[30 Pa.B. 111]
[Continued from previous Web Page] Permit requirements for timber harvesting and road maintenance activities--Several commentators recommended that the Board reduce the area of disturbance requirement for permitting of timber harvesting and road maintenance activities requiring erosion and sediment control permits. The Board has not proposed changes for these activities. The final-form regulations require that persons proposing or conducting earth disturbance activities associated with timber harvesting and road maintenance activities that involve 25 acres or more of earth disturbance obtain erosion and sediment control permits.
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 approaches of the SFI and 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.
Reduction of acreage requirements--One commentator recommended that the Board delete the provision allowing the Department to reduce permit acreage requirements by notice. The Board has deleted this procedure from the final-form regulations in response to the comment.
Permit fee increase for Erosion and Sediment Control Permits--Several commentators requested that the Board clarify, evaluate and provide a justification for the proposed increase in permit fees. The proposed fee increase for erosion and sediment control permits from $200--$500 only applies to earth disturbances of 25 acres or more associated with timber harvesting and road maintenance activities. The fee for NPDES permits, including NPDES permit for stormwater discharges associated with construction activities is established under § 92.22 (relating to application fees). The fee for erosion and sediment control permits is intended to cover the administrative costs of the Department and districts processing the permit applications, including administrative completeness review, data management, coordination and other related activities. The fee of $500 was calculated using an average time of 25 hours of effort per permit review at a rate of $20 per hour.
Pennsylvania Natural Diversity Inventory (PNDI) provisions--Several commentators recommended that the Board clarify and explain why PNDI provisions were added and what criteria the Department and Districts will use in making PNDI determinations.
The Department cooperates with several natural resource agencies including the Department of Conservation and Natural Resources; the Fish and Boat Commission; the Game Commission; and the United States Fish and Wildlife Service, in determining impacts to threatened and endangered species. These resource agencies consider if a proposed activity adversely impacts known or documented occurrences of a Pennsylvania or Federal threatened or endangered species, and consult with the applicant and the Department to recommend preventive measures that can be taken.
Projects which require permits, that is, projects of 5 or more acres requiring an NPDES permit for stormwater discharges associated with construction activities, or 25 or more acres for an erosion and sediment control permit, require PNDI coordination. This requirement is consistent with the Department policy to consult the PNDI prior to issuing permits and with the EPA requirements for NPDES permits to protect listed species and critical habitat under the Federal Endangered Species Act.
County conservation district plan review fees--Several commentators questioned why an applicant must pay the permit application fee, along with an additional fee charged by districts.
The permit application fee is intended to cover the administrative costs of the Department's and district's processing of NPDES permit applications. The Board, through Chapter 102 or other regulations, does not establish plan review fees for districts. The State Conservation Commission authorizes districts, under the authority of the Conservation District Law, to charge fees for the review of erosion and sediment control plans and other services.
Local permit coordination--Commentators requested clarification on municipal notification requirements and the potential burden it places on both municipalities and NPDES permitting authorities. The Board has revised the final-form regulations to require notifications for projects needing a Department permit under Chapter 102. The Department and districts have an ongoing outreach program designed to educate and update municipal officials on a regular basis. The Department has also developed guidance on implementation of model ordinances and Memorandums of Understanding (MOU) with municipalities to assist in this requirement. It is anticipated that many municipalities will be covered under EPA's proposed Phase II NPDES stormwater permit program when those regulations are finalized. The Board anticipates that continuing this coordination process will help satisfy municipal obligations for erosion and sediment control ordinances under this EPA proposal.
Enforcement provisions--A commentator recommended that the final-form regulations should indicate the penalties or enforcement provisions that may be used to enforce Chapter 102, or include a statutory citation to the potential penalties or actions.
The Clean Streams Law sets forth a variety of enforcement mechanisms that may be used to enforce failures to develop, implement or maintain an erosion and sediment control plan, or to obtain an NPDES or erosion and sediment control permit. The Board has revised the final regulations to include enforcement provisions in §§ 102.31 and 102.32. These sections identify the statutory citation of The Clean Streams Law, and some of the compliance and enforcement mechanisms available to the Department or districts. In addition, the language in section 316 of The Clean Streams Law which applies to agricultural operations that fully implement and maintain a complete conservation plan developed by a Conservation District and the USDA, Natural Resource Conservation Service (NRCS) has been added in § 102.32(b).
G. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of the final-form regulations.
Benefits
The citizens of this Commonwealth will benefit from these amendments. This Commonwealth's waters will be protected from the effects of accelerated erosion and the potential of sediment pollution. Special provisions provide enhanced protection for waters classified as High Quality and Exceptional Value under Chapter 93. The regulated community is expected to benefit from these regulatory revisions through the streamlining and clarification of permit requirements, plan preparation requirements and more flexible performance based BMPs. A cost savings to the regulated community of approximately $150,000 is expected as a result of the elimination of the requirements for erosion and sediment control plans for earth disturbance activities less than 5,000 square feet. The regulations continue to support the delegation of the erosion and sediment control program to local conservation districts, where the majority of the program is implemented, which facilitates effective and timely authorizations to proceed with projects.
Compliance Costs
These final-form regulations are not expected to result in significant changes in compliance costs for those persons proposing or conducting earth disturbance activities. Compliance costs will be less for many projects less than 5,000 square feet, which are exempted from planning requirements. Costs to the regulated community may be incurred in the form of: permit application fees; the consideration and prevention of endangered and threatened species impacts; and the consideration of special measures to address earth disturbance activities in High Quality and Exceptional Value Waters.
Compliance Assistance Plan
The Department assists the regulated community in complying with these regulations through technical and educational assistance, and through partnership with county conservation districts. These efforts have resulted in local community based initiatives which stimulate awareness and achieve regulatory compliance. Department staff have worked extensively with conservation districts to develop and enhance their professional abilities and technical capabilities. District staff provide an efficient and effective local source of assistance as well as an efficient mechanism for the protection of valuable resources. Evaluations of conservation district performance have shown that district staff can provide a quick response to process, review, and acknowledge permit applications, and readily assist in obtaining performance-based compliance.
The Department's outreach efforts have allowed stakeholders to work together with regulators to achieve the goal of protecting water quality and the aquatic environment through erosion and sediment control efforts. Erosion and sediment control is a central theme in the SFI and the Dirt and Gravel Road Program. Involvement of the public and the regulated community in the development of these cooperative erosion and control protection efforts fosters subsequent compliance with regulatory standards and practices and is an important form of compliance assistance.
The Department will continue to assist the regulated community with compliance through the development of checklists, worksheets and permit review letters to aid in developing sound pollution prevention plans. Compliance can also be enhanced by assuring that Department and conservation district reviews are timely, effective and consistent. The regulations incorporate a performance-based approach which allows persons conducting earth disturbances broad latitude and flexibility in designing BMPs to achieve compliance.
Paperwork Requirements
No additional paperwork is anticipated to comply with the final requirements. A net reduction in paperwork is anticipated through the regulatory exemption of plan development for projects under 5,000 square feet.
H. Pollution Prevention
Pollution prevention approaches to environmental management often provide environmentally sound and longer-term solutions to environmental protection because pollution is prevented at the source. Pollution prevention is defined by the EPA as measures taken to avoid or reduce generation of all types of pollution--solid/hazardous waste, wastewater discharges and air emissions--at their points of origin. It does not include activities undertaken to treat, control or dispose of pollution once it is created. The Federal Pollution Prevention Act of 1990 established a National policy and an environmental management hierarchy that promotes pollution prevention as the preferred means for achieving state environmental protection goals. The hierarchy is as follows:
a. Pollution should be prevented or reduced at the source.
b. Pollution that cannot be prevented should be recycled in an environmentally safe manner whenever feasible.
c. Pollution that cannot be prevented or recycled should be treated in an environmentally safe manner whenever feasible to render it less hazardous, toxic or harmful to the environment.
d. Disposal or other release into the environment should be employed only as a last resort and should be conducted in an environmentally safe manner.
The short and long-term health of this Commonwealth's economy depends on clean air, pure water and the preservation of the natural, scenic, historic and aesthetic values of the environment. To meet this Commonwealth's economic development and environmental protection goals successfully, the Commonwealth needs to adopt programs like pollution prevention that not only protect the environment but also significantly reduce costs and increase the competitiveness of the regulated community. When pollution is prevented up front, it can reduce a company's bottom-line costs and overall environmental liabilities often by getting the company out of the regulatory loop. It also can get the Department out of the business of regulating pollution that may not need to be generated in the first place.
In keeping with Governor Ridge's interest in encouraging pollution prevention solutions to environmental problems, these final-form regulations have incorporated several provisions to meet that goal.
First, § 102.2 provides a pollution prevention approach by requiring that BMPs for earth disturbance activities minimize accelerated erosion and sedimentation to protect, maintain, restore and reclaim water quality, and existing and designated uses of waters of this Commonwealth, thereby preventing pollution.
Second, § 102.4 requires that persons proposing an earth disturbance activity in a High Quality or Exceptional Value watershed must include special BMPs such as special sediment basin requirements, nonerosive channel linings, increased conveyance capacities, accelerated stabilization schedules, or other approved alternative BMPs which protect High Quality and Exceptional Value water from degradation. These measures work in conjunction with the Department's antidegradation program to ensure not only the prevention of pollution, but also the maintenance and protection of the existing quality of High Quality and Exceptional Value designated and existing uses.
Third, § 102.4 requires that Erosion and Sediment Control Plans shall contain requirements for the recycling or disposal of materials from the project site.
Fourth, § 102.11 provides that BMPs for earth disturbance activities must protect designated and existing uses classified under Chapter 93.
I. Sunset Review
These final-form regulations will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulations effectively fulfill the goals for which they were intended.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on January 20, 1998, the Department submitted a copy of the proposed amendments to the Independent Regulatory Review Commission (IRRC), and the Chairpersons of the Senate and House Environmental Resources and Energy Committees. In compliance with section 5(c) of the Regulatory Review Act, the Department also provided IRRC and the Committees with copies of the comments, as well as other documentation.
In preparing these final-form regulations, the Department has considered the comments received from IRRC, the Committees and the public. These comments are addressed in the Comment and Response Document and summarized in Section F of this Preamble. The Senate and House Environmental Resource Energy Committees did not provide comments on the proposed rulemaking.
These final-form regulations were deemed approved by the House and Senate Environmental Resources and Energy Committees on October 25, 1999. IRRC met on November 4, 1999, and approved the regulations in accordance with section 5.1(e) of the Regulatory Review Act (71 P. S. § 745.5a(e)).
K. Findings
The Board finds that:
(1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law, and all comments were considered.
(3) These regulations do not enlarge the purpose of the proposal published at 28 Pa.B. 769.
(4) These final-form regulations are necessary and appropriate for administration and enforcement of the authorizing acts identified in Section C of this Preamble.
L. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 102, are amended by amending §§ 102.1, 102.2, 102.4, 102.5, 102.11, 102.22, 102.31, 102.32 and 102.41--102.43; by deleting §§ 102.3, 102.12, 102.13, 102.21, 102.23, 102.24 and 102.51 and by adding §§ 102.6 and 102.7 to read as set forth in Annex A.
(b) The Chairperson of the Board shall submit this order and Annex A to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form, as required by law.
(c) The Chairperson shall submit this order and Annex A to IRRC and the Senate and House Environmental Resources and Energy Committees as required by the Regulatory Review Act.
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.
(e) This order shall take effect immediately upon publication.
JAMES M. SEIF,
Chairperson(Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 29 Pa.B. 5963 (November 20, 1999).)
Annex A
TITLE 25. ENVIRONMENTAL PROTECTION
PART I. DEPARTMENT OF ENVIRONMENTAL PROTECTION
Subpart C. PROTECTION OF NATURAL RESOURCES
ARTICLE II. WATER RESOURCES
CHAPTER 102. EROSION AND SEDIMENT CONTROL
GENERAL PROVISIONS § 102.1. Definitions.
The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:
Accelerated erosion--The removal of the surface of the land through the combined action of human activities and the natural processes, at a rate greater than would occur because of the natural process alone.
Agricultural plowing or tilling activity--Earth disturbance activity involving the preparation and maintenance of soil for the production of agricultural crops.
BMPs--Best management practices--Activities, facilities, measures, or procedures used to minimize accelerated erosion and sedimentation to protect, maintain, reclaim and restore the quality of waters and the existing and designated uses of waters within this Commonwealth.
Channel--A natural or manmade water conveyance.
Collector--A channel, dike or other conveyance, constructed downslope of an earth disturbance activity for the purpose of collecting runoff from an existing or proposed disturbed area and conveying it to facilities for sediment retention or removal.
Conservation Plan--A plan that identifies conservation practices and includes site specific BMPs which minimize the potential for accelerated erosion and sediment from agricultural plowing or tilling activities.
(i) BMPs for agricultural plowing or tilling activities, including soil loss tolerance values (t), are identified in the Pennsylvania Soil and Water Conservation Technical Guide, United States Department of Agriculture, Natural Resources Conservation Service, 1991.
(ii) The Conservation Plan shall include a schedule for the implementation of the BMPs.
County conservation district--A conservation district, as defined in section 3(c) of the Conservation District Law (3 P. S. § 851(c)), which has the authority under a delegation agreement executed with the Department to administer and enforce all or a portion of the erosion and sediment control program in this Commonwealth.
Dewatering zone--The zone within a sediment basin where stormwater runoff is held and released in a controlled manner.
Disturbed area--Unstabilized land area where an earth disturbance activity is occurring or has occurred.
Diversion--A facility, including a channel, terrace or dike constructed up-slope of an earth disturbance activity for the purpose of diverting runoff away from an existing or proposed disturbed area.
Earth disturbance activity--A construction or other human activity which disturbs the surface of the land, including, but not limited to, clearing and grubbing, grading, excavations, embankments, land development, agricultural plowing or tilling, timber harvesting activities, road maintenance activities, mineral extraction, and the moving, depositing, stockpiling, or storing of soil, rock or earth materials.
Erosion--The natural process by which the surface of the land is worn away by water, wind or chemical action.
Erosion and sediment control permit--A permit required for earth disturbance activities of 25 acres (10 hectares) or more where the earth disturbance is associated with timber harvesting or road maintenance activities.
Erosion and Sediment Control Plan--A site-specific plan identifying BMPs to minimize accelerated erosion and sedimentation. 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.
Municipality--
(i) A county, city, borough, town, township, school district, institution or authority created by any one or more of the foregoing.
(ii) For purposes of this definition, town includes an incorporated town.
NOI--Notice of Intent--A request, on a form provided by the Department or county conservation district, for coverage under a General NPDES permit for stormwater discharges associated with construction activities.
NPDES--National Pollutant Discharge Elimination System--The National system for the issuance of permits under section 402 of the Federal Clean Water Act (33 U.S.C.A. § 1342) including a state or interstate program which has been approved in whole or in part by the EPA.
NPDES permit for stormwater discharges associated with construction activities--A permit required for the discharge or potential discharge of stormwater into waters of this Commonwealth from construction activities, including clearing and grubbing, grading and excavation activities involving 5 acres (2 hectares) or more of earth disturbance, or an earth disturbance on any portion, part or during any stage of, a larger common plan of development or sale that involves 5 acres (2 hectares) or more of earth disturbance over the life of the project.
Operator--A person who has one or more of the following:
(i) Oversight responsibility of earth disturbance activity on a project site or a portion thereof and has the ability to make modifications to the Erosion and Sediment Control Plan or site specifications.
(ii) 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.
Perimeter BMPs--BMPs placed or constructed along the perimeter of an earth disturbance area to prevent runoff from entering the disturbed area, or to capture and treat sediment runoff prior to leaving a disturbed area.
Person--An operator, natural person, partnership, association or corporation or an agency, instrumentality or entity of Federal or State government, including a municipality.
Permanent stabilization--Long-term protection of soil and water resources from accelerated erosion.
Permanent pool--The area within a sediment basin which is designed to be inundated with water at all times.
Principal spillway--The structure within a sediment basin which controls the discharge of water from the facility.
Project site--The entire area of activity, development or sale including:
(i) The area of an earth disturbance activity.
(ii) The area planned for an earth disturbance activity.
(iii) Other areas which are not subject to an earth disturbance activity.
Road maintenance activities--Earth disturbance activities within the existing road cross-section, such as grading and repairing existing unpaved road surfaces, cutting road banks, cleaning or clearing drainage ditches and other similar activities.
Sediment--Soils or other materials transported by surface water as a product of erosion.
Sedimentation--The action or process of forming or depositing sediment in waters of this Commonwealth.
Skim--To remove the uppermost portion of water within a sediment basin.
Stabilization--The proper placing, grading, constructing, reinforcing, lining, and covering of soil, rock or earth to insure their resistance to erosion, sliding or other movement.
Timber harvesting activities--Earth disturbance activities including the construction of skid trails, logging roads, landing areas and other similar logging or silvicultural practices.
Waters of this Commonwealth--Rivers, streams, creeks, rivulets, impoundments, ditches, watercourses, storm sewers, lakes, dammed water, wetlands, ponds, springs and other bodies or channels of conveyance of surface and underground water, or parts thereof, whether natural or artificial, within or on the boundaries of this Commonwealth.
§ 102.2. Scope and purpose.
(a) This chapter requires persons proposing or conducting earth disturbance activities to develop, implement and maintain BMPs to minimize the potential for accelerated erosion and sedimentation.
(b) The BMPs shall be undertaken to protect, maintain, reclaim and restore water quality and the existing and designated uses of waters of this Commonwealth.
§ 102.3. (Reserved).
§ 102.4. Erosion and sediment control requirements.
(a) For agricultural plowing or tilling activities, the following erosion and sediment control requirements apply:
(1) The implementation and maintenance of erosion and sediment control BMPs are required to minimize the potential for accelerated erosion and sedimentation, including for those activities which disturb less than 5,000 square feet (464.5 square meters).
(2) Written Erosion and Sediment Control Plans are required for agricultural plowing or tilling activities that disturb 5,000 square feet (464.5 square meters) or more of land.
(3) The landowner, and any lessee, renter, tenant or other land occupier, conducting or planning to conduct agricultural plowing or tilling activities are jointly and individually responsible for developing a written Erosion and Sediment Control Plan and implementing and maintaining BMPs, including those identified in the Erosion and Sediment Control Plan.
(4) The Erosion and Sediment Control Plan shall be designed to minimize the potential for accelerated erosion and sedimentation from agricultural plowing or tilling activities.
(5) The Erosion and Sediment Control Plan shall contain plan maps, soils maps, the location of waters of this Commonwealth, drainage patterns and a description of BMPs including tillage systems, schedules, and cost effective and technically practical conservation measures.
(6) The Erosion and Sediment Control Plan shall be available for review and inspection at the project site during each stage of the agricultural plowing or tilling activity.
(b) For earth disturbance activities other than agricultural plowing or tilling, the following erosion and sediment control requirements apply:
(1) The implementation and maintenance of erosion and sediment control BMPs are required to minimize the potential for accelerated erosion and sedimentation, including for those activities which disturb less than 5,000 square feet (464.5 square meters).
(2) A person proposing earth disturbance activities shall develop a written Erosion and Sediment Control Plan under this chapter if one or more of the following criteria apply:
(i) The earth disturbance activity will result in a total earth disturbance of 5,000 square feet (464.5 square meters) or more.
(ii) The person proposing the earth disturbance activities is required to develop an Erosion and Sediment Control Plan pursuant to this chapter under Department regulations other than those contained in this chapter.
(iii) The earth disturbance activity, because of its proximity to existing drainage features or patterns, has the potential to discharge to a water classified as a High Quality or Exceptional Value water pursuant to Chapter 93 (relating to water quality standards).
(3) The Erosion and Sediment Control Plan shall be prepared by a person trained and experienced in erosion and sediment control methods and techniques, and shall be designed to minimize the potential for accelerated erosion and sedimentation.
(4) Earth disturbance activities shall be planned and conducted to minimize the extent and duration of the disturbance.
(5) The Erosion and Sediment Control Plan shall contain the following:
(i) The existing topographic features of the project site and the immediate surrounding area.
(ii) The types, depth, slope, locations and limitations of the soils.
(iii) The characteristics of the earth disturbance activity, including the past, present and proposed land uses and the proposed alteration to the project site.
(iv) The amount of runoff from the project area and its upstream watershed area.
(v) The location of waters of this Commonwealth which may receive runoff within or from the project site and their classification pursuant to Chapter 93.
(vi) A written depiction of the location and type of perimeter and onsite BMPs used before, during and after the earth disturbance activity.
(vii) A sequence of BMP installation and removal in relation to the scheduling of earth disturbance activities, prior to, during and after earth disturbance activities.
(viii) Supporting calculations.
(ix) Plan drawings.
(x) A maintenance program which provides for inspection of BMPs on a weekly basis and after each measurable rainfall event, including the repair of the BMPs to ensure effective and efficient operation.
(xi) Procedures which ensure that the proper measures for the recycling or disposal of materials associated with or from the project site will be undertaken in accordance with this title.
(6) Where an earth disturbance activity may result in a discharge to a water of this Commonwealth classified as High Quality or Exceptional Value pursuant to Chapter 93, the person proposing the activity shall, as applicable, use the following Special Protection BMPs to maintain and protect the water from degradation:
(i) Special sediment basin requirements.
(A) Principal spillways shall be designed to skim water from the top 6 inches (15 centimeters) of the dewatering zone, or shall have permanent pools greater than or equal to 18 inches (46 centimeters) deep.
(B) The basin shall be designed with a flow length to basin width ratio of 4:1 or greater.
(C) The basin shall be designed so that it dewaters in at least 4 days and no more than 7 days when at full capacity.
(ii) Channels, collectors and diversions shall be lined with permanent vegetation, rock, geotextile or other nonerosive materials.
(iii) BMPs that divert or carry surface water shall be designed to have a minimum capacity to convey the peak discharge from a 5-year frequency storm.
(iv) Upon completion or temporary cessation of the earth disturbance activity, or any stage thereof, the project site shall be immediately stabilized.
(v) The Department or county conservation district may approve alternative BMPs which will maintain and protect existing water quality and existing and designated uses.
(7) The Erosion and Sediment Control Plan shall be available for review and inspection by the Department or the county conservation district at the project site during all stages of the earth disturbance activity.
(8) Upon complaint or site inspection, the Department or county conservation district may require that the Plan be submitted for review and approval to ensure compliance with this chapter.
(c) The Department or county conservation district may require other information necessary to adequately review a plan, or may require additional BMPs, on a case-by-case basis, when necessary to ensure the maintenance and protection of water quality and existing and designated uses.
§ 102.5. Permit requirements.
(a) Other than agricultural plowing or tilling, timber harvesting activities or road maintenance activities, a person proposing an earth disturbance activity that involves 5 acres (2 hectares) or more of earth disturbance, or an earth disturbance on any portion, part, or during any stage of, a larger common plan of development or sale that involves 5 acres (2 hectares) or more of earth disturbance over the life of the project, shall obtain a general or individual NPDES permit for stormwater discharges associated with construction activities prior to commencing the earth disturbance activity.
(b) A person proposing a timber harvesting or road maintenance activity involving 25 acres (10 hectares) or more of earth disturbance shall obtain an Erosion and Sediment Control Permit under this chapter prior to commencing the earth disturbance activity.
(c) A person proposing or conducting an earth disturbance activity approved under a Department permit issued under a chapter other than Chapter 92 (relating to National Pollutant Discharge Elimination System) or this chapter, which includes requirements to comply with Chapter 92 and this chapter, need not obtain an additional erosion and sediment control permit or NPDES permit for stormwater discharges associated with a construction activity.
(d) A person proposing or conducting agricultural plowing or tilling activities is not required to obtain an erosion and sediment control permit, or an NPDES permit for stormwater discharges associated with a construction activity, for these activities under this chapter.
(e) A person proposing or conducting an earth disturbance activity who is not required to obtain a Permit under this chapter shall comply with the other provisions of this chapter.
§ 102.6. Permit applications and fees.
(a) Permit requirements. A person proposing or conducting an earth disturbance activity which requires an Erosion and Sediment Control Permit or an NPDES permit for stormwater discharges associated with construction activities under § 102.5 (relating to permit requirements), shall:
(1) Submit to the Department or a county conservation district a complete application or notice of intent, an Erosion and Sediment Control Plan meeting the requirements of § 102.4 (relating to erosion and sediment control requirements), and other information the Department may require.
(2) Provide proof of consultation with the Pennsylvania Natural Diversity Inventory (PNDI) regarding the presence of a State or Federal threatened or endangered species on the project site. If the Department or county conservation district determines, based upon PNDI data or other sources, that the proposed earth disturbance activity may adversely impact the species or critical habitat, the person proposing the earth disturbance activity shall consult with the Department or county conservation district to avoid or prevent the impact. If the impact cannot be avoided or prevented, the person proposing the activity shall demonstrate how the impacts will be minimized in accordance with State and Federal laws pertaining to the protection of threatened or endangered flora and fauna and its habitat.
(b) Permit fees.
(1) Erosion and Sediment Control Permit applications for timber harvesting and road maintenance activities shall be accompanied by an application fee of $500.
(2) Applications and Notices of Intent for an NPDES Permit for Stormwater Discharges Associated with Construction Activities shall be submitted and accompanied by the fee established pursuant to Chapter 92 (relating to National Pollutant Discharge Elimination System).
§ 102.7. Permit termination.
(a) Upon permanent stabilization of the earth disturbance activity under § 102.22(c) (relating to permanent stabilization), the person who obtains permit coverage under this chapter shall submit a notice of termination to the Department or county conservation district.
(b) The notice of termination shall include:
(1) The facility name, address and location.
(2) The operator name and address.
(3) The permit number.
(4) The reason for permit termination.
EROSION AND SEDIMENT CONTROL
BMPs § 102.11. General requirements.
(a) A person 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. Various BMPs and their design standards are listed in the Erosion and Sediment Pollution Control Program Manual (Manual), Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-2134-008 (January 1996), as amended and updated.
(b) BMPs and design standards other than those listed in the Manual may be used when a person conducting or proposing to conduct an earth disturbance activity demonstrates to the Department or a county conservation district that the alternate BMP or design standard minimizes accelerated erosion and sedimentation to achieve the regulatory standards in subsection (a).
RESTORATION § 102.21. (Reserved).
§ 102.22. Permanent stabilization.
(a) Upon completion of an earth disturbance activity or any stage or phase of an activity, the site shall be immediately seeded, mulched or otherwise protected from accelerated erosion and sedimentation.
(b) Erosion and sediment control BMPs shall be implemented and maintained until the permanent stabilization is completed.
(c) For an earth disturbance activity or any stage or phase of an activity to be considered permanently stabilized, the disturbed areas shall be covered with one of the following:
(1) A minimum uniform 70% perennial vegetative cover, with a density capable of resisting accelerated erosion and sedimentation.
(2) An acceptable BMP which permanently minimizes accelerated erosion and sedimentation.
§ 102.23. (Reserved).
§ 102.24. (Reserved).
ENFORCEMENT § 102.31. Applicability.
The Department or a county conservation district may enforce this chapter under The Clean Streams Law (35 P. S. §§ 691.1--691.1001).
§ 102.32. Compliance and enforcement provisions.
(a) Compliance and enforcement actions under this chapter which may be pursued include the following. The actions listed are cumulative and the exercise of one action does not preclude the exercise of another. The failure to exercise an action will not be deemed to be a waiver of that action:
(1) Investigations and inspections.
(2) Response to complaints.
(3) Orders (including orders to remediate or restore).
(4) Civil penalty proceedings, except as provided in subsection (b).
(5) Summary proceedings.
(6) The suspension, revocation, withholding or denial of permits or approvals.
(7) Notices of violation.
(8) Actions in a court of competent jurisdiction, including requests for injunctive relief.
(9) Other administrative, civil, criminal or equitable action authorized by law.
(b) If the Department finds that pollution or a danger of pollution results from an act of God in the form of sediment from land for which a complete Conservation Plan has been developed by the county conservation district and the Natural Resource Conservation Service, and the plan has been fully implemented and maintained, the landowner shall be excluded from the penalties of the act.
RESPONSIBILITIES OF LOCAL
GOVERNING BODIES§ 102.41. Administration by county conservation districts.
(a) The Department may delegate by written agreement the administration and enforcement of this chapter to county conservation districts if they have adequate and qualified staff, and are or will be implementing the program identified in the delegation agreement.
(b) An acceptable program shall have the concurrence and approval of the governing body of the county in which the county conservation district operates.
(c) The Department will retain program administration and enforcement over projects which cross the political boundaries of county conservation districts unless otherwise authorized by the Department.
§ 102.42. Notification of application for permits.
A municipality or county which issues building or other permits shall notify the Department or county conservation district within 5 days of receipt of an application for a permit involving an earth disturbance activity consisting of 5 acres (2 hectares) or more.
§ 102.43. Withholding permits.
A municipality or county may not issue a building or other permit or final approval to those proposing or conducting earth disturbance activities requiring a Department permit until the Department or a county conservation district has issued the Erosion and Sediment Control or individual NPDES Permit, or approved coverage under the general NPDES Permit for stormwater discharges associated with construction activities under § 102.5 (relating to permit requirements).
IMPLEMENTATION § 102.51. (Reserved).
[Pa.B. Doc. No. 00-51. Filed for public inspection December 30, 2000, 9:00 a.m.]
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