RULES AND REGULATIONS
Title 25--ENVIRONMENTAL
PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 92, 93 AND 95--97]
Water Quality
[30 Pa.B. 6059] The Environmental Quality Board (Board) is amending Chapters 92, 93, 95 and 97, and adding new Chapter 96, as set forth in Annex A. This notice is given under Board order at its meeting of June 20, 2000.
A. Effective Date
These amendments will be effective upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information on Chapters 92 and 97 (relating to National Pollutant Discharge Elimination System; and industrial wastes), contact Milton Lauch, Chief, Division of Wastewater Management, Bureau of Water Quality Management, 11th Floor, Rachel Carson State Office Building, P. O. Box 8465, Harrisburg, PA 17105-8465, (717) 787-8184, or William J. Gerlach and William S. Cummings, Jr., Assistant Counsels, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.
For further information on Chapters 93, 95 and 96 (relating to water quality standards; wastewater treatment requirements; and water quality standards implementation), contact Edward R. Brezina, Chief, Division of Water Quality Assessment and Standards, Bureau of Watershed Conservation, 10th Floor, Rachel Carson State Office Building, P. O. Box 8555, Harrisburg, PA 17105-8555, (717) 787-9637 or William J. Gerlach, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.
Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users) and request that the call be relayed. These final-form regulations are available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
These amendments are made under the authority of the following acts: sections 5(b)(1) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(1) and 691.402) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510- 20), which grant to the Board the authority to develop and adopt rules and regulations to implement the provisions of The Clean Streams Law (35 P. S. §§ 691.1--691.1001).
D. Background and Summary
This final rulemaking revises water quality management regulations including Chapters 92, 93, 95 and 97, and creates a new Chapter 96 to incorporate Total Maximum Daily Loads (TMDLs) into the regulatory calculus, all as part of the Regulatory Basics Initiative (RBI). The RBI is a multistep process to evaluate regulations considering several factors including whether requirements are more stringent than Federal regulations without good reason; impose economic costs disproportionate to the environmental benefit; are prescriptive rather than performance-based; inhibit green technology and pollution prevention strategies; are obsolete or redundant; lack clarity; or are written in a way that causes significant noncompliance.
These regulatory revisions streamline and clarify regulatory requirements, update the regulations to be consistent with Federal regulatory changes where indicated, consolidate certain chapters, and preserve Pennsylvania-specific requirements to serve the citizens of this Commonwealth. These final-form regulations may affect persons who discharge wastewater into surface waters of this Commonwealth or otherwise conduct activities which may impact these waters.
The Air and Water Quality Technical Advisory Committee (AWQTAC) and its successor committee, the Water Resources Advisory Committee (WRAC), provided input on the proposed amendments. The proposal was adopted by the Board as proposed rulemaking at its June 16, 1998, meeting. The proposal appeared at 28 Pa.B. 4431 (August 29, 1998), with provisions for a 60-day public comment period and three public hearings. The public comment period concluded on October 28, 1998. In response to the public comments received on the proposal, the Department revised the proposal in the form of an Advance Notice of Final Rulemaking (ANFR) proposal. Notice of the availability of the ANFR appeared at 29 Pa.B. 4872 (September 18, 1999) with provisions for a public comment period open until November 17, 1999, and three public meetings/hearings. The Department received approximately 1,500 public comments on the ANFR. The comments received on the proposed regulations and on the draft final regulations are summarized in Section E of the Preamble.
The Board has considered all of the public comments received on both its proposed rulemaking and the Department's ANFR in preparing these final-form regulations. Those portions of the draft final-form regulations that would potentially affect agriculture were presented to the Agricultural Advisory Board (AAB) on February 16, 2000. Following the meeting, the AAB sent a letter to Secretary Seif in opposition to the existing regulatory requirements concerning public hearings for individual NPDES permit applications for existing concentrated animal feeding operations (CAFOs) in High Quality and Exceptional Value Waters. The draft final-form regulations were discussed with and approved by WRAC on March 8, 2000. WRAC also submitted minutes of its meeting to document its comments on the regulations. The valuable input from the public and the collective knowledge and experience drawn from advisory committees and others on these proposals has been utilized to develop a regulation which carefully balances the needs of citizens and the regulated community in assuring the protection of this Commonwealth's waters.
E. Summary of Comments and Responses on the Proposed Rulemaking and the ANFR
These regulatory revisions streamline, clarify and consolidate the regulatory requirements. Specifically, Chapter 92 has been modified to incorporate portions from other chapters to address the permitting of wastewater discharges into surface waters. The water quality standards implementation provisions in Chapter 93 and portions of Chapter 95 are moved to Chapters 96 and 92, as appropriate. Chapter 96 incorporates existing and modified provisions of Chapters 93, 95 and 97, and includes language describing TMDLs and individual water quality-based effluent limitations. The provisions of Chapter 97 have been relocated to Chapters 92, 95 and 96.
The preamble to the proposed rulemaking asked for comment on three specific issues. 1) A few comments were received on the question of additional public participation for NPDES permitting. The comments were split on the issue, and no change has been made to the current requirements. 2) The question of whether or not the potable water supply use should continue to be a Statewide use, or if it should be changed so that applicable water quality criteria are only applied at existing or planned potable water supply intakes, received several comments on both sides. Some comments stated that additional burdens were placed on dischargers to meet criteria more stringent than necessary, and other comments believed that protection of human health and water supplies were the most important factors in the decision. Based on an analysis of public comments and on the basis that the potable water supply use has been protected Statewide for many years and will impose no new requirements on dischargers, no change is being made to the potable water supply use, and the current language is retained. 3) No one commented on the request seeking alternative methods of analysis for color.
Because portions of this regulatory package constitute the Triennial Review of Water Quality Standards mandated by Envirnomental Protection Agency (EPA) regulations in 40 CFR Part 131 (relating to water quality standards), the following considerations were made. Part of the review requires that states reexamine waterbody 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. § 1251(a)(2)). The Department evaluated the two waterbodies where the uses are not met: (1) the Harbor Basin and entrance channel to Outer Erie Harbor/ Presque Isle Bay and (2) several zones in the Delaware Estuary.
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 boat and shipping traffic pose a serious safety hazard in this area. This decision was based on a use attainability study in 1985. Because the same conditions exist today, no change to the designated use for Outer Erie Harbor/Presque Isle Bay is made.
The Department cooperated with the Delaware River Basin Commission (DRBC), EPA and other DRBC signatory states on a comprehensive use attainability 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. Criteria for enterococcus and changes in application to the fecal coliform criteria in this area reflect the use. The changes were incorporated into §§ 93.9e and 93.9g (relating to Drainage Lists E and 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.
The Department is also incorporating §§ 92.8a(c), 92.13(b), 92.21(b)(5) and 92.55 into its water quality standards. This clarifies the Department's ability to incorporate schedules of compliance in NPDES permits when a Federal statutory deadline has passed pursuant to the decision in In the Matter of Star-Kist Caribe, Inc., NPDES Appeal No. 88-5, 1990 NPDES LEXIS 4 (April 16, 1990).
In addition, an error in § 93.9p (relating to Drainage List P) for Tunungwant Creek in McKean County, which states that the water contact sport use (WC) should be deleted for the main stem portion from the confluence of the East and West Branches to the PA-NY State border, has been corrected. The Department conducted a use attainability study for Tunungwant Creek in 1985 and concluded that, while there were existing land use and man-made activities adversely affecting the quality of water and limiting recreational uses in the stream, these man-induced conditions were not considered irretrievable. Accordingly, the water contact sports use was added as a designated use to Tunungwant Creek at the November 15, 1988, Board meeting, and this final-form rulemaking was published at 17 Pa.B. 968 (March 11, 1989). This regulatory revision was not, however, incorporated into the Pennsylvania Code until now.
A detailed description of the revisions to the proposal by chapter and section follows:
General Many comments objected that the proposal weakened water quality protection in this Commonwealth and that the comment period was insufficient to address the wide scope of changes. In response, the Department prepared an ANFR and offered an additional comment period and a series of three public informational meetings and public hearings. The change of most concern in Chapter 92 was § 92.81(a)(5) (relating to toxic or hazardous pollutants and general NPDES permits). In response to comments, the current language of the section, prohibiting the use of general NPDES permits in High Quality and Exceptional Value Waters, is retained.
Other comments suggested that the Department should make its water quality standards more stringent than Federal regulations or as stringent as practicable. The RBI only allows for more stringent standards when a compelling state interest is established.
A commentator stated that State regulations cannot become effective until receipt of EPA approval, based on a Federal case in Alaska. First, this case applied only to water quality standards, and not other State regulations which regulate water quality in some way, such as implementation regulations. Moreover, the Commonwealth has the duty and obligation under State statutes to promulgate and implement regulations, including water quality standards regulations, to protect this Commonwealth's water quality regardless of Federal action, delay or inaction. The revisions to the Federal regulations which became final on April 27, 2000 (64 Fed. Reg. 37072) only apply to water quality standards ''for Clean Water Act'' (CWA) purposes. The Commonwealth will continue to issue NPDES permits based on the best available scientific information in its water quality standards, which may or may not be included in a water quality standards regulation approved by the EPA for CWA purposes. The Department, not the EPA, must defend the permits it issues in this Commonwealth, and has an obligation to apply applicable State water quality standards regulations in issuing the permits. The EPA has the legal right to object to an NPDES permit if they believe the state water quality standard used as a basis for the permit limit is insufficient for CWA purposes.
Concern was expressed that the public comment period was insufficient. The Department provided an additional 60-day public comment period following the 30-day comment period to obtain additional input on the regulations. Over 300 commentators took advantage of the extended comment period.
Chapter 92. National Pollutant Discharge Elimination System The provisions of this chapter incorporate by reference portions of Federal regulations. This was done to limit the verbatim transfer of lengthy Federal regulations into this chapter. For this reason, it may be necessary for permittees to refer to Chapter 92 and 40 CFR Parts 122, 124 and 125 (relating to EPA administered permit programs: the National Pollutant Discharge Elimination System; procedures for decisionmaking; and criteria and standards for the National Pollutant Discharge Elimination System) to determine applicable requirements.
§ 92.1. Definitions.
The following definitions contained in the proposal were deleted in the final-form regulations: ''average annual discharge limitation,'' ''average monthly discharge limitation,'' ''average weekly discharge limitation,'' ''bypass,'' ''complete application,'' ''LA-Load allocation,'' ''loading capacity,'' ''major facility,'' ''natural quality,'' ''operator,'' ''owner,'' ''separate storm sewer overflow,'' ''TMDL'' and ''WLA-Wasteload allocation.'' Deletions were based on comments received regarding the need for or clarity of these definitions.
Definitions for ''agricultural operation,'' ''AEU--animal equivalent unit (AEU),'' ''CAO--concentrated animal operation,'' ''indirect discharger,'' ''intermittent stream,'' ''perennial stream'' and ''small municipal separate storm sewer system'' were added and the proposed definition of ''CAFO--concentrated animal feeding operation'' was modified based on comments recommending that the Department's CAFO Strategy be incorporated in the final-form regulations.
Commentators recommended that a number of definitions be modified to be more consistent with Federal definitions. A number of definitions were modified in the final rule as follows:
The definition of ''BAT--Best available technology'' was modified to make the definition more consistent with the Federal definition.
The definition of ''BMPs--Best Management Practices'' was modified by deleting the phrase ''pollution prevention measures; source reduction procedures; water conservation practices; erosion and sedimentation control plans, stormwater management measures; and'' to be more consistent with the Federal definition.
The definition of ''conventional pollutant'' has been modified by deleting ''nitrites, nitrate nitrogen and phosphorous'' to make the definition consistent with the Federal definition.
The term ''facility or activity'' is modified to be consistent with the Federal definition.
The word ''used'' has been deleted from the definition of ''effluent limitation guideline'' to make the definition consistent with the Federal definition.
The eight permit categories listed within the definition of ''point source'' were deleted to simplify the definition. The word ''or'' was deleted and ''and'' inserted in lieu thereof to make the definition more consistent with the Federal definition.
Commentators proposed revisions to definitions for clarity. The following changes were made to definitions in the final-form regulations:
The definition of ''CCW--Contact cooling water'' was amended by deleting the phrase '', or which otherwise has the potential to become contaminated'' because it was unclear.
The definition of ''CSO--Combined sewer overflow'' was amended to make it clear that these overflows occur ''prior to reaching the headworks of the sewage treatment facility.''
Definitions for ''intermittent stream'' and ''perennial stream'' were added because these terms are used in the definition of surface waters.
The definition of ''NPDES reporting form'' is clarified by deleting ''which includes'' from the definition and adding ''and'' in lieu thereof.
The last sentence in the definition of ''process wastewater'' was deleted as unnecessary.
The definition of ''stormwater discharges associated with construction activities'' was revised to provide consistency with the definition of ''NPDES permit for stormwater discharges associated with construction activities'' in § 102.1 (relating to definitions).
Recommended changes to the definitions of ''best available technology,'' ''applicable effluent limitations'' and ''toxic pollutant'' were not made because the definitions are based on Federal definitions.
§ 92.2. Incorporation of Federal regulations by reference.
A commentator stated that incorporation of Federal regulations by reference violates State law. This practice is not a violation of any State law and has been done before.
In response to comments requesting clarity, the last sentence of § 92.2(a) (relating to incorporation of Federal regulations by reference) has been deleted and new language added to clarify that if there is a conflict among Federal and State regulatory provisions, the provision in Chapter 92 shall be used unless the Federal provision is more stringent.
A typographical error was corrected by changing ''(h)(1)'' to ''(h), (i)(2), (j), (k), (l)'' in subsection (b)(5).
In response to comments received, subsection (b)(6) was deleted in the final-form regulations to incorporate the Department's CAFO Strategy into the regulations. The Federal references are inconsistent with the strategy.
Several commentators suggested sections of the Federal regulations that should have been incorporated by reference because they are not addressed in Chapter 92. Subsection (b)(19), (22) and (23) was added in the final-form regulations to identify these additional Federal provisions incorporated by reference.
Commentators questioned the meaning of the qualifying term ''substantive and procedural.'' Subsection (c) was amended in the final-form regulations by deleting the words ''substantive or procedural'' to make the section more clear.
§ 92.2a. Treatment requirements.
Subsection (a) was modified in the final-form regulations by deleting the last sentence limiting treatment requirements and effluent limits to those established under the Federal Clean Water Act (33 U.S.C.A. §§ 1251--1376).
Commentators questioned the protection of threatened species not yet listed in the Pennsylvania Natural Diversity Inventory but included on Federal listings. The reference to the ''Pennsylvania Natural Diversity Inventory'' (PNDI) in subsection (c) has been deleted to allow for consideration of threatened species not yet included on that list, but established as threatened when someone identifies and documents the presence of these to the Department. The PNDI will still be used as the source of information for threatened species in this Commonwealth.
§ 92.2b. Pollution prevention.
The proposed pollution prevention amendments were deleted based on comments questioning the inclusion of guidelines that are not regulatory requirements, and the potential for these recommendations to take on regulatory meaning. This section was revised to provide that the Department will encourage pollution prevention and provide assistance to permittees in the consideration of pollution prevention measures. Comments were received opposing this change during the ANFR comment period. Commentators stated that the change weakened the regulations. The changes to this section proposed during the ANFR were retained in the final-form regulations. The Department believes that the regulations should place the burden of encouraging pollution prevention on the Department and that this program functions best when a voluntary approach is used. Recommendations related to pollution prevention activities for permittees are not appropriate for regulation. The language in this section is based on language in recent revisions to Chapter 91 that became effective on January 29, 2000. See 30 Pa.B. 521 (January 29, 2000).
§ 92.2c. Minimum Sewage and Industrial Waste Treatment Requirement.
Subsection (a) was modified to specify that secondary treatment is applicable to all sewage discharges, except sanitary sewer overflows (SSOs) which are prohibited in accordance with § 92.73(8), and combined sewer overflows (CSOs), which need not attain secondary treatment if they implement Department-approved nine minimum controls (NMCs) and a long-term control plan (LTCP).
The phrase ''after direct application or encouragement of pollution prevention approaches, including in-process recycling and reuse'' was deleted in subsection (b)(4) to be consistent with the changes to § 92.2b, relating to pollution prevention. Additionally, subsection (b)(4) was changed to reference and clarify the applicability of provisions for quality standards and oil-bearing wastewater to NPDES discharges.
A new subsection (c), providing a cross reference to § 95.2 (relating to quality standards and oil-bearing wastewaters) has been added to the final-form regulations. This change was not included in the proposed rulemaking.
§ 92.2d. Technology-based standards.
Paragraph (3)(i)(C) is modified in the final-form regulations by deleting the phrase ''other pollution prevention approaches'' to be consistent with the changes made to § 92.2b discussed previously.
Some commentators supported the retention of 0.5 mg/l effluent limitation for discharges of total residual chlorine while others felt the regulations were too stringent and suggested a lesser residual chlorine limit. Others objected to the dechlorination provisions in paragraph (3)(iii) in special protection waters. These provisions were modified in the final-form regulations as a result of terminology changes in the Department's antidegradation regulations in § 93.4c(b)(1)(iii).
There were objections to the transfer of provisions from Chapter 97 to Chapter 92 regarding oils creating a sheen. These provisions were determined to apply to both NPDES and non-NPDES discharges and were consequently moved to Chapter 95 in the final-form regulations. A reference to § 95.2 was added to paragraph (4) of the final-form regulations. Comments were received in support of this change.
§ 92.4. Exclusions from Permit Requirements.
There was a request that natural gas and oil producing activities receive a permit exemption because it was asserted that these operations are similar to agricultural and silviculture activities that have such a permit exemption. The exemptions are based on Federal regulations and they do not include oil and gas producing activities. The change was not made.
A commentator objected to the proposed pollution prevention language in subsection (a)(6). The phrase was deleted for reasons described in a response related to § 92.2b. Other clarifying changes were also made to this provision.
§ 92.5a. Concentrated animal feeding operations.
As proposed, this section would have authorized a ''permit by rule'' for CAFOs meeting certain requirements. The Department issued a ''Final Strategy for Meeting Federal Requirements for Controlling the Water Quality Impacts of Concentrated Animal Feeding Operations'' in March 1999. A notice of the availability of that strategy was published at 29 Pa.B. 1439 (March 13, 1999). The strategy does not provide for coverage under a permit by rule. Commentators recommended incorporation of the final strategy into the regulations. Accordingly, the proposed language of § 92.5a was deleted and replaced in the final-form regulations with regulations consistent with the published strategy.
§ 92.6a. Persons required to apply.
The proposed language was supported by one commentator, while another recommended it be changed to require the person with financial control over the operation to be the permittee. This entire provision was deleted in the final-form regulations as unnecessary. The Department will continue to permit persons with point source discharges, which includes owners, operators and others, as appropriate, as it has done for many years.
§ 92.7. New or increased discharges or change of wastestreams.
The final-form regulations replace the word ''director'' with the word ''Department'' for clarity. Commentators objected to the lack of clarity of the phrase ''or which would include any new pollutant not covered by the NPDES permit'' at the end of the last sentence in the section as part of the ANFR. The language has been amended in the final-form regulations to more clearly limit this requirement to those pollutants not identified in a previous permit application.
§ 92.8a. Changes in treatment requirements.
The proposed pollution prevention language in the last sentences of subsections (a) and (b) has been deleted to be consistent with the changes made to § 92.2b.
A commentator asserted that the provisions of subsection (a) are violations of due process protections, more stringent than Federal regulations and beyond the power of the Department. This provision was transferred intact from two other chapters that were previously approved as to form and legality by the Office of the Attorney General. Actions taken under these provisions may be appealable to the Environmental Hearing Board (EHB). The provisions were retained in the final-form regulations.
Commentators expressed concern regarding the proposed 90-day time period to complete an extensive report. They suggested 180 days and opposed the language allowing the Department to unilaterally shorten the time frame without any regulatory restraints or procedures. Subsection (b) has been modified in the final-form regulations rule to increase the time allowed for submission of the required report from 90 to 180 days. In addition, the phrase ''or within a lesser period as the Department may specify'' was deleted. The last part of the following sentence was also changed to ensure consistency with a previous reference in the sentence to water quality standards by inserting the word ''standards'' following the phrase ''water quality.''
A commentator was concerned that this section did not include authority to impose permit modifications with compliance schedules. Subsection (c) was modified in the final-form regulations to add a phrase that provides the option of imposing permit modifications with compliance schedules to achieve compliance.
§ 92.11. Duration of standards for certain new sources.
A commentator suggested the more stringent standard of performance be for the lesser of 10 years or during the depreciation period. This suggested change was not made because this regulation is based on Federal regulatory requirements.
Proposed rulemaking included a deletion of the phrase ''standards of performance shall'' and insertion of the phrase ''requirements will'' in lieu thereof. The final-form regulations reestablishes the original language based on comments opposing the new language as unclear.
§ 92.13. Reissuance or renewal of permits.
With respect to subsection (a), commentators expressed concern that the Department's Money-Back Guarantee time limits are inconsistent with the regulatory permit review limits. The Money-Back Guarantee does not influence the Department's ability to process permits in a shorter time frame. No changes were made to this section.
Some commentators suggested that recent case law would require incorporation of a broad compliance review for all permitting activities. The scope of the compliance evaluation in subsection (b)(1) was expanded in the final-form regulations to include all Department issued permits, regulations and orders. A reference to other appropriate regulations was included at the end of the subsection to allow consideration of compliance schedules outside of the requirements of Chapter 92.
§ 92.21. Applications.
Some commentators requested the reinsertion of the phrase ''not less than'' in the final-form regulations to eliminate a perception that the proposed language required submittal at exactly 180 days. The recommended phrase has been reinserted in the final rule to provide clarity. Other commentators expressed concern that the time limits in the regulation were inconsistent with Department's Money-Back Guarantee. No change was made because the Money-Back Guarantee does not impact the Department's ability to process applications in a shorter period of time.
Based on comments received, a new paragraph (5) is added in the final-form regulations which includes a requirement for documentation that the applicant is in compliance with all existing Department permits, regulations, orders and schedules of compliance, consistent with similar changes made in § 92.13 (relating to reissuance or renewal of permits). Commentators suggested requiring the newspaper publication in subsection (b)(3) only for major modifications of the facility. No change was made because The Clean Streams Law requires this.
Subsection (c)(2) was deleted in the final-form regulations to be consistent with the revisions made to § 92.2b (relating to pollution prevention).
Comments on subsection (c) stated that some of the required information for a new facility application is generally available only after the commencement of a discharge, not when an application for a facility is being prepared. Accordingly, the provisions of subsection (c)(3)--(5) were transferred to a new subsection (d) which states that the Department may require an applicant for a modification, renewal or reissuance of a permit under § 92.13, or when required under 40 CFR Part 122 to provide this information. In addition, proposed subsection (c)(6) is renumbered as subsection (c)(2) and proposed subsections (d)--(f) are renumbered as subsections (e)--(g).
§ 92.21a. Additional application requirements for classes of discharges.
A commentator requested that the provisions related to the determination that aquatic communities are excluded be clarified. Subsection (e) has been modified in the final-form regulations to state that water quality data confirming a lack of improvement will be the measure of the exclusion of aquatic communities.
Subsection (d) is clarified to cross reference the requirements in Chapter 102 for stormwater dischargers associated with construction activities.
Subsection (e)(2)(iii) is revised by providing a cross reference to the definition of ''TMDL'' in § 96.1 to provide clarity.
Proposed language in subsection (f) relating to discharges with approved pretreatment programs was deleted in the final rule. Subsections (g) and (h) of the proposal were renumbered as subsections (f) and (g) respectively.
Commentators stated that the elimination of CSOs is impossible, that the time required is too extensive to make this requirement a prerequisite to a permit renewal, that identifying all points of influent is impossible, and that elimination should only be required where the discharge will not meet water quality based effluent limitations. Subsection (f) of the final-form regulations includes provisions to allow for submitting a long-term control plan to ''minimize'' or ''eliminate'' CSO discharges. These changes are consistent with Department's published CSO Strategy. Additional revisions delete proposed subsections (g)(3)(i)--(v) and, in lieu thereof, reference a Federal publication rather than listing its content in summary in the regulations. Subparagrah (vi) was renumbered (ii) and a requirement for an implementation schedule was added to the final-form regulations (third element of an approvable CSO program). The provisions relating to the identification of points of inflow into combined sewers is retained in the final-form regulations. This activity is a necessary part of compliance with the nine minimum controls related to the minimization or elimination of CSOs.
Editorial changes were made to subsection (h) (now (g)) in the final-form regulations.
§ 92.22. Application fees.
A new subsection (f) was added to provide an exemption from permit fees for certain CAFOs consistent with the Department's CAFO Strategy. Existing subsection (f) was renumbered as (g).
§ 92.25. Incomplete applications or notice of intent.
A minor editorial change to the proposal is made. The proposal references a notice of intent ''to participate in'' an NPDES general permit. The phrase ''participate in'' is replaced with ''be covered by'' since that is a more accurate description of the general permit process.
§ 92.31. Effluent limitations or standards.
An editorial change was made to subsection (a). Subsection (a)(9) was added to cross reference water quality protection requirements in Chapter 96 and subsection (a)(10) was added to cross reference antidegradation requirements.
§ 92.41. Monitoring.
A number of commentators objected to the addition of proposed subsection (b), asserting that the provisions allow arbitrary requirements and time limits to be set by the Department. The proposed subsection was proposed for deletion in the ANFR. After reconsideration, this language was rewritten to eliminate those portions of the provision on which objections were received. References to requests for additional information by the Department, which were perceived as arbitrary were deleted, and provisions retained which establish monitoring and reporting requirements to be incorporated in permit documents. The last two sentences of proposed subsection (b) (relating to monitoring pollutants not limited in the permit) are deleted in the final-form regulations. Commentators asserted that these provisions were overly broad, inconsistent with Federal requirements or not in the spirit of the RBI.
The amendments to subsections (c) and (g) make it clear that the monitoring requirements of subsection (g) also apply to stormwater discharges associated with construction activities and that subsection (c) is not applicable to stormwater discharges associated with industrial activity. No comments were received on this change. The proposed change is retained in the final-form regulations.
§ 92.51. Standard conditions in permits.
Some commentators suggested that the language in proposed paragraph (6) was confusing and should be simplified to say that compliance with all water quality standards is required. The proposed subsection was clarified in the ANFR by breaking it up into two sentences. Additional comments were received asserting that the changes made the provisions less clear. The final-form regulations incorporate the provisions into a single sentence and retains language that is consistent with the intent of the original regulation. A new paragraph (7) was added to the final-form regulations in response to comments to clearly state that dischargers must comply with applicable water quality standards.
§ 92.52a. Site specific permit conditions.
The final-form regulations delete the last sentence proposing pollution prevention measures. This change is consistent with the position described in response to comments made on § 92.2b. Commentators stated that the proposed provisions were too broad and that BMPs should be established through the regulatory process. The final-form regulations includes a provision that requires permittees to identify BMPs reasonably necessary to achieve effluent limitations and standards or to carry out the purpose and intent of the Federal Act (the Clean Water Act) and to implement toxic reduction activities, effluent limitations based on WETT and other measures which eliminate or substantially reduce pollutants at their source. These final-form regulations provide the permittee with the opportunity to take an active role in establishing sufficient BMPs to achieve protection of surface waters.
§ 92.61. Public notice of permit application and public hearing.
WRAC recommended that the Department seek public comment on the need for an additional public notice when an NPDES application is renewed or when an applicant intends to apply for an NPDES permit, before an application is completed. Comments on this issue ranged from support for the notice of intent to support for no additional public notice. The Department believes the existing requirements for public notice are sufficient and no change has been made in the final-form regulations.
A new subsection (a)(9) was added to cross reference regulations promulgated at 29 Pa.B. 3720 (July 17, 1999) which provide that the notice shall include the antidegradation classification of the receiving surface water.
§ 92.71a. Transfer of permit.
Based on comments received regarding the need to include compliance evaluations as a part of permit actions, a new paragraph (4) has been added to the final-form regulations that requires compliance with all Department permits prior to approval of permit transfers.
§ 92.72a. Cessation of discharge.
Commentators stated that the 180-day notice should be reduced to 90 days to be consistent with State mandated notification requirements. The final-form regulations establishes the 90-day notification requirement.
§ 92.73. Prohibition of certain discharges.
This section is revised to provide that a permit will not be issued, modified, renewed or reissued under any of the conditions enumerated.
Paragraph (8) of the proposal provided that a permit will not be issued to a ''discharger with a sanitary sewer overflow unless the discharger can demonstrate that it is taking measures to eliminate any overflows as soon as practicable, including, but not limited to a complete evaluation of the sanitary sewer system, the reduction of infiltration and inflow into the sanitary sewer system, the elimination of illegal hookups to the system, the institution of a ban or prohibition on sewer hookups to the sanitary sewer, and any other measures which will eliminate the overflows.'' The quoted portion of this subsection was deleted in the final rule because it is inconsistent with applicable State and Federal policy. The final-form regulations states that a permit will not be issued for a sanitary sewer overflow, except as provided for in the Federal regulations.
§ 92.81. General NPDES permits.
A large number of commentators objected to the proposed revisions to subsection (a)(5) because of a perception that this provision would allow discharge of toxic substances under a general permit. While the Department had no such intent when these amendments were drafted, the existing language prohibiting issuance of an NPDES general permit for the discharges has been reinstated in the final-form regulations.
Subsection (a)(8) of the proposal would have authorized issuance of a general permit for discharges to High Quality Waters, but not to Exceptional Value Waters. A large number of commentators objected to this provision at proposed rulemaking. Accordingly, as part of the ANFR it was proposed to reinstate existing language that prohibits the issuance of general NPDES permits for activities in High Quality Waters. In response to the ANFR, the Department received a very large number of comments on both sides of this issue. The final-form regulations retain the reinstated (or existing) language prohibiting the issuance of general permits in High Quality Waters. This provision supports the Department's overriding State interest in the protection of High Quality Waters and in the provision of a broad opportunity for public comment when permit applications are received for facilities proposed in these watersheds. In addition, a recently developed individual NPDES permit for existing CAFOs in High Quality Waters clearly demonstrates the ability to create a simplified permit application process under the individual NPDES regulations while protecting the environment. A conforming change was made in § 92.83(b)(9) (relating to denial of coverage under a general NPDES permit).
The Board received comments objecting to the proposed deletion of a provision that general NPDES permits are to comply with of §§ 92.59 and 92.83(a)(1) (relating to documentation of permit conditions; and inclusion of individual discharges in general NPDES permits) that dischargers ''certify'' rather than ''demonstrate'' that the discharge will not result in a violation of an applicable water quality standard. Accordingly, the reference to § 92.59 was reinstated in § 92.81(b) and the existing term ''demonstrate'' reinserted in lieu of ''certify'' in § 92.83(a)(1) in the final-form regulations.
Some commentators opposed the proposed revisions to subsections (c) and (d) because they believed some of the options eliminated the opportunity for public comment. Two subsections proposed the inclusion of language from the Federal regulations that would have allowed discharges to commence: (1) on a date specified in the general permit; and (2) upon receipt of the notice of intent by the Department. These proposals have been deleted in the final-form regulations because they create circumstances that would make it impossible for the Department to keep a record of these discharges and they would have provided no opportunity for public comment. In addition, the proposal provided that a discharge under a general NPDES permit would be authorized after a waiting period specified in the general permit. This provision is retained, but clarifying language is added stating that the discharge may only commence following receipt of a Notice of Intent (NOI) by the Department. In addition, the provision authorizing the commencement of discharges ''upon receipt of the notification of inclusion by the Department'' is revised in the final rule to provide that the discharge may commence upon receipt of notification of approval of coverage under the general NPDES permit from the Department. Subsection (d) of the proposal relating to when an NOI would not be required was deleted in the final-form regulations for the same reasons outlined. Proposed subsection (e) was renumbered as subsection (d).
Commentators questioned the need for proposed subsection (e). This section was modified as subsection (d) in the final-from regulations to provide that the Department ''will'' notify a discharger that it is ''or is not'' covered under a general NPDES permit. In addition, the clause, ''even if the discharger has not submitted a notice of intent to be covered'' was deleted.
§ 92.83. Inclusion of individual dischargers in general NPDES permits.
Subsection (a)(3)(iii) has been deleted because it would have, consistent with the approach allowed under the Federal regulations, authorized the Department to provide no public notice of applications for general permits or approvals of coverage. This provision was not carried forward in the final-form regulations because it did not allow for sufficient public notice. Subsection (a)(1) was amended to clarify applicable requirements for NOIs.
A number of commentators commented that the EHB recently issued a ruling stating that compliance history review is not limited to prior NPDES permits, but to all permits issued by the Department. A commentator also asserted that the list of items to be considered was inconsistent with The Clean Streams Law. Accordingly, subsection (b) was revised to include violations of Department-issued permit as grounds for denial of the general permit coverage and to reference the entire list of items to be considered under The Clean Streams Law. The remainder of the subsection was renumbered.
§ 92.92. Method of seeking civil penalty.
A commentator objected to the regulation on the basis that it removes a right to a prehearing for alleged violations. A discussion of the due process protections provided by the procedures established in the regulation is provided in the comment and response document.
§ 92.93. Procedure for civil penalty assessments.
There were several comments requesting clarifying language regarding delivery of notices, the specifics of the hearing procedure, the scheduling of hearings, posting notice, and provision of notice from the Department concerning EHB rules of practice. A change was made in the final rule to subsection (c) regarding the posting of notice. An explanation is provided in the comment and response document regarding the remaining comments.
Also in subsection (c), a clause is added clarifying that a person requesting a hearing has a right to be represented by counsel, and a change is made providing that the Department need not make a decision at the hearing.
§ 92.94. Disbursement of funds pending resolution of appeal.
Subsection (a) of the final-form regulations has been modified to replace the word ''law'' with ''section 605 of The Clean Streams Law (35 P. S. § 691.605).''
A commentator stated that preclusion of permit issuance should only be imposed on a specific facility when a company has more than one facility in this Commonwealth. This provision is not mandatory and would be imposed only when there is a continued pattern of failure to pay final assessments. No change was made in the final-form regulations.
Chapter 93. Water Quality Standards Section 93.4. Statewide water uses.
WWF (warm water fishes) has been reinserted in Table 2 as the default aquatic life protection because several comments made the point that there would be no default aquatic life protection of waters inadvertently not listed in the chapter.
Many comments addressed the question of retaining the Statewide potable water supply use, some offering distinct reasons why it should be eliminated, but many others expressing support for keeping it. The use is retained without change.
A few comments suggested that the aesthetic water quality criteria for manganese and dissolved iron be applied at the point of potable water intake, as are other aesthetic criteria, under § 96.3 (relating to general water quality). The Department will analyze the impacts/benefits of this issue as part of its next triennial review of water quality standards.
A few comments were directed toward the Department adopting amended wildlife protection and protection of hydrologic regimes and habitat. At this time, there is no National guidance to assist the Department in moving forward with changes to wildlife protection. The Department is working with the Fish and Boat Commission on new habitat and stream flow criteria development, but it is premature to make changes at this time. These issues are all likely to be considered in future water quality standards reviews.
Section 93.7. Specific water quality criteria.
Comments concerning Table 3 included the following:
Alkalinity--The site-specific exception to the alkalinity criterion was reinserted because it was noted that many of this Commonwealth's streams may naturally violate the criterion, and without the exception, there would have to be regulation changes made for a very large number of site-specific criteria to amend the listings in §§ 93.9a--93.9z if the language were removed.
Aluminum--In the proposal, the aluminum criterion was amended and moved to Table 1, Chapter 16--Water Quality Toxics Management Strategy--Statement of Policy, where other water quality criteria for toxics are listed. The EPA and others commented that there was not adequate justification for the Commonwealth to not also adopt the chronic criterion. The Department believes that the chronic criterion of 87 µg/l should not be adopted because it is based on chronic toxicity test results that show inconsistencies within tests and between studies. The chronic studies described in the EPA's 1988 Ambient Water Quality Criteria for Aluminum document do not show a consistent pattern of toxicological response to the different exposure concentrations within or between the various tests described. The final chronic value developed following the EPA's procedures and based on available acute-chronic ratios is 750 µg/l, the same value as the acute criterion. However, the EPA then lowered the final chronic value to 87 µg/l, claiming it to be necessary to protect brook trout and striped bass. The EPA's justification for this adjustment was data derived from studies that the EPA later described as data that should not be used in the criteria development. The EPA staff have agreed that the aluminum toxicity is very complex due, in part, to the complexity of its chemistry and interactions with local water quality conditions and biological community. The EPA also agrees that the studies that were used in driving the derivation of the chronic criterion are limited in their application and should receive additional review. The Department cannot adopt the flawed chronic criterion for use in this Commonwealth without better justification. As recently as December 1999, the EPA reiterated that aluminum criteria issues are not a priority for the agency. Therefore, the Department believes that aluminum toxicity to fish and aquatic life will be adequately managed using the acute criterion of 750 µg/l. The Department will also continue to monitor the scientific literature and the EPA's evaluations of aluminum toxicity and amend the criterion or add a chronic criterion, if indicated. The criterion is unchanged from the proposal.
Ammonia--The ammonia criteria is not changed to match the new the EPA criteria finalized in December 1999, but will be considered in the next Triennial Review.
Bacteria--In response to an EPA comment, language is added to Bac1 which limits to no more than 10% the samples that may exceed 400 fecal coliform per 100 ml in a 30-day period for the criteria to be attained.
DO (dissolved oxygen)--The language for DO3 (for trout stocking fishes (TSF)) is clarified to state that the criteria for lakes, ponds and impoundments apply to the epilimnion in response to a comment.
Phenolics--To respond to comments expressing concern for protecting water supplies, the Statewide criterion for phenolics (Phen - 0.005 mg/l) is retained. This criterion is applied under new § 96.3(d).
Temperature--Language inadvertently struck from the new listing of temperature criteria in the proposal was reinserted to assure protection of aquatic life. The language states that in addition to the temperature criteria, wastes may not cause more than a 2°F rise in temperature in any 1-hour period.
Subsection (e), which was proposed to be deleted, is reinserted as (b) and the accompanying table is renamed Table 4 in response to comments that pointed out that the Table provides a ready reference to the criteria applicable to aquatic life uses, including High Quality and Exceptional Value Waters. The table has been modified to acknowledge the removal of the list of Statewide criteria (former Table 4) and the numbering change to DO criteria.
Accordingly, numbering changes are made to the remaining subsections. Subsection (c) is amended to the original language that provides that additional criteria will (not may as proposed) be developed using best scientific information. New subsection (d) is clarified to state that when the Department determines that the natural quality of a surface water is lower than the applicable aquatic life water quality criterion, the natural quality will become the aquatic life criterion for that segment following public notice and comment.
Section 93.9. Designated water uses and water quality criteria.
Section 93.9e (relating to Drainage List E) is modified to correct the turbidity criteria symbols from Tur 3 and 4 to Tur 1 and 2. The change is not substantive.
In § 93.9o (relating to Drainage List O), several comments on the proposal and ANFR addressed the issue of the color criterion for the Codorus Creek in York County. Some comments gave lengthy reasons why 50 pcu was the appropriate criterion and should remain in place, and others questioned the scientific basis for that criterion, stating the Statewide criterion should apply. Following consideration of all the comments, the site-specific color criterion for the Main Stem, Codorus Creek in York County is removed and the Statewide color criterion (75 platinum cobalt units) will apply to the stream. When it is achieved, the criterion will enhance water quality in the stream.
In § 93.9p (relating to Drainage List P), an error for Tunungwant Creek in McKean County, which deleted the water contact sport use (WC) for the main stem from the confluence of the East and West Branches to the PA-NY State border, has been corrected. The Department conducted a use attainability study in 1985 which supported the correction and the water contact sports use was added as a designated use at the November 15, 1988, Board meeting, and published at 17 Pa.B. 968 (March 11, 1989). This regulatory revision was not, however, incorporated into the Pennsylvania Code until now.
Chapter 95. Wastewater Treatment Requirements Section 95.1 (relating to special protections), which has recently been amended at 29 Pa.B. 3720 (July 17, 1999) is deleted as unnecessary in light of the inclusion of the language in § 92.2a(a).
Commentators objected to the incorporation of provisions in § 97.15 into § 95.2 of the final-from regulations. These provisions incorporate quality standards for industrial wastes including the prohibition of discharges that are acid, a pH requirement and an iron limit of no more than 7 milligrams per liter of dissolved iron. These provisions were retained in the final-form regulations as necessary to protect water quality from pollutants not regulated as point sources under the NPDES regulations.
Commentators objected to the elimination of §§ 95.4 and 95.5 from proposed rulemaking. This error occurred at the Legislative Reference Bureau, and was corrected at 28 Pa.B. 577 (November 7, 1998).
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