RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 71--73]
Administration of Sewage Facilities, Planning Program and Standards for Sewage Disposal Facilities (Act 149)
[27 Pa.B. 5877] The Environmental Quality Board (Board) by this order adopts amendments to Chapters 71--73 (relating to administration of sewage facilities planning program; administration of sewage facilities permitting program; and standards for onlot sewage treatment facilities). The amendments implement various amendments to the Pennsylvania Sewage Facilities Act (act) (35 P. S. §§ 750.1--750.20) which were enacted under the act of December 14, 1994 (P. L. 1250, No. 149) (Act 149). As described in Section E of the Preamble of the proposed amendments published at 26 Pa.B. 1491 (March 30, 1996), the amendments represent significant revisions to the planning, administrative, permitting and technical requirements of the sewage facilities program established under the act. Among the more significant amendments are provisions relating to procedures for private requests under section 5 of the act (35 P. S. § 750.5), review of official plans, update revisions, special studies and requests for exceptions from the requirement to revise an official plan, responsibilities and administrative procedures for delegated agencies authorized under section 7(b)(4.3) of the act (35 P. S. § 750.7(b)(4.3)), reimbursement to and expanded authority of local agencies under sections 6 and 8 of the act (35 P. S. §§ 750.6 and 750.8), fees for the review of planning modules and certain responsibilities of sewage enforcement officers.
The Board approved these final-form regulations at its April 15, 1997, meeting.
A. Effective Date
Except for § 73.31(b)(4) (relating to standards for septic tanks), these amendments will go into effect immediately upon publication in the Pennsylvania Bulletin as final rulemaking. The amendments to § 73.31(b)(4) will go into effect January 7, 1998.
B. Contact Persons
For further information regarding these final-form regulations, contact Milton Lauch, Chief, Division of Wastewater Management, Office of Water Management, 10th Floor, Rachel Carson State Office Building, 400 Market Street, P.O. Box 8465, Harrisburg, PA 17105-8465 (717) 787-8184 or William S. Cumings, Jr., Assistant Counsel, Bureau of Regulatory Counsel, 9th Floor, Rachel Carson State Office Building, 400 Market Street, P.O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). These final-form regulations are available electronically through the Department of Environmental Protection (Department) Web site (http://www/dep.state.pa.us).
C. Statutory Authority
The amendments are being promulgated under the authority of section 9 of the act (35 P. S. § 750.9), which grants the Board the authority to adopt rules and regulations relating to the implementation of the act. The amendments are also adopted under the authority of The Clean Streams Law (35 P. S. §§ 691.1--691.1001) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510.20).
D. Background and Summary
During the 1994 Legislative session, the General Assembly enacted Act 149, which significantly amended the act. The Legislation was signed by the Governor on December 14, 1994. With the exception of two sections, the provisions of Act 149 became effective on December 15, 1995, 1 year after enactment. The provisions of section 7 of the act (35 P. S. § 750.7) authorizing a qualified exemption from the permitting and planning requirements of the act for the installation of onlot sewage systems to qualified owners of lots 10 acres or larger became effective upon enactment of Act 149. Section 7.3 of the act (35 P. S. § 750.7c) relating to individual residential spray irrigation systems became effective June 17, 1996.
The Board adopted final-form regulations implementing certain provisions of Act 149 at a meeting held on June 18, 1996. The final-form regulations adopted in June 1996 are based on a proposal outlined in a notice of proposed rulemaking published at 25 Pa.B. 3221 (August 5, 1995) and relate to implementation of the qualified exemption, technical and bonding criteria for the installation of onlot sewage disposal systems in areas where soil mottling is present and certain other provisions. Those final-form regulations were published at 26 Pa.B. 5347 (November 2, 1996).
The final-form regulations outlined in this rulemaking implement the remaining provisions of Act 149. Among other things, the final-form regulations include provisions relating to revised planning review processes outlined in Act 149, delegated agencies, permitting and technical requirements relating to individual residential spray irrigation systems, review fees, permitting by local agencies, reimbursements and multimunicipal local agencies. The final-form regulations are based on a proposal published at 26 Pa.B. 1491 (March 30, 1996). The proposal included a number of provisions which had been published in the August 5, 1995, notice of proposed rulemaking. As noted in the previous paragraph, those provisions have been finalized and accordingly are not included in this notice except when technical amendments were made.
The Sewage Advisory Committee (SAC), established by the act and consisting of representatives of 33 special interest groups, met on September 18, 1996, to review the draft final rulemaking. SAC also reviewed the recommendations of its Regulation Subcommittee, which conducted a detailed review of a draft of the final-form regulations, the comments received and the Department's responses to those comments. SAC made recommendations regarding the comments received and the draft of the final-form regulations.
E. Summary of Comments and Responses on the Proposed Rulemaking and Amendments to the Proposed Rule.
The Board held six public hearings regarding the proposed amendments. Twenty-two individuals testified at the public hearings. The Board also received written comments from 110 individuals and organizations during the public comment period. The Board also received comments from the Independent Regulatory Review Commission (IRRC). Detailed summaries of the comments the Board received and the responses to those comments may be found in a Comment and Response Document which is available from the contact persons whose names and addresses are noted in Section B of this Preamble. Following are summaries and responses to the more significant comments which were received during the comment period.
1. Design of spray irrigation systems and certain other components of onlot sewage systems.
A vast majority of the comments concerned professional qualifications related to the design of certain components of an onlot sewage disposal system and individual residential spray irrigation systems. Proposed §§ 73.44(c)(1), 73.46(a)(7) and 73.161(a) provided that the components and systems could be designed by certain qualified sewage enforcement officers, as well as professional engineers. Under the existing provisions of §§ 73.44 and 73.46, only professional engineers may design these components. For the most part, commentators affiliated with the professional engineer community asserted that the design of spray irrigation systems and certain components of onlot sewage disposal systems constitutes the practice of engineering. Accordingly, these commentators believe that persons engaged in these designs are subject to the provisions of the Engineers, Land Surveyors, and Geologists Registration Law (the Registration Law) (63 P. S. §§ 148--158.2).
Other commentators suggested that the design of these components and systems does not constitute the practice of engineering. Some of these commentators asserted that section 8(e) of the act specifically authorizes sewage enforcement officers to engage in these design activities.
The Board and the Department believe some sewage enforcement officers who are not professional engineers are qualified to design these systems and components. The State Registration Board for Professional Engineers, Land Surveyors and Geologists (the Engineers' Board), however, has formally advised the Department that, with respect to the design of individual residential spray irrigation systems, the design of these systems constitutes the practice of engineering. The Engineers' Board noted that section 3 of the Registration Law (63 P. S. § 150) prohibits the practice of engineering in this Commonwealth by any person unless that person is licensed under the laws of the Commonwealth as a professional engineer.
The Board acknowledges that section 8(e) of the act (35 P. S. § 750.8(e)) does authorize sewage enforcement officers to perform design work, provided certain requirements are met related to fees and subsequent review and permit issuance. That section does not, however, provide specific authority relating to the design of individual residential spray irrigation systems. Under the principles of statutory construction, when a general provision of a statute conflicts with a more specific provision of a statute or more specific statute, the more specific provision or statute applies. The Engineers' Board has issued a formal opinion stating that design of individual residential spray irrigation systems constitutes the practice of engineering and is, thus, subject to the requirements of the Registration Law. The Board must defer to the determination of the Engineers' Board.
The Board has deleted references in the proposal as well as the existing regulations which relate to the professional qualifications for the design of onlot sewage systems and their components as well as individual residential spray irrigation systems. Determinations regarding professional qualifications and licensing requirements for these activities are more appropriately made under relevant registration or licensing statutes.
Chapter 71--Administration of the Sewage Facilities Planning Program 2. Chapters 71 and 72--Minor Changes
Most of the revisions to the proposed amendments in these final-form regulations are discussed in the paragraphs which follow. A number of minor changes to Chapters 71 and 72 were made as follows:
Section 71.55(c) (relating to exceptions to the requirement to revise the official plan for new land development)--The reference to ''exception'' has been clarified to mean an application for an exception.
Section 71.58(a)(5)(vii) (relating to delegation of new land development planning)--A reference to documentation regarding administrative procedures, and the like, of delegated agencies being listed has been changed to provide that the documentation must be reviewed by the Department.
Section 71.62(b)(2)(iii) (relating to individual and community onlot sewage systems)--A reference to the United States Soil Conservation Service has been revised to more accurately reflect its current official name.
Section 71.63(c)(3) (relating to retaining tanks)--Text regarding regulations or restrictions has been added to make the provision consistent with the immediately preceding sentence.
Section 71.64(c)(7) (relating to small flow treatment facilities)--Language regarding alternative analysis for small flow treatment facilities has been revised to provide that the use of this facility must be a technically, environmentally and administratively acceptable alternative rather than the best environmentally acceptable alternative.
Section 71.65(b) (relating to individual community sewage systems)--A reference to ''appropriate Department guidance manuals'' has been added. These manuals provide information relating to the submission of plans and technical requirements for small flow treatment facilities.
Section 72.1 (relating to definitions)--Definitions of ''qualified soil scientist'' and ''soil mottling'' were clarified by adding more current technical language.
Section 72.22(f) (relating to permit issuance)--A reference to a previous paragraph has been added for clarity.
Section 72.23 (relating to limitation on onlot system permit issuance)--Minor clarifying amendments were made to make it clear the provisions apply to certain areas instead of the occurrence of an event. In addition, language was added to make it clear that the reference to permit limitations in subsection (c) is limited to this section.
Section 72.42(20)(v) (relating to powers and duties of local agencies)--A minor amendment was made to clarify an apparent grammatical error in the proposal.
Section 72.55(c) (relating to certification renewal)--The requirement for the completion of training for renewal of sewage enforcement officer certification has been clarified. A certification will lapse if a sewage enforcement officer has not completed training required by the Department ''for certification renewal'' by the renewal date. In addition, the reference to subsection (b) in subsection (d) has been deleted.
3. Sections 71.1, 72.1 and 73.1--Generic phrase relating to definitions.
IRRC noted that the lead-in sentence to each of these sections, which define terms used in each chapter, states: ''The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise.'' IRRC suggested that the phrase ''unless the context clearly indicates otherwise'' be deleted because it believes the phrase is ambiguous. The Board does not agree with this recommendation. The phrase is standard language which appears in various provisions defining terms in statutes and regulations administered by the Department. See for example, §§ 109.1, 215.2 and 260.2. Moreover, the phrase has been included in these sections for many years and has been accepted by the regulated community and the public.
Equivalent dwelling unit. Two commentators raised issues with respect to the existing definition of ''equivalent dwelling unit.'' These commentators asserted that there was some confusion within the regulated community about the 400 gallon per day flow threshold for determining the number of lots in a subdivision. Currently, an equivalent dwelling unit is, for purposes of determining the number of lots in a subdivision, defined as ''that part of a multiple family dwelling or commercial or industrial establishment with flows equal to 400 gallons per day.'' The commentators assert that some municipalities may be misusing the 400 gallon per day threshold as a design flow and not for the calculation of a flow threshold for submittal of planning modules. One commentator asserts the 400 gallon threshold is excessive.
The Board acknowledges that there may be some instances where municipalities or municipal authorities have misused the definition of ''equivalent dwelling unit.'' The 400 gallon per day threshold was, and continues to be, intended only to establish a threshold at which sewage facilities planning would be required, as well as to establish fees for planning module reviews. In addition, the Board does not believe the 400 gallon threshold is excessive because the figure includes inflow and infiltration, which generally accounts for an important component of the flows received at treatment plants, even in relatively new systems.
In response to these comments, the definition has been clarified to specify that the 400 gallon threshold relates only to the determination of planning exemptions and fees for planning module reviews under the sewage facilities planning requirements of Chapter 71. Language has also been added to make it clear the flow figures are not intended for the calculation of flows for the design of community sewerage systems or for the allocation of flows related to community sewerage systems.
Individual residential spray irrigation system. One commentator asserted that the definition of ''individual residential spray irrigation system'' should be identical to that specified in the statute. The definition contained in the proposal was an attempt to provide a practical definition without changing the meaning of the term as defined in the act. The statutory definition includes a clause which states such a system is ''permitted under section 7 of the act.'' Inclusion of that clause in the context of these regulations, which relate to sewage facilities planning, would likely lead to confusion because it implies that a permit must be received before planning may begin, which is not the case. The Board has thus not incorporated all of the statutory definition in these final-form regulations.
Individual sewerage system. An individual sewerage system is defined as ''[a]n individual sewage system which uses a method of sewage collection, conveyance, treatment and disposal other than renovation in a soil absorption area, or retention in a retaining tank. One commentator suggested that this definition be amended by adding ''spray fields'' after ''absorption areas.'' The commentator believes this would make the term consistent with the definition of ''individual onlot sewage system.'' The Board disagrees because including the term in the definition as suggested would prevent a multifamily, commercial or institutional facility from using spray irrigation systems. A small flow treatment system, which is a type of individual sewerage system, can include the use of spray irrigation systems.
Retaining tank. The term ''retaining tank'' includes a subset definition of a chemical toilet. The proposal indicated that the term and definition of ''chemical toilet'' would be deleted. A number of commentators noted that although this was the case, the use of the term was retained in certain sections of the regulations. In light of these comments, the definition of ''chemical toilet'' will be retained.
Sewage facilities. The existing definition of ''sewage facilities'' in each of these sections contains a broad definition of the term as well as a subset of definitions which define various types of sewage facilities. IRRC questions the need to place the subset definitions under the term ''sewage facilities'' and believes that each definition should be listed as a separate definition.
The Board does not agree with IRRC's recommendation. The subset definitions have been defined under the term ''sewage facilities'' because they are specific types of sewage facilities. The subset format of the definitions has been in use for many years and consequently the regulated community and the public are familiar with the placement of the terms. The Board has, however, incorporated IRRC's suggestion that the subset be preceded by the phrase ''sewage facilities include:''.
Among the terms defined in the subset is ''community sewerage system.'' The definition has been refined to make it clear that such a system can be either a publicly or privately-owned community system.
Small flow treatment facilities. The existing definition of this term is changed to make it clear that the method of final disposal of effluent from such a system is a stream discharge or other disposal method approved by the Department. The existing definition limits the discharge to a stream discharge or discharge to the surface of the ground.
Working day. A definition of ''working day'' has been added to provide a consistent basis for completeness determinations under section 5(e)(2) of the act.
4. Section 71.14 (relating to private requests to revise official plans)
Section 71.14(c) of the proposal included a provision that the Department will inform certain enumerated local and county agencies of its receipt of a private request and that any written comments these agencies wish to provide must be submitted to the Department within 45 days of the Department's receipt of the private request. One commentator suggested that planning agencies and county health departments should be given 45 days after receipt by those agencies of copies of the private request from the Department to provide written comments. The commentator believes these agencies may not receive copies of the request for up to 2 or 3 weeks after the Department receives it, thereby limiting the agencies' review time to less than 30 days.
As the commentator acknowledges, the language of § 71.14(c) is directly derived from section 5(b.1) of the act The Board also recognizes that the time specified in the regulatory provision at issue might impose a burden on the ability of these agencies to provide substantive and meaningful comments on a private request in a timely manner. To address this situation, the Department has established an administrative time restraint of 7 working days for the Department's notification to these agencies. In addition, § 71.14(a) of the proposal has been amended to make it clear that, as part of the notification process, a person submitting a private request must, at the same time the person notifies the Department, notify not only the municipality, but also the municipal planning agency and appropriate planning commission, and must also include copies of the same documentation that was submitted to the Department supporting the private request. This change will ensure that the appropriate agencies authorized to comment on the private request have the appropriate documents to review early in the process, regardless of the time it takes the Department to forward the information.
In addition, the language of subsection (a) has been clarified to provide that a person filing a private request may request that the Department order a municipality to not only revise, but also implement its official plan. The proposal indicated that this request could only be filed to request an order to revise the official plan, not necessarily to implement it.
No comments were received regarding the time periods outlined in the proposed revisions outlined in subsection (e). However, the Department discerned a problem related to the time periods established in this section for the Department's review and final decision regarding a private request for revision. The proposal required the Department to make a decision within 120 days of receipt of comments from the municipality and official planning agency or at the expiration of the 45 day comment period established for these agencies. The language was clarified to establish that the Department's review period is 120 days from either receipt of the comments or 120 days after the expiration of the comment period.
5. Section 71.21(a) (relating to content of official plans)
In relevant part, this section currently provides that, prior to preparation of an official plan, a municipality should either meet with the Department prior to completion of a Task/Activity Report or submit a Task/Activity Report or other forms to the Department. The purpose of this Report is to determine which of the planning elements outlined in Chapter 71 are necessary to meet the specific needs of the municipality. This section has been slightly revised to require that a municipality submit a Task/Activity Report to the Department and to encourage the municipality to meet with the Department prior to submitting the Report to the Department.
6. Section 71.21(a)(6)--Content of official plans--alternative evaluations.
In preparing official plans or revisions thereto, proponents are required to evaluate various alternatives for solving the needs for sewage facilities in the area studied. This section currently provides criteria for selecting the appropriate alternative. A proponent is to select an alternative and support that selection with documentation showing that the alternative selected is ''the best alternative technically, environmentally and administratively.'' The quoted language has been revised to provide that the alternative selected must be supported by documentation which ''shows that the alternative is technically, environmentally and administratively acceptable.'' This is intended to eliminate subjective judgments among equally acceptable alternatives.
7. Section 71.31 (relating to municipal responsibility to review, adopt and implement official plans)
No changes were proposed to this section. However, during the comment period the Department discerned an issue which needed to be clarified with respect to the public notification provisions of subsection (c). The existing provision provides, in relevant part, that the published notice is to contain a summary description of the nature, scope and location of the planning area and the plan's major recommendations. This provision is clarified in the final-form regulations to address those plans which propose a discharge to a body of water which is designated as ''high quality'' or ''exceptional value'' under Chapter 93 (relating to water quality standards). Notices involving these proposals must now include the antidegradation classification of the receiving water and must include a list of the sewage facilities alternatives considered. This amendment is consistent with recommendations of a regulatory-negotiation stakeholders' group established by the Department to address certain issues related to special protection waters. The stakeholders' group recommended that the Department increase public participation opportunities in sewage facilities planning where high quality or exceptional value waters are involved.
8. Section 71.32 (relating to Department responsibility to review and act upon official plans)
Subsection (a) outlines the basis for completeness determinations relating to the Department's review of official plans and official plan revisions. Among the criteria are items required by § 71.31. No changes were proposed. However, subsection (a) is being revised in these final-form regulations to provide that when a special study is submitted in support of an existing official plan, existing plan revision or existing update revision, the Department may waive inapplicable requirements of § 71.31.
9. Section 71.43 (relating to approval of grants)
No changes were proposed to existing § 71.43. However, during the comment period, the Department discerned a need to cross reference related provisions in § 71.32(d)(7). The referenced section provides that when a plan is proposing sewage facilities which impacts the sewerage facilities of other municipalities, the other municipalities must also adopt the plan. This is directly related to § 71.43(d)(1) which establishes the conditions under which planning grants may be paid for plans in which more than one municipality participated.
10. Section 71.51(b) (relating to general)
Proposed § 71.51(b)(1) outlined the criteria for determining exemptions from sewage facilities planning requirements. Among the criteria outlined was that in subparagraph (ii), which stated that the area proposed for the use of individual or community sewage systems could not be underlain by carbonate geology or be located in an area within 1/4 mile of water supplies documented to exceed 5 parts per million (5ppm) nitrate-nitrogen. One commentator suggested that when considering the location of a proposed sewage system relative to water supplies documented to exceed 5ppm, consideration should be given to watershed location. For example, a proposed sewage disposal site could be within 1/4 mile of known water supplies with elevated nitrate-nitrogen concentrations, but not even be in the same drainage area.
The Department administers requests for planning exemptions by evaluating existing United States Geologic Survey geologic maps, topographical maps and other relevant data on water supplies in the immediate area of the development. Determinations of the location of a proposed development within a specific watershed may not accurately reflect the aquifer or direction of groundwater flow within which the development is to be located. This requires additional studies which may be submitted in support of a planning exemption, but would not normally be required. Accordingly, the suggested change was not made.
Subparagraph (v) provided a requirement that to qualify for a planning exemption, a replacement soil absorption area or spray field must be available for each lot of a proposed subdivision. These replacement areas must be confirmed by a signed report of the sewage enforcement officer serving the municipality in which the new land development is proposed. This subparagraph has been expanded by adding a new sentence providing that a local agency or municipality may require deed restrictions or other actions it deems necessary to protect the replacement soil absorption area or spray field from any damage which would make it unsuitable for future use.
11. Section 71.51(b)(2)(iii)
Subsection (b)(2) incorporates the provisions of section 7(b)(5.1) of the act, which outline the criteria which are to be utilized by the Department and delegated agencies in determining whether a subdivision proposing a connection to or an extension to public sewers would require a revision for new land development or a supplement. One of the criteria relates to permittees of the receiving sewerage facilities documenting that the existing collection, conveyance and treatment systems do not have an existing or a projected hydraulic or organic overload. One commentator, representing a large regional plant operator, suggested that the procedure outlined could create some difficulties for these operators. He believes the procedure does not specifically provide that the receiving facilities themselves certify that they do not have an existing or projected overload, particularly when the receiving facility is located in a municipality other than where a subdivision is being proposed. In this official's case, some municipalities have submitted planning exemption requests without having obtained certification from the receiving facility. The commentator believes the regulation could be interpreted as merely requiring that the applicant provide ''written certification . . . to the municipality'' without certification from the receiving facility. Consequently, the receiving facility might not be aware of the proposed project and the negative effect of the project on its future capacity.
The Board and the Department acknowledge these concerns. The Department has in the past utilized a postcard mailer which, among other things, requires certification from a municipal official that the receiving facility has adequate capacity to serve the proposed development. To address the situation discussed by the commentator, subsection (b)(2)(iii) has been revised in the final-form regulations to provide that the certification must be provided to the Department or appropriate delegated agency, if applicable, as well as the municipality. In addition, the ''application mailer'' used to process planning exemptions will also be modified to require a copy of certifications from the receiving collection, conveyance and treatment facilities be submitted to the Department with the application mailer after it has been reviewed by the municipality.
12. Section 71.53 (relating to municipal administration of new land development planning requirements for revisions)
Among other things, proposed revisions to subsection (b) outlined the procedure for the review of planning modules by sewage enforcement officers and appropriate planning or zoning agencies. It requires a municipality to determine if a planning module is complete within 10 days of the receipt of comments from sewage enforcement officers and the appropriate agency. One commentator raised some concerns about this process, including whether the municipality should formally notify the applicant that the submission is complete and whether a sewage enforcement officer's request for additional testing extends the 10-day period for completeness determinations.
Although not raised by any commentator, the Department discerned an issue which should be addressed in this section. As noted in paragraph 11 of this Preamble, a concern was expressed relating to verification of the hydraulic and organic loading capacity of a receiving facility. In light of this concern, subsection (b) is being amended to provide that the owner of the receiving facility should receive a copy of the planning module.
If an applicant is not formally notified by the municipality within 10 working days of receipt of the planning module that the submission is incomplete, the applicant can assume the submittal is complete. The review by the sewage enforcement officer and the planning or zoning agency must be done within 10 days of receipt. If additional information is required by any of the reviewers, the planning module is incomplete.
In addition, the time frame of 10 days has been modified to 10 working days. This modification is a practical change to ensure consistent application of completeness determinations among the municipalities and local agencies. This is derived from the completeness determination provision of section 5(e)(2) of the act.
Subsection (d)(6) of the existing regulation outlines the types of sewage facilities planning proposals for which public notice by newspaper publication is required. No changes were proposed. However, a new subparagraph (x) is being added to provide that newspaper publication is required for sewage facilities proposed to discharge in areas of high quality or exceptional value bodies of water. This is consistent with the amendments to § 71.31 and Chapter 93 noted in paragraph 7 of this Preamble.
Subsection (h) was proposed to be revised to provide that a municipality may not adopt a proposed revision to an official plan unless it had determined that the proposal complies with the sewage related provisions of municipal zoning, land use or other comprehensive plans. The Board has determined that deciding what is ''sewage related'' is subject to conflicting interpretations and is not easily susceptible to satisfactory resolution. Accordingly, the proposed amendment of this subsection is deleted in these final-form regulations.
13. Section 71.54 (relating to Department administration of new land development planning requirements for revisions)
Subsection (b) of the proposal indicated that a proposed plan revision would not be considered complete unless, among other things, processing fees for the Department's review of the sewage facilities planning module was paid at the time of submission of the module. This fee requirement for completeness is being deleted in these final-form regulations. A similar change is made in § 71.55(d) (relating to exceptions to the requirement to revise the official plan for new land development).
14. Sections 71.58 and 71.59 (relating to delegation of new land development planning; and delegated agency administration of new land development planning requirements)
As proposed, those sections would have required delegated agencies to submit to the Department quarterly reports detailing each subdivision exempted from the planning process. One commentator noted that proposed §§ 71.58(a)(6) and 71.59(d) would require delegated agencies to submit a copy of each supplement approved by the delegated agency and letters of disapproval. This commentator believes the documentation delegated agencies would be required to submit to the Department regarding actions taken with respect to their review of supplements is excessive. The commentator suggests that the quarterly report process should be used to monitor the delegated agency instead of to require the submittal of the modules.
The Board has considered these comments and they are well taken. The Department will use its oversight authority to evaluate the activities of the delegated agencies and may review planning module approvals and denials randomly or on a periodic basis. Accordingly, § 71.58(a)(6) has been revised to delete the requirement that delegated agencies submit copies of planning modules to the Department. A similar requirement of § 71.59(d) has also been deleted.
15. Section 71.62 (relating to individual and community onlot sewage systems)
Existing subsection (c)(3)(ii) outlines one of the components required for a preliminary hydrogeologic evaluation necessary to determine the technical and institutional feasibility of using an onlot sewage system. The preliminary hydrogeologic evaluation must include, among other things, the estimated wastewater dispersion plume. SAC recommended that this section be clarified in the final-form regulations to set forth with specificity the sewage flows to be used in determining the estimated wastewater dispersion plume. The plume is to be determined by using an average daily flow of 262.5 gallons per equivalent dwelling unit, or some other flow supported by documentation.
16. Section 71.63 (relating to retaining tanks)
Existing subsection (e) exempts certain facilities having a sewage flow of 400 gallons per day or less from the planning requirements outlined in this section. The 400 gallon threshold has been increased to 800 gallons.
Existing subsection (f) outlines the conditions under which privies may be used in lieu of other methods of sewage disposal. This subsection has been clarified to make it clear that ''other methods of sewage disposal'' includes individual residential spray irrigation systems. In addition, existing subsection (f)(1) provides that the site where the privy is located must meet the requirements for ultimate sewage disposal by using an onlot system to ensure that adequate sewage facilities will be available if water under pressure or piped water becomes available. The proposed amendment to this subsection would have included the availability of piped wastewater also. The references to water under pressure and piped water, as well as the proposed addition of piped wastewater, have been moved from subsection (f)(1) to subsection (f)(2) in these final-form regulations.
Existing subsection (f)(2) requires a municipality to assume responsibility for the removal of a privy and require the installation of an approved onlot system when water under pressure or piped water becomes available to the lot. This subsection has been clarified to provide that the municipality or entity with jurisdiction is responsible for ensuring the removal of privies and requiring the installation of approved onlot systems if water under pressure or piped water is available to the lot or when the property owner installs water under pressure, piped water or plumbing to move wastewater from the structure to the privy vault or to an unpermitted disposal system on the lot. Existing subsection (g) has been amended to exempt privies situated on a lot of record in existence prior to May 15, 1972.
17. Section 71.64 (relating to small flow treatment facilities)
Subsection (c)(1) of the proposal provided that a proposal for a small flow treatment facility must include, among other things, documentation that soils are not suitable for the installation of individual or community onlot sewage systems under §§ 73.11--73.16. One commentator noted that this, in effect, appears to preclude the use of individual residential spray irrigation systems. This commentator suggested that when a lot does not otherwise meet conditions for a regular onlot system or a sand mound, the property owner should have a choice between a small flow treatment facility and an individual residential spray irrigation system, depending on site conditions.
The Board agrees with the commentator. Accordingly, the regulations have been modified to provide the property owner with the option of choosing a small flow treatment facility or an individual residential spray system when the site is suitable for either, provided the lot proposed for development is outside the watershed of areas designated as high quality or exceptional value under Chapter 93.
Existing subsection (c)(2), which provides that an update revision proposing the use of small flow treatment facilities contain documentation that, among other things, the proposed system will not discharge to high quality or exceptional value waters, was deleted in its entirety to be consistent with proposed regulatory amendments to Chapter 93 resulting from recommendations of the regulatory-negotiation stakeholder's group established by the Department to address certain issues related to special protection waters. Deletion of this outright prohibition of small flow treatment facility discharges into special protection waters will properly place consideration of the proposals under the processes established by Chapter 93.
Subsection (c)(6) of the proposal required that one or a combination of operation and maintenance requirements be included in an official plan or revision proposing the use of small flow treatment facilities. In addition, proposed subsection (c)(7) provided that financial security, such as bonding, escrow or other security, is to be established prior to planning approval.
One commentator provided extensive comments regarding these requirements. Among other things, the commentator asserts that the bonding requirements are excessive, that there is no statutory basis for the financial assurance requirements and that bonding requirements are already covered under section 509 of the Pennsylvania Municipalities Planning Code (53 P. S. § 10509). The commentator also believes that requiring bonding as well as options relating to operation and maintenance is excessive and that proposed subsection (c)(7) lacks clarity with respect to the posting of the financial assurances outlined therein.
With respect to the commentator's assertions regarding statutory authority, section 9 of the act (35 P. S. § 750.9) provides that the Board ''shall adopt such rules and regulations of the Department . . . as shall be necessary for the implementation of this act. Such rules and regulations shall establish standards for [inter alia] the . . . maintenance and operation of individual sewage systems and community sewage systems . . . '' The financial assurances outlined in this section generally incorporate existing financial assurance provisions relating to sewage management programs for Department permitted sewage facilities outlined in existing § 71.72, which were adopted in 1989. See 19 Pa.B. 2429 (June 10, 1989).
The Board has considered the commentator's suggestion that the proposal to require financial security as well as operation and maintenance options is excessive. The proposal has been revised to provide that financial security is one of the options to be considered, along with operation and maintenance options by incorporating the language outlined in proposed subsections (c)(6) and (c)(7) into one subsection, (c)(5). This will allow a developer to propose, and a municipality to accept, financial security or any of the other maintenance options instead of requiring the municipality to demand both. Similar revisions are being made with respect to the provisions relating to sewage management programs for Department permitted sewage facilities and individual residential spray irrigation systems in §§ 71.72 and 72.25(h) respectively.
Subsection (c)(7) of the proposal (subsection (c)(5)(vii) of these final-form regulations) provided that the financial security is to be established for an amount up to a maximum of 50% of the equipment and installation costs of the system for the first 2 years of operation and not more than 10% of the costs each year thereafter. It was suggested that this subsection was unclear in the sense that the last sentence of the subsection implied that up to 50% of the equipment and installation cost must be posted for each of the first 2 years and no more than 10% for each year thereafter. This posed the question of whether the 10% cost must be posted each year or whether the 10% cost must be retained for the entire life of the system. The Board agrees this subsection needs to be clarified. Accordingly, the provision has been revised to make it clear that 10% of the cost must be retained over the life of the system after the first 2 years of operation. The remainder of the original financial security may be refunded at the expiration of the initial 2-year period. A similar revision has been made to the financial security provisions relating to sewage management programs in § 71.72(a)(1).
The commentator also believes that requiring financial security prior to planning approval is inappropriate and should be required prior to permit approval instead. The Board disagrees. Given the fact that other options besides establishing financial security are now available, requiring financial security at the planning stage is not an excessive burden in those cases where the option is chosen by a developer.
Finally, the commentator asserts that bonding requirements for new systems are already covered under section 509 of the Pennsylvania Municipalities Planning Code. The Board does not agree. That section of the Pennsylvania Municipalities Planning Code is not applicable to the long-term operation and maintenance of sewage facilities. Rather, it relates to bonding to ensure the completion of certain improvements as a prerequisite to final plat approval and does not apply to the repair or replacement of a sewage system which has already been installed.
18. Section 71.73 (relating to sewage management programs for sewage facilities permitted by local agencies)
Subsection (d) of the proposal outlined a procedure for providing reimbursement to municipalities which assume responsibility for the administration of a sewage management program in cases where the municipality is not the local agency administering the permitting program. Under the proposal, the municipality would have been required to bill the local agency and receive reimbursement through the local agency. This would have resulted in a cumbersome reimbursement process. The final-form regulations provide that the municipalities may apply directly to the Department for reimbursement and will, therefore, be reimbursed by the Department.
19. Section 71.83 (relating to Department fees)
Subsection (a) of the proposal provided, in relevant part, that the fees charged by the Department for the review of planning modules would be ''in accordance with section 10(12) of the act . . . .'' IRRC suggested that the appropriate fees and fee exemption be listed in the section for easy reference by the public and the regulated community. The section has been revised to incorporate this suggestion.
Subsection (b) of the proposal provided that any subsequent submission of a planning module following denial would be considered a new submission for purposes of establishing review fees. During the comment period the Department discerned the need to clarify when a second planning module review fee would be charged to an applicant. The revised language limits additional review fees to those cases where substantial changes to the original submittal were made subsequent to the denial.
Chapter 72--Administration of the Sewage Facilities Permitting Program 20. Section 72.21 (relating to general)
Subsection (f) of the proposal would have provided that property owners bear the costs of activities associated with conducting, observing or confirming percolation tests. This provision has been modified in these final-form regulations to provide that the costs are to be borne only by property owners proposing a bonded disposal system under § 73.77 (relating to general requirements for bonded disposal systems) when soil mottling is present. This would make the section consistent with the requirement of section 7.2(a)(1) of the act that the local agency perform a percolation test at the owner's expense when the owner of the property requests such a test if the local agency has determined that soil mottling is present.
21. Section 72.22 (relating to permit issuance)
As proposed, subsection (b) would have been amended to provide for permits for certain connections to an existing onlot system involving not only repair, as is currently required, but also a disturbance, modification or enlargement of a treatment tank, soil absorption area or spray field. A number of commentators suggested that the subsection, as proposed, would require a permit when a septic tank is dug open and the lid lifted, when the tank is pumped or a manhole access is added, or for unclogging a line in an absorption area. This was not the intent of the proposal, and this subsection has accordingly been clarified. A permit would be required for alterations or connections to an existing onlot system when the alterations or connections require the repair, replacement or enlargement of a treatment tank or retention tank. Permits would also be required for the repair, replacement, disturbance, modification or enlargement of a soil absorption area or spray field, or the soil within or under a soil absorption area or spray field.
Subsection (g) of the proposal (subsection (h) in these final-form regulations), which incorporated the provisions of section 7(a)(1) of the act, provided that a permit would not be required for a sewage system in those situations where a new dwelling is proposed to replace a previously existing dwelling when the size and anticipated use of the new dwelling is the same as the previously existing dwelling and that dwelling was in use within 1 year prior to the anticipated date of the completion of the new dwelling. One commentator expressed a concern that sewage enforcement officers would be compelled to condone the connection for a replacement dwelling even if the existing system had illegal repairs, modifications or alterations made to it. The Board disagrees. The language of subsection (g) is based on the language appearing in section 7(a)(1) of the act. Moreover, the conditions described by the commentator are generally violations of the act and the local agency has the authority to cite owners of systems if illegal repairs or alterations were made. However, the language of this subsection has been modified to more clearly outline the circumstances which would qualify the size and use of a new dwelling as being equal to those of the previously existing dwelling. Size and use determinations would be based on absorption areas and sewage flows.
22. Section 72.26(c) (relating to denial of permits)
As outlined in the proposal, this subsection concerned procedures related to the waiver of retesting and reapplication fees following denial of an application after verification of testing conducted by a previous sewage enforcement officer. During the comment period, the Department discerned a potential issue related to which a sewage enforcement officer's denial of the application would affect the fee waiver. The language has been clarified to describe that the sewage enforcement officer denying the application, for purposes of subsection (c), is a currently employed sewage enforcement officer, not a prior one.
3. Section 72.31 (relating to conditions related to installation of permit exempt systems)
The existing provisions of this section outline indemnification requirements for persons installing permit exempt systems. The Department discerned an incorrect reference to ''this section'' in that the language of the section refers to permit exemptions under § 72.31. Section 72.31 contains no permit exemptions. The permit exemptions are outlined in other sections of this chapter, such as § 72.32 (relating to sales contracts). Accordingly, references to ''this section'' have been changed to ''this chapter.''
As noted in the text of the proposal, the provisions of subsection (b) were proposed to be incorporated into § 72.32(a). These final-form regulations effectuate that proposal by deleting subsection (b).
24. Section 72.32 (relating to sales contracts)
The proposal incorporated the provisions of certain sections of the act which require that contracts for the sale of lots under certain circumstances contain specific provisions. Two new subsections have been added to these final-form regulations. Proposed subsection (e) is relettered (g). New subsection (e) provides that contracts for the sale of lots for which a required revision for new land development, exception to the requirement to revise or a required supplement has not been approved are to include language clearly indicating to the buyer that sewage facilities are not available to that lot and will not be available, nor may construction begin, until sewage facilities planning has been approved. New subsection (f) incorporates the provisions of section 7(a) of the act which requires certain language in contracts for the sale of lots for which there is no existing community sewage system.
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