PROPOSED RULEMAKING
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CH. 93]
Water Quality Standards—Site-Specific Water Quality Criteria
[53 Pa.B. 6854]
[Saturday, November 4, 2023]The Environmental Quality Board (Board) proposes to amend Chapter 93 (relating to water quality standards). The amendments propose revisions to § 93.8d (relating to development of site-specific water quality criteria) and the replacement of a total mercury water quality criterion with a site-specific methylmercury criterion for Ebaughs Creek in § 93.9o (relating to Drainage List O) as set forth in Annex A.
This proposed rulemaking was adopted by the Board at its meeting of July 11, 2023.
A. Effective Date
This proposed rulemaking will be effective upon final-form publication in the Pennsylvania Bulletin. Once approved by the United States Environmental Protection Agency (EPA), water quality standards are used to implement the Federal Clean Water Act (CWA) (33 U.S.C. §§ 1251—1389).
B. Contact Persons
For further information, contact Michael (Josh) Lookenbill, Bureau of Clean Water, 11th Floor, Rachel Carson State Office Building, P.O. Box 8774, 400 Market Street, Harrisburg, PA 17105-8774, (717) 787-9637; or Michelle Moses, Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, P.O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the Pennsylvania Hamilton Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposed rulemaking is available on the Department of Environmental Protection's (Department) web site at www.dep.pa.gov (select ''Public Participation,'' then ''Environmental Quality Board,'' then navigate to the Board meeting of July 11, 2023).
C. Statutory Authority
This proposed rulemaking is authorized under sections 5(b)(1) and 402 of The Clean Streams Law (CSL) (35 P.S. §§ 691.5(b)(1) and 691.402), which authorize the Board to develop and adopt rules and regulations to implement the CSL (35 P.S. §§ 691.1—691.1001), 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. In addition, sections 101(a)(2) and 303 of the CWA (33 U.S.C. §§ 1251(a)(2) and 1313) set forth requirements for water quality standards, which states must meet to implement the CWA in this Commonwealth. Section 101(a)(3) of the CWA declares the National policy that the discharge of toxic pollutants in toxic amounts be prohibited. Section 303(c)(2)(B) directs states to adopt numeric criteria for toxic pollutants if they are present in a discharge that could be reasonably expected to interfere with a state's designated uses and as necessary to support those uses.
D. Background and Purpose
Water quality standards are in-stream water quality goals that are implemented by imposing specific regulatory requirements (such as treatment requirements, effluent limits and best management practices) on individual sources of pollution. The water quality standards include the existing and designated uses of the surface waters of this Commonwealth, along with the specific numeric and narrative criteria necessary to achieve and maintain those uses, and antidegradation requirements.
The purpose and goals of this proposed rulemaking are: to revise the process for requesting, developing and adopting site-specific water quality criteria in § 93.8d; to delete the Statewide total mercury water quality criterion of 0.05 micrograms per liter (µg/L) for Ebaughs Creek; and to add a site-specific dissolved methylmercury water quality criterion of 0.00004 µg/L for Ebaughs Creek in § 93.9o.
Regulations that clearly outline the site-specific criteria development process are critical to ensuring the Department receives the information necessary to determine if site-specific water quality criteria are applicable, to develop site-specific water quality criteria recommendations that are protective of surface water uses, and to incorporate the site-specific criteria into the Commonwealth's water quality standards. The proposed amendments will clarify when site-specific criteria may be requested or developed by the Department's own initiative and how a permit applicant may submit a request. Under § 93.8d(g) of the existing regulations, the Department has the authority to determine whether new Statewide criteria or modifications to Statewide criteria are appropriate. This determination may be based on the Department's initiative or a request by a permittee. The Department has the authority to develop site-specific criteria and Statewide criteria, as needed, to protect the waters of the United States and the surface waters of this Commonwealth. Due to the proposed deletion of § 93.8d(g), § 93.8d(a) is proposed to be amended to include the Department's continuing role to develop site-specific criteria on its own initiative.
Regarding the site-specific methylmercury water quality criterion for Ebaughs Creek, the York County Solid Waste and Refuse Authority (YCSWRA) has requested the Department develop a site-specific methylmercury water quality criterion for Ebaughs Creek, in lieu of applying the Statewide total mercury water quality criterion, to protect human health from the toxic effects of methylmercury and to inform their National Pollutant Discharge Elimination System (NPDES) permit effluent limitations for Outfall 002. Methylmercury is a component of total mercury and represents the most toxic form of mercury to human health. Since the Department does not currently have Statewide numeric water quality criteria for methylmercury, YCSWRA's request satisfies § 93.8d(a)(3).
On March 16, 2023, the Department met with the Water Resources Advisory Committee (WRAC) to present its recommended updates to § 93.8d and the site-specific methylmercury water quality criterion for Ebaughs Creek. WRAC voted to support presentation of this proposed rulemaking to the Board. Additionally, the Department presented draft regulatory amendments to the Agricultural Advisory Board on March 15, 2023, explaining the proposed changes.
E. Summary of Proposed Rulemaking
§ 93.8d. Development of site-specific water quality criteria
The Board proposes to update § 93.8d by revising the site-specific water quality criteria development and adoption process. The proposed amendments in § 93.8d(a) clarify when site-specific water quality criteria may be requested. No significant changes were made to this existing regulation. Subsection (b) requires an applicant to provide information that demonstrates a qualifying factor, under subsection (a), is met and also requires an applicant to show that none of the factors in subsection (a.1) are applicable.
The proposed amendments in subsection (a.1) clarify the conditions under which site-specific water quality criteria may not be requested. Under § 93.8d(a.1)(1), site-specific water quality criteria may not be requested if a pollutant is a cause of nonattainment of the requested waterbody or would otherwise interfere with attainment of protected surface water uses. Under § 93.8d(a.1)(2), an applicant may not request site-specific criteria when there is impairment to the aquatic life use unless the impairment is caused by means other than a pollutant. An applicant may request site-specific criteria when a pollutant, such as sediment, ammonia or iron, is not the cause of an impairment to the aquatic life use. An applicant may request site-specific criteria if, for example, the aquatic life use impairment is caused by flow alterations or habitat modification, which do not involve pollutants. Under § 93.8d(a.1)(3), a site-specific criterion may not be requested for surface waters with an existing or designated use of High Quality Waters (HQ) or Exceptional Value Waters (EV). The existing water quality of HQ or EV waterbodies must be maintained and protected under § 93.4a (relating to antidegradation), and thus, the water quality goals for these waterbodies are already site-specific. All information needed by an applicant to determine whether to make a request for site-specific criteria under subsection (a.1) is publicly available. The applicant's documentation of its determination under subsection (a.1) will be necessary information to provide to the Department under subsection (b). Subsection (b)(5) requires an applicant to provide information that demonstrates a circumstance where a pollutant is not the cause of water use impairments or demonstrates the waterbody is not one with an existing or designated use of HQ or EV.
Subsection (b) identifies the minimum data and information that must be included with an applicant's request for site-specific criteria. The information is necessary to ensure the applicant has evaluated the qualifying factors in subsections (a) and (a.1), with a particular focus on waterbody-specific characteristics. Once an applicant qualifies to proceed with site-specific criteria development, additional data must be submitted and evaluated in accordance with subsections (c) and (c.1).
Once a site-specific water quality criterion is developed and publicly noticed for comment, the Department will prepare a rulemaking for the adoption of the new criterion into Chapter 93. All water quality criteria will be developed through rulemaking and the appropriate rulemaking processes, consistent with the Commonwealth's laws.
Site-specific water quality criteria are used to develop effluent limitations in permits. Given the need for timely permit development, the Department intends to explore all options available for expediting rulemaking procedures to promulgate site-specific water quality criteria while maintaining robust public participation. Although § 93.8d(f)(4) is proposed for deletion, the obligation remains to promulgate site-specific criteria as regulations. The Department intends to enhance its public notices in the Pennsylvania Bulletin to reach a broader audience and will receive and respond to public comments on all draft site-specific water quality criteria. In addition, existing public notification and public participation processes available through the NPDES permitting process outlined in Chapter 92a (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance) will continue.
§ 93.9o. Drainage List O
The YCSWRA owns and operates the York County Sanitary Landfill, which is a 306-acre site located in Hopewell Township, York County. Between 1974 and 1997, the landfill received municipal and industrial waste, which was placed into lined and unlined cells. The site contains approximately 135 acres of unlined landfill. Detection of volatile organic compounds (VOC) in several groundwater wells was discovered in 1983 and was associated with the unlined cells. A treatment system was installed to remove the VOCs and began operation in 1985. The system consisted of 17 extraction wells and air stripping towers. The air stripping towers discharge the treated groundwater to a surface water of this Commonwealth under NPDES permit number PA0081744. Mercury was not known to be present in the discharge when the initial permit was issued. It was later identified as a potential pollutant of concern through the Department's permit renewal application review process.
Mercury is a naturally occurring, widely distributed element that cycles between various forms in the environment through natural processes and human activities with some forms being more toxic than others. Mercury can enter surface waters through multiple pathways, including but not limited to, atmospheric deposition, stormwater runoff generated by precipitation events and NPDES-permitted activities, including treatment systems from contaminated groundwater. Total mercury includes elemental, inorganic and organic forms of mercury. Elemental and inorganic mercury do not contribute significantly to oral toxicity. These forms are poorly absorbed by the human body and do not bioaccumulate in animals if ingested (Agency for Toxic Substances and Disease Registry 1999). Methylmercury, however, has been identified by scientists as one of the most toxic forms of mercury to humans. It is an organic form of mercury that is typically formed in the environment when bacteria capable of methylation are exposed to a source of inorganic or elemental mercury and convert it to methylmercury. Methylmercury in surface waters then enters into the food web of the aquatic ecosystem and bioaccumulates in the aquatic macroinvertebrates and fish. Oral ingestion of mercury by humans occurs almost exclusively through the consumption of contaminated fish and wildlife, and nearly all of the mercury found in animal tissue is in the form of methylmercury. Observed toxicity in humans is also related to exposure amount, exposure pathway and individual susceptibility.
YCSWRA's Outfall 002 discharges treated groundwater into an unnamed tributary to Ebaughs Creek, which is a small first-order tributary (that is, a headwater stream) with limited watershed area. The protected water uses for Ebaughs Creek include Cold Water Fishes, Migratory Fishes (CWF, MF). Based upon the Department's review of the available information, the Department has deter-mined the primary source of mercury to Ebaughs Creek is the YCSWRA NPDES-permitted discharge and not a result of natural processes.
In accordance with § 93.8d, site-specific criteria may be established for the following three reasons: (1) to reflect conditions in a waterbody that differ from the EPA's criteria recommendations for protection of aquatic life, developed under section 304(a) of the CWA (33 U.S.C. § 1314(a)); (2) where necessary to protect more sensitive, intervening water uses as defined in Chapter 93, Table 2; and (3) where numeric criteria are necessary for a substance not currently listed in Chapter 93. Since the Department does not currently have a Statewide numeric water quality criterion for methylmercury, YCSWRA's request satisfies § 93.8d(a)(3).
YCSWRA requested the Department develop a site-specific methylmercury water quality criterion for Ebaughs Creek, in lieu of applying the Statewide total mercury water quality criterion, to inform their NPDES permit effluent limitations for Outfall 002. Methylmercury is a component of total mercury and represents the most toxic form of mercury to human health. The permit effluent limitations developed for YCSWRA will be a translation of the dissolved methylmercury water quality criterion established by this proposed rulemaking expressed as a site-specific total mercury discharge limit, as required under Federal NPDES regulations. These effluent limitations will continue to provide for control of total mercury while ensuring the toxic component, methylmercury, is not exceeded in the surface water or aquatic organisms.
YCSWRA performed a site-specific study for the collection of data necessary to develop a site-specific methylmercury water quality criterion for Ebaughs Creek that would be protective of human health. As required by § 93.8d(d), YCSWRA submitted a study plan to the Department for review, consideration and approval, and the Department approved a study plan.
Under CWA section 304(a), the EPA publishes recommended water quality criteria guidance that consists of scientific information regarding concentrations of specific chemicals or levels of parameters in water that protect aquatic life and human health. The Federal water quality standards regulations require states to review, for adoption, numeric water quality criteria that are based on section 304(a) criteria recommendations developed by the EPA, consider whether to modify section 304(a) criteria recommendations to reflect site-specific conditions, or establish criteria based on other scientifically-defensible methods.
The EPA has published a section 304(a) dissolved methylmercury water quality criterion recommendation for the protection of human health that is a fish-tissue based criterion of 0.3 milligrams per kilograms (mg/kg) (Water Quality Criterion for the Protection of Human Health: Methylmercury, USEPA 823-R-01-001). The EPA supports the adoption of methylmercury water quality criteria for the protection of human health because methylmercury is known to be one of the forms of mercury that is most toxic to humans. States have multiple options when developing and adopting methylmercury criteria, which may include the fish tissue recommendation, a water column criterion value based on the fish tissue recommendation, or both.
The EPA recommends that states adopt water column criteria values if adequate data is available to determine appropriate bioaccumulation factors (BAF). Bioaccumulation is the process of a chemical moving from the external environment (that is, surface water) into an organism. A BAF is a measure of how much a chemical accumulates within an organism. Thus, the Department required YCSWRA to collect fish tissue samples and surface water samples from Ebaughs Creek for the calculation of a site-specific BAF. The site-specific BAF was calculated to be 5.882398 × 10-6 liters per kilogram (L/kg). This BAF along with the human health exposure inputs for body weight, drinking water intake rate and fish consumption rate and the provisions for developing water quality criteria found in Chapters 93 and 16 (relating to water quality toxics management strategy—statement of policy) were used to convert the EPA's fish-tissue-based ambient water quality criterion for methylmercury into a water column criterion. The proposed site-specific dissolved methylmercury criterion for Ebaughs Creek is 0.00004 µg/L. For more information, see the rationale document for Development of a Site-Specific Methylmercury Water Quality Criterion for Ebaughs Creek, attached to the Regulatory Analysis Form.
F. Benefits, Costs and Compliance
Benefits
The regulated community and the public benefit from having regulations that clearly outline the site-specific criteria development process. These proposed amendments will ensure that site-specific water quality criteria are protective of surface water uses. Further, the proposed regulations establish qualifying factors that refine who may request development of criteria and clearly identify information the requestor must submit to develop the numeric criteria. This clarity will improve processing of requests for site-specific criteria. The Department intends to further explore ways to process requests in an efficient and timely manner and to enhance public notice of draft criteria for review and comment.
The site-specific dissolved methylmercury water quality criterion contained in this proposed rulemaking would be specific to Ebaughs Creek. YCSWRA's discharge is currently the only known discharge to Ebaughs Creek containing mercury and YCSWRA would benefit by having a permit with effluent limitations developed based on the proposed site-specific water quality criterion. Likewise, persons proposing a new discharge to Ebaughs Creek may benefit from the methylmercury criterion if mercury is found in a proposed new discharge.
Compliance costs
The proposed amendments to Chapter 93 will not immediately impose any costs on the regulated community. When site-specific criteria are necessary either to protect more sensitive intervening uses than those uses protected by a Statewide criterion or to protect a water use from substances currently lacking numeric criteria in Chapter 93, additional costs may be incurred by persons with NPDES permits. The costs for a permittee would be associated with conducting the required studies to develop the site-specific criteria and implementing the treatment technology necessary to meet the effluent limitations based on the criteria.
In some cases, the adoption of site-specific water quality criteria may result in effluent limitations that are less stringent than those based on Statewide criteria, and therefore, reduce the need for wastewater treatment technologies to remove pollutants, resulting in cost savings for a permittee. Treatment costs are site-specific anddepend upon the size and location of the discharge in relation to the size of the stream and many other factors. Furthermore, requests for site-specific criteria for a variety of pollutants may be initiated by persons with NPDES permits. It is not possible to precisely predict the costs or savings that could be incurred for any existing or new discharges to comply with any future site-specific criteria.
The expenditures necessary to meet new compliance requirements may exceed that which is required under existing regulations, but these proposed amendments are necessary to ensure existing and designated uses of surface waters of this Commonwealth are afforded the appropriate level of protection and to improve pollution control.
The proposed amendments to § 93.9o for Ebaughs Creek are specific to that waterbody. Furthermore, the proposed site-specific dissolved methylmercury water quality criterion for Ebaughs Creek would be applicable only to YCSWRA, and therefore, YCSWRA would be the only affected party. The proposed amendments will be implemented through the Department's permit and approval actions.
Compliance assistance plan
Surface waters of this Commonwealth are afforded a minimum level of protection through compliance with the water quality standards, including site-specific water quality criteria, which prevent pollution and protect existing and designated surface water uses.
The proposed amendments will be implemented through the Department's permit and approval actions. For example, the NPDES permitting program establishes effluent limitations based on the existing and designated protected water uses of the stream, and the water quality criteria developed to maintain those uses. These effluent limits are established to assure water quality is protected and maintained. Site-specific water quality criteria are protective of the water uses and are implemented in the same manner as Statewide water quality criteria.
Paperwork requirements
This proposed rulemaking should have no new direct paperwork impact on the Commonwealth, local governments and political subdivisions or the private sector. This proposed rulemaking would be implemented in accordance with existing Department regulations. A process to develop site-specific water quality criteria has been in effect for several decades. The proposed regulations refine the qualifying factors and criteria development studies that apply to a request for site-specific criteria; however, the overall paperwork impact will not change.
G. Pollution Prevention
The Federal Pollution Prevention Act of 1990 (42 U.S.C. §§ 13101—13109) established a National policy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The Department encourages pollution prevention, which is the reduction or elimination of pollution at its source, through the substitution of environmentally friendly materials, more efficient use of raw materials, and the incorporation of energy efficiency strategies. Pollution prevention practices can provide greater environmental protection with greater efficiency because they can result in significant cost savings to facilities that permanently achieve or move beyond compliance.
Water quality standards are a major pollution prevention tool because they protect water quality and designated and existing uses of surface waters. The proposed amendments would be implemented through the Department's permit and approval actions. For example, the NPDES program will establish the more stringent of technology-based or water quality-based effluent limitations in permits. Water quality-based effluent limitations are determined by the existing and designated uses of the receiving stream and the water quality criteria necessary to protect those water uses. Site-specific water quality criteria are protective of the water uses and are implemented in the same manner as Statewide water quality criteria.
H. Sunset Review
The Board is not proposing to establish a sunset date for this proposed regulation because it is needed for the Department to carry out its statutory authority. The Department will continue to closely monitor this proposed regulation for its effectiveness and recommend updates to the Board as necessary.
I. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on October 17, 2023, the Department submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the House and Senate Environmental Resources and Energy Committees. A copy of this material is available to the public upon request.
Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections must specify the regulatory review criteria in section 5.2 of the Regulatory Review Act (71 P.S. § 745.5b) which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Department, the General Assembly and the Governor.
J. Public Comments
Interested persons are invited to submit to the Board written comments, suggestions, support or objections regarding this proposed rulemaking. Comments, suggestions, support or objections must be received by the Board by December 19, 2023.
Comments may be submitted to the Board online, by e-mail, by mail or express mail as follows.
Comments may be submitted to the Board by accessing eComment at http://www.ahs.dep.pa.gov/eComment.
Comments may be submitted to the Board by e-mail at RegComments@pa.gov. A subject heading of this proposed rulemaking and a return name and address must be included in each transmission.
If an acknowledgement of comments submitted online or by e-mail is not received by the sender within 2 working days, the comments should be retransmitted to the Board to ensure receipt. Comments submitted by facsimile will not be accepted.
Written comments should be mailed to the Environmental Quality Board, P.O. Box 8477, Harrisburg, PA 17105-8477. Express mail should be sent to the Environmental Quality Board, Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17101-2301.
K. Public Hearing
The Board will hold a virtual public hearing for the purpose of accepting comments on this proposed rulemaking. The hearing will be held at 1 p.m. on December 5, 2023.
Persons wishing to present testimony at this hearing must contact Casey Damicantonio for the Department and the Board, (717) 783-8727 or RA-EPEQB@pa.gov, at least 1 week in advance of the hearing to reserve a time to present testimony. Language interpretation services are available upon request. Persons in need of language interpretation services must contact Casey Damicantonio by 5 p.m. on November 28, 2023.
Oral testimony is limited to 5 minutes for each witness. Organizations are limited to designating one witness to present testimony on their behalf at the hearing. Witnesses may provide testimony by means of telephone or Internet connection. Video demonstrations and screen sharing by witnesses will not be permitted.
Witnesses are requested to submit a written copy of their verbal testimony by e-mail to RegComments@pa.gov after providing testimony at the hearing.
Information on how to access the virtual public hearing will be available on the Board's webpage found through the Public Participation tab on the Department's web site at www.dep.pa.gov (select ''Public Participation,'' then ''Environmental Quality Board''). Prior to a hearing, individuals are encouraged to visit the Board's webpage for the most current information for accessing the hearing.
Members of the public wishing to observe a virtual public hearing without providing testimony are also directed to access the Board's webpage.
Persons in need of accommodations as provided for in the Americans with Disabilities Act of 1990 should contact the Board at (717) 783-8727 or through the Pennsylvania Hamilton Relay Service at (800) 654-5984 (TDD) or (800) 654-5988 (voice users) to discuss how the Board may accommodate their needs.
JESSICA SHIRLEY,
Interim Acting ChairpersonFiscal Note: 7-571. No fiscal impact; 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
WATER QUALITY CRITERIA § 93.8d. Development of site-specific water quality criteria.
(a) The Department will consider a request for site-specific criteria, or the Department may develop site-specific criteria on its own initiative, when one or more of the following apply:
(1) There exist site-specific biological or chemical conditions of [receiving waters] the waterbody or waterbody segment which differ from conditions upon which the aquatic life water quality criteria were based.
(2) More stringent criteria are needed for a [parameter] pollutant listed in § 93.7, Table 3 (relating to specific water quality criteria) or § 93.8c, Table 5 (relating to human health and aquatic life criteria for toxic substances) regarding water quality criteria for toxic substances to protect more sensitive, intervening uses.
(3) There exists a need for a site-specific criterion for a [substance] pollutant not listed in § 93.7, Table 3 or § 93.8c, Table 5 [(relating to water quality criteria for toxic substances)].
(a.1) Site-specific criteria may not be developed when one or more of the following apply:
(1) If the request is for a waterbody or waterbody segment where a pollutant is a cause of nonattainment for a protected water use as listed in Pennsylvania's Integrated Water Quality Monitoring and Assessment Report, as amended and updated.
(2) If the request is for a waterbody or waterbody segment where an aquatic life use is not attained, unless the causes of nonattainment are due to causes other than pollutants as determined by the Department in an assessment. Assessments are publicly available on the Department's web site.
(3) If the request is for surface waters with an existing or designated use of HQ or EV.
(b) The [request] applicant's demonstration for consideration of site-specific criteria, under subsections (a) and (a.1), must include the [results of scientific studies for the purpose of] following information, at a minimum:
(1) [Defining the areal boundaries for application of the site-specific criteria which will include the potentially affected wastewater dischargers identified by the Department, through various means, including, but not limited to, the total maximum daily load (TMDL) process described in Chapter 96 (relating to water quality standards implementation) or biological assessments] [Reserved].
(1.1) Identification of the pollutant of concern.
(2) [Developing site-specific criteria which protect the surface water's existing and designated uses] [Reserved].
(2.1) Identification of the qualifying factor or factors in subsection (a).
(3) Identification of each waterbody or waterbody segment to which the site-specific criteria would apply, including stream name, municipality or municipalities, county or counties and existing and designated uses of each waterbody or waterbody segment.
(4) Scientific studies, data or other information that demonstrate the qualifying factor or factors in subsection (a) are met, which may include the following:
(i) Peer-reviewed, scientific literature related to the pollutant of concern.
(ii) For a demonstration of the qualifying factor in subsection (a)(1):
(A) Department or Federal water quality criteria rationale documents and regulations related to the pollutant of concern.
(B) Water quality and other relevant data collected on each waterbody or waterbody segment which demonstrate that the conditions differ from conditions upon which the existing aquatic life water quality criteria were based.
(iii) For a demonstration of the qualifying factor in subsection (a)(2):
(A) Documentation of more sensitive, intervening water uses for each waterbody or waterbody segment.
(B) Documentation of the presence, critical habitat or critical dependence of State-listed or Federally-listed threatened or endangered species in or on a surface water, if applicable.
(iv) Additional data or information as requested by the Department or that demonstrates the applicable qualifying factor is met.
(5) Information that demonstrates the factors in subsection (a.1) are not applicable.
(6) Information that demonstrates a water quality-based effluent limitation based on a water quality criterion found in § 93.7, Table 3 or § 93.8c, Table 5 is not achievable.
(c) [Scientific studies] Based on the results of a demonstration that the request for site-specific criteria satisfies subsections (a), (a.1) and (b), the Department may require the applicant to undertake studies and submit additional information to develop site-specific criteria that includes the following, at a minimum:
(1) Definition of the areal boundaries for application of the site-specific criteria which will include a description of each waterbody or waterbody segment.
(2) Identification of potentially affected National Pollutant Discharge Elimination System (NPDES)-permitted discharges, water withdrawals, total maximum daily loads (TMDL) and surface water assessments.
(3) Peer-reviewed scientific literature or other Department-approved data to be used in the development of the site-specific criterion. If data will be collected, a copy of the proposed plan for data collection shall be submitted for review, consideration and approval by the Department prior to commencement of data collection. Data collection shall be [performed] completed in accordance with the Department's data collection protocols and the following procedures and guidance [in the], as amended and updated: Water Quality Standards Handbook (EPA 1994), [as amended and updated, including:] ''Guidance on the Determination and Use of Water-Effect Ratios for Metals'' (February 1994); [and] the ''Methodology for Deriving Ambient Water Quality Crite-ria for the Protection of Human Health'' (2000) and the ''Guidelines for Deriving Numerical National Water Quality Criteria for the Protection of Aquatic Organisms and Their Uses'' (1985). Other guidance approved by the [department] Department, which is based on EPA-approved or scientifically defensible methodologies, may be used. The development of new or updated site-specific criteria for copper in freshwater systems shall be performed using the biotic ligand model (BLM).
(4) Copies of reports, including toxicity test data, signed by the consultant or entity that performed the work. Signed copies shall be submitted to the Department within 60 days of completion of the tests.
(5) Additional data or information as requested by the Department.
(c.1) If the required data and information is submitted, the Department will evaluate the information and may develop site-specific criteria for each requested waterbody or waterbody segment that protect the existing and designated uses of the surface waters in accordance with the criteria development methodologies outlined in subsection (c)(3), or other EPA-approved guidance and methods.
(c.2) The Department will incorporate approved site-specific criteria into this chapter and maintain a publicly available table of EPA-approved site-specific criteria.
(c.3) Site-specific criteria are not effective for Clean Water Act purposes until approved by the EPA.
(d) [Prior to conducting studies specified in subsections (b) and (c), a proposed plan of study shall be submitted to the Department for review, consideration and approval] [Reserved].
(e) [Signed copies of all reports including toxicity test data shall be submitted to the Department within 60 days of completion of the tests] [Reserved].
(f) [If the Department determines that site-specific criteria are appropriate in accordance with subsection (a), the Department will do the following:
(1) Publish the site-specific criterion in the Pennsylvania Bulletin, along with other special conditions under § 92a.82(b)(3) (relating to public notice of permit applications and draft permits) and provide for public participation and public hearing in accordance with §§ 92a.81, 92a.82, 92a.83 and 92a.85.
(2) Maintain a publicly available online table of site-specific criteria.
(3) Submit the methodologies used for site-specific criteria development to the EPA's Regional Administrator for review and approval, within 30 days of Department's final action.
(4) Prepare a recommendation to the EQB in the form of proposed rulemaking, incorporating that criterion for the water body segment] [Reserved].
(g) [If the Department determines that new Statewide criteria or modifications to Statewide criteria are appropriate, the Department will prepare a recommendation to the EQB in the form of proposed rulemaking, incorporating the criteria into this chapter. The new criteria and changes to the criteria will become effective following adoption by the EQB as final rulemaking and publication in the Pennsylvania Bulletin] [Reserved].
(h) A person challenging a Department action under this section shall have the burden of proof to demonstrate that the Department's action does not meet the requirements of this section.
DESIGNATED WATER USES AND WATER QUALITY CRITERIA§ 93.9o. Drainage List O.
Susquehanna River Basin in Pennsylvania
Susquehanna River
Stream Zone County Water Uses Protected Exceptions To Specific Criteria * * * * * 3—Stone Run Basin (all sections in PA) Chester TSF, MF None 2—Deer Creek Basin (all sections in PA), Source to Ebaughs Creek York CWF, MF None 3—Ebaughs Creek Basin (all sections in PA) York CWF, MF Delete Mercury Human Health
= 0.05 µg/L
Add
Methylmercury Human Health
= 0.00004 µg/L2—Deer Creek Basin (all sections in PA), Ebaughs Creek to Mouth York CWF, MF None 1—Chesapeake Bay (MD) * * * * *
[Pa.B. Doc. No. 23-1508. Filed for public inspection November 3, 2023, 9:00 a.m.]
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