RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 91, 97 AND 101]
Wastewater Management
[30 Pa.B. 521] The Environmental Quality Board (Board), by this order, amends Chapters 91 and 97 (relating to general provisions; and industrial wastes) and deletes Chapter 101 (relating to special water pollution regulations). As part of the proposal and an advance notice of final rulemaking (ANFR), certain provisions of Chapters 97 and 101 were proposed to be transferred to Chapter 91. A notice of proposed rulemaking regarding these amendments was published at 27 Pa.B. 4343 (August 23, 1997) and an ANFR was published at 29 Pa.B. 2145 (April 24, 1999).
This order was adopted by the Board at its meeting of September 21, 1999.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information contact Milt Lauch, Chief, Division of Wastewater Management, P. O. Box 8465, Rachel Carson State Office Building, Harrisburg, PA 17105-8465, (717) 787-8184, or William S. Cumings, Jr., 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). This final rulemaking is available electronically through the Department's Web site (http://www.dep.state.pa.us).
C. Statutory Authority
This final-form rulemaking is being made under the authority of section 5 of The Clean Streams Law (35 P. S. § 691.5), which provides for the promulgation of rules and regulations for the implementation of The Clean Streams Law, and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510.20), which provides for the promulgation of rules and regulations of the Department of Environmental Protection (Department) by the Board.
D. Background and Summary
At a meeting held on June 17, 1997, the Board adopted a proposal to amend Chapter 91, delete portions of Chapter 97 and to delete Chapter 101. As part of that regulatory proposal, certain provisions of Chapters 97 and 101 were proposed to be transferred to Chapter 91.
The purpose of the proposed amendments was to support the Department's pollution prevention strategies, make the application of new green technologies easier and eliminate obsolete regulations. The changes outlined in the proposed rulemaking were designed to assist industries and individuals proposing new or innovative ways to prevent pollution through modifications to waste streams or wastewater processes and those proposing new technologies to treat wastewater by eliminating regulatory barriers to these activities. The elimination of obsolete regulations simplifies and clarifies the existing regulations for those applying for permits for wastewater treatment facilities. The consolidation of Chapter 101 into Chapter 91 and the transfer of several sections of Chapter 97 to Chapter 91 provide a single source of regulations regarding related wastewater issues. A notice of proposed rulemaking regarding these amendments was published at 27 Pa.B. 4343.
Subsequent to the publication of the notice of proposed rulemaking, the Department undertook an initiative to control the water quality impacts of manure from agricultural operations mandated by the concentrated animal feeding operation (CAFO) requirements of the Federal Clean Water Act. The Department convened a stakeholder group consisting of representatives from various groups to assist in developing a CAFO strategy.
At 28 Pa.B. 2728 (June 16, 1998), a notice was published regarding the development of a proposed strategy and related permit documents to regulate CAFOs within this Commonwealth. Following publication of the notice of the proposed CAFO Strategy, the Department held four public meetings/hearings throughout this Commonwealth. Over 125 people attended the public meetings/hearings. In addition, the Department received written comments from over 100 commentators on the proposed CAFO Strategy. In response to the comments, the Department made a number of revisions to the proposed CAFO Strategy. These revisions were outlined, further revised and adopted at a meeting of the stakeholders held on February 4, 1999. A notice of the availability of the ''Final Strategy for Meeting Federal Requirements for Controlling the Water Quality Impacts of Concentrated Animal Feeding Operations'' (the CAFO Strategy) was published at 29 Pa.B 1439 (March 13, 1999).
The intent of the CAFO Strategy ''is to ensure that all concentrated animal feeding operations are constructed and managed in an environmentally sound manner, while ensuring agricultural producers an opportunity to pursue agricultural production which is profitable, economically feasible and based on sound technology and practical production techniques.'' (See, CAFO Strategy p. 1).
With respect to the construction and operation of animal manure storage facilities, the CAFO Strategy outlines a requirement for a Part II Water Quality Management Permit for facilities where a CAFO of more than 1,000 animal equivalent units is proposed. Animal equivalent units are calculated in accordance with the Nutrient Management Act (3 P. S. §§ 1701--1718) and the regulations promulgated thereto in Chapter 83 (relating to State Conservation Commission). It was specifically acknowledged in the CAFO Strategy that some elements of the strategy would ''. . . . require new regulations to create Water Quality Management Part II permit . . . . requirements.''
Accordingly, the Department prepared an ANFR to provide the public an opportunity to comment on revisions to the proposed rulemaking necessary to implement the CAFO Strategy, particularly with respect to wastewater impoundments at agricultural operations. The ANFR also invited comment on certain proposed pollution prevention measures and other changes resulting from comments and suggestions submitted during the public comment period for the proposed amendments to Chapter 91. Notice of the ANFR was published at 29 Pa.B. 2145.
A draft of the ANFR was reviewed and approved by the Water Resources Advisory Committee (Committee) at a meeting held on May 12, 1999. A draft of the ANFR was also reviewed by the Agricultural Advisory Board at a meeting held on April 21, 1999. Comments made by these groups at these and other meetings resulted in several amendments which were incorporated into the final-form regulations.
E. Summary of Comments and Responses on the Proposed Rulemaking and the Advance Notice of Final Rulemaking
Section 91.1 (relating to definitions).
This section of the proposal outlined new or revised definitions related to the Department's wastewater program intended to clarify previously undefined terms used in Chapter 91.
The Board received a number of comments on the proposed definitions of ''industrial waste'' and ''sewage.'' The commentators believe that the proposed definitions are inconsistent with the terms as defined in The Clean Streams Law. To avoid confusion, terms defined in The Clean Streams Law have been deleted in the final rulemaking. Thus, the definitions of ''industrial waste,'' ''person,'' ''sewage'' and ''waters of this Commonwealth'' have been deleted.
As noted in section D of this Preamble, the ANFR outlined proposed amendments related to wastewater impoundments at agricultural operations and pollution prevention measures in certain sections of the regulations. Appropriate definitions are being added to complement those amendments. Thus, the terms ''agricultural operations,'' ''animal equivalent unit'' and ''manure storage facility'' were added. These definitions are based on definitions of those terms as defined in the Nutrient Management Act and the regulations promulgated thereto. In addition, definitions of the terms ''pollution prevention'' and ''pollution prevention measures'' are added.
The proposal included a definition of ''NPDES Permit.'' Two commentators suggested that the proposed definition was unclear because it did not explain what the term ''requirements'' as used in the definition connotes. Since the phrase ''NPDES Permit'' is not used elsewhere in this final-form rulemaking, the definition has been deleted.
The ANFR outlined requirements applicable to wastewater impoundments at agricultural operations. Section 91.35 (relating to wastewater impoundments) outlines certain requirements related to freeboard. One commentator suggested that the term be defined. This term is defined in the ''Pennsylvania Technical Guide'' published by the Natural Resources Conservation Service of the United States Department of Agriculture. Since the term is defined therein, the Board does not believe it is necessary to define the term in this final-form rulemaking.
The proposed definition of ''stormwater'' defined that term as ''stormwater runoff, snow melt runoff and surface runoff and drainage.'' It was suggested that this definition was somewhat circuitous and not very useful. The definition has been revised to read ''runoff from precipitation, snow melt runoff and surface runoff and drainage.''
The proposal contained a definition of ''wastewater impoundment.'' The Board received comments on this definition which indicated that the definition describes what an impoundment is, but does not address the wastewater component of the term being defined. The definition has been clarified by adding a phrase at the end of the definition to indicate that it applies to a depression, excavation or facility ''used to store wastewater including sewage, animal waste or industrial waste.''
The definition of ''water quality management permit'' has been slightly modified in response to a concern that the location of a reference to ''Part II permit'' in the proposal created an ambiguity. The phrase ''or requirements'' was also deleted to eliminate uncertainty as to its meaning.
Section 91.6 (relating to pollution prevention).
The proposal noted that the language of existing § 97.14 (relating to measures to be used) was proposed to be moved to this section with slight modification. The ANFR indicated language of this section was proposed to be revised to include a tie-in to the definitions of ''pollution prevention'' and ''pollution prevention measures'' outlined in the ANFR. The ANFR also outlined a hierachy of pollution prevention measures for environmental management to be considered by a permittee. In addition, the identity of persons doing the pollution prevention such as the permittee or the industrial discharger to a publicly owned treatment works (POTW) would be indicated. The practice involving ''segregation of strong wastes'' where the strong waste is then treated is not true pollution prevention. If, however, the strong waste is separated for reuse within a process, then it is pollution prevention. Finally, the ANFR indicated that the last part of the existing section, which provides that the '' . . . term 'practical' is not limited to that which is profitable or economical'' might actually hinder pollution prevention efforts and would, therefore, be deleted.
This final-form rulemaking has been revised to provide that the Department will encourage pollution prevention by providing assistance to permittees and users of the permittee's facilities in the consideration of pollution prevention measures. The Department will encourage the consideration of the following measures, in descending order of preference, for the environmental management of wastes: reuse, recycling, treatment and disposal.
The Department received comments regarding other pollution prevention provisions in the ANFR. One commentator suggested that the Department provide some basis for the statement in the ANFR that the sentence referring to the term ''practical'' would actually hinder pollution prevention efforts. The Department believes that the sentence limits the scope of considerations regarding pollution prevention. There are pollution prevention remedies that are implemented through modified housekeeping practices that may result in little or no economic consequences, but have positive environmental ones.
One commentator noted that the ANFR added language listing the preferred order in which measures for waste management should be considered. The commentator further stated the new language also states that ''pollution prevention measures used currently or proposed shall be encouraged and acknowledged in the water quality management permit applications.'' It is asserted the new provisions are not written in regulatory language and would be more appropriately placed in a guidance document or policy statement. One commentator suggested that the use of the words ''considered'' and ''encouraged'' lack force and, therefore, is a ''waste of words.'' The commentator believes the language should be rewritten to give it force.
The Department does not agree with these comments. As noted previously, the language has been revised to indicate the Department will be encouraging and providing assistance in the consideration of pollution prevention measures. It is the Department's policy to achieve integration of pollution prevention and resource recovery practices through a voluntary effort and not by mandating controls through regulatory requirements. The Department believes that by approaching pollution prevention in this manner, the regulated community will strive to go beyond compliance, thereby resulting in greater benefit to the public and the environment. The provision providing that information regarding pollution prevention measures is to be submitted with the water quality management permit application has been deleted.
Section 91.11 (relating to compliance conferences).
This section provides, in part, that the Department will provide advice and suggestions to those required to abate pollution of the waters of this Commonwealth. Among other things, the advice may include measures for the treatment or prevention of pollution. The ANFR clarified this section to provide a tie-in to the definition of ''pollution prevention measures.'' Thus, this portion of the regulation provides that the Department will provide advice regarding possible means for abatement of the pollution in question through pollution prevention measures or treating the waste if prevention is not possible.
Section 91.15 (relating to basin-wide compliance).
This section, as proposed by the Board, provided that the Department would require sources of pollutants in a basin, watershed or surface water to concurrently comply with the standards in Chapters 93 and 95 (relating to water quality standards; and wastewater treatment requirements) as well as the statement of policy outlined in Chapter 16 (relating to water quality toxics management strategy--statement of policy). Some commentators did not believe the reference to the statement of policy was clear enough to indicate that the statement of policy is nonbinding. The ANFR added language making it clear that Chapter 16 relates to a statement of policy and not a regulation. That language has been retained in this final-form rulemaking in a slightly modified form. Statements of policy are by their very nature nonbinding.
Section 91.27 (relating to general permits).
The proposal outlined requirements applicable to water quality management general permits. One commentator provided extensive comments challenging the legal and policy basis for the issuance of these permits. The commentator asserted that The Clean Streams Law provides no authority for the issuance of water quality management general permits; unlike certain other laws administered by the Department which contain specific authority for the issuance of general permits, The Clean Streams Law has no such provision; the general permit provisions do not provide adequate opportunity for public review and participation; the provisions are lacking in detail as to the terms and conditions of the permit; the review of notices of intent is inadequate; and the compliance history review provisions are allegedly inadequate. The commentator's comments are outlined in more detail in the Comment and Response Document prepared for this rulemaking and are available upon request.
The Board and the Department believe The Clean Streams Law provides authority for the issuance of water quality management general permits. Section 5(b)(1) of The Clean Streams Law (35 P. S. § 691.5(b)(1)), provides authority for the Board to ''formulate, adopt, promulgate and repeal such rules and regulations . . . as are necessary to implement the provisions of [The Clean Streams Law].'' This authority is sufficiently broad to authorize the issuance of general permits. The NPDES general permit program was established under the authority of this section of The Clean Streams Law.
With respect to opportunity for public comment, § 91.27(b)(1) clearly requires public notice and an opportunity to comment. That section provides that the Department will publish a notice in the Pennsylvania Bulletin of its intent to issue or amend a general permit. Interested persons are given an opportunity to provide written comments on the proposed general permit.
Insofar as the terms and conditions of the permit are concerned, they must be activity specific. It is not possible to outline the terms and conditions applicable to every water quality management general permit. The public will be provided an opportunity to give comments and suggestions on a general permit proposed to be issued by the Department.
The provisions regarding commencement of coverage in subsection (b)(3) have been substantially revised. The proposal outlined four scenarios for the commencement of coverage under a general permit. Subparagraphs (ii) and (iv), which would have authorized commencement of coverage on a date specified in the general permit or upon receipt of a notice of intent by the Department, have been deleted in the final rule. Subparagraph (i) of the proposal would have provided that coverage could begin after a waiting period specified in the general permit. This language has been revised to provide that coverage could begin ''after a waiting period following receipt of the notice of intent by the Department as specified in the general permit.'' The language of proposed subparagraph (iii), which provides that coverage could begin upon receipt of notification of coverage by the Department is being retained in this final-form rulemaking, but renumbered as subparagraph (ii).
Subsection (b)(4) of the proposal was entitled ''Coverage Under a General Permit.'' One commentator suggested that the title be clarified to make it clear that the subsection applies to notices of intent for coverage under a general permit. This suggestion has been incorporated into this final-form rulemaking. The commentator also questioned why there was qualifying language at the end of the subsection which appeared to provide an exception for notices of intent since the qualification related to criteria for denial of coverage. The qualifying language has been deleted from the final rule.
The proposal also indicated the Department would review the information provided in a notice of intent to determine if the wastewater treatment facility qualified under the provisions of the general permit. This language has been revised in this final-form rulemaking to indicate the Department will review the information for completeness or to determine whether a facility qualifies under the provisions of the general permit.
Subsection (c) of the proposal provided that coverage under a general permit could be denied if certain conditions were met. Subsection (c)(2) of the proposal provided that coverage under a general permit may be denied if an applicant has not first obtained NPDES permits required by Chapter 92. One commentator suggested that the requirement that an applicant for a general permit ''first'' obtain an NPDES permit be revised to provide, at a minimum, for concurrent submittal of an NPDES permit application. This suggestion has been incorporated into the regulation by deleting the word ''first.'' In addition, the reference to ''NPDES'' has been deleted while still retaining the reference to permits required under Chapter 92. Finally, a phrase has been added at the end of the subsection to indicate that this subsection applies when NPDES permits are required. This change is intended to allow the issuance of water quality management general permits when an NPDES permit is not required.
Subsection (c)(4) of the proposal provided that coverage would be denied if an applicant has a ''significant history of noncompliance with a prior permit issued by the Department.'' Some commentators questioned the meaning of ''significant history of noncompliance.'' To ensure that the compliance review criterion is consistent with the standard in section 609(2) of The Clean Streams Law (35 P. S. § 691.609(2)), the language has been revised in this final-form rulemaking to provide that coverage under a general permit may be denied if the applicant ''has failed and continues to fail to comply or has shown a lack of ability or intention to comply with a prior permit issued by the Department.''
It was suggested that publishing notices of applications for general permits in local newspapers and the Pennsylvania Bulletin would help to ensure that affected parties are aware of and have the opportunity to comment on a pending general permit. One commentator suggested that the Board explain why it is not in the public interest to require this notice if it chooses not to adopt the recommendation.
The Board does not believe it would be helpful to require publication of all applications for general permits in the Bulletin and in local newspapers as suggested by the commentators. To adopt the suggestion made by the commentators would affect all other general permits administered by the Department. Wastewater facilities which would qualify for coverage under a general permit are expected to have little or no impact on the environment. For example, the construction of a small flow treatment facility to repair a malfunctioning onlot sewage system would improve environmental quality and have no measurable impact on the receiving stream. Imposing additional costs and delays for local newspaper publication would exacerbate an environmental problem which needs to be corrected. However, the Department will publish notices of actions by the Department regarding general permit applications in the Pennsylvania Bulletin. Actions of the Department granting or denying coverage under a general permit will be published, thus providing an opportunity to appeal these actions.
Subsection (e) of the proposal was entitled ''Termination of general permit.'' One commentator noted that the subsection describes when the applicability of a general permit to a specific facility is terminated and suggested that the title be changed to reflect this. Accordingly, the title has been revised to read ''termination of coverage under a general permit.''
Section 91.34 (relating to activities utilizing pollutants).
This section requires persons engaged in an activity involving the use of a pollutant to submit a report or plan to the Department outlining measures to be taken to prevent the pollutant from reaching waters of this Commonwealth upon notice from the Department. The ANFR clarified this section to suggest that the use of pollution prevention measures is preferable to treatment. The language proposed in the ANFR is clarified in this final-form rulemaking. Thus, subsection (b) provides that the Department may require a person to submit a report or plan for activities such as the impoundment, production, processing, transportation, storage, use, application or disposal of polluting substances to prevent pollutants from reaching the waters of this Commonwealth. Subsection (b) has also been clarified to provide that the Department will encourage the use of pollution prevention measures in much the same manner as provided in § 91.6 and outlines a hierarchy for the consideration of the environmental management of wastes consisting of reuse, recycling, treatment and disposal.
One commentator asserted that these provisions are not written in regulatory language and would be more appropriately placed in a policy statement or guidance document. It is the Department's policy to achieve integration of pollution prevention and source recovery practices through a voluntary effort and not by mandating controls through regulatory requirements. It is believed that by approaching pollution prevention in this manner that the regulated community will strive to go beyond compliance, thereby resulting in greater benefit to the public at large and the environment.
Subsection (b) of the proposal also indicated that reports submitted to the Department regarding pollution prevention measures are to include other information such as the Department may require. One commentator asserted that the meaning of ''other information the Department may require'' is unclear. The quoted language has been deleted in this final-form rulemaking.
Section 91.35 (relating to wastewater impoundments).
The proposal indicated that the Department's regulations relating to wastewater impoundments, currently found in § 101.4 (relating to impoundments), would be transferred to this section, with slight editorial changes. Section 101.4 regulates the proper operation, maintenance and use of impoundments used for the production, processing, storage, treatment or disposal of polluting substances.
As indicated elsewhere in this Preamble, subsequent to the publication of the proposed rulemaking, the Department developed a ''Final Strategy for Meeting Federal Requirements for Controlling Water Quality Impacts of Concentrated Animal Feeding Operations.'' It was specifically acknowledged in the CAFO Strategy that some elements of that strategy would require new regulations regarding water quality management part II permits. In light of the CAFO Strategy and comments concerning the original proposal, the ANFR outlined new requirements applicable to wastewater impoundments at certain agricultural operations concerning freeboards for waste storage ponds and waste structures.
The ANFR outlined a proposed revision to subsection (c) relating to a requirement for a Water Quality Management Permit for an impoundment at a new or expanded manure storage facility at an agricultural operation with more than 1,000 animal equivalent units, regardless of the capacity of the impoundment. This requirement is retained in this final-form rulemaking.
The language proposed in subsection (d) of the ANFR provided that if an agricultural operation contains less than 1,001 animal equivalent units, the operation is not subject to the reporting or permit requirements of § 91.35(b) or (c), but must provide either a 12-inch freeboard for all waste storage ponds or a 6-inch freeboard for all waste storage structures. One commentator suggested that imposing the 2-foot freeboard requirement outlined in § 91.35(a) would be an unfair economic burden if there are no problems with overtopping at the facility since the facility was constructed in accordance with standards in effect at the time of construction. In light of this comment, a change has been made to subsection (d) exempting facilities in existence prior to the effective date of the regulations and in compliance with the ''Pennsylvania Technical Guide'' from the permitting requirements. Thus, subsection (d) is amended to provide that an agricultural operation which contains less than 1,001 animal equivalent units or an agricultural operation in existence prior to the effective date of the final rule and designed in accordance with the ''Pennsylvania Technical Guide'' is not subject to the requirements of subsection (b) or (c) or the freeboard requirements of subsection (a), but shall provide a 12-inch freeboard for all waste storage ponds and a 6-inch freeboard for all waste storage structures (as defined in the ''Pennsylvania Technical Guide'') at all times. Proposed subsection (d) is renumbered as subsection (e).
As was the case with the provisions relating to general permits, one commentator provided extensive comments asserting that the proposal to require water quality management permits for some animal manure storage facilities and not others fails to comply with The Clean Streams Law. The commentator also asserts that the proposed permit exemption for impoundments or facilities at agricultural operations with less than 1,001 animal equivalent units is unreasonable because it is asserted the Department requires other types of facilities of similar size to obtain a permit from the Department.
Section 5(b)(1) of The Clean Streams Law provides authority for the Board to ''formulate, adopt, promulgate and repeal such rules and regulations . . . as are necessary to implement the provisions of [The Clean Streams Law].'' This authority is sufficiently broad to allow promulgation of appropriate rules and regulations of the Department. In addition, a representative of the commentator was a member of, and actively participated in, the stakeholder's group which formulated the CAFO Strategy. That group reached a consensus that a Water Quality Management permit should not be required for smaller agricultural operations. This consensus was based, in part, on the track record of the agricultural community in meeting the Natural Resources Conservation Service standards and the proper operation of these facilities.
Section 91.36 (relating to pollution control and prevention at agricultural operations).
The proposed amendments provided for the transfer of the regulations relating to pollution control and prevention at agricultural operations currently outlined in § 101.8 to this section with minor changes. The proposal also proposed language to better identify the relationship between this section and the regulations in Chapter 83.
The Department adopted a CAFO Strategy. That strategy contained three elements which necessitated revisions to proposed § 91.36. These revisions were outlined in the ANFR. First, all manure storage facilities are to be designed in a manner consistent with the publications entitled ''Manure Management for Environmental Protection'' and the ''Pennsylvania Technical Guide'' and § 83.351 (relating to minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities), when applicable. Section 83.351 outlines minimum standards for the design, construction, location, operation, maintenance and removal from service of manure storage facilities. Second, all manure storage facilities are to be designed to prevent any discharges to surface waters during a storm event of less than a 25-year/24-hour storm. Finally, an engineer's certification would be required for all existing facilities with greater than 1,000 animal equivalent units. These requirements are retained in this final-form rulemaking.
One commentator agreed with the intent of the provision of subsection (a) related to engineer certification of the adequacy of existing manure storage facilities on agricultural operations with over 1,000 animal equivalent units. However, the commentator believes the requirement for consistency with the ''Pennsylvania Technical Guide'' raises the question of whether the freeboard criteria outlined in the Guide or the 2-foot freeboard requirement in § 91.35(a) applies. The commentator believes imposing the 2-foot freeboard requirement on existing facilities would be an unfair economic burden. As noted, § 91.35(d) has been revised to address this concern. If these facilities are permitted under a CAFO NPDES permit, the permit requirement will assure proper operation and maintenance of the existing facility within the design specifications under which it was constructed.
A number of commentators suggested that the ''Manure Management Manual for Environmental Protection'' is outdated. Some commentators also suggested that that manual does not reflect the more recently updated guidelines in the ''Pennsylvania Technical Guide.'' The comments are valid. The ''Manure Management Manual for Environmental Protection'' is currently being revised and updated to, among other things, ensure consistency with the ''Pennsylvania Technical Guide.'' It is anticipated that a draft of the revised manual will be distributed for public comment in the near future and will be placed on the Department's website.
One commentator noted that subsection (a)(2) in the ANFR outlines requirements for a permit in the event a person chooses to design a manure storage facility using criteria other than those described in the ''Manure Management Manual for Environmental Protection'' or the ''Pennsylvania Technical Guide.'' The commentator noted that the use of the word ''or'' in that subsection was inconsistent with subsection (a) which refers to design standards meeting the requirements of both documents. The word ''and'' has been added to replace ''or.''
One commentator noted that the Manure Management Manual and its supplements are currently undergoing revision to incorporate requirements outlined in the CAFO Strategy. The commentator believes that the field application supplement to the Manual indicates that nutrient management is to be based on phosphorous. The commentator believes it appears to conflict with section 4 of the Nutrient Management Act (3 P. S. § 1704) which indicates that ''there shall be a presumption that nitrogen is the nutrient of primary concern.''
The Board does not believe there is a conflict with the Nutrient Management Act. The intent of the Manure Management Manual and the field application supplement is to provide guidance addressing manure related water pollution concerns. These guidelines are designed to assist farmers in their efforts to minimize water pollution which will assist them in meeting the requirements of The Clean Streams Law. It is the Department's intent to make the guidelines in the Manual consistent with the ''Pennsylvania Technical Guide,'' the CAFO Strategy and the requirements of the Nutrient Management Act. The Chapter 91 permit requirements for land application of manure apply only when there is a pollution incident directly related to polluting surface or groundwater.
One commentator asserted the Department cannot exclude land application of manure from the permit requirements of The Clean Streams Law for the same reasons the commentator objects to the provisions authorizing general permits and those relating to impoundments. As noted in response to comments raised by the commentator regarding those issues, The Clean Streams Law provides sufficient authority for the Board to exercise some discretion in establishing permitting requirements by regulation. Moreover, the existing permit exemption for the land application of manure, as outlined in existing § 101.8(b), has been in effect since at least 1990. Finally, land application of manure is regulated under the Nutrient Management Act. The Board does not believe it is necessary to complicate the Nutrient Management Act requirements with a second layer of regulations for farmers.
The ANFR noted that an engineer's certification would be required for all existing facilities with over 1,000 animal equivalent units. The Department sought comment on whether there should be a lower threshold of animal equivalent units for new facilities located in special protection waters to precipitate the requirement for a water quality management permit. The Department received one comment in response to this issue. The commentator did not agree with establishing this threshold because he believed it went beyond the consensus of the CAFO stakeholders' group. The commentator suggested, however, that requiring an engineer's certification of existing manure storage facilities on concentrated animal operations with more than 300 animal equivalent units in special protection waters would be appropriate.
The Board believes the Natural Resources Conservation Service provides appropriate engineering supervision for the siting, design and installation of manure storage facilities at smaller agricultural operations. To require a second certification for existing facilities appears to be duplicative and an unnecessary expense for the agricultural community. Therefore, a lower threshold has not been established in this final-form rulemaking.
Section 91.37 (relating to private projects).
The language of this section, currently found in § 91.32, describes the Department's policy in reviewing permit applications in that it will look with disfavor upon private sewerage projects in built-up areas. One commentator suggested that it would be more appropriate to provide regulatory language. Accordingly, regulatory language has been added to subsection (a) providing that the Department will not approve applications for private sewerage projects in built-up areas unless the applicant can demonstrate a compelling public need for the project. Subsection (b) has been clarified to reflect this change. Subsection (b) contained a reference to ''proper'' private sewerage projects. The reference to ''proper'' has been deleted in this final-form rulemaking.
Section 91.51 and 91.52 (relating to underground disposal).
The proposed amendments adopted by the Board would have deleted the provisions of existing §§ 97.71--97.76 relating to underground disposal of wastes such as discharges into mines, abandoned wells, underground horizons and new wells and replace these provisions with a provision in proposed § 91.32 requiring compliance with 40 CFR Part 144 relating to underground injection control. The Department has not accepted delegation from the Environmental Protection Agency (EPA) for the administration of the underground injection control program. Subsequent to the proposal the Department received comments indicating that the Federal underground injection control program might be inadequate to address situations unique to this Commonwealth, particularly with respect to underground disposal to abandoned mines and abandoned wells. Accordingly, it was proposed in the ANFR to reinstate the provisions and requirements of existing §§ 97.71--91.76. These requirements are in new §§ 91.51 and 91.52. In addition, the ANFR indicated proposed § 91.32 would be deleted and reserved. This final-form rulemaking deletes § 91.32 as proposed in the ANFR.
F. Benefits, Costs and Compliance
Executive Order 1996-1 requires a cost/benefit analysis of this final-form rulemaking. It also requires a statement of the need for, and a description of, forms, reports or other paperwork required as a result of this final-form rulemaking.
This final-form rulemaking is necessary to implement the Department's Regulatory Basics Initiative and the goals of Executive Order 1996-1. The amendments will result in the promotion of pollution prevention strategies, eliminate regulations which inhibit the application of green technologies and eliminate obsolete regulations.
Benefits
Individuals, consultants, sewage treatment plant permittees and the public will benefit from the final amendments without reductions in protection of public health or the environment. The amendments will allow the Department staff more flexibility to recommend innovative remediation measures to attain compliance. In addition, the provisions regarding pollution prevention will provide new options when considering sewage treatment operational alternatives to achieve compliance. The amendments to § 91.25 regarding experimental projects will allow the consideration of new innovative technologies used in other states for use in this Commonwealth. In addition, the incorporation of appropriate provisions of Chapter 101 into Chapter 91 eliminates confusion among the regulated community as to which regulations are applicable. There are about 75 orders issued to treatment plant operators each year. It is estimated that about 1/4 of these facilities will choose to pursue pollution prevention as an option to the preparation of detailed plans. The cost associated for each of these facilities would be about $15,000. The cost savings for all facilities choosing pollution prevention as outlined in the final rule is estimated to be approximately $2,812,500 per year.
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
