REG BASICS COMMENT & RESPONSES

WATER QUALITY MANAGEMENT/STORAGE TANKS (3/26/96)

CATEGORY/CHAPTERISSUE #
  1. Act 537
The length of time it takes to get a 3-S sewage component passed is too long.

Response: The legislature looked closely at review time limits when they considered amendments to Act 537. Act 149 of 1994, amending Act 537, imposes a 60-day time limit on municipal review of these components with a deemed approval if the deadline is exceeded. The Act retained a 10-day completeness and a 60-day action limit for the DEP review.

43
  1. Act 537
Draft design flow criteria for septic system design are unnecessary and impose disproportionate costs. Use realistic design requirements based on actual flow data.

Response: Design flows for the sizing of on-lot systems are based on peak flows, not average daily flows. This is critical in soil-based systems because soils have limited hydraulic capacity and must remain aerobic to function properly. Any cost savings experienced from reduced sizing would be lost when repair/replacement systems are needed because of hydraulic overloads.

66
  1. Act 537
Sewage facilities planning requirements extend beyond sewage disposal issues, are confusing and burdensome. DEP should re-evaluate sewage facilities requirements and incorporate Act 149.

Response: The Environmental Quality Board has approved publication of proposed rulemaking to implement Act 149. DEP is currently granting planning exemptions under Act 149 for many developments which previously had to submit plans.

66
  1. Act 537
Component 3.Z Sewage Collection and Treatment takes 60 or more days to review. This delay costs the property owner. Eliminate the County Planning Agency signature block and eliminate the need for a letter from the Public Water Company stating that it will serve the proposed development.

Response: See response to comment 1. County planning agency comments are required by Act 537. Information regarding service by public water companies helps DEP coordinate sewage permits with water allocation permits.

84

  1. Act 537
Interpretation of the terms "lot" and "proposed site" are incorrect. Order the staff to use common sense in the interpretation of the regulations. [§71.62(c)(2)(iii)]

Response: "Lot" is a defined term needing no interpretation. DEP will propose to change "proposed site" to "lot" in the regulation revisions proposed to implement Act 149.

84
  1. Act 537
The Department's Nitrate Policy has, in fact, become a "de facto" zoning ordinance in many communities To correct, DEP should thoroughly review the use of 537 planning as a method to regulate nitrate nitrogen in drinking water. [Delete §71.62(c)(2)]

Response: DEP is evaluating the potential for pretreating residential wastewater using denitrification units ahead of on-lot systems in areas where nitrate-nitrogen exceeds 10 PPM. This would provide a technical solution and allow development in these areas. Proposed use of these units would be an alternative to hydrogeologic evaluations.

84
  1. Act 537
It has been questioned whether completed Pa DOT HOP and Utility Plans are required prior to module approval. If it is, it should be removed.

Response: These plans are not required by DEP prior to module approval. Local ordinances may be in effect which would require such approvals at the municipal level prior to the municipal approval of a module.

100
  1. Act 537
Landowners who propose to add to their current homesite should not be required to complete any type of waiver forms or planning module approval forms.

Response: The current waiver form for non-building lot creation is not required for lot additions which are merged into the existing tract.

100
  1. Act 537
Measurement of EDU should be based on factual flow data. DEP regulations, guidance documents and policies should be revised to reflect consistent EDU criteria.

Response: This issue will be discussed with the Department's Sewage Advisory Committee when the proposed rulemaking for Act 149 is reviewed following the public comment period.

100
  1. Act 537
Module reviews need to be expedited. Agencies should be required to review the modules concurrently.

Response: Act 149 shortened municipal review time limits and provided deemed approvals where municipal and DEP time limits are exceeded. The amendments did not provide authority to mandate concurrent review.

100
  1. Act 537
Parcels subdivided and sold as non-buildable lots, such as parcels used as farmland, should be exempt from the planning module process.

Response: The parcels described may obtain an exemption from the planning module process by submitting a "Form B- Request for Non-Building Lot Waiver".

100
  1. Act 537
Planning module approval process for sewer taps seem to be more stringent than federal regulations. We believe that a project which proposes a total of less than 10,000 gal/day(equivalent to 25 single family residences) should be considered approved by the municipality or agent certified by DEP.

Response: Act 149 provides a DEP-issued planning exemptions for such projects up to 250 EDUs if the applicant provides evidence to the municipality that the collection, conveyance and treatment system is in compliance with loading and effluent limits. Act 149 also provides delegation of these planning exemptions to certain local agencies.

100
  1. Act 537
The postcard method used in determining planning modules should be altered to include the allowance for a pre-design conference with the local DEP office to verbally explain the project, thereby allowing the proper module package to be given to the applicant.

Response: Regional staff are available to assist any applicant who is having difficulty completing the "postcard" . Since there are now only four distinct types of modules, this should not be a major problem in the future.

100
  1. Act 537 - Planning Modules
Planning module process is time-consuming and unnecessary in some instances. Recommend the modules not be needed for additions to an existing homesite, for non-buildable lots, and for farmland; and that review time for each government reviewer be reduced from 30 to 15 days.

Response: All of the categories mentioned currently may receive a planning module exemption using the "Form B- Request for Non-Building Lot Waiver" form. Act 149 provides planning exemptions for a broad range of types of new land development which have minimal potential impact on the public health. Act 149 sets the review time limits at 60 days for most government reviewers. DEP reviews 70% of the modules submitted within 15 days of receipt.

14
  1. Great Lakes Initiative
GLWQG anti-degradation requirements are a no-growth policy and would have an adverse effect on economic development. They shouldn't stand apart from PA's other anti-degradation requirements and should be incorporated into the special protection reg-neg.

Response: The Department will use the Special Protection Reg Neg recommendations to restructure the antidegradation program statewide. PA's proposed GLI strategy is to implement the GLI antidegradation procedures only for the bioaccumulative chemicals of concern (BCCs).

66
  1. Great Lakes Initiative
PA DEP should only incorporate into its water quality program only those portions of the GLWQG which are consistent with existing programs.

Response: The GLI focuses on special conditions of the Great Lakes System and uses current science to address them. The Department recognizes that the Great Lakes System is a special resource with distinct attributes and problems, which may require certain measures not currently part of existing programs. The Department's proposed strategy, therefore, incorporates new protections for the Great Lakes as necessary.

66
  1. Great Lakes Initiative
Statewide application of GLI requirements are more stringent than federal requirements. The GLI requirements should be confined to the Lake Erie basin.

Response: The Department's major aims during consideration of the GLI were statewide consistency and adequate protection of all waters. At the same time, we recognize the unique character of the Great Lakes System, particularly in the impact of bioaccumulative chemicals of concern. DEP does not intend to be more stringent than federal requirements unless PA-specific conditions require additional protection. Therefore, under the Department's proposed strategy, application of most of our recommendations are directed only toward the Great Lakes basin; to provide the best protection of our waters, a few recommendations are made for statewide application of GLI provisions.

66
  1. Great Lakes Initiative
There is no scientific justification for the regulatory approach taken by the Great Lakes Initiative, and DEP must be extremely cautions as it considers incorporation of the Great Lakes Water Quality Guidance (GLWQG).

Response: The Department recognizes that, based on available information and an evaluation of existing point source discharges, the major sources of pollutants to Lake Erie come from nonpoint sources. For this reason, the Department has developed a nonpoint source component to the proposed GLI strategy.

66
  1. Great Lakes Initiative
While data points to non-point sources as the major remaining pollutant sources, the GLWQG focuses only on point sources.

Response: DEP agrees and made this same point to EPA when it submitted comments on the GLI Guidance.

66
  1. Groundwater Protection Strategy
The application of the "no degradation policy" to other programs is overly burdensome and produced unrealistic standards.

Response: The Department is currently reviewing the Ground Water Quality Protection Strategy for consistency with Act 2, the Land Recycling and Environmental Remediation Standards Act. The non-degradation policy for ground water quality protection is also being evaluated. The Department anticipates that a revised document will be available for public review and comment later this year.

2
  1. Groundwater Protection Strategy
The application of the "no degradation policy" to other programs is overly burdensome and produced unrealistic standards.

Response: See response to comment #20.

38
  1. Groundwater Protection Strategy
Anti-degradation element in strategy is unnecessary and burdensome. Expedite full Act 2 implementation guidelines.

Response: See response to comment #20.

66
  1. Groundwater Protection Strategy
The use of total metals (versus dissolved metal concentrations) is inappropriate to establish groundwater protection standards.

Response: The Department uses the total form of the metal in establishing clean up standards which are based on MCLs. MCLs are implemented in the drinking water program in the total form.

73
  1. NPDES Permitting
Process is too prescriptive, complex and lengthy; the permit application is cost prohibitive and forces small wastewater streams to be collected and hauled to commercial treatment facilities. Need general permits with standardized effluent limits for small/routine waste streams (e.g. floor drains, vehicle wash water,...

Response: DEP is continually working to improve its NPDES permitting program by simplifying processes, requesting only necessary information, and issuing clear and understandable permits. Specific recommendations to help DEP meet these objectives are welcomed. DEP agrees that General NPDES Permits save the agency and the regulated community significant amounts of time and money. Five separate General NPDES Permits have been issued for a variety of activities and more are planned. Future General NPDES Permits will address small, routine discharges, as suggested. Floor drains are, however, usually are only one of a number of sources of wastewater in an industrial complex and are normally connected to a treatment facility that is covered by an NPDES permit. Consequently, DEP does not foresee a need to develop a General Permit for discharges from floor drains alone. Vehicle wash water can be generated by a number of different washing processes, many of which do not need NPDES permits. Developing a General Permit for vehicle wash water may be appropriate would be a low priority for development at this time because the number of requests for coverage under such a permit would probably be low.

38
  1. NPDES Permitting
DEP's water quality-based effluent limits incorporate a number of extremely conservative factors and a steady-state model (PENTOXSD). DEP should reduce the conservatism incorporated into the water quality-based process and use an alternate critical low flow such as 30Q5 and a dynamic model such as DYNTOX.

Response: DEP normally uses steady state modeling in its determination of water quality-based effluent limits. Because we do most of our modeling at a

Q7-10 design condition, which is assumed to occur about 1 percent of the time, we generally set other design variables (such as temperature, pH, temperature, and background water quality) at their estimated median values. This procedure generally assures compliance with Section 93.5(b)(3) (see below).

DEP doesn't use dynamic modeling because it is extremely data intensive. However, Section 95.3 allows dischargers to develop and propose the use of alternative modeling procedures, provided the alternative procedures and data are fully documented.

Dynamic modeling techniques will not always result in less stringent effluent limitations. Studies conducted by EPA suggest the outcome is site-specific, and that about half the time (usually on effluent-dominated streams), dynamic modeling results in more stringent effluent limits.

Paragraph (1) of Section 93.5(b) requires that, except where otherwise specified in regulation, water quality criteria be achieved at stream flows equal to or greater than Q7-10. This is why DEP generally uses Q7-10 flow as a basic design condition. Paragraph (3) of the same section states that the Department shall use a combination of design conditions to achieve a minimum 99 percent level of protection

55
  1. NPDES Permitting
DEP uses method detection limits (MDLs) instead of minimum quantitative levels (MQLs) to assess compliance with low level permit limits. Until EPA develops MQLs, DEP should use the quantitation levels developed & used by EPA Region VI and used by the Commonwealth of Virginia.

Response: Rather than convert to an interim compliance level, DEP has agreed to adopt EPA's quantitation levels when they are final.

55
  1. NPDES Permitting
DEP should develop a uniform chemical additive policy which will be clearly codified in regulations. The chemical additive policy for process waters exposed to non-contact cooling water lacks clarity and does not make sense.

Response: DEP believes that codifying a chemical additive policy will restrict implementation flexibility and inhibit the DEP's ability to make responsive adjustments to the policy. DEP will review the existing chemical additive policy in its entirety and improve its clarity. The issue of process waters being exposed to non-contact cooling water will be assessed as part of the overall review effort.

64
  1. NPDES Permitting
NPDES permits often require limits for both concentration and mass loading for a given parameter. This possibly causes double jeopardy in the event of an upset. Permits should be issued with just the more stringent requirements.

Response: Permits often include both concentration- and mass-based effluent limitations because, concentration based limits are needed when the limit is water quality-based, and mass-based limits are needed when the limit is technology-based. DEP uses its discretion when undertaking compliance activities. The potential for double jeopardy is assessed in the context of specific compliance actions.

64
  1. NPDES Permitting
§316 reviews by DEP regions are confusing. Consistent reviews must be ensured.

Response: As a matter of policy, 316(a) reviews are coordinated by Central Office to ensure statewide consistency. These reviews are conducted in accordance with the procedures specified in the Department's guidance document #361-2000-002 - "Evaluation and Process Thermal Discharge 316(a) Federal Water Pollution Control Act." The Department believes that the commentor may have experienced a unique and isolated occurrence and will work with the commentor to resolve this matter if specifics are supplied.

66
  1. NPDES Permitting
Allow point source discharger to opt to achieve equivalent stream results with non-point source reductions. (e.g. reduce pollution by streambank restoration rather than through reducing effluent concentrations.)

Response: The commentor is referring to the possibility of having point/non-point source tradeoffs (a.k.a.: "effluent trading") for nutrients (phosporous and nitrogren), and cites the "Nutrient Reduction Cost-Effectiveness Analysis", which was performed by SRBC on behalf of DEP.

Point/non-point source tradeoffs are probably most feasible when the waterbody being protected is a pollution sink (i.e.; a lake, pond, or impoundment) and the goal is to limit long-term pollutant nutrient loading. They are probably less feasible when the goal is short-term management.

The Bureaus of Water Quality Management (BWQM) and Land and Water Conservation (BLWC) are actively pursuing a trade-off strategy as part of the Chesapeake Bay Program. The main problems identified with the approach are (1) reliably estimating the reductions that can be achieved through non-point source (NPS) controls, and (2) assuring the continuing implementation of the NPS controls. The first is a technical problem that can probably be resolved through more intensive assessment of NPS practices. The second is a policy matter that involves strengthening NPS abatement programs and requirements.

66
  1. NPDES Permitting
Allowable Discharges, §97.82, should clearly state that additional 316(a) studies not be conducted at the time of NPDES permit renewal unless the discharger is proposing to increase the thermal loading to the receiving water. .

Response: Federal regulations at 40 CFR Section 125.72(c) and the note after Section 125.72(f) preclude adoption of state regulatory language that exempts the discharger from submitting information which supports continuance of the alternate thermal effluent limitation. This is reinforced in an EPA legal opinion on Section 316(a) dated February 24, 1982. The Department does not, in those cases where thermal loadings have not increased, require comprehensive studies. Generally, the requirements are for the discharger to demonstrate through basic biological data, that the aquatic community is as good as, or better than that which existed prior to the approval of the alternate thermal effluent limitations. This basic aquatic community sampling can be accomplished with a minimum of effort.

66
  1. NPDES Permitting
DEP issues permits for 5 years, but the permit is often extended well beyond this as DEP reviews a renewed application. The time period should be expanded to ten years.

Response: NPDES permits may be administratively extended beyond the five year permit term if a renewal application is filed in a timely manner and the Department does not take action to reissue the permit. This practice enables DEP to prioritize its permitting workload while allowing the permittee to have continuing coverage under the existing permit. The five-year permit term is established by federal law and it cannot be unilaterally changed by DEP.

66
  1. NPDES Permitting
Industrial Waste Treatment, §97.14-15, should be revised/updated to reflect federal, technology-based treatment requirements.

Response: DEP does not believe that Section 97.14 is outdated or prescriptive. In fact, it encourages pollution prevention approaches to water quality management. DEP agrees that subsections 97.15 (1)-(3) may be redundant and outdated and is developing proposed regulatory revisions. DEP believes that this section should reference federal Effluent Limitations Guidelines (ELGs) and a methodology for developing technology-based effluent limits where federal ELGs have not been promulgated for a particular industry.

66
  1. NPDES Permitting
Multiple spill plans under various programs are unnecessary and burdensome. Develop a uniform format that will allow the same plan to be used for all programs.

Response: DEP agrees that one comprehensive and usable spill plan is preferable to multiple spill plans generated at the request of various DEP programs and will be working to develop a uniform requirement.

66
  1. NPDES Permitting
Permits which dictate facility details are burdensome and inhibit innovative technology. DEP should rely more on performance standards.

Response: Unless limited by state or federal law, DEP agrees that permits should consist of performance-based requirements which allow the permittee to determine how best to meet the terms and conditions of the permit.

66
  1. NPDES Permitting
Prescriptive pretreatment requirement, particularly for pH, imposes disproportionate compliance costs and discourages innovative technologies. Allow more flexible pretreatment requirements.

Response: DEP has not been delegated industrial pretreatment program authority but relies on EPA to directly administer the federal industrial wastewater pretreatment program. This comment refers to section 97.91 which only becomes effective upon delegation of the pretreatment program to DEP. If DEP seeks delegation of the pretreatment program the future, it is recognized that sections 97.91-97.95 would need to be substantially revised.

66
  1. NPDES Permitting
Chemical additives policy has become unduly burdensome. A more reasonable approach would be to require discharge point sampling once or twice to determine correlation between feed rate and discharge concentration. Monthly records could then be maintained to demonstrate the appropriate level of chemical additions are being maintained.

Response: The chemical additive policy is intended to be flexible, yet protective. The policy is structured so that if appropriate data on the additive is presented, and DEP does not respond within 60 days, use of the additive is presumptively approved. As a monitoring tool, DEP only requires records of additive usage to be kept and maintained at the site. It is assumed that the discharger would normally keep usage records as part of normal business operations. Specific effluent limits or more stringent monitoring requirements are imposed only if the proposed quantity and frequency of the chemical use poses a clear threat to the aquatic environment.

73
  1. NPDES Permitting
Effluent limitations based on both concentration limitations and mass limitations subject the permittee to doubling the number of exceedences for a single event. These are also generally more stringent than federal requirements. (See page 450.)

Response: See response to comment #28.

73
  1. NPDES Permitting
Significant reliance is placed on DEP guidance documents which have not been subject to public comment prior to issuance.

Response: Not all water quality management implementation guidances have been subject to public review. More recent implementation guidances and tools, such as PENTOXSD, have been public participated, and the Department plans to provide an opportunity for public review and comment on the technical guidance manuals it revises as part of the Regulatory Basics Initiative process.

79
  1. NPDES Permitting
DEP issues NPDES permits with either a short or no elapsed time between issued and effective date. Permits can arrive at the affected facility after they have become effective, requiring the facility to "instantly" comply. A better method would be to have the effective date of the permit two or three weeks after the date it is issued, giving the permittee time to adjust.

Response: The NPDES permit boilerplate has a dateline entitled "Date Permit Issue" and a dateline entitled "Date Effective". DEP recognizes that there may be legitimate reasons for establishing different permit issuance and effective dates. Regional offices have the flexibility to establish these dates based on the merits and circumstances of each individual case.

85
  1. NPDES Permitting
The cost of Freon for oil & grease analysis under the NPDES program and the only solvent which is currently authorized under 40 CFR 136, has skyrocketed due to the restrictions placed on Freon by the Air Program. States should take the lead in urging EPA to promulgate an alternative solvent.

Response: DEP is currently working with EPA to establish an alternative testing procedure for oil and grease.

85
  1. NPDES Permitting
DEP should modify its existing practices regarding the regulation of Total Residual Chlorine. State-wide limitations for Total Residual Chlorine should only be applied to once through cooling water [25 PA Code § 93.5(f)(1)]. There is no basis for imposing TRC limitations on sanitary discharges and the regulations should be amended to specifically exclude sanitary dischargers from these TRC limitations [25 PA Code §93.5(f)(1)(i)].

Response: TRC effluent limitations for sanitary discharges may be necessary to protect fish and aquatic life. New information suggests that the default limit of 0.5 mg/l may not be appropriate for smaller flow treatment facilities. Water Management will propose an amendment to §93.5(f)(1)(i) to modify or eliminate application of the default limit.

97
  1. NPDES Permitting
Effluent limitations which are below the minimum detection limit are being handled improperly, as most permit writers are addressing such limitations in a more stringent manner than federal policy dictates. DEP should adopt EPRI-developed MQLs or the EPA-derived value of 3.18 x the MDL. In any event, concentrations not quantified at or above the regulatory standard should be reported as "zero" in accordance with EPA guidance.

Response: There is no consistent guidance on implementing the federal language regarding compliance levels. Therefore, DEP's current use of method detection limits is no more stringent than federal applications. Rather than use an interim compliance level, DEP will adopt EPA's quantitation levels when they are final. Concentrations reported as below detection give the Department information on the detection limits achieved in analytical procedures. However, "not detectable" results are currently counted as zero for compliance purposes.

97
  1. NPDES Permitting
In all permits which impose new and more stringent effluent limitations, DEP should utilize compliance schedules (25 PA Code §92.55).

Response: DEP agrees that if new or more stringent effluent limits are imposed that cannot be immediately met, a schedule for meeting those limits should be made part of the permit.

97
  1. NPDES Permitting
Intermittent discharges should be managed using real time management strategies, considering the actual time and amount of discharge.

Response: The "Short Term Discharge of Toxics" guidance that is currently part of the Toxics Management Strategy allows for modified carcinogen based effluent limits for non-continuous discharges. It also allows DEP to waive compliance with chronic fish and aquatic criteria when the expected discharge duration is less than 96 hours. While these provisions are not a "real-time" management strategy, they generally accomplish the same end.

97
  1. NPDES Permitting
Temperature limits imposed by the department are more stringent than any federal limits [25 PA Code §93.7(c)]. The association believes that there is no basis for the 110 degree condition and that the two degree limit is more stringent than any federal requirement.

Response: The 110 degree condition was recently eliminated from the temperature implementation guidance. The 2 degree limit is needed to protect fish and aquatic life from rapid fluctuations in temperature.

97
  1. NPDES Permitting
Chemical additives policy has become unduly burdensome. A more reasonable approach would be to require discharge point sampling once or twice to determine correlation between feed rate and discharge concentration. Monthly records could then be maintained to demonstrate the appropriate level of chemical additions are being maintained.

Response: The chemical additive policy is intended to be flexible, yet protective. The policy is structured so that if appropriate data on the additive is presented, and DEP does not respond within 60 days, use of the additive is presumptively approved. As a monitoring tool, DEP only requires records of additive usage to be kept and maintained at the site. It is assumed that the discharger would normally keep usage records as part of normal business operations. Specific effluent limits or more stringent monitoring requirements are imposed only if the proposed quantity and frequency of the chemical use poses a clear threat to the aquatic environment.

73
  1. NPDES Permitting
The department policy requiring a chlorine study and minimization plan should only be imposed "as necessary".

Response: DEP agrees that a formal chlorine study and minimization plan should not be required in all cases. Appropriate guidance and sample permit conditions will be revised to ensure that a "one size fits all" approach is not perpetuated. DEP will, as a pollution prevention technique, continue to encourage the optimum use of chlorine in amounts necessary to accomplish adequate disinfection without adversely affecting the receiving stream, even when numerical effluent limits are not required. DEP will also encourage consideration of other disinfection processes.

97
  1. NPDES Permitting
There have been significant inconsistencies between DEP regions regarding periodic maintenance situations (e.g. acid cleaning). All DEP regions should be instructed to pre-approve the terms and conditions of these periodic maintenance situations in Part C of the NPDES permits.

Response: The current practice of approving periodic maintenance activities outside of the permit was thought to more flexible and responsive. DEP, however, agrees to explore developing model permit conditions, in conjunction with the electric generating industry, that could be used to ensure statewide consistency and provide an approved maintenance program for the life of the permit.

97
  1. NPDES Permitting
WQBELs should only be included in NPDES permits when there is a reasonable likelihood to exceed water quality criteria for that parameter. DEP should formally adopt a consistent approach to determine when there is a reasonable potential for a parameter to exceed a water quality standard.

Response: The existing Toxics Management Strategy provides a "reasonable potential" test. A parameter is identified as being "of concern" only when (a) there are technology-based effluent limits, or (b) the existing average monthly discharge concentration is within 50 percent of the expected WQBEL for the parameter. Field office staff have wide discretion in applying the second criterion. If sufficient data exists to properly characterize the discharge, the criterion need not be applied.

97
  1. NPDES Permitting
Zinc and Chromium limitations should not be imposed when the chemicals are not present among the facility's water treatment chemicals.

Response: DEP fundamentally agrees that effluent limits should not be imposed on cooling tower blowdown for chemicals that are not used for cooling tower maintenance. Both EPA regulations and DEP guidance allow a demonstration that priority pollutants, including chromium and zinc, are not present in the discharge in lieu of chemical specific limitations and associated monitoring. DEP will ensure that its permit writers are aware of this option.

97
  1. NPDES Permitting
PA has not adopted the "upset" defense to permit violations that is provided by federal requirements [40 CFR 122.41(n).

Response: DEP believes that the "upset defense" allowed by federal regulations is very limited and cannot provide the relief expected by the regulated community. The provision also invites lengthy litigation and potentially delays compliance. DEP intends to continue its policy of not recognizing the "upset defense" as a basis for noncompliance.

98
  1. NPDES Permitting
Both the applicant and DEP staff should have a clear understanding of what type of violations will trigger a hold on a permit application for another project.

Response: DEP generally agrees with this comment and will investigate where more detailed guidance is necessary.

100
  1. NPDES Permitting
Paperwork is excessive; requiring applicants social security number is unnecessary.

Response: It is DEP's intent to only ask for necessary and useful information in NPDES permit applications. DEP is currently reviewing the application requirements once again to ensure that only pertinent information is requested. DEP does not ask for the social security number of the applicant on any of it's NPDES application forms.

100
  1. NPDES Permitting
Permit review/issuance should be done locally and eliminate Harrisburg entirely since they are approving applications per the local office?

Response: Central Office issues no individual NPDES permits. These permits have been issued in the regional offices since Pennsylvania assumed responsibility for the NPDES program in 1978.

100
  1. NPDES Permitting
Review and processing needs to be streamlined.

Response: (The comment was specific to single residence sewage treatment plants.) The process for obtaining a permit for a single residence sewage treatment plant has been substantially simplified by the issuance of a General Permit on February 5, 1994. The commentator also recommended that DEP allow the concurrent review of planning modules and NPDES permit applications for single residence sewage treatment plants. DEP currently allows, and in fact encourages, the simultaneous submission of the planning module and the permit application or notice of intent.

100
  1. NPDES Permitting
The individual NPDES permit for controlling soil erosion from a construction activity seem to have unnecessary/redundant steps in the process. The landowner should be allowed to begin earthmoving activities upon receiving the individual NPDES permit approval form from the County Soil Conservation District without waiting for Act 537 planning module approval.

Response: DEP agrees that earthmoving activities may begin prior to receiving Act 537 planning module approval. The current practice will be reviewed and revised appropriately.

100
  1. NPDES Permitting
Very high cost with no certainty that proposed permit levels can be achieved.

Response: This comment was made based on the recent receipt of a draft NPDES permit. The commentator indicated they intended to work with the regional office to address their concerns. In general, NPDES permit effluent limits are based on the more stringent of technology-based or water quality control requirements. Permit limitations will, at times, require that capital expenditures be made to meet water quality protection requirements.

104
  1. NPDES Permitting
DEP should ensure that when more stringent requirements are imposed, the NPDES permits will include a reasonable compliance schedule and not result in immediate violations.

Response: DEP agrees. The process described in the comment is DEP's current practice.

105
  1. NPDES Permitting
Monitoring requirements should be modified so that parameters with a substantial operating history without violations will have reduced monitoring frequency.

Response: Monitoring requirement are currently established based on analytical cost, volume and frequency of the discharge, variability of the discharge, and type of parameter. Since federal regulations require effluent limits to be expressed as average monthly values, a minimum of two samples per month is usually specified to obtain a valid monthly average. DEP agrees, however, that compliance history could also be an important factor in determining monitoring frequency. DEP will consider including this factor in the next update of the self-monitoring guidance.

105
  1. NPDES Permitting
Federal regulations allow for exclusions from NPDES permit requirements. PA should not adopt an exclusion for introduction of sewage, industrial wastes or other pollutants into privately or publicly owned treatment works by indirect dischargers.

Response: DEP agrees with this comment.

107
  1. NPDES Permitting
The definition of "toxic pollutant" (25 PA Code §92.1) could be considered beyond minimum federal requirements. However, it would be irresponsible and a violation of the public trust to limit the control of toxic chemicals to an outdated, limited list

Response: The Department does not intend to limit the definition of toxic substances to a particular list, but to address any substance that has known impacts on the waters of the Commonwealth.

107
  1. NPDES/RESIDUAL WASTE
(A response to this comment has been provided by the Bureau of Land Recycling and Waste Management) 103
  1. Part II Permits
Lengthy permit reviews are unnecessary and burdensome. Review time should be expedited through contract services, limiting reviews to non-engineering items, combining Part I and Part II permits, developing industry experts and allowing faxing of supplemental permit information to DEP.

Response: DEP agrees that lengthy reviews of Part II permit applications are unnecessary. On January 27, 1996 DEP published its Policy for Conducting Part II Permit Application Reviews which is intended to simplify the application review process and accelerate Part II Permit issuance. The Clean Streams Law designates the Department as the approving authority for Part II Permits. DEP further believes that is has a responsibility under the law to conduct more than just an administrative review of the permit application, especially when public money is being used to finance a project. DEP will currently accept the concurrent submission of Part I and Part II permit applications to expedite project approval. Prior to submitting the application simultaneously, the applicant must consider the risk and expense of designing a wastewater treatment system without first receiving final effluent limits in a Part I permit. DEP will accept FAXed revisions to Part II permit applications. If the revisions are extensive, DEP may request the FAX be followed by a hard copy of the revisions. DEP agrees with the concept of developing industry experts. Regional staff currently share expertise that may have been gained through previous experience with a particular industry. DEP will consider ways to expand and enhance this informational network.

66
  1. Part II Permits
DEP's proposed Part II review policy does eliminate the need for review of treatment plant designs which are developed, approved and stamped by a PE However, it is simply unnecessary for the Department to review diagrams and specification when a PE has designed and stamped them.

Response: DEP is obligated under the Clean Streams Law to approve plans, designs, and relevant data for the construction of wastewater treatment facilities. DEP's January 27, 1996 Policy for Conducting Part II Permit Application Reviews provides the framework for simplifying these reviews to the extent possible.

97
  1. Part II Permits
Small changes to treatment systems should be exempt from Part II permits and detailed review process being applied to any modification to a discharger's wastewater treatment operations.

Response: DEP's current practice is to allow minor revisions to treatment facilities without requiring a Part II permit amendment. The permittee must advise DEP of the proposed modification so it can be made part of the public record. Significant modifications to a permitted facility, however, do require an amendment to the Part II permit.

97
  1. Part II Permits
Part II permit requirements impose disproportionate compliance costs, it requires needless paper and slows the permitting process. DEP should not require a detailed review/approval of the design of any industrial wastewater facility if the facility has been designed by a PE

Response: DEP is obligated under the Clean Streams Law to approve plans, designs, and relevant data for the construction of wastewater treatment facilities. DEP's January 27, 1996 Policy for Conducting Part II Permit Application Reviews provides the framework for simplifying these reviews to the extent possible. The policy instructs DEP staff to generally accept industrial wastewater treatment projects with only a minimal amount of review.

103
  1. PENNVEST
Final payments on PENNVEST funded projects have been held up due to DEP inspector to promptly inspect and promptly respond to an owners/engineers request for project certification of completion.

Response: DEP strives to complete all final project inspections within 30 days of receipt of a project completion notice from PENNVEST staff. This goal is usually met. It has been determined that most cases of final inspection later than 30 days from completion notice have been the result of disputes between the owner and the contractor or consulting engineer and that PENNVEST staff had not been notified of project completion because of the outstanding issues. Final inspections cannot be conducted until such disputes are resolved and notice of completion is received by PENNVEST.

62
  1. Sewage Sludge Land Application
(A response to this comment has been provided by the Bureau of Land Recycling and Waste Management) 28
  1. Special Protection Waters
This program is used as a method of restricting development. These regulations may increase the operating costs of municipal governments. The selection process is too liberal.

Response: EPA disapproved portions of PA's Special Protection Waters Program as part of the Triennial Review of Water Quality Standards in June 1994. To respond to this disapproval, the Department initiated a regulatory negotiation (Reg Neg) process among more than 20 stakeholders to provide the Department with consensus recommendations on antidegradation regulations and implementation issues. The Department will use the Reg Neg recommendations to revise Antidegradation program rules. The public will then be provided the opportunity to comment on the draft regulations and policy. The Department will consider all comments in finalizing the program.

59
  1. Special Protection Waters
"Measurable change" should be evaluated on the overall impact on the water body. Quarrying operations that pump groundwater many enhance the flow of the receiving water body and have a positive impact on pH and these beneficial impacts should be weighted against any minor addition to sediment in the water body when evaluating "measurable change".

Response: The Department's Special Protection Waters Implementation Handbook discusses looking at the physical chemical and biological integrity of Special Protection waters in a holistic manner. "Enhanced" flow may or may not be beneficial to a stream. The same thing holds true with regard to changes in pH levels.

60
  1. Special Protection Waters
PA Aggregate & Concrete Association had no input into the Special Protection Handbook. This handbook should be subject to public notice and participation.

Response: The First Edition of the Special Protection Waters Implementation Handbook was designed, in looseleaf format, as a working "draft" which the Department intended to revise based on comments received from staff and the public who used the document in their interaction with the antidegradation program. The Second Edition, which will be based on the outcome of the Reg Neg, will be made available in draft form for public review.

60
  1. Special Protection Waters
Program is inappropriately used to block development. PA Aggregate & Concrete Association was not selected to participate in the reg-neg and, therefore, has no voice in this effort.

Response: Any Association not a member of the Reg Neg process can attend meetings as an observer and make its concerns known through any of the organizations or individuals who are members. The resulting proposed regulation and policy changes will also be open for public comment.

60
  1. Special Protection Waters
Anti-degradation should be defined consistent with EPA and separated from use categories.

Response: These issues are being considered by the Reg Neg committee. See also response to comment #70.

66
  1. Special Protection Waters
A de minimus permit threshold should be established where SEJ would not be required for discharges to high quality streams.

Response: This issue is currently being considered by the Reg Neg committee. See also response to comment #70.

00
  1. Special Protection Waters
Appendix 5, Section One, of the DEP Special Protection Waters Implementation Handbook must be revised to indicate that other equivalent management practices approved by DEP may be used in place of those listed in this section.

Response: The Handbook will be revised at the conclusion of the Reg Neg process to ensure that its content reflects any changes made to the program as a result of that process.

100
  1. Special Protection Waters
DEP should continue to evaluate streams based on a watershed approach rather than a permit by permit approach

Response: This issue is currently being considered by the Reg Neg committee.

100
  1. Special Protection Waters
Objective, reasonable and cost effective social and economic justification criteria and standards must be established.

Response: See response to comment #77.

100
  1. Special Protection Waters
Pending permit applications associated with streams being considered for an upgraded designation should be reviewed based on the existing designation of that stream until the stream redesignation becomes an adopted final regulation.

Response: See response to comment #77.

100
  1. Special Protection Waters
Regulations must be revised to include a provision that land use and economic development considerations are taken into account during the special protection stream evaluation process.

Response: See responses to comments #70 and #77.

100
  1. Special Protection Waters
Rulemaking petition policy must be revised to include:
  1. petitioner must be required to submit current, actual water quality data to support upgrade;
  2. DEP must convene a pre-evaluation meeting with all interested parties prior to the acceptance and review of the petition;
  3. DEP must notify, by first class mail, all applicants with pending applications or existing discharge permits; and
  4. DEP shall send notice of acceptance of a petition for review to, and request information from, local and county governments and any persons known to the DEP to own or have interest in property located within the watershed.

Response: See response to comment #77.

100
  1. Special Protection Waters
The existing definition of exceptional value waters exceeds federal requirements. The definition should be: "High quality or ecologically unique waters which constitute an outstanding national resource, such as waters of national or state parks and wildlife refuges, and other waters of exceptional recreational or ecological significance."

Response: Revisions to the definitions of both High Quality and Exceptional Value Waters are being reconsidered by the Reg Neg committee.

100
  1. Special Protection Waters
The prohibition of general permits on special protection waters should be eliminated [§92.81(a)(8)].

Response: The Department recognizes the utility of using properly conditioned general permits in Special Protection Waters. Non-NPDES general permits are already allowed to accommodate activities like minor encroachments in Special Protection waters. The Reg Neg committee is considering possible changes to Chapter 92 to allow the use of NPDES General Permits in Antidegradation waters.

100
  1. Special Protection Waters
With the use of sound technical practices, discharges which result in no adverse measurable change to long-term water quality should be allowed in streams designated as exceptional value.

Response: Current practice in Pennsylvania allows for the discharge of non-degrading effluents into Exceptional Value waters. The Reg Neg committee is currently evaluating this issue.

100
  1. Special Protection Waters
DEP should wait for reg-neg group and not remove the prohibition of issuing general permits for special protection watersheds.

Response: The Department will use the recommendations generated by the Reg Neg committee to make any changes to regulations or guidance relating to the antidegradation program.

107
  1. Spill Planning
PA's Preparedness, Prevention and Contingency Plans duplicate work done for federal purposes. This is needless additional work and expense.

Response: DEP agrees that one comprehensive and usable spill plan is preferable to multiple spill plans generated at the request of various DEP programs. DEP's objective is to consolidate the similarities of the State and Federal pollution incident prevention and emergency response plans into one overall program. Industrial and commercial installations which have the potential for causing accidental pollution of air, water, or land, or for endangering public health and safety are required to develop and implement Preparedness, Prevention and Contingency (PPC) Plans which encompass all DEP program requirements. For storage tank facilities with above ground storage capacity of greater than 21,000 gallons, a Spill Prevention Response (SPR) plan is required. The SPR plan, in addition to the contents of a PPC plan, requires a specific downstream notification requirement. Those storage tank facilities that already have a PPC plan need only to update the PPC plan and include the downstream notification requirement. DEP strongly recommends that regulated facilities consolidate all required plans into one single document. For those facilities required to develop plans under SARA Title III, DEP allows deviation from the PPC plan suggested format to ensure consistency with the SARA Title III plans provided that all necessary information is included in one plan.

69
  1. Storage Tanks
Places an unfair burden on individuals using the oil for purposes other than space heating ... do not see the environmental basis for eliminating registration and insurance of oil tanks for space heating and not for oil tanks used for other purposes.

Response: In an effort to achieve consistency with the federal storage tank program, the Department is proposing to delete the definition of "heating oil for consumptive use" from Chapter 245 " Administration of the Storage Tank and Spill Prevention Program". This will effectively deregulate all tanks that store heating oil which is consumed on the premises where stored.

19
  1. Storage Tanks
Closure guidelines are overly detailed, complicated, prescriptive, excessive, costly and do not provide the flexibility of the federal UST closure regulations. Also, guidance documents are being implemented by DEP and environmental consultants as if they were regulations.

Response: Owners and operators of regulated UST systems who wish to permanently close must comply with 40 CFR Part 280, Subpart G -- "Out-of-Service UST Systems and Closure". The principal objective of these federal requirements is to identify and contain existing contamination and to prevent future releases from UST systems no longer in service. These regulations became effective on December 22, 1988, and were adopted by the Department on September 21, 1991.

Since the effective date of the federal closure regulations for USTs and with the passage of the Storage Tank and Spill Prevention Act, there have been numerous inquiries regarding requirements and appropriate practices for the proper closure of USTs. Because the federal regulation is so nebulous, the Department, as most other states, developed a "Closure Requirements for Underground Storage Tank Systems" document to supplement the regulation. The Storage Tank Advisory Committee had the opportunity to review and comment on the document during its development and indicated that the final product was comprehensive and represented a very reasonable approach to closure.

The fact of the matter is, the closure is very complex and involves a number of activities including soil excavation, classification of wastes, on-site storage of contaminated soil, tank cleaning, tank removal, waste transportation, waste disposal and treatment and release reporting. The closure document represents a compilation of all requirements and appropriate practices for the proper closure of USTs in Pennsylvania. The Department belives that adhering to this guidance will result in compliance with all applicable federal and state laws and regulations.

While the document is likely to apply in total to the vast majority of closures, the Department recognizes that the guidance cannot address every closure situation. Therefore, flexibility is provided for in that variations for site specific conditions may be discussed with the appropriate DEP regional office. This is clearly stated on page 1 of the closure document.

38
  1. Storage Tanks
Spill/release reporting requirements are more stringent than federal requirements with regards to "reportable quantity" for various materials.

Response: The Department proposes to modify the definition of Reportable Release in Section 245.1 to be consistent with 40 CFR Part 280, Subpart E, Section 280.53.

38
  1. Storage Tanks
The requirements of Act 32 & Chapter 245.2 regarding UST that are part of an emergency generator system at nuclear generating facilities exceeds federal standards, and the standards of the surrounding states of NJ, NY, DE and MD.

Response: The Department agrees and will be proposing revisions to Chapter 245 "Administration of the Storage Tank and Spill Prevention Program" that will adopt the federal deferral for these tanks.

41
  1. Storage Tanks
"Reportable Releases" are more stringent that federal requirements. The language stating "of less than 25 gallons" and "of less than 5 gallons" should be deleted. (Section 245.1 (ii) and (iii).)

Response: The Department proposes to modify the definition of Reportable Release in Section 245.1 to be consistent with 40 CFR Part 280, Subpart E, Section 280.53.

54
  1. Storage Tanks
Above ground tanks also require a Spill Prevention and Response Plan. This is one of many spill plans a manufacturer must keep on file and keeping multiple plans is often confusing. Integrate spill planing.

Response: The statutory basis for the Spill Prevention and Response Plan is the Storage Tank and Spill Prevention Act (Act 32). The Department recognizes the similarities of the state and federal pollution incident prevention and emergency response plan requirements. To avoid duplication, regulated storage tank facilities are encouraged to consolidate emergency response plans into a single document.

54
  1. Storage Tanks
No federal program to regulate above ground storage tanks. As such, PA has implemented a program without a federal model. PA above ground tank program is clearly a case of over regulation since any tank greater than 250 gallon capacity are required to be regulated. The definition should be modified to exempt those tanks that pose no threat to the environment in the event that the tank leaks.

Response: Specific requirements for aboveground storage tanks, including minimum sizes, were established by the Legislature in the Storage Tank and Spill Prevention Act (Act 32). Implementation of Act 32 does not require a federal companion regulation. Where federal regulations do exist, the Department considers them but is still held to the standards set by Act 32.

54
  1. Storage Tanks
Act 32 and the regulations propose large storage tanks be taken out of service every ten years. This requirement in the legislation should be amended to reflect nationally recognized codes and standards of practice.

Response: The Department agrees that Act 32 does establish ten year out-of-service inspection requirements for aboveground storage tanks. This requirement can only be changed by legislation and is not a regulation or policy issue to be addressed in this initiative.

66
  1. Storage Tanks
AST regulation goes beyond federal requirements. DEP should work with the legislature to defer implementation of any AST regulations until federal requirements are imposed.

Response: The Storage Tank and Spill Prevention Act (Act 32) specifically requires that the Department establish a regulatory program for aboveground storage tanks, and Act 32 establishes minimum program requirements which must be addressed in the regulatory program. Implementation of Act 32 does not require a federal companion regulation. Where federal regulations do exist, the Department considers them but is still held to the standards set by Act 32.

66
  1. Storage Tanks
Definition of reportable releases from small storage tanks is unnecessary. Modify definition in Section 245.1 to remove "of less than 25 gallons" from (ii) and "of less than 5 gallons" from (iii).

Response: The Department proposes to modify the definition of Reportable Release in Section 245.1 to be consistent with 40 CFR Part 280, Subpart E, Section 280.53.

66
  1. Storage Tanks
PA corrective action regulations are more stringent than federal requirements, since they apply to both USTs and ASTs. Also, spill plans are just one of a number of spill plans required of many large facilities. Consolidating spill plans would be more cost effective and make them more useful.

Response: The statutory basis for the Spill Prevention Response Plan is the Storage Tank and Spill Prevention Act (Act 32). The Department recognizes the similarities of the state and federal pollution incident prevention and emergency response plan requirements. To avoid duplication, regulated storage tank facilities are encouraged to consolidate emergency response plans into a single document.

Sections 301(a)(5) and (6) of the Storage Tank and Spill Prevention Act authorize the Department to develope regulations which require responsible parties to undertake corrective action in response to a release from an AST. Since releases from AST and UST systems impact the environment in a similar fashion, and because the corrective action process and actions that should be undertaken are similar, the Department believes that AST and UST corrective actions could best be accommodated in one regulation, rather than two regulations that say the same thing.

66
  1. Storage Tanks
PA regulation of aboveground storage tanks is more stringent than federal law because federal requirements only address underground storage tanks.

Response: The Storage Tank and Spill Prevention Act (Act 32) specifically requires that the Department establish a regulatory program for aboveground storage tanks, and Act 32 establishes minimum program requirements which must be addressed in the regulatory program. Implementation of Act 32 does not require a federal companion regulation. Where federal regulations do exist, the Department considers them but is still held to the standards set by Act 32.

66
  1. Storage Tanks
Repair by third party contractors inhibits innovative technology and may add considerable cost to facility maintenance. A certification program should be established whereby the owner/operator can perform certain minor repairs.

Response: The current regulations do allow an owner or operator to perform minor repairs that fall under the term "maintenance" and that do not constitute major or minor modifications. The Act establishes requirements to use certified installers to install or modify storage tanks; however, the certified installer does not need to be a third party contractor and may be an employe of the tank owner.

66
  1. Storage Tanks
Section 245.22 (a) & (b) are inconsistent when comparing concrete thicker than 6 inches as in 245.22(a) with a permeability of 10-7, as concrete has a permeability of 10-5. The permeability standard in (b) is not consistent with the UST standard for "secondary containment".

Response: The purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations which may be more stringent than equivalent federal regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rulemaking. The comment, therefore, would be more appropriately addressed during the public comment period on this regulation package. The Department will consider this comment at that time.

66
  1. Storage Tanks
Section 245.503(a) - Variances. The term "fully" as it relates to the term "protect" raises a significant barrier to establishing a meaningful variance process. The term "fully" should be deleted and replace with the term "adequately".

Response: The purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations which may be more stringent than equivalent federal regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rule making. The comment, therefore, would be more appropriately addressed during the public comment period on this regulation package. The Department will consider this comment at that time.

66
  1. Storage Tanks
Section 245.525(c) & (d) require costly, redundant technologies that do not raise the level of protection. Section (e)(2) establishes a ten year time period for upgrade of all piping to meet (c) and (d). Revise this to (c) or (d) and eliminate the 10 year time frame to allow for an orderly replacement of the equipment.

Response: The purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations which may be more stringent than equivalent federal regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rule making. The comment, therefore, would be more appropriately addressed during the public comment period on this regulation package. The Department will consider this comment at that time.

66
  1. Storage Tanks
Section 245.532 is ambiguous. Exterior coatings should be maintained on a basis consistent with prudent tank maintenance and management practices defined in nationally recognized codes.

Response: The purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations which may be more stringent than equivalent federal regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rule making. The comment, therefore, would be more appropriately addressed during the public comment period on this regulation package. The Department will consider this comment at that time.

66
  1. Storage Tanks
Section 245.540, Overfill prevention requirements, requires retrofit on existing tanks with a gauge or monitoring devices within three years of the effective date of the subchapter. This compressed timetable, which penalizes operations with large numbers of tanks, should be eliminated or extended to allow for a more systematic allocation of capital to comply.

Response: The purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations which may be more stringent than equivalent federal regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rule making. The comment, therefore, would be more appropriately addressed during the public comment period on this regulation package. The Department will consider this comment at that time.

66
  1. Storage Tanks
Section 245.541, Containment requirements for above ground storage tank systems requires two tests for emergency containment areas that are redundant, unnecessary and provide no additional protection to the environment.

Response: The purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations which may be more stringent than equivalent federal regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rule making. The comment, therefore, would be more appropriately addressed during the public comment period on this regulation package. The Department will consider this comment at that time.

66
  1. Storage Tanks
Storage tank repairs that are required to be made by certified installers instead of the owner/operator inhibits innovative technology and adds unnecessary costs. DEP should establish a certification program to enable minor repairs to be performed by the owner/operator.

Response: The current regulations do allow an owner or operator to perform minor repairs that fall under the term "maintenance" and that do not constitute major or minor modifications. The Act establishes requirements to use certified installers to install or modify storage tanks; however, the certified installer does not need to be a third party contractor and may be an employe of the tank owner.

66
  1. Storage Tanks
Under Act 32, DEP assumed the authority to regulate intra-facility pipelines by expanding the definitions of aboveground storage tank facility. This definition should be limited to those tanks, piping and appurtenances found within the dike wall.

Response: The current regulatory term for "Storage tank facility" is identical to the definitional term in Act 32. The term includes intra-facility pipelines. The regulatory and the legislative term applies to both underground and aboveground tanks. The Department has proposed a regulatory change which states, "The term does not encompass portions of a facility that do not contain storage tank systems". " Storage tank system", is defined in Chapter 245, "Administration of the Storage Tank and Spill Prevention Act"

66
  1. Storage Tanks
UST regulations are outdated, confusing and inconsistent with the law. They should be revised to reflect Act 16.

Response: The Department is recommending revisions to Chapter 245 "Administration of the Storage Tank and Spill Prevention Act" which will be consistent with Act 16. These revised regulations will be considered by the Environmental Quality Board in the summer of 1996.

66
  1. Storage Tanks
ASTs are not regulated by federal law. Corrective action, release reporting requirements, and repair by a certified third party are all more stringent than federal requirements.

Response: The Storage Tank and Spill Prevention Act (Act 32) specifically requires that the Department establish a regulatory program for aboveground storage tanks and Act 32 establishes minimum program requirements which must be addressed in the regulatory program. Implementation of Act 32 does not require a federal companion regulation. Where federal regulations do exist, the Department considers them but is still held to the standards set by Act 32.

Sections 301(a)(5) and (6) of the Storage Tank and Spill Prevention Act authorize the Department to develop regulations which require responsible parties to undertake corrective action in response to a release from an AST. Since releases from AST and UST systems impact the environment in a similar fashion, and because the corrective action process and actions that should be undertaken are similar, the Department believes that AST and UST corrective actions could best be accommodated in one regulation, rather than two regulations that say the same thing.

77
  1. Storage Tanks
Spill plan is more stringent than federal requirements. Also, this plan is but one of several our facility needs to prepare. Consolidation of spill plans would be very cost effective.

Response: The statutory basis for the Spill Prevention and Response Plan is the Storage Tank and Spill Prevention Act (Act 32). The Department recognizes the similarities of the state and federal pollution incident prevention and emergency response plan requirements. To avoid duplication, regulated storage tank facilities are encouraged to consolidate emergency response plans into a single document.

77
  1. Storage Tanks
DEP has chosen to issue guidance documents to the regulated community to accomplish its compliance objectives. DEP is bypassing the established regulatory development process, including public participation, and give the guidance documents the weight of regulations. DEP should follow the procedures for developing regulations and only use guidance documents to assist the regulated community in complying with the regulations.

Response: In section 107 (b), Act 32 grants the Department the authority to "develop and implement policies, procedures and forms as may be necessary and appropriate in order to administer and obtain compliance with [Act 32], or the rules and regulations promulgated pursuant to [Act 32], and permits issued [under Act 32]."

The Department generally seeks the advice and comment of the Storage Tank Advisory Committee (STAC) when developing such documents. The STAC is an advisory body created by section 105 of Act 32 and represents a wide range of persons and organizations interested in or impacted by the regulation of storage tanks in the Commonwealth.

85
  1. Storage Tanks
Act 32 Section 903 requires annual public notice to all downstream municipalities, water companies and industrial users within 20 miles of the facility containing registered storage tanks containing hazardous materials. The downstream reporting requirements is a redundant effort and it is recommended that this downstream notification requirement be eliminated.

Response: The annual public notice is a statutory requirement of the Storage Tank and Spill Prevention Act (Act 32) and cannot be amended by this initiative.

87
  1. Storage Tanks
DEP's definition of oil for consumptive use (PA Code 25 245.1) is more stringent than EPA's definition (40 CFR 280.12). DEP should adopt EPA's definition.

Response: The Department agrees and has proposed deleting the definition of "heating oil for consumptive use" in Chapter 245 "Administration of the Storage Tank and Spill Prevention Act".

87
  1. Storage Tanks
DEP should adopt EPA's spill notification requirements/ "reportable quantity" language found in 40 CFR 280.53.

Response: The Department proposes to modify the definition fo Reportable Release in Section 245.1 to be consistent with 40 CFR Part 280, Subpart E, Section 280.53.

87
  1. Storage Tanks
The definition of motor fuel should include any petroleum-based fuel used in a stationary motor such as an emergency generator. DEP should exempt above ground tanks <1,100 gallons storing heating oil that powers an emergency generator.

Response: Motor fuel is specifically defined in federal regulations as a petroleum based substance that is motor gasoline, aviation gasoline, No1 or No2 diesel, or any grade of gasohol, and is typically used in the operation of a motor engine. The Department agrees with and has adopted this federal definition.

Act 16 exempts aboveground heating oil tanks regardless of size as long as the heating oil is used on the premises where stored. At present this exemption only applies to heating oil used for space heating. The Department has proposed revisions to Chapter 245 "Administration of the Storage Tank and Spill Prevention Act" that would remove the space heating requirement and effectively exempt aboveground heating oil tanks < 1,100 gallons regardless of use provided the heating oil is used on the premises where stored.

87
  1. Storage Tanks
DEP should consider deferring storage tanks containing radionuclides from regulation to be consistent with federal regulations.

Response: The Department agrees and will be recommending revisions to Chapter 245 "Administration of the Storage Tank and Spill Prevention Program" that will adopt the federal deferral for these tanks.

95
  1. Storage Tanks
AST regulations, which are currently being developed by the department, should be no moremore stringent than existing requirements.

Response: One purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations which may be more stringent than equivalent federal regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rulemaking. The comment, therefore, would be more appropriately addressed during the public comment period on the AST regulation package. The Department will consider this comment at that time.

97
  1. Storage Tanks
DEP's definition and interpretation of the heating oil tank exclusion is more stringent than that adopted by EPA. All tanks used for storing heating oil for consumptive use on the premises should be excluded from the definition of USTs.

Response: The Department agrees and has proposed deleting the definition of "heating oil for consumptive use" in Chapter 245 "Administration of the Storage Tank and Spill Prevention Act". This will effectively exempt all underground heating oil tanks regardless of use as long as the heating oil is consumed on the premises where stored.

97
  1. Storage Tanks
DEP's definition of "unreportable release" is overly stringent and unduly burdensome [25 PA Code Section 245.1].

Response: The Department proposes to modify the definition of Reportable Release in Section 245.1 to be consistent with 40 CFR Part 280, Subpart E, Section 280.53.

97
  1. Storage Tanks
DEP should be consistent with EPA's release detection requirements for USTs which store fuel solely for use by emergency power generators.

Responses: The Department agrees and will be proposing revisions to Chapter 245 "Administration of the Storage Tank and Spill Prevention Program" that will adopt the federal deferral for these tanks.

97
  1. Storage Tanks
DEP should not attempt to regulate storage tanks via guidance documents and policy and adhere to the regulatory development procedures.

Response: In section 107(b), Act 32 grants the Department the authority to "develop and implement policies, procedures and forms as may be necessary and appropriate in order to administer and obtain compliance with [Act 32], or the rules and regulations promulgated pursuant to [Act 32], and permits issued [under Act 32]."

The Department generally seeks the advice and comment of its Storage Tank Advisory Committee (STAC) when developing such documents. The STAC is an advisory body created by section 105 of Act 32 and represents a wide range of persons and organizations interested in the regulation of storage tanks in the Commonwealth.

97
  1. Storage Tanks
DEP should recognize the federal deferral for emergency diesel fuel tanks at nuclear power plants [40 CFR §280.10(c)(3).]

Response: The Department agrees and will be proposing revisions to Chapter245, "Administration of the Storage Tank and Spill Prevention Program" that will adopt the federal deferral for these tanks.

97
  1. Storage Tanks
Requirements for certified installers to conduct all tank handling activities are costly and more stringent than the federal regulations. [25 PA Code §245.1]

Response: The Storage Tank and Spill Prevention Act (Act 32) specifically establishes requirements to use certified installers. This requirement cannot be amended through this initiative.

97
  1. Storage Tanks
Facility owners must notify downstream users annually, there is no comparable federal requirement.

Response: The annual public notice is a statutory requirement of the Storage Tank and Spill Prevention Act (Act 32) and cannot be amended by this initiative.

98
  1. Storage Tanks
PA's registrations, permits, an payment of annual registration fees is in excess of federal requirements.

Response: The authority to collect registration fees is established in Section 303 of the Storage Tank and Spill Prevention Act (Act 32). Since the purpose of the regulatory basics initiative is to review existing regulations for equality with existing federal regulations, the comment goes beyond the scope of the initiative. Additionally, to date, the Department has not adopted any permitting regulations for underground or aboveground storage tanks.

98
  1. Storage Tanks
PA has release confirmation, release reporting, and corrective action requirements that are more stringent than federal requirements.

Response: Subchapter 245.301-245.313 establishes release reporting, release confirmation and corrective action requirements for owners and operators of underground and aboveground storage tanks as authorized by the Storage Tank and Spill Prevention Act. This subchapter applies to those underground storage tanks regulated by EPA. While this subchapter is more stringent in some minor areas, it is also less stringent in others. Where the regulation is more stringent, the Department is recommending revisions, where thought appropriate. This subchapter was developed to provide for a more "streamlined" and flexible approach to corrective action than the feds had established in 40 CFR Part 280, Subparts E and F.

98
  1. Storage Tanks
PA requires notification of LEPC, PEMA and water users within 20 miles downstream if a spill enters the water. Federal regulations limit notification to implementing agency.

Response: The release notification is a statutory requirement of the Storage Tank and Spill Prevention Act (Act 32) and cannot be amended by this initiative. Act 32 requires the owner or operator of a storage tank to immediately notify the county emergency management agency, the Pennsylvania Emergency Management Agency and the Department upon the occurrence of a release.

98
  1. Storage Tanks
PA requires that all work, other than routine maintenance, must be performed by a certified installer. This is in excess of federal requirements.

Response: The Storage Tank and Spill Prevention Act (Act 32) specifically establishes requirements to use certified installers.

98
  1. Storage Tanks
Requires notification by phone within two hours of a reportable spill. Federal requirements is "within 24 hours."

Response: The Department proposes to modify Section 245.305(a) to 24 hours.

98
  1. Storage Tanks
Spill Prevention Response Plan requirements are more stringent than federal requirements:
  1. applies to all above ground facilities greater than 21,000 gallons, while federal requirements address on those tanks capable of discharging to navigable waters.
  2. DEP requires copies of plans be submitted to county & municipal agencies and DEP annually; EPA requires submittal only when requested; and
  3. DEP requires notification of users 20 miles downstream, no similar federal requirement.

Response: The statutory basis for the Spill Prevention and Response Plan is the Storage Tank and Spill Prevention Act (Act 32) and cannot be amended by this initiative. Act 32, not regulation, sets forth applicability, submission requirements, and notification requirements for the Spill Prevention and Response Plan.

98
  1. Storage Tanks
The level of certification is in excess of federal requirements.

Response: Provisions for the certification program are contained in the Storage Tank and Spill Prevention Act (Act 32) and cannot be amended by this initiative. Act 32, not regulation, establishes minimum program requirements that take precedence over Federal regulations.

98
  1. Storage Tanks
Coordinate PA's regulations with EPA's regulations governing UST closures (40 CFR Part 280). PA's regulations are overly detailed, complicated and prescriptive. (i.e. PA regulations require third party certified tank inspectors, where it would be more efficient to hire a full time tank inspector.)

Response: PA's regulations are predicated on specific requirements in the Storage Tank and Spill Prevention Act (Act 32) and cannot be amended by this initiative. Act 32 establishes a program that places reliance on Department certified industry inspectors.

The Department adopted the federal closure regulations at 40 CFR Part 280, Subpart G, on September 20, 1991.

101
  1. Storage Tanks
Definition of AST and UST (25 PA Code § 245.1) should exempt facilities governed by the Natural Pipeline Safety Act and the Hazardous Liquid Pipeline Safety Act.

Response: An exemption for "pipeline facilities" regulated under either The Natural Gas Pipeline Safety Act 1968 or the Hazardous Liquid Pipeline Safety Act is contained in both section 103 of the Storage Tank Act (Act 32) and 25 Pa. Code § 245.1 of the storage tank regulations. These exemptions are found in the definitions of "aboveground storage tank" (AST) and "underground storage tank" (UST).

A "pipeline facility" is defined in 49 U.S.C. § 60101 (a) (where the Pipeline Safety Acts are codified) as "a gas pipeline facility and a hazardous liquid pipeline facility". That same section defines a "gas pipeline facility" as including "a pipeline, a right of way, facility, a building, or equipment used in transporting gas or treating gas during its transportation" and a "hazardous liquid pipeline facility" as including " a pipeline, a right of way, a facility, a building, or equipment used or intended to be used in transporting hazardous liquid."

Under the federal UST regulations, the Environmental Protection Agency ("EPA") adopted a differently worded but essentially identical definition (40 CFR § 280.12, "pipeline facilities") and also excluded such facilities from the definition of " UST" (40 CFR § 280.12). In the preamble to 40 CFR Part 280, EPA also states that "the definition includes sumps, drip tanks, skimmer pits, lubrication oil collection devices and any other containers that are directly connected to regulated oil or gas pipelines or gas plants." (emphasis added, 53 F.R. 37118).

The Department believes that any storage device that is directly connected to a regulated pipeline and is an integral part of the pipeline transportation is exempt from Storage Tank Act (Act 32) coverage under this exclusion.

An example of such an exempt tank would be a "breakout tank." These are storage tanks (generally large ASTs) which relieve surges in a hazardous liquid pipeline system or which store hazardous liquid that is transported by a pipeline until reinjection and continued transportation by the pipeline. Storage tanks at end terminal tank farms, which store hazardous liquids until sale to intermediate or end users, would not fall under this exemption.

The difficulty for the Department in determining whether a particular storage tank falls under the definition of "pipeline facility" lies in the fact that the term is defined in statutes that are implemented by the federal Department of Transportation (DOT). Although the Department might interpret the scope of the term, the DOT is responsible for implementing and enforcing these statutes and their input is needed when the Department makes determinations regarding the regulatory status of the storage tanks described in this comment. The department pledges to work with EPA and DOT to determine the regulatory status of these storage tanks and avoid duplicative regulatory efforts and coverage.

101
  1. Storage Tanks
Definition of reportable release (25 PA Code Section 245.1) should conform with the applicable federal regulations.

Response: The Department proposes to modify the definition of Reportable Release in Section 245.1 to be consistent with 40 CFR part 280, Subpart E, Section 280.53.

101
  1. Storage Tanks
DEP should support legislation to amend Act 32 to revise out-of-service tank inspection requirement from a 10 year standard to one which conforms to nationally recognized codes and standards.

Response: The Department agrees. S.B. 638, which passed the Senate in December, 1995, would amend the Storage Tank and Spill Prevention Act (Act 32) at Section 301 (a) (2) to read: out of service inspections every twenty years or more frequently in accordance with nationally recognized standards, provided that new or existing aboveground storage tanks have an in-service inspection in accordance with API or other nationally recognized standards by a Pennsylvania certified inspector at least every five years as well as monthly maintenance inspections by the owner/operator or his designated representative.

102
  1. Storage Tanks
The proposed regulations for AST are the most comprehensive and stringent for AST at either the state or federal level. Every cost associated with compliance with these regulations is a unique cost incurred by PA businesses.

Response: The purpose of the Department's regulatory basic initiative (RBI) is to review existing regulations. The commentator is referring to draft regulations not yet submitted to the EQB for proposed rule making. The comment, therefore, would be more appropriately addressed during the public comment period on this regulation package. The Department will consider this comment at that time.

102
  1. Storage Tanks
Amend 25 PA Code §245.1 to honor federal deferral for storage tanks associated with emergency diesel generators at nuclear facilities.

Response: The department agrees and will be proposing revisions to Chapter 245 "Administration of the Storage Tank and Spill Prevention Program" that will adopt the federal deferral for these tanks.

103
  1. Storage Tanks
Amend 25 PA Code Section 245.1 to match federal definition of reportable releases.

Response: The Department proposes to modify the definition of Reportable Release in Section 245.1 to be consistent with 40 CFR Part 280, Subpart E, Section 280.53.

103
  1. Storage Tanks
Spill Prevention and Response Plans are more restrictive that federal program. Amend Spill Prevention and Response guidelines to allow facilities subject to the federal Oil Pollution Prevention regulations to maintain SPCC plans as a compliance equivalent to the Spill Prevention and Response plan requirements.

Response: The statutory basis for the Spill Prevention and Response Plan is the Storage Tank and Spill Prevention Act (Act 32). The Department recognizes the similarities of the state and federal pollution incident prevention and emergency response plan requirements. To avoid duplication, regulated storage tank facilities are encouraged to consolidate emergency response plans into a single document.

103
  1. Storage Tanks
Tank installers certification program regulations are ambiguous, confusing and poorly drafted. Delete 245.110 an 245.111. Section 245.105 should be supported with a testing program that clearly determines qualifications and eligibility for state certification.

Response: The Department has met with technical advisory committee and industry experts to discuss modifying the certification requirements. The Department has proposed consolidation and elimination of several certification categories at section 245.110of the program regulations. The Department has also proposed several changes to the experience and qualifications requirements at section 245.111. The Department has contracted with a professional industry testing contractor to develop, maintain and conduct certification examinations which measure specific knowledge in applicable industry standard codes of practice, Department regulations and Federal Laws governing the storage tanks program.

103
  1. Storage Tanks
245.110(a) should be revised to require certified installers only for activities involving "storage tanks". Also, DEP guidance should be revised to indicate that periodic inspection of cathodic protection systems or similar maintenance activities need not be conducted by certified tank installers or inspectors.

Response: The regulatory requirements for using certified installers are predicated on specific provisions in the Storage Tank and Spill Prevention Act(Act 32). Additionally the definitional terms in Act 32 for both "Aboveground storage tank" and "Underground storage tank" include the tank and associated piping. DEP guidance lists testing of the cathodic protection as a maintenance activity which does not require the use of a Department certified inspector. However, Federal requirements at 40 CFR 280 were adopted by reference at section 245.2. These regulations require that inspection and testing of corrosion protection system be performed according to applicable industry standards, such as the National Association of Corrosion Engineers (NACE) Standard. The Department will clarify this requirement in it's technical regulations which are currently under development.

105
  1. Storage Tanks
Industry representatives from non-petroleum industries should be represented on the Storage Tank Advisory Committee.

Response: The membership of the Storage Tank Advisory Committee (STAC) is established in Section 105 of Act 32. Presently, the non-petroleum industries are represented by the Pennsylvania Chemical Industry Council. To expand the STAC to other non-petroleum industry representatives would require an amendment to Act 32 and, as such, is beyond the scope of this initiative.

105
  1. Storage Tanks
Inspection requirements of Act 32 should be shifted from DEP to L&I.

Response: As written, the Storage Tank and Spill Prevention Act (Act 32) gives authority for implementation of Act 32 to the Department of Environmental Resources or its successor. As such, the comment is beyond the scope of this initiative.

105
  1. Storage Tanks
Regulations require certification of personnel who install, modify, or remove aboveground and underground storage tanks are far more stringent than federal requirements and should be revised to conform to the federal program. The twenty-four categories specified in 25 PA Code §245.10 should be reduced.

Response: The Storage Tank and Spill Prevention Act (Act 32) specifically requires the Department to establish a regulatory program for both aboveground storage tanks and underground storage tanks with standards for installation, modification and removal of storage tanks through the use of certified installers. The Department agrees that the number of certification categories should be reduced and has proposed changes to consolidate and eliminate several certification categories.

105
  1. Storage Tanks
Release reporting provisions applicable to regulated aboveground and underground storage tanks are unnecessarily stringent and burdensome.

Response: The Department proposes to modify the definition of Reportable Release in Section 245.1 to be consistent with 40 CFR part 280, Subpart E, Section 280.53.

105
  1. Storage Tank
Requirements of Chapter 245 should be revised to conform with federal standards related to nuclear power generating facilities.

Response: The Department agrees and will be proposing revisions to Chapter 245 "Administration of the Storage Tank and Spill Prevention Program" that will adopt the federal deferral for these tanks.

105
  1. Storage Tank
Revise 245.21 so that an inspection is not required where tank handling activities are by a certified installer.

Response: The Department has proposed changes which will only require inspection of tank handling activities conducted on all field constructed storage tanks and aboveground storage tanks in excess of 21,000 gallons capacity, except in the case of a minor modification or removal from service, which would not require inspection.

105
  1. Stormwater
Permit review/approval took nearly three years. These regulations, and supporting literature, are poorly written and difficult to comply with.

Response: DEP agrees that a three-year processing time to issue a stormwater permit is excessive, but further comment cannot be made without knowing the specific circumstances of the case referred to in the comment. The process for obtaining coverage under the General NPDES Stormwater Permit is to submit a Notice of Intent for coverage; if no correspondence is received from DEP in response to the submittal within 30 days, coverage under the General Permit is automatic. There are no Pennsylvania stormwater permitting regulations DEP has been administering the NPDES stormwater permitting program since 1992 with very little complaint from the regulated community. DEP has worked with the regulated community at making the application packages as simple as possible and to include complete instructions Any specific suggestions to further the application package would be welcomed.

16
  1. Stormwater
Rainfall dependent discharges are controlled under the same ultra-conservative NPDES permitting procedure that is applied to process discharges. DEP should implement the "Interim Policy for Real-Time Control of Rainfall Induced, Intermittent Discharges" which is used by DEP's Bureau of Surface Mining. This is more cost-effective.

Response: Federal regulations identify twenty-two major categories of industrial activities that must obtain an NPDES permit for their stormwater discharges. DEP's Stormwater NPDES General Permit provides a simple and efficient means of complying with the federal requirements. Only a few industrial categories have effluent limits. The remainder of the industrial activities comply with the terms and conditions of the General Permit through a combination of Pollution Prevention measures, Best Management Practices, and good housekeeping. Monitoring requirements are minimal and are kept on site. An annual self-certification process is also offered to some categories of dischargers as an alternative to parameter-specific monitoring. DEP believes that this process and its available options is far simpler than the traditional NPDES permitting process.

Some industrial categories, including the steam electric industry, must also comply with federal effluent limitation guidelines. This may result in specific effluent limitations for those discharges. If water quality criteria violations are expected even after technology-based controls are in place, a higher level of treatment may be necessary. DEP will explore the option of applying real-time controls to these situations.

55
  1. Stormwater
Monitoring requirements are more stringent than federal requirements and a tremendous burden. Regulated community should be required to follow BMPs, rather then a monitoring program, after the federal program is developed.

Response: DEP Stormwater NPDES General Permit discharge monitoring requirements are no more stringent than those in EPA's Mulitsector Stormwater Permit. DEP has already made BMPs one of the cornerstones of the stormwater management program. In addition, some industrial categories are allowed to perform annual inspections of their stormwater management programs instead of performing effluent monitoring.

64
  1. Stormwater
Monitoring requirements in NPDES permits should be no more stringent than those in the General Permit.

Response: DEP Stormwater NPDES Permit monitoring requirements are no more stringent than those in EPA's Multisector Stormwater Permit.

73
  1. Stormwater
Unlike EPA, eligibility for DEP's general permit for stormwater discharges associated with industrial activity is overly restrictive. PA should expand the categories of facilities which could be covered under an NPDES general permit to eliminate this restriction.

Response: (The commentator is specifically referring to the Special Protection watershed exclusion for General Permits) DEP is currently conducting a regulatory negotiation initiative which will result in recommendations for revising the Department's antidegradation regulations. One of the key issues being discussed by this group is whether to allow General Permit coverage of discharges in Special Protection watersheds. DEP intends to consider the recommendations of this group of stakeholders when revising the Special Proctetion Waters regulations.

87
  1. Stormwater
NPDES stormwater permits should not apply to PA's oil and gas related activities.

Response: This is a federal requirement under the federal stormwater regulations.

110
  1. Toxic Reduction Evaluation
The TRE condition should be modified to clarify that a TRE limitation can only be imposed through a formal permit modification.

Response: DEP's Toxics Reduction Evaluation special condition states "The Department will review the TRE report(s) and may establish final WQBELs and compliance schedule through a permit modification. Any such permit modification shall be considered a formal permitting action by the Department." (emphases added)

97
  1. Toxics Reduction Evaluation
Requiring both toxic reduction evaluations (TRE) and biological toxicity tests goes beyond federal requirements. Require TREs only if biological indicators show toxics as a concern.

Response: Federal regulations require toxicity testing of certain specified discharges regardless of the need for a TRE. EPA's policy of independent applicability further requires DEP to establish both parameter-specific and biological permit requirements when toxicity testing dictates.

66
  1. Toxics Reduction Evaluation
The TRE condition should be modified to clarify that a TRE can also result in limitations being dropped from a permit.

Response: It is DEP's current practice to eliminate effluent limits from permits if that action is supported by TRE results. DEP will consider revising the condition language to reflect this practice.

97
  1. Waste Load Allocation
A variety of water quality models may be used to calculate waste load allocations. The regulation (§95.3) should be clarified to recognize this.

Response: A variety of water quality models can be used to simulate instream water quality conditions. However, simulations only indicate whether or not a wasteload allocation is needed. To do a wasteload allocation, the sources that are contributing to the water quality violation needed to be identified, and the available assimilation capacity must be allocated among them according to some set of defined rules. This process is usually referred to as a wasteload allocation algorithm. The method DEP currently uses to allocate assimilation capacity is call "Equal Marginal Percent Removal." There are, however, alternative approaches.

Existing Sections 95.3(j) and (k) are designed to provide both dischargers and DEP with some flexibility in determining WLAs. It has long been DEP policy to accept an alternative WLA plan if a group of affected dischargers propose an alternative scheme they collectively agree will be more cost-effective, so long as the plan provides attainment of water quality standards. It is possible, however, that most dischargers are not aware of this policy, and that it should be made more explicit in the regulations.

66
  1. Wastewater Discharges
§91.42 applies to all types of wastewater discharges, but it is inconsistent with subchapter B in Chapter 16, which specifies a number of analytical methods and §93.8(a), which incorporates Chapter 16 by reference. §91.42 should be deleted or revised to include the full list of references for acceptable analytical methods for all discharges.

Response: The Department agrees that this section does not recognize other EPA-approved methods which are routinely used and it also duplicates provisions of other chapters, including Chapter 16. DEP expects to update these provisions and combine them with similar sections in other chapters.

66
  1. Wastewater Discharges
A number of sections of Chapter 91 are obsolete. In particular, §91.11-§91.16 are no longer necessary in light of procedures imposed by federally-delegated programs. §91.23, §91.24 and §91.42 are unnecessary to the extent that professional registration and certification laws and public contracting laws address these issues. §91.31 should be re-evaluated in light of the changes in federal law and the Pennsylvania Sewage Facilities Act.

Response: DEP plans to consider revising or rewriting all or portions of sections 91.11-91.16 in light of the this comment. DEP also agrees that sections 91.23, 91.24, 91.42, and 91.31 may be redundant or obsolete. DEP will further evaluate the need to revise or eliminate portions or all of these provisions.

66
  1. Water Quality Limits
The protection of all state waters for potable water supply is costly and unnecessary. The statewide designation of all waters as potable water supply should be limited to those waters actually used for drinking water supply.

Response: The Department has also identified this as an issue to be evaluated. In the 1960s and 70s, the Department had taken the statewide approach to protecting for the potable water supply use because limited information was available regarding future water intake locations. However, with the development of a better information base on existing and planned public water supply use, the Department believes that it is now possible to identify these locations and will explore the option of modifying the statewide use.

55
  1. Water Quality Limits
Protection of receiving streams to drinking water quality in all cases is unnecessary. DEP should use risk-based standards without multiple safety factors.

Response: See response to comment #160.

66
  1. Water Quality Limits
The list of water uses in Table 2 is applicable to all waters of the Commonwealth regardless of use designation and the actual use. In particular, all waters are protected for potable use, even where they may never be used as a water supply source. This exceeds federal requirements and imposes burdensome treatment requirements. [§93.4]

Response: See response to comment #160.

66
  1. Water Quality Limits
PA's rules are identical to federal standards except that industrial users must comply with specific local limits set by POTWs. It is now possible for local sewer limits to exceed drinking water limits. This is inappropriate. One approach is to make allowances for parameters contained in municipal drinking water on a "net" basis.

Response: DEP has never implemented industrial waste pretreatment regulations. Though adopted in 1988, these provision never became effective because DEP has not received delegation of the industrial waste pretreatment program from EPA.

78
  1. Water Quality Limits
DEP should allow dischargers to use dynamic modeling in calculating WQBELs. DEP's models are conservative and the use of dynamic models will result in more realistic permit limits.

Response: Section 95.3(j), allows dischargers to propose alternative water quality modeling methods to develop WLAs and WQBELs. See also response to comment #25.

97
  1. Water Quality Limits
Human health criteria should be imposed only where there is a reasonable determination that there is a drinking water use to protect.(25 PA Code §93.5(e)] This is more stringent than EPA requirements and that of the neighboring states of West Virginia and Ohio.

Response: Human health criteria include human exposure from eating fish as well as from drinking water. Therefore, health criteria should not be restricted to drinking water sources. Relating to protection of the drinking water use, see also the response to comment #160.

97
  1. Water Quality Limits
Previous water quality based effluent limitation calculated using the old WQAT model should be replaced by limitations calculated using the new PENTOXSD model.

Response: Previously calculated WQBELs may be replaced by revised limitations, so long as the change doesn't violate the anti-backsliding provisions of the federal Clean Water Act.

97
  1. Water Quality Limits
The current PENTOXSD model for calculating mixing zones is more stringent than federal regulations. DEP should incorporate the mixing zone concepts set forth in EPA's Technical Support Document for Water Quality-based Toxics Control (EPA/505/2-90.001, March 1991) into state water quality modeling.

Response: DEP's criteria compliance time procedures are actually more liberal than the mixing zones procedures recommend by EPA in the TSD

97
  1. Water Quality Limits
State-wide human health criteria for all receiving waters is more stringent than required by federal law. Human health criteria should be applied at the point of a drinking water intake or drinking water use.

Response: See response to comments #160 and 165.

103
  1. Water Quality Limits
Water Quality Toxics Management Strategy contains standards that are more stringent than federal law and in some instances are impossible to comply with. DEP is using Minimum Detection Levels (MDLs) as NPDES permits limits when WQBELs are set below detectable levels. DEP should adopt a strategy which assures that the limits contained in NPDES permits are measurable and quantifiable. EPA's interim ML could be used or EPA's region VI's MQL could be used.

Response: Some of PA's water quality criteria are more stringent than federal criteria. These are being evaluated to ensure that the most technically sound and scientifically defensible criteria are adopted. The Department follows EPA guidance that numerical effluent limits, even those below detection, are included in permits. Method detection limits (MDLs) are not used as permit limits, but may be used as compliance levels. DEP's current use of MDLs as compliance levels is not more stringent than federal requirements because EPA has not yet issued final guidance on interim minimum levels (MLs), which are to be used for compliance. Rather than use one of the interim quantification levels, DEP will adopt EPA's MLs when they are final.

103
  1. Water Quality Reporting
Reporting requirements under Chapter 16, section 92.7 often require unneeded Department notification for minor changes/process modifications. These requirements are inconsistently interpreted among DEP regions and requires clarification.

Response: DEP will consider amplifying the intent of this regulation and making it track similar federal regulations more closely.

54
  1. Water Quality Reporting
§92.7 is overly broad and can be interpreted to mean that any minor expansion, production increase or process modification requires notification of DEP. This concern could be corrected by eliminating the first sentence in this section.

Response: DEP will consider amplifying the intent of this regulation and making it track similar federal regulations more closely.

66
  1. Water Quality Standards
In October 1993, DER rescinded the chronic water quality criteria for silver, but current activity by local POTWs shows an increase in the imposition of stricter and lower limits of silver discharges for printers. DEP did not clearly communicate this action to the NPDES permit writers and the POTWs. This confusion is costly to the printing industry.

Response: All NPDES permit writers in DEP have been made aware of the revision to the silver criteria made in 1993. Permit effluent limits have been written based only on acute silver criteria since that time. Any specific examples of where DEP staff has used a chronic silver criterion since that time to develop effluent limits, it should be brought to the attention of the appropriate DEP Regional Water Management Program Manager. Pretreament limits are established by local government with no oversight from DEP. DEP has taken steps to make municipalities aware of the 1993 change to silver criteria. Presumably, local limits are reflective of specific NPDES permit effluent limits. If local limits are being otherwise established, they should be negotiated at the local level.

50
  1. Water Quality Standards
Adding EPA priority pollutants universally to discharge standards is unnecessary. DEP should evaluate the benefit before including priority pollutant standards.

Response: In order to evaluate a wide range of possible discharge situations and pollutants, DEP establishes water quality criteria for all EPA priority pollutants and other pollutants found in PA discharges. However, the existance of any criterion does not result in every discharger having an effluent limit for that pollutant. NPDES effluent limits are only specified for pollutants known to be in the discharge, based on effluent quality data submitted in the permit application and where technology-based or water quality-based limits are needed to meet water quality standards.

66
  1. Water Quality Standards
DEP should incorporate all, not just selected sections, of the EPA policy for metal criteria into PA's water quality standards.

Response: The Department adopted EPA's metals' criteria as part of Chapter 16 (PA Bulletin, 11/18/95). This comment also relates to the use of quantitation levels as the standard for compliance, rather than the detection limits that DEP now uses. Although there is a difference in terms, there is no substantive difference in how EPA and PA implement this seemingly different language. EPA has not completed its guidance on compliance with permit limits below detection, and therefore, does not have a consistent means to implement quantitation levels. DEP intends to incorporate quantitation levels when EPA finalizes the guidance.

66
  1. Water Quality Standards
Lack of quantification limits in recent metals strategy is beyond federal requirements.

Response: EPA has no final guidance on quantitation levels. Therefore, although EPA discusses quantitation levels, implementation is not clear and is often based on MDLs, as in PA. DEP intends to incorporate quantitation levels when EPA issues final guidance on them.

66
  1. Water Quality Standards
Method detection limits in Chapter 16 are unnecessary. Use alternative methods like MLs.

Response: See response to comment #175.

66
  1. Water Quality Standards
Non-threshold effect (cancer) model is extremely conservative. DEP should allow for the use of models other than the linearized multi-stage model as appropriate for specific chemicals. [§16.33(g) & (h)]

Response: This section reflects language from EPA's current guidelines for human health criteria development. It is not more stringent than EPA requirements. In addition, the language does not preclude use of other models. From a practical standpoint, DEP uses the cancer potency factors generated by EPA, so if EPA uses another model to develop these factors, DEP accepts it.

66
  1. Water Quality Standards
Unrealistic consumption exposure factors of 2 liters/day of water and 6.5 grams/day of fish. [§16.33(j)] DEP's policy should be altered to allow site-specific factors to be considered in the derivation of human health criteria.

Response: As part of the proposed strategy on the Great Lakes Initiative (GLI), DEP has included a proposal to allow for a consideration of site-specific human health criteria on a statewide basis. Current data indicate it is unlikely that site-specific fish consumption values would be lower than 6.5 g/day (for example, GLI uses 15 g/day); and 2 liters water per day is the standard factor for protection of the potable water use.

66
  1. Water Quality Standards
Use of 1x10-6 risk level is inconsistent with EPA guidance and §303(c)(1) of the Land Recycling and Environmental Remediation Standards Act. DEP policy should be changed to reflect this. [§16.33(l) & (k)]

Response: The application of a range of risk levels in criteria development for permit limits is impractical. While the concept of clean-up may lend itself more readily to ranges, protection standards should be set at a constant level. EPA includes a range of risk levels a state may choose from for water quality standards, but it does not provide for states to vary the level of protection among criteria. Like PA, many states have chosen the 1 x 10-6 level.

66
  1. Water Quality Standards
Water quality model is outdated and needs to be updated.

Response: This comment is very general. DEP has replaced its previous model (WQAT) with an updated single discharge model (PENTOXSD) and is planning the development of a multiple discharge model.

66
  1. Water Quality Standards
Standards should be consistent across the state/nation. Concerned about separate initiatives developing separate water quality regulations (e.g. DRBC, GLI)

Response: PA generally supports criteria consistency among states and the federal government. There are, however, circumstances that support state or region specific criteria, such as the presence of particular sensitive or tolerant local or regional species or significant new data. For example, the Great Lakes is a unique ecosystem which requires some standards that are different from national or statewide criteria. Conditions in the Delaware Estuary may also require separate standards.

69
  1. Water Quality Standards
Limiting pH at internal outfalls, when the pH limits at the external outfall have been achieved, requires the addition of unnecessary chemicals.

Response: DEP does not routinely require that specific pH limits be met at internal outfalls. Federal Effluent Limitations Guidelines (ELGs)for some industries do require that specified limits be met at internal monitoring points. DEP must write permits that are consistent with these federal regulatory requirements.

79
  1. Water Quality Standards
Regulations setting standards for wastewater mass loading and concentrations are currently more stringent than federal requirements.

Response: See response to comment # 28.

79
  1. Water Quality Standards
DEP's water quality-based effluent limits incorporates a number of extremely conservative factors and a steady-state model (PENTOXSD). DEP should reduce the conservatism incorporated into the water quality-based process and use an alternate critical low flow such as 30Q5 and a dynamic model such as DYNTOX.

Response: See response to comment #25.

79
  1. Water Quality Standards
Industrial users are faced with the potential of having to attain metal levels beyond drinking water standards and considerably below metals limits in the background water supply. DEP needs to rationalize the effluent discharge limits for metals w/the intake quality of the water.

Response: Effluent limitations are sometimes more stringent than drinking water standards in order to protect fish and aquatic life and other uses. DEP will allow for intake "credits" where the intake and discharge involves the same water body, and the discharger can demonstrate through appropriate monitoring of intake water and effluent that there is no significant addition of pollutants.

93
  1. Water Quality Standards
All water quality criteria for metals should be expressed in dissolved form. EPA has modified its policy to conclude that dissolved metal more closely approximates the bioavailable fraction of metal in the water column than total recoverable metal.

Response: The Department agrees that dissolved metals provides a better approximation of the toxicity to fish and aquatic life and has adopted EPA's dissolved metals' criteria as part of Chapter 16, (PA Bulletin, 11/18/95).

97
  1. Water Quality Standards
DEP should be more flexible in accepting site-specific water quality criteria. [25 PA Code §93.8(a)] DEP should instruct staff to consider less expensive and more user-friendly protocols for the determination of site-specific criteria.

Response: EPA requires Pennsylvania to follow national protocols for site-specific determinations of federally developed water quality criteria. The Department believes that in addition to the provisions of § 93.8 for criteria developed by DEP, the recalculation and water effects ratio (WER) approaches provide a discharger the opportunity to develop site-specific criteria. We know of no other studies acceptable to EPA. The Department encourages dischargers to comply with clean sampling and analysis techniques to minimize water quality problems that may make expensive WER studies unnecessary and to consider the less costly criteria recalculation procedures before conducting WER studies.

97
  1. Water Quality Standards
DEP should clarify the procedure for determining when a receiving stream is subject to aquatic life criteria. [25 PA Code 93.6(a)] Aquatic life criteria should only apply where the permit writer determines that there is a viable and complete aquatic community which merits protection, and that this determination is documented in the fact sheet.

Response: It is important to protect a marginal aquatic community as much as a more healthy community. If the marginal community is not protected, the use will be destroyed. The extent of the aquatic community should not be the issue but rather the maintenance of the use.

97
  1. Water Quality Standards
Revise 25 PA Code §93.8 to allow less stringent standards to be set for pollutants that are discharged to streams who's aquatic community is limited by factors resulting from acid mine drainage.

Response: The Department disagrees. Removing the goal of protection from the regulation would undermine the cleanup of existing pollution problems that are needed to achieve designated uses. See also response to comment # 188.

105
  1. Water Quality Standards
§93.7 lists specific water quality criteria and water quality criteria developed by the state based on federal guidance or other scientifically defensible methods as provided in 40 CFR 131.11 should not be considered as going beyond federal minimums.

Response: Water quality criteria developed by PA consistent with 40 CFR Part 131.11 would not be considered as going beyond Federal minimums provided that they are developed using sound scientific principles and data.

107
  1. Water Quality Standards
§95.2 defines secondary treatment and there is no justification for changes to the state definition.

Response: DEP has no plans to change the definition of secondary treatment at this time

107
  1. Water Quality Standards
Chapter 16 describes procedures other than EPA's national guidelines for development of aquatic life criteria and contains some criteria more stringent than federal criteria. Federal regulations allow states to do this and many Pennsylvanians expect DEP to use this flexibility to protect them and their environment from toxic substances.

Response: The Department will preserve the authority to develop criteria independent of EPA as necessary to protect PA waters. However, water quality criteria should reflect the best science available and must be defensible if challenged. DEP procedures and criteria are being evaluated to ensure that they are technically sound and scientifically defensible.

107
  1. Water Quality Standards
DEP should retain the O.5mg/l default value for Total Residual Chlorine [§93.5(f)(1)(i).

Response: See response to comment #42.

107
  1. Water Quality Standards
Federal requirements indicate spills must be reported within 24 hours. It is clearly in the public's interest to report these incidents to be reported immediately.

Response: Current DEP regulations do not allow the 24-hour reporting window; they require such events to be reported "forthwith."

107