95.2. Effluent standards for industrial wastes.
Industrial wastes must meet the following effluent standards:
(1) Wastes must have a pH of not less than 6 and not greater than 9, except where:
(i) The wastes are discharged to an acid stream, in which case the pH may be greater than 9.
(ii) The discharger affirmatively demonstrates, in writing, to the Department that biological respiration in the wastewater treatment system will cause the discharge to exceed the limits in this paragraph and that exceeding these limits will not result in a violation of applicable water quality standards or of the applicable treatment requirements and effluent limitations to which a discharge is subject under the Federal Act, in which case the Department may grant a variance, in writing, from the limitation set forth in this paragraph.
(2) Oil-bearing wastewaters, except those subject to paragraph (3), must comply with the following:
(i) At no time cause a film or sheen upon or discoloration of the waters of this Commonwealth or adjoining shoreline.
(ii) At no time contain more than 15 milligrams of oil per liter as a daily average value nor more than 30 milligrams of oil per liter at any time, or whatever lesser amount the Department may specify for a given discharge or type of discharge as being necessary for the proper protection of the public interest or to meet any requirements based upon the State Act or the Federal Act, as defined in § 92.1 (relating to definitions).
(3) Petroleum marketing terminals must:
(i) Be provided with facilities to remove oil from waters, including stormwater runoff, before discharge into waters of this Commonwealth. Compliance with this paragraph constitutes compliance with paragraph (2)(i) except to the extent that the State Act or Federal Act or regulations promulgated thereunder impose a more stringent requirement.
(ii) Develop, implement and keep up to date pollution incident prevention plans as described in § 91.34 (relating to activities utilizing pollutants).
(iii) Design, maintain and utilize oil removal facilities that consist of an American Petroleum Institute (A.P.I.) listed oil separator, unless the person operating the facility can demonstrate to the Department that an alternate design is equivalent or better in removing oil from water to maintain and protect the waters of this Commonwealth, including all existing and designated uses established under Chapter 93 (relating to water quality standards).
(4) Waste may not contain more than 7 milligrams per liter of dissolved iron.
(5) When surface waters are used in the industrial plant, the quality of the effluent need not exceed the quality of the raw water supply if the source or supply would normally drain to the point of effluent discharge, unless otherwise required under the act or Federal Act or regulations promulgated thereunder.
§ 95.10. Treatment requirements for new and expanding mass loadings of Total Dissolved Solids (TDS).
(a) The following are not considered new and expanding mass loadings of TDS and are exempt from the treatment requirements in this section:
(1) Maximum daily discharge loads of TDS or specific conductivity levels that were authorized by the Department prior to August 21, 2010. These discharge loads will be considered existing mass loadings by the Department.
(i) Relocation or combination of existing discharge points of existing mass loadings of TDS do not constitute a new or expanding mass loading unless total mass loadings are increased.
(ii) Existing publicly owned treatment works (POTW) as defined in § 92.1 (relating to definitions) and industrial waste treatment facilities authorized prior to August 21, 2010, under permits authorizing the acceptance, treatment and discharge of TDS do not constitute a new or expanding mass loading unless total mass loadings accepted, treated and discharged are to be increased. Only the net increase in TDS mass loadings from these facilities will be considered a new and expanding mass loading of TDS.
(2) Facilities treating postmining pollutional discharges from abandoned mine sites. For purposes of this section, abandoned mine sites include all lands and water eligible for reclamation or drainage abatement or treatment expenditures under section 402(g)(4) or section 404 of the Surface Mining Control and Reclamation Act of 1977 (30 U.S.C.A. §§ 1232(g)(4) and 1234).
(3) Surface mining activities with preexisting discharges subject to Chapter 87, Subchapter F or Chapter 88, Subchapter G (relating to surface coal mines: minimum requirements for remining areas with pollutional discharges; and anthracite surface mining activities and anthracite bank removal and reclamation activities: minimum requirements for remining areas with pollutional discharges) and preexisting discharges subject to Chapter 90, Subchapter F (relating to coal refuse disposal activities on areas with preexisting pollutional discharges).
(4) Discharges from active surface coal mining operations with an open pit dimension of less than 450,000 square feet exposed at any time.
(5) Discharges from erosion and sediment control facilities used at surface mining activities as defined in § 86.1 (relating to definitions).
(6) Existing mine drainage directed to a mine pool where the mine pool is being treated in accordance with applicable requirements in Chapters 91—96.
(7) New and expanding discharge loadings of TDS equal to or less than 5,000 pounds per day, measured as an average daily discharge over the course of a calendar year, otherwise known as the annual average daily load.
(8) Discharges of wastewater produced from industrial subcategories with applicable effluent limit guidelines for TDS, chlorides or sulfates established as best available technology economically achievable (BAT), best conventional pollutant control technology (BCT) or new source standards of performance, by the administrator of the EPA under sections 303(b) and 306 of the Federal Act (33 U.S.C.A. §§ 1314(b) and 1316).
(b) Operations with wastewater resulting from fracturing, production, field exploration, drilling or completion of natural gas wells shall comply with the following requirements:
(1) Except as provided in paragraph (3), there may be no discharge of wastewater into waters of this Commonwealth from any source associated with fracturing, production, field exploration, drilling or well completion of natural gas wells.
(2) A wastewater source reduction strategy shall be developed by the well operator by August 22, 2011, and submitted to the Department upon request. The source reduction strategy must identify the methods and procedures the operator shall use to maximize the recycling and reuse of flow back or production fluid either to fracture other natural gas wells, or for other beneficial uses approved under Chapter 287 (relating to residual waste management—general provisions). The strategy shall be updated annually and include, at a minimum, the following information:
(i) A complete characterization of the operator's wastewater stream including chemical analyses, TDS concentrations and monthly generation rate of flowback and production fluid at each natural gas well.
(ii) A description and evaluation of potential wastewater source reduction options through recycling, reuse or other beneficial uses.
(iii) The rationale for selecting the source reduction methods to be employed by the operator.
(iv) Quantification of the flowback and production fluid generated by each well which is recycled or reused either to fracture other natural gas wells or for other approved beneficial uses.
(3) New and expanding treated discharges of wastewater resulting from fracturing, production, field exploration, drilling or well completion of natural gas wells may be authorized by the Department under Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance) provided that the following requirements are met:
(i) Discharges may be authorized only from centralized waste treatment facilities (CWT), as defined in 40 CFR 437.2(c) (relating to general definitions).
(ii) Discharges may not be authorized from a POTW, as defined in § 92.1, unless treatment at a CWT meeting all of the requirements of this chapter precedes treatment by the POTW.
(iii) The discharge may not contain more than 500 mg/L of TDS as a monthly average.
(iv) The discharge may not contain more than 250 mg/L of total chlorides as a monthly average.
(v) The discharge may not contain more than 10 mg/L of total barium as a monthly average.
(vi) The discharge may not contain more than 10 mg/L of total strontium as a monthly average.
(vii) The discharge complies with the performance standards in 40 CFR 437.45(b) (relating to new source performance standards (NSPS)).
(4) Deep well injection of wastewater resulting from fracturing, production, field exploration, drilling or well completion of natural gas wells shall comply with § 78.18 (relating to disposal and enhanced recovery well permits).
(c) New and expanding mass loadings of TDS not addressed in subsections (a) and (b) may not contain more than 2,000 mg/L of TDS as a monthly average, unless a variance is approved by the Department under this section. For purposes of this subsection, any net increase in existing TDS loadings authorized after August 21, 2010, will be considered a new and expanding mass loading of TDS.
(d) A request for a variance to subsection (c) shall be submitted to the Department and be accompanied by the following information:
(1) An analysis of the applicant's existing discharge loads of TDS, and the projected new discharge loads associated with the proposed new and expanding mass loadings of TDS.
(2) An analysis of the applicant's existing treatment facilities and the ability of those facilities to meet the requirement in subsection (c).
(3) An analysis of upgrades necessary to bring the applicant's existing facility into compliance with subsection (c) and the estimated costs associated with the upgrades.
(4) An analysis of the receiving stream's water quality for TDS at, or upstream from, the proposed point of discharge.
(e) A request for a variance to subsection (c) will be subject to the public notice requirements for permit applications in § 92.61 (relating to public notice of permit application and public hearing).
(f) A variance to subsection (c) may be approved by the Department only under the following conditions:
(1) A watershed analysis conducted by the Department determines that a variance will not result in a reduction of available assimilative capacity for TDS to less than 25% of the total available assimilative capacity at the next downstream point of water quality standards compliance. Available assimilative capacity will be calculated using design flow conditions under § 96.4(g) (relating to TMDLs and WQBELs).
(2) The resulting instream concentration of TDS at the point of discharge from the new or expanding loading will not violate water quality standards in Chapter 93 (relating to water quality standards).
(g) Coal-fired electric steam generating units subject to effluent limitations in 40 CFR Part 423 (relating to steam electric power generating point source category), including TDS effluent limitations created by the EPA rulemaking on effluent limitations scheduled for completion by March 2014 (Docket No. EPA-HQ-OW-2009-0819), must comply with subsection (c) by December 31, 2018, unless exempted by subsection (a).
[Pa.B. Doc. No. 10-1572. Filed for public inspection August 20, 2010, 9:00 a.m.]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
