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PA Bulletin, Doc. No. 99-1578



[25 PA. CODE CHS. 16, 92, 93, 95, 96 AND 97]

Regulatory Basics Initiative (RBI) Amendments and Water Quality Standards

[29 Pa.B. 4872]

   The Department of Environmental Protection (Department) is soliciting comments on changes it recommends be made to the proposed regulations relating to the Regulatory Basics Initiative (RBI) amendments to National Pollutant Discharge Elimination System, water quality standards, water quality standards implementation and industrial wastes. The draft final regulations were developed based on comments and other information received during the public comment period on the proposed amendments to Chapters 92, 93, 95 and 97 and proposed creation of Chapter 96, which were published as proposed rulemaking at 28 Pa.B. 4431 (August 29, 1998). In addition, the Department is seeking comments on the draft final amendments to Chapter 16, the Water Quality Toxics Management Strategy--Statement of Policy. Proposed changes to Chapter 16 were noticed at 28 Pa.B. 4289 (August 29, 1998) and available for public comment at the same time. The statement of policy contains water quality criteria for toxic substances and other information closely related to the regulations.

A.  Contact Persons and Submitting Comments

   Copies of the draft final regulations and statement of policy are available from the Bureau of Watershed Conservation at (717) 787-9637. 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. The draft final regulations are also available electronically through the DEP Web site (, choose: ''Public Participation Center.''

   Written comments should be addressed to Carol Young, Division of Assessment and Standards, Bureau of Watershed Conservation, 10th Floor, Rachel Carson State Office Building, 400 Market Street, P. O. Box 8555, Harrisburg, PA 17105-8555, (717) 787-9637. Comments may also be transmitted electronically to If the sender does not receive an acknowledgement of electronic comments within 2 working days, the comments should be resubmitted to ensure receipt. Comments must be received by November 17, 1999. A subject heading of the proposal and a return name and address must be included in each letter or transmission. Comments will not be accepted by facsimile or voice mail.

B.  Public Meetings/ Hearings

   The Department will hold three informational meetings/public hearings for the purpose of discussing the regulations and statement of policy and accepting oral testimony at the following locations at 6:30 p.m.:

October 4, 1999
Department of Environmental Protection
Southwest Regional Office
400 Waterfront Drive
Pittsburgh, PA 15222

October 5, 1999
Department of Environmental Protection
Southcentral Regional Office
909 Elmerton Avenue
Harrisburg, PA 17110

October 7, 1999
Department of Environmental Protection
Southeast Regional Office
Lee Park
555 North Lane
Conshohocken, PA 19428

C.  Background of the Draft Final Regulations and Statement of Policy

   In response to comments received during the official public comment period on the proposed rulemaking and following the Department's review of other related information, the Department has prepared a draft final regulation for public comment. While there is no legal requirement to provide an opportunity to comment on the Department's recommendations for final rulemaking, the Department believes further discussion would serve the public interest in this instance. Because of the close association of the toxics management statement of policy with the regulations, the statement of policy is being included in the same meetings, hearings and comment period.

   The preamble to the proposed regulation asked for comment on whether or not the potable water supply use should continue to be a Statewide use, or whether it should be changed so that applicable water quality criteria are only applied at existing or planned potable water supply intakes. Based on public comments, no change is being made to the potable water supply use, and the current language is retained.

   This regulatory package also constitutes the Triennial Review of Water Quality Standards mandated by EPA regulations at 40 CFR Part 131. Part of the review requires that states reexamine water body segments that do not meet the fishable or swimmable uses specified in section 101(a)(2) of the Federal Clean Water Act. The Department evaluated the two water bodies 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 proposed.

   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 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 (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.

   A change is made in the ''Water Uses Protected'' column of § 93.9p for a portion of Tunungwant Creek to correct an error. A transcription error was made in the Pennsylvania Code following notice of the EQB's final regulation at the November 15, 1988 meeting in 19 Pa.B. 968 (March 11, 1989). The final rulemaking deleted the exception to the water contact sports (WC) use for Tunungwant Creek, but the change was not made to the Pennsylvania Code. The deletion of the designated use ''WC'' is amended to reflect the EQB action.

   The draft final regulation and statement of policy contain changes in the following areas:

   Chapter 16:  In response to public comments that believed the proposal would be a lessening of water quality protection, 75 aquatic life criteria that had been proposed to be replaced with ''guidance values,'' are proposed to be reinstated as criteria in Table 1. The Department proposes to delete discussion of the methodology and guidance values in the draft final changes to the statement of policy.

   Several changes to water quality criteria are proposed to be made to update the criteria to reflect recent data and the EPA's criteria recommendations. To respond to the EPA's concern and provide consistency among the criteria, all water quality criteria are proposed to be rounded to two significant figures. Other language changes are proposed to be made to provide clarity and consistency, as pointed out in various comments.

   Chapter 92:  The most significant amendments to Chapter 92 (relating to the National Pollutant Discharge Elimination System permitting program) include changes to the pollution prevention provisions, monitoring requirements and the general NPDES provisions. The pollution prevention provisions have been rewritten to place the responsibility for encouraging pollution prevention on the Department rather than on the permittee. Proposed language that would have required a permittee to identify unregulated pollutants in its discharge and explain how the discharge of these pollutants would be eliminated or a permit amendment would be sought, has been deleted from the proposed amendments. Provisions that would have established effluent limits in general NPDES permits for any toxic or hazardous substance and authorized the use of these general permits in High Quality waters have been deleted and the original language reinstated.

   Chapter 93:  Warm water fishes (WWF) is proposed to be reinstated in the regulation as the base level of aquatic life use protection. This change was done in response to comments that pointed out that, under the proposal, unlisted waters would have no default protection until assessed.

   To respond to comments, the criterion for phenolics (Phen--5 ug/l) is proposed to be reinstated as it currently exists in § 93.7, Table 3, and is proposed to be applied with total dissolved solids (TDS1), nitrite plus nitrate (N), and fluoride (F) under new § 96.3(d).

   In § 93.9o of the drainage list of streams, the site-specific color criterion for the Main Stem of Codorus Creek in York County is proposed to be removed because the justification for a separate criterion of 50 platinum cobalt units is unclear. There is no perceptible difference instream between the two criteria (50 and 75 platinum cobalt units) and the EPA supports the change as appropriate for all State waters. The color level in the applicable stream exceeds both the site-specific and the Statewide criteria, so there is no lowering of existing quality involved in the proposed change. The Statewide color criterion (75 platinum cobalt units) would apply to the stream and, when it is achieved, will enhance the water quality.

   Chapter 95:  Section 97.15, quality standards, and § 97.63, oil bearing wastes (which was proposed to be moved to § 92.2d), are proposed to be moved to § 95.2 to continue to address situations that may be beyond the scope of NPDES permit coverage.

   Chapter 96:  Several comments addressed issues with the development of total maximum daily loads (TMDLs). Definitions for terms that do not appear in the chapter are proposed to be deleted and clarifying amendments are proposed to be made to some of the definitions. A new definition for ''WQBEL'' or ''water quality based effluent limitation'' is proposed to be added because the regulatory basis for development of effluent limitations is also proposed to be clarified in the chapter. Sections 96.3 and 96.4 (relating to water quality protection requirements; and TMDLs and WQBELs) are proposed to be amended and reorganized in response to the comments.


[Pa.B. Doc. No. 99-1578. Filed for public inspection September 17, 1999, 9:00 a.m.]

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