[39 Pa.B. 5131]
[Saturday, August 29, 2009]
[Continued from previous Web Page] (3) In addition to other applicable requirements, persons required to obtain an Individual NPDES Permit for Stormwater Discharges Associated with Construction Activities for projects proposed in special protection watersheds shall evaluate and use BMPs in accordance with the antidegradation requirements of Chapter 93 (relating to water quality standards) regardless of whether the discharge is new, additional or increased.
(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] E & S Permit under this chapter prior to commencing the earth disturbance activity.
(c) A person proposing oil and gas activities that involve 5 acres (2 hectares) or more of earth disturbance over the life of the project shall obtain an E & S Permit under this chapter prior to commencing the earth disturbance activity.
(d) Other than agricultural plowing or tilling activities, animal heavy use areas, timber harvesting or road maintenance activities, a person proposing earth disturbance activities that involve 5 acres (2 hectares) or more of earth disturbance over the life of the project that do not require a permit under subsections (a), (b), (c), (g) and (i) shall obtain an E & S Permit under this chapter prior to commencing the earth disturbance activity.
(e) For earth disturbance activities authorized by a permit under this chapter, a preconstruction meeting is required unless the permittee has been notified otherwise in writing by the Department or conservation district. The permittee shall contact the Department or conservation district at least 7 days but not more than 30 days prior to the commencement of construction. Permittees, co-permittees, operators, and licensed professionals or designees responsible for critical stages of construction must attend a preconstruction meeting along with the Department or conservation district.
(f) A person proposing earth disturbance activities requiring a permit or permit coverage under this chapter shall be responsible to ensure implementation and long-term operation and maintenance of the PCSM Plan.
(g) 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 permitting, monitoring and compliance) or this chapter, which includes requirements to comply with Chapter 92 and this chapter, need not obtain an additional [Erosion and Sediment Control] E & S Permit or NPDES Permit for Stormwater Discharges Associated With Construction Activities.
(h) Operators who are not the permittee shall be co-permittees.
(i) A person proposing or conducting an earth disturbance activity associated with discharging dredged or fill material to waters of the United States which is required to obtain a permit or coverage under a permit under section 404 of the Clean Water Act (33 U.S.C.A. § 1344) need not obtain an additional E & S Permit or NPDES Permit for Stormwater Discharges Associated with Construction Activities for the area of disturbance covered by the Clean Water Act section 404 permit.
[(d)](j) A person proposing or conducting agricultural plowing or tilling activities or animal heavy use areas is not required to obtain an [Erosion and Sediment Control] E & S Permit, or an NPDES Permit for Stormwater Discharges Associated With Construction Activities, for these activities under this chapter.
[(e)](k) 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] a permit 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], or ROC, an [Erosion and Sediment Control] E & S Plan meeting the requirements of § 102.4 (relating to erosion and sediment control requirements), a PCSM Plan meeting the requirements of § 102.8 (relating to PCSM requirements), and other information the Department may require.
(2) Provide proof of consultation with the Pennsylvania Natural [Diversity Inventory (PNDI)] Heritage Program (PNHP) 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] PNHP 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.
(3) Prepare and implement a PPC Plan when storing, using or transporting materials including: fuels, chemicals, solvents, pesticides, fertilizers, lime, petrochemicals, wastewater, wash water, core drilling wastewater, cement, sanitary wastes, solid wastes, or hazardous materials onto, on, or from the project site during earth disturbance activities. The PPC Plan shall be available upon request by the Department or conservation district.
(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 permitting, monitoring and compliance).]
A person submitting a permit application, NOI or ROC shall submit a fee as follows:
(i) NPDES permit-by-rule--$2,500.
(ii) General NPDES Permit--$2,500.
(iii) Individual NPDES Permit--$5,000.
(iv) General E & S Permit--$2,500.
(v) Individual E & S Permit--$5,000.
(2) The Department will review the adequacy of the fees established in this section at least once every 3 years and provide a written report to the EQB. The report will identify any disparity between the amount of program income generated by the fees and the costs to administer these programs, and contain recommendations to adjust fees to eliminate the disparity, including recommendations for regulatory amendments.
(3) Conservation districts may charge additional fees in accordance with section 9(13) of the Conservation District Law (3 P. S. § 857(13)).
(c) Complete applications or NOI.
(1) An application or NOI for a permit is not complete until the necessary information and requirements under The Clean Streams Law (35 P. S. § 691.1--691.1001) and this chapter have been satisfied by the applicant.
(2) When the Department determines that an application or NOI is incomplete or contains insufficient information to determine compliance with this chapter, it will notify the applicant in writing. The applicant shall have 60 days to complete the application or NOI, or the Department will consider the application to be withdrawn by the applicant. Requests for a specific extension may be sought by the applicant in writing. The applicant will be notified in writing when an application or NOI is considered withdrawn. When an application or NOI is considered withdrawn, the Department will close the application file and take no further action to review the file.
(3) If the incomplete or deficient application is returned or withdrawn, the fees associated with filing the application will not be refunded.
§ 102.7. Permit termination.
(a) Upon permanent stabilization of the earth disturbance activity under § 102.22[(c)](a)(2) (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] must include:
* * * * * (5) An identification of the persons who will be responsible for operation and maintenance of the PCSM BMPs in accordance with the approved PCSM Plan.
(c) Until the permittee has received written acknowledgement an NOT, the permittee will remain responsible for compliance with the permit terms and conditions including operation and maintenance of all PCSM BMPs on the project site and is responsible for violations occurring on the project site.
§ 102.8. PCSM requirements.
(a) A person proposing an earth disturbance activity that requires NPDES permit coverage under this chapter or other Department permit that requires compliance with this chapter shall be responsible to ensure that a written PCSM Plan is developed, implemented, operated and maintained.
(b) The management of post construction stormwater shall be planned and conducted to the extent practicable in accordance with the following:
(1) Preserve the integrity of stream channels and protect the physical, biological and chemical qualities of the receiving stream.
(2) Prevent an increase in the rate of stormwater runoff.
(3) Minimize any increase in stormwater runoff volume.
(4) Minimize impervious areas.
(5) Maximize the protection of existing drainage features and existing vegetation.
(6) Minimize land clearing and grading.
(7) Minimize soil compaction.
(8) Utilize other measures or controls that prevent or minimize the generation of increased stormwater runoff and pollutants.
(9) Protect, maintain, reclaim and restore the quality of water and the existing and designated uses of waters within this Commonwealth.
(c) The PCSM Plan shall be planned, designed and implemented to be consistent with the E & S Plan under § 102.4(b) (relating to erosion and sediment and control requirements).
(d) Unless otherwise approved by the Department, the PCSM Plan must be separate from the E & S Plan and labeled ''PCSM'' or ''Post Construction Stormwater Management Plan'' and be the final plan for construction.
(e) The PCSM Plan shall be prepared by a person trained and experienced in PCSM design methods and techniques.
(f) The PCSM Plan must contain drawings and narrative requirements as described within this chapter and other supporting documentation. The PCSM Plan shall be designed to minimize the threat to human health, safety and the environment to the greatest extent practicable. PCSM Plans must contain at a minimum the following:
(1) The existing topographic features of the project site and the immediate surrounding area.
(2) The types, depth, slope, locations and limitations of the soils and geologic formations.
(3) The characteristics of the project site, including the past, present and proposed land uses and the proposed alteration to the project site.
(4) Identification of the net change in volume and rate of stormwater from preconstruction hydrology to post construction hydrology for the entire project site and each drainage area.
(5) Identification of the location of surface waters, which may receive runoff within or from the project site and their classification under Chapter 93 (relating to water quality standards).
(6) A written description of the location and type of PCSM BMPs including construction details for permanent stormwater BMPs including permanent stabilization specifications and locations.
(7) A sequence of PCSM BMP implementation or installation in relation to earth disturbance activities of the project site and a schedule of inspections for critical stages of PCSM BMP installation.
(8) Supporting calculations.
(9) Plan drawings.
(10) A long-term operation and maintenance schedule, which provides for inspection of PCSM BMPs, including the repair, replacement, or other routine maintenance of the PCSM BMPs to ensure effective and efficient operation. The program must provide for completion of a written report documenting each inspection and all BMP repair and maintenance activities and how access to the PCSM BMPs will be provided.
(11) Identification of the persons responsible for long-term operation and maintenance of the PCSM BMPS.
(12) Procedures, which ensure that the proper measures for the recycling or disposal of materials associated with or from the PCSM BMPs, are in accordance with Department laws, regulations and requirements.
(13) Identification of naturally occurring geologic formations or soil conditions that may have the potential to cause pollution after earth disturbance activities are completed and PCSM BMPs are operational, and development of a management plan to avoid or minimize potential pollution and its impacts.
(14) An evaluation of potential thermal impacts from post construction stormwater to surface waters and inclusion BMPs to avoid, minimize or mitigate potential pollution from thermal impacts.
(15) A Riparian Forest Buffer Management Plan when required under § 102.14 (relating to riparian forest buffer requirements).
(16) Additional information requested by the Department.
(g) PCSM Plans for proposed activities requiring a permit under this chapter require the following additional information:
(1) Analytical testing and assessment of soil, geology, and other predevelopment site characteristics including infiltration and geotechnical studies that identify location and depths of test sites and methods used.
(2) Analysis demonstrating that the PCSM BMPs will meet the volume reduction and water quality requirements specified in an applicable Department approved and current Act 167 stormwater management watershed plan; or manage the net change for storms up to and including the 2-year/24-hour storm event when compared to preconstruction runoff volume and water quality. The analysis for the 2-year/24-hour storm event shall be conducted using the following minimum criteria:
(i) Existing predevelopment nonforested pervious areas must be considered meadow in good condition or its equivalent.
(ii) When the existing project site contains impervious area, 20% of the existing impervious area to be disturbed must be considered meadow in good condition or better, except for repair, reconstruction, or restoration of roadways or utility infrastructure when the site will be returned to existing condition.
(3) Analysis demonstrating that the PCSM BMPs will meet the rate requirements specified in an applicable Department approved and current Act 167 stormwater management watershed plan; or manage the net change in peak rate for the 2-, 5-, 10-, 25-, 50-, and 100-year/24-hour storm events in a manner not to exceed preconstruction rates.
(i) Hydrologic routing analysis is required to demonstrate this requirement is met.
(ii) Exempt from this requirement are Department approved direct discharges to tidal areas or Department-approved no detention areas.
(4) Identify the methodologies for calculating the total runoff volume and peak rate of runoff and provide supporting documentation and calculations.
(5) Construction techniques or special considerations to address soil and geologic limitations.
(6) The Department may require, or after consultation with the Department a conservation district may require, additional information necessary to adequately review a PCSM 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.
(h) When a PCSM Plan is being developed for an activity that may result in a discharge to a water of this Commonwealth classified as High Quality or Exceptional Value under Chapter 93, the person proposing the activity shall use nondischarge and ABACT BMPs to maintain and protect the water from degradation. Specifically, the person proposing the activity shall use PCSM BMPs that collectively achieve no net change when compared to preconstruction discharges, in stormwater runoff volume, rate and water quality during storm events up to and including the 2-year/24-hour storm event. Nondischarge alternatives and ABACT BMPs and their design standards are listed in the Pennsylvania Stormwater Best Management Practices Manual Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-0300-002 (December 2006), as amended and updated.
(i) Upon complaint or site inspection, the Department or conservation district may require that the PCSM Plan be submitted for review and approval to ensure compliance with this chapter.
(j) The PCSM Plan, inspection reports and monitoring records shall be available for review and inspection by the Department or the conservation district.
(k) A licensed professional or a designee shall be present onsite and be responsible during critical stages of implementation of the approved PCSM Plan including underground treatment or storage BMPs, structurally engineered BMPs, or other BMPs as deemed appropriate by the Department.
(l) The permittee shall include with the notice of termination ''Record Drawings'' with a final certification statement from a licensed professional, which reads as follows:
''I (name) do hereby certify pursuant to the penalties of 18 Pa.C.S.A. § 4904 to the best of my knowledge, information and belief, that the accompanying record drawings accurately reflect the redline drawings, are true and correct, and are in conformance with Chapter 102 of the rules and regulations of the Department of Environment Protection and that the project site was constructed in accordance with the approved PCSM Plan and accepted construction practices.''(1) The permittee shall retain a copy of the record drawings as a part of the approved PCSM Plan.
(2) The permittee shall provide a copy of the record drawings as a part of the approved PCSM Plan to the person identified in this section as being responsible for the operation and maintenance of the PCSM BMPs.
(m) Unless a different person is approved in writing by the Department, operation and maintenance of PCSM BMPs shall be the responsibility of the landowner of the property where the PCSM BMP is located. The deed for any property containing a PCSM BMP shall identify the PCSM BMP and provide notice that the responsibility for operation and maintenance of the PCSM BMP is a covenant that runs with the land and that is enforceable by subsequent grantees. A grantor that fails to comply with this requirement shall remain jointly responsible with the landowner for operation and maintenance of the PCSM BMPs located on the property.
(n) The portion of a site reclamation or restoration plan that identifies PCSM BMPs to manage stormwater from oil and gas activities or mining activities permitted in accordance with Chapters 77 and 86--90, or a plan for abandoned mine land reclamation activities may be used to satisfy the PCSM Plan requirements of this section if the reclamation plan meets the requirements of subsections (b), (c), (e), (f), (h), (i) and (m).
EROSION AND SEDIMENT CONTROL AND POST CONSTRUCTION STORMWATER MANAGEMENT BMPs § 102.11. General requirements.
(a) A person conducting or proposing to conduct an earth disturbance activity shall [design]:
(1) Design, implement and maintain E & S BMPs to minimize the potential for accelerated erosion and sedimentation [in order] to protect, maintain, reclaim and restore water quality and existing and designated uses. Various E & S 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)] (April 2000), as amended and updated.
(2) If required to develop a PCSM Plan, design, implement and maintain PCSM BMPs to mimic preconstruction stormwater runoff conditions to protect, maintain, reclaim and restore water quality and existing and designated uses. Various PCSM BMPs and their design standards are listed in the Pennsylvania Stormwater Best Management Practices Manual (Stormwater BMP Manual), Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-0300-002 (December 2006), as amended and updated.
(3) If required to develop a riparian forest buffer, design, implement and maintain the buffer in accordance with § 102.14 (relating to riparian forest buffer requirements). Various design, construction, and maintenance standards are listed in the Riparian Forest Buffer Guidance, (Buffer Guidance), Commonwealth of Pennsylvania, Department of Environmental Protection, No. 395-5600-001 (2009), as amended and updated.
(b) BMPs and design standards other than those listed in the [Manual] Manuals or Buffer Guidance 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 or manages stormwater during and after the completion of earth disturbance activities to achieve the regulatory standards in subsection (a).
§ 102.14 Riparian forest buffer requirements.
(a) General requirements.
(1) Riparian forest buffer. Persons proposing or conducting earth disturbance activities shall incorporate a riparian forest buffer within the boundaries of the project site in accordance with this section if one of the following apply:
(i) The activity requires a permit under this chapter, is located within an Exceptional Value watershed, and the project site contains, is along or within, 150 feet of a river, stream, creek, lake, pond or reservoir.
(ii) The activity is authorized utilizing the permit-by-rule under this chapter.
(2) Other approvals that include buffer. A riparian forest buffer may be required to be incorporated within the boundaries of a project site in accordance with this section by other rules, regulations, order, permit or other approval of the Department.
(3) Discharges into the buffer. Concentrated flow and accelerated erosion and sedimentation shall be managed in the area upgrade and along the riparian forest buffer in accordance with §§ 102.4(b)--(e) and § 102.8 (relating to erosion and sediment control requirements; and PCSM requirements).
(4) Existing buffer composition. An existing riparian forest buffer must: meet the requirements of subsection (d); consist predominantly of native trees and shrubs that provide at least 60% uniform canopy cover; noxious weeds and invasive species must be removed or controlled to the extent possible.
(5) Existing site enhancement. Existing sites that consist of predominantly native woody vegetation that do not meet all of the criteria in paragraph (3) shall be enhanced or widened, or both, by additional plantings in open spaces around existing native trees and shrubs to establish a riparian forest buffer. Noxious weeds and invasive species shall be removed or controlled to the extent possible.
(6) Buffer establishement. On sites with no native woody vegetation, a riparian forest buffer shall be established in accordance with this chapter.
(7) Wetlands and buffers. Wetlands located in the riparian forest buffer shall be protected and maintained consistent with Chapter 105 (relating to dam safety and waterway management).
(8) Plan submission. The applicant shall prepare and submit a plan for riparian forest buffer management to the Department or conservation district as part of the PCSM Plan. The riparian forest buffer management plan must describe how the management requirements of this section will be met.
(b) Composition.
(1) Buffer zones. At a minimum, newly established riparian forest buffers must be composed of two distinct zones, Zones 1 and 2 (See paragraph (2) regarding zones). Concentrated flow and accelerated erosion and sedimentation shall be managed in the area upgrade and along the riparian forest buffer in accordance with this subsection and subsections (c)--(e) and § 102.8.
(2) Zones.
(i) Zone 1. Undisturbed forest (trees) must begin at the top of the streambank or normal pool elevation of a lake, pond or reservoir and occupy a strip of land measured horizontally on a line perpendicular from the top of streambank or normal pool elevation of a lake, pond or reservoir. Predominant vegetation must be composed of a variety of native riparian tree species.
(ii) Zone 2. Managed forest (trees and shrubs) must begin at the landward edge of Zone 1 and occupy an additional strip of land measured horizontally on a line perpendicular from the top of streambank or normal pool elevation of a lake, pond or reservoir. Predominant vegetation must be composed of a variety of native riparian tree and shrub species.
(c) Measurements. Riparian forest buffers must be measured horizontally with no more than a 10% variation below the minimum width from the normal pool elevation for lake, pond or reservoir and from top of streambank or top of slope for streams.
(d) Average minimum widths.
(1) All waters. One hundred feet (50 feet Zone 1 and 50 feet Zone 2 for newly established riparian forest buffers) along all rivers, perennial or intermittent streams (both sides), lakes, ponds or reservoirs. Concentrated flow and accelerated erosion and sedimentation shall be managed in the area upgrade and along the riparian forest buffer in accordance with §§ 102.4(b)--(e) and § 102.8.
(2) Impaired waters. One hundred fifty feet (75 feet Zone 1 and 75 feet Zone 2 on newly established riparian forest buffers) along all rivers, perennial or intermittent streams (both sides), lakes, ponds or reservoirs. Concentrated flow and accelerated erosion and sedimentation shall be managed in the area upgrade and along the riparian forest buffer in accordance with §§ 102.4(b)--(e) and 102.8.
(3) Special protection waters. One hundred fifty feet (75 feet Zone 1 and 75 feet Zone 2 on newly established riparian forest buffers) in special protection waters (High Quality and Exceptional Value designations) on all rivers, perennial or intermittent streams (both sides), and the shoreline of lakes and ponds. Concentrated flow and accelerated erosion and sedimentation shall be managed in the area upgrade and along the riparian forest buffer in accordance with §§ 102.4(b)--(e) and 102.8.
(4) Existing buffer width. Existing riparian forest buffers must meet minimum aggregate widths of this chapter.
(5) Average buffer width. The average riparian forest buffer width shall be calculated based upon the entire length of streambank or shoreline that is located within the boundaries of the project site When calculating the buffer length the natural streambank or shoreline shall be followed.
(e) Management requirements.
(1) Both existing and newly established riparian forest buffers, including wetlands and floodplains, shall be managed and maintained to enhance and maximize the unique value of these resources.
(2) Newly established riparian forest buffers and sites with existing woody vegetation shall be managed in accordance with the riparian forest buffer management plan and until established vegetation consists of predominantly native trees and shrubs that provide at least 60% uniform canopy cover and noxious weeds and invasive species have been removed or controlled to the extent possible for a period of at least 5 years.
(3) The following practices and activities are prohibited within the riparian forest buffer:
(i) Soil disturbance by grading, stripping of topsoil, plowing, cultivating or other practices.
(ii) Draining by ditching, underdrains or other drainage systems.
(iii) Housing, grazing or otherwise maintaining animals.
(iv) Storing or stockpiling materials.
(v) Off road vehicular travel.
(4) The following practices and activities are acceptable in the riparian forest buffer when permitted by the Department:
(i) Construction or placement of roads, bridges, trails, storm drainage, utilities or other structures.
(ii) Water obstructions or encroachments.
(5) The following practices and activities are allowable within the riparian forest buffer:
(i) Activities or practices used to maintain the riparian forest buffer including the disturbance of existing vegetation, tree removal, shrub removal, clearing, mowing, burning, or spraying in accordance with the long-term operation and maintenance plan.
(ii) Restoration projects, facilities, emergency response and other activities approved by the Department.
(iii) Scientific studies approved by the Department, including water quality monitoring and stream gauging.
(iv) Timber harvesting operations only in Zone 2, as described in this section, that maintain at least 60% uniform canopy cover of predominantly native trees and shrubs and are identified in a Forest Stewardship Plan approved by the Department of Conservation and Natural Resources.
(v) Passive recreational activities.
(f) Permanent protection of riparian forest buffers.
(1) Existing and newly established riparian forest buffers including access easements must be protected in perpetuity through deed restriction, conservation easement, local ordinance or permit conditions.
(2) For any existing or newly established riparian forest buffer, the boundary limits of the riparian forest buffer must be identified and clearly marked.
(g) Reporting. Permittees shall complete data forms provided by the Department for newly established and existing riparian forest buffers and submit them to the Department or conservation district as part of the PCSM Plan.
§ 102.15. Permit-by-rule for low impact projects with riparian forest buffers.
(a) Qualifying for coverage. Persons proposing or conducting an earth disturbance activity requiring a permit authorization under this chapter shall qualify for permit coverage under this rule if they meet the requirements of this section, which supersede any requirements of Chapter 92 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance). An earth disturbance activity that requires a permit authorization under this chapter that is not consistent with this section shall obtain coverage under a general or individual NPDES Permit for Discharges Associated with Construction Activities or other E & S control permit under this chapter prior to commencing the earth disturbance activity.
(b) Permit-by-rule exclusions. The following sites or the activities associated with the project are not eligible for coverage under the permit-by-rule:
(1) Projects located in or with the potential to discharge to waters that have a designated or existing use of Exceptional Value under Chapter 93 (relating to water quality standards).
(2) Earth disturbance activities conducted in or on the following sensitive areas:
(i) Highly erodible conditions (soils in combination with percent slope) as follows:
(A) 3% to 8% slope with soil K factor greater than 0.37.
(B) 8% to 15% slope with soil K factor greater than 0.28.
(C) 15% slope with soil K factor greater than 0.18.
(ii) Geological formations that present a risk to public health, safety and the environment including:
(A) Sinkhole development.
(B) Land sliding.
(C) With the significant potential to cause or contribute to pollution when disturbed; including acid, radioactive and arsenic bearing formations.
(iii) Wetlands or floodplains, unless earth disturbance in these areas is required for access and utilities and is authorized under Chapter 105 or 106 (relating to National Pollutant Discharge Elimination System permitting, monitoring and compliance; and floodplain management).
(3) Lands that are currently contaminated from a spill or release of a hazardous material, or hazardous, toxic, or other regulated substance, as these terms are defined in this title, that pose a risk or threat to public health, safety, or the environment.
(4) The earth disturbance is being proposed or conducted by a person who has failed and continues to fail to comply or has shown a lack of ability or intention to comply with a regulation, permit and schedule of compliance or order issued by the Department.
(5) The earth disturbance activities or potential discharges will adversely affect a Pennsylvania or federal endangered or threatened species.
(c) Permit conditions. Persons conducting earth disturbance activities under this permit shall meet the following requirements:
(1) Persons seeking coverage under permit-by-rule shall first schedule a presubmission meeting with the Department or the conservation district prior to submitting an ROC. The meeting shall also be attended by the professional engineer, geologist or landscape architect registered in this Commonwealth that will be responsible for project design and the operator when known. At the presubmission meeting, the registrant shall provide:
(i) A site location map (United States Geologic Survey or equivalent) including:
(A) All waters of this Commonwealth and water quality classifications under Chapter 93 (relating to water quality standards).
(B) Existing site conditions.
(C) Limits of earth disturbance activities.
(D) Preliminary site design.
(E) Total project acres and boundaries.
(ii) A presubmission meeting checklist using a form provided by the Department.
(2) When the project site contains, is along, or within 100 feet of a river, stream, creek, lake, pond or reservoir, the registrant shall:
(i) Establish new or preserve existing riparian forest buffers at least 100 feet in width between the top of streambank or normal pool elevation of a lake, pond or reservoir and areas of earth disturbance.
(ii) Establish new or preserve existing riparian forest buffers at least 150 feet in width between the top of streambank or normal pool elevation of a lake, pond or reservoir and disturbed areas for projects located in high quality or impaired watersheds.
(iii) Design or maintain, or both, a riparian forest buffer in accordance with Riparian Forest Buffer Guidance, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 395-5600-001 (2009), as amended and updated.
(3) The earth disturbance must not exceed 15 acres at a time. If the total disturbed area will exceed 15 acres over the life of the project, earth disturbance shall be sequenced in a manner that provides for stabilization prior to disturbance of subsequent phases.
(4) Earth disturbance activities on any portion, part, or during any stage of, a larger common plan of development or sale over the life of the project must meet the requirements and be covered under a single ROC.
(i) Any significant new or increased changes to the earth disturbance activities that are not included in the original ROC shall be submitted to the Department or conservation district through an amended ROC in accordance with this section.
(ii) The new or increased earth disturbance activities may not commence until receipt of written verification of coverage.
(5) Analysis demonstrating that the PCSM BMPs will: meet the volume reduction and water quality requirements specified in an applicable Department approved and current Act 167 stormwater management watershed plan; or manage the net change for storms up to and including the 2-year/24-hour storm event when compared to preconstruction runoff volume and water quality. The analysis for the 2-year/24-hour storm event shall be conducted using the following minimum criteria:
(i) Existing predevelopment nonforested pervious areas must be considered meadow in good condition or its equivalent.
(ii) When the existing project site contains impervious area, 20% of the existing impervious area to be disturbed must be considered meadow in good condition or better, except for repair, reconstruction, or restoration of roadways or utility infrastructure when the site will be returned to existing condition.
(6) Analysis demonstrating that the PCSM BMPs will: meet the rate requirements specified in an applicable Department approved and current Act 167 stormwater management watershed plan; or manage the net change in peak rate for the 2-, 5-, 10-, 25-, 50-, and 100-year/24-hour storm events in a manner not to exceed preconstruction rates.
(i) Hydrologic routing analysis is required to demonstrate this requirement is met.
(ii) Exempt from this requirement are Depart-ment-approved direct discharges to tidal areas or Department-approved no detention areas.
(7) Retain the services of a professional engineer, geologist or landscape architect registered in this Commonwealth who shall:
(i) Prepare and seal E & S and PCSM Plans to be submitted with the ROC which contain the following certification:
''I (name) do hereby certify, pursuant to the penalties of 18 Pa.C.S.A. § 4904, to the best of my knowledge, information and belief that the ROC, E & S and PCSM Plans are true and correct, and are in conformance with Chapter 102 of the rules and regulations of the Department of Environmental Protection.''(ii) Identify in the E & S and PCSM Plans a schedule of inspections for critical stages of E & S and PCSM BMP installation and provide oversight responsibility during construction of those critical stages.
(iii) Oversee and seal any necessary modifications to E & S and PCSM Plans; and submit copies of modified plans to the Department or conservation district.
(iv) Prepare and seal record drawings and provide certification that the E & S and PCSM BMPs were installed consistent with E & S and PCSM Plans submitted with the ROC.
(8) Upon receipt of the Verification of Coverage, the registrant shall notify the Department or conservation district at least 7 business days before commencing construction.
(9) The registrant or co-registrant shall have the E & S Plan, PPC Plan, PCSM Plan, and other documents required by this permit-by-rule available at the site for review by the Department, conservation district, or other authorized local, State or Federal government official.
(10) The registrant shall implement the plans developed and verified in accordance with this section.
(11) The registrant or an agent shall notify the Department or conservation district at least 3 days prior to critical stages of E & S and PCSM BMP installation.
(d) Projects located in High Quality watersheds or watersheds impaired for sediment or stormwater.
(1) Watersheds. Permit-by-rule registrants proposing projects that are located in watersheds that have a designated or existing use of high quality, or nonspecial protection waters impaired for sediment or stormwater shall demonstrate that all construction and post construction discharges will not degrade the physical, chemical or biological characteristics of the surface waters and may not utilize the social or economic justification process established under § 93.4c(b)(iii) (relating to implementation of antidegradation requirements). In addition to the 150-foot riparian forest buffer, registrants shall utilize solely nondischarge alternative BMPs in their E & S and PCSM Plans.
(2) Public notice.
(i) The registrant shall provide a public notice once a week for 3 consecutive weeks in at least one newspaper of general circulation within the geographical area of the project site prior to submission for the ROC. The contents of every public notice must include the following:
(A) The name, address and phone number of the registrant.
(B) A 30-day period following publication of the notice during which written comments may be submitted by interested persons to the applicant.
(C) A brief description of each registrant's activities and project location which result in the discharge proposed for the permit-by-rule.
(D) The name of the receiving water and watershed to which each discharge is made and a short description of the location of each discharge on the waterway indicating whether the discharge is a new or an existing discharge.
(E) The location of the nearest downstream potable water supply, or a finding that no potable water supply will be affected by the proposed discharge.
(F) The means by which interested persons may comment upon the proposed project.
(G) Contact information including the name, address and phone number where interested persons may obtain further information regarding the project.
(H) The existing or designated use of the receiving surface water under Chapter 93.
(ii) The registrant shall provide proof that public notice has been published in a newspaper of general circulation covering the locality or localities in which the activity is or will be located. The proof of public notice, along with any comments and responses, shall be submitted with the ROC.
(e) Municipal notification. At least 30 days prior to submission of the ROC, the registrant shall provide written notification to every municipality in which the proposed earth disturbance activity will be located under section 1905-A of The Administrative Code of 1929 (71 P. S. § 510-5). Proof of this notification shall be submitted with the complete ROC.
(f) Written E & S Plan, PCSM Plan and PPC Plan. The registrant shall develop an E & S Plan, PCSM Plan and PPC Plan in accordance with the requirements of this chapter and the following:
(1) The E & S BMPs required by this section shall be designed and implemented to meet the standards and specifications identified in the Department's Erosion and Sediment Pollution Control Manual, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-2134-008 (April 2000), as amended and updated.
(2) PCSM BMPs shall be designed and implemented to meet the standards and specifications identified in the Pennsylvania Stormwater Best Management Practices Manual, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-0300-002 (December 2006), as amended and updated.
(3) Both the E & S Plan and the PCSM Plan must include a riparian forest buffer designed in accordance with § 102.14 (relating to riparian forest buffer requirements) and this section.
(4) Both the E & S Plan and PCSM Plan must minimize the accelerated erosion and sedimentation and must use PCSM BMPs that collectively achieve no net change when compared to preconstruction discharges in stormwater runoff volume, rate and water quality. This shall be accomplished first through the use of site design and nonstructural BMP approaches, and if necessary, structural filtration, infiltration and runoff control BMPs in accordance with Erosion and Sediment Pollution Control Manual, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-2134-008 (April 2000), and Stormwater Best Management Practices Manual, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 363-0300-002 (December 2006), as amended and updated.
(5) Both the E & S Plan and PCSM Plan shall be prepared and sealed by a professional engineer, geologist or landscape architect registered in this Commonwealth.
(6) Prepare a PPC Plan in accordance with Guidelines for the Development and Implementation of Environmental Emergency Response Plans, Commonwealth of Pennsylvania, Department of Environmental Protection, No. 400-2200-001 (April 2001), as amended and updated.
(g) E & S Plan for the permit-by-rule. The E & S Plan submitted under this section must meet the requirements of § 102.4 (relating to erosion and sediment control requirements) and also include the following categories of E & S BMPs to be installed and maintained. The installation of BMPs shall be conducted in the following sequence:
(1) Site preparation, sensitive area and buffer protection. Prior to commencement of any earth disturbance activity including clearing and grubbing, the registrant shall clearly delineate sensitive areas, riparian forest buffer boundaries, areas proposed for infiltration practices, the limits of clearing, and trees that are to be conserved within the project site and install appropriate barriers where equipment may not be parked, staged, operated or located for any purpose.
(2) Site access. This is the first land-disturbance activity to take place at the site and the registrant should provide BMPs to minimize accelerated erosion and sedimentation from the following areas: entrance to the site, construction routes, and areas designated for equipment or other use at the site including parking areas and soil stockpiles.
(3) Sediment barriers. The registrant shall install perimeter BMPs after the construction site is accessed, keeping associated clearing and grubbing limited to only that amount required for installing perimeter BMPs.
(4) Diversion. The registrant shall include outlet protection, constructed to divert upslope clean water runoff around the disturbed area (when necessary).
(5) Sediment basins and traps. Outlet protection included shall be constructed prior to the remaining clearing/grubbing and other earth disturbance activities.
(6) Sediment laden water channels or other conveyance. This method shall be used to divert stormwater runoff water to the appropriate BMPs such as traps and ponds and should be installed prior to the remaining clearing/grubbing and other earth disturbance activities.
(7) Land clearing and grading. The registrant shall implement clearing and grading only after all downslope E & S BMPs have been constructed and stabilized.
(8) Surface stabilization. The registrant shall apply temporary or permanent stabilization measures immediately to any disturbed areas where work has reached final grade, has been delayed or otherwise has been temporarily suspended.
(9) Construction of buildings, utilities, and paving. During construction, the registrant shall install and maintain any additional E & S BMPs that may be required and implement structural PCSM BMPs.
(10) Landscaping and final stabilization, topsoiling, trees, and shrubs. After construction is completed, the registrant shall install stabilization BMPs including: permanent seeding, mulching, sodding and riprap, and complete implementation of PCSM BMPs in this last construction phase. The registrants stabilize all open areas, including borrow and spoil areas, and remove all temporary BMPs and stabilize any disturbances associated with the removal of the BMP.
(h) PCSM Plan for the permit-by-rule. The PCSM Plan submitted under this section must meet the requirements of § 102.8 (relating to PCSM requirements), and also include the following categories of BMPs to be installed and maintained:
(1) Nonstructural BMPs. Nonstructural BMPs which promote the treatment, infiltration, evaporation and transpiration of stormwater runoff shall be used.
(2) Low impact, conservation and green infrastructure designs. These designs shall be used to minimize the generation of runoff by preserving open space, preserving natural areas, reducing the amount of impervious surface, and other green infrastructure design principles that utilize or mimic infiltration or evapotranspiration.
(3) Volume reduction and infiltration practices. These practices must include either engineered structures or landscape features designed to capture, reuse, recycle and manage, or infiltrate runoff that mimic preconstruction conditions.
(4) Runoff practices. These practices shall be designed and constructed to convey runoff, increase evaporation and manage rate. The practices are to also promote infiltration, filtration and biological uptake of pollutants.
(5) Filtration practices. These practices shall be used to treat runoff through filter media that are designed to capture pollutants through the processes of physical filtration of solids or cation exchange of dissolved pollutants.
(i) ROC under the permit-by-rule. Registrants seeking coverage under this permit-by-rule shall prepare and submit a complete ROC to the Department or conservation district. The ROC must demonstrate eligibility under and compliance with this section and include:
(1) An ROC checklist.
(2) An E & S Plan prepared by a professional engineer, geologist or landscape architect registered in this Commonwealth.
(3) A PCSM Plan prepared by a professional engineer, geologist, or landscape architect registered in this Commonwealth.
(4) Proof of municipal notice.
(5) Proof of public notice along with all comments and responses for projects in High Quality watersheds impaired for sediment or stormwater.
(6) Proof of consultation with the PNHP regarding the presence of a State or Federal threatened or endangered species on the project site.
(7) Applicable fees.
(j) Eligibility verification. Upon submission of the ROC, the Department or the conservation district will review the ROC for consistency with the eligibility criteria, conditions and other requirements of this section, and make a determination of coverage within 30 days. Upon determination of eligibility, the Department or the conservation district will provide written verification of coverage for 5 years. The registrant may apply for other permit coverage as referenced in this section if coverage under this permit-by-rule is denied.
(k) Coverage notice. The Department will provide notice in the Pennsylvania Bulletin of every approval of coverage under this permit-by-rule.
(l) Requiring coverage under an individual permit or general permit.
(1) The Department may deny coverage under this permit-by-rule, or may amend, revoke, suspend or terminate previously issued coverage under this permit-by-rule and require the registrant to apply for and obtain either a general or an individual NPDES permit for failure to meet the requirements of this section. An interested person may petition the Department to take action under this subsection. If a permittee is notified by the Department that previously authorized coverage under this permit is revoked, terminated or suspended and that a general or individual NPDES permit is required, the registrant shall submit a complete NPDES NOI or application, in conformance with this chapter, within 90 days of receipt of the notification, unless the discharger is already in possession of a valid general or individual NPDES permit. Failure to submit the NOI or application within 90 days shall result in automatic termination of coverage under the permit-by-rule. If the project site is in compliance with this chapter, a timely submission of a complete NOI or application shall result in continuation of coverage under the permit-by-rule until the Department takes final action on the pending NOI or permit application.
(2) An action of the Department or the conservation district denying coverage under this permit-by-rule, or requiring a general or an individual NPDES permit, is not a final action of the Department until the registrant submits and the Department takes final action on an individual permit application.
(m) ROC. Persons requesting an ROC under this permit-by-rule shall submit to the Department or conservation district an administratively complete and acceptable ROC at least 30 days prior to the expiration date of the coverage. In the event that a timely, administratively complete, and acceptable application for renewal of coverage has been submitted and the Department or conservation district is unable, through no fault of the permittee, to reissue the approval for coverage before the expiration date of the approved coverage, the terms and conditions of the approved coverage will be automatically continued and will remain fully effective and enforceable pending the issuance or denial of the renewal of coverage, provided the permittee is, and has been, operating in compliance with the terms and conditions of the permit-by-rule.
(n) Other permits or approvals. Nothing in this permit-by-rule relieves the registrant of the obligation to obtain any other applicable permits, or of complying with all Federal, State or local laws, regulations or standards for the construction, operation and maintenance of the project.
(o) Termination of coverage. A permit-by-rule registrant covered under this section shall comply with § 102.7 (relating to permit termination) to terminate permit coverage.
(p) Program audit.
(1) The Department will audit the permit-by-rule to verify the effectiveness and the level of environmental protection that the permit provides. The audit will include the following:
(i) Evaluation of whether the objectives of riparian forest buffers, conservation design and permittee compliance are being met.
(ii) Whether the professional engineer, geologist or landscape architect registered in this Commonwealth plan certifications are accurate and effective.
(iii) The adequacy of permittee plan development and BMP implementation and maintenance.
(iv) The effectiveness of achieving the desired environmental results.
(2) This audit process will not only report noncompliance and corrective actions, but also highlight areas of good practices and favorable results. That information will be used to develop policy or amend regulations for enhanced and continual improvement.
§ 102.22. [Permanent] Site stabilization.
(a) Permanent stabilization. Upon final completion of an earth disturbance activity or any stage or phase of an activity, the site shall [be] immediately have topsoil restored, replaced, or amended, seeded, mulched or otherwise permanently stabilized and protected from accelerated erosion and sedimentation.
[(b) Erosion and sediment control]
(1) E & S BMPs shall be implemented and maintained until the permanent stabilization is completed. Once permanent stabilization has been established, the temporary E & S BMPs shall be removed. Any areas disturbed in the act of removing temporary E & S BMPs shall be permanently stabilized upon completion of the temporary E & S BMP removal activity.
[(c)](2) 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)](i) A minimum uniform 70% perennial vegetative cover, with a density capable of resisting accelerated erosion and sedimentation.
[(2)](ii) An acceptable BMP which permanently minimizes accelerated erosion and sedimentation.
(b) Temporary stabilization.
(1) Upon temporary cessation of an earth disturbance activity or any stage or phase of an activity where a cessation of earth disturbance activities will exceed 3 days, the site shall be immediately seeded, mulched, or otherwise protected from accelerated erosion and sedimentation pending future earth disturbance activities.
(2) For an earth disturbance activity or any stage or phase of an activity to be considered temporarily stabilized, the disturbed areas shall be covered with one of the following:
(i) A minimum uniform coverage of mulch and seed, with a density capable of resisting accelerated erosion and sedimentation.
(ii) An acceptable BMP which temporarily minimizes accelerated erosion and sedimentation.
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.
* * * * * (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] The Clean Streams Law (35 P. S. § 691.1--691.1001)
(c) A person aggrieved by an action of a conservation district under this chapter may request an informal hearing with the Department within 30 days following the notice of the action. Any final determination by the Department under the informal hearing may be appealed to the EHB in accordance with established administrative and judicial procedures.
(d) For enforcement action taken under this subchapter, the Department or conservation district may collect or recover, from the responsible party, costs and expenses involved in taking enforcement action in accordance with this subchapter and initiating cost recovery actions under this subchapter. The Department or conservation district may collect the amount in the same manner as civil penalties are collected under section 605 of The Clean Streams Law (35 P. S. § 691.1605).
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] 1 acre ([2] 0.4 hectares) or more.
§ 102.43. Withholding permits.
[A] With the exception of local stormwater approvals or authorizations, 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] E & S 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).
[Pa.B. Doc. No. 09-1610. Filed for public inspection August 28, 2009, 9:00 a.m.]
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.
