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PROPOSED RULEMAKING

[25 PA. CODE CH. 95]

Wastewater Treatment Requirements

[39 Pa.B. 6467]
[Saturday, November 7, 2009]

 The Environmental Quality Board (Board) proposes to amend 25 Pa. Code Chapter 95 (relating to Wastewater Treatment Requirements). The proposed amendments include the elimination of a redundant provision, the recognition of applicable TMDL requirements, and the establishment of new effluent standards for new sources of wastewaters containing high Total Dissolved Solids (TDS) concentrations.

 The proposal was adopted by the Board at its meeting of August 18, 2009.

A. Effective Date

 These amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.

B. Contact Persons

 For further information, contact Ronald C. Furlan, Chief, Division of Planning and Permits, P. O. Box 8774, Rachel Carson State Office Building, Harrisburg, PA 17105-8774, (717) 787-8184 or William Cumings, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, 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 Pennsylvania AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department) web site at http://www.dep.state.pa.us.

C. Statutory Authority

 The proposed rulemaking is being made under the authority of section 5 of The Clean Streams Law (35 P. S. § 691.5), which grants the Department the authority to adopt rules and regulations in establishing policy and priorities for issuing orders and permits and in taking other actions under this law, and sections 1917-A and 1920-A of The Administrative Code of 1929 (71 P. S. §§ 510-7 and 510-20).

D. Background and Purpose

 Total dissolved solids (TDS) is comprised of inorganic salts, organic matter and other dissolved materials in water. They can be naturally present in water or the result of runoff, mining or industrial or municipal treatment of water. TDS contain minerals and organic molecules that provide benefits such as nutrients, but also may contain contaminants such as toxic metals and organic pollutants. However, the benefits noted are when considered in moderation, which is likely not the case in a high TDS discharge. The concentration and composition of TDS in natural waters is determined by the geology of the drainage, atmospheric precipitation and the water balance (evaporation/precipitation).

 TDS causes toxicity to water bodies through increases in salinity, changes in the ionic composition of the water, and toxicity of individual ions. The composition of specific ions determines toxicity of elevated TDS in natural waters. Also, as the hardness increases, TDS toxicity may decrease. The major concern associated with high TDS concentrations relates to direct effects of increased salinity on the health of aquatic organisms.

 Water quality analyses performed for the major watersheds of this Commonwealth to date, show that many of the rivers and streams of this Commonwealth have a very limited ability to assimilate additional TDS, sulfates and chlorides. This phenomenon was most evident during the fall of 2008, when actual water quality issues related to these parameters emerged in the Monongahela River basin. While river flows reached seasonal lows, the concentrations of TDS and sulfates in the river increased to historic highs, exceeding the water quality standards at all of the 17 Potable Water Supply intakes from the border with West Virginia to Pittsburgh. Exceedances of water quality standards for TDS and sulfate persisted in the river through November and December of 2008. Elevated chloride levels were observed on at least one major tributary—South Fork Tenmile Creek—and for the first time, elevated bromide levels were observed in these streams.

 During this period, several environmental agencies performed studies on the effects of TDS, sulfate and chloride discharges on the Monongahela and some of its tributaries. A study conducted by the Environmental Protection Agency (EPA), the Department and the Allegheny County Health Department (ACHD) also identified bromides as a key parameter of concern in these waters. The study concluded that a high percentage of the Disinfection By-Products (DBPs) being formed in the drinking water systems were brominated DBPs, which pose a greater health risk than chlorinated DBPs; and, subsequent formation of brominated DBPs increases overall DBP concentrations, specifically trihalomethanes (THMs). The study also concluded that based on the speciation there appears to be a strong correlation between THM formation and elevated source water bromide concentrations in the Monongahela River. As a result, the 17 potable water supply intakes on the Monongahela River are subject to higher levels of the more toxic brominated DBPs, creating increased risks of bladder cancer to their consumers.

 Several studies on the potential impacts to aquatic life from these large TDS discharges were also conducted on major tributaries flowing into the Monongahela River in Greene County, PA. Each of these studies documents the adverse effects of discharges of TDS, sulfates and chlorides on the aquatic communities in these receiving streams. The former concludes that there is a high abundance of halophilic (salt-loving) organisms downstream from the discharges of TDS and chlorides and a clear transition of fresh water organisms to brackish water organisms in the receiving stream from points above the discharge to points below. It is evident from this study that increases in salinity have caused a shift in biotic communities.

 The Monongahela River Watershed is being adversely impacted by TDS discharges and many points in the watershed are already impaired, with TDS, sulfates and chlorides as the cause.

 Although the Monongahela has received the most attention, it is not an anomalous situation. The Department has studied the results of stream monitoring and has conducted an analysis on the water quality of the Beaver River in western Pennsylvania. These results show upward trends in TDS concentrations. The Department has also conducted similar studies on the Shenango and Neshannock Rivers, with similar upward trends in TDS concentrations.

 In addition, watershed analyses conducted by the Department of the West Branch of the Susquehanna River and the Moshannon River Watersheds have documented that they are also severely limited in the capacity to assimilate new loads of TDS and sulfates. The Department has received several permit applications in these areas where the permits will not be able to be issued with limits greater than the water quality standards due to the high background concentrations of TDS.

 The surveys, analyses and studies referenced establish that the extent of existing and potential pollution from TDS, sulfates and chlorides is widespread. The Department is constrained from approving any significant portion of the pending proposals and applications for new sources of discharge high-TDS wastewater that include sulfates and chlorides, and still protect the quality of streams in this Commonwealth.

 The existing practice for high TDS wastewaters is the removal of heavy metals, but currently no treatment exists for TDS, sulfates and chlorides, other than dilution. As documented by the rising levels of TDS in the waters of this Commonwealth, dilution can no longer be considered adequate treatment for high TDS wastewaters.

 The Clean Streams Law (35 P. S. §§ 691.1—691.1001) delegates the authority to preserve and improve the purity of its waters and develop remedies to purify those waters currently polluted to the Department, in the form of adopting rules and regulations as necessary to accomplish these tasks.

 The Department's ''Permitting Strategy for High Total Dissolved Solids (TDS) Wastewater Discharges'' (April 11, 2009) outlines the foundation and scientific rationale for promulgation of such rules and regulations necessary to address the existing and potential pollution of this Commonwealth's waters from large sources of TDS, sulfates and chlorides. This approach relies upon the basic water quality management premise that discharges of these pollutants must be managed through permit limitations required by the more stringent of treatment-based or water quality-based standards.

 The goal of this permitting strategy is that by January 1, 2011, new sources of High-TDS wastewaters will be prohibited from this Commonwealth's waters. To achieve this goal, the Department proposes to amend Chapter 95 to establish new effluent standards.

 In addition to moving this regulatory package forward, the Department is considering, on a parallel track, the formation of a work group in the Monongahela River Watershed to review possible alternative approaches that would also be protective of this Commonwealth's water resources.

 The proposed rulemaking was presented to the Water Resources Advisory Committee (WRAC) at a special meeting on June 19, 2009, and considered at the WRAC's regular meeting on July 15, 2009. The WRAC, by majority vote, recommended that the Department work in conjunction with the WRAC to form a Statewide stakeholders group to analyze the issues and develop appropriate solutions, in lieu of proceeding with the currently proposed rulemaking.

E. Summary of Regulatory Requirements

Section 95.2. Effluent standards for industrial wastes.

 The Department has proposed to retitle the section for clarity. The Department also proposes to delete paragraph (1) because it is redundant. The other paragraphs have been renumbered as a result of the deletion of paragraph (1).

Section 95.10. Effluent standards for new sources of wastewaters containing high Total Dissolved Solids (TDS) concentrations.

 This is a new section. Subsection (a) defines high TDS wastewater. Subsection (b) establishes effluent standards for TDS, total chlorides and total sulfates, and provides for exceptions to these criteria for industries that have established Federal criteria for TDS, sulfates and chlorides. Subsection (c) establishes criteria for new sources of wastewaters resulting from fracturing, production, field exploration, drilling or completion of oil and gas wells. Subsection (d) establishes that the effluent limitations in § 95.10 will not apply if an NPDES permit has established more stringent limitations than the limits specified in this section.

 The term ''new discharge'' is also defined in subsection (a). This definition is intended to make it clear that a new discharge from an existing facility, an additional discharge from an existing facility or an expanded discharge from an existing facility are included. It is not intended to include discharges from treatment facilities for abandoned mine discharges (AMD), which existed on April 1, 2009, where new treatment facilities are installed or existing facilities are modified. This is important to assure that efforts to treat AMD by third parties (watershed groups, trustees or the government) are not thwarted by imposing limits on these projects with overwhelming positive environmental benefits. Remining projects authorized under Chapter 87 Subchapter F or Chapter 88 Subchapter G are also not included in this definition because the discharges associated with them existed as of April 1, 2009.

F. Benefits, Costs and Compliance

Benefits

 The Monongahela River has been significantly impacted by discharges of wastewaters containing high TDS concentrations. These high TDS concentrations have caused exceedances of drinking water standards at many drinking water treatment plants in this Commonwealth. Some of these exceedances include bromides. Bromides in drinking water may result in the formation of disinfection byproducts that are more toxic than the byproducts from chlorination. This proposed rulemaking will address these high TDS discharges as well as high levels of chlorides and sulfates, resulting in cleaner streams. This reduction will also reduce the number of brominated disinfection byproducts and help to ensure safe drinking water for this Commonwealth.

Compliance Costs

 The regulation will impose new costs on new or increased discharges of high TDS wastewater. New or increased discharges will be required to install advanced treatment to meet the requirements of this proposed rulemaking. It is anticipated that treatment costs could be on the order of $0.25/gallon. Since there is currently no treatment required for TDS, chlorides, and sulfates, any cost is an increase over the existing cost.

 Existing facilities will have minimal additional costs as a result of this proposed rulemaking. The additional costs will be the result of additional monitoring and recordkeeping that will be required to comply with this rulemaking.

Compliance Assistance Plan

 The Department has conducted many outreach sessions to educate stakeholders about the new regulations, at least as they apply to Marcellus Shale activities. These include:

 • On October 16, 2008, the Department sent a letter to existing treatment plants in this Commonwealth explaining the requirements that would apply to each plant that chooses to accept high TDS wastewater, including additional monitoring.

 • On April 15, 2009, the Department held a meeting of the Marcellus Shale Wastewater Partnership to introduce and discuss the Permitting Strategy for High TDS Wastewater Discharges.

 • On April 16, 20 and 21, 2009, industry sponsored Marcellus Shale application training, including wastewater transportation and delivery, was held in Williamsport, Canonsburg and Clarion. Questions were taken and answered, and a Question and Answer document has been posted on the Department's web site.

 • In the spring of 2009, a wastewater generation, transportation and disposal powerpoint presentation was developed, and is posted on the Department's web site.

 • In 2009, the Department will be offering Industry Training Workshops at six locations throughout this Commonwealth. Wastewater management issues will be addressed in the training after the regulation has been finalized.

Paperwork Requirements

 This proposal will result in additional paperwork only for existing wastewater treatment plants that choose to accept high TDS wastewater. This additional paperwork will include additional monitoring and recordkeeping requirements, as well as the requirement to develop or revise a pretreatment program and to modify their existing NPDES permit to reflect the constituents present in the high TDS wastewater.

G.  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.

H. Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on October 28, 2009, the Department submitted a copy of the proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and the Senate and House Environmental Resources and Energy Committees (Committees). In addition to submitting the proposed amendments, the Department 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.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey any comments, recommendations or objections to the proposed amendments within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria that have not been met. The Regulatory Review Act specifies detailed procedures for review of these issues by the Department, the General Assembly and the Governor prior to final publication of the regulations.

I. Public Comments

 The Department is particularly interested in comments regarding economic impacts and treatment technologies, including levels of treatment and associated costs, from industries covered by this regulatory change. Comments on this and other aspects of the draft regulation can be submitted in hard or electronic copy as explained as follows.

Written Comments—Interested persons are invited to submit comments, suggestions or objections regarding the proposed regulation to the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477 (express mail: Rachel Carson State Office Building, 16th Floor, 400 Market Street, Harrisburg, PA 17105-2301). Comments submitted by facsimile will not be accepted. Comments, suggestions or objections must be received by the Board by February 5, 2010. 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 the Board by February 5, 2010. 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 regulation will be considered.

Electronic Comments—Comments may be submitted electronically to the Board at RegComments@dep.state. pa.us and must also be received by the Board by February 5, 2010. A subject heading of the proposal and a return name and address must be included in each transmission. If an acknowledgement of electronic comments is not received by the sender within 2 working days, the comments should be retransmitted to ensure receipt.

J. Public Hearings

 The Board will hold four public hearings for the purpose of accepting comments on this proposal. The hearings will be held at 5 p.m. on the following dates:

December 14, 2009
5 p.m.
Cranberry Township Municipal  Building
2525 Rochester Road
Cranberry Township, PA 16066-6499
December 15, 2009
5 p.m.
Department of Environmental  Protection
Cambria District Office
286 Industrial Park Road
Ebensburg, PA 15931
December 16, 2009
5 p.m.
Department of Environmental  Protection
Northcentral Regional Office
Goddard Conference Room
208 West Third Street,
Suite 101
Williamsport, PA 17701-6448
December 17, 2009
5 p.m.
Lehigh County Government Center
17 S. 7th Street
Allentown, PA 18101

 Persons wishing to present testimony at a hearing are requested to contact the Environmental Quality Board, P. O. Box 8477, Harrisburg, PA 17105-8477, (717) 787-4526, 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 each hearing.

 Persons in need of accommodations as provided for in the Americans With Disabilities Act of 1990 should contact the Board at (717) 787-4526 or through the Pennsylvania AT&T Relay Service at (800) 654-5984 (TDD) to discuss how the Board may accommodate their needs.

JOHN HANGER, 
Chairperson

Fiscal Note: 7-446. 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 95. WASTEWATER TREATMENT REQUIREMENTS

§ 95.2. [Quality standards and oil-bearing wastewaters] Effluent standards for industrial wastes.

 Industrial [waste shall] wastes must meet the following [quality] effluent standards:

 (1) [There may be no discharge of wastes which are acid.

(2)]Wastes [shall] must have a pH of not less than 6 and not greater than 9, except where:

*  *  *  *  *

[(3)] (2) Oil-bearing wastewaters, except those subject to paragraph [(4), shall] (3), must comply with [all of] the following:

*  *  *  *  *

[(4)] (3) Petroleum marketing terminals [shall] must:

*  *  *  *  *

[(5)] (4) Waste may not contain more than 7 milligrams per liter of dissolved iron.

[(6)] (5) When surface waters are used in the industrial plant, the quality of the effluent need not exceed the quality of the raw water supply if the source or supply would normally drain to the point of effluent discharge, unless otherwise required under the [State Act] act or Federal Act or regulations promulgated thereunder.

 (Editor's Note: Section 95.10 is new and printed in regular print to enhance readability.)

§ 95.10. Effluent standards for new discharges of wastewaters containing high Total Dissolved Solids (TDSs) concentrations.

 (a) For the purpose of implementing this section, a new discharge of High-TDS wastewater is a discharge that did not exist on April 1, 2009, and includes a TDS concentration that exceeds 2,000 mg/L or a TDS loading that exceeds 100,000 pounds per day. The term ''new discharge'' includes an additional discharge, an expanded discharge or an increased discharge from a facility in existence prior to April 1, 2009.

 (b) Unless specifically exempted under paragraph (6), new discharges of wastewater with High-TDS must comply with the following:

 (1) Section 95.2 (relating to effluent standards for industrial wastes).

 (2) The discharge may not contain more than 500 mg/L of TDS as a monthly average.

 (3) The discharge may not contain more than 250 mg/L of total chlorides as a monthly average.

 (4) The discharge may not contain more than 250 mg/L of total sulfates as a monthly average.

 (5) In addition to paragraphs (1)—(4), discharges to groundwater, including land application and discharges to existing mine pools, must comply with §§ 91.51 and 91.52 (relating to underground disposal).

 (6) Discharges of wastewater produced from industrial subcategories with applicable Effluent Limit Guidelines for TDS, Chlorides or Sulfates established as Best Available Technology Economically Achievable (BAT), Best Conventional Pollutant Control Technology (BCT), or new source standards of performance, by the Administrator of the EPA under sections 303(b) and 306 of the Federal Act (33 U.S.C.A. §§ 1314(b) and 1316) are exempt from the effluent standards in this section.

 (c) New discharges of wastewaters resulting from fracturing, production, field exploration, drilling or completion of oil and gas wells must comply with the following provisions, in addition to the provisions in subsection (b):

 (1) There may be no discharge of wastewater into waters of this Commonwealth from any direct source or site of fracturing, production, field exploration, drilling, or well completion, (that is, produced water, drilling muds, drill cuttings, and produced sand).

 (2) Treated discharges of wastewater generated from fracturing, production, field exploration, drilling, or well completion may be authorized by the Department under Chapter 92 (relating to National Pollutant Discharge Elimination System Permitting, Monitoring and Compliance). The discharges shall be authorized only from centralized waste treatment (CWT) facilities and approved Publicly Owned Treatment Works (POTWs).

 (3) The discharge may not contain more than 10 mg/L of total barium as a monthly average.

 (4) The discharge may not contain more than 10 mg/L of total strontium as a monthly average.

 (5) Where a discharge from a CWT facility is proposed, the discharge must comply with the performance standards in 40 CFR 437.34 (relating to new source performance standards (NSPS)), in addition to complying with paragraphs (2)—(4).

 (6) Where a discharge through a POTW is proposed, in addition to compliance with the requirements of paragraphs (2)—(4) the following apply:

 (i) Pretreatment shall be provided and comply with the performance standards found in 40 CFR 437.36 (relating to pretreatment standards for new sources).

 (ii) The POTW shall develop and implement a Federal pretreatment program meeting the applicable standards found in 40 CFR 403.8 (relating to pretreatment program requirements: development and implementation by POTW).

 (d) Any wastewater treatment requirement established under this chapter does not apply if an NPDES permit limitation established under Chapter 92 provides a more stringent effluent limitation requirement than would be provided by application of this chapter.

[Pa.B. Doc. No. 09-2065. Filed for public inspection November 6, 2009, 9:00 a.m.]



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