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PA Bulletin, Doc. No. 00-51

RULES AND REGULATIONS

Title 25--ENVIRONMENTAL
PROTECTION

ENVIRONMENTAL QUALITY BOARD

[25 PA. CODE CH. 102]

Erosion and Sediment Control

[30 Pa.B. 111]

   The Environmental Quality Board (Board) by this order amends Chapter 102 (relating to erosion and sediment control). The amendments are the result of a comprehensive regulatory review required under Governor Ridge's Executive Order 1996-1 and the Department of Environmental Protection's (Department) Regulatory Basics Initiative (RBI). The amendments eliminate obsolete terms, simplify technical requirements for best management practices (BMP), update and clarify permit requirements, and integrate these regulations with current Federal National Pollutant Discharge Elimination System (NPDES) Permit Requirements for Stormwater Discharges associated with construction activities.

   This proposal was adopted by the Board at its meeting of September 21, 1999.

   A.  Effective Date

   These amendments shall become effective upon publication in the Pennsylvania Bulletin as final-form rulemaking.

   B.  Contact Persons

   For further information contact Kenneth F. Murin, Chief, Technical Services Section, Division of Waterways, Wetlands and Erosion Control, P. O. Box 8775, Rachel Carson State Office Building, Harrisburg, PA 17105-8775, (717) 787-6827, or William J. Gerlach, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, 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 amendments are also available electronically through the Department's Web site (http://www.dep.state.pa.us).

   C.  Statutory Authority

   The amendments are adopted under the authority of sections 5 and 402 of The Clean Streams Law (35 P. S. §§ 691.5 and 691.402); section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20); and section 11 of the Conservation District Law (3 P. S. § 859(2)), which provide the Board the authority to promulgate regulations, and the authority for the Department and delegated entities to regulate accelerated erosion and sediment from earth disturbance activities to waters of this Commonwealth.

   D.  Background and Purpose

   The purpose of this final-form rulemaking is to amend regulations found in Chapter 102 as part of the RBI and Executive Order 1996-1 (Regulatory Review and Promulgation). These initiatives are multistep processes to evaluate regulations considering several factors including whether requirements: are more stringent than Federal regulations unless justified by a compelling Commonwealth interest or required by State law; impose economic costs disproportionate to the environmental benefit; are prescriptive rather than performance-based; inhibit green technology and pollution prevention strategies; are obsolete or redundant; lack clarity; or are written in a way that causes significant noncompliance.

   Under the amendments, persons proposing or conducting earth disturbance activities are required to develop, implement and maintain erosion and sediment control BMPs. BMPs are utilized to provide a measurable performance-based requirement for earth disturbance activities to minimize accelerated erosion and the potential of sediment pollution. The final-form regulations have been written to provide performance-based objectives rather than mandate specific practices for all activities. Flexibility in meeting the performance requirements is provided by allowing the use of a variety of BMPs provided in the Department's Erosion and Sediment Pollution Control Program Manual (Manual). The final-form regulations also allow for the consideration of alternative BMPs not listed in the Manual which provide the same level or improved protection of water quality and existing and designated uses.

   Earth disturbance activities are regulated under Chapter 102. The amended revisions require the development of a written Erosion and Sediment Control Plan for all earth disturbances of 5,000 square feet or greater, earth disturbances in High Quality or Exceptional Value watersheds or when required by another Department regulation. Permit requirements have been amended to more clearly integrate the existing NPDES Stormwater Permit Requirements for Stormwater Discharges associated with construction activities. Construction activities having earth disturbances of 5 or more acres of land require an NPDES Permit for Stormwater Discharges Associated with Construction Activities. Earth disturbance activities associated with agricultural plowing or tilling, timber harvesting and road maintenance do not require coverage under the NPDES Permit for Stormwater Discharges Associated with Construction Activities. Persons conducting timber harvesting or road maintenance activities which involve 25 acres or more of earth disturbance must apply for and obtain coverage for an Erosion and Sediment Control Permit required under this chapter. Persons conducting agricultural plowing or tilling activities are required to develop plans and implement agricultural BMPs, but continue to be exempt from the permitting requirements in this chapter. Earth disturbance activities conducted under other Department permits issued under regulations which require compliance with Chapter 92 (relating to National Pollutant Discharge Elimination System) and Chapter 102, will not require a separate authorization under an Erosion and Sediment Control Permit, or an NPDES Permit for Stormwater Discharges Associated with Construction Activities.

   The amendments have been developed with valuable input from the general public, Federal, county, municipal, industry, environmental and consulting representatives, and from the Department's internal review of its regulations.

   The proposed rulemaking was published at 28 Pa.B. 769 (February 7, 1998). A 60-day public comment period on the proposal expired on April 8, 1998. Three public hearings were held by the Board: March 9, 1998, Leesport; March 11, 1998, Slippery Rock; and March 18, 1998, State College. Approximately 300 comments were received from 36 commentators through public hearings and written comments. A summary of the comments and responses are provided in Section F of this Preamble.

   Initial drafts of the proposed revisions have been placed on the Department's Web site and presented to and discussed with the Agricultural Advisory Board (AAB), the Water Subcommittee of the Air and Water Quality Technical Advisory Committee (AWQTAC) and other representative groups. Additional comments have been provided by county conservation districts, State and Federal agencies and the regulated community, as part of the RBI public input process. Draft versions of the proposed amendments were presented to the AAB on December 18, 1996, February 26, 1997, April 23, 1997, and June 25, 1997, and to AWQTAC on December 10, 1996, February 20, 1997, and April 17, 1997. Both Committees raised comments and questions on a number of issues.

   In addition, the Department has been working with several groups of stakeholders in addressing the use of BMPs for timber harvesting and road maintenance activities. The Department supports the nonregulatory approach of the Sustainable Forestry Initiative (SFI), and the Dirt and Gravel Road Task Force (DGRTF), in promoting, educating and training persons conducting these activities to use BMP techniques and standards to minimize accelerated erosion and thereby enhance the quality of this Commonwealth's waters. After considering the AWQTAC's comments, and the nonregulatory approaches of the SFI and DGRTF, the Department is proposing to continue the current regulatory framework that requires persons proposing or conducting timber harvesting and road maintenance activities to complete an Erosion and Sediment Control Plan, and implement BMPs, but does not require them to obtain a permit under Chapter 102 if the activities disturb less than 25 acres. An Erosion and Sediment Control Permit continues to be required for timber harvesting and road maintenance activities that disturb 25 acres or more.

   The final-form regulations were presented to the Water Resources Advisory Committee (WRAC) at the May 12, 1999, meeting and the AAB at the June 16, 1999, meeting for discussion. The WRAC approved the amended final regulations on May 12, 1999, and the AAB approved the final regulations on June 16, 1999.

   At the WRAC meeting, the Department was asked to clarify that road maintenance activities apply to existing paved and unpaved roads. The Department explained that road maintenance typically includes shoulder cutting, road grading, ditch cleaning and similar activities. Road construction and roadway reconstruction is not considered road maintenance.

   The WRAC suggested that the purpose of the regulations should be to prevent pollution from sediment. The Department stated that the regulations do prevent pollution by requiring the installation and use of BMPs to protect existing and designated uses of waters of this Commonwealth.

   Questions were raised about the inclusion of BMPs for High Quality and Exceptional Value Waters in the regulations while other BMPs are listed in the Manual. The Department included special protection BMPs in the regulations at the suggestion of commentators and to emphasize special protection for these resources. To meet its RBI commitment, the regulations provide for a performance based standard which allows for alternate BMPs in special protection waters when the BMPs will maintain and protect existing water quality and existing and designated water uses.

   In nonspecial protection waters, the Department's Manual lists a wide range of BMPs available to meet the regulatory standard of minimizing the potential for accelerated erosion and sedimentation to protect, maintain, reclaim and restore water quality and existing and designated uses, without being prescriptive. Alternate BMPs may be utilized where they meet the regulatory standard.

   At the AAB meeting, the AAB recommended that the Department include a definition for ''conservation plan,'' include enforcement provisions applying to agricultural practices consistent with The Clean Streams Law, and clarify who was qualified to develop an Erosion and Sediment Control Plan. The AAB approved the amendments with the understanding that their recommendations would be included in the final rulemaking. The regulations have been revised as recommended by the AAB.

   E.  Summary of Regulatory Revisions in the Final Rulemaking

   Section 102.1.  Definitions.

   Definitions in this chapter include revisions, additions and deletions, in response to comments received on the proposed rulemaking package.

   The definition of ''agricultural plowing or tilling activity'' is clarified to specifically refer to the preparation and maintenance of soil for the production of agricultural crops.

   The term ''BMPs--best management practices'' is revised in response to comments relating to the use of the terms ''improve'' and ''aquatic environment.'' ''Improve'' is replaced with the term ''reclaim and restore'' to more closely track The Clean Streams Law. ''Aquatic environment'' is replaced with ''existing and designated uses'' to be consistent with the water quality standards program.

   A definition for ''channel'' has been added at the suggestion of a commentator.

   The term ''collector'' is amended to require that collected water be conveyed to facilities for sediment retention or removal.

   The term ''conservation plan,'' which was proposed for deletion, is included in the final rulemaking at the request of the AAB to be consistent with The Clean Streams Law and to clarify erosion and sediment control requirements for agricultural plowing or tilling.

   A definition for ''county conservation district'' is added. The term is defined as ''county conservation districts'' which have the authority under a delegation agreement with the Department to administer and enforce the erosion and sediment control program. With this term added, the term ''designee'' is no longer required and is deleted.

   The term ''dewatering zone'' is added to identify that portion of a sediment basin where stormwater runoff is held and released in a controlled manner.

   The term ''disturbed area'' is revised to identify those land areas not stabilized where an earth disturbance activity is occurring or has occurred.

   The term ''earth disturbance'' is clarified to ensure that clearing activities in and of themselves are not considered earth disturbance activities, whereas ''clearing and grubbing'' activities are considered earth disturbances.

   ''Erosion and Sediment Control Permit'' is clarified to eliminate confusion with NPDES permits. Timber harvesting activities or road maintenance activities which involve 25 acres or more of earth disturbance are required to secure an Erosion and Sediment Control Permit.

   The term ''Erosion and Sediment Control Plan'' is modified to require BMPs to be identified on the plan. Also, language is added which provides that, for agricultural plowing or tilling activities, the Erosion and Sediment Control Plan is that portion of a conservation plan identifying BMPs to minimize accelerated erosion and sedimentation.

   The proposed terms ''minimum sediment storage elevation'' and ''minimum storage elevation'' are no longer used in the body of the regulations and are deleted.

   The term ''NPDES Permit for Stormwater Discharges Associated with Construction Activities'' is amended to clarify that this permit is required for potential discharges into waters of this Commonwealth over the life of the project, and to specify that clearing alone does not require an NPDES permit.

   A minor revision is made to the definition of the term ''NOI--Notice of Intent'' to incorporate the reference to county conservation districts.

   The term ''operator'' is added to be consistent with the Federal NPDES program and to clarify who is responsible for securing NPDES stormwater permits associated with construction activities. The term includes persons who have oversight responsibility of earth disturbance activity on a project site with the authority to modify site plans and persons who have day to day control over the earth disturbance activity on a project site or portion thereof.

   The proposed term ''outlet structure'' is no longer used in the regulations and is deleted.

   The term ''perimeter BMPs'' is added to describe the specific types of BMPs developed and implemented on project perimeters to divert water around the project site or to capture water for treatment.

   The term ''person'' is modified to include operators.

   The term ''permanent stabilization'' has been added and is defined as long-term protection of soil and water resources from accelerated erosion.

   The term ''permanent pool'' has been added and is defined as an area within a basin that is designed to be permanently inundated with water.

   A definition for ''principal spillway'' is added to clarify that the function of the structure is to regulate the discharge of water from a basin.

   The term ''project site'' is amended to be consistent with Federal requirements and includes the entire project area disturbed or planned to be disturbed.

   The term ''road maintenance activities'' is clarified to apply to maintenance activities on existing unpaved roads and other similar activities within the existing road cross section.

   The term ''skim'' is added to describe the removal of the upper most portion of water within a sediment basis.

   Section 102.2.  Scope and Purpose.

   Sections 102.2 and 102.3 are merged into § 102.2 in response to comments received during the proposed rulemaking process. Commentators stated that these sections were redundant and could be clarified by combining the requirements into one section. The revisions maintain the emphasis and focus on protecting, maintaining, reclaiming and restoring water quality through the implementation of BMPs that minimize accelerated erosion from earth disturbance activities.

   Section 102.3.  Reserved.

   This section, formerly titled ''Purpose,'' is deleted in its entirety as a result of combining §§ 102.2 and 102.3.

   Section 102.4.  Erosion and Sediment Control Planning Requirements.

   Section 102.4 consolidates the proposed § 102.4 ''General'' and § 102.5 ''Erosion and Sediment Control Plan'' requirements into one comprehensive section. The Department has reformatted the regulations to distinguish erosion and sediment control requirements for agricultural plowing or tilling activities from other earth disturbance activities. The regulations specify the circumstances where written erosion and sediment control plans are required as those earth disturbance activities which:

   (1)  Involve 5,000 square feet (464 square meters) or more of earth disturbance;

   (2)  Are located in special protection waters; or

   (3)  Require a plan under another Department regulation.

   This section is also amended to include specific BMPs for maintaining and protecting water quality in High Quality and Exceptional Value Waters.

   Section 102.5.  Permit Requirements.

   Permit requirements are moved from § 102.31 ''Permit requirements'' to § 102.5. Minor revisions to the final-form of the regulations are provided for clarity and readability.

   Section 102.6.  Permit Applications and Fees.

   This section consolidates language from § 102.31 ''Permit requirements'' and § 102.32, ''Permit application and fees'' to clarify permit application and fee requirements for erosion and sediment control permits and NPDES permits for stormwater discharges associated with construction activities.

   Section 102.7.  Permit Termination.

   This section is added to the regulations to clarify the procedures for terminating coverage under either an erosion and sediment control permit or an NPDES permit for stormwater discharges associated with construction activities. Both permits can be terminated by the permittee or copermittee prior to the expiration date of the permit provided permanent stabilization is achieved.

   Section 102.11.  General Requirements.

   This section establishes the general regulatory standard that persons conducting or proposing to conduct an earth disturbance activity shall design, implement and maintain BMPs to minimize the potential for accelerated erosion and sedimentation to protect, maintain, reclaim and restore water quality and existing and designated uses. In response to the recommendation of commentators, BMPs to achieve the regulatory standard are listed in the Department's Manual. This provides the regulated community with a broad range of widely accepted and published performance-based BMPs to meet the substantive requirements of these regulations. The regulations also provide for the consideration of alternative BMPs, not currently in the Manual, provided the alternative BMPs meet the performance criteria of the regulations to maintain, protect, reclaim and restore water quality and existing and designated uses.

   Sections 102.12 and 102.13.  Reserved.

   Section 102.12 ''Control measures'' and § 102.13 ''Control facilities'' are deleted in their entirety. BMPs are listed in the Department's Manual.

   Section 102.21.  Reserved.

   As a result of the reorganization and clarification of this chapter, § 102.21 ''Applicability'' is no longer required and is deleted.

   Section 102.22.  Permanent Stabilization.

   The regulation is revised to specify the criteria for implementing and maintaining BMPs to achieve permanent stabilization.

   Section 102.23.  Reserved.

   Section 102.23 ''Interim control measures'' is merged into § 102.22 ''Permanent stabilization.''

   Section 102.24.  Reserved.

   Section 102.24 ''Final measures'' is deleted.

   Section 102.31 and 102.32.  Compliance and Enforcement.

   Section 102.31 ''Permit requirements'' and § 102.32 ''Application for permit'' are revised in the final rulemaking. Permit requirements and application fees are now provided in §§ 102.5 and 102.6. Sections 102.31 and 102.32 now provide the compliance and enforcement provisions of this chapter. Section 102.32(b) has been added to ensure conformity with section 316 of The Clean Streams Law (35 P. S. § 691.316).

   Section 102.41.  Administration by County Conservation Districts.

   The regulation is clarified by specifically referring to county conservation districts instead of ''local governing bodies.''

   Section 102.42.  Notification of Application for Permits.

   The regulation is clarified by referring to county conservation districts instead of designee.

   Section 102.43.  Withholding Permits.

   For clarification, the Department uses the term ''municipality or county'' instead of ''local governing body.'' The Department has also clarified that this section only applies to final municipal approvals.

   Section 102.51.  Implementation.

   This section, written in 1972 when this regulation was originally implemented, is no longer necessary and is deleted.

   F.  Summary of Comments and Responses on the Proposed Rulemaking

   The proposed rulemaking was published at 28 Pa.B. 769. A 60-day public comment period on the proposal expired on April 8, 1998. Three public hearings were held by the Board. Approximately 300 comments were received from 36 commentators through public hearings and written comments. A summary of the comments and responses follows:

   Temporary and permanent BMPs--The Board received several comments that indicated that commentators were confused about temporary and permanent erosion and sediment control BMPs. To eliminate confusion, the Board has eliminated references to temporary and permanent BMPs. Erosion and sediment control BMPs include both temporary structural and temporary and permanent stabilization practices.

   Structural practices, such as silt fence, ditches and sediment basins collect, divert, store and treat stormwater runoff to protect against accelerated erosion and the discharge of sediment from disturbed areas, during and immediately after the earth disturbance activity. These temporary BMPs are designed and implemented during the earth disturbance activity, and until vegetation or other permanent cover is established. Permanent structural BMPs required for postconstruction stormwater management are developed and implemented under municipal planning requirements. The Department encourages plan developers to design compatible practices for both construction and postconstruction characteristics.

   Stabilization is the covering of disturbed areas with vegetative (grass, trees, shrubs, sod, and the like) and nonvegetative (pavement, rock mulch, geotextiles, and the like) practices. Establishing either temporary or permanent stabilization can be the single most important BMP in reducing accelerated erosion and sedimentation. Temporary stabilization provides interim control of earth disturbance activities that have temporarily ceased and will resume at a later date, or is used until a permanent cover can be established. Permanent stabilization is achieved when perennial vegetation of uniform coverage and density is established, or by covering the disturbed area with permanent nonvegetative cover.

   County conservation districts should replace designee--A commentator stated that the reference to ''other local governing body'' is ambiguous and could conceivably lead to personal, political and territorial conflicts and that designee should be restricted to the county conservation district (district). The references to designee are deleted and references to county conservation districts have been added.

   Minimize versus prevent--The Board received comments in support of, and opposed to, the requirement to ''minimize'' rather than ''prevent'' accelerated erosion and sedimentation.

   The Board believes that the use of the term ''minimize'' is more appropriate than ''prevent.'' Erosion and sedimentation is a natural process that occurs even in the absence of human activity. The objective of this regulation is to minimize the accelerated erosion process from earth disturbance activities. Accelerated erosion, if unchecked, may adversely impact our waterways because of the increased sediment load beyond natural background levels. BMPs are effective, practical and environmentally sound practices that minimize the threat of pollution, and protect and maintain water quality and existing and designated uses. BMPs are designed to address site conditions such as slope, soil conditions, risk of erosion and other factors, to operate effectively during reasonably expected storm and rainfall events of normal duration and intensity. BMPs prevent sediment pollution during these storm events. The reference to the protection and maintenance of water quality and existing and designated uses assures protection of receiving waters.

   Water quality standards--The Board received comments suggesting that the Department adopt numeric water quality standards for sediment.

   Before numeric water quality criteria can be established for sediment, gaps in existing knowledge and research need to be addressed including: the establishment of a meaningful standard which accounts for natural background variability; the establishment of standard storm event intervals and the production of sediment above the natural background; the ability to identify and address cumulative effects within a watershed; and the establishment of an acceptable risk through models which are precise and accurate. Because of these gaps, at this time the Board does not believe that numeric sediment water quality standards can be incorporated into the regulations.

   5,000 square foot threshold--The Board received several comments on the establishment of a 5,000 square foot threshold for erosion and sediment control plan development. The commentators provided varied recommendations, mostly in support of establishing the 5,000 square foot requirement. Several commentators recommended increasing the requirement to a larger area (ranging from 10,000 square feet to one acre) or including exceptions for activities such as earth disturbances for single family lot development. One commentator recommended eliminating the threshold entirely and requiring written plans for all earth disturbance activities, regardless of the size of disturbance.

   The 5,000 square foot threshold provides a reasonable risk based planning measure for minor earth disturbance activities which do not present a significant threat when typical BMPs are utilized. Earth disturbance activities less than 5,000 square feet are generally minor in scope and duration and do not generally constitute a substantial risk to water quality. To assure water quality protection, the regulations specify several instances where erosion and sediment control plans are required for activities which disturb less than 5,000 square feet, such as an earth disturbance activity in special protection waters. This threshold for planning activities is also consistent with existing municipal requirements and established standards in the neighboring states of Delaware, Maryland and New Jersey.

   The Board agrees with the commentators that larger land disturbances of 5,000 square feet or greater can be conducted without significantly increasing the threat for accelerated erosion and sediment pollution provided BMPs are effectively designed, implemented and maintained. BMPs for projects greater than 5,000 square feet must be carefully selected and designed. A written plan is the most effective way to ensure that BMPs are effectively incorporated in an earth disturbance activity. The Board has clarified the final regulations by identifying specific planning criteria and elements to be included in an erosion and sediment control plan.

   Time frames for the review of erosion and sediment control plans/permits--The Board received comments which suggested that specific time frames consistent with the Money-Back Guarantee Program be included in the final-form regulations. The Board disagrees that the time frame established under the Money-Back Guarantee Program must be specified in the regulations. The Department's regional offices and county conservation districts endeavor to complete the review of all NOIs and applications for individual NPDES permit for stormwater discharges associated with construction activities within the time specified under the Money-Back Guarantee Program (150 days for Individual Permits and 100 days for NOIs). Also, under the Department's delegation agreements with districts, districts must ''. . . . Receive, review and process all NOIs for coverage under the Commonwealth's general permit for discharges of stormwater from construction activities and all individual permit applications for discharge of stormwater from construction activities within 30 days of receipt.''

   Registration of all plans greater than 5,000 square feet--The Board received comments recommending that all erosion and sediment control plans should be registered with the Department or the district. The Board does not believe that this additional administrative process will provide any additional water quality protection. The Department or delegated district has the authority to request erosion and sediment control plans to be submitted for any project to ensure the plan is adequate and provides effective protection for soil and water resources. This allows the Department and districts to exercise best professional judgment, and utilize considerations such as landscape position, proximity to watercourses, site conditions and potential for water quality impairment, in prioritizing staff resources and efforts.

   Professional engineer certification for erosion and sediment control plans--Several commentators suggested that the Board require that all erosion and sediment control plans be certified by a professional engineer. The regulations do not reserve the authority to develop erosion and sediment control plans to any specific profession, industry or individual since there are many differing and varied contexts in which earth disturbance activities are conducted such as agriculture, timber harvesting, road maintenance and residential and commercial construction.

   Qualifications required for districts--The Board received several comments regarding the qualifications of district staff who review erosion and sediment control plans. District staff in districts delegated the Chapter 102 and the NPDES stormwater construction programs are trained by the Department to ensure that they are qualified to review erosion and sediment control plans, and perform other functions required under the delegation agreements. District staff conducts reviews under the guidance, direction and assistance provided by the Department.

   Pennsylvania Soil and Water Technical Guide for Agriculture--The Board received several comments recommending that the technical design criteria for agricultural plowing or tilling activities be consistent with the USDA-Natural Resource Conservation Service (NRCS) Pennsylvania Technical Guide. The Board agrees with the commentators that the Pennsylvania Technical Guide provides effective and acceptable BMPs for agricultural plowing or tilling activities. The definition of ''conservation plan'' was added at the request of the AAB and specifically references the Technical Guide.

   BMP Manual--The Board received several comments recommending that the technical design criteria for BMPs in the final regulations should reference the Department's Manual. In response, the regulations have been amended to refer to the Manual as suggested. The Manual provides a broad range of performance based practices to meet the regulatory standard of minimizing accelerated erosion to protect, maintain, reclaim and restore water quality and existing and designated uses. In addition, the regulations allow for alternate BMPs to be used when they are as effective as the BMPs listed in the Manual.

   As a parallel effort to the regulatory revisions, the Department has created an ad hoc working group of six conservation districts from around the State (Armstrong, Berks, Centre, Columbia, Indiana and Monroe) to review and discuss revisions to the Manual to ensure that the latest BMP technology for erosion and sediment control is listed. When the recommendations from these six conservation districts are incorporated, the Department will make the draft revisions to the Manual available to conservation districts and advisory committees for review and comment, and establish a public comment period for the general public to review and comment on the proposed revisions.

   Larger plan of common development or sale/operator--Several commentators recommended that the Board provide a clarification of what it considers ''a larger common plan of development or sale that involves 5 acres or more of earth disturbance.'' The commentators recommend that the regulations include the criteria that will be used to reasonably determine if a project or activity will fall under a common plan of development and to include a definition of an ''operator.''

   The final Chapter 102 regulations are written to be consistent with Environmental Protection Agency (EPA) construction stormwater program requirements. When EPA reissued its NPDES General Permits for Stormwater Discharges from Construction Activities (63 F. R. 7859-7860) (February 17, 1998)), it provided answers to general questions on the construction stormwater permitting program. The EPA stated that: ''The 'plan' in a common plan of development or sale is broadly defined as any announcement or piece of documentation (including a sign, public notice, or hearing, sales pitch, advertisement, drawing, permit application, zoning request, computer design, etc.) or physical demarcation (including boundary signs, lot stakes, surveyor markings, etc.) indicating construction activities may occur on a specific plot. You must still meet the definition of operator in order to be required to get permit coverage, regardless of the acreage you personally disturb. As a subcontractor, it is unlikely you would need a permit.'' The Board believes that Chapter 102 conveys the same intent.

   The Board has clarified the final regulations by defining the term ''operator'' to be consistent with the EPA's description of the term at 63 F. R. 7859 (February 17, 1998). The Board defines ''operator'' consistent with the Federal description of the term as: The person with (1) oversight responsibility of earth disturbance activity on a project site or a portion thereof who has the ability to make modifications to the Erosion and Sediment Control Plan or site specifications; or (2) day-to-day operational control over earth disturbance activity on a project site or a portion thereof to ensure compliance with the Erosion and Sediment Control Plan.

   NPDES permits for construction activities and utilities--Several commentators recommended that the Board clarify the requirements for earth disturbances associated with utility line installation and associated requirements for an NPDES Permit for Stormwater Discharges Associated with Construction Activities.

   In new subdivisions or developments, utility line installations would normally be conducted under the authority of the NPDES permit secured by the developer or general contractor, or both. Where utility companies are extending lines or services, or conducting other earth disturbance activities outside the confines of a new development or subdivision, the utility company would be the project operator in control of the project and the utility company would be required to secure the NPDES permit.

   NPDES permit for stormwater discharges associated with construction activities requirements for oil and gas activities--The Board received several comments that averred that the proposed amendments were more stringent than Federal regulation for earth disturbance associated with oil and gas exploration and production activities. The provisions in the amended Chapter 102 regulations are no more stringent than Federal requirements. The Board has determined that discharges of stormwater from construction activities associated with oil and gas exploration and production activities are regulated under the Federal NPDES stormwater program and therefore cannot be exempt from State NPDES stormwater permit requirements. Since October 1992, the Department and county conservation districts have authorized discharges from construction activities in this Commonwealth under Federal NPDES requirements, including those construction activities associated with oil and gas development and associated activities.

   Under the Federal program, oil and gas operations are addressed under the construction category and the mineral industry category. Under the construction category, the EPA has established that erosion, sediment and pollution control should be addressed in all pollution prevention plans for the oil and gas exploration and production activities, particularly where the industrial activity has the potential to disturb vegetation or natural runoff patterns and exacerbate erosion. Where the construction of the drilling site or any construction of facilities for the oil and gas exploration and production would disturb or is part of a plan to develop which would disturb 5 acres or more, that construction activity is defined as having a stormwater discharge associated with industrial activity which requires separate permitting. In this case, the EPA requires an NPDES permit for the stormwater discharge from the construction activity (60 F. R. 51166). This is also explained as colocated industrial activities.

   Section 402(l)(2) of the Clean Water Act (33 U.S.C.A. § 1342(l)(2)), places a limitation on permit requirements from stormwater runoff from oil and gas operations. Under this section, the EPA cannot require an NPDES permit or require a state to require an NPDES permit for discharges of stormwater runoff from oil and gas exploration, production, processing or treatment operations or transmission facilities, composed entirely of flows which are from conveyances or systems of conveyances used for collecting and conveying precipitation runoff and which are not contaminated by contact with, or do not come into contact with, any overburden, raw material, intermediate product, finished product, byproduct or waste products located on the site of the operation. As part of the mineral industry category, the EPA includes this limitation in 40 CFR 122.26(c)(1)(iii) and only requires the operation to submit an application for a discharge of stormwater when the facility has been a discharger of stormwater resulting in the discharge of a reportable quantity under 40 CFR 117.21, 40 CFR 110.6 or contributes to a violation of a water quality standard.

   Permit requirements for earth disturbances of 5 acres or more--Several commentators believe that a permit requirement for 5 acres or more of earth disturbance activities will add paperwork, create significantly more applications and create a bottleneck in the approval process.

   The 5 acre permitting requirement is a Federal requirement which has been in place since October 1992. The Board's amendments to Chapter 102 are intended to integrate the Federal requirements into Chapter 102. Since the Department has implemented the Federal NPDES permit for stormwater discharges associated with construction activities requirement since October 1992, the Board does not expect that applications or paperwork will be increased or that the approval process will become burdensome under Chapter 102.

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