475 Great Lakes Initiative (GLI)

[25 PA. CODE CH. 93]

Great Lakes Initiative (GLI)

[27 Pa.B. 1561]

   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 regulatory changes incorporate requirements of the Great Lakes Water Quality Guidance (GLI) into the water quality standards regulations.

   This notice is given under Board order at its meeting of February 18, 1997.

A.  Effective Date

   These proposed amendments will be effective upon publication in the Pennsylvania Bulletin as final rulemaking.

B.  Contact Persons

   For further information, 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, 400 Market Street, Harrisburg, PA 17105-8555, [phone] 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, [phone]. 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 [phone] (TDD users) or [phone] (voice users). This proposal is available electronically through the Department of Environment Protection's (Department's) Web site (http://www.dep.state.pa.us).

C.  Statutory Authority

   These proposed 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.

D.  Background of the Amendment

   The Commonwealth's Water Quality Standards, which are in Chapter 93, implement the provisions of sections 5 and 402 of The Clean Streams Law and section 303 of the Federal Clean Water Act (33 U.S.C.A. § 1313). Water quality standards consist of the designated uses of the surface waters of this Commonwealth and the specific numeric and narrative criteria necessary to achieve and maintain those uses.

   The GLI requirements, promulgated at 40 CFR Part 132 on March 23, 1995 (60 FR 15366), provide for consistent protection for fish and shellfish in the Great Lakes System and the people and wildlife who consume them. The GLI focuses on long-lasting pollutants called bioaccumulative chemicals of concern (BCCs) that accumulate in the food web of large lakes. The major elements of the GLI are water quality criteria to protect human health, aquatic life and wildlife, methodologies for criteria development, procedures for developing effluent limits for point sources, and antidegradation policies and procedures. States are required to adopt water quality standards, antidegradation policies and implementation procedures as protective as the GLI.

   The Commonwealth's strategy for complying with the GLI has two major objectives. The first objective is, wherever possible, to provide Statewide consistency, so that unequal requirements are not focused on specific regions of this Commonwealth. The second objective is to provide special protection to the unique resource known as the Great Lakes System in this Commonwealth. To meet these objectives, the Department proposes applying scientifically sound methodologies from both current practice and as identified in the GLI, Statewide. Exceptions to Statewide procedures are made when the unique character of the Great Lakes System demands special consideration. For example, BCCs pose a particular threat to the Great Lakes because of the long retention of pollutants in the Great Lakes, which contrasts with the ability of streams to flush out those pollutants by their flow. For this reason, application of procedures for BCCs is different for the Great Lakes than in other waters of this Commonwealth.

   The Department held a public meeting in Erie on the requirements of the GLI on September 5, 1995. In February 1996, the Commonwealth's proposed strategy was made available on the world wide web for public comment. Two meetings were also held on June 5, 1996, one with an ad hoc Great Lakes Technical Committee and the second with the public, to discuss the proposed strategy. In addition, the Department has met on several occasions with the Water Subcommittee of the Air and Water Quality Technical Advisory Committee (AWQTAC) to discuss the GLI strategy, and has sent representatives to participate in meetings with the Council of Great Lakes Governors Working Group and Technical Subcommittee, which provide a forum for the states to discuss how each is addressing the GLI requirements. Particular issues have been raised and responded to at the meetings. Comments were received from AWQTAC concerning definitions, applicability of site-specific criteria, protection of endangered species, mixing zones and antidegradation. In recognition of those comments, the Department has included definitions for the terms requested by AWQTAC, and has clarified language relating to site-specific criteria and mixing zones. For antidegradation, the Department's intent, which is in accordance with the requirements of the GLI, is to apply the same antidegradation policy to the Great Lakes System as to the rest of the State, with additional provisions for bioaccumulative chemicals of concern in the Great Lakes System. A proposed Statewide antidegradation statement of policy was approved by the Board on January 21, 1997, and was published at 27 Pa.B. 1473 (March 22, 1997). Additional public comments will be requested as part of the rulemaking process.

   The Department has proposed to incorporate numerous GLI provisions into the Statement of Policy at Chapter 16 (relating to water quality toxics management strategy). The proposed amendments to the Statement of Policy were published at 26 Pa.B. 4220 (December 28, 1996). Those proposed amendments should be reviewed together with these proposed amendments to obtain an understanding of the scope of the GLI.

E.  Summary of Regulatory Revisions

Section	Brief Description of Proposed Revision
93.1	Definitions:  Definitions for bioaccumulation factors, bioaccumulative chemicals of concern, the Great Lakes System, open waters of the Great Lakes and surface waters are added. The definitions are similar to the Federal definitions in the GLI, but the definition of the Great Lakes System is restricted to this Commonwealth portions of the Great Lakes basin.
93.8	Development of site-specific water quality criteria: The title and language of this section are modified to broaden the applicability of site-specific criteria to all forms of criteria in order to match the GLI (The current regulation is limited to aquatic life criteria). Site-specific criteria may be developed to replace currently existing Statewide or regional criteria; this change is not limited to the Great Lakes System, but is applicable Statewide. Language has also been added to cross reference this section to new proposed § 16.61 (relating to the Great Lakes System).
93.8a	Toxic substances:  A new subsection (k) relating to requirements for discharges to the Great Lakes System is added to § 93.8a. Paragraph (1) adopts by reference the GLI mixing requirements for discharges of BCCs to the Great Lakes. Paragraph 2 adopts by reference the GLI procedures for total maximum daily loads (TMDLs) for the open waters. Paragraph (3) addresses antidegradation provisions for BCCs in all waters of the Great Lakes System.    The GLI includes a provision for determining wasteload allocations (WLAs) for discharges to the tributaries as well as the open waters of the Great Lakes. The Department has submitted information to the Environmental Protection Agency (EPA) demonstrating that its existing procedures for developing WLAs on tributary streams are as protective as the GLI procedures for the tributary discharges. Because mixing procedures in lakes had not been developed prior to the GLI, the GLI methods are proposed for adoption for use in the open waters of the Great Lakes System.

F.  Benefits, Costs and Compliance

   Executive Order 1996-1 requires a cost/benefit analysis of the proposed amendments.

Benefits

   Overall, the citizens of this Commonwealth will benefit from these recommended changes because they will provide appropriate protection of surface waters in the Great Lakes System, including concerns specific to this Commonwealth.

Compliance Costs

   Discharges to the Great Lakes System, especially to the open waters of the Lakes, may require alternate disposal methods, installation of additional technology to meet more stringent effluent limitations than discharges to other waters of this Commonwealth, and compliance costs may be higher for those discharges to the waters.

   The changes may have some fiscal impact on or create additional compliance costs for the Commonwealth, political subdivisions, local governments and the private sector with wastewater discharges to the Great Lakes System. The number of affected discharges depends on the types and amounts of substances they discharge (whether or not they are BCCs). Currently, no permitted discharge to the Great Lakes System is known to be discharging BCCs and, therefore, no discharge currently has any effluent limitations for any BCCs.

Compliance Assistance Plan

   The Department plans to educate and assist the affected public with understanding the revised requirements and how to comply with them by developing guidances. Regional Office permitting staff will work with dischargers, where necessary, to assist them in meeting any additional requirements imposed by the GLI. Based on currently available information, significant changes to permit limits and compliance levels are not expected.

Paperwork Requirements.

   The regulatory revisions should not have any additional paperwork impacts on the Commonwealth, its political subdivisions and the private sector.

G.  Pollution Prevention

   Pollution prevention approaches to environmental management often provide environmentally sound and longer-term solutions to environmental protection because pollution is prevented at the source. Pollution prevention is defined by the EPA as measures taken to avoid or reduce generation of all types of pollution--solid/hazardous waste, wastewater discharges and air emissions--at their point of origin; however, it does not include activities undertaken to treat, control or dispose of pollution once it is created. The Federal Pollution Prevention Act of 1990 established a National policy and an environmental management hierarchy that promotes pollution prevention as the preferred manner for achieving State environmental protection goals. The hierarchy is as follows:

   a.  Pollution should be prevented or reduced at the source.

   b.  Pollution that cannot be prevented should be recycled in an environmentally safe manner whenever feasible.

   c.  Pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible to render it less hazardous, toxic or harmful to the environment.

   d.  Disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.

   The short- and long-term health of this Commonwealth's economy depends on clean air, pure water and the preservation of the natural, scenic, historic and aesthetic values of the environment. Pennsylvanians spend over $1 billion per year in efforts to control pollutants through regulation of both industrial point discharges and nonpoint sources. In order to meet the Commonwealth's economic development and environmental protection goals successfully, the Commonwealth needs to adopt programs like pollution prevention that not only protect the environment but also significantly reduce costs and increase the competitiveness of the regulated community. When pollution is prevented up front, it can reduce a company's bottom-line costs and overall environmental liabilities often by getting the company out of the regulatory loop. It also can get the Department out of the business of regulating pollution that may not need to be generated in the first place.

   In keeping with Governor Ridge's interest in encouraging pollution prevention solutions to environmental problems, these proposed amendments have incorporated the following provisions and incentives to meet that goal: these regulations are consistent with the GLI provisions that encourage pollution prevention by promoting the development of pollution prevention analysis and activities in the level of detection, mixing procedures, and antidegradation. Also, special provisions for BCCs reduce the discharge of these pollutants in the future, and therefore aid in preventing pollution.

H.  Sunset Review

   These regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.

I.  Regulatory Review

   Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed rulemaking on March 18, 1997, to the Independent Regulatory Review Commission (IRRC) and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In addition to submitting the proposed amendments, the Department has provided IRRC and the Committees with a copy of a detailed regulatory analysis form prepared by the Department. A copy of this material is available to the public upon request.

   If IRRC has objections to any portion of the proposed amendments, it will notify the Department within 30 days of the close of the public comment period. The notification shall specify the regulatory review criteria which have not been met by that portion. The Regulatory Review Act specifies detailed procedures for the Department, the Governor, and the General Assembly to review these objections before final publication of the regulations.

J.  Public Comments

   Written Comments--Interested persons are invited to submit comments, suggestions or objections regarding the proposed amendments 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 May 13, 1997 (within 45 days of publication in the Pennsylvania Bulletin). 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 May 13, 1997 (within 45 days following publication in the Pennsylvania Bulletin). 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-form regulations will be considered.

   Electronic Comments--Comments may be submitted electronically to the Board at [e-mail] and must also be received by the Board by May 13, 1997. A subject heading of the proposal and return name and address must be included in each transmission. If an acknowledgment of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.

K.  Public Hearing

   The Board will hold a public hearing for the purpose of accepting comments on this proposal. The hearing will be held at 1 p.m. on the following date:

May 13, 1997

Department of Environmental    Protection 1st Floor Meeting Room, Rachel Carson    State Office Bldg. 400 Market Street Harrisburg, PA

   Persons wishing to present testimony are requested to contact Nancy Roush at the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, [phone], at least 1 week in advance of the hearing to reserve a time to present testimony. Oral testimony is limited to 10 minutes for each witness. Witnesses are requested to submit three written copies of their oral testimony to the hearing chairperson at the hearing. Organizations are limited to designating one witness to present testimony on their behalf at the hearing.

   Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact Nancy Roush directly at [phone] or through the Pennsylvania AT&T Relay Services at [phone] (TDD) to discuss how the Department may accommodate their needs.

JAMES M. SEIF,   
Chairperson

   Fiscal Note:  7-312. 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

§ 93.1.  Definitions.

   The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

*      *      *      *      *

   BAF--bioaccumulation factor--The ratio in liters per kilogram of a substance's concentration in tissues of an aquatic organism to its concentration in the ambient water, in situations where both the organism and its food are exposed and the ratio does not change substantially over time.

   BCC--bioaccumulative chemical of concern--A chemical that has the potential to cause adverse effects which, upon entering the surface waters, by itself or its toxic transformation product, accumulates in aquatic organisms by a human health bioaccumulation factor greater than 1,000. After considering metabolism and other physiochemical properties that might enhance or inhibit bioaccumulation, BCCs are listed in Subpart A of Table 6 at 40 CFR Part 132 (relating to water quality guidance for the Great Lakes system).

*      *      *      *      *

   Great Lakes system--The streams, rivers, lakes and other bodies of surface water within the drainage basin of the Great Lakes in this Commonwealth.

*      *      *      *      *

   Open waters of the Great Lakes--The waters within the Great Lakes in this Commonwealth lakeward from a line drawn across the mouth of the tributaries to the lakes, including the waters enclosed by constructed breakwaters, but not including the connecting channels.

*      *      *      *      *

   Surface waters--Perennial and intermittent streams, rivers, lakes, reservoirs, ponds, wetlands, springs, natural seeps and estuaries, excluding water at facilities approved for wastewater treatment such as wastewater treatment impoundments, cooling water ponds and constructed wetlands used as part of a wastewater treatment process.

*      *      *      *      *

§ 93.8.  Development of site-specific water quality criteria [for the protection of aquatic life].

   (a)  The Department will consider a request for site-specific [aquatic life] criteria for protection of aquatic life, human health or wildlife when a person demonstrates that there exist site-specific biological or chemical conditions of receiving waters or exposure factors which differ from conditions upon which [Statewide] the water quality criteria were based. Site- specific criteria may be developed for use only in place of current Statewide or regional (such as the Great Lakes system) criteria. The request for site- specific criteria shall include the results of scientific studies for the purpose of:

*      *      *      *      *

   (2)  Developing site-specific criteria which protect [the] its existing [aquatic life and aquatic life expected to be present if the stream were meeting its] use and designated use.

*      *      *      *      *

   (c)  This section applies to the criteria in regulations adopted by the EQB, including § 93.5(f) (relating to application of total residual chlorine criteria); § 93.7, Table 3 (relating to specific water quality criteria) or in the statement of policy implementing § 93.8a (relating to toxic substances) set forth at §§ 16.51 and 16.61 (relating to table; and water quality criteria special provisions for the Great Lakes system); or otherwise forming the basis for effluent limitations established under § 93.7(f). These provisions include criteria developed by the EPA under section 304(a) of the Water Pollution Control Act (33 U.S.C.A. § 1314(a)), and adopted in their original or modified form, and criteria developed by the Department.

*      *      *      *      *

§ 93.8a.  Toxic substances.

*      *      *      *      *

   (k)  The requirements for discharges to and antidegradation requirements for the Great Lakes system are as follows:

   (1)  Discharges of BCCs in the Great Lakes system shall comply with the mixing procedures at 40 CFR Part 132, Appendix F, Procedure 3, Subpart C, which are incorporated by reference.

   (2)  Total maximum daily loads (TMDLs) for open waters of the Great Lakes shall be derived following the procedures at 40 CFR Part 132, Appendix F, Procedure 3, Subpart D, which are incorporated by reference.

   (3)  Statewide antidegradation requirements in this chapter and Chapter 95 (relating to wastewater treatment requirements) and in the Federal regulation at 40 CFR 131.32(a) (relating to antidegradation policy--Pennsylvania), as applicable, apply to the surface waters of the Great Lakes system.

   (4)  If, for any BCC, the quality of the surface water exceeds the levels necessary to support the propagation of fish, shellfish and wildlife and recreation in and on the waters, that quality shall be maintained and protected, unless the Department finds that allowing lower water quality is necessary to accommodate important economic or social development in the area in which the surface water is located, and will result in economic or social benefits to the public which outweigh any water quality degradation which the proposed discharge is expected to cause.

[Pa.B. Doc. No. 97-475. Filed for public inspection March 28, 1997, 9:00 a.m.]