PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
[25 PA. CODE CH. 93]
Great Lakes Initiative
[32 Pa.B. 427] The Environmental Quality Board (Board) proposes to amend Chapter 93 (relating to water quality standards) to read as set forth in Annex A. The proposed amendment incorporates Federal requirements concerning prohibitions and phasing out of mixing zones for bioaccumulative chemicals of concern (BCCs) in waters of the Great Lakes System.
This proposal was adopted by Board order at its meeting of November 20, 2001.
A. Effective Date
This proposed amendment is effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information contact Edward R. Brezina, Chief, Division of Water Quality Assessment and Standards, Bureau of Water Supply and Wastewater Management, 11th Floor, Rachel Carson State Office Building, P. O. Box 8467, Harrisburg, PA 17105-8467, (717) 787-9637 or Michelle Moses, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060.
Information regarding submitting comments on this proposal appears in Section J of this Preamble. 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. This proposal is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
This proposed amendment is made under the authority of sections 5(b)(l) and 402 of The Clean Streams Law (35 P. S. §§ 691.5(b)(l) and 691.402), which authorize the Board to develop and adopt rules and regulations to implement The Clean Streams Law, and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20), which grants the Board the power and duty to formulate, adopt and promulgate rules and regulations for the proper performance of the work of the Department.
D. Background and Purpose of the Amendment
The purpose of this proposal is to revise existing water quality regulations in Chapter 93. The Great Lakes Initiative (GLI) requirements were promulgated in 40 CFR Part 132 (relating to water quality guidance for the Great Lakes System) at 60 FR 15366 (March 23, 1995) to provide for consistent protection of the Great Lakes System. The Commonwealth promulgated the regulations for waters in this Commonwealth which are in the Great Lakes System on December 27, 1997, and the Environmental Protection Agency (EPA) approved the regulations on March 17, 2000.
The EPA had promulgated a mixing zone provision as part of the regulation, but the provision was vacated by the United States Court of Appeals for the District of Columbia Circuit in the case of American Iron & Steel Institute v. EPA, 115 F.3d 979 (D.C. Cir. 1997), and was remanded to the EPA for further consideration. In response to the Court's remand, the EPA published a proposal on October 4, 1999, to amend the guidance to reinstate the provision to prohibit mixing zones for BCCs (64 FR 53632). The EPA promulgated the final rule to amend Appendix F, Procedure 3.C of 40 CFR Part 132 to prohibit mixing zones for BCCs in the Great Lakes System, subject to certain exceptions for existing discharges, by publication at 65 FR 67638 (November 13, 2000). The proposed regulatory amendment to Chapter 93 provides consistency with the Federal guidance for the Great Lakes System by eliminating opportunity for the use of mixing areas for discharges of toxic and persistent chemicals known as BCCs. Examples of BCCs are mercury and dioxin. BCCs in the waters of the Great Lakes are not flushed from the system but build up for long periods of time, allowing aquatic organisms to accumulate and magnify the pollutants. Animals and humans who consume the fish are subject to increased loadings of these toxic pollutants. This proposed rulemaking eliminates the use of mixing areas in calculating allowable discharge limits for BCCs, thereby lessening loadings to the Great Lakes System.
For existing discharges to waters of the Great Lakes System, the regulation prohibits mixing zones for BCCs after November 15, 2010. New discharges of BCCs to waters of the Great Lakes System are subject to the mixing zone prohibition when the EPA approves the state's submission of these regulations. The three Great Lakes states, including this Commonwealth (the other two states are Ohio and New York), which did not include the BCC mixing zone provision in their regulation, are required to submit amended regulations for the EPA approval by May 13, 2002.
The Water Resources Advisory Committee supported the draft amendment at its October 18, 2001, meeting. No issues were raised during the discussion.
E. Summary of Regulatory Revisions
This proposed regulatory revision removes the exclusion of Appendix F, Procedure 3, Subpart C (relating to mixing zones for bioaccumulative chemicals of concern) contained in § 93.8a(j)(2) (relating to toxic substances) from the GLI requirements. This proposed amendment adds Subpart C of Procedure 3 to the other requirements that were incorporated by reference from the Federal regulation in the current regulation. The proposed amendment will make the Commonwealth's GLI as protective as the Federal requirement.
F. Benefits, Costs, and Compliance
Executive Order 1996-1 provides for a cost/benefit analysis of the proposed amendment.
Benefits
Overall, the citizens of this Commonwealth will benefit from the recommended change because it provides the appropriate level of protection of the waters in the Great Lakes System. The revision also assures compliance with the applicable Federal requirements.
Compliance Costs
The proposed amendment is not expected to impose any significant additional compliance costs on the regulated community. No current NPDES permits provide for discharges of BCCs to the Great Lakes System in this Commonwealth. For this reason, no costs associated with phase out of mixing provisions need to be addressed. New discharges would have to meet the requirement when discharging commences, but there is no way of knowing if or when these discharges will be proposed.
Compliance Assistance Plan
The proposed amendment adds a requirement that, in practice, will only be applicable if there are new discharges of BCCs to waters of the Great Lakes System. The requirement is straightforward and will not require implementation guidance. Staff are available to assist regulated entities in complying with the regulatory requirements if any questions arise.
Paperwork Requirements
This proposed rulemaking should have no significant paperwork impact on the Commonwealth, its political subdivisions or the private sector.
G. Pollution Prevention
In keeping with Governor Schweiker's interest in encouraging pollution prevention solutions to environmental problems, this proposed amendment specifically provides for prevention of additional loadings of BCCs to the water environment by requiring that the addition of these substances be significantly limited, even beyond that necessary to meet water quality standards.
H. Sunset Review
This amendment will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended. In addition, water quality standards are required to be reviewed by the Department at least once every 3 years, with the results of the review to be submitted to the EPA.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 11, 2002, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendment, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department in compliance with Executive Order 1996-1, ''Regulatory Review and Promulgation.'' A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed amendment, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria which have not been met by that portion to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the amendment, by the Department, the Governor and the General Assembly.
J. Public Comments
Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendment to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 15th Floor, 400 Market Street, Harrisburg, PA 17101-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by March 12, 2002. Interested persons may also submit a summary of their comments to the Board. The summary may not exceed one page in length and must also be received by March 12, 2002. The one-page summary will be provided to each member of the Board in the agenda packet distributed prior to the meeting at which the final regulation will be considered.
Electronic Comments--Comments may be submitted electronically to the Board at RegComments@state.pa.us and must also be received by the Board by March 12, 2002. A subject heading of the proposal and a return name and address must be included in each transmission.
DAVID E. HESS,
ChairpersonFiscal Note: 7-374. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF
NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 93. WATER QUALITY STANDARDS § 93.8a. Toxic substances.
* * * * * (j) The requirements for discharges to and antidegradation requirements for the Great Lakes System are as follows[.]:
* * * * * (2) Total Maximum Daily Loads (TMDLs). TMDLs for Open Waters of the Great Lakes shall be derived following the procedures in 40 CFR Part 132, Appendix F, Procedure 3, Subpart D (relating to Great Lakes Water Quality Initiative implementation procedures), including all other subparts referenced in Subpart D[, except Subpart C].
[Pa.B. Doc. No. 02-137. Filed for public inspection January 25, 2002, 9:00 a.m.]
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